NOLL v. FLOWERS FOODS INC et al
ORDER granting 46 Motion for Conditional Certification and Court-Supervised Notice By JUDGE JOHN A. WOODCOCK, JR. (jwr)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
TIMOTHY NOLL, individually and
on behalf of all similarly situated
FLOWERS FOODS, INC., LEPAGE
BAKERIES PARK STREET LLC,
and CK SALES CO., LLC,
ORDER ON MOTION FOR CONDITIONAL CERTIFICATION AND
In this Fair Labor Standards Act and Maine wage and hour law case, the
named plaintiff alleges that the Defendants misclassified their bakery distributor
drivers as independent contractors thereby denying them the rights and benefits of
employment, including overtime wages.
On December 3, 2015, Timothy Noll filed a class and collective action complaint
against Flowers Foods, Inc. (Flowers Foods), LePage Bakeries Park Street LLC
(LePage Bakeries), and CK Sales Co., LLC (CK Sales). Class & Collective Action
Compl. (ECF No. 1).
On April 18, 2016, Mr. Noll filed the instant motion for conditional certification
of a class and court-supervised notice for his claim under the Fair Labor Standards
Act (FLSA), 29 U.S.C. §§ 201 et seq. Pl.’s Mot. for Conditional Certification & Court-
Supervised Notice of Pending Collective Action & Req. for Oral Arg. (ECF No. 46).
Mr. Noll also requested oral argument on the issue; the Court granted his request for
oral argument on July 15, 2016 to be scheduled at the mutual convenience of the
parties and the Court. Id.; Order (ECF No. 66).
Initially, the Defendants opposed the motion for conditional certification.
Defs.’ Opp’n to Pl.’s Mot. for Conditional Certification (ECF No. 59). Mr. Noll replied
on July 8, 2016. Reply Mem. in Supp. of Pl.’s Mot. for Conditional Certification &
Judicial Notice (ECF No. 65). On November 15, 2016, Mr. Noll filed a notice of
supplemental authority regarding orders granting conditional certification in two
related cases: Opinion & Order, Neff v. Flowers Foods, Inc., No. 5:15-cv-00254 (D. Vt.
Nov. 7, 2016), ECF No. 56 and Coyle v. Flowers Foods Inc., No. CV-15-01372-PHXDLR, 2016 WL 4529872 (D. Ariz. Aug. 30, 2016).
Notice of Suppl. Authority
Regarding Pl.’s Mot. for Conditional Certification (ECF No. 69).
On January 19, 2017, after the Court attempted to schedule the oral argument,
the parties notified the Court that they had reached an agreement. Specifically, the
Defendants agreed to withdraw their Objection to Motion for Conditional
Certification (ECF No. 59) on the condition that the Defendants will have thirty days
from the Court’s granting of the motion to provide contact information for the
Distributors and that the contact information will be limited to names, addresses,
email addresses, and telephone numbers. The Defendants reserved the right to file
a motion for decertification following discovery.
The Court accepts the parties’ agreement and therefore authorizes the
conditional certification of the class for the FLSA claim and court-supervised notice,
as requested by Mr. Noll in his motion, subject to the Defendants’ condition regarding
the Distributors’ contact information.
However, under the guidance provided in Hoffmann-La Roche Inc. v. Sperling,
493 U.S. 165 (1989), the Court conducted its own review of the proposed notice,
consent, and reminder forms to ensure that they are not an endorsement of any action
and that they are fair and factual in all respects. See generally id. at 174 (“In
exercising the discretionary authority to oversee the notice-giving process, courts
must be scrupulous to respect judicial neutrality. To that end, trial courts must take
care to avoid even the appearance of judicial endorsement of the merits of the action”).
Based on this review, the Court concludes that the phrase “A Federal District Court
authorized this notice” could suggest judicial endorsement of the action. See Curtis
v. Scholarship Storage Inc., No. 2:14-cv-303-NT, 2015 WL 1241365, at *6 (D. Me. Mar.
18, 2015). Therefore, Mr. Noll shall substitute the phrase “A Federal District Court
authorized this notice” for the phrase “A Federal District Court approved the sending
of this notice” on pages one and four of the proposed notice. Subject to this change,
the notice, consent, and reminder forms are appropriate and shall be distributed in
accordance with Mr. Noll’s requests.
Accordingly, the Court GRANTS Mr. Noll’s Motion for Conditional
Certification and Court-Supervised Notice (ECF No. 46). The Court generally adopts
Mr. Noll’s view of the definition of the putative class as set forth in the Plaintiff’s
motion: “All persons who are or have performed work as Distributors for Flowers
Foods, Inc., LePage Bakeries Park Street LLC, and/or CK Sales Co., LLC in the state
of Maine under a Distributor Agreement or a similar written contract that they
entered into during the period commencing three years prior to the date of the filing
of the Complaint in this case or December 3, 2012 and continuing through the close
of the Court-determined opt-in period.” The Court approves Mr. Noll’s proposed
notice, consent, and reminder forms, subject to the modifications discussed above,
and AUTHORIZES Mr. Noll to circulate the notice and consent form to all potential
class members and to send the reminder notices forty-five (45) and seventy-five (75)
days after the first notice is mailed.
The Court makes the following additional ORDERS:
The Defendants shall deliver to Mr. Noll a computer readable data file
containing information relating to all Distributors who worked for the
Defendants since December 3, 2012 within thirty (30) days from the date
of this Order. This information shall include the Distributors’ names,
addresses, email addresses, and telephone numbers.
The parties shall enter into a confidentiality agreement concerning the
computer readable data file within twenty (20) days from the date of this
The Defendants shall prominently post the notice in each of the LePage
Bakeries and CK Sales warehouses in the state of Maine in a
conspicuous place frequented by the Distributors and notice shall
remain posted throughout the duration of the opt-in period.
The putative class members shall have ninety (90) days from the date of
this Order to join the case.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 20th day of January, 2017
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