Young et al v. Chieftain Coating, LLC et al

Filing 50

ORDER Granting 15 Motion for Protective Order. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
COLLETTE YOUNG et al.,
Plaintiffs,
Case No. 20-CV-10520-DT
v.
HON. DENISE PAGE HOOD
CHIEFTAIN COATING, LLC, et al.,
Defendants.
___________________________________/
ORDER GRANTING MOTION FOR PROTECTIVE ORDER
I.

BACKGROUND
On February 28, 2020, Plaintiffs Collette Young and Henry Bennett filed a

Collective Action complaint under Fair Labor Standards Act (“FLSA”), 29 U.S.C. §
201 against Defendants Chieftain Coating, LLC, Burkard Industries, Inc, and John
“Jay” Burkard. [Complaint, ECF No. 1]. All Defendants filed their answers to the
complaint on May, 11, 2020. [ECF Nos. 17, 18]
Burkard Industries in Clinton Township, Michigan, provided metal finishing
services to customers and employs hourly production workers [ECF No.1, Page.ID
4] [ECF No. 10, Page.ID 53] Plaintiffs Young and Bennett were employed as hourly
production employees at Burkard Industries. [ECF No.1, Page.ID 4] Young worked
for Burkard from 1997-2019 and Bennett from 1993-2019. [ECF No.1, Page.ID 4-5]
[ECF No. 18 at 284] Bennett was employed with Chieftain after October 31, 2019.

[ECF No. 18, Page.ID 285] Phyllis Holland, Linda Lietz, Ariana Thompson, and Raif
Zenuni also worked for Burkard Industries. Attached to the complaint are opt-in
consent forms from the two named Plaintiffs as well as consent forms from Phyllis
Holland, Linda Lietz, Ariana Thompson, and Raif Zenuni. [ECF No. 10, Page.ID 5456] [ECF No. 18, Page.ID 285] [ECF No. 1-1, Page.ID 22-30]
Plaintiffs state that the job duties of hourly production workers included
physically hanging metal parts on the production lines; washing, masking, and coating
the parts; moving the parts back off the production lines; and packaging the parts for
distribution. [ECF No. 10, Page.ID 55]. Plaintiffs allege that Defendants maintained
an employment policy, which is the basis of this FLSA complaint, that required hourly
production employees like Plaintiffs to work unpaid overtime hours before, during,
and after their scheduled shifts. [ECF No.10, Page.ID 56]
On May 1, 2020 Defendants Burkard Industries and John “Jay” Burkard sent
letters to former employees which contained checks for “backpay, including any
overtime” that were calculated after an audit of their wage and hour records. [ECF
No. 15, Page.ID 77-78] [ECF No. 15-1, Page.ID 207] The letter offered former
employees an additional $125 for signing the attached “acknowledgment and waiver
of potential class claims” and sending it back to Jay Burkard through mail or email by
May 15, 2020. [ECF No. 15-1, Page.ID 207] The letter did not mention the current

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pending lawsuit against the Defendants.
This matter is before the Court on Plaintiffs’ Motion for Protective Order
regarding communications sent to employees by Defendants. Defendants oppose the
motion. A hearing was held on the matter.
II.

ANALYSIS
A.

Standard of Review

To prevent abuse in a FLSA Collective Action, district courts have the broad
discretion and duty to enter appropriate orders governing the conduct of counsel and
the parties. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170–71 (1989) (citing
Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981)). This standard was originally
articulated in Gulf Oil Co. to apply to Rule 23 class actions. In Hoffman-LaRoche, the
Court adopted the same standard for ADEA actions, which incorporate FLSA
procedures. Id. As a result, Hoffman-LaRoche is commonly cited as an authority in
FLSA cases.
A court will traditionally exercise its authority to assure the orderly and
expeditious disposition of cases. Id. at 172-73. (citing Link v. Wabash R. Co., 370 U.S.
626, 630–631 (1962)). Under Rule 83, district courts may regulate practice in any
manner not inconsistent with federal or local rules for any case not provided for by
rule. Id. A court’s interest in managing collective actions in an orderly fashion is also

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supported by Rule 16. Id. Through the scheduling order and pretrial conferences,
courts are encouraged to address “the need for adopting special procedures for
managing potentially difficult or protracted actions that may involve complex issues,
[or] multiple parties.” Id. (citing Fed. R. Civ. P.16(c)(10))
B.

Protective Order
1.

Law

An order limiting communications between parties and potential class members
should be based on a clear record and specific findings that reflect a weighing of the
need for a limitation and the potential interference with the rights of the parties. Gulf
Oil Co., 452 U.S. at 101. The party requesting a protective order must demonstrate
that (1) a certain form of communication has occurred or is threatened to occur, and
(2) the form of communication is abusive to the proper functioning of the litigation.
Cox Nuclear Med. v. Gold Cup Coffee Servs., Inc., 214 F.R.D. 696, 697-98 (S.D. Ala.
2003). Abusive communications that courts have found sufficient to warrant a
protective order include those which:

coerce prospective class members into

excluding themselves from the litigation; contain false, misleading, or confusing
statements; or undermine cooperation with or confidence in class counsel. Id.
The Sixth Circuit has not directly addressed the issue of First Amendment
concerns related to limiting communications in an FLSA suit. However, courts within

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the Sixth Circuit have followed Eleventh Circuit precedent, which states that an order
to limit communications concerning ongoing litigation may be granted if it is (1)
grounded in good cause, and (2) issued with a heightened sensitivity for First
Amendment concerns. Murton v. Measurecomp, LLC, 2008 U.S. Dist. LEXIS
108085, *12-14 (N.D. Ohio Dec. 2, 2008) (citing Kleiner v. First Nat. Bank of
Atlanta, 751 F.2d 1193, 1205 (11th Cir. 1985)). See also Lewis v. Huntington Nat.
Bank, 789 F. Supp. 2d 863, 871 (S.D. Ohio 2011); Friedman v. Intervet Inc., 730 F.
Supp. 2d 758, 762 (N.D. Ohio 2010). Four criteria to determine “good cause” are: (1)
the severity and likelihood of the perceived harm; (2) the precision with which the
order is drawn; (3) the availability of a less onerous alternative; and (4) the duration
of the order. Kleiner, 751 F.2d at 1205.
2.

Non-compliance with Local Rule 7.1(a)

Without addressing the merits of Plaintiffs’ Motion, Defendants argue that
Plaintiffs’ Motion should be stricken for non-compliance with Local Rule 7.1(a).
[ECF No. 25 Page.ID 359] Defendants claim that parties are required by Local Rule
7.1(a) to confer and solve disputes privately before seeking Court intervention and
that Plaintiffs’ failure to give adequate time for Defendants to respond is a violation
of Local Rule 7.1. All About Chores LLC v. Lyon, No. 18-CV-12000, 2019 WL
2590750, at *1-2 (E.D. Mich. June 25, 2019); United States v. Fisher, No. CRIM. 05-

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50023, 2006 WL 334246, at *1 (E.D. Mich. Feb. 10, 2006); Dupree v. Cranbrook
Educ. Cmty., No. 10-12094, 2012 WL 1060082, at *13 (E.D. Mich. Mar. 29, 2012);
Delisle v. Sun Life Assur. Co. of Canada, No. 06-11761, 2007 WL 4547884, at *4
(E.D. Mich. Dec. 19, 2007); Palumbo v. Commissaris, No. 2:16-CV-11209, 2017 WL
2240754, at *2 (E.D. Mich. May 23, 2017). [Id. at 360-61]. Defendants argue that
their counsel is making a good-faith effort to comply with the rules of this Court,
whereas Plaintiffs are trying to circumvent the local procedures through “overlyaggressive filings and postures” and should not be granted the Motion based on their
actions [Id. at 363]
Plaintiffs assert that counsel did not violate Local Rule 7.1 because time is of
the essence in FLSA cases and Plaintiffs specifically requested concurrence in their
email to Defendants, noting that their Motion would be filed “today” [ECF No. 28,
Page.ID 543] Plaintiffs support their argument by citing cases from the Eastern
District where the court chose not dismiss a motion based on noncompliance with
Local Rule 7.1(a). Jarvis v. Cooper, 2013 U.S. Dist. LEXIS 44717, *30-31 (E.D.
Mich. Oct. 9, 2019). [Id.]
The Court agrees that Plaintiffs did not offer sufficient time for Defendants to
respond to the email sent on the morning of May 8, 2020. Although the Court
recognizes that time is of the essence for potential Collective members, it is

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unreasonable for the Plaintiffs to expect a response from opposing counsel within an
hour of receiving an email; Plaintiffs’ counsel should have placed a telephone call to
Defendants’ counsel’s office if the matter was emergent. However, since Defendants
had the opportunity to address the motion, the Court declines to strike Plaintiffs’
motion.
3.

Abusive Communications

The Court first must address whether the Plaintiffs demonstrate a clear record
and specific findings of alleged communications with the putative Collective
Members. Plaintiffs provide the Court with two letters and waiver agreements sent to
potential Collective members, Rickie Bender [15-1, Page.ID 207-16] and Davon
Tucker [ECF No. 15-2, Page.ID 225-31] attached to their Motion. The content of the
letters are identical with the exception of the individual backpay calculations, which
vary based on Defendants’ determination of amount owed. [Id.] The letter sent by
Defendants states that the check is for “backpay, including any overtime” and
provides Defendants’ calculations on another page, which merely indicate the money
owed and on what date. [Id.] The Court finds this evidence of Defendants’
communications are sufficient to meet the first requirement of a Motion for a
Protective Order.
Next, the Court assesses whether the specific communications with the putative

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Collective members were abusive. Plaintiffs argue that Defendants’ communications
were coercive because they encouraged putative Collective members not to join the
case prior to having been made aware of the present suit or given Court-authorized
notice. [ECF No. 15 Page.ID 188] Plaintiffs argue that Defendants’ offer of backpay
and additional money in exchange for an arbitration agreement also undermined the
action because it discouraged putative Collective members from joining the suit and
evaded the Court’s managerial responsibility. [Id. at 190] Plaintiffs assert that
uninformed putative Collective members may not opt-in now because they believe
they are getting all their “backpay” and Defendants misled the Collective members
about choices of remedies available to them. [Id. at 190-91] Plaintiffs indicate that
Defendants’ communications were especially coercive because of the employeremployee relationship between the class proponents and the class. NLRB v. Gissel
Packing Co., 23 L.Ed.2d 547, 617-18 (1969); Abdallah v. Coca-Cola Co., 186 F.R.D.
672 (N.D. Ga. 1999) [Id. at 188]
Plaintiffs highlight a number of cases where courts found a defendant’s
communication to be misleading because it failed to include information about the
existence of a pending lawsuit. [Id. at 191] Cty. Of Santa Clara v. Astra USA, Inc.,
2010 U.S. Dist. LEXIS 78312, at *22-23 (N.D. Cal. July 8. 2010); Friedman v.
Intervet Inc., 730 F. Supp. 2d 758, 762 (N.D. Ohio 2010); Burford v. Cargill, Inc.,

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2007 U.S. Dist. LEXIS 1679, at *5 (W.D. La. Jan. 9, 2007). Plaintiffs emphasize that
with FLSA claims, the commencement of a lawsuit does not toll the applicable statute
of limitations, so “time is of the essence.” 29 U.S.C. § 256(b). Plaintiffs argue that
Defendants should not be able to communicate with employees until after the notice
period ends. [Id. at 192-93] Plaintiffs also argue that the Court should require
Defendants to complete a communication log. See e.g., Whitfield v. Trinity Rest.
Group, LLC, Case No. 18-cv-10973 (E.D. Mich. May 30, 2019) (ECF No. 58)
(ordering defendants keep a communication log after having communicated
improperly with putative collective members); Bourne v. Ansara Rest. Group, Inc.,
et al, Case No. 16-cv-10332 (E.D. Mich. June 29, 2016) (same) [Id. at 193]
Plaintiffs claim that the arbitration agreements are improper because they do not
convey the existence of the suit nor that plaintiffs could lose their right to participate
in the lawsuit by signing the agreement. [Id.] Plaintiffs also indicate that defense
counsel was clearly involved in the creation of Waiver Agreement because of the
“Clark Hill” tag on bottom of page. [Id. at 194] Plaintiffs argue that courts have held
that arbitration agreements or class waivers are improper. Degidio v. Crazy Horse
Saloon & Rest, Inc., 880 F.3d 135 (4th Cir. 2018); Billingsley v. Citi-Trends, Inc., 560
F. App’x 914, 921-24 (11th Cir. 2014); Balasanyan v. Nordstrom, Inc., 2012 WL;
760566, at *2 (S.D. Cal. Mar. 8, 2012); Williams v. Securitas Sec. Servs. USA, Inc.,

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2011 WL 2713741, at *2 (E.D. Pa. July 13, 2011); Astarita v. Menard, Inc., 2019 U.S.
Dist. LEXIS 194337 (W.D. Mo. Nov. 8, 2019). [Id.]
Defendants argue that Plaintiffs’ relief sought is unnecessary and overly
restrictive because it would undermine the Defendants’ First Amendment rights. [ECF
No. 25 Page.ID 363] Defendants argue that limitations on First Amendment rights
should only be imposed if serious coercion occurs, not merely potential coercion. [Id.]
Burrell v. Crown Cent. Petroleum, Inc., 176 F.R.D. 239, 244 (E.D. Tex. 1997); see
also In Re Winchell's Donut Houses, 1988 WL 135503, at *1 (Ct. of Chancery, Del.
Dec. 12, 1988). Defendants argue that an order prohibiting such communications
should therefore be limited, and based on a “clear record and specific findings” that
reflect a need to limit interferences with rights of parties. (quoting Gulf Oil Co., 452
U.S. at 102). See also Doe 1 v. Mich. Dep’t of Corr., No. 13-14356, 2014 WL
3809419, at *5 (E.D. Mich. Aug. 1, 2014); Perkins v. Benore Logistics Sys., Inc., No.
16-13717, 2017 WL 445603, at *2 (E.D. Mich. Feb. 2, 2017) [Exhibit 11]; Snelling
v. ATC Healthcare Servs., Inc., No. 2:11-CV-00983, 2013 WL 1386026, at *2-*3
(E.D. Mich. Apr. 4, 2013) [Exhibit 12]; Hathaway v. Masonry, No. 5:11-CV-121,
2011 WL 4916532, at *2 (W.D. Ky. Oct. 17, 2011) [Exhibit 13]; Parks v. Eastwood
Ins. Servs., Inc., 235 F. Supp. 2d 1082, 1084 (C.D. Cal. 2002).
Defendants further argue that because Plaintiffs’ protective order seeks to

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control “any and all conversations” between potential Collective members and
Defendants, it is overly broad. [Id. at 366] Reed v. Am. S.S. Co., 682 F. Supp. 333,
338 (E.D. Mich. 1988); see also Williams v. U.S. Dist. Court, 658 F.2d 430, 434 (6th
Cir. 1981).
Defendants claim that it would be prejudicial to limit Defendants’
communications prior to conditionally certifying a class as restrictions on speech
should only be used to the extent absolutely necessary and as narrowly as possible.
Troyer v. T. John E. Prods., Inc., No. 9-cv-821, 2010 WL 11534382, at *1 (W.D.
Mich. Oct. 14, 2010) [Id. at 367-68] Defendants indicate that courts have been wary
to limit the parties’ abilities to communicate with employees because it could limit
their ability to make informed decisions on whether to participate in the action. [Id.
at 367] Defendants argue that Plaintiffs’ arguments fail because they relied on cases
where a class was conditionally certified and offered little to no support on their
accusation of abusive behaviors by the Defendants. Whitfield v. Trinity Rest. Group,
LLC, Case No. 18-cv-10973 (E.D. Mich. May 30, 2019) (communication limited).
[Id. at 369-70]
Defendants claim the test for coercion is whether the conduct somehow
overpowers the free will or business judgment of potential class members. [Id.] Jenifer
v. Delaware Solid Waste Auth., No. CIV. A. 98-270 MMS, 1999 WL 117762, at *5

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(D. Del. Feb. 25, 1999) (citing Mobilificio San Giacomo S.P.A. v. Stoffi, 1998 WL
125536, at *9 (D. Del. Jan 29, 1998)). Defendants argue that they were not coercive
because they did not make any allusion that future employment would be tied to
accepting the additional $125. [Id. at 371] Tolmasoff v. Gen. Motors, LLC, No. 1611747, 2016 WL 3548219, at *12 (E.D. Mich. June 30, 2016); Carlson v. Leprino
Foods Co., No. 5-cv-00798, 2006 WL 3231266, at *1 (W.D. Mich. Nov. 7, 2006).
(“Although defendant's correspondence certainly seem to be an attempt to ingratiate
itself to its employees, the Court does not find that it rises to a level of coercion.”) Belt
v. Emcare, Inc., 299 F.Supp.2d 664, 668 (E.D. Tex. 2003) (employer’s
communication was coercive when it tied to future employment); Erhardt v.
Prudential Group, Inc., 629 F.2d 843, 845 (2nd Cir.1980) (letters to class members
warning them that they might be liable for costs should they participate in the class
action and urging them to disassociate themselves from the suit were improper);
Bourne v. Ansara Rest. Group, Inc., et al, No. 16-cv-10332 (E.D. Mich. June 29,
2016). Wright v. Adventures Rolling Cross Country, Inc., No. C-12-0982 EMC, 2012
WL 2239797, at *1 (N.D. Cal. June 15, 2012) (communication by defendants was
abusive where it stated that the named plaintiffs were unethical, solely interested in
money, and suggested that putative class members involved in the suit would “expose
themselves to the searing scrutiny and time commitment of a public trial for a few

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hundred dollars”); Hampton Hardware, Inc. v. Cotter & Co., 156 F.R.D. 630, 633
(N.D. Tex. 1994) (communication was coercive putative class members were advised
not to participate in the lawsuit). Defendants assert that prohibiting employer
communication with employees and former employees disincentivizes businesses like
Defendants’ from admitting and trying to correct their wrongs to avoid litigation. [Id.
at 373-74]
Arbitration agreements are not in themselves improper in FLSA actions. The
Sixth Circuit held that in 29 U.S.C § 216(b), FLSA does not require named Plaintiffs
and similarly situated employees to bring their claims together, but rather, an
employee has the option to sue on behalf of himself and other employees. Gaffers v.
Kelly Servs., Inc., 900 F.3d 293, 296 (6th Cir. 2018). Therefore, it gives employees
the option to bring their claims together, but does not expressly vindicate their rights
in an FLSA collective action. Id.
While arbitration agreements and pre-notice communication with putative
Collective members in generally are not expressly prohibited, Defendants’
communications are coercive in nature. Defendants’ communications specifically
address the issue of backpay and overtime addressed in the present action.
Defendants’ letter mentions that $125 in exchange for signing waiver of “potential”
class claims, while the arbitration agreement itself addresses the existence of a current

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“bona fide dispute” under the FLSA. Defendants’ arbitration agreement begins with
the following paragraph:
I ACKNOWLEDGE AND AGREE that the attached calculation of back
wages and overtime is a fair and reasonable settlement of a bona fide
dispute under the Fair Labor Standards Act and related state wage
payment law. The sum paid to me includes an amount that represents the
full value of the payment and any alleged back wages and liquidated
damages that I may claim I was owed under the Fair Labor Standards
Act.
[ECF No. 15-1, Page.ID 216]
Defendants’ notation of “potential” class claims suggests that there is not
pending litigation, whereas the arbitration agreement clearly recognizes an existing,
“bona fide” FLSA dispute. This mixed-messaging between the letter and the
arbitration agreement could certainly cause confusion for potential Collective
members and influence their understanding of the remedies available to them. An
employees decision on whether to accept the arbitration agreement may change upon
notice of the pending action with Plaintiffs, as potential Class members would have
reason to believe that the calculations are possibly not accurate. Potential Collective
members would also be able to investigate the pending litigation on their own,
allowing them to make an individual and informed decision about whether to accept
the arbitration agreement or opt-into the lawsuit. Therefore, without knowledge of this
specific case, Defendants’ communications undermine the managerial role of this

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Court in authorization of notice in the present suit and threaten the proper functioning
of this litigation.
The Court also declines to accept Defendants’ argument regarding the
appropriate test for coercion. Defendants cite a single case which deals with potential
coercion in a Rule 23 class action case. Jenifer v. Delaware Solid Waste Auth., No.
CIV. A. 98-270 MMS, 1999 WL 117762, at *5 (D. Del. Feb. 25, 1999). FLSA
collective actions differ from Rule 23 Class actions, as employees must “opt into” the
class for an FLSA action and employees “opt-out” in class actions. O'Brien v. Ed
Donnelly Enterprises, Inc., 575 F.3d at 583 (6th Cir. 2009), abrogated on other
grounds by Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016). Because the
mechanisms for participation in a Rule 23 class action lawsuit differ from those in an
FLSA collective action, the Court declines to adopt Defendants’ proposed criteria.
In regards to the First Amendment concerns raised by Defendants, the Court
finds that the Plaintiffs sufficiently support their request for a Protective Order based
on the coercive nature of Defendants’ communications but do not request relief with
a heightened sensitivity for the first amendment concerns. The Court agrees with the
Defendants that requested relief to provide a communication log for “any and all”
communications between Defendants and putative Collective members is overly broad
and declines to grant this form of relief to Plaintiffs.

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The Court finds that the combination of the letters and arbitration agreements
sent by Defendants were abusive to the proper functioning of this litigation and would
grant the first and second requested forms of relief from Plaintiffs to send remedial
communication to Collective members and to void the specific arbitration agreements
obtained by Defendants. The Court denies Plaintiffs’ request for a communication log
or sanction because those forms of relief would infringe on the Defendants’ First
Amendment rights and, in general, are overly broad for the communications at issue
in this Motion. Defendants, however, should maintain such a log, if, during the
discovery phase, Plaintiffs require such and are able to show exceptions under the
First Amendment. Plaintiffs may so request this log during discovery if relevant.
III.

CONCLUSION/ORDER
For the reasons set forth above,
IT IS ORDERED that Plaintiffs’ Motion for Protective (ECF No. 15) is

GRANTED in part and DENIED in part, as more fully set forth above.
S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: July 29, 2022

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