Perrin v. Papa John's International, Inc.

Filing 152

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants objections (Doc. No. 149) to the Proposed Form of Notice and Consent to Join are GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that the Court shall hold a conference call with coun sel on October 5, 2011, at 11 a.m. to address scheduling issues related to the Defendants production of electronic data and Plaintiffs mailing of notice. IT IS FURTHER ORDERED that Plaintiffs shall proceed with the provision of notice by electronic a nd first-class mail using the Plaintiffs Proposed Form of Notice and Consent to Join, modified as ordered herein, according to the schedule to be determined by the Court following consultation with counsel. IT IS FURTHER ORDERED that the Court approves an opt-in period of sixty days. Telephone Conference set for 10/5/2011 11:00 AM before Honorable Audrey G. Fleissig. Signed by Honorable Audrey G. Fleissig on 10/4/11. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WILLIAM TIMOTHY PERRIN,
Individually and on behalf of a class of
others similarly situated,

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)
)
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Plaintiffs,
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vs.
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PAPA JOHN’S INTERNATIONAL, INC., )
et al.
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Defendants.
)

Case No. 4:09CV01335 AGF

MEMORANDUM AND ORDER
This is an action under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.,
brought by pizza delivery drivers to collect unreimbursed automobile expenses. On
September 14, 2011, this Court conditionally certified a class of all similarly situated
present and former pizza delivery drivers employed by Papa John’s International, Inc.,
and Papa John’s USA, Inc. (“Defendants”) at any time during the three (3) years prior to
September 14, 2011 (Doc. No. 148). The Court also ordered briefing of the issues
surrounding the adequacy and content of the proposed notice and consent to join
(“Notice”), the time period for opt-in, and the appropriate location, if any, for posting of
the Notice.
For the reasons set forth herein, the Court now approves Plaintiffs’ proposed form
Notice (Doc. No. 151, Exh.1), subject to the changes, deletions, and additions set forth
below. In addition, the Court approves the delivery of the Notice by first-class and

electronic mail and will not require Defendants to post the Notice in its restaurants. The
Court also approves a sixty (60) day opt-in period to commence on a date to be set
following a conference with counsel.
I.

Mailed Notice and Workplace Posting
Plaintiffs have requested that the Court require both mailing by first class mail and

electronic mail and that the notice be posted in the employee area of Defendants’
restaurants. Defendants assert that notice by first-class and electronic mail is sufficient in
this case, and that requiring them to post notice in the workplace is unnecessarily
redundant and intrusive. In support, Defendants rely upon Martinez v. Cargill Meat
Solutions, 265 F.R.D. 490, 500-01 (D. Neb. 2009), where the court held that unless and
until Plaintiffs presented evidence that personal mailing would be an unreliable means of
delivery notice to putative plaintiffs, notice by mailing would be the only court-approved
method for disseminating notice of Plaintiffs’ collective action. See id. Defendants
assert that Plaintiffs have made no such showing, and that the Court should not require
workplace posting.
In response, Plaintiffs principally rely upon the rulings of other district courts
within the Eighth Circuit, including the Eastern District of Missouri, approving the
posting of notice in the workplace, without requiring a prior showing that mailed notice
would be insufficient. See, e.g., Simmons v. Enterprise Holdings, Inc., No.
4:10CV00625 AGF, 2011 WL 1304732, at *1 (E.D. Mo. April 6, 2011); Dernovish v.
AT&T Opers., Inc., No. 09-0015-CV-W-ODS, 2010 WL 143692, at *2 (W.D. Mo. Jan.
12, 2010); Beasley v. GC Services, No. 4:09CV01748 CDP, slip op. at 9 & Exh. 27 (E.D.
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Mo. Oct. 6, 2010); Ingraham v. Dixon Ambulance Dist., No. 10-4160-CV-S-ODS, 2010
WL 4534038, at *2 (W.D. Mo. Nov. 1, 2010); In re Pilgrim’s Pride FLSA Litig., MDL
No. 1:07CV1832, 2008 WL 2061265, at *1 (W.D. Ark. May 14, 2008); Boyle v. Barber
& Sons Co., No. 03-0574-CV-W-FJG, 2004 WL 5897946, *5 (W.D. Mo. May 21, 2004).
Upon review of the case law the Court finds little basis for imposing a
presumption favoring personal mailing. The better course is to determine what
constitutes fair and proper notice based on the facts of each case. See Mowdy v. Beneto
Bulk Transport, No. C 06-05682, 2008 WL 901546, at *9 (N.D. Cal. Mar. 31, 2008).
The Court concludes that, in this instance, the posting of notice in the workplace adds
little to the efficacy of mailed notice and may be redundant, confusing to other workers,
and unduly burdensome for Defendants.
“At this stage of the litigation, justice is most readily served by notice reaching the
largest number of potential plaintiffs.” Kautsch v. Premier Communs., 504 F. Supp.2d
685, 690 (W.D. Mo. 2007) (citation omitted). Mailed notice has traditionally been
considered the best vehicle to achieve this objective. Hinterberger v. Catholic Health
Sys., No. 08CV380S, 2009 WL 3464134, at *13 (W.D.N.Y. Oct. 21, 2009). Here,
Plaintiffs assert that posting of notice is also necessary because the putative class extends
to former employees whose contact information may have changed after leaving
Defendants’ employ. However, the value of posting to remedy this problem is
questionable. Plaintiffs argue that current employees who see the posted notice may be in
a position to notify former employees. Many, but not all, current employees will,
however, receive actual notice by mail. This notice should provide them with an
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opportunity to alert former employees who may not have received such notice due to a
change of address, and posting is therefore somewhat redundant.
In addition, given the size of the certified class and the necessity of posting notice
in all of Defendants’ restaurants nationwide, the Court finds that the minimal value of
posted notice does not outweigh the burden to Defendants and the potential to create
confusion among other employees. See Phelps v. MC Communications, Inc., No.
2:11CV00423 PMP-LRL, 2011 WL 3298414, at *6 (D. Nev. Aug. 1, 2011) (denying
plaintiffs’ request for posting of the notice in the workplace stating “defendants should
have proper addresses for their current employees, and posting the notice in the
workplace would not provide notice to former employees for whom defendants may not
have current information."); Wass v. NPC International, Inc.,No. 092254JWL, 2011
WL1118774, at *12 (D. Kan. Mar. 28, 2011) (“The Court is not persuaded that the likely
benefits from a posting requirement outweigh the likely burden from having to post the
notice in so many stores.”).
Although other courts in this Circuit, including this Court, have approved the
posting of notice in addition to mailed notice in FLSA class action cases, the burden on
defendants in those cases was considerably lighter because posting would have been
required in only a few locations. See, e.g., Simmons, 2011 WL 1304732, at *2 (holding
that posting would be required only in a single location); Fast v. Applebee’s Int’l, Inc.,
243 F.R.D. 360, 364 (W.D. Mo. 2007) (finding a requirement that defendant post notice
in six locations too burdensome)

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II.

Length of Opt-In Period
Defendants object to Plaintiffs’ proposed 90-day opt-in period and contend that 60

days is sufficient time to allow putative plaintiffs to choose whether to opt into the case.
There is a range of authority regarding the appropriate length for the opt-in period. See,
e.g., Greenwald v. Phillips Home Furnishings, Inc., 2009 WL 1025545 (E.D. Mo. April
15, 2009) (allowing 45 days to opt-in); Martinez, 265 F.R.D. at 501 (“holding forty-five
days is sufficient time for putative plaintiffs to consider their options and, if desired, seek
the assistance of outside counsel in deciding whether to join this lawsuit”); DeKeyser v.
Thyssenkrup Waupaca, Inc., No.08-C-488, 2008 WL 5263750, at *6 (E.D. Wis. Dec. 18,
2008) (allowing 45 days); Williams v. Long, 585 F.Supp.2d 679 (D. Md. 2008) (allowing
30 days); Bados Madrid v. Peak Construction, Inc., No.2:09CV00311JWS, 2009 WL
2983193, at *3 (D. Ariz. Sept. 17, 2009) (allowing 45 days); Boyle v. Barber & Sons,
Co., No.030574CVWFJG, 2004 WL 5897946, at *5 (W.D. Mo. May 21, 2004) (allowing
30 days).
Given the size of the potential class in this action, the Court concludes that a 60
day period will fully and fairly allow for the provision of notice to potential plaintiffs.
III.

Defendants’ Objections to the Form and Content of the Notice
Defendants raise numerous specific objections to Plaintiffs’ proposed Notice. As

a general matter, the Court notes that the purpose of the notice forms is to inform
potential class members about the existence of the suit and allow them to evaluate
whether or not they wish to join it. Littlefield v. Dealer Warranty Servs., LLC, 679 F.
Supp.2d at 1014, 1018 (E.D. Mo. 2010) (citations omitted). “[D]istrict courts have
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discretion, in appropriate cases, to implement 29 U.S.C.§ 216(b) . . . by facilitating notice
to potential plaintiffs.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989).
In addition, “. . . trial court involvement in the notice process is inevitable in cases with
numerous plaintiffs where written consent is required by statute. . . .” Id. at 171.
However, a court should not alter a plaintiff’s proposed notice “unless certain changes are
necessary.” Littlefield, 679 F. Supp.2d at 1018 (E.D. Mo. 2010).
A. The “Disclaimer”
Defendants object to a “disclaimer” in the Notice advising recipients that the Court
has made no determination as to the merits of Plaintiffs’ claims. Here the Court
concludes that the proposed disclaimer is not sufficient. The Court will require Plaintiffs
to replace the language they have proposed in ¶ 7 of the Notice with the following
language required by the court in Huang v. Gateway Hotel Holdings: “This notice is for
the sole purpose of determining the identity of those persons who wish to be involved in
the lawsuit. The United States District Court for the Eastern District of Missouri
expresses no opinion regarding the merits of the Plaintiffs’ claims or the defenses of Papa
John’s. There is no assurance at this time that any relief will be granted, nor if granted,
the nature and amount of relief.” Huang v. Gateway Hotel Holdings, 248 F.R.D. 225,
229 (E.D. Mo. 2008).

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B. Improper Solicitation
Defendants assert that the “footer”1 on each page of the Notice amounts to
improper solicitation. This objection is without merit. Language directing potential class
members that they may contact plaintiffs’ counsel to obtain further information about the
case is standard. Bowens v. Atlantic Maint. Corp., 546 F.Supp.2d 55, 84 (E.D.N.Y.
2008) (citations omitted). The Court also disagrees with Defendants’ contention that
providing information in the Notice about Plaintiff’s counsel contravenes the general rule
that plaintiff’s counsel may not actively solicit potential class members once the
conditional class has been certified. Providing potential plaintiffs with a phone number
or website which they may or may not choose to contact to obtain information does not
amount to active solicitation or initiation of contact by Plaintiffs’ counsel. Id.
Defendants also argue that contact information for Defendants’ counsel should be
made available in the notice. This contention is without merit. Numerous courts have
held that identifying defense counsel in the class action notice “has no basis in law or
logic” and is “unnecessary and inappropriate.” See, e.g., Kelly v. Bluegreen Corp., 256
F.R.D. 626, 632 (W.D. Wis. 2009); Morden v. T-Mobile USA, Inc., No.C05-2112 RSM,
2006 WL 2620320, at *4 (W.D. Wash. Sep. 12, 2006) (quotations omitted). The Court
agrees with this case law.

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The “footer” reads: “More questions? Contact Jack McInnes at Stueve Siegel
Hanson LLP….or Mark Potashnick at Weinhaus &Potashnick” and includes the
telephone number and website address for both attorneys. (Doc. No. 151-1).
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C. Notification Regarding Travel and Participation in Discovery
Defendants further object to the Notice on the grounds that it fails to inform
potential plaintiffs that they may be required to travel to the Eastern District of Missouri
to testify in depositions or in court. Such notification is not necessary and only serves to
discourage potential class members. Littlefield, 679 F. Supp. 2d at 1019; Martinez, 2009
WL 5034479, at *9. Courts have held, and this Court agrees, that such notification is
especially inappropriate in FLSA cases, where discovery is limited and Plaintiffs are not
likely to be called upon to provide deposition testimony. See Hembree v. Mid Continent
Transport, Inc., No.086094CVSJ HFS, 2010 WL 3927764, at *5 (W.D. Mo. Oct. 4,
2010).
D. Responsibility for Costs
Defendants object that the proposed Notice fails to disclose that Plaintiffs may be
responsible for Defendants’ costs if Defendants prevail in the lawsuit. In order to provide
accurate notice courts have held that this fact should be included in the notice. See
McKinzie v. Westlake Hardware, Inc., No. 09- 796WFJG, 2010 WL 2426310, at *4 (W.D.
Mo. June 11, 2010) (holding that the notice “must disclose that a plaintiff may be
responsible for defendant’s costs if defendant prevails”); Creten-Miller v. Westlake
Hardware, Inc., No. 082351 KHV, 2009 WL 2058734, at *4 (D. Kan. Jul. 15, 2009)
(holding that because “an award of costs to a prevailing defendant in an FLSA case is
clearly possible and is not merely theoretical . . . the notice should inform recipients about
the possibility that they may be responsible for court costs.”). The Court agrees that this
disclosure should be included, and will therefore require Plaintiffs to add the following
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language at the end of ¶ 11 of the Notice: “If you do not prevail on your claim, court costs
and expenses may possibly be assessed against you.”
E. Choice of Counsel
Defendants next contend that the Notice fails to inform putative plaintiffs that they
may select counsel of their choice and need not retain Plaintiffs’ counsel to represent them.
Specifically, Defendants object to the language in ¶¶ 15 and 162 of the Notice. Plaintiffs
have offered to substitute the word “retain” for “pay” in ¶ 16 as required by the court in
Wass, 2011 WL1118774, at *9. Defendants accept this change as a remedy for their
concern, therefore, the Court approves Plaintiffs’ substitution of the word “retain” for the
word “pay” in ¶ 16 of the proposed Notice.
F. The “Consent to Join”
Defendants next object that the “Consent to Join” portion of the Notice improperly
designates Plaintiffs’ counsel as counsel of record and provides that Plaintiffs’ counsel will
file the Consent to Join on behalf of Plaintiffs. In Sloan v. Renzenberger, Inc., the court
rejected a similar objection noting the potential for undue administrative burden on the
Court Clerk’s office. Sloan v. Renzenberger, Inc., No. 10-2508-CM-J, 2011 WL1457368,
at *4 (D. Kan. April 15, 2011). This Court agrees that the designation of Plaintiffs’

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As proposed, ¶ 15 reads: “Do I have a lawyer in this case? If you choose to
join this lawsuit you will be represented by the law firms of Stueve Siegel Hanson LLP
and Weinhaus &Potashnick and any other lawyers they choose to associate with in the
prosecution of this lawsuit.” As proposed, ¶ 16 reads: “Should I get my own lawyer? If
you choose to opt-in to the lawsuit by promptly returning a signed Consent to Join form,
you do not need to hire your own lawyer because Plaintiffs’ counsel will be working on
your behalf. But if you want your own lawyer, you may have to pay that lawyer and will
have to file your own separate lawsuit.”
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counsel as counsel of record is not improper and will serve to avoid potential
administrative difficulties posed by the filing of consents directly with the Court.
G. Use of the Court’s Heading on the Notice
Defendants object to use of the Court’s heading at the top of the first page of the
Notice, contending that its use creates the impression that the Notice is a letter from the
Court, or otherwise indicates judicial approval of the Plaintiffs’ allegations. This Court and
others have routinely approved the use of the Court’s heading on the notice form. Simmons
v. Enterprise Holdings, Inc., No. 4:10CV00625 AGF, slip op. at 9 (E.D. Mo. Mar. 9,
2011); Beasley, slip op. at 9 & Exh. 27.
H. Use of Legal Jargon
Defendants also object to Plaintiffs’ use of terms, like “Plaintiff” or “Named
Plaintiff,” throughout the proposed Notice. Defendants characterize these terms as
potentially confusing legal jargon. The Court cannot agree that the terms “Plaintiff,” or
even “Named Plaintiff” will result in confusion. These terms are generally understood.
Moreover, the language in ¶¶ 12 and 14 of the Notice is not redundant, but rather assists in
clarifying some of the very issues that Defendants contend are unclear. As the Court is not
to alter the notice unless clearly necessary, it will not sustain Defendants’ objections to the
use of these terms. Littlefield, 679 F. Supp.2d at 1018.
I. References to Statute of Limitations
Defendants propose to eliminate language in ¶ 12 regarding the statute of limitations
language. The Court will not sustain this objection because removing such language
defeats one of the main purposes of providing notice to potential plaintiffs. In an FLSA
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action the statute of limitations continues to run for each potential plaintiff until he or she
opts into the class. Therefore, information regarding the running of the statue of limitations
is necessary, indeed crucial, to preserve the rights of potential class members. 29 U.S.C. §
256(b); Littlefield, 679 F. Supp. 2d at 1019.
J. The Cover Envelope
Defendants further object to the inclusion of an addressed, postage prepaid
envelope with the Notice and to the placement of the following phrase on the outside of the
envelope: “Notice of Unpaid Overtime Lawsuit- Deadline to Join.” Defendants assert that
these elements give a false sense of urgency and interfere with a potential plaintiff’s right
to choose alternate counsel. The Court does not agree. A similar inscription has been
approved in other cases. See, e.g., Putnam v. Galaxy 1 Marketing, Inc., No. 3:10 CV
00072JAJ, 2011 WL 4072388, at *14 (S.D. Iowa Aug. 23, 2011). And the language fairly
alerts the recipients that the envelope contains time-sensitive material, and is not junk mail.
However, the use of a prepaid envelope has been rejected as bordering on improper
solicitation. See Fortna v. QC Holdings, Inc., No.06CV0016CVE PJC, 2006 WL
2385303, at *2 (D. Okla. Aug. 17, 2006). Therefore, the Court will not approve the
Plaintiffs’ use of a prepaid envelope.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ objections (Doc. No. 149) to the
Proposed Form of Notice and Consent to Join are GRANTED in part and DENIED in
part.

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IT IS FURTHER ORDERED that the Court shall hold a conference call with
counsel on October 5, 2011, at 11 a.m. to address scheduling issues related to the
Defendants’ production of electronic data and Plaintiffs’ mailing of notice.
IT IS FURTHER ORDERED that Plaintiffs shall proceed with the provision of
notice by electronic and first-class mail using the Plaintiffs’ Proposed Form of Notice and
Consent to Join, modified as ordered herein, according to the schedule to be determined by
the Court following consultation with counsel.
IT IS FURTHER ORDERED that the Court approves an opt-in period of sixty
days.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

Dated this 4th day of October, 2011.

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