White et al v. 14051 Manchester, Inc. et al
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiffs' Combined Motion to Conditionally Certify Class, Order Disclosure of Putative Class Members' Names and Contact Information, and to Facilitate Class Notice, and Memorandum in Suppor t 44 is GRANTED, in part, and the Court conditionally certifies a class of all current and former hourly-paid employees of Hotshots who shared in any tip pool for the period of three (3) years from the date of mailing notice. IT IS FURTHER ORDERED that Plaintiffs Thelma White and Nicole Carroll conditionally are authorized to act as class representatives. IT IS FURTHER ORDERED that Riggan Law Firm, LLC and Dashtaki Law Firm, LLC are authorized to act as class counsel. IT IS FURTHER ORDERED tha t the notice attached as Exhibit 44-4 to the Plaintiffs' Motion shall serve as notice in this case. IT IS FURTHER ORDERED that Defendants shall provide Plaintiffs' attorneys with thenames and current or last known mailing and email address es of all employees who may be potential plaintiffs in this suit on or before December 17, 2012. IT IS FURTHER ORDERED that Plaintiffs shall mail and email the notice and Defendants shall post the notice in the breakrooms no later than January 17, 2 013. That notice shall remain in the breakrooms for ninety (90) days. IT IS FURTHER ORDERED that Plaintiffs' Motion to Compel is DENIED, in part, and GRANTED, in part, as outlined above. Defendants shall supplement their discovery responses by December 17, 2012. Signed by District Judge John A. Ross on 11/30/12. (LAH)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
THELMA WHITE, et al.,
14051 MANCHESTER, INC. d/b/a
HOTSHOTS SPORTS BAR & GRILL, et al.,
Case No. 4:12CV469 JAR
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Combined Motion to Conditionally Certify
Class, Order Disclosure of Putative Class Members’ Names and Contact Information, and to
Facilitate Class Notice, and Memorandum in Support (“Motion”) (ECF No. 44) and Plaintiffs’
Motion to Compel (ECF No. 58). These motions are fully briefed and ready for disposition.
Plaintiffs Thelma White and Nicole Carroll (“Plaintiffs”) were employed by Hotshots as
servers and/or bartenders at multiple Hotshots locations in the St. Louis area. As tipped employees,
Plaintiffs were paid an hourly rate under minimum wage, as well as a portion of the tips paid to them
Plaintiffs allege that they were required to participate in a “tip pool,” whereby tipped
employees shared tips with other “back of the house” or non-tipped employees. Specifically,
servers and bartenders were required to pay the doorman at least $5.00 per shift and to pay a portion
of their tips to cooks and dishwashers. Plaintiffs assert that this tip-pooling policy was in effect and
applied uniformly throughout all of the Hotshots locations.
Plaintiffs filed a Complaint on March 14, 2012, alleging claims for Violation of the Fair
Labor Standards Act of 1938 (Count I) and Violations of the Missouri Minimum Wage Law,
§290.500, et seq. (Count II).
Motion for Conditional Class Certification
On June 15, 2012, Plaintiffs filed the instant Motion for Conditional Class Certification.
Plaintiffs identify the putative class as Hotshots employees who have worked as tipped employees
or participated in a tip pool at any of the Hotshots locations at any time during the last three years.
(ECF No. 44-4). Defendants oppose certifying the instant case as a conditional collective action
because they assert that they do not control the Hotshots franchise locations. Defendants also claim
that the proposed notice to putative class members does not comply with the FLSA and collective
Section 7 of the FLSA mandates that an employer may not subject non-exempt employees
to a work week in excess of forty hours, unless the employee is compensated for his or her overtime
with additional pay of at least one and one-half times his or her regular hourly wage. 29 U.S.C. §
207. A collective action under the FLSA to recover overtime compensation and liquidated damages
may be maintained, “by any one or more employees for and in behalf of himself or themselves and
other employees similarly situated.” 29 U.S.C. § 216(b). Unlike a Rule 23 class action, a collective
action under the FLSA is pursued on an opt-in basis, requiring employees to provide their consent
in writing to join the action. 29 U.S.C. § 216(b); Ford v. Townsends of Arkansas, Inc., No.
4:08cv509, 2010 U.S. Dist. Lexis 46093, at *8 (E.D. Ark. Apr. 9, 2010).
District courts within the Eighth Circuit conduct a two-step analysis to determine whether
employees are “similarly situated.” Beasley v. GC Services LP, 270 F.R.D. 442, 444 (E.D. Mo.
2010); Littlefield v. Dealer Warranty Services, LLC, 679 F.Supp.2d 1014, 1016 (E.D. Mo. 2010);
Ford, 2010 U.S. Dist. Lexis 46093, at *8. “Under this two-step process, the plaintiff first moves for
class certification for notice purposes.” Dernovish v. AT&T Operations, Inc., No. 09-0015, 2010
U.S. Dist. LEXIS 2127, at *3 (W.D. Mo. Jan. 12, 2010)(internal quotations and citation omitted).
“The plaintiff’s motion for certification is typically filed at an early stage of the litigation thus
requiring a lenient evaluation standard and typically resulting in conditional certification of a
representative class.” Kautsch v. Premier Communications, 504 F.Supp.2d 685, 688 (W.D. Mo.
2007) (citations omitted). The Court does not reach the merits of the plaintiff’s claims at this early
stage of litigation. Id. If the Court conditionally certifies the class, the potential class members are
given notice and the opportunity to opt-in. Dernovish, 2010 U.S. Dist. LEXIS 2127, at *3.
The second step of the process occurs when the defendant moves to decertify the class.
Ford, 2010 U.S. Dist. Lexis 46093, at *9; Beasley, 270 F.R.D. at 444; Dernovish, 2010 U.S. Dist.
LEXIS 2127, at *3. This typically is done after the close of discovery, when the Court has much
more information and is able to make a more informed decision. Id. “At that time, applying a
stricter standard, the court makes a factual determination on the similarly situated question.” Garner
v. Regis Corp., No. 03-5037, 2004 U.S. Dist. LEXIS 29167, at *6 (W.D. Mo. Aug. 5, 2004)(citation
omitted). “Courts will consider three factors at the second stage: (1) the employment and factual
settings of the plaintiffs; (2) the various defenses available to the defendants; and (3) considerations
of fairness, procedure, and manageability.” Ford, 2010 U.S. Dist. LEXIS, at *9 (internal quotation
omitted). “If the claims are not similarly situated, the Court decertifies that class and the opt-in
plaintiffs are dismissed without prejudice.” Garner, 2004 U.S. Dist. LEXIS 29167, at *6 (citation
For the first step of the process, the FLSA does not define the term “similarly situated.”
Kautsch, 504 F.Supp.2d at 689; Garner, 2004 U.S. Dist. LEXIS 29167, at *5. Courts agree that a
plaintiff’s burden at the first stage of the process is not onerous, however, and “plaintiffs can meet
this burden by making a modest factual showing sufficient to demonstrate that they and potential
plaintiffs together were victims of a common policy or plan that violated the law.” Kautsch, 504
F.Supp.2d at 689 (citations omitted); see also Ford, 2010 U.S. Dist. Lexis 46093, at *8 (“A class is
similarly situated at this stage if plaintiffs make a modest factual showing, based upon the pleadings
and affidavits, that the proposed class members were victims of a single decision, policy, or plan.”);
Dernovish, 2010 U.S. Dist. LEXIS 2127, *3-4 (“There is no need to show that the would-be
members of the class are actually similarly situated or that they are identical, but the plaintiff must
present some evidence to demonstrate the class members are similar in important respects and are
subjected to similar policies or circumstances.”). A plaintiff may meet this burden by “detailed
allegations supported by affidavits.” Kautsch, 504 F.Supp.2d at 689 (citation omitted).
Upon consideration and as discussed herein, the Court finds that, given the lenient notice
standard, Plaintiffs have met their burden to show conditional certification is proper. Kautsch, 504
F.Supp.2d at 690. Hotshots’ purported policy requiring tipped employees to share their tips with
untipped “back of the house” employees violates the FLSA. Plaintiffs specifically allege that they,
and other similarly situated employees, were denied compensation as a result of this policy. Cf.
Wacker v. Pers. Touch Home Care, Inc., No. 4:08CV93, 2008 U.S. Dist. LEXIS 101079, at *10
(E.D. Mo. Nov. 6, 2008)(denying certification where the plaintiff failed to testify that he was denied
compensation). Finally, while Hotshots maintains that Plaintiffs are not similarly situated to
employees of other locations and/or franchise locations, the Court finds these assertions go to the
merits of the case, and are not grounds for denying conditional certification of the class. Kautsch,
504 F. Supp. 2d at 690, n.2.
As an initial matter, Defendants argue that conditional class certification is improper because
the putative class members were not employees of a common employer. (Response, pp. 3-5).
Defendants contend that Plaintiffs cannot meet the burden for conditional class certification because
the putative class includes employees of three independently owned and operated franchise Hotshots
locations that are not controlled by the Defendants named in this lawsuit. (Id., p. 3). Defendants
assert that they cannot produce the names and contact information for employees at the franchise
locations--Cape Girardeau, Arnold and Florissant, Missouri--that they do not control. (Id., pp. 3-4).1
Defendants acknowledge that “[o]ne or more employees of a Defendant Hotshots location assists
with opening franchise Hotshots locations, but Defendants’ employees are otherwise uninvolved in
the day-to-day operations of the franchise Hotshots locations.” (Id., p. 4). Defendants assert that
they do not train the franchise locations about tip pooling, and the “trainers” are not paid by the
franchise location. (Id., p. 4). Defendants also contend that tipped employees from Defendant
Hotshots locations are not “floated” between Defendant Hotshots locations and franchise locations.
(Id., pp. 4-5). In addition, Defendants note that two of the franchise locations, Arnold and Cape
Girardeau, opened after both Plaintiffs’ employment ended. Accordingly, Defendants assert that the
franchise employees are not similarly situated to the Defendant Hotshots’ employees.
Finally, Defendants contend that the definition of the class should include only those
Hotshots employees who have worked as tipped employees at any of those Hotshots locations at any
time during the last three years. (Response, p. 6).2 Defendants state that Plaintiffs’ proposed class
of all persons who shared in any tip pool and all those employees for whom Hotshots claimed a tip
credit under the FLSA is improper. Defendants assert that Plaintiffs’ definition overly expands the
In fact, Plaintiffs allege in their Second Amended Compliant that the Cape Girardeau
location is owned and operated by Breakaway Bar & Billiards, Inc. (“Breakaway”). (Response, p.
6). Breakaway, however, has not been served with the Complaint and no one has entered on its
The Court notes that, in a separate section, Defendants assert that this time period should
be two, not three, years.
class and includes employees, such as back of the house employees, who are not “similarly situated”
In response, Plaintiffs dispute that Defendants have no control over who works at the
franchise locations. (Reply, p. 3). Plaintiffs cite to their declarations, wherein they state that they
knew of managers that worked at several locations, including the Cape Girardeau location. (ECF
Nos. 44-2, ¶9; 44-3, ¶12). Likewise, Julie Volmert attested that one or more employees of Hotshots
assist with opening the franchise locations. (Reply, p. 3). Plaintiffs claim that evidence that
Defendants sent managers to open the franchise locations demonstrates their control over such
locations and belies Defendants’ claim that they have no relationship with the franchise locations.
Plaintiffs also assert that employees of the Arnold and Florissant, Missouri locations are
similarly situated even though those locations did not open until after Plaintiffs’ employment was
terminated. (Reply, p. 3). Plaintiffs contend that whether or not the employment of the named
plaintiffs and other putative class members overlaps is not determinative of whether those employees
were all victims of a single decision, policy or plan. (Reply, pp. 3-4 (citing cases)).
In addition, Plaintiffs contend that the scope of the putative class should be all employees
who shared in any tip pool, including back of the house employees. (Reply, p. 4). Plaintiffs claim
that cooks, dishwashers, and other non-server/bartender employees at Hotshots who were required
to participate in the unlawful tip pool and for whom Hotshots claimed a tip credit against the
minimum wage are all victims of the same policy or plan. (Id.). That is, the back of the house
employees, like the servers and bartenders, were part of an involuntary and invalid tip pool, and,
therefore, were underpaid in violation of the FLSA. (Id.).
The Supreme Court has noted that whether a relationship is covered by the FLSA turns on
the economic realities of the working relationship rather than technical definitions relating to
employment. Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33, 81 S. Ct. 933, 6 L. Ed. 2d
100 (1961). The FLSA defines “employee” broadly to include “any individual employed by an
employer.” 29 U.S.C. §203(e)(1)(2006). In turn, “employ” is defined as “to suffer or permit to
work” 29 U.S.C. §203(g), and an “employer” is any person “acting directly or indirectly in the
interest of an employer in relation to an employee.” 29 U.S.C. §203(d). “Thus, based on the
language of the statute, an employee is any individual who is permitted to work by one acting
directly or indirectly in the interest of an employer.” Helmert v. Butterball, LLC, No. 4:08CV00342,
2010 U.S. Dist. LEXIS 28964, at *6 (E.D. Ark. Mar. 5, 2010); see also Nicholson v. UTi
Worldwide, Inc., No. 3:09-cv-722, 2011 U.S. Dist. LEXIS 41886, at *3 (S.D. Ill. Apr. 18,
2011)(conditionally certifying class of “forklift operators employed” by defendant that included
workers hired through temporary staffing agencies).
The Court finds that, for purposes of this Motion, Defendants “permitted or suffered to work”
all Hotshots employees, even those at the franchise locations. Given the FLSA’s broad definition
of the “employee” and its remedial purpose, Defendants’ franchise arrangement demonstrates
sufficient “control” for conditional class certification. Moreover, the employment relationship for
franchise employees is disputed by the Plaintiffs, and the Court cannot make credibility
determinations at this juncture. See Arnold v. DirecTv, Inc., No. 4:10-CV-352-JAR, 2012 U.S. Dist.
LEXIS 140777, at *8 (E.D. Mo. Sept. 28, 2012)(“The Court will not make any credibility
determinations or findings of fact with respect to contradictory evidence presented by the parties at
this initial stage.”).
The Court also finds that the proper class definition is all Hotshots employees who shared
in any tip pool. Employees who participated in the tip pool were allegedly victims of the same
policy or plan and denied compensation as a result of the tip-pooling arrangement. While the Court
acknowledges that distinctions exist among the Hotshot’s teams and locations, Plaintiffs’ affidavits
provide enough evidence at this stage to demonstrate employees were similarly situated and subject
to a common practice. McCauley, 2010 U.S. Dist. LEXIS 91375, at *12-13 (citing Busler v.
Enersys Energy Products, Inc., No. 09-00159, 2009 U.S. Dist. LEXIS 84500, at *9-10, 2009 WL
2998970 at *3 (W.D. Mo. Sep. 16, 2009)); see also Fast v. Applebee’s Intern., Inc., 243 F.R.D. 360,
363-64 (W.D. Mo. 2007) (citations omitted) (“To be similarly situated, however, class members
need not be identically situated. The ‘similarly situated’ threshold requires only a modest factual
showing.”); Schleipfer v. Mitek Corp., No. 1:06CV109, 2007 U.S. Dist. LEXIS 64042, at *9 (E.D.
Mo. Aug. 29, 2007)(class members need not be identically situated). “[A]rguments concerning the
individualized inquiries required and the merits of Plaintiffs’ claims are inappropriate at this stage
of the proceeding and can be raised before the Court at the second, or decertification, stage.”
Dominquez v. Minn. Beef Indus., No. 06-1002, 2007 U.S. Dist. LEXIS 61298, at *10 (D. Minn.
Aug. 21, 2007)(internal quotation omitted).
“The FLSA requires that notice to potential plaintiffs be ‘accurate and timely,’ so that
potential plaintiffs ‘can make informed decisions about whether to participate.’” Martinez v. Cargill
Meat Solutions, 265 F.R.D. 490, 499 (D. Neb. 2009). “District courts have the authority to manage
the cases before them, and as part of that authority, the court supervises the notification process for
‘opt-in’ collective actions.” Id. (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170, 110
S. Ct. 482, 107 L. Ed. 2d 480 (1989)). “At the same time, the court must be cautious to avoid
endorsing, or appearing to endorse, the merits of the underlying claim.” Littlefield, 679 F. Supp.
2d at 1018 (citation omitted). “Finally, the court should not alter plaintiff's proposed notice, unless
certain changes are necessary.”
Id. (citing Creten-Miller v. Westlake Hardware, Inc., No.
08-2351-KHV, 2009 U.S. Dist. LEXIS 60393, at *5 (D. Kan. July 15, 2009)).
Defendants suggest several changes to the proposed notice and notice procedure. Plaintiffs
oppose any changes because such changes are not “necessary.” (Reply, p. 5). See King v. ITT
Continental Baking Co., No. 84 C 3410, 1986 U.S. Dist. LEXIS 29321, at *7 (N.D. Ill. Feb. 13,
1986)(“although the Court has both the power and the duty to ensure that the notice is fair and
accurate, that power should not be used to alter plaintiffs’ proposed notice unless such alteration is
Defendants maintain that Plaintiffs’ proposed notice improperly solicits members, instead
of simply notifying them of the litigation. Defendants contend that the notice improperly mentions
the Plaintiffs’ counsel several times and identifies counsel as the point of contact for any questions
about the litigation. (Response, pp. 8-9). Defendants contend that Plaintiffs’ solicitations and
“unfettered access” to putative plaintiffs could be avoided by appointing a third-party administrator,
at Plaintiffs’ expense, to handle the notice.3
Plaintiffs argue that use of a third-party administrator is improper and inconsistent with the
case law of this Court. Plaintiffs note that Defendants cite to no law to support appointing a thirdparty administrator to handle the notice procedure. (Reply, p. 5). Plaintiffs maintain that “the notice
represents not an official communication from the Court, but is instead a communication from the
plaintiff and plaintiffs’ counsel to other prospective class members.” Reply, pp. 5-6 (citing King,
1986 U.S. Dist. LEXIS 29321, at *6-7). Plaintiffs note that this Court rejected the use of a neutral
In a footnote, Defendants also object to the use of pre-paid return envelopes that contain the
name and contact information of Plaintiffs’ counsel. Defendants contend that such envelopes
amount to solicitation and should not be permitted. (Response, p. 9)(citing Fortna v. QC Holdings,
Inc., No. 06-CV-0016-CVE-PJC, 2006 WL 2385303, at *2 (N.D. Okla. Aug. 17, 2006)). The Forna
court, however, did not make a ruling that postage pre-paid envelopes were improper. Rather,
plaintiff’s counsel did not respond to defendant’s objection and the Court “authorize[d] plaintiff to
mail a return envelope, without paid postage, with his consent forms to all potential class members.”
Because the Court does not consider them to be solicitation, Plaintiffs may provide postage pre-paid
administrator to issue the notice. Reply, p. 6; Littlefield, 679 F. Supp. 2d at 1018 (citing Ruggles
v. Wellpoint, Inc., 591 F. Supp. 2d 150, 163 (N.D.N.Y. 2008)).
The Court finds that the proposed notice does not constitute improper solicitation of potential
class plaintiffs. Because Defendants have not demonstrated a need to deviate from the approved and
customary method, Plaintiffs’ counsel can provide notice to the putative class members.
Defendants assert that Plaintiffs should bear the cost of notifying the putative plaintiff class
members. Defendants contend that Plaintiffs have not made any showing that Defendants would
be able to notify the putative plaintiff class with less difficulty or expense than Plaintiffs. Therefore,
Plaintiffs should pay the expense of notice. (Response, pp. 7-8). Plaintiffs agree that they should
bear the cost of administrating the notice, unless such cost includes the use of a third-party
administrator. (Reply, p. 7). Because the Court has declined to require the use of a neutral
administrator, Plaintiffs shall pay the cost of notifying potential class members.
Employees’ Contact Information
Plaintiffs ask the Court to order Defendants to provide “the putative class members’ names,
addresses, phone numbers, e-mail addresses, dates of employment, and location(s) of employment
in a readable electronic format of the class to facilitate notice to potential plaintiffs of this pending
Defendants contend that Plaintiffs and their counsel should not be permitted to have this
information prior to the termination of the of the opt-in period because of the prohibition against
contacting putative plaintiffs. (Response, p. 10). Defendants again assert that a neutral third party
administrator should handle providing notice to potential class members.
“To insure that potential plaintiffs receive ‘accurate and timely’ notice, courts frequently
order the defendant to disclose the names of potential plaintiffs to plaintiffs’ attorneys.” Littlefield,
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679 F. Supp. 2d at 1018 (citing Martinez, 265 F.R.D. at 499; Fast, 243 F.R.D. at 364; Gjurovich v.
Emmanuel’s Marketplace, Inc., 282 F. Supp. 2d 101, 108 (S.D.N.Y. 2003)). Defendants shall
provide a list of all putative class members’ names, addresses, e-mail addresses, and dates of
employment and locations in a readable electronic format. The Court, however, will not order
Defendants to provide potential plaintiffs’ telephone numbers because such information is not
necessary to provide notice of the litigation. See Littlefield, 679 F. Supp. 2d at 1018-19 (denying
request to provide employees’ personal telephone numbers or social security numbers); Martinez,
265 F.R.D. at 501 (denying plaintiffs’ request for personal phone numbers and social security
numbers); Houston v. URS Corp., 591 F. Supp. 2d 827, 836 (E.D. Va. 2008) (denying plaintiffs’
request for personal phone numbers).
Three Year Period
In the Second Amended Complaint, Plaintiffs seek to include in the putative class all
similarly situated persons employed by Defendants within the last three years. (Second Amended
Complaint, ECF No. 43, ¶36). Under the FLSA, a cause of action “may be commenced within two
years after the cause of action accrued, and every such action shall be forever barred unless
commenced within two years after the cause of action accrued, except that a cause of action arising
out of a willful violation may be commenced within three years after the cause of action accrued.”
29 U.S.C. §255(a).
Defendants argue that Plaintiffs have made no showing of willfulness, which is required to
commence a cause of action with a three year statute of limitations. (Response, p. 11). Defendants
contend that Plaintiffs have not alleged that Defendants recklessly disregarded whether tip pooling
was prohibited was the FLSA. (Id.). Likewise, Defendants assert that “Plaintiffs made no allegation
that there was ever a complaint, to any regulatory authority or to any Hotshots supervisor, about the
alleged tip pooling practice.” (Id.).
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Plaintiffs allege that Defendants violated the FLSA “knowingly, willfully, and with reckless
disregard of applicable law.” (Second Amended Complaint, ¶54). Moreover, Plaintiffs White and
Carroll both attested that they have worked in the restaurant business for over a decade, but have
never been required to share tips with back of the house employees previously. (ECF Nos. 44-2,
¶18; 44-3, ¶19). Plaintiffs assert this is evidence that Defendants “either knew or showed reckless
disregard that its [sic] tip pooling policy was prohibited by the FLSA.” (Reply, p. 9).
“Whether a violation is willful is an issue of fact, often addressed during summary judgment
or at trial.” Littlefield, 679 F. Supp. 2d at 1019 (citing Houston, 591 F. Supp. 2d at 835). “In
addition, judicial economy is served by conditionally certifying a larger, more inclusive class, at this
stage in the proceedings.” Id. Accordingly, the Court will conditionally certify a class with a
three-year period statute of limitations.
Potential Costs to Putative Plaintiffs
Defendants maintain that putative plaintiffs should be informed of the potential costs that
joining the litigation may bring. First, Defendants claim that the notice is not specific enough about
counsel’s fee arrangement because it merely states that counsel has taken the case “on a contingency
basis” and may be entitled to attorneys’ fees. (Response, p. 12). Defendants contend that the notice
should detail the percentage of recovery that counsel seeks, along with any costs or fees that may
be deducted from Plaintiffs’ recovery. (Id., p. 13). Defendants also contend that potential plaintiffs
should be informed that they could be liable for litigation costs and potential counterclaims. (Id.).
Likewise, the notice should tell potential plaintiffs that they may have to travel to participate in
discovery and/or the trial. (Id., p. 14).
The Court previously indicated that it would not include language regarding potential costs
and expenses that may be assessed against a plaintiff in the notice to putative plaintiffs. See Ondes
v. Monsanto Co., No. 4:11CV197 JAR, 2012 U.S. Dist. LEXIS 2596, at *7 (E.D. Mo. Jan. 10,
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2012)(noting that including a warning about potential costs in the class notice could have a “chilling
effect” on potential plaintiffs participating in FLSA actions and that it is unclear whether prevailing
defendants in FLSA actions are entitled to costs); see also Chapman v. Hy-Vee, Inc., No.
10-CV-6128-W-HFS, 2012 U.S. Dist. LEXIS 43829, at *10 (W.D. Mo. Mar. 29, 2012)(“It has been
repeatedly held, and continues to rule in this case that no mention will be made regarding any
possibility that plaintiffs could be liable for defendant's costs should defendant prevail.”); Littlefield,
679 F. Supp. 2d at 1019 (denying defendant’s request that the notice inform plaintiffs of possible
costs “[b]ecause this notice might discourage plaintiffs from joining the litigation”). Similarly, the
Court will not require the notice to outline the percentage fees that counsel could receive upon
resolution of the lawsuit. The notice adequately and accurately states that plaintiffs’ counsel is being
paid on a contingency basis. Finally, the Court does not find a basis for warning potential plaintiffs
that they could be required to travel to participate in this litigation. The Hotshots locations are all
located within this District. Thus, the travel costs to potential plaintiffs would be minimal.
In the proposed notice, Plaintiffs ask for class members to submit their consent forms within
ninety days. Defendants ask to shorten this time period to sixty days. Defendants claim that ninety
days is “excessive” and “inconsistent with the Case Management Order.”
The Court has previously found a ninety notice period to be acceptable and does not find it
to be inconsistent with the Case Management Order. See, e.g., Ondes v. Monsanto Co., No.
4:11CV197 JAR, 2012 U.S. Dist. LEXIS 2596, at *14 (E.D. Mo. Jan. 10, 2012)(adopting a 90 day
Notice Posted in Breakrooms or in Paychecks
Plaintiffs seek to notify potential plaintiffs of the litigation by means of (1) mailing and
emailing the notice, (2) posting the notice in breakrooms at Defendants’ locations, and (3) providing
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the notice in employees’ paychecks. (Motion, p. 13). Defendants assert that Plaintiffs are not
entitled to have notice included in paychecks when notice is achieved by other means. (Response,
p. 14). Defendants claim that notification by mail is sufficient and additional notification in
paychecks is inappropriate. (Id.). Plaintiffs, however, contend that notice should be sent via mail,
email and also in paychecks in order to reach the largest number of potential class members. (Reply,
What constitutes fair and proper notice is determined based on the facts of each case.
Denney v. Lester's, LLC, No. 4:12CV377 JCH, 2012 U.S. Dist. LEXIS 125560, at *10 (E.D. Mo.
Sept. 5, 2012). Here, the Court finds fair and proper notice to putative plaintiffs will be
accomplished by regular mail, electronic mail, and postings in Defendants’ break rooms, but not in
employees’ paychecks.4 See Putnam v. Galaxy 1 Mktg., 276 F.R.D. 264, 277-78 (S.D. Iowa
2011)(noting that “courts routinely approve requests to post notice in common areas or on employee
bulletin boards, even if there is an alternative form of notice” but denying plaintiffs’ request to notify
the putative class via insertions in employees’ paycheck envelopes). The Court believes that these
methods will allow the greatest number of potential class members to receive notice, without any
redundancy. See Kautsch, 504 F. Supp.2d at 690 (“At this stage of the litigation, justice is most
readily served by notice reaching the largest number of potential plaintiffs.”); Perrin v. Papa John’s
Int’l, Inc., No. 4:09CV01335, 2011 U.S. Dist. LEXIS 117046, at *5 (E.D. Mo. Oct. 11, 2011)(same).
Motion to Compel
In the Motion to Compel, Plaintiffs move to compel responses to their discovery requests.
Defendants object to these discovery requests based upon three primary reasons. First, Defendants
assert that the requested class information was premature, given that the Court had not conditionally
Defendants do not address posting the notice in the breakrooms, although Plaintiffs request
that type of notice. See Motion, p. 13.
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certified the class. (ECF No. 64, pp. 2-12). Because the Court has conditionally certified the class,
Defendants’ objections are moot. The Court orders Defendants to supplement their discovery
responses by December 17, 2012.
Second, Defendants contend that they have answered Plaintiffs’ discovery requests regarding
“policies and practices.” (ECF No. 64, pp. 13-16). Plaintiffs object that these discovery responses
are incomplete, largely based upon the position that Defendants “will only answer these
interrogatories and requests regarding the two named Plaintiffs.” (ECF No. 66, p. 5). Because the
Court has granted conditional class certification, Defendants shall supplement their discovery
responses regarding “policies and practices” by December 17, 2012.
Third, Defendants assert that they are not required to answer discovery requests regarding
their affirmative defenses. The following discovery responses are at issue: Interrogatory Nos. 13
and 17 of Defendants’ Answers to Plaintiffs’ First Set of Interrogatories; Interrogatories Nos. 1-5
of Defendants’ Answers to Plaintiffs’ Second Set of Interrogatories; Request No. 16 of Defendants’
Responses to Plaintiffs’ First Request for Production of Documents; and Request Nos. 1-8 of
Defendants’ Second Request for Production of Documents.
Defendants contend that they are not required to answer these discovery requests because
they are “contention” interrogatories and requests for production. “Contention interrogatories ...
may ask another party to indicate what it contends, to state all the facts on which it bases its
contentions, to state all the evidence on which it bases its contentions, or to explain how the law
applies to the facts.” Monsanto Co. v. E.I. du Pont de Nemours & Co., No. 4:09CV00686 ERW,
2012 U.S. Dist. LEXIS 1277, at *10 (E.D. Mo. Jan. 5, 2012)(citing In re Grand Casinos, Sec. Litig.,
181 F.R.D. 615, 618 (D. Minn. 1998)(emphasis in original)). Contention interrogatories “are
distinct from interrogatories that request identification of witnesses or documents that bear on the
allegations.” Id. “Contention interrogatories need not be fully answered until discovery is near
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completion.” Monsanto Co., 2012 U.S. Dist. LEXIS 1277, at *10 (citing Coleman v. Dental Org.
for Conscious Sedation, 2011 U.S. Dist. LEXIS 69897, 2011 WL 2600407 (E.D. Mo. June 29,
The Court finds that Plaintiffs are entitled to information related to any facts now known to
Defendants that support their affirmative defenses. If such facts are not available at this time, then
Defendants may supplement their responses later. To the extent that these discovery responses seek
privileged information or legal conclusions, the Court sustains Defendants’ objections.
Finally, Defendants must sign or verify their interrogatory responses.
IT IS HEREBY ORDERED that Plaintiffs’ Combined Motion to Conditionally Certify
Class, Order Disclosure of Putative Class Members’ Names and Contact Information, and to
Facilitate Class Notice, and Memorandum in Support  is GRANTED, in part, and the Court
conditionally certifies a class of all current and former hourly-paid employees of Hotshots who
shared in any tip pool for the period of three (3) years from the date of mailing notice.
IT IS FURTHER ORDERED that Plaintiffs Thelma White and Nicole Carroll
conditionally are authorized to act as class representatives.
IT IS FURTHER ORDERED that Riggan Law Firm, LLC and Dashtaki Law Firm, LLC
are authorized to act as class counsel.
IT IS FURTHER ORDERED that the notice attached as Exhibit 44-4 to the Plaintiffs’
Motion shall serve as notice in this case.
IT IS FURTHER ORDERED that Defendants shall provide Plaintiffs’ attorneys with the
names and current or last known mailing and email addresses of all employees who may be potential
plaintiffs in this suit on or before December 17, 2012.
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IT IS FURTHER ORDERED that Plaintiffs shall mail and email the notice and Defendants
shall post the notice in the breakrooms no later than January 17, 2013. That notice shall remain in
the breakrooms for ninety (90) days.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel is DENIED, in part, and
GRANTED, in part, as outlined above. Defendants shall supplement their discovery responses by
December 17, 2012.
Dated this 30th day of November, 2012.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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