Dualan et al v. Jacob Transportation Services, LLC

Filing 73

ORDER granting ECF No. 71 motion to be appointed interim class counsel; and approving the amended notice and consent-to-sue forms (ECF No. 72 ), with the caveat that plaintiffs must correct the identified issues (see attached) in the notice before serving it. Signed by Judge Jennifer A. Dorsey on 6/21/16. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Leonardo Dualan, et al.,

2:14-cv-01135-JAD-NJK

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Plaintiffs

Order Appointing Collective Action
Counsel and Approving Notice and
Consent to Sue Forms

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v.

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Jacob Transportation Services, LLC,

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[ECF No. 71]

Defendant

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Previously, I conditionally certified as a collective action under the Fair Labor Standards

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Act (FLSA) plaintiffs’ minimum-wage, overtime, and wage-deduction claims on behalf of all

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current and former shuttle-bus drivers who were employed by Jacob Transportation Services,

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LLC from July 10, 2011, to the present.1 I ordered the manner of serving the notice and consent-

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to-sue forms, approved a 90-day opt-in period, and ordered Jacob to produce the names and last

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known addresses for the potential opt-in plaintiffs.2 But I declined to approve the proposed

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notice and consent-to-sue forms because they required significant changes, so I instructed the

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parties to meet and confer before re-submitting them.3 I also instructed plaintiffs’ counsel that, if

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it wanted to be appointed counsel for the opt-in plaintiffs, it needed to file a motion seeking that

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relief.4

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Plaintiffs’ counsel now moves to be appointed counsel for this collective action,5 and the

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parties have submitted amended proposed notice and consent-to-sue forms.6 I appoint plaintiffs’

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counsel as counsel for the opt-in plaintiffs and approve, with several edits, the amended notice

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and consent-to-sue forms.

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ECF No. 70 at 2–12.

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Id. at 15–16.

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Id. at 12–18.

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Id. at 18.

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ECF No. 71.

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ECF No. 72.

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Discussion
A.

Appointing Counsel for the Collective-action Group

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The Bourassa Law Group seeks to be appointed as counsel for the opt-in plaintiffs.7

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“Although neither the federal rules nor the advisory committee notes expressly so state, it is

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generally accepted that the considerations set out in Rule 23(g)(1)(C), which governs

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appointment of class counsel once a class is certified, apply equally to the designation of interim

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class counsel before certification.”8 Federal Rule of Civil Procedure 23(g)(3) provides that “[t]he

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court may designate interim counsel to act on behalf of a putative class before determining

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whether to certify the action as a class action.” Under Rule 23(g)(1), courts must consider four

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factors when appointing counsel “[u]nless a statute provides otherwise.”9 These four factors are:

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1.

the work counsel has done in identifying or investigating potential claims in the
action;

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counsel’s experience in handling class actions, other complex litigation, and the
types of claims asserted in the action;

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3.

counsel’s knowledge of the applicable law; and

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4.

the resources that counsel will commit to representing the class.10

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Under the federal procedural rules, courts “may [also] consider any other matter pertinent to

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counsel’s ability to fairly and adequately represent the interests of the class.”11 I recognize that

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an FLSA collective action is different from a class action under Rule 23, but I find these

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principles to be useful guideposts for this analysis.

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In re Air Cargo Shipping Servs. Antitrust Litig., 240 F.R.D. 56, 57 (E.D.N.Y. 2006) (gathering
citations from around the country) (“Although neither the federal rules nor the advisory
committee notes expressly so state, it appears to be generally accepted that the considerations set
out in Rule 23(g)(1)(C), which governs appointment of class counsel once a class is certified,
apply equally to the designation of interim class counsel before certification.”).
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ECF No. 71.

FED. R. CIV. P. 23(g)(1).

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Id. at 23(g)(1)(A).

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Id. at 23(g)(1)(B).
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Based on the substantive work that plaintiffs’ counsel has already invested in this case,

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their attested experience in handling class actions and complex civil litigation, the knowledge of

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this legal area that they have already demonstrated in this case, and their stated commitment to

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providing the necessary resources to represent the plaintiffs in this collective action; and having

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considered that defendant offers no objection, I find that The Bourassa Law Group can fairly and

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adequately perform the role of counsel for the opt-in plaintiffs in this collective action who do

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not appear through their own counsel or indicate an intention to represent themselves.

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B.

Approval of Notice and Consent-to-sue Forms

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Because I identified numerous issues that required correction with plaintiffs’ prior

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proposed notice and consent-to-sue forms, I refused to approve them, and I instructed the parties

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to meet and confer before re-submitting those forms.12 Each issue that I identified has been

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corrected in the amended notice and consent-to-sue forms that the parties have re-submitted.

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However, I have several additional edits that must be made to the notice before it can be served:

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C

The font in the second sentence in the second paragraph of the “8. YOUR LEGAL

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REPRESENTATION IF YOU JOIN:” section of the notice13 that is highlighted below

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must be increased so that it is the same size as the surrounding text:

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C

The first sentence of the second paragraph in the “4. EFFECT OF JOINING THIS

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CASE:” section of the notice14 must be edited to state: “If you sign and return the

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enclosed Consent to Join Collective Action (Fair Labor Standards Act, 29 U.S.C.

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§216(b)) form, are joined in the case, and do not retain other counsel to represent you

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instead or indicate to the court that you intend to represent yourself, then you are agreeing

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ECF No. 70 at 12–18.

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ECF No. 72 at 7.

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ECF No. 72 at 6.

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to designate Plaintiffs as your agents to make decisions on your behalf concerning the

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litigation, the method and manner of conducting this litigation, the entering of an

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agreement with Plaintiffs’ Counsel concerning attorneys’ fees and costs, and all other

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matters pertaining to this lawsuit.”

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C

The first sentence in the first paragraph of the “8. YOUR LEGAL

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REPRESENTATION IF YOU JOIN:” section of the notice15 must be edited to replace

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“through Plaintiffs’ attorney” with “by Plaintiffs’ attorney.”

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C

The first sentence in the second paragraph of the “8. YOUR LEGAL
REPRESENTATION IF YOU JOIN:” section of the notice16 must be edited to state:

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“By submitting the enclosed Consent to Join Collective Action (Fair Labor Standards

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Act, 29 U.S. C. §216(b)) form, you agree that Plaintiffs’ counsel will be representing you

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unless you obtain other attorneys or advise the court that you are representing yourself.

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C

The final sentence in the second paragraph of the “8. YOUR LEGAL

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REPRESENTATION IF YOU JOIN:” section of the notice17 must be edited to state:

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“The court must approve any fee award before it can be paid to Plaintiffs’ Counsel.”

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Counsel can make these corrections without re-submitting the form to the court, and with these

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corrections, the amended notice and consent-to-sue forms are approved.

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Conclusion

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Accordingly, and with good cause appearing,

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It is hereby ORDERED that plaintiffs’ counsel’s motion to be appointed interim class

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counsel [ECF No. 71] is GRANTED. The Bourassa Law Group is appointed as counsel for any

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opt-in plaintiff who does not enter an appearance through his own counsel or indicate a desire to

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represent himself in a pro se capacity.

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Id.

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Id.

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Id. at 7.

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IT IS FURTHER ORDERED that the amended notice and consent-to-sue forms [ECF

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No. 72] are APPROVED, with the caveat that plaintiffs must correct the above-identified issues

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in the notice before serving it.

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DATED: June 21, 2016

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_______________________________
_______________________
_ ___ _ _ __ _
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Jennifer A. Dorsey
ifer Dorsey
r
o
United States District Judge
ed States District Judge
tate
ud
ud

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