Camp et al v. Bimbo Bakeries USA, Inc., et al

Filing 54

ORDER granting 25 Motion to Certify Class Conditionally under the FLSA. So Ordered by Judge Steven J. McAuliffe. (lml)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

David Camp and Keith Hadmack,
on behalf of themselves and all
others similarly situated,
Plaintiffs
v.

Case No. 18-cv-378-SM
Opinion No. 2019 DNH 020

Bimbo Bakeries USA, Inc. and Bimbo
Foods Bakeries Distribution, LLC,
Defendants

O R D E R

David Camp and Keith Hadmack bring this wage and hour
collective action, asserting that defendants unlawfully treated
them as independent contractors when, in fact, they were
employees.

As a consequence, say plaintiffs, they were

wrongfully denied overtime pay, refused reimbursement for workrelated expenses, and subjected to unlawful withholdings from
their pay.

Having survived defendants’ motion to dismiss,

plaintiffs now move the court to grant them conditional
certification of a collective action under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.

For the reasons discussed, plaintiffs’ motion for
conditional certification is granted.

Background
The factual backdrop to this action was set out in the
court’s earlier order denying defendants’ motion to dismiss
(document no. 45) and need not be recounted in detail.

It is

sufficient to note that Bimbo Bakeries USA and Bimbo Foods
Bakeries Distribution (collectively, “Bimbo Bakeries”) are in
the business of manufacturing, selling, and delivering baked
goods under brand names that include Sara Lee and Nature’s
Harvest.

Plaintiffs are among the fifty or so “distributors” in

New Hampshire who deliver Bimbo Bakeries products to stock
shelves in various stores.

The parties dispute whether plaintiffs (and similarly
situated individuals) are entitled to overtime pay under the
FLSA.

Bimbo Bakeries contends that all of its distributors are

independent contractors and, therefore, not entitled to
overtime.

Plaintiffs, on the other hand, contend that they are

actually employees, who were wrongfully denied overtime pay.
noted above, plaintiffs seek conditional certification of a
collective action under the FLSA.

The FLSA and Collective Actions
The portion of the FLSA addressing collective actions
provides that:

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As

An action to recover the liability prescribed in the
preceding sentences may be maintained against any
employer (including a public agency) in any Federal or
State court of competent jurisdiction by any one or
more employees for and in behalf of himself or
themselves and other employees similarly situated. No
employee shall be a party plaintiff to any such action
unless he gives his consent in writing to become such
a party and such consent is filed in the court in
which such action is brought.

29 U.S.C. § 216(b) (emphasis supplied).

Thus, a “collective

action” under the FLSA differs from a “class action” under Rule
23 of the Federal Rules of Civil Procedure.

While Rule 23

provides that potential members of a class action must opt out
of the litigation if they choose not to participate, the FLSA
provides that those individuals who are “similarly situated” to
the plaintiff must affirmatively opt into a collective action if
they wish to participate.
Civ. P. 23.

Compare 29 U.S.C. § 216, with Fed. R.

See also Tyson Foods, Inc. v. Bouaphakeo, 136 S.

Ct. 1036, 1043 (2016) (“while a class under Rule 23 includes all
unnamed members who fall within the class definition, the sole
consequence of conditional certification under § 216 is the
sending of court-approved written notice to employees[,] who in
turn become parties to a collective action only by filing
written consent with the court.”) (citation and internal
punctuation omitted).

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I.

Conditional Certification.
Courts within the First Circuit typically employ a two-step

approach to certification of collective actions under section
216(b) of the FLSA.

See Johnson v. VCG Holding Corp., 802 F.

Supp. 2d 227 (D. Me. 2011); Prescott v. Prudential Ins. Co., 729
F. Supp. 2d 357 (D. Me. 2010).

In Prescott, Judge Hornby

explained that two-step process as follows:

[T]he certification of a collective action typically
proceeds in two stages. The first stage determines
whether notice should be given to potential collective
action members and usually occurs early in a case,
before substantial discovery, based only on the
pleadings and any affidavits which have been
submitted. At the first stage, the plaintiff has the
burden of showing a reasonable basis for her claim
that there are other similarly situated employees. In
other words, the plaintiff must make a modest factual
showing that she and other employees, with similar but
not necessarily identical jobs, suffered from a common
unlawful policy or plan. The standard at the initial
stage has been called “not particularly stringent,”
“fairly lenient,” “flexible,” “not heavy,” and “less
stringent than that for joinder under Rule 20(a) or
for separate trials under 42(b). Under this “fairly
lenient” standard, the initial stage analysis
typically results in conditional certification of a
collective action.
Later, when discovery is complete, an employer may
move to decertify the collective action. This is the
“second” stage, and the court must then make a factual
determination as to whether there are similarlysituated employees who have opted in. Factors
relevant to the stage-two determination include:
factual and employment settings of the individual
plaintiffs, the different defenses to which the
plaintiffs may be subject on an individual basis, and

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the degree of fairness and procedural impact of
certifying the action as a collective action. If the
court finds then that employees are not “similarly
situated,” it will decertify the class and dismiss the
opt-in plaintiffs without prejudice.

Prescott, 729 F. Supp. 2d at 364–65 (D. Me. 2010) (citations,
quotations, footnote, and internal punctuation omitted).

See

also Mejia v. Bimbo Bakeries USA, Inc., No. CV-16-00654-TUC-JAS,
2017 WL 6415357, at *3 (D. Ariz. Aug. 14, 2017) (“Given the
light burden, motions to conditionally certify a class for
notification purposes are typically granted.”) (citations
omitted).

So, at this initial stage, plaintiffs bear the “light”
burden of demonstrating that there is “a reasonable basis for
[their] claim that there are other similarly situated
employees.”

Johnson, 802 F. Supp. 2d at 234 (quoting Morgan v.

Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir.
2008)).

While neither the FLSA nor the Court of Appeals for the

First Circuit has defined “similarly situated,” courts have
generally found that “similarly situated employees have similar
(not identical) job duties and pay provisions, and are victims
of a common policy or plan that violated the law.”

Prescott,

729 F. Supp. 2d at 364 (citations and internal punctuation
omitted).

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In support of their motion for conditional certification,
plaintiffs assert that all potential members of the collective
are required to execute a “Distributor Agreement” with
defendants.

According to plaintiffs, those Distributor

Agreements are all substantially similar - at least in ways
material to this litigation. 1

And, say plaintiffs, when viewed

in their entirety, those agreements make plain that
“distributors” are actually employees, rather than independent
contractors.

Plaintiffs also allege that all potential members

of the collective are subject to similar policies, including
defendants’ substantial control over the products that
Distributors may sell, the price at which they sold those
products, the customers to whom they sold, and the fact that
defendants purport to serve as the “agent” of Distributors for
purposes of negotiating pricing with customers and pursuing
business opportunities for them.

See generally Scott v. Bimbo

Bakeries, USA Inc. 2012 WL 645905 (E.D. Pa. Feb. 29, 2012)
(conditionally certifying a substantially similar collective of
delivery drivers employed by Bimbo Bakeries).

1

See also Mejia v.

The court notes that defendants assert that “at least 10
different [Distributor Agreements] exist virtually all of which
have materially varying terms.” Defendants’ Objection (document
no. 33-1) at 4. At this preliminary juncture, however, the
court need not resolve whether there are, indeed, material
differences in those agreements. That matter can be addressed
at the next stage when, presumably, defendants will move to
“decertify” the collective.
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Bimbo Bakeries USA, Inc., No. CV-16-00654-TUC-JAS, 2017 WL
6415357 (D. Ariz. Aug. 14, 2017) (conditionally certifying a
collective of Distributors employed by Bimbo Bakeries in
Arizona).

And, as in Scott, plaintiffs say they are required by

the terms of the Distributor Agreements to service at least some
non-profitable customers.

See, e.g., Camp Distributor Agreement

(document no. 25-4) at § 4.1 (requiring servicing of nonprofitable “Outlets” if it is a condition for servicing others
in the “Chain”); Haddock Distributor Agreement (document no. 255) at § 4.1 (same).

Plaintiffs have satisfied their modest burden to
demonstrate a reasonable basis for crediting the assertion that
other aggrieved individuals exist who are similarly situated to
the plaintiffs in relevant respects, given the claims and
anticipated defenses.

They have adequately supported their

claim that defendants unlawfully maintain a company-wide policy
of treating delivery drivers as independent contractors,
requiring those drivers to execute substantially similar
“Distributor Agreements,” and failing to pay those drivers at
overtime rates when they work in excess of 40 hours per week.

But, say defendants, that is not sufficient.

Plaintiffs,

they contend, are required to make an additional showing.

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That

is, they must identify some unspecified number of other
distributors (i.e., those to whom plaintiffs propose to give
notice of this action) who are actually interested in joining
the action.

See Defendants’ Memorandum (document no. 33-1) at

15 (“Although this action has been pending for more than 5
months and Plaintiffs have spoken with [defendants’ “Independent
Business Partners”] specifically regarding this lawsuit and
referred them to counsel, no other IBP has opted to join.

Nor

has another IBP submitted a declaration in support of
Plaintiffs’ claims.

This is yet another independent reason to

deny the Motion”).

This is an issue on which there is substantial debate, even
among district courts in this circuit.

Compare Johnson, 802 F.

Supp. 2d at 238 (holding that, given plaintiffs’ personal
knowledge of other potential members of the collective, their
failure to identify others interested in joining the litigation
precluded granting conditional certification) with Rossello v.
Avon Prod., Inc., No. CIV. 14-1815 JAG, 2015 WL 5693018, at *1
(D.P.R. Sept. 28, 2015) (“[T]he Court fails to see the
importance of assessing the interest of other Plaintiffs in
joining the action at the conditional certification stage when
there exists a second stage where Defendant could move to
decertify the class if in fact no other plaintiffs opt in.”) and

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Litz v. Saint Consulting Grp., Inc., No. CIV.A. 11-10693-GAO,
2012 WL 549057, at *2 (D. Mass. Feb. 17, 2012) (“Although some
courts have imposed this additional requirement, it has not been
adopted by the First Circuit.

At least in this case, I agree

with the plaintiff that this additional step is premature.

The

purpose of conditionally certifying a class is so that the
potential class members may all be notified.

To require at this

stage a showing that potential class members, who have not been
formally notified, want to join the class is inconsistent with
the idea that the preliminary certification is only
‘conditional.’”).

On balance, the court agrees that it is premature to
require plaintiffs to demonstrate, before notice is given, that
there are other potential members of the collective who are
interested in participating in this litigation.

Defendants have

not produced contact information for the potential opt-in
plaintiffs.

And, unlike Johnson, where the named plaintiffs

already knew the identities of many potential opt-in plaintiffs,
that is not the case here.

As recognized by the United States

District Court for the District of Puerto Rico,

This Court agrees with the Magistrate that Plaintiffs
are not required to make this showing before
conditional certification is granted. Imposing such a
requirement on Plaintiffs would “put the cart before

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the horse,” as it would force Plaintiffs to issue
their own informal notice before they petition the
Court to issue formal notice. This would undermine a
court’s ability to provide potential plaintiffs with a
fair and accurate notice and increase the possibility
of misleading potential plaintiffs. Furthermore,
imposing such a requirement would undermine the broad
remedial goal of the Fair Labor Standards Act.

Rossello v. Avon Prod., Inc., No. CIV. 14-1815 JAG, 2015 WL
5693018, at *1 (D.P.R. Sept. 28, 2015) (citations and internal
punctuation omitted).

See also Amendola v. Bristol-Myers Squibb

Co., 558 F. Supp. 2d 459, 466 (S.D.N.Y. 2008) (“FLSA plaintiffs
are not required to show that putative members of the collective
action are interested in the lawsuit in order to obtain
authorization for notice of the collective action to be sent to
potential plaintiffs.”) (citations omitted).

II.

Notice to Potential Members of the Collective.
Plaintiffs have proposed that the court conditionally

certify the following collective:

All individuals who executed a Distributor Agreement,
either on their own behalf or on behalf of a
corporation or other entity, and personally delivered
products for Defendants in New England from May 8,
2015 to the present.

Defendants object, asserting that the proposed collective would
include more than 500 individuals (only about 60 of whom operate
in New Hampshire).

A collective of that size would require

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individualized inquiries into whether the “motor carrier
exemption,” is implicated, see 29 U.S.C. § 213(b)(1) and 49
U.S.C. § 31502; whether the FLSA’s “outside sales” exemption
applies, see 29 U.S.C. § 213(a)(1) and 29 C.F.R. § 541.500(a);
whether the “bona fide executive” exemption applies, see 29
U.S.C. § 213(a)(1); and whether each individual was subject to
an arbitration agreement (as some Distributor Agreements
apparently include arbitration clauses). 2

At this preliminary stage, however, the potential
differences identified by defendants between plaintiffs and
other Distributors are not sufficient to preclude conditional
certification.

As the Scott court observed:

[W]e acknowledge that Defendants have pointed to
several individual differences between Plaintiffs and
the proposed class members, including their own use of
“employees” or “helpers” and their individual
opportunities to generate profits. Defendants have
also noted that certain FLSA exemptions may apply to
bar certain individual Plaintiffs and potential class
members from collecting under the FLSA. However, at
this preliminary stage of the case, these differences
among proposed class members and the potential impact
of FLSA exemptions do not undermine Plaintiffs’ modest
factual showing. See Westfall v. Kendle
2

Defendants also raise a seemingly non-frivolous argument
that this court lacks personal jurisdiction over them as to the
FLSA claims of non-New Hampshire members of any collective.
That issue requires additional briefing from the parties and can
be addressed by the court once a proper notice has been issued
and all potential members of the collective have been
identified.
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International, CPU, LLC, 2007 WL 486606 at *9
(N.D.W.V. Feb. 15, 2007) (holding that arguments
regarding individual differences among class members,
which are relevant to their status as “employees”
under the FLSA, are better suited for second stage of
the similarly situated analysis); Jirak v. Abbott
Laboratories, 566 F. Supp. 2d 845, 849–50 (N.D. Ill.
2008) (“[T]he application of an FLSA exemption is an
affirmative defense on which Defendant carries the
burden of proof ... [and] whether [plaintiffs] are
exempt from the FLSA cannot be determined based on the
limited record developed at this stage”) (citations
omitted).

Scott v. Bimbo Bakeries, USA, Inc., No. CIV.A. 10-3154, 2012 WL
645905, at *10.

See generally Chen v. Major League Baseball

Props., 798 F.3d 72, 81–82 (2d Cir. 2015) (“The application of
an exemption to the FLSA is an affirmative defense. . . .
Because the FLSA is a remedial law, exemptions are to be
narrowly construed against the employers seeking to assert them
and their application limited to those establishments plainly
and unmistakably within their terms and spirit.

Thus, an

employer invoking an exemption to the FLSA bears the burden of
proving that the establishment is covered by the exemption.”)
(citations omitted).

Conclusion
For the foregoing reasons, the court concludes that
plaintiffs have adequately alleged that there are other
“similarly situated” persons, such that conditional

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certification of a collective action to address their
(potential) claims under the FLSA is appropriate.

Although the

size of the group to which plaintiffs propose to give notice may
be substantial, and some individual plaintiffs may be barred
from recovering under one or more exemptions to the FLSA, those
facts give rise to issues best resolved at the second stage of
the preferred analysis.

Accordingly, plaintiffs’ Motion for Conditional
Certification and the Issuance of Notice (document no. 25) is
granted and the court conditionally certifies the following
collective:

All individuals who executed a Distributor Agreement,
either on their own behalf or on behalf of a
corporation or other entity, and personally delivered
products for Defendants in New England from May 8,
2015 to the present.

In addition, the Court hereby:
(1) directs Defendants to identify all members of the
described collective and to produce to Plaintiffs
within 30 days of this Order a list of the potential
opt-in plaintiffs’ names, last-known mailing
addresses, email addresses, telephone numbers, work
locations, and dates of employment;
(2) authorizes Plaintiffs to mail, email, and text
the Notice and Opt-in Form attached to Plaintiffs’
Motion to all members of the collective identified by
Defendants;

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(3) grants all individuals identified by Defendants a
period of 90 days following receipt of Notice to “optin” to this action; and
(4) authorizes a reminder notice to be issued via
regular mail, email, and text message to nonresponsive class members 45-days after the initial
mailing of notice.

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
February 4, 2019
cc:

All Counsel of Record

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