Jibowu v. Target Corporation et al

Filing 135

ORDER regarding the parties' 132 134 Motions to Amend/Correct/Supplement: As explained in the attached Memorandum & Order, (1) Plaintiffs' Proposed Notice (Dkt. 131 -1) should be amended to (a) identify ETLs more specifically, (b) include defense counsel's contact information, and (c) conform with the Court's line edits shown in the attached; (2) The six Target stores in California at which Plaintiff Isais allegedly worked from time to time after June 28, 2014, shall be included in the Proposed Notice; (3) Target's requests to modify Plaintiffs' description of the case and to add additional language regarding the right of collective members to choose their own counsel are denied; < b>(4) Plaintiffs' request for production of collective members personal contact information to Plaintiffs' counsel is denied, but without prejudice to a future showing of necessity; (5) Target shall provide the third-party admin istrator with the personal contact information of all collective members as described in the attached Memorandum & Order, and notwithstanding the Court's September 30, 2020 Order, which is amended to the extent that it is inconsistent with this Order. Within seven (7) days of the date of this Order, the parties shall submit for the Court's approval a further Revised Proposed Notice and Consent to Join form that complies with the directives herein. Ordered by Judge Pamela K. Chen on 12/16/2020. (Nguyen, Andrew)

Case 1:17-cv-03875-PKC-CLP Document 135 Filed 12/16/20 Page 1 of 15 PageID #: 35514

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
PRISCILLA JIBOWU, individually and on
behalf of all other persons similarly situated,
Plaintiff,

MEMORANDUM & ORDER
17-CV-3875 (PKC) (CLP)

- against TARGET CORPORATION and TARGET
CORPORATION OF MINNESOTA,
Defendants.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
Plaintiff Priscilla Jibowu, formerly employed as an Executive Team Leader (“ETL”) by
Defendants Target Corporation and Target Corporation of Minnesota (collectively, “Target”),
brought this collective action under the Fair Labor Standards Act (“FLSA”) against Target for
alleged overtime violations. Several other former Target ETLs subsequently joined the action as
opt-in plaintiffs (collectively, “Plaintiffs”). On September 30, 2020, the Court granted conditional
certification of the collective action, but circumscribed it to certain ETL positions at certain Target
stores. See Jibowu v. Target Corp., —F. Supp. 3d—, 2020 WL 5820957, at *25, *29 (E.D.N.Y.
Sept. 30, 2020) (“September 30 Order”). Accordingly, the parties were directed to confer and
submit a revised Proposed Notice and Consent to Join form. Id. at *29.
The parties, however, have been unable to resolve all their differences regarding the Notice
and Consent to Join form, and each party has submitted its own proposed form. (Plaintiffs’
Proposed Notice and Consent to Join Form (“Pls.’ Notice”), Dkt. 131-1; Target’s Proposed Notice
and Consent to Join Form (“Target’s Notice”), Dkt. 132-2.) As discussed below, the Court agrees
in part with Plaintiffs and in part with Target, and therefore directs the parties to submit a further
revised Proposed Notice and Consent to Join form that complies with the directives herein.
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DISCUSSION
The Court assumes the parties’ familiarity with the facts of this case, which are set forth at
length in the September 30 Order. See 2020 WL 5820957, at *1–2, *17–19. Presently, the parties
disagree in five areas with respect to the Proposed Notice: (1) the accuracy and specificity with
which the Notice describes the scope of the conditionally certified collective; (2) the level of detail
included in the Notice regarding allegedly managerial and non-managerial tasks that ETLs
perform; (3) whether the Notice should include defense counsel’s contact information; (4) whether
the Notice should inform potential opt-in plaintiffs of their right to choose their own counsel; and
(5) whether Plaintiffs’ counsel may receive personal contact information for members of the
collective. Each of these issues is addressed in turn.
I.

Specific Store Locations and ETL Positions
“[I]t is well-established that ‘courts have broad discretion to craft appropriate notices that

effectuate the overarching policies of the collective suit provisions and provide employees with
accurate and timely notice concerning the pendency of the collective action, so that they can make
informed decisions about whether to participate.’” Cabrera v. Stephens, No. 16-CV-3234 (ADS)
(SIL), 2017 WL 4326511, at *8 (E.D.N.Y. Sept. 28, 2017) (quoting Hernandez v. Immortal Rise,
Inc., No. 11-CV-4360 (RRM) (LB), 2012 WL 4369746, at *6 (E.D.N.Y. Sept. 24, 2012)).
Accordingly, the Court “has the authority to facilitate and narrow a FLSA opt-in notice such that
it is directed towards the appropriate individuals that are the subject of the FLSA collective action.”
Jibowu, 2020 WL 5820957, at *25 (internal quotation marks omitted) (citing Glatt v. Fox
Searchlight Pictures, Inc., 811 F.3d 528, 540 (2d Cir. 2016)). “The Court understands its
discretion to be guided by the goals of the notice: to make as many potential plaintiffs as possible
aware of this action and their right to opt in without devolving into a fishing expedition or imposing

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undue burdens on the defendants.” Id. at *25 (quoting Guzelgurgenli v. Prime Time Specials Inc.,
883 F. Supp. 2d 340, 356 (E.D.N.Y. 2012)).
Here, the September 30 Order conditionally certifies a collective comprised of
current and former Food ETLs, Sales Floor ETLs, Softlines ETLs, Hardlines ETLs,
Guest Experience ETLs, Replenishment ETLs, and Logistics ETLs in stores that
do not have Replenishment ETLs, employed by Defendants at the Target store
locations within California, Illinois, New York, Ohio, Oklahoma, Pennsylvania,
and Texas, at which Plaintiff Jibowu or the opt-in Plaintiffs worked, at any time
from June 28, 2014 to the present.
Id. at *29. The September 30 Order makes clear that the subject stores include “locations at which
Plaintiffs worked, even temporarily,” during the relevant period. Id. at *25. Target, though, takes
issue with including several stores in California—Riverside SE, Moreno Valley East, Whittier,
Palm Springs, Lake Elsinore, and Riverside—at which one of the opt-in Plaintiffs, Isaura Isais,
allegedly worked on a temporary basis from time to time. (Target’s Letter Brief (“Target Br.”),
Dkt. 132, at 2; see also Plaintiffs’ Letter Brief (“Pls. Br.”), Dkt. 134, at 1.) Target argues that it
has no records of Isais’s temporary work at these stores and has no way of verifying that Isais
worked at the stores during the conditionally certified period, given that Isais worked as an ETL
at Target from November 2007 until April 2019. (Target Br., Dkt. 132, at 2; see also Declaration
of Isaura Isais (“Isais Decl.”), Dkt. 79-5, ¶ 2.) Plaintiffs point out that, according to Target’s
counsel, Target does not keep records of temporary employment. (Pls. Br., Dkt. 134, at 1.)
Additionally, Plaintiffs’ counsel represents that they have confirmed with Isais that she worked at
each of the disputed California stores after June 28, 2014. (Id.)
In light of the representations by Plaintiffs’ counsel, which the Court has no reason to
doubt, the six disputed California stores are part of the conditionally certified collective and should
be included in the Proposed Notice. At this stage of the proceedings, all Plaintiffs must do to be
able to send notice to potential opt-in plaintiffs is “make a modest factual showing” that they and
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potential opt-in members are “similarly situated with respect to the allegedly unlawful policy or
practice.”

Jibowu, 2020 WL 5820957, at *20 (internal quotation marks omitted) (quoting

Korenblum v. Citigroup, Inc., 195 F. Supp. 3d 475, 480 (S.D.N.Y. 2016)); accord Myers v. Hertz
Corp., 624 F.3d 537, 555 (2d Cir. 2010). “The court does not resolve factual disputes, decide
substantive issues going to the ultimate merits, or make credibility determinations at this stage.”
Jibowu, 2020 WL 5820957, at *20 (internal quotation marks and citation omitted). Here, Isais
declares that during her employment as an ETL at Target, she worked “from time to time at seven
other Target stores throughout California,” including “locations in Whittier, Palm Springs, Moreno
Valley, Lake Elsinore, Riverside, Riverside East, and Menifee.” (Isais Decl., Dkt. 79-5, ¶ 8.) At
each of those locations, the work “was identical,” and she “witnessed and met other ETLs
performing manual labor, working more than 40 hours a week, and not receiving overtime pay.”
(Id.) These statements, combined with the representations of Plaintiffs’ counsel that they have
confirmed that Isais worked at six of the seven locations—all except Menifee—after June 28,
2014, satisfy Plaintiffs’ burden at this juncture. Even under a heightened “modest plus standard,”
where the Court considers “evidence submitted by both parties,” Jibowu, 2020 WL 5820957, at
*20 (internal quotation marks omitted) (quoting Korenblum, 195 F. Supp. 3d at 482), Target
provides no evidence that Isais did not work at the six disputed stores in California during the
relevant period. That Target fails to keep records of temporary employment is no reason to exclude
the disputed stores from the Proposed Notice, particularly since one of the goals of notice is “to
make as many potential plaintiffs as possible aware of this action and their right to opt in.” See id.
at *25 (quoting Guzelgurgenli, 883 F. Supp. 2d at 356).
The Court, however, agrees with Target that the Proposed Notice must be specific as to
which ETL positions are part of the collective. The September 30 Order conditionally certifies

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only certain ETL positions—namely, “Food ETLs, Sales Floor ETLs, Softlines ETLs, Hardlines
ETLs, Guest Experience ETLs, Replenishment ETLs, and Logistics ETLs in stores that do not
have Replenishment ETLs.” Id. at *29. Yet Plaintiff’s Proposed Notice mostly uses the general
term “ETL” throughout, after listing specific ETL positions at the beginning of the notice. (See
Pls.’ Notice, Dkt. 131-1.) For example, at one point, Plaintiff’s Proposed Notice states: “The Court
has authorized this notice under the FLSA on behalf of all persons who are or were employed as
ETLs by Target at any time since June 28, 2014 to the present.” (Id. at 1.) This use of the general
term “ETL” is confusing, if not misleading, and the Court agrees that “ETL” should be replaced
with “Subject ETL”1 throughout, where appropriate. The Court also agrees that the Proposed
Notice should specify that only Logistics ETLs at stores without Replenishment ETLs are included
in the conditionally certified collective. Plaintiffs argue that these changes make the Proposed
Notice less legible, but the Court disagrees. Regardless, any minimal decrease in the legibility of
the Proposed Notice is outweighed by the need for the notice to be clear and accurate. See Cabrera,
2017 WL 4326511, at *8 (stating that district courts have “broad discretion” to effectuate notice
that is “accurate and timely”).
Accordingly, with respect to the stores at issue and the specificity with which the Proposed
Notice refers to ETLs, the Court adopts a hybrid of Plaintiffs’ and Target’s proposed notices. In
particular, the beginning of Plaintiffs’ Proposed Notice (Dkt. 131-1, at 1) should be modified as
follows:2

As discussed below, “Subject ETL” will be defined by type of ETL, store location, and
date of employment at the outset of the Proposed Notice.
1

Plaintiffs’ Proposed Notice lists the “Guest Experience” ETL position twice. (See Dkt.
131-1, at 1.) In modifying Plaintiffs’ Proposed Notice, the Court fixes this duplication.
2

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If you were employed by Target as an Executive Team Leader (“ETL”) in any of
the following positions: Guest Experience; Hardlines; Logistics; Replenishment;
Salesfloor; Guest Experience; Food; or Softlines; or Logistics (in a store with no
Replenishment ETL) - at one of these stores: T1398 (Edmond); T1401 (Gateway);
T1430 (Richardson Square Mall); T1849 (Atlantic Terminal); T1889 (Chicago
South Loop); T1961 (Eastvale); T2159 (Sandusky); T2234 (Rowlett); T2739
(Lawton); T2486 (South Lebanon); T1843 (Riverside SE); T2309 (Moreno Valley
East); T2019 (Whittier); T307 (Palm Springs); T2195 (Lake Elsinore); or T212
(Riverside) at any time since June 28, 2014 to the present then you are a
“Subject ETL” and may have rights under this lawsuit.
Additionally, the term “ETL” should be replaced with “Subject ETL” throughout, where
appropriate.
II.

Listing Examples of Disputed Tasks
Plaintiffs’ Proposed Notice contains a description of the case and claims. This description

includes examples of tasks performed by ETLs that Plaintiffs allege are non-managerial.
Specifically, Plaintiffs’ Proposed Notice states:
A former ETL-Replenishment and ETL-Sales Floor, Priscilla Jibowu, has sued
Target, and she has been joined in the lawsuit by seven other ETLs. They allege
that they and the other ETLs should have been paid time-and-a-half overtime for
all hours worked more than 40 hours in a week. They allege that the ETLs do not
perform management duties as their primary duties, and instead that their primary
duties do not differ substantially from those performed by hourly, non-exempt
employees. These duties include tasks such as stocking shelves, zoning, working
the cash registers, cleaning the store, assisting customers, building displays,
unpacking merchandise, and unloading trucks. As a result, they claim that the
ETLs are entitled to overtime under the Fair Labor Standards Act (“FLSA”).
(Pls.’ Notice, Dkt. 131-1, at 1 (emphasis added).)
Target objects to the list of examples, i.e., the sentence emphasized above. (Target Br.,
Dkt. 132, at 2–3.) It argues that the list of examples is gratuitous, “is plainly advocacy disguised
as notice, and an attempt to coach potential members of the collective about [Plaintiffs’] theory of
the case should they wish to participate.” (Id. at 3.) Target maintains that if Plaintiffs’ list of
examples is included, then the Notice “should also list managerial tasks performed to provide a
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balanced picture of the arguments in the case.” (Id.) Target proposes adding the language
emphasized below:
Target denies the allegations in the complaint and is defending against the lawsuit.
Target contends that the primary duties of Subject ETLs are management tasks, not
non-management tasks, including directing the work of Team Members and Team
Leaders; recommending or participating in hiring, training, promotion,
disciplinary, termination, or other employment-related decisions; evaluating and
coaching performance of Team Members and Team Leaders; and making
independent judgments about how to run the ETL’s area of the store; denies
liability; and maintains that ETLs were paid properly and correctly classified as
exempt from overtime compensation.
(Target’s Notice Redlined, Dkt. 132-1, at 3 (emphasis added).)
The Court disagrees with both Target’s objection and its proposed addition. Notice is
meant to provide potential opt-in plaintiffs with “accurate and timely” information, “so that they
can make informed decisions about whether to participate.” Jibowu, 2020 WL 5820957, at *25
(quoting Bittencourt v. Ferrara Bakery & Café, Inc., 310 F.R.D. 106, 116 (S.D.N.Y. 2015));
accord Cabrera, 2017 WL 4326511, at *8. The examples that Plaintiffs provide do just that: they
make concrete the claims in this case so that a potential opt-in plaintiff may make an informed
decision about whether to participate. Target’s proposed addition, on the other hand, is superfluous
and confusing. The Notice already explains that “Target denies the allegations in the complaint”
and “contends that the primary duties of Subject ETLs are management tasks.” (Pls.’ Notice, Dkt.
131-1, at 1.) In light of these statements, the Court fails to see how Target’s proposed addition
would help potential opt-in plaintiffs make an informed decision about whether to participate, as
opposed to attempting to confuse and dissuade them from joining the action.
Moreover, Target’s concern about “balance” is misplaced. (See Target Br., Dkt. 132, at 2–
3.) The purpose of the Notice is to inform Subject ETLs of the pendency of the action so that they
may decide whether to join as plaintiffs, not to litigate the case. Accordingly, allowing Plaintiffs
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to include examples of non-managerial tasks to make clear their claims in concrete terms, without
a corresponding list of managerial tasks, does not create an improperly “unbalanced” notice.
In short, Target’s proposed addition is inappropriate, and the Court approves Plaintiffs’
proposed description of the case and claims without any further additions or modifications.
III.

Defense Counsel’s Contact Information
Target asks that the Notice include defense counsel’s contact information. (Target Br.,

Dkt. 132, at 3.) Target proposes that this information be included at the end of the section titled
“What Happens If I Do Not Join?” and be preceded by the following sentence: “If you decide not
to join the lawsuit, you also may contact Target’s counsel (but if you decide to join the lawsuit, do
not contact them).” (Target’s Notice, Dkt. 132-2, at 4 (emphasis in original).)
There is a divide of authority on whether defense counsel’s contact information should be
included in an opt-in notice. On one hand, “[c]ourts in this Circuit have generally concluded that
such information is appropriate for inclusion in a notice of collective action.” Anjum v. J.C. Penny
Co., No. 13-CV-460 (RJD) (RER), 2015 WL 3603973, at *14 (E.D.N.Y. June 5, 2015) (quoting
Slamna v. API Rest. Corp., No. 12-CV-757 (RWS), 2013 WL 3340290, at *5 (S.D.N.Y. July 2,
2013)); accord Finnigan v. Metro. Transp. Auth., No. 19-CV-516 (PKC) (RER), 2020 WL
1493597, at *4 (E.D.N.Y. Mar. 26, 2020); Escano v. N & A Produce & Grocery Corp., No. 14CV-4239 (PAC), 2015 WL 1069384, at *2 (S.D.N.Y. Mar. 11, 2015); see also Cano v. Four M
Food Corp., No. 08-CV-3005 (JFB) (AKT), 2009 WL 5710143, at *11 (E.D.N.Y. Feb. 3, 2009)
(agreeing that “both counsel’s contact information should be included in the notice”); Gjurovich
v. Emmanuel’s Marketplace, Inc., 282 F. Supp. 2d 101, 108 (S.D.N.Y. 2003) (same). The basis
for this conclusion has not always been made clear, but one reason that has been given is that the
“information is necessary to afford employees the opportunity to communicate with defense
counsel.” Guo v. Tommy’s Sushi, Inc., No. 14-CV-3964 (PAE), 2014 WL 5314822, at *4
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(S.D.N.Y. Oct. 16, 2014) (citation and internal quotation marks omitted). On the other hand, some
courts have concluded that “it is appropriate that defendants’ counsel not be listed as contacts on
the form of notice” because between plaintiffs’ counsel and defendants’ counsel, “[o]nly plaintiffs’
counsel can potentially represent the individuals to whom the notice is mailed, and only they
should be privy to certain sensitive information that may otherwise fall within the attorney-client
privilege.” Chhab v. Darden Rests., Inc., No. 11-CV-8345 (NRB), 2013 WL 5308004, at *16
(S.D.N.Y. Sept. 20, 2013); see also Gurrieri v. County of Nassau, No. 16-CV-6983 (ADS) (SIL),
2019 WL 2233830, at *11 (E.D.N.Y. May 23, 2019) (“Inclusion of defense counsel’s contact
information is not required to render an FLSA notice fair, and is likely to create confusion
rendering distribution or collection of consent to join forms less effective.” (citing Chhab, 2013
WL 5308004, at *16)); Arciello v. County of Nassau, No. 16-CV-3974 (ADS) (SIL), 2017 WL
4998074, at *7 (E.D.N.Y. Oct. 30, 2017) (same); Cabrera, 2017 WL 4326511, at *8 (same).
In this case, the inclusion of defense counsel’s contact information appears unlikely to
create confusion, render notice less effective, or implicate concerns of attorney-client privilege,
given that it would be placed in a section titled “What Happens If I Do Not Join?” and after an
explicit warning to employees—in bolded italics—not to contact defense counsel if they decide to
join the lawsuit. Cf. Agerbrink v. Model Serv. LLC, 2016 WL 406385, at *6 (S.D.N.Y Feb. 2,
2016) (holding that because it was inappropriate for defendant to suggest that potential plaintiffs
contact defense counsel with questions about the litigation, defense counsel’s contact information
had to be moved to a subsection titled “What is [Defendant’s] Position”); Whitehorn v. Wolfgang’s
Steakhouse, Inc., 767 F. Supp. 2d 445, 451 (S.D.N.Y. 2011) (allowing the inclusion of defense
counsel’s contact information, but under a separate heading of “Attorneys for Defendants,” rather
than a section titled “Further Information,” so as “to avoid unnecessary confusion”). Therefore,

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the Court approves the inclusion of defense counsel’s contact information in the specific location
and manner proposed by Target. (See Target’s Notice, Dkt. 132-2, at 4.)
IV.

Informing Opt-in Plaintiffs of Right to Choose Own Counsel
Target also asks that the Notice include language “making clear” that opt-in plaintiffs may

choose their own counsel if they decide to participate in the lawsuit. (Target Br., Dkt. 132, at 3.)
But Plaintiff’s Proposed Notice already makes it clear that opt-in plaintiffs may choose their own
counsel. (See Pls.’ Notice, Dkt. 131-1, at 3 (“You may also join this lawsuit by hiring another
attorney of your own choosing at your own expense. If you do so, your attorney must complete
and return the Consent to Join form on your behalf on or before [60 days from the mailing].”).)
Therefore, the Court denies Target’s request to add additional language regarding the right of optin plaintiffs to choose their own counsel as unnecessary.
The Court, however, finds it confusing that Plaintiffs’ Proposed Notice instructs opt-in
plaintiffs who choose their own attorney to have counsel “complete and return the Consent to Join
form on [their] behalf on or before [60 days from the mailing]” (id. (emphasis added)), because
that form states, “By signing and returning this consent form, I designate [Plaintiffs’ counsel] to
represent me in this case” (id. at 5). Therefore, to minimize confusion, the Court directs that the
phrase “the Consent to Join form” be changed to “a consent to join form.”
Similarly, the Court finds it confusing that after informing opt-in plaintiffs of their right to
choose their own counsel, the very next section of Plaintiffs’ Proposed Notice—entitled “How Do
I Join?”—states, “If you want to participate in this lawsuit, it is extremely important that you read,
sign, and return the Consent to Join form by [60 days from the date of mailing].” (Id. at 3 (emphasis
added).) Accordingly, the Court modifies that sentence to say, “If you want to participate in this
lawsuit, it is extremely important that you read, sign, and return the Consent to Join form by [60

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days from the date of mailing] or, if you decide to hire your own attorney, have your attorney
return a consent to join form on your behalf by [60 days from the date of mailing].”
V.

Personal Contact Information of Collective Members
The final area of disagreement between the parties is whether, as part of the notice process,

Defendants must provide Plaintiffs’ counsel the personal contact information—including name,
mailing address, telephone, and email—for all members of the collective. (See Target Br., Dkt.
132, at 2; Pls. Br., Dkt. 134, at 3.) It appears the parties have agreed to use a third-party notice
administrator to handle the notification and consent-return process. (Target Br., Dkt. 132, at 2.)
Target argues that only the third-party administrator needs the personal contact information of
collective members to effectuate notice. (Id.) Plaintiffs argue that courts routinely require
defendants in FLSA collective actions to provide contact information of the sort Plaintiffs are now
requesting, even where a third-party administrator handles the notice process. (Pls. Br., Dkt. 134,
at 3.) Previously, Plaintiffs requested that Target be ordered “to produce a computer-readable list
of the names, last known mailing addresses, last known telephone numbers, last known email
addresses, dates of work, and work locations for all Collective Members, and the Social Security
numbers of those Collective Members whose notices are returned undeliverable.” Jibowu, 2020
WL 5820957, at *28 (quoting Dkt. 79-1, at 22). The Court found such a request to be “overbroad”
and directed Plaintiffs “to modify the requested contact information so as not to include last known
mailing addresses or the social security numbers of prospective plaintiffs whose notices are
returned as undeliverable.” Id.
Although Plaintiffs are correct that “[i]t is typically appropriate for courts in FLSA
collective actions to order the discovery of contact information of potential opt-in plaintiffs,”
Gurrieri, 2019 WL 2233830, at *12, none of the cases cited by Plaintiffs support their assertion
that where the parties have agreed to use a third-party administrator to handle the notification and
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consent-return process, Plaintiffs’ counsel is entitled to the personal contact information of
potential plaintiffs, see id. (permitting plaintiffs to effectuate notice); Anyere v. Wells Fargo Co.,
No. 09-CV-2769, 2010 WL 1542180, at *4 (N.D. Ill. Apr. 12, 2010) (concluding that the use of a
third-party administrator was “not necessary” and allowing disclosure of contact information to
plaintiffs); Acevedo v. Ace Coffee Bar, Inc., 248 F.R.D. 550, 554–55 (N.D. Ill. 2008) (holding that
plaintiff’s need to effectuate notice to similarly situated employees outweighed the employees’
privacy rights).3 Given that the parties have agreed to use a third-party administrator to notify and
collect consent forms from collective members, Plaintiffs’ counsel does not need the contact
information of collective members to effectuate proper notice, and Plaintiffs provide no other
particular reason that their counsel needs the personal contact information of potential opt-in
members. Moreover, as Target points out, once an individual opts in to the collective, Plaintiffs’
counsel will receive that individual’s contact information. (Target Br., Dkt. 132, at 2.)
Lanqing Lin v. Everyday Beauty Amore Inc., No. 18-CV-729 (BMC), 2018 WL 6492741
(E.D.N.Y. Dec. 10, 2018), is instructive. In that case, the court granted the defendants’ “reasonable
request” to use—at their expense—a third party administrator to issue notice. 2018 WL 6492741,
at *8. The court accordingly ordered the defendants to produce to the third-party administrator
“the names, last known addresses, email addresses, and dates of employment” of all potential
collective members. Id. at *9.

3

One of the cases cited by Plaintiffs, Mason v. Lumber Liquidators, Inc., No. 17-CV-4780
(MKB) (RLM), 2019 WL 2088609 (E.D.N.Y. May 13, 2019), is ambiguous as to whether the
parties used a third-party administrator. The notice attached as an appendix to the court’s order
indicates that a third-party administrator handled the notice process. See 2019 WL 2088609, at
*17–22. But the court’s order itself, in directing production of certain personal information “to
plaintiffs,” authorized “plaintiffs to send notice” and directed that consent forms be returned to
plaintiffs’ counsel. Id. at *14–15. Given Mason’s actual reasoning and conclusions, that decision
does not support Plaintiffs’ assertion here.
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Therefore, in light of the parties’ agreement to use a third-party administrator to notify and
collect consent forms from collective members, Plaintiffs’ request for Defendants to provide
collective members’ personal contact information to Plaintiffs’ counsel is denied, but without
prejudice to a showing of necessity in the future. Subject to the Protective Order entered in this
case (see Dkt. 44), Target shall produce to the third-party administrator, in computer-readable and
searchable format, at least the names, last known email addresses, last known telephone numbers,
dates of work, and work locations for all collective members in this case. Moreover, to the extent
that the last known mailing addresses of collective members are known to Target and are necessary
“to make as many potential plaintiffs as possible aware of this action and their right to opt in,” the
Court amends its September 30 Order and directs Target to produce such mailing addresses to the
third-party administrator. See Jibowu, 2020 WL 5820957, at *25 (“The Court understands its
discretion to be guided by the goals of the notice: to make as many potential plaintiffs as possible
aware of this action and their right to opt in without devolving into a fishing expedition or imposing
undue burdens on the defendants.” (quoting Guzelgurgenli, 883 F. Supp. 2d at 356)); id. at *28
(“In regard to requests for names, last known addresses, telephone numbers (both home and
mobile), e-mail addresses, and date of employment, courts often grant this kind of request in
connection with a conditional certification of an FLSA collective action.” (quoting Puglisi v. TD
Bank, N.A., 998 F. Supp. 2d 95, 102 (E.D.N.Y. 2014))). For example, Target should at least
produce last known mailing addresses for collective members as to whom Target has no last known
email address.
Finally, to avoid confusion, the Court modifies section “V. How Do I Join?” of Plaintiffs’
Proposed Notice (Dkt. 131-1, at 3) as follows, to reflect the Court’s directions both in this section
and in the previous section, see supra, Section IV:

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Case 1:17-cv-03875-PKC-CLP Document 135 Filed 12/16/20 Page 14 of 15 PageID #: 35527

Enclosed is a Consent to Join form. If you want to participate in this lawsuit, it is
extremely important that you read, sign, and return the Consent to Join form by [60
days from the date of mailing] or, if you decide to hire your own attorney, have
your attorney return a consent to join form on your behalf by [60 days from the date
of mailing]. You may return the completed form by mail in the enclosed, postage
pre-paid envelope, by [60 days from the mailing].,
Name
Address
Telephone
Fax
Email Address
or you may fax it to the Notice Administrator at (___) ___-____ or e-mail it to the
Notice Administrator at ______@______.com, provided that it is sent by the
deadline. It may also be submitted via the Website at (WWW.xxxxxxxxxx.xxx)
If you have questions, you may contact counsel for plaintiffs at Tel: [phone]
or [phone] or the Notice Administrator (___) ___-____.
CONCLUSION
In conclusion, for the reasons discussed above:
(1) Plaintiffs’ Proposed Notice (Dkt. 131-1) should be amended to (a) identify ETLs more
specifically, (b) include defense counsel’s contact information, and (c) conform with the Court’s
line edits shown above.
(2) The six Target stores in California at which Plaintiff Isais allegedly worked from time
to time after June 28, 2014 shall be included in the Proposed Notice.
(3) Target’s requests to modify Plaintiffs’ description of the case and to add additional
language regarding the right of collective members to choose their own counsel are denied.
(4) Plaintiffs’ request for production of collective members’ personal contact information
to Plaintiffs’ counsel is denied, but without prejudice to a future showing of necessity.

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Case 1:17-cv-03875-PKC-CLP Document 135 Filed 12/16/20 Page 15 of 15 PageID #: 35528

(5) Target shall provide the third-party administrator with the personal contact information
of all collective members as described herein and notwithstanding the Court’s September 30, 2020
Order, which is amended to the extent that it is inconsistent with this Order.
Within seven (7) days of the date of this Order, the parties shall submit for the Court’s
approval a further Revised Proposed Notice and Consent to Join form that complies with the
directives herein.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: December 16, 2020
Brooklyn, New York

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