Ramirez et al v. Riverbay Corp.

Filing 85

MEMORANDUM OPINION AND ORDER 103917: The Court accepts the agreed-upon language of the notice, and accepts in part and rejects in part the defendants' proposed modifications to the notice. Accordingly, the defendants' proposed modification s to Sections 1, 10, and 13 advising plaintiffs of the right not to join the lawsuit are rejected. The proposed addition of the specific language quoted here is therefore accepted. Accordingly, the defendants proposed modification to Section 5 is r ejected. For precisely the reasons expressed in that Opinion, the defendants' proposed modification to Section 10 of the notice advising the plaintiffs of their right to pursue alternatives to litigation is rejected. This language has the prim ary effect of attempting to dissuade putative members of the collective from pursing possibly valid claims, and is therefore rejected. This is a transparent scare tactic that may deter plaintiffs with possibly valid claims from joining the lawsuit, and this proposal is therefore rejected. Accordingly, this proposed addition to the consent-to-join form is rejected. For the foregoing reasons, the language of the proposed notice that has been agreed upon by the parties is accepted, and the defendants' proposed modifications to the agreed-upon language are accepted in part and rejected in part, as indicated above. (Signed by Judge John G. Koeltl on 1/30/2014) (djc) Modified on 1/31/2014 (djc). Modified on 1/31/2014 (nt).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
───────────────────────────────────
ROSALY RAMIREZ, ET AL.,
Plaintiffs,

13 Civ. 2367 (JGK)

- against -

MEMORANDUM OPINION
AND ORDER

RIVERBAY CORP, ET AL.,
Defendants.
───────────────────────────────────
JOHN G. KOELTL, District Judge:
In an Opinion announced in open court on December 20, 2013,
the Court granted the plaintiffs’ motion for conditional
certification of a collective action pursuant to Section 216(b)
of the Fair Labor Standards Act.
59.)

(Dec. 20, 2013 Hr’g Tr. at

The Court directed the parties to meet and confer to

determine the language of the notice to be sent to putative
members of the collective, and to report back to the Court
within thirty days with their agreed-upon language and any
remaining points of disagreement.
57-58, 59.)

(Dec. 20, 2013 Hr’g Tr. at

In letters to the Court dated January 23, 2014 and

January 27, 2014, the parties have indicated that they have
agreed upon the content of the proposed notice, with the
exception of six remaining points of disagreement.

The Court

accepts the agreed-upon language of the notice, and accepts in

part and rejects in part the defendants’ proposed modifications
to the notice.
First, in Sections 1, 10, and 13 of the notice, the
defendants have proposed language advising putative members of
the collective that they are not obligated to join the
collective.

However, the language of the notice already clearly

indicates that would-be members of the collective are not
obligated to join the lawsuit, and these proposed modifications
can therefore serve no purpose other than to discourage
plaintiffs with valid claims from opting in to the collective.
(See Dec. 20, 2013 Hr’g Tr. at 55-56.)

Accordingly, the

defendants’ proposed modifications to Sections 1, 10, and 13
advising plaintiffs of the right not to join the lawsuit are
rejected.
Second, the defendants have proposed an admonishment in
Section 1 of the notice that “the Court takes no position as to
whether an employee should or should not join the case.”

This

is an accurate statement of the Court’s position, and the
language will not have any undue influence on a would-be
plaintiff’s decision to join the lawsuit.

The proposed addition

of the specific language quoted here is therefore accepted.

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Third, in Section 5 of the notice, the defendants have
proposed advising that the defendants reserve their right to
“seek a judgment against any person joining this lawsuit as a
Plaintiff to pay for any attorneys’ fees and costs the
Defendants incur in this lawsuit.”

This proposal ignores the

Court’s ruling in its December 20 Opinion that the notice need
not warn would-be plaintiffs of the remote possibility that they
could be liable for costs and attorneys’ fees.
2013 Hr’g Tr. at 54-55.)

(See Dec. 20,

Accordingly, the defendants’ proposed

modification to Section 5 is rejected.
Fourth, in Section 10 of the notice, the defendants have
proposed advising potential plaintiffs of their right to contact
defense counsel, either directly or through a union
representative, to attempt to settle or arbitrate their claims
without litigation.

In its December 20 Opinion, the Court

rejected language proposed by the defendants advising the
plaintiffs of their right to settle.
Tr. at 55-56.)

(See Dec. 20, 2013 Hr’g

For precisely the reasons expressed in that

Opinion, the defendants’ proposed modification to Section 10 of
the notice advising the plaintiffs of their right to pursue
alternatives to litigation is rejected.
Fifth, in Section 11 of the notice, the defendants have
proposed advising potential plaintiffs that “in the event of a
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settlement or judgment in favor of the Plaintiffs, some
Plaintiffs including the named Plaintiffs may authorize a
settlement where they receive more payment than you receive.”
There is no explanation why the payment of a valid fee to
plaintiffs who expend time in pursuing their claims should be
used to discourage other plaintiffs from joining the collective.
This language has the primary effect of attempting to dissuade
putative members of the collective from pursing possibly valid
claims, and is therefore rejected.
Sixth, the defendants have proposed that the consent-tojoin form at the end of the notice require the plaintiffs to
certify under penalty of perjury that they were subjected to one
or more of the alleged illegal wage and hour policies upon
opting in to the collective.

This is a transparent scare tactic

that may deter plaintiffs with possibly valid claims from
joining the lawsuit, and this proposal is therefore rejected.
The defendants have also proposed that the consent-to-join form
require the plaintiffs to list the specific dates on which they
were not paid overtime compensation, and the amounts by which
they were underpaid.

This addition imposes an unfair burden on

would-be plaintiffs, who may not have had the opportunity to
consult counsel and who have not had access to any of their
employer’s records regarding compensation.
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Certification at

this stage is conditional and can be revisited after more
substantial discovery has been conducted.

Accordingly, this

proposed addition to the consent-to-join form is rejected.
For the foregoing reasons, the language of the proposed
notice that has been agreed upon by the parties is accepted, and
the defendants’ proposed modifications to the agreed-upon
language are accepted in part and rejected in part, as indicated
above.
SO ORDERED.
Dated:

New York, New York
January 30, 2014

______________/s/_____________
John G. Koeltl
United States District Judge

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