Martin et al v. Assurance Wireless, LLC et al
OPINION & ORDER: For the foregoing reasons, the Court grants plaintiffs' motion for conditional certification of a collective consisting of all Wallace Morgan employees who gathered applications for enrollment in the Lifeline Program throug h Assurance Wireless at any point during the three years preceding the issuance of a Court-approved Notice. However, the Court denies plaintiffs' motions for conditional certification of a broader collective, defined to include either all Age nts nationwide or all those employed by Credico. Defense counsel is directed to, within 10 days from the entry of this Order, produce to plaintiffs' counsel the names, mailing addresses, telephone numbers, email addresses, and dates of emp loyment of all putative class members. Plaintiffs' counsel is directed to provide defense counsel, by January 8, 2016, a revised Notice, consistent with this Order. Defense counsel, in turn, is directed to notify plaintiffs' counsel, by January 13, 2015, of any remaining objections to the Notice. Plaintiffs' counsel shall, by January 15, 2016, submit a revised, agreed-upon, Notice to the Court. Finally, plaintiffs' counsel shall distribute the Notice to putative class m embers within five days of the Court's approval of the revised Notice, and shall distribute the Reminder Notice 15 days before the close of the opt-in period. The Clerk of Court is respectfully directed to terminate the motion pending at Dkt. 52. (As further set forth in this Order) (Signed by Judge Paul A. Engelmayer on 1/4/2016) (kl)
For the reasons that follow, the Court (1) denies the motion for conditional certification
of a nationwide class, but conditionally certifies a collective limited to employees of Wallace
Morgan in New York City; (2) approves court-facilitated notice to the approved collective by
means of first-class mail, email, and text message; and (3) grants in part and denies in part
plaintiffs’ motion for discovery of the contact information of the members of this smaller
The Lifeline Program was founded in 1985 as part of the Universal Service Fund, a
system of telecommunications subsidies and fees overseen by the Federal Communications
Commission and designed to promote universal access to telecommunications services in the
United States. Prakash Decl., Ex. 2, at 1; id., Ex. 3, at 1–2. The program provides “discount[ed]
phone service for qualifying low-income consumers.” Id., Ex. 2, at 1. Designated
telecommunications carriers may provide Lifeline services to eligible consumers in exchange for
These facts are drawn from the First Amended Complaint, Dkt. 48 (“FAC”); the declaration
submitted by plaintiffs’ counsel, Dkt. 54 (“Prakash Decl.”), and accompanying exhibits; and the
declarations filed by Martin, Singleton, and eight opt-in plaintiffs in support of the motion for
conditional certification, Dkt. 55 (“Martin Decl.”); Dkt. 56 (“Singleton Decl.”); Dkt. 57
(“Armstrong Decl.”); Dkt. 58 (“Arroyo Decl.”); Dkt. 59 (“Cornaggia Decl.”); Dkt. 60 (“Crowe
Decl.”); Dkt. 61 (“Gavidia Decl.”); Dkt. 62 (“Kates Decl.”); Dkt. 63 (“Pandy Decl.”); Dkt. 64
(“Piper Decl.”). The Court also refers to a number of Sprint-issued documents, submitted as
attachments to a declaration by Sprint’s counsel, which are cited and relied on by plaintiffs in
their reply brief. Dkt. 71 (“Eichberger Decl.”), Exs. A–L. At the conditional certification stage,
the Court may not “resolve factual disputes” or “make credibility determinations.” Costello v.
Kohl’s Ill., Inc., No. 13 Civ. 1359 (GHW), 2014 WL 4377931, at *7 (S.D.N.Y. Sept. 4, 2014)
(quoting Lynch v. United Servs. Auto. Ass’n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007)) (internal
quotation marks omitted). Accordingly, in resolving this motion, the Court assumes all nonconclusory facts alleged by plaintiffs to be true.
subsidies, which the carriers are required to pass through to the consumer. See 47 C.F.R. §§
Sprint Corporation is a telecommunications company with a brand, Assurance Wireless,
used solely in connection with wireless Lifeline services. Prakash Decl., Ex. 7, at 2. Defendant
Sprint is the management company for a number of Sprint Corporation’s subsidiaries, including
Virgin Mobil, which administers the Assurance Wireless brand. FAC ¶¶ 41–44. Assurance
Wireless’s Lifeline service is currently offered in at least 40 states. Prakash Decl, Ex. 6, at 1–2;
FAC, Ex. E, at 3.
Sprint does not itself engage in retail distribution of the Assurance Wireless brand.
Rather, it relies on “grassroots outreach and marketing activities” to solicit potential customers.
Prakash Decl., Ex. 7, at 2; see FAC ¶¶ 49, 51. For this purpose, Sprint arranges for the use of
workers (“Agents”) whose primary duty is to gather applications from consumers for possible
enrollment in the Lifeline Program. FAC ¶ 63.2
Sprint retains the Agents through intermediary companies (“Sprint Partners”) across the
country. Id. ¶ 53. These include Wallace Morgan, a corporation headquartered in New York
City. Id. ¶ 26. Some Sprint Partners contract directly with Sprint, whereas others contract with
Sprint only through further intermediaries. Id. ¶ 54. Wallace Morgan, for instance, contracts
with Credico (USA) LLC (“Credico”), which, in turn, contracts with Sprint. Id.
According to plaintiffs, while such workers have varying titles, including “Account Executive,”
“Corporate Trainer,” “Sales Associate,” “Sales Representative,” and “Entry Level Marketing
Trainer,” they are all tasked principally with engaging in consumer outreach. See Singleton
Decl. ¶¶ 4–6; Martin Decl. ¶¶ 4–6; Armstrong Decl. ¶¶ 4–6; Piper Decl. ¶¶ 4–6; Kates Decl. ¶¶
4–6; Cornaggia Decl. ¶¶ 4–6; Crowe Decl. ¶¶ 4–6; Pandy Decl. ¶¶ 4–6; Gavidia Decl. ¶¶ 8–9;
Arroyo Decl. ¶¶ 4, 5, 8. The Court here uses the term “Agents” to refer to all persons who have
this primary job duty.
Martin and Singleton worked for Wallace Morgan during spring 2015, first as “Account
Executives” and later as “Corporate Trainers.” FAC ¶¶ 6, 9, 64; Martin Decl. ¶¶ 2–4; Singleton
Decl. ¶¶ 2–4. Leticia Piper and Jasmin Armstrong, two plaintiffs who later opted into this
lawsuit, also worked for Wallace Morgan during that time, under the titles of “Sales Rep” and
“Team Leader” (Piper), and “Sales Associate” (Armstrong). Piper Decl. ¶¶ 2, 4; Armstrong
Decl. ¶¶ 2, 4. Six other opt-in plaintiffs allege that, at various points between November 2013
and June 2015, they were employed by other Sprint Partners. Aside from Wallace Morgan, the
five Sprint Partners identified in the plaintiffs’ declarations are: (1) On Point OC, located in
Orange, California, see Gavidia Decl. ¶ 2; (2) Signals United, located in Orange and Los
Angeles, California, see Gavidia Decl. ¶ 2; Pandy Decl. ¶ 2; (3) Looped In, located in San
Bernardino, California, see Gavidia Decl. ¶ 2; Arroyo Decl. ¶ 2; Cornaggia Decl. ¶ 2; (4) Red
Ten NYC, located in New York City, see Kates Decl. ¶ 2; and (5) Event Horizon Marketing,
located in Tampa, Florida, see Crowe Decl. ¶ 2.
Regardless of the identity of the Sprint Partner that hired her or the job title she held,3 all
plaintiff-declarants (“declarants”) make certain common factual allegations. Each attests that her
“primary job duty” was “collect[ing] applications from consumers who wanted to enroll in the
Lifeline Assistance Program through Assurance [Wireless].”4 Each attests that, although she was
Solely for ease of reference, the Court uses the pronoun “she” when referring to the declarants
Singleton Decl. ¶¶ 4–6; Martin Decl. ¶¶ 4–6; Armstrong Decl. ¶¶ 4–6; Piper Decl. ¶¶ 4–6;
Kates Decl. ¶¶ 4–6; Cornaggia Decl. ¶¶ 4–6; Crowe Decl. ¶¶ 4–6; Pandy Decl. ¶¶ 4–6; Gavidia
Decl. ¶¶ 4, 8, 9, 11, 13; Arroyo Decl. ¶¶ 4, 5, 8. Each declarant states that her sole responsibility
was to collect applications from consumers. Id. Each states that she did not have the authority to
sell anything, approve applications, or interact with consumers once their applications were
directly hired by a Sprint Partner, she perceived herself to be an employee of Assurance
Wireless.5 In their brief, plaintiffs explain that this perception on the part of each declarant was
based on the “great degree of control” that Assurance Wireless, through Sprint, exercised over
Agents. Pl. Br. 7. This control included (1) mandating training on Sprint’s Standard Operating
Procedures; (2) requiring Agents to “agree to abide by all the rules, regulations, and policies of
Assurance Wireless”; (3) issuing standard talking points and marketing materials for Agents to
use in their daily work; and (4) monitoring Agents’ outreach efforts by collecting each
application completed by consumers. Id. 7–8 (citing Prakash Decl., Ex. 10 (“Assurance Wireless
Standard Operating Procedures”); id., Ex. 11 (“Agent Acknowledgment Form”)). It is on this
basis that plaintiffs allege that Sprint and the respective Sprint Partners “jointly employed” the
declarants and all other Agents. Id. at 7; see FAC ¶ 63.
Each declarant claims that, notwithstanding her ostensible status as an employee, she was
classified as an independent contractor.6 As such, each claims, rather than being paid hourly
wages, she was paid a piece-work rate, specifically, a “flat rate of no more than $10” for each
application she secured that was accepted by Assurance Wireless.7 However, by each
declarant’s account, had she been recognized and treated as an employee, she would have been
Singleton Decl. ¶¶ 2–3; Martin Decl. ¶¶ 2–3; Armstrong Decl. ¶¶ 2–3; Piper Decl. ¶¶ 2–3;
Kates Decl. ¶¶ 2–3; Cornaggia Decl. ¶¶ 2–3; Crowe Decl. ¶¶ 2–3; Pandy Decl. ¶¶ 2–3; Gavidia
Decl. ¶¶ 2–3; Arroyo Decl. ¶¶ 2–3.
Singleton Decl. ¶ 13; Martin Decl. ¶ 13; Armstrong Decl. ¶ 12; Piper Decl. ¶ 13; Kates Decl.
¶ 13; Cornaggia Decl. ¶ 13; Crowe Decl. ¶ 13; Pandy Decl. ¶ 13; Gavidia Decl. ¶ 18; Arroyo
Decl. ¶ 15.
Singleton Decl. ¶¶ 9, 10; Martin Decl. ¶¶ 9, 10; Armstrong Decl. ¶¶ 9, 10; Piper Decl. ¶¶ 9, 10;
Kates Decl. ¶¶ 9, 10; Cornaggia Decl. ¶¶ 9, 10; Crowe Decl. ¶¶ 9, 10; Pandy Decl. ¶¶ 9, 10;
Gavidia Decl. ¶¶ 15, 16; Arroyo Decl. ¶¶ 11, 12.
owed significant statutory minimum wages based on her hours. That is because each declarant
claims she was required to attend mandatory morning meetings, and to “work long days, starting
early in the morning and ending after the close of business,” at which point she was required to
report back to the office.8 In light of these long hours, each declarant claims, her pay in certain
weeks fell short of the required minimum wage.9 Further, each alleges, because her hours
regularly exceeded 40 hours in a week, she was entitled to—but did not receive—overtime pay.10
Finally, each declarant alleges that she observed—during morning meetings and work in the
field—that other Agents working for the same Sprint Partner had the “same job duties” and were
“paid in the same manner” as she.11
Specifically as to Martin and Singleton, the FAC alleges that each worked between 8 a.m.
and 7 p.m., five days per week, for a total of 55 hours, when classified as an Account Executive,
and between 7:30 a.m. and 7:30 p.m., six days per week, for a total of 72 hours, when classified
as a Corporate Trainer. FAC ¶ 97. By limiting compensation to a flat rate of $10 per approved
application, Sprint and Wallace Morgan “routinely” caused Martin and Singleton to work for less
Singleton Decl. ¶¶ 11, 16, 19; Martin Decl. ¶¶ 11, 16, 19; Armstrong Decl. ¶¶ 11, 14, 17; Piper
Decl. ¶¶ 11, 15, 17; Kates Decl. ¶¶ 11, 16, 19; Cornaggia Decl. ¶¶ 11, 16, 19; Crowe Decl. ¶¶ 11,
16, 19; Pandy Decl. ¶¶ 11, 16, 19; Gavidia Decl. ¶¶ 17, 21, 24; Arroyo Decl. ¶¶ 13, 18, 22.
Singleton Decl. ¶ 11; Martin Decl. ¶ 11; Armstrong Decl. ¶ 11; Piper Decl. ¶ 11; Kates Decl.
¶ 11; Cornaggia Decl. ¶ 11; Crowe Decl. ¶ 11; Pandy Decl. ¶ 11. Two opt-in plaintiffs allege
only that “it is possible” that they did not make at least the minimum wage of $7.25 per hour.
Arroyo Decl. ¶ 13; Gavidia Decl. ¶ 17.
Singleton Decl. ¶ 12; Martin Decl. ¶ 12; Piper Decl. ¶ 12; Kates Decl. ¶ 12; Cornaggia Decl.
¶ 12; Crowe Decl. ¶ 12; Gavidia Decl. ¶ 12; Pandy Decl. ¶ 12; Arroyo Decl. ¶14. One opt-in
plaintiff does not mention overtime payments in his declaration. See Gavidia Decl.
Singleton Decl. ¶ 21; Martin Decl. ¶ 22; Armstrong Decl. ¶ 19; Piper Decl. ¶ 19; Kates Decl.
¶ 22; Cornaggia Decl. ¶ 21; Crowe Decl. ¶ 21; Gavidia Decl. ¶ 26; Pandy Decl. 22; Arroyo Decl.
than the minimum wage, and to work more than 40 hours per week without overtime pay. Id.
¶¶ 104, 119–21. The FAC identifies one week in which Martin worked approximately 55 hours
and was paid $180—which amounts to $3.27 per hour—and no overtime compensation. Id. ¶
On July 7, 2015, plaintiffs filed the original complaint, on behalf of themselves and other
similarly situated employees, against Wallace Morgan and Assurance Wireless, LLC, alleging
that these defendants failed to pay minimum wage and overtime compensation, in violation of
the FLSA and NYLL. Dkt. 1. On September 1, 2015, and September 14, 2015, respectively,
Wallace Morgan and Assurance Wireless, LLC each filed an answer. Dkts. 31, 35.
On October 13, 2015, plaintiffs amended the complaint to replace Assurance Wireless,
LLC with Sprint as a defendant. FAC. On October 27, 2015, Wallace Morgan and Sprint each
filed an answer. Dkts. 66, 67. Since plaintiffs initiated this lawsuit, 22 additional putative
collective members have filed notices of consent to join this action. Dkts. 17, 26, 27, 33, 36, 37,
46, 47, 49–51, 65, 68, 69, 76, 79, 80–85.
On October 23, 2015, plaintiffs filed a motion for conditional certification pursuant to 29
U.S.C. § 216(b), Dkt. 52, and a memorandum of law in support, Dkt. 53 (“Pl. Br.”). That day,
plaintiffs’ counsel submitted a declaration in support of conditional certification, Prakash Decl.,
as did the named plaintiffs and eight opt-in plaintiffs. Dkts. 55–64. On November 13, 2015,
Wallace Morgan and Sprint filed briefs in opposition. Dkt. 70 (“Sprint Br.”); Dkt. 73 (“WM
Br.”). Sprint also filed a declaration by its counsel, Eichberger Decl., and a Sprint Manager of
Program Managers, Dkt. 72 (“Buongiovanni Decl.”). On November 19, 2015, plaintiffs replied.
Dkt. 77 (“Pl. Reply Br.”).
Applicable Legal Standards
The FLSA provides that an action may be maintained against an employer “by any one or
more employees for and on behalf of himself or themselves and other employees similarly
situated.” 29 U.S.C. § 216(b). “Although they are not required to do so by FLSA, district courts
‘have discretion, in appropriate cases, to implement [§ 216(b)] . . . by facilitating notice to
potential plaintiffs’ of the pendency of the action and of their opportunity to opt-in as represented
plaintiffs.” Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010) (quoting Hoffmann-La
Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989)).12
“In determining whether to exercise this discretion . . . the district courts of this Circuit
appear to have coalesced around a two-step method,” which the Second Circuit has endorsed as
“sensible.” Id. at 554–55; see, e.g., Romero v. H.B. Auto. Grp., Inc., No. 11 Civ. 386 (CM),
2012 WL 1514810, at *8 (S.D.N.Y. May 1, 2012); Damassia v. Duane Reade, Inc., No. 04 Civ.
8819 (GEL), 2006 WL 2853971, at *3 (S.D.N.Y. Oct. 5, 2006); Hoffmann v. Sbarro, Inc., 982 F.
Supp. 249, 261 (S.D.N.Y. 1997).
“The first step involves the court making an initial determination to send notice to
potential opt-in plaintiffs who may be ‘similarly situated’ to the named plaintiffs with respect to
whether a FLSA violation has occurred.” Myers, 624 F.3d at 555. “The court may send this
notice after plaintiffs make a ‘modest factual showing’ that they and potential opt-in plaintiffs
‘together were victims of a common policy or plan that violated the law.’” Id. (quoting Sbarro,
982 F. Supp. at 261). Although “[t]he ‘modest factual showing’ cannot be satisfied simply by
Hoffmann-La Roche involved the parallel provision of the Age Discrimination in Employment
Act, which incorporated the FLSA’s enforcement provisions, including § 216(b). “Hoffmann-La
Roche’s interpretation of § 216(b) . . . binds us in FLSA cases as well.” Myers, 624 F.3d at 554
‘unsupported assertions,’ . . . it should remain a low standard of proof because the purpose of this
first stage is merely to determine whether ‘similarly situated’ plaintiffs do in fact exist.” Id.
(quoting Dybach v. State of Fla. Dep’t of Corr., 942 F.2d 1562, 1567 (11th Cir. 1991)); accord
Damassia, 2006 WL 2853971, at *3 (“[A] plaintiff’s burden at this preliminary stage is
‘minimal.’”) (collecting cases); Sbarro, 982 F. Supp. at 261 (“The burden on plaintiffs is not a
stringent one.”). “A court need not evaluate the underlying merits of a plaintiff’s claims to
determine whether the plaintiff has made the minimal showing necessary for court-authorized
notice.” Damassia, 2006 WL 2853971, at *3; accord Gjurovich v. Emmanuel’s Marketplace,
Inc., 282 F. Supp. 2d 101, 105 (S.D.N.Y. 2003); Sbarro, 982 F. Supp. at 262.
“At the second stage, the district court will, on a fuller record, determine whether a socalled ‘collective action’ may go forward by determining whether the plaintiffs who have opted
in are in fact ‘similarly situated’ to the named plaintiffs. The action may be ‘de-certified’ if the
record reveals that they are not, and the opt-in plaintiffs’ claims may be dismissed without
prejudice.” Myers, 624 F.3d at 555.
Plaintiffs move for conditional certification of the following collective:
[A]ll person [sic] who worked as account executives, corporate trainers, sales
reps, or similar titles and whose job was to gather applications for enrollment in
the Lifeline Program through Assurance Wireless at any time three years prior to
the filing of the initial complaint in this action through the date the collective list
Dkt. 52, at 1.
The Court’s analysis of plaintiffs’ motion proceeds as follows: The Court first inquires
whether plaintiffs have adequately alleged a nationwide policy or practice of Sprint’s that is
responsible for the alleged FLSA violations, such that all Agents, regardless of which Sprint
Partner hired them, could be included in the conditionally certified collective. Finding that
plaintiffs have failed to make such a showing, the Court next considers whether the facts alleged
are sufficient to support conditional certification of a more narrowly tailored class. The Court
concludes that, on the record before it, conditional certification of a class limited to Agents
employed by Wallace Morgan in New York City, but not other Credico subcontractors, is
appropriate at this time.
Conditional Certification of a Nationwide Class of All Sprint Agents
Plaintiffs seek conditional certification of a class of “all person[s]” across the country
whose job was to gather Lifeline applications for Assurance Wireless—regardless of which
Sprint Partner directly employed them. Dkt. 52, at 1. To justify such conditional certification,
plaintiffs must show a “factual nexus” that binds all Agents together as victims of a common
unlawful practice. Sbarro, 982 F. Supp. at 261; see Vasquez v. Vitamin Shoppe Indus. Inc., No.
10 Civ. 8820 (LTS), 2011 WL 2693712, at *3 (S.D.N.Y. July 11, 2011) (“As Plaintiff proposes a
nationwide class, he bears the burden of showing a nationwide policy or plan pursuant to which
[plaintiffs are subjected to FLSA violations].”). For the reasons that follow, plaintiffs have failed
to do so.
Plaintiffs have not demonstrated an official Sprint policy giving
rise to the allegedly unlawful employment practices.
To support the claim that all members of the putative collective are similarly situated,
plaintiffs point to several Sprint policies, which Sprint acknowledges bind all Sprint Partners
nationwide. Pl. Br. 7–10; Pl. Reply Br. 5–7; see Sprint Br. 5.
For example, Sprint’s Assurance Wireless Outreach Agency Program Standard Operating
Procedures (“SOPs”) impose various requirements on Sprint Partners. These include that (1) all
Agents be trained and certified before conducting Assurance Wireless marketing; (2) all Agents
deliver a “pitch” that conveys accurate information and courteous customer service; (3) all
Agents wear professional attire in the field, including Assurance Wireless badges and t-shirts; (4)
Sprint Partners obtain approval before using third parties to carry out the Assurance Wireless
service; (5) Sprint Partners have at least one Account Manager dedicated to overseeing
Assurance Wireless marketing; (6) Sprint Partners conduct events only in approved locations,
and ensure that events are “staffed appropriately to meet/exceed productivity objectives”; and (7)
Sprint Partners submit to audits in which Sprint employees pose as customers to ensure that
Agents are complying with the SOPs and federal requirements. Pl. Reply Br. 5–7 (citing
Eichberger Decl., Ex. G (“SOPs”)).
Sprint further requires of Sprint Partners that, before an Agent can engage in Assurance
Wireless marketing, she must submit to a background check and complete an online Agent
Acknowledgment Form (“AAF”) certifying that she has been trained as to, and has agreed to
abide by, all rules set forth in the SOPs. Pl. Br. 8 (citing Prakash Decl., Ex. 11 (“AAF”); SOPs §
Finally, plaintiffs point to the “Master Agreement” between Sprint and Credico, which
plaintiffs claim is “a template” for all contracts between Sprint and the Sprint Partners. This
agreement: (1) limits Agents’ ability to work for Sprint’s competitors; (2) gives Sprint discretion
over Agents’ continued marketing of Assurance Wireless; (3) allows Credico to subcontract only
if granted permission by Sprint; (4) states that Sprint may pay Credico additional fees for staffing
of Sprint-requested events; (5) identifies the locations where Credico may operate; and (6)
provides for bonus payments to Agents who meet certain qualifications. Pl. Reply. Br. 6 (citing
Eichberger Decl., Ex. A (“Sprint-Credico Contract”) ¶¶ 2–9; id., Ex. D (“Sprint-Credico
Contract Amendment No. 3”) ¶ II(A)(2)(i)).
These policies do indeed satisfactorily establish, at least at this preliminary stage, some
common practices that Sprint mandates across Sprint Partners and that bear, inter alia, on the
activities of Agents. Critically, however, for purposes of determining the viability of a collective
for which conditional certification is sought, “the relevant practice that binds FLSA plaintiffs
together” must be “the one that is alleged to have violated the statute itself.” Guillen v.
Marshalls of MA, Inc. (Guillen II), No. 09 Civ. 9575 (LAP), 2012 WL 2588771, at *1 (S.D.N.Y.
July 2, 2012); see Myers, 624 F.3d at 555 (conditional class certification is appropriate only after
“plaintiffs make a modest factual showing that they and potential opt-in plaintiffs together were
victims of a common policy or plan that violated the law” (internal quotation marks and citation
omitted) (emphasis added)). Applying this principle, courts in this Circuit have held that the fact
of a common job description or a uniform training regimen does not, alone, make those persons
subject to it “similarly situated” under the FLSA. See, e.g., Khan v. Airport Mgmt. Servs., LLC,
No. 10 Civ. 7735 (NRB), 2011 WL 5597371, at *4 (S.D.N.Y. Nov. 16, 2011) (“[P]laintiff’s
reliance on the centralized job descriptions maintained by defendants is misplaced.”); Sprint
Nextel, 2009 WL 7311383, at *3 (denying conditional certification where, as to practices of
general application, plaintiff pointed only to a presumptively lawful official policy, and, in
alleging FLSA violations, relied solely upon her deposition testimony as to her own treatment).
Here, the Sprint documents on which plaintiffs rely are conspicuously silent as to how
Agents are to be classified and paid. Yet it is these practices, not the ones addressed in the
Sprint documents, that are the core determinants of whether Sprint choreographed nationwide
policies that violated the FLSA. To be sure, the SOPs do indirectly bear on Sprint Partners’
utilization of the Agents, insofar as they require that events be “staffed appropriately to
meet/exceed productivity objectives.” SOPs § 5(1)(e). But they do not require, even implicitly,
that any Agent work a specific or minimum number of hours (or events) per week. Nor do the
SOPs prescribe the compensation any Agent is to be paid, or how the Agent is to be classified
(e.g., as an employee or independent contractor).
Similarly, although the Sprint-Credico Contract provides that Sprint will pay Credico
between $16 and $35 for each approved Lifeline application, it is silent as to the wages and hours
of Agents. Sprint-Credico Contract ¶ 9(a); Eichberger Decl., Ex. F (“Sprint-Credico Contract
Amendment No. 5”) ¶ II(A)(1)(a).13 On the contrary, it expressly provides that Credico “has full
control over its own employee relations, and will exercise complete control over the hiring,
conduct, training, supervision, performance and termination of its employees.” Sprint-Credico
Contract ¶ 2(e)(ii). And of course, even if the Sprint-Credico Contract had dictated the
compensation and schedules of the Agents who worked for Credico, this would not evidence a
nationwide policy of Sprint, as opposed to one governing the subset of Sprint’s business
administered by Credico.14
An amendment to the Sprint-Credico Contract provides for a one-time $500 Agent Retention
Bonus paid to Credico for any Agent who meets certain qualifications. Sprint-Credico Contract
Amendment No. 3 ¶ II(A)(2)(i). But it does not contain any provisions regarding Agents’
This case thus is a far cry from those where nationwide conditional certification has been
granted based on evidence of a company’s “national policy” that itself gave rise to the alleged
FLSA violations. Compare Guttentag v. Ruby Tuesday, Inc., No. 12 Civ. 3041 (HB), 2013 WL
2602521, at *2 (S.D.N.Y. June 11, 2013) (certifying collective where defendant had nationwide
policy that was “at least . . . reticent to pay for overtime work by its employees, as well as a
centralized staffing and labor budget management system”); Flood v. Carlson Rest. Inc., No. 14
Civ. 2740 (AT), 2015 WL 260436, at *3 (S.D.N.Y. Jan. 20, 2015) (certifying collective where
plaintiffs presented evidence of defendants’ consolidated control over individual T.G.I. Friday’s
employees’ wages and schedules, including handbooks with information related to compensation
and time-keeping policies, and centralized human resources and time-keeping systems); and
In sum, although the documents on which plaintiffs rely show some ways in which all
Agents across the country are similarly treated at Sprint’s hand, they do not so establish with
regard to the employment conditions material to this lawsuit. Indeed, in light of the documents’
comprehensive regulation of Agents’ customer-facing conduct, their silence as to Agents’ pay
and hours arguably gives rise to the contrary inference—explicitly stated in the Sprint-Credico
Contract—that the Agents’ hours and pay arrangements were instead set by an entity below
Sprint and more proximate to the Agents (e.g., the Sprint Partner or an intermediary such as
Credico). The written policies which plaintiffs cite, silent as they are as to Agents’ wages, hours,
or employment classification, thus do not supply evidence of an unlawful policy that would
justify certification of a nationwide collective.
A Sprint-wide policy cannot be inferred from plaintiffs’
In contrast to the Sprint documents, the declarations submitted by Martin, Singleton, and
eight opt-in plaintiffs do allege employment practices that violate the FLSA. As noted above,
these declarants—who worked for Sprint Partners in parts of New York, Florida, and
California—allege that they: (1) were misclassified as independent contractors; (2) were paid a
flat rate of $10 per approved application, not based on their hours worked; (3) were required to
Zivali v. AT & T Mobility LLC, 646 F. Supp. 2d 658, 660 (S.D.N.Y. 2009) (certifying collective
where employees nationwide were subject to a specific timekeeping system that “systematically
failed to fully account for the hours worked by non-exempt employees”); with Brickey v.
Dolgencorp., Inc., 272 F.R.D. 344, 348 (W.D.N.Y. 2011) (“The Court declines to hold that
facially-lawful policies, which encourage store management to make productive use of
employees’ time or to report for work when scheduled, can form the equivalent of a ‘common
policy or plan that violate[s] the law,’ merely because they indirectly might encourage the
minimization of overtime.” (citation omitted)); and Eng–Hatcher v. Sprint Nextel Corp., No. 07
Civ. 7350 (BSJ), 2009 WL 7311383, at *3–4 (S.D.N.Y. Nov. 13, 2009) (denying certification of
proposed collective and class action where plaintiff alleged that legal reward policies to
maximize sales and minimize overtime “incentivized” managers to act illegally).
work long days; (4) regularly worked more than 40 hours in a week without overtime pay; and
(5) received pay that often fell short of minimum wage. They further allege that they observed
that their coworkers were treated similarly. On the basis of these common experiences, plaintiffs
ask the Court to infer a nationwide Sprint policy to foment unlawful practices.
This leap does not logically follow. Even assuming that Sprint directly employed each of
the eight declarants—i.e., that there were no intermediary organizations between Sprint and these
Agents—it is questionable whether such a numerically and geographically limited number of
declarations would suffice to permit the inference of a unitary practice across all states. See
Ahmed v. T.J. Maxx Corp., No. 10 Civ. 3609 (ADS), 2013 WL 2649544, at *14 (E.D.N.Y. June
8, 2013) (allegations from assistant store managers in New York, Connecticut, and Arkansas
were insufficient basis on which to infer “a factual nexus between the Plaintiffs and the
thousands of Assistant Store Managers working in more than 4,000 stores across nationwide
[sic]”). Indeed, courts in this Circuit have commonly rejected the notion that a plaintiff can meet
her burden for justifying nationwide certification merely by providing declarations of plaintiffs
from more than a single geographic area. Ahmed v. T.J. Maxx Corp., No. 10 Civ. 3609 (ADS),
2015 WL 2189959, at *10 (E.D.N.Y. May 11, 2015) (“[T]he fact that the Plaintiff presented
evidence from [Assistant Store Managers] in nine states, without more, does not, as the Plaintiff
suggests, show that the Defendants had a de facto illegal policy.”). As Judge Woods has
The existence of many or widespread plaintiffs is, at best, evidence from which an
inference might be drawn about the existence of a common illegal policy or plan.
The probity of drawing such an inference, however, will turn in part on the
number of plaintiffs from whom the Court has evidence compared to the size of
the pool of potential opt-in plaintiffs. It may also be affected by the commonality
of the substantive testimony or affirmations that the plaintiffs provide. While the
required factual showing for conditional certification is modest, the mere
existence of a certain number of plaintiffs, covering a sufficiently widespread
geographic area, should not be expected by itself to give rise to a legally sufficient
basis to find that plaintiffs are similarly situated across the nation.
Costello, 2014 WL 4377931, at *6.
Courts have been especially hesitant to grant conditional certification of a vast class
where structural considerations—such as a company’s stratified or decentralized structure or the
presence of intermediary entities between the company and the members of the putative
collective—cast doubt on the claim that uniform company policies governed workers across a
sprawling geographic area. See, e.g., Sprint Nextel, 2009 WL 7311383, at *3 (declining to
certify collective based on theory that individual store managers at Sprint locations nationwide
implemented de facto common policy of under-compensating workers for overtime); Hamadou
v. Hess Corp., 915 F. Supp. 2d 651, 667 (S.D.N.Y. 2013) (declining statewide certification
where “[n]othing in the record suggests that [the alleged FLSA violations] exist in other
territories, which are managed and supervised by different people”). That logic is persuasive
here, inasmuch as each declarant (and presumably each member of the putative collective) was
separated from Sprint by one intermediary (the Sprint Partner) if not more (as with the declarants
who worked for Wallace Morgan, which interacted with Sprint indirectly through Credico).
To be sure, plaintiffs are not required to submit evidence expressly implicating every
Sprint Partner nationwide. See Amador v. Morgan Stanley & Co. LLC, No. 11 Civ. 4326 (RJS),
2013 WL 494020, at *6 (S.D.N.Y. Feb. 7, 2013). But they must, at a minimum, furnish evidence
demonstrating that the declarants are a representative sample of the putative nationwide class.
See Guillen v. Marshalls of MA, Inc. (Guillen I), 750 F. Supp. 2d 469, 477 (S.D.N.Y. 2010)
(affidavits of five Assistant Store Managers from nine of the 820 Marshalls stores nationwide
was insufficient basis on which to conclude that unlawful policies were implemented at all
No such showing has been made here. The declarants collectively represent employees
from only six Sprint Partners, two of which (Wallace Morgan and Red Ten NYC) are
subcontractors of one intermediary (Credico),15 and three of which (Looped in, Signals United,
and On Point OC) appear to be subcontractors of another (Smart Circle).16 And while the parties
have not had an occasion to provide a complete list of Sprint Partners across the nation,17 every
indication is that this group is sizable in number.18
See FAC ¶ 54 (noting that Wallace Morgan is a Credico subcontractor); Sprint-Credico
Contract, at 19 (“Schedule 1”) (listing Red Ten NYC as a Credico subcontractor).
See Arroyo Decl. ¶ 7 (“On some Saturdays, our managers would hold meetings between
Assurance Wireless [Agents] from Looped In and people with similar jobs who worked for two
other companies: Signals United and On Point, OC. My belief was that these three companies
were all related to Smart Circle.”); Gavidia Decl. ¶ 5 (noting that his managers at Signals United
and Looped In had previously worked at On Point OC, and that he “believe[s] that all three . . .
managers reported to the head of Smart Circle . . . at all times.”). On the present record, it is not
clear whether the remaining Sprint Partner (Event Horizon Marketing) is also a subcontractor of
Credico, Smart Circle, or another intermediary, or whether it contracts with Sprint directly.
See Sprint Br. 9 (“Nor is there any representation that the . . . companies described as
employers in the declarations is a complete list. So there is no way to know how many other
companies were involved in determining wages and hours for the members of the proposed
nationwide collective, or whether the individuals who worked with those unnamed companies
had similar experiences.”).
Sprint markets Assurance Wireless in at least 40 states. See Prakash Decl, Ex. 6, at 1–2; FAC,
Ex. E, at 3. The FAC states that, apart from the six Sprint Partners represented by the named
plaintiffs and declarants, “[o]ther Sprint Partners include but are not limited to: Red Ten; Signals
United; Looped In; 2020 Marketing (which became Open Door Marketing); Cromex, Inc.; On
Point OC; Smart Circle; and Red Crown.” FAC ¶ 59 (emphasis added). In their declarations,
opt-in plaintiffs Arroyo and Gavidia allude to additional Sprint Partners in Ohio and Colorado to
which their former colleagues were sent to work. Arroyo Decl. ¶ 6; Gavidia Decl. ¶ 10.
Schedule 1 of the Sprint-Credico Contract reveals that Credico alone contracts with at least 15
subcontractors. Sprint-Credico Contract, at 19. And the omission from this contract of Wallace
Morgan and Cromex, Inc. (“Cromex”)—a Sprint Partner/Credico-subcontractor identified in the
FAC—reveals that this list is not exhaustive.
Moreover, plaintiffs have not come forward with any evidence that would situate the
decision to implement the wage-and-hour practices of which they complain above the level of
the declarants’ immediate employers or the intermediary companies with which some of these
employers contract. Cf. Brickey, 272 F.R.D. at 348 (“Although [p]laintiffs have offered some
evidence that certain Dolgencorp managers [maintained unlawful practices], plaintiffs have not
shown that such activity was widespread or common practice, or that the managers did so
because they were instructed, compelled, forced, or encouraged to do so by other [company]
policies.”). Plaintiffs do not, for instance, make any concrete factual allegations to the effect that
Agents employed by other Sprint Partners were subject to the same unlawful practices, or that
the wage, hour, and classification practices that they protest were imposed by, or derived from,
Sprint itself. 19 Compare Guillen I, 750 F. Supp. 2d at 477 (denying nationwide collective
certification where plaintiff “ha[d] no personal knowledge about how stores, other than those at
which he was an employee, operated”), with Costello, 2014 WL 4377931, at *5 (granting
conditional certification where plaintiff testified that she attended districtwide meetings
encompassing approximately 14 Kohl’s stores, where she was informed by employees of other
stores that they were subjected to similar FLSA violations). Plaintiffs’ unsworn claims in their
briefs that their experiences are shared by Agents nationwide, see Pl. Br. 15–16, are inadequate
to fill this void, and, in any event, “too conclusory to support certification of all [Agents] absent
any factual details” concerning the wage-and-hour policies of other Sprint Partners, or the basis
Martin and Singleton do allege that, based on the morning meetings they attended with Agents
employed by Cromex, they came to “believe that employees who worked for . . . Cromex also
performed the same job duties that [they did], were paid in the same manner as [they were], and
were subject to the same rules as [them].” Martin Decl. ¶ 22; Singleton Decl. ¶ 21. However,
because Wallace Morgan and Cromex are both Credico subcontractors, these observations do
not, without more, logically indicate a policy imposed at the Sprint level.
for this knowledge. Sharma v. Burberry Ltd., 52 F. Supp. 3d 443, 459 (E.D.N.Y. 2014)
(nationwide conditional certification not appropriate where, “[c]ontrary to Plaintiffs’ personal
knowledge as to the pay practices at the stores in which they worked, Plaintiffs’ assertions about
the pay practices at other stores across the country are conclusory and unsupported”).20
On this point, Xavier v. Belfor USA Group, Inc., 585 F. Supp. 2d 873 (E.D. La. 2008) is
illustrative. There, plaintiffs alleging overtime violations moved for conditional certification of a
class including all individuals who worked for a construction company, Belfor USA, performing
manual labor either directly or indirectly through various subcontractors throughout the nation.
Id. at 875. During the relevant time period, Belfor utilized 2,100 subcontractors at different job
sites across at least 44 states. Id. at 880. The district court held that the plaintiffs had failed to
establish that they were similarly situated to potential opt-in plaintiffs nationwide because they
had not shown that their “circumstances and experiences with the payroll practices of the specific
subcontractor were similar to the remaining workers who worked for [the other] 2,100 or so
subcontractors who contracted with Belfor.” Id. Rather, the court observed, “[t]here is simply
no evidence of a generally applicable policy or practice.” Id. So too, here. As in Xavier,
plaintiffs’ declarations fail to establish that plaintiffs are similarly situated to Agents who have
worked for the many other Sprint Partners across the country.
Sprint represents that individual Sprint Partners—not Sprint—control Agents’ workday and
compensation, and that such policies vary across Sprint Partners. Sprint Br. 6–8; Buongiovanni
Decl. ¶ 25. Indeed, Sprint represents, at least one Sprint Partner hires Agents as employees,
rather than as independent contractors. Sprint Br. 7; Buongiovanni Decl. ¶ 23. At this
preliminary stage, of course, the Court has no occasion to make any finding of fact on this issue,
see Lynch, 491 F. Supp. 2d at 368, and today’s ruling denying nationwide certification does not
rely on Sprint’s factual representations. The Court’s ruling is instead based on plaintiffs’ failure
to meet their burden of adducing adequate evidence of a nationwide practice giving rise to the
alleged FLSA violations.
The existence of an intermediary company does not, of course, preclude a finding of a
nationwide practice attributable to a common principal such as Sprint. One can readily imagine
a scenario in which a company with nationwide operations imposed a common policy as to
wages, hours, or employment classifications that bound the intermediaries proximate to the
affected workers. But, particularly given the sweep of the proposed nationwide collective here,
spanning workers in more than 40 states, solid evidence of such a policy, not conjecture, is
necessary. The Court will not simply assume that a practice of several subcontractors is common
to every other subcontractor with ties to the collective as plaintiffs have defined it. See Anjum v.
J.C. Penney Co., No. 13 Civ. 460 (RJD), 2015 WL 3603973, at *7 (E.D.N.Y. June 5, 2015) (bids
for nationwide conditional certification may require more evidentiary support than bids for
certification of more localized collectives).21 The need for some tangible proof of a nationwide
practice is particularly acute here, in light of the obvious alternative explanation, to wit, that the
relevant employment practices were authored by intermediaries below Sprint.22
The court in Xavier distinguished Lima v. Int’l Catastrophe Solutions, Inc., 493 F. Supp. 2d
793 (E.D. La. 2007), on which plaintiffs rely, see Pl. Reply Br. 4, on this ground. 585 F. Supp.
at 880 (Lima did not govern request for conditional certification of nationwide class because,
there, the court conditionally certified a collective limited to workers of “only two contractors
performing manual labor services directly or indirectly through a subcontractor in the Gulf Coast
area . . . for a limited period of time”). Plaintiffs’ reliance on Ondes v. Monsanto Co., No. 11
Civ. 197 (JAR), 2011 WL 6152858 (E.D. Mo. Dec. 12, 2011), is similarly misplaced, because,
there, while the defendant company employed nine staffing agencies to hire employees, the
plaintiff sought only to certify a class that consisted of employees at one Missouri location. Id.
at *4, *5 n.3.
Nicholson v. UTi Worldwide, Inc., No. 09 Civ. 722 (JPG), 2011 WL 250563 (S.D. Ill. Jan. 26,
2011), on which plaintiffs rely, is for this reason—and others—distinct. There, although some
employees were hired by temporary staffing agencies, not by UTi directly, all worked onsite at
UTi’s forklift facilities under the supervision of UTi supervisors. Id. at *4–5. There was thus a
direct nexus between UTi and the members of the putative collective that is lacking here, where
the available evidence indicates that Agents work in the field and report only to supervisors
employed by their Sprint Partners, and that the Sprint Partners maintain their own offices and
Under these circumstances, plaintiffs’ declarations fail to adequately show that the
policies they protest are traceable in some way to the one company (Sprint) that would unite the
existing plaintiffs, including opt-ins, and the balance of the nationwide putative class. Because
“there may be vast differences in the practices of individual [Sprint Partners] across the country,”
Guillen I, 750 F. Supp. 2d at 478, the eight declarants’ descriptions of their personal experiences
are “too thin a reed on which to rest a nationwide certification,” Vasquez, 2011 WL 2693712, at
*3; accord Guillen II, 2012 WL 2588771, at *1 (“Plaintiff’s argument for conditional nationwide
class certification is fatally flawed insofar as it would require this Court to ignore Plaintiff’s
inability to point to a factual nexus between his own wage and hour claim and the claims of
thousands of other Marshalls Assistant Store Managers . . . across 830 Marshalls stores across
the country.”); Laroque v. Domino’s Pizza, LLC, 557 F. Supp. 2d 346, 356 (E.D.N.Y. 2008).23
Plaintiffs cite a few cases in which courts have applied a more lenient standard that is
apparently satisfied by a plaintiff’s “bare allegations” of a nationwide scheme. See, e.g.,
Edwards v. Multiband Corp., No. 10 Civ. 2826 (MJD), 2011 WL 117232, at *4 (D. Minn. Jan.
13, 2011) (finding “colorable basis” standard satisfied by plaintiff’s unsupported allegations that
unlawful wage-and-hour policies applied uniformly across subcontractors); Lang v. DirecTV,
Inc., No. 10 Civ. 1085 (NJB), 2011 WL 6934607, at *7–8 (E.D. La. Dec. 30, 2011) (certifying
nationwide class based on based on plaintiffs’ unsubstantiated allegations that DirecTV enforced
national scheduling and compensation policies, “affecting all technicians, no matter for which
[subcontractor] they worked for”). However, the weight of case law in this Circuit requires a
concrete, i.e., non-conclusory, showing. See Sharma, 52 F. Supp. 3d at 459 (nationwide
certification not warranted where “plaintiffs’ assertions about the pay practices at other stores
across the country are conclusory and unsupported”); She Jian Guo v. Tommy’s Sushi Inc., No.
14 Civ. 3946 (PAE), 2014 WL 5314822, at *3 (S.D.N.Y. Oct. 16, 2014), reconsideration denied,
2014 WL 7373460 (S.D.N.Y. Dec. 29, 2014) (“[V]ague, conclusory, and unsupported assertions
do not suffice. . . . Although plaintiffs’ burden at this stage is modest, it is not non-existent, and
certification is not automatic.” (internal quotation marks and citations omitted)); Morales v.
Plantworks, Inc., No. 05 Civ. 2349 (DC), 2006 WL 278154, at *3 (S.D.N.Y. Feb. 2, 2006)
(“[P]laintiffs have offered only a conclusory allegation in their complaint; they have offered
nothing of evidentiary value.”). And while the Lang court granted conditional certification on
the premise that the defendant company could later seek decertification if certification proved
unjustified, see 2011 WL 6934607, at *7, here, “[i]t would be a waste of the Court’s and the
litigants’ time and resources to notify a large and diverse class only to later determine that the
The Court holds that neither Sprint’s official documents nor plaintiffs’ declarations,
whether viewed separately or together, supply credible evidence of a unitary Sprint policy
governing the hours, wages, or employment classifications of the many Agents who constitute
the proposed collective. Plaintiffs’ bid for collective certification of a class of all persons
nationwide who gathered applications for Assurance Wireless is, therefore, denied.24
Conditional Certification of a Credico-Wide Class
For the first time in their reply brief, plaintiffs alternatively request certification of a class
limited to Agents who, in the last three years, marketed Assurance Wireless’s Lifeline Program
through Credico, either directly or through one of its subcontractors. Pl. Reply Br. 9. In support,
plaintiffs point to the Sprint-Credico Contract, Credico’s “Daily Checklist,” and the declarations
of five plaintiffs who worked for Credico subcontractors, as purported evidence that “Agents
who worked through Credico are similarly situated.” Id. For much the same reasons reviewed
above, this evidence is insufficient to sustain such certification.
First, as noted, the Sprint-Credico Contract does not contain any provisions regarding the
hours or general compensation of individual Agents. The Daily Checklist is similarly silent on
matter should not proceed as a collective action because the class members are not similarly
situated.” Guillen v. Marshalls of MA, Inc., 841 F. Supp. 2d 797, 803 (S.D.N.Y. 2012), adopted,
Guillen II, 2012 WL 2588771 (internal quotation marks and citation omitted).
This holding is not a merits determination. Plaintiffs, of course, remain at liberty to attempt to
establish that Sprint, based on a joint-employer theory, is accountable for any FLSA violations
that are found to have occurred. See Lynch, 491 F. Supp. 2d at 368; Young v. Cooper Cameron
Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005) (focus at certification stage “is not on whether there
has been an actual violation of law but rather on whether the proposed plaintiffs are similarly
situated . . . with respect to their allegations that the law has been violated” (internal quotation
any employment conditions that might implicate the FLSA. See Eichberger Decl., Ex. J. These
documents, therefore, do not support a Credico-wide policy with respect to wages, hours, or
Moreover, the declarants provide testimony about the policies of only three Credico
subcontractors—Wallace Morgan, Cromex, Inc., and Red Ten NYC—all of which are located in
New York City.25 No declarant purports to have personal knowledge about the policies of other
Credico subcontractors that engage in marketing for Assurance Wireless. Nor do they allege that
the unlawful policies to which they were subject derived from Credico, as opposed to the Sprint
Partner that directly hired them. The declarations thus fail to supply a basis on which the Court
could infer a common FLSA-violative policy spanning all Sprint Partners that contract with
Sprint through Credico. See Trinidad v. Pret A Manger (USA) Ltd., 962 F. Supp. 2d 545, 557–60
(S.D.N.Y. 2013) (limiting notice to employees in six out of 33 New York locations where
plaintiffs failed to allege facts supporting an inference of a common policy across all stores);
McGlone v. Contract Callers, Inc., 867 F. Supp. 2d 438, 444–45 (S.D.N.Y. 2012) (conditionally
certifying a modified class of employees in only one of defendant’s divisions where plaintiff
adduced evidence of a common practice with respect to only this one location); Monger v.
Cactus Salon & SPA’s LLC, No. 08 Civ. 1817 (FB), 2009 WL 1916386, at *2 (E.D.N.Y. July 6,
2009) (denying conditional certification of employer’s 25 other locations, where “[p]laintiffs’
Opt-in plaintiff Michael Kates submitted a declaration with regard to his experience at Red
Ten NYC; Martin, Singleton, and opt-in plaintiffs Piper and Armstrong submitted declarations
with regard to their experiences at Wallace Morgan. Martin and Singleton further allege that,
based on the morning meetings they attended with Agents employed by Cromex, they “believe
that employees who worked for . . . Cromex also performed the same job duties that [they did],
were paid in the same manner as [they were], and were subject to the same rules as [them].”
Martin Decl. ¶ 22; Singleton Decl. ¶ 21. Cromex is a Credico subcontractor that serves as a
Sprint Partner and shares office space with Wallace Morgan. FAC ¶¶ 59, 61.
only evidence that other locations’ employees are similarly situated is that they ‘believe’ that all
hair stylists and shampoo assistants are subject to the same polices[;] [t]hey offer no basis for this
belief; they name no individuals at other salons who are similarly situated; and they provide no
documentary evidence that policies are the same at different . . . locations”).
Plaintiffs, therefore, have not met their modest burden of establishing a factual nexus
linking all members of the proposed Credico-wide collective. The deficiency of plaintiffs’ 11thhour application is especially acute given the scale of the proposed collective. The record does
not reflect the number of subcontractors that would be covered by a Credico-wide class. But
Schedule 1 of the Sprint-Credico Contract identifies 15 approved Credico subcontractors across
10 states, and there may well be many more.26 As such, plaintiffs’ proposed Credico-based
collective would, again, geographically span the nation.
The Court “cannot justify certifying a class of plaintiffs, likely numbering in the
hundreds, on the basis of such thin factual support” as that presented here. Laroque, 557 F.
Supp. 2d at 356; accord Guillen v. Marshalls of MA, Inc., 841 F. Supp. 2d 797, 800 (S.D.N.Y.
2012), adopted, Guillen II, 2012 WL 2588771 (denying nationwide certification where plaintiff
relied on affidavits from five Assistant Store Managers who all worked in stores in the New
York City area); Vasquez, 2011 WL 2693712, at *3 (denying certification where movant relied
That neither Wallace Morgan nor Cromex appears on this schedule reveals that it is not
comprehensive. The filings in a separate suit pending before this Court involving Credico
indicate that there may be far more Credico subcontractors than identified in the schedule
produced here. See Plaintiff’s Motion for Conditional Certification and Judicial Notice, Vasto et
al. v. Credico (USA) LLC, No. 15 Civ. 9298, Dkt. 62, at 7 (S.D.N.Y. Dec. 22, 2015) (alleging
that Credico “operates a network of over 100 subsidiary companies across the United States,
including Cromex, Assurance International, Vaeley Marketing Group, Inc., Wallace Morgan,
Marketing on 6th, Renegade Global, and others,” and that “[t]hese companies are located
throughout the country, including in Illinois, New York, Arizona, California, Nevada,
Massachusetts, Texas, and New Jersey”).
upon a uniform job description and evidence from a limited, “geographically concentrated
cluster”); Ahmed, 2013 WL 2649544, at *13 (rejecting nationwide certification where evidence
was from an “extremely limited” geographic region).
Accordingly, on the record at hand, the Court declines to conditionally certify a Credicowide class.
Conditional Certification of a Wallace Morgan/New York Class
Although plaintiffs have not established the existence of an unlawful policy on the part of
Sprint or Credico, they have adequately demonstrated that all Agents employed by Wallace
Morgan in New York City are similarly situated with regard to the alleged FLSA violations.27
The FAC alleges that all Agents at Wallace Morgan are classified as independent
contractors, have set schedules of 11–12 hours per day, 5–6 days per week (amounting to a total
of 55–72 hours), and are paid only a flat rate of $10 per approved application. FAC ¶¶ 95, 104,
114, 117. More specifically, the FAC alleges that, during their tenure at Wallace Morgan,
Martin and Singleton were consistently required to work more than 40 hours per week, while, at
all times, receiving no more than $10 per application. Id. ¶¶ 97, 104, 117, 122. As a result, the
FAC alleges, Martin and Singleton’s rights under the FLSA to a minimum wage and to overtime
pay were routinely denied. Id. ¶¶ 119–22. In their declarations, Martin and Singleton attest that
other Agents employed by Wallace Morgan “performed the same job duties that [they did], were
paid in the same manner as [they were], and were subject to the same rules as [them].” Martin
Decl. ¶ 22; Singleton Decl. ¶ 21.
In their reply brief, plaintiffs clarify that, contrary to Wallace Morgan’s suggestion, see WM
Br. 3–5, they are not “claiming that Wallace Morgan applied a policy beyond its operation in
New York.” Pl. Reply Br. 9 n.10.
These allegations are corroborated by the declarations of Piper and Armstrong. Both
allege that, while working at Wallace Morgan, they were “required [to] work long days, starting
early in the morning and ending after the close of business,” while being subject to the same flatrate payment scheme described by Martin and Singleton. Piper Decl. ¶¶ 9–12; Armstrong Decl.
¶¶ 9–11. And, like Martin and Singleton, Piper and Armstrong allege that they observed that
their coworkers with similar job titles28 performed the same job duties, and were subject to the
“same rules” and payment scheme. Piper Decl. ¶ 19; Armstrong Decl. ¶ 19. The Court can
fairly infer that these “rules” included the requirement to work long hours, and that the other
Wallace Morgan Agents were thereby similarly denied minimum wage and overtime pay as
required by the FLSA. See She Jian Guo, 2014 WL 5314822, at *3 (affidavits establishing that
three named plaintiffs were denied overtime and minimum wage support inference that other
restaurant employees at single location worked similar shifts for comparable pay).
Plaintiffs have, therefore, “made the modest showing that is required of them at this
preliminary stage” to justify conditional certification of a Wallace Morgan-wide class: They
have shown that “they were subjected to certain wage and hour practices at [Wallace Morgan]
and to the best of their knowledge, and on the basis of their observations, their experience was
shared by members of the proposed class.” Iglesias–Mendoza v. La Belle Farm, Inc., 239 F.R.D.
363, 368 (S.D.N.Y. 2007); see, e.g., Cohen, 686 F. Supp. 2d at 331 (granting conditional
certification of all research associates at one company based on two affidavits); Khamsiri v.
George & Frank’s Japanese Noodle Rest. Inc., No. 12 Civ. 0265 (PAE), 2012 WL 1981507, at
*1 (S.D.N.Y. June 1, 2012) (granting conditional collective certification based on employee’s
Piper worked first as a “Sales Rep” and later as a “Team Leader.” Piper Decl. ¶ 4. Armstrong
worked under the title of “Sales Associate.” Armstrong Decl. ¶ 4.
sworn allegations that she and other employees were paid less than the statutory minimum and
not compensated for overtime); Caspar v. Personal Touch Moving, Inc., No. 13 Civ. 8187
(AJN), 2014 WL 4593944, at *5 (S.D.N.Y. Sept. 15, 2014) (granting conditional certification
based on five affidavits from employees, stating that each worked in excess of 40 hours per week
but did not receive overtime compensation).
Wallace Morgan argues that conditional certification is unwarranted because there has
been no finding as to whether the members of the putative collective were exempt from the
FLSA, either as independent contractors or as outside salespersons. WM Br. 1, 6–7. “At the
crux of this argument is [d]efendants’ contention that [their] classification of all [Agents] as
exempt is proper and that the [Agents’] job description . . . is facially lawful.” Jacob v. Duane
Reade, Inc., No. 11 Civ. 0160 (JPO), 2012 WL 260230, at *5 (S.D.N.Y. Jan. 27, 2012).
It is premature, however, to resolve this merits issue. Id. The FAC contains sufficient
allegations to make the claim of employee status plausible. And at the conditional certification
stage, “a court should not weigh the merits of the underlying claims in determining whether
potential opt-in plaintiffs may be similarly situated.” Lynch, 491 F. Supp. 2d at 368; see also
Young, 229 F.R.D. at 54; Sbarro, 982 F. Supp. at 262 (“[T]he Court need not evaluate the merits
of plaintiffs’ claims in order to determine that a definable group of similarly situated plaintiffs
can exist here.”).29 Here, plaintiffs have established that they are similarly situated to all other
Indeed, conditional certification is routinely granted in cases that involve claims by the
defendant that an independent-contractor or outside-salesperson exemption applies. See, e.g.,
Jeong Woo Kim v. 511 E. 5th St., LLC, 985 F. Supp. 2d 439, 447 (S.D.N.Y. 2013) (independentcontractor exemption); In re Penthouse Executive Club Comp. Litig., No. 10 Civ. 1145 (NRB),
2010 WL 4340255, at *4 (S.D.N.Y. Oct. 27, 2010) (same); Aponte v. Comprehensive Health
Mgmt., Inc., No. 10 Civ. 4825 (PKC), 2011 WL 2207586, at *6 (S.D.N.Y. June 2, 2011)
(outside-salesperson exemption); Ack v. Manhattan Beer Distributors, Inc., No. 11 Civ. 5582
(CBA), 2012 WL 1710985, at *5 (E.D.N.Y. May 15, 2012) (same).
Agents employed by Wallace Morgan with regard to the alleged overtime and minimum wage
violations. No more is required at this stage.30
In a separate argument, Wallace Morgan argues that “the mere classification of a group
of employees . . . as exempt under the FLSA is not by itself sufficient to constitute the necessary
evidence of a common policy, plan, or practice that renders all putative class members as
‘similarly situated’ for § 216(b) purposes.” WM Br. 9 (citing Jenkins v. TJX Companies Inc.,
853 F. Supp. 2d 317, 323 (E.D.N.Y. 2012)). But Jenkins is inapposite. Plaintiffs here rely on
more than the asserted misclassification of Agents as exempt as the basis for their FLSA claims.
Their declarations identify discrete wage-and-hour practices at Wallace Morgan as the source of
the allegedly systematic overtime and minimum wage violations.
Finally, Wallace Morgan opposes conditional certification on the ground that plaintiffs
have not shown that they and the proposed collective “have sufficient interest in this action.”
WM Br. 7. This Circuit does not impose such a requirement at this stage. See Amendola v.
Bristol-Myers Squibb Co., 558 F. Supp. 2d 459, 466 (S.D.N.Y. 2008) (citing Braunstein v. E.
Photographic Labs., Inc., 600 F.2d 335, 336 (2d Cir. 1978)) (“FLSA plaintiffs are not required to
show that putative members of the collective action are interested in the lawsuit in order to
Wallace Morgan is similarly wrong to claim that the potential need for individualized inquiries
into whether an FLSA exemption applies precludes conditional certification. Wallace Morgan is
at liberty later to seek decertification if, following discovery, the need for an individualized
assessment of this issue becomes apparent. See Francis v. A & E Stores, Inc., No. 06 Civ. 1638
(CS), 2008 WL 4619858, at *3 n.3 (S.D.N.Y. Oct. 16, 2008) (“[Cases] denying conditional
certification where fact-specific inquiry might be required[ ] seem to be against the weight of
authority in undertaking that analysis at the first stage of the certification process, rather than
evaluating at the decertification stage whether the need for individual analysis makes a collective
action inappropriate.”); In re Penthouse, 2010 WL 4340255, at *4 (argument that class
certification is improper because the issue of whether plaintiffs qualified as independent
contractors will require an individualized inquiry “borders on specious”).
obtain authorization for notice of the collective action to be sent to potential plaintiffs.”); Neary
v. Metro. Prop. & Cas. Ins. Co., 517 F. Supp. 2d 606, 622 (D. Conn. 2007) (“[I]dentifi[cation]
[of] other potential class members who would want to participate in this action, . . . at this
preliminary stage, is not required in the Second Circuit.”). In any event, the declarations of
Martin, Singleton, Piper, and Armstrong are “more than sufficient” to support conditional
certification of Wallace Morgan-wide collective. Jeong Woo Kim, 985 F. Supp. 2d at 449.31
The Court, therefore, approves collective certification of a class limited to all Wallace
Morgan employees in New York City whose job was to gather applications for enrollment in the
Lifeline Program during the relevant time period.
Proposed Judicial Notice and Consent Form
“Upon authorizing the distribution of notice to potential opt-in plaintiffs, the district court
maintains ‘broad discretion’ over the form and content of the notice.” Chhab v. Darden Rest.,
Inc., No. 11 Civ. 8345 (NRB), 2013 WL 5308004, at *15 (S.D.N.Y. Sept. 20, 2013) (quoting
Gjurovich, 282 F. Supp. 2d at 106 (citing Hoffmann–La Roche, 493 U.S. at 170)).
Plaintiffs seek approval of a judicial notice and consent form (the “Notice”), Prakash
Decl., Ex. 16, which they propose be distributed to all putative class members via (1) first class
mail, (2) email, and (3) text message.32 Pl. Br. 22–23. Additionally, they request authorization
The Court also rejects Wallace Morgan’s claim that “additional discovery is necessary” before
the Court can certify a collective. See WM Br. 1. The allegations in the FAC and plaintiffs’
declarations are sufficient. The Court is “not obliged to wait for the conclusion of discovery
before it certifies the collective action and authorizes notice.” Iglesias–Mendoza, 239 F.R.D. at
368; see also Lynch, 491 F. Supp. 2d at 369 (“Because courts do not weigh the merits of the
claim, extensive discovery is not necessary at the notice stage.”).
Plaintiffs propose a special “Text Notice” that states: “If you gathered applications for Lifeline
phones and services through Assurance Wireless at any time since [three years prior to initial
complaint], you may be entitled to join a lawsuit claiming back pay. For additional information
to send a reminder notice (“Reminder Notice”) to potential plaintiffs who have not yet opted into
the action 15 days before the close of the notice period. Pl. Br. 24; Prakash Decl., Ex. 19.
As a threshold matter, plaintiffs are directed to revise the Notice to reflect the Court’s
restriction of the proposed collective to include only those Agents employed by Wallace Morgan
in New York City. Defendants raise a number of additional objections to the scope, content, and
manner of delivery of the notice. WM Br. 10–17; Sprint Br. 5 n.4; Eichberger Decl., Exs. K, L.
The Court addresses these objections in turn.
Scope of the Notice
Plaintiffs propose that the Notice be sent to all Agents who gathered Lifeline
Applications for Assurance Wireless within the three-year period preceding the commencement
of this lawsuit, and that potential opt-ins be given 60 days to join the collective action. Pl. Br.
22–23; Notice, at 1. Wallace Morgan argues that (1) a two-year limitations period is more
appropriate; (2) the limitations period should be measured from the date the Court grants
conditional certification, rather than from the date of filing of the complaint; and (3) the opt-in
period should be less than 60 days. WM Br. 12–13.
“The FLSA generally provides for a two-year statute of limitations on actions to enforce
its provisions, but allows a three-year limitations period for ‘a cause of action arising out of a
willful violation.’” Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 141 (2d Cir. 1999) (citing 29
U.S.C. § 255(a)). When willfulness is disputed, courts typically apply the three-year limitations
period in defining the scope of a collective action. Gaspar v. Pers. Touch Moving, Inc., No. 13
Civ. 8187 (AJN), 2014 WL 4593944, at *6–7; Hamadou, 915 F. Supp. 2d at 668. Because the
about the case, including how to join, please call the workers’ attorneys at 612-256-3200.”
Prakash Decl., Ex. 17.
parties here dispute the applicability of the willfulness standard, compare FAC ¶¶ 128–37, 141
(alleging willfulness), with WM Br. 12 (“There has not been . . . a showing [of willfulness] in
this case.”), the Court will apply the three-year standard.
“[B]ecause the three-year statute of limitations period for willful FLSA violations runs
for each individual plaintiff until that individual opts into the action, notice is generally directed
to those employed within three years of the date of the mailing of the notice.” Bittencourt v.
Ferrara Bakery & Cafe Inc., 310 F.R.D. 106, 116 (S.D.N.Y. 2015) (citing 29 U.S.C. §§ 255,
256; Whitehorn v. Wolfgang’s Steakhouse, Inc., 767 F. Supp. 2d 445, 451 (S.D.N.Y. 2011)).
Plaintiffs argue that the Court should toll the statute of limitations to “avoid inequitable results.”
Pl. Reply Br. 10 n.14. However, equitable tolling is appropriate “only in rare and exceptional
circumstances,” Phillips v. Generations Family Health Ctr., 723 F.3d 144, 150 (2d Cir. 2013)
(internal quotation marks and citation omitted), “where a plaintiff has been prevented in some
extraordinary way from exercising his rights,” Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir.
1996) (citation omitted).33 Plaintiffs here have not alleged any such unusual or extraordinary
circumstances.34 Moreover, less than two and a half months have transpired since the filing of
In determining whether to toll the statute of limitations, the Court should also consider whether
the plaintiff has “acted with reasonable diligence during the time period she seeks to have
tolled.” Zerilli–Edelglasss v. N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (internal
quotation marks omitted).
That Wallace Morgan and original defendant Assurance Wireless, LLC obtained extensions of
the time to answer the original complaint does not constitute “extraordinary circumstances”—
especially because these extensions were brief and occurred before the filing of the FAC. See
Guzman v. Three Amigos SJL Inc., No. 14 Civ. 10120 (GBD), 2015 WL 4597427, at *10
(S.D.N.Y. July 30, 2015) (three-and-a-half month delay between filing of plaintiffs’ motion and
its resolution “is not of a magnitude that would justify tolling”); and Mark v. Gawker Media
LLC, No. 13 Civ. 4347 (AJN), 2014 WL 5557489, at *3 (S.D.N.Y. Nov. 3, 2014) (11-month
delay in resolving plaintiffs’ conditional approval motion not “extraordinary” and thus did not
justify equitable tolling from the date the motion was filed).
the FAC. The Court, therefore, declines to equitably toll the statute of limitations “with the
understanding that challenges to the timeliness of individual plaintiffs’ actions will be
entertained at a later date.” Trinidad, 962 F. Supp. 2d at 564 n.14 (quoting Hamadou, 915 F.
Supp. 2d at 668) (internal quotation marks omitted). Accordingly, the Notice shall be directed to
all Agents employed by Wallace Morgan within three years of the date of issuance of the courtapproved Notice.
Finally, the Court approves the proposed 60-day opt-in period. While Wallace Morgan
argues that this period is too long, it fails to explain this objection, except as a matter of selfinterest, or to suggest a more appropriate duration. WM Br. 13. Sixty-day opt-in periods are
common in FLSA collective actions, Whitehorn, 767 F. Supp. 2d at 452 (collecting cases); Diaz
v. S & H Bondi’s Dep’t Store, No. 10 Civ. 7676 (PGG), 2012 WL 137460, at *8 (S.D.N.Y. Jan.
18, 2012) (same). The Court finds a period of that length reasonable here.35
Content of the Notice
With regard to the content of the Notice, defendants first argue that the proposed Notice’s
cursory statement that “Defendants deny the Plaintiffs’ claims” does not adequately represent
defendants’ positions and defenses. WM Br. 11; see also Eichberger Decl., Ex. L, at 2. Indeed,
courts frequently direct plaintiffs to include a more expansive account of defendants’ denials, as
well as the status of the action, in the introduction section of a collective action notice. Anjum,
Wallace Morgan does not object to the distribution of the proposed Reminder Notice. “Given
that notice under the FLSA is intended to inform as many potential plaintiffs as possible of the
collective action and their right to opt-in, [the Court] find[s] that a reminder notice is
appropriate.” Chhab, 2013 WL 5308004, at *16; accord Michael v. Bloomberg L.P., No. 14 Civ.
2657 (TPG), 2015 WL 1810157, at *4 (S.D.N.Y. Apr. 17, 2015); Lopez v. JVA Indus., Inc., No.
14 Civ. 9988 (KPF), 2015 WL 5052575, at *4 (Aug. 27, 2015). Plaintiffs are, therefore,
authorized to distribute the Reminder Notice 15 days before the close of the 60-day opt-in
2015 WL 3603973, at *15; see also Enriquez v. Cherry Hill Mkt. Corp., No. 10 Civ. 5616 (FB),
2012 WL 440691, at *4 (E.D.N.Y. Feb. 10, 2012) (approving language informing potential
plaintiffs that defendants intend to move to decertify the collective action). “[P]roportionality” is
“the key to assessing whether a proposed notice adequately captures the defendant’s position.”
Hernandez v. Merrill Lynch & Co., No. 11 Civ. 8472 (KBF), 2012 WL 1193836, at *5 (S.D.N.Y.
Apr. 6, 2012) (collecting cases). Here, “[i]n review of the proposed notice, it is clear that
plaintiffs’ description of their case is lengthier [and more detailed] than the description of
defendants’ position.” Id. at *5. Accordingly, plaintiffs are directed, in consultation with the
defense, to amend the Notice to include (1) a more fulsome statement of defendants’ positions
and defenses, and (2) an explicit statement that the Court has not yet made any determination on
the merits of plaintiffs’ claims. The Court expects counsel to work together harmoniously to
agree upon such text.
Second, Wallace Morgan asks that the Notice include contact information for defense
counsel. WM Br. 14. Enclosure of such information is routine, and it, too, should be included in
plaintiffs’ Notice. See, e.g., Gonzalez v. Scalinatella, Inc., No. 13 Civ. 3629 (PKC), 2013 WL
6171311, at *4 (S.D.N.Y. Nov. 25, 2013); Limarvin v. Edo Rest. Corp., No. 11 Civ. 7356
(DAB), 2013 WL 371571, at *3 (S.D.N.Y. Jan. 31, 2013); Bah v. Shoe Mania, Inc., No. 08 Civ.
9380 (LTS), 2009 WL 1357223, at *4 (S.D.N.Y. May 13, 2009).36
Third, Wallace Morgan requests that the Notice advise potential opt-ins that they may
retain their own counsel. WM Br. 14. Plaintiffs do not object to this request. Pl. Reply Br. 9–10
n.13. Courts frequently approve language clarifying that opt-in plaintiffs are “not required to
The Court approves Wallace Morgan’s proposed language cautioning potential opt-in
plaintiffs not to contact defense counsel directly if they choose to join the action. Plaintiffs
should include this language in the Notice, as well.
accept plaintiffs’ counsel as their own.” Garcia v. Pancho Villa’s of Huntington Vill., Inc., 678
F. Supp. 2d 89, 95 (E.D.N.Y. 2010); accord Siewmungal v. Nelson Mgmt. Grp. Ltd., No. 11 Civ.
5018 (BMC), 2012 WL 715973, at *4 (E.D.N.Y. Mar. 3, 2012); Morris v. Lettire Const., Corp.,
896 F. Supp. 2d 265, 274 (S.D.N.Y. 2012). Plaintiffs should modify the Notice to provide such
Fourth, Wallace Morgan contends that putative opt-in plaintiffs should be directed to
send their consent forms to the Clerk of Court, rather than to plaintiffs’ counsel, on the theory
that the latter practice implicitly discourages opt-in plaintiffs from selecting other counsel. WM
Br. 17. Courts in this District are split on this issue. Compare Fonseca v. Dircksen &
Talleyrand Inc., No. 13 Civ. 5124 (AT), 2014 WL 1487279, at *5 (S.D.N.Y. Apr. 11, 2014) (optin forms should be returned to plaintiffs’ counsel to reduce the burden on opt-in plaintiffs and the
court), with Hernandez v. Fresh Diet Inc., No. 12 Civ. 4339 (ALC) (JLC), 2012 WL 5936292, at
*2 (S.D.N.Y. Nov. 21, 2012) (consent forms must be submitted to the Clerk of Court to avoid
discouraging opt-in plaintiffs from retaining their own counsel). The majority of courts,
however, have directed opt-in plaintiffs to mail the consent forms to plaintiffs’ counsel. See,
e.g., Cordova v. SCCF, Inc., No. 13 Civ. 5665 (LTS), 2014 WL 3512820, at *6 (S.D.N.Y July
16, 2014); Schear v. Food Scope Am., Inc., 297 F.R.D. 114, 128 (S.D.N.Y. 2014); Gonzalez,
2013 WL 6171311, at *4; Delaney v. Geisha NYC, LLC, 261 F.R.D. 55, 59–60 (S.D.N.Y. 2009).
Because the revised Notice will clarify that opt-in plaintiffs may retain their own attorneys, there
is no reason to depart from the majority approach here. See Delaney, 261 F.R.D. at 60 (“Because
the notice states that opt-in plaintiffs can select their own counsel, there is only a minimal risk
that opt-in plaintiffs will be discouraged from seeking their own counsel.”). Therefore, the optin forms shall be returnable to plaintiffs’ counsel.
Fifth, Wallace Morgan argues that the Notice must provide more information about what
participating in the case entails. WM Br. 15–16. Specifically, Wallace Morgan asks that the
Notice inform potential opt-ins that they may be required to respond to written questions, be
deposed, and testify at trial. Id. at 15. Courts in this District routinely approve similar requests.
See, e.g., Whitehorn, 767 F. Supp. 2d at 450 (language notifying prospective class members of
“the possibility that they will be required to participate in discovery and testify at trial . . . is
routinely accepted”); Romero v. Flaum Appetizing Corp., No. 07 Civ. 7222 (BSJ), 2009 WL
2591608, at *6 (S.D.N.Y. Aug. 17, 2009). A brief explanation of the potential responsibilities of
opt-in plaintiffs is warranted here, as it will help putative class members make an informed
decision about whether to join this action.37
Distribution of the Notice
Wallace Morgan argues that distribution of the Notice should be limited to first-class
mail because plaintiffs have not demonstrated special circumstances that warrant email or text
message delivery, which Wallace Morgan contends may “distort[ ] . . . and compromise[ ] the
integrity of the notice process.” WM Br. 16. Plaintiffs argue that email and text message
distribution are necessary here given the high turnover of Agents and the likelihood that mailing
addresses in defendants’ records may be outdated. Pl. Br. 23.
However, the Court rejects Sprint’s request that the Notice inform plaintiffs that they “may be
assessed a pro rata share of the costs [of litigation]” if they do not prevail. See Eichberger Decl.,
Ex. L, at 3. Although some courts have permitted such language, see, e.g., Cordova, 2014 WL
3512820, at *7, “others have found language about potential costs to be inappropriate [g]iven the
remote possibility that such costs for absent class members would be other than de minimis, and
the risk of an in terrorem effect that is disproportionate to the actual likelihood that costs . . . will
occur in any significant degree.” Bittencourt, 310 F.R.D. at 117–18 (S.D.N.Y. 2015) (internal
quotation marks and citation omitted). The Court finds this reasoning persuasive.
Courts in this Circuit routinely approve email distribution of notice and consent forms in
FLSA cases. See, e.g., In re Deloitte & Touche, LLP Overtime Litig., 11 Civ. 2461 (RMB)
(THK), 2012 WL 340114, at *2 (S.D.N.Y. Jan. 17, 2012) (allowing email notice because
“communication through email is the norm”); Pippins v. KPMG LLP, No. 11 Civ. 0377 (CM),
2012 WL 19379, at *14 (S.D.N.Y. Jan. 3, 2012) (“given the reality of communications today,”
email notice is appropriate). Courts have also permitted text message distribution where, as here,
the nature of the employer’s business facilitated a high turnover rate among employees.
Bhumithanarn v. 22 Noodle Mkt. Corp., No. 14 Civ. 2625 (RJS), 2015 WL 4240985, at *5
(S.D.N.Y. July 13, 2015); see also Chamorro v. Ghermezian, No. 12 Civ. 8159 (TPG), Dkt. 17, ¶
2(1) (S.D.N.Y. Feb. 25, 2013). The Court thus authorizes email distribution of the Notice and
dissemination of the Text Notice, as well as delivery of the Notice by first class mail.
Wallace Morgan also asks the Court to order plaintiffs’ counsel to cease and desist from
initiating unauthorized communication with putative class members following conditional
certification of the proposed collective. WM Br. 17. However, “[i]n order for the Court to issue
a restraint on communications with a putative class, it ‘must be based upon a clear record and
specific findings that reflect a weighing of the need for a limitation and the potential interference
with the rights of the parties.’” Ruggles v. WellPoint, Inc., 591 F. Supp. 2d 150, 164 (N.D.N.Y.
2008) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 (1981)). Here, there is no record of
any abuse or of any misleading statements by plaintiffs’ counsel that would jeopardize “timely,
accurate, and informative” notice to the putative class. Hoffmann-La Roche, 493 U.S. at 172.
The Court, therefore, declines to restrict plaintiffs’ counsel’s communications with potential optin plaintiffs.
Production of Agents’ Contact Information
Finally, plaintiffs seek expedited disclosure, in electronic form, of the names, mailing
addresses, telephone numbers, email addresses, dates/locations of employment, and Social
Security numbers of all prospective class members. Pl. Br. 25. Defendants do not oppose this
In light of the broad remedial purposes of the FLSA, the Court has “the power to direct
[defendants] to produce the names and contact information of potential plaintiffs.” In re
Penthouse, 2010 WL 4340255, at *5. Courts in this District commonly grant requests for the
production of names, mailing addresses, email addresses, telephone numbers, and dates of
employment in connection with the conditional certification of a FLSA collective action. Chhab,
2013 WL 5308004, at *17; see, e.g., Chowdhury v. Duane Reade, Inc., No. 06 Civ. 2295 (GEL),
2007 WL 2873929, at *6 (S.D.N.Y. Oct. 2, 2007); In re Penthouse, 2010 WL 4340255, at *5;
Capsolas v. Pasta Res., Inc., No. 10 Civ. 5595 (RJH), 2011 WL 1770827, at *5 (S.D.N.Y. May
9, 2011); Ji Li v. Ichiro Rest. Inc., No. 14 Civ. 10242 (AJN), 2015 WL 6828056, at *5 (S.D.N.Y.
Nov. 5, 2015). The Court, therefore, grants plaintiffs’ request for such information—limited, of
course, to Agents employed by Wallace Morgan during the relevant period.38
“Although defendants do not specifically oppose the request to produce social security
numbers, [the Court] nevertheless conclude[s] that it is unnecessary to require that disclosure at
this time.” Ji Li, 2015 WL 6828056, at *5. While, in light of privacy concerns, courts in this
District typically decline to compel production of social security numbers, see, e.g., In re
Penthouse, 2010 WL 4340255, at *5; Damassia, 2006 WL 2853971, at *8, such discovery is
In light of the narrowed scope of the approved collective, production of the location of Agents’
employment is not necessary.
often permitted where demonstrably necessary to effectuate notice, see Whitehorn, 767 F. Supp.
at 448 (collecting cases). Here, while plaintiffs contend that Social Security numbers will assist
them in obtaining the most current mailing addresses for putative class members, Pl. Br. 25 n.7,
they have not demonstrated the necessity for this sensitive information. See Delaney, 261 F.R.D.
at 60 (“If Plaintiffs find that a large number of notices are returned as undeliverable, the Court
can consider the [request for disclosure of Social Security numbers] at that time.”); Chowdhury,
2007 WL 2873929, at *6 (denying production of Social Security numbers where plaintiff had
“not demonstrated that such information will aid in further reducing the already low number of
notices that were returned undeliverable”).
Accordingly, the Court directs defendants, within 10 days from the entry of this Order, to
produce to plaintiffs’ counsel, in an electronic format, the names, mailing addresses, telephone
numbers, email addresses, and dates of employment of all Wallace Morgan employees whose job
was to gather applications for enrollment in the Lifeline Program through Assurance Wireless
during the three years preceding issuance of a Court-approved Notice.39
For the foregoing reasons, the Court grants plaintiffs’ motion for conditional certification
of a collective consisting of all Wallace Morgan employees who gathered applications for
enrollment in the Lifeline Program through Assurance Wireless at any point during the three
years preceding the issuance of a Court-approved Notice. However, the Court denies plaintiffs’
motions for conditional certification of a broader collective, defined to include either all Agents
nationwide or all those employed by Credico.
Based on the deadlines set forth below, the Court expects that the Notice will issue by January
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