Kis v. Covelli Enterprises, Inc.

Filing 50

Order signed by Judge James S. Gwin on 6/4/18. IMPORTANT: The Court orders the parties to file for approval revised notice and consent forms incorporating the changes discussed in this entry no later than 6/6/18. (Related Docs. #48 and #49 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
---------------------------------------------------------------------ERIN E. KIS, on behalf of herself and all
others similarly situated,
Plaintiff,
vs.
COVELLI ENTERPRISES, INC.,
Defendant.
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Case No. 4:18-cv-54
ORDER
[Resolving Docs.48, 49]

***
CHELSEA ROMANO, on behalf of herself
and all others similarly situated,
Plaintiff,
vs.
COVELLI ENTERPRISES, INC.,
Defendant.
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Case No. 4:18-cv-434

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
The parties in these consolidated FLSA cases have several disagreements about the notice and
consent forms that are to be sent to potential collective action members. 1 Even though these
disagreements concern matters unlikely to have any impact on this litigation’s outcome, the parties
have apparently been unable to resolve them without the Court’s intervention.
First, Defendant Covelli Enterprises, Inc. contends that Plaintiffs’ proposed 60-day response
window for potential opt-in plaintiffs is too long.2 They instead propose a 45-day window.3 The
Court does not believe that Covelli would be prejudiced by allowing an additional 15 days for opt-

1

See generally Docs. 48, 49.

2

Doc. 49 at 3–4.
Id. at 3.

3

Case No. 4:18-cv-54
Gwin, J.
ins. The Court therefore OVERRULES Defendant Covelli’s objection to the 60-day notice period.
Second, Defendant Covelli contends that Plaintiffs should include the name and contact
information of defense counsel on the notice form.4 The Court also OVERRULES this objection.
Adding defense counsel’s information to the form would only confuse potential class members.5
Moreover, ethics rules would likely prevent defense counsel from communicating information of any
value to potential class members, because defense counsel would be operating under an obvious
conflict of interest.6
Third, Defendant Covelli asks that the notice to potential opt-in plaintiffs include this sentence
regarding discovery:
You should also understand that, as a party to this lawsuit, there is a possibility that
you may be required to provide information about your employment with Covelli
Enterprises, answer written questions, produce documents and/or testify at a pre-trial
deposition or trial under oath.7
Plaintiffs protest that this language is merely an attempt to discourage potential opt-in plaintiffs from
participating in the litigation.8 The Court agrees with Covelli that potential opt-in plaintiffs should be
advised of both the potential benefits and potential burdens of participation so they can make an
informed decision as to whether to join the action. But the Court also finds that Covelli’s proposed
language has too great a potential to deter potential class members from participating in this
litigation.9
The Court therefore ORDERS Plaintiffs to the following language in their notice forms:
You should also understand that, as a party to this lawsuit, there is some possibility
that you may be required to provide information to the named Plaintiffs, Covelli
Enterprises, and/or the Court about your employment with Covelli Enterprises. If this
case proceeds to trial, you may also be required to testify.

4
5

16, 2015).

Id. at 4.
Hughes v. Gulf Interstate Field Servs., Inc., No. 2:14-cv-000432, 2015 WL 13651211, at *1 (S.D. Ohio Sept.

6

See id.

7

Doc. 49 at 3.
Doc. 48 at 2.

8
9

See McKinstry v. Developmental Essential Servs., Inc., no. 16-cv-12565, 2017 WL 815666, at *3 (E.D. Mich.

Mar. 2, 2017)

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Case No. 4:18-cv-54
Gwin, J.
Fourth, Defendant Covelli asks that this disclaimer be included in the notice:
ALTHOUGH THIS NOTICE HAS BEEN AUTHORIZED BY THE UNITED STATES
DISTRICT JUDGE GWIN OF THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTICT OF OHIO, THE COURT TAKES NO POSITION REGARDING
THE MERITS OF PLAINTIFFS’ CLAIMS OR DEFENDANT’S DEFENSES, AND THERE
IS NO ASSURANCE THAT THE COURT WILL GRANT ANY RELIEF TO YOU OR
THE PLAINTIFFS IN THIS CASE. THE COURT NEITHER ENCOURAGES YOU NOR
DISCOURAGES YOU FROM JOINING THIS LAWSUIT.10
Plaintiffs argue that other language in the notice already provides this information and that the
disclaimer is difficult to read.11 The Court disagrees.
The statement on the first page of the notice stating that “[t]he Court has not decided who is
right and who is wrong,”12 does not carry the same force or effect of Defendant Covelli’s proposed
language. In that sense, the proposed notice does not abide by this Court’s instruction to the parties
to “’be scrupulous to respect judicial neutrality’ and ‘take care to avoid even the appearance of
judicial endorsement of the merits of the action.’”13
The Court does, however, agree that the notice, as written, is somewhat difficult to
understand. That problem would be solved by striking the first appearance of “the United States
District” from the disclaimer.
The Court therefore ORDERS Plaintiffs to include Defendant Covelli’s proposed disclaimer
with the above-described change.
Finally, Defendant Covelli asks that Plaintiffs remove language from the proposed notice
designating Plaintiffs as their agents for this action.14 While the Court does not believe the statement
is necessarily incorrect, its references to agency may be difficult for a lay person to understand. The
Court therefore ORDERS Plaintiffs to substitute the following language from the notice and consent
form issued in Kennedy v. Certain Care, LLC:

10
11

Id. at 3.
Id.

12

Doc. 48-1 at 2.
Doc. 41 at 5 (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 174 (1989)).
14
Doc. 48 at 4.
13

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Case No. 4:18-cv-54
Gwin, J.
I authorize the named Plaintiffs to file and prosecute the above referenced matter in
my name and on my behalf, and I designate the named Plaintiffs to make decisions
on my behalf concerning the litigation, including negotiating a resolution of my
claims, and I understand that I will be bound by such decisions.15
The Court FURTHER ORDERS the parties to file for approval revised notice and consent forms
incorporating the changes discussed above no later than June 6, 2018.
IT IS SO ORDERED.
Dated: June 4, 2018

s/

James S. Gwin

JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

15

Kennedy v. Certain Care, LLC, No. 1:17-cv-2444, Doc. 19 at 4 (N.D. Ohio Mar. 21, 2018).
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