Struck et al v. PNC Bank N.A.

Filing 80

OPINION AND ORDER granting in part 52 Motion to Certify Class. The Court ORDERS that, within fourteen (14) days of the date of this Order, Defendants shall provide Plaintiffs with the full name and last known home address of each employee and form er employee fitting the class description, as well as the last known personal email address of each former employee fitting the class description. The Court further ORDERS the parties to confer and submit within fourteen (14) days a joint proposed notice and joint distribution plan consistent with this Order or, if the parties are unable to agree, separate proposed notices and/or distribution plans for the Courts approval. Signed by Judge Algenon L. Marbley on 2/13/2013. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LEE W. STRUCK , et al.,
Plaintiffs,
v.
PNC BANK N.A.,
Defendant.

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Case No. 2:11-CV-00982
JUDGE ALGENON L. MARBLEY
Magistrate Judge Norah M. King

OPINION & ORDER
This matter is before the Court on Plaintiffs’ Motion for Conditional Certification
and Court-Supervised Notice pursuant to Section 216(b) of the Fair Labor Standards Act,
29 U.S.C. § 216(b). (Doc. 52.) For the reasons set forth herein, Plaintiff’s Motion is
GRANTED in part.
I. BACKGROUND
On November 3, 2011, Plaintiffs Lee Struck (“Struck”) and Christopher
Kusserow (“Kusserow”) (collectively “Plaintiffs”) brought this action for unpaid
overtime and related relief under the Fair Labor Standards Act (“FLSA” or “the Act”), 29
U.S.C. § 216(b), on behalf of themselves and a putative class of current and former
Mortgage Loan Officers (“MLOs”) employed by Defendant PNC Bank, N.A. (“PNC” or
“Defendant”).1 (Doc. 2.) MLOs are those employees charged with the sale, origination
and production of home loans to the general public at Defendant’s branches. The named
plaintiffs are joined in this action by forty-five (45) additional current and former PNC

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 Plaintiffs’ complaint asserts claims under the Ohio Minimum Fair Wage Standards Act, O.R.C. §§
4111.01, et seq., and the Ohio Prompt Pay Act, OR.R.C. § 4113.15, on behalf of a class of Defendant’s
Ohio MLOs pursuant to Fed. R. Civ. P. 23. These state law claims and the propriety class certification
under Rule 23 are not at issue in the instant motion.   

MLOs who filed consent forms to join as plaintiffs in this suit. These opt-in Plaintiffs
include individuals who work or worked in Defendant’s offices and bank branches in
Ohio, California, Connecticut, Delaware, Florida, Illinois, Kentucky, Michigan, Missouri,
New Hersey, New York, Pennsylvania, Texas, Virginia, and Washington. (Lucas Decl.,
Doc. 52, Att. 1.)
Until the spring of 2011, PNC classified its MLOs as exempt from the
requirements of the FLSA and did not compensate them with overtime pay when they
worked more than forty (40) hours in a work week. During this period, PNC MLOs were
compensated through some combination of commissions and a salary draw. On April 1,
2011, PNC reclassified MLOs as a group to be non-exempt, overtime-eligible employees.
Plaintiffs characterize Defendant’s previous exempt designation of MLOs as an unlawful
misclassification, and allege that PNC’s failure to pay overtime violated the FLSA.
Defendant denies any wrongdoing and asserts that it reclassified its MLOs, not because
they were previously misclassified, but in response to regulatory developments in the
loan origination industry – including the adoption of the Dodd-Frank Loan Officer
Compensation Rules. See 12 C.F.R. § 226 (effective April 1, 2011).
Plaintiffs now move that this Court conditionally certify and supervise notice to a
putative class of current and former MLOs employed at any of PNC’s locations across
the country during any workweek from November 3, 2008. Defendant currently employs
approximately 1,100 MLOs nationally. (PNC Bank Decl., Doc. 54, Ex. B, ¶ 4.) Plaintiffs
assert that conditional certification is warranted here because PNC MLOs preform the
same job duties throughout the country and are subject to the same PNC operating
policies and procedures at all of Defendant’s branches.

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In support of their Motion, Plaintiffs submit fifteen declarations from opt-in
plaintiffs who state that they regularly worked over 40 hours per week to meet PNC’s
production goals in order to avoid repercussions including but not limited to termination,
and did not receive overtime compensation. (Doc. 52, Exs. B-P.) Plaintiffs’ declarants
also state that they were subject to and expected to comply with national PNC policies
and procedures for, among other things, loan origination, loan locks, loan pricing,
commissions, and documentation needed for loan processing. Accordingly, declarants
describe participating in various national and regional conferences, trainings, meetings,
and rallies with PNC MLOs from other offices, branches, and states. (Id.)
Defendant opposes conditional certification of a nationwide class of MLOs. PNC
characterizes its MLOs as a highly heterogeneous group vested with substantial
discretion as to when, where, and how to perform their job duties. PNC’s lack of
centralized policies in these matters, Defendant contends, results in a workforce whose
employment experiences and compensation vary widely from person to person. PNC
offers as support declarations from MLOs who describe their jobs as independent and
entrepreneurial, and akin to running ones’ own business. (Doc. 54, Exs. D-T.)
Defendant’s supporting declarations highlight MLO activities that have the potential to
satisfy a range of different FLSA exemptions, including the administrative exemption,
the outside sales exemption, the executive exemption, the highly compensated employee
exemption, the combination exemption, and the retail sales exemption.
II. LEGAL FRAMEWORK
Section 216(b) of the Fair Labor Standards Act “authorizes employees to bring an
action for violations of its provisions on behalf of ‘themselves and other employees

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similarly situated.’” In re HCR ManorCare, Inc., No. 11–3866, 2011 WL 7461073, at *1
(6th Cir. Sept. 28, 2011) (quoting 29 U.S.C. § 216(b)).2 The Act establishes two
requirements for a representative FLSA action against an employer: “1) the plaintiffs
must actually be ‘similarly situated,’ and 2) all plaintiffs must signal in writing their
affirmative consent to participate in the action.” Snelling v. ATC Healthcare Services,
Inc., No. 2:11-cv-983, 2012 WL 6042839, at *2 (S.D. Ohio Dec. 4, 2012) (quoting
Comer v. Wal–Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006)). Notably, “the
commencement of a collective action under § 216(b) does not toll the statute of
limitations period for plaintiffs who have failed to opt-in.” Heibel v. U.S. Bank Nat’l
Association, No. 2:11-cv-593, 2012 WL 4463771, at *7 (S.D. Ohio Sept. 27, 2012)
(quoting Lewis v. Huntington Nat. Bank, 789 F.Supp.2d 863, 867 (S.D. Ohio 2011)).3 
The distinct “opt-in” structure of § 216(b) heightens the need for employees to
“reciev[e] accurate and timely notice concerning the pendency of the collective action.”
Hoffman–La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989). The statute therefore
vests district courts with “discretion to implement 29 U.S.C. § 216(b) … by facilitating
notice to potential plaintiffs.” Id. at 169. The decision to conditionally certify a class, and

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 Section 216(b) states in relevant part:  

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

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 Under 29 U.S.C. § 255(a), “[a] § 216(b) action may be commenced within two years after the cause of
action accrued, or within three years if the cause of action arises out of a willful violation.” Lewis, 789
F.Supp.2d at 867 n.7 (quoting Musarra v. Digital Dish, Inc., No. 2:05-cv-545, 2008 WL 818692 (S.D. Ohio
Mar. 24, 2008)).  

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thereby facilitate notice, is thus “within the discretion of the trial court.” Snelling, 2012
WL 6042839 at *2 (citing Hoffman–La Roche, 493 U.S. at 169).
Accordingly, the Sixth Circuit has “implicitly upheld a two-step procedure for
determining whether an FLSA case should proceed as a collective action.” Heibel, 2012
WL 4463771, at *2 (citing In re HCR ManorCare, 2011 WL 7461073 at *1; Swigart v.
Fifth Third Bank, 276 F.R.D. 210, 213 (S.D. Ohio 2011)). First, at the “initial notice”
stage, before discovery has occurred, the Court “determine[s] whether to conditionally
certify the collective class and whether notice of the lawsuit should be given to putative
class members.” Id. (quoting Swigart, 276 F.R.D. at 213); see also Lewis, 789 F.Supp.2d
at 867 (quoting Comer, 454 F.3d at 547). The second stage of the FLSA collective action
analysis occurs once discovery is complete, when “the defendant may file a motion to
decertify the class if appropriate to do so based on the individualized nature of the
plaintiff's claims.” Heibel, 2012 WL 4463771 at *2 (quoting Swigart, 276 F.R.D. at 213).
The FLSA does not explicitly define the term “similarly situated,” and neither has
the Sixth Circuit. Wade v. Werner Trucking Co., 2012 WL 5373311, at *4 (S.D. Ohio
Oct. 31, 2012) (citing O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 584 (6th Cir.
2009)). Although the Sixth Circuit has declined to “create comprehensive criteria for
informing the similarly situated analysis,” it has held that FLSA plaintiffs may proceed
collectively in cases where “their claims [are] unified by common theories of defendants'
statutory violations, even if the proofs of these theories are inevitably individualized and
distinct.” O'Brien, 575 F.3d at 585. “Thus, similarly situated class members under [the]
FLSA are those whose causes of action accrued in approximately the same manner as
those of the named plaintiffs.” Lewis, 789 F.Supp.2d at 868. This Court has emphasized

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that a named plaintiff “need only show that [his] position [is] similar, not identical, to the
positions held by the putative class members.” Heibel, 2012 WL 4463771 at *3 (quoting
Lewis, 789 F.Supp.2d at 867-68) (alterations in original).
Significantly, the Sixth Circuit has admonished that courts “should not apply a
Rule-23 type analysis as to whether individualized questions will predominate.” Wade,
2012 WL 5373311 at *4 (emphasis added) (citing O’Brien, 575 F.3d at 584-85)
(explaining that the FLSA did not “import[] the more stringent criteria for class
certification under Fed. R. Civ. P. 23”). The “similarly situated” standard is also “less
stringent than Rule 20(a)[’s] requirement that claims ‘arise out of the same action or
occurrence’ for joinder to be proper.” O’Brien, 575 F.3d at 584 (citing Grayson v. K
Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996)).
III. LAW AND ANALYSIS
A. Conditional Certification
1. Standard
Given the minimal evidence before the court at the initial notice stage, Swigart,
276 F.R.D. at 213, plaintiffs need make only “a modest showing that they are similarly
situated to the proposed class of employees” in order to obtain conditional certification.
Lewis, 789 F.Supp.2d at 867. This “fairly lenient standard … typically results in
conditional certification.” Id. at 868.
In assessing whether Plaintiffs have met their initial burden to establish a “factual
basis for the allegation of class-wide FLSA violations,” id., courts “consider whether
potential plaintiffs were identified; whether affidavits of potential plaintiffs were
submitted; whether evidence of a widespread discriminatory plan was submitted, and

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whether as a matter of sound class management, a manageable class exists.” Heibel,
2012 WL 4463771 at *3 (internal quotations omitted in original) (quoting Lewis, 789
F.Supp.2d at 868). Notably, “the Court does not generally consider the merits of the
claims, resolve factual disputes, or evaluate credibility” at this early stage in the
proceedings. Id. at *2 (citing Swigart, 276 F.R.D. at 214 (“At the notice stage, district
courts within the Sixth Circuit typically do not consider the merits of the plaintiff's
claims, resolve factual disputes, make credibility determinations, or decide substantive
issues.”); Lacy v. Reddy Elec. Co., No. 3:11–cv–52, 2011 WL 6149842, at *2 (S.D. Ohio
Dec. 9, 2011) (“Requiring any more factual support from Plaintiff at this early stage, or
weighing competing factual assertions, would intrude improperly into the merits of the
action, essentially imposing a burden upon Plaintiff to prove the factual predicates of his
claim as a precondition to obtaining preliminary conditional certification.”) (internal
citations omitted)).
2. Analysis
Here, Plaintiffs have met their initial burden to show that that a class of similarly
situated employees exists. They have presented affidavits from 15 MLOs from across the
country attesting to common job responsibilities, common training, and common policies.
The Court notes too that, “at this preliminary stage, the fact that Defendants chose to
reclassify MLOs as a group implies that its MLOs as a whole, perform similar duties.”
Heibel, 2012 WL 4463771, at *5. Yet more importantly, Plaintiffs have asserted
“common theories of defendants' statutory violations,” O'Brien, 575 F.3d at 585, namely
that Defendant’s prior classification of MLOs as exempt from FLSA protections was
improper, that MLOs regularly worked in excess of 40 hours a week without overtime

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compensation to meet PNC production goals, and that these employees are therefore
owed backpay. See Swigart, 276 F.R.D. at 213 (granting MLOs conditional § 216(b)
class certification where they submitted evidence showing MLOs had similar job
responsibilities, did not receive overtime pay when they worked more than forty hours
per week, and then were reclassified from exempt to non-exempt employees as a group);
Heibel, 2012 WL 4463771 at *5-6 (same); Lewis, 789 F.Supp.2d at 868 (same); Wolfram
v. PHH Corp., No. 1:12-cv-599, 2012 WL 6676778, at *2 (S.D. Ohio, Dec. 21, 2012)
(same).
Defendant objects to the conditional certification of its MLOs on the grounds that
Plaintiffs have failed to “prove that they and the putative class were victims of a common
unlawful policy or plan.” (Doc. 58 at 12) (emphasis in original). The Court
acknowledges that PNC’s decision to reclassify its MLOs is not an admission of any
previous misclassification and may have “limited, if any, probative value as to the
ultimate merits of Plaintiffs’ claims.” Heibel, 2012 WL 4463771, at *5. Nevertheless, the
standard which PNC invokes is inapposite at this stage in the analysis. As discussed
above, the relevant inquiry at this juncture is whether Plaintiffs’ claims are united by
common theories of defendant’s statutory violations, O'Brien, 575 F.3d at 585 – a
standard which Plaintiffs here have met. The Court does not evaluate the merits of that
argument at this pre-discovery stage in the proceedings. Heibel, 2012 WL 4463771, at
*2; Swigart, 276 F.R.D. at 214; Lacy, 2011 WL 6149842, at *2.
Defendant further argues that collective treatment in this case is improper because
MLOs’ job duties and experiences vary, such that different FLSA exemptions may be
applicable to different employees. To that end, Defendant urges this court to consider its

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submission of numerous affidavits from MLOs describing the discretion vested in them
to decide how, when and where to perform their jobs and their exercise of varying
degrees of independent judgment. Defendant also attacks the credibility of the named
Plaintiffs, whom they cast as serial litigators. Again, the court does not “consider the
merits of the claims, resolve factual disputes, or evaluate credibility” at this stage of the
proceedings. Heibel, 2012 WL 4463771 at *2. See also Swigart, 276 F.R.D. at 214;
Lacy, 2011 WL 6149842 at *2. That includes “merit and factual disputes regarding what
exemptions may apply.” Heibel, 2012 WL 4463771 at *5 (“The Court finds that any
detailed inquiry into what exemptions or other individualized considerations may apply,
or whether such consideration[s] will ultimately make the class unmanageable, is
premature at this initial state prior to discovery.”). See also Creely v. HCR Manorcare,
Inc., 789 F.Supp.2d 819, 839 (N.D. Ohio 2011) (“[T]his Court is not swayed by [the
defendant’s] submission of thirty-five ‘happy camper’ affidavits …. [T]he Court’s
function at this stage of conditional certification is not to perform a detailed review of
individualized facts from employees hand-picked by [the defendant]. Those questions of
the breadth and manageability of the class are left until the second stage analysis….”)
(internal citations omitted).
Moreover, Defendant misconstrues the FLSA’s “similarly situated” standard:
courts in the Sixth Circuit have been explicitly warned against “apply[ing] a Rule-23
type analysis as to whether individualized questions will predominate.” O’Brien, 575
F.3d at 584-85. Rather, FLSA Plaintiffs seeking conditional certification to proceed
collectively “need only show that [their] position[s] [are] similar, not identical, to the
positions held by the putative class members.” Heibel, 2012 WL 4463771 at *3 (quoting

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Lewis, 789 F.Supp.2d at 867-68) (alterations in original). Where Plaintiffs’ claims are
sufficiently “unified by common theories of defendants' statutory violations,” a putative
class can satisfy the Act’s collective action standard “even if the proofs of these theories
are inevitably individualized and distinct.” O'Brien, 575 F.3d at 585.
If indeed discovery shows the claims of PNC MLOs to be so individualized as to
render the class unmanageable, Defendant may move to decertify the class at the second
stage of the certification proceedings. Heibel, 2012 WL 4463771 at *6. As this Court has
explained previously:
Conditional certification is meant only to aid in identifying similarly
situated employees. It is not a final determination that the case may
proceed as a collective action. After the opt-in forms have been filed and
discovery is complete, a defendant may file a motion for decertification.
At that point, the court examines with much stricter scrutiny the question
of whether these other employees are, in fact, similarly situated.
Heibel, 2012 WL 4463771 at *6 (quoting Lacy, 2011 WL 6149842, at *2).
Finally, Defendant argues that this Court should deny conditional certification due
to what Defendant characterizes as “improper” pre-certification solicitation of
prospective class members. Defendant points to a website constructed by Plaintiffs’
counsel “advertising this case and inviting people to join,” and which links to a “prepopulated” consent form that enables putative class members to opt into the suit “with the
click of a button.” (Doc. 58 at 33.) PNC argues that Plaintiffs’ private notice process
renders judicially supervised conditional certification and notice unnecessary. The Court
finds this argument unpersuasive.
This Court has previously “found that pre-certification communications with
putative members of a [§ 216(b)] collective action should be allowed unless
communication contradicts a court notice, is misleading or improper.” Heibel, 2012 WL
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4463771, at *6 (quoting Goody v. Jefferson Cnty., No. CV09437, 2010 WL 3834025, at
*2 (D. Idaho Sept. 23, 2010) (collecting cases)). As discussed above, “the
commencement of a collective action under § 216(b) does not toll the statute of
limitations period for plaintiffs who have failed to opt-in.” Id. at *7 (quoting Lewis, 789
F.Supp.2d at 867). Thus, the very structure imposed by 29 U.S.C. § 216(b) “appears to
encourage early communication with potential classmembers.” Id. (citing Lewis, 789
F.Supp.2d at 867; Bollinger v. Residential Capital, LLC, 761 F.Supp.2d 1114, 1122
(W.D. Wash. 2011) (“[A]n individual claimant under § 216(b) is not deemed to have
initiated suit until his consent is filed, provided incentive for putative class members to
file their consent forms early.”)). See also Hoffman–La Roche, 493 U.S. at 170
(explaining that the benefits of collective action under § 216(b) are “depend[ent] on
employees receiving accurate and timely notice”).
Here, as Defendant itself points out, PNC currently employs approximately 1,100
MLOs. The class of current and former MLOs with potential claims is therefore likely
much larger. That Plaintiffs’ were able to successfully contact some 45 opt-in plaintiffs
without the Court’s aid does not negate the need to facilitate notice to other class
members on whom the statute of limitations is still running. Accordingly, “[u]nder the
circumstances of this case, counsels’ pre-certification communications with potential
class members do not form an appropriate basis for ... denying class certification.”
Heibel, 2012 WL 4463771, at *7, *6 (declining to deny conditional certification of MLOs
or strike opt-in notices where potential plaintiffs were solicited through letters to
Defendant’s employees and a “website providing information about the suit as well as
opt-in consent forms”).

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In light of the foregoing, the Court finds that Plaintiffs have met their initial
burden of demonstrating that they are similarly situated to the proposed class. Plaintiffs’
request for conditional class certification is therefore GRANTED.
B. Court-Supervised Notice
Having conditionally certified Plaintiff’s proposed class, “the Court has the
authority to supervise notice to potential plaintiffs.” Lewis, 789 F.Supp.2d 863 (citing
Hoffman-La Roche, 493 U.S. at 172 (“By monitoring preparation and distribution of the
notice, a court can ensure that it is timely accurate, and informative.”)). Accordingly, the
Court GRANTS Plaintiffs’ request to authorize notice to putative opt-in plaintiffs.
Plaintiffs attach to their Motion a proposed notice to which Defendant objects on
a variety of grounds. The Court will not resolve the proper form and content of notice at
this time. Rather, the Court ORDERS the parties to confer and submit for the Court’s
approval, within fourteen (14) days of the issuance of this Order, a joint proposed notice
or, if the parties are unable to agree, separate proposed notices.
As part of their plan for distributing notice to potential class members, Plaintiffs
request that the Court authorize Plaintiffs’ counsel to disseminate notice to former
employees via email. Defendant objects to such methods of supplementary notice as an
unwarranted invasion of its former employees’ privacy. In evaluating such a request, the
Court “must balance two competing interests: safeguarding the privacy of individuals not
currently a party to this case and ensuring that all potential plaintiffs receive notice of
their right to join this lawsuit. Inherent in this balance is the principle that individuals’
private information, which they entrusted in their employer, shall not be disclosed except
for cause.” Order, Lewis v. Huntington Nat’l Bank, No. 2:11-cv-58, Doc. 53 at 3. When

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weighing these considerations in the context of proposed email notice to former
employees, this Court has reasoned that “[t]he addresses on file [with the Defendant] for
these individuals may or may not continue to be accurate, and using a second mode of
communication will help ensure that all of these potential plaintiffs will receive at least
copy of the Notice Package.” Id. at 4. Moreover, where notice is attached to an email “as
a pdf file rather than typed into the body of the email, the risk that the Notice will be
copied and forwarded to other people via the internet with commentary that could distort
the notice approved by the Court” is mitigated. Id. (internal citations and quotations
omitted). The same logic applies here. The Court therefore GRANTS Plaintiffs’ request
to distribute notice to former employees via email.
The Court ORDERS that, within fourteen (14) days of the date of this Order,
Defendants shall gather and provide Plaintiffs with the full name and last known home
address of each employee and former employee fitting the class description, as well as
the last known personal email address of each former employee fitting the class
description. The Court further ORDERS the parties to confer and submit for the Court’s
approval, within fourteen (14) days of the date of this Order, a joint plan for the
distribution of notice or, if unable to agree, separate proposed distribution plans
consistent this Order.
The Court fully expects the parties to work toward extrajudicial resolution with
regard to a proposed notice and a proposed distribution plan. In the event that the parties
are unable to reach agreement, however, any briefing submitted by either party on these
issues shall not exceed ten (10) pages in total. No responsive briefing will be permitted
on these matters unless explicitly directed by the Court.

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IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Conditional Certification and
Court-Supervised Notice is GRANTED in part. The Court ORDERS that, within
fourteen (14) days of the date of this Order, Defendants shall provide Plaintiffs with the
full name and last known home address of each employee and former employee fitting
the class description, as well as the last known personal email address of each former
employee fitting the class description. The Court further ORDERS the parties to confer
and submit within fourteen (14) days a joint proposed notice and joint distribution plan
consistent with this Order or, if the parties are unable to agree, separate proposed notices
and/or distribution plans for the Court’s approval.
IT IS SO ORDERED.
s/ Algenon L. Marbley
Algenon L. Marbley
United States District Court Judge

DATED: February 13, 2013

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