Hogan v. Cleveland Ave Restaurant, Inc. et al

Filing 437

ORDER granting 396 Motion to Certify Class. GRANTING Plaintiffs request for FLSA court-facilitated notice, subject to the conditions of this Opinion and Order. ORDERING Plaintiffs to produce to this Court for approval a revised set of proposed n otice documents consistent with these instructions within FOURTEEN (14) DAYS of this Opinion and Order. ORDERING Defendants to provide to Plaintiffs, within FOURTEEN (14) DAYS of this Opinion and Order, an electronic file containing the putative clas s members legal first names, last-known e-mail addresses, and dates of employment since September 26, 2019. Signed by Chief Judge Algenon L. Marbley on 9/6/2023. (cw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JESSICA HOGAN, et al.,
Plaintiffs,
v.
CLEVELAND AVE RESTAURANT, INC.
d/b/a SIRENS, et al.,
Defendants.

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Case No. 2:15-cv-2883
Chief Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers

OPINION & ORDER
This matter is before the Court on Plaintiffs’ Motion to Certify as a Collective Action, a
Rule 23 Class Action, and to Send Notice. (ECF No. 396). This case involves a labor dispute
between two individuals (and others similarly situated) who formerly worked as exotic dancers
and a set of adult entertainment clubs and associated organizations and individuals. Plaintiffs’
Motion seeks an order from this Court approving the dissemination of court-facilitated notice
under the Fair Labor Standards Act (“FLSA”) and certifying this action as a class action under
Rule 23 of the Federal Rules of Civil Procedure and Article II, Section 34a of the Ohio
Constitution. For the following reasons, Plaintiffs’ Motion is GRANTED.
I.

BACKGROUND
A. Factual Background

Plaintiffs in this matter are Jessica Hogan and Dejha Valentine, who were employed as
exotic dancers for various Ohio adult entertainment clubs. Defendants are comprised of six Ohiobased adult entertainment clubs, their owners and managers (collectively, the “club Defendants”),
two strip club trade associations, and Greg Flaig. (ECF No. 271 ¶ 1). Specifically, the adult

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entertainment clubs are the following: Cheeks, Top Hat, Private Dancer, Centerfold, House of
Babes, Sirens, and Fantasyland West. (Id.).1
Plaintiffs allege the following. From August 2013 to June 10, 2015, Plaintiff Hogan was
employed at Sirens as a bartender, server, and exotic dancer. (Id. ¶ 28). From “approximately”
2014 to 2016, Plaintiff Valentine was employed as a dancer at Sirens. (Id. ¶ 29). Plaintiff Valentine
was also employed at some point at House of Babes. (Id. ¶ 119).
The club Defendants, as well as the ownership and management of those clubs, “conspired
and colluded” with Defendants Greg Flaig, the Owners Coalition (“OC”), and Buckeye
Association of Club Executives (“BACE”) illegally to require exotic dancers to pay rent to the
clubs for dancing there instead of being paid the minimum wage to which they were entitled. (Id.
¶ 29). The clubs are members of, affiliated with, or subscribers of BACE and/or OC. (Id. ¶ 12).
During the relevant time period, BACE and OC have functioned as the two primary adult
entertainment club industry trade associations in Ohio. (Id. ¶ 64).
Plaintiffs allege that Greg Flaig, the acting director of both BACE and OC, created an
unlawful system by which the clubs avoided compensating their dancers. (Id. ¶ 1). This system,
referred to as the “Tenant System,” is an alleged scheme used collusively by Defendants in which
dancers are charged fees to work at clubs instead of being paid their “rightful” minimum wage.
(Id. ¶ 2). These fees “include but are not limited to a charge for ‘rent’ that dancers are forced to
pay under the complete and utter fiction that they are ‘leasing space’ from the clubs while dancing
there.” (Id.). Pursuant to this system, Defendants memorialized the “Tenant System” in a contract
given to their exotic dancers entitled “Entertainer Tenant Space Lease Agreement” (the “Lease

1

Plaintiffs’ operative Second Amended Complaint (ECF No. 271) also names another club, Sirens, as a defendant.
Because Sirens has been dismissed from this action pursuant to a settlement agreement, this Court’s recitation of
Plaintiffs’ allegations omit those allegations which concern Defendant Sirens except those which remain relevant
post-settlement. (ECF No. 350; ECF No. 397 at 1).

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Agreement”). (Id. ¶ 79). The Lease Agreement reflected the clubs’ position that their exotic
dancers were not employees (who are owed a wage) but instead independent contractors who lease
space from the clubs while performing (who are not owed a wage). (Id.). Under the guise of serving
as “human resources consultant” to the clubs, Defendant Flaig instituted the Tenant System in
these clubs and has continued auditing and monitoring the clubs to ensure their continued
adherence. (Id. ¶ 13). BACE, OC, and Defendant Flaig are responsible for ensuring that the Tenant
System is used by the defendant clubs in coordinated fashion. (Id. ¶ 64).
Defendants treated their dancers like tenants and lessees whether a given dancer signed a
formal “Lease Agreement,” a similar tenant agreement, or no agreement at all. (Id. ¶ 96).
Defendants exerted substantial control over the dancers through actions including: controlling and
setting the rates that dangers charged customers; setting the fees that dancers were required to pay
to the club when dancing; hiring, firing, and disciplining dancers; mandating that dancers share
tips with non-tipped personnel; and requiring that dancers work their entire shifts or face a fine.
(Id. ¶ 98). BACE and OC’s member clubs—the club Defendants—used the Tenant System
pursuant to a mutual understanding and common plan designed to deny exotic dancers their
rightful minimum wages. (Id. ¶¶ 126–27). Thus, Plaintiffs allege that all club Defendants
maintained the same or similar illegal pay practices and that the dancers employed at those clubs
are similarly situated. (Id.).
B. Procedural Background
On October 6, 2015, Plaintiff Hogan filed this wage and hour lawsuit as a collective and
class action against Defendants alleging that their policies and actions violate the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq.; Article II § 34(a) of the Ohio Constitution;
and § 4113.15 of the Ohio Revised Code. (ECF No. 1 at 10–12; ECF No. 125 at 3). On May 19,

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2017, Plaintiff Hogan filed an Amended Complaint, this time adding BACE and OC as defendants.
(ECF No. 74).2 On May 14, 2020, Plaintiff Hogan joined with new Plaintiff Dejha Valentine to
file their Second Amended Class and Collective Action Complaint. (ECF No. 271). This is the
operative Complaint in this case. As Plaintiffs represented in their Motion for Leave to File the
Second Amended Complaint, the Second Amended Complaint added claims against the following:
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Six strip clubs that were part of the previously alleged Statewide Defendant Class
based on their membership in BACE and/or OC, i.e., Cheeks, House of Babes,
Top Hat, Private Dancer, Centerfold, and Fantasyland West;
The president of BACE and the owner of Cheeks, Lee Hale, and that club’s
manager, Eric Cochran;
The owner of Top Hat, Foursome Entertainment, and its operators and managers,
Mark Potts, Jimmy Lee, and Tim Bobb;
Potts as the owner and operator of Fantasyland West;
The owner, manager, and operator of Private Dancer, John “Dutch” Matthews;
The owner of Centerfold, Nolan Enterprises, LLC, and its managers and
operators, Brenda Bonzo and Ray Algood;
The owner/operator of House of Babes, Jimmy Doe (last name a pseudonym), and
its manager, John Doe (full name a pseudonym); and
Greg Flaig, the executive director of BACE and OC, and the owner of the latter.

(ECF No. 260 at 2–3).
Plaintiffs represented that the Second Amended Complaint also adds details about relevant
events since the filing of the prior complaint. (Id. at 3). Of the twenty counts contained in the
Second Amended Complaint, the final ten apply to the remaining Defendants in this case:
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Count X: Antitrust Violations;
Count XI: Civil Conspiracy to violate federal and state wage and hour and antitrust laws;
Count XII: Unjust Enrichment;
Count XIII: Ohio Constitution, Article II § 34(a), FLSA, and O.R.C. § 4113.15—Failure
to Pay Minimum Wage or Tipped Minimum Wage, Failure to Make Wage Payments
Within 30 Days, and Unlawful Retention of Tips;
Count XIV and XV: Ohio Constitution, Article II § 34(a) and FLSA—Failure to Pay
Tipped Minimum Wages (specific to Plaintiff Valentine and the “House of Babes Class”
against the House of Babes Defendants);

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The Second Amended Complaint uses “BACE” to refer to both BACE and OC because they merged in 2015. (ECF
No. 271 ¶ 12). Thus, any quote from the Amended Complaint that refers to “BACE” also includes OC.

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Count XVI: Ohio Constitution, Article II § 34(a)—Unlawful Deductions and/or Kickbacks
(specific to Plaintiff Valentine and the “House of Babes Class” against the House of Babes
Defendants);
Count XVII: FLSA—Unlawful Deductions and/or Kickbacks (specific to Plaintiff
Valentine and the “House of Babes Class” against the House of Babes Defendants);
Count XVIII: Ohio Constitution, Article II § 34(a)—Failure to Pay Minimum Wages
(specific to Plaintiff Valentine and the “House of Babes Class” against the House of Babes
Defendants);
Count XIX: FLSA—Failure to Pay Minimum Wages (specific to Plaintiff Valentine and
the “House of Babes Class” against the House of Babes Defendants); and
Count XX: Failure to Tender Pay by Regular Payday under Ohio Law (specific to Plaintiff
Valentine and the “House of Babes Class” against the House of Babes Defendants).

(ECF No. 271 at 44–61).
Plaintiffs request various forms of relief comprising a declaratory judgment and injunctive
and monetary relief (including liquidated damages, equitable relief, compensatory damages, and
pre- and post-judgment interest). (Id. at 62–63).
On May 17, 2021, this Court approved Plaintiffs’ settlement with Defendant Sirens,
resolving Plaintiffs’ claims as to that party. (ECF No. 350). On September 26, 2022, Plaintiffs filed
their Motion to Certify Class. (ECF No. 396). In their Motion, Plaintiffs seek an order from this
Court to allow the case to proceed as a collective action (pursuant to 29 U.S.C. § 216(b) and Article
II, Section 34a of the Ohio Constitution) and as a class action (pursuant to Rule 23 of the Federal
Rules of Civil Procedure and Article II, Section 34a of the Ohio Constitution). With respect to the
class action request, Plaintiffs argue that this case satisfies the requirements of Rule 23(a) and
should be certified under Rules 23(b)(3), 23(b)(2), and 23(b)(1)(A). Plaintiffs request the following
class definition:
All non-owner, non-employer exotic dancers who worked at any of defendants’
strip clubs at any time from May 14, 2014 to the present
(1) while such club
a. has used the Entertainer Tenant System created and
disseminated by Defendant Greg Flaig, or

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b. has required its dancers to sign and abide by the
Entertainer Tenant Space Lease Agreement created and
disseminated by Defendant Greg Flaig, or
c. has otherwise formally regarded its dancers as leasing
space at such club as entertainers and required them to
acknowledge the same, and
(2) while such club did not pay any wages to its dancers.
(ECF No. 396 at 2).
Plaintiffs’ Motion is ripe for this Court’s consideration.
II.

STANDARD OF REVIEW

A. FLSA Court-Facilitated Notice
Plaintiffs seek to proceed in this matter as a collective under the Fair Labor Standards Act,
29 U.S.C. § 201, et seq., as amended (“FLSA”). Under the FLSA, a lawsuit to recover unpaid
compensation must “be commenced within two years after the cause of action accrued,” unless the
action arose “out of a willful violation,” in which case the lawsuit must be initiated within three
years after accrual. 29 U.S.C. § 255(a). The FLSA provides that a court may approve courtfacilitated notice in an action brought “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). Similarly situated
employees “are permitted to opt into” the collective action. Comer v. Wal-Mart Stores, Inc., 454
F.3d 544, 546 (6th Cir. 2006). The plaintiffs bear the burden to show that the proposed class
members are similarly situated to the lead plaintiff. O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d
567, 584 (6th Cir. 2009), abrogated on other grounds by Campbell-Ewald Co. v. Gomez, 136 S.
Ct. 663, 669 (2016). The FLSA does not define “similarly situated.” Id.
District courts conduct a two-phase inquiry to determine whether plaintiffs are similarly
situated: previously referred to as “conditional certification” and “final certification”. Frye v.
Baptist Mem’l Hosp., Inc., 495 F. App’x 669, 671 (6th Cir. 2012). The Sixth Circuit has recently
explained that the process whereby the Court determines whether to enable a proposed collective
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to issue a notice to other employees should not be characterized “as a ‘certification,’ conditional
or otherwise.” Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003, 1009 (6th Cir. 2023).
This Court thus refers to the FLSA notice determination as “court-facilitated notice.”
In Clark, the Sixth Circuit maintained the two-step process for FLSA collective actions but
altered the calculus. At step one, for there to be court-facilitated notice to potential plaintiffs, the
named plaintiffs must show a “strong likelihood” that other employees of the defendant(s) are
“similarly situated” to them. McCall v. Soft-Lite L.L.C., No. 5:22-CV-816, 2023 WL 4904023, at
*5 (N.D. Ohio Aug. 1, 2023) (citing Clark, 68 F.4th at 1011). Before Clark, plaintiffs at step one
needed only produce enough evidence to support a “modest factual finding” that they were
similarly situated to potential plaintiffs. Clark, 68 F.4th at 1011. Clark’s new, “strong likelihood”
standard is borrowed from the test applied when implementing preliminary injunctions and
“requires a showing greater than the one necessary to create a genuine issue of fact, but less than
the one necessary to show a preponderance.” Id. If the court permits court-facilitated notice at the
first phase, “plaintiffs are permitted to solicit opt-in notices, under court supervision, from current
and former employees.” Cornell v. World Wide Bus. Servs. Corp., No. 2:14-CV-27, 2015 WL
6662919, at *1 (S.D. Ohio Nov. 2, 2015).
At step two, and after the close of discovery, the court makes a conclusive determination
as to whether the named plaintiffs are “in fact similarly situated” to opt-in plaintiffs, which must
be demonstrated by a preponderance of the evidence. Clark, 68 F.4th at 1009–10. At that point,
the opt-ins become parties to the suit and can proceed to trial collectively. Id. at 1010.
The Sixth Circuit has explained that whether particular employees are “similarly situated”
is a fact-specific inquiry. Id. Recognizing that the factual record is not yet fully developed at the
point in the litigation wherein the court must determine whether to facilitate notice in a FLSA suit,

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the Sixth Circuit has explained that the movant merely must “demonstrate to a certain degree of
probability” that she will prove that the employees are “similarly situated” when the court issues
its final decision. Id. at 1011. Some considerations that may guide the court in this inquiry include
“whether [the other employees] performed the same tasks and were subject to the same policies—
as to both timekeeping and compensation—as the original plaintiffs were.” Id. at 1010. Whether
other employees “are subject to individualized defenses” may affect whether they are similarly
situated. Id. The evidence presented “may include affidavits of potential plaintiffs or evidence of
a widespread policy or plan.” Petty v. Russell Cellular, Inc., No. 2:13-cv-1110, 2014 WL 1308692,
at *2 (S.D. Ohio Mar. 28, 2014). Further, whether the employees’ claims are subject to arbitration
should be considered in this analysis. Clark, 68 F.4th at 1010.
This Court finds it important to note that no single factor is determinative, given the
following:
The very point of the “similarly situated” inquiry is to determine whether the merits
of other-employee claims would be similar to the merits of the original plaintiffs’
claims—so that collective litigation would yield “efficient resolution in one
proceeding of common issues of law and fact arising from the same alleged
discriminatory activity.”
Id. at 1012 (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989)).
B. Class Certification
Plaintiffs also seek certification of the putative class under Rule 23(a) and either Rules
23(b)(3), 23(b)(2), or 23(b)(1)(A) of the Federal Rules of Civil Procedure. A plaintiff seeking class
certification bears the burden of establishing compliance with all four requirements of Rule 23(a),
referred to by the shorthand of “(1) numerosity, (2) commonality, (3) typicality, and (4) adequacy.”
Fed. R. Civ. P. 23(a); Alkire v. Irving, 330 F.3d 802, 820 (6th Cir. 2003). Additionally, even though
Rule 23 has no express ascertainability requirement, the Sixth Circuit has held that it is implicitly
required for class certification. Cole v. City of Memphis, 839 F.3d 530, 541 (6th Cir. 2016).
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Ascertainability is met where the “class description [is] sufficiently definite so that it is
administratively feasible for the court to determine whether a particular individual is a member.”
Id. (quoting Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012)).
In ruling on a motion for class certification, a district court should not consider the merits
of the plaintiffs’ claims but may consider evidence outside of the pleadings to determine whether
the prerequisites of Rule 23 are met. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). That
said, on occasion, “it may be necessary for the court to probe behind the pleadings before coming
to rest on the certification question,” see Gen. Tele. Co. of Southwest v. Falcon, 457 U.S. 147, 160
(1982), and “rigorous analysis” may involve some overlap between the proof necessary for class
certification and the proof required to establish the merits of the plaintiffs’ underlying claims.”
Wal-Mart Store, Inc. v. Dukes, 564 U.S. 338, 350–51 (2011). A court, however, should not conduct
free-ranging merits inquiries at this stage, but may consider the merits only to the extent “they are
relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”
Amgen Inc. v. Conn. Retirement Plans & Trust Funds, 568 U.S. 455, 466 (2013).
1. Rule 23(b)(3)
In addition, under Rule 23(b)(3), class certification is appropriate if “the court finds that
the questions of law or fact common to class members predominate over any questions affecting
only individual members, and that a class action is superior to other available methods for fairly
and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3) (referred to by the shorthand
of “predominance and superiority”).
2. Rule 23(b)(2)
As this Court has previously noted, neither the Supreme Court nor the Sixth Circuit has
addressed directly whether parties seeking class certification for damages and declaratory relief

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must plead both Rule 23(b)(2) and (b)(3). J&R Passmore, LLC v. Rice Drilling D, LLC, No. 2:18CV-01587, 2023 WL 2667749, at *25 (S.D. Ohio Mar. 28, 2023) (Marbley, J.). Class actions for
both can be certified under Rule 23(b)(2), but only where the monetary damages are incidental to
the equitable remedy sought. Wright & Miller, 7AA Fed. Prac. & Proc. Civ. § 1784.1 (3d ed.).
Generally, incidental damages are those that concomitantly flow directly from liability to the class
as a whole on the claims forming the basis of the injunctive or declaratory relief—meaning those
to which class members automatically would be entitled once liability to the class as a whole is
established. See Allison v. Citgo Petroleum Corp., 151 F. 3d 402, 415 (5th Cir. 1998). If it is
determined that damage relief is not incidental, the Seventh Circuit suggests that the district court
should consider three alternatives: (1) certifying the class under Rule 23(b)(3) for all proceedings;
(2) certifying a Rule 23(b)(3) class for the portion of the case addressing damages and a Rule
23(b)(2) class for the portion of the case addressing equitable relief; or (3) certifying a class under
Rule 23(b)(2) for both monetary and equitable remedies but exercise its plenary authority under
Rule 23(d)(2) and 23(d)(5) to provide all class members with personal notice and opportunity to
opt out. Lemon v. Int'l Union of Operating Engineers, Local No. 139 AFL-CIO, 216 F.3d 577,
581–82 (7th Cir. 2000).
3. Rule 23(b)(1)(A)
As explained by a fellow court in this district, the purpose of Rule 23(b)(1)(A) is to prevent
defendants from being legally subject to contradictory court rulings. Doster v. Kendall, 342 F.R.D.
117, 127 (S.D. Ohio 2022). In other words, this provision applies in instances wherein the court is
concerned that “different judicial outcomes would impose conflicting obligations on the same
defendant or group of defendants.” Id. at 127.

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III.

LAW AND ANALYSIS

A. FLSA COURT-FACILIATED NOTICE
In their Motion, Plaintiffs argue that their proposed collective definition satisfies the proper
burden justifying this Court’s approval of court-facilitated notice pursuant to the FLSA.
As an initial point, Plaintiffs argue that their proposed collective definition is not impacted
by any applicable statute of limitations even if FLSA suits must be brought within two or three
years of the alleged violation. This is because, Plaintiffs contend, a six-year limitations period
applies to Plaintiffs’ claim for unjust enrichment under Ohio law, and the proposed class definition
is properly predicated on the longest possible limitations period.
Plaintiffs next argue that all the relevant considerations for demonstrating they are
“similarly situated” to the putative collective members—including employment settings,
individual defendants, and the fairness and procedural impact of certification—weigh in favor of
approving court-facilitated notice. Plaintiffs first argue that Defendants’ alleged coordination in
using the unlawful Tenant System against dancers at each member club constitutes the type of
widespread misclassification found by courts to justify approving court-facilitated notice.
Plaintiffs contend that, if this Court finds that they produce insufficient evidence on the “similarly
situated” prong, this Court should note that Defendant Sirens earned sanctions in this case for
destroying relevant employee records. Plaintiffs also argue that this Court may consider all the
evidence in the record in its determination whether to approve court-facilitated notice, which
includes: a copy of Plaintiff Valentine’s House of Babes Lease Agreement; a copy of a Private
Dancer Lease Agreement that Defendant Flaig allegedly devised; sworn testimony from Defendant
Flaig and various club owners/managers; and Defendants’ own documents including Defendants’
lease agreements and internal memoranda.

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Plaintiffs dismiss many of Defendants’ arguments as merits-based arguments that are
improper for this Court to consider at this stage, including: that the FLSA claims are time-barred;
that the Lease Agreements contain enforceable arbitration clauses preventing the putative
collective members from joining a collective or class action; and that Plaintiffs are not qualifying
“employees” within the meaning or the protections of the FLSA. Plaintiffs also dismiss
Defendants’ contention that Plaintiff Hogan is not similarly situated to the putative collective
members because she never signed a Lease Agreement. According to Plaintiffs, even without
signing an agreement, Hogan was subject to the same policies as the other dancers. Plaintiffs
contend that the fact that the named Plaintiffs never worked at several of the clubs is irrelevant
because all collective members were subject to the same common policy or plan. Plaintiffs last
point out that this Court’s May 17, 2021 order approving the Sirens settlement (ECF No. 350)
noted that 29 entertainers filed claims. According to Plaintiffs, many of those same dancers also
danced at the non-Sirens defendant clubs and are thus eligible to join this lawsuit.
As an initial argument, Defendants respond that the Lease Agreements contain mandatory
arbitration and class action waiver agreements that should dispose of Plaintiffs’ claims in their
entirety. Defendants acknowledge that the named Plaintiffs did not sign any agreement that waived
their ability to maintain a class or collective action lawsuit but argue that this shows that Plaintiffs
are not similarly situated to the putative collective members. Defendants also note that the Lease
Agreements provided dancers the option not to agree to arbitration.
The crux of Defendants’ argument is that Plaintiffs and putative class members are
independent contractors whose agreements are enforceable; that Plaintiffs’ lawsuit is merely a
grievance against a legal business model; and that the Lease Agreements vary significantly across
the clubs. Defendants argue that Plaintiffs fail to show the following necessary for this Court to

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approve court-facilitated notice: “(1) whether potential plaintiffs were identified; (2) whether
affidavits of potential plaintiffs were submitted; (3) whether evidence of a widespread
discriminatory plan was submitted; and (4) whether a manageable class exists as a matter of ‘sound
class management.’” (ECF No. 401 at 45) (quoting Combs v. Twin Grp., Inc., No. 3:16-cv-295TMR, 2016 WL 7230854, *2 (S.D. Ohio Dec. 14, 2016)).
Defendants contend that even the named Plaintiffs are not similarly situated: Plaintiff
Hogan worked for Sirens (which is no longer a party to this case) and never signed the very
agreement upon which Plaintiffs’ claims are predicated. Defendants also reason that Plaintiffs
cannot show that a single, FLSA-violating policy operates across all the clubs given that the
dancers are compensated differently at each club. Finally, Defendants contend, Plaintiffs fail to
identify any potential putative collective members and have not produced any affidavits from
potential putative class members supporting the approval of court-facilitated notice.
For court-facilitated notice to be approved, Plaintiffs’ burden is merely to “show only that
his position is similar, not identical to the positions held by the putative class members.” Lewis v.
Huntington Nat’l Bank, 789 F. Supp. 2d 863, 867 (S.D. Ohio 2011); Comer, 454 F.3d at 546–47
(internal quotation marks and citation omitted). Judge Helene White explained that the Sixth
Circuit’s ruling in Clark “addresses how much a plaintiff must show to satisfy a district court that
other employees exist who . . . [are] similarly situated to the plaintiff,” but “does not address the
underlying threshold for FLSA similarity, which remains the same.” Clark, 68 F.4th at 1020–21
(White, J., concurring in part and dissenting in part).
Showing a “unified policy” of violations is not required. O’Brien, 575 F.3d at 584.
Plaintiffs are similarly situated “when they suffer from a single, FLSA-violating policy, and when
proof of that policy or of conduct in conformity with that policy proves a violation as to all the

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plaintiffs.” Id. at 585. In determining whether to approve court-facilitated notice, courts have
considered factors “such as whether potential plaintiffs were identified; whether affidavits of
potential plaintiffs were submitted; and whether evidence of a widespread . . . plan was submitted.”
Castillo v. Morales, 302 F.R.D. 480, 486 (S.D. Ohio 2014) (Marbley, J.) (quoting H & R Block,
Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D. Tex. 1999)).
Affidavits from plaintiffs are properly considered in this inquiry where they “allege facts
sufficient to support an inference that [they have] actual knowledge about other employees’ job
duties, pay structures, hours worked, and whether they were paid for overtime hours.” Foley v.
Wildcat Invs., LLC, No. 2:21-CV-5234, 2023 WL 4485571, at *3 (S.D. Ohio July 12, 2023)
(Morrison, J.) (citing O’Neal v. Emery Fed. Credit Union, No. 1:13-CV-22, 2013 WL 4013167, at
*8 (S.D. Ohio Aug. 6, 2013) (Dlott, C.J.)). Facts “such as first-hand observations or observations
with co-workers—will typically be enough to show that a similarly situated class of employees
exists.” O’Neal, 2013 WL 4013167, at *8. But the allegations cannot be based on hearsay. Foley,
2023 WL 4485571, at *3 (citing Lansberg v. Acton Enters., No. 2:05-cv-500, 2006 WL 3742221,
at *3 (S.D. Ohio 2006) (Sargus, J.) (two affidavits based on hearsay provide no “colorable basis”
for issuing notice to other employees)).
Importantly, “at the conditional certification stage, the Court does not consider the merits
of the claims, resolve factual disputes, or decide substantive issues.” Colley v. Scherzinger Corp.,
176 F. Supp. 3d 730, 733–34 (S.D. Ohio 2016). This Court finds that Plaintiffs have adequately
demonstrated a “strong likelihood,” Clark, 68 F.4th at 1011, that they are similarly situated to the
putative collective members.
First, Plaintiffs present sufficient evidence that the practices to which Defendants allegedly
subjected them were widespread practices that impacted the putative class members. Plaintiffs’

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allegations that Defendants collusively employed the Tenant System, thereby failing to pay
dancers who were rightfully owed minimum wage, points to a coordinated and widespread plan
violative of the FLSA. Plaintiffs Hogan and Valentine submitted declarations that they worked as
dancers for at least one of the clubs in this case and were forced to pay “rent” like the other dancers.
(ECF No. 397 at 11) (citing ECF No. 194-3 ¶¶ 15–16; ECF No. 195-4 ¶¶ 3–5; ECF No. 195-1).
Attached to their Motion, Plaintiffs submit testimony from the following Defendants
acknowledging that the Tenant System was used in their establishments: Greg Flaig, confirming
the Lease Agreement’s use at Centerfold (Flaig Deposition, ECF No. 397-3 at 15:6–15:11, 15:25–
16:4); Greg Flaig, confirming the Lease Agreement’s use at Top Hat (Id. at 55:5–55:8); James
Deascentis confirming the Lease Agreement’s use at House of Babes (Deascentis Deposition, ECF
No. 397-4 at 55:9–55:18); Elbert Lee Hale confirming the Lease Agreement’s use at Cheeks (Hales
Deposition, ECF No. 397-5 at 78:2–78:14); and Mark Potts confirming the Lease Agreement’s use
at Fantasyland West (ECF No. 397-6 at 41:15–42:13). Sirens General Manager Jay Nelson also
testified that multiple strip club owners who are members of BACE and OC have used the Lease
Agreement to run their businesses. (ECF No. 262-3 at 169:6–169:24). Plaintiffs represent that the
Centerfold Lease Agreement attached to their Motion is representative of the agreements used by
the other clubs. (See ECF No. 397-1 at 13–21).
Whether a given individual signed a Lease Agreement appears immaterial. After all,
Plaintiffs allege that Defendants colluded to force the dancers to pay rent instead of being paid as
employees—whether they signed a Lease Agreement or not. According to Plaintiffs, the putative
collective members all have the same basic roles and are subject to the same alleged illegal
payment practices. Plaintiffs must demonstrate only that they qualified as employees and that the
Defendants acted in conformity with the Tenant System policy to establish collective-wide

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liability. Defendants do not dispute Plaintiffs’ allegations that they did not pay the putative
collective members.
In sum, Plaintiffs submit evidence of the existence of the Tenant System; that Flaig
instituted the plan in all the clubs; and that each club had hundreds of dancers per year. Given that
each club allegedly belonged to the same organization and used as a “consultant” the same person
who devised the Tenant System, there is sufficient evidence of “unlawful pay practices at each of
the . . . locations identified in the Complaint, at about the same time and place, in generally the
same manner, which affected Plaintiff and the putative class members in the same way.” Castillo,
302 F.R.D. at 486.
Second, Plaintiffs submit sufficient evidence that the putative collective members indeed
exist. Attached to Plaintiffs’ Motion for Leave to File Proofs of Joinder Under Seal were
declarations from several individuals who joined the Sirens settlement stating that they danced for
clubs that are still named as defendants. (See ECF No. 404). These individuals attested that none
of the club Defendants for which they danced paid them any wages for dancing, instead charging
them rent for the privilege of dancing there. (Id.). Plaintiffs represent that several of the 29
entertainers who filed claims to the Sirens settlement also have claims against at least one of the
remaining club Defendants. (ECF No. 405 at 28–29). The General Manager of Sirens disclosed
that “hundreds” (“probably” in excess of 300) of dancers signed copies of the Lease Agreement at
Sirens alone during his tenure as director of operations. (ECF No. 262-4 at 108:8–108:18). Given
that approval of court-facilitated notice may be appropriate even if a plaintiff’s declaration does
not explicitly identify members of the putative class, Morrison v. Columbus Fam. Health Care
LLC, No. 2:22-CV-3460, 2023 WL 3266785, at *6 (S.D. Ohio May 5, 2023) (collecting cases),
Plaintiffs’ evidence satisfies their burden.

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This Court considers in turn Defendants’ defenses, summarized as the following: (1)
Plaintiffs are not “employees,” but independent contractors; (2) putative collective members with
FLSA claims which arose more than two years ago are time-barred; (3) several putative collective
members are barred from joining a FLSA collective action because they signed contracts
preventing them from joining a FLSA or Rule 23 class action, instead subjecting their claims to
mandatory arbitration; and (4) Defendant Private Dancer and associated parties should not be
included in this case because Plaintiffs never alleged that they have any personal knowledge of
Private Dancers’ policies nor of a relationship between Private Dancer and BACE/OC.
First, whether Plaintiffs are employees under the FLSA is a merits-based inquiry. As a
fellow court in this district observed, whether Plaintiffs and others are similarly situated as exempt
employees under the FLSA “is a merits determination that will be considered at the second phase
of certification, not this initial conditional inquiry.” Morrison, 2023 WL 3266785, at *5.
Second, the parties’ debate concerning whether the FLSA statute of limitations should be
two years or three years requires a merits-based determination that is inappropriate at this stage of
the case. See, e.g., Weisgarber v. N. Am. Dental Grp., LLC, No. 4:18CV2860, 2020 WL 1322843,
at *5 (N.D. Ohio Mar. 20, 2020) (determining that “Defendants’ argument that the statute-oflimitations should be two years as opposed to three years requires a merit-based determination that
should be made in the next stage of the certification process.”); Kinder v. MAC Manufacturing
Inc., 318 F. Supp. 3d 1041, 1048 (N.D. Ohio 2018) (explaining that “[b]ecause [the] [d]efendants’
statute of limitations argument requires an evaluation on the merits of [the] [p]laintiff’s claim, it
is inappropriate for resolution at this early stage of litigation.”). This is because whether
Defendants’ alleged violations of the FLSA were “willful” or not is a factual determination
concerning whether Defendants “either knew its conduct violated the FLSA or showed reckless

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disregard about the matter.” Hempfling, 2018 WL 5465870, at *7. This Court thus rejects this
argument while noting that Defendants retain the ability to raise it once more at a later stage in the
litigation.
Third, this Court considers Defendants’ defense that several putative collective members
are barred from entering into a FLSA collective because they are subject to mandatory arbitration.
The Sixth Circuit recently acknowledged that a court may consider the defense of mandatory
arbitration at this stage of the litigation. Clark, 68 F.4th at 1012. In support of their argument,
Defendants note that the Lease Agreements at issue all contained a mandatory arbitration
provision. Defendants reason that Plaintiff Valentine is an inadequate representative because she
signed the provision of the Lease Agreement which waived her ability to participate in a “class
and common action.” (ECF No. 401 at 60). Defendants then state that Plaintiff Hogan is an
inadequate representative if she did not sign a Lease Agreement because all other putative
collective members did, per their allegations. (Id.). This is incorrect because the Lease Agreement
typified by the Centerfold version of the agreement attached to Plaintiffs’ Motion shows it allowed
dancers the option of whether to agree to submit their potential claims to arbitration. (See ECF No.
397-1 at 34–36). “Allowed” is the operative word. Defendants would have a stronger case if they
could argue that every dancer who signed the Lease Agreement also had to agree to arbitration.
Defendants’ case would be stronger still if they could argue that every person who danced had to
sign a Lease Agreement. Defendants can do neither.
Defendants essentially ask this Court to determine that mandatory arbitration bars the
claims of putative collective members who are not yet before this Court and who lack the
opportunity to defend against arbitration. This Court will not do so. See Masco Corp. v. Zurich
Am. Ins. Co., 382 F.3d 624, 627 (6th Cir. 2004) (explaining that, before compelling arbitration, a

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court must find that “a valid agreement to arbitrate exists between the parties and that the specific
dispute falls within the substantive scope of that agreement.”). Neither this Court nor Defendants
know the exact identities of the putative collective members. Neither this Court nor Defendants,
then, know the particulars of those individuals’ agreements. They could have danced without
signing an agreement, like Plaintiff Hogan. They could have signed the agreement but elected not
to submit their claims to arbitration. They could have submitted their claims to arbitration via
contract but have a viable claim that the arbitration clause is voidable. Defendants thus cannot rely
on this blanket defense to defeat Plaintiffs’ request for court-facilitated notice.
Fourth, this Court considers Defendant Private Dancer’s argument that Plaintiffs lack any
personal knowledge of its policies or its relationship with BACE/OC. Plaintiffs summarized
testimony from Defendant Flaig indicating that he acted as Private Dancer’s human resources
consultant and that Private Dancer used two versions of his Lease Agreement between
“approximately 2014 until at least March 6, 2020[.]” (ECF No. 390 at 11–13). Plaintiffs submitted
a copy of a Private Dancer Lease Agreement containing the same provisions that Plaintiffs allege
to be unlawful in the Lease Agreements used by the other club Defendants. (ECF No. 262-3).
Contrary to Defendant Private Dancer’s contention that Plaintiffs merely “assume” that Private
Dancer uses the same policies as the other clubs are alleged to use, Plaintiffs have submitted
evidence of its practices. Whether Plaintiffs’ evidence conclusively proves Defendant Private
Dancer’s liability is undoubtedly a merits-based question unsuitable for this stage in the litigation.
In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 722 F.3d 838, 851 (6th Cir. 2013)
(explaining that district courts most only consider at the class certification stage “those matters
relevant to deciding if the prerequisites of Rule 23 are satisfied.”); Myers v. Marietta Mem'l Hosp.,
201 F. Supp. 3d 884, 890 (S.D. Ohio 2016) (Marbley, J.) (explaining that, at the FLSA

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“conditional-certification” stage, “a court ‘does not generally consider the merits of the claims,
resolve factual disputes, or evaluate credibility[.]’”).
For these reasons, this Court GRANTS court-facilitated notice under the FLSA.
B. NOTICE ISSUES
Plaintiffs submit their proposed notice documents to their Motion. (ECF No. 397-7).
Plaintiffs also request the following with respect to the notice documents: (1) that this Court
authorize them to be sent to potential collective members using regular U.S. mail and email; (2)
that this Court permit the notice to be posted at the location of each defendant club; (3) that this
Court require the defendant clubs to produce a computer-readable list of all their dancers’ actual
names, last-known addresses, last-known email addresses, and dates of employment since May
14, 2014; (4) that this Court require Defendants to pay for Plaintiffs’ use of text messages, website
postings, and publication notices to notify dancers from the recently-added clubs on the basis that
those clubs likely discarded the dancers’ Lease Agreements; (5) that this Court bar Defendants “or
anyone acting on their behalf” from retaliating against dancers who choose to join this lawsuit;
and (6) that this Court authorize a 180-day opt-in/out period with tolling as of December 1, 2021,
on the basis that Defendants have “destroyed or discarded the best contact information (the
completed Lease Agreements) for large swaths of the class.”
Defendants do not produce arguments responsive to Plaintiffs’ requests concerning the
notice documents. The only argument that appears answerable to Plaintiffs’ request is Defendants’
objection to Plaintiffs’ attempt to blame the discovery gaps on them. (ECF No. 401 at 63).
Defendants argue that Plaintiffs have no right to the dancers’ personal information for the purposes
of soliciting those dancers to join a putative class action before a conditional certification has been
approved.

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1. Modes of Notice Dissemination
Plaintiffs’ first, second, third, and fourth requests with respect to the notice documents
concern the methods by which notice may be sent. Put together, Plaintiffs request the following:
(1) to be permitted to disseminate the notice documents via U.S. mail and e-mail; (2) to be
permitted to post the notice documents at Defendants’ club locations; (3) to receive a court order
requiring Defendants to produce a computer-readable list of their dancers’ contact information;
and (4) to be permitted to disseminate the notice documents through text message, website posting,
and publication notices at Defendants’ cost.
Courts are afforded broad discretion in determining how notice and consent forms are to
be disseminated and returned. Wells v. Cmty. Health Sys., Inc., No. 3:21-CV-00865, 2022 WL
4377116, at *6 (M.D. Tenn. Sept. 22, 2022) (quoting Honaker v. Wright Bros. Pizza, Inc., No.
2:18-cv-1528, 2020 WL 134137, at *3 (S.D. Ohio Jan. 13, 2020)). Typically, courts “approve only
a single method for notification unless there is a reason to believe that method is ineffective.”
Hamm v. S. Ohio Med. Ctr., 275 F. Supp. 3d 863, 879 (S.D. Ohio 2017). This Court, following the
trend in the Southern District of Ohio, tends to allow both mail and email notices to be sent to
putative class members. Smyers v. Ohio Mulch Supply, Inc., No. 2:17-CV-1110, 2019 WL 101905,
at *4 (S.D. Ohio Jan. 4, 2019) (Marbley, J.) (quoting Hall v. U.S. Cargo & Courier Serv., LLC,
299 F. Supp. 3d 888, 899–900 (S.D. Ohio 2018)). Some courts have also permitted “conspicuous
posting at a defendant’s office location” and “directed defendants to provide electronic files with
contact information for putative class members.” Wells, 2022 WL 4377116, at *6 (collecting
cases). They have also approved the online execution of consent forms. Id. Courts have tended,
however, to reject requests to send notice by text message unless Plaintiffs can show that notice
by postal and electronic mail has been unsuccessful. Id.

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Allowing Plaintiffs to reach putative collective members by both email and first-class mail
would: “likely obviate the need to resend notice if an employee’s home address is inaccurate,”
Hall, 299 F.Supp.3d at 899; sure to be a concern given Plaintiffs’ representations concerning the
industry; and Defendants’ inadequate record-keeping practices. In this case, the combination of
poor record-keeping and the high turnover inherent to the exotic dancing industry makes the use
of U.S mail and email alone likely insufficient to effectively spread information about this lawsuit.
At the same time, this Court is sensitive to the putative class members’ heightened need for
privacy. This Court must thus balance Plaintiffs’ need to communicate notice of this lawsuit with
the putative collective members’ heightened privacy interests given the nature of the exotic
dancing industry.
Having considered Plaintiffs’ requests, this Court permits the following: Plaintiffs may
send notice by U.S. mail and email; Plaintiffs may post (or cause to be posted) notice at all club
Defendants’ sites in a conspicuous location (i.e., the lobby or performer dressing rooms);
Defendants must provide an electronic file (within 14 days) containing the putative class members’
legal first names, last-known e-mail addresses, and dates of employment since September 26,
2019; and Plaintiffs may create a website and develop publication notices for dissemination,
subject to this Court’s approval of the contents therein. Given the privacy interests at issue in this
case, however, this Court will not permit Plaintiffs to communicate notice via text message.
Further, this Court rejects Plaintiffs’ request for Defendants to cover the costs of disseminating
notice. Such a request is more appropriately suited for a motion for attorneys’ fees and costs to be
filed at the conclusion of this case.

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2. Retaliation Notice
Plaintiffs next request an order from this Court barring Defendants from retaliating against
putative class members for joining this suit. It goes without saying, however, that it is illegal to
retaliate against an employee for joining a FLSA lawsuit. See Pettit v. Steppingstone, Ctr. for the
Potentially Gifted, 429 F. App’x 524, 529 (6th Cir. 2011) (explaining that the FLSA prohibits
retaliation against an employee because he or she “filed any complaint or instituted or caused to
be instituted any proceeding under or related to this Act.”). If the putative class member suffers
retaliation as the result of joining this lawsuit, he or she may seek court-provided relief. Further,
Plaintiffs expressly include in their proposed notice documents the following language:
The law strictly forbids any employer from retaliating against an employee for
filing or joining a lawsuit. This includes a prohibition against firing you, docking
your pay, changing your hours, etc. If you experience retaliation, report it
immediately to the plaintiffs’ attorneys.
(ECF No. 397-7 at 4).
This Court does not find any reason to issue an order reminding Defendants not to violate
the law; it is evident that Defendants risk liability for doing so. As such, this request is denied.
3. Opt-In Period and Equitable Tolling
Plaintiffs last request that this Court authorize a 180-day opt-in/out period with tolling as
of December 1, 2021, on the basis that Defendants have “destroyed or discarded the best contact
information (the completed Lease Agreements) for large swaths of the class.” (ECF No. 397 at
57). As fellow courts in this district have acknowledged, “[t]here is no hard and fast tule controlling
the length of FLSA notice periods.” Myres v. Hopebridge, LLC, No. 2:20-CV-5390, 2021 WL
2659955, at *7 (S.D. Ohio June 29, 2021) (quoting Ganci v. MBF Inspection Servs., Inc., No. 2:15CV-2959, 2016 WL 5104891, at *2 (S.D. Ohio Sept. 20, 2016)). This Court has repeatedly noted
that 90 days is a standard notice period and granted it accordingly. See, e.g., Pender v. Wings, No.
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2:21-CV-4292, 2023 WL 2472035, at *8 (S.D. Ohio Mar. 13, 2023) (Marbley, J.); Smith v.
Generations Healthcare Servs. LLC, No. 2:16-CV-807, 2017 WL 2957741, at *7 (S.D. Ohio July
11, 2017) (Marbley, J.); Conklin v. 1-800 Flowers.com, Inc., No. 2:16-CV-675, 2017 WL
3437564, at *6 (S.D. Ohio Aug. 10, 2017) (Marbley, J.).
In a collective action, a named plaintiff's claim is considered to be filed on the date the
complaint is filed and he or she files a written consent to join the collective action. Atkinson v.
TeleTech Holdings, Inc., No. 3:14-CV-253, 2015 WL 853234, at *7 (S.D. Ohio Feb. 26, 2015).
But as this Court has previously noted, “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.” Struck v.
PNC Bank N.A., 931 F. Supp. 2d 842, 845 (S.D. Ohio 2013) (Marbley, J.). The doctrine of
equitable tolling “permits courts to extend the statute of limitations on a case-by-case basis to
prevent inequity.” Id. (quoting Baden–Winterwood v. Life Time Fitness, 484 F.Supp.2d 822, 826
(S.D. Ohio 2007)). Typically, “equitable tolling applies only when a litigant’s failure to meet a
legally-mandated deadline unavoidably arose from circumstances beyond that litigant’s control.”
Id. (quoting Graham–Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561–62
(6th Cir. 2000)). It is the plaintiff’s burden to demonstrate why he or she is entitled to toll equitably
the statute of limitations in a given case. Id. The Sixth Circuit has articulated five factors to be
considered in determining whether equitable tolling should apply to a given case: “(1) lack of
actual notice of filing requirement; (2) lack of constructive knowledge of filing requirement; (3)
diligence in pursuing one's rights; (4) absence of prejudice to the defendant; and (5) a plaintiff's
reasonableness in remaining ignorant of the notice requirement.” Andrews v. Orr, 851 F.2d 146,
151 (6th Cir. 1988)

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This Court has readily granted a 90-day notice period where, as here, Plaintiffs credibly
anticipate difficulties in locating all potential class members. See Pender, 2023 WL 2472035, at
*8. This Court has not, at least in recent history, granted an opt-in period of the significant length
that Plaintiffs request. This Court also notes that Plaintiffs have had nearly eight years to identify
potential collective members.
With respect to Plaintiffs’ claim for equitable tolling, this Court finds that their request is
premature. Despite their burden of demonstrating why equitable tolling is warranted in this case,
Plaintiffs’ argument scantily points to Defendants’ record-keeping practices as justification. Given
the rarity with which equitable tolling is to be permitted, see Andrews, 851 F.2d at 151, this Court
finds Plaintiffs’ threadbare arguments to be insufficient. Like several other courts in this district,
this Court declines to grant equitable tolling where it is “not prepared to cast an extraordinary net
extending the rights of putative plaintiffs when there [was] little to no specific information” about
the circumstances of the potential opt-in FLSA plaintiffs. Richert v. LaBelle HomeHealth Care
Serv. LLC, No. 2:16-CV-437, 2017 WL 4349084, at *6 (S.D. Ohio Sept. 29, 2017) (collecting
cases). In this instance, the application of the Andrews test “to a group of potential opt-in plaintiffs,
who have not yet received notice of the collective action and are not yet parties to the lawsuit, is
convoluted at best.” Atkinson, 2015 WL 853234, at *9.
However, it is possible that many potential opt-in plaintiffs will have colorable claims for
equitable tolling. It is also possible that Plaintiffs will be able to demonstrate that Defendants
“willfully” violated the FLSA such that the three-year statute of limitations applies (as opposed to
the two-year limitation that would otherwise apply). 29 U.S.C. § 255(a). It is thus appropriate for
the notice form to state the earliest date at which equitable tolling would be considered. Tolling
for purposes of the notice form gives opt-in plaintiffs a chance to argue for equitable tolling.

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Different courts have used various points in the litigation from which to toll the statute of
limitations: some have used the date of the issuance of the order permitting court-facilitated notice,
others have used the date of the filing of the complaint, and still others have used the date of the
filing of the motion for court-facilitated notice. See Weisgarber, 2020 WL 1322843, at *5. Based
on the record, the opt-in notice period should be measured from the filing of the motion for courtfacilitated notice. See ECF No. 396 (motion for court-facilitated notice filed on September 26,
2022). This approach considers the dispute between the parties concerning various employment
records (See, e.g., ECF Nos. 410, 412) and the extent to which this Court’s ruling on Plaintiffs’
Motion was accordingly delayed. This Court, therefore, will grant tolling for purposes of the notice
forms for the period between September 26, 2019, and the close of the notice period. When the
notice forms are distributed to potential opt-in plaintiffs, they shall state a cutoff date of September
26, 2019.
In so ruling, the Court is not deciding that all opt-in plaintiffs with otherwise time-barred
claims will remain in the collective action. Because a ruling on individual or group-wide tolling
would be premature at this junction, this Court will reserve a final decision on tolling until all
consent forms are received. Presently, the Court is deciding only that the notice form should not
preclude any individuals with potentially viable claims from appearing before the Court.
With these considerations in mind, this Court rejects Plaintiffs’ requests for a 180-day optin/out period and for equitable tolling. Plaintiffs will be permitted a 90-day notice period. Once
the notice has been sent and the opt-in period is closed, the opt-in plaintiffs may file motions for a
decision from this Court on whether equitable tolling is appropriate in their individual
circumstances.

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4. Content of the Notice Documents
Defendants do not produce any argument objecting to the content of the notice documents.
Plaintiffs’ notice documents are APPROVED with the following alterations to the document
entitled “Notice of Opportunity to Join Unpaid Wage Lawsuit” (ECF No. 397-7):
1. The notice documents shall state a cutoff date of September 26, 2019, and shall be
distributed to all current and former employees since that date who otherwise meet
the class definition;
2. The documents must be updated to reflect that the opt-in period is 90 days; and
3. The section entitled “Any ‘Lease Agreement’ or Other Contract that You May Have
Signed Does Not Affect Your Rights” must clarify in each sentence containing a
factual allegation that the facts are alleged. It must also clarify that it is Plaintiffs’
position that the Lease Agreements and other similar agreements do not impact the
rights of the putative collective members. Every sentence that contains a legal
conclusion, in fact, must clarify that the legal assertions are Plaintiffs’ position or
belief. The third sentence in the second paragraph shall be changed to read
“Ultimately, the Court in this lawsuit will determine the validity of that provision of
the Lease Agreement.”
Plaintiffs are ORDERED to produce to this Court for approval a revised set of proposed
notice documents consistent with these instructions within FOURTEEN (14) DAYS of this
Opinion and Order. These documents shall also include a copy of the proposed draft email, as well
as a document outlining the language to be used in any website or other publication notice.
Defendants are ORDERED to provide to Plaintiffs, within FOURTEEN (14) DAYS of this

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Opinion and Order, an electronic file containing the putative class members’ legal first names,
last-known e-mail addresses, and dates of employment since September 26, 2019.
C. CLASS CERTIFICATION
Plaintiffs also move for class certification under Federal Rules of Civil Procedure 23(a)
and either 23(b)(3), 23(b)(2), or 23(b)(1)(A).
1. Class Certification – Rule 23(a)
A plaintiff seeking class certification bears the burden of establishing compliance with all
four requirements of Rule 23(a): “(1) numerosity, (2) commonality, (3) typicality, and (4)
adequacy.” Fed. R. Civ. P. 23(a). This Court considers whether Plaintiffs satisfy each requirement
in turn.
a. Numerosity
Plaintiffs argue that the putative class is sufficiently numerous to establish that joinder
would be impracticable. Plaintiffs contend that this Court should overlook any perceived lack of
direct evidence of numerosity because Defendants have discarded many of the putative class
members’ Lease Agreements upon which Plaintiffs would have relied. Nonetheless, Plaintiffs
contend, various depositions from Defendants indicate that the number of dancers in the proposed
class who were subjected to the Tenant System is enough to satisfy numerosity. For example,
Plaintiffs argue, Defendant Erick Cochran testified that Defendant Cheeks alone has “250 to 300”
dancers perform at the venue in a typical year. (ECF No. 397 at 6) (citing ECF No. 371-2).
Defendants respond that the deposition testimony in the record is insufficient to
demonstrate that there are enough dancers who were subjected to the Tenant System to satisfy
numerosity. According to Defendants, Plaintiffs’ complaints of lacking access to the unredacted
copies of the Lease Agreements support the notion that they cannot demonstrate this prong.

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Federal Rule of Civil Procedure 23(a)(1) requires that “the class [be] so numerous that
joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). To satisfy numerosity,
“impracticability of joinder must be positively shown, and cannot be speculative.” Golden v. City
of Columbus, 404 F.3d 950, 966 (6th Cir.2005). The Sixth Circuit has found even classes of 35 to
be sufficient to meet this requirement. Young, 693 F.3d at 542 (citing In re Am. Med. Sys., Inc., 75
F.3d 1069, 1076 (6th Cir. 1996)).
This Court finds that numerosity is satisfied here. This Court noted the following earlier in
this Order germane to this prong:
Of the 29 entertainers who filed claims to the Sirens settlement, Plaintiffs represent
that several of them have claims against at least one of the remaining clubs in this
action. (ECF No. 405 at 28–29). The General Manager of Sirens disclosed that
“hundreds,” “probably” in excess of 300, Sirens dancers entered into the Lease
Agreement at that club alone during his time as director of operations. (ECF No.
262-4 at 108:8–108:18).
Supra Section III.A.
Considering Plaintiffs’ submitted evidence, this Court finds that Plaintiffs’ assertion that
numerosity is met in this case is non-speculative. Given the sheer number of dancers who have
danced at just one of the clubs implicated in this case (See ECF No. 262-4 at 108:8–108:18)
alongside evidence appearing to show that several dancers tended to dance at multiple clubs (ECF
No. 405 at 28–29), this Court thus finds that numerosity is met.
b. Commonality and Typicality
Plaintiffs argue that commonality and typicality are both met because the proposed class
definition includes dancers who, like Plaintiffs, were treated and harmed in the same way by a
common system. Specifically, Plaintiffs contend that their common allegations are that all
members of the putative class were misclassified by Defendants as non-employee “entertainer
tenants” pursuant to a common scheme devised by Defendants Flaig; promoted by Defendants
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Flaig, OC, and BACE; and adhered to by each of the club Defendants. Plaintiffs argue that a
finding of commonality usually results in a finding of typicality. Plaintiffs contend that the facts
that Plaintiff Hogan did not sign a Lease Agreement or dance on a full-time basis does not defeat
a finding of typicality given that she was still subjected to the Tenant System and that the Sirens
Lease Agreement was nonetheless raised as a defense against her.
Defendants respond that neither typicality nor commonality is met because Plaintiffs and
the putative class members worked at different clubs at different times, with different policies and
procedures, with different compensation, and under different agreements. Given this, Defendants
argue, many individuals in the putative class will have unique defenses or no claim at all to the
requested relief. According to Defendants, this means that a class member could prove her own
claim in this case without proving the claims of other class members. Defendants thus argue
Plaintiffs must and cannot prove with evidence that all putative class members suffered the same
injury and have claims to any relief.
Rule 23(a)(2) “requires plaintiffs to prove that there are questions of fact or law common
to the class, and Rule 23(a)(3) requires proof that plaintiffs' claims are typical of the class members'
claims.” Young, 693 F.3d at 542. To demonstrate commonality, Plaintiffs’ “claims must depend
on a common contention . . . of such a nature that it is capable of classwide resolution—which
means that determination of its truth or falsity will resolve an issue that is central to the validity of
each one of the claims in one stroke.” Id. With respect to typicality, “a plaintiff's claim is typical
if it arises from the same event or practice or course of conduct that gives rise to the claims of
other class members, and if his or her claims are based on the same legal theory.” In re Am. Med.
Sys., Inc., 75 F.3d at 1082.

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Both typicality and commonality are satisfied in this case. Plaintiffs claim that Defendants
conspired to use the Tenant System—a scheme which Plaintiffs allege caused dancers employed
by the club Defendants to be denied the wages to which they were legally entitled. The resolution
of such questions as whether Plaintiffs were “employees” within the meaning of the FLSA or
whether the Tenant System resulted in the underpayment of Plaintiffs would advance the interests
of the entire class. The claims brought by Plaintiffs and by the putative class members are
predicated on the same course of conduct in which Defendants are alleged to have engaged.
Because the same factual and legal theories underline both the claims of the named Plaintiffs and
the putative class members, this Court is satisfied as to the presence of commonality and typicality.
c. Adequacy
Plaintiffs next argue that adequacy is demonstrated in this case. In so doing, Plaintiffs
contend that they have common interests with the unnamed members of the proposed class and
that they have vigorously prosecuted the interests of the class through qualified counsel. On the
first prong, Plaintiffs argue that they are challenging the same unlawful conduct (the Tenant
System) and seeking the same relief as the rest of the putative class. On the second prong, Plaintiffs
argue that their counsel are qualified and that both named Plaintiffs have demonstrated their
commitment to this litigation. Plaintiffs represent that Plaintiff Hogan declined an informal
settlement offer from Sirens while Plaintiff Valentine persisted in the litigation despite being
blacklisted by Defendant House of Babes for doing so.
Defendants argue that Plaintiff Valentine is an inadequate representative because her
signing of the Lease Agreement subjects her claims to mandatory, binding arbitration. Plaintiff
Hogan, Defendants contend, is inadequate because she did not sign the Lease Agreement that the
other putative class members signed.

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To establish adequacy, Plaintiffs must show that they, as “the representative parties[,] will
fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This requirement
“calls for a two-pronged inquiry: (1) the representatives must have common interests with
unnamed members of the class, and (2) it must appear that the representatives will vigorously
prosecute the interests of the class through qualified counsel.” Swigart v. Fifth Third Bank, 288
F.R.D. 177, 185–86 (S.D. Ohio 2012) (quoting Senter v. Gen. Motors Corp., 532 F.2d 511, 525
(6th Cir. 1976)). With respect to the first prong, the Court must be satisfied that “the class members
have interests that are not antagonistic to one another.” Stout v. J.D. Byrider, 228 F.3d 709, 717
(6th Cir. 2000). With respect to the second prong, the Court must be satisfied that “class counsel
are qualified, experienced and generally able to conduct the litigation.” Id.
This Court finds that the first prong is satisfied for the same reason that Plaintiffs
demonstrated commonality and typicality: Plaintiffs allege that they have suffered and seek redress
for the same injuries caused by the same alleged conduct as the putative class members. See In re
Am. Med. Sys., Inc., 75 F.3d at 1083 (explaining that “[t]he adequate representation requirement
overlaps with the typicality requirement because in the absence of typical claims, the class
representative has no incentives to pursue the claims of the other class members.”). As this Court
explained when discussing commonality and typicality, see supra Section III.C.1.b, Plaintiffs
allege that they were injured by Defendants’ collusive adoption of a system which resulted in their
failure to pay them or the potential class members. Plaintiffs importantly argue that the Tenant
System was enforced against Plaintiff Hogan although she never signed the Lease Agreement.
Whether Plaintiff Hogan signed a Lease Agreement is thus immaterial to the question of whether
she suffered the same injuries as the putative class members. Whether Plaintiff Valentine’s claims
are subject to arbitration requires the resolution of a factual dispute that is immaterial to this

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analysis. Further, this Court has explained that it lacks presently the ability to determine whether
arbitration is compelled at this time. See supra Section III.A. Besides, Plaintiff Valentine raises
the defense that Defendants may have waived the issue of arbitration by failing to invoke it earlier
in the litigation. It is also likely that several other potential class members will similarly face the
defense that their agreements compel their claims to mandatory arbitration. The first prong is thus
satisfied.
This Court next considers the second prong. The named Plaintiffs have remained involved
in this case. Further, Plaintiffs’ counsel have demonstrated their ability to prosecute this matter.
Although this Court has occasionally criticized Plaintiffs’ counsel for failing to justify certain
discovery-related requests (See, e.g., ECF No. 410), this Court also notes that Plaintiffs’ counsel
have vigorously litigated this matter for nearly eight years. Plaintiffs’ counsel have successfully
negotiated a settlement with Sirens (See ECF No. 350) and have filed and responded to a litany of
motions in this matter. This Court thus finds “Plaintiffs’ counsel [] sufficiently qualified and
experienced and thus capable of serving as class counsel.” Young, 693 F.3d at 544.
d. Ascertainability
While Rule 23(a) does not contain an express requirement of ascertainability, the Sixth
Circuit has held it to be an “implicit requirement” of class certification. Cole, 839 F.3d at 541. The
determination that a class is ascertainable “requires only the existence of objective criteria upon
which class membership is based.” McNamee v. Nationstar Mortg., LLC, No. 2:14-CV-1948, 2018
WL 1557244, at *4 (S.D. Ohio Mar. 30, 2018) (citing Young, 693 F.3d at 538–39). A previous
ruling by this Court provides an instructive example:
To illustrate the difference between ascertainability and susceptibility to
individualized inquiry, consider, for example, a class defined as “all people in the
State of Ohio who currently have a pint of mint chocolate chip ice cream in the

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freezer.” Such a class is certainly ascertainable: every Ohioan either is a class
member, or she is not. The inquiry is an objective one.
Id. In essence, the ascertainability requirement necessitates “a class description [that is]
sufficiently definite so that it is administratively feasible for the court to determine whether a
particular individual is a member.” Cole, 839 F.3d at 541.
Defendants argue that the proposed class is not ascertainable because the class definition
includes members who have not suffered an injury, including putative members whose claims are
barred by the applicable statutes of limitations. According to Defendants, the applicable statutes
of limitations for Plaintiffs’ claims range from one to six years. Further, Defendants contend,
Plaintiffs cannot demonstrate that ascertaining class members would be reliable and
administratively feasible given that they do not have the relevant employment records. Plaintiffs
respond that limitations arguments are merits-based and are thus not germane to the issue of class
certification. Concerning whether ascertaining class members would be reliable and
administratively feasible, Plaintiffs argue that Defendants have wrongfully withheld or destroyed
the records from which class membership could be ascertained.
Given the record, this Court is satisfied that Plaintiffs’ defined class is sufficiently definite.
Plaintiffs’ class comprises all individuals who danced at the clubs named as Defendants in this
case, “from May 14, 2014 to the present,” while those clubs “formally regarded [their] dancers as
leasing space at such club[s] as entertainers and required them to acknowledge the same,” and
“while such club[s] did not pay any wages to [their] dancers.” (ECF No. 396 at 2).
Contrary to Defendants’ argument, this Court finds simple the relevant inquiry for
determining whether a putative class member is covered by the class definition. The first question
is whether the putative class member worked for a club Defendant while dancers were allegedly
required to lease space. The second question is whether said club failed to pay wages to the dancer
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at any point during her employment. If the putative class member’s answer to both questions is
“yes,” she is covered by the class definition (if she worked for the club during the dates covered
by the class definition). Although the parties mutually acknowledge Plaintiffs’ limited access to
employment records, Defendants do not dispute Plaintiffs’ allegations that they failed to pay the
potential class members—they merely argue that they had the legal capability not to pay them.
This Court next considers Defendants’ argument that Plaintiffs’ class definition includes
potential class members whose claims would be time-barred. In American Pipe & Construction
Company v. Utah, the Supreme Court found that “the commencement of a class action suspends
the applicable statute of limitations as to all asserted members of the class who would have been
parties had the suit been permitted to continue as a class action.” 414 U.S. 538, 555 (1974). This
decision stands for the proposition that, “[w]hen a class is certified, the class members’ claims are
deemed to relate back to the filing of the class action complaint.” Clark, 2023 WL 3559657, at *6
(Bush, J., concurring). The Ohio Supreme Court applied the holding in American Pipe to “the
filing of a class action, whether in Ohio or the federal court system[.]” Vaccariello v. Smith &
Nephew Richards, Inc., 94 Ohio St.3d 380, 382–83, 763 N.E.2d 160, 163 (2002). Here, Plaintiffs’
original class action complaint was filed on October 6, 2015. (ECF No. 1). Plaintiffs’ proposed
class definition covers only individuals who commenced work on or after May 14, 2014. (ECF
No. 396 at 2). Given that the putative class members would be able to proceed on at least most of
the claims brought by the named Plaintiffs, Defendants’ statute of limitations defense fails.
This Court thus finds that the ascertainability prong is met.
2. Class Certification—Rule 23(b)(3)
Because Plaintiffs seek to certify this class under Rule 23(b)(3), this Court must analyze
whether: (1) questions of law or fact common to members of the class predominate over questions

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affecting individual members; and (2) the class action is a superior method to others for the fair
and efficient adjudication of the controversy. Fed. R. Civ. P. 23(b)(3).
a. Predominance
To obtain class certification, Plaintiffs must show that common questions of fact or law
predominate over individual questions. Fed. R. Civ. P. 23(b)(3).
Plaintiffs argue that predominance is met in this case because Defendants’ liability turns
on whether, under the Tenant System and/or the Lease Agreement, the dancers are considered
“employees” and are thus entitled to minimum wage protections.
Defendants respond that individualized issues in this case are so numerable as to make trial
in this matter unmanageable. Specifically, Defendants contend, determining whether a given
performer earned compensation below minimum wage is difficult because dancers’ compensation
levels varied. According to Defendants, determining damages would depend on such
individualized issues as whether a dancer signed the contract, which statutes of limitations apply,
and what the dancer’s compensation was.
The Sixth Circuit has observed that, “[t]o satisfy the predominance requirement in Rule
23(b)(3), a plaintiff must establish that the issues in the class action that are subject to generalized
proof, and thus applicable to the class as a whole, . . . predominate over those issues that are subject
only to individualized proof.” Bridging Communities Inc. v. Top Flite Fin. Inc., 843 F.3d 1119,
1124–25 (6th Cir. 2016) (quoting Beattie v. CenturyTel, Inc., 511 F.3d 554, 564 (6th Cir. 2007).
“A class may be certified based on a predominant common issue ‘even though other important
matters will have to be tried separately, such as damages or some affirmative defenses peculiar to
some individual class members.’” Hicks v. State Farm Fire & Cas. Co., 965 F.3d 452, 460 (6th
Cir. 2020).

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There are two major considerations in this case with respect to damages: (1) whether, and
to what extent, the putative class members were entitled to being paid as employees; and (2) what
amount is owed to the putative class members in back wages and other compensation. As this
Court has already determined, whether the putative class members signed the Lease Agreement or
any other contract is immaterial. This Court has already considered the impact of the applicable
statutes of limitations upon this matter. See supra Section III.C.1.d. At any rate, “the fact that a
defense may arise and may affect different class members differently does not compel a finding
that individual issues predominate over common ones.” Young, 693 F.3d at 544. Although true
that this case presents some individualized damage issues, it is also true that liability can be
determined on a class-wide basis.” Beatty, 511 F.3d at 564 (providing that “[c]ommon issues may
predominate when liability can be determined on a class-wide basis, even when there are some
individualized damage issues.”); Weinberg v. Insituform Techs., Inc., No. 93-2742 G/BRO, 1995
WL 368002, at *7 (W.D. Tenn. Apr. 7, 1995) (explaining that “[p]redominance is usually decided
on the question of liability, so that if the liability issue is common to the class, common questions
are held to predominate over individual ones.”).
This Court thus finds that predominance is met in this case.
b. Superiority
This Court’s consideration of superiority concerns whether a class action is the superior
means of adjudication. Fed. R. Civ. P. 23(b)(3); Bentley v. Honeywell Int'l, Inc., 223 F.R.D. 471,
488 (S.D. Ohio 2004) (Marbley, J.).
Plaintiffs argue that the small relative size of each individual claim makes this case the
only way for the potential class members realistically to recover their unpaid pages. Additionally,
Plaintiffs contend, efficiency militates in favor of concentrating the claims here because there is

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no record of similar litigation in Ohio. According to Plaintiffs, this litigation should be
concentrated in this forum because this case concerns pay policies affecting a large number of
employees, and a final resolution here would avoid competing decisions on the issues presented
herein. Finally, Plaintiffs contend, this case will not present management difficulties because the
proposed class is a defined size.
Defendants argue that the issues presented in this case are too individualized to warrant the
conclusion that a class action is the best way to resolve Plaintiffs’ claims.
The superiority requirement “aims to achieve economies of time, effort, and expense, and
promote . . . uniformity of decision as to persons similarly situated, without sacrificing procedural
fairness or bringing about other undesirable results.” Martin v. Behr Dayton Thermal Prod. LLC,
896 F.3d 405, 415 (6th Cir. 2018) (internal quotations omitted). Rule 23(b)(3) lists four factors to
be considered in determining the superiority of proceeding as a class action compared to other
methods of adjudication: (1) the interests of the members of the class in individually controlling
the prosecution of separate actions; (2) the extent and nature of other pending litigation about the
controversy by members of the class; (3) the desirability of concentrating the litigation in a
particular forum; and (4) the difficulties likely to be encountered in management of the class action.
Fed. R. Civ. P. 23(b)(3); Myers v. Marietta Mem'l Hosp., No. 2:15-CV-2956, 2018 WL 4932087,
at *9 (S.D. Ohio Sept. 10, 2018).
This Court finds that a class action is the superior method of litigating this matter. The very
fact that this case has been ongoing for nearly eight years, combined with the relatively small size
that each individual claim will be worth, demonstrates that individuals would have minimal
incentives to prosecute this matter alone. That there is no competing litigation concerning
Plaintiffs’ claims militates in favor of concentrating the claims here and providing a final

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adjudication of Defendants’ liability resulting from Plaintiffs’ claims. Further, Defendants are
centralized within the geographical reach of this district. The alleged misdeeds also took place
within the jurisdiction of this district. Finally, this Court does not note any evidence indicating that
a class action would present management difficulties to Plaintiffs. The alleged misdeeds also took
place within the jurisdiction of this district. For these reasons, the superiority factors weigh in favor
of class certification.
Because “certification of a class is appropriate if it qualifies under at least one of the
subdivisions of Rule 23(b),” this Court does not consider whether certification is appropriate under
the other two subdivisions. Thrope v. State of Ohio, 173 F.R.D. 483, 490 (S.D. Ohio 1997) (citing
In re Am. Med. Sys., Inc., 75 F.3d at 1079). It is sufficient for class certification purposes that
Plaintiffs have satisfied Rule 23(b)(3).
IV.

CONCLUSION

For the foregoing reasons, this Court GRANTS Plaintiffs’ Motion to Certify as a
Collective Action, a Rule 23 Class Action, and to Send Notice. (ECF No. 396). This Court’s ruling
certifies the class under subsection 23(b)(3) of the Federal Rules of Civil Procedure. This Court’s
ruling also grants Plaintiffs’ request for FLSA court-facilitated notice, subject to the conditions of
this Opinion and Order.
IT IS SO ORDERED.
ALGENON L. MARBLEY
CHIEF UNITED STATES DISTRICT JUDGE
DATED: September 6, 2023

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