Smith v. Generations Healthcare Services LLC

Filing 46

ORDER granting 19 Motion to Certify Class; finding as moot 30 Motion to Expedite; finding as moot 32 Motion for Extension of Time to Complete Discovery. The parties are ORDERED to confer on the form of notice and submit agreed proposed Noti ce and Consent-to-Sue forms within 14 days of the date of this Order. Once notice is approved, Defendants must provide a class list to Plaintiffs counsel within 14 days, and notice may then be distributed to putative class members by regular mail and e-mail. Notice may also be posted at Defendants facilities if necessary. The opt-in period should last 90 days. Levin Papantonio and Johnson Becker are appointed as interim class counsel. Signed by Judge Algenon L. Marbley on 7/11/2017. (cw)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DEANGELA SMITH, individually and
on behalf of all similarly-situated individuals,
Plaintiffs,
v.
GENERATIONS HEALTHCARE
SERVICES LLC, et al.,
Defendants.

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Case No. 2:16-CV-807
JUDGE ALGENON L. MARBLEY
Magistrate Judge Vascura

OPINION AND ORDER
This matter is before the Court on Plaintiff DeAngela Smith’s Motion for Conditional
Certification and Notification of all Putative Class Members under 29 U.S.C. § 216(b). (Docs.
19, 20.)

Also pending is Plaintiff’s Motion to Expedite Consideration of her Motion for

Conditional Class Certification (Doc. 30), which was filed on May 18, 2017, and Plaintiff’s
Motion for Extension of Time to Complete Discovery. (Doc. 32.) The Court held a hearing on
Plaintiff’s Motion for Conditional Certification on June 29, 2017. For the reasons set forth
below, Plaintiff’s Motion for Conditional Certification is GRANTED, and Plaintiff’s Motion to
Expedite and Motion for Extension of Time are now MOOT.
I.

BACKGROUND

Plaintiff brings this action for wage and hour violations under the Fair Labor Standards
Act (“FLSA”) and related Ohio laws, on behalf of herself and individuals employed by
Defendants Generations Healthcare Services, LLC and/or Generations Too, LLC (“Defendants”)
as registered nurses, licensed practical nurses, physical and occupational therapists, and home
health aides since after January 1, 2015. (Second Am. Compl., Doc. 43; Mem. in Support of
Mot. for Conditional Class Cert., Doc. 20, at 2.) Plaintiff has been employed by Defendants as

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an hourly home health aide (“HHA”) since July 2014. (Doc. 20 at 2.) Her job duties include
light housework and direct patient care.

(See id.)

According to Plaintiff, throughout her

employment, she has regularly worked over 40 hours per workweek, but has not been
compensated at the overtime rate of one and one-half times her regular rate for her excess hours.
(See Doc. 43 ¶¶ 26–28.) Additionally, Plaintiff alleges that hours over 40 per workweek were
not even recorded on her paystubs. (See id. ¶ 32.)
Defendants are Ohio limited liability companies that offer in-home healthcare services in
several Ohio counties. (Doc. 20 at 2.) Plaintiff alleges that Defendants violated the FLSA and
Ohio wage and hour laws by failing to pay Plaintiff and similarly-situated employees overtime at
a wage rate of one and one-half times her regular rate and by failing to maintain and preserve
timesheet and payroll records. (See Doc. 43 ¶¶ 26–32.)
Plaintiff’s Second Amended Complaint asserts causes of action under the FLSA (Count
1); and the Ohio Wage Act (Ohio Rev. Code Chapter 4111) and the Ohio Prompt Pay Act (Ohio
Rev. Code § 4113.15(A)) (Count 2). (See id. ¶¶ 52–74.) Plaintiff asks the Court to certify
conditionally this case as a collective action for unpaid overtime wages under the FLSA.
Specifically, Plaintiff seeks to certify conditionally a class defined as:
All current and former Home Health Aides or other job titles
performing similar job duties (collectively, “HHAs”) employed by
Generations Healthcare Services, LLC and/or Generations Too,
LLC at any time after January 1, 2015, who worked over 40 hours
per week, and were not paid overtime for hours worked over 40 in a
workweek.
(Id. ¶ 39.) Plaintiff also asks the Court to:


Approve her proposed Court-authorized Notice and Consent to Sue form;



Compel Defendants to produce the full names, all known addresses, e-mail addresses,
and telephone numbers of potential class members within 14 days of the Order
granting this Motion;

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

Permit Plaintiff’s counsel to send, within 14 days of receipt of the class list from
Defendants, the Court-authorized Notice and Consent to Sue form via U.S. mail and
e-mail to putative class members;



Require Defendants to post a copy of the Court-authorized Notice in their facilities;



Allow 90 days for putative class members to return their Consent to Sue form to
Plaintiff’s counsel for filing with the Court; and



Appoint Plaintiff’s counsel as counsel for members of the putative class.

(See Doc. 20 at 1–2.) Plaintiff’s Motion is ripe for adjudication.
II.

STANDARD OF REVIEW

The FLSA allows employees to maintain an action on behalf of “themselves and other
employees similarly situated.” 29 U.S.C. § 216(b). Section 216(b) specifies that “[n]o 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.” This means that
putative plaintiffs in FLSA class actions, such as this one, must opt in to the litigation. See
Albright v. Gen. Die Casters, Inc., 5:10-CV-480, 2010 WL 6121689, at *2 (N.D. Ohio July 14,
2010) (“[U]nder the FLSA a putative plaintiff must affirmatively opt-in to the class”); Jackson v.
Papa John’s USA, Inc., No. 1:08-CV-2791, 2009 WL 385580, at *4 (N.D. Ohio Feb. 13, 2009)
(same). In short, 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 an FLSA collective action does not toll the statute of
limitations for putative class members. Stout v. Remetronix, Inc., No. 3:13-cv-026, 2013 WL
4048241, at *2 (S.D. Ohio Aug. 9, 2013); 29 U.S.C. § 256(b). An FLSA collective action “is
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considered to have commenced as to each individual opt-in plaintiff only when she files written
consent to join the action.” Myers v. Marietta Mem’l Hosp., 201 F. Supp. 3d 884, 897 (S.D.
Ohio 2016) (citing 29 U.S.C. § 256). The distinct “opt-in” structure of § 216(b) heightens the
need for employees to “receiv[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 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 v. U.S. Bank
Nat’l Ass’n, No. 11-cv-593, 2012 WL 4463771, at *2 (S.D. Ohio Sept. 27, 2012) (citations
omitted).

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. (quotation omitted). 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.” Id. (quotation omitted).
Whether Plaintiff’s suit may proceed as a collective action pursuant to the FLSA at the
initial notice stage, then, depends on a showing that potential class members are in fact
“similarly situated.” Comer, 454 F.3d at 546. At this stage, the Court “does not generally
consider the merits of the claims, resolve factual disputes, or evaluate credibility.” Myers, 201 F.
Supp. 3d at 890 (internal citations omitted). The FLSA does not explicitly define the term

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“similarly situated,” and neither has the Sixth Circuit. Wade v. Werner Trucking Co., No. 10-cv280, 2012 WL 5378311, at *3 (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. At this first stage, then, “the plaintiff
must show only that ‘his position is similar, not identical, to the positions held by the putative
class members.’” Comer, 454 F.3d at 546–47 (quoting Pritchard v. Dent Wizard Int’l, 210
F.R.D. 591, 595 (S.D. Ohio 2002)). The Court considers that issue “using a fairly lenient
standard, and typically [the determination] results in conditional certification of a representative
class.” Id. at 547 (quotation omitted).
III.

ANALYSIS

There are three issues before the Court in this first-stage analysis: (1) the appropriateness
of conditional certification under the FLSA; (2) the propriety of Plaintiff’s proposed notice; and
(3) whether Plaintiff’s counsel should be appointed class counsel in this action. The Court will
address each issue in turn.
A. Conditional Certification
Plaintiff seeks FLSA conditional certification with respect to the following class:
All current and former Home Health Aides or other job titles
performing similar job duties (collectively, “HHAs”) employed by
Generations Healthcare Services, LLC and/or Generations Too,
LLC at any time after January 1, 2015, who worked over 40 hours
per week, and were not paid overtime for hours worked over 40 in a
workweek.

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(Doc. 43 ¶ 39.)

Plaintiff argues that she has met the requirements for FLSA conditional

certification by offering “substantial allegations that surpass the modest showing required at
stage one.” (Doc. 20 at 6.) Specifically, Plaintiff points to the allegations in her Second
Amended Complaint and her declaration that Plaintiff and the putative class members had the
same job duties, regardless of their formal job titles; and that Defendants treated all HHAs the
same by subjecting them to the same company-wide policies of failing to report hours worked in
excess of 40 per workweek on their HHA paystubs and failing to pay them overtime premiums in
violation of the FLSA. (See id.)
Additionally, although Plaintiff did not submit this evidence with her class certification
Motion, attached as an exhibit to her Motion to Expedite are excerpts from the deposition
testimony of Defendants’ corporate representative, Sabatha Umoette. (See 30(b)(6) Dep. of
Sabatha Umoette, Doc. 30-1.)

At her deposition, Ms. Umoette testified that: (1) she was

unaware of the federal law requiring overtime pay; (2) Defendants do not pay the required
overtime premium; (3) she was not aware of the change in the law effective January 1, 2015 that
mandated overtime pay for home health workers; (4) Defendants have not done anything to
change their pay practices since the change in the law because they “didn’t think they were doing
anything wrong”; and (5) all HHAs are “paid in the same manner, all subject to the same rules,
the same time sheet, the same procedures, the same office manager.” (See id. at 37:3–8, 37:21–
38:6, 39:3–8, 41:13–19, 71:19–23.) Ms. Umoette also testified that Defendants never accepted
employee time sheets with over 40 hours per workweek. (See id. at 66:15–20.)
Based on this evidence, Plaintiff argues that she has shown that she and putative class
members “are similarly situated because they were hourly, non-exempt employees of Defendants
who share similar duties and responsibilities and were victims of Defendants’ same policy,

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decision, and practice to deny them premium overtime wages for hours worked in excess of 40
per workweek,” and that is “all that is needed for conditional certification at this notice stage.”
(Id.)
Defendants counter that Plaintiff has not met her burden of showing that she and other
potential class members are “similarly situated” because she has not: (1) identified potential
plaintiffs or provided affidavits from potential plaintiffs; or (2) provided sufficient evidence of a
common policy or plan that violated the FLSA. (See Mem. Opp’n to Pl.’s Mot. for Conditional
Class Cert., Doc. 22, at 4–7.) Defendants correctly note that Plaintiff asks the Court to grant
conditional certification based solely on her declaration and the allegations presented in her
Second Amended Complaint—although, as discussed above, Plaintiff provided additional
information with her Motion to Expedite. (See id. at 4.)
As this Court has explained, “[s]ome courts hold that a plaintiff can demonstrate that
potential class members are ‘similarly situated,’ for purposes of receiving notice, based solely
upon allegations in a complaint of class-wide illegal practices.” Pritchard, 210 F.R.D. at 595
(quoting Belcher v. Shoney’s, Inc., 927 F. Supp. 249, 251 (M.D. Tenn. 1996)). “[O]ther courts
hold that a plaintiff meets this burden by demonstrating some factual support for the allegations
before issuance of notice.” Id. at 595–96 (quoting Belcher, 927 F. Supp. at 251). Such a
showing, however, need only be “modest,” sufficient to establish at least a colorable basis for a
plaintiff’s claim that a class of “similarly situated” plaintiffs exist. Id. (citing Severtson v.
Phillips Beverage Co., 137 F.R.D. 264, 266–67 (D. Minn. 1991)). Courts requiring a factual
showing have considered factors such as “whether potential plaintiffs were identified; whether
affidavits of potential plaintiffs were submitted; whether evidence of a widespread
discriminatory plan was submitted; and whether as a matter of sound class management, a

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manageable class exists.” Lewis v. Huntington Nat’l Bank, 789 F. Supp. 2d 863, 868 (S.D. Ohio
2011) (Marbley, J.) (quotation omitted).
Although the standard used to evaluate whether conditional certification under the FLSA
is appropriate is a “fairly lenient” one, Plaintiff still barely meets this minimal standard. See
Comer, 454 F.3d at 547. As Defendants point out, and Plaintiff acknowledges, Plaintiff’s
Motion for conditional certification is supported solely by the allegations in her Second
Amended Complaint and in her declaration. (See Doc. 22 at 4; Pl.’s Reply in Support of Mot. for
Conditional Class Cert., Doc. 27, at 3.) In her Second Amended Complaint, Plaintiff alleges that
the class of employees on behalf of whom she brings this action are “similarly situated” because:
(a) they have been or are employed in the same or similar positions; (b)
they were or are subject to the same or similar unlawful practices, policy,
or plan (namely, Defendants’ policy of not paying their employees
overtime at a rate of one-and-one-half times their regular rate); (c) their
claims are based on the same factual and legal theories; and (d) the
employment relationship between Defendants and every putative [c]lass
member is exactly the same and differs only by name, location, and rate
of pay.
(Doc. 43 ¶ 40.) But Plaintiff alleges only “[u]pon information and belief” that there are other
HHAs who performed uncompensated overtime hours. (Id. ¶ 41.) And in her declaration,
Plaintiff merely states that she is “aware” of other HHAs who performed the same or similar
duties and were also subjected to Defendants’ compensation policies which resulted in HHAs not
being paid overtime. (See Doc. 20-1 ¶ 8.)
This Court has noted that a plaintiff “must demonstrate a factual nexus—that is,
something more than ‘bare allegations’—to warrant conditional certification.” O’Neal v. Emery
Fed. Credit Union, No. 1:13CV22, 2014 WL 6810689, at *5 (S.D. Ohio Dec. 3, 2014) (quotation
omitted). Indeed, in the majority of cases, this Court has required more than allegations in the
complaint and a single plaintiff’s affidavit to conditionally certify an FLSA class. See, e.g.,

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Lewis, 789 F. Supp. 2d at 868 (Marbley, J.) (conditionally certifying FLSA class based on
allegations in complaint, declarations of multiple named plaintiffs, and affidavit of defendant’s
general counsel); Crescenzo v. O-Tex Pumping, LLC, No. 15-CV-2851, 2016 WL 3277226, at *4
(S.D. Ohio June 15, 2016) (Marbley, J.) (granting motion for conditional certification supported
by declaration of named plaintiff and declarations of twenty-two additional employees subject to
same compensation policies); Jasper v. Home Health Connection, Inc., No. 2:16-cv-125, 2016
WL 3102226, at *1 (S.D. Ohio June 1, 2016) (granting motion for conditional certification
supported by declarations of nine named plaintiffs); Atkinson v. TeleTech Holdings, Inc., No.
3:14-cv-253, 2015 WL 853234, at *3 (S.D. Ohio Feb. 26, 2015) (conditionally certifying FLSA
class based on declarations from twelve potential plaintiffs).
The Northern District of Ohio has, on the other hand, recognized that at the notice stage,
the district court has “minimal” evidence and makes its conditional certification decision
“usually based only on the pleadings and any affidavits which have been submitted.” Douglas v.
GE Energy Reuter Stokes, No. 1:07CV077, 2007 WL 1341779, at *4 (N.D. Ohio Apr. 30, 2007)
(emphasis added). Further, in at least one instance, this Court has found that a plaintiff met his
burden of showing that he was “similarly situated” to the employees he sought to represent
simply by alleging in his complaint that there were “numerous paintless dent removal
technician’s [sic] employed by Defendant in Ohio, that all of these technicians were paid on a
commission basis, and Defendant did not pay these technician’s [sic] overtime.”1 Pritchard, 210
F.R.D. at 596.
Plaintiff has met the bare minimum standard applied by the Pritchard and Douglas
courts. Construing Plaintiff’s allegations generously, she has made a “modest” factual showing
establishing “at least a colorable basis” for her claim that a class of similarly-situated plaintiffs
1

Pritchard involved a Rule 12(b)(6) motion to dismiss, not a motion for conditional certification.

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exist through the allegations in her Second Amended Complaint and her sworn declaration. See
id. (quotation omitted). As Plaintiff correctly points out, while her allegations are less than
fulsome, to question how she became aware of other HHAs employed by Defendants who were
not paid overtime is to inquire into Plaintiff’s credibility—which the Court typically does not
undertake at the conditional certification stage. See Myers, 201 F. Supp. 3d at 890 (internal
citations omitted); see also Swigart v. Fifth Third Bank, 276 F.R.D. 210, 214 (S.D. Ohio 2011).
Moreover, although not presented with her class certification Motion, the deposition
testimony of Ms. Umoette provides additional evidence to support the fact that a class of
similarly-situated plaintiffs exist. Ms. Umoette conceded that Defendants’ payment policy of
paying no overtime premium applies uniformly to all of the companies’ HHAs, and also that
Defendants have a policy of not accepting any timesheets with more than 40 hours per workweek
recorded. (See Doc. 30-1 at 71:19–23, 66:15–20.) Presumably, there is more than one HHA
employed by Defendants. Therefore, with this extra evidence, Plaintiff has provided the factual
nexus necessary to warrant conditional certification.
Plaintiff’s Motion for conditional certification is GRANTED.2
B. Class Notice
Having determined that conditional certification is warranted, the Court turns now to the
form and manner of Plaintiff’s proposed notice. Plaintiff requests that the Court: (1) approve her
proposed Notice and Consent-to-Sue form; (2) order Defendants to produce a class list; (3) allow
Plaintiff’s counsel to disseminate the Notice and Consent-to-Sue form within 14 days of receipt
2

Whether Plaintiff’s proposed class should be certified conditionally under the FLSA is a close question.
As previously stated, the evidence provided by Plaintiff—particularly without the deposition testimony of
Ms. Umoette—barely meets the lenient standard for conditional certification. However, after balancing
the equities of the case, the Court determines that it would be easier for Defendants to attempt to decertify
the class than for Plaintiff to engage in further discovery and re-file a Motion for Conditional
Certification. While Plaintiff’s counsel certainly did not put forth the most valiant effort to engage in
discovery, the putative class members should not be punished for this laxity.

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of the class list from Defendants; (4) permit the dissemination of notice via e-mail; (5) order
notice to be posted at Defendants’ company facilities; and (6) approve a 90-day opt-in period.
(See Doc. 20 at 7–12.) The Court will address these requests seriatim.
1. Contents of Notice and Consent-to-Sue Forms
As threshold matter, Defendants argue that Plaintiff’s request to disseminate notice is
“premature” given that she has not met her burden for conditional certification, but that if the
Court does conditionally certify a class, “the limitations period should be two years because
Plaintiff has failed to provide any basis for a willful violation.” (Doc. 22 at 9–10.) The FLSA
establishes a general two-year statute of limitations, but a cause of action arising out of a
“willful” violation of the act increases the statute of limitations to three years.

29

U.S.C. § 255(a). A violation of the FLSA is “willful” when an employer either “kn[ows] or
show[s] reckless disregard as to whether its conduct was prohibited by the statute.” McLaughlin
v. Richland Shoe Co., 486 U.S. 128, 130 (1988). Whether Defendants’ alleged FLSA violations
are “willful” is a question better suited for a later stage of the litigation. See, e.g., Stanley v.
Turner Oil & Gas Props., Inc., No., 2017 WL 127481 at *9 (S.D. Ohio Jan. 13, 2017) (using
three-year limitations period for willful violations at notice stage); Colley v. Scherzinger Corp.,
176 F. Supp. 3d 730, 735 (S.D. Ohio 2016) (finding the absence of willful conduct not
established by the pleadings at the notice stage and using a three-year limitations period).
Accordingly, the Court should use a three-year limitations period and reject any of Defendants’
objections to the form of notice based on its reference to a three-year statute of limitations. (See
Doc. 22 at 11–12.)
As for the remainder of Defendants’ objections to Plaintiff’s proposed notice, “[b]oth the
parties and the court benefit from settling disputes about the content of the notice before it is

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distributed.” Hoffman-LaRoche, 493 U.S. at 172. Accordingly, the parties are ORDERED to
meet and confer about the content of Plaintiff’s proposed Notice and Consent-to-Sue forms and
resolve all objections to the extent possible. Plaintiff must file an updated proposed notice, and
Defendants must lodge any remaining objections to that proposed notice within 14 days of the
date of this Order.
2. Defendants’ Production of Class List and E-mail Notice
Plaintiff asks the Court to order Defendants to produce a list of all putative class
members to Plaintiff’s counsel, which should include the following information about putative
class members: (1) each employee’s full name; (2) all known addresses; (3) e-mail addresses;
and (4) telephone numbers. (Doc. 20 at 8.) Defendants object to disclosing telephone numbers
and e-mail addresses of current and former employees, for privacy reasons. (Doc. 22 at 12–13.)
Additionally, Plaintiff asks the Court to permit notice via e-mail to former employees in addition
to ordinary mail. (Doc. 20 at 9.)
The Court finds that e-mail notice is warranted. It had been the common practice in this
district to order notice to be sent by first-class mail to current employees and by first-class mail
and electronic mail to former employees due to concerns that former employees may have
moved after the conclusion of their employment. See, e.g., Lutz v. Huntington Bancshares, Inc.,
No. 2:12-cv-1091, 2013 WL 1703361, at *7 (S.D. Ohio Apr. 19, 2013); Wolfram v. PHH Corp.,
No. 1:12-cv-599, 2012 WL 6676778, at *4 (S.D. Ohio Dec. 21, 2012) (noting that e-mail notice
to former employees “appropriately safeguards the privacy of individuals not currently a party to
the case and helps ensure that all potential plaintiffs receive notice of their right to join this
lawsuit”); Swigart, 276 F.R.D. at 215. In more recent cases, however, courts in this district have
ordered e-mail notice to all putative class members. See Atkinson, 2015 WL 853234, at *5; Petty

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v. Russell Cellular, Inc., No. 2:13-cv-1110, 2014 WL 1308692, at *6 (S.D. Ohio Mar. 28, 2014).
This Court agrees with the Atkinson court, which held that e-mail notice “appears to be in line
with the current nationwide trend” and “advances the remedial purpose of the FLSA, because
service of the notice by two separate methods increases the likelihood that all potential opt-in
plaintiffs will receive notice of the lawsuit.” Atkinson, 2015 WL 853234, at *5. This is also
consistent with the trend among courts nationwide. See, e.g., Kutzback v. LMS Intellibound,
LLC, No. 2:13-cv-2767, 2015 WL 1393414, at *6 (W.D. Tenn. Mar. 25, 2015); Jones v. JGC
Dallas LLC, No. 3:11-cv-2743-O, 2012 WL 6928101, at *5 (N.D. Tex. Nov. 29, 2012), adopted
by 2013 WL 271665 (N.D. Tex. Jan. 23, 2013); Lewis v. Wells Fargo & Co., 669 F. Supp. 2d
1124, 1128–29 (N.D. Cal. 2009).
Therefore, once the Court approves the parties’ agreed-upon Notice and Consent-to-Sue
form, Plaintiff is permitted to disseminate the notice via regular mail and e-mail to all putative
class members. There appears to be no need for Plaintiff to have the telephone numbers of
putative class members. Defendants must produce the names, all known addresses, and e-mail
addresses of putative class members within 14 days of this Court’s order approving Plaintiff’s
updated notice.
3. Posting of Notice at Defendants’ Facilities
Plaintiff also requests that notice be posted at Defendants’ company facilities. (Doc. 20
at 10.) Because this is a common practice, and Defendants do not object, the Court approves this
form of notice. See, e.g., Denney v. Lester’s LLC, No. 4:12CV377, 2012 WL 3854466, at *4
(E.D. Mo. Sept. 5, 2012).

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4. 90-day Opt-in Period
Finally, Plaintiff asks the Court to approve a 90-day opt-in period, in light of the fact that
“Plaintiff and the putative [c]lass are employees of an industry with a high turnover rate” and
therefore Plaintiff’s counsel “anticipates significant difficulties in locating all potential class
members.” (Doc. 20 at 11–12.) Defendants have no objection to a 90-day opt-in period, and
because 90 days is a standard notice period and fair in this case, the Court approves a 90-day
notice period. See, e.g., Wolfram, 2012 WL 6676778, at *4 (granting 90-day notice period);
Musarra v. Digital Dish, Inc., No. C2-05-545, 2008 WL 818692, at *7 (S.D. Ohio Mar. 24,
2008) (same).
C. Class Counsel
Plaintiff asks the Court to appoint the law firms of Levin Papantonio, Thomas, Mitchell,
Rafferty & Proctor, P.A. (“Levin Papantonio”) and Johnson Becker, PLLC (“Johnson Becker”)
as interim class counsel. (See Doc. 20 at 12.) The appointment of interim class counsel is
governed by Federal Rule of Civil Procedure 23(g)(3), and courts routinely evaluate the factors
in Rule 23(g)(1) when appointing interim class counsel prior to class certification. See Ross v.
Jack Rabbit Servs., LLC, No. 3:14-CV-00044, 2014 WL 2219236, at *5 (W.D. Ky. May 29,
2014). These factors include:
(i) the work counsel has done in identifying or investigating potential claims in the
action;
(ii) counsel’s experience in handling class actions, other complex litigation, and the types
of claims asserted in the action;
(iii) counsel’s knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class;
Fed. R. Civ. P. 23(g)(1). In addition, a court may consider whether counsel can fairly and
adequately represent the interests of the class. Id. 23(g)(4); see also Ross, 2014 WL 2219236, at
*5.

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Case: 2:16-cv-00807-ALM-CMV Doc #: 46 Filed: 07/11/17 Page: 15 of 15 PAGEID #: 637

All of the Rule 23(g)(1) factors appear to be met here, and Defendants do not challenge
Plaintiff’s request to appoint her counsel as interim class counsel. Plaintiff attached the resumes
of Levin Papantonio and Johnson Becker as exhibits to her Motion for conditional certification.
(See Docs. 20-3, 20-4.) Both firms have significant experience, and would fairly and adequately
represent the class. Thus, Plaintiff’s counsel is hereby appointed as interim class counsel.
IV.

CONCLUSION

For the reasons stated above, Plaintiff’s Motion (Docs. 19, 20) to certify conditionally
this case as a collective action under the FLSA is GRANTED.
The Court ORDERS the parties to confer on the form of notice and submit agreed
proposed Notice and Consent-to-Sue forms within 14 days of the date of this Order. Once notice
is approved, Defendants must provide a class list to Plaintiff’s counsel within 14 days, and
notice may then be distributed to putative class members by regular mail and e-mail. Notice may
also be posted at Defendants’ facilities if necessary. The opt-in period should last 90 days.
Levin Papantonio and Johnson Becker are appointed as interim class counsel.

IT IS SO ORDERED.

s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
Dated: July 11, 2017

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