Freeman et al v. Smith et al
Filing
170
OPINION AND ORDER. For these reasons, the Court sustains in part and overrules in part Defendants' objections to Plaintiffs' proposed collective action notice (ECF No. 165 ). Plaintiffs' counsel shall incorporate the approved c hanges discussed herein and obtain approval on the revised notice from Defendants' counsel prior to circulating the notice. If any disputes remain, counsel shall contact the Court to schedule a telephonic conference. Signed on 1/19/2022 by Magistrate Judge Stacie F. Beckerman. (gw)
Case 3:18-cv-00372-SB
Document 170
Filed 01/19/22
Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CAROL FERGUSON and LYNDA
FREEMAN, on behalf of themselves and, in
addition, on behalf of others similarly situated,
Case No. 3:18-cv-00372-SB
OPINION AND ORDER
Plaintiffs,
v.
MARIA SMITH, an individual; GLADSTONE
AUTO, LLC, an Oregon limited liability
company; and CARROS, INC., an Oregon
corporation,
Defendants.
BECKERMAN, U.S. Magistrate Judge.
This matter comes before the Court on plaintiffs Carol Ferguson and Lynda Freeman’s
(together, “Plaintiffs”) motion for approval of their collective action notice (ECF No. 165).
Defendants Maria Smith, Gladstone Auto, LLC, and Carros, Inc. (together, “Defendants”) object
to several aspects of Plaintiffs’ proposed collective action notice (ECF No. 166). For the reasons
discussed below, the Court sustains in part and overrules in part Defendants’ objections.
As an initial matter, the Court overrules Defendants’ objections to sending the notice and
receiving opt-ins via electronic media in addition to U.S. mail. Email, text, and website
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Case 3:18-cv-00372-SB
Document 170
Filed 01/19/22
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communications increase the likelihood of reaching potential members of the collective action
(especially during a global pandemic), and there is no serious risk of multiple entries by a single
individual nor phantom entries in light of the relatively small and readily identifiable collective.
With respect to Defendants’ objections to the proposed notice language, the Court
addressees each objection herein:
Number
1
Relevant Language
“A federal court authorized
this notice. This is not a
solicitation from a lawyer.”
Disposition
Sustained in
part.
Add Maria Smith
“You have to decide
whether to join this
collective action.”
“share in” should be “join”
Sustained
Sustained
Sustained
2
“You will not be penalized
in any way for joining this
action.”
Adding date
3
Several proposed changes
4
First sentence
Sustained in
part
“in the amount of $7.25”
Sustained
“an extra 50% of their
regular wage rate for all
hours over 40 in a week”
Sustained
PAGE 2 – OPINION AND ORDER
Sustained
Sustained in
part
N/A
Explanation
Approved language: “A federal
court authorized this notice.” The
approved language is accurate. The
second sentence should be
excluded because the notice is, in
fact, a solicitation by Plaintiffs’
counsel to join the collective action
and to be represented by Plaintiffs’
counsel.
Accuracy
Defendants’ proposed language is
more clear.
Defendants’ proposed language is
more clear.
Defendants’ proposed language is
more accurate.
The Court approves the language
Plaintiffs suggest in their reply.
Plaintiffs agree to the proposed
changes, as noted in their reply.
Approved language: “Lynda
Freeman and Carol Ferguson claim
that Defendants paid some
paychecks after the regular payday,
and further claim that when that
happened, Defendants violated
federal law.”
Defendants’ proposed language is
more clear.
Defendants’ proposed language
more accurately reflects the proper
calculation of liquidated damages
under the FLSA. Plaintiffs present
Case 3:18-cv-00372-SB
Number
Document 170
Relevant Language
Disposition
Reference to related state
litigation
Sustained
5
“that their payments to
employees on the next
business day after a
weekend or holiday did not
violate federal law”
Overruled
6
“on the next business day
. . . was on a weekend or
holiday”
Overruled
“eligible to be”
Sustained
Return form to the “claims
administrator”
Website
N/A
7
8
9
Eligibility language
(including “apply to”)
Add “consent to”
PAGE 3 – OPINION AND ORDER
Overruled
Sustained
N/A
Filed 01/19/22
Page 3 of 6
Explanation
no authority for their position that
they are entitled to overtime wages
and liquidated damages for all
hours in the relevant pay period, as
opposed to any hours over 40
hours per week. See 29 U.S.C. §
216(b) (“Any employer who
violates the provisions of section
206 or section 207 of this title shall
be liable to the employee or
employees affected in the amount
of . . . their unpaid overtime
compensation, as the case may be,
and in an additional equal amount
as liquidated damages.”).
If the state court certifies the state
claims, the state notice can explain
the difference between the state
and federal actions. Referencing
the state case here may be
confusing.
Plaintiffs’ proposed language more
accurately reflects their claims.
Whether Defendants paid
employees on the next business
day after a weekend or holiday
remains a disputed fact.
Plaintiffs’ proposed language more
accurately reflects their claims.
Whether Defendants paid
employees on the next business
day after a weekend or holiday
remains a disputed fact.
Defendants’ proposed language is
more clear.
Plaintiffs agree to the proposed
changes.
The Court assumes the website
language will mirror approved
language in the short and long form
notices.
Defendants’ proposed language is
more accurate.
Plaintiffs agree to the proposed
changes.
Case 3:18-cv-00372-SB
Document 170
Number
10
Relevant Language
Defendants’ names
Disposition
Overruled
11
Defendants’ names
N/A
12
Defendants’ names
Overruled
“were issued on the next
business day when the 5th
and 20th of each month fell
on a weekend or holiday”
Overruled
13
Several proposed changes
N/A
14
First sentence
Sustained in
part
15
“that their payments to
employees on the next
business day after a
weekend or holiday did not
violate federal law”
Overruled
16
Plaintiffs’ names
Sustained
17
Plaintiffs’ names
Sustained
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Filed 01/19/22
Page 4 of 6
Explanation
Gladstone Auto, LLC is defined as
“Toyota of Gladstone” and Carros,
Inc. is defined as “Mazda of
Gladstone” earlier in the notice,
and this reference is not confusing.
Plaintiffs agree to the proposed
changes.
Gladstone Auto, LLC is defined as
“Toyota of Gladstone” and Carros,
Inc. is defined as “Mazda of
Gladstone” earlier in the notice,
and this reference should not be
confusing.
Plaintiffs’ proposed language more
accurately reflects their claims.
Whether Defendants paid
employees on the next business
day after a weekend or holiday
remains a disputed fact.
Plaintiffs agree to the proposed
changes.
Approved language: “In the
lawsuit, Lynda Freeman and Carol
Ferguson claim that Defendants
sometimes paid them their
paychecks after the regular payday,
that this violated federal law, and
that they are therefore entitled to
money damages.”
The proposed additional language
is not necessary and does not
accurately state Plaintiffs’ claims.
Whether Defendants paid
employees on the next business
day after a weekend or holiday
remains a disputed fact.
Referring to the plaintiffs by name
is more clear and accurate, and the
addition of the word “either” adds
clarity.
Referring to the plaintiffs by name
is more clear and accurate.
Defendants’ proposed language
“where they are determined to have
been paid late” is also appropriate.
Case 3:18-cv-00372-SB
Document 170
Number
Relevant Language
Liquidated damages
Disposition
Sustained
18-19
Defendants’ names
Overruled
20
“you have to decide”
Sustained
21
Proposed deletion
N/A
22
Website
Overruled
23
Several proposed changes
N/A
24
Proposed addition
N/A
25
Proposed addition
N/A
Filed 01/19/22
Page 5 of 6
Explanation
Defendants’ proposed language
more accurately reflects the proper
calculation of liquidated damages
under the FLSA. Plaintiffs present
no authority for their position that
they are entitled to overtime wages
and liquidated damages for all
hours in the relevant pay period, as
opposed to all hours greater than
40 hours per week. See 29 U.S.C. §
216(b) (“Any employer who
violates the provisions of section
206 or section 207 of this title shall
be liable to the employee or
employees affected in the amount
of . . . their unpaid overtime
compensation, as the case may be,
and in an additional equal amount
as liquidated damages.”).
Gladstone Auto, LLC is defined as
“Toyota of Gladstone” and Carros,
Inc. is defined as “Mazda of
Gladstone” earlier in the notice,
and this reference should not be
confusing.
Defendants’ proposed language is
more clear and accurate.
Plaintiffs agree to the proposed
change.
The Court assumes the website
language will mirror approved
language in the short and long form
notices.
Plaintiffs agree to the proposed
changes.
Plaintiffs agree to the proposed
changes.
Plaintiffs agree to the proposed
changes.
CONCLUSION
For these reasons, the Court sustains in part and overrules in part Defendants’ objections to
Plaintiffs’ proposed collective action notice (ECF No. 165). Plaintiffs’ counsel shall incorporate
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Case 3:18-cv-00372-SB
Document 170
Filed 01/19/22
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the approved changes discussed herein and obtain approval on the revised notice from
Defendants’ counsel prior to circulating the notice. If any disputes remain, counsel shall contact
the Court to schedule a telephonic conference.
DATED this 19th day of January, 2022.
HON. STACIE F. BECKERMAN
United States Magistrate Judge
PAGE 6 – OPINION AND ORDER
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