WINTJEN v. DENNY'S, INC. et al
OPINION. Plaintiff JULI WINTJEN's 89 Motion for Class Certification and 91 Motion for Conditional Certification will be GRANTED as more fully set forth in the attached opinion. Signed by Judge Christy Criswell Wiegand on 11/18/2021. (jmm)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JULI WINTJEN, on behalf of herself and all
others similarly situated,
DENNY'S, INC., DOE DEFENDANTS 110,
In this case, Plaintiff Juli Wintjen is pursuing claims on behalf of herself and other current
and former tipped employees of Defendant Denny’s, Inc. for unpaid wages under both the Fair
Labor Standards Act (“FLSA”) and the Pennsylvania Minimum Wage Act (“PMWA”). After
obtaining judgment in her favor on her individual FLSA claim, see ECF No. 73, Ms. Wintjen now
seeks conditional certification of a proposed FLSA collective under 29 U.S.C. § 216(b) (“FLSA
Motion” and “FLSA Collective”), see ECF No. 91, and certification of a state-wide class under
Federal Rules of Civil Procedure 23(a) and (b)(3) for her PMWA claims (“Rule 23 Motion” and
“Rule 23 Class”), see ECF No. 89.
Ms. Wintjen filed her two-count Complaint on January 22, 2019. See ECF No. 1. In it,
she alleges that Denny’s failed to pay its Pennsylvania “tipped employees”1 the required minimum
Under both the FLSA and PMWA, employers may pay an employee less than the statutory minimum wage if the
employee receives more than $30 per month in tips. See 29 U.S.C. §§ 203(m) and (t); 43 P.S. § 333.103(d) and 34
Pa. Code § 231.1(b). The federal minimum cash wage for tipped employees is $2.13 per hour. See 29 C.F.R. § 531.50.
Pennsylvania, however, mandates a higher minimum cash wage for tipped employees of $2.83 per hour. See 34 Pa.
Code § 231.101.
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wage under the FLSA (Count I) and the PMWA (Count II). See ECF No. 1 ¶¶ 80–86 (Count I—
FLSA), 87–94 (Count II—PMWA). Ms. Wintjen—who worked as a server for Denny’s from
about September through the end of November 2017, see ECF No. 59-2 at 8—claims that these
minimum wage violations happened in two ways: (1) Denny’s failed to properly notify its tipped
employees of the tip credit,2 which both the PMWA and the FLSA require an employer to do
before it can credit tips against an employee’s wages; and (2) that Denny’s’ tipped employees
were required to perform excessive amounts of “side work”—i.e. non-tip generating work—while
being paid sub-minimum wage. See, generally, ECF No. 1. ¶¶ 58–63 (tip credit) and 64–69 (side
This case was transferred to the undersigned on October 23, 2020. See ECF No. 67. At
that time, the parties had already completed an initial phase of discovery “on all topics related to
the merits of Plaintiffs’ claims and potential class membership,” ECF No. 39 ¶ 2; ECF No. 49 ¶
1, and the parties’ cross-motions for summary judgment had been fully briefed. See ECF Nos. 54–
66. Pursuant to the Second Case Management Order issued by then-presiding Judge J. Nicholas
Ranjan, the Court would “set a schedule for briefing on any motions for conditional
certification/class certification and a schedule regarding Phase 2 discovery after its summaryjudgment decision.” ECF No. 49 ¶ 7 (emphasis added).
Accordingly, the Court ruled on the pending motions for partial summary judgment. See
ECF Nos. 72 (Opinion) and 73 (Order).3 After the parties attempted mediation, see ECF Nos. 78
Under both the FLSA and the PMWA, an employer may, in certain circumstances and after meeting certain
prerequisites, pay tipped employees less than the statutory minimum wage. In sum, both laws allow the employer to
count a portion of the tips earned by the employee towards the minimum wage owed by the employer to the employee.
The amount of tips that an employer can or does count against its minimum wage obligation is referred to as the “tip
credit.” See ECF No. 72 at 8–9.
In summary, the Court granted Ms. Wintjen’s Motion for Partial Summary to the extent she sought judgment on her
individual claim that (1) Denny’s failed to comply with the tip credit exception to the FLSA by not providing complete
notice as required and (2) Denny’s failed to keep proper records of the time, as required by the FLSA, its servers spent
performing tipped and untipped work. See ECF No. 73. Denny’s’ Motion, on the other hand, was denied in full.
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(Third Case Management Order), 82 (Order suspending deadlines to allow for mediation), 84
(Notice regarding results of mediation), the Court set a briefing schedule for Ms. Wintjen’s FLSA
Motion and Rule 23 Motion. See ECF No. 85. Those Motions have now been fully briefed and
are ripe for disposition.
Having reviewed and considered the record, including the pleadings, the evidence
submitted in connection with the FLSA Motion and the Rule 23 Motion, and the evidence
submitted in connection with the parties’ motions for partial summary judgment, the Court finds
as follows for the purpose of resolving the instant Motions:
Denny’s owns and operates a nationwide chain of restaurants, including, as relevant here,
in Pennsylvania. During the proposed class and collective action periods,4 Denny’s operated 12
restaurants and employed approximately 1,000 tipped employees in Pennsylvania. See ECF Nos.
93-2 at 7–8, 93-3 at 7. Denny’s maintained company-wide training and onboarding materials,
including the Employee Guidebook and Important Wage and Hour Policies Summary
Acknowledgment Form. See ECF Nos. 56-4 and 59-4. Denny’s also provided its managers with
standard onboarding and training materials, including an onboarding activity grid and checklist.
See ECF No 59-4 at 4–5, 10–11. Denny’s posted Pennsylvania and federal labor law posters in its
restaurants. See ECF No. 93-2 at 11.
The proposed Rule 23 Class would encompass tipped employees who worked for Denny’s in Pennsylvania at any
time from January 22, 2016 through August 1, 2019, provided that such employees were hired before January 1, 2019.
See ECF No. 89. The proposed FLSA Collective would encompass tipped employees who worked for Denny’s in
Pennsylvania at any time from July 6, 2017 through August 1, 2019, again provided that such employees were hired
before January 1, 2019. See ECF No. 91. The Court notes that Ms. Wintjen uses January 16, 2016 as the beginning
date for the FLSA Collective period in her brief, see ECF No. 92 at 3; however, even in light of the statute of
limitations issues discussed below in Section IV.C, because the statute of limitations for each opt-in plaintiff continues
to run until that plaintiff files his or her written consent to join, the 2016 date would be outside the applicable
limitations period for any opt-in plaintiff. See Viscomi v. Clubhouse Diner, No. 13-4720, 2016 U.S. Dist. LEXIS
43375, at *16–17 (E.D. Pa. Mar. 30, 2016).
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In its responses to written discovery, Denny’s stated that it provided tip credit notice as
[E]mployees would have been made aware of the tip credit during the hiring process
where compensation was discussed, and during the onboarding and training process
each server went through. Tip credit information was conveyed orally by the
manager and/or trainer responsible for onboarding, and through written materials
provided to or shown to employees upon hire or during onboarding and training.
Written materials provided or shown to employees that contained information
regarding the tip credit consisted of employee pay stubs; state and federal labor law
posters; the Employee Guidebook; and the “Important Wage and Hour Policies
Summary and Acknowledgment Form.”
ECF No. 93-2 at 13.
Denny’s’ Rule 30(b)(6) corporate designee, Mr. Brian Hart, testified that Denny’s claimed
a tip credit for all Pennsylvania servers when they were clocked in under the “server” job code.
See ECF No. 93-1 at 14–15. Mr. Hart also testified that the written materials described above
would have been provided to every new server and that it was Denny’s’ expectation that its
managers would use those materials when reviewing tip credit information with new hires at the
time of onboarding. See id. at 6 (stating only one version of Employee Guidebook in use during
relevant time period), 9–10 (stating that onboarding “policies for the Denny’s, Inc. units were all,
yeah, the same” and that it was Denny’s’ expectation managers would follow Denny’s provided
onboarding checklist), and 17 (stating that orientation and onboarding checklists “cover, you
know, what should be covered in an orientation.”).
That said, sometime in 2018, Denny’s made Department of Labor Fact Sheet # 15
“available” to its managers. See ECF No. 93-2 at 20-21. Fact Sheet # 15 expressly sets forth the
five pieces of information that an employer must provide to a tipped employee before claiming a
tip credit to satisfy its notice obligation under the FLSA. See ECF No. 93-4. Mr. Hart testified,
however, that he was unaware of any e-mail or memorandum either directly distributing Fact Sheet
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# 15 to managers or providing guidance or instruction to managers regarding Fact Sheet # 15. See
ECF no. 56-3 at 19.
Ms. Wintjen was hired to work as a server at the Denny’s location in Cranberry Township,
Pennsylvania, beginning in September 2017. See ECF No. 14 ¶ 16. Ms. Wintjen’s employment
lasted for about nine weeks, at which point Denny’s terminated her for job abandonment. See ECF
59-2 at 17. Ms. Wintjen was onboarded by Denny’s manager Madeleine Weinel, who provided a
sworn declaration in this case. See ECF no. 56-13. In her declaration, Ms. Weinel describes the
regular “practice” she followed when onboarding new servers, and states that she adhered to that
practice when she onboarded Ms. Wintjen. See id. ¶¶ 5–11, 14. Specifically, Ms. Weinel states
in her declaration that she verbally informed Ms. Wintjen and the approximately 40 other new
servers she onboarded during the class and collective period of the first four pieces of the required
notice under the FLSA. See id. ¶¶ 4, 7.
The Court also notes that in resolving the parties’ Motions for Partial Summary Judgment,
the Court found that Denny’s’ written materials—i.e., the onboarding checklists, the Employee
Guidebook, Wage and Hour Acknowledgement, etc.—were insufficient to satisfy Denny’s’ tip
credit notice obligation under the FLSA. See ECF No. 72 at 12–13. The Court further found that
Ms. Weinel’s declaration confirms that Ms. Weinel did not verbally provide Ms. Wintjen with
complete tip credit notice. See id. Thus, although Ms. Wintjen testified that Denny’s’ managers
had informed her about how she would be paid—i.e., a reduced cash wage plus tips—see ECF No.
99 at 2, no combination of written and/or verbal notice sufficed to provide Ms. Wintjen with the
complete notice required under the FLSA. See ECF No. 72 at 12–13. Furthermore, the Court
found that Denny’s failed to keep complete records, as required under the FLSA and its
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implementing regulations, of the time Ms. Wintjen (or any other server) spent performing tipped
and untipped work. See id. at 20.
Denny’s Preliminary Arguments
Before addressing the substance of Ms. Wintjen’s Rule 23 Motion, we first address a pair
of preliminary arguments raised by Denny’s regarding (1) whether Ms. Wintjen has Article III
standing to pursue the PMWA claim and (2) whether the PMWA incorporates a less demanding
tip credit notice standard than the FLSA.
Ms. Wintjen Has Article III Standing
Denny’s first argues that Ms. Wintjen lacks standing to bring her PMWA tip credit claim.
This argument is functionally identical to the argument Denny’s made at summary judgment
regarding Ms. Wintjen’s FLSA tip credit claim. Indeed, in its brief, Denny’s simply incorporates
by reference the argument it made at summary judgment that any deficiency in the tip credit notice
it provided amounted to nothing more than a procedural harm, meaning Ms. Wintjen lacks standing
because she has not suffered an injury-in-fact. See ECF No. 99 at 6. The Court has already
considered—and rejected—this argument. See ECF No. 72 at 13–15. As such, we conclude, for
the reasons set forth at summary judgment, that Ms. Wintjen has Article III standing to pursue her
PMWA tip credit notice claim.
The PMWA “Substantially Parallels” the FLSA
Next, Denny’s argues that we should not apply the general rule that “[b]ecause the PMWA
‘substantially parallels’ the FLSA, …federal courts are directed to interpretation of the FLSA when
analyzing claims under the PMWA.” Razak v. Uber Tech., Inc., No. 16-573, 2016 U.S. Dist.
LEXIS 139668, at *22 (E.D. Pa. Oct. 7, 2016); see also Rui Tong v. Henderson Kitchen, Inc., No.
17-1073, 2018 U.S. Dist. LEXIS 176294, at *6–7 (E.D. Pa. Oct. 12, 2018) (same); see ECF No.
99 at 7–8. Denny’s offers three reasons in support of this position: (1) “the language of the PMWA
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and FLSA tip credit provisions is not identical;” (2) Pennsylvania courts “have specified a less
rigid standard [for the PMWA] than the FLSA;” and (3) Pennsylvania “has not—after 9 years—
adopted the Department of Labor’s regulation interpreting the notice requirements.” Id. at 8.
Our analysis begins with the text of the PMWA. As amended in 1998, Section 333.103(d)
of the PMWA states, in relevant part, as follows:
In determining the hourly wage an employer is required to pay a tipped employe,
the amount paid such employe by his or her employer shall be an amount equal to:
(i) the cash wage paid the employe which for the purposes of the determination
shall be not less than the cash wage required to be paid the employe on the date
immediately prior to the effective date of this subparagraph; and (ii) an additional
amount on account of the tips received by the employe which is equal to the
difference between the wage specified in subparagraph (i) and the wage in effect
under section 4 of this act. The additional amount on account of tips may not
exceed the value of tips actually received by the employe. The previous sentence
shall not apply with respect to any tipped employe unless:
(1) Such employe has been informed by the employer of the provisions of this
(2) All tips received by such employe have been retained by the employe and shall
not be surrendered to the employer to be used as wages to satisfy the requirement
to pay the current hourly minimum rate in effect; where the gratuity is added to
the charge made by the establishment, either by the management, or by the
customer, the gratuity shall become the property of the employe; except that this
subsection shall not be construed to prohibit the pooling of tips among employes
who customarily and regularly receive tips.
43 P.S. § 333.103(d) (emphasis added). Denny’s’ textual argument focuses on the two italicized
provisions above, contending that this Court must “interpret [Section 333.103(d) of the PMWA]
independent of the FLSA” because the PMWA contains (1) a “legislative drafting error” resulting
from a 1998 amendment that effectively “eliminates the tip credit notice requirement” and (2)
additional language in Section 333.103(d)(2) (italicized above) that does not appear in Section
203(m) of the FLSA. ECF No. 99 at 8–10. However, Denny’s’ textual argument is not persuasive
As defined in the PMWA, employee is spelled “employe.” See 43 P.S. § 333.103(h).
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because, on closer inspection, neither the purported drafting error nor the additional language in
Section 333.103(d)(2) result in the PMWA having a “less rigorous” notice requirement than the
First, Denny’s’ conclusion that the 1998 amendment “eliminate[d] the tip credit notice
requirement” does not necessarily follow from the premise that the 1998 amendment introduced a
“legislative drafting error.” ECF No. 99 at 8. According to the Pennsylvania Supreme Court,
“[w]hen the provisions of a statute contain an obvious error, the Act is to be construed to give
effect to the evident legislative intent as gathered from the entire Act.” Ford Motor Co. v.
Commonwealth, 507 A.2d 49, 54 n.6 (Pa. 1986). Thus, rather than mechanically apply what
appears to be a clear error in the statutory text of Section 333.103(d), we will instead construe the
PMWA to “give effect to the evident legislative intent as gathered from the entire Act.” Id.
Pennsylvania’s rules of statutory construction guide our analysis. First, “[t]he object of all
interpretation and construction of statutes is to ascertain and effectuate the intention of the General
Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa.
C.S. § 1921(a). And, “[w]hen the words of a statute are clear and free from all ambiguity, the
letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa. C.S. § 1921(b)
(emphasis added). Furthermore, “[i]n ascertaining the intention of the General Assembly” courts
may presume “[t]hat the General Assembly does not intend a result that is absurd, impossible of
execution or unreasonable.” 1 Pa. C.S. § 1922. Finally, “[i]n no case shall the punctuation of a
statute control or affect the intention of the General Assembly in the enactment thereof but
punctuation may be used to aid in the construction thereof if the statute was finally enacted after
December 31, 1964.” 1 Pa. C.S. § 1923(b) (emphasis added).
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With these principles in mind, we observe that Denny’s’ reading would do more than just
neuter the tip credit notice requirement. It would instead allow employers to skirt their minimum
wage obligations to tipped employees altogether. This is because the only provision that would
“not apply” if an employer failed to give notice is “[t]he additional amount on account of tips may
not exceed the value of tips actually received by the employe.” Thus, by failing to give notice, an
employer could claim the full tip credit (i.e., the difference between the regular minimum wage
and the reduced tipped employee minimum wage) regardless of whether the employee actually
earned enough in tips to make up the difference between the tipped minimum wage and the regular
minimum wage. This is exactly the sort of labor practice the General Assembly expressly sought
to curb when it enacted the PMWA:
Employes are employed in some occupations in the Commonwealth of
Pennsylvania for wages unreasonably low and not fairly commensurate with the
value of the services rendered. Such a condition is contrary to public interest and
public policy commands its regulation. Employes employed in such occupations
are not as a class on a level of equality in bargaining with their employers in regard
to minimum fair wage standards, and “freedom of contract” as applied to their
relations with their employers is illusory. Judged by any reasonable standard, wages
in such occupations are often found to bear no relation to the fair value of the
services rendered. In the absence of effective minimum fair wage rates for
employes, the depression of wages by some employers constitutes a serious form
of unfair competition against other employers, reduces the purchasing power of the
workers and threatens the stability of the economy. The evils of unreasonable and
unfair wages as they affect some employes employed in the Commonwealth of
Pennsylvania are such as to render imperative the exercise of the police power of
the Commonwealth for the protection of industry and of the employes employed
therein and of the public interest of the community at large.
42 P.S. § 333.101 (“Declaration of Policy”). Furthermore, it appears that the purported “legislative
drafting error” does not consist of the omission or inclusion of any word or words, but is the result
of errant punctuation; specifically, the 1998 amendment replaced the colon separating “…under
section 4 of this act” from “[t]he additional amount” in the pre-1998 version of the PMWA with a
period. Compare 1988 Pa. Laws 150 with 1998 Pa. Laws 168.
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Given (1) the clear and unequivocal statement of legislative purpose in Section 333.101;
(2) the incompatibility of that statement of purpose with Denny’s’ reading of Section 333.103(d);
(3) the unreasonable and absurd results that would flow if Denny’s’ reading of Section 333.103(d)
were to be given effect; and (4) the fact that correcting the “legislative drafting error” would require
the Court to revise only one errant punctuation mark, the Court rejects Denny’s’ preferred reading
of Section 333.103(d) because it would lead to absurd results and instead concludes that the 1998
amendment to the PMWA did not “eliminate the tip credit notice requirement.”
Next, Denny’s argues that the inclusion of the following language in PMWA Section
333.103(d)(2), which does not appear in FLSA Section 203(m), means that the PMWA cannot be
found to “substantially parallel” the FLSA: “and shall not be surrendered to the employer to be
used as wages to satisfy the requirement to pay the current hourly minimum rate in effect; where
the gratuity is added to the charge made by the establishment, either by the management, or by the
customer, the gratuity shall become the property of the employe.” Of course, as Pennsylvania
courts have consistently observed, “[t]he FLSA…‘establishes only a national floor under which
wage protections cannot drop, but more generous protections provided by a state are not
precluded.’” Heimbach v. Amazon.com, Inc., 255 A.3d 191, 201 (Pa. 2021) (quoting Chevalier v.
Gen. Nutrition Ctrs., Inc., 220 A.3d 1038, 1055 (Pa. 2019)). And, Pennsylvania courts have
departed from interpreting the PWMA in light of the FLSA where the legislative text and history
of the PMWA do not follow that of the FLSA. See id. at 201–02 (declining to apply FLSA’s
preliminary/postliminary activities exclusion from “hours worked” to PMWA where the
Pennsylvania legislature had adopted no similar provision). Here, however, the PMWA and FLSA
tip credit provisions do in fact closely resemble each other and, if anything, the additional language
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in the PMWA highlighted by Denny’s would only cause the PMWA’s notice requirement to be
more onerous, not less, than the FLSA’s. Compare 43 P.S. § 333.103(d) with 29 U.S.C. § 203(m).
Denny’s remaining two arguments likewise fail to show that the PMWA tip credit notice
provision must be interpreted separately from the parallel provision in the FLSA. First, Denny’s’
position that Pennsylvania courts have interpreted the PMWA as incorporating a less rigorous
notice standard than the FLSA relies on two cases, neither of which is on point. Denny’s notes
that the Commonwealth Court in Golfview Manor, Inc. v. Commonwealth, Department of Labor
& Industry, “observed that ‘[t]he Minimum Wage Law clearly recognizes tips as an acceptable
source for monies to meet the set percentage for an employer’s minimum wage obligation,
provided the employee knows of the practice and directly receives these tips.’” ECF No. 99 at 10
(citing 414 A.2d 722, 725 (Pa. Commw. Ct. 1980)). But, critically, the Golfview Manor court was
not addressing the required elements of notice under the PMWA’s tip credit provision. Indeed,
beyond quoting the pre-1998 amendment version of Section 3(d) in a footnote, the court conducted
no analysis of the statute’s notice provision. Instead, the court was asked to decide whether tips
may be considered as wages at all. And, in deciding that question, the Commonwealth Court’s
opinion reaches the conclusion that, under the PMWA, tips may only count towards an employer’s
minimum wage obligation if tipped employees (1) have notice and (2) retain their tips.
Denny’s also points, in a footnote, to Ford v. Lehigh Valley Restaurant Group, Inc., 47 Pa.
D. & C.5th 157 (C.P. 2015). ECF No. 99 at 10–11 n.4. In that case plaintiffs alleged only
violations of the PMWA’s tip pooling provisions (i.e., they did not plead any claim under the
FLSA). See id. at 159. In ruling on the defendant’s preliminary objections (analogous to a Rule
12 motion), the court noted that “[l]ike the FLSA, the [P]MWA provides that the tip credit
calculation ‘shall not apply with respect to any tipped employee unless: (1) [s]uch employe has
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been informed by the employer’ of the tip credit arrangement; and ‘(2) [a]ll tips received by such
employe have been retained by the employe....’ Id. at 168. Leaving aside the fact that the court
substituted its own less restrictive formulation—i.e. “of the tip credit arrangement”—for the
statute’s more specific requirement that employers provide notice “of the provisions of this
subsection,” the court’s decision in Ford in fact follows the general proposition that the PMWA
should be interpreted in light of parallel provisions found in the FLSA. See id. at 166–68
(interpreting PMWA tip-pooling provision in light of parallel provision under the FLSA). Thus,
neither Golfview Manor nor Ford compel the conclusion that Denny’s urges here.
Finally, the Court is not persuaded that the absence of any state regulation paralleling 29
C.F.R. § 531.59 indicates, one way or the other, how we should read the PWMA here. As this
Court and others have noted, 29 C.F.R. § 531.59 simply sets forth, “in plain English, no more and
no less than what” is required for tip credit notice under the FLSA. ECF No. 72 at 11; see also
Nat’l Rest. Ass’n v. Solis, 870 F.Supp.2d 42, 56 (D.D.C. 2012)6— And, comparing PMWA
Section 333.103(d) with the FLSA Section 203(m), the Court finds that both statutes require, at a
minimum, that an employer notify a tipped employee (1) of the employee’s cash wage; (2) of the
“additional amount” of the tip credit; (3) that the “additional amount” cannot exceed the tips
actually earned; (4) that the employee is to retain all tips; and (5) that the tip credit will not apply
to any employee unless the employer has informed the employee “of the provisions of this
Indeed, the Court notes that the Eleventh Circuit recently confirmed, in another case involving Denny’s, that 29
C.F.R. § 531.59 did nothing more than make explicit what Section 203(m) of the FLSA already requires:
Before the Department [of Labor] issued 29 C.F.R. § 531.59 in 2011, there was some dispute about
whether 29 U.S.C. § 203(m)(2)(A) required the fifth item that the regulation identifies. See Schaefer
v. Walker Bros. Enterprises, Inc., 829 F.3d 551, 556 (7th Cir. 2016) (holding that conveying this
information was not required by the statute itself, and that 29 C.F.R. § 531.59 did not govern conduct
before its issuance in 2011). But the regulation makes this explicit, and Denny’s does not dispute
that the regulation applies to Rafferty’s claims.
Rafferty v. Denny’s, Inc., 13 F.4th 1166, 1193 n.21 (11th Cir. 2021).
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subsection.” Compare 29 U.S.C. § 203(m) with 43 P.S. § 333.103(d).7 The Court therefore rejects
Denny’s’ argument that the PMWA incorporates a “less rigorous” notice requirement than the
FLSA, and instead concludes that, because the PMWA notice requirement “substantially parallels”
that of the FLSA, interpretations of the FLSA are relevant to guiding our analysis of Ms. Wintjen’s
PMWA claims. See Razak, 2016 U.S. Dist. LEXIS 139668 at *22.
Motion for Class Certification under Rule 23(a) and (b)(3)
For purposes of her PMWA tip credit notice claim only,8 Ms. Wintjen seeks certification
of a proposed class pursuant to Rule 23(a) and (b)(3) consisting of:
All Tipped Employees who worked for Defendant in the Commonwealth of
Pennsylvania between January 22, 2016 and August 1, 2019, and were hired prior
to January 1, 2019 (the ‘Pennsylvania Class’).
ECF No. 89. In opposition, Denny’s argues that class certification should be denied because Ms.
Wintjen has failed to meet her burden on the Rule 23(a) requirements of typicality and adequacy
and the Rule 23(b)(3) requirements of predominance and superiority. ECF No. 99 at 13–20.
Standard of Review
A lawsuit may only be certified as a class action if the requirements of Federal Rule of
Civil Procedure 23 are satisfied. See Reinig v. RBS Citizens, N.A., 912 F.3d 115, 124–25 (3d Cir.
2018) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011)). “Courts determine
whether class certification is appropriate by conducting a two-step analysis.” Id. First, the court
must assess whether plaintiff has satisfied the prerequisites of Rule 23(a), and then it must
determine whether plaintiff has met the requirements of either Rule 23(b)(1), (2), or (3). See In re
As noted above, the additional language in Section 333.103(d)(2) may, in fact, require more. But, since the FLSA
establishes the national floor, see Heimbach 255 A.3d at 201, and the Court is unaware of any Pennsylvania court
having considered the exact contours of the PMWA tip credit notice requirement, we need not decide, for the purpose
of resolving Ms. Wintjen’s Rule 23 Motion, whether the PMWA in fact requires more.
Ms. Wintjen does not seek class certification for any dual-jobs claim under the PMWA. See ECF No. 99 at 5–6.
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Modafinil Antitrust Litig., 837 F.3d 238, 248 (3d Cir. 2016) (quoting Marcus v. BMW of N.A.,
LLC, 687 F.3d 583, 590 (3d Cir. 2012)).
In order to satisfy Rule 23(a), plaintiff must show:
(1) the class is so numerous that joinder of all members is impracticable; (2) there
are questions of law or fact common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a)(1)–(4). Here, Ms. Wintjen seeks certification under Rule 23(b)(3), see ECF
No. 89, which requires a finding “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). Because “[t]he commonality and predominance requirements are closely
linked, …‘where an action is to proceed under Rule 23(b)(3), the commonality requirement [in
Rule 23(a)(2)] is subsumed by the predominance requirement.’” Ferreras v. Am. Airlines, Inc.,
946 F.3d 178, 185 (3d Cir. 2019) (quoting Danvers Motor Co., Inc. v. Ford Motor Co., 543 F.3d
141, 148 (3d Cir. 2008)). As such, the Court will address commonality and predominance together.
See Reinig, 912 F.3d at 127. Finally, “[a]scertainability functions as a necessary prerequisite (or
implicit requirement) because it allows a trial court effectively to evaluate the explicit requirements
of Rule 23;” accordingly, a plaintiff seeking class certification under Rule 23(b)(3) must also
establish that the proposed class is “ascertainable,” meaning that “(1) the class is ‘defined with
reference to objective criteria’; and (2) there is ‘a reliable and administratively feasible mechanism
for determining whether putative class members fall within the class definition.’” Byrd v. Aaron’s
Inc., 784 F.3d 154, 162–63 (3d Cir. 2015) (citing Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349,
355 (3d Cir. 2013)).
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Importantly, “the decision to certify a class calls for findings by the court, not merely a
‘threshold showing’ by a party, that each requirement of Rule 23 is met.’” In re Modafinil, 837
F.3d at 248–49 (quoting In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 307 (3d Cir.
2008)). Furthermore, in resolving a motion for class certification under Rule 23, the district court
“‘must resolve all factual or legal disputes relevant to class certification, even if they overlap with
the merits—including disputes touching on elements of the cause of action.’” Id. at 249 (quoting
In re Hydrogen Peroxide, 552 F.3d at 307). As such, “[c]lass certification is proper only if the
district court is satisfied, ‘after a rigorous analysis,’ that the plaintiffs ‘established each element of
Rule 23 by a preponderance of the evidence.’” Reinig, 912 F.3d at 125 (quoting Marcus, 687 F.3d
As noted above, to establish that the proposed class is ascertainable, a plaintiff must show
that “(1) the class is ‘defined with reference to objective criteria’; and (2) there is ‘a reliable and
administratively feasible mechanism for determining whether putative class members fall within
the class definition.’” Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015) (citing Hayes v. WalMart Stores, Inc., 725 F.3d 349, 355 (3d Cir. 2013)). Here, the proposed class is defined using
objective criteria, namely, whether a putative class member worked in Pennsylvania for Denny’s
in a tipped role during the class period. See ECF No. 89. And, because Denny’s maintains records
of its restaurant employees, reference to those records provides “a reliable and administratively
feasible mechanism” for determining class membership.
Furthermore, Denny’s offers no
argument or evidence suggesting that the proposed class here is not ascertainable. The Court
therefore finds that the proposed class is ascertainable.
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Rule 23(a) Factors
A plaintiff satisfies Rule 23(a)’s numerosity requirement if “the class is so numerous that
joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Although there is no minimum
number of class members required to meet the numerosity requirement, our Court of Appeals has
said that “‘generally, if the named plaintiff demonstrates that the potential number of plaintiffs
exceeds 40, the first prong of Rule 23(a) has been met.’” In re Modafinil Antitrust Litig., 837 F.3d
238, 249–250 (3d Cir. 2016) (quoting Stewart v. Abraham, 275 F.3d 220, 226–27 (3d Cir. 2001)).
Here, Ms. Wintjen points to Denny’s’ written discovery responses, which establish that, for the
period encompassed by Ms. Wintjen’s proposed class definition, Denny’s employed
approximately 1,000 servers in Pennsylvania. See ECF No. 90 at 11; see also ECF No. 93-3 at
6–7. Denny’s does not challenge numerosity here. See ECF No. 99 at 13–17 (challenging Rule
23(a) elements of adequacy and typicality only). Accordingly, the Court finds that Ms. Wintjen
has satisfied the numerosity requirement of Rule 23(a)(1).
Under Rule 23(a)(3), the named plaintiff’s claims must be “typical of the claims . . . of the
class.” Fed. R. Civ. P. 23(a)(3). This requirement “ensures the interests of the class and the class
representatives are aligned ‘so that the latter will work to benefit the entire class through the pursuit
of their own goals.’” In re NFL Players Concussion Injury Litig., 821 F.3d 410, 427–28 (3d Cir.
2016) (quoting Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 182–83 (3d
Cir. 2001)) (cleaned up). The Third Circuit has set a “low threshold for typicality,” id. (quoting
Newton, 259 F.3d at 183), such that “[e]ven relatively pronounced factual differences will
generally not preclude a finding of typicality where there is a strong similarity of legal theories or
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 17 of 37
where the claim arises from the same practice or course of conduct.” Id. at 428 (quoting In re
Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 311 (3d Cir. 1998))
Ms. Wintjen contends that the typicality requirement is met here because “Plaintiff and the
absentee class members all assert the same claim – Defendant’s violation of the PMWA – based
on Defendant’s common conduct of improperly claiming a tip credit” and because “Plaintiff and
the absentee class members seek the same relief for Defendant’s violations – repayment of the tip
credit improperly claimed.” ECF No. 90 at 14.
Denny’s counters that typicality has not been met here for two reasons. First, Denny’s
argues that the specific facts underpinning Ms. Wintjen’s tip credit notice claim diverge from those
of the putative PMWA Class. See ECF No. 99 at 13–14. Denny’s notes that the Complaint alleges
that Denny’s “failed to inform their Tipped Employees of (i) their intention to take the tip credit,
and (ii) the amount Defendant intended to claim as a tip credit.” ECF No. 1 ¶ 59. However, record
evidence shows “that Denny’s did supply Plaintiff with at least these two pieces of information,”
ECF No. 99 at 14. As such, Denny’s posits that Ms. Wintjen’s PMWA claim diverges from those
of the putative class members because “[o]ther members of the class—based on the allegations in
the Complaint—would want to demonstrate that the managers who onboarded them failed to
provide one or both of the two pieces of information Plaintiff pleaded in paragraph 59 of her
Complaint.” Id. Second, Denny’s argues that Ms. Wintjen’s PMWA claim is atypical because
“absent a reversal of the Court’s [summary judgment] decision on appeal—Plaintiff is foreclosed
from recovering under the PMWA due to the decision she obtained on her FLSA tip credit claim
finding Denny’s liable.” Id. at 15.
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Neither of Denny’s arguments are convincing. First, whether or not there is some
divergence between the precise factual underpinnings of Ms. Wintjen’s claim and the claims of
the absent class members, precedent in this Circuit is clear that “[e]ven relatively pronounced
factual differences will generally not preclude a finding of typicality where there is a strong
similarity of legal theories or where the claim arises from the same practice or course of conduct.”
In re NFL, 821 F.3d at 428 (citation omitted). Here, both of those conditions are met: the claims
of Ms. Wintjen and the putative class members are based on the same legal theory (i.e. Denny’s
failed to provide compliant tip credit notice) and arise from the same practice or course of conduct
(i.e. Denny’s’ allegedly deficient company-wide policies and procedures). And, second, the
question of whether Ms. Wintjen can ultimately obtain a recovery for her PMWA separate from
her FLSA claim does nothing to lessen her interest in pursuing the PMWA claim now, given that
no final judgment on any individual or class claim has yet been rendered in this case. Indeed, as
Denny’s itself notes, Ms. Wintjen’s earlier success on her individual FLSA tip credit claim is still
subject to appeal.
As such, the Court finds that Ms. Wintjen has satisfied the typicality
Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the
interests of the class.” “According to the Third Circuit, Rule 23(a)(4) adequacy is satisfied by
showing that (1) Class Counsel is competent and qualified to conduct the litigation; and (2) class
representatives have no conflicts of interests.” In re Chocolate Confectionary Antitrust Litig., 289
F.R.D. 200, 218 (M.D. Pa. 2012) (citing New Directions Treatment Servs. v. City of Reading, 490
F.3d 293, 313 (3d. Cir. 2007)).
Denny’s does not challenge the competency or qualifications of Ms. Wintjen’s counsel.
Furthermore, Ms. Wintjen’s counsel has ably represented classes of plaintiffs in other wage and
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 19 of 37
hour lawsuits, including cases recently litigated in this district. See ECF No. 93 ¶¶ 40–55; see
also ECF No. 93-5. Accordingly, the Court finds that Ms. Wintjen’s attorneys will adequately
represent the interests of the class in this case.
Ms. Wintjen argues that she is an adequate representative because “there is no evidence of
any conflicts of interest between Plaintiff and members of the Class. Rather, Plaintiff shares the
same claims under the PMWA as the other Class members, and each Tipped Employee will likely
benefit from this litigation.” ECF No. 90 at 15. Denny’s, however, argues that Ms. Wintjen is not
an adequate class representative because (1) she succeeded on her individual FLSA claims at
summary judgment and (2) she “made untrue allegations in her class complaint, which she was
compelled to admit were not true during her deposition, raising a serious question about her
credibility.” ECF No. 99 at 16–17. In other words, Denny’s levels essentially the same arguments
here as it did with respect to typicality.
First, Ms. Wintjen’s success at summary judgment on her individual FLSA claim does not
create a conflict between her and the proposed class. The FLSA and the PMWA are separate
vehicles for recovery of allegedly unpaid wages, and Ms. Wintjen’s earlier (but not yet final)
success on the former does not put her at odds with a class whose claims are based on the latter.
Second, although “[t]he credibility of the named plaintiff is relevant to the adequacy
requirement,…only significant credibility concerns that ‘go to the heart of the claims or defenses’
at issue in the case will create a risk of inadequate representation.” Williams v. Sweet Home Health
Care, LLC, 325 F.R.D. 113, 123 (E.D. Pa. 2018) (citations omitted). The discrepancies between
the Complaint and Ms. Wintjen’s testimony highlighted by Denny’s do not rise to that level.
Indeed, Ms. Wintjen’s success at summary judgment on her analogous individual FLSA tip credit
claim—which was generally based on evidence obtained from (1) Denny’s’ Employee Guidebook
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 20 of 37
and other onboarding forms and materials, (2) Denny’s’ corporate representative, and (3) the
manager who onboarded Ms. Wintjen—suggests that Ms. Wintjen’s personal credibility is unlikely
to play a significant role in this case. Accordingly, the Court finds that Ms. Wintjen is an adequate
Rule 23(b)(3) Factors
As noted above, “‘where an action is to proceed under Rule 23(b)(3), the commonality
requirement is subsumed by the predominance requirement.’” Ferreras, 946 F.3d at 185 (citation
omitted). This is because, although similar, “the ‘predominance requirement imposes a more
rigorous obligation upon a reviewing court to ensure that issues common to the class predominate
over those affecting only individual class members.’” Reinig, 912 F.3d at 127 (quoting Sullivan
v. DB Invs., Inc., 667 F.3d 273, 297 (3d Cir. 2011)). Accordingly, and because Denny’s does not
specifically challenge whether commonality can be met here, the Court will “analyze the two
elements together.” Id.
The Rule 23(b)(3) predominance requirement “asks whether the common, aggregationenabling, issues in the case are more prevalent or important than the non-common, aggregationdefeating, individual issues.” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016).
Importantly, “[a]n individual question is one where members of a proposed class will need to
present evidence that varies member to member, while a common question is one where the same
evidence will suffice for each member.”
Id. (internal quotations and citations omitted).
Accordingly, “[a]t the class certification stage, the predominance requirement is met only if the
district court is convinced that ‘the essential elements of the claims brought by a putative class are
capable of proof at trial through evidence that is common to the class rather than individual to its
members.’” Reinig, 912 F.3d at 127–28 (quoting Gonzalez v. Corning, 885 F.3d 186, 195 (3d Cir.
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 21 of 37
2018)). “In practice, this means that a district court must look first to the elements of the plaintiffs’
underlying claims and then, ‘through the prism’ of Rule 23, undertake a ‘rigorous assessment of
the available evidence and the method or methods by which [the] plaintiffs propose to use the
evidence to prove’ those elements.” Id. at 128 (quoting Marcus v. BMW of N. Am., LLC, 687 F.3d
583, 600 (3d Cir. 2012)). Where “‘proof of the essential elements of the [claim] requires individual
treatment, then class certification is unsuitable.’” Id. (quoting Newton v. Merrill Lynch, Pierce,
Fenner & Smith Inc., 259 F.3d 154, 172 (3d Cir. 2001)). And as with every other required element
of class certification, the plaintiff must show that the predominance requirement “has been met by
a preponderance of the evidence at the time of class certification.” Ferreras v. Am. Airlines, Inc.,
946 F.3d 178, 184 (3d Cir. 2019).
The parties appear to agree that the common (and claim determinative) issue for this case
is the content of the tip credit notice Denny’s provided to its Pennsylvania servers. That is, Ms.
Wintjen maintains that “‘[t]he predominant questions of fact and law for the class relate to how
[Defendants] notified tipped employees of the tip credit and calculated all tipped employees’
minimum wage.’” ECF No. 90 at 16 (quoting Koenig v. Granite City Food & Brewery, Ltd., No.
16-1396, 2017 U.S. Dist. LEXIS 71809, at *13 (W.D. Pa. May 11, 2017) (Kearney, J.)).
Specifically, Ms. Wintjen points out that “Defendant claimed a tip credit despite failing to meet
all of the requirements to do so, and thus treated all Tipped Employees in the same manner by
denying them the full minimum wage. Thus, ‘common questions predominate over individual
issues’ as this matter ‘turns on a company-wide policy, equally applicable to all class members.’”
Id. at 17 (quoting Stone v. Troy Constr., LLC, No. 3:14cv306, 2015 U.S. Dist. LEXIS 161009, at
*18 (M.D. Pa. Dec. 1, 2015)). Denny’s argues in opposition that this common issue is not
susceptible to common proof because “[t]he primary fact of import here is what Denny’s managers
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 22 of 37
or trainers told new employees during the onboarding process” and that “[w]hat documents class
members received, and what oral communications occurred, cannot be resolved through class
representative proof.” ECF No. 99 at 19–20.
We begin with the essential elements of the proposed class’s claims. To succeed on their
PMWA minimum wage claim, Ms. Wintjen and the putative class will need to prove three
elements: (1) that each of them was an employee within the meaning of the PMWA; (2) that
Denny’s was their employer within the meaning of the PMWA; and (3) that Denny’s failed to pay
them the minimum wage required under the PMWA. See 43 P.S. § 333.103 (Definitions) and §
333.104 (Minimum Wages); c.f. Slater v. Yum Yum’s 123 ABC , No. 2:20-cv-00382-JMG, 2021
U.S. Dist. LEXIS 101251, at *4–5 (E.D. Pa. May 28, 2021) (stating elements of prima facie
minimum wage claim under FLSA). Here, however, just as important as what Ms. Wintjen and
the class will need to prove to succeed on their PMWA claim is what they will not need to prove:
under applicable precedent applying the FLSA’s analogous tip credit provision, the Third Circuit
has held that “[i]f the employer cannot show that it has informed employees that tips are being
credited against their wages, then no tip credit can be taken and the employer is liable for the full
minimum-wage.” Reich v. Chez Robert, Inc., 28 F.3d 401, 403 (3d Cir. 1994) (citing Martin v.
Tango’s Restaurant, Inc., 969 F.2d 1319, 1322–23 (1st Cir. 1992); accord. Richard v. Marriott
Corp., 549 F.2d 303, 305 (4th Cir. 1977) (“What the Congress has said, in effect, to restaurant
employers is that, if you precisely follow the language of 3(m) and fully inform your employees
of it, you may obtain a…credit from the receipt of tips toward your obligation to pay the minimum
wage.”). “The notice requirement is a firm one,” Reich, 28 F.3d at 404, and, as such, “the employer
bears the burden of showing that it satisfied the notice requirement.” Casco v. Ponzios RD, Inc.,
Civil No. 16-2084 (RBK/JS), 2019 U.S. Dist. LEXIS 65320, at *12 (D.N.J. Apr. 17, 2019); see
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 23 of 37
also Clews v. Cty. of Schuylkill, 12 F.4th 353, 358 (3d Cir. 2021) (reciting general rule that an
FLSA exception “is a matter of affirmative defense on which the employer has the burden of
proof.’”) (quoting Corning Glass Works v. Brennan, 417 U.S. 188, 196–97 (1974)).
As noted above, the parties have conducted discovery related to class certification. The
relevant evidence in the record (including what the parties submitted at summary judgment)
consists of: Denny’s’ responses to written discovery requests; Ms. Wintjen’s testimony; the
testimony of Denny’s’ Rule 30(b)(6) corporate designee Mr. Hart; the declaration of Ms. Weinel,
who, in addition to onboarding Ms. Wintjen, states that she onboarded some 40 servers while
working for Denny’s; Denny’s written employee onboarding and training materials, including
Denny’s’ Employee Handbook, onboarding checklists, and Important Wage and Hours Policies
Summary and Acknowledgment Form; federal and state labor law posters; and Department of
Labor Fact Sheet # 15.9
This evidence shows that Denny’s maintained a company-wide tip credit notice policy,
encapsulated in Denny’s’ written employee onboarding/training documents. Mr. Hart conceded
that it was Denny’s’ expectation that the information contained in these written materials is the tip
credit information that Denny’s expected would be provided to all new hires. During the proposed
class period, none of these written materials incorporate the required fifth notice item—i.e., that
the tip credit will not apply to any employee unless the employer has informed the employee “of
the provisions of this subsection.” And, although the evidence shows that, in addition to the written
materials, Denny’s’ managers and trainers communicated tip credit information to new hires
verbally—for example, Ms. Wintjen testified that parts of the tip credit notice were verbally
In general, evidence submitted in connection with the parties’ cross-motions for partial summary judgment is
located at ECF Nos. 56, 59, 61, 63, and 65. See also ECF No. 72 at 2–4 (undisputed material facts for purposes of
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 24 of 37
communicated to her by different managers (in addition to Ms. Weinel) in the course of her being
hired and onboarded—Ms. Weinel’s declaration supports the inference that Denny’s’ managers
adhered to the written forms and documents provided by Denny’s. Indeed, there is no evidence in
the record that any manager working for Denny’s in Pennsylvania during the proposed class period
ever verbally provided all five required notice items.
In sum, the documentary evidence, coupled with Mr. Hart’s testimony, would be sufficient
to establish class-wide liability. That is, together, those pieces of evidence would establish that
Denny’s claimed a tip credit against the wages paid to its servers and that the information Denny’s
provided to class members regarding the tip credit fell short of what is required under the PMWA.
Furthermore, based on the available evidence, Denny’s’ affirmative defense (i.e., that complete
notice was provided) likewise does not truly depend on an individualized inquiry into the exact
notice received by each class member.
First, there is no evidence that any Denny’s manager or trainer in Pennsylvania during the
proposed class period was ever instructed to provide all five required notice items. For example,
while Denny’s did make DOL Fact Sheet # 15 (which includes all five pieces of information)
“available” to its managers beginning sometime in 2018, according to testimony from Mr. Hart,
no memo, instruction, or any other directive on how to use, interpret, or apply Fact Sheet # 15 was
ever given to any managers. Furthermore, the only evidence in the record pertaining to any
individual manager comes from Ms. Weinel, who states in her declaration that, at least with respect
to the 40 servers she onboarded, she had an established “practice” of providing tip credit notice by
reviewing Denny’s’ standard onboarding forms and documents with new servers. She does not
indicate that she ever received or reviewed Fact Sheet # 15 herself, for example, nor does her
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 25 of 37
declaration state that she ever used Fact Sheet # 15 (or any other statement of the five required
notice items) when onboarding a new server.
Thus, given the uniform content of Denny’s standard onboarding materials, and because it
appears that no Denny’s manager was even provided “access” to Fact Sheet # 15 by Denny’s until
sometime in 2018, Denny’s affirmative defense first depends on evidence that a manager (1)
received and reviewed Fact Sheet # 15 (or some other source of information providing accurate
guidance on tip credit notice requirements) and then (2) deviated from Denny’s’ standard forms
and checklists by incorporating such information in his or her onboarding practices. Currently,
there is no such evidence in the record before the Court. And, even if there were such evidence in
the record, it would only apply to servers onboarded by a particular manager after that manager
obtained the complete tip credit notice information and incorporated that information into his or
her practices—that is, a subset of a subset of the putative class.
In other words, no individualized inquiry into the precise notice received by any individual
class member is needed unless there is first evidence that a particular manager deviated from
Denny’s company-wide onboarding materials. The burden of proving of such a deviation—that
is, proof that Denny’s complied with the PMWA notice requirement when it onboarded certain
servers—rests with Denny’s. And, despite having engaged in class certification-related discovery,
Denny’s has offered no evidence that Ms. Wintjen’s onboarding experience was different from
that of any other Pennsylvania server, or that any of its Pennsylvania managers deviated from its
standard company-wide onboarding documents. Accordingly, while it is no doubt true that Ms.
Wintjen bears the burden of establishing predominance by a preponderance of the evidence, that
only means she must demonstrate that the essential elements of the proposed class’s PMWA
minimum wage claim is “‘capable of proof at trial through evidence that is common to the class
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 26 of 37
rather than individual to its members.’” Reinig, 912 F.3d at 127–28 (quoting Gonzalez, 885 F.3d
at 195). Based on the foregoing review of the evidence in the record, the Court concludes that she
has done that here. Furthermore, Denny’s’ argument—unsupported by any evidence in the
record—that individualized proof is needed fails to undermine Ms. Wintjen’s evidence such that
certification would be improper. See Tyson Foods, 577 U.S. at 453 (quoting 7AA C. Wright, A.
Miller, & M. Kane, Federal Practice and Procedure §1778, pp. 123–124 (3d ed. 2005) (“When
‘one or more of the central issues in the action are common to the class and can be said to
predominate, the action may be considered proper under Rule 23(b)(3) even though other
important matters will have to be tried separately, such as damages or some affirmative defenses
peculiar to some individual class members.’” (emphasis added)).
A few additional considerations germane to the Court’s reasoning here bear some further
discussion. First, Denny’s points out that “‘as a general rule, an action based substantially on oral
rather than written communications is inappropriate for treatment as a class action.’” ECF No. 99
at 19 (quoting Johnston v. HBO Film Mgmt., Inc., 265 F.3d 178, 190 (3d Cir. 2001). But, in the
cases Denny’s points to, the court’s decision on class certification centered on whether proof of an
essential element of each class member’s claim depended on proof of verbal communications, as
opposed to an affirmative defense. Furthermore, in each of the cases Denny’s relies on, the
defendant put forward evidence contradicting or undermining the plaintiff’s evidence supporting
a finding of predominance.
In Wilson v. Wings Over Happy Valley MDF, LLC, the court reviewed evidence related to
whether defendant “maintained an illegal tip pool by requiring delivery drivers to share tips with
kitchen workers.” 2020 U.S. Dist. LEXIS 30207, at *14 (M.D. Pa. 2020). Plaintiffs’ evidence—
which consisted of testimony from the named plaintiffs and some documents—purported to show
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 27 of 37
“that delivery drivers were orally informed about this alleged requirement at the end of their first
shift.” Id. (emphasis added). Defendant, for its part, put forward evidence of its own tending to
show that the tip-pool was voluntary and that “the ‘end of night’ checklist…was not an official
training document, and was not distributed to or followed by all managers.” Id. at *15–16.
In Johnston v. HBO Film Management, which involved claims “based on alleged oral
misrepresentations,” the defendant put forward evidence from its investment brokers “who sold
units of Cinema Plus stating they did not use a standardized script or a uniform presentation in
selling shares of Cinema Plus.” 265 F.3d 178, 185, 190 (3d Cir. 2001). Indeed, the named
plaintiff’s own broker testified that “his ‘typical practice [was] to make a list of bullet points
describing the pros and cons and to go over those with a person” and that the information he relied
on “was derived from marketing materials, scripts and prospectuses” rather than “the alleged
uniform sales materials.” Id. at 190.
In Reynolds v. Turning Point Holding Co.—another tip credit notice case—although the
court did find that “there are individual questions about whether potential class members received
notice,” this appears to have been in large part because the plaintiff’s onboarding process was
atypical. No. 2:19-cv-01935-JDW, 2020 U.S. Dist. LEXIS 233883, at *22 (E.D. Pa. Dec. 14,
2020). Indeed, the court noted that:
Normally, Turning Point used an online portal to onboard new employees. That
portal provided employees notice that Turning Point would take a tip credit as part
of the employee’s compensation, and it required the employee to acknowledge
receipt of that notice. Ms. Reynolds testified that she did not receive notice of the
tip credit through the portal, and Turning Point has not produced evidence that she
did. For purposes of these motions, the Court therefore assumes that Ms. Reynolds
did not receive notice through the online portal. Apparently, that makes her an
outlier, as Turning Point has written confirmation for most tipped employees.
Id. at *5–6 (emphasis added). In contrast to the defendants in Wilson, Johnston, and Turning Point,
Denny’s here has put forward no evidence to contradict Ms. Wintjen’s claim that new servers were
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 28 of 37
subject to common tip credit notice practices at onboarding. Nor has it put forward any evidence
that any potential class member received verbal tip credit notice that materially deviated from
Denny’s’ company-wide policy such that complete notice was given. That is, whereas the
plaintiffs’ claims in Johnston and Wilson ultimately depended on proof of verbal communications–
i.e., what reliance-inducing representations were made to each investor or what tip-pool
information was communicated to each driver, respectively—here there are no such individualized
questions because Ms. Wintjen’s unrebutted evidence demonstrates that all prospective class
members were subject to a common policy.
Finally, the Court notes that, as Ms. Wintjen points out, “the calculation of damages for
any individual class member is a simple mathematical equation consisting of multiplying the
number of hours worked during the class period by the amount of tip credit claimed by Defendant
for those hours” with potentially minor variations between class members due to differences in the
number of hours worked. ECF No. 90 at 17–18. Thus, no individualized damages issues preclude
class certification here. See, e.g., Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353, 375–75 (3d
Cir. 2015) (noting that “‘[r]ecognition that individual damages calculations do not preclude class
certification under Rule 23(b)(3) is well nigh universal.’”) (citation omitted).
Accordingly, the Court finds that Ms. Wintjen has satisfied Rule 23(b)(3)’s predominance
requirement (and, therefore, Rule 23(a)(2)’s commonality requirement).
Finally, certification is only warranted if “a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). “The
superiority requirement ‘asks the court to balance, in terms of fairness and efficiency, the merits
of a class action against those of alternative available methods of adjudication.’” In re Warfarin
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 29 of 37
Sodium Antitrust Litig., 391 F.3d 516, 533–34 (3d Cir. 2004) (quoting Krell v. Prudential Ins. Co.
of Am., 148 F.3d 283, 316 (3d Cir. 1998)).
Ms. Wintjen argues that “given the common questions of law and fact relating to the same
state wage and hour laws, a class action is the superior method of litigating the Tipped Employees’
claims.” ECF No. 90 at 18. Furthermore, Ms. Wintjen maintains that superiority is met because
(1) “this Court provides a fair and convenient forum for this litigation for Plaintiff, Defendant, and
the numerous class members who reside in or around this District” and (2) “due to the fact that
‘class members’ interest in controlling their own claims is minimal in comparison to the cost of
prosecuting those claims in separate lawsuits.’” Id. (quoting Bland v. PNC Bank, NA., No. 2:15CV-01042-AJS, 2016 U.S. Dist. LEXIS 189220, at *61 (W.D. Pa. Dec. 16, 2016)). Denny’s, on
the other hand, says that superiority has not been met and Ms. Wintjen’s Rule 23 Motion should
be denied because “[t]he Court cannot, in fairness, deprive Denny’s of the opportunity to
demonstrate, for each of its Pennsylvania employees, that the PMWA’s notice requirements were
satisfied.” ECF No. 99 at 20 (citing In re Asacol Antitrust Litig., 907 F.3d 42, 53 (1st Cir. 2018)).
First, as courts presiding over other wage and hour cases of this type have observed, “there
is ‘little incentive for Plaintiffs to bring their claims individually because the amount of recovery,
if any, would be very small. Class actions are particularly appropriate in such cases.’” Koenig v.
Granite City Food & Brewery, Ltd., No. 16-1396, 2017 U.S. Dist. LEXIS 71809 (W.D. Pa. May
11, 2017) (Kearney, J.) (quoting Ripley v. Sunoco, Inc., 287 F.R.D. 300, 310 (E.D. Pa. 2012)).
Second, we agree with Ms. Wintjen that this District is a fair and convenient forum for the
litigation, given the close connection between the Western District and the underlying claims at
issue. Finally, class certification here will not “deprive Denny’s of the opportunity to” prove that
notice was properly given. As noted above with respect to predominance, it is Denny’s’ burden
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 30 of 37
to prove that compliant notice was provided, and such proof begins with evidence that a given
manager or trainer deviated from Denny’s’ company-wide materials and policies. That Denny’s
has not submitted any such evidence to date—indeed, the only evidence from any manager (the
Weinel Declaration) demonstrates no such deviation for approximately 40 potential class
members)—appears to be the result of Denny’s’ strategy of pointing to a purported lack of
evidence in seeking to defeat first Ms. Wintjen’s summary judgment motion and now her Rule 23
Motion, rather than presenting conflicting evidence of its own. Regardless, following class
certification, the course set two years ago for this case is to proceed into a second phase of
discovery “on all topics related to damages and the decertification of opt-in class members.” ECF
No. 39 at 1. Ms. Wintjen has met her burden to demonstrate, by a preponderance of the evidence,
that the Rule 23 requirements, including superiority, have been met; Denny’s has not, to date,
produced any evidence that would undercut that conclusion. As such, the Court finds that
superiority has been met here.
Having found that requirements of Rule 23(a) and Rule 23(b)(3) are met here, the Court
will certify a class as proposed in Ms. Wintjen’s Rule 23 Motion.
Motion for Conditional Certification of a Collective under the FLSA
We now turn to the FLSA Collective component of Ms. Wintjen’s case. Ms. Wintjen seeks
conditional certification of her FLSA claims as a collective action under 29 U.S.C. § 216(b). In
her FLSA Motion, she proposes that, for purposes of her FLSA claims in Count I of the Complaint,
a collective should be defined as follows:
All Tipped Employees who worked for Defendant in the Commonwealth of
Pennsylvania at any point between July 6, 2017 and August 1, 2019, who (i) were
hired prior to January 1, 2019 and (ii) elect to opt-into this Action. (the
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 31 of 37
ECF No. 91 at 1. With respect to the proposed FLSA Collective, Ms. Wintjen also requests that
the Court (1) equitably toll the claims of any opt-in plaintiffs for a period of approximately one
year and (2) authorize notice to be sent to potential opt-in plaintiffs by text message. ECF No. 92
at 17–20. Denny’s maintains that Ms. Wintjen has not met her burden to demonstrate that
conditional certification is warranted here. Broadly speaking Denny’s argues that Ms. Wintjen
has failed to present evidence showing that similarly situated employees—that is, Denny’s’ servers
who received (1) deficient tip credit notice and (2) performed excessive amounts of side work—
even exist. ECF No. 100 at 7–13. Furthermore, in the event the Court does conditionally certify
an FLSA Collective, Denny’s asks that the Court (1) decline to order production of potential optin plaintiffs’ social security numbers; (2) decline to authorize notice via text message; and (3)
decline to equitably toll the claims of potential opt-in plaintiffs. Id. at 14–20.
Under the FLSA, an action may be brought “by any one or more employees for and in
behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b).
Although conceptually similar to a class action—in that it provides a mechanism for litigants to
gather a number of individual claims into a single action—a collective action under Section 216(b)
differs from a Rule 23 class action in a number of important ways. See Halle v. West Penn
Allegheny Health Sys., 842 F.3d 215, 223 (3d Cir. 2016) (noting that although courts have
borrowed “procedures, concepts, and nomenclature from the Rule 23 class action context…there
remain important differences between a Rule 23 class action and a collective action”). Thus,
because no “procedural rules [have] been promulgated to guide courts and parties in processing
collective actions,” id., many courts (including our Court of Appeals) have adopted a two-step
procedure for determining whether an FLSA lawsuit may proceed as a collective action.
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 32 of 37
At step one—which is the current posture of this case—a named plaintiff moves for what
is known as “conditional certification.” “The ‘sole consequence’ of conditional certification is the
dissemination of court-approved notice to potential collective action members.” Id. at 224
(quoting Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66, 75 (2013)). This is, therefore, “not
a true certification, but rather an exercise of a district court’s discretionary authority to oversee
and facilitate the notice process.” Id. (citing Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 536
(3d Cir. 2012)). The bar for obtaining conditional certification is not a high one; rather, plaintiff
must “make a ‘modest factual showing’ — something beyond mere speculation — to demonstrate
a factual nexus between the manner in which the employer's alleged policy affected him or her and
the manner in which it affected the proposed collective action members.” Id. (quoting Zavala, 691
F.3d at 536 n. 4). At the conditional certification stage, the district court must determine “‘whether
“similarly situated” plaintiffs do in fact exist,’” and then the ultimate determination as to whether
such opt-in plaintiffs are, in fact, “similarly situated” is reserved for the final
certification/decertification stage. Zavala, 691 F.3d at 536 n.4 (quoting Myers v. Hertz Corp., 624
F.3d 537, 555 (2d Cir. 2010)).
Statute of Limitations and Equitable Tolling
Under the FLSA, “[t]he applicable statute of limitations is three years for a willful
violation, two years otherwise.” Viscomi v. Clubhouse Diner, No. 13-4720, 2016 U.S. Dist. LEXIS
43375, at *16 (E.D. Pa. Mar. 30, 2016) (citing 29 U.S.C. 255(a)). However, the filing of the named
plaintiff’s complaint and consent-to-sue does not toll the statute of limitations for any opt-in
plaintiffs; rather, the statute of limitations for an opt-in plaintiff continues to run until his or her
individual opt-in notice is filed. See 29 U.S.C. § 256(b); Viscomi, 2016 U.S. Dist. LEXIS 43375,
at *17 (“The statute of limitations continues to run for potential members until they affirmatively
opt in.”) (citing Symczyk v. Genesis Healthcare Corp, 656 F.3d 189, 200 (3d Cir. 2011), rev’d on
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 33 of 37
other grounds Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66 (2013)). A “violation of the
FLSA [is] willful if, at minimum, the employer ‘showed reckless disregard for the matter of
whether its conduct was prohibited by the [FLSA.]’” Stone v. Troy Constr., LLC, 935 F.3d 141
(3d Cir. 2019) (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 132–33 (1988)).
Finally, equitable tolling of the applicable limitations period “may be appropriate” in three
circumstances: “‘(1) if the defendant has actively misled the plaintiff, (2) if the plaintiff has in
some extraordinary way been prevented from asserting his rights, or (3) if the plaintiff has timely
asserted his rights mistakenly in the wrong forum.’” Hunt v. McKesson Corp., No. 2:16-cv-1834,
2018 U.S. Dist. LEXIS 145733, at *26 (W.D. Pa. Aug. 28, 2018) (Hornak, then-J.) (quoting Miller
v. Beneficial Mgmt. Corp., 977 F.2d 834, 845 (3d Cir. 1992)).
Based on the record now before the Court, Ms. Wintjen has made the “modest factual
showing” necessary to warrant conditional certification of this case as a collective action under
Section 216(b). Specifically, the Court notes that Denny’s used company-wide onboarding
materials and that Mr. Hart, Denny’s’ 30(b)(6) designee, conceded that Denny’s expected each
new hire to receive the same information (including tip credit notice) during onboarding and
training. And, Ms. Weinel’s declaration confirms that Ms. Wintjen’s onboarding included no more
and no less information than what was contained in Denny’s company-wide materials at the time.
Finally, Mr. Hart testified that Denny’s policies with regard to side work and time keeping were
uniform across its restaurants. The Court thus concludes that Ms. Wintjen has presented evidence
sufficient to demonstrate a “factual nexus” between herself and members of the proposed
collective with respect to the FLSA tip credit notice and dual jobs claims.
Denny’s arguments to the contrary are not persuasive. First, Denny’s’ reliance on Reynolds
v. Turning Point Holding Co. is misplaced. See No. 2:19-cv-01935-JDW, 2020 U.S. Dist. LEXIS
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 34 of 37
233883 (E.D. Pa. Dec. 14, 2020). As described in more detail above, the named plaintiff in
Reynolds experienced an atypical onboarding process. See id. at *5–6. Here, taking Denny’s’
written materials, Mr. Hart’s testimony, and Ms. Weinel’s declaration together, it appears that Ms.
Wintjen’s onboarding experience was entirely consistent with both Denny’s’ expectations and
written policies. Next, Denny’s’ argument that “[a]t a minimum, Plaintiff needed to demonstrate
that there are other Denny’s employees who were trained by Madeleine Weinel, and that were
employed within the proposed class period,” ECF No. 100 at 8, elides the fact that Ms. Weinel’s
declaration states that she personally onboarded some 40 new servers during roughly the proposed
collective period following precisely the “practice” she used when onboarding Ms. Wintjen. See
ECF No. 59-4 ¶¶ 2–4 (noting that she worked in a “manager” role from July 2016 onwards and
that “I was involved in the orientation, onboarding, and training of approximately 40 servers.”).
At a minimum, this evidence shows the existence of other employees who were subject to the same
policies and practices as Ms. Wintjen during the proposed FLSA Collective period.10
A similar chain of reasoning applies with equal force to the side work claim. Denny’s
written employee policies and procedures make clear that all Denny’s servers are expected to
perform side-work. Mr. Hart’s testimony corroborated this fact, and further showed that Denny’s
did not keep track of all the time servers spent performing tipped versus untipped duties. There is
no question that other servers working for Denny’s in Pennsylvania during the class period were
subject to these same company-wide policies and procedures. While Denny’s correctly notes that
its failure to keep “adequate records of time Plaintiff spent performing side work does not support
Denny’s notes that it “has no duty to prove what notice it provided to hypothetical plaintiffs for purposes of the
instant motion.” ECF No. 100 at 10. This is, at the conditional certification stage, no doubt true. However, it is
also the case that Ms. Wintjen has no duty to disprove Denny’s’ defense at this juncture. Indeed, in the face of
evidence presented by Ms. Wintjen sufficient to meet her burden for conditional certification, Denny’s cannot rest
on the mere supposition that other, as-yet-unidentified evidence will suffice to defeat the minimal showing
necessary here, or that absence of evidence affirmatively contravening Denny’s’ affirmative defense gives rise to
any inference in Denny’s’ favor.
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 35 of 37
a private cause of action,” that finding is relevant only to evidence Denny’s may rely on in
disputing damages, and is not germane to whether employees who were subject to Denny’s’
company-wide policies exist for purposes of conditional certification.11 The Court thus concludes
that Ms. Wintjen has made the “modest factual showing” necessary to show the existence of other
employees similarly affected by Denny’s policies and practices.
Statute of Limitations and Equitable Tolling
The Court finds that the record supports application of a three-year statute of limitations.
See Viscomi, 2016 U.S. Dist. LEXIS 43375, at 16 n.2. For example, 29 C.F.R. § 531.59—which
sets forth in plain language the precise elements of the required tip credit notice—went into effect
in 2011. The version of DOL Fact Sheet # 15 in the record here, which also sets forth the precise
notice elements, shows that it was last revised in December 2016. And, by at least sometime in
2018, Denny’s had made Fact Sheet # 15 “available” to its managers. However, there is nothing
in the record to suggest that at any point, either before or during the proposed collective period,
Denny’s—a sophisticated company operating a nationwide change of restaurants—revised or
updated its company-wide documents (including, for example, the Employee Guidebook) to reflect
DOL’s express statements on what the FLSA requires for tip credit notice to be complete. Whether
or not Ms. Wintjen and the collective can ultimately prove willful violations remains to be seen;
however, the fact that Denny’s failed for more than half a decade to update its company-wide
documents suggests a degree of recklessness that could support application of the three-year statute
of limitations for collective certification and notice purposes.
Perplexingly, Denny’s also suggests that Ms. Wintjen “has already failed to demonstrate conclusively for
purposes of her summary judgment motion that a violation entitling her to recover damages occurred.” ECF No.
100 at 12. But Ms. Wintjen did not move for summary judgment on her dual-jobs claim—instead, she sought
judgment on the narrow issue of whether Denny’s complied with its record keeping obligations under 29 U.S.C.
§ 211(c) and 29 C.F.R. § 516.28(a). See ECF No. 55 at 17–18. Indeed, it was Denny’s who moved for summary
judgment on Ms. Wintjen’s dual jobs claim—a motion this Court denied. See ECF No. 58 at 20–23; ECF No. 72 at
19-20 and ECF No. 73.
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 36 of 37
Furthermore, we conclude that equitable tolling is appropriate here. As Ms. Wintjen notes,
the Second Case Management Order, ECF No. 49, expressly directed that the parties file and brief
motions for summary judgment before Ms. Wintjen would be permitted to proceed with her motion
for collective certification. After those motions for summary judgment were fully briefed, the case
was transferred to the undersigned. As such, Ms. Wintjen’s Motion for Conditional Certification
was delayed by approximately one year due to the Court’s decisions regarding management of this
litigation, not Ms. Wintjen’s inaction. Accordingly, Ms. Wintjen’s request for equitable tolling
will be granted, and the statute of limitations for opt-in plaintiffs will be tolled from March 9, 2020
(the date of the Second Case Management Order) to March 16, 2021 (the date of the Third Case
Management Order). See ECF No. 92 at 20 (seeking equitable tolling for a period of 1-year,
inclusive of the parties’ earlier 60-day tolling agreement).
Notice to Potential Opt-In Plaintiffs
Finally, Ms. Wintjen requests that the Court (1) allow the parties 10 days to meet and confer
regarding the form of notice to be sent to opt-in plaintiffs; (2) order Denny’s to produce, within
10 days of the Court approving the form of notice “[a] list, in electronic and importable format, of
all members of the putative collective class, including their name, job title, address, email address,
mobile telephone number, dates of employment, date of birth, and last four digits of their Social
Security number”; and (3) authorize that notice be sent to potential opt-in class members via firstclass mail, e-mail, and text message. ECF No. 92 at 17–19. Denny’s opposes Ms. Wintjen’s
requests for (1) the last four digits of potential opt-in plaintiffs’ social security numbers and (2)
authorization to disseminate notice via text message. See ECF No. 100 at 14.
As the court observed in a recent decision from the Eastern District of Pennsylvania,
“[p]roviding servers with electronic notice is especially important given the high turnover rate of
employees in the restaurant industry.” Belt v. P.F. Chang’s China Bistro, Inc., No. 18-3831, 2020
Case 2:19-cv-00069-CCW Document 105 Filed 11/18/21 Page 37 of 37
U.S. Dist. LEXIS 119283, at *26 (E.D. Pa. July 8, 2020). Accordingly, the court concluded that
“[d]espite [defendant’s] concerns about redundancy, it is appropriate in the modern digital age to
distribute notice by mail, email, and text, because although people frequently move and change
addresses, they typically retain the same email addresses and phone numbers.” Id. at *25
(collecting cases). This Court agrees and will also provide a 10 day period in which the parties
are to confer regarding the proposed form of notice. The Court will not, however, order Denny’s
to produce the last four digits of potential opt-in plaintiffs’ social security numbers. Ms. Wintjen’s
request already seeks a number of pieces of personal identifying information for each potential
opt-in, which should be sufficient for her counsel to appropriately direct notice.
For the reasons set forth above, and as set forth more fully in the accompanying Order, Ms.
Wintjen’s Motion for Class Certification, ECF No. 89, and her Motion for Conditional
Certification, ECF No. 91, will be GRANTED.
DATED this 18th day of November, 2021.
BY THE COURT:
/s/ Christy Criswell Wiegand
CHRISTY CRISWELL WIEGAND
United States District Judge
cc (via ECF email notification):
All Counsel of Record
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