Walsh v. Deluca et al
Filing
61
MEMORANDUM AND ORDER granting 52 Motion to Certify Class; granting 53 MOTION (Renewed) for Notice to Be Issued to Similarly Situated Individuals Pursuant to 29 U.S.C. 216(b). So Ordered by Chief Judge William E. Smith on 3/14/2019. (Jackson, Ryan)
Case 1:15-cv-00472-WES-PAS Document 61 Filed 03/14/19 Page 1 of 25 PageID #: 1462
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
GILBERT ENTERPRISES, INC.,
)
d/b/a CLUB FANTASIES, and
)
FRANCIS DELUCA,
)
)
Defendants.
)
___________________________________)
ARIELLE WALSH, on
behalf of herself and all others
similarly situated,
C.A. No. 15-472-WES
MEMORANDUM AND ORDER
Before the Court is Plaintiff’s Motion for Rule 23 Class
Certification (ECF No. 52) and Plaintiff’s Renewed Motion for
Notice to be Issued to Similarly Situated Individuals Pursuant to
29 U.S.C. § 216(b) (ECF No. 53).
Defendants have objected to both
motions (ECF No. 56). For the reasons stated, Plaintiff’s motions
are granted.
I.
Background
This is one of four cases brought on behalf of “exotic
dancers” at various Rhode Island night clubs since 2015.
See also
Levi v. Gulliver’s Tavern, Inc., C.A. No. 15-216 (“Levi”); Binienda
v. Atwells Realty Corp., C.A. No. 15-253 (“Binienda”); Pizzarelli
v. The Cadillac Lounge, L.L.C., C.A. No. 15-254 (“Pizzarelli”).
The cases involve substantially similar allegations and identical
Case 1:15-cv-00472-WES-PAS Document 61 Filed 03/14/19 Page 2 of 25 PageID #: 1463
causes of action, namely, the allegation that women who worked as
dancers
at
these
clubs
were
contractors instead of employees.
misclassified
as
independent
Compare Levi Am. Compl., ECF
No. 13 in C.A. No. 15-216, and Binienda Am. Compl., ECF No. 10 in
C.A. No. 15-253, and Pizzarelli Compl., ECF No. 1 in C.A. No. 15254 with Walsh Compl., ECF No. 1 in C.A. No. 15-472.
2018,
the
reasoning
Court
for
certification
issued
a
granting
and
Lounge, L.L.C..
lengthy
the
summary
memorandum
plaintiff’s
judgment
in
On April 13,
explaining
motions
Pizzarelli
for
v.
its
class
Cadillac
See Mem., ECF No. 47 in C.A. No. 15-254-WES
(“Pizzarelli Memorandum”).
Likewise, on April 23, 2018, the Court
issued a similar memorandum addressing similar issues in Levi v.
Gulliver’s Tavern.
See Mem., ECF no. 59 in C.A. No. 15-216-WES
(“Levi Memorandum”).
Because this case is similar to Pizzarelli
and Levi in its facts, the parties’ arguments, and the Court’s
findings, this Memorandum incorporates the reasoning set forth in
the Levi and Pizzarelli Memoranda and highlights only slight
differences to the extent they are relevant to the present motions.
Arielle Walsh (“Walsh” or “Plaintiff”) is a former dancer at
Club Fantasies (the “Club”) in Providence. See Pl.’s Mem. in Supp.
of Mot. for Rule 23 Certification (“Pl.’s Mem.”) 1, 4, ECF No. 521.
As a dancer, Plaintiff provided “erotic entertainment” to
customers. Id. at 4.
the
Defendant’s
According to Plaintiff, she was a part of
usual
business
2
operations
and
subject
to
Case 1:15-cv-00472-WES-PAS Document 61 Filed 03/14/19 Page 3 of 25 PageID #: 1464
significant
control
from
the
Club.
Id.
at
7.
For
example,
Plaintiff alleges that the Club controls the dancers’ schedules by
requiring them to work three shifts per week and to report their
availability
to
management
at
least
a
week
in
advance
for
scheduling purposes. Id. If a dancer failed to follow her reported
schedule, Defendant could fine, suspend, or terminate the dancer.
Id. at 6-7. Plaintiff also alleges that the Club controlled how
dancers worked during their shifts by requiring them to wear
certain attire or makeup and posting various rules-of-conduct in
the dressing rooms. Id. at 8.
And Plaintiff alleges that the Club
supervised her and other dancers by, among other things, employing
“house moms” to manage the dancers and tell them when to perform.
Id. at 6.
As compensation, Plaintiff alleges that dancers made money
exclusively based on tips from customers; the Club paid no wages
of any kind. Id. at 9. From those earned tips, dancers were
required to pay a “shift fee” to the house, to “tip out” other
staff members, to pay the DJ, and to pay fines for violating Club
rules. Id.
The Club requires all dancers to audition and, if they are
hired,
to
sign
agreements
classifying
them
as
independent
contractors. Id. at 5-6. Walsh signed her agreement in 2012 (“the
2012 Agreement”); however, starting in 2016, the dancers were
required
to
sign
a
new
agreement
3
that
included
a
mandatory
Case 1:15-cv-00472-WES-PAS Document 61 Filed 03/14/19 Page 4 of 25 PageID #: 1465
arbitration provision (“the 2016 Agreement”). Id. at 5, 13-14.
Plaintiff stopped working at the Club before the 2016 Agreement
was introduced. As such, some putative class members (but not
Plaintiff) may be subject to arbitration agreements.
II.
Id. at 13.
Motion for Rule 23 Class Certification
Plaintiff moves for class certification pursuant to Rule 23
of the Federal Rules of Civil Procedure on her state law claims
only. She defines the class as: “[A]ll individuals who have worked
as exotic dancers at Club Fantasies at any time since November 6,
2012.”
Id. at 2. She argues that she meets the numerosity,
commonality, typicality, adequacy, predominance, and superiority
requirements of Rule 23 as follows.
a. Legal Standard
A class may be certified if the Plaintiff shows that the class
meets the Rule 23(a) and (b)(3) requirements:
(1)
numerosity: “the class is so numerous that joinder of all
members is impracticable”;
(2)
commonality: “there are questions of law or fact common to
the class”;
(3)
typicality: “the claims or defenses of the representative
parties are typical of the claims or defenses of the class”;
(4)
adequacy:
“the
representative
parties
will
adequately protect the interests of the class”;
4
fairly
and
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(5)
predominance: “questions of law or fact common to class
members
predominate
over
any
questions
affecting
only
individual members”; and
(6)
superiority: “a class action is superior to other available
methods
for
fairly
and
efficiently
adjudicating
the
controversy.”
Fed. R. Civ. P. 23(a), (b)(3).
“Rule 23 does not set forth a mere pleading standard.” WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). A plaintiff
wishing to certify a class under Rule 23 must produce evidence
sufficient to show her compliance with the rule. See id. at 35051. The Court must undertake a “rigorous analysis” of the Rule 23
requirements, which often involves “some overlap with the merits
of the plaintiff’s underlying claim.” Id. (citations omitted).
b. Parties’ Arguments
First, Walsh argues that more than fifty individuals work as
dancers at the Club each month, suggesting to the Court that there
could be hundreds of potential plaintiffs in the community.
Mem. at 11.
Pl.’s
Second, Walsh contends that the question of whether
dancers were misclassified as independent contractors is common to
all class members.
Id. at 15.
She claims that the issue of the
arbitration provision is not germane to the dancers’ underlying
claims
and
therefore
should
not
be
considered
at
the
class
certification stage. Id. at 13-14. Third, Walsh argues that she
5
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adequately represents the interests of the class because she worked
at the same club, was subject to the same policies and contractual
terms as the proposed class and is seeking the same recovery for
herself as she is for the proposed class. Id. at 15-16. Fourth,
Walsh
contends
that
the
defining
question
in
this
case
(of
employment status) will turn on common evidence concerning the
Club’s practices, policies, and rights with respect to the dancers
and, therefore, common issues predominate over individual issues.
Id. at 17. Fifth and finally, Walsh argues that a class action is
the superior means of litigating these claims because the class
members’ damages may be relatively small such that their ability
and incentive to individually litigate their claims may not exist.
Id. at 20.
Defendants argue that Plaintiff has not met the requirements
of Rule 23 for the following reasons.
First, they contend that
Walsh has identified only five opt-in plaintiffs who have chosen
to join the lawsuit and that this minimal engagement suggests that
there is no interest from putative class members in participating
in the case. See Def.’s Resp. to Pl.’s Mot. for Rule 23 Class
Certification and Pl.’s Renewed Mot. for Notice to be Issued
(“Def.’s Resp.”) 17, ECF No. 56-1. As such, Defendants ask the
Court to find an absence of numerosity.
Second, Defendant claims
that the differences between the 2012 Agreement and the 2016
Agreement prevent Walsh from proving that her claims are typical
6
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of the class because, according to Defendants, class members who
worked at the club after 2016 are contractually barred from
participating in the action.
Id. at 36. Third, Defendants contend
that Walsh is an inadequate representative for the class because
her claims are directly antagonistic to the claims of currentlyemployed dancers who benefit from being classified as independent
contractors. Id. at 23-24. Fourth, Defendants claim that the “basic
liability
question
independent
—
contractors
whether
—
is
entertainers
not
are
susceptible
employees
to
common
or
or
representative proof” and, therefore, common questions do not
predominate over individual questions. Id. at 28. For the same
reason, Defendants argue that the class action mechanism is not
the superior method of litigating these claims. Id. at 28, 30.
c. Discussion
i. Numerosity
Class size, while important, is not determinative of the
numerosity requirement.
See Andrews v. Bechtel Power Corp., 780
F.2d 124, 131 (1st Cir. 1985).
Furthermore, numerosity is “‘not
a difficult burden to satisfy’” and courts routinely find that
classes with more than forty members meet the requirement. McAdams
v. Mass. Mut. Life Ins. Co., No.Civ.A. 99-30284-FHF, 2002 WL
1067449 at *3 (D. Mass. 2002) (quoting In re Cardizem CD Antitrust
Litig., 200 F.R.D. 297, 303 (E.D. Mich. 2001)) (granting class
certification for a class of 117 members dispersed across thirty7
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three states); see also In re Modafinil Antitrust Litig., 837 F.3d
238, 250 (3d Cir.2016) (“Leading treatises have collected cases
and recognized the general rule that [a] class of 20 or fewer is
usually insufficiently numerous [and a] class of 41 or more is
usually sufficiently numerous. . .”)(quotations omitted).
Here, Defendants have not contested that more than fifty
entertainers work at the Club each month, raising the inference
that there could be several hundred potential plaintiffs in the
community.
See
Dep.
of
Frank
DeLuca
39-40,
ECF
No.
52-3.
Accordingly, the Court is satisfied that Plaintiff has met Rule
23’s numerosity requirement.
ii. Commonality
To satisfy the commonality requirement, Plaintiffs must show
that the claims “depend upon a common contention . . . capable of
classwide resolution,” and that “class members have suffered the
same injury.” Dukes, 564 U.S. at 350, 352 (holding that 1.5 million
employees did not meet the commonality requirement because their
underlying “pattern or practice of discrimination” claim involved
“literally millions of employment decisions.”)(citations omitted).
Nothing in the record indicates that Defendants’ right to
control Plaintiff was any different from the Club’s right to
control other proposed class members, including those who are
subject to mandatory arbitration provisions. Indeed, Defendants
admit
that
they
classified
all
8
entertainers
as
independent
Case 1:15-cv-00472-WES-PAS Document 61 Filed 03/14/19 Page 9 of 25 PageID #: 1470
contractors. See Def.’s Resp. 5.
Because the state law claims are
based on Defendants’ classification of potential class members as
independent contractors, the claims surely satisfy the commonality
requirement. See DeGidio v. Crazy Horse Saloon & Rest., Inc., No.
4:13-CV-02136-BHH, 2017 WL 5624310, at *11 (D.S.C. Jan. 26, 2017),
aff’d and remanded, 880 F.3d 135 (4th Cir. 2018), (“Various courts
have found commonality where the record evidence established that
entertainers were subject to a uniform set of pay policies and
practices.”). There are questions of law and fact common to the
class sufficient to satisfy Rule 23(a)(2).
iii. Typicality
The Supreme Court has stated that:
[T]he commonality and typicality requirements
of Rule 23(a) tend to merge. Both serve as
guideposts for determining whether under the
particular circumstances maintenance of a
class action is economical and whether the
named plaintiff’s claim and the class claims
are so interrelated that the interests of the
class members will be fairly and adequately
protected in their absence.
Dukes, 564 U.S. at 349 n.5 (quoting Gen. Tel. Co. of SW v. Falcon,
457 U.S. 147, 157-58, n.13 (1982)).
Plaintiff is typical of the class notwithstanding the fact
that she is not subject to a mandatory arbitration provision
because that provision from the 2016 Agreement does not alter the
claims among the class — i.e., whether dancers were misclassified
as independent contractors. Here, Plaintiff was subject to the
9
Case 1:15-cv-00472-WES-PAS Document 61 Filed 03/14/19 Page 10 of 25 PageID #: 1471
same general practices and policies at the Club and all class
members were classified as independent contractors, regardless of
whether they are required to arbitrate their claims.
iv. Adequacy
“[T]he adequacy-of-representation requirement . . . raises
concerns about the competency of class counsel and conflicts of
interest” between the representative plaintiff and the putative
class members.
Id.
“But perfect symmetry of interest is not
required and not every discrepancy among the interests of class
members renders a putative class action untenable. ‘Only conflicts
that are fundamental to the suit and that go to the heart of the
litigation prevent a plaintiff from meeting the Rule 23(a)(4)
adequacy requirement.’”
Matamoros v. Starbucks Corp., 699 F.3d
129, 138 (1st Cir. 2012) (quoting 1 William B. Rubenstein, Newberg
on Class Actions § 3:58 (5th ed. 2012)).
Although Defendant argues that Plaintiff will not protect the
interests of the proposed class members by opposing enforcement of
the arbitration clause, this is not the type of conflict of
interest that would prevent Plaintiff from fairly and adequately
protecting the interests of the class.
See, e.g., Gen. Tel. Co.
of NW, Inc. v. EEOC, 446 U.S. 318, 331 (1980) (explaining that a
conflict of interest for Rule 23(a)(4) purposes would be, “for
example,
between
employees
and
10
applicants
who
were
denied
Case 1:15-cv-00472-WES-PAS Document 61 Filed 03/14/19 Page 11 of 25 PageID #: 1472
employment and who will, if granted relief, compete with employees
for fringe benefits or seniority.”).
Likewise, Plaintiff’s counsel has experience with numerous
class action cases based on similar claims, and there are no
conflicts of interest apparent from the record. See Andrews, 780
F.2d at 130 (explaining that Rule 23(a)(4) requires that “counsel
chosen by the representative party is qualified, experienced and
able to vigorously conduct the proposed litigation” (citation
omitted)).
Thus,
the
representative
parties
will
fairly
and
adequately protect the interests of the class, satisfying the
requirements of Rule 23(a)(4).
v. Predominance
The common law “right to control” test governs Plaintiff’s
state law claims.
Thus, factual differences in class members’
actual treatment at the Club are immaterial; the only significance
for this test is the Club’s ability to control the entertainers.
This question is common to all class members and will predominate
over any individual questions of actual treatment or control.
As discussed in relation to the Rule 23(a)(2) “commonality”
requirement,
Defendants’
uniform
classification
of
all
class
members as independent contractors makes it clear that common
issues predominate.
See In re Wells Fargo Home Mortg. Overtime
Pay Litig., 571 F.3d 953, 958 (9th Cir. 2009) (holding that
“uniform corporate policies will often bear heavily on questions
11
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of predominance” and that “centralized rules, to the extent they
reflect the realities of the workplace, suggest a uniformity among
employees that is susceptible to common proof”).
vi. Superiority
Class
actions
are
superior
to
other
dispute
resolution
methods when there would be significant cost savings to class
members, and class resolution would be more efficient, thereby
preserving
Jackson,
judicial
Miss.
v.
resources.
Roper,
See
445
U.S.
Deposit
326,
Guar.
338
Nat’l
n.9
Bank,
(1980)
(“A
significant benefit to claimants who choose to litigate their
individual claims in a class-action context is the prospect of
reducing their costs of litigation, particularly attorney’s fees,
by allocating such costs among all members of the class who benefit
from any recovery.”).
Here, proceeding in a class action is
superior to each
proposed class member bringing their claims individually because
it
would
consolidate
attorneys’
fees
and
the
Court’s
case
management resources. A class action may also incentivize class
members
to
participate
in
the
litigation
when
damages
are
relatively small.
d. Conclusion
In sum, it would be inefficient for the parties and the Court
to require each class member to bring an individual claim when a
class action is available and appropriate. This Court reached the
12
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same conclusion in Pizzarelli and Levi, just as numerous other
courts
have
done
misclassification
in
cases.
similar
See
so-called
Pizzarelli
Mem.
exotic
30-31;
dancer
see
also
DeGidio, 2017 WL 5624310, at *15 (citing cases).
The Court finds that Plaintiff has satisfied each requirement
of Rule 23 and will therefore grant her Motion for Rule 23 Class
Certification, ECF No. 52.
III. Renewed Motion for Notice to Be Issued to Similarly Situated
Individuals Pursuant to 29 U.S.C. § 216(b).
Plaintiff
collective
moves
action
for
conditional
pursuant
to
the
(“FLSA”), 29 U.S.C. § 216(b).
certification
Fair
Labor
of
the
Standards
Act
She defines the class as “all
individuals who have worked as exotic dancers at Club Fantasies
since October 3, 2013.” Pl.’s Mem in Supp. of Mot. for Renewed
Notice at 16, ECF No. 53-2 (“Pl.’s Notice Mem.”).
She has also
submitted a proposed Notice to be issued to potential plaintiffs,
which
she
contends
“meets
the
timeliness,
accuracy
and
informational requirements” established in Hoffman-La Roche Inc.
v. Sperling, 493 U.S. 165, 172 (1989), because it adequately
describes the lawsuit, informs recipients of their opportunity to
opt-in, instructs them how to opt-in, and notifies them of the
consequences of opting-in. Id. at 22.
aspect of her Motion in turn.
13
The Court addresses each
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a. Conditional Certification
Plaintiff contends that she has already met the more rigorous
numerosity, commonality, typicality, and adequacy requirements for
class certification under Rule 23 and so she necessarily meets the
less stringent requirement of establishing that class members are
“similarly situated” to obtain conditional certification under the
FLSA. See Pl.’s Notice Mem. 2-3. She also contends that courts
routinely grant conditional certification and issue notice in FLSA
actions brought by exotic dancers challenging their classification
as independent contractors. Id. at 3.
Defendants claim that Plaintiff has not proved that she is
“similarly situated” to other potential plaintiffs because “[m]ere
identification of a shared job title or pay structure is not
sufficient to warrant an exception to the longstanding principle
that claims should be adjudicated on an individual basis.”
Def.’s
Resp. 21. Defendants contend that the “economic reality” test
governs whether potential plaintiffs constitute “employees” or
“independent contractors” and that test cannot be applied on a
class wide basis. Id. at 27.
potential
plaintiffs
were
According to Defendants, whether the
properly
classified
as
independent
contractors varies from entertainer to entertainer because all
entertainers experience varying levels of supervision and control,
economic independence, permanency in their relationship to the
Club, application of initiative and investment in their business,
14
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and opportunities for profit and loss. Id. at 29.
that
the
Club
contractors”
classifies
is
immaterial
all
to
The mere fact
entertainers
as
“independent
determining
whether
or
not
certification under the FLSA is appropriate; Plaintiff must also
prove her ability to generate common answers to the common question
about the putative class members’ employment status. Id. at 20.
Because Defendants contend she cannot do so, they argue that
certification is inappropriate. Id. at 22, 28.
Collective
action
certification
under
the
FLSA
does
not
incorporate Rule 23’s numerosity, commonality, typicality, and
adequacy
criteria,
but
instead
requires
action plaintiffs be “similarly situated.”
only
that
collective
Prescott v. Prudential
Ins. Co., 729 F. Supp. 2d 357, 364 (D. Me. 2010).
Usually, FLSA
certification proceeds in two stages: The first stage occurs early
in the case, before substantial discovery; it determines whether
notice should be given to potential collective action members and
typically
results
in
collective action. Id.
the
conditional
certification
of
the
Plaintiffs can meet their first stage
burden “by simply alleging that the putative class members were
together the victims of a single decision, policy, or plan that
violated the law.” Reeves v. Alliant Techsystems, Inc., 77 F. Supp.
2d 242, 247 (D.R.I. 1999) (quotations omitted).
The second stage
occurs after discovery is complete; it allows the employer to move
15
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to decertify the collective action and requires the court to “make
a factual determination on the ‘similarly situated’ question.” Id.
Here, the Court held in abeyance Plaintiff’s original motion
for conditional FLSA certification, see ECF No. 22, pending the
completion of discovery with respect to the named Plaintiff and
the current opt-in Plaintiffs. See Order, ECF No. 35.
As such,
significant discovery has already occurred in this action with
respect to the named Plaintiff and the five opt-in plaintiffs.
However, no discovery has taken place with respect to the as-yet
unidentified opt-in plaintiffs who may respond to a future Notice
of this action.
assess
the
Since the second stage requires the Court to
specific
circumstances
of
each
individual
opt-in
plaintiff, the Court cannot proceed to that stage until after
Notice has been issued and all putative class members who wish to
participate have opted-in.
Accordingly, the Court will grant
conditional certification if Plaintiff has adequately alleged that
“putative class members were together the victims of a single
decision, policy, or plan that violated the law.” Reeves, 77 F.
Supp. 2d at 247.
Plaintiff alleges that putative class members are employees
who
were
misclassified
as
independent
contractors.
Whether
a
worker qualifies as an employee under the FLSA is a matter of
economic reality and the primary question is whether the individual
is economically dependent on the business to which she renders
16
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service or whether she is in business for herself. Tony & Susan
Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 301 (1985) (“The
test of employment under the Act is one of ‘economic reality.’”);
McFeeley v. Jackson St. Entm’t, L.L.C., 825 F.3d 235, 241 (4th
Cir. 2016) (“The touchstone of the ‘economic realities’ test is
whether the worker is ‘economically dependent on the business to
which he renders service or is, as a matter of economic [reality],
in business for himself.’”) (quoting Schultz v. Capital Int’l.
Sec., Inc., 466 F.3d 298, 304 (4th Cir. 2006) (alteration in
original)). In making this determination, courts consider the
totality of the circumstances and give particular attention to
five factors, none of which are dispositive:
(1) the degree of control exercised by the
alleged employer; (2) the extent of the
relative investments of the worker and the
alleged employer; (3) the degree to which the
worker’s opportunity for profit or loss is
determined by the alleged employer; (4) the
skill and initiative required in performing
the job; and (5) the permanency of the
relationship.
Lindsley v. Bellsouth Telecomms. Inc., No. C.A. 07-6569, 2009 WL
537159 at *1 (E.D. La. Feb. 27, 209), aff’d, 401 F. App’x 944 (5th
Cir. 2010) (citing Hopkins v. Cornerstone America, 545 F.3d 338,
343 (5th Cir. 2008)).
In each of these categories, Defendants argue that factual
questions (such as how many hours worked, whether entertainers
worked
exclusively
for
Club
Fantasies,
17
whether
entertainers
Case 1:15-cv-00472-WES-PAS Document 61 Filed 03/14/19 Page 18 of 25 PageID #: 1479
advertise their services on social media, etc.) preclude class
treatment because these facts determine each entertainer’s level
of economic dependence on the Club. See Def.’s Resp. 29. Even if
this is true, Plaintiff has met her burden of alleging that all
entertainers were subject to the same unlawful employment policy,
which is all that is required at the first stage of conditional
certification. See
Prescott, 729
F. Supp. 2d
at 364 (“[T]he
plaintiff must make ‘a modest factual showing’ that she and other
employees,
with
similar
but
not
necessarily
identical
jobs,
suffered from a common unlawful policy or plan.”) (quoting Comer
v. Wal-Mart Stores, Inc., 454 F.3d 544, 547 (6th Cir. 2006)).
Accordingly,
it
is
appropriate
to
conditionally
certify
the
collective action under the FLSA.
b. Notice
Plaintiff asks that the proposed Notice be sent via First
Class mail and email and that it be posted conspicuously on the
Club’s premises during the proposed 90-day notice period. Pl.’s
Notice Mem. 22-23.
is
particularly
Plaintiff contends that a 90-day notice period
appropriate
here
because
the
Club
“has
not
maintained complete records for all of its current and former
workers, leading to delays in reaching every class member.” Id. at
24.
For any notice that is returned as “undeliverable,” Plaintiff
requests leave to obtain phone numbers from the Defendants so she
18
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can contact potential plaintiffs, update their addresses, and
resend the notices via First Class mail. Id. at 23.
Defendants primarily take issue with: (1) Plaintiff’s request
for telephone numbers; (2) her request to post the Notice on the
Club’s premises; and (3) her request for a ninety-day opt-in
period. They argue that sending notice by phone call, text, or
email are methods of communication susceptible to abuse and that
the Court will be unable to control the contents or frequency of
communication;
instead,
Defendants
urge
the
Court
to
provide
notice by newspaper publication only. See Def.’s Resp. 40-41.
Defendants also contend that posting Notice on the Club’s premises
is likely to cause tension between currently-working dancers who
agree with the lawsuit and those who do not. Id. at 41. They also
argue that a posted Notice could impact the Club’s business if
customers viewed or heard about the Notice while partaking in the
Club’s
entertainment.
Id.
Finally,
Defendants
contend
that
Plaintiff has not given an adequate reason for requiring a ninetyday opt-in period as opposed to a thirty-day opt-in period and
that the latter is “more than sufficient.” Id. at 42.
District courts may, in their discretion, facilitate notice
to potential plaintiffs in an FLSA collective action, to implement
the “opt-in” procedure. See Hoffmann-La Roche, Inc., 493 U.S. at
168-69. The Court finds that it is appropriate to do so here.
Accordingly, Defendants should provide Plaintiff with the names
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Case 1:15-cv-00472-WES-PAS Document 61 Filed 03/14/19 Page 20 of 25 PageID #: 1481
and addresses of all entertainers who have worked at the Club since
October 3, 2013.
unless
Plaintiff
Notice shall be issued by First Class mail only,
demonstrates
to
the
Court
that
the
contact
information provided by Defendant is inadequate to reach potential
plaintiffs.
In such circumstance, the Court may require Defendant
to disclose the phone numbers to potential plaintiffs for the
limited purpose of obtaining updated mailing addresses for those
individuals. There shall be a sixty-day opt-in period.
A copy of
the Court-approved Notice is attached hereto as Exhibit A.
IV.
Conclusion
For the reasons stated herein, Plaintiff’s Motion for Rule 23
Class Certification (ECF No. 52) and Plaintiff’s Renewed Motion
for Notice to Be Issued to Similarly Situated Individuals Pursuant
to 29 U.S.C. § 216(b) (ECF No. 53) are GRANTED.
Plaintiff’s
original motion for conditional FLSA certification (ECF No. 22) is
hereby passed as moot.
Accordingly, the statute of limitations
with respect to Plaintiff’s FLSA claims – which was previously
tolled while the Court held her original motion in abeyance – shall
begin to run again as of the date of this Order.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: March 14, 2019
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Case 1:15-cv-00472-WES-PAS Document 61 Filed 03/14/19 Page 21 of 25 PageID #: 1482
EXHIBIT A
21
Case 1:15-cv-00472-WES-PAS Document 61 Filed 03/14/19 Page 22 of 25 PageID #: 1483
COURT-AUTHORIZED NOTICE OF YOUR RIGHT TO “OPT-IN” TO CLAIMS
BROUGHT UNDER THE FLSA AGAINST THE OWNER OF CLUB FANTASIES
Walsh v. Gilbert Enterprises, Inc. d/b/a Club Fantasies
United States District Court, Rhode Island
Civil Action No. 1:15-cv-472-S-PAS
[DATE], 2019
Dear current or former dancer at Club Fantasies:
Enclosed is a consent form allowing you to “opt-in” to participate in a case that has
been filed by a former dancer at Club Fantasies in Providence, Rhode Island, under
federal wage law. The federal claims in this case have been brought on behalf of anyone
who has worked as a dancer at Club Fantasies since October 3, 2013.
The Court has conditionally allowed this case to be a Fair Labor Standards Act
collective action and has authorized this Notice. The Court has not, however, taken a
position on the merits of either party’s case.
If you worked as a dancer at Club Fantasies at any time since October 3, 2013,
you are eligible to participate in this case. To participate and obtain any form of recovery
that may be awarded under federal law, you must complete and return this consent form
to the address below by no later than [60 days after notice mailing], 2019.
In this lawsuit, the plaintiff alleges that the Defendant, who owns and operates Club
Fantasies, violated the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et
seq., by misclassifying the dancers as independent contractors instead of as employees,
and failed to pay them the federal minimum wage.
The Defendant denies any wrongdoing and contends that the dancers were and
are properly classified as independent contractors and were not employees of Club
Fantasies.
Although the Defendant disputes the merits of this case, it recognizes the dancers’
right to pursue these claims in court. The Defendant has given its assurance that you will
not be subject to retaliation of any kind by choosing to participate in this case, and you
will not be fired or subject to discrimination in any manner if you choose to exercise your
rights under the FLSA.
The case is in an early stage, and there has not been a decision by the court as to
whether the plaintiff’s position or the defendants’ position is the correct one. There also
has not been any settlement reached.
If you do not return the enclosed consent form by [60 days after notice mailing],
2019, you will not be considered part of the federal wage claims in this case and will be
unable to receive a share of any settlement or judgment that the plaintiffs may obtain
22
Case 1:15-cv-00472-WES-PAS Document 61 Filed 03/14/19 Page 23 of 25 PageID #: 1484
under federal law. If you do participate in the case, you will be bound any ruling entered
by the court or settlement reached by the parties and you will forfeit the right to sue
Defendant as an individual for the same claims made in this case.
The plaintiff who initiated this case will work with us to make decisions regarding
the progress of this litigation and we welcome your input as well into those decisions. If
you decide to join this case, you may elect to have Plaintiff’s Counsel represent you or
you may retain another attorney.
If you decide to join this case, you may also be asked to be a witness, provide
deposition testimony, and produce documents and other information as part of the case,
although not all individuals who submit a consent form will be required to do so.
Again, to join this case, you must return the enclosed consent form to the
address below no later than [60 days after notice mailing]. In the meantime, if you
have any questions, do not hesitate to contact Plaintiff’s counsel at the contact information
below:
Harold Lichten
Shannon Liss-Riordan
Olena Savytska
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
(617) 994-5800
hlichten@llrlaw.com
sliss@llrlaw.com
osavytska@llrlaw.com
www.llrlaw.com
Ebony Green, egreen@llrlaw.com (administrator)
Please do not contact the court.
This Notice has been authorized by the United States District Court for the District of
Rhode Island.
Yours truly,
Harold Lichten
23
Case 1:15-cv-00472-WES-PAS Document 61 Filed 03/14/19 Page 24 of 25 PageID #: 1485
Re: Club Fantasies Federal Lawsuit
CONSENT TO JOIN COLLECTIVE ACTION
Pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b)
1.
I consent and agree to pursue my claims arising out of my performing at Club
Fantasies in connection with the above-referenced lawsuit.
2.
I work/worked as an exotic dancer for Club Fantasies in Providence, Rhode
Island, from on or about ______ , ________ (month, year) to on or about
, _________ (month, year).
3.
I understand that this lawsuit is brought under the Fair Labor Standards Act, 29
U.S.C. § 201, et seq. I hereby consent, agree, and “opt in” to become a plaintiff
herein and to be bound by any judgment by the Court or resolutions of this action
under the federal wage law.
4.
I hereby designate Harold Lichten, Shannon Liss-Riordan, and Olena Savytska of
Lichten & Liss-Riordan, P.C., at 729 Boylston Street, Suite 2000, Boston,
Massachusetts and John T. Longo of Citadel Consumer Litigation, P.C., 996
Smith Street, Providence, Rhode Island, to represent me for all purposes in this
action.
5.
I also designate the named Plaintiff in this action, the collective action
representative, as my agent to make decisions on my behalf concerning all
aspects of the litigation.
Signature:
__________________________________
Date:
__________________________________
Name:
___________________________________________
Address:
___________________________________________
________________________________________________
Telephone: ____________________________
E-Mail:
________________________________
Send your consent form to:
24
Case 1:15-cv-00472-WES-PAS Document 61 Filed 03/14/19 Page 25 of 25 PageID #: 1486
LICHTEN & LISS-RIORDAN, P.C.
ATTN: Ebony Green
729 Boylston Street, Suite 2000
Boston, MA 02116
Tel: (617) 994-5800
Fax: (617) 994-5801
www.llrlaw.com
egreen@llrlaw.com
25
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