Pennington v. Fluor Corporation et al

Filing 167

ORDER granting in part and denying in part 143 Motion Plaintiffs' Motion for a Supplemental Order Approving the Sending of Notice of Class Certification and Related Relief (ECF Nos. 89, 143), Attaching the Approved No tice to the Court's Order and Opinion, and Ordering Fluor Defendants, SCANA Defendants, and Pennington Plaintiffs to Comply with a List of Mandates Set Forth Within the Conclusion of the Court's Order and Opinion in case 0:17-cv-02094-JMC; granting in part and denying in part 89 Motion Plaintiffs' Motion for a Supplemental Order Approving the Sending of Notice of Class Certification and Related Relief (ECF Nos. 89, 143), Attaching the Approved Notice to the Court's Order and Opinion, and Ordering Fluor Defendants, SCANA Defendants, and Pennington Plaintiffs to Comply with a List of Mandates Set Forth Within the Conclusion of the Court's Order and Opinion in case 0:17-cv-02201-JMC Signed by Honorable J Michelle Childs on 6/20/2019. (Attachments: # 1 Class Notice)Associated Cases: 0:17-cv-02094-JMC, 0:17-cv-02201-JMC(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Harry Pennington, III, on behalf of himself
and all others similarly situated; and
Timothy Lorentz, on behalf of himself and
all others similarly situated,

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Plaintiffs,
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v.
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Fluor Corporation, Fluor Enterprises, Inc., )
SCANA Corporation, Fluor Daniel
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Maintenance Services, Inc., South Carolina )
Electric & Gas Company,
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Defendants.
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Lawrence Butler, Lakeisha Darwish, Darron )
Eigner, Jr., Bernard A. Johnson, and Jimi )
Che Sutton,
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Plaintiffs,
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v.
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Fluor Corporation and Fluor Enterprises,
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Inc.,
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Defendants.
)

Civil Action No.: 0:17-cv-02094-JMC
ORDER AND OPINION

Civil Action No.: 0:17-cv-02201-JMC
ORDER AND OPINION

This matter is before the court for review of Plaintiffs Harry Pennington, III and Timothy
Lorentz’s (“Pennington Plaintiffs”) Motion for a Supplemental Order Approving the Sending of
Notice of Class Certification and Related Relief, which was filed on February 20, 2019. (ECF Nos.
89, 143.) Defendants SCANA Corporation and South Carolina Electric & Gas Company
(“SCANA Defendants”) responded in opposition to the Motion on March 6, 2019, arguing that
Pennington Plaintiffs’ Motion is premature and class notice should not issue until after the
resolution of any future summary judgment motions. (ECF Nos. 93, 147.) Defendants Fluor
1

Corporation, Fluor Enterprises, Inc., and Fluor Daniel Maintenance Services, Inc. (“Fluor
Defendants”) also responded in opposition to Pennington Plaintiffs’ Motion, only maintaining that
there are deficiencies contained within the proposed class notice and not taking a position
regarding the timeliness of the notice. (ECF Nos. 94, 148.) Pennington Plaintiffs replied to both
SCANA Defendants and Fluor Defendants on March 13, 2019, submitting that class notice should
be sent to class members and correcting issues raised by Fluor Defendants as to the contents of the
notice. (ECF Nos. 97, 151.) After careful consideration of all the parties’ positions, the court
GRANTS IN PART and DENIES IN PART Pennington Plaintiffs’ Motion for a Supplemental
Order Approving the Sending of Notice of Class Certification and Related Relief (ECF Nos. 89,
143). Specifically, the court GRANTS Pennington Plaintiffs’ request to send class notice at this
time, but the court DENIES the dissemination of the original notice put forth by Pennington
Plaintiffs in their Motion. However, the court GRANTS the sending of class notice that conforms
with Pennington Plaintiffs’ Reply Memorandum of Law (ECF Nos. 97, 151) and this court’s Order
and Opinion. Further, the court ORDERS Fluor Defendants, SCANA Defendants, and Pennington
Plaintiffs to comply with a list of mandates included at the end of this court’s Order and Opinion.
See infra Part IV. For the convenience of the parties, the approved notice is attached to the court’s
Order and Opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pennington Plaintiffs commenced this action in the United States District Court for the
District of South Carolina on August 8, 2017, and it concerns the layoff of approximately five
thousand (5,000) employees from the V.C. Summer Nuclear Station (“VC Summer”) located in
Jenkinsville, South Carolina. (ECF Nos. 1, 41.) Within their Amended Complaint, filed on October
25, 2017, Pennington Plaintiffs allege that Fluor and SCANA Defendants committed violations of
2

the Worker Adjustment and Retraining Notification Act (“WARN Act”), 29 U.S.C. §§ 2101–
2109. 1 (ECF No. 41 at 2–3 ¶¶ 1–10.) Specifically, Pennington Plaintiffs contend that “[Fluor and
SCANA] Defendants failed to give [] [Pennington Plaintiffs] and the [c]lass members written
notice that complied with the requirements of the WARN Act.” (Id. at 22 ¶ 124.) Pennington
Plaintiffs seek “the sum of: their unpaid wages, salary, commissions, bonuses, accrued holiday
pay, accrued vacation pay, pension and 401(k) contributions and other [Consolidated Omnibus
Budget Reconciliation Act (“COBRA”), 29 U.S.C. §§ 1161–1169,] benefits, for 60 days, that
would have been covered and paid under then-applicable employee benefit plans . . . , all
determined in accordance with the WARN Act . . . .” (Id. at 23.)
On July 18, 2018, the court filed its Order and Opinion granting Pennington Plaintiff’s
Motion for Class Certification under Rule 23(b)(3) of the Federal Rules of Civil Procedure. (See
ECF No. 133.) See also Pennington v. Fluor Corp., 327 F.R.D. 89, 94–95 (D.S.C. 2018). After the
court’s certification of the class, on February 20, 2018, Pennington Plaintiffs filed their Motion for
a Supplemental Order Approving the Sending of Notice of Class Certification and Related Relief.
(ECF Nos. 89, 143.) Within their Motion, Pennington Plaintiffs state that they waited to address
the issuance of class notice in this action because, a few months ago, the United States Bankruptcy
Court for the Southern District of New York was actively considering motions for class
certification and transfer of venue in a parallel WARN action (“WARN Bankruptcy Cases”)
against the debtors of Westinghouse Electric Company, LLC 2 (“Westinghouse”), which

1

The WARN Act prohibits an employer from closing a plant or causing a mass layoff “until a 60day period after the employer serves written notice of such an order . . . .” 29 U.S.C. § 2102(a).
2
According to the Amended Complaint, Plaintiff Timothy Lorenz was employed by Westinghouse
Electric Company, LLC while working at VC Summer, however, Westinghouse Electric
Company, LLC filed for bankruptcy on March 29, 2017, and, therefore, is not a party to the instant
action. (ECF No. 41 at 2 ¶ 2, 4 ¶ 15, 8–9 ¶¶ 45–46.)
3

implicated the parties before this court. (ECF No. 89 at 2–3; ECF No. 143 at 2–3.) However, the
WARN Bankruptcy Cases were recently stayed by the New York federal court, pending resolution
of the action before this court. (See ECF No. 89 at 2–3; ECF No. 143 at 2–3.) See also In re
Westinghouse Electric Co., C/A No. 18-cv-1786 (AJN), 2019 WL 1375670, at *2–5 (S.D.N.Y.
Mar. 27, 2019). Pennington Plaintiffs maintain that class notice is required for (1) the direct
employees of Westinghouse with claims against SCANA Defendants and (2) the direct employees
of Fluor with claims against Fluor and SCANA Defendants. (ECF No. 89 at 3; ECF No. 143 at 3.)
With the WARN Bankruptcy Cases stayed, Pennington Plaintiffs submit that “[n]ow is the
appropriate time to send notice” because class members will not receive two class notices from
two different, federal courts. (ECF No. 89 at 3; ECF No. l43 at 3.)
After arguing that delaying class notice until the resolution of liability issues is improper,
Pennington Plaintiffs assert that their proposed notice meets the legal standard of Rule 23(c)(2)(B)
of the Federal Rules of Civil Procedure, which proscribes sufficient notice for class actions arising
under Rule 23(b)(3). (ECF No. 89 at 5 (citing ECF No. 89-2); ECF No. 143 at 5 (citing ECF No.
143-2).) Pennington Plaintiffs specifically state that their proposed notice “discloses the identifies
of the class representatives and class counsel, advises the class members of their right to opt out,
and provides them a clear mechanism for doing so.” (ECF No. 89 at 5; ECF No. 143 at 5.) Lastly,
Pennington Plaintiffs turn to the appropriate transmission of class notice and propose “a multistage effort to achieve notice to the class . . . .” (ECF No. 89 at 6; ECF No. 143 at 6.) First,
Pennington Plaintiffs suggest delivering class notice by First-Class Mail using current addresses.
(ECF No. 89 at 6; ECF No. 143 at 6.) Secondly, for those addresses that have “grown stale,”
Pennington Plaintiffs request Fluor and SCANA Defendants to provide the phone numbers and
email addresses for class members, so that they can deliver class notice through email or use phone
4

numbers in order to obtain correct addresses, directly from class members, for undeliverable mail.
(ECF No. 89 at 6–7; ECF No. 143 at 6–7.) Because their notice purportedly conforms with the
Federal Rules of Civil Procedure, Pennington Plaintiffs request the court to approve the form and
manner of their proposed notice to class members. (ECF No. 89 at 7; ECF No. 143 at 7.)
On March 6, 2019, SCANA Defendants responded in opposition to Pennington Plaintiffs’
Motion. (ECF Nos. 93, 147.) SCANA Defendants argue that “issuing class notice at this juncture
of the case is premature” because Rule 23(c)(2)(B) “does not specify a time by which notice must
be sent[,]” and the court has not decided whether SCANA Defendants “are a single employer with
Fluor [Defendants] or Westinghouse, at which point the nature of the action, the class definition,
and the claims, issues, or defenses subject to class treatment can be more clearly and concisely
stated in accordance with Rule 23(c)(2)(B).” (ECF No. 93 at 4; ECF No. 147 at 4.) SCANA
Defendants, essentially, submit that the unresolved issue of single employer liability should
foreclose the immediate issuance of class notice “until the parties have completed the liability
phase of discovery and the single-employer issue is resolved on summary judgment.” (ECF No.
93 at 5–6; ECF No. 147 at 5–6.) SCANA Defendants heavily rely upon Guippone v. BH S&B
Holdings LLC, No. 09 Civ. 1029(CM), 2011 WL 1345041, at *8 (S.D.N.Y Mar. 30, 2011). (ECF
No. 93 at 5–6; ECF No. 147 at 5–6.) Bringing their first policy argument, SCANA Defendants
further stress that premature class notice “could potentially result in irreparable legal harm and
unnecessary practical consequences” because the parameters of Rule 23(c)(2)(B) cannot be
“clearly defined” until after the summary judgment stage, thereby making another class notice
“highly confusing” to class members. (ECF No. 93 at 6; ECF No. 147 at 6.) Lastly, in a second
policy argument, SCANA Defendants maintain that class notice would place “class members in a
difficult and potentially prejudicial position” to decide whether to remain in or opt out of the action
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because certain aspects of the litigation may change. (ECF No. 93 at 6–7; ECF No. 147 at 6–7.)
Fluor Defendants also responded in opposition to Pennington Plaintiffs’ Motion on March
6, 2019. (ECF Nos. 94, 148.) Unlike SCANA Defendants, Fluor Defendants do not contest the
timeliness of class notice, but only challenge alleged deficiencies contained within Pennington
Plaintiffs’ proposed notice. (ECF No. 94 at 1–2; ECF No. 148 at 1–2.) Arguing that Pennington
Plaintiffs’ proposed notice is “confusing and will mislead class members,” Fluor Defendants raise
the following issues, verbatim, with the proposed notice:
• On page 1 of the notice, the notice should be addressed to persons employed by
Fluor Enterprises, Inc. or Fluor Daniel Maintenance Services, Inc., as Fluor
Corporation did not employ anyone at the V.C. Summer Project site.
• On page 2 of the notice, under “The Class Claims,” the first sentence should read
“This notice concerns class claims of employees terminated without cause from the
VC Summer Facility . . .,” which more accurately states the nature of Plaintiffs’
claims as Fluor Defendants did provide notice to employees laid off as a result of
the closure.
• On pages 3 and 5 of the notice, Plaintiffs Darron Eigner, Jr. and Bernard A.
Johnson should not be included whether their claims are dismissed pursuant to
Fluor Defendants’ pending Motion to Compel, or they are removed as Named
Plaintiffs, as suggested by Plaintiffs in their Response to Fluor Defendants’ Motion
to Compel.
• On page 4 of the notice, the notice should include additional information
regarding Fluor Defendants’ defenses to Plaintiffs’ claims, which is required by
Rule 23.
• On page 4 of the notice and on the [e]xclusion [f]orm, Plaintiffs improperly
suggest that class members will receive benefits if they choose not to opt-out of the
class.
• On page 4 of the notice, the class members should be advised that their decision
to remain in the class may result in discovery obligations, including responding to
written discovery, appearing for a deposition, and/or being called to testify at trial.
Class members may not be aware of these requirements for participating in a class
action and such awareness may influence their decision on whether they wish to
participate in this lawsuit, or not.
• On page 4 of the notice and on the [e]xclusion [f]orm, class members should be
provided the opportunity to electronically sign and submit the Exclusion Form, as
discussed above.
• On pages 4 and 5 of the notice, the opt-out deadline should be based on the date
that class members postmark and/or electronically submit the [e]xclusion [f]orm,
rather than the date received by Plaintiffs’ counsel, as Plaintiffs’ proposal
improperly limits the opt-out period.
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• In the proposed order, Plaintiffs propose a ten (10) day period to provide the
contact information for class members. Fluor Defendants request thirty (30) days
to compile the information required in this case due to the large number of
plaintiffs. 3
(ECF No. 94 at 4–5; ECF No. 148 at 4–5.) In addition to raising the aforementioned issues with
the proposed notice, Fluor Defendants contest (1) Pennington Plaintiffs’ need for telephone
numbers to ensure that class members receive class notice because they have failed to show a
“special need” for telephone numbers; and (2) the lack of a “self-addressed, stamped envelope for
individuals to return” their exclusion forms, and individuals should be permitted to return the
exclusion form via fax or e-mail. (ECF No. 94 at 2–3; ECF No. 148 at 2–3.) Fluor Defendants do
not specifically request that the court deny Pennington Plaintiffs’ Motion, however, they do request
that the court “revise [Pennington] Plaintiffs’ proposed class notice as indicated herein.” (ECF No.
94 at 5; ECF No. 148 at 5.)
Pennington Plaintiffs replied to both Fluor and SCANA Defendants on March 13, 2019.
(ECF Nos. 97, 151.) First, Pennington Plaintiffs emphasize that SCANA Defendants request to
delay class notice is meritless because their reliance upon Guippone is misplaced because
“summary judgment motions are not within sight.” (ECF No. 97 at 5–6; ECF No. 151 at 5–6.)
Pennington Plaintiffs urge the court to rely upon Ramcharan v. A.F.L. Quality, Inc., C/A No. 12–
7551 (RMB/AMD), 2015 WL 4275534, at *1–3 (D.N.J. Apr. 14, 2015). (ECF No. 97 at 6–7; ECF
No. 151 at 6–7.) Second, Pennington Plaintiffs also note that Fluor Defendants’ objection to
telephone numbers conflates notice under Rule 23 of the Federal Rules of Civil Procedure with
that under the Fair Labor Standards Act (“FLSA”), 28 U.S.C. §§ 201–219. (ECF No. 97 at 9–10;
ECF No. 151 at 9–10.) Third, based upon their proposal to utilize First-Class Mail and then use

3

Fluor Defendants provided the court with their proposed revisions in an edited version of
Pennington Plaintiffs’ proposed class notice. (ECF Nos. 94-1, 148-1.)
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email for mail returned as undeliverable, Pennington Plaintiffs agree that “emailing the opt out
form should be permissible” for those receiving class notice by means of email or those receiving
notice by mail with time constraints. (ECF No. 97 at 11–12; ECF No. 151 at 11–12.) As it relates
to providing an exclusion form with an envelope and paid postage, Pennington Plaintiffs complain
that such an endeavor would be a “waste” because they should not have to “bear the expense of
the paper, printing, stuffing, and stamping of thousands of envelopes that will never be used.”
(ECF No. 97 at 12; ECF No. 151 at 12.) Lastly, Pennington Plaintiffs responded to Fluor
Defendants’ numerous challenges to the class notice by either proposing a revision or suggesting
that a revision is unwarranted. (ECF No. 97 at 14–17; ECF No. 151 at 14–17.) Neither SCANA
nor Fluor Defendants responded to Pennington Plaintiffs’ Reply. Because this matter has been
extensively briefed, it is now ripe for the court’s review. See generally Sauls v. Wyeth Pharm.,
Inc., 846 F. Supp. 2d 499, 501 (D.S.C. 2012) (“The parties have fully briefed the issues, and this
matter is ripe for consideration.”).
II. LEGAL STANDARD
Under the Federal Rules of Civil Procedure, when a class action is certified pursuant to
Rule 23(b)(3), “the court must direct class members the best notice that is practicable under the
circumstances, including individual notice to all members who can be identified through
reasonable effort.” FED. R. CIV. P. 23(c)(2)(B) (emphasis added). Additionally, pursuant to Rule
23(c)(2)(B), class members certified under Rule 23(b)(3) are entitled “to withdraw from the class
at their option.” See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 362 (2011) (citing FED. R. CIV.
P. 23(c)(2)(B)). See also Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1127 (9th Cir. 2017)
(“Courts adjudicating such actions must provide notice that a class has been certified and an
opportunity for absent class members to withdraw from the class.” (citing Dukes, 564 U.S. at 362)).
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As it relates to the specific means of providing notice to class members, class notice may be
transmitted “by one or more of the following: United States mail, electronic means, or other
appropriate means.” FED. R. CIV. P. 23(c)(2)(B). The Federal Rules of Civil Procedure further
provide that the substantive contents of the notice must “clearly and concisely state in plain, easily
understood language” the following:
(i) the nature of the action; (ii) the definition of the class certified; (iii) the class
claims, issues, or defenses; (iv) that a class member may enter an appearance
through an attorney if the member so desires; (v) that the court will exclude from
the class any member who requests exclusion; (vi) the time and manner for
requesting exclusion; and (vii) the binding effect of a class judgment on members
under Rule 23(c)(3).
FED. R. CIV. P. 23(c)(2)(B)(i)–(vii). While the Rule 23(c)(2)(B) mandates the inclusion of specific
information within a class notice, the contents of the notice must still avoid “[e]xcessive detail and
contingencies . . . .” Scott v. Family Dollar Stores, Inc., C/A No. 3:08-CV-540-MOC-DSC, 2017
WL 4126359, at *2 (W.D.N.C. Feb. 21, 2017). Indeed, Rule 23 does not require “that class
members be made cognizant of every material fact that has taken place prior to the notice.” In re
Deepwater Horizon, 739 F.3d 790, 819 (5th Cir. 2014) (quoting In re Corrugated Container
Antitrust Litig., 611 F.2d 86, 88 (5th Cir. 1980)). Nevertheless, in order to ensure the effectiveness
of class notice, “Rule 23 ‘accords a wide discretion to [a federal] [d]istrict [c]ourt as to the form
and content of the notice.’” In re Gen. Tire & Rubber Co. Sec. Litig., 726 F.2d 1075, 1086 (6th
Cir. 1984) (quoting Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d 1338, 1350–51 (9th Cir. 1980)).
See also In re “Agent Orange” Prod. Liab. Litig. MDL No. 381, 818 F.2d 145, 168 (2d Cir. 1987)
(stating that Rule 23 “accords considerable discretion to a district court in fashioning notice to a
class” (citation omitted)).
“The legal standards for satisfying Rule 23(c)(2)(B) and the constitutional guarantee of
procedural due process are coextensive and substantially similar.” DeJulius v. New Eng. Health
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Care Emps. Pension Fund, 429 F.3d 935, 944 (10th Cir. 2005) (citation omitted). As such, the
notice requirements embodied within Rule 23 are “not [] discretionary consideration[s],” but are
“unambiguous requirement[s].” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 (1974).
Consistent with the aforementioned propositions, the United States Supreme Court has declared
that “the express language and intent of Rule 23(c)(2) leave no doubt that individual notice must
be provided to those class members who are identifiable through reasonable effort.” Id. at 175
(emphasis added). As inherent to “reasonable effort,” when parties remain adversarial, “[t]he usual
rule is that a plaintiff must initially bear the cost of notice to the class” because it is “part of the
ordinary burden of financing his own suit.” Id. at 178–79.
III. DISCUSSION
A. The Timing of Pennington Plaintiffs’ Class Notice
The first issue before the court is whether class notice should be disseminated at this time.
(See ECF Nos. 93, 97, 147, 141.) SCANA Defendants contend that the court should not issue class
notice at this time because summary judgment motions have not yet been briefed or resolved, while
Pennington Plaintiffs vigorously maintain that it is appropriate to notify class members of the
instant action. (Compare ECF No. 93 at 4, and ECF No. 147 at 4, with ECF No. 97 at 5–6, and
ECF No. 151 at 5–6.) SCANA Defendants, however, do not bring any opposition as to the contents
of Pennington Plaintiffs’ proposed notice. (See ECF Nos. 93, 147.)
The Federal Rules of Civil Procedure do not proscribe a specific time during which class
notice may be disseminated to class members certified under Rule 23(b)(3). See FED. R. CIV. P.
23(c)(2)(B). See also R&D Bus. Sys. v. Xerox Corp., 150 F.R.D. 87, 91 (E.D. Tex. 1993) (“Fed.
R. Civ. P. 23(c)(2) does not specify when notice must be sent, leaving that decision to the sound
discretion of the [c]ourt and the circumstances of the particular case.” (citing Rivera v. Patino, 524
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F. Supp. 136, 150 (N.D. Cal. 1981); Cusick v. N.V. Nederlandsche Combinatie Voor Chemische
Industrie, 317 F. Supp. 1022, 1024 (E.D. Pa. 1970))). Specifically, Rule 23 is noticeably silent as
to whether class notice should issue before or after any summary judgment dispositions. See FED.
R. CIV. P. 23(c)(2)(B). Likewise, the United States Court of Appeals for the Fourth Circuit is also
silent as to when notice should issue to class members certified under Rule 23(b)(3). However,
several federal appellate courts have stated that notice should issue well before a federal district
court reaches the merits of a case and can bind class members with a formal decision. See Brown
v. Colegio de Abogados de P.R., 613 F.3d 44, 51 (1st Cir. 2010); Cohen v. Office Depot, Inc., 204
F.3d 1069, 1078 (11th Cir. 2000); Schwarzschild v. Tse, 69 F.3d 293, 295 (9th Cir. 1995); Collins
v. E.I. DuPont de Nemours & Co., 34 F.3d 172, 180 (3d Cir. 1994). The general rule is that notice
should issue swiftly after class certification and before a formal determination on the merits. See
McKinney v. U.S. Postal Serv., 292 F.R.D. 62, 68 (D.D.C. 2013); Tylka v. Gerber Prods. Co., 182
F.R.D. 573, 579 (N.D. Ill. 1998). See also 7AA CHARLES ALAN WRIGHT, ARTHUR R. MILLER &
MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1788 (3d ed. 2005) (“Thus, notice must
be sent long before the merits of the case are adjudicated.”). But, in some cases, “circumstances
may require a special timetable because the court is forced to balance the competing interests of
notice and prejudice.” Tylka, 182 F.R.D. at 579. In determining whether to delay notice, generally,
federal courts balance and consider whether a party will be harmed by the issuance of notice and
whether the class will be harmed from a delay in notice. See R&D Bus. Sys., 150 F.R.D. at 91
(citations omitted). At all times, a federal court must allow class members “an opportunity to
present their objections” and “a reasonable time . . . to make their appearance.” Mullane v. Cent.
Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).
In this case, SCANA Defendants do not allege, in any concrete way, that they will be
11

harmed by the issuance of class notice. (See ECF No. 93 at 5–6; ECF No. 147 at 5–6.) SCANA
Defendants only believe that, until discovery is completed and summary judgment is decided, “the
[c]ourt [will] lack the necessary information to determine whether potential class members were
‘employees of Defendants’ or ‘affected employees’ who meet the class definition as certified in
this case.” (ECF No. 93 at 6 (citing ECF No. 133 at 11); ECF No. 147 at 6 (citing ECF No. 133 at
11).) These concerns do not suggest that SCANA Defendants will be harmed by the issuance of
class notice, but rather concern a defense put forth by SCANA Defendants and the underlying
merits of the dispute. (See ECF No. 93 at 5–6; ECF No. 147 at 5–6.) Indeed, SCANA Defendants
even state that “a revised notice would need to be sent to class members to redefine the nature of
the action and the class claims, issues, or defenses” if they prevail on a summary judgment motion.
(See ECF No. 93 at 6; ECF No. 147 at 6.) While SCANA Defendants’ concern about a revised
notice may be sincere, Pennington Plaintiffs would bear the costs of any revised notices that may
issue. See Eisen, 417 U.S. at 178–79. SCANA Defendants’ failure to show any harm in the event
that class notice is issued is insufficient to delay the delivery of notice. See Adoma v. Univ. of Phx.,
Inc., No. CIV. S–10–0059 LKK/GGH, 2010 WL 4054109, at *4 (E.D. Cal. Oct. 15, 2010) (“The
defendants have not demonstrated that they will suffer any irreparable harm if class notice is
disseminated.”).
On the other hand, class members would be harmed by a further delay in notice because
they were allegedly harmed on or about July 31, 2017, which is when they were terminated, and
this action has been on the court’s docket since August 8, 2017, it is now June 2019. (See ECF
Nos. 1, 41.) Moreover, the court has already certified the class, which delineates class membership,
and the parties are actively engaged in discovery. Pennington, 327 F.R.D. at 94–95. Accordingly,
the court discerns a great harm to class members if there is further delay in class notice because it
12

has been two years since the commencement of this action. See Beltran v. InterExchange, Inc.,
C/A No. 14–cv–03074–CMA–CBS, 2018 WL 1704633, at *5–6 (D. Colo Apr. 9, 2018)
(discerning “no reason to delay class notification” when waiting on an appellate court’s ruling
would “unacceptably further delay the resolution of [the] litigation”); In re Home-Stake Prod. Co.
Sec. Litig., 76 F.R.D. 351, 380 (N.D. Okla. 1977) (“It is well established that notice must be
distributed to all class members at the earliest possible time.” (citation omitted)). This harm to
class members favors the imminent issuance of class notice. See Beltran, 2018 WL 1704633, at
*5–6. Because there is a great harm to class members and SCANA Defendants have failed to show
any harm to themselves, notice should issue at this time. See id; Adoma, 2010 WL 4054109, at *4;
Tylka, 182 F.R.D. at 579; R&D Bus. Sys., 150 F.R.D. at 91.
The parties vigorously dispute the cases upon which the court should rely upon. (Compare
ECF No. 93 at 5–6, and ECF No. 147 at 5–6, with ECF No. 97 at 6–7, and ECF No. 151 at 6–7.)
SCANA Defendants submit that the court should rely upon Guippone, while Pennington Plaintiffs
forcefully argue that the court should reject Guippone and rely upon Ramcharan. (Compare ECF
No. 93 at 5–6, and ECF No. 147 at 5–6, with ECF No. 97 at 6–7, and ECF No. 151 at 6–7.) In
Guippone, a case involving the WARN Act, the United States District Court for the Southern
District of New York stayed the transmission of class notice “pending the court’s ruling on any
motion that [a] defendant [] may bring for summary judgment.” 2011 WL 1345041, at *8. Even
though, like the case here, a joint-employer theory was at issue, the court was advised by counsel
that they were “indeed planning to make [] a motion” for summary judgment on a number of issues
at the close of discovery. Id. The Guippone court cites no legal authority when deciding to stay the
dissemination of class notice. See id. In contrast, on reconsideration of a prior decision staying
notice to class members, the Ramcharan court noticed that numerous cases were not addressed by
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the Guippone court, and its prior reliance upon Guippone was misplaced. 2015 WL 4275534, at
*4. Changing its earlier decision to stay the issuance of class notice, the Ramcharan concluded, in
light of the prevalent legal authority, that class members should be notified of the class action “in
advance of the summary judgment motion that may determine [a party’s] liablity . . . .” Id. Given
the lack of legal authority addressed by the Guippone court and conclusory nature of the opinion,
the court declines to follow down its path. See 2011 WL 1345041, at *8. Moreover, unlike the
Guippone court, this court has not been directly advised by counsel of any summary judgment
motions that will be made at the close of discovery, whenever that may be completed among the
various parties. Id. For this case, Ramcharan is a well-reasoned decision—and is the better
reasoned decision for that matter—because it provides a thorough examination of the competing
considerations for the timing of class notice. See 2015 WL 4275534, at *1–5. SCANA Defendants’
reliance upon Guippone is, at best, misplaced, and, after careful consideration, the court declines
to follow that decision for this specific dispute.
Although Rule 23 does not provide a specific time for the transmission of class notice, it
certainly does not foreclose the delivery of notice before summary judgment proceedings. See FED.
R. CIV. P. 23(c)(2)(B). Moreover, were the court to adopt SCANA Defendants’ position regarding
a delayed issuance of class notice, there would be constitutional ramifications concerning the due
process rights of class members. See DeJulius, 429 F.3d at 944; Johnson v. Gen. Motors Corp.,
598 F.2d 432, 438 (5th Cir. 1979) (“Before an absent class member may be forever barred from
pursuing an individual damage claim, however, due process requires that he receive some form of
notice that the class action is pending and that his damages claims may be adjudicated as part of
it.” (emphasis added)). The court declines to go down such a questionable path that can be easily
avoided with the swift, forthcoming dissemination of class notice. See generally Bell Atl. Md., Inc.
14

v. Prince George’s Cty., Md., 212 F.3d 863, 865 (4th Cir. 2000) (“[C]ourts should avoid deciding
constitutional questions unless they are essential to the disposition of a case.” (citation omitted)).
For these reasons, it is appropriate for the issuance of class notice at this time, and SCANA
Defendants’ argument is contrary to the weight of authority and, therefore, strikingly unpersuasive.
B. The Contents and Alleged Deficiencies of Pennington Plaintiffs’ Class Notice
i. The Current and General Contents of the Class Notice
The Federal Rules of Civil Procedure specifically require that Pennington Plaintiffs’ class
notice must “clearly and concisely state in plain, easily understood language” the following:
(i) the nature of the action; (ii) the definition of the class certified; (iii) the class
claims, issues, or defenses; (iv) that a class member may enter an appearance
through an attorney if the member so desires; (v) that the court will exclude from
the class any member who requests exclusion; (vi) the time and manner for
requesting exclusion; and (vii) the binding effect of a class judgment on members
under Rule 23(c)(3).
FED. R. CIV. P. 23(c)(2)(B)(i)–(vii). First, as it relates to the “nature of the action,” the second page
of the notice includes language specifying that the dispute involves the violation of “rights under
the Federal Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 et seq. (“Warn
Act”) and this action seek[s] to recover 60 days’ wages and ERISA benefits . . . .” (ECF No. 89-2
at 2; ECF No. 143-2 at 2.) On the first page, the notice is specifically geared to those employees
who worked at V.C. Summer. (ECF No. 89-2 at 1; ECF No. 143-2 at 1.) The court finds that this
language is sufficient to describe “the nature of the action” because it directly states who is
involved and the federal laws at issue. (See ECF No. 89-2 at 1–2; ECF No. 143-2 at 1–2.) Second,
examining the “definition of the class certified,” on the first and fourth pages, the proposed notice
uses the exact same language that the court has approved for defining the certified class. (Compare
ECF No. 89-2 at 1, 4, and ECF No. 143-2 at 1, 4, with Pennington, 327 F.R.D. at 95, and ECF No.
133 at 11.) In its current form, the class notice does not contain anything regarding Fluor and
15

SCANA Defendants’ defenses, which is required by Rule 23(c)(2)(B)(iii). (See ECF No. 89-2 at
2–5; ECF No. 143-2 at 2–5.) However, the court addresses that issue fully in the next section
because Fluor Defendants have raised it as a problem with Pennington Plaintiffs’ class notice. See
infra Part III.B.ii.a. On the fourth page, Pennington Plaintiffs’ notice explicitly states that class
members “may appear by [his or her] own counsel if [he or she] [is] a [c]lass [m]ember,” which
thereby satisfies the requirement of advising class members that they may appear in the action
through legal counsel. (ECF No. 89-2 at 4; ECF No. 143-2 at 4.)
Rule 23(c)(2)(B) expressly requires class notice to state that “the court will exclude from
the class any member who requests exclusion[.]” FED. R. CIV. P. 23(c)(2)(B)(v). As stated by the
Supreme Court, this is an “unambiguous requirement.” Eisen, 417 U.S. at 176. Pennington
Plaintiffs’ proposed notice does not include anything saying that “the court will exclude from the
class any member who requests exclusion.” (See ECF No. 89-2 at 4–6; ECF No. 143-2 at 4–6.) As
discussed in more detail below, Pennington Plaintiffs’ notice is revised to conform with Rule
23(c)(2)(B)(v). See infra Part III.B.ii.b. With respect to “the time and manner for requesting
exclusion,” Pennington Plaintiffs’ proposed notice specifically instructs class members to “sign
[a] form below and mail it by First[-]Class Mail to Outten & Golden LLP, 685 Third Avenue, 25th
Floor, New York, New York 100117, (212)[-]245-1000, Attn: Rene S. Roupinian” in order to
obtain exclusion from the class action. (ECF No. 89-2 at 4; ECF No. 143-2 at 4.) Currently, the
due date of the exclusion form is left blank. (See ECF No. 89-2 at 4–5; ECF No. 143-2 at 4–5.)
While the “manner for requesting exclusion” is sufficient based upon the language above, the
“time” for requesting exclusion must be expressly decided upon. FED. R. CIV. P. 23(c)(2)(B)(vi).
This issue is addressed in more detail below. See infra Part III.B.ii.b. Lastly, Pennington Plaintiffs’
class notice explicitly states that those who are not excluded are “automatically . . . a [c]lass
16

[m]ember and [] bound by any judgment (whether favorable or unfavorable) or court-approved
settlement in the case . . . .” (ECF No. 89-2 at 4; ECF No. 143-2 at 4.) In accordance with the
Federal Rules of Civil Procedure, the aforementioned language is sufficient to inform class
members of “the binding effect of a class judgment on members under Rule 23(c)(3).” FED. R.
CIV. P. 23(c)(2)(B)(vii).
Based upon these findings, Pennington Plaintiffs’ class notice “clearly and concisely”
conveys the nature of the action, definition of the class certified, class claims at issue, opportunity
for class members to appear through an attorney, manner for requesting exclusion, and binding
effect of a class judgment. FED. R. CIV. P. 23(c)(2)(B)(i)–(iv), (vi)–(vii). However, Pennington
Plaintiffs’ class notice is problematic as it relates to “clearly and concisely” explaining the defenses
of SCANA and Fluor Defendants, the court’s compulsory exclusion of class members requesting
exclusion, and the time for requesting exclusion. FED. R. CIV. P. 23(c)(2)(B)(iii), (v), (vii).
Accordingly, Pennington Plaintiffs’ original notice must be denied unless it conforms with the
revisions set forth in their Reply Memorandum of Law (ECF Nos. 97, 151) and this court’s Order
and Opinion.
ii. Fluor Defendants’ Identification of Alleged Deficiencies of the Class Notice
Turning to the arguments raised by Fluor Defendants regarding Pennington Plaintiffs’ class
notice, Fluor Defendants raise approximately nine (9) issues with the proposed notice. (ECF No.
94 at 4–5; ECF No. 148 at 4–5.) First, the court addresses each of Fluor Defendants’ contentions
in turn. See generally Stuart v. State Farm Fire & Cas. Co., Case No. 4:14-cv-4001, 2019 WL
2427956, at *3–9 (W.D. Ark. June 10, 2019) (addressing each specific challenge to a class notice
under Rule 23). After discussing Fluor Defendants’ objections to the class notice, the court then

17

revises a specific aspect of Pennington Plaintiffs’ proposed notice to conform with the Federal
Rules of Civil Procedure and resolves other issues of concern. See infra Part III.B.ii.b.
a. Fluor Defendants’ Objections to Deficiencies of the Class Notice
First, Fluor Defendants take issue with the notice containing a direct reference to Fluor
Corporation. (ECF No. 94 at 6; ECF No. 148 at 6.) However, because Fluor Corporation remains
a party to this action, it is properly included within the notice. See generally Anderson-Butler v.
Charming Charlie Inc., C/A No. 2:14–01921 WBS AC, 2015 WL 4599420, at *7 (E.D. Cal. July
29, 2015) (approving a proposed notice when “[t]he full notice explain[ed] the proceedings”).
Second, as it specifically relates to the class claims at issue, Fluor Defendants wish to indicate that
the claims involve whether terminated employees were terminated “without cause” as opposed to
“without notice,” which was included in the proposed class notice. (Compare ECF No. 89-2 at 2,
and ECF No. 143-2 at 2, with ECF No. 94 at 4, and ECF No. 148 at 4.) Pennington Plaintiffs
expressly agree to modify its original language from “without notice” to “without 60 days’ notice.”
(ECF No. 97 at 14; ECF No. 151 at 14.) The court concurs that this change accurately reflects the
true nature of the class claims, which is whether terminated employees received sufficient notice
under the WARN Act. (ECF No. 41 at 22 ¶ 124.) Thus, the court approves Pennington Plaintiffs’
change to the class notice and partly sustains Fluor Defendants’ objection.
Third, Fluor Defendants request that Plaintiffs Darron Eigner, Jr. and Bernard A. Johnson
be excluded from the class notice because they may be removed as named plaintiffs from the
action. (ECF No. 94 at 4; ECF No. 148 at 4.) To date, there is a pending Motion to Remove Named
Plaintiffs before the court. (ECF Nos. 109, 161.) However, Pennington Plaintiffs agree “to conform
the notice to any determination of the [c]ourt concerning [those] individuals prior to distribution.”
(ECF No. 97 at 15; ECF No. 151 at 15.) Thus, because of their agreement to follow the court’s
18

decision, the court orders Pennington Plaintiffs to remove Plaintiffs Darron Eigner, Jr. and Bernard
A. Johnson from the notice if they are ultimately removed as named plaintiffs by the court.
Accordingly, Fluor Defendants’ objection is sustained in this respect.
Fourth, Fluor Defendants object to the class notice because it lacks their applicable
defenses. (ECF No. 94 at 4; ECF No. 148 at 4.) Pennington Plaintiffs responded to Fluor
Defendants’ concern by expressly agreeing to a revision and provided the court with a revision
that included some of the defenses of Fluor and SCANA Defendants. (ECF No. 97 at 15; ECF No.
151 at 15.) The proposed revision complies with Rule 23(c)(2)(B)(iii), which the court determined
was needed in the preceding section. See supra Part III.B.i. Accordingly, the court approves this
revision to the class notice because it complies with the Federal Rules of Civil Procedure.
Fifth, Flour Defendants argue that the current class notice “improperly suggest[s] that class
members will receive benefits if they choose not to opt [] out of the class.” (ECF No. 94 at 4; ECF
No. 148 at 4.) However, Pennington Plaintiffs’ class notice is clearly conditional on a number of
factors because it explicitly states that class members “will receive whatever benefits to which
[they] may be entitled as a member of the class and if [he or she is] determined to be eligible as a
[c]lass [m]ember.” (ECF No. 89-2 at 4; ECF No. 143-2 at 4.) Additionally, the proposed notice
expressly states the following to class members as it pertains to opting out of the action:
If you do nothing, you automatically will be a [c]lass [m]ember and be bound by
any judgment (whether favorable or unfavorable) or court-approved settlement in
the case, except that, before court approval or any proposed settlement, you, as a
[c]lass [m]ember, will receive notice of that proposed settlement and will be
afforded an opportunity to object to it.
(ECF No. 89-2 at 4; ECF No. 143-2 at 4.) The aforementioned language does not “improperly
suggest” that class members will receive benefits for not opting out because it plainly conditions
any benefits by using the words “may” and “if.” (ECF No. 89-2 at 4; ECF No. 143-2 at 4.)
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Moreover, the notice makes clear that class members are bound by favorable and unfavorable
judgments from the court. (ECF No. 89-2 at 4; ECF No. 143-2 at 4.) Accordingly, Fluor
Defendants’ fifth objection to the class notice is wholly without merit and at odds with the
proposed notice’s express language.
Sixth, Fluor Defendants wish for the class notice to inform class members that they may
be subject to “discovery obligations.” (ECF No. 94 at 4–5; ECF No. 148 at 4–5.) Generally, in a
class action arising under Rule 23 of the Federal Rules of Civil Procedure, “[a]bsent a showing of
[a] particularized need, the [c]ourt will not permit general discovery from passive class members.”
In re Carbon Dioxide Indus. Antitrust Litig., 155 F.R.D. 209, 212 (M.D. Fla. 1993). See also
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 810 (1985) (“Unlike a defendant in a normal civil
suit, an absent class-action plaintiff is not required to do anything. He may sit back and allow the
litigation to run its course, content in knowing that there are safeguards provided for his
protection.”); City of Farmington Hills Emps. Ret. Sys. v. Wells Fargo Bank, N.A., Civ. No. 10–
4372 (DWF/JJG), 2012 WL 12898811, at *3 (D. Minn. July 27, 2012) (“Therefore, despite
Defendant’s heavy reliance on Rule 26, discovery of absent class members is disfavored and Rule
26’s guidance is only tangentially relevant.” (citations omitted)); Kline v. First W. Gov’t, No. Civ.
A. 83-1076, 1996 WL 122717, at *2 (E.D. Pa. Mar. 11, 1996) (“[U]pon survey of the cases, it is
safe to state that discovery of absent class members is disfavored.”). Fluor Defendants fail to show
any “particularized need” for including discovery information within the class notice and,
certainly, have not successfully rebutted the general disfavor of placing discovery obligations upon
class members. See Phillips Petroleum Co., 472 at 810; City of Farmington Hills Emps. Ret. Sys.,
2012 WL 12898811, at *3; Kline, 1996 WL 122717, at *2. Thus, the court declines to place any
discovery obligations within the class notice and finds Fluor Defendants’ request unsupported by
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the current trend in case law. See generally Graham v. Hall’s S. Kitchens, LLC, C/A No. 2:18-cv02621-RMG, 2018 WL 6177971, at *3 (D.S.C. Nov. 27, 2018) (declining to place language
involving discovery obligations within a class notice for a collective action under the FLSA).
Seventh, Fluor Defendants request that class members “be provided [with] the opportunity
to electronically sign and submit the [e]xclusion [f]orm.” (ECF No. 94 at 5; ECF No. 148 at 5.)
Pennington Plaintiffs, on the other hand, submit that an electronic exclusion form is unwarranted
because they “have not asked for electronic transmission of the class notice,” but insist upon
sending notice by means of First-Class Mail. (ECF No. 97 at 11; ECF No. 151 at 11.) Pennington
Plaintiffs emphasize that “[a]nyone who wishes to steer clear of the class action, can put a stamp
on an envelope and drop the form in the mail.” (ECF No. 97 at 12; ECF No. 151 at 12.) The Federal
Rules of Civil Procedure permits the transmission of class notice “by one or more of the following:
United States mail, electronic means, or other appropriate means.” FED. R. CIV. P. 23(c)(2)(B)
(emphasis added). While Rule 23 permits the use of electronic means for the dissemination of class
notice, it does not mandate a plaintiff to honor the transmission requests of a defendant. See id.
Here, Pennington Plaintiffs expressly indicate that they are willing to permit an electronic means
for class members to opt out when that class member receives notice by email and not through the
postal channels. (ECF No. 97 at 11; ECF No. 151 at 11.) Because Pennington Plaintiffs seem to
agree that a means of electronic exclusion may be necessary, the court will sustain Fluor
Defendants’ challenge, but only as it relates to those class members who receive notice through
electronic means. Thus, Pennington Plaintiffs are directed to create an electronic, exclusion form.
See generally Grunin v. Int’l House of Pancakes, 513 F.2d 114, 121 (8th Cir. 1975) (“[T]he
mechanics of the notice process are left to the discretion of the court subject only to the broad
‘reasonableness’ standards imposed by due process.” (citation omitted)).
21

Eighth, Fluor Defendants request that the opt-out deadline “be based on the date that class
members postmark and/or electronically submit the [e]xclusion [f]orm, rather than the date
received by Plaintiffs’ counsel, as Plaintiffs’ proposal improperly limits the opt-out period.” (ECF
No. 94 at 5; ECF No. 148 at 5.) In response to Fluor Defendants’ suggestion, Pennington Plaintiffs
expressly agree to Fluor Defendants’ proposal. (ECF No. 97 at 16; ECF No. 151 at 16.)
Specifically, Pennington Plaintiffs submit a proposed revision that states that the exclusion form
“must be postmarked no later than[] [deadline date][,] 2019.” (ECF No. 97 at 16; ECF No. 151 at
16.) The court concurs that this change appropriately notifies class members of “the time and
manner for requesting exclusion.” FED. R. CIV. P. 23(c)(2)(B). Thus, the court approves
Pennington Plaintiffs’ change to the class notice and partly sustains Fluor Defendants’ objection
in this regard. See Murphy v. LenderLive Network, Inc., C/A No. 13–cv–03135–RBJ, 2014 WL
539615, at *7 (D. Colo. Oct. 22, 2014)
Lastly, but certainly not least, Fluor Defendants request thirty (30) days to compile the
contact information for class members, while Pennington Plaintiffs propose ten (10) days.
(Compare ECF No. 94 at 5, and ECF No. 148 at 5, with ECF No. 97 at 17, and ECF No. 151 at
17.) Fluor Defendants propose thirty (30) days because of the “large number of plaintiffs.” (ECF
No. 94 at 5, ECF No. 148 at 5.) Pennington Plaintiffs believe that ten (10) days is sufficient because
Fluor Defendants “had eight months to compile the class list.” (ECF No. 97 at 17; ECF No. 151 at
17.) Pursuant to Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional
to the needs of the case . . . .” FED. R. CIV. P. 26(b)(1). Generally, the scope of discovery under
Rule 26 is broad. See Moore v. Bass Pro Outdoor World, LLC, C/A No. 2:17-cv-3228-RMG, 2018
WL 2980328, at *1 (D.S.C. June 14, 2018) (citations omitted). Federal district courts have “wide
22

latitude in controlling discovery and [their] rulings will not be overturned absent a showing of
clear abuse of discretion.” Ardrey v. United Parcel Serv., 798 F.2d 679, 683 (4th Cir. 1986). See
also Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995).
Here, the parties do not dispute whether Pennington Plaintiffs should have access to the class
members’ contact information, but only dispute the time in which Fluor Defendants must provide
that information. (Compare ECF No. 94 at 5, and ECF No. 148 at 5, with ECF No. 97 at 17, and
ECF No. 151 at 17.) Pursuant to its “wide latitude in controlling discovery,” the court will permit
Fluor Defendants with thirty (30) days to provide Pennington Plaintiffs with the contact
information of class members, which the court expects to be organized and correct information,
because, according to their own representation, there is a “large number of plaintiffs.” Ardrey, 798
F.2d at 683.
b. The Court’s Revisions to the Class Notice & Other Issues of Concern
In addition to the foregoing set forth above, the court takes the opportunity to revise
Pennington Plaintiffs’ class notice, order the parties to agree upon a postmark deadline for opt-out
period, address the disagreement among the parties concerning the use of telephone numbers, and
determine whether Pennington Plaintiffs should include paid postage for the exclusion form that
will be delivered to class members. See generally King v. Credit Card Receivables Fund, Inc., No.
12–61834–Civ., 2013 WL 5761367, at *1 (S.D. Fla. Oct. 1, 2013) (adding “modifications” to class
notice); Adoma, 2010 WL 4054109, at *3–4 (changing aspects of a class notice evaluated under
Rule 23). First, the Federal Rules of Civil Procedure expressly require that “the court will exclude
from the class any member who requests exclusion[.]” FED. R. CIV. P. 23(c)(2)(B)(v). Pennington
Plaintiffs’ notice contains nothing about how the court is compelled to exclude any class member
requesting exclusion. (See ECF No. 89-2 at 4–6; ECF No. 143-2 at 4–6.) Accordingly, the court
23

modifies Pennington Plaintiffs’ class notice to include a sentence pertaining to the court’s
affirmative obligation under the Federal Rules of Civil Procedure to exclude class members
desiring exclusion, and the revision is included under the section entitled “WHAT TO DO.” (See
ECF No. 89-2 at 4–6; ECF No. 143-2 at 4–6.) In order to ensure that class notice includes the time
parameters for exclusion, which is an express requirement of Rule 23(c)(2)(B), the court orders
the parties to decide upon the postmark deadline for exclusion from the class action. FED. R. CIV.
P. 23(c)(2)(B)(vi).
Secondly, there is disagreement among the parties regarding Pennington Plaintiffs’ access
to the telephone numbers of class members and whether paid postage for the exclusion form should
accompany the class notice. (Compare ECF No. 94 at 2–4, and ECF No. 148 at 2–4, with ECF No.
97 at 8–12, and ECF No. 151 at 8–12.) Under the FLSA, where class members are required to opt
in a class action and not opt out, federal district courts are divided as to whether plaintiffs should
have access to the telephone numbers of class members, and, therefore, some courts require
plaintiffs to show “special circumstances” for the telephone numbers. Compare Cedillos-Fuevara
v. Mayflower Textile Servs., Co., C/A No. GLR–14–196, 2014 WL 7146968, at *4 (D. Md. Dec.
12, 2014), and Encinas v. J.J. Drywall Corp., 265 F.R.D. 3, 10–11 (D.D.C. 2010) (finding that the
plaintiffs failed to show a “special need for the disclosure of class members’ telephone numbers
to facilitate providing them with notice of the suit”), with Craighhead v. Full Citizenship of Md.,
Inc., 2018 WL 925416, at *3 (D. Md. Feb. 16, 2018) (not requiring a showing of “special needs”
for plaintiffs to receive telephone numbers for class members under the FLSA), and Boyd v. SFS
Commc’ns, LLC, C/A PJM 15-3068, 2017 WL 386539, at *3 (D. Md. Jan 27, 2017) (same).
However, under Rule 23 of the Federal Rules of Civil Procedure, federal courts have permitted
plaintiffs to have access to telephone numbers and have not required a showing of a “special need.”
24

See Minter v. Wells Fargo Bank, N.A., 283 F.R.D. 268, 275–76 (D. Md. 2012) (permitting class
counsel to utilize social security numbers and phone numbers “to locate class members whose
contact information is not available”). This dichotomy likely exists because—as opposed to the
FLSA’s statutory scheme, which requests potential class members to formally opt in the
litigation—Rule 23 requires class members to receive notice of the opportunity to opt out of the
litigation, which creates wholly different incentives for class counsel to contact class members.
Compare FED. R. CIV. P. 23(c)(2)(B)(v) (“[T]he court will exclude from the class any member
who requests exclusion . . . .”), with 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff
to any such action unless he gives his consent in writing to become such a party and such consent
is filed in the court in which such action is brought.”). Moreover, the United States Supreme Court
has declared that “the mere possibility of abuses does not justify the routine adoption of a
communications ban that interferes with the formation of a class or the prosecution of a class action
in accordance with the Rules.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 104 (1981). Because the
incentives differ and there is no requirement that plaintiffs show “special circumstances” for the
telephone numbers in a Rule 23 action, pursuant to this court’s authority under Rule 23(d), Fluor
Defendants must provide Pennington Plaintiffs with the telephone numbers, within its possession,
for class members, so that they can receive proper notice of the action if needed and be afforded
the opportunity to opt out of the action if they so wish. 4 See generally Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 355 (1978) (“[W]e agree . . . that Rule 23(d) also authorizes a district court
in appropriate circumstances to require a defendant’s cooperation in identifying the class members
to whom notice must be sent.”); Putnam v. Eli Lilly & Co., 508 F. Supp. 2d 812, 813–14 (C.D.

4

The court is not concerned about any privacy concerns because they could be easily mitigated.
See generally Salazar v. McDonald’s Corp., Case No. 14-cv-02096-RS(MEJ), 2016 WL 736213,
at *5 (N.D. Cal. Feb. 25, 2016).
25

Cal. 2007) (recognizing the split among federal courts concerning whether class representatives
should have access to telephone numbers at the precertification stage and, on balance, requiring
the disclosure of the information for a Rule 23 class). See also Minter, 283 F.R.D. at 275–76.
Finally, the parties also cannot agree about whether Pennington Plaintiffs should be
required to include paid postage for the return of the exclusion form. (Compare ECF No. 94 at 3–
4, and ECF No. 148 at 3–4, with ECF No. 97 at 11–12, and ECF No. 151 at 11–12.) The Federal
Rules of Civil Procedure do not mandate that plaintiffs bear the cost of paid postage for the return
of an exclusion form. See FED. R. CIV. P. 23(c)–(d). Currently, federal district courts seem divided
on whether to require class notice to include pre-paid, pre-stamped postage for the return of an
exclusion form. Compare Murphy, 2014 WL 5396165, at *6 (ordering class notice to include “a
pre-stamped[,] pre-addressed envelope for easy return of the opt-out form in the event that the
notified class member decides he or she does not want to take part in the action”), with Hershey v.
ExxonMobil Oil Corp., No. 07–1300–JTM, 2012 WL 1205724, at *2 (D. Kan. Apr. 11, 2012)
(“The court finds that the plaintiff’s proposed notice procedure is not defective on the
grounds . . . [that it] does not include prepared opt-out forms along with pre-paid postage.”). In
Murphy v. Lenderlive, the United States District Court for District of Colorado ordered that the
plaintiffs include a “pre-stamped[,] pre-addressed” envelope with an opt-out form. 2014 WL
5396165, at *6. Ironically, Pennington Plaintiffs’ counsel was also the undersigned for the class in
Murphy. (ECF No. 97 at 12; ECF No. 151 at 12.) According to Pennington Plaintiffs’ undersigned,
in Murphy, “[o]ne person opted out[,]” and the other pre-paid envelopments “went to waste.” (ECF
No. 97 at 12; ECF No. 151 at 12.) Based upon the representation from Pennington Plaintiffs’
counsel and given that this class action may include five thousand (5,000) class members (ECF
Nos. 1, 41), a significantly larger class than that in Murphy, the court declines to require the class
26

notice to include pre-paid, pre-stamped postage for the return of the exclusion form because it may
waste economic resources. See Murphy, 2014 WL 5396165, at *1–3; Hershey, 2012 WL 1205724,
at *2. For the aforementioned reasons, the court declines to order Pennington Plaintiffs to include
a pre-paid, pre-stamped postage envelope for the return of the exclusion form.
In sum, based upon the foregoing, the court, sua sponte, revises Pennington Plaintiffs’ class
notice to conform with Rule 23(c)(2)(B)(v) of the Federal Rules of Civil Procedure. Additionally,
the court orders Fluor Defendants to provide Pennington Plaintiffs with the telephone numbers,
within their possession, of the class members. Lastly, the court declines to order Pennington
Plaintiffs to include a pre-paid, pre-stamped envelope with the class notice.
IV. CONCLUSION
After careful consideration of all the parties’ positions and for the reasons set forth herein,
the court GRANTS IN PART and DENIES IN PART Pennington Plaintiffs’ Motion for a
Supplemental Order Approving the Sending of Notice of Class Certification and Related Relief
(ECF Nos. 89, 143). Specifically, the court GRANTS Pennington Plaintiffs’ request to send class
notice at this time, but the court DENIES the dissemination of the original notice put forth by
Pennington Plaintiffs in their Motion. However, the court GRANTS the sending of class notice
that conforms with Pennington Plaintiffs’ Reply Memorandum of Law (ECF Nos. 97, 151) and
this court’s Order and Opinion. Further, the court ORDERS (1) Fluor and SCANA Defendants to
provide Pennington Plaintiffs with any outstanding class information within thirty (30) days,
including telephone numbers currently within their possession; (2) Pennington Plaintiffs to
provide class members with the availability to opt out of the action by electronic means if those
class members receive electronic notice; (3) Pennington Plaintiffs to submit a proposed notice
plan, which should specify when the class notice will be disseminated and a deadline for requesting
27

exclusion, to the court within thirty-five (35) days; (4) Pennington Plaintiffs to remove Plaintiffs
Darron Eigner, Jr. and Bernard A. Johnson from the class notice if they are ultimately removed as
named plaintiffs pursuant to Fluor Defendants’ Motion to Remove Named Plaintiffs (ECF Nos.
109, 161); and (5) Pennington Plaintiffs and Fluor and SCANA Defendants to jointly decide upon
a mutual deadline for the opt-out period of the class action. For the convenience of the parties,
the approved notice is attached to the court’s Order and Opinion, and the court ORDERS the
parties to jointly provide the court with the class notice if further changes are made.
IT IS SO ORDERED.

United States District Judge

June 20, 2019
Columbia, South Carolina

28