Curtis et al v. Time Warner Cable Inc

Filing 73

ORDER granting 44 Motion to Certify Class Pursuant to FLSA, 28 U.S.C. § 216 (b), conditionally certifying the collective action. Signed by Honorable Joseph F Anderson, Jr on 05/03/2013.(bshr, ). Modified on 5/3/2013 to replace document with corrected version(bshr, ).

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Keith Curtis and Tyneshia Brooks, individually
and on behalf of all others similarly situated,

C/A No. 3:12-cv-2370-JFA

Plaintiffs,
vs.
ORDER ON
CONDITIONAL CLASS
CERTIFICATION

Time Warner EntertainmentAdvance/Newhouse Partnership,
Defendant.

Introduction
Plaintiffs Keith Curtis and Tyneshia Brooks brought the instant suit asserting, among
others, claims under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. Plaintiffs are
former inbound sales (IBS) representatives (also known as “telesales” representatives) for
Defendant Time Warner Entertainment-Advance/Newhouse Partnership (Time Warner) who
worked in Time Warner’s call center in West Columbia, South Carolina. Plaintiffs allege
damages to themselves and to members of a putative class based on Time Warner’s alleged
policy requiring IBS representatives to reconcile commission-eligible sales they recorded and
tracked with commission-eligible sales recorded via Time Warner’s sales-tracking software
during unpaid time.
This matter is before the court on the motion of Plaintiffs for conditional certification of
an FLSA collective action and for the issuance of a court-facilitated notice to prospective class
members. See ECF No. 44. Time Warner opposes conditional certification. See ECF No. 59.
After considering the briefs of the parties and the arguments presented at a hearing on this
motion held on April 15, 2013, the court has determined that it will conditionally certify the
collective action as set forth below.

Summary of Plaintiff’s FLSA Claims
Time Warner’s IBS representatives are responsible for answering incoming calls from
customers and potential customers and attempting to sell Time Warner’s products and services to
those callers. Time Warner pays its IBS representatives an hourly rate and commissions on sales
they made. When answering calls, IBS representatives use billing software, such as a program
known as ICOMS, to view a customer’s account, enter sales information, and schedule
installation of Time Warner products and services. IBS representatives can check the status of
their sales and commissions using the GLOCENT sales-tracking software. Plaintiffs allege that
Time Warner’s ICOMS and GLOCENT software failed to properly record the sales and
commissions IBS representatives earned. Thus, Plaintiffs contend that it was necessary for IBS
representatives to periodically “reconcile” their sales. For example, IBS representatives might
write down their commission-eligible sales and later check GLOCENT to verify that they had
received credit for these sales.

The GLOCENT software allowed employees to submit

“discrepancy reports” to Time Warner when the employees felt that the software had not
properly credited a sale. Plaintiffs allege that Time Warner instructed its IBS representatives to
perform such reconciliation “off the clock,” which resulted in these employees performing
uncompensated work in violation of the FLSA.
Legal Standard
Section 216(b) of the FLSA provides:
An action . . . may be maintained against any employer (including a public
agency) in any Federal or State court of competent jurisdiction by any one or
more employees for and in behalf of himself or themselves and other employees
similarly situated. 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.

2

Although the FLSA does not require district courts to do so, they “have discretion in appropriate
cases to implement [§ 216(b)] . . . by facilitating notice to potential plaintiffs” of the action and
that they may opt-in as plaintiffs. Hoffman–La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989).
District courts deciding whether to certify an FLSA collective action typically engage in a twostep process. See, e.g., Zavala v. Wal Mart Stores, Inc., 691 F.3d 527, 535–36 (3d Cir. 2012);
Myers v. Hertz Corp., 624 F.3d 537, 554–55 (2d Cir. 2010); Morgan v. Family Dollar Stores,
Inc., 551 F.3d 1233, 1258–62 (11th Cir. 2008); Cromer v. Wal-Mart Stores, Inc., 454 F.3d 544,
546–47 (6th Cir. 2006); Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir.
2001); Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213–14 (5th Cir. 1995), overruled in part
on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). In general, at the first
step, the court considers “whether other similarly situated employees should be notified.”1
Morgan, 551 F.3d at 1260. The second step, which typically occurs after substantial discovery
has taken place, “is triggered by an employer’s motion for decertification.” Id. at 1261. Here,
because it has “a much thicker record than it had at the notice stage, [the court] can therefore
make a more informed factual determination of similarity.” Id. Although the Fourth Circuit has
not directly addressed the appropriate standard for certifying a collective action under § 216(b),
district courts in this circuit, including this court, follow the process set forth in the cases
identified above. See Pelczynski v. Orange Lake Country Club, Inc., 284 F.R.D. 364, 367–68
(D.S.C. 2012); Simons v. Pryor’s, Inc., 2011 WL 6012484, at *1–*2 (D.S.C. Nov. 30, 2011);
Steinberg v. T.Q. Logistics, Inc., 2011 WL 1335191, at *1–*2 (D.S.C. Apr. 7, 2011); see
generally Purdham v. Fairfax Cnty. Pub. Schs., 629 F. Supp. 2d 544, 547–48 (E.D. Va. 2009).
1

If the court grants the plaintiff’s motion at this step and conditionally certifies the collective action, it “does not
produce a class with an independent legal status, or join additional parties to the action.” Genesis Healthcare Corp.
v. Symczyk, 2013 WL 1567370, at *6 (U.S. Apr. 16, 2013). Rather, “[t]he sole consequence of conditional
certification is the sending of court-approved written notice to employees, . . . who in turn become parties to a
collective action only by filing written consent with the court.” Id. (citations omitted).

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Courts have described the plaintiff’s burden at the first, or “notice,” step using various
phrases, for example requiring that plaintiffs show a “‘reasonable basis’ for his claim that there
are other similarly situated employees,” Morgan, 551 F.3d at 1260, or that plaintiffs “make a
‘modest factual showing’ that they and potential opt-in plaintiffs ‘together were victims of a
common policy or plan that violated the law,’” Myers, 624 F.3d at 555 (citation omitted). The
cases appear to agree that this standard is “fairly lenient.” Morgan, 551 F.3d at 1261; Cromer,
454 F.3d at 547; Mooney, 54 F.3d at 1214. The plaintiff bears a “low standard of proof” at this
stage because the district court is simply “determin[ing] whether ‘similarly situated’ plaintiffs do
in fact exist.” Myers, 624 F.3d at 555. Despite the leniency of this standard, however, the
plaintiff cannot meet his or her burden simply by unsupported assertions. Id. (citation omitted);
Morgan, 551 F.3d at 1261 (citation omitted); see Zavala, 691 F.3d at 536 n.4 (noting that under
the “modest factual showing” standard, “a plaintiff must produce some evidence, ‘beyond mere
speculation,’ of a factual nexus between the manner in which the employer’s alleged policy
affected her and the manner in which it affected other employees” (citation omitted)); Purdham,
629 F. Supp. 2d at 548 (noting that the plaintiff’s burden is neither “onerous” nor “invisible”).
If the court grants the plaintiff’s motion for conditional certification, the defendant may
file a motion for decertification. At this second step, “the district court will, on a fuller record,
determine . . . whether the plaintiffs who have opted in are in fact ‘similarly situated’ to the
named plaintiffs.” Myers, 624 F.3d at 555. At this step, which “usually occurs just before the
end of discovery, or at its close,” the court’s review “is less lenient, and the plaintiff bears a
heavier burden.” Morgan, 551 F.3d at 1261 (citation omitted). Courts have identified a number
of factors to consider at this stage, including “(1) disparate factual and employment settings of
the individual plaintiffs; (2) the various defenses available to defendant[s] [that] appear to be
individual to each plaintiff; [and] (3) fairness and procedural considerations.” Id. (citations

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omitted) (alteration in original).

If the record reveals that the opt-in plaintiffs are not

substantially similar to the named plaintiffs, “the action may be ‘de-certified’ . . . , and the opt-in
plaintiffs’ claims may be dismissed without prejudice.” Myers, 624 F.3d at 555.
Although the instant case is at the first step, where as explained above courts typically
apply a more lenient standard, Time Warner argues that this court should apply an
“intermediate” standard.

In this regard, the court observes that “the statute of limitations

continues to run on unnamed class members’ claims until they opt into the collective action,” so
in most cases “courts have concluded that the objectives to be served through a collective action
justify the conditional certification of a class of putative plaintiffs early in a proceeding, typically
before any significant discovery, upon an initial showing that the members of the class are
similarly situated.” Houston v. URS Corp., 591 F. Supp. 2d 827, 831 (E.D. Va. 2008). In some
cases, however, “where the parties have already engaged in substantial discovery,” a few district
courts have “utilize[d] a somewhat heightened amount of scrutiny when reviewing the plaintiffs’
motion.” MacGregor v. Farmers Ins. Exchange, 2012 WL 2974679, at *2 (D.S.C. July 20,
2012) (quoting McClean v. Health Sys., Inc., 2011 WL 6153091, at *4 (W.D. Mo. Dec. 12,
2011)) (internal quotation marks omitted).
This court declines to follow Time Warner’s suggestion to apply the intermediate
standard. Although the parties have completed some discovery in this case, including taking
several depositions, it appears to the court that significant additional discovery remains. See
McKnight v. D. Houston, Inc., 756 F. Supp. 2d 794, 802 (S.D. Tex. 2010) (applying lenient
standard applied where some discovery had been conducted but significant additional discovery
remained to be completed). Where extensive discovery remains, courts usually apply the more
lenient standard applicable at the first step. See, e.g., id. at 802–03 (noting that the more onerous
standard is only appropriate “after discovery is largely complete and the matter is ready for

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trial”); Holt v. Rite Aid Corp., 333 F. Supp. 2d 1265, 1274 (M.D. Ala. 2004) (noting that it may
apply the intermediate standard after “the parties have conducted extensive discovery”).
Moreover, this District Court has applied the more lenient standard in cases where the parties
have engaged in some discovery.

Simons, 2011 WL 6012484, at *2–*3 (applying lenient

standard in reviewing plaintiff’s renewed motion for conditional certification after denying
original motion for conditional certification so that parties could engage in discovery); cf.
MacGregor, 2012 WL 2974679, at *2–*3 (applying “only limited additional scrutiny” to
plaintiffs’ second motion for conditional certification where parties had engaged in discovery).
Therefore, this court will apply the widely-accepted, first step standard outlined above to
Plaintiffs’ motion for conditional certification.
Discussion
In their motion, Plaintiffs ask the court to conditionally certify the following class of
persons:
All current or former non-exempt Time Warner EntertainmentAdvance/Newhouse Partnership (TWEAN) telesales and retention representatives
employed at any TWEAN call center in the United States, on or after August 20,
2009 to the present, who were required to use sales software, including but not
limited to, the GLOCENT and/or ICOMS software pursuant to their employment
by TWEAN and were instructed to reconcile their actual sales during
uncompensated time and/or breaks.
ECF No. 44-2, at 1. The court finds that Plaintiffs have made the modest factual showing
required for conditional certification. As discussed in more detail below, however, the court
believes that the class of persons to whom notification may be sent should not include retention
representatives. Further, the class should be limited to IBS or telesales representatives who used
the GLOCENT software between August 20, 2009 and June 30, 2011.
The Plaintiffs have shown a reasonable basis for their claims that they and potential optin plaintiffs together were victims of a common policy or plan that violated the law. See Myers,

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624 F.3d at 555; Morgan, 551 F.3d at 1260. For example, Plaintiffs have specifically alleged
that it was Time Warner’s company-wide policy that IBS representatives reconcile sales during
uncompensated time. Plaintiffs have also submitted the affidavit of John Oakley, a former IBS
representative at Time Warner’s West Columbia call center, which is corroborative of the
allegations in Plaintiffs’ Complaint. See ECF No. 44-1. Mr. Oakley testified that he worked
with one hundred other IBS representatives at the West Columbia call center and that the
Complaint accurately reflects his experience as an IBS representative and the experience of his
coworkers. See id. ¶¶ 24, 26.
Moreover, after the Plaintiffs filed their motion for conditional class certification, the
parties deposed Plaintiffs, Mr. Oakley, and Charmaine Harden, a current Time Warner employee
and manager of IBS representatives who supervised Mr. Oakley when he worked at Time
Warner. The depositions of Plaintiffs, Mr. Oakley, and Ms. Harden further support the existence
of a policy requiring IBS representatives to reconcile sales during uncompensated time. For
example, Plaintiff Brooks and Mr. Oakley both testified that their supervisors required them to
reconcile sales. To corroborate this testimony, Plaintiffs submitted an email from Michelle
Fordam, a former supervisor of IBS representatives, to members of her telesales team (including
Plaintiff Curtis) instructing them to “[e]nsure that [they] are checking [their] Glocent and [their]
scorecard daily.” ECF No. 63-7. Notably, other supervisors, including Fran Hass, the Director
of Inbound Sales for South Carolina, are copied on this email. Further, Plaintiff Curtis testified
that his supervisor created a printed sales tracking sheet for members of his team to use in
reconciliation.
Also, there is evidence that Time Warner required IBS representatives to reconcile sales
during unpaid time. Plaintiffs and Mr. Oakley all testified to this. Importantly, Ms. Harden
testified that when she started with Time Warner, her supervisor, Mr. Hass, directed her that IBS

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representatives were supposed to reconcile sales on their own time, or off the clock. Although
Ms. Harden is only one manager (who supervised approximately twelve to fifteen IBS
representatives), this is some evidence that there was at least an informal policy requiring offthe-clock reconciliation which was passed down from the Director of Inbound Sales for South
Carolina to managers and ultimately to the IBS representatives.2
Furthermore, Ms. Harden testified that Time Warner changed this policy via an email
sent on May 10, 2010. In particular, Tony Lewis, the Regional Director of Inbound Sales, sent
an email to Time Warner employees acknowledging problems with the GLOCENT software and
encouraging employees to reconcile sales, but directing that they do so during compensated time
only. In relevant part, the email states:
To all Inbound Sales Agents,
Over the last few weeks there have been some questions concerning how and
when to enter discrepancies for missing sales in our commission reporting tool.
Although Glocent is very accurate and records most sales accurately, there are
times when you must check your work orders and make an entry to dispute a
missing sale. It is our expectation that you perform any manual checks in
between calls as time permits. Most often, this can easily be accomplished if
done daily by checking the closed work orders from the day prior. If several days
have elapsed this becomes more difficult and time consuming. You are
encouraged to validate your work orders as no system can be 100% accurate due
to human interactions with our billing system. It is mutually beneficial to
everyone involved [that] these work orders [be] confirmed. If you are unable to
perform these checks at times of availability, please talk with your Supervisor for
a good time to perform these confirmations. At no time should these validations
occur while you are not being compensated by Time Warner Cable.

2

It appears that Ms. Harden did not explicitly follow this directive with respect to the IBS representatives she
supervised (which included Mr. Oakley but did not include Plaintiffs), as she testified that she told them they should
only reconcile during their own time if they could not do so in between calls. In the court’s view, however, this
testimony does not negate the evidence that a common policy existed; it instead goes to the “disparate factual and
employment settings of the individual plaintiffs,” which the court considers at the second step. Myers, 624 F.3d at
555.

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ECF No. 63-3 (emphasis added). This further corroborates Plaintiffs’ allegations regarding
reconciliation, problems with GLOCENT, and an informal policy requiring employees to
reconcile sales during uncompensated time prior to the date of the email.
Time Warner argues that this court should not conditionally certify a nationwide class of
potential persons because Plaintiffs have not shown evidence of a common policy or scheme
outside of the West Columbia call center. Initially, the court notes that although some discovery
has occurred, Time Warner has objected to Plaintiffs’ discovery requests to the extent they seek
information regarding any facility other than the West Columbia call center.3 In any event,
Plaintiffs have put forth some evidence that the informal policy applied elsewhere. For example,
the above-quoted email was sent to the addresses “DL-RAL-Telesales,” “dl-car-scctctelesales,”
“DL-CAR-RALTELESALES-LEADERSHIP,” and “DL-CAR-SCTELESALES-LEADERSHI
P.” According to Ms. Harden, those addresses correspond to the Raleigh and South Carolina
telesales teams, and supervisors, managers, and IBS representatives in those locations would
have received this email. Additionally, Plaintiff Curtis testified that Time Warner routed calls to
its West Columbia call center from its other locations in New York, Charlotte, and WinstonSalem. Plaintiff Curtis and Mr. Oakley testified that they heard Time Warner’s Raleigh location
used GLOCENT, and Mr. Oakley also testified that Time Warner’s New York call center uses
GLOCENT.
To rebut this evidence, Time Warner submitted the declarations of four of its current
employees, three of whom are former IBS representatives and one of whom is a former
supervisor of IBS representatives. In general, these employees aver that IBS representatives
were not required to reconcile sales; that, when they did perform reconciliation, they did so on
the clock; and that they were never encouraged or required to perform reconciliation off the

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clock.

Time Warner also submitted an analysis performed by one of its attorneys which

allegedly shows that when Plaintiffs submitted discrepancy reports, in many cases they did so
during paid time.
At this stage of the litigation, however, the court’s role is not to resolve factual disputes
or make credibility determinations. See McKnight, 756 F. Supp. 2d at 802 (citing cases). Here,
it is sufficient that Plaintiffs have shown a reasonable basis for their claim that other similarlysituated plaintiffs exist. Again, this lenient standard is in part premised on the fact that the
statute of limitations continues to run on the claims of potential opt-in plaintiffs while significant
additional discovery remains in this case.

In this regard, Plaintiffs have not yet had the

opportunity to depose the declarants Time Warner relies on, and Time Warner has not produced
in discovery the data underlying its analysis of Plaintiffs’ discrepancy reports. For example, it
may be that these data show nothing about when Plaintiffs in fact reconciled their sales, but
rather only that, after reconciliation, Plaintiffs submitted their discrepancy reports on the clock in
some cases.
Furthermore, because Time Warner advocated that this court apply the intermediate
standard, many of its arguments against conditional certification do not go to the issue of
whether Plaintiffs have made a modest factual showing that other similarly-situated potential
plaintiffs exist, but rather to whether the proposed plaintiff class is in fact similarly situated to
the named plaintiffs. The court believes it should entertain these arguments on a more complete
factual record. And if Time Warner files a motion for decertification, Plaintiffs will bear a
heavier burden. At that step, the court will consider the differences between the factual and
employment settings of all individual plaintiffs, any defenses available to Time Warner which
are individual to a particular plaintiff, and any relevant fairness and procedural considerations
3

Time Warner’s objections to discovery responses are the subject of several pending motions to compel.

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which militate in favor of decertification. At this point, however, Plaintiffs have met their
modest burden to show that similarly-situated potential plaintiffs exist, and conditional
certification is appropriate.
Time Warner has also objected to the scope of Plaintiffs’ proposed class, contending that
Plaintiffs have impermissibly broadened the class beyond the scope of their Complaint to include
retention representatives and individuals who use or used sales software other than GLOCENT.
The court agrees that the class of persons to whom notice may be sent should be narrowed in
some respects. First, Plaintiffs have shown no evidence that malfunctions in any software other
than GLOCENT caused IBS representatives to have to reconcile sales off the clock. Next,
Plaintiffs have not shown any evidence that retention representatives were required to reconcile
sales off the clock. In fact, Time Warner produced some evidence that retention representatives
do not normally earn commissions, do not use GLOCENT, and do not reconcile sales. Although
the Plaintiffs’ burden at this stage of the litigation is light, they must still “produce some
evidence, ‘beyond mere speculation,’ of a factual nexus between the manner in which the
employer’s alleged policy affected [them] and the manner in which it affected other employees.”
Zavala, 691 F.3d at 536 n.4 (citation omitted).
Additionally, Time Warner argues that the class should not extend to the present, but
rather should be limited to IBS representatives who performed reconciliation off the clock prior
to May 10, 2011, the date Mr. Lewis sent the above-quoted email. Also, Time Warner’s Vice
President of Telesales, Kevin Bush, testified that Time Warner ceased using GLOCENT
company-wide in June of 2011, see ECF No. 59-2, at ¶ 11, and thus Time Warner argues in the
alternative that the court should limit the proposed class at this point. The court agrees with the
latter argument. Although the above email went only to IBS representatives at call centers in
South Carolina and in Raleigh, and thus the alleged policy may have continued at other call

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centers, the court found above that the proposed class should be limited to IBS representatives
who used the GLOCENT software. It appears, therefore, that there are no IBS representatives at
any Time Warner call center who would have used GLOCENT after June of 2011, and thus the
class should be limited accordingly.
As a final limitation, Time Warner argues that the proposed class should not extend
beyond the West Columbia call center. The court disagrees. Plaintiffs submitted evidence of an
informal policy requiring off the clock reconciliation in other call centers, for example in the
form of the email from Mr. Lewis, the Regional Director of Inbound Sales, to IBS
representatives, managers, and supervisors in South Carolina and in Raleigh, North Carolina.
Moreover, Plaintiffs have submitted testimony that GLOCENT is or was used in other call
centers, including in New York. This modest factual showing is sufficient to justify a class of
nationwide scope at this stage in the litigation.
Based on the foregoing, the court finds that Plaintiffs have satisfied the requirements for
conditional certification. Plaintiffs may send court-authorized notice, discussed in more detail
below, to the following class of persons4:
All current or former non-exempt Time Warner inbound sales representatives
employed at any Time Warner call center in the United States who were required
to use the GLOCENT software pursuant to their employment and were instructed
to reconcile their actual sales during uncompensated time and/or breaks, at any
point between August 20, 2009 and June 30, 2011.
Time Warner is hereby ordered to produce to Plaintiffs, within ten (10) days of this Order, in
electronic form, the following information, to the extent it is in Time Warner’s possession or
control: (1) the names of all members of this class; and (2) any contact information for such
members, including, if available, their last known addresses and telephone numbers.
4

At the hearing on this matter, counsel for Plaintiffs moved orally to amend the Complaint to include the proposed
class from Plaintiffs’ motion for conditional certification. In light of the court’s ruling conditionally certifying a
class that is narrower than the Plaintiffs’ proposed class, Plaintiffs’ oral motion is denied.

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Regarding the form of the court-authorized notice, the court elects to modify the
proposed court-authorized notice Plaintiffs submitted along with their motion for conditional
certification. See ECF No. 44-3. In particular, the court-authorized notice should reflect the
narrower class the court has conditionally certified. Also, Time Warner objects that the courtauthorized notice should refer only to the Plaintiffs’ FLSA claims, and the court agrees. Thus,
the court has removed all reference in the notice to Plaintiffs’ state law claims.
Finally, Time Warner argues that the court-authorized notice should state that a putative
class member may only opt-in if that member’s written consent to join is filed within three years
of that member’s cause of action accruing. See 29 U.S.C. §§ 255(a), 256(b). More specifically,
§ 255(a) states that a cause of action arising out of a willful violation may be commenced within
three years after the cause of action accrued.

For opt-in plaintiffs, as opposed to named

plaintiffs, § 256(b) states that a cause of action is considered to be commenced “on the
subsequent date on which . . . written consent is filed in the court in which the action was
commenced,” i.e., not the date the complaint was filed. However, Plaintiffs’ proposed courtauthorized notice states that a putative opt-in plaintiff may join this action if he or she met
certain criteria on or after August 20, 2009, three years prior to the date Plaintiffs filed their
Complaint. Because the statute of limitations continues to run until a putative plaintiff’s written
consent is filed, see, e.g., Houston, 591 F. Supp. 2d at 831, Time Warner objects that the August
20, 2009 date defines a class that is too broad under the FLSA.
In their motion for conditional class certification, Plaintiffs acknowledge the effect on
opt-in plaintiffs of the statute of limitations. Still, Plaintiffs suggest that the court might mitigate
some of the potential for barred claims by ordering equitable tolling. See ECF No. 44. In
particular, they contend that Time Warner failed to properly respond to discovery requests which

13

were due on January 8, 2013, and thus the court may equitably toll the statute of limitations
based on Time Warner’s alleged misconduct. See Chao v. Va. Dep’t of Transp., 291 F.3d 276,
283 (4th Cir. 2002). However, Plaintiffs also suggest that the court postpone any decision on
equitable tolling until after the opt-in period has elapsed.
The court agrees with Plaintiffs in this regard, and accordingly it will reserve judgment
on the question of equitable tolling until after the opt-in period has elapsed. Notably, it may be
that no member of the conditionally certified class for whom equitable tolling would be
necessary will opt-in, thus mooting the issue. For this reason, the court declines to narrow the
applicable date (August 20, 2009) in the court-authorized notice as suggested by Time Warner.
After the opt-in period has expired, Time Warner may raise the statute of limitations as a defense
to the claim of any individual plaintiff in an appropriate pleading.
The court-authorized notice is attached to this Order as Exhibit 1, and the courtauthorized consent form is attached to this Order as Exhibit 2. The putative members of the
collective action will have sixty (60) days from the date notices are mailed to opt-in to this
action. Plaintiffs are directed to notify the court of the date the court-approved notices are
mailed.
Finally, because Time Warner will provide Plaintiffs with the names and contact
information for the members of the class conditionally certified, the court denies Plaintiffs’
request to further require Time Warner to post the court-authorized notice in call centers in
which class members work. Plaintiffs have not explained why notice by mail and/or telephone is
insufficient.

Further, the court finds that these methods of notice are consistent with its

“managerial responsibility to oversee the joinder of additional parties to assure that the task is
accomplished in an efficient and proper way.” Vargas v. General Nutrition Centers, Inc., 2012
WL 5336166, at *12 (W.D. Pa. Oct. 26, 2012); see also Sharer v. Tandberg, Inc., 2006 WL

14

2988104, at *3 (E.D. Va. Oct. 17, 2006) (approving similar method of notice and denying
request to also require defendant to post notice).
IT IS SO ORDERED.

May 3, 2013
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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EXHIBIT 1
COURT-AUTHORIZED NOTIFICATION

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IMPORTANT NOTICE ABOUT YOUR RIGHT TO JOIN A LAWSUIT SEEKING TO
RECOVER UNPAID WAGES AND OVERTIME COMPENSATION FROM TIME
WARNER ENTERTAINMENT-ADVANCE/NEWHOUSE PARTNERSHIP
TO: CURRENT AND FORMER INBOUND SALES (AKA TELESALES)
REPRESENTATIVES OF TIME WARNER ENTERTAINMENT-ADVANCE/NEWHOUSE
PARTNERSHIP (TIME WARNER) WHO, AT ANY POINT BETWEEN AUGUST 20, 2009
AND JUNE 30, 2011: (1) WERE EMPLOYED AT A TIME WARNER CALL CENTER IN
THE UNITED STATES; (2) WERE PAID AN HOURLY RATE PLUS COMMISSIONS; (3)
WERE REQUIRED TO USE THE GLOCENT SOFTWARE PURSUANT TO THEIR
EMPLOYMENT; (4) WERE INSTRUCTED TO RECONCILE THEIR ACTUAL SALES
DURING UNCOMPENSATED TIME AND/OR BREAKS; AND (5) PERFORMED THIS
TASK DURING TIME FOR WHICH THEY WERE NOT PAID.
RE: YOUR RIGHT TO JOIN A LAWSUIT SEEKING TO RECOVER UNPAID
COMPENSATION
DATE: [INSERT DATE NOTICE IS MAILED]
1. WHY YOU ARE RECEIVING THIS NOTICE.
This Notice is to inform you of a collective action lawsuit in which you may be “similarly
situated” to the named Plaintiffs and to advise you that your rights under the federal Fair Labor
Standards Act (FLSA), 29 U.S.C. § 201, et seq. may be affected by this lawsuit, to advise you of
your potential right to participate in this lawsuit, and to instruct you on the procedure for
participating in this lawsuit, if you choose to do so.
2. DESCRIPTION OF THE LAWSUIT.
Keith Curtis and Tyneshia Brooks (Plaintiffs) filed a Complaint against Time Warner in the
United States District Court for the District of South Carolina, Columbia Division, Civil Action
No. 3: l2-cv-02370-JFA.
Plaintiffs’ Complaint alleges, among other causes of action, that Defendant violated the FLSA by
requiring Time Warner telesales representatives to perform essential employment tasks during
uncompensated personal time and breaks. Specifically, Plaintiffs allege that defects in Time
Warner’s GLOCENT software resulted in a failure to properly record the sales and commissions
earned by telesales representatives; that Time Warner telesales representatives were instructed
by Time Warner supervisors and/or managers to reconcile these discrepancies during unpaid
time; and that telesales representatives were not paid for the time they spent reconciling the
discrepancies created by the GLOCENT software. Plaintiffs allege that this conduct resulted in
non-payment of wages and overtime due to telesales representatives.
Time Warner denies the Plaintiffs’ claims and states that it properly paid all wages owed to
Plaintiffs.

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This case is in the early stages of litigation, and the Court has not ruled on Plaintiffs’ claims or
Time Warner’s defenses.
3. YOUR RIGHT TO PARTICIPATE IN THIS SUIT.
You may be able to join this lawsuit, or “opt-in,” as a Party if you are a current or former
telesales representative of Time Warner who, at any point between August 20, 2009 and June 30,
2011 also met the following criteria: (1) you were employed at a Time Warner call center in the
United States; (2) you were paid an hourly rate plus commissions; (3) you were required to use
the GLOCENT software pursuant to your employment; (4) you were instructed to reconcile your
actual sales during uncompensated time and/or breaks; and (5) you performed this task during
time for which you were not paid.
If you have received any communication and compensation from the Defendant purporting to
compensate your for previously uncompensated work, you may still be entitled to standard
and/or overtime compensation as well as liquidated damages in an amount equal to your entire
claim, attorneys’ fees, and costs. Neither your receipt nor your acceptance of any monies affects
your right to participate in this lawsuit.
You are not required to join this lawsuit. If, however, you wish to join as a Party, you may sign
the enclosed “Consent to Become a Party” form and mail it to Plaintiffs’ counsel at:
Richard A. Harpootlian
Graham L. Newman
M. David Scott
Christopher P. Kenney
RICHARD A. HARPOOTLIAN, P.A.
1410 Laurel Street
Post Office Box 1040
Columbia, South Carolina 29202
[phone] (phone)
[phone] (facsimile)
[e-mail]
[e-mail]
[e-mail]
[e-mail]
If you receive this notice but do not have an accompanying “Consent to Become a Party” form,
you can contact Plaintiffs’ counsel to obtain a form.
You must either return the signed form to Plaintiffs’ counsel or retain other counsel in time for
counsel to file your “Consent to Become a Party” form in this action with the United States
District Court for the District of South Carolina on or before [60 Days from date this notice is
mailed]. If you fail to file a “Consent to Become a Party” form with the Court on or before this
deadline, you will not be able to participate in this lawsuit.

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If you file a “Consent to Become a Party” form, the Court may decide whether you are a proper
Party to this lawsuit.
4. EFFECT OF JOINING THIS LAWSUIT.
If you choose to join in this lawsuit, you will be bound by the Judgment, whether it is favorable
or unfavorable. You will also give up the right to file a suit in a separate action for the claims
made in this case.
The attorneys for the Plaintiffs seek payment of attorneys’ fees on a contingency fee basis out of
any recovery. If there is no recovery, there will be no attorneys’ fees. If there is a recovery, the
attorneys for the Plaintiffs will receive a part of any settlement obtained or money judgment
entered in favor of the Plaintiffs. If you join this suit and agree to be represented by Plaintiffs’
counsel, then you agree to a contingency fee agreement, a copy of which is available from
Plaintiffs’ counsel, and you designate Plaintiffs’ counsel as your attorney to make decisions on
your behalf concerning this litigation, the method and manner of conducting the litigation, and
all other matters pertaining to this lawsuit.
5. NO LEGAL EFFECT IN NOT JOINING THIS LAWSUIT.
If you choose not to join this suit, your rights will not be affected by any judgment or settlement
rendered in this case, whether favorable or unfavorable. If you choose not to join in the lawsuit,
you are free to file your own lawsuit and you may be represented by your attorney of choice.
6. NO RETALIATION PERMITTED.
Federal law prohibits TWEAN from discriminating or retaliating against you because you have
exercised your rights under the FLSA by filing or joining a lawsuit seeking to enforce your
rights. Examples of prohibited retaliation include: discharge from employment, demotion,
suspension, or other adverse actions.
7. YOUR LEGAL REPRESENTATION IF YOU JOIN.
If you choose to join this suit, your interests will be represented by Plaintiffs’ attorneys, who are:
Richard A. Harpootlian
Graham L. Newman
M. David Scott
Christopher P. Kenney
RICHARD A. HARPOOTLlAN, P.A.
1410 Laurel Street
Post Office Box 1040
Columbia, South Carolina 29202
[phone] (phone)
[phone] (facsimile)
[e-mail]
[e-mail]

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[e-mail]
[e-mail]
Todd Ellis
LAW OFFICE OF TODD ELLIS, P.A.
7911 Broad River Road, Suite 100
Irmo, South Carolina 29063
[phone] (phone)
[phone] (facsimile)
[e-mail]
James M. Griffin
Margaret Fox
LEWIS BABCOCK & GRIFFIN, LLP
Post Office Box 11208
Columbia, SC 29202
[phone]
[phone] facsimile
[e-mail]
[e-mail]
8. FURTHER INFORMATION.
Further information about this Notice, the deadline for filing a “Consent to Become a Party”
form, or questions concerning this lawsuit may be obtained by writing, emailing, or telephoning
Plaintiffs’ counsel at the address, email, or telephone number stated above.

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EXHIBIT 2
COURT-AUTHORIZED CONSENT
FORM

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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Keith Curtis and Tyneshia Brooks, individually
and on behalf of all others similarly situated,

C/A No. 3:12-cv-2370-JFA

Plaintiffs,
vs.
CONSENT TO BECOME A PARTY
TO A COLLECTIVE ACTION
PURSUANT TO 29 U.S.C. § 216

Time Warner EntertainmentAdvance/Newhouse Partnership,
Defendant.

The undersigned, a current or former employee of Defendant Time Warner
Entertainment-Advance/Newhouse Partnership, hereby consents to become a Party to the
Complaint filed in this action, effective on this __ day of _______________, 2013.

____________________________________
Signature
____________________________________
Print Name
____________________________________
Address
____________________________________
City, State, Zip Code

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