Pointer v. Nakato SC Inc et al

Filing 18

ORDER FOR CONDITIONAL CLASS CERTIFICATION (FLSA)AND TO AUTHORIZE NOTICE TOPUTATIVE CLASS MEMBERS. Signed by the Honorable R Bryan Harwell on 08/21/2018. (lsut, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
EVANGELINE POINTER, on behalf of
herself and all others similarly situated,
Plaintiff,
v.
NAKATO SC, INC. d/b/a NAKATO
JAPANESE STEAKHOUSE and JOHN
DOES 1-10, et al.,
Defendants.

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C/A: 4:18-cv-01629-RBH

ORDER FOR CONDITIONAL CLASS
CERTIFICATION (FLSA)
AND
TO AUTHORIZE NOTICE TO
PUTATIVE CLASS MEMBERS

This action came before this court on a Consent Motion (ECF 17) filed by Plaintiff,
Evangeline Pointer (“Pointer”), on behalf of herself and all others similarly situated, and all of
the filed Opt-Ins to date (all jointly “Plaintiffs”), by and through their counsel, with the consent
of Defendant, Nakato SC, Inc. d/b/a Japanese Steakhouse (“Nakato” or “Defendant”), (Plaintiffs
and Defendant jointly “Parties”), moving before this Honorable Court for an Order of
Conditional Collective Action Certification and to Authorize Notice to Putative Collective
Action Members (“Putative Members”), pursuant to section 16(b) of the Fair Labor Standards
Act, 29 U.S.C. § 216.
The Parties requested this Honorable Court to order the following:
1.

Conditionally certify this matter as a collective action for actual damages,

liquidated damages, and attorneys’ fees and costs under 29 U.S.C. §216(b).
2.

Define the class as follows: “All current and former employees of Nakato who

were paid a direct, or hourly, rate less than the statutory minimum wage of seven and 25/100
dollars ($7.25) per hour and were required to tip-out, or remit tips, into the mandatory tip pool.”

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Order for Conditional FLSA Class Certification
C/A: 4:18-cv-01629-RBH

The Putative Class should include all employees who made less than seven and 25/100 dollars
($7.25) and contributed money to the Tip Pool and were employed within three (3) years of the
Notice being sent.
3.

The Notice and Consent (“Notice”) (ECF 17-1) is appropriate to provide notice to

the Putative Members, via U.S. Mail, and for allowing Putative Members to opt-in, or join, the
class. The mailing envelope shall have a return address as follows:
Nakato Class Action Lawsuit
Important Notice of Your Legal Rights
PLEASE OPEN & READ
P.O. Box 26170
Santa Ana, CA 92799
Enclosed, with the Notice, there will be a self-addressed, postage-paid envelope using the name
and mailing address of Plaintiffs’ counsel for both the address and return address.
4.

The Email Notice (ECF 17-2) is appropriate for sending notice to Putative

Members via email. The subject line of the email shall read: Nakato Class Action Lawsuit –
Please Read.
5.

The Text Message Notice Via Cell Phone (ECF 17-3) is appropriate for sending

notice to Putative Members via text message.
6.

Putative Members will have thirty (30) days from the date of the Notice to return

their Consent form. Timeliness will be determined based upon the date that the Consent is postmarked or that an email is sent with the completed “Consent to Join.”
7.

The Parties shall use the services of Third Party Administrator, Simpluris, Inc.

(“TPA”), to handle distribution of the various notices. Plaintiffs shall pay all fees and costs of

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Order for Conditional FLSA Class Certification
C/A: 4:18-cv-01629-RBH
the TPA.1
8.

Within five (5) calendar days2 of the entry of this Order, Defendant shall provide,

in electronic format, if available, to the TPA, for all Putative Members3, the following
information:
a.

Full names and identify if the individual is a current employee;

b.

Dates of employment;

c.

All known mailing addresses on file, including, but not limited to,

addresses on payroll records, W-2, in employee file, and on application or resume;
d.

All known email addresses, including, but not limited to, those found in

the employee file, on an application or resume, or any other method by which Defendants
stored email addresses; and,
e.

All known telephone numbers, including, but not limited to, employee file,

on application or resume, W-4; or any other method by which Defendants stored phone
numbers.
9.

The TPA shall not provide Plaintiffs’ counsel with the names, mailing addresses,

email addresses, or cell phone numbers of the Putative Members; however, the TPA shall, within
seven (7) days of receiving this information from Defendant, provide Plaintiffs’ counsel with the
following information: (a) the number of Putative Members; (b) the number of mailing
1

Simpluris has been used by Plaintiffs’ counsel as the TPA in approximately seventeen (17)
FLSA Collective Actions in the past four (4) years and is quite familiar with the tasks outlined in
this consent motion.
2
To the extent any deadline in this Order falls on a Saturday, Sunday, or legal holiday, the
deadline will fall on the next day that is not a Saturday, Sunday, or legal holiday.
3
To avoid the TPA sending notices to Putative Members who by joining the lawsuit, after they
receive the notice from the TPA, would be outside of the potential three (3) year statute of
limitations, Defendants shall provide the TPA with Putative Members who have been employed
at any time within the prior three (3) years of mailing of the notice.
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Order for Conditional FLSA Class Certification
C/A: 4:18-cv-01629-RBH

addresses; (c) the number of email addresses; and (d) the number of cell phone numbers.
10.

As soon as business will allow, but before the TPA’s deadline for distributing

Notice as set forth in Paragraph 11, the TPA shall email counsel for Plaintiffs and counsel for
Defendant an example of both envelopes – the one containing the Notice and the return
envelope, along with copies of ECF 17-1; ECF 17-2; ECF 17-3.4 Within one (1) business day of
receipt of these envelopes and ECF 17-1; ECF 17-2; ECF 17-3, counsel for the Parties shall
advise the TPA, as well as their opposing counsel, if the envelopes and Notices are correct or
what revisions are needed.
11.

The TPA shall, within three (3) calendar days of receipt of the information from

Defendant as set forth in Paragraph 8:
(a)

Perform a skip trace to determine all Putative Members’ up-to-date

mailing address;
(b)

Insert appropriate dates in the Notices where appropriate;

(c)

Mail, via first class U.S. mail, a copy of ECF 17-1 to the best possible

address, as determined by the TPA; and
(d)

Email, to all Putative Members with an email address, a copy of ECF 17-2

with ECF 17-1 attached.
(e)

Send the Text Message Via Cell Phone (ECF 17-3) to the cell phone

number(s) for that Putative Member.
12.

If the TPA receives any completed Consents, the TPA shall, within twenty-four

(24) hours of receiving the Consent, email a copy to counsel for Plaintiffs to be filed with the

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The TPA will need to insert the appropriate dates where the Notices have yellow highlights.
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Order for Conditional FLSA Class Certification
C/A: 4:18-cv-01629-RBH

Court. The TPA shall also, within five (5) calendar days, mail the original consent to counsel for
Plaintiffs.

IT IS SO ORDERED.
August 21, 2018
Florence, South Carolina

Bruce E. Miller, Esq. (Fed Bar No. 3393)
BRUCE E. MILLER, P.A.
147 Wappoo Creek Drive, Suite 603
Charleston, SC 29412
T: 843.579.7373
F: 843.614.6417
[e-mail]
ATTORNEY FOR EVANGELINE
POINTER, on behalf of herself and all
others similarly situated

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

s/ Benjamin A. Baroody
Benjamin A. Baroody, Esq. (Fed. Bar No.
9442)
Holly M. Lusk, Esq. (Fed Bar No. 12587)
BELLAMY LAW FIRM
1000 29th Avenue North
Myrtle Beach, SC 29577
T: 843.448.2400
F: 843.448.3022
[e-mail]
[e-mail]
ATTORNEYS FOR NAKATO SC, INC.
d/b/a NAKATO JAPANESE
STEAKHOUSE

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