Pierce et al v. Wyndham Vacation Resorts, Inc. et al

Filing 115

MEMORANDUM AND ORDER: Wyndhams Motion to Adopt Defendants Version of theNotice to the Class and to Include Opt-In Survey with the Court-Supervised Notice to Opt-In Plaintiffs 90 is GRANTED IN PART and DENIED IN PART, and the parti es competing proposals for the notice of suit and opt-in form [Doc. 85-1; Doc. 89-1] are ACCEPTED IN PART and REJECTED IN PART to the extent stated above.Plaintiffs counsel SHALL MODIFY its proposed notice and opt-in form in a mannerconsistent with t he rulings herein and file a copy of the same in the record, simply for the Court and opposing counsels edification, within seven (7) days of the entry of this Memorandum and Order. Plaintiffs counsel SHALL MAIL the notice and opt-in forms to potential plaintiffs as soon as practicable but no later than thirty (30) days following entry of this Memorandum and Order. Signed by Magistrate Judge C Clifford Shirley, Jr on 2/11/15. (ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JESSE PIERCE and MICHAEL PIERCE,
on behalf of themselves and all others
similarly situated,
Plaintiff,
v.
WYNDHAM VACATION RESORTS, INC., and
WYNDHAM VACATION OWNERSHIP, INC.,
Defendants.

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No. 3:13-CV-641-PLR-CCS

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court is Motion to Adopt Defendants’ Version of the Notice to the Class
and to Include Opt-In Survey with the Court-Supervised Notice to Opt-In Plaintiffs [Doc. 90],
filed by Defendant Wyndham Vacation Resorts, Inc., and Wyndham Vacation Ownership, Inc.,
(collectively “Wyndham”). This motion has been fully and thoroughly briefed, see Doc. 110
(listing numerous filings), and the parties appeared before the undersigned on January 21, 2015,
to present oral arguments on this motion. The Court finds that the motion is now ripe for
adjudication, and for the reasons stated herein, it will be GRANTED IN PART and DENIED
IN PART. Similarly, the parties’ competing proposals for the notice of suit and opt-in form are
ACCEPTED IN PART and REJECTED IN PART.

I.

BACKGROUND
On April 24, 2014, the undersigned entered a Report and Recommendation

recommending that the Plaintiffs’ Motion to Certify Collective Action be granted. The District
Judge adopted this recommendation on August 21, 2014. The District Judge directed that the
Plaintiffs file a proposed notice and opt-in form within five days of entry of the Court’s Order,
and Wyndham was permitted five days to respond to the Plaintiffs’ proposal.
On August 21, 2014, the Plaintiffs filed their proposed notice and opt-in form [Doc. 85],
and on August 26, 2014, Wyndham filed a competing proposed notice and opt-in form [Doc. 89].
On the same day, Wyndham filed the instant motion [Doc. 90]. The parties briefed this motion
and ancillary issues related to the motion for approximately three months. Upon the conclusion
of the parties’ briefing, the Court set the issue for hearing.
The primary point of contention between the parties is whether Wyndham should be
permitted to include questionnaire in the mailing to potential opt-in plaintiffs, along with the
notice and opt-in form, [see Doc. 89-1]. Wyndham argues that this survey will expedite the
litigation and allow the parties to gather information about the potential plaintiffs. The Plaintiffs
oppose the use of the questionnaire and argue that it is premature discovery that is likely to chill
participation in this suit. The parties also take issue with one another’s proposed notices and optin forms, including: the formatting of the documents; the language and syntax of the documents;
and the dates and deadlines contained in the documents.

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II.

ANALYSIS
The Court will address the issues raised by the parties in turn.

A.

Wyndham’s Proposed Inclusion of a Questionnaire
Generally, an initial mailing regarding an FLSA collective action includes: (1) a notice,

advising the potential litigant of his or her ability to join the suit and (2) an opt-in form, which
the potential litigant can use to join the suit. Wyndham has proposed that in this case a third
document be included in the mailing: a six-page questionnaire, which from its introductory
language appears to be mandatory.
Wyndham acknowledges that such questionnaires are not common-place, but Wyndham
maintains that they have been used by courts in other cases. Wyndham argues that the use of the
questionnaire may streamline litigation and enable it to craft its decertification motion.
The Plaintiffs have responded by asserting that the relief requested by Wyndham is
extraordinary and amounts to permitting discovery prior to a potential litigant becoming a party
to this suit. The Plaintiffs maintain that the requirement that the opt-in plaintiffs complete the
questionnaire, without consultation of counsel, prior to joining the suit would discourage
participation and be inconsistent with 29 U.S.C. § 216 and the Federal Rules of Civil Procedure.
The Court has thoroughly considered the parties’ positions and the applicable case law on
this issue. At the hearing, Wyndham’s counsel relied heavily upon Rosenberg v. University of
Cincinnati, 118 F.R.D. 591 (S.D. Ohio 1987), which he argued supported Wyndham’s position
that obtaining discovery before a litigant opts in is acceptable. Initially, the Court finds that
Wyndham’s reliance on an almost thirty-year-old case indicates that the use of the questionnaires
is not as common place as Wyndham would have the Court believe. Second, the Court finds that
Rosenberg devoted almost no discussion to the issue before the Court. The court in Rosenberg

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addressed the defendant’s motion to decertify a class of female faculty members. Id. at 591-96.
The only mention of a questionnaire in Rosenberg is in the court’s description of the case’s
procedural posture and its rulings, id. at 491-92, and where the court explained the procedure for
decertifying the class, stating:
In the present case, on Defendants’ motion (Doc. # 60), notice of
the class action was sent to women employed in faculty positions
at the University of Cincinnati at any time between July 15, 1974
and December 15, 1977 by the Plaintiff. See Doc. # 66. Answered
questionnaires which accompanied that notice were to be returned
to the Clerk of Courts. See Entry of April 23, 1981 (Doc. # 65).
Accordingly, because members of the former class who returned
the questionnaires received notice of the initial class certification
and may have relied upon being included in that class, the Court
hereby orders that the Clerk of Courts send the notice of the
decertification of this class action attached hereto to all individuals
who returned the questionnaire by ordinary mail.
Id. at 596-97. This Court cannot find that this factual statement about a questionnaire having
been sent, without any discussion of the particular circumstances of the case and the basis for
sending the questionnaire, is persuasive authority in the instant case.
Instead, the Court finds the well-reasoned opinion in McCarthy v. Paine Webber Group,
Inc., 164 F.R.D. 309 (D. Conn. 1995), which directly addresses whether a questionnaire could be
sent to potential class members, to be persuasive on this issue. The court in McCarthy reasoned
that requiring potential class members to complete a form during the initial notice stage was
contrary to Rule 23 of the Federal Rules of Civil Procedure.1 Id. at 313. This Court finds that
the questionnaire proposed here would constitute an equally unacceptable condition precedent to
joining the collective action, which is not consistent with 29 U.S.C. § 216.

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Rosenberg was also decided under Rule 23, rather than the FLSA, but for the purposes of this issue and given the
lack of FLSA authority, the Court finds that the distinction between the Rule 23 mechanism and the FLSA
mechanism is of little consequence.

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The Court finds that the questions proposed by Wyndham are inappropriate.

For

example, Wyndham asks the opt-in plaintiffs to state every date on which the person failed to
clock-in on time and the amount of time that was worked but underreported. Similarly, the
questionnaire calls upon the opt-in plaintiffs to state every time that they were underpaid, who
underpaid them, and the amount by which they were underpaid. Ordering an opt-in plaintiff to
answer such questions without counsel and prior to joining this suit would be contrary to Rule 26
of the Federal Rules of Civil Procedure and unfair to the litigant. Moreover, questions like
whether the person is currently employed by Wyndham and their prior positions with Wyndham
can easily be answered by Wyndham itself once the opt-in form is received, without need for the
opt-in plaintiff to provide such information through a questionnaire. Finally, the Court finds that
the twenty questions, with multiple sub-parts, proposed by Wyndham are unduly burdensome
given that discovery has not yet commenced in this case.
The Court also finds that the questionnaire takes an unacceptably harsh tone in
threatening that incorrect or incomplete answers may constitute perjury or have a preclusive
effect. The questionnaire states: “Please answer the following questions fully and completely to
the best of your knowledge. If a full and complete answer will not fit in the space provided, you
must be sure to add additional pages, as necessary, to ensure a full and complete answer.”2 [Doc.
89-1 at 8]. The questionnaire concludes by stating, “Pursuant to 28 U.S.C. § 1746, I hereby
declare under penalty of perjury that the foregoing is true and correct.” [Id. at 13]. The Court
finds that these warnings and the threat of penalty of perjury are unacceptable in this case, where
Wyndham proposes that these questions be answered without the benefit of advice of counsel
and prior to complying with Rule 26 of the Federal Rules of Civil Procedure. At the hearing,

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The questionnaire then states that the applicable period is October 21, 2010 to October 21, 2013, which is incorrect
and in direct contradiction to the District Judge’s Order. This point is discussed more fully below.

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counsel for Wyndham could not cite the Court to any case law supporting the service of such a
questionnaire with threat of penalty of perjury.
Based upon the foregoing, including the record in this case and the applicable case law,
the Court finds that Wyndham’s request to serve a questionnaire with the notice of suit and optin form is not well-taken. Accordingly, it will be DENIED.
B.

Objections to the Proposed Notices and Opt-In Forms
The Court finds that the contents of the Plaintiffs’ proposed notice and opt-in form are

less problematic than the notice and opt-in form proposed by Wyndham.

Therefore, the

Plaintiffs’ proposed notice and opt-in form [Doc. 85-1] shall be employed as the template for
incorporating the following rulings and changes.
1.

Liability for Attorneys’ Fees and Costs
In its proposed notice, Wyndham includes various phrases and statements conveying to

opt-in plaintiffs that they may be responsible for fees and costs in this suit. Plaintiffs dispute
inclusion of this language and propose a contrary instruction on potential liability for fees and
costs. The Court finds that neither Wyndham’s proposed language,3 nor the Plaintiffs’ proposed
language,4 is appropriate. See Frye v. Baptist Mem’l Hosp., Inc., 507 F. App’x 506, 508 (6th
Cir. 2012)(“Because section 216(b) addresses only an award of costs to a prevailing plaintiff and
neither section 216(b), nor any other provision of the FLSA precludes an award of costs to a
prevailing defendant, the district court properly found that a prevailing defendant can recover
costs under the FLSA.”). Therefore, both parties’ proposed language is STRICKEN from use in
the notices.

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“It is the intention of Wyndham to seek the costs of defending this lawsuit from Plaintiffs.” [Doc. 89-1 at 3].
“If you choose to join this suit, . . . you cannot be required to pay [Wyndham’s] costs or attorneys’ fees whether
Plaintiffs win or lose this suit. . . . The attorneys for Plaintiffs are being paid on a contingency fee basis, which
means that if there is no recovery, there will be no attorneys’ fees.”

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Instead, the notice will state: “The attorneys proposed to act on your behalf have accepted
this case on a contingency basis. Therefore, if you use these lawyers, you will not be required to
pay any legal fees to these lawyers, unless there is a monetary recovery in this case. If there is a
recovery, your lawyers will receive a portion of the proceeds in the amount deemed reasonable
by the Court. If there is no recovery, the lawyers acting on your behalf will receive nothing.
However, if Wyndham prevails, it is possible that Wyndham’s lawyers will recover fees and
costs, for which you may be responsible for a proportional share.” The Court finds that this
language is consistent with the case law of this District, see Doc. 41 in Bacon v. Subway
Sandwiches & Salads, LLC, No. 3:14-CV-192-PLR-HBG; see also Doc. 23 in Hardesty v.
Litton’s, No. 3:12-CV-60-TAV-HBG, and the case law of this Circuit. The Court ORDERS that
this language be used in the notice in this case.
2.

Participation in Discovery
Wyndham proposes inclusion of language stating that an opt-in plaintiff may be required

to respond to written discovery, participate in a deposition, and/or testify before the Court [Doc.
89-1 at 4]. Wyndham also notes the opt-in plaintiff’s duty of truthfulness and candor [Id.].
While Plaintiffs initially objected to the inclusion of this language, the Plaintiffs’ counsel
withdrew their opposition at the hearing. Moreover, the Court has reviewed the language used
and finds that it is reasonable. Accordingly, the Court ORDERS that the language regarding
discovery participation proposed by Wyndham [Doc. 89-1 at 4] be included in the notice in this
case.
3.

Opt-In Period
In their proposed notice, Plaintiffs use an opt-in period of ninety days. [Doc. 85-1 at 4].

In their proposed notice, Wyndham uses an opt-in period of just thirty days [Doc. 89-1 at 3]. At

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the hearing, Wyndham’s counsel withdrew its opposition to the ninety-day period proposed by
the Plaintiffs. The Court finds that a ninety-day opt-in period in this case is appropriate, and the
Court ORDERS that the opt-in period be stated as ninety (90) days in the notice in this case.
4.

Potential Recovery Period
Despite the District Judge endorsing a potential recovery period incorporating persons

who worked from Wyndham between October 21, 2010 and October 31, 2013, [Doc. 84 at 3],5
Wyndham changed this period to August 24, 2011 and October 23, 2013 in its purposed notice,
[Doc. 89-1 at 1]. This change and apparent contravention of the District Judge’s ruling is
somewhat alarming and certainly improper. Wyndham made this change without moving the
District Judge to reconsider her ruling or otherwise seeking relief from the previous
Memorandum and Order.
At the hearing on January 21, 2015, Wyndham’s counsel conceded that Wyndham did
not have authority to make such a modification, and Wyndham conceded that, pursuant to the
District Judge’s Memorandum and Order, the potential recovery period was October 21, 2010
and October 31, 2013. Accordingly, the Court ORDERS that these dates be used in describing
the collective action in the notice in this case.
5.

Anti-Retaliation Language
Both parties suggest that the Court include anti-retaliation language in the notice stating:

“Federal law prohibits an employer from firing you or taking any other adverse employment
action against you because you have exercised your legal right to participate in this lawsuit.”
Plaintiffs also propose including an additional statement: “This means [Wyndham, its] owners
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It appears that there may be a typographical error in the District Judge’s Memorandum and Order because the
undersigned’s Report and Recommendation, which was adopted in whole, identified the action period as October
21, 2010, to October 21, 2013, [Doc. 70 at 8]. However, the District Judge’s Memorandum and Order states the
action period as October 21, 2010, through October 31, 2013. Because the District Judge’s Memorandum and Order
is the operative document and because inclusive notice is preferable to less inclusive notice, the Court has used the
period supplied by the District Judge herein.

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officers, directors and/or any managers are forbidden from treating you differently because you
participate in this lawsuit.” [Doc. 85-1 at 5]. Wyndham proposes including the statement:
“Retaliation by either the named or opt-in plaintiffs, against those who choose to opt-out, is also
prohibited.” [Doc. 89-1 at 5].
The Court finds that the first sentence, which both parties agree upon, likely covers all
the opt-in plaintiffs need to know about retaliation when deciding whether to join this suit or not,
and it shall be included in the notice. However, neither party has directed the Court to a
persuasive legal basis for including its additional, proposed language, and therefore, the
additional, proposed language will not be included in the notice. Accordingly, it is ORDERED
that the notice in this case include only the first sentence quoted above: “Federal law prohibits an
employer from firing you or taking any other adverse employment action against you because
you have exercised your legal right to participate in this lawsuit.”
6.

Contact Information
The Plaintiffs did not include the contact information for Wyndham’s counsel in its

proposed notice, and while it is not apparent to the Court how the inclusion of this information
will aid Wyndham or the opt-in plaintiffs,6 the Plaintiffs were not able to articulate a sound basis
for objecting to its inclusion. The Court finds that the language proposed by Wyndham on this
issue is appropriate and suitable for use in this case. [Doc. 89-1 at 5-6]. However, the Court
finds that Wyndham’s proposal that its counsel’s contact information be listed before the contact
information for Plaintiffs’ counsel is inappropriate.

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The Court takes no position at this time regarding the nature of any contact between Wyndham’s counsel and a
proposed opt-in plaintiff – including, but not limited to, whether or not such contact would result in a future conflict
as to Wyndham’s counsel, whether any legal advice that might be given would create an attorney-client relationship,
or whether the contact would result in a conflict of interest.

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Accordingly, it is ORDERED that the contact information for Wyndham’s counsel shall
be included in the notice in this case. The language itself should be consistent with the language
proposed by Wyndham. However, the contact information for Wyndham’s counsel shall appear
after the contact information for Plaintiffs’ counse.
7.

Other Issues
The Court finds that both parties propose to use a heading akin to a court-filed document.

Consistent with the applicable case law,7 the Court orders that the heading of the notice shall be
abbreviated and modified to the following format:

NOTICE OF LAWSUIT WITH OPPORTUNITY TO JOIN
AUTHORIZED BY THE HONORABLE PAMELA L. REEVES, UNITED STATES DISTRICT JUDGE,
FOR THE EASTERN DISTRICT OF TENNESSEE
RE:

FAIR LABOR STANDARDS ACT LAWSUIT,
Pierce v. Wyndham Vacation Resorts, Inc., No. 3:13-CV-641-PLR-CCS (E.D. Tenn.)

TO:

All present and former In-House, Front Line and Discovery Sales Representatives of
Wyndham Vacation Resorts, Inc. and Wyndham Vacation Ownership, Inc.
(hereinafter referred to as “Wyndham”), who worked for Wyndham at any time
between October 21, 2010 and October 31, 2013, at one or more of Wyndham’s four
Tennessee resorts.

DEFENDANTS: Wyndham Vacation Resorts, Inc. and Wyndham Vacation Ownership, Inc.

I.

INTRODUCTION
....

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See Woods v. New York Life Ins. Co., 686 F.2d 578, 580 (7th Cir. 1982) (“[I]f the question meant to be asked is
whether the notice should go out on court letterhead over the signature of a court official, we think the answer is
no.”)

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The proposed opt-in form which currently lacks a clear heading shall be modified to
include a similar, though abbreviated, heading. Specifically, the opt-in form must contain the
case name and number for ease of reference.
Additionally, the undersigned suggests that for the convenience of the Court and the
parties, the Plaintiff bundle the opt-in forms in groups prior to filing them. Plaintiffs’ counsel
may use their discretion in determining how often to file a group of opt-in forms, but the Court’s
expectation is that Plaintiffs’ counsel will not file each completed opt-in form individually.
Moreover, any notice of filing of the completed opt-in forms shall state in the notice the names
of the persons whose consent forms are attached as exhibits to the notice.

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III.

CONCLUSION
Based upon the foregoing, Wyndham’s Motion to Adopt Defendants’ Version of the

Notice to the Class and to Include Opt-In Survey with the Court-Supervised Notice to Opt-In
Plaintiffs [Doc. 90] is GRANTED IN PART and DENIED IN PART, and the parties’
competing proposals for the notice of suit and opt-in form [Doc. 85-1; Doc. 89-1] are
ACCEPTED IN PART and REJECTED IN PART to the extent stated above.
Plaintiffs’ counsel SHALL MODIFY its proposed notice and opt-in form in a manner
consistent with the rulings herein and file a copy of the same in the record, simply for the Court
and opposing counsel’s edification, within seven (7) days of the entry of this Memorandum and
Order. Plaintiffs’ counsel SHALL MAIL the notice and opt-in forms to potential plaintiffs as
soon as practicable but no later than thirty (30) days following entry of this Memorandum and
Order.
IT IS SO ORDERED.
ENTER:
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

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