Garcia et al v. TWC Administration LLC
ORDER GRANTING IN PART AND DENYING IN PART 9 Motion to Certify Class. Signed by Judge David A. Ezra. (aej)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ABBIE GARCIA, BRANDON
PONTIOUS, and ORIN HUGHES,
individually and on behalf of all others
TWC ADMINISTRATION, LLC,
d/b/a TIME WARNER CABLE,
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’
MOTION FOR CONDITIONAL CERTIFICATION OF A COLLECTIVE
ACTION AND AUTHORIZATION FOR NOTICE
Before the Court is a Motion for Conditional Certification of a
Collective Action and Authorization for Notice filed by Plaintiffs Abbie Garcia,
Brandon Pontius, and Orin Hughes, individually and on behalf of all others
similarly situated (collectively, “Plaintiffs”). (Dkt. # 9.) On April 15, 2015, the
Court heard oral argument on the Motion. Dorian Vandenberg-Rodes, Esq., and
Ricardo Jose Prieto, Esq., appeared at the hearing on behalf of Plaintiffs;
Nathan D. Chapman, Esq., and Christine Elaine Reinhard, Esq., appeared at the
hearing on behalf of Defendant Time Warner Cable (“TWC”). After reviewing the
Motion and the supporting and opposing memoranda, and considering the parties’
arguments at the hearing, the Court GRANTS IN PART AND DENIES IN
PART Plaintiffs’ Motion for Conditional Certification of a Collective Action and
Authorization for Notice. (Dkt. # 4.)
The instant litigation arises out of Plaintiffs’ employment by TWC as
inbound sales agents in San Antonio, Texas. (“Garcia Decl.,” Dkt. # 9, Ex. A ¶ 2;
“Pontious Decl.,” Dkt. # 9, Ex. B ¶ 2; “Hughes Decl.,” Dkt. # 9, Ex. E ¶ 2.)
Inbound sales agents are primarily responsible for selling and/or “up-selling” cable
service to customers who call TWC’s call center. (Garcia Decl. ¶ 3; Pontious Decl.
¶ 3; Hughes Decl. ¶ 3.) Each of the named Plaintiffs worked eight hours per day
with a one-hour unpaid lunch period, and was paid $10 per hour plus commissions
based on the number of sales made. Specifically, they received a percentage of the
sales they made, which varied based on factors such as how closely they adhered to
their eight-hour schedules, “up-sales” generated, and new customer sales
generated. (Garcia Decl. ¶¶ 4, 6; Pontious Decl. ¶¶ 4, 6; Hughes Decl. ¶¶ 4, 6.)
Plaintiffs allege that in addition to taking customer calls, they were
required to perform “non-sales work” such as documenting orders and customer
accounts, following up with customers and addressing issues related to orders,
ensuring that accounts were properly credited, and staying abreast of current TWC
products, services, promotions, and policies. (Garcia Decl. ¶ 5; Pontious Decl. ¶ 5;
Hughes Decl. ¶ 5.) They further allege that because they were effectively required
to spend the entirety of their shifts on the phone, they spent a significant amount of
time each day working “off the clock” and without pay so that they could complete
the required “non-sales work.” (Garcia Decl. ¶¶ 6–7; Pontious Decl. ¶¶ 6–7;
Hughes Decl. ¶¶ 6–7.) Garcia states that she worked an average of six unpaid
hours per week (Garcia Decl. ¶ 8), while Pontious and Hughes state that they
worked an average of seven unpaid hours per week (Pontious Decl. ¶ 8; Hughes
Decl. ¶ 8). Plaintiffs allege that their supervisors were aware that they were
working off the clock, but that they were repeatedly instructed to stay on the phone
the entire time they were on the clock and that their “non-sales work” had to be
performed off the clock. (Garcia Decl. ¶ 9; Pontious Decl. ¶ 9; Hughes Decl. ¶ 9.)
On November 6, 2014, Plaintiffs initiated this lawsuit by filing a
collective action complaint. (Dkt. # 1.) The complaint alleges (1) that TWC’s
practice of failing to pay Plaintiffs the time-and-a-half rate for hours in excess of
forty per work week violates the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 207, and (2) that TWC’s practice of failing to pay Plaintiffs at the required
minimum wage rate violates the FLSA, 29 U.S.C. § 206. (Id. ¶¶ 74–79.) On
December 10, 2014, Plaintiffs filed the instant Motion for Conditional Certification
of a Collective Action and Authorization for Notice. (Dkt. # 9.) On January 9,
2015, TWC filed a Response in Opposition. (Dkt. # 16.) On January 15, 2015,
Plaintiffs filed a Reply. (Dkt. # 19.)
An employee can bring an action for violating the minimum wage and
overtime provisions of the FLSA, either individually or as a collective action on
behalf of himself and “other employees similarly situated.” 29 U.S.C. § 216(b).
Because the FLSA requires employee-class members to affirmatively opt in, the
plaintiff can seek “conditional class certification” from the court, which permits
the plaintiff to “send [a] court-approved written notice to employees, who in turn
become parties to a collective action only by filing written consent with the court.”
Genesis Healthcare Corp. v. Symczk, 133 S. Ct. 1523, 1527 (2013) (citations
Although the Fifth Circuit has declined to adopt a specific test to
determine when a court should conditionally certify a class or grant a notice in a
§ 216(b) action, the majority of courts within the Fifth Circuit have adopted the
approach set forth in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987).
Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995) (noting
acceptable approaches include either the Lusardi approach or the “spurious class
action” approach set forth in Shushan v. Univ. of Colo., 132 F.R.D. 263 (D. Colo.
1990)), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90
(2003); Vanzzini v. Action Meat Distribs., Inc., 995 F. Supp. 2d 703, 719 (S.D.
Tex. 2014) (following Lusardi); Mateos v. Select Energy Servs., LLC, 997 F.
Supp. 2d 640, 643 (W.D. Tex. 2013) (same); Tice v. AOC Senior Home Health
Corp., 826 F. Supp. 2d 990, 994 (E.D. Tex. 2011) (same); Marshall v. Eyemasters
of Tex., Ltd., 272 F.R.D. 447, 449 (N.D. Tex. 2011) (same).
The Lusardi approach is a two-stage inquiry involving a “notice
stage” and a merits or decertification stage. Mooney, 54 F.3d at 1213–14. At the
notice stage, a “court determines whether the putative class members’ claims are
sufficiently similar to merit sending notice of the action to possible members of the
class.” Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516, 519 (5th Cir.
2010). If the court determines that the proposed class members are similarly
situated and conditional certification is warranted, the plaintiff has the opportunity
to send notice to potential class members, who are then permitted to opt in to the
suit. Id. Once plaintiffs have opted in and discovery is largely complete, the
defendant can file a decertification motion, asking the court to re-assesses whether
the claimants are similarly situated. Mooney, 54 F.3d at 1214. At that point, the
court can fully evaluate the merits of class certification and can choose to decertify
the class. Id.
Plaintiffs ask the Court to conditionally certify this case as a collective
action under 29 U.S.C. § 216(b); order TWC to produce a list of all inbound sales
agents employed during the last three years at its San Antonio, Texas location; and
issue notice subject to the procedure and methods laid out in their Motion. (Dkt.
# 1 at 4.) TWC has elected not to challenge Plaintiffs’ assertion that they have met
the “lenient” standard for conditional certification under the FLSA. (Dkt. # 16 at
1.) However, TWC objects to Plaintiffs’ request for a “gag order” on TWC; to the
contact information requested by Plaintiffs; and to Plaintiffs’ proposals regarding
the manner, timing, and content of notice to putative class members. (Id.) The
Court addresses each of TWC’s objections in turn.
Request for “Gag Order”
TWC first objects to Plaintiffs’ request for a “gag order,” included in
the proposed order granting Plaintiffs’ Motion (Dkt. # 9-9). The proposed order
includes the following language:
Defendant is hereby prohibited from communicating, directly or
indirectly, with any current or former inbound sales agent about any
matters which touch or concern the settlement of any outstanding
wage claims or other matters related to this suit during the opt-in
period. Defendant shall so instruct all of its supervisors. This order
shall not restrict Defendant from discussing with any current inbound
sales agent matters that arise in the normal course of business.
(Dkt. # 9-9 at 3.) TWC argues that this language prohibits TWC and its counsel
from communicating with putative class members regarding this litigation during
the opt-in period, and contends that such a restraint on contact is unjustified in this
case. (Dkt. # 16 at 2, 7.) Plaintiffs state that they only request that TWC be
prohibited from speaking with class members regarding this lawsuit, settlement, or
any other matters which touch or concern this case. (Dkt. # 19 at 2.) Plaintiffs
argue that such a prohibition is necessary to avoid misinformation, to allow notice
to come from a single source, and to avoid the potential for chilling participation or
Because class actions present special opportunities for abuse, courts
have broad authority to govern the conduct of both counsel and parties in FLSA
collective actions. Belt v. Emcare, Inc., 299 F. Supp. 2d 664, 667 (E.D. Tex. 2003)
(citing Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 171 (1989)). This
authority includes the power to restrict communication between a party and absent
class members; however, the court’s discretion in this area is “not unlimited.” Gulf
Oil Co. v. Bernard, 452 U.S. 89, 100 (1981). The Supreme Court has explained
that “an order limiting communications between parties and potential class
members should be based on a clear record and specific findings that reflect a
weighing of the need for a limitation and the potential interference with the rights
of the parties.” Id. at 101. Furthermore, district courts may not restrict
communication “without a specific record showing by the moving party of the
particular abuses by which it is threatened.” Id. at 102 (quoting Coles v. Marsh,
560 F.2d 186, 189 (3d Cir. 1977). 1 Since Gulf Oil, courts have developed a twostep standard for determining when a party’s communication to putative class
members may be restricted. The party moving to limit communication must make
two showings: “(1) that a particular form of communication has occurred or is
threatened to occur, and (2) that the particular form of communication at issue is
abusive and threatens the proper functioning of the litigation.” Bass v. Pjcomm
Acquisition Corp., No. 09-cv-01614-REB-MEH, 2011 WL 902022, at *3 (D. Colo.
Mar. 14, 2011); Ojeda-Sanchez v. Bland Farms, 600 F. Supp. 2d 1373, 1378 (S.D.
Ga. 2009); Cox Nuclear Med. v. Gold Cup Coffee Servs., Inc., 214 F.R.D. 696,
697–98 (S.D. Ala. 2003).
Here, Plaintiffs have not met their burden of showing that an abusive
form of communication has occurred or is threatened to occur such that limiting
communication is warranted. Plaintiffs simply speculate that the prohibitive
language is necessary to avoid potential confusion and a possible chilling effect on
putative class members. (Dkt. # 19 at 2.) “The ‘mere possibility of abuses’ does
not justify routine adoption of a communications ban.” Vogt v. Tex. Instruments
Although Gulf Oil dealt with the Rule 23 class action context, the same concerns
and considerations apply to § 216(b) FLSA cases. Hoffman-La Roche, 493 U.S. at
Inc., No. 3:05-CV-2244-L, 2006 WL 4660133, at *3 (N.D. Tex. Aug. 8, 2006)
(citing Gulf Oil, 452 U.S. at 102). “While actual harm need not be proved to
justify an order limiting class contacts, the movant must at least present evidence
that a potential likelihood for serious abuse exists.” Id. (citation omitted).
Plaintiffs’ speculation, which is general in nature and not tied in any manner to this
particular case or this particular defendant, is insufficient to allow the Court to
make the specific findings required to support a limitation on communication. The
Court thus finds that Plaintiffs’ proposed limiting language is inappropriate at this
Requested Contact Information
Next, TWC objects to the breadth of contact information for putative
class members requested by Plaintiffs. Plaintiffs request that TWC be ordered to
produce the names, all known addresses, all phone numbers, dates of birth, all
known email addresses (both work and personal), Social Security numbers, and
dates of employment for all potential class members employed from three years
prior to the filing of this lawsuit to the present. (Dkt. # 9 at 10–11.) TWC argues
that Plaintiffs’ request for Social Security numbers, dates of birth, phone numbers,
and email addresses should be denied because of privacy concerns, including the
potential for identity theft. (Dkt. # 16 at 10.) TWC contends that notice by regular
mail to putative class members’ last known address is sufficient in this case. (Id.)
The Court finds that the extensive disclosures requested by Plaintiffs
are inappropriate at this stage of the case. “The benefits of a collective action
‘depend on employees receiving accurate and timely notice concerning the
pendency of the collective action, so that they can make informed decisions about
whether to participate.’” Behnken v. Luminant Min. Co., LLC, 997 F. Supp. 2d
511, 523 (N.D. Tex. 2014) (quoting Hoffman-La Roche, 498 U.S. at 170). Thus,
the Court’s aim is to ensure that putative class members actually receive notice in a
timely manner. While there is not a great deal of uniformity with respect to the
types of information courts generally order defendants to produce, many have
taken the view that putative class members’ names and addresses are sufficient to
ensure that notice is received. 2 E.g., Altiep v. Food Safety Net Servs., Ltd., No.
3:14-CV-00642-K, 2014 WL 4081213, at *6 (N.D. Tex. Aug. 18, 2014) (denying
plaintiffs’ request for telephone numbers and email addresses because “Plaintiffs
have shown no reason that sending a letter to a potential plaintiff’s last known
With respect to Social Security numbers in particular, privacy and security
concerns outweigh the interest in ensuring that notice is received at this stage. See
White v. Integrated Elec. Techs., Inc., No. 12-359, 2013 WL 2903070, at *10
(E.D. La. June 13, 2013) (denying plaintiffs’ request for production of the last four
digits of Social Security numbers because plaintiffs were adequately equipped to
notify all potential class members and privacy concerns outweighed the benefits of
disclosure); Humphries v. Stream Int’l, Inc., No. 3:03-CV-1682-D, 2004 U.S. Dist.
LEXIS 20465, at *12 (N.D. Tex. Feb 13, 2004) (declining to require defendants to
produce telephone numbers, dates of birth, and social security numbers because
“[a]ny need for the compelled disclosure of such data is outweighed by the privacy
interests of these current and former workers”).
address would provide inadequate notice”); Aguayo v. Bassam Odeh, Inc., No.
3:13-CV-2951-B, 2014 WL 737314, at *6 (N.D. Tex. Feb. 26, 2014) (limiting
production to putative class members’ names, last known addresses, and dates of
employment); Page v. Nova Healthcare Mgmt., LLP, No. H-12-2093, 2013 WL
4782749, at *7 (S.D. Tex. Sept. 6, 2013) (denying plaintiffs’ request for telephone
numbers “because of the highly private and sensitive nature of this information”
and limiting production to potential plaintiffs’ names and last known mailing
For those putative class members whose notices are returned as
undeliverable, Plaintiffs may request the production of additional information to
assist them in reaching those individuals. See Aguayo, 2014 WL 737314, at *6
(ordering defendants to produce additional information for individuals whose mail
was returned as undeliverable); Heeg v. Adams Harris, Inc., 907 F. Supp. 2d 856,
865–66 (S.D. Tex. 2012) (noting that plaintiffs’ counsel could request additional
information for putative class members whose notices were returned as
Proposed Notice to Putative Class Members
Finally, TWC raises various objections to the content of Plaintiffs’
proposed notice and opt-in forms. Plaintiffs propose to send notice to putative
class members via regular mail, email, and posting at TWC’s place of business,
and they provide the Court with a proposed notice and opt-in form which they
propose to send to potential class members. (Dkt. # 9 at 10; Exs. F–G.) TWC
raises objections both to Plaintiffs’ proposed methods of sending notice and to the
content of the notice and opt-in forms themselves. (Dkt. # 16 at 9–17.) The Court
addresses each of TWC’s objections in turn.
Method of Sending Notice
Plaintiffs propose to send notice and consent forms by first class mail
and electronic mail to all potential opt-ins employed at any time during the threeyear period before this lawsuit was filed to the present. (Dkt. # 9 at 11–12.)
Plaintiffs also request that notice be prominently posted at TWC’s place of
business and that a copy of the proposed notice be included with each putative
class member’s paycheck. (Id. at 15.) Finally, Plaintiffs request that a second
notice be sent out thirty days before the opt-in deadline passes, but only to those
individuals who have not opted in to the lawsuit. (Id.)
TWC raises three objections to Plaintiffs’ proposed method of sending
notice. First, TWC argues that Plaintiffs’ request to send notice via email should
be denied as misleading, disruptive, and unnecessary. (Dkt. # 16 at 11.) Second,
TWC argues that Plaintiffs’ request to use a “click-through” consent form in the
email notice should be denied because it is susceptible to fraud and discourages
thoughtful, informed participation. (Id. at 12.) Last, TWC argues that Plaintiffs’
request for posting, reminder notices, and paycheck enclosures should be denied.
(Id. at 13.) Because the Court is not ordering production of putative class
members’ email addresses at this time, the Court does not address TWC’s first two
TWC argues that posting notice in the workplace, enclosing notice in
employee paychecks, and reminder postcards are inappropriate absent a specific
showing that traditional notice is insufficient to provide timely, accurate notice.
(Id.) Posting notice in a workplace is often used to inform employees of their
rights in labor disputes, Hoffman Plastic Compounds, Inc. v. NLRB, 525 U.S. 137,
152 (2002), and has been approved as an appropriate form of notice in FLSA
cases. E.g, Pacheco v. Aldeeb, No. 5:14-CV-121-DAE, 2015 WL 1509570, at *9
(W.D. Tex. Mar. 31, 2015); Barajas v. Acosta, No. H-11-3862, 2012 WL 1952261,
at *4 (S.D. Tex. May 30, 2012). Furthermore, the Court finds that posting notice
in TWC’s workplace is not unduly burdensome. The call center is not open to the
public, so there is no danger of reputational harm or other adverse impact on
TWC’s business. The Court also finds that posting notice in the workplace is a
simple and effective way of ensuring that notice reaches all of the putative class
members currently employed by TWC, and therefore approves notice by posting. 3
The Court notes that at the hearing, counsel for TWC represented that TWC
would agree to notice by posting in lieu of being ordered to produce putative class
However, the Court finds that sending notice forms along with employee
paychecks is both redundant and unnecessary, and thus declines Plaintiffs’ request
to enclose notice in employees’ paychecks.
There is a split among district courts as to whether reminder notices to
putative class members are proper in FLSA actions. See Guzelgurgenli v. Prime
Time Specials, Inc., 883 F. Supp. 2d 340, 357–58 (E.D.N.Y. 2012) (noting that
some courts have denied requests for reminder notices on the grounds that
reminders are unnecessary and could be interpreted as encouragement by the court
to join the lawsuit, while others have recognized that a reminder is appropriate
when sent by plaintiffs’ counsel and not the court). The Guzelgurgenli court
ultimately denied the plaintiffs’ request because they did not identify any reason
why a reminder notice was necessary under the particular circumstances of the
case. Id. at 358. Likewise, Plaintiffs here have not identified any particular reason
why a reminder notice is necessary to ensure sufficient notice under the
circumstances of this case. The Court thus concludes that a reminder notice is
inappropriate in this instance. See also In re Wells Fargo, 2013 WL 2180014, at
*3 (denying plaintiffs’ request for a reminder notice as unnecessary and
members’ “sensitive, personal information” such as Social Security numbers, dates
of birth, phone numbers, and email addresses.
Content of Notice
TWC also objects to the content of Plaintiffs’ proposed notice on
several grounds. First, TWC argues that the notice incorrectly states the applicable
limitations period and must specify the deadline for filing consent forms. (Dkt.
# 16 at 14.) Second, TWC claims that the notice should advise putative class
members of their discovery obligations. (Id. at 15.) Third, TWC asserts that the
notice should inform putative class members that they may be responsible for costs
and expenses. (Id.) Fourth, TWC argues that the notice should include contact
information for both parties’ counsel. (Id. at 16.) Finally, TWC argues that the
notice should advise putative class members of their right to retain separate
counsel. (Id.) The Court addresses each objection below.
Limitations Period and Consent Deadline
Plaintiffs request that notice be sent to inbound sales agents employed
by TWC from November 6, 2011 to the present. (Dkt. # 9, Ex. F at 1.) Thus,
Plaintiffs appear to argue that the proper limitations period runs from three years
prior to the date on which this action was commenced to the present. A cause of
action arising out of a willful violation of the FLSA “may be commenced within
three years after the cause of action accrued.” 29 U.S.C. § 255(a). The limitations
period is not tolled as to individual claimants until the claimant files a written
opt-in consent form with the court. 29 U.S.C. § 256(b); Quintanilla v. A & R
Demolition, Inc., No. Civ.A. H-04-1965, 2005 WL 2095104, at *16 (S.D. Tex.
Aug. 30, 2005). Therefore, the limitations period in this case should confine class
certification to inbound sales agents who worked for TWC in the three years prior
to the date on which the Court conditionally certifies the classes—in other words,
three years prior to the date of this Order. See Altiep, 2014 WL 4081213, at *5;
Watson v. Travis Software Corp., No. H-07-4104, 2008 WL 5068806, at *8 (S.D.
Tex. Nov. 21, 2008); Quintanilla, 2005 WL 2095104, at *16. Furthermore, each
potential plaintiff will be required to opt in within three years of employment as an
inbound sales agent. Altiep, 2014 WL 4081213, at *5. The notice must accurately
reflect both of these dates.
Second, TWC argues that the notice should advise putative class
members that they may be required to participate in discovery, and that they may
be required to travel to San Antonio to fulfill this obligation. (Dkt. # 16 at 15.)
Other courts have noted that such an advisory is routinely approved. E.g.,
Behnken, 997 F. Supp. 2d at 524; Whitehorn v. Wolfgang’s Steakhouse, Inc., 767
F. Supp. 2d 445, 450 (S.D.N.Y. 2011). The notice must include an advisory
regarding putative class members’ potential discovery obligations.
Responsibility for Costs and Expenses
Third, TWC argues that the notice should advise potential plaintiffs
that if they do not prevail, they may be responsible for costs and expenses. (Dkt.
# 16 at 15.) As the Behnken court noted, “potential opt-in plaintiffs may be
required to pay taxable court costs if the judgment is unfavorable to them.”
Behnken, 997 F. Supp. 2d at 524. Without such an advisory, “the proposed notice
form is not completely accurate as to the potential liabilities for those who join the
lawsuit.” Id. Furthermore, the advisory is necessary for potential plaintiffs to
make an informed decision about whether to opt in to the lawsuit. Id. Plaintiffs’
proposed notice includes the language, “If the inbound sales agents lose, you will
receive nothing, but you will not have to pay anything either.” (Dkt. # 9, Ex. F at
1.) This language is misleading and inaccurate and must be stricken from the
notice. Furthermore, the notice must inform potential plaintiffs that they could be
liable for their proportional share of taxable court costs if they do not prevail in this
Defense Counsel’s Contact Information
Fourth, TWC argues that the notice should provide complete contact
information for both parties’ counsel. (Dkt. # 16 at 16.) Again, there is a split
among district courts as to whether the inclusion of defense counsel’s contact
information is appropriate. Some have stated that “there is no basis in logic” for
the request to include defense counsel’s contact information, while others note that
“FLSA opt-in notices often contain the names of all counsel.” Compare Behnken,
997 F. Supp. at 525; Gambo v. Lucent Techs., Inc., No. 05 C 3701, 2005 WL
3542485, at *7 (N.D. Ill. May 10, 2010), with Gonzalez v. Ridgewood
Landscaping, Inc., No. H-09-2992, 2010 WL 1903602, at *8 (S.D. Tex. May 10,
Courts declining to order the inclusion of defense counsel’s contact
information generally cite ethical concerns about post-certification communication
between defense counsel and class members. Generally, courts agree that “[o]nce
a class has been certified, the rules governing communications [with class
members] apply as though each class member is a client of the class counsel.”
Harris v. Vector Mktg. Corp., 716 F. Supp. 2d 835, 847 (N.D. Cal. 2010) (citing
Manual of Complex Litig. § 21.33 at 300 (4th ed. 2004)). As the Harris court
noted, “[i]ncluding contact information for defense counsel in the class notice risks
violation of ethical rules and inadvertent inquiries, thus engendering needless
confusion.” Id. The Court finds this reasoning persuasive, and finds that inclusion
of defense counsel’s contact information is unwarranted. See also McCloud v.
McClinton Energy Grp., LLC, No. 7:14-CV-120, 2015 WL 737024, at *10 (W.D.
Tex. Feb. 20, 2015).
Right to Retain Separate Counsel
Last, TWC argues that the notice should include information
regarding putative class members’ right to retain counsel of their own choosing.
(Dkt. # 16 at 16.) TWC asserts that without this advisory, the notice gives the
inaccurate impression that the sole avenue for class members to pursue their claims
is through Plaintiffs’ counsel. (Id. at 17.) The Court agrees with TWC, and finds
that the notice must advise putative class members of their right to retain separate
counsel and pursue their rights independently from the class. See, e.g., Lee v.
Veolia ES Indus. Servs., Inc., No. 1:12-CV-136, 2013 WL 2298216, at *20 (E.D.
Tex. May 23, 2013); Gambo, 2005 WL 3542485, at *7.
For the reasons stated above, the Court hereby GRANTS IN PART
AND DENIES IN PART Plaintiffs’ Motion for Conditional Certification of a
Collective Action and Authorization for Notice. (Dkt. # 4.) TWC is ORDERED
to produce, in a usable electronic format, the names, last known addresses, and
dates of employment for all putative class members within ten days of the date of
this Order. For those individuals whose notices are returned as undeliverable,
Plaintiffs may request additional information from TWC. The parties are further
ORDERED to confer and prepare agreed-upon notice and consent forms
consistent with this Order. The parties shall jointly submit such forms to the Court
by Friday, May 1, 2015.
IT IS SO ORDERED.
DATED: San Antonio, Texas, April 16, 2015.
David Alan Ezra
Senior United States Distict Judge
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