Graham v. Jet Specialty, Inc.

Filing 29

ORDER RESOLVING DISPUTE re 28 NOTICE of Dispute Regarding Form of Notice and Consent filed by Jet Specialty, Inc.. Signed by Judge David A. Ezra. (lg1)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
MIDLAND DIVISION
STACY GRAHAM, on behalf of
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himself and all others similarly situated, §
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Plaintiff,
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vs.
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JET SPECIALTY, INC.,
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Defendant.
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MO-15-CV-135-DAE

ORDER RESOLVING DISPUTE REGARDING
FORM OF NOTICE AND CONSENT
Before the Court is a Joint Notice of Dispute Regarding Form of
Notice and Consent. (Dkt. # 28.) Pursuant to Local Rule CV-7(h), the Court finds
these matters suitable for disposition without a hearing. On January 11, 2016, this
Court granted in part Plaintiff Stacy Graham’s Motion for Conditional Class
Certification, and ordered the parties to meet and confer regarding the Notice and
Consent Form to be sent to potential opt-in plaintiffs. (Dkt. # 23.) On January 26,
2016, Plaintiff and Defendant Jet Specialty, Inc. (“Defendant” or “Jet”) filed the
instant Notice to the Court regarding their dispute as to three provisions of the
proposed notice and consent form. (Dkt. # 28.) The Court now resolves the
dispute as follows.

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I. Disagreement Regarding Proposed Notice
Defendant objects to the current form of paragraph six of the
Proposed Notice form:
6. Your Legal Representation if You Join
If you choose to join this suit, and agree to be represented through the
driver’s attorneys, your counsel in this action will be James M. Loren
of the law firm Loren Law Group. The firm’s contact information is
below.
(Dkt. # 28, Ex. A ¶ 4.)
As the Court stated in its January 11 order, a notice form must inform
potential class members that they are not required to retain Plaintiff’s current
counsel and that they may contact any attorney. See Tolentino v. C&J Spec–Rent
Servs. Inc., 716 F. Supp. 2d 642, 655 (S.D. Tex. 2010) (“[T]he notice must inform
potential class Plaintiffs that they may contact any attorney of their choosing to
discuss the case.”) The Court’s January 11 order explained that the proposed
notice did not explicitly state that opt-in plaintiffs may contact any attorney to
represent them in the case, and directed the parties to reform the notice to include
this information. The parties did not comply with this instruction; the proposed
paragraph is identical to the paragraph this Court directed parties to reform.
Further, paragraph three of the instant Proposed Notice, entitled
“What are Your Options?” includes the same information that is contained in
paragraph six: namely, information regarding opt-in plaintiffs’ options for
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representation, should they choose to join the suit. (Dkt. # 28, Ex. A ¶ 3.)
Accordingly, paragraph six does not include any new or necessary information,
and the Court directs that paragraph six be removed from the instant notice.
II. Disagreement Regarding Proposed Consent Form
Defendants raise two objections to the content of the Proposed
Consent Form. Each is discussed below.
A. Disagreement as to Paragraph Three
Defendant objects to the current form of paragraph three of the
Proposed Consent Form, which currently reads:
I am aware that I may hire an attorney of my own choosing but agree
to have James M. Loren of Loren & Loren & Associates, P.A. to
represent me in this action. If I choose my own attorney, that attorney
must file a notice of appearance with the Clerk of Court.
(Dkt. # 28, Ex. B ¶ 3.)
As the Court stated in its January 11 order, opt-in consent forms may
be submitted to Plaintiff’s counsel, so long as the form does not include language
requiring the forms to be submitted through Plaintiff’s counsel. See Behnken v.
Luminant Min. Co., LLC, 997 F. Supp. 2d 511, 525 (N.D. Tex. Feb. 14, 2014);
Tolentino, 716 F. Supp. 2d at 655. Further, as explained above, the notice or
consent form must inform potential class members that they may contact any
attorney to represent them. The language in paragraph three, as it currently reads,
may cause an opt-in plaintiff to believe that she must retain Plaintiff’s counsel.
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The Court finds that Defendant’s proposed paragraph three, which gives opt-in
plaintiffs the option to retain Mr. Graham’s counsel, but also explicitly informs
opt-in plaintiffs that they have the option to retain other counsel, fairly presents the
representation options available to opt-in plaintiffs:
I am aware that I may hire an attorney of my own choosing. Please
check one:
______ I agree to have James M. Loren of Loren & Associates, P.A.
to represent me in this action; or
______ I choose my own counsel whose name, address and phone
number are as follows: _____________________________________
Accordingly, the Court directs that paragraph three of the proposed
consent form be reformed to include the language above.
B. Disagreement as to Inclusion of Informational Questionnaire
Finally, Defendant objects to the inclusion of an informational
questionnaire with the notice and consent form. (Dkt. # 28 ¶ 3; Dkt. # 28, Ex. B.)
Defendant argues that the questionnaire is both confusing and unnecessary and that
neither the Court nor Jet should be involved in approving the information
Plaintiff’s counsel obtains from opt-in plaintiffs. (Dkt. # 28 ¶ 3.) Plaintiff’s
counsel argues that “[w]ithout the proposed questionnaire, Plaintiff’s counsel has
no way of easily contacting a client who has duly retained him.” (Id.)
“Courts have discretion in deciding how notice is distributed.”
Rodriguez v. Gold & Silver Buyers, Inc., No. 4–12–CV–1831, 2013 WL 5372529,
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at *6 (S.D. Tex. Sept. 24, 2013) (“Courts have discretion, in appropriate cases, to
implement 29 U.S.C. § 216(b) . . . by facilitating notice to potential plaintiffs”
(quoting Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989))). Here,
the questionnaire Plaintiff wishes to include is neither relevant to providing
potential opt-in plaintiffs notice of the lawsuit, nor to their ability to consent to
suit. Like the other disputed provisions of the notice and consent form, this
questionnaire may cause an opt-in plaintiff to believe she must retain Plaintiff’s
counsel, or that she must provide personal information to Plaintiff’s counsel, in
order to proceed with the suit. Plaintiff’s counsel may obtain information from any
newly-retained clients using the same means he used to provide notice of the
instant lawsuit. Accordingly, the Court directs that the questionnaire be removed
from the proposed consent form.
CONCLUSION
For the foregoing reasons, the Court DIRECTS the parties to (1)
remove paragraph six from the proposed notice form; (2) reform paragraph three of
the proposed consent form to include the language in the instant order; (3) remove
the questionnaire from the proposed consent form. The Proposed Notice and
Consent Form is otherwise APPROVED.

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IT IS SO ORDERED.
DATED: Midland, Texas, February 3, 2016.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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