Bazzell et al v. Body Contour Centers, LLC

Filing 33

ORDER REGARDING PLAINTIFFS' 20 MOTION FOR CONDITIONAL CERTIFICATION, NOTICE, AND OTHER ISSUES by Judge James L. Robart. (AD)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JAMIE BAZZELL, et al.,
Plaintiffs,

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ORDER REGARDING
PLAINTIFFS’ MOTION FOR
CONDITIONAL CERTIFICATION,
NOTICE, AND OTHER ISSUES

v.

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CASE NO. C16-0202JLR

BODY CONTOUR CENTERS, LLC,

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Defendant.

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I.

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INTRODUCTION

Before the court is Plaintiffs Jamie Bazell and Carissa Alioto’s motion for an order

17 (1) authorizing conditional certification of this putative collective action pursuant to the
18 Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), and compelling Defendant
19 Body Contour Centers, LLC, d/b/a Sono Bello (“BCC”), to provide Plaintiffs with the
20 identification and contact information for all putative plaintiffs or members of the
21 collective action in electronic format; (2) permitting Plaintiffs to send putative plaintiffs
22 or members of the collective action notice and a reminder letter of the suit in the manner
ORDER- 1

1 proposed by Plaintiffs; (3) permitting Plaintiffs to send an email notification to putative
2 plaintiffs or members of the collective action; (4) requiring BCC to post notice of the
3 collective action at its facilities; (5) providing putative members of the collective action
4 60 days to decide whether they wish to join the action, and (6) tolling the statute of
5 limitations from the date this motion was filed until 60 days after the notice is mailed to
6 putative collective members. (Mot. (Dkt. # 20); Mem. (Dkt. # 20-1).)
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BCC opposes the motion. (See generally Resp. (Dkt. # 24).) BCC argues that the

8 motion should be denied because Plaintiffs’ description of the defendant is misleading
9 and their putative collective action includes as putative plaintiffs consultants who are not
10 employed by BCC. (Id. at 5-6.) BCC also argues that Plaintiffs’ proposed notice to
11 putative collective members is misleading or otherwise objectionable. (Id. at 10.) In
12 addition, BCC also objects to Plaintiffs’ request to send notice of the action to putative
13 collective members via email and post the notice at BCC facilities. (Id. at 10-11.)
14 Finally, BCC argues that Plaintiffs have not met the applicable standard for equitable
15 tolling of the limitations period for collective actions under the FSLA. (Id. at 6-10.)
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In their reply, Plaintiffs agree to narrow the scope of their proposed collective

17 definition and implicitly abandon their argument that the court should toll the statute of
18 limitations by failing to respond to BCC’s argument. (Reply (Dkt. # 26).) Plaintiffs
19 insist, however, that in addition to mailing, notice of the suit should be emailed to
20 putative collective members and posted at BCC’s facilities.
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ORDER- 2

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The court has considered the parties’ submissions, the relevant portions of the

2 record, and the applicable law. Being fully advised, 1 the court GRANTS in part and
3 DENIES in part Plaintiffs’ motion as described below.
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II.

BACKGROUND

Plaintiffs allege that BCC assigned certain employees, known as consultants, more

6 work than could be completed in a 40-hour work week and thereby required consultants
7 to work more than 40 hours per week. (See Compl. ¶¶ 16-17.) Because consultants are
8 not compensated for overtime, Plaintiffs assert that BCC violated the FLSA. (Id. ¶¶ 249 30.) Pursuant to the FLSA, Plaintiffs seek conditional certification of the following
10 collective of BCC employees:
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All persons who worked as patient care consultants, traveling patient care
consultants, sales consultants, or other similar job titles, for Defendant at
any time from April 8, 2013 to the present date (the “FLSA Collective”).

13 (Mem. at 11.)
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Toward this end, Plaintiffs assert that BCC specializes in laser liposuction and

15 “total body transformation,” including body contouring and facial lifting. 2 (Compl. (Dkt.
16 # 1) ¶ 8; Am. Ans. (Dkt. # 15) ¶ 8.) BCC staffs its clinics with physicians, nurses, front
17 desk coordinators, practice managers, and patient care consultants. (See Alioto Decl.
18 (Dkt. # 21-1 at 2) ¶¶ 3-4; Anderson Decl. (Dkt. # 21-1 at 4) ¶¶ 3-4; Bazzell Decl. (Dkt. #
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No party has requested oral argument, and the court considers it unnecessary for
disposition of this motion. See Local Rules W.D. Wash. LCR 7(b)(4).
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BCC describes these services as including tumescent liposuction, laser lipolysis, and

22 VelashapeTM contouring. (Par Decl. (Dkt. # 25) ¶ 11.)
ORDER- 3

1 21-1 at 6) ¶¶ 3-4; Lecense Decl. (Dkt. # 21-1 at 8) ¶¶ 3-4; Newberry Decl. (Dkt. # 21-2 at
2 10) ¶¶ 3-4.) Ms. Bazzell and Ms. Alioto worked as patient care consultants for BCC.
3 (Alioto Decl. ¶ 2; Bazzell Decl. ¶ 2.) BCC employs consultants in various locations
4 throughout the country. (Compl. ¶ 9.) To date, five current or former consultants have
5 joined Plaintiffs’ suit as opt-in Plaintiffs. (Mem. at 3.)
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Plaintiffs assert that all consultants share the same primary job duty: selling

7 BCC’s body transformation procedures and other medical-cosmetic services to patients
8 during scheduled appointments. (See Alioto Decl. ¶ 4; Anderson Decl. ¶ 4; Bazzell Decl.
9 ¶ 4; Lecense Decl. ¶ 4; Newberry Decl. ¶ 4.) Appointments between consultants and
10 potential patients are scheduled throughout the day at BCC’s clinics. (Alioto Decl. ¶ 4;
11 Anderson Decl. ¶ 4; Bazzell Decl. ¶ 4; Lecense Decl. ¶ 4; Newberry Decl. ¶ 4; see also
12 Par Decl. ¶ 13.) During these appointments, consultants advise patients of the various
13 risks and benefits associated with BCC’s procedures and discuss financing options.
14 (Alioto Decl. ¶ 4; Anderson Decl. ¶ 4; Bazzell Decl. ¶ 4; Lecense Decl. ¶ 4; Newberry
15 Decl. ¶ 4; see also Par Decl. ¶ 13.)
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Plaintiffs allege that BCC pays all its consultants in the same manner: a monthly

17 salary plus commissions. (Compl. ¶ 19; Alioto Decl. ¶ 5; Anderson Decl. ¶ 5; Bazzell
18 Decl. ¶ 5; Lecense Decl. ¶ 5; Newberry Decl. ¶ 5.) BCC classifies all consultants as
19 exempt from the overtime pay requirements of the FLSA pursuant to the retail sales
20 exemption, 29 U.S.C. § 207(i). (See Compl. ¶ 18; Am. Ans. ¶ B (“Defendant is a ‘retail
21 or service establishment’ that operates under a ‘retail concept’ as provided under 29
22 C.F.R. §§ 779.316 and 779.317. As such, Defendant is exempt from the overtime
ORDER- 4

1 provisions of the FLSA pursuant to 29 U.S.C. § 207(i), as to its employees who are paid
2 on a commission basis.”).) Plaintiffs assert that although BCC classifies consultants as
3 “exempt,” BCC nevertheless requires all consultants to track their hours worked using the
4 time-keeping system known as ADP. (Alioto Decl. ¶ 5; Anderson Decl. ¶ 5; Bazzell
5 Decl. ¶ 5; Lecense Decl. ¶ 5; Newberry Decl. ¶ 5.) Plaintiffs testify that they routinely
6 work over 40 hours per week and record a majority, but not all, of their hours in the ADP
7 time-keeping system. (Alioto Decl. ¶ 5; Anderson Decl. ¶ 5; Bazzell Decl. ¶ 5; Lecense
8 Decl. ¶ 5; Newberry Decl. ¶ 5.) Plaintiffs also assert that BCC does not pay its
9 consultants overtime compensation. (Alioto Decl. ¶ 5; Anderson Decl. ¶ 5; Bazzell Decl.
10 ¶ 5; Lecense Decl. ¶ 5; Newberry Decl. ¶ 5.)
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BCC 3 admits that its consultants meet with patients throughout the day at its

12 various locations to market professional services, which include tumescent liposuction,
13 laser lipolysis, and VelashapeTM contouring. 4 (Par Decl. ¶¶ 11, 13.) BCC further
14 admits that it pays its consultants a base salary of about $50,000.00 per year, plus a bonus
15 that is based on sales. (Id. ¶ 15.) However, BCC asserts that Plaintiffs have erred in how
16 they define the class of employees that Plaintiffs claim have been denied overtime.
17 (Resp. at 2.) BCC asserts that “Sono Bello” is not the same as Body Contours Centers,
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BCC is a closely held Washington limited liability company. (Par Decl. ¶ 2.) BCC has
12 members and its corporate headquarters are in Kirkland, Washington. (Id. ¶ 2, Ex. 1.) BCC’s
20 majority owner and manager is Chris Par. (Id.)

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Consultants usually perform their duties within BCC’s facilities; however, some
consultants are required to travel to different clinics. (Par Decl. ¶ 14.) These “traveling
consultants” are assigned to BCC’s corporate office in Kirkland, Washington, for administrative
22 purposes. (Id.)

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ORDER- 5

1 LLC. (Id.) BCC asserts that Sono Bello is not a legal entity but rather a trade name or
2 brand and that more than one entity does business as Sono Bello and employs patient care
3 consultants, but only one of these entities—BCC—is a party to this lawsuit. (Id.)
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BCC asserts that it holds rights to the trade name Sono Bello licenses that name or

5 brand to other companies, which do business as Sono Bello. (Par Decl. ¶ 5.) BCC states
6 that, pursuant to a Management and Services Agreement (“MSA”), Aesthetics
7 Physicians, P.C., an Arizona professional corporation (“Aesthetics Physicians”),
8 contracts with BCC to provide all of Aesthetics Physicians’ management and support
9 services in various locations leased and managed by BCC. (Id. ¶ 6.) Aesthetics
10 Physicians is licensed under the MSA to use Sono Bello as its practice name. (Id.)
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Under the MSA, BCC asserts that it is responsible for providing all of Aesthetics

12 Physicians’ nonprofessional (i.e., nonmedical) services, including management,
13 administration, facilities, and support services, which include marketing. (Id. ¶¶ 6-7.)
14 BCC states that it does not engage in the practice of medicine and is not responsible for
15 Aesthetics Physicians’ provision of medical services. 5 (See id. ¶ 10.) BCC further
16 asserts that it is not responsible for employment decisions regarding the professional staff
17 of Aesthetics Physicians and that Aesthetics Physicians is not responsible for
18 employment decisions regarding the nonprofessional or nonmedical staff of BCC. (Id. ¶
19 8.) Thus, BCC asserts that although Plaintiffs correctly note that each of BCC’s clinics is
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Mr. Par testifies that he is not and has never been licensed to practice medicine and that
he does not practice medicine and never has. (Par Decl. ¶ 5.)

ORDER- 6

1 staffed with physicians and nurses, those physicians and nurses have a different
2 employer—namely, Aesthetics Physicians.
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III.

ANALYSIS

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A. Conditional Certification

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The FLSA mandates that no employer shall employ an employee for more than 40

6 hours in a work week unless that employee is compensated at one and one-half times his
7 or her usual rate for hours worked in excess of 40. 29 U.S.C. § 207(a)(1). Because
8 consultants are not compensated for overtime, Plaintiffs assert that BCC violated the
9 FLSA. (Id. ¶¶ 24-30.)
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The FLSA also provides that employees may pursue their claims collectively:

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An action . . . may be maintained against any employer . . . in any Federal
or State court of competent jurisdiction by any one or more employees for
and on 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.

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29 U.S.C. § 216(b); see Bollinger v. Residential Capital, LLC, 761 F. Supp. 2d 1114,
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1119-21 (W.D. Wash. 2011) (finding that the plaintiffs and the putative collective
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members were similarly situated under the “lenient” conditional certification standard of
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the FLSA). In such cases, the district court has discretion to authorize judicial notice to
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putative collective members to inform them of the action and give them an opportunity to
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participate by opting in. Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169-70
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(1989); see also Bollinger, 761 F. Supp. 2d at 1119. The FLSA’s collective action
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procedure seeks efficient adjudication of similar claims by allowing “similarly situated”
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ORDER- 7

1 employees to join together and pool their resources. See Hoffmann-La Roche, 493 U.S. at
2 170; Bollinger, 761 F. Supp. 2d at 1119.
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In addressing a request for court-authorized notice of a collective action, a court

4 must consider whether plaintiffs have demonstrated the existence of a definable class of
5 plaintiffs who are “similarly situated.” Hoffmann-La Roche, 493 U.S. at 170. Although
6 the Ninth Circuit has not directly addressed the meaning of “similarly situated” under the
7 FLSA, district courts routinely follow a two-tiered approach in determining whether a
8 case should be certified under 29 U.S.C. § 216(b). See Khadera v. ABM Indus., Inc., 701
9 F. Supp. 2d 1190, 1193-94 (W.D. Wash. 2010) (noting trend and applying two-step
10 process); Randolph v. Centene Mgmt. Co., No. C14-5730BHS, 2015 WL 2062609, at *2
11 (W.D. Wash. May 4, 2015) (same); Troy v. Kehe Food Distribs., Inc., 276 F.R.D. 642,
12 649 (W.D. Wash. 2011) (same); see also Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d
13 1208, 1219 (11th Cir. 2001) (adopting two-tiered approach).
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At the first stage, the court determines whether a collective action should be

15 certified for the purposes of sending judicial notice and conducting discovery. Randolph,
16 2015 WL 262609, at *2. Because the court has minimal evidence at the first stage, the
17 “similarly situated” determination is made using a “lenient” standard that “usually results
18 in [conditional] certification” of a representative class. Bollinger, 761 F. Supp. 2d at
19 1119. Under this lenient standard, prospective plaintiffs need not be identical to satisfy
20 the similarly situated requirement. See Villarreal v. Caremark LLC, 66 F. Supp. 3d 1184,
21 1189 (D. Ariz. 2014) (“[P]laintiffs need only show that their positions are similar, not
22 identical, to the positions held by the putative class members.” (internal citations
ORDER- 8

1 omitted)). All that is required is some “modest factual showing” that the plaintiff is
2 similarly situated to the potential class. Misra v. Decision One Mortg. Co., LLC, 673 F.
3 Supp. 2d 987, 993 (C.D. Cal. 2008) (citing Roebuck v. Hudson Valley Farms, Inc., 239 F.
4 Supp. 2d 234, 238 (N.D.N.Y. 2002)). A court can find potential plaintiffs to be
5 “similarly situated” based on a variety of factors “including the specific duties and
6 conditions of employment of the individual plaintiffs, and the various defenses available
7 to the defendant with respect to the individual plaintiffs.” See Wilson v. Maxim
8 Healthcare Servs., Inc., No. C14-789RSL, 2014 WL 7340480, at *3 (W.D. Wash. Dec.
9 22, 2014) (citing Troy, 276 F.R.D. at 649).
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Plaintiffs’ burden may be met by detailed allegations supported by a very small

11 number of sworn statements. See Wilson, 2014 WL 7340480, at *4 (noting that “[t]he
12 general rule for this Circuit is that . . . [a] handful of declarations may suffice” and
13 granting conditional certification based on four declarations across “three [of
14 defendant’s] offices in two states.” (internal citation omitted)); Sanchez v. Sephora USA,
15 Inc., No. 11-03396 SBA, 2012 WL 2945753, at *3 (N.D. Cal. July 18, 2012) (granting
16 conditional certification of a nationwide collective action based on five declarations);
17 Gilbert v. Citigroup, Inc., No. 08-0385 SC, 2009 WL 424320, at *4 (N.D. Cal. Feb. 18,
18 2009) (granting conditional certification of a nationwide collective action based on five
19 declarations); Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 468-69 (N.D. Cal. 2004)
20 (granting conditional certification based on three affidavits from named plaintiffs);
21 Escobar v. Whiteside Constr. Corp., No. C 08-01120 WHA, 2008 WL 3915715, at *4
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ORDER- 9

1 (N.D. Cal. Aug. 21, 2008) (granting conditional certification based on three
2 declarations). 6
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Once discovery is complete and the case is ready for trial, the second step of the

4 conditional-certification analysis takes place. Troy, 276 F.R.D. at 649. The court makes
5 a second determination of the similarly situated question, usually precipitated by the
6 defendant’s motion for decertification. Wilson, 2014 WL 7340480, at *3. At the stricter
7 second stage, the court has much more information on which to base its decision. Id.; see
8 also Troy, 276 F.R.D. at 649 (quoting Grayson v. K Mart Corp., 79 F.3d 1086, 1096
9 (11th Cir. 1996)) (noting that at the second stage the court uses a “stricter standard for
10 determining whether the plaintiffs are ‘similarly situated’”). The court considers
11 Plaintiffs’ present motion under the more lenient standard applicable to the first stage of
12 certification.
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BCC objects to Plaintiffs’ motion for conditional certification on grounds that
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Plaintiffs have confused Aesthetics Physicians, which is also a licensee of the “Sono
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Bello” brand, for BCC. BCC argues that it is a separate and distinct entity from
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Aesthetics Physicians and that “BCC and ‘Sono Bello’ or ‘Sono Bello Body Contour
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Centers’ are not one in [sic] the same.” (Resp. at 5-6 (emphasis in original).) In
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addition, contrary to Plaintiffs’ allegation that BCC has 30 clinics (see Mem. at 3) in 21
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states (Compl. ¶ 9), BCC asserts that it manages just 16 clinics in 12 states: Bellevue and
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Although Plaintiffs’ declarations can be characterized as “cookie cutter,” that fact does
not discredit Plaintiffs’ declarations at the first stage. Wilson, 2014 WL 7340480, at *4 (citing
22 Sanchez, 2012 WL 2945753, at *2).
ORDER- 10

1 Tacoma, Washington; Beverly Hills, Sacramento, and San Diego, California; Chicago,
2 Illinois; Cincinnati and Cleveland, Ohio; Edina, Minnesota; Greenwood, Colorado;
3 Houston, Texas; Overland Park, Kansas; Portland, Oregon; Salt Lake City, Utah;
4 Scottsdale, Arizona; and St. Louis, Missouri (Par Decl. ¶ 9). BCC contends that
5 Plaintiffs’ confusion concerning the number of BCC locations likely stems from the fact
6 that BCC licenses the Sono Bello brand to other entities in additional states. (See Resp.
7 at 5.) Thus, “[t]o the extent Plaintiffs are requesting a class comprised of ‘Sono Bello’
8 patient care consultants who are not employed by BCC,” BCC argues Plaintiffs’ motion
9 should be denied. (Id. at 6.)
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In reply, Plaintiffs state that, after receiving BCC’s response, Plaintiffs’ counsel

11 consulted with BCC’s counsel and agreed to limit the scope of Plaintiffs’ proposed
12 collective to include only those consultants who worked in the 16 locations identified by
13 BCC. (See Reply at 2.) Plaintiffs’ revised request for conditional certification includes:
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All individuals who worked as patient care consultants, traveling patient
care consultants, patient sales consultants (or other similar job titles), for
Defendant Body Contour Centers, LLC d/b/a Sono Bello at any time from
February 10, 2013, at any of the following locations:
Bellevue,
Washington; Tacoma, Washington; Beverly Hills, California; Sacramento,
California; San Diego, California; Chicago, Illinois; Cincinnati, Ohio;
Cleveland, Ohio; Edina, Minnesota; Greenwood, Colorado; Houston,
Texas; Overland Park, Kansas; Portland, Oregon; Salt Lake City, Utah;
Scottsdale, Arizona; and St. Louis, Missouri.

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ORDER- 11

1 (Id. at 1-2.) 7 The modification Plaintiffs propose appears to address BCC’s sole
2 objection to conditional certification.
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BCC has not refuted Plaintiffs’ claims that they are “similarly situated.” BCC

4 does not dispute that Plaintiffs and all other consultants were classified as exempt or that
5 Plaintiffs were not paid overtime. They have not offered any declarations from
6 consultants or others claiming that consultants were paid overtime. Other than evidence
7 regarding the number and locations of BCC’s facilities and the distinctions between
8 BCC, Sono Bello, and Aesthetics Physicians, BCC has not offered any evidence
9 contradicting Plaintiffs’ account. BCC’s failure to contradict Plaintiffs’ claims of
10 similarity is grounds for granting certification at this stage of the proceeding. See
11 Bollinger, 761 F. Supp. 2d at 1121. Accordingly, the court grants Plaintiffs’ motion for
12 conditional certification based on Plaintiffs’ revised request. In addition, the court orders
13 BCC to provide Plaintiffs with the identification and contact information for all putative
14 plaintiffs or members of the collective action as defined above. BCC must provide that
15 information in electronic format within 20 days of the date of this order.
16 //
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Neither BCC nor Plaintiffs explain why the FLSA collective period was extended from
“April 8, 2013 to the present” in Plaintiff’s original motion (see Mem. at 11) to February 10,
20 2013, to the present in BCC’s response (see Resp. at 11) and Plaintiffs’ Reply (see Reply at 1).
However, BCC did not object to enlargement of the period and acknowledged the enlarged time
21 period in its proposed revised email notification. (See Resp. at 11.) The enlarged period appears
to correspond with the three-year statute of limitations for “willful” violations of the FLSA. See
29 U.S.C. § 255(a). As BCC notes, February 10, 2013, is three years prior to the date on which
22 Plaintiffs filed suit. (Resp. at 10.)

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ORDER- 12

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B. Notice by Mail

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The court must ensure that notice is “timely, accurate, and informative.”

3 Hoffman-La Roche, 493 U.S. at 172. Plaintiffs provide a proposed notice and consent
4 form to be mailed to all members of the collective action. (See Skemp Decl. (Dkt. # 21)
5 Ex. 4.) The proposed notice provides for a 60-day period during which putative
6 collective members may join this lawsuit. 8 (See id.)
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“BCC does not oppose, in principle, the sending of a [c]ourt-approved notice

8 to . . . consultants . . . [who] BCC has employed since February 10, 2013 (three years
9 prior to this suit being filed).” (Resp. at 10.) However, BCC objects to the notice on two
10 grounds. First, BCC objects to the shortening of “Body Contour Centers, LLC, d/b/a
11 Sono Bello” to “Sono Bello” as misleading. (Id.) Instead, BCC suggests that its formal
12 name not be shortened at all or be shortened to “BCC.” (Id.) BCC also objects to
13 references in the consent form to “my current/former employer(s) Sono Bello, Body
14 Contour Centers, LLC, and any other related entities or affiliates (‘Defendants’).” (Id.)
15 BCC objects to this wording because no other entities have been joined to this suit. (Id.)
16 Thus, BCC argues that the first paragraph of the consent form should be amended as
17 follows: “I consent to make a claim under the Fair Labor Standards Act, 20 U.S.C.
18 § 201, et seq. against my current/former employer, Body Contour Centers, LLC
19 (‘Defendant’) to recover my overtime pay.” (Id.)
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Case law indicates that a 60-day notice period is appropriate. See Senne v. Kan. City
Royals Baseball Corp., No. 14-CV-00608-JCS, 2015 WL 6152476, at *19 (N.D. Cal. Oct. 20,
2015) (“[T]imeframes of sixty to ninety days appear to have become the presumptive standard in
22 this District.”).

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ORDER- 13

1

The court agrees with BCC that Plaintiffs’ proposed notice letter should be

2 modified in the manner and for the reasons that BCC suggests. Accordingly, the court
3 grants Plaintiffs’ motion to mail the proposed notice and consent form to all putative
4 plaintiffs or members of the collective as described above, but subject to the two
5 modifications BCC details in its in response. (See Resp. at 10.)
6

Plaintiffs also request that the court authorize one reminder letter to putative

7 collective members who had not yet opted into the case on or about the forty-fifth day of
8 the 60-day period. (Mem. at 14-15; see Skemp Decl. Ex. 5 (attaching Plaintiffs’
9 proposed reminder letter).) BCC provides no response or objection to Plaintiffs’ request
10 for one reminder letter. (See generally Resp.) The court grants Plaintiffs’ motion to mail
11 the proposed reminder letter on or about the forty-fifth day of the notice period, but
12 subject to the same two modifications BCC detailed in its response to Plaintiffs’ initial
13 notice letter.
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C. Notice by Email

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In addition to notice by mail, Plaintiffs request that the court authorize notice by

16 email to the last known email address of each putative plaintiff or member of the
17 collective. (Mem. at 13-14.) Plaintiffs request that the subject line of the email read:
18 “Right to Join a Lawsuit to Recover Unpaid Wages Against Sono Bello.” (Id. at 13.)
19 The text of Plaintiffs’ proposed email would read:
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If you worked for Sono Bello as a consultant, a collective action lawsuit
may affect your rights. A court authorized this notice. This is not a
solicitation from a lawyer. To learn more about this lawsuit please visit
www.nka.com/[text of hyprerlink].

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ORDER- 14

1 (Id.)
2

BCC objects to the sending of email notification. (Resp. at 11.) BCC argues that

3 email notification is prejudicial because emails can be easily forwarded to consultants for
4 other “Sono Bello” employers who are not putative members of the collective but who
5 may nevertheless attempt to opt in. (See id.) Numerous courts have authorized email
6 notification. See, e.g., Woods v. Vector Mktg. Corp., No. 14-0264, 2015 WL 1198593, at
7 *7 (N.D. Cal. Mar. 16, 2015) (granting request to send notice via website, email,
8 postcard, and Facebook advertisements); Benedict v. Hewlett-Packard Co., No. 13-CV9 00119-LHK, 2014 WL 587135, at *14 (N.D. Cal. Feb. 13, 2014) (“Courts routinely
10 approve the production of email addresses . . . with other contact information to ensure
11 that notice is effectuated, and the Court finds that warranted here as well.”); Lewis v.
12 Wells Fargo & Co., 669 F. Supp. 2d 1124, 1128 (N.D. Cal. 2009) (“The Court finds that
13 providing notice by first class mail and email will sufficiently assure that potential
14 collective action members receive actual notice of this case. Defendant’s objection to the
15 production of email addresses is baseless.”). Email is no longer novel but a routine and
16 critical form of communication. The court concludes that BCC’s objection to email as a
17 form of notification is without merit.
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BCC also objects to the content of Plaintiffs’ proposed email notification on

19 several grounds. First, BCC objects to the reference to Sono Bello because it is
20 misleading regarding the identity of the defendant in this action. (Resp. at 11.) BCC also
21 objects to the statement that the email “is not a solicitation from a lawyer” on the ground
22 that the statement is contradicted by the fact that the email will be sent by Plaintiffs’
ORDER- 15

1 lawyer. (Id.) Finally, BCC objects to Plaintiffs’ statement that the lawsuit “may affect
2 your rights.” (Id.) BCC asserts that a putative plaintiff’s rights are only affected if he or
3 she actually opts into the suit. (Id.)
4

The court agrees with BCC that Plaintiffs’ statement that the “lawsuit may affect

5 your rights” is misleading in the context of an opt-in collective action. If this were a
6 Federal Rule of Civil Procedure 23 class action, then taking no action would affect
7 putative plaintiffs because they would be in the lawsuit unless they affirmatively elected
8 to opt out. In this opt-in FLSA collective action, however, doing nothing will have no
9 effect on an employee’s rights because he or she will not be bound by any judgment and
10 remains free to bring his or her own suit. The consultants’ right to sue is not jeopardized
11 by declining or failing to join this lawsuit.
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The court also agrees that Plaintiffs’ reference to “Sono Bello” is misleading as to

13 the identity of the defendant in this suit. As noted above, BCC licenses the name Sono
14 Bello to other companies, which in turn do business as Sono Bello. (See Par Decl. ¶ 5.)
15 Thus, referencing Sono Bello in the heading and body of the email, without indicating
16 that Sono Bello is a d/b/a for BCC, is potentially misleading regarding the defendant in
17 this action. Accordingly, the court orders that in any notice provided to putative plaintiffs
18 or member of the collective action—sent via email or otherwise—Plaintiffs shall refer to
19 BCC as “Body Contour Centers, LLC, d/b/a Sono Bello,” which may subsequently be
20 shortened to “BCC” within the same notice.
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Finally, the court finds merit with BCC’s objections to Plaintiffs’ statements that

22 the “court authorized the notice” and that the email “is not a solicitation from a lawyer.”
ORDER- 16

1 Although the first statement is technically accurate because the court will authorize email
2 notice, the second statement is at least confusing in that Plaintiffs’ counsel will send the
3 email. Further, the court finds that the combined statements might lead putative plaintiffs
4 to believe that the court is endorsing the lawsuit rather than serving as a neutral arbiter.
5 The Supreme Court stated in Hoffmann-La Roche that “in exercising the discretionary
6 authority to oversee the notice-giving process, courts must be scrupulous to respect
7 judicial neutrality.” 493 U.S. at 174. “To that end, trial courts must take care to avoid
8 even the appearance of judicial endorsement of the merits of the action.” Id. Notice has
9 the “purpose of providing [potential plaintiffs] with a neutral discussion of the nature of,
10 and their rights in, these consolidated actions.” Monroe v. United Air Lines, Inc., 90
11 F.R.D. 638, 640 (D.C. Ill. 1981).
12

BCC argues that if an email notification is sent at all, it should be modified as

13 follows:
14
15
16
17
18

A collective action lawsuit has been initiated in Washington State. You
may be able to join the lawsuit if you worked as a patient care consultant or
traveling patient care consultant for Body Contour Centers, d/b/a Sono
Bello, after February 10, 2013, at any of the following locations: Bellevue
and Tacoma, Washington; Beverly Hills, Sacramento, and San Diego,
California; Chicago, Illinois; Cincinnati and Cleveland, Ohio; Edina,
Minnesota; Greenwood, Colorado; Houston, Texas; Overland Park, Kansas;
Portland, Oregon; Salt Lake City, Utah; Scottsdale, Arizona; and St. Louis,
Missouri. To learn more about this lawsuit please visit www.nka.com/[text
of hyperlink].

19
(Resp. at 11.) The court finds that BCC’s proposed email notification strikes a more
20
neutral chord with respect to the litigation than Plaintiffs’ proposal. Nevertheless, the
21
court modifies the first sentence of Defendants’ proposed email notice to read: “A
22
ORDER- 17

1 collective action lawsuit has been initiated in federal court in the Western District of
2 Washington.” 9
3

Based on the foregoing analysis, the court grants in part and denies in part

4 Plaintiffs’ motion for email notification to putative members of the collective. The court
5 authorizes Plaintiffs to send an email notification to putative plaintiffs or members of the
6 collective, but in the form proposed by BCC with the court’s modification to the first
7 sentence of BCC’s proposed form as indicated above.
8

D. Posting Notice at BCC Facilities

9

Plaintiffs also move for authorization to post notice of the suit in the lunch or

10 break rooms at BCC facilities. (Mem. at 13; Reply at 3-4.) BCC objects to this form of
11 notice as potentially disruptive and prejudicial. (Resp. at 11.) BCC asserts that such
12 notice will “serve[] only to diminish the Company in the eyes of other workers before the
13 Company has had a chance to vindicate itself.” (Id.) BCC points out that each of its
14 facilities is also staffed by medical personal who BCC does not employ and other
15 employees who are not putative members of the collective. (Id.) Indeed, BCC identifies
16 that only one of any given location’s employees is a patient care consultant. (Id.) Thus,
17 posting at BCC’s facilities will do little to further actual notice to potential plaintiffs
18 while creating potential workplace dissention or disruption. (See id.) In these narrow
19
9

Although the Western District of Washington is located in Washington State, BCC’s
proposed statement that a “lawsuit has been initiated in Washington State” may lead putative
21 plaintiffs or members of the collective to believe that Plaintiff initiated the lawsuit in state rather
than federal court. The court’s modification provides accuracy and clarity with respect to the
location of the suit.

20

22

ORDER- 18

1 factual circumstances, where only one employee at each site is a potential member of the
2 collective, the court agrees that the potential for prejudice to BCC outweighs any minimal
3 benefit with respect to notice—particularly where the court has already approved more
4 targeted notice through direct mailings and email. Accordingly the court denies
5 Plaintiffs’ motion for authorization to post notice of this lawsuit at BCC’s facilities.
6

E. Tolling of the Statute of Limitations

7

The statute of limitations for collective actions under the FLSA is two to three

8 years depending on whether the violation is determined to be “willful.” 29 U.S.C.
9 § 255(a). 10 Unlike class actions pursuant to Federal Rule of Civil Procedure 23, the
10 statute of limitations in FLSA collective actions continues to run on each individual’s
11 claim until the individual files a consent form with the court to join the action as an opt-in
12 plaintiff. Grayson, 79 F.3d at 1106 n.38; Senne, 2015 WL 6152476, at *16 (noting that
13 the filing of a representative action does not toll the limitations period for putative class
14 members who are not named plaintiffs until they file an opt-in form consenting to
15 joinder). Accordingly, Plaintiffs request that the court toll the statute of limitations “from
16 the date Plaintiffs filed this motion until 60 days after notice is mailed to putative
17 collective members.” (Mem. at 16.) Plaintiffs ask the court to toll the statute of
18 limitations in order to “ensure Plaintiffs’ claims are not prejudiced due to unforeseen
19 delays.” (Id.) Plaintiffs cite only foreign authority in support of their request. (Id.)
20
21
10

22 ¶ 22.)

Plaintiffs allege that BCC’s failure to pay them overtime wages was willful. (Compl.

ORDER- 19

1

Defendants argue that absent any basis in law or equity to deviate from the

2 limitations period set forth in the FLSA, the court should deny Plaintiffs’ request. (Resp.
3 at 6-9.) The court agrees. In the Ninth Circuit, a statute of limitations may be equitably
4 tolled when (1) the plaintiff is prevented from asserting a claim by the defendant’s
5 wrongful conduct or (2) extraordinary circumstances beyond the plaintiff’s control made
6 it impossible to file a claim on time. Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir.
7 1999) (citing Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996)).
8 Plaintiffs never identify any specific prejudice or delays that have occurred. Plaintiffs
9 present no evidence that any potential plaintiff’s right to opt in or file his or her own suit
10 for an alleged FLSA violation has been abridged in any way that would warrant extension
11 of the legislated two- or three-year limitations period. Indeed, Plaintiffs fail to respond to
12 BCC’s arguments concerning the statute of limitations in their reply memorandum. (See
13 generally Reply.) The court concludes that Plaintiffs have failed to meet their burden of
14 establishing a basis for equitable tolling of the FLSA limitations period. The court,
15 therefore, denies this portion of Plaintiffs’ motion.
16

IV. CONCLUSION

17

Based on the foregoing analysis, the court GRANTS in part and DENIES in part

18 Plaintiffs’ motion (Dkt. # 20). The court ORDERS as follows:
19

1. The court conditionally certifies the following FLSA collective:

20

All individuals who worked as patient care consultants, traveling patient
care consultants, patient sales consultants (or other similar job titles), for
Defendant Body Contour Centers, LLC d/b/a Sono Bello at any time from
February 10, 2013, at any of the following locations:
Bellevue,
Washington; Tacoma, Washington; Beverly Hills, California; Sacramento,

21
22

ORDER- 20

1
2

California; San Diego, California; Chicago, Illinois; Cincinnati, Ohio;
Cleveland, Ohio; Edina, Minnesota; Greenwood, Colorado; Houston,
Texas; Overland Park, Kansas; Portland, Oregon; Salt Lake City, Utah;
Scottsdale, Arizona; and St. Louis, Missouri.

3
2. BCC shall provide Plaintiffs with the identification and contact information
4
for all putative plaintiffs or members of the collective action as defined above
5
in electronic format within 20 days of the date of this order.
6
3. The court authorizes Plaintiffs to mail notices and consent forms to all putative
7
plaintiffs or members of the collective, except the notices and consent forms
8
shall be modified as directed above to fully comply with this order.
9
4. The court authorizes Plaintiffs to mail reminder letters on or about the forty10
fifth day of the notice period to those putative plaintiffs or members of the
11
collective who have not opted in to the lawsuit, except that the reminder letters
12
shall be modified as directed above to fully comply with this order.
13
5. The court authorizes Plaintiffs to send email notifications to putative plaintiffs
14
or members of the collective, except that the emails shall be modified as
15
directed above to fully comply with this order.
16
Dated this 8th day of July, 2016.
17
18
19

A

20

JAMES L. ROBART
United States District Judge

21
22
ORDER- 21