Byard et al v. Verizon West Virginia, Inc. et al

Filing 185

MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]. GRANTS IN PART 105 the plaintiffs motion for conditional certification and implementation of court-facilitated notice plan. Signed by District Judge Irene M. Keeley on 10/24/2012. (Copy counsel of record via CM/ECF)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CHARLES R. BYARD, ET AL.,
Plaintiffs,
v.

//

CIVIL ACTION NO. 1:11CV132
(Judge Keeley)

VERIZON WEST VIRGINIA, INC.,
ET AL.,
Defendants.

MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
Before the Court is the plaintiffs’ motion for conditional
certification of a collective action and the implementation of a
court-facilitated notice plan (dkt. no. 105). For the reasons
discussed below, the plaintiffs’ motion is

GRANTED IN PART on the

terms set forth in this Order.
I.
This is an action under the Fair Labor Standards Act (“FLSA”),
29 U.S.C. §§ 201 et seq. The plaintiffs, and the class they propose
to represent, are current and former employees of Verizon West
Virginia Inc., Frontier West Virginia Inc., and Verizon Services
Corp. (collectively “the defendants”) working in customer service
positions at the call centers located in Clarksburg and Charleston,
West Virginia. The named plaintiffs currently work or previously
worked as Consultants, tasked with taking incoming calls from
customers, answering customer service related inquiries, and making

BYARD, ET AL. v. VERIZON WV, ET AL.

1:11CV132

MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
sales.

They

allege

that

the

defendants

regularly

failed

to

compensate them for time worked in excess of forty (40) hours per
week in violation of the FLSA.
The

plaintiffs

specifically

allege

that

the

defendants

required them to engage in certain “preliminary and post-liminary”
work activities without compensation. These activities include
booting up and logging into the computer system, opening software
applications, reading daily company e-mails and intranet messages,
and setting up “call backs” and performing other “follow up” work
for

customers.

In

addition,

the

plaintiffs

claim

that

the

defendants’ policy of “rounding” their compensable time to the
nearest quarter of an hour uniformly benefits the defendants up to
fourteen (14) minutes per day.
On July 3, 2012, the plaintiffs filed a motion for conditional
certification of a collective action and the implementation of a
court-facilitated notice plan. (Dkt. No. 105). The matter has now
been fully briefed and is ripe for review.
II.
Under the FLSA, employees may maintain a collective action on
behalf of themselves and “other employees similarly situated.” 29
U.S.C. § 216(b). Putative plaintiffs who wish to join an FLSA

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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
collective action are required to “opt in” by filing a written
consent form with the Court. Id. Certification of a collective
action is appropriate where the class members (1) are “similarly
situated” and (2) opt-in to the pending action. Romero v. Mountaire
Farms, Inc., 796 F.Supp.2d 700, 705 (E.D.N.C. 2011); see also Felix
de Asencio v. Tyson Foods, Inc., 130 F.Supp.2d 660, 662 (E.D. Pa.
2001) (“The only two requirements . . . under the FLSA are that
class members be similarly situated and that each member file a
consent to joining the action.” (citation omitted)).
District

courts

generally

take

a

two-step

approach

to

certification of FLSA collective actions. Cleary v. Tren Services
Inc., No. 2:11–123, 2012 WL 1189909, at *3 (S.D. W. Va. Apr. 9,
2012); see

also

Nolan

v.

Reliant

Equity

Investors,

LLC, No.

3:08–62, 2009 WL 2461008, at *7 (N.D. W. Va. Aug. 10, 2009)
(collecting cases). The “notice” or
stage comes

first.

proceedings,

before

1189909,

*3.

at

This

stage

discovery

Accordingly,

“conditional certification”

typically
is

occurs

completed.

“the

Court

early

Cleary,

need

only

in

the

2012

WL

reach

a

preliminary determination that potential plaintiffs are ‘similarly
situated.’”

Patton

v.

Thomson

Corp.,

364

F.Supp.2d

263,

267

(E.D.N.Y. 2005) (citations omitted). If the court finds that the
plaintiffs have cleared this “low bar,” Westfall v. Kendle Intern,
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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
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CPU, LLC, No. 1:05-00118, 2007 WL 486606, at *9 (N.D. W. Va. Feb.
15,

2007),

appropriate,

it

will

conditionally

“authorize[]

certify

plaintiffs’

the

counsel

class
to

and,

provide

if
the

putative class members with notice of the lawsuit and their right
to opt-in.” Romero, 796 F.Supp.2d at 705 (citing Hipp v. Liberty
Nat. Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001)).
The second stage of the inquiry occurs if the defendant moves
to

“decertify”

the

class,

which

generally

takes

place

after

discovery is completed and the matter is ready for trial. Cleary,
2012 WL 1189909, at *3; see also Nolan, 2009 WL 2461008, at *7. “At
that point, the court makes a factual determination as to whether
the class is truly ‘similarly situated.’” Purdham v. Fairfax Cty.
Pub. Schools, 629 F.Supp.2d 544, 547 (E.D. Va. 2009) (citing Parker
v. Rowland Express, Inc., 492 F.Supp.2d 1159, 1164 (D. Minn.
2007)). As the court typically has “much more information on which
to base its decision” at this stage, Hipp v. Liberty Nat’l Life
Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001) (citation omitted),
it “applies a heightened, fact specific standard to determine
whether the proposed class members are similarly situated.” Cleary,
2012 WL 1189909, at *3 (citations omitted).

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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
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III.
Here, the plaintiffs have moved for conditional certification
of

a

collective

action.

The

defendants

do

not

dispute

that

conditional certification is appropriate under 29 U.S.C. § 216(b);
however,

they

request

that

the

Court

narrow

the

plaintiffs’

proposed class.
A.
The

pending

motion

concerns

only

the first

step

of

the

certification process. At this stage, the plaintiffs bear the
burden of demonstrating “the existence of a putative class of
‘similarly situated’ persons.” Purdham, 629 F.Supp.2d at 548.
Plaintiffs

are

similarly

situated

to

a

proposed

class

when,

collectively, they were victims of “a single decision, policy, or
plan that violated the law.” Nolan, 2009 WL 2461008 at *7 (quoting
Reeves v. Alliant Techsystems, Inc., 77 F.Supp.2d 242, 247 (D.R.I.
1999)); see also De Luna–Guerrero v. North Carolina Grower’s Ass’n,
Inc., 338 F.Supp.2d 649, 654 (E.D.N.C. 2004) (“plaintiffs must
raise

a

similar

legal

issue

as

to

coverage,

exemption,

or

nonpayment or minimum wages or overtime arising from at least a
manageably similar factual setting with respect to their job
requirements and pay provisions” (citation omitted)). In other

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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
words, the named plaintiffs must demonstrate some sort of “factual
nexus” that connects their claims to the other putative plaintiffs
“as victims of an unlawful practice.” Sharpe v. APAC Customer
Services, Inc., No. 09–cv–329, 2010 WL 135168, at *4 (W.D. Wis.
Jan. 11, 2010). The situations of the named plaintiffs and the
putative class “need not be identical.” De Luna-Guerrero, 338
F.Supp.2d at 654 (citation omitted).
The plaintiffs’ burden at this stage has been described as
“minimal,” Lynch v. United Servs. Auto. Ass’n, 491 F.Supp.2d 357,
367–68 (S.D.N.Y. 2007), and “lenient.” Yeibyo v. E–Park of DC,
Inc., et al., No. 2007-1919, 2008 WL 182502, at *7 (D. Md. Jan. 18,
2008). District courts in this Circuit have found conditional
certification appropriate where plaintiffs put forth at least a
“modest factual showing” that the members of the putative class
were victims of a common policy or practice that violated the FLSA.
Westfall, 2007 WL 486606, at *8 (citation omitted); see also
Bernard v. Household Int’l, Inc., 231 F.Supp.2d 433, 435 (E.D. Va.
2002) (“Mere allegations will not suffice; some factual evidence is
necessary.”). “This evidence need not, however, enable the court to
determine conclusively whether a class of ‘similarly situated’
plaintiffs exists.” Mitchel v. Crosby Corp., No. DKC 10–2349, 2012
WL 4005535, at *3 (D. Md. Sept. 10, 2012). Rather, plaintiffs
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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
seeking

conditional

certification

need

only

submit

evidence

establishing “a colorable basis for their claim that a class of
‘similarly situated’ plaintiffs exist[s].” Faust v. Comcast Cable
Communications Management, LLC, No. WMN-10-2336, 2011 WL 5244421,
at *2 (D. Md. Nov. 1, 2011) (quoting Severtson v. Phillips Beverage
Co., 137 F.R.D. 264, 266 (D. Minn. 1991)).
B.
The plaintiffs seek to conditionally certify a collective
action consisting of “all individuals who have worked over 40 hours
in any week during the past 3 years as Customer Service Call Center
Employees at Defendants’ call centers in Clarksburg or Charleston,
West Virginia, and who have not been paid for all time worked.”
(Dkt. No. 106 at 24). “Customer Service Call Center Employees” are
defined as “all current and former ‘Consultants’ or ‘Customer
Service Representatives’ and those with similar titles . . .
performing customer service work by telephone.” (Dkt. No. 106 at
1).
In their motion for conditional certification, the plaintiffs
offered twenty-two affidavits: six from the named plaintiffs, and
sixteen from the opt-in class members. (Dkt. No. 105-1 at 1-133).
All of the affidavits were penned by self-described “Customer

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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
Service

Representative[s],”

twenty-one

of

whom

worked

in

the

Clarksburg call center and one of whom worked in the Charleston
call center. Id. These declarations do not vary in any significant
respect, and they uniformly support the allegations made in the
complaint. Id. For example, each affiant states that “I worked over
40 hours in a week and did not get paid for certain time worked,
including time spent off-the-clock performing preliminary and postliminary work activities and time rounded down under Verizon’s
policies, practices, and procedures as discussed below.” (Dkt. No.
105-1 at 3).
The declarants go on to describe their uncompensated pre- and
post-shift activities, which include booting up or shutting down
computers,

opening

or

closing numerous

software

applications,

reading daily company e-mails and intranet messages, setting up
“call backs,” and completing other “follow up” work related to
customer service. Id. at 3-4. They each estimate that, on an
average day, they “performed at least 30 to 40 minutes of unpaid
work before the start of [their] shift and after [their] shift
ended.” Id. at 5. The declarants also state that they have personal
knowledge, through observation, that other hourly employees at the
facility performed the same off-the-clock work. Id.

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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
In regard to the defendants’ allegedly unlawful rounding
policy, the affiants each state that they were clocked in when
their telephones were “coded to take incoming calls” and were
clocked out when they signed out of the telephone system. Id. They
were “prohibited from signing in more than 7 minutes early” or
“more than 3 minutes late.” Id. at 6. As such, the declarants
allege that the defendants’ policy of rounding compensable time to
the nearest quarter-hour uniformly benefitted the company up to
fourteen (14) minutes per day. Id. Again, each affiant states that
they have personal knowledge that their co-workers were subject to
the same rounding policy. Id.
The

defendants

acknowledge

that

these

affidavits

are

sufficient to support the conditional certification of a collective
action. They argue, however, that the plaintiffs’ proposed class
definition

is

defendants,

both

the

vague

phrase

and

unsupported.

“Customer

Service

According

to

the

Representative”

is

particularly confusing because it is “not a job description at
either Verizon or Frontier, where hourly employees’ job titles have
been contractually-established [sic] throughout the class period by
a collective bargaining agreement (CBA).” (Dkt. No. 127 at 4).
Rather, each

affiant

of

record

was

officially

employed

as a

“Consultant,” tasked solely with “handling inbound,” as opposed to
9

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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
outbound, “customer service calls.” Id. at 4 (emphasis added). As
such,

the

defendants

argue,

“the

only

employees

who

could

potentially be similarly situated to Plaintiffs are Consultants who
handle inbound customer service calls by phone.” Id. at 5. The
defendants thus propose a class definition of “individuals employed
by Verizon West Virginia Inc., Frontier West Virginia Inc., or
Verizon

Services

Corp.

at

a

call

center

in

Clarksburg

or

Charleston, West Virginia as a Consultant handling inbound customer
service telephone calls within the last three years.” (Dkt. No.
127-1 at 2).
In their reply, the plaintiffs strenuously object to the
defendants’ proposed class and maintain that the job titles in this
case are largely irrelevant, as “Defendants’ payroll policies,
practices and procedures not Plaintiff’s job titles are at issue.”
(Dkt. No. 136 at 2 (emphasis in original)). In support, they offer
one declaration from a new affiant, Georgianna F. Kintz (“Kintz”),
and two supplemental declarations from affiants previously included
within the original twenty-two, Jeff Combs (“Combs”) and Barbara S.
Cutlip (“Cutlip”).1
1

In the interest of fully evaluating the issues presented, the
Court denied the defendants’ motion to strike these new affidavits
and instead permitted the defendants to file a sur-reply. (Dkt. No.
178).
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Kintz states that she had worked in the Clarksburg call center
as both a “Consultant,” taking incoming calls, and as a “Customer
Service Clerk,” making outgoing calls, during the statutory period.
(Dkt. No. 136-2 at 1-2). She maintains that her duties in both
positions

were the

same,

“except

that as

a

Customer

Service

Clerk[,] instead of taking incoming calls[,] I made outgoing calls
to customers whose issues remained unresolved after speaking with
a Consultant.” Id. at 2. She avers that, “regardless of her
position,” she had to engage in the same types of pre- and postshift work as the original twenty-two affiants, which resulted in
her performing “at least 30 minutes” of unpaid work on an average
day. Id. at 3-5. Her allegations concerning the rounding policy are
likewise identical, except that she alleges she was clocked in when
the telephone was coded to “take incoming calls or make outgoing
calls.” Id. at 2 (emphasis added).
The supplemental affidavits of Combs, from the Charleston call
center, and Cutlip, from the Clarksburg call center, make similar
allegations concerning the job title of “Maintenance Administrator”
and the assignment of “Urgent Care,” both of which appear to
involve making outgoing customer service calls. (Dkt. No. 136-3 at
1-2); (Dkt. No. 136-4 at 1-3); (Dkt. No. 181 at 4). The plaintiffs
further offer several generic descriptions of jobs titles within
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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
the CBA in an attempt “to respond generally to the defendants’
argument that a collective class should be limited to a single job
title.” (Dkt. No. 142 at 5).
C.
Under the lenient standard applicable at this first stage of
the

class

certification

process,

the

Court

finds

that

the

plaintiffs’ evidence is sufficient to demonstrate that they are
similarly situated to a putative class of Verizon employees who
perform customer service work by telephone, regardless of whether
those

employees

take

incoming

or

make

outgoing

calls.

The

plaintiffs need only make a “modest” showing at the conditional
certification stage, Comer v. Wal-Mart Stores, Inc., 454 F.3d 544,
547 (6th Cir. 2006), and they are not required to prove that the
potential class members have identical job titles or positions.
Jirak v. Abbot Labs., Inc., 566 F.Supp.2d 845, 848–49 (N.D. Ill.
2008); see also Comer, 454 F.3d at 546-47 (“[t]he plaintiff must
show only that his position is similar, not identical, to the
positions held by the putative class members.”). Courts routinely
find that plaintiffs are similarly situated despite “distinctions
in their job titles, functions, or pay.” Jirak, 566 F.Supp2d at 849
(citations omitted); see also Delgado v. Ortho-McNeil, No. 07-263,

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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
2007 WL 2847238, at *3 (C.D. Cal. Aug. 6, 2007) (“[W]hile the jobs
of the various sales representatives are not identical, they bear
sufficient similarity to warrant conditional certification for the
purpose of distributing notice.”); Garza v. CTA, No. 00-438, 2001
WL 503036, at *3 (N.D. Ill. May 8, 2001) (“That the plaintiffs and
other potential plaintiffs may have different jobs . . . does not
mean that they are not operating under the same policies that
allegedly entitle them to overtime pay.”).
Here, the plaintiffs have presented at least a “modest factual
showing,” Westfall, 2007 WL 486606, at *8 (citation omitted), that
they and the putative plaintiffs, whether they took incoming or
made outgoing customer service calls, were “similarly situated”
victims of a common policy or practice that potentially violated
the FLSA: (1) the defendants required the plaintiffs to engage in
certain preliminary and post-liminary customer service work and
computer-related functions without pay; and (2) the plaintiffs were
systematically disadvantaged by the defendants’ “rounding” policy.
See generally O’Brien v. Ed Donnelly Enter., Inc., 575 F.3d 567,
583 (6th Cir. 2009) (plaintiffs are similarly situated where
“claims [are] unified by common theories of defendants’ statutory
violations, even if the proofs of those theories are inevitably
individualized and distinct.”). As the plaintiffs point out, many
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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
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district courts have granted conditional certification to call
center employees alleging similar “off-the-clock” and “rounding”
FLSA violations.2
The defendants attempt to highlight the dissimilarities of the
proposed

class

affiants

and

through

attack

the

competency

counter-affidavits

and

of

the

other

plaintiffs’
evidentiary

submissions. At this early stage, however, “[t]he Court does not
resolve factual disputes, decide substantive issues going to the
ultimate merits, or make credibility determinations.” Fisher v.
Michigan Bell Telephone Co., 665 F.Supp.2d 819, 825 (E.D. Mich.
2009) (quoting Brasfield v. Source Broadband Servs., LLC, 257
F.R.D. 641, 642 (W.D. Tenn. 2009)). The “disparate factual and
employment

settings

of

the

individual

plaintiffs

should

be

considered at the second stage of analysis.” White v. MPW Indus.
Servs., Inc., 236 F.R.D. 363,

373 (E.D. Tenn. 2006) (collecting

2

See O’Donnell v. Sw. Bell Yellow Pages, Inc., No. 4:11-cv-1107,
2012 WL 1802336 (E.D. Mo. May 17, 2012); Robinson v. Ryla
Teleservices, Inc., No. 11-131-KD-C, 2011 WL 6667338 (S.D. Ala
Dec. 21, 2011); McClean v. Health Sys., Inc., No. 11-03037, 2011 WL
6153091 (W.D. Mo. Dec. 12, 2011); Garrett v. Sitel Operating Corp.,
No. 10-2900, 2011 WL 5827240 (W.D. Tenn. Nov. 18, 2011); Ware v. TMobile USA, 828 F.Supp.2d 948 (M.D. Tenn 2011); McCray v. Cellco
P’Ship, No. 1:10-2821, 2011 WL 2893061 (N.D. Ga. Apr. 8, 2011);
Burch v. Qwest Comm’ns Int’l, 500 F.Supp 2d 1181 (D. Minn 2007);
Southerland Global Services, Inc., 487 F.Supp.2d 344, 347 (W.D.N.Y.
2007); Clarke v. Convergys Customer Mgmt Grp. Inc., 370 F.Supp.2d
601 (S.D. Tex. 2005).
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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
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cases); see also Bishop v. AT & T Corp., 256 F.R.D. 503, 509 (W.D.
Penn. 2009) (“Any dissimilarities in job functions which would
exclude a class member will be reevaluated at stage two when
discovery

is

complete.”).

Any

further

arguments

concerning

differences within the class are “more appropriately decided at
step two, after it is known who the class will consist of, and
after some of the factual issues can be fleshed out in discovery.”
Jirak, 566 F.Supp.2d at 848 (citation omitted).
Accordingly, for the reasons discussed, the Court FINDS that
the

plaintiffs

have

a

colorable

basis

for

their

claims

of

substantial similarity and will allow them to proceed collectively
through discovery. See generally Realite v. Ark Rests. Corp., 7
F.Supp.2d 303, 308 (S.D.N.Y. 1998) (underscoring that the court “is
certifying the proposed only for notice and discovery purposes” and
is “not holding that at this time that all members of the proposed
class who will be sent notices are, in fact, similarly situated to
plaintiffs”). The Court thus CONDITIONALLY CERTIFIES the following
class of opt-in plaintiffs who are entitled to notice:
All current and former hourly customer service employees
of Verizon West Virginia Inc., Frontier West Virginia
Inc., or Verizon Services Corp., who worked over forty
(40) hours a week at a call center in Clarksburg or
Charleston, West Virginia within the past three (3) years

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handling inbound customer service telephone calls or
making outbound customer service telephone calls.

IV.
Having

concluded

that

conditional

certification

is

appropriate, the Court now turns to the plaintiffs’ request for
court-facilitated notice to the opt-in class.
A.
Courts “have discretion, in appropriate cases, to implement 29
U.S.C.

§

216(b)

.

.

.

by

facilitating

notice

to

potential

plaintiffs” of the pendency of the collective action. Hoffmann–La
Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989); see also Shaffer
v. Farm Fresh, Inc., 966 F.2d 142, 147 (4th Cir. 1992). The notice
must be “accurate and timely,” so that potential plaintiffs “can
make informed decisions about whether to participate.” Hoffmann–La
Roche, 493 U.S. at 170. The Court has “broad discretion” regarding
the “details” of the notice sent to potential opt-in plaintiffs.
Lee v. ABC Carpet & Home, 236 F.R.D. 193, 202 (S.D.N.Y.2006)
(citing Hoffmann–La Roche, 493 U.S. at 171).
B.
Contemporaneously

with

their

motion

for

conditional

certification, the plaintiffs submitted a proposed notice and opt-

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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
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in consent form to be sent to the putative class. (Dkt. No. 105-2).
The defendants subsequently filed objections to the plaintiffs’
proposal and submitted their own suggested forms. (Dkt. No. 127-1).
The plaintiffs, in reply, submitted a revised notice which attempts
to address some of the defendants’ concerns. (Dkt. No. 136-1).3
Nevertheless, the following issues remain in dispute: (1) the
description of the class; (2) the length of the opt-in period;
(3) the propriety of a reminder notice; (4) the description of the
lawsuit;

(5)

the

description

of

the

prospective

plaintiffs’

potential obligations; (6) the description of the fee arrangement
for the plaintiffs’ counsel; (7) the use of the full case caption;
(8) the propriety of allowing plaintiffs’ counsel to contact
putative

plaintiffs;

and

(9)

the

amount

of

information

the

defendants should turn over in order to facilitate notice. The
Court will address each of these issues in turn.
i. Description of the Class
The Court agrees with the defendants that the class definition
in the proposed notice is both overbroad and confusing.4

It thus

3

Unless otherwise stated, all references in this Opinion to the
plaintiffs’ proposed notice refer to the revised proposed notice.
(Dkt. No. 136-1).
4

The current notice is addressed to “All current and former Call
Center Employees and Customer Service Representatives employed by
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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
ORDERS the plaintiffs to modify the notice to make it consistent
with the Court’s findings as to the appropriate definition of the
proposed class. In particular, the notice should remove any proper
nouns, i.e. “Customer Service Representative” and “Call Center
Employee,” unless the position described is either an actual job
title as recognized in the CBA or elsewhere defined in the notice.
To the extent the plaintiffs believe that reference to actual job
titles would help clarify the notice for the putative class, they
should use “Consultant” and/or “Customer Service Clerk.” The Court
thus SUSTAINS IN PART the defendants’ objection.
ii. Length of the Opt-In Period
The defendants propose a forty-five day notice period during
which potential class members may opt-in to the collective action.
The plaintiffs, “as a compromise,” abandoned their initial request
for a ninety day opt-in period and stated in their reply brief that
they were willing to compromise at sixty days. (Dkt. No. 136 at
12). As the defendants correctly argued that “courts in this
circuit routinely find that an opt-in period between 30-60 days is

Verizon West Virginia Inc., Frontier West Virginia Inc., or Verizon
Sercives Corp., who have worked at their Clarksburg or Charleston,
West Virginia call centers during any time from [3 years back from
the date of the order].” (Dkt. No. 136-1 at 1).
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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
appropriate,” (dkt. no. 127 at 8), the Court finds that an opt-in
period of sixty days from the date of mailing sufficiently balances
both parties’ concerns and is reasonable under the circumstances of
this case. See, e.g., Steinberg v. TQ Logistics, Inc., No. 10-cv2507, 2011 WL 1335191, at *6 (D.S.C. Apr. 7, 2011). The defendants’
objection is therefore OVERRULED AS MOOT.
iii. Reminder Notice
The plaintiffs propose sending out a reminder letter or second
notice “on or about the 30th day of [the] 60-day notice period” to
remind potential class members that their deadline to opt-in is
coming due. (Dkt. No. 136 at 13). The defendants contend that this
reminder

notice

will

inappropriately

impress

upon

potential

plaintiffs that the Court is encouraging them to join the lawsuit,
unnecessarily “stir up litigation,” and violate the West Virginia
Rule

of

Professional

Conduct

against

soliciting

professional

employment. (Dkt. No. 127 at 10-13).
While the defendants’ strained interpretation of the Rules of
Professional Conduct can be rejected out of hand, it is nonetheless
true that numerous district courts around the country have found
that reminder notices have a tendency to both stir up litigation,
see, e.g., Calderon v. GEICO Gen. Ins. Co., No. 10-1958, 2011 WL

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1:11CV132

MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
98197, at *3 (D. Md. Jan. 12, 2011), and inappropriately encourage
putative plaintiffs

to

join

the

suit.

See,

e.g.,

Knispel

v.

Chrysler Group, LLC, No. 11-11886, 2012 WL 553722, at *8 (E.D.
Mich. Feb. 21, 2012); Smallwood v. Illinois Bell Tel. Co., 710
F.Supp.2d 746, 753-54 (N.D. Ill. 2010). The plaintiffs have cited
no persuasive authority to the contrary.
Here, the notice period is only sixty days. As such, the Court
agrees with the defendants that a reminder notice in this case is
both “unnecessary” and potentially improper. Witteman v. Wisconsin
Bell, Inc., No. 09-440, 2010 WL 446033, at *3 (W.D. Wis. Feb. 2,
2010); see also Barnwell v. Corr. Corp. of America, No. 08-2151,
2008 WL 5157476, at *6 (D. Kan. Dec. 9, 2008) (“The court believes
that the notice itself is adequate to advise potential class
members of their right to opt-in as plaintiffs in this case.”).
“The purpose of notice is simply to inform potential class members
of their rights. Once they receive that information, it is their
responsibility to act as they see fit.” Witteman, 2010 WL 446033,
at *3. It thus SUSTAINS the defendants’ objection and DENIES the
plaintiffs’ request to sent a reminder notice.

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1:11CV132

MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
iv. Description of the Lawsuit
The defendants argue that the plaintiffs’ proposed notice
fails to give “equal thrift” to both parties’ positions. (Dkt. No.
127

at

14).

Specifically,

the

defendants

wish

to

include

descriptions of “sample[s]” of their legal defenses in order to
“balance” the text of the notice. Id. The defendants cite no
authority in support of the proposition that, as they appear to
suggest, a notice must devote an equal word count to the positions
of each party in the lawsuit.
In the proposed notice, the description of the plaintiffs’
claims is brief and devoted almost exclusively to a simple factual
recitation of the various work activities for which they seek
compensation. In light of this short, fact-based listing, the
statement in the plaintiffs’ proposed notice that “Verizon and
Frontier deny the allegations and maintain these individuals were
properly paid,” (dkt. no. 136-1 at 2), is “sufficient to put
potential

plaintiffs

on

notice

that

Defendants

deny

the

allegations.” Moore v. Eagle Sanitation, Inc., 276 F.R.D. 54, 60
(E.D.N.Y.

2011)

(citation

omitted).

The

defendants’

proposed

inclusion of their legal arguments is unnecessary and “will likely
confuse potential opt-in plaintiffs.” Id.; see generally Nolan,

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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
3:08CV62, (Dkt. No. 115), (N.D. W. Va. Aug. 31, 2009) (approving
notice which stated only that “Defendants deny that they did
anything wrong.”); Delaney v. Geisha NYC LLC, 261 F.R.D. 55, 59
(S.D.N.Y.

2009)

(refusing

to

include

specific

information

concerning defenses where proposed notice stated that defendant
“denies that they violated the Fair Labor Standards Act”). As such,
the Court OVERRULES the defendants’ objection to the description of
the suit.
v. Potential Obligations Associated with Joining the Suit
The defendants object that the proposed notice does not inform
participants that (1) opt-in plaintiffs might be required to engage
in the parties’ discovery efforts and testify at trial, and (2)
those who opt in could pay a proportionate share of defendants’
costs to defend the case. The plaintiffs contend that advising the
prospective

plaintiffs

of

their

potential

obligations

may

be

“dissuasive.” (Dkt. No. 136 at 9).
The Court agrees that the notice should be amended to inform
prospective members of the prospect of providing deposition and
court testimony and participating in discovery. Courts “routinely
accept[]” text notifying potential plaintiffs “of the possibility
that they will be required to participate in discovery and testify

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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
at trial.” Whitehorn v. Wolfgang’s Steakhouse, Inc. 767 F.Supp.2d
445, 450 (S.D.N.Y. 2011); see also Butler v. DirectSAT USA, LLC, -- F. Supp. 2d

----, 2012 WL 1203980, at *10 (D. Md. Apr. 10,

2012); Pack v. Investools, Inc., No. 2:09–CV–1042, 2011 WL 5325290,
at *4 (D. Utah Nov. 3, 2011). Inasmuch as the overarching purpose
of FLSA notification is to ensure that potential plaintiffs obtain
“accurate and timely notice” in order to “make informed decisions
about whether to participate,” Hoffmann-La Roche, 493 U.S. at 170,
such information “allow[s] potential plaintiffs to make a reasoned
decision about the time they would need to invest in the suit
should they decided to opt-in.”

Heaps v. Safelite Solutions, LLC,

No. 2:10CV729, 2011 WL 1325207, at *8 (S.D. Ohio, Apr. 5, 2011).
Accordingly,
prospective

the

plaintiffs

members

of

must

their

amend

potential

the

notice

discovery

to

inform

and

trial

obligations.
The defendants have proposed a verbose description of these
discovery and trial obligations for inclusion in the proposed
notice. The Court, however, finds it reasonable for the plaintiffs
to add the simpler language adopted by at least two other district
courts: “While the suit is proceeding, you may be required to
provide information, sit for depositions, and testify in court.”

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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
Fisher, 665 F.Supp.2d 819, 829; Russell v. Illinois Bell Tele. Co.,
575 F.Supp.2d 930 (N.D. Ill. 2008).
The defendants’ second argument, that prospective members
should be notified of their potential liability for costs, is a
closer question. The defendants’ proposed notice contains two
separate statements notifying prospective plaintiffs that they may
be responsible for paying the defendants’ undefined “litigation
expenses” or “litigation costs” if they lose the lawsuit. (Dkt. No.
127-1 at 2, 3). Again, the plaintiffs argue that any reference to
costs

would

discourage

potential

plaintiffs

from

joining

the

litigation and should thus be excluded.
The authority on this question is decidedly split. On one
hand, some district courts have found that “[b]eing made aware of
the possibility of being held liable for [defendant’s] costs of
litigation is necessary information for potential plaintiffs to
make an informed decision about whether to opt-in as a plaintiff.”
Heaps, 2011 WL 1325207, at *8 (collecting cases). Other district
courts, however, have found that such language is “unnecessary and
potentially confusing,” Sexton v. Franklin First Fin., Ltd., No.
08–CV–04950, 2009 WL 1706535, at *12 (E.D.N.Y. June 16, 2009),
particularly given the “remote possibility” that costs will be
other than de minimus. Guzman v. VLM, Inc., No. 07–CV–1126, 2007 WL
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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
2994278, at *8 (E.D.N.Y. Oct. 11, 2007); see also id. (such
language “may have an in terrorem effect that is disproportionate
to the actual likelihood that costs . . . will occur in any
significant degree.”).
As one district court has noted, “[a]n award of costs to a
prevailing defendant in an FLSA case is clearly possible and is not
merely theoretical.” Creten–Miller v. Westlake Hardware, Inc., No.
08–2351, 2009 WL 2058734, at *4 (D. Kan. July 15, 2009) (citing
cases that have allowed costs to prevailing defendants in FLSA
cases). The disclosure of this possibility will accordingly serve
the overarching purposes of the notice, i.e., allowing putative
plaintiffs

to

“make

informed

decisions

about

whether

to

participate.” Hoffmann-La Roche, 493 U.S. at 170. There is no need
for undue emphasis on this possibility, however, as suggested by
the defendants’ proposed notice. The Court therefore ORDERS that
the “EFFECT OF JOINING OR NOT JOINING THIS LAWSUIT SECTION” of the
notice shall include the following statement: “If you do not
prevail on your claim, court costs and expenses may possibly be
assessed against you.” See Harris v. Pathways Community Behavioral
Healthcare Inc., No. 10–0789, 2012 WL 1906444, at *4 (W.D. Mo. May
25, 2012) (modifying notice to include statement that “if you do

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1:11CV132

MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
not prevail on your claim, court costs and expenses may possibly be
assessed against you”); Creten–Miller, 2009 WL 2058734, at *4
(same); Garcia v. Elite Labor Serv., Ltd., No. 95-2341, 1996 WL
33500122, at *4 (N.D.Ill. July 11, 1996) (same). The defendants’
objection is thus SUSTAINED IN PART.
vi. Contingency Fee
The defendants further object that the plaintiffs’ counsel
should be required to include their contingency fee percentage in
the notice.5 The plaintiffs did not directly respond to this
argument. Notably, several district courts have agreed with the
defendants and found that “notice of [fee] agreements should be
provided up front” because “the fee structure may impact an opt-in
Plaintiff’s recovery, if any.” Fasanelli v. Heartland Brewery,
Inc., 516 F.Supp.2d 317, 324 (S.D.N.Y. 2007); see also Lineras v.
Inspiration Plumbing LLC, No. 1:10CV324, 2010 WL 4623940, at *2
(E.D. Va. Nov. 3, 2010) (“This Court sees no reason why the

5

To the extent that the defendants also objected that the
plaintiffs’ proposed notice failed to advise potential opt-in
plaintiffs of their right to choose their own counsel, the
plaintiffs included the following language in their revised notice:
“You have the right to obtain legal advice from any attorney of
your own choosing as to the advisability of filing a Plaintiff
consent form, filing a lawsuit on your own or doing nothing.” (Dkt.
No. 136 at 11). The Court finds that this change satisfies the
defendants’ objection and DENIES it AS MOOT.
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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
contingency

fee

percentage

should

not

be

disclosed,

as

that

percentage will better inform potential plaintiffs in their choice
of

whether

to

opt-in.

The

contingency

fee

percentage

should

therefore be added to the notice.”). In accordance with this
authority and in the absence of any argument by the plaintiffs, the
Court holds that the notice shall include a statement informing the
putative class “of any arrangements regarding attorneys fees and
costs that they might be entering,” Fasanelli, 516 F.Supp.2d at
324, including the “contingency fee percentage.” Lineras, 2010 WL
4623940, at *2. The Court therefore SUSTAINS the defendants’
objection.
vii. Case Caption
The defendants object to the plaintiffs’ inclusion of the full
caption of this case on the first page of their proposed notice.
They contend that the caption “risks giving a potential opt-in the
false impression of judicial endorsement of Plaintiff’s position
where none exists.” (Dkt. No. 127 at 18). The plaintiffs argue that
the caption “serves the important purpose of indicating that the
motion is not junk mail.” (Dkt. No. 136 at 6).
Here again, district courts are split. Compare Shipes v.
Amurcon Corp., No. 10-14943, 2012 WL 1720615, at *1 (E.D. Mich. May

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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
16, 2012) (“The case caption does not give the false impression
that the Court endorses the litigation; rather, it serves the
important purpose of indicating that the Notice is not junk mail.”)
with Flores v. Lifeway Foods, Inc., 289 F.Supp.2d 1042, 1047 (N.D.
Ill. 2003) (holding proposed notice with case caption “is likely to
be misunderstood as a representation that the suit probably has
merit.” (citation omitted)).
After a careful review of the relevant authority, the Court
concludes that the case caption does not suggest any judicial bias.
The notice is styled as any other pleading and does not appear to
be a letter or other communication issued directly by the Court.
See, e.g., Jirak, 566 F.Supp.2d at 851 (as long as the entire case
caption is at the top of the first page of the Collective Action
Notice, it is clear that the Notice is a court document and not a
letter

from

the

court).

Moreover,

on

the

first

page,

the

plaintiffs’ proposed notice includes the statement that “THE COURT
HAS MADE NO DECISION IN THIS LAWSUIT ABOUT THE MERITS OF THE
PLAINTIFFS’ CLAIMS OR THE DEFENDANTS’ DEFENSES.” (Dkt. No. 136-1 at
1). This provision serves as a clear indication of the Court’s
neutrality and should “alleviate[]” the defendants’ “concern . . .
about the appearance of judicial bias.” Shipes, 2012 WL 1720615, at

28

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1:11CV132

MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
*1; see also Boyd v. Jupiter Alum. Corp., No. 2:05–227, 2006 WL
1518987, at *6 (N.D. Ind. May 31, 2006) (case caption does not
suggest

judicial

sponsorship

of

plaintiff’s

claims

and

any

prejudice is cured by disclaimer). Accordingly, the Court OVERRULES
the defendants’ objection to the case caption.
viii. Communication with Counsel
Presumably in response to the statement in the notice that
“[y]ou

may

call

Plaintiffs’

Counsel

with

any

questions

or

concerns,” (dkt. no. 136-1 at 3), the defendants ask the Court to
enter

an

order

prohibiting

the

plaintiffs’

counsel

from

“communicating with any putative opt-in plaintiff (1) to whom a
Notice of Pendency of the Lawsuit has been sent, and (2) who has
not filed a Plaintiffs’ Consent Form with the Court, at any time
after the Notice of Pendency of the Lawsuit has been sent . . .
except to answer questions regarding the notice.” (Dkt. No. 127 at
23). The plaintiffs argue that they have not “engaged in any
improper action or inaccurate communication,” and as such the Court
should not limit communications. Barton v. The Pantry, Inc, No.
1:04-748, 2006 WL 2568462, at *2 (M.D.N.C. 2006).
In order for the Court to issue a restraint on communications
with a putative class, it “must be based upon a clear record and

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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
specific findings that reflect a weighing of the need for a
limitation and the potential interference with the rights of the
parties.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 (1981). The
Court will not sanction such a restraint simply based on the
defendants’ unsubstantiated fears that the plaintiffs’ counsel may
overreach. The Court thus DENIES the defendants’ objection.
ix. Information to Facilitate Notice
In their opening brief, the plaintiffs requested that the
defendants be ordered to provide “the names and last known contact
information, including addresses and email addresses, and last four
digits of social security numbers of all persons employed by them
as Customer Service Call Center Employees in West Virginia within
the last 3 years.” (Dkt. No. 106 at 23). After explaining that they
did

not

have

any

of

their

employees’

email

addresses,

the

defendants proposed that they should instead be required to provide
“only the names and mailing addresses” of the putative class “for
notification by first class mail.” (Dkt. No. 127 at 22). They
agreed to provide the last four digits of the social security
numbers only if notices to specific individuals were returned as
undeliverable. Id. As another compromise, the plaintiffs request
the Court to require the defendants to also present the social

30

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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
security

numbers

“on

day

25

following

the

mailing

for

any

individuals who have not submitted a Plaintiff Consent Form by that
time.” (Dkt. No. 136 at 14).
The defendants’ employees clearly have substantial privacy
concerns associated with their social security numbers. See, e.g.,
Calderon v. Geico General Ins. Co., No. 10-1958, 2011 WL 98197, at
*9 (D. Md. Jan. 12, 2011). This Court has previously held that the
plaintiffs must “establish[] a need” for this type of information
before it may be turned over. Ruffin v. Entertainment of the
Eastern Panhandle, No. 3:11–19, 2012 WL 761659, at *6 n.2 (citing
Faust, 2011 WL 5244421, at *6 n. 13). Although the return of the
notice as undeliverable may establish such a need, the simple
failure of a putative plaintiff to respond does not. See generally
Bredbenner v. Liberty Travel, Inc., No. 09–CV–00905, 2009 WL
2391279, at *3 n. 3 (D.N.J. July 31, 2009) (“Courts generally
release social security numbers only after notification via first
class

mail

proves

insufficient.”);

Martinez

v.

Cargill

Meat

Solutions, 265 F.R.D. 490, 500 (D. Neb. Dec. 11, 2009) (declaring
that first class mail would be sufficient because “[t]here is no
evidence personal mailing will be an unreliable means of delivering
notice to the putative plaintiffs”). The Court thus FINDS that the

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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
plaintiffs have not established a need for the social security
numbers

of

the

putative

class

members

and

that

the

other

information requested is sufficient to provide notice to the opt-in
class.
Consequently, the Court ORDERS the defendants to provide,
within ten (10) days from the date of this Order, the names and
last known mailing addresses of the putative class members in
electronic and importable format. The plaintiffs shall immediately
advise the defendants if notice to specific individuals is returned
as undeliverable. Within five (5) days of being so advised, the
defendants shall turn over the last four digits of the employees’
social security numbers. The defendants’ objection is therefore
SUSTAINED.
V.
In conclusion, for the reasons discussed, the Court:
1.

GRANTS IN PART the plaintiffs’ motion for conditional
certification and implementation of court-facilitated
notice plan (dkt. no. 105);

2.

CONDITIONALLY CERTIFIES the plaintiffs’ collective action
of

all

current

and

former

hourly

customer

service

employees of Verizon West Virginia Inc., Frontier West

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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]
Virginia Inc., or Verizon Services Corp., who worked over
forty (40) hours a week at a call center in Clarksburg or
Charleston, West Virginia within the past three (3) years
handling inbound customer service telephone calls or
making outbound customer service telephone calls;
3.

ORDERS that the plaintiffs shall amend their proposed
notice, with the modifications as detailed above, and
submit such notice to the Court for final approval by no
later than October 29, 2012; and

4.

ORDERS that within ten (10) days of the date of this
Order, the defendants shall provide to the plaintiffs the
names and last known mailing addresses of the putative
class members in electronic and importable format.

It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: October 24, 2012.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

33