Summary
applying Hoffmann-La Roche to FLSA context
Summary of this case from Mallory v. Lease Supervisors, LLCOpinion
Civil Action No. 3:01-CV-1182-M
May 21, 2002
MEMORANDUM ORDER AND OPINION
On March 28, 2002, Plaintiff filed a Motion to Allow Nationwide Notification Pursuant to 29 U.S.C. § 216(b). Having considered the Motion, as well as the Response filed thereto, the Court is of the opinion that the Motion should be GRANTED.
The Court notes that Plaintiff filed her Reply four days late, and did not file a Motion for Leave to file the Reply late. Thus, the Court did not consider Plaintiffs Reply. Despite Plaintiffs lateness in filing the Reply, however, the Court determines that Plaintiffs Motion should be GRANTED.
In accordance with the procedural provisions for suit set forth in the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b), which provide for institution of suit "by one or more employees for or in behalf of himself or themselves and other employees similarly situated," Plaintiff's suit complains that Defendants have failed to provide overtime compensation to herself and certain other similarly situated employees not exempt from the FLSA's overtime compensation requirements. District courts have discretion to allow a party asserting FLSA claims on behalf of others to notify potential plaintiffs that they may choose to "opt-in" to the suit. See Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989). In this Motion, Plaintiff requests that the Court exercise its discretion to permit Plaintiffs to notify an opt-in class consisting of all current and former Account Executives, Home Loan Consultants, Loan Officers, and Loan Originators who were employed by Defendants from June 20, 1998 to the present. Plaintiffs Memorandum at 1. Plaintiff argues that the Court should allow Plaintiff to notify these individuals by posting a notice of the suit on an employee bulletin board or other similar device at the employees' workplace, and also by mailing a notice to the home addresses of all current and former employees who occupied one of the above-listed positions anytime since June 20, 1998. Defendants' central contention is that the class of persons Plaintiff wishes to notify are not similarly situated to Plaintiff such that she may act as a representative Plaintiff for them.
Although the Fifth Circuit has not adopted a particular standard to be used in determining whether to allow notification, the prevailing test among the federal courts, originating in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987), consists of the following:
In Mooney v. ARAMCO Servs. Co., 54 F.3d 1207, 1212 (5th Cir. 1995), the Fifth Circuit explicitly declined to adopt a specific approach.
First, the Court must make an initial inquiry into whether the Plaintiff has provided sufficient evidence that similarly situated potential Plaintiffs exist. At this stage, the Court uses a lenient standard to determine whether similarly situated persons exist, and if the Court determines that certification is appropriate, then it usually "conditionally certifies" the class. Second, the Court reexamines the class after notice, time for opting-in, and discovery have taken place. If the Court finds that the class is no longer made up of similarly situated persons, then it may decertify the class. This inquiry is usually conducted upon a motion filed by the Defendant.Hall v. Burke, No. 3:01-CV-2487-H, 2002 WL 413901, at *2 (N.D.Tex. Mar. 11, 2002) (Sanders, Senior J.) (citations omitted). To establish that employees are similarly situated, a plaintiff must show that they are "``similarly situated' with respect to their job requirements and with regard to their pay provisions.' [The] positions need not be identical, but similar." Tucker v. Labor Leasing, Inc., 872 F. Supp. 941, 947 (M.D.Fla. 1994).
The Court concludes that, applying the Lusardi two-step procedure for FLSA opt-in suits, Plaintiff has proffered evidence sufficient for conditional certification of the class, and for the Court to permit Plaintiffs to notify the class members of the pending suit. Although the Court notes Defendants' concerns, the record is, at this early stage in the proceedings, too incomplete for the Court to make a definitive determination as to the similarity of the class members. After the potential opt-in plaintiffs have filed their Notices of Consent, the Court will entertain a motion by Defendants to decertify the class.
Two remaining issues are (a) what type of notice the Court should allow, and (b) whether Account Executives who have binding arbitration agreements with Defendants should be notified. The Court determines that mailing the notice to the potential class members, rather than also posting them at Defendants' offices, is sufficient to provide the potential opt-in plaintiffs with notice of the suit. Therefore, the Court orders Defendants to provide to Plaintiff, by May 31, 2002, a list of the names and last-known addresses (in electronic form) of all current and former Account Executives, Home Loan Consultants, Loan Officers, and Loan Originators who were employed by Defendants from June 20, 1998 forward and were classified as exempt from the provisions of the FLSA Act. By June 14, 2002, Plaintiff, through her counsel, shall send the attached notice and consent form to these individuals. The consent forms must be postmarked by August 23, 2002, and filed with the Court by September 6, 2002.
With respect to the arbitration agreement issue, the Court orders Defendants to divide the above list of sales employees into those who signed arbitration agreements and those who did not sign them. Although the Court permits Plaintiff to send notice of the suit to all of these individuals, regardless of whether they signed arbitration agreements, only those persons who did not sign arbitration agreements may send back their consent form and opt-in to the suit.
SO ORDERED.
IMPORTANT NOTIFICATION TO POTENTIAL CLASS MEMBERS
TO: ALL CURRENT OR FORMER ACCOUNT EXECUTIVES, HOME LOAN CONSULTANTS, LOAN OFFICERS, AND LOAN ORIGINATORS WHO WERE EMPLOYED AT ANY TIME SINCE JUNE 20, 1998 BY COUNTRYWIDE CREDIT INDUSTRIES, INC.; COUNTRYWIDE HOME LOANS, INC.; OR FULL SPECTRUM LENDING, INC. ("COUNTRYWIDE") AND WHO DID NOT ENTER INTO AGREEMENTS REQUIRING ARBITRATION OF OVERTIME COMPENSATION CLAIMS AGAINST COUNTRYWIDE
RE: RIGHT TO OPT-INTO LAWSUIT TO RECOVER UNPAID OVERTIME COMPENSATION
DATE: MAY 16, 2002.
1. PURPOSE OF NOTICE
The purpose of this Notification is to inform you of the existence of a collective action lawsuit in which you are potentially eligible to participate because you may be "similarly situated" to the named Plaintiff. This Notification is also intended to advise you how your rights under the Federal Fair Labor Standards Act (the "Act") may be affected by this lawsuit, and to instruct you on the procedure for participating in this suit, should you decide that it is appropriate and you choose to do so.
2. DESCRIPTION OF THE LAWSUIT
This lawsuit has been brought by Lisa Barnett ("Plaintiff") against Countrywide Credit Industries, Inc., Countrywide Home Loans, Inc. and Full Spectrum Lending, Inc. (collectively referred to as "Countrywide") in the United States District Court for the Northern District of Texas. The lawsuit alleges that Countrywide failed to provide overtime compensation as required by the Act. Plaintiffs lead counsel in this case are:
Caryl Boies (clboies@bsfllp.com) Anne Hinds (ahinds@bsfllp.com) Sigrid McCawley (smccawley@bsfllp.com) Boies, Schiller Flexner L.L.P. 2435 Hollywood Boulevard Hollywood, FL 33020 Telephone: (888) 230-9058 Facsimile: (954) 929-1185Generally, the overtime provisions of the Act require that, for all hours over forty hours per week that an employee works, the employer must compensate the employee at the rate of one and one-half times his or her regular hourly rate, unless that employee is properly classified as "exempt" from the overtime provisions of the Act. The Plaintiff in this lawsuit claims that during one or more weeks of her employment with Countrywide, she worked in excess of forty hours, but was not paid overtime at the rate of one and one-half times her hourly rate for the hours she worked in excess of forty. Plaintiff alleges that she was not properly paid for her overtime hours due to Countrywide's deliberate misclassification of Plaintiff as exempt from the overtime provisions of the Act. Plaintiff is suing to recover unpaid overtime compensation for the period from June 20, 1998, to the present.
3. COMPOSITION OF THE CLASS
The named Plaintiff seeks to sue on behalf of herself and also on behalf of other employees with whom she is similarly situated. Those that Plaintiff alleges are similarly situated are those current and former Account Executives, Home Loan Consultants, Loan Officers, and Loan Originators of Countrywide at any time from June 20, 1998, to the present, who did not enter into agreements requiring the arbitration of overtime compensation claims. If you entered into such an arbitration agreement, you cannot consent to join this suit, but may instead pursue your overtime compensation claim in arbitration, by following the procedures outlined in your arbitration agreement.
This Notification is only for the purpose of determining the identity of those persons who wish to be involved in this case and has no other purpose. Your right to participate in this suit may depend upon a later decision by the United States District Court that you and the representative Plaintiff are actually "similarly situated."
4. YOUR RIGHT TO PARTICIPATE IN THIS SUIT
If you fit the definition above, that is, you were employed as an Account Executive, Home Loan Consultant, Loan Officer, or Loan Originator anytime since June 20, 1998, did not sign an arbitration agreement with Countrywide, and worked overtime hours for which you were not compensated, you may have a right to participate in this lawsuit. IT DOES NOT MATTER THAT:
YOU WERE PAID ON A SALARY BASIS
YOU KEPT RECORDS OF YOUR HOURS WORKED
YOU WERE TOLD BY COUNTRYWIDE THAT YOU WERE NOT ELIGIBLE TO RECEIVE OVERTIME PAY
YOU WERE PAID FOR OVERTIME HOURS WORKED AT A RATE OF LESS THAN ONE AND ONE-HALF TIMES YOUR HOURLY RATE
5. HOW TO PARTICIPATE IN THIS LAWSUIT
Enclosed you will find a form entitled "Consent to Become a Party Plaintiff' ("Consent Form"). If you choose to join this lawsuit, and thus participate in any recovery that may result from this lawsuit, it is extremely important that you read, sign and return the Consent Form. An addressed and postage paid envelope is enclosed for your convenience. Should the enclosed envelope be lost or misplaced, the Consent Form should be sent to:
Overtime Lawsuit Against Countrywide Boies, Schiller Flexner, LLP 2435 Hollywood Boulevard Hollywood, Florida 33020-6629
The signed Consent Form must be postmarked by August 23, 2002. If your signed Consent Form is not postmarked by August 23, 2002, you will not participate in any recovery obtained against Countrywide in this lawsuit. If you have any questions about filling out or sending the Consents, please contact Plaintiffs counsel listed on page one of this notice.
6. NO RETALIATION PERMITTED
It is a violation of Federal law for Countrywide to discharge, or in any manner discriminate or retaliate against you for taking part in this case. If you believe that you have been penalized, discriminated against or disciplined in any way as a result of your receiving this notification, considering whether to join this lawsuit or actually joining this lawsuit, you should contact Plaintiff's counsel immediately.
7. EFFECT OF JOINING THIS SUIT
If you choose to join in this lawsuit, you will be bound by the judgment, whether it is favorable or unfavorable. You will also be bound by, and will share in, any settlement that may be reached on behalf of the class.
By joining this lawsuit, you designate the representative Plaintiff as your agent to make decisions on your behalf concerning the litigation, the method and manner of conducting this litigation, the entering of an agreement with Plaintiffs counsel concerning fees and costs, and all other matters pertaining to this lawsuit. These decisions and agreements made and entered into by the representative Plaintiff will be binding on you if you join this lawsuit.
The representative Plaintiff in this matter has entered into a contingency fee agreement with Plaintiff's counsel, which means that if there is no recovery, there will be no attorneys fees or costs chargeable to you. If there is a recovery, Plaintiffs counsel will receive a part of any settlement obtained or money judgment entered in favor of all members of the class. You may request a copy of the contingency fee agreement executed by the Plaintiff in this matter from Plaintiffs counsel at the address, telephone number, facsimile number, or e-mail that appears on page one of this notice.
8. NO LEGAL EFFECT IN NOT JOINING THIS SUIT
If you choose not to join this lawsuit, you will not be affected by any judgment or settlement rendered in this case, whether favorable or unfavorable to the class. You will not be entitled to share any amounts recovered by the class. You will be free to file your own lawsuit, subject to any defenses that might be asserted. The pendency of this suit will not stop the running of the statute of the limitations as to any claims you might have until you opt-in to it.
9. FURTHER INFORMATION
Further information about this Notification or the lawsuit may be obtained from Plaintiffs counsel at the address, telephone number, facsimile number or e-mail identified on page one of this notice.
THIS NOTICE AND ITS CONTENTS HAVE BEEN AUTHORIZED BY THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, BARBARA M.G. LYNN, UNITED STATES DISTRICT COURT JUDGE. THE COURT HAS TAKEN NO POSITION REGARDING THE MERITS OF THE PLAINTIFF'S CLAIM OR OF THE DEFENDANTS' DEFENSES.
United States District Court, Northern District of Texas, Dallas Division.
LISA BARNETT, on behalf of herself and all others similarly situated, Plaintiff, v. COUNTRYWIDE CREDIT INDUSTRIES, INC., COUNTRYWIDE HOME LOANS, INC., and FULL SPECTRUM LENDING, INC., Defendants.
Civil Cause No. 3:01-CV-1182-M
CONSENT TO BECOME PARTY PLAINTIFF
I understand that I may be eligible to join this lawsuit filed by former employees of Defendants to recover unpaid overtime wages and liquidated damages.
By choosing to join this lawsuit, I understand that I designate the named Plaintiff identified in the above caption, hereinafter the "Representative Plaintiff," as my agent to make decisions on my behalf concerning the litigation, including the method and manner of conducting this litigation, entering into settlement agreements, entering into agreements with Plaintiff's counsel concerning attorneys fees and costs, and all other matters pertaining to this lawsuit. These decisions and agreements, made and entered into by the Representative Plaintiff, will be binding on me if I join this lawsuit.
I understand that Representative Plaintiff has entered into a Contingency Fee Agreement with the law firm of Boies, Schiller Flexner LLP, which applies to all Plaintiffs who join in this lawsuit. If I join the lawsuit, I agree to be bound by such Contingency Fee Agreement. I understand that under the terms of that Contingency Fee Agreement, the law firm's attorneys fees and costs shall only be paid out of a recovery, by judgment, settlement or otherwise, in this action; and that if no such recovery is obtained, I will not be held responsible for such attorneys fees or costs. I further understand that I may obtain a copy of the Contingency Fee Agreement upon requesting it from Plaintiff's counsel.
By choosing to join in this lawsuit, I understand that I will be bound by the judgment, whether it is favorable or unfavorable. I will also be bound by, and will share in, as the court may direct, any settlement that may be negotiated on behalf of all Plaintiffs.
If I choose not to join this lawsuit, I acknowledge and understand that I will not be affected by any judgment or settlement rendered or reached in this lawsuit, whether favorable or unfavorable to the Plaintiff, and I will not be entitled to share in any amounts recovered by the Plaintiff whether by judgment, settlement or otherwise.
I hereby consent to join in this lawsuit,
_________________ ________________ Signature Date
PLEASE PRINT OR TYPE THE FOLLOWING INFORMATION:
Name:_____________________________________
Any other Name(s) used or known by: __________________________________________
Street Address:___________________________
Mailing Address:__________________________
City, State Zip Code:___________________
Daytime Telephone:________________________
Evening Telephone:________________________
Cellular Telephone:_______________________
E-Mail Address:___________________________