Medrano v. Flowers Food, Inc. et al

RESPONSE in Opposition re Opposed MOTION Decertification of the Conditionally Certified Collective Action and Memorandum in Support

D.N.M.January 25, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO PAUL MEDRANO, on his own behalf and ) on behalf of all others similarly situated, ) ) Plaintiff, ) ) NO.1:16-CV-00350-JCH-KK v. ) ) FLOWERS FOODS, INC., and ) FLOWERS BAKING CO. OF ) EL PASO, LLC ) ) Defendants. ) PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION FOR DECERTIFICATION OF THE CONDITIONALLY CERTIFIED COLLECTIVE ACTION Plaintiff Paul Medrano, individually and on behalf of all other similarly situated individuals (“Plaintiffs”), in opposition to Defendants’ Motion for Decertification of the Conditionally Certified Collective Action (ECF Doc. 158) (the “Motion for Decertification”) filed jointly by Defendants Flowers Foods, Inc. (“Flowers Foods”) and Flowers Baking Company of El Paso, LLC (“Flowers El Paso” and together with Flowers Foods, the “Defendants”), state as follows: I. INTRODUCTION The arguments raised by Defendants in support of their Motion for Decertification are no surprise: Flowers Foods and other Flowers subsidiaries have raised these arguments in other courts, and they have failed. The reason they have failed is because judicial economy is best served by a trial of this case on a collective basis. Defendants provide oversimplified and misconstrued examples of testimony by the Plaintiffs in an effort to show that the Plaintiffs are not similarly Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 1 of 27 2 situated, but the reality is that individualized inquiry is not required to determine whether the Plaintiffs are employees under the economic realities test. To the contrary, Defendants themselves uniformly treat each of the Plaintiffs the same and never consider individualized circumstances when they improperly classify all distributors, including Plaintiffs, as independent contractors. The differences between Plaintiffs in this case are embellished and legally insignificant. Plaintiffs have never denied that there are differences by and among them; it is unrealistic to imagine a situation where every work circumstance was identical. However, Plaintiffs can easily establish that they are similarly situated for purposes of collective treatment under the Fair Labor Standards Act (“FLSA”). In light of the clear policy considerations behind the use of the collective action mechanism, including fairness, judicial economy, and simplicity of trial management, collective treatment of this case is warranted, and the Motion for Decertification should be denied. II. FACTS: FLOWERS’ SCHEME TO CONTROL THE DETAILS OF ITS DISTRIBUTORS’ WORK Defendants’ business consists of developing and marketing bakery products for national sale and distribution through an integrated network of subsidiaries. Exhibit 2, Flowers Foods 2017 Form 10-K, at p. 4-6. Distributors such as Plaintiffs are hired for the purpose of distributing the Flowers Foods products to Defendants’ customers and are responsible for the distribution of approximately 85% of Defendants’ products through a “direct store delivery” or “DSD” model. Id. p. 5-10. The terms of the delivery arrangements under this model are dictated by Flowers and the retail customer, who negotiate a DSD or supply agreement. See Baldwin Dep., Exhibit 3, 73:9- 23. The distributors have no involvement in the negotiation of such agreements, and are generally unaware of the terms of the agreement. Id., 89:1-11; C’ De Baca Dep., Exhibit 4, 169:20-170:4; Sosa Dep., Exhibit 5, 150:8-18; Baxley Dep., Exhibit 6, 90:2-10. Yet, the terms of such agreement Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 2 of 27 3 apply uniformly to the delivery of the bakery products by all distributors, including servicing requirements, pricing, and promotions. Ex. 3, 74:22-75:20, 81:4-16, 110:17-24; Ex. 4, 132:2-6. Flowers’ success is wholly dependent upon the distributors’ participation and success under the DSD model. Ex. 6, 48:10-24, 101:10-102:5; Ex. 4, 49:3-13. Each distributor, including Plaintiffs, are required to enter into a Distributor Agreement, which has virtually identical terms for each distributor. See Exhibit 7, Sample Distributor Agreement. A distributor does not have the ability to negotiate or suggest modification to any of the terms of the Distributor Agreement. Ex. 4, 82:11-13. There are no educational requirements, work history, or specific skills required to become a distributor. Ex. 6, 198:7-25, Madrid Dep., Exhibit 8, 147:8-25. Before becoming a distributor under the Distributor Agreement, the distributor is hired as a “prospective distributor,” and all prospective distributors participate in the same training provided by Defendants. This training includes how to operate a delivery route, how to operate a handheld computer that all distributors are required to use, how to properly rotate the bakery products, how to use the Flowers’ product codes, and the ordering process. Ex. 8, 50:13- 21, Ex. 4, 44:7-22. “Prospective distributors” are considered employees, who are paid an hourly rate, including overtime. Avritt Dep., Exhibit 9, 35:10-24; 37:1-4. The Distributor Agreement is signed after training is complete, and the distributor is reclassified from an employee to an “independent contractor,” yet the job responsibilities and daily tasks for the distributor are exactly the same as they were for a prospective distributor. In fact, when signing the Distributor Agreement, the distributor also signs a “Distributor Checklist,” which confirms that the distributor understands the tasks required of him to obtain and keep the Flowers’ customer’s business, and that the distributor acknowledges that there are limitations on the distributor’s ability to act outside of the expectations set by Flowers. See Distributor Checklist, Exhibit 10. Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 3 of 27 4 Under the Distributor Agreement, all distributors have the obligation to follow “good industry practice” and use their “best efforts” in performing their daily work. Ex. 7, ¶ 5.1. These requirements allow Flowers to control virtually every aspect of the distributors’ job, because if a distributor is deemed to be not in compliance with “good industry practice,” Defendants reserve the right to reprimand the distributor. Ex. 8, 54:20-24; Ex. 7, ¶¶ 5.2, 16.1-16.3. When Flowers determines, in its sole and unlimited discretion, that a distributor has failed to comply with his job duties, Flowers retains the right to send a “breach letter” to the distributor, referring to his alleged breach of the Distributor Agreement. Ex. 7, ¶¶ 5.2, 16.3; Ex. 6, 163:17-22. Flowers further retains the ability to terminate a distributor if Flowers determines that the “breach” is uncurable. Ex. 7, ¶¶ 2.6, 5.1, 16.2. This unilateral, discretionary right to reprimand the distributors or terminate a distributorship is akin to “at will” employment in that Flowers retain the unilateral ability to terminate the relationship with a distributor based upon Flowers’ own definition of cause. Each Distributor Agreement uniformly contains numerous other provisions that further demonstrate the existence of an employment relationship, including, for example, restrictions on the sale of stale product, mandatory compliance with all promotions and pricing for national accounts, requirements to use Flowers’ technology, a prohibition on a distributor’s ability to sell competitive products, and control over termination of the distributor’s territory rights. Ex. 7, ¶¶ 5.1, 11.3, 12.2, 16.1-16.4. The Distributor Agreement further includes a Covenant Not to Compete and Right of First Refusal for the purchase of a distributor’s territory, which further evidence the employer/employee relationship and high degree of control exercised by the Defendants over the distributors, including Plaintiffs. Id., ¶¶ 14.1, 20.8. Notably, the Defendants proposed an amendment to the Distributor Agreement for all distributors, which, among other things, would eliminate certain terms of the Agreement that evidence the employee/employer Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 4 of 27 5 relationship, including the limitation on a distributor’s ability to sell his territory and the covenant not to compete. See Flowers Baking Co. of El Paso Memorandum and proposed Amendment to Distributor Agreement, Exhibit 11, ¶¶ 3, 8. Defendants in fact confirmed that despite the term in the Distributor Agreement stating that the Plaintiffs are “common law independent contractors,” that “shall not be controlled by COMPANY as to the specific details or manner of DISTRIBUTOR’S business,” (Ex. 7, ¶ 15.1), the reality is the vast majority of the “specific details” of the Plaintiffs’ business are controlled by Defendants based on their DSD agreement with the retail stores. Indeed, Defendants testified that Plaintiffs have no control over pricing of products, which stores to sell product to, which products to sell, how much shelve space they get, whether to put a product on sale, or whether to keep shelves fully stocked (which they are required to do). Ex. 6, 173:20-177:3; Ex. 4, 212:24-213:22; Del Campo Dep., Exhibit 12, 71:23-74:1; Havens Dep., Exhibit 13, 129:14-131:11.1 Plaintiffs are further required to comply with the servicing requirements, including, for example, delivery times and dress code. Ex. 3, 74:14-75:5; Ex. 5, 116:20-22, 155:25-156:4.2 Moreover, it is part of Flowers’ management’s responsibility to constantly monitor Plaintiffs’ work, including by 1 Defendants highlight testimony from Plaintiff Joseph Chavez regarding his alleged “entrepreneurial approach” to his distributorship. Motion, p. 6. Defendants ignore Mr. Chavez’s testimony regarding the numerous ways in which he received specific instruction regarding his job expectations, including receiving store service standards from Flowers and being told by Flowers what sales to run, what displays to put up, how much bread to delivery. (J Chavez Dep., Exhibit 16, 35:1-20; 38:17-25, 39:1-21). He further testified that it was impossible to obtain new business because a Flowers manager was required to be involved to make a new deal with a new customer. Id., 42:16-25, 43:1-6. Additionally, when Mr. Chavez tried to have other individuals help him run his delivery route, it was “frowned upon” and management informed him that he signed up for the job and he was obligated to do the job himself or he would be “fired.” Id., 60:20-25, 61:1-25, 62:1-4. 2 When a distributor is required to wear a shirt with a company logo, this logo is for a Flowers product, clearly indicating that the distributor works for Flowers. Id. Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 5 of 27 6 performing regular store visits to the retail stores to which Plaintiffs make deliveries. Ex. 6, 29:9- 17; Ex. 13, 22:19-25, 47:15-48:5; Ex. 5, 26:13-27:17. Notably, all of the delivery obligations and store servicing requirements apply equally to anyone servicing the store, whether a distributor or an employee of the temp service hired by Defendants for open routes or company-owned routes. An “open route” exists where a territory contains stores to which Flowers’ products must be delivered, but there is no distributor that “owns” that territory, and therefore the route is considered “open.” Ex. 3, 13:23-14:16; Ex. 5, 26:7-9; Ex. 6, 127:11-128:3.3 When an open route exists, the delivery is made by either a Flowers’ manager or by a temp agency hired by Flowers. In either case, the store servicing requirements apply equally to the person making delivery, whether a distributor, a Flowers’ manager, or a temporary worker. Ex. 3, 81:4-16, Ex. 4, 266:24-267:15, 276:3-9; Ex. 5, 29:21-30:4; Ex. 8, 75:20- 76:7. And, the job duties for supplying product to open routes are exactly the same, whether performed by a distributor or Flowers. Ex. 4, 16:20; Ex. 13, 51:2-6; Ex. 8, 128:22-129:3, 154:18- 155:3, 159:21-160:3. The only difference between a distributor-run route and an open route is the way the distributor gets paid and the amount of expense that Flowers is able to shift onto the distributor. Ex. 8, 157:9-16. The Distributor Agreements uniformly misclassify each Plaintiff as “common law independent contractors,” but they are actually classified by the Defendants as “statutory employees” for tax purposes. Ex. 7, ¶ 15.1. As statutory employees, Plaintiffs receive a W-2 annually and not a form 1099. Salas Dep., Exhibit 14, 60:3-9. In classifying the Plaintiffs as 3 A “company route” is similarly an unowned route, but in the case of a company route, Flowers recognizes that there is little to no profit to be made based on the location of the territory or another factor, so the company does not ever expect that the route will be purchased by a distributor, but it has to serviced in any event in order to preserve Flowers’ relationship with the retail outlet. See Ex. 12, 169:5-14. Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 6 of 27 7 statutory employees, Defendants are representing to the IRS that Plaintiffs are agents of Defendants or are paid on commission, that the Plaintiffs do not have a substantial investment in their equipment or property, and that Plaintiffs themselves perform services for Defendants on a continuing basis. See id., 62:14-23, 26 U.S.C. § 3121(d)(3); 26 C.F.R. § 31.3121(d)-1(d). This representation to the IRS by the Flowers Defendants contradicts the assertion by Defendants that Plaintiffs have a substantial investment in their businesses or that the Plaintiffs’ use of “human capital” is any indicia of their status as independent contractors. III. ARGUMENT: PLAINTIFFS ARE SIMILARLY SITUATED FOR PURPOSES OF COLLECTIVE TREATMENT UNDER THE FAIR LABOR STANDARDS ACT A. Standard for Decertification Under the FLSA, a collective action for payment of unpaid overtime wages may be maintained “by any one or more employees for and on behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Courts in the Tenth Circuit follow a two-step ad hoc approach to determine whether the named plaintiff and opt-in plaintiffs are similarly situated for purposes of certifying a collective action. At the first stage, a court makes a “notice stage” determination of whether the plaintiffs are similarly situated. Maestas v. Day & Zimmeramn, LLC, No. 09-019-WJ-LFG, 2013 WL 11311781, at *3 (D.N.M. Dec. 20, 2013). If the Court conditionally certifies the class—which occurred in this case—the Court then makes a second determination, usually prompted by a defendant’s motion to decertify, utilizing a stricter standard to determine if the plaintiffs are similarly situated by evaluating three factors: (1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; and (3) fairness and procedural considerations. See id.; see also Thiessen v. General Electric Capital Corp., 267 F.3d Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 7 of 27 8 1095, 1103 (10th Cir. 2001). All of these factors favor denial of Defendants’ Motion for Decertification. While the “similarly situated” standard is more stringent at the decertification stage than the conditional certification stage, the existence of factual differences among individual plaintiffs does not lead to decertification where the differences are outweighed by factual similarities, as they are here. See Lozoya v. All Phase Landscape Construction, 12-CV-1048-JLK, 2014 WL 222104, at *1 (D. Colo. Jan. 21, 2014); see also Thompson v. Bruister & Associates, Inc., 967 F. Supp. 2d 1204, 1220 (M.D. Tenn. 2013) (quoting Frank v. Gold’n Plump Poultry, Inc., No. 04- CV-1018, 2007 WL 2780504, at *4 (D. Minn. Sept. 24, 2007) (“Rare would be the collective action…where the employees labored under the exact same circumstances. Indeed, ‘if one zooms in close enough on anything, differences will abound.’”); Gionfriddo v. Jason Zink, LLC, 769 F. Supp. 2d 880, 886 (D. Md. 2011) (“similarly situated” does not mean “identical”). The key issue is whether proceeding collectively serves the purposes of Section 216(b) of FLSA to allow Plaintiffs “the advantage of lower individual costs to vindicate their rights by the pooling of resources” and to promote judicial efficiency by resolution of common issues of law and fact arising from the same activity in a single proceeding. Hoffman-LaRoche Inc. v. Sperling, 493 U.S. 165, 170 (1989). In three other recent cases against Flowers, with similar facts in the record as exist here, the courts denied the defendants’ motions for decertification, finding that the plaintiffs (all Flowers distributors, as in this case) were similarly situated. See Rehberg v. Flowers Baking Co. of Jamestown, LLC, No. 3:12-cv-00596-MOC-DSC, 2015 WL 1346125, at *16 (W.D.N.C. Mar. 24, 2015) (denying decertification where similarities in the plaintiffs’ claims outweighed their differences); Richard v. Flowers Foods, Inc., No. 15-2557, slip op. at 29 (W.D. La. Aug. 13, 2018) Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 8 of 27 9 (finding “a meaningful nexus” binding the plaintiff distributors’ claims together and that the similarities in the claims outweighed the differences); Noll v. Flowers Foods, Inc., 1:15-CV- 00493-LEW, 2019 WL 206084, at *5 (D. Me. Jan. 15, 2019) (finding that plaintiffs were similarly situated, that it was possible to preserve and address individual defenses, and that maintenance of a collective action was preferable to conducting separate trials). Defendants’ Motion for Decertification should similarly be denied. B. Under The Six-Factor Economic Realities Test, Plaintiffs Readily Demonstrate The Economic Reality That Their Classification Can Be Established Through Representative Evidence. In a case involving claims for misclassification, as in this case, when evaluating the first factor for determining whether decertification is appropriate, courts apply a six factor “economics reality test” to evaluate the disparate factual and employment settings of the individual plaintiffs. Typically, the six factor economics reality test is a test applied to determine whether an individual qualifies as an “employee” under the FLSA. See Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 570 (10th Cir. 1994) (denying summary judgment where genuine issues of material fact existed as to whether plaintiff was an employee or independent contractor). As acknowledged by Defendants, in the context of a defendant’s motion for decertification, “the Court’s task is not to consider the merits of whether the economic realities test is satisfied, but rather to decide whether the factual and employment settings of the [plaintiffs] are similar.” Blair v. TransAm Trucking, Inc., 309 F. Supp. 3d 977, 1003 (D. Kan. 2018). The six factors considered when applying the economic reality test include: (1) the degree of control exerted by the alleged employer over the worker; (2) the worker’s opportunity for profit or loss; (3) the worker’s investment in the business; (4) the permanence of the working relationship; (5) the degree of skill required to perform the work; and (6) the extent to which the Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 9 of 27 10 work is an integral part of the alleged employer’s business. Henderson, 41 F.3d at 570. The fundamental consideration under the economic reality test is whether, under the totality of the circumstances, the individual is economically dependent on the employer or is, as a matter of economic fact, in business for himself. Id. Even an inference that a plaintiff was “more economically dependent on defendants than not” lends support to a plaintiff’s claim that he was an employee and not an independent contractor. Id. When the economic realities are examined in this case, the record readily establishes that Plaintiffs are similarly situated, and their classification can be established through representative evidence. 1. There is ample evidence that the Flowers Defendants exercised a great degree of control over the manner in which work is performed by Plaintiffs. Each of the Plaintiffs signed essentially the same contract classifying them as independent contractors, and they had no input on any of the terms of the agreement. See Ex. 3, 92:14-25, 93:1-11. Their job duties, which were virtually identical, are well-defined in the agreement. Specifically, while their delivery routes differed by size and customer mix, all Plaintiffs shared the same primary job responsibility to service the retail outlets in their delivery areas in accordance with “good industry practice.” See Ex. 7, ¶ 5.1. According to their own contract, Defendants define “good industry practice” as maintaining an adequate and fresh supply of Flowers’ bread products in all stores, rotating all products, removing stale products, meeting customer service requirements, meeting the delivery and service needs of any store requesting service, and maintaining all equipment in a sanitary condition and in good, safe working order. Id., ¶ 2.6. By enforcing these standards, the Flowers Defendants control nearly every aspect of the Plaintiffs’ work. Defendants acknowledge that all distributors are treated the same in terms of the enforcement of the requirements of the distributor agreement. Ex. 6, 167:7-18. Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 10 of 27 11 Defendants further control Plaintiffs’ job functioning by providing all equipment needed to complete their work, including handheld computers, operating procedures, mobile printers, and other equipment. See Ex. 6, 267:2-8; Ex. 12, 7:11-16. Plaintiffs are required to use the handheld computers that are provided to them, and they must rent space at the Flowers’ warehouse in order to receive Flowers’ bread products. See Ex. 3, 85:24-25, 86:1-25, 87:1-15. Plaintiffs were all required to complete the same training provided by Defendants, and there is no dispute that prospective distributors are employees for purposes of the Fair Labor Standards Act and are paid an hourly wage rate during training, even when their duties are identical to their duties upon becoming a distributor. Ex. 9, 35:10-24; 37:1-4; Ex. 8, 50:13-21, Ex. 4, 44:7-22. Plaintiffs that did not comply with any aspect of Flowers’ requirements were subject to discipline, including “breach letters,” and the risk that their job would be terminated. Ex. 6, 64:19-25; Ex. 7, ¶¶ 16.1- 16.3. Flowers’ sales managers frequently conduct market checks to assess the Plaintiffs’ performance at the retail stores and make sure that the Flowers’ products are properly displayed. Ex. 6, 77:1-11. Defendants argue that despite Flowers’ exercise of “uniform control” of these various aspects of the Plaintiffs’ jobs, because the Distributor Agreement disclaimed Defendants’ rights to control the distributors, this exercise of control should be ignored. See Motion, p. 11. Yet, Defendants’ own witnesses testified that many of the most substantive aspects of Plaintiffs’ businesses were not within the Plaintiffs’ discretion, and rather were subject to Flowers’ requirements based on Flowers’ agreement with the end customer. Specifically, Plaintiffs did not control pricing of the bread products, which stores to sell the products to, how much shelve space would be provided in any store, or which products to sell. See Ex. 6, 173:20-177:3; Ex. 3, 110:17- 24; Ex. 4, 108:8-20, 111:11-20; Ex. 12, 71:23-74:1. Moreover, Defendants have testified that Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 11 of 27 12 Plaintiffs were required to comply with the service requirements of the stores, because if they did not, a store might choose not to work with Flowers. Ex. 6, 101:10-102:5. Defendants further testified that each of the servicing requirements applied equally to anyone servicing the store, whether a distributor or a Flowers’ employee, and that the policies, practices, and procedures applicable to the distributors’ businesses are the same for all distributors. Ex. 3, 74:14-75:20, 81:4- 16; Ex. 4, 132:2-6. Moreover, Defendants employ sales and management teams to ensure that all distributors comply with the fundamental expectations as set out in the Distributor Agreement. Ex. 6, 29:9-17, 77:1-11. Defendants’ argument that any demands dictated by the customers serviced by Plaintiffs are irrelevant to the six-factor test is unavailing because Flowers, not the Plaintiffs, controls the relationship with customers. These demands are specifically negotiated between Flowers and the end customer in a supply agreement. Ex. 3, 73:9-23. The distributors have no involvement in the negotiation of that supply agreement. Ex. 4, 169:20-170:4. A Distributor Checklist that the Plaintiffs were all required to sign confirms that Defendants are authorized agents for Plaintiffs in negotiating the business arrangements between Flowers and all national accounts, and Defendants actually exercise that right to control the affairs that materially affect the Plaintiffs’ bottom line. This authority is not limited to pricing, but includes restrictions on the ability of distributors to independently operate their business, and contains all terms necessary to obtain and keep the end customers’ business for Flowers’ benefit. See Ex. 10. This type of argument has been found unpersuasive in similar contexts regarding plaintiff drivers because “any employer’s business is, in essence, dictated by the needs of its customers,” so the inquiry is not who is dictating the needs, but rather the extent to which Flowers goes about meeting those needs “and to what extent the chosen methods operate to control the activities of [plaintiff drivers] and in turn restrict their Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 12 of 27 13 autonomy.” See, e.g., Sakacsi v. Quicksilver Delivery Systems, Inc., No. 8:06-cv-1297-T-24- MAP, 2007 WL 4218984, at *4 (M.D. Fla. Nov. 28, 2007). The Distributor Agreement also includes a Covenant Not to Compete, which is further evidence of an employer/employee relations and the control exercised by the Defendants over the alleged “independent” distributors. Defendants’ own lawyers have taken the position that the lack of a covenant-not-to-compete is a factor showing that an individual is an independent contractor instead of an employee. See Ferreira v. Network Express, Inc., No. 6:05-cv-893-Orl-22DAB, 2007 WL 8097539, at *5 (M.D. Fla. Mar. 9, 2007) (counsel from Ogletree Deakins law firm argued that because the agreement between a driver and Network Express did not contain a covenant-not-to- compete, this helped demonstrate that the driver was an independent contractor). Additionally, Defendants’ efforts to amend the Distributor Agreement to remove such terms as the covenant- not-to-compete serves as an acknowledgement that under the current Distributor Agreement, Plaintiffs are treated as employees. See Ex. 11. Defendants’ attempts to highlight individual testimony from certain Plaintiffs on immaterial issues is also unavailing. Flowers has deployed this argument in three other cases, and the courts in those cases concluded that significant common evidence existed that would allow the courts to determine on a collective basis whether all distributors were employees or independent contractors. Rehberg, 2015 WL 1346125, at *16; Richard, No. 15-2557, slip op. at 29, Noll, 2019 WL 206084, at *1-5. As stated by the court in Rehberg, and adopted by the court in Richard, “Defendants exaggerate isolated differences among the distributors and ignore the large picture of the issue at hand—that all distributors are subject to [d]efendants’ uniform policies.” Rehberg, 2015 WL 1346125, at *17. The court noted the disingenuity of the Flowers’ defendants’ argument: “Defendants, who now argue that determining independent contractor status requires fact-intensive Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 13 of 27 14 individualized inquiries, apparently had no difficulty in classifying all distributors as independent contractors when asking them to sign Distributor Agreements.” Id. (referencing Nerland v. Caribou Coffee Co., 564 F. Supp. 2d 1010, 1023 (D. Minn. 2007) (finding that it was “disingenuous for Caribou, on the one hand, to collectively and generally decide that all store managers are exempt from overtime compensation without any individualized inquiry, while on the other hand, claiming the plaintiffs cannot proceed collectively to challenge the exemption)). 2. Plaintiffs’ opportunities for profit or loss are dictated by Flowers’ sales model. The second consideration in the economic realities test evaluates the Plaintiffs’ opportunities for profit and loss. An independent contractor undertakes the risks of profit and loss, whereas an employee’s ability to do so is limited. See Lewis v. ASAP Land Express, Inc., 554 F. Supp. 2d 1217, 1223-34 (D. Kan. 2008). Here, there is ample evidence, as set forth in Section III(B)(1) above, that Flowers, not Plaintiffs, controlled all significant aspects of the business relationships with national accounts. 4 Specifically, there exists a “Direct Store Delivery” (commonly referred to as “DSD”) Agreement or Supply Agreement between Flowers Foods and the national accounts. Ex. 3, 73:9-23. These agreements dictate the service requirements for the stores. Flowers and the national account determine the pricing of product and when products will go on sale. Plaintiffs cannot choose not to participate in a promotion or sale, and they cannot decide not to sell certain products. Id., 74:14-75:20. Moreover, they cannot choose to forego service to an unprofitable account, and must provide service to all national accounts, regardless of 4 Multiple of Defendants’ witnesses testified that the servicing of national accounts comprises the vast majority of a distributors’ business. Ex. 13, 83:18-24 (testifying that in general, only 2% of a distributors’ sales would be attributed to independent stores); Ex. 3, 110:10-12 (testifying that only approximately 10-15% of Flowers El Paso’s revenue comes from independent accounts). Defendants’ efforts to emphasize the “control” Plaintiffs had over their own business in regard to the servicing of independent, non-chain accounts, is therefore unavailing. Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 14 of 27 15 the profitability to them. Id., 78:22-79:9. The inability to forego delivery to an unprofitable retailer is a key factor in determining whether Plaintiffs have real opportunity for profit and loss, which they do not. See e.g., Collinge v. Intelliquick Delivery, No. 2:12-cv-00824 JWS, 2015 WL 1299369, at *4 (D. Ariz. Mar. 23, 2015) (where delivery drivers had limited ability to reject unprofitable jobs, this favored employee status); Campos v. Zopounidis, No. 3:09-cv-1138 (VLB), 2011 WL 2971298, at *7 (D. Conn. July 20, 2011) (finding no meaningful opportunity for profit where drivers were “required to make all assigned deliveries”). Flowers has explained in various of its annual reports: We have a national account team for key trade customers, bakery teams that build trade relationships on a local level, and a business analysis and insights team that provides our trade partners with objective ideas that can benefit their overall bakery category. We also work with trade customers in other ways—from web-based ordering to scan-based trading or pay-by-scan (“PBS”). In foodservice, we partner with national chains to develop customized bakery items that meet their specific needs.5 The distributors’ role in this system is merely the delivery of the bakery products. Flowers’ web-based ordering and scan-based trading and pay-by-scan systems allow Flowers to dictate all of the financial aspects of the sale of their products because the financial transaction takes place wholly outside of the distributors’ business. Flowers’ witnesses have testified that Flowers’ success is dependent on the distributors’ success, and if a distributor does not satisfy his customers, Flowers will provide the service required. Ex. 6, 48:10-24; Ex. 4, 181:10-22. Sales managers consider it to be part of their jobs to call on accounts and maintain good relationships with store managers in order to maintain Flowers’ relationship with the stores. Ex. 6, 77:1-11, Ex. 8, 14:4- 11. Distributors are required to follow a marketing program established by Flowers. Ex. 4, 155:23- 157:6. 5 See, e.g., Flowers Foods, Inc. 10-K Annual Reports for 2011 at p.4 (excerpt attached as Exhibit 15). Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 15 of 27 16 Distributors, on the other hand, cannot propose pricing or products to national accounts. They cannot determine whether to promote certain products and must follow the sales promotions agreed upon between Flowers and the customer, whether or not it is profitable to the Distributor to do so. Ex. 6, 173:20-177:3; Ex. 4, 212:24-213:22; Ex. 12, 71:23-74:1; Ex. 13, 129:14-131:11. The distributors must follow a “schematic” that dictates the amount of shelf space they can use to place the Flowers products. Ex. 4, 167:9-12; Ex. 6, 91:19-92:20. Defendants provide limited examples of efforts by Plaintiffs to enhance their profitability, like using business cards or word- of-mouth advertising. Motion, p. 20. These limited efforts—which likely result in little to no difference in profitability—are tokens creating minor illusions of independent contractor status when compared with Flowers’ overarching business model and the limitations put on distributors, as set forth above. As the court in Lewis explained, “the mere fact that [the company] paid plaintiff by delivery does not create an opportunity for profit” and a plaintiff driver “did not accept a risk of loss simply because he would have received less pay had he chosen to make fewer deliveries.” Lewis, 554 F. Supp. 2d at 1224. More important was the fact that the company “maintained exclusive control over the rates which customers paid for the delivery service.” Id. Here, as set forth above, Flowers worked directly with the vast majority of the customers to determine the pricing of the Flowers’ products. Defendants further argue that Plaintiffs have an opportunity to increase their profit by selling all or part of their distribution rights. However, even this element of the distributorship is subject to approval and right of first refusal by the Defendants, pursuant to the Distributor Agreement. Ex. 7, ¶ 14.1. Moreover, rarely does a distributor sell his distributorship for more than he paid for it, and even if this were to occur, the evidence shows in their daily work, Plaintiffs had no meaningful opportunity for profit based on the severe limitations on their product selection, Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 16 of 27 17 price, promotions, and shelf space. Ex. 6, 173:20-177:3; Ex. 4, 212:24-213:22; Ex. 12, 71:23- 74:1; Ex. 13, 129:14-131:11. 3. Plaintiffs make little investment aside from the purchase of their vehicle in order to obtain a job as a distributor. Defendants argue that a varying degree of investment by the Plaintiffs in their distributorship weighs in favor of certification. Specifically, Defendants point to “different kinds of trucks” purchased by Plaintiffs and “significantly different investment in human capital.” The key here is that the evidence can be viewed collectively to determine if the purchase of a vehicle by Plaintiffs—regardless of the brand or type of truck purchased—weighs in favor of employee status or independent contractor status. Similarly, the Court’s task will be to determine if the use of “helpers” by the Plaintiffs—regardless of how many helpers or how often they were used— weighs in favor of employee or independent contractor status. Defendants do not dispute that Plaintiffs testified that as part of their jobs as a distributor, they were required to utilize a delivery truck. See, e.g., Flores Dep., Exhibit 17, 72:11-22; C. Chavez Dep. Exhibit 18, 55:23-56:3. Defendants also do not dispute that each of the Plaintiffs testified regarding their use of other individuals to assist in the delivery of their Flowers’ products. See, e.g., Ex. 9, 46:15-20, Ex. 17, 64:21-24; Ex. 18, 57:14-21. Moreover, in applying the third factor of the economic realities test, it is undisputed that Defendants provided the handheld computers, proprietary software, printers, and other equipment that Plaintiffs needed to perform their jobs. See Ex. 6, 267:2-8; Ex. 12, 7:11-16. Where an alleged employer maintained its own offices, administrative staff, office equipment, and other investments which bolstered its overall operations, this raises a genuine issue regarding the plaintiff’s employment status. See Lewis, 554 F. Supp. 2d at 1224-25. Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 17 of 27 18 4. The permanency of Plaintiffs’ working relationship with Flowers weighs in favor of employee status. Defendants contend that because the duration of Plaintiffs’ working relationship varied, this issue weighs in favor of decertification. The reality is that the amount of time each Plaintiff worked with Defendants is an issue that only becomes relevant for damages, not the Court’s assessment of whether Plaintiffs were employees or independent contractors. There is no dispute that the Plaintiffs each worked for Flowers El Paso and under the Distributor Agreement, their relationships were “continuous and of indefinite duration.” See id. at 1225. Where a record contains no evidence that the alleged employer hired the plaintiffs for a fixed employment period or that the plaintiffs understood that their work arrangements were limited in duration, this factor suggests employee status. Id. (employer did not hire drivers on a piecework basis of particular deliveries or certain shifts, as here). Moreover, Flowers’ witnesses have testified that they make every effort to avoid distributor turnover because they invest significant time and money training and “taking care of” the distributors. Ex. 4, 231:23-232:16.6 5. Defendants testified consistently that there is no degree of skill required for work as a distributor. Defendants argue that different initiatives taken by Plaintiffs to promote their distributorships indicate a varying degree of skill required, such that individualized evidence would be required on this issue. Motion, p. 23. The issue the Court faces in evaluating this factor is not whether the Plaintiffs approached the delivery of the Flowers’ products differently, but rather 6 In Blair v. TransAm Trucking, Inc., 309 F. Supp. 3d 977, 1007 (D. Kan. 2018), cited by Defendants, the Leased Drivers each signed a contract for a set amount of time – six months, one year, two years, or five years. Here, there is no end date or time limitation for the work performed by Plaintiffs set out in the Distributor Agreements, and many of the Plaintiffs have worked for Flowers for years, if not decades. Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 18 of 27 19 whether any specific skill or education was required to perform the Plaintiffs’ jobs. See, e.g., Lewis, 554 F. Supp. 2d at 1225 (a requirement of specialized skill is indicative of independent contractor status); Lee v. Stockton Telecomms., Inc., 13-CV-01219-KG-SCY, 2015 WL 10818828, at *6 (D.N.M. May 12, 2015) (where record clearly demonstrated that plaintiff’s job did not require formal education, this factor did not weigh in favor of independent contractor status); Molina v. South Florida Exp. Bankserv, Inc., 420 F. Supp. 2d 1276, 1286 (M.D. Fla. 2006) (delivery job required little skill or initiative). Here, Flowers’ witnesses uniformly testified that no degree of skill or education was required by the distributors in order to perform their jobs Ex. 6, 198:7-25, Ex. 8, 147:8-25.7 Defendants’ immaterial examples of Plaintiffs providing samples of products to their customers or engaging in word-of-mouth advertising are not demonstrative of the kinds of specialized skill that would establish independence. To the contrary, the common evidence shows that the Plaintiffs’ primary function was fulfilling orders for products that were agreed to by Flowers and the customers, and that no special skill set was required to do so. 6. Plaintiffs’ work is integral to Defendants’ business. The delivery of bread product performed by Plaintiffs is not only integral to Defendants’ business, it is vital. In evaluating this factor, courts presume “that with respect to vital or integral parts of the business, an employer will prefer to engage an employee rather than an independent contractor.” Lewis, 554 F. Supp. 2d at 1225. The Court must look at the type of work performed by the Plaintiffs and not consider one Plaintiff’s work in a vacuum. Id. Because Flowers cannot function without delivery drivers, this factor weighs in favor of status as an employee. See id. at 7 None of the testimony provided by Defendants on this issue is relevant to the Court’s evaluation of the economic reality test. The inquiry under this factor is simple and straightforward, i.e. whether specialized skill was required for the job. The various supposed “entrepreneurial spirit” demonstrated by some Plaintiffs is not related to this issue. See Motion, p. 23-24. Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 19 of 27 20 1225-25 (holding that where business could not function without delivery drivers and the significance of the drivers’ work was evidenced by an agreement requiring the drivers to give 30- days’ notice of termination, this factor did not weigh in favor of independent contractor status); see also Molina, 420 F. Supp. 2d at 1287 (where company operated a courier business, the plaintiffs were the couriers, and the company would have been unable to perform its business operations without the drivers, the plaintiffs’ services were integral to the company’s business, indicating an employee-employer relationship); Ansoumana v. Gristede’s Operating Corp., 255 F. Supp. 2d 184, 191-92 (S.D.N.Y. 2003) (where defendant was engaged in business of providing delivery services and plaintiffs performed delivery work, plaintiffs’ services constituted integral part of defendant’s business). Rather than admit that this factor weighs against decertification, Defendants instead indicates, in a footnote, that this issue will not be addressed because “by its nature, the sixth factor does not lend itself to consideration of differences among the Plaintiffs as it focuses on the Defendants’ business overall.” Motion, p. 9, n. 5. It is precisely because this factor looks at the nature of Defendants’ business overall that representative evidence assists the Court in determining Plaintiffs’ employment status. The Defendants themselves promote the Court’s consideration of the six-factor economic realities test, and this factor, which weighs heavily against decertification, cannot be summarily overlooked because it asks whether Plaintiffs “depend upon someone else’s business for the opportunity to render service or are in business for themselves.” Brock v. Superior Care, Inc., 840 F.2d 1054, 1059 (2d Cir. 1988). Where a putative employer makes distribution of goods a core element of its business, its delivery workers are, as a matter of law, an integral part of the business. See, e.g., Ansoumana, 255 F. Supp. 2d at 190-92. A putative employer cannot parse away core goods or services by arguing its business is limited to sales or marketing, while Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 20 of 27 21 attributing the underlying goods or services to the so-called independent contractor. See Gayle v. Harry’s Nursery Registry, Inc., 594 F. App’x 714, 717-18 (2d Cir. 2014). Here, Defendants rely almost exclusively on their distributors to deliver their products to retailers. See Ex. 2, Flowers 10-K. Without Plaintiffs’ delivery services, Defendants’ business model would collapse. The Plaintiffs’ role in this business model necessarily rests on facts that will be proven collectively. Looking at each factor of the six-factor economics reality test, the record is clear that Plaintiffs are similarly situated such that representative evidence can be presented at trial to establish their classification. Accordingly, Defendants’ Motion for Decertification should be denied. C. Defendants’ Defenses Are Not Individual To Each Plaintiff And Do Not Warrant Decertification. Decertification is unwarranted under the second factor of the Court’s evaluation, because the defenses available to the Defendants are not individual to each Plaintiff to such a degree as to warrant separate trials. The presence of defenses that might require individualized inquiry does not mandate decertification if common issues and facts predominate, as they do here. See Thiessen, 267 F.3d at 1107 (finding that the existence of even “highly individualized” defenses did not outweigh benefits of proceeding collectively); Rehberg, 2015 WL 1346125 at *17 (“The presence of defenses that require individualized inquiries does not necessarily require decertification if common issues and facts predominate, and the court finds that other factors indicate that Plaintiffs are similarly situated and proceeding as a collective action would be appropriate.”); Richard, No. 15-2557, slip. op. at 31 (court was “not convinced that defendants’ defenses are so individualized that collective adjudication of this claim is unworkable,” citing numerous cases where courts have allowed the use of representative testimony in cases involving allegations of unpaid overtime). Moreover, “[j]ust because the inquiry [under the asserted defense] Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 21 of 27 22 is fact-intensive does not preclude a collective action where plaintiffs share common job traits.” Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1263 (11th Cir. 2008). Defendants have made identical arguments in other courts to the ones they make here regarding their alleged “individualized” defenses and why they warrant decertification, and these arguments have proven unsuccessful. Specifically, Defendants’ argument that there is varied evidence regarding their defense that certain Plaintiffs are subject to the “Motor Carrier Act Exemption” has been specifically addressed and rejected. In Rehberg, the court stated that this exemption, if applicable to any distributors, “does not overwhelm the ‘similarly situated’ analysis.” Rehberg, 2015 WL 1346125 at *18. The court explained, “the primary inquiry for the court at this point is to determine whether or not all distributors were misclassified as independent contractors and whether they are truly employees within the meaning of the FLSA. The issue of whether the distributors are entitled to overtime pay, all exemptions considered, can be dealt with after the court makes its initial decision as to whether they are ‘employees’ within the meaning of the FLSA.” Id. The court concluded that decertification grounded on a potential defense under the Motor Carrier Act Exemption was unwarranted based on a mere possibility that Defendants “may be able to point to a statutory exemption that would affect their liability.” Id.; see also Richard, No. 15-2557, slip. op. at 30-31 (finding no concern with individualized defenses). Other courts have similarly rejected decertification based on the alleged individualized defenses raised under the Motor Carrier Act exemption. See, e.g. Snively v. Peak Pressure Control, LLC, 314 F. Supp. 3d 734, 741-42 (W.D. Tex. 2018); Troy v. Kehe Food Distributors, Inc., 276 F.R.D. 642, 650 (W.D. Wash. 2011). Even when the Defendants’ Motor Carrier Act exemption is considered on its merits, it is clear that this defense can be effectively litigated with representative evidence. The Motor Carrier Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 22 of 27 23 Act exempts motor carriers from paying overtime in certain circumstances, including for delivery drivers driving a vehicle weighing over 10,000 pounds. See 49 U.S.C. § 31132; 29 U.S.C. § 213(b)(1). However, in this case, all of the Plaintiffs have testified that in addition to driving a box truck, they drove their personal vehicles as a regular part of their jobs. See, e.g., Ex. 9, 74:10- 15; Ex. 17, 86:11-22. There are a multitude of courts that confirm that when workers do some meaningful work in vehicles weighing 10,000 pounds or less, the Motor Carrier Act exemption does not apply, including a case against Flowers defendants, where they raised this argument on summary judgment. See Rehberg v. Flowers Baking Co. of Jamestown, LLC (subsequent opinion), 162 F. Supp. 3d 490, 513 (W.D.N.C. 2016) (determining that the distributors worked as motor carrier employees who at least in part affect the safety of operation of motor vehicles weighing 10,000 pounds or less, so they were not exempted from the FLSA through the MCA exemption simply because their work also involved operating heavier vehicles); see also Garcia v. JIA Logistics, Inc., Case No. 16-22870, 2017 WL 2346149, at *5 (S.D. Fla. May 30, 2017) (denying summary judgment under the MCA exemption where plaintiff drove a smaller vehicle “one or two times per month”); Wilkinson v. High Plains Inc., 297 F. Supp. 3d 988, 996 (D.N.D. 2018) (where plaintiffs worked on “mixed fleet” of large and small vehicles, the Motor Carrier Act exemption does not apply and plaintiffs were entitled to overtime); Snively v. Peak Pressure Control, LLC, 314 F. Supp. 3d 734 741-42 (W.D. Tex. 2018) (while MCA defense may require specific factual inquiries about each plaintiff, because the defense was asserted against every plaintiff, collective treatment was appropriate); Rodriguez v. Flowers Foods, Inc., Civil Action No. 4:16-CV-245, 2016 WL 7210943, at *5 (S.D. Tex. Dec. 13, 2016) (in another similar case against Flowers Foods defendants, court held that the need for individualized inquiries regarding the Motor Carrier Act exemption does not foreclose collective treatment). Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 23 of 27 24 Additionally, representative evidence will show that the Motor Carrier Act exemption does not apply to Plaintiffs for the independent reason that they were not subject to Department of Transportation (“DOT”) requirements. In evaluating this issue, courts look at a variety of factors, including whether drivers maintain DOT log books that record drive time, whether drivers must pass DOT written and driving tests; whether drivers must undergo DOT physical and drug test, whether the drivers need to meet DOT and Federal Motor Carrier Safety Regulations (“FMCSR”) in order to drive; whether drivers are required to have a valid commercial driver’s license, whether drivers receive a compilation of applicable regulatory information; whether drivers participate in a program reviewing those regulations; and whether drivers complete FMCSR vehicle inspection reports. See Vanzzini v. Action Meat Distrib., Inc., 995 F. Supp. 2d 703 (S.D. Tex. 2014). Here, Plaintiffs were not required to comply with any of these factors. In a footnote, Defendants dismiss this evidence by stating that DOT compliance was the distributor’s primary responsibility, but they provide no evidence on this issue. Accordingly, representative proof will show that any exemption to the Motor Carrier Act collectively did not apply to the Plaintiffs. See, e.g. Snively, 314 F. Supp. 3d at 741-42. Defendants’ argument that Plaintiffs’ inability to establish uniform hours worked by each Plaintiff is similarly unavailing. Notably, the fact that Plaintiffs do not have recorded hours is due solely to Defendants’ own illegal misclassification scheme. Courts have routinely rejected decertification efforts based on a lack of time records. See, e.g., Thompson v. Buister & Assocs., Inc., 967 F. Supp. 2d 1204, 1220 (M.D. Tenn. 2013) (FLSA plaintiff can estimate damages and need not prove every minute of uncompensated work; the key inquiry at decertification stage is whether the presence of common issues allows the class-wide claims to be addressed without becoming bogged down by individual differences among class members and individualized Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 24 of 27 25 inquiry in connection with damages to be awarded each class member is not a concern); Houston v. URS Corp., 591 F. Supp. 2d 827, 832 (E. D. Va. 2008); Hart v. Rick’s Cabaret Intern., Inc., 60 F. Supp. 3d 447 (S.D.N.Y. 2014) (“it is well-settled that, in wage-and-hour cases, employees are permitted to prove their hours worked as a matter of ‘just and reasonable inference’ in the absence of employer-maintained records) (citing Kuebel v. Black & Decker Inc., 643 F.3d 352, 362 (2d Cir. 2011); Kaiser v. At The Beach, Inc., No. 08-CV-586-TCK-FHM, 2010 WL 5114729, at *21 (N.D. Okla. Dec. 9, 2010) (testimony by employees as to hours in collective action case was in accordance with applicable law where employer fails to require or keep time records); Underwood v. NMC Mortg. Corp., No. 07-2268-EFM, 2009 WL 1322588, at *4 (D. Kan. May 11, 2009) (on defendant’s motion for decertification, determination as to whether a plaintiff worked overtime and how much overtime was a “straightforward inquiry” that would not defeat the propriety of a collective action). D. Fairness And Procedural Considerations Mandate Denial of Defendants’ Motion for Decertification The final factor that courts evaluate upon a defendant’s motion for decertification is fairness and procedural concerns. In evaluating such concerns, the court considers “the primary objective of allowance of a collective action under § 216(b), namely (1) to lower costs to the plaintiffs through the pooling of resources; and (2) to limit the controversy to one proceeding which efficiently resolves common issues of law and fact that arose from the same alleged activity.” Rehberg, 2015 WL 1346125, at *18 (citing Rawls v. Augustine Home Health Care, Inc., 244 F.R.D. 298, 302 (D. Md. 2007). The court also determines whether it can coherently manage the class in a manner that will not prejudice any party. Id. In Rehberg, the Flowers Defendants set out the exact same concerns as they do here, i.e., varying testimony by the plaintiff distributors and the difficulty of requiring defendants to come up with representative proof as to all plaintiffs. Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 25 of 27 26 The court dismissed these concerns and found that “the interests of judicial and procedural economy, fairness, and the primary objectives of collective FLSA actions support moving forward with this action collectively.” Id. at *19; see also Richard, No. 15-2557, slip. op. at 32 (“Decertifying the class would be contrary to both of the purposes of Section 216 of the FLSA. First, judicial economy favors collective adjudication of the plaintiffs’ claims, and it would not be in the interest of judicial economy to require the claims to be adjudicated in individual trials.”) The court in Richard noted that the court is required to remember that the FLSA is a remedial statute, and “the Supreme Court has acknowledged that Congress intended to give ‘plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources.’” Id. at p. 32 (citing Falcon v. Starbucks Corp., 580 F. Supp. 2d 528, 541 (S.D. Tex. 2008) (citing Hoffman, 493 U.S. at 170, 110 S.Ct. 482)). There are no fairness or procedural concerns in this case that outweigh the advantages of proceeding collectively in this case. As detailed above, the prevalent facts are common to all Plaintiffs, and there is sufficient representative evidence for this case to proceed to trial and for the Court to make a class-wide decision on the common issue of whether Plaintiffs are employees or independent contractors. IV. CONCLUSION: THE DECERTIFICATION MOTION SHOULD BE DENIED AND THE CLASS SHOULD BE CERTIFIED The arguments raised by Defendants in support of their Motion for Decertification have been evaluated by two other courts, and have been rejected. For the reasons set forth above, Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 26 of 27 27 Plaintiffs respectfully request that Defendants’ Motion for Decertification be denied, that the Court order that the conditional class be permanently certified, and for such further relief as the Court deems appropriate. Respectfully Submitted, JONES, SNEAD, WERTHEIM & CLIFFORD, P.A. By: /s/ Jenny F. Kaufman JERRY TODD WERTHEIM SAMUEL C. WOLF JENNY F. KAUFMAN 141 E. Palace Ave., Suite 220 Post Office Box 2228 Santa Fe, New Mexico 87501 Tel. (505) 982-0011 Fax. (505) 989-6288 CERTIFICATE OF SERVICE I hereby certify that on January 25, 2018, I filed the foregoing document electronically through the CM/ECF system, which will send notification of such filing to all counsel of record to be served by electronic means, as more fully reflected on the Notice of Electronic Filing. /s/ Jenny F. Kaufman Jenny F. Kaufman Case 1:16-cv-00350-JCH-KK Document 168 Filed 01/25/19 Page 27 of 27