Rodriguez v. Hermes Landscaping, Inc.

REPLY TO RESPONSE TO MOTION

D. Kan.March 29, 2019

1 UNITED STATES DISTRICT COURT DISTRICT OF KANSAS ANTONIO CHAVEZ RODRIGUEZ, ISAAC CHAVEZ DUARTE, and JOSE ALFREDO SOTO SERVIN, on behalf of themselves and all others similarly situated, Plaintiffs, v. 2017-cv-02142-CM-KGG HERMES LANDSCAPING, INC., Defendant. REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS NOTICE AND FOR OTHER RELIEF For the reasons set forth in Plaintiffs’ initial Memorandum of Law and below, the Court should approve Plaintiffs’ proposed Class Notice as modified, approve Plaintiffs’ proposed method for distribution of the Class Notice, and appoint Kakalec Law PLLC and Dugan Schlozman LLC as class counsel in this case. Argument I. Plaintiffs’ counsel should be appointed as class counsel. On pages 5-6 of their opening Memorandum of Law, Plaintiffs argue that their attorneys should be appointed as class counsel pursuant to Federal Rule of Civil Procedure 23(g). As noted, the Court in its decision on class certification has already determined that class counsel is adequate to represent the class. Defendant does not argue against the appointment of class counsel in its response to Plaintiffs’ motion. For these reasons, class counsel should be Case 2:17-cv-02142-CM-KGG Document 92 Filed 03/29/19 Page 1 of 7 2 appointed. II. Plaintiffs modify their proposed Class Notice to further disclose their attorneys’ fees arrangement. Defendant argues that Plaintiffs’ proposed Class Notice should be modified to reflect the amount of Plaintiffs’ counsel’s contingency fee. (Def.’s Mem. at 4.) Plaintiffs do not object to including the contingency percentage provided for by Plaintiffs’ retainers in the Class Notice, and have done so in the amended proposed Notice attached hereto as Exhibit A. In that amended Notice, Plaintiffs have also clarified that amount of attorneys’ fees could alternatively be counsel’s earned fees if that amount is higher than 1/3 of a common fund. The Notice also reflects that costs will be reimbursed to Plaintiffs’ counsel and adds that the Court will determine the fairness of any fees to be awarded if Plaintiffs are successful in this action. III. The proposed Class Notice, as amended, should otherwise be approved, as should the process for distribution. The Court should reject Defendant’s other objections to the Notice and to the process for distribution. Because the Class Notice and process here are the best notice practicable under the circumstances, the Notice and process should be approved. Retaliation language. Defendant argues that the proposed Notice’s language stating “[y]ou should also know that it would be a violation of federal law for Hermes to discriminate against you or retaliate against you in any manner for taking part in this case” (emphasis in original) should be removed. While Defendant recognizes that this language “may be a true statement,” Defendant contends that the language is prejudicial because it implies that Defendant may take improper action. (Def.’s Mem. at 3.) Defendant also contends that other courts in the District of Kansas have agreed that similar language is prejudicial. While Defendant cites one case in which a court declines to include anti-retaliation language, these types of statements are not unusual in class notices. See, e.g., Foster v. Robert Case 2:17-cv-02142-CM-KGG Document 92 Filed 03/29/19 Page 2 of 7 3 Brogden's Olathe Buick GMC, Inc., No. 17-2095-DDC-JPO, 2018 WL 3633891, at *6 (D. Kan. July 31, 2018) (“The Plaintiff Class Notice [submitted by the parties] will state that … Defendant will not retaliate against any Plaintiff Class Member for participating in the settlement”) (notice of a FLSA collective action). In fact, the FLSA notice distributed in the present case included the following similar language: “You should also know that it would be a violation of federal law for Defendant to discriminate against you or retaliate against you in any manner for taking part in this case.” (See Notice of Collective Active Lawsuit, Ans. to Ques. 10) (Docket # 46-2) (attached hereto as Exhibit B) The contested language here simply serves to reassure class members – who this Court has already recognized are generally legally unsophisticated (Sept. 5, 2018 Order at 10, 11) (Docket #76) – that they will not face negative repercussions for participating in the case. There is no suggestion that Defendant has or is likely to engage in such conduct. Instead, the provision is addressed to class members’ potential fear in that regard and should be included in the final approved Notice. Defense counsel contact information. Defendant argues that defense counsel’s contact information should be included in the Class Notice, and that the Notice should “also inform class members that they may also contact defense counsel until the end of the opt-out period.” (Def.’s Mem. at 4.) Plaintiffs respond, however, the Class Notice should be approved as drafted – without defense counsel’s contact information or the requested language. As one court in this district has noted with regard to notice in a FLSA collective action, “[d]efense counsel does not play a role in managing the distribution of the notice or the gathering of consent forms. Including additional lawyers only creates the potential for confusion of those who receive the notice.” Wass v. NPC Int'l, Inc., No. 09-2254-JWL, 2011 WL 1118774, at *11 (D. Kan. Mar. 28, 2011) (citing Cryer v. Intersolutions, Inc., 2007 WL 1053214, at *3 Case 2:17-cv-02142-CM-KGG Document 92 Filed 03/29/19 Page 3 of 7 4 (D.D.C.2007). This same reasoning applies here. The inclusion of defense counsel’s information is not necessary as Plaintiffs’ counsel will receive any opt-out forms in this case. The addition of defense counsel’s information is unnecessary and potentially confusing, and should not be included. See Sloan v. Renzenberger, Inc., No. 10-2508-CM-JPO, 2011 WL 1457368, at *4 (D. Kan. Apr. 15, 2011) (finding that a notice of a FLSA action was “fair and accurate and … substantially similar to many previously approved by the court,” and overruling defendant’s objection that defense counsel’s phone number should be included in the notice to prospective class members). Reference to FLSA conditional certification. Defendants argue that the paragraph in the proposed Notice referring to the Court’s earlier conditional certification of this action as a FLSA collective action should be removed from the Notice, arguing that it is potentially confusing. (Def.’s Mem. at 2-3.) 1 The specific language at issue states: Earlier in this case, the Court conditionally certified this action as a collective action and allowed workers to opt-in to this case to pursue claims under the Fair Labor Standards Act (“FLSA”). Notice was sent about this conditional certification and some individuals opt-ed into the case to pursue their FLSA claims. The deadline has passed to opt in to pursue FLSA claims. The language Defendant challenges was inserted in the Notice to prevent confusion, not to confuse class members. Specifically, it was meant to clarify that this notice is a second, different notice than the first one, which went to many of the same individuals. The paragraph makes clear that the time to pursue FLSA claims has passed. To further clarify, Plaintiffs propose to edit the second sentence so that it reads “Notice was sent about this conditional certification to H-2B/H-2R workers who worked for Hermes at any time between 2014 and January 2018, and some individuals opt-ed into the case to pursue 1 Defendant also argues that this paragraph “improperly describes the nature of the classes certified” (Def.’s Mem.at 3) but fails to identify a specific problem with the description. Case 2:17-cv-02142-CM-KGG Document 92 Filed 03/29/19 Page 4 of 7 5 FLSA claims.” (See Exhibit A, page 1.) This would make clear that not all recipients of Class Notice would have received the earlier FLSA notice. With this modification, the language should stay in to provide important background information for class members. The best notice practicable here should include this provision. Posting at work site. Defendant argues that it should not be required to post the approved Class Notice at the work site, arguing that it redundant and unnecessary. However, the burden of posting here – which would apply to at most two locations and would be the posting of only 12 pages – is slight, and it is likely to increase the number of class members who see the notice. Defendant Hermes apparently brings back many of the same employees from Mexico to Kansas for work year after year, so many current employees are likely to be members of the class in this case. Posting at the worksite is much more likely to reach these H-2B workers working in Kansas than mailing to those employees’ permanent addresses in Mexico would. Under these circumstances, posting of the notice, in English and Spanish, is the best notice practicable. See Pinkston v. Wheatland Enterprises, Inc., No. 11-CV-2498, 2013 WL 1191207, at *5 (D. Kan. Mar. 22, 2013) (“Defendant objects to Plaintiff's request that Defendant post notice of this lawsuit in the workplace, arguing that posting is cumulative, overreaching, and likely to cause confusion among Defendant's employees. But posting two copies of the notice in a conspicuous location, likely to be seen by current drivers, is not burdensome, and the cumulative or overreaching nature of the posting is outweighed by the benefits of posting in ensuring that potential class members receive the necessary notice.”); Armstrong v. Genesh, Inc., No. 11- 1161-CM, 2011 WL 6151416, at *3 (D. Kan. Dec. 12, 2011) (requests including posting of notice are “reasonable and in accord with the relief that this court has granted in other cases granting conditional certification”); Sloan v. Renzenberger, Inc., No. 10-2508-CM-JPO, 2011 WL Case 2:17-cv-02142-CM-KGG Document 92 Filed 03/29/19 Page 5 of 7 6 1457368, at *4 (D. Kan. Apr. 15, 2011) (procedural requirements relating to notice, including posting, are “not unduly burdensome or unreasonable”).2 Conclusion For the reasons set forth above, the Court should grant Plaintiffs’ motion and order the relief sought. Dated: New York, NY March 29, 2019 /s Patricia Kakalec Patricia Kakalec KAKALEC LAW PLLC 85 Broad Street, 16th Floor New York, NY 10004 T: (212) 705-8730 Patricia@KakalecLaw.com DUGAN SCHLOZMAN LLC Heather Schlozman Mark Dugan 8826 Santa Fe Drive, Suite 307 Overland Park, Kansas 66212 T:(913) 322-3528 heather@duganschlozman.com mark@duganschlozman.com 2 Moreover, Defendant has been required to post the FLSA collective action notice at the worksite. (See May 1, 2019 Decl. of Patricia Kakalec, Ex. B, ¶ 6) (Docket #90-1.) (“Defendant will also post the Opt-In notice for a period of 90 days, in English and in Spanish, at its Shawnee, Kansas facility, in a location readily accessible for viewing by Putative Plaintiffs who are currently employed by Defendant.”) Case 2:17-cv-02142-CM-KGG Document 92 Filed 03/29/19 Page 6 of 7 1 CERTIFICATE OF SERVICE On the 29st day of March, 2019, I filed the foregoing using the Court’s CM/ECF filing system, which provided notice to the following: OGLETREE, DEAKINS, NASH, SMOAK & STEWART Patrick F. Hulla Justin M. Dean 4520 Main Street, Suite 400 Kansas City, MO 64111 T: (816) 271-1301 F: (816) 271-1303 Attorneys for Defendant /s/ Mark V. Dugan Case 2:17-cv-02142-CM-KGG Document 92 Filed 03/29/19 Page 7 of 7