10 “In determining when an action is commenced by the Secretary of Labor under this subsection for the purposes of the statutes of limitations provided in section 6(a) of the Portal-to-Portal Act of 1947 [29 U.S.C. 255(a)], it shall be considered to be commenced in the case of any individual claimant on the date when the complaint is filed if he is specifically named as a party plaintiff in the complaint, or if his name did not so appear, on the subsequent date on which his name is added as a party plaintiff in such action.” 29 U.S.C. § 216(c); 29 C.F.R. § 790.21(b). Case 3:15-cv-02776-WHA Document 70 Filed 08/08/16 Page 23 of 28 R o p e rs M a je sk i K o h n & B e n tl e y A P ro fe ss io n a l C o rp o ra ti o n R e d w o o d C it y 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4822-6981-9957.1 - 19 - DEFTS’ NOT & MOT.

13 Under the provisions of the FLSA, the statue of limitations is not tolled for any individual until that individual has filed a written consent to join the action with the court. 29 C.F.R. § 790.21(b)(2). Thus, in order to protect the interests of the collective action members, prompt dissemination of notice is essential.

13 Under the provisions of the FLSA, the statue of limitations is not tolled for any individual until that individual has filed a written consent to join the action with the court. 29 C.F.R. § 790.21(b)(2). Thus, in order to protect the interests of the collective action members, prompt dissemination of notice is essential.

Here, Plaintiff makes no showing that NutriSystem’s conduct was “willful.” • The limitations period should run for two years from the date that the Notice is issued, not the date the Amended Complaint was filed, because the limitations period is tolled only when the “consent to join” form is filed with the Court. See 29 U.S.C. §§ 255, 256; 29 C.F.R. § 790.21(b)(2). 29 • The Notice should provide potential opt-ins with sixty days to respond from the date of mailing, as opposed to one-hundred and twenty, because the shorter length of time is appropriate where, as here, the Sales Associates are in one location.

The statute of limitations is not tolled for any individual class member until that individual has filed a written consent to join form with the court. 29 C.F.R. § 790.21(b)(2). The information contained in a notice form is, therefore, important to allow a prospective plaintiff to understand his or her interests and a collective action hinges on “employees receiving accurate and timely notice concerning [its] pendency [. . .], so that they can make informed decisions about whether to participate.”

Furthermore, the limitations period should run for two years from the date that the Notice is issued, not the date Plaintiff’s SAC was filed, because, as set forth supra, the limitations period is tolled only when the “consent to join” form is filed with the Court –a statutory requirement that Plaintiff has failed to satisfy here. See 29 U.S.C. §§ 255, 256; 29 C.F.R. §790.21(b)(2). 2.