IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 Case :-cv-00-jws Document Filed 0/0/ Page of SUSAN MARTIN (AZ Bar No. 0 DANIEL BONNETT (AZ Bar No. 0 JENNIFER KROLL (AZ Bar No. 0 MARK A. BRACKEN (AZ Bar No. 0 0 N. Central Avenue, Suite 00 Phoenix, Arizona 00 Telephone: ( smartin@martinbonnett.com dbonnett@martinbonnett.com jkroll@martinbonnett.com mbracken@martinbonnett.com 0 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 0 DAVID COLLINGE, MELONIE PRIESTLY, and HEATHER ARRAS on behalf of themselves and all others similarly situated, vs. Plaintiffs, INTELLIQUICK DELIVERY, INC., an Arizona corporation; KEITH SPIZZIRRI and MIRIAM SPIZZIRRI, husband and wife; TRANSPORTATION AUTHORITY, LLC, a Nevada corporation; ROBERT F. LORGEREE, JR; MAJIK LEASING, LLC, an Arizona corporation, FELICIA TAVISON; JASON MITTENDORF; JEFFREY LIEBER, Defendants. CASE NO.: CV -00-JWS PLAINTIFFS REPLY IN FURTHER SUPPORT OF MOTION FOR EQUITABLE TOLLING OF THE STATUTE OF LIMITATIONS

2 Case :-cv-00-jws Document Filed 0/0/ Page of 0 0 Plaintiffs submit this reply in further support of Plaintiffs motion for an order tolling the statute of limitations for putative FLSA collective action members as of April, 0, the date of the filing of this lawsuit. Nowhere in their response (Doc. do Defendants dispute that upon threat of termination they have aggressively attempted to prevent current Drivers from learning about the lawsuit and how to join it. They do not deny that Plaintiff Collinge was threatened with termination if he was seen giving a consent to sue form to any other Driver. Nor do Defendants dispute that their prohibition against solicitation, distribution of materials of any kind, or participation in any advocacy of any kind was a direct attempt to thwart drivers rights to learn about their right to join this collective action. Defendants delay and wrongful efforts to intimidate and chill employees in the exercise of their rights to participate in this lawsuit and to prevent Drivers from gaining knowledge about the pendency of the lawsuit through communications with other Drivers provide ample grounds for granting the motion for equitable tolling of the statute of limitations. Shortly after this lawsuit was filed and in an obvious effort to defeat employees rights to learn about this case, Defendants implemented a patently unlawful no solicitation/no communication policy. That policy prohibits Drivers, who Plaintiffs claim have been misclassified as non-employees, from communicating with each other anywhere on Defendants property or in their vehicles on just about every topic: Non-employees must refrain from engaging in any solicitation, from distributing any materials of any kind or from participating in any advocacy of any kind or for any cause while on company property. (Collinge Declaration Dkt. - Exhibit D p. of. The policy defines Company property to include all real property owned, managed or occupied by the Company for any property [sic], including storage of materials and vehicles. (Id. Contrary to Defendants claims, (p. and as detailed below, Defendants newly promulgated no-solicitation policy is far from lawful. The policy was clearly promulgated in direct response to the filing of the complaint in this matter and therefore

3 Case :-cv-00-jws Document Filed 0/0/ Page of 0 0 violates FLSA, U.S.C. (a which prohibits an employer from discriminating against employees because they filed a complaint or participated in the lawsuit. In addition, Plaintiffs submitted evidence of numerous other instances of retaliatory misconduct, including: Advising at least one opt-in Plaintiff who had worked for Intelliquick that Intelliquick did not want him working at IntelliQuick. (Morena Decl.,, Dkt - at. Requiring Drivers who opted into this lawsuit to meet with Defendants separately and advising them that Intelliquick would terminate any Driver who handed out a consent to sue form; (Collinge // Decl. Dkt.. -, ; Approaching Plaintiff David Collinge, and John Morena and Bob Campagna, who had both filed consent to sue forms, and telling them to immediately stop talking to each other while allowing other Drivers who had not opted in to the lawsuit to continue speaking with each other (Collinge Decl., Doc. - at -; Campagna Decl. 0, Dkt. - at ; Morena Decl., - at ; Demanding that named Plaintiff, David Collinge, leave a Driver Recognition Night, (Dkt. - ; A talk by Defendant Keith Spizzirri to Drivers lasting over thirty minutes in which he attempted to discourage Drivers from joining the lawsuit, telling them if they were unhappy, they should just move on. (Collinge // Decl., Dkt. -. Plaintiffs showing of Defendants efforts to prevent knowledge of the lawsuit, intimidate Drivers from participating in the lawsuit and retaliate against Drivers who have joined this lawsuit is substantial. Further, Defendants now admit that they are expressly encouraging employees to opt out of the lawsuit, something Plaintiffs did not even know until Defendants filed their reply brief. Defendants overreaching conduct violates the See copy of webpage form available on Defendants multiple websites devoted to this lawsuit, including attached hereto as Exhibit requiring full contact information before the so-called opt-out form can even be accessed.

4 Case :-cv-00-jws Document Filed 0/0/ Page of 0 0 FLSA s retaliation provisions. In Ford v. Alfaro, F.d, - (th Cir., the Ninth Circuit held that an employer who advised an employee that he would get even with him for causing an investigation to be initiated by the Department of Labor and that he did not want the employee working for him anymore constituted violations of the FLSA s anti-retaliation provisions as a matter of law. Here, the no communication policy, targeting of employees who participated in this lawsuit and threats against such employees are clearly retaliatory under the FLSA See id. See also Gold Coast Rest. Corp. v. N.L.R.B., F.d, - (D.C. Cir. amended, -, WL (D.C. Cir. Oct., (upholding finding of unlawful retaliation and discrimination against employer under National Labor Relations Act and noting the finding that increased disciplinary action and the changes in work schedules began as soon as employees petitioned for an election.. Defendants insistence that Drivers not talk about this lawsuit under threat of termination substantially impairs the Drivers ability to learn about the lawsuit. Defendants actions constitute the sort of misconduct that warrants equitable tolling. See Weick v. O'Keefe, F.d, 0 (th Cir. (applying equitable tolling based on defendants deliberate misconduct ; Adams v. Inter-Con Sec. Sys., Inc., F.R.D. 0, (N.D. Cal. 00 ( The Supreme Court suggests that equitable tolling is properly applied to cases involving either defendants inducing delayed filings or faultless plaintiffs. The presence of both here makes equitable tolling appropriate. (citing Irwin v. Dep t of Veterans Affairs, U.S., (0. See also Wang v. Chinese Daily News, Inc., F.R.D., (C.D. Cal. 00 (invalidating opt-outs after coercive communications including posting of sign saying Don t Tear the Company Apart! Don t Act Against Each Other! and aggressive anti-union campaign, aff'd, F.d (th Cir. 00 cert. granted and judgment vacated on other grounds, S. Ct., (0; In Ford, the Ninth Circuit held that the courts look to the analogous antiretaliation provisions of the National Labor Relations Act to determine whether there was unlawful retaliation under the FLSA. F.d at.

5 Case :-cv-00-jws Document Filed 0/0/ Page of 0 0 Mevorah v. Wells Fargo Home Mortg., Inc., a div. of Wells Fargo Bank, C 0- MHP, 00 WL (N.D. Cal. Nov., 00 (finding defendant's pre-certification communications with potential class members were misleading, improper and coercive due to nature of employer-employee relationship. A ban on all solicitation while on company property has also been held to be over broad and a violation of Section of the NLRA. N.L.R.B. v. Chicago Metallic Corp., F.d, (th Cir. (recognizing that the NLRB has found bans on solicitation on company time and during non-working hours violate Section (a( of the Act. An employer may not issue a blanket prohibition on solicitation by employees at the work site, without special circumstances. N.L.R.B. v. Pneu Elec., Inc., 0 F.d, (th Cir. 00. Further, as set forth in Plaintiffs motion, tolling is also appropriate because Defendants have refused to provide class member contact information thereby impeding Plaintiffs ability to contact other Drivers. Mitchell v. Acosta Sales, LLC, --F.Supp.d--, No. CV --GAF, 0 WL0, * (C.D. Cal. 0 (granting equitable tolling based on defendant s failure to provide requested contact information because plaintiffs diligently pursued their legal rights and were without fault for the delay ; Adams v. Inter-Con Sec. Systems, Inc, F.R.D. 0, (N.D. Cal. 00 (court equitably tolled the statute of limitations where defendant refused to provide contact information: [E]quitable tolling counters the advantage defendants would otherwise gain by withholding potential plaintiffs' contact information until the last possible moment. Faultless potential plaintiffs should not be deprived of their legal rights on the basis of a In contrast to the no-solicitation policy here which is clearly retaliatory and designed to chill employees rights, in, Allison v. Frito-Lay, Inc., --C, WL (D. Kan. Mar., (cited by the Defendants at pp.,, there was no claim that the policy change was unlawful or retaliatory or that it was anything other than what the defendants claimed it was a positive change for the drivers to address their concerns. Id. at *. Rather, the question was whether the newly changed policy and settlement negotiations over that policy had lulled the employees into inaction. Allison presents a far different case than the one here.

6 Case :-cv-00-jws Document Filed 0/0/ Page of 0 0 defendant's delay, calculated or otherwise. ; Baldozier v. Am. Family Mut. Ins. Co., F.Supp.d 0, 0 (D. Colo. 00 (granting request to equitably toll to date of filing of complaint where defendant refused to provide contact information for former employees. Defendants concede that Plaintiffs promptly requested contact information. Defendants claim that tolling is not appropriate because no formal discovery request or motion to compel has been made is meritless because Defendants have failed to respond to a request to engage in a Rule (d( meeting. Defendants citation of Powers v. Centennial Communications Corp., 0-CV- 0-PPS, 00 WL (N.D. Ind. Feb., 00 has nothing to do with the facts of this case. There, the court found that the plaintiff herself contributed to the fourteenmonth time period preceding the Court's resolution of her motion to certify, in part through her motion to certify a question of state law to the Indiana Supreme Court and also due to her motion for reconsideration. Likewise, in Pendlebury v. Starbucks Coffee Co., 0-0-CIV, 00 WL 00 (S.D. Fla. Mar., 00 (cited by Defs. at pp. -, and contrary to Defendants claims, the plaintiffs never argued that that the defendants actions caused them to lose the ability to opt into the lawsuit. Here, Plaintiffs have diligently pursued this action. Plaintiffs seek tolling based on the totality of the circumstances present here, including a delay that is no fault of their own, Defendants refusal to provide contact information, Defendants efforts to delay these proceedings and their conduct that directly interferes with Drivers rights to learn about the lawsuit and to join it. Under Rule (d( of the Federal Rules of Civil Procedure, discovery may not commence until the parties have had a Rule conference. Plaintiffs asked Defendants to engage in a Rule (f conference, but Defendants have not responded. Defendants never responded to Plaintiffs request for the list of employees at all but now appear to claim that they might not have all the information sought by Plaintiffs. However, as part of their collective action certification motion, Plaintiffs requested that Defendants provide employees the last known addresses and IntelliQuick opposed that motion without ever claiming that they were unable to provide the information.

7 Case :-cv-00-jws Document Filed 0/0/ Page of 0 0 Defendants hyperbolic claims about Plaintiffs website are devoid of substance and meritless. Defendants do not cite a single case where the existence of a plaintiff s website was deemed relevant in determining a request for equitable tolling or mitigating a defendant s misconduct, threats and intimidation. Further, Defendants fail to cite even one statement on the website that is allegedly defamatory, damaging highly inflammatory or that cas[ts] IntelliQuick in an unfairly (sic negative light. (Defs Br. p.. To the contrary, Plaintiffs website sets forth accurate representations, pleadings and other factual information about the litigation. Similarly Defendants claim that equitable tolling should be denied because no individual has come forward explaining why he or she was deprived of an opportunity to opt-in to this lawsuit or has in any way been damaged by the conduct of IntelliQuick Defendants or any other party (Dkt. p., truly misses the point. Defendants have impeded the legitimate dissemination of the existence of the lawsuit and have threatened and intimidated Drivers with termination. It is precisely for these reasons, coupled with Defendants improper delay and refusal to provide contact information that make equitable tolling appropriate under the totality of circumstances. CONCLUSION For the foregoing reasons and the reasons set forth in Plaintiffs motion, Plaintiffs respectfully request that the motion to equitably toll the statute of limitations be granted and that the Court order such other and further relief as it deems appropriate. /// /// /// Plaintiffs responded to a so-called warning from Defendants about the website two months ago, on May, 0, explaining, inter alia, that the website posts information about a pending lawsuit that is already public information and informs individuals how to obtain more information about both the lawsuit and their rights Plaintiffs invited Defendants to personally contact Plaintiffs counsel to discuss the website if they still had issues. Defendants have never done so.

8 Case :-cv-00-jws Document Filed 0/0/ Page of Respectfully submitted this th day of July, 0. MARTIN & BONNETT, P.L.L.C. By: s/susan Martin Susan Martin Daniel Bonnett Jennifer Kroll Mark Bracken 0 N. Central Avenue, Suite 00 Phoenix, Arizona 00 Telephone: ( Attorneys for Plaintiffs 0 0

9 Case :-cv-00-jws Document Filed 0/0/ Page of 0 CERTIFICATE OF SERVICE I hereby certify that on July, 0, I electronically transmitted the attached document to the Clerk s Office using the CM-ECF System for filing and transmittal of a Notice of Electronic filing CM-ECF registrants: Mark Ogden, Esq. Laurent R.G. Badoux, Esq. Jeffrey S. Judd, Esq. Juliet Burgess, Esq. Littler Mendelson, P.C. East Camelback Road, Suite 00 Phoenix, AZ 0 Attorneys for Defendants Intelliquick Delivery Inc., Keith Spizzirri, Miriam Spizzirri, Majik Leasing, LLC, Felicia Tavison, Jason Mittendorf, and Jeffrey Lieber. s/kathy Pasley 0