Case 2:12-cv EEF-SS Document 42 Filed 12/11/12 Page 1 of 12 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA. Defendants.

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1 Case 2:12-cv EEF-SS Document 42 Filed 12/11/12 Page 1 of 12 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ERIC NDITA, both individually and on behalf of all other similarly situated persons, v. Plaintiff, AMERICAN CARGO ASSURANCE, LLC, VIP CHEMICAL, INC., ACCUTRANS, INC., and GARY OSORNO, Defendants. CIVIL ACTION NO.: 2:12-cv SECTION: MAGISTRATE: JUDGE: L Shushan Fallon REPLY BRIEF IN SUPPORT OF PLAINTIFF S MOTION TO CONDITIONALLY CERTIFY A FLSA COLLECTIVE ACTION AND SEND NOTICE TO THE CLASS Respectfully Submitted, /s/ Edward Tuddenham Edward Tuddenham (Admitted Pro Hac Vice) Michael J.D. Sweeney (Admitted Pro Hac Vice) GETMAN & SWEENEY, PLLC 9 Paradies Lane New Paltz, NY (845) msweeney@getmansweeney.com Attorneys for Plaintiffs

2 Case 2:12-cv EEF-SS Document 42 Filed 12/11/12 Page 2 of 12 In their opposition to Plaintiff Ndita s motion for conditional certification and notice to the class, Defendants ask the Court to apply the wrong legal standard to the first-step certification process and to take other actions designed to impede the class ability to make informed and timely decisions regarding their claims. The Court should decline the invitation to deviate from well-established legal principles of law regarding the FLSA and the First Amendment. I. DEFENDANTS ASK THIS COURT TO ADOPT AN INCORRECT LEGAL STANDARD. Defendants are wrong when they claim that to conditionally certify the class, the Court must conclude that Ndita and the putative plaintiffs are similar situated with regard to job requirements, assignments, management and compensation packages. This standard is unsupported by the cases Defendants cite and is inconsistent with the standard recognized in this Circuit. Courts around the country, in this Circuit, and in this District hold that the standard for conditional certification and notice is a modest factual showing that the class was subject to the same illegal pay policy. See Mooney v. Aramco Services Co., 54 F.3d 1207, 1214 (5th Cir. 1995); Lang v. DirecTV, Inc., 10 Civ. 1085, 2011 WL , at *7 (E.D.La. Dec. 30, 2011). Plaintiffs have met the standard for conditional certification by alleging a common illegal pay policy that applied to the entire class: Defendants did not pay their inspection staff overtime wages. Defendants own policy statements admit that as the inspection staff works varying hours per week, ACA does not pay overtime. However in lieu of overtime, the inspector s salary will be adjusted on a per job basis... Doc. 19-3, Exhibit A to Ndita Declaration ( Inspector Compensation Policy ). Where the class is subject to a common illegal pay policy, differences in where inspection staff worked, their schedules, how much they made, who their managers

3 Case 2:12-cv EEF-SS Document 42 Filed 12/11/12 Page 3 of 12 were, or in their job duties do not prevent conditional certification. See, e.g., Realite v. Ark Restaurants Corp., 7 F. Supp. 2d 303, (S.D.N.Y. 1998) (Sotomayor, J.) (granting conditional certification to employees at multiple restaurant locations, who collectively held positions as waiters, porters, dishwashers, cooks, back-waiters, bartenders, runners, pizza makers, busboys, and security guards); see also, Castillo v. P&R Enterprises, Inc., 517 F. Supp. 2d 440, at 446 (D.D.C. 2007) (conditionally certifying collective action claims that class members have different duties and different job titles because plaintiffs had made an initial showing that they and potential plaintiffs were allegedly victims of a common policy or plan that violated the law ); Zaniewski v. PRRC Inc., 848 F. Supp. 2d 213, 224 (D. Conn. 2012) ( The fact that the employees in the putative class performed different functions does not bar conditional certification. All of the employees who performed different functions were subjected to the same alleged unlawful policy that violated the FLSA. ); Heldman v. King Pharmaceuticals, Inc., , 2011 WL , *3 (M.D. Tenn. Feb. 2, 2011) ( Defendant also argues that, contrary to Plaintiff's assertions, hospital representatives and retail representatives have significantly different job duties at this stage of the certification process, the Court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations ); Braun v. Superior Industries Intern., Inc., JWL, 2010 WL , *4 (D. Kan. Sept. 28, 2010) ( The proposed class need not be limited to certain job titles or job duties when plaintiffs theory is that all non-exempt employees-regardless of job title or duties-were required to perform pre-and post-shift work without compensation. ); Garza v. CTA, No , 2001 WL , *3 (N.D. Ill. May 8, 2001) ( That the plaintiffs and other potential plaintiffs may have different jobs... [and] earn 2

4 Case 2:12-cv EEF-SS Document 42 Filed 12/11/12 Page 4 of 12 different amounts of money... does not mean that they are not operating under the same policies that allegedly entitle them to overtime pay. ). Plaintiffs position is bolstered by cases around the country that have conditionally certified FLSA collective actions brought by oil, gas, and chemical inspectors employed in the industry to challenge employer policies against paying overtime. See, Barnard v. Intertek USA, Inc., No. H , 2012 WL at *3 (S.D. Tex. Aug. 2, 2012) (order granting summary judgment to plaintiff and noting previous order certifying FLSA class of oil, gas and chemical inspectors); Brumley v. Camin Cargo Control, Inc., No , Doc. 58, Consent Order (D.N.J. March Oct. 16, 2010) (approving consent order for settlement of FLSA claims conditional certification on behalf of class of oil inspectors and sending notice); Brantley v. Inspectorate America Corp., 821 F.Supp.2d 879 (S.D. Tex. 2011) (order granting summary judgment on behalf of FLSA class of oil inspectors and noting that class certification had been granted); Elliott v. Amspec Services, LLC, No. 10 CV 6575, 2011 WL (D.N.J. Nov. 29, 2011) (order certifying collective action on behalf of oil inspectors); Ayers v. SGS Control Services, Inc., 3 Civ 9077, 2007 WL (S.D.N.Y. Feb. 27, 2007) (order denying decertification of FLSA collective action on behalf of oil inspectors). II. THE COURT SHOULD NOT WEIGH THE MERITS OF PLAINTIFFS CLAIMS AT THIS STAGE Because discovery has not taken place at this first stage of the collective action certification process, Courts do not weigh the merits of Plaintiff s substantive claims. McKnight v. D. Houston Inc., 756 F.supp.2d 794, 802 (S.D.Tex. 2010) (at the conditional certification stage courts do not assess the merits of the claim by deciding factual disputes or making credibility determinations ); Cohen v. Gerson Lehrman Group, 686 F.Supp.2d 317, 326 (S.D.N.Y. 2010) 3

5 Case 2:12-cv EEF-SS Document 42 Filed 12/11/12 Page 5 of 12 (at the notice stage the court does not resolve factual disputes, decide ultimate issues on the merits, or make credibility determinations. ). To do so would require Plaintiff to prove his case before he has had an opportunity to conduct discovery. Defendants have the opportunity to challenge the merits of the claims after discovery is complete. Lang, 2011 WL at *5 ( If conditional certification is granted, the case then proceeds through discovery as a class action to the merits stage, at which time the defendants may move for decertification. ) Despite this well-established standard, Defendants ask the Court to weigh the parties testimony and release certain defendants. The law is clear that several corporate entities or individuals can jointly employ workers under the FLSA. 29 C.F.R Plaintiffs have testified that they are employed by all the Defendants, including Accutrans. Doc. 19-3, Ndita Declaration 2. Defendants own pay policy clearly says that it is a VIP-ACA policy not to pay inspectors overtime, therefore it is unquestionable that inspectors for those two entities are similarly situated. Plaintiff has also alleged in the Complaint that Accutrans issued the employee handbook for inspectors, Doc. 1, Complaint, 19, which taken as true, strongly suggests that Accutrans developed and controlled the pay policies applicable to the class. Defendants own testimony shows that the President of Accutrans is the owner of ACA. Doc. 37-2, Gary Osorno Affidavit, 1, 2. Unable to argue that Plaintiffs have not met the required modest factual showing, Defendants offer their own testimony regarding each corporate Defendants status as an employer and ask the Court to believe them over Plaintiffs testimony. But courts are consistent that ruling on the joint-employer status of Defendants is more appropriate at the second stage, after discovery has occurred. Lang, 2011 WL at *3 (holding that fact questions regarding whether an employment relationship exists should be left to the second stage); Aguilar v. 4

6 Case 2:12-cv EEF-SS Document 42 Filed 12/11/12 Page 6 of 12 Complete Landscultpure, Inc., No. Civ.A.3:04 CV 0776 D, 2004 WL (N.D. Tex. Oct. 7, 2004) (factual issues regarding joint employment should be resolved at the second stage of FLSA class certification). To rule on joint-employer status at this stage, before discovery, would prejudice the Plaintiffs and be improper. The focus at this stage is on whether the Plaintiff has made a modest factual showing that he and other oil inspectors were subject to a common policy that violated the FLSA. In this case it is clear that Defendants did not pay overtime to their inspection staff. Defendants evidence with respect to the corporate defendants is irrelevant. Conditional certification phase is not an appropriate place to weigh facts or merits of each party s position. III. THE COURT SHOULD APPROVE PLAINTIFF S PROPOSED NOTICE Ndita s form of notice is appropriate and similar notices have been approved in this District. See, e.g., Camp v. Progressive Corp., No. Civ.A , 2002 WL (E.D.La. Nov. 8, 2002). The Court should reject Defendants objections to the Notice because they are designed to discourage participation in the action rather than provide meaningful notice to the class. Defendants first objection that the proposed Notice does not include their specific defenses is irrelevant because the notice clearly states that Defendants deny that they violated federal law or that they owe overtime wages. The description in the proposed Notice allows class members to make an informed decision about whether they were subject to the alleged policies knowing that Defendants deny the allegations. Plaintiff s proposed notice is intended to be short and readable to lay persons who may not understand complex legalese such as Defendants affirmative defenses. Allowing language regarding Defendants applicable defenses and/or affirmative defenses would only confuse potential opt-in plaintiffs. Courts routinely 5

7 Case 2:12-cv EEF-SS Document 42 Filed 12/11/12 Page 7 of 12 approve Plaintiff s proposed language. See, e.g., Moore v. Eagle Sanitation, Inc., 276 F.R.D. 54, 61 (E.D.N.Y. 2011) (approving language of [t]he defendants, deny the allegations made by the plaintiffs, and deny that they are liable to plaintiffs for any back pay, damages, costs or any attorneys fees sought and finding that [a]ny further elucidation of legal arguments will likely confuse potential opt-in plaintiffs ); Gomez v. H & R Gunlund Ranches, Inc., CV F LJO MJS, 2010 WL , *10 (E.D. Cal. Dec. 16, 2010) (requiring notice to include sentence [defendant] denies all of the allegations in the lawsuit and denies that it owes or that plaintiffs are entitled to any other compensation or damages. ); Austin v. CUNA Mut. Ins. Soc., 232 F.R.D. 601, 608 (W.D. Wis. 2006) (approving language of [defendant] denies that it violated the Fair Labor Standards Act. ). Defendants second and fourth objections, that the notice is misleading with respect to representation and Defendants counsel s contact information should be included in the notice, are both meritless and unsupported by law. Defendants concede that the proposed notice contains language that clearly says opt-in plaintiffs have the option to obtain their own legal counsel. Doc. 37, Def. Opp. Br Defendants demand that another section be included identifying Defendants counsel s contact information is both unnecessary and potentially confusing. Defense counsel has no part in distributing notice or collecting consent forms, and inclusion of more lawyers on notice merely increases the chance for confusion by notice recipients. Cryer v. Intersolutions, Inc., No , 2007 WL , *4 (D.D.C. Apr. 7, 2007) (holding that court saw no reason to include defense counsel on the notice as [d]efense counsel does not play a role in managing the distribution of the notice or the gathering of consent forms. ); Kelly v. Bluegreen Corp., 256 F.R.D. 626, 632 (W.D. Wis. 2009) (holding that adding defense counsel s contact information is both unnecessary and inappropriate ); Gambo v. Lucen Tech., Inc.,

8 Case 2:12-cv EEF-SS Document 42 Filed 12/11/12 Page 8 of 12 WL (N.D. Ill. Dec. 22, 2005) (finding that there was no law or logic supporting the defense counsel s request to include their contact information). Indeed, it makes no sense for putative class members to seek information from Defendants counsel and in fact it creates a real risk of creating a confusing and conflicting situation. See Perry v. Nat l City Mortg., Inc., 2007 WL , at *4 (S.D. Ill. June 21, 2007) (denying defendants request to give opt-in plaintiffs the option of contacting defense counsel for information because of an obvious and inherent conflict of interest. ). Defendants third objection, that the Notice should contain some warning that opt-ins may have to participate in discovery, is designed to discourage participation in the collective action. Courts have regularly ordered notice without such language. As one District Court explained: Such language is unnecessary and inappropriate. As Plaintiffs note, individualized discovery is rarely appropriate in FLSA collective actions Including a warning about possible discovery when that discovery is unlikely will serve no purpose other than deterring potential plaintiffs from joining the suit based on unfounded concerns about the hassle of discovery. See Prentice v. Fund for Public Interest Research, Inc. C SC, 2007 WL , *5 (N.D. Cal. Sept. 18, 2007). See also, Schwerdtfeger v. Demarchelier Management, Inc., 10 Civ. 7557(JGK), 2011 WL , *6 (S.D.N.Y. June 6, 2011); Garcia v. Pancho Villa s of Huntington Village, Inc., 678 F. Supp. 2d 89, (E.D.N.Y. 2010); Delaney v. Geisha NYC, LLC, 261 F.R.D. 55, 59 (S.D.N.Y. 2009); Wren v. RGIS Inventory Specialists, C JCS, 2009 WL , *2 (N.D. Cal. June 17, 2009). The class and collective action discovery obligations are unclear at this point, and almost all of the relevant discovery is in Defendants possession, e.g., records of Plaintiffs work and pay and Defendants overtime policy. The only 7

9 Case 2:12-cv EEF-SS Document 42 Filed 12/11/12 Page 9 of 12 individual discovery issue is a damages issue, i.e., the actual hours that class members worked. Class members role in that discovery and how it will be conducted is undetermined at this time. Therefore, inclusion of language regarding discovery obligations is unnecessary and serves only to discourage participation. Defendants request for 30-day opt-in period is contrary to the typical 60-day opt-in period for a FLSA collective action. See Guillory v. PF & B Management, LP, Civil Action No. H , 2012 WL , *6 (S.D.Tex. Sept. 14, 2012) (granting a 60-day opt-in period); Schatte v. Trivera, LLC, Civil Action No. 4:11 CV 2459, 2012 WL , * 2 (S.D.Tex. Sept. 13, 2012) (same). Some courts in this Circuit have even allowed for longer opt-in periods. See Baricuatro v. Industrial Personnel and Management Services, Inc., Civil Action No , 2012 WL , *2 (E.D.La. Nov. 29, 2012) (allowing 90 day opt-in period); Black v. Settlepou, P.C., Civil Action No. 3:10 CV 1418 K, 2011 WL , * 6 (N.D.Tex. Feb. 14, 2011) (granting 90 day opt-in period); Camp v. Progressive Corp., No. Civ.A , 2002 WL , *7 (E.D.La. Nov. 8, 2002) (granting 120 day opt-in period). A 60-day period strikes a balance between the need to establish a cut-off for joinder that allows the case to proceed and a reasonable amount of time for class members to receive notice, gather information, and make an informed decision. In Counsel s experience, 30 days is simply too short an opt-in period that results in unnecessary motions to include people who seek to join after the 30-day period has run and unnecessary secondary actions. Defendants argument that Plaintiff s Counsel has been engaging in solicitation of putative Class Members is unwarranted and is an inappropriate reason to shorten the opt-in period. Plaintiff s Counsel has not sent any mailings or s to putative Class Members. As explained in Plaintiff s Opposition to the Motion to Remove Wepage (Doc. 36), Plaintiff s 8

10 Case 2:12-cv EEF-SS Document 42 Filed 12/11/12 Page 10 of 12 Counsel maintains a webpage that provides information about this case, including how putative Class Members can opt-in. The webpage is a passive device and was never intended to be, nor is it, a substitute for court approved notice. Even if Plaintiff s counsel had directly contacted inspection staff, this alone would not preclude court-approved notice. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989) (upholding district court s supervision of notice even after Plaintiffs had mailed letters to class inviting them to join the action). Finally, Defendants ask the Court to allow them to submit their own form of notice, but they have had a full opportunity to do so and have not. Moreover, they have raised their objections with Plaintiff s notice in their opposition. Allowing Defendants to submit a competing notice will only delay the notice and prejudice the class members. For all the above reasons, Plaintiff s notice should be approved as proposed. IV. THE COURT SHOULD NOT INTERFERE WITH COMMUNICATIONS BETWEEN COUNSEL AND PUTATIVE CLASS MEMBERS. Defendants ask the Court to restrict communications between counsel and putative plaintiffs that are protected by the First Amendment. A court can only limit such speech based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties. Gulf Oil Co. v. Bernard, 452 U.S. 89, (1981). Even where a court finds limitations on communications are warranted based on the record, any remedy must be carefully drawn [to limit] speech as little as possible. Id.; see also, Vogt v. Texas Instruments Inc., 3:05-CV-2244-L, 2006 WL , at *3 (N.D.Tex. Aug. 28, 2006) ( because of First Amendment concerns, courts must tailor any restrictions they impose upon a party's ability to communicate with absent class members. ) Defendants have not established clear record of a need for interfering with Plaintiff Counsel s First Amendment rights 9

11 Case 2:12-cv EEF-SS Document 42 Filed 12/11/12 Page 11 of 12 to communicate with opt-in Plaintiffs. Indeed, as Plaintiffs show in their Opposition to Defendants Motion to Remove Webpage, Defendants efforts to impugn Plaintiffs Counsel are baseless and designed for improper purposes. The Court should pay Defendants request to limit Plaintiffs Counsel s speech no heed. CONCLUSION The Court should apply the well-established legal principles regarding the FLSA and grant Ndita s motion to send notice to the class and approve the form of notice that he offers. The Court should also reject the Defendants attempts to keep the class from understanding their rights and becoming aware of the opportunity to seek to enforce them in this litigation. Date: December 10, 2012 Respectfully Submitted, /s/ Edward Tuddenham Edward Tuddenham (Admitted Pro Hac Vice) Michael J.D. Sweeney (Admitted Pro Hac Vice) GETMAN & SWEENEY, PLLC 9 Paradies Lane New Paltz, NY (845) msweeney@getmansweeney.com Attorneys for Plaintiffs 10

12 Case 2:12-cv EEF-SS Document 42 Filed 12/11/12 Page 12 of 12 CERTIFICATE OF SERVICE I hereby certify that on the 10th day of December, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of each such filing (Notice of Electronic Filing) to the following: Thomas J. Eppling (14255) Julie Steed Kammer (24656) 3500 North Causeway Boulevard, Suite 820 Metairie, LA Telephone: (504) Fax: (504) Attorneys for Defendants /s/ Edward Tuddenham Edward Tuddenham (Admitted Pro Hac Vice) GETMAN & SWEENEY, PLLC 9 Paradies Lane New Paltz, NY (845) msweeney@getmansweeney.com Attorneys for Plaintiffs