The Fund Class Action - Motion For Certification

Case3:06-cv-07776-SC Document28

1 2 3 4 5 6 7

Filed05/18/07 Page1 of 23

David A. Lowe (State Bar #178811) John T. Mullan (State Bar # 221149) RUDY, EXELROD & ZIEFF, L.L.P. 351 California Street, Suite 700 San Francisco, CA 94104 Telephone: (415) 434-9800 Facsimile: (415) 434-0513 Email: [email protected] Email: [email protected] Attorneys for Plaintiffs

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

RUDY, EXELROD & ZIEFF, LLP.

11 12 13 14

RICHARD PRENTICE, CHRISTIAN MILLER, and TIFFINEY PETHERBRIDGE, on their own behalf and on behalf of classes of those similarly situated,

NOTICE OF MOTION AND MOTION FOR CONDITIONAL COLLECTIVE ACTION CERTIFICATION, HOFFMANN-LA ROCHE NOTICE, AND EQUITABLE TOLLING; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Plaintiffs,

15 16

vs.

17

FUND FOR PUBLIC INTEREST RESEARCH, INC.,

18

Case No. C-06-7776 SC

Defendants.

19 Date: Time: Court: Judge:

20 21

July 13, 2007 10:00 a.m. 1 Hon. Samuel Conti

22 23

/

24 25 26 27 28

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

NOTICE OF MOTION AND MOTION

1 2

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

3

NOTICE IS HEREBY GIVEN that on July 13, 2007, at 10:00 a.m., or as soon thereafter

4

as the matter may be heard, in Courtroom 1 of the Northern District of California, San Francisco

5

Division, located on the 17th Floor of 450 Golden Gate Ave., San Francisco, California,

6

Plaintiffs Richard Prentice, Christian Miller & Tiffiney Petherbridge (“Plaintiffs”), on behalf of

7

themselves and all others similarly situated, will move as follows, pursuant to the Fair Labor

8

Standards Act (“FLSA”), 29 U.S.C. §201 et seq., and Hoffmann-La Roche Inc. v. Sperling, 493

9

U.S. 165 (1989):

10

(1)

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

11 RUDY, EXELROD & ZIEFF, LLP.

Filed05/18/07 Page2 of 23

12

Conditional certification: That the Court conditionally certify this action as an FLSA collective action;

(2)

Mailing of notice: That the Court authorize the mailing of notice of the pendency

13

of this action to prospective FLSA collective action members, defined as all past,

14

present, and future employees of Defendant Fund for Public Interest Research,

15

Inc. who have been or will be classified as “Canvassers” or “Field Managers”

16

(collectively, “Covered Positions”), at any time between the earliest date covered

17

by the first pay date falling after December 19, 2003 and the filing date of the

18

Order granting this motion (collectively, “Covered Employees”);

19

(3)

Form of notice: That the Court approve the proposed notice of this action and the

20

proposed consent to join form, attached to the [Proposed] Order Granting

21

Plaintiffs’ Motion for Conditional Collective Action Certification, Hoffmann-La

22

Roche Notice, and Equitable Tolling Notice as Exhibits A and B respectively;

23

(4)

Contact information: That the Court order Defendant Fund for Public Interest

24

Research, Inc. to produce to Plaintiffs’ counsel the names, addresses and

25

telephone numbers of all Covered Employees; and that such information be

26

provided in Microsoft Excel format to Plaintiffs’ counsel 10 days after the date of

27 28

1

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

the Court’s order granting Plaintiffs’ Motion for purposes of sending notice;

1 2

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

(5)

Time period: That the Court order that all Covered Employees shall have 120

3

days from the date of the mailing of notice to mail their consents to join to

4

Plaintiffs’ counsel, and that Plaintiffs’ counsel shall have thirty (30) days after that

5

date to file written consents to join with the Court (without prejudice to Plaintiffs’

6

right to request that notice, and an opportunity to opt in, be provided at a later date

7

to individuals who become employed in Covered Positions after the filing date of

8

the Court’s order granting Plaintiffs’ Motion); and,

9

RUDY, EXELROD & ZIEFF, LLP.

Filed05/18/07 Page3 of 23

(6)

Equitable tolling: That the Court equitably toll the statute of limitations for all

10

Covered Employees from the date of the filing of the Complaint (December 19,

11

2006) through the date the Court sets as the deadline for consents to join to be

12

filed with the Court.

13 14 15 16 17 18 19 20

This motion is supported by Plaintiffs’ Memorandum of Points and Authorities, the Declarations of David A. Lowe, John T. Mullan, Richard Prentice, Christian Miller, Tiffiney Petherbridge, Michael Oehler, Lauren Steely, and Sarah Stein, and exhibits attached thereto; the [Proposed] Order Granting Plaintiffs’ Motion for Conditional FLSA Class Certification and Approval of Hoffmann-La Roche Notice and exhibits attached thereto (Notice and Consent to Join form) filed herewith; the other records, pleadings, and papers filed in this action; and upon such other documentary and oral evidence or argument as may be presented to the Court at the hearing of this motion.

21 22 23 24 25 26 27 28

2

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

Filed05/18/07 Page4 of 23

TABLE OF CONTENTS

1 2 3 4

I.

INTRODUCTION....................................................................................................1

II.

BACKGROUND......................................................................................................3 A.

5

Claims and Background .......................................................................................... 3

6

1.

Fund for Public Interest Research, Inc. ....................................................... 4

7

2.

All Canvassing Staff Have the Same Primary Job Duty ............................. 5

8

3.

Fund Has Treated All Canvassing Staff as a Class for Purposes of Denying Them Overtime Pay...................................................................... 6

9 10

III. A.

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

11 RUDY, EXELROD & ZIEFF, LLP.

DISCUSSION ..........................................................................................................6

12

The Court Should Grant Conditional Certification and Order Notice to the Class ........................................................................................................................ 6 1.

The Court Has Broad Discretion to Conditionally Certify a Class and Facilitate Notice.................................................................................... 6

2.

The Standard for Granting Conditional Certification and Class Notice is Very Lenient ................................................................................ 8

3.

Notice is Appropriate Because Plaintiffs are “Similarly Situated” to Other Canvassing Staff.............................................................................. 10

13 14 15 16 17

B.

Scope of the Class ................................................................................................. 13

18

C.

The Court Should Order and Approve Class Notice ............................................. 13

19

D.

Plaintiffs’ Proposed Form of Notice Should be Approved ................................... 14

E.

The Statute of Limitations Should Be Equitably Tolled ....................................... 14

20 21

IV.

CONCLUSION ......................................................................................................16

22 23 24 25 26 27 28

i

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

1

Filed05/18/07 Page5 of 23

TABLE OF AUTHORITIES

2 Page(s)

3 4

Adams v. Inter-Con Security System, Inc., No. C 06-05428 MHP, 2007 WL. 1089694 (N.D. Cal. Apr. 11, 2007) ..................... 7, 8, 13, 14

5 6 7 8 9 10

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

RUDY, EXELROD & ZIEFF, LLP.

11 12 13 14 15

Agdipa v. Grant Joint Union High Sch. District, No. Civ. S-06-1365 DFL DAD, 2007 WL. 1106099 (E.D. Cal. Apr. 10, 2007) ................ 8 Aguayo v. Oldenkamp Trucking, No. CV-F-04-6279 AWI LJO, 2005 WL 2436477 (E.D. Cal. Oct. 3, 2005) ...................... 9 Allen v. Marshall Field & Co., 93 F.R.D. 438 (N.D. Ill. 1982) ............................................................................................ 9 Avila v. Turlock Irrigation Dist., No. 1:06-CV-00050 OWW SMS, 2006 WL 3201083 (E.D. Cal. Nov. 6, 2006) ...................................................................... 9 Baldozier v. America Family Mutual Insurance Co., 375 F. Supp. 2d 1089 (D. Colo. 2005) ........................................................................ 14, 15 Ballaris v. Wacker, No. 00-1627, 2001 WL. 1335809 (D. Or. Aug. 24, 2001) .................................................. 9

16 17 18 19 20

Beauperthuy v. 24 Hour Fitness USA, Inc., No. 06-0715 SC, 2007 WL 707475 (N.D. Cal. Mar. 6, 2007) ...................................passim Bonilla v. Las Vegas Cigar Co., 61 F. Supp. 2d 1129 (D. Nev. 1999) ................................................................................. 10 Bothell v. Phase Metrics, 299 F.3d 1120 (9th Cir. 2002) ............................................................................................. 4

21 22 23 24 25 26

Brown v. Money Tree Mortgage, Inc., 222 F.R.D. 676 (D. Kan. 2004) ........................................................................................... 9 Camper v. Home Quality Management, Inc., 200 F.R.D. 516 (D. Md. 2000) ............................................................................................ 9 Chao v. A-One Medical Services, 346 F.3d 908 (9th Cir. 2003) ............................................................................................. 13

27 28

ii

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

1 2 3 4 5 6 7

Filed05/18/07 Page6 of 23

Coan v. Nightingale Home Healthcare, Inc., No. 1:05-CV-0101-DFH-TAB, 2005 WL. 1799454 (S.D. Ind. Jun. 29, 2005) ..................................................................... 9 Crawford v. Lexington-Fayette Urban County Government, No. 06-299-JBC, 2007 WL. 293865 (E.D. Ky. Jan. 26, 2007) ........................................... 9 Edwards v. City of Long Beach, 467 F. Supp. 2d 986 (C.D. Cal. 2006)..................................................................... 1, 2, 7, 9 Gerlach v. Wells Fargo & Co., No. C 05-0585 CW, 2006 WL. 824652 (N.D. Cal. Mar. 28, 2006).................. 8, 11, 12, 14

8 9 10

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

RUDY, EXELROD & ZIEFF, LLP.

11 12

Henchy v. City of Absecon, 148 F. Supp. 2d 435 (D.N.J. 2001).................................................................................... 15 Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989) ...................................................................................................passim Kane v. Gage Merchandising Services, 138 F. Supp. 2d 212 (D. Mass. 2001)................................................................................ 12

13 14 15 16 17 18 19 20

Klem v. County of Santa Clara, No. C-91-20674 RMW (PVT), 1996 WL 438801 (N.D. Cal. Apr. 1, 1996)................................................................. 13, 14 Morden v. T-Mobile USA, Inc., No. C05-2112R S. & M., 2006 U.S. Dist. LEXIS 68696 (W.D. Wash. Sep. 12, 2006) ............................. 1, 9, 10, 12 Owens v. Bethlehem Mines Corp., 630 F. Supp. 309 (S.D. W. Va. 1986) ................................................................... 14, 15, 16 Partlow v. Jewish Orphans' Home of Southern Cal., Inc., 645 F.2d 757 (9th Cir. 1981) ....................................................................................... 14, 15

21 22 23 24 25 26

Randle v. City of New Albany, No. 3:05CV74, 2006 WL 2085387 (N.D. Miss. Jul. 25, 2006) ........................................ 15 Reab v. Electronic Arts, Inc., 214 F.R.D. 623 (D. Colo. 2002) .......................................................................................... 9 Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474 (E.D. Cal. 2006)......................................................................................... 9

27 28

iii

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

1 2 3 4 5 6 7 8

Filed05/18/07 Page7 of 23

Shaffer v. Farm Fresh, Inc., 966 F.2d 142 (4th Cir. 1992) ............................................................................................... 1 Stanfield v. First NLC Finance Services, LLC, No. C 06-3892 SBA, 2006 WL 3190527 (N.D. Cal. Nov. 1, 2006) ................................... 9 Thiessen v. General Electric Capital Corp., 267 F.3d 1095 (10th Cir. 2001) ................................................................................. 7, 8, 10 White v. MPW Industrial Services, Inc., 236 F.R.D. 363 (E.D. Tenn. 2006) ...................................................................................... 9 Williams v. Sprint/United Management Co., 222 F.R.D. 483 (D. Kan. 2004) ........................................................................................... 9

9 10

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

RUDY, EXELROD & ZIEFF, LLP.

11

Zhao v. Benihana, No. 01 Civ. 1297 (KMW), 2001 WL. 845000 (S.D.N.Y. July 5, 2001) ............................. 9 STATUTES, RULES AND REGULATIONS

12 13 14 15 16

29 U.S.C. §201 et seq ...........................................................................................................passim 29 U.S.C. §203(k)........................................................................................................................ 11 29 U.S.C. §§207 ............................................................................................................................ 1 29 U.S.C. §216(b).......................................................................................................... 1, 7, 12, 16 29 U.S.C. §§255 ............................................................................................................................ 2 29 U.S.C. §255(a).................................................................................................................. 12, 13 29 U.S.C. §256(b).................................................................................................................... 2, 14

17 18 19 20 21 22 23 24 25 26 27 28

iv

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

MEMORANDUM OF POINTS AND AUTHORITIES

1 2 3

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

I.

INTRODUCTION This is a proposed class action for unpaid overtime wages and liquidated damages under

4

the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§201 et seq. Plaintiffs Richard Prentice,

5

Christian Miller & Tiffiney Petherbridge (“Named Plaintiffs”) seek to represent a class of

6

Canvassers and Field Managers (“Canvassing Staff”) employed by Defendant the Fund for Public

7

Interest Research, Inc. (“Fund”), all of whom have been categorically misclassified by Fund as

8

“exempt” from overtime pay and denied overtime wages on that basis.

9

RUDY, EXELROD & ZIEFF, LLP.

Filed05/18/07 Page8 of 23

This motion is brought to protect the interests of the potential class members by providing

10

them with notice of this FLSA case and equitably tolling their FLSA claims for unpaid overtime

11

(which have not been not tolled simply by the filing of the complaint). Absent such notice and

12

tolling, potential class members’ FLSA rights will be prejudiced, the FLSA’s remedial purposes

13

frustrated, and judicial economies lost.

14

There is no other way to protect these important interests at this time: Plaintiffs do not

15

know potential class members’ identities, and Defendant has refused Plaintiffs’ requests to

16

provide this information or stipulate to tolling the statute of limitations on the potential class

17

members FLSA claims. As discussed below, the standard for granting the instant motion at an

18

early stage of the litigation is “lenient” and easily satisfied by Plaintiffs.

19

The FLSA mandates overtime pay for employees and expressly authorizes class (or

20

“collective”) actions to vindicate this right where the employees at issue are “similarly situated.”

21

29 U.S.C. §§207, 216(b). Because class members must affirmatively “opt in” to a FLSA

22

collective action, the Supreme Court has held that named plaintiffs in FLSA class actions may

23

have a court-approved notice sent to all “similarly situated” individuals with potential claims

24

informing them of the lawsuit and providing them with an opportunity to opt in.1 Hoffmann-La

25 26

1

Hoffmann-La Roche was an Age Discrimination in Employment Act case but applies equally to FLSA actions. See, e.g., Shaffer v. Farm Fresh, Inc., 966 F.2d 142, 147 n. 5 (4th Cir. 1992); Edwards v. City of Long Beach, 467 F. Supp.2d 986, 989-90 (C.D. Cal. 2006); Morden v. T-

27 28

1

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

1

Roche Inc. v. Sperling, 493 U.S. 165, 172-74 (1989). This notice procedure recognizes the

2

congressional policy favoring FLSA class actions, the benefits to the judicial system of such

3

actions, the need for employees to receive accurate and timely notice, and the benefits of early

4

judicial intervention and management. Hoffmann-La Roche Inc., 493 U.S. at 169-73. Moreover,

5

notice is critical to protect employees’ FLSA rights because, absent tolling, the statute of

6

limitations will continue to run on their claims until they opt in. 29 U.S.C. §§255, 256(b).

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

7

RUDY, EXELROD & ZIEFF, LLP.

Filed05/18/07 Page9 of 23

Following Hoffmann-La Roche, courts make an initial determination whether there are

8

“similarly situated employees” so as to warrant “conditional” class certification and class notice.

9

The standard for this determination is “lenient” and “typically results in conditional

10

certification.” Edwards v. City of Long Beach, 467 F. Supp.2d 986, 989-90 (C.D. Cal. 2006)

11

(internal quotes omitted); Beauperthuy v. 24 Hour Fitness USA, Inc., No. 06-0715 SC, 2007 WL

12

707475, *5 (N.D. Cal. Mar. 6, 2007) (plaintiff bears “very light burden”). This lenient standard

13

is particularly apt here, where class members are losing claims to the statute of limitations on an

14

ongoing basis under the status quo.

15

Plaintiffs easily meet their “very light burden” here. The central issue in the case is

16

whether the primary job duty of Canvassing Staff brings them within any of the narrow

17

exemptions from the FLSA’s overtime pay provisions, discussed below. Plaintiffs’ allegations,

18

declarations and pre-discovery evidence show that all Canvassing Staff have had the same

19

primary job duty of collecting signatures and soliciting donations for third-party non-profit and

20

advocacy groups. Also, Fund classifies all Canvassing Staff as exempt on a categorical, class-

21

wide basis, and denies all Canvassing Staff overtime pay under the same common plan. In its

22

Answer, Fund reaffirms the treatment of potential class members as being similarly situated. See

23

Answer, p.9 (affirmative defense that all potential class members are exempt). Indeed, Fund

24 25 26

Mobile USA, Inc., No. C05-2112RSM, 2006 U.S. Dist. Lexis 68696, *1 n.1 (W.D. Wash. Sep. 12, 2006).

27 28

2

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

1

alleges that its categorical classification of Canvassing Staff as exempt has been “reasonable” and

2

“in good faith,” id. p.10, further reaffirming that these employees are similarly situated for

3

purposes of the exemption issue. Based on this threshold, pre-discovery showing that there are

4

similarly situated employees, the Court should order conditional certification and class notice. In addition, the Court should grant Plaintiffs’ request for equitable tolling of the statute of

5 6

limitations. Potential class members, through no fault of their own, and due to Defendant’s

7

refusal to agree to notice, have been prevented from learning of this action and/or the need to

8

affirmatively opt-in in order to be included. Plaintiffs sought to avoid the need for this motion by asking Defendant for the names and

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

9

RUDY, EXELROD & ZIEFF, LLP.

Filed05/18/07 Page10 of 23

10

addresses of potential class members so Plaintiffs could notify them about the action and their

11

ability to opt in by filing consents to sue. Defendant denied the request. Declaration of David A.

12

Lowe, (“Lowe Dec.”), ¶¶5, 6. As an alternative means to avoid the motion, Plaintiffs asked

13

Defendant to stipulate to conditional certification and sending of notice and to toll the statute of

14

limitations. Defendant rejected these requests as well. Id. at ¶¶3, 6. Defendant’s refusal to

15

identify the potential class members, stipulate to the sending of notice or toll the statute of

16

limitations has left Plaintiffs with no alternative but to file the instant motion.

17

II.

BACKGROUND

18

A.

19

The Named Plaintiffs were employed by Defendant Fund for Public Interest Research as

Claims and Background

20

Canvassing Staff for some period of time within the FLSA statutory period.2 Declaration of

21

Christian Miller (“Miller Dec.”), ¶2; Declaration of Richard Prentice (“Prentice Dec.”), ¶2;

22

Declaration of Tiffiney Petherbridge (“Petherbridge Dec.”), ¶2. Plaintiffs allege that, under a

23

common plan and practice, Fund has misclassified Plaintiffs and thousands of other Canvassing

24

Staff who have performed substantially the same work as categorically “exempt” from the

25 26

2

The statute of limitations is three years or two years, depending on whether the employer’s violations are willful. Id. §255(a).

27 28

3

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

1

FLSA’s overtime-pay requirements, and, on that basis, has failed to pay them overtime wages for

2

their overtime hours. Plaintiffs’ Class and Collective Action Complaint (“Complaint”), ¶¶1-3,

3

14, 17, 21-23. Plaintiffs seeks to recover unpaid overtime wages and liquidated damages on their

4

own behalf, and also on behalf of a class of all other Fund Canvassers and Field Managers (and

5

employees holding predecessor or successor job titles for the same positions).3

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

6

RUDY, EXELROD & ZIEFF, LLP.

Filed05/18/07 Page11 of 23

Defendant alleges as affirmative defenses that Plaintiffs are exempt under the “outside

7

sales” exemption (Answer, p. 12), the “commissioned employee” exemption (Answer, p. 13)

8

and/or the “administrative and/or executive” exemptions (Answer, p. 13). However, regardless

9

of which exemption Defendant attempts to prove in this case,4 Plaintiffs and all Canvassing Staff

10

will be “similarly situated” for purposes of the exemption inquiry due to the fundamental

11

equivalence of their job duties, and the common types of constraints and policies that delimit

12

their sphere of responsibility and control how they perform their work.

13 14

1.

Fund for Public Interest Research, Inc.

Defendant Fund for Public Interest Research, Inc. is a nationwide organization which

15

contracts to perform canvassing work on behalf of other organizations. Declaration of John T.

16

Mullan (“Mullan Dec.”), ¶2 & Ex. A. It maintains offices in 38 cities nationwide, including an

17

office in San Francisco, California. Mullan Dec., ¶3, Ex. B. Utilizing Canvassing Staff,

18

Defendant Fund collects signatures and donations on behalf of third-party advocacy groups. Id.

19

at ¶4 & Ex. C; Prentice Dec., ¶5; Miller Dec., ¶5; Petherbridge Dec., ¶5; Declaration of Michael

20

Oehler (“Oehler Dec.”), ¶5; Declaration of Robert Rose (“Rose Dec.”), ¶5; Declaration of Lauren

21

Steely (“Steely Dec.”), ¶5; Declaration of Sarah Stein (“Stein Dec.”), ¶5.

22 23 24 25 26

3

Plaintiffs have also filed California and New York state claims for unpaid wages and related wage and hour law violations, which claims are not at issue in this motion. 4

FLSA exemptions are affirmative defenses which it is the employer’s burden to prove. They are “narrowly construed against employers and are to be withheld except as to persons plainly and unmistakenly within their terms and spirit.” Bothell v. Phase Metrics, 299 F.3d 1120, 1124-25 (9th Cir. 2002), internal quotes and alterations omitted.

27 28

4

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

2.

1

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

RUDY, EXELROD & ZIEFF, LLP.

2

Filed05/18/07 Page12 of 23

All Canvassing Staff Have the Same Primary Job Duty

Though Fund Canvassing Staff may canvass for different third-party advocacy groups,

3

and may do so in different locations throughout the country, they all have the same, common

4

primary job duty: that is, to canvass door to door or in public locations soliciting donations and

5

collecting signatures for third-party non-profit and advocacy organizations. Prentice Dec., ¶5;

6

Miller Dec., ¶5; Petherbridge Dec., ¶5; Oehler Dec., ¶5; Rose Dec., ¶5; Steely Dec., ¶5; Stein

7

Dec., ¶5. This remains true regardless of the location in which the Canvassing Staff are

8

working, and regardless of whether they held the title Canvasser or Field Manager. Prentice

9

Dec., ¶¶8, 9; Miller Dec., ¶¶8, 9; Petherbridge Dec., ¶¶8, 9; Oehler Dec., ¶8; Rose Dec., ¶8;

10

Steely Dec., ¶8; Stein Dec., ¶8. This point is further illustrated by the Fund’s “canvass jobs web

11

site,” which states --- without regard to location or third-party advocacy group at issue --- that the

12

“heart of the job is canvassing” and involves going “door-to-door,” or “into public places” to

13

canvass. Mullan Dec., ¶4 & Ex. C.5

14

Further, all Canvassing Staff have been required to adhere to the same types of policies,

15

procedures and training regarding how to canvass door to door or in public locations. Prentice

16

Dec., ¶¶7, 8; Miller Dec., ¶¶7, 8; Petherbridge Dec., ¶¶7, 8; Oehler Dec., ¶¶7, 8; Rose Dec., ¶¶7,

17

8; Steely Dec., ¶¶7, 8; Stein Dec., ¶¶7, 8.

18

to memorize a solicitation “script” and recite this script verbatim when soliciting door to door or

19

on street corners. Prentice Dec., ¶7; Miller Dec., ¶7; Petherbridge Dec., ¶7; Oehler Dec., ¶7;

20

Rose Dec., ¶7; Steely Dec., ¶7; Stein Dec., ¶7. As another example, all Canvassing Staff have

21

been subject to the common requirement of recording their canvassing results at the end of each

22

day. Prentice Dec., ¶5; Miller Dec., ¶5; Petherbridge Dec., ¶5; Oehler Dec., ¶5; Rose Dec., ¶5;

23

Steely Dec., ¶5; Stein Dec., ¶5.

For instance, all Canvassing Staff have been required

24 25 26

5

Of course Plaintiffs disagree with how the job postings characterize Canvassing Staff job duties. The point here is simply that the functions and responsibilities of all Canvassing Staff are essentially the same, regardless of how they are described.

27 28

5

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

3.

1

Filed05/18/07 Page13 of 23

Fund Has Treated All Canvassing Staff as a Class for Purposes of Denying Them Overtime Pay

2 Fund has classified all Canvassing Staff as a category as exempt from overtime pay.

3 4

Complaint, ¶¶1, 3, 21-23; Answer p.9; Prentice Dec., ¶4; Miller Dec., ¶4; Petherbridge Dec., ¶4;

5

Oehler Dec., ¶4; Rose Dec., ¶4; Steely Dec., ¶4; Stein Dec., ¶4. Fund has made a decision and

6

implemented a common policy to treat all of its Canvassing Staff as categorically “exempt” from

7

the FLSA’s overtime pay requirements. Complaint, ¶¶1, 3, 21-23; Answer p.9; Prentice Dec., ¶4;

8

Miller Dec., ¶4; Petherbridge Dec., ¶4; Oehler Dec., ¶4; Rose Dec., ¶4; Steely Dec., ¶4; Stein

9

Dec., ¶4.

10

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

RUDY, EXELROD & ZIEFF, LLP.

11 12 13

III.

DISCUSSION A.

The Court Should Grant Conditional Certification and Order Notice to the Class

It is both critical and proper that this action be conditionally certified as an FLSA

14

collective action and that potential collective action members be provided with notice of the

15

action and an opportunity to opt in. Notice is critical because potential collective action members

16

are unaware of the action and/or the opt in procedure, and as a result are losing claims for unpaid

17

overtime wages to the statute of limitations on an ongoing basis. Notice is proper because, at this

18

early, pre-discovery stage of the case, the initial pleadings, declarations and other pre-discovery

19

evidence show that Plaintiffs and all Fund Canvassing Staff are “similarly situated employees.”

20

That is, they all share the same core job duty; they have all been subject to Fund’s common

21

policy and practice of classifying all Canvassing Staff as a category as exempt on a class-wide

22

basis; and they all have been denied overtime pay as part of this common plan and practice.

23 24

1.

The Court Has Broad Discretion to Conditionally Certify a Class and Facilitate Notice

25

The FLSA expressly provides that an action to recover unpaid wages and liquidated

26

damages may be maintained “by any one or more employees for and in behalf of himself or

27

themselves and other employees similarly situated.” 29 U.S.C. §216(b). Unlike in a Rule 23 6 PLAINTIFFS’ MOTION FOR CONDITIONAL

28

CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

RUDY, EXELROD & ZIEFF, LLP.

Case3:06-cv-07776-SC Document28

Filed05/18/07 Page14 of 23

1

“opt out” class action, employees in an FLSA class action must affirmatively “opt in” by filing a

2

written consent with the court. Id. Until they actually opt in, class members remain subject to

3

the running of the statute of limitations. Id. §§255, 256(b). Potential class members who do not

4

opt in are not bound by the judgment. See, e.g., Adams v. Inter-Con Security Sys., Inc., No. C 06-

5

05428 MHP, 2007 WL 1089694, *2 (N.D. Cal. Apr. 11, 2007).

6

Where an employee maintains an action on behalf other similarly situated employees, the

7

action is regarded as an FLSA “class” or “collective” action. See, e.g., Thiessen v. General Elec.

8

Capital Corp., 267 F.3d 1095, 1102 & n.3 (10th Cir. 2001); Edwards v. City of Long Beach, 467

9

F. Supp.2d 986, 989 (C.D. Cal. 2006). “Although the FLSA does not require certification for

10

collective actions, certification in a §216(b) collective action is an effective case management

11

tool, allowing the court to control the notice procedure, the definition of the class, the cut-off date

12

for opting in, and the orderly joinder of the parties.” Edwards, 467 F. Supp.2d at 989-90 (citing

13

Hoffmann-La Roche v. Sperling, 493 U.S. 165, 170-72 (1989)). To this end, the Supreme Court

14

has “recognized the discretion of district courts to facilitate the process by which potential

15

plaintiffs are notified of FLSA collective actions into which they may be able to opt.”

16

Beauperthuy v. 24 Hour Fitness USA, Inc., No. 06-0715 SC, 2007 WL 707475, at *5 (N.D. Cal.

17

Mar. 6, 2007) (citing Hoffmann-La Roche, 493 U.S. at 486)).

18

In Hoffmann-La Roche, the Supreme Court identified the numerous considerations that

19

underlie and support sending notice to the class: the congressional policy that employees should

20

be able to proceed collectively in order to “lower individual costs to vindicate rights” and benefit

21

the judicial system “by efficient resolution in one proceeding of common issues of law and fact;”

22

the need for employees to receive accurate and timely notice of the pendency of the action in

23

order to achieve the intended benefits of collective action; the “wisdom and necessity for early

24

judicial intervention” in managing the litigation, ascertaining the contours of the action at the

25

outset, and regulating the notice and opt in process. 493 U.S. at 170-72. The Supreme Court

26

noted the deliberateness of congress’ decision to provide for collective actions, and emphasized

27

that, “[t]he broad remedial goal of the statute should be enforced to the full extent of its terms.” 7 PLAINTIFFS’ MOTION FOR CONDITIONAL

28

CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

1 2

Id. at 173. In cases for unpaid wages, the additional factor that heavily favors conditional

3

certification and class notice is that the statute of limitations is running on each employee’s

4

claims until he or she opts in. The running of the statute of limitations prejudices potential class

5

members by continually cutting off periods of past employment for which they might otherwise

6

be able to recover unpaid wages. See, e.g., Beauperthuy, 2007 WL 707475 at *7.6

7

2.

8

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

9

RUDY, EXELROD & ZIEFF, LLP.

Filed05/18/07 Page15 of 23

The Standard for Granting Conditional Certification and Class Notice is Very Lenient

After Hoffmann-La Roche, courts, including this Court, have utilized a two-stage process

10

for deciding whether to certify FLSA class actions. At the first stage the court determines

11

whether to conditionally certify a class and notify potential class members about how they can

12

preserve their rights by opting in. At the second stage, typically on the basis of a motion to

13

decertify filed after the close of discovery, the court determines whether the case should proceed

14

to trial on a class basis. See, e.g., Thiessen, 267 F.3d at 1106; Beauperthuy, 2007 WL 707475 at

15

*5. Only the first stage is at issue here.

16

At the notice stage, the court applies a relaxed standard to determine whether the

17

Plaintiffs’ allegations and any declarations support a preliminary finding that “similarly situated”

18

employees exist who might want to opt in. “The standard for certification at this stage is a

19

lenient one that typically results in certification.” Gerlach v. Wells Fargo & Co., No. C 05-0585

20

CW, 2006 WL 824652, *2 (N.D. Cal. Mar. 28, 2006); Adams, 2007 WL 1089694 at *4; Agdipa

21

v. Grant Joint Union High Sch. Dist., No. Civ. S-06-1365 DFL DAD, 2007 WL 1106099, *1

22

(E.D. Cal. Apr. 10, 2007); Avila v. Turlock Irrigation Dist., No. 1:06-CV-00050 OWW SMS,

23 24 25 26

6

As with other wages, overtime wages are generally due to be paid on a periodic basis. A separate FLSA violation occurs each time the employer does not pay overtime wages for a particular period on the date they are due. If the due date falls outside the statutory period, the employee cannot recover unpaid wages for the period of employment covered by that due date. Thus, as long as the statute is running, a given employee will continue to lose successive periods of employment to the statute of limitations.

27 28

8

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

1

2006 WL 3201083, *3 (E.D. Cal. Nov. 6, 2006); Stanfield v. First NLC Fin. Servs., LLC, No. C

2

06-3892 SBA, 2006 WL 3190527, *2 (N.D. Cal. Nov. 1, 2006); Edwards, 467 F. Supp.2d at 990;

3

Morden v. T-Mobile USA, Inc., No. C05-2112RSM, 2006 WL 2620320, *2 (W.D. Wash. Sep. 12,

4

2006); Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 482 (E.D. Cal. 2006); see

5

Beauperthuy, 2007 WL 707475, at *5 (“movant bears a very light burden”). Numerous courts have emphasized the minimal showing required at this stage, typically

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

6

RUDY, EXELROD & ZIEFF, LLP.

Filed05/18/07 Page16 of 23

7

consisting of only the allegations of the complaint and a small number of declarations, where

8

available. See, e.g., Romero, 235 F.R.D. at 482-83 (allegations and two declarations); Brown v.

9

Money Tree Mortgage, Inc., 222 F.R.D. 676, 680-81 (D. Kan. 2004) (same); Williams v.

10

Sprint/United Mgmt. Co., 222 F.R.D. 483, 487 (D. Kan. 2004) (allegations in complaint were

11

“more than sufficient to support provisional certification”); Reab v. Electronic Arts, Inc., 214

12

F.R.D. 623, 628 (D. Colo. 2002) (allegations in complaint); Allen v. Marshall Field & Co., 93

13

F.R.D. 438, 442-45 (N.D. Ill. 1982) (allegations in complaint); Ballaris v. Wacker, No. 00-1627,

14

2001 WL 1335809, *2 (D. Or. Aug. 24, 2001) (two affidavits); Camper v. Home Quality Mgmt,

15

Inc., 200 F.R.D. 516, 519-21 (D. Md. 2000) (two depositions and two declarations); Zhao v.

16

Benihana, No. 01 Civ. 1297 (KMW), 2001 WL 845000, **2-3 (S.D.N.Y. July 5, 2001) (one

17

affidavit based on plaintiff’s “best knowledge”); Aguayo v. Oldenkamp Trucking, No. CV-F-04-

18

6279 AWI LJO, 2005 WL 2436477, at *4 (E.D. Cal. Oct. 3, 2005) (O’Neill, M.J.) (allegations in

19

complaint and named plaintiff’s declaration); see also Beauperthuy, 2007 WL 707475 at *7

20

(eleven declarations); Morden, 2006 WL 2620320, *3 (evidence of comparable job descriptions

21

and uniform exempt classification).7

22

///

23 24 25 26

7

In addition, the Court may consider evidence that would be inadmissible at trial. Beauperthuy, 2007 WL 707475 at *7 n.5; Crawford v. Lexington-Fayette Urban County Govt., No. 06-299-JBC, 2007 WL 293865, **1-2 (E.D. Ky. Jan. 26, 2007); White v. MPW Indus. Servs., Inc., 236 F.R.D. 363, 367-68 (E.D. Tenn. 2006); Coan v. Nightingale Home Healthcare, Inc., No. 1:05-CV-0101-DFH-TAB, 2005 WL 1799454, *1 n.1 (S.D. Ind. Jun. 29, 2005); see also Aguayo, 2005 WL 2436477 at *4.

27 28

9

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

1

The lenient standard is particularly fitting here, where no discovery has been completed.

2

See, e.g., Thiessen, 267 F.3d at 1102 (where there has been no discovery, notice-stage

3

certification may be granted based on “nothing more than substantial allegations that the putative

4

class members were together the victims of a single decision, policy, or plan”) (internal

5

quotations and citations omitted); Bonilla v. Las Vegas Cigar Co., 61 F. Supp.2d 1129, 1139 n.6

6

(D. Nev. 1999) (requiring only “some factual nexus which binds the named plaintiffs and the

7

potential class members together as victims of a particular alleged [policy or practice]” (citations

8

omitted)); see also Morden, 2006 WL 2620320 at *3 (rejecting defendant’s reliance on

9

heightened standard applicable in cases where employees have been able to conduct substantial

10

discovery).

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

11 RUDY, EXELROD & ZIEFF, LLP.

Filed05/18/07 Page17 of 23

3.

Notice is Appropriate Because Plaintiffs are “Similarly Situated” to Other Canvassing Staff

12 13 14 15

Notice-stage certification is warranted here because Plaintiffs’ allegations and evidence are more than sufficient to satisfy the lenient first-stage “similarly situated” standard. Plaintiffs’ allegations, declarations and documentary evidence show that they and all

16

other Canvassing Staff have all had the same primary job duty of collecting signatures and

17

soliciting donations for third-party advocacy groups. Thus, Plaintiffs have made the requisite

18

threshold showing to support the conditional determination that all Canvassing Staff are

19

“similarly situated” with respect to what is expected to be the central issue in the case: whether

20

their job duties bring them within one of the narrow exemptions from the FLSA’s overtime pay

21

requirements.8

22

This is true regardless of which FLSA exemption Fund might try to prove. For example,

23

Plaintiffs have made a threshold showing that all Canvassing Staff are similarly situated with

24

respect to the duties relevant to the “outside sales” exemption, which requires that an employee

25 26

8

Of course, the merits of any exemption defense Defendant might plead are not to be adjudicated on a certification motion. See, e.g., Thiessen, 1106-07.

27 28

10

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

1

be engaged in making actual sales: See generally 29 U.S.C. §203(k); id. §213(a)(1); 29 C.F.R.

2

§541.500. Plaintiffs contend that Canvassing Staff’s uniformly-shared function of collecting

3

signatures and soliciting donations for various third party advocacy groups does not constitute

4

“making sales” within the meaning of the exemption. But what matters for purposes of this

5

Motion is Plaintiffs’ threshold showing that all Canvassing Staff are similarly situated for

6

purposes of resolving this issue.

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

7

RUDY, EXELROD & ZIEFF, LLP.

Filed05/18/07 Page18 of 23

As another example, Plaintiffs have made a threshold showing that all potential class

8

members are similarly situated with respect to the “administrative exemption,” which requires

9

among other things that an employee’s primary duty be the performance of work “directly related

10

to the management or general business operations of the employer, and that the employee’s

11

primary duty requires him or her to exercise “discretion or independent judgment” to make

12

significant business decisions. See generally 29 U.S.C. §213(a)(1); 29 C.F.R. §§541.200-

13

541.202. Plaintiffs contend that the Canvassing Staff’s uniform, core duty to collect signatures

14

and solicit donations for various third party advocacy groups using pre-approved scripts provided

15

by the Fund does not satisfy either part of this standard. But again, what matters for this Motion

16

is Plaintiffs’ notice-stage showing that all Canvassing Staff are similarly situated for

17

administrative exemption analysis.

18

In addition, Plaintiffs’ evidence and allegations establish that all Canvassing Staff are

19

similarly situated with regard to Fund’s common policy and practice of classifying all

20

Canvassing Staff as exempt from the FLSA on a categorical basis, and denying them overtime

21

pay on that basis. See Gerlach, 2006 WL 824652, at **6-7 (conditional certification appropriate

22

where putative class members “were together the victims of a single decision, policy or plan.”);

23

Complaint, ¶¶1, 3, 21-23; Answer p.9; Prentice Dec., ¶4; Miller Dec., ¶4; Petherbridge Dec., ¶4;

24

Oehler Dec., ¶4; Rose Dec., ¶4; Steely Dec., ¶4; Stein Dec., ¶4. This common policy and

25

practice not only attests to the essential similarity of all Canvassing Staff’s job duties for

26

purposes of the FLSA exemption analysis, but it also shows that all Canvassing Staff appear to be

27

similarly situated with respect to the cause of their failure to receive overtime pay, and with 11 PLAINTIFFS’ MOTION FOR CONDITIONAL

28

CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

1

respect to the issues of whether Fund’s FLSA violations have been willful and/or not committed

2

in good faith. See 29 U.S.C. §255(a) (FLSA statute of limitations extended to three years for

3

willful violations); id. §260 (if employer’s violations were in good faith and based on objectively

4

reasonable grounds, court may reduce the amount of, or not award, the liquidated damages

5

required by 29 U.S.C. §216(b)).

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

6

RUDY, EXELROD & ZIEFF, LLP.

Filed05/18/07 Page19 of 23

In Gerlach v. Wells Fargo, Judge Wilken noted that, “Plaintiffs meet their burden of

7

showing that all [potential class members] are similarly situated with respect to their FLSA

8

claim: all [potential class members] share a job description, were uniformly classified as exempt

9

from overtime pay by Defendants and perform similar job duties.” Gerlach, 2006 WL 824652 at

10

**8-9; see also Beauperthuy, 2007 WL 707475 at **6-7 (conditionally certifying class of

11

employees in misclassification case based on evidence and allegations regarding employees’ job

12

duties and uniform designation of employees as exempt under company policy); Morden, 2006

13

U.S. Dist. Lexis 68696 at **7-10 (conditionally certifying class of employees in misclassification

14

case based on minimal evidence of “comparable job descriptions” and uniform classification;

15

defendant’s arguments and extensive evidence regarding purported differences between class

16

members were “more appropriate” for a second-stage decertification determination); Kane v.

17

Gage Merchandising Servs., 138 F. Supp. 2d 212, 214-15 (D. Mass. 2001) (notice stage

18

certification appropriate where there was initial showing that employer classified group of

19

employees as exempt and did not pay them overtime). As described above, Plaintiffs’

20

declarations and other evidence demonstrates that the proposed class members all performed

21

similar job duties, whether they held the title of “Canvasser” or “Field Manager,” and were all

22

uniformly classified by Defendant as exempt from overtime.

23

B.

Scope of the Class

24

For purposes of conditional certification and notice, the class should be comprised of all

25

past, present, and future employees of Fund who have held the job title/job classification of

26

“Canvasser,” “Field Manager,” or any predecessor or successor job title/classification for the

27 28

12

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

1

same positions (collectively, “Covered Positions”).9 Notice should be sent to all people

2

employed in Covered Positions on or after the earliest date covered by the first Fund pay date that

3

falls within the three-year statutory period. For present purposes, Plaintiffs propose that the date

4

by which a person must have been employed in a Covered Position in order to be included in the

5

notice should be the date the Court files an order requiring Defendant to produce potential class

6

members’ names and contact information. The three-year statute of limitations for willful violations, 29 U.S.C. §255(a), is properly

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

7

RUDY, EXELROD & ZIEFF, LLP.

Filed05/18/07 Page20 of 23

8

applied at this stage because Plaintiffs allege that Fund’s FLSA violations have been willful

9

(Complaint, ¶¶18, 22-26) and may succeed in proving willfulness at trial. See, e.g., Adams, 2007

10

WL 1089694 at *10 (applying three-year statute where willful violations alleged); Beauperthuy,

11

2007 WL 707475, at *7 (same); Klem v. County of Santa Clara, No. C-91-20674 RMW (PVT),

12

1996 WL 438801, *1, *4 & n.9, *7 (N.D. Cal. Apr. 1, 1996) (same); see generally Chao v. A-One

13

Med. Servs., 346 F.3d 908, 918 (9th Cir. 2003) (willfulness standard is whether employer “knew

14

or showed reckless disregard for the matter of whether its conduct was prohibited”).

15

C.

16

The Court should order Fund to produce potential class members’ names and contact

The Court Should Order and Approve Class Notice

17

information to Plaintiffs’ counsel and approve the mailing of notice to all potential class

18

members. This is well-accepted procedure and is integral to the collective action procedure. See,

19

e.g., Hoffmann-La Roche, 493 U.S. at 168-70; Adams, 2007 WL 1089694 at *7; Gerlach, 2006

20

WL 824652 at *7; Klem, 1996 WL 438801 at *7.

21

///

22

///

23 24 25 26

9

Plaintiffs reserve the right to amend the Complaint and seek additional notice and an opportunity to opt in be provided at a later date to individuals who become employed in Covered Positions after the filing date of the Court’s order granting Plaintiffs’ Motion and/or to individuals who, it may be later determined, are indirectly employed or jointly employed by Fund.

27 28

13

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

RUDY, EXELROD & ZIEFF, LLP.

Case3:06-cv-07776-SC Document28

Filed05/18/07 Page21 of 23

1

D.

Plaintiffs’ Proposed Form of Notice Should be Approved

2

Plaintiffs propose a neutral and straightforward form of notice, which will inform

3

prospective Plaintiffs of their statutory opt-in rights. See [Proposed] Order, Ex. A. The proposed

4

notice explains the nature of the action and identifies Plaintiffs’ allegations. It makes clear that

5

the Court has not adjudicated the merits of the dispute, and that Fund denies any liability or

6

wrongdoing. The notice also identifies a website individuals can visit to obtain further

7

information. The notice provides Plaintiffs’ counsel’s contact information, so that potential class

8

members can speak with the attorneys who will presumptively represent them if they choose to

9

opt in.

10

Finally, the notice correctly summarizes potential class members’ options. It makes clear

11

that individuals are free to select their own counsel. It also warns that individuals who opt in will

12

be bound by the resulting judgment, whether favorable or unfavorable. The notice is to be

13

accompanied by substantially the same consent to join form that Plaintiffs have already used to

14

communicate their consent to sue in this lawsuit. See [Proposed] Order, Ex. B.

15

E.

16

Under the FLSA, the statute of limitations for each individual party plaintiff is not tolled

The Statute of Limitations Should Be Equitably Tolled

17

until he or she files a written consent to join the action, or until the court issues an equitable

18

tolling order. 29 U.S.C. §256(b); Partlow v. Jewish Orphans’ Home of Southern Cal., Inc., 645

19

F.2d 757, 760 (9th Cir. 1981), abrogated on other grounds by Hoffmann-La Roche, 495 U.S. 165

20

(1989); Owens v. Bethlehem Mines Corp., 630 F. Supp. 309, 312-13 (S.D. W. Va. 1986).

21

Equitable tolling is appropriate under the FLSA where similarly-situated plaintiffs,

22

through no fault of their own, have been unable to join the lawsuit. Baldozier v. Am. Family Mut.

23

Ins. Co., 375 F. Supp. 2d 1089, 1093 (D. Colo. 2005) (granting tolling to the date of the filing of

24

the original complaint where the defendant had refused “to provide contact information for

25

former employees”); Partlow, 645 F.2d at 760 (granting equitable tolling where original consents

26

found invalid based on improper attorney solicitation of plaintiffs); Owens, 630 F. Supp. at 312-

27 28

14

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

1

13 (equitable tolling where court did not rule on plaintiff’s motion for collective action

2

certification for over a year, during which time other plaintiffs were effectively precluded from

3

filing written consents to join).

4

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

In this case, Plaintiffs’ counsel requested Fund to provide contact information for

5

potential FLSA collective action members, expressly for the purpose of providing notice to

6

similarly-situated employees of the lawsuit and giving them an opportunity to opt in. Lowe Dec.

7

¶5. Plaintiffs’ counsel also requested a tolling agreement from Fund that would eliminate the

8

need for Plaintiffs to rush to the Court seeking conditional certification and equitable tolling. Id.

9

at Ex. A at p. 2. Defendant refused both requests. Id. at ¶6.

10 RUDY, EXELROD & ZIEFF, LLP.

Filed05/18/07 Page22 of 23

In addition, Fund’s categorical exempt classification practice has had the expected and

11

foreseeable effect of misleading potential class members as to facts and legal standards that might

12

have made them question their non-receipt of overtime wages and investigate their rights – by

13

concealing that it is their employer who has determined to treat them as exempt and not pay them

14

overtime, possibly wrongly. Finally, the complaint has obviously put Defendant on notice not

15

only of Plaintiffs’ claims, but also the claims of all potential class members.

16

Under these circumstances, the equities weigh in favor of equitably tolling the claims of

17

the FLSA collective class members. See Baldozier, 375 F. Supp. 2d at 1093 (tolling ordered as

18

of the date of complaint where defendant had refused “to provide contact information for former

19

employees”); Henchy v. City of Absecon, 148 F. Supp.2d 435, 438-39 (D. N.J. 2001) (employer’s

20

summary judgment motion regarding equitable tolling denied where employee alleged that

21

employer assured him that overtime compensation provided for by employment agreement was

22

proper); cf. Randle v. City of New Albany, No. 3:05CV74, 2006 WL 2085387, **3-4 (N.D. Miss.

23

Jul. 25, 2006) (disputed issues of fact regarding whether employer knowingly misled employees

24

about its overtime obligations precluded summary judgment on equitable tolling/estoppel claim);

25

Owens, 630 F. Supp. at 312-13 (tolling to offset delay in progress of litigation). Plaintiffs request

26

tolling as of the date Plaintiffs filed the complaint, December 19, 2006, through the date of the

27

Court-ordered deadline for filing Consents to Join. 15

28

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC

Case3:06-cv-07776-SC Document28

1 2

IV.

Filed05/18/07 Page23 of 23

CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that the Court grant their

3

Motion, thereby conditionally certifying this case as a FLSA class action under 29 U.S.C.

4

§216(b); authorize dissemination of notice to the prospective class; approve Plaintiffs’ proposed

5

forms of notice and written consent to join; order Defendant Fund promptly to produce the

6

names, addresses, and telephone numbers of all potential collective action members; and

7

equitably toll the statute of limitations for all potential collective action members from December

8

19, 2006.

9

Respectfully submitted,

10

351 CALIFORNIA STREET, SUITE 700 SAN FRANCISCO, CA 94104 (415) 434-9800

LAW OFFICES OF

RUDY, EXELROD & ZIEFF, LLP.

11

Dated: May 18, 2007

By:

12 13 14 15 16 17

/s/ David A. Lowe David A. Lowe Attorneys for Plaintiffs

David A. Lowe (State Bar #178811) John T. Mullan (State Bar # 221149) RUDY, EXELROD & ZIEFF, L.L.P. 351 California Street, Suite 700 San Francisco, CA 94104 Telephone: (415) 434-9800 Facsimile: (415) 434-0513 Email: [email protected] Email: [email protected]

18 19 20 21 22 23 24 25 26 27 28

16

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, NOTICE; AND EQUITABLE TOLLING POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC