United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge.
MATTER is before the Court on Defendants' “Motion
for Relief from Plaintiffs' Violations of
Court-Supervised Notice Provisions and Opt-In
Deadline.” (Doc. No. 147). For the reasons stated
below, Defendants' motion is GRANTED IN PART and DENIED
brought this case as a collective action under the Fair Labor
Standards Act (“FLSA”), alleging that
Defendants' misclassified employees as exempt from
overtime compensation in violation of the FLSA. (See
generally Doc. No. 1). This lawsuit was originally
brought in the Eastern District of Tennessee, but was
transferred to this district on December 13, 2018. (Doc. No.
98). Prior to ordering the transfer of the case, Judge
McDonough conditionally certified the class, (Doc. No. 67),
and approved an email and physical mailing of notice to
potential class plaintiffs. (Doc. No. 69). Judge McDonough
denied Plaintiffs' request to notice potential Plaintiffs
through other means, such as by posting notice on bulletin
boards in the workplace or distributing notices with paycheck
stubs. Id. at 9-10. The physical and email notices
to potential class members were sent sometime in November
about January 14, 2019, a legal assistant at Plaintiffs'
counsel's law firm sent at least 1, 074 unauthorized
follow up emails to potential class members. (Doc. No. 147,
p. 2). These emails were marked as “high importance,
” attached the court-approved notice and opt-in form,
and reminded the recipients to “return ASAP as there
are strict deadlines to adhere to!” (Doc. No. 148-2, p.
3). Plaintiffs' counsel does not dispute that the emails
were sent out and acknowledges that the emails were
unauthorized by the Court. (See Doc. No. 149, p. 3).
Following the unauthorized solicitation, Plaintiffs filed at
least 108 opt-in notices, (Doc. No. 148, p. 6), though it is
unclear whether these opt-ins were a result of the
subsequently filed the present motion, informing the Court of
the violations of the court-approved notice process and
seeking the following relief: 1) a variety of certifications
and productions by Plaintiffs regarding the unauthorized
solicitations; 2) 100 hours of additional deposition time for
Defendants to examine the class Plaintiffs who enrolled after
the unauthorized solicitations; 3) reservation of
Defendants' right to move to strike opt-in plaintiffs who
enrolled after January 14, 2019; and 4) costs and fees
incurred in making the motion. (Doc. No. 147, p. 3).
Plaintiffs have responded to the motion, (Doc. No. 149),
Defendants have replied, (Doc. No. 150), and this matter is
now ripe for review.
Fair Labor Standards Act (“FLSA”) allows
similarly situated employees to collectively sue an employer
for unpaid minimum wages or overtime compensation. 29 U.S.C.
§ 216(b). Potential plaintiffs must consent in writing
to participate in a collective action. See id.
(“No employee shall be a party plaintiff . . . unless
he gives his consent in writing to become such a party and
such consent is filed in the court in which the action is
brought.”). This opt-in process is designed to
“balance employees' interest in pooling resources
to bring collective actions and employers' interest in
reducing baseless lawsuits.” Degidio v. Crazy Horse
Saloon & Restaurant Inc., 880 F.3d 135, 143-44 (4th
Cir. 2018). To maintain this balance, it is well settled law
that district courts have the authority to supervise notice
and communications with purported class members to ensure
that “potential plaintiffs are not misled about the
consequences of joining a class.” Id.; see
also Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165,
171 (1989) (“[T]rial court involvement in the notice
process is inevitable in cases with numerous plaintiffs where
written consent is required by statute . . . .”).
present case, it is undisputed that Plaintiffs' counsel
sent unauthorized notices to potential plaintiffs-thus, the
only issue before the Court is to fashion an appropriate
remedy. The Court will now address each of Defendants'
requests for relief in turn.
first request a series of disclosures and certifications from
Plaintiffs' counsel: 1) sworn certification that
Plaintiffs have disclosed all unauthorized communications
initiated by their counsel or those working on their behalf;
2) production of all responsive communications by and to the
potential plaintiffs in connection with the unauthorized
communications; and 3) identification of all individuals who
opted into the class after the unauthorized communication. In
light of Plaintiffs' counsel's mistake, the Court
finds these requests warranted, and hereby GRANTS
Defendants' motion as to this requested relief.
Plaintiffs' counsel is hereby ORDERED to
produce such communications and certifications and to file a
certificate of compliance with the Court within 30 days of
this order's entry.
Defendants' Request for Additional Discovery
also request 100 additional hours of deposition time to
examine the additional 108 class members who opted into the
lawsuit following the unauthorized solicitation. According to
the Court's Pretrial Order and Case Management Plan, each
party could conduct up to 50 hours of oral depositions for
the entire case. (Doc. No. 126). Defendants now seek to
triple their total allotment of oral depositions, with 100 of
those hours focused solely on the 108 opt-in class members
who opted-in to the lawsuit following the unauthorized
emails. Defendants' requested relief threatens to derail
the central focus of discovery in this matter-distracting the
inquiry from whether all opt-in plaintiffs are
“similarly situated” as members of a class to
focus on a largely technical inquiry into which of the two
mailings prompted certain opt-in plaintiffs to join the