STIPULATION AND [PROPOSED] ORDER RE DISTRIBUTION OF COLLECTIVE ACTION NOTICE AND TOLLING OF FLSA STATUTE OF LIMITATIONS The

WILLIAM B. SHUBB, District Judge.

On August 8, 2017, the Court approved initial Opt-In Notices (English and Spanish versions) and ordered Defendants to distribute the approved FLSA collective action Opt-In Notices to their current H-2B employees with the employees' paychecks for the September 1 and October 1, 2017 pay periods. (See Dkt. No. 42 at 11.) Subsequently, pursuant to the parties' stipulation, the Court approved corrected Opt-In Notices on August 23, 2017 and October 10, 2017. (See Dkt. Nos. 45, 49.) Despite defense counsel's representation that counsel from his firm had instructed his client to distribute the corrected Notices to current H-2B employees with Defendants' next two payrolls, Defendants' counsel, who is new to the action, informed Plaintiffs by phone on December 8, 2017 that Defendants distributed the corrected Notices "on or around November 10, 2017." Additionally, Defendants' counsel indicated that it was his understanding that work had ended for this season, and that it was not possible to distribute the corrected Notices to H-2B employees a second time, as it was his understanding that Defendants' H-2B employees had returned to Mexico. As a result, Defendants have distributed the Notices only once, not twice as the Court likely contemplated in its original August 8, 2017 Order concerning the Notices. Following a reasonable search, Defendants represent that they do not have the Mexico-based contact information for the company's 2017 H-2B employees within their possession, custody, or control, and thus cannot transmit or distribute the Notices to those employees in Mexico via mail, courier, or other means.

Following meet and confer efforts, the parties, by and through their counsel of record, hereby agree and stipulate to the following as a means of addressing appropriate distribution of the notices (both English and Spanish versions) in accordance with the Court's Orders:

1. The cut-off date for the FLSA collective action opt-in period shall be extended from April 9, 2017 until 90 days before the trial date of December 4, 2018 (i.e., September 5, 2018.) Other case deadlines shall remain the same; however, the parties shall be permitted to conduct depositions of any employees who opt-in to the collective action after the discovery cutoff of June 4, 2018 until sixty (60) days before trial, i.e., no later than October 5, 2018.

2. The statute of limitations under 29 U.S.C. § 255(a) applicable to potential opt-in class members' FLSA claims shall be tolled from the date of the Court's approval of this Stipulation through the date of execution of the class member's "consent to sue" form, and not later than September 5, 2018. The parties agree that the time period between these dates shall not be considered in determining whether opt-in class members' FLSA claims are time barred.

3. Defendants shall provide a copy of the collective action Opt-In Notices to all 2018 H-2B employees at the time that they commence work for the 2018 season, which is currently expected to begin in late April 2018.

4. As soon as Defendants determine the start date of their 2018 season, Defendants' counsel shall notify Plaintiffs' counsel of that start date, and shall provide all information then-available concerning the job locations at which the company's 2018 H-2B workers will work during the 2018 season. The parties' counsel shall jointly distribute the collective action Opt-In Notices to Defendants' H-2B employees at Defendants' worksite(s) when the first two payrolls are distributed to Defendants' H-2B workers. Defendants and their counsel also shall permit Plaintiffs' counsel to answer questions from any of Defendants' H-2B employees during these distributions and agree that Defendants may not retaliate or take any other adverse action against employees for asking such questions or in any manner discourage workers from exercising their right to opt-in to the action.

5. Defendants further agree to contact Monarch Butterfly, Defendants' Mexico-based labor recruiter, and authorize in writing that Monarch Butterfly may speak with Plaintiffs' counsel regarding any potential H-2B workers who sought employment with Defendants between May 5, 2014 through the present. That written authorization will state that Monarch Butterfly may provide Plaintiffs' counsel with any and all records in Monarch Butterfly's possession and control regarding potential H-2B workers who sought employment with Defendants during the above timeframe. Defendants agree to send the written authorization to Monarch Butterfly no later than January 8, 2018, and will provide a copy of that authorization to Plaintiffs' counsel.

ACKNOWLEDGED AND AGREED:

IT IS SO ORDERED.