GARY ALLEN FEESS, District Judge.
The Plaintiffs in this action are former non-exempt employees of Defendants Acosta Sales, LLC, and Acosta, Inc. (together, "Acosta," or "Defendants"), who provided various merchandising services to food and consumer goods retail stores that are Acosta's customers and clients. Plaintiffs' Complaint alleges that they and other Acosta "merchandisers" have been systematically denied regular and overtime compensation, pursuant to Acosta's policies and practices, in violation of, inter alia, the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (Docket No. 1, Compl. ¶¶ 17, 32-38.) Plaintiffs now seek conditional certification of a collective class, pursuant to 29 U.S.C. § 216(b). (Docket No. 86.)
Acosta operates a brokerage and marketing business for food and consumer goods outlets in all 50 states in the United States, and in Canada. (Docket No. 138, Declaration of Toni Gerwitz in Support of Defendants' Opposition [Gerwitz Decl.] ¶¶ 2-3.) Through its "retail department," Acosta provides various merchandising services to retail stores (Acosta's "customers" or "Stores"), and to manufacturers of consumer products (Acosta's "clients" or "Manufacturers"). (Id. ¶¶ 2, 4.) These services are performed at a variety of retail locations, and include checking inventory and stocking products on the shelves; ensuring that products are properly displayed, priced, rotated, and sold; setting up, photographing, and tearing down promotional product displays; and collecting data and communicating with store management about product issues. Acosta employs approximately 14,300 merchandisers to carry out these functions, in nine organizational management divisions, and under 10 active, and five inactive, job titles. (Id. ¶ 4, 8; Docket No. 92, Declaration of Joshua G. Konecky in Support of Plaintiffs' Motion [Konecky Decl.], Ex. D [9/23/11 Acosta Interrogatory Response] at 10; Konecky Decl., Ex. B, [Deposition of Toni Gerwitz, Person Most Knowledgeable ("PMK Depo.") ] 33:2-18.) Approximately 12,000 of these merchandisers work in the United States. (PMK Depo. 29:10-20.)
Acosta's merchandisers perform tasks within one of two broad categories: physical merchandising tasks at the request of Stores, such as arranging and rearranging food products consistent with store layout plans, referred to as "schematics" or "plano-grams"; and answering questions, at the request of Manufacturers, on handheld or laptop devices ("NARS Devices") while physically in a store, regarding placement and pricing of the Manufacturer's products. (Gerwitz Decl. ¶ 5; see also id. ¶¶ 22-39 (describing functions performed by merchandisers in Acosta's Continuity and Target-Dedicated divisions using NARS Devices); Konecky Decl., Ex. P [Acosta NARS Reference Manual] at P21-P43; Konecky Decl., Ex. V [Acosta NARS Training Manual].)
Acosta's Sets and Projects ("ASAP") division performs specific tasks that are unique to that division. (Gerwitz Decl. ¶ 17.) This division provides teams of three to 25 people who "reset" shelves at the Stores' direction, by moving and placing large volumes of retail products according to changing schematics and plan-o-grams. (Id. ¶ 17(C), (G).) In addition, ASAP merchandisers perform unique "project" services for Manufacturers, to ensure that their individual products are placed, serviced, and sold correctly within a variety of different types of retail outlets. (Id. ¶¶ 2, 17(D).) Project tasks performed may include attaching promotional stickers to products, building and taking photos of promotional displays, filling out survey audits with information about specific product displays, or checking inventory and restocking products, (Id. ¶ 17(D); see also Docket No. 89, Declaration of
Plaintiffs present evidence that merchandisers across Acosta's divisions are required to perform certain tasks before performing work at a retail site, referred to as a store "call." First, merchandisers receive assignments from Acosta supervisors via their Acosta e-mail and voicemail accounts, or by accepting jobs via the Natural Insight web site. They are required to check e-mail, voicemail, and the Natural Insight site throughout the day in order to receive information about assignments. (PMK Dep. 55:16-56:25 (confirming that supervisors contact merchandisers via voicemail and e-mail during times when merchandisers are not in-store); Docket No. 145, Declaration of Matthew B. George in Support of Plaintiffs' Motion [George Decl.], Ex. 4 [Puliselich Depo. (Reply)] 226:13-15 (testifying that NARS merchandisers were advised to check e-mail before and after calls); Konecky Decl., Ex. S [Acosta Retail Communications Expectations for Every Associate] (requiring ASAP associates to check voicemail a minimum of three times per day, and e-mail once per day); Konecky Decl., Ex. T [ASAP Merchandiser Welcome Packet] (suggesting that ASAP merchandisers check Natural Insight daily for opportunities); Konecky Decl., Ex. U [Natural Insight Training Manual] at U02-U08 (instructing on how to accept opportunities and schedule calls on the site).)
Defendants confirm that ASAP "project" merchandisers accept jobs through Natural Insight, according to their schedules, but provide evidence that ASAP "reset" merchandisers are given their weekly schedules in advance, either via voicemail from their supervisor, or via a print-out handed to them while they are working. (Docket No. 138, Putative Class Member ("PCM") Declarations in Support of Defendants' Opposition, PCM Saavedra Decl. p. 15, ¶ 5; PCM Meyers Decl., p. 18, ¶ 5; PCM Dobbins Decl., p. 29, ¶¶ 3, 5; PCM J. Gonzalez Decl., p. 8, ¶ 6; PCM Bille Decl. pp. 23-24, ¶ 5; PCM Zellman Decl., p. 51, ¶ 6; PCM Blackwell Decl., p. 55, ¶ 5.) NARS Device users create their own schedules on the devices once weekly or monthly, and have some flexibility in assigning dates and times to the calls. (Gerwitz Decl. ¶ 31(A), 36(A); PCM Amador Decl., p. 248, ¶ 5; PCM Luna Decl., p. 239, ¶ 5.)
Second, Plaintiffs present evidence that, after receiving an assignment and prior to traveling to the retail site, merchandisers are required to check their voicemail, e-mail, and the Natural Insight site for lastminute information about products and assignments and supervisor comments and instructions, and in order to print project forms, download surveys, retrieve plan-o-grams and schematics, review product information, and learn what tools or materials to bring to the store. (Johnson Decl. ¶¶ 3, 4; Lytle Decl. ¶ 3; Docket No. 90, Declaration of Richard Puliselich in Support of Plaintiffs' Motion [Puliselich Decl.]
Defendants present evidence that this preparatory work is either not required, or is insubstantial. (Gerwitz Decl. ¶ 19(C) (stating that "90%" of reset merchandisers "should never download or print a schematic or plan-o-gram because the vast majority of the stores ... provide these items on site," and that "there is no need (and certainly no requirement)" for a reset merchandiser "to consult a schematic or plan-o-gram prior to a shift" because these are "merely points of reference while a Reset is being performed in the store"; Docket No. 138, Declaration of John Yslas in Support of Defendants' Opposition [Yslas Decl.], Ex. 2 [Sutton Depo. (Opp.) ] 95:21-96:16 (testifying that payroll documents and plan-o-grams were mailed to his house or available at the store)); PCM C. Gonzalez Decl., p. 251, ¶ 4 ("Acosta does not control ... what I do before going to my first store ..."); PCM Miranda Decl., p. 67, ¶ 5, PCM Peck Decl., p. 61, ¶ 5, PCM Kaliebe Decl., p. 75, ¶ 5, PCM J. Gonzalez Decl., p. 8, ¶ 6, PCM Meyers Decl., p. 18, ¶ 5 (all stating that pre-store documents are mailed to house or available at store).) In particular, Defendants present evidence that NARS Device users are not required to perform pre-store preparatory work, because all necessary documents are available on the mobile devices. (Gerwitz Decl. ¶ 19(C), (D).)
Plaintiffs present evidence that, after completing the assigned tasks at the retail sites, merchandisers are required to complete the job by transmitting information back to Acosta about the work performed and any data collected, and to report the time spent on the job. For some jobs, they may be required merely to confirm that the work was performed, and to indicate the time spent and mileage incurred in traveling to and from the job. Other jobs require the submission of detailed product and work information, such as where and how products were displayed at the retail sites, whether the items were properly tagged, whether sufficient inventory existed, the names of store supervisors on the project, how resets were performed, whether additional projects were completed, and problems encountered. (Johnson Decl. ¶¶ 2, 5; Lytle Decl. ¶ 4; Puliselich Decl. ¶ 5; Sutton Decl. ¶¶ 4, 5; Lytle Depo. (Mem.) 146:17-147:24, 188:13-189:11;
Defendants present evidence that the post-store work required of Natural Insight users is insubstantial, and need not be completed immediately after the instore shift. (Gerwitz Decl. ¶ 19(A), (B) (ASAP reset merchandisers are required to answer only four simple questions on Natural Insight after completing a job, while ASAP project merchandisers may be required to answer as many as 15); Sutton Depo. (Opp.) 144:6-23 (stating that he was required to answer, on Natural Insight, only the same two or four questions regarding the work performed and the same seven questions regarding hours worked); PCM C. Gonzalez Decl, p. 251, ¶ 4 ("Acosta does not control ... what I do .. after my last store"); PCM McGowan Deck, p. 300, ¶¶ 5, 6; PCM Baylor Deck, p. 78, ¶ 5; PCM Newfield Deck, p. 80, ¶ 4.)
For their part, NARS Device users have no post-store duties, other than submitting time sheets, because the data they collect must be transmitted to Acosta from the NARS Device while in-store, and is transmitted by the press of a button. (Gerwitz Decl. ¶¶ 31(B), 36(D); Yslas Deck, Ex. 3 [Johnson Depo. (Opp.) ] 38:2-15, 41:20-25; Yslas Deck, Ex. 4 [Puliselich Depo. (Opp.)] 167:12-13, 169:15-16 (testifying that transmitting NARS data to Acosta took little time); PCM Tinley Decl, p. 273, ¶¶ 5, 6; PCM Fulgham Deck, p. 245, ¶ 6; PCM Maxfield Decl., p. 259, ¶ 6; PCM Penrod Decl., p. 294, ¶ 5; PCM Isom Decl., p. 278, ¶ 3; PCM McGowan Decl., p. 300, ¶¶ 5, 6.) Moreover, any post-store administrative work performed varies substantially between individual merchandisers. (Puliselich Depo. 177:1-10 (Opp.) (testifying that, in addition to transmitting NARS data, he was required to process "paperwork" following a store call); Yslas Deck, Ex. 1 [Lytle Depo. (Opp.) ] 188:13-189:23 (testifying that, after completing a call, she was required to enter information into Natural Insight and fax information to Acosta); Johnson Depo. (Opp.) 55:18-21, 42:20-43:3 (stating that he was required to send "daily recaps" to his supervisor, but that this requirement "varied by team" and "depended on the manager").)
Plaintiffs present evidence that merchandisers spend between 15 minutes and one hour completing the required prestore and post-store tasks. (Johnson Decl. ¶¶ 5, 6; Lytle Decl. ¶ 6; Puliselich Decl. ¶¶ 4, 5; Sutton Decl. ¶ 5; Lytle Depo.
Acosta's merchandisers are classified as non-exempt employees and are paid between $9 and $19 per hour. (Id. at 15:1-6; 31:18-24; 45:17-20; 46:2-9.) Acosta's policy is that merchandisers are paid for their "call" or "in-store" hours and for their compensable travel time.
Compensable travel time is recorded separately, and is defined as any travel time greater than one hour to and from each site. (Konecky Deck, Ex. Z [Acosta Commute Time Policy HR-303]; see Natural Insight Merchandiser Training Manual at 029 (screenshot showing field for "[a]uthorized payable drive time"); Konecky Deck, Ex. Y [Acosta Time Sheets] (containing field to enter "[d]rive [t]ime").) Acosta's commute time policy applies uniformly to all merchandisers. (PMK Depo. 145:16-146:17.)
The Parties dispute whether ASAP merchandisers are paid for pre- and post-store tasks. Specifically, Plaintiffs present evidence that Acosta pays employees based on the job estimates, rather than on the actual hours worked; that out-of-store duties are not accounted for by shift time
Defendants cite contrary evidence that merchandisers are paid based on actual time worked, rather than estimated project times, and that time spent on out-of-store tasks is compensated for by paying merchandisers for a greater number of instore hours than were actually worked, or by billing for "work from home" or "office" time. (Gerwitz Decl. ¶¶ 12, 13, 19(G) (confirming that Acosta uses estimated times to plan store calls, but denying that merchandisers are paid based on the estimated time); instead, employees "are instructed to enter time for all hours worked," and "are paid for their self-reported time worked and not ... any sort of estimate"; Johnson Depo. (Opp.) 159:7-18, 161:2-25, 166:24-167:3, 170:22-171:4 (time entered on time sheets was based on actual, not estimated, time for call); PMK Depo. 93:9-25, 154:17-22, 174:4-9 (stating that time spent on work activities performed outside the store is compensated for by merchandisers leaving the store early); Gerwitz Decl. ¶¶ 11, 13, 14 (describing various ways that administrative time is included in the in-store hours reported by merchandisers, and stating that "merchandising projects oftentimes take less time than the estimated time," so that "Acosta employees are in fact often paid for more time than actually
Only Acosta's overtime policy suggests that time spent working outside the retail sites, other than travel time, can be compensable. (Ex. AA [Acosta Overtime Policy HR-301] (stating that "[a]ll hours worked whether in the office, at home or at an assigned work location, must be recorded and preapproved by the immediate supervisor.").) This overtime policy applies to all merchandisers. (Acosta Overtime Policy HR-301; PMK Depo. 91:8-15, 157:7-25.) However, the Parties have produced conflicting evidence as to whether overtime is accurately recorded and paid, for either in-store time or for pre- or poststore tasks. (Compare Konecky Decl., Ex. BB (supervisor e-mail indicating that no overtime will be approved for series of short projects); Konecky Decl., Ex. CC (supervisor e-mail indicating that merchandiser's paycheck was short because she failed to receive pre-approval for overtime hours); Konecky Decl., Ex. DD (supervisor e-mails instructing merchandisers to enter overtime hours as work performed on a different day); Lytle Depo. (Mem.) 175:23-176:12 (testifying to the same practice); Johnson Decl. (Opp.) 165:24-166:13 (testifying that supervisor denied him overtime on multiple occasions); Opt-In Plaintiff Moffat Interrogatory Response at 23 (stating that "Plaintiff was repeatedly told that the company did not give overtime"), with Gerwitz Decl. ¶ 9 (stating that Acosta's policy is to "pay compensation to all nonexempt employees for all hours worked over 40 in a calendar week — which includes administrative time," and that she is "not aware of a single instance of any Acosta employee being discouraged from reporting all time worked, be it in-store work, non-commute travel time, administrative work, or any other work of any kind"); Johnson Depo. (Opp.) 163:4-164:4, 164:20-165:5 (admitting to having been paid overtime in June and August 2009).)
The FLSA was enacted in 1938 to protect covered workers from improper working conditions such as excessive hour requirements. Friedrich v. U.S. Computer Servs., 974 F.2d 409, 412 (3d Cir.1992) (citing Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981), cert. denied, 471 U.S. 1054, 105 S.Ct. 2116, 85 L.Ed.2d 480 (1985)). This Act requires employers to compensate covered employees at a minimum of one-and-one-half times their standard hourly wage for working time in excess of forty hours per week. 29 U.S.C. § 207(a)(1); see also 29 U.S.C. § 213(b).
The FLSA explicitly allows employees to proceed collectively in order to
Section 216(b) does not define "similarly situated," and the Ninth Circuit has yet to define it, see Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D.Cal.2004), but most courts and district courts within this Circuit follow a two-tiered approach to certification of FLSA collective actions. Edwards v. City of Long Beach, 467 F.Supp.2d 986, 989-90 (C.D.Cal.2006). Under this approach,
Id. at 990 (citations omitted); accord, e.g., Deane v. Fastenal Co., No. C 11-00042 SI, 2011 WL 5520972, at*2 (N.D.Cal. Nov. 14, 2011); Misra v. Decision One Mortg. Co., LLC, 673 F.Supp.2d 987, 992-93 (C.D.Cal. 2008); Pfohl v. Farmers Ins. Group, No. CV 03-3080 DT (RCx), 2004 WL 554834, at *2 (C.D.Cal. Mar. 1, 2004); see also Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir.2001); Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir.2001). Courts making a determination as to whether to certify a collective action and permit notice to be distributed to putative class members "tend to require `nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.'" Sarviss v. Gen. Dynamics Information Tech., Inc., 663 F.Supp.2d 883, 903 (C.D.Cal.2009) (citation omitted). However, these allegations must be "supported by affidavits which successfully engage a defendant's affidavits to the contrary." Trinh v. JP Morgan Chase & Co., No. 07-CV-1666 W(WMC), 2008 WL 1860161, at *3 (S.D.Cal. Apr. 22, 2008). The factual showing required of putative collective action plaintiffs at this stage has frequently been described as "modest." See, e.g., Misra, 673 F.Supp.2d at 995.
In cases in which "discovery has been undertaken relating to the issues of certification of th[e] action as a collective action," the Court "can proceed to the second determination ... and weigh relevant factors to determine whether the plaintiffs are similarly situated." Pfohl, 2004 WL 554834, at *3. However, the Court does not have to proceed to the second determination, and this determination has been characterized as something that more appropriately takes place upon a motion to decertify a provisional class. Leuthold, 224 F.R.D. at 467-68. In either event, the determination of whether Plaintiff and the class are similarly situated differs from and is less stringent than the class action certification standard because "the FLSA simply requires that the employees be `similarly situated.' The other factors required in class actions — numerosity, typicality, etc. — do not apply to collective actions." Scholtisek v. Eldre Corp., 229 F.R.D. 381, 386 (W.D.N.Y.2005) (citations omitted).
As an initial matter, Defendants argue that Plaintiffs are collaterally estopped from bringing this action collectively by the decertification of "substantially the same collective" action in Price v. Acosta, Inc., Case No. 03-2686 (W.D.Tenn. 2008), and by the court-approved stipulation to dismissal with prejudice of Human v. Acosta, Case No. Cv-10-237 ODW(RCx) (C.D.Cal.2010), a putative class action under California Code of Civil Procedure section 382, in which the plaintiff failed to timely bring a motion for class certification. (Opp. at 5-6; see Defendants' Request for Judicial Notice [RJN], Ex. 2 [Price v. Acosta Decertification Decision], Ex. 4 [Human v. Acosta Dismissal with Prejudice].)
The Supreme Court has held that "[r]epresentative suits with preclusive effect on nonparties include properly conducted class actions." Id. However, a "properly conducted class action" is one in which a class has been certified under Federal Rule of Civil Procedure 23. Thus, "[n]either a proposed, nor a rejected, class action may bind nonparties." Smith v. Bayer Corp., ___ U.S.___, 131 S.Ct. 2368, 2380, 180 L.Ed.2d 341 (2011). Moreover, Defendants cite to no authority for the proposition that a rule contrary to that articulated in Smith applies to collective actions under the FLSA, or to proposed class actions under California Code of Civil Procedure section 382. (See Opp. at 5-6.) Recognition of our legal system's "deeprooted historic tradition that everyone should have his day in court" and the narrow approach traditionally taken by courts to issue preclusion counsels against lending preclusive effect in either circumstance. Richards v. Jefferson County, 517 U.S. 793, 798, 116 S.Ct. 1761, 135 L.Ed.2d 76 (1996); see also Smith, 131 S.Ct. at 2381 ("... [O]ur legal system generally relies on principles of stare decisis and comity among courts to mitigate the sometimes substantial costs of similar litigation brought by different plaintiffs. We have not thought that the right approach (except in the discrete categories of cases we have recognized) lies in binding nonparties to a judgment.") This Court holds, there-fore, that Plaintiffs' attempt to seek conditional collective certification in this action is not precluded by Price v. Acosta or by Human v. Acosta.
Through the collective action, Plaintiffs seek to represent a class of merchandisers — "nonexempt employees in Acosta's retail department" — working for Defendants throughout the United States, who are "subject to Acosta's written overtime policy HR-301 and/or Acosta's written commute time policy HR-303." (Mot. at 1; see also Mem. at 1, 16; Compl. ¶¶ 21, 22).
The Court finds that Plaintiffs have satisfied their burden, at this early stage, to make "substantial allegations" or a "modest factual showing" that they and other merchandisers employed by Acosta nationwide were subject to "a common policy or plan that violated the law." Sarviss, 663 F.Supp.2d at 903; Misra, 673 F.Supp.2d 987, 995. Plaintiffs rely on: (1) declarations and deposition testimony by four former Acosta merchandisers in the southern California region, including two ASAP merchandisers who utilized the Natural Insight web site in their work and two merchandisers in other Acosta divisions who worked with NARS Devices; (2) verified interrogatory responses submitted by an additional ten Acosta merchandisers; (3) deposition testimony by Acosta's PMK, HR Business Partner, West, Toni Gerwitz; and various Acosta policy, training, and reference materials applicable to Acosta merchandisers in all geographic locations. For their part, Defendants rely on a declaration filed by Gerwitz; deposition testimony by Gerwitz and by former Acosta merchandisers; and declarations filed by 105 current and former merchandisers, all employing substantially the same language. Although the Parties' evidence conflicts in numerous and significant ways,
Specifically, Plaintiffs have presented evidence that Acosta merchandisers in different divisions, performing different instore tasks, and utilizing both the Natural Insight web site and Acosta's handheld NARS devices were required to perform similar duties from outside the store and outside the hours of their scheduled shifts, including checking e-mail and voicemail; responding to inquiries from Acosta management; and preparing for, and completing, their "call" duties, by answering questions and submitting documentation. Plaintiffs have also presented evidence that they were not compensated for performing these tasks in any way, including by payment of "in-store" hours that accounted for time spent on out-of-store tasks, "drive time" hours, or overtime. Plaintiffs have presented further evidence that Acosta's written policies, applicable nationwide, and its practices and procedures discourage merchandisers from seeking payment for all compensable time worked. (See Mem. at 16-23; Docket No. 144, Reply at 15-18.) Although Defendant submits evidence that some of its merchandisers were purportedly not subjected to the violations alleged in the operative complaint, that alone does not preclude conditional certification of this collective action. See Creely v. HCR ManorCare, Inc., 789 F.Supp.2d 819, 840 (N.D.Ohio 2011) ("happy camper" affidavits of little use at conditional certification stage of the proceedings). What is more notable is that Defendants make almost no reference to Acosta's pertinent policy and training documents. In short, conditional certification does not require a showing that putative class members are identically situated, just that they are similarly situated, and a detailed analysis of such issues as differing job functions is more properly made on a motion for decertification. See Edwards, 467 F.Supp.2d at 990.
Thus, weighing the Parties' evidence, the Court finds the evidence more substantial that (1) merchandisers are required to receive their schedules and information about their upcoming calls by checking e-mail and voicemail accounts, by logging in to the Natural Insight web site and NARS program, and by speaking with supervisors outside of the merchandisers' in-store hours; (2) merchandisers must complete call duties outside of in-store hours; and (3) merchandisers are not compensated for time spent completing out-of-store tasks. At the conditional certification stage, this factual showing is sufficient to support a finding of similarity.
Accordingly, the Court
Defendants request this Court to undertake the second stage analysis on the basis that "substantial discovery" has already been conducted in this action. (Opp. at 6, 8-9.) Although discovery on classrelated issues has been conducted in this litigation since April 15, 2011, the Court does not feel compelled to proceed to the second-tier analysis for reasons similar to those articulated by the court in Leuthold. That court explained:
Leuthold, 224 F.R.D. at 467-68.
Numerous courts in this Circuit have held that the more rigorous second-tier analysis does not apply until after the close of discovery, at the point when the case is ready for trial, and others have held that the notice stage is effective as long as discovery on collective certification continues. See, e.g., Labrie v. UPS Supply Chain Solutions, Inc., No. C08-3182, 2009 WL 723599, at *3 (N.D.Cal. March 18, 2009) (first stage analysis applies until discovery is complete and case is ready for trial); Edwards, 467 F.Supp.2d at 990 n. 1 (same); Goudie v. Cable Communications, Inc., No. 08-CV-507-AC, 2008 WL 4628394, at *5 (D.Or. Oct. 14, 2008) (first stage analysis applied as long as classrelated discovery continues). Although Defendants cite to one intra-circuit and two out-of-circuit cases for the proposition that a court may require a heightened factual showing to be made where some discovery has been conducted on the certification issue, courts within this Circuit overwhelmingly "refuse to depart from the notice stage analysis prior to the close of discovery." Kress v. Pricewaterhouse-Coopers, LLP, 263 F.R.D. 623, 629 (E.D.Cal.2009). Indeed, this Court has refused to proceed to the second stage analysis, as a matter of course, even in circumstances in which discovery had closed and some forms of notice had been sent to potential group members. See Dudash v. Varnell Strucks and Assocs., No. 04-10067 GAF (RZx), at 36 (C.D.Cal. Mar. 6, 2006).
Proceeding to the second stage analysis at the present stage in this action would be premature. Discovery related to certification is incomplete; notably, the Parties have not resolved differences regarding the sufficiency of Acosta's responses to Plaintiffs' written discovery requests; Plaintiffs have not had an opportunity to depose Acosta's PCM declarants regarding their statements; and this Court earlier denied without prejudice Plaintiffs' request that Acosta identify merchandiser witnesses and potential opt-in plaintiffs, as premature. (See Reply at 4, 15; Docket No. 78.) Should Defendants choose to file a decertification motion at a later stage during this litigation, the Court will be able to proceed on a more complete record. Accordingly, the Court declines to proceed to the second stage analysis.
Defendants request that the Court narrow the scope of notice to the named Plaintiffs' unit groups or to California; to a statutory period of two years, rather than three; and to an opt-in period of 30 days, rather than the 90 days proposed by Plaintiffs. (Opp. at 25.) The Court declines to impose geographical or intra-organizational limitations on notice at this stage; sub-groups may be organized or eliminated at later stages. In addition, on the basis of the evidence adduced, the Court declines to limit notice to the two-year statutory period for unwillful violations. Pursuant to 29 U.S.C. § 255(a), the Court permits a notice period of three years from the date the cause of action accrued. As to the period for opt-in, the Court declines to resolve the Parties' difference
Plaintiffs request that the Court toll the statute of limitations for all opt-in Plaintiffs as of the date of this Order, because of delays caused by Acosta's motion to stay and the consolidation of this case with two other cases, and because Plaintiffs timely requested, but Acosta has not yet produced, class member contact information. Equitable tolling is justified on the last basis, exclusive of the other bases, because Plaintiffs have diligently pursued their legal rights and are without fault for the delay. See Adams v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 543 (N.D.Cal.2007) (tolling where defendants withheld contact information for potential class members before conditional certification). Accordingly, the Court
Finally, Plaintiffs request that the Court facilitate notice by (1) directing Defendants to produce a "computer-readable data file containing the names, last known addresses, telephone numbers, job titles and last known email addresses" of all "persons within the proposed class who have been employed by Defendants in the United States at any time within three years" of the Court's present Order; and (2) "appoint a third-party administrator to mail the notice to all class members within seven days of receipt of the data files and post the notice on the websites of Plaintiffs' counsel." (Docket No. 86, Not. at 1.) Because the Court grants Plaintiffs' Motion for conditional collective certification, the Court also
For the reasons set forth herein, Plaintiffs' motion for conditional collective certification under the FLSA is
The hearing scheduled for Monday, December 19, 2011, is
IT IS SO ORDERED.
