PATRICK MICHAEL DUFFY, District Judge.
This matter is before the Court on Plaintiffs Raymond H. Schmidt and Derek Brandon Haynes's ("Plaintiffs") Motion for Conditional Class Certification (ECF No. 34) ("Motion"). Plaintiffs seek, inter alia, conditional certification of a putative class pursuant to the collective action provision of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). For the reasons set forth herein, Plaintiffs' Motion is granted in part and denied in part.
On March 24, 2014, Plaintiffs commenced this action on behalf of themselves and others similarly situated, alleging violations of the minimum wage and overtime compensation provisions of the FLSA and the South Carolina Payment of Wages Act ("SCPWA"), S.C. Code Ann. §§ 41-10-10 et seq. Plaintiffs,
Plaintiffs allege that Defendants utilized a commission hour pay plan ("Plan"), under which Plaintiffs were paid an hourly rate based on the estimated number of hours it would take to complete a job rather than on the actual hours of work ultimately performed. Plaintiffs further allege that Defendants' use of the Plan, when combined with the wage paid per commission hour and non-payment for so-called "idle time," violated the FLSA's minimum wage requirement. The Amended Complaint also alleges that Plaintiffs regularly worked more than forty hours per week but that Defendants failed to properly pay Plaintiffs for that overtime, in violation of the FLSA's overtime compensation provisions. With regard to the SCPWA, Plaintiffs allege that Defendants occasionally reduced Plaintiffs' commission hour rate, making such deductions from their wages without their knowledge and without notice, in violation of state law. Finally, Plaintiffs claim that Defendants' alleged violations of the FLSA and the SCPWA are or were willful and knowing. In response to these allegations, Defendants admit that Plaintiffs were paid a flat rate commission for their work but contend that they were aware of and in full compliance with all applicable FLSA and SCPWA requirements. Accordingly, Defendants deny the asserted claims and any resulting liability.
Plaintiffs now seek to conditionally certify this matter as a collective action under the FLSA. On March 5, 2015, Plaintiffs filed the instant Motion requesting: (1) conditional certification of a putative class; (2) permission to send notices to potential class members; and (3) a Court order requiring Defendants to provide a list containing the names, addresses, and telephone numbers of all potential class members. Defendants responded to Plaintiffs' Motion on March 23, 2015, asserting that Plaintiffs were properly paid in accordance with the minimum wage and overtime requirements of the FLSA and that Plaintiffs were exempt from the overtime requirements of the FLSA pursuant to 29 U.S.C. § 207(i). In their Response, Defendants first request that the Court deny Plaintiffs' Motion. Alternatively, Defendants ask that this Court: (1) narrow Plaintiffs' proposed class definition; (2) modify Plaintiffs' proposed notice language; (3) limit any notice by mail to a single notice, rejecting Plaintiffs' request for permission to send a "reminder" notice; (4) limit the notice period to thirty days, rather than Plaintiffs' requested ninety days; and (5) require that any persons who wish to opt-in after the approved deadline seek the Court's leave to do so. In their Reply, filed on April 2, 2015, Plaintiffs responded to Defendants' arguments, agreed to reduce their proposed opt-in period to sixty days, and withdrew their request for a reminder mailing. Plaintiffs' Motion is now ripe for consideration.
Under the FLSA, plaintiffs may institute a collective action against their employer on behalf of themselves and similarly situated employees. The FLSA's collective action provision states that:
29 U.S.C. § 216(b). The procedure detailed in § 216(b) is intended to enable the efficient adjudication of similar claims by "similarly situated" employees, allowing the consolidation of individual claims and the sharing of resources in prosecuting such actions against their employers. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989); LaFleur v. Dollar Tree Stores, Inc., 2:12-CV-00363, 2014 WL 934379, at *2 (E.D. Va. Mar. 7, 2014), reconsideration denied, 2014 WL 2121563 (E.D. Va. May 20, 2014), and motion to certify appeal denied, 2014 WL 2121721 (E.D. Va. May 20, 2014); Lynch v. United Servs. Auto. Ass'n, 491 F.Supp.2d 357, 367 (S.D.N.Y. 2007). In deciding whether the named plaintiffs in a FLSA action are "similarly situated" to other potential plaintiffs, courts typically use a two-stage approach.
The first stage in this process, which is the subject of the instant Motion, is the "notice," or "conditional certification," stage. Purdham, 629 F. Supp. 2d at 547. Here, "a plaintiff seeks conditional certification by the district court in order to provide notice to potential similarly situated plaintiffs" that they can "opt-in" to the collective action. Pelczynski, 284 F.R.D. at 367-68. With regard to this notice phase, "[t]he Supreme Court has held that, in order to expedite the manner in which collective actions under the FLSA are assembled, `district courts have discretion[,] in appropriate cases[,] to implement . . . § 216(b). . . by facilitating notice to potential plaintiffs.'" Purdham, 629 F. Supp. 2d at 547 (quoting Hoffman-La Roche, Inc., 493 U.S. at 169). At this step, the court reviews the pleadings and affidavits to determine whether the plaintiff has carried his burden of showing that he is similarly situated to the other putative class members. Pelczynski, 284 F.R.D. at 368; Purdham, 629 F. Supp. 2d at 547-48. "Because the court has minimal evidence, this determination is made using a fairly lenient standard," Steinberg v. TQ Logistics, Inc., No. 0:10-cv-2507-JFA, 2011 WL 1335191, at *1 (D.S.C. Apr. 7, 2011), requiring plaintiffs to make a "a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law," Purdham, 629 F. Supp. 2d at 548 (quoting Choimbol v. Fairfield Resorts, Inc., 475 F.Supp.2d 557, 563 (E.D. Va. 2006)). If the court concludes that the proposed class members are similarly situated, the court conditionally certifies the class. Steinberg, 2011 WL 1335191, at *1. The putative class members are then notified and given the opportunity to "opt-in," and the case continues as a representative action throughout discovery. Id. (citing Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y. 2005)); see Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1530 (2013) (citation omitted) ("`[C]onditional certification' does not produce a class with an independent legal status, or join additional parties to the action. The sole consequence of conditional certification is the sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court." (citing § 216(b))).
Second, after the court has conditionally certified the class, the prospective class members have been identified and notified, and discovery has been completed, "a defendant may then move to decertify the collective action, pointing to a more developed record to support its contention that the plaintiffs are not similarly situated to the extent that a collective action would be the appropriate vehicle for relief." Pelczynski, 284 F.R.D. at 368. At this optional "decertification stage," the court applies an amplified fact-intensive standard to the "similarly situated" analysis. Steinberg, 2011 WL 1335191, at *2; see Pelczynski, 284 F.R.D. at 368. "Courts have identified a number of factors to consider at this stage, including (1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendants that appear to be individual to each plaintiff; and (3) fairness and procedural considerations." Curtis, 2013 WL 1874848, at *3 (internal quotation marks omitted). If the court concludes that the plaintiffs are not, in fact, similarly situated, it may decertify the class, dismiss without prejudice the opt-in plaintiffs' claims, and permit the named plaintiffs to proceed on their individual claims. Id.
Plaintiffs specifically request that this Court enter an Order: (1) conditionally certifying a single putative class of auto body and/or paint technicians ("Proposed Class"), as detailed further herein; (2) requiring Defendants to produce the names, addresses, and telephone numbers of all members belonging to the Proposed Class; and (3) authorizing Plaintiffs' counsel to send a proposed notice to members of the Proposed Class via U.S. Mail. The Court will address Plaintiffs' requested relief, as well as Defendants' objections thereto, seriatim.
At the outset, Plaintiffs move to conditionally certify the following Proposed Class:
(Pls.' Mot. for Conditional Class Certification, Ex. 4, at 1.)
First, Defendants contend that Plaintiffs have not met their burden to prove that a class of similarly situated plaintiffs exists because Plaintiffs have failed to show the existence of other potential opt-in plaintiffs who want to join the suit, for example, by providing affidavits of such persons. As Plaintiffs point out, the Fourth Circuit has never imposed such a burden on FLSA plaintiffs at the conditional certification stage. See Villareal v. St. Luke's Episcopal Hosp., 751 F.Supp.2d 902, 916 (S.D. Tex. 2010) (noting that evidence aggrieved individuals want to opt-in to the lawsuit is not statutorily required at the conditional certification stage and has not been required "by any higher court opinion that this court has been able to find"). Likewise, this Court declines to require such a showing in the present case.
Defendants also argue that conditional certification should be denied because the Plan was lawful. While Defendants concede that Plaintiffs have adequately alleged a common policy or plan for purposes of pleading a violation of the FLSA, Defendants aver that the method of payment was lawful because Plaintiffs fall under the so-called "§ 207(i)" exemption to the FLSA. The Fourth Circuit appears to require an employer who invokes FLSA exemptions to prove the applicability of such exemptions by clear and convincing evidence. Herrera v. TBC Corp., 18 F.Supp.3d 739, 741 (E.D. Va. 2014). Defendants have raised the exemption as an affirmative defense in their Amended Answer to the Amended Complaint; however, at this nascent stage of the litigation, clear and convincing evidence of the applicability of this defense is not before the Court. Therefore, Defendants' argument in this regard is unavailing.
Defendants also object to Plaintiffs' Proposed Class on the grounds that it is too broadly defined because it includes individuals who worked at Defendants' Goose Creek location. Defendants point out that neither named Plaintiff worked at that location and therefore object to its inclusion in the definition of the Proposed Class. However, Defendants admit in their Amended Answer to the Amended Complaint that Plaintiffs and other paint and body technicians were paid under the same compensation plan. Defendants have not asserted that the paint and body technicians at the Goose Creek location were subject to some other compensation plan nor have Defendants attempted to distinguish the job duties of the Goose Creek paint and body technicians from those of technicians at their other locations. As previously discussed, Plaintiffs need not prove that their situation is identical to those of the potential opt-in plaintiffs. See Hamadou v. Hess Corp., 915 F.Supp.2d 651, 662 (S.D.N.Y. 2013) ("[C]ourts have regularly found named plaintiffs to be similarly situated to employees at locations where they did not work, provided that the plaintiffs demonstrate that they were all subject to the same allegedly unlawful policy or practice."); see also Rosario v. Valentine Ave. Disc. Store, Co., Inc., 828 F.Supp.2d 508, 516-17 (E.D.N.Y. 2011) (collecting cases). Instead, Plaintiffs must merely meet their burden to allege "a similar legal issue as to coverage, exemption, or nonpayment o[f] minimum wages or overtime arising from at least a manageably similar factual setting with respect to their job requirements and pay provisions." De Luna-Guerrero, 338 F. Supp. 2d at 654 (internal citations omitted). Accordingly, Defendants' objection is overruled.
Additionally, Defendants contest Plaintiffs' reference to, and attempted utilization of, a three-year statute of limitations in their definition of the Proposed Class. As detailed above, Plaintiffs' definition of the Proposed Class includes auto body and paint technicians employed "at any time from March 24, 2011 to the present." (Pls.' Mot. for Conditional Class Certification, Ex. 4, at 1.) The entirety of Defendants' argument on the issue of the limitations period is their assertion that Plaintiffs' Proposed Class definition "goes outside of the standard two-year limitations period." (Defs.' Resp. to Pls.' Mot. for Conditional Certification 15, ECF No. 35.)
FLSA claims are typically subject to a two-year statute of limitations, but this period is extended to three years for "cause[s] of action arising out of a willful violation." 29 U.S.C. § 255(a). Plaintiffs here have alleged that Defendants willfully violated the FLSA.
Accordingly, Defendants' objection to the limitations period referenced by Plaintiffs in their definition of the Proposed Class is overruled. However, "[t]his ruling should not be interpreted as a finding that [Defendants] in fact did act willfully, or that a three-year statute of limitations will govern the case; those determinations will be made after notice and discovery." Sylvester, 2013 WL 5433593, at *5; see also Cheng Chung Liang v. J.C. Broadway Rest., Inc., No. 12 CIV. 1054, 2013 WL 2284882, at *2 (S.D.N.Y. May 23, 2013) ("Because it is disputed whether defendants' alleged violations were willful, the notice should err on the side of over-inclusivity and indicate that it covers violations that have occurred within the last three years (the statute of limitations for claims of willful FLSA violations)."). Instead, the Court finds merely that, for the limited purpose of conditional certification and approving the contents of the Court-facilitated notice, Plaintiffs' reference to the FLSA's three-year statute of limitations is appropriate. See Ahle v. Veracity Research Co., Civ. No. 09-00042ADM/RLE, 2009 WL 3103852, at *6 (D. Minn. Sept. 23, 2009).
In sum, the Court finds that Plaintiffs have met their modest burden of showing that they are similarly situated under 29 U.S.C. § 216(b). The Proposed Class includes all current or former employees of Defendants who were paid under the Plan, which Plaintiffs allege violates the overtime compensation and minimum wage requirements of the FLSA. Therefore, the Court conditionally certifies the following class of employees:
Plaintiffs also seek an order requiring Defendants to produce certain contact information for all members of the Proposed Class. More specifically, Plaintiffs seek the names, addresses, and telephone numbers for all current and former employees belonging to the Proposed Class. In their Response, Defendants consent to the production of the names and addresses of potential plaintiffs, should the Court grant Plaintiffs' Motion, but contend that Plaintiffs are not entitled to telephone numbers, in part because such production "subjects the potential class members to unsolicited telephone calls." (Defs.' Resp. 19.) Defendants also argue that requiring production of potential plaintiffs' telephone numbers will hamper the Court's ability to control the distribution of information, in turn frustrating the purpose of judicial participation in the notice process. In their Reply, Plaintiffs indicate that they are seeking the telephone numbers "for the limited purpose of locating putative plaintiffs whose Notice has been returned by the postal service." (Pls.' Reply Mem. in Supp. of Mot. for Conditional Class Certification 13, ECF No. 38.)
District courts have taken a number of positions as to what information regarding potential plaintiffs may be disclosed to named plaintiffs at the notice stage of FLSA actions.
Here, Plaintiffs base their "special need" for potential opt-in plaintiffs' telephone numbers on speculation that some potential plaintiffs' notices will be returned as undeliverable by the postal service. "[G]iven the greater intrusion that a telephone call entails and the openended nature of the resultant communication," the Court finds that Defendants need not produce that information to Plaintiffs at this time. Amrhein, 2014 WL 1155356, at *10. Accordingly, Plaintiffs' request that the Court order Defendants to produce the telephone numbers of potential plaintiffs is denied.
Having concluded that conditional certification of this action pursuant to § 216(b) is appropriate under the circumstances, the Court turns now to Plaintiffs' various requests regarding the Court-facilitated notice to potential opt-in plaintiffs, as well as Defendants' objections to the form and content of such notice.
Contemporaneously with their filing of the instant Motion, Plaintiffs have provided the Court with a proposed notice, titled "Important Notice About Your Right to Join a Lawsuit" ("Proposed Notice"). Plaintiffs seek the Court's approval of the Proposed Notice and the Court's authorization to send it to prospective opt-in plaintiffs. Defendants, in addition to requesting modification of the Proposed Notice to account for the various objections outlined above, also ask that the language of the Proposed Notice be amended in several other respects. The Court will address Defendants' exceptions to the Proposed Notice in turn.
Again, it is important to note that "district courts have discretion, in appropriate cases, to implement 29 U.S.C. § 216(b). . . by facilitating notice to potential plaintiffs." Hoffmann-La Roche, Inc., 493 U.S. at 169. In facilitating such notice under the FLSA, courts also have "broad discretion regarding the `details' of the notice sent to potential opt-in plaintiffs." Butler v. DirectSAT USA, LLC, 876 F.Supp.2d 560, 574 (quoting Lee v. ABC Carpet & Home, 236 F.R.D. 193, 202 (S.D.N.Y. 2006)). "Neither the statute, nor other courts, have specifically outlined what form court-authorized notice should take nor what provisions the notice should contain." Moore v. Eagle Sanitation, Inc., 276 F.R.D. 54, 60 (E.D.N.Y. 2011) (quoting Fasanelli v. Heartland Brewery, Inc., 516 F.Supp.2d 317, 323 (S.D.N.Y. 2007)). Moreover, the Supreme Court has expressly abstained from reviewing the contents of a proposed notice under § 216(b), instead "confirm[ing] the existence of the trial court's discretion, not the details of its exercise." Hoffman-La Roche, Inc., 493 U.S. at 170. Nevertheless, "[w]hen exercising its broad discretion to craft appropriate notices in individual cases, District Courts [should] consider the overarching policies of [the FLSA's] collective suit provisions." Velasquez, 2014 WL 2048425, at *9 (quoting Fasanelli, 516 F. Supp. 2d at 323 (internal quotation marks omitted)). "The[se] overarching policies . . . require that the proposed notice provide accurate and timely notice concerning the pendency of the collective action, so that potential plaintiffs can make informed decisions about whether to participate." Butler, 876 F. Supp. 2d at 574-75 (quoting Whitehorn v. Wolfgang's Steakhouse, Inc., 767 F.Supp.2d 445, 450 (S.D.N.Y. 2011)). "Absent reasonable objections by either the defendant or the Court, plaintiffs should be allowed to use the language of their choice in drafting the notice." Sylvester, 2013 WL 5433593, at *6 (quoting Kelly v. Bank of Am., N.A., 10 C 5332, 2011 WL 7718421, at *1 (N.D. Ill. Sept. 23, 2011) (internal quotation marks omitted)).
Defendants first ask the Court to revise the prefatory language of the Proposed Notice to narrow the scope of individuals to whom the notice is directed and ultimately sent. Specifically, Defendants request that the language be revised to include only those persons who worked in the Charleston and North Charleston locations and to reflect a two-year statute of limitations. For the reasons outlined above with regard to the scope of the Proposed Class, supra Part I, Defendants' objections are overruled.
Additionally, Defendants again seek to limit the applicable statute of limitations to two years and request that the references to the three-year limitations period in the third section of the Proposed Notice be changed to two years. Defendants also renew their request to exclude the Goose Creek location. For the reasons stated above, supra Part I, Defendants' objections are overruled.
Next, Defendants request that the Proposed Notice be amended to include language notifying potential plaintiffs that they may be required to participate in discovery and testify at trial. More specifically, Defendants ask that the following language be added to the fourth section of the Proposed Notice: "If you elect to join this lawsuit, you may be required to provide information, give a deposition under oath, produce documents, respond to written interrogatories, and/or testify in Court, including trial." (Defs.' Resp. 16.) The Court agrees with Defendants' request and hereby sustains their objection. As noted by the court in Byard v. Verizon West Virginia, Inc., 287 F.R.D. 365 (N.D. W. Va. 2012), "[c]ourts `routinely accept[]' text notifying potential plaintiffs `of the possibility that they will be required to participate in discovery and testify at trial.'" Id. at 374 (quoting Whitehorn, 767 F. Supp. 2d at 450); see Pack v. Investools, Inc., 2:09-CV-1042 TS, 2011 WL 5325290, at *4 (D. Utah Nov. 3, 2011) ("The Court finds that this information will be helpful to recipients deciding whether to participate in the suit . . . ."); Butler, 876 F. Supp. 2d at 575 (modifying proposed notice to advise potential plaintiffs of possibility of having to participate in discovery process and at trial). Therefore, the Court will amend Plaintiffs' Proposed Notice to include this additional information.
Lastly, Defendants request two changes to the language in the seventh section of Plaintiffs' Proposed Notice. Defendants first object to the fact that the Proposed Notice fails to disclose certain details regarding the fee Plaintiffs' counsel stands to earn in the event of recovery. Defendants primarily take exception to the fact that the Proposed Notice states that Plaintiffs' counsel will be paid "on a contingency fee basis out of any recovery" but does not disclose the exact percentage of the contingency fee.
In light of the foregoing, the Court authorizes Plaintiffs to issue a revised version of the Proposed Notice, as modified and amended herein ("Authorized Notice").
In their Motion, Plaintiffs request a notice period of ninety days from the date of mailing of the Authorized Notice for potential plaintiffs to file a notice indicating their consent to join this action. Defendants, noting that other courts have authorized notice periods between thirty and sixty days, object to Plaintiffs' request, claiming that under the circumstances of this case a thirty-day notice period is more appropriate. In support of their objection, Defendants argue that Plaintiffs' case has been pending for twelve months, with no new plaintiffs for the last eleven months, and that Plaintiffs have not appended affidavits from persons similarly situated who want to join the suit. Defendants also argue that a longer notice period will needlessly delay the litigation, as new opt-in plaintiffs will bring "the potential for new defenses or changes to the scope and/or timing of discovery." (Defs.' Resp. 14.) In their Reply, Plaintiffs indicate that they would agree to reduce their proposed notice period to sixty days.
As Defendants correctly note in their Response, district courts in the Fourth Circuit regularly authorize opt-in periods between thirty and sixty days. E.g., Byard, 287 F.R.D. at 373; Steinberg, 2011 WL 1335191, at *6. This Court recognizes the role it plays in litigation management and in the prompt resolution of disputes, and it appreciates Defendants' arguments in that respect. However, the Court agrees with Plaintiffs regarding Defendants' somewhat circular argument that Plaintiffs' supposed failure to identify additional potential opt-in plaintiffs thus far necessitates a shorter opt-in period. See Heckler v. DK Funding, LLC, 502 F.Supp.2d 777, 780 (N.D. Ill. 2007) ("[T]he logic behind defendants' proposed procedure—requiring [plaintiff] to show that others want to join in order to send them notice asking if they want to join—escapes the Court."). In this case, the Court finds that an opt-in period of sixty days from the date of mailing is reasonable under the circumstances.
For the foregoing reasons, it is
TO: ALL CHARLESTON COLLISION AUTO BODY TECHNICIANS AND/OR PAINT TECHNICIANS WHO WERE PAID BASED ON A COMMISSION HOUR AND WORKED AT ANY TIME FROM MARCH 24, 2011 THROUGH THE PRESENT
RE: YOUR RIGHT TO JOIN A LAWSUIT SEEKING TO RECOVER UNPAID OVERTIME COMPENSATION AND UNPAID MINIMUM WAGES
DATE: [DATE OF ORDER]
This Notice is to inform you of a collective action lawsuit, filed under the Federal Fair Labor Standards Act, in which you may be "similarly situated" to the named Plaintiffs, and to instruct you on the procedure for participating in this lawsuit if you choose to do so.
Plaintiffs Raymond H. Schmidt and Derek Brandon Haynes (collectively referred to as the "Plaintiffs") filed a Complaint in the United States District Court for the District of South Carolina, Charleston Division, Civil Action No: 2:14-CV-1094-PMD (the "Lawsuit") seeking unpaid minimum wages and overtime rate of one and one-half times his or her regular rate of pay for all hours worked in excess of forty in a workweek against Charleston Collision Holdings Corp., Charleston Collision, LLC; Charleston Collision II, LLC; Charleston Collision III, LLC; and Andrew J. Leone (collectively referred to as the "Defendants"). Plaintiffs pursue these claims on behalf of themselves and all current and former Auto Body Technicians and/or Paint Technicians who worked at any Charleston Collision location during the time period beginning March 24, 2011 through the present and were paid on a "commission hour" rather than their actual hours worked.
Federal laws require an employer to compensate an employee (1) a minimum wage of $7.25 per hour and (2) an overtime rate of one and one-half times his or her regular rate of pay for all hours worked in excess of forty in a workweek, unless the employee is lawfully exempt from the overtime compensation and minimum wage requirements of the Fair Labor Standards Act. Plaintiffs assert that the Defendants failed to pay them and other similarly situated employees all required minimum wages and overtime compensation. Plaintiffs allege that the Defendants' actions violate the federal Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA"). Plaintiffs are suing to recover the allegedly unpaid minimum wages and overtime compensation for themselves and for any other similarly situated employee(s), and also seek to recover for themselves and for any other similarly situated employee(s) an additional equal amount as liquidated damages, plus reasonable attorneys' fees and costs.
The Defendants deny Plaintiffs' claims in the lawsuit, deny any liability, and deny any wrongdoing. The Lawsuit is in the early stages of litigation, and the Court has not ruled on the Plaintiffs' claims or the Defendants' defenses.
You may join this Lawsuit ("opt-in") as a Party if you are a current or former Auto Body Technician and/or Paint Technician who worked at any Charleston Collision location during the time period beginning March 24, 2011 through the present and were paid based on "commission hours." You are not required to join this lawsuit. If, however, you wish to join as a Party, you may complete and sign the enclosed "Consent to Become a Party" form and mail it to Plaintiffs' counsel at:
If you decide to join this lawsuit, you must return the signed form to Plaintiffs' counsel in time for counsel to file your "Consent to Become a Party" to this action with the Court
If you choose to join in the Lawsuit, you will be bound by the Court's decision, whether it is favorable or unfavorable. If you elect to join this lawsuit, you may be required to provide information, give a deposition under oath, produce documents, respond to written interrogatories, and/or testify in Court, including trial. You will also give up the right to file a suit in a separate action for the claims made in this case.
If you choose not to join this Lawsuit, your rights will not be affected by any judgment or settlement rendered in this case, whether favorable or unfavorable to the class. If you choose not to join in this Lawsuit, you are free to file your own lawsuit and be represented by an attorney of your choice.
Federal law prohibits any discrimination or retaliation against you because you have exercised your rights under the FLSA by filing or joining a lawsuit seeking to enforce your rights. Examples of prohibited retaliation include: discharge from employment; demotion; suspension; or other adverse actions.
If you join this suit, your interests will be represented by the Plaintiffs' attorneys identified in Section 3 above. The attorneys for the Plaintiffs seek payment of attorneys' fees on a contingency fee basis out of any recovery. If there is no recovery, there will be no attorneys' fees. If there is a recovery, the attorneys for the Plaintiffs may receive a part of any settlement obtained or money judgment entered in favor of all of the Plaintiffs. If you join this suit and agree to be represented by Plaintiffs' counsel, then you agree to a contingency fee agreement, a copy of which is available from Plaintiffs' counsel, and you designate Plaintiffs' counsel as your attorney to make decisions on your behalf concerning the litigation, the method and manner of conducting the litigation, and all other matters pertaining to this lawsuit.
Further information about this Notice, the deadline for filing a "Consent to Become a Party," or questions concerning this lawsuit may be obtained by writing or telephoning Plaintiffs' counsel at the addresses, Email addresses, or telephone numbers stated above.
Desmond v. PNGI Charles Town Gaming, L.L.C., 630 F.3d 351, 358 (4th Cir. 2011) (alteration in original) (citations omitted) (quoting McLaughlin, 486 U.S. at 133, 135).
