DENA HANOVICE PALERMO, UNITED STATES MAGISTRATE JUDGE.
On June 23, 2016, the Court conditionally certified this suit for unpaid overtime compensation as a collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). [Dkt. No. 35.] Now pending before the Court is the parties' Joint Proposed Order Authorizing Distribution of the "Notice" and "Consent to Join" Forms. [Dkt. No. 36.] The Court held a hearing on the proposed forms on July 6, 2016.
Courts have a managerial responsibility to oversee the process by which putative class members are given notice of, and allowed to join, a collective action suit under the FLSA. Hoffmann-La Roche v. Sperling, 493 U.S. 165, 169-70, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). In particular, courts have a duty to supervise the form and content of notices to ensure that potential plaintiffs receive accurate and timely information about the suit. Reyes v. Quality Logging, Inc., 52 F.Supp.3d 849, 851-52 (S.D.Tex.2014) (Saldaña, J.). Although plaintiffs may generally use their preferred language in drafting notices, courts must "ensure that the notice is fair and accurate." Vargas v. Richardson Trident Co., No. H-09-1674, 2010 WL 730155, at *11 (S.D.Tex. Feb. 22, 2010) (Harmon, J.) (quoting King v. ITT Cont'l Baking Co., No. 84 C 3410, 1986 WL 2628, at *3 (N.D.Ill. Feb. 18, 1986)) (internal quotation marks omitted).
The Court has reviewed the parties' proposed notice and consent forms and finds that two modifications are necessary to ensure that they are fair and accurate.
The proposed notice contains the following language regarding costs that individual opt-in plaintiffs may incur by joining this suit:
The Court finds the phrase "and you may be liable for court costs" to be "unnecessary and potentially confusing." Reyes, 52 F.Supp.3d at 854 (quoting Sexton v. Franklin First Fin., Ltd., 2009 WL 1706535, at *12 (E.D.N.Y. June 16, 2009)). There is only a "remote possibility" that such costs will be other than de minimis. Id. (quoting Guzman v. VLM, Inc., No.
The Court will therefore strike the phrase "and you may be liable for court costs" from the notice form.
The proposed notice states the following under the heading "Legal Counsel":
The proposed consent form likewise contains the following language:
"Informing potential plaintiffs of their right to choose their own counsel is an appropriate element in a notice." Heaps v. Safelite Solutions, LLC, No. 2:10 CV 729, 2011 WL 1325207, at *9 (S.D.Ohio Apr. 5, 2011) (requiring that notice contain "a statement indicating that the opt-in plaintiffs are entitled to be represented by the named [p]laintiffs' counsel or by counsel of his or her own choosing") (collecting supporting cases). Courts have required that notice language inform potential optin plaintiffs of their "right to have an outside attorney actually represent them, not merely advise them whether to join the class." Guzman, 2007 WL 2994278, at *7-8 (modifying notice language because opt-in plaintiffs "may not understand that they have [such] a right"); see also Rosario, 828 F.Supp.2d at 520 (finding statement that "[y]ou can join this lawsuit by representing yourself or by [retaining] counsel of your own choosing" to be "sufficient to inform opt-in plaintiffs of their right to retain separate counsel"); Delaney v. Geisha NYC, LLC, 261 F.R.D. 55, 60 (S.D.N.Y. 2009) ("Because the notice states that optin plaintiffs can select their own counsel, there is only a minimal risk that opt-in plaintiffs will be discouraged from seeking their own counsel."); Soler v. G & U, Inc., 86 F.R.D. 524, 530 (S.D.N.Y.1980) ("The workers should be informed that they may retain their own counsel ....").
In Garcia v. Poncho Villa's of Huntington Vill., Inc., 678 F.Supp.2d 89 (E.D.N.Y. 2010), for instance, the court rejected a proposed notice and consent form stating that "[i]f you choose to join this suit, and agree to be represented by the plaintiffs' attorneys, your counsel in this action will be [plaintiffs' attorneys]" because the language failed to make clear that "proposed plaintiffs are not required to accept plaintiffs' counsel as their own." Id. at 95 (internal quotation marks omitted). The court therefore directed the plaintiffs "to modify the proposed [n]otice so that potential plaintiffs are informed that they may retain their own counsel, should they choose to join the within litigation, as an alternative to plaintiffs' counsel's firm." Id.
Here, Plaintiff's counsel argues that language informing potential opt-in plaintiffs of their right to retain their own counsel to represent them in this proceeding would create managerial difficulties. That concern is not without some basis. See Castillo v. Alkire Subway, No. H-08-CV-2658, 2009 WL 9529354, at *6 (S.D.Tex. Apr. 30, 2009) (Ellison, J.) ("Defendant's suggestion that the notice inform potential plaintiffs that they may opt in and bring their own lawyer `would lead to confusion, inefficiency and cumbersome proceedings.'") (internal quotation marks omitted) (quoting Adams v. Inter — Con Sec. Sys. Inc., 242 F.R.D. 530, 541 (N.D.Cal.2007)). At the same time, however, excluding such language would effectively require opt-in plaintiffs to either: (a) accept representation by Plaintiff's attorneys alone and forgo their right to retain counsel of their own choosing;
In the Court's view, these conflicting interests can be appropriately reconciled by modifying the notice and consent form language as follows. First, the notice form shall read:
In addition, the consent form shall state:
Modified in this way, the forms will ensure that potential opt-in plaintiffs are properly apprised of their right to select their own legal counsel. Furthermore, by providing that the Court will consider adding an optin plaintiff's attorney as co-counsel "on proper motion," the revised language will permit the Court to deal with specific managerial complications if and when they arise.
For the foregoing reasons, the proposed Notice, Reminder, and Consent forms are
The Court
Plaintiff and Plaintiff's counsel will treat all contact information Defendant provided concerning the Putative Class Members as confidential and will not disclose such information to third parties.
Plaintiff's counsel shall send a copy of the Court-approved Notice and Consent Form via regular U.S. Mail and e-mail to all persons contained on the list within fifteen (15) days of receiving the list from Defendant. Plaintiff's counsel shall include a self-addressed stamped envelope in the mailing. A reminder post card may be sent 30 days after the initial mailing. All consent forms shall be returned to Plaintiff's counsel, who will file the Consents with the Court within 10 days of receipt.
Any Putative Class Members who wish to opt into this lawsuit must properly complete the Consent to Join form the Court approved and return it to Plaintiff's counsel on or before sixty (60) days from the date the Notice is mailed. Any potential opt-in plaintiff whose Consent to Join is postmarked after the deadline date will not be able to participate in this lawsuit.
The purpose of this Notice is to:
You have been sent this Notice because Pason's employment records indicate that you are an eligible member of the Plaintiff's conditionally certified collective action.
On August 1, 2015, Plaintiff, Donny Ratliff, filed a collective action lawsuit in the United States District Court, Southern District of Texas, Houston Division, against Pason. The lawsuit claims that Pason employees who held the Field Service & Sales Technician ("FSST") job title should have received
Pason denies Mr. Ratliff's claims and asserts that it has complied with the FLSA and properly compensated all of its FSSTs. Pason asserts that no overtime is owed because the FSSTs qualify as exempt under the FLSA. Pason asserts that it formulated its pay practices based on the results from a Department of Labor investigation.
Current and former Field Service & Sales Technicians who worked for Pason Systems USA Corp. ("Pason") between June 23, 2013 and June 23, 2016.
You have the right to join this lawsuit. To do so, complete the "Consent to Join" form enclosed with this Notice, sign the form, and mail/e-mail/fax it to:
If your completed "Consent to Join" form is not post-marked on or before 60 days after the mailing date of the Notice, you will not be able to participate in this lawsuit.
Whether or not you join this lawsuit is entirely your decision. The law only allows a person to recover up to three (3) years of back wages
If you choose to join this lawsuit, you will be a Plaintiff in the case and you will be bound by any judgment on any claim you have against Pason under the FLSA, whether favorable or unfavorable. That means that, if you win, you may be eligible to share in the monetary award. If you lose, no money will be awarded to you.
While this lawsuit is proceeding, you may be required to answer various questions about your employment, give your lawyers any documents you have related to your work at Pason, and potentially attend trial in Houston or a deposition.
If you choose not to join this lawsuit, you will not be affected or bound by any judgment rendered in this lawsuit, whether it is favorable or unfavorable.
This Notice is for the sole purpose of providing current and former Pason workers with information concerning their potential right to join this lawsuit. Although the Court has authorized this Notice and its contents, the Court takes no position regarding the merits of Plaintiff Ratliff's claims or Pason's defenses, and there is no
If you choose to join this lawsuit, federal law prohibits Pason from firing you or otherwise discriminating against you because of that choice. You are entitled to enforce your rights under the FLSA.
If you choose to join this lawsuit, you may choose to have Plaintiff Ratliff's attorneys represent you. Alternatively, you may consult your own attorney and, on proper motion, filed by ________ [90 days from the date the Notice is mailed], the Court will consider adding that attorney as co-counsel. Plaintiff Ratliff s attorneys are:
You are free to consult the files for this case, which are located in the Clerk's Office of the United States District Court for the Southern District of Texas-Houston Division, 515 Rusk Avenue Houston, TX 77002.
Dated: _____
Notice Materials were recently mailed and emailed to you in regard to the Donny Ratliff v. Pason Systems USA Corp., lawsuit alleging unpaid overtime violations of the Fair Labor Standards Act ("FLSA").
In order to participate in this unpaid overtime lawsuit, you must complete, sign, and mail, fax or email the Consent Form contained in the Notice Materials so that it is received by Ratliff's attorneys (at the address below) on or before _____, 2016.
If you did not receive your Notice Materials, please contact Ratliff's attorneys at 888-751-7050 or at backwages@fibichlaw. com to request another copy be sent to you.
OVERTIME LAWSUIT AGAINST PASON C/O ANDREW W. DUNLAP FIBICH, LEEBRON, COPELAND, BRIGGS & JOSEPHSON 1150 BISSONNET STREET HOUSTON, TEXAS 77005
1. I understand that a lawsuit has been brought under the Fair Labor Standards Act ("FLSA") and that it seeks alleged unpaid overtime wages from Pason Systems USA Corp. ("Pason"). I have read the Notice accompanying this Consent to Join. I work, or have worked, for Pason as a Field Service & Sales Technician at some point between June 23, 2013 to June 23, 2016.
2. By signing this Consent to Join, I am agreeing to be bound by any adjudication of this action, whether it is favorable or unfavorable. I further agree to be bound by any collective action settlement herein approved by this Court.
3. Check one:
4. I understand that I may participate in this lawsuit only if my completed, signed, and dated "Consent to Join" form is postmarked and mailed to Fibich, Leebron, Copeland, Briggs & Josephson on or before _____ [60 days from the notice mailing date].
5. I understand that this Consent to Join form will be filed with the Court.