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Vinsant v. Myexperian, Inc.

United States District Court, W.D. Arkansas, Fort Smith Division

July 5, 2018

CHARLES VINSANT, Individually and on behalf of all others similarly situated, et al. PLAINTIFFS



         Before the Court is Plaintiffs' motion (Doc. 17) for conditional certification of a collective action and brief in support (Doc. 18). Defendant filed a response in opposition (Doc. 23), and Plaintiffs filed a reply (Doc. 27). The Court has considered the parties' filings and supporting documents and, for the following reasons, finds that Plaintiffs' motion should be GRANTED IN PART and DENIED IN PART.

         I. Background

         Defendant MyExperian, Inc. operates call centers. Plaintiffs Charles Vinsant, Tara Beal, Chelsea Dyer, Ashley Hamilton, Antwan Hendry, Belinda Maxwell, Brittany Morris, Kimberly Roland, and Betty Fuller state that they worked as Supervisors and Customer Service Representatives (“CCS”)[1] at Defendant's Call Centers. CCS's primary duties are to take phone calls and assist customers. Supervisors' primary duty is supervising CCSs. Plaintiffs contend that they were not paid overtime compensation in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et. seq.

         Plaintiffs seek conditional certification of their FLSA claims as a collective action pursuant to 29 U.S.C. § 216(b). In addition, Plaintiffs request that the Court approve the form and content of Plaintiffs' proposed notice, consent to join form, and follow-up postcard for distribution to members of the class via U.S. Mail and electronically; request a 90-day opt-in period; and order Defendant to provide relevant contact information for putative class members.

         II. Discussion

         1. Conditional Certification

         Under § 216(b) of the FLSA, a collective action for unpaid minimum wage or unpaid overtime compensation may be maintained against an employer by “any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). However, “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is pending.” 29 U.S.C. § 216(b). Therefore, the FLSA “allows as class members only those who ‘opt-in.'” Schmidt v. Fuller Brush Co., 527 F.2d 532, 536 (8th Cir. 1975).

         The FLSA gives the Court “the requisite procedural authority to manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure.” Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989). “The court has a ‘responsibility to avoid the “stirring up” of litigation through unwarranted solicitation' of potential opt-in plaintiffs . . . but the district court should, ‘in appropriate cases,' exercise its discretion to facilitate notice to potential plaintiffs.” Bouaphakeo v. Tyson Foods, Inc., 564 F.Supp.2d 870, 890 (N.D. Iowa 2008) (citations omitted).

         Neither § 216(b) nor the Eighth Circuit Court of Appeals has defined when “other employees [are] similarly situated” so that collective action certification and authorization of notice is appropriate. Davenport v. Charter Commc'ns., LLC, 2015 WL 164001, *4 (E.D. Mo. Jan. 13, 2015). However, most courts within the Eighth Circuit, including this Court, most frequently use a two-stage approach for collective action certification under § 216(b). See e.g., Resendiz-Ramirez v. P & H Forestry, L.L.C., 515 F.Supp.2d 937, 941 (W.D. Ark. 2007) (“The Court is convinced that the more prudent approach is to use the two-stage certification analysis that is used by a majority of courts, including a majority of district courts in the Eighth Circuit.”). Nothing in Eighth Circuit or United States Supreme Court precedent requires district courts to utilize this approach; rather, “[t]he decision to create an opt-in class under § 216(b), like the decision on class certification under Rule 23, remains soundly within the discretion of the district court.” Bouaphakeo, 564 F.Supp.2d at 891.

         The two-stage approach to certifying a collective action is divided into (1) the notice stage and (2) the opt-in or merits stage. Resendiz-Ramirez, 515 F.Supp.2d at 940-41.

         At the notice stage, plaintiffs face a lenient burden to show that they are “similarly situated” to the putative collective action class. Id. at 941. To meet this lenient burden, plaintiffs must make a modest factual showing that plaintiffs and putative class members were victims of a common decision, policy, or plan of the employer that affected all class members in a similar manner. Id. “Although credibility determinations and findings of fact are not required at this stage, some identifiable facts or legal nexus must bind the claims so that hearing the cases together promotes judicial efficiency.” Jost v. Commonwealth Land Title Ins. Co., 2009 WL 211943, *2 (E.D. Mo. Jan. 27, 2009) (citation omitted). “During the notice stage, the court makes a decision-usually based only on the pleadings and affidavits which have been submitted-whether notice should be given to potential class members.” Resendiz-Ramirez, 515 F.Supp.2d at 940. “If the court allows for notification, the court typically creates conditional certification of a representative class and allows notice to be sent to the potential opt-in plaintiffs.” Id.

         At the opt-in or merits stage, typically precipitated by a motion to decertify by the defendant after discovery is largely complete, plaintiffs seeking to maintain the collective action bear a higher burden to show that they are similarly situated and that the case should continue to trial as a collective action. Kautsch v. Premier Commc'ns, 2008 WL 294271, *1 (W.D. Mo. Jan. 31, 2008). Still, plaintiffs need not show that they are identically situated. Fast v. Applebee's Int'l., Inc., 243 F.R.D. 360, 363 (W.D. Mo. 2007). Instead, the Court considers the following factors to determine if plaintiffs are indeed similarly situated: (1) employment and factual settings of plaintiffs; (2) various defenses available to defendants; and (3) considerations of fairness, procedure, and manageability. Bouaphakeo, 564 F.Supp.2d at 892. “The district court must assess these factors in light of ‘the fundamental purpose of 29 U.S.C. § 216(b): (1) to lower costs to the plaintiffs through the pooling of resources; and (2) to limit the controversy to one proceeding which efficiently resolves common issues of law and fact that arose from the same alleged activity.'” Id. (citations omitted).

         Plaintiffs request that the Court conditionally certify and approve notice to all potential class members for a class defined as:

Each hourly-paid supervisor and/or customer service representative who worked for Defendant MyExperian, Inc. (Defendant), ...

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