United States District Court, W.D. Arkansas, Fort Smith Division
CHARLES VINSANT, Individually and on behalf of all others similarly situated, et al. PLAINTIFFS
MYEXPERIAN, INC. DEFENDANT
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
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.
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”) 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.
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.
§ 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).
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).
§ 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
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
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.
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).
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.