Raniere et al v. Citigroup Inc. et al, No. 1:2011cv02448 - Document 73 (S.D.N.Y. 2011)

Court Description: OPINION re: 11 MOTION to Dismiss or, in the Alternative, to Transfer or Stay filed by Citigroup Inc., Citibank, N.A., Citimortgage Inc., 16 FIRST MOTION to Certify Class Conditionally and for Other Related Relief filed by Mark A. Vo sburgh, Nichol Bodden, Tara Raniere, 26 MOTION to Compel Arbitration filed by Citigroup Inc., Citibank, N.A., Citimortgage Inc. Based upon the foregoing, Defendants' motion to dismiss, or in the alternative transfer or stay, is denied; Defenda nts' motion to compel arbitration of the claims of plaintiffs Raniere and Bodden is denied, and Plaintiffs' motion for conditional certification of an FLSA collective and related relief is granted. (Signed by Judge Robert W. Sweet on 11/22/2011) (mro)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - ---X TARA RANIERE, NICHOL BODDEN, and, MARK A. VOSBURGH, on behalf of themselves Individually, and on behalf of all similarly-situated persons, Plaintiffs, 11 Civ. 2448 -against OPINION CITIGROUP INC., CITIBANK, N.A., and CITIMORTGAGE, INC., Defendants. - - ----X A P PEA RAN C E S: Attorneys for Plaintiffs THOMPSON WIGDOR LLP 85 Fifth Avenue New York, NY 10003 By: Douglas Wigdor, Esq. David Gottlieb, Esq. Kenneth Thompson, Esq. Stephen Vargas, Esq. Attorneys for Defendants MORGAN, LEWIS, & BOCKIUS LLP 101 Park Avenue New York, NY 10178 By: Sam Shaulson, Esq. Ellyn Pearlstein, Esq. rr=0' .~----- USDC SONY UOCUMENT ...", . Sweet, D. J. Nichol ("Rani ere" ) , ("Vosburgh") (together, uncompensated Plaintiffs "Defendants" overtime also seek Raniere and Mark Vosburgh the "Plaintiffs") action against Citigroup Inc., Inc. Tara ( "Bodden") , Bodden (collectively, plaintiffs the action, this In wages have brought this Citibank, N.A., or "Citi") as well certification to as of and CitiMortgage recover allegedly liquidated a putative damages. nationwide collective action under the Fair Labor Standards Act 29 U.S.C. § 201 et seq. as well as a New York class action under the New York Labor Law ("NYLL") § 190 et seq. This opinion addresses three motions: motion to dismiss or, action; in the ternative, Plaintiffs' (2 ) motion certification, Court-facilitated persons, and expedited members' contact compel ("FLSA"), information; arbitration of transfer or stay this for notice disclosure and conditional to of (3) (1) Defendants' similarly potential Defendants' the claims brought FLSA situated collective motion by plainti ffs to Bodden and Raniere. Based dismiss, trans upon the following, Defendants' motion to , or stay is denied; and Defendants' motion to 1 arbitration compel conditional is collective denied; and Plaintiff's certification and motion related for relief is on April 8, granted. Prior Proceedings This action was 2011. On May 3, 2011, Defendants filed a motion to dismiss, or in the al ternative, 2011, commenced by Plaintiffs Plaintiffs stay or transfer this act ion. filed a motion for certification and related relief. conditional On May 13, filed a motion to compel arbitration. 2011, On May 6, collective Defendants These motions were marked fully submitted on June 7, 2011. Facts Alleged1 This suit was brought by Raniere, who has been employed by Defendants as a "Home Lending Specialist" since June 8, 1981,2 Bodden, who has been employed by Defendants as a "Home Lending Specialist" was employed by since February 6, Defendants as a 1987, "Loan and Vosburgh, Consultant" who between Unless otherwise noted, the allegations set forth here are drawn from the Complaint. The Complaint states at one point that Raniere was employed as a Home Lending Specialist since June 8, 1981 (Compl. ~ 14), while in another it alleges she has been employed in that role since June 9, 1981 (Compl. ~ 21). Neither date affects the instant motions. 2 October 30, that each 2002 and February 2, of the named 2009. Plaintiffs The Complaint alleges is a resident of Suffolk County, New York. According to the Complaint, is a global financial services financial products and services, credit, Defendant holding is a company Inc. providing including consumer banking and corporate and investment banking, and wealth management. Ci tigroup ~ (Compl. securities brokerage, 18.) As alleged, Citibank, N.A. subsidiary of Citigroup Inc. financial services company that services, banking, lending and investment services. fers financial Defendant and a global products and Defendant CitiMortgage Inc. is likewise a subsidiary of Citigroup Inc. and provides mortgage services including credit products banking, Both cards. and services insurance, Citigroup Inc. and other asset and financial management, Citibank, and N.A. are Delaware corporations with principal places of business at 399 Park Avenue, New York, New York (Compl. ~ 18-19), while CitiMortgage Inc. is a New York corporation (Compl. ~ 20). Plaintiffs FLSA by allege failing pay to that Citi Plaintiffs willfully and other violated members of the the putative FLSA collective the prevailing one and one-half times their regular rates of pay for 3 hours worked in excess of 40 hours per week. Plaintiffs policies and practices, assert that pursuant to Citi's the members of the putative collective were improperly classified as exempt from the provisions of the FLSA and improperly denied overtime compensation to which they were entitled. According changed to frequently Plaintiffs, throughout while their their employment," duties have never materially changed." (Compl. ~ of their duties while employed by Defendants, complete which mortgage were employees." applications "primarily (Compl. ~ for referred 25.) "job titles "their 24.)3 job As part aintiffs "would CitiMortgage's to customers," Plaintiffs other by Citi Plaintiffs "would collect financial information and documents from a particular customer and would enter the software I" financial information termed "Contact Manager, into If Defendants' computer which would then identify whether the customer was conditionally approved for a particular mortgage based on the provided financial information. 26. ) was (Compl. ~ Plaintiffs would "notify the customer whether he or she conditionally approved for the particular mortgage" and "[i]f the customer was conditionally approved for the mortgage, Plaintiffs would request additional financ documents from the Plaintiffs specifically allege that" [o]n April job titles changed from 'Loan Consultant' to 'Home (CampI. ~ 24.) 30, 2009, Plaintiffs' Lending Specialist. '" 4 customer to satisfy Manager. 11 ~ (Compl. Processor to the review conditions 27.) the set "Plaintiffs customers' forth from would mortgage then Contact notify application," a and "[a]fter a review of the mortgage application and documents, the would Processor Underwri ter Complaint, a for forward the approval." mortgage ~ (Compl . application an According to 28.) to the "Plaintiffs had no authority to approve or disapprove mortgage application; instead, Plaintiffs followed Citi's internal processes to gather necessary information and documents for a customer's mortgage application to be processed." ~ 29. ) Additionally, Plaintiffs assert that they customarily or regularly direct two or more persons" had no management responsibilities." According to (Compl. the Complaint, ~ (Compl. "did not and "they 30.) prior to July 18, 2010, Plaintiffs were not required to record their time spent working, and as such Plaintiffs' Defendants hours worked. did not maintain (Compl. ~ 35.) records concerning However, Plaintiffs allege that throughout their course of employment, they "worked substantially in excess of 40 hours per week, frequently working between ~ 50 and 70 hours per week" (Compl. 36.), and that Defendants offered or permitted Plaintiffs to work such overtime hours. (Comp I. ~ 37 . ) 5 Plaintiffs contend that until on or about September 1, 2010, they were not paid overtime compensation for hours worked in excess of 40 hours per week September 1, 2010, for hours overtime short of what provisions./I is worked, ~ (Compl. however, /I required under the the Allison individuals or about compensation FLSA and NYLL falls overtime date the filing have been of this filed: (Dkt. No. this of Singer, action, four Hind, David David filed notices of consent to opt-in to (See Gilly Aff., Bissera Paskaleva "this commencement this action. consent " [0] n 39.) Halasz, and Lori Lesser - of 38). Plaintiffs began receiving some compensation Following additional ~ (Compl. Ex. C (Dkt. Order, by four Edward No. additional Gajdosik Karen Shuldiner 70), As of the 18).) notices (Dkt. No. (Dkt. No. of 65), 71), and Kimmy Jackson (Dkt. No. 72). Discussion I. Defendants' Motion to Dismiss or, in the Alternative, Stay or Transfer this Action is Denied Defendants alternative, stay before Plaintiffs or have moved transfer this to action tiled their complaint, 6 dismiss a on in the basis that or, the different plaintiff in the Southern District of Florida filed an action styled as a nationwide collective under the FLSA, likewise claiming that CitiMortgage loan officers were denied overtime compensation for all hours worked over forty per work week. (citing Ursula on Corgosinno, her own (Defs. MTD Mem. behalf and 1 others similarly situated v. CitiMortgage, Inc., No. 11-60613-CIV-COHN, S.D. Fla.) (Dkt. No. 13) According "nearly identical .)4 to Defendants, FLSA the claim[s], two complaints overlapping purported definitions and claims, and the same legal issues. 11 such, Defendants be under the Southern f argue t-filed rule District ligation that is of this or Florida should alternately or stayed (Id. ) concluded. Defendants cite 800-Flowers action Inc., For v. the this i As dismissed to the Corgosinno proposition, Intercontinental Inc., 860 F. Supp. 128, 131 (S.D.N.Y. 1994) class Id. transferred until assert orist, Goldberger v. Bear, Stearns & Co., No. 98 Civ. 8677, 2000 U.S. Dist. LEXIS 18714, at *5 (S.D.N.Y. Dec. 28, 2000) i and Comedy Partners v. Street . , 34 F. Supp. 2d 194, 196 (S.D.N.Y. 1999) . The rule referenced by Defendants, however, is not so rigid as 4 For ease, the parties' briefing regarding Defendants' motion to dismiss, transfer or stay will be denoted "MTD Mem. The briefing regarding Defendants' motion to compel arbitration will be cited as "Compel Mem./I And the memoranda regarding Plaintiffs motion for conditional certification will be denoted "Cert. Mem./I /I 7 they would have it and does not warrant dismissal, a stay, or transfer As a general rule, lawsuits, Nat'l the Bank & first Trust Co. (quoting 1989) suit Motion & Werner should v. Inc., judi 804 avoiding duplicative and lit priority.'" 878 F.2d 76, F.2d 19 16, First -----~"- 79 Technicians (2d Loc. (2d 780 Cir. v. 1986) ) e "embodies considerations of This administration "As have Picture in original) . choice of forum. there are two compet Simmons, ------=---~-~------~~---- (alterat ,,\ [w] conservation ion and of honoring resources" the by aintiff's Id. at 80. part of its general power to administer its docket, a district court may stay or dismiss a suit" where it is "duplicative of another f N.A., 226 F.3d 133, "complex problems" 138 court suit." Curtis v. Citibank, (2d Cir. that mUltiple 2006).5 federal In considering the filings can produce, Second Circuit has noted that there is no "rigid test" but instead that a dist ct court is requi to "consider equi ties of the situation when exercising its discretion. II the Id. SAs with challenges, arguments on this ground may properly be made via a smiss. See, e.g., No. 09 civ. 737, 2011 WL 2471295, at *11 *12 (D.Conn. June 21, 2011); New Hyde Park Car Care Center, Inc. v. Cumberland Farms, Inc., No. 09 civ. 1535, 2011 WL 2462753, at *2 (E.D.N.Y. June 17, 2011). 8 "A court faced with a duplicative suit will commonly at 138. stay the second suit, parties from actions." proceeding Id. The foster dismiss it without prejudice, with it, or consolidate power judicial smiss to economy and duplicative the suits "comprehensive concurrent litigation over the same subject. duplication between second issues, suits aims or actions, involved similar facts, the 97 the is two (2d Cir. Id. parties, In assessing the first similar legal of wrongful Maharaj v. BankAmerica Corp., 1997) (citing S.E.C. v. Inc' l 101 F.3d 1450, 1463 (2d Cir. 1996)). Instead / " [t]he true sui t pending another forum is the legal first suitl finally disposed of, as efficacy of 'thing adjudged matters at issue in the second suit." Curtis l (2d Cir. 154 U.S. noted l 2000) 118, "[t]he 128 First Jersey Sec., test of the sufficiency of a plea of the to vexation of "the fact same meant disposition of or essentially the same conduct is not dispositive." F.3d 94, the (citations omitted). litigation" as well as to protect parties from and enj in when regarding I I the 226 F.3d at 138 (quoting United States v. The Haytian Republic 124 (1894)). Sixth I As one judge in this district has Circuit has adopted a similar standard l defining duplicative lawsuits as those in which the issues 'have such an identity that a determination 9 in one action leaves ermined in the other. little or nothing to be Rite Aid l 08 Civ. March 23 1 2010) Cir. 1997)) 1 (quoting Smith v. S.E,C' 235 (D. Conn. 2003) filed rule applies fact the suits Naula v. /I 2010 U.S. Dist. LEXIS 29699 see also Alden Corp. i Supp. 2d 233 113464 1 I v. I 129 F.3d 356 (S.D.N.Y. 361 1 Eazypower Corp. (6th 294 I F. ("In determining if the first the court must carefully consider whether in l are duplicative. (citing Curtis /I l 226 F. 3d at 136)). The Corgosinno litigation and the instant case are not identical. plaintiff First in collective l following the filing of this motion Corgosinno action, converts led stating collect a that notice l action "[iJn the sole l withdrawing so originally FLSA doing, Plaintiff filed into an individual action and Plaintiff will pursue this action on her individual basis only. omitted) (Dkt. No. (Gilly Decl. Ex. II 30).) At the time of that notice had progressed on Corgosinno/s claims schedule, including a August 2011 discovery deadline. Ex. 51 C (Dkt. No. 12)). I, at 1 n. 1 trial date I (citations discovery l and a detailed pre-trial l had been set after the See Shaul son Decl. By that point ~~ 4-6 & the individual plaintiff l had taken no action to pursue her case as a collective action, and no additional plaintiff case. plaintiffs had opted-in See Gilly Decl. Ex. 3 10 to her single- (Dkt. No. 30)). Because the Corgosinno aintiff claims and withdraw overlapping chose col classes to pursue only her individual ive action, there is no threat of through the creation of "nearly identical nationwide collective actions covering the same time period and same Ci tiMortgage loan officers" (Defs. MTD Mem. 4), nor the possibility of inconsistent judgments and conflicting rulings on conditional certification as Defendants See Defs. MTD Mem. 6.) Furthermore, entit s--CitiBank, single defendant, the N.A. instant action names two defendant and CitiGroup Inc.--in addition to Ci tiMortgage Inc., named in Corgosinno, and Corgosinno does not include claims regarding a putative New York class, as Plaintiffs' suit does, which would entail, among other things, a different statute of limitations. Defendants question the Corgosinno plaintiff's filing of her notice of withdrawal, (Defs. MTD Reply Mem. 1.) which they describe as "curious. Specifically, Defendants point out that Corgosinno filed her Notice of Withdrawal on May 18, days after trans fi or stay on May (Dkt. No. than Defendants 54).) three hours the 3, instant 2011. See In addition, after the motion to Shaul son Decl., Withdrawal filing, 2011, dismiss, according to Defendants, 11 II Ex. "[1] A ess Plaintiffs requested that CitiMortgage withdraw the Motion. (Id.) 1t (citing Defendants argue that this Shaul son Decl. 10 11 (Dkt. No. 54).) temporal proximity suggests collusion and forum shopping. Id. (citations omitted).) While it is well established that a court may dismiss, transfer, or stay a brewing in the first set sail district. 1197, 1203 where a plaintiff court, [and] tr [ies] the hopefully more favorable Semmes Motors, for It case (2d Cir. Inc. v. 1970), "see [s] storm to weigh anchor and waters Ford Motor is a of Co., insufficient another 429 F. 2d ground to attribute such strategic or dilatory tactics to Plaintiffs The two actions were commenced by different plaintiffs who were represented by fferent counsel; and, this action was initiated without knowledge of litigation. (PIs. MTD Opp' n 8.) according to Plaintiffs, the inno This is therefore not a case where a Plaintiff sees a storm brewing and attempts to set sail for more Defendants' favorable inquiry, "categorically . Ms. Corgosinno, obtain Decl. the Ex. waters. Furthermore, counsel for in response Plaintif stated to that . we have made no promises or inducements to either withdrawal D (Dkt. No. directly of her 54).) or through collect her action. Additionally, counsel, It (Shaul son Defendants provide correspondence from Corgosinno's attorney explaining 12 to that "the Withdrawal of the Consent to Join merely procedural posture of the case as of memorialized the date of the that it was and is a single Plaintiff case, the filing: to which no other employee had opted-in, and in which the jointer date had already passed. (Shaulson II Decl. Ex. E had she Corgosinno's Withdrawal, conditional certification, and (Dkt. No. not 54).) filed Corgosinno's a Prior motion Withdrawal 18, 2011 followed the deadline for the joiner of part 12, 2011, action. (See Shaul son Ex. C at 2 (Dkt. No. On these facts, May s on May rule does not require dismissal of this action, is not warranted. The Court presumption whether 12); Shaulson the Court declines As the two suits are not duplicative, address on forum shopping. to make an inference stay for as of which no other Plaintiff had opted-in to her Decl. Ex. E (Dkt. No. 54).) or to of the first filed and a transfer accordingly the does first filed rebutted under either of its recognized exceptions: rule \\ (1) not is where the 'balance of convenience' favors the second-filed action,1I or \\ (2) where 'special the second suit. 1I Inc., Lab. Remington Prods. warrant giving priority to Employers Ins. Of Wausau v. foX Entm't Group, 522 F.3d 271, Technicians circumstances' 275 Local (2d Cir. 780, 804 2008) F. 2d Corp. v. Am. Aerovap, 13 (citing Motion Picture 16, 19 Inc., (2d Cir. 1986); 192 F.2d 872, 873 (2d Cir. 1951); First City Nat'l Bank, 878 F.2d 76, 1989» 79 (2d Cir. . II. Defendants' Motion to Compel Arbitration is Denied Defendants have additionally moved to compel the arbitration of the claims of two of the named plaintiffs in this and Bodden. suitt namely A. Legal Standard Congress enacted the Federal Arbitration Act t 9 U.S.C. § 1 et in ("FAAII) , ------"" hostility to response to tral agreements and the "j arbitration agreements were nothing courts t ] own Investment widespread Co. authority I 367 to F.3d settle 493 (6th Cir. quotation marks omitted); Conception t -- U.S. provides ous notion than a disputes. 1I 2004) 1740 1745 "that ll drain on Cooper v. (ci tat ions AT&T Mobili 131 S. Ct . judicial (2011). and The FAA A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction shall be valid t irrevocable t and enforceable t save upon such grounds as exist 14 MRM LLC v. part: t [the for at law or in equi contract. 9 U.S.C. § the In enacting the FAA, 2. revocation any Congress intended to place arbitration agreements on equal footing with other contracts and establish a strong AT&T, 131 S.Ct. at 1745; Inc. v. Section JLM Indus: 1 policy in favor of 4 Perry v. Thomas, Stolt-Nielsen SA, tration. 482 U.S. 387 483 3d 163, F. See (1987) 171 i (2d Cir. 2004). aggrieved by the to arbitrate of the leged failure, under a provides FAA written agreement for in such agreement." 9 U.S.C. court § 4. agreement, a for an order agreements to judicial courts order compelling Id. to "rigorously enforce arbitrate." Chrysler Plymouth, omitted) . requires the manner provided within the scope of a arbitration is mandatory, not discret FAA may If a litigant in a court to arbitrate a di ion party arbitration directing that such arbitration proceed valid " [a] neglect or refusal of another petition any United States district proceeding that Inc., 473 U.S. 614, 626 (1985) (citation In particular, the Supreme Court has roundly endorsed ion in the employment discrimination context: 15 We have been c in rejecting the supposition that the advantages of the arbitration process somehow disappear when transferred to employment context. Arbitration agreements allow parties to avoid the costs of lit ion[ a benefit that may be of particular importance in employment litigation[ which often involves smal sums of money than disputes concerning commercial contracts. The Court has been quite specific in holding that arbitration agreements can be enforced under the FAA without contravening the policies of congressional enactments giving employees specific protection against discrimination prohibited by federal lawi as we noted in Gilmer v. Interst Corp., 500 U.S. 20[ 26 (1991), \\ [b]y agreeing to arbitrate a statutory claim[ a party does not forgo the substantive rights afforded by the statute i it only submits to resol ution in an arbitral, rather than a judicial, forum." Ci 532 U.S. 105[ 123 (2001) Wi th this arbitration court must of in mind, aims based determine only: arbitratei (2) the \\ [t] 0 scope on (1) of decide a statutory whether that motion to rights, the part agreementi a district s (3) compel agreed to if federal statutory claims are asserted, whether Congress intended those claims to be nonarbi trable. Mitsubishi, In addition[ such as If generally applicable fraud, duress, or 473 U.S. state law contract unconscionability arbitration agreements or clauses thereto. 16 at may 9 U.S.C. 626 28. defenses invalidate § 2i AT&T, 131 S.Ct. Casarotto, at 1746i see also 9 U.S.C. 517 U.S. 681, 482 U.S. at 492 n.9. will only be 687 (1996) Likewise, compelled "so § Doctor's Assocs. Ii (collecting cases) i v. ---,,-' arbitration of statutory rights long as the prospective litigant effectively may vindicate his or her statutory cause of action in the arbitral forum." 531 U.S. n. 19 i 79, In 90 re (2000) Green Tree Financial see also Mitsubishi, i U.S. American at 637 ( "American 554 F.3d 300, I"), --=---- 473 315 20 nom. American (2d Cir. 2009), vacated sub ian Colors Rest., 130 U.S. 2401 (2010) , ---- f'd, Express 11"); 634 F.3d 187, 196 (2d Cir. 2011) ("American Ragone v.Atlantic Video at the Manhattan Center, 595 F.3d 115, 125 (2d Cir. 2010). B. Agreement to Arbitrate In Bodden both encompass this action, entered their into claims in Defendants binding this assert arbitration suit. that Raniere agreements Defendants Appendix A to CitiMortage's January 2011 U.S. and that point Employee Handbook (the "2011 Arbitration Policy"), which includes the following: The Policy makes arbitration the required and exclusive forum for the resolution of all disputes (other than disputes which by statute are not arbitrable) arising out of or in any way 17 to related to employment based on legally protected rights (i.e., statutory, regulatory, contractual, or common-law rights) that may se between an employee or former employee and Citi including, without limitation, aims, demands, or act under the Fair Labor Standards Act of 1938. and any other federal, state, or local statute, regulation, or common law doctrine regarding . compensation . *** Claims covered under this Policy must be brought on an individual basis. Neither Citi nor any employee may submit a c collective, or "Y'Ol'"\'Y'osentative action for resolution under this To the maximum extent permitted by law, and except where expressly prohibited by law, ion on an individual basis pursuant to this Policy is the exc ive remedy for any employment-related claims which might otherwise be brought on a class, collective or sentative action basis. Accordingly, employees may not participate as a class or lective action representative or as a member any class, collective, or representat action, and will not be entitled to any recovery a class, collective, or representati ve action in any forum. Any disputes concerning the validity of this class, collective, and representative action waiver will be decided by a court of competent j sdiction, not by the arbitrator. (Byers Decl. ~ 3, Ex. lA at 48-49 (Dkt. No. 28).) Plaintiffs do not contest that the scope of the 2011 Arbitration Policy properly encompasses the instant dispute or 18 that Congress did not intend the underlying FLSA claims trable. 6 implicated here to be non- Accordingly, the Court proceeds to address whether the Mitsubishi, parties agreed to arbitrate. 473 U.S. at 626. A party seeking to enforce a collective action waiver and compel arbitration must establish the existence of an agreement arbitrate under ordinary principles of contract law. Ross v. American ... Co., 478 ~~~--~~~~ ~~.~~----~~~--~~ (citing Thomson-CSF, 779 (2d Cir. 1995)) certain matter is contract formation. 514 U.S. 48 v. American Arb. Whether the governed York law by that 2000) arbitration state law ies' 'clear, trate. ' II explicit "It is will (2d Ass'n, e. r. ., 2007) 64 F.3d 773, agreed to arbitrate a Mehler v. (2d. 99 principles rst Options of Chicago, 938 F.3d 44, S.A. F.3d 96, See to not and v. Terminix Int' I 'well settl be Kaplan, Co., 205 under New compelled unequivocal 's East Inc. regarding absent the agreement to LLC, 318 Fed. App'x 6, 7 ~~~~~~~--~~~~~~~~~~ 8 (2d Cir. 2009) 144 (N.Y. 2008)). (quoting Fiveco Inc. v. Haber, 11 N.Y.3d 140, Where there was no "meeting of the minds," an tration agreement cannot be enforced. 6 As discussed below, however, Plaintiffs do contest whether the right to proceed collect under the FLSA may be waived. 19 Global Solutions-U.S. Inc., 349 F. App'x 551, 553 (2d Cir. 2009) . i. Bodden Defendants argue that Bodden is bound by the language of the 2011 Arbitration Policy because she acknowledged receipt of the that 2011 it Employee required her binding arbitration. This Policy, find submit and that t, she 14, 2011, including employment related disputes ~ 4, Bodden's 318 notice Fed. of App'x 6 dispute Ex. 1A (Dkt. continued consented to No. 28).) employment the receive notice and did are 2011 Arbitration 11, acknowledgement Arakawa not 1999) acknowledgment agreement) i of sign 09 340 (VLB), (employee bound who receipt of signed DeGaetano v. mail to F. executed her employee Smith Barney 20 Inc., receipt) i (D. a written program terms); Supp. agreement by of 2010 WL 147196 arbitration 56 (arbitration form program was acknowledgement Network v. (S.D.N.Y. 2010) See where employee submitted she did not Inc., Jan. to (employee who continued employment resolution consented to arbitration, Conn. January including its class and collective action waiver. ---=<-- after to to on (Byers Decl. acknowledgement sufficient Handbook in 2d 349, 352 handbook and creat No. 95 binding Civ. 1613, 1996 WL 44226 (S.D.N.Y. 1996) (holding that signed arbitration agreement in employment handbook was an enforceable contract in accordance with New _E_n-=-t--'-- . . ."':...=-=-:.::s-.ee-'-'s--'--___ I-.en..c..c_., (E.D.N.Y. notice Apr. of 08 28, Aug. 5, law); Civ. 2009) arbitration Gonzalez v. Toscorp, (S.D.N.Y. York so (JFB) 3231 (ETB) , (employee program Inc., No. 1999) see Brown ----- bound and v. 2009 WL where he continued 97 civ-8158 (LAP), Coca-Cola 1146441 received employment) i 1999 WL 595632 (employee bound where he did not sign acknowledgement but did receive handbook and arbitration policy and continued employment) i principle absence that of arbitration written PIs. Opp'n 3 6 agreements acceptance based & may on n.2 be (acknowledging enforced continued in the employment after receipt of the arbitration policy) . ii. Raniere Defendants contend that Raniere is 2011 Employee Handbook Arbitration so bound by the Policy because acknowledged receipt of the 2009 Employee Handbook Exs. 4, 5 (Dkt. No. 28)), which included (Byers Decl. the llowing provision: Citi reserves the right to revise, amend, modify, or discontinue the Policy at any time in its discretion with 30 days' written notice. Such amendments may be made by publishing them in the 21 she Handbook or by separate release to employees and shall be effective 30 calendar days after such amendments are provided to employees and will apply prospectively only. Your continuation of employment after receiving such amendments shall be deemed acceptance of the amended terms. ~~ (Byers Decl. No. 28) . ) 5-7, The Ex. parties acknowledged receipt 4 (Dkt. No. 28).) 5A at 48 are (emphasis in original) in agreement the 2009 Handbook. That that (Dkt. Raniere see Byers Decl. Exs. ier Policy expressly excluded class or collective actions from arbitration, providing: Except as otherwise requi by applicable law, this [Arbitration] Policy applies only to claims brought on an individual basis. Consequently, neither Citi nor any employee may submit a class action, collective action, or other representative action for resolution under this Policy. (Byers Decl. Ex. 5A at 44 (Dkt. No. 28). ) Arbitration Policy was modified to include the collective action waiver date PIa iffs have January, 2011, Citi's class and following leged that Defendants the reclassifi them as non-exempt and began paying Loan Officers overtime pay in 2010. Plaintiffs argue that Defendants have not established that an Raniere. enforceable collective Specifically, action Plaintiffs 22 waiver assert that exists with Defendants' reliance on the 2009 Handbook provision fails because Defendants have not established that Raniere received the 2011 amendments. As aintiffs acknowledge, arbitration agreements "may be enforced in the absence of written acceptance by an employee provided that acceptance evidenced is by something like continued employment after receipt of the arbitration policy." (Opp'n at 3-6 n.2 & (emphasis 2009 WL 1146441; Manigault, 595632. subj ect "It Dist. 1999 WL is well settled that a non signatory party may be that Chanchani v. see also Brown, i 318 Fed. App'x 6; Gonzalez, to an arbitration agreement indicates U.S. in original)) he has assumed Smith Barney, LEXIS 2036, at the Inc" *9 No. (Feb. if his subsequent obligation 99 Civ. 28, to 9219 2001) conduct arbitrate." (RCC) , 2001 (citing Thomson CSF, 64 F.3d at 777) . In both Brown and employee may consent to a Manigault, courts found modification of employment that an terms by continuing to work "after receiving notice" of the modification. See Brown, 8. 2009 WL 1146441, at *6; Manigault, Similarly, absent a in signed receipt of the Gonzalez, acceptance the court because [arbitration policy] employment." 1999 WL 595632, at *2. 23 the 318 Fed. App'x at compelled arbitration employee "concede[d] and chose to continue his Plaintiffs argue that, here, Defendants "have produced no proof that Raniere ever received this document or was way informed of its contents, any let alone that she agreed to its new terms in direct contravention of the 2009 Handbook.1I Compel Mem. 4). (PIs. The Court of Appeals for the Second Circuit has noted that "(u]nder New York contract law, the fundamental basis of a valid enforceable contract is a meeting parties. terms, If there is no meeting of the minds on all essential there contract is no requires condi t ions thereof. F.2d 571, marks the minds of the 576 contract. mutual In assent Schurr v. II (2d Cir. omitted)). This 1983) Opals, is because to an essential enforceable terms Austin Galleries of Ill., and 719 (internal citations and quotation the Court found that while each party had signed an agreement to arbitrate, because one included a provision to arbitrate in New York and the other California, as this was an essential Opals on Ice Lingerie v. (2d Cir. 2003) i see also term, no valid Bodylines Inc., Dreyfuss, 349 agreement existed. 320 F.3d 362, Fed. App'x at 371-72 554 55 (holding that missing pages to an arbitration agreement rendered it unenforceable because the terms of the contract could not be proven) . 24 By affidavit, Raniere received Arbi tration and Pol icy. Citi submits that on December 14,2011 opened (Gross an email ~ Decl. 4, with Ex. a 1 link (Dkt. to No. the 60).) That email stated that the 2011 Handbook "will be your primary source for employment and HR policy information" "Appendix to the Handbook contains an and that Employment the Arbitration Policy that requires you to submit employment related disputes to binding arbitration." (Gross Decl. Ex. 1.) The email additionally provided that By receipt of this email, you acknowledge that you've received the Web link to the Handbook and that it's your obligation to read and become familiar with its terms. You further acknowledge your obligation to the Employment Arbitration Policy carefully and that nothing in the Handbook is intended to constitute a waiver, nor be construed to constitute a waiver, Citi's right to compel arbitration of employment related sputes. rd. From the record, it appears that had followed the link to download the 2011 Handbook t had to acknowledge its receipt as Bodden did t Raniere indeed she would though Defendants have provided no such acknowledgement. Opening an email that contains a and arbitration policy t if that link is not attenuated and potent ly significantly so, 25 link to a Handbook lowed t is more than providing an acknowledgment of receipt of the 2011 Handbook and Arbitration Policy case themse because s (as while Handbook and Bodden did). Raniere icy, not 2010, include any acknowledged is particularly the receipt that version did not collective action waiver, in December This of include the a 2009 class or and the email which Raniere received while discussing binding arbitration, reference to a waiver of class did or collective actions. However, with opposition their arbitration, although iffs submit to instant five declarations mot she did not receive the 2011 Arbitration with its class and collective action waiver. with the link to On facts, the record is sufficient to evidence Raniere's 318 Fed. App'x at 8 constituted agreement not receive acknowledgement (holding that of the email the Handbook and revised Arbitration Policy. assent to the 2011 Policy and attendant waiver. did Policy It is undisputed continued her employment after rece Manigault, compel they have not submitted a declaration from Raniere stating that to the of a (employee'S continued employment to arbitrate employer despite party if her subsequent 26 claim that never Thomson-CSF, ) i her mailing non signatory ration agreement See generally, may 64 be conduct signed F.3d subject at to indicates an 777 an that she has assumed the obligation to arbitrate}; Brown v. Paul Travelers Cos., 559 F. Supp. 2d 288, 291 The St. {W.D.N.Y. 2008} ("while there is no signed acknowledgment of plaintiff's receipt of the handbook, with the plaintiff was arbitration employment and that understand all of arbitration, employee's received and it was her a she continued that she condition policies had Plaintiffs holding to the contrary on that responsibility company policy) Plaintiffs was the statement the policy advi her no compliance of continued to read including regarding employment" recollection have pointed and despite of to having no case lar facts. additionally argue that Defendants' "attempt to impose on Raniere a unilaterally altered arbitration policy, without any evidence of her actual assent be rejected as unconscionable." should (Opp'n at 7.) "Under New York law, a contract is unconscionable when it is 'so sly unreasonable or unconscionable in the light of the mores and business practices the time and place as to be unenforceable [sic] according to its literal terms.' Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1[, 10] (1988). Generally, there must be a showing that such a contract is both procedurally and substantially unconscionable. See id. "The procedural element of unconscionability concerns the contract formation process and the alleged of meaningful choice i the substantive element looks to the content of the contract [, per se]." State v. Wolowitz, 96 A.D.2d 47 (1983); 27 see also Desiderio v. National Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 207 (2d Cir. 1999) ("A contract or clause is unconscionable when there is an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party." (quotation marks omitted)). Ragone, 595 F.3d at 121-22 IPA, Inc., 620 F. Supp. has failed tactics or to show that (quoting 2d 566, that Raniere v. HIP Network Servs. 571 (S.D.N.Y. Defendants engaged lacked meaningful constitute procedural unconscionability. 115. Nor have Plaintiffs argued that 2009)). in high-pressure choice such See Ragone, the Raniere as 595 collective to F. 3d action waiver is substantively unconscionable. C. Statutory Rights Analysis Plaintiffs make two arguments to the effect that the collective waiver is unenforceable because it would aintiffs from vindicating their substantive statutory prevent rights. action The first, and broader, of these arguments is that if the waiver is given effect, the FLSA will not remedial and deterrent functions. contention is that to give serve both its Plaintiffs' second, narrower, effect to the collective action waiver and arbitration agreement here would have the practical effect of precluding aintif from pursuing the enforcement of their statutory rights due to the costs involved. 28 It their is well substantive recognized rights under See Brooklyn Sav. Bank v. one can doubt but agreement would Bormann v. AT that ("[P]rivate waiver employees FLSA the 324 U.S. purposes Inc., 697, of 697 108 (1946)." It to arbitrate [FLSA] is a II in Circuit 26) i of if arbitration. (2d Cir. by also 1989) has been precluded 328 U.S. statutory forum. ' compelled see and likewise well resolution Arbitration ("No (citations omitted)) their at (1945) Sav. Bank v. O'Neil, established claim, a that party does substantive rights afforded by the statute; U.S. agreement. Act."); 875 F.2d 399 claims under the (1945), 707 release statutory wages the by such Supreme Court decisions as 324 U.S. cannot by private allow waiver of T Commc'ns, & the O'Neil, to nullify that an Ci arbitral, 532 U. S. see - - -also -a that claim 123 Desiderio, of claim can be See Mitsubishi, forgo a F.3d rights fectively 473 U.S. than (quoting 191 statutory not agreeing it only submits rather at ,,\ [b] y to judici Gilmer, at will vindicated at 637 n.19 the 500 205-06. only be through (noting that if arbitration clause and other contractual provisions "operated in tandem as a statutory prospective waiver of a remedies," "we would 29 have party's right to pursue little hesitation in condemning the agreement as against public policy") i Green Tree, 531 U.S. at 90 (noting that "even claims arising under a statute designed to further important social policies may be arbitrated because so long as the prospective litigant effectively may vindicate his or her statutory cause of action in the arbitral forum the statute serves its functions." (citations and internal quotation marks and brackets omitted)). Federal federal courts substantive to law declare of arbitrability otherwise operative requires arbitration clauses unenforceable when enforcement would prevent plaintiffs from vindicating their statutory rights. 634 F. 3d at 199 i 25, 47-48 478 n.14 see also Kristian v. (lst Cir. (5th 2006) Cir. i Hadnot v. 2003) i Technologies, Inc., 134 Sutherland v. Ernst & Young (S.D.N.Y. 2011) Supp. 2d 394 i F.3d (S.D.N.Y. 2011) i Bay, 1054, Ltd., 768 Goldman, F. DeGaetano v. 344 F.3d 474, computer (lIth Cir. Supp. 2d Sachs II, 446 F.3d Avnet v. 1062 s ., Comcast Paladino LLP, Chen-Oster v. American & Co., Smith 1998) 547, i 549 785 F. Inc. , 983 F.Supp. 459, 469 (S.D.N.Y. 1997). The Express I, Second Circuit 554 F. 3d 300. addressed this issue in American The Court concluded that the class action waiver in that case was unenforceable because plaintiffs 30 had demonstrated vindicate that their they statutory otherwise rights collective capacity," id. at 314 would "in either not an be able to individual or (emphasis in original), due to the great expense of pursuing that antitrust litigation and the small individual recovery each plaintiff could expect. As such, the waiver would have the practical effect of ensuring no claims would be brought at immuni ty from . all, granting the defendant liability." Id. at 320. "de facto The Supreme Court vacated American Express I and remanded for reconsideration in ., 130 S.Ct. 1758 Colors Rest., 130 (2010). S.Ct. American Express 2401. On remand, Co. the -- U.S . v. light of Stolt-Nielsen S.A. v. AnimalFeeds Int'l Italian Circuit again found the arbitration provision unenforceable because "the class action waiver in this case precludes plaintiffs from enforcing their statutory rights" due to the Ii tigating on an individual basis. prohibi tive cost II, American Express of 634 F.3d at 197 99. In Ragone, confirmed the 595 F.3d 115, importance indicating its willingness, an arbitration limitations agreement and a of the the Court of Appeals again statutory if in dicta, containing fee-shifting "significantly diminish a litigant's 31 a rights analysis, to hold unenforceable shortened provision rights under statute that of would Title VII." 595 F. 3d at 125-26. 7 demonstrates only to "that The Court of Appeals discussion in Ragone the holdings of American Express apply not 'negative value' class action claims, that is, claims that are so small in value that it is not economically viable to pursue them as individual claims." Chen Oster, 785 F. Supp. 2d at 408. Defendants are incorrect that the Supreme Court's decision in AT&T, 131 S.Ct. 1740, overrules American Express and Ragone. AT&T addressed only whether a state law rule holding class action waivers unconscionable was preempted by the 131 S.Ct. 1740. FAA. The holdings of both the American Express cases and Ragone were based, in contrast and as this decision must be, on federal arbitral law, and AT&T in no way alters the relevance of those binding circuit holdings. Sachs & Co., that AT&T 2011 WL 2671813 does not abrogate See Chen-Oster v. (S.D.N.Y. July 7,2011) American Express or Goldman, (holding Ragone and noting that "it remains the law of the Second Circuit that an arbitration provision which precludes plaintiffs from enforcing their statutory Moreover, while "agreements that rights the is dissent forbid the rd. unenforceable." in AT&T noted with consolidation of concern claims The court did not address this issue as the defendants enforcement of those provisions. Ragone, 595 F.3d at 125. 7 32 at * 4) ¢ that can lead had waived small-dollar claimants to abandon their claims rather than to litigate," 131 S.Ct. state, not federal, at 1760, AT&T involved the vindication of rights. Thus, even if AT&T is read broadly to acquiesce to the enforcement of an arbitral agreement that as a practical matter would prevent the vindication of state rights in the name arbitration, of furthering the strong federal policy favoring that would not alter the validity of the federal statutory rights analysis articulated in Mitsubishi, Green Tree, American Express 8 and Ragone. The Court accordingly analyses the present issues under the reasoning articulated in those cases. to Proceed Collecti vely Under the FLSA Cannot be i. The Right Waived The Second Circuit collective action provisions structure and function, and, has of not the as determined FLSA are such, whether integral whether an the to its agreement waiving that right can be enforced. The First Circuit has expressly reserved decision on this question. 49, 62 (1st Cir. Skirchak v. 2007) ("We Dynamics Research Corp., do not need to decide actions under the FLSA may ever be waived by agreement. 508 if F. 3d class We On August 1, 2011, the Second Circuit issued an order stating that the !,-merican Express panel was sua sponte considering rehearing in light of AT&T. See In re American Express Merchants' Litig., No. 06 1871-CV (docket entry of Aug. 1, 2011). 33 also do not reach the question of whether such waivers of FLSA class actions are per se against public policy under either the FLSA or the Massachusetts Fair Wage Law"). of other Circuits have accepted arbitration containing proceed collectively decisions Second agreements were either Circuit Horenstein v. under or reach Mkt., i Fed. 494 waivers a of are the n.4 in principle, the rejected question 9 F. right enforceable, premise Inc., (3d 487, least by the See 619 Inc., to those here. App'x 618, Countrywide Credit Indus., 294, 297-98 (5th Cir. 2004) App'x at FLSA upon not Mortgage. Cir. 2001)i Carter v. the based did that, And while a number (9th 362 F.3d Vilches v. Travelers Co., Inc., 413 r. 2011) i Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1378 (11th Cir. 2005) i Adkins v. Labor Ready, Inc./ 303 F.3d 496/ 503 (4th Cir. 2002). Specifically, the court in Caley did not address whether the right to proceed collectively under the FLSA may be waived as a matter of federal law. Instead, it addressed whether such waivers were unconscionable under Georgia state law principles. See Caley, 428 F.3d at 1377-79. 9 9 The defendants in that case argued that collective action waivers are permissible under See Br. for Defs ./Appelees at 57 59, CaleYt 428 F.3d 1359. However, as scussed, that argument has been rejected by the Second Circuit. 34 The Second Circuit has on in Horenstein, Express, the statutorily which Adkins, Second incorporates Carter, Circuit granted noted collective by rejected the reasoning relied and that action reference Vilches. the the rights In American issue of under collective whether the action ADEA, rights granted in the FLSA, could be waived was not decided by Gilmer, 500 U. S. 20, because "because a collective and perhaps a class fact, act ion remedy was, II, --""---- 314 (same). available in that case. 634 F.3d at 195-96; American Express I, Countrywide, Adkins, Horenstein, II 554 F.3d at and Vilches, latter three relying on Johnson v. West Suburban Bank, 366, 377 (3d Cir. 2000), collective enforcement 494 n.4 303 F.3d at F.3d at 377)); Adkins, 303 F.3d at 503 at 377) at 32). i Countrywide, the 225 F.3d assumed that Gilmer resolved whether rights were waivable. (citing Adkins, American 362 F.3d at 298 503 See Vilches, (citing Johnson, at 225 (citing Johnson, 225 F.3d (citing Gilmer, 500 U.S. Under the Second Circuit's precedents, Gilmer does not. See American Express II, 634 F.3d at 195-96. 10 issue presented by Plaintiffs here, Accordingly, the namely whether the right to proceed collectively under the FLSA is unwaivable--beyond such a clause being unenforceable were Plaintiffs to demonstrate that In so finding, the Second Circuit expressly rejected the interpretations of articulated by the Fifth Circuit in Countrywide and the Third Circuit in Johnson. American Express II, 634 F.3d at 195-96. 10 35 to do so would have the practical effect of denying them their substantive rights--is an open question This nuanced, issue is this Circuit. fundamentally than that presented in Gilmer, ADEA claims contest are that arbitrable individually at all. filed and distinct, more which addressed whether Here, FLSA Plaintiffs claims are do not generally arbitrable or that were the agreement to permit proceeding as a collective in arbitration, as the parties could in Gilmer, 634 F. 3d at 195 - 96, would be enforceable. Accordingly, see that such a provision this case does not oppose the strong federal policy favoring arbitration with the rights granted in the FLSA, but instead only questions whether the right to proceed collectively may be waived. There are good reasons to hold that a waiver of the right to proceed collectively under the FLSA is per se unenforceable -and different in kind from waivers of the right to proceed as a class under Rule 23. the FLSA are a unique animal. Collective actions under Unlike employment discrimination class suits under Title VII or the Americans with Disabilities Act that are governed by Rule 23, Congress created a unique form of collective actions for minimum-wage and overtime pay claims brought under the FLSA. 36 The Fair Labor Standards Act of 1938, and its original collective action provision, was a product of the forces that gave rise to what has been termed the constitutional revolution of 1937, marking a high point in the clash of the federal courts with President Roosevelt and New Deal legislators. 11 The original FLSA collective action provision, passed in the wake of the "switch in time that saved nine, 12 1/ provided that [a]ny employer who violates the provisions of section 6 or section 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by anyone or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of 1 employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable II See, e.g., Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) i Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555 (1935); A. L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) i United States v. Butler, 297 U.S. 1 (1936); Carter v. Carter Coal Co., 298 U.S. 238 (1936); r10rehead v. People ex reI. Tipaldo, 298 U.S. 587 (1936). Some scholarly work has described the close ties between Roosevelt's court packing plan and federal labor standards regulation, which was originally intended to be withheld until Congress acted on the court packing proposal. John S. Forsythe, Legislative History of the Fair Labor Standards Act, 6 Contemp. Probs. 464, 464 (1938). 12 This phrase is often used to refer to the shift by Justice Owen J. Roberts in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), to uphold a mlnlmum wage law in the wake of President Roosevelt's announcement of the court packing bill. 37 attorney's fee to be paid by the defendant costs the action. Fair Labor Standards Act, 75 Congo 1060, the 1069 (1938). As Ch. Supreme 676, 16(b), § Court has and 52 Stat. noted, this provision appeared for the first time in the bill reported by a Conference Committee of both Houses. See Brooklyn Sav. 324 U.S. No. Sess., at 705 n.15 at 33). thirteen months iterations, Rep. 2738, 75th Congo 3d The bill that later became the FLSA took over to become creating a Within this, however, by (citing H. Bank, Representative law and went veritable raft of through a variety of legislative history. "[t]he only reference to Section 16(b) was Keller. II rd. at 705 n.16. Representative Keller stated in relevant part: Among the provisions for enforcement of the act an old principle has been adopted and will be applied to new uses. If there shall occur violations of either the wages or hours, the employees can themselves, or by designated agent or representatives, maintain an action in any court to recover the wages due them and in such a case the court shall allow liquidated damages in addition to the wages due equal to such deficient payment and shall also allow a reasonable attorney's fees and assess the court costs against the violator of the law so that employees will not suffer the burden an expensive lawsuit. The provision has the further virtue of minimizing the cost of enforcement by the Government. It is both a common-sense and economical method of regulation. The bill has other penalties for violations and other judicial remedies, but the provision which r have mentioned puts directly into the hands of the 38 employees who are affected by violation the means and ability to assert and enforce their own rights, thus avoiding the assumption by Government of the sole responsibility to enforce the act. Id. (citing 83 Congo Rec. 9264). This collective Portal to Portal Act of action 1947, provision was the history of amended which by has the been described by the courts in the following manner: In 1947, in response to a \\national emergency" created by a flood of suits under the FLSA aimed at collecting portal-to-portal pay legedly due employees, Congress enacted the Portal to Portal amendments to the FLSA. 61 Stat. 87 (1947). The original, stated purpose of the bill containing these amendments was: \\To define and limit the jurisdiction of the courts, to regulate actions arising under certain laws of the United States, and for other purposes. 1t 93 Congo Rec. 156 (H.R. 2157). To this end, the amendments, among other things, barred unions from bringing representative actions under the FLSA. Arrington V. (D.D.C. Nat. 1982) Broadcasting Co., (citations Commercial Workers Inc., F.3d 207 court's of the allow Union, 1193, 531 see also of N.M. omitted) i Local 1200-01 1564 (11th Cir. F.Supp. United v. 2000) 498, Food 500 & Albertson's, (noting the "exhaustive survey of the legislative history 1947 amendments"). "plaintiffs Inc., the As amended, advantage 39 FLSA collective actions lower individual costs to vindicate rights by system benefits (1989) of resources. resolution law and fact unlawful activity. 170 pooling by efficient common issues of 165, the in The judicial one proceeding of arising from the same alleged" Hoffman-La Roche Inc. v. Sperling, 493 U.S. (describing the collective action provisions under the ADEA, which are by reference those of the FLSA) . specifically, More provision that resulted the revised from these collective amendments action limited representative suits to those workers who submit written opt-in notices. See 29 U.S.C. plaintiff to § 216(b) ("No employee shall be a party 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 consequent such action is brought"). FLSA actions are, not true representative actions as under Rule 23, but instead those actions brought about by individual employees who affirmatively join a single suit. provisions several were crafted Congresses bringing of to the not balance often small order to ensure by one the These collective action but over need to claims by way of statute's function, the course incentivize of the collectivization in while barring actions "brought on behalf of employees who had no real involvement in, or real knowledge of, 501. the lawsuit." Arrington, 531 F.Supp. at The Act's, and more specifically this provision's, lengthy 40 legislative history evidences Congress' precise determination of how this balance should be struck order to ensure the statute's remedial and deterrent functions. In addition, as the Supreme Court has described, [t]he legislative history of the Fair Labor Standards Act shows an intent on the part of Congress to protect certain groups of the population from substandard wages and excessive hours which endangered the national health and well-being and the free flow of goods in interstate commerce. The statute was a recogni tion of the fact that due to the unequal bargaining power as between employer and employee, certain segments of the population required federal compulsory legis ion to prevent private contracts on their part which endangered national health and eff iency as a resul t of the free movement goods interstate commerce. Brooklyn Sav. Bank, sue under the FLSA 324 U.S. is enforcement provision." aspect of this remedy at 706-07. compensatory, rd. is at the Although the right to \\ it 709. ability is Not of nevertheless the least employees resources in order to pursue a collective action, wi th the specific balance struck by Congress. FLSA collective Congressional mechanism action determination regarding was the an integral to pool in accordance The particular additionally a allocation of enforcement costs, as the ability of employees to bring actions collectively reduces the burden borne by the 41 public fisc, as Representative Keller noted. See 83 Congo Rec. 9264. Moreover, prohibition of the waiver of the right to proceed collectively accords with the Congressional policy of uniformity with regard to application of FLSA standards, see H. Rep. No. 2182, 75th Cong., 3d Sess. at 6 7, because an employer is not permitted to gain a competit willing to advantage assent to, able to ascertain, competitors. the Act decline Labor, human that it be protections." 471 U. S . 290 favoring applied Alamo invalidate (1985 ) col ive action more more even "the purposes to those who would Secretary V. of It is not enough to respond that upheld in the name of the broad federal arbitration, agreement the are department resources Foundation simply included in an arbitration agreement. arbitration employees collective action waivers than those of his such a waiver should policy or his his As the Supreme Court has not require its because should particular provision not because the waiver was An otherwise enforceable become Congressional and the the vehic purposes policles on to of the which that provision is based. 13 \3 Indeed, were employers beyond Citi to embrace these waivers, the deluge of individual wage and hour claims that would be arbitrated, notwithstanding those that would simply be forgone absent collectivization, would quite obviously run counter to the values of simplicity, expedience, and cost saving that underlie the federal policy preference for arbitration. ~, Mitsubishi, 473 U.S. at 3354. 42 In sum, a waiver of the right to proceed collectively under the FLSA is unenforceable as a matter of law in accordance with the Gilmer arbitrate a Court's statutory recognition claim, a that party does substantive rights afforded by the statute. at 26. See also Chen Oster v. Supp. 2d 394 right to (S.D.N.Y. 2011) proceed as a "[b]y Goldman, agreeing to forgo the not 5 aau. S . Gil me r , II Sachs Co., & 785 F. (holding arbitral provision waiving class unenforceable as to Title VII pattern and practice claims) . ~~. If Compelled to Arbitrate Their Claims Individually, Raniere and Bodden Would Not be Precluded from Enforcing Their Statutory Rights Due to Cost A party that seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expens bears incurring such costs. ss II, the burden of showing Green Tree, 634 F. 3d at 191 531 the U. S. (quoting Amex I, likelihood at 92 i of American 554 F. 3d at 315). Here, Plaintiffs have established that were they to be forced to arbitrate their attorneys' and expert fees would total approximately $640, 000. Specifically, likely to be claims individually, Plaintiffs mainta that their the incurred through an individual likely exceed $526, 000 with costs 43 in excess costs including attorneys' fees arbitration would of $19,000. (See Gilly Decl. " additionally economi c Plaintiffs state that they 12-25 (Dkt. No. 48).) require damage s an expert institutional See id. at expert " as 20-21 well (Dkt. No. costs for which they estimate in excess of $95 / 300. 20-211 the (Dkt. No. 48).) 25 declaration of and Plaintiffs l Mark Killingsworth l economic damages expert 1 Decl. at an Sutherland accountants Sutherland l were who l was nonexempt 1 highll (Shaulson and Decl. Defendants have not l other Id. at " , (Dkt. 13 engaged to No. institutional l determine estimated 49).) fees of whether $33 / 500. 768 F. Supp. 2d at 551 51. "unreasonably fees 1 who estimates his fees Citi submits that these attorneys 1 expert. 48)) economics professor Plaintiffs additionally note that the plaintiffs in an In support of this they have provided (Killingsworth expert as than question ,~ 16-20 the need (Dkt. No. estimates are for an 61).) industry However 1 submitted opposing estimates of attorneys 1 to note the estimates of the plaintiff/s counsel in another overtime exemption case recently litigated by the defense here. (Id. aintiffs ~ 20.) estimate the amount of overtime compensation potentially owed to Bodden at approximately $28 / 950 using the fluctuating work week method and assuming the relevant 44 period is set by the FLSA's two-year limitations period for nonwillful violations--plus an equal amount in liquidated damages, or roughly Plaintiffs potential (Gilly $57,900. have not damages Decl. submitted evidence or calculated her time and a half basis. approximately $84 1875 (Dkt. 8 No. regarding or Bodden s 48) . ) 14 Raniere's damages I on a Citi estimates Boddenls overtime loss at applying the fluctuating workweek method and assuming the six year statute of limitations period ofl not the FLSA but the NYLL, or $350 1 000 applying the time-and-a-half I method over that time--each potentially increased by liquidated damages. 15 61); ~~ See Shaulson Decl. Bridgeford Decl. ~ 4 11-121 (Dkt. No. Exs. 59).) I and J (Dkt. No. Defendants assert that for Raniere l those numbers would be approximately $149 750 1 and $ 61 7 500 I I respectively liquidated damages. (Dkt. No. 61) i each I potentially See Shaul son Decl. Bridgeford Decl. Neither party has ~ ~~ 13 -14 increased Exs. I by K and L 3 (Dkt. No. 59).) pointed to a case addressing the proper scope of the limitations period to apply in a case such as this, where the question presented is the practical ability of a plaintiff to bring a federal claim (with a shorter statute Plaintiffs' briefing provides after tax estimates, though they cite no authority and make no argument in support of this approach. Pre-tax figures are provided here. lS The parties' estimates are roughly equal under a two year statute of limitations based on a fluctuating work week method. 14 45 of limitations), where she has also alleged claim (with a longer limitations period). in American Express emphasized that a parallel state The Court of Appeals the nature of its inquiry under the statutory rights analysis was the "practical effect" the enforcement of such a waiver. this in mind, might act, With this Court is of the view that where state claims in a practical sense, federal claims, arbitral 634 F. 3d at 196. to bootstrap otherwise smaller such that the latter could be vindicated in the forum, the longer state limitations period should be considered in assessing whether a plaintiff has met her burden under American Use of the six year New York statute of limitations period is therefore appropriate. Accordingly, estimated at Bodden's approximately potential $84,875 recovery applying the can be fluctuating workweek method or $350,000 applying the time and-a-half method, and Raniere's approximately potential $149,750 or recovery can $617,500, each be estimated potentially at doubled during the federal statutory period and increased by either 25% or 100% for the state limitations period. 16 16 Effective April 9, 2011, New York amended its Labor Law, which previously provided for 25% liquidated damages, to provide 100% in liquidated damages. Compare N.Y. Lab. Law § 663 (McKinney 2010) with N.Y. Lab. Law § 663 (McKinney 2011). Courts are split as to whether this liquidated damages clause should be given retroactive effect. Compare Wicaksono v. XYZ 48 , No. 10 civ. 3635, 2011 WL 2022644 (S.D.N.Y. May 2, 2011) (refusing to -"---=-*-NYLL's liquidated damages provisions retroactive effect) Ji v. 46 Plaintiffs argue that the reasoning in Sutherland, F. Supp. 2d 547, is apposite here. In that case, involving alleged nonpayment of overtime wages, that the inability plaintiff to had prosecute "substant her claims ly on the Court found class equal for which amount she $200,000, agreement Id. and expenses. of expenses well as the FLSA's the at II rd. 1.11 (approximately to shoulder a held that the at Id. Because to both waiver of was arbitration Belle World Beauty, Inc., No. 603228/2008 (giving the provision retroactive effect). attorney's are /I of fees compensable ll as in contrast to the provision. (citing 29 U.S.C. § 216 (b» 47 upwards reimbursement "[w] hether arbitration shifting the $3,800), This included leaving to the "amount of such reimbursement, fee of class "obstacles 553. during burden Additionally, 551-54. arbitrators incurred mandatory original) Wood damages Sutherland placed discretion and need be to recover roughly $1,900 plus liquidated would Judge unenforceable. fees of an would (citation and internal quotation marks omitted). the plaintiff could only expect an that basis tantamount to an inability to assert her claims at at 553 likewise demonstrated a 768 rd. (emphasis in . (N.Y. Sup. Ct. Aug. 22, 2011) Under the FLSA, a plaintiff who prevails on her claims is enti ed to "a reasonable attorney's fee defendant and the costs Unlike in Sutherland, "[t]he arbitrator(s} of the action." to be paid by the 29 U.S.C. §216(b). the 2011 Arbitration Policy provides that shall be governed by applicable federal, state, and/or local law" and expressly provides arbitrators with the authority to award attorneys' (See Byers Decl., by applicable law." No. 28}.) While s "where expressly provided the Policy enacts , a 3, default shall pay its own legal fees and expenses, 1A at 51-52 under the FLSA, (Dkt. No. 28).) 29 U. S. C. precluded. that (Dkt. each side it does so "[u]nless , 3, As fee shifting is mandatory § 216 (b), Carter, 1A at 51 See Byers Decl., otherwise precluded by applicable law." Ex. Ex. 362 the F. default 3d at 299 is therefore (arbitrator required to award plaintiffs attorney's fees and costs under the FLSA where arbitrator could, the prevailing party to "in recover s or her discretion, fees and costs only permit to the extent permitted by applicable law.") . Fee shifting alone is not per se sufficient to render a class action waiver enforceable. The Court of Appeals expressly noted in American Express that that case involved an arbitration agreement under which not only were attorneys' fees recoverable, but also treble damages, but that Court nonetheless 48 refused to compel arbitration. 198. for Therefore, the same judicial the arbitration agreement here provides mandatory forum plaintiffs that are is not American Express II, 634 F.3d at not shifting in of itself practically attorneys' fees sufficient precluded to from as in ensure pursing a that their statutory rights. 17 While the Court reasoning of Sutherland, agrees with and no such practical fully individual recoveries plaintiff in neither Sutherland, lunacy counsel, to nor pursue and is many times large enough for either fanaticism her claim the obstacles exist to indi vidual recovery by Bodden or Raniere here. potential adopts Each of their larger than the that it would be or her plaintiff, individually. IS This is in consideration of each plaintiff's right to ftto include the risk of losing, and thereby not recovering any fees" the potential costs of her suit, American in evaluating I at 554 F.3d ------------~~------ at 318, and as well as the fact that the arbitral agreement here provides for mandatory shifting of attorney's fees. 19 17 Defendants additionally rely on Pomposi, 2010 WL 147196, and D' Antuono v. Service Road Corp., 789 F.Supp.2d 308 (D.Conn. 2011). However, neither case meaningfully discussed a plaintiff's ability to retain counsel when the total fees and costs was many times the potential recovery. 16 Plaintiffs' counsel's unwillingness to do so is beside the point. (See Gilly Decl. ~ 27, (Dkt. 48).) 19 Plaintiffs' counsel has stated that he would be unwilling to take these cases on an individual basis. (See Gilly Decl. ~; 27 (Dkt. 48).) 49 In sum, circumstances, having examined the totality of the facts and the Court finds that the collective waiver provision at issue here is not unenforceable on the basis that costs would statutory prevent rights Raniere in or Bodden individual from vindicating arbitration. See their American Express II, 634 F.3d at 196. iii. Practical Effect Deciding the enforceabil i ty of this collective action wai ver on the basis of quite clear Congressional action seems, in this and instance, hotly to be contested preferable costs. American Express II, to This proj ecting decision is hypothetical fortified by which must be read to require that if any one potential class member meets the burden of proving that his costs rights preclude him from in arbitration l class or collective. 20 Any other reading effectively vindicating the clause is See American would unenforceable II, ------------~~-------- lead district his courts statutory as to that 634 F.3d at 194. down the rabbit In this regard, Plaintiffs have provided declarations estimating that Lori Lesser would have no after tax recovery using a two year statute of limitations and would have only a $1,161 recovery after taxes assuming a three year statute of limitations and using the fluctuating workweek method. Plaintiffs estimate that David Hind would have no after tax recovery using a two year statute of limitations and a $4 ,637 recovery using a three year statute of limitations and the fluctuating workweek method. Plaintiffs provide no pre-tax estimates for either Lesser or Hind. (Gilly Decl. ~ 10 (Dkt. No. 48).) 20 50 hole of piecemeal litigation, confounding the twin advantages of reducing judicial caseload as well as costs to litigants. Although the collective action waiver unenforceable and therefore must be severed, F.Supp.2d at 410-11; Herrera, Credit Suisse 2031610, First at *6 Boston, (S.D.N.Y. provision see Chen-Oster, 532 F.Supp.2d at 647; Corp., Sept. 01 Civ. 785 Beletsis v. 6266, 2002 WL 2002), the Court cannot order class arbitration of the instant claims. The 2011 Arbitration Policy expressly provides that found to be unenforceable, collective, court of excl usi ve or forum Accordingly, compel arbitration such the in claims. Court its the event action basis jurisdiction, for 60) .) "[iJ n this then any claim brought representative competence 4, No. is must on a be and such court ff must entirety (Gross Decl. shall in a be the (Dkt. 49 therefore is class, filed deny Defendants' and waiver No. motion to declines to dismiss or stay any court proceedings. Regardless action will proceed, of this as even determination, without Raniere named plaintiff as well as eight opt-ins remain. 51 this and collective Bodden, one III. Plaintiffs' Motion for Conditional Collective Certification and Related Relief is Granted Plaintiffs collective group of Lending Specialists, seek conditional persons certification employed Loan Consultants by Defendants of the "as Home and/or any other similar positions who were not paid overtime compensation for all hours worked in excess of 40 hours per week H from three years prior to the filing of (Gilly Aff. this Ex. B law suit on April (Dkt. No. 18}.) 8, 2011 B (Dkt. No. disclosure of numbers, 18).). addresses addresses and dates Lending Specialists, See Gilly Aff. I Plaintiffs additionally seek expedited "the names, email the present. Plaintiffs have proposed a Notice of Pendency and Plaintiff Consent Form. Ex. to I home and mobile I of Loan Consultants, lending position employed from a employment of telephone all Home and any similar mortgage date three years prior to the filing of this action for such employees who worked outside of New York State and from a date six years prior to the filing of this action for such employees who worked in New York state. s. Cert. Mem. 18.) A. The Standard for Conditional Certification for FLSA Collectives 52 /I The FLSA overtime wages t at requires employers to pay their the rate of time and a half t employees for hours in excess of 40 hours worked in a single week if the employees are not "exempt 207. are under several recognized categories. 11 The FLSA exempts employed employed as circumstances t § an administrative or of the executive if salespersons t combination are they foregoing capacitYt highly in certain or, when they are employed in retail services. 213 (a) (1) § from overtime requirements persons who outside a compensated t 29 U.S.C. in 29 U.S.C. See (administrative, executive, outside sales t and retail services exemptions) compensated employee (combination exemption) i 29 C.F.R. exemption) 29 i § 546.601(a) C.F.R. § 541.708 are exemptions These (highly narrowly construed and the burden rests on the employer to show that the employees are properly classified as exempt. See Martin v. pursuant to Malcolm Pimie t Inc. t 949 F.2d 611, 614 (2d Cir. 1991). Plaintiffs' the FLSA. Section 216(b) provides for federal a private claims are brought As earlier discussed t this section right of action to recover unpaid overtime compensation and liquidated damages from employers who violate the Actts overtime provisions. See 29 U.S.C. 53 § 216(b). With regard to collective actions, the FLSA states, in relevant part that: An action may be maintained against any employer . in any Federal or State court of competent jurisdiction by anyone or more employees for and in behalf of himself or themselves and other employees similarly tuated. No employee shall be a party plaintiff to any such action unless he gives his consent in wri ting to become such a party and such consent is filed in the court in which such action is brought. 29 U.S.C. 216(b). § Courts in this Circuit utilize a two step process for determining whether 216 (b). e.g., See, Cir. 2010). to proceed collectively Myers v. Hertz Corp., In the first stage, under Section 624 F.3d 537, 554 (2d the court must make an initial determination as to whether the named plaintiffs are "similarly si tuated" to the putative collective members. Id.; see also Cunningham v. Elec. Data Systems Corp., 754 F. Supp. 2d 638, 644 (S.D.N.Y. 491 F. 2010) (quoting Lynch v. 2d Supp. 357, 368 United Services Auto. (S.D.N.Y. 2007)) ; Ass'n, Morales v. Plantworks, Inc., No. 05 Civ. 2349 (DC), 2006 WL 278154, at *1 2 (S.D.N.Y. Feb. 2, been described as 2006). a If the named plaintiffs make what has \\ 'modest factual showing' /I that they and potential opt-in plaintiffs "' together were victims of a common 54 policy or plan that violated the law,'" court facilitated notice is appropriate. Sbarro, Inc., Cunningham, 624 982 F. 754 F. Supp. Supp. For this reason 368. "notice stage." and 249, 261 2d at 644: the See Lynch Because iminary t F. 3d at t initi 555 (quoting Hoffmann (S.D.N.Y. Lynch t 1997)); 491 F. v. see also Supp. 2d at phase is often termed the 491 F. Supp. 2d at 368. certification subject at this first reevaluation t to early stage is burden the demonstrating that potential plaintiffs are "similarly situated" is very low. See Lynch, 491 F. Supp. 2d at 368: 269 stage t F.R.D. 321, 336 (S.D.N.Y. cer v. Pier 2010) ("The f t conditional certification, requires only a modest factual showing based on the pleadings and affidavits that the putative class members violated omitted) . the ", were law.") victims of (internal leniency of a common citations policy and or plan quotation that marks s requirement is consistent with the broad remedial purpose of the FLSA. t 269 F.R.D. at " 336 (quoting Morales, 2006 WL 278154 at *2) 21 This lenient standard is II \ considerably less stringent' If than the requirements for class certification under Rule 23. Vaughan v. Mortgage Source LLC, No. 08 Cir. 4737 (LDW) (AKT) , 2010 WL 1528521, (E.D.N.Y. Apr. 14, 2010) (quoting 199 481 (E.D.N.Y. 2001» i see also 09 Civ. 322 (CM), 2009 WL 1585979, 21 55 At ~some this factual initial basis step, which from Plaintif the similarly situated potential WL 278154 F.R.D. at 429, (quoting fidavits v. 1995) own pleadings, and declarations 465112, at *1 Things, Inc., (S.D.N.Y. plaintiffs potential iffs' York substantial 2006 163 marks by relying or the class members." 3785 (KTD), ada (S.D.N.Y. Apr. WL Linens v. 2008 'N 26, 2007)). to find plaintif situated allegations if Co., quotation (citing similarly Tel. declarations, may be appropriate and determine requirement Civ. *4 provide Morales, other potent 2007 WL 1552511 at ~ pI New fidavits, 2008) In some cases, can (internal 99 only st." iffs may satisfy this ~ their court plaintiffs Jackson (S.D.N.Y. 431 omitted) . on *2 need that based they simply and on potenti plaintiffs were common victims of a FLSA violation, particularly where defendants plaintiffs Reade, Oct. reflect Inc., 5, have a 04 Civ. 2006) admitted that company-wide 8819 (GEL), the policy. ~may Oct. 11 challenged by Damassia 2006 WL 2853971, v. *3 Duane (S.D.N.Y. (internal quotation marks and citations omitted); accord Davis v. Abercrombie & Fitch Co., (S.D.N.Y. actions 23, 2008) satisfied with *476 'substantial nexus between named plaintiffs with regard to their (~s 2008 WL 4702840, larly legations' and potential employer's 56 situated" leged of at *9 standard a factual opt-in plaintiffs FLSA violation") (quoting Ayers v. *5 8G8 Control 8ervs., (S.D.N.Y. Dec. 21, the 2004)) Inc., 2004 WL 2978296, at (additional citation omitted). At this stage, "court need not evaluate the underlying merits of a plaintiff's claims to determine whether the plaintiff has made the minimal showing necessary for court-authorized notice." Damassia, 229 2006 WL 2853971, F.R.D. 381, Marketplace, 391 Inc., *3 (citing (W.D.N.Y. 282 F. 2005) i Gjurovich Supp. 2d 101, certification is not 105 v. Emmanuel's (S.D.N.Y. 2003) i Sbarro, 982 F.Supp. at 262) . However, factual showing that this stage that [he] common is Primedia Inc., (S.D.N.Y. Nov. 261) . [the putative representative] 'modest,' or 02 6, must be plaintiffs plan that Civ. 2003) 'sufficient (CBM) , 2222 (quoting the to Sbarro, of Levinson WL 982 demonstrate victims law.'" 2003 the must make at together were violated "While a v. 22533428, SUpp. F. *1 at 249 "The modest factual showing cannot be satisfied simply by unsupported assertions, proof it and potent policy automatic. because determine exist." the whether Myers, but it should remain a purpose of this 'similarly situated' 624 F.3d at 555 and quotation marks omitted). first low standard stage is plaintiffs merely do (emphasis in original, in fact citations ftConclusory allegations" 57 to are not See Morales enough to satisfy this burden. 2006 WL 278154 l 1 at *2 3 (internal quotation and citation omitted) At defendant second the may move to following stage l decertify the discoverYI collective if the discovery shows that the individuals who opt-in are not in fact similarly Myers situated to the named plaintiff (s) action may be 'decertified ~The are not and l without the opt-in prejudice." stringent because the This court F. 3d at 555. if the record reveals that they l plaintiffs Id. 624 1 claims l second "is able may stage to be dismissed inquiry examine is whether more the actual plaintiffs brought into the case are similarly situated." Gortat v. a Brothers Inc' --------------~...--------------~------ 1423018, at *10 (E.D.N.Y. Apr. "Because retain courts plaintiffs are the similarly 07 Civ. l 9t 2010) ability situated 3629 (ILG) 1 2010 WL (emphasis in original). to reevaluate at the second whether the stage, the first-stage determination is merely 'preliminaryt and subject to reversal, low. " explaining why the plaintiff f s Cunningham, 754 F. Supp. F.Supp.2d at 368 and Lee v. ABC first-stage burden is 2d at 645 ~~__~~~~C.~~~ ting Lynch, 491 & Homer 236 F.R.D. 193, _ _~~~~ 197 (S.D.N.Y. 2006)). B. Plaintiffs Have Made a Sufficient Showing that Potential Opt-in Plaintiffs are Similarly Situated 58 They and In the instant case, they and the potential loan consultants, opt Plaintiffs have all alleged that plaintiffs, home lending speci positions at Citi off who ists, also worked as or similarly titled s, were subject to a national policy of working more than 40 hours per week without receiving overtime in violation of the FLSA. Specifi ly, Plaintiffs lege they "worked substantially in excess of 40 hours per week, frequently working between 50 and 70 hours per week" and that until on or about September I, 2010, Plaintiffs were compensation for hours worked in excess not paid overtime 40 hours per week and that before that time Defendants did not keep time records for loan consultants. No. 20); Bodden Dec. 10-12 (Dkt. affidavits No. of (Singer Decl. No. 22); allege, r ~ (Compl. ~~ 36-38; Raniere Decl. 10-12 21).) opt-in ~~ s (Dkt. No. ~~ Lesser Decl. 10-12 is Singer, (Dkt. No. 24) 10-12 supported Hind, Hind Declo i (Dkt. No. primary duty and ~~ 23).) was interested in to complete purchasing mortgage a home 3-9 Declo 25-34i (Dkt. No. ~~ 3 9 Raniere Decl. 19) i (Dkt. ~~ 3-9 Vosburgh Declo No. 24) i 3-9 Hind Declo 59 the Lesser. 10-12 (Dkt. that applications mortgage and (~ee for that Compl. (Dkt. No. 20); Bodden Dec. ~~ (Dkt. No. ~~ 3-9 ~~ Plaintiffs' their duties in so doing were substantially similar. ~~ by and affidavits of three opt-in plaintiffs support, customers at 10 12 (Dkt. 19); Vosburgh Decl. allegation plaintiffs ~~ 21) (Dkt. i ~~ Singer No. 22) i Lesser Decl. " they 3-9 (Dkt No. 23).) Plaintiffs also attest that "frequently interacted with many other Loan Consultants and are ll "aware that other Loan Consultants performed the same job duties as me and at all times have been treated similarly to me by Citi with respect to hours worked and compensation policies and practices," and that they are aware that other Loan Consultants were not paid overtime. Raniere Declo 12-13, is 12-13, No. 19); Singer Decl. 21); 5, 5, (Dkt. 15 " 12 " (Dkt. No. 22) likewise organized for by Loan 5, (Dkt. No. 15 5, " 5, (Dkt. 12-13 No. Hind Decl. 24); assertions, conference Consultants 45-47; (Dkt No. 23).) 12 aintiffs' regular " 4, Bodden Dec. 20) i Vosburgh Decl. Lesser Decl. " i the its (Dkt. No. 12 13, supported regarding below, 5, 15 See Compl. at " Is nationally, " This discussed that as Citi well as memoranda it sent to Loan Consultants nationally. Plaintiffs' further assert that whi their formal job titles changed from time to time during their employment, their primary duties did not change. (Dkt. No. 20), Bodden Aff. at , (Dkt. No. The 21).) support this point. Decl. , No. at , 2 (Dkt. No. 19); Vosburgh Aff. at , 2 affidavits of three See Singer Aff. at , 2 (Dkt. No. 24) Hind 2009, 2 (Dkt. i Plaintiffs further provide a memorandum sent on April 30, 60 , plaintiffs 23).) 22); Lesser Decl. opt in No. 2 (Dkt. 2 (See Raniere Aff. by Jeff Arestivo, Home Lending title ists changed was No. , from 24).) 1 notified Home to Consultants included Chicago, " No. Director, notifying Consultant" , 2, 19); Ex. 1 S s of mortgage them to "Home , 14 " nationally Loan Consultants Maryland, 20); Florida, 13, 14 No. 21); (Dkt. No. that from conference 13 (Dkt. Singer Decl. ions ti on New Texas, sent these Jersey, Missouri, See Raniere Decl. No. , calls and York, California, (Dkt. 1 which also participants New and Nevada. , Bodden (Dkt. and their Lending Ex. 2, processing 13 22); Lesser Decl. all 20); Bodden memorandum, national to that (Dkt. No. Decl. that Specialists Illinois, Michigan, No. 13, Decl. "Loan compensation and Connecticut, (Dkt. nationwide, allege Lending Mortgage is similar to many nationwide communications Loan calls (Dkt. Plaintif addressing National See Raniere Decl. Ex. 2, topics, Citi Spec Specialist." Decl. the , 13 19); Vosburgh (Dkt. " No. 13, 14 24); (Dkt. Hind No. 23) . ) aintiffs' I, declarations state that 2010, during a nationwide conference call, Citi Nat Mortgage Sales rector, on or about July Desmond Smith, the informed I Home Lending Specialists that their position "was now considered non-exempt" and that forward. would begin receiving overtime compensation going See Raniere Decl. " 61 13 -16 (Dkt. No. 20) i Bodden Decl. ~~ 13-16 (Dkt. According 24) . ) to call, conference No. 19); ~~ Singer Decl. plaintiffs, Plaintiffs on this all and 13-16 (Dkt. same other No. nationwide Home Lending Specialists were notified that they would be required to begin recording their hours on (See Raniere Decl. (Dkt. No. to 19) i of (Dkt. No. 20) 13-16 ~~ Singer Decl. Plaintiffs, hundreds ~~ ti's internal time keeping Home Lending other similarly titl employed, Specialists, 13, (Dkt. No. 17 Vosburgh Decl. (Dkt. No. 24) ~~ 13, 15 i ~~ 20) i 13, 15 (Dkt. No. ~~ 13, ~~ 21) i 15 ~ 13, 13-16 currently employ Loan (See Compl. Bodden Decl. Hind Decl. Consultants, were the Raniere Decl. 51 i (Dkt. No. 17 ~~ Singer (Dkt. No. 22) and 19) i 13, 17 i Lesser Decl. s' nationwide (Dkt. No. 23).) Plaintif reclassi and ~~ According positions whose primary dut origination of home mortgages. ~~ Bodden Decl. i (Dkt. No. 24).) 13 16 Defendants have tware. cation collective, contend of potential particular, wide policy or plan. that members constitutes While this justify conditional certification, De evidence the of putative a company- one is insufficient to evidence to this effect does lend support to conditional certification in so far as it supports plaintif Defendants treated PI iffs and potential opt with uniform pay and employment-related policies. 62 In this regard, rcuit Defendants and elsewhere are regularly misclassification cases. -""'-- be that deny (See Defs. employees appropriate may Cert. have certification of Am. Defendants' Inc., (W.D.N.Y Oct. Francis v. A 4619858, 04 Civ. 17, 2005) E Stores, Inc., & *3 n.3 11.) in See to that the other employers' Thompson Corp., 364 (E.D.N.Y. 2005); ABC Carpet, 236 F.R.D. at ~~~~--~~~~----~ at *4 showing Patton v. this (finding notice to subjected Specifically, Bout in Opp' n Mem. simple been F. Supp. 2d 263, 267 197. a 'misclassifying.'''); practice of also "upon courts FLSA ,491 F. Supp. 2d at 370 (S.D.N.Y. 2007) typically (S.D.N.Y. reliance 0840 (E) on (SR), Diaz v. Elec. 2005 WL 2654270, for that point is unfounded. 06 Civ. 1638 Oct. 16, 2008) (CS) See (GAY), 2008 WL (noting that Diaz is weight of authority") . "against Second, certification even under the more standard, policy is appropriate, F.3d incorrect at 549 ("With consideration stringent of a blanket though not dispositive. Hertz's respect Rule 23 class exemption 624 See blanket exemption policy, we agree with the Ninth Circuit that while such a policy suggests exists 'the among relevant to employer the the believes employees,' inquiry some and here, is the degree thus existence exemption policy, standing alone, is not it 63 in of a of homogeneity general a way blanket f determinative of 'the main in individual between concern the and predominance common 2009)) 159-60 i Damassia v. (quoting In Duane 571 F.3d 953, Reade, Inc., re 957, 250 balance Wells 959 (9th F.R.D. 152, (noting common exemption policy's relevance but examining evidence regarding predominance the Rule under actual 23). judgment stage or at trial, reclassification of culpable conduct. 08 Civ. 1463, (denying fact the issues.''') Fargo Mortgage Overtime Pay Litig., Cir. inquiry: as to exemption even at to the find summary status as evidence Countrywide Home Loans, at *5 upon whether plaintiffs courts have on occasion considered See Wallace v. judgment of Indeed, 2009 WL 4349534, summary remains FLSA duties (C.D. finding Cal. that reclassification Nov. 23, of Inc., 2009) genuine issue was admission an of that wages were owed or were instead a resolution to a dispute) Rubery v. Buth-Na-Bodhaige, (W.D.N.Y. 2007) decision to change n.4 (Cal. Supp. 2d 273, 280 n.6 noting that "[t]here factual dispute regarding the defendant's [plaintiff's] Inc. v. 2004) 470 F. (denying summary judgment, also appears to be a Drug Stores, Inc., i Super. Ct. status to non-exempt") of L.A. Cty., (noting that the trial court i Sav-on 96 P.3d 194, 202 "could rationally have regarded the reclassification as common evidence respecting both defendant's classification policies actual status during the relevant period") . 64 and the [employee's] fundamentally, More advocated by Defendants is conditional certification. issue underlying the fact-intensive inconsistent with the standard Defendants contend that Plaintif Notice Motion inquiry for "[t]he very here that Citi led to pay LCs overtime by treating them as exempt employees - requires a t-specific inquiry to assess each consultant/specialist] 's See Def. Cert. qualification Opp'n Mem. 2, for 16 24.) various The [home lending exemptions." issue is not whether Plaintiffs and other Loan Consultants were identical in all respects, but "rather whether they were subjected to a common policy to deprive them of overtime pay when they worked more than 40 hours per week." A person by-person Vaughan, -intensive conditional certification courts this inquiry stage rej ected by wi thin =L=e=h=r=m=a=n~::..........c=-:....;,,-,---=I=n:....:c-=., ("[a]t (rej ecting Co., sputes, 517 2d 2d argument applicability of individualized established that premature been See 31 7, phase, at *7. 326 at the specifically Cohen v. Gerson (S . D . N . Y . 2010 ) the court does not ide ultimate issues on the Supp. F. "[d] efendant' s claim of valid, Supp . is has Circuit. credibility determinations") Ins. its F. and [the conditional certification] resol ve factual or make 686 2010 WL 1528521, Neary v. 606,621-22 that in Metro. (D. Prop. Conn. determining whether exemption is of administrative necessary"). It Plaintiff's 65 claims is need & 2007) the inquiry merits i is wellnot be resolved at this early stage. Lynch, 491 F. Supp. 2d at 368 ("a court should not weigh the merits of the underlying claims in determining whether potential opt-in plaintiffs may be similarly situated") ; (GEL), v. Duane Reade.... ~~~~~--~~~~~--~~~ 2007 WL 2873929, *2 (S.D.N.Y. Inc., ~~~~ 2007) No. 06 Civ. 2295 (citations omitted); Damassia, 2006 WL 2853971, at *2; Scholtisek, 229 F.R.D. at 391; urovich, cf. 282 F. Supp. 2d at 105; Sbarro, Cunningham, stringent 754 second stage stringent Supp. 638 2d evaluation (refusing because some to apply more discovery had Only after discovery do courts engage in the been conducted). more F. 982 F. Supp. At 262; inquiry, whether the opt-in plaintiffs fact similarly situated. See Chowdhury, are in 2007 WL 2873929, at *3; Damassia, 2006 WL 2853971, at *3; Neary, 517 F. Supp. 2d at 620. As earlier noted, Defendants' reliance on Diaz to the contrary is unavailing. See Francis, 2008 WL 4619858, *3 n.3 Diaz, 2005 WL certification 2654270, where and other fact-specific cases inquiry (noting that "denying might conditional be required, seem to be against the weight of authority in undertaking that analysis at the first stage of the certification process, rather than evaluating at the decertification stage whether the need for analysis individual makes inappropriate.") . 66 a collective action Indeed, cases involving evidence class of was a conditional certification has been granted in mortgage factual loan nexus between See presented. officers where similar of members Vaughan, 2010 or proposed WL the 1528521 less at *1 (granting conditional certification of collective action of officers) i (E.D.N.Y. Bifulco v. 2009) 08 Civ. 4951 (same) i (ARL) , (same) i Thompson v. v. Concord Shabazz v. motion to 08 Civ. F.R.D. Civ. 24, 209, 245, collective 2010) 3909 (DRH) (same) i (JFB) (same) i 251 217 Corp., 2009) 04950 2009) 269 F.R.D. decertify 07 Sept. June 16, Morgan Funding Corp., (denying Corp., Ltd., (E.D.N.Y. 262 (E.D.N.Y. Aug. 20, (E.D.N.Y. Franklin First Fin., 2009 WL 1706535 at *1 *6 Mortg. 2009 WL 3063316 at *1 Inc., World Alliance Fin. (AKT) , 2010 WL 3394188, Searson Sexton v. 2010) Mortgage Zone, (ARL) , see also (S.D.N.Y. action of loan officers) . Defendants additionally collective members are not assert that the similarly situated because be subj ected to different arbitration agreements. for conditional certification, have made a "modest factual purported they may On a motion the inquiry is whether Plaintiffs showing" that they and potential opt-in plaintiffs "were victims of a common policy that violated the law." Myers, whether 624 F.3d at 555. particular While Defendants assert that arbitration 67 agreements at issue are enforceable "present unique defenses unsuitable for collective action treatment," they conflate the standard for certification under Rule 23 with that for FLSA conditional certification. Def. Cert. Opp'n Mem. at 17.) by Defendants certif and in support Indeed, each of the cases cited of s argument stringent--analysis Clausnitzer v. Fed. Exp. than Corp., that 248 applicable F.R.D. 647, Fla. 2008); and class (S.D.N.Y. 2003); Civ. (S.D.N.Y. May 28, 2002) 1995 here. 655 56 See (S.D. 219 F.R.D. 307, 00 (DNE) , involved ion pursuant to Rule 23 which involves a different more 316 20 (See WL In re 6689 i 422067, Independent (SAS), Energy Holding 2002 WL 1059086, PLC at *4 Beck v. Status Game Corp., 89 Civ. 2923 at *4 (S.D.N.Y. July 14, 1995) . Defendants have failed to cite a single authority finding that due to the possibility that members of the collective might be compelled bring to certification suited to record, is the their not claims in appropriate. Such second certification stage, an arbitral arguments where, are on a forum, best fuller the court will examine whether the plaintiffs and opt- ins are in fact similarly situated. In declarations addition, See Defendants -"'-- have , 624 F.3d at 555 submitted eleven from current employees in attempts to demonstrate the diversity of job functions among 68 the purported collective See Dkt. No. members. Ruggles v. 2008), Wellpoint, 34-44.). However, 591 F. Inc., attempt [a] ffidavits Supp. with sixty-six and challenge Plaintiffs' (66) competing part Court to fiants and l conditional process is of the resolve to its own in an similarly situated aintiffs, their initial burden. affidavits determine (N.D.N.Y. ability to show any common policy or such opposition would not defeat they have met 160 opposition employees were not to show that if 2d 150, [Defendant's] "[n]otwithstanding Plaintiffs' as the court found in at facts, legal certification stage determine To balance the It would potent 1 of later to avoid. require credibility contentions I and structured so as this at this f As the of which the decertification long as aintiffs' Affidavits are sufficiently similar and detailed to constitute a preliminary showing that together were have their burden. met victims of 686 F. Supp. "wade a preliminary thicket stage ll a Id. also Cohen, into they the defense. fI') v. A & defendant of because was Inc., at '" other [t] 0 potent policy 160 61 competing or plan, (citations (S.D.N.Y. factual hold plaintiffs 2010) Plaintiffs omitted) i (declining to assertions to see at contrary this would collective action in any FLSA case asserting (quoting Neary, E Stores, common 2d at 330 preclude certification of a where and 517 F. 06 Civ. 1638 69 an administrative Supp. (CS) exemption 2d at 621-22) i (GAY) I Francis 2008 WL 4619858 at *3 (S.D.N.Y. Oct. 16, 2008) ("whi Defendant has supplied what it calls 'undisputed store manager affidavits,' on which it also relies ASM duties are variable, for the proposition those affidavits should be discount at this stage."); 2008 cite WL 4702840 plaintiffs' at ("Defendants the declaration of supervisor attesting that such a practice was never This, of course, allowed to occur. value *7 Davis, as pla iffs' affirmations is of the same evidentiary to the contrary. This is a factual dispute which the Court cannot resolve at this stage and record. ") on this limi cases (citation omitted) . relied on by Defendants opposition to preliminary certification are either inapposite or unpersuasive. Many are inapplicable because they involve certification of a Rule class 23 stringent, using analysis. different, ., See 938 Vinole substantially v. Inc., 571 F. 3d at 958-59; Bachrach v. Chase Inv. 2785 3d 935, and Loans, Civ. 571 F. a (9th Cir. (WJM) , 2007 WL 3244186 at *1 more Countrywide Home 2009); -----~-'Wells Services Corp., (D. N.J. Nov. I, 06 2007). Others involved analysis under the more fact intensive scrutiny of the second, later decertification v. First Residential Network See Inc., 06 Civ. 381 ~~~~~~~~~~~~=-~~=~,~~~~~~~~~ WL 2162963 at *2 e. (H), 2009 (W.D. Ky. July 16, 2009); Wong v. HSBC Mortg. 70 Corp. (USA), 07 Civ. 2446 (MMC) , 2010 WL 3833952 at *2 (N.D. Cal. Sept. 29, 2010). Finally, Defendants cite a number of cases in which the plaintiffs failed to provide evidence to support a of an here. unlawful See, (W) (WMC) , common policy or e.g., 2008 Trinh v. WL plan, which JP Morgan Chase 1860161, at *3 4 not Co., & (S.D. is Cal. finding the case 07 Civ. 1666 Apr. 22, 2008) (FLSA collective action by two loan officers employed for than six months in the same office, that [they] and the essentially the same compensated in the members evidence, are N.J. to 05 Civ. 3120 19, one page of sole 2006) piece of in the and were no real suggesting that loan (JAG), declaration in same compensation same (insufficient evidence training rece required May had "provide [d] speculation, Realtors, We class and manner" own work putative description same their where they "simply state [d] of across the country f and beyond job less manner") i 2006 WL 1455781 at *1 showing of support Armstrong where (D. "[p]laintiff William Armstrong of motion the v. as the ass certification") . In exhibits, sum, by way of the pleadings, affidavits, Plaintiffs have made more than the necessary 71 and "modest showing" of a nexus between potential opt-in plaintiffs their situation for conditional and that of certification of a collective action pursuant to Section 216(b) of the FLSA. C. Collective Definition Plaintiffs' defined the proposed collective as, current and former employees of Defendants who worked all "as Home Lending have Specialists, Loan Consultants were not paid overtime excess of similar positions who all hours worked in 40 hours and/or any compensation for per week" from years prior to the filing of this law suit on April 8, the (Gilly Aff. present. argue that this class individual inquiry employees and individual 22 as Ex. of (Dkt. definition to constitutes inquiry B the the No. fails primary 18) .)22 because duties fail-safe. a type proposed other As by 2011 to Defendants it of three requires Defendants' noted above, Defendants is Plaintiffs have also put forward the following definition: [T] he collective group of persons employed by Defendants Citigroup Inc., citibank, N.A., and/or CitiMortgage Inc. (together "Defendants" or "Citi"), as "Home Lending Specialists," "Loan Consultants," and any and all other similarly situated positions engaged in the primary duty of assisting customers with home mortgage and/or re-finance applications, who were not paid overtime compensation in violation of the Fair Labor Standards Act (the "FLSA Collective") for the period of three years prior to the filing of this Complaint to the date of the final disposition of this action ("the FLSA Collective Period") . As the definition included in the Plaintiffs' proposed (PIs. Cert. Mem. 1.) notice is narrower, and the Court finds more suitable, that definition is addressed here. 72 inappropriate Plaintif this stage. Second, Defendants definit proposed collective failMem. at amounts · t l. "anyone who was wronged by at 12.) The proposed definition argue to that a legal (Def. Cert. Opp'n II if s the categories of employees entitled to notice based on current and/or former job tit See e. certifying collective employed by situat or 262 F.R.D. "all who at 215 simil are or were definition is a employed similarly titled employed ll ) loan Thompson, i as 2010 by Defendant positions H ) . as loan Plaintiffs' cry from the unworkable class definitions in the cases cited by Defendants. 626 F.2d 600, persons (conditionally certifying collective of "all persons other (conditionally situated similarly titled positions WL 3394188 at *7-8 officers of [d]efendants, officers or similarly Bifulco, 601, 603 See, e.g., Adashunas v. Negley, (7th Cir. 1980) (rejecting Rule 23 class definition of "all children within the State of ana entitled to public education who have learning disabilit and who are not properly identi as to does guarantee one 4533, minimally identify identified?"); and/or not receiving spec adequate class members Randleman v. 2011 WL 1833198 at *4 education" consisting instruction because of persons Fidelity Nat' 1 Title Ins. (6th Cir. May 16, "[h] ow 2011) I not 09 Ci v. (Rule 23 class definition improper because it was tantamount to those who 73 are "entitled to relief" such that the merits are necessarily decided prior to class certification) . Defendants additionally contend preliminarily certifies a col the Citi branches aintiffs' plaintiffs, particular, as by well as support certification as discussed working the national that regards to same job nationwide the those named Plaintiffs. submitted by opt-in fully above in Part In III.B, ts as to the similar nature of duties both before and of loan consultants national utilized them, Court that they were not paid overtime pay despite reclassification Citi the a national collective. more Plaintiffs have submitted af their job duties, if it should do so only for worked affidavits, that and uniform and conference they were Is and pay aware, memoranda, after as ti's non-exempt, policies by way of that with Ci ti' s other loan consultants were subject to the same nationwide Citi pol Accordingly, at least at this preliminary stage, Plaintiffs established a Loan Consultants f icient factual nexus between other Citi offices. themselves This is and icularly the case in light of Defendants' motion to dismiss, transfer, or a stay on the grounds that ~identical" a Loan Consultant in the Florida-based 74 claims been made by action. Based on the parties' arguments and the findings made above, the Court limits the purported FLSA to "persons employed by Defendants lective definition Citigroup Inc., Citibank, N.A., and/or CitiMortgage Inc. as Home Lending Specialists, Loan Consultants, and/or other similarly titled positions engaged in the duty primary and/or re-finance prior to April as sting applications 8, 2011 until customers for the 1993) (court is empowered definition under Rule 23) i home period the present." Sec. Pac. Auto. Financial Servs. Corp., Cir. wi to three an see also Bifulco, years See Lundquist v. 993 F. 2d 11, adopt mortgage 14-15 appropriate (2d class 262 F.R.D. at 215; Thompson, 2010 WL 3394188 at *7-8. D. Notice Plaintiffs not further request that the Court authorize of this action to be sent to all potential members FLSA Collective. Plaintiffs estimated that there are "hundreds" of potential opt-in members nationally. As the earlier discussed, (PIs. Cert. Mem. 4.) though the FLSA does not expressly provide a district court with the authority to order notice, \\ [t] he Second Circuit has recognized a district court's authority to order that notice be given to potential members of 75 a plaintiff referred class to provisions (internal as of the of fit from notice before 165 1 it ) a court distributed. accordance with II can Both disputes is F. to the opt in 2d at 335 preparation and ensure the about (generally Supp. monitoring informative. settl section pursuant 1 569 \\By not this that parties the it and the content Hoffman-La Roche is the 493 U. S. Order the 1 at 172. In parties shall approval submit a WL in order to ensure that at at 1706535 1 proposed notice 938584 the *4 to (\\the Court at *6 j parties (same) (E.D.N.Y. 1976) for See Sexton II ) submit Mendoza l j jointly prepared l' and provide l (same). j shall approval scholtizek v. (W.D.N.Y. 2005) l ) j a l joint 2008 WL Chowdhury 1 (\\the Court expects the parties to work out those issues on their own stipulated notice") this the drafting and distribution for (\\notice should be 2007 WL 2873929 1 of accurate and informative. *13 the terms joint proposed notice to the Court of the notice is timelYI 2009 1 RuberYI omitted) and l under actions FLSA." the accurate court actions \ collect citation distribution timelYI in Carter v. Eldre Corp. Inc' ------------------~~----- 76 Court wi th the I l 229 F.R.D. 76 F.R.D. 91 381 16 This jointly proposed notice shall be submitted within thirty (30) days of the date of this Order. E. Disclosure of Names Opt-In Plaintiffs Plaintiffs and Contact addit ly Information request the of Potential Court "direct Defendants to produce the names, last known addresses, telephone numbers (both home and mobi employment e-mail addresses, and dates of for all persons employed by Ci ti as a Home Special ist, position ), in Loan Consultant, any Citi years prior to the 0 and any similar mortgage ice filing nationwide, of this from Complaint lending a to three the " As has been noted by a number courts (PIs. Cert. Mem. 16.) in this circuit, "[c] ourts often grant this kind of request in connection with a collective action." Vaughan, 2010 WL conditional Sexton, 1528521, certification 2009 WL 1706535, at *9 ("Courts Circuit typically grant this motion for certification action") ; conditional fulco, Supp. 2d 334, 338; 262 --"-- F.R.D. type of at 216 at *13; an FLSA see also wi request of an of Second when granting a FLSA collective (same); 569 F. , 491 F. Supp. 2d at 371; ===-=1=1, 487 F. Supp. 2d at 350; Chowdhury, 2007 WL 2873929, at *2; Anglada, 2007 WL 1552511, at *7; Hens, 2006 WL 2795620, 77 at *5. This Court concludes that such a request is likewise appropriate in this case. In information addition, for all Plaintiffs persons request similarly three-year statute Plaintiffs request of the by Court a may exercise six-year Shahriar v. both three and Wash, Inc., 10 Cano at Inc., 2006 courts periods. jurisdiction, See 264 in this See (LDW) (AKT), M Food Corp., (E.D.N.Y. 07 Civ. (E.D.N.Y. Oct. 5038, 2211 Four *10 28 employees over which are governed U.S.C. Inc., 1367; § -- F.3d - Feb. F.R.D. 1126 3, 2443554, Circuit have granted Avila v. Northport 2011 WL No. 08-CV-3005, 2009); 833642 2009 WL v. CNA Alcantara 66-67 (S.D.N.Y. (JG) (RER) , 2007 WL 2994278, at *3 78 L~te, (E.D.N.Y. 2009); Inc., No. Aug. Car (E .D.N. Y. 61, 11, 2007) i Wraga v. Marble WL York law claims, limitations. context, CV ~~~~:=~~~I~n~c~., ~VLM, New (2d Cir. Sept. 26 2011). six-year v. Citi U. S . C . Smith & Wollensky Restaurant Group, In this 5710143, of 29 for state supplemental statute , 2011 WL 4436284 2011) i the any period six years prior see information going back six years because contact While the FLSA has a maximum limitations, contact same employed office located in New York State from a to the filing of this Complaint. the 22, Guzman at *5 05-CV 2006); v. (S.D.N.Y. 2002) 303, 308 146 Educ. Lab. Cas. (CCH) 34554 Realite v. Ark Restaurants Corp., 7 F. Supp. 2d i (S .D.N. Y. According to Plaintiffs, 1998). the number of Loan Consultants currently working in the tri state area is 78. ~ (See Raniere Declo (Dkt. No. 19) ~ Singer i 17 of New York is presumably a (Dkt. No. 17 20) Bodden Declo i that 17 As the number (Dkt. No. 24).) subset of ~ figure, the total potential plaintiffs to whom this larger period would apply does large, not appear to be The Court finds it appropriate and in the the six-year period. interest of turnover dur ing even withstandi economy j ln this case to allow the Plaintiffs to obtain the relevant contact information going back for a six-year period for potential plaintiffs who worked out of Citi offices will have New York "even if some rec cl that are ients of the notice time-barred under the FLSA." would be Cano, 2009 WL 5710143, at *10. Providing such information here neither unduly burdensome nor disruptive to Defendants. See Sexton, 2009 WL 1706535, Defendants at are *13 (citing Hallissey, hereby ordered to 2008 WL 465112, provide this *3). information Plaintiffs within forty-five (45) days of this Order. 79 at to Conclusion Based dismiss, upon or the Defendants' in motion the foregoing, al ternati ve to compel Defendants' transfer arbitration or motion stay, of is the plaintiffs Raniere and Bodden is deniedi and PIa to deniedi claims of iffs' motion conditional certification of an FLSA collective and related reI is granted. It is so ordered. New York, NY November ~ V1 2011 U.S.D.J. 80

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