Mccoy et al v. Transdev Services, Inc., No. 1:2019cv02137 - Document 43 (D. Md. 2020)
Court Description: MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 5/11/2020. (sat, Chambers)
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Mccoy et al v. Transdev Services, Inc. Doc. 43 Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 1 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : DANIELLE McCOY, et al. : v. : Civil Action No. DKC 19-2137 : TRANSDEV SERVICES, INC. : MEMORANDUM OPINION Presently pending and ready for resolution in this case brought under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”), is the Motion for Conditional Certification and Court-Authorized Notice filed by Plaintiffs. (ECF No. 27). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. following reasons, the Local Rule 105.6. motion will be For the granted, with modifications. I. Background1 Transdev Services, Inc. (“Defendant” or “Transdev”) is a Maryland corporation emergency medical which provides transportation individuals in Maryland. paratransit (“NEMT”) and services nonto In the past, Transdev operated under the names Veolia Transportation, Inc. and Yellow Van Services, Inc. Transdev operated under two contracts: 1 Unless otherwise noted, all Plaintiffs’ complaint, (ECF No. 1). facts one, with the City are taken from Dockets.Justia.com Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 2 of 22 of Baltimore, to provide NEMT services (the “Baltimore Contract”), and another, with the State of Maryland, to provide paratransit services (the “Maryland Contract”). have been in effect for over a decade. into two separate subcontracts Both contracts Transdev has entered (collectively, the “Davi Subcontracts”) with Davi Transportation Services, LLC (“Davi”) for a portion of the work required of Transdev under each contract. The perform Plaintiffs under the performed Maryland under both the that Contact through the Davi Subcontracts. work work Transdev and promised Baltimore to Contract, Some of the Plaintiffs performed Maryland Contract and the Baltimore Contract, while others only performed work under one of the two contracts. Regardless of which contract a given Plaintiff worked under, though, the job duties were all essentially the same: picking up, transporting, and dropping off individuals with disabilities and their aides; affixing wheelchairs to the vehicle; communicating with passengers in a manner compliant with Transdev’s policies, refilling the vehicle with gasoline at the end of the workday; and completing required paperwork such as Driver Manifests and vehicle inspection forms. (ECF No. 1 ¶ 35). Deandre Banks. The one exception to this was Plaintiff While all of the other Plaintiffs worked as drivers, Mr. Banks worked as a dispatcher and road supervisor. 2 Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 3 of 22 Plaintiffs allege subcontracts, that across Transdev all of the misclassified independent contractors. the contracts and Plaintiffs as Plaintiffs claim that they were in fact employees of Transdev. On July complaint 19, on 2019, behalf Plaintiffs filed a themselves and all of situated pursuant to the FLSA. collective others action similarly Plaintiffs also bring individual breach of contract claims as well as claims pursuant to (1) the Maryland Wage and Hour Law (“MWHL”) Md. Code Ann., Lab. & Empl. §§ 3-413(b), 3-415(a), and 3-420; (2) the Maryland Living Wage Law (“MLWL”) Md. Code Ann., State Fin. & Proc. § 18-101 et seq.; and (3) the Maryland Wage Payment and Collection Law (“MWPCL”), Md. Code Ann., Lab. & Empl. §§ 3-502 and 3-505(a). ¶¶ 85-131). 4). (ECF No. 1 Transdev answered on September 4, 2019. (ECF No. On November 18, 2019, Plaintiffs filed their motion for conditional certification pursuant to FLSA. (ECF No. 27). Transdev responded in opposition on December 10, 2019, (ECF No. 32), and Plaintiffs subsequently replied, (ECF No. 33). Since filing their papers related to class certification, the parties began written discovery, (ECF No. 36-1, at 2), under the supervision of Magistrate Judge A. David Copperthite, (ECF No. 37). delayed As of March indefinitely 18, due 2020, to deposition the written discovery remains ongoing. discovery Covid-19 crisis, (ECF No. 42). 3 has been although Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 4 of 22 II. Analysis “Under action the FLSA, against their plaintiffs employer for pursuant to 29 U.S.C. § 216(b).” Inc., 532 F.Supp.2d 762, may 771 maintain violations a collective under the act Quinteros v. Sparkle Cleaning, (D.Md. 2008). Section 216(b) provides, in relevant part, as follows: An action . . . may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. “This provision potential establishes plaintiffs must an ‘opt-in’ affirmatively scheme, notify their intentions to be a party to the suit.” the whereby court of Quinteros, 532 F.Supp.2d at 771 (citing Camper v. Home Quality Mgmt., Inc., 200 F.R.D. 516, 519 (D.Md. 2000)). When pursuant process. 2010). deciding to the whether FLSA, to courts certify generally a collective follow a action two-stage Syrja v. Westat, Inc., 756 F.Supp.2d 682, 686 (D.Md. In the first stage, commonly referred to as the notice stage, the court makes a “threshold determination of ‘whether the plaintiffs have demonstrated that potential class members are similarly situated,’ such that court-facilitated notice to putative class members would be appropriate.” 4 Id. (quoting Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 5 of 22 Camper, 200 F.R.D. at 519). close of inquiry” discovery, to “similarly the determine situated,” In the second stage, following the court whether as conducts the required a “more plaintiffs by § stringent are 216(b). in fact Rawls v. Augustine Home Health Care, Inc., 244 F.R.D. 298, 300 (D.Md. 2007). At this later stage, referred to as the decertification stage, the court makes a final decision about the propriety of proceeding as a collective action. Syrja, 756 F.Supp.2d at 686 (quoting Rawls, 244 F.R.D. at 300). Plaintiffs here have moved for conditional certification of a collective action and they have requested court-facilitated notice to potential opt-in plaintiffs. A. Conditional Certification Is Appropriate Because Plaintiffs Have Made a “Modest Factual Showing” that Employees Working under Both Contracts are “Similarly Situated” “Determinations of the appropriateness of conditional collective action certification . . . are left to the court’s discretion.” Id.; see also Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989). The threshold issue in determining whether to exercise such discretion is whether Plaintiffs have demonstrated that situated.” Camper, 216(b)). potential 200 opt-in F.R.D. at plaintiffs 519 are (quoting 29 “similarly U.S.C. § “‘Similarly situated’ [does] not mean ‘identical.’” Bouthner v. Cleveland Constr., Inc., No. RDB–11–0244, 2012 WL 738578, at *4 (D.Md. Mar. 5, 2012) (citing Hipp v. Liberty Nat’l 5 Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 6 of 22 Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir. 2001)). Rather, a group of potential FLSA plaintiffs is “similarly situated” if its members can demonstrate that they were victims of a common policy, scheme, or plan that violated the law. Mancia v. Mayflower Textile Servs. Co., No. CCB–08–0273, 2008 WL 4735344, at *3 (D.Md. Oct. 14, 2008); Quinteros, 532 F.Supp.2d at 772. To satisfy this standard, plaintiffs generally need only make a “relatively modest factual showing” that such a common policy, scheme, or plan exists. Marroquin v. Canales, 236 F.R.D. 257, 259 (D.Md. 2006). Plaintiffs have sought to make such a “modest factual showing” through the declarations of plaintiffs Danielle McCoy, (ECF No. 27-6), Monica Lasandra Jones, (ECF No. 27-7), Connie Jones, (ECF No. 27-8), Tyree Miles, (ECF No. 27-9), Sa’Quan Miller, (ECF No. 27-10), and Jawhann Price, (ECF No. 27-11). Each of these declarations recites much the same facts: that Plaintiffs – regardless of whether the work they did was done pursuant to the Baltimore Contract or the Maryland Contract – performed much the same duties: “picking up, transporting, and dropping off people with disabilities and their aides; affixing wheelchairs to the vehicle; communicating with passengers; refilling the vehicle with gasoline at the end of the workday; and completing required paperwork, such as Driver Manifests and vehicle inspection forms.” (ECF Nos. 27-6 at ¶ 3, 27-7 at ¶ 3, 6 Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 7 of 22 27-8 at ¶ 3, 27-9 at ¶ 3, 27-10 at ¶3, and 27-11 at ¶ 3). Likewise, Plaintiffs under both contracts were referred to as “contractors,” (id.), and underpaid in ways that allegedly both denied them overtime pay, and resulted in minimum wage violations, (id.). Transdev raises certification. because Most Plaintiffs’ operated under several objections significantly, declarations different cannot be “similarly situated.” Transdev concede contracts to suggests that than conditional some others, that drivers Plaintiffs (ECF No. 32, at 6-7). Transdev argues that the different contracts require different “terms and conditions[,]” and that Plaintiffs have “completely failed” to explicate the differences in those terms and conditions. (Id. at 7-8). While the burden is on the Plaintiffs to establish that they are “similarly situated,” that does not mean Plaintiffs need to explain away every prospective class members. establish situated. that they are possible distinction between Again, Plaintiffs are required to similarly situated, not Bouthner, 2012 WL 738578, at *4. identically Plaintiffs have done more than enough to show that their duties were similar and that Transdev’s treatment of them – in terms of the control Transdev exercised over their job performance, Transdev’s classification of them as “contractors” rather than employees, and Transdev’s practices of underpaying 7 them – were also Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 8 of 22 similar. As part of this argument, Transdev notes that Plaintiffs have submitted: a contract between Transdev and Davi (see ECF No. 27-12), which establishes the existence of the [Baltimore Contract]. Notably, this contract clarifies that Davi will invoice Transdev, and that Transdev must pay Davi. Certain Plaintiffs have not submitted any support as to a contract between the MTA Contract between the State of Maryland and Transdev. (ECF No. 32, at 7). Transdev also The meaning of this paragraph is not clear. suggests that Plaintiffs’ submission of a driver manifest, (ECF No. 27-13), is flawed because the manifest is “void of driver names[.]” (ECF No. 32, at 7). not explain “similarly discern. this situated” Transdev manifests manifest why are was drivers. even an fact and would such argues example Plaintiffs’ an that relevant of suggest Plaintiffs argument “[i]t to this the way declarations is is routes not if to these (Id.). were more are difficult unclear matter.” are Transdev does The assigned to enough to than establish that they are similarly situated, and the submission of a singular, unmarked driver manifest as an example does nothing to undermine those declarations. Finally, significantly Transdev misconstrue raises this two legal court’s arguments precedents. which First, Transdev suggests that “[a]lthough courts have held testimony at deposition sufficient to meet plaintiffs’ 8 burden, conclusory Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 9 of 22 affidavits are inadequate.” 200 F.R.D. at 520). (ECF No. 32, at 5) (citing Camper, Transdev seems to derive such a holding from the Camper court’s paraphrasing of a 1999 opinion from the United States District Court for the District of Texas, H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D.Tex.1999). Camper paraphrases that opinion as “denying request for court facilitated situated notice class because members the was only conclusory evidence of affidavits similarly stating the individuals’ beliefs that others had been subjected to similar discrimination[.]” Camper, 200 F.R.D. at 520. Camper explicitly stated that the showing But the court in of “similarly situated” status “by affidavit or otherwise must be made.” at 519 (emphasis added). conclusory. They Id. Plaintiffs’ affidavits are by no means include significant factual detail establishing that the Plaintiffs are similarly situated. Second, Transdev argues that Plaintiffs “must establish coordinated, uniform illegality in plaintiffs’ treatment.” No. 32, at 7) (citing Camper, 200 F.R.D. at 520). the standard. (ECF This is not Rather, at the conditional certification stage, Plaintiffs must make a modest factual showing “that potential plaintiffs were subjected to a common ... scheme.” Camper, 200 F.R.D. at 520 (quoting Jackson v. New York Telephone Co., 163 F.R.D. 429, 432 (S.D.N.Y.1995)). See also Butler v. DirectSAT USA LLC, 876 F. Supp. 2d 560, 566 (D.Md. 2012) (Chasanow, J.) 9 Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 10 of 22 (describing the standard as requiring plaintiffs to make a “relatively modest factual showing’ that . . . a common policy, scheme, or plan [that violated the law] exists”) (quoting Marroquin, 236 F.R.D. at 259); Schilling v. Schmidt Baking Co., No. 16 Civ. 2498, 2018 WL 3520432, at *3 (D.Md. July 20, 2018) (discussing the lenient standard applied by courts at the notice stage). Again, through their declarations, Plaintiffs have made such a showing. Transdev certifies a argues in the alternative collective, the Court that should “if the Court differentiate the drivers under the BCHD Contract from the drivers under the MTA Contract.” Transdev (ECF confusingly plaintiffs have No. and analyzed decision, 32, at states putative class whether the policy, or plan 8). In that “[i]n are making or finding similarly plaintiffs this at 8) (citing Smith v. identified whether T-Mobile that situated, they USA, a have identified multiple decisions, policies, or plans.” 32, argument, Inc., the courts single instead (ECF No. No. CV 05- 5274SABC, 2007 WL 2385131, at *8 (C.D. Cal. Aug. 15, 2007)). The case which Transdev cites in support of this argument did not certify two different collectives; rather it denied plaintiffs’ motion for conditional certification and held that “any claims and defenses must be made individually as to each Plaintiff.” Smith, 2007 WL 2385131, at *8. 10 Transdev’s argument Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 11 of 22 for splitting the collective in two is simply a rehash of the argument for denying certification at all. down to, essentially: “there are two That argument boils different contracts.” Transdev does not suggest what about the existence of the two different contracts would contradict a finding that Plaintiffs under distinct contracts are similarly situated. make the conclusory statement that “there is Rather, they no uniformity amongst the drivers if the collective is certified under both contracts.” (ECF No. 32, at 8). In other words, while Transdev has pointed out that there exists at least one dissimilarity between certain Plaintiffs – that they worked under different contracts – they have in no way explained why that dissimilarity is significant. 1. Tolling Plaintiffs request that “the Court toll the statute of limitations for all members of the Collective from November 18, 2019, the date on which Plaintiffs filed their motion, through the date the Court enters an Order on the motion.” (Id.). Defendant neither objects nor addresses the issue of tolling. Equitable tolling is appropriate when “extraordinary circumstances beyond plaintiffs’ control made it impossible to file the claims on time.” 330 (4th Cir.2000). Harris v. Hutchinson, 209 F.3d 325, “[T]he delay caused by the time required for a court to rule on a motion, such as one for certification 11 Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 12 of 22 of a collective ‘extraordinary action in a circumstance’ FLSA case, justifying equitable tolling doctrine.” may be deemed application of an the McGlone v. Contract Callers, Inc., 867 F. Supp. 2d 438, 445 (S.D.N.Y. 2012) (citing Yahraes v. Restaurant Assocs. Events Corp., 2011 WL 844963, at *1 (E.D.N.Y. Mar. 8, 2011) (collecting cases)). Equitable tolling is thus appropriate in this type of case when ruling on the motion is delayed. Taking into account the current public health crisis, during which many deadlines in civil cases have been extended, and in light of the absence of objection, the request will be granted. 2. List of Potential Plaintiffs Plaintiffs request that the Court order Transdev to produce a computer-readable addresses, last list known of the telephone names, last numbers, known last mailing known email addresses, dates of work, and work locations for all Collective Members, and the last four digits of Social Security numbers for those Collective undeliverable. neither objects Members (ECF to No. nor whose 27-1, Notices at addresses 15-16). this are returned Again, request. as Transdev Plaintiffs’ request will be granted. B. Court–Facilitated Notice to Potential Opt-in Plaintiffs Is Proper Because Plaintiffs Plaintiffs employed have under made both 12 a preliminary contracts showing are that “similarly Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 13 of 22 situated,” notice of this action will be provided to “drivers who worked under the Transdev-Davi Subcontracts at any time between November 18, 2016 and the date on which the Court grants this Motion[.]” (ECF No. 27-1, at 15). Plaintiffs request to send notice by U.S. Mail, e-mail, and Facebook advertising. Transdev objects to much of Plaintiffs’ proposed notice. As to the substance of the notice, Transdev requests four additions: “a statement of Defendant’s position regarding the claims and litigation; language advising potential plaintiffs of their right to join suit with their own attorney; language advising potential plaintiffs of the possibility of having to participate in the discovery process Defendant’s counsel’s contact information.” Transdev notice. also proposes several and at trial; and (ECF No. 32, at 8). changes to the form of First, it argues that e-mail should not be used in the first instance and instead requests that “notice be effectuated by U.S. Mail, with e-mail as a back-up if the mailed notice is returned as undeliverable.” (ECF No. 32, at 9). Transdev notes that a number of courts outside of this district have rejected e-mail as a primary means of notification, but Transdev does not even attempt to argue why e-mail should be rejected as a primary means. (Id.) Second, Transdev argues that Facebook advertising is inappropriate: Transdev objects to the proposed Facebook (social media) posting as unnecessarily 13 Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 14 of 22 redundant. Certain Plaintiffs have made only a speculative showing or argument why a Facebook notice may be necessary in this case to reach the intended persons who fall within any conditionally certified collective. A Facebook posting by a known FLSA plaintiff’s firm has a significant chance of being widely disseminated well beyond any collective the Court may conditionally certify as such postings are picked up by other websites. A social media post allows a plaintiff who has failed to establish a common scheme over a large geographic area to reach a much broader audience. That is not the intent of the court’s development of case law requiring a modest showing of a common scheme before notice is permitted. (Id. at 10). Transdev argues that both Facebook advertising and a stand-alone website notifying potential class members could cause undue reputational harm to Transdev. (Id. at 10-11). Transdev also opposes the sending of “reminder post cards” to class members following initial notification. (Id. at 11-12). Finally, while Transdev does not allude to this change in its briefing, its proposed form of notice shortens the notice period from 90 to 45 days. The district (ECF 32-2, at 3). court has broad discretion regarding the “details” of the notice sent to potential opt-in plaintiffs. Lee v. ABC Carpet & Home, 236 F.R.D. 193, 202 (S.D.N.Y. 2006) (citing Hoffmann–La Roche, 493 U.S. at 171). “The overarching policies of the FLSA’s collective suit provisions require that the proposed concerning the notice provide pendency of ‘accurate the and collective 14 timely action, notice so that Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 15 of 22 [potential plaintiffs] can make informed decisions about whether to participate.’” Whitehorn v. Wolfgang’s Steakhouse, Inc., 767 F.Supp.2d 445, 450 Heartland Brewery, (S.D.N.Y. Inc., 2011) 516 (quoting F.Supp.2d 317, Fasanelli 323 v. (S.D.N.Y. 2007)). Transdev’s proposed substantive changes are, for the most part, semantic complaints. Transdev argues for the inclusion of “a statement of Defendant’s position regarding the claims and litigation.” written (ECF No. 32, at 8). such Plaintiffs’ a statement, allegations” But Plaintiffs have already noting at the that “Transdev outset and denies again, after describing their claims in detail, that “Transdev denies these allegations.” (ECF No. 27-3, at 1,2). Plaintiffs’ proposed notice also states that “Transdev maintains that it did not violate the FLSA, and that it is not liable for the allegations in this case.” (Id. at 2). Plaintiffs’ proposed description of Transdev’s position is more than adequate. Transdev plaintiffs attorney[.]” also of argues their (ECF right No. 32, for to at “language join 8). advising suit with Plaintiffs potential their have own already included such language, explicitly stating that “[i]f you choose to bring your own action against Transdev, you may hire your own attorney and enter into a separate fee arrangement directly with your own attorney.” (ECF No. 27-3, at 4). 15 Transdev’s proposed Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 16 of 22 form of notice makes no changes to the section entitled “Should I get my own lawyer?” By the same token, Transdev wants “language advising potential plaintiffs of the possibility of having to participate in the discovery process and at trial[.]” (ECF No. 32, at 8). Again though, they make no proposed changes to Plaintiffs’ own language which states that “you may be asked to provide documents or information relating to your employment, or otherwise participate in written and/or oral proceedings and/or in a trial of this matter.” at 3). discovery (ECF No. 27-3, No changes to Plaintiffs’ language on either of these subjects will be made. Transdev’s next substantive complaint is that contact information for defense counsel is not included. (ECF No. 32, at inclusion 8). Defendant provides no support for the of defense counsel’s contact information: it does not suggest why it is necessary, nor does it cite a single case where such information is included. ample support for Plaintiffs, by contrast, have provided their position that including Defense counsel’s contact information raises potential problems. (ECF No. 33, at 11) (citing, e.g., Harris v. Vector Mktg. Corp., 716 F.Supp.2d information 835, violation for of 847 (N.D. defense ethical Cal. 2010) counsel rules in and (“[i]ncluding the class inadvertent engendering needless confusion.”)) 16 contact notice inquiries, risks thus In light of these facts, Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 17 of 22 the court sees no reason to mandate inclusion of defense counsel’s contact information. Finally, Transdev’s proposed notice changes the anti- retaliation language in Plaintiffs’ original proposed notice by significantly shortening it. Plaintiffs’ proposed language is as follows: It is a violation of federal law and state law for Transdev or any of its related entities, including Davi, to fire, discipline, or in any manner discriminate or retaliate against you for taking part in this case. If you believe that you have been penalized, discriminated against, or disciplined in any way as a result of your receiving this notification, considering whether to join this lawsuit, or actually joining this lawsuit, please contact Plaintiffs’ lawyers or other lawyers of your choosing right away. (ECF No. 27-3, at 3). is: “Federal law In contrast, Transdev’s proposed language prohibits Transdev or any of its related entities from taking any action against you because you elect to join this action or otherwise exercising your rights under the FLSA.” (ECF No. 32-2, at 9). Again, Transdev provides no support for why such a change might be necessary, nor do they even alert the court to the existence of this change in their response. Again, Plaintiffs’ accurate statement of anti- means providing retaliation law will not be altered. Transdev’s notice, while complaints somewhat regarding better the supported, 17 are of still minor. Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 18 of 22 First, Transdev attempts to change the notice period to 45 days. (ECF No. 32-2, at 8). Again, though, Transdev neither argues for this modification nor brings it to the court’s attention in its response. Even if it had, however, while notice periods may vary, numerous courts around the country have authorized ninetyday opt-in periods for collective actions. See, e.g., Wass v. NPC Int'l, (D.Kan. Inc., Mar. 28, No. 09–2254–JWL, 2011) (denying 2011 the WL 1118774, defendant’s at request *10 to shorten the opt-in period below ninety days); Calderon v. Geico Gen. Ins. Co., No. RWT 10cv1958, 2011 WL 98197, at *2, 8–9 (D.Md. Jan. 12, 2011) (authorizing a ninety-day notice period); Pereira v. Foot Locker, Inc., 261 F.R.D. 60, 68–69 (E.D.Pa. 2009) (finding a ninety-day opt-in period to be reasonable). Next, Transdev takes issue with the use of e-mail as a primary means of notification. This court has previously noted that “communication through email is [now] the norm.” Butler 876 F.Supp.2d at 575 (citing Deloitte & Touche, LLP Overtime Litig., 2012 WL 340114, at *2 (S.D.N.Y. Jan. 17, 2012)). Butler, there is no sound reason here to forgo As in e-mail notification. Along advertising. the In same lines, light of Transdev Plaintiffs’ opposes numerous Facebook declarations alluding to the number of potential plaintiffs who regularly communicate primarily by Facebook, such a means of notification 18 Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 19 of 22 is entirely reasonable. (ECF Nos. 27-6, 27-7, 27-8, 27-9, 27- 10, 27-11); see also, Beltran v. Interexchange, Inc., No. 14 Civ. 03074, 2017 WL 4418684, at *6 (D.Colo. Apr. 28, 2017) (noting that “[r]ecent opinions recognize the efficiency of the internet in communicating to class members” and authorizing plaintiffs to “distribute notice through the requested [social media] channels”); Mendoza v. Mo’s Fisherman Exch., Inc., No. 15 Civ. 1427, 2016 WL 3440007, at *22 (D.Md. June 22, 2016) (“the use of a website and Facebook are reasonable methods to employ” for distribution of notice); Woods v. Vector Mktg. Corp., No. 14 Civ. 0264, 2015 WL 1198593, at *5 (N.D.Cal. Mar. 16, 2015) (“The Court finds that using a Facebook ad is a particularly useful form of ensuring actual notice in this case.”); Mark v. Gawker Media LLC, No. 13 Civ. 4347, 2014 WL 5557489, at *5 (S.D.N.Y Nov. 3, 2014) (“To the extent Plaintiffs propose to use social media to provide potential plaintiffs with notice that mirrors the notice otherwise approved by the Court, that request is granted.”). In opposition, Transdev argues that a Facebook ad may cause Transdev reputational harm and points out that other courts have rejected the use of Facebook notice. debate is essentially over how (ECF No. 32, at 10). Plaintiffs propose to The use Facebook: in the form of a public-facing advertisement, or in the form of individualized messages to prospective plaintiffs. 19 Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 20 of 22 Plaintiffs’ declarations all specifically employees use Facebook “to communicate.” note that other The court will limit the use of Facebook notice to targeted, private communications to potential plaintiffs, rather than a public facing ad. This is in line with the method of Facebook notice allowed in Mark v. Gawker Media LLC: Plaintiffs’ proposed use of Twitter, Linkedln, and Facebook is also overbroad. The Court approved use of social media notice on the understanding that such notice would effectively mirror the more traditional forms of notice being used in this case. This generally means that it expected the notice to contain private, personalized notifications sent to potential plaintiffs whose identities were known and would may not be reachable by other means. To the extent that Plaintiffs’ proposals are shot through with attempts to send publicfacing notices—such as general tweets rather than direct messages, or publicly accessible groups—they cease to parallel the other forms of notice that the Court has already approved. Mark v. Gawker Media LLC, No. 13-CV-4347, 2015 WL 2330079, at *1 (S.D.N.Y. Mar. 5, 2015). In other words, Plaintiffs may use Facebook in such a way as to mirror the traditional forms of notice, rather than using it as an end-run to creating a far broader, more public-facing form of notice. v. 44 Corp., No. 2:19-cv-105-RWS, See also Weinstein 2019 WL 5704137, at *5 (N.D. Ga. Nov. 4, 2019) (“given that Facebook involves many ways to share information – some public – the Court finds that the 20 Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 21 of 22 delivery should be limited to . . . private messages [to] potential plaintiff[s.]”) Transdev raises much the same points regarding a publicfacing website, arguing that “[c]reation of a website for the lawsuit would cause reputational harm to Transdev while being of little value to plaintiffs.” (ECF No. 32, at 8). Plaintiffs reply that such a website “simply functions as a landing page for putative opt-ins who receive the notice through U.S. mail, email, or Facebook,” and points out that any reputational harm that the website could work in and of itself is mitigated by the fact that this lawsuit is already public. (ECF No. 33, at 14). The purpose of this standalone website is to provide a method for opt-in plaintiffs appropriate to do so, to submit consent particularly at forms. this time It when is mail delivery is more cumbersome and difficult. Finally, postcards. Transdev opposes the (ECF No. 32, at 11). sending of reminder In so doing, Transdev cites Montoya v. S.C.C.P. Painting Contractors, Inc., No. 07 Civ. 455, 2008 WL 554114 (D.Md. Feb. 26, 2008), for the proposition that reminder notices have “the potential to unnecessarily ‘stir up litigation.’” and, as a (ECF No. 32-2, at 8). result, a misstatement understanding of reminder notices. mention whatsoever of This is a misquotation reminder this district’s Indeed, Montoya makes no notices. 21 of The Montoya court Case 1:19-cv-02137-DKC Document 43 Filed 05/11/20 Page 22 of 22 alludes generally to the suggestion that courts should “take pains . . . to ‘avoid the ‘stirring up’ of litigation through unwarranted solicitation[.]’” Montoya, 2008 WL 554114, at *4 (citing D'Anna v. M/A-COM, Inc., 903 F.Supp.889 at 894 (D.Md. 1995). Reminder notices are “nothing more than a targeted second contact with those likely to be eligible to join the collective action[.]” Boyd v. SFS Commc'ns, LLC, No. CV PJM 15- 3068, 2017 WL 386539, at *3 (D.Md. Jan. 27, 2017). The court will allow Plaintiffs to send reminder notices as requested. III. Conclusion For the foregoing reasons, the motion for conditional certification and court-authorized notice filed by Plaintiffs will be granted. A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 22
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