Freeman et al v. Smith et al, No. 3:2018cv00372 - Document 170 (D. Or. 2022)
Court Description: OPINION AND ORDER. For these reasons, the Court sustains in part and overrules in part Defendants' objections to Plaintiffs' proposed collective action notice (ECF No. 165 ). Plaintiffs' counsel shall incorporate the approved c hanges discussed herein and obtain approval on the revised notice from Defendants' counsel prior to circulating the notice. If any disputes remain, counsel shall contact the Court to schedule a telephonic conference. Signed on 1/19/2022 by Magistrate Judge Stacie F. Beckerman. (gw)
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Freeman et al v. Smith et al Doc. 170 Case 3:18-cv-00372-SB Document 170 Filed 01/19/22 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON CAROL FERGUSON and LYNDA FREEMAN, on behalf of themselves and, in addition, on behalf of others similarly situated, Case No. 3:18-cv-00372-SB OPINION AND ORDER Plaintiffs, v. MARIA SMITH, an individual; GLADSTONE AUTO, LLC, an Oregon limited liability company; and CARROS, INC., an Oregon corporation, Defendants. BECKERMAN, U.S. Magistrate Judge. This matter comes before the Court on plaintiffs Carol Ferguson and Lynda Freeman’s (together, “Plaintiffs”) motion for approval of their collective action notice (ECF No. 165). Defendants Maria Smith, Gladstone Auto, LLC, and Carros, Inc. (together, “Defendants”) object to several aspects of Plaintiffs’ proposed collective action notice (ECF No. 166). For the reasons discussed below, the Court sustains in part and overrules in part Defendants’ objections. As an initial matter, the Court overrules Defendants’ objections to sending the notice and receiving opt-ins via electronic media in addition to U.S. mail. Email, text, and website PAGE 1 – OPINION AND ORDER Dockets.Justia.com Case 3:18-cv-00372-SB Document 170 Filed 01/19/22 Page 2 of 6 communications increase the likelihood of reaching potential members of the collective action (especially during a global pandemic), and there is no serious risk of multiple entries by a single individual nor phantom entries in light of the relatively small and readily identifiable collective. With respect to Defendants’ objections to the proposed notice language, the Court addressees each objection herein: Number 1 Relevant Language “A federal court authorized this notice. This is not a solicitation from a lawyer.” Disposition Sustained in part. Add Maria Smith “You have to decide whether to join this collective action.” “share in” should be “join” Sustained Sustained Sustained 2 “You will not be penalized in any way for joining this action.” Adding date 3 Several proposed changes 4 First sentence Sustained in part “in the amount of $7.25” Sustained “an extra 50% of their regular wage rate for all hours over 40 in a week” Sustained PAGE 2 – OPINION AND ORDER Sustained Sustained in part N/A Explanation Approved language: “A federal court authorized this notice.” The approved language is accurate. The second sentence should be excluded because the notice is, in fact, a solicitation by Plaintiffs’ counsel to join the collective action and to be represented by Plaintiffs’ counsel. Accuracy Defendants’ proposed language is more clear. Defendants’ proposed language is more clear. Defendants’ proposed language is more accurate. The Court approves the language Plaintiffs suggest in their reply. Plaintiffs agree to the proposed changes, as noted in their reply. Approved language: “Lynda Freeman and Carol Ferguson claim that Defendants paid some paychecks after the regular payday, and further claim that when that happened, Defendants violated federal law.” Defendants’ proposed language is more clear. Defendants’ proposed language more accurately reflects the proper calculation of liquidated damages under the FLSA. Plaintiffs present Case 3:18-cv-00372-SB Number Document 170 Relevant Language Disposition Reference to related state litigation Sustained 5 “that their payments to employees on the next business day after a weekend or holiday did not violate federal law” Overruled 6 “on the next business day . . . was on a weekend or holiday” Overruled “eligible to be” Sustained Return form to the “claims administrator” Website N/A 7 8 9 Eligibility language (including “apply to”) Add “consent to” PAGE 3 – OPINION AND ORDER Overruled Sustained N/A Filed 01/19/22 Page 3 of 6 Explanation no authority for their position that they are entitled to overtime wages and liquidated damages for all hours in the relevant pay period, as opposed to any hours over 40 hours per week. See 29 U.S.C. § 216(b) (“Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of . . . their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.”). If the state court certifies the state claims, the state notice can explain the difference between the state and federal actions. Referencing the state case here may be confusing. Plaintiffs’ proposed language more accurately reflects their claims. Whether Defendants paid employees on the next business day after a weekend or holiday remains a disputed fact. Plaintiffs’ proposed language more accurately reflects their claims. Whether Defendants paid employees on the next business day after a weekend or holiday remains a disputed fact. Defendants’ proposed language is more clear. Plaintiffs agree to the proposed changes. The Court assumes the website language will mirror approved language in the short and long form notices. Defendants’ proposed language is more accurate. Plaintiffs agree to the proposed changes. Case 3:18-cv-00372-SB Document 170 Number 10 Relevant Language Defendants’ names Disposition Overruled 11 Defendants’ names N/A 12 Defendants’ names Overruled “were issued on the next business day when the 5th and 20th of each month fell on a weekend or holiday” Overruled 13 Several proposed changes N/A 14 First sentence Sustained in part 15 “that their payments to employees on the next business day after a weekend or holiday did not violate federal law” Overruled 16 Plaintiffs’ names Sustained 17 Plaintiffs’ names Sustained PAGE 4 – OPINION AND ORDER Filed 01/19/22 Page 4 of 6 Explanation Gladstone Auto, LLC is defined as “Toyota of Gladstone” and Carros, Inc. is defined as “Mazda of Gladstone” earlier in the notice, and this reference is not confusing. Plaintiffs agree to the proposed changes. Gladstone Auto, LLC is defined as “Toyota of Gladstone” and Carros, Inc. is defined as “Mazda of Gladstone” earlier in the notice, and this reference should not be confusing. Plaintiffs’ proposed language more accurately reflects their claims. Whether Defendants paid employees on the next business day after a weekend or holiday remains a disputed fact. Plaintiffs agree to the proposed changes. Approved language: “In the lawsuit, Lynda Freeman and Carol Ferguson claim that Defendants sometimes paid them their paychecks after the regular payday, that this violated federal law, and that they are therefore entitled to money damages.” The proposed additional language is not necessary and does not accurately state Plaintiffs’ claims. Whether Defendants paid employees on the next business day after a weekend or holiday remains a disputed fact. Referring to the plaintiffs by name is more clear and accurate, and the addition of the word “either” adds clarity. Referring to the plaintiffs by name is more clear and accurate. Defendants’ proposed language “where they are determined to have been paid late” is also appropriate. Case 3:18-cv-00372-SB Document 170 Number Relevant Language Liquidated damages Disposition Sustained 18-19 Defendants’ names Overruled 20 “you have to decide” Sustained 21 Proposed deletion N/A 22 Website Overruled 23 Several proposed changes N/A 24 Proposed addition N/A 25 Proposed addition N/A Filed 01/19/22 Page 5 of 6 Explanation Defendants’ proposed language more accurately reflects the proper calculation of liquidated damages under the FLSA. Plaintiffs present no authority for their position that they are entitled to overtime wages and liquidated damages for all hours in the relevant pay period, as opposed to all hours greater than 40 hours per week. See 29 U.S.C. § 216(b) (“Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of . . . their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.”). Gladstone Auto, LLC is defined as “Toyota of Gladstone” and Carros, Inc. is defined as “Mazda of Gladstone” earlier in the notice, and this reference should not be confusing. Defendants’ proposed language is more clear and accurate. Plaintiffs agree to the proposed change. The Court assumes the website language will mirror approved language in the short and long form notices. Plaintiffs agree to the proposed changes. Plaintiffs agree to the proposed changes. Plaintiffs agree to the proposed changes. CONCLUSION For these reasons, the Court sustains in part and overrules in part Defendants’ objections to Plaintiffs’ proposed collective action notice (ECF No. 165). Plaintiffs’ counsel shall incorporate PAGE 5 – OPINION AND ORDER Case 3:18-cv-00372-SB Document 170 Filed 01/19/22 Page 6 of 6 the approved changes discussed herein and obtain approval on the revised notice from Defendants’ counsel prior to circulating the notice. If any disputes remain, counsel shall contact the Court to schedule a telephonic conference. DATED this 19th day of January, 2022. HON. STACIE F. BECKERMAN United States Magistrate Judge PAGE 6 – OPINION AND ORDER
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