The Fund Class Action - Motion for Certification

8/14/2019 The Fund Class Action - Motion for Certification

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PLAINTIFFSMOTION FOR CONDITIONA

CERTIFICATION,NOTICE;AND EQUITABLE TOLLIN

POINTS AND AUTHORITIES -CASE NO. C-06-7776 S

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David A. Lowe (State Bar #178811)

John T. Mullan (State Bar # 221149)

RUDY, EXELROD & ZIEFF, L.L.P.

351 California Street, Suite 700San Francisco, CA 94104

Telephone: (415) 434-9800

Facsimile: (415) 434-0513Email: [email protected]

Email: [email protected]

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

Case No. C-06-7776 SCRICHARD PRENTICE, CHRISTIANMILLER, and TIFFINEYPETHERBRIDGE, on their own behalf andon behalf of classes of those similarlysituated,

Plaintiffs,

vs.

FUND FOR PUBLIC INTERESTRESEARCH, INC.,

Defendants.

/

NOTICE OF MOTION AND MOTION

FOR CONDITIONAL COLLECTIVE

ACTION CERTIFICATION,

HOFFMANN-LA ROCHE NOTICE,

AND EQUITABLE TOLLING;

MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORTTHEREOF

Date: July 13, 2007Time: 10:00 a.m.

Court: 1Judge: Hon. Samuel Conti

Case3:06-cv-07776-SC Document28 Filed05/18/07 Page1 of 23


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NOTICE OF MOTION AND MOTION

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

NOTICE IS HEREBY GIVEN that on July 13, 2007, at 10:00 a.m., or as soon thereafter

as the matter may be heard, in Courtroom 1 of the Northern District of California, San Francisco

Division, located on the 17th Floor of 450 Golden Gate Ave., San Francisco, California,

Plaintiffs Richard Prentice, Christian Miller & Tiffiney Petherbridge (Plaintiffs), on behalf of

themselves and all others similarly situated, will move as follows, pursuant to the Fair Labor

Standards Act (FLSA), 29 U.S.C. 201 et seq., andHoffmann-La Roche Inc. v. Sperling, 493

U.S. 165 (1989):

(1) Conditional certification: That the Court conditionally certify this action as an

FLSA collective action;

(2) Mailing of notice: That the Court authorize the mailing of notice of the pendency

of this action to prospective FLSA collective action members, defined as all past,

present, and future employees of Defendant Fund for Public Interest Research,

Inc. who have been or will be classified as Canvassers or Field Managers

(collectively, Covered Positions), at any time between the earliest date covered

by the first pay date falling after December 19, 2003 and the filing date of the

Order granting this motion (collectively, Covered Employees);

(3) Form of notice: That the Court approve the proposed notice of this action and th

proposed consent to join form, attached to the [Proposed] Order Granting

Plaintiffs Motion for Conditional Collective Action Certification,Hoffmann-La

Roche Notice, and Equitable Tolling Notice as Exhibits A and B respectively;

(4) Contact information: That the Court order Defendant Fund for Public Interest

Research, Inc. to produce to Plaintiffs counsel the names, addresses and

telephone numbers of all Covered Employees; and that such information be

provided in Microsoft Excel format to Plaintiffs counsel 10 days after the date of



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the Courts order granting Plaintiffs Motion for purposes of sending notice;

(5) Time period: That the Court order that all Covered Employees shall have 120

days from the date of the mailing of notice to mail their consents to join to

Plaintiffs counsel, and that Plaintiffs counsel shall have thirty (30) days after tha

date to file written consents to join with the Court (without prejudice to Plaintiffs

right to request that notice, and an opportunity to opt in, be provided at a later date

to individuals who become employed in Covered Positions afterthe filing date of

the Courts order granting Plaintiffs Motion); and,

(6) Equitable tolling: That the Court equitably toll the statute of limitations for all

Covered Employees from the date of the filing of the Complaint (December 19,

2006) through the date the Court sets as the deadline for consents to join to be

filed with the Court.

This motion is supported by Plaintiffs Memorandum of Points and Authorities, the

Declarations of David A. Lowe, John T. Mullan, Richard Prentice, Christian Miller, Tiffiney

Petherbridge, Michael Oehler,Lauren Steely,and Sarah Stein, and exhibits attached thereto; the

[Proposed] Order Granting Plaintiffs Motion for Conditional FLSA Class Certification and

Approval ofHoffmann-La Roche Notice and exhibits attached thereto (Notice and Consent to

Join form) filed herewith; the other records, pleadings, and papers filed in this action; and upon

such other documentary and oral evidence or argument as may be presented to the Court at the

hearing of this motion.



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TABLE OF CONTENTS

I. INTRODUCTION....................................................................................................

II. BACKGROUND......................................................................................................

A. Claims and Background .......................................................................................... 3

1. Fund for Public Interest Research, Inc. ....................................................... 4

2. All Canvassing Staff Have the Same Primary Job Duty ............................. 5

3. Fund Has Treated All Canvassing Staff as a Class for Purposes ofDenying Them Overtime Pay...................................................................... 6

III. DISCUSSION ..........................................................................................................

A. The Court Should Grant Conditional Certification and Order Notice to theClass ........................................................................................................................ 6

1. The Court Has Broad Discretion to Conditionally Certify a Classand Facilitate Notice....................................................................................6

2. The Standard for Granting Conditional Certification and ClassNotice is Very Lenient ................................................................................ 8

3. Notice is Appropriate Because Plaintiffs are Similarly Situated toOther Canvassing Staff..............................................................................10

B. Scope of the Class ................................................................................................. 13

C. The Court Should Order and Approve Class Notice.............................................13

D. Plaintiffs Proposed Form of Notice Should be Approved ................................... 14

E. The Statute of Limitations Should Be Equitably Tolled ....................................... 14

IV. CONCLUSION ......................................................................................................1



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TABLE OF AUTHORITIES

Page(s

Adams v. Inter-Con Security System, Inc., No.

C 06-05428 MHP, 2007 WL. 1089694 (N.D. Cal. Apr. 11, 2007)..................... 7, 8, 13, 14

Agdipa v. Grant Joint Union High Sch. District,

No. Civ. S-06-1365 DFL DAD, 2007 WL. 1106099 (E.D. Cal. Apr. 10, 2007) ................ 8

Aguayo v. Oldenkamp Trucking,

No. CV-F-04-6279 AWI LJO, 2005 WL 2436477 (E.D. Cal. Oct. 3, 2005)...................... 9

Allen v. Marshall Field & Co.,

93 F.R.D. 438 (N.D. Ill. 1982) ............................................................................................ 9

Avila v. Turlock Irrigation Dist.,No. 1:06-CV-00050 OWW SMS,

2006 WL 3201083 (E.D. Cal. Nov. 6, 2006) ...................................................................... 9

Baldozier v. America Family Mutual Insurance Co.,

375 F. Supp. 2d 1089 (D. Colo. 2005) ........................................................................ 14, 15

Ballaris v. Wacker,No. 00-1627, 2001 WL. 1335809 (D. Or. Aug. 24, 2001).................................................. 9

Beauperthuy v. 24 Hour Fitness USA, Inc.,

No. 06-0715 SC, 2007 WL 707475 (N.D. Cal. Mar. 6, 2007) ................................... passim

Bonilla v. Las Vegas Cigar Co.,

61 F. Supp. 2d 1129 (D. Nev. 1999) ................................................................................. 10

Bothell v. Phase Metrics,

299 F.3d 1120 (9th Cir. 2002) ............................................................................................. 4

Brown v. Money Tree Mortgage, Inc.,

222 F.R.D. 676 (D. Kan. 2004) ........................................................................................... 9

Camper v. Home Quality Management, Inc.,200 F.R.D. 516 (D. Md. 2000) ............................................................................................ 9

Chao v. A-One Medical Services,

346 F.3d 908 (9th Cir. 2003).............................................................................................13



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Coan v. Nightingale Home Healthcare, Inc.,

No. 1:05-CV-0101-DFH-TAB,

2005 WL. 1799454 (S.D. Ind. Jun. 29, 2005) ..................................................................... 9

Crawford v. Lexington-Fayette Urban County Government,

No. 06-299-JBC, 2007 WL. 293865 (E.D. Ky. Jan. 26, 2007) ........................................... 9

Edwards v. City of Long Beach,

467 F. Supp. 2d 986 (C.D. Cal. 2006)..................................................................... 1, 2, 7, 9

Gerlach v. Wells Fargo & Co.,

No. C 05-0585 CW, 2006 WL. 824652 (N.D. Cal. Mar. 28, 2006)..................8, 11, 12, 14

Henchy v. City of Absecon,

148 F. Supp. 2d 435 (D.N.J. 2001).................................................................................... 15

Hoffmann-La Roche Inc. v. Sperling,

493 U.S. 165 (1989) ...................................................................................................passim

Kane v. Gage Merchandising Services,138 F. Supp. 2d 212 (D. Mass. 2001)................................................................................ 12

Klem v. County of Santa Clara,No. C-91-20674 RMW (PVT),

1996 WL 438801 (N.D. Cal. Apr. 1, 1996).................................................................13, 14

Morden v. T-Mobile USA, Inc., No.

C05-2112R S. & M.,

2006 U.S. Dist. LEXIS 68696 (W.D. Wash. Sep. 12, 2006) ............................. 1, 9, 10, 12

Owens v. Bethlehem Mines Corp.,

630 F. Supp. 309 (S.D. W. Va. 1986) ................................................................... 14, 15, 16

Partlow v. Jewish Orphans' Home of Southern Cal., Inc.,

645 F.2d 757 (9th Cir. 1981)....................................................................................... 14, 15

Randle v. City of New Albany,

No. 3:05CV74, 2006 WL 2085387 (N.D. Miss. Jul. 25, 2006) ........................................ 15

Reab v. Electronic Arts, Inc.,214 F.R.D. 623 (D. Colo. 2002) .......................................................................................... 9

Romero v. Producers Dairy Foods, Inc.,

235 F.R.D. 474 (E.D. Cal. 2006)......................................................................................... 9



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Shaffer v. Farm Fresh, Inc.,

966 F.2d 142 (4th Cir. 1992)............................................................................................... 1

Stanfield v. First NLC Finance Services, LLC,No. C 06-3892 SBA, 2006 WL 3190527 (N.D. Cal. Nov. 1, 2006) ................................... 9

Thiessen v. General Electric Capital Corp.,267 F.3d 1095 (10th Cir. 2001)................................................................................. 7, 8, 10

White v. MPW Industrial Services, Inc.,236 F.R.D. 363 (E.D. Tenn. 2006) ...................................................................................... 9

Williams v. Sprint/United Management Co.,222 F.R.D. 483 (D. Kan. 2004) ........................................................................................... 9

Zhao v. Benihana,

No. 01 Civ. 1297 (KMW), 2001 WL. 845000 (S.D.N.Y. July 5, 2001)............................. 9

STATUTES, RULES AND REGULATIONS

29 U.S.C. 201 et seq ...........................................................................................................passim

29 U.S.C. 203(k)........................................................................................................................11

29 U.S.C. 207 ............................................................................................................................ 129 U.S.C. 216(b).......................................................................................................... 1, 7, 12, 16

29 U.S.C. 255 ............................................................................................................................ 229 U.S.C. 255(a).................................................................................................................. 12, 13

29 U.S.C. 256(b).................................................................................................................... 2, 14



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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

This is a proposed class action for unpaid overtime wages and liquidated damages under

the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq. Plaintiffs Richard Prentice,

Christian Miller & Tiffiney Petherbridge (Named Plaintiffs) seek to represent a class of

Canvassers and Field Managers (Canvassing Staff) employed by Defendant the Fund for Publi

Interest Research, Inc. (Fund), all of whom have been categorically misclassified by Fund as

exempt from overtime pay and denied overtime wages on that basis.

This motion is brought to protect the interests of the potential class members by providing

them with notice of this FLSA case and equitably tolling their FLSA claims for unpaid overtime

(which have not been not tolled simply by the filing of the complaint). Absent such notice and

tolling, potential class members FLSA rights will be prejudiced, the FLSAs remedial purposes

frustrated, and judicial economies lost.

There is no other way to protect these important interests at this time: Plaintiffs do not

know potential class members identities, and Defendant has refused Plaintiffs requests to

provide this information or stipulate to tolling the statute of limitations on the potential class

members FLSA claims. As discussed below, the standard for granting the instant motion at an

early stage of the litigation is lenient and easily satisfied by Plaintiffs.

The FLSA mandates overtime pay for employees and expressly authorizes class (or

collective) actions to vindicate this right where the employees at issue are similarly situated.

29 U.S.C. 207, 216(b). Because class members must affirmatively opt in to a FLSA

collective action, the Supreme Court has held that named plaintiffs in FLSA class actions may

have a court-approved notice sent to all similarly situated individuals with potential claims

informing them of the lawsuit and providing them with an opportunity to opt in. 1Hoffmann-La

1 Hoffmann-La Roche was an Age Discrimination in Employment Act case but applieequally to FLSA actions. See, e.g., Shaffer v. Farm Fresh, Inc., 966 F.2d 142, 147 n. 5 (4th Cir.1992);Edwards v. City of Long Beach, 467 F. Supp.2d 986, 989-90 (C.D. Cal. 2006);Morden v. T-

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Roche Inc. v. Sperling, 493 U.S. 165, 172-74 (1989). This notice procedure recognizes the

congressional policy favoring FLSA class actions, the benefits to the judicial system of such

actions, the need for employees to receive accurate and timely notice, and the benefits of early

judicial intervention and management. Hoffmann-La Roche Inc., 493 U.S. at 169-73. Moreover,

notice is critical to protect employees FLSA rights because, absent tolling, the statute of

limitations will continue to run on their claims until they opt in. 29 U.S.C. 255, 256(b).

FollowingHoffmann-La Roche, courts make an initial determination whether there are

similarly situated employees so as to warrant conditional class certification and class notice.

The standard for this determination is lenient and typically results in conditional

certification. Edwards v. City of Long Beach, 467 F. Supp.2d 986, 989-90 (C.D. Cal. 2006)

(internal quotes omitted);Beauperthuy v. 24 Hour Fitness USA, Inc., No. 06-0715 SC, 2007 WL

707475, *5 (N.D. Cal. Mar. 6, 2007) (plaintiff bears very light burden). This lenient standard

is particularly apt here, where class members are losing claims to the statute of limitations on an

ongoing basis under the status quo.

Plaintiffs easily meet their very light burden here. The central issue in the case is

whether the primary job duty of Canvassing Staff brings them within any of the narrow

exemptions from the FLSAs overtime pay provisions, discussed below. Plaintiffs allegations,

declarations and pre-discovery evidence show that all Canvassing Staff have had the same

primary job duty of collecting signatures and soliciting donations for third-party non-profit and

advocacy groups. Also, Fund classifies all Canvassing Staff as exempt on a categorical, class-

wide basis, and denies all Canvassing Staff overtime pay under the same common plan. In its

Answer, Fund reaffirms the treatment of potential class members as being similarly situated. See

Answer, p.9 (affirmative defense that all potential class members are exempt). Indeed, Fund

Mobile USA, Inc., No. C05-2112RSM, 2006 U.S. Dist. Lexis 68696, *1 n.1 (W.D. Wash. Sep. 12,2006).



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alleges that its categorical classification of Canvassing Staff as exempt has been reasonable and

in good faith, id. p.10, further reaffirming that these employees are similarly situated for

purposes of the exemption issue. Based on this threshold, pre-discovery showing that there are

similarly situated employees, the Court should order conditional certification and class notice.

In addition, the Court should grant Plaintiffs request for equitable tolling of the statute of

limitations. Potential class members, through no fault of their own, and due to Defendants

refusal to agree to notice, have been prevented from learning of this action and/or the need to

affirmatively opt-in in order to be included.

Plaintiffs sought to avoid the need for this motion by asking Defendant for the names and

addresses of potential class members so Plaintiffs could notify them about the action and their

ability to opt in by filing consents to sue. Defendant denied the request. Declaration of David A

Lowe, (Lowe Dec.), 5, 6. As an alternative means to avoid the motion, Plaintiffs asked

Defendant to stipulate to conditional certification and sending of notice and to toll the statute of

limitations. Defendant rejected these requests as well. Id. at 3, 6. Defendants refusal to

identify the potential class members, stipulate to the sending of notice or toll the statute of

limitations has left Plaintiffs with no alternative but to file the instant motion.

II. BACKGROUND

A. Claims and BackgroundThe Named Plaintiffs were employed by Defendant Fund for Public Interest Research as

Canvassing Staff for some period of time within the FLSA statutory period.2 Declaration of

Christian Miller (Miller Dec.), 2; Declaration of Richard Prentice (Prentice Dec.), 2;

Declaration of Tiffiney Petherbridge (Petherbridge Dec.), 2. Plaintiffs allege that, under a

common plan and practice, Fund has misclassified Plaintiffs and thousands of other Canvassing

Staff who have performed substantially the same work as categorically exempt from the

2 The statute of limitations is three years or two years, depending on whether theemployers violations are willful. Id. 255(a).



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FLSAs overtime-pay requirements, and, on that basis, has failed to pay them overtime wages fo

their overtime hours. Plaintiffs Class and Collective Action Complaint (Complaint), 1-3,

14, 17, 21-23. Plaintiffs seeks to recover unpaid overtime wages and liquidated damages on thei

own behalf, and also on behalf of a class of all other Fund Canvassers and Field Managers (and

employees holding predecessor or successor job titles for the same positions).3

Defendant alleges as affirmative defenses that Plaintiffs are exempt under the outside

sales exemption (Answer, p. 12), the commissioned employee exemption (Answer, p. 13)

and/or the administrative and/or executive exemptions (Answer, p. 13). However, regardless

of which exemption Defendant attempts to prove in this case,4

Plaintiffs and all Canvassing Staff

will be similarly situated for purposes of the exemption inquiry due to the fundamental

equivalence of their job duties, and the common types of constraints and policies that delimit

their sphere of responsibility and control how they perform their work.

1. Fund for Public Interest Research, Inc.Defendant Fund for Public Interest Research, Inc. is a nationwide organization which

contracts to perform canvassing work on behalf of other organizations. Declaration of John T.

Mullan (Mullan Dec.), 2 & Ex. A. It maintains offices in 38 cities nationwide, including an

office in San Francisco, California. Mullan Dec., 3, Ex. B. Utilizing Canvassing Staff,

Defendant Fund collects signatures and donations on behalf of third-party advocacy groups. Id.

at 4 & Ex. C; Prentice Dec., 5; Miller Dec., 5; Petherbridge Dec., 5; Declaration of Michael

Oehler (Oehler Dec.), 5; Declaration of Robert Rose (Rose Dec.), 5; Declaration of Lauren

Steely (Steely Dec.), 5; Declaration of Sarah Stein (Stein Dec.), 5.

3 Plaintiffs have also filed California and New York state claims for unpaid wages

and related wage and hour law violations, which claims are not at issue in this motion.4 FLSA exemptions are affirmative defenses which it is the employers burden to

prove. They are narrowly construed against employers and are to be withheld except as topersons plainly and unmistakenly within their terms and spirit. Bothell v. Phase Metrics, 299F.3d 1120, 1124-25 (9th Cir. 2002), internal quotes and alterations omitted.



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2. All Canvassing Staff Have the Same Primary Job DutyThough Fund Canvassing Staff may canvass for different third-party advocacy groups,

and may do so in different locations throughout the country, they all have the same, common

primary job duty: that is, to canvass door to door or in public locations soliciting donations and

collecting signatures for third-party non-profit and advocacy organizations. Prentice Dec., 5;

Miller Dec., 5; Petherbridge Dec., 5; Oehler Dec., 5; Rose Dec., 5; Steely Dec., 5; Stein

Dec., 5. This remains true regardless of the location in which the Canvassing Staff are

working, and regardless of whether they held the title Canvasser or Field Manager. Prentice

Dec., 8, 9; Miller Dec., 8, 9; Petherbridge Dec., 8, 9; Oehler Dec., 8; Rose Dec., 8;

Steely Dec., 8; Stein Dec., 8. This point is further illustrated by the Funds canvass jobs web

site, which states --- without regard to location or third-party advocacy group at issue --- that the

heart of the job is canvassing and involves goingdoor-to-door, or into public places to

canvass. Mullan Dec., 4 & Ex. C.5

Further, all Canvassing Staff have been required to adhere to the same types of policies,

procedures and training regarding how to canvass door to door or in public locations. Prentice

Dec., 7, 8; Miller Dec., 7, 8; Petherbridge Dec., 7, 8; Oehler Dec., 7, 8; Rose Dec., 7,

8; Steely Dec., 7, 8; Stein Dec., 7, 8. For instance, all Canvassing Staff have been required

to memorize a solicitation script and recite this script verbatim when soliciting door to door or

on street corners. Prentice Dec., 7; Miller Dec., 7; Petherbridge Dec., 7; Oehler Dec., 7;

Rose Dec., 7; Steely Dec., 7; Stein Dec., 7. As another example, all Canvassing Staff have

been subject to the common requirement of recording their canvassing results at the end of each

day. Prentice Dec., 5; Miller Dec., 5; Petherbridge Dec., 5; Oehler Dec., 5; Rose Dec., 5;

Steely Dec., 5; Stein Dec., 5.

5Of course Plaintiffs disagree with how the job postings characterize Canvassing

Staff job duties. The point here is simply that the functions and responsibilities of all CanvassingStaff are essentially the same, regardless of how they are described.



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3. Fund Has Treated All Canvassing Staff as a Class for Purposes ofDenying Them Overtime Pay

Fund has classified all Canvassing Staff as a category as exempt from overtime pay.

Complaint, 1, 3, 21-23; Answer p.9; Prentice Dec., 4; Miller Dec., 4; Petherbridge Dec., 4;

Oehler Dec., 4; Rose Dec., 4; Steely Dec., 4; Stein Dec., 4. Fund has made a decision and

implemented a common policy to treat all of its Canvassing Staff as categorically exempt from

the FLSAs overtime pay requirements. Complaint, 1, 3, 21-23; Answer p.9; Prentice Dec., 4

Miller Dec., 4; Petherbridge Dec., 4; Oehler Dec., 4; Rose Dec., 4; Steely Dec., 4; Stein

Dec., 4.

III. DISCUSSION

A. The Court Should Grant Conditional Certification and Order Notice to theClass

It is both critical and proper that this action be conditionally certified as an FLSA

collective action and that potential collective action members be provided with notice of the

action and an opportunity to opt in. Notice is critical because potential collective action member

are unaware of the action and/or the opt in procedure, and as a result are losing claims for unpaid

overtime wages to the statute of limitations on an ongoing basis. Notice is proper because, at thi

early, pre-discovery stage of the case, the initial pleadings, declarations and other pre-discovery

evidence show that Plaintiffs and all Fund Canvassing Staff are similarly situated employees.

That is, they all share the same core job duty; they have all been subject to Funds common

policy and practice of classifying all Canvassing Staff as a category as exempt on a class-wide

basis; and they all have been denied overtime pay as part of this common plan and practice.

1. The Court Has Broad Discretion to Conditionally Certify a Class andFacilitate Notice

The FLSA expressly provides that an action to recover unpaid wages and liquidated

damages may be maintained by any one or more employees for and in behalf of himself or

themselves and other employees similarly situated. 29 U.S.C. 216(b). Unlike in a Rule 23



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opt out class action, employees in an FLSA class action must affirmatively opt in by filing a

written consent with the court. Id. Until they actually opt in, class members remain subject to

the running of the statute of limitations. Id. 255, 256(b). Potential class members who do not

opt in are not bound by the judgment. See, e.g.,Adams v. Inter-Con Security Sys., Inc., No. C 06

05428 MHP, 2007 WL 1089694, *2 (N.D. Cal. Apr. 11, 2007).

Where an employee maintains an action on behalf other similarly situated employees, the

action is regarded as an FLSA class or collective action. See, e.g., Thiessen v. General Elec.

Capital Corp., 267 F.3d 1095, 1102 & n.3 (10th Cir. 2001);Edwards v. City of Long Beach, 467

F. Supp.2d 986, 989 (C.D. Cal. 2006). Although the FLSA does not require certification for

collective actions, certification in a 216(b) collective action is an effective case management

tool, allowing the court to control the notice procedure, the definition of the class, the cut-off dat

for opting in, and the orderly joinder of the parties. Edwards, 467 F. Supp.2d at 989-90 (citing

Hoffmann-La Roche v. Sperling, 493 U.S. 165, 170-72 (1989)). To this end, the Supreme Court

has recognized the discretion of district courts to facilitate the process by which potential

plaintiffs are notified of FLSA collective actions into which they may be able to opt.

Beauperthuy v. 24 Hour Fitness USA, Inc., No. 06-0715 SC, 2007 WL 707475, at *5 (N.D. Cal.

Mar. 6, 2007) (citingHoffmann-La Roche, 493 U.S. at 486)).

InHoffmann-La Roche, the Supreme Court identified the numerous considerations that

underlie and support sending notice to the class: the congressional policy that employees should

be able to proceed collectively in order to lower individual costs to vindicate rights and benefit

the judicial system by efficient resolution in one proceeding of common issues of law and fact;

the need for employees to receive accurate and timely notice of the pendency of the action in

order to achieve the intended benefits of collective action; the wisdom and necessity for early

judicial intervention in managing the litigation, ascertaining the contours of the action at the

outset, and regulating the notice and opt in process. 493 U.S. at 170-72. The Supreme Court

noted the deliberateness of congress decision to provide for collective actions, and emphasized

that, [t]he broad remedial goal of the statute should be enforced to the full extent of its terms.



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Id. at 173.

In cases for unpaid wages, the additional factor that heavily favors conditional

certification and class notice is that the statute of limitations is running on each employees

claims until he or she opts in. The running of the statute of limitations prejudices potential class

members by continually cutting off periods of past employment for which they might otherwise

be able to recover unpaid wages. See, e.g.,Beauperthuy, 2007 WL 707475 at *7.6

2. The Standard for Granting Conditional Certification and Class Noticeis Very Lenient

AfterHoffmann-La Roche, courts, including this Court, have utilized a two-stage process

for deciding whether to certify FLSA class actions. At the first stage the court determines

whether to conditionally certify a class and notify potential class members about how they can

preserve their rights by opting in. At the second stage, typically on the basis of a motion to

decertify filed after the close of discovery, the court determines whether the case should proceed

to trial on a class basis. See, e.g., Thiessen, 267 F.3d at 1106;Beauperthuy, 2007 WL 707475 at

*5. Only the first stage is at issue here.

At the notice stage, the court applies a relaxed standard to determine whether the

Plaintiffs allegations and any declarations support a preliminary finding that similarly situated

employees exist who might want to opt in. The standard for certification at this stage is a

lenient one that typically results in certification. Gerlach v. Wells Fargo & Co., No. C 05-0585

CW,2006 WL 824652, *2 (N.D. Cal. Mar. 28, 2006);Adams, 2007 WL 1089694 at *4;Agdipa

v. Grant Joint Union High Sch. Dist., No. Civ. S-06-1365 DFL DAD, 2007 WL 1106099, *1

(E.D. Cal. Apr. 10, 2007);Avila v. Turlock Irrigation Dist., No. 1:06-CV-00050 OWW SMS,

6

As with other wages, overtime wages are generally due to be paid on a periodicbasis. A separate FLSA violation occurs each time the employer does not pay overtime wagesfor a particular period on the date they are due. If the due date falls outside the statutory period,the employee cannot recover unpaid wages for the period of employment covered by that duedate. Thus, as long as the statute is running, a given employee will continue to lose successiveperiods of employment to the statute of limitations.



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2006 WL 3201083, *3 (E.D. Cal. Nov. 6, 2006); Stanfield v. First NLC Fin. Servs., LLC, No. C

06-3892 SBA, 2006 WL 3190527, *2 (N.D. Cal. Nov. 1, 2006); Edwards, 467 F. Supp.2d at 990

Morden v. T-Mobile USA, Inc., No. C05-2112RSM, 2006 WL 2620320, *2 (W.D. Wash. Sep. 12

2006);Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 482 (E.D. Cal. 2006); see

Beauperthuy,2007 WL 707475, at *5 (movant bears a very light burden).

Numerous courts have emphasized the minimal showing required at this stage, typically

consisting of only the allegations of the complaint and a small number of declarations, where

available. See, e.g.,Romero, 235 F.R.D. at 482-83 (allegations and two declarations);Brown v.

Money Tree Mortgage, Inc., 222 F.R.D. 676, 680-81 (D. Kan. 2004) (same); Williams v.

Sprint/United Mgmt. Co., 222 F.R.D. 483, 487 (D. Kan. 2004) (allegations in complaint were

more than sufficient to support provisional certification);Reab v. Electronic Arts, Inc., 214

F.R.D. 623, 628 (D. Colo. 2002) (allegations in complaint);Allen v. Marshall Field & Co., 93

F.R.D. 438, 442-45 (N.D. Ill. 1982) (allegations in complaint);Ballaris v. Wacker, No. 00-1627,

2001 WL 1335809, *2 (D. Or. Aug. 24, 2001) (two affidavits); Camper v. Home Quality Mgmt,

Inc., 200 F.R.D. 516, 519-21 (D. Md. 2000) (two depositions and two declarations); Zhao v.

Benihana, No. 01 Civ. 1297 (KMW), 2001 WL 845000, **2-3 (S.D.N.Y. July 5, 2001) (one

affidavit based on plaintiffs best knowledge);Aguayo v. Oldenkamp Trucking, No. CV-F-04-

6279 AWI LJO, 2005 WL 2436477, at *4 (E.D. Cal. Oct. 3, 2005) (ONeill, M.J.) (allegations in

complaint and named plaintiffs declaration); see also Beauperthuy,2007 WL 707475 at *7

(eleven declarations);Morden, 2006 WL 2620320, *3 (evidence of comparable job descriptions

and uniform exempt classification).7

///

7

In addition, the Court may consider evidence that would be inadmissible at trial.Beauperthuy,2007 WL 707475 at *7 n.5; Crawford v. Lexington-Fayette Urban County Govt.,No. 06-299-JBC, 2007 WL 293865, **1-2 (E.D. Ky. Jan. 26, 2007); White v. MPW Indus. Servs.Inc., 236 F.R.D. 363, 367-68 (E.D. Tenn. 2006); Coan v. Nightingale Home Healthcare, Inc., No1:05-CV-0101-DFH-TAB, 2005 WL 1799454, *1 n.1 (S.D. Ind. Jun. 29, 2005); see also Aguayo2005 WL 2436477 at *4.



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The lenient standard is particularly fitting here, where no discovery has been completed.

See, e.g., Thiessen, 267 F.3d at 1102 (where there has been no discovery, notice-stage

certification may be granted based on nothing more than substantial allegations that the putative

class members were together the victims of a single decision, policy, or plan) (internal

quotations and citations omitted);Bonilla v. Las Vegas Cigar Co., 61 F. Supp.2d 1129, 1139 n.6

(D. Nev. 1999) (requiring only some factual nexus which binds the named plaintiffs and the

potential class members together as victims of a particular alleged [policy or practice] (citations

omitted)); see alsoMorden, 2006 WL 2620320 at *3 (rejecting defendants reliance on

heightened standard applicable in cases where employees have been able to conduct substantial

discovery).

3. Notice is Appropriate Because Plaintiffs are Similarly Situated toOther Canvassing Staff

Notice-stage certification is warranted here because Plaintiffs allegations and evidence

are more than sufficient to satisfy the lenient first-stage similarly situated standard.

Plaintiffs allegations, declarations and documentary evidence show that they and all

other Canvassing Staff have all had the same primary job duty of collecting signatures and

soliciting donations for third-party advocacy groups. Thus, Plaintiffs have made the requisite

threshold showing to support the conditional determination that all Canvassing Staff are

similarly situated with respect to what is expected to be the central issue in the case: whether

their job duties bring them within one of the narrow exemptions from the FLSAs overtime pay

requirements.8

This is true regardless of which FLSA exemption Fund might try to prove. For example,

Plaintiffs have made a threshold showing that all Canvassing Staff are similarly situated with

respect to the duties relevant to the outside sales exemption, which requires that an employee

8 Of course, the merits of any exemption defense Defendant might plead are not tobe adjudicated on a certification motion. See, e.g., Thiessen, 1106-07.



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be engaged in making actual sales: See generally 29 U.S.C. 203(k); id. 213(a)(1); 29 C.F.R.

541.500. Plaintiffs contend that Canvassing Staffs uniformly-shared function of collecting

signatures and soliciting donations for various third party advocacy groups does notconstitute

making sales within the meaning of the exemption. But what matters for purposes of this

Motion is Plaintiffs threshold showing that all Canvassing Staff are similarly situated for

purposes of resolving this issue.

As another example, Plaintiffs have made a threshold showing that all potential class

members are similarly situated with respect to the administrative exemption, which requires

among other things that an employees primary duty be the performance of work directly related

to the management or general business operations of the employer, and that the employees

primary duty requires him or her to exercise discretion or independent judgment to make

significant business decisions. See generally 29 U.S.C. 213(a)(1); 29 C.F.R. 541.200-

541.202. Plaintiffs contend that the Canvassing Staffs uniform, core duty to collect signatures

and solicit donations for various third party advocacy groups using pre-approved scripts provided

by the Fund does notsatisfy eitherpart of this standard. But again, what matters for this Motion

is Plaintiffs notice-stage showing that all Canvassing Staff are similarly situated for

administrative exemption analysis.

In addition, Plaintiffs evidence and allegations establish that all Canvassing Staff are

similarly situated with regard to Funds common policy and practice of classifying all

Canvassing Staff as exempt from the FLSA on a categorical basis, and denying them overtime

pay on that basis. See Gerlach, 2006 WL 824652, at **6-7 (conditional certification appropriate

where putative class members were together the victims of a single decision, policy or plan.);

Complaint, 1, 3, 21-23; Answer p.9; Prentice Dec., 4; Miller Dec., 4; Petherbridge Dec., 4;

Oehler Dec., 4; Rose Dec., 4; Steely Dec., 4; Stein Dec., 4. This common policy and

practice not only attests to the essential similarity of all Canvassing Staffs job duties for

purposes of the FLSA exemption analysis, but it also shows that all Canvassing Staff appear to be

similarly situated with respect to the cause of their failure to receive overtime pay, and with



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respect to the issues of whether Funds FLSA violations have been willful and/or not committed

in good faith. See 29 U.S.C. 255(a) (FLSA statute of limitations extended to three years for

willful violations); id. 260 (if employers violations were in good faith and based on objectively

reasonable grounds, court may reduce the amount of, or not award, the liquidated damages

required by 29 U.S.C. 216(b)).

In Gerlach v. Wells Fargo, Judge Wilken noted that, Plaintiffs meet their burden of

showing that all [potential class members] are similarly situated with respect to their FLSA

claim: all [potential class members] share a job description, were uniformly classified as exempt

from overtime pay by Defendants and perform similar job duties. Gerlach, 2006 WL 824652 at

**8-9; see alsoBeauperthuy, 2007 WL 707475 at **6-7 (conditionally certifying class of

employees in misclassification case based on evidence and allegations regarding employees job

duties and uniform designation of employees as exempt under company policy); Morden, 2006

U.S. Dist. Lexis 68696 at **7-10 (conditionally certifying class of employees in misclassification

case based on minimal evidence of comparable job descriptions and uniform classification;

defendants arguments and extensive evidence regarding purported differences between class

members were more appropriate for a second-stage decertification determination); Kane v.

Gage Merchandising Servs., 138 F. Supp. 2d 212, 214-15 (D. Mass. 2001) (notice stage

certification appropriate where there was initial showing that employer classified group of

employees as exempt and did not pay them overtime). As described above, Plaintiffs

declarations and other evidence demonstrates that the proposed class members all performed

similar job duties, whether they held the title of Canvasser or Field Manager, and were all

uniformly classified by Defendant as exempt from overtime.

B. Scope of the ClassFor purposes of conditional certification and notice, the class should be comprised ofall

past, present, and future employees of Fund who have held the job title/job classification of

Canvasser, Field Manager, or any predecessor or successor job title/classification for the



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same positions (collectively, Covered Positions).9 Notice should be sent to all people

employed in Covered Positions on or after the earliest date covered by the first Fund pay date tha

falls within the three-year statutory period. For present purposes, Plaintiffs propose that the date

by which a person must have been employed in a Covered Position in order to be included in the

notice should be the date the Court files an order requiring Defendant to produce potential class

members names and contact information.

The three-year statute of limitations for willful violations, 29 U.S.C. 255(a), is properly

applied at this stage because Plaintiffs allege that Funds FLSA violations have been willful

(Complaint, 18, 22-26) and may succeed in proving willfulness at trial. See, e.g.,Adams, 2007

WL 1089694 at *10 (applying three-year statute where willful violations alleged);Beauperthuy,

2007 WL 707475, at *7 (same); Klem v. County of Santa Clara, No. C-91-20674 RMW (PVT),

1996 WL 438801, *1, *4 & n.9, *7 (N.D. Cal. Apr. 1, 1996) (same); see generallyChao v. A-On

Med. Servs.,346 F.3d 908, 918 (9th Cir. 2003) (willfulness standard is whether employer knew

or showed reckless disregard for the matter of whether its conduct was prohibited).

C. The Court Should Order and Approve Class NoticeThe Court should order Fund to produce potential class members names and contact

information to Plaintiffs counsel and approve the mailing of notice to all potential class

members. This is well-accepted procedure and is integral to the collective action procedure. See

e.g.,Hoffmann-La Roche, 493 U.S. at 168-70;Adams, 2007 WL 1089694 at *7; Gerlach, 2006

WL 824652 at *7; Klem, 1996 WL 438801 at *7.

///

///

9Plaintiffs reserve the right to amend the Complaint and seek additional notice and

an opportunity to opt in be provided at a later date to individuals who become employed inCovered Positions afterthe filing date of the Courts order granting Plaintiffs Motion and/or toindividuals who, it may be later determined, are indirectly employed or jointly employed byFund.



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D. Plaintiffs Proposed Form of Notice Should be ApprovedPlaintiffs propose a neutral and straightforward form of notice, which will inform

prospective Plaintiffs of their statutory opt-in rights. See [Proposed] Order, Ex. A. The proposed

notice explains the nature of the action and identifies Plaintiffs allegations. It makes clear that

the Court has notadjudicated the merits of the dispute, and that Fund denies any liability or

wrongdoing. The notice also identifies a website individuals can visit to obtain further

information. The notice provides Plaintiffs counsels contact information, so that potential class

members can speak with the attorneys who will presumptively represent them if they choose to

opt in.

Finally, the notice correctly summarizes potential class members options. It makes clear

that individuals are free to select their own counsel. It also warns that individuals who opt in wil

be bound by the resulting judgment, whether favorable or unfavorable. The notice is to be

accompanied by substantially the same consent to join form that Plaintiffs have already used to

communicate their consent to sue in this lawsuit. See [Proposed] Order, Ex. B.

E. The Statute of Limitations Should Be Equitably TolledUnder the FLSA, the statute of limitations for each individual party plaintiff is not tolled

until he or she files a written consent to join the action, or until the court issues an equitable

tolling order. 29 U.S.C. 256(b); Partlow v. Jewish Orphans Home of Southern Cal., Inc., 645

F.2d 757, 760 (9th Cir. 1981), abrogated on other grounds byHoffmann-La Roche, 495 U.S. 165

(1989); Owens v. Bethlehem Mines Corp., 630 F. Supp. 309, 312-13 (S.D. W. Va. 1986).

Equitable tolling is appropriate under the FLSA where similarly-situated plaintiffs,

through no fault of their own, have been unable to join the lawsuit. Baldozier v. Am. Family Mut

Ins. Co., 375 F. Supp. 2d 1089, 1093 (D. Colo. 2005) (granting tolling to the date of the filing of

the original complaint where the defendant had refused to provide contact information for

former employees); Partlow, 645 F.2d at 760 (granting equitable tolling where original consent

found invalid based on improper attorney solicitation of plaintiffs); Owens, 630 F. Supp. at 312-



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13 (equitable tolling where court did not rule on plaintiffs motion for collective action

certification for over a year, during which time other plaintiffs were effectively precluded from

filing written consents to join).

In this case, Plaintiffs counsel requested Fund to provide contact information for

potential FLSA collective action members, expressly for the purpose of providing notice to

similarly-situated employees of the lawsuit and giving them an opportunity to opt in. Lowe Dec

5. Plaintiffs counsel also requested a tolling agreement from Fund that would eliminate the

need for Plaintiffs to rush to the Court seeking conditional certification and equitable tolling. Id.

at Ex. A at p. 2. Defendant refused both requests. Id. at 6.

In addition, Funds categorical exempt classification practice has had the expected and

foreseeable effect of misleading potential class members as to facts and legal standards that migh

have made them question their non-receipt of overtime wages and investigate their rights by

concealing that it is their employerwho has determined to treat them as exempt and not pay them

overtime, possibly wrongly. Finally, the complaint has obviously put Defendant on notice not

only of Plaintiffs claims, but also the claims of all potential class members.

Under these circumstances, the equities weigh in favor of equitably tolling the claims of

the FLSA collective class members. SeeBaldozier, 375 F. Supp. 2d at 1093 (tolling ordered as

of the date of complaint where defendant had refused to provide contact information for former

employees);Henchy v. City of Absecon, 148 F. Supp.2d 435, 438-39 (D. N.J. 2001) (employers

summary judgment motion regarding equitable tolling denied where employee alleged that

employer assured him that overtime compensation provided for by employment agreement was

proper); cf.Randle v. City of New Albany, No. 3:05CV74, 2006 WL 2085387, **3-4 (N.D. Miss.

Jul. 25, 2006) (disputed issues of fact regarding whether employer knowingly misled employees

about its overtime obligations precluded summary judgment on equitable tolling/estoppel claim);

Owens, 630 F. Supp. at 312-13 (tolling to offset delay in progress of litigation). Plaintiffs reques

tolling as of the date Plaintiffs filed the complaint, December 19, 2006, through the date of the

Court-ordered deadline for filing Consents to Join.



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IV. CONCLUSION

For the reasons set forth above, Plaintiffs respectfully request that the Court grant their

Motion, thereby conditionally certifying this case as a FLSA class action under 29 U.S.C.

216(b); authorize dissemination of notice to the prospective class; approve Plaintiffs proposed

forms of notice and written consent to join; order Defendant Fund promptly to produce the

names, addresses, and telephone numbers of all potential collective action members; and

equitably toll the statute of limitations for all potential collective action members from December

19, 2006.

Respectfully submitted,

Dated: May 18, 2007 By: /s/ David A. LoweDavid A. LoweAttorneys for Plaintiffs

David A. Lowe (State Bar #178811)

John T. Mullan (State Bar # 221149)

RUDY, EXELROD & ZIEFF, L.L.P.351 California Street, Suite 700

San Francisco, CA 94104

Telephone: (415) 434-9800Facsimile: (415) 434-0513




The Fund Class Action - Motion for Certification

Documents

Transcript of The Fund Class Action - Motion for Certification