Motion For Class Cert

Case 3:13-cv-02951-B Document 5 Filed 07/31/13
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION BRENDA AGUAYO, MARIA MALDONADO, MARIA CLIMACO, OLIVIA ORTIZ, ANA PALOMARES, SUSANA MARTINEZ AND NICANOR QUIROZ, on behalf of themselves and all others similarly situated, Plaintiffs, V. BASSAM ODEH, INC. AND BASSAM MOHAMMED ODEH Defendants.
CIVIL ACTION NO. 3:13-CV-02951-B
PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE
By: /s/Allen R. Vaught Allen R. Vaught Baron & Budd, P.C. State Bar No. 24004966 3102 Oak Lawn Avenue, Suite 1100 Dallas, Texas 75219 (214) 521-3605 Telephone (214) 520-1181 Facsimile avaught@baronbudd.com Paula Wyatt TX Bar No. 10541400 The Wyatt Law Firm 70 NE Loop 410, Suite 725 San Antonio, Texas 78216 (210) 340-5550 Telephone (210) 340-5581 Facsimile pwyatt@wyattlawfirm.com ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion to Conditionally Certify a Collective Action and Issue Notice will be served with the Original Complaint and Summons in this case by private process server. The date of service will be confirmed by the proof of service as completed by the process server. Additionally, I hereby certify that a true and correct copy of this Motion to Conditionally Certify a Collective Action and Issue Notice was served on Defendants, as listed below, along with a copy of the Complaint and Summons via certified mail, return receipt requested, and placed into an official depository of the United States Postal Service, on this the 31st day of July 2013: Defendant Bassam Odeh, Inc. c/o registered agent, Mr. Bassam M. Odeh 502 North OConnor Road Irving, Texas 75061-7528 CMRRR 7160 3901 9848 4711 1666 Defendant Bassam M. Odeh 6542 Potomac Parkway Arlington, Texas 76017-4934 CMRRR 7160 3901 9848 4711 1673
/s/Allen R. Vaught Allen R. Vaught
TABLE OF CONTENTS I. II. III. SUMMARY ........................................................................................................................ 1 FACTUAL BACKGROUND ............................................................................................. 3 ARGUMENT AND ANALYSIS ....................................................................................... 5 A. B. Certification Standard. ............................................................................................ 5 Plaintiffs Satisfy The Lenient Legal Standard For Conditional Certification Of A FLSA Collective Action. ........................................................ 10 1. 2. 3. First, There Is A Reasonable Basis For Crediting The Assertion That Aggrieved Individuals Exist ............................................................. 10 Second, Those Other Aggrieved Individuals Are Similarly Situated To The Plaintiffs In Relevant Respects Given The Claims Asserted ....... 11 Finally, Even If The Third Requirement Exists (And Some Courts Hold That It Does Not) There Is Sufficient Evidence That Those Other Aggrieved Individuals Are Interested In Opting In To This Lawsuit...................................................................................................... 13 a. Some Courts Have Held That This Requirement Does Not Apply In The First Place13 Even If This Requirement Applies, Plaintiffs Have More Than Adequately Fulfilled It .14
b.
C. IV.
The Proposed Notice..16
CONCLUSION..18
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TABLE OF AUTHORITIES CASES Acevedo v. Allsups Convenience Stores, Inc. 600 F.3d 516 (5th Cir. 2010)..6,13 Adams v Inter-Con Sec Systems, Inc., 242 F.R.D. 530 (N.D. Cal. 2007)..17,18 Badgett v. Tex. Taco Cabana, L.P., No. Civ .A.H 05-3624, 2006 WL 367872 (S.D. Tex. Feb.14, 2006)..13 Barnett v. Countrywide Credit Industries, Inc., Civ. A. 3:01-CV-1182-M, 2002 U.S. Dist. LEXIS 9099 (N.D. Tex. 2002).16 Black v. SetttlePou, P.C., Civil Action No. 3:10-CV-1418-K, 2011 U.S. Dist. LEXIS 15493 (N.D. Tex. Feb. 14, 2011)....14,18 Bouaphakeo v. Tyson Foods, Inc., 564 F. Supp. 2d 870 (N.D. Iowa 2008)....9 Burkholder v. City of Fort Wayne, 750 F. Supp. 2d 990 (N.D. Ind. 2010)..12 Cantu v. Vitol, Inc., Civil Action No. H-09-0576, 2009 U.S. Dist. LEXIS 118325 (S.D. Tex. Dec. 21, 2009)....8 Cryer v Intersolutions, Civil Action No. 06-2032 (EGS) 2007 U.S. Dist. LEXIS 29339, (D.D.C. April 7, 2007).........17 Da Silva v M2/Royal Constr of La., LLC, Civil Action No.: 08-4021, 2009 U.S. Dist. LEXIS 100692 (E.D. La. Oct. 29, 2009).17 Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)..6 Dreyer v. Baker Hughes, Civil Action H-08-1212, 2008 U.S. DIST. LEXIS 101297 (S.D. TEX. DECEMBER 11, 2008) 12,13 Heckler v. DK Funding, LLC, 502 F. Supp. 2d 777 (N.D. Ill. 2007).....13 Hernandez v. Bob Mills Furniture Co. of Tex., LP, 2011 U.S. Dist. LEXIS 26395 (N.D. Tex. Mar. 15, 2011)7
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Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989) 6 Hoffmann v. Sbarro, Inc., 982 F. Supp. 249 (S.D.N.Y. 1997)10 In re Wells Fargo Wage & Hour Empl. Practices Litig., No. H-11-2266, 2012 U.S. Dist. LEXIS 112769 (S.D. Tex. Aug. 10, 2012)..8,9 Johnson v. Big Lots Stores, Inc., Civil Action Nos. 04-3201, 05-6627, 2007 U.S. Dist. LEXIS 96151 (E.D. La. Aug. 21, 2007)......12 Johnson v. TGF Precision Haircutters, Inc., 319 F. Supp. 2d 753 (S.D. Tex. 2004)..12 Jones v. SuperMedia Inc., 281 F.R.D. 282 (N.D. Tex. 2012)...7,8,11,14 King v ITT Continental Baking Co., 1986 U.S. Dist. LEXIS 29321, (N.D. Ill. Feb. 13, 1986)..17 Littlefield v. Dealer Warranty Servs., LLC, 679 F. Supp.2d 1014 (E.D. Mo. 2010)..17 Longcrier v. HLA Co., 595 F. Supp. 2d 1218 (M.D. Ala. 2008)......9 Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987)...6,7,9,14 Luvianos v. Gratis Cellular, Inc., NO. CIV.A. H-12-1067, 2012 U.S. Dist. LEXIS 183027 (S.D. Tex. Dec. 10, 2012)...14 Lynch v. United Svcs. Auto. Assn, 491 F. Supp. 2d 357 (S.D.N.Y. 2007).....9 Mahoney v. Farmers Ins. Exchange, NO. 4:09-CV-2327, 2011 U.S. Dist. LEXIS 108744 (S.D. Tex. Sep 23, 2011)..8 McKnight v. D. Houston, Inc., 756 F. Supp. 2d 794 (S.D. Tex. 2010).....9 Mooney v. Aramco Servs. Co., 54 F.3d 1207 (5th Cir. 1995).....6,7,9,10,11,12,13
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Morales v. Thang Hung Corp., Civil Action No. 4:08-2795, 2009 U.S. Dist. LEXIS 71765 (S.D. Tex. Aug. 14, 2009)..8 Pereira v Foot Locker, Inc., 261 F.R.D. 60 (E.D. Pa. 2009)...17 Perrin v. Papa John's International, Inc., No. 09CV01335 AGF, 2011 U.S. Dist. LEXIS 117046 (E.D. Mo. Oct. 11, 2011)...17,18 Prater v. Commerce Equities Mgmt. Co., No. H-07-2349, 2007 U.S. Dist. LEXIS 85338 (S.D. Tex. Nov 19, 2007)....8 Putnam v. Galaxy 1 Marketing, Inc., 276 F.R.D. 264 (S.D. Iowa Aug. 23, 2011)..17,18 Reid v. Timeless Restaurants, Inc., Civil Action No. 3:09-CV-2481-L, 2010 U.S. Dist. LEXIS 118802 (N.D. Tex. 2010)..7,16 Ryan v. Staff Care, Inc, 497 F. Supp. 2d 820 (N.D. Tex. 2007)..........15 Sandoz v. Cingular Wireless, LLC. 553 F.3d 913 (5th Cir. 2008)7 Sherrill v Sutherland Global Servs., 487 F. Supp. 2d 344 (W.D.N.Y. 2007)..17 Shushan v. University of Colorado, 132 F.R.D. 263 (D. Colo. 1990)..6 Tolentino v. C & J Spec-Rent Services Inc., 716 F. Supp. 2d 642 (S.D. Tex. 2010)......6,7,9,14 Tony & Susan Alamo Found. v. Secy of Labor, 471 U.S. 290, 105 S. Ct. 1953, 85 L.Ed.2d 278 (1985)....13,14 Vargas v. Richardson Trident Company, Civil Action No. H-09-1674, 2010 U.S. Dist. LEXIS 15104 (S.D. Tex. Feb. 22, 2010)...7 Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672 (D. Colo. 1997)10 Villarreal v. St. Lukes Episcopal Hosp., 751 F. Supp. 2d 902 (S.D. Tex. 2010).......8,10,14
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Villatoro v. Kim Son Restaurant, L.P., 286 F. Supp. 2d 807 (S.D. Tex 2003)......6 White v. 14051 Manchester, Inc., No. 12CV469 JAR, 2012 U.S. Dist. LEXIS 178621 (E.D. Mo. Nov. 30, 2012)...17 Yaklin v. W-H Energy Servs., Inc., Civil Action No. C-07-422, 2008 U.S. Dist. LEXIS 36572, (S.D. Tex. May 2, 2008)...6 Young v. Cooper Cameron Corp., 229 F.R.D. 50 (S.D.N.Y. 2005).10
STATUTES 29 U.S.C. 201, et seq. ...1 29 U.S.C. 207(a)............1,5 29 U.S.C. 216....2 29 U.S.C. 216(b)......5,13 29 U.S.C. 251, et seq.1
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION BRENDA AGUAYO, MARIA MALDONADO, MARIA CLIMACO, OLIVIA ORTIZ, ANA PALOMARES, SUSANA MARTINEZ AND NICANOR QUIROZ, on behalf of themselves and all others similarly situated, Plaintiffs, V. BASSAM ODEH, INC. AND BASSAM MOHAMMED ODEH Defendants.
CIVIL ACTION NO. 3:13-CV-02951-B
PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE Plaintiffs, Brenda Aguayo (Aguayo), Maria Maldonado (Maldonado), Maria Climaco (Climaco), Olivia Ortiz (Ortiz), Ana Palomares (Palomares), Susana Martinez (Martinez) and Nicanor Quiroz, (Quiroz) (collectively Plaintiffs) file this Motion to Conditionally Certify a Collective Action and to Issue Notice, showing in support as follows: I. SUMMARY This case arises, in relevant part, under the federal Fair Labor Standards Act (FLSA), 29 U.S.C. 201, et seq. and the federal Portal-to-Portal Pay Act, 29 U.S.C. 251-262. The FLSA provides for payment of overtime at one and one-half times the regular rate of pay. 29 U.S.C. 207(a). In their Complaint, Plaintiffs allege that they did not receive all overtime compensation due because Bassam Odeh, Inc. (Bassam), and Mr. Bassam Mohammed Odeh (Odeh) (collectively Defendants) engaged in a scheme whereby Plaintiffs were not credited with any overtime hours worked. Instead, Defendants credited those hours worked over 40 per
PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE PAGE 1
workweek to fictitious employees in order to avoid payment of time and one-half overtime compensation to the Plaintiffs. Those fictitious employee checks were then cashed by
Defendants, and after deduction for a check processing fee, the Plaintiffs were then paid cash for hours worked over 40 in a workweek at straight-time only, but typically at an amount even less than their regular rates of pay. Defendants violated the FLSA by not paying Plaintiffs overtime compensation for all hours worked over 40 in each and every workweek. Accordingly, Defendants have shortchanged their current and former employees because they have not paid all overtime compensation due. This motion seeks to provide notice to the aggrieved group of employees. Specifically, Plaintiffs seek an order from the Court conditionally certifying a collective action under 29 U.S.C. 216, and authorizing Plaintiffs to issue opt-in notices to their similarly situated nonexempt fast food restaurant employees who work, or have worked, for Defendants in Texas and Louisiana in the three years prior to the filing of this Motion who were not paid overtime compensation for all hours worked over 40 during each and every workweek. Accordingly, the sole question presented by this motion is: Should the other non-exempt fast food restaurant employees who were not paid overtime compensation for all hours worked over 40 during each and every workweek be given notice and an opportunity to opt-in to this case in order to seek the overtime damages the Defendants owe each of them. The answer, under the law, is yes.
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II.
FACTUAL BACKGROUND Plaintiff Aguayo has worked for Defendants from August 2010 to December 2012 and
May 2013 through the present at their Jack in the Box fast food restaurant located in Irving, Texas, as well as several other stores in the Dallas/Ft. Worth area. (App. pp. 1 - 4 at 2 & 4). Plaintiff Maldonado has worked for Defendants since July 2001 at their Jack in the Box fast food restaurant located in Irving, Texas, as well as several other stores in the Dallas/Ft. Worth area. (App. pp. 5 - 8 at 2 & 4). Plaintiff Ortiz has worked for Defendants from 1999 to 2002 and May 2009 through the present at their Jack in the Box fast food restaurant located in Irving, Texas, as well as several other stores in the Dallas/Ft. Worth area. (App. pp. 9 - 12 at 2 & 4). Plaintiff Climaco has worked for Defendants since December 2005 at their Jack in the Box fast food restaurant located in Irving, Texas. (App. pp. 13 - 16 at 2 & 4). Plaintiff Quiroz has worked for Defendants from 1996 to 2004 and May 2007 through the present at their Jack in the Box fast food restaurant located in Irving, Texas as well as several other stores in the Dallas/Ft. Worth area. (App. pp. 17 - 20 at 2 & 4). Plaintiff Palomares has worked for Defendants since November 2009 at their Jack in the Box fast food restaurant located in Irving, Texas. Plaintiff Martinez has worked for Defendants since March 2007 at their Jack in the Box fast food restaurant located in Irving, Texas. Bassam owns and operates Jack in the Box and Qdoba related franchise fast food restaurants in Texas and Louisiana. (App. p. 1 at 1, p. 5 at 1, p. 9 at 1, p. 13 at 1, p. 17 at
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1 & p. 21). In fact, Odeh personally stated in a New York Times interview in 2009 that he owns Jack and the Box and Qdoba restaurants in Texas and Louisiana.1 (App. pp. 21-22). Defendants employ/employed Plaintiffs in connection with their fast food restaurant operations. (App. pp. 1 - 2 at 1 - 4, pp. 5 - 6 at 1 - 4, pp. 9 - 10 at 1 - 4, p. 13 at 1 - 4 & pp. 17 - 18 at 1 - 4). All Plaintiffs were paid an hourly wage and, at all times, were nonexempt employees under the FLSA. (App. p. 2 at 5, p. 6 at 5, p. 10 at 5, p. 14 at 5 & p. 18 at 5). As non-exempt employees, Plaintiffs and putative collective action members were and are entitled to receive overtime pursuant to the FLSA.2 It is believed that Defendants employed over 150 non-exempt employees for the three year time period preceding July 31, 2013. (App. p. 3 at 9, p. 7 at 9, p. 11 at 9, p. 15 at 9 & p. 19 at 9). Although Plaintiffs regularly worked in excess of 40 hours per workweek, Defendants engaged in a scheme whereby Plaintiffs were not credited with any overtime hours worked. (App. p. 2 at 6, p. 6 at 6, p. 10 at 6, p. 14 at 6 & p. 18 at 6). Instead, Defendants credited those hours worked over 40 per workweek to fictitious employees in order to avoid payment of time and one-half overtime compensation to the Plaintiffs. (App. p. 2 at 6, p. 6 at 6, p. 10 at 6, p. 14 at 6 & p. 18 at 6). For example, Bassam credited overtime hours worked by Plaintiffs Aguayo, Maldonado and Ortiz to fictitious employees, including one named Jade Perez. (App. p. 2 at 6, p. 6 at 6 & p. 10 at 6). Plaintiff Climacos overtime hours worked were credited by Bassam to a fictitious employee named Marlen Martinez. (App. p. 14 at 6). Plaintiff Quirozs overtime
1
In that New York Times interview, Odeh claims to own 34 restaurants in Texas and Louisiana, including outlets for Jack in the Box, Qdoba and Panchos. At this time, only Jack in the Box and Qdoba are covered by Plaintiffs collective action claims, but Plaintiffs reserve the right to amend the scope of this collective action based on later-acquired facts.
2
29 U.S.C. 207(a)
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hours worked were credited by Bassam a fictitious employee named Alejandro Medrano. (App. p. 18 at 6). Checks for straight-time hours worked over 40 in a workweek by Plaintiffs were then issued to these fictitious employees, but at an hourly rate less than the Plaintiffs respective regular rates of pay. (App. p. 2 at 7, p. 6 at 7, p. 10 at 7, p. 14 at 7 & p. 18 at 7 ). These fictitious employee checks were then cashed by Defendants, and after deduction for a check processing fee, the Plaintiffs were then paid cash for hours worked over 40 in a workweek at straight-time only, but typically at an amount even less than their regular rates of pay. (App. p. 2 at 7, p. 6 at 7, p. 10 at 7, p. 14 at 7 & p. 18 at 7 ). Defendants have a company-wide practice/policy to not pay hourly fast food restaurant employees all overtime due pursuant to the scheme identified above. (App. p. 3 at 9, p. 7 at 9, p. 11 at 9, p. 15 at 9 & p. 19 at 9). III. ARGUMENT AND ANALYSIS A. Certification Standard.
The FLSA requires covered employers to pay non-exempt employees for hours they have worked in excess of defined maximum hours. 29 U.S.C. 207(a). It also creates a cause of action for employees against employers who have violated the overtime compensation requirements: An action ... may be maintained ... 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. 29 U.S.C. 216(b).
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A representative action brought pursuant to this provision follows an opt-in rather than an opt-out procedure. See Tolentino v. C & J Spec-Rent Services Inc., 716 F. Supp. 2d 642, 646 (S.D. Tex. 2010) (citation omitted). District courts have discretion in deciding whether and how to award timely, accurate, and informative notice to prospective plaintiffs. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 172, (1989). FLSA collective actions are generally favored because such actions reduce litigation costs for the individual plaintiffs and create judicial efficiency by resolving in one proceeding common issues of law and fact arising from the same alleged . . . activity. Yaklin v. W-H Energy Servs., Inc., Civil Action No. C-07-422, 2008 U.S. Dist. LEXIS 36572, at *4 (S.D. Tex. May 2, 2008) (citing Hoffmann-La Roche Inc., 493 U.S. at 170). Courts presently follow two different approaches in determining whether to authorize notice to employees of their right to join a collective action suit under FLSA Section 216(b). See Tolentino, 716 F. Supp. 2d at 646. The first approach was developed in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987), and involves a two-step process to determine whether employees are similarly situated. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 90-91 (2003). The second approach follows Shushan v. University of Colorado, 132 F.R.D. 263 (D. Colo. 1990), and treats the collective action authorization as coextensive with Rule 23 class certification. See Tolentino, 716 F. Supp. 2d at 646; Villatoro v. Kim Son Restaurant, L.P., 286 F. Supp. 2d 807, 809 (S.D. Tex 2003). The Fifth Circuit has not yet ruled on how district courts should determine whether plaintiffs are sufficiently similarly situated to advance their claims together in a single 216(b) action. Acevedo v. Allsups Convenience Stores Inc., 600 F.3d 516, 518-19 (5th Cir. 2010).
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However, the majority of courts and this district therefore follow the two-step approach rather than the Rule 23 approach. Jones v. Supermedia, Inc., 281 F.R.D. 282, 287 n.1 (N.D. Tex. 2012) (Boyle, J.); Reid v. Timeless Restaurants, Inc., No. 3:09-CV-2481-L, 2010 WL 4627873, at *2 (N.D. Tex. Nov. 5, 2010) (Lindsay, S.); Hernandez v. Bob Mills Furniture Co. of Tex., LP, No. 2:10-CV-0243-J, 2011 U.S. Dist. LEXIS 26395 at *4 (N.D. Tex. Mar. 15, 2011) (Robinson, M.). Furthermore, the Fifth Circuit has referred to the two step approach as the typical manner in which collective actions proceed. See Sandoz v. Cingular Wireless, LLC, 553 F.3d 913, 915 n.2 (5th Cir. 2008). The first step of the Lusardi analysis is the notice stage. See Tolentino, 716 F. Supp. 2d at 647. During the notice stage, the court makes a decision-usually based only on the pleadings and any affidavits which have been submitted-whether notice of the action should be given to potential class members. Because the court has minimal evidence, this determination is made using a fairly lenient standard and typically results in conditional certification of a representative class. Id. If the district court conditionally certifies the class, putative class members are given notice and the opportunity to opt-in. See Mooney, 54 F.3d at 1214. At this stage, courts generally require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan infected by discrimination. Id. at n.8. As one court recently explained, [a] factual basis for the allegations must be presented, and there must be a showing of some identifiable facts or legal nexus that binds the claims so that hearing the cases together promotes judicial efficiency. See Tolentino, 716 F. Supp. 2d at 647 (citation omitted); see also Vargas v. Richardson Trident Company, Civil Action No. H-09-1674, 2010 U.S. Dist. LEXIS 15104, at *7 (S.D. Tex. Feb. 22, 2010).
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Generally, a plaintiff must show that: (1) there is a reasonable basis for crediting the assertion that aggrieved individuals exist; (2) those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted; and (3) those individuals want to opt in to the lawsuit. Morales v. Thang Hung Corp., Civil Action No. 4:08-2795, 2009 U.S. Dist. LEXIS 71765, at *7 (S.D. Tex. Aug. 14, 2009). See also In re Wells Fargo Wage & Hour Empl. Practices Litig., 2012 U.S. Dist. LEXIS 112769 at *24 (S.D. Tex. Aug. 10, 2012) (reciting same three factors); Mahoney v. Farmers Ins. Exchange, NO. 4:09-CV-2327, 2011 U.S. Dist. LEXIS 108744, at *10-11 (S.D. Tex. Sep 23, 2011) (reciting same three factors). This standard is less stringent than the Rule 23 class action requirements. See Cantu v. Vitol, Inc., Civil Action No. H-09-0576, 2009 U.S. Dist. LEXIS 118325, at *9-10 (S.D. Tex. Dec. 21, 2009); Prater v. Commerce Equities Mgmt. Co., No. H-07-2349, 2007 U.S. Dist. LEXIS 85338, at *7 (S.D. Tex. Nov 19, 2007) (citing cases). And some courts in the Fifth Circuit have done away with the third requirement. See, e.g., Villarreal v. St. Lukes Episcopal Hosp., 751 F. Supp. 2d 902, 916 (S.D. Tex. 2010) (Liberally construing the FLSA to effect its purposes, the court finds that it is enough for the plaintiff to present evidence that there may be other aggrieved individuals to whom a class action notice should be sent, without requiring evidence that those individuals actually intend to join the lawsuit.). A court may deny conditional certification and notice if the action arises from circumstances purely personal to the plaintiff, and not from any generally applicable rule, policy, or practice. However, the court need not find uniformity in each and every aspect of
employment to determine [that] a class of employees is similarly situated. The remedial nature of the FLSA strongly favors of allowing cases to proceed collectively. Jones, 281 F.R.D. at 288 (citing Tolentino, 716 F. Supp. 2d at 647). If the court conditionally certifies the class during the
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notice stage, the action proceeds as a representative action throughout discovery. See Mooney, 54 F.3d at 1214. Lusardis second step is triggered when a defendant files a motion for decertification, after completion of discovery. Id. At this stage, the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question. If the claimants are similarly situated, the district court allows the representative action to proceed to trial. If the claimants are not similarly situated, the district court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice. The class representatives i.e. the original plaintiffs proceed to trial on their individual claims. Id.; Tolentino, 716 F. Supp. 2d at 647. Notification to prospective claimants issues when a court conditionally certifies the case as a collective action suit under Section 216(b), and the court may exercise its discretion in defining the class of plaintiffs who will receive notice and how they will be notified. Id. at 64748. Neither stage of certification is an opportunity for the court to assess the merits of the claim by deciding factual disputes or making credibility determinations. McKnight v. D. Houston, Inc., 756 F. Supp. 2d 794, 802 (S.D. Tex. 2010) (citing Bouaphakeo v. Tyson Foods, Inc., 564 F. Supp. 2d 870, 893 (N.D. Iowa 2008) ([W]hether at the first or second step in the 216(b) collective action certification process, plaintiffs need not prove the merits of their claim. That is, plaintiffs do not have to show that the employer actually violated the FLSA.); In re Wells Fargo, 2012 U.S. Dist. LEXIS 112769 at *85-88 (analysis of merits-based arguments and are irrelevant at the Lusardi notice stage); Longcrier v. HLA Co., 595 F. Supp. 2d 1218, 124041 (M.D. Ala. 2008) (To the extent that Defendant would now argue the merits of the case, such debates are premature and inappropriate.); Lynch v. United Svcs. Auto. Assn, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007) (At this procedural stage, the court does not resolve factual disputes,
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decide substantive issues going to the ultimate merits, or make credibility determinations.); Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005) (The focus . . . is not on whether there has been an actual violation of law but rather on whether the proposed plaintiffs are similarly situated ... with respect to their allegations that the law has been violated.); Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 262 (S.D.N.Y. 1997) ([T]he Court need not evaluate the merits of plaintiffs claims in order to determine that a definable group of similarly situated plaintiffs can exist here.); Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 680 (D. Colo. 1997) ([W]hether plaintiffs can meet their burden in the liability phase . . . is irrelevant to the question of 216(b) certification). B. Plaintiffs Satisfy The Lenient Legal Standard For Conditional Certification Of A FLSA Collective Action.
This Court must determine whether Plaintiffs have satisfied their burden to demonstrate that conditional class certification is proper. In the notice stage, a court will customarily make a decision based only on the pleadings and any affidavits which have been submitted. Mooney, 54 F.3d at 1213-14. To facilitate the analysis, the Court evaluates the request for conditional certification in light of the three factors discussed above. As set forth below, Plaintiffs satisfy the lenient standard for conditional certification. 1. First, There Is A Reasonable Basis For Crediting The Assertion That Aggrieved Individuals Exist.
To satisfy this requirement, Plaintiffs need only show that it is reasonable to believe that there are other aggrieved employees who were subject to an allegedly unlawful policy or plan. Villarreal, 751 F. Supp. 2d at 916-17. Plaintiffs easily do so. Plaintiffs have stated a cognizable claim under Section 207 of the FLSA, and Plaintiffs have provided evidence in the form of declarations from three of the seven named Plaintiffs showing that, although Plaintiffs regularly worked in excess of 40 hours per workweek,
Defendants engaged in a scheme whereby Plaintiffs were not credited with their overtime hours worked and did not receive overtime compensation for all hours worked over 40 in each and every workweek. Plaintiffs have identified that this policy was applied to all non-exempt fast food restaurant employees of Defendants, that Defendants operate numerous fast food restaurants in Texas and Louisiana and that Defendants employ approximately 150 or more employees at those restaurants at any given time. (App. p. 3 at 9, p. 7 at 9, p. 11 at 9, p. 15 at 9, p. 19 at 9 & p. 21). Furthermore, Odeh confirms in his interview with the New York Times that Defendants operate numerous Jack in the Box and Qdoba restaurants in Texas and Louisiana. (App. pp. 21-22). As the first step of the conditional certification process is usually based on only the pleadings and any declarations, Plaintiffs have exceeded their required showing at this lenient first stage. Mooney, 54 F.3d at 1213-14. Accordingly, there is cause to believe that there are 150 or more other aggrieved current and former employees of Defendants in Texas and Louisiana who have been denied overtime compensation for all hours worked over 40 in each and every workweek. 2. Second, Those Other Aggrieved Individuals Are Similarly Situated To The Plaintiffs In Relevant Respects Given The Claims Asserted.
The potential class plaintiffs are considered similarly situated to the named plaintiffs if they are similarly situated with respect to their job requirements and with regard to their pay provisions. The positions need not be identical, but similar. Jones, 281 F.R.D. at 288 (citations omitted). Plaintiffs satisfy this test. Their claims are not purely personal to them. Rather, they are based on a generally applicable rule, policy, or practice. Here, the individual circumstances of any non-exempt employee of Defendants is irrelevant. The only questions are: Were they a
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non-exempt employee? Did they work overtime? Were they denied overtime compensation for all hours worked over 40 in each and every workweek? Plaintiffs have provided sworn declarations identifying that they were hourly employees, were fast food restaurant workers with similar job duties, were non-exempt employees, regularly worked more than 40 hours per workweek and were not paid time and one-half their regular rates of pay for all hours worked over 40 in each and every workweek. (App. pp. 1 - 2 at 3, 5 & 6, pp. 5 - 6 at 3, 5 & 6, pp. 9 - 10 at 3, 5 & 6, pp. 13 - 14 at 3, 5 & 6 & pp. 17 - 18 at 3, 5 & 6). Plaintiffs and the putative class members are thus a cohesive and homogeneous group all subject to the same policy and practice (i.e., deprived of overtime pay for all overtime hours worked) that fit perfectly within the letter and the spirit of the FLSA collective action. See Dreyer v. Baker Hughes, Civil Action H-08-1212, 2008 U.S. Dist. LEXIS 101297, at *5-7 (S.D. Tex. December 11, 2008) (granting class certification of employees on same work team); Johnson v. Big Lots Stores, Inc., Civil Action Nos. 04-3201, 05-6627, 2007 U.S. Dist. LEXIS 96151, at *13 (E.D. La. Aug. 21, 2007) (To pursue claims against an employer, plaintiffs must be similarly situated. They do not have to be identically situated.). It is well settled that, at this fairly lenient notice stage of the proceedings, Plaintiffs sworn statements more than suffice as evidence that other employees are similarly situated. Mooney, 54 F.3d at 1214; Johnson v. TGF Precision Haircutters, Inc., 319 F. Supp. 2d 753, 754-55 (S.D. Tex. 2004) (The standard applied is a lenient one . . . ). Moreover, given the across-the-board violations of the FLSA by Defendants as to all hourly fast food restaurant employees, there is unlikely to be any truly individualized defenses in this case. See Burkholder v. City of Fort Wayne, 750 F. Supp. 2d 990, 994 (N.D. Ind. 2010) (granting certification of FLSA case in part because the City of Fort Wayne has not articulated
PAGE 12
any particularized defenses in this action, that is, their defenses would apply to all Plaintiffs, not just a particular Plaintiff.). 3. Finally, Even If The Third Requirement Exists (And Some Courts Hold That It Does Not) There Is Sufficient Evidence That Those Other Aggrieved Individuals Are Interested In Opting In To This Lawsuit. a. Some Courts Have Held That This Requirement Does Not Apply In The First Place.
The requirement of a showing that other aggrieved individuals are interested in opting into the suit in order to obtain collective certification is not a statutory requirement, and some courts have rejected it. See, e.g., Heckler v. DK Funding, LLC, 502 F. Supp. 2d 777, 780 (N.D. Ill. 2007). For example, in 2008, U.S. District Court Magistrate Judge Stephen Wm. Smith of the Southern District of Texas held that, such a requirement is at odds with the Supreme Courts command that the FLSA be liberally construed to effect its purposes. Dreyer, 2008 U.S. Dist. LEXIS 101297, at *8-9 (citing Tony & Susan Alamo Found. v. Secy of Labor, 471 U.S. 290, 296, 105 S. Ct. 1953, 85 L.Ed.2d 278 (1985)). In November 2010, U.S. Magistrate Judge Nancy Johnson also rejected this requirement, explaining: The court agrees that a plaintiff need not present evidence at this stage of the third element, that aggrieved individuals actually want to opt in to the lawsuit. There are several reasons for this. First, as already stated, this element is not a statutory requirement at this stage. See 29 U.S.C. 216(b). Second, this element has not been required, or even discussed, by any higher court opinion that this court has been able to find or to which the parties have cited. Rather, the Fifth Circuits discussion of the Lusardi approach only requires, at the first stage, that putative class members claims are sufficiently similar to merit sending notice of the action to possible members of the class. See [Acevedo v. Allsups Convenience Stores, 600 F.3d 516, 519 (5th Cir. 2010)] (citing Mooney, 54 F.3d at 1213-14). Third, unlike under Rule 23, there is no numerosity requirement in a FLSA class action lawsuit under the Lusardi approach. See, e.g., Badgett v. Tex. Taco Cabana, L.P., No. Civ .A.H 05-3624, 2006 WL 367872, at *2 (S.D. Tex. Feb.14, 2006) (Lake, J.) (unpublished) (citing Mooney, 54 F.3d at 1214 & n. 8) (stating that at the notice stage [in a FLSA action using the
Lusardi approach], courts appear to require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan (internal quotations omitted)). Fourth, this element, requiring evidence of purported class members who are willing to join a class action before an appropriate class is even determined, is dissonant with the Supreme Court's directive that the FLSA be liberally construed to effect its purposes. See Tony & Susan Alamo Found. v. Secy of Labor, 471 U.S. 290, 296, 105 S. Ct. 1953, 85 L.Ed.2d 278 (1985). Liberally construing the FLSA to effect its purposes, the court finds that it is enough for the plaintiff to present evidence that there may be other aggrieved individuals to whom a class action notice should be sent, without requiring evidence that those individuals actually intend to join the lawsuit. Villarreal, 751 F. Supp. 2d at 916. Magistrate Judge Johnson recently reiterated her rejection of this requirement in Luvianos v. Gratis Cellular, Inc., NO. CIV.A. H-12-1067, 2012 U.S. Dist. LEXIS 183027, at *15-16 (S.D. Tex. Dec. 10, 2012) (The court agrees with the latter camp that Plaintiffs need not present evidence of the third element at this stage of the certification process.), adopted, 2012 U.S. Dist. LEXIS 182560 (S.D. Tex. Dec. 28, 2012). b. Even If This Requirement Applies, Plaintiffs Have More Than Adequately Fulfilled It.
Even if the Court finds that this requirement applies, Plaintiffs have adequately satisfied it. Under this prong of the analysis, the lead Plaintiffs are not required to identify and obtain preliminary support from an un-specified numbers of potential class members. Black v.
SetttlePou, P.C., Civil Action No. 3:10-CV-1418-K, 2011 U.S. Dist. LEXIS 15493, at *8-9 (N.D. Tex. Feb. 14, 2011) (Kinkeade, J.). Requiring Plaintiffs to identify and obtain preliminary support from putative class members before obtaining conditional certification to issue notice would be putting the cart before the horse. Id. Rather, there must only be a reasonable basis to believe that other aggrieved individuals exist. Id. The Fifth Circuit has found as few as two declarations to satisfy the first stage of certification proceedings. Jones, 281 F.R.D. at 292 (citing Tolentino, 716 F. Supp. 2d at 653).
Here, Plaintiffs have shown a reasonable basis to believe that other aggrieved nonexempt fast food restaurant employees exist. Seven Plaintiffs have filed this lawsuit,3 and it is reasonable to expect that many of the non-exempt employees short-changed of overtime would want to join once they are informed of the existence of this lawsuit and the fact that the FLSA prohibits retaliation against them for seeking their unpaid overtime wages. Five of the Plaintiffs in this case have provided sworn declarations which identify the existence of other similarly situated employees who are subject to Defendants practice and scheme of not giving employees credit for any overtime hours worked, and instead, crediting those hours worked over 40 per workweek to fictitious employees in order to avoid payment of time and one-half overtime compensation to the Plaintiffs. (App. p. 3 at 9, p. 7 at 9 & p. 11 at 9). In those declarations, Plaintiffs estimate that Defendants employed over 150 non-exempt employees for the three year time period preceding July 29, 2013. (App. p. 3 at 9, p. 7 at 9 & p. 11 at 9). In conclusion, all the relevant factors militate in favor of granting Plaintiffs motion, conditionally certifying this action, and authorizing Plaintiffs to issue notice of opt-in rights to the other similarly situated fast food restaurant employees so they may also claim the unpaid overtime compensation that Defendants owe them. Ryan v. Staff Care, Inc, 497 F. Supp. 2d 820, 825 (N.D. Tex. 2007) (Fish, J.) (conditionally certifying nationwide class in misclassification case and stating that where the employers actions or policies were effectuated on a companywide basis, notice may be sent to all similarly situated persons on a companywide basis.).
(Doc. No. 1).

PAGE 15
C.
The Proposed Notice
Plaintiffs seek an order from the Court that Defendants produce to Plaintiffs counsel in a usable electronic format no later than seven (7) days from entry of the Courts Order, the full names (including middle if known), last known addresses, last known residential and cell phone numbers, e-mail addresses, last four digits of their Social Security Number4, dates of birth, and dates of employment, of all persons who work/worked for Defendants as non-exempt fast food restaurant employees between July 31, 2010 and the present at Defendants restaurants in Texas and Louisiana. See Reid, 2010 U.S. Dist. LEXIS 118802, at *9 (requiring defendants to provide plaintiffs with the full names (including middle names if known), last known mailing addresses, any alternate addresses, dates of birth, last four digits of the employees' Social Security numbers, and dates of employment for all employees in the Class); Barnett v. Countrywide Credit Industries, Inc., Civ. A. 3:01-CV-1182-M, 2002 U.S. Dist. LEXIS 9099, at *6 (N.D. Tex. 2002) (Lynn, B.) (ordering that names and last-known addresses of potential plaintiffs be turned over to plaintiff in electronic format). Plaintiffs have attached to this Motion their proposed notice to be sent to the putative class members. (App. pp. 23-25). Also attached is the proposed notice of consent to join which is to be included with that notice. (App. pp. 26-27). Plaintiffs request permission to distribute these documents in both English and Spanish as many of the putative class members may speak only Spanish.
The last four Social Security Numbers are needed for putative plaintiffs whose mail is returned undeliverable. This data is helpful in researching the new mailing addresses for such individuals. This information will be sought only for those putative class members whose mailed notice is returned undeliverable. However, Plaintiffs ask that the Court order Defendants to have that information available to counsel for Plaintiffs upon 24 hours notice that any such putative class members mail is returned undeliverable.
A FLSA notice represents the plaintiffs communication to the FLSA prospective class members. King v ITT Continental Baking Co., 1986 U.S. Dist. LEXIS 29321, at * 6-7 (N.D. Ill. Feb. 13, 1986). Thus, absent reasonable objections by either the defendant or the Court,
plaintiffs should be allowed to use the language of their choice in the notice. Id. (although the Court has both the power and the duty to ensure that the notice is fair and accurate, that power should not be used to alter plaintiffs' proposed notice unless such alteration is necessary.); Littlefield v. Dealer Warranty Servs., LLC, 679 F. Supp.2d 1014, 1018 (E.D. Mo. 2010) (holding that a court should not alter a plaintiff's proposed notice "unless certain changes are necessary.) Plaintiffs request that they be allowed a 90 day notice period. See White v. 14051 Manchester, Inc., No. 12CV469 JAR, 2012 U.S. Dist. LEXIS 178621, at *6, (E.D. Mo. Nov. 30, 2012) (90 day opt-in period); Pereira v Foot Locker, Inc., 261 F.R.D. 60, 72 (E.D. Pa. 2009) (90 days); Adams v Inter-Con Sec Systems, Inc., 242 F.R.D. 530, 542 (N.D. Cal. 2007) (90 days); Sherrill v Sutherland Global Servs., 487 F. Supp. 2d 344, 351 (W.D.N.Y. 2007) (90 days); Da Silva v M2/Royal Constr of La., LLC, Civil Action No.: 08-4021, 2009 U.S. Dist. LEXIS 100692, at *18 (E.D. La. Oct. 29, 2009) (90 days for construction workers at two locations); Cryer v Intersolutions, 2007 U.S. Dist. LEXIS 29339, at *10 (D.D.C. April 7, 2007) (90 days for 400-person class). Plaintiffs request that they be allowed to use the following information, in English and Spanish, on the outside of the mailing envelope to the putative class members Notice of Unpaid Overtime Lawsuit Deadline to Join. See Perrin v. Papa John's International, Inc., No. 09CV01335 AGF, 2011 U.S. Dist. LEXIS 117046, at * 17 (E.D. Mo. Oct. 11, 2011) (approving "Notice of Unpaid Overtime Lawsuit -- Deadline to Join" because the language fairly alerts the recipients that the envelope contains time-sensitive material, and is not junk mail); Putnam v.
PAGE 17
Galaxy 1 Marketing, Inc., 276 F.R.D. 264, 277 (S.D. Iowa Aug. 23, 2011) (approving similar language). Plaintiffs ask that they be allowed to provide putative class members with a prepaid selfaddressed envelope to be returned to counsel for Plaintiffs. See Black, 2011 U.S. Dist. LEXIS 15493, at *15 (authorizing enclosure of a "self-addressed, postage paid return envelope"); Perrin, 2011 U.S. Dist. LEXIS 117046, at * 17 (Numerous courts have approved the use of a prepaid envelope and the Court also approves its use in this case) (citing cases). Finally, Plaintiffs ask that they be permitted to send a postcard reminder to putative class members who have not returned executed notices of consent 30 days prior to the deadline to join reminding them of the deadline to join. Adams, 2007 U.S. Dist. LEXIS 83147, at *14 (approving reminder card to class members who had not submitted claims). IV. CONCLUSION Plaintiffs respectfully pray that the Court grant this Motion to Conditionally Certify a Collective Action and order that Notice be issued to the putative class members as described above. Plaintiffs request that the Court award such other and further relief to which Plaintiffs may be justly entitled.
PAGE 18

Motion For Class Cert

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Case 3:13-cv-02951-B Document 5 Filed 07/31/13

CIVIL ACTION NO. 3:13-CV-02951-B

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

/s/Allen R. Vaught Allen R. Vaught

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

The Proposed Notice..16

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

CIVIL ACTION NO. 3:13-CV-02951-B

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

(Doc. No. 1).

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

The Proposed Notice

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

Case 3:13-cv-02951-B Document 5 Filed 07/31/13

PLAINTIFFS MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

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