Limited Initial Discovery Does Not Preclude Initial Certification Analysis

Companies will often argue that conditionally certifying classes under the FLSA is not appropriate because some discovery has occurred. However, courts often reject such arguments.
For example, in Bunyan v. Spectrum Brands, Inc., the Southern District of Illinois only abandoned the two-step conditional certification approach following over 15 months of discovery by the parties during which the plaintiffs acquired a list of potential class members. 2008 U.S. Dist. LEXIS 59278, *13 (S.D.Ill. July 31, 2008). Other courts have also reluctantly applied an intermediate analysis only after (i) significantly more discovery was completed compared to this case; or (ii) informal notice was sent to potential opt-ins by the plaintiffs. See Bouaphakeo v. Tyson Foods, Inc., 564 F. Supp. 2d 870, 894-901 (N.D. Iowa 2008) (applying an intermediate analysis only after 300 individuals had joined the case and 22 depositions had been conducted by the parties); Basco v. Wal-Mart, 2004 U.S. Dist. LEXIS 12441 (E.D. La. July 2, 2004) (applying the intermediate analysis after approximately five years of litigation including six amendments to the complaint and the plaintiffs moving for Rule 23 class certification); Williams v. Accredited Home Lenders, Inc., 2006 U.S. Dist. LEXIS 50653, *11-12 (N.D. Ga. July 25, 2006) (“The Plaintiffs short circuited the process first by disseminating informal notice of the lawsuit and the opportunity to opt-in. Without court supervised notice, about 150 current or former loan officers, have filed consent forms to opt-in as Plaintiffs. The Defendant then sought and obtained the Court’s permission to take depositions of about 20 of the opt-in Plaintiffs.”).

Second, Maryland district courts have noted that it is improper to move beyond the initial conditional certification stage analysis until after the completion of all discovery. See Mercado v. N. Star Founds., Inc., 2011 U.S. Dist. LEXIS 43229, *3-4 (D. Md. Apr. 21, 2011) (second stage occurs after completion of discovery); Syrja v. Westat, Inc., 756 F. Supp. 2d 682, 686 (D. Md. 2010) (“in the second stage following the conclusion of discovery”). This is consistent with other federal courts that have rejected the application of a more stringent analysis following the completion of similar limited initial discovery concerning conditional certification. See e.g. Helmert v. Butterball, LLC, 2009 U.S. Dist. LEXIS 116460, *23 (E.D. Ark. Dec. 15, 2009) (refusing to apply a heightened analysis prior to the close of merits discovery); West v. Border Foods, Inc., 2006 U.S. Dist. LEXIS 96963, *9 (D. Minn. June 12, 2006) (analyzing the plaintiff’s motion for conditional certification under the initial stage despite the exchange of interrogatories and document requests, and three depositions of employees of the defendant); Lyons v. Ameriprise Fin., Inc., 2010 U.S. Dist. LEXIS 98496, *8-9 (D. Minn. Sept. 20, 2010) (“As an initial matter, [the defendant] argues for a ‘heightened’ or ‘intermediate’ standard rather than the lenient standard typically applied at the first stage, since some discovery has been conducted. The Court rejects this suggestion.”) (internal citations omitted).

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