Utah District Court Judge Holds That Language About Potential Cost Shifting Should Not Be Included in Collective Action Notice

On December 13, 2012, Judge Tena Campbell of the District of Utah refused to allow the notice to potential FLSA class members to include language stating that if unsuccessful, plaintiffs may be subject to paying a pro rata portion of the costs incurred by a defendant. The Court held that “[g]iven the small amount of costs compared to the overall stakes, and the rarity of fee-shifting, the disputed language proposed by Cellular Sales risks chilling participation in the collective action.” Bolletino v. Cellular Sales of Knoxville, 2012 U.S. Dist. LEXIS 177217, *4 (D. Utah Dec. 13, 2012)

Plaintiff Bolletino is represented by Winebrake & Santillo as well as Barrett Johnston, LLC (Nashville, Tenn.) and Barkan Meizlish Handelman Goodin DeRose Wentz, LLP (Columbus, OH). Mr. Bolletino alleges that he and other Sales Professionals for Cellular Sales were misclassified as independent contractors, rather than employees, and should have received overtime premium compensation when they worked over 40 hours in a single workweek. A copy of Judge Campbell’s order is attached here.

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