Opt-ins Can Join Case Prior to Conditional Certification

Below is part of a recent brief we filed in opposition to an employer’s motion to strike consent forms for opt-in plaintiffs that were filed prior to conditional certification:

Defendant has filed a “Motion to Strike Consents and to Bar the Filing of Additional Consents” (“Motion to Strike”) in which it argues that certain opt-ins are prohibited from joining this collective action until after the Court grants Plaintiff’s anticipated conditional certification motion. See Doc. 13. As the Court may be aware, conditional certification of the FLSA collective would (i) enable plaintiff’s counsel to discover the names and addresses of the potential members of the FLSA collective and (ii) facilitate the mailing of a Court-approved notice form to be mailed to each member of the collective. See generally Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989); Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 535-36 (3d Cir. 2012); Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 192-94 (3d Cir. 2012).

A. Employees Are Permitted to Join an FLSA Collective Prior to the District Court’s Conditional Certification Ruling.

Defendant’s argument that that conditional certification is a necessary prerequisite to individuals joining an FLSA collective action is simply incorrect. While conditional certification is an important procedural device that enables district courts to facilitate an orderly FLSA notice and opt-in process, see generally Hoffman-La Roche, 493 U.S. at 170-73, the Third Circuit has made clear that conditional certification “‘is neither necessary nor sufficient for the existence of a representative action under FLSA.’” Symczyk, 656 F.3d at 194 (quoting Myers v. Hertz Corp., 624 F.3d 537, 555 n. 10 (2d Cir. 2010)) (emphasis supplied); see also Zavala, 691 F.3d at 536 (repeating same quote).

In other words, FLSA collective actions can go forward (subject to the district court’s potential “decertification” of the collective after the close of discovery) without the plaintiffs’ lawyer ever obtaining conditional certification.[1] This point is made abundantly clear in footnote 10 of the Second Circuit’s Myers opinion (which is the same footnote from which the Third Circuit quotes in both Symczyk and Zavala):

Indeed, while courts speak of “certifying” a FLSA collective action, it is important to stress that the “certification” we refer to here is only the district court’s exercise of the discretionary power, upheld in Hoffmann-La Roche, to facilitate the sending of notice to potential class members. Section 216(b) does not by its terms require any such device, and nothing in the text of the statute prevents plaintiffs from opting in to the action by filing consents with the district court, even when the notice described in Hoffmann-La Roche has not been sent, so long as such plaintiffs are “similarly situated” to the named individual plaintiff who brought the action. Thus “certification” is neither necessary nor sufficient for the existence of a representative action under FLSA, but may be a useful “case management” tool for district courts to employ in “appropriate cases.”

Myers, 624 F.3d at 555 n. 10 (emphasis supplied; internal citations omitted).

Moreover, Defendants’ Motion to Strike ignores the reality that employees routinely opt-in to FLSA collective actions at the pre-conditional certification stage. Hundreds (and maybe even thousands) of cases exemplify this point. For example, a review of the docket in Mayan v. Rydbom Express, Inc., 2:07-cv-02658-LS (E.D. Pa.), will reveal that many employees opted-in to the lawsuit before the defendant company even filed an answer and well before Judge Stengel conditionally certified the collective. The same can be said of Resch v. Krapf’s Coaches, Inc., 2:11-cv-06893-WY (E.D. Pa.), and Spellman v. American Eagle Express, Inc., 2:10-cv-01764-JS (E.D. Pa.), and other cases too numerous to mention. Indeed, in Knecht v. Penn Psychiatric Center, Inc., 2:12-cv-00988-JHS, an FLSA collective action currently pending before Your Honor, experienced defense counsel from the Morgan Lewis firm never suggested that it was inappropriate (or even unusual) for employees to opt-in to the FLSA collective before Your Honor’s August 24, 2012 conditional certification order. Simply put, Defendant’s arguments cannot be squared with the manner in which FLSA collective actions are routinely handled in this Court and other district courts throughout the country.[2]

Finally, Defendants’ argument ignores the fact that, in FLSA collective actions (unlike Rule 23 class actions), the filing of the original plaintiff’s complaint does not toll the statute of limitations as to other employees. See 29 U.S.C. § 256(b); Taylor v. Pittsburgh Mercy Health System, Inc., 2009 U.S. Dist. LEXIS 40080, *2 (W.D. Pa. May 11, 2009). Thus, application of Defendant’s rule prohibiting employees from joining the FLSA collective prior to resolution of the conditional certification motion (which can sometimes take over six months to be briefed and resolved) will force individuals to begin new lawsuits in order to toll the running of the statute of limitations. Such an outcome (which would require the litigation of multiple individual actions rather than a single collective action) contradicts the very purpose of the FLSA’s collective action device, which is to provide employees with “the advantage of lower individual costs to vindicate rights by the pooling of resources.” Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989); see also Evans v. Lowe’s Home Centers, Inc., 2006 U.S. Dist. LEXIS 32104, *15 (M.D. Pa. May 18, 2006) (collective actions enable the “lowering cost and limiting the controversy to one proceeding to efficiently resolve the common issues of law and fact.”); Moss v. Crawford & Co., 201 F.R.D. 398, 410 (W.D. Pa. 2000) (“the primary objectives of a § 216(b) collective action are: (1) to lower costs to the plaintiffs through the pooling of resources; and (2) to limit the controversy to one proceeding which efficiently resolves common issues of law and fact that arose from the same alleged activity”).

In sum, Defendant’s argument that these opt-ins are barred from opting-in to this action prior to the Court’s conditional certification decision should fail. The argument is inconsistent with the controlling decisional law, cannot be squared with the manner in which FLSA collective actions are actually handled, and contradicts the very purpose behind the collective action device.

B. Defendant’s Apparent Concern About Improper Communications are Irrelevant.

Defendant seems to assume that the undersigned counsel has embarked on a widespread notification campaign in order to locate potential opt-in plaintiffs. Indeed, Defendant’s brief discusses two non-binding, pre-Symczyk/Zavala court decisions – Cintron v. Hershey Puerto Rico, Inc., 363 F. Supp. 2d 10 (D. Puerto Rico 2005), and Bouder v. Prudential Financial, Inc., 2007 WL 3396303 (D.N.J. 2007) – that primarily concern situations in which the plaintiffs’ lawyer unilaterally embarked on a notice campaign outside of the court-supervised process resulting from conditional certification.

Defendant’s assumptions are incorrect. Here, the three opt-ins are former employees who are Ciarrocchi’s personal friends and/or relatives. They learned about the lawsuit by speaking with Ciarrocchi as well as the undersigned counsel, and they smartly decided to join the collective before the running statute of limitations eliminated their legal claims. Plaintiff’s counsel has not issued any widespread notice to potential members of the FLSA collective. In fact, Plaintiff’s counsel agrees with Defendant that conditional certification (and the resulting Court-supervised notice process) is the best way to notify employees of the lawsuit and their right to participate.[3] In this regard, Plaintiffs’ counsel will reach out to defense counsel to determine whether (like employers in many other FLSA collective actions) Defendant will stipulate to conditional certification.

C. Conclusion

For the above reasons, the Court should deny Defendant’s Motion to Strike.

[1] If, after the close of discovery, the collective is “decertified,” then each opt-in plaintiff will be dismissed from the action without prejudice to them filing individual lawsuits. See Mayan v. Rydbom Express, Inc., 2009 U.S. Dist. LEXIS 90525, *34-35 (E.D. Pa. Sept. 30, 2009) (“If the court chooses to decertify, then the remaining plaintiffs are dismissed without prejudice and are free to initiate their own suits.”); accord Lusardi v. Xerox Corp., 747 F.2d 174, 178 (3d Cir. 1984); Andrako v. United States Steel Corp., 788 F. Supp. 2d 372, 383-84 (W.D. Pa. 2011).

[2] Indeed, some district courts have denied conditional certification motions on grounds that the lack of pre-notice opt-ins demonstrates a lack of interest amongst the potential members of the FLSA collective. See, e,g,, Simmons v. T-Mobile USA, Inc., 2007 U.S. Dist. LEXIS 5002, *33-34 (S.D. Texas Jan. 24, 2007) (to justify conditional certification “a showing is necessary that at least a few similarly situated individuals seek to join the lawsuit”).

[3] In the undersigned’s experience, only about 20% of potential FLSA opt-ins actually join the collective. This is in-line with several empirical nationwide studies that have been conducted.

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