Monroe v. United Air Lines, Inc.

90 F.R.D. 638, 29 Fair Empl. Prac. Cas. (BNA) 347, 1981 U.S. Dist. LEXIS 13394, 26 Empl. Prac. Dec. (CCH) 32,005
CourtDistrict Court, N.D. Illinois
DecidedJune 30, 1981
DocketNos. 79 C 360, 79 C 1572
StatusPublished
Cited by15 cases

This text of 90 F.R.D. 638 (Monroe v. United Air Lines, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Monroe v. United Air Lines, Inc., 90 F.R.D. 638, 29 Fair Empl. Prac. Cas. (BNA) 347, 1981 U.S. Dist. LEXIS 13394, 26 Empl. Prac. Dec. (CCH) 32,005 (N.D. Ill. 1981).

Opinion

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Plaintiff airline pilots (in Higman) and flight engineers (in Monroe) have brought these consolidated actions challenging the mandatory retirement age of 60 established by United Air Lines, Inc. (“United”). Plaintiffs now seek (1) leave to send notice to the members of the class they represent, informing them of these actions and their right to “opt in,” and (2) an order requiring United to provide the names, addresses and dates of birth of all persons to whom notice should be sent. For the reasons stated in this memorandum opinion and order that motion is granted.

These actions are brought under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-34. ADEA § 7(b) (29 U.S.C. § 626(b)) incorporates the procedural remedies of the Fair Labor [639]*639Standards Act (“FLSA”), 29 U.S.C. §§ 201ff. FLSA § 16(b) (29 U.S.C. § 216(b)), one of the remedial provisions incorporated into ADEA, provides:

Action to recover such liability may be maintained in any court of competent jurisdiction 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 consent in writing to become such a party and such consent is filed in the court in which such action is brought.

Plaintiffs’ motion initially poses a question of power: whether federal courts are permitted to send notice to class members informing them of their right to “opt in” to the action. Two Courts of Appeal have addressed that issue in FLSA cases and reached opposite results. Compare Kinney Shoe Corp. v. Vorhes, 564 F.2d 859 (9th Cir. 1977) (notice not permitted)1 with Braunstein v. Eastern Photographic Laboratories, Inc., 600 F.2d 335 (2d Cir. 1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1046 (1979) (notice permitted)2. To date our own Court of Appeals has not been called to decide the question.

Kinney and Braunstein agree that such notice is certainly not required by due process, because unnamed class members are not bound by any decision of the court. If notice is permitted the Court’s power must therefore be discretionary, to be exercised in appropriate circumstances. Thus the question of power becomes one of statutory interpretation: whether Congress, by its silence on the subject (in contrast to Fed.R.Civ.P. (“Rule”) 23), intended to prevent the sending of notice in class actions under FLSA § 16(b) and hence ADEA.3

In Kinney Shoe the Court barred notice under FLSA § 16(b), reasoning that if notice is not required by due process, neither court nor plaintiff should be involved “in the stirring up of litigation and the solicitation of claims.” 564 F.2d at 863. That notion was rejected in Braunstein (600 F.2d at 336):

In our view, this holding [allowing notice] comports with the broad remedial purpose of the Act, which should be given a liberal construction, as well as with the interest of the courts in avoiding multiplicity of suits.

Braunstein added, in refusing to follow a case that had barred notice because of concerns similar to those expressed in Kinney Shoe, “We believe that the recent trend in the law, see, e. g., Bates & O’Steen v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1976) [sic — actually 1977], strips [the earlier opinion] of much of its force. ...” Id.

Braunstein commends itself to this Court as better reasoned. Congress has provided in FLSA and ADEA for class action remedies, while at the same time expressing (through the opt-in provisions) an intent to limit recovery to those genuinely interested in pursuing their claim. But if [640]*640notice is prohibited potential plaintiffs will be informed of their opt-in opportunities only by chance.

After all the overriding purpose of all class actions (Rule 23, opt-in or otherwise) is to prevent a multiplicity of actions. It would make little sense for Congress to provide for a class action and at the same time cause the suit's existence to be “hidden” from potential class members. Moreover, the concerns expressed in Kinney Shoe as to stirring up litigation and soliciting clients have at least been attenuated by the recent First Amendment cases protecting lawyer advertising and communications with class members. See, Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); Gulf Oil Co. v. Bernard, - U.S. -, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981).4

But as already indicated, the power to provide notice should be exercised with discretion and in appropriate cases. These consolidated actions are now over two years old, and even in the year they have been on this Court’s calendar it has decided a substantial number of discovery controversies. Were those the only relevant factors, this Court might well “opt-out” — that is, deny plaintiffs’ motion.

But shortly after the commencement of these consolidated actions United’s Chairman Richard J. Ferris issued a letter to United’s flight officers (see Appendix A) discussing the Monroe case. That letter may fairly be read as indicating that plaintiffs’ action lacks merit and that United can adequately represent the interests of all non-plaintiff flight officers. Notice to potential class members is therefore important for the added purpose of providing them with a neutral discussion of the nature of, and their rights in, these consolidated actions. To draw from another discipline, sound policy requires, as in the securities field, that the “total mix” of information afforded to potential class members will providé a fair statement of their rights. See, TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976).

Conclusion

Plaintiffs’ motion for leave to send notice to all United flight deck crew members with sixtieth birthdays between April 6, 1978 and February 29, 1984 is granted. United is ordered to provide plaintiffs with the names, addresses and dates of birth of all such persons on or before July 20, 1981. Plaintiffs shall send out the notices promptly thereafter and notify United and the Court of the date of transmittal.

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Bluebook (online)
90 F.R.D. 638, 29 Fair Empl. Prac. Cas. (BNA) 347, 1981 U.S. Dist. LEXIS 13394, 26 Empl. Prac. Dec. (CCH) 32,005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monroe-v-united-air-lines-inc-ilnd-1981.