Ratliff v. Pason System USA Corp.

196 F. Supp. 3d 699, 2016 U.S. Dist. LEXIS 110369, 2016 WL 4275434
CourtDistrict Court, S.D. Texas
DecidedJuly 21, 2016
DocketCIVIL ACTION NO. 4:15-CV-2376
StatusPublished
Cited by6 cases

This text of 196 F. Supp. 3d 699 (Ratliff v. Pason System USA Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ratliff v. Pason System USA Corp., 196 F. Supp. 3d 699, 2016 U.S. Dist. LEXIS 110369, 2016 WL 4275434 (S.D. Tex. 2016).

Opinion

MEMORANDUM AND ORDER

DENA HANOVICE PALERMO, UNITED STATES MAGISTRATE JUDGE

On June 23, 2016, the Court conditionally certified this suit for unpaid overtime compensation as a collective action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). [Dkt. No. 36.] Now pending before the Court is the parties’ Joint Proposed Order Authorizing Distribution of the “Notice” and “Consent to Join” Forms. [Dkt. No. 36.] The Court held a hearing on the proposed forms on July 6, 2016.

LEGAL STANDARD

Courts have a managerial responsibility to oversee the process by which putative class members are given notice of, and allowed to join, a collective action suit under the FLSA. Hoffmann-La Roche v. Sperling, 493 U.S. 165, 169-70, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). In particular, courts have a duty to supervise the form and content of notices to ensure that potential plaintiffs receive accurate and timely information about the suit. Reyes v. Quality Logging, Inc., 52 F.Supp.3d 849, 851-52 (S.D.Tex.2014) (Saldaña, J.). Although plaintiffs may generally use their preferred language in drafting notices, courts must “ensure that the notice is fair and accurate.” Vargas v. Richardson Trident Co., No. H-09-1674, 2010 WL 730155, at *11 (S.D.Tex. Feb. 22, 2010) (Harmon, J.) (quoting King v. ITT Cont’l Baking Co., No. 84 C 3410, 1986 WL 2628, at *3 (N.D.Ill. Feb. 18, 1986)) (internal quotation marks omitted).

DISCUSSION

The Court has reviewed the parties’ proposed notice and consent forms and finds that two modifications are necessary to ensure that they are fair and accurate.1

1. Language Regarding Opt-in Plaintiffs’ Potential Liability For Court Costs

The proposed notice contains the following language regarding costs that individual opt-in plaintiffs may incur by joining this suit:

If you choose to join this lawsuit, you will be a Plaintiff in the case and you will be bound by any judgment on any claim you have against Pason under the FLSA, whether favorable or unfavorable. That means that, if you win, you may be eligible to share in the monetary award. If you lose, no money will be awarded to you and you may be liable for court costs.

The Court finds the phrase “and you may be liable for court costs” to be “unnecessary and potentially confusing.” Reyes, 52 F.Supp.3d at 854 (quoting Sexton v. Franklin First Fin., Ltd., 2009 WL 1706535, at *12 (E.D.N.Y. June 16, 2009)). There is only a “remote possibility” that such costs will be other than de minimis. Id. (quoting Guzman v. VLM, Inc., No. [701]*70107-CV-1126 JG RER, 2007 WL 2994278, at *8 (E.D.N.Y. Oct. 11, 2007)) (internal quotation marks omitted) (denying defendant’s request that notice include information regarding possibility that opt-in plaintiffs would have to pay court costs). Because most opt-in plaintiffs likely lack extensive legal experience in matters of this sort, the language would “have an in terrorem effect that disproportionately outweighs the likelihood that these costs will occur to any significant magnitude.” Id. at 858 (citing Guzman, 2007 WL 2994278, at *8); accord Romero v. ABCZ Corp., No. 14 CIV. 3653 AT HBP, 2015 WL 2069870, at *4 (S.D.N.Y. Apr. 28, 2015) (plaintiff did not need to add language to notice stating that opt-in plaintiff may “be held hable for costs associated with this lawsuit and for potential counterclaims which could be asserted ... by [defendants”). Numerous courts across the nation have concluded that similar language would undermine the FLSA’s collective-action procedure. See, e.g., Kesley v. Ent. U.S.A. Inc., 67 F.Supp.3d 1061, 1074 (D.Ariz.2014) (rejecting warning that opt-in plaintiffs “would be liable for the costs of the litigation” if defendants won because “[t]he only possible purpose this admonishment could serve is to ‘discourage participation in the lawsuit’ ”) (quoting Green v. Exec. Coach & Carriage, 895 F.Supp.2d 1026, 1030 (D.Nev.2012)); Bath v. Red Vision Sys., Inc., No. 13-02366, 2014 WL 2436100, at *7 (D.N.J. May 29, 2014) (statement highlighting possibility that opt-in plaintiffs would have to pay defense costs had “the potential of chilling participation in the collective action”); Abdul-Rasheed v. Kablelink Commc’ns, LLC, No. 8:13-CV-879-T-24 MAP, 2013 WL 6182321, at *6 (M.D.Fla. Nov. 25, 2013) (warning that opt-in plaintiffs could be liable for costs “would undermine the FLSA’s goal of encouraging full enforcement of statutory rights because the warning might dissuade people from joining the lawsuit”); Carrillo v. Schneider Logistics, Inc., No. CV-11-8557 CAS DTBX, 2012 WL 556309, at *14 (C.D.Cal. Jan. 31, 2012) (noting that “this kind of warning would undermine the FLSA’s goal of encouraging full enforcement of statutory rights”), aff'd, 501 Fed.Appx. 713 (9th Cir.2012); Schwerdtfeger v. Demarchelier Mgmt., Inc., No. 10 CIV. 7557 JGK, 2011 WL 2207517, at *6 (S.D.N.Y. June 6, 2011) (such language “is not necessary, and would likely intimidate putative class members from opting into the case”); Rosario v. Valentine Ave. Disc. Store Co., 828 F.Supp.2d 508, 520 (E.D.N.Y.2011) (rejecting argument that opt-in plaintiffs “should be warned that they could be liable for [defendants’ costs in defending the case if the [defendants ultimately prevail in this matter”); Austin v. CUNA Mut. Ins. Roc., 232 F.R.D. 601, 608 (W.D.Wis.2006) (declining to include similar warning “because the statute is silent with respect to fee shifting for prevailing defendants and because the warning would chill participation in collective actions”). While “authority on this question is decidedly split,” Reyes, 52 F.Supp.3d at 853, the Court finds the aforementioned cases more persuasive and better calculated to effectuate the FLSA’s broad remedial goals.

The Court will therefore strike the phrase “and you may be liable for court costs” from the notice form.

2. Language Regarding Opt-in Plaintiffs’ Choice of Legal Counsel

The proposed notice states the following under the heading “Legal Counsel”:

If you choose to join this lawsuit, you choose to have Plaintiff Ratliffs attorneys represent you. Plaintiff Ratliffs attorneys are:
[Names and contact information for Ratliffs attorneys.]
[702]*702Alternatively, you may consult your own attorney and [sic], if you want to do so, to discuss your options. You are free to consult the files for this case, which are located in the Clerk’s Office of the United States District Court for the Southern District of Texas-Houston Division, 515 Rusk Avenue Houston, TX 77002.

The proposed consent form likewise contains the following language:

3. I agree to have Mr. Ratliffs attorney, Andrew W. Dunlap, Fibich, Leebron, Copeland, Briggs & Josephson, 1150 Bissonnet, Houston, Texas 77005, and Richard J. Burch, Bruckner Burch PLLC, 8 Greenway Plaza, Suite 1500, Houston, Texas 77046, and any other attorneys with whom they may associate, represent me in this lawsuit.

“Informing potential plaintiffs of their right to choose their own counsel is an appropriate element in a notice.” Heaps v.

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196 F. Supp. 3d 699, 2016 U.S. Dist. LEXIS 110369, 2016 WL 4275434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ratliff-v-pason-system-usa-corp-txsd-2016.