1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Malaika Washington, et al., No. CV-21-01318-PHX-MTL
10 Plaintiffs, ORDER
11 v.
12 Freedom of Expression LLC, et al.,
13 Defendants. 14 15 Freedom of Expression, LLC d/b/a Bones Cabaret, Wisnowski Inc. d/b/a Skin 16 Cabaret, Skin Cabaret LLC, and Todd Borowsky (collectively, “Defendants”) own and 17 operate the adult entertainment clubs of Bones Cabaret (“Bones”) and Skin Cabaret 18 (“Skin”) in Scottsdale, Arizona. (Doc. 6 at 3.) Plaintiff Malaika Washington brings suit 19 under the Fair Labor Standards Act (“FLSA”), individually and on behalf of all other 20 similarly situated, against Defendants seeking to recover unpaid wages. (Doc. 1 at 1.) 21 Plaintiff contends that she formerly worked for Defendants as an exotic dancer at Bones 22 and Skin, and that she and putative collective action members were not paid the minimum 23 wages owed to them in violation of 29 U.S.C. § 207(a). (Doc. 23 at 2.) 24 I. 25 The matter is before the Court on Plaintiff’s Motion for Conditional Certification. 26 (Doc. 23.) Plaintiff requests that the Court conditionally certify the following FLSA 27 collective 29 U.S.C. § 216(b): “All current and former exotic dancers who worked for 28 Defendants at any time starting three years before this lawsuit was filed up to the present.” 1 (Doc. 23 at 3.) Plaintiff’s Motion also requests approval of a proposed notice and consent 2 procedure a well as an order from the Court directing Defendants to provide the names, 3 known addresses, phone numbers, dates of birth, email addresses, driver’s license numbers, 4 social security numbers, and dates of employment of the putative collective members. (Id. 5 at 17.) Defendants maintain that the putative collective members are not similarly situated 6 to Plaintiff by virtue of a mandatory arbitration agreement. (Doc. 26 at 2.) Defendants also 7 object to some of Plaintiff’s proposed notice procedures and disclosure requests. (Id. at 6- 8 9.) For the following reasons, the Motion will be granted, in part. 9 II. 10 A. 11 The FLSA provides employees with a private right of action to enforce the minimum 12 wage and overtime provisions within the statute. See 29 U.S.C. § 216(b). The minimum 13 wage provision mandates that covered employers pay employees “not less than” a 14 prescribed statutory minimum. 29 U.S.C. § 207(a)(1). “Any employer who violates the 15 provisions of . . . section 207 . . . shall be liable to the employee or employees affected in 16 the amount of . . . their unpaid minimum wages[.]” Id. § 216(b). A collective action to 17 recover these damages may be brought “against any employer . . . by any one or more 18 employees for and on behalf of [her]self or themselves and other employees similarly 19 situated.” Id. Employees not named in the complaint who wish to join the action must give 20 their consent in writing to the court in which the action is brought. Id. 21 The term “similarly situated” is critical for defining collective action status. Yet, the 22 text of the FLSA does not define the term. Courts have taken a variety of approaches to fill 23 in this gap. In Campbell v. City of Los Angeles, 903 F.3d 1090 (9th Cir. 2018), the Ninth 24 Circuit considered the appropriate standard for district courts to apply when deciding a 25 motion to certify a collective action. The court held that “[p]arty plaintiffs are similarly 26 situated, and may proceed in a collective, to the extent they share a similar issue of law or 27 fact material to the disposition of their FLSA claims.” Id. at 1117. Plaintiffs’ “burden is 28 light,” but conditional certification is “by no means automatic.” Colson v. Avnet, Inc., 687 1 F. Supp. 2d 914, 925 (D. Ariz. 2010). “The level of consideration is . . . akin to a 2 plausibility standard.” Campbell, 903 F.3d at 1109. District courts are directed to focus on 3 “similarities among the party plaintiffs” instead of scrutinizing differences. Id. at 1117. “If 4 the party plaintiffs’ factual or legal similarities are material to the resolution of their case, 5 dissimilarities in other respects should not defeat collective treatment.” Id. at 1114. The 6 similarly situated requirement may be satisfied by showing that a plaintiff and the putative 7 members of the collective action were subject to a common decision, policy, or plan of the 8 employer. Id. at 1102. “The court’s determination at this first step is based primarily on the 9 pleadings and any affidavits submitted by the parties.” Kesley v. Entm’t U.S.A. Inc., 67 10 F. Supp. 3d 1061, 1065 (D. Ariz. 2014) (internal quotations omitted). 11 Once the district court preliminarily certifies a FLSA class, a notice is disseminated 12 to putative members of the collective action “advising them that they must affirmatively 13 opt in to participate in the litigation.” Id. at 1109. Following discovery, “[t]he employer 14 can move for ‘decertification’ of the collective action for failure to satisfy the ‘similarly 15 situated’ requirement in light of the evidence produced to that point.” Id. 16 B. 17 The Court finds that Plaintiff’s proposed collective of all current and former exotic 18 dancers who worked for Defendants at any time since July 29, 2021 satisfies the 19 requirement that collective members be similarly situated with one another. According to 20 Plaintiff, she and the putative collective members “are similarly if not identically, situated 21 with respect to their job requirements and compensation scheme.” (Doc. 23 at 9.) 22 Specifically, Plaintiff alleges that she shared the same job title and duties with the putative 23 collective, that Defendants misclassified Plaintiff and the putative collective as 24 independent contractors, and that Defendants’ pay practices were the same as to all putative 25 collective members. (Id.) These allegations provide material factual and legal similarity 26 among the putative collective. Namely, whether Defendants’ polices or practices resulted 27 in Plaintiff and the putative collective being misclassified as independent contractors and 28 thus underpaid. See Weeks v. Matrix Absence Mgmt. Inc., 494 F. Supp. 3d 653, 658-59 (D. 1 Ariz. 2020) (“It necessarily follows that, where Plaintiffs have the same job duties, so too 2 were they all subject to the same decision, policy, or plan.”) (internal marks and citation 3 omitted). 4 Defendants object to finding the proposed collective similarly situated on the 5 grounds that many of the collective members have purportedly entered into a premise use 6 license agreement containing a mandatory arbitration clause. (Doc. 26 at 2.) Defendants 7 maintain that this would render many collective members ineligible for the collective 8 action. (Id. at 4-5.) Defendants’ concerns highlight that “neither the remedial purpose of 9 the FLSA, nor the interests of judicial economy, would be advanced if [the court] were to 10 overlook facts which generally suggest that a collective action is improper.” Longnecker v. 11 Am. Ex. Co., No. 14-CV-0069-HRH, 2014 WL 4071662, at *4 (D. Ariz. Aug 18, 2014). 12 But given the evidence at this stage, the Court cannot conclude that the mandatory 13 arbitration agreements are enforceable let alone that they predominate the putative 14 collective members.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Malaika Washington, et al., No. CV-21-01318-PHX-MTL
10 Plaintiffs, ORDER
11 v.
12 Freedom of Expression LLC, et al.,
13 Defendants. 14 15 Freedom of Expression, LLC d/b/a Bones Cabaret, Wisnowski Inc. d/b/a Skin 16 Cabaret, Skin Cabaret LLC, and Todd Borowsky (collectively, “Defendants”) own and 17 operate the adult entertainment clubs of Bones Cabaret (“Bones”) and Skin Cabaret 18 (“Skin”) in Scottsdale, Arizona. (Doc. 6 at 3.) Plaintiff Malaika Washington brings suit 19 under the Fair Labor Standards Act (“FLSA”), individually and on behalf of all other 20 similarly situated, against Defendants seeking to recover unpaid wages. (Doc. 1 at 1.) 21 Plaintiff contends that she formerly worked for Defendants as an exotic dancer at Bones 22 and Skin, and that she and putative collective action members were not paid the minimum 23 wages owed to them in violation of 29 U.S.C. § 207(a). (Doc. 23 at 2.) 24 I. 25 The matter is before the Court on Plaintiff’s Motion for Conditional Certification. 26 (Doc. 23.) Plaintiff requests that the Court conditionally certify the following FLSA 27 collective 29 U.S.C. § 216(b): “All current and former exotic dancers who worked for 28 Defendants at any time starting three years before this lawsuit was filed up to the present.” 1 (Doc. 23 at 3.) Plaintiff’s Motion also requests approval of a proposed notice and consent 2 procedure a well as an order from the Court directing Defendants to provide the names, 3 known addresses, phone numbers, dates of birth, email addresses, driver’s license numbers, 4 social security numbers, and dates of employment of the putative collective members. (Id. 5 at 17.) Defendants maintain that the putative collective members are not similarly situated 6 to Plaintiff by virtue of a mandatory arbitration agreement. (Doc. 26 at 2.) Defendants also 7 object to some of Plaintiff’s proposed notice procedures and disclosure requests. (Id. at 6- 8 9.) For the following reasons, the Motion will be granted, in part. 9 II. 10 A. 11 The FLSA provides employees with a private right of action to enforce the minimum 12 wage and overtime provisions within the statute. See 29 U.S.C. § 216(b). The minimum 13 wage provision mandates that covered employers pay employees “not less than” a 14 prescribed statutory minimum. 29 U.S.C. § 207(a)(1). “Any employer who violates the 15 provisions of . . . section 207 . . . shall be liable to the employee or employees affected in 16 the amount of . . . their unpaid minimum wages[.]” Id. § 216(b). A collective action to 17 recover these damages may be brought “against any employer . . . by any one or more 18 employees for and on behalf of [her]self or themselves and other employees similarly 19 situated.” Id. Employees not named in the complaint who wish to join the action must give 20 their consent in writing to the court in which the action is brought. Id. 21 The term “similarly situated” is critical for defining collective action status. Yet, the 22 text of the FLSA does not define the term. Courts have taken a variety of approaches to fill 23 in this gap. In Campbell v. City of Los Angeles, 903 F.3d 1090 (9th Cir. 2018), the Ninth 24 Circuit considered the appropriate standard for district courts to apply when deciding a 25 motion to certify a collective action. The court held that “[p]arty plaintiffs are similarly 26 situated, and may proceed in a collective, to the extent they share a similar issue of law or 27 fact material to the disposition of their FLSA claims.” Id. at 1117. Plaintiffs’ “burden is 28 light,” but conditional certification is “by no means automatic.” Colson v. Avnet, Inc., 687 1 F. Supp. 2d 914, 925 (D. Ariz. 2010). “The level of consideration is . . . akin to a 2 plausibility standard.” Campbell, 903 F.3d at 1109. District courts are directed to focus on 3 “similarities among the party plaintiffs” instead of scrutinizing differences. Id. at 1117. “If 4 the party plaintiffs’ factual or legal similarities are material to the resolution of their case, 5 dissimilarities in other respects should not defeat collective treatment.” Id. at 1114. The 6 similarly situated requirement may be satisfied by showing that a plaintiff and the putative 7 members of the collective action were subject to a common decision, policy, or plan of the 8 employer. Id. at 1102. “The court’s determination at this first step is based primarily on the 9 pleadings and any affidavits submitted by the parties.” Kesley v. Entm’t U.S.A. Inc., 67 10 F. Supp. 3d 1061, 1065 (D. Ariz. 2014) (internal quotations omitted). 11 Once the district court preliminarily certifies a FLSA class, a notice is disseminated 12 to putative members of the collective action “advising them that they must affirmatively 13 opt in to participate in the litigation.” Id. at 1109. Following discovery, “[t]he employer 14 can move for ‘decertification’ of the collective action for failure to satisfy the ‘similarly 15 situated’ requirement in light of the evidence produced to that point.” Id. 16 B. 17 The Court finds that Plaintiff’s proposed collective of all current and former exotic 18 dancers who worked for Defendants at any time since July 29, 2021 satisfies the 19 requirement that collective members be similarly situated with one another. According to 20 Plaintiff, she and the putative collective members “are similarly if not identically, situated 21 with respect to their job requirements and compensation scheme.” (Doc. 23 at 9.) 22 Specifically, Plaintiff alleges that she shared the same job title and duties with the putative 23 collective, that Defendants misclassified Plaintiff and the putative collective as 24 independent contractors, and that Defendants’ pay practices were the same as to all putative 25 collective members. (Id.) These allegations provide material factual and legal similarity 26 among the putative collective. Namely, whether Defendants’ polices or practices resulted 27 in Plaintiff and the putative collective being misclassified as independent contractors and 28 thus underpaid. See Weeks v. Matrix Absence Mgmt. Inc., 494 F. Supp. 3d 653, 658-59 (D. 1 Ariz. 2020) (“It necessarily follows that, where Plaintiffs have the same job duties, so too 2 were they all subject to the same decision, policy, or plan.”) (internal marks and citation 3 omitted). 4 Defendants object to finding the proposed collective similarly situated on the 5 grounds that many of the collective members have purportedly entered into a premise use 6 license agreement containing a mandatory arbitration clause. (Doc. 26 at 2.) Defendants 7 maintain that this would render many collective members ineligible for the collective 8 action. (Id. at 4-5.) Defendants’ concerns highlight that “neither the remedial purpose of 9 the FLSA, nor the interests of judicial economy, would be advanced if [the court] were to 10 overlook facts which generally suggest that a collective action is improper.” Longnecker v. 11 Am. Ex. Co., No. 14-CV-0069-HRH, 2014 WL 4071662, at *4 (D. Ariz. Aug 18, 2014). 12 But given the evidence at this stage, the Court cannot conclude that the mandatory 13 arbitration agreements are enforceable let alone that they predominate the putative 14 collective members. In fact, Defendants concede that they cannot find any documentation 15 or paperwork demonstrating that Plaintiff signed the relevant premise use license 16 agreement. (Doc. 26 at 5.) There is nothing to suggest that other putative collective 17 members are not in the same position as Plaintiff with respect to the existence of their 18 premise use license agreements. Nonetheless, the Court will only certify a conditional class 19 of those putative class members who are found to not be bound by an enforceable 20 arbitration clause. 21 III. 22 Plaintiff next moves for the Court to approve of a comprehensive notice and consent 23 plan. (Doc. 23 at 14.) In sum, Plaintiff requests that the Court: [i] “approve of the Notice 24 of Rights and Consent form”; [ii] approve “that the notice and consent forms be mailed by 25 first class mail, text message and by electronic mail to all current and former dancers 26 employed by Defendants at any time from three years prior to the granting of this Motion 27 to present”; [iii] allow Plaintiff’s counsel to “hire a third-party class action administration 28 company to oversee the mailing of the notice and forms”; [iv] allow Plaintiff “to send text 1 message notifications to the putative class with a link to a website containing the notice 2 form”; [v] allow the putative collective the option “to exercise their consent forms online 3 through an electronic signature service”; [vi] permit notice to be twice sent to the putative 4 class members – “first within 14 days of receiving the class list and a second time 30 days 5 after, but only to class members who have not joined”; and [vii] order Defendants to 6 produce, in a computer-readable format, the “names, known addresses, phone numbers, 7 dates of birth, email addresses, driver’s license numbers, social security numbers, and dates 8 of employment for” all putative collective members. (Id. at 14-17.) 9 “In exercising the discretionary authority to oversee the notice-giving process, 10 courts must be scrupulous to respect judicial neutrality. To that end, trial courts must take 11 care to avoid even the appearance of judicial endorsement of the merits of the action.” 12 Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 174 (1989). Courts must carefully avoid 13 authorizing a notice procedure that amounts to “the solicitation of claims.” Id. Here, 14 because none of the language threatens the appearance of a judicial endorsement of the 15 merits, the Court approves of Plaintiff’s proposed collective action Notice (Doc. 23-3) and 16 the Consent to Join form (Doc. 23-4) as fair and accurate. See Hoffman-La Roche, 493 U.S. 17 at 170. 18 Notice by regular mail is a standard form of notice for putative FLSA collective 19 action members. Notice by email is also warranted. Email has become a reliable method of 20 business communication and is acceptable here. See Weeks, 494 F. Supp. 3d at 659. 21 Reminder notice is likewise a standard notice procedure in collective action cases, given 22 that the FLSA requires putative collective members to opt-in. See Harris v. Vector Mktg. 23 Corp., 716 F. Supp. 2d 835, 847 (N.D. Cal. 2010). The Court will permit Plaintiff to send 24 a reminder notice to putative collective members who do not respond to the initial notice. 25 The Court agrees with Plaintiff in finding that notification via text message is 26 warranted here given the transient nature of many of the putative class members. As 27 Plaintiff points outs, Defendants claim not to have email addresses for all the putative 28 collective members, thus text notification is neither duplicative nor overly intrusive. See 1 Shoults v. G4s Secure Sols. (USA) Inc., No. CV-19-02408-PHX-GMS, 2020 WL 8674000, 2 at *4 (D. Ariz. July 31, 2020) (allowing notification via text message and email). The Court 3 will also allow putative collective members to exercise their consent forms online via an 4 electronic signature service. In its discretion, the Court finds that the hiring of a third-party 5 class action administration company to oversee the notice and consent mailing is not 6 unreasonable. Thus, Plaintiff will be permitted to do so. 7 While the Court will order Defendants to disclose some of Plaintiff’s requested 8 identifying information, much of Plaintiff’s request is overly broad and unnecessarily seeks 9 sensitive information. The Court agrees with Defendants that there is no legitimate reason 10 for Plaintiff to obtain the social security numbers, dates of birth, or driver’s license numbers 11 for any of the putative collective members. 12 IV. 13 Accordingly, IT IS ORDERED 14 1. Plaintiff’s Motion for Conditional Certification (Doc. 23) is granted to the 15 extent that the following FLSA collective action is certified: All current and former exotic 16 dancers who worked for Freedom of Expression, LLC d/b/a Bones Cabaret, Wisnowski 17 Inc. d/b/a Skin Cabaret, Skin Cabaret LLC, and Todd Borowsky on or after July 29, 2018. 18 2. Plaintiff’s Motion, to the extent it seeks approval of the proposed notice and 19 consent procedures, is granted in part and denied in part. 20 a. Defendants shall, within fourteen (14) days of this Order, provide 21 to Plaintiff’s counsel, in Excel format (.xlxs), the names, known addresses, phone 22 numbers, email addresses, and dates of employment of all putative collective 23 members so that Plaintiff may notify them of the collective action. 24 b. Plaintiff’s counsel may, within fourteen (14) days of receiving 25 Defendants’ disclosure, send, by U.S. Mail, email message, and text message a 26 copy of the Court-approved Notice and Consent Form to all putative collective 27 members. 28 c. The putative collective members shall have ninety (90) days from 1 the date of this Order to return their signed Consent forms for filing with the Court. 2 d. Plaintiffs counsel may, within thirty (30) days of receiving 3 Defendants’ disclosure, send a follow-up email, postcard, or text message to those 4 putative collective members who did not respond to the initial notice. 5 3. All other motions remain pending. (Docs. 45, 46.) 6 Dated this 30th day of September, 2022. 7 Wichal T. dh urgl Michael T. Liburdi 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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