Summary
taking steps to remedy a confusing letter from defense counsel
Summary of this case from Saenz v. Rod's Prod. Servs., LLCOpinion
Case No. 09-1366-JTM-DWB.
February 11, 2010
ORDER
On February 8, 2010, the Court received a letter from counsel for Defendant, PPG Industries, Inc. concerning a communication with Lowe's Team Territory Managers (TM's) by an individual who is not a named party or opt-in party in this case. (Doc. 34.) The communication at issue is a letter dated January 21, 2010 from Geoff Hudson to "fellow TM's." (the Hudson Letter) (Doc. 34-1.) At the scheduling conference in this case which was held on February 9, 2010, the Court discussed the contents of this letter with counsel for all parties. After hearing statements of all counsel the Court enters the following Order in this case authorizing a corrective notice in the form attached to this Order.
The Court's Role in Managing this FLSA Case
In Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989), the Supreme Court considered whether district courts may play any role in proscribing the terms and conditions of communications from the named plaintiffs in a ADEA case to the potential members of the class on whose behalf the collective action was brought. While that case involved the ADEA, the Court noted that the ADEA incorporated the provisions of the FLSA, 29 U.S.C. § 216(b), concerning collective actions. The Court emphasized that the benefits of collective actions "depend on employees receiving accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate." 493 U.S. at 170. To accomplish this, section 216(b) "must grant the court the requisite procedural authority to manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure." 493 U.S. at 170. A district court meets its management duty in a collective action by monitoring preparation and distribution of the notice, in order to assure that it is "timely, accurate and informative," and everyone benefits from a procedure where disputes about the content of the notice are resolved before any notices are distributed to potential class members. 493 U.S. at 172.In considering the content of a proposed notice, the court is not bound by the notice agreed to by the parties, but has the authority to approve or disapprove a proposed collective action notice. Carson v. Bank of Blue Valley, Inc., No. 04-2507-CM, 2005 WL 4708215 * 1 (D. Kan., Sep 19, 2005). The above procedure is precisely what was followed in this case when the court reviewed the proposed notice and authorized it to be sent to TMs who were potential members of the class and who had the right to seek to opt-in to this collective action. See Doc. 18.
The Unauthorized Communication with TMs
After review of the February 8, 2010 letter from defendant's counsel, it appears that the Hudson Letter is an unauthorized communication with at least some of the TM's who were to receive The Notice of Collective Action Lawsuit which was authorized by this court. It appears that Hudson is a named party plaintiff in later lawsuit filed against defendant, PPG Industries, Inc. in the case of Seymour v. PPG Industries, Inc., Case No. 2:09-cv-01707-JFC (W.D. Pa.), and that his letter was sent without any prior approval or consideration by the District Court in the Western District of Pennsylvania. In fact, the court has been advised that PPG Industries, Inc. has filed a motion with the court in Pennsylvania concerning this unauthorized communication with potential class members.
The Corrective Notice
After review of the Hudson Letter, the court believes that the letter has the potential to create confusion among the TMs who received The Notice of Collective Action Lawsuit in this case. In fact, there is a strong indication that the letter has been a contributing factor in the decision of at least one opt-in plaintiff to withdraw his election to opt-in to the present lawsuit. See Doc. 29 (Withdrawal of Consent to Become a Party Plaintiff by Michael P. McMahon). Because of the likelihood of confusion to those TMs who received the Notice in this case, the court finds that a Corrective Notice should be sent to all TMs who previously were sent notices in this case. See Bullock v. Automobile Club of So. Cal., No. SA CV01-731-GlT)ANX, 2002 WL 432003 * 2 (C.D. Cal., Jan 28, 2002).
In drafting the attached Corrective Notice, the court is mindful that in exercising the discretionary authority to oversee the notice-giving process, the court must be scrupulous to respect judicial neutrality and to avoid even the appearance of judicial endorsement of the merits of the action. Hoffman-La Roche, Inc. v. Sperling, 493 U.S. at 174. See also, Manual for Complex Litigation, Third, § 30.24. Accordingly, the court is unable to comment on the substance of the alleged misrepresentations in the Hudson Letter which were discussed by defendant's counsel in the letter of February 6, 2010 at this time. The TM's receiving the Corrective Notice should be advised, however, that the statements in the Hudson Letter are wholly unsupported in the letter itself and that the statements have been made without any review or consideration of their accuracy or truthfulness by the U.S. District Court for the Western District of Pennsylvania or by the court in this case.
IT IS THEREFORE ORDERED that Defendant, PPG Industries, Inc. forward a copy of the Corrective Notice of Collective Action Lawsuit which is attached to this Order to all TMs who were sent copies of the initial Notice of Collective Action Lawsuit in this case. Upon completion of this mailing, counsel shall file a notice of service stating the date of such mailing.
CORRECTIVE NOTICE
You may have received a letter in January 2010 from an individual named Geoff Hudson regarding this lawsuit (the "Hudson Letter"). The letter claimed that it was clarifying issues regarding lawsuits against PPG Industries, Inc. ("PPG"). Based upon the Court's independent review of the Hudson Letter, however, the Court has determined that the letter may be inaccurate and misleading and may be confusing to TM's who have previously received the Notice of Corrective Action that was approved by this Court . . . To clarify your rights and to clear up any confusion or misunderstanding, the Court has ordered this Corrective Notice to be sent to you.
NATURE OF THIS ACTION
This lawsuit was brought to determine whether individuals employed as Lowe's Team Territory Managers ("Territory Managers") are properly classified as exempt from the overtime provisions of the Fair Labor Standards Act ("FLSA"). The Court's determination will depend on whether Plaintiff, and the individuals who consent to join this action as party plaintiffs, meet one or more of the defined exemptions under the FLSA. Plaintiff contends that Territory Managers do not qualify as exempt and are therefore entitled to overtime pay. PPG contends that Territory Managers are paid a salary for all hours worked and that they are properly classified as exempt.
On January 14, 2010, the Court granted "conditional certification" of this action and ordered that notice be mailed to current and former Territory Managers, inviting them to join this action as party plaintiffs. The Court approved the content of the notice and consent to join forms. The Hudson Letter attempts to arouse suspicion by noting that the notice was mailed from Pittsburgh but included the Kansas return address of plaintiff's counsel. In fact, the Court's order required PPG to mail the notice and to subsequently file a certificate with the Court stating that the mailing had in fact occurred. PPG agreed to use plaintiff's counsel's return address on the mailing so that plaintiff's counsel could assume responsibility for notices that were returned as undeliverable by the Postal Service.
THE HUDSON LETTER
The Hudson Letter also contains several other claims or suggestions: (1) that it was somehow improper for PPG to inform current Territory Managers that they would soon be receiving a mailing regarding this lawsuit and that the company would not retaliate against them based upon their decision whether to join the lawsuit; (2) that PPG will have an unfair advantage in this case because this Court interprets the exempt status of individuals under the FLSA more broadly than other courts; (3) that Courts in the Tenth Circuit, including this Court, calculate damages using a formula that would pay out one-third of what damages would be in the Pennsylvania court in which the author's action is pending; and (4) that plaintiff's counsel does not practice employment law and that it lacks the resources or the capabilities to cover the workload of a nationwide class action.
You should be aware that all of these suggestions and statements are wholly unsupported by any factual or legal basis in the letter and are being made without any prior review or approval of either the United States District Court for the Western District of Pennsylvania or the United States District Court for the District of Kansas concerning the truthfulness or accuracy of the allegations and suggestions. They are nothing more than the unsupported opinions of the letter writer.
Because of the procedure concerning collective actions, the Court is not in a position at this stage of the proceedings to make a formal ruling concerning the truthfulness or accuracy of the statements in the Hudson letter, and is not in a position to express any opinion with respect to the comparative qualifications of plaintiff's counsel in this case and the Pennsylvania lawsuit, or any other lawyer. Only you can decide whether to opt-in to this present action and whether to retain counsel and, if so, which counsel to retain. In making those decisions, however, you should make every effort to ascertain whether communications you receive that have not been approved and authorized by the Court are truthful and accurate.
COMMUNICATIONS WITH POTENTIAL CLASS MEMBERS
You are not prohibited from communicating directly with other potential members of this collective action. However, you should be wary of any communications you receive that have not been authorized by this Court or by any other Court in which a similar lawsuit has been filed. If you receive any further unauthorized communications about this lawsuit, please inform plaintiff's counsel:
Ray E. Simmons and Mark G. Ayesh
Ayesh Law Offices
8100 East 22nd Street North
Building 2300, Suite 2
Wichita, KS 67278
Phone: (316) 682-7381
Fax: (316) 682-1729
E-mail: rsimmons@ayesh.kscoxmail.com
Notifying plaintiff's counsel of such communications will serve to protect your rights and the rights of all potential members of this collective action, as well as to respect this Court's ability to preside over an action pending before it.
If you have questions about this lawsuit or your rights, you may contact class counsel authorized by the Court using the contact information set forth above, or consult another attorney of your choosing.