United States District Court, M.D. Tennessee, Nashville Division
JOHN ELMY, individually and on behalf of all other similarly situated persons, Plaintiffs,
WESTERN EXPRESS, INC., et al., Defendants.
FRENSLEY MAGISTRATE JUDGE
WILLIAM L. CAMPBELL, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiffs' Memorandum of Law in
Support of Plaintiffs' Motion for Approval of Their
Proposed Notice to be Issued to the Class (Doc. No. 189) and
Defendants' Statement as to Content and Distribution of
Opt-In Notice Documents. (Doc. No. 188). For the reasons
stated below, the Court will approve Plaintiffs' proposed
Notice and Consent Forms (Doc. Nos. 189-1; 189-3) as follows:
The Opt-In Notice and Consent Form
collective action hinges on “employees receiving
accurate and timely notice concerning [its] pendency ... so
that they can make informed decisions about whether to
participate.” Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 170 (1989). Plaintiffs'
proposed notice and consent forms (Doc. No. 189-1) appear to
be “timely, accurate, and informative, ” as
required. See id. at 172. Plaintiffs' proposed
notice clearly informs putative class members of their rights
and how they can elect to participate in the action. The
notice provides notice of the pendency of the action and
accurately describes the plaintiffs' legal claims. The
notice also accurately states that the employer is defending
against the claims, but that retaliation and discrimination
for participation in an FLSA action are prohibited by law.
See 29 U.S.C. § 215(a)(3) (anti-retaliation
propose a 180-day opt-in period because the class consists of
truckers who are on the road and away from home for months at
a time. Defendants object to a 180-day opt-in period as being
too long, arguing in favor of a 60-day opt-in period instead.
The Court concludes that the opt-in period should be 120
days. That period will allow ample time for interested
individuals to join the lawsuit while also moving the case
forward. Accordingly, Plaintiffs' proposed notice shall
be revised to reflect that potential class members must
return the consent form to Plaintiffs' counsel within 120
days of the date that this Memorandum and accompanying Order
are entered. In addition, Plaintiffs' counsel must ensure
that all consent forms are filed with the Court within 150
days of the entry of this Memorandum and accompanying Order.
object to the first sentence of Plaintiffs' proposed
notice, which states: “Enclosed is a Consent form
allowing you to join a lawsuit that has been filed by a group
of Plaintiff Drivers on behalf of owner operators seeking
unpaid wages and liquidated damages under the Fair Labor
Standards Act (FLSA).” (See Doc. No. 189-1).
Defendants argue this sentence is inaccurate because John
Elmy has been the only Named Plaintiff during the case. The
Court agrees and orders that the first sentence of
Plaintiffs' proposed notice shall be revised to state:
“Enclosed is a Consent form allowing you to join a
lawsuit that has been filed by a former Western Express owner
operator who leased a truck from New Horizons; this lawsuit
was filed on behalf of the owner operator and other similarly
situated owner operators seeking unpaid wages and liquidated
damages under the Fair Labor Standards Act (FLSA).”
disagree with the proposed notice period of “August 25,
2014 to the present”, arguing the notice period should
be from March 15, 2015 to April 24, 2019. (See Doc.
No. 188 at 3). The Court finds that Plaintiffs' proposed
notice period of “August 25, 2014 to the present”
is appropriate at this stage. Accordingly, Defendants'
objection to the proposed notice period is overruled.
also take issue with the last sentence in the “What
this lawsuit is about” paragraph of Plaintiffs'
proposed notice, which states: “Western denies that it
violated the law and the Judge who will hear the case has not
made any decision yet about who is right.” (Doc. No.
189-1). Defendants request that they be allowed to state
their defenses as they have done in their competing proposed
notice. (Doc. No. 188-1 at 2-4). The Court notes that purpose
of the notice is to provide potential plaintiffs with a
neutral discussion of the nature of the action. Heaps v.
Safelite Sols., LLC, No. 2:10 CV 729, 2011 WL 1325207,
at *9 (S.D. Ohio Apr. 5, 2011) (citing Monroe v. United
Air Lines, Inc., 90 F.R.D. 638, 640 (D.C.Ill.1981)). To
that end, the last sentence in the “What this lawsuit
is about” paragraph of Plaintiffs' proposed notice
(Doc. No. 189-1) shall be revised to state: “Western
denies Plaintiffs' allegations that the owner operator
drivers are employees. Both Western and New Horizons deny
that they have violated the FLSA. The Court has taken no
position at this juncture in the case regarding the merits of
the Plaintiffs' claims or of Defendants'
defenses.” See e.g., Thomas v. Papa
John's Int'l, Inc., No. 1:17CV411, 2019 WL
4743637, at *6 (S.D. Ohio Sept. 29, 2019) (finding any
additional, more specific information regarding
Defendant's defenses unnecessary where the proposed
notice already included a statement that Defendant denied
Disclosure of Potential Plaintiffs
facilitate notice, Plaintiffs request the Court to direct
Defendants to produce to Plaintiffs' counsel the names,
mailing addresses, email addresses, and an employee number or
unique identifier for all putative class members, and for the
telephone numbers and last four digits of social security
numbers for those members whose notices are returned as
undeliverable. (Doc. No. 189 at 12-15). Defendants disagree
with the need to provide Plaintiffs with potential class
members' telephone numbers and last four digits of their
social security numbers at this time (Doc. No. 188 at 12),
and contend that a third-party administrator, not
Plaintiffs' counsel, should issue the notice in this
case. (Doc. No. 188 at 5-6; Doc. No. 133 at 17).
Court finds that employment of a third-party administrator to
issue notice in this case is unnecessary. See Crosby v.
Stage Stores, Inc., 348 F.Supp.3d 742, 751 (M.D. Tenn.
2018) (“In regards to whether a third-party
administrator, rather than Plaintiffs' counsel, should
provide notice and protect the potential plaintiffs'
confidential information, the Court finds that employment of
a third party administrator is unnecessary.”).
Defendants shall produce to Plaintiffs' counsel the
names, mailing addresses, email addresses, and an employee
number or unique identifier for all putative class members.
Defendants shall deliver this information to Plaintiffs'
counsel, in an electronic spreadsheet format, within seven
days of the date that this Memorandum and accompanying Order
at this time, and in the interest of privacy, the Court will
not require Defendants to disclose social security or
telephone numbers for putative class members. See Evans
v. Caregivers, Inc., No. 3:17-cv-0402, 2017 WL 2212977,
at *7 (M.D. Tenn. May 19, 2017) (approving disclosure of
potential opt-in plaintiff's mailing and email addresses
but declining in “the interest of privacy” to
order defendants to produce potential opt-in plaintiff's