HERRERA v. UNIFIED MANAGEMENT CORP., (N.D.Ill. 2000)

LEINENWEBER, Judge

INTRODUCTION

Before the court is plaintiff Ronald Herrera's motion to begin notice to the representative plaintiff class under § 16(b) of the Fair Labor Standard's Act. 29 U.S.C. § 216(b). Herrera brings this action pursuant to the ELSA, claiming that he and other similarly situated employees were not properly compensated for overtime work.

The court addresses defendant Reebie Storage Moving Co.'s objections in turn. In response to Reebie's objections, Herrera submitted an amended proposed notice, and Reebie has replied to Herrera's response.

BACKGROUND

According to the Complaint, Herrera was employed by Reebie as a laborer and warehouser. Similarly, the unnamed class plaintiffs are either present or past hourly or salary employees of Reebie who were denied overtime compensation.

DISCUSSION

Reebie argues that Unified Management Corp. should be dismissed from this action. Plaintiff agrees and has deleted references to Unified from its amended Notice. Therefore, Unified is dismissed.

The parties disagree as to the standard that this court should employ in determining whether notice should be sent. On the one hand, Reebie argues that the court should treat this motion as a motion for class certification under Federal Rule of Civil Procedure 23 and utilize the numerosity, commonality, typicality and adequacy test. See Garcia v. Elite Labor Service, No. 95 C 2341, 1996 WL 559958, *2 (N.D. Ill. Sept. 30, 1996) The rationale is that Congress did not intend to create a separate structure for ELSA actions. See Moony v. Aramco Services Co., 54 F.3d 1207, 1212-1216 (5th Cir. 1995)

On the other hand, Herrera argues that the § 16(b) notice process involves two steps. Initially, notice is sent to potential class members. Then, after discovery has taken place, the court determines whether the class should be restricted based on the "similarly situated" requirement of the ELSA. See Lusardi v. Zerox Corp., 118 F.R.D. 351 (D.N.J. 1987).

The logic of the second approach is that, in contrast to class actions, members of the ELSA representative action "opt in,;" therefore, the stricter Rule 23 test is irrelevant and unnecessary because, at this stage, the potential class is uncertain and self selective. See Woods v. New York Life Ins. Co., 686 E.2d 578, 579 (7th Cir. 1982)

Resolution of this debate is unnecessary, however, because even under the more stringent Rule 23 test, Herrera's potential § 16(b) representative action passes muster. After Herrera's Response, Reebie's sole remaining objection is that the potential representative action is not numerous; there are only about thirty potential members. The issue is whether the potential class is "so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). However, courts have held that between thirty and forty members is on the low end but sufficient for class purposes. See Swanson v. American Consumer Indus., Inc., 415 F.2d 1326, 1333 (7th Cir. 1969) (forty members were sufficient for numerosity), Riordan v. Smith Barney, 113 F.R.D. 60, 62 (N.D.Ill. 1986) (approximately twenty-nine members sufficient for numerosity)

Next, Reebie has filed several objections to the wording and content of Herrera's proposed Notice. The amended Notice addresses defendant's objections and sufficiently modifies the notice in the following ways:

(1) The introductory paragraph and "Compensation Issues To Be Resolved" sections have been limited to only databank employees;

(2) A 45-day cutoff has been added to the "How To File The `Notice and Consent' If You Choose To Join."

The "Your Right to Join This Lawsuit" section of Herrera's amended Notice appeals to employees who have worked at Reebie's Databank division "within three years," in order to satisfy the statute of limitations. See 29 U.S.C. § 255(a). Reebie argues that the time period should be to two years because the issue of willfulness, which gives rise to the three-year period, remains unadjudicated.

The court finds that the Notice should reference three years, and, if necessary, the class can later be restricted. It is more efficient to later restrict the class then to later propose, revise through a series of briefs, and send out another notice. See King v. ITT Continental Baking Co., No. 84 C 3410, 1986 WL 2628 (N.D. Ill. Feb. 18, 1996) (notice to ELSA § 16(b) class referenced three years); see also Allen v. Marshall Field Co., 93 F.R.D. 438, 449-50 (N.D. Ill. 1982). Reebie also complains that the three-year reference is unclear; however, Reebie does not specify why. Therefore, the proposed amendment stands.

Herrera includes a section in the amended Notice entitled "Previous `Settlements' or `Agreements' With Defendant Reebie," inviting those who already signed Reebie's Releases to join this lawsuit. Reebie also objects to Herrera's proposed addition with regards to the three-year time period. Based on the above reasoning, the Corrective Notice and Invalidation also stands.

In the amended Notice, the Consent Forms are to be addressed to Herrera's Counsel's Office, in order to prevent overburdening the court and because Herrera's counsel has had consents returned to his office in other ELSA cases. Reebie seeks to have the Consent Forms returned to the Clerk's Office, expressing concern that Herrera's counsel could manipulate the dates of consent.

In Woods, the Seventh Circuit stated that there is "no good reason for apparent judicial sponsorship of the notice." Woods at 581. For example, in King, citing Woods, the court apparently changed the Consent Form return address from the Clerk to a P.O. Box that plaintiff's counsel was to access. King at *4, *7. Accordingly, the return address on the "How To File `Notice of Consent' If You Choose To Join This Suit" stands.

Reebie suggests two additions to the "Your Option of Legal Representation If You Decide To Join This Lawsuit" section. Reebie argues that potential claimants should be informed that if the court denies them back wages that it could also assess costs and expenses against them. Also, the defendant argues that the claimants should be informed that if they hire an attorney, they will be responsible for paying that attorney.

In King, the court refused to warn potential participants that they may be liable for the defendants' costs because "§ 216(b) specifically directs that prevailing plaintiffs should be awarded attorneys' fees and costs; it is silent as to prevailing defendants. The Court finds that inclusion of such a statement would unreasonably chill participation in this action by potential class members." King at *4. The King court also reasoned that "Potential class members interested in retaining the services of plaintiffs' counsel will undoubtedly inquire on their own." Id. Therefore, the language is adequate in the amended Notice.

CONCLUSION

Accordingly, for the reasons stated herein, the motion to begin Notice to Members of Plaintiff Class is granted as amended in Herrera's June 23, 2000 filing. Unified is dismissed.

IT IS SO ORDERED.