JOURNAL ENTRY AND OPINION
MELODY J. STEWART, J.
{¶ 1} Defendant-appellant, Edward Hill, appeals his convictions and sentences for attempted burglary and criminal damaging following a bench trial in the Cuyahoga County Court of Common Pleas. For the reasons that follow, we affirm appellant's convictions, but vacate the restitution order.
{¶ 2} Appellant's convictions resulted from an incident that occurred on February 29, 2009 at the home of Sharonda Sherman in Maple Heights. Sherman testified that she and appellant had been involved in an on-again, off-again romantic relationship. The night of the incident, appellant was out drinking with his cousin. He called and sent text messages to Sherman multiple times from the bar asking her to come out and join him, but she refused.
{¶ 3} At about 4:30 a.m., appellant went to Sherman's house and began yelling for her to let him in. When she did not respond, appellant pulled open the screen door on the side of the house, damaging the mechanism. He then tried to kick in the side door, marking the door, and damaging the doorjamb. He tore out the screen on Sherman's bedroom window with a rock and scraped the window. He moved to the front door of the house where he shattered the glass on the storm door and broke one of the window panels in the front door. This activated the home security system and set off an alarm. Appellant fled. The security service notified the police and advised Sherman to do the same. Maple Heights police responded and took photographs of the damage. When appellant was later questioned by the police, he initially denied involvement but later admitted, in a written statement, that he had been out drinking that night and could not remember what happened.
{¶ 4} Appellant was indicted on charges of attempted aggravated burglary, attempted burglary, criminal damaging, and telecommunications harassment. The trial court dismissed the attempted aggravated burglary charge, pursuant to Crim. R. 29, and found appellant not guilty of telecommunications harassment. The court found appellant guilty of the lesser included offense of attempted burglary under R.C. 2923.02 and R.C. 2911.12(A)(4), a felony of the fifth degree, and of criminal damaging, a misdemeanor. At sentencing, the trial court imposed a one-year community control sanction and ordered appellant to make restitution of $100 to the victim for the damage to her house. Appellant timely appeals raising three errors for review.
{¶ 5} In his first assignment of error, appellant argues that there was insufficient evidence to support his conviction for attempted burglary. When reviewing the sufficiency of the evidence to support a criminal conviction, this court examines the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
{¶ 6} For the attempted burglary conviction, the state had to prove that appellant attempted, "by force, stealth, or deception," to "trespass in a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present." A trespass occurs when a person, without privilege to do so, knowingly enters or remains on the land or premises of another. See R.C. 2911.21. Appellant argues that he cannot be convicted of this offense because he did not enter the house and there is no evidence that he had any intention of entering the house.
{¶ 7} Intent is determined by the surrounding facts and circumstances. State v. Smith, 8th Dist. No. 84292, 2004-Ohio-6111, at ¶ 20, quoting State v. Huffman (1936), 131 Ohio St. 27, 1 N.E.2d 313, paragraph four of the syllabus. It is apparent from the evidence that appellant intended to enter the house. Ms. Sherman testified that appellant yelled at her to let him into the house, but she did not want to do so. She described appellant running back and forth between the window of her bedroom and the side door. The investigating police officer testified to the damage appellant did to the doors and windows. Photographs of the house show the boot prints appellant left on the side door and the doorjamb when he tried to kick in the door. The photographs show the shattered glass from the front storm door and the broken window panel on the front security door. Ms. Sherman and the officer testified to finding glass inside the house. Ms. Sherman testified that appellant only stopped his efforts to enter when the house alarm sounded. This evidence, if believed, demonstrates that appellant, by force, attempted to enter Ms. Sherman's house without privilege to do so. Construing the evidence in the state's favor, as we must for this review, supports a finding that appellant attempted to commit a violation of R.C. 2911.12(A)(4). Accordingly, appellant's first assignment of error is overruled.
{¶ 8} In his second assignment of error, appellant contends that the trial court erred in not merging his convictions for attempted burglary and criminal damaging. He argues that the two offenses are allied offenses of similar import that were not committed with a separate animus, and therefore, pursuant to R.C. 2941.25 he may be charged with both offenses but convicted of only one. Appellant acknowledges that in State v. Smith, 8th Dist. No. 84292, 2004-Ohio-6111, this court expressly held that attempted burglary and criminal damaging are not allied offenses of similar import. However, he maintains that this decision is no longer valid in light of the Ohio Supreme Court's decision in State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181. He argues that the elements of the two offenses correspond to such a degree that the commission of criminal damaging results in an attempted burglary.
{¶ 9} In Cabrales, the court held that in determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), courts need not apply a strict textual comparison to determine whether the elements exactly align. Instead, courts must compare the elements of offenses in the abstract; i.e., without considering the evidence in the case, but the elements of the two offenses need not align exactly. The court stated, "if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import." Id. at ¶ 26.
{¶ 10} In Smith, this court compared the elements of the two offenses in the abstract and found that, "it is apparent that the elements do not correspond to such a degree that the commission of one offense would result in the commission of the other offense. One can trespass on another's property without damaging that property. Conversely, one can damage another's property without satisfying the element of trespass." Smith at ¶ 27. Therefore, under Cabrales, this court's prior analysis remains sound. Attempted burglary and criminal damaging are not allied offenses of similar import and, therefore, appellant could be convicted of both. Appellant's second assignment of error is overruled.
{¶ 11} In his third assignment of error, appellant contends that the trial court erred in ordering restitution for amounts he had already paid. He argues that the court erroneously ordered restitution in the amount of $100 when Ms. Sherman's testimony establishes that he had previously paid her $100 for the damage.
{¶ 12} Pursuant to R.C. 2929.18, the trial court may order restitution by the offender to the victim in an amount based upon the victim's economic loss. "To establish the amount of restitution within a reasonable certainty, there must be some competent, credible evidence." State v. Carrino (May 11, 1995), 8th Dist. No. 67696, citing State v. Warner (1990), 55 Ohio St.3d 31, 69, 564 N.E.2d 18. "Sufficient evidence of the amount of restitution may appear in the record." Carrino, citing State v. Montes (1993), 92 Ohio App.3d 539, 636 N.E.2d 378 (victim testified to the value of stolen car during trial).
{¶ 13} At the sentencing hearing, appellant objected to restitution and told the court that he had paid Ms. Sherman $100 two months earlier. The trial judge stated, "I'm going to order a hundred dollars in restitution, okay, on this case. And then if I hear from Miss Sherman that it's been paid — and I think she said that, but lets assume that I heard wrong. All I'm looking for is a letter of something to say, I have been paid, its been paid, and then I'll terminate the restitution order."
{¶ 14} A review of the transcript of the trial establishes that appellant's objection is well founded. Ms. Sherman testified that she borrowed money from her sister to pay for the damage to her door. She testified she asked appellant for $100 and he gave it to her. She said she paid her sister back with the money from appellant. Accordingly, we sustain appellant's third assignment of error and vacate the order of restitution.
Judgment affirmed in part and vacated in part.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, P.J., and LARRY A. JONES, J., CONCUR.
ing the Motion for Conditional Certification — on the basis that Aros did not file his consent form until July 15, 2010 — would undermine the FLSA's broad remedial purpose.
See,
e.g.,
Gonzalez,
2007 WL 869583, at *5 ("To the extent that the applicable rule is counter-intuitive — in that it assumes that a plaintiff who files a complaint in his own name does not actually intend to join in his own lawsuit unless he files an additional document saying, in effect, `and I mean it' — it creates a trap for the unwary that runs counter to the statute's remedial goal.").
This is especially true given that Aros submitted his section 216(b) written consent form quite promptly after the Memorandum in Opposition, which highlights this deficiency, was filed.
Moreover, it is clear that United Rentals has been on notice since the inception of the suit that Aros intended to proceed collectively. See Comp. at ¶ 1.
C. Whether Aros has "Disavowed" the Operations Manager Job Description
Relying on Mike v. Safeco Ins. Co. of America, 274 F. Supp. 2d 216, United Rentals argues that conditional certification should be denied because Aros has "disavow[ed] the tasks enumerated in a job description for an exempt position." Mem. in Opp. at 21. In Mike, the plaintiff had been employed as an insurance "Field Claims Representative," and he was classified by his employer as exempt from the overtime pay requirements of the FLSA. While all "Field Claims Representatives" were subject to "a common job description and were expected to perform the tasks enumerated in that specific job description," the Mike plaintiff "d[id] not rely on [that] job description as evidence in support of his claim." Id. at 221. Rather, the plaintiff "expressly disavow[ed] this job description and claim[ed] that, on a task-to-task, day-to-day basis, he spent the balance of his time performing non-administrative functions despite the fact that his job description calls for him to perform some administrative functions." Id. at 221. Given that the plaintiff expressly disavowed his job description and did not rely on it in support of his claim, the Mike court denied conditional certification, noting that the "merits of [the plaintiff's] claim [would] turn upon evidence relating to [his] day-to-day tasks, and not upon any . . . company policy or decision," id. at 221, and stating that, as a result, it would have to "engage in an ad hoc inquiry for each proposed plaintiff to determine whether his or her job responsibilities were similar to Mike's." Id.; see also White v. MPW Industrial Services, Inc., 236 F.R.D. 363, 372 n. 4 (stating that, in Mike, "the plaintiff did not challenge a company-wide policy, but instead asserted that his employer treated him in a certain way").
Mike is, in some sense, a typical case. Courts have often denied certification of FLSA collective actions where the plaintiff has not provided evidence of "comprehensive corporate policies that defined the job's duties," on the ground that "the proof of the actual duties of the job would be highly individualized." Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 161 n. 4 (S.D.N.Y. 2008) (collecting cases). Here, however, Mike is clearly distinguishable. Aros has not "expressly disavowed" United Rentals' Operations Manager job description or declined to rely on it as evidence. To the contrary, Aros stated that he did, in fact, perform many of the job duties listed in the Operations Manager job description. Aros testified that he,inter alia, "conducted safety meetings," Aros Dep. at 47:21, performed regular "safety walk-arounds,"id. at 111:16-19, was trained in the area of OSHA compliance, id. at 113:1-8, was involved in drug and alcohol testing for United Rentals employees, id. at 113:21-114:10, trained and prepared written performance reviews for certain employees, id. at 111:6-8, 110:6-13, coordinated activities between United Rentals' sales and service departments, id. at 114:11-115:6, maintained certain employee records, id. at 115:19-24, and monitored the overtime work of lower-level United Rentals employees, id. at 116:15-19. In addition, Aros' Complaint makes patent that this case challenges United Rentals' company-wide policy of classifying Operations Managers as ineligible for overtime pay, and that the putative collective action members are those who held the title of Operations Manager. Comp. at ¶¶ 3, 4. Rather than disavowing it, Aros relies heavily on United Rentals' company-wide Operations Manager job description in support of his arguments that the prospective collective action members in this case are similarly situated.See, e.g., Mem. in Supp. at 6-7.
United Rentals emphasizes that Aros testified to his lack of involvement with hiring and firing. See Mem. in Opp. at 12 n. 2. There is no dispute as to this point: Aros' own declaration makes clear that he had no authority to hire and fire employees, or to make recommendations about hiring and firing. Aros Dec. at ¶ 10. In the court's view, however, the fact that Aros did not perform one of the tasks listed on United Rentals' internal Operations Manager job description, Pl's Exh. M, is not dispositive. Among other reasons, United Rentals' external job listings, Pl's Exh. F, do not list hiring and firing as part of the job description for an Operations Manager.
To the extent United Rentals argues that Aros testified that he did not authorize overtime, prepare performance reviews, help make employee schedules, or train other employees, the court simply disagrees. It is true that Aros, in his deposition, clarified his tasks and responsibilities as an Operations Manager. However, he certainly did not "disavow" his job description. As the portions of Aros' deposition cited above indicate, Aros testified to performing many of the tasks listed on the Operations Manager job description, including tasks related to supervising and training other employees, preparing performance reviews, and helping with employee work schedules.
Mike might persuade this court to deny conditional certification if Aros had "expressly disavowed" his employer's job description, or if he did not challenge a company-wide policy related to overtime pay. Here, however, the court is not presented with such circumstances. See Neary, 517 F. Supp. 2d at 621. In Neary, the court ruled that conditional certification was proper, even though the plaintiff admitted that his job description was not "100 percent accurate." Id. The court distinguished Mike on the basis that the plaintiff did not "completely disavow" his employer's description of his role, but instead claimed that "he and all putative class members were injured by the same . . . policy-designation as exempt from the FLSA . . . which is sufficient to meet the lenient first-tier collective action standard.").
D. Aros' Evidence in Support of the Motion for Conditional Certification
To begin, Aros has presented evidence that Operations Managers were classified by United Rentals as exempt from overtime wages.See Pl's Exh. E at ¶ 3 ("Defendants admit that Operations Managers are classified as exempt employees and, as such, are not paid overtime."); Pl's Exh. B at 47:20-23 ("If you are in the operations manager job title, you are classified as exempt, yes."). Some district courts within this circuit appear to have held that evidence of such a policy designation as exempt from the FLSA's overtime pay requirements is sufficient for a plaintiff to meet his burden at the conditional certification stage. See, e.g., Neary, 517 F. Supp. 2d at 621 ("Neary claims that he and all putative class members were injured by the same Metropolitan policy-designation as exempt from the FLSA of automobile appraisers — which is sufficient to meet the lenient first-tier collective action standard."); Alonso v. Uncle Jack's Steakhouse, Inc., 648 F. Supp. 2d 484, 487 (S.D.N.Y. 2009) (stating that, at the first stage of the FLSA certification process, a plaintiff can satisfy his burden "by making a modest factual showing sufficient to demonstrate that [he] and potential plaintiffs together were victims of a common policy or plan that violated the law") (internal quotation marks and citations omitted).
In addition, Aros has sufficiently shown a factual nexus between all United Rentals Operations Mangers to justify conditional certification. Id. ("To maintain a collective action under the FLSA, a named plaintiff bears the burden of showing that others are `similarly situated'; the test is `whether there is a `factual nexus' between the claims of the named plaintiff and those who have chosen to opt-in to the action.'"). Aros' declaration indicates that he observed other operations managers performing tasks similar to his. Aros Decl. at ¶ 7. Moreover, Aros has presented evidence indicating that all United Rentals Operations Managers nationwide are subject to the same job description, perform the same essential duties and responsibilities, and are required to have the same job qualifications. See Pl's Exh. F; Pl's Exh. M; Pl's Exh. H at ¶ 15. Aros has also shown that all Operations Managers are subject to the same compensation policy, in the sense that they all receive salaries within the same "salary range," which range is centrally established at the United Rentals "corporate level" and applied to employees in all United Rentals branches. Pintoff Dep. at 91:18-92:19.
See Section III.D, infra.
United Rentals argues that it is improper to resolve this lawsuit collectively because the job duties of Operations Managers vary. Mem. in Opp. at 25. Indeed, according to United Rentals, "the only way to determine how much time each class members spent on exempt duties . . . versus nonexempt duties . . . would be to ask that individual or somebody who regularly observed him or her." Mem. in Opp. at 16-17. However, Aros has shown that, in deciding whether to characterize an Operations Manager as exempt from overtime pay, United Rentals considers only that employee's job title as Operations Manager.See Deposition of Craig Pintoff at 47:20-23 (indicating that all Operations Managers are exempt from overtime pay); Pl's Exh. H at ¶ 3; cf. Damassia, 250 F.R.D. at 159 (noting that defendant did not "consider any factors other than job title in deciding to categorize an assistant manager as exempt" from overtime pay). At this conditional certification stage, the court views the fact that United Rentals has made a "blanket determination," under which no Operations Managers may receive overtime pay, as "evidence that differences in the position, to the extent that there are any, are not material to the determination of whether the job is exempt from overtime requirements." Damassia, 250 F.R.D. at 159; see also Holbrook, 246 F.R.D. at 106 (D. Conn. 2007) ("The consistent manner in which Smith Hawken classified its own [assistant store managers] is sufficient to carry [plaintiff's] burden, even in the presence of minute factual variances in treatment between store locations."); Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1263 (11th Cir. 2008) (affirming district court's finding that collective action members were "similarly situated," and noting that the defendant "exempted all store managers from overtime pay requirements without regard to store size, sales volume, region, district, or hiring and firing authority."). Indeed, it is curious that United Rentals admits to characterizing all Operations Manager as exempt from the FLSA's overtime pay requirements without any individual inquiry, Mem. in Opp. at 16 ("United Rentals cannot track what Operations Managers are doing on a day-to-day basis."), yet simultaneously contends that such Operations Managers cannot proceed collectively to challenge their exempt classification, on the grounds that their job duties vary. See Nerland v. Caribou Coffee Co., Inc., 564 F. Supp. 2d 1010, 1024 (D. Minn. 2007) ("The Court finds it disingenuous for Caribou, on one hand, to collectively and generally decide that all store managers are exempt from overtime compensation without any individualized inquiry, while on the other hand, claiming the plaintiffs cannot proceed collectively to challenge the exemption.").
United Rentals contends that Aros' Motion for Conditional Certification must be denied because "merely alleging that a class of employees was wrongly designated `exempt' does not constitute a showing[] of an unlawful, institution-wide policy" for purposes of conditional certification. Mem. in Opp. at 30 (quoting Trinh v. JP Morgan Chase Co., No. 07-CV-1666 W(WMC), 2008 WL 1860161, at *4 n. 2 (S.D. Cal. Apr. 22, 2008)). To the extent this argument suggests that FLSA collective actions simply cannot be brought on the basis of "misclassification" of groups of employees, this court disagrees. "[S]ection 216(b) clearly applies to misclassification claims as well as other FLSA claims. Had Congress intended to exclude misclassification claims from collective actions, it would have done so."Perkins v. Southern New England Telephone Co., 669 F. Supp. 2d 212, 218 (D. Conn. 2009). Indeed, multiple courts in this district have certified collective actions in cases alleging violations of the FLSA's overtime pay laws. See, e.g.,id.; Marcus v. Am. Contract Bridge League, 254 F.R.D. 44 (D. Conn. 2008);Neary, 517 F. Supp. 2d 606; cf. Scott v. Aetna Services, Inc., 210 F.R.D. 261, 265 (D. Conn. 2002) ("[S]everal courts have held that it is appropriate to bring an FLSA exemption claim as a class action with regard to employees who perform similar, but not identical, duties, notwithstanding the highly fact-specific nature of the exemption inquiry.") (collecting cases).
To the extent United Rentals argues that conditional certification would only be proper upon a showing by Aros that he and other potential plaintiffs "together were victims of a common policy or plan that violated the law," Mem. in Opp. at 28 (emphasis in original), the court is unpersuaded. As stated above, Aros need not prove the merits of his FLSA claim to advance past this stage of the litigation. While United Rentals maintains that "the [Operations Manager] job description clearly represents the duties of an exempt job," Mem. in Opp. at 31, that issue goes to the merits of this case, and the court declines to address it at this conditional certification stage. "The notice stage of [FLSA certification] analysis is centered on whether the plaintiff has demonstrated, through allegations and factual support, that he and the putative class members were similarly situated — that is, victims of a common policy or plan of the defendant." Neary, 517 F. Supp. 2d at 620 (internal quotation marks and citation omitted). Indeed, "[t]he [c]ourt believes that, at this stage, a defendant's assertion of the potential applicability of an exemption should not be permitted to overcome an otherwise adequate threshold showing by the plaintiff." Id. (internal quotation marks and citation omitted).
This case, moreover, is distinguishable from Trinh v. JP Morgan Chase Co., No. 07-CV-1666 W(WMC), 2008 WL 1860161 (S.D. Cal. Apr. 22, 2008), which United Rentals cites for the proposition that "merely alleging that a class of employees was wrongly designated `exempt' does not constitute a showing[] of an unlawful, institution-wide policy" for purposes of conditional certification. Mem. in Support at 30. In Trinh, the plaintiffs "provide[d] no real evidence, beyond their own speculative beliefs, suggesting that all [putative collective action members], regardless of location or experience, receive[d] the same compensation and [we]re required to work in the same manner." Id. at *4. The Trinh court stated conditional certification would be proper upon a "modest factual showing that [plaintiffs] and the broad class they wish to represent are similarly situated with respect to job requirements and pay provisions." Id. at *4. However, the court denied conditional certification because the plaintiffs "simply stated," without providing any other evidence, that they and the potential collective action members "had essentially the same job description and training and were compensated in the same manner." Id. at *3.
This is not to mention the fact that the quoted portion ofTrinh appears to directly conflict with cases from this district, such as Neary, which held that the plaintiff's claim "that he and all putative class members were injured by the same Metropolitan policy-designation as exempt from the FLSA of automobile appraisers . . . is sufficient to meet the lenient first-tier collective action standard." 517 F. Supp. 2d at 621.
Here, however, Aros has done more than "simply state" that he is similarly situated to the members of the prospective collective action. To show that the proposed collective action members were similarly situated with respect to job requirements, Aros has presented the court with not only his own declaration and deposition testimony, but also with evidence of a job description that United Rentals admits is applicable to all United Rentals Operations Managers nationwide. To show that the proposed collective action members were similarly situated with respect to pay provisions, Aros has presented, inter alia, deposition testimony that Operations Managers were indeed compensated using salary ranges created at the corporate level, and were denied overtime pay without individual inquiry. Pintoff Dep. at 47:20-23; 91:18-92:19.
United Rentals also cites Morisky v. Public Service Elec. and Gas Co., 111 F. Supp. 2d 493 (D.N.J. 2000), a case in which the court denied FLSA certification where "[w]hat plaintiffs [we]re really challenging . . . is defendant's determination that they are exempt under the FLSA." Id. at 498; see also Mem. in Opp. at 30. Morisky, however, is also clearly distinguishable. Rather than providing the court, as Aros has, with a job description that is applicable to all employees nationwide in his position, the plaintiffs in Morisky "d[id] not even discuss the job responsibilities of the opt-in plaintiffs. Instead, plaintiffs reference[d] an extremely broad `general connection' all plaintiffs have to the production of electricity." 111 F. Supp. 2d at 498. Further, Morisky was decided at the second stage of the two-stage FLSA certification inquiry. 111 F. Supp. 2d at 498. Here, as stated above, the focus is on whether Aros has made a "modest" showing that he was similarly situated to potential opt in plaintiffs to the case.
In sum, the court is satisfied that Aros has sufficiently shown "some identifiable factual nexus which binds the named plaintiffs and the potential class members together as victims of a particular alleged discrimination."Heagney, 122 F.R.D. at 127. While the court recognizes the possibility that the evidence in this case will ultimately show that the prospective collective action members in this case are not similarly situated, Aros has made at least a modest showing, as he is required to do at this stage, "that he and the putative collective action members are similarly situated in that they all held the same or similar position and had the same or similar responsibilities and daily tasks." Neary, 517 F. Supp. 2d at 620.
IV. PROPOSED COLLECTIVE ACTION NOTICE
While United Rentals objects to the proposed Collective Action Notice that Aros has submitted along with his Motion for Conditional Certification, the Memorandum in Opposition devotes only a short paragraph to this issue and does not describe United Rentals' objections in any level of detail. Mem. in Opp. at 34. United Rentals is ordered to submit, by October 22, 2010, additional briefing as to its specific objections to Aros' Proposed Collective Action Notice, including a proposed counter notice, a red-lined edit of plaintiff's notice, or, after consultation with plaintiff's attorney, an agreed upon notice. The court will then resolve issues related to the Notice.
V. CONCLUSION
The Motion for Conditional Certification (Doc. No. 25) is granted in part. It is granted as to Aros' request to conditionally certify the FLSA collective action. However, the court will not authorize notice to the prospective class until it resolves United Rentals' objections to the proposed notice that Aros has already submitted.
SO ORDERED.
Dated at Bridgeport, Connecticut, this 23rd day of September, 2010.