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D.Neb.: Plaintiffs’ Motion To Extend Opt-in Deadline Granted—Good Cause Shown—Over 500 Notices Initially Went To Old (Incorrect) Addresses

Cortez v. Nebraska Beef, Inc.

This matter was before the court on the plaintiffs’ Motion to Extend Deadline for Putative Class Members to Join the Collective Action.  Since, it found the Plaintiffs met the requisite good cause showing, the Court granted Plaintiffs’ Motion.

The relevant facts were as follows: “On June 23, 2009, the plaintiffs filed the instant motion to extend the deadline to allow putative class members to join the FLSA claims. The plaintiffs seek an extension from June 9, 2009, to July 31, 2009. The court held a telephone conference with counsel for the parties on June 26, 2009, and scheduled expedited briefing. The plaintiffs state they contacted putative class members during the process of preparing for class certification and learned several putative class members had not received notice of their right to opt-in. The plaintiffs contend the failure was due to the notice packets being sent to old addresses. The plaintiffs show 504 notice packets (14% of the putative class) were returned as undeliverable. Conversely, 416(12%) opt-in consent forms have been received. The plaintiffs propose re-mailing notices to more current addresses and sending a reminder notice to others in an attempt to increase opt-in participation. The plaintiffs argue the defendants will not suffer undue prejudice by this procedure, which would promote the goals of the FLSA. The plaintiffs contend any putative class members who are not allowed to join this lawsuit may file a parallel lawsuit, thus wasting judicial resources.”

The defendants contended that “the plaintiffs have failed to show good cause to extend the expired opt-in deadline. First, the defendants argue the plaintiffs fail to show how (or how many) updated addresses they have received for putative class members, who have not since had an opportunity to opt-in. Second, the defendants contend the plaintiffs have failed to offer a solution for determining updated information. Third, the defendants assert other forms of notice, such as posted and radio notices, were employed to provide notice in the event the mailing was not successful. Finally, the defendants argue there is no justification to extend the deadline for putative class members who did receive the notice by mailing. The defendants contend the extension would prejudice them by allowing otherwise barred claims.

The company providing administrative services for the opt-in process notes it originally received 907 undeliverable class notices, then promptly sent out 803 notices with updated addresses. As of the date of the declaration 403 of the updated notices had been returned as undeliverable, leaving a total of 504 as “truly undeliverable.” Id. The service company described its efforts at obtaining deliverable addresses.

The court found that the plaintiffs demonstrated “good cause for the extension of time (out of time) to allow putative class members to opt-in to the FLSA claims. See Fed.R.Civ.P. 6(b) (excusable neglect); Fed.R.Civ.P. 16(b ) (good cause); Bradford v. DANA Corp., 249 F.3d 807, 809-10 (8th Cir.2001); see also Thorn v. Blue Cross & Blue Shield of Fla., Inc., 192 F.R.D. 308, 309 (M.D.Fla.2000). The defendants will not suffer unfair prejudice by an extension of time. The defendants failed to show any prejudice. The plaintiffs’ brief extension of time will not delay the resolution of the issues. Although, it is unclear how the plaintiffs would find deliverable addresses for any of the truly undeliverable notices. Similarly, it is unlikely a reminder mailer will generate opt-in responses in the time period requested. It appears the plaintiffs actually seek additional time for known putative plaintiffs to finalize their consents. Under the circumstances, the court finds good cause has been shown for the short extension of the opt-in deadline.” Therefore, Plaintiffs’ Motion to Extend the Opt-in Deadline was extended.

S.D.Ala.: Court Strikes 245 Declarations From Potential Class Members Obtained By Defendant Pre-Certification By Ruse

Longcrier v. HL-A Co., Inc.

Knowing that this lawsuit was pending and that it was styled as a 216(b) opt-in proceeding, Defendant called each of its hourly workers into a one-on-one meeting during work hours with its attorney(s), creating an inherently coercive and intimidating environment for interviews and execution of paperwork concerning pay practices, under the guise of conducting a “survey.”  Defendant’s attorneys asked general questions about pay practices and placed a largely form document in front of each employee to be signed.  “While that inherently coercive setting is not itself grounds for relief, Defendant’s misleading statements to these potential plaintiffs about the reasons for the interview and declaration process, and their suppression of the truth, were obviously designed to lull prospective plaintiffs into a false sense of security and to effectuate their complete cooperation with minimal resistance.”  Such manipulation of unrepresented parties to secure Declarations that HL-A now uses for the purpose of preventing the very people it misled from being able to litigate their FLSA rights herein is improper.

Therefore, the Court determined that the appropriate remedy was to strike the 245 declarations improperly obtained by Defendant, which would have made it difficult for the potential class members to pursue claims in the instant case.