The opinion of the court was delivered by: Judge Frost
Presently before the Court for consideration in this Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., case are two motions filed by Plaintiff Amy Baden-Winterwood ("Baden-Winterwood"). The first is a Motion for Conditional Class Certification and Authorization of Issuance of Notice to Prospective Class Members. (Doc.# 3). The second is a motion for expedited discovery. (Doc. # 4). The parties have reached an agreement on both motions, with the exception of the actual content and format of the class notice.*fn1 To that end, Baden-Winterwood and Defendant Life Time Fitness ("Life Time") have each submitted a proposed class notice and consent form. (Doc. # 14 Ex. A; Doc. # 15 Ex. E). As such, the sole issue before the Court is which proposal to adopt for purposes of notifying potential class members about this case.
In summary, the Court DENIES Baden-Winterwood's motion for expedited discovery as moot in light of the parties' agreement on that topic. (Doc. # 4). And, for the reasons that follow, the Court GRANTS Baden-Winterwood's Motion for Conditional Class Certification and Authorization of Issuance of Notice to Prospective Class Members, but DENIES her motion to the extent it asks the Court to use her proposed notice. (Doc. # 3).
The parties' notices differ with respect to the following issues: (1) whether the Court should use Baden-Winterwood's version or Life Time's version; (2) whether the notice should contain a provision advising potential plaintiffs that they might be responsible for Life Time's costs if Life Time prevails; (3) the wording the notice should utilize regarding the possible discovery the potential plaintiffs may be required to complete; (4) whether the notice should inform the potential plaintiffs that Life Time's repayment of salary deductions does not affect their ability to opt-in; (5) whether contact information for Life Time's attorneys should be provided in the notice; and (6) the opt-in period. The Court will address the content issues separately before determining which version to endorse.
During the Court's April 12, 2005 conference call, Baden-Winterwood's counsel indicated that his firm would cover the costs and fees associated with the action in the event of a final Court ruling or verdict favoring Life Time. Consistent with that statement, Life Time's draft includes language to that effect. Baden-Winterwood's version does not.
The Court concludes that such information is necessary for potential plaintiffs to make an informed decision about whether to opt-in as a plaintiff. Certainly, issues of financial responsibility for the suit would play into that determination, and numerous other courts have required such information be included in FLSA collective action notices. See Dietrich v. Liberty Square, L.L.C., 230 F.R.D. 574, 580 (N.D. Iowa 2005); Ponce v. Tim's Time, Inc., No. 03 C 6123, 2004 WL 1921038, at *3 (N.D. Ill 2004), Gjuroviceh v. Emmanuel's Marketplace, 282 F. Supp. 2d 101, 107 (S.D. NY 2003). As such, the notice shall contain a provision to the effect that Baden-Winterwood's counsel has agreed to absorb court fees and costs in the event that Life Time prevails in this matter.
Baden-Winterwood's draft notice provides "[w]hile this suit is proceeding you may be required to provide information or discovery." (Doc. # 14 Ex. A ¶ V). Life Time's proposal states: "While this suit is proceeding, you may be required to respond to written questions, sit for depositions and/or testify in court." (Doc # 15 Ex. E ¶ VI).
The Court finds Life Time's proposal more appropriate. Baden-Winterwood's generic use of "discovery" without an explanation of what that term encompasses is likely to mean nothing to an individual who receives the notice. In contrast, Life Time informs the potential plaintiffs of the possibility of discovery requirements in words are familiar to the public. Life Time's offering therefore allows potential plaintiffs to make a reasoned decision about the time they would need to invest in the suit should they decide to opt-in the action. Furthermore, this Court previously approved the following language regarding discovery in a FLSA collective action notice: "If you elect to join this lawsuit, you may also be required to provide information, give a deposition, and/or testify in court." Smith, et. al., v. Lowe's Home Centers, No. 04-774 (S.D. Ohio 2004) (Frost, J.) (Doc. # 71). Life Time's suggestion closely mirrors that language. Consequently, the Court holds that the wording of Life Time's proposal regarding discovery shall be in the notice.
Life Time recently issued payments to some of its employees. The repayments do not limit an individual's ability to participate in the suit; thus, during the April 12, 2005 telephone conference, the Court ordered the parties to include language to that effect in their drafts. Both parties complied, but now disagree about which side's language the Court should adopt.
On this topic, Baden-Winterwood's draft poses the question "May I participate in this lawsuit if Life Time Fitness repaid me money that was deducted from my salary in 2005?" and provides the following answer: "Yes. The Fact that Life Time Fitness may have repaid you recently for money that was deducted from your salary in 2005 does not affect your right to participate in this lawsuit. This suit does not seek to recover those benefits, and instead seeks to recover overtime for hours worked over 40 by the persons receiving this notice." (Doc. # 14 Ex. A ¶ IV). Life Time's draft is more concise. It poses the same question and then states: "The fact that Life Time ...