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LAWOFFICESOF
RUDY,EXELROD&ZIEFF,LLP.
351CA
LIFORNIASTREET,SUITE700
SANFRANCISCO,CA
94104
(415)434-9800
PLAINTIFFSMOTION FOR CONDITIONA
CERTIFICATION,NOTICE;AND EQUITABLE TOLLIN
POINTS AND AUTHORITIES -CASE NO. C-06-7776 S
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David A. Lowe (State Bar #178811)
John T. Mullan (State Bar # 221149)
RUDY, EXELROD & ZIEFF, L.L.P.
351 California Street, Suite 700San Francisco, CA 94104
Telephone: (415) 434-9800
Facsimile: (415) 434-0513Email: [email protected]
Email: [email protected]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
Case No. C-06-7776 SCRICHARD PRENTICE, CHRISTIANMILLER, and TIFFINEYPETHERBRIDGE, on their own behalf andon behalf of classes of those similarlysituated,
Plaintiffs,
vs.
FUND FOR PUBLIC INTERESTRESEARCH, INC.,
Defendants.
/
NOTICE OF MOTION AND MOTION
FOR CONDITIONAL COLLECTIVE
ACTION CERTIFICATION,
HOFFMANN-LA ROCHE NOTICE,
AND EQUITABLE TOLLING;
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORTTHEREOF
Date: July 13, 2007Time: 10:00 a.m.
Court: 1Judge: Hon. Samuel Conti
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351CA
LIFORNIASTREET,SUITE700
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94104
(415)434-9800
PLAINTIFFSMOTION FOR CONDITIONA
CERTIFICATION,NOTICE;AND EQUITABLE TOLLIN
POINTS AND AUTHORITIES -CASE NO. C-06-7776 S
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NOTICE OF MOTION AND MOTION
TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
NOTICE IS HEREBY GIVEN that on July 13, 2007, at 10:00 a.m., or as soon thereafter
as the matter may be heard, in Courtroom 1 of the Northern District of California, San Francisco
Division, located on the 17th Floor of 450 Golden Gate Ave., San Francisco, California,
Plaintiffs Richard Prentice, Christian Miller & Tiffiney Petherbridge (Plaintiffs), on behalf of
themselves and all others similarly situated, will move as follows, pursuant to the Fair Labor
Standards Act (FLSA), 29 U.S.C. 201 et seq., andHoffmann-La Roche Inc. v. Sperling, 493
U.S. 165 (1989):
(1) Conditional certification: That the Court conditionally certify this action as an
FLSA collective action;
(2) Mailing of notice: That the Court authorize the mailing of notice of the pendency
of this action to prospective FLSA collective action members, defined as all past,
present, and future employees of Defendant Fund for Public Interest Research,
Inc. who have been or will be classified as Canvassers or Field Managers
(collectively, Covered Positions), at any time between the earliest date covered
by the first pay date falling after December 19, 2003 and the filing date of the
Order granting this motion (collectively, Covered Employees);
(3) Form of notice: That the Court approve the proposed notice of this action and th
proposed consent to join form, attached to the [Proposed] Order Granting
Plaintiffs Motion for Conditional Collective Action Certification,Hoffmann-La
Roche Notice, and Equitable Tolling Notice as Exhibits A and B respectively;
(4) Contact information: That the Court order Defendant Fund for Public Interest
Research, Inc. to produce to Plaintiffs counsel the names, addresses and
telephone numbers of all Covered Employees; and that such information be
provided in Microsoft Excel format to Plaintiffs counsel 10 days after the date of
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351CA
LIFORNIASTREET,SUITE700
SANFRANCISCO,CA
94104
(415)434-9800
PLAINTIFFSMOTION FOR CONDITIONA
CERTIFICATION,NOTICE;AND EQUITABLE TOLLIN
POINTS AND AUTHORITIES -CASE NO. C-06-7776 S
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the Courts order granting Plaintiffs Motion for purposes of sending notice;
(5) Time period: That the Court order that all Covered Employees shall have 120
days from the date of the mailing of notice to mail their consents to join to
Plaintiffs counsel, and that Plaintiffs counsel shall have thirty (30) days after tha
date to file written consents to join with the Court (without prejudice to Plaintiffs
right to request that notice, and an opportunity to opt in, be provided at a later date
to individuals who become employed in Covered Positions afterthe filing date of
the Courts order granting Plaintiffs Motion); and,
(6) Equitable tolling: That the Court equitably toll the statute of limitations for all
Covered Employees from the date of the filing of the Complaint (December 19,
2006) through the date the Court sets as the deadline for consents to join to be
filed with the Court.
This motion is supported by Plaintiffs Memorandum of Points and Authorities, the
Declarations of David A. Lowe, John T. Mullan, Richard Prentice, Christian Miller, Tiffiney
Petherbridge, Michael Oehler,Lauren Steely,and Sarah Stein, and exhibits attached thereto; the
[Proposed] Order Granting Plaintiffs Motion for Conditional FLSA Class Certification and
Approval ofHoffmann-La Roche Notice and exhibits attached thereto (Notice and Consent to
Join form) filed herewith; the other records, pleadings, and papers filed in this action; and upon
such other documentary and oral evidence or argument as may be presented to the Court at the
hearing of this motion.
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351CA
LIFORNIASTREET,SUITE700
SANFRANCISCO,CA
94104
(415)434-9800
PLAINTIFFSMOTION FOR CONDITIONA
CERTIFICATION,NOTICE;AND EQUITABLE TOLLIN
POINTS AND AUTHORITIES -CASE NO. C-06-7776 S
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TABLE OF CONTENTS
I. INTRODUCTION....................................................................................................
II. BACKGROUND......................................................................................................
A. Claims and Background .......................................................................................... 3
1. Fund for Public Interest Research, Inc. ....................................................... 4
2. All Canvassing Staff Have the Same Primary Job Duty ............................. 5
3. Fund Has Treated All Canvassing Staff as a Class for Purposes ofDenying Them Overtime Pay...................................................................... 6
III. DISCUSSION ..........................................................................................................
A. The Court Should Grant Conditional Certification and Order Notice to theClass ........................................................................................................................ 6
1. The Court Has Broad Discretion to Conditionally Certify a Classand Facilitate Notice....................................................................................6
2. The Standard for Granting Conditional Certification and ClassNotice is Very Lenient ................................................................................ 8
3. Notice is Appropriate Because Plaintiffs are Similarly Situated toOther Canvassing Staff..............................................................................10
B. Scope of the Class ................................................................................................. 13
C. The Court Should Order and Approve Class Notice.............................................13
D. Plaintiffs Proposed Form of Notice Should be Approved ................................... 14
E. The Statute of Limitations Should Be Equitably Tolled ....................................... 14
IV. CONCLUSION ......................................................................................................1
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LIFORNIASTREET,SUITE700
SANFRANCISCO,CA
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PLAINTIFFSMOTION FOR CONDITIONA
CERTIFICATION,NOTICE;AND EQUITABLE TOLLIN
POINTS AND AUTHORITIES -CASE NO. C-06-7776 S
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TABLE OF AUTHORITIES
Page(s
Adams v. Inter-Con Security System, Inc., No.
C 06-05428 MHP, 2007 WL. 1089694 (N.D. Cal. Apr. 11, 2007)..................... 7, 8, 13, 14
Agdipa v. Grant Joint Union High Sch. District,
No. Civ. S-06-1365 DFL DAD, 2007 WL. 1106099 (E.D. Cal. Apr. 10, 2007) ................ 8
Aguayo v. Oldenkamp Trucking,
No. CV-F-04-6279 AWI LJO, 2005 WL 2436477 (E.D. Cal. Oct. 3, 2005)...................... 9
Allen v. Marshall Field & Co.,
93 F.R.D. 438 (N.D. Ill. 1982) ............................................................................................ 9
Avila v. Turlock Irrigation Dist.,No. 1:06-CV-00050 OWW SMS,
2006 WL 3201083 (E.D. Cal. Nov. 6, 2006) ...................................................................... 9
Baldozier v. America Family Mutual Insurance Co.,
375 F. Supp. 2d 1089 (D. Colo. 2005) ........................................................................ 14, 15
Ballaris v. Wacker,No. 00-1627, 2001 WL. 1335809 (D. Or. Aug. 24, 2001).................................................. 9
Beauperthuy v. 24 Hour Fitness USA, Inc.,
No. 06-0715 SC, 2007 WL 707475 (N.D. Cal. Mar. 6, 2007) ................................... passim
Bonilla v. Las Vegas Cigar Co.,
61 F. Supp. 2d 1129 (D. Nev. 1999) ................................................................................. 10
Bothell v. Phase Metrics,
299 F.3d 1120 (9th Cir. 2002) ............................................................................................. 4
Brown v. Money Tree Mortgage, Inc.,
222 F.R.D. 676 (D. Kan. 2004) ........................................................................................... 9
Camper v. Home Quality Management, Inc.,200 F.R.D. 516 (D. Md. 2000) ............................................................................................ 9
Chao v. A-One Medical Services,
346 F.3d 908 (9th Cir. 2003).............................................................................................13
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351CA
LIFORNIASTREET,SUITE700
SANFRANCISCO,CA
94104
(415)434-9800
PLAINTIFFSMOTION FOR CONDITIONA
CERTIFICATION,NOTICE;AND EQUITABLE TOLLIN
POINTS AND AUTHORITIES -CASE NO. C-06-7776 S
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Coan v. Nightingale Home Healthcare, Inc.,
No. 1:05-CV-0101-DFH-TAB,
2005 WL. 1799454 (S.D. Ind. Jun. 29, 2005) ..................................................................... 9
Crawford v. Lexington-Fayette Urban County Government,
No. 06-299-JBC, 2007 WL. 293865 (E.D. Ky. Jan. 26, 2007) ........................................... 9
Edwards v. City of Long Beach,
467 F. Supp. 2d 986 (C.D. Cal. 2006)..................................................................... 1, 2, 7, 9
Gerlach v. Wells Fargo & Co.,
No. C 05-0585 CW, 2006 WL. 824652 (N.D. Cal. Mar. 28, 2006)..................8, 11, 12, 14
Henchy v. City of Absecon,
148 F. Supp. 2d 435 (D.N.J. 2001).................................................................................... 15
Hoffmann-La Roche Inc. v. Sperling,
493 U.S. 165 (1989) ...................................................................................................passim
Kane v. Gage Merchandising Services,138 F. Supp. 2d 212 (D. Mass. 2001)................................................................................ 12
Klem v. County of Santa Clara,No. C-91-20674 RMW (PVT),
1996 WL 438801 (N.D. Cal. Apr. 1, 1996).................................................................13, 14
Morden v. T-Mobile USA, Inc., No.
C05-2112R S. & M.,
2006 U.S. Dist. LEXIS 68696 (W.D. Wash. Sep. 12, 2006) ............................. 1, 9, 10, 12
Owens v. Bethlehem Mines Corp.,
630 F. Supp. 309 (S.D. W. Va. 1986) ................................................................... 14, 15, 16
Partlow v. Jewish Orphans' Home of Southern Cal., Inc.,
645 F.2d 757 (9th Cir. 1981)....................................................................................... 14, 15
Randle v. City of New Albany,
No. 3:05CV74, 2006 WL 2085387 (N.D. Miss. Jul. 25, 2006) ........................................ 15
Reab v. Electronic Arts, Inc.,214 F.R.D. 623 (D. Colo. 2002) .......................................................................................... 9
Romero v. Producers Dairy Foods, Inc.,
235 F.R.D. 474 (E.D. Cal. 2006)......................................................................................... 9
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SANFRANCISCO,CA
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PLAINTIFFSMOTION FOR CONDITIONA
CERTIFICATION,NOTICE;AND EQUITABLE TOLLIN
POINTS AND AUTHORITIES -CASE NO. C-06-7776 S
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Shaffer v. Farm Fresh, Inc.,
966 F.2d 142 (4th Cir. 1992)............................................................................................... 1
Stanfield v. First NLC Finance Services, LLC,No. C 06-3892 SBA, 2006 WL 3190527 (N.D. Cal. Nov. 1, 2006) ................................... 9
Thiessen v. General Electric Capital Corp.,267 F.3d 1095 (10th Cir. 2001)................................................................................. 7, 8, 10
White v. MPW Industrial Services, Inc.,236 F.R.D. 363 (E.D. Tenn. 2006) ...................................................................................... 9
Williams v. Sprint/United Management Co.,222 F.R.D. 483 (D. Kan. 2004) ........................................................................................... 9
Zhao v. Benihana,
No. 01 Civ. 1297 (KMW), 2001 WL. 845000 (S.D.N.Y. July 5, 2001)............................. 9
STATUTES, RULES AND REGULATIONS
29 U.S.C. 201 et seq ...........................................................................................................passim
29 U.S.C. 203(k)........................................................................................................................11
29 U.S.C. 207 ............................................................................................................................ 129 U.S.C. 216(b).......................................................................................................... 1, 7, 12, 16
29 U.S.C. 255 ............................................................................................................................ 229 U.S.C. 255(a).................................................................................................................. 12, 13
29 U.S.C. 256(b).................................................................................................................... 2, 14
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LIFORNIASTREET,SUITE700
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94104
(415)434-9800
PLAINTIFFSMOTION FOR CONDITIONA
CERTIFICATION,NOTICE;AND EQUITABLE TOLLIN
POINTS AND AUTHORITIES -CASE NO. C-06-7776 S
1
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
This is a proposed class action for unpaid overtime wages and liquidated damages under
the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq. Plaintiffs Richard Prentice,
Christian Miller & Tiffiney Petherbridge (Named Plaintiffs) seek to represent a class of
Canvassers and Field Managers (Canvassing Staff) employed by Defendant the Fund for Publi
Interest Research, Inc. (Fund), all of whom have been categorically misclassified by Fund as
exempt from overtime pay and denied overtime wages on that basis.
This motion is brought to protect the interests of the potential class members by providing
them with notice of this FLSA case and equitably tolling their FLSA claims for unpaid overtime
(which have not been not tolled simply by the filing of the complaint). Absent such notice and
tolling, potential class members FLSA rights will be prejudiced, the FLSAs remedial purposes
frustrated, and judicial economies lost.
There is no other way to protect these important interests at this time: Plaintiffs do not
know potential class members identities, and Defendant has refused Plaintiffs requests to
provide this information or stipulate to tolling the statute of limitations on the potential class
members FLSA claims. As discussed below, the standard for granting the instant motion at an
early stage of the litigation is lenient and easily satisfied by Plaintiffs.
The FLSA mandates overtime pay for employees and expressly authorizes class (or
collective) actions to vindicate this right where the employees at issue are similarly situated.
29 U.S.C. 207, 216(b). Because class members must affirmatively opt in to a FLSA
collective action, the Supreme Court has held that named plaintiffs in FLSA class actions may
have a court-approved notice sent to all similarly situated individuals with potential claims
informing them of the lawsuit and providing them with an opportunity to opt in. 1Hoffmann-La
1 Hoffmann-La Roche was an Age Discrimination in Employment Act case but applieequally to FLSA actions. See, e.g., Shaffer v. Farm Fresh, Inc., 966 F.2d 142, 147 n. 5 (4th Cir.1992);Edwards v. City of Long Beach, 467 F. Supp.2d 986, 989-90 (C.D. Cal. 2006);Morden v. T-
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351CA
LIFORNIASTREET,SUITE700
SANFRANCISCO,CA
94104
(415)434-9800
PLAINTIFFSMOTION FOR CONDITIONA
CERTIFICATION,NOTICE;AND EQUITABLE TOLLIN
POINTS AND AUTHORITIES -CASE NO. C-06-7776 S
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Roche Inc. v. Sperling, 493 U.S. 165, 172-74 (1989). This notice procedure recognizes the
congressional policy favoring FLSA class actions, the benefits to the judicial system of such
actions, the need for employees to receive accurate and timely notice, and the benefits of early
judicial intervention and management. Hoffmann-La Roche Inc., 493 U.S. at 169-73. Moreover,
notice is critical to protect employees FLSA rights because, absent tolling, the statute of
limitations will continue to run on their claims until they opt in. 29 U.S.C. 255, 256(b).
FollowingHoffmann-La Roche, courts make an initial determination whether there are
similarly situated employees so as to warrant conditional class certification and class notice.
The standard for this determination is lenient and typically results in conditional
certification. Edwards v. City of Long Beach, 467 F. Supp.2d 986, 989-90 (C.D. Cal. 2006)
(internal quotes omitted);Beauperthuy v. 24 Hour Fitness USA, Inc., No. 06-0715 SC, 2007 WL
707475, *5 (N.D. Cal. Mar. 6, 2007) (plaintiff bears very light burden). This lenient standard
is particularly apt here, where class members are losing claims to the statute of limitations on an
ongoing basis under the status quo.
Plaintiffs easily meet their very light burden here. The central issue in the case is
whether the primary job duty of Canvassing Staff brings them within any of the narrow
exemptions from the FLSAs overtime pay provisions, discussed below. Plaintiffs allegations,
declarations and pre-discovery evidence show that all Canvassing Staff have had the same
primary job duty of collecting signatures and soliciting donations for third-party non-profit and
advocacy groups. Also, Fund classifies all Canvassing Staff as exempt on a categorical, class-
wide basis, and denies all Canvassing Staff overtime pay under the same common plan. In its
Answer, Fund reaffirms the treatment of potential class members as being similarly situated. See
Answer, p.9 (affirmative defense that all potential class members are exempt). Indeed, Fund
Mobile USA, Inc., No. C05-2112RSM, 2006 U.S. Dist. Lexis 68696, *1 n.1 (W.D. Wash. Sep. 12,2006).
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94104
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PLAINTIFFSMOTION FOR CONDITIONA
CERTIFICATION,NOTICE;AND EQUITABLE TOLLIN
POINTS AND AUTHORITIES -CASE NO. C-06-7776 S
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alleges that its categorical classification of Canvassing Staff as exempt has been reasonable and
in good faith, id. p.10, further reaffirming that these employees are similarly situated for
purposes of the exemption issue. Based on this threshold, pre-discovery showing that there are
similarly situated employees, the Court should order conditional certification and class notice.
In addition, the Court should grant Plaintiffs request for equitable tolling of the statute of
limitations. Potential class members, through no fault of their own, and due to Defendants
refusal to agree to notice, have been prevented from learning of this action and/or the need to
affirmatively opt-in in order to be included.
Plaintiffs sought to avoid the need for this motion by asking Defendant for the names and
addresses of potential class members so Plaintiffs could notify them about the action and their
ability to opt in by filing consents to sue. Defendant denied the request. Declaration of David A
Lowe, (Lowe Dec.), 5, 6. As an alternative means to avoid the motion, Plaintiffs asked
Defendant to stipulate to conditional certification and sending of notice and to toll the statute of
limitations. Defendant rejected these requests as well. Id. at 3, 6. Defendants refusal to
identify the potential class members, stipulate to the sending of notice or toll the statute of
limitations has left Plaintiffs with no alternative but to file the instant motion.
II. BACKGROUND
A. Claims and BackgroundThe Named Plaintiffs were employed by Defendant Fund for Public Interest Research as
Canvassing Staff for some period of time within the FLSA statutory period.2 Declaration of
Christian Miller (Miller Dec.), 2; Declaration of Richard Prentice (Prentice Dec.), 2;
Declaration of Tiffiney Petherbridge (Petherbridge Dec.), 2. Plaintiffs allege that, under a
common plan and practice, Fund has misclassified Plaintiffs and thousands of other Canvassing
Staff who have performed substantially the same work as categorically exempt from the
2 The statute of limitations is three years or two years, depending on whether theemployers violations are willful. Id. 255(a).
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PLAINTIFFSMOTION FOR CONDITIONA
CERTIFICATION,NOTICE;AND EQUITABLE TOLLIN
POINTS AND AUTHORITIES -CASE NO. C-06-7776 S
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FLSAs overtime-pay requirements, and, on that basis, has failed to pay them overtime wages fo
their overtime hours. Plaintiffs Class and Collective Action Complaint (Complaint), 1-3,
14, 17, 21-23. Plaintiffs seeks to recover unpaid overtime wages and liquidated damages on thei
own behalf, and also on behalf of a class of all other Fund Canvassers and Field Managers (and
employees holding predecessor or successor job titles for the same positions).3
Defendant alleges as affirmative defenses that Plaintiffs are exempt under the outside
sales exemption (Answer, p. 12), the commissioned employee exemption (Answer, p. 13)
and/or the administrative and/or executive exemptions (Answer, p. 13). However, regardless
of which exemption Defendant attempts to prove in this case,4
Plaintiffs and all Canvassing Staff
will be similarly situated for purposes of the exemption inquiry due to the fundamental
equivalence of their job duties, and the common types of constraints and policies that delimit
their sphere of responsibility and control how they perform their work.
1. Fund for Public Interest Research, Inc.Defendant Fund for Public Interest Research, Inc. is a nationwide organization which
contracts to perform canvassing work on behalf of other organizations. Declaration of John T.
Mullan (Mullan Dec.), 2 & Ex. A. It maintains offices in 38 cities nationwide, including an
office in San Francisco, California. Mullan Dec., 3, Ex. B. Utilizing Canvassing Staff,
Defendant Fund collects signatures and donations on behalf of third-party advocacy groups. Id.
at 4 & Ex. C; Prentice Dec., 5; Miller Dec., 5; Petherbridge Dec., 5; Declaration of Michael
Oehler (Oehler Dec.), 5; Declaration of Robert Rose (Rose Dec.), 5; Declaration of Lauren
Steely (Steely Dec.), 5; Declaration of Sarah Stein (Stein Dec.), 5.
3 Plaintiffs have also filed California and New York state claims for unpaid wages
and related wage and hour law violations, which claims are not at issue in this motion.4 FLSA exemptions are affirmative defenses which it is the employers burden to
prove. They are narrowly construed against employers and are to be withheld except as topersons plainly and unmistakenly within their terms and spirit. Bothell v. Phase Metrics, 299F.3d 1120, 1124-25 (9th Cir. 2002), internal quotes and alterations omitted.
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PLAINTIFFSMOTION FOR CONDITIONA
CERTIFICATION,NOTICE;AND EQUITABLE TOLLIN
POINTS AND AUTHORITIES -CASE NO. C-06-7776 S
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2. All Canvassing Staff Have the Same Primary Job DutyThough Fund Canvassing Staff may canvass for different third-party advocacy groups,
and may do so in different locations throughout the country, they all have the same, common
primary job duty: that is, to canvass door to door or in public locations soliciting donations and
collecting signatures for third-party non-profit and advocacy organizations. Prentice Dec., 5;
Miller Dec., 5; Petherbridge Dec., 5; Oehler Dec., 5; Rose Dec., 5; Steely Dec., 5; Stein
Dec., 5. This remains true regardless of the location in which the Canvassing Staff are
working, and regardless of whether they held the title Canvasser or Field Manager. Prentice
Dec., 8, 9; Miller Dec., 8, 9; Petherbridge Dec., 8, 9; Oehler Dec., 8; Rose Dec., 8;
Steely Dec., 8; Stein Dec., 8. This point is further illustrated by the Funds canvass jobs web
site, which states --- without regard to location or third-party advocacy group at issue --- that the
heart of the job is canvassing and involves goingdoor-to-door, or into public places to
canvass. Mullan Dec., 4 & Ex. C.5
Further, all Canvassing Staff have been required to adhere to the same types of policies,
procedures and training regarding how to canvass door to door or in public locations. Prentice
Dec., 7, 8; Miller Dec., 7, 8; Petherbridge Dec., 7, 8; Oehler Dec., 7, 8; Rose Dec., 7,
8; Steely Dec., 7, 8; Stein Dec., 7, 8. For instance, all Canvassing Staff have been required
to memorize a solicitation script and recite this script verbatim when soliciting door to door or
on street corners. Prentice Dec., 7; Miller Dec., 7; Petherbridge Dec., 7; Oehler Dec., 7;
Rose Dec., 7; Steely Dec., 7; Stein Dec., 7. As another example, all Canvassing Staff have
been subject to the common requirement of recording their canvassing results at the end of each
day. Prentice Dec., 5; Miller Dec., 5; Petherbridge Dec., 5; Oehler Dec., 5; Rose Dec., 5;
Steely Dec., 5; Stein Dec., 5.
5Of course Plaintiffs disagree with how the job postings characterize Canvassing
Staff job duties. The point here is simply that the functions and responsibilities of all CanvassingStaff are essentially the same, regardless of how they are described.
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(415)434-9800
PLAINTIFFSMOTION FOR CONDITIONA
CERTIFICATION,NOTICE;AND EQUITABLE TOLLIN
POINTS AND AUTHORITIES -CASE NO. C-06-7776 S
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3. Fund Has Treated All Canvassing Staff as a Class for Purposes ofDenying Them Overtime Pay
Fund has classified all Canvassing Staff as a category as exempt from overtime pay.
Complaint, 1, 3, 21-23; Answer p.9; Prentice Dec., 4; Miller Dec., 4; Petherbridge Dec., 4;
Oehler Dec., 4; Rose Dec., 4; Steely Dec., 4; Stein Dec., 4. Fund has made a decision and
implemented a common policy to treat all of its Canvassing Staff as categorically exempt from
the FLSAs overtime pay requirements. Complaint, 1, 3, 21-23; Answer p.9; Prentice Dec., 4
Miller Dec., 4; Petherbridge Dec., 4; Oehler Dec., 4; Rose Dec., 4; Steely Dec., 4; Stein
Dec., 4.
III. DISCUSSION
A. The Court Should Grant Conditional Certification and Order Notice to theClass
It is both critical and proper that this action be conditionally certified as an FLSA
collective action and that potential collective action members be provided with notice of the
action and an opportunity to opt in. Notice is critical because potential collective action member
are unaware of the action and/or the opt in procedure, and as a result are losing claims for unpaid
overtime wages to the statute of limitations on an ongoing basis. Notice is proper because, at thi
early, pre-discovery stage of the case, the initial pleadings, declarations and other pre-discovery
evidence show that Plaintiffs and all Fund Canvassing Staff are similarly situated employees.
That is, they all share the same core job duty; they have all been subject to Funds common
policy and practice of classifying all Canvassing Staff as a category as exempt on a class-wide
basis; and they all have been denied overtime pay as part of this common plan and practice.
1. The Court Has Broad Discretion to Conditionally Certify a Class andFacilitate Notice
The FLSA expressly provides that an action to recover unpaid wages and liquidated
damages may be maintained by any one or more employees for and in behalf of himself or
themselves and other employees similarly situated. 29 U.S.C. 216(b). Unlike in a Rule 23
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opt out class action, employees in an FLSA class action must affirmatively opt in by filing a
written consent with the court. Id. Until they actually opt in, class members remain subject to
the running of the statute of limitations. Id. 255, 256(b). Potential class members who do not
opt in are not bound by the judgment. See, e.g.,Adams v. Inter-Con Security Sys., Inc., No. C 06
05428 MHP, 2007 WL 1089694, *2 (N.D. Cal. Apr. 11, 2007).
Where an employee maintains an action on behalf other similarly situated employees, the
action is regarded as an FLSA class or collective action. See, e.g., Thiessen v. General Elec.
Capital Corp., 267 F.3d 1095, 1102 & n.3 (10th Cir. 2001);Edwards v. City of Long Beach, 467
F. Supp.2d 986, 989 (C.D. Cal. 2006). Although the FLSA does not require certification for
collective actions, certification in a 216(b) collective action is an effective case management
tool, allowing the court to control the notice procedure, the definition of the class, the cut-off dat
for opting in, and the orderly joinder of the parties. Edwards, 467 F. Supp.2d at 989-90 (citing
Hoffmann-La Roche v. Sperling, 493 U.S. 165, 170-72 (1989)). To this end, the Supreme Court
has recognized the discretion of district courts to facilitate the process by which potential
plaintiffs are notified of FLSA collective actions into which they may be able to opt.
Beauperthuy v. 24 Hour Fitness USA, Inc., No. 06-0715 SC, 2007 WL 707475, at *5 (N.D. Cal.
Mar. 6, 2007) (citingHoffmann-La Roche, 493 U.S. at 486)).
InHoffmann-La Roche, the Supreme Court identified the numerous considerations that
underlie and support sending notice to the class: the congressional policy that employees should
be able to proceed collectively in order to lower individual costs to vindicate rights and benefit
the judicial system by efficient resolution in one proceeding of common issues of law and fact;
the need for employees to receive accurate and timely notice of the pendency of the action in
order to achieve the intended benefits of collective action; the wisdom and necessity for early
judicial intervention in managing the litigation, ascertaining the contours of the action at the
outset, and regulating the notice and opt in process. 493 U.S. at 170-72. The Supreme Court
noted the deliberateness of congress decision to provide for collective actions, and emphasized
that, [t]he broad remedial goal of the statute should be enforced to the full extent of its terms.
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POINTS AND AUTHORITIES -CASE NO. C-06-7776 S
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Id. at 173.
In cases for unpaid wages, the additional factor that heavily favors conditional
certification and class notice is that the statute of limitations is running on each employees
claims until he or she opts in. The running of the statute of limitations prejudices potential class
members by continually cutting off periods of past employment for which they might otherwise
be able to recover unpaid wages. See, e.g.,Beauperthuy, 2007 WL 707475 at *7.6
2. The Standard for Granting Conditional Certification and Class Noticeis Very Lenient
AfterHoffmann-La Roche, courts, including this Court, have utilized a two-stage process
for deciding whether to certify FLSA class actions. At the first stage the court determines
whether to conditionally certify a class and notify potential class members about how they can
preserve their rights by opting in. At the second stage, typically on the basis of a motion to
decertify filed after the close of discovery, the court determines whether the case should proceed
to trial on a class basis. See, e.g., Thiessen, 267 F.3d at 1106;Beauperthuy, 2007 WL 707475 at
*5. Only the first stage is at issue here.
At the notice stage, the court applies a relaxed standard to determine whether the
Plaintiffs allegations and any declarations support a preliminary finding that similarly situated
employees exist who might want to opt in. The standard for certification at this stage is a
lenient one that typically results in certification. Gerlach v. Wells Fargo & Co., No. C 05-0585
CW,2006 WL 824652, *2 (N.D. Cal. Mar. 28, 2006);Adams, 2007 WL 1089694 at *4;Agdipa
v. Grant Joint Union High Sch. Dist., No. Civ. S-06-1365 DFL DAD, 2007 WL 1106099, *1
(E.D. Cal. Apr. 10, 2007);Avila v. Turlock Irrigation Dist., No. 1:06-CV-00050 OWW SMS,
6
As with other wages, overtime wages are generally due to be paid on a periodicbasis. A separate FLSA violation occurs each time the employer does not pay overtime wagesfor a particular period on the date they are due. If the due date falls outside the statutory period,the employee cannot recover unpaid wages for the period of employment covered by that duedate. Thus, as long as the statute is running, a given employee will continue to lose successiveperiods of employment to the statute of limitations.
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POINTS AND AUTHORITIES -CASE NO. C-06-7776 S
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2006 WL 3201083, *3 (E.D. Cal. Nov. 6, 2006); Stanfield v. First NLC Fin. Servs., LLC, No. C
06-3892 SBA, 2006 WL 3190527, *2 (N.D. Cal. Nov. 1, 2006); Edwards, 467 F. Supp.2d at 990
Morden v. T-Mobile USA, Inc., No. C05-2112RSM, 2006 WL 2620320, *2 (W.D. Wash. Sep. 12
2006);Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 482 (E.D. Cal. 2006); see
Beauperthuy,2007 WL 707475, at *5 (movant bears a very light burden).
Numerous courts have emphasized the minimal showing required at this stage, typically
consisting of only the allegations of the complaint and a small number of declarations, where
available. See, e.g.,Romero, 235 F.R.D. at 482-83 (allegations and two declarations);Brown v.
Money Tree Mortgage, Inc., 222 F.R.D. 676, 680-81 (D. Kan. 2004) (same); Williams v.
Sprint/United Mgmt. Co., 222 F.R.D. 483, 487 (D. Kan. 2004) (allegations in complaint were
more than sufficient to support provisional certification);Reab v. Electronic Arts, Inc., 214
F.R.D. 623, 628 (D. Colo. 2002) (allegations in complaint);Allen v. Marshall Field & Co., 93
F.R.D. 438, 442-45 (N.D. Ill. 1982) (allegations in complaint);Ballaris v. Wacker, No. 00-1627,
2001 WL 1335809, *2 (D. Or. Aug. 24, 2001) (two affidavits); Camper v. Home Quality Mgmt,
Inc., 200 F.R.D. 516, 519-21 (D. Md. 2000) (two depositions and two declarations); Zhao v.
Benihana, No. 01 Civ. 1297 (KMW), 2001 WL 845000, **2-3 (S.D.N.Y. July 5, 2001) (one
affidavit based on plaintiffs best knowledge);Aguayo v. Oldenkamp Trucking, No. CV-F-04-
6279 AWI LJO, 2005 WL 2436477, at *4 (E.D. Cal. Oct. 3, 2005) (ONeill, M.J.) (allegations in
complaint and named plaintiffs declaration); see also Beauperthuy,2007 WL 707475 at *7
(eleven declarations);Morden, 2006 WL 2620320, *3 (evidence of comparable job descriptions
and uniform exempt classification).7
///
7
In addition, the Court may consider evidence that would be inadmissible at trial.Beauperthuy,2007 WL 707475 at *7 n.5; Crawford v. Lexington-Fayette Urban County Govt.,No. 06-299-JBC, 2007 WL 293865, **1-2 (E.D. Ky. Jan. 26, 2007); White v. MPW Indus. Servs.Inc., 236 F.R.D. 363, 367-68 (E.D. Tenn. 2006); Coan v. Nightingale Home Healthcare, Inc., No1:05-CV-0101-DFH-TAB, 2005 WL 1799454, *1 n.1 (S.D. Ind. Jun. 29, 2005); see also Aguayo2005 WL 2436477 at *4.
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The lenient standard is particularly fitting here, where no discovery has been completed.
See, e.g., Thiessen, 267 F.3d at 1102 (where there has been no discovery, notice-stage
certification may be granted based on nothing more than substantial allegations that the putative
class members were together the victims of a single decision, policy, or plan) (internal
quotations and citations omitted);Bonilla v. Las Vegas Cigar Co., 61 F. Supp.2d 1129, 1139 n.6
(D. Nev. 1999) (requiring only some factual nexus which binds the named plaintiffs and the
potential class members together as victims of a particular alleged [policy or practice] (citations
omitted)); see alsoMorden, 2006 WL 2620320 at *3 (rejecting defendants reliance on
heightened standard applicable in cases where employees have been able to conduct substantial
discovery).
3. Notice is Appropriate Because Plaintiffs are Similarly Situated toOther Canvassing Staff
Notice-stage certification is warranted here because Plaintiffs allegations and evidence
are more than sufficient to satisfy the lenient first-stage similarly situated standard.
Plaintiffs allegations, declarations and documentary evidence show that they and all
other Canvassing Staff have all had the same primary job duty of collecting signatures and
soliciting donations for third-party advocacy groups. Thus, Plaintiffs have made the requisite
threshold showing to support the conditional determination that all Canvassing Staff are
similarly situated with respect to what is expected to be the central issue in the case: whether
their job duties bring them within one of the narrow exemptions from the FLSAs overtime pay
requirements.8
This is true regardless of which FLSA exemption Fund might try to prove. For example,
Plaintiffs have made a threshold showing that all Canvassing Staff are similarly situated with
respect to the duties relevant to the outside sales exemption, which requires that an employee
8 Of course, the merits of any exemption defense Defendant might plead are not tobe adjudicated on a certification motion. See, e.g., Thiessen, 1106-07.
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be engaged in making actual sales: See generally 29 U.S.C. 203(k); id. 213(a)(1); 29 C.F.R.
541.500. Plaintiffs contend that Canvassing Staffs uniformly-shared function of collecting
signatures and soliciting donations for various third party advocacy groups does notconstitute
making sales within the meaning of the exemption. But what matters for purposes of this
Motion is Plaintiffs threshold showing that all Canvassing Staff are similarly situated for
purposes of resolving this issue.
As another example, Plaintiffs have made a threshold showing that all potential class
members are similarly situated with respect to the administrative exemption, which requires
among other things that an employees primary duty be the performance of work directly related
to the management or general business operations of the employer, and that the employees
primary duty requires him or her to exercise discretion or independent judgment to make
significant business decisions. See generally 29 U.S.C. 213(a)(1); 29 C.F.R. 541.200-
541.202. Plaintiffs contend that the Canvassing Staffs uniform, core duty to collect signatures
and solicit donations for various third party advocacy groups using pre-approved scripts provided
by the Fund does notsatisfy eitherpart of this standard. But again, what matters for this Motion
is Plaintiffs notice-stage showing that all Canvassing Staff are similarly situated for
administrative exemption analysis.
In addition, Plaintiffs evidence and allegations establish that all Canvassing Staff are
similarly situated with regard to Funds common policy and practice of classifying all
Canvassing Staff as exempt from the FLSA on a categorical basis, and denying them overtime
pay on that basis. See Gerlach, 2006 WL 824652, at **6-7 (conditional certification appropriate
where putative class members were together the victims of a single decision, policy or plan.);
Complaint, 1, 3, 21-23; Answer p.9; Prentice Dec., 4; Miller Dec., 4; Petherbridge Dec., 4;
Oehler Dec., 4; Rose Dec., 4; Steely Dec., 4; Stein Dec., 4. This common policy and
practice not only attests to the essential similarity of all Canvassing Staffs job duties for
purposes of the FLSA exemption analysis, but it also shows that all Canvassing Staff appear to be
similarly situated with respect to the cause of their failure to receive overtime pay, and with
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respect to the issues of whether Funds FLSA violations have been willful and/or not committed
in good faith. See 29 U.S.C. 255(a) (FLSA statute of limitations extended to three years for
willful violations); id. 260 (if employers violations were in good faith and based on objectively
reasonable grounds, court may reduce the amount of, or not award, the liquidated damages
required by 29 U.S.C. 216(b)).
In Gerlach v. Wells Fargo, Judge Wilken noted that, Plaintiffs meet their burden of
showing that all [potential class members] are similarly situated with respect to their FLSA
claim: all [potential class members] share a job description, were uniformly classified as exempt
from overtime pay by Defendants and perform similar job duties. Gerlach, 2006 WL 824652 at
**8-9; see alsoBeauperthuy, 2007 WL 707475 at **6-7 (conditionally certifying class of
employees in misclassification case based on evidence and allegations regarding employees job
duties and uniform designation of employees as exempt under company policy); Morden, 2006
U.S. Dist. Lexis 68696 at **7-10 (conditionally certifying class of employees in misclassification
case based on minimal evidence of comparable job descriptions and uniform classification;
defendants arguments and extensive evidence regarding purported differences between class
members were more appropriate for a second-stage decertification determination); Kane v.
Gage Merchandising Servs., 138 F. Supp. 2d 212, 214-15 (D. Mass. 2001) (notice stage
certification appropriate where there was initial showing that employer classified group of
employees as exempt and did not pay them overtime). As described above, Plaintiffs
declarations and other evidence demonstrates that the proposed class members all performed
similar job duties, whether they held the title of Canvasser or Field Manager, and were all
uniformly classified by Defendant as exempt from overtime.
B. Scope of the ClassFor purposes of conditional certification and notice, the class should be comprised ofall
past, present, and future employees of Fund who have held the job title/job classification of
Canvasser, Field Manager, or any predecessor or successor job title/classification for the
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same positions (collectively, Covered Positions).9 Notice should be sent to all people
employed in Covered Positions on or after the earliest date covered by the first Fund pay date tha
falls within the three-year statutory period. For present purposes, Plaintiffs propose that the date
by which a person must have been employed in a Covered Position in order to be included in the
notice should be the date the Court files an order requiring Defendant to produce potential class
members names and contact information.
The three-year statute of limitations for willful violations, 29 U.S.C. 255(a), is properly
applied at this stage because Plaintiffs allege that Funds FLSA violations have been willful
(Complaint, 18, 22-26) and may succeed in proving willfulness at trial. See, e.g.,Adams, 2007
WL 1089694 at *10 (applying three-year statute where willful violations alleged);Beauperthuy,
2007 WL 707475, at *7 (same); Klem v. County of Santa Clara, No. C-91-20674 RMW (PVT),
1996 WL 438801, *1, *4 & n.9, *7 (N.D. Cal. Apr. 1, 1996) (same); see generallyChao v. A-On
Med. Servs.,346 F.3d 908, 918 (9th Cir. 2003) (willfulness standard is whether employer knew
or showed reckless disregard for the matter of whether its conduct was prohibited).
C. The Court Should Order and Approve Class NoticeThe Court should order Fund to produce potential class members names and contact
information to Plaintiffs counsel and approve the mailing of notice to all potential class
members. This is well-accepted procedure and is integral to the collective action procedure. See
e.g.,Hoffmann-La Roche, 493 U.S. at 168-70;Adams, 2007 WL 1089694 at *7; Gerlach, 2006
WL 824652 at *7; Klem, 1996 WL 438801 at *7.
///
///
9Plaintiffs reserve the right to amend the Complaint and seek additional notice and
an opportunity to opt in be provided at a later date to individuals who become employed inCovered Positions afterthe filing date of the Courts order granting Plaintiffs Motion and/or toindividuals who, it may be later determined, are indirectly employed or jointly employed byFund.
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D. Plaintiffs Proposed Form of Notice Should be ApprovedPlaintiffs propose a neutral and straightforward form of notice, which will inform
prospective Plaintiffs of their statutory opt-in rights. See [Proposed] Order, Ex. A. The proposed
notice explains the nature of the action and identifies Plaintiffs allegations. It makes clear that
the Court has notadjudicated the merits of the dispute, and that Fund denies any liability or
wrongdoing. The notice also identifies a website individuals can visit to obtain further
information. The notice provides Plaintiffs counsels contact information, so that potential class
members can speak with the attorneys who will presumptively represent them if they choose to
opt in.
Finally, the notice correctly summarizes potential class members options. It makes clear
that individuals are free to select their own counsel. It also warns that individuals who opt in wil
be bound by the resulting judgment, whether favorable or unfavorable. The notice is to be
accompanied by substantially the same consent to join form that Plaintiffs have already used to
communicate their consent to sue in this lawsuit. See [Proposed] Order, Ex. B.
E. The Statute of Limitations Should Be Equitably TolledUnder the FLSA, the statute of limitations for each individual party plaintiff is not tolled
until he or she files a written consent to join the action, or until the court issues an equitable
tolling order. 29 U.S.C. 256(b); Partlow v. Jewish Orphans Home of Southern Cal., Inc., 645
F.2d 757, 760 (9th Cir. 1981), abrogated on other grounds byHoffmann-La Roche, 495 U.S. 165
(1989); Owens v. Bethlehem Mines Corp., 630 F. Supp. 309, 312-13 (S.D. W. Va. 1986).
Equitable tolling is appropriate under the FLSA where similarly-situated plaintiffs,
through no fault of their own, have been unable to join the lawsuit. Baldozier v. Am. Family Mut
Ins. Co., 375 F. Supp. 2d 1089, 1093 (D. Colo. 2005) (granting tolling to the date of the filing of
the original complaint where the defendant had refused to provide contact information for
former employees); Partlow, 645 F.2d at 760 (granting equitable tolling where original consent
found invalid based on improper attorney solicitation of plaintiffs); Owens, 630 F. Supp. at 312-
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SANFRANCISCO,CA
94104
(415)434-9800
PLAINTIFFSMOTION FOR CONDITIONA
CERTIFICATION,NOTICE;AND EQUITABLE TOLLIN
POINTS AND AUTHORITIES -CASE NO. C-06-7776 S
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13 (equitable tolling where court did not rule on plaintiffs motion for collective action
certification for over a year, during which time other plaintiffs were effectively precluded from
filing written consents to join).
In this case, Plaintiffs counsel requested Fund to provide contact information for
potential FLSA collective action members, expressly for the purpose of providing notice to
similarly-situated employees of the lawsuit and giving them an opportunity to opt in. Lowe Dec
5. Plaintiffs counsel also requested a tolling agreement from Fund that would eliminate the
need for Plaintiffs to rush to the Court seeking conditional certification and equitable tolling. Id.
at Ex. A at p. 2. Defendant refused both requests. Id. at 6.
In addition, Funds categorical exempt classification practice has had the expected and
foreseeable effect of misleading potential class members as to facts and legal standards that migh
have made them question their non-receipt of overtime wages and investigate their rights by
concealing that it is their employerwho has determined to treat them as exempt and not pay them
overtime, possibly wrongly. Finally, the complaint has obviously put Defendant on notice not
only of Plaintiffs claims, but also the claims of all potential class members.
Under these circumstances, the equities weigh in favor of equitably tolling the claims of
the FLSA collective class members. SeeBaldozier, 375 F. Supp. 2d at 1093 (tolling ordered as
of the date of complaint where defendant had refused to provide contact information for former
employees);Henchy v. City of Absecon, 148 F. Supp.2d 435, 438-39 (D. N.J. 2001) (employers
summary judgment motion regarding equitable tolling denied where employee alleged that
employer assured him that overtime compensation provided for by employment agreement was
proper); cf.Randle v. City of New Albany, No. 3:05CV74, 2006 WL 2085387, **3-4 (N.D. Miss.
Jul. 25, 2006) (disputed issues of fact regarding whether employer knowingly misled employees
about its overtime obligations precluded summary judgment on equitable tolling/estoppel claim);
Owens, 630 F. Supp. at 312-13 (tolling to offset delay in progress of litigation). Plaintiffs reques
tolling as of the date Plaintiffs filed the complaint, December 19, 2006, through the date of the
Court-ordered deadline for filing Consents to Join.
Case3:06-cv-07776-SC Document28 Filed05/18/07 Page22 of 23
8/14/2019 The Fund Class Action - Motion for Certification
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LAWOFFICESOF
RUDY,EXELROD&ZIEFF,LLP.
351CA
LIFORNIASTREET,SUITE700
SANFRANCISCO,CA
94104
(415)434-9800
PLAINTIFFSMOTION FOR CONDITIONA
CERTIFICATION,NOTICE;AND EQUITABLE TOLLIN
POINTS AND AUTHORITIES -CASE NO. C-06-7776 S
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IV. CONCLUSION
For the reasons set forth above, Plaintiffs respectfully request that the Court grant their
Motion, thereby conditionally certifying this case as a FLSA class action under 29 U.S.C.
216(b); authorize dissemination of notice to the prospective class; approve Plaintiffs proposed
forms of notice and written consent to join; order Defendant Fund promptly to produce the
names, addresses, and telephone numbers of all potential collective action members; and
equitably toll the statute of limitations for all potential collective action members from December
19, 2006.
Respectfully submitted,
Dated: May 18, 2007 By: /s/ David A. LoweDavid A. LoweAttorneys for Plaintiffs
David A. Lowe (State Bar #178811)
John T. Mullan (State Bar # 221149)
RUDY, EXELROD & ZIEFF, L.L.P.351 California Street, Suite 700
San Francisco, CA 94104
Telephone: (415) 434-9800Facsimile: (415) 434-0513
Email: [email protected]
Email: [email protected]
Case3:06-cv-07776-SC Document28 Filed05/18/07 Page23 of 23