7:15-cv-00135
W.D. Tex.Feb 3, 2016Background
- Plaintiff Stacy Graham filed a collective action and the Court conditionally certified the class on January 11, 2016, directing the parties to meet and confer on a Notice and Consent Form for potential opt-in plaintiffs.
- The parties submitted a joint notice of dispute over three provisions in the proposed Notice and Consent Form.
- Defendant Jet Specialty, Inc. objected to (1) paragraph six of the proposed Notice, (2) paragraph three of the proposed Consent Form, and (3) inclusion of an informational questionnaire with the Consent Form.
- The Court previously instructed the parties that notice must explicitly inform potential opt-in plaintiffs they may contact any attorney and are not required to retain Plaintiff’s counsel.
- Plaintiff’s counsel wanted the questionnaire to facilitate contacting clients who opt in; Defendant argued it was unnecessary, confusing, and could improperly signal that opt-ins must retain Plaintiff’s counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether paragraph six of the proposed Notice should remain | Not contested as necessary by Graham but included in submitted form | Paragraph six duplicates representation info and fails to explicitly state opt-ins may hire any counsel; should be removed | Removed — paragraph six must be deleted because it duplicates other text and does not add required language that opt-ins may contact any attorney |
| Whether paragraph three of the Consent Form must allow opt-ins to choose other counsel explicitly | Graham wanted consent form to allow submission to Plaintiff’s counsel and reflect choice of counsel | Jet argued current wording could imply opt-ins must use Plaintiff’s counsel and that consent forms may not be required to be submitted through Plaintiff’s counsel | Modified — Court ordered paragraph three reformed to present an explicit choice: either retain Loren or provide another attorney’s contact information |
| Whether an informational questionnaire may accompany the Consent Form | Graham: questionnaire needed so counsel can easily contact newly-retained clients | Jet: questionnaire is confusing, unnecessary, may imply retention requirement, and Court/defendant should not approve information obtained | Removed — questionnaire must be deleted because it’s not relevant to notice/consent and may improperly influence opt-ins |
| Whether the revised Notice and Consent Form otherwise may be approved | Graham sought overall approval after revisions | Jet objected to the disputed provisions but did not oppose the rest | Approved — after deleting paragraph six, reforming paragraph three, and removing the questionnaire, the forms are approved |
Key Cases Cited
- Tolentino v. C&J Spec-Rent Servs. Inc., 716 F. Supp. 2d 642 (S.D. Tex. 2010) (notice must inform potential class members they may contact any attorney of their choosing)
- Behnken v. Luminant Min. Co., LLC, 997 F. Supp. 2d 511 (N.D. Tex. 2014) (consent forms may be submitted to plaintiff’s counsel so long as they do not require submission through plaintiff’s counsel)
- Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165 (U.S. 1989) (district courts have discretion to facilitate notice to potential plaintiffs under 29 U.S.C. § 216(b))