The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S MOTION TO CONDITIONALLY CERTIFY A CLASS BE GRANTED (Doc. 47, 69, 73.)
On October 30, 2012, the Magistrate Judge issued Findings and Recommendations ("F&Rs") that Plaintiff's supplemental motion for conditional class certification be granted.*fn1 (Doc. 73.) On November 6, 2012, both parties filed objections to the F&Rs; on November 13, 2012, each party filed responses to the other party's objections. (Docs. 74, 75, 76, 77.) The matter is now pending before the district court.
In its objections, SSC renewed its opposition to Plaintiff's motion and supplemental motion on the grounds stated in its opposition briefs, asserting that the Magistrate Judge erred in finding that the proposed class is similarly situated. (Doc. 74, p. 1-2.) Further, even to the extent the district court adopts the F&Rs regarding certification of the proposed class, SSC requested clarification as to the scope of the contact information it must provide to Plaintiff as well as specification as to contact between Plaintiff's counsel and the putative class during the notice period. Further, SSC objected to the temporal scope of the notice. (Doc. 74, p. 2-10.)
Plaintiff also filed partial objections to the F&Rs, objecting to any recommendation that contact with the putative class during the notice period be limited beyond the protections of the California Rules of Professional Conduct. (Doc. 75.) Plaintiff also asserted that the F&Rs are ambiguous about what contact with the putative class is permissible, and notes that there are no reciprocal protections binding SSC from contact with the putative class.
In response to Plaintiff's objections, SSC maintained that the communication limitations recommended by the Magistrate Judge are appropriately imposed as part of the district court's discretion to facilitate the notice process. (Doc. 76.) SSC argued that Plaintiff and her counsel should be prohibited from unfettered communications with the putative class during the notice period to ensure that the goals of providing timely, accurate, and informative notice are met. (Doc. 76, p. 3.) To the extent Plaintiff seeks a mutual prohibition on SSC with regard to contact with the putative class, such a restriction ignores the reality that there are many putative class members employed by SSC and a restriction on contact is not feasible. (Doc. 76, p. 6 ("Plaintiff's proposed restrictions ignore the reality of the daily communications between and among the putative plaintiffs and SSC, thereby opening the door for inadvertent violations of the proposed Court Order and imposing on defense counsel the monumental task of informing all of SSC's employees that may be bound by such an Order.").)
In response to SSC's objections to the F&Rs, Plaintiff argued that she must be provided with additional contact information beyond the names and mailing addresses of the putative class members. (Doc. 77.) Plaintiff asserted she is entitled to this information so that she can quickly confirm whether the mailing addresses provided by SSC are accurate and efficiently deal with mailed notices that are returned; further, Plaintiff noted that SSC has already provided her with phone numbers of some members of the putative class as part of the initial class discovery and there is no reason now to prevent Plaintiff from receiving the remainder of the phone contact information for the putative class. (Doc. 77, 3:7-4:16.) Plaintiff argued that she should not be prohibited from communicating with the putative class, and even if she is, such prohibition should be mutual and imposed on SSC as well. (Doc. 77.)
A. Certification of the Proposed Class and Temporal Scope of the Notice
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that the Magistrate Judge's Findings and Recommendations regarding conditional class certification are supported by the record and proper analysis and conditional certification of an FLSA class is warranted.
The Magistrate Judge recommended that, due to potential tolling issues that are not yet resolved, notice of the action be issued to current and former employees who fall within the class definition from December 20, 2007, through the present. SSC argued that the FLSA statute of limitations is, at most, three years and individual opt-in plaintiffs' cases do not "commence" until their written consent to suit is filed. Currently, no opt-in plaintiffs have joined this suit. Thus, any notice should be temporally limited to three years before the date of the issuance of the notice, rather than three years prior to the filing of Plaintiff's complaint. (Doc. 74, p. 6-7.) Further, SSC presented several arguments why tolling of the statute of limitations is inappropriate in this case. (Doc. 74, p. 7-10.)
The general practice with regard to temporal scope of the class is to extend it to three years prior to the Court's approval of the notice. See Guzelgurgenli v. Prime Time Specials Inc., __ F. Supp. 2d __, 2012 WL 3264314, at * 14 (E.D.N.Y. Aug. 8, 2012). Plaintiff asserted that she intends to file a motion to toll the statute of limitations, but the matter of tolling has not yet been presented or decided by the Court. Even if SSC's assertions are correct, and it is found that there are no grounds to toll the applicable statute of limitations when the issue is presented to the Court, out of an abundance of caution, the temporal scope of the class shall be extended to three years prior to the date the complaint was filed, i.e., December 20, 2007.
Accordingly, as recommended in the F&Rs, the following class is conditionally certified: All current and former SSC employees, who at any time between December 20, 2007, and present worked in the "Medicare Outreach" sub-division performing client/member outreach duties, who worked overtime, but were classified as exempt, excluding anyone who worked exclusively as a ...