United States District Court, N.D. California
ORDER GRANTING MOTION FOR ADMINISTRATIVE RELIEF TO
INCLUDE LINK TO DOCUSIGN RE: DKT. NO. 196
A.WESTMORE United States Magistrate Judge
April 27, 2017, the Court granted in part and denied in part
Plaintiffs' motion to expand the collective action to
include individuals who signed an arbitration agreement,
limiting the expansion to individuals in California. (Dkt.
No. 178 at 25.) The parties were ordered to meet and confer
on an appropriate notice for these individuals. (Id.
at 25-26.) The parties then stipulated to the form of the
notice, but had two disputes over the notice process, namely:
(1) whether Plaintiffs should be required to hire a
third-party administrator to administer the notice, and (2)
whether Plaintiffs were permitted to send a reminder notice.
(Dkt. No. 189 at 1.) On June 22, 2017, the Court permitted
Plaintiffs' counsel to administer the notice rather than
hiring a third-party administrator, and allowed Plaintiffs to
send a reminder notice. (Dkt. No. 193.) The Court warned,
however, that Plaintiffs "may not unilaterally alter the
notice to the collective action in any way, unless they have
obtained approval from Defendants and/or the Court. Failure
to comply may result in the Court requiring future notices to
be sent by a third-party administrator." (Id.
5, 2017, Plaintiffs filed the instant motion for
administrative relief, seeking leave to include a link to
DocuSign on the notice to be sent via e-mail to the expanded
collective. (Plfs.' Mot., Dkt. No. 196.) Defendant 2020
Communications, Inc. timely opposed. (Def.'s Opp'n,
Dkt. No. 198.)
reviewed the parties' filings, the Court GRANTS
Plaintiffs' motion to include a link to DocuSign. As
previously noted by the Court, the inclusion of a link is not
substantive. (Dkt. No. 193 at 2 n.1.) Further, Defendants
have not cited any authority that would prohibit the use of
DocuSign for obtaining opt-ins to a collective action. While
Defendants' cite to Saechao v. Landry's Inc.
for the proposition that "'digital signatures
provided through a third party, Docusign' were akin to
'typed text . . . in lieu of a signature, '"
making such signatures invalid when filed as one continuous
document without a filers attestation, Saechao was
in the context of evidentiary objections to declarations of
putative class members, used in support of a motion for class
certification. No. C 15-815-WHA, 2016 WL 1029479, at *12
(N.D. Cal. Mar. 15, 2016). Here, in contrast, the opt-ins are a
request to join in a pending lawsuit. The Court also finds
that Defendants have not sufficiently established a risk of
fraud or forgery by signing through DocuSign. Absent
authority that DocuSign cannot be used to obtain opt-ins
specifically, the Court will permit Plaintiff to include a
link to DocuSign.
Court will, however, require that Plaintiffs remove any
language from the linked to website that was not approved by
the Court and/or Defendants. According to Defendants, when
they clicked on the link, they were directed to a website
that "thanked" people for their interest and
referred to 2020 as the only Defendant in the case. (Miller
Decl. ¶ 4, Dkt. No. 198-1.) Such additional language is
inappropriate; the linked website should only contain the
consent form agreed to by the parties. While Plaintiffs
appear to argue that the Court cannot dictate communications
between Plaintiffs' counsel and individuals after they
click on the link, the Court disagrees. The act of clicking
on the link does not itself create an opt-in; the individual
must still fill out, sign, and submit the consent form before
they will be deemed to have opted in. Thus, the Court still
retains authority to control the language that will be
presented to the individuals during the opt-in process.
Plaintiffs must either remove all extraneous language, or
receive approval from Defendants and/or the Court.
Court notes that this is the third time the Court has been
required to admonish Plaintiffs about modifying notices or
procedures without permission. (Dkt. Nos. 123 at 1-2; Dkt.
No. 193 at 2.) If Plaintiffs attempt to again modify the
notice procedure without approval, the Court may require the
use of a third-party administrator for future notices, at the
expense of Plaintiffs' counsel.
 Defendants' remaining authority is
also unpersuasive. Piper v. RGIS Inventory Specialists,
Inc. did not address the matter of electronic
signatures, only pointing to a 1962 Illinois case that a
typewritten document containing an individual's name but
no signature -- electronic or otherwise -- was not a valid
consent. No. C-07-32 (JCS), 2007 WL 1690887, at *7 (N.D. Cal.
June 11, 2007). Harris v. Vector Marketing Corp. is
distinguishable because there, the notice and consent form
were mailed to individuals, not e-mailed, thus minimizing the
burden on individuals to mail back a paper opt-in. 716
F.Supp.2d 835, 846-47 (N.D. Cal. 2010). Further, it is
unclear if the plaintiffs had proposed the use of DocuSign or
a similar program to opt in, rather than simply permitting
individuals to e-mail back an opt-in.
 The only exception is information that
an individual needs to provide in order to use the website,
such as a place to input a name and e-mail address, if
 An individual could, for example,
click the link to review the consent form, and then decide
that they will not fill out or submit the form because they