United States District Court, S.D. Indiana, Indianapolis Division
NICK WILLIAMS, et al., individually and on behalf of others similarly situated, Plaintiffs,
ANGIE'S LIST, INC., Defendant.
ENTRY ON PLAINTIFFS' RENEWED MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION
WILLIAM T. LAWRENCE, JUDGE
cause is before the Court on the Plaintiffs' Renewed
Motion for Conditional Certification of Collective Action and
Court-Authorized Notice Pursuant to 29 U.S.C. § 216(b)
of the Fair Labor Standards Act (“FLSA”) (Dkt.
No. 75). This motion is fully briefed, and the Court, being
duly advised, DENIES the motion for the
reasons, and to the extent, set forth below.
Plaintiffs previously sought conditional certification for a
collective action of current and former Angie's List,
Inc. (“Angie's List”) employees working under
a number of different job titles in various departments.
See Dkt. No. 15. The Plaintiffs did not provide
sufficient support for conditional certification, and
certification was denied. See Dkt. No. 69. The
Court, however, allowed the Plaintiffs the opportunity to
file another motion for conditional certification, which they
now present to the Court.
Plaintiffs now seek conditional certification for a
collective action of a number of current and former
employees, including individuals who were Advertising Sales
Consultants in the Sales Origination Department from
three years prior to the date of this Entry to October 1,
2015, and employees in the following positions in the Sales
Origination Department from October 1, 2015, to the present:
Discovery Representative, Eligibility Representative, and
Senior Solutions Consultant. Dkt. No. 75 at 3. The Plaintiffs
also seek to include in the collective action current and
former employees who work or worked as Big Deal
Representatives or E-Commerce Representatives in the Big Deal
Department or in the E-Commerce Department from three years
prior to the date of this Entry to the present. Id.
This time around, the Plaintiffs also appear to seek, in the
alternative, conditional certification for six possible
collective sub-classes -one for current and former employees
in each of the respective job titles above. See Dkt.
No. 84 at 2 (“If the Court finds that conditional
certification is not warranted for one or more positions held
by [the] Plaintiffs, conditional certification should still
be granted for Advertising Sales Consultants and other
subclasses.”). The Plaintiffs, however, have not
submitted an updated proposed notice that reflects what
notice they would provide to potential opt-in plaintiffs
other than one that includes individuals in all six of the
job titles. They “reiterate their request that the
Court approve [docket number 46-3] for dissemination to the
collective.” Dkt. No. 76 at 15.
ease of reference, the Court refers to current and former
employees in the six job titles as “Putative Class
List again objects to the appropriateness of the FLSA
collective action and maintains that, in a number of ways,
the Plaintiffs fail to show that they are similarly situated
to the Putative Class Members or each other. Angie's List
also contends that the Plaintiffs have not offered any new
substantive evidence to support their position and that they
continue to fail to show a common policy or plan that would
have required the Putative Class Members to underreport or
not report overtime hours.
FLSA COLLECTIVE ACTION
Court now reiterates the standard it presented in its first
Entry on Plaintiffs' Motion for Conditional Certification
of Collective Action (Dkt. No. 69).
FLSA provides that an action for unpaid overtime may be
brought “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). When an employee
brings an FLSA claim on behalf of other similarly situated
employees, it is termed a “collective action.” An
individual can join the collective action only by consenting
to become a participant. See 29 U.S.C. § 216(b)
(“No employee shall be a party plaintiff to any such
action unless he gives his consent in writing to become such
a party and such consent is filed in the court in which such
action is brought.”); see also Espenscheid v.
DirectSat USA, LLC, 705 F.3d 770, 771-72 (7th Cir. 2013)
(comparing requirement that FLSA collective action plaintiffs
must opt in to action with procedure of opting out of class
actions governed by Fed.R.Civ.P. 23); Ervin v. OS Rest.
Servs., Inc., 632 F.3d 971, 973 (7th Cir. 2011) (same).
the FLSA does not specify how collective actions are to
proceed, the management of these actions has been left to the
discretion of the district courts. See Hoffmann-La Roche
v. Sperling, 493 U.S. 165, 171-72 (1989). In this
circuit, district courts generally follow a two-step inquiry
when certifying collective actions. In the first step, the Court
must determine whether to conditionally certify an action as
a collective action. “The sole consequence of
conditional certification is the sending of court-approved
written notice to employees, who in turn become parties to a
collective action only by filing written consent with the
court.” Genesis Healthcare Corp. v. Symczyk,
133 S.Ct. 1523, 1530 (2013) (internal citations omitted).
first step, the Court considers “whether the
representative plaintiff has shown that she is similarly
situated to the potential class plaintiffs.” Austin
v. CUNA Mut. Ins. Soc'y, 232 F.R.D. 601, 605 (W.D.
Wis. 2006). The FLSA does not define the term
“similarly situated” or instruct judges when to
exercise their discretion and authorize notice to potential
plaintiffs. District courts in this circuit typically apply
the following analysis: To be similarly situated at the first
step, the Plaintiffs need make only a modest factual showing
that they and potential plaintiffs were victims of a common
policy or plan that violated the law. See, e.g.,
Bradley v. Arc of N.W. Ind., Inc., No. 2:14-cv-204,
2015 WL 2189284, at *2 (N.D. Ind. May 11, 2015) (citing
Allen v. The Payday Loan Store of Ind., Inc., No.
2:13-cv-262, 2013 WL 6237852, at *1 (N.D. Ind. Dec. 3,
2013)); see also Camilotes v. Resurrection Health Care
Corp., 286 F.R.D. 339, 345 (N.D. Ill. 2012). The Court
analyzes the pleadings and any affidavits to determine
whether that modest showing is made. Knox v. Jones
Group, 208 F.Supp.3d 954, 958 (S.D. Ind. 2016).
Court conditionally certifies a collective action and
authorizes notice to potential participants, it proceeds to
the second step in the certification process at the close of
discovery and after the opt-in process is completed.
Jirak v. Abbott Labs., Inc., 566 F.Supp.2d 845, 848
(N.D. Ill. 2008); Austin, 232 F.R.D. at 605. In that
step, because discovery is completed and the Court has more
information on which to base its decision, a defendant can
request that the Court reevaluate whether the opt-in
plaintiffs are similarly situated to the named representative
plaintiffs. Jirak, 566 F.Supp.2d at 848 (citing
Heckler v. DK Funding, 502 F.Supp.2d 777, 779 (N.D.