# Brown v. Trinity Properties LLC

> District Court, E.D. Arkansas · December 13, 2019

URL: https://www.frixlaw.com/law-library/cases/10004419

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** December 13, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10004419

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

DAVID BROWN, TARA CROW, MARIO PLAINTIFFS
FOY, DENISE SCOTT, DON HARRIS,
ASHLEY MOORE and TIMOTHY GREEN,
Each Individually and on Behalf of
All Others Similarly Situated

vs. No. 4:19-cv-617-LPR

TRINITY PROPERTY MANAGEMENT, LLC,
TRI 5 JACKSONVILLE, LLC, and ANDMARK
CHAPEL RIDGE OF CONWAY, LLC DEFENDANTS

AMENDED ORDER
Before the Court is Plaintiffs’ Motion For Conditional Certification, For Disclosure of
Contact Information, and To Send Notices.1 I have significant concerns about whether collective
treatment is legally warranted on the record of this case. But, for the several reasons explained
below, I will grant the motion in part.
I. BACKGROUND
Plaintiffs bring this suit on behalf of themselves and all former and current hourly
employees of Defendants.2 Plaintiffs’ collective action claims primarily concern the alleged
failure of Defendants to properly calculate and pay minimum and overtime wages.3 Plaintiffs
claim Defendants’ conduct violated the Fair Labor Standards Act (“FLSA”).4 Plaintiffs estimate
that potential members of the FLSA collective(s) exceed thirty (30) persons.5 Plaintiffs moved for

1 Pls.’ Mot. for Conditional Certification (Doc. 13).
2 Id. at 1-2.
3 Pls.’ Br. in Supp. Mot. for Conditional Certification (Doc. 14 at 10).
4 Pls.’ Amend. Compl. (Doc. 2 at 12) (citing 29 U.S.C. §§ 206 and 207).
5 Id. at 9.
conditional certification,6 alleging that Defendants’ hourly employees are “similarly situated”
because Defendants “have a uniform policy and practice of improperly paying their hourly
employees in violation of [the FLSA].”7 Attached to the Motion were declarations from five (5)
Plaintiffs reiterating several (but not all of the) allegations made in the Amended Complaint.8

II. LEGAL STANDARD
Both Plaintiffs and Defendants appear to accept the two-step inquiry that a substantial
majority of district courts (both inside and outside the Eighth Circuit) have adopted to determine
whether a collective action may proceed.9 Specifically, both parties appear to accept that, for
purposes of conditional certification at the notice stage, Plaintiffs only need to make a “modest
factual showing”10 in their pleadings and affidavits that they were victims of a single decision,

policy, or plan. For the purposes of this case, the Court will assume that the lenient standard
applies at the conditional certification stage.11

6 Pls.’ Mot. for Conditional Certification (Doc. 13).
7 Pls.’ Br. in Supp. Mot. for Conditional Certification (Doc. 14 at 1-2).
8 Decl. of Ashley Moore (Doc. 13-7); Decl. of Richard Burton (Doc. 13-8); Decl. of Timothy Green (Doc. 13-9); Decl.
of Delfred McLennan (Doc. 13-10); Decl. of Denise Scott (Doc. 13-11).
9 Pls.’ Br. in Supp. Mot. for Conditional Certification (Doc. 14 at 3-4); Defs.’ Resp. to Pls.’ Mot. for Conditional
Certification (Doc. 17 at 8). See also Ford v. Townsends of Ark., Inc., No. 4:08CV00509 BSM, 2010 WL 1433455, at
*3 (E.D. Ark. Apr. 9, 2010) (“The phrase ‘similarly situated’ is not directly defined by the FLSA and has not been
clearly defined by the Eighth Circuit; however, this district and other district courts within the Eighth Circuit have
applied a two step approach in determining whether a proposed class is similarly situated. First, there is a notice stage
and, second, there is an opt-in merits stage.”) (internal citations omitted).
10 Pls.’ Br. in Supp. Mot. for Conditional Certification (Doc. 14 at 6); Defs.’ Resp. to Pls.’ Mot. for Conditional
Certification (Doc. 17 at 8); see also Ford, 2010 WL 1433455, at *3; Helmert v. Butterball, LLC, No. 4:08CV00342
JLH, 2009 WL 5066759, at *3 (E.D. Ark. Dec. 15, 2009).
11 In future cases, one or more parties may raise and brief the question of whether an alternative, stricter approach is
more consistent with the text, structure, and history of 29 U.S.C. § 216(b) than this lenient majority approach. The
Court does not decide that issue today.
III. DISCUSSION

A. The Modest Factual Showing
While it is a very close call in my view, Plaintiffs12 appear to have just chinned the low bar
needed to make a modest factual showing that they were victims of a single decision, policy, or
plan that affected themselves and other employees in similar ways. In declarations, five (5)
Plaintiffs state that they, and the other unnamed employees they knew, generally worked over forty
(40) hours per week.13 The importance of this is that if Plaintiffs and other employees were
working over forty (40) hours in a week, any improperly omitted time during that week will trigger
overtime pay violations.
These five (5) Plaintiffs state that Defendants automatically deducted lunch period hours

even though these Plaintiffs usually worked during that period.14 They also state that they spoke
to other employees that “it happened to.”15 Though the alleged automated deduction for a lunch
period may be a uniform policy that unlawfully affects Plaintiffs and other employees in similar
ways, the unlawfulness of this alleged policy depends on whether Defendants were aware that their
employees were working through lunch. As Defendants note, the declarations do not allege that
“any company policy, or any supervisor instructed them not to take a lunch break.”16 Plaintiffs
never state that Defendants knew that Plaintiffs or other employees worked during the lunch
period. And what Defendants knew about specific Plaintiffs’ lunch period habits may differ

12 Currently, Plaintiffs consist of the seven (7) named plaintiffs and four (4) plaintiffs who have opted in since the
Complaint was filed.
13 Decl. of Ashley Moore (Doc. 13-7 at 2); Decl. of Richard Burton (Doc. 13-8 at 3); Decl. of Timothy Green (Doc.
13-9 at 3); Decl. of Delfred McLennan (Doc. 13-10 at 3); Decl. of Denise Scott (Doc. 13-11 at 2).
14 Id.
15 Decl. of Ashley Moore (Doc. 13-7 at 2-3); Decl. of Richard Burton (Doc. 13-8 at 3); Decl. of Timothy Green (Doc.
13-9 at 3); Decl. of Delfred McLennan (Doc. 13-10 at 3); Decl. of Denise Scott (Doc. 13-11 at 2-3).
16 Defs.’ Resp. to Pls.’ Mot. for Conditional Certification (Doc. 17 at 6).
significantly across the potential collective(s). Were the declarations about lunch deductions the
only relevant factual showing, I would likely deny conditional certification. They are not,
however, the only factual showings, as Plaintiffs also raise allegations concerning routine
subtractions by Defendants from employees’ recorded hours.
The Amended Complaint states that “Defendants maintained a policy wherein employees

who exceeded forty (40) hours per week had their hours changed to bring them back down to forty
(40) hours a week, on a regular basis.”17 The five (5) Plaintiffs that submitted declarations also
state that they personally witnessed management shave hours from their own and other unnamed
employees’ time.18
Although not repeated in a declaration, the Amended Complaint specifically alleges that
one Plaintiff (Ms. Tara Crow) “refused to make these changes and regional manager for
Defendants, Lance Nelson, edited employee hours.”19 The allegation in the Amended Complaint
on its own would not have convinced me to conditionally certify. Without any explanation of
whether this was an isolated or repeated occurrence, how many employees it affected, and how

many locations it took place in, it is of miniscule value in determining whether there was a policy,
practice, or plan in place.
However, the allegation concerning Ms. Crow, in conjunction with five (5) other plaintiffs
declaring similar (even if less detailed) occurrences across multiple apartment complexes, is just
enough to make the necessary modest factual showing. In coming to this conclusion, I emphasize

17 Pls.’ Amend. Compl. (Doc. 2 at 6-7).
18 Decl. of Ashley Moore (Doc. 13-7 at 3); Decl. of Richard Burton (Doc. 13-8 at 3); Decl. of Timothy Green (Doc.
13-9 at 3); Decl. of Delfred McLennan (Doc. 13-10 at 3); Decl. of Denise Scott (Doc. 13-11 at 3).
19 Pls.’ Amend. Compl. (Doc. 2 at 7).
again that, under the majority approach adopted for purposes of this case,20 this Court is applying
the “lenient standard” that courts in this Circuit have used at the first stage of the two stage
certification process.21 Defendants’ frustration with what are basically cookie-cutter declarations22
notwithstanding, the Plaintiffs have signed and sworn to them. At this stage, those statements
regarding what the Plaintiffs personally witnessed are evidence that must be given weight.23

The five (5) Plaintiffs who submitted declarations also state that they were generally not
paid for their “on-call” time.24 And three (3) plaintiffs state that they received credit for their on-
premises rent in lieu of some part of hourly wages, but this credit was not considered part of their
base pay for overtime calculations as required by 29 C.F.R. § 778.208.25
The allegations suggest (at least for the purposes of this conditional certification stage) that
there were uniform policies at several apartment complexes that potentially violated the FLSA and
had similar (though not necessarily identical) effects on Plaintiffs and other employees. For now,
that is enough to conditionally certify the collective action.26 In reaching this conclusion, I
emphasize that the Court is precluded from making determinations about the merits of the parties’

20 See supra note 9; McQuay v. Am. Int’l Group, No. 4:01CV00661 WRW, 2002 WL 31475212, at *2 (E.D. Ark. Oct.
25, 2002) (noting that “a majority of courts have adopted a two-step process”).
21 See, e.g., Helmert, 2009 WL 5066759, at *3 (“In the first stage, or ‘notice stage,’ courts apply a lenient standard to
determine whether persons similarly situated to the named plaintiffs exist and should receive notice.”); Ford, 2010
WL 1433455, at *3 (stating that the “more stringent factual inquiry” and “stricter standard” is applied in the second
stage).
22 See Defs.’ Resp. to Pls.’ Mot. for Conditional Certification (Doc. 17 at 3-4).
23 Helmert, 2009 WL 5066759, at *4 (“So long as the plaintiffs provide evidence that the proposed class members
were victims of the same policy or plan, conditional certification is appropriate.”).
24 Decl. of Ashley Moore (Doc. 13-7 at 2); Decl. of Richard Burton (Doc. 13-8 at 3); Decl. of Timothy Green (Doc.
13-9 at 3); Decl. of Delfred McLennan (Doc. 13-10 at 3); Decl. of Denise Scott (Doc. 13-11 at 2).
25 Decl. of Richard Burton (Doc. 13-8 at 2-3); Decl. of Timothy Green (Doc. 13-9 at 2-3); Decl. of Delfred McLennan
(Doc. 13-10 at 2-3); see also Pls.’ Amend. Compl. (Doc. 2 at 7).
26 Ford, 2010 WL 1433455, at *3 (“During the notice stage . . . . [c]lass members need not be identically situated.”);
Helmert, 2009 WL 5066759, at *3 (“In the first stage, or ‘notice stage,’ . . . . [p]laintiffs need not show that members
of the conditionally certified class are identically situated.”).
claims and defenses at this stage,27 and that “[t]he sole consequence of conditional certification is
the sending of court-approved written notice to employees . . . .”28

B. The Scope of the Collectives
Plaintiffs’ motion as it pertains to the scope of the collectives is granted in part and denied
in part. In their Motion For Conditional Certification, Plaintiffs asked the Court to certify the
following collective: “All hourly-paid employees since September 4, 2016.”29 Previously, in their
Amended Complaint, Plaintiffs had suggested certification of two collectives: (1) “All
maintenance personnel employed during the three years preceding the filing of the Complaint” and
(2) “All office personnel employed during the three years preceding the filing of the Complaint.”30
The Court believes that conditionally certifying two collectives—one for hourly office personnel

and one for hourly maintenance personnel—is the most appropriate course of action at this stage.
But those two collectives are still vastly overbroad in geography and time. Even under the very
lenient standard for conditional certification, there is no basis anywhere in the evidence to suggest
that the extensive and widespread groups of individuals covered by these purported collectives are
similarly situated to the named Plaintiffs.31
As to geography, according to an “incomplete list” provided by Plaintiffs, Defendant
Trinity Property Management, LLC owns and/or operates at least one hundred and seventy-one

27 Ford, 2010 WL 1433455, at *5 (“[T]he merits of the parties’ claims and defenses are not reached at the conditional
certification stage.”); Helmert, 2009 WL 5066759, at *4 (“[T]he Court does not reach the merits of the parties’ claims
and defenses at the certification stage.”); McQuay, 2002 WL 31475212, at *1 (“Conditional certification of a collective
action and the issuance of notice do not require this Court to adjudicate the merits of plaintiffs’ claims”).
28 Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013).
29 Pls.’ Mot. for Conditional Certification (Doc. 13 at 3).
30 Pls.’ Amend. Compl. (Doc. 2 at 10).
31 See Helmert, 2009 WL 5066759, at *17-18 (dismissing claims on behalf of employees at facilities where the
plaintiffs were not employed).
(171) apartment complexes in at least twelve (12) states.32 In Arkansas alone, Defendant Trinity
Property Management owns and/or operates at least eighty-three (83) apartment complexes
dispersed around the State. But even taking the Amended Complaint and the five (5) Plaintiffs’
declarations together, Plaintiffs only have factual support to allege problematic pay policies or
practices at eight (8) specific apartment complexes—all clustered in or around the greater Little

Rock metro area.33 Indeed, of those eight (8) apartment complexes, only four (4) have more than
one Plaintiff currently complaining of allegedly illegal overtime pay policies.34 There is no
evidence that the practices or policies that Plaintiffs object to are used in any of Defendants’ other
apartment complexes or affect workers similarly at those other complexes. Notice should thus be
limited to employees who have worked at the eight (8) apartments where Plaintiffs have worked.35
As to time, the earliest that one of the Plaintiffs began working for Defendants was
December of 2017.36 Prior to that date, there is no evidence to suggest that Defendants had

32 Trinity Multifamily, Managed Properties, https://trinitymultifamily.com/holdings/. See also Decl. of Ashley Moore
(Doc. 13-7 at 2); Decl. of Richard Burton (Doc. 13-8 at 2); Decl. of Timothy Green (Doc. 13-9 at 2); Decl. of Delfred
McLennan (Doc. 13-10 at 2); Decl. of Denise Scott (Doc. 13-11 at 2) (stating that Defendant “Trinity Property
Management operates many properties similar to the propert[ies they] worked at; an incomplete list can be found on
their website www.trinitymultifamily.com.”).
33 Plaintiffs David Brown, Mario Foy, Denise Scott, Ashley Moore, and Timothy Green worked at the “Tri-Five
location in Jacksonville.” Pls.’ Amend. Compl. (Doc. 2 at 3). Mr. Green also worked at the “Chapel Ridge location
in Conway.” Id. Plaintiffs Tara Crow and Delfred McLennan worked at the Arrowhead location in North Little Rock.
Id.; Decl. of Delfred McLennan (Doc. 13-10 at 1). Plaintiff Don Harris worked at the “West[b]ridge location” in Little
Rock. Pls.’ Amend. Compl. (Doc. 2 at 3). Plaintiff Richard Burton states that he worked at “Westbridge, Spanish
Rock; Terra Vista, The Villas in Conway; Legacy Point; Chapel Ridge and other properties . . . .” Decl. of Richard
Burton (Doc. 13-8 at 1). By cross-referencing the properties Mr. Burton names with the list of Defendants’ managed
properties on the website that Mr. Burton provides (id. at 2) and by disregarding possible punctuation errors in the
declaration, it appears that Mr. Burton is referring to the Westbridge apartments in Little Rock, the Spanish Rock
apartments in Little Rock, the Terra Vista apartments in Little Rock, the Village apartments in Conway, the Legacy
Pointe apartments in Little Rock, and the Andmark Chapel Ridge I&II apartments in Conway.
34 See id.
35 See Love v. Retzer, LLC, No. 5:13-CV-292-DPM, 2014 WL 11081012, at *1 (E.D. Ark. Nov. 18, 2014) (limiting
notice to restaurant territories where plaintiffs were employed).
36 In his declaration, Plaintiff Delfred McLennan stated that he worked for Defendants from December of 2017 until
October of 2019. Decl. of Delfred McLennan (Doc. 13-10 at 1). Plaintiff Ashley Moore stated that she worked for
Defendants from June of 2018 to July of 2019. Decl. of Ashley Moore (Doc. 13-7 at 1). Plaintiff Richard Burton
stated that he has worked for Defendants since August of 2019. Decl. of Richard Burton (Doc. 13-8 at 1). Plaintiff
Timothy Green stated that he worked for Defendants from July of 2018 to September of 2019. Decl. of Timothy
implemented the offending policies or that any such offending policies affected employees in a
similar way. Notice should be limited to employees who worked for Defendants during or after
December of 2017.37
The two conditionally certified collectives, therefore, must be narrowed to all hourly office
personnel and hourly maintenance personnel employed between December of 2017 and the filing

of the Complaint at Westbridge apartments in Little Rock, Legacy Pointe apartments in Little
Rock, Spanish Rock apartments in Little Rock, Terra Vista apartments in Little Rock, Arrowhead
Estates apartments in North Little Rock, Chapel Ridge apartments in Conway, The Village
apartments in Conway, and TRI 5 Jacksonville apartments in Jacksonville.
C. Notice

The U.S. Supreme Court has held that, in overseeing the notice process, “courts must be
scrupulous to respect judicial neutrality. To that end, trial courts must take care to avoid even the
appearance of judicial endorsement of the merits of the action.”38 I take that mandate for
scrupulousness and fairness very seriously, as do other district courts in this State and in this

Green (Doc. 13-9 at 1). Plaintiff Denise Scott stated that he worked for Defendants from July of 2018 to April of
2019. Decl. of Denise Scott (Doc. 13-11 at 1). Plaintiffs provide no information about the dates on which Plaintiffs
David Brown, Tara Crow, Mario Foy, Don Harris, Tito Williams, or Garyling Childress began working for
Defendants.
37 Even if Plaintiffs had provided evidence of violations preceding December 2017, under the FLSA statute of
limitations a cause of action arising out of a willful violation must be commenced within three years after the cause
of action accrued. 29 U.S.C. § 255(a). In a collective action, “the action is commenced when a party files his or her
written consent to become part of the action.” Redman v. U.S. W. Bus. Res., Inc., 153 F.3d 691, 695 (8th Cir. 1998)
(citing 29 U.S.C. § 256(b)). Notice should be consistent with the statute of limitations. This Court has limited notice
to only those employees who were employed by FLSA defendants within three years of the date the notice is mailed.
See Love, 2014 WL 11081012, at *1. So even if there was evidence of violations before December of 2017, the
maximum reach of the limitations period—assuming individuals opt-in immediately—would extend back only three
years from the date of the notice.
38 Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 174 (1989).
Circuit.39 In order to “avoid redundant notice and any conduct that could be interpreted as an
endorsement of the lawsuit[,]”40 Plaintiffs’ request to provide the Notice of Right to Join Lawsuit
(“Notice”), the Consent to Join form, and a follow-up reminder postcard via traditional U.S. Mail41
is conditionally granted, with the condition being that Plaintiffs make the following revisions:42
1. to the Notice of Right to Join Lawsuit (Doc. 13-1):

a. do not use bold font in the sentences beginning with “To:” and “Re:” on page 1;
b. change the statement in the footer on all pages to read: “IF YOU WANT TO JOIN
THIS LAWSUIT, CONSENT MUST BE RETURNED BY [insert date that is
60 days after the date that the notice revisions are approved by the Court]”;
c. change the first sentence in section (3) on page 2 to read as follows:
“DESCRIPTION OF THE LAWSUIT: Plaintiffs in this case allege that they are
current and former hourly-paid employees of Trinity Property Management, LLC,
Tri 5 Jacksonville, LLC, and/or Andmark Chapel Ridge of Conway, LLC
(“Defendants”).”;

d. delete the sentence in section (3) on page 2 stating: “The Court has not ruled on or
decided any of the issues, including the merits of the claims or defenses.”;
e. change section (4) on page 2 to read as follows: “COMPOSITION OF THE
CLASS: Plaintiffs seek to sue on behalf of themselves and on behalf of all hourly-

39 See Adkinson v. Tiger Eye Pizza, LLC, No. 4:19-CV-4007, 2019 WL 5213957, at *8 (W.D. Ark. Oct. 16, 2019);
Cooper v. Integrity Home Care, Inc., No. 4:16-CV-01293-DGK, 2017 WL 1628974, at *4 (W.D. Mo. May 1, 2017);
Wilson v. PNK (River City), LLC, No. 4:15CV00380 AGF, 2015 WL 5098716, at *3 (E.D. Mo. Aug. 31, 2015).
40 Latcham v. U.S. Pizza Co., Inc., No. 4:16-CV-00582 BSM, 2017 WL 5662350, at *3 (E.D. Ark. June 5, 2017).
41 Pls.’ Mot. for Conditional Certification (Doc. 13 at 2).
42 See Adkinson, 2019 WL 5213957, at *8 (ordering “additional language” be included in the notice to “ensure that
the notice ‘respect[s] judicial neutrality ... [and] avoid[s] even the appearance of judicial endorsement of the merits of
the action.’” (quoting Hoffmann-La Roche Inc., 493 U.S. at 174)).
paid office and maintenance personnel who allege that they worked for Defendants
between December of 2017 and September 4, 2019 at Westbridge apartments in
Little Rock, Legacy Pointe apartments in Little Rock, Spanish Rock apartments in
Little Rock, Terra Vista apartments in Little Rock, Arrowhead Estates apartments
in North Little Rock, Chapel Ridge apartments in Conway, The Village apartments

in Conway, and/or TRI 5 Jacksonville apartments in Jacksonville.”;
f. delete the paragraph in section (5) on page 2 stating: “Additional Consent to Join
forms and information regarding the specific filing requirements are available from
Plaintiffs’ attorney, Josh Sanford, Sanford Law Firm, PLLC, One Financial Center,
650 South Shackleford Road, Suite 411, Little Rock, Arkansas 72211, (501) 221-
0088, josh@sanfordlawfirm.com.”;
g. after section (5), insert a new section stating as follows: “JUDICIAL
DISCLAIMER: The Court does not encourage or discourage participation in this
case.”;43

h. delete the sentence in section (6) on page 2 stating: “You will not be required to
pay attorney’s fees directly.”;
i. delete the paragraph in section (6) on page 2 stating: “It is important to understand
that you may be entitled to recovery just because you worked for Defendants as an
hourly-paid employee at some time since September 4, 2016. The Court will make
a final decision about whether you are entitled to recover, and for what time period,

43 See, e.g., id. (“[O]ut of an abundance of caution, the Court agrees . . . that a judicial disclaimer would prevent any
potential confusion related to judicial endorsement. The Court . . . will require Plaintiffs to revise their notice form to
include the following language in numbered paragraph 2: ‘The Court does not encourage or discourage participation
in this case.’”).
if any, that you are entitled to recover. The Court has not made those decisions
yet.”;
j. change section (8) on page 3 to read as follows: “COUNSEL FOR PLAINTIFFS
AND COLLECTIVE: If you choose to join this suit, you may choose to be
represented either by the named Plaintiffs’ attorney, by your own attorney, or by

yourself. The attorney for the named Plaintiffs is Mr. Josh Sanford.” and delete the
following:
“Mr. Josh Sanford
Sanford Law Firm, PLLC
One Financial Center
650 South Shackleford Road, Suite 411
Little Rock, Arkansas 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: josh@sanfordlawfirm.com
“You also have a right to hire your own attorney and pursue your potential
claims individually. If you sign a Consent to Join you agree that the attorney
for the class will represent you in this case.”;
k. delete section (9) on page 3 in its entirety; and
l. delete section (11) on page 3 in its entirety.
2. to the Proposed Consent to Join Collective Action (Doc. 13-2):
a. change the consent statement to read as follows: “I worked for Defendants between
December 2017 and September 4, 2019. I was an hourly-paid office and/or
maintenance personnel employee. I worked at Westbridge apartments in Little
Rock, Legacy Pointe apartments in Little Rock, Spanish Rock apartments in Little
Rock, Terra Vista apartments in Little Rock, Arrowhead Estates apartments in
North Little Rock, Chapel Ridge apartments in Conway, The Village apartments in
Conway, and/or TRI 5 Jacksonville apartments in Jacksonville. I understand that
this lawsuit is brought under the Fair Labor Standards Act for unpaid wages and
other relief.”’;
b. delete the last sentence stating: “I consent to becoming a party-plaintiff in this
lawsuit, to be represented by Sanford Law Firm, PLLC, and to be bound by any
settlement of this action or adjudication by the Court.”;
c. after the consent statement and before the blank information fields, insert the
following checkbox options:
“Check one:
(| Iconsent to becoming a party-plaintiff in this lawsuit, and I agree to
be represented by Plaintiffs’ attorney, Mr. Josh Sanford, Sanford
Law Firm, PLLC, One Financial Center, 650 South Shackleford
Road, Suite 411, Little Rock, Arkansas 72211, Telephone: (501)
221-0088, Facsimile: (888) 787-2040, Email:
josh@sanfordlawfirm.com.
(| I consent to becoming a party-plaintiff in this lawsuit, but I do not
agree to have Plaintiffs attorney represent me and I intend to consult
with other counsel. My counsel will file a motion to represent me
and be added to the case by [insert date that is 60 days after the date
that the notice revisions are approved by the Court].

12

(| I consent to becoming a party-plaintiff in this lawsuit, and I will
represent myself.”
d. delete the paragraph with Mr. Sanford’s contact information in the lower left corner
of the page; and
e. change the statement in the footer to read: “IF YOU WANT TO JOIN THIS
LAWSUIT, CONSENT MUST BE RETURNED BY [insert date that is 60 days
after the date that the notice revisions are approved by the Court]”.
3. to the Proposed Text of Electronic Transmissions (Doc. 13-3):
a. delete this document in its entirety, as the motion to provide notice by email is
denied infra.
4. to the Proposed Electronic Consent to Jom (Doc. 13-4):
a. delete this document in its entirety, as the motion to provide notice by email is
denied infra.
5. to the Proposed Reminder Postcard (Doc. 13-5):
a. remove “SECOND” from the title;
b. change the first sentence from “On __, 2020, you were sent a Notice of
Right to Join Lawsuit informing you of a lawsuit in which you may be a member
as an Opt-In Plaintiff.” to “On __, 2020, you were sent a notice to inform
you of your right to join a lawsuit, in which you may become a member as an Opt-
In Plaintiff.”;

44 See Ratliff v. Pason Sys. USA Corp., 196 F.Supp.3d 699, 703 (S.D. Tex. 2016) (ordering the consent form to be
modified to insert checkboxes to “ensure that potential opt-in plaintiffs are properly apprised of their right to select
their own legal counsel”).

13

c. delete the sentence: “You are being sent this second Notice because you have not
yet joined the lawsuit.”; and
d. conclude the paragraph with the following sentence: “It is your choice whether to
join the lawsuit or not.”
Plaintiffs must file the revised Notice, Consent to Join form, and reminder postcard by

12pm on December 18, 2019. Defendants must file any objections regarding Plaintiffs’ revisions
by 5pm on December 20, 2019. The revised documents will be subject to the Court’s final review
and approval.
Plaintiffs’ request for an order directing Defendants to provide the names and last known
mailing addresses of potential opt-in plaintiffs within seven (7) days after the date of the entry of
this Order45 is granted. The Defendants must produce the names and last known mailing addresses
of hourly office personnel and hourly maintenance personnel who worked, between December of
2017 and September 4, 2019, at the eight (8) apartment complexes where Plaintiffs worked. The
Court directs Defendants to provide this information to Plaintiffs’ counsel via Microsoft Word or

Excel formatting.
“[E]xercising [its] discretionary authority to oversee the notice-giving process,”46 the Court
concludes that limiting communication to “[m]ailing notice will allow the greatest number of
potential class members to receive notice while minimizing redundancy.”47 This also avoids undue
invasions of privacy and undue pressure that can come with multiple messages through multiple
avenues. Accordingly, Plaintiffs’ request to provide the Notice and Consent to Join form via

45 Pls.’ Mot. for Conditional Certification (Doc. 13 at 4).
46 Hoffmann-La Roche Inc., 493 U.S. at 174.
47 Israsena v. Chalak M&M AR1 LLC, No. 4:15CV00038 JLH, 2015 WL 13648567, at *5 (E.D. Ark. Oct. 14, 2015).
email48 is denied,49 and its request to distribute a follow-up email50 is denied.51 Because notice by
telephone or email is not granted, Plaintiffs’ request for an order directing Defendants to provide
the last known telephone numbers and email addresses of potential opt-in plaintiffs52 is denied.
Plaintiffs’ request for an order directing Defendants to “post the Notice in a conspicuous location
in the same areas in which it posts government-required notices”53 is also denied.54 Finally,

Plaintiffs’ request for a period of ninety (90) days to distribute the Notice and file Consent to Join
forms with this Court55 is denied. If and when the Court approves the revised Notice and Consent
to Join form, the Court will grant a period of sixty (60) days from the date that the approval order
is entered to distribute the Notice and file Consent to Join forms. Sixty (60) days is plenty of time
to reach potential members of the collectives, and at the same time ensures that this case moves
forward expeditiously.56

48 Pls.’ Mot. for Conditional Certification (Doc. 13 at 2).
49 See Latcham, 2017 WL 5662350, at *3 (“Plaintiffs’ request to send notice by email . . . is denied without prejudice
to avoid redundant notice and any conduct that could be interpreted as an endorsement of the lawsuit.”); Olsen v. Clay
Cty., Ark., No. 3:18-CV-00129 BSM, 2018 WL 6004660, at *2 (E.D. Ark. Nov. 15, 2018) (denying plaintiffs’ request
to send notice by email); Teramura v. Walgreen Co., No. CV 12-5244, 2013 WL 12171862, at *4 (W.D. Ark. Mar. 7,
2013) (denying plaintiffs’ request to send notice by email); Vinsant v. MyExperian, Inc., No. 2:18-CV-02056, 2018
WL 3313023, at *6 (W.D. Ark. July 5, 2018) (denying plaintiffs’ request to disseminate notice by text message or
email in addition to traditional U.S. Mail as “needlessly repetitive and unnecessary”).
50 Pls.’ Mot. for Conditional Certification (Doc. 13 at 2).
51 See Latcham, 2017 WL 5662350, at *3 (“Plaintiffs’ request to send . . . follow-up or reminder notices by email . . .
is denied without prejudice to avoid redundant notice and any conduct that could be interpreted as an endorsement of
the lawsuit.”).
52 Pls.’ Mot. for Conditional Certification (Doc. 13 at 3).
53 Id.
54 See Bonds v. Langston Companies, Inc., No. 3:18-CV-00189 KGB, 2019 WL 4673569, at *4 (E.D. Ark. Sept. 24,
2019) (denying plaintiff’s request to require defendant to “post the notice in a conspicuous location in the same area
in which they post government-required notices”); Israsena, 2015 WL 13648567, at *5 (holding that “[t]he defendants
need not . . . post the notice” because “the more effective way to reach former employees . . . is by mailing the notice[,]”
and because denying the request to post the notice served to “minimize[e] redundancy”).
55 Pls.’ Mot. for Conditional Certification (Doc. 13 at 3).
56 See, e.g., Allbritton v. Wiggins, No. 4:13-CV-00158-SWW, 2014 WL 12768317, at *5 (E.D. Ark. Mar. 14, 2014)
(granting plaintiffs 60 days to mail notices and file opt-in consent forms with the Court).
IV. CONCLUSION
Plaintiffs’ Motion For Conditional Certification, For Disclosure of Contact Information,
and To Send Notices is granted in part and denied in part as set forth above.

IT IS SO ORDERED, this 13th day of December 2019.

Lee P. Rudofsky
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10004419. Public record. Not legal advice.