Weisgarber v. North American Dental Group, LLC

PEARSON, J.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DIXIE WEISGARBER, et al., )

) CASE NO. 4:18CV2860

Plaintiffs, )

)

v. ) JUDGE BENITA Y. PEARSON

)

NORTH AMERICAN DENTAL GROUP, )

LLC, et al., ) MEMORANDUM OF OPINION AND

) ORDER [Resolving ECF No. 57]

Defendants. )

Pending are Plaintiff Dixie Weisgarber and opt-in Plaintiffs’ motion for conditional class

certification (ECF No. 57) and motion for sanctions (ECF No. 74). The matters have been

briefed and the Court heard oral argument pertaining to both motions. ECF Nos. 57, 72, 74, 75,

76, and 77. For the reasons explained below, the motion for conditional certification is granted

and the Court reserves its ruling on the motion for sanctions.

I. Introduction

A. Plaintiffs

Plaintiff Dixie Weisgarber worked as an Office Manager (“OM”) for Defendants! in

Austintown, OH from September 2015 to April 2016. ECF No. 1 at PageID #: 2. Opt-in

Plaintiff Pamela Iman worked as an OM from July 2016 to November 2017 in Defendants’

' Although Plaintiff and all the other current opt-in Plaintiffs were directly

employed Defendant Professional Dental Alliance, LLC (“PDA”), see ECF No. 72 at

PagelID #: 1283-87, North American Dental Management, LLC (“NADM”) provided the

training and corporate policies to PDA’s employees and other non-party affiliate entities.

See ECF No 57-1 at PageID #: 400-02; 407-09 [Sealed].

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Cranberry, PA location. ECF No. 57-3 at PageID #: 992. Opt-in Plaintiff Donald Fotz worked

as an OM from approximately October 2016 to February 2018 at Defendants’ Willoughby Hills,

Ohio office. ECF No. 57-4 at PageID #: 1154.

Weisgarber filed this action on behalf of herself and all similarly situated Office

Managers (“OMs”) alleging violations of the Fair Labor Standards Act (“FLSA”). ECF No. 1.

Specifically, Weisgarber alleges that she was classified as an exempt employee, not entitled to

overtime payment for hours worked over 40 per week, even though she performed primarily non-

exempt duties. Id. at PageID #: 4-7. Plaintiffs propose a class consisting of all OMs nationwide

who worked for Defendants on or after December 12, 2015.

B. Defendants

Defendant North American Dental Group, LLC (“NADG”) is a holding company and has

no employees. ECF No. 57-1 at PageID #: 376 [Sealed]. NADG has an interest in entities such

as Professional Dental Alliance, LLC (“PDA”). Id. North American Dental Management, LLC

(“NADM”) provides support to different dental offices throughout the nation, including PDA.

Id. at PageID #: 377. Refresh Dental Management, LLC (“Refresh”) is the older version of

NADM and is no longer in operation.2 Id. PDA is the clinical side of the operations with offices

in Michigan, Indiana, Pennsylvania, and Ohio that provides the dentists, hygienists, and others on

the clinical side such as an OM. Id. at PageID #: 377, 382, 403. Besides PDA, NADM provides

2 Refresh became NADM in 2015. ECF No. 57-1 at PageID #: 377 [Sealed].

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support to other dental offices that hire OMs but are not named Defendants in this action. ECF

No. 72 at PageID #: 1284.

According to Defendants, PDA is the only named Defendant that employs Plaintiffs,

current opt-in plaintiffs, and declarants. ECF No. 72 at PageID #: 1283-87. Plaintiffs claim that

Defendants withheld this informing regarding the third parties until after discovery had

concluded and after Plaintiffs filed the pending motion for conditional class certification. See

ECF No. 74.

C. Procedural History

The parties engaged in discovery pertaining to the matter of conditional class

certification, which concluded in August 2019. Plaintiffs deposed Caroline Oldsey (“Oldsey’”),

the Vice President of Human Resources for NADM. See ECF No. 57-1 [Sealed]. Defendants

deposed Weisgarber and opt-in Plaintiff Pamela Iman. ECF No. 57-3; ECF No. 57-2.

After Plaintiffs filed the motion for conditional certification, the Court stayed the case

after the parties indicated that they planned to enter mediation discussions in good faith . ECF

No. 64. The stay was subsequently lifted when the parties informed the Court that mediation had

not resolved their dispute. ECF No. 71 at PageID #: 1261. The Court ordered the parties to

continue their briefing obligations regarding the motion for conditional certification. /d. at

PageID #: 1262.

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After Defendants filed their brief in opposition to Plaintiffs’ motion for class certification,

Plaintiffs filed the pending motion for sanctions.’ See ECF No. 74. The Court heard oral

argument on both motions. See Minutes of Proceedings.

II. Standard of Review

Under the FLSA, one or more employees may bring an action against an employer “for

and in behalf of himself and other employees similarly situated.” Albright v. Gen. Die Casters,

Inc., 2010 WL 6121689, at *1 (N.D. Ohio July 14, 2010) (citing 29 U.S.C. § 216(b)) (internal

quotations omitted) (Gwin, J.). “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 1s filed in the court in

which such action is brought.” Jd.

A plaintiff alleging a FLSA violation on behalf of other employees similarly situated

must meet two requirements: (1) the plaintiffs must actually be similarly situated; and (2) all

plaintiffs must signal in writing their affirmative consent to participate in the action. Comer y.

Wal-Mart Stores, Inc., 454 F.3d 544, 545-46 (6th Cir. 2006). Unlike a Federal Rules of Civil

Procedure Rule 23 representative action, in which a putative plaintiff has the opportunity to

opt-out of the class, plaintiffs brought into a collective action under the FLSA must affirmatively

opt-in to the class. Jd.

Courts generally take a two-stage approach to collective actions. /d. at 546. According to

the Sixth Circuit, “[t]he first takes place at the beginning of discovery[ | [and] [t]he second

> The Court saves a more complete discussion of the circumstances underlying the

motion for sanctions for its later ruling on that matter.

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occurs after all the opt-in forms have been received and discovery has concluded.” /d. (citing

Goldman y. RadioShack Corp., 2003 WL 21250571, at *6 (E.D. Pa. Apr. 17, 2003)). When a

plaintiff is seeking conditional certification at the beginning of discovery, which is also known as

the notice stage, a plaintiff must make a “modest factual showing” and must show “only that his

position is similar, not identical, to the positions held by the putative class members.” Comer,

454 F.3d at 546-47. The modest factual showing must also be sufficient to “demonstrate that

they and potential plaintiffs together were victims of a common policy or plan that violated the

law.” Id. (quoting Roebuck v. Hudson Valley Farms, Inc., 239 F. Supp. 2d 234, 238 (N.D.N.Y

2002).

When, as is the case here, parties have already conducted discovery on the issue of

conditional certification, some courts apply a “modest plus” standard, requiring a showing

beyond the lenient step-one standard, but not as stringent as the showing required at step two.

Creely v. HCR ManorCare Inc., 789 F. Supp. 2d 819, 827 (N.D. Ohio 2011) (Zouhary, J.); see,

e.g., Cox v. Entertainment U.S.A. of Cleveland, Inc., 2014 WL 4302535, at *1 (N.D. Ohio Aug.

29, 2014) (Nugent, J.) (parties conducted three months of discovery prior

to motion for conditional certification); Jungkunz v. Schaeffer’s Inv. Research, Inc., 2014 WL

1302553, at *7 (S.D. Ohio Mar. 31, 2014) (parties had conducted discovery, and Plaintiff knew

the identity of all or nearly all of the potential collective members); Hurt v. Commerce Energy,

Inc., 2013 WL 4427255, at *7 (N.D. Ohio Aug. 15, 2013) (Gwin, J.) (parties conducted some

discovery on the certification issue). Under step one, the court’s analysis “is confined to

evaluating whether the proposed collective is ‘similarly situated,’ and does not touch upon the

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merits of the plaintiffs’ claims.” Jungkunz, 2014 WL 1302553 at *7 (citing Creely, 789 F. Supp.

2d at 823 24). One key difference under this “modest plus” standard is that the court considers

parties’ evidence, as well as several factors typically reserved for the stage two analysis, such as

“(1) the disparate factual and employment settings of the individual opt-in plaintiffs; (2) the

various defenses available to defendants with respect to individual plaintiffs; and (3) fairness and

procedural considerations.” Jd. (citing Creely, 789 F. Supp. 2d at 823, 826). Ultimately, the

court determines whether the plaintiff has “made sufficient showing beyond their original

allegations that would tend to make it more likely that a class of similarly situated employees

exists.” Creely, 789 F. Supp. 2d at 827. “Plaintiffs need not have moved the ball far down the

field, but they need to have shown some progress as a result of the discovery as measured against

the original allegations and defenses.” /d. Conditional certification under this review “requires

an elevated factual showing, something beyond what is alleged in the pleadings and otherwise

advancing the ball down the field beyond the pleadings.” Kampfer v. Fifth Third Bank, 2016 WL

1110257, at *2 (N.D. Ohio Mar. 22, 2016) (Helmick, J.). Nevertheless, even under this

heightened standard, “a district court does not generally consider the merits of the claims, resolve

factual disputes, or evaluate credibility.” Boyd v. Schwebel Baking Co., 2016 WL 3555351, at *3

(N.D. Ohio June 30, 2016) (Lioi, J.) (citation omitted). The Court considers the merits of the

FLSA claims during the stricter second phase review. Matusky v. Avalon Holdings Corp., 2018

WL 4680478, at *3 (N.D. Ohio Sept. 28, 2018) (Pearson, J.).

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III. Discussion

A. Similarly Situated Analysis

In considering a motion for conditional certification, even under a modest “plus”

standard, “the court’s analysis is confined to evaluating whether the proposed class is ‘similarly

situated’ and does not touch upon the merits of plaintiff's claims.” Boyd, 2016 WL 3555351, at

*4 (Lioi, J.) (quoting Creely, 789 F. Supp.2d at 826). To determine whether plaintiffs are

similarly situated, the Court considers a number of factors, including the “factual and

employment settings of the individual[ ] plaintiffs, the different defenses to which the plaintiffs

may be subject on an individual basis, [and] the degree of fairness and procedural impact of

certifying the action as a collective action.” O'Brien vy. Ed Donnelly Enters., Inc., 575 F.3d 567,

585 (6th Cir. 2009) (citation omitted), abrogated on other grounds by Campbell Ewald Co. v.

Gomez, 136 S.Ct. 663, 669 (2016).

Plaintiff seeks to certify the following class: All OMs nationwide who worked for

Defendants on or after December 12, 2015.4

Named Plaintiffs have met the “modest ‘plus’ factual showing” required for conditional

certification of the collective action. Plaintiffs allege that they performed non-exempt work and

regularly worked over 40 hours per week. All of the OMs hired by Defendants have the same job

* Plaintiffs seek to measure the statute of limitations for notice from the filing of

the Complaint rather than the issuance of the Order granting conditional certification.

The Court addresses this matter in a later portion of this Order.

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description. Cf Simpson v. Caresouth Hha Holdings, LLC, 2016 WL 3349637, at * 4 (M.D.

Tenn. June 16, 2016) (finding that companywide certification was not appropriate because “the

plaintiffs have presented no evidence beyond this general language demonstrating that the job

description actually applied to RNs in other CareSouth locations, let alone that it was

accompanied by an FLSA-exempt classification.”). The overwhelming majority of Defendants’

210 locations has an OM. ECF No. 57-1 at PageID #: 373, 381 [Sealed]. Moreover, Oldsey

indicated in her deposition that there has never been a time when OMs were not exempt and are

classified as such regardless of the region or market they work in. See Lewis v. Huntington □□□□□

Bank, 789 F. Supp. 2d 863, 868 (S.D. Ohio 2011) (“This evidence shows that the putative

Nationwide Class all perform the same job functions and are all compensated” in the same

manner). All OMs were treated similarly and had the same job expectations, regardless of

location, office size, region, or market. See Kampfer, 2016 WL 1110257, at *5 (honing in ona

corporate representative’s deposition where she stated the primary responsibilities for the

employees subject to the class were all the same). Furthermore, there have been other

individuals identifying as members of the proposed class, who have filed Notices of Consent

with the Court intending to “opt in” pursuant to 29 U.S.C. § 216(b). See ECF No. 73-1, ECF No.

52-1; ECF No. 6-2; ECF No. 6-1; see also Perez v_ A+ Building Maintenance and Home Repair,

LLC, 2018 WL 2002420, at *5 (N.D. Ohio Apr. 30, 2018) (Carr, Sr., J.) (finding that plaintiffs

had demonstrated they were similarly situated by relying on the experience of different

employees). All of the declarants indicate that: (1) they were classified as exempt and regularly

worked more than 40 hours per week; (2) performed the same tasks performed by non-exempt

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employees; and (3) that they had no control over the hiring process, managing the office, or input

into corporate policies. ECF No. 57-12 at PageID #: 1213; ECF No. 57-11 at PageID #: 1206;

ECE No. 57-10 at PageID #: 1199; ECF No. 57-9 at PageID #: 1192; ECF No 57-8 at PagelID #:

1185-86; ECF No. 57-7 at PageID #: 1178-79; ECF No. 57-6 at PageID #: 1171-72; ECF No 57-

4 at PageID #: 1156-57.

Defendants seek to defeat Plaintiff's motion by attempting to distinguish Weisgarber and

Iman from other OMs. For example, Defendants state that other offices have both a front-desk

coordinator and an OM, whereas neither offices at which Weisgarber and Iman worked had a

front-desk coordinator, and that both held themselves out as performing managerial duties when

applying for jobs after working for PDA. See ECF No. 72 at PageID #: 1280-81. Weighing the

merits of the factual allegations, however, is not appropriate at this juncture. See Hernandez v.

Telelink, LLC, 2019 WL 6270920, at *3 (N.D. Ohio Nov. 25, 2019) (Pearson, J.) (“At the notice

stage, district courts within the Sixth Circuit typically do not consider the merits of the □□□□□□□□□□□

claims, resolve factual disputes, make credibility determinations, or decide substantive □□□□□□□□

(citations omitted).

Defendants also ask the Court to reject Weisgarber’s and Iman’s description of their role

as an OM and to instead give more weight to Defendants’ declarants. ECF No. 72 at □□□□□□ #:

1280-81. Despite these differences, Defendants’ declarants’ claims are insufficient to defeat

conditional certification at this stage. See Betts v. Central Ohio Gaming Ventures, LLC, 2018

WL 2316641, at * 6 (S.D. Ohio Jan. 5, 2018); Myers v. Marietta Mem. Hosp., 201 F. Supp. 3d

884, 891-92 (S.D. Ohio 2016) (“[T]he Court agrees with the reasoning of other district courts

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that have declined to rely on these types of declarations collected by employers at the

conditional-certification stage.”’) (citations omitted); Creely, 789 F. Supp. 2d at 840.

Defendants aver that Plaintiffs have not demonstrated an unlawful policy. This is of no

moment, given that the Sixth Circuit has held that “a “unified policy’ of violations is not

required” for conditional certification. O’Brien, 575 F.3d at 584. Even so, Plaintiffs have

sufficiently alleged, at this stage, that they perform primarily clerical work despite their job

description and title as OM. Kis v. Covelli Enters., Inc., 2018 WL 2227782, at *1 (N.D. Ohio

May 16, 2018) (Gwin, J.) (“And they claim that they were not properly compensated for their

overtime hours and set forth allegations to support the claim that they are not exempt from the

FLSA’s overtime requirements.”) Waggoner v. U.S. Bancorp, 110 F. Supp. 3d_759, 770 (N.D.

Ohio 2015) (Lioi, J.) (‘Through declarations of plaintiffs and potential opt-in former co-

managers, plaintiffs have preliminarily demonstrated that in-store co-managers performed similar

duties that often were devoid of management responsibility, regularly worked in excess of forty

hours of week, and were similarly compensated by a pay system that did not include overtime.”)’;

Jackson v. Papa John’s USA, Inc., 2009 WL 385580, at *5 (N.D. Ohio Feb. 13, 2009) (Gwin, J.)

(noting that although treating all Assistant Managers as exempt from FLSA is not illegal, the

plaintiff “additionally alleges that Assistant Managers do not perform sufficient managerial

> The Court is cognizant that the Waggoner court noted that “[a] different result

might have been reached head the Court employed the more stringer ‘modest plus’

standard for conditional certification.” Waggoner, 110 F. Supp. 3d at 771. For the

reasons articulated earlier, the Court finds that the discovery the parties produced

supports a finding of conditional certification.

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functions to justify exempt treatment.”) Plaintiffs also need not prove whether the policy is

lawful at this stage. See Luster v. AWP, Inc., 2017 WL 3140697, at * 2 (N.D. Ohio July 25,

2017) (Boyko, J.) (“It is sufficient for this stage that Plaintiffs have established a policy or

practice and have advanced arguments that the policy violates the FLSA.”); Hamm v. Southern

Ohio Med. Ctr., 275 F. Supp. 3d 863, 876 (S.D. Ohio 2017) (finding the determination of an

unlawful policy “relates to the merits of Plaintiff’s claims and is not relevant at this stage of the

proceedings.”) (citations omitted).

Accordingly, Plaintiffs have sufficiently demonstrated that OMs employed by Defendants

are similarly situated.

B. Notice

Defendants insist three limitations must be imposed on the class certification: (1) it must

be limited to two years which should be measured from the date of this Order; and (2) should

only include OMs employed in Ohio, Michigan, Pennsylvania, and Indiana, the only states in

which Weisgarber and the current opt-in plaintiffs were hired; and (3) should not include

potential opt-in OMs with Arbitration Agreements. The Court addresses each contention below

respectively.

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1. Statute of Limitations®

The parties suggest different times from which the statute of limitations should be

measured, namely either the filing of the Complaint or from the issuance of this Order granting

conditional certification. One court in the Northern District of Ohio has held that the statute of

limitations should run from the issuance of the Order grating conditional certification. Arends v.

Family Sols. of Ohio, 2019 WL 4417674, at *11 (N.D. Ohio Sept. 16, 2019) (Barker, J.)

(citations omitted). Another judicial officer in the Northern District of Ohio has measured the

statute of limitations from the filing of the motion for conditional certification. See Kampfer,

2016 WL 1110257, at *6 (Helmick, J.) (permitting the statute of limitations period to be

measured against the date the motion for conditional certification was filed). Based on the record

before the undersigned, the opt-in notice period should be measured from the filing of the motion

for conditional certification. Specifically, the class shall comprise all OMs hired by Defendants,

including all OMs hired by all Defendants and all of Defendants’ affiliated entities’, from August

16, 2016 to August 16, 2019. See ECF No. 57 (motion for class certification filed on August 16,

2019). This approach is more prudent than counting from the filing of this Order because it

° Defendants’ argument that the statute-of-limitations should be two years as

opposed to three years requires a merit-based determination that should be made in the

next stage of the certification process. See Kinder v. MAC Manufacturing Inc., 318 F.

Supp. 3d 1041, 1048 (N.D. Ohio 2018) (Pearson, J.) (“Because Defendants’ statute of

limitations argument requires an evaluation on the merits of Plaintiffs claim, it is

inappropriate for resolution at this early stage of litigation.”) Accordingly, the Court

rejects this argument without prejudice to Defendants’ ability to raise it at a later stage.

’ The Court details this further in a later section of this Order.

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considers the parties’ nearly three-month effort to mediate, the parties’ Tolling Agreement, and

the subsequent oral argument that was held after the motion was filed. See ECF No. 65

(discussing the parties’ Tolling Agreement); ECF No. 61 (parties’ joint motion to stay the case to

enter into mediation).

Accordingly, the class shall include all OMs who have worked for Defendants as of

three years from the filing of the motion for conditional certification.

2. Geographic Scope of Notice

Defendants also seek to limit the geographic scope of the collective action notice to OMs

employed by PDA in three to four states. ECF No. 72 at PageID #: 1283-85. Plaintiffs retort that

Defendants were ordered to produce discovery identifying potential opt-in plaintiffs in all states,

not just states for OMs employed by PDA. ECF No. 75 at PageID #: 1481-83.

Defendants critical to resolving this dispute are NADM and PDA. PDA is the only

named Defendant that directly employs OMs. ECF No. 72 at PageID #: 1284. NADM provides

support to other dental offices around the nation other than PDA which hire OMs. During

discovery, Plaintiffs requested information about “all OMs employed by all Defendants.” See

ECF No. 74 at PageID #: 1454. Defendants only provided information about OMs hired by

PDA, the only named Defendant that hires OM, but did not elaborate that NADM cooperates

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with other third parties that also hire OMs.* See ECF No. 74; ECF No. 72 at PageID #: 1284-85.

According to Defendants, PDA is the only named Defendant that employs Plaintiffs. ECF No.

72 at PageID #: 1284-85. Plaintiffs claim that Defendants withheld this information until after

discovery had concluded and after Plaintiffs filed the pending motion for conditional class

certification. See ECF No. 74.

Plaintiffs allege that all Defendants jointly employed OMs such as Weisgarber and other

potential opt-in Plaintiffs. ECF No. | at PageID #: 3. This allegation necessarily includes OMs

who work for third parties associated with NADM. Defendants contend that NADM is not a

joint employer of OMs who are directly employed by those third parties. This claim is more

appropriately resolved in the next stage of litigation. Thomas v. Papa John’s Int'l, Inc., 2019

WL 4743637, at * 4 (S.D. Ohio Sept. 29, 2019) (“[S]everal courts have found it proper to

conditionally certify an FLSA class that consists of employees of related employers, and reserved

consideration of whether the separate employers are joint employers for a final, stage two

determination.”) (citation omitted); Perry, 2018 WL 3218413, at *3 (“The question of whether

corporate Defendants in fact qualify as joint employers under the FLSA is not before the

Court.”). Moreover, at this stage, there is ample evidence to suggest that OMs are treated the

same nationwide, not merely in just the states in which PDA employs OMs.

* Although these facts are more pertinent to the pending motion for sanctions

(ECF No. 74), they are also relevant for the resolution of the scope of the notice. As

explained above, the Court reserves its ruling on the motion for sanctions for a later date.

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Plaintiffs have demonstrated that Defendant NADM operates in nine states with at least

210 locations. ECF No. 57 at PageID #: 348; ECF No. 57-1 at PageID #: 373 [Sealed].

Moreover, all OMs nationwide receive the same training and are subject to the same on-boarding

process that are directed from NADM’s corporate office, not PDA. ECF No. 57-1 at PageID #:

398, 400-02, 407-08, 413 [Sealed]; see also Jackson, 2009 WL 3885580, at *5 (“The training

manuals, however, that Plaintiff Jackson submitted do support his claim that the Defendants’s

FLSA violation is nationwide.”) NADM also created and provided the OM job description,

which is uniform across all offices, to its partners and other Defendants. ECF No. 57-1 at

PageID #: 376, 391-92, 395-96 [Sealed]. All OMs are evaluated under the same rubric as well.

Id. at PageID #: 412-13. Should it “become[] apparent at a later stage that [Defendants] . . .

[were] not the class members’ employer, [they] may move for decertification.” Kis, 2018 WL

2227782, at 2.

Plaintiffs have provided enough evidence to suggest that there should be a nationwide

class. Plaintiffs’ nationwide conditional certification shall also be comprised of OMs who work

for third parties associated with all Defendants.

3. Opt-In Plaintiffs Who Agreed to Arbitration

Defendants also seek the Court’s leave to brief the issue of OMs who may opt-in to the

collective action that have signed arbitration agreements. Defendants further acknowledge that

neither Plaintiff nor the opt-in have signed arbitration agreements. Defendants’ request is

premature. See Clark v. Pizza Baker, Inc., 2019 WL 4601930, at * 7 (S.D. Ohio Sept. 23, 2019)

(“Thus, [Defendants] cannot presume to know that plaintiffs with arbitration agreements will

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ultimately opt in to the suit.”); Colley v. Scherzinger Corp., 176 F. Supp. 3d 730, 735 (S.D. Ohio

2016) (finding that the Court should not address the merits of whether the employees are bound

by arbitration agreements at this stage). “[C]ourts have consistently held that the existence of

arbitration agreements is ‘irrelevant’ to collective action approval because it raises a merits-based

determination.’” Romero v. La Revise Assocs. L.L.C., 968 F. Supp. 2d 639, 647 (S.D.N.Y. 2013)

(citations omitted). The proper route “is to decide whether to certify the class without

considering the possibility of arbitration and then decide who must arbitrate. If it turns out that

some potential class members must arbitrate, the Court can always decertify, subclassify, or

otherwise alter the class later.” Holmes v. Kelly Servs. USA, LLC, 2017 WL 1077987, at *4

(E.D. Mich. Mar. 22, 2017).

In summary, Plaintiffs’ motion, deposition transcripts, and attached declarations, establish

that Plaintiffs have met their burden in making the requisite factual showing for conditional

certification of a nationwide collective action under 29 U.S.C. § 216(b).

C. Motion for Sanctions

The Court heard oral argument on Plaintiff’s motion for sanctions (ECF No. 74). At this

time, the Court reserves its ruling on the pending motion for sanctions.

IV. Conclusion

For the reasons explained above, the Court grants Plaintiffs’ motion for conditional class

certification and orders the following.

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The class shall consist of all OMs who have worked for Defendants, including the third

parties that also hired OMs, from the three years prior to the filing of the motion for conditional

certification.

The Court holds resolution on the pending motion for sanctions in abeyance at this time.

The Court directs the parties to meet and confer in good faith for the purpose of

negotiating the language of the notice that is to be issued to the proposed collective and the

procedure for issuing the notice. If they are able to agree upon the form of the notice, within 14

days of the date of this Memorandum of Opinion and Order, the parties shall submit a joint

proposed notice for the Court’s final approval. If the parties are unable to agree, Plaintiffs shall

submit a notice and any objections remaining after conference shall be indicated by Defendants

in a redlined version showing its proposed alterations. Thereafter, the Court will resolve the

conflict. The Court further directs that, within 30 days of the approval of the form of the notice

by the Court, said notice shall be sent to all potential collective members.

IT IS SO ORDERED.

March 20, 2020 /s/ Benita Y. Pearson

Date Benita Y. Pearson

United States District Judge

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