# Bustillos v. Board of County Commissioners

> District Court, D. New Mexico · September 16, 2016 · 310 F.R.D. 631

URL: https://www.frixlaw.com/law-library/cases/8774319

## Case

- **Full name:** Madonna BUSTILLOS, Francisco Contreras, Concepcion T. Hernandez, Martha S. Jimenez and Amanda Vogelsang-Wolf, on behalf of themselves and all others similarly situated v. BOARD OF COUNTY COMMISSIONERS OF HIDALGO COUNTY
- **Court:** District Court, D. New Mexico
- **Decided:** September 16, 2016
- **Citations:** 310 F.R.D. 631; 2015 WL 6393567
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Jamesbrowning
- **Judges:** Browning, James
- **Cited by:** 28 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/8774319

## How later opinions describe it (automated extraction)

- observing that federal courts of appeals "that have considered the meaning of 'similarly situated' have consistently defined the phrase to require a minimal showing"
- finding correctional officers were similarly situated because they shared the same employer, had similar job duties, and were allegedly injured by the same FLSA violation
- noting "that the New Mexico Legislature did not intend to provide a private cause of action to recover wages in § 50-4-2(b)"

## Opinion text

MEMORANDUM OPINION AND ORDER
JAMES 0. BROWNING, District Judge.
THIS MLATTER comes before the Court on the Plaintiffs’ Motion for Conditional Certification of a Collective Action Under 29 U.S.C. § 216 (b) and Certification of a Class Action Under Fed.R.Civ.P. 23(b)(3) and Memorandum in Support, filed September 30, 2014 (Doc. 33) (“Motion”). The Court held a hearing on November 21, 2014. The primary issues are: (i) whether to conditionally certify this case as a collective action under 29 U.S.C. § 216 (b); and (ii) whether to certify this ease as a class action under rule 23(b)(3) of the Federal Rules of Civil Procedure. As to the first issue, because the Plaintiffs have pled facts that suggest that the proposed class is similarly situated with regard to the alleged violations of the federal Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219 (“FLSA”), the Court will conditionally certify the ease as a collective action. As to the second issue, because the Plaintiffs have not yet put forth facts showing the proposed class’ compliance with rules 23(a) and 23(b)(3), the Court will deny the request for class certification without prejudice to allow them to renew it later, when and if they can support the motion with evidence. The Court thus grants the Motion in part and denies it in part.
FACTUAL BACKGROUND
The Plaintiffs and proposed class members are correctional officers, sergeants, and lieutenants at the Hidalgo County Detention Center, and emergency dispatchers at the New Mexico Hidalgo County Central Emergency Dispatch Center. See Complaint for Violations of the Fair Labor Standards Act, State Wage and Hour Laws, Breach of Contract and Unjust Enrichment Collective Action Complaint ( 29 U.S.C. § 216 (b)) ¶ 1, at 1-2, filed October 8, 2013 (Doc. ^“Complaint”); id. ¶¶ 8-10 , at 2-3. The gist of the Plaintiffs’ Complaint is that all employees work, and are paid on the basis of, preassigned shifts, but (i) they are not allowed to leave until another employee relieves them; and (ii) they are required to do various clerical tasks after the end of their shift, such as “reconciling] call logs.” Complaint ¶ 10, at 3. The Plaintiffs “are scheduled and paid only for the stated length of their shift,” and, despite that they “are consistently required to work longer than the time allotted for their scheduled shift,” they “are not compensated for this extra work time.” Complaint ¶ 12, at 3. This practice resulted not only in the Plaintiffs losing regular — i.e., non-overtime — pay for the work done after the end of their shifts, but, in many cases, resulted in Plaintiffs and proposed class members, whom should be paid overtime wages — i.e., one and one-half times the regular wage — losing out on that pay, as well. See Complaint ¶ 14, at 3. Last, the Plaintiffs are also often required to be “on-call” for *638 certain periods of time when they are not physically at work, and they receive no compensation for this time. Complaint ¶ 15, at 4.
PROCEDURAL BACKGROUND
The Plaintiffs filed suit in federal court on October 8, 2013. See Complaint at 1. They allege four causes of action: (i) violation of the New Mexico state wage and hour laws, N.M. Stat. Ann. § 50-4-1 to -30 (“NMSA”), Complaint ¶¶ 20-22, at 4; (ii) violations of the FLSA, see Complaint ¶¶ 23-27, at 4-5; (iii) breach of their employment contracts, see Complaint ¶¶ 28-31, at 5; and (iv) unjust enrichment, in the form of free hours worked, see Complaint ¶¶ 32-36, at 56. The Plaintiffs demand a jury trial, see Complaint ¶ 37, at 6, and ask that the ease proceed as a “collective action” under 29 U.S.C. § 216 (b) and that they receive compensatory and liquidated damages, including pre- and post-judgment interest, and costs and attorneys’ fees, see Complaint ¶¶ a-f, at 6.
Hidalgo County answered the Complaint within one month. See Defendant’s Answer to Plaintiffs Complaint for Violations of the Fair Labor Standards Act, Stage Wage and Hour Laws, Breach of Contract and Unjust Enrichment Collective Action Complaint ( 29 U.S.C. § 216 (b)), filed November 7, 2013 (Doc. 5)(“Answer”). It admits that all of the Plaintiffs and the proposed class members— both the detention-center employees and the emergency dispatchers — are not allowed to leave their posts until relieved by the incoming employee for the next shift, see Answer ¶¶ 9, 11, at 3, but it denies that the dispatchers are required to reconcile call logs after the end of their shift, see Answer ¶ 10, at 3. Hidalgo County contends that, in fact, the dispatchers “are required to reconcile call logs at the end of each call.” Answer ¶ 10, at 3. It “admits Plaintiffs are scheduled and paid for the length of their shifts for time actually worked by each employee,” but it “denies the ... allegations” that the Plaintiffs are required to work beyond their scheduled shift. Answer ¶ 12, at 3. It also categorically denies the Plaintiffs’ claims of going unpaid for on-call time, asserting that “only detectives and corporals are on call.” Answer ¶ 15, at 4.
The Plaintiffs filed the Motion on September 30, 2014. See Motion at 1. They request that the Court “conditionally” certify Count II, the FLSA claim, as a collective action under 29 U.S.C. § 216 (b), and that the Court certify the other three claims as a class action under rule 23(b)(3). Motion at 7. See Motion at 3. They define their proposed class action and their proposed collective action in identical terms. See Motion at 3. They define the class by way of two subclasses — the union of which the Court presumes to be the class definition:
[SUBjCLASS 1: All current and former employees of Hidalgo County employed at the Hidalgo County Detention Center within the past three years as a Detention Officer who have, at any time in the relevant period, worked at a post that required pre- or post-shift briefing, and work related to on-coming or out-going employees in that post, or who worked “on call” shifts. [SUBjCLASS 2: All current and former employees of Hidalgo County employed at the Hidalgo County Dispatch Center within the past three years as a Dispatch Operator who have, at any time in the relevant period, worked at a post that required pre- or post-shift briefing, and work related to on-coming or out-going employees in that post, or who worked “on call” shifts.
Motion at 3-4.
The Plaintiffs describe significant facts in their Motion that they did not plead in their Complaint:
Plaintiffs represent two distinct subclasses of employees. The first set of Plaintiffs, and other similarly situated employees, fill certain “posts” at the Detention Center and rotate on one of three shifts — day, night, and graveyard. (At previous times, Detention Officers have worked on 12-hour shifts.) Defendant has had a policy and practice of requiring these employees to arrive at least five minutes prior to their scheduled shift to perform work and receive a pre-shift briefing. Employees were not compensated for this time, much of which was performed at overtime rates. Through this practice, for virtually every shift on every “post,” employees’ work schedules overlap for up to *639 five to fifteen minutes, yet Defendant compensates only one of the two employees for this time. In addition, Detention Center employees at times are expected to be “on call,” requiring them to remain close to the facility and available by phone at all times. Employees were not compensated for this time, even when they responded to Detention Center inquiries and emergencies by phone, helping resolve work issues that arise.
A similar policy is in place in the Dispatch Center, where written policies require all operators to arrive at least five minutes prior to their scheduled shift to perform work and receive a pre-shift briefing. Dispatch Operators rotate on one of three shifts — day, night, and graveyard. (At previous times, Dispatch Operators have worked on 12-hour shifts.) These Dispatch Center employees also were not compensated for this time, much of which was performed at overtime rates. Dispatch employees also are expected to be “on call” at times, requiring them to remain close to the facility and available by phone at all times. Employees were not compensated for this time, even when they responded to Dispatch Center inquiries and emergencies by phone, helping resolve work issues that arise.
Motion at 2-3.
The Plaintiffs state that, “[wjithin the subclasses, Detention Officers perform largely the same duties, with Corporals considered lead employees who have administrative and oversight duties in addition to working the same shifts and performing the same duties as regular officers.” Motion at 5. They assert that all “Detention Officers are required to be at their post assigned at the beginning of their shift,” but that:
[BJefore arriving at that post, Detention Officers must (1) read post orders and sign a receipt slip indicating those post orders have been read; (2) inspect all equipment and report any discrepancies; and (3) attend a briefing in the control room that includes all out-going and in-coming Detention Officers in an overlap of their shifts.
Motion at 6. The Plaintiffs contend that this pre-shift briefing typically takes between five and fifteen minutes. See Motion at 6.
As for the dispatchers, the Plaintiffs assert that their “Policies and Procedure manual explicitly requires” that they report five minutes before each shift. Motion at 6. The Plaintiffs state that:
Before “logging on” to the system to take over the radio operations from the outgoing Dispatch Operator — thus officially relieving that out-going employee from duty,” the dispatchers must go through the following pre-shift routine: (1) retrieve a headset and notebook from a locker room; (2) sign in to radio logs; (3) log into the 911 and NCIC computer systems; (4) review the briefing board, pass-down logs and desk logs; (5) check incoming teletypes and NCIC files; and (6) conduct a verbal briefing with the out-going Dispatch employee.
Motion at 6-7. They also assert that, after the end of their shift, the dispatchers must file their logs, log off their computer systems, clean their work stations, and conduct a briefing with the incoming dispatcher. See Motion at 7.
In the Motion’s legal section, the Plaintiffs first argue for conditional certification of the collective action. See Motion at 7-14. They argue that, under the FLSA, conditional certification — which they contend to be the point at which notice giving an opportunity to opt-in is sent to prospective action members — is appropriate whenever the proposed class members are “ ‘similarly situated.’ ” Motion at 9 (quoting 29 U.S.C. § 216 (b)). They contend that this standard is less stringent than those for class certification under rule 23, and “more elastic and less stringent” than the requirements for joinder under rule 20 and severance under rule 42. Motion at 9. They contend that collective-action certification is done in stages: first, the Court opens a notice stage, in which it allows court-facilitated notice to employees other than the named plaintiffs; second, the Court determines whether the action may proceed to trial as a collective action; and third, the Court tries the action. See Motion at 9-10. The Plaintiffs in this motion seek only to *640 enter the first stage, and they contend that their burden to secure notice is minimal: they must show only that all proposed collective-action members were subject to a single decision, policy, or plan. See Motion at 10.
The Plaintiffs state that because discovery is conducted only after the Court conditionally certifies the collective action, their burden is low. See Motion at 10. They argue that a “ ‘colorable basis’ for the claim of similarity” suffices. Motion at 10 (quoting Schwed v. Gen. Elec. Co., 159 F.R.D. 373, 375-76 (N.D.N.Y.1995) (Hurd, J.)). They contend that they can meet their burden merely by showing that they “have the same employer, are subject to the same employer practices, and — particularly relevant here — suffer the same method of calculation of wages owed.” Motion at 10. Last, they contend that the primary purpose of involving the Court in this stage of the proceedings is to allow the Court to oversee the notice process and ensure that the Plaintiffs’ counsel’s communications are ethical and accurate. See Motion at 11-13. They attach a proposed notice, see Notice of Your Right to Join Lawsuit Against Hidalgo County, filed September 30, 2014 (Doc. 33-9)(“Proposed Notice”), which they say is modeled off the notice in Reab v. Elec. Arts, Inc., 214 F.R.D. 623, 627 (D.Colo.2002) (Babcock, J.), see Motion at 13.
The Plaintiffs also ask the Court to certify the case as a class action. See Motion at 1423. Although the Plaintiffs cite mostly federal case law, they primarily refer to the rule in question as “Rule 1-023,” which is the New Mexico Rules of Civil Procedure’s class-action rule. 1 Motion at 14-23. They assert that preliminary discovery indicates that there are likely to be about fifty class members, which they argue is sufficient to satisfy numerosity. See Motion at 15. They assert that the following three common issues satisfy the commonality and typicality requirements: (i) “whether Defendant has required the class members to perform pre-shift work, post-shift work, and on-call work without compensation, a question that will be answered by reference to Post Orders, Standard Operating Procedures, and Policies equally applicable to all members of the class”; (ii) whether such a practice, if established, unjustly enriches the employer by the value of that labor (calculated based on their hourly wage)”; and (iii) “whether Defendant thus breached the identical implied employment contracts with all class members.” Motion at 17. As to adequacy, the Plaintiffs contend both that there is no conflict among the class and that their counsel is “an experienced attorney who has litigated numerous class-action suits in state and federal court.” Motion at 18.
Hidalgo County responded to the Motion two weeks later. See Defendant’s Response to Plaintiffs’ Motion for Conditional Certification of the Collective Action Under 29 U.S.C. § 216 (b) and Certification of a Class Action Under Fed.R.Civ.P. 23(b)(3), filed October 14, 2014 (Doe. 35)(“Response”). It first argues that, although “[t]he standard for certification at the initial notice stage is generally a lenient one,” because a considerable amount of discovery has already been conducted in this case, the Court should “rigorous[ly] review and consider all the evidence gathered to date by the parties.” Response at 2-3. It cites several eases that it asserts have taken this approach, but acknowledges that “federal district courts in the Tenth Circuit have generally declined to bypass the more lenient stage.” Response at 3. Hidalgo County argues that despite other courts’ refusal to apply a higher standard, the case law does not foreclose the standard it advances, and the standard would further judicial economy’s interests, because it would cut off the possibility of sending out notices only to refuse certification at a later stage. See Response at 4.
Hidalgo County also argues that, even if the Court applies the more lenient standard that the Plaintiffs recommend, certification is still improper. See Response at 4-11. It asserts that Plaintiff Vogelsang-Wolf worked as a detention officer from April, 2012, to July, 2014, and her typical shift was from 7:00 a.m. to 7:00 p.m. See Response at 5. *641 Hidalgo County cites her deposition testimony, where she states that detention officers were not disciplined for failing to arrive earlier than their scheduled shifts. See Response at 5 (citing Deposition of Amanda Vogel-sang-Wolf at 11:79:1 (taken Aug. 19, 2014), filed October 14, 2014 (Doc. 35-1); id. at 11:80:1-6). It also asserts that she was never denied overtime pay and was compensated for on-call time whenever she was called to come work, which occurred on fewer than ten occasions throughout her tenure with Hidal-go County. See Response at 5-6. Hidalgo County contrasts Vogelsang-Wolf with Jimenez, who worked as a dispatcher from September, 2005, to November, 2013, and who testified that, although dispatchers would show up slightly before their scheduled shifts, no dispatcher was ever disciplined or admonished for their failure to do so as far as she was aware. See Response at 6. Hidal-go County points out that Jimenez testified that she usually took five to ten minutes before every shift to do work-related activity, but that during her earlier years, she would regularly perform two and a half hours a week of off-the-clock work. See Response at 7.
Hidalgo County argues that Vogelsang-Wolfs and Jimenez’ depositions make clear that they had “different interpretations of the Defendant’s policies and practices, thereby resulting in a lack of uniformity even among the nature and extent of their claims.” Response at 7. It points out, specifically, that Vogelsang-Wolf never alleges that she was illegally deprived of overtime pay for her pre-shift and post-shift activities, but, rather, that her claims are based on her on-call time. See Response at 7. Jimenez’ claims, on the other hand, are based primarily on pre-shift and post-shift work, which Hidalgo County contends makes Vogelsang-Wolf and Jimenez dissimilarly situated. See Response at 8. Hidalgo County also asserts that “both Plaintiffs acknowledge the distinctiveness of their claims from the other Plaintiffs and other potential class members,” and that, “[i]n light of these inconsistencies, Plaintiffs’ personal interpretations of Defendant’s policies and procedures cannot reasonably be stretched so far as to infer that the potential opt-ins also interpreted these policies in the same way and acted in accordance therewith.” Response at 8. Last, Hidalgo County argues that, contrary to the Plaintiffs’ assertions, there would be nothing unethical about the Plaintiffs’ counsel contacting potential class members and talking to them; notice thus serves little purpose. See Response at 10-11.
Hidalgo County also opposes class certification under rule 23. It argues that class certification is per se improper in this case, because the non-FLSA claims are “derivative of the FLSA claims asserted.” Response at 12. It argues that the Plaintiffs’ three state law claims cannot proceed, leaving the Plaintiffs with only FLSA claims. These claims, Hidalgo County asserts, must be brought using the FLSA’s collective action mechanism found in § 216(b) and not rule 23. See Response at 12-14. Hidalgo County argues that the cases upon which the Plaintiffs rely to show that class certification is proper involved independent state statutory claims and not merely catch-all claims like breach of contract and unjust enrichment. See Response at 12. Although Count I alleges NMSA violations, Hidalgo County argues that the provisions cited do not apply to it, because it is a public employer. See Response at 12. It states that Count III, the breach-of-contract claim, is likewise invalid, because “ ‘an agreement to do what one is already legally bound to do is not sufficient consideration for the promise to another.’ ” Response at 13 (quoting Salazar v. City of Albuquerque, No. CIV 10-0645 JB/ACT, 2013 WL 5554185 , at *46 (D.N.M. Aug. 20, 2013) (Browning, J.)). It argues that Count IV, for unjust enrichment, is derivative of the FLSA claim, because Hidalgo County’s enrichment is unjust only because of the alleged FLSA violations. See Response at 13-14. For these reasons, Hidalgo County argues that the Plaintiffs’ state law claims cannot provide an independent basis for rule 23 class certification.
Hidalgo County further argues that, even if class certification is not per se improper— ie., even if the Court does not conclude that the non-FLSA claims are duplicative to or derivative of the FLSA claim — the Plaintiffs have still failed to carry their burden to *642 “me[e]t the rigorous requirements of Rule 23(a).” Response at 14. It first argues that the proposed class definitions are not sufficiently definite, because they would require the Court to make “individualized inquiries of whether the plaintiffs meet the definition.” Response at 16. It contends that “some employees may have engaged in on-call work or shift-to-shift briefings during the past three years that never exceeded any overtime thresholds, and [they would be class members, but] they would not be entitled to overtime compensation under their claims.” Response at 16-17. It also argues that the term “on-call” is too vague to serve as a reliable class-definition parameter, because federal Department of Labor regulations distinguish between “on-duty” and “off-duty” on-call hours. Response at 17. It asserts that this case does not satisfy the numerosity requirement, because the Plaintiffs have not shown that joinder of fifty individual parties would be impracticable. See Response at 19.
Hidalgo County last argues that the proposed class representatives — i.e., the named Plaintiffs — are atypical and inadequate to serve their role. See Response at 19-22. It contends that the Plaintiffs’ differing interpretations of the policies create an intra-class conflict, because they “have differing opinions about how their time should have been recorded.” Response at 21. It states that, the Plaintiffs’ might have to make their substantive case — if Hidalgo County failed to keep reliable wage-and-hour records — by giving estimates of their unpaid time. See Response at 21-22. According to Hidalgo County, the two Plaintiffs’ need to present conflicting models of estimation to the jury reduces the odds that the jury will find in their favor, and, thus, the conflict prejudices their class. See Response at 22.
The Plaintiffs replied to the Response two weeks later. See Plaintiffs’ Reply in Support of Their Motion for Conditional Certification of a Collective Action Under 29 U.S.C. § 216 (b) and Certification of a Class Action Under Fed.R.Civ.P. 23(b)(3) and Memorandum in Support, filed October 28, 2014 (Doc. 37)(“Reply”). The Plaintiffs first note that— although Hidalgo County requests a higher standard than the Plaintiffs suggest for certification, and it asserts that the proposed class is not similarly situated on other grounds — Hidalgo County never contests that all proposed class members were subject to the same policies and operating procedures. See Reply at 1-2. They argue that this concession alone establishes that the Plaintiffs are similarly situated and that the Court should conditionally certify the collective action. See Reply at 2.
LAW REGARDING THE FLSA
The FLSA requires covered employers to pay a minimum wage, and to pay their nonexempt employees overtime pay of time and one half their regular rate of pay for hours worked in excess of forty in a work week. See 29 U.S.C. §§ 206-207 . The FLSA provides five means of enforcement: (i) criminal prosecutions for willful violators, see 29 U.S.C. § 216 (a); (ii) individual rights of action in civil suits to recover unpaid minimum wages, overtime compensation and certain liquidated damages, see 29 U.S.C. § 216 (b); (iii) collective actions to recover damages, which are basically opt-in class actions, see 29 U.S.C. § 216 (b); (iv) a cause of action allowing the Secretary of the Department of Labor to recover employees’ damages and for additional recovery of “an equal amount of liquidated damages,” 29 U.S.C. § 216 (e); and (v) a suit for injunctive relief, see 29 U.S.C. § 217 . “The principal congressional purpose in enacting the Fair Labor Standards Act of 1938 was to protect all covered workers from substandard wages and oppressive working hours, ‘labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well-being of workers.’ ” Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 , 101 S.Ct. 1437 , 67 L.Ed.2d 641 (1981) (alterations in original) (quoting 29 U.S.C. § 202 (a)).
1. Employers Under the FLSA.
The FLSA defines “employer” broadly:
“Employer” includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not in- *643 elude any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.
29 U.S.C. § 203 . “Whether an employment relationship exists for the purposes of the FLSA turns on the ‘economic reality’ of the working relationship.” Saavedra v. Lowe’s Home Cntrs., Inc., 748 F.Supp.2d 1273, 1285 (D.N.M.2010) (Browning, J.)(quoting Goldberg v. Whitaker House Co-op., Inc., 366 U.S. 28, 33 , 81 S.Ct. 933 , 6 L.Ed.2d 100 (1961)). The Supreme Court of the United States has instructed courts to construe the terms “employer” and “employee” expansively under the FLSA. Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 326 , 112 S.Ct. 1344 , 117 L.Ed.2d 581 (1992). See Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 , 67 S.Ct. 1473 , 91 L.Ed. 1772 (1947) (“[T]here is in the [FLSA] no definition that solves problems as to the limits of the employer-employee relationship under the Act_The definition of‘employ’ is broad.”). The Tenth Circuit has similarly recognized that “[t]he terms ‘employ and ‘employer’ are given ... broad ... definitions.” Johnson v. Unified Gov’t of Wyandotte Cnty., 371 F.3d 723 , 729 (10th Cir.2004) (Holloway, J.).
The statute is a remedial one, written in the broadest possible terms.... It runs counter to the breadth of the statute and to the Congressional intent to impose a qualification which permits an employer who exercises substantial control over a worker, but whose hiring decisions occasionally may be subjected to a third party’s veto, to escape compliance with the Act.
Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir.1984) (Timbers, J.). Employer includes persons or entities that have “managerial responsibilities” which give the person or entity “substantial control of the terms and conditions of the work of [its] employees.” Falk v. Brennan, 414 U.S. 190, 195 , 94 S.Ct. 427 , 38 L.Ed.2d 406 (1973). “Corporate officers who have a substantial ownership interest in the corporation, and who are directly involved in decisions affecting employee compensation, may be held personally liable under the FLSA.” Saavedra v. Lowe’s Home Centers, Inc., 748 F.Supp.2d 1273, 1288 (citing Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir.1983)). See Fegley v. Higgins, 19 F.3d 1126, 1131 (6th Cir.1994); Reich v. Circle C Inv. Inc., 998 F.2d 324 , 329 (5th Cir.1993); Donovan v. Grim Hotel Co., 747 F.2d 966, 972 (5th Cir.1984); Donovan v. Janitorial Services, Inc., 672 F.2d 528, 531 (5th Cir.1982); Shultz v. Mack Farland & Sons Roofing Co., 413 F.2d 1296, 1300 (5th Cir.1969).
2. The FLSA’s Minimum Wage, Overtime, and Records Requirements.
The FLSA’s § 7 requires employers to pay covered employees who, in a given workweek, work more than forty hours “at a rate not less than one and one-half times the regular rate at which [the employee] is employed.” 29 U.S.C. § 207 (a)(1). “The purpose of FLSA overtime is ‘to compensate those who labored in excess of the statutory maximum number of hours for the wear and tear of extra work and to spread employment through inducing employers to shorten hours because of the pressure of extra cost.’” Chavez v. City of Albuquerque, 630 F.3d 1300, 1304 (10th Cir.2011) (Briscoe, J.). “Contractual stipulations as to the regular rate are not controlling, because the regular rate is an ‘actual fact,’ rather than ‘an arbitrary label chosen by the parties.’ ” Chavez v. City of Albuquerque, 630 F.3d at 1305 . The United States Court of Appeals for the Tenth Circuit has recognized “that a contract cannot designate an artificially low regular rate in order to reduce the minimum statutory overtime due ..., [as] parties cannot avoid the purposes of the FLSA by designating a fictitious regular rate.” Chavez v. City of Albuquerque, 630 F.3d at 1305 (citing Walling v. Wall Wire Prods. Co., 161 F.2d 470, 473 (6th Cir.1947)).
Under the FLSA, an employer must pay its employees for the time that it “employ[s]” them, the statutory definition of which means “to suffer or permit to work.” 29 U.S.C. § 203 (g). See 29 C.F.R. § 785.6 (“By statutory definition the term ‘employ’ includes (section 3(g)) ‘to suffer or permit to work.’ The act, however, contains no definition of Vork.’ ”). “ ‘The test for whether an employee’s time constitutes working time is whether the time is spent predominantly for *644 the employer’s benefit or for the employee’s.’ ” United Transp. Union Local 1715 v. City of Albuquerque, 178 F.3d 1109, 1116 (10th Cir.1999) (quoting Gilligan v. City of Emporio, 986 F.2d 410, 412 (10th Cir.1993)). The Supreme Court has rejected the argument that Congress’ intent in enacting the FLSA was to compensate employees “for all actual work ... as those words are commonly used — as meaning physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Armour & Co. v. Wantock, 323 U.S. 126, 132 , 65 S.Ct. 165 , 89 L.Ed. 118 (1944) (quoting Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597 , 64 S.Ct. 698 , 88 L.Ed. 949 (1944)). As the Supreme Court explained:
[A]n employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a standby capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer’s property may be treated by the parties as a benefit to the employer. Whether time is spent predominantly for the employer’s benefit or for the employee’s is a question dependent upon all the circumstances of the case.
Armour & Co. v. Wantock, 323 U.S. at 133 , 65 S.Ct. 165 .
The FLSA’s § 6 requires employers to pay their employees a minimum wage. See 29 U.S.C. § 206 (a). Deductions from employees’ paychecks, for whatever reason, that brings the employees’ pay under the minimum wage violates § 6. See Donovan v. Simmons Petrol. Corp., 725 F.2d 83, 84 (10th Cir.1983) (holding that the employer’s deductions of “cash register shortages and the amount of uncollectible checks accepted by its employees from the paychecks of employees who were on duty when the shortages occurred” was a willful FLSA violation). Cf. Dole v. Solid Waste Servs., Inc., 733 F.Supp. 895, 924 (E.D.Pa.1989) (finding that deductions “for lunch breaks during which [employees were] required to continue with any duties relating to ... work,” bringing employees below minimum wage, violated the FLSA), aff'd, 897 F.2d 521 (3d Cir.1990), and aff'd sub nom. Appeal of Solid Waste Servs., Inc., 897 F.2d 524 (3d Cir.1990). Additionally, the FLSA’s § 11 imposes on an employer a duty to “make, keep, and preserve” records of its employees’ wages, hours, and “other conditions and practices of employment” that the employer may maintain. 29 U.S.C. § 211 (c). In Donovan v. Simmons Petroleum Corp., the Tenth Circuit recognized employers’ duty under the FLSA to keep accurate records in discussing the shift between the employee and employer of the burden to prove damages:
The employee bears the burden of proving he performed work for which he was not properly compensated. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 , 66 S.Ct. 1187 , 90 L.Ed. 1515 (1946). However, employers have a duty to keep accurate records. If employers do not keep accurate records the employee’s burden is extremely difficult. In order to prevent the employee from being penalized by the employer’s failure to keep adequate records, the Supreme - Court held in Anderson that an employee carries his burden by proving that he has “in fact performed work for which he was improperly compensated and ... [producing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Id. Upon such a showing, the burden shifts to the employer to produce evidence of the precise amount of work performed or to negate the reasonableness of the inference drawn from the employee’s evidence. If the employer does not rebut the employee’s evidence, then damages may be awarded even though the result is only approximate. The employer cannot complain that the damages lack the precision that would have been possible if the employer had kept the records required by law. Id. at 687-88 , 66 S.Ct. 1187 .
Donovan v. Simmons Petroleum Corp., 725 F.2d at 85-86 . The federal Department of Labor’s Wage and Hour Division requires that employers must maintain in the records *645 the time of day and day of the week on which the employee’s workweek begins, the regularly hourly pay rate for the employee in any week in which overtime compensation is due, hours worked each workday and workweek, total daily or weekly straight-time earned, and total overtime. See 29 C.F.R. § 516.2 (a). Where an employer violates its § 211(c) record-keeping duties, including by not counting time worked before and after an employee’s shift begins, the employer cannot meet its burden to rebut the Labor and Wage investigators’ reasonable estimates of backpay due to the employees. See U.S. Dep’t of Labor v. Cole Enters., Inc., 62 F.3d 775, 781 (6th Cir.1995) (“We agree with the district court’s conclusion that the calculations of the investigator are a reasonable and generous estimate of the back wages due to the Defendants’ employees for the pre-shift and postshift hours worked.”); Metzler v. IBP, Inc., 127 F.3d 959, 965-66 (10th Cir.1997) (“When the employer has failed to record compensable time ..., [t]he employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of [ 29 U.S.C. § 211 (c) ].”).
The general rule for calculating overtime is set forth in § 7(a). See 29 U.S.C. § 207 (a)(1). Because the FLSA does not put a limit
on the number of hours that an employee may work in any workweek, he may work as many hours a week as he and his employer see fit, [but, the employer must pay] the required overtime compensation ... for hours worked in excess of the maximum workweek prescribed by [the FLSA] section 7(a).
29 C.F.R. § 778.102 . The statute states: Except as otherwise provided in this section, no employer shall employ any of his employees ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.
29 U.S.C. § 207 (a)(1). See 29 C.F.R. § 778.107 (“The general overtime pay standard in section 7(a) requires that overtime must be compensated at a rate not less than one and one-half times the regular rate at which the employee is actually employed.”). The statute’s language demands that an employee receive one and one-half times the “regular rate” of pay for hours that he works in excess of forty in a given week.
One important principle is that FLSA overtime is based on the number of hours worked in a particular workweek.
The Act does not ... require ... that an employee be paid overtime compensation for hours in excess of eight per day, or for work on Saturdays, Sundays, holidays or regular days of rest. If not more than the maximum hours prescribed in the Act are actually worked in the workweek, overtime pursuant to section 7(a) need not be paid.
29 C.F.R. § 778.102 . On the other hand, that the FLSA does not require that the employer pay overtime for those hours does not relieve an employer from paying overtime for them if the contract of employment demands them. See 29 C.F.R. § 778.102 .
For the purposes of calculating overtime under the FLSA, however, the only concern is whether the total hours worked in a given workweek are above or below the statutory requirement for overtime compensation. See 29 C.F.R. § 778.102 . A second important principle about calculating overtime under the FLSA is that the employee must receive overtime pay at a rate of no less than one and one-half times the “regular rate” for which the employer employs the employee. Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424 , 65 S.Ct. 1242 , 89 L.Ed. 1705 (1945) (“The keystone of [the FLSA’s] Section 7(a) is the regular rate of compensation.”). The Supreme Court described “the regular rate” as “the hourly rate actually paid the employee for the normal, non-overtime workweek for which he is employed.” Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. at 424 , 65 S.Ct. 1242 . Since the Court’s opinion in Walling v. Youngerman-Reynolds Hardwood Co., Congress has amended the FLSA to include a description of regular rate, see 29 U.S.C. § 207 (e) (“[T]he ‘regular rate’ at which an employee is employed shall be deemed to include all re- *646 numeration for employment paid to, or on behalf of, the employee,” with eight statutory exceptions), 2 and the interpretive bulletins have incorporated the Supreme Court’s definition, see 29 C.F.R. § 778.108 (“The Supreme Court has described it as the hourly rate actually paid the employee for the normal, nonovertime workweek for which he is employed — an ‘actual fact.’ ”). Generally, the exceptions include overtime pay and compensation that is discretionary on the employer’s part. See 29 C.F.R. § 779.108 .
3. The FLSA’s Remedies.
Actions to enforce the FLSA’s overtime provisions are generally subject to a two-year statute of limitations unless the violation is willful, in which case the limitations period is three years. A lawsuit to enforce a cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages,
may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued....
29 U.S.C. § 255 (a). Willful violations occur when “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the [FLSA].” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 , 108 S.Ct. 1677 , 100 L.Ed.2d 115 (1988) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 , 105 S.Ct. 613 , 83 L.Ed.2d 523 (1985)).
Beyond the actual damages to cover the amount of unpaid minimum wages or overtime compensation, the FLSA’s § 16(c) allows additional recovery of “an equal amount of liquidated damages.” 29 U.S.C. § 216 (c). The Tenth Circuit has noted: “The purpose for the award of liquidated damages is ‘the reality that the retention of a workman’s pay may well result in damages too obscure and difficult of proof for estimate other than by liquidated damages.’ ” Renfro v. City of Emporia, 948 F.2d 1529, 1540 (10th Cir.1991) (quoting Laffey v. Nw. Airlines, Inc., 567 F.2d 429 , 463 (D.C.Cir.1976)). If the employer can show that the conduct giving rise to the action to recover back pay was in good faith, and that the employer had reasonable grounds to believe the conduct was lawful, the court may refuse to award some or all liquidated damages:
Under 29 U.S.C. § 260 , if in any action to recover unpaid overtime compensation an employer “shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the FLSA,” the court may refuse to award liquidated damages.
All circuits that have considered the matter hold that the trial court may eliminate or reduce the award of liquidated damages only if the employer shows both that he acted in good faith and that he had reasonable grounds for believing that his actions did not violate the Act.
Renfro v. City of Emporia, 948 F.2d at 1540 (quoting Doty v. Elias, 733 F.2d 720, 725 (10th Cir.1984)). The employer bears the burden to prove that the conduct was reasonable and in good faith. See Renfro v. City of Emporia, 948 F.2d at 1540 . For purposes of assessing whether the employer meets its burden, “[t]he good faith requirement mandates the employer have ‘an honest intention to ascertain and follow the dictates of the Act. The additional requirement that the employer have reasonable grounds for believing that his conduct complies with the Act imposes an objective standard by which to judge the employer’s behavior.’ ” Renfro v. City of Emporia, Kan., 948 F.2d at 1540 (quoting Doty v. Elias, 733 F.2d at 725 ). See Garcia v. Tyson Foods, Inc., 890 F.Supp.2d 1273, 1295 (D.Kan.2012) (“While the employer *647 must prove subjective good faith, it must also prove that its actions were objectively reasonable. If the employer meets that burden the court retains discretion whether to award liquidated damages.” (citations omitted)).
The FLSA’s § 17 provides that district courts “shall have jurisdiction, for cause shown, to restrain [FLSA] violations ... including ... the restraint of any withholding of payment of minimum wages or overtime compensation found by the court to be due to employees under this chapter....” 29 U.S.C. § 217 . The question whether a court should grant an injunction is left to the court’s sound discretion. See Mitchell v. Hertzke, 234 F.2d 183, 187 (10th Cir.1956) (“Although it is not clearly stated in these Labor Standards Act cases that the burden of proving the need for an injunction is upon the movant[,] that is a general principle of law and applies with legal force here.”). “The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive. Current compliance alone, particularly when achieved by direct scrutiny of the government, is not sufficient ground for denying injunctive relief.” Metzler v. IBP, Inc., 127 F.3d at 963 (alterations omitted) (citations omitted)(quoting United States v. W.T. Grant Co., 345 U.S. 629, 633 , 73 S.Ct. 894 , 97 L.Ed. 1303 (1953)); Brock v. Big Bear Market No. 3, 825 F.2d 1381, 1383 (9th Cir.1987). In exercising its discretion to grant a prospective injunction after finding a previous FLSA violation, “courts balance that finding against factors indicating a reasonable likelihood that the violation will not recur, such as the employer’s intent to comply, extraordinary efforts taken to prevent recurrence, the absence of repetitive violations, and the absence of bad faith.” Metzler v. IBP, Inc., 127 F.3d at 963 -64 (citing Martin v. Coventry Fire Dist., 981 F.2d 1358, 1362 (1st Cir.1992)).
LAW REGARDING CLASS ACTIONS
In deciding whether to certify an FLSA collective action or a rule 23 class action, the court does not decide the merits of the underlying claims or resolve factual disputes. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095 , 1106-07 (10th Cir.2001) (Briscoe, J.). “In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir.1982) (Seth, J.)(quotation omitted).
1. Rule 23.
Rule 23 3 sets forth the requirements for certifying a class action under the federal rules. See Fed.R.Civ.P. 23. All classes must satisfy: (i) all of rule 23(a)’s requirements; and (ii) one of the three sets of requirements under rule 23(b), which correspond to the three categories of classes that a court may certify. See Fed.R.Civ.P. 23(a)-(b). The plaintiff bears the burden of showing that the requirements are met, see Rex v. Owens ex rel. Okla., 585 F.2d 432, 435 (10th Cir.1978) (Barrett, J.); Pueblo of Zuni v. United States, 243 F.R.D. 436, 444 (D.N.M.2007) (Johnson, J.). In ruling on a class certification motion, the court need not accept either party’s representations, but must independently find the relevant facts to a preponderance of the evidence. 4 See Rut- *648 stein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228 , 1234 (11th Cir.2000) (Tjoflat, J.)(“Going beyond the pleadings is necessary, as a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.”)- “In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Anderson v. City of Albuquerque, 690 F.2d at 799 . See Vallarlo v. Vandehey, 554 F.3d 1259, 1267 (10th Cir.2009) (Baldock, J.)(“We, of course, adhere to the principle that class certification does not depend on the merits of a suit”). Still, the Court must conduct a rigorous analysis of the rule 23 requirements, even if the facts that the Court finds in its analysis bear on the merits of the suit:
Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule — that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. We recognized in [General Telephone Co. of the Southwest v.] Falcon, [ 457 U.S. 147 , 102 S.Ct. 2364 , 72 L.Ed.2d 740 (1982)], that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,” and that certification is proper only if “the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied. Actual, not presumed, conformance with Rule 23(a) remains indispensable.” Frequently that “rigorous analysis” will entail some overlap with the merits of the plaintiffs underlying claim. That cannot be helped. The class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action. Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation.
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 , 131 S.Ct. 2541, 2551-52 , 180 L.Ed.2d 374 (2011) (Scalia, J.). In a subsequent, seemingly contradictory admonition, however, the Supreme Court cautioned district courts not to decide the merits of the case at the class certification stage:
Although we have cautioned that a court’s class-certification analysis must be “rigorous” and may “entail some overlap with the merits of the plaintiffs underlying claim,” Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent — but only to the extent — that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.
Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. -, 133 S.Ct. 1184, 1194-95 , 185 L.Ed.2d 308 (2013) (Ginsburg, J.)(internal citation omitted). To reconcile these two directives, the court will find facts for the purposes of class certification by a preponderance of the evidence, but will allow the *649 parties to challenge these findings during the subsequent merits stage of this case. This approach is analogous to preliminary injunction practice, and, although the Tenth Circuit has not endorsed it, other circuits have. See Abbott v. Lockheed Martin Corp., 725 F.3d 803, 810 (7th Cir.2013) (Wood, J.); In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 313 (3d Cir.2008) (Seirica, J.); Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir.2004) (Niemeyer, J.). Because of the res judicata effect a class judgment has on absent parties, a court may not simply accept the named parties’ stipulation that class certification is appropriate, but must conduct its own independent rule 23 analysis. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620-22 , 117 S.Ct. 2231 , 138 L.Ed.2d 689 (1997).
a. Requirements Applicable to All Classes: Rule 23(a).
All classes must satisfy the prerequisites of rule 23(a):
(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable; .
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a). “A party seeking to certify a class is required to show ... that all the requirements of [rule 23(a) ] are clearly met.” Reed v. Bowen, 849 F.2d 1307 , 1309 (10th Cir.1988) (Anderson, J.). “Although the party seeking to certify a class bears the burden of proving that all the requirements of Rule 23 are met, the district court must engage in its own ‘rigorous analysis’ of whether ‘the prerequisites of Rule 23(a) have been satisfied.’” Shook v. El Paso Cnty., 386 F.3d 963, 968 (10th Cir.2004) (Tymkovich, J.)(quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. at 161 , 102 S.Ct. 2364 ) (citing Reed v. Bowen, 849 F.2d at 1309). These four requirements are often referenced as numerosity, commonality, typicality, and adequacy.
i. Numerosity.
Rule 23(a)(1) requires that the class membership be sufficiently large to warrant a class action because the alternative of joinder is impracticable. Some courts have held that numerosity may be presumed at a certain number; the Tenth Circuit, however, “has never adopted such a presumption.” Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir.2006) (Tymkovich, J.). The Tenth Circuit has stated that there is “no set formula” to determine whether the numerosity requirement is met; instead, it is a fact-specific inquiry best left to the district court’s discretion. Rex v. Owens, 585 F.2d at 436 . See Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 275 (10th Cir.1977) (Doyle, J.)(“Impracticability is dependent not on any arbitrary limit but upon the circumstances surrounding the ease.”). What matters is whether joinder would be impracticable, not whether the number of proposed class members would cross some threshold. Because of the fact-specific nature of the inquiry, Tenth Circuit courts “grant wide latitude to the district court in making this determination.” Trevizo v. Adams, 455 F.3d at 1162 . For example, in Johnson v. Gross, 125 F.R.D. 169 (W.D.Okla.1989) (Alley, J.), the district court found that the plaintiffs’ proposed class of twenty-eight individuals did not satisfy rule 23(a)(1), stating:
Plaintiffs have made no showing that join-der of these 28 individuals, or the personal representatives of those deceased, would be impracticable. Indeed, more than that number of defendants have been joined in this very action. Potential classes of much larger numbers have been denied class certification for failure to satisfy Rule 23(a)(1). See, e.g., In re: Wheat Farmers Antitrust Class Action Litigation, No. 129 (J.P.M.D.L. June 25, 1979), aff'd. sub nom. Zinser v. Continental Grain Co., 660 F.2d 754 (10th Cir.1981) (approximately 366 class members located in three states); Bennett v. United States, 266 F.Supp. 627, *650 629 (W.D.Okla.1965) (potential class of “all residents and property owners in metropolitan Oklahoma City” held to be “not so numerous as to require a class action”). The Court finds that it would not be impracticable to join all potential class members as plaintiffs in this action, and therefore the requirement of Rule 23(a)(1) is not satisfied.
Johnson v. Gross, 126 F.R.D. at 171. The Tenth Circuit affirmed the district court’s holding that a class of twenty-eight members was too small to meet rule 23(a)(l)’s numer-osity requirement. See Johnson v. Thompson, 971 F.2d 1487 , 1498 (10th Cir.1992) (Ebel, J.)(“Given our deferential standard of review, we cannot say that the court’s decision was in error.”). In Trevizo v. Adams, the Tenth Circuit affirmed the district court’s finding that, “although the number of putative class members — eighty-four—was not insignificant, it was not such an overwhelmingly large number as to be prohibitive of joinder.” 455 F.3d at 1162 .
In determining whether a proposed class meets the numerosity requirement, “the exact number of potential members need not be shown,” and a court “may make ‘common sense assumptions’ to support a finding that joinder would be impracticable.” Neiberger v. Hawkins, 208 F.R.D. 301, 313 (D.Colo.2002) (Babcock, J.) (citation omitted). See Bittinger v. Tecumseh Prods. Co., 123 F.3d 877 , 884 n. 1 (6th Cir.1997) (Ryan, J.)(noting that rule 23(a)(1) is not a “strict numerical test,” but holding that where a class comprises over 1,100 persons, suggestion that joinder is not impractical is “frivolous”) (citation omitted); Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir.1993) (Peckham, J.)(“[T]he difficulty in joining as few as 40 class members should raise a presumption that joinder is impracticable.”). “Satisfaction of the numerosity requirement does not require that joinder is impossible, but only that plaintiff will suffer a strong litigational hardship or inconvenience if joinder is required.” Cook v. Rockwell Int’l Corp., 151 F.R.D. 378, 384 (D.Colo.1993) (Kane, J.). See Robidoux v. Celani, 987 F.2d at 935 (“Impracticable does not mean impossible.”).
In Gonzales v. City of Albuquerque, the Court denied a motion for class certification on the grounds that the plaintiffs had not shown that joinder would not be impracticable. 2010 WL 4053947 , at *17 (D.N.M. Aug. 21, 2010) (Browning, J.). The Court did not deny certification on the basis of numbers alone, however. On the contrary, the Court stated that a proposed class of twenty-seven people could potentially satisfy the numerosity requirement in some circumstances. Gonzales v. City of Albuquerque, 2010 WL 4053947 , at *17. The Court found that the plaintiffs could not show that joining the proposed class members would be impracticable. Moreover, the plaintiff admitted that “if the class were comprised of only the twenty-seven terminated employees, it would not be worth conducting the case as a class action.” Gonzales v. City of Albuquerque, 2010 WL 4053947 , at *17.
ii. Commonality.
Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). Even “factual differences in the claims of the individual class members should not result in a denial of class certification where common questions of law exist.” In re Intelcom Grp. Sec. Litig., 169 F.R.D. 142, 148 (D.Colo.1996) (Daniel, J.). See Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir.1988) (Logan, J.)(“That the claims of individual class members may differ factually should not preclude certification under Rule 23(b)(2) of a claim seeking the application of a common policy.”); Lopez v. City of Santa Fe, 206 F.R.D. 285, 289 (D.N.M.2002) (Vazquez, J.)(“Commonality requires only a single issue common to the class, and the fact that ‘the claims of individual class members may differ factually should not preclude certification under Rule 23(b)(2) of a claim seeking the application of a common policy.’”) (citations omitted). A single common question will suffice to satisfy rule 23(a)(2), but the question must be one “that is central to the validity of each one of the claims.” Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. at 2551 .
The commonality requirement was widely perceived to lack teeth before the Supreme Court’s decision in Wal-Mart Stores, Inc. v. *651 Dukes , which grafted the following requirements onto rule 23(a)(2): (i) that the common question is central to the validity of each claim that the proposed class brings; and (ii) that the common question is capable of a common answer. See Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. at 2550-52 . In that case, a proposed class of about 1.5 million current and former Wal-Mart employees sought damages under Title VII for Wal-Mart’s alleged gender-based discrimination. See 131 S.Ct. at 2547 . Wal-Mart, however, had no centralized company-wide hiring or promotion policy, instead opting to leave personnel matters to the individual store managers’ discretion. See 131 S.Ct. at 2547-48 . The plaintiffs argued that, although no discriminatory formal policy applied to all proposed class members, “a strong and uniform ‘corporate culture’ permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s thousands of managers — thereby making every [proposed class member] the victim of one common discriminatory practice.” 131 S.Ct. at 2548 . The Supreme Court disagreed that such a theory constitutes a common question under rule 23(a)(2).
The crux of this ease is commonality— the rule requiring a plaintiff to show that “there are questions of law or fact common to the class.” Rule 23(a)(2). That language is easy to misread, since “[a]ny competently crafted class complaint literally raises common ‘questions.’ ” Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L.Rev. 97, 131-132 (2009). For example: Do all of us plaintiffs indeed work for Wal-Mart? Do our managers have discretion over pay? Is that an unlawful employment practice? What remedies should we get? Reciting these questions is not sufficient to obtain class certification. Commonality requires the plaintiff to demonstrate that the class members “have suffered the same injury,” Falcon, 102 S.Ct. at 2364 . This does not mean merely that they have all suffered a violation of the same provision of law. Title VII, for example, can be violated in many ways — by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention — for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.
What matters to class certification ... is not the raising of common “questions” — even in droves — -but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.
Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. at 2550-51 (emphasis in original)(quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L.Rev. 97, 131-132 (2009)).
In Harrington v. City of Albuquerque, 222 F.R.D. 505, 511 (D.N.M.2004) (Hansen, J.), each plaintiffs claim was based upon the defendants’ actions in collecting the fees from the plaintiffs and not upon the plaintiffs’ acts. The district court found that each class member’s claim was therefore common to the entire class. “[T]he Plaintiffs allege[d] that the entire class was subjected to the same unconstitutional practices, which is sufficient to meet the commonality requirement.” Harrington v. City of Albuquerque, 222 F.R.D. at 510 .
iii. Typicality.
Rule 23(a)(3) requires that the named representative’s claims be typical of the class’ claims. See Fed. R. Civ. P. 23(a)(3). The typicality requirement ensures that absent class members are adequately *652 represented by evaluating whether the named plaintiffs interests are sufficiently aligned with the class’ interests. See Baby Neal ex rel. Ranter v. Casey, 43 F.3d 48, 57 (3d Cir.1994) (Becker, J.). The Supreme Court has noted that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364 . “Provided the claims of Named Plaintiffs and class members are based on the same legal or remedial theory, differing fact situations of the class members do not defeat typicality.” DG v. Devaughn, 594 F.3d 1188, 1198 (10th Cir.2010) (Baldock, J.)(citing Adamson v. Bowen, 855 F.2d at 676 ). “[L]ike commonality, typicality exists where ... all class members are at risk of being subjected to the same harmful practices, regardless of any class member’s individual circumstances.” DG v. Devaughn, 594 F.3d at 1199 . Factual differences among some of the class members will “not defeat typicality under Rule 23(a)(3) so long as the claims of the class representative and class members are based on the same legal or remedial theory.” Adamson v. Bowen, 855 F.2d at 676 . See Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1189 (10th Cir.1975) (Doyle, J.)(“It is to be recognized that there may be varying fact situations among individual members of the class and this is all right so long as the claims of the plaintiffs and the other class members are based on the same legal or remedial theory.”). Accordingly, differences in the amount of damages will not defeat typicality. See Harrington v. City of Albuquerque, 222 F.R.D. at 511 . “The United States Court of Appeals for the Tenth Circuit has said that the typicality requirement is satisfied if there are common questions of law or fact.” Gianzero v. Wal-Mart Stores Inc., 2010 WL 1258071 , at *3 (D.Colo. March 29, 2010) (Blackburn, J.)(citing Milonas v. Williams, 691 F.2d 931 , 938 (10th Cir.1982) (McWilliams, J.)(“In determining whether the typicality and commonality requirements have been fulfilled, either common questions of law or fact presented by the class will be deemed sufficient.”)), cert. denied, 460 U.S. 1069 , 103 S.Ct. 1524 , 75 L.Ed.2d 947 (1983); Adamson v. Bowen, 855 F.2d at 676 (“[D]if-fering fact situations of class members do not defeat typicality under Rule 23(a)(3) so long as the claims of the class representative and class members are based on the same legal or remedial theory.”) (citations omitted).
iv. Adequacy.
Rule 23(a)(4) requires that “representative parties will fairly and adequately protect the interests of the class.” Fed. R.Civ.P. 23(a)(4). This requirement protects the due-process interests of unnamed class members, who are bound by any judgment in the action. See Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367 , 379 n. 5, 116 S.Ct. 873 , 134 L.Ed.2d 6 (1996) (Stevens, J.)(characterizing adequacy of representation as a constitutional requirement); Lile v. Simmons, 143 F.Supp.2d 1267, 1277 (D.Kan.2001) (Vratil, J.)(“Due process requires that the Court ‘stringently’ apply the competent representation requirement because class members are bound by the judgment (unless they opt out), even though they may not actually be aware of the proceedings.”). “The requirement of fair and adequate representation is perhaps the most important of the criteria for class certification set forth in Rule 23(a).... ” Miller ex rel. S.M. v. Bd. of Educ., 455 F.Supp.2d 1286, 1294 (D.N.M.2006) (Armijo, J.). See Cobb v. Avon Prods., Inc., 71 F.R.D. 652, 654 (W.D.Pa.1976) (Gourley, J.)(“Adequacy of the representative is of monumental importance since representation demands undiluted loyalty to the class interests _”). The Tenth Circuit has identified two questions relevant to the adequacy-of-representation inquiry: (i) whether the named plaintiffs and their counsel have any conflicts with other class members; and (ii) whether the named plaintiffs and their counsel will vigorously prosecute the action on behalf of the class. See Rutter & Wilbanks Carp. v. Shell Oil Co., 314 F.3d 1180, 1187-88 (10th Cir.2002) (Anderson, J.). In considering this second question, the attorney’s experience and competence may inform the court’s analysis. See Lopez v. City of Santa Fe, 206 F.R.D. at 289-90 .
The Supreme Court “has repeatedly held [that] a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class mem *653 bers.” E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403 , 97 S.Ct. 1891 , 52 L.Ed.2d 453 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216 , 94 S.Ct. 2925 , 41 L.Ed.2d 706 (1974)). Courts have found that intraclass conflicts “may negate adequacy under Rule 23(a)(4).” Langbecker v. Elec. Data Sys. Corp., 476 F.3d 299, 315 (5th Cir.2007) (Jones, J.)(holding that the district court erred in certifying a class without evaluating intraclass conflicts). See Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1280 (11th Cir.2000) (Barkett, J.)(finding that representation was inadequate where the class included those “who claim harm from the very acts from which other class members benefitted”); Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331 , 344 (4th Cir.1998) (Wilkinson, J.)(holding that the current franchisees who had an interest in the continued viability of the franchiser had an inherent conflict with former franchisees whose interest was only in the maximization of damages); Alston v. Va. High Sch. League, Inc., 184 F.R.D. 574, 579 (W.D.Va.1999) (Michael, J.)(holding that a class of all high school female athletes could not be certified — even if the alleged conduct of the defendant school system was discriminatory — when some female athletes did not share the same goals or interests as the named female plaintiffs, because those unnamed female athletes were satisfied with and/or benefitted from the alleged discriminatory treatment).
On the other hand, “only a conflict that goes to the very subject matter of the litigation will defeat a party’s claim of representative status. Beyond that straightforward proposition, defining the level of antagonism or conflict that should preclude class certification is a more difficult proposition.” 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1768, at 389-93 (3d ed.2005). “Though a plaintiff cannot be an adequate representative if he or she has a conflict of interest with putative class members, not every potential disagreement between a class representative and the putative class members will stand in the way of a class suit.” Lowery v. City of Albuquerque, 273 F.R.D. 668, 680 (D.N.M.2011) (Browning, J.) (citation omitted).
b. Different Categories of Classes Under Rule 23(b).
Once the court finds that the threshold requirements have been met, “it must then examine whether the class falls within at least one of three categories of suits set forth in Rule 23(b).” Adamson v. Bowen, 855 F.2d at 675 . See DG v. Devaughn, 594 F.3d at 1199 (“In addition to satisfying Rule 23(a)’s requirements, the class must also meet the requirements of one of the types of classes described in subsection (b) of Rule 23.”). Rule 23(b) provides that a class action is appropriate if the threshold requirements are satisfied, and the case falls into one or more of three categories:
(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against individual putative class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual putative class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual putative class members that, as a practical matter, would be disposi-tive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to putative class members predominate over any questions affecting only individual members, and that a class action is superi- or to other available methods for fairly and efficiently adjudicating the eontro- *654 versy. The matters pertinent to these findings include:
(A) the putative class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against putative class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed.R.Civ.P. 23(b). “Only one of rule 23(b)’s subdivisions must be satisfied to meet the class-action requirements.” Gonzales v. City of Albuquerque, 2010 WL 4053947 , at *11 (citing Carpenter v. Boeing, Co., 456 F.3d 1183, 1187 (10th Cir.2006) (Hartz, J.)(stating that the district court must determine whether a suit “falls within one of the categories of actions maintainable as class actions”)).
To satisfy rule 23(b)(3), the court must find “that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R.Civ.P. 23(b)(3). Rule 23(b)(3) instructs that the court should consider: (i) the class members’ interest in individually controlling the prosecution or defense of separate actions; (ii) the extent and nature of any litigation concerning the controversy already commenced by or against class members; (in) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (iv) the difficulties likely to be encountered in the management of a class action. See Fed.R.Civ.P. 23(b)(3)(A)-(D). These four factors are not generally considered separately, but rather are analyzed at the level of two requirements — both of which must be satisfied: predominance and superiority. The four factors in (b)(3)(A) through (b)(3)(D) are all probative of both requirements.
i. The Superiority Requirement.
The first requirement for certifying a(b)(3) class is superiority, which means that a class action would be superior to — not merely just as good as or more convenient than — all other available procedural mechanisms, including: (i) individual actions by class members; (ii) ordinary joinder rules, see Fed.R.Civ.P. 18-20; (iii) multidistrict litigation, see 28 U.S.C. § 1407 ; (iv) multiparty multiforum litigation, see 28 U.S.C. § 1369 ; and (v) the use of bellwether cases. The superiority requirement thus sets a high bar, but there are two ways that a proposed class can get an immediate leg up on certification, both of which involve rendering the aforementioned procedural devices impractical for the task at hand. First, the suit can consist of so-called negative value claims — claims in which the cost of litigation exceeds the likely recovery, rendering them economically non-viable without aggregation. These claims are the heart and soul of the class action, as the Supreme Court recently reaffirmed:
The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.
Amchem Prods., Inc. v. Windsor, 521 U.S. at 617 , 117 S.Ct. 2231 (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir.1997) (Cudahy, J.)). The class action absolves absent plaintiffs of the otherwise prohibitive obligations of having to hire then-own attorney, devote time and energy to their own discovery, and testify on their own behalf. The second way in which superiority can be achieved by rendering the usual procedural forms impractical is when there is such a large volume of similar cases that the judiciary would be overwhelmed if it had to treat each separately. While this consideration militates against individual treatment and counsels towards aggregation, the court must carefully consider whether another mass aggregation form, such as multidistrict litigation, might be better suited to the task.
*655 In addressing whether a proposed class action is superior, courts must start with the four factors that rule 23(b)(3)(A)-(D) enumerates, although those factors are not exhaustive. See Fed.R.Civ.P. 23 advisory committee’s notes (“Factors (A)-(D) are listed, non-exhaustively, as pertinent to the findings.”); Amchem Prods., Inc. v. Windsor, 521 U.S. at 615-16 , 117 S.Ct. 2231 (“Rule 23(b)(3) includes a nonexhaustive list of factors pertinent to a court’s ‘close look’ at the predominance and superiority criteria.”). The first factor, “the class members’ interests in individually controlling the prosecution ... of separate actions,” closely tracks the money value of the individual cases. Fed.R.Civ.P. 23(b)(3)(A). When individual actions are practical, they are preferred; the United States has a “deep-rooted historic tradition that everyone should have his own day in court,” and adjudicating individual disputes is the core activity of our judicial scheme. Martin v. Wilks, 490 U.S. 755, 762 , 109 S.Ct. 2180 , 104 L.Ed.2d 835 (1989) (quoting 18C Charles Alan Wright et al., Federal Practice Procedure, Jurisdiction & Related Matters § 4449, at 417 (1981)). The proposed class members’ emotional connection to the case may also be relevant: the stronger the attachment, the more reticent the court should be to certify the case. See Vassalle v. Midland Funding, LLC, 708 F.3d 747, 758 (6th Cir.2013) (Cole, J.); Abby v. City of Detroit, 218 F.R.D. 544, 549-50 (E.D.Mich.2003) (Duggan, J.).
Another recurring issue that arises in relation to this factor is when the statute sued under provides greater remedies for individual suits than for class suits, either by imposing a damage cap for class actions which does not apply to individual actions, or by granting statutory damages to individual plaintiffs while requiring class plaintiffs to prove actual damages. See, e.g., Fair Debt Collection Practices Act, 15 U.S.C. § 1692k(2)(B) (capping individual damages at $1,000 and class action damages at $500,000); Truth in Lending Act, 15 U.S.C. § 1640 (a) (capping individual damages at $5,000 and class action damages at $500,000). Although claims under these statutes may be more lucratively brought as individual actions, courts should assess the real-world likelihood that class members would bring their own actions, which implicates another factor the court should consider: the likelihood that proposed class members know they have a claim, and whether they are savvy enough to pursue it. See Hicks v. Client Servs., Inc., 257 F.R.D. 699, 701 (S.D.Fla.2009) (Dimitrouleas, J.)(finding superiority because “class members [most likely do not] understand the provisions well enough to know that it may be financially worthwhile to spend the time and effort to litigate these matters”). As the Honorable Loretta A. Preska, Chief United States District Judge for the Southern District of New York, wrote:
[W]hile the potential for higher individual recoveries exists, realizing that potential requires assuming that each putative class member is aware of her rights, willing to subject herself to all the burdens of suing and able to find an attorney willing to take her case. Those transaction costs are not insubstantial and have prompted other courts in this Circuit to conclude that litigating as a class is superior.
Kalish v. Karp & Kalamotousakis, LLP, 246 F.R.D. 461, 464 (S.D.N.Y.2007) (Preska, J.)(internal citation and quotation marks omitted). See Jancik v. Cavalry Portfolio Servs., LLC, No. CIV 06-3104 MJD/AJB, 2007 WL 1994026 , at *11 (D.Minn. July 3, 2007) (Davis, J.)(“[T]he truth is that the putative plaintiffs in this ease are not likely to know their rights and are therefore not likely to pursue these claims on their own.”).
The second enumerated (b)(3) factor, “the extent and nature of any litigation concerning the controversy already begun by ... class members,” is closely linked to the first factor. Fed.R.Civ.P. 23(b)(3)(B). The advisory notes to the rules state that “[t]he court is to consider the interests of individual members of the class in controlling their own litigations and carrying them on as they see fit. In this connection the court should inform itself of any litigation actually pending by or against the individuals.” Fed.R.Civ.P. 23 advisory committee’s notes (citations omitted). This passage suggests that the extent to which proposed class members have already filed individual claims is probative evidence of the extent to which they will contin *656 ue to file individual claims in the event of certification denial, and indicates a higher “interest[ ] in individually controlling the prosecution.” Fed.R.Civ.P. 23(b)(3)(A). It is also probative evidence whether the claims are truly negative value or whether the plaintiffs’ counsel is merely representing that they are to enhance his argument for certification.
In evaluating the (b)(3)(A) and (b)(3)(B) factors, the court must keep in mind a powerful fact that counsels strongly in favor of superiority: (b)(3) class actions give all proposed class members the opportunity to opt out of inclusion in the class. See Fed. R.Civ.P. 23(c)(2)(B). The individual actions that rule 23(b)(3)(B) directs the court to consider would not be swept under the class action’s umbrella, nor would certification interfere with the litigation autonomy of any proposed class member who plans to file an individual claim but has yet to do so. The sole group that rule 23(b)(3)(A) and (b)(3)(B) protects consists only of those individuals who (i) have not yet filed an individual action, (ii) but are identifiable by proposed class counsel as having a claim, (iii) who are sent notice of their claim, (iv) who still, upon receiving notice, fail to meet with an attorney to file an individual claim or even to opt out of the class, and (v) only later develop an interest in pursuing an individual claim, and find themselves unable to do so because of the res judicata effect that a class action has on its members. As a practical matter, in most instances, this group contains few people, if any. Individuals interested in litigating their claims individually will most likely have already filed suit; at the very latest, receipt of the class notice will spur them into action. For this reason, the Court believes that concerns about (b)(3) class actions’ intrusions into litigant autonomy are overblown and even somewhat paternalistic.
The Court does not write off the rule 23(b)(3)(B) factor entirely, however, as it does provide one piece of useful, specific guidance. The rule speaks not only of assessing the “extent ... of any litigation ... already begun” — presumably meaning the raw number of cases filed relative to the size of the proposed class — but also of the “nature of any litigation ... already begun.” Fed.R.Civ.P. 23(b)(3)(B). The Court interprets this language to mean that it must look at what procedural forms the proposed class members’ cases have taken. For example, if a group of asbestos plaintiffs file for class certification, the court should decline to certify on the ground that asbestos cases are consolidated in multidistrict litigation in the United States District Court for the Eastern District of Pennsylvania. See In re Asbestos Prods. Liability Litig. (No. VI), MDL No. 875 (E.D.Penn.) (Robreno, J.). Furthermore, the Court concludes that, if a class has already been certified to pursue certain claims, redundant classes should generally not be certified. 5 See Rubenstein, Newberg on Class Actions § 4:70 (5th ed.)(“[I]f a class action case is already pending, certification of another class suit might not be sensible or superior to the current litigation posture.”)(emphasis in original). Subsequent proposed classes should either be defined to *657 avoid class member-overlap with previously certified classes or else should assert different claims.
The third rule 23(b)(3) factor is “the desirability or undesirability of concentrating the litigation of the claims in the particular forum,” which can be split into two prongs: (i) whether aggregation is desirable; and (ii) whether the particular court at issue is a desirable forum to adjudicate the aggregated dispute. Fed.R.Civ.P. 23(b)(3)(C). The first prong, whether aggregation is desirable, is considered a recitation of the general superiority inquiry; all of the aforementioned factors and considerations apply, and courts should, additionally, consider the interest of judicial economy — from this perspective, the more cases that can be aggregated, the better. See Newberg § 4:71. The second prong is whether the particular court at issue is a desirable forum for the litigation. Some issues that reliably influence the determination of this prong include: (i) the geographic convenience of the parties, witnesses, or class counsel, see Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 , 1191-92 (9th Cir.2001) (Gould, J.); (ii) the locus of the harm, as well as any other events forming the basis of the action, see Winkler v. DTE, Inc., 205 F.R.D. 235, 245 (D.Ariz.2001) (Bolton, J.); (iii) the location of the bulk of the proposed class, see Macarz v. Transworld Sys., Inc., 193 F.R.D. 46, 57 (D.Conn.2000) (Bolton, J.); and (iv) whether the defendant is located in the forum state, see In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 , 534 (3d Cir.2004) (Fuentes, J.). “The particular court at issue” does not refer only to the desirability of the United States District Court for the District of New Mexico, or even of the Albuquerque division. Rather, the prong’s inquiry extends all the way down to the level of the individual district judge. For example, if a district judge has already made several precertification preliminary rulings, see Elay v. Humana, Inc., 382 F.3d 1241, 1271 (11th Cir.2004) (Tjoflat, J.); if he or she has other, similar actions consolidated in his court, see Beaulieu v. EQ Indus. Servs., Inc., No. 5:06-CV-00400-BR, 2009 WL 2208131 , at *23 (E.D.N.C. July 22, 2009) (Britt, J.); In re Relafen Antitrust Litig., 218 F.R.D. 337, 347 (D.Mass.2003) (Young, J.); or even if he or she possesses particular expertise at handling the claims alleged by the proposed class, the judge may weigh those facts in favor of a finding of superiority.
The fourth, final, and most important factor a court must consider in assessing superiority is the extent to which the court will be able to manage the class action, if certified, through pretrial litigation and trial, accurately adjudicating the class’ claims — in particular the individual issues— and fairly distributing relief among the class members. See Fed.R.Civ.P. 23(b)(3)(D). The manageability factor “encompasses the whole range of practical problems that may render the class action format inappropriate for a particular suit.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 164 , 94 S.Ct. 2140 , 40 L.Ed.2d 732 (1974). Courts should not judge manageability in a vacuum, but rather — as a part of the superiority analysis— they should assess how the difficulties the class action device present stack up against the difficulties that other available procedural mechanisms present. See Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1358 (11th Cir.2009) (Pryor, J.)(“[W]e are not assessing whether this class action will create significant management problems, but instead determining whether it will create relatively more management problems than any of the alternatives.”) (citation omitted). The principal concern in a manageability inquiry is individualization. The size of a proposed class, on its own, does not affect manageability; increasing the size of a proposed class only hurts manageability if it introduces new proposed class members with individual issues. See Carnegie v. Household Int’l, Inc., 376 F.3d 656, 660-61 (7th Cir.2004) (Posner, J.). As such, several courts have held that, if the predominance requirement is met, then the court should not decline to certify the class on manageability grounds alone.
The predominance analysis has a tremendous impact on the superiority analysis for the simple reason that, the more common issues predominate over individual issues, the more desirable a class action lawsuit will be as a vehicle for adjudicating the plaintiffs’ claims both relative to other *658 forms of litigation such as joinder or consolidation, and in absolute terms of manageability.
Sacred Heart Health Systems, Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d 1159, 1184 (11th Cir.2010) (internal citations and quotation marks omitted)(Marcus, J.). See Klay v. Humana, Inc., 382 F.3d at 1272 (“[W]here a court has already made a finding that common issues predominate over individualized issues, we would be hard pressed to conclude that a class action is less manageable than individual actions.”).
ii. The Predominance Requirement.
Rule 23(b)(3)’s second requirement is predominance of common questions over individual ones. See Fed.R.Civ.P. 23(b)(3). While the question of superiority evaluates the desirability of the class action device relative to other procedural forms, the predominance inquiry is absolute. Predominance means that the questions common to the class predominate over those that are individualized. A question is common when “the same evidence will suffice for each member to make a prima facie showing,” Blades v. Monsanto Co., 400 F.3d 562, 566 (8th Cir.2005) (Arnold, J.), or when the issue is “susceptible to generalized, class-wide proof,” In re Nassau Cnty. Strip Search Cases, 461 F.3d 219, 227 (2d Cir.2006) (Straub, J.). A question is individual when “the members of a proposed class will need to present evidence that varies from member to member,” Blades v. Monsanto Co., 400 F.3d at 566 . Although a case need not present only common questions to merit certification, and the presence of some individual questions does not destroy predominance, the rule 23(b)(3) predominance requirement is much stricter than the rule 23(a)(1) commonality requirement: the latter requires only that a common question or questions exist; the former requires that the common question or questions predominate over the individual ones. See Amchem Prods., Inc. v. Windsor, 521 U.S. at 623-24 , 117 S.Ct. 2231 ; In re Thornburg Mortg., Inc. Sec. Litig., 912 F.Supp.2d at 1225 (“The predominance criterion of rule 23(b)(3) is ‘far more demanding’ than rule 23(a)(2)’s commonality requirement”). As the Tenth Circuit, addressing a Title VII claim, put it:
The myriad discriminatory acts that Plaintiffs allege (e.g., failure to promote, failure to train, unequal pay, disrespectful treatment, etc.) each require independent legal analysis, and similarly challenge the predominance requirement of Rule 23(b)(3) if not also the commonality requirement of Rule 23(a).
Although we do not rest our decision upon Rule 23(a), cases that interpret that the commonality requirement of Rule 23(a) illustrate the instant Plaintiffs’ inability to satisfy Rule 23(b)(3)’s ‘far more demanding’ requirement that common issues predominate.
Monreal v. Potter, 367 F.3d 1224, 1237 (10th Cir.2004) (Ebel, J.)(footnote omitted).
The predominance inquiry is a qualitative, not quantitative, one; a single common issue may predominate over numerous individual ones. See Butler v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir.2013) (Posner, J.); Chavez v. Don Stoltzner Mason Contractor, Inc., 272 F.R.D. 450, 455 (N.D.Ill.2011) (Kennelly, J.); Olson v. Tesoro Refining & Mktg. Co., No. C061311 RSL, 2007 WL 2703053 , at *6 (W.D.Wash.2007) (Lasnik, J.). Likewise, rule 23(b)(3) “does not require that common issues be dispositive or significant,” but merely that they predominate over the individual inquiries. In re Potash Antitrust Litig., 159 F.R.D. 682, 699 (D.Minn.1995) (Kyle, J.). That the answer to a common question is not disputed — for example, if the parties have stipulated as to the answer or the court has already ruled — does not affect either its commonality or its ability to predominate. See In re Nassau Cnty. Strip Search Cases, 461 F.3d at 228 .
Examining the ease law, the Court notes several recurring individual issues that often exist in the class action context, but which rarely defeat a predominance finding, such as: (i) individual damage calculations, especially when an objective — usually formulaic— damages determination can be made without individual subjective inquiry, see Comcast Corp. v. Behrend, — U.S. -, 133 S.Ct. *659 1426, 1437 , 185 L.Ed.2d 515 (2013) (Ginsburg & Breyer, JJ., joined by Sotomayor & Ka-gan, JJ., dissenting)(“Recognition that individual damages calculations do not preclude class certification under Rule 23(b)(3) is well nigh universal.”); (ii) a defendant’s desire to assert individual counterclaims — generally speaking, counterclaims, even common ones, are not permitted against absent class members at all, see Phillips Petrol. Co. v. Shutts, 472 U.S. 797, 810 , 105 S.Ct. 2965 , 86 L.Ed.2d 628 (1985); Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248 , 1260 (11th Cir.2003) (Wilson, J.); (iii) a defendant’s desire to assert individual affirmative defenses, see Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 39 (1st Cir.2003) (Lynch, J.)(“Courts traditionally have been reluctant to deny class action status under Rule 23(b)(3) simply because affirmative defenses may be available against individual members.”); or (iv) a defendant raising individual statute-of-limitations defenses. 6 Other recurring individual issues present more serious challenges to predominance, such as: (i) the prima facie element of reliance or due diligence in common-law fraud and other cases; 7 (ii) differences in the applicable law in a multi-state, state law-based class actions, see Castano v. Am. Tobacco Co., 84 F.3d 734, 741 (5th Cir.1996) (Smith, J.); and (iii) the need to determine individual personal injury damages, which presents such a challenge to predominance that class certification of mass tort claims is now exceedingly rare, see Amchem Prods., Inc. v. Windsor, 521 U.S. at 625 , 117 S.Ct. 2231 .
There is little uniform guidance on how to assess when common issues predominate over individual ones, and the Court’s statements to this point have done more to disavow various tempting but fallacious rules than they have to set forth a usable standard. The Court concludes that the best approach — one that is rooted in rule 23’s text, gives the otherwise vague term content, and advances the purposes of the class certification inquiry — is to assess predominance through the lens of rule 23(b)(3)(D), the manageability inquiry. See Sacred Heart Health Systems, Inc. v. Humana Military Healthcare Sens., Inc., 601 F.3d at 1184 . A proposed class action satisfies predominance if common issues exist in the “right” places in the case that allow the court to adjudicate the dispute fairly and efficiently — to accurately resolve all the claims for which the court certifies the class.
[A] court addressing predominance must determine whether the evidence about the putative class representative’s circumstances and the opposing evidence from the defense will enable a jury to make across-the-board “yes” or “no” factual determinations that fairly resolve the claims of the entire class. Where the right to *660 recover for each class member would “turn ... on facts particular to each individual plaintiff,” class treatment makes little sense. If the resolution of the common issues devolves into an unmanageable variety of individual issues, then the lack of increased efficiency will prohibit certification of the class.
The predominance and efficiency criteria are of course intertwined. When there are predominant issues of law or fact, resolution of those issues in one proceeding efficiently resolves those issues with regard to all claimants in the class. When there are no predominant issues of law or fact, however — as in the instant case — class treatment would be either singularly inefficient, as one court attempts to resolve diverse claims from around the country in its own courtroom, or unjust, as the various factual and legal nuances of particular claims are lost in the press to clear the lone court’s docket.
See McLaughlin on Class Actions § 5:23 (10th ed.)(footnotes omitted)(quoting Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999 , 1006 n. 12 (11th Cir.1997) (Tjoflat, J.)).
District courts have myriad tools for managing class actions and can design new tools to suit the needs of individual cases: “[W]hen a judge becomes convinced that a case is ‘complex,’ procedural innovation often replaces procedural conservatism.” Jay Tid-marsh & Roger H. Trangsrud, Modern Complex Litigation 34 (2d ed.2010). Most techniques that are truly “procedural” are fair game: eases can be bifurcated, trifurcated, or polyfurcated; trials can be conducted in multiple stages or phases; and, provided that each defendant’s overall monetary liability can be ascertained, the sometimes difficult question of how to distribute said damages among the class can be addressed with less formality. 8 Techniques that merely presume away substantive elements that normally must be proven by the plaintiff, or that would impair a defendant’s Due Process rights, however, are not permissible. In particular, the Supreme Court has expressly disavowed “trials by statistics,” or “trials by formula,” either as to liability or damages. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. at 2561 . This formerly popular tool involved a small but representative sample of class members presenting evidence on individual questions in their own cases and inviting the jury to extrapolate its conclusions from the sample to the entire class. See, e.g., Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. at 2561 .
The Supreme Court bars this method of trying eases, because it violates the defendant’s right to have (i) each element of (ii) each claim asserted against it by (iii) each class member specifically proven. See Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. at 2561 . 9 When issues are truly common, multiple class members’ claims — or at least elements thereof — can be specifically proven in one fell swoop; this common determination forms the basis of the class action. Truly individual issues, on the other hand, must be adjudicated individually and not by statistical inference.
*661 Although courts cannot sacrifice the defendant’s rights for the economic convenience of the plaintiffs, neither should they forego the advantages of class certification merely to convenience the defendant in carrying burdens that the defendant would have to carry even if the litigation was conducted individually. If the defendant ordinarily bears the burden to produce certain evidence or prove certain allegations, that the burden might be exceptionally inconvenient for it do so on an individual basis against an enormous number of class members does not weigh against class certification. For example, if a defendant is sued in a breaeh-of-eontract class action in which 1,000 class members allege that the defendant was not properly performing a term in an identical form contract executed between the defendant and every class member, the defendant might wish to introduce individualized parol evidence — such as oral communications contemporaneous with the signing of the written instrument explaining the disputed term — or inject individual issues into the case by asserting affirmative defenses — such as that certain class members waived performance of the disputed term. The defendant would be free to pursue these strategies, but, just as it would in 1,000 individual suits, it must discover and present proof against each individual class member to whom these theories apply. Just as plaintiffs cannot conduct trials by statistics, the defendant could not put one-hundred class members on the stand to testify to waiver and then expect anything more than a ten-percent decrease in class damages as a result. Although this burden may seem unfair to the defendant, it would have to expend the same energy and resources if the 1,000 suits were brought individually. That such suits might never be brought — because they would not be economically viable for the plaintiffs or because the plaintiffs are not aware of their claims — does not excuse the defendant of its ordinary litigation burdens. In short, the issues that most cut against a finding of predominance are those individual questions that would ordinarily be the plaintiffs burden to answer at trial: elements of the prima facie case and individualized rebuttals of any common affirmative defenses that the defendant asserts.
c. Class Order.
Rule 23(c) provides the requirements for a court order certifying a class:
(a) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses.
(1) Certification Order.
(A) Time to Issue. At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.
(B) Defining the Class; Appointing Class Counsel. An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).
(C) Altering or Amending the Order. An order that grants or denies class certification may be altered or amended before final judgment.
Fed.R.Civ.P. 23(c). The United States Court of Appeals for the Third Circuit addressed the rule 23(c)(l)(B)’s requirements after the 2003 amendments to the Federal Rules of Civil Procedure, holding that “Rule 23(c)(1)(B) requires district courts to include in class certification orders a clear and complete summary of those claims, issues, or defenses subject to class treatment.” Wachtel v. Guardian Life Ins. Co. of America, 453 F.3d 179 , 184 (3d Cir.2006) (Smith, J.). The Third Circuit noted that “most district court opinions fell short of this standard.” Nafar v. Hollywood Tanning Sys., Inc., 339 Fed.Appx. 216 , 219 (3d Cir.2009).
The proper substantive inquiry for an appellate tribunal reviewing a certification order for Rule 23(c)(1)(B) compliance is whether the precise parameters defining the class, and a complete list of the claims, issues, or defenses to be treated on a class basis, are readily discernible from the text either of the certification order itself or of an incorporated memorandum opinion. Wachtel v. Guardian Life Ins. Co. of America, 453 F.3d at 185.
*662 2. Collective Actions Under § 216(b).
Under the FLSA’s 216(b), “any one or more employees” may maintain an action to recover unpaid overtime wages “for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216 (b). This provision provides the exclusive mechanism to certify an FLSA class action. See Prickett v. DeKalb Cnty., 349 F.3d 1294, 1296 (11th Cir.2003) (per curiam). The Eleventh Circuit explained that “FLSA plaintiffs may not certify a class under Rule 23” because § 216(b)’s optin requirement demonstrates that Congress intended FLSA plaintiffs to use § 216(b). Section 216(b) requires a potential collective-action member to “give his consent in writing” to become a party. 29 U.S.C. § 216 (b). Rule 23(b), in contrast, considers each person within the class description as a class member unless he or she opts out. Fed.R.Civ.P. 23(b). See LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir.1975) (per curiam)(“There is a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by FLSA § 16(b).”); Renfro v. Spartan Computer Servs., Inc., 243 F.R.D. 431, 432 (D.Kan.2007) (Vratil, J.)(finding § 216(b) to be the exclusive means to certify an FLSA class action). Because of the procedural discrepancy between § 216(b) collective actions and rule 23 class actions, courts have found that the FLSA’s § 216(b) opt-in procedure preempts rule 23’s class-action procedure. See King v. Gen. Elec. Co., 960 F.2d 617 , 621 (7th Cir.1992) (Cudahy, J.) (interpreting the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 -6S[4 — which expressly incorporates the collective action provisions of the FLSA — and finding that the FLSA’s § 16(b) opt-in procedure preempts rule 23’s class-action procedure); Lusardi v. Lechner, 855 F.2d 1062 , 1068 n. 8 (3d Cir.1988) (Hutchinson, J.)(“Courts have generally recognized that Rule 23 class actions may not be used under FLSA § 16(b).”); Grayson v. K Mart Corp., 79 F.3d 1086, 1106 (11th Cir.1996) (Garth, J.)(“Congress clearly adopted the optin joinder procedures of Section 216(b) of the FLSA and thus impliedly rejected the Rule 23 class action procedures.”).
To use § 216(b)’s collective-action mechanism, each employee who wishes to pursue his claims under the FLSA must affirmatively opt in to the case in writing. 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 an action is brought.”). Potential plaintiffs must therefore obtain notice about the pending collective action so they can decide whether to participate. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 , 110 S.Ct. 482 , 107 L.Ed.2d 480 (1989). The FLSA authorizes parties to send notice of the opportunity to opt in to the collective action if members of the proposed class are “similarly situated.” 29 U.S.C. § 216 (b).
Although the FLSA does not define the phrase “similarly situated,” the Tenth Circuit has established an ad hoc approach where the court determines on a case-by-case basis whether the members of the putative class are similarly situated. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d at 1105. By adopting the “similarly situated” standard, as opposed to rule 23’s standard, the Tenth Circuit has found that Congress chose to authorize collective actions under a less-stringent standard than rule 23 class actions. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d at 1105 (“Congress clearly chose not to have the Rule 23 standards apply to class actions under the ADEA, and instead adopted the ‘similarly situated’ standard. To now interpret this ‘similarly situated’ standard by simply incorporating the requirements of Rule 23 ... would effectively ignore Congress’ directive.”). See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. at 170 , 110 S.Ct. 482 (interpreting the ADEA and finding that by enacting § 216(b)’s “similarly situated” language, “Congress has stated its policy that ... plaintiffs should have the opportunity to proceed collectively.”).
Under the Tenth Circuit’s approach, the court engages in a two-step process. First, the court makes an initial determination whether the plaintiffs are “similarly situated” at the notice stage. The initial determination decides whether a collective action should be certified for purposes of notifying *663 See Myers v. Hertz potential class members. Corp., 624 F.3d 537, 555 (2d Cir.2010) (Livingston, J.); Renfro v. Spartan Computer Servs., Inc., 243 F.R.D. at 432. The plaintiff bears the burden of showing that she is “similarly situated” to other potential class members; however, this burden is not great. A plaintiff “need only describe the potential class within reasonable limits and provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist.” Schwed v. Gen. Elec. Co., 159 F.R.D. at 375-76. See Renfro v. Spartan Computer Servs., Inc., 243 F.R.D. at 432 (finding that this stage requires nothing more than substantial allegations that the proposed class members were together the “victims of a single decision, policy or plan”).
Courts of Appeals that have considered the meaning of “similarly situated” have consistently defined the phrase to require a minimal showing. See Myers v. Hertz Corp., 624 F.3d at 555 (requiring plaintiffs to “make a ‘modest factual showing that they and potential opt-in plaintiffs ‘together were victims of a common policy or plan that violated the law ”) (citing Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997) (Sotomayor, J.)); Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir.2008) (Hull, J-)(“[U]nder § 216(b), courts determine whether employees are similarly situated— not whether their positions are identical.”). The plaintiff must support this “modest factual showing,” see Dybach v. State of Fla. Dep’t of Corrections, 942 F.2d 1562, 1567 (11th Cir.1991) (Kaufman, J.), “but it should remain a low standard of proof because the purpose of this first stage is merely to determine whether ‘similarly situated’ plaintiffs do in fact exist,” Myers v. Hertz Corp., 624 F.3d at 555 . The Fifth Circuit has described the standard for certification at this stage as “lenient,” typically resulting in class certification. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 (5th Cir.1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 , 123 S.Ct. 2148 , 156 L.Ed.2d 84 (2003).
The second step occurs at the close of discovery, after all potential plaintiffs have opted in to the action. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d at 1103. See also Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir.2006) (Boggs, J.). The second stage requires the court to use a stricter standard of determining whether the class is “similarly situated” and may therefore proceed to trial as a collective action. This determination requires the court to evaluate several factors, including: (i) individual plaintiffs’ disparate factual and employment settings; (ii) the defendants’ various defenses that appear to be individual to each plaintiff; and (iii) fairness and procedural considerations. Thiessen v. Gen. Elec. Capital Corp., 267 F.3d at 1102-03.
ANALYSIS
The primary issues are: (i) whether to conditionally certify this case as a collective action under 29 U.S.C. § 216 (b); and (ii) whether to certify this case as a class action under rule 23(b)(3) of the Federal Rules of Civil Procedure. Because the Plaintiffs have pled facts that suggest that the proposed class is similarly situated with regard to the alleged FLSA violations, the Court will conditionally certify the case as a collective action. As to the second issue, the Plaintiffs have not yet demonstrated the proposed class’ compliance with rules 23(a) and 23(b)(3). Accordingly, the Court will deny the request for class certification without prejudice to allow them to renew it later, when and if they can support the motion with evidence. The Court thus grants the Motion in part and denies it in part.
I. THE PLAINTIFFS HAVE PLED SUFFICIENT FACTS TO DEMONSTRATE THE PROPOSED CLASS IS “SIMILARLY SITUATED” WITHIN THE MEANING OF THE FLSA’S § 216(b).
The FLSA’s § 216(b) allows “any one or more employees” to maintain an action to recover unpaid overtime wages “for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216 (b). At the notice stage, the court makes an initial determination whether plaintiffs are “similarly situated.” This inquiry requires no more than substantial allegations that the proposed class members were *664 together the “victims of a single decision, policy or plan.” Renfro v. Spartan Computer Sews., Inc., 243 F.R.D. at 432. See Myers v. Hertz Corp., 624 F.3d at 555 (requiring plaintiffs to “make a ‘modest factual showing’ that they and potential opt-in plaintiffs together were victims of a common policy or plan that violated the law”)(citing Hoffmann v. Sbarro, Inc., 982 F.Supp. at 261 ); see Morgan v. Family Dollar Stores, Inc., 551 F.3d at 1260 (“[U]nder § 216(b), courts determine whether employees are similarly situated — not whether their positions are identical.”)(citing Grayson v. K Mart Corp., 79 F.3d at 1096 ). Although the plaintiff must support this “modest factual showing,” see Dybach v. State of Fla. Dep’t of Corrections, 942 F.2d at 1567 , “it should remain a low standard of proof because the purpose of this first stage is merely to determine whether ‘similarly situated’ plaintiffs do in fact exist.” Myers v. Hertz Corp., 624 F.3d at 555 .
Courts evaluate several factors in this initial determination, including whether potential class members: (i) have the same employer; (ii) are subject to the same employer practices; (iii) suffer the same method of calculation of wages owed; and (iv) allege FLSA violations based on the same conduct. See Hasken v. City of Louisville, 213 F.R.D. 280, 282 (W.D.Ky.2003). Some courts focus more on the similarity between job duties and pay provisions of the plaintiffs and those in the proposed class. See, e.g., Bradford v. Bed Bath & Beyond, Inc., 184 F.Supp.2d 1342, 1345 (N.D.Ga.2002) (Story, J.)(“The only determinative issue is whether Plaintiffs’ job duties were similar.”); Tucker v. Labor Leasing, Inc., 872 F.Supp. 941, 948 (M.D.Fla.1994) (Schlesinger, J.). Other courts focus more closely on the similarity of the plaintiffs’ and proposed class members’ claims. See, e.g., Barron v. Henry Cnty. Sch. Sys., 242 F.Supp.2d 1096, 1103 (M.D.Ala.2003) (Albritton, C.J.).
District courts in the Tenth Circuit consider numerous factors, without making one factor dispositive. For example, in Hasken v. City of Louisville, the court found that the plaintiffs and potential opt-in plaintiffs were similarly situated where the defendant employer used the same method to calculate overtime compensation for all members of the group. See 213 F.R.D. at 282 . The plaintiffs, current and former firefighters, alleged that the City of Louisville miscalculated the hourly rate of pay for overtime. See 213 F.R.D. at 281 . All firefighters worked for the same employer, and were all subject to the same method for calculating overtime wages. See 213 F.R.D. at 282 . Although the court found these facts insufficient to grant the motion to form a class under rule 23(b), the court granted the motion under the FLSA’s § 216(b). See 213 F.R.D. at 282 .
Many Courts of Appeals also use a multi-factor approach. For instance, the United Stated Court of Appeals for the Sixth Circuit found that proposed class members were similarly situated even though proof of an FLSA violation as to one plaintiff did not prove that the defendant violated any other plaintiffs’ rights. See O’Brien v. Ed Donnelly Enter., Inc., 575 F.3d 567, 585 (6th Cir.2009) (Tarnow, J.). The court noted that plaintiffs are clearly similarly situated “when they suffer from a single FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs.” 575 F.3d at 585 . Even though proof of a violation as to one plaintiff did not clearly establish the defendant’s liability to other plaintiffs, the court found that the plaintiffs were similarly situated because all of the plaintiffs based their claims on common theories of how the defendant violated the FLSA. O’Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d at 585 . The court noted that proving the defendant’s liability to each plaintiff would require “individualized and distinct” proof. Nevertheless, the plaintiffs argued they were all injured by the defendant’s practices of forcing employees to perform uncompensated work and editing time sheets. O’Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d at 585 . In sum, because all of the plaintiffs were injured by the same alleged FLSA violations, the court found them similarly situated.
Here, the Plaintiffs share many of the attributes the courts have found sufficient to meet § 216(b)’s standard. First, the same employer, Hidalgo County, employs the Plaintiffs and the members within each of the *665 potential sub-classes. See Motion at 11. Second, they work in the same location and perform largely similar job duties. See Motion at 11. Third, they are members of the same bargaining unit governed by the same County Labor Ordinance, and are subject to the same policies and operating procedures. See Motion at 11. Finally, and most importantly, their damages all derive from the same “decision, policy or plan” of allegedly requiring pre-shift, post-shift, or on-call work. See Motion at 11. As in O’Brien v. Ed Donnelly Enterprises, Inc., all of the plaintiffs here based their claims on common theories of how the defendant violated the FLSA. See O’Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d at 585. In O’Brien v. Ed Donnelly Enterprises, Inc., the plaintiffs argued they and proposed collective-action members were all injured by the defendant’s practices of forcing employees to perform uncompensated work and editing time sheets. O’Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d at 585. Here, all of the plaintiffs argue that they and proposed collective-action members were all injured by Hidalgo County’s practice of requiring employees to perform uncompensated pre-shift, post-shift, or on-call work. In sum, all of the plaintiffs here (i) work for the same employer, (ii) operate under the same employment policies, and (iii) assert injuries arising from the same alleged FLSA violations.
The greatest difference between members relate to the extent of their damages. This difference, however, does not defeat their claim. “It is well established that individual questions with respect to damages will not defeat class certification ... unless that issue creates a conflict which goes to the heart of the lawsuit.” Reab v. Elec. Arts, Inc., 214 F.R.D. at 629 (finding that plaintiffs demonstrated they were similarly situated to proposed class members)(citing Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81 (S.D.N.Y.2001)); In re AM Int’l, Inc. Sec. Litig., 108 F.R.D. 190 (S.D.N.Y.1985).
Small differences between plaintiffs and proposed class members will not prevent the court from finding them similarly situated. Where proposed class members are employed in similar positions, that the employer defendant engaged in a pattern of not paying overtime is sufficient to allege that plaintiffs are similarly situated with potential opt-in plaintiffs. See Brown v. Money Tree Mortg. Inc., 222 F.R.D. 676, 681 (D.Kan.2004) (Lungstrum, J.); Renfro v. Spartan Computer Servs., Inc., 243 F.R.D. at 434. Some variation in their specific job duties will not destroy this designation at this stage of the litigation. See Renfro v. Spartan Computer Servs., Inc., 243 F.R.D. at 434 (declaring the potential plaintiffs similarly situated with the named plaintiffs despite variation in the job duties, so long as they all shared responsibility in maintaining point-of-sale systems); Pivonka v. Bd. Of Cnty. Comm’rs of Johnson Cnty., Kan., No. 04-2598-JWL, 2005 WL 1799208 , at *4 (D.Kan. July 27, 2005) (Lungstrum, J.)(finding that variations in job duties did not destroy the initial class certification where all employees shared general duties and their injuries all arose from the employer’s failure to pay overtime). Given that (i) the same defendant employer employed all of the Plaintiffs and the proposed class members, (ii) the Plaintiffs and the proposed class members all performed similar job duties, and (iii) the Plaintiffs and the proposed class members all assert injury from the same alleged FLSA violations, the Plaintiffs have satisfied the low threshold to demonstrate at the initial notice stage that all proposed class members are similarly situated for purposes of conditional collective action certification under the FLSA’s § 216(b).
Hidalgo County’s arguments are unavailing at this first step of the Tenth Circuit’s ad hoc approach. Hidalgo County first argues that the Court should use a more rigorous standard for certification at the initial notice stage, because a significant amount of discovery has already been conducted. See Response at 2-3. As Hidalgo County concedes, however, courts within the Tenth Circuit have generally refused to bypass the lenient stage. See Response at 3; id. at 3 n. 2. Hidalgo County argues that courts use the lenient standard in early stages of the litigation because the plaintiffs have not had enough time to conduct discovery. See Response at 3. But this is not the only reason courts use the lenient standard. Rather, *666 courts use a lenient standard at the initial stage to follow Congress’ intent in creating a different standard from rule 23. The Tenth Circuit has made this finding expressly. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d at 1106 (finding that Congress chose to authorize collective actions under a less-stringent standard than class actions under rule 23). Even if the case law does not strictly foreclose a more stringent standard when the parties have engaged in more discovery, bypassing the lenient review at the initial notice stage would circumvent Congress’ intent in creating § 216(b)’s more lenient certification mechanism. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d at 1105 (“Congress clearly chose not to have the Rule 23 standards apply to class actions under the ADEA, and instead adopted the ‘similarly situated’ standard. To now interpret this ‘similarly situated’ standard by simply incorporating the requirements of Rule 23 ... would effectively ignore Congress’ directive.”).
District courts within the Tenth Circuit have uniformly refused to bypass the lenient stage, even after significant discovery. See Smith v. Pizza Hut, Inc., 2012 WL 1414325 , *4 (D.Colo.2012) (Arguello, J.)(noting that no other courts within the Tenth Circuit have bypassed the lenient notice stage standard on account of discovery). “[CJourts within the Tenth Circuit have consistently declined invitations to proceed directly to the more rigorous second stage analysis.” See Smith v. Pizza Hut, Inc., 2012 WL 1414325 , *4. In Gieseke v. First Horizon Home Loan Corp., 408 F.Supp.2d 1164, 1166-67 (D.Kan.2006) (Murguia, J.), the court refused to bypass the initial notice stage even though the parties had taken multiple depositions and the defendant produced nearly 6,000 documents. Again, in Pack v. Investools, Inc., 2011 WL 3651135 , at *3 (D.Utah Aug. 2011) (Stewart, J.), the court declined to bypass the notice stage standard even though the defendant had provided over 8,874 documents and responded to all of the plaintiffs interrogatories and requests for admissions. 2011 WL 3651135 , at *3. Additionally, district courts have emphasized that “following both steps of Thiessen’s two-step approach results in the least risk of prejudice to both parties.” Smith v. Pizza Hut, Inc., 2012 WL 1414325 , *4. If the court bypassed the first step, some plaintiffs might not learn of the lawsuit at all. “Measured against this possible prejudice to Plaintiffs, delaying the second stage review risks little

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8774319. Public record. Not legal advice.