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Eric Wynn, Rochelle Edwards, and Tisha Mar Callo v. Express

February 6, 2012


The opinion of the court was delivered by: James F. Holderman, Chief Judge:


Plaintiffs are three former employees of Express, LLC, a clothing retailer that operates 573 stores in the United States. Plaintiffs have filed a motion (Dkt. No. 46, 54) for conditional certification of a collective action under 29 U.S.C. § 216(b) for Express's alleged violation of the Fair Labor Standards Act ("FLSA") resulting from Express's failure to pay Express employees for time spent delivering the stores' bank deposits after the employees clocked out each night. For the reasons stated below, Plaintiff's motion is granted in part and taken under advisement in part.


Prior to October 15, 2010, the 573 Express stores in the United States were subject to the following policy:

Stores with a bank depository in the mall may make their deposit at night. A few stores have to make deposits at locations which are a short drive from the mall. These deposits should only be made in the morning, never at night.

For all deposits, at least two people must be present. . . .

Even if your drop is in the mall, at least two associates . . . must walk to the depository with the deposit discretely concealed in an Express poly bag. (Dkt. No. 46, Ex. 6.) On October 2, 2010, Express sent notice to all of its stores that the policy was changing, effective October 15, 2012, to require all bank deposits to be made in the morning, rather than allowing some to be made at night. (Dkt. No. 83, Ex. 17 ¶ 3;Dkt. No. 46, Ex. 7.) The plaintiffs are three former Express employees who were required to make bank deposits at night after they had already clocked out. (Dkt. No. 46, at 2.)


The FLSA provides that "[a]n action to recover the liability prescribed in [the FLSA] may be maintained . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). To become a member of an FLSA collective action, a prospective plaintiff need only opt-in by consenting in writing and filing the consent in the court in which the action is pending. Id. A person who does not consent is not part of the FLSA collective action. Gambo v. Lucent Techs., Inc., No. 05 C 3701, 2005 WL 3542485, at *3 (N.D. Ill. Dec. 22, 2005).

In Hoffmann-La Roche Inc. v. Sperling, the Supreme Court held that district courts have discretion to implement the collective action provisions of 29 U.S.C. § 216(b) "by facilitating notice to potential plaintiffs." 493 U.S. 165, 169 (1989). Thus, "[a]lthough a plaintiff in an FLSA collective action is not required to seek leave of the court prior to issuing notice of the lawsuit to prospective members," Anyere v. Wells Fargo, Co.,No. 09 C 2769, 2010 WL 1542180, at *1 (N.D. Ill. Apr. 12, 2010), a court presiding over such a case may choose in its discretion to certify a collective action and order that notice be sent to potential plaintiffs. Under the law, before a court may send such notice, the plaintiffs seeking collective relief bear the burden of showing that the potential claimants are in fact "similarly situated" as required by the FLSA. Id. To do so the plaintiffs must make "'a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.'" Id. (quoting Flores v. Lifeway Foods, Inc., 289 F. Supp. 2d 1042, 1045 (N.D. Ill. 2003)). The required showing is less stringent than that required to certify a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure. Bontempo v. Metro Networks Commc'n, No. 01 C 8969, 2002 WL 1925911, at *1 (N.D. Ill. May 3, 2002). If the plaintiffs succeed in making the requisite showing, a court may conditionally certify the action and send notice to the potential collective action plaintiffs. Flores, 289 F. Supp. 2d at 1045. After discovery and the opt-in process is complete, the presiding court may reevaluate the conditional certification, typically on a motion by the defendant, "to determine whether there is sufficient similarity between the named and opt-in plaintiffs to allow the matter to proceed to trial on a collective basis." Jirak v. Abbott Labs., Inc., 566 F. Supp. 2d 845, 848 (N.D. Ill. 2008) (citation and quotation marks omitted). At this second step, "the Court must consider: (1) whether the plaintiffs share similar or disparate employment settings; (2) whether affirmative defenses raised by the defendant would have to be individually applied to each plaintiff; and (3) any fairness and procedural concerns." Id.


I. Conditional Certification

As an initial matter, in this case, Express contends that the court should evaluate the plaintiffs' conditional certification motion under a heightened "intermediate" standard, because "more stringent review may be applied on a motion for conditional certification where substantial discovery already has taken place." DeMarco v. Nw. Mem'l Healthcare, No. 10 C 397, 2011 WL 3510905, at *2 (N.D. Ill. Aug. 10, 2011). The parties commenced discovery at the beginning of August 2011, and had the benefit of about five months of discovery before this motion was fully briefed. During that time, the plaintiffs conducted eight depositions, served thirteen interrogatories, and submitted thirty-one document requests. (Dkt. No. 86, at 2.) According to the parties' Form 52, the completed discovery was "targeted to the facts and issues raised by Plaintiffs' pending Rule 216(b) Motion for Conditional Collective Action Certification." (Dkt. No. 25 ("Form 52 Planning Report") ¶ 3; see also id. ¶ 4(c)). It was not focused to obtain information about the additional issues that are relevant at the second step. Therefore, additional discovery will likely be necessary to address the unique issues raised at the second step of the certification process, making heightened review now inappropriate. Moreover, Express submitted eight affidavits from individuals whom the plaintiffs have not yet deposed, providing ...

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