Culpepper v. Bank of America

          RULING AND ORDER ON PENDING MOTIONS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         On February 16, 2017, Aileen Culpepper (“Plaintiff” or “Ms. Culpepper”) filed a class action Complaint against Bank of America, National Association (“Bank of America” or “Defendant”) under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. and Rule 23 of the Federal Rules of Civil Procedure, asserting violations of the Connecticut Minimum Wage Act, Conn Gen. Stat. § 31-58 et seq. Compl., ECF No. 1. Ms. Culpepper, an Inbound Specialist, or customer service agent, was responsible for answering customer calls at Bank of America's Farmington, Connecticut call center. Id. ¶¶ 1, 17, 25. She and other Inbound Specialists allege that the Farmington, Connecticut Bank of America call center had a policy or practice of failing to pay Inbound Specialists who reported to work early to perform necessary pre-shift work, such as reviewing policy updates and launching their computer systems. Id. ¶ 3.

         Several motions are now pending: (1) Plaintiff's motion for conditional certification of a collective action and for notice to be issued under Section 216(b) of the Fair Labor Standards Act, ECF No. 75; (2) Defendant's motion to strike the consent to join the FLSA collective action by Michael Weed, ECF No. 80; (3) Defendant's motion to deny Rule 23 class certification, ECF No. 81; (4) Plaintiffs' motion for class certification under Rule 23, ECF No. 91; (5) Defendant's motion to seal the Timekeeping Compliance Learning Guide, ECF No. 82; and (6) Plaintiff's motion to amend or correct the scheduling order, ECF No. 85.

         For the reasons set forth below, the Court GRANTS Plaintiff's motion for conditional certification under section 216(b) of FLSA, ECF No. 75; DENIES without prejudice to renewal Defendant's motion to strike Michael Weed's consent to join the FLSA collective action, ECF No. 80; DENIES without prejudice to renewal Defendant's motion to deny Rule 23 class certification and Plaintiff's motion for Rule 23 class certification, ECF Nos. 81 and 91; GRANTS Defendant's motion to seal the Timekeeping Compliance Learning Guide, ECF No. 82; and DENIES as moot Plaintiff's motion to amend or correct the scheduling order, ECF No. 85.

         Consistent with its inherent authority to manage this case, Dietz v. Bouldin, 136 S.Ct. 1885, 1892 (2016) (“. . . district courts have the inherent authority to manage their dockets and courtrooms with a view toward the efficient and expedient resolution of cases.”), the Court also establishes a schedule for the second phase of discovery and sets a deadline for a renewed motion for Rule 23 class certification and dispositive motions.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations

         This class action suit revolves around the policies and practices of a group of trainers and supervisors in a single room at a single call center in a small town in central Connecticut. In support of her motions for conditional certification under the FLSA and class certification under Rule 23, Ms. Culpepper focuses on four types of information: (1) the common bonds between and among Inbound Specialists; (2) the typical work schedules for Inbound Specialists; (3) the policies and practices that allegedly result in Inbound Specialists working off-the-clock; and (4) the corporate timekeeping policy, as opposed to the local timekeeping practice.

         1.

         The Common Bonds Between and Among Inbound Specialists

          All of the Inbound Specialists at the Farmington call center allegedly work in the same room on the first floor of the building. Deposition of Jayme Mosier (“Pl. Excerpted Supervisor Mosier Dep.”) (Feb. 28, 2018), ECF No. 75-6, at 9^[1] (“Q. Are [Inbound Specialists] all in the same room? A. Yes.”); Declaration of Andrea Morgan (“Morgan Decl.) (June 7, 2018), ECF No. 75-4 ¶ 26. They assist customers applying for home equity loans, explain Bank of America mortgage policies and procedures, and schedule home sale closings. Deposition of Donna Gladney (“Pl. Excerpted Gladney Dep.”) (July 6, 2017), ECF No. 75-2, at 8-10; see also Deposition of Garfield Brown (“Pl. Excerpted Supervisor Brown Dep.”) (July 6, 2017), ECF No. 75-3 at 7. According to Donna Gladney, the head supervisor, or Division Fulfillment Leader, who has been at the bank for more than thirty years, Inbound Specialists are “responsible for answering phone calls from clients who are in the process of a home equity application . . . . they're phone specialists who are on the phone. Other than for training, meetings, events, they are on the phone.” Pl. Excerpted Gladney Dep. at 8-9.

         There are three levels of Inbound Specialists: Level I, Level II, and Level III. Level I specialists handle incoming calls generally, Level II specialists serve as subject matter experts, and Level III specialists act as senior specialists responsible for addressing calls with dissatisfied customers (i.e., if a customer wishes “to speak with a supervisor”, he or she is allegedly transferred to a Level III specialist). Pl. Excerpted Gladney Dep. at 10-12. All three levels of specialists receive customer calls directly, though Level III specialists allegedly do not routinely receive direct customer calls. Id. at 12; Pl. Excerpted Supervisor Brown Dep. at 8 (“A III . . . . would wait for a phone call to come in from a I to offer assistance.”).

         Despite the different titles, Ms. Culpepper alleges that all three positions have similar job duties. See, e.g., Declaration of Davon Allen (“Allen Decl.) (Aug. 8, 2017) ¶ 3 (“I was an Inbound Specialist I from March 2016 through March 2017 and, since March 2017, have been an Inbound Specialist II. In these positions . . . my primary duties have involved answering customer phone calls and reviewing customer applications for home equity lines of credit.”); Declaration of Pamela Searles (“Searles Decl.”), ECF No. 79-12 ¶ 3 (“. . . I served as an Inbound Specialist I until April 2015 and as an Inbound Specialist II at all times thereafter. In these positions . . . my primary duties have involved answering customer phone calls and reviewing customer applications for home equity lines of credit.”); see also Deposition of Serena Greene (“Pl. Excerpted Supervisor Greene Dep.) (Feb. 27, 2018), ECF No. 75-11, at 3-5 (on similarities during her time as an Inbound Specialist II and III).

         Inbound Specialists are allegedly assembled into ten to fourteen-member teams, comprised of several Level I, II, and III specialists and led by a team leader. Pl. Excerpted Gladney Dep. at 12. During the time relevant to this lawsuit, team leaders were overseen by Donna Gladney. Id. at 3, 12. Ms. Gladney managed eight to ten team leaders. Id. at 4-5. Those team leaders oversaw the work of the hourly, non-exempt Inbound Specialists.^[2]

         2. Typical Work Schedules

         Inbound Specialists, allegedly full-time employees, typically work eight-and-a-half hour shifts to allow for eight hours of work and an unpaid half-hour lunch. Gladney Dep. at 19 (“Q. How many hours a day do Inbound Specialists work? A. They physically work -- they're there for an 8 and ½ hour day, with a 30 minute lunch. So they work eight hours a day.”). They typically work five days a week plus a half-day one Saturday or Sunday each month. Morgan Decl. ¶ 5 (“My schedule was usually 11:30 a.m. until 8:00 p.m., Monday through Friday. I also worked four hours on every third Saturday.”); Ericksen Decl. ¶ 6 (“Throughout my employment, my scheduled shift varied. At the beginning of my employment I worked from 10:00 a.m. until 6:30 p.m. Next, my scheduled shift was from 9:30 a.m. until 6:30 p.m. [Last . . .] I worked from 8:30 a.m. until 5:00 p.m. Bank of America also scheduled me to work Saturday shifts every few weeks during my employment.”).

         3. Policies and Practices that Allegedly Result in Inbound Specialists Working Off-the-clock

         Ms. Culpepper alleges four policies and practices that individually or together result in Inbound Specialists working off-the-clock.

         First, Inbound Specialists allegedly are expected to assist customers accurately, which requires knowledge of the bank's most recent mortgage equity policies. Updated policies allegedly are not available to Inbound Specialists at home. Morgan Decl. ¶ 19. Rather, Inbound Specialists allegedly have to read policy updates and bank e-mails at work, as former Inbound Specialist Andrea Morgan describes:

During the 10-15 minutes I spent booting up my systems, I also read and responded to emails from bank customers, mortgage handlers, and the bank itself. It was also common for Bank of America to update its policies regarding home equity loans. If that happened, I needed to review the updates so that I [could] accurately assist customers. I needed to read and answer emails and review updated policies before my shift started because as soon as I logged into the phone, I started receiving phone calls. I typically received my first phone call of the day within seconds, if not immediately after logging into my phone.

Morgan Decl. ¶ 16-18. See, Ericksen Decl. ¶ 19 (“While I was waiting for my systems to fully open, I routinely read and answered emails I received from the prior evening or early morning.”); See also, Pl. Excerpted Supervisor Brown Dep. at 7 (on how Inbound Specialists receive “[v]ery robust training” followed by additional professional development.).

         Second, Inbound Specialists allegedly are expected to assist callers personally, which requires access to each customer's loan application, information about the bank's various home equity lines of credit, contact information for other departments, and more. Pl. Excerpted Supervisor Greene Dep. at 6-7. This information allegedly is stored in more than a dozen computer programs and systems that Inbound Specialists must open up at the start of each shift. Pl. Excerpted Supervisor Greene Dep. at 9 (“Available computer software programs between February 16, 2014 and [June 26, 2017] include: Main Frame (ACAPS), Interact, Control Center, Online Status Tool (Host), Branch Look-Up, NBK Look-Up Tool, HELoan, Payment Calculator, Setting Expectations, Smart Lobby (BBA Tool), Sharepoint, Product & Policy Guide (PPG), IEX, Notary List, FileNet Workplace XT/Document Management Portal, Commit, and LS Property Information Exchange (PIE) . . . .” (internal quotations omitted)); Declaration of Sarena Salmeri (“Salmeri Decl.”) (July 10, 2017), ECF No. 75-10, at ¶ 11 (“Before I can log into the telephone system each morning, I need to log into my computer and boot up several computer systems, including but not limited to two ACAPS systems, Interact, Document Management Portal, Commit, AVS, IEX, PPG and Sharepoint.”).

         At times, the bank's computer systems allegedly run slowly, which allegedly increases the time needed to boot-up computer programs. Morgan Decl. ¶ 14-15 (“I needed to start booting up my computer 10-15 minutes early because the computer system was slow. It could even take 15-20 minutes to fully boot-up at times. At times, I was still in the process of fully opening my computer programs during my first call of the day, even though I logged in and started booting up 10-15 minutes earlier.”); Declaration of Jeff Dunphy (“Dunphy Decl.”) (May 25, 2018) ¶ 11 (“Throughout my employment I usually came into work 15-25 minutes before my scheduled start time. I usually came to work 15 to 25 minutes early because it took that long to boot-up all of the applications on my computer before my shift started. I recall there being approximately a dozen or more applications.”).

         Third, Inbound Specialists allegedly are expected to comply with finance regulations and provide high-quality customer service, both of which are reviewed by random quality control calls. Pl. Excerpted Gladney Dep. at 17 (“[Inbound Specialists] receive two or three quality reviews that are done by a separate team to review their call treatment, accuracy of information, and they receive an overall quality score for that . . . . In addition, they also receive a compliance review. So it could be an additional one to three calls that strictly review the compliance or regulatory components of a call.”). Inbound Specialists allegedly know that they can receive a quality control call at any time, including at the start of their shifts. Morgan Decl. ¶ 21-22 (“Bank of America can, and does, monitor our phone calls. Bank of America monitors these calls to amongst other things, grade our customer service quality. Bank of America monitors these calls randomly. This means that I could have my calls monitored at any time, including my first call of the day.”).

         Fourth, Bank of America allegedly disciplines Inbound Specialists for starting late (i.e., failing to “adhere”), keeping customers on hold for too long, or falling below the bank's performance metrics. Inbound Specialists allegedly must be ready to accept calls at their appointed start times, or they are subject to discipline. Pl. Excerpted Supervisor Brown Dep. at 11 (“Q. Now, what happens if an Inbound Specialist is not logged onto the phone system at their scheduled start time? A. If they're not? Q. If they're not logged into their schedule start time? A. They can be subject up to disciplinary actions. You know, they're expected to start work at the beginning of your scheduled time, so disciplinary actions potentially be taken.”); Sarena Salmeri (“Def. Excerpted Salmeri Dep.”) (Oct. 27, 2017) at 52 (“Q. Once all these programs are up and running, what is the next thing that you do? A. The next thing that I do is I log in to my phone at the specific time that my IEX says that I need to be logged in to the phone so I'm not late and affecting my adherence.”); Morgan Decl. ¶ 10 (“The instructors stressed to us that we needed to be on the phone and ready to answer calls at our start times.”); Ericksen Decl. ¶ 12 (“Our trainers emphasized to us that we needed to be prepared to respond to phone calls and accurately answer customer questions as soon as our shifts started.”).

         Inbound Specialists allegedly are allowed to place callers on hold, if they are not ready to take a call, but that practice is allegedly discouraged and allegedly negatively affects the call center's performance scores. Def. Excerpted Salmeri Dep. at 51 (Q. “Are you able to put a customer on hold while you open AVS and the program loads? A. No. Q. Why is that? A. Because it affects our customer delight. Q. Can you elaborate on that? A. Yes. For every time we put a client on hold, the clients have reported they get upset in terms of waiting to get their questions answered; so, therefore, it affects the client delight which lowers the scores for the whole call center.”); Def. Excerpted Culpepper Dep. at 23 (“Q. So, as long as you told the customer I am going to have you on hold for ten minutes, you were allowed to do that. A. Not for ten minutes. You were allowed to say two to three minutes . . . . Donna Gladney would say that in knowledge shares about . . . customer delight, which is what they called it, customer happiness. Q. And so were you told at the bank that leaving a customer on hold for longer than two to three minutes would just be too long? A. Yes.”).

         Bank of America's telephone system allegedly records the amount of time that Inbound Specialists spend taking customer calls, and Inbound Specialists are allegedly disciplined if they fail to speak with customers 70% of their scheduled time. Pl. Excerpted Gladney Dep. at 21. (“Time away from the phone, or ‘wrap and idle' time, must remain at 30% or less, or Inbound Specialists face consequences, including termination.”); id. at 7 (“Q. What is the wrap/idle metric? A. It is an allocated time that associates are given within their scheduled work hours to perform history text documentation after a call . . . . And that would be the wrap portion. Idle refers to personal time that they can take to perhaps use a rest room . . . .”); Supplemental Declaration of Matthew Ericksen (“Supp. Ericksen Decl.”), ECF No. 75-14 ¶¶ 7-8 (“We were required to have ‘wrap and idle' metrics of 30% or less, meaning that we could not spend anymore than 30% of our time performing ‘wrap and idle tasks.' My employment with Bank of America ended on August 7, 2017 when they terminated me for having poor ‘wrap and idle' metrics.”); Salmeri Decl. ¶ 18 (if Inbound Specialists “logged into the telephone system before booting up their computer systems, they would need to place their telephone systems on ‘Aux,' which would negatively affect their ‘Wrap and Idle' time.”); Declaration of Michelle Bertolino (“Bertolino Decl.) (June 1, 2018) ¶ 19 (“I have been disciplined for having my ‘Wrap and Idle' time exceed 30%.”).

         4. Corporate Timekeeping Policy versus Local Timekeeping Practice

          At Bank of America, overtime-eligible employees are supposed to be paid for all time worked. Bank of America, 2015 Timekeeping Compliance: Act Responsibly (Jan. 30, 2014), ECF No. 75-16 at 11 (“Bank of America is committed to ensuring its employees are paid accurately for all time worked.”). Bank of America, 2014 Timekeeping Compliance: Act Responsibly (Jan. 30, 2014), ECF No. 75-17 at 15-16 (“Managers are responsible for ensuring that employees are paid for all time worked.”). Ms. Culpepper alleges that the managers at the Farmington facility did not adhere to this corporate policy. Compl. ¶ 3.

         Ms. Culpepper alleges that Bank of America trainers, such as Serena Green and Jason Krukas, told new Inbound Specialists to arrive early to boot-up so that they would be ready to take calls at the start of their shifts. Morgan Decl. ¶¶ 9-11 (“the training instructors told me and all members of the training class to come into work before our scheduled start times . . . . so that we could boot-up our computer systems and ensure that we were ready to take calls as soon as our scheduled shift began.”); Dunphy Decl. ¶ 8 (“During my training, my instructors told me, and all members of the training class, to come into work before our scheduled start dates.”); Bertolino Decl. ¶ 8 (“They told me, and the rest of the training class, to ensure that we were ready to take calls as soon as our scheduled shift began.”); Salmeri Decl. ¶ 13, 15 (“. . . I usually sit down at my desk at least 10 to 15 minutes before the start of my shift in order to boot up my systems . . . . I was instructed during training by Serena Green, one of my trainers, and Jason Krukas, another trainer to boot up my computer systems before logging into the telephone system.”); Pl. Excerpted Supervisor Greene Dep. at 7 (“Q. And you're standing at the front of the room as the teacher? A. I am standing at the front of the room or the back of the room. There's also another - there is a co-facilitator in there as well . . . . Jason Krukas.”)

         Accordingly, Inbound Specialists allegedly arrive early to boot-up their systems. Dunphy Decl. ¶ 12-13 (“I came into work prior to my scheduled start time to boot-up my computer and open the computer programs. I did this because I was required to be ready to take customer calls as soon as I was logged into the phone system.”); Salmeri Decl. ¶¶ 13-14 (“. . . I usually sit down at my desk at least 10 to 15 minutes before the start of my shift in order to boot up my systems. This is true for all Inbound Specialists at the Farmington Call Center of whom I am aware.”); Bertolino Decl. ¶ (“I came into work before my scheduled start time on most, if not all, of the days I was scheduled to work.”).

         Ms. Culpepper alleges that team leaders knew that the Inbound Specialists were performing pre-shift work and not recording that time, and that team leaders did not correct the specialists' timesheets accordingly. Dunphy Decl. ¶¶ 16-17 (“Our supervisors were aware that Inbound Specialists were arriving early and performing work, but never told us to include that time on our time sheets. Our supervisors never corrected our time sheets to include the work performed before our shifts began . . . .”); Bertolino Decl. ¶¶ 14-15 (“Our supervisors were aware that Inbound Specialists were arriving early and performing work, but never told us to include that time on our time sheets. Our supervisors never corrected our time sheets to include the work we performed before our shifts began . . . .”). Ms. Culpepper claims that she tried to record her pre-shift work once and that her supervisor told her that that was not allowed. Def. Excerpted Culpepper Dep. at 28 (“Q. You knew . . . that the bank's policy was to pay for all hours worked, including any time you spent booting up computers. Right? A. Right. Q. Did you ever try to record that time? A. I think there was an instance where I reported the time very early on when I was new, and I think it was Ellen Ranco who said your time -- your time card has to exactly match what your schedule is.”).

         Ms. Culpepper also alleges that supervisors were focused on Inbound Specialists' over-reporting-not under-reporting-of time worked. Pl. Excerpted Supervisor Brown Dep. at 9-10 (“If the associate is sick or left early, there is another part to the Timekeeping Tool which would allow them to . . . choose whatever that particular situation is. So if it's unpaid time, if it's bereavement, vacation time, sick time, that will automatically pre-fill the eight hours. So once an associate has completed the time card they would then submit it to their supervisor for review and approval . . . . I'll review the time to make sure that it's correct. I may also look on the [telephone] login system on CMS to make sure, you know, that the two correspond with one another.”); Pl. Excerpted Gladney Dep. at 16 (“Q. What if a time is not approved by the Team Leader? A. There would be discussion with the associates if there was thought to be a discrepancy on the time that was entered and submitted. Q. What sort of discrepancy would result in time not being approved? A. If an associate had a scheduled vacation day and entered that time as hours worked versus vacation. Q. What else? A. Sick time. If the associate came in late to work and advised their Team Leader that they were late, but yet did not accurately enter that time, there would be discussion. Q. Anything else? A. Not that comes to mind for me, no.”).

         B. Procedural Background

         On February 16, 2017, Ms. Culpepper filed her Complaint and sought to represent a class of: “All current and former employees of Defendant who were employed as Inbound Specialists in Connecticut at any time after February 16, 2014 through the date of final judgment in this action.” Compl. ¶ 12.

         On April 20, 2017, the parties submitted a joint case management plan. Joint Report of the Rule 26(f) Planning Meeting, ECF No. 23; Fed.R.Civ.P. 26(f). In that report, Bank of America “request[ed] that the Court schedule the case in two phases, beginning first with discovery on Plaintiff's individual claims and whether class or collective treatment is appropriate.” Id. at 4.

         Bank of America suggested that the first phase of discovery should conclude near the end of September 2017. Id. On April 28, 2017, the Court issued a scheduling order that reflected Bank of America's request and set the deadline for the first phase of discovery as October 6, 2017. Scheduling Order, ECF No. 30.

         The Court did not set a deadline for a Rule 23 class certification motion, id., and noted “that the filing of motions for class certification or collective action may require modifications to this schedule and to the scope of discovery, ” id. After several motions to modify the scheduling order, ECF Nos. 36, 43, 60, a motion to compel log-in data, ECF No. 76, and a motion to withdraw the motion to compel, ECF No. 86, ^[3] the first phase of discovery closed.

         On June 15, 2018. Plaintiff filed a motion for conditional certification of an FLSA collective action. ECF No. 75. On July 13, 2018, Defendant filed its opposition to conditional certification, ECF No. 79, and a motion to strike Michael Weed's consent to join the FLSA collective action, ECF No. 80. On July 27, 2018, Plaintiff replied to Defendant's opposition to class certification. ECF No. 87. On August 3, 2018, Plaintiff opposed Defendant's motion to strike Michael Weed's consent. ECF No. 80.

         On July 13, 2018, Defendant filed a motion to deny certification under Federal Rule of Civil Procedure 23. ECF No. 81. On August 3, 2018, Plaintiff opposed that motion. ECF No. 89. On August 17, 2018, Plaintiff moved for Rule 23 class certification. ECF No. 91. That same day, Defendant replied to Plaintiff's response to its motion to deny Rule 23 class certification. ECF No. 93. On September 6, 2018, Defendant responded to Plaintiff's motion for Rule 23 class certification. ECF No. 97. On September 20, 2018, Plaintiff replied to Defendant's response. ECF No. 98.

         II. STANDARD OF REVIEW

         A. Conditional Certification under the Fair Labor Standards Act

         In 1938, Congress enacted the Fair Labor Standards Act (“FLSA”) to “eliminate” “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” 29 U.S.C. § 202 (a-b). “In furtherance of this goal, the FLSA imposes numerous ‘wage and hour' requirements, including an overtime provision mandating employers to pay non-exempt employees time-and-a-half for each hour worked in excess of 40 hours per week.” Lassen v. Hoyt Livery Inc., No. 3:13-CV-01529 JAM, 2014 WL 4638860, at *3 (D. Conn. Sept. 17, 2014). Section 216(b) of the Act creates a private cause of action for FLSA violations for individual employees or collectives of “similarly situated” employees. 29 U.S.C. § 216(b); Lassen, 2014 WL 4638860, at *3.

         The Second Circuit has adopted a two-step approach to FLSA conditional certification. Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir. 2010) (“Although they are not required to do so by FLSA, district courts have discretion, in appropriate cases, to implement [§ 216(b)] by facilitating notice to potential plaintiffs of the pendency of the action and of their opportunity to opt-in as represented plaintiffs. In determining whether to exercise this discretion in an ‘appropriate case[ ],' the district courts of this Circuit appear to have coalesced around a two-step method, a method which, while again not required by the terms of FLSA or the Supreme Court's cases, we think is sensible.” (internal citations omitted)).

         “The first step involves the court making an initial determination to send notice to potential opt-in plaintiffs who may be ‘similarly situated' to the named plaintiffs with respect to whether a FLSA violation has occurred.” Id. at 555.^[4] “The court may send this notice after plaintiffs 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.'” Id., quoting Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y. 1997) (“Plaintiffs have amply satisfied this burden. They have made substantial allegations, both in their Complaint and supporting affidavits, that Sbarro's restaurant managers were subject to reductions in their compensation as result of a uniform company-wide policy requiring them to reimburse defendant for cash shortages and other losses.”).

         Some courts adopt a modest-plus, or heightened, review standard once some discovery has been completed. See, Korenblum v. Citigroup, Inc., 195 F.Supp.3d 475, 480-81 (S.D.N.Y. 2016) (“Where, as here, a conditional certification motion is made after some, but not all, discovery has occurred, it remains an open question whether some kind of ‘intermediate scrutiny' should apply . . . . there is less consensus within the Circuit than might appear at first blush.”). The Second Circuit, however, has yet to adopt a modest-plus or intermediate scrutiny standard. See Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 540 (2d Cir. 2016) (“We certified for immediate review the question of whether a higher standard, urged by defendants, applies to motions to conditionally certify an FLSA collective made after discovery. We do not need to decide that question, however, because . . . we cannot, on the record before us, conclude that the plaintiffs in Antalik's proposed collective are similarly situated, even under the minimal pre-discovery standard.”).

         Thus, while a court will review the evidence produced through pre-certification discovery carefully, the “modest factual showing” standard still governs that review. “The modest factual showing cannot be satisfied simply by unsupported assertions, 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, 624 F.3d at 555. Then, “[a]t the second stage, the district court will, on a fuller record, determine whether a so-called collective action may go forward by determining whether the plaintiffs who have opted in are in fact similarly situated to the named plaintiffs. The action may be de-certified if the record reveals that they are not, and the opt-in plaintiffs' claims may be dismissed without prejudice.” Id. (internal quotations and citations omitted)).

         B. Class Certification under Rule 23 of the Federal Rules of Civil Procedure

          Under Rule 23 of the Federal Rules of Civil Procedure, a class action may proceed under Rule 23(a) 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).

         If a court finds that a class action may proceed under Rule 23(a), the class action may be maintained only if one of the three provisions of Rule 23(b) is met:

(1) prosecuting separate actions by or against individual class members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or

(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair ...