United States District Court, D. Connecticut
RULING AND ORDER ON PENDING MOTIONS
A. BOLDEN UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
Common Bonds Between and Among Inbound Specialists
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,
(“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.
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
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).
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.
Typical Work Schedules
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.”).
Policies and Practices that Allegedly Result in Inbound
Specialists Working Off-the-clock
Culpepper alleges four policies and practices that
individually or together result in Inbound Specialists
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
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.”).
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
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.”).
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
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.”).
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%.”).
Corporate Timekeeping Policy versus Local Timekeeping
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.
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.”)
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.”).
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.”).
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.”).
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.
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.
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.
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,  the first phase
of discovery closed.
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.
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.
STANDARD OF REVIEW
Conditional Certification under the Fair Labor Standards
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.
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
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. “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
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
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)).
Class Certification under Rule 23 of the Federal Rules of
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).
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 ...