United States District Court, D. Connecticut
ANTHONY BARONE, on behalf of, Himself and all others Similarly situated Plaintiff,
LAZ PARKING LTD, LLC, Defendant.
RULING DENYING DEFENDANT'S MOTION TO LIMIT
A. RICHARDSON UNITED STATES MAGISTRATE JUDGE.
plaintiffs brought this action for unpaid wages under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201 et seq. In June of 2018, the plaintiffs
filed a motion for conditional certification. (Dkt. #49).
After the parties fully briefed the issue, the Honorable
Vanessa L. Bryant granted the motion for conditional
certification, on June 28, 2019. The defendant now seeks an
order excluding any individuals who have signed arbitration
agreements from receiving notice of the conditionally
certified collective. (Dkt. #79). The plaintiffs oppose the
motion. Based on the briefs and the controlling law, the
defendant's motion is DENIED.
Timeliness and Waiver
argue that the motion to exclude the individuals who signed
arbitration agreements from receiving notice raises an issue
that could have and should have been raised while the parties
were arguing over conditional certification. As a result, the
plaintiffs argue that the defendant has waived the issue. The
plaintiffs also argue that the motion is an improper and
untimely motion for reconsideration. In response, the
defendant argues that the “Court never addressed the
arbitration issue. In other words, there is nothing for this
Court to reconsider.” (Dkt. #82, at 16). The defendant
also argues that there is no procedural rule that required
the defendant to raise the arbitration agreements in its
opposition to the motion for conditional certification. (Dkt.
#82, at 15).
of relevant background, the plaintiffs filed their motion for
conditional certification in June of 2018. In connection with
the motion, the parties filed a total of six briefs, focusing
primarily on whether the plaintiffs are “similarly
situated.” (Dkt. #50, 51, 52, 54, 55 and 57). On
February 11, 2019, this Court issued a ruling which granted
the motion for conditional certification. (Dkt. #58).
March 5, 2019, the defendant objected to the ruling and
requested review by the Honorable Vanessa L. Bryant. (Dkt.
#62). Thereafter, both parties submitted briefs. (Dkt.
#64-66). On June 28, 2019, the Honorable Vanessa L. Bryant
overruled the defendant's objection and granted
conditional certification of the FLSA class. (Dkt. #70).
August 9, 2019, the defendant filed a motion to exclude any
individuals who signed arbitration agreements from receiving
notice of the conditionally certified collective. (Dkt. #79).
In its motion, the defendant relies on In re: JPMorgan Chase
& Co., 916 F.3d 494 (5th Cir. 2019), in which the Fifth
Circuit Court of Appeals excluded employees who signed
arbitration agreements from receiving notice of the
conditionally certified collective. Id. at 497.
Although JPMorgan was decided before the defendant briefed
its objection to the Court's ruling (Dkt. #62), neither
party mentioned JPMorgan or the arbitration agreements in
their briefs. (Dkt. #64, 65 and 66). Thus, the arbitration
issue was never before the court. As a result, the Court
concludes that the pending motion is not a motion for
next question is whether the defendant was required to raise
the arbitration agreements while opposing the motion for
conditional certification. The issue raised in JPMorgan is
not new. As the defendant states in its brief, the reasoning
of JP Morgan is not new. This Court need not look past
Hoffman-La Roche[v. Sperling, 493 U.S. 165 (1989)]
to come to the same conclusion as the Fifth Circuit did in
(Dkt. #79 at 9). The plaintiff argues that this statement is
an acknowledgement by the defendant that it could have and
should have raised the arbitration agreements earlier, such
that the failure to do so constitutes a waiver of the issue.
(Dkt. #80, 9-10). The Court concludes that the defendant was
not required to raise the arbitration agreements earlier.
Indeed, many of the cases cited by the plaintiffs hold that
the determination of whether an arbitration agreement is
enforceable is best left for step two of the certification
process, as opposed to step one. (Dkt. #80, at 11-13). Since
the defendant did not waive its right to raise the
arbitration agreements, the Court will address the merits of
reasons discussed below, the Court DENIES
the motion to exclude the individuals who have signed
arbitration agreements from receiving notice. However,
nothing in this ruling will prohibit the defendant from
raising the issue in a motion to compel arbitration or at the
second stage of the certification process.
Potential exclusion of individuals who signed arbitration
agreements at the conditional certification stage
defendant asks the Court to exclude any individuals who
signed arbitration agreements from receiving notice of the
collective action. In making its argument, the defendant
relies on the Fifth Circuit's decision in In re: JPMorgan
Chase & Co., 916 F.3d 494 (5th Cir. 2019).
JPMorgan, the district court granted a motion for conditional
class certification in an FLSA case. Thereafter, the
defendant sought a writ of mandamus to direct the court to
exclude any employees who signed arbitration agreements from
receiving notice. The Fifth Circuit excluded such individuals
from receiving notice. Id. at 497 (“we hold
that district courts may not send notice to an employee with
a valid arbitration agreement unless the record shows that
nothing in the agreement would prohibit that employee from
participating in the collective action.”)(Emphasis
LAZ Parking notes that the Fifth Circuit's decision
“is the first circuit court decision to interpret the
text of the FLSA and Hoffman-LaRoche in the context of
whether those with arbitration agreements should receive
notice.” (Dkt. #79, at 12). The defendant argues that
if the court allows individuals who signed arbitration
agreements to receive notice of the collective action, the
court would be treating their arbitration “agreements
as presumptively unenforceable.” (Dkt. #79, at 5). The
defendant argues that by seeking to provide notice to the
individuals who signed arbitration agreements, the plaintiffs
are attempting to “stir up litigation and unjustifiably
double the size of the collective” even though the
Supreme Court supposedly prohibited such tactics in
Hoffman-La Roche v. Sperling, 493 U.S. 165 (1989).
(Dkt. #79, at 6). Since the defendant repeats this argument
multiple times, (Dkt. #79, at 5, 6 and 14), it should be
noted that the majority opinion in Hoffman-La Roche did not
actually raise the concern about stirring up
litigation. The concern was raised by the dissenting
opinion. In any event, courts have generally rejected the
notion that sending notice to individuals with arbitration
agreements stirs up litigation. Garcia v. Chipotle
Mexican Grill, Inc., No. 16 Civ. 601 (ER), 2019 WL
358503, at *3-4 (S.D.N.Y. Jan. 29, 2019).
largely on cases that pre-date JPMorgan, the plaintiffs argue
that courts within the Second Circuit have consistently
refused to exclude plaintiffs from receiving notice simply
because they have signed arbitration agreements. See
Gathmann-Landini v. Lululemon USA, Inc., No.
15-cv-6867, 2018 WL 3848922, at *1 n.2 (E.D.N.Y. Aug. 13,
2018); Castillo v. Perfume Worldwide Inc., No.
17-cv-2972 (JS)(AKT), 2018 WL 1581975, at *12 (E.D.N.Y. Mar.
30, 2018); Varghese v. JP Morgan Chase & Co.,
No. 14-cv-1718 (PGG), 2016 WL 4718413, at *8-9 (S.D.N.Y.
Sept. 9, 2016); Morales v. Rochdale Village, Inc.,
15 CV 502 (RJD)(RML), 2016 WL 11190525, at *6 (E.D.N.Y. Aug.
15, 2016); Racey v. Jay-Jay Cabaret, Inc., No.
15-cv-8228 (KPF), 2016 WL 3020933, at *5 (S.D.N.Y. May 23,
2016); Guzman v. Three Amigos SJL Inc., 117
F.Supp.3d 516, 526 (S.D.N.Y. 2015)(since the defendants had
not moved to compel arbitration for any of the named
plaintiffs, the court found that the “validity of the
arbitration clause defense is speculative at this
stage.”); Romero v. La Revise Assocs., L.L.C.,
968 F.Supp.2d 639, 647 (S.D.N.Y. 2013)(“case law makes
clear that this sort of merits-based determination should not
take place at the first stage of the conditional collective
action approval process.”); Hernandez v. Immortal
Rise, Inc., No. 11-cv-4360 (RRM)(LB), 2012 WL 4369746,
at *5 (E.D.N.Y. Sept. 24, 2012); D'Antuono v. C &
G of Groton, Inc., No. 3:11-cv-33 (MRK), 2011 WL 5878045
(D. Conn. Nov. 23, 2011).
Court agrees with the plaintiffs that the weight of authority
within the Second Circuit militates against adopting the
Fifth Circuit's approach. As the court observed in
Gathmann-Landini, 2018 WL 3848922, at *1 n.2 (E.D.N.Y. Aug.
13, 2018), “[c]ourts in this circuit have consistently
moved forward with the first step of FLSA collective actions
to determine if plaintiffs are similarly situated, without
regard to arbitration agreements made by the
defendant relies upon Lanqing Lin v. Everyday Beauty
Amore, Inc., No. 18-cv-729 (BMC), 2018 WL 6492741
(E.D.N.Y. Dec. 10, 2018), a 2018 case within the Second
Circuit in which a district court decided to exclude
plaintiffs who had signed arbitration agreements. In Lanqing
Lin, the plaintiffs argued that “employees cannot waive
their FLSA rights by contract” and that the question of
whether the arbitration agreements are valid and enforceable
should be determined at the second step of the certification
process. Id. at *4. The court stated
[a]lthough plaintiffs are technically correct that the first
step considers only whether other employees are similarly
situated as to the existence and application of a common
practice or policy - as compared to their ability to recover
on the merits or their means to do so - this nuance cannot
save them here. Indeed, every case plaintiffs cite in support
of this position predates Sutherland [v. Ernst & Young