United States District Court, D. Maine
TIMOTHY NOLL, individually and on behalf of all similarly situated individuals, Plaintiffs,
FLOWERS FOODS, INC., LEPAGE BAKERIES PARK STREET LLC, and CK SALES CO., LLC, Defendants.
ORDER ON MOTION FOR CONDITIONAL CERTIFICATION AND
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
Fair Labor Standards Act and Maine wage and hour law case,
the named plaintiff alleges that the Defendants misclassified
their bakery distributor drivers as independent contractors
thereby denying them the rights and benefits of employment,
including overtime wages.
December 3, 2015, Timothy Noll filed a class and collective
action complaint against Flowers Foods, Inc. (Flowers Foods),
LePage Bakeries Park Street LLC (LePage Bakeries), and CK
Sales Co., LLC (CK Sales). Class & Collective Action
Compl. (ECF No. 1).
April 18, 2016, Mr. Noll filed the instant motion for
conditional certification of a class and court-supervised
notice for his claim under the Fair Labor Standards Act
(FLSA), 29 U.S.C. §§ 201 et seq. Pl.'s Mot.
for Conditional Certification & Court-
Supervised Notice of Pending Collective Action & Req.
for Oral Arg. (ECF No. 46). Mr. Noll also requested oral
argument on the issue; the Court granted his request for oral
argument on July 15, 2016 to be scheduled at the mutual
convenience of the parties and the Court. Id.;
Order (ECF No. 66).
the Defendants opposed the motion for conditional
certification. Defs.' Opp'n to Pl.'s Mot. for
Conditional Certification (ECF No. 59). Mr. Noll replied
on July 8, 2016. Reply Mem. in Supp. of Pl.'s Mot.
for Conditional Certification & Judicial Notice (ECF
No. 65). On November 15, 2016, Mr. Noll filed a notice of
supplemental authority regarding orders granting conditional
certification in two related cases: Opinion &
Order, Neff v. Flowers Foods, Inc., No.
5:15-cv-00254 (D. Vt. Nov. 7, 2016), ECF No. 56 and Coyle
v. Flowers Foods Inc., No. CV-15-01372-PHX-DLR, 2016 WL
4529872 (D. Ariz. Aug. 30, 2016). Notice of Suppl.
Authority Regarding Pl.'s Mot. for Conditional
Certification (ECF No. 69).
January 19, 2017, after the Court attempted to schedule the
oral argument, the parties notified the Court that they had
reached an agreement. Specifically, the Defendants agreed to
withdraw their Objection to Motion for Conditional
Certification (ECF No. 59) on the condition that the
Defendants will have thirty days from the Court's
granting of the motion to provide contact information for the
Distributors and that the contact information will be limited
to names, addresses, email addresses, and telephone numbers.
The Defendants reserved the right to file a motion for
decertification following discovery.
Court accepts the parties' agreement and therefore
authorizes the conditional certification of the class for the
FLSA claim and court-supervised notice, as requested by Mr.
Noll in his motion, subject to the Defendants' condition
regarding the Distributors' contact information.
under the guidance provided in Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165 (1989), the Court conducted its
own review of the proposed notice, consent, and reminder
forms to ensure that they are not an endorsement of any
action and that they are fair and factual in all respects.
See generally Id. at 174 (“In exercising the
discretionary authority to oversee the notice-giving process,
courts must be scrupulous to respect judicial neutrality. To
that end, trial courts must take care to avoid even the
appearance of judicial endorsement of the merits of the
action”). Based on this review, the Court concludes
that the phrase “A Federal District Court authorized
this notice” could suggest judicial endorsement of the
action. See Curtis v. Scholarship Storage Inc., No.
2:14-cv-303-NT, 2015 WL 1241365, at *6 (D. Me. Mar. 18,
2015). Therefore, Mr. Noll shall substitute the phrase
“A Federal District Court authorized this notice”
for the phrase “A Federal District Court approved the
sending of this notice” on pages one and four of the
proposed notice. Subject to this change, the notice, consent,
and reminder forms are appropriate and shall be distributed
in accordance with Mr. Noll's requests.
the Court GRANTS Mr. Noll's Motion for Conditional
Certification and Court-Supervised Notice (ECF No. 46). The
Court generally adopts Mr. Noll's view of the definition
of the putative class as set forth in the Plaintiff's
motion: “All persons who are or have performed work as
Distributors for Flowers Foods, Inc., LePage Bakeries Park
Street LLC, and/or CK Sales Co., LLC in the state of Maine
under a Distributor Agreement or a similar written contract
that they entered into during the period commencing three
years prior to the date of the filing of the Complaint in
this case or December 3, 2012 and continuing through the
close of the Court-determined opt-in period.” The Court
approves Mr. Noll's proposed notice, consent, and
reminder forms, subject to the modifications discussed above,
and AUTHORIZES Mr. Noll to circulate the notice and consent
form to all potential class members and to send the reminder
notices forty-five (45) and seventy-five (75) days after the
first notice is mailed.
Court makes the following additional ORDERS:
Defendants shall deliver to Mr. Noll a computer readable data
file containing information relating to all Distributors who
worked for the Defendants since December 3, 2012 within
thirty (30) days from the date of this Order. This
information shall include ...