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holding that "the existence of some variations between potential claimants is not determinative of lack of similarity at the notice-stage."
Summary of this case from Zurlo v. J & J Air Conditioning, Inc.Opinion
CIVIL ACTION NO. 01-2680, SECTION "1" (2)
November 8, 2002
ORDER AND REASONS
Plaintiff, Kelly Marie Camp, was formerly an insurance claims representative employed by one of the defendants. She filed this action, individually and on behalf of those similarly situated, to recover unpaid overtime wages and bonuses from defendants under the Fair Labor Standards Act. 29 U.S.C. § 201 et seq. Camp also seeks a declaratory judgment that defendants violated the Fair Labor Standards Act by improperly classifying her and other claims representatives as administrative employees who are exempt from the overtime provisions of the Act. First Amended Complaint, Record Doc. No. 31. This matter was referred to the undersigned magistrate judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written consent of all parties. Record Doc. No. 45.
Pursuant to Section 216(b) of the Act and the Case Management Order entered by the district judge who previously presided over this case, Record Doc. No. 14, Camp moved to certify a collective class under the Act. Record Doc. No. 12. She received leave to file a supplemental memorandum in support of her motion. Record Doc. Nos. 26, 28. Plaintiff requested and received leave to file her supplemental memorandum under seal because it contains exhibits that have been designated as confidential pursuant to the protective order entered in this action. Record Doc. No. 16.
Defendants, The Progressive Corporation, Progressive Casualty Insurance Company, Progressive Classic Insurance Company, Progressive Halcyon Insurance Company, Progressive Northern Insurance Company, Progressive Northwestern Insurance Company, Progressive Security Insurance Company and Progressive Specialty Insurance Company (collectively "Progressive") opposed the motion by a written memorandum that was also filed under seal. Record Doc. No. 37.
The protective order allows the parties to file pleadings, motions and exhibits under seal without first obtaining the court's permission. Record Doc. No. 23, protective order, ¶ 6. The protective order is amended as part of the instant order.
Camp received leave to file a reply memorandum, Record Doc. No. 42, which was again filed under seal. Record Doc. No. 44. Progressive received leave to file a supplemental opposition memorandum. Record Doc. Nos. 60, 61.
The court conducted oral argument on the motion on September 24, 2002. Participating were Jonathan Herman, Edward Castaing, Jr., Edward Lilly and James Jacobs, representing plaintiff; and Ellis Murov and Gregory Mersol, representing defendants.
Having considered the record; the complaint, as amended; the submissions and arguments of the parties; and the applicable law, IT IS ORDERED that plaintiff's motion to certify a collective class is GRANTED, but only as follows, in that only "conditional certification" as discussed below is granted.
I. CONDITIONAL CERTIFICATION
Camp contends that Progressive's failure to pay her for overtime work (and the additional bonuses that would have accumulated had she received more wages) violated Section 207(a)(1) of the Fair Labor Standards Act, which requires an employer to pay its employees overtime compensation for working more than 40 hours per week. The Act provides in relevant part:
Except as otherwise provided in this section, no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.29 U.S.C. § 207(a)(1).
However, the Act exempts from the overtime provisions of Section 207(a)(1) "any employee employed in a bona fide executive, administrative, or professional capacity." Id. § 213(a)(1). Progressive argues that Camp and the other employees whom she seeks to represent in this action are exempt from Section 207(a)(1) because they are administrative employees. An employee is properly classified as administrative if her primary duty consists of either the performance of office or nonmanual work directly related to management policies or general business operations of the employer or the employer' s customers, . . . where the performance of such primary duty includes work requiring the exercise of discretion and independent judgment." 29 C.F.R. § 541.214(a).
Section 216(b) of the Fair Labor Standards Act grants employees a collective cause of action to recover overtime compensation and liquidated damages against an employer who violates Section 207.
An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.29 U.S.C. § 216(b) (emphasis added).
In the instant motion, Camp seeks to certify a Section 216(b) class consisting of "all current and former salaried employees of Progressive Insurance Company, located in the 50 States, who are/were employed as claims representatives or otherwise performed claims adjusting services consistent with the policies, procedures, scripts, and manuals promulgated by Progressive Insurance Company and who did not receive overtime pay." Record Doc. No. 12, Motion to Certify a Collective Class, at p. 2; Record Doc. No. 31, First Amended Complaint, ¶ 21. During the hearing on the motion, plaintiff's counsel stated that the time period of the proposed class is limited to three years before the filing of the instant complaint to the present.
"Progressive Insurance Company" is defined by plaintiff as consisting of all of the defendants.
The parties requested and the then-presiding district judge approved a two-step, conditional certification process for a collective action under Section 216(b). Record Doc. No. 14, Case Management Order at p. 2. That process has been approved by the Fifth Circuit in Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995).
Mooney was a collective action brought under the Age Discrimination in Employment Act, which incorporates Section 216(b) of the Fair Labor Standards Act. Id. (citing 29 U.S.C. § 626(b)). Thus, collective action cases brought under the Age Discrimination in Employment Act are persuasive when interpreting Section 216(b) of the Fair Labor Standards Act.
Under this procedure, the court first determines whether the named plaintiff is "similarly situated" to the proposed class members, as required by Section 16(b) of the Fair Labor Standards Act. Id. at 1212. "Similarly situated" is not defined in the Act. The cases that have interpreted this section
I employ this procedure with trepidation because I fear it may prove wasteful and inefficient. In my view, a more efficient approach would be the bifurcated process commonly used in class actions brought under Fed.R.Civ.P. 23, in which the parties engage in full discovery of the class issues before plaintiff moves for class certification, so that the court may make a single determination of the issue based upon a complete record. In the instant case, although the evidentiary record appears substantial, Camp may not have developed all relevant evidence because the burden to show that she is similarly situated is so lenient at the conditional certification stage and because she faces the time pressure of the statute of limitations for the rest of the class, which is not tolled by her filing of this action but is interrupted for each potential plaintiff only when he or she files a consent to opt in. 29 U.S.C. § 255(a), 256(b). Despite my procedural misgivings, I will not alter it at this late date because the parties jointly requested and are now heavily invested in it, the previously presiding district judge ordered it and the Fifth Circuit has authorized its use. I consider this procedure the law of this case, and I will follow it.
are remarkable in that they do not set out a definition of "similarly situated," but rather they define the requirement by virtue of the factors considered in the "similarly situated" analysis. In other words, this line of cases, by its nature, does not give a recognizable form to an ADEA representative class, but lends itself to ad hoc analysis on a case-by-case basis.Id. at 1213 (emphasis added). Thus,
the trial court approaches the "similarly situated" inquiry via a two-step analysis. The first determination is made at the so-called "notice stage." At the notice stage, the district court makes a decision — usually based only on the pleadings and any affidavits which have been submitted — whether notice of the action should be given to potential class members.
Because the court has minimal evidence, this determination is made using a fairly lenient standard. [FN8] and typically results in "conditional certification" of a representative class. If the district court "conditionally certifies" the class, putative class members are given notice and the opportunity to "opt-in." The action proceeds as a representative action throughout discovery.
[FN8] At the notice stage. courts appear to require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan infected by discrimination.Id. at 1213-14 n. 8 (quotations and citations omitted) (emphasis added).
Under this lenient, two-step process, if conditional certification is granted, the defendant later may file a motion for decertification after more extensive discovery.
The second determination is typically precipitated by a motion for "decertification" by the defendant usually filed after discovery is largely complete and the matter is ready for trial. At this stage, the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question. If the claimants are similarly situated, the district court allows the representative action to proceed to trial. If the claimants are not similarly situated, the district court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice. The class representatives — i.e. the original plaintiffs — proceed to trial on their individual claims.Id. at 1214.
The issue presented at this conditional certification stage is whether Camp is "similarly situated" to the class members whom she seeks to represent. Because the court's analysis is an ad hoc one, based on the facts of this particular case, other cases that have conditionally certified, declined to certify or decertified conditional classes are not extremely useful in determining whether she is "similarly situated" to other potential class members.
Some of the cases cited by Progressive in opposition to plaintiff's motion for conditional certification were either decided at the decertification stage or involved denials of motions to certify when extensive discovery had already been accomplished and the standard used for maintaining or granting certification was much stricter than the lenient standard employed at this conditional certification stage. E.g., Moriskey v. Public Serv. Elec. Gas Co., 111 F. Supp.2d 493 (D.N.J. 2000); Ray v. Motel 6 Operating. Ltd. Partnership, No. 3-95-828, 1996 WL 938231 (D. Minn. 1995); Brooks v. BellSouth Telecomms., Inc., 164 F.R.D. 561 (N.D. Ala. 1995); Ulvin v. Northwestern Nat'l Life Ins. Co., 141 F.R.D. 130 (D. Minn. 1991).
The cases in which conditional certification has been granted or upheld are clear that the "similarly situated" standard at this stage islenient, plaintiff's burden is not heavy, the evidence needed is minimal and the existence of some variations between potential claimants is not determinative of lack of similarity. E.g., Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1217-19 (11th Cir. 2001); Mooney, 54 F.3d at 1213-14; White v. Osmose. Inc., 204 F. Supp.2d 1309, 1313-14 (M.D. Ala. 2002); Harper v. Lovett's Buffett, 185 F.R.D. 358, 362-64 (M.D. Ala. 1999); Tucker v. Labor Leasing. Inc., 872 F. Supp. 941, 947-48 (M.D. Fla. 1994); Crain v. Helmerich Payne Int'l Drilling Co., No. 92-0043, 1992 WL 91946, at *2.3 (E.D. La. Apr. 16, 1992) (Feldman, J.);see also Bradford v. Bed. Bath Beyond, 184 F. Supp.2d 1342, 1347 (N.D. Ga. 2002) (refusing to decertify Section 216(b) class because "[p]laintiffs' job duties, while not identical, were very similar" and defendant's "store within a store" approach did not "result in many practical differences among the stores"); Moss v. Crawford Co., 201 F.R.D. 398, 400, 410 (W.D. Pa. 2000) (refusing to decertify Section 216(b) class of monitors, insurance adjusters and invoice reviewers despite defendant's arguments concerning differences in potential plaintiffs' job duties, geographic assignments and hourly billing rates).
Camp began working for Progressive as a non-exempt Claims Assistant in the New Orleans area. She became an exempt Claims Representative in early 1997 and became a Claims Representative II in February 1999. At the time her employment ceased in June 2001, her job title was Claims Specialist. Defendant's Exh. B, affidavit of Thomas N. Schmitt, Progressive's Human Resources Director of Claims, at p. 4.
Based on the depositions of some of Progressive's corporate managers, supplemented by post-deposition affidavits from those same managers, Progressive argues that the proposed class covers numerous different job titles held by claims representatives in 50 states with extremely numerous different pay grades and allegedly very different job duties. However, considering the "lenient standard" for conditional certification and the minimal evidence" necessary at this stage, I find that Camp is similarly situated to other claims representatives in all 50 states and that conditional certification is appropriate.
Camp has presented the bare minimum of evidence necessary to show that she is similarly situated to other potential claimants. She has presented no affidavits or deposition testimony from any class member, including herself, but relies exclusively on evidence discovered from Progressive and the fact allegations in her recently verified, First Amended Complaint. Needless to say, defendant's corporate representatives were unwilling to concede in their depositions that any claims representatives who had a different title than plaintiff or who worked in a different state, or even another part of the same state, performed the same duties, had the same job objectives or were paid the same salary. However, the legal standard is "similarly situated, " not identically situated, Hipp, 252 F.3d at 1217; Bradford, 184 F. Supp.2d at 1347; Moss, 201 F.R.D. at 409; and plaintiff's burden at this state of the proceedings is lenient. Variations in title, salary and geographic location are merely factors to be considered and are not dispositive.
Although she filed her First Amended Complaint in July 2002, Camp just recently requested and received leave to file her verification. Record Doc. Nos. 68, 69.
Fundamentally, "Claims Representatives adjust claims when claims are asserted by or against insureds under the policies" issued by Progressive. Defendant's Exh. A, affidavit of Brian Passell, Progressive's Claims President, at p. 1. Plaintiff alleges in her verified, First Amended Complaint that the claims adjuster position involves opening a claim file, contacting all relevant parties, taking statements from claimants and witnesses, investigating the claim and extinguishing all exposures. "These duties were the Plaintiffs' primary duties and that for which they were hired." Record Doc. No. 31, First Amended Complaint, ¶ 28.
Progressive's Job Description Library confirms that an Associate Claims Representative, a Claims Representative I, Claims Representative II, Claims Specialist, Senior Claims Representative and Senior Claims Specialist all perform the same objectives with the same fundamental responsibilities of gathering information, investigating a claim, evaluating the damages and bringing the claim to resolution. Plaintiff's Exh. I, Progressive's Job Description Library. These duties and objectives persist throughout the job descriptions, regardless whether higher level representatives have more experience, may specialize in particular types of claims and are paid more than lower level representatives.
Marsha J. Conaway, Progressive's Manager of Corporate Compensation, testified that the job duties of employees within each job title were considered similar, regardless of location, for purposes of classifying those employees as administrative and exempt under Section 213(a)(1) of the Fair Labor Standards Act. Plaintiff's Exh. G, Conaway deposition at pp. 47-51. Although each employee's salary takes into account his or her particular skills, experience and performance, each job title has a set salary range, adjusted for the cost of labor in each geographic region, that is determined by Conaway and her staff at the corporate level and disseminated to the regions. Id. at pp. 51-58. Schmitt, Progressive's Human Resources Director of Claims, also testified that it is "very possible" that the broad job objectives of all employees within a job title and a given state or from state to state could be similar. Plaintiff's Exh. F, Schmitt deposition at pp. 103-07. His subsequent affidavit, clarifying that each claims representative has individual job objectives, does not negate the existence of broadly based, nationwide job objectives.
Plaintiff alleges in her verified, First Amended Complaint that all claims adjusters are required to adhere to and follow numerous manuals, policies and procedures promulgated by Progressive's corporate management. Progressive has used during the relevant time period a nationwide, 60-page Claims Standards manual, which provides all regional offices with uniform, broad objectives, procedures and tools for investigating, evaluating and resolving claims. Regardless of local variations, this manual also supports a finding of similarities of job objectives and duties throughout the range of job titles and geographic locations of claims representatives.
Based on the foregoing evidence, and applying the low standard of proof imposed by the two-step procedure for collective action certification previously adopted in this case, IT IS ORDERED that plaintiff's motion is GRANTED and that a collective class under Section 216(b) isconditionally certified, consisting of all current and former salaried employees of the Progressive family of insurance companies ("Progressive Insurance Company"), located in the 50 States, who are or were employed as claims representatives or otherwise performed claims adjusting services consistent with the policies, procedures, scripts and manuals promulgated by Progressive Insurance Company and who did not receive overtime pay within the two years preceding the date of entry of the instant order or within the three years preceding the date of entry of the instant order if the violation was willful.
II. PLAINTIFF MAY GIVE NOTICE TO THE POTENTIAL CLASS
Counsel for the parties met with the court on September 30, 2002 to discuss a proposed form of notice, which they provided to the court to the extent that they could agree on it (copies attached for filing in the record). Defendant, of course, does not agree that a class should be certified or that notice should be given at all, but has participated in the process of drafting a notice at the court's request and only in the event conditional certification were granted. Counsel are commended for their efforts at negotiating and agreeing on the majority of the proposed notice.
The parties disagree about the time period for which notice should be issued. The Fair Labor Standards Act incorporates the statute of limitations of the Portal-to-Portal Act, which provides that potential plaintiffs have two years within which to file a civil action for unpaid overtime compensation. 29 U.S.C. § 255(a). If defendant's violations were willful, that time period is extended to three years. Id. Camp seeks to notify potential class members that they may join this lawsuit if they have claims extending back three years from the date of entry of this order, on the theory (not yet proved) that defendant's conduct was willful. Progressive contends that its violations, if any, were not willful and that the notice period should therefore be limited to two years.
Progressive has not provided the court with any authority that plaintiff must demonstrate willfulness at this early stage. If Progressive believes that the prior, limited Department of Labor determinations cited in its memoranda conclusively establish that plaintiff cannot meet her burden of proving willfulness, it can move for decertification or summary judgment on its statute of limitations defense. White, 204 F. Supp.2d at 1318 n. 9. At this early stage, the court will require that potential plaintiffs be provided with as much information and leeway to opt in as possible, within the strictures of the applicable law. Accordingly, the court will allow notice to be given to potential plaintiffs for claims of willful violations extending back three years from the date of entry of this order.
When a putative plaintiff opts in by filing a consent form, his action "commences" and interrupts the running of the statute of limitations. 29 U.S.C. § 256(b). A separate claim for a violation of the Fair Labor Standards Act accrues each time a non-exempt plaintiff receives a paycheck from defendant that does not include overtime pay.Redman v. U.S. West Bus. Res., Inc., 153 F.3d 691, 695 (8th Cir. 1998);Knight v. Columbus, 19 F.3d 579, 581 (11th Cir. 1994); Halferty v. Pulse Drug Co., 821 F.2d 261, 271 (5th Cir. 1987). Thus, any putative plaintiff who has not yet filed a consent form in this court is apparently barred from making a claim for any Fair Labor Standards Act violations that occurred more than two years (or three if the violation was willful) before today's date.
In the same vein of providing potential plaintiffs with as much information as possible to inform their choice whether to opt in to the class, the court approves inclusion in paragraph 2 of the draft notice of the "similarly situated" language and of the language proposed by Camp concerning any money due under defendant's "gainsharing" program. Because the court has certified a class consisting of claims "representatives, " that is the appropriate word to use in paragraph 3 of the notice, rather than the word "adjusters."
In paragraph 5, the sentence concerning possible liability for costs must be included. In paragraph 6, the sentence concerning the passage of time and the barring effect of the statute of limitations must be included. Paragraph 7 must be written in ordinary type, not in all capital letters. In the unnumbered paragraph on page 6 of the draft notice, the correct name and title of this court are "Joseph C. Wilkinson, Jr., United States Magistrate Judge."
Finally, the parties ask the court to set a deadline of between 60 and 120 days for plaintiffs to opt in to the class. Considering the upcoming holiday season, the court will set a deadline of 120 days from the date of entry of this order for plaintiffs to opt in to the collective action by filing their consent forms with this court.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that plaintiff's motion to certify a collective class is GRANTED and that a collective class is conditionally certified, consisting of all current and former salaried employees of the Progressive family of insurance companies ("Progressive Insurance Company"), located in the 50 States, who are or were employed as claims representatives or otherwise performed claims adjusting services consistent with the policies, procedures, scripts and manuals promulgated by Progressive Insurance Company and who did not receive overtime pay within the two years preceding the date of entry of the instant order or within the three years preceding the date of entry of the instant order if the violation was willful.
IT IS FURTHER ORDERED that Camp may notify potential plaintiffs using the form of notice approved by this court and that all plaintiffs must opt in by filing their consent forms with this court no later than 120 days from the date of entry of this order.
IT IS FURTHER ORDERED that the protective order entered in this action is MODIFIED so that all parties must seek leave of court before filing any pleading or document under seal. This court's record is presumptively a public record, and the Clerk of Court has limited storage space for maintaining documents under seal. Only truly confidential, proprietary, trade secret or other similar materials should be sealed in a public record. Thus, the court will not permit the wholesale filing under seal of pleadings, motion papers, depositions and exhibits that contain only limited amounts of truly confidential information. Counsel are instructed to try to "write around" confidential information in their memoranda and to request sealing only of those parts of memoranda and exhibits that are truly confidential.
EXHIBIT UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
KELLY MARIE CAMP, ET AL. CIVIL ACTION NO. 01-2680
VERSUS SECTION "I" JUDGE LANCE M. AFRICK
THE PROGRESSIVE CORPORATION, ET AL MAGISTRATE: 2 COMPANY MAG. JUDGE J. WILKINSON
PLAINTIFFS' PROPOSED NOTICE
TO: ALL PRESENT AND FORMER SALARIED EMPLOYEES OF THE PROGRESSIVE FAMILY OF INSURANCE COMPANIES ("PROGRESSIVE INSURANCE COMPANY"), LOCATED IN THE FIFTY STATES, WHO ARE/WERE EMPLOYED AS CLAIMS REPRESENTATIVES OR OTHERWISE PERFORMED CLAIMS ADJUSTING SERVICES CONSISTENT WITH THE POLICIES, PROCEDURES, SCRIPTS, AND MANUALS PROMULGATED BY PROGRESSIVE INSURANCE COMPANY, AT ANY TIME FROM OCTOBER 1, 1999 THROUGH THE PRESENT DATE.
RE: Fair Labor Standards Act Lawsuit Filed Against Progressive Insurance Company.
1. INTRODUCTION.
The purpose of this Notice is to inform you of the existence of a collective action lawsuit in which you potentially are "similarly situated" to the named Plaintiff, to advise you of how your rights may be affected by this suit, and to instruct you on the procedure for participating in this suit, should you decide that it is appropriate and should you choose to do so.
2. DESCRIPTION OF THE LAWSUIT.
On August 31, 2001, Kelly Marie Camp brought this lawsuit against the Progressive Insurance Company, on behalf of herself and all other past and present salaried claims adjusters of the Progressive Insurance Company, in the United States District Court for the Eastern District of Louisiana, alleging that she and they others similarly situated are owed unpaid overtime under the Fair Labor Standards Act, plus any money due under the "gainsharing" program had overtime been included as "eligible compensation."
The Plaintiff also alleges that Progressive Insurance Company willfully failed to properly compensate her and others similarly situated. Finally, the Plaintiff seeks an additional equal amount of overtime as liquidated damages, as well as prejudgment interest, attorneys' fees and costs. This lawsuit is currently in the early pretrial stage.
Progressive Insurance Company has denied Plaintiffs allegations and maintains that its claims representatives were properly compensated and maintains that it complied with the Fair Labor Standards Act. Progressive Insurance Company also maintains that it exercised good faith in its application of the Fair Labor Standards Act to its employees.
3. COMPOSITION OF THE CLASS.
The named plaintiff seeks to sue on behalf of herself and also on behalf of other salaried claims representatives with whom she is similarly situated. Specifically, the named Plaintiff seeks to sue on behalf of any and all salaried claims representatives who are or have been at any time within the past three (3) years employed at Progressive Insurance Company as a claims adjuster or otherwise perform claims adjusting services consistent with the policies, procedures, scripts, and manuals promulgated by Progressive Insurance Company within the past three (3) years. This action covers all claims adjusters employed by Progressive Insurance Company throughout the fifty States.
4. YOUR RIGHT TO PARTICIPATE IN THIS SUIT.
If you fit the definition above, you may join this suit (that is, you may "opt in") by mailing the "Consent to Become Party Plaintiff' form to Plaintiffs counsel at the following address:
Jonathan M. Herman, Esq. CRULL, CASTAING, LILLY HERMAN 601 Poydras Street, Suite 2323 Pan American Life Center New Orleans, LA 70130 (504) 581-7700 (504) 581-5523, facsimile www.progressiveovertimelawsuit.com
as soon as possible and in sufficient time to have Plaintiffs' counsel file it with the federal court on or before __________. If you fail to return the "Consent to Become Party Plaintiff' form to Plaintiffs' counsel in time for it to be filed with the federal court on or before the above deadline date, you may not be able to participate in this lawsuit.
If you file a "Consent to Become Party Plaintiff' form, your right to participate in this suit may depend upon a later decision by the District Court that you and the Plaintiffs are actually "similarly situated" in accordance with federal law.
5. EFFECT OF JOINING THIS SUIT.
If you choose to join in the suit, you will be bound by the Judgment, whether it is favorable or unfavorable. While this suit is proceeding, you may be required to respond to written questions, sit for depositions and/or testify in court.
The attorneys for the class plaintiffs are being paid on a contingency fee basis, which means that if there is no recovery, there will be no attorneys' fee. The putative class could (not would) be liable for costs if there is no recovery. If there is a recovery, the attorneys for the class will receive a part of any settlement obtained or money judgment entered in favor of all members of the class. By joining this lawsuit, you designate the class representative as your agent to make decisions on your behalf concerning the litigation, the method and manner of conducting this litigation, and all other matters pertaining to this lawsuit. These decisions and agreements made and entered into by the representative Plaintiff will be binding on you if you join this lawsuit.
6. NO LEGAL EFFECT IN NOT JOINING THIS SUIT.
If you choose not to join this suit, you will not be affected by any judgment or settlement rendered in this case, whether favorable or unfavorable to the class. If you choose not to join in this lawsuit, you are free to file your own lawsuit. However, because the passage of time may result in part of all your claim being barred by the applicable statute of limitations, if you wish to participate in this lawsuit, it is important that you sign, date, and mail the attached consent from as soon as possible, but in any event, NO LATER THAN _________, 2002.
7. NO RETALIATION PERMITTED.
FEDERAL LAW PROHIBITS PROGRESSIVE INSURANCE COMPANY FROM DISCHARGING YOU OR IN ANY OTHER MANNER DISCRIMINATING AGAINST YOU BECAUSE YOU HAVE EXERCISED YOUR RIGHTS UNDER THE FAIR LABOR STANDARDS ACT.
8. YOUR LEGAL REPRESENTATION IF YOU JOIN.
If you choose to join this suit, your interests will be represented by the named Plaintiff through her attorneys, as counsel for the class. Counsel for the class are:
Jonathan M. Herman, Esq. CRULL, CASTAING, LILLY HERMAN 601 Poydras Street, Suite 2323 Pan American Life Center New Orleans, LA 70130 (504) 581-7700
and
James M. Jacobs, Esq. MURPHY, ROGERS SLOSS 701 Poydras Street One Shell Square, Suite 400 New Orleans, LA 70139 (504) 523-0400
9. COUNSEL FOR PROGRESSIVE INSURANCE COMPANY.
The attorneys for Progressive Insurance Company are:
Ellis B. Murov, Esq. DEUTSCH, KERRIGAN STILES, L.L.P. 755 Magazine Street New Orleans, LA 70130
and
Gregory V. Mersol, Esq. BAKER HOSTETLER, L.L.P. 3200 National City Center 1900 East Ninth Street Cleveland, OH 44114-3485
10. FURTHER INFORMATION.
Further information about this Notice, the deadline for filing a "Consent to Become Party Plaintiff," or questions concerning this lawsuit may be obtained by writing or telephoning Plaintiffs' counsel at the number and address stated above. THIS NOTICE AND ITS CONTENTS HAVE BEEN AUTHORIZED BY THE UNITED STATES DISTRICT COURT, HONORABLE JOSEPH WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE. THE COURT HAS TAKEN NO POSITION IN THIS CASE REGARDING THE MERITS OF THE PLAINTIFF'S CLAIMS OR OF DEFENDANTS' DEFENSES.
CONSENT TO BECOME PARTY PLAINTIFF
By my signature below, I represent to the Court that I meet the definition contained in paragraph three (3) of the "Notice" describing "Composition of the Class," and I hereby authorize the filing and prosecution of the above-styled Fair Labor Standards Act action in my name and on my behalf by the above representative Plaintiff and designate the class representative as my agent to make decisions on my behalf concerning the litigation, the method and maimer of conducting this litigation, the entering of an agreement with Plaintiffs counsel concerning attorneys' fee and costs, and all other matters pertaining to this lawsuit.
I understand that, by filing this Consent, I will be bound by the Judgment of the Court on all issues in the case whether or not favorable to me.
Counsel Name, Address, and Signature (if applicable) ___________________________ _____________________________ SIGNATURE (Sign Your Name) ___________________________ _____________________________ (Print Name) ___________________________ _____________________________ (Street Address) ___________________________ _____________________________ (City, State, Zip) ___________________________ _____________________________ (Telephone Number)
PLEASE RETURN THIS FORM IN TIME FOR FILING WITH THE COURT BY ____________, TO:
Jonathan M. Herman
CRULL, CASTAING, LILLY HERMAN 601 Poydras Street, Suite 2323 Pan American Life Center New Orleans, LA 70130 (504) 581-5523
EXHIBIT UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
KELLY MARIE CAMP, ETC. CIVIL ACTIONVERSUS NO. 01-2680
THE PROGRESSIVE CORPORATION, ET AL SECTION "I" (2) COMPANY AFRICK/WILKINSON
DEFENDANTS' PROPOSED NOTICE
TO: ALL PRESENT AND FORMER SALARIED EMPLOYEES OF THE PROGRESSIVE FAMILY OF INSURANCE COMPANIES ("PROGRESSIVE INSURANCE COMPANY"), LOCATED IN THE FIFTY STATES, WHO ARE/WERE EMPLOYED AS CLAIMS REPRESENTATIVES OR OTHERWISE PERFORMED CLAIMS ADJUSTING SERVICES CONSISTENT WITH THE POLICIES, PROCEDURES, SCRIPTS, AND MANUALS PROMULGATED BY PROGRESSIVE INSURANCE COMPANY, WITHIN THE PAST THREE (3) YEARS.
RE: Fair Labor Standards Act Lawsuit Filed Against Progressive Insurance Company.
1. INTRODUCTION.
The purpose of this Notice is to inform you of the existence of a collective action lawsuit in which you potentially are "similarly situated" to the named Plaintiff, to advise you of how your rights may be affected by this suit, and to instruct you on the procedure for participating in this suit, should you decide that it is appropriate and should you choose to do so.
2. DESCRIPTION OF THE LAWSUIT.
On August 31, 2001, Kelly Marie Camp brought this lawsuit against the Progressive Insurance Company, on behalf of herself and all other past and present salaried claims adjusters of the Progressive Insurance Company, in the District Court for the Eastern District of Louisiana, alleging that she and they are owed unpaid overtime under the Fair Labor Standards Act.
The Plaintiff also alleges that Progressive Insurance Company willfully failed to properly compensate her and others. Finally, the Plaintiff seeks an additional equal amount of overtime as liquidated damages, as well as prejudgment interest, attorneys' fees and costs. This lawsuit is currently in the early pretrial stage.
Progressive Insurance Company has denied Plaintiffs allegations and maintains that its claims representatives were properly compensated and maintains that it complied with the Fair Labor Standards Act. Progressive Insurance Company also maintains that it exercised good faith in its application of the Fair Labor Standards Act to its employees.
3. COMPOSITION OF THE CLASS.
The named plaintiff seeks to sue on behalf of herself and also on behalf of other salaried claims adjusters with whom she is similarly situated. Specifically, the named Plaintiff seeks to sue on behalf of any and all salaried claims adjusters who are or have been at any time within the past three (3) years employed at Progressive Insurance Company as a claims adjuster or otherwise perform claims adjusting services consistent with the policies, procedures, scripts, and manuals promulgated by Progressive Insurance Company within the past three (3) years. This action covers all claims adjusters employed by Progressive Insurance Company throughout the fifty States.
4. YOUR RIGHT TO PARTICIPATE IN THIS SUIT.
If you fit the definition above, you may join this suit (that is, you may "opt in") by mailing the "Consent to Become Party Plaintiff' form to Plaintiffs counsel at the following address:
Jonathan M. Herman, Esq. CRULL, CASTAING, LILLY HERMAN 601 Poydras Street, Suite 2323 Pan American Life Center New Orleans, LA 70130 (504) 581-7700 (504) 581-5523, facsimile www.cclhlaw.com
as soon as possible and in sufficient time to have Plaintiffs' counsel file it with the federal court on or before __________. If you fail to return the "Consent to Become Party Plaintiff' form to Plaintiffs' counsel in time for it to be filed with the federal court on or before the above deadline date, you may not be able to participate in this lawsuit.
If you file a "Consent to Become Party Plaintiff' form, your right to participate in this suit may depend upon a later decision by the District Court that you and the Plaintiffs are actually "similarly situated" in accordance with federal law.
5. EFFECT OF JOINING THIS SUIT.
If you choose to join in the suit, you will be bound by the Judgment, whether it is favorable or unfavorable. While this suit is proceeding, you may be required to respond to written questions, sit for depositions and/or testify in court.
The attorneys for the class plaintiffs are being paid on a contingency fee basis, which means that if there is no recovery, there will be no attorneys' fee. The putative class could (not would) be liable for costs if there is no recovery. If there is a recovery, the attorneys for the class will receive a part of any settlement obtained or money judgment entered in favor of all members of the class. By joining this lawsuit, you designate the class representative as your agent to make decisions on your behalf concerning the litigation, the method and manner of conducting this litigation, and all other matters pertaining to this lawsuit. These decisions and agreements made and entered into by the representative Plaintiff will be binding on you if you join this lawsuit.
6. NO LEGAL EFFECT IN NOT JOINING THIS SUIT.
If you choose not to join this suit, you will not be affected by any judgment or settlement rendered in this case, whether favorable or unfavorable to the class. If you choose not to join in this lawsuit, you are free to file your own lawsuit.
7. NO RETALIATION PERMITTED.
Federal law prohibits Progressive Insurance Company from discharging you or in any other manner discriminating against you because you have exercised your rights under the Fair Labor Standards Act.
8. YOUR LEGAL REPRESENTATION IF YOU JOIN.
If you choose to join this suit, your interests will be represented by the named Plaintiff through her attorneys, as counsel for the class. Counsel for the class are:
Jonathan M. Herman, Esq. CRULL, CASTAING, LILLY HERMAN 601 Poydras Street, Suite 2323 Pan American Life Center New Orleans, LA 70130 (504) 581-7700
and
James M. Jacobs, Esq. MURPHY, ROGERS SLOSS 701 Poydras Street One Shell Square, Suite 400 New Orleans, LA 70139 (504) 523-0400
9. COUNSEL FOR PROGRESSIVE INSURANCE COMPANY.
The attorneys for Progressive Insurance Company are:
Ellis B. Murov, Esq. DEUTSCH, KERRIGAN STILES, L.L.P. 755 Magazine Street New Orleans, LA 70130
and
Gregory V. Mersol, Esq. BAKER HOSTETLER, L.L.P. 3200 National City Center 1900 East Ninth Street Cleveland, OH 44114-3485
10. FURTHER INFORMATION.
Further information about this Notice, the deadline for filing a "Consent to Become Party Plaintiff," or questions concerning this lawsuit may be obtained by writing or telephoning Plaintiffs' counsel at the number and address stated above.
THIS NOTICE AND ITS CONTENTS HAVE BEEN AUTHORIZED BY THE UNITED STATES DISTRICT COURT, HONORABLE JOSEPH J. WILKINSON, JR., UNITED STATES MAGISTRATE COURT JUDGE. THE COURT HAS TAKEN NO POSITION IN THIS CASE REGARDING THE MERITS OF THE PLAINTIFF'S CLAIMS OR OF DEFENDANTS' DEFENSES.
CONSENT TO BECOME PARTY PLAINTIFF
By my signature below, I represent to the Court that I meet the definition contained in paragraph three (3) of the "Notice" describing "Composition of the Class, " and I hereby authorize the filing and prosecution of the above-styled Fair Labor Standards Act action in my name and on my behalf by the above representative Plaintiff and designate the class representative as my agent to make decisions on my behalf concerning the litigation, the method and manner of conducting this litigation, the entering of an agreement with Plaintiffs counsel concerning attorneys' fee and costs, and all other matters pertaining to this lawsuit.
I understand that, by filing this Consent, I will be bound by the Judgment of the Court on all issues in the case whether or not favorable to me.
Counsel Name, Address, and Signature (if applicable)
_____________________________ ______________________________ SIGNATURE (Sign Your Name) _____________________________ ______________________________ (Print Name) _____________________________ ______________________________ (Street Address) _____________________________ ______________________________ (City, State, Zip) _____________________________ ______________________________ (Telephone Number)
PLEASE RETURN THIS FORM IN TIME FOR FILING WITH THE COURT BY
________, TO:
Jonathan M. Herman CRULL, CASTAING, LILLY HERMAN 601 Poydras Street, Suite 2323 Pan American Life Center New Orleans, LA 70130 (504) 581-5523