Summary
allowing text message notice on the basis that text messaging has become a dominant and sometimes primary means of communication in modern society, and in order to further the "overarching goal of providing potential class members the opportunity to join the case"
Summary of this case from Cortez v. Casa Do Brasil, LLCOpinion
CIVIL ACTION NO. 3:19–CV–00322
2020-02-19
Travis DICKENSHEETS, Jr., et al., Plaintiffs. v. ARC MARINE, LLC, et al., Defendants.
Connor Throckmorton, Andrew S. Golub, Dow Golub Remels & Gilbreath, PLLC, Houston, TX, for Plaintiffs. Michael Arthur Correll, Modinat Abiodun Kotun, Reed Smith LLP, Dallas, TX, for Defendants.
Connor Throckmorton, Andrew S. Golub, Dow Golub Remels & Gilbreath, PLLC, Houston, TX, for Plaintiffs.
Michael Arthur Correll, Modinat Abiodun Kotun, Reed Smith LLP, Dallas, TX, for Defendants.
ORDER
ANDREW M. EDISON, UNITED STATES MAGISTRATE JUDGE
This is a purported collective action lawsuit, brought under the Fair Labor Standards Act ("FLSA"), contending that Defendants failed to pay overtime compensation for hours worked in excess of 40 hours per workweek. At a recent status conference, the parties asked me to resolve two issues that have arisen concerning the class notice to be distributed to potential class members: (1) whether Plaintiffs are permitted to send notice to potential class members by text message in addition to email and mail; and (2) whether Plaintiffs are permitted to send a "reminder notice" to any potential class members. I will address each issue separately.
1. NOTICE TO POTENTIAL CLASS MEMBERS BY TEXT MESSAGE IS PERMISSIBLE
District courts across the country are split as to whether a plaintiff should be permitted to send notice to potential class members in FLSA actions by text message in addition to other more traditional notice methods. See, e.g. , Caley DeGroote, Can You Hear Me Now? The Reasonableness of Sending Notice Through Text Messages and Its Potential Impact on Impoverished Communities , 23 Wash. & Lee J. Civil Rts. & Soc. Just. 279, 297–98 (2016) (discussing the split amongst federal district courts in allowing notice via text message) (collecting cases). Indeed, the district courts in the Fifth Circuit are also split on the issue. See Cervantez v. TDT Consulting, LLC , No. 3:18-CV-2547-S-BN, 2019 WL 3948355, at *10 (N.D. Tex. July 22, 2019) (allowing notice by text message); Goss v. Tyler Traditions, Inc. , No. 6:18-CV-423-JDK, 2019 WL 4935290, at *6 (E.D. Tex. July 22, 2019) (same); Lopez v. Bird Elec. Enters., LLC , No. MO:18-CV-0231-DC-RCG, 2019 WL 4087578, at *2 (W.D. Tex. June 28, 2019) (same); Qazi v. Stage Stores, Inc. , No. 4:18-CV-780, 2019 WL 2523564, at *3 (S.D. Tex. June 18, 2019) (same); Defrese-Reese v. Healthy Minds, Inc. , No. CV 18-1134, 2018 WL 6928920, at *4 (W.D. La. Dec. 19, 2018) ("Courts in the Fifth Circuit have approved the use of text message to facilitate notice to potential class members.") (collecting cases). But see Wingo v. Martin Transp., Inc. , No. 2:18-CV-00141-JRG, 2018 WL 6334312, at *10 (E.D. Tex. Dec. 5, 2018) (disallowing notice by text message).
In cases where courts have declined to allow notice via text message, the "courts have [typically] limited [text message] distribution [of the notice] to cases where there is evidence that text messaging is a form of communication previously used by the employer to communicate with its employees, or where there is high turnover in employees." Id. (internal quotation marks and citations omitted). I find such tests unnecessarily restrictive.
In Wade v. Furmanite America, Inc. , I considered whether notice should be sent to potential class members by email in addition to first-class mail. See No. 3:17-CV-00169, 2018 WL 2088011, at *6 (S.D. Tex. May 4, 2018). In analyzing the issue, I began by noting that "the purpose of notice is to inform potential class members of the lawsuit and provide them the opportunity to join the case, [and I] will encourage all efforts aimed at ensuring that potential plaintiffs discover that this action is pending." Id. at *7. After acknowledging that "millions of Americans rely on email as their primary method for communication," I ultimately allowed notice to be distributed by both email and first-class mail. I explained that "[u]tilizing two means of delivery—first-class mail and email—is more likely to result in potential plaintiffs receiving notice of the lawsuit than by a single delivery method." Id. I believe the same analysis is appropriate here.
The question for me in this case, therefore, is simple: Are potential plaintiffs more likely to receive notice of the lawsuit if Plaintiffs are permitted to deliver notice via text message in addition to email and mail? I think the answer to this question, without a doubt, is yes. As I noted in Wade , even mail and email—both stalwarts of effective communication—are at risk of being rendered obsolete by technological advances. See id. at 7–8. Indeed, federal courts have already begun to recognize that our "primary methods of communication have evolved" to include "text messages and phone calls to cellular telephones." M.A. by Ashear v. NRA Grp., LLC , No. 17-CV-7483 (NG)(RLM), 2019 WL 2357767, at *2 (E.D.N.Y. June 4, 2019). In light of this reality and the overarching goal of providing potential class members the opportunity to join the case, I find that providing notice via text message in addition to other traditional notice methods will almost always be appropriate in modern society. Thus, to further the remedial purposes of the FLSA, I will permit notice to be sent by text message in addition to mail and email.
2. A REMINDER NOTICE TO POTENTIAL CLASS MEMBERS IS PERMISSIBLE
Plaintiffs ask me to allow them to send potential class members notice of this lawsuit as well as a follow-up reminder notice a short time later. Stated simply, Plaintiffs' position is that a reminder notice furthers the broad remedial purpose of the FLSA by ensuring that potential plaintiffs are aware of their right to participate in this lawsuit. In opposing the issuance of a reminder notice, Defendants argue such notice is unnecessary. Defendants also assert that a reminder notice might give some recipients the impression that the Court approves of the merits of the Plaintiffs' claims and encourages participation in the lawsuit.
District courts in the state of Texas and across the country are split as to whether reminder notices to potential class members are proper in FLSA actions. See Jones v. Cretic Energy Servs., LLC , 149 F. Supp. 3d 761, 776 (S.D. Tex. 2015) (collecting cases). Those courts that permit reminder notices generally find that such a notice furthers the FLSA's express purpose to "inform as many potential plaintiffs as possible of the collective action and their right to opt-in." Morris v. Lettire Const. Corp. , 896 F. Supp. 2d 265, 275 (S.D.N. Y. 2012). See also Wingo , 2018 WL 6334312, *11 (finding that a reminder notice is a reasonable way to ensure that potential class members receive notice and, if they choose to do so, file a timely opt-in form); Page v. Crescent Directional Drilling, L.P. , No. 5:15-CV-193-RP, 2015 WL 12660425, at *4 (W.D. Tex. Dec. 10, 2015) (same). Those courts rejecting requests to send reminder notices repeat the same arguments advanced by Defendants here: such reminder notices are unnecessary under the circumstances of the case and pose a risk of unduly prejudicing plaintiffs by making it seem as if the Court believes the underlying claim is meritorious. See Hines v. Ironclad Energy, LLC , No. 5:19-CV-00155-OLG, 2019 WL 5027021, at *3 (W.D. Tex. Aug. 23, 2019) ("Plaintiffs have not demonstrated that a reminder notice is necessary to ensure sufficient notice to potential class members of their right to opt-in."); Roberts v. S.B. S. Welding, LLC , No. 3:14-cv-3617-B, 2015 WL 8773610, at *3 (N.D. Tex. Dec. 15, 2015) (finding that reminder notices would be unnecessary and could potentially be interpreted as an endorsement by the court to opt into the lawsuit).
This is the first time I have been asked to weigh-in on whether a reminder notice should be allowed. To me, the benefits to be gained by sending a reminder notice far outweigh any potential disadvantages. A reminder notice provides a second chance to potential plaintiffs who, for whatever reason, do not receive, open, or view the initial letter, email, or text message providing notice. A reminder notice also helps ensure that those potential plaintiffs, who read the original notice but forget about it in the hustle and bustle of daily life, are reminded at least once about their opportunity to join the lawsuit. Defendants' concern, that a reminder notice can give an inaccurate impression that the Court actively promotes participation in the collective action, can be easily solved. The class notice can simply include language expressly stating that the Court does not encourage or discourage participation in the case. As the United States Supreme Court has recognized, the purpose of class notice is to ensure that potential plaintiffs "receiv[e] accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate." Hoffmann-La Roche Inc. v. Sperling , 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). Accordingly, I find that a reminder notice is a reasonable way to see that potential class members receive notice of the action and have a chance to decide whether to participate in the case. I see no downside to a reminder notice as Defendants will not be unduly burdened or prejudiced.