The Fund Class Action - Motion For Certification

Case3:06-cv-07776-SC Document28 Filed05/18/07 Page1 of 23
1 David A. Lowe (State Bar #178811)

John T. Mullan (State Bar # 221149)
2 RUDY, EXELROD & ZIEFF, L.L.P.
351 California Street, Suite 700
3
San Francisco, CA 94104
4 Telephone: (415) 434-9800
Facsimile: (415) 434-0513
5 Email: dal@reztlaw.com
Email: jtm@reztlaw.com
6
Attorneys for Plaintiffs
7
8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA
10 SAN FRANCISCO DIVISION
11
RUDY, EXELROD & ZIEFF, LLP.
12 RICHARD PRENTICE, CHRISTIAN Case No. C-06-7776 SC

351 CALIFORNIA STREET, SUITE 700
MILLER, and TIFFINEY

SAN FRANCISCO, CA 94104
13 PETHERBRIDGE, on their own behalf and

on behalf of classes of those similarly
situated,
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14 NOTICE OF MOTION AND MOTION

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FOR CONDITIONAL COLLECTIVE

15 Plaintiffs, ACTION CERTIFICATION,
vs. HOFFMANN-LA ROCHE NOTICE,
16 AND EQUITABLE TOLLING;
17 FUND FOR PUBLIC INTEREST MEMORANDUM OF POINTS AND
RESEARCH, INC., AUTHORITIES IN SUPPORT
18 THEREOF
Defendants.
19
Date: July 13, 2007
20 Time: 10:00 a.m.
21 Court: 1
Judge: Hon. Samuel Conti
22
23 /
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PLAINTIFFS’ MOTION FOR CONDITIONAL
28 CERTIFICATION, NOTICE; AND EQUITABLE TOLLING
POINTS AND AUTHORITIES -CASE NO. C-06-7776 SC
1 NOTICE OF MOTION AND MOTION
2 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

3 NOTICE IS HEREBY GIVEN that on July 13, 2007, at 10:00 a.m., or as soon thereafter
4 as the matter may be heard, in Courtroom 1 of the Northern District of California, San Francisco
5 Division, located on the 17th Floor of 450 Golden Gate Ave., San Francisco, California,
6 Plaintiffs Richard Prentice, Christian Miller & Tiffiney Petherbridge (“Plaintiffs”), on behalf of
7 themselves and all others similarly situated, will move as follows, pursuant to the Fair Labor
8 Standards Act (“FLSA”), 29 U.S.C. §201 et seq., and Hoffmann-La Roche Inc. v. Sperling, 493
9 U.S. 165 (1989):
10 (1) Conditional certification: That the Court conditionally certify this action as an
11 FLSA collective action;
12
(2) Mailing of notice: That the Court authorize the mailing of notice of the pendency
13 of this action to prospective FLSA collective action members, defined as all past,
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present, and future employees of Defendant Fund for Public Interest Research,
15 Inc. who have been or will be classified as “Canvassers” or “Field Managers”
16 (collectively, “Covered Positions”), at any time between the earliest date covered
17 by the first pay date falling after December 19, 2003 and the filing date of the
18 Order granting this motion (collectively, “Covered Employees”);
19 (3) Form of notice: That the Court approve the proposed notice of this action and the
20 proposed consent to join form, attached to the [Proposed] Order Granting
21 Plaintiffs’ Motion for Conditional Collective Action Certification, Hoffmann-La
22 Roche Notice, and Equitable Tolling Notice as Exhibits A and B respectively;
23 (4) Contact information: That the Court order Defendant Fund for Public Interest
24 Research, Inc. to produce to Plaintiffs’ counsel the names, addresses and
25 telephone numbers of all Covered Employees; and that such information be
26 provided in Microsoft Excel format to Plaintiffs’ counsel 10 days after the date of
27
1 PLAINTIFFS’ MOTION FOR CONDITIONAL
1 the Court’s order granting Plaintiffs’ Motion for purposes of sending notice;
2 (5) Time period: That the Court order that all Covered Employees shall have 120
3 days from the date of the mailing of notice to mail their consents to join to
4 Plaintiffs’ counsel, and that Plaintiffs’ counsel shall have thirty (30) days after that
5 date to file written consents to join with the Court (without prejudice to Plaintiffs’
6 right to request that notice, and an opportunity to opt in, be provided at a later date
7 to individuals who become employed in Covered Positions after the filing date of
8 the Court’s order granting Plaintiffs’ Motion); and,
9 (6) Equitable tolling: That the Court equitably toll the statute of limitations for all
10 Covered Employees from the date of the filing of the Complaint (December 19,
11 2006) through the date the Court sets as the deadline for consents to join to be
12 filed with the Court.

13
This motion is supported by Plaintiffs’ Memorandum of Points and Authorities, the
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Declarations of David A. Lowe, John T. Mullan, Richard Prentice, Christian Miller, Tiffiney
15
Petherbridge, Michael Oehler, Lauren Steely, and Sarah Stein, and exhibits attached thereto; the
16
[Proposed] Order Granting Plaintiffs’ Motion for Conditional FLSA Class Certification and
17
Approval of Hoffmann-La Roche Notice and exhibits attached thereto (Notice and Consent to
18
Join form) filed herewith; the other records, pleadings, and papers filed in this action; and upon
19
such other documentary and oral evidence or argument as may be presented to the Court at the
20
hearing of this motion.
21
22
23
24
25
26
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1 TABLE OF CONTENTS
2
I. INTRODUCTION....................................................................................................1
3
II. BACKGROUND......................................................................................................3
4
5 A. Claims and Background .......................................................................................... 3
6 1. Fund for Public Interest Research, Inc. ....................................................... 4
7 2. All Canvassing Staff Have the Same Primary Job Duty ............................. 5
8 3. Fund Has Treated All Canvassing Staff as a Class for Purposes of

Denying Them Overtime Pay...................................................................... 6
9
III. DISCUSSION ..........................................................................................................6
10
A. The Court Should Grant Conditional Certification and Order Notice to the
11 Class ........................................................................................................................ 6
12
1. The Court Has Broad Discretion to Conditionally Certify a Class

13 and Facilitate Notice.................................................................................... 6

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14 2. The Standard for Granting Conditional Certification and Class

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Notice is Very Lenient ................................................................................ 8

15
3. Notice is Appropriate Because Plaintiffs are “Similarly Situated” to
16 Other Canvassing Staff.............................................................................. 10
17 B. Scope of the Class ................................................................................................. 13

18 C. The Court Should Order and Approve Class Notice ............................................. 13
19 D. Plaintiffs’ Proposed Form of Notice Should be Approved ................................... 14
20
E. The Statute of Limitations Should Be Equitably Tolled ....................................... 14
21
IV. CONCLUSION ......................................................................................................16
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26
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i PLAINTIFFS’ MOTION FOR CONDITIONAL
1 TABLE OF AUTHORITIES
2
Page(s)
3
4 Adams v. Inter-Con Security System, Inc., No.

C 06-05428 MHP, 2007 WL. 1089694 (N.D. Cal. Apr. 11, 2007) ..................... 7, 8, 13, 14
5
Agdipa v. Grant Joint Union High Sch. District,
6 No. Civ. S-06-1365 DFL DAD, 2007 WL. 1106099 (E.D. Cal. Apr. 10, 2007) ................ 8
7
Aguayo v. Oldenkamp Trucking,
8 No. CV-F-04-6279 AWI LJO, 2005 WL 2436477 (E.D. Cal. Oct. 3, 2005) ...................... 9
9 Allen v. Marshall Field & Co.,

93 F.R.D. 438 (N.D. Ill. 1982) ............................................................................................ 9
10
11 Avila v. Turlock Irrigation Dist.,

No. 1:06-CV-00050 OWW SMS,
12 2006 WL 3201083 (E.D. Cal. Nov. 6, 2006) ...................................................................... 9

13 Baldozier v. America Family Mutual Insurance Co.,

375 F. Supp. 2d 1089 (D. Colo. 2005) ........................................................................ 14, 15
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15 Ballaris v. Wacker,
No. 00-1627, 2001 WL. 1335809 (D. Or. Aug. 24, 2001) .................................................. 9
16
Beauperthuy v. 24 Hour Fitness USA, Inc.,
17 No. 06-0715 SC, 2007 WL 707475 (N.D. Cal. Mar. 6, 2007) ...................................passim
18 Bonilla v. Las Vegas Cigar Co.,
19 61 F. Supp. 2d 1129 (D. Nev. 1999) ................................................................................. 10
20 Bothell v. Phase Metrics,

299 F.3d 1120 (9th Cir. 2002) ............................................................................................. 4
21
Brown v. Money Tree Mortgage, Inc.,
22
222 F.R.D. 676 (D. Kan. 2004) ........................................................................................... 9
23
Camper v. Home Quality Management, Inc.,
24 200 F.R.D. 516 (D. Md. 2000) ............................................................................................ 9
25 Chao v. A-One Medical Services,

346 F.3d 908 (9th Cir. 2003) ............................................................................................. 13
26
27
ii PLAINTIFFS’ MOTION FOR CONDITIONAL
1 Coan v. Nightingale Home Healthcare, Inc.,

No. 1:05-CV-0101-DFH-TAB,
2 2005 WL. 1799454 (S.D. Ind. Jun. 29, 2005) ..................................................................... 9
3
Crawford v. Lexington-Fayette Urban County Government,
4 No. 06-299-JBC, 2007 WL. 293865 (E.D. Ky. Jan. 26, 2007) ........................................... 9
5 Edwards v. City of Long Beach,

467 F. Supp. 2d 986 (C.D. Cal. 2006)..................................................................... 1, 2, 7, 9
6
Gerlach v. Wells Fargo & Co.,
7
No. C 05-0585 CW, 2006 WL. 824652 (N.D. Cal. Mar. 28, 2006).................. 8, 11, 12, 14
8
Henchy v. City of Absecon,
9 148 F. Supp. 2d 435 (D.N.J. 2001).................................................................................... 15
10 Hoffmann-La Roche Inc. v. Sperling,
11 493 U.S. 165 (1989) ...................................................................................................passim
12 Kane v. Gage Merchandising Services,

138 F. Supp. 2d 212 (D. Mass. 2001)................................................................................ 12

13
Klem v. County of Santa Clara,
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No. C-91-20674 RMW (PVT),

15 1996 WL 438801 (N.D. Cal. Apr. 1, 1996)................................................................. 13, 14
16 Morden v. T-Mobile USA, Inc., No.

C05-2112R S. & M.,
17 2006 U.S. Dist. LEXIS 68696 (W.D. Wash. Sep. 12, 2006) ............................. 1, 9, 10, 12
18 Owens v. Bethlehem Mines Corp.,
19 630 F. Supp. 309 (S.D. W. Va. 1986) ................................................................... 14, 15, 16
20 Partlow v. Jewish Orphans' Home of Southern Cal., Inc.,

645 F.2d 757 (9th Cir. 1981) ....................................................................................... 14, 15
21
Randle v. City of New Albany,
22
No. 3:05CV74, 2006 WL 2085387 (N.D. Miss. Jul. 25, 2006) ........................................ 15
23
Reab v. Electronic Arts, Inc.,
24 214 F.R.D. 623 (D. Colo. 2002) .......................................................................................... 9
25 Romero v. Producers Dairy Foods, Inc.,

235 F.R.D. 474 (E.D. Cal. 2006)......................................................................................... 9
26
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iii PLAINTIFFS’ MOTION FOR CONDITIONAL
1 Shaffer v. Farm Fresh, Inc.,

966 F.2d 142 (4th Cir. 1992) ............................................................................................... 1
2
Stanfield v. First NLC Finance Services, LLC,
3
No. C 06-3892 SBA, 2006 WL 3190527 (N.D. Cal. Nov. 1, 2006) ................................... 9
4
Thiessen v. General Electric Capital Corp.,
5 267 F.3d 1095 (10th Cir. 2001) ................................................................................. 7, 8, 10
6 White v. MPW Industrial Services, Inc.,
236 F.R.D. 363 (E.D. Tenn. 2006) ...................................................................................... 9
7
8 Williams v. Sprint/United Management Co.,

222 F.R.D. 483 (D. Kan. 2004) ........................................................................................... 9
9
Zhao v. Benihana,
10 No. 01 Civ. 1297 (KMW), 2001 WL. 845000 (S.D.N.Y. July 5, 2001) ............................. 9
11
STATUTES, RULES AND REGULATIONS
12
29 U.S.C. §201 et seq ...........................................................................................................passim

13 29 U.S.C. §203(k)........................................................................................................................ 11
29 U.S.C. §§207 ............................................................................................................................ 1
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29 U.S.C. §216(b).......................................................................................................... 1, 7, 12, 16

15 29 U.S.C. §§255 ............................................................................................................................ 2
29 U.S.C. §255(a).................................................................................................................. 12, 13
16 29 U.S.C. §256(b).................................................................................................................... 2, 14
17
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iv PLAINTIFFS’ MOTION FOR CONDITIONAL
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 This is a proposed class action for unpaid overtime wages and liquidated damages under
4 the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§201 et seq. Plaintiffs Richard Prentice,
5 Christian Miller & Tiffiney Petherbridge (“Named Plaintiffs”) seek to represent a class of
6 Canvassers and Field Managers (“Canvassing Staff”) employed by Defendant the Fund for Public
7 Interest Research, Inc. (“Fund”), all of whom have been categorically misclassified by Fund as
8 “exempt” from overtime pay and denied overtime wages on that basis.
9 This motion is brought to protect the interests of the potential class members by providing
10 them with notice of this FLSA case and equitably tolling their FLSA claims for unpaid overtime
11 (which have not been not tolled simply by the filing of the complaint). Absent such notice and
12
tolling, potential class members’ FLSA rights will be prejudiced, the FLSA’s remedial purposes
13 frustrated, and judicial economies lost.

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There is no other way to protect these important interests at this time: Plaintiffs do not
15 know potential class members’ identities, and Defendant has refused Plaintiffs’ requests to
16 provide this information or stipulate to tolling the statute of limitations on the potential class
17 members FLSA claims. As discussed below, the standard for granting the instant motion at an
18 early stage of the litigation is “lenient” and easily satisfied by Plaintiffs.
19 The FLSA mandates overtime pay for employees and expressly authorizes class (or
20 “collective”) actions to vindicate this right where the employees at issue are “similarly situated.”
21 29 U.S.C. §§207, 216(b). Because class members must affirmatively “opt in” to a FLSA
22 collective action, the Supreme Court has held that named plaintiffs in FLSA class actions may
23 have a court-approved notice sent to all “similarly situated” individuals with potential claims
24 informing them of the lawsuit and providing them with an opportunity to opt in.1 Hoffmann-La
25
1
Hoffmann-La Roche was an Age Discrimination in Employment Act case but applies
26 equally to FLSA actions. See, e.g., Shaffer v. Farm Fresh, Inc., 966 F.2d 142, 147 n. 5 (4th Cir.
1992); Edwards v. City of Long Beach, 467 F. Supp.2d 986, 989-90 (C.D. Cal. 2006); Morden v. T-
27
1 Roche Inc. v. Sperling, 493 U.S. 165, 172-74 (1989). This notice procedure recognizes the
2 congressional policy favoring FLSA class actions, the benefits to the judicial system of such
3 actions, the need for employees to receive accurate and timely notice, and the benefits of early
4 judicial intervention and management. Hoffmann-La Roche Inc., 493 U.S. at 169-73. Moreover,
5 notice is critical to protect employees’ FLSA rights because, absent tolling, the statute of
6 limitations will continue to run on their claims until they opt in. 29 U.S.C. §§255, 256(b).
7 Following Hoffmann-La Roche, courts make an initial determination whether there are
8 “similarly situated employees” so as to warrant “conditional” class certification and class notice.
9 The standard for this determination is “lenient” and “typically results in conditional
10 certification.” Edwards v. City of Long Beach, 467 F. Supp.2d 986, 989-90 (C.D. Cal. 2006)
11 (internal quotes omitted); Beauperthuy v. 24 Hour Fitness USA, Inc., No. 06-0715 SC, 2007 WL
12 707475, *5 (N.D. Cal. Mar. 6, 2007) (plaintiff bears “very light burden”). This lenient standard
13 is particularly apt here, where class members are losing claims to the statute of limitations on an
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14 ongoing basis under the status quo.

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15 Plaintiffs easily meet their “very light burden” here. The central issue in the case is
16 whether the primary job duty of Canvassing Staff brings them within any of the narrow
17 exemptions from the FLSA’s overtime pay provisions, discussed below. Plaintiffs’ allegations,
18 declarations and pre-discovery evidence show that all Canvassing Staff have had the same
19 primary job duty of collecting signatures and soliciting donations for third-party non-profit and
20 advocacy groups. Also, Fund classifies all Canvassing Staff as exempt on a categorical, class-
21 wide basis, and denies all Canvassing Staff overtime pay under the same common plan. In its
22 Answer, Fund reaffirms the treatment of potential class members as being similarly situated. See
23 Answer, p.9 (affirmative defense that all potential class members are exempt). Indeed, Fund
24
25
Mobile USA, Inc., No. C05-2112RSM, 2006 U.S. Dist. Lexis 68696, *1 n.1 (W.D. Wash. Sep. 12,
26 2006).
27
1 alleges that its categorical classification of Canvassing Staff as exempt has been “reasonable” and
2 “in good faith,” id. p.10, further reaffirming that these employees are similarly situated for
3 purposes of the exemption issue. Based on this threshold, pre-discovery showing that there are
4 similarly situated employees, the Court should order conditional certification and class notice.
5 In addition, the Court should grant Plaintiffs’ request for equitable tolling of the statute of
6 limitations. Potential class members, through no fault of their own, and due to Defendant’s
7 refusal to agree to notice, have been prevented from learning of this action and/or the need to
8 affirmatively opt-in in order to be included.
9 Plaintiffs sought to avoid the need for this motion by asking Defendant for the names and
10 addresses of potential class members so Plaintiffs could notify them about the action and their
11 ability to opt in by filing consents to sue. Defendant denied the request. Declaration of David A.
12 Lowe, (“Lowe Dec.”), ¶¶5, 6. As an alternative means to avoid the motion, Plaintiffs asked
13 Defendant to stipulate to conditional certification and sending of notice and to toll the statute of
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14 limitations. Defendant rejected these requests as well. Id. at ¶¶3, 6. Defendant’s refusal to
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15 identify the potential class members, stipulate to the sending of notice or toll the statute of
16 limitations has left Plaintiffs with no alternative but to file the instant motion.
17 II. BACKGROUND
18 A. Claims and Background
19 The Named Plaintiffs were employed by Defendant Fund for Public Interest Research as
20 Canvassing Staff for some period of time within the FLSA statutory period.2 Declaration of
21 Christian Miller (“Miller Dec.”), ¶2; Declaration of Richard Prentice (“Prentice Dec.”), ¶2;
22 Declaration of Tiffiney Petherbridge (“Petherbridge Dec.”), ¶2. Plaintiffs allege that, under a
23 common plan and practice, Fund has misclassified Plaintiffs and thousands of other Canvassing
24 Staff who have performed substantially the same work as categorically “exempt” from the
25
2
The statute of limitations is three years or two years, depending on whether the
26 employer’s violations are willful. Id. §255(a).
27
1 FLSA’s overtime-pay requirements, and, on that basis, has failed to pay them overtime wages for
2 their overtime hours. Plaintiffs’ Class and Collective Action Complaint (“Complaint”), ¶¶1-3,
3 14, 17, 21-23. Plaintiffs seeks to recover unpaid overtime wages and liquidated damages on their
4 own behalf, and also on behalf of a class of all other Fund Canvassers and Field Managers (and
5 employees holding predecessor or successor job titles for the same positions).3
6 Defendant alleges as affirmative defenses that Plaintiffs are exempt under the “outside
7 sales” exemption (Answer, p. 12), the “commissioned employee” exemption (Answer, p. 13)
8 and/or the “administrative and/or executive” exemptions (Answer, p. 13). However, regardless
9 of which exemption Defendant attempts to prove in this case,4 Plaintiffs and all Canvassing Staff
10 will be “similarly situated” for purposes of the exemption inquiry due to the fundamental
11 equivalence of their job duties, and the common types of constraints and policies that delimit
12 their sphere of responsibility and control how they perform their work.
13 1. Fund for Public Interest Research, Inc.

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Defendant Fund for Public Interest Research, Inc. is a nationwide organization which
15 contracts to perform canvassing work on behalf of other organizations. Declaration of John T.
16 Mullan (“Mullan Dec.”), ¶2 & Ex. A. It maintains offices in 38 cities nationwide, including an
17 office in San Francisco, California. Mullan Dec., ¶3, Ex. B. Utilizing Canvassing Staff,
18 Defendant Fund collects signatures and donations on behalf of third-party advocacy groups. Id.
19 at ¶4 & Ex. C; Prentice Dec., ¶5; Miller Dec., ¶5; Petherbridge Dec., ¶5; Declaration of Michael
20 Oehler (“Oehler Dec.”), ¶5; Declaration of Robert Rose (“Rose Dec.”), ¶5; Declaration of Lauren
21 Steely (“Steely Dec.”), ¶5; Declaration of Sarah Stein (“Stein Dec.”), ¶5.
22
3
23 Plaintiffs have also filed California and New York state claims for unpaid wages
and related wage and hour law violations, which claims are not at issue in this motion.
24
4
FLSA exemptions are affirmative defenses which it is the employer’s burden to
25 prove. They are “narrowly construed against employers and are to be withheld except as to
persons plainly and unmistakenly within their terms and spirit.” Bothell v. Phase Metrics, 299
26 F.3d 1120, 1124-25 (9th Cir. 2002), internal quotes and alterations omitted.
27
1 2. All Canvassing Staff Have the Same Primary Job Duty
2 Though Fund Canvassing Staff may canvass for different third-party advocacy groups,
3 and may do so in different locations throughout the country, they all have the same, common
4 primary job duty: that is, to canvass door to door or in public locations soliciting donations and
5 collecting signatures for third-party non-profit and advocacy organizations. Prentice Dec., ¶5;
6 Miller Dec., ¶5; Petherbridge Dec., ¶5; Oehler Dec., ¶5; Rose Dec., ¶5; Steely Dec., ¶5; Stein
7 Dec., ¶5. This remains true regardless of the location in which the Canvassing Staff are
8 working, and regardless of whether they held the title Canvasser or Field Manager. Prentice
9 Dec., ¶¶8, 9; Miller Dec., ¶¶8, 9; Petherbridge Dec., ¶¶8, 9; Oehler Dec., ¶8; Rose Dec., ¶8;
10 Steely Dec., ¶8; Stein Dec., ¶8. This point is further illustrated by the Fund’s “canvass jobs web
11 site,” which states --- without regard to location or third-party advocacy group at issue --- that the
12
“heart of the job is canvassing” and involves going “door-to-door,” or “into public places” to
13 canvass. Mullan Dec., ¶4 & Ex. C.5

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Further, all Canvassing Staff have been required to adhere to the same types of policies,
15 procedures and training regarding how to canvass door to door or in public locations. Prentice
16 Dec., ¶¶7, 8; Miller Dec., ¶¶7, 8; Petherbridge Dec., ¶¶7, 8; Oehler Dec., ¶¶7, 8; Rose Dec., ¶¶7,
17 8; Steely Dec., ¶¶7, 8; Stein Dec., ¶¶7, 8. For instance, all Canvassing Staff have been required
18 to memorize a solicitation “script” and recite this script verbatim when soliciting door to door or
19 on street corners. Prentice Dec., ¶7; Miller Dec., ¶7; Petherbridge Dec., ¶7; Oehler Dec., ¶7;
20 Rose Dec., ¶7; Steely Dec., ¶7; Stein Dec., ¶7. As another example, all Canvassing Staff have
21 been subject to the common requirement of recording their canvassing results at the end of each
22 day. Prentice Dec., ¶5; Miller Dec., ¶5; Petherbridge Dec., ¶5; Oehler Dec., ¶5; Rose Dec., ¶5;
23 Steely Dec., ¶5; Stein Dec., ¶5.
24
5
25 Of course Plaintiffs disagree with how the job postings characterize Canvassing
Staff job duties. The point here is simply that the functions and responsibilities of all Canvassing
26 Staff are essentially the same, regardless of how they are described.
27
1 3. Fund Has Treated All Canvassing Staff as a Class for Purposes of

Denying Them Overtime Pay
2
3 Fund has classified all Canvassing Staff as a category as exempt from overtime pay.
4 Complaint, ¶¶1, 3, 21-23; Answer p.9; Prentice Dec., ¶4; Miller Dec., ¶4; Petherbridge Dec., ¶4;
5 Oehler Dec., ¶4; Rose Dec., ¶4; Steely Dec., ¶4; Stein Dec., ¶4. Fund has made a decision and
6 implemented a common policy to treat all of its Canvassing Staff as categorically “exempt” from
7 the FLSA’s overtime pay requirements. Complaint, ¶¶1, 3, 21-23; Answer p.9; Prentice Dec., ¶4;
8 Miller Dec., ¶4; Petherbridge Dec., ¶4; Oehler Dec., ¶4; Rose Dec., ¶4; Steely Dec., ¶4; Stein
9 Dec., ¶4.
10 III. DISCUSSION
11 A. The Court Should Grant Conditional Certification and Order Notice to the
Class
12
13 It is both critical and proper that this action be conditionally certified as an FLSA
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14 collective action and that potential collective action members be provided with notice of the
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15 action and an opportunity to opt in. Notice is critical because potential collective action members
16 are unaware of the action and/or the opt in procedure, and as a result are losing claims for unpaid
17 overtime wages to the statute of limitations on an ongoing basis. Notice is proper because, at this
18 early, pre-discovery stage of the case, the initial pleadings, declarations and other pre-discovery
19 evidence show that Plaintiffs and all Fund Canvassing Staff are “similarly situated employees.”
20 That is, they all share the same core job duty; they have all been subject to Fund’s common
21 policy and practice of classifying all Canvassing Staff as a category as exempt on a class-wide
22 basis; and they all have been denied overtime pay as part of this common plan and practice.
23 1. The Court Has Broad Discretion to Conditionally Certify a Class and

Facilitate Notice
24
25 The FLSA expressly provides that an action to recover unpaid wages and liquidated
26 damages may be maintained “by any one or more employees for and in behalf of himself or
27 themselves and other employees similarly situated.” 29 U.S.C. §216(b). Unlike in a Rule 23
1 “opt out” class action, employees in an FLSA class action must affirmatively “opt in” by filing a
2 written consent with the court. Id. Until they actually opt in, class members remain subject to
3 the running of the statute of limitations. Id. §§255, 256(b). Potential class members who do not
4 opt in are not bound by the judgment. See, e.g., Adams v. Inter-Con Security Sys., Inc., No. C 06-
5 05428 MHP, 2007 WL 1089694, *2 (N.D. Cal. Apr. 11, 2007).
6 Where an employee maintains an action on behalf other similarly situated employees, the
7 action is regarded as an FLSA “class” or “collective” action. See, e.g., Thiessen v. General Elec.
8 Capital Corp., 267 F.3d 1095, 1102 & n.3 (10th Cir. 2001); Edwards v. City of Long Beach, 467
9 F. Supp.2d 986, 989 (C.D. Cal. 2006). “Although the FLSA does not require certification for
10 collective actions, certification in a §216(b) collective action is an effective case management
11 tool, allowing the court to control the notice procedure, the definition of the class, the cut-off date
12 for opting in, and the orderly joinder of the parties.” Edwards, 467 F. Supp.2d at 989-90 (citing
13 Hoffmann-La Roche v. Sperling, 493 U.S. 165, 170-72 (1989)). To this end, the Supreme Court
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14 has “recognized the discretion of district courts to facilitate the process by which potential
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15 plaintiffs are notified of FLSA collective actions into which they may be able to opt.”
16 Beauperthuy v. 24 Hour Fitness USA, Inc., No. 06-0715 SC, 2007 WL 707475, at *5 (N.D. Cal.
17 Mar. 6, 2007) (citing Hoffmann-La Roche, 493 U.S. at 486)).
18 In Hoffmann-La Roche, the Supreme Court identified the numerous considerations that
19 underlie and support sending notice to the class: the congressional policy that employees should
20 be able to proceed collectively in order to “lower individual costs to vindicate rights” and benefit
21 the judicial system “by efficient resolution in one proceeding of common issues of law and fact;”
22 the need for employees to receive accurate and timely notice of the pendency of the action in
23 order to achieve the intended benefits of collective action; the “wisdom and necessity for early
24 judicial intervention” in managing the litigation, ascertaining the contours of the action at the
25 outset, and regulating the notice and opt in process. 493 U.S. at 170-72. The Supreme Court
26 noted the deliberateness of congress’ decision to provide for collective actions, and emphasized
27 that, “[t]he broad remedial goal of the statute should be enforced to the full extent of its terms.”
1 Id. at 173.
2 In cases for unpaid wages, the additional factor that heavily favors conditional
3 certification and class notice is that the statute of limitations is running on each employee’s
4 claims until he or she opts in. The running of the statute of limitations prejudices potential class
5 members by continually cutting off periods of past employment for which they might otherwise
6 be able to recover unpaid wages. See, e.g., Beauperthuy, 2007 WL 707475 at *7.6
7 2. The Standard for Granting Conditional Certification and Class Notice

is Very Lenient
8
9 After Hoffmann-La Roche, courts, including this Court, have utilized a two-stage process
10 for deciding whether to certify FLSA class actions. At the first stage the court determines
11 whether to conditionally certify a class and notify potential class members about how they can
12 preserve their rights by opting in. At the second stage, typically on the basis of a motion to
13 decertify filed after the close of discovery, the court determines whether the case should proceed
LAW OFFICES OF
14 to trial on a class basis. See, e.g., Thiessen, 267 F.3d at 1106; Beauperthuy, 2007 WL 707475 at
(415) 434-9800
15 *5. Only the first stage is at issue here.
16 At the notice stage, the court applies a relaxed standard to determine whether the
17 Plaintiffs’ allegations and any declarations support a preliminary finding that “similarly situated”
18 employees exist who might want to opt in. “The standard for certification at this stage is a
19 lenient one that typically results in certification.” Gerlach v. Wells Fargo & Co., No. C 05-0585
20 CW, 2006 WL 824652, *2 (N.D. Cal. Mar. 28, 2006); Adams, 2007 WL 1089694 at *4; Agdipa
21 v. Grant Joint Union High Sch. Dist., No. Civ. S-06-1365 DFL DAD, 2007 WL 1106099, *1
22 (E.D. Cal. Apr. 10, 2007); Avila v. Turlock Irrigation Dist., No. 1:06-CV-00050 OWW SMS,
23
6
As with other wages, overtime wages are generally due to be paid on a periodic
24 basis. A separate FLSA violation occurs each time the employer does not pay overtime wages
for a particular period on the date they are due. If the due date falls outside the statutory period,
25 the employee cannot recover unpaid wages for the period of employment covered by that due
date. Thus, as long as the statute is running, a given employee will continue to lose successive
26 periods of employment to the statute of limitations.
27
1 2006 WL 3201083, *3 (E.D. Cal. Nov. 6, 2006); Stanfield v. First NLC Fin. Servs., LLC, No. C
2 06-3892 SBA, 2006 WL 3190527, *2 (N.D. Cal. Nov. 1, 2006); Edwards, 467 F. Supp.2d at 990;
3 Morden v. T-Mobile USA, Inc., No. C05-2112RSM, 2006 WL 2620320, *2 (W.D. Wash. Sep. 12,
4 2006); Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 482 (E.D. Cal. 2006); see
5 Beauperthuy, 2007 WL 707475, at *5 (“movant bears a very light burden”).
6 Numerous courts have emphasized the minimal showing required at this stage, typically
7 consisting of only the allegations of the complaint and a small number of declarations, where
8 available. See, e.g., Romero, 235 F.R.D. at 482-83 (allegations and two declarations); Brown v.
9 Money Tree Mortgage, Inc., 222 F.R.D. 676, 680-81 (D. Kan. 2004) (same); Williams v.
10 Sprint/United Mgmt. Co., 222 F.R.D. 483, 487 (D. Kan. 2004) (allegations in complaint were
11 “more than sufficient to support provisional certification”); Reab v. Electronic Arts, Inc., 214
12 F.R.D. 623, 628 (D. Colo. 2002) (allegations in complaint); Allen v. Marshall Field & Co., 93
13 F.R.D. 438, 442-45 (N.D. Ill. 1982) (allegations in complaint); Ballaris v. Wacker, No. 00-1627,
LAW OFFICES OF
14 2001 WL 1335809, *2 (D. Or. Aug. 24, 2001) (two affidavits); Camper v. Home Quality Mgmt,
(415) 434-9800
15 Inc., 200 F.R.D. 516, 519-21 (D. Md. 2000) (two depositions and two declarations); Zhao v.
16 Benihana, No. 01 Civ. 1297 (KMW), 2001 WL 845000, **2-3 (S.D.N.Y. July 5, 2001) (one
17 affidavit based on plaintiff’s “best knowledge”); Aguayo v. Oldenkamp Trucking, No. CV-F-04-
18 6279 AWI LJO, 2005 WL 2436477, at *4 (E.D. Cal. Oct. 3, 2005) (O’Neill, M.J.) (allegations in
19 complaint and named plaintiff’s declaration); see also Beauperthuy, 2007 WL 707475 at *7
20 (eleven declarations); Morden, 2006 WL 2620320, *3 (evidence of comparable job descriptions
21 and uniform exempt classification).7
22 ///
23
7
In addition, the Court may consider evidence that would be inadmissible at trial.
24 Beauperthuy, 2007 WL 707475 at *7 n.5; Crawford v. Lexington-Fayette Urban County Govt.,
No. 06-299-JBC, 2007 WL 293865, **1-2 (E.D. Ky. Jan. 26, 2007); White v. MPW Indus. Servs.,
25 Inc., 236 F.R.D. 363, 367-68 (E.D. Tenn. 2006); Coan v. Nightingale Home Healthcare, Inc., No.
1:05-CV-0101-DFH-TAB, 2005 WL 1799454, *1 n.1 (S.D. Ind. Jun. 29, 2005); see also Aguayo,
26 2005 WL 2436477 at *4.
27
1 The lenient standard is particularly fitting here, where no discovery has been completed.
2 See, e.g., Thiessen, 267 F.3d at 1102 (where there has been no discovery, notice-stage
3 certification may be granted based on “nothing more than substantial allegations that the putative
4 class members were together the victims of a single decision, policy, or plan”) (internal
5 quotations and citations omitted); Bonilla v. Las Vegas Cigar Co., 61 F. Supp.2d 1129, 1139 n.6
6 (D. Nev. 1999) (requiring only “some factual nexus which binds the named plaintiffs and the
7 potential class members together as victims of a particular alleged [policy or practice]” (citations
8 omitted)); see also Morden, 2006 WL 2620320 at *3 (rejecting defendant’s reliance on
9 heightened standard applicable in cases where employees have been able to conduct substantial
10 discovery).
11 3. Notice is Appropriate Because Plaintiffs are “Similarly Situated” to

Other Canvassing Staff

12
13 Notice-stage certification is warranted here because Plaintiffs’ allegations and evidence

LAW OFFICES OF
14 are more than sufficient to satisfy the lenient first-stage “similarly situated” standard.
(415) 434-9800
15 Plaintiffs’ allegations, declarations and documentary evidence show that they and all
16 other Canvassing Staff have all had the same primary job duty of collecting signatures and
17 soliciting donations for third-party advocacy groups. Thus, Plaintiffs have made the requisite
18 threshold showing to support the conditional determination that all Canvassing Staff are
19 “similarly situated” with respect to what is expected to be the central issue in the case: whether
20 their job duties bring them within one of the narrow exemptions from the FLSA’s overtime pay
21 requirements.8
22 This is true regardless of which FLSA exemption Fund might try to prove. For example,
23 Plaintiffs have made a threshold showing that all Canvassing Staff are similarly situated with
24 respect to the duties relevant to the “outside sales” exemption, which requires that an employee
25
8
Of course, the merits of any exemption defense Defendant might plead are not to
26 be adjudicated on a certification motion. See, e.g., Thiessen, 1106-07.
27
1 be engaged in making actual sales: See generally 29 U.S.C. §203(k); id. §213(a)(1); 29 C.F.R.
2 §541.500. Plaintiffs contend that Canvassing Staff’s uniformly-shared function of collecting
3 signatures and soliciting donations for various third party advocacy groups does not constitute
4 “making sales” within the meaning of the exemption. But what matters for purposes of this
5 Motion is Plaintiffs’ threshold showing that all Canvassing Staff are similarly situated for
6 purposes of resolving this issue.
7 As another example, Plaintiffs have made a threshold showing that all potential class
8 members are similarly situated with respect to the “administrative exemption,” which requires
9 among other things that an employee’s primary duty be the performance of work “directly related
10 to the management or general business operations of the employer, and that the employee’s
11 primary duty requires him or her to exercise “discretion or independent judgment” to make
12 significant business decisions. See generally 29 U.S.C. §213(a)(1); 29 C.F.R. §§541.200-

13 541.202. Plaintiffs contend that the Canvassing Staff’s uniform, core duty to collect signatures
LAW OFFICES OF
14 and solicit donations for various third party advocacy groups using pre-approved scripts provided
(415) 434-9800
15 by the Fund does not satisfy either part of this standard. But again, what matters for this Motion
16 is Plaintiffs’ notice-stage showing that all Canvassing Staff are similarly situated for
17 administrative exemption analysis.
18 In addition, Plaintiffs’ evidence and allegations establish that all Canvassing Staff are
19 similarly situated with regard to Fund’s common policy and practice of classifying all
20 Canvassing Staff as exempt from the FLSA on a categorical basis, and denying them overtime
21 pay on that basis. See Gerlach, 2006 WL 824652, at **6-7 (conditional certification appropriate
22 where putative class members “were together the victims of a single decision, policy or plan.”);
23 Complaint, ¶¶1, 3, 21-23; Answer p.9; Prentice Dec., ¶4; Miller Dec., ¶4; Petherbridge Dec., ¶4;
24 Oehler Dec., ¶4; Rose Dec., ¶4; Steely Dec., ¶4; Stein Dec., ¶4. This common policy and
25 practice not only attests to the essential similarity of all Canvassing Staff’s job duties for
26 purposes of the FLSA exemption analysis, but it also shows that all Canvassing Staff appear to be
27 similarly situated with respect to the cause of their failure to receive overtime pay, and with
1 respect to the issues of whether Fund’s FLSA violations have been willful and/or not committed
2 in good faith. See 29 U.S.C. §255(a) (FLSA statute of limitations extended to three years for
3 willful violations); id. §260 (if employer’s violations were in good faith and based on objectively
4 reasonable grounds, court may reduce the amount of, or not award, the liquidated damages
5 required by 29 U.S.C. §216(b)).
6 In Gerlach v. Wells Fargo, Judge Wilken noted that, “Plaintiffs meet their burden of
7 showing that all [potential class members] are similarly situated with respect to their FLSA
8 claim: all [potential class members] share a job description, were uniformly classified as exempt
9 from overtime pay by Defendants and perform similar job duties.” Gerlach, 2006 WL 824652 at
10 **8-9; see also Beauperthuy, 2007 WL 707475 at **6-7 (conditionally certifying class of
11 employees in misclassification case based on evidence and allegations regarding employees’ job
12 duties and uniform designation of employees as exempt under company policy); Morden, 2006
13 U.S. Dist. Lexis 68696 at **7-10 (conditionally certifying class of employees in misclassification
LAW OFFICES OF
14 case based on minimal evidence of “comparable job descriptions” and uniform classification;
(415) 434-9800
15 defendant’s arguments and extensive evidence regarding purported differences between class
16 members were “more appropriate” for a second-stage decertification determination); Kane v.
17 Gage Merchandising Servs., 138 F. Supp. 2d 212, 214-15 (D. Mass. 2001) (notice stage
18 certification appropriate where there was initial showing that employer classified group of
19 employees as exempt and did not pay them overtime). As described above, Plaintiffs’
20 declarations and other evidence demonstrates that the proposed class members all performed
21 similar job duties, whether they held the title of “Canvasser” or “Field Manager,” and were all
22 uniformly classified by Defendant as exempt from overtime.
23 B. Scope of the Class
24 For purposes of conditional certification and notice, the class should be comprised of all
25 past, present, and future employees of Fund who have held the job title/job classification of
26 “Canvasser,” “Field Manager,” or any predecessor or successor job title/classification for the
27
1 same positions (collectively, “Covered Positions”).9 Notice should be sent to all people
2 employed in Covered Positions on or after the earliest date covered by the first Fund pay date that
3 falls within the three-year statutory period. For present purposes, Plaintiffs propose that the date
4 by which a person must have been employed in a Covered Position in order to be included in the
5 notice should be the date the Court files an order requiring Defendant to produce potential class
6 members’ names and contact information.
7 The three-year statute of limitations for willful violations, 29 U.S.C. §255(a), is properly
8 applied at this stage because Plaintiffs allege that Fund’s FLSA violations have been willful
9 (Complaint, ¶¶18, 22-26) and may succeed in proving willfulness at trial. See, e.g., Adams, 2007
10 WL 1089694 at *10 (applying three-year statute where willful violations alleged); Beauperthuy,
11 2007 WL 707475, at *7 (same); Klem v. County of Santa Clara, No. C-91-20674 RMW (PVT),
12 1996 WL 438801, *1, *4 & n.9, *7 (N.D. Cal. Apr. 1, 1996) (same); see generally Chao v. A-One
13 Med. Servs., 346 F.3d 908, 918 (9th Cir. 2003) (willfulness standard is whether employer “knew
LAW OFFICES OF
14 or showed reckless disregard for the matter of whether its conduct was prohibited”).
(415) 434-9800
15 C. The Court Should Order and Approve Class Notice

16 The Court should order Fund to produce potential class members’ names and contact
17 information to Plaintiffs’ counsel and approve the mailing of notice to all potential class
18 members. This is well-accepted procedure and is integral to the collective action procedure. See,
19 e.g., Hoffmann-La Roche, 493 U.S. at 168-70; Adams, 2007 WL 1089694 at *7; Gerlach, 2006
20 WL 824652 at *7; Klem, 1996 WL 438801 at *7.
21 ///
22 ///
23
9
24 Plaintiffs reserve the right to amend the Complaint and seek additional notice and
an opportunity to opt in be provided at a later date to individuals who become employed in
25 Covered Positions after the filing date of the Court’s order granting Plaintiffs’ Motion and/or to
individuals who, it may be later determined, are indirectly employed or jointly employed by
26 Fund.
27
1 D. Plaintiffs’ Proposed Form of Notice Should be Approved
2 Plaintiffs propose a neutral and straightforward form of notice, which will inform
3 prospective Plaintiffs of their statutory opt-in rights. See [Proposed] Order, Ex. A. The proposed
4 notice explains the nature of the action and identifies Plaintiffs’ allegations. It makes clear that
5 the Court has not adjudicated the merits of the dispute, and that Fund denies any liability or
6 wrongdoing. The notice also identifies a website individuals can visit to obtain further
7 information. The notice provides Plaintiffs’ counsel’s contact information, so that potential class
8 members can speak with the attorneys who will presumptively represent them if they choose to
9 opt in.
10 Finally, the notice correctly summarizes potential class members’ options. It makes clear
11 that individuals are free to select their own counsel. It also warns that individuals who opt in will
12
be bound by the resulting judgment, whether favorable or unfavorable. The notice is to be

13 accompanied by substantially the same consent to join form that Plaintiffs have already used to
LAW OFFICES OF
14
(415) 434-9800
communicate their consent to sue in this lawsuit. See [Proposed] Order, Ex. B.
15 E. The Statute of Limitations Should Be Equitably Tolled
16 Under the FLSA, the statute of limitations for each individual party plaintiff is not tolled
17 until he or she files a written consent to join the action, or until the court issues an equitable
18 tolling order. 29 U.S.C. §256(b); Partlow v. Jewish Orphans’ Home of Southern Cal., Inc., 645
19 F.2d 757, 760 (9th Cir. 1981), abrogated on other grounds by Hoffmann-La Roche, 495 U.S. 165
20 (1989); Owens v. Bethlehem Mines Corp., 630 F. Supp. 309, 312-13 (S.D. W. Va. 1986).
21 Equitable tolling is appropriate under the FLSA where similarly-situated plaintiffs,
22 through no fault of their own, have been unable to join the lawsuit. Baldozier v. Am. Family Mut.
23 Ins. Co., 375 F. Supp. 2d 1089, 1093 (D. Colo. 2005) (granting tolling to the date of the filing of
24 the original complaint where the defendant had refused “to provide contact information for
25 former employees”); Partlow, 645 F.2d at 760 (granting equitable tolling where original consents
26 found invalid based on improper attorney solicitation of plaintiffs); Owens, 630 F. Supp. at 312-
27
1 13 (equitable tolling where court did not rule on plaintiff’s motion for collective action
2 certification for over a year, during which time other plaintiffs were effectively precluded from
3 filing written consents to join).
4 In this case, Plaintiffs’ counsel requested Fund to provide contact information for
5 potential FLSA collective action members, expressly for the purpose of providing notice to
6 similarly-situated employees of the lawsuit and giving them an opportunity to opt in. Lowe Dec.
7 ¶5. Plaintiffs’ counsel also requested a tolling agreement from Fund that would eliminate the
8 need for Plaintiffs to rush to the Court seeking conditional certification and equitable tolling. Id.
9 at Ex. A at p. 2. Defendant refused both requests. Id. at ¶6.
10 In addition, Fund’s categorical exempt classification practice has had the expected and
11 foreseeable effect of misleading potential class members as to facts and legal standards that might
12 have made them question their non-receipt of overtime wages and investigate their rights – by
13 concealing that it is their employer who has determined to treat them as exempt and not pay them
LAW OFFICES OF
14 overtime, possibly wrongly. Finally, the complaint has obviously put Defendant on notice not
(415) 434-9800
15 only of Plaintiffs’ claims, but also the claims of all potential class members.
16 Under these circumstances, the equities weigh in favor of equitably tolling the claims of
17 the FLSA collective class members. See Baldozier, 375 F. Supp. 2d at 1093 (tolling ordered as
18 of the date of complaint where defendant had refused “to provide contact information for former
19 employees”); Henchy v. City of Absecon, 148 F. Supp.2d 435, 438-39 (D. N.J. 2001) (employer’s
20 summary judgment motion regarding equitable tolling denied where employee alleged that
21 employer assured him that overtime compensation provided for by employment agreement was
22 proper); cf. Randle v. City of New Albany, No. 3:05CV74, 2006 WL 2085387, **3-4 (N.D. Miss.
23 Jul. 25, 2006) (disputed issues of fact regarding whether employer knowingly misled employees
24 about its overtime obligations precluded summary judgment on equitable tolling/estoppel claim);
25 Owens, 630 F. Supp. at 312-13 (tolling to offset delay in progress of litigation). Plaintiffs request
26 tolling as of the date Plaintiffs filed the complaint, December 19, 2006, through the date of the
27 Court-ordered deadline for filing Consents to Join.

1 IV. CONCLUSION
2 For the reasons set forth above, Plaintiffs respectfully request that the Court grant their
3 Motion, thereby conditionally certifying this case as a FLSA class action under 29 U.S.C.
4 §216(b); authorize dissemination of notice to the prospective class; approve Plaintiffs’ proposed
5 forms of notice and written consent to join; order Defendant Fund promptly to produce the
6 names, addresses, and telephone numbers of all potential collective action members; and
7 equitably toll the statute of limitations for all potential collective action members from December
8 19, 2006.
9 Respectfully submitted,
10
11 Dated: May 18, 2007 By: /s/ David A. Lowe

David A. Lowe
12 Attorneys for Plaintiffs

13 David A. Lowe (State Bar #178811)

John T. Mullan (State Bar # 221149)
LAW OFFICES OF
14 RUDY, EXELROD & ZIEFF, L.L.P.

(415) 434-9800
351 California Street, Suite 700

15 San Francisco, CA 94104
Telephone: (415) 434-9800
16
Facsimile: (415) 434-0513
17 Email: dal@reztlaw.com
Email: jtm@reztlaw.com
18
19
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21
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The Fund Class Action - Motion For Certification

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Case3:06-cv-07776-SC Document28 Filed05/18/07 Page1 of 23

1 David A. Lowe (State Bar #178811)

8 UNITED STATES DISTRICT COURT

12 RICHARD PRENTICE, CHRISTIAN Case No. C-06-7776 SC

MILLER, and TIFFINEY

13 PETHERBRIDGE, on their own behalf and

14 NOTICE OF MOTION AND MOTION

FOR CONDITIONAL COLLECTIVE

1 NOTICE OF MOTION AND MOTION

2 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

8 the Court’s order granting Plaintiffs’ Motion); and,

12 filed with the Court.

5 A. Claims and Background .......................................................................................... 3

6 1. Fund for Public Interest Research, Inc. ....................................................... 4

8 3. Fund Has Treated All Canvassing Staff as a Class for Purposes of

1. The Court Has Broad Discretion to Conditionally Certify a Class

13 and Facilitate Notice.................................................................................... 6

14 2. The Standard for Granting Conditional Certification and Class

Notice is Very Lenient ................................................................................ 8

17 B. Scope of the Class ................................................................................................. 13

4 Adams v. Inter-Con Security System, Inc., No.

9 Allen v. Marshall Field & Co.,

11 Avila v. Turlock Irrigation Dist.,

12 2006 WL 3201083 (E.D. Cal. Nov. 6, 2006) ...................................................................... 9

13 Baldozier v. America Family Mutual Insurance Co.,

20 Bothell v. Phase Metrics,

25 Chao v. A-One Medical Services,

1 Coan v. Nightingale Home Healthcare, Inc.,

5 Edwards v. City of Long Beach,

12 Kane v. Gage Merchandising Services,

138 F. Supp. 2d 212 (D. Mass. 2001)................................................................................ 12

No. C-91-20674 RMW (PVT),

16 Morden v. T-Mobile USA, Inc., No.

20 Partlow v. Jewish Orphans' Home of Southern Cal., Inc.,

25 Romero v. Producers Dairy Foods, Inc.,

1 Shaffer v. Farm Fresh, Inc.,

8 Williams v. Sprint/United Management Co.,

29 U.S.C. §201 et seq ...........................................................................................................passim

29 U.S.C. §216(b).......................................................................................................... 1, 7, 12, 16

1 MEMORANDUM OF POINTS AND AUTHORITIES

13 frustrated, and judicial economies lost.

14 ongoing basis under the status quo.

8 affirmatively opt-in in order to be included.

13 1. Fund for Public Interest Research, Inc.

1 2. All Canvassing Staff Have the Same Primary Job Duty

13 canvass. Mullan Dec., ¶4 & Ex. C.5

1 3. Fund Has Treated All Canvassing Staff as a Class for Purposes of

23 1. The Court Has Broad Discretion to Conditionally Certify a Class and

5 05428 MHP, 2007 WL 1089694, *2 (N.D. Cal. Apr. 11, 2007).

10 collective actions, certification in a §216(b) collective action is an effective case management

17 Mar. 6, 2007) (citing Hoffmann-La Roche, 493 U.S. at 486)).

7 2. The Standard for Granting Conditional Certification and Class Notice

15 *5. Only the first stage is at issue here.

5 Beauperthuy, 2007 WL 707475, at *5 (“movant bears a very light burden”).

20 (eleven declarations); Morden, 2006 WL 2620320, *3 (evidence of comparable job descriptions

21 and uniform exempt classification).7

8 omitted)); see also Morden, 2006 WL 2620320 at *3 (rejecting defendant’s reliance on

11 3. Notice is Appropriate Because Plaintiffs are “Similarly Situated” to

Other Canvassing Staff

13 Notice-stage certification is warranted here because Plaintiffs’ allegations and evidence

2 §541.500. Plaintiffs contend that Canvassing Staff’s uniformly-shared function of collecting

6 purposes of resolving this issue.

20 WL 824652 at 7; Klem, 1996 WL 438801 at 7.