Mikityuk v. Cision US Inc.

Background

The plaintiffs had previously asked the court to authorize notice of a collective action under Section 216(b) of the Fair Labor Standards Act. In its May 4, 2021 order, the court conditionally certified the collective, subject to changes to the notice and consent forms. The court also ruled that people who wanted to join the collective should send their written consent forms to the Clerk of Court. The court relied on Section 256, which provides that an action is considered started—and the limitations period stops running—when the written consent is filed in court.

The plaintiffs moved for reconsideration, asking to submit consent forms electronically to an email address at the Clerk’s Office or in Chambers. They argued that requiring paper forms to be mailed directly to the Clerk could make it harder for potential collective members to join. They submitted an expert declaration describing administrative and participation problems that could result from the court’s process. The court struck that declaration because Local Rule 6.3 generally bars affidavits unless the court directs that they may be filed.

The plaintiffs also submitted a revised, two-sided consent form. One side contained an opt-in participant’s contact information, and the other contained the formal consent, signature, and date. They asked the court to approve related procedures, including sealing contact information, using the date the Clerk received each form as the filing date, preserving the original forms, and emailing copies to plaintiffs’ counsel each week.

Court’s reasoning

The court explained that reconsideration is an extraordinary remedy. It is generally available only when there has been a controlling change in the law, new evidence has become available, or correction is needed to prevent clear error or serious unfairness. The court concluded that the plaintiffs’ arguments came too late because they could have raised them in their original request for notice or in the supplemental briefing the court invited. The court also found no serious unfairness in requiring people who want to join a federal lawsuit to use the filing process established by Congress.

The court recognized practical reasons favoring an independent claims administrator or another method of collecting forms, including reducing the burden on Clerk’s Office personnel. But it also found important reasons for sending the forms directly to the Clerk. Under the Fair Labor Standards Act, the limitations period continues to run until an opt-in participant’s consent form is filed in court, and the participant does not become a party until that filing occurs. The court therefore maintained its earlier decision not to approve electronic submission or treat a form as filed on an earlier date based on receipt by plaintiffs’ counsel.

The court approved the revised consent form because separating public information from information that should be sealed would make filing more efficient. It directed that the contact-information side be filed under seal and that the side containing signatures and dates be scanned and filed publicly. The legally operative date would be the date the court received and date-stamped the mailed consent form, rather than the later date when the form was placed on the electronic docket. The court would preserve the original forms and later make copies available to plaintiffs’ counsel. Defense counsel could seek access to contact-information copies by motion if justified.

The court also rejected the plaintiffs’ request that the Clerk email copies of consent forms to counsel each week. It accepted the defendants’ objections to a unique identifier and to notice language suggesting electronic submission. The plaintiffs were directed to remove that language and promptly submit for review the email communication they intended to use to send the notice. The court stated that the plaintiffs’ repeated filings had delayed sending notice. The defendants’ request for fees under 28 U.S.C. § 1927 was deferred pending the plaintiffs’ response.

Disposition

Judge Lewis J. Liman denied the plaintiffs’ motion for reconsideration. The Clerk was directed to close that motion and strike the expert affidavit.

The court granted in part and denied in part the plaintiffs’ motion for approval of the revised notice, consent form, and process. The revised notice was approved. The court specified that the consent-form sides containing signatures and dates would be filed publicly and the sides containing contact information would be filed under seal. The request for weekly email copies of consent forms to counsel was denied. The court separately deferred consideration of the defendants’ request for fees.