Mikityuk v. Cision US Inc.

Background

The court addressed several issues concerning notices to potential members of an employment collective action. Plaintiffs had sent court-approved notices by United States mail and email. They re-mailed notices to 26 people, including people whose notice sent by one method had not been returned as undeliverable. Defendants argued that a new notice period should be available only when both forms of notice were undeliverable and a new address was found. Plaintiffs argued that re-mailing was appropriate whenever either method failed to ensure that recipients actually saw the notice.

The court also addressed reminder notices, access to full Social Security numbers for people whose notices could not be delivered, and Plaintiffs’ motion to compel contact information for New York salespeople who sold Falcon.io products. Plaintiffs also sought discovery about Cision’s relationships with affiliates and other entities that Plaintiffs believed might be joint employers.

Notice re-mailings and deadlines

The court found that its prior notice language was ambiguous when read by itself, but concluded that the court had authorized two methods of notice to ensure that potential opt-ins received some form of notice—not both forms. The court therefore denied Plaintiffs’ request to re-mail notices to people who had received notice by either email or U.S. Mail, as shown by the notice not being returned. Plaintiffs could re-mail notices only to people who received neither email nor U.S. Mail notice.

The court denied Defendants’ request for corrected notices to the August 9 mailing group that would restate the September 4 deadline. It found that the notices had been sent in good faith and that changing the deadline after recipients had been told of a later date would be confusing and prejudicial. The court found good cause for a new date for the eight people in the August group whose email notices were not returned as undeliverable. It also stated that the statute of limitations for those and other opt-ins would stop running only when the Consent to Join form was received.

The court required Plaintiffs to give Defendants weekly information about future notices returned as undeliverable, including whether both email and U.S. Mail notices failed and when a new address was found. The court also rejected Plaintiffs’ argument that the deadline for people who received the July re-mailings was September 24 or September 27, 2021, while leaving open any other arguments about excusing a missed deadline.

Reminder notices

Plaintiffs could send a reminder postcard and email to the single person in the August group for whom both the U.S. Mail and email notices were returned as undeliverable. The court denied the request to send reminders with new dates to people who had received email notice but not U.S. Mail notice.

Full Social Security numbers

The court explained that it had discretion to allow discovery of full Social Security numbers when names and contact information were insufficient to provide notice. It declined to require disclosure for people who had received notice by either email or U.S. Mail. If Plaintiffs identified people for whom both forms of notice were returned as undeliverable and provided Defendants evidence that notice could not be delivered by either method, Defendants were required to provide those people’s full Social Security numbers. The disclosure was subject to a confidentiality agreement containing the provisions identified in the court’s cited precedent.

Motion to compel

The court denied Plaintiffs’ motion to compel contact information for additional salespeople and discovery about other entities. The complaints and the request for conditional certification defined the relevant group as people who worked for Cision US Inc. and Cision Ltd. The court’s prior certification order likewise limited the collective to employees of those two entities.

The court stated that Defendants had represented, without contradiction, that they had provided contact information for all relevant-position employees of Cision US Inc. and Cision Ltd., including employees nationwide. Defendants were not required to provide information about people employed by other entities because Plaintiffs had not alleged that those people were employees of Cision US Inc. or Cision Ltd., had not sought certification for them, and had offered no evidence supporting joint employment. The court characterized the requested discovery about other entities as a fishing expedition.

Disposition

The court denied Plaintiffs’ request to re-mail notices to people who had received notice by either method, denied Defendants’ request for corrected August-batch notices, allowed limited re-mailing and reminder notices for people who received neither form of notice, required conditional disclosure of full Social Security numbers for people whose notices failed by both methods, and denied Plaintiffs’ motion to compel. The Clerk was directed to close the motions at Docket Nos. 115, 117, 78, and 87. Judge Lewis J. Liman issued the order dated August 19, 2021.