United States District Court, D. Massachusetts
August 20, 2014
DICK'S SPORTING GOODS, INC.
MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION FOR CONDITIONAL CLASS CERTIFICATION AND NOTICE AND DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT
RICHARD G. STEARNS, District Judge.
This is a Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, case in which plaintiffs Cheryl Lapan and Michelle Shutt allege that they, and all other "Assistant Store Managers" (ASMs) employed by defendant Dick's Sporting Goods, Inc. (DSG), have been, and continue to be, improperly classified as exempt employees by DSG, which failed to pay them for all hours worked and failed to pay overtime. The court heard a spirited oral argument on June 2, 2014, in which experienced counsel focused on the propriety of conditionally certifying a nationwide class of ASMs.
After careful consideration, the court sees no reason to blaze new trails or to revisit the two-tier approach laid out by Judge Young in Trezvant v. Fid. Empl. Servs. Corp., 434 F.Supp.2d 40 (D. Mass. 2006). Judge Young explained that, in taking this two-tier approach, "the court makes an initial determination of whether the potential class should receive notice of the pending action and then later, after discovery is complete, the court makes a final similarly situated' determination." Id. at 42, citing Kane v. Gage Merch. Servs., Inc., 138 F.Supp.2d 212, 214 (D. Mass. 2001) (Gorton, J.). This is in contrast to an approach that applies the standards of Fed.R.Civ.P. 23 (numerosity, commonality, typicality, and adequacy of representation) when determining whether to order notice to a potential class. As Judge Young noted, his recommended course of proceeding was the one then preferred by a majority of federal courts. It has further support in this district, see O'Donnell v. Robert Half Int'l, Inc., 429 F.Supp.2d 246 (D. Mass. 2006) (Gorton, J.), and outside, see Myers v. Hertz Corp., 624 F.3d 537, 554-555 (2d Cir. 2010). Consequently, the court will ALLOW plaintiffs' motion for conditional class certification. The court directs the parties to file a joint proposal (to the extent agreement is possible) by September 3, 2014, for a form and mechanism of notice to putative class members and a procedure for adopting those who timely elect to opt-in.
Defendant's motions for summary judgment are DENIED without prejudice as premature. Plaintiffs' motion to strike is DENIED as moot.