United States District Court, D. Colorado
LANE MASSINGALE, on behalf of himself and all similarly situated persons, Plaintiff,
LIBERTY OILFIELD SERVICES LLC, a Delaware limited liability company, Defendant.
A. BRIMMER UNITED STATES DISTRICT JUDGE
matter comes before me on plaintiff's Motion to Approve
Notice and Consent to Join Form [Docket No. 40]. Plaintiff
brings this action to recover unpaid wages under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. §
201 et seq., the Colorado Wage Claim Act, Colo. Rev.
Stat. § 8-4-101 et seq., and the Colorado
Minimum Wage Act, Colo. Rev. Stat. § 8-6-101 et
seq. Docket No. 1 at 1. On September 24, 2018, I
conditionally certified, for purposes of the FLSA claim, a
collective of current and former Equipment Operators and Core
Operators who worked out of defendant Liberty Oilfield
Services' Gillette, Wyoming camp at any time between May
19, 2014 and the present. Docket No. 37 at 2, 10. In that
order, I identified several deficiencies in plaintiff's
proposed notice and directed plaintiff to file a Motion to
Approve Notice and Consent to Join Form indicating the manner
in which he intended to disseminate notice to putative
members of the collective, along with a revised Notice and
Consent to Join Form for the Court's consideration.
Id. at 12.
filed his motion and revised notice on October 16, 2018.
Docket No. 40. Plaintiff requests that the Court (1) approve
the revised proposed notice; (2) order defendant to provide
plaintiff's counsel with a list of potential collective
action members, including their dates of employment and
contact information; and (3) order plaintiff to disseminate
notice by text, if available, email, if available, and First
Class U.S. Mail to the last known telephone numbers/addresses
of the putative collective members. Id. at 1-2.
Defendant filed a response to plaintiff's motion and
revised proposed notice on October 19, 2018. Docket No. 41.
Defendant does not raise any new objections to the manner or
content of plaintiff's proposed notice, but requests that
the Court “limit the notice to a one-time distribution
and instruct Plaintiff's counsel not to use Liberty's
current and former employees' contact information for any
purpose other than sending the one-time distribution of the
notice.” Id. at 2. Defendant contends that
such an order is appropriate because plaintiff's counsel
has used a class list from another case in this District
“to send factually inaccurate and misleading letters on
law firm letterhead.” Id.
defendant provides no justification for requesting a one-time
distribution, that request will be denied. As to the proposed
restriction on plaintiff's counsel's communications
with putative members of the collective, I agree with
plaintiff that defendant has failed to show that such a
restriction is warranted. “[A] district court has both
the duty and the broad authority to exercise control over a
[collective] action and to enter appropriate orders governing
the conduct of counsel and the parties.” Shaw v.
Interthinx, No. 13-cv-01229-REB-BNB, 2014 WL 12741157,
at *2 (D. Colo. Feb. 7, 2014) (internal quotation marks
omitted) (quoting Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 171 (1989)). However, any
“order limiting communications between parties and
potential class members should be based on a clear record and
specific findings that reflect a weighing of the need for a
limitation and the potential interference with the rights of
the parties.” Gulf Oil Co. v. Bernard, 452
U.S. 89, 101 (1981). Additionally, such an “order must
be narrowly tailored to avoid impinging upon the parties'
constitutional rights of free speech and association.”
Stransky v. Health ONE of Denver, Inc., 929
F.Supp.2d 1100, 1105 (D. Colo. 2013) (citing Gulf Oil
Co., 452 U.S. at 102)).
seeking to restrict an opposing counsel's communications
with putative class/collective action members “must
make two showings: first, a communication has occurred or is
threatened to occur and, second, the form of the
communication at issue is abusive and threatens the proper
functioning of the litigation.” Bass v. Pjcomn
Acquisition Corp., No. 09-cv-01614-REB-MEH, 2011 WL
902022, at *3 (D. Colo. Mar. 14, 2011). Defendant has not
satisfied either showing in this case. While defendant points
to another lawsuit, Cooper v. Noble Casing, Inc.,
No. 15-cv-01907-WJM-SKC (D. Colo.), in which plaintiff's
counsel purportedly used a class list to disseminate
factually inaccurate and misleading letters to potential
opt-in plaintiffs, Docket No. 41 at 2, neither the attorney
nor the law firm primarily responsible for those letters is
involved in this case. Id., Docket Nos. 85, 85-3.
Regardless, evidence of conduct occurring almost a year ago
in a different case does not satisfy defendant's burden
of showing that an inappropriate “communication has
occurred or is threatened to occur” here.
Bass, 2011 WL 902022, at *3. Accordingly,
defendant's request for an order limiting plaintiff's
counsel's communications with potential collective
members will be denied.
regard to the form of plaintiff's Proposed Notice, Docket
No. 40-1, I find that plaintiff's revisions cure the
deficiencies identified in my previous order, Docket No. 37,
with one exception: the third bulleted section on the first
page of the Proposed Notice should read “as Operators
at Liberty in the Gillette, Wyoming office” to reflect
the narrowed definition of the collective. See
Docket No. 40-1 at 1; see also Docket No. 37 at 10
(limiting conditional certification to “current and
former Equipment Operators and Core Operators assigned to the
Gillette camp”). Additionally, I note four apparent
typographical errors in the Proposed Notice. On page 1, the
notice states that “Your legal rights to participate in
the lawsuit is subject to the choice that you must
now make.” Docket No. 40-1 at 1 (emphasis added). On
page 2, the notice provides an incorrect case number. See
Id. at 2 (identifying case as No.
1:17-cv-01230-PAB-CBS). The correct case number is
1:17-cv-01230-PAB-SKC. On page 3, the notice states that
“[t]he Court will approve the amount of any fees the
attorneys receive from a settlement of
judgment.” Id. at 3 (emphasis added). On pages
3 and 4, the section numbering is incorrect. See Id.
otherwise find the content of the Proposed Notice and manner
of distribution to be proper. It is therefore
that, subject to the modifications set forth above, the
proposed Notice [Docket No. 40-1] is
APPROVED. It is further
that, within twenty-one days of this order, defendant shall
provide to plaintiff's counsel a list of all potential
members of the collective. The list shall include all
available telephone numbers, U.S. Mail addresses, electronic
mail addresses, and dates of employment for the potential
collective action members. It is further
that, within twenty-one days after receiving this list from
defendant, plaintiff shall send the Notice by First Class
U.S. Mail, text (if available), and email (if available) to
the last known mailing address/email address/telephone number
of each of the individuals identified on the above-referenced
list. It is further
that any individuals to whom the Notice is sent shall
“opt-in” by returning the necessary documents to
plaintiff's counsel within ninety days from the date of
the Notice. If notice is sent ...