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Zajac v. Red Wing, LLC

United States District Court, D. South Carolina, Charleston Division

October 4, 2016

LAUREN ZAJAC, on behalf of herself and all others similarly situated, Plaintiff,
v.
RED WING, LLC d/b/a RED'S ICE HOUSE; CECIL CROWLEY, individually; DIANNE CROWLEY, individually; and JOHN DOES 1-10, individually, Defendants.

          ORDER FOR CONDITIONAL CLASS CERTIFICATION AND TO AUTHORIZE NOTICE TO PUTATIVE CLASS MEMBERS

          PATRICK MICHAEL DUFFY, United States District Judge

         This action came before this court on a Consent Motion (ECF 23) filed by Plaintiff, Lauren Zajac (“Zajac”), on behalf of herself and all others similarly situated, including all opt-in Plaintiffs, (collectively, “Plaintiffs”), by and through their counsel, and with the consent of the Defendants Red Wing, LLC d/b/a Red's Ice House (“Red's”); Cecil Crowley (“C. Crowley”); and Dianne Crowley (“D. Crowley”), by and through their counsel, [1] seeking an Order of Conditional Collective Action Certification and to Authorize Notice to Putative Collective Action Members, pursuant to section 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216. (Reds, C. Crowley, D. Crowley, and John Does 1-10 collectively “Defendants”) (Plaintiffs and Defendants jointly “Parties”).

         The Parties respectfully request this Honorable Court to order the following:

         1. Conditional certification of this action as a collective action under 29 U.S.C. § 216(b).

         2. The Putative Class shall be defined as: “All current and former servers and bartenders of Red's who were paid a direct, or hourly, rate less than the statutory minimum wage of seven and 25/100 ($7.25) per hour and were required to participate in the tip pool.” The putative class shall be limited to those servers and bartenders who meet the foregoing definition and were employed within the prior three years of the mailing of the notice, plus the length of time of the agreed “Tolling of the Statute of Limitations” as noted in Paragraph 16.

         3. The Notice and Consent (“Notice”)[2] (ECF 23-1) is appropriate to provide notice to the Putative Class Members (“Members”), via U.S. Mail, and for allowing Members to opt-in, or join, the class. The mailing envelope shall have a return address as follows:

Red's Lawsuit Important Notice of Your Legal Rights PLEASE OPEN & READ P.O. Box 26170 Santa Ana, CA 92799

         Enclosed, with the Notice, there will be a self-addressed, postage-paid envelope using the name and mailing address of Plaintiffs' counsel for both the address and return address.

         4. The Email Notice (ECF 23-2) is appropriate for sending notice to Members via email. The subject line of the email shall read: Red's Lawsuit - Please Read.

         5. The Text Message Notice Via Cell Phone (ECF 23-3) is appropriate for sending notice to Members via text message, if the conditions outlined below occur.

         6. Notice shall be authorized to Members for a thirty (30) day period of time. Members will have thirty (30) days from the date of the Notice to return their Consent form.[3]Timeliness will be determined based upon the date that the Consent is post-marked or an email is sent with the completed “Consent to Join.” 7. The Parties shall use the services of Third Party Administrator, Simpluris, Inc. (“TPA”), with Case Manager Stephen Gomez, to handle distribution of the various notices. Defendants shall pay all fees and costs of the TPA.

         8. Within five (5) calendar days[4] of the entry of this Order, Defendants shall provide, in electronic format, if available, the TPA, for all Members, [5] the following information:

(a) Names;
(b) Latest mailing address on file determined from payroll ...

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