United States District Court, D. Arizona
Douglas L. Rayes United States District Judge.
have filed a motion for conditional class certification and
court-supervised notice of pending collective action. (Doc.
115.) The motion is fully briefed and neither party requested
oral argument. For the reasons below, the motion is granted.
2015, Plaintiff Terry Coyle brought this collective action on
behalf of himself and other similarly situated Distributors
against Defendants Flowers Foods Inc. (Flowers) and its
subsidiary, Holsum Bakery Inc. (Holsum), alleging violations
of the Fair Labor Standards Act (FLSA) and breach of
fiduciary duties. (Doc. 1.) On February 4, 2016, Coyle filed
an amended complaint dropping his fiduciary duties claim and
adding claim for violation of the Arizona Wage Law. (Doc.
72.) In the following months, Craig Coppens, Albert Younan,
and David Petch filed consent forms jo ining the lawsuit as
opt-in plaintiffs. (Docs. 127-1; 169-1; 179-1.)
are in the wholesale bakery business and distribute their
bakery products through a “centralized network of
communication, distribution, and warehousing
facilities.” (Doc. 72, ¶¶ 1, 10.) Defendants
integrate “Independent Distributors” into the
system to “deliver fresh baked goods and certain cake
products to Defendants' customers.” (Id.,
¶ 2.) Distributors “stock the products on store
shelves and assemble promotional displays designed and
provided by Defendants.” (Id.) Plaintiffs
consist of four named Distributors that deliver
Defendants' bakery products to Defendants' customers.
Distributors, Plaintiffs arrive early in the morning to load
their vehicles with Defendants' products and deliver the
products to Defendants' customers “at the time and
place specified by Defendants.” (Id.,
¶¶ 17, 18.) All Distributors must sign a
Distribution Agreement, which sets forth the terms of the
relationship, “has no specific end date[, ] and can be
terminated by either party at any time with limited
notice.” (Id., ¶ 19.) The Distribution
Agreement provides Defendants the ability to extend credit to
their customers, set pricing terms, and control
“virtually all terms of the [customer]
relationship.” (Id., ¶ 21.) “The
result is that Distributors' job duties and ability to
earn income is tied directly to the sale and promotion of
products outside of their control.” (Id.,
¶ 24.) Distributors typically work 50-55 hours during
the seven-day workweek. (Id., ¶ 48.) They
“must strictly follow Defendants' instructions and
adhere to the pricing, policies, and procedures negotiated
between Defendants and their retailer-customers.”
(Id., ¶ 30.) Plaintiffs allege that Defendants
direct and control them as Independent Distributors as if
they are employees but wrongfully classify them as
independent contractors, denying them the benefits and
protections afforded by the FLSA and the Arizona Wage Law.
(Id., ¶ 49.)
now move for conditional certification of the following
collective action under the FLSA:
All persons who are or have performed work as Distributors
for Defendants under a “Distributor Agreement”
with Holsum Bakery, Inc. or a similar written contract that
they entered into during the period commencing three years
prior to the commencement of this action through the close of
the Court-determined opt-in period and who file a consent to
join this action pursuant to 29 U.S.C. § 216(b).
(Doc. 115 at 2.) The collective action is limited to
Distributors in Arizona. It seeks unpaid overtime
compensation and a declaration that the Distributors are
employees entitled to the protections of the FLSA and Arizona
laws. (Doc. 72, ¶¶ 73-76.)
FLSA prohibits covered employers from employing any employees
“for a workweek longer than forty hours unless such
employee receives compensation for his employment in excess
of the hours above specified at a rate not less than one and
one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1). “Any
employer who violates the provisions of . . . section 207 . .
. shall be liable to the employee or employees affected in
the amount of . . . their unpaid overtime
compensation[.]” Id. § 216(b). A a
collective action to recover these damages may be brought
“against any employer . . . by any one or more
employees for and in behalf of himself or themselves and
other employees similarly situated.” Id.
Employees not named in the complaint who wish to join the
action must give their consent in writing to the court in
which the action is brought. Id.
216(b) does not define ‘similarly situated, ' and
the Ninth Circuit has not construed the term.”
Colson v. Avnet, Inc., 687 F.Supp.2d 914, 925 (D.
Ariz. 2010). Although courts in other circuits have taken
different approaches in this determination, “district
courts within the Ninth Circuit generally follow the
two-tiered or two-step approach for making a collective
action determination.” Id.; see also
Villarreal v. Caremark LLC, No. Cv-14-00652-PHX-DJH,
2014 WL 4247730, at *3 (D. Ariz. Aug. 21, 2014) (“The
majority of courts, including those within the District of
Arizona, have adopted the two-tiered approach in deciding
whether to grant FLSA collection action status.”
(internal quotations and alterations omitted)). Under this
the court determines, on an ad hoc case-by-case basis,
whether plaintiffs are similarly situated. This requires the
court to first make an initial ‘notice stage'
determination of whether plaintiffs are similarly situated.
At this first stage, the court requires nothing more than
substantial allegations that the putative class members were
together the victims of a single decision, policy, or plan.
If a plaintiff can survive this hurdle, the district court
will conditionally certify the proposed class and the lawsuit
will proceed to a period of notification, which will permit
the potential class members to opt-into the lawsuit. Once the
notification period ends, the Court moves on to the second
step of the certification process. At the second step, in
response to a motion to decertify the class filed by the