United States District Court, District of Columbia
CHERYL C. BRADLEY, et al., Plaintiffs,
v.
VOX MEDIA, INC. d/b/a SB NATION, Defendant.
MEMORANDUM OPINION
ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE.
Plaintiffs
survived a motion to dismiss and now move to certify
conditionally a class of similarly-situated past and current
Site Managers and Managing Editors who worked for Defendant
Vox Media, Inc., d/b/a SB Nation. The Fair Labor Standards
Act of 1938 (FLSA), 29 U.S.C. § 201 et seq., permits
conditional class certification, followed by discovery and a
potential further motion to modify or decertify the class.
Vox Media opposes conditional certification, arguing that
Plaintiffs have failed adequately to show that the proposed
class members are similarly situated. Vox Media prematurely
requests this Court to conduct a stringent analysis of the
potential class. The Court will grant Plaintiffs' motion
to certify conditionally a class of “all current or
former Site Managers and Managing Editors who performed work
in the United States for Vox Media, Inc. in its SB Nation
business division within the past three years” and
authorize notice to be sent to potential class members. After
notice and discovery, Vox Media may move to modify or
decertify the class and reintroduce its argument that the
class members are not similarly-situated.
I.
BACKGROUND
The
Court discussed the facts in detail in its memorandum opinion
denying the motion to dismiss and the facts will only briefly
be readdressed here. See Bradley v. Vox Media, Inc.,
320 F.Supp.3d 178, 179-81 (D.D.C. 2018). Vox Media is a
corporation that maintains and operates approximately 319
sports websites through its business division, SB Nation.
First Am. Collective Action Compl. (Am. Compl.) [Dkt. 16]
¶ 11. Each website is maintained by a Site Manager. See,
e.g., Id. ¶¶ 14, 23, 33. Vox Media manages
its Site Managers through Blogger Agreements and direct
supervision by League Managers. Id. ¶¶ 13,
70-73. Each Blogger Agreement outlines when and how often
Site Managers must create new content, specifies that Vox
Media maintains the authority to edit or remove such content,
and includes a non-compete clause. Id. ¶¶
53-59.
Plaintiffs
Cheryl Bradley, John Wakefield, and Maija Varda were Site
Managers for three different Vox Media websites, Mile High
Hockey, Through it All Together, and Twinkie Town,
respectively. See Id. ¶¶ 14, 23, 33. The
relationship between each Plaintiff and Vox Media was
governed by a Blogger Agreement. See Id.
¶¶ 13, 22, 32. Plaintiffs allege that, as Site
Managers, they were required to watch and report on breaking
news, recruitment, and games for their assigned teams. See
Id. ¶¶ 16, 18-19, 27-29, 35-38. Although
Plaintiffs worked between 30 and 60 hours a week, they were
each paid a flat monthly fee, rather than hourly, and were
not paid overtime. See Id. ¶¶ 20-21,
30-31, 40-41.
Plaintiffs
allege that the proposed class members are similarly situated
because they were all “misclassified as independent
contractors, worked pursuant to Vox's . . . common pay
practices and, as a result of such practices, were not paid
the full and legally mandated minimum wage or overtime
premiums for hours worked over forty (40) during the
workweek.” Id. ¶ 117. The “common
pay practices” identified by Plaintiffs include: flat
monthly rates, compensation not dependent on the amount of
content created, and the inability of Site Managers to engage
in advertisement agreements or otherwise benefit from
advertising revenue on their sites. Id. ¶¶
68-69, 72-75.
On
October 23, 2017, Plaintiffs moved to certify the class
conditionally. See Pls.' Mot. for Conditional Cert. [Dkt.
17]; Mem. of Law in Supp. of Pls.' Mot. for Conditional
Cert. (Mem.) [Dkt. 17-1]. The motion was held in abeyance
pending the Court's ruling on Defendant's motion to
dismiss. The Court denied Vox Media's motion to dismiss
on September 4, 2018, and briefing was completed on the
motion to conditionally certify the class. See Def. Vox
Media, Inc.'s Opp'n to Pls.' Mot. for Conditional
Cert. (Opp'n) [Dkt. 33]; Pls.' Reply Mem. of Law in
Further Supp. of Mot. for Conditional Cert. [Dkt. 35]. The
motion is ripe for review.
II.
LEGAL STANDARD
The
Fair Labor Standards Act provides employees with a private
right of action to sue their employers for unpaid minimum
wage and unpaid overtime compensation. 29 U.S.C. §
216(b). “[B]ecause individual wage and hour claims
might be too small in dollar terms to support a litigation
effort, ” Chase v. AIMCO Props., L.P., 374
F.Supp.2d 196, 198 (D.D.C. 2005), the FLSA permits employees
to sue on “behalf of himself or themselves and other
employees similarly situated.” 29 U.S.C. § 216(b).
A collective action under the FLSA does not require
certification under Federal Rule of Civil Procedure 23 and
Plaintiffs are not required to show numerosity, commonality,
and typicality. See Blount v. U.S. Sec. Assocs., 945
F.Supp.2d 88, 92 (D.D.C. 2013). Judges on this Bench have
uniformly applied a two-stage certification process.
“At the first stage, the plaintiffs must make a
‘modest factual showing sufficient to demonstrate that
they and potential plaintiffs together were victims of a
common policy or plan that violated the law.'”
Id. (quoting Hunter v. Sprint Corp., 346
F.Supp.2d 113, 117 (D.D.C. 2004)). Once that showing is made,
the proposed class is certified conditionally in order to
“facilitate notice of the collective action to
potential plaintiffs to give them the opportunity to opt in
to the litigation.” Id. Stage two follows the
opt-in process and discovery and is when “the defendant
may move to decertify the class based on the evidentiary
record developed during the discovery period.”
Id. at 93. At that point, with a factual record and
a motion from a defendant, the Court makes “a factual
determination [as to] whether the plaintiffs who have opted
in are in fact ‘similarly situated' to the named
plaintiffs.” Id. If the class survives this
second stage, the case proceeds to trial as a class. If the
class does not survive the second stage, then “the
opt-in plaintiffs are dismissed without prejudice, and the
named plaintiffs proceed to trial.” Id.
III.
ANALYSIS
Plaintiffs
move to certify conditionally a class of “all current
or former Site Managers and Managing Editors who performed
work in the United States for Vox Media, Inc. in its SB
Nation business division within the past three years”
(hereinafter “the proposed Class”), Mem. at 1,
and to require Vox Media to produce “the names, last
known addresses, telephone numbers, and email addresses of
all potential members of the [proposed] Class” to
permit Plaintiffs to send notice to all potential class
members. Id. Vox Media argues that Plaintiffs fail
to show that potential class members are substantially
similar to the Plaintiffs and provides declarations from a
handful of Site Managers that it believes are significantly
different from the Plaintiffs themselves. Additionally, Vox
Media disputes the propriety of notifying potential class
members via telephone and the use of reminder notices.
A.
Conditional Certification
Plaintiffs
allege that Vox Media uses a common policy of misclassifying
Site Managers and Managing Editors as independent contractors
to avoid paying minimum wage and overtime wages. Am. Compl.
¶¶ 68-75, 108-10, 117-18. Plaintiffs acknowledge
that there may be circumstances unique to each of the class
members, but stress that stage one involves only conditional
certification and that their allegation that a common policy
affected every putative class member is sufficient. Mem. at
12-13 (citing Hallissey v. Am. Online, Inc., No.
99-3785, 2008 WL 465112, at *2 (S.D.N.Y. Feb. 19, 2008)).
Plaintiffs argue further that Vox Media's use of
“strikingly similar” Blogger Agreements which
classify Site Managers as independent contractors,
demonstrates the existence of a common policy, thereby
meeting the “modest factual showing” necessary to
warrant conditional certification. Id. at 14.
In its
opposition, Vox Media focuses on demonstrating that potential
members of the proposed class are not similarly situated, as
shown by declarations of six Site Managers that demonstrate
the variety of circumstances. See Decl. of James Bankoff
[Dkt. 33-1]; Decl. of Christopher Gates [Dkt. 33-2]; Decl. of
Rebecca Lawson Gennaro [Dkt. 33-3]; Decl. of Taylor Baird
[Dkt. 33-4]; Decl. of Timothy Riordan [Dkt. 33-5]; Decl. of
Stephen Cohn [Dkt. 33-6]. Vox Media asks the Court to use the
“economic ...