Zeman v. Twitter, Inc. ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOHN ZEMAN, Case No. 23-cv-01786-SI 8 Plaintiff, ORDER GRANTING IN PART 9 v. PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION OF 10 TWITTER, INC., et al., A COLLECTIVE ACTION 11 Defendants. Re: Dkt. No. 68, 69, 79 12 13 Before the Court is plaintiff’s motion for conditional certification of a collective action. Dkt. 14 No. 68-3. Defendants oppose. Dkt. No. 78. For the forgoing reasons and for good cause shown, 15 the Court hereby GRANTS IN PART plaintiff’s motion. 16 17 BACKGROUND 18 Plaintiff is a former employee of defendant Twitter, Inc. Dkt. No. 50 (“FAC”) ¶ 1. In or 19 about March 2023, Twitter merged with X Corp., and X Corp. “has successor liability for Twitter’s 20 unlawful acts.” Id. ¶ 11. Plaintiff filed suit on his own behalf and on behalf of other Twitter 21 employees age 50 or older across the country who were laid off after Elon Musk purchased Twitter 22 in late October 2022. Id. ¶¶ 1, 3, 18. Plaintiff alleges that this “mass layoff . . . affected well more 23 than half of Twitter’s workforce” and “[m]ost laid off employees were notified on November 4, 24 2022, although some were laid off earlier and many were laid off after that date.” Id. ¶¶ 18, 21. 25 Plaintiff alleges that “decisions regarding which employees would be laid off during the initial 26 layoffs were made under extremely hurried circumstances, with little if any regard given to 27 employees’ job performance, qualifications, experience, and abilities.” Id. ¶ 19. Plaintiff further 1 under close supervision of Musk,” some of whom were brought in from other companies owned by 2 Musk “who did not have much, if any, knowledge about Twitter’s operations.” Id. ¶ 22. Plaintiff 3 asserts claims of disparate impact and disparate treatment age discrimination pursuant to the federal 4 Age Discrimination and Employment Act (“ADEA”) and the New York State Human Rights Law 5 (“NYSHRL”). Id. ¶ 2. 6 Plaintiff initially sought conditional certification of a collective action under the ADEA to 7 provide notice of this action to the following group of individuals: “All Twitter employees across 8 the United States age fifty (50) or older who have lost their jobs since Elon Musk acquired the 9 company.” Dkt. No. 69 at 1. In his reply, plaintiff indicates that he has no objection to limiting the 10 class to individuals age 50 and older who were “laid off” or “terminated” as “part of the November 11 4, 2022, RIF.” Dkt. No. 80 at 1 n.1, 10. Plaintiff indicates that there are roughly 149 employees 12 age 50 or older who were laid off on November 4, 2022. Id. at 1-2; FAC ¶ 27. Plaintiff also indicates 13 that his counsel already represents approximately 2,000 employees laid off following Musk’s 14 acquisition of Twitter, and that plaintiff would exclude from the notice process any employees 15 already represented by his counsel or by other counsel. Dkt. No. 69 at 10 n.1. 16 In support of his motion, plaintiff points to allegations in his FAC about a statistical analysis 17 performed by a labor economist and “ageist comments made by Elon Musk around the time he 18 purchased Twitter.” Dkt. No. 69 at 7; FAC ¶¶ 23-24, 31-33. He also points to deposition testimony 19 from Musk where Musk testified that he “discriminate[d] on the basis of merit and nothing else,” 20 he “would be surprised” if the layoffs had a disparate impact on any protected groups, and he did 21 not have a disparate impact analysis done and “simply asked that we assess excellence and 22 necessity.” Dkt. No. 69, Ex. B at 195:14-196:4. Plaintiff further submits a one-word email from 23 Musk in which Musk responded “[a]pprove” to an email from Twitter’s Vice President of Corporate 24 Finance asking Musk to review and reply “approve” or let them know if he had any questions 25 regarding the “current proposal [] to terminate 3,789 employees on Friday, November 4, 2022 – 26 which represents 51% of the 7,397 population.” Id. Ex. C. Lastly, plaintiff submits a short 27 declaration about his being laid off that does not reference the laying off of any other employees. 1 In support of their positions, defendants submit, among other things, a declaration from 2 Lauren Wegman, Senior Director, People at X Corp. Dkt. No. 78-1 (“Wegman Decl.”). Wegman 3 declares that as of November 4, 2022 there were 32 U.S. employees in the Communications job 4 category and that records show that all 32 of these employees, including plaintiff, were laid off in 5 the November 4 reduction in force (“RIF”). Id. ¶ 3. Plaintiff was the only employee in the 6 Communications department over 50 years old. Id. Wegman further declares that following the 7 acquisition, X offered severance packages with release agreements to many employees who 8 “separated from the company” that include a “general release that covers any employment-related 9 claim against the company.” Id. ¶ 6. Defendants also submit deposition testimony from Musk and 10 four other individuals as well as excerpts of Dr. Killingsworth’s testimony from an arbitration. See 11 Dkt. No. 78-2 (“Berry Decl.”).1 12 13 LEGAL STANDARD 14 The ADEA prohibits employers from “[discharging] any individual or otherwise 15 [discriminating] against any individual with respect to his compensation, terms, conditions, or 16 privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). The ADEA is 17 “enforced in accordance with the powers, remedies, and procedures” of the Fair Labor Standards 18 Act (“FLSA”). 29 U.S.C. § 626(b); Heath v. Google LLC, 345 F. Supp. 3d 1152, 1164 (N.D. Cal. 19 2018). Section 216(b) of the FLSA provides that one or more employees may bring a collective 20 action against any employer on behalf of “themselves and other employees similarly situated.” 29 21 U.S.C. § 216(b). Under this provision, “workers may litigate jointly if they (1) claim a violation of 22 the FLSA, (2) are ‘similarly situated,’ and (3) affirmatively opt into the joint litigation.” Campbell 23 v. City of Los Angeles, 903 F.3d 1090, 1100 (9th Cir. 2018). The FLSA does not define the term 24 “similarly situated” and the Ninth Circuit has yet to interpret this phrase. Heath, F. Supp. 3d at 25 1164; 29 U.S.C. § 216(b); Campbell, 903 F.3d at 1100 (“Given . . . gaps [in the FLSA], much of 26 collective action practice is a product of interstitial judicial lawmaking or ad hoc district court 27 1 discretion.”). However, the Ninth Circuit in Campbell did indicate that “what matters is not just any 2 similarity between party plaintiffs, but a legal or factual similarity material to the resolution of the 3 party plaintiffs’ claims, in the sense of having the potential to advance these claims, collectively, to 4 some resolution.” 903 F.3d at 1115. 5 A majority of courts, including district courts in this circuit, follow a two-step process for 6 determining whether a collective is “similarly situated.” Rabin v. PricewaterhouseCoopers LLP, 7 No. 16-CV-02276-JST, 2018 WL 3585143, at *5 (N.D. Cal. July 26, 2018); see also Campbell, 903 8 F.3d at 1100; Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466-67 (N.D. Cal. 2004). The first 9 step of this two-step approach “considers whether the proposed class should be given notice of the 10 action” based on “the pleadings and affidavits submitted by the parties.” Adams v. Inter-Con Sec. 11 Sys., Inc., 242 F.R.D. 530, 536 (N.D. Cal. 2007). The “sole consequence of a successful motion for 12 preliminary certification is the sending of court-approved written notice to workers who may wish 13 to join the litigation as individuals.” Campbell, 903 F.3d at 1101 (internal quotation marks and 14 citations omitted). “In the second step, the party opposing the certification may move to decertify 15 the class once discovery is complete and the case is ready to be tried.” Adams, 242 F.R.D. at 536. 16 This case is at the first step, where the court must evaluate whether plaintiff has met his 17 burden of showing that the “proposed lead plaintiffs and the proposed collective action group are 18 ‘similarly situated.’” Leuthold, 224 F.R.D. at 466. The standard for certification at step one is 19 lenient and “typically results in certification.” Russell v. Wells Fargo & Co., No. C 07-3993 CW, 20 2008 WL 4104212, at *2 (N.D. Cal. Sept. 3, 2008); see also Adams, 242 F.R.D. at 536. At this 21 stage, “the district court’s analysis is typically focused on a review of the pleadings but may 22 sometimes be supplemented by declarations or other limited evidence.” Campbell, 903 F.3d at 23 1109. “The level of consideration is . . . sometimes articulated as requiring substantial allegations, 24 sometimes as turning on a reasonable basis, but in any event loosely akin to a plausibility standard, 25 commensurate with the stage of the proceedings.” Id. at 1109. District courts have required “little 26 more than substantial allegations, supported by declarations or discovery, that the putative class 27 members were together the victims of a single decision, policy, or plan and a showing that plaintiffs 1 5:21-cv-00515-BLF, 2021 WL 2322322, at *2 (N.D. Cal. June 7, 2021) (citations and internal 2 quotation marks omitted); see also Adams, 242 F.R.D. at 536. Stated differently, plaintiffs must 3 show that there is “‘some identifiable factual or legal nexus [that] binds together the various claims 4 of the class members in a way that hearing the claims together promotes judicial efficiency and 5 comports with the broad remedial policies underlying the FLSA.’” Rabin, 2018 WL 3585143, at 6 *5 (quoting Russell, 2008 WL 4104212, at *3). 7 “The plaintiff need not conclusively establish that collective resolution is proper, because a 8 defendant will be free to revisit this issue at the close of discovery.” Kincheloe, 2021 WL 2322322, 9 at *3. However, unsupported allegations of ADEA violations are not sufficient to meet plaintiff’s 10 burden. Id. (citation omitted). “Determining whether a collective action is appropriate is within the 11 discretion of the district court.” Leuthold, 224 F.R.D. at 466. 12 13 DISCUSSION 14 I. Whether Conditional Certification Should Be Granted 15 As an initial matter, the parties disagree about what weight should be given to the Wegman 16 declaration. Defendants repeatedly highlight that plaintiff’s entire department (Communications) 17 was eliminated during the November 4, 2022 RIF, whereas employees in other areas of the company 18 were subject to various processes to select who would be laid off. Dkt. No. 78 at 1-2; Wegman 19 Decl. ¶ 3. “[F]ederal courts are in agreement that evidence from the employer is not germane at the 20 first stage of the certification process, which is focused simply on whether notice should be 21 disseminated to potential claimants.” Sanchez v. Sephora USA, Inc., No. 11-03396 SBA, 2012 WL 22 2945753, at *4 (N.D. Cal. July 18, 2012); see also Heath, 215 F. Supp. 3d at 854-55 (holding that 23 “Google’s argument regarding individualized inquiries would be more appropriately addressed in a 24 motion to decertify”). Furthermore, the “fact that a defendant submits competing declarations will 25 not as a general rule preclude conditional certification.” Harris v. Vector Marketing Corp., 716 F. 26 Supp. 2d 835, 838 (N.D. Cal. 2010). Although the fact that the entire Communications department 27 was laid off, if proven, may weaken plaintiff’s individual case, the Court finds that this challenge is 1 decertify the collection action after the parties have undertaken discovery in this case specifically. 2 See Kincheloe, 2021 WL 2322322, at *3 (noting that it is at the second stage that courts make a 3 “factual determination about whether plaintiffs are actually similarly situated by weighing various 4 factors”). Furthermore, courts have held that the fact that discharged employees held a variety of 5 positions or were members of different departments does not preclude a finding that they are 6 similarly situated for purposes of conditional certification. See, e.g., Rodolico v. Unisys Corp., 199 7 F.R.D. 468, 483 (E.D.N.Y. 2001) (rejecting the defendants’ argument that conditional certification 8 shouldn’t be granted because the plaintiffs came from 49 different departments, reasoning that “in 9 order to be ‘similarly situated,’ the plaintiffs do not have to perform the same job in the same 10 location as long as there is a discriminatory policy common to all”). 11 The parties dispute the application of numerous decisions from district courts around the 12 country in support of their respective positions about whether conditional certification is appropriate 13 here. The cases the parties cite involve a large variety of factual scenarios and varying specificity 14 of allegations. Defendants extensively critique plaintiff’s allegations and evidence. Although some 15 of these critiques may be persuasive, these arguments go to the merits of plaintiff’s claims and do 16 not defeat conditional certification. This is not the stage to weigh the evidence, and plaintiff has 17 shown beyond mere speculation that Twitter may have discriminated against older employees in the 18 November 4, 2022 RIF, which constitutes a single decision that affected all members of the proposed 19 class. Plaintiff has likewise shown beyond mere speculation that he is “generally comparable” to 20 those he seeks to represent given that the RIF was imposed on all proposed collective action 21 members. A collective action “may be certified [] if the named plaintiff can show that his position 22 was or is similar to those of the absent class members”; the plaintiff need not show that their 23 positions are or were identical. Rabin, 2018 WL 3585143, at *5 (quoting Edwards v. City of Long 24 Beach, 467 F. Supp. 2d 986, 990 (C.D. Cal. 2006)) (emphasis in original). The Court further finds 25 that the extent to which members of the proposed action will rely on common evidence to prove the 26 alleged discrimination weighs in favor of a collective action here. See Rodolico, 199 F.R.D. at 483. 27 Plaintiff’s allegations will be subject to more scrutiny at the second step, but the Court concludes 1 III. Whether the Scope of the Proposed Class is Appropriate 2 Defendants contend that any conditionally certified collective should be limited to the 3 Communications Department in which plaintiff worked and should not include employees 4 terminated for cause or performance, employees who signed dispute resolution agreements, or 5 employees who signed severance agreements. Dkt. No 78 at 19-21. Plaintiff confirmed at the 6 August 16, 2024 hearing that the collective will not include individuals terminated for cause or 7 performance. In concluding that plaintiff has made a sufficient showing that he is similarly situated 8 to the proposed collective, the Court has already determined that the scope of the proposed collective 9 should extend to all employees involuntarily terminated as a result of the November 4, 2022 RIF, 10 not just those in the Communications Department. The Court turns to the remaining arguments 11 below. 12 The Ninth Circuit has not considered whether FLSA notice should be provided to individuals 13 who signed arbitration agreements. Droesch v. Wells Fargo Bank, N.A., No. 20-cv-06751-JSC, 14 2021 WL 2805604, at *2 (N.D. Cal. July 6, 2021). The Seventh Circuit, in addressing the “issue of 15 first impression” of “whether a court may authorize notice to individuals who, according to the 16 defendant, entered valid arbitration agreements waiving their right to join the action” has ruled that 17 “a court may not authorize notice to individuals whom the court has been shown entered mutual 18 arbitration agreements waiving their right to join the action” and the court “must give the defendant 19 an opportunity to make that showing.” Bigger v. Facebook, Inc., 947 F.3d 1043, 1049-50 (7th Cir. 20 2020). The Fifth Circuit has similarly held that “district courts may not send notice to an employee 21 with a valid arbitration agreement unless the record shows that nothing in the agreement would 22 prohibit that employee form participating in the collective action.” In re JPMorgan Chase & Co., 23 916 F.3d 494, 502 (5th Cir. 2019). Under this Fifth Circuit law, “if there is a genuine dispute as to 24 the existence or validity of an arbitration agreement, an employer that seeks to avoid a collective 25 action, as to a particular employee, has the burden to show, by a preponderance of the evidence, the 26 existence of a valid arbitration agreement for that employee” and the court “should permit 27 submission of additional evidence, carefully limited to the disputed facts, at the conditional- 1 Defendants have cited no cases from this Circuit where courts have followed the approaches 2 of the Seventh or Fifth Circuits. In Droesch, a court in this District gave the defendant “the 3 opportunity to present evidence in support of its argument that 27,000 of the employees in the 4 collective action signed valid and enforceable arbitration agreements” on a motion for 5 reconsideration, but only after the Court had granted the defendant’s motion to compel arbitration 6 of the plaintiff and certain opt-in plaintiffs’ claims and had ruled on the enforceability of the 7 arbitration agreement. 2021 WL 2805604, at **1, 3. In Sandbergen v. Ace American Insurance 8 Co., the plaintiff did not dispute the enforceability of the arbitration agreements and the court 9 “merely [held] that notice is not necessary or appropriate for a plaintiff who concedes both the 10 validity of an arbitration agreement and the inability to litigate their claims in this collective action.” 11 No. 18-cv-04567-SK, 2019 WL 13203944, at **3-4 (N.D. Cal. June 17, 2019). The court 12 specifically indicated that it need not decide whether it would be permissible for a court to evaluate 13 the arbitration agreements as part of a determination of whether notice should be sent because that 14 issue was not before the court. Id. Neither of these circumstances is present here. 15 In Geiger v. Charter Communications, the court, in a motion for reconsideration, held that 16 the case’s “uncommon nature necessitate[d] the redefinition of the collective action to . . . prohibit 17 notice to, potential plaintiffs subject to an arbitration agreement.” No. CV 18-158-DMG (GJSx), 18 2019 WL 8105374, at *4 (C.D. Cal. Sept. 9, 2019). The defendants had provided the arbitration 19 agreements and “explained the uniform process by which dispatchers would have acknowledged 20 and agreed to them” and plaintiffs “mounted no challenge to the agreements’ language or the 21 acceptance process” such that the court was “left to conclude that the agreements themselves are 22 more likely than not enforceable.” Id. The court further reasoned that it appeared that “even if the 23 Court were to permit notice first and invite an omnibus motion to enforce the arbitration agreements 24 after opt-in plaintiffs have chosen to participate, those plaintiffs potentially could be obligated to 25 pay Defendants’ fees and costs if the Court decided to enforce the arbitration agreements.” Id. at 26 *6. The plaintiffs had “not put forth any substantive challenge to the provision’s validity and 27 enforceability to this point,” and the Court reasoned that “[s]ubjecting those potential plaintiffs to 1 manage a collective action.” Id. at *6. Plaintiff’s counsel asserted at the August 16, 2024 hearing 2 that these concerns about fees and costs are not present here. 3 Numerous courts in this District have rejected the arguments defendants raise here. For 4 example, in Herrera v. EOS IT Management Solutions, Inc., the court held that “[a]lthough it may 5 be true that these individuals will ultimately be unable to participate in this case” it was “not 6 appropriate to exclude potential opt-in members from the conditionally certified collective action at 7 the notice stage” because the focus of the Court’s inquiry is “whether there is a common policy or 8 plan that connects the claims of the putative collective action.” No. 20-CV-01093-LHK, 2020 WL 9 7342709, at *9 (N.D. Cal. Dec. 14, 2020). The defendants had similarly pointed to the Fifth Circuit’s 10 decision in In re JPMorgan Chase & Co., and the court noted that the Ninth Circuit has not yet 11 followed this decision, and that “district courts in this circuit have continued to send notice of a 12 pending collective action to potential members who may ultimately be unable to join the action 13 because of a valid arbitration agreement.” Id. at *10 (citing examples); see also Conde v. Open 14 Door Mktg., LLC, 223 F. Supp. 3d 949, 968 (N.D. Cal. 2017) (noting that these inquiries are reserved 15 for the second stage of the certification process and that the fact that there is an arbitration agreement 16 goes to defendants’ defenses, not the common policy) (citing further examples); Costa v. Apple, 17 Inc., No. 23-cv-01353-WHO, 2023 WL 8101980, at **5, 7 (N.D. Cal. Nov. 21, 2023) (declining to 18 follow Bigger and In re JP Morgan Chase when “courts in this circuit have consistently determined 19 that the mere possibility of mandatory arbitration should not prevent the conditional certification of 20 a collective action”). This Court similarly concludes that defendants’ assertion that some members 21 of the putative collective action may ultimately be barred from joining this case by arbitration 22 agreements does not prevent the Court from conditionally certifying a collective action at this notice 23 stage. The Court further finds that these same principles should apply with respect to individuals 24 who may have signed severance agreements that contained releases, given the lack of authority cited 25 to the contrary.2 26 2 The cases defendants cite with respect to the severance agreements involve claims waived 27 through prior settlement agreements or a determination of whether the Rule 23 typicality 1 IV. Whether the Proposed Notice Is Appropriate 2 Once a collective class has been conditionally certified, potential collective members are 3 entitled to “accurate and timely notice concerning the pendency of the collective action, so that they 4 can make informed decisions as to whether to participate.” Hoffmann–La Roche Inc. v. Sperling, 5 493 U.S. 165, 170 (1989). The Court has discretionary authority to monitor the preparation and 6 distribution of the notice to “ensure that it is timely, accurate, and informative.” Id. at 172. In 7 exercising this discretionary authority, “courts must take care to avoid even the appearance of 8 judicial endorsement of the merits of the action.” Id. at 174. Plaintiffs submit a proposed notice. 9 See Dkt. No. 69, Ex. D. Defendants object to the proposed notice for a host of reasons. The Court 10 orders as follows: 11 1. Plaintiff asks the Court to order defendants to provide his counsel with the names, last 12 known mailing and email addresses, and telephone numbers for all potential opt-in 13 plaintiffs. Dkt. No. 69 at 10. Defendants argue that this contact information should issue 14 only to a third-party administrator. Dkt. No. 78 at 22. Plaintiff responds that this would 15 create unnecessary expense for both parties. Dkt. No. 80 at 12. District courts have 16 reached different outcomes on this issue. See Noemi Russo v. Joamar, Inc. et al., No. 17 LA CV 20-3939 JAK (MRWx), 2021 WL 4773185, at *8 (C.D. Cal. Mar. 8, 2021). The 18 Court finds appointment of an administrator an unnecessary expenditure at this stage, 19 and defendants have not adequately articulated what “privacy concerns and solicitation 20 risks” are present here. See Dkt. No. 78 at 22; Bonner v. SFO Shuttle Bus Co., No. C13- 21 1606 TEH, 2013 WL 6139758, at *4 (N.D. Cal. Nov. 21, 2013). Plaintiff’s counsel will 22 be responsible for disseminating notice. 23 24 2. Defendants argue that the Court should not authorize notice by text message nor permit 25 reminder notices. Dkt. No. 78 at 22. The Court finds that both text message notice and 26 reminder notices would not be overly intrusive and would enhance the chances of 27 1 reaching the necessary individuals. Courts commonly authorize both forms of 2 communication. The parties are ordered to submit an appropriate protective order 3 specifying that potential members’ information is to be used and distributed only for 4 effecting notice of this litigation. Plaintiffs are also ordered to provide draft language of 5 both the text message and reminder notices for approval by the Court. 6 3. Defendants assert that the notice should inform potential plaintiffs of their right to choose 7 their own counsel. “Suggesting that a plaintiff may opt in and bring her own lawyer 8 along would lead to confusion, inefficiency, and cumbersome proceedings.” Adams v. 9 Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 541 (N.D. Cal. 2007). If a collective member 10 wishes to have their own lawyer, they need not opt in; they can hire their own lawyer 11 and proceed with their own action. The Court will not require that the notice include an 12 option for potential opt-in plaintiffs to choose their own counsel. 13 14 4. Defendants contend that the proposed notice fails to describe the opt-ins’ potential 15 discovery and financial obligations. Dkt. No. 78 at 23. The notice currently states: “You 16 may also be asked to be a witness or to provide evidence in the case, although not all 17 individuals who submit a consent form will be required to do so.” The Court orders 18 plaintiff to modify this sentence to state: While this lawsuit is pending, you may be 19 required to respond to written questions, appear for depositions under oath, produce 20 documents, and/or testify. 21 5. Defendants contend that the proposed notice must explain that X “denies all plaintiff’s 22 allegations and any liability to him or any other person and denies that his claims may 23 be maintained as a collective or class action.” Dkt. No. 78 at 23-24. This is a reasonable 24 request that the Court will grant. 25 26 6. Defendants contend that the proposed notice is “misleading” because it omits that opt- 27 ins are bound by unfavorable results. Dkt. No. 78 at 24. The Court orders plaintiff to 1 do participate in the case, you will be bound by any ruling entered by the court, favorable 2 or unfavorable, and by any settlement reached by the parties. 3 7. Defendants contend that the notice must inform individuals of the potential 4 consequences of the arbitration and severance agreements they may have signed. Dkt. 5 No. 78 at 24. The Court agrees that the notice should discuss potential issues concerning 6 how arbitration agreements and releases may potentially affect opt-in plaintiffs. The 7 Court orders the parties to agree to a provision about arbitration and releases in severance 8 agreements that would assist potential opt-in plaintiffs to make an informed decision 9 about joining the case. 10 11 8. Defendants contend the three bolded references to court authorization in the proposed 12 should be deleted. Dkt. No. 78 at 24. Including the language that the notice is court- 13 authorized is correct and appropriate, and the notice further indicates that there has not 14 been a decision by the Court on the merits. 15 9. Defendants contend that the notice should “equally reference Defendant’s contact 16 information, as putative collective members have a right to communicate with Defendant 17 or its counsel should they so choose.” Dkt. No. 78 at 24. District courts have gone both 18 ways on this issue. Here, the Court sees no reason to list defense counsel on the notice. 19 Defense counsel do not play a role in managing the distribution of notice or the gathering 20 of consent forms. Including additional lawyers only creates the potential for confusion. 21 22 10. Lastly, plaintiff seeks 90 days to distribute notice to putative class members, while 23 defendants argue only 60 days is necessary. Defendants’ objection offers no independent 24 reason why the period should be reduced to 60 days, and courts in this Circuit have 25 approved both 60 and 90-day opt-in periods. See Williams v. U.S. Bank Nat. Ass’n, 290 26 F.R.D. 600, 614 (E.D. Cal. 2013) (collecting cases). The Court will permit a 90-day opt- 27 in period. 1 V. Associated Administrative Sealing Motions 2 Plaintiff filed an administrative motion to consider whether another’s party’s material should 3 be sealed with respect to two exhibits to his motion for conditional certification. Dkt. No. 68. 4 Defendants submitted a response, indicating that they seek to seal the financial information in 5 Exhibit C of plaintiff’s motion because it “contains confidential financial information related to X’s 6 labor costs.” Id. at 1-2. Defendants do not seek to seal Exhibit B or the portions of plaintiff’s motion 7 corresponding to Exhibits B or C. Id. at 1. Exhibit B contains excerpts from the deposition of Elon 8 Musk in a related arbitration and Exhibit C is a copy of an email chain with Musk. Id. at 1. The 9 Court finds that there is good cause to seal the financial information in Exhibit C and grants the 10 administrative motion to seal as narrowed by defendants. Defendants are ordered to provide a 11 narrowly redacted copy of Exhibit C and plaintiff is ordered to file a version of the motion with 12 exhibits that contains only these narrowed redactions by September 12, 2024. 13 Plaintiff also filed an administrative motion to consider whether another’s party’s material 14 should be sealed with respect to one exhibit to his reply to his motion for conditional certification. 15 Dkt. No. 79. This exhibit, Exhibit A, is another excerpt from the deposition of Musk in the same 16 related arbitration. Defendants did not submit a response to this motion. Given that defendants did 17 not file a response and do not seek to seal excerpts of the same deposition testimony in Exhibit B to 18 plaintiff’s motion, the Court denies this administrative sealing motion. 19 20 21 22 23 24 25 26 /// 27 /// 1 CONCLUSION 2 The Court certifies the following collective for notice purposes: All Twitter employees 3 across the United States age fifty (50) or older who were involuntarily terminated as a result of the 4 || November 4, 2022 layoffs that occurred after Elon Musk acquired the company. The parties are 5 || directed to meet and confer and submit a revised notice to the court within 21 days along with the 6 || protective order referenced in (2) of Section IV. Plaintiff's counsel is directed to concurrently 7 submit draft text for the text message and reminder notices. After the Court approves the finalized 8 notice, the 90-day notice period will run from the time the notice is sent. 9 10 IT IS SO ORDERED. ll Dated: August 28, 2024 Site WU tee SUSAN ILLSTON 13 United States District Judge © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28