Bradley v. Vox Media, Inc..

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
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CHERYL C. BRADLEY, et al., )
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Plaintiffs, )
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v. ) Civil Action No. 17-1791 (RMC)
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VOX MEDIA, INC. d/b/a SB NATION, )
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Defendant. )
_________________________________ )
MEMORANDUM OPINION
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.
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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.”
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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
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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
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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 realities test” to determine if proposed class
members are substantially similar enough to permit conditional certification. Opp’n at 10.
Vox Media urges the Court to go beyond the purpose and needs of the first stage
of certification in FLSA cases. Plaintiffs need show only that the identified collective contains
“potential plaintiffs who may be similarly situated to the named plaintiffs with respect to whether
a FLSA violation has occurred.” Freeman v. Medstar Health Inc., 187 F. Supp. 3d 19, 29
(D.D.C. 2016) (quotation omitted) (emphasis in original). After meeting that low hurdle, notice
is sent to determine if those similar potential plaintiffs exist. “[I]t is, therefore, not necessary
to . . . require proof that those potential plaintiffs are, actually, similarly situated before those
potential plaintiffs even identify themselves.” Id. The economic realities test proposed by Vox
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Media may well be the measure to determine if Site Managers were properly categorized as
independent contractors rather than as employees but there are insufficient facts to make that
decision now.
“Plaintiffs’ burden at this stage is not onerous and may be satisfied based on
pleadings and affidavits.” Blount, 945 F. Supp. 2d at 93. These Plaintiffs allege that all Site
Managers had similar responsibilities for their respective blogs, that Vox Media had a uniform
policy of classifying Site Managers as independent contractors, and that each Site Manager has
the same kinds of claims for unpaid wages and overtime. See id. (identifying similar facts
presented by plaintiffs as sufficient to meet the first stage of conditional certification).
Declarations from Plaintiffs (and current opt-in class members) demonstrate they were each
subject to a similar Blogger Agreement and were paid on a monthly, flat-fee basis regardless of
the number of hours worked. See Compl. ¶¶ 13, 20-22, 30-32, 40-41; see also Decl. of Cheryl C.
Bradley [Dkt. 17-4] ¶¶ 4, 11-13, 21-22; Decl. of John M. Wakefield [Dkt. 17-5] ¶¶ 9-11, 20-22;
Decl. of Maija Liisa Varda [Dkt. 17-6] ¶¶ 10-12, 19-21; Decl. of Jacob Pavorsky [Dkt. 17-7]
¶¶ 10-14, 21-23; Decl. of Stephen Schmidt [Dkt. 17-8] ¶¶ 12-18, 25-26. While Vox Media
argues there are differences among the current Plaintiffs and there will likely be even more
disparities among the members of the proposed class, full “uniformity is not a prerequisite.”
Ayala v. Tito Contractors, 12 F. Supp. 3d 167, 172 (D.D.C. 2014); see also Stephens v. Farmers
Rest. Grp., 291 F. Supp. 3d 95, 106 (D.D.C. 2018) (“[D]efendants cannot defeat conditional
certification by pointing to immaterial variations in how the improper policies alleged by the
plaintiff were applied.”); Meyer v. Panera Bread Co., 344 F. Supp. 3d 193, 205 (D.D.C. 2018)
(finding that assessing the differences between the job responsibilities of the potential class
members is premature at the first stage of conditional collective action certification); McKinney
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v. United Stor-All Ctrs., Inc., 585 F. Supp. 2d 6, 10 (D.D.C. 2008) (“[D]efendants’ argument that
determining whether the potential plaintiffs are similarly situated requires a highly individualized
and fact-intensive analysis is more appropriately addressed at the second stage of the
certification process.”). The Complaint and declarations provide the Court with sufficient
information to find a common policy exists by which Vox Media classifies its Site Managers as
independent contractors rather than employees, resulting in the avoidance of FLSA obligations
that apply to employees but not independent contractors. The Court will consider whether any
differences between class members prevent a finding of substantial similarity at stage two of the
certification process.
B. Notice
Plaintiffs ask the Court to require Vox Media to produce to Plaintiffs’ counsel
“the names, last known addresses, telephone numbers, and email addresses of all potential
members of the [proposed] Class,” Mem. at 1, and approve the following aspects of the notice
process: (1) notice via traditional and electronic mail; (2) a ninety-day notice period for putative
class members to opt in; and (3) reminder notices sent to those putative plaintiffs that do not
respond in the first 45 days. Vox Media opposes the production of telephone numbers, arguing
that individual privacy concerns outweigh the need to contact potential class members via
telephone. Vox Media also asks the Court to limit the notice period to sixty days and prohibit
reminder notices.
“Courts routinely order the production of names and addresses in collective
actions.” Blount, 945 F. Supp. 2d at 97 (citing Castillo v. P & R Enters., Inc., 517 F. Supp. 2d
440, 448 (D.D.C. 2007); Hunter, 346 F. Supp. 2d at 121). When considering a request for
telephone numbers of potential class members, the Court looks for a particularized need
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identified by plaintiffs. See id. at 97 (“[T]he disclosure of phone numbers . . . implicates privacy
concerns and . . . should not be required absent particularized need.”). In this case, Plaintiffs
request the telephone numbers but do not indicate how they intend to use them. See Freeman,
187 F. Supp. 3d at 32 (“Plaintiffs do not make clear the purpose of the telephone information;
therefore, in the interest of protecting the privacy interests of the members of the proposed
collectives, the Court will not require that Defendants’ provide telephone numbers for the
members of the ‘conditionally certified’ collectives.”); Encinas v. J.J. Drywall Corp., 265 F.R.D.
3, 7 (D.D.C. 2010) (“Because plaintiffs have not specifically justified their need for access to
putative class members’ phone numbers, the defendants will be ordered to produce only the
names and last known addresses of putative class members.”). Courts have permitted the
discovery of telephone numbers in limited instances and none of the extenuating circumstances
is present here. See Ayala, 12 F. Supp. 3d at 172 (permitting the discovery of telephone numbers
because “many potential plaintiffs do not speak English as a first language—thus making them
harder to contact”). The Court will deny Plaintiffs’ request for the production of telephone
numbers.
Similarly, Plaintiffs have not identified a specific need for reminder notices and
the Court will deny that request as well. With respect to the opt-in period, courts routinely
permit both 60 and 90-day opt-in periods. Plaintiffs may have asked for a 45-day reminder due
to the length of a 90-day opt-in period; their silence makes that difficult to assess but a 60-day
opt-in period would avoid any such need and is not too short for consideration and action, if a
putative class member wishes to join the litigation. Notably, there is no objection to producing
email addresses for the potential class members, in this community of persons highly literate on
the workings of the Internet. Between regular mail and email, Plaintiffs could have their two
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bites at the apple. To the extent that Plaintiffs contact potential class members by their email
addresses, which the Court finds to be more private than residential addresses, they will be
limited to a single contact addressed to a single person, without sharing of email addresses
among recipients and without repeated contacts.
IV. CONCLUSION
For the foregoing reasons, the Court will grant Plaintiffs’ Motion for Conditional
Certification, Dkt. 17, require Vox Media to produce to Plaintiffs’ Counsel the names, last
known addresses, and email addresses of all potential members of the Class, and require the
parties to meet and confer regarding the content of the notices to be mailed and emailed to
potential class members. A memorializing Order accompanies this Memorandum Opinion.
Date: March 6, 2019 _________________________
ROSEMARY M. COLLYER
United States District Judge
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