The opinion of the court was delivered by: B. Lynn Winmill Chief U.S. District Court Judge
MEMORANDUM DECISION AND ORDER
The Court has before it Plaintiff's Motion for Corrective Notice and to Exclude Communications and Payments as Evidence of Satisfaction of Any Unpaid Wages (Dkt. 21). The Court will not hear oral arguments. For the reasons stated below, the Court will grant in part and deny in part the motion.
On February 3, 2010, Plaintiff filed a Motion for Certification of Collective Action under 29 U.S.C. § 216(b) (Dkt. 11). Plaintiff alleges that the defendant has not adequately compensated him for his overtime benefits. Attached to the Motion was a proposed Notice which the Plaintiff intended to send to putative plaintiffs, pending Court approval. At least one other person, Jerry T. Mitchell, has decided to join the collective action. (Mitchell Aff. ¶ 8).
On March 2, 2010, Defendant's counsel sent a letter ("Letter") and a check to eight putative plaintiffs of Goody's collective action. (Dkt. 22-2, Exh. E). Defendant sent Goody only the Letter. In short, the Letter advised its recipients of a County audit that revealed certain Probation employees' wages were not adequately paid, attached a check to ensure "compliance with all State and federal laws," and explained reasons for sending the check. (Mitchell Aff. ¶ 5, Exh. A). Mitchell states that the Letter confused him about whether he had a right to join Goody's collective action. (Mitchell Aff. ¶ 7).
One month later, the Court conditionally approved the collective class and Plaintiff's proposed Notice. (Dkt. 19). Plaintiff then sent discovery requests to Defendant, asking mainly for all correspondence associated with employees and their overtime compensation. One piece of evidence regards the calculations for the checks that Defendant sent to its employees. While Defendant has produced some form of evidence multiple times, Plaintiff does not find it sufficient.
The Fair Labor and Standards Act ("FLSA") provides a cause of action for an employee against an employer who fails to pay overtime wages. 29 U.S.C. § 207(a), (o). An employee may sue "for and in behalf of himself . . . and other employees similarly situated." Id. § 216(b). This is known as a collective action, which allows potential plaintiffs to "opt-in" after receiving notice. Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989).
Giving notice to potential plaintiffs of a collective action serves the "plaintiffs' interest in vigorously pursuing the litigation and the district court's interest in 'managing collective actions in an orderly fashion.'" McElmurry v. U.S. Bank Nat. Ass'n, 495 F. 3d 1136, 1139 (9th Cir. 2007) (quoting Sperling, 493 U.S. at 173). District courts also have the power to authorize notice to putative plaintiffs to counter misleading communications. Sperling, 493 U.S. at 171. This power comports with the "broad remedial purpose of the Act" and the interest of the courts to avoid a "multiplicity of suits." Braunstein v. E. Photographic Labs., Inc., 600 F. 2d 335, 335-336 (2d Cir. 1979) (per curiam). As a result, a district court has "considerable authority" to govern the conduct of counsel and parties in collective actions as long as the court maintains its neutrality. Sperling, 493 U.S. at 171-172, 174 (citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 (1981)).
However, a district court abuses its discretion if it limits communications with putative plaintiffs without finding specific evidence and weighing the need for a limitation and the interference with the rights of the parties. Gulf Oil, 452 U.S. at 101-102. As a result, the district court should carefully draw an order that limits the parties' speech as narrowly as possible. Id. at 102. Finally, although the Ninth Circuit has not specifically addressed the issue, several district courts have determined that the Gulf Oil standard applies to collective actions under § 216(b). See e.g., Parks v. Eastwood Ins. Servs., Inc., 235 F. Supp. 2d 1082, 1085 (C.D. Cal. 2002); Howard v. Securitas Sec. Servs., USA Inc., 630 F. Supp. 2d 905, 909 (N.D. Ill. 2009); Belt v. Emcare, Inc., 299 F. Supp. 2d 664, 667-668 (E.D. Tex. 2003); Jones v. Casey's Gen. Stores, 517 F. Supp. 2d 1080, 1086 (S.D. Iowa 2007); Maddox v. Knowledge Learning Corp., 499 F. Supp. 2d 1338, 1343 (N.D. Ga. 2007).
Plaintiff argues that Defendant's Letter misled putative plaintiffs not to opt-in to his collective action. As a result, he asks the Court to order Defendant to send corrective notice, to disclose certain facts, and to agree that Defendant's "settlement offer" be ...