MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE

PLAINTIFFS‟ MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
BRENDA AGUAYO, MARIA
MALDONADO, MARIA CLIMACO, OLIVIA
ORTIZ, ANA PALOMARES, SUSANA
MARTINEZ AND NICANOR QUIROZ, on
behalf of themselves and all others similarly
situated,
Plaintiffs,
V.
BASSAM ODEH, INC. AND BASSAM
MOHAMMED ODEH
Defendants.
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CIVIL ACTION NO. 3:13-CV-02951-B
PLAINTIFFS’ MOTION TO CONDITIONALLY CERTIFY A
COLLECTIVE ACTION AND TO ISSUE NOTICE
By: /s/Allen R. Vaught
Allen R. Vaught
Baron & Budd, P.C.
State Bar No. 24004966
3102 Oak Lawn Avenue, Suite 1100
Dallas, Texas 75219
(214) 521-3605 – Telephone
(214) 520-1181 – Facsimile
avaught@baronbudd.com
Paula Wyatt
TX Bar No. 10541400
The Wyatt Law Firm
70 NE Loop 410, Suite 725
San Antonio, Texas 78216
(210) 340-5550 – Telephone
(210) 340-5581 – Facsimile
pwyatt@wyattlawfirm.com
ATTORNEYS FOR PLAINTIFFS
Case 3:13-cv-02951-B Document 5 Filed 07/31/13 Page 1 of 25 PageID 30

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion to Conditionally
Certify a Collective Action and Issue Notice will be served with the Original Complaint and
Summons in this case by private process server. The date of service will be confirmed by the
proof of service as completed by the process server.
Additionally, I hereby certify that a true and correct copy of this Motion to Conditionally
Certify a Collective Action and Issue Notice was served on Defendants, as listed below, along
with a copy of the Complaint and Summons via certified mail, return receipt requested, and
placed into an official depository of the United States Postal Service, on this the 31st
day of July
2013:
Defendant Bassam Odeh, Inc.
c/o registered agent, Mr. Bassam M. Odeh
502 North O‟Connor Road
Irving, Texas 75061-7528
CMRRR 7160 3901 9848 4711 1666
Defendant Bassam M. Odeh
6542 Potomac Parkway
Arlington, Texas 76017-4934
CMRRR 7160 3901 9848 4711 1673
/s/Allen R. Vaught
Allen R. Vaught

PLAINTIFFS‟ MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE PAGE i
TABLE OF CONTENTS
I. SUMMARY........................................................................................................................ 1
II. FACTUAL BACKGROUND............................................................................................. 3
III. ARGUMENT AND ANALYSIS ....................................................................................... 5
A. Certification Standard............................................................................................. 5
B. Plaintiffs Satisfy The Lenient Legal Standard For Conditional
Certification Of A FLSA Collective Action......................................................... 10
1. First, There Is A Reasonable Basis For Crediting The Assertion
That Aggrieved Individuals Exist............................................................. 10
2. Second, Those Other Aggrieved Individuals Are Similarly Situated
To The Plaintiffs In Relevant Respects Given The Claims Asserted ....... 11
3. Finally, Even If The Third Requirement Exists (And Some Courts
Hold That It Does Not) There Is Sufficient Evidence That Those
Other Aggrieved Individuals Are Interested In Opting In To This
Lawsuit...................................................................................................... 13
a. Some Courts Have Held That This Requirement
Does Not Apply In The First Place………………………………13
b. Even If This Requirement Applies, Plaintiffs
Have More Than Adequately Fulfilled It .………………………14
C. The Proposed Notice……………………………………………………………..16
IV. CONCLUSION…………………………………………………………………………..18

PLAINTIFFS‟ MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE PAGE ii
TABLE OF AUTHORITIES
CASES
Acevedo v. Allsup’s Convenience Stores, Inc.
600 F.3d 516 (5th Cir. 2010)…………………………………………………….…….6,13
Adams v Inter-Con Sec Systems, Inc.,
242 F.R.D. 530 (N.D. Cal. 2007)……………………………………………………..17,18
Badgett v. Tex. Taco Cabana, L.P., No. Civ .A.H 05-3624,
2006 WL 367872 (S.D. Tex. Feb.14, 2006)…………………………………….……….13
Barnett v. Countrywide Credit Industries, Inc., Civ. A. 3:01-CV-1182-M,
2002 U.S. Dist. LEXIS 9099 (N.D. Tex. 2002)………………………………….………16
Black v. SetttlePou, P.C., Civil Action No. 3:10-CV-1418-K,
2011 U.S. Dist. LEXIS 15493 (N.D. Tex. Feb. 14, 2011)……………………..……..14,18
Bouaphakeo v. Tyson Foods, Inc.,
564 F. Supp. 2d 870 (N.D. Iowa 2008)……………………………………………..……..9
Burkholder v. City of Fort Wayne,
750 F. Supp. 2d 990 (N.D. Ind. 2010)……………………………………………..……12
Cantu v. Vitol, Inc., Civil Action No. H-09-0576,
2009 U.S. Dist. LEXIS 118325 (S.D. Tex. Dec. 21, 2009)……………………….……...8
Cryer v Intersolutions, Civil Action No. 06-2032 (EGS)
2007 U.S. Dist. LEXIS 29339, (D.D.C. April 7, 2007)…………………………….........17
Da Silva v M2/Royal Constr of La., LLC, Civil Action No.: 08-4021,
2009 U.S. Dist. LEXIS 100692 (E.D. La. Oct. 29, 2009)……………………………….17
Desert Palace, Inc. v. Costa,
539 U.S. 90 (2003)…………………………………………………………………..……6
Dreyer v. Baker Hughes, Civil Action H-08-1212,
2008 U.S. DIST. LEXIS 101297 (S.D. TEX. DECEMBER 11, 2008) ………………12,13
Heckler v. DK Funding, LLC,
502 F. Supp. 2d 777 (N.D. Ill. 2007)……………………………………………..…..….13
Hernandez v. Bob Mills Furniture Co. of Tex., LP,
2011 U.S. Dist. LEXIS 26395 (N.D. Tex. Mar. 15, 2011)………………………………7

PLAINTIFFS‟ MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE PAGEiii
Hoffmann-La Roche Inc. v. Sperling,
493 U.S. 165 (1989) ………………………………………………………………………6
Hoffmann v. Sbarro, Inc.,
982 F. Supp. 249 (S.D.N.Y. 1997)………………………………………………………10
In re Wells Fargo Wage & Hour Empl. Practices Litig., No. H-11-2266,
2012 U.S. Dist. LEXIS 112769 (S.D. Tex. Aug. 10, 2012)……………………………..8,9
Johnson v. Big Lots Stores, Inc., Civil Action Nos. 04-3201, 05-6627,
2007 U.S. Dist. LEXIS 96151 (E.D. La. Aug. 21, 2007)…………………………....…..12
Johnson v. TGF Precision Haircutters, Inc.,
319 F. Supp. 2d 753 (S.D. Tex. 2004)…………………………………………………..12
Jones v. SuperMedia Inc.,
281 F.R.D. 282 (N.D. Tex. 2012)………………………………………………...7,8,11,14
King v ITT Continental Baking Co.,
1986 U.S. Dist. LEXIS 29321, (N.D. Ill. Feb. 13, 1986)………………………………..17
Littlefield v. Dealer Warranty Servs., LLC,
679 F. Supp.2d 1014 (E.D. Mo. 2010)…………………………………………………..17
Longcrier v. HL–A Co.,
595 F. Supp. 2d 1218 (M.D. Ala. 2008)………………………………………….…….....9
Lusardi v. Xerox Corp.,
118 F.R.D. 351 (D.N.J. 1987)…………………………………………………..….6,7,9,14
Luvianos v. Gratis Cellular, Inc., NO. CIV.A. H-12-1067,
2012 U.S. Dist. LEXIS 183027 (S.D. Tex. Dec. 10, 2012)……………………..……….14
Lynch v. United Svcs. Auto. Ass’n,
491 F. Supp. 2d 357 (S.D.N.Y. 2007)………………………………………………..…...9
Mahoney v. Farmers Ins. Exchange, NO. 4:09-CV-2327,
2011 U.S. Dist. LEXIS 108744 (S.D. Tex. Sep 23, 2011)……………………………..…8
McKnight v. D. Houston, Inc.,
756 F. Supp. 2d 794 (S.D. Tex. 2010)……………………………………………..……...9
Mooney v. Aramco Servs. Co.,
54 F.3d 1207 (5th Cir. 1995)……………………………………….....…6,7,9,10,11,12,13

PLAINTIFFS‟ MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE PAGE iv
Morales v. Thang Hung Corp., Civil Action No. 4:08-2795,
2009 U.S. Dist. LEXIS 71765 (S.D. Tex. Aug. 14, 2009)……………………………..…8
Pereira v Foot Locker, Inc.,
261 F.R.D. 60 (E.D. Pa. 2009)…………………………………………………………...17
Perrin v. Papa John's International, Inc., No. 09CV01335 AGF,
2011 U.S. Dist. LEXIS 117046 (E.D. Mo. Oct. 11, 2011)…………………………...17,18
Prater v. Commerce Equities Mgmt. Co., No. H-07-2349,
2007 U.S. Dist. LEXIS 85338 (S.D. Tex. Nov 19, 2007)……………………………...….8
Putnam v. Galaxy 1 Marketing, Inc.,
276 F.R.D. 264 (S.D. Iowa Aug. 23, 2011)………………………………………..…17,18
Reid v. Timeless Restaurants, Inc., Civil Action No. 3:09-CV-2481-L,
2010 U.S. Dist. LEXIS 118802 (N.D. Tex. 2010)…………………………………..…7,16
Ryan v. Staff Care, Inc,
497 F. Supp. 2d 820 (N.D. Tex. 2007)……………………………………………..........15
Sandoz v. Cingular Wireless, LLC.
553 F.3d 913 (5th
Cir. 2008)………………………………………………………………7
Sherrill v Sutherland Global Servs.,
487 F. Supp. 2d 344 (W.D.N.Y. 2007)…………………………………………………..17
Shushan v. University of Colorado,
132 F.R.D. 263 (D. Colo. 1990)…………………………………………………………..6
Tolentino v. C & J Spec-Rent Services Inc.,
716 F. Supp. 2d 642 (S.D. Tex. 2010)…………………………...………………...6,7,9,14
Tony & Susan Alamo Found. v. Sec’y of Labor,
471 U.S. 290, 105 S. Ct. 1953, 85 L.Ed.2d 278 (1985)…………………………...….13,14
Vargas v. Richardson Trident Company, Civil Action No. H-09-1674,
2010 U.S. Dist. LEXIS 15104 (S.D. Tex. Feb. 22, 2010)………………………….……..7
Vaszlavik v. Storage Tech. Corp.,
175 F.R.D. 672 (D. Colo. 1997)…………………………………………………………10
Villarreal v. St. Luke’s Episcopal Hosp.,
751 F. Supp. 2d 902 (S.D. Tex. 2010)……………………………………...……....8,10,14

PLAINTIFFS‟ MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE PAGE v
Villatoro v. Kim Son Restaurant, L.P.,
286 F. Supp. 2d 807 (S.D. Tex 2003)………………………………...……………..…….6
White v. 14051 Manchester, Inc., No. 12CV469 JAR,
2012 U.S. Dist. LEXIS 178621 (E.D. Mo. Nov. 30, 2012)………………………….…..17
Yaklin v. W-H Energy Servs., Inc., Civil Action No. C-07-422,
2008 U.S. Dist. LEXIS 36572, (S.D. Tex. May 2, 2008)………………..……………….6
Young v. Cooper Cameron Corp.,
229 F.R.D. 50 (S.D.N.Y. 2005)………………………………………………………….10
STATUTES
29 U.S.C. § 201, et seq. …………………………………………………………………….…..…1
29 U.S.C. § 207(a)………………………………………………………………………............1,5
29 U.S.C. § 216…………………………………………………………………………………....2
29 U.S.C. § 216(b)…………………………………………………………………………......5,13
29 U.S.C. § 251, et seq…………………………………………………………………………….1

PLAINTIFFS‟ MOTION TO CONDITIONALLY CERTIFY
A COLLECTIVE ACTION AND TO ISSUE NOTICE
PAGE 1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
BRENDA AGUAYO, MARIA
MALDONADO, MARIA CLIMACO, OLIVIA
ORTIZ, ANA PALOMARES, SUSANA
MARTINEZ AND NICANOR QUIROZ, on
behalf of themselves and all others similarly
situated,
Plaintiffs,
V.
BASSAM ODEH, INC. AND BASSAM
MOHAMMED ODEH
Defendants.
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CIVIL ACTION NO. 3:13-CV-02951-B
PLAINTIFFS’ MOTION TO CONDITIONALLY CERTIFY A
COLLECTIVE ACTION AND TO ISSUE NOTICE
Plaintiffs, Brenda Aguayo (“Aguayo”), Maria Maldonado (“Maldonado”), Maria
Climaco (“Climaco”), Olivia Ortiz (“Ortiz”), Ana Palomares (“Palomares”), Susana Martinez
(“Martinez”) and Nicanor Quiroz, (“Quiroz”) (collectively “Plaintiffs”) file this Motion to
Conditionally Certify a Collective Action and to Issue Notice, showing in support as follows:
I. SUMMARY
This case arises, in relevant part, under the federal Fair Labor Standards Act (“FLSA”),
29 U.S.C. § 201, et seq. and the federal Portal-to-Portal Pay Act, 29 U.S.C. §§ 251-262. The
FLSA provides for payment of overtime at one and one-half times the regular rate of pay. 29
U.S.C. § 207(a). In their Complaint, Plaintiffs allege that they did not receive all overtime
compensation due because Bassam Odeh, Inc. (“Bassam”), and Mr. Bassam Mohammed Odeh
(“Odeh”) (collectively “Defendants”) engaged in a scheme whereby Plaintiffs were not credited
with any overtime hours worked. Instead, Defendants credited those hours worked over 40 per

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workweek to fictitious employees in order to avoid payment of time and one-half overtime
compensation to the Plaintiffs. Those fictitious employee checks were then cashed by
Defendants, and after deduction for a check processing fee, the Plaintiffs were then paid cash for
hours worked over 40 in a workweek at straight-time only, but typically at an amount even less
than their regular rates of pay.
Defendants violated the FLSA by not paying Plaintiffs overtime compensation for all
hours worked over 40 in each and every workweek. Accordingly, Defendants have short-
changed their current and former employees because they have not paid all overtime
compensation due.
This motion seeks to provide notice to the aggrieved group of employees. Specifically,
Plaintiffs seek an order from the Court conditionally certifying a collective action under 29
U.S.C. § 216, and authorizing Plaintiffs to issue “opt-in” notices to their similarly situated non-
exempt fast food restaurant employees who work, or have worked, for Defendants in Texas and
Louisiana in the three years prior to the filing of this Motion who were not paid overtime
compensation for all hours worked over 40 during each and every workweek.
Accordingly, the sole question presented by this motion is: Should the other non-exempt
fast food restaurant employees who were not paid overtime compensation for all hours worked
over 40 during each and every workweek be given notice and an opportunity to opt-in to this
case in order to seek the overtime damages the Defendants owe each of them. The answer, under
the law, is “yes.”

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II. FACTUAL BACKGROUND
Plaintiff Aguayo has worked for Defendants from August 2010 to December 2012 and
May 2013 through the present at their Jack in the Box fast food restaurant located in Irving,
Texas, as well as several other stores in the Dallas/Ft. Worth area. (App. pp. 1 - 4 at ¶¶ 2 & 4).
Plaintiff Maldonado has worked for Defendants since July 2001 at their Jack in the Box
fast food restaurant located in Irving, Texas, as well as several other stores in the Dallas/Ft.
Worth area. (App. pp. 5 - 8 at ¶¶ 2 & 4).
Plaintiff Ortiz has worked for Defendants from 1999 to 2002 and May 2009 through the
present at their Jack in the Box fast food restaurant located in Irving, Texas, as well as several
other stores in the Dallas/Ft. Worth area. (App. pp. 9 - 12 at ¶¶ 2 & 4).
Plaintiff Climaco has worked for Defendants since December 2005 at their Jack in the
Box fast food restaurant located in Irving, Texas. (App. pp. 13 - 16 at ¶¶ 2 & 4).
Plaintiff Quiroz has worked for Defendants from 1996 to 2004 and May 2007 through the
present at their Jack in the Box fast food restaurant located in Irving, Texas as well as several
other stores in the Dallas/Ft. Worth area. (App. pp. 17 - 20 at ¶¶ 2 & 4).
Plaintiff Palomares has worked for Defendants since November 2009 at their Jack in the
Box fast food restaurant located in Irving, Texas.
Plaintiff Martinez has worked for Defendants since March 2007 at their Jack in the Box
fast food restaurant located in Irving, Texas.
Bassam owns and operates Jack in the Box and Qdoba related franchise fast food
restaurants in Texas and Louisiana. (App. p. 1 at ¶ 1, p. 5 at ¶ 1, p. 9 at ¶ 1, p. 13 at ¶ 1, p. 17 at

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¶ 1 & p. 21). In fact, Odeh personally stated in a New York Times interview in 2009 that he
owns Jack and the Box and Qdoba restaurants in Texas and Louisiana.1
(App. pp. 21-22).
Defendants employ/employed Plaintiffs in connection with their fast food restaurant
operations. (App. pp. 1 - 2 at ¶¶ 1 - 4, pp. 5 - 6 at ¶¶ 1 - 4, pp. 9 - 10 at ¶¶ 1 - 4, p. 13 at ¶¶ 1 - 4
& pp. 17 - 18 at ¶¶ 1 - 4). All Plaintiffs were paid an hourly wage and, at all times, were non-
exempt employees under the FLSA. (App. p. 2 at ¶5, p. 6 at ¶5, p. 10 at ¶5, p. 14 at ¶ 5 & p. 18
at ¶ 5). As non-exempt employees, Plaintiffs and putative collective action members were and
are entitled to receive overtime pursuant to the FLSA.2
It is believed that Defendants employed
over 150 non-exempt employees for the three year time period preceding July 31, 2013. (App. p.
3 at ¶ 9, p. 7 at ¶ 9, p. 11 at ¶ 9, p. 15 at ¶ 9 & p. 19 at ¶ 9).
Although Plaintiffs regularly worked in excess of 40 hours per workweek, Defendants
engaged in a scheme whereby Plaintiffs were not credited with any overtime hours worked.
(App. p. 2 at ¶ 6, p. 6 at ¶ 6, p. 10 at ¶6, p. 14 at ¶ 6 & p. 18 at ¶ 6). Instead, Defendants credited
those hours worked over 40 per workweek to fictitious employees in order to avoid payment of
time and one-half overtime compensation to the Plaintiffs. (App. p. 2 at ¶ 6, p. 6 at ¶ 6, p. 10 at
¶6, p. 14 at ¶ 6 & p. 18 at ¶ 6).
For example, Bassam credited overtime hours worked by Plaintiffs Aguayo, Maldonado
and Ortiz to fictitious employees, including one named Jade Perez. (App. p. 2 at ¶ 6, p. 6 at ¶ 6
& p. 10 at ¶6). Plaintiff Climaco‟s overtime hours worked were credited by Bassam to a
fictitious employee named Marlen Martinez. (App. p. 14 at ¶ 6). Plaintiff Quiroz‟s overtime
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In that New York Times interview, Odeh claims to own 34 restaurants in Texas and Louisiana,
including outlets for Jack in the Box, Qdoba and Pancho‟s. At this time, only Jack in the Box and
Qdoba are covered by Plaintiffs‟ collective action claims, but Plaintiffs reserve the right to
amend the scope of this collective action based on later-acquired facts.
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29 U.S.C. § 207(a)

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hours worked were credited by Bassam a fictitious employee named Alejandro Medrano. (App.
p. 18 at ¶ 6).
Checks for straight-time hours worked over 40 in a workweek by Plaintiffs were then
issued to these fictitious employees, but at an hourly rate less than the Plaintiffs‟ respective
regular rates of pay. (App. p. 2 at ¶ 7, p. 6 at ¶ 7, p. 10 at ¶ 7, p. 14 at ¶ 7 & p. 18 at ¶ 7 ). These
fictitious employee checks were then cashed by Defendants, and after deduction for a check
processing fee, the Plaintiffs were then paid cash for hours worked over 40 in a workweek at
straight-time only, but typically at an amount even less than their regular rates of pay. (App. p. 2
at ¶ 7, p. 6 at ¶ 7, p. 10 at ¶ 7, p. 14 at ¶ 7 & p. 18 at ¶ 7 ).
Defendants have a company-wide practice/policy to not pay hourly fast food restaurant
employees all overtime due pursuant to the scheme identified above. (App. p. 3 at ¶ 9, p. 7 at ¶
9, p. 11 at ¶ 9, p. 15 at ¶ 9 & p. 19 at ¶ 9).
III. ARGUMENT AND ANALYSIS
A. Certification Standard.
The FLSA requires covered employers to pay non-exempt employees for hours they have
worked in excess of defined maximum hours. 29 U.S.C. § 207(a). It also creates a cause of
action for employees against employers who have violated the overtime compensation
requirements:
An action ... may be maintained ... by any one or more employees
for and in behalf of himself or themselves and other employees
similarly situated. No employee shall be a party plaintiff to any
such action unless he gives his consent in writing to become such a
party and such consent is filed in the court in which such action is
brought.
29 U.S.C. § 216(b).

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“A representative action brought pursuant to this provision follows an „opt-in‟ rather than
an „opt-out‟ procedure.” See Tolentino v. C & J Spec-Rent Services Inc., 716 F. Supp. 2d 642,
646 (S.D. Tex. 2010) (citation omitted). District courts have discretion in deciding whether and
how to award “timely, accurate, and informative” notice to prospective plaintiffs. Hoffmann-La
Roche Inc. v. Sperling, 493 U.S. 165, 172, (1989). FLSA collective actions “are generally
favored because such actions reduce litigation costs for the individual plaintiffs and create
judicial efficiency by resolving in one proceeding common issues of law and fact arising from
the same alleged . . . activity.” Yaklin v. W-H Energy Servs., Inc., Civil Action No. C-07-422,
2008 U.S. Dist. LEXIS 36572, at *4 (S.D. Tex. May 2, 2008) (citing Hoffmann-La Roche Inc.,
493 U.S. at 170).
Courts presently follow two different approaches in determining whether to authorize
notice to employees of their right to join a collective action suit under FLSA Section 216(b). See
Tolentino, 716 F. Supp. 2d at 646. The first approach was developed in Lusardi v. Xerox Corp.,
118 F.R.D. 351 (D.N.J. 1987), and involves a two-step process to determine whether employees
are similarly situated. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995),
overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 90-91 (2003). The
second approach follows Shushan v. University of Colorado, 132 F.R.D. 263 (D. Colo. 1990),
and treats the collective action authorization as coextensive with Rule 23 class certification. See
Tolentino, 716 F. Supp. 2d at 646; Villatoro v. Kim Son Restaurant, L.P., 286 F. Supp. 2d 807,
809 (S.D. Tex 2003).
The Fifth Circuit has not yet “ruled on how district courts should determine whether
plaintiffs are sufficiently „similarly situated‟ to advance their claims together in a single § 216(b)
action.” Acevedo v. Allsup’s Convenience Stores Inc., 600 F.3d 516, 518-19 (5th Cir. 2010).

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However, the majority of courts and this district therefore follow the two-step approach rather
than the Rule 23 approach. Jones v. Supermedia, Inc., 281 F.R.D. 282, 287 n.1 (N.D. Tex. 2012)
(Boyle, J.); Reid v. Timeless Restaurants, Inc., No. 3:09-CV-2481-L, 2010 WL 4627873, at *2
(N.D. Tex. Nov. 5, 2010) (Lindsay, S.); Hernandez v. Bob Mills Furniture Co. of Tex., LP, No.
2:10-CV-0243-J, 2011 U.S. Dist. LEXIS 26395 at *4 (N.D. Tex. Mar. 15, 2011) (Robinson, M.).
Furthermore, the Fifth Circuit has referred to the two step approach as the typical manner in
which collective actions proceed. See Sandoz v. Cingular Wireless, LLC, 553 F.3d 913, 915 n.2
(5th Cir. 2008).
The first step of the Lusardi analysis is the “notice stage.” See Tolentino, 716 F. Supp.
2d at 647. During the notice stage, the court “makes a decision-usually based only on the
pleadings and any affidavits which have been submitted-whether notice of the action should be
given to potential class members. Because the court has minimal evidence, this determination is
made using a fairly lenient standard and typically results in „conditional certification‟ of a
representative class. Id. If the district court conditionally certifies the class, putative class
members are given notice and the opportunity to opt-in. See Mooney, 54 F.3d at 1214. At this
stage, courts generally “require nothing more than substantial allegations that the putative class
members were together the victims of a single decision, policy, or plan infected by
discrimination.” Id. at n.8. As one court recently explained, “[a] factual basis for the allegations
must be presented, and there must be a showing of some identifiable facts or legal nexus that
binds the claims so that hearing the cases together promotes judicial efficiency.” See Tolentino,
716 F. Supp. 2d at 647 (citation omitted); see also Vargas v. Richardson Trident Company, Civil
Action No. H-09-1674, 2010 U.S. Dist. LEXIS 15104, at *7 (S.D. Tex. Feb. 22, 2010).

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Generally, a plaintiff must show that: “(1) there is a reasonable basis for crediting the
assertion that aggrieved individuals exist; (2) those aggrieved individuals are similarly situated to
the plaintiff in relevant respects given the claims and defenses asserted; and (3) those individuals
want to opt in to the lawsuit.” Morales v. Thang Hung Corp., Civil Action No. 4:08-2795, 2009
U.S. Dist. LEXIS 71765, at *7 (S.D. Tex. Aug. 14, 2009). See also In re Wells Fargo Wage &
Hour Empl. Practices Litig., 2012 U.S. Dist. LEXIS 112769 at *24 (S.D. Tex. Aug. 10, 2012)
(reciting same three factors); Mahoney v. Farmers Ins. Exchange, NO. 4:09-CV-2327, 2011 U.S.
Dist. LEXIS 108744, at *10-11 (S.D. Tex. Sep 23, 2011) (reciting same three factors). This
standard is “less stringent” than the Rule 23 class action requirements. See Cantu v. Vitol, Inc.,
Civil Action No. H-09-0576, 2009 U.S. Dist. LEXIS 118325, at *9-10 (S.D. Tex. Dec. 21,
2009); Prater v. Commerce Equities Mgmt. Co., No. H-07-2349, 2007 U.S. Dist. LEXIS 85338,
at *7 (S.D. Tex. Nov 19, 2007) (citing cases). And some courts in the Fifth Circuit have done
away with the third requirement. See, e.g., Villarreal v. St. Luke’s Episcopal Hosp., 751 F. Supp.
2d 902, 916 (S.D. Tex. 2010) (“Liberally construing the FLSA to effect its purposes, the court
finds that it is enough for the plaintiff to present evidence that there may be other aggrieved
individuals to whom a class action notice should be sent, without requiring evidence that those
individuals actually intend to join the lawsuit.”).
A court may deny conditional certification and notice “if the action arises from
circumstances purely personal to the plaintiff, and not from any generally applicable rule, policy,
or practice. However, the court need not find uniformity in each and every aspect of
employment to determine [that] a class of employees is similarly situated. “The remedial nature
of the FLSA strongly favors of allowing cases to proceed collectively.” Jones, 281 F.R.D. at 288
(citing Tolentino, 716 F. Supp. 2d at 647). If the court conditionally certifies the class during the

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notice stage, the action “proceeds as a representative action throughout discovery.” See Mooney,
54 F.3d at 1214.
Lusardi‟s second step is triggered when a defendant files a motion for decertification,
after completion of discovery. Id. “At this stage, the court has much more information on which
to base its decision, and makes a factual determination on the similarly situated question. If the
claimants are similarly situated, the district court allows the representative action to proceed to
trial. If the claimants are not similarly situated, the district court decertifies the class, and the
opt-in plaintiffs are dismissed without prejudice. The class representatives – i.e. the original
plaintiffs – proceed to trial on their individual claims.” Id.; Tolentino, 716 F. Supp. 2d at 647.
Notification to prospective claimants issues when a court conditionally certifies the case
as a collective action suit under Section 216(b), and the court “may exercise its discretion in
defining the class of plaintiffs who will receive notice and how they will be notified.” Id. at 647-
48. “Neither stage of certification is an opportunity for the court to assess the merits of the claim
by deciding factual disputes or making credibility determinations.” McKnight v. D. Houston,
Inc., 756 F. Supp. 2d 794, 802 (S.D. Tex. 2010) (citing Bouaphakeo v. Tyson Foods, Inc., 564 F.
Supp. 2d 870, 893 (N.D. Iowa 2008) (“[W]hether at the first or second step in the § 216(b)
collective action certification process, plaintiffs need not prove the merits of their claim. That is,
plaintiffs do not have to show that the employer actually violated the FLSA.”); In re Wells
Fargo, 2012 U.S. Dist. LEXIS 112769 at *85-88 (analysis of merits-based arguments and are
“irrelevant” at the Lusardi notice stage); Longcrier v. HL–A Co., 595 F. Supp. 2d 1218, 1240–41
(M.D. Ala. 2008) (“To the extent that Defendant would now argue the merits of the case, such
debates are premature and inappropriate.”); Lynch v. United Svcs. Auto. Ass’n, 491 F. Supp. 2d
357, 368 (S.D.N.Y. 2007) (“At this procedural stage, the court does not resolve factual disputes,

PAGE 10
decide substantive issues going to the ultimate merits, or make credibility determinations.”);
Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005) (“The focus . . . is not on
whether there has been an actual violation of law but rather on whether the proposed plaintiffs
are similarly situated ... with respect to their allegations that the law has been violated.”);
Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 262 (S.D.N.Y. 1997) (“[T]he Court need not
evaluate the merits of plaintiffs‟ claims in order to determine that a definable group of similarly
situated plaintiffs can exist here.”); Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 680 (D.
Colo. 1997) (“[W]hether plaintiffs can meet their burden in the liability phase . . . is irrelevant to
the question of § 216(b) certification”).
B. Plaintiffs Satisfy The Lenient Legal Standard For Conditional Certification
Of A FLSA Collective Action.
This Court must determine whether Plaintiffs have satisfied their burden to demonstrate
that conditional class certification is proper. In the notice stage, a court will customarily make a
decision “based only on the pleadings and any affidavits which have been submitted.” Mooney,
54 F.3d at 1213-14. To facilitate the analysis, the Court evaluates the request for conditional
certification in light of the three factors discussed above. As set forth below, Plaintiffs satisfy
the lenient standard for conditional certification.
1. First, There Is A Reasonable Basis For Crediting The Assertion That
Aggrieved Individuals Exist.
To satisfy this requirement, Plaintiffs “need only show that it is reasonable to believe that
there are other aggrieved employees who were subject to an allegedly unlawful policy or plan.”
Villarreal, 751 F. Supp. 2d at 916-17. Plaintiffs easily do so.
Plaintiffs have stated a cognizable claim under Section 207 of the FLSA, and Plaintiffs
have provided evidence in the form of declarations from three of the seven named Plaintiffs
showing that, although Plaintiffs regularly worked in excess of 40 hours per workweek,

PAGE 11
Defendants engaged in a scheme whereby Plaintiffs were not credited with their overtime hours
worked and did not receive overtime compensation for all hours worked over 40 in each and
every workweek. Plaintiffs have identified that this policy was applied to all non-exempt fast
food restaurant employees of Defendants, that Defendants operate numerous fast food restaurants
in Texas and Louisiana and that Defendants employ approximately 150 or more employees at
those restaurants at any given time. (App. p. 3 at ¶ 9, p. 7 at ¶ 9, p. 11 at ¶ 9, p. 15 at ¶ 9, p. 19 at
¶ 9 & p. 21). Furthermore, Odeh confirms in his interview with the New York Times that
Defendants operate numerous Jack in the Box and Qdoba restaurants in Texas and Louisiana.
(App. pp. 21-22).
As the first step of the conditional certification process is usually based on only the
pleadings and any declarations, Plaintiffs have exceeded their required showing at this lenient
first stage. Mooney, 54 F.3d at 1213-14. Accordingly, there is cause to believe that there are
150 or more other aggrieved current and former employees of Defendants in Texas and
Louisiana who have been denied overtime compensation for all hours worked over 40 in each
and every workweek.
2. Second, Those Other Aggrieved Individuals Are Similarly Situated To
The Plaintiffs In Relevant Respects Given The Claims Asserted.
The potential class plaintiffs are considered “similarly situated” to the named plaintiffs if
they are “„similarly situated with respect to their job requirements and with regard to their pay
provisions. The positions need not be identical, but similar.” Jones, 281 F.R.D. at 288 (citations
omitted).
Plaintiffs satisfy this test. Their claims are not “purely personal” to them. Rather, they
are based on a generally applicable rule, policy, or practice. Here, the individual circumstances
of any non-exempt employee of Defendants is irrelevant. The only questions are: Were they a

PAGE 12
non-exempt employee? Did they work overtime? Were they denied overtime compensation for
all hours worked over 40 in each and every workweek?
Plaintiffs have provided sworn declarations identifying that they were hourly employees,
were fast food restaurant workers with similar job duties, were non-exempt employees, regularly
worked more than 40 hours per workweek and were not paid time and one-half their regular rates
of pay for all hours worked over 40 in each and every workweek. (App. pp. 1 - 2 at ¶¶ 3, 5 & 6,
pp. 5 - 6 at ¶¶ 3, 5 & 6, pp. 9 - 10 at ¶¶ 3, 5 & 6, pp. 13 - 14 at ¶¶ 3, 5 & 6 & pp. 17 - 18 at ¶¶ 3, 5
& 6). Plaintiffs and the putative class members are thus a cohesive and homogeneous group all
subject to the same policy and practice (i.e., deprived of overtime pay for all overtime hours
worked) that fit perfectly within the letter and the spirit of the FLSA collective action. See
Dreyer v. Baker Hughes, Civil Action H-08-1212, 2008 U.S. Dist. LEXIS 101297, at *5-7 (S.D.
Tex. December 11, 2008) (granting class certification of employees on same work team);
Johnson v. Big Lots Stores, Inc., Civil Action Nos. 04-3201, 05-6627, 2007 U.S. Dist. LEXIS
96151, at *13 (E.D. La. Aug. 21, 2007) (“To pursue claims against an employer, plaintiffs must
be similarly situated. They do not have to be identically situated.”). It is well settled that, at this
“fairly lenient” notice stage of the proceedings, Plaintiffs‟ sworn statements more than suffice as
evidence that other employees are “similarly situated.” Mooney, 54 F.3d at 1214; Johnson v.
TGF Precision Haircutters, Inc., 319 F. Supp. 2d 753, 754-55 (S.D. Tex. 2004) (“The standard
applied is a lenient one . . . ”).
Moreover, given the across-the-board violations of the FLSA by Defendants as to all
hourly fast food restaurant employees, there is unlikely to be any truly individualized defenses in
this case. See Burkholder v. City of Fort Wayne, 750 F. Supp. 2d 990, 994 (N.D. Ind. 2010)
(granting certification of FLSA case in part because “the City of Fort Wayne has not articulated

PAGE 13
any particularized defenses in this action, that is, their defenses would apply to all Plaintiffs, not
just a particular Plaintiff.”).
3. Finally, Even If The Third Requirement Exists (And Some Courts Hold That
It Does Not) There Is Sufficient Evidence That Those Other Aggrieved
Individuals Are Interested In Opting In To This Lawsuit.
a. Some Courts Have Held That This Requirement Does Not Apply
In The First Place.
The requirement of a showing that other aggrieved individuals are interested in opting
into the suit in order to obtain collective certification is not a statutory requirement, and some
courts have rejected it. See, e.g., Heckler v. DK Funding, LLC, 502 F. Supp. 2d 777, 780 (N.D.
Ill. 2007). For example, in 2008, U.S. District Court Magistrate Judge Stephen Wm. Smith of
the Southern District of Texas held that, “such a requirement is at odds with the Supreme Court‟s
command that the FLSA be liberally construed to effect its purposes.” Dreyer, 2008 U.S. Dist.
LEXIS 101297, at *8-9 (citing Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290,
296, 105 S. Ct. 1953, 85 L.Ed.2d 278 (1985)). In November 2010, U.S. Magistrate Judge Nancy
Johnson also rejected this requirement, explaining:
The court agrees that a plaintiff need not present evidence at this
stage of the third element, that aggrieved individuals actually want
to opt in to the lawsuit. There are several reasons for this. First, as
already stated, this element is not a statutory requirement at this
stage. See 29 U.S.C. § 216(b). Second, this element has not been
required, or even discussed, by any higher court opinion that this
court has been able to find or to which the parties have cited.
Rather, the Fifth Circuit‟s discussion of the Lusardi approach only
requires, at the first stage, that “putative class members‟ claims are
sufficiently similar to merit sending notice of the action to possible
members of the class.” See [Acevedo v. Allsup’s Convenience
Stores, 600 F.3d 516, 519 (5th Cir. 2010)] (citing Mooney, 54 F.3d
at 1213-14). Third, unlike under Rule 23, there is no numerosity
requirement in a FLSA class action lawsuit under the Lusardi
approach. See, e.g., Badgett v. Tex. Taco Cabana, L.P., No. Civ
.A.H 05-3624, 2006 WL 367872, at *2 (S.D. Tex. Feb.14, 2006)
(Lake, J.) (unpublished) (citing Mooney, 54 F.3d at 1214 & n. 8)
(stating that “at the notice stage [in a FLSA action using the

PAGE 14
Lusardi approach], courts appear to require nothing more than
substantial allegations that the putative class members were
together the victims of a single decision, policy, or plan” (internal
quotations omitted)). Fourth, this element, requiring evidence of
purported class members who are willing to join a class action
before an appropriate class is even determined, is dissonant with
the Supreme Court's directive that the FLSA be liberally construed
to effect its purposes. See Tony & Susan Alamo Found. v. Sec’y of
Labor, 471 U.S. 290, 296, 105 S. Ct. 1953, 85 L.Ed.2d 278 (1985).
Liberally construing the FLSA to effect its purposes, the court
finds that it is enough for the plaintiff to present evidence that there
may be other aggrieved individuals to whom a class action notice
should be sent, without requiring evidence that those individuals
actually intend to join the lawsuit.
Villarreal, 751 F. Supp. 2d at 916. Magistrate Judge Johnson recently reiterated her rejection of
this requirement in Luvianos v. Gratis Cellular, Inc., NO. CIV.A. H-12-1067, 2012 U.S. Dist.
LEXIS 183027, at *15-16 (S.D. Tex. Dec. 10, 2012) (“The court agrees with the latter camp that
Plaintiffs need not present evidence of the third element at this stage of the certification
process.”), adopted, 2012 U.S. Dist. LEXIS 182560 (S.D. Tex. Dec. 28, 2012).
b. Even If This Requirement Applies, Plaintiffs Have More Than
Adequately Fulfilled It.
Even if the Court finds that this requirement applies, Plaintiffs have adequately satisfied
it. Under this prong of the analysis, the lead Plaintiffs are “not required to identify and obtain
preliminary support from an un-specified numbers of potential class members.” Black v.
SetttlePou, P.C., Civil Action No. 3:10-CV-1418-K, 2011 U.S. Dist. LEXIS 15493, at *8-9
(N.D. Tex. Feb. 14, 2011) (Kinkeade, J.). Requiring Plaintiffs to identify and obtain preliminary
support from putative class members before obtaining conditional certification to issue notice
would be “putting the cart before the horse.” Id. Rather, “there must only be a “reasonable
basis” to believe that other aggrieved individuals exist.” Id. “The Fifth Circuit has found as few
as two declarations to satisfy the first stage of certification proceedings.” Jones, 281 F.R.D. at
292 (citing Tolentino, 716 F. Supp. 2d at 653).

PAGE 15
Here, Plaintiffs have shown a reasonable basis to believe that other aggrieved non-
exempt fast food restaurant employees exist. Seven Plaintiffs have filed this lawsuit,3
and it is
reasonable to expect that many of the non-exempt employees short-changed of overtime would
want to join once they are informed of the existence of this lawsuit and the fact that the FLSA
prohibits retaliation against them for seeking their unpaid overtime wages. Five of the Plaintiffs
in this case have provided sworn declarations which identify the existence of other similarly
situated employees who are subject to Defendants‟ practice and scheme of not giving employees
credit for any overtime hours worked, and instead, crediting those hours worked over 40 per
workweek to fictitious employees in order to avoid payment of time and one-half overtime
compensation to the Plaintiffs. (App. p. 3 at ¶9, p. 7 at ¶9 & p. 11 at ¶9). In those declarations,
Plaintiffs estimate that Defendants employed over 150 non-exempt employees for the three year
time period preceding July 29, 2013. (App. p. 3 at ¶9, p. 7 at ¶9 & p. 11 at ¶9).
In conclusion, all the relevant factors militate in favor of granting Plaintiffs‟ motion,
conditionally certifying this action, and authorizing Plaintiffs to issue notice of opt-in rights to
the other similarly situated fast food restaurant employees so they may also claim the unpaid
overtime compensation that Defendants owe them. Ryan v. Staff Care, Inc, 497 F. Supp. 2d 820,
825 (N.D. Tex. 2007) (Fish, J.) (conditionally certifying nationwide class in misclassification
case and stating that where “the employers‟ actions or policies were effectuated on a
companywide basis, notice may be sent to all similarly situated persons on a companywide
basis.”).
3
(Doc. No. 1).

PAGE 16
C. The Proposed Notice
Plaintiffs seek an order from the Court that Defendants produce to Plaintiffs‟ counsel in a
usable electronic format no later than seven (7) days from entry of the Court‟s Order, the full
names (including middle if known), last known addresses, last known residential and cell phone
numbers, e-mail addresses, last four digits of their Social Security Number4
, dates of birth, and
dates of employment, of all persons who work/worked for Defendants as non-exempt fast food
restaurant employees between July 31, 2010 and the present at Defendants‟ restaurants in Texas
and Louisiana. See Reid, 2010 U.S. Dist. LEXIS 118802, at *9 (requiring defendants to provide
plaintiffs “with the full names (including middle names if known), last known mailing addresses,
any alternate addresses, dates of birth, last four digits of the employees' Social Security numbers,
and dates of employment for all employees in the Class”); Barnett v. Countrywide Credit
Industries, Inc., Civ. A. 3:01-CV-1182-M, 2002 U.S. Dist. LEXIS 9099, at *6 (N.D. Tex. 2002)
(Lynn, B.) (ordering that names and last-known addresses of potential plaintiffs be turned over to
plaintiff in electronic format).
Plaintiffs have attached to this Motion their proposed notice to be sent to the putative
class members. (App. pp. 23-25). Also attached is the proposed notice of consent to join which
is to be included with that notice. (App. pp. 26-27). Plaintiffs request permission to distribute
these documents in both English and Spanish as many of the putative class members may speak
only Spanish.
4
The last four Social Security Numbers are needed for putative plaintiffs whose mail is returned
undeliverable. This data is helpful in researching the new mailing addresses for such individuals.
This information will be sought only for those putative class members whose mailed notice is
returned undeliverable. However, Plaintiffs ask that the Court order Defendants to have that
information available to counsel for Plaintiffs upon 24 hours‟ notice that any such putative class
members‟ mail is returned undeliverable.

PAGE 17
A FLSA notice represents the plaintiff‟s communication to the FLSA prospective class
members. King v ITT Continental Baking Co., 1986 U.S. Dist. LEXIS 29321, at * 6-7 (N.D. Ill.
Feb. 13, 1986). Thus, absent reasonable objections by either the defendant or the Court,
plaintiffs should be allowed to use the language of their choice in the notice. Id. (“although the
Court has both the power and the duty to ensure that the notice is fair and accurate, that power
should not be used to alter plaintiffs' proposed notice unless such alteration is necessary.”);
Littlefield v. Dealer Warranty Servs., LLC, 679 F. Supp.2d 1014, 1018 (E.D. Mo. 2010) (holding
that a court should not alter a plaintiff's proposed notice "unless certain changes are necessary.”)
Plaintiffs request that they be allowed a 90 day notice period. See White v. 14051
Manchester, Inc., No. 12CV469 JAR, 2012 U.S. Dist. LEXIS 178621, at *6, (E.D. Mo. Nov. 30,
2012) (90 day opt-in period); Pereira v Foot Locker, Inc., 261 F.R.D. 60, 72 (E.D. Pa. 2009) (90
days); Adams v Inter-Con Sec Systems, Inc., 242 F.R.D. 530, 542 (N.D. Cal. 2007) (90 days);
Sherrill v Sutherland Global Servs., 487 F. Supp. 2d 344, 351 (W.D.N.Y. 2007) (90 days); Da
Silva v M2/Royal Constr of La., LLC, Civil Action No.: 08-4021, 2009 U.S. Dist. LEXIS
100692, at *18 (E.D. La. Oct. 29, 2009) (90 days for construction workers at two locations);
Cryer v Intersolutions, 2007 U.S. Dist. LEXIS 29339, at *10 (D.D.C. April 7, 2007) (90 days for
400-person class).
Plaintiffs request that they be allowed to use the following information, in English and
Spanish, on the outside of the mailing envelope to the putative class members – “Notice of
Unpaid Overtime Lawsuit – Deadline to Join.” See Perrin v. Papa John's International, Inc., No.
09CV01335 AGF, 2011 U.S. Dist. LEXIS 117046, at * 17 (E.D. Mo. Oct. 11, 2011) (approving
"Notice of Unpaid Overtime Lawsuit -- Deadline to Join" because “the language fairly alerts the
recipients that the envelope contains time-sensitive material, and is not junk mail”); Putnam v.

PAGE 18
Galaxy 1 Marketing, Inc., 276 F.R.D. 264, 277 (S.D. Iowa Aug. 23, 2011) (approving similar
language).
Plaintiffs ask that they be allowed to provide putative class members with a prepaid self-
addressed envelope to be returned to counsel for Plaintiffs. See Black, 2011 U.S. Dist. LEXIS
15493, at *15 (authorizing enclosure of a "self-addressed, postage paid return envelope"); Perrin,
2011 U.S. Dist. LEXIS 117046, at * 17 (“Numerous courts have approved the use of a prepaid
envelope and the Court also approves its use in this case”) (citing cases).
Finally, Plaintiffs ask that they be permitted to send a postcard reminder to putative class
members who have not returned executed notices of consent 30 days prior to the deadline to join
reminding them of the deadline to join. Adams, 2007 U.S. Dist. LEXIS 83147, at *14 (approving
reminder card to class members who had not submitted claims).
IV. CONCLUSION
Plaintiffs respectfully pray that the Court grant this Motion to Conditionally Certify a
Collective Action and order that Notice be issued to the putative class members as described
above. Plaintiffs request that the Court award such other and further relief to which Plaintiffs
may be justly entitled.

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