In Shucker v. Flowers Foods, Inc., et al., the Southern District of New York denied a motion for conditional certification of an FLSA collective advanced by a group of delivery persons contending that they were misclassified as independent contractors, rather than employees. See No. 16-CV-3439 (KMK) (S.D.N.Y. Aug. 24, 2017). The Court found that the proposed collective was largely duplicative of other, already-formed collectives, in cases pending in the District of Vermont and the Eastern District of Pennsylvania against the same defendants.
The Defendants argued that the Motion should be denied because approximately 94 of the 95 potential opt-ins had already received notice and were provided an opportunity to join collective actions pending in other District Courts. The Defendants relied upon cases from a variety of jurisdictions holding that proposed FLSA collectives that would be duplicative of others should either be denied certification or dismissed outright.
The Court noted that many of the cited cases relied upon the “first-filed rule,” which stands for the general proposition that “where there are two competing lawsuits, the first suit should have priority, absent the showing of balance of convenience or special circumstances.” However, the Court declined to rely upon the first-filed rule, disagreeing that duplicative FLSA claims must be dismissed outright because “[n]othing in the FLSA requires a party with a claim under the FLSA to join an opt-in collective action in order to vindicate his or her rights.”
While the Court did not rely upon the first-filed rule expressly, it found its purpose in avoiding duplicative litigation compelling. The Court also expounded upon the underlying purpose of conditional certification, which is to avoid duplicative actions and further judicial economy. The Court found these principles sufficient to authorize it to exercise its discretion to deny conditional certification.
Shucker appears to be the first decision in New York to confront this procedural anomaly directly and provides a well-reasoned argument to be used by employers confronting similar (or identical) FLSA litigations in multiple jurisdictions. However, an employer must still balance the costs versus benefits to opposing a motion for conditional certification, even under these circumstances: while the Court refused to form a collective, the Court did not dismiss the action and noted that other potential plaintiffs who were not opt-ins in the other litigations remained free to file individual suits. Thus, while the employer “won,” the employer could theoretically be forced to defend a multitude of individual suits.
