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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN DAN CERJANEC, RODRIGO BRAVO, MARK MODLIN, and WILLIAM WINFREY, on behalf of themselves and all others similarly situated, Plaintiffs, vs.

Case No:17-10619 Hon. Laurie J. Michelson ORAL ARGUMENT REQUESTED

FCA US LLC, Defendant. AKEEL & VALENTINE, PLC Shereef H. Akeel (P54345) Hasan Kaakarli (P81099) Adam S. Akeel (P81328) 888 W Big Beaver Road, Suite 910 Troy, MI 48084 (248) 269-9595 shereef@akeelvalentine.com hasan@akeelvalentine.com adam@akeelvalentine.com PITT, McGEHEE, PALMER & RIVERS, PC Michael L. Pitt (P24429) Cary S. McGehee (P42318) Robert W. Palmer (P31704) Megan A. Bonanni (P52079) Beth M. Rivers (P33614) 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 (248) 398-9800 mpitt@pittlawpc.com cmcgehee@pittlawpc.com rpalmer@pittlawpc.com mbonanni@pittlawpc.com brivers@pittlawpc.com

MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. Jerome R. Watson (P27082) Brian M. Schwartz (P69018) 150 West Jefferson, Suite 2500 Detroit, Michigan 48226 (313) 963-6420 watson@millercanfield.com schwartzb@millercanfield.com LITTLER MENDELSON, P.C. Daniel E. Turner (Ga. Bar No. 719330) Jacqueline Phipps Polito (NY Bar No. 2582690) Tasha K. Inegbenebor (Ga. Bar. No. 382905) 3344 Peachtree Road N.E., Suite 1500 Atlanta, GA 30326 (404) 233-0330 dturner@littler.com jpolito@littler.com tinegbenebor@littler.com Attorneys for Defendant

Attorneys for Plaintiffs

DEFENDANT’S BRIEF REGARDING PROPOSED NOTICE TO PUTATIVE COLLECTIVE ACTION MEMBERS


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TABLE OF CONTENTS Page I.

INTRODUCTION ................................................................................1

II.

ARGUMENT .......................................................................................2

III.

A.

The Notice Should Inform Putative Collective Members Of Their Potential Liability For Costs .......................................2

B.

Plaintiffs’ Proposed Notice Does Not Accurately State The Collective Action Definition Repeatedly Alleged by Plaintiffs .....................................................................................4

CONCLUSION ..................................................................................10

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TABLE OF AUTHORITIES Page(s) Cases Allen v. Sears Roebuck and Co., 2009 WL 10680388 (E.D. Mich. June 29, 2009) (Steeh, J.) ................................ 3 Henry v. All. for Health, Inc., 2005 WL 8159895 (E.D.N.Y. Dec. 8, 2005) ........................................................ 9 Herrera v. U.S. Serv. Indus., Inc., 2013 WL 1610414 (M.D. Fla. Apr. 15, 2013)...................................................... 9 Hoffman-LaRoche v. Sperling, 493 U.S. 165 (1989) .............................................................................................. 2 Holmes v. Swissport Fueling, Inc., 2017 WL 8794900 (M.D. Fla. Sept. 1, 2017) ....................................................... 8 Kilmon v. Saulsbury Indus., Inc., 2017 WL 7052328 (W.D. Tex. Dec. 13, 2017) .................................................... 3 Knispel v. Chrysler Grp. LLC, 2012 WL 553722 (E.D. Mich. Feb. 21, 2012) (Cox, J.)....................................... 3 Snide v. Discount Drug Mart, 2011 WL 5434016 (N.D. Ohio Oct. 7, 2011) ....................................................... 4

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I.

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INTRODUCTION Pursuant to the Court’s July 22, 2019 Order (Dkt. 90), counsel for Defendant

FCA US LLC (“FCA US” or “Defendant”) conferred with counsel for Dan Cerjanec, Rodrigo Bravo, Mark Modlin, and William Winfrey (collectively “Plaintiffs”) to negotiate the contents of the proposed notice (hereinafter “Notice”) to the putative collective action members.1 Plaintiffs improperly request exclusion of specific language in the Notice that either contradicts Plaintiffs’ admissions and allegations or has already been expressly rejected by this Court. While the Parties have been able to compromise on some of the issues (including, for example, the opt-in period will be 45 days and the consent forms will be returned to the third party administrator), FCA US could not agree to two (2) of Plaintiffs’ proposals.2

1

FCA US continues to oppose conditional certification of Plaintiffs’ requested class and does not waive its opposition by filing this brief and complying with the Court’s Order. 2 FCA US notes that the Court is evaluating the statutes of limitations issues raised in its prior briefs. As previously explained, claims based on PLM scores for 2014, 2015, and some in 2016 are not timely and that issue should be addressed prior to issuing the Notice. As a result, FCA US maintains that the “any year from 2014 to the present” language used by Plaintiffs as the range for the putative collective action is premature because the Court has not yet determined that an employee who received PLM scores in 2014, 2015, and 2016 have a timely claim. (See Dkt. 72, PageID. 2805.)


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The chart below summarizes the disputed issues: Plaintiffs’ Proposal

Defendant’s Proposal

Opt-Ins’ The Notice should not state The Notice should state that opt-ins Potential that opt-ins might be liable for might be liable for costs. Liability costs. The class definition should be The class definition should be crafted to Class Definition crafted very broadly and accurately reflect Plaintiffs’ theory of should not include any the case (which alleges that Forced reference to Plaintiffs’ Forced Ranking is used during the Calibration Ranking/ Calibration Process Component of FCA US’s PLM Process theory that Plaintiffs have and causes a disparate impact) as alleged in this lawsuit. represented in their Complaint and directly to the Court. Plaintiffs’ demands are inconsistent with decisions from district courts in the Sixth Circuit and throughout the country and overstep the purpose of judicial notice as contemplated by the U.S. Supreme Court in Hoffman-LaRoche v. Sperling, 493 U.S. 165 (1989). For these reasons and as set forth further below, FCA US requests that the Court accept its proposals and reject Plaintiffs’ requests regarding the content of the Notice and related procedures. II.

ARGUMENT A.

The Notice Should Inform Putative Collective Members Of Their Potential Liability For Costs

Plaintiffs’ proposed Notice fails to unambiguously advise recipients that they may be liable for costs if they choose to proceed with this action and/or if FCA US prevails. Rather, Plaintiffs seek to omit any reference to this possibility, the absence of which may lead opt-in plaintiffs to falsely believe they bear absolutely no

2


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financial risk in joining the collective action. Plaintiffs do not dispute that such a disclosure is accurate. Rather, Plaintiffs seek to omit this information that is critical to an opt-in plaintiff’s ability to make an informed decision as to whether to join the action because Plaintiffs posit (without evidence) that it would have a chilling effect on putative collective action participation. However, the Eastern District of Michigan has disagreed and found that such a warning is warranted and should be included. See Allen v. Sears Roebuck and Co., 2009 WL 10680388, at *2 (E.D. Mich. June 29, 2009) (Steeh, J.) (holding notice should warn of costs and fees as follows: “There may be costs and fees associated with participating in the lawsuit which you should discuss with a lawyer prior to joining the lawsuit”). Proper notice must fully inform potential opt-in plaintiffs of both their rights and their responsibilities should they choose to join this action. Knispel v. Chrysler Grp. LLC, 2012 WL 553722, at *8 (E.D. Mich. Feb. 21, 2012) (Cox, J.) (holding notice should include information about possible liability for defendant’s costs of litigation). To this end, the Notice must alert the putative collective action members that they may have to pay a defendant’s costs in the event their claims are unsuccessful. Kilmon v. Saulsbury Indus., Inc., 2017 WL 7052328, at *4 (W.D. Tex. Dec. 13, 2017) (“The Court agrees and is of the opinion that the notice should explain the obligations of potential opt-in plaintiffs as follows: While this suit is proceeding, you may be required to respond to written questions, sit for

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depositions, and/or testify in court. If judgment is rendered in favor of Defendant, the Court may tax certain statutory costs against the unsuccessful workers.”); Snide v. Discount Drug Mart, 2011 WL 5434016, at *6 (N.D. Ohio Oct. 7, 2011) (“Courts have held that potential plaintiffs, in order to make an informed decision about whether to opt-in, should be made aware that there is a possibility that they may be liable for a defendant’s costs of litigation. As such, the notice shall contain a statement that the opt-in plaintiffs could be liable for the payment of Drug Mart’s costs if it prevails.” (citations omitted)). Here, Plaintiffs’ proposed Notice wholly ignores that the opt-in plaintiffs could bear a portion of the costs associated with FCA US’ successful defense of this case. The Notice should affirmatively disclose potential financial risks at the outset, so that potential opt-ins can make an informed decision regarding their rights and obligations associated with this litigation. More specifically, the Notice should include the following language: “If Plaintiffs lose, you may be liable for FCA US’s costs of litigation.” B.

Plaintiffs’ Proposed Notice Does Not Accurately State The Collective Action Definition Repeatedly Alleged by Plaintiffs

Plaintiffs’ proposed Notice contains a description of the age discrimination putative collective action that does not reflect Plaintiffs’ allegations and theory of

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their case and therefore is overbroad.3 Consistent with Plaintiffs’ pleadings and representations before this Court, Defendant proposed that the collective action definition accurately reflect that Plaintiffs’ challenge is limited to an alleged “Forced Ranking/Calibration Process” and not the entire PLM Process.4

See Second

Amended Complaint, Dkt. 37 ¶¶ 26, 27, 61; see also Plaintiffs’ Motion for Conditional Certification, Judicial Notice, and Motion to Compel, Dkt. 41 at PageID. 1760-61 (Plaintiffs represent, “The proposed class definition is as follows: all salaried, non-union employees ages 55 and older with job titles ranging from Senior Manager, Senior Professional, Mid-Level Professional, and Professional that were and/or remain subject to Defendant FCA’s PLM Forced Ranking/Calibration Process or practice beginning in the year 2014 and continuing to the present who received a PLM Score of 5 or lower.” (emphasis added)). Plaintiffs’ version of the Notice now repudiates those prior repeated and very clear representations and

3

As an initial matter, the Parties agreed at the July 19, 2019 hearing that the purported collective and class actions should exclude employees that are bound by the Employee Dispute Resolution Process (“EDRP”). See Dkt. 72, PageID. 275960, 2766. The Parties have separately memorialized that agreement in writing. Specifically, Plaintiffs have agreed that, “if a potential collective/class action member signed an application containing an arbitration agreement that member will not be part of the collective/class action.” 4 According to Plaintiffs’ counsel: “We’re not talking about the score before the calibration process. We’re talking that after, when they implement that forced distribution, during the calibration process, after it, that’s where you see the disparate impact or the actual results.” See Dkt. 69, PageID. 2664, June 7 Hearing Transcript (emphasis added).

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instead suggests that the class is comprised of any individual who received a 5 or below.

This is simply inaccurate. Disseminating a Notice with such a gross

misrepresentation is not permissible.5 The disputed language is reflected below: COMPOSITION OF THE AGE DISCRIMINATION COLLECTIVE ACTION Plaintiffs have brought this lawsuit on behalf of themselves and all other employees whom they claim are similarly situated to them. Specifically, their lawsuit has been brought on behalf of any current and former FCA US employee who meets the following criteria: 1. Hired by FCA US before April 25, 1996; and 2. Held a job title of either Senior Manager, Senior Professional, Mid-level Professional, and/or Professional in any year since 2014; and 3. As a result of the purported forced ranking during the calibration component of the PLM employee performance rating process received a final PLM rating of 5 or below while holding any of the job titles above and was age 55 or older when the final PLM rating was received. FCA US denies that any employees are similarly situated to Plaintiffs. See Exhibit A (Defendant’s proposed Notice) (emphasis added to reflect disputed

5

Notably, in the Parties’ initial conference to discuss the Notice, Plaintiffs requested that if the “Forced Ranking/Calibration Process” language were to be included within the class definition, that it would be itemized (as paragraph 3) to promote clarity for the putative collective action members. Defendant agreed to that request and the draft proposed Notice (as attached in Exhibit A) reflects the Parties’ prior compromise. Plaintiffs’ counsel does not dispute that the Parties initially agreed on this issue. However, Plaintiffs have since changed their position on this issue. They refer to the “Forced Ranking/Calibration Process” language as “legal jargon.” Plaintiffs now state that they have had further reflection on this issue and “[w]hile the language may accurately reflect what the Plaintiffs must ultimately prove to prevail” they believe it may cause “confusion” and that it does not actually define the class. FCA US fundamentally disagrees with their interpretation of the class as it is in direct conflict with the allegations in their Complaint.

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language). Plaintiffs have repeatedly argued and represented that the language they now seek to avoid reflects the alleged “policy” they are challenging. During the June 5, 2019 hearing, Plaintiffs’ counsel answered the Court’s inquiry as follows: THE COURT: So, what is the causal connection? MR. S. AKEEL: [I]t’s consistent to this today, it is this forced ranking policy implemented during the calibration process that is being challenged, it is also what caused the disparate impact to plaintiffs… See Dkt. 69, PageID. 2705, June 7 Hearing Transcript (emphasis added). Thus, this current dispute is wholly unnecessary and a waste of the Parties’ and judicial resources. Similarly, during the July 19, 2019 hearing, Plaintiffs’ counsel expressly agreed that the class definition included this limitation and expressly confirmed the same to the Court: THE COURT: Okay. So, just give me the definition, the current definition so we’re all working from the same definition. The current class definition. MR. AKEEL: Okay. I’ll get that. (A brief pause) MR. AKEEL: The current class definition for a collective action is, All salaried, non-union employees age 55 and older with job titles ranging from Senior Management, Senior Professional, Mid-level Professional, and Professional, that work or remain -- work and/or remain subject to Defendant FCA’s PLM forced ranking calibration process or practice beginning in the year 2014 and continuing to the present who received a PLM score of 5 or lower, that was our second amended complaint. See Dkt. 72, PageID. 2765, July 19 Hearing Transcript (emphasis added).

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Plaintiffs’ counsel further emphasized to the Court: THE COURT: All right. I think it may be best if we don’t go down this path. You’ve pled what you’ve pled. We’re here on the pleading stage, the collective certification. You should look at your pleading. You should look at your complaint in terms of what you’ve alleged is the neutral policy because that’s what I’m going to evaluate. And I’ll just tell you, my understanding of the neutral policy is not just the final score, it’s the forced ranking. MR. AKEEL: Correct, it’s the forced ranking. But in our definition we focus -- we define PLM score in our definition, we don’t say, “PLM rating”, which is the initial one. In our definitions, Paragraph 61 of our Second Amended Complaint for Cerjanec we focused who receive the PLM score of 5 or below, we’re not focusing on the rating. It’s been in our definition, you know, for -so, that’s -- and that dovetails with what we filed under seal, it’s the PLM scores that demonstrate a disparate impact and we are indicating that it’s that forced distribution that has caused this disparate impact and we plead that plausibly. So -THE COURT: Right, the forced distribution has to cause it. There’s got to be a causal component, it can’t just be the score. Id. at Dkt. 72, PageID. 2777 (emphasis added). Thus, the language Defendant included within the proposed Notice simply tracks the language in Plaintiffs’ Complaint (as seemingly agreed to by Plaintiffs at the hearing). Plaintiffs’ objection to its inclusion is without merit and unwarranted. See Holmes v. Swissport Fueling, Inc., 2017 WL 8794900, at *4 (M.D. Fla. Sept. 1, 2017) (explaining “the Court finds that the class definition is overly broad in a material respect” because “the proposed class definition in the Motion for Conditional Certification includes employees who were not paid proper wages due

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to ‘various auto-deduction policies’” while the operative compliant “contains allegations concerning only two so-called ‘auto-deduct’ policies” and it was “therefore, unclear whether the phrase ‘various auto-deduction policies,’ as it appears in the proposed class definition, is limited to the specific ‘auto-deduct’ policies identified in the operative complaint or whether it encompasses other unidentified policies”), report and recommendation adopted, 2017 WL 4129838 (M.D. Fla. Sept. 19, 2017); Herrera v. U.S. Serv. Indus., Inc., 2013 WL 1610414, at *3 (M.D. Fla. Apr. 15, 2013) (“Plaintiff’s proposed class goes beyond the scope of the miscalculation allegations contained in the Amended Complaint and for this reason, plaintiff’s motion to conditionally certify a collective action is denied.”); see also Henry v. All. for Health, Inc., 2005 WL 8159895, at *6 (E.D.N.Y. Dec. 8, 2005) (holding that Plaintiff’s class definition language in the proposed collective action class notice “require[d] redrafting” because it was overbroad and created confusion based on plaintiff’s theories of the case), report and recommendation adopted, 2006 WL 8439515 (E.D.N.Y. Sept. 29, 2006). Plaintiffs simply have no basis to support their current position. As such, FCA US requests that the Notice include the proposed language which reflects Plaintiffs’ actual claims as set forth by Plaintiffs at the prior hearings and in their prior case filings.

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III.

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CONCLUSION For all the reasons stated above, Defendant FCA US LLC requests that this

Court agree that the Notice should include: (1) an accurate disclosure regarding an opt-in plaintiff’s financial risks associated with joining the putative collective action and (2) a truthful representation of the class definition which reflects Plaintiffs’ operative theory of their case. Respectfully submitted, /s/ Jerome R. Watson (P27082) Jerome R. Watson Miller, Canfield, Paddock and Stone, P.L.C. Attorney for Defendant 150 West Jefferson, Suite 2500 Detroit, Michigan 48226 (313) 963-6420 watson@millercanfield.com

/s/ Daniel E. Turner (GA Bar 719330) Daniel E. Turner Littler Mendelson, P.C. Attorney for Defendant 3344 Peachtree Road N.E. Suite 1500 Atlanta, GA 30326.4803 Phone: 404.233.0330 dturner@littler.com

August 9, 2019

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CERTIFICATE OF SERVICE I hereby certify that on August 9, 2019, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to: Shereef H. Akeel Hasan Kaakarli Adam S. Akeel Michael L. Pitt Megan A. Bonanni Robert W. Palmer Carey S. McGehee Beth M. Rivers

shereef@akeelvalentine.com hasan@akeelvalentine.com adam@akeelvalentine.com mpitt@pittlawpc.com mbonanni@pittlawpc.com rpalmer@pittlawpc.com cmcgehee@pittlawpc.com brivers@pittlawpc.com

/s/ Daniel E. Turner Daniel E. Turner Georgia Bar No. 719330 Littler Mendelson, P.C. Attorney for Defendant

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2019_8-9 Defendant's Motion Regarding Proposed Notice to Putative Collective Action Members  

2019_8-9 Defendant's Motion Regarding Proposed Notice to Putative Collective Action Members