Braunstein v. Eastern Photographic Laboratories, Inc.

Decision Date14 May 1979
Docket NumberNo. 411,D,411
Parties23 Wage & Hour Cas. (BN 1299, 85 Lab.Cas. P 33,735 Roberta BRAUNSTEIN, Plaintiff-Appellee, v. EASTERN PHOTOGRAPHIC LABORATORIES, INC. and Heart of America Portraits, Inc., Defendants-Appellants. ocket 78-7464.
CourtU.S. Court of Appeals — Second Circuit

Shaun S. Sullivan, New Haven, Conn. (William J. Doyle, Marshall B. Babson, and Wiggin & Dana, New Haven, Conn., of counsel), for defendants-appellants.

A. Reynolds Gordon, Bridgeport, Conn., for plaintiff-appellee.

Before WATERMAN, TIMBERS and VAN GRAAFEILAND, Circuit Judges.

PER CURIAM:

We affirmed by our order entered November 17, 1978 the order of the district court from which an appeal was taken and which appeal was expedited by a prior order of our Court entered September 21, 1978. In light of the petition for rehearing by defendants-appellants addressed to the panel that heard this appeal on the merits and in accordance with our practice in appropriate cases of publishing previously unpublished decisions or orders of this Court, Continental Stock Transfer & Trust Co. v. SEC, 566 F.2d 373 (2 Cir. 1977) (per curiam), we now publish the following opinion in the instant case which in substance is our order entered November 17, 1978.

The essential issue raised on this appeal is whether a district court has the power to order that notice be given to other potential members of the plaintiff class under the "opt-in" provision of the Fair Labor Standards Act dealing with actions for nonpayment of statutorily required minimum wages and overtime compensation. 29 U.S.C. § 216(b) (1976).

We believe that Judge Daly took the proper course in authorizing notice to other potential plaintiffs in this action under the Fair Labor Standards Act. Although one might read the Act, by deliberate omission, as not providing for notice, we hold that it makes more sense, in light of the "opt-in" provision of § 16(b) of the Act, 29 U.S.C. § 216(b), to read the statute as permitting, rather than prohibiting, notice in an appropriate case. Cantu v. Owatonna Canning Co., Docket No. 3-76-Civ. 374 (D.Minn. April 12, 1978); Lantz v. B-1202 Corp., 429 F.Supp. 421 (E.D.Mich.1977); Gomez v. Buckeye Sugars, Inc., Docket No. C73-41 (N.D.Ohio 1973). Contra, Kinney Shoe Corp. v. Vorhes, 564 F.2d 859 (9 Cir. 1977). Although we agree with Judge Choy's view in Kinney that due process does...

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    ...Roche, 493 U.S. at 173, 110 S.Ct. 482; Prickett v. DeKalb County, 349 F.3d 1294, 1297 (11th Cir.2003); Braunstein v. Eastern Photographic Labs., 600 F.2d 335, 335 (2d Cir.1979). Those efficiency gains, however, cannot come at the expense of a defendant's ability to prove a statutory defense......
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    ...concerning defendant's Special Early Retirements, whether offered or received into evidence or not. See Braunstein v. Eastern Photographic Labs., 600 F.2d 335, 336 (2d Cir.) cert. denied 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1046 (1979) (FLSA); Lantz v. B-1202 Corp., 429 F.Supp. 421 (E.D.......
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    ...class members in an FLSA action in order to serve the "broad remedial goal" of the Act. See also Braunstein v. E. Photographic Labs., Inc., 600 F.2d 335, 335-36 (2d Cir. 1978) (holding that the district court "has the power to order that notice be given to other potential members of the pla......
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