Oconner v. Agilant Solutions, Inc.

• Citation: 444 F.Supp.3d 593
• Decision Date: 12 March 2020
• Docket Number: 1:18-cv-6937-GHW
• Parties: Javan OCONNER, individually and on behalf of all others similarly situated, Ramin Pena, individually and on behalf of all others similarly situated, Jonathan Cepada, individually and on behalf of all others similarly situated, Shawn Griffith, Earl Rashadd, Khazaizal T. McGann, Obas Claudeny, individually and on behalf of all others similarly situated, Gonzales Onadi, individually and on behalf of all others similarly situated, Janice Hamilton, individually and on behalf of all others similarly situated, Osman Matamoros, individually and on behalf of all others similarly situated, Michael Tam, individually and on behalf of all others similarly situated, Ramon Velazquez, individually and on behalf of all others similarly situated, Joshua Paul Davis, individually and on behalf of all others similarly situated, Mustafa Lamb, individually and on behalf of all others similarly situated, Alpha Mamadou Ly, individually and on behalf of all others similarly situated, Rashish Paul, individually and on behalf of all others similarly situated, L'Shandar Jones, individually and on behalf of all others similarly situated, Ricardo Carvajal, individually and on behalf of all others similarly situated, and Salvador J. Massa, individually and on behalf of all others similarly situated, Plaintiffs, v. AGILANT SOLUTIONS, INC., doing business as ASI System Integration, Inc., Defendant.
• Court: U.S. District Court — Southern District of New York

444 F.Supp.3d 593

Javan OCONNER, individually and on behalf of all others similarly situated, Ramin Pena, individually and on behalf of all others similarly situated, Jonathan Cepada, individually and on behalf of all others similarly situated, Shawn Griffith, Earl Rashadd, Khazaizal T. McGann, Obas Claudeny, individually and on behalf of all others similarly situated, Gonzales Onadi, individually and on behalf of all others similarly situated, Janice Hamilton, individually and on behalf of all others similarly situated, Osman Matamoros, individually and on behalf of all others similarly situated, Michael Tam, individually and on behalf of all others similarly situated, Ramon Velazquez, individually and on behalf of all others similarly situated, Joshua Paul Davis, individually and on behalf of all others similarly situated, Mustafa Lamb, individually and on behalf of all others similarly situated, Alpha Mamadou Ly, individually and on behalf of all others similarly situated, Rashish Paul, individually and on behalf of all others similarly situated, L'Shandar Jones, individually and on behalf of all others similarly situated, Ricardo Carvajal, individually and on behalf of all others similarly situated, and Salvador J. Massa, individually and on behalf of all others similarly situated, Plaintiffs,

v.AGILANT SOLUTIONS, INC., doing business as ASI System Integration, Inc., Defendant.

1:18-cv-6937-GHW

United States District Court, S.D. New York.

Signed March 12, 2020

Rachel Meredith Haskell, Christopher Quincy Davis, The Law Office of Christopher Q. Davis, PLLC, New York, NY, for Plaintiffs.

Ira A. Sturm, Samuel Bloom, Raab, Sturm & Goldman, LLP, Fort Lee, NJ, for Defendant.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge

After Lead Plaintiffs in this action filed a complaint seeking certification of a collective under the Fair Labor Standards Act ("FLSA") and a class under Federal Rule of Civil Procedure 23, Defendant Agilant Solutions, Inc. ("ASI") rolled out a new policy under which its employees—including putative collective and class members—would be required to sign an agreement to submit claims against ASI to arbitration as a condition of their employment. Neither the agreement nor ASI management disclosed that this litigation was pending or that putative plaintiffs would forfeit their right to participate in this case by agreeing to arbitrate disputes against ASI. Evidence suggests that the purpose of the new arbitration policy rollout was to foreclose putative plaintiffs from joining this lawsuit, and ASI's counsel in this litigation was intimately involved in its introduction. Because ASI's communications with putative class and collective members were improperly coercive and misleading, Plaintiff's motion to invalidate the enforcement of the Arbitration Agreement as to putative plaintiffs in this litigation is GRANTED. Plaintiffs' motion for corrective notice is also GRANTED. However, because it is broader than necessary to protect putative plaintiffs' interest, Plaintiffs' motion for a protective order is DENIED.

I. BACKGROUND¹

Lead Plaintiffs were employed as Field Technicians ("FTs") either directly or indirectly by ASI. Lead Plaintiffs filed a complaint alleging breaches of New York Labor Law and the FLSA on August 1, 2018. Dkt No. 1. The complaint sought certification of an FLSA collective action and a class action pursuant to Federal Rule of Civil Procedure 23. Id. Lead Plaintiffs moved for conditional certification under the FLSA on May 15, 2019, Dkt No. 46. On November 22, 2019, the Court granted Lead Plaintiffs' request to conditionally certify a collective action consisting of FTs who were then employed by ASI or were previously employed for three years prior to May 15, 2019, either directly or indirectly, in New York City. O'Conner I , 419 F.Supp.3d at 748, 2019 WL 6251437, at *7.

On August 22, 2019—after Plaintiffs filed their motion for conditional certification but before the Court granted it—Defendant "roll[ed] out a new policy whereby new and existing employees would be asked to sign a document titled ‘Statute of Limitations Agreement’ and ‘Arbitration Agreement’ " (collectively, the "Arbitration Agreement"). Stipulation of Uncontested Facts ("Stipulation"), Ex. C to the Declaration of Christopher Q. Davis ("Davis Decl."), Dkt. No. 75-3, ¶ 2. The Arbitration Agreement states:

In consideration of my employment with the Company ... I agree that any and all controversies, claims, or disputes ... arising out of, relating to, or resulting from my assignment or employment with the company ... shall be subject to binding arbitration under the Federal Arbitration Act and pursuant to New York Law. Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include ... claims arising under ... [the] Fair Labor Standards Act.

Arbitration Agreement, Ex. A to Davis Decl., Dkt. No. 75-1, at 3. The Arbitration Agreement does not mention the pendency of this litigation.

FTs were required to sign the Arbitration Agreements as a condition of continued employment with ASI. The Statute of Limitations Agreement states that ASI "is requiring as a condition of employment that any claim or lawsuit relating to your service or application or service with the Company must be filed no more than twelve (12) months after the date of the employment action that is the subject of the claim or lawsuit." Id. (emphasis added). Likewise, the Arbitration Agreement states that "[i]n consideration of my employment with the Company ... I agree that any and all controversies, claims, or disputes with anyone (including the Company and any employee ...[) ] shall be subject to binding arbitration." Id. (emphasis added). FTs understood that refusing to sign the Arbitration Agreement could have a negative impact on their employment relationship with ASI. See Affidavit of Javan O'Connor ("O'Connor Aff."), Ex. E to Davis Decl., Dkt No. 75-5, ¶ 5.

Defendant's counsel in this litigation, Ira Sturm, was intimately involved in the rollout of the Arbitration Agreements. Sturm apparently drafted the Arbitration Agreement and sent it to Sonny Bindra, ASI's Vice President and General Counsel. See Emails, Ex. B to Davis Decl., Dkt No. 75-2, at 145-62 (redacted emails exchanging drafts of the Arbitration Agreement). Bindra then emailed the Arbitration Agreement to Joe Roman, an Executive Director at ASI, and had a phone call with him on the same day to explain how to distribute it to ASI managers. Deposition of Joseph Roman ("Roman Dep."), Dkt No. 75-4, at 30:12-25; 58:18-59:7; see also Emails at 113-18 (email from Bindra to Roman with the subject line "Technician's Agreement" attaching the Arbitration Agreement).

None of ASI's employees explained to FTs that they would forfeit their right to participate in this pending litigation by signing the Arbitration Agreement. Stipulation ¶ 15. On the call during which Roman explained to managers that they were responsible for procuring FT signatures on the Arbitration Agreements, he did not mention that this litigation was pending. See Deposition of LeVar Chambers ("Chambers Dep."), Dkt No. 75-6, at 18:17-23. Indeed, Roman himself was unaware that the Arbitration Agreement might foreclose Plaintiffs from participating in this litigation. Roman Dep. at 114:19-115:25. Roman testified that the purpose of the call was to "prepare to distribute the document" and explain to managers that the document represented a "new policy that was going into effect." Id. at 46:8-22; 48:20-49:22. Managers were not instructed to tell FTs that they were not required to sign the Arbitration Agreement as a condition of employment. Id. at 90:8-12.

Leadership at ASI insisted that the Arbitration Agreements be returned quickly. On his call with ASI managers, Roman asked that the managers ensure that the documents were "signed at their meetings." Roman Dep. 50:20-25. This call took place on Thursday, August 22, 2019, and Roman asked that the managers procure signed Arbitration Agreements by the following Monday, August 26, 2019. Id. at 73:4-74:9. Roman then emailed a copy of the Arbitration Agreement to the managers for distribution to FTs. Stipulation ¶¶ 5-6; Roman Dep. at 60:20-62:8; Emails at 13. Subsequently, the managers distributed the Arbitration Agreements to FTs on late Thursday afternoon or Friday morning. Stipulation at ¶¶, 13-14; Roman Dep. at 50:20-25; see also Emails at 127. Twenty-four hours after Roman provided the Arbitration Agreements to managers for distribution and execution, Bindra wrote in an email to Roman that Sturm sought "feedback on the document the techs are being asked to sign." Emails at 163. In response, Roman joked that if there was "any resistance" to signing the Arbitration Agreement, he would "give them Ira['s] home number and address." Id.

Contemporaneous email evidence strongly suggests that ASI management intended the Arbitration Agreements to preclude FTs from participating in this litigation. On August 26, 2019, Roman reported to Bindra that "we are almost done getting all the signatures," although "[t]here were a few in [Brooklyn] who [were] hesitant to sign." Emails at 169. Roman noted that this "might be a sign" that the holdouts were "waiting to join" this litigation. Id. Two days later, on Wednesday, August 28, 2019, Roman emailed Bindra that "[a]ll of the techs have signed including the few that were hesitant in [Brooklyn]. One was on vacation and [FT] Norman [Henry] still wants time." Id. at 53. Roman noted that "these are the only 2 that did not sign." Id. When Henry requested thirty days to allow a lawyer to review and respond to the Arbitration Agreement, Roman wrote in an email to Bindra "I don't want to give him 30 days. We could say he can't work until it's signed?" Emails at 39. The next day, Roman asked Bindra how he "suggest[ed he] handle Norman?" Id. at 64. Bindra responded that Roman should "wait a bit" so that they...