United States District Court, E.D. Wisconsin
ANDRE JEAN-BAPTISTE, individually and on behalf of all persons similarly situated, Plaintiff,
GLK FOODS LLC, Defendant.
ORDER GRANTING MOTION FOR APPROVAL AND MAILING OF
William C. Griesbach, Chief Judge United States District
November 12, 2015, this Court certified a class consisting of
all migrant agricultural workers furnished to Defendant GLK
Foods LLC by farm labor contractor Cabioch Bontemps (d/b/a
Kroprite Harvesting) in 2011 for employment at GLK’s
Bear Creek, Wisconsin processing facility. ECF No. 27.
Plaintiff has now filed a motion for approval of a notice to
be sent to class members and for approval of the mailing of
the notice to the members of the class at each class
member’s permanent address. ECF No. 31.
parties agree on the content of the proposed notice, ECF No.
31-1, provided that it is translated into the class
members’ native language, Haitian Creole. ECF No. 31 at
2. The notice has now been translated by Plaintiff into
Haitian Creole, ECF Nos. 34 & 34-1, and Defendant does
not object to the translation. ECF No. 35 at 1.
parties disagree about whether to include with the notice a
form class members may complete and return to opt out of the
case. Plaintiff opposes Defendant’s request to include
the opt-out form as unnecessary and likely to cause confusion
to the class members, most of whom are not fluent in English.
ECF No. 31 at 2. Plaintiff asserts that the due process
rights of the absent class members are adequately protected
by the mailing to them of a notice simply explaining their
right to opt out of the case, and Plaintiff notes that
Federal Rule of Civil Procedure 23(c)(2) does not require the
sending of any opt out form. ECF No. 31 at 2–3.
Defendant argues the opt-out form should be included for the
convenience of the putative class members. ECF No. 35 at 1.
Specifically, Defendant notes that Plaintiff’s notice
imposes the burden upon the putative class members of
drafting and delivering some form of written communication,
in English, to the Clerk of the Court to exercise their right
to opt out of the case. Id. at 4. Defendant submits
a proposed opt out form, a version of the opt out form
translated into Haitian Creole, and a Certificate of Accuracy
indicating the opt out form was properly translated by a
certified translator. ECF No. 35-2. Defendant requests that a
pre-addressed and stamped envelope be included in each
mailing in addition to the opt out form and notice.
23(c)(2)(B) requires that the “best notice practicable
under the circumstances” must be provided to putative
class members. District courts have broad discretion and
flexibility in determining what constitutes the most
practical notice under the circumstances. 7B Wright, Miller,
& Kane, Federal Practice & Procedure Civil 3d §
1793 (3rd ed. 2009). Although an opt out form is not
required, it has been called “fair-minded and
beneficial” to include such a form with a class notice.
Bafus v. Aspen Realty, Inc., No. CV-04-121-S-BLW,
2007 WL 793633, at *4 (D. Idaho Mar. 14, 2007). Moreover,
although I recognize Plaintiff cites many cases where courts
declined to authorize the sending of such forms, I think the
burden placed upon the class members who wish to opt out in
this case is greater than in the typical case because the
class members potentially do not speak or write in English.
The Plaintiff’s proposed notice specifically states
that the class members should not contact the Clerk’s
Office by telephone, meaning they will have to opt out in
writing. Also, I think the risk of confusing the class
members is low because the opt out form clearly states in the
class members’ native language that opting out requires
signing and returning the form whereas not signing and
returning the form will result in the class members’
automatically becoming a member of the class action. ECF No.
35-2 at 1. With respect to Defendant’s request to
include pre-addressed and stamped envelops with the opt out
form, I agree that such provisions make sense, and approve
including such envelops so long as Defendant is responsible
for the added expense. Finally, item 6 of the notice should
be revised as follows: “If you do not wish to
be a part of this lawsuit, you have the right to be dropped
from the lawsuit. If you wish to be dropped, you must
complete and return the enclosed ‘Exclusion Request
Form’ no later than [120 days from the mailing
date]. If you ask to be dropped from the suit, you will
not be bound by the results of the lawsuit.”
also argues that Plaintiff has not conducted a reasonable
effort to identify the current addresses of the putative
class members and that an extended deadline of 120 days from
the mailing of the class notices should be set for the class
members to opt out given that the class members are migrant
farmworkers who spend long periods of time away from home.
Plaintiff does not object to the 120 day response deadline,
ECF No. 36 at 3, and I therefore approve that time frame.
With respect to the class members’ current addresses,
Plaintiff notes that Defendant fails to identify any viable
source of information containing the class members’
current addresses. Plaintiff obtained a list of the class
members’ addresses from the Wisconsin Department of
Workforce Development, which investigated Bontemps’
activities in 2011. Plaintiff also subpoenaed records from
Margalie Louis, who maintained the payroll records of
Kroprite Harvesting in 2012, 2013 and 2014. Defendant
complains that the information obtained in these ways is
dated and notes that some of the addresses have changed since
2011, but Defendant fails to identify any other source from
which the parties could otherwise discover the workers’
current addresses. Plaintiff also notes Defendant was
obligated to maintain and preserve records of the
workers’ permanent addresses under federal law. In
light of the foregoing, I conclude Plaintiff’s efforts
to ascertain the current addresses of the class members were
reasonable. To the extent Defendant does have updated
addresses for any of the class members, the parties are
directed to ensure that the mailing list used is as up to
date as reasonably possible based on the information
available to them at this time.
motion for approval and mailing of class notice is therefore
GRANTED subject to the above. The mailing should be completed