      In the United States Court of Federal Claims
                                     No. 19-844C
                              (Filed February 24, 2020)
                              NOT FOR PUBLICATION

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                                  *
PLAINTIFF NO. 1, et al.,          *
                                  *
                 Plaintiffs,      *
                                  *
      v.                          *
                                  *
THE UNITED STATES,                *
                                  *
                 Defendant.       *
                                  *
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                                       ORDER

       Plaintiffs have filed a mostly-unopposed motion to notify potential class
members regarding this action brought under the Fair Labor Standards Act (FLSA),
29 U.S.C. § 201, et seq. See Pls.’ Mot. for Notice (Pls.’ Mot.), ECF No. 24. After
review, the Court finds that the unopposed portions of the proposed notice comply
with the Supreme Court’s requirement that such notices maintain the neutrality of
the tribunal with respect to the merits of the claim. See Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 174 (1989). Among these unopposed aspects of the proposed
notice is a description of the lawsuit which contains the number of plaintiffs who
have already joined the suit at the time a first notice is sent. Def.’s Resp. to Pls.’
Mot. (Def.’s Resp.), ECF No. 26, at 1.

       The parties agree that a second notice may be sent to non-responsive
potential plaintiffs, at plaintiffs’ expense, one month prior to the deadline for receipt
of consent forms. Pls.’ Mot. at 3. The sole dispute concerns whether the number of
plaintiffs who have already joined the lawsuit should be updated to reflect any
changes since the sending of the first notice. Plaintiffs contend this is accurate
information which may be important to potential plaintiffs in making “informed
decisions about whether to participate.” Id. at 2–3 (quoting Hoffman-La Roche, 493
U.S. at 170).

       Defendant opposes this revision of the second notice, stating that our court
has “typically approved a second notice, but required that it be identical to the
original notice.” Def.’s Resp. at 2 (citing Doe No. 1 v. United States, 143 Fed. Cl. 113
117 (2019); Plaintiff No. 1 v. United States, 139 Fed. Cl. 440, 443 (2018)). The two
cases cited, however, do not reflect any requirement imposed by the court, but
rather the adoption of a notice process proposed by the parties in which the second
notice happened to be identical to the first. Indeed, defendant concedes that in one
of these cases, it later agreed to allow the second notice to be revised to include the
number of plaintiffs who had joined. Id. at 2 n.1 (discussing Plaintiff No. 1 v.
United States, No. 18-393C); see also Pl.’s Mot. at 2. The other case, however, is
among the two instances cited by the government of unsuccessful motions by
plaintiffs to change the agreed-upon language in a second notice to recite the exact
number of participating plaintiffs rather than merely stating there were “several.”
See Ex. B to Def.’s Resp. (Doe No. 1 v. United States, No. 19-152C).

       The cases cited by the government concern whether approved notice language
should be subsequently changed, and not what that language should be in the first
place. Defendant has provided no support for its arguments that language must be
identical in both notices, or that a heightened standard such as a “compelling
reason” must be met for the second notice to differ from the first. The Court will
accordingly review the contested portion of the proposed notice under the factors
identified by the Supreme Court, and determine whether the content “is timely,
accurate, and informative,” and whether it gives “the appearance of judicial
endorsement of the merits of the action.” Hoffman-La Roche, 493 U.S. at 172, 174.

       Without question, the exact number of individuals who have chosen to be
parties to a lawsuit as of a given date is “timely” and “accurate.” The government
disputes whether this number is informative, arguing that “[h]ow many plaintiffs
have joined this action is irrelevant to the essence of the lawsuit and is not a
predicate upon which to allow a revised second notice.” Def.’s Resp. at 3. But if the
number of plaintiffs in the case has no place in a notice to potential plaintiffs, why
did the government agree to include this number in the first notice? And since an
exact number will be in the first notice, a second notice with that same number
would be inaccurate unless the number had not changed in the interim. The
government suggests its own revision to the second notice and would replace the
number with “several” or “multiple.” Id. But such a general term would certainly
be less informative than an exact number.

       Taking the opposite tack, the government also seemingly argues that use of
an exact number would be too informative, because an increase in the number from
the first to the second notice is designed “to motivate even more putative plaintiffs
to join the lawsuit,” and thus “inappropriately seeks to encourage plaintiffs to join
the lawsuit.” Id. There are two problems with this argument. First, the number of
plaintiffs who have joined in this lawsuit is simply a fact, not a qualitative
characterization of the merits of the case. In that regard, the number of plaintiffs
participating says far less about the expectations of the parties than does the fact
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that a tentative settlement has been negotiated and awaits approval by the
Attorney General---a matter which the government has agreed should be contained
in the notice. See Pls.’ Mot., Ex. A at 2.

       The second problem with defendant’s position is that it assumes that a
change in the number of plaintiffs will necessarily make participation more
attractive to potential plaintiffs. But it may well be that the reason the vast
majority of potential plaintiffs do not respond to the initial notice is because the
notice was misplaced or overlooked, and thus they will not have it in hand to
compare to the second notice. Moreover, it is possible that some participating
plaintiffs may change their mind and seek to withdraw from the lawsuit. Or the
number may increase but modestly in the two months between the two notices. To
date, 12 plaintiffs have filed consent forms to be parties to this case, pursuant to 29
U.S.C. § 216(b). See ECF Nos. 9–10, 15–18, 22–23, 42–43. Even if that number
were to increase significantly before the second notice is sent, a potential plaintiff
would not be in a position to assess the relative popularity of the lawsuit without
knowledge of the total number of potential plaintiffs---which is something the
plaintiffs currently do not even possess. Compare Pls.’ Unopp. Mot. for Conditional
Cert., ECF No. 19 at 1 (estimating the number of potential class members to be
approximately 1,000) with Pls.’ Reply, ECF No. 28 at 2 n.1 (noting that the
government apparently believes the size of the potential class is between 200 and
300).

      In light of the foregoing, the Court concludes that the inclusion of accurate
numbers for participating plaintiffs in both notices would be informative for the
potential plaintiffs but would not constitute improper solicitation of claims. See
Hoffman-La Roche, 493 U.S. at 174. Accordingly, the Court approves plaintiffs’
proposed notice and GRANTS their motion for notice to potential plaintiffs.

IT IS SO ORDERED.


                                        s/ Victor J. Wolski
                                        VICTOR J. WOLSKI
                                        Senior Judge




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