Reply Brief Filed for Simmons Appeal in Fourth Circuit

In Simmons v. United Mortgage and Loan Investment, LLC, we have filed this reply brief with the Fourth Circuit Court of Appeals in this wage and hour case. See here for a summary of the case. Ann Groninger, Burton Craige, and Narendra Ghosh are representing the plaintiffs, who are seeking to remedy the company's failure to pay overtime to themselves and other Junior Asset Managers. Here is a summary of our argument to the Court:

"From the beginning, the named plaintiffs in this case have sought to recover rightly-earned wages and overtime pay not just for themselves, but also for the other Junior Asset Managers who worked for defendants. Congress, recognizing the need for FLSA plaintiffs to be able to combine their individual claims for lost wages into a single action, created the collective action process for that very purpose. Under this process, named plaintiffs must promptly file their FLSA claims, be joined by opt-in plaintiffs, and then seek conditional certification of the collective action so that other potential opt-ins can be notified of the action. That is the only effective means to remedy defendants’ multiple violations of the FLSA.

"Following the established process, the named plaintiffs here filed their complaint with collective action allegations, amended their complaint to include proper defendants, and filed consent notices as opt-in plaintiffs joined the case. Because the district court might have rejected their motion for conditional certification of the collective action without the presence of opt-in plaintiffs, the named plaintiffs waited for several opt-in plaintiffs to join the case before filing their motion. While defendants characterize plaintiffs as inappropriately dilatory, plaintiffs were in fact diligently and prudently pursuing their collective action claims.
"Rather than contest plaintiffs’ collective action claims or motion for certification on the merits, defendants have sought to abort the statutory process. Relying on inapposite cases, mischaracterizing plaintiffs’ motives and actions, and ignoring the realities of collective action litigation, defendants ask the Court to validate their strategy of preempting certification of a FLSA action. The Court must reject defendants’ tactics and allow FLSA plaintiffs a reasonable opportunity to file a viable motion for collective action certification.

"With respect to plaintiffs’ NCWHA claims, the Federal Rules of Civil Procedure require only that plaintiffs make allegations that give rise to the reasonable inference that defendants have acted unlawfully, and do not require the exact language on which defendants insist. Here, the complaint alleges that plaintiff Pruitt was routinely required to work overtime hours during her entire employment, that she worked through February 2007, and that she did in fact work overtime hours without receiving overtime pay. The allegations are sufficient to set forth claims that fall under the NCWHA’s exception to FLSA preemption. Because the pleading stage is not a forum for hyper-technical parsing of language, the district court erred in dismissing plaintiffs’ NCWHA claims.

"Finally, in seeking to abort plaintiffs’ claims, defendants tendered an ambiguous and indefinite offer, and then failed to clarify some of the offer’s patent ambiguities before filing a motion to dismiss. While defendants now characterize their ambiguous offer as a “blank check,” plaintiffs could not reasonably have assumed that defendants’ offer was so generous at the time. The Court cannot give effect to a plainly inadequate offer based on defendants’ self-serving, post-hoc interpretation.

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