IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARISOL VELEZ, individually and )

on behalf of all similarly situated )

persons, ) Case No. 12 C 4857

)

Plaintiffs, ) Judge Ronald A. Guzman

) Magistrate Judge Michael T. Mason

v. )

)

LONGHORN STEAKS, INC. and )

DARDEN RESTAURANTS, INC. )

d/b/a LONGHORN STEAKHOUSE, )

)

Defendants. )

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION TO CONDITIONALLY 

CERTIFY A COLLECTIVE ACTION UNDER SECTION 216(b) 

OF THE FLSA AND TO ISSUE NOTICE TO CLASS MEMBERS

Plaintiff Marisol Velez is a former employee of LongHorn Steakhouse restaurant

located in Norridge, Illinois. As set forth herein, LongHorn violated the Fair Labor

Standards Act (“FLSA”) by requiring Velez and other servers to perform substantial

cleaning and other duties for the “tip credit” minimum wage, by requiring servers to

participate in a mandatory tip pool in which the restaurant skimmed a portion of their

earned tips, and by requiring servers to work off the clock, before and after their

regularly scheduled shifts. Plaintiffs bring this Motion pursuant to Section 216(b) of the

FLSA, and request the issuance of court-approved notice to an “opt-in” class defined as

follows:

all persons who have been employed by Defendants or their predecessors

as servers at anytime from June 2009 through and including the present

and until final resolution of the case, and who have not been paid the

statutory minimum wage for all regular hours worked, or overtime

Memorandum, 216(b) Collective Action, final to file.wpd

June 19, 2012/sls

Case: 1:12-cv-04857 Document #: 7 Filed: 06/19/12 Page 1 of 15 PageID #:30
 wages at the rate of one and one half times their regular rate for all the time worked

over 40 hours in individual work weeks (herein “FLSA Class”).

The certified declarations of Marisol Velez and Joseph Kilgallon, along with the records

attached as Exhibits hereto, establish that Velez and members of this proposed class

are “similarly situated,” and that the class should be conditionally certified. Notice

should be sent to apprise class members of their right to join this suit, and judicial

economy will be served if these common questions of fact and law are adjudicated

collectively.

SUMMARY OF PLAINTIFFS’ CLAIMS

 LongHorn is a restaurant chain with locations throughout the United States. 

Velez worked at its Norridge, Illinois store from approximately January 2006 until her

resignation in January 2011. See Declaration of Marisol Velez, ¶4-5. Declarant Joseph

Kilgallon worked as a server at its Norridge, Illinois location from approximately January

2006 until July 2007, and at the Des Plaines, Illinois location from approximately

December 2007 until April 2008. See Declaration of Joseph Kilgallon, ¶3. During

Plaintiff Velez’s employment, LongHorn violated the FLSA in three ways: (a) by

requiring servers and other tipped employees to perform non-tipped job functions for the

tip-credit minimum wage; (b) by requiring servers to participate in an illegal tip pool in

which the company retained a portion of servers’ tips; and, (c) by requiring servers to

work certain hours “off the clock,” i.e., without pay. These unlawful practices are

suitable for collective action, and are summarized as follows:

Memorandum, 216(b) Collective Action, final to file.wpd

June 19, 2012/sls -2-

Case: 1:12-cv-04857 Document #: 7 Filed: 06/19/12 Page 2 of 15 PageID #:31
LongHorn’s Requirement that Tipped Employees Perform Deep Cleaning and

other Similar Duties for Sub-Minimum Wage. As is the case with most restaurants,

servers at LongHorn received tips from customers for providing service, i.e., taking

orders, serving food and drinks, etc. Velez Decl., ¶7; Kilgallon Decl., ¶6. LongHorn

avails itself of the FLSA’s “tip credit” provisions, and pays its servers, including Velez,

less than the regular minimum wage. Velez Decl., ¶8; Kilgallon Decl., ¶7. 29 U.S.C. §

203(m). 

Under the FLSA, the tip credit “may be taken only for hours worked by the

employee in an occupation in which the employee qualifies as ‘tipped employee.’” 29

C.F.R. 531.59. The employer must maintain and preserve records that show, among

other things, which employees are paid in part by tips, and, for those employees, how

many hours in each workday are worked in occupations in which the employee receives

tips and how many are worked in any occupation in which the employee does not

receive tips. 29 C.F.R. § 516.28(a). LongHorn violated these provisions by requiring

servers to devote substantial time performing deep cleaning and other tasks which were

completely unrelated to providing service to customers, and by paying the tip credit

(sub-minimum) wage for these tasks.

Specifically, on average, for 1 to 2 hours after each server’s last table of

customers left, LongHorn required the server to deep clean the dining area, deep clean

the kitchen or “back of the house”, and roll silverware. Velez Decl., ¶12; Kilgallon Decl.,

¶10. This work included: deep cleaning booths, booth ledges, chair legs, and chair

seats; deep cleaning floor boards; removing gum from under tables and chairs; cleaning

Memorandum, 216(b) Collective Action, final to file.wpd

June 19, 2012/sls -3-

Case: 1:12-cv-04857 Document #: 7 Filed: 06/19/12 Page 3 of 15 PageID #:32
soda guns; soaking coffee and tea urns and cups, then placing them in dishwasher

machine; manually washing dishes and silverware; cleaning and dusting artifacts and

decor; deep cleaning kitchen walls; deep cleaning metal surfaces in the kitchen with

chemical cleaner; deep cleaning kitchen shelves with chemical cleaner; and cleaning

the soda machine and tubes. Velez Decl., ¶12; Kilgallon Decl., ¶10. This type of deepcleaning work is customarily performed by non-tipped employees (who are paid at a

higher hourly rate), such as janitors, maintenance workers, and dishwashers. Much of

the work was done in the kitchen, and in areas where customers are not permitted. 

Attached as Exhibit D is an example of a Memo which was distributed to servers at

LongHorn, and which detailed examples of the “weekly cleaning duties and end of day

duties” which servers were required to perform. Exhibit D; Velez Decl., ¶13; Kilgallon

Decl., ¶11. 

Additionally, LongHorn also required servers to roll large amounts of silverware

(100 rolls per server) before and after each serving shift. Velez Decl., ¶16; Kilgallon

Decl., ¶14. This requirement caused servers to spend additional time before or after the

end of their serving shifts performing non-tipped work. Velez Decl., ¶16; Kilgallon Decl.,

¶14. Deep cleaning and extensive sidework are not duties of a “tipped employee” since,

inter alia, this work was primarily performed at times when customers were not in the

restaurant.

In approximately 2009, Velez complained to a manager that LongHorn was

paying her the tip-credit minimum wage while performing these non-tipped job duties

after serving shifts. Velez Decl., ¶19. In response, the manager ignored her complaint

and walked away. Velez Decl., ¶19. Similarly, in approximately 2007, Declarant Joseph

Memorandum, 216(b) Collective Action, final to file.wpd

June 19, 2012/sls -4-

Case: 1:12-cv-04857 Document #: 7 Filed: 06/19/12 Page 4 of 15 PageID #:33
Kilgallon complained to a manager that LongHorn was paying the tip-credit minimum

wage for cleaning and sidework duties. Kilgallon Decl., ¶17. The manager did not take

Mr. Kilgallon’s complaint seriously, and walked away. Kilgallon Decl., ¶17.

Defendants’ practice of failing to pay servers the full minimum wage for time

spent performing non-tipped job duties subjects them to a forfeiture of the tip credit

allowance and is a common policy ideally suited for class treatment. Ervin v. OS Rest.

Svcs., 632 F.3d 971 (7th Cir. 2011) (class of tipped employees who claimed they were

required to perform tasks during which they could not earn tips); Curless v. Great

American Real Food Fast, No. 3:10-cv-00279, 2012 U.S. Dist. LEXIS 5709 (S.D. Ill.

1/28/12) (certifying Section 216(b) collective action based on allegations that tipped

employees were required to perform non-tipped work at sub-minimum wage).

LongHorn’s Illegal Tip Pool. The FLSA’s tip credit provisions permit the

“pooling of tips” but bar the employer from retaining “any of the employees’ tips for any

other purpose.” 29 U.S.C. § 203(m)(2); 29 C.F.R. 531.54; Ayers v. 127 Restaurant

Corp., 12 F. Supp. 2d 305 (S.D.N.Y. 1998) (tip pool invalid under FLSA where

management retained a portion of the tips). LongHorn violated this prohibition by

regularly retaining a portion of its “tip pool”.

LongHorn mandates that servers participate in a tip pooling arrangement

whereby a portion of their tips are distributed to hosts, food runners, bussers and

service bartenders. Exhibit A, Darden-LongHorn Employee Handbook, at p. 50. The tip

pool was administered as follows: After each shift, LongHorn required each server,

including Velez, to contribute a portion (2.3 percent) of his or her total sales to the tip

pool. Velez Decl., ¶21; Kilgallon Decl., ¶19. LongHorn’s computerized cash register

Memorandum, 216(b) Collective Action, final to file.wpd

June 19, 2012/sls -5-

Case: 1:12-cv-04857 Document #: 7 Filed: 06/19/12 Page 5 of 15 PageID #:34
system calculated the amount each server owed. Velez Decl., ¶20; Kilgallon Decl., ¶18. 

A manager then required servers to “cash out”. Velez Decl., ¶20; Kilgallon Decl., ¶18. 

After each shift, a server either owed the restaurant part of her cash earnings, or the

restaurant owed the server part of its credit card earnings, depending on the proportion

of cash (versus credit card) payments the server received. Velez Decl., ¶20; Kilgallon

Decl., ¶18. If the server owed the restaurant part of her cash earnings, Longhorn

“rounded up” the “tip out” amount, unless the server had exact change or specifically

asked for change back. Velez Decl., ¶22. For example, if the server owed $12.52,

management’s policy and practice was to take $13.00 from the server. Velez Decl., ¶22.

In the alternative, if LongHorn owed the server part of its credit card receipts, it

“rounded down,” unless the restaurant had exact change, the server could provide

change, or the server specifically asked for the entire amount. Velez Decl., ¶23. For

example, if the restaurant owed the server $12.52, management’s policy and practice

was to return only $12.00 to the server. Velez Decl., ¶23. This practice resulted in

Defendants’ unlawfully retaining portions of the tips received by Plaintiff and the class,

in violation of the FLSA. 29 U.S.C. § 203(m). Ervin v. OS Rest. Svcs., 632 F.3d 971 (7th

Cir. 2011) (collective action against employer by employees who alleged employer used

tip pool funds to make up for cash register shortages); Dominguez v. Don Pedro Rest.,

No. 2:06 cv 241, 2007 U.S. Dist. LEXIS 6659, 12 Wage & Hour Cas. 2d (BNA) 477

(N.D. Ind. 1/25/07) (certifying collective action on behalf of servers who alleged they

were required to participate in an illegal tip pool with other restaurant personnel).

Memorandum, 216(b) Collective Action, final to file.wpd

June 19, 2012/sls -6-

Case: 1:12-cv-04857 Document #: 7 Filed: 06/19/12 Page 6 of 15 PageID #:35
Off the Clock Work. The FLSA requires an employer to compensate employees

for all hours which it suffers or permits them to work. 29 U.S.C. § 203(g) ("'Employ'

includes to suffer or permit to work"). If the employer knows (or should have known)

that its employees are working, they must be paid. 29 C.F.R. 785.11 (“Work not

requested but suffered and permitted is work time. For example, an employee may

voluntarily continue to work at the end of the shift . . . The reason is immaterial. The

employer knows or has reason to believe that he is continuing to work and the time is

working time.”). It is the employer’s obligation to ensure that employees do not work off

the clock, and that they are fully compensated for all their work time. 29 C.F.R. §

785.13; Skelton v. AIU Online, 382 F.Supp.2d 1068 (N.D. Ill. 2005). LongHorn violated

these well-established principles by regularly requiring employees to work off the clock. 

LongHorn’s written policies required that employees must work 30 hours per

week in order to be eligible for its PPO medical plan. Exhibit B, “My Payroll Guide,” at p.

6. LongHorn also maintained a policy and practice of requiring servers to obtain a

manager’s approval before receiving paid overtime. Velez Decl., ¶25; Kilgallon Decl.,

¶20. These policies created an incentive for individual store managers to limit payroll

expenses, and to encourage off the clock work. 

All servers at LongHorn clocked into the same timeclock system, which was

called the “POS” system. Velez Decl., ¶9; Kilgallon Decl., ¶8. Employees used a swipe

card to clock in and out. Velez Decl., ¶9; Kilgallon Decl., ¶8. Time worked “off the clock”

was not paid. Velez Decl., ¶9; Kilgallon Decl., ¶8. Attached as Exhibit C are

examples of Ms. Velez’s time card and tip reports. Exhibit C; Velez Decl., ¶10. All

servers received printouts such as these. Velez Decl., ¶10. 

Memorandum, 216(b) Collective Action, final to file.wpd

June 19, 2012/sls -7-

Case: 1:12-cv-04857 Document #: 7 Filed: 06/19/12 Page 7 of 15 PageID #:36
LongHorn regularly required servers to clock out when they reached the 40-hour

threshold to avoid paying overtime, and required servers to stay and complete their

shifts off the clock. Velez Decl., ¶26; Kilgallon Decl., ¶21. LongHorn also required

servers to wait, off the clock, for the closing manager to complete the “final report,” and

to escort the manager to his or her car. Velez Decl., ¶27. LongHorn required servers to

wait, off-the-clock, at the end of the shift after their sidework was completed, and to

correct any problems noted by the manager. Velez Decl., ¶17; Kilgallon Decl., ¶15. 

LongHorn required each server roll a specific amount of silverware each day (100 rolls),

and servers frequently came in early before the start of their serving shifts to begin

rolling silverware. Velez Decl., ¶16; Kilgallon Decl., ¶14. Servers regularly did not clock

in for this work. Velez Decl., ¶16; Kilgallon Decl., ¶14. LongHorn required servers to

attend regular staff meetings, which often lasted more than one hour. Velez Decl., ¶28;

Kilgallon Decl., ¶22. Servers regularly did not clock in for this work. Velez Decl., ¶29;

Kilgallon Decl., ¶23.

All of the above-described “off-the-clock” practices were common to all servers at

LongHorn. These practices caused servers to not be paid for all their work time, and

are appropriate for collective adjudication. Unilock Chicago, Inc., 383 Ill. App. 3d 752;

892 N.E.2d 78; 322 Ill. Dec. 831 (1st Dist. 2008)(reversing denial of class certification

and certifying IMWL and IWPCA class of plant employees subjected to off-the-clock

work prior to the shift start and during unpaid lunch breaks); Ladegaard v. Hard Rock

Concrete Cutters, No. 00 C 5755, 2000 U.S. Dist. LEXIS 17832 (N.D. Ill. Dec. 1,

2000)(same); O'Brien v. Encotech Constr. Servs., 203 F.R.D. 346 (N.D.Ill. 2002)(same),

rev’d on recon. on other grounds, 183 F. Supp. 2d 1047 (N.D.Ill. 2002).

Memorandum, 216(b) Collective Action, final to file.wpd

June 19, 2012/sls -8-

Case: 1:12-cv-04857 Document #: 7 Filed: 06/19/12 Page 8 of 15 PageID #:37
ARGUMENT

I. Plaintiffs Have Made a Sufficient Evidentiary Showing for a

Collective Action to Be Conditionally Certified and Notice Sent

to Similarly Situated Current and Former Employees 

Plaintiffs seek to certify this action as a “collective action” under Section 216(b) of

the FLSA. Section 216(b) states as follows in relevant part:

An action to recover the liability prescribed in either of the preceding

sentences may be maintained against any employer (including a public

agency) in any Federal or State court of competent jurisdiction by any one

or more employees for and in behalf of himself or themselves and other

employees similarly situated.

29 U.S.C. §216(b). 

Collective actions under the FLSA differ from class actions authorized by Federal

Rule of Civil Procedure 23 – in FLSA cases the plaintiff is given notice and an

opportunity to opt in, rather than notice and an opportunity to opt out. Ervin et al. v. OS

Rest. Servs., 632 F.3d 971 (7th Cir. 2011); Woods v. N.Y. Life Ins. Co., 686 F.2d 578,

579-80 (7th Cir.1982); Jirak v. Abbott Laboratories, Inc., 566 F. Supp. 2d 845, 847 (N.D.

Ill. 2008). 

In Madden v. Corinthian Colleges, Inc., the Court outlined the procedure for

FLSA collective actions litigated in the Northern District of Illinois:

[C]ourts in this circuit generally have followed a two stage approach to

certification in FLSA collective actions . . . In the first stage, plaintiffs must

demonstrate that there are similarly situated employees who are potential

claimants . . . During this stage, courts employ a "lenient interpretation" of

the term "similarly situated" and require "nothing more than substantial

allegations that the putative class members were together the victims of a

single decision, policy, or plan." . . . If a plaintiff makes the requisite

showing, the court may allow notice of the case to be sent to the similarly

situated employees, who then can elect to opt in as plaintiffs, and also

allow discovery related to the merits of the plaintiffs' claims . . . In the

second stage, following the completion of the opt-in process and meritsMemorandum, 216(b) Collective Action, final to file.wpd

June 19, 2012/sls -9-

Case: 1:12-cv-04857 Document #: 7 Filed: 06/19/12 Page 9 of 15 PageID #:38
related discovery, the defendant may ask the court to reevaluate the

conditional certification to determine whether there is sufficient similarity

between the named and opt-in plaintiffs to allow the matter to proceed to

trial on a collective basis . . . At this stage, the court reviews several

factors including the employment settings of the individual plaintiffs,

defenses available to the defendant that may be individual to each

plaintiff, and fairness and procedural considerations.

Madden, No. 08 C 6623, 2009 U.S. Dist,. LEXIS 115331, at 5-7 (citations omitted); see

also, Jirak, 566 F. Supp. 2d at 847.

The Court in Vander Vennet v. AIU Online, No. 05 C 4889, 2005 U.S. Dist.

LEXIS 45344 (N.D. Ill. 12/22/05) reiterated this standard and noted that a “unified

policy” is not necessarily required as long as judicial economy is served by common

resolution of an otherwise identifiable factual or legal nexus:

There must be a demonstrated similarity among the situations of each

plaintiff beyond simply claiming that the FLSA has been violated; an

identifiable factual nexus that binds the plaintiffs together as victims of a

particular violation of the overtime laws generally must be present. . . A

unified policy, plan, or scheme, though, is not necessarily required to

satisfy the similarly situated requirement, especially if a collective action

would promote judicial economy because there is otherwise an identifiable

factual or legal nexus.

2005 U.S. Dist. LEXIS 45344 *27 (citations omitted). Both Courts in Madden and

Vander Vennet certified FLSA-collectives on behalf of admissions counselors who, as

here, alleged they were denied overtime pay in violation of the FLSA.

At the first stage, where discovery has only just begun, courts have found that

evidence similar to that described above (i.e., declaration(s) from the named plaintiff(s)

and other records) is sufficient to meet the “lenient” standard for notice and certification.

Smith v. Safety-Kleen Sys., No. 10 C 6584, 2011 U.S. Dist. LEXIS 40670 (N.D. Ill.

4/14/11) (class conditionally certified based on named plaintiff’s declaration and

company’s policies); Larsen v. Clearchoice Mobility, Inc., No. 11 C 1701, 2011 U.S.

Memorandum, 216(b) Collective Action, final to file.wpd

June 19, 2012/sls -10-

Case: 1:12-cv-04857 Document #: 7 Filed: 06/19/12 Page 10 of 15 PageID #:39
Dist. LEXIS 80899 (N.D. Ill. 7/25/11) (declarations of two lead plaintiffs attesting that

they, and eleven co-workers who held similarly positions, were subject to common

practices that violate the FLSA was sufficient at “notice” stage); Madden, 2009 U.S.

Dist. LEXIS 115331 at 11 (“[C]ourts have relied on affidavits from named plaintiffs to

conditionally certify an off-the-clock collective action, even when defendant disputes

such evidence with its own affidavits”); Anyere v. Wells Fargo, Co., No. 09 C 2769,

2010 U.S. Dist. LEXIS 35599 at 5-7 (N.D. Ill. 4/12/10)(Certifying collective action on the

basis of the five affidavits of the named representative plaintiffs); Botempo v. Metro

Networks, No. 01 C 8969, 2002 U.S. Dist. LEXIS 11810 at 6-7 (N.D. Ill. 5/2/02)(issuing

notice to all account executives in the United States based on Plaintiff’s testimony that

she was mis-classified, and on the fact that other account executives were

compensated the same way); Howard v. Securitas Secs. Svcs., USA, No. 08 C 2746,

2009 U.S. Dist. LEXIS 3913 at 7-8 (N.D.Ill. 1/20/09)(“At the notice stage, the burden of

proof is not heavy; nevertheless, the plaintiffs must demonstrate, through the pleadings 

and affidavits, a factual nexus between the plaintiff and the proposed class or a

common policy that affects all the collective members”). 

Minor factual differences among the class members are not sufficient to defeat

certification at the Notice stage, where as here, there is a common practice which

impacts the class. Garza v. Chicago Transit Authority, No. 00 C 0438, 2001 U.S. Dist.

LEXIS 6132 at 9 (N.D. Ill. 5/8/01) (“That the Plaintiffs and other potential plaintiffs may

have different jobs in the rail system, earn different amounts of money, and have

attended different amounts or types of training does not mean that they are not

operating under the same policies that allegedly entitle them to overtime pay”). 

Memorandum, 216(b) Collective Action, final to file.wpd

June 19, 2012/sls -11-

Case: 1:12-cv-04857 Document #: 7 Filed: 06/19/12 Page 11 of 15 PageID #:40
As set forth above, LongHorn violated the FLSA “tip credit” provisions by

requiring Velez and other servers to perform substantial cleaning and preparation duties

for the “tip credit” minimum wage and by requiring servers to participate in a mandatory

tip pool in which the restaurant retained a portion of their earned tips. In addition, the

company violated the FLSA by requiring plaintiffs to work off the clock, before and after

their regularly scheduled shifts. These practices were common throughout the class,

and thus raise common questions of fact or law which substantially predominate over

any issues particular to any one class member. Judicial economy, along with the

important policy aims underlying the FLSA1

, will be served best if the common factual

and legal questions arising these practices are adjudicated collectively in one

proceedings. 

All of these factors combined are sufficient to meet the “modest factual showing”

that Plaintiffs and are “similarly situated” to the class for the conditional certification and

notice stage. Indeed, courts in this district have conditionally certified collectives which

were larger and less homogenous than that proposed herein. Russell v. Illinois Bell

Telephone, 575 F. Supp. 2d 930, 937 (N.D. Ill. 2008)(conditionally certifying off-theclock collective action to employees in four separate call centers); Jirak, 566 F. Supp.

2d at 848 (granting certification of a class of pharmaceutical representatives who

1

The FLSA is remedial in nature, and "should be liberally construed so as to

effectuate its humanitarian purposes." Walling v. Consumers Co., 149 F.2d 626, 630

(7th Cir. 1945). In urging Congress to enact the FLSA, U.S. President Franklin Delano

Roosevelt eloquently articulated its aims, and his words which bear remembrance: “Our

nation so richly endowed with natural resources and with a capable and industrious

population should be able to devise ways and means of insuring to all our able-bodied

working men and women a fair day's pay for a fair day's work. A self-supporting and

self-respecting democracy can plead no justification for the existence of child labor, no

economic reason for chiseling workers' wages or stretching workers' hours.” H.R. Rep.

101-260, at 9 (1989), reprinted in 1989 U.S.C.C.A.N. 696, 696-97.

Memorandum, 216(b) Collective Action, final to file.wpd

June 19, 2012/sls -12-

Case: 1:12-cv-04857 Document #: 7 Filed: 06/19/12 Page 12 of 15 PageID #:41
worked in six different franchises); Hundt v. DirectSat United States LLC, No. 08 C

7238, 2010 U.S. Dist. LEXIS 51116 (N.D. Ill. 5/24/10)(finding that warehouse managers,

warehouse supervisors, general managers, and field managers are similarly situated

where they had similar job duties and were uniformly classified as “exempt”); Smallwood

v. Ill.Bell.Tel.Co., No. 09 C 44232, 2010 U.S. Dist. LEXIS 44232 *18 (N.D. Ill. 5/6/10)

(“Plaintiffs are authorized to send notices of a collective action pursuant to Section

216(b) to all persons who are or have been employed by the Illinois Bell Telephone

Company under the job description "Manager OSP Planning and Eng Design" for the

three-year period prior to April 27, 2010, and who started working at Illinois Bell prior to

May 16, 2009.”)

For all these reasons, the proposed collective action should be conditionally

certified, and Notice sent to potential class members.

II. Plaintiffs’ Proposed Notice Should Be Sent to the AboveDescribed Class As Soon As Practicable

Notice should be sent as soon as practicable because under most

circumstances, the damages period for “opt in” plaintiffs begins to run on the date they

opt into the lawsuit. 29 U.S.C. §256(b). Attached hereto as Exhibit E are sample

“Notice” and “Consent” forms. Both are patterned after the Notice issued in Vander

Vennet v. AIU Online, 2005 U.S. Dist. LEXIS 45344 at 36-41 (N.D. Ill. 12/22/05). 

Plaintiffs request this Court Order Defendants to produce a mailing list of the class

described above within seven days, so the attached notice may be sent to the abovedescribed class.

Memorandum, 216(b) Collective Action, final to file.wpd

June 19, 2012/sls -13-

Case: 1:12-cv-04857 Document #: 7 Filed: 06/19/12 Page 13 of 15 PageID #:42
CONCLUSION

WHEREFORE, for all the above reasons, plaintiff respectfully prays for an order:

(1) Approve mailing of Exhibit E - the Notice and Consent to Join forms;

(2) Order defendants to produce within seven days, a current and

computerized mailing list of all relevant employees, as set forth above;

and, 

(3) Order such other relief as the Court deems fair and just under the

circumstances. 

Respectfully submitted,

ROBIN POTTER & ASSOCIATES, P.C.

/s/ Robin Potter 

One of Plaintiffs’ Attorneys

Robin Potter, Esq. 

M. Nieves Bolanos, Esq.

Stacey L. Scanlon, Esq.

Robin Potter & Associates, P.C.

111 East Wacker Drive - Suite 2600

Chicago, Illinois 60601

(312) 861-1800

robin@potterlaw.org

nieves@potterlaw.org

stacey@potterlaw.org

Memorandum, 216(b) Collective Action, final to file.wpd

June 19, 2012/sls -14-

Case: 1:12-cv-04857 Document #: 7 Filed: 06/19/12 Page 14 of 15 PageID #:43
CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the above and

foregoing PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION TO

CONDITIONALLY CERTIFY A COLLECTIVE ACTION UNDER SECTION 216(b) OF THE

FLSA AND TO ISSUE NOTICE TO CLASS MEMBERS was served upon all parties by

way of process server, transmitted to process server this 20th day of June, 2012 for service

upon the below address:

LongHorn Steaks, Inc.

c/o Darden Restaurants, Inc.

Corporate Creations Network

1443 W. Belmont Ave., Suite C

Chicago, IL 60657 

 /s/ Robin Potter 

 Robin Potter

Memorandum, 216(b) Collective Action, final to file.wpd

June 19, 2012/bl

Case: 1:12-cv-04857 Document #: 7 Filed: 06/19/12 Page 15 of 15 PageID #:44