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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:22-CV-23074-BLOOM/OTAZO-REYES

OCTAVIO COLLADO,

Plaintiff,

vs.

450 NORTH RIVER DRIVE, LLC,

D/B/A KIKI ON THE RIVER, 

RJ RIVER, LLC AND 

ROMAN JONES,

Defendants.

______________________________/

REPLY SUPPORTING

PLAINTIFF’S RENEWED MOTION

FOR CONDITIONAL CERTIFICATION 

OF A COLLECTIVE ACTION

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I. INTRODUCTION

Certifying Count I of the Second Amended Complaint for collective treatment furthers 

“the purposes of § 216(b) actions under the FLSA: (1) reducing the burden on plaintiffs through 

the pooling of resources, and (2) efficiently resolving common issues of law and fact that arise from 

the same illegal conduct.” Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1264 (11th Cir. 2008)

(citing Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989). 

Defendants argue that Count I of the Second Amended Complaint is not viable even 

though its merits are irrelevant at the conditional certification stage. See e.g., Wright v. Waste Pro USA, 

Inc., 2020 WL 8641581, at *3 (S.D. Fla. Dec. 22, 2020) (collecting cases) (“Based on the foregoing, 

the Court declines to evaluate the merits of the case, or to make inquiries into factual disputes or 

the credibility of evidence in its analysis of whether Plaintiff and others are similarly situated.”)

Defendants contest that sufficient interest in the case exists, despite the demonstrated interest by 

numerous similarly situated former employees who joined and continue to join this case. [ECF 

Nos. 4, 5, 7, 15, 22, 25, 38, 41, 83.] Defendants oppose the expedited production of information, 

the means of notice designed to properly inform the greatest number of impacted current and 

former employees of their rights, the form of the notice, and the consent form proposed without 

cogent reasons for their opposition and without factual support. The Defendants’ opposition to 

certification and to the proposed notice are obstructionist tactics that do not preclude granting the 

relief Mr. Collado requests.

II. ARGUMENT

The issues involved in Count I of the Second Amended Complaint are appropriate for 

collective action treatment. Defendants paid and treated their captains, servers, and bussers 

according to standardized policies. In Count I, Mr. Collado seeks the tips that Defendants either 

improperly retained or distributed in violation of 29 U.S.C. §203(m)(2)(B). The demonstrated 

interest in this case by others similarly situated to Mr. Collado and the common pay practice at 

issue satisfy the “lenient burden of showing there are other employees similarly situated with regard 

to their job requirements and pay provisions at this conditional certification stage”. Flete v. All Am. 

Facility Maint. Inc., 2020 WL 5534270, at *3 (S.D. Fla. July 13, 2020). 

A. Defendants’ Misplaced Arguments For Dismissal Are Properly Ignored.

Defendants improperly contest the viability of Mr. Collado’s claim that the improper 

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retention or distribution of tips cannot form the basis for a claim under the FLSA, despite the 

specific authority provided by 29 U.S.C. §§203(m)(2)(B) and 216(b). Defendants’ argument

contesting the merits of Counts I is not properly considered at this stage in the proceeding. See

Herrera v. Mattress Firm, Inc., 2017 WL 4270619, at *6 (S.D. Fla. Sept. 26, 2017) (collecting cases). 

The FLSA, at 29 U.S.C. §§203(m)(2)(B) and 216(b), obliviates the Defendants’ argument for 

dismissal if it were to be considered. 

B. Mr. Collado Is Similarly Situated To The Captains, Servers, And Bussers. 

“The only question at this point is whether Plaintiffs have shown a ‘reasonable basis’ for 

their claim that similarly situated employees are interested in opting into this lawsuit.” Vandergriff v. 

Olympia Mgmt. Inc., 2019 WL 2420060, at *3 (N.D. Ala. June 10, 2019) [emphasis added] (citing 

Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir. 1996)). The evidence confirms Mr. 

Collado is similarly situated, was subjected to a commonly applicable tip practice, and that others 

desire to join. “Courts in this district have held that the existence of just one other co-worker who 

desires to join in is sufficient to “rais[e] the Plaintiff’s contention beyond one of pure speculation.” 

Bennett v. Hayes Robertson Group, Inc., 880 F. Supp. 2d 1270, 1283 (S.D. Fla. 2012) (quoting Guerra v. 

Big Johnson Concrete Pumping, Inc., 2006 WL 2290512, at *4 (S.D.Fla. May 17, 2006)). Mr. Collado 

demonstrated sufficient interest in this case through the Declarations from two additional former 

employees and the Notices of Consent to Join filed by 9 other former employees. [ECF Nos. 4, 7, 

15, 22, 25, 38, 83, 84, 85.] See Harapeti v. CBS Television Stations, Inc., 2020 WL 8083695 (S.D. Fla. 

Dec. 21, 2020) (granting conditional certification when 3 employees opted into the lawsuit).

Defendants’ “sufficiency of interest” argument focuses not on how many people are 

interested but on whether those who joined this case are “similarly situated.” [ECF No. 82 at 6.]

Defendants mistakenly rely on Compere v. Nusret Miami, LLC, 391 F. Supp. 3d 1197 (S.D. Fla. 2019), 

an FLSA minimum wage case against a restaurant in which this Court certified a collective action 

comprised of tipped, front-of-the-house employees with different job titles paid according to a 

common practice. The Compere case does not support the Defendants’ argument. In granting 

conditional certification in Compere, the Court cited McClean v. On the Half Shell, Inc., 2018 WL 

8578016, at *3 (M.D. Fla. Oct. 24, 2018), as a case conditionally certifying a collective inclusive of 

bartenders and servers to support its focus on the pay policies at issue and not the job titles given 

to the employees. (“More importantly, both classes were allegedly subject to the same unlawful 

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policies, viz. the deletion of hours and performance of work without compensation.”) Thus, the 

cases Defendants rely on confirm that titles are immaterial to the Court’s decision.

Proving “similarly situated” requires Mr. Collado to “demonstrate that he and potential 

plaintiffs together were victims of a common policy or plan that violated the law.” Chalker v. 

Burlington Coat Factory of Florida, LLC, 2013 WL 5954783, at *1 (M.D. Fla. Nov. 7, 2013) (quoting 

Longcrier v. HL–A Co., Inc., 595 F.Supp.2d 1218, 1236 (S.D. Ala. 2008)). The “similarly situated” 

analysis focuses on the policies and practice(s) at issue. “Plaintiffs at the conditional-certification 

stage are therefore not required to demonstrate a unified, explicit scheme of FLSA violations, but 

rather must show only that they are similarly situated with respect to general workplace policies 

and practices.” Alequin v. Darden Restaurants, Inc., 2013 WL 3939373, at *6 (S.D. Fla. July 12, 2013).

The discovery responses from Defendants confirm that Mr. Collado, the Opt-In Plaintiffs, 

and the putative Collective were subjected to common pay practices. (Exhibit “A”.)

1 Defendant,

450 North River Drive, LLC, identified the standardized practices that Kiki on the River used to 

collect and distribute tips and overtips to captains, servers, and bussers (including bussers and food 

runners) in its Answers to Interrogatories (Exhibit “A”). Its Answer to Interrogatory No. 5 describes 

the common pay practices used and confirms that no tipped employee was treated differently than 

Mr. Collado, regardless of the job title of the tipped employee, in explaining how tips were 

distributed. Id. Compare Chalker v. Burlington Coat Factory of Fl, LLC, 2013 WL 594784 at *1 (M.D. Fla. 

Nov. 7, 2013) (explaining employee may prove that he is similarly situated for conditional 

certification if he shows that he is the victim of a corporately derived (and not isolated) policy or

plan that violated the law along with the putative class). Then, in response to Interrogatory No. 

19, Defendant 450 North River Drive, LLC concedes that discrepancies exist in its tip distribution

– meaning that it acknowledges owing tips to Mr. Collado and those similarly situated. (Exhibit 

“A”.)

Defendants argue that Mr. Collado is not similarly situated to the other captains, servers, 

and bussers by relying on one distinguishable case: Alvarez v. Uno Rest. Associates, Inc., 2018 WL 

2305561 (S.D. Fla. May 21, 2018). The plaintiff in Alvarez relied on his affidavit and the affidavit 

of one opt-in plaintiff, but neither described their job duties or the pay practices at issue:

1 Mr. Collado does not concede that the Interrogatory Answers and Objections at Exhibit “A” are 

sufficient, and the parties are conferring about those issues as required by Local Rule 7.1.

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Importantly, Alvarez’s complaint and his supporting affidavits are devoid of any detail 

explaining how bussers and servers are similarly situated and say nothing about the 

respective job duties associated with either position. Alvarez also fails to provide any 

evidence that a server would want to join the class since no server has filed an affidavit or 

consent to join the class. It is not enough that Alvarez and the purported class members 

were tipped employees who served restaurant patrons. Even if the Court were to find that 

the complaint's allegations and affidavits provide enough information to support that the 

conclusion that Alvarez and the other tipped employees were subject to the same payment 

provisions and alleged wrongs, Alvarez has not provided the Court with enough 

information about how the proposed class members are similarly situated.

Alvarez, 2018 WL 2305561, at *3. This case is sufficiently distinct to render Alvarez inapposite

considering the number of opt-in Plaintiffs herein, the number and details provided in the 

Declarations, the number of Declarations, and the evidence establishing that Defendants’ pay 

practices were uniformly applicable to their tipped employees.

Defendants also oppose conditional certification with the supposition: that, “it is possible 

that they [Messrs. Collado and Guerra] were only a server or captain within the statute of 

limitations.” [ECF No. 82 at 8.] Defendants offer no evidence to raise their argument beyond mere 

speculation despite possessing the documents to identify the specific dates when each person 

worked, and the position worked by each. Furthermore, the common pay practices identified in 

the Answers to Interrogatories make any distinction immaterial. (Exhibit “A”.)

Mr. Collado satisfies the “fairly lenient standard” to support conditional certification. Hipp 

v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001).

C. Defendants Fail To Support Their Requested Gag Order.

Defendants seek a gag order to prevent any social media posts about this case and levy an 

unwarranted ad hominem attack on the undersigned by claiming that a TikTok post is “misleading” 

and contains “misinformation.”2 [ECF No. 82 at 16.] Defendants attack the undersigned by 

stating, “Plaintiff’s counsel takes to social media and conveys that Kiki and its ‘corporate owners’

violated the law.” Id. The Defendants’ arguments on this topic are either unsupported or wrong.

First, Defendants fail to cite a law, rule, or case supporting any claim that the social media 

2 Defendants also erroneously claim that “Plaintiff has circulated this video among current and 

former Kiki employees despite the fact the Court has not approved conditional certification or the content 

or mode of communication for the notice.” [ECF No. 82 at 16.] Defendants’ argument is unsupported in 

fact.

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post was legally, procedurally, or ethically improper. Defendants would have directed the Court to 

some supportive authority if there were any impropriety, but they do not. 

The Defendants’ description of the TikTok video also is inaccurate. The TikTok video does 

(a) not identify anything other than the fictitious name “Kiki on the River,” (b) suggest that the 

Court made any decisions on liability, (c) mention joining the lawsuit, (d) mention conditional 

certification, or (e) to contact the undersigned.

(https://www.tiktok.com/@fairlawfirm/video/7200398055902924074.) The video accurately 

recounts that Mr. Collado filed the instant lawsuit in this United States District (federal) Court, 

including against two corporate Defendants whom he alleges are his employers, and whom he 

alleges either unlawfully retained or improperly distributed tips which he seeks to recover for 

himself and for the others similarly situated. Id.; compare ECF Nos. 1, 59. The Defendants’ claim 

that the video is “misleading” is a ploy, as the video explains (verbally and in the verbatim captions) 

that the case “is in the discovery phase” and that the parties are “exchanging documents back and 

forth so we can determine whether that money was distributed improperly and if so where that 

money went who it went to and how much money we’re talking about.” 

(https://www.tiktok.com/@fairlawfirm/video/7200398055902924074.) The suggestion that any 

inaccuracy exists is fantastical. 

The only seemingly analogous situation addressed by courts occurred when counsel 

advertised for FLSA claims before conditional certification. In those situations, courts found no 

proscription against advertising for FLSA claims. Courts faced with situations involving advertising

for FLSA claims held that general advertisements were permitted if done according to the 

applicable ethical rules but prohibited counsel from initiating direct contact with members of the 

collective beyond the notice authorized by the Court. See e.g., Campo v. Granite Services Int’l, Inc., 584 

F. Supp. 3d 1337, 1349 (N.D. Ga. 2022) (approving notice in collective actin despite Facebook 

advertisement); and Gardner v. G.D. Barri & Associates Inc., 2021 WL 2474032, at *4 (D. Ariz. June 

17, 2021) (“Counsel may continue to make general advertisements and may respond to inquiries 

from collective members.”) These cases rely on Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 174 

(1989), wherein the Supreme Court instructed that “Court intervention in the notice process for 

case management purposes is distinguishable in form and function from the solicitation of claims.” 

The TikTok video was not an advertisement. It was part of a series of TikTok videos by 

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the undersigned law firm – which gain anywhere from a few hundred views to over 1.2 million 

views – about employment law topics for employers and employees. 

(https://www.tiktok.com/@fairlawfirm.) They provide general information on various topics.

Defendants request that the Court prohibit members of the Collective from publishing the 

notice authorized by the Court on any social media platforms but again fail to support their request 

for this type of gag order. Social media is a recognized method for disseminating general 

information and providing notice of a collective action. Qiang Lu v. Purple Sushi Inc., 447 F.Supp.3d 

89, 93 (S.D.N.Y 2020). If members of the collective end up publishing the approved notice on 

social media, and not to anyone in particular, doing so arguably only furthers the purpose of the 

FLSA. Of course, direct dissemination by one member of the collective to another is not okay.

D. Mr. Collado’s Proposed Notice Is Accurate, Consistent With The FLSA’s

Broad Remedial Purpose, And Should Be Approved Without Modification.

Defendants’ notice arguments are antithetical to the purpose of the FLSA’s collective action 

mechanism. Although Defendants have all the time and pay records for each putative class 

member, they inexplicably oppose expedited production of the time, pay, and tip records for the 

three years before the filing of the initial Complaint. They propose an additional delay while the 

parties confer on the language of the Notice if any revisions are required. A simple cure to address 

Defendants’ delay tactics is to toll the limitations period as of the date of the Order conditionally 

certifying the collective action. Tolling is particularly appropriate here to prevent the Opt-In 

Plaintiffs from losing the ability to claim the tips at issue, considering that the purpose of the 

statute(s) of limitations would not be defeated. 

Limitations periods are intended to put defendants on notice of adverse claims and to 

prevent plaintiffs from sleeping on their rights, see Delaware State College v. Ricks, 449 U.S. 

250, 256-257, 101 S.Ct. 498, 503, 66 L.Ed.2d 431 (1980); American Pipe & Constr. Co. v. 

Utah, 414 U.S. 538, 561, 94 S.Ct. 756, 770 (1974), (concurring opinion); Burnett v. New York 

Central R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965), but these 

ends are met when a class action is commenced.

Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 352 (1983). The tolling period should relate back 

to the date that Mr. Collado filed his Motion for Conditional Certification. Brown v. 1888 Mills, 

LLC, 339 F.R.D. 692, 699 (N.D. Ga. 2021) (“To begin, the Court will equitably toll the statute of 

limitations as of the date Brown filed her motion for conditional certification (August 10, 2021), as 

the time period for the Court to issue a ruling should not be held against her and the other 

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Plaintiffs.”); see also Abelson v. Sarasota Cnty., Florida, 2020 WL 3971830, at *3 (M.D. Fla. July 14, 

2020) (“The Court will toll the FLSA statute of limitations during this 14-day period to avoid 

prejudice to the rights of the putative collective action members.”)

1. The look-back period should be three years (and three weeks).

The parties conferred and agreed that the limitations period is properly tolled for 21 days 

from whatever date the Court establishes. The parties initially agreed to toll the limitations period 

for 14 days commensurate with the 14-day extension Defendants received to respond to the initial 

Motion for Conditional Certification. (Exhibit “B”.) The tolling agreement was not to run from 

the mailing of notices but to add 14 days to whatever date the Court established. Id., but see ECF 

No. 82 at 10, fn. 1. Defendants also agreed to toll the limitations period for another 7 days based 

on their request for a commensurate extension to respond to the Renewed Motion for Conditional 

Certification. (Exhibit “C”.) The parties agree that 21 days must be added to the limitations period.

2. Notice by text message is an appropriate means of notification.

Effective notice of a collective action lawsuit in 2023 should include text messaging. Many 

courts allow text message notice in FLSA cases. See Grajeda v. Verified Moving Pros, LLC, 2022 WL 

17987191, at *2 (S.D. Fla. Sept. 22, 2022) (approving text message notice); Thrower v. 

Universalpegasus, Int’l Inc., 2020 WL 5258521at *11-12 (S.D. Texas, Sept. 3, 2020) (Text message 

notice approved in FLSA case because it would increase the likelihood that employees receive

notice); Vasto v. Credico United States LLC, 2016 WL 2658172 (S.D.N.Y. 2016) (Text message notice 

approved in FLSA case); Eley v. Stadium Group, LLC, 2015 WL 5611331 at *3 (D.D.C. 2015) (Text 

message notice approved in FLSA case); Irvine v. Destination Wild Dunes Mgmt., 132 F.Supp.3d 707, 

711 (D.S.C. 2015) (Text message notice approved in FLSA case found to be “eminently 

reasonable”). The prevalence of spam email filters and the amount of spam email received makes 

email notice less effective than in prior years, while reliance on text messaging is more commonly 

used for commercial and personal communication. Roldan v. Bland Landscaping Co., Inc., 341 F.R.D. 

23, 35 (W.D.N.C. 2022). Most people now rely on their cell phones as their primary means of 

communication, making receiving a text message the best method to ensure receipt of notice of the 

pendency of this collective action. “Considering the changes in technology and the way we 

communicate, allowing plaintiffs to send notice via text message will increase the likelihood of 

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potential class members receiving notice. This is the aim of the FLSA.” Pryke v. First Solar, Inc., 2021 

WL 5027565, at *3 (N.D. Ohio Oct. 29, 2021).

Mr. Collado agrees to limit the text message notification to include: (1) a brief sentence 

indicating that the receiver was identified as a potentially tipped employee who worked for 

Defendants during the previous three years who may be affected by a pending lawsuit and (2) a 

hyperlink to the Court approved notice and consent to join form. See e.g., Grajeda, 2022 WL 

17987191, at *2.

3. A ninety-day notice period is appropriate.

Affording putative members of the collective ninety days to join these proceedings is 

appropriate due to the transitory nature of the service industry and the national trend. “[W]hile 

notice periods may vary, numerous courts around the country have authorized ninety-day opt-in 

periods for collective actions.” McCoy v. Transdev Services, Inc., 2020 WL 2319117, at *7 (D. Md. 

May 11, 2020) (citing Wass v. NPC Int’l, Inc., 2011 WL 1118774, at *10 (D. Kan. Mar. 28, 2011) 

(denying the defendant's request to shorten the opt-in period below ninety days); Calderon v. Geico 

Gen. Ins. Co., 2011 WL 98197, at *2, 8–9 (D. Md. Jan. 12, 2011) (authorizing a ninety-day notice 

period); Pereira v. Foot Locker, Inc., 261 F.R.D. 60, 68–69 (E.D. Pa. 2009) (finding a ninety-day optin period to be reasonable).) In this Circuit, Courts routinely approve ninety-day notice periods. 

See e.g Hubbard v. Jerry’s Seamless Guttering, Inc., 2020 WL 6038110, at *4 (S.D. Fla. Oct. 6, 2020); 

Isaacs v. One Touch Direct, LLC, 2015 WL 248658, at *3 (M.D. Fla. Jan. 20, 2015) (“courts, including 

this Court, routinely grant ninety-day opt-in periods.”); Love v. Phillips Oil, Inc., 2008 WL 5157677, 

at *3 (N.D. Fla. Dec. 9, 2008) Park v. B&M Mgmt. Co., LLC, 2022 WL 1516308, at *1 (M.D. Ala. 

May 13, 2022)

4. Expedited production is appropriate.

Because the statute of limitations begins to run for FLSA claimants until they affirmatively 

opt into this lawsuit, absent tolling, expedited production of the requested information is imperative 

to protect the rights of the collective. See Laos v. Grand Prize Motors, Inc., 2012 WL 718713 at *2 (S.D. 

Fla. Mar. 6, 2012) (requiring defendants to produce to the plaintiff, within fifteen (15) days of 

conditional certification order, a complete list of all putative class members, including their last 

known home address, telephone number, e-mail addresses, and the last four digits of the social 

security number, taxpayer ID number, and financial account numbers, of employees).

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5. Posting at the Defendants’ restaurant is necessary for effective notice.

Defendants oppose informing current employees of their legal rights related to this lawsuit 

by opposing posting a notice at their restaurant. Defendants argue that this posting would be 

disruptive without addressing the benefits of posting a notice at the workplace for current 

employees. Compare Denney v. Lester’s, LLC, 2012 WL 3854466, at *1 (E.D. Mo. Sept. 5, 2012)

(requiring notice be posted for the entire notice period “in the break areas and/or kitchens of their 

restaurants and to disseminate such notice with paychecks and/or pay stubs”). Hubbard, 2020 WL 

6038110, at *4 (approving 90-day notice period for the affected employees who worked for 

Defendant within the three years before the action being filed, requiring an Excel spreadsheet 

within 14 days, and requiring Defendant “to post the Notice and Consent in a conspicuous location 

in the same areas where they post government-required notices”). Although Defendants claim their 

business would be adversely affected by posting notice, this Court was not persuaded previously 

when considering the same argument. Didoni v. Columbus Rest., LLC, 327 F.R.D. 475, 482 (S.D. Fla. 

2018) (“Defendants’ business will not be “crippled” by the posting of the Notice in an area where 

no customers can see it, such as the employee break room or in the back of the restaurant. The 

Court finds Plaintiffs’ request to post the Notice at Defendants' restaurant reasonable.”) Didoni, 327 

F.R.D. 475 at 481–82.

6. The proposed notice should be approved as drafted.

The proposed Notice provides that the Court has not adjudicated the merits and that 

participation in the lawsuit does not guarantee “that there will be any money.” [ECF No. 65-1 at 

1.] Defendants request that the Court include their contact information on the notice without any 

explanation. Rosell v. VMSB, LLC, 2020 WL 7767879, at *4 (S.D. Fla. July 7, 2020) (“including 

defense counsel directly in the posted notice seems unnecessary absent a specific showing”). 

“[I]ncluding defense counsel’s contact information without additional instruction—like an explicit 

warning not to contact defense counsel if an individual decides to join the lawsuit as a plaintiff—

would create confusion and render the notice less effective.” Valdez v. MichPat & Fam, LLC, 2022 

WL 950450, at *15 (E.D.N.Y. Mar. 30, 2022); see also Jibowu v. Target Corp., 2020 WL 7385695, at 

*5 (E.D.N.Y. Dec. 16, 2020). Considering the misinformation in Defendants’ filings with this Court 

to date, the risk of including the defense counsel’s information – especially without an admonition 

– is unwarranted and would be inappropriate. 

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Defendants ask to include a statement that joining could subject someone to responsibility 

for attorneys’ fees and costs, although “including a warning to potential class members that they 

may be burdened with attorneys’ fees and costs would potentially chill participation in this action.” 

Belloso v. Asplundh Tree Expert, Co., 2018 WL 4760671, at *3 (M.D. Fla. Aug. 24, 2018). While a 

prevailing FLSA Defendant may recover its costs upon prevailing, there is no right to recover 

attorneys’ fees absent exceptional circumstances. Defendants acknowledge their having violated 

§203(m)(2)(B) in their Answer to Interrogatories Nos. 19, eliminating the possibility of their 

recovery of attorneys’ fees in this case and making any reference to the Defendants’ recovery of 

attorneys’ fees unnecessary. Moxley v. OS Rest. Services, LLC, 2022 WL 3268289, at *2 (M.D. Fla. 

July 5, 2022) (requiring references to the “additional language regarding potential litigation costs” 

but not attorneys’ fees and requiring “that the notice should inform potential members of all 

obligations, including the possibility of responding to written requests, sitting for a deposition, or 

appearing at trial”) [emphasis in original].

Defendant fails to show, or even allude to, that Plaintiffs brought this suit in bad faith. And 

as a showing of bad faith is necessary to award attorney's fees in FLSA cases, the chance 

that such a finding will be made in this case is not material enough to warrant referencing 

fees in the notice.

Rosell v. VMSB, LLC, 2020 WL 7767879, at *5 (S.D. Fla. July 7, 2020). If any statement is to be 

included, it should parallel that previously approved by this Court: “Class members may be liable 

for incidental defense costs if they fail to obtain a favorable judgment. However, unless the court 

concludes that the litigation was undertaken in bad faith, class members will not be liable for 

defendant's attorney’s fees.” Martin v. Partsbase, Inc., 2020 WL 8254281, at *4 (S.D. Fla. Dec. 7, 

2020).

III. CONCLUSION

Plaintiff, Octavio Collado, requests that the Court determine that Count I is appropriate 

for conditional certification, that he can send notice to all captains, servers, and bussers, and that 

Defendants must produce the requested information to enable him to provide notice and a 

reminder notice as requested. 

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Respectfully submitted this 27th day of February 2023,

s/Brian H. Pollock, Esq.

Brian H. Pollock, Esq.

Fla. Bar No. 174742

brian@fairlawattorney.com

FAIRLAW FIRM

135 San Lorenzo Avenue

Suite 770

Coral Gables, FL 33146

Tel: 305.230.4884

Counsel for Plaintiff

Case 1:22-cv-23074-BB Document 86 Entered on FLSD Docket 02/27/2023 Page 12 of 12