1

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________

JUAN JAVIER RIVERA, and

JOSE PABLO LEMUS, individually and 

on behalf of others similarly situated,

 Plaintiffs,

v. Civil Action No. 2:05-CV-01518-LP

THE BRICKMAN GROUP, LTD,

Defendant.

_____________________________________ 

BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION TO CERTIFY

FLSA COLLECTIVE ACTION AND TO ISSUE NOTICE

NOW come Plaintiffs and, pursuant to the agreed scheduling order, submit this brief in support of 

their motion to certify this action as an Fair Labor Standards Act collective action on behalf of similarlysituated employees of Defendant defined as:

All H-2B workers employed by The Brickman Group, Ltd. during 2003, 

2004, and 2005.

I. STATEMENT OF THE CASE

Plaintiffs Juan Javier Rivera and Jose Pablo Lemus are Mexican Nationals who, along with 

hundreds of other foreign workers, were employed by Defendant Brickman as landscape laborers during 

2002, 2003, 2004 and 2005. Defendant Brickman obtained permission to import these foreign workers 

on a temporary basis pursuant to the federal government’s “H-2B” visa program (codified at 8 U.S.C. § 

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1101(a)(15)(H)(ii)(b)).1 Plaintiffs allege four causes of action: (1) violation of the Fair Labor Standards Act 

(FLSA); (2) violations of the Pennsylvania Wage Payment and Collection Law; (3) breach of contract; and 

(4) wrongful discharge. The FLSA claim is brought on behalf of all similarly situated H-2B workers 

employed by Defendant between 2003 and 2005; the Pennsylvania Wage Payment claim is brought on 

behalf of Defendant’s H-2B workers who were employed in Pennsylvania between 2002 and 2005; the 

third and fourth causes of action pertain only to Plaintiff Rivera individually. 

The instant motion seeks preliminary certification of Plaintiffs’ FLSA claim as a representative 

action. That claim asserts that all of the foreign H-2B workers imported by Brickman in 2003, 2004, and 

2005 had to incur a number of expenses in order to accept the jobs offered by Defendant Brickman, 

including visa fees charged by the United States government, recruitment fees charged by Defendant’s 

recruiters, and transportation costs associated with travel between the place of recruitment in Mexico and 

Brickman’s job sites in the United States. Plaintiffs allege that all of these costs were primarily for the 

benefit of Defendant Brickman and, consequently, operated as de facto deductions from Plaintiffs’ first 

week’s wages for purposes of measuring compliance with the minimum wage and overtime requirements of 

the Fair Labor Standards Act. See Arriaga v. Fla. Pacific Farms, LLC, 305 F.3d 1228 (11th Cir. 

2002) (holding visa and transportation costs incurred by foreign visa workers operated as de facto

deductions from the workers’ first week’s wages for purposes of FLSA). As a result of these de facto

deductions – which amount to more than $500 per worker – Plaintiffs contend that none of Brickman’s H-

 

1

 For a general description of the H-2B program see the U.S. Department of Labor’s web site 

at: http://www.dol.gov/asp/programs/guide/tnw.htm . See also Daylily Farms, Inc. v. Chao, 357 

F.Supp.2d 356, 357-358 (D. Mass. 2005) (describing operation of H-2B program).

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2B workers earned the minimum wage and overtime premium mandated by the Fair Labor Standards Act 

during his first week of employment. Because all of Brickman’s H-2B workers are similarly situated with 

respect to Defendant Brickman’s policy of imposing these de facto deductions upon H-2B workers, 

conditional certification of this action as an FLSA collective action is appropriate.

II. LEGAL STANDARDS GOVERNING FLSA COLLECTIVE ACTIONS

A. PROCEDURE FOR PRELIMINARY CERTIFICATION

Section 16(b) of the FLSA provides that a person may maintain an action on “behalf of himself . . . 

and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he 

gives his consent in writing to become such a party and such consent is filed in the court in which the action 

is brought.” 29 U.S.C. 216(b). Thus, there are only two requirements to proceed as a representative 

action: (1) all plaintiffs must be “similarly situated;” and (2) a plaintiff must consent in writing to take part in 

the suit. This latter requirement means that a collective action follows an “opt-in” rather than an “opt-out” 

procedure. See De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 306 (3rd Cir. 2003); Bosley v. Chubb 

Corp., 2005 WL 1334565 at *2 (E.D. Pa. 2005); Goldman v. Radioshack Corp., 2003 WL 21250571 

at *5-6 (E.D. Pa. 2003). The usual Rule 23 class action requirements do not apply to FLSA collective 

actions. Goldman, 2003 WL 21250571 at * 5. See also Thiessen v. General Electric, 267 F.3d 1095, 

1105 (10th Cir. 2001) (requirements for pursuing an FLSA class action are “independent of, and unrelated 

to, the requirements for class actions under Rule 23"). When employees are shown to be similarly situated, 

the district court has the discretion to implement the collective action procedure by facilitating notice to 

potential plaintiffs. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 172 (1989). Such notice 

should be “timely, accurate, and informative.” Id. 

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Courts in the Third Circuit have long followed a two-stage procedure for determining whether a 

case should proceed as an FLSA representative action. See Bosley , 2005 WL 334565 at *2; Smith v. 

Sovereign Bancorp, Inc., 2003 WL 22701017 at *2 (E.D. Pa. 2003); Felix de Asencio v. Tyson Foods, 

Inc., 130 F.Supp. 660, 663 (E.D. Pa. 2001) aff’d 342 F.3d 301 (3rd Cir. 2003); Lusardi v. Xerox 

Corp.,118 F.R.D. 351 (D.N.J. 1987). The first step is conducted early in the litigation when the court has 

limited evidence regarding the “similarly situated” issue. At this stage the court grants only conditional 

certification for the purpose of issuing notice and discovery.2 Because the court has minimal evidence, and 

the ruling can be reconsidered later, this determination is usually made using a “comparatively liberal 

standard.” Bosely, 2005 WL 1334565 at *2; Goldman, 2003 WL 21250571 at *6 (same); Mueller v. 

CBS, Inc., 201 F.R.D. 425, 428 (W.D. Pa. 2001) (same). If the district court ‘conditionally certifies’ the 

class, potential class members are given notice and the opportunity to opt-in. . 

The second stage is typically precipitated by a motion for “decertification” by the defendant after 

discovery is largely complete. Goldman, 2003 WL 21250571 at * 6. If the additional claimants are 

similarly situated, the district court allows the representative action to proceed. If the claimants are not 

similarly situated, the district court decertifies the class and opt-in plaintiffs are dismissed without prejudice. 

See, e.g. Moss v. Crawford, 201 F.R.D. 398, 400, 409-410 (W.D. Pa. 2000) (denying second-stage 

 

2

 Courts have disagreed whether, at the initial conditional certification stage, mere pleading is 

sufficient or whether a plaintiff must provide some “modest factual showing” to support his allegations. 

Compare Felix de Asencio, 130 F.Supp. 2d at 663 (substantial allegations sufficient), with Smith, 

2003 WL 22701017 at *3 (requiring “a basic factual showing that the proposed recipients of opt-in 

notices are similarly situated to the named plaintiffs.”). The Court need not resolve that issue since 

Plaintiffs have made a substantial factual showing beyond their pleadings. See Plaintiffs’ supplemental 

motion for certification and evidence submitted therewith.

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decertification motion and discussing standard applicable to such motions).

The reason for this two-step process with its relatively liberal standard for issuing early notice of the 

right to opt-in arises, in part, because, unlike Rule 23 class actions where the statute of limitations is tolled 

for the putative class members upon filing of the suit, the statute of limitations for the members of an FLSA 

class action is not tolled until each class member affirmatively opts-into the action. See Hoffman v. Sbarro, 

Inc., 982 F.Supp. 249, 260 (S.D.N.Y. 1997). Thus it is critical that notice of the right to opt-in issue 

promptly after the filing of the case.

B. THE “SIMILARLY SITUATED” STANDARD

Although the FLSA does not define the term “similarly situated,”courts have generally agreed that 

Plaintiffs must allege that the putative class members were injured as a result of a policy of the employer that 

affected all class members in a similar fashion. See Goldman v. RadioShack Corp., 2003 WL 21250571 

at *6 (E.D. Pa. 2001) (issue is whether “the members of the putative class were together the victims of a 

single decision, policy or plan.”); Bosley, 2005 WL 1334565 at * 3 (same); Felix de Asencio, 130 

F.Supp. 2d at 663 (same); Mueller v. CBS, Inc., 201 F.R.D. 425, 428 (W.D. Pa. 2001); Sperling v. La 

Roche, 118 F.R.D. 392, 428 (D. N. J. 1988) (same).

Some Third Circuit cases have applied a slightly different standard, finding plaintiffs to be similarly 

situated if they (1) are or have been employed in the same corporate department, division, and location; (2) 

 have advanced similar claims; and (3) have sought substantially the same form of relief.” De Asencio v. 

Tyson Foods, 130 F. Supp.2d 660 (E.D. Pa. 2001) quoting Lockhart v. Westinghouse Credit Corp., 

879 F.2d 43, 51 (3rd Cir. 1989). This three part test was adopted from an age discrimination case in which 

the court merely noted that the existence of the above three factors was sufficient to establish that the 

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plaintiffs were similarly situated; it did not suggest that those criteria had to be met in all cases. Plummer v. 

General Electric Co., 93 F.R.D. 311, 312 (E.D. Pa. 1981). This three-part test has not been followed 

strictly even by the minority of courts that refer to it. For example, in Lockhart, the Third Circuit cited the 

test, but emphasized that the three factors must be balanced to determine whether there is sufficient 

homogeneity among the class members and ultimately, applied a test that virtually identical to the “common 

policy” test used in Goldman. The Court concluded that the fact that plaintiffs alleged that they were 

injured by a common policy and sought the same relief justified certification of a collective action even 

though the plaintiffs worked for different branch offices in four different states. Lockhart, 879 F.2d at 52 fn. 

10.3 See Mershon v. Elastic Stop Nut Division of Harvard Industries, Inc., 1990 WL 484152 at *6 

(D. N.J. 1990) (“Lockhart in fact expanded on [the Plummer] rule somewhat, holding that the fact that 

class members work in different locations does not invalidate a representative action.”). Since Lockhart

was decided in 1989, Third Circuit courts have certified many collective actions involving workers 

employed in different departments and locations where the injury at issue arises from a common policy or 

practice.4 

 

3

 The dissent in Lockhart pointed out that the four opt-in plaintiffs worked in Pennsylvania, 

Georgia, Florida, and Michigan and also worked for different divisions of the company. Lockhart, 879 

F.2d at 61 (Garth, J., dissenting).

4

 See, e.g.,De Asencio v. Tyson Foods, 342 F.3d 301 (3rd Cir. 2003) (conditional 

certification of 3200 member class at two different chicken processing plants); Trotter v. Perdue 

Farms, Inc., 2001 WL 1002448 (D.Del. 2001) (certifying FLSA class of 16,000 production 

employees working in sixteen different plants in 8 different states); Goldman v. Radioshack, 2003 WL 

2125071 at *1-*2 (E.D. Pa. 2003) (certifying class of managers at all Radioshack “Y” stores in 

Pennsylvania); Moss v. Crawford, 201 F.R.D. 398, 400 (W.D. Pa. 2000) (class of monitors, 

adjustors, and invoice reviewers working at different locations). Ultimately, whether work in the same 

department or location is critical, depends on the issues in the case. See Morisky v. Public Service 

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Plaintiffs’ believe that the first standard (plaintiffs subject to a common policy or practice) is the 

proper standard to be applied in this action, but under either standard, the proposed class is clearly similarly 

situated. 

III. CONDITIONAL CERTIFICATION IS APPROPRIATE IN THIS CASE

A. Plaintiff and the Class Members are Similarly Situated

Plaintiffs clearly meet the first “similarly situated” test exemplified by cases such as Goldman, and

Bosley. All members of the class incurred essentially the same visa, transportation, and recruitment costs 

associated with accepting work under one of Brickman’s H-2B visas. Indeed, the majority of those 

expenses were imposed on workers as a matter of law, or as a matter of necessity (e.g. transportation). 

See Motion, Statement of Facts ¶¶ 13-17. All class members were equally subject to Defendant’s policy 

decision to require H-2B workers to bear those costs, rather than reimburse them. And all members of the 

class assert the same FLSA claim – i.e. that the pre-employment visa, transportation, and recruitment costs 

they incurred operated as de facto deductions from their first week’s wages causing those wages to fall well 

below the level required by the FLSA. 

Plaintiffs also meet the similarly situated test exemplified by Lockhart, 879 F.2d at 52. All of the 

class members perform essentially the same job, albeit in different locations. More importantly, the 

differences in location or job duties have absolutely nothing to do with the FLSA claim at issue – i.e. 

 

Electric and Gas Co., 111 F.Supp. 2d 493, 498 (D. N. J. 2000) (nothing that where the principal 

issue in a case is a employer policy that affects workers in different locations and jobs equally, there is 

no reason a class should not encompass different jobs; but where the central issue is an FLSAexemption that depends on a worker’s job duties, it is critical that all members of the class have the 

same job duties).

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whether the pre-employment costs associated with receiving an H-2B visa should, or should not, be 

considered de facto wage deductions for purposes of the FLSA. All members of the class raise the same 

claim – i.e. that the pre-employment costs associated with their visas must be considered in determining 

FLSA compliance. And, finally, all class members seek the same form of relief, i.e. reimbursement of these

de facto deductions up to the level of the required minimum wage or overtime, an equal amount of 

liquidated damages and attorneys fees. 

Thus under either test, the class affected by Defendant’s policy of shifting visa costs to its foreign 

workers meets the “similarly situated” standard for preliminary certification. That was the conclusion of the 

court in the only other case that has considered this de facto deduction issue on behalf of foreign visa 

workers. De Luna-Guerrero v. North Carolina Growers Association, 338 F.Supp.2d 649, 653- 655 

(E.D. N.C. 2004) (certifying FLSA collective action on behalf of 9,000 Mexican workers who alleged that 

the pre-employment visa and transportation costs they incurred during the 2000, 2001, and 2002 seasons 

reduced their wages below the FLSA minimum.). 

The primary purposes of a Section 216(b) collective action are (1) to lower costs to the plaintiffs 

through the pooling of resources; and (2) to limit the controversy to one proceeding which efficiently 

resolves common issues of law and fact that arose from the same alleged activity. Hoffmann-La Roche, 

Inc. v. Sperling, 493 U.S. 165, 170 (1989); Moss, 201 F.R.D. at 410. Both of these purposes would be 

served by deciding whether H-2B pre-employment expenses should be treated as wage deductions in a 

single case rather than through multiple individual suits. Indeed, as is made clear by Arriaga v. Florida 

Pacific Farms, 305 F.3d 1128 (11th Cir. 2002), the issue of de facto wage deductions is essentially one of 

law – i.e. whether, under the Department of Labor’s regulations, the various pre-employment expenses 

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incurred by H-2B workers should be viewed as “primarily for the benefit and convenience of the employer” 

or the employee. Id. at 1236-1237. 

Defendant’s Response to Plaintiffs’ [Initial] Motion to Certify a Representative Class (filed August 

4, 2005), asserts that the class is not similarly situated, but no where explains the basis for that assertion. 

Defendant admits that all of its H-2B workers incurred various pre-employment expenses associated with 

their H-2B visas and that it did not reimburse those expenses or take them into consideration for purposes 

of the FLSA. See Defendant’s Admissions 3-8. Nevertheless, in response to Plaintiffs Interrogatories, 

Defendant asserts that the class is not similarly situated because of:

differences in the workers’ country of origin; differences in the

circumstances of workers’ travel from Mexico or Guatemala to the United 

States, and from their homes in those countries to the places from which 

they departed for the United States, including differences in method, mode, 

distance, and cost of transportation; differences in the consular practices in 

Mexico and Guatemala; differences in recruiters, recruiting entities,

recruiting practices; differences in representations made by different 

recruiters to different H-2B workers; differences in places of recruitment; 

differences in manners and methods of recruitment; differences in forms 

and/or documents used to recruit workers; differences in where H-2B 

workers were employed within the U.S.; differences in seasons or

combinations of seasons during which H-2B workers were employed; 

differences in whether workers were given cash advancements and, if so, 

how much and whether they repaid them; differences in whether H-2B 

workers were preferred (i.e. repeat) workers or first-time hires;

differences in whether workers in whether workers have timely filed their 

opt-ins to this litigation and when their alleged claims arose; differences in 

fees paid by different workers, including fees to foreign and domestic 

governmental agencies, processing fees, fees paid to their recruiters, those 

paid for assistance in completing forms necessary to the H-2B hiring 

process; differences in wages and overtime worked; differences in

incidental expenses, including subsistence costs while traveling to the U.S. 

Def. Interrogatory Ans. #13. While this list is dauntingly long, it has little in the way of substance. Many of 

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these “differences” have no relevance whatsoever to this action – i.e. whether an H-2B worker came for 

Guatemala or Mexico or worked in Pennsylvania or Maryland has no bearing on whether the preemployment expenses at issue were “primarily for the benefit and convenience of the employer.” Certainly 

nothing in the Arriaga decision suggests that such differences have any relevance. Most of the other 

alleged “differences” are relevant only to amount of any given worker’s damages. For example, variations 

in the costs of transportation, visas, and incidental expenses as well as differences in pay rates may affect 

the amount of damages owed to each worker. Advances made to workers and differences in the number of 

hours worked the first work week might also affect the amount of damages recovered. But differences in 

the amount of each class member’s damages does not affect the propriety of class certification. The 

members of a collective action only need to have similar claims, not identical damages. Mershon, 1990 WL 

484152 at *6 (claims need only be similar, not identical); Crawford, 201 F.R.D. at 410 (variations in job 

duties, locations, billing rates, and method of pay does not defeat collective action where all present the 

same claim). Besides, whatever the differences in costs, the amount of each workers damages will be 

calculated using the same simple arithmetic formula.5

Finally, the fact that class members may have been recruited by different recruiters and that 

Brickman denies that the recruiters were its agents does not defeat conditional certification issue. As noted 

above, the majority of the charges at issue were imposed on all workers by law (visa/passport fees) or 

 

5

 Damages can be calculated by determining the amount of minimum wage or overtime owed 

for the hours worked during the first work week, subtracting the cost of any de facto deductions paid 

by the worker, and adding the wages actually paid. Once the costs are known, this calculation can be 

made electronically for all class members. Even under the stricter standards of Rule 23, differences in 

damages does not affect class certification. See, e.g. Samuel v. Univ. of Pittsburgh, 538 F.2d 991, 

995-996 (3rd Cir. 1976). 

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practical necessity (transportation from Mexico or Guatemala to the work site) regardless of the recruiter 

who contacted the worker. Arriaga makes clear that whether these charges are for the “primary benefit 

and convenience of the employer” or the employee is a question of law that is independent of who recruited 

the workers or what the recruiter may or may not have said. The only pre-employment expense that the 

statements or actions of the recruiter may have any bearing on is the recruitment fee. See Arriaga, 305 

F.3d at 1244-1245 (denying reimbursement of recruitment fees because the employer specifically directed 

its agent not to charge such fees and Plaintiffs failed to prove apparent agency). Even as to that charge, it 

appears at that Brickman had a uniform policy of authorizing the recruitment fee and informing workers that 

they had to pay it. See, e.g., Brickman 2004 Handbook at B183-184 (notice to returning workers that 

they should contact LLS and listing LLS’ recruitment fee). Such actions by Brickman clearly establish its 

responsibility for the recruitment fee under the standard discussed in Arriaga, regardless of who the 

recruiter was. Arriaga, 305 F.3d at 1244-45. At the very least this evidence demonstrates that it would be 

inappropriate at this early conditional certification stage to deny Plaintiffs the opportunity to demonstrate that 

the differences in recruiters is of no material consequence. As several Pennsylvania courts have noted: 

[Forcing] Plaintiffs to counter every one of Defendant’s 

assertions concerning the similarly situated question at this 

early stage of the action would ‘condemn any large class 

claim under the [FLSA] to a chicken-and-egg limbo.

Bosely, 2005 WL 1334565 at * 5; Felix de Ascencio, 130 F.Supp.2d at 663 (same). See also, 

Goldman, 2003 WL 21250571 at * 8 (deferring fact-specific inquiry into alleged differences between class 

members until second-stage decertification motion and noting that “[d]uring the first-tier inquiry, we ask only 

whether the plaintiff and the proposed representative class members allegedly suffered from the same 

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scheme.”). Moreover, even if discovery demonstrates factual differences relating to the recruitment charges 

imposed by Del Al, LLS, and Brickman’s Guatemalan recruiters, it is quite likely that at the decertification 

stage the Court would conclude that it would still be more efficient to resolve all claims in a single case with 

three sub-classes than in it would be to force Brickman’s H-2B workers to file thousands of individual suits. 

B. 2005 Workers Are Properly Included In the Class

Defendant appears to believe that Plaintiffs are not adequate representatives of class members 

working during the 2005 season, or lack standing to represent 2005 workers. However, Plaintiffs have 

made a factual showing that H-2B workers incurred the same visa, recruitment, and transportation costs in 

2005 that they did in prior years and that Brickman’s actions with respect to its 2005 H-2B workers, in 

particular its policy of not reimbursing those expenses, also remained the same. Thus the FLSA claims 

presented 2005 workers are identical to those for 2003 and 2004 and there is no reason why their claims 

should not be included in this action. After all, 29 U.S.C. 216(b) authorizes named plaintiffs to represent all 

similarly situated workers and 2005 workers are as similarly situated to the named Plaintiffs in terms of the 

de facto deduction issue presented as 2003 and 2004 workers. As long as the similarly situated 

requirement is met, courts have had no hesitation including all workers with live claims in the class even if 

they worked at different time periods from the named plaintiff. See, e.g., Goldman v. Radioshack Corp., 

2003 WL 21250571 (E.D. Pa. 2003) (certifying in 2003 class of employees who worked on or after 

December 11, 1999 to be represented by plaintiff who worked from 1985 to September 2001); Brown v. 

Money Tree Mortgage, Inc., 222 F.R.D. 676, 682 (D. Kan. 2004) (certifying FLSA class of all workers 

employed during the three years preceding the filing of the complaint even though the named plaintiff only 

worked for about seven weeks). See also, De Asencio, 342 F.3d at 313 (ordering notice to be sent to 

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700 employees hired after the initial notice was issued). Even under the stricter standards of Rule 23, 

former employees have frequently been certified to represent classes including current employees. See, 

e.g., Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 247 (3rd Cir. 1974) cert denied 421 U.S. 1011 

(1975): De Gregorio v. O’Bannon, 86 F.R.D. 109, 114 (E.D. Pa. 1980).

Besides, even if the class were limited to 2003 and 2004 H-2B workers, it is clear that a very large 

percentage of those workers return each year. See, Declaration of John Skrodinsky, p. 7 at ¶15(j)

(Attachment 3 to Statement of Facts) and Exhibit JS-2 thereto (Attachment 4).

6

 Thus, many of the 2003 

and 2004 workers who opt-in to this case will also have de facto deduction FLSA claims for 2005. It 

would make no sense to refuse to consider the 2005 claims of workers whose 2003 and 2004 claims are 

already before the court. And, as long as the Court will be considering some 2005 claims in any event, 

efficiency would dictate that it consider the de facto deduction claims of all workers who were employed in 

2005. Cf. Braunstein v. Eastern Photographic Laboratories, Inc., 600 F.2d 335, 336 (2nd Cir. 1979) 

(Section 216(b) should be given a liberal construction in light of the broad remedial purpose of the Act as 

well as the interest of the courts in avoiding multiplicity of suits).

C. Other Considerations

Because the class members must opt-in, the issue of adequacy of the named Plaintiff is not the same 

as it is under Rule 23. Nevertheless, Plaintiff will adequately protect the class. There are no conflicts 

between the Plaintiffs’ claims and those of the opt-in class members. Plaintiffs’ attorneys have discussed 

and thoroughly explained to the plaintiffs the nature of a representative action and the potential advantages 

 

6 At least 80.4% of the 2002 H2B workers were expected to return to Brickman in 2003.

¶15(j) and Exhibit JS-2. Attachments 3 and 4.

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and disadvantages to the named plaintiffs by proceeding in a representative action rather than individually. 

Plaintiffs’ counsels have prosecuted numerous class actions and collective actions in the past and are 

qualified to prosecute this claim. See Affidavit of Edward Tuddenham and Declaration of Attorney Arthur 

N. Read.

Plaintiffs are unaware of any other litigation against Defendant on behalf of its H-2 B landscape 

workers. Thus, efficiency would be achieved by concentrating all such claims in this litigation.7

D. Notice And Length of Opt In Period

A proposed notice to be sent to the members of the class is attached to Plaintiffs supplemental

motion to preliminarily certify a collective action. Plaintiffs propose that class members have at least six 

months from the time notice issues to file their consent to sue forms. Such a period of time is not 

unreasonable, particularly given the fact that the class members reside in rural areas outside of the United 

States where mail delivery may not be as dependable as it is in the United States and given the fact that the 

class members are migrant workers who spend large portions of the year away from home. Third Circuit 

courts have authorized similar opt-in periods. See De Asencio, 342 F.3d at 313 (ordering the district court 

to reopen the original four month opt-in period for a reasonable period of time); Goldman v. Radioshack 

Corp., 2003 WL 21250571 (E.D. Pa. 2003) (approving a six month opt-in period).

Finally, Plaintiff requests that the Court order Defendant to provide Plaintiffs’ counsel with the last 

known address of all members of the class as defined in the notice. These addresses should be provided in 

 

7

 Lemus Guerrero v. The Brickman Group LLC , Case No. 1:05CV0357 (W.D. Mich filed 

2005), raises the same de facto deductions issue on behalf of H-2B workers employed in Michigan. 

However, the employer in that case is a different entity from the Defendant in this case and there is no 

overlap of claims between the two suits.

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computer readable form if Defendant has them in such form. Plaintiffs’ counsel will bear the cost of mailing 

the notices.

CONCLUSION

For all of the foregoing reasons, this Court should conditionally certify this action as a representative 

action on behalf of similarly situated H-2B workers employed by Defendant Brickman at any time during the 

years 2003, 2004, and 2005 and approve the notice attached to Plaintiffs’ motion. The Court should also 

order Defendants to provide plaintiff with the home address and last known addresses of all potential class 

members, so that Plaintiffs’ counsel may issue the notice to the potential class members.

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Dated: September 30, 2005

Respectfully submitted,

________________________________

Arthur N. Read

Attorney Registration No. 29360

Teresa M. Rodriguez

Attorney Registration No. 93912

Manuel A. Boigues

Attorney Registration No. 94931

Friends of Farmworkers, Inc.

924 Cherry St., 4th Floor

Philadelphia, PA 19107-2411

Tel: (215) 733-0878 

Fax: (215) 733-0876

Edward Tuddenham

272 W. 107th St. #20A

New York, New York 10025

Tel: (212) 866-6026 

Fax: (212) 866-6026 

ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE

I certify that the foregoing Brief in Support of Plaintiffs’ Motion to Certify FLSA Collective 

Action is being served by Electronic mail to the Defendant’s attorneys at Dechert LLP as follows:

Alan D. Berkowitz Email: alan.berkowitz@dechert.com

Brian E. Hirsch Email: brian.hirsch@dechert.com

Matthew L. Wiener Email: matthew.wiener@dechert.com

________________________________

Arthur N. Read

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