In the United States Court of Federal Claims

No. 19-844C

(Filed February 24, 2020)

NOT FOR PUBLICATION

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PLAINTIFF NO. 1, et al., *

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Plaintiffs, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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ORDER

Plaintiffs have filed a mostly-unopposed motion to notify potential class 

members regarding this action brought under the Fair Labor Standards Act (FLSA), 

29 U.S.C. § 201, et seq. See Pls.’ Mot. for Notice (Pls.’ Mot.), ECF No. 24. After 

review, the Court finds that the unopposed portions of the proposed notice comply 

with the Supreme Court’s requirement that such notices maintain the neutrality of 

the tribunal with respect to the merits of the claim. See Hoffmann-La Roche Inc. v. 

Sperling, 493 U.S. 165, 174 (1989). Among these unopposed aspects of the proposed 

notice is a description of the lawsuit which contains the number of plaintiffs who 

have already joined the suit at the time a first notice is sent. Def.’s Resp. to Pls.’ 

Mot. (Def.’s Resp.), ECF No. 26, at 1.

The parties agree that a second notice may be sent to non-responsive 

potential plaintiffs, at plaintiffs’ expense, one month prior to the deadline for receipt 

of consent forms. Pls.’ Mot. at 3. The sole dispute concerns whether the number of 

plaintiffs who have already joined the lawsuit should be updated to reflect any 

changes since the sending of the first notice. Plaintiffs contend this is accurate 

information which may be important to potential plaintiffs in making “informed 

decisions about whether to participate.” Id. at 2–3 (quoting Hoffman-La Roche, 493 

U.S. at 170). 

Defendant opposes this revision of the second notice, stating that our court 

has “typically approved a second notice, but required that it be identical to the 
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original notice.” Def.’s Resp. at 2 (citing Doe No. 1 v. United States, 143 Fed. Cl. 113 

117 (2019); Plaintiff No. 1 v. United States, 139 Fed. Cl. 440, 443 (2018)). The two 

cases cited, however, do not reflect any requirement imposed by the court, but 

rather the adoption of a notice process proposed by the parties in which the second 

notice happened to be identical to the first. Indeed, defendant concedes that in one

of these cases, it later agreed to allow the second notice to be revised to include the 

number of plaintiffs who had joined. Id. at 2 n.1 (discussing Plaintiff No. 1 v. 

United States, No. 18-393C); see also Pl.’s Mot. at 2. The other case, however, is 

among the two instances cited by the government of unsuccessful motions by 

plaintiffs to change the agreed-upon language in a second notice to recite the exact 

number of participating plaintiffs rather than merely stating there were “several.” 

See Ex. B to Def.’s Resp. (Doe No. 1 v. United States, No. 19-152C).

The cases cited by the government concern whether approved notice language 

should be subsequently changed, and not what that language should be in the first 

place. Defendant has provided no support for its arguments that language must be 

identical in both notices, or that a heightened standard such as a “compelling 

reason” must be met for the second notice to differ from the first. The Court will 

accordingly review the contested portion of the proposed notice under the factors 

identified by the Supreme Court, and determine whether the content “is timely, 

accurate, and informative,” and whether it gives “the appearance of judicial 

endorsement of the merits of the action.” Hoffman-La Roche, 493 U.S. at 172, 174.

Without question, the exact number of individuals who have chosen to be 

parties to a lawsuit as of a given date is “timely” and “accurate.” The government 

disputes whether this number is informative, arguing that “[h]ow many plaintiffs 

have joined this action is irrelevant to the essence of the lawsuit and is not a 

predicate upon which to allow a revised second notice.” Def.’s Resp. at 3. But if the 

number of plaintiffs in the case has no place in a notice to potential plaintiffs, why 

did the government agree to include this number in the first notice? And since an 

exact number will be in the first notice, a second notice with that same number 

would be inaccurate unless the number had not changed in the interim. The 

government suggests its own revision to the second notice and would replace the 

number with “several” or “multiple.” Id. But such a general term would certainly 

be less informative than an exact number.

Taking the opposite tack, the government also seemingly argues that use of 

an exact number would be too informative, because an increase in the number from 

the first to the second notice is designed “to motivate even more putative plaintiffs 

to join the lawsuit,” and thus “inappropriately seeks to encourage plaintiffs to join 

the lawsuit.” Id. There are two problems with this argument. First, the number of 

plaintiffs who have joined in this lawsuit is simply a fact, not a qualitative 

characterization of the merits of the case. In that regard, the number of plaintiffs 

participating says far less about the expectations of the parties than does the fact 
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that a tentative settlement has been negotiated and awaits approval by the 

Attorney General---a matter which the government has agreed should be contained 

in the notice. See Pls.’ Mot., Ex. A at 2.

The second problem with defendant’s position is that it assumes that a 

change in the number of plaintiffs will necessarily make participation more 

attractive to potential plaintiffs. But it may well be that the reason the vast 

majority of potential plaintiffs do not respond to the initial notice is because the 

notice was misplaced or overlooked, and thus they will not have it in hand to 

compare to the second notice. Moreover, it is possible that some participating 

plaintiffs may change their mind and seek to withdraw from the lawsuit. Or the 

number may increase but modestly in the two months between the two notices. To 

date, 12 plaintiffs have filed consent forms to be parties to this case, pursuant to 29 

U.S.C. § 216(b). See ECF Nos. 9–10, 15–18, 22–23, 42–43. Even if that number 

were to increase significantly before the second notice is sent, a potential plaintiff 

would not be in a position to assess the relative popularity of the lawsuit without 

knowledge of the total number of potential plaintiffs---which is something the 

plaintiffs currently do not even possess. Compare Pls.’ Unopp. Mot. for Conditional 

Cert., ECF No. 19 at 1 (estimating the number of potential class members to be 

approximately 1,000) with Pls.’ Reply, ECF No. 28 at 2 n.1 (noting that the 

government apparently believes the size of the potential class is between 200 and 

300).

In light of the foregoing, the Court concludes that the inclusion of accurate 

numbers for participating plaintiffs in both notices would be informative for the 

potential plaintiffs but would not constitute improper solicitation of claims. See 

Hoffman-La Roche, 493 U.S. at 174. Accordingly, the Court approves plaintiffs’ 

proposed notice and GRANTS their motion for notice to potential plaintiffs. 

IT IS SO ORDERED.

s/ Victor J. Wolski

VICTOR J. WOLSKI

Senior Judge