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February 26, 1988

Vivone, et al.
Acme Markets, Inc. and American Stores Company

The opinion of the court was delivered by: FULLAM


 Seven former employees of Acme Markets, Inc. ("Acme") claim that Acme discriminated against them in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. Two of the seven plaintiffs lost their jobs in June 1982 as a result of Acme's decision to end its operations in the Baltimore area. The other plaintiffs lost their jobs (four were fired, one was demoted) in October 1981 in a reorganization involving the company's management ranks. After a relatively lengthy pre-trial period, during which time 36 claimants filed written consents opting into this class-action lawsuit, the case proceeded to trial in March 1987. Thirty-four of the opt-in plaintiffs and one of the six original named plaintiffs withdrew their claims before trial, so only the claims of seven plaintiffs (five named, two opt-in) were addressed in the March 1987 bench trial.

 During the bench trial, the parties agreed that rather than having their experts testify, their expert evidence would be submitted to the court in the form of reports. The evidentiary record was completed as of January 12, 1988.


 Defendants assert that the plaintiffs' claims are barred by the statute of limitations. According to defendants, the statutory limitations period in ADEA actions runs until the plaintiff files a written consent with the court. Applying this tolling principle to the facts of this case, defendants contend that the statute of limitations bars the claims of all the plaintiffs because (1) the named plaintiffs never filed written consents with the court; and (2) the opt-in plaintiffs Culatta and Smith filed written consents outside the two-year statutory period which defendants claim applies to this case. *fn1"

 The premise for defendants' statute-of-limitations defense -- that the special tolling mechanism of 29 U.S.C. § 256 applies to ADEA actions -- is refuted by the clear language of the ADEA. As the Sixth Circuit has noted, Congress incorporated certain sections of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., into the ADEA, but this incorporation was selective; 29 U.S.C. § 256 is not among the sections of the FLSA incorporated into the ADEA. Morelock v. NCR Corp., 586 F.2d 1096, 1103 (6th Cir. 1978), cert. denied, 441 U.S. 906, 60 L. Ed. 2d 375, 99 S. Ct. 1995 (1979); see also EEOC v. Gilbarco, Inc., 615 F.2d 985, 1011 (4th Cir. 1980) (Murnaghan, J., concurring and dissenting in part), but see O'Connell v. Champion Int'l Corp., 812 F.2d 393 (8th Cir. 1987).

 This lawsuit commenced when the Complaint was filed in April 1983. F.R.Civ.P. 3. Since the special tolling provision of the FLSA does not apply, I see no reason to diverge from the ordinary rule that the commencement of the lawsuit tolls the statute of limitations. Frank v. Capital Cities Communications, Inc., 48 Fair Empl. Prac. Cas. (BNA) 551, 33 Empl. Prac. Dec. (CCH) P34,285 (S.D.N.Y. 1983). It should be noted that this holding does not mean that unnamed plaintiffs have an interminable right to opt into ADEA class-action lawsuits. For example, in the interests of justice, to facilitate trial preparation and settlement discussions, after allowing a fair time for the filing of consents, a court may declare the class closed. Indeed, in this case, defendants asked for and received from this court an order specifying that all written consents were due within 30 days after notice was mailed to potential opt-in class members. Since both Culatta and Smith filed written consents within this period, their claims are not time-barred.

 The fact that Congress incorporated 29 U.S.C. § 216(b) into the ADEA does not undermine the conclusion that Congress failed to incorporate another FLSA provision, 29 U.S.C. § 256. These two FLSA provisions address entirely different concerns; § 216(b) addresses jurisdictional issues, including which unnamed plaintiffs will be bound by a class-action judgment (i.e., only those who affirmatively opt in); § 256 deals with another matter altogether, namely, how a plaintiff tolls the statute of limitations in an FLSA action. Given the separate purposes of these FLSA provisions, Congress could logically and sensibly have chosen to incorporate § 216(b) and exclude § 256 from the ADEA, as the unambiguous statutory language suggests Congress did.

 The legislative history behind the 1947 amendments to the FLSA (the Portal-to-Portal Act of 1947) underscores the distinct purposes served by these two FLSA provisions. This legislative history also illustrates why I rejected defendants' argument, raised in their motion to dismiss, that § 216(b) requires, as a jurisdictional matter, that named plaintiffs file a written consent; on this score, too, defendants' interpretation of the statutory framework confuses the jurisdictional requirements of § 216(b) with the special tolling requirements of § 256.

 The Portal-to-Portal Act restricted the scope of collective actions under the FLSA. In particular, § 7 of the Act, 29 U.S.C. § 256, stated that in collective FLSA actions, the statute of limitations set out in 29 U.S.C. § 255 would be tolled for each plaintiff, including plaintiffs named in the original complaint, only upon the filing of that plaintiff's separate written consent. On the other hand, § 5 of the Act, which amended § 216(b), narrowed the circumstances under which representative actions could be brought. Before the Portal-to-Portal Act was passed, § 216(b) allowed both representative or agent actions and "spurious" class actions. The 1947 amendment eliminated the former and while retaining the latter, required that represented employees affirmatively opt into the lawsuit. See LaChapelle v. Owens-Illinois, Inc., 64 F.R.D. 96 (N.D. Ga. 1974), affirmed 513 F.2d 286 (5th Cir. 1975); Burrell v. La Follette Coach Lines, 97 F. Supp. 279 (E.D. Tenn. 1951). Congress adopted the opt-in requirement, a departure from the ordinary opt-out procedures governing class actions under F.R.Civ.P. 23, in order to give employers a greater measure of certainty about whom they would be facing in court and to protect against half-hearted litigation. LaChapelle, 64 F.R.D. at 98, n. 3.

 Consistent with this legislative history, several courts have concluded that the FLSA requirement that even named plaintiffs file written consents derives not from the jurisdictional/notice requirements of 29 U.S.C. § 216(b) but rather from the special tolling mechanism of 29 U.S.C. § 256. See, e.g., LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir. 1975) n. 10; Drabkin v. Gibbs & Hill, Inc., 74 F. Supp. 758, 762 (S.D.N.Y. 1947).

 Since the filing of a complaint more than adequately provides the employer with notice of the named plaintiffs' intent to sue, these courts have recognized that Congress' intent to require even named plaintiffs to file written consents must inhere in something other than § 216(b). See Allen v. Atlantic Richfield Co., 724 F.2d 1131, 1134-35 (5th Cir. 1984). The reason for requiring named plaintiffs to file a separate consent has nothing to do with notice and certainty for the ...

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