govinfo:USCOURTS-moed-4_21-cv-00834-2

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MISSOURI 
EASTERN DIVISION 
 
DANIELLE PECK,  
individually and on behalf of a class of 
others similarly situated,  
 
  Plaintiff,  
 
 v.  
 
MERCY HEALTH, et al.,  
 
  Defendants. 
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 No. 4:21-CV-834 RLW 
 
MEMORANDUM AND ORDER 
 This matter is before the Court on the parties’ Joint Status Report and Submission of 
Proposed Notice and Consent-to-Sue Forms. (ECF No. 97). The parties agree on the content of the 
Notice of Collective Action, Consent-to-Sue Form, email notice, and email reminder (“ Proposed 
Notice Packet”). Id. The parties also agree that Plaintiff may distribute the Notice and Consent-to-
Sue Form via mail and email. Id. The parties disagree, however, as to whether Plaintiff should be 
allowed to notify putative collective members of this litigation via text message.  
Background 
 Plaintiff Danielle Peck brings this action against Defendants Mercy Health, Mercy Health 
Foundation, and MHM Support Services (collectively, “Mercy”) for alleged violations of the Fair 
Labor Standards Act, 29 U.S.C. §§ 201 -219 (“FLSA”), the Oklahoma Protection of Labor Act, 
Okla. Stat. tit. 40, §§ 165.1 et seq. (“OPLA”) and Oklahoma common law for breach of implied 
contract. (ECF No. 23 at ¶ 1). Mercy is a health system with locations in Missouri, Oklahoma, 
Arkansas, and Kansa s. Id. at ¶ 15. Plaintiff, who has worked for Mercy in Oklahoma as a Unit 
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Registration Representative since July 2016, asserts that Mercy willfully failed to compensate 
hourly-paid employees for work performed during meal breaks. Id. at ¶ 11.  
 On March 28, 2022, Plaintiff filed a Motion for Conditional Collective Certification. (ECF 
No. 37). The Court granted the motion on December 27, 2022, and certified the following FLSA 
collective class: 
All hourly -paid employees of the Defendants who were or are 
subject to the automatic meal break deduction policies at any time 
on or after three (3) years prior to the date on which the Court 
approves this collective certification. 
 
(ECF No. 90). The Court also ordered Mercy to provide the names, last known addresses, dates 
and locations of employment, job titles, phone numbers, and email addresses  of all putative 
collective members. Id. Mercy has identified approximately 58,000 potential plaintiffs. (ECF No. 
102).  
Discussion 
“[A] district court has both the duty and the broad authority to exercise control over a class 
action and to enter appropriate orders governing the conduct of counsel and the parties.” 
Hoffmann-La Roche Inc. v. Sperling , 493 U.S. 165, 171 (1989) ( citation and internal quotation 
marks omitted). “By monitoring preparation and distribution of the notice, a court can ensure that 
it is timely, accurate, and informative. Both the parties and the court benefit from settling disputes 
about the content of the notice before it is distributed.” Id. at 172. 
The Court has reviewed the parties’ Proposed Notice Packet and finds it  to be fair and 
accurate. The Court also finds that distribution of the Notice of Collective Action and Consent-to-
Sue Form via U.S. Mail and email is reasonably calculated to reach putative class members. All 
that remains for this Court to decide is whether distribution via text message is warranted under 
the circumstances.  
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Plaintiff asserts that distribution of the Notification of Collective Action and Consent -to-
Sue Form by text message will ensure that the information reaches  more individuals. (ECF No. 
103 at 3) (citing Murray v. Silver Dollar Cabaret, Inc. , No. 5:15-CV-5177, 2017 WL 514323, at 
*4 (W.D. Ark. Feb. 8, 2017)). Mercy argues that distribution by text message is “excessive and 
unwarranted.” (ECF No. 102 at 4). The Court agrees with Mercy.  
The Court acknowledges that other courts have permitted notice via text message  in 
collective action cases. See, e.g., Dickensheets v. Arc Marine, LLC, 440 F. Supp. 3d 670, 672 (S.D. 
Tex. 2020); Hancock v. Lario Oil & Gas Co., No. 2:19-CV-02140-JAR, 2019 WL 3494263, at *4 
(D. Kan. Aug. 1, 2019). But this Court agrees with the other courts in this Circuit that have found 
such notice to be  excessive and unnecessary. See, e.g., Haworth v. New Prime, Inc. , No. 6:19 -
03025-CV-RK, 2020 WL 1899276, at *2 (W.D. Mo. Apr. 16, 2020) (“It is further apparent to the 
Court that receiving a text message—which is usually automatic—is more intrusive than receiving 
an email.”); Lockett v. Pinnacle Ent., Inc. , No. 19 -00358-CV-W-GAF, 2021 WL 960424, at *9 
(W.D. Mo. Mar. 12, 2021) (prohibiting notice via text  message due to the privacy interests of 
potential plaintiffs); Midgett v. Werner Enterprises, Inc., No. 8:18-CV-238, 2020 WL 6163019, at 
*4 (D. Neb. Oct. 13, 2020), report and recommendation adopted , No. 8:18 -CV-238, 2020 WL 
6779149 (D. Neb. Nov. 18, 2020) (finding that notice by text message is “excessive and potentially 
invasive[.]”); Freeman v. Tyson Foods, Inc., No. 5:21-CV-05175, 2022 WL 3566615, at *7 (W.D. 
Ark. Aug. 18, 2022) (disallowing text message notice as needlessly repetitive); Adkinson v. Tiger 
Eye Pizza, LLC, No. 4:19-CV-4007, 2019 WL 5213957, at *9 (W.D. Ark. Oct. 16, 2019) (finding 
that notice by text message “would be needlessly repetitive[.]”). The Court will not permit Plaintiff 
to disseminate the Notification of Class Action and Consent-to-Sue Form via text message.    
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Plaintiff argues that even if this Court prohibits Plaintiff from sending text messages to all 
putative collective members, the Court should nevertheless permit Plaintiff to send text messages 
to any putative collective member whose mail and email address is inaccurate, and any putative 
collective member whose email address is unknown. (ECF No. 103 at 3-4). There is nothing in the 
record to suggest that any putative collective member’s contact information will be inaccurate. 
The Court is unpersuaded that notification via text message is warranted under the circumstances.     
Conclusion 
The Court finds that the  parties’ Proposed Notice Packet is fair and accurat e. The Court 
further finds that distribution of the Notice of Collective Action and Consent-to-Sue Form by mail 
and email is reasonably calculated to reach putative class members. Distribution of the same via 
text message is unwarranted.  
Accordingly,  
 IT IS HEREBY ORDERED that: 
1. The Court approves the parties’ proposed Notice of Collective Action, Consent-to-Sue 
Form, email notice, and email reminder. 
2. The Court authorizes Plaintiff to disseminate the Notice of Collective Action and the 
Consent-to-Sue Form via U.S. Mail and email. 
3. The Court authorizes Plaintiff to send the proposed  email reminder  30 days after 
emailing the original Notice of Collective Action. 
 
 
 
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4. Putative class members shall have 60 days from the date Plaintiff first sends the Notice 
of Collective Action to join the litigation.   
 
 
             
      RONNIE L. WHITE 
      UNITED STATES DISTRICT JUDGE 
 
Dated this 1st day of March, 2023.  
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