Constantine v. AAA Cooper Transportation

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ALEXANDER CONSTANTINE, 	§
individually and on behalf of all others 	§
similarly situated, 	§
§
Plaintiff, 	§
§
V. 	§ 	No. 3:24-cv-2925-K
§
AAA COOPER TRANSPORTATION, 	§
§
Defendant. 	§
MEMORANDUM OPINION AND ORDER
In this putative collective action under the Fair Labor Standards Act (“FLSA”),
Plaintiff Alexander Constantine, individually and on behalf of all others similarly
situated (“Plaintiffs”) filed an Expedited Motion for Protective Order and Other Relief
[Dkt. No. 47] (the “MPO”) that United States District Judge Ed Kinkeade then
referred to the undersigned United States magistrate judge for hearing, if necessary,
and determination or recommendation, see Dkt. No. 48; 28 U.S.C. § 636(b).
Previewing their motion, Plaintiffs explain that, without their knowledge or
the 	Court’s 	permission, 	Defendant 	AAA 	Cooper 	Transportation 	(“ACT” 	or
“Defendant”)
has directly contacted putative collective action members about the
substance of this lawsuit and attempted to settle their [FLSA] claims
through unauthorized, coercive and misleading “Settlement and Release
of Claims” forms without approval of the Court or Plaintiffs’ counsel.
Specifically, on or about November 10, 2025, while Plaintiff’s Motion for
FLSA Certification and Notice to Putative Collective Action Members
[Dkt. No. 30] was already pending before the Court, Defendant directly
and impermissibly contacted and solicited members of the putative class
to sign an agreement purporting to waive their rights under the FLSA,
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settle any and all claims arising from this lawsuit, and prevent them
from exercising their legal rights to participate in this FLSA action.
Dkt. No. 47 at 1-2; see Dkt. No. 47-1 (Cover Letter and Settlement Agreement and
Release of Claims sent to putative class member Giovanni Lewis).
Through their MPO, Plaintiffs seek an order “(1) declaring any Agreements
obtained by Defendant to be null and void; (2) prohibiting Defendant from soliciting
additional Agreements or otherwise communicating with putative class members
regarding the lawsuit and any of the issues raised by this action; (3) requiring
Defendant to immediately provide to Plaintiff’s counsel a copy of all Agreements and
other written communications with Mr. Lewis and putative class members regarding
the issues in this lawsuit; (4) permitting a corrective notice to be issued to notify
putative class members that any Agreements signed by them are null and void and
do not affect their right to participate in this action or to seek any and all unpaid
wages and other damages; and (5) awarding Plaintiffs their reasonable attorneys’ fees
and costs associated with this motion.” Dkt. No. 47 at 3-4.
ACT filed an expedited response, Plaintiffs filed an expedited reply, and the
Court conducted oral argument on the MPO on January 8, 2026. See Dkt. Nos. 49-53.
The undersigned has authority to enter a nondispositive order granting
attorneys’ fees or other nondispositive sanctions or denying a request for what might
be considered a dispositive sanction. See 28 U.S.C. § 636(b); Merritt v. Int’l Bhd. of
Boilermakers, 649 F.2d 1013, 1016-17 (5th Cir. Unit A 1981) (per curiam); Siegel v.
Compass Bank, No. 3:18-cv-1023-X, 2021 WL 4498914, at *1 (N.D. Tex. Jan. 11,
2021); Green Hills Dev. Co., LLC v. Credit Union Liquidity Servs., LLC, No. 3:11-cv-
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1885-L-BN, Dkt. No. 373 at 2 (N.D. Tex. Dec. 1, 2016) (following Brown v. Bridges,
No. 3:12-cv-4947-P, 2015 WL 410062, at *1-*4 (N.D. Tex. Jan. 30, 2015)).
Under this authority and for the reasons explained below, the Court grants in
part and denies in part the MPO.
Legal Standards
“Courts have broad authority to govern the conduct of counsel and parties in
FLSA collective actions … because FLSA cases present significant opportunities for
abuse, most often in the form of improper communications that undermine the
collective action process.” Williams v. Sake Hibachi Sushi & Bar, Inc., No. 3:18-cv-
517-D, 2018 WL 4539114, at *2 (N.D. Tex. Sept. 21, 2018) (cleaned up).
This is so even “before the court conditionally certifies a collective action or
authorizes a notification pursuant to [29 U.S.C. §] 216(b)” because “[d]istrict courts,
as 	part 	of 	their 	managerial 	responsibility, 	have 	‘a 	substantial 	interest 	in
communications that are mailed for single actions involving multiple parties’ and
have discretion whether to implement the section 216(b) notice procedure to facilitate
a court-authorized notice.” Vogt v. Tex. Instruments Inc., No. 3:05-cv-2244-L, 2006
WL 4660133, at *3 (N.D. Tex. Aug. 8, 2006) (quoting Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 170 (1989), then citing id. at 169).
And 	it’s 	correct 	that 	“court-authorized 	notification 	is 	discretionary, 	and
potential class members are not included as party plaintiffs in the collective action
unless 	they 	affirmatively 	opt-in, 	[and, 	so,] 	courts 	should 	not 	per 	se 	prohibit
precertification communications.” Id.
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Even so, “because [precertification] communications manifest the potential for
abuse, and courts have both the duty and broad authority to exercise control over
collective actions and to enter appropriate orders governing the conduct of counsel
and 	parties, 	courts 	should 	regulate 	such 	communications 	pursuant 	to 	their
managerial responsibility.” Id. (cleaned up).
“The court, for example, has the power to regulate communications between a
party and absent class members that are ‘misleading, coercive, or an attempt to
undermine the collective action,’ although the court’s discretion in this respect is not
unlimited.” Williams, 2018 WL 4539114, at *2 (cleaned up).
“In fact, communications that are litigation-neutral need not be restricted, and
no communications restrictions should be made without a specific record showing by
the moving party of the particular abuses by which it is threatened.” Id. (cleaned up).
And, so, “[i]n the Fifth Circuit, district courts have applied a two-part test for
determining whether to issue an order impacting a party’s speech with absent class
members”:
 	“First, the court determines whether there is a need for a restriction on
speech by evaluating whether the party’s speech is ‘misleading, coercive,
or an attempt to undermine the collective action.”
 	“Second, if such a need exists, the court then tailor[s] appropriate
injunctions and sanctions in light of First Amendment concerns.”
Id. (cleaned up).
Analysis
To start, because Plaintiffs moves for a protective order, the Court construes
the referred motion as brought under Federal Rule of Civil Procedure 26(c).
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The Court next finds unpersuasive ACT’s attempt to distinguish this case
because the Court has yet to certify a collective, and, so, “[b]ecause a collective has
not been certified and opt-in notice has not been approved, the posture here is
analogous to a precertification putative [Federal Rule of Civil Procedure] 23 class
action, where courts routinely hold that individual settlement offers are lawful and
permitted.” Dkt. No. 50 at 10-12.
For example, this FLSA action is similarly postured to Plunkett, where the
court, “following Swales v. KLLM Transp. Servs., LLC, 985 F.3d 430 (5th Cir. 2021),
authorized 	preliminary 	discovery 	necessary 	to 	determine 	whether 	to 	certify 	a
collective action and issue notice to potential plaintiffs, with a deadline of July 17,
2024 to complete pre-notice discovery and a briefing schedule for [plaintiffs’] Motion
for FLSA Certification and Notice that require[d] Plaintiffs to file their motion by
September 6, 2024,” and where, “[a] little over a month into this preliminary
discovery period, [the plaintiffs] filed [a similar] Emergency Motion for Protective
Order and Other Relief.” Plunkett v. FirstKey Homes LLC, No. 3:23-cv-2684-L-BN,
2024 WL 2331745, at *1-*2 (N.D. Tex. May 22, 2024).
And ACT resolved another preliminary matter at oral argument by backing off
its assertion that the MPO should be denied because the letter to Mr. Lewis as
attached to the MPO should not be considered competent evidence. See Dkt. No. 50
at 7. And ACT has not denied that it sent this letter to Mr. Lewis nor that it may be
one of many such letters.
So the Court has examined that letter to determine whether it counts as speech
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that is misleading, coercive, or an attempt to undermine the collective action.
It qualifies as misleading considering Williams at least because it fails “to
provide sufficient information regarding damages,” 2018 WL 4539114, at *3, as
Plaintiffs argue in the MPO, see, e.g., Dkt. No. 47 at 2-3.
The 	Court 	further 	finds 	that 	the 	letter 	is 	misleading 	considering 	the
information that is missing from it.
For example, it informed Mr. Lewis (and presumably others) that “[t]his
lawsuit asserts a single claim for unpaid overtime on behalf of a putative collective of
hostlers employed by ACT in Texas.” Dkt. No. 47-1 at 2. But, like the failure to provide
sufficient information regarding damages, this skeletal description of the claims at
issue does not provide a sufficient disclosure of what putative collective members may
be giving up by releasing their claims.
And, while ACT included in the letter that the complaint in this lawsuit could
be obtained from the “HR Manager” – and, so, it’s likely that a putative collective
member, 	if 	they 	took 	this 	step, 	could 	then 	learn 	Plaintiffs’ 	counsel’s 	contact
information – Plaintiffs would presumably argue that the human resources office is
also the entity they claim is violating the FLSA.
The letter then described the lawsuit as “likely [to] be disruptive to the
business,” a statement that does not seem to be litigation-neutral.
So, in sum, the Court finds that the communication raises enough concerns for
the Court to conclude that an order should issue and will next consider the
appropriate injunctions and sanctions that should be ordered.
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First, the Court will not, at least at this time, declare agreements obtained by
ACT “null and void,” as Plaintiffs urge, where the Court does not have before it
evidence that any former or current employee signed such an agreement. Accord
Plunkett, 2024 WL 2331745, at *8 (“Plaintiffs urge the Court to void any signed
Voluntary Statement and Acknowledgement that any former or current employee
signed. But no current plaintiff did so, and the Court has no evidence before it that
any other current or former employees want to have their own signed Voluntary
Statement and Acknowledgement voided.” (citing Williams, 2018 WL 4539114, at
*5)).
Nor will the Court, at least at this time, authorize a corrective notice. See id.
at *9 (“Plaintiffs also urge the Court to authorize issuance of a corrective notice. But
whether this case can proceed as a collective action under Section 216(b) and, if so,
what the class or classes of similarly situated members would be is not yet resolved.
The Court will instead consider the appropriateness of a curative notice if and when
the Court determines that, consistent with Swales, notice to potential opt-in plaintiffs
should issue.” (citing Ross v. Wolf Fire Prot., Inc., 799 F. Supp. 2d 518, 527 (D. Md.
2011))).
But the Court will impose what it determines to be the appropriate remedies
here by:
 	entering a protective order mandating that ACT cannot have direct
contact with potential opt-in plaintiffs regarding the substance of this
case or prior payments (or nonpayment) of overtime or send any
settlement agreements or releases or waivers of FLSA claims or any
communications like the Cover Letter and Settlement Agreement and
Release of Claims sent to Mr. Lewis at issue here [Dkt. No. 47-1];
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 	ordering that ACT must, by February 3, 2026, turn over to Plaintiffs’
counsel copies of the attachments to any signed Settlement Agreement
and Release of Claims that is sent to its current or former hostlers as
well as copies of any unsigned Settlement Agreement and Release of
Claims that ACT sent out to its current or hostlers; and
 	ordering under Federal Rule of Civil Procedure 26(c)(3) that ACT and
its counsel of record in this case (or their law firm) are required to pay,
jointly and severally, the reasonable attorneys’ fees and costs incurred
for Plaintiffs’ counsel to draft and file their Expedited Motion for
Protective 	Order 	and 	Other 	Relief 	[Dkt. 	No. 	47] 	and 	reply 	and
appendices [Dkt. No. 51] in support.
Conclusion
The Court GRANTS IN PART and DENIES IN PART Plaintiffs’ Expedited
Motion for Protective Order and Other Relief [Dkt. No. 47] as set out above.
And, so, the Court directs Plaintiffs’ counsel and ACT’s counsel to confer by
telephone or videoconference or in person about the reasonable amount of the
attorneys’ fees and costs to be awarded, as specified above.
By no later than February 3, 2026, the parties must file a joint report
notifying the Court of the results of the conference. If all disputed issues as to the
amount of attorneys’ fees and costs to be awarded to Plaintiffs have been resolved,
Plaintiffs’ 	counsel 	must 	also 	send 	an 	agreed 	proposed 	order 	to 	the 	Court 	at
Horan_Orders@txnd.uscourts.gov by February 3, 2026.
If the parties do not reach an agreement as to the amount of attorneys’ fees
and costs to be awarded, Plaintiffs’ counsel must, by no later than February 3, 2026,
file an application for attorneys’ fees and costs that is accompanied by supporting
evidence establishing the amount of the reasonable attorneys’ fees (as described
above) to be awarded. The fee application must be supported by documentation
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evidencing the “lodestar” calculation, including affidavits and detailed billing records,
and citations to relevant authorities and must set forth the itemized number of hours
expended in connection with the recoverable attorneys’ fees described above as well
as the reasonable rate(s) requested. See Tollett v. City of Kemah, 285 F.3d 357, 367
(5th Cir. 2002).
If Plaintiffs files an application, ACT must file a response by February 24,
2026, and Plaintiffs must file any reply by March 11, 2026.
SO ORDERED.
DATED: January 19, 2026
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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