Opinion
No. C 07-3993 CW.
September 3, 2008
ORDER GRANTING PLAINTIFF'S MOTIONS FOR LEAVE TO AMEND THE COMPLAINT AND FOR CONDITIONAL COLLECTIVE ACTION CERTIFICATION
Plaintiff Monte Russell moves for an order conditionally certifying this action as a representative collective action under the Fair Labor Standards Act (FLSA) and directing that notice be distributed to prospective class members. He also moves for leave to file an amended complaint. Defendant Wells Fargo Co. does not oppose the motion for leave to amend, and that motion is therefore granted. See Fed.R.Civ.P. 15(a)(2) ("The court should freely give leave [to amend] when justice so requires."). Defendant opposes conditional certification with respect to some, but not all, prospective class members. Defendant also objects to several aspects of the notice plan proposed by Plaintiff. The matter was taken under submission on the papers. Having considered all of the papers submitted by the parties, the Court grants Plaintiff's motion for conditional certification but modifies Plaintiff's proposal for the form of notice and the method of its distribution.
BACKGROUND
Plaintiff was formerly employed by Defendant in the position of PC/LAN Engineer 3 (PLE-3). He claims that Defendant unlawfully classified his position, as well as the positions of PC/LAN Engineer 4 and 5 (PLE-4 and PLE-5), as exempt from the FLSA's requirements concerning overtime compensation. He sues on behalf of himself and all individuals who served as a PLE-3, 4 or 5 and were treated as exempt at any time since November 1, 2004.
Prior to the commencement of this lawsuit in August, 2007, Defendant decided to reclassify all of its PLE-3 and PLE-4 employees as non-exempt. Plaintiff alleges that Defendant's decision was made in response to contact by Plaintiff's counsel in April, 2007 informing Defendant of Plaintiff's claim and attempting to determine whether Defendant would be willing to resolve the matter without litigation. Defendant disputes this and states that its review of the classification of the PLE-3 and PLE-4 positions began prior to contact by Plaintiff's counsel.
In any event, on July 11, 2007, Defendant sent all of its then-current employees who were working or had worked in these positions an email informing them of its decision to reclassify the positions as non-exempt. It asked these employees to complete a survey about their work hours to determine whether they were owed back pay for overtime. The employees were given two days to complete the survey. See 7/25/08 Snodgrass Dec. Ex. J. Defendant compensated those who responded for hours worked in excess of forty per week during the preceding two year period. Plaintiff claims that Defendant underpaid these employees because it used the "fluctuating work week" formula to calculate back wages in many instances, failed to pay liquidated damages and failed to pay a full three years' worth of back wages. Defendant disputes that its employees are entitled to liquidated damages or three years' worth of back wages, and contends that its use of the fluctuating work week formula was appropriate.
Defendant distributed a form entitled, "Release of All Claims for Wages," along with the payments for back wages. A representative release form submitted to the Court states that, in consideration for the payment of back wages, the recipient "hereby releases and forever discharges Wells Fargo . . . from any and all claims, demands, damages, actions and causes of action arising out of or in any way connected with payment of [redacted] compensation, salary, wages, incentive or bonus pay by Wells Fargo as a PC/LAN Engineer 4 up to the date of the signature below." 7/25/08 Snodgrass Dec. Ex. O. In addition, employees receiving payment were asked to sign a form entitled, "Payment Advice and Resolution." A representative form states, "Your signature below acknowledges the receipt of this payment [for all overtime hours reported] in the amount of [redacted] . . . and your release of any and all claims related to unpaid wages or other compensation that you now have against Wells Fargo Bank NA up through the date of your signature below."Id.
LEGAL STANDARD
The FLSA provides for a collective action where the complaining employees are "similarly situated." 29 U.S.C. § 216(b). In contrast to class actions pursuant to Rule 23 of the Federal Rules of Civil Procedure, potential members of a collective action under the FLSA must "opt in" to the suit by filing a written consent with the court in order to benefit from and be bound by a judgment. Centurioni v. City and County of San Francisco, 2008 WL 295096, at *1 (N.D. Cal.). Employees who do not opt in may subsequently bring their own action. Id.The FLSA does not define the term, "similarly situated," nor has the Ninth Circuit defined it. As noted by the Tenth Circuit, there is little circuit law defining "similarly situated."Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001). Although various approaches have been taken to determine whether plaintiffs are "similarly situated," courts in this circuit have used an ad hoc, two-step approach. See Wynn v. Nat'l Broad. Co., Inc., 234 F. Supp. 2d 1067, 1082 (C.D. Cal. 2002) (noting that the majority of courts prefer this approach);Thiessen, 267 F.3d at 1102-03 (discussing three different approaches district courts have used to determine whether potential plaintiffs are "similarly situated" and finding that the ad hoc approach is arguably the best of the three approaches); Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001) (finding the two-step approach to certification of § 216(b) opt-in classes to be an effective tool for district courts to use). Under this approach, the district court makes two determinations on an ad hoc, case-by-case basis. The court first makes an initial "notice stage" determination of whether potential opt-in plaintiffs are similarly situated to the representative plaintiffs, determining whether a collective action should be certified for the purpose of sending notice of the action to potential class members. See, e.g., Thiessen, 267 F.3d at 1102. For conditional certification at this notice stage, the court requires little more than substantial allegations, supported by declarations or discovery, that "the putative class members were together the victims of a single decision, policy, or plan." Id. The standard for certification at this stage is a lenient one that typically results in certification. Wynn, 234 F. Supp. 2d at 1082.
The second determination is made at the conclusion of discovery, usually on a motion for decertification by the defendant, utilizing a stricter standard for "similarly situated." Thiessen, 267 F.3d at 1102. During this second stage analysis, the court reviews several factors, including the disparate factual and employment settings of the individual plaintiffs; the various defenses available to the defendant which appear to be individual to each plaintiff; fairness and procedural considerations; and whether the plaintiffs made any required filings before instituting suit. Id. at 1103.
Notably, collective actions under the FLSA are not subject to the requirements of Rule 23 of the Federal Rules of Civil Procedure for certification of a class action. Id. at 1105. "The requisite showing of similarity of claims under the FLSA is considerably less stringent than the requisite showing under Rule 23 of the Federal Rules of Civil Procedure. All that need be shown by the plaintiff is that some identifiable factual or legal nexus binds together the various claims of the class members in a way that hearing the claims together promotes judicial efficiency and comports with the broad remedial policies underlying the FLSA."Wertheim v. Arizona, 1993 WL 603552, *1 (D. Ariz.) (citations omitted).
DISCUSSION
Defendant does not oppose sending notice of this action to PLE-3 and PLE-4 employees generally. However, it objects to sending notice to PLE-5 employees and to PLE-3 and PLE-4 employees who received notice of this lawsuit previously. It also objects to the method by which Plaintiff requests notice be distributed and disputes the need for "corrective" notice.
I. Notice to PLE-5 Employees
Defendant argues that PLE-5 employees are not similarly situated to Plaintiff because the responsibilities of PLE-5s differ significantly from those of PLE-3s and 4s. According to Defendant, PLE-5s are required regularly to exercise discretion and independent judgment. In support of its position, Defendant points to its decision to reclassify all PLE-3 and PLE-4 employees as non-exempt while leaving the exempt status of PLE-5 employees unchanged.
Defendant's assertions contradict the allegations in the complaint. In addition, Plaintiff has submitted five declarations from individuals who have worked as either PLE-3s or PLE-4s. The declarants state that, through their employment with Defendant, they came to know PLE-5s. One declarant who worked as a PLE-3 states that, based upon his "training, experience and discussions with other employees,"
the work of PC/LAN Engineers 3, 4, and 5 was functionally the same and did not vary significantly from location to location. PC/LAN Engineers 4 and 5 had primary duties similar to the duties of a PC/LAN Engineer 3. . . . The primary work of PC/LAN Engineers 4 and 5 was highly structured and constrained by Wells Fargo's predetermined instructions, specifications, policies, and procedures, and did not normally require consistent exercise of discretion and independent judgment.
7/25/08 Snodgrass Dec. Ex. A ¶ 8.
Defendant objects to the relevant portion of the declarations as hearsay. However, it is not apparent that the declarants' knowledge of the duties of PLE-5s is based exclusively on their co-workers' out-of-court statements.
The Court cannot resolve at this time the issue of whether the duties of PLE-5s are sufficiently individualized or distinct from those of PLE-3s and 4s so as to render them not similarly situated. Doing so would require the Court to evaluate the relative strength of the parties' evidence, which would not be appropriate at the first stage of collective action certification. This matter can be resolved after discovery on a motion for decertification. In addition, Defendant's argument against conditional certification is premised on its assertion that Plaintiff's FLSA claim on behalf of PLE-5s is meritless. This goes to the heart of the claim and is not appropriate for adjudication at this early stage.
Plaintiff has made a sufficient showing that an "identifiable factual or legal nexus binds together the various claims of the class members," Wertheim, 1993 WL 603552 at *1, including PLE-5s. Accordingly, the Court will conditionally certify a class that includes PLE-3s, 4s and 5s.
II. Need for Corrective Notice
Plaintiff asserts that the class notice should include "strongly worded corrective language" informing potential opt-in plaintiffs that they may join the action despite Defendant's "improper attempts to privately settle FLSA claims, offer partial payments of back wages, and obtain releases of FLSA claims." Pl.'s Mot. at 16. It is not clear that Defendant's offer to compensate its employees for back wages was necessarily improper or that the amount of the compensation Defendant offered was unreasonably low. However, to the extent Defendant attempted to secure a release of the FLSA claims against it, its actions were was improper. The parties agree that releases prohibiting suit under the FLSA are not valid. See O'Brien v. Encotech Const. Servs., Inc., 203 F.R.D. 346, 349 (N.D. Ill.). A plain reading of the release provided to Defendant's employees reveals that it is not limited to non-FLSA claims. Accordingly, the notice should inform potential collective action members that they may opt in to this action even if they have signed a release.
The parties dispute whether potential collective action members who signed the release should be precluded from pursuing their claims under California law. This issue is not appropriate for resolution on the present motion.
III. Additional Notice to PLE-3s and PLE-4s Who Have Already Received Notice
Earlier in these proceedings, the parties agreed to send a notice of the action to PLE-3s and PLE-4s who had not already received payment of back wages from Defendant. This group includes potential collective action members who did not receive an hours survey because they were no longer employed by Defendant at the time the survey was distributed. The notice gave recipients forty-five days to opt in to this action. Twenty-four individuals chose to opt in.
Plaintiff now asserts that the class members who were previously sent notice of the action should be provided with a second notice and given another opportunity to opt in. He claims that this second notice is necessary because, due to the limited availability of information at the time the initial notice was sent, that notice did not contain information about how Defendant's payments to certain members of the class had been calculated.
Plaintiff has not shown that the rights of the class members who received notice but did not opt in will be prejudiced if they are not given a second opportunity to do so. The new information concerning Defendant's payment of back wages is not directly relevant to these class members' claims because they did not receive any such payment. The information in the previous notice was sufficient to inform these class members of the subject of the lawsuit and enable them to make an informed decision about whether it was in their interest to join it. Therefore, notice may not be re-sent class members who received notice previously.
IV. Form of Notice
The Court has reviewed the proposed notices submitted by the parties. A revised version of the notice, incorporating aspects of each party's proposal, is attached to this order as Exhibit 1. The Court approves this version for distribution to members of the conditional class. A redlined version identifying the differences between the approved version of the notice and Plaintiff's version is attached as Exhibit 2. A seventy-five day opt-in period will apply, as agreed to by Plaintiff in his reply.
V. Method of Notice
Plaintiff asks the Court to order Defendant to provide his counsel with contact information for all putative class members so that he can provide them with the Court-approved notice. He also requests that Defendant be ordered to post the notice in work locations and distribute it through the payroll system.
The Court finds that it would be more appropriate to have a third-party claims administrator distribute the collective action notice, as was done with the first notice that was sent to some members of the putative class. Although Plaintiff correctly notes that the Court is authorized to order the production of potential class members' contact information to Plaintiff's counsel, he has not explained why it would be preferable for his counsel to oversee distribution of the notice. Contact information for Plaintiff's counsel will be contained in the notice, and potential class members may contact counsel if they wish. In addition, Defendant has agreed to pay for the costs of a third-party administrator, and thus having notice provided through such an administrator will not entail additional cost to Plaintiff.
The Court expresses no opinion as to whether this contact information may be independently subject to production during discovery. Plaintiff's argument that such information is relevant to developing his claims is more appropriately addressed in the context of a discovery motion; it is not relevant to the issue of notice.
The Court also finds that providing notice by first class mail will be sufficient to assure that potential collective action members receive actual notice of this case. See Adams v. Inter-Con Sec. Systems, Inc., 242 F.R.D. 530, 541 (N.D. Cal. 2007) ("First class mail is ordinarily sufficient to notify class members who have been identified."). Plaintiff's only argument to the contrary is based on his conjecture that Defendant's database may not have the most up-to-date contact information for class members. Defendant, however, is unlikely to have obsolete contact information for its current employees, and posting notice in the workplace or distributing it via the payroll system will do nothing to notify those class members who are no longer employed by Defendant. Therefore, Plaintiff's request for an order requiring Defendant to post the notice in work locations and to distribute the notice through the payroll system is denied.
CONCLUSION
For the reasons set forth above, the Court GRANTS Plaintiff's motion for leave to amend the complaint and GRANTS his motion for conditional certification of a collective action on behalf of all current or former employees of Defendant's who held the position of PC/LAN Engineer 3, PC/LAN Engineer 4 or PC/LAN Engineer 5, who were paid a salary, and who were treated as exempt from the laws requiring overtime for some period of time after November 1, 2004 through the date of final disposition of this action. Defendant shall, within ten days of the date of this order, produce to a mutually agreed-upon third-party administrator the names, addresses, alternate addresses, social security numbers and telephone numbers of all prospective members of the class. Notice will proceed as detailed in this order.
To the extent the Court relied upon evidence to which Defendant objected, the objections are overruled. To the extent the Court did not rely on such evidence, Defendant's objections are overruled as moot.
IT IS SO ORDERED.NOTIFICATION OF COLLECTIVE ACTION IMPORTANT NOTIFICATION TO POTENTIAL MEMBERS OF COLLECTIVE ACTION THIS IS NOT A LAWSUIT AGAINST YOU. PLEASE READ THIS NOTICE CAREFULLY. YOUR LEGAL RIGHTS MAY BE AFFECTED. PC/LAN Engineer 3, PC/LAN Engineer 4, or PC/LAN Engineer 5. TO: Current and former employees of Wells Fargo Company and Wells Fargo Bank, N.A. ("Wells Fargo"), who held the position of THE RECIPIENTS OF THIS NOTICE INCLUDE CURRENT AND FORMER EMPLOYEES WHO HAVE RECEIVED A PAYMENT OF PAST WAGES DUE FROM WELLS FARGO. THESE INDIVIDUALS MAY BE ENTITLED TO AN ADDITIONAL PAYMENT. RE: YOUR RIGHT TO JOIN A CURRENTLY PENDING LAWSUIT TO RECOVER UNPAID WAGES DATE: _______________, 2008
I. PURPOSE OF NOTICE
The purpose of this Notice is to:
(1) inform you of the existence of a collective action lawsuit in which you are potentially eligible to participate because you may be "similarly situated" to the former Wells Fargo employees who brought the lawsuit,
(2) advise you of how your rights may be affected by this lawsuit,
(3) instruct you on the procedure for participating in this lawsuit if you so desire, and
(4) provide notice that you may still participate in this lawsuit even if you previously accepted a payment of back wages from Wells Fargo and that you may be entitled to additional back wages from Wells Fargo.
As described more fully below, if you are eligible and wish to participate in the collective action, you must complete and submit the Consent to Join form attached to this Notice.
II. DESCRIPTION OF THE LAWSUIT
A. THE ALLEGATIONS
Plaintiffs Monte Russell and Daniel Friedman ("Named Plaintiffs") brought this lawsuit in the United States District Court for the Northern District of California, Oakland Division, against Wells Fargo on August 2, 2007. The Named Plaintiffs contend that Wells Fargo incorrectly classified PC/LAN Engineers 3, PC/LAN Engineers 4, and PC/LAN Engineers 5 as "exempt" from federal overtime laws. The Named Plaintiffs, former Wells Fargo employees, bring their claims under the Fair Labor Standards Act ("FLSA"). The Named Plaintiffs seek overtime compensation at a rate of one and one-half (1.5) times the regular rate of pay for all hours worked over 40, liquidated or "doubled" damages, attorneys' fees and costs under the FLSA.
B. WELLS FARGO'S POSITION
Wells Fargo generally denies all of the Named Plaintiffs' claims and does not admit any liability. Wells Fargo generally claims that PC/LAN Engineers 3, 4, and 5 were exempt from overtime. Wells Fargo also contends that, to the extent there was any violation of the FLSA, it was an innocent error, that all actions were taken in good faith, and that reasonable minds could differ as to the proper classification of PC/LAN Engineers 3, 4, and 5 as either exempt or non-exempt from the laws requiring payment of overtime such that there is no basis to award liquidated damages.
C. THE CURRENT STAGE OF THE LAWSUIT
This lawsuit is currently in the early pretrial stage. On __________, the Court authorized this Notice to be sent to you so that you might have the option to join this lawsuit.
III. BACKGROUND ON THE FAIR LABOR STANDARDS ACT CLAIM
A. COMPOSITION OF THE FLSA COLLECTIVE ACTION
The Named Plaintiffs seek to sue on behalf of themselves and all other similarly situated persons who are/were employed by Wells Fargo as a PC/LAN Engineer 3, PC/LAN Engineer 4, or PC/LAN Engineer 5, and who were paid a salary and treated as exempt from the laws requiring overtime at any time after November 1, 2004.
If you never worked over 40 hours in any one week while you were employed by Wells Fargo as PC/LAN Engineer 3, 4 and/or 5, you are not eligible to join this lawsuit. However, if you have a good faith belief that you worked over 40 hours in any one week or are unsure whether you worked over 40 hours in any one week while you were employed by Wells Fargo as PC/LAN Engineer 3, 4, and/or 5, you are eligible to join this lawsuit. You are eligible to join if you fit in the definition above even if you received a payment of back wages from Wells Fargo.
B. YOUR RIGHT TO PARTICIPATE IN THE FLSA COLLECTIVE ACTION
If you fit the definition in Paragraph III.A. above, you may join in the FLSA claim raised in this lawsuit by completing and mailing a signed copy of the "Consent to Join" form (attached to this Notice) to the Notice Administrator in the enclosed envelope. Your Consent to Join form must be postmarked by no later than _______, 2008. The Notice Administrator will file with the Court all Consent to Join forms that have been filled out, signed, and postmarked on or before _____, 2008. Having a Consent to Join form filed does not guarantee that you will be able to participate in a mediation or trial of this lawsuit, because your ability to participate might ultimately depend upon a final ruling from the Court that you and the Named Plaintiffs are "similarly situated" under federal law. If you fail to complete and mail a Consent to Join form postmarked on or before the deadline, you cannot participate in any monetary settlement or judgment resulting from this lawsuit.
C. YOU HAVE A RIGHT TO PARTICIPATE IN THE FLSA COLLECTIVE ACTION EVEN IF WELLS FARGO PREVIOUSLY PAID YOU BACK WAGES
IF YOU RECEIVED A PAYMENT FROM WELLS FARGO FOR PAST OVERTIME HOURS WORKED OR OTHER UNPAID WAGES, YOU STILL MAY STILL PARTICIPATE IN THIS FLSA COLLECTIVE ACTION. Wells Fargo has paid sums of money to certain PC/LAN Engineers who reported that they worked overtime hours during the time their positions were classified as "exempt." These PC/LAN Engineers may be entitled to additional sums of money under the FLSA.
Some of the PC/LAN Engineers who received sums of money signed a form entitled "Payment Advice and Resolution" or other similar release. These forms suggest that the person signing it agreed to release any and all legal claims related to unpaid wages or other compensation. A release of an employee's rights under the FLSA is not valid. You may still participate in this lawsuit if you received a sum of money from Wells Fargo and/or signed a purported release. You may contact class counsel if you have any questions related to a payment of, or offer to pay, back wages by Wells Fargo.
D. EFFECT OF JOINING THE FLSA COLLECTIVE ACTION
If you submit a Consent to Join form and the Court permits the Named Plaintiffs to represent your claims at trial as part of a collective action, you will be bound by any judgment regarding the claims in the lawsuit, whether favorable or unfavorable to the Named Plaintiffs and the class. By returning the Consent to Join form, you are agreeing to designate the Named Plaintiffs as your agents to make decisions on your behalf concerning this lawsuit, including decisions as to the method and manner of conducting this lawsuit. While this lawsuit is pending, you might be required to provide information, appear for a deposition in your hometown, or otherwise participate in the action.
If you submit a Consent to Join form and "opt-in" to this lawsuit, you will not be required to pay attorneys' fees or expenses. If the Named Plaintiffs prevail at trial, the FLSA provides for the recovery of attorneys' fees, and attorneys' fees will be paid either by Wells Fargo or as a percentage of any monetary judgment in favor of the Named Plaintiffs as ordered by the Court. If the lawsuit settles by mutual agreement of the parties, the Named Plaintiffs' counsel will receive attorneys' fees paid either by Wells Fargo or as a percentage of the settlement obtained. Any settlement must be approved by the Court.
E. EFFECT OF NOT JOINING THE FLSA COLLECTIVE ACTION
If you choose not to join in this FLSA lawsuit, you will not be affected by any judgment on the FLSA claim, whether it is favorable or unfavorable to the Named Plaintiffs and the class. If you choose not to file a Consent to Join this FLSA lawsuit, you are free to file your own lawsuit.
IV. NO RETALIATION PERMITTED
FEDERAL LAW PROHIBITS WELLS FARGO FROM TAKING ANY ACTION AGAINST YOU BECAUSE YOU ELECT TO JOIN THIS ACTION BY FILLING OUT AND RETURNING THE CONSENT TO JOIN FORM, OR OTHERWISE EXERCISE YOUR RIGHTS UNDER THE FLSA.
V. CLASS COUNSEL: THE ATTORNEYS REPRESENTING THE EMPLOYEES OF WELLS FARGO (THE NAMED PLAINTIFFS AND THE CLASS)
T. Joseph Snodgrass William M. Audet Kelly A. Swanson Adel Nadji Larson King, LLP Audet Partners, LLP 2800 Wells Fargo Place 221 Main Street, Suite 1460 30 East Seventh Street San Francisco, California 94105 St. Paul, MN 55101 1-877-373-5501 (651) 312-6500 kswanson@larsonking.comVI. THE ATTORNEYS REPRESENTING WELLS FARGO
Glenn L. BriggsTheresa A. Kading
Hodel Briggs Winter, LLP
8105 Irvine Center Drive, Suite 1400
Irvine, CA 92618
Telephone: (949) 450-8040
VII. FURTHER INFORMATION
To obtain further information about this Notice, the deadline for filing a Consent to Join form, or other information about this lawsuit, please contact the Named Plaintiffs' attorneys, toll free, at 1-877-373-5501, and ask for Pat Nally.
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE FOR INFORMATION.
THIS NOTICE AND ITS CONTENTS HAVE BEEN AUTHORIZED BY THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION. ALTHOUGH THE COURT HAS AUTHORIZED THE SENDING OF THIS NOTICE, THIS DOES NOT MEAN THAT THE COURT WILL FIND IN FAVOR OF ANY PLAINTIFF OR GRANT ANY RELIEF.
FILING INSTRUCTIONS
Consent to Join
If you choose to join in the FLSA claim, your Consent to Join form must be completed, signed and returned in the Business Reply Envelope included with this packet.
* * * Your Consent to Join form must be postmarked by no later than, 2008. * * *
1. CHANGE OF ADDRESS
2. FURTHER INFORMATION
If you move or change your address, please advise the Notice Administrator:
[Notice Administrator's contact information.]
To obtain further information about this lawsuit including your right to "opt-in," please contact class counsel:
T. Joseph Snodgrass
Attn: Kelly Swanson
Larson King, LLP
2800 Wells Fargo Place
30 East Seventh Street
St. Paul, MN 55101
1-877-373-5501
(651) 312-6500
Kswanson@larsonking.comCONSENT TO JOIN FORM IF YOU WISH TO JOIN THE FLSA COLLECTIVE ACTION, THIS FORM MUST BE COMPLETED, SIGNED AND RETURNED WITH A POSTMARK ON OR BEFORE _______________, 2008 Please type or print in ink the following: 1. I understand that this lawsuit includes a claim under the federal Fair Labor Standards Act. I have read and I understand the Notice of Collective Action that accompanied my copy of this Consent. I hereby consent to become a member of this collective action and consent to be bound by any adjudication by the Court regarding the Fair Labor Standards Act in this lawsuit. 2. I hereby authorize the Notice Administrator to file this Consent on my behalf with the Clerk of the United States District Court for the Northern District of California, Oakland Division. 3. By my signature below, I represent to the Court that I have been employed by Wells Fargo Company and/or Wells Fargo Bank, N.A., as a PC/LAN Engineer 3, PC/LAN Engineer 4, and/or PC/LAN Engineer 5, at some time after November 1, 2004. I further represent that I have a good faith belief that I worked over 40 hours in any one workweek, or that I am unsure whether I worked over 40 hours in any one workweek, while I was employed by Wells Fargo as PC/LAN Engineer 3, PC/LAN Engineer 4, and/or PC/LAN Engineer 5. My signature below further indicates that I want to become a member of this collective action: COMPLETE AND RETURN THIS FORM IN THE BUSINESS REPLY ENVELOPE INCLUDED WITH THIS PACKET TO: Name:* Street and Apartment Number, if any:* City:* State:* Zip Code:* Home Telephone:* Work Telephone: Cell Telephone E-Mail: Name and Phone Number of Alternative Contact Person: Social Security Number (this information will be kept confidential; contact class counsel if you have any questions or concerns): * Denotes required field. Information obtained will be filed with the Court. The Notice Administrator will use the information obtained solely for the purposes of prosecuting this lawsuit. Social Security Numbers will be kept confidential. Contact class counsel if you have any questions or concerns. __________________________________________________________________________________________________ Signature: Date: __________________________________________________________________________________________________ [Notice Administrator's address] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION MONTE RUSSELL and DANIEL FRIEDMAN, on behalf of themselves and others similarly situated, Case No.: C 07-3993 CW Plaintiffs, v. NOTIFICATION OF COLLECTIVE ACTION WELLS FARGO AND COMPANY and WELLS FARGO BANK, N.A., Defendants. IMPORTANT NOTIFICATION TO POTENTIAL MEMBERS OF COLLECTIVE ACTION THIS IS NOT A LAWSUIT AGAINST YOU. PLEASE READ THIS NOTICE CAREFULLY. YOUR LEGAL RIGHTS MAY BE AFFECTED. PC/LAN Engineer 3, PC/LAN Engineer 4, or PC/LAN Engineer 5. THE RECIPIENTS OF THESE INDIVIDUALS MAY BE ENTITLED TO AN ADDITIONAL PAYMENT TO: Current and former employees of Wells Fargo Company and Wells Fargo Bank, N.A. ("Wells Fargo"), who held the position of THIS NOTICE INCLUDE CURRENT AND FORMER EMPLOYEES WHO HAVE RECEIVED A PAYMENT OF PAST WAGES DUE FROM WELLS FARGO. . RE: YOUR RIGHT TO JOIN A CURRENTLY PENDING LAWSUIT TO RECOVER UNPAID WAGES DATE: __________, 2008
I. PURPOSE OF NOTICE
The purpose of this Notice is to:
(1) inform you of the existence of a collective action lawsuit in which you are potentially eligible to participate because you may be "similarly situated" to the former Wells Fargo employees who brought the lawsuit,
(2) advise you of how your rights may be affected by this lawsuit,
(3) instruct you on the procedure for participating in this lawsuit if you so desire, and
(4) provide notice that you may still participate in this lawsuit even if you previously accepted a payment of back wages from Wells Fargo and that you may be entitled to additional back wages from Wells Fargo.
As described more fully below, if you are eligible and wish to participate in the collective action, you must complete and submit the Consent to Join form attached to this Notice.
II. DESCRIPTION OF THE LAWSUIT
A. THE ALLEGATIONS
Plaintiffs Monte Russell and Daniel Friedman ("Named Plaintiffs") brought this lawsuit in the United States District Court for the Northern District of California, Oakland Division, against Wells Fargo on August 2, 2007. The Named Plaintiffs contend that Wells Fargo incorrectly classified PC/LAN Engineers 3, PC/LAN Engineers 4, and PC/LAN Engineers 5 as "exempt" from federal overtime laws. The Named Plaintiffs, former Wells Fargo employees, bring their claims under the Fair Labor Standards Act ("FLSA"). The Named Plaintiffs seek overtime compensation at a rate of one and one-half (1.5) times the regular rate of pay for all hours worked over 40, liquidated or "doubled" damages, attorneys' fees and costs under the FLSA.
B. WELLS FARGO'S POSITION
Wells Fargo generally denies all of the Named Plaintiffs' claims and does not admit any liability. Wells Fargo generally claims that PC/LAN Engineers 3, 4, and 5 were exempt from overtime. Wells Fargo also contends that, to the extent there was any violation of the FLSA, it was an innocent error, that all actions were taken in good faith, and that reasonable minds could differ as to the proper classification of PC/LAN Engineers 3, 4, and 5 as either exempt or non-exempt from the laws requiring payment of overtime such that there is no basis to award liquidated damages.
C. THE CURRENT STAGE OF THE LAWSUIT
This lawsuit is currently in the early pretrial stage. On _____, the Court authorized this Notice to be sent to you so that you might have the option to join this lawsuit.
III. BACKGROUND ON THE FAIR LABOR STANDARDS ACT CLAIM
A. COMPOSITION OF THE FLSA COLLECTIVE ACTION
The Named Plaintiffs seek to sue on behalf of themselves and all other similarly situated persons who are/were employed by Wells Fargo as a PC/LAN Engineer 3, PC/LAN Engineer 4, or PC/LAN Engineer 5, and who were paid a salary and treated as exempt from the laws requiring overtime at any time after November 1, 2004.
If you never worked over 40 hours in any one week while you were employed by Wells Fargo as PC/LAN Engineer 3, 4 and/or 5, you are not eligible to join this lawsuit. However, if you have a good faith belief that you worked over 40 hours in any one week or are unsure whether you worked over 40 hours in any one week while you were employed by Wells Fargo as PC/LAN Engineer 3, 4, and/or 5, you are eligible to join this lawsuit. You are eligible to join if you fit in the definition above even if you received a payment of back wages from Wells Fargo.
B. YOUR RIGHT TO PARTICIPATE IN THE FLSA COLLECTIVE ACTION
If you fit the definition in Paragraph III.A. above, you may join in the FLSA claim raised in this lawsuit by completing and mailing a signed copy of the "Consent to Join" form (attached to this Notice) to the Notice Administrator in the enclosed envelope. Your Consent to Join form must be postmarked by no later than _____, 2008. The Notice Administrator will file with the Court all Consent to Join forms that have been filled out, signed, and postmarked on or before _____, 2008. Having a Consent to Join form filed does not guarantee that you will be able to participate in a mediation or trial of this lawsuit, because your ability to participate might ultimately depend upon a final ruling from the Court that you and the Named Plaintiffs are "similarly situated" under federal law. If you fail to complete and mail a Consent to Join form postmarked on or before the deadline, you cannot participate in any monetary settlement or judgment resulting from this lawsuit.
C. YOU HAVE A RIGHT TO PARTICIPATE IN THE FLSA COLLECTIVE ACTION EVEN IF WELLS FARGO PREVIOUSLY PAID YOU BACK WAGES
IF YOU RECEIVED A PAYMENT FROM WELLS FARGO FOR PAST OVERTIME HOURS WORKED OR OTHER UNPAID WAGES, YOU STILL MAY STILL PARTICIPATE IN THIS FLSA COLLECTIVE ACTION. Wells Fargo has paid sums of money to certain PC/LAN Engineers who reported that they worked overtime hours during the time their positions were classified as "exempt." These PC/LAN Engineers may be entitled to additional sums of money under the FLSA.
Some of the PC/LAN Engineers who received sums of money signed a form entitled "Payment Advice and Resolution" or other similar release. These forms suggest that the person signing it agreed to release any and all legal claims related to unpaid wages or other compensation. A release of an employee's rights under the FLSA is not valid. You may still participate in this lawsuit if you received a sum of money from Wells Fargo and/or signed a purported release. You may contact class counsel if you have any questions related to a payment of, or offer to pay, back wages by Wells Fargo.
D. EFFECT OF JOINING THE FLSA COLLECTIVE ACTION
If you submit a Consent to Join form and the Court permits the Named Plaintiffs to represent your claims at trial as part of a collective action, you will be bound by any judgment regarding the claims in the lawsuit, whether favorable or unfavorable to the Named Plaintiffs and the class. By returning the Consent to Join form, you are agreeing to designate the Named Plaintiffs as your agents to make decisions on your behalf concerning this lawsuit, including decisions as to the method and manner of conducting this lawsuit. While this lawsuit is pending, you might be required to provide information, appear for a deposition in your hometown, or otherwise participate in the action.
If you submit a Consent to Join form and "opt-in" to this lawsuit, you will not be required to pay attorneys' fees or expenses. If the Named Plaintiffs prevail at trial, the FLSA provides for the recovery of attorneys' fees, and attorneys' fees will be paid either by Wells Fargo or as a percentage of any monetary judgment in favor of the Named Plaintiffs as ordered by the Court. If the lawsuit settles by mutual agreement of the parties, the Named Plaintiffs' counsel will receive attorneys' fees paid either by Wells Fargo or as a percentage of the settlement obtained. Any settlement must be approved by the Court.
E. EFFECT OF NOT JOINING THE FLSA COLLECTIVE ACTION.
If you choose not to join in this FLSA lawsuit, you will not be affected by any judgment on the FLSA claim, whether it is favorable or unfavorable to the Named Plaintiffs and the class. If you choose not to file a Consent to Join this FLSA lawsuit, you are free to file your own lawsuit.
IV. NO RETALIATION PERMITTED
FEDERAL LAW PROHIBITS WELLS FARGO FROM TAKING ANY ACTION AGAINST YOU BECAUSE YOU ELECT TO JOIN THIS ACTION BY FILLING OUT AND RETURNING THE CONSENT TO JOIN FORM, OR OTHERWISE EXERCISE YOUR RIGHTS UNDER THE FLSA.
V. CLASS COUNSEL: THE ATTORNEYS REPRESENTING THE EMPLOYEES OF WELLS FARGO (THE NAMED PLAINTIFFS AND THE CLASS)
T. Joseph Snodgrass William M. Audet Kelly A. Swanson Adel Nadji Larson King, LLP Audet Partners, LLP 2800 Wells Fargo Place 221 Main Street, Suite 1460 30 East Seventh Street San Francisco, California 94105 St. Paul, MN 55101 1-877-373-5501 (651) 312-6500 kswanson@larsonking.comVI. THE ATTORNEYS REPRESENTING WELLS FARGO
Glenn L. BriggsTheresa A. Kading
Hodel Briggs Winter, LLP
8105 Irvine Center Drive, Suite 1400
Irvine, CA 92618
Telephone: (949) 450-8040
VII. FURTHER INFORMATION
To obtain further information about this Notice, the deadline for filing a Consent to Join form, or other information about this lawsuit, please contact the Named Plaintiffs' attorneys, toll free, at 1-877-373-5501, and ask for Pat Nally.
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE FOR INFORMATION.
THIS NOTICE AND ITS CONTENTS HAVE BEEN AUTHORIZED BY THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION. ALTHOUGH THE COURT HAS AUTHORIZED THE SENDING OF THIS NOTICE, THIS DOES NOT MEAN THAT THE COURT WILL FIND IN FAVOR OF ANY PLAINTIFF OR GRANT ANY RELIEF.
FILING INSTRUCTIONS
Consent to Join
If you choose to join in the FLSA claim, your Consent to Join form must be completed, signed and returned in the Business Reply Envelope included with this packet.
* * * Your Consent to Join form must be postmarked by no later than, 2008. * * *
1. CHANGE OF ADDRESS
2. FURTHER INFORMATION
If you move or change your address, please advise the Notice Administrator:
[Notice Administrator's contact information.]
To obtain further information about this lawsuit including your right to "opt-in," please contact class counsel:
T. Joseph Snodgrass
Attn: Kelly Swanson
Larson King, LLP
2800 Wells Fargo Place
30 East Seventh Street
St. Paul, MN 55101
1-877-373-5501
(651) 312-6500
kswanson@larsonking.comCONSENT TO JOIN FORM IF YOU WISH TO JOIN THE FLSA COLLECTIVE ACTION, THIS FORM MUST BE COMPLETED, SIGNED AND RETURNED WITH A POSTMARK ON OR BEFORE __________, 2008 Please type or print in ink the following: The Notice Administrator the Notice Administrator Name:* Street and Apartment Number, if any:* City:* State:* Zip Code:* Home Telephone:* Work Telephone: Cell Telephone E-Mail: Name and Phone Number of Alternative Contact Person: Social Security Number (this information will be kept confidential; contact class counsel if you have any questions or concerns): * Denotes required field. Information obtained will be filed with the Court. will use the information obtained solely for the purposes of prosecuting this lawsuit. Social Security Numbers will be kept confidential. Contact class counsel if you have any questions or concerns. 1. I understand that this lawsuit includes a claim under the federal Fair Labor Standards Act. I have read and I understand the Notice of Collective Action that accompanied my copy of this Consent. I hereby consent to become a member of this collective action and consent to be bound by any adjudication by the Court regarding the Fair Labor Standards Act in this lawsuit. 2. I hereby authorize to file this Consent on my behalf with the Clerk of the United States District Court for the Northern District of California, Oakland Division. 3. By my signature below, I represent to the Court that I have been employed by Wells Fargo Company and/or Wells Fargo Bank, N.A., as a PC/LAN Engineer 3, PC/LAN Engineer 4, and/or PC/LAN Engineer 5, at some time after November 1, 2004. I further represent that I have a good faith belief that I worked over 40 hours in any one workweek, or that I am unsure whether I worked over 40 hours in any one workweek, while I was employed by Wells Fargo as PC/LAN Engineer 3, PC/LAN Engineer 4, and/or PC/LAN Engineer 5. My signature below further indicates that I want to become a member of this collective action: __________________________________________________________________________________________________ Signature: Date: __________________________________________________________________________________________________ COMPLETE AND RETURN THIS FORM IN THE BUSINESS REPLY ENVELOPE INCLUDED WITH THIS PACKET TO: [Notice Administrator's address]