Opinion
04-CV-6541L.
January 10, 2008
ORDER
The following matters having come before the Court with the assent of the parties on the subjects addressed below, it is hereby ORDERED as follows:
Defendant NVR, Inc. ("NVR") shall provide the names and last known mailing addresses of the members of the class that the Court conditionally certified pursuant to 29 U.S.C. § 216(b) on June 14, 2007 (the "Putative Class') to counsel for Plaintiffs, Dolin, Thomas Solomon LLP ("DTS") on or before January 25, 2008. NVR shall provide this information to DTS by email in an MS Excel spreadsheet or in any other format agreed to by the parties.
Within three (3) business days of its receipt of the information provided by NVR pursuant to the preceding paragraph, DTS shall send by First Class U.S. Mail, in an unmarked envelope bearing only the name and address of the addressee and the return address for DTS, one (1) copy of the notice and opt-in form attached hereto as Exhibit A ("the "Notice") to each member of the Putative Class at the address provided by NVR, and a postage pre-paid return envelope addressed to DTS. DTS shall include no additional materials in this mailing to members of the Putative Class.
Members of the Putative Class who have not joined the action as of the date of this Order shall be allowed to file consents to join this action provided they have deposited their consents in the U.S. Mail on or before March 28, 2008 (the "Opt-in Period"). The postmark date shall serve as presumptive proof of the date of deposit. Members of the Putative Class who have not mailed consents to join this action on or before March 28, 2008 shall not be allowed to participate in this action, unless the Court so orders, or the parties stipulate to allowing additional individuals joining the action after the Opt-in Period has closed.
After receipt of the names and last known mailing addresses of the members of the class that the Court conditionally certified, DTS may conduct internet-based research to determine other possible valid addresses for the addressees. DTS shall not attempt to telephone, email or otherwise contact members of the Putative Class in attempting to verify such addresses.
During the Opt-in Period, DTS may skip-trace the addresses of the names provided by NVR. If it comes across an address it believes may be a more current address of a Putative Class member, it may mail by First Class U.S. Mail to that address one (1) additional copy of the Notice (in the form and manner specified for the original Notice), and a postage pre-aid return envelope addressed to DTS, and nothing else, and inform NVR of that new address and that a mailing was made to that new address. However, it may not provide multiple mailings to any address.
IT IS SO ORDERED.EXHIBIT "A" PATRICK TRACY on behalf of himself and all other employees similarly situated versus NVR, Inc. ("NVR") 04-CV-6541 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK OFFICIAL COURT NOTICE PLEASE READ CAREFULLY INSTRUCTIONS ARE LISTED ON THE REVERSE SIDE. PLEASE READ THEM ALL CAREFULLY.
Why is this notice being sent?
United States District Judge David G. Larimer has ruled that current and former Sales and Marketing Representatives ("SMRs") who work or worked for NVR, Inc. will be allowed to join a lawsuit pending against the Company in the U.S. District Court for the Western District of New York. This Court has expressed no view of the legal merits of the case at this stage of the lawsuit. There will be a later phase of the lawsuit when the Court will decide whether to allow the case to proceed to trial as a class or collective action. The Court will also determine whether or not SMRs are exempt from the federal Fair Labor Standards Act,Any other letters, brochures, or notifications that you may have received from Plaintiffs' counsel regarding this litigation were not authorized by the Court. The parties dispute the accuracy of the information in such notices.
Why is there a lawsuit?
The plaintiff in this case claims that SMRs were improperly classified as exempt employees by NVR, and thus improperly denied overtime compensation. NVR has vigorously defended these claims, maintaining that its SMRs are properly classified as commissioned outside sales employees who are not subject to the minimum wage or maximum hours requirements of the statute.
What happens if I join the lawsuit?
If it is determined that you should have been and were not paid overtime for hours you worked over 40 in a week, the Court will award you damages. If it is determined that you were properly classified as exempt, you will not be entitled to damages, and you will be foreclosed from asserting the same overtime claims against the Company under federal law. While this lawsuit is proceeding, you may be required to assist your attorney, answer written questions under oath, produce documents, sit for depositions and/or testify in court.
What if I do not join the lawsuit?
You can receive no recovery in this lawsuit if you do not join. However, you are under no obligation to join. If you do not join this lawsuit, you will retain the right to assert a claim for overtime pay against NVR in another proceeding.
How quickly must I act to join the lawsuit?
To participate in this lawsuit, you must file a written consent to join the litigation on or before [63 days after notice is mailed]. The statute of limitations will continue to run until you file a consent to join the litigation. Every day that passes in which you do not join the lawsuit potentially reduces any damages you might receive.
How do I join the lawsuit?
You may join the lawsuit as a plaintiff by completing both of the enclosed forms (the informational sheet and the consent form) and returning them to the lawyers for the current plaintiff in the enclosed postage paid envelope. You may also select another lawyer of your choosing to represent you in this matter at your own expense. If you wish, you may contact the lawyers for the current plaintiff listed below.www.nvrclassaction.com Do not contact the Court about this matter. The attorneys you retain will answer your questions.
NVR, Inc, Class Action Lawsuit Dolin, Thomas Solomon LLP 693 East Avenue Rochester, New York 14607 Tel: (585) 272-0540 Fax: (585) 272-0574 E-mail: info@nvrclassaction.com Web: Federal law prohibits NVR from taking any action against you, including current employees, for joining this lawsuit. However, you do not have to participate in this lawsuit if you do not wish to. UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK PATRICK TRACY, et al., on behalf of themselves and all other employees similarly situated,, Plaintiff, — against — No. 04-CV-06541 DGL(P) NVR, INC., Defendant.