Deane v. Fastenal Company

Filing 56

ORDER approving recommendation as to form of Opt-in members (tf, COURT STAFF) (Filed on 12/19/2011)

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EVAN R. MOSES (CA State Bar No. 198099)
[e-mail]
ERICA K. ROCUSH (CA State Bar No. 262354)
[e-mail]
A. CRAIG CLELAND (Pro Hac Vice)
[e-mail]
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
Steuart Tower, Suite 1300
One Market Plaza
San Francisco, CA 94105
Telephone:
415.442.4810
Facsimile:
415.442.4870

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KRISTOPHER DEANE, and MICHAEL
ROMANO, individually, and on behalf of all
others similarly situated,
Plaintiff,

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R NIA

Case No. CV11-0042 SI (DMR)
JOINT RECOMMENDATION AS TO
FORM OF NOTICE FOR FLSA OPT-IN
MEMBERS
Complaint Filed: January 4, 2011
Trial Date:
None

vs.

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C

SAN FRANCISCO DIVISION

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D IS T IC T
R

OF

NORTHERN DISTRICT OF CALIFORNIA

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N

UNITED STATES DISTRICT COURT

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ER

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Attorneys for Representative Plaintiffs
and the Plaintiff Classes

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NO

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FO

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LI

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A

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RT
U
O

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SCOTT EDWARD COLE (CA State Bar No. 160744)
S DISTRICT
[e-mail]
TE
C
MOLLY A. DESARIO (CA State Bar No. 230763) TA
[e-mail]
HANNAH R. SALASSI (CA State Bar No. 230117)
[e-mail]
VED
APPRO
SCOTT COLE & ASSOCIATES, APC
1970 Broadway, Ninth Floor
Oakland, CA 94612
Telephone:
510.891.9800
n
an Illsto
Facsimile:
510.891.7030
dge Sus
Ju

S

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Attorneys for Defendant
FASTENAL COMPANY

UNIT
ED

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FASTENAL COMPANY,
Defendants.

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11389060_1.DOC

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Case No. CV11-0042 SI(DMR)
JOINT SUBMISSION OF PROPOSED FLSA CLASS NOTICE

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Pursuant to the Court’s Order Granting Conditional Collective Action Certification dated
November 14, 2011, Plaintiffs Kristopher Deane and Michael Romano, and Defendant Fastenal
Company, hereby submit, as Exhibit A hereto, their joint recommendation as to the form of notice
to be sent to putative FLSA collective action opt-in members, to be processed through a third party
administrator.

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DATED: December 2, 2011

OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, P.C.

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By:
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/s/ Erica Rocush
A. CRAIG CLELAND
EVAN R. MOSES
ERICA ROCUSH
Attorneys for Defendant
FASTENAL COMPANY

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DATED: December 2, 2011

SCOTT COLE & ASSOCIATES, APC

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By:
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/s/ Hannah R. Salassi
SCOTT EDWARD COLE
MOLLY A. DESARIO
HANNAH R. SALASSI
Attorneys for Representative Plaintiffs and the
Plaintiff Classes

11389060.1 (OGLETREE)

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11389060_1.DOC

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Case No. CV11-0042 SI(DMR)
JOINT SUBMISSION OF PROPOSED FLSA CLASS NOTICE

Exhibit A

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OFFICIAL COURT-ORDERED NOTICE

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KRISTOPHER DEANE and MICHAEL
ROMANO, individually, and on behalf of all
others similarly situated,

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Plaintiffs,

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Case No. CV11-0042 SI (DMR)

NOTICE OF RIGHT TO PARTICIPATE
IN LAWSUIT

v.

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FASTENAL COMPANY,

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Defendant.

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TO:

ALL GENERAL MANAGERS EMPLOYED BY FASTENAL FROM
NOVEMBER 12, 2008 TO THE DATE OF THIS NOTICE.

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NOTICE OF RIGHT TO PARTICIPATE IN LAWSUIT
The purpose of this Notice is to inform you of a collective-action lawsuit, alleging unpaid

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overtime wages in violation of the Fair Labor Standards Act of 1938 (FLSA). You have been

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identified as a current or former employee who worked in the position of General Manager for

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Fastenal Company from November 12, 2008, through the date of this Notice. Because this lawsuit

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could affect your legal rights, this Notice instructs you on the procedure for joining this lawsuit and

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becoming a party plaintiff, should you choose to do so.

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This Notice and its contents have been authorized by The Honorable Susan Illston, Federal

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Judge for the U.S. District Court for the Northern District of California. The federal court has

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taken no position in this case on the merits of Plaintiffs’ claims or on Fastenal Company’s

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defenses. Please do not contact the Court or the Clerk of Court about this case, and do not return

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signed Consent-to-Join forms to the Court or Clerk of Court.

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What Is This Lawsuit About?

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Two former General Managers who worked for Fastenal Company, Plaintiffs Kristopher

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Deane and Michael Romano, sued Fastenal Company in January 2011, claiming that the Company

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failed to pay them overtime wages that they were allegedly owed under federal law. The lawsuit is
Case No. CV11-0042 SI (DMR)
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NOTICE OF RIGHT TO PARTICIPATE IN LAWSUIT

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Deane, et al. v. Fastenal Company, U.S.D.C. Case No. CV11 00042 SI. Specifically, Plaintiffs

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allege that they and other General Managers worked in excess of forty hours per week without

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being paid overtime compensation as required by the FLSA. This lawsuit seeks to recover

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overtime wages, liquidated damages, and attorneys’ fees.

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Fastenal Company denies the Plaintiffs’ allegations and also denies that it is liable to them

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or any other General Managers for any damages or other relief. Specifically, Fastenal claims that

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Plaintiffs and any other General Managers are not entitled to overtime wages under the FLSA. It

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also asserts that it properly paid all its General Mangers all wages that they were lawfully owed.

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Fastenal also denies that Plaintiffs and any putative opt-ins are “similarly situated” under

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applicable law.
The Court has not yet decided who is right or wrong in this lawsuit. However, your legal
rights to participate in the lawsuit may be affected by any such decision.

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The Court has ordered this Notice so that you and other individuals besides Mr. Deane and

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Mr. Romano, who may be “similarly situated” to them, will know about your rights to join—or not

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to join—this lawsuit at your choice.

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Am I Eligible To Join This Lawsuit?

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If you are or were a General Manager who worked for Fastenal Company at any time from

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November 12, 2008, to the date of this Notice, you are eligible to join this lawsuit. If you do not

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meet these criteria, you are not eligible to join this lawsuit.

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What Happens If I Join Or Do Not Join This Lawsuit?

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If you join this lawsuit, you will become a party plaintiff, and you will be bound by any

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ruling, judgment, or settlement, whether favorable or unfavorable to you. If you join, you may be

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required to provide information, be deposed, testify in court, or any combination of these. In

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addition, if Fastenal ultimately prevails, you may be liable to pay a portion of its court costs.

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Conversely, if Plaintiffs ultimately prevail, you may be entitled to damages, penalties, and interest

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on any unpaid back wages. The law prohibits Fastenal from retaliating against you for exercising

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your right to join or not join this case. Because retaliation is also against Fastenal’s policy, if you

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believe you have been retaliated against, you should promptly contact Fastenal’s Human Resources
Case No. CV11-0042 SI (DMR)
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NOTICE OF RIGHT TO PARTICIPATE IN LAWSUIT

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Department at [phone], or Plaintiffs’ counsel at the address below.
You also have the right not to join this lawsuit. If you do not join this lawsuit, you will not

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be affected by any judgment, ruling, or settlement in this case, whether favorable or unfavorable.

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You also will not be entitled to share in any damages that may be recovered in this lawsuit, you

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will not be required to pay any court costs if Plaintiffs lose, and you are free to file you own

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lawsuit. However, your failure to join now may result in a loss of your right to damages later.

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Who Will Represent Me If I Join This Lawsuit?

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You may choose Plaintiffs’ attorneys to represent you if you choose to join this lawsuit.

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These attorneys are representing Plaintiffs and any other opt-ins who agree to their representation.

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Plaintiffs’ attorneys will represent you on a contingency fee basis. This means that if Plaintiffs and

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any opt-ins do not recover any damages or relief in this case, there will be no attorneys’ fees. If,

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however, there is a recovery and if you have elected to be represented by Plaintiffs’ counsel, then

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these lawyers will receive a part of any money judgment or settlement obtained in favor of

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Plaintiffs and any opt-ins.

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You also have the right to seek and obtain independent legal counsel to represent you if you

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join this lawsuit. Finally, you have the right to represent yourself if you join this lawsuit.

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How Do I Join This Lawsuit?

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You may join this lawsuit and become a party plaintiff by signing a consent-to-join form,

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which is attached (entitled “Consent to Join Collective (Class) Action”). To take part in the

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lawsuit, you must sign and send the attached consent form to the lawyers listed below, postmarked

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no later than 90 days from date of this Notice. Or you may fax or mail the consent form to [name

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of Third Party Administrator/address]. The enclosed return envelope is pre-addressed and

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postage-paid for your convenience. Should the enclosed consent form be lost or misplaced, please

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contact Plaintiffs’ lawyers to obtain another copy. If you have any questions, you may contact the

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Plaintiffs’ lawyers:

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Scott Edward Cole, Esq.
Molly A. DeSario, Esq.
Hannah R. Salassi, Esq.
SCOTT COLE & ASSOCIATES, APC
1970 Broadway, Ninth Floor
Case No. CV11-0042 SI (DMR)
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NOTICE OF RIGHT TO PARTICIPATE IN LAWSUIT

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Oakland, California 94612
Telephone: [phone]
Facsimile: [phone]
E-mail:[e-mail]
E-mail:[e-mail]
E-mail:[e-mail]
Web: www.scalaw.com
May I Contact Fastenal’s Attorneys?
You are also free to contact Fastenal’s attorneys if you would like to do so. You may reach
them at:
Craig Cleland, Esq.
Evan Moses, Esq.
Leslie Wallis, Esq.
Erica Rocush, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
Steuart Tower, Suite 1300
One Market Plaza
San Francisco, CA 94105
Telephone: [phone]
Facsimile: 415.442.4870
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Web: www.ogletreedeakins.com

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Dated: __________ [Month Day, Year]

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The Hon. Susan Illston
United States District Court
Northern District of California
San Francisco Division

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11389760.1 (OGLETREE)

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Case No. CV11-0042 SI (DMR)
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NOTICE OF RIGHT TO PARTICIPATE IN LAWSUIT