Gilbert v. Wells Fargo Bank, N.A.

Filing 48

ORDER Approving FLSA Notice. Signed by Judge James C. Mahan on 8/9/12. (Copies have been distributed pursuant to the NEF - MMM)

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Mark R. Thierman, NV SBN 8285
[e-mail]
Jason J. Kuller, NV SBN 12244
[e-mail]
Joshua D. Buck, NV SBN 12187
[e-mail]
THIERMAN LAW FIRM, PC
7287 Lakeside Drive
Reno, Nevada 89511
Tel. [phone]
Fax. [phone]

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Attorneys for Plaintiff ERIC GILBERT

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THIERMAN LAW FIRM, PC
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.laborlawyer.net

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ERIC GILBERT; on behalf of himself, all
others similarly situated,

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Plaintiff,

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Case No.: 2:11-cv-01841-JCM-PAL
[PROPOSED] ORDER APPROVING FLSA
NOTICE

v.

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WELLS FARGO BANK, N.A. and DOES
1-50, inclusive,
Defendant.

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The Court Orders as follows:
1.

The Court adopts the attached Notice and Consent to Join form for use in this

case that are attached as Exhibits “A” and “B” respectively.
2.

Notice of this lawsuit will be sent to: All persons employed by Wells Fargo

Bank, N.A. as Business Sales Officers, and/or any others similarly situated, from July 5, 2009
to the present.
3.

If it has not already done so, within ten (10) days of the date of this Order,

Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) will provide to a third-party administrator
of the parties' selection ("the Administrator") a list in computer-readable format of the (a) full
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name; (b) current home address or last known address; (c) telephone number; and (d) Social

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Security number of each person who falls in the definition set forth in paragraph two (2) of this

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Order. The Administrator will treat this information as confidential and will not disclose it to

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Plaintiff's counsel or other third parties, except that contact information can be disclosed to

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Plaintiff's counsel for those people who return Consent to Join forms.

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4.

Within twenty-eight (28) days of the date of this Order, the Administrator shall

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mail a Notice, a Consent to Join form, and a postage pre-paid return envelope, to each person

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identified on the list discussed in Paragraph 3 of this Order.

THIERMAN LAW FIRM, PC
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.laborlawyer.net

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5.

Any person who wishes to opt into this lawsuit must properly complete the

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Consent to Join form and return it to the Administrator on or before sixty (60) days from the

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date the notice is mailed. Any potential opt-in plaintiff whose Consent to Join is postmarked

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after the date will not be able to participate in this lawsuit.

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6.

If any notice package is returned undeliverable, the Administrator will, within

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fourteen days thereafter, use the Social Security number provided by Wells Fargo and attempt

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to obtain an alternate address for that addressee and mail the notice package to that alternate

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address. The Administrator will keep a record of: (a) the date on which any notice package is

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returned undeliverable; (b) the date on which the undeliverable notice package is sent to an

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alternate address; and (c) any updated addresses.

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7.

On each Friday after the initial mailing, the Administrator will e-mail to

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counsel for both parties PDF copies of all Consent to Join forms the Administrator received

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during that week. It will then be Plaintiff's counsel's responsibility to file the Consent to Join

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forms with the Court in a timely manner, and the statute of limitations will continue to run

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until the actual filing of the Consent to Join form.

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IT IS SO ORDERED

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THIERMAN LAW FIRM, PC
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.laborlawyer.net

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DATED: August 9, 2012

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______________________________________
U.S. DISTRICT COURT JUDGE
JAMES C. MAHAN

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EXHIBIT A

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Mark R. Thierman, NV SBN 8285
[e-mail]
Jason J. Kuller, NV SBN 12244
[e-mail]
Joshua D. Buck, NV SBN 12187
[e-mail]
THIERMAN LAW FIRM, PC
7287 Lakeside Drive
Reno, Nevada 89511
Tel. [phone]
Fax. [phone]

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Attorneys for Plaintiff ERIC GILBERT

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THIERMAN LAW FIRM, PC
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.laborlawyer.net

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Case No.: 2:11-cv-01841-JCM-PAL

ERIC GILBERT; on behalf of himself, all
others similarly situated,

[PROPOSED] NOTICE OF PENDENCY OF
FLSA COLLECTIVE ACTION LAWSUIT
AGAINST WELLS FARGO BANK, N.A.

Plaintiff,

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v.
WELLS FARGO BANK, N.A. and DOES
1-50, inclusive,

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Defendant.

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TO: All persons employed by Wells Fargo Bank, N.A. as Business Sales Officers, and/or any
others similarly situated, from July 5, 2009 to the present.

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RE: Fair Labor Standards Act lawsuit filed against Wells Fargo Bank, N.A.
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INTRODUCTION

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The purpose of this notice is to:

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1)

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inform you of the existence of a lawsuit seeking recovery of unpaid overtime
compensation under the Fair Labor Standards Act (“FLSA”) in which you may
be “similarly situated” to named-Plaintiff Eric Gilbert;

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NOTICE OF THE PENDENCY OF FLSA COLLECTIVE ACTION LAWSUIT

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advise you of how your rights may be affected by this lawsuit; and

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instruct you on the procedure for participating in this lawsuit, if you choose to
do so.

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This Notice is not an expression by the court of any opinion as to the merits of any
claims or defenses asserted by any party to this action.

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THIERMAN LAW FIRM, PC
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.laborlawyer.net

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DESCRIPTION OF THE LAWSUIT
On June 10, 2011, Plaintiff Eric Gilbert (“Plaintiff” or “Gilbert”) filed a collective and
class action complaint against Wells Fargo Bank N.A. (“Wells Fargo” or “Defendant”), on
behalf of himself and all others similarly situated, for overtime compensation under the FLSA
and the Nevada Labor Code. Specifically, Plaintiff claims that he and other persons employed
as Wells Fargo Business Sales Officers (“BSOs”) were incorrectly classified as “exempt”
from overtime compensation under the FLSA and Nevada Labor Code. As a result of this
alleged misclassification, Plaintiff contends that he and other BSOs are owed overtime
compensation for all hours they worked over forty (40) hours per week. Plaintiff seeks
back pay in an amount equal to the alleged unpaid wages and liquidated damages (double
damages) resulting from Wells Fargo’s alleged unlawful conduct
Wells Fargo denies Plaintiff’s claims and contends that Plaintiff and all other similarly
situated BSOs were correctly classified as “exempt” under federal and state laws.
Accordingly, Wells Fargo denies that it is liable for any damages resulting from this lawsuit.

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DEFINITION OF WHO MAY PARTICIPATE IN THIS LAWSUIT

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To participate in this lawsuit, you must have been employed by Wells Fargo as a BSO
at some point within three years from the date a request to "Consent to Join" the lawsuit is
actually filed with the federal court (see enclosed form).

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YOUR RIGHT TO PARTICIPATE IN THIS LAWSUIT
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If you fit the definition above, you may join this case by mailing the enclosed
“Consent to Join” form to the third party administrator ("the Administrator") at the following
address:
Simpluris, Inc.
Tony Dang
3176 Pullman Street, Suite 123
Costa Mesa, CA 92626
If you want to join this lawsuit, you must send the form to the Administrator so that
the attorneys prosecuting this case have time to file it with the Federal Court. If you do not
return the “Consent to Join” form in time for it to be filed with the Federal Court, you may not
be able to participate in this lawsuit.
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NOTICE OF THE PENDENCY OF FLSA COLLECTIVE ACTION LAWSUIT

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EFFECT OF JOINING THIS SUIT

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If you choose to join this case, you will be bound by the decision of the court, whether
it is favorable or unfavorable.

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If you sign and return the “Consent to Join” form you are agreeing to:

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1)

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4)

THIERMAN LAW FIRM, PC
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.laborlawyer.net

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2)
3)

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designate the Plaintiff as your agent to make decisions on your behalf
concerning this lawsuit;
the method and manner of conducting this lawsuit;
enter into an agreement with Plaintiff’s counsel concerning attorney’s fees and
costs; and
all other matters pertaining to this lawsuit.

These decisions and agreements made and entered into by the representative Plaintiff
will be binding on you if you join this lawsuit. However, the court has retained jurisdiction to
determine the reasonableness of any settlement with the Defendant, and any agreement
concerning the reasonableness of any attorney’s fees and costs that are to be paid to the
Plaintiff’s counsel.

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The attorney for the Plaintiff class is being paid on a contingency fee basis, which
means that if there is no recovery there will be no attorney’s fee. If Plaintiff prevails in this
litigation, the attorney for the class will request that the court either determine or approve the
amount of attorney’s fee and costs he is entitled to receive for his services.

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LEGAL EFFECT IN NOT JOINING THIS SUIT

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You do not have to join this lawsuit. If you do not wish to participate in this lawsuit,
then do nothing. If you choose not to join this lawsuit, you will not be affected by any
judgment, dismissal, or settlement rendered in this lawsuit, whether favorable or unfavorable
to the class. This means if Plaintiff wins, you will not collect any money from this lawsuit; if
Plaintiff loses, you will not lose any claims you may or may not have under the FLSA. If you
choose not to join this lawsuit you are free to file your own lawsuit.

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STATUTE OF LIMITATIONS ON POTENTIAL CLAIMS
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The maximum period of time that you can collect unpaid wages under the FLSA is
three (3) years from when you worked the hours, but were not paid time and one-half for
overtime work. The statute of limitations continues to expire until you file with the court a
written consent to join this lawsuit, or initiate your own lawsuit to collect your unpaid wages.

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NOTICE OF THE PENDENCY OF FLSA COLLECTIVE ACTION LAWSUIT

NO RETALIATION PERMITTED

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Federal Law prohibits Wells Fargo from discharging you or in any other manner
discriminating against you if you exercise your rights under the FLSA to seek compensation.

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YOUR IMMIGRATION STATUS DOES NOT MATTER IN THIS CASE

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You are entitled to be paid overtime wages and minimum wages under the FLSA, even
if you are not otherwise legally entitled to work in the United States. Bringing a claim in the
court for unpaid overtime wages is not a basis for you to be deported from the United States.

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YOUR LEGAL REPRESENTATION IF YOU JOIN

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THIERMAN LAW FIRM, PC
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.laborlawyer.net

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If you choose to join this lawsuit and agree to be represented by the named Plaintiff
through his attorney, your counsel in this action will be the attorneys at:

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Thierman Law Firm
7287 Lakeside Drive
Reno, NV 89511
775-284-1500
Email: [e-mail]

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FURTHER INFORMATION

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The court has taken no position in this case regarding the merits of the Plaintiff’s
claims or of the Defendant’s defenses.

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DO NOT CONTACT THE CLERK OF THE COURT

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DATED:

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______________________________________
U.S. DISTRICT COURT JUDGE
HON. JAMES MAHAN

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NOTICE OF THE PENDENCY OF FLSA COLLECTIVE ACTION LAWSUIT

EXHIBIT B

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Mark R. Thierman, NV SBN 8285
[e-mail]
Jason J. Kuller, NV SBN 12244
[e-mail]
Joshua D. Buck, NV SBN 12187
[e-mail]
THIERMAN LAW FIRM, PC
7287 Lakeside Drive
Reno, Nevada 89511
Tel. [phone]
Fax. [phone]

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Attorneys for Plaintiff ERIC GILBERT

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THIERMAN LAW FIRM, PC
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.laborlawyer.net

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ERIC GILBERT; on behalf of himself, all
others similarly situated,

Case No.: 2:11-cv-01841-JCM-PAL
CONSENT TO JOIN

Plaintiff,

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v.
WELLS FARGO BANK, N.A. and DOES
1-50, inclusive,

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Defendant.

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I understand that this lawsuit has been brought under the Fair Labor Standards Act
(''FLSA'') and that it seeks unpaid overtime wages from Wells Fargo Bank, N.A (“Wells
Fargo”). I have read the Notice accompanying this Consent to Join. I work, or have worked,
for Wells Fargo as a Business Sales Officer at some point within the past three years.
I CONSENT TO JOIN THIS LAWSUIT. By signing this Consent to Join, I am
agreeing to have Plaintiff Eric Gilbert act as my agent to make decisions on my behalf
concerning the litigation and resolution of my FLSA claims. I am also agreeing to be
represented by Mr. Gilbert’s attorneys, (Mark Thierman, Esq., Thierman Law Firm, 7287
Lakeside Drive, Reno, NV 89511), and any other attorneys with whom they may associate,
unless I hire my own attorney.

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I understand that I may participate in this lawsuit only if my completed, signed and
dated ''Consent to Join'' form is postmarked on or before [60 days from the mailing date].

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Print Name: ______________________
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Address: ______________________

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City, State & Zip: ______________________

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Telephone number: ______________________

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Signature: ______________________

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Date signed: ______________________

THIERMAN LAW FIRM, PC
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.laborlawyer.net

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