United States District Court, D. New Mexico
LOUIE DESCHAMPS, and all others similarly situated under 29 USC § 216b, Plaintiff,
NOVA HARDBANDING, LLC, and KEN BROMLEY, individually, Defendants.
AND CLASS ACTION COMPLAINT
Derek Braziel, J. Forester, Lee & Braziel, L.L.P. Jack
Siegel Jack Siegel Law Group PLLC ATTORNEYSFORPLAINTIFFS
LAW FIRM, P.C. FERNANDO M. BUSTOS MATTHEW N. ZIMMERMAN
COUNSEL FOR DEFENDANTS ATTORNEYS FOR DEFENDANTS
STIPULATION AND ORDER REGARDING NOTICE TO POTENTIAL
on behalf of himself and all others similarly situated, and
the above-named Defendants (“Defendants”)
(collectively, the “Parties”) hereby file this
Stipulation and Proposed Order Regarding Notice to Potential
Plaintiffs (“Stipulation”) and request Court
approval of the Stipulation by signing below in the space
preserve resources and in the interest of judicial economy,
the Parties have reached an agreement that this case should
be and, by this Stipulation when signed by the Court, is
conditionally certified as a collective action under the Fair
Labor Standards Act, 29 U.S.C. § 216(b). The Parties
stipulate that the Notice and Consent Form
(“Consent”) (attached hereto as Exhibits A and B,
respectively) are timely, informative, and accurate. The
Parties agree to use this form as the exclusive means to
inform the Class Members of their right to opt into this
lawsuit. Nothing in this Stipulation or in the Notice and/or
Consent shall be interpreted as limiting, waiving, or
modifying any of the Parties' claims and/or defenses.
Despite this stipulation, Defendants continue to deny that
they have violated the FLSA in any respect.
are ordered to produce the names, last known email addresses,
phone numbers and addresses (collectively, “Employee
Information”) of the following Class Members:
All field personnel paid on a salary or salary plus bonus
basis whose primary duties involved the performance of
technical or manual labor to provide Defendants' services
at job sites employed by Defendants over the previous three
shall provide the Employee Information in an electronic form
that can be used by Plaintiff in mailing out the
Court-approved Notice. If the information is not stored
electronically, Defendants shall provide it in written form.
The Employee Information must be provided within seven days
of the entry of this Stipulation and Order. If Defendants
fail to provide the Employee Information within seven days of
the date this Order is signed, the statute of limitations is
tolled for each day after the seventh day that Defendants
fail to provide the Employee Information.
Court authorizes that the “Notice” (Exhibit A)
may immediately issued to the Class Members in accordance
with the below-provided procedure. Plaintiff shall enclose
the “Consent Form” (Exhibit B) with a
self-addressed, postage paid return envelope for U.S. postal
mailing. The Notice and Consent Forms shall be sent by first
class mail, overnight delivery or electronically at
Plaintiff's attorney's cost. Plaintiff may send the
Notice electronically by utilizing the following language by
text message and email: “Nova Mud records show that you
provided services to Nova Mud and may be eligible to join
this lawsuit. Click below for more information.” The
text and email messages shall contain a link to electronic
versions of the Notice and Consent Form. The Potential
Plaintiffs shall be provided forty-five (45) days
after the date the Notice and Consent are initially mailed to
file a Consent form opting-in to this litigation. A Consent
postmarked on the deadline is considered timely. Consents
received by mail without postmarks shall be considered timely
if received within four (4) business days of the deadline.
Plaintiff shall provide the Court and opposing counsel with a
notice indicating the date on which the Notice forms were
initially mailed so the Court and the Parties are advised of
the beginning of the opt-in period.
counsel shall date stamp the returned consents on the day
they are received in counsel's office and retain any
envelope or other evidence showing the date the Consent Form
was postmarked, fax-stamped, or received. Within 10 days
after the close of the Opt-In Period, Plaintiffs counsel will
file the consent forms for the Opt-In Plaintiffs, noting the
received date for each individual on the Notice of Filing.
The received date will constitute the date the consents forms
will be considered filed with the Court for statute of
Why Am I Getting This Notice?
What Are My Choices?
You have been identified as an individual who worked
for Nova Hardbanding, LLC.
(“Nova”) who received
• On a salary basis or salary plus bonus basis
with no overtime pay for
working over 40 hours per week
between ________ and today. If you
have received this
Notice, this lawsuit may affect you.
If you join this lawsuit, you will be bound by the
case’s result-whether favorable or unfavorable.
If you join the case, you will not have to pay the
lawyers anything out of pocket, win or lose.
If you do not join this lawsuit as a plaintiff, you
are free to take action on your own or do nothing.
What’s is The Lawsuit About?
What Can I Get?
A former Nova employee filed a state
and federal overtime lawsuit seeking unpaid overtime
pay for working over 40 hours per week. The lawsuit
claims that Nova failed to pay him
and other employees overtime for all overtime hours
worked during their employment. Specifically, the
lawsuit claims that Nova:
• Misclassified field personnel as exempt from
overtime and paid them on a salary basis; and
• Failed to pay them overtime for all overtime
hours worked (hours worked over 40 per week).
Nova denies the allegations. Nova
recently settled claims with the United States
Department of Labor (“DOL”) that alleged
overtime violations that resulted in Nova sending
settlement checks to current and former Nova
employees that Nova and the DOL agreed were entitled
to overtime pay for overtime work performed between
April 22, 2013 and April 21, 2015.
The receipt or acceptance of the settlement check
does not prevent you from participating in this case.
However, cashing a settlement check may result in a
waiver of your federal overtime claims (but
not state law claims)
exclusively for the following
April 22, 2013 to April 21, 2015
If the workers win, you may get an amount up to two
times the unpaid wages you should have received plus
attorneys’ fees and costs.
If nothing is recovered in the case, you will get
nothing and court costs (but not attorneys’
fees) may possibly be assessed against you.
Can I be Fired or Retaliated
It is unlawful for Nova,
or your current employer to
terminate or take any adverse action, as defined by
the law, as a result of your participation in this
How Do I Join the Lawsuit?
If you want to participate in the lawsuit, fill out
the enclosed Consent to Join form and mail
or fax it back. It must be mailed and received by
Can I Get More Information?
To learn more, call the workers’ attorneys toll
free at 866-949-1400. There is no charge for the
consultation and the call is confidential.
Or write or email:
Lee & Braziel, LLP
Nova Hardbanding Unpaid Overtime Claims
1801 N. Lamar St., Suite 325
Dallas, TX 75202
Am I eligible?
You are eligible to join this case to pursue unpaid
overtime pay if:
• You worked for Nova performing work at job
• Worked over 40 hours in at least one week;
• Received a salary or salary-plus-bonus, but no
at any time between__________and the
You have a choice to assert your legal rights in this
case if you desire to do so. If you do not do so, you
will not share in any money awarded in the case.
AND CLASS ACTION COMPLAINT
OF CONSENT TO BE ...