Pfeffer v. Bank of America Corporation et al

OCR transcription for search; preserved printed pages are authoritative

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:23-CV-00813-KDB-DCK

RUSSELL PFEFFER,
FRANK CRONIN,

ROGER ROJAS,
MUHAMED VRLAKU,
JASON AUERBACH,
DAVID DESSNER,
ADAM SHERMAN, AND
GRACE BOZICK,

Plaintiff
V. ORDER
BANK OF AMERICA
CORPORATION AND
BANK OF AMERICA NA.,

Defendants.

THIS MATTER is before the Court on Plaintiffs’ Motion for Conditional Collective
Certification and Facilitated Notice (Doc. No. 20). The Court has carefully considered this
motion, the parties’ briefs and exhibits and oral argument on the motion from the parties’ counsel
on July 19, 2024. For the reasons discussed below, the Court will GRANT in part and DENY in
part the motion.

I. LEGAL STANDARD

The Fair Labor Standards Act (“FLSA”) “embodies a federal legislative scheme to

protect covered employees from prohibited employer conduct.” Houston v. URS Corp., 591 F.

Supp. 2d 827, 831 (E.D. Va. 2008). A plaintiff alleging an FLSA violation may bring suit on his

INFORMATION

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or her own behalf or on behalf of other employees who are similarly situated. 29 U.S.C. § 216(b).
Section 216(b) explains the process for a collective action:
An action to recover the liability prescribed [under the FLSA]
may be maintained against any employer . . . in any Federal
or State court of competent jurisdiction by any one or more
employees for and in behalf of himself or themselves and other
employees similarly situated. No employee shall be a party
plaintiff to any such action unless he gives his consent in writing
to become such a party and such consent is filed in the court in
which such action is brought.
“Thus, there are two requirements for the certification of a FLSA collective action: (1) the
members of the proposed class must be ‘similarly situated,’ and (2) the class members must ‘opt-
in’ by filing their consent to suit.” Dearman v. Collegiate Housing Services, Inc., No. 5:17-
cv-57, 2018 WL 1566333 (W.D.N.C. Mar. 30, 2018); see also Long v. CPI Sec. Sys., Inc.,
292 F.R.D. 296, 298 (W.D.N.C. 2013); Romero v. Mountaire Farms, Inc., 796 F. Supp. 2d
700, 705 (E.D.N.C. 2011). “Similarly situated” is not defined in the FLSA and the Fourth
Circuit has not provided guidance on how it should be applied. Long, 292 F.R.D. at 298.
“However, federal district courts in the Fourth Circuit typically follow a two-step approach
when deciding whether the named plaintiffs are similarly situated to potential plaintiffs for
the purposes of certifying the collective action.” Id.; see also Holland v. Fulenwider
Enterprises, Inc., No. 1:17-cv-48, 2018 WL 700801 (W.D.N.C. Feb. 2, 2018).
At the first stage, also called the “notice stage,” “the court makes a preliminary
determination whether to conditionally certify the class based upon the limited record before
the court.” Long, 292 F.R.D. at 298. At this stage, the plaintiff bears a “fairly lenient” burden,
needing only to show “substantial allegations that the putative class members were together the
victims of a single decision, policy, or plan.” Holland, 2018 WL 700801 at *2; see also In re
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Family Dollar FLSA Litigation, No. 3:12-cv-1951, 2014 WL 1091356 (W.D.N.C. Mar. 18,
2014). The plaintiff also must show that the putative class is manageable. See In re Family
Dollar FLSA Litigation, 2014 WL 1091356 (W.D.N.C. Mar. 18, 2014). A “fairly lenient”
standard does require more than just bare assertions. For example, relying solely on a common
job description is not enough to show that potential members are similarly situated. Id.
If the court grants the motion to conditionally certify, it then will authorize
plaintiff’s counsel to provide putative plaintiffs with notice. Long, 292 F.R.D. at 299. District
courts have wide discretion in facilitating notice to potential claimants. Hoffman-La Roche
Inc. v. Sperling, 110 S. Ct. 482 (1989). This includes limiting the size of the proposed class,
restricting duplicative notices, and altering the content of the notice. See e.g., Moseman v. U.S.
Bank Nat’l Ass’n, No. 3:17-cv-481, 2018 WL 3616864 (W.D.N.C. June 12, 2018).
Stage two arises if and when the defendant files a motion for decertification. Long, 292
F.R.D. at 299. This generally occurs after discovery is complete. Id. At this more advanced stage
of the litigation, the court will conduct the same “similarly situated” analysis but will apply a
heightened fact-specific standard. Id. “Upon a determination that the plaintiffs established the
burden of proving they are ‘similarly situated,’ the collective action proceeds to trial.” Id. “On
the contrary, if the court determines that the plaintiffs are in fact, not ‘similarly situated,’ the
class is decertified and the original plaintiffs may proceed on their individual claims.” Id.
“A collective action allows [FLSA] plaintiffs the advantage of lower individual costs to
vindicate rights by the pooling of resources,” and “[t]he judicial system benefits by efficient
resolution in one proceeding of common issues of law and fact arising from the same alleged
[unlawful] activity.” Id. at 170. “Section 216(b)’s affirmative permission for employees to
proceed on behalf of those similarly situated must grant the court the requisite procedural authority
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to manage the process of joining multiple parties in a manner that is orderly, sensible, and not
otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil
Procedure.” Id. (citing Fed. R. Civ. P. 83). “Court authorization of notice serves the legitimate
goal of avoiding a multiplicity of duplicative suits and setting cutoff dates to expedite disposition
of the action.” Id.
II. FACTS AND PROCEDURAL HISTORY
Plaintiffs, current and former employees of Bank of America, sold Bank of America
mortgage products and other mortgage-related loan products. See Doc. No. 1 at ⁋ 1. They
allegedly received no overtime pay for hours worked in excess of 40 hours per week because
they were classified as “exempt” under the FLSA. Id. at ⁋⁋ 1-2. Bank of America accordingly did
not keep track of Plaintiffs’ time records or set work schedules. Id. at ⁋ 38. Instead, Plaintiffs
were paid on commission, although at least some positions received a guaranteed minimum
salary. See Doc. No. 28-7 at 2-3. Pursuant to Bank of America policy, any commissions earned
by Plaintiffs were first used to satisfy that minimum compensation and if the monthly
commissions exceeded that amount, Plaintiffs were paid the additional compensation. Id.
Plaintiffs allege, however, that Bank of America misclassified them as “exempt” and
therefore unlawfully denied them overtime and minimum wage. See Doc. No. 1 at ⁋ 1. They filed
this case in November 2023 and allege that Defendants Bank of America Corporation and Bank
of America, N.A. (collectively, “Bank of America”) willfully violated the FLSA by failing to
compensate them for all hours worked. Id. at ⁋⁋ 132-142. They also bring state law claims under
New York, Connecticut, South Carolina, and Florida wage and labor laws. Id. at ⁋⁋ 143-174. All
of these state law claims are asserted as putative class actions. Id.
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Plaintiffs filed this Motion for Conditional Collective Certification and Facilitated Notice
(Doc. No. 20) in March 2024. In their motion, they seek only to conditionally certify an FLSA
collective pursuant to 29 U.S.C. § 216(b). See Doc. No. 20-1 at 7. Once briefing concluded, the
Court held a hearing on the motion on July 19, 2024. The Court took the motion seeking
conditional collective certification under advisement, but ordered the parties to meet and confer
and submit a revised proposed notice that better defined the putative collective by July 26, 2024.
On July 24, 2024, Plaintiffs submitted a revised proposed notice that incorporated some of
Defendants’ requested revisions and objections. See Doc. No. 46. However, Plaintiffs appear to
have submitted this new document without replying to Defendants’ submission or addressing all
of Defendants’ questions about the notice. See Doc. No. 47-2 at 2-3. In fact, Plaintiffs appear to
concede that they did not attempt to meet and confer because they informed the Court that they
did “not believe that further exchanges between the parties will resolve any outstanding
objection.” Doc. No. 46 at 2.
After carefully reviewing both parties’ proposed notices, the Court will define the
collective and approve notice to them as described in this Order.
III. DISCUSSION
A. Conditional Collective Certification
Plaintiffs seek to conditionally certify the following opt-in collective:
current or former employees of Bank of America … who worked
as Enterprise Lending Officers/Sr. Lending Officer (job code
SM172), Sr. Wealth Management Lending Officer - Reg. (job code
SM603), Sr. Wealth Management Lending Officer (job code
SM604), WM Lending Officer (job code SM605), Sr. Financial
Center Lending Officer – E (job code SM610), and/or Sr. PB
Wealth Management [L]ending Officer (job code SM618)
(collectively, “Loan Officers”) on or after November 30, 2020.
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Doc. No. 46-1 at 2. In support of their motion, Plaintiffs argue that they have sufficiently met the
“similarly situated” standard, asserting that all members of this putative collective performed
similar job duties and that all were “victims of Defendants’ common policy, plan, or decision to
not pay Loan Officers overtime wages for hours worked in excess of 40 hours in any
workweek.” Doc. No. 20-1 at 15. Specifically, they claim that Bank of America misclassified
these employees as “exempt” for FLSA purposes. Plaintiffs submitted 18 declarations in support
of their motion. See Doc. Nos. 20-3 – 20-20.
In response, Defendants first contend that Plaintiffs are not similarly situated because
each “held different positions, with different duties and responsibilities, which they performed in
different ways, and they fall within several different FLSA exemptions with distinct duties tests.”
Doc. No. 28 at 8. In their brief and at oral arguments, Defendants insisted that these differing job
duties and the potential applicability of various FLSA exemptions will result in highly
individualized discovery not appropriate for collective actions such as this one. Defendants
further argue that Plaintiffs’ proposed notice and consent to join suit are defective for a plethora
of reasons, which the Court will address below. Lastly, in their Response, Defendants proffered a
series of declarations arguing that some Plaintiffs held non-exempt positions, meaning they fall
outside the proposed collective, and that at least one Named Plaintiff left Bank of America
before the putative collective period even began. Id. at 15-16; Doc. No. 28-4 at 3-4.1
1 At oral argument, when the Court asked Plaintiffs’ counsel, who failed to respond to
these allegations in the Reply brief, whether the identified Plaintiffs were eligible to be part of
the proposed class, Plaintiffs curiously asserted that they required evidence from Bank of
America to make that determination about their own clients. In fact, at multiple times during the
hearing, Plaintiffs stated that Bank of America had the burden of proving various arguments.
However, the burden of proof did and does remain with the Plaintiffs.
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Having considered the parties’ arguments and the limited record before the Court, the
Court finds that in light of the “lenient” governing standard, the following collective should be
conditionally certified:
All current or former employees of Bank of America, N.A. who
worked as Enterprise Lending Officers/Sr. Lending Officer (job
code SM172), Sr. Wealth Management Lending Officer - Reg. (job
code SM603), Sr. Wealth Management Lending Officer (job code
SM604), WM Lending Officer (job code SM605), Sr. Financial
Center Lending Officer – E (job code SM610), and/or Sr. PB
Wealth Management lending Officer (job code SM618) on or after
July 26, 2021 (or three years prior to the filing of this action for the
Named Plaintiffs or three years prior to the date of their filed
Consent to Join Suit for Plaintiffs who opted-in before conditional
certification).
Accordingly, the Court has accepted Plaintiffs’ proposed definition of the collective as to job
positions but has set the time parameters (the “look back” period) differently.
To determine the look-back period that defines the collective, the Court must consider the
relevant statute of limitations. The statute of limitations for an FLSA claim for unpaid overtime
compensation is two years, unless the cause of action arises out of a willful violation, which
extends the cause of action to three years. 29 U.S.C. § 255(a). The question of willfulness “is a
factual issue often addressed on summary judgment or at trial” and the Court ought not decide it
here. Houston v. URS Corp., 591 F. Supp. 2d 827, 835 (E.D. Va. 2008). Instead, because
“judicial economy is served by conditionally certifying and providing notice to a larger rather
than a smaller class,” the Court will consider the three-year statute of limitations for purposes of
the look-back period.
To evaluate when an FLSA action has commenced for a particular plaintiff, the Court
uses “the date when the complaint is filed, if he is specifically named as a party plaintiff in his
complaint and his written consent to become a party plaintiff is filed on such date in the court in
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which the action is brought.” 29 U.S.C. § 256(a). However, “if such written consent was not so
filed or if his name did not so appear” the action is deemed to have commenced for a later filed
plaintiff “on the subsequent date on which such written consent is filed in the court in which the
action was commented.” § 256(b). Thus, because the statute of limitations continues to run for
opt-in plaintiffs until they file their individual consent to become a party, plaintiffs whose causes
of action accrued more than three years before this Order is entered cannot satisfy the statute of
limitations. Thus, the collective may only include individuals who held one of the identified job
titles on or after July 26, 2021, not November 30, 2020.
As for Defendants’ argument that the putative class is not “manageable” because it will
require individualized, fact-specific inquiries, the Court finds that the putative collective is
sufficiently manageable now that Plaintiffs have limited the scope of their collective to specific
job titles that were allegedly classified as exempt. As alleged, employees in this putative
collective were paid on the same commission basis (with the same guaranteed minimum
compensation), had sufficiently similar job duties in that each was responsible for selling
mortgages, and were subject to the same policies and standards. See Doc. No. 28 at 9-11, Doc.
No. 28-4 at 4; see also Klakulak v. Americahomekey, Inc., 3:11-CV-388-MOC, 2012 WL
13194972, at *1 (W.D.N.C. Mar. 1, 2012). Moreover, as Plaintiffs are only seeking conditional
certification, such an inquiry into the merits of potential FLSA exemptions should be reserved
for the decertification stage or for the merits of the dispute. See Essame v. SSC Laurel Operating
Co. LLC, 847 F. Supp. 2d 821, 826 (D. Md. 2012) (stating that such a fact-intensive inquiry
“delves too deeply into the merits of the dispute; such a steep plunge is inappropriate for such an
early stage of a FLSA collective action”); McLaurin v. Prestage Foods, Inc., 271 F.R.D. 465,
470 (E.D.N.C. 2010) (“[C]ourts have routinely recognized that where an employer has a
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common practice of failing to pay employees for all hours worked, factual distinctions of the
type claimed by [defendant] provide no basis to deny initial certification of a collective action
under the FLSA.”).
There are also sound policy reasons to grant Plaintiffs’ motion for conditional
certification. The FLSA provides a mechanism for employees to bring collective actions that
give plaintiffs “the advantage of lower individual costs to vindicate rights by the pooling of
resources. The judicial system benefits by efficient resolution in one proceeding of common
issues of law and fact arising from the same alleged activity.” Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 170 (1989). “These benefits, however, depend on employees receiving
accurate and timely notice concerning the pendency of the collective action, so that they can
make informed decisions about whether to participate.” Id.
In sum, the Court finds that the putative members of this FLSA collective are similarly
situated with regard to their responsibilities for selling mortgages, their alleged exempt status,
and Defendants’ policy and practice of not tracking their hours nor paying overtime for hours
worked in excess of 40 hours per week. Of course, this conditional certification does not
prejudge whether a class will ultimately be certified if Defendants pursue decertification and, at
that time, the Court will reconsider Defendants’ arguments.
B. Notice
Once a court decides to conditionally certify an FLSA collective, the next step is
authorizing notice to putative plaintiffs. Plaintiffs ask the Court to authorize notification via mail,
email, and text message. See Doc. No. 20-1 at 22-24. Additionally, they ask for a 90-day opt-in
period and permission to issue one reminder notice to the collective via mail and email 45 days
into the opt-in period. Id. at 20-22. Plaintiffs further request that Defendants provide an Excel
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spreadsheet (or other similar computer-readable electronic format) within 14 days of this Order
containing the name, last known address, email addresses, phone numbers, dates of employment
and location(s) of employment for each putative collective member. Id. at 24. Plaintiffs specify
in their most recent filing that they also seek “work numbers and addresses.” Doc. No. 46-1 at 5.
Defendants ask the Court to limit dissemination of notice to the home addresses, personal phone
numbers, and personal email addresses of the putative collective members. Id. at 6. They further
ask the Court to allow only written notice and to prevent Plaintiffs from calling potential
plaintiffs to provide notice. Id.
This Court has broad discretion in determining how notice will be sent to putative
plaintiffs. Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165 (1989). It is well settled that notice
by email and mail are frequently permitted. See, e.g., Rehberg v. Flowers Foods, Inc., No. 12-cv-
596, 2013 WL 1190290 at *3 (W.D.N.C. Mar. 22, 2013). Courts often permit plaintiffs to
disseminate notice via text message as well. See Roldan v. Bland Landscaping Co., Inc., 3:20-
CV-276-KDB-DSC, 341 F.R.D. 23, 35 (N.C.W.D. 2022). Thus, the Court will permit Plaintiffs
to send one notice by mail, email, and text message (in the form ordered below) to members of
the putative collective at the beginning of the opt-in period and it will further permit one
reminder to be sent only by mail and email 45 days into the opt-in period.
The Court will not, however, authorize Plaintiffs to contact putative class members at
their work addresses or by their work-related phone numbers. The Court also expressly prohibits
Plaintiffs from using any form of oral notice (for example, speaking to individuals via phone call
or leaving phone messages) and Plaintiffs are not permitted to contact or otherwise communicate
with putative class members in any other manner than as authorized in the prior paragraph,
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unless one of the putative plaintiffs initiates contact, in which case Plaintiffs may then respond to
that individual.
The Court acknowledges that Defendants have requested that the Court order the use of a
third-party administrator to distribute notice. In considering this request, the Court is mindful of
the fact that Plaintiffs failed to follow the Court’s order to appropriately meet and confer in
submitting their revised proposed notice. Instead, “[i]n the interest of moving forward,” they
unilaterally filed their revised proposed notice without directly responding to Defendants’
objections (although they did accept some of the revisions and acknowledged many areas of
disagreement). See Doc. Nos. 46 at 2, 47 at 14, 47-1, 47-2.2 However, in the absence of
additional cause not to permit Plaintiffs to give notice and given this Court’s consistent prior
practice of allowing plaintiffs’ counsel to facilitate notice, the Court will allow Plaintiffs’
counsel to provide notice in this case, subject to the confidentiality and other restrictions set forth
in this Order.
To protect the privacy interests of the potential class members, the Court will order that
the parties maintain strict confidentiality over the putative collective members’ contact
information and use that information only for the limited purpose of providing the Notice
authorized by the Court. Defendants are directed to produce such information to Plaintiffs’
counsel within 14 days of this Court’s Order.
2 At the hearing, the Court ordered the parties to submit a joint revised proposed notice
by Friday, July 26, 2024. Plaintiffs then promised to submit it on Monday, July 22, 2024. The
Court, in response, expressly told the parties that while it welcomed earlier submission, it would
not require it and mandated that the parties pursue a cooperative and joint process to prepare and
submit a revised notice. Thus, the fact that Defendants did not accommodate Plaintiffs’
unilaterally imposed deadline, particularly in light of the fact that Defendants needed to confer
with their clients and still returned their comments before noon on Tuesday, July 23, 2024, does
not justify Plaintiffs failure to appropriately meet and confer.
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IV. ORDER
NOW THEREFORE IT IS ORDERED THAT:
1. Plaintiffs’ Motion for Conditional Collective Certification and Facilitated Notice
(Doc. No. 20) is GRANTED in part and DENIED in part;
2. The Court will grant Plaintiffs’ motion for conditional collective certification with
regards to the following defined class:
All current or former employees of Bank of America, N.A.
who worked as Enterprise Lending Officers/Sr. Lending
Officer (job code SM172), Sr. Wealth Management
Lending Officer - Reg. (job code SM603), Sr. Wealth
Management Lending Officer (job code SM604), WM
Lending Officer (job code SM605), Sr. Financial Center
Lending Officer – E (job code SM610), and/or Sr. PB
Wealth Management lending Officer (job code SM618) on
or after July 26, 2021 (or three years prior to the filing of
this action for the Named Plaintiffs or three years prior to
the date of their filed Consent to Join Suit for Plaintiffs
who opted-in before conditional certification);
3. Plaintiffs are permitted to send the approved notices below by mail, email, and
text message to all putative collective members once and are further permitted to
send a reminder notice by mail and email 45 days into the 90-day opt-in period;
4. Plaintiffs may not otherwise provide notice or communicate with the members of
the Collective (for example orally) except in response to a communication from a
member of the Collective; and
5. Defendants are ordered to produce to Plaintiffs counsel an electronic list of all
putative collective members that includes members’ full names, last known
addresses, personal phone numbers, personal email addresses, and dates and
location of employment within 14 days of this Order.
SO ORDERED.
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Signed: July 26, 2024

Kenneth D. Bell

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
RUSSELL PFEFFER, ET AL. V. BANK OF AMERICA CORPORATION AND
BANK OF AMERICA N.A.,
CIVIL ACTION NO. 3:23-CV-00813-KDB-DCK
COURT-AUTHORIZED NOTICE OF A COLLECTIVE ACTION
LAWSUIT AGAINST BANK OF AMERICA
[NAME]
[ADDRESS]
[CITY, STATE ZIP]
RE: YOUR RIGHT TO JOIN A LAWSUIT SEEKING UNPAID OVERTIME PAY
AND MINIMUM WAGE UNDER THE FAIR LABOR STANDARDS ACT
RESPONSE DATE: [DATE 90 days from issuance of notice]
This is a Court-authorized notice. This is not a solicitation from a lawyer. You are not being
sued. This notice is to inform you of your right to participate in a lawsuit.
This is notice is being sent to you as a current or former employee of Bank of America,
N.A. (“Bank of America”) who worked as an Enterprise Lending Officer/Sr. Lending Officer
(job code SM172), Sr. Wealth Management Lending Officer - Reg. (job code SM603), Sr.
Wealth Management Lending Officer (job code SM604), WM Lending Officer (job code
SM605), Sr. Financial Center Lending Officer – E (job code SM610), and/or Sr. PB Wealth
Management Lending Officer (job code SM618) (collectively “Loan Officers”) on or after
July 26, 2021.
A lawsuit alleging that Bank of America misclassified Loan Officers as exempt from
overtime and minimum wage requirements of the Fair Labor Standards Act (“FLSA”) has
been filed in the United States District Court for the Western District of North Carolina (the
“FLSA Collective Action” or “Lawsuit”). Bank of America denies the allegations in the
Lawsuit and maintains that it properly classified and compensated Loan Officers. The Court
has authorized this Notice of your right to opt into the FLSA Collective Action by completing
and returning the enclosed Consent to Join. Though the Court has authorized the distribution
of this Notice, the Court has not made any rulings on the merits of the Plaintiffs’ claims in the
Lawsuit and remains neutral.
Please carefully review this Notice for information regarding the FLSA Collective
Action and the opt-in process.
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1. WHY DID I RECEIVE THIS NOTICE?
2. DESCRIPTION OF THE LAWSUIT
YOU MUST SIGN AND RETURN THE ENCLOSED CONSENT TO JOIN NO LATER
THAN [date 90 days from issuance of notice] IN ORDER TO PARTICIPATE IN THE
FLSA COLLECTIVE ACTION AGAINST BANK OF AMERICA
In an FLSA collective action, one or more people referred to as “Named Plaintiffs” sue on
behalf of similarly situated current or former employees, in this case the Loan Officers defined
above. With Court approval, similarly situated employees are notified of the lawsuit and their
right to opt into the lawsuit by signing and returning a Consent to Join Form (“Opt-in
Plaintiffs”). The Opt-In Plaintiffs are then represented by Plaintiffs’ counsel and bound by the
outcome of the lawsuit, as explained below.
This Notice is authorized by the United States District Court for the Western District of North
Carolina. The purpose of this Notice is: (1) to inform you of the existence of a collective
action lawsuit filed against Bank of America; (2) advise you of how your rights may be
affected by this lawsuit; and (3) instruct you on the procedure for joining this lawsuit if you
choose to do so.
You have been sent this Notice because Bank of America’s employment records show that you
were a Loan Officer on or after July 26, 2021.
The lawsuit alleges that Bank of America misclassified its Loan Officers as exempt from
overtime and failed to pay compensation for hours worked in excess of 40 hours per
workweek. The lawsuit alleges that Bank of America’s failure to pay overtime violated the
FLSA. Plaintiffs have sued to recover overtime for work weeks in which they performed
work in excess of 40 hours per week, unpaid minimum wage, interest, and attorneys’ fees.
Defendants deny the allegations of the lawsuit. The Court has not made any determination as
to the merits of these allegations.
The lawsuit was filed on November 30, 2023, under the caption Pfeffer et al. v. Bank of
America Corporation et al., Case No. 3:23-cv-813, and is pending before U.S. District Judge
Kenneth D. Bell in the United States District Court for the Western District of North Carolina,
Charlotte Division.
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3. YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT
4. HOW TO JOIN THIS LAWSUIT
RETURN THE
“CONSENT TO
JOIN” FORM
If you are a Loan Officer as defined on page 1, you may choose to join
this suit (that is, you may “opt in”). To opt in, you must submit a
“Consent to Join” form. The Consent to Join form is enclosed with this
notice. You may mail, fax, or e-mail the form to Plaintiffs’ counsel
(whose information is available in Section 4, below).
DO NOTHING
If you choose not to join this lawsuit, you will not be affected by any
judgment in this lawsuit on this FLSA claim, whether favorable or
unfavorable. If you choose not to join this lawsuit, you may file your
own lawsuit and select the attorney of your choice. However, if you do
not join this lawsuit, you will not be able to receive any money
recovered in this lawsuit.
Enclosed is a form called a “Consent to Join.” If you choose to join this lawsuit, it is
extremely important that you read, sign, and promptly return the Consent to Join form
by mailing it to Plaintiffs’ counsel at:
Lax & Neville, LLP
350 Fifth Ave.
Suite 4640
New York, NY 10118
You may also join the lawsuit by completing the Consent Form and faxing it to 212-566-4531 or
emailing it to Plaintiff’s counsel’s firm administrator at: jgraf@laxneville.com.
The signed Consent to Join form must be postmarked by, or otherwise received by e-
mail or fax, by [a date 90 days from mailing of the notice].
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5. EFFECTS OF JOINING THE LAWSUIT
6. EFFECTS OF NOT JOINING THE LAWSUIT (DOING NOTHING)
If you file a Consent to Join form by following the instructions, you will be bound by the
judgment (the final result of the lawsuit), whether favorable or unfavorable (that is, whether the
Plaintiffs win the case against Bank of America or not).
Plaintiffs’ attorneys will not charge you directly for their work in this case. If there is no
recovery (i.e., if the Plaintiffs recover no money from Bank of America), you will not have to
pay the attorneys for any of their work. If there is a recovery, Plaintiffs’ attorneys will receive
whatever attorneys’ fees the Court orders. Those fees may be subtracted from the recovery
obtained from Bank of America, or they may be paid separately by Bank of America, or they
may be a combination of the two.
If you join this lawsuit, you are choosing to be represented by Plaintiffs’ counsel and the Named
Plaintiffs who brought this case to make decisions and agreements on your behalf concerning the
lawsuit. These decisions and agreements will then be binding on you. If you opt-in to this
lawsuit, you may or may not be asked to participate in the case by providing information, sending
copies of documents in your possession to your lawyers, or testifying in a deposition or if there is a
trial. Many plaintiffs will have no or a very limited role in the case and others will be required to
do more. If you opt-in, Plaintiffs’ counsel will communicate with you about your role, if any, in
the case.
You may be aware, or become aware, that there is another case named Weinstein, et. al., v.
Bank of America, N.A., Index No. 607185/2024 which has been filed in New York State Court
in Nassau County that brings similar claims to those that the Plaintiffs have brought in this
Lawsuit. The parties in the Weinstein case have asked that court to issue notice informing the
same proposed class of current and former employees receiving notice here of their right to
participate in that case. The Court that authorized the Notice in this case is not involved in that
separate case and does not know when or even if a notice will be issued. However, if you are
given the opportunity to participate in a different case, you may choose only one case in which
you participate (or decide to participate in neither of them). You are encouraged to carefully
evaluate all your options, and the Court that authorized this Notice expresses no opinion and
has no view as to whether or not you participate in this case, another case or no case at all.
If you do nothing, you will not be entitled to share in any amounts recovered by the Plaintiffs,
whether by judgment or settlement, for the FLSA claims in this case. You will not be affected
by any decision regarding those claims, whether favorable or unfavorable, and will be free to
hire your own lawyer and file your own FLSA lawsuit, should you so desire. Please be advised
that the statute of limitations (time by which you must bring claims) is running and that, if you
decide to bring claims on your own, you should consult an attorney.
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7. NO RETALIATION PERMITTED
9. NO OPINIONS EXPRESSED AS TO THE MERITS OF THE CASE
10. THIS NOTICE HAS BEEN AUTHORIZED BY THE COURT
11. QUESTIONS
Federal law prohibits Bank of America from retaliating against you in any way (for example,
firing you, giving you unfair reviews, cutting your pay, failing to promote you, etc.) for
exercising your rights under the FLSA (for example, by joining this lawsuit or by providing
evidence in support of the Plaintiffs).
If you choose to join this Lawsuit you will be represented by Named Plaintiffs’ attorneys. They are:
Lax & Neville, LLP
350 Fifth Ave.
Suite 4640
New York, NY 10118 Telephone: 212-696-1999
Facsimile: 212-566-4531
Firm administrator email: jgraf@laxneville.com
This Notice is for the sole purpose of determining the identity of those persons who may be
entitled to and wish to participate in this lawsuit. The Court has expressed no opinion regarding
the merits of the Plaintiffs’ claims or Bank of America’s defenses, and your claims may be subject
to later dismissal, such as if the Court ultimately finds that the claims lack merit or that they cannot
be litigated on a collective basis.
This notice and its contents have been authorized by the United States District Court for the
Western District of North Carolina, the Honorable District Judge Kenneth D. Bell presiding. You
are under no obligation to respond to this Notice.
If you have any questions, you may write, e-mail or call Plaintiffs’ Counsel at the contact
information provided in Section 8, above. You should not contact the Court with questions.
DATED: , 2024.
8. YOUR LEGAL REPRESENTATION IF YOU JOIN
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
RUSSELL PFEFFER, ET AL. V. BANK OF AMERICA CORPORATION AND
BANK OF AMERICA N.A.,
CIVIL ACTION NO. 3:23-CV-00813-KDB-DCK
COURT-AUTHORIZED REMINDER NOTICE OF A COLLECTIVE ACTION
LAWSUIT AGAINST BANK OF AMERICA
This is a court authorized reminder notice. This is not a solicitation from a lawyer. You are not being
sued. This notice is to inform you of your right to participate in a lawsuit:
The [date] deadline to join the above-captioned lawsuit is approaching.
You should already have received a copy of the enclosed Court-Authorized Notice of the collective
action lawsuit brought on behalf of current and former employees of Bank of America who worked as
an Enterprise Lending Officer/Sr. Lending Officer (job code SM172), Sr. Wealth Management
Lending Officer - Reg. (job code SM603), Sr. Wealth Management Lending Officer (job code
SM604), WM Lending Officer (job code SM605), Sr. Financial Center Lending Officer – E (job
code SM610), and/or Sr. PB Wealth Management lending Officer (job code SM618) (collectively
“Loan Officer”) on or after July 26, 2021. The Notice explained that you have the right to opt into the
lawsuit by returned the enclosed Consent to Join form. Though the Court has authorized the
distribution of this Notice, the Court has not made any rulings on the merits of the Plaintiffs’ claims
in the Lawsuit and remains neutral. You are under no obligation to respond to this Notice.
To participate in the lawsuit, you must sign and return the enclosed Consent to Join form. It
must be postmarked or otherwise received by Plaintiffs’ Counsel no later than [date 45 days
from mailing of the reminder notice]. If you do not wish to join the lawsuit, you need not do
anything.
If you have any questions, or if you did not receive or no longer have the Notice, you should
immediately contact Plaintiffs’ counsel at 212-696-1999 or email the firm administrator at
jgraf@laxneville.com.
DATED: , 2024
Encl.
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Proposed Text Message Notice:
If you are or were employed by Bank of America and worked as a as a current or former employee of
Bank of America who worked as an Enterprise Lending Officer/Sr. Lending Officer (job code
SM172), Sr. Wealth Management Lending Officer - Reg. (job code SM603), Sr. Wealth
Management Lending Officer (job code SM604), WM Lending Officer (job code SM605), Sr.
Financial Center Lending Officer – E (job code SM610), and/or Sr. PB Wealth Management lending
Officer (job code SM618) (collectively “Loan Officer”) on or after July 26, 2021, you may be eligible
to join a lawsuit for unpaid overtime wages and minimum wage. You can learn more about the case
and how to join by reviewing the Notice and the Consent to Join form here: [LINK to Notice and
Consent to Join form on Plaintiffs’ Counsel’s website].
This message was approved by United States District Court for the Western District of North
Carolina. Though the Court has authorized the distribution of this Notice, the Court has not made
any rulings on the merits of the Plaintiffs’ claims in the Lawsuit and remains neutral. You are
under no obligation to respond. You may contact Plaintiffs’ Counsel with questions at 212-696-
1999 or email the firm administrator at jgraf@laxneville.com.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:23-CV-00813-KDB-DCK
RUSSELL PFEFFER,
FRANK CRONIN,
ROGER ROJAS,
MUHAMED VRLAKU,
JASON AUERBACH,
DAVID DESSNER,
ADAM SHERMAN, AND
GRACE BOZICK,
Plaintiffs,
v.
BANK OF AMERICA
CORPORATION AND
BANK OF AMERICA N.A.,
Defendants.
CONSENT TO JOIN SUIT
I, the undersigned, work or worked for Bank of America Corporation or Bank of America
N.A. (“Bank of America”) as an Enterprise Lending Officer/Sr. Lending Officer (job code
SM172), Sr. Wealth Management Lending Officer - Reg. (job code SM603), Sr. Wealth
Management Lending Officer (job code SM604), WM Lending Officer (job code SM605), Sr.
Financial Center Lending Officer – E (job code SM610), and/or Sr. PB Wealth Management
lending Officer (job code SM618) (collectively “Loan Officers”) on or after July 26, 2021.
I choose to join the above-captioned lawsuit as a plaintiff seeking unpaid overtime and
minimum wage under the Fair Labor standards Act (“FLSA”), 29 U.S.C. § 216(b).
I choose to be represented by Lax & Neville LLP (“Plaintiffs’ Counsel”), and other
attorneys they may choose to associate with. I authorize Plaintiffs’ Counsel to take any steps
necessary to pursue my claims, and I agree to be bound by my attorneys’ decisions concerning the
litigation and settlement. I agree to be bound by any adjudication of this action by the Court,
whether it is favorable or unfavorable. I understand that reasonable costs expended by Plaintiffs’
Counsel on my behalf will be deducted from any settlement or judgment amount on a pro-rata
basis among all other plaintiffs. I hereby agree to legal representation in this action by Plaintiffs’
Counsel at a 33.33% contingency fee rate and understand and agree that they will receive the
attorneys’ fees the court approves as payment for their services.
Case 3:23-cv-00813-KDB-DCK Document 49 Filed 07/26/24 Page 21 of 23

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Date:
Signature:
Print Name:
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Further Information Regarding Consent to Join Form
The information on this page will not be filed in the public record. This information will be used
solely for Plaintiffs’ Counsel to communicate with you and provide you with important, periodic
case status and updates.
Print Name:
Print Address:
City, State, and ZIP:
Telephone Number(s): Home:
Work (Optional):
Cell:
E-mail Address:
To be valid, please return via email, facsimile, or mailed and postmarked by xx, 2024 to:
Jessica Graf, Office
Manager Lax & Neville,
LLP
350 Fifth Ave.
Suite 4640
New York, NY 10118 Telephone: 212-696-1999
Facsimile: 212-566-4531 Email: Jgraf@laxneville.com
Case 3:23-cv-00813-KDB-DCK Document 49 Filed 07/26/24 Page 23 of 23