Dyer, Jeremy et al v. Skogen's Foodliner, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JEREMY DYER, STEVEN WETZEL, and JAMES JU,
individually on behalf of all others similarly situated,
Plaintiff,
v.
SKOGEN’S FOODLINER, INC. d/b/a FESTIVAL
FOODS,
Defendant.
OPINION and ORDER
25-cv-322-jdp
Plaintiffs were department managers for Skogen’s Foodliner, Inc., which does business
under the name Festival Foods and operates more than 40 stores across Wisconsin. Plaintiffs
contend they are entitled to overtime pay under the Fair Labor Standards Act (FLSA) and state
labor laws because Festival misclassified them as salaried employees who are exempt from the
requirements of those laws. Plaintiffs’ theory is that they are not really managers. Rather,
plaintiffs say that their work focuses on customer service and manual labor, and they do not
exercise the type of authority and discretion that would make them exempt from overtime
requirements.
Plaintiffs seek to represent a collective under the FLSA and a class under Federal Rule
of Civil Procedure 23 of similarly situated employees who they believe should have been
classified as hourly workers subject to wage-and-hour laws. Plaintiffs move for approval of a
notice to be sent to their proposed collective. Dkt. 22.
Plaintiffs’ proposed collective is broad, covering all department managers in Wisconsin.
But the evidence submitted by the parties suggests that Festival’s managers have similar
responsibilities across different departments and stores. So the court concludes that plaintiffs
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have met the standard for sending notice to employees. At the certification stage, the court will
reevaluate the evidence on the question whether employees who opted in to the class are
actually similarly situated.
ANALYSIS
Plaintiffs’ motion raises two issues: (1) whether to approve notice to the proposed
collective; and (2) whether to approve the content of the proposed notice and the methods for
sending it.
A. Whether to approve notice
The primary question raised by plaintiffs’ motion is whether the court should authorize
plaintiffs’ counsel to send notice of this lawsuit to other Festival employees. Plaintiffs’
description of the employees whom plaintiffs wish to notify is, to say the least, a mouthful:
All current and former employees employed by Defendant in store
level 	salary-paid 	manager-titled 	or 	supervisor-titled 	positions
(including 	salary-paid 	assistant 	manager-titled 	or 	assistant
supervisor-titled 	positions) 	in 	Wisconsin 	below 	the 	in-store
hierarchical 	level 	of 	Store 	Director 	(in 	departments/areas
including Bakery, Center Store, Deli, Food Court (or Caribou),
Fresh Cut, Frozen/Dairy, HBC-GM, Kitchen or Deli Kitchen,
Grocery, Guest Services, Meat, Natural Foods (or HBC-Natural
Foods, or Natural & Organic), Produce, Receiving, and Wine and
Spirits, etc., and including any additional period of salary-paid
work in a training position/training period for such positions
(including but not limited to any weeks worked in salary-paid
Emerging 	Leader, 	LEAD 	(Leadership 	Exploration 	and
Development) 	or 	GOLD 	(Grocery 	Operations 	Leadership
Development) training programs for such positions), for which
they received a salary during the period beginning May 28, 2022
until entry of judgment in this case, paid by Defendant as if
exempt from federal overtime pay laws, (but excluding Assistant
Store Director, Human Resources-titled (“HR Manager” or “HR
Generalist”) positions, and (after April 2025 restructuring only)
Senior (or “Sr.”) Center Store Manager (or “Director”), or Senior
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(or “Sr.”) Fresh Foods Manager (or “Director”)) (collectively
“DMs” or the “Collective”).
Dkt. 41, at 2.1 The TLDR of this lengthy and complicated list is more straightforward:
department managers, assistant department managers, and those training to become such
managers. The more convoluted phrasing by plaintiffs appears to be an attempt to be
comprehensive and precise so that superficial differences in job titles do not prevent otherwise
similarly situated employees from receiving notice. Mercifully, plaintiffs’ proposed notice
defines the collective in a more straightforward manner:
All current and former employees who worked in salary-paid
department 	manager/supervisor 	positions 	below 	the 	Store
Director/Assistant Store Director level at a Festival Foods store
location anywhere in Wisconsin, at any time during the period
beginning May 28, 2022 through the final disposition of this
matter.
Dkt. 41-1.
Plaintiffs’ request for court-approved notice is based on 29 U.S.C. § 216(b), under
which plaintiffs may file “collective actions” with “other employees similarly situated” against
employers to recover unpaid compensation. The court will begin with an overview of the legal
standard for determining whether employees are similarly situated, followed by an application
of the standard to the facts of this case.
1. 	Overview of the legal standard
Collective actions under the FLSA bear some similarity to class actions under Federal
Rule of Civil Procedure 23 in that both are procedural mechanisms for collectively resolving a
large number of similar claims in one lawsuit. See Espenscheid v. DirectSat USA, LLC, 705 F.3d
1 Citations to documents filed on the docket reflect the page numbers as they appear on the
headers in the court’s electronic case file, not the page numbers on the documents themselves.
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770, 772 (7th Cir. 2013). But there is a key difference between a class action and a collective
action. In class actions, class members are virtually represented by the named plaintiffs and are
bound by the judgment unless they opt out of the class. In collective actions, the default rule
is reversed: potential members of the collective must affirmatively opt in to the case by filing a
notice of consent to join. See Vanegas v. Signet Builders, Inc., 113 F.4th 718, 724 (7th Cir. 2024).
This aspect of collective actions creates a challenge for plaintiffs’ counsel: how do they identify
other similarly situated employees? Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989)
provided one answer, which is to send out a notice approved by the court. But Hoffman-LaRoche
did not set forth a standard for authorizing notice or for determining when employees are
similarly situated.
Many courts, including this one, have applied a two-step approach for determining
whether members of a proposed collective are similarly situated. At the first step, which courts
have called “conditional certification,” the question is whether the plaintiffs have made a
“modest factual showing” that they and potential collective members were subject to a common
policy or practice related to their claims under the FLSA. See, e.g., Wallis v. Oz Mgmt. Grp., Inc.,
No. 21-cv-290-jdp, 2022 WL 2452628, at *1 (W.D. Wis. July 6, 2022); Kelly v. Bluegreen Corp.,
256 F.R.D. 626, 628–29 (W.D. Wis. 2009). If the plaintiffs meet that standard, the court
authorizes the plaintiffs to send notice of the claims to the collective’s members. De Leon v.
Grade A Constr. Inc., No. 16-cv-348, 2017 WL 1957537, at *2–3 (W.D. Wis. May 11, 2017).
At the second step, the defendants can move for “decertification,” at which point the
court uses the facts developed in discovery to re-evaluate whether the members of the collective
are similarly situated. Bitner v. Wyndham Vacation Resorts, Inc., 301 F.R.D. 354, 358 (W.D. Wis.
2014). At that stage, the court applies a more demanding standard that is akin to the one
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applied for class actions. See Jones v. Cruisin’ Chubbys Gentlemen's Club, No. 17-cv-125-jdp, 2018
WL 1175412, at *2 (W.D. Wis. Mar. 6, 2018) (citing Espenscheid v. DirectSat USA, LLC, 705
F.3d 770, 772 (7th Cir. 2013)).
Many district courts in this circuit followed a similar approach for many years without
guidance from the Court of Appeals for the Seventh Circuit. That changed with Richards v. Eli
Lilly & Co., 149 F.4th 901 (7th Cir. 2025), in which the court of appeals decided for the first
time how district courts should determine whether members of a proposed collective are
similarly situated. Relevant to this case, the court of appeals offered the following observations,
guided by its understanding of Hoffmann-LaRoche.
First, it is generally within the district court’s discretion to divide the similarly situated
determination into two steps, with the first step authorizing notice and the second step
certifying a collective. Id. at 910–11. But the two-step approach is not always required or even
appropriate. For example, the court may collapse the two steps into one “if the court is
confident that a similarity dispute can be resolved by a preponderance of the evidence before
notice.” Id. at 913–14.
Second, the terms “conditional certification” and “decertification,” often used by the
courts to describe steps one and two, are misnomers. Id. at 907. At the first step, the court is
not certifying anything, only authorizing plaintiffs’ counsel to send notice to a proposed
collective. It follows that there is no collective to “decertify” at the second step. Id. In light of
this clarification, this court will refer to the first step as approving notice rather than as
conditional certification.
Third, the court of appeals concluded that the standards adopted by other courts for
authorizing notice were unworkable and inconsistent with Hoffmann-La Roche. Id. at 910–11.
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As for the “modest factual showing” standard, the court characterized it as an “overly
permissive notice standard” that requires courts to authorize notice in almost all cases, leading
to “[s]ending notice to plaintiffs who are ineligible to join the collective” and “plac[ing] a
judicial thumb on the plaintiff’s side of the case.” Id. (internal quotation marks omitted). The
court also rejected standards from the Fifth Circuit and Sixth Circuit requiring plaintiffs to
prove similarity by a preponderance of the evidence or by a “strong likelihood.” Id. at 911–12
(citing Swales v. KLLM Transp. Servs., L.L.C., 985 F.3d 430, 434 (5th Cir. 2021), and Clark v.
A&L Homecare & Training Ctr., LLC, 68 F.4th 1003, 1009 (6th Cir. 2023)). The court reasoned
that 	such 	“heightened 	standards” 	would 	impose 	“an 	insurmountable 	barrier 	for 	even
meritorious collective actions” because they would preclude notice in situations in which “the
evidence necessary to establish similarity resides with yet-to-be-noticed plaintiffs.” Richards,
149 F.3d at 911.
After rejecting the notice standards from other courts, the Court of Appeals for the
Seventh Circuit adopted its own standard:
[W]e conclude that to secure notice, a plaintiff must first make a
threshold showing that there is a material factual dispute as to
whether the proposed collective is similarly situated. By this, we
mean that a plaintiff must produce some evidence suggesting that
they and the members of the proposed collective are victims of a
common unlawful employment practice or policy. A plaintiff’s
evidence of similarity need not be definitive, but defendants must
be permitted to submit rebuttal evidence and, in assessing
whether a material dispute exists, courts must consider the extent
to which plaintiffs engage with opposing evidence.
Id. at 913.
This standard appears to be in line with the standard applied by this court in past cases.
Although this court had adopted the “modest factual showing” standard, the application of
that standard was not toothless. For example, in Brink v. American Family Mutual Insurance Co.,
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S.I., No. 24-cv-562-jdp, 2025 WL 1473093 (W.D. Wis. May 22, 2025), which was decided
before Richards, the court denied a motion to conditionally certify a collective of customer
service representatives because the declarations submitted by the plaintiffs were conclusory and
they did not meaningfully respond to evidence submitted by the employer suggesting that
members of the proposed collective did not perform their jobs in the same way. As instructed
by the court of appeals in Richards, this court has considered “the extent to which plaintiffs
engage with opposing evidence” and whether the plaintiffs’ evidence creates a material factual
dispute. That is all to say that the court views its past cases as instructive, even after Richards.
2. 	Similarly situated analysis
When determining whether a proposed collective is similarly situated for the purpose
of an FLSA claim, the court must begin with an understanding of what the claim is, along with
any potential defenses. After all, the question is not simply whether the employees are similar
in the abstract; rather, it is whether they are similar in ways so that it makes sense to decide
their claims in the same lawsuit. See Spoerle v. Kraft Foods Glob., Inc., 253 F.R.D. 434, 439–40
(W.D. Wis. 2008).
In this case, plaintiffs’ claim is that Festival is failing to pay them the overtime rate
when they work more than 40 hours a week, as required by the FLSA. 29 U.S.C. § 207(a)(1).
Festival admits that it does not pay plaintiffs overtime, but it says that it does not have to
because plaintiffs’ work falls into FLSA exemptions for “executive” or “administrative”
positions or a combination of the two. See 29 U.S.C. § 213(1).
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The FLSA doesn’t define what “administrative” or “executive” work is under § 213(1),
but 	Department 	of 	Labor 	(DOL) 	regulations 	do.2 	Administrative 	work 	includes 	two
requirements: (1) the employee’s “primary duty” is “office or non-manual work directly related
to the management or general business operations of the employer or the employer’s
customers”; and (2) the “primary duty includes the exercise of discretion and independent
judgment with respect to matters of significance.” 29 C.F.R. § 541.200(a). Executive work
includes three requirements: (1) the employee’s “primary duty is management of the enterprise
in which the employee is employed or of a customarily recognized department or subdivision
thereof;” (2) the employee “customarily and regularly directs the work of two or more other
employees;” and (3) the employee has the “authority to hire or fire other employees or whose
suggestions and recommendations as to the hiring, firing, advancement, promotion or any
other change of status of other employees are given particular weight.” 29 C.F.R. § 541.100.3
Employees may also qualify as exempt if their “primary duty involves a combination of exempt
administrative and exempt executive work.” 29 C.F.R. § 541.708.
2 Both sides assume that DOL regulations defining FLSA exemptions remain binding, even
after Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024) limited the deference that courts
may give agency interpretations of statutes. Deference may still apply when Congress expressly
delegates authority to the agency on the matter at issue. Id. at 394–96. The FLSA gives DOL
the authority to “define[ ] and delimit[ ]” the terms of an exemption, 29 U.S.C. § 213(a)(1),
so it appears that deference is still appropriate. See Mayfield v. United States Dep’t of Lab., 117
F.4th 611, 617–18 (5th Cir. 2024) (agency’s determination regarding scope of exemption still
entitled to deference after Loper Bright). In any event, no party raises this issue, so the court
need not decide it now.
3 The DOL regulations also include a minimum salary as a requirement for executive and
administrative work. See 29 C.F.R. § 541.100(a)(1); 29 C.F.R. § 541.200(a)(1). Neither side
suggests there are any relevant differences among the salaries of the employees in the proposed
collective for the purpose of determining whether they qualify for an exemption, so the court
will not consider that issue.
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Based on these regulations, key questions for the similarly situated analysis will be
whether the proposed collective members have sufficiently similar “primary duties” and
whether they have sufficiently similar authority over other employees. DOL defines “primary
duty” as “the principal, main, major or most important duty that the employee performs.” 29
C.F.R. § 541.700(a). The agency elaborates as follows:
Determination of an employee’s primary duty must be based on
all the facts in a particular case, with the major emphasis on the
character of the employee’s job as a whole. Factors to consider
when determining the primary duty of an employee include, but
are not limited to, the relative importance of the exempt duties as
compared with other types of duties; the amount of time spent
performing exempt work; the employee’ s relative freedom from
direct supervision; and the relationship between the employee's
salary and the wages paid to other employees for the kind of
nonexempt work performed by the employee.
. . . . The amount of time spent performing exempt work can be a
useful guide in determining whether exempt work is the primary
duty of an employee. Thus, employees who spend more than 50
percent of their time performing exempt work will generally
satisfy the primary duty requirement. Time alone, however, is not
the sole test, and nothing in this section requires that exempt
employees spend more than 50 percent of their time performing
exempt work. Employees who do not spend more than 50 percent
of their time performing exempt duties may nonetheless meet the
primary duty requirement if the other factors support such a
conclusion.
Id. § 541.700(a)–(b). Thus, key factors in determining an employee’s primary duties are the
amount of time spent on those duties and the relative importance of those duties.
The court’s next task is to evaluate the evidence submitted by the parties regarding
whether the employees in the proposed collective are similarly situated (and whether it is
appropriate to send notice). The proposed collective is broad, spanning more than 40 stores,
most departments within those stores, different levels of management (managers, assistant
managers, and manager trainees), and a time frame that straddles some management
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restructuring in April 2025. But plaintiffs say that Festival’s management hierarchy is tightly
constrained 	by 	corporate 	policies 	and 	procedures, 	that 	different 	stores 	and 	different
departments are run the same way, that both managers and assistant managers perform mostly
nonexempt work, and that the restructuring did not significantly affect the responsibilities of
the proposed collective.
To support their contentions, plaintiffs rely primarily on testimony of former (and some
current) department managers and assistant managers, Dkts. 26–40, and Festival’s job
descriptions for many of the department manager positions. Dkt. 25-2 and Dkt. 25-3. As for
the job descriptions, plaintiffs say that they “do not vary in any material way between the
various department manager positions.” Dkt. 41, at 10. Plaintiffs summarize the descriptions
as identifying the same general duties and requirements for each position. They also summarize
job descriptions for store directors and human resource managers as evidence that they were
the ones primarily responsible for management of the stores and employees.
As for the declarations, they are from 15 current and former department managers who
worked in 12 different positions at 16 different Festival stores, acted as a substitute department
manager at 15 additional Festival stores, and observed other department managers while the
declarant was working an hourly position at 2 additional stores. Plaintiffs summarize the
following testimony in their brief:
• 	Department managers consistently worked more than 40 hours in a week.
Dkt. 41, at 13 (citing eight declarations).
• 	All of the stores had the same management hierarchy, with department managers
at the bottom of the hierarchy. Id. at 13,19 (citing 15 declarations).
• 	Department managers spent most of their time performing manual labor and
customer service. Id. at 14 (citing 15 declarations).
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• 	The amount of hours that department managers could schedule hourly workers
was tightly constrained, so the managers often had to complete tasks of the
hourly workers. Id. at 14 (citing 13 declarations). The amount of labor hours
allotted to a department did not distinguish between a manager and an hourly
worker. Id.
• 	During weekly meetings, department managers received instructions from
higher-ranking officers regarding promotions, new products, and merchandising.
Id. at 16 (citing 14 declarations).
• 	Standard operating procedures governed many aspects of the department
manager’s job. Id. (citing one declaration).
• 	Department managers went through the same training programs regardless of
store 	location. 	Department 	managers 	transferred 	stores 	or 	subbed 	for
department managers in other stores without requiring additional training. Id.
at 17–18 (citing seven declarations).
This is the type of evidence that numerous district courts have relied on when
authorizing FLSA notice in other cases involving grocery store managers, including in one case
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decided in the Seventh Circuit after Richards. 4 Plaintiffs did not submit declarations from
employees in every store and in every position included in the collective, but the experience of
the employees who did submit declarations is broad enough to infer in the absence of contrary
evidence that their experience is representative of the collective, at least for the purpose of
approving notice.
Festival does not dispute plaintiffs’ summary of their evidence, and it cites no cases
involving similar facts and evidence in which the court did not approve notice. Instead of case
law, Festival cites declarations of nearly 50 Festival employees who are department managers
or store directors. Dkts. 44–92. Festival also submits the expert report of Robert Crandall, who
4 See Gower v. Roundy’s Supermarkets Inc., No. 24 C 9346, 2025 WL 3537391, at *3–4 (N.D. Ill.
Dec. 10, 2025) (employee testimony that managers are subject to the same hierarchy and
perform the same duties as hourly workers); see also Vye v. Hannaford Bros. Co., LLC, No. 2:24-
CV-00339-NT, 2025 WL 2640068, at *4 (D. Me. Sept. 15, 2025) (employee testimony that
department managers were all classified as exempt, were not paid overtime, and primarily
performed the same manual work as hourly employees); Dempsey v. Smith’s Food & Drug Centers,
Inc., No. 3:24-CV-00269-ART-CSD, 2025 WL 326644, at *6–7 (D. Nev. Jan. 28, 2025)
(employee testimony that most of the work that they performed was comprised of non-exempt
tasks); Fitch v. Giant Eagle Inc., No. 2:18-CV-01534-RJC, 2020 WL 8620076, at *4 (W.D. Pa.
Oct. 28, 2020), report and recommendation adopted, No. 218CV01534RJCCRE, 2021 WL
704147 (W.D. Pa. Feb. 23, 2021) (employee testimony that team leaders were are salaried,
subject to the same policies, and spent most of their time providing customer service and
performing manual labor); McColley v. Casey’s Gen. Stores, Inc., 559 F. Supp. 3d 771, 778 (N.D.
Ind. 2021) (declarations that store managers were salaried, regularly worked more than 40
hours 	per 	week, 	and 	primarily 	performed 	non-managerial 	tasks); 	DePyper 	v. 	Roundy’s
Supermarkets, Inc., No. 20-cv-2317, 2020 WL 6565225, at *3 (N.D. Ill. Nov. 9, 2020)
(employee declarations that they did not perform managerial duties); Aiuto v. Publix Super
Markets, Inc., No. 1:19-CV-04803-LMM, 2020 WL 2039946, at *6 (N.D. Ga. Apr. 9, 2020)
(16 employee declarations that department managers primarily performed non-exempt work
and were subject to the same policies); Kujat v. Roundy’s Supermarkets Inc., No. 18 C 5326, 2019
WL 1953107, at *3 (N.D. Ill. May 2, 2019) (employee testimony that managers had same
responsibilities and were subject to the same corporate policies); Davine v. Golub Corp.,
No. CIV.A. 14-30136-MGM, 2015 WL 1387922, at *2–3 (D. Mass. Mar. 25, 2015)
(employee declarations that they worked within identical hierarchical structures, consistently
worked more than 40 hours, and had same types of responsibilities, even when transferring
stores).
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“perform[s] economic and statistical analyses in connection with litigation matters.” Dkt. 90,
at 4.5 But most of Festival’s arguments about this evidence are focused on whether department
managers’ primary duties are covered by the administrative and executive exemptions. For
example, Festival contends that its policies “are not unlawful,” and its “lawful policies and job
descriptions do not support misclassification.” Dkt, 42, at 34, 37. But those are not the
questions before the court. The question is whether there is enough evidence to show at least
a material factual dispute that the proposed collective is similarly situated so that notice to the
collective should be approved, not whether Festival is entitled to summary judgment on the
merits. The court of appeals made this clear in Richards: “[T]he question [is] whether common
issues of fact or law make it more efficient to resolve plaintiffs’ claims together. This inquiry
should not devolve into an early adjudication of the merits.”149 F.4th at 914–15. The district
court may consider merits issues only if doing so is necessary to also determine whether
employees are similarly situated. Id.
In this case, Festival’s position is not that some department members are exempt and
some are not. Festival does not point to differences between the ways different stores operate
or to any meaningful differences in the level and type of responsibility of the employees who
submitted declarations for Festival. Plaintiffs acknowledge that there was a restructuring of
positions in 2025, but Festival does not contend that the restructuring significantly changed
the responsibilities of proposed collective members. Rather, Festival’s position is that all
members of the collective are properly classified as exempt.
5 Plaintiffs object to Randall’s report as procedurally improper because they did not have an
opportunity to depose Randall, and he relies on evidence they did not have access to. This is a
fair point, but the court need decide whether to disregard the report on procedural grounds
because the report will not change the outcome of the motion even if the court considers it.
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It is not even clear whether there are material disputes between Festival’s declarations
and plaintiffs’ declarations regarding the types of responsibilities they perform. The difference
seems to be about what the employees emphasize. In the declarations submitted by plaintiffs,
the employees emphasize department managers’ responsibilities related to manual labor and
customer service; in the declarations submitted by Festival, the 	employees 	emphasize
department managers’ managerial responsibilities. But none of the employees deny that
department managers have both types of responsibilities, and the parties do not identify any
direct disputes over the types of responsibilities they perform and how often. The real dispute
appears to be a legal one, which is whether the type of work the department managers do
qualifies for an exemption. If Festival is correct that its department managers’ primary duties
are administrative, executive, or combination of both, that is an issue that can be decided
collectively, so it does not counsel against sending notice to the collective.
Festival’s expert, Robert Crandall, does identify differences among the positions listed
in the proposed collective. For example, he says that each department involves different
responsibilities, different numbers of employees, and different labor hours and that each
manager receives a different salary. Dkt. 90, at 5–6. But missing from the report or Festival’s
brief is any explanation of why these differences matter. As already discussed, a defendant
cannot defeat a motion to send notice simply by pointing to differences of any kind among the
proposed collective members. Rather, the important question is whether there are differences
among the employees that would make it impractical to resolve the claims collectively. See
Spoerle, 253 F.R.D. at 439–40. Neither Festival nor Crandall explain how the differences in the
number of employees, labor hours, or salaries would matter to the question of whether
department managers qualify for the administrative or executive exemption. Differences in
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responsibilities could be relevant to that issue, but Crandall simply lists differences without
explaining how they are relevant to the exemption. See Dkt. 90, at 21–28. Of course, a bakery
manager is not involved in slicing meat, and the deli manager is not involved in baking bread.
But Crandall does not point to differences among department managers suggesting that some
of them perform significantly more or less administrative or executive work than others. See
Vye, 2025 WL 2640068, at *4 (approving notice for managers of different departments despite
differences in specific tasks performed in each department). So the court concludes that
plaintiffs have presented sufficient evidence of similarity to authorize notice to the proposed
collective.
Festival 	objects 	that 	notice 	is 	not 	appropriate 	because 	“at 	least 	48” 	(out 	of
approximately 730) department managers signed separation agreements in which they released
all claims against Festival. Dkt. 42, at 26. Festival cites Loch v. American Family Mutual Insurance
Co., in which the court held that employees who had signed severance agreements were not
similarly situated to employees without such agreements. No. 22-cv-213-jdp, 2023 WL
2877598, at *3 (W.D. Wis. Mar. 3, 2023). This is consistent with the rule that named
plaintiffs may be inadequate class representatives if they are subject to different defenses from
the rest of the class. See Santiago v. City of Chicago, 19 F.4th 1010, 1018–19 (7th Cir. 2021).
But Loch did not hold that employees cannot proceed as a collective if any employee has a side
agreement with the employer. In fact, the court concluded that notice to the collective was
appropriate, holding only that employees with severance agreements could not be included in
the collective. 2023 WL 2877598, at *3.
In this case, Festival has not produced a signed agreement from any employee, alleged
that any of the named plaintiffs signed a separation agreement, or even identified which
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employees signed an agreement. In Bigger v. Facebook, Inc., the court held that “[t]he employer
seeking to exclude employees from receiving notice has the burden to show, by a preponderance
of the evidence, the existence of a valid arbitration agreement for each employee it seeks to
exclude from receiving notice.” 947 F.3d 1043, 1050 (7th Cir. 2020). Bigger was about
arbitration agreements rather than separation agreements, but Festival identifies no reason why
the rule should be any different based on the type of agreement. In both situations, the question
is whether an agreement bars an employee from participating. Festival ignores Bigger, even
though plaintiffs relied on the case in their opening brief.
Festival has failed to identify anyone in the proposed collective who should not receive
notice, so the court will not exclude anyone at this time. At the certification stage, Festival may
seek to exclude any employee who is subject to a separation agreement. But Festival will need
to be prepared to explain why the appropriate response is not to create a separate collective
rather than simply exclude those employees or deny certification. See Alvarez v. City of Chicago,
605 F.3d 445, 448–51 (7th Cir. 2010).
Plaintiffs should not construe the court’s approval of notice to mean that certification
of a class or collective is a foregone conclusion. A determination whether a position is exempt
requires “a thorough, fact-intensive analysis of the employee’s employment duties and
responsibilities.” Schaefer–LaRose v. Eli Lilly & Co., 679 F.3d 560, 572 (7th Cir. 2012). So it
remains to be seen whether a more complete record will reveal that individual differences
overwhelm any similarities. Other courts have refused to certify classes of store managers across
different departments and locations when deposition testimony revealed that there was
variation among the managers regarding the amount of executive and administrative work they
performed. See, e.g., DePyper v. Roundy’s Supermarkets Inc., No. 20 C 2317, 2025 WL 2430460,
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at *6–8 (N.D. Ill. Aug. 22, 2025) (“The current record reflects that the ‘primary duty’ inquiry—
and any other individualized elements present within the FLSA’s exemptions—cannot be
answered in this dispute without an analysis into a specific department manager’s work
routine.”); Levine v. Vitamin Cottage Nat. Food Markets, Inc., No. 20-CV-00261-STV, 2023 WL
3648684, at *9–10 (D. Colo. May 25, 2023) (“The opt-ins’ (and named Plaintiff’s) discovery
responses and testimony reveal material disparities in the extent of management that they
engaged in.”).
At the certification stage, plaintiffs will have to show that it is feasible to decide the
exemption issue across the whole class and collective. See Richards, 149 F.4th at 912
(“[P]laintiffs must establish their similarity at the certification stage by a preponderance of the
evidence.”). 6 For example, plaintiffs will have to show that both managers and assistant
managers are appropriately grouped together as well as managers across departments and
stores. If they cannot do that, they will have to consider whether a narrower class and collective
are appropriate. At this point, however, the evidence is sufficient to approve notice to the
proposed collective.
B. Whether to approve content and methods of notice
Plaintiffs have submitted a proposed notice to be sent to the members of the proposed
collective. Dkt. 44-1. Defendants object to both the content of the notice and the proposed
methods for disseminating it.
6 In a concurring opinion, Judge Hamilton stated the court’s statements regarding the burden
at the certification stage were dicta because they were not part of the issues on review. Richards,
149 F.4th at 915. Even if that is correct, this court will follow reasoned guidance provided by
the court of appeals, even if it is technically nonbinding, in the absence of compelling reasons
not to.
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1. 	Content of notice
The court reviewed the content of the notice and will require only two changes. First,
both the proposed mail and text notices state that the court has “ordered” that the notice be
sent. Dkt. 41-1, at 2, 7. Those are misstatements. The court has granted plaintiffs’ request to
send notice, but it has not ordered them to do so. So the word “ordered” should be changed to
“authorized.”
Second, the notice includes the following sentence: “The Court has conditionally
allowed or ‘certified’ this lawsuit as a collective action, which may affect you.” Id. at 3. That is
another misstatement. As already discussed, Richards explained that “conditional certification”
is a misnomer: the court has approved notice, it has not certified a collective, conditionally or
otherwise. Plaintiffs should remove that sentence. Other portions of the notice explain that the
court has authorized the notice, so the sentence about conditional certification can be deleted
without replacement.
The court will overrule Festival’s other objections to the notice. First, Festival objects
to sending notice to employees going back three years because a three-year statute of
limitations applies only to willful violations, something that “Plaintiffs have not shown.”
Dkt. 42, at 48. That is more of an objection to scope of the collective rather than the content
of the notice, but, either way, it is a merits issue, so it is premature to consider it now. Plaintiffs
have alleged willful violations in their complaint, which is all they were required to do at this
point. Luna Vanegas v. Signet Builders, Inc., No. 21-cv-54-jdp, 2023 WL 4926237, at *10 (W.D.
Wis. Aug. 2, 2023). If Festival believes that plaintiffs cannot prove willfulness, Festival can
move for summary judgment on that issue.
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Second, Festival objects to sending notice to anyone with a separation agreement. The
court has already addressed that issue: Festival has not identified anyone who entered a
separation agreement, so that issue will have to be addressed at the certification stage.
Third, Festival contends that the notice does not make it sufficiently clear that the court
has not taken a position on the merits. But the notice states in bold letters that it “is not an
expression by the Court of any opinion concerning the alleged claims.” Dkt. 41-1, at 5. Festival
does not explain why that language is inadequate.
Fourth, Festival contends that employees should be warned that they may have
discovery obligations if they join the lawsuit. The court has previously rejected this argument,
both because it is misleading (“[a]n employee could be required to sit for a deposition or turn
over documents regardless whether she joins the lawsuit,” Reilly v. Century Fence Co., No. 18-
cv-315-jdp, 2018 WL 6573460, at *9 (W.D. Wis. Dec. 13, 2018)), and because the proposed
language could be viewed as a deterrent to join the lawsuit (“[p]arading a list of unpleasant
consequences may chill otherwise legitimate interest in joining this collective action,” Campeau
v. NeuroScience, Inc., 86 F. Supp. 3d 912, 920 (W.D. Wis. 2015)). Festival does not acknowledge
the court’s prior rulings or explain why the court should reach a different conclusion in this
case.
Fifth, Festival says that the notice fails to “fully explain Plaintiffs’ counsel’s contingency
fee arrangement or that opt-ins could owe fees.” Dkt. 42, at 49. The proposed notice includes
the following information about these issues:
Plaintiffs’ attorneys are representing the Plaintiffs, and will
represent you, free of charge which means you will not have to
pay anything to the attorneys whether the case is successful or
not. If the case is successful, the Court can order the Defendant
to pay the reasonable costs and attorneys’ fees of your attorneys.
The Plaintiff’s attorneys listed above will pay all the costs
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associated 	with 	this 	case 	and 	will 	only 	receive 	fees 	and
reimbursement of costs if there is a settlement or judgment.
Should Plaintiffs succeed at trial, Defendant will be statutorily
required to pay Plaintiffs attorneys’ fees. Should the Parties settle
this matter, Plaintiffs’ attorneys’ fees may be paid as a percentage
of the settlement amount.
Dkt. 41-1, at 5. This language explains how the attorneys will be paid and is comparable to
language that the court has approved in other cases. See, e.g., Loch v. Am. Fam. Mut. Ins. Co.,
No. 22-cv-213-jdp, 2023 WL 3180859, at *3 (W.D. Wis. May 1, 2023). Festival does not
explain what part of this passage is inadequate, and it does not propose any alternative
language. Telling employees that that they could “owe” fees is unnecessary because counsel has
represented that it will pay all costs associated with the case and will only collect fees from a
judgment or settlement. See Reilly, 2018 WL 6573460, at *9.
Sixth, Festival says that the notice “fails to accurately articulate Defendant’s litigation
position.” Dkt. 42, at 49. The notice states the following about Festival’s position: “Defendant
denies Plaintiffs’ allegations. Defendant contends that Plaintiffs and the other current and
former salary-paid managers/supervisors below Store Director level have been, and continue to
be, properly paid under the FLSA.” Dkt. 41-1, at 3. Festival neither explains why that
statement is deficient nor offers alternative language, so the court will not require a change.
Seventh, Festival says that the notice fails to explain that employees may retain their
own lawyers. That is inaccurate. The notice states: “You have the right to retain and consult
with an attorney of your own choosing at your expense on whether to opt into the lawsuit, and
you are free to take action on your own.” Id. at 5. Again, Festival does not explain why that
language is inadequate.
If the court overrules its objections, Festival asks for an opportunity to “meet and confer
[with plaintiffs] over the proposed notice” and to present any disputes to the court. Dkt. 42,
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at 51. But this was Festival’s opportunity to present any disputes to the court. Festival identifies
no reason why additional conferring or briefing is necessary.
2. 	Methods of notice
The parties dispute three issues related to the method of notice. First, Festival objects
to plaintiffs sending notice by mail, email, and text message, stating that three types of notice
are “excessive” and “amount[] to solicitation.” Dkt. 42, at 50. The court will overrule this
objection. The purpose of notice is to reach all of the intended recipients. Many of the
individuals in the proposed collective are no longer Festival employees, so residential addresses
could be outdated. On the other hand, spam filters could block notice sent by email or text
message. Using multiple types of notice better ensures that all potential class members will
have an opportunity to decide for themselves whether to opt in. The number of methods
employed does not change the content of the notice, and none of the methods are intrusive, so
the likelihood of perceived solicitation is low. The court has approved all three types of notice
in past cases. Loch, 2023 WL 3180859, at *3.
Second, Festival objects to the inclusion of a link in the proposed text message. The link
allows the recipient to opt in online, using individualized login credentials. Festival says that
“courts have criticized [similar links] as unduly suggestive.” Dkt. 42, at 50. But Festival does
not identify any examples of the courts that have offered such criticism. In fact, this court
approved a similar opt in procedure in Loch, 2023 WL 3180859, at *4. Giving employees a
convenient way of opting in does not make the notice unduly suggestive.
Third, and finally, the parties dispute whether plaintiffs should be allowed to submit
“reminder” notices 30 days after the first notice was sent. This court has repeatedly rejected
requests for multiple rounds of notice: “The purpose of notice is simply to inform potential
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class members of their rights. Once they receive that information, it is their responsibility to
act as they see fit.” Campeau, 86 F. Supp. 3d at 919 (quoting Witteman v. Wis. Bell, Inc., No. 09–
cv–440, 2010 WL 446033, at *3 (W.D. Wis. Feb. 2, 2010)). In other words, sending additional
rounds of notice to individuals who have already received notice could be reasonably construed
as solicitation or “judicial encouragement to join the lawsuit.” Schroeder v. Humana Inc., No. 12–
cv–137, 2012 WL 5931886, at *9 (E.D. Wis. Nov. 27, 2012); see also DePyper, No. 20-cv-2317,
2020 WL 6565225, at *5 (adopting same reasoning).
Plaintiffs contend that a second round of notice is needed to ensure that everyone in
the proposed collective learns about the case. But that is the reason the court is approving three
different kinds of notice. Plaintiffs are not proposing a different method for providing the
second round of notice, just the same methods a second time. Plaintiffs identify no reason why
a second round of notice using the same methods would likely reach a significant number of
additional people. Rather, the true purpose of the notice appears to be to encourage recipients
who are on the fence about joining or simply were not motivated to join after the first notice.
But that is not a proper purpose for a court-authorized notice. The court will approve one
round of notice with a 60-day opt-in period.
Plaintiffs ask the court to direct Festival to provide them with the names, mailing and
personal email addresses, personal telephone numbers, dates worked in positions within the
collective definition, and employee ID number if assigned, in electronically importable (Excel)
format. Festival does not raise any specific objections to this request, so the court will grant it.
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ORDER
IT IS ORDERED that:
1. 	Plaintiffs’ motion to authorize notice to the proposed collective, Dkt. 22, is
GRANTED.
2. 	Defendant Skogen’s Foodliner, Inc. may have until March 4, 2026, to provide
plaintiffs with the names, mailing and personal email addresses, personal telephone
numbers, dates worked in positions within the collective definition, and employee
ID number if assigned, in electronically importable (Excel) format.
3. 	Plaintiffs’ proposed notices are APPROVED with the modifications discussed in the
opinion. Plaintiffs may send notice by mail, email, and text message, allowing 60
days to opt in. Plaintiffs may have until March 25, 2026, to issue the notices.
Entered February 11, 2026.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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