UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Transcription

1 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS NICHOLAS CHALUPA, ) Individually and on Behalf of All Other ) No. 1:12-cv JCB Persons Similarly Situated, ) ) Plaintiff ) ) v. ) ) UNITED PARCEL SERVICE, INC. ) ) Defendant ) ) REVISED STIPULATION AND SETTLEMENT AGREEMENT IT IS HEREBY STIPULATED, by and between Plaintiff Nicholas Chalupa and United Parcel Service, Inc., subject to the approval of the Court, that this class action is hereby compromised and settled pursuant to the terms and conditions set forth below in this Stipulation and Settlement Agreement. Defined Terms 1. Action means the action entitled Nicholas Chalupa v. United Parcel Service, Inc, C.A. No. 1:12-cv JCB, pending in the United States District Court for the District of Massachusetts. 2. Class or Class Member(s) means Plaintiff and all other individuals who worked for Defendant during the Class Period as a temporary/seasonal delivery driver working out of facilities located in the Commonwealth of Massachusetts Class Period means the period between May 15, 2009 and December 31, Complaint means the Class Action Complaint filed in the Action on May 15,

2 5. Court means the United States District Court for the District of Massachusetts. 6. Defendant means United Parcel Service, Inc., a Delaware corporation with its headquarters in Georgia ( UPS ). 7. Defendant s Counsel means Murtha Cullina LLP. 8. Effective Date means the date by which all of the following have occurred: (i) the Settlement has been approved in all material respects by the Court (unless any material change has been agreed upon by the Parties); (ii) the Final Order and Judgment has been entered by the Court; and (iii) the time to appeal the Final Order and Judgment has expired without the filing of any appeals, or, in the event of any appeal, an Order has been entered dismissing the appeal or affirming the Final Order and Judgment, and any time period for further appeal, including a petition for writ of certiorari, has expired. The Effective Date shall occur even if an appeal is taken from or review is sought of the Final Order and Judgment, if such appeal(s) or petition(s) for review concern(s) solely one or more of the following: (i) any award to Plaintiff s Counsel of attorneys fees and expenses, or (ii) the allocation of the Settlement Fund among Class Members. 9. Fee Award means the sum of $136,500 that Defendant has agreed to pay to Plaintiff s Counsel for fees and reimbursement of expenses, subject to approval by the Court, for the services rendered to the Plaintiff and the Class in the Action. 10. Final Approval means that the Final Order and Judgment has been entered and the Court has granted final approval of the Settlement and awarded its Fee Award and Incentive Award, if any. 11. Final Approval Hearing means a hearing held before the Court to consider the final approval of the Settlement, and determination of a Fee Award and Incentive Award. 2

3 12. Incentive Award means such award as the Court may authorize to be paid by Defendant to Plaintiff in recognition of his efforts in obtaining the benefits of the Settlement for the Settlement Class. 13. Objection Deadline means the date 45 days following the date on which the Settlement Administrator mails the Settlement Notice to the Class. 14. Opt-Out Deadline means the date 45 days following the date on which the Settlement Administrator mails the Settlement Notice to the Class Members. 15. Parties means Plaintiff Nicholas Chalupa and Defendant United Parcel Service, Inc. 16. Plaintiff means Nicholas Chalupa of Newburyport, Massachusetts. 17. Plaintiff s Counsel means Shapiro Haber & Urmy LLP and Mark D. Stern P.C. 18. Preliminary Approval means that the Court has entered an order substantially in the form attached hereto as Exhibit A, preliminarily approving the terms and conditions of this Stipulation, including the form and manner of providing notice to the Class Members. 19. Released Claims means any and all claims, demands, debts, damages, rights, liabilities, causes of action, lawsuits, complaints, and liabilities of any kind, whether known or unknown, related to the payment of wages that the Class Members may have against UPS that were asserted or could have been asserted in the Action or that are based upon, arise out of, or relate to the facts alleged in the Action. Released Claims include claims that are known or unknown, suspected or unsuspected, contingent or non-contingent, or heretofore have existed, upon any theory of law or equity. Without limiting the generality of the foregoing, Released Claims includes any and all such Claims arising under the wage and hour laws and regulations of the Commonwealth of Massachusetts for unpaid wages during the Class Period. The Class 3

4 Members stipulate and agree that upon the Effective Date, they shall be deemed to have, and by operation of the Final Order and Judgment shall have, expressly waived and relinquished, to the full extent permitted by law, any Released Claims. The Released Claims do not include any individual claims, demands, rights, liabilities, and causes of action of any Class Members that are currently pending in any other judicial or administrative proceeding. 20. Settlement, Stipulation or Agreement means the terms and conditions set forth in this Stipulation and Settlement Agreement. 21. Settlement Administrator means Berdon LLP; provided, the identity of the Settlement Administrator may be changed with the written consent of the Parties. 22. Settlement Award means the gross payment amount that a Class Member is entitled to receive from the Settlement Fund. 23. Settlement Fund means the sum of $180,500 to be paid by Defendant pursuant to the terms of this Settlement. 24. Settlement Notice means a notice to the Class Members substantially in the form of Exhibit A-1 attached hereto or in such other form as may be approved by the Court Final Order and Judgment means an order and judgment issued by the Court, in substantially the form attached hereto as Exhibit B, approving the Settlement and this Stipulation as binding upon the Parties and the Class Members and dismissing the Complaint with prejudice. Procedural History 26. Plaintiff filed this Action on May 15, 2012, pursuant to Mass. G.L. c. 149, 148, 150, relating to Defendant s alleged failure to compensate Plaintiff and the Class Members for hours worked during meal breaks. 4

5 27. Defendant answered the complaint on July 11, On September 19, 2012, the Parties appeared for a scheduling conference with the Court. The Parties proposed to the Court that they engage in a period of informal discovery to make an assessment of the merits of the claims, defenses and damages involved in the case. The Court entered a Scheduling Order on September 19, 2012, ordering a period of informal discovery until January 15, Following the conference, the Parties exchanged Initial Disclosures and engaged in considerable informal discovery that included the analysis of hundreds of pages of documents produced by both Parties, the deposition of Plaintiff Nicholas Chalupa and numerous meetings and telephone conferences between the Parties Counsel. 30. On January 14, 2013, the Parties filed a Joint Motion for additional time to engage in informal discovery in an effort to reach a resolution of the case. The Court granted that motion on January 14, 2013, and scheduled a status conference for February 20, At the conference on February 20, 2013, the Parties reported to the Court that they had made progress in connection with their informal discovery exchange, including the completion of Plaintiff s deposition, and requested further time to continue these efforts. 32. On February 21, 2013, the Court entered an Amended Scheduling Order. 33. The Parties continued these efforts, and also engaged in settlement negotiations, culminating in a meeting on May 14, 2013 at which a settlement in principle was agreed upon. The Parties thereafter engaged in further negotiations concerning the details of a settlement, and commenced negotiations concerning the fees and expenses to be paid to Plaintiff s Counsel. 34. On May 17, 2013, Plaintiff s Counsel produced their time records to Defendant s Counsel for examination in connection with the negotiation of fees and expenses to be paid by 5

6 Defendant to Plaintiff s Counsel under the Settlement. 35. The Parties engage in several subsequent negotiations by telephone and , and on July 3, 2013, the Parties reached agreement on the materials terms of a Settlement to be submitted to the Court for approval that were then memorialized in this Stipulation. Stipulation for Class Certification 36. The Parties stipulate and agree to the conditional certification of the Class for purposes of this Settlement only. Should this Settlement not become final, such stipulation to class certification shall become null and void and shall have no bearing on, and shall not be admissible in connection with, the issue of whether or not certification would be appropriate in a non-settlement context. Defendant expressly reserves its right to oppose class certification should this Settlement not become final. Inadmissibility of Settlement Agreement 37. Except for purposes of settling this Action pursuant to the terms of this Agreement, neither the Settlement, nor any of its terms, nor any document, statement, proceeding or conduct related to this Agreement, nor any reports or accounts thereof, shall in any event be construed as, offered or admitted in evidence for any purpose adverse to either Party, in any further proceeding in this Action, or any other civil, criminal or administrative action or proceeding except for purposes of settling this Action pursuant to the terms of this Agreement or enforcing the terms of this Agreement. Investigation in the Class Action 38. The Parties have conducted considerable investigation of the facts and law relevant to Plaintiff s claims and Defendant s defenses, including an analysis of hundreds of pages of documents and records produced by the Parties, a deposition of Plaintiff and informal 6

7 discussions between the Parties Counsel. Benefits of Settlement to the Class Members 39. Plaintiff has considered the expense and length of the proceedings that would be necessary to continue the Action against the Defendant through trial. Plaintiff has also taken into account the uncertainty and risk of further litigation, and the difficulties and delays inherent in such litigation, including the potential risks associated with a motion for class certification. Based on the foregoing, Plaintiff has determined that the Settlement set forth in this Agreement is fair, adequate and reasonable, and is in the best interests of the Class Members. Plaintiff s Claims 40. Plaintiff has claimed and continues to claim that the Released Claims have merit and give rise to Defendant s liability. Should this Settlement not be finally approved by the Court, neither this Agreement nor any documents referred to herein, nor any action taken to carry out this Settlement is, or may be construed or used as, an admission by or against Plaintiff as to the merits or lack thereof of the claims asserted by Plaintiff. Defendant s Denial of Wrongdoing 41. Defendant contends that all of its employees have been compensated in compliance with the law, that their conduct was not willful with respect to any alleged failure to pay any wages, and that it acted in good faith at all relevant times. Defendant has denied and continues to deny each of the claims alleged by Plaintiff in the Action. Defendant denies any wrongdoing or legal liability and believes that it has valid defenses to Plaintiff s and putative Class Members claims. Except for purposes of this Settlement, neither this Agreement nor any action taken to carry out this Settlement, may be in any way used as an admission, concession or indication by or against Defendant of any fault, wrongdoing or liability whatsoever, including 7

8 any concession that certification of a class other than for the purposes of this Settlement would be appropriate in this or any other case. Releases by Class Members 42. All Class Members stipulate and agree that, upon the Effective Date, they shall be deemed to have, and by operation of the Final Order and Judgment shall have, expressly waived and relinquished the Released Claims. Prior Releases 43. No claim of any Class Member under this Settlement shall be barred or limited by reason of any release or waiver of any kind previously executed by him or her relating to compensation paid or allegedly owed to such Class Member by reason of any work performed during the Class Period. Defendant believes that any such releases and/or waivers executed by its former employees are valid and enforceable, and Defendant s agreement as part of this Settlement to allow Class Members who have previously released or waived claims against the Defendant to make a claim under this Settlement does not affect the validity of any other release or waiver to which the Defendant is a party. Nothing in this paragraph may otherwise be used in any way against the Defendant. Settlement Payments by Defendant 44. The Settlement Fund shall be paid to the Settlement Administrator within five (5) business days following Preliminary Approval. 45. No person shall have any claim against Defendant, Defendant s Counsel, Plaintiff, the Class Members, or Plaintiff s Counsel with respect to any payment made by the Settlement Administrator in accordance with this Agreement or as otherwise directed by the Court. 8

9 Creation and Operation of the Settlement Fund 46. The Settlement Administrator shall hold the Settlement Fund in escrow until distribution as provided in the Final Order and Judgment. The Settlement Fund shall be invested in instruments backed by the full faith and credit of the United States Government or an agency thereof or in money funds investing solely in short-term United States Government obligations, and shall so reinvest the proceeds of those instruments as they mature. The Settlement Fund shall remain the property of the Defendant until it is distributed in the manner provided in the Final Order and Judgment; provided, any tax liability arising out of interest earned by the Settlement Fund shall be borne by the monies in the Settlement Fund. Notice/Approval of Settlement and Settlement Implementation 47. The Parties agree to the following procedures regarding notice of the Settlement to the Class, subject to the approval of the Court. 48. Defendant has represented that it has made a diligent, good faith effort to identify the names and last known addresses of all Class Members and that it will provide a list thereof to the Settlement Administrator and Plaintiff s Counsel. 49. Within 10 days after entry of the Preliminary Approval Order, the Settlement Administrator shall send copies of the Settlement Notice via First Class regular U.S. mail to all Class Members, using the most current mailing addresses presently available. 50. Any Settlement Notices returned to the Settlement Administrator with a forwarding address shall be promptly r ed by the Settlement Administrator following receipt of the returned mail. If any Settlement Notice is returned to the Settlement Administrator without a forwarding address, the Settlement Administrator shall undertake reasonable efforts to search for the correct address by using Accurint and the United States Postal Service s National 9

10 Change of Address ( NCOA ) database, and shall promptly r the Settlement Notices to any newly-found addresses. If the Settlement Administrator is unable to locate a correct address by using Accurint and NCOA, or if the r ed Settlement Notice is returned as undeliverable, the Settlement Administrator shall inform the Parties counsel promptly of the Class Members for whom a valid address has not been identified. Procedure for Objecting to the Settlement 51. Any Class Members who wish to object to the Settlement must do so in accordance with the requirements set forth in the Preliminary Approval Order, as described in the Settlement Notice. Procedures for Opting Out of the Settlement 52. Any Class Members who wish to opt out of the Settlement must do so in accordance with the requirements set forth in the Preliminary Approval Order, as described in the Settlement Notice. 53. In the event that more than ten percent (10%) of the Class Members opt-out of the Settlement, Defendant shall have the right to void the Settlement. 54. At no time shall any of the Parties or their counsel seek to solicit or otherwise encourage Class Members to opt-out of or submit written objections to the Settlement or to appeal from the Final Order and Judgment. Calculation and Distribution of Settlement Awards 55. The Parties agree that the calculation and distribution of Settlement Awards to Plaintiff and the Class Members as provided herein is reasonable and that the Settlement Awards are designed to compensate such persons fairly in relation to the unpaid compensation allegedly owed to the Class Members. 10

11 56. The Settlement Administrator shall calculate, and disburse from the Settlement Fund, the amount of each Settlement Award in accordance with the methodology set forth herein, subject to the approval of the Court. 57. The Settlement Award to which each Class Member is entitled will be determined on a pro rata basis based on the number of days that each such person worked for Defendant as a temporary/seasonal driver during the Class Period. The Settlement Administrator will make this calculation based on information provided by Defendant s Counsel sufficient to identify the total number of days worked by each Class Member during the Class Period as a temporary/seasonal driver. 58. The Settlement Administrator will then divide the number of days worked by each Class Member by the total number of days worked for all Class Members during the Class Period to determine what percentage of all days were worked by each Class Member ( Percentage Share ). Each Class Member shall be entitled to a Settlement Award equal to his or her Percentage Share multiplied by the Settlement Fund. Class Members Share of Taxes 59. It shall be the responsibility of the Settlement Administrator to withhold from the Settlement Awards payable to the Class Members, each Class Members share of all federal, state and local income and employment taxes required to be withheld under the law, to prepare and deliver the necessary tax documentation for signatures by all necessary parties, and to cause the appropriate deposits of withholding taxes and informational and other tax return filings to occur. 60. Payments under this Settlement shall be treated in the following manner: a. Each Settlement Award shall be treated as wages for tax year 2013 and 11

12 shall be reported on IRS Form W-2. b. Any Incentive Award authorized by the Court shall be treated as non-wage income for tax year 2013, and shall be reported on IRS Form Each Class Members share of all applicable federal, state, and local income and employment taxes withheld and deposited with the applicable governmental authorities in accordance with this Agreement shall be paid by the Settlement Administrator out of the respective Class Member s Settlement Award. 62. All fees, expenses and costs of the Settlement Administrator incurred in connection with the implementation of this Stipulation (including mailing and distribution costs) shall be paid by the Defendant. Reporting Obligations of the Settlement Administrator 63. The Parties agree that the scope of the Settlement Administrator s duties shall include making timely, periodic reports to the Parties accounting for monies in the Settlement Fund (including all contributions, disbursements, and tax withholdings) and the participation status of Class Members. Employer s Share of Statutory FICA, FUTA and State Withholdings 64. In addition to the payments described above, Defendant shall bear responsibility for the employer s share of all taxes arising from the Settlement Awards paid to the Class Members. Incentive Award 65. Plaintiff will apply to the Court for an Incentive Award not to exceed $3,000, and Defendant agrees not to oppose such application. Any Incentive Award awarded by the Court will be paid by Defendant to Plaintiff separate and apart from the Settlement Fund. 12

13 Fee Award 66. Plaintiff s Counsel will apply to the Court for an award of fees and expenses not to exceed $136,500, payable to Shapiro Haber & Urmy LLP on behalf of Plaintiff s Counsel. Defendant agrees not to oppose such application. Unclaimed Settlement Awards 67. If any Class Members have not cashed their Settlement Award check within ninety (90) days of its issuance, the Settlement Administrator shall send a letter to each such Class Member notifying them that they have not cashed their check and that they must do so within sixty (60) days of the date of such letter or the check will be cancelled. 68. Any unclaimed portion of the Settlement Fund shall escheat to the Commonwealth of Massachusetts as set forth in paragraph 69 below. 69. The Parties agree that, should any amounts remain in the Settlement Fund following the distribution of Settlement Awards, any funds shall escheat to the Commonwealth of Massachusetts in accordance with the provisions of M.G.L. c. 200A. Questions and Disputes 70. In the event that questions or disputes arise regarding the entitlements of the Plaintiff or any Class Member under this Settlement, Defendant shall provide to Plaintiff s Counsel and/or the Court all available information reasonably necessary in order to allow the Parties or the Court to resolve them. No Retaliation by Defendant 71. Defendant shall not take any adverse employment action against the Plaintiff or any Class Member because any of them (a) instituted or in any way participated in this Action, or (b) elects or indicates an intention to object to or opt out of the Settlement memorialized in this 13

14 Settlement or any order entered by the Court approving its terms. Defendant s Legal Fees 72. All of Defendant s own legal fees, costs and expenses in this Action shall be borne by Defendant. Procedure for Payment of Monies from Settlement Fund 73. After the Effective Date, and solely for purposes of this Stipulation, the Settlement Awards shall be distributed in the following manner: a. Any Incentive Award authorized by the Court shall be paid from the Settlement Fund within 10 days following the Effective Date. b. Prior to the Effective Date, Defendant s Counsel will provide the Settlement Administrator with a list setting forth the name, last known address, social security number, and number of days worked during the Class Period for each Class Member, and the Settlement Administrator shall calculate the Settlement Award for each Class Member in conformity with this Stipulation, subject to the approval of the Court. c. Within ten (10) days following the Effective Date, the Settlement Administrator shall provide counsel for the Parties with a list setting forth the amounts to be paid to each Class Member. The Parties shall have five (5) days within which to advise the Settlement Administrator of any questions or objections to said proposed payment amounts. d. Within five (5) business days after the expiration of said five-day period, the Settlement Administrator shall issue and mail checks in the amounts determined by it to each Class Member, less deductions authorized pursuant to paragraph 59 of this Settlement. 14

15 e. Checks shall be mailed via First-Class U.S. mail, to the respective Class Members using the most current mailing address then available. 74. If any disputes arise regarding eligibility for any Settlement Awards under the terms of this Agreement, the Parties shall use their best efforts to resolve them. In the absence of such resolution, the Court shall resolve such disputes. Administration Costs 75. The costs for administration of the Settlement, including but not limited to the cost of the Settlement Administrator and the mailing of Notice and Settlement Awards, shall be borne by Defendant. 76. The Parties agree to cooperate in the Settlement administration process and to make all reasonable efforts to control and minimize the costs and expenses incurred in administration of the Settlement. Nullification of the Settlement Agreement 77. In the event: (i) the Court does not finally approve the Settlement as provided herein; (ii) the Court does not enter the Final Order and Judgment as provided herein; or (iii) the Final Order and Judgment is modified or reversed in any material respect by the Court of Appeals or the Supreme Court, then Plaintiff or Defendant shall have the right to terminate (hereinafter a Termination ) the Settlement by providing written notice of its intention to do so to the other party within thirty (30) days of any of the foregoing. In the event of a Termination, the Settlement and this Stipulation shall be null and void, and any order or judgment entered by the Court in furtherance of this Settlement shall be treated as withdrawn or vacated by stipulation of the Parties. In such case, the Parties shall be returned to their respective statuses as of the date immediately prior to the execution of this Stipulation, and the Parties shall proceed in all respects 15

16 as if this Stipulation had not been executed. Notification and Certification by Settlement Administrator 78. Following payment of the Settlement Awards, the Settlement Administrator shall provide a written certification of such payments to counsel for the Parties, which will thereafter be filed by Plaintiff s Counsel with the Court. Computation of Time 79. For the purposes of this Stipulation, if the prescribed time period in which to complete any required or permitted action expires on a Saturday, Sunday, or legal holiday (as defined by Fed. R. Civ. P. 6(a)(4)), such time period shall be continued to the following business day. Exhibits and Headings 80. This Settlement includes both the terms set forth in this Agreement and the attached Exhibits, which are incorporated by reference as though fully set forth herein. All exhibits to this Agreement are an integral part of the Settlement. Interim Stay of Proceedings 81. The Parties agree to hold in abeyance all proceedings in the Action, except such proceedings as may be necessary to implement and complete the Settlement. Amendment or Modification 82. This Agreement may be amended or modified only by a written instrument signed by counsel for both Parties or their successors in interest. Entire Agreement 83. This Agreement and the attached exhibits constitute the entire agreement among the Parties, and no oral or written representations, warranties or inducements have been made to 16

17 any Party concerning this Agreement or its exhibits other than the representations, warranties, and covenants contained and memorialized in such documents. All prior or contemporaneous negotiations, agreements, understandings, and representations, whether written or oral, are expressly superseded hereby and are of no further force and effect. Each of the Parties acknowledges that it has not relied on any promise, representation or warranty, express or implied, not contained in this Agreement. Authorization to Enter Into Settlement Agreement 84. Counsel for all Parties are expressly authorized by the Parties whom they represent to enter into this Settlement and to take all appropriate action required or permitted to be taken by such Parties pursuant to this Agreement to effectuate its terms, and to execute any other documents required to effectuate the terms of this Agreement. The Parties agree that they and their counsel will cooperate with each other and to use their best efforts to effect the implementation of the Settlement. In the event the Parties are unable to reach agreement on the form or content of any document needed to implement the Settlement, or on any supplemental provisions or actions that may become necessary to effectuate the terms of this Settlement, the Parties shall seek the assistance of the Court to resolve such disagreement. Binding on Successors and Assigns 85. This Agreement shall be binding upon, and inure to the benefit of the heirs, beneficiaries, successors or assigns of Plaintiff, Defendant, and the Class Members. Governing Law 86. All terms of this Agreement and the exhibits hereto shall be governed by and interpreted according to the Federal Rules of Civil Procedure, where applicable, or the laws of the Commonwealth of Massachusetts without regard to its principles of conflict of laws. 17

18 Counterparts 87. This Settlement may be executed in one or more counterparts. All executed counterparts and each of them shall be deemed to be one and the same instrument, provided that counsel for the Parties to this Agreement shall exchange among themselves original signed counterparts. Cooperation and Drafting 88. Each of the Parties has cooperated in the drafting and preparation of this Agreement; hence the drafting of this Settlement shall not be construed against any of the Parties. Jurisdiction of the Court 89. Any dispute regarding the interpretation or validity of or otherwise arising out of this Agreement, or relating to the Action or the Released Claims, shall be subject to the exclusive jurisdiction of the Court. The Court shall retain jurisdiction with respect to the interpretation, implementation, and enforcement of the terms of this Agreement and all orders and judgments entered in connection therewith, and the Parties and their Counsel submit to the jurisdiction of the Court for purposes of interpreting, implementing, and enforcing the Settlement embodied in this Settlement and all orders and judgments entered in connection therewith. [SIGNATURE PAGE FOLLOWS] 18

19 IN WITNESS WHEREOF, the Parties, by their Counsel, have executed this Agreement as of the date first set forth below. PLAINTIFF S COUNSEL: Date: Thomas G. Shapiro (BBO# ) Adam M. Stewart (BBO# ) SHAPIRO HABER & URMY LLP 53 State Street Boston, MA Telephone: Mark D. Stern (BBO # ) Mark D. Stern P.C. 34 Liberty Avenue Somerville, MA Telephone: (617) Date: DEFENDANT S COUNSEL: Date: Hugh F. Murray, III (BBO#557175) Lauren R. MacLellan (BBO#669767) Murtha Cullina LLP 99 High Street Boston, MA Telephone: (617)