NOTICE OF PENDING CLASS, COLLECTIVE AND REPRESENTATIVE ACTION SETTLEMENT

Transcription

1 This notice is being sent pursuant to court order. This is not a solicitation from a lawyer. NOTICE OF PENDING CLASS, COLLECTIVE AND REPRESENTATIVE ACTION SETTLEMENT Rainoldo Gooding, et al v. Vita-Mix Corp., et al United States District Court, Central District of California, Case No. 2:16-cv ODW-JEM If you received a notice with a mailing date of October 6, 2017, your deadline to respond may be different. Please refer to your notice or contact for the deadline that applies to you. If you worked for Vita-Mix Corporation and/or Kelly Services, Inc. as a Vita-Mix Demonstrator or Sales Representative: (i) in California at any time from June 3, 2012, through March 13, 2017, and/or (ii) in the United States at any time from June 3, 2013, through March 13, 2017, you could be a Covered Class Member and be entitled to receive a payment from a proposed class, collective, and representative action settlement. Read this notice carefully, as your legal rights could be affected whether you act or not. The United States District Court for the Central District of California (the Court ) has preliminarily approved a class, collective, and representative action settlement that may affect your legal rights. The proposed settlement resolves a class, collective, and representative action lawsuit filed by Rainoldo Gooding and Nadeen Gooding ( Plaintiffs ) against Vita-Mix Corporation and Kelly Services, Inc. (collectively, Defendants ), titled Rainoldo Gooding, et al v. Vita-Mix Corp., et al, United States District Court, Central District of California, Case No. 2:16-cv ODW-JEM (the Lawsuit ). This Lawsuit is based on various allegations, including but not limited to, Plaintiffs claims that Defendants (i) misclassified Covered Class Members as exempt employees under federal and state law, (ii) failed to pay Covered Class Members all overtime and minimum wages due under both the FLSA and certain state laws, (iii) took unlawful deductions from Covered Class Members earned commissions under California law, and (iv) failed to provide required meal and rest periods to Covered Class Members under California law. Plaintiffs have also alleged derivative claims for penalties under California law, including claims for failure to timely pay final wages, failure to provide accurate itemized wage statements, and for civil penalties under the California Labor Code Private Attorneys General Act ( PAGA ). Defendants deny Plaintiffs contentions and maintain they have fully complied with the law. By entering into this settlement, Defendants in no way admit any violation of law or any liability whatsoever to Plaintiffs or Covered Class Members, individually or collectively, and expressly deny all such liability. Plaintiffs and Defendants have reached this settlement in light of all known facts and circumstances including the risks of significant delay and uncertainty associated with litigation, various defenses asserted by Defendants, and numerous potential appellate issues with the assistance of an experienced mediator knowledgeable of wage and hour laws and the class, collective, and representative claims at issue. The Settlement provides cash payments to individuals who worked for Defendants in the United States as Demonstrators or Sales Representatives (these job titles are referred to as Covered Positions ), based on their number of workweeks worked in California from June 3, 2012, through March 13, 2017 (the California Class Period ), and their number of workweeks worked in all other states from June 3, 2013 through March 13, 2017 (the Non-California Class Period ). [However, for any Covered Class Members who were also members of the settlement class in the case of Thomas v. Vita-Mix Corp., et al, San Joaquin County Superior Court Case No CU-OE-STK ( Thomas ), the California Class Period and the Non-California Class Period shall mean the period from August 28, 2015 through March 13, Any workweeks worked by Thomas settlement class members at any time on or before August 27, 2015, will not be considered in any payment calculations under this Settlement.] THIS NOTICE IS NOT TO BE UNDERSTOOD OR VIEWED AS AN EXPRESSION OF ANY OPINION FROM THE COURT AS TO THE MERITS OF ANY OF THE CLAIMS ASSERTED BY PLAINTIFFS OR DEFENSES ASSERTED BY DEFENDANTS. Page 1 of 7

2 YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT: DO NOTHING OPT OUT OBJECT You do not have to do anything in response to this notice. If you do nothing, you will remain eligible to automatically receive an Individual Settlement Payment if the Court grants final approval of the settlement and be bound by the release provisions in the Settlement Agreement. You may opt out of the settlement by submitting an Exclusion Letter. If you opt out, you may not object to the settlement, you will not receive an Individual Settlement Payment, and you will not be bound by the release provisions in the Settlement Agreement. You may object to the settlement by submitting a written objection. If the Court grants final approval of the settlement despite your objection, you still will remain eligible to automatically receive an Individual Settlement Payment if the Court grants final approval of the settlement and will be bound by the release provisions in the Settlement Agreement. 1. Why Did I Receive This Notice? You are receiving this Rule 23 Notice of Pending Class, Collective, and Representative Action Settlement ( Rule 23 Notice ) because Defendants records show that you work or worked in a Covered Position in California at some point between June 3, 2012 and March 13, 2017 ( California Class Member ), and/or in Arkansas, Connecticut, Georgia, Hawaii, Idaho, Illinois, Kansas, Maryland, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, West Virginia, Wisconsin, or Wyoming ( Non-California Rule 23 States ) at some point between June 3, 2013 and March 13, 2017 ( Non-California Rule 23 Class Member ), and that you are not a member of the Thomas settlement class who has not worked in a Covered Position since August 27, As a California Class Member and/or a Non-California Rule 23 Class Member, you are a Covered Class Member and may be entitled to share in the settlement funds. Because the Settlement would affect Covered Class Members legal rights, the Court ordered that this Rule 23 Notice be sent to you. This Rule 23 Notice provides a brief description of the Lawsuit, informs you of the Settlement terms preliminarily approved by the Court, and advises you of your legal rights with respect to the Settlement. If finally approved by the Court, the Settlement will fully resolve the Lawsuit and your legal rights may be affected by the Settlement. The terms of the Settlement are set forth in detail in the Settlement Agreement and Stipulation ( Settlement Agreement ), and have the same meaning here as used therein. You may obtain a copy of the Settlement Agreement from CPT Group, Inc., the neutral thirdparty appointed by the Court to administer the settlement (the Settlement Administrator ). Details about how to get additional information about the Settlement Agreement are provided at the end of this Notice. 2. What Is the Lawsuit About? On June 3, 2016, Plaintiffs, on behalf of themselves and all others similarly situated, filed the initial complaint in this Lawsuit in the United States District Court for the Central District of California. The operative complaint alleges ten causes of action: (1) failure to pay all overtime wages under California and other state laws; (2) failure to pay all overtime and minimum wages under the FLSA; (3) failure to pay minimum wages under California and other state laws; (4) failure to provide meal periods under California law; (5) failure to authorize and permit rest periods under California law; (6) failure to provide accurate itemized wage statements under California law; (7) unlawful deductions from wages under California law; (8) failure to timely pay wages upon termination under California law; (9) Civil Penalties under the PAGA; and (10) unfair competition under the California Unfair Competition Law. Defendants have denied and continue to deny (i) all of the allegations made by Plaintiffs, (ii) that Defendants violated any laws, (iii) that Defendants are liable for or owe damages, penalties, compensation, or remedies to anyone with respect to the alleged facts or claims asserted in the Lawsuit, and (iv) that class certification, collective action certification, or representative treatment of the Lawsuit or any of Plaintiffs alleged claims is proper. Nonetheless, without admitting or conceding any liability or wrongdoing whatsoever and without admitting or conceding that class certification, collective action certification, or representative treatment is appropriate for any purpose other than settlement purposes alone, Defendants have agreed to settle the Lawsuit on the terms and conditions set forth in the Settlement Agreement, to avoid the burden, expense, and uncertainty of continuing the Lawsuit. Page 2 of 7

3 The Court has preliminarily approved Plaintiffs counsel, Haines Law Group, APC and Kilgore & Kilgore PLLC, as Class Counsel. Based on their investigation and evaluation, Class Counsel is of the opinion that the terms set forth in the Settlement Agreement are fair, reasonable, adequate and in the best interests of Covered Class Members. 3. What Are the Payments Under the Settlement? a. Overall Summary of Settlement Payments Defendants have agreed to pay a Maximum Settlement Amount of One Million Six Hundred Thousand Dollars ($1,600,000.00). The Maximum Settlement Amount is inclusive of (i) any award by the Court to Class Counsel for attorneys fees and costs associated with the litigation ( Fee and Expense Award ), (ii) any award by the Court to Plaintiffs in recognition of their efforts and work in prosecuting the Lawsuit ( Service Awards ), (iii) any costs of settlement administration approved by the Court for administering the settlement ( Administration Costs ), and (iv) the PAGA payment (described below). The remaining portion of the Maximum Settlement Amount available for distribution to Covered Class Members is the Net Settlement Amount, to be allocated under the following Settlement Formula: (a) California Fund: 40% of the Net Settlement Amount will be allocated as the California Fund. The California Fund will be distributed proportionally among California Class Members, based on the proportional number of workweeks each Covered Class Member worked for Defendants in California during the California Class Period. (b) Non-California Fund: 60% of the Net Settlement Amount will be allocated as the Non-California Fund. The Non- California Fund will be distributed proportionally among Covered Class Members who worked for Defendants in the United States during the Non-California Class Period, based on the proportional number of workweeks each Covered Class Member worked in the District of Columbia or in states other than California during the Non-California Class Period. (c) Portion of PAGA Payment: $66, of the Maximum Settlement Amount has been designated as the PAGA Payment, 75% of which ($50,000.00) shall be distributed to the Labor & Workforce Development Agency ( LWDA ) and 25% of which ($16,666.67) shall be distributed proportionally to California Class members based on the number of workweeks worked by each California Class member in California between June 3, 2015 and March 13, b. Individual Settlement Payments The Net Settlement Amount shall be distributed in separate checks to each Participating Class Member ( Individual Settlement Payments ), pursuant to the terms of the Settlement Agreement. The Settlement Administrator will calculate Individual Settlement Payments for all Participating Class Members. Each California Class Member and Non-California Rule 23 Class Member who does not opt out shall be eligible to receive a check, without the need to submit a claim form, containing his or her Individual Settlement Payment. 1. Applicable Tax Withholding and Responsibility for Taxes Each Individual Settlement Payment will be allocated one third to wages, to be reported on IRS Forms W-2, and from which payroll deductions will be made for state and federal withholding taxes or any other applicable payroll deductions; and two-thirds (one-third each) to penalties and interest, to be reported on a Form 1099, and from which payroll deductions for federal, state, and local payroll taxes will not be made. The Settlement Administrator shall issue any necessary IRS Forms 1099 and W-2 to Participating Class Members for their respective Individual Settlement Payments. Participating Class Members shall be solely and legally responsible for paying all other applicable taxes on their respective Individual Settlement Payments and shall indemnify and hold harmless Defendants from any claim or liability for taxes, penalties, or interest arising as a result of the payments. 2. Undeliverable or Uncashed Checks If a Participating Class Member s Individual Settlement Payment is returned to the Settlement Administrator, the Settlement Administrator will make reasonable efforts to r it to the Participating Class Member at his or her correct address. Settlement checks will be valid for 180 days from the date of initial mailing. Checks for payments to the Participating Class Members will become void if not cashed within that time frame. Any portion of the Net Settlement Amount that is not claimed, including any funds from uncashed checks, shall be sent to cy pres beneficiaries Bet Tzedek Employment Project (50%) and Public Justice s Workers Rights Project (50%), both of which are non-profit organizations that advocate for workers rights. c. Attorneys Fees and Litigation Costs You do not need to pay individually any portion of Class Counsel s attorneys fees and costs. Any payments for those attorneys fees and costs will be deducted from the Maximum Settlement Amount. Class Counsel intends to request that the Court approve a Fee and Expense Award of up to 25% of the Maximum Settlement Amount (or $400,000) in attorneys fees, and up to $20,000 in litigation costs. The Court s approval of a Fee and Expense Award is not a material term of the settlement. If the Court does not approve a Fee and Expense Award, or approves only a lesser amount than requested by Class Counsel for a Fee and Expense Award, the other terms of the settlement shall apply. The Court s refusal to approve the Fee and Expense Award requested by Class Counsel does not give Page 3 of 7

4 Plaintiffs or Class Counsel any basis to abrogate the Settlement. Any amount of a Fees and Expense Award requested by Class Counsel but not approved by the Court shall be allocated to the Net Settlement Amount. d. Class Representatives Service Awards Class Counsel intends to request that the Court approve Service Awards for Plaintiffs in the total amount of $10,000, including $5,000 to Rainoldo Gooding and $5,000 to Nadeen Gooding. Plaintiffs Service Awards are in addition to the Plaintiffs respective Individual Settlement Payments. The Court s approval of any or all of the Service Awards is not a material term of the settlement. If the Court does not approve the Service Awards, or approves only lesser amount(s) than requested by Class Counsel for the Service Awards, the other terms of the Settlement shall apply. The Court s refusal to approve the Service Awards requested by Class Counsel does not give Plaintiffs or Class Counsel any basis to abrogate the Settlement. Any amount of a Service Award requested by Class Counsel but not approved by the Court shall be allocated to the Net Settlement Amount. e. Settlement Administration Costs Class Counsel intend to request that the Court approve Administration Costs of up to $25,000, payable to the Settlement Administrator for administering the settlement, including, but not limited to, printing, distributing, or tracking Class Notices, collecting any Exclusion Letters, providing any required tax forms, processing any required tax payments or reporting, and calculating and distributing Individual Settlement Payments. Any amount of Administration Costs requested by Class Counsel but not approved by the Court shall be allocated to the Net Settlement Amount. f. LWDA Payment As stated above, Class Counsel intends to request that the Court allocate $66, as PAGA penalties and approve an LWDA Payment of $50,000 (or 75% of the PAGA penalties) to the LWDA. Any amount of the LWDA Payment requested by Plaintiffs but not approved by the Court shall be allocated to the Net Settlement Amount. g. All Payments Subject to Court Approval All of the payments listed above will be made if and only if the Court grants final approval of the settlement and concludes it is reasonable, fair and adequate for the Class. The Court may adjust the amounts of certain payments. 4. How Do I Receive Money from the Settlement? Do Nothing. If you want to participate in the settlement, you do not have to do anything and do not have to appear at the final approval hearing before the Court. You will receive your Individual Settlement Payment automatically if the Court grants final approval of the settlement. 5. How Much is My Estimated Individual Settlement Payment? Your estimated Individual Settlement Payment is listed in the enclosed document titled YOUR DATA AS A CLASS MEMBER. The document also includes your number of California Individual Workweeks and Non-California Individual Workweeks, based on Defendants records. At this point, it is only possible to give an estimate of your recovery. If you wish to dispute any of the workweek information in that document, you may submit a dispute to the Settlement Administrator by following the instructions in Section 9, below. 6. What Do I Release Under the Settlement? In exchange for your Individual Settlement Payments, you will release certain claims against Defendants and all of Defendants past, present, and future direct and indirect affiliates, parents, subsidiaries, predecessors, successors and assigns, and all of Defendants respective past, present, and future partners, principals, officers, directors, employees, attorneys, insurers, representatives and agents, whether acting as agents or in individual capacities, and this Agreement shall inure to the benefit of and shall be binding and enforceable by all such entities and individuals. ( Releasees ). If you are a California Class Member, your release will include all Released California Claims, which include any and all claims that were or could have been asserted under California law by California Class Members based on the factual allegations in the operative Complaint, including but not limited to claims for unpaid overtime wages, unpaid minimum wages, meal period premiums, rest period premiums, wage statement penalties, unlawful deductions from wages, waiting time penalties, civil penalties under the PAGA, and unfair competition under California Business & Professions Code et seq., at any time during the California Class Period. Specifically excluded from the Released California Claims are any claims under the aforementioned California laws for retaliation or for violation of equal pay provisions. Page 4 of 7

5 If you are a Non-California Rule 23 Class Member, your release will include all Released Non-California Rule 23 Claims, which include any and all claims that were or could have been asserted under the wage and hour laws and regulations of all state laws (other than California) invoked in the Complaint and arising from the factual allegations in the Complaint, including all state or common law claims under the non-california wage and hour laws invoked in the Complaint that could have been asserted by Covered Class Members based on the misconduct alleged in the Complaint, including claims for unpaid minimum and overtime wages, attorneys fees, costs, and expenses; liquidated damages; civil penalties; equitable remedies; pre- or post-judgment interest; or damages or relief of any kind available under the non-california wage and hour laws invoked in the Complaint and arising from the allegations in the Complaint, at any time during the Non-California Class Period. Specifically excluded from the Released Non-California Rule 23 Claims are any claims under the aforementioned state laws for retaliation or for violation of equal pay provisions. In addition, upon cashing your settlement check, you will be deemed to have opted in to the FLSA claims alleged in the Lawsuit, and you will release the Released FLSA Claims, which include any and all claims that were or could have been asserted under the Fair Labor Standards Act, 29 U.S.C. 201, et seq. ( FLSA ) based on the factual allegations in the Complaint, including but not limited to claims for non-payment of minimum wages or overtime wages; liquidated damages; attorneys fees, costs and expenses; pre- and postjudgment interest, at any time during the FLSA Class Period. This paragraph applies to Non-California Rule 23 Class Members as well as California Class Members. Specifically excluded from the Released FLSA Claims are any claims under the FLSA for retaliation or for violation of equal pay provisions. 7. How Do I Object to the Settlement? You can ask the Court to deny approval by submitting an objection. You can t ask the Court to order a larger settlement; the Court can only approve or deny the settlement. If the Court denies approval, no settlement payments will be sent out and the Lawsuit will continue. If that is what you want to happen, you must object. You may object to the proposed settlement in writing. You may also appear at the Final Approval Hearing, either in person or through your own attorney. If you appear through your own attorney, you are responsible for paying that attorney. All written objections and supporting papers must (a) clearly identify the case name and number (Rainoldo Gooding, et al v. Vita-Mix Corp., et al, Case Number 2:16-cv ODW-JEM), (b) be submitted to the Settlement Administrator (see mailing address below), (c) be accompanied by any documentary or other evidence and any factual or legal arguments that you intend to rely upon in making the objection, and (d) be postmarked on or before December 5, If you fail to make an objection in the manner specified above, you shall be deemed to have waived any objections and shall be foreclosed from making any objection, whether by appeal or otherwise, to this Settlement. If you submit an objection, you will remain bound by the Settlement if it is finally approved. If you do not want to be bound by the Settlement if finally approved, you must opt out of the Settlement. 8. How Do I Opt Out of the Settlement? If you do not want to participate in the Settlement, you may opt out of the Settlement. If you opt out of the Settlement, you may not object to the Settlement, shall not receive any Individual Settlement Payment, and shall not be bound by the release provisions in the Settlement Agreement. In order to opt out, you must mail the Settlement Administrator an Exclusion Letter, which is a letter that includes your name, signature, current address, telephone number, and the last four digits of your Social Security number. The Exclusion Letter must state that you wish to exclude yourself from the Settlement. Any such Exclusion Letter must be postmarked by December 5, Any Exclusion Letter that does not include all required information or that is not submitted on a timely basis will be deemed null, void, and ineffective. An Exclusion Letter shall be deemed to be submitted as of the postmarked date. If you submit both an Exclusion Letter and an objection, your objection will be valid and be deemed to invalidate the Exclusion Letter. 9. How Can I Dispute the Amount of My Individual Settlement Payment? If you wish to dispute the number of your California Individual Workweeks and/or Non-California Individual Workweeks as shown in the accompanying document titled YOUR DATA AS A CLASS MEMBER, you may notify the Settlement Administrator of your dispute in writing, at the address listed below by December 5, Your letter to the Settlement Administrator must also include any supporting information or evidence available to you to support the dates you contend to have worked in a Covered Position. Defendants will review the records and provide information to the Settlement Administrator and to Class Counsel in response to any such dispute. Defendants records will be presumed determinative, but the Settlement Administrator will evaluate your evidence, consult with the Parties, and make the decision as to the correct calculation. The determination by the Settlement Administrator will be final and binding. You will be notified in writing of the results of your dispute by the Settlement Administrator. Page 5 of 7

6 10. What is the Next Step? The Court will hold a Final Approval Hearing on the adequacy, reasonableness, and fairness of the Settlement on January 22, 2018, at 1:30 P.M., in Courtroom 5D of the First Street Courthouse of the United States District Court for the Central District of California, located at 350 W. 1st Street, Los Angeles, CA The Court also will be asked to rule on Class Counsel s request for attorneys fees and reimbursement of litigation costs and the Service Awards to the Plaintiffs. The Final Approval Hearing may be postponed without further notice to the Class. You are not required to attend the Final Approval Hearing, although any Class member is welcome to attend the hearing. 11. Where Can I Get Additional Information? This notice summarizes the Lawsuit, settlement, and related matters. For more information, you may contact the Settlement Administrator or Class Counsel: Settlement Administrator: Gooding v. Vita Mix Corporation c/o CPT Group Inc. 50 Corporate Park Irvine, CA Class Counsel: HAINES LAW GROUP, APC 2274 East Maple Avenue El Segundo, California Telephone: (424) KILGORE & KILGORE, PLLC 3109 Carlisle Street, Suite 200 Dallas, TX Telephone: (214) You also may view the Settlement Agreement and other documents from the Lawsuit by visiting the settlement website listed above, or by using PACER at the Court s website ( PLEASE DO NOT CALL THE COURT FOR INFORMATION REGARDING THE SETTLEMENT Page 6 of 7

7 CPT ID: 7 YOUR DATA AS A CLASS MEMBER Based on Vita-Mix s records, you worked 0 California Individual Workweeks during the California Class Period and 2.4 Non-California Individual Workweeks during the Non-California Class Period. Accordingly, your Individual Settlement Payment is estimated to be $ ***Please note: If you were a member of the Thomas settlement class, any workweeks you worked in a Covered Position prior to August 28, 2015 are not included in the above calculations. If you wish to dispute any of the workweek information herein, you may submit a dispute to the Settlement Administrator by following the instructions contained in the Notice. RULE 23 NOTICE OF COLLECTIVE ACTION SETTLEMENT Questions? Please contact the Settlement Administrator at Page 7 of 7