Summary
providing for notice of settlement and opportunity to object or withdraw consent
Summary of this case from Gassel v. Am. Pizza Partners, L.P.Opinion
Master Docket No. 06-cv-17430-WYD-CBS (MDL Docket No. 1743).
October 6, 2010
THIS MATTER is before the Court on the parties Joint Motion for Preliminary Approval of Collective Action Settlement, filed September 23, 2010 [ECF No. 414]. Upon consideration of the terms of the proposed Settlement Agreement and the papers submitted in support of the motion for preliminary approval of the settlement, it is hereby
ORDERED that the motion is GRANTED. I find that the settlement is non-collusive and within the range of reasonableness such that notice of the settlement to Collective Action Members is appropriate. It is
FURTHER ORDERED that within 7 days of entry of this Order, Counsel for Collective Action Members in the Schultz and Baldozier actions shall mail to those Collective Action Members the Notice of Settlement attached hereto as Exhibit 1 and the Claim Form attached hereto as Exhibit 2. It is
FURTHER ORDERED that Collective Action Members shall have 30 days from the mailing of the Notice of Settlement and Claim Form to (1) return the Claim Form accepting the settlement; or (2) withdraw their Consents to Join the Schultz or Baldozier FLSA collective actions. (Claim Forms and withdrawals shall be timely if postmarked within 30 days of the mailing of notice.) Each of the 111 persons listed on Exhibit 3 shall be deemed to have accepted the settlement and to have timely submitted a Claim Form, unless he or she timely submits a written request to Counsel for Collective Action Members to withdraw his or her Consent to Join. It is
FURTHER ORDERED that Collective Action Members shall also have 30 days after the mailing of notice to submit written comments on the terms of the proposed settlement to Counsel for Collective Action Members. Counsel for Collective Action Members shall furnish copies of such comments to opposing counsel and file such comments with the Court in advance of the final approval hearing. It is
FURTHER ORDERED that if the settlement is granted final approval, Collective Action Members who do not timely withdraw their Consents to Join, (1) shall be bound by the judgment in these actions, (2) shall release the Released Claims, as defined in the Settlement Agreement, even if they will not be entitled to payment under the Settlement Agreement, and (3) shall be enjoined from prosecuting any Released Claims against American Family. It is
FURTHER ORDERED that this Court will hold a hearing on whether to grant final approval to the Settlement on Friday, December 10, 2010, at 1:30 p.m., 901 19th Street, Courtroom A1002, Tenth Floor, Denver, Colorado.
Dated: October 6, 2010.
Exhibit 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Master Docket No. 06-cv-17430-WYD-CBS (MDL Docket No. 1743)
IN RE AMERICAN FAMILY MUTUAL INSURANCE COMPANY OVERTIME PAY LITIGATION
NOTICE OF SETTLEMENT This Notice Relates to Baldozier v. American Family andSchultz v. American Family
To: ALL NAME PLAINTIFFS AND PERSONS WHO HAVE SUBMITTED A CONSENT TO JOIN THE BALDOZIER OR SCHULTZ LAWSUITS
PLEASE TAKE NOTICE that American Family Mutual Insurance Company ("American Family"), Baldozier Plaintiffs Scott Donaldson, Jok Nicholson, Troy Hansen, Eric Stack, and Craig Thayer, and Schultz Plaintiff Robert Schultz, on behalf of themselves and the Collective Action Members in the Baldozier and Schultz actions, have agreed to settle these two actions on the terms below. The Court granted preliminary approval to that settlement on ___________.YOUR CHOICES REGARDING THIS SETTLEMENT
1. To Receive Money from the Settlement Fund, You Must Timely Sign and Return the Claim Form
If you choose to accept the proposed settlement and release your claims in these actions, you must mail the enclosed Claim Form to counsel for Collective Action Members by _______________. You can use the enclosed, postage-paid envelope. Your Claim Form must be postmarked by ______________________ or you will not be entitled to receive any payment from the Settlement Fund. If you are one of the 111 persons in the Baldozier case who signed and returned the letter accepting the settlement circulated by Baldozier counsel, you will be deemed to have accepted the settlement and released your claims, unless you affirmatively inform counsel in the Baldozier collective action in writing by __________________ that you wish to withdraw your consent to join.
If you are submitting the Claim Form on behalf of another person, you must be legally authorized to represent that person as an administrator or executor of that deceased person's estate, a guardian or conservator of an incapacitated person, or any other legally appointed person or entity responsible for handling that person's business affairs. You must enclose a copy of the legal document authorizing you to represent that person when you return the signed Claim Form.
2. To Forego Payment and Preserve Your Claims, You Must Withdraw Your Consent to Join
If you choose not to accept the settlement, and do not want to release your claims, you can withdraw your consent to join in the Baldozier or Schultz actions. If you do so, you will no longer be represented by counsel for the Collective Action Members in these actions. You can retain your own new counsel and file your own new action. Your claims in the Baldozier and Schultz actions will be dismissed without prejudice. The statute of limitations on your claims will be tolled for 30 days after the claims are dismissed in this action. There is no guarantee that you will recover more (or, indeed anything) in another action.
To withdraw your consent to join, send a letter to counsel for Collective Action Members at the address below:
James M. Finberg
Altshuler Berzon LLP
177 Post St., Suite 300
San Francisco, CA 94108The letter must state that you want to withdraw your consent to join, and that you understand that because you are withdrawing your consent to join you will not receive a portion of the settlement funds in these actions. The letter must be postmarked by __________________, 2010.
3. If You Do Nothing, You Will Receive No Payment and Your Claims Will Be Released
If you do not return the Claim Form by __________, 2010, but also do not formally withdraw your consent to join, your claims will be released, but you will not receive a settlement payment (unless you are among the 111 persons in the Baldozier case who signed and returned the letter accepting the settlement circulated by Baldozier counsel, in which case your claims will be released and you will receive a payment).
SCOPE OF RELEASE
If you sign and return the Claim Form, or if you do nothing, the Settlement Agreement provides that at the Fairness Hearing, the Court will enter a Final Order dismissing your claims with prejudice. The Final Order will also provide that you have forever and fully released American Family, its owners, stockholders, predecessors, successors, assigns, agents, directors, officers, employees, representatives, attorneys, parent companies, divisions, subsidiaries, affiliates, benefit plans, plan fiduciaries and/or administrators, and all persons acting by, through, under or in concert with any of them, including any party that was or could have been named as a defendant in the Baldozier or Schultz lawsuits, from any and all past and present matters, claims, demands, and causes of action of any kind whatsoever, whether at common law, pursuant to statute, ordinance or regulation, in equity or otherwise, and whether arising under federal, state, or other applicable law, which you have or might have, known or unknown, asserted or unasserted, of any kind whatsoever, that are based upon or arise out of the facts, acts, transactions, occurrences, events or omissions alleged in the Baldozier or Schultz actions. The Released Claims include without limitation claims asserted in the Baldozier and Schultz actions and any other claims based on alleged misclassification under state or federal law governing overtime pay, exempt status, failure to make payments due to Collective Action Members had they been classified as nonexempt, failure to keep records of hours worked or compensation due, and penalties, liquidated damages, interest, costs, and attorneys' fees for any of the foregoing.
HOW TO COMMENT ON THE SETTLEMENT
If you wish to comment on the settlement, you may send a letter to Counsel for the Collective Action Members by __________________, 2010, stating whether you support or object to the terms of the settlement. That letter should be sent to:
James M. Finberg
Altshuler Berzon LLP
177 Post St., Suite 300
San Francisco, CA 94108
All comments will be filed with the Court before the final fairness hearing. You are not required to comment on the settlement.
ALLOCATION AND DISTRIBUTION OF SETTLEMENT FUND
American Family has set aside a Settlement Fund of $285,000 to be paid as follows.
A. Cost Reimbursement
Counsel for the Collective Action Members in Schultz and Baldozier will apply to the Court for payment of 25% of the $285,000 (i.e. $71,250) in reimbursement for their out-of-pocket costs in these actions. That amount is far less than the over $300,000 in out of pocket expenses counsel have incurred in connection with prosecuting these actions, and does not compensate the lawyers at all for the thousands of hours that they have devoted to this case.
B. Payments to Persons Deposed
Counsel for Collective Action Members will also ask the Court to award $500 to each of the 51 Collective Action Members who were deposed in these actions, and who timely accept the settlement. Counsel believe that individuals who were deposed should receive the additional amount because they interrupted their lives and spent their own time meeting with attorneys and reviewing documents to prepare for the depositions, and some individuals had to miss one or more days of work for these purposes.
C. Withdrawals of Consents to Join
American Family will retain $1,250 for each Collective Action Member who timely withdraws his or her consent to join.
D. Distribution of the Net Settlement Fund
The net settlement fund (after partial cost reimbursement of costs, payment to persons who were deposed, and deduction of $1,250 for each withdrawing Collective Action Member) shall be divided evenly among the Collective Action Members who timely accept the settlement. The 111 persons who sent a letter to Baldozier counsel accepting the settlement shall be deemed to have timely accepted the settlement. Settlement checks will be mailed within 7 days after the settlement has become Effective (i.e., 30 days after a Court order granting final approval to the settlement, if there is no appeal, or after any appeal is resolved in favor of settlement approval). If the Court grants the cost reimbursement payments and payments to persons deposed, and if all Collective Action Members participate, the average award before required withholding will be approximately $1,250.
FINAL FAIRNESS HEARING
The Court will hold a hearing on __________________ at ______________________ to decide whether to grant final approval to the settlement. The hearing will be held at:
Courtroom of the Hon. Wiley Y. Daniel
Alfred A. Arraj United States Courthouse
901 19th Street
Denver, CO 80294-3589
You are welcome to attend this hearing, but you are not required to do so.
FOR MORE INFORMATION
The full Settlement Agreement and Order granting preliminary approval of the settlement may be found atwww.AmericanFamilyOvertimeLawsuit.com. If you have further questions, please contact Counsel for the Schultz and Baldozier Collective Action Members at: Baldozier Schultz
James M. Finberg Michael S. Hilicki ALTSHULER BERZON LLP THE WALNER LAW FIRM, LTD. 177 Post Street, Suite 300 20 North Clark Street, Suite 2450 San Francisco, CA 94108 Chicago, Illinois 60602 Telephone: (415) 421-7151 Telephone: (312) 201-1616 Attorneys for Plaintiffs Attorneys for PlaintiffsExhibit 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Master Docket No. 06-cv-17430-WYD-CBS (MDL Docket No. 1743)IN RE AMERICAN FAMILY MUTUAL INSURANCE COMPANY OVERTIME PAY LITIGATION
CLAIM FORM For Baldozier v. American Family and Schultz v. American Family YOUR SIGNED CLAIM FORM MUST BE POSTMARKED NO LATER THAN ______, 2010, OR YOU WILL NOT RECEIVE PAYMENT.I state as follows:
1. I am a current or former American Family physical damage adjuster who is a name Plaintiff or filed a Consent to Join Baldozier et al. v. American Family Mutual Insurance Company or Schultz v. American Family Mutual Insurance Company.
2. The terms of the settlement preliminarily approved by the Court are acceptable to me and I wish to receive my share of the settlement payment.
3. I agree to dismiss my claims in these actions with prejudice and release my claims as provided in the Settlement Agreement.
4. I have not assigned or transferred all or part of any Released Claim to any other person or entity.
5. If I am submitting this Claim Form for another person, I have enclosed a copy of the legal document authorizing me to represent that person.
Dated: ____________________ ______________________________ Signature Please print your Name: _________________________ Street address: ________________________ City, State, and Zip Code: _________________________ Telephone number: _________________________Your signed Claim Form should be mailed in the enclosed envelope to James M. Finberg, Altshuler Berzon LLP, 177 Post Street, Suite 300, San Francisco, CA 94108.
EXHIBIT 3
List of 111 Accepting Baldozier Collective Action Members1. Janice E. Alspach
2. Larry L. Anderson
3. Steve D. Anderson
4. Heather R. Atkins-Miller
5. Michelle H. Axelrod
6. Rick D. Bailey
7. Douglas J. Bartholomew
8. Allan A. Batson
9. Jeff A. Black
10. Clarence O. Boomgaarden
11. John P. Byrne
12. Mark E. Cooper
13. Donald J. Crane
14. George Thomas Cribbins
15. Jeffery Paul DeBuck
16. Mary C. DeGrasso
17. Harald H. Dirksen
18. Scott Donaldson
19. Wesley B. Edgar
20. Darryl R. Edwards
21. Ben S. Ekrem
22. Mark A. Evans
23. Ricky W. Fryson
24. Charles V. Gambrel
25. Richard T. Garcia
26. Gary Garnjobst
27. Scot L. Gish
28. Jonathan Emory Graham
29. Barbara E. Grubb
30. Kenneth L. Halterman
31. Michael W. Hansen
32. Troy A. Hansen
33. Donovan W. Hartwig
34. Allen W. Heling
35. Lauren L. Hiedecker
36. William H. Hill
37. Paul W. Hornbacher
38. Michael R. Horne
39. Gregory W. Houk
40. Kenneth L. House
41. Robert S. Huebner
42. Alan G. Inwood
43. Kimberly Jakubowski
44. Reed S. Johnson
45. Robert Kamishlian
46. Marcia M. Kimmerle
47. Gene A. Knudtson
48. Edward J. Krenk
49. Douglas H. Ladwig
50. Andrew S. Lattocha
51. Douglas B. Lawler
52. Jerimie A. Logan
53. Larry D. Lustfeldt
54. Christine A. Lynd
55. Daniel L. Mardis
56. Andrew R. Mehlhop
57. Mark B. Meixner
58. Richard T. Michalowski
59. Thomas A. Mijal
60. Jeffrey R. Miller
61. Max D. Mills
62. George E. Morey
63. Susan A. Munson
64. Richard L. Neveau
65. Michael Ray Newcomb
66. Jok Nicholson
67. Mark J. Nygaard
68. Dan K. Palmer
69. Jeffrey J. Parmeter
70. Fredrick L. Passant
71. Eugen M. Petcolescu
72. Brian P. Porter
73. Michael W. Pottorf
74. Robert Reynolds
75. Martin J. Roby
76. Andrea A. Rogers
77. Stephen B. Roscoe
78. Rodger L. Runk
79. Jennifer L. Sailor
80. Chad W. Schmidt
81. Gregory B. Sharp
82. Daniel J. Shelby
83. Rodney R. Simpson
84. Larry G. Sisson
85. William L. Spangler
86. Richard L. Sparks
87. Brandon S. Spitler
88. Eric Stack
89. Jason C. Story
90. Kurtis A. Stowe
91. Travis L. Stuckenschneider
92. Karen L. Swedeen
93. Paul G. Talbot
94. Terrence L. Tarras
95. Gary A. Taylor
96. Duane L. Teetor
97. Craig A. Thayer
98. David A. Thomas
99. Daryl L. Tietz
100. Phillip E. Tramel
101. Todd J. Trecek
102. William E. True, Sr.
103. Steven D. Underwood
104. Brenda S. Voight
105. Hilton Weathers
106. Dean A. Wildman
107. David A. Wilson
108. Wayne L. Woebkenberg
109. Randy L. Wolden
110. Eugene B. Yeager
111. G. Terrance Young