Thorman v. Royal Care Inc. et al

MEMORANDUM in Support Motion for approval of Settlement--Attached Copy of Proposed Notice also attached as Exhibit C to the Settlement Agreement

E.D.N.Y.November 14, 2014

Exhibit C NOTICE AND CONSENT FORM AND DECLARATION Case 1:13-cv-05465-RER Document 23 Filed 11/14/14 Page 1 of 7 PageID #: 188 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------X EUNICE THORMAN, : Individually and on Behalf of All Other : ECF Persons Similarly Situated, : 13 Civ. 5465(ARR)(RER) : Plaintiffs, : : -against- : : THE ROYAL CARE INC., JOEL BERNATH, : and JOHN DOES #1-10, : : Defendants. : ---------------------------------------------------------X To: [Name] [Street] [City, State, Zip] NOTICE AND CONSENT TO JOIN COLLECTIVE ACTION SETTLEMENT A federal court authorized this notice. This is not a solicitation from a lawyer. If you are or were a home health aide employed by The Royal Care, Inc. during the calendar year of 2008, PLEASE TAKE NOTICE  The Royal Care, Inc. (“Royal Care”) has agreed to settle a case in which an employee alleges that Royal Care failed to pay overtime wages owed to home health aides.  You have been identified by Royal Care as a person potentially eligible to join the settlement.  You are eligible to join the settlement if you were employed by Royal Care as a home health aide at any time during the 2008 calendar year.  You must submit the enclosed CONSENT FORM by [DATE] to participate in this settlement. YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT: ASK TO BE INCLUDED BY If you choose to be included in this settlement Case 1:13-cv-05465-RER Document 23 Filed 11/14/14 Page 2 of 7 PageID #: 189 2 SUBMITTING THE CONSENT FORM and submit the CONSENT FORM, and you are eligible because you were employed by Royal Care as a home health aide at any time during the calendar year 2008, you will receive money. In exchange, by joining the settlement, you will release any and all claims you may have against Royal Care under state and federal wage and hour laws, including claims for unpaid overtime, which are based on acts occurring on or before December 31, 2008. DO NOTHING If you do not send in a CONSENT FORM, you give up the opportunity to get paid under the terms of the settlement. By doing nothing, you retain your right to sue Royal Care separately about the same legal claims alleged in the Lawsuit named above, but the statute of limitations continues to run. 1. WHY DID I GET THIS NOTICE? Royal Care’s records show you were a home health aide during the 2008 calendar year. This Notice explains your rights and options in the case Thorman v. The Royal Care, Inc., et al 2. WHAT IS THE CASE ABOUT? The lawsuit alleges violations of state and federal wage and hour overtime laws regarding payment for hours worked in excess of 40 per week. 3. WHO IS INVOLVED? In this class action lawsuit, Eunice Thorman has sued on behalf of herself and other people who may have similar claims. All workers who decide to participate in this case are a “Class” or “Class Members.” The home health aide who filed the case – and the Class Members like her – are called Plaintiffs. Royal Care is called the Defendant. One Court (the Court in New York) resolves the claims and defenses for all the Class Members who decide to join the case. 4. WHAT IS THE POSITION OF ROYAL CARE? Royal Care denies any liability or wrongdoing. Specifically, Royal Care denies the allegations that it has improperly classified the home health aides or improperly paid them in any way. 5. HAS THE COURT DECIDED WHO IS RIGHT? No. The Court has not decided whether Royal Care has done anything wrong, or whether the Plaintiff is correct. By authorizing this Notice, the Court is not suggesting Royal Care has violated the law, or that Plaintiff is right. 6. WILL ROYAL CARE TERMINATE MY EMPLOYMENT OR RETALIATE AGAINST ME IN ANY WAY IF I JOIN THE SETTLEMENT? Federal law prohibits an employer from taking negative action against an employee who participates in a claim alleging unpaid overtime. Royal Care has settled the case and encourages all Case 1:13-cv-05465-RER Document 23 Filed 11/14/14 Page 3 of 7 PageID #: 190 3 home health aides who were employed during the 2008 calendar year to participate in the settlement. 7. WHAT IS THE STATUS OF THE CASE? The Court has approved the settlement between Royal Care and the Class of home health aides. To participate in the settlement, you must complete and submit the enclosed CONSENT FORM. 8. WILL I BE CHARGED LEGAL FEES TO PARTICIPATE? No. Royal Care agreed to pay $150,000 for legal fees to class counsel representing home health aides, which the Court approved. 9. SUMMARY OF THE TERMS OF THE SETTLEMENT: The settlement provides payments to home health aides who file a CONSENT FORM to participate in the settlement. The payment to each home health aide who files a CONSENT FORM to participate will be calculated based on approximately 75% of the total amount that the pay records show the home health aid was not paid time and one half the minimum wage for hours worked over 40 in a work week. This amount may be allocated upward if not all potential class members opt into the class. The Settlement equals $668,661.15, of which $503,661.15 will be put in a pool for distribution to the class, $150,000 will be paid to class counsel for fees and expenses, and $10,000 will be paid to the Named Plaintiff for her alternate claims and $5,000 shall be paid to the named Plaintiff as an incentive bonus. Payments will be reported as wages subject to withholding on an IRS Form W2. The settlement has a Settlement Cap of $668,661.15, $503,661.15 of which will be put in a pool for distribution to the class. Payments will be sent by mail approximately 20 days after the deadline to submit the CONSENT FORM. 10. IF YOU PARTICIPATE YOU WILL RELEASE ANY WAGE AND HOUR CLAIMS: By submitting the CONSENT FORM, you agree to be bound by the terms of the Release provision of the Settlement. Specifically, you release Royal Care from any and all wage and hour claims, under any state or federal law, including any statue (and expressly including by not limited to the Fair Labor Standards Act), regulation or common law, that was raised or could have been raised in the Lawsuit, based on acts occurring on or before December 31, 2008. The release is binding on you and your heirs, estates, executors, administrators, assigns, transferees, and representatives. The release extends without limitation to Royal Care and its predecessors, successors, parents, subsidiaries, assigns, agents, and present and former officers and directors. 11. WHAT HAPPENS IF I DO NOTHING AT ALL? If you do not submit a completed CONSENT FORM to join the settlement, you will not be paid nor will you be bound by the terms of the settlement. Case 1:13-cv-05465-RER Document 23 Filed 11/14/14 Page 4 of 7 PageID #: 191 4 12. ARE THERE MORE DETAILS AVAILABLE? Yes. If you have any questions or require additional information, please contact Plaintiffs’ counsel at the following: /s/ William C. Rand William C. Rand Law Offices of William Coudert Rand 488 Madison Ave., Suite 1100 New York, New York 10022 wcrand@wcrand.com (212) 286-1425 13. WHAT MUST I DO TO JOIN THE SETTLEMENT? Complete and submit the CONSENT FORM and Declaration. Your CONSENT FORM must be postmarked no later than [DATE] Case 1:13-cv-05465-RER Document 23 Filed 11/14/14 Page 5 of 7 PageID #: 192 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------X EUNICE THORMAN, : Individually and on Behalf of All Other : ECF Persons Similarly Situated, : 13 Civ. 5465(ARR)(RER) : Plaintiffs, : : -against- : : THE ROYAL CARE INC., JOEL BERNATH, : and JOHN DOES #1-10, : : Defendants. : ---------------------------------------------------------X CONSENT TO JOIN AND DECLARATION I hereby consent to be a party plaintiff in the above-reference action, to receive payment pursuant to the terms of the settlement as set forth in the Notice I received, and to release any wage and hour claim I may have against The Royal Care, Inc., Joel Bernath, and all predecessors, successors, parents, subsidiaries, assigns, agents, and present and former officers and directors in exchange for that payment. My contact information is as follows: _____________________________ _______________________________ Printed Name Signature _____________________________ _______________________________ Street Address Telephone/Email _____________________________ _______________________________ City, State, Zip Code Date Return this completed form NO LATER THAN [DATE] [insert date that is 60 days from date of notice mailing] by mail, fax, or email to : /s/ William C. Rand William C. Rand Law Offices of William Coudert Rand 488 Madison Ave., Suite 1100 New York, New York 10022 Case 1:13-cv-05465-RER Document 23 Filed 11/14/14 Page 6 of 7 PageID #: 193 6 wcrand@wcrand.com phone: (212) 286-1425;fax: (646) 688-3078 Attorney for the Plaintiff Class Case 1:13-cv-05465-RER Document 23 Filed 11/14/14 Page 7 of 7 PageID #: 194