NOTICE OF PROPOSED CLASS ACTION SETTLEMENT

Transcription

1 NOTICE OF PROPOSED CLASS ACTION SETTLEMENT Djukich v. Carwell, LLC d/b/a Mercedes-Benz of South Bay Case No. CV BRO (AGRx) United States District Court, Central District of California, Western Division 312 North Spring Street Los Angeles, CA This is not a solicitation. This is not a lawsuit against you and you are not being sued. However, your legal rights are affected whether you act or do not act. To: All current and former technicians, service technicians, or mechanics who were employed by Carwell, LLC ( Carwell ) from April 29, 2009 to June 30, 2013, and who were paid on a Flat Rate Basis 1 under the Challenged Pay Plan 2 at any time during the aforementioned period. ( Class or Class Member ). The Court authorized this Notice of Proposed Class Action Settlement ( Notice ). PLEASE READ THIS NOTICE CAREFULLY DO NOTHING CHANGE CONTACT INFORMATION EXCLUDE YOURSELF OBJECT YOUR LEGAL RIGHTS AND OPTIONS IN THIS PROPOSED SETTLEMENT 3 To receive your Class Benefit (i.e., a monetary payment made by check), you do not need to do anything other than notify the Settlement Administrator, whose contact information is shown below, of any changes in your name or mailing address. Your Class Benefit check will be mailed to you, automatically, if the Court grants final approval. Update your personal information with the Settlement Administrator to ensure your Class Benefit check is mailed to the correct address. It is your responsibility to notify the Settlement Administrator of any change in your name or mailing address. You can exclude yourself if you do not want to participate in the proposed Settlement. If you exclude yourself, you will not receive a Class Benefit check. This is the only option that allows you to pursue your own claims, at your own expense, against Carwell, LLC. You can object to the proposed Settlement by preparing a written statement stating why you think the proposed Settlement is not fair. Your rights and options and the deadlines to exercise them are explained in this Notice. Carwell has agreed to the proposed Settlement and will not retaliate in any manner against any Class Member who remains in the Class and receives his Class Benefit or any Class Member who excludes himself from the Class. For the full terms, please consult the Settlement Agreement and General Release which may be viewed on the website. This notice only has a summary of the terms which may be incomplete. 1 Defined as payment to technicians, service technicians, or mechanics based on specified repairs performed on vehicles, supplemented during any particular pay period by a tool allowance if necessary to ensure compensation for such pay period at no less than double the then-applicable minimum wage of eight dollars and zero cents ($8.00). 2 Defined as the pay plan in effect as of April 29, 2009, that paid technicians, service technicians, and mechanics on a Flat Rate Basis and that is the subject of challenge in [Djukich v. Carwell, LLC]. 3 This table is a summary only. Your full rights and obligations are set forth in the Settlement Agreement and General Release which can be view on the, and more details are provided below. Page 1 of 8

2 BASIC INFORMATION 1. Why did I get this Notice? You received this notice because Carwell s records identify you as a technician, service technician, or mechanic whom it employed at some time from April 29, 2009, to June 30, 2013, and who was paid on a Flat Rate Basis 4 under the Challenged Pay Plan 5 at some time during the aforementioned period. The purpose of this Notice is to explain the Action (Pavel Djukich v. Carwell, LLC d/b/a Mercedes-Benz of South Bay, Case No. CV BRO (AGRx)), the proposed Settlement, your legal rights, what benefits are available, who is eligible, and how to get those benefits. The Court in charge of the case is the United States District Court for the Central District of California. 2. What is this Action about? The Action alleged Carwell paid Class Members pursuant to a Challenged Pay Plan, which Plaintiff claimed did not comply with California Law, and that was in effect through around May 31, Plaintiff claimed the Challenged Pay Plan deprived Class Members of minimum wages and overtime wages for all hours worked in violation of the California Labor Code, Industrial Welfare Commission Wage Order 4, and California s Unfair Competition Law. The Action seeks damages for unpaid wages, interest, attorneys fees, and costs. Carwell denies all allegations in the Action and contends that at all times it has complied with the California Labor Code, Industrial Welfare Commission Wage Order 4, and California s Unfair Competition Law. Carwell contends that the Challenged Pay Plan substantially rewarded Class Members by allowing them to earn well more than the applicable minimum wage to which they were entitled under state law. Carwell denies that it is liable for any damages whatsoever. Carwell entered the Settlement Agreement to avoid the ongoing costs and distractions of litigation. The proposed Settlement is not an admission of any wrongdoing by Carwell or an indication that it violated any law. 3. Why is this a Class Action? In a class action, a Class Representative sues on behalf of himself and other people who have similar claims. The group of people with similar claims is called a Class. Each person covered by the Class definition is a Class Member. Here, the Class Representative is Plaintiff Pavel Djukich. There are an estimated 59 Class Members. The Court will resolve the issues for all Class Members, except for those who exclude themselves from the Class. Judge Beverly Reid O Connell of the United States District Court for the Central District of California is in charge of this Action. 4. Why is there a proposed Settlement? The Court did not decide in favor of Plaintiff Djukich or Defendant Carwell. There was no trial. Instead, both sides agreed to a no-fault settlement of the Action. That way, they avoid the cost of further litigation and trial, and the people affected will get compensation from the Settlement if the Court approves it. The Class Representative and Class Counsel (the attorneys for the Class Representative) think the proposed Settlement is in best interest of the Class Members. 4 Defined as payment to technicians, service technicians, or mechanics based on specified repairs performed on vehicles, supplemented during any particular pay period by a tool allowance if necessary to ensure compensation for such pay period at no less than double the then-applicable minimum wage of eight dollars and zero cents ($8.00). 5 Defined as the pay plan in effect as of April 29, 2009, that paid technicians, service technicians, and mechanics on a Flat Rate Basis and that is the subject of challenge in [Djukich v. Carwell, LLC]. 5 Defined as the pay plan in effect as of April 29, 2009, that paid technicians, service technicians, and mechanics on a Flat Rate Basis and that is the subject of challenge in [Djukich v. Carwell, LLC]. Page 2 of 8

3 5. Who are the Parties in this Lawsuit? Plaintiff Pavel Djukich, the Class Representative, was employed by Carwell from about November 2003 through October 2006, and then again from November 2006 through October 2010, as a service technician under the Challenged Pay Plan. Defendant Carwell, LLC does business as and operates Mercedes-Benz of South Bay, an automobile dealership. 6. Who are the attorneys for the Parties? Counsel for Plaintiff: Counsel for Defendant: Isam C. Khoury (Bar No ) Diana M. Khoury (Bar No ) Michael D. Singer (Bar No ) Kimberly D. Neilson (Bar No ) COHELAN KHOURY & SINGER Kimberly D. Neilson 605 C Street, Suite 200 San Diego, California Telephone: (619) Daniel F. Katz (pro hac vice) Luba Shur (pro hac vice) Steven M. Pyser (pro hac vice) David M. Horniak (Bar No ) Zorana Zupac (Bar No ) WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, DC Telephone: (202) Kashif Haque (Bar No ) Samuel A. Wong (Bar No ) AEGIS LAW FIRM, PC 9811 Irvine Center Drive, Suite 100 Irvine, California Telephone: (949) Christopher C. Hoffman (Bar No ) FISHER & PHILLIPS LLP 4747 Executive Drive, Suite 1000 San Diego, California Telephone: (858) Lonnie D. Giamela (Bar No ) FISHER & PHILLIPS LLP 444 South Flower Street, Suite 1590 Los Angeles, California Telephone: (213) If you have questions regarding this proposed Settlement, you should contact Class Counsel or the Settlement Administrator. Do NOT contact the Court, Carwell, or Carwell s Counsel for Defendant Carwell or Carwell s managers or supervisors regarding your questions. THE TERMS OF THE PROPOSED SETTLEMENT 7. What is the amount of the proposed Settlement? The proposed Settlement provides for a cash payment of $919,000 to fully and finally resolve the Action (referred to as the Gross Settlement Fund or GSF). The Class Counsel will apply to the Court for Attorneys Fees of up to 30% of the Gross Settlement Fund (no greater than $275,700), Costs incurred by Class Counsel in the Action (no greater than $36,500), a payment to the Class Representative as an Enhancement or Service Payment Award of up to $10,000), and Settlement Administration Expenses estimated to be $9,000. The exact amount of the Attorneys Fees, Costs, the Enhancement or Service Payment Award, and Settlement Administration Expenses will be determined or approved by the Court at a Final Fairness Hearing. The remaining portion of the GSF, the Net Settlement Fund or NSF, is estimated to be approximately $587,800, less the employer-sided taxes. This amount is also referred to as the Class Benefit. The NSF will be apportioned and paid automatically to all Class Members who do not request to be excluded from the Page 3 of 8

4 proposed Settlement. Any portion of the NSF that would have been attributed to Class Members who request exclusion from the Settlement will be paid to the Class Members who participate in the Settlement. No portion of the NSF will revert to Carwell. 8. How will the Class Benefit be calculated? Class Members who do not request exclusion will receive their share of the NSF based on the number of weeks worked from April 29, 2009 through June 30, 2013, as a technician, service technician, or mechanic paid on a Flat Rate Basis under the Challenged Pay Plan. The Class Benefit will be characterized as 60% wages, which amount will be reduced by applicable payroll tax withholdings and deductions and for which an IRS Form W-2 will be issued; the remaining 40% will be characterized as non-wage damages, e.g., interest, for which an IRS Form 1099 will be issued. 9. How much will my Class Benefit be? The precise amount of your Class Benefit will depend on your dates of employment, the number of weeks worked as a Class Member from April 29, 2009, to June 30, 2013, and the estimated amount you will receive minus any applicable tax withholding. The attached Employment Information Sheet includes the information upon which your share of the Class Benefit will be based, i.e., your dates of employment during the period from April 29, 2009, to June 30, 2013, and based on that information, also shows the estimated amount of your Class Benefit check should the Court grant final approval of the proposed Settlement. HOW TO GET A PAYMENT 10. How can I get my Class Benefit check? If you do nothing, you will automatically receive your Class Benefit if the Court approves the proposed Settlement at the Final Fairness Hearing. You must, however, notify the Settlement Administrator of any change in your name or mailing address. It is your responsibility to keep the Settlement Administrator informed of any change in your name or address, as your Class Benefit check will be mailed to the last known address on file. A Change of Address Form and a preprinted, return envelope have been enclosed for your convenience. It is strongly recommended that you retain a copy of the completed Change of Address Form until you receive your Class Benefit check. 11. What do I do if the number of weeks is wrong? The amount of your Class Benefit check will be based on the number of weeks worked as a Class Member at any time during the period April 29, 2009, through June 30, The number of weeks you worked during this period is shown on the attached Employment Information Sheet and is based on Carwell s records. If you believe the number of weeks worked shown on the Employment Information Sheet is not correct, you must postmark on or before October 8, 2015, a letter to the Settlement Administrator indicating what you believe the correct dates are. You should include any documents or other information which supports your belief regarding the number of weeks worked as a Class Member. The Settlement Administrator will resolve any dispute based on Carwell s records and any information which you provide. 12. When can I expect to receive my Class Benefit? If you do not exclude yourself from the proposed Settlement, your share of the Settlement will be paid if the Court grants Final Judicial Approval of the proposed Settlement approximately 30 business days after Final Judicial Approval. Class Members receiving a Class Benefit check will be responsible for correctly characterizing this compensation for tax purposes and paying any taxes due, if any. Page 4 of 8

5 Class Benefit checks generally shall expire one hundred fifty (150) days after they are issued, and shall so indicate on their face. Thus, it is important that you cash your check before the 150-day expiration period. If a check remains uncashed after the expiration period, the funds represented by the uncashed checks will be donated to a charitable organization, the United Way of California, What am I giving up to get a Class Benefit? Unless you exclude yourself, you will remain in the Class, and that means that you cannot bring any claims or be part of any other proceedings against Carwell as described in detail in the Settlement Agreement and General Release and below. Specifically, you will be giving up or releasing the claims described below: A. Released Claims: After the Court has finally approved the proposed Settlement, the Settlement will fully release and discharge Carwell as provided in Section V of the Settlement Agreement and General Release. The discussion below captures the key release provisions, but there are more details in the Settlement Agreement and General Release that you should consult for a more detail discussion of the release. Effective upon the date of Final Judicial Approval, 6 the Plaintiff Class Releasing Parties, 7 and each of them, collectively, individually, separately, and severally, shall release and forever discharge the Defendant Released Parties 8 from the Released Claims 9 which the Plaintiff Class Releasing Parties ever had, now have, or may have arising out of or relating directly or indirectly in any manner whatsoever to the facts alleged or asserted in the Action, and all claims which were or could have been asserted based on the facts asserted in the Action, and including but in no way limited to any claims related directly or indirectly in any manner whatsoever to those 6 Final Judicial Approval means ten (10) days after the Final Judgment and Order is rendered not subject to any appeal, attempt to re-open the judgment, or request to extend the time to seek an appeal or, if an appeal had been sought, the expiration of ten (10) days after the last of (1) the final disposition of any such appeal and (2) any further proceedings in the Court or on subsequent appeal, which ultimate disposition approves the Court s Final Judgment and Order. 7 Plaintiff Class Releasing Parties means Plaintiff and each Settlement Class Member and each of his, respectively, administrators, agents, assigns, attorneys, children, heirs, executors, legatees, offspring, personal and legal representatives, current or former spouses, successors, and trustees. This definition does not apply to children and spouses insofar as they attempt to enforce any claim unrelated to any Released Claims and that is not derivative of any right of Plaintiff or any Settlement Class Member. 8 Defendant Released Parties means Carwell, AutoNation, and each of their affiliates, parents, and subsidiaries, and their respective past and present accountants, administrators, affiliates, agents, assigns, attorneys, auditors, brokers, consultants, directors, divisions, employees, executors, fiduciaries, general partners, heirs, insurers, joint venturers, law firms, licensors, limited partners, members, officers, owners, parents, partners, predecessors, principals, privies, reinsurers, representatives, shareholders, subsidiaries, successors, vendors, and all persons acting by, through, under, or in concert with them, or any of them. 9 Released Claims means and includes without limitation (1) any and all accusations, actions, agreements, allegations, arbitrations, causes of action, charges, claims, contracts, controversies, damages, demands, disputes, grievances, judgments, lawsuits, liabilities, liens, obligations, promises, and rights or proceedings of any and every kind; (2) whether based on constitutional, federal, local, municipal, or state law or executive order; (3) whether arising under common law, contract (oral or written and express or implied), equity, ordinance, order, public policy, regulation, statute, tort, or on any other theory of recovery; (4) whether asserted or unasserted, choate or inchoate, known or unknown, suspected or unsuspected, and foreseen or unforeseen; (5) whether contingent or fixed; (6) whether on an individual, class, collective, derivative, private-attorney-general, representative, or on any other basis or in any other capacity; and (7) including all forms of relief and remedies, such as all benefits, civil or statutory penalties, claims in equity and for equitable relief, costs, damages (including civil, compensatory, economic or non-economic, exemplary, general, liquidated, punitive, special, and statutory damages), debts, declarations, disbursements, expenses, fees, injunctions, interest, liabilities, losses, minimum wages, overtime wages, premium pay, tool allowance, tool reimbursement, waiting time penalties, and attorneys and other professionals costs, disbursements, expenses, and fees, and any other form of relief or remedy in law or equity, of whatever kind or nature whatsoever. By way of illustration only and by no means intending to limit the forgoing, Released Claims include claims as follows: claims for or related to unpaid minimum, overtime, double-time, and other wages or that such wages were not paid on separation; claims for or related to missed meal or rest breaks or unpaid rest breaks; claims for or related to recordkeeping violations; claims for or related to paystub violations or any purported failure to provide accurate or itemized wage statements; and claims for or related to failure to reimburse employees for equipment or tools. Page 5 of 8

6 claims raised by Plaintiff in any pleading, motion, or brief, from the beginning of the world through the execution hereof ( Plaintiff Class Release ). It is expressly intended and understood by the Parties that this Agreement is to be construed as a complete settlement, accord, and satisfaction of the Released Claims. With respect to the claims covered by Section V of the Settlement Agreement and General Release, the Class Representative and the Plaintiff Class Releasing Parties stipulate and agree that, effective upon the date of Final Judicial Approval, they shall be deemed to have, and by operation of the Final Order and Judgment shall have, expressly waived and relinquished, to the fullest extent permitted by law, the provisions, rights and benefits of Section 1542 of the California Civil Code, which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. In addition, notwithstanding the choice of law provision in this Agreement, and to the fullest extent that any other law may be deemed applicable despite the choice of law provision herein, the Plaintiff Class Releasing Parties hereby agree that all federal or state laws, rights, rules, or legal principles similar, comparable, or equivalent to the provisions of Section 1542 of the Civil Code of the State of California, are hereby knowingly and voluntarily waived and relinquished. EXCLUDING YOURSELF FROM THE SETTLEMENT 14. How do I exclude myself from the proposed Settlement? If you wish to pursue your own separate claims against Carwell that the proposed Settlement releases, or if you otherwise wish not to participate in the proposed Settlement for whatever reason, you should exclude yourself ( opt out ) from this case. To do so, you must mail a request to be excluded to Class Counsel, Carwell s Counsel and the Settlement Administrator postmarked no later than thirty (30) days after mailing of the Notice Packet, on or before October 8, Untimely requests for exclusion will not be considered. The request for exclusion must be personally signed by the Class Member who seeks to opt out. A Class Member requesting to be excluded must set forth the following in writing: a) The case caption; b) The full name, address, and telephone number of the person opting out; c) The term Request for Exclusion at the top of the document; and d) A declaration stating: I request that I be excluded from the Settlement in Pavel Djukich v. Carwell, LLC, No. CV BRO (AGRx). I understand that by requesting to be excluded from the Settlement Class, I will not receive any benefits under the Settlement. The mailing addresses for Class Counsel and Carwell s Counsel are noted above. The mailing address of the Settlement Administrator is as follows: No. Djukich v. Carwell, LLC c/o CPT Group, Inc Aston Irvine, CA If I do not exclude myself, can I bring claims the proposed Settlement releases against Carwell later? Page 6 of 8

7 16. If I exclude myself, can I get money from this proposed Settlement? No. If you exclude yourself, you will not receive a Settlement Payment. The Settlement Payment that you would have been entitled to receive will be redistributed to the remaining participating Class Members. No portion of the Gross Settlement Fund will go back to Carwell as a result of a request to be excluded. OBJECTING TO THE SETTLEMENT 17. How do I tell the Court that I do not like the proposed Settlement? If you do not think the proposed Settlement is fair or would like to object for some other reason, you can do so. Any Class Member who has not opted out of the Settlement, claims the Settlement is not adequate, fair, or reasonable, and wishes to object to the Settlement or otherwise intervene must file a written objection with the Court and serve the written objection on Class Counsel, Carwell s Counsel, and the Settlement Administrator postmarked no later than thirty (30) days after mailing of the Notice Packet on or before October 8, Class Members shall not be entitled to speak at the Final Fairness Hearing unless they have submitted a valid and timely written objection, and request to speak at the hearing pursuant to this paragraph or unless requested to speak by the Court. The written objections must set forth the following: a) The case caption; b) The full name, address, and telephone number of the person objecting; c) Evidence that the person is a Class Member; d) The word Objection at the top of the document; e) A statement of each Objection being asserted and the basis for each Objection; and f) A notice of intent to appear at the Final Fairness Hearing if there is an intention to speak at the Final Fairness Hearing. The mailing addresses for the Court, the Settlement Administrator, Class Counsel, and Carwell s Counsel are noted above. 18. What s the difference between objecting and excluding myself ( opting out )? Objecting is simply telling the Court that you don t like something about the Settlement. You can object only if you stay in the Class. Excluding yourself ( opting out ) is telling the Court that you don t want to be part of the Class. If you exclude yourself, you have no basis to object because the case no longer affects you. If you object to any of the terms of the Settlement, the Court will consider your objections when deciding whether to grant final approval to the Settlement at the final fairness hearing. THE COURT S FINAL FAIRNESS HEARING 19. When and where will the Court decide whether to approve the proposed Settlement? The Court will hold a Final Fairness Hearing in Department 14, United States District Court, For the Central District of California, Western Division, 312 North Spring Street, Los Angeles, CA on November 9, 2015, at 1:30 p.m. At this Final Fairness Hearing the Court will determine whether the proposed Settlement should be finally approved as fair, reasonable, and adequate. The Court will also be asked to approve Class Counsel s request for Attorneys Fees, Costs, the Enhancement or Service Payment Award, and the Settlement Administration Expenses. The Court may reschedule the Final Fairness Hearing without further notice to Class Members. Page 7 of 8

8 20. Do I have to come to the hearing? No. Class Counsel will answer any questions the Court may have. But you are welcome to come at your own expense. GETTING MORE INFORMATION 21. Who can I contact if I have questions about the proposed Settlement? You may contact the attorneys for the Plaintiff/Class Representative, Class Counsel, listed above if you have any questions about the proposed Settlement. You may also contact the Settlement Administrator by calling toll free 1-(888) , or you can write to Djukich vs. Carwell, LLC, c/o CPT Group, Inc., Aston, Irvine, CA Please do not contact the Clerk of the Court, the Judge, Carwell, or Carwell s Counsel. ADDITIONAL IMPORTANT INFORMATION A. Carwell will not retaliate in any manner whatsoever against any Class Member who stays in the Class and receives his Class Benefit or opts out of the Settlement. B. To receive your Class Benefit check, it is your responsibility to ensure that the Settlement Administrator has your current mailing address and telephone number on file. Again, if your address shown on the attached Employment Information Sheet is not accurate, you must return the enclosed Change of Address form to the Settlement Administrator. You may contact the Settlement Administrator at the toll-free number listed at the bottom of each page to confirm it has been received. Page 8 of 8