UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY NOTICE OF PROPOSED SETTLEMENT AND FAIRNESS HEARING

Transcription

1 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY NOTICE OF PROPOSED SETTLEMENT AND FAIRNESS HEARING This notice relates to the proposed settlement of a class and collective action lawsuit against First Student Management LLC and First Student, Inc. ( Defendants ). The Court did not find that Defendants did anything wrong, and the Court has not yet decided whether it will certify classes for settlement purposes. Rather, the Court has authorized notice of the Parties proposed settlement, and Defendants records show that you may be entitled to receive notice of the Litigation and that you may be entitled under certain circumstances to receive an award under the settlement. This notice contains information about the lawsuit, your eligibility to participate in the proposed settlement, the procedures you must follow in order to receive a payment, and other important information about the settlement. Your legal rights are affected whether you act, or do not act. Your options are explained in this notice. Please read it carefully. Also, this notice explains how you can obtain further information. October 30, 2014 is the deadline for certain actions which impact on your legal rights and the settlement payment that you may be entitled to receive. 1

2 TABLE OF CONTENTS PAGE BASIC INFORMATION WHY DID I GET THIS NOTICE? WHAT IS THE LITIGATION ABOUT? WHAT IS A CLASS ACTION, OR A COLLECTIVE ACTION, AND WHO IS INVOLVED? WHY IS THERE A SETTLEMENT?... 4 THE PROPOSED SETTLEMENT BENEFITS WHAT DOES THE PROPOSED SETTLEMENT PROVIDE? HOW MUCH WILL MY PAYMENT BE? ARE MY LEGAL RIGHTS AFFECTED IF I SUBMIT A CLAIM FORM? ARE MY LEGAL RIGHTS AFFECTED IF I DO NOT SUBMIT A CLAIM FORM? WHAT HAPPENS IF THE PROPOSED SETTLEMENT BENEFITS REMAIN AVAILABLE AFTER THE SETTLEMENT PAYMENTS ARE DISTRIBUTED?... 5 THE LAWYERS REPRESENTING YOU DO I HAVE A LAWYER IN THIS LITIGATION? HOW WILL CLASS COUNSEL BE PAID?... 5 HOW YOU GET A PAYMENT -- SUBMITTING A CLAIM FORM HOW CAN I GET A PAYMENT? WHAT IS THE CURRENT EMPLOYEE CERTIFICATION? WHAT IS THE DEADLINE? WHEN WILL I GET MY SETTLEMENT PAYMENT?... 6 EXCLUDING YOURSELF FROM THE SETTLEMENT CAN I DECIDE NOT TO PARTICIPATE IN THE SETTLEMENT? HOW DO I OPT-OUT OF THE SETTLEMENT? WHAT HAPPENS IF I EXCLUDE MYSELF? WHAT HAPPENS IF I DO NOT EXCLUDE MYSELF?... 7 OBJECTING TO THE SETTLEMENT HOW DO I OBJECT TO THE SETTLEMENT? WHAT HAPPENS IF THE COURT REJECTS MY OBJECTION? WHAT IS THE DIFFERENCE BETWEEN OBJECTING AND ASKING TO BE EXCLUDED?... 8 THE COURT S FAIRNESS HEARING WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT? DO I HAVE TO COME TO THE HEARING? MAY I SPEAK AT THE HEARING?... 8 NO RETALIATION OR DISCRIMINATION IF I AM A CURRENT EMPLOYEE, WILL I EXPERIENCE ANY RETALIATION OR DISCRIMINATION?... 8 ADDRESS CHANGES WHAT IF MY ADDRESS CHANGES?... 8 IF YOU DO NOTHING WHAT HAPPENS IF I DO NOTHING AT ALL?... 9 GETTING MORE INFORMATION ARE THERE MORE DETAILS ABOUT THE SETTLEMENT? HOW DO I GET MORE INFORMATION?

3 1. Why Did I Get This Notice? You received this Notice because: BASIC INFORMATION Defendants records show that you work or worked for First Student at the Lawnside, Burlington, Berlin, Delran, Chatham or Cologne facilities as a Driver or Aide (a.k.a. Monitor) at any time during the period from March 21, 2011 to December 31, 2013 and, therefore, you potentially are a member of the Settlement Classes 1 ; If Defendants or the Court s records are incorrect and you do not fall within the above descriptions, please disregard this notice and the accompanying Claim Form and call the Claims Administrator, whose telephone number is on the last page of this notice, to explain that you are not a member of a Settlement Class. If you have any questions about whether or not you are a member of the Settlement Classes, you may contact the Claims Administrator. If you are a member of the Settlement Classes, you have legal rights and options that you may exercise. United States District Judge Joseph E. Irenas of the United States District Court for the District of New Jersey is supervising this Litigation. 2. What Is The Litigation About? The Litigation was filed in New Jersey on March 21, 2013, as a collective action on behalf of the Named Plaintiffs and other individuals who were employed as drivers or aides. The Litigation alleged that Defendants failed to pay employees for all hours worked in violation of the Fair Labor Standards Act ( FLSA ) and New Jersey Wage and Hour Law ( WHL ). The Litigation recently was amended for settlement purposes only. The amendments added claims on behalf of a class of which you may be a member. The Parties conducted a thorough investigation into the factual and legal issues raised in the Litigation, including a review and analysis of Defendants policies as well as employees time and payroll records, and interviewing numerous witnesses. During this Litigation the parties used an experienced, neutral third-party mediator who is a former federal magistrate judge to assist in their settlement discussions. Recently, the Parties were able to negotiate a tentative agreement to resolve the claims asserted in the Litigation. The Parties submitted their agreement to the Court, which authorized notice of the proposed settlement on August 6, What Is A Class Action, Or A Collective Action, And Who Is Involved? In a class action lawsuit, one or more people called Named Plaintiffs (in this case Frank Koehler and Darlene Kennedy) sue on behalf of other people who they believe have similar claims. The people together are a Class or Class Members. The company they sued, First Student, is called the Defendant. When the Court certifies a class, it resolves the issues for everyone in the class except for those people who choose to exclude themselves from the class. Under the federal FLSA, there is a similar process for resolving the claims of a group of people with allegedly similar claims. This process is called a collective action instead of a class action. Under that law, the Court resolves the issues for those eligible to and who choose to participate in the collective action. The Court here has not yet certified the Litigation as a class action or as a collective action, but has authorized that this notice be sent to potential class members while the Court decides those issues. 1 The Settlement Agreement provides that the following two groups of individuals may be eligible to receive proceeds from the settlement: Rule 23 Settlement Class; and FLSA Settlement Class. 3.

4 4. Why Is There A Settlement? Patrick T. Cronin of Cronin and Musto and Steven A. Berkowitz of Berkowitz & Associates, P.C. ( Class Counsel ) believe that further proceedings in the Litigation, including trial and probable appeals, would be very expensive and protracted and uncertain as to the chances of success and the amount of damages, if any. Therefore, upon careful consideration of all of the facts and circumstances, Class Counsel believe that the settlement agreement is fair, reasonable, and adequate, and is in the best interest of the individuals who are eligible to participate. Defendants expressly deny any liability or wrongdoing of any kind associated with the claims in the Litigation. Defendants contend that they have complied with applicable federal and state law at all times. By entering into the Settlement Agreement, Defendants do not admit any liability or wrongdoing and expressly denies the same. It is expressly understood and agreed that the Settlement Agreement is being entered into by Defendants solely for the purpose of avoiding the costs and disruption of ongoing litigation and to settle all outstanding claims. THE PROPOSED SETTLEMENT BENEFITS 5. What Does The Proposed Settlement Provide? Defendant has agreed to create a fund consisting of $1,600, ( Maximum Gross Settlement Amount ) to resolve the Litigation. In consideration for settlement and a release of claims of the Settlement Classes, Defendants agree to make payments to those members of the Settlement Classes (or the authorized legal representative of such individuals) who mail in a valid Claim Form ( Authorized Claimant ) and consent to join this lawsuit by the deadline established by the Court. 6. How Much Will My Payment Be? If the Court approves the proposed settlement and you are eligible and submit a timely claim, you will receive a settlement check. The amount of your payment will depend on a number of factors including, among others, the number of days that you worked during the relevant time period. More details about the methods and factors used to calculate the settlement payments are available on the Claims Administrator s website You may contact the Claims Administrator to determine your estimated potential settlement payment. Each final settlement payment will be separated into two equal amounts: fifty percent (50%) will be allocated to the claims asserted in the lawsuit for unpaid overtime and other wage-related damages, and fifty percent (50%) will be allocated to the claims asserted in the lawsuit for liquidated damages and other relief. Each final settlement payment will be subject to all authorized or required deductions, including, but not limited to: local, state and federal taxes, garnishments, child support orders and tax levies/liens. The portion allocated to claims for unpaid overtime and other wage-related damages will be reported on an IRS Form W-2. The portion allocated to liquidated damages and other relief will be reported as nonwage income and reported on an IRS Form Are My Legal Rights Affected If I Submit A Claim Form? Yes The Settlement Agreement contains a release. If the proposed settlement agreement becomes final and you timely sign and submit a Claim Form, then you will be releasing Defendants and all related people and entities from all of the claims described in Section VIII of the Settlement Agreement titled Release of Claims; Waiver; Assignment of Rights. This means you will no longer be able to sue Defendants regarding any of the claims described in the Settlement Agreement. The enclosed Claim Form contains additional details about the release of claims. You may also contact the Claims Administrator, whose contact information is listed in Questions 13 and

5 8. Are My Legal Rights Affected If I Do Not Submit A Claim Form? Yes, if you do not submit a claim form and consent to join this lawsuit you will not be able to participate in the settlement and will not receive any settlement monies. Unless you request to exclude yourself from this lawsuit, you will not be able to start your own lawsuit, continue with a lawsuit, or be part of any other lawsuit against Defendant about the legal issues in this Litigation. If you do nothing, you may not receive any money from this proposed settlement. To exclude yourself from this law suit, please see the procedures listed in Question What Happens If The Proposed Settlement Benefits Remain Available After The Settlement Payments Are Distributed? Subject to Court approval, amounts not paid out of the Maximum Gross Settlement Amount through the procedure set forth in the Parties Settlement Agreement will remain the property of Defendant. 10. Do I Have A Lawyer In This Litigation? THE LAWYERS REPRESENTING YOU The Court decided that Patrick T. Cronin of Cronin and Musto and Steven A. Berkowitz of Berkowitz & Associates, P.C. are qualified to represent you and all other members of the Settlement Class. These lawyers are called Class Counsel. You do not need to hire your own lawyer because Class Counsel are working on your behalf. However, you are entitled to retain your own lawyer at your own expense. 11. How Will Class Counsel Be Paid? Class Counsel will ask the Court to approve payment of up to Four Hundred Sixty Two Thousand Dollars ($462,000) of the Maximum Gross Settlement Amount to them for attorneys fees. They also will ask the Court to approve payment of their costs incurred in prosecuting the Litigation. The fees would pay Class Counsel for investigating the facts, litigating the case, and negotiating the settlement. The Court has not yet ruled on whether it will award up to Four Hundred Sixty Two Thousand Dollars ($462,000) of the Maximum Gross Settlement Amount to Class Counsel for their fees, or what amount it may award to Class Counsel for their costs. The Court may award less than the amounts Class Counsel request. The Court will make a determination on the reasonableness of Class Counsel s application at a later date. HOW YOU GET A PAYMENT -- SUBMITTING A CLAIM FORM 12. How Can I Get A Payment? In order to become an Authorized Claimant and receive a settlement payment, you must complete and sign the Claim Form and Substitute W-9 Form and return it, via U.S. mail, to: Frank Koehler, et al. v. First Student Management LLC, et al. c/o Angeion Group 1801 Market Street, Suite 660 Philadelphia, Pennsylvania In addition, if you are employed by Defendants as of August 6, 2014, you must timely complete and return the enclosed Current Employee Certification. 5.

6 13. What Is The Current Employee Certification? Any member of the Settlement Classes who is a current employee as of August 6, 2014, and wishes to participate in the settlement by their signature agrees to: (1) carefully review Defendants payroll policies and procedures; (2) notify immediately my supervisor or Human Resources of any questions pertaining to these policies and procedures; (3) comply with Defendants payroll reporting policies and accurately report all working time in compliance with federal, state, and local wage and hour requirements; (4) carefully review my time records and paychecks and immediately notify my supervisor or Human Resources of any inaccuracies regarding the accuracy of that information; and (5) immediately report to my supervisor or Human Resources if I am instructed by anyone to work off-the-clock. If no response is received within three (3) business days, the individual must call Defendants compliance hotline or compliance officer for the facility at which he or she is employed. The phone numbers to call are listed in Exhibit A of this mailing. 14. What Is The Deadline? The deadline for the Claims Administrator to receive your Claim Form, Substitute W-9 Form, and Current Employee Certification (if applicable) is October 30, Your forms must be received by the Claims Administrator by this deadline in order to be considered timely. If you lose, misplace, or need another one of these documents, contact the Claims Administrator at the address and/or phone number listed above. 15. When Will I Get My Settlement Payment? If you are eligible, your settlement payment will be mailed to you after final Court approval, assuming final Court approval of this proposed settlement, and assuming all rights to appeals, or appeals actually filed, are exhausted at that time. Please be patient. EXCLUDING YOURSELF FROM THE SETTLEMENT 16. Can I Decide Not To Participate In The Settlement? You may choose not to participate in the proposed settlement by excluding yourself (i.e. opt-out ) from it. 17. How Do I Opt-Out Of The Settlement? To exclude yourself (opt out), you must send a letter (i.e. Request for Exclusion ) by mail saying that you want to be excluded from Koehler, et al. v. First Student Management LLC, et al. The letter must (i) include your full name (and former names, if any), current address, telephone number, and Social Security number; (ii) include a statement that you wish to be excluded from the class; (iii) must be personally signed by you; and (iv) and returned by First Class U.S. Mail, or the equivalent, to: Frank Koehler, et al. v. First Student Management LLC, et al. c/o Angeion Group 1801 Market Street, Suite 660 Philadelphia, Pennsylvania Note that the Request for Exclusion must be received by the Claims Administrator by October 30, Requests for Exclusion that do not include all required information, or that are not received by the Claims Administrator by October 30, 2014, will be deemed null, void, and ineffective. 6.

7 18. What Happens If I Exclude Myself? If you ask to be excluded in compliance with these requirements, you: (i) will have no rights under the Settlement Agreement; (ii) will not receive any settlement payment; (iii) cannot object to the settlement; and (iv) will not be bound by the Settlement Agreement, the Final Approval Order, or the final judgment. However, you will retain your right to assert on your own behalf any claims you have against the Company. 19. What Happens If I Do Not Exclude Myself? If you do not timely exclude yourself, you will be bound by the terms and conditions of the proposed settlement, the final approval order, the final judgment, and the release set forth therein. In short, unless you exclude yourself, you give up any right to sue Defendants for all of the claims that this proposed settlement resolves, except your individual claims under the FLSA will not be adjudicated in this lawsuit. 20. How Do I Object To The Settlement? OBJECTING TO THE SETTLEMENT If you are a member of the Settlement Classes, you can object to the settlement if you do not agree with the settlement or some part of it. You must object to the proposed settlement in writing. Any objections to the approval of the proposed settlement must include the following information: (i) your full name, address, date of birth, and the dates of your employment with First Student; (ii) each specific reason in support of your objection, any legal support for each objection, and any documentation supporting your objection; and (iii) the name and title of the lawsuit, Koehler, et al. v. First Student Management LLC, et al. You must mail copies of the objection to the Court, Class Counsel, and Defendants Counsel (addresses below) so that the objection is received by October 30, You may ask the Court for permission to speak at the Fairness Hearing, as described in Question 25, if you submit a timely objection. CLASS COUNSEL: Steven A. Berkowitz, Esq. Berkowitz & Associates, PC Lincoln Drive East, Suite 202 Marlton, New Jersey sberkowitz@contractorlawoffices.com Patrick T. Cronin, Esq. Cronin & Musto 9 Tanner Street, Suite 202 Haddonfield, New Jersey pcronin@croninmusto.llb1.com DEFENDANTS COUNSEL: Michael T. Grosso, Esq. Tedd J. Kochman, Esq. LITTLER MENDELSON, P.C. One Newark Center, 8th Floor Newark, New Jersey mgrosso@littler.com tkochman@littler.com COURT: Clerk of Courts United States District Court for the District of New Jersey Mitchell H. Cohen Building & U.S. Courthouse 4th & Cooper Streets Camden, NJ If you file an objection to the terms of this settlement, you must enter an appearance in propria persona (meaning you choose to represent yourself) or through your own attorney. To do so, you or your attorney must file an Entry of Appearance with the Clerk of the United States District Court for the District of New Jersey, and deliver copies to each of the attorneys listed above. Such Entry of Appearance must be filed with the Court and delivered to the above attorneys no later than October 30, You will then continue as a member of the Settlement Classes either in propria persona or with representation by your own attorney, and you will be solely responsible for the fees and costs of your own attorney. 7.

8 21. What Happens If The Court Rejects My Objection? If you intend to object to the settlement, but wish to receive a full settlement payment, you must timely file your Claim Form and Substitute W-9 Form (and Current Employee Certification, if applicable), as stated above in Questions If the Court approves the settlement despite your and/or any other objections, and you do not have a Claim Form and Substitute W-9 Form (and Current Employee Certification, if applicable) on file, you may not be eligible to receive any settlement payment. 22. What Is The Difference Between Objecting And Asking To Be Excluded? Objecting is telling the Court that you do not like something about the settlement. You can object if you stay in the Settlement Class. Excluding yourself is telling the Court that you do not want to be part of the proposed settlement. If you exclude yourself, you have no basis to object because the Litigation no longer affects you. THE COURT S FAIRNESS HEARING 23. When And Where Will The Court Decide Whether To Approve The Settlement? The Court will hold a fairness hearing on October 14, 2014 at 3:00 p.m. in Courtroom 1 at the United States District Court for the District of New Jersey, Mitchell H. Cohen Building & U.S. Courthouse 4th & Cooper Streets, Camden, New Jersey At this hearing, the Court will make a final determination of whether the settlement is fair, reasonable, and adequate and whether to approve the settlement. The hearing may be continued without further notice to members of the Settlement Classes. 24. Do I Have To Come To The Hearing? No. It is not necessary for you to appear at this hearing unless you have timely filed an objection with the Court and wish to be heard in support of your objection. 25. May I Speak At The Hearing? You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must send a letter saying it is your Notice of Intention to Appear in Koehler v. First Student Management LLC. Be sure to include your name, address, telephone number, and your signature. Your Notice of Intention to Appear must be received no later than October 14, 2014, and be sent to the Clerk of the Court, Class Counsel, and Defense Counsel, whose addresses are in Question 20. You cannot speak at the hearing if you excluded yourself (i.e., opted out). NO RETALIATION OR DISCRIMINATION 26. If I Am A Current Employee, Will I Experience Any Retaliation Or Discrimination? No. Defendants will not discriminate or retaliate against you because of your decision to participate or not in the Litigation or this settlement. 27. What If My Address Changes? ADDRESS CHANGES It is your responsibility to inform the Claims Administrator of your correct address. Please mail any change of address along with your Social Security number, date of birth, former address and new address to Frank Koehler v. First Student Management LLC, Settlement Administrator, c/o Angeion Group, 1801 Market Street, Suite 660, Philadelphia, Pennsylvania or call toll free. 8.

9 28. What Happens If I Do Nothing At All? IF YOU DO NOTHING You have the right to do nothing. If you do nothing, however, you will not receive any money from this proposed settlement. In addition, unless you exclude yourself, you will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Defendants about the legal issues in this Litigation. GETTING MORE INFORMATION 29. Are There More Details About The Settlement? This notice summarizes the basic terms of the proposed settlement. Further information is available from the Claims Administrator and/or Class Counsel. The pleadings and other records in the Litigation may be reviewed at any time during regular business hours at the Office of the Clerk of the United States District Court, District of New Jersey, Mitchell H. Cohen Building & U.S. Courthouse, 4th & Cooper Streets, Camden, New Jersey Please do not telephone the Court or the Office of the Clerk for information regarding the proposed settlement or the claim process. 30. How Do I Get More Information? You can call toll free; write to Koehler v. First Student Management LLC, Settlement Administrator, c/o Angeion Group, 1801 Market Street, Suite 660, Philadelphia, Pennsylvania 19103; or visit the website at where you will find additional information. In addition, you may contact Class Counsel whose contact information is provided in the response to Question