NOTICE OF PROPOSED CLASS ACTION SETTLEMENT

Transcription

1 NOTICE OF PROPOSED CLASS ACTION SETTLEMENT Elizabeth Ortiz, et al. v. Ghirardelli Chocolate Company Superior Court of California, Alameda County, Case No. RG It is your responsibility to change or update your name and/or address information by contacting the Claims Administrator at CPT Group Inc., Aston, Irvine, CA or by telephone at 1(888) PLEASE READ THIS ENTIRE NOTICE CAREFULLY. A court authorized this Notice. This is not a solicitation from a lawyer. ATTENTION: If you worked as an hourly-paid, non-exempt employee for Ghirardelli Chocolate Company in its restaurant & retail division at any time between March 27, 2011 and March 27, 2016, you may be eligible to receive a share of a proposed class action settlement. The purpose of this Notice is to explain your legal rights regarding a settlement reached in a class action lawsuit on behalf of all persons who served as an hourly employee for Ghirardelli Chocolate Company s ( Ghirardelli ) Restaurant & Retail Division at any time from March 27, 2011 to March 27, 2016 (the Settlement ). According to Ghirardelli s records, you may be a Class Member, and may be entitled to receive a share of the Settlement. If you are a member of the class and received this Notice, you have the following options: A. DO NOTHING AND RECEIVE PAYMENT B. OBJECT C. EXCLUDE YOURSELF If you do nothing, and the settlement is granted final approval by the Court, you will receive a settlement payment, and you also will give up your right to file your own lawsuit or participate in any other lawsuit against Ghirardelli concerning the claims being released in the case. (See Section 4.A below.) File an objection with the Court explaining why you object to the Settlement. (See Section 4.B below.) Submit a written request to opt out of the Settlement, and thereby exclude yourself from the Settlement. You will give up your right to receive payment in this lawsuit but may pursue claims that you may have against Ghirardelli at your own expense. (See Section 4.C below.) Ghirardelli has a longstanding policy against retaliation, and has specifically agreed as a term of the Settlement that it will not retaliate or take any adverse action against any individual solely for participating in the Settlement or seeking to exclude themselves from the Settlement. 1. WHAT THE LAWSUIT IS ABOUT: There is a pending class action lawsuit entitled Elizabeth Ortiz, et al. v. Ghirardelli Chocolate Company (the Lawsuit ) against Ghirardelli Chocolate Company. The Lawsuit was brought on March 27, 2015, on behalf of current and former hourly-paid, non-exempt employees of Ghirardelli. The Lawsuit is Case Number RG pending in the Superior Court of California, Alameda County, before the Honorable George C. Hernandez, Superior Court Judge. Page 1

2 By way of the Lawsuit, Plaintiffs Elizabeth Ortiz and Mikael Seabury ( Plaintiffs ) allege that hourlypaid, non-exempt employees of Ghirardelli were not paid for all hours worked. The Lawsuit also alleges that hourly-paid, non-exempt employees were not provided meal and rest breaks as legally mandated, were not reimbursed for business expenses, were issued non-compliant wage statements, and were not timely paid all wages due and owing upon termination. Through these alleged practices, Plaintiffs assert that Ghirardelli has also engaged in unfair business practices that violate Section of the California Business and Professions Code. Ghirardelli has vigorously denied, and continues to deny, all liability with respect to any and all of the facts or claims asserted in the Lawsuit, denies that it engaged in any wrongdoing, denies that it acted improperly in any way, and denies any liability to Plaintiffs, to the Class, or to any third party. Ghirardelli further asserts that the Lawsuit is not suitable for class action treatment under California law, except for the purpose of settlement. The Lawsuit has been actively litigated since it was filed. The parties have conducted informal and formal discovery and have exchanged detailed information about the claims, defenses, and alleged damages at issue. After lengthy settlement negotiations and a mediation session overseen by an independent and experienced mediator, the parties reached a class action settlement. The Settlement is memorialized by way of: the Joint Stipulation of Settlement and Release, which is on file with the Court as Exhibit 1 to the Declaration of Edwin Aiwazian in Support of Plaintiffs Motion for Preliminary Approval of Class Action Settlement, filed on December 28, 2016, the Amendment No. 1 to Joint Stipulation of Settlement and Release, which is on file with the Court as Exhibit 1 to the Supplemental Declaration of Edwin Aiwazian in Support of Plaintiffs Motion for Preliminary Approval, filed on March 9, 2017, and the Amendment No. 2 to Joint Stipulation of Settlement and Release, which is on file with the Court as Exhibit 1 to the Further Supplemental Declaration of Edwin Aiwazian in Support of Plaintiffs Motion for Preliminary Approval, filed on March 15, 2017 (together, the Settlement Agreement ). See Section 8 of this Notice for more information on how to access the Settlement Agreement. On March 16, 2017, the Court granted preliminary approval of the Settlement, appointed Plaintiffs to be representatives of the Class ( Class Representatives ), appointed the law firm of Lawyers for Justice, PC as counsel for the Class ( Class Counsel ), and authorized CPT Group, Inc. to administer the notice, claims, and settlement process ( Claims Administrator ). 2. TERMS OF THE SETTLEMENT Subject to the Court s approval, the terms of the Settlement are as follows: A. Gross Settlement Amount. Ghirardelli will pay a total sum of Two Million Dollars ($2,000,000) (the Gross Settlement Amount ) to settle the Lawsuit in its entirety. B. Net Settlement Amount. The Net Settlement Amount is the amount available for distribution the Class Members, after deducting the following payments (explained in detail in Sections 2.C- F below), as approved by the Court, from the Gross Settlement Amount: Enhancement Payments to the Class Representatives, payment to the Claims Administrator for the Claims Administration Costs, payment to the State of California for its share of civil penalties, and payment to Class Counsel for attorneys fees and reimbursement of litigation costs and expenses. C. Enhancement Payments to the Class Representatives. A maximum of $7,000 to Class Representative Elizabeth Ortiz and $5,000 to Class Representative Mikael Seabury for their Page 2

3 contributions to the Lawsuit and efforts on behalf of the Class (for a total of $12,000) ( Enhancement Payments ). D. Claims Administration Costs. Up to $25,000 to the Claims Administrator to, among other things, update Class Members addresses, mail notices, and administer payments. E. Payment to the State of California for its Share of Civil Penalties. The Settlement provides for civil penalties pursuant to the Private Attorney General Act, California Labor Code section 2699, in the total amount of $25,000. Seventy-five percent (75%) of this amount, or $18,750, will be paid to the California Labor and Workforce Development Agency ( LWDA ); and twenty-five percent (25%), or $6,250, will be distributed to Class Members who do nothing (and thereby participate in the Settlement) and receive payment pursuant to Section 4.A below. F. Class Counsel s Attorneys Fees and Litigation Costs and Expenses. Attorneys for Plaintiffs and the Class will ask that the Court award them attorneys fees for handling the Lawsuit on behalf of the Class, in an amount not to exceed 35% of the Gross Settlement Amount ($700,000) and reimbursement of litigation costs and expenses that they incurred on behalf of the Class, in an amount not to exceed $37, PAYMENTS TO PARTICIPATING CLAIMANTS & YOUR ESTIMATED SHARE Calculation of Settlement Awards. All Class Members who do not opt out of the Settlement by following the procedures in Section 4.C of this Notice ( Participating Claimant(s) ) shall be entitled to receive their pro rata share of the Net Settlement Amount ( Settlement Award ). The amount of Settlement Award to each Participating Claimant will be calculated based on the number of calendar days that they were employed during the Class Period as an hourly-paid, non-exempt employee in the Restaurant & Retail Division during the Class Period ( Qualifying Days ). Assuming that the Court approves all requested amounts set forth in Sections 2.C- F above, the Net Settlement Amount is currently estimated to be $1,206,750. Your estimated gross Settlement Award has been calculated based on the assumption that all Class Members participate in the Settlement. If fewer than 100% of the Class Members participate, your Settlement Award might increase. Payment will only be made to Class Members participating in the settlement after the Court has granted final approval of the Settlement. Disputing Qualifying Days. Ghirardelli provided the Claims Administrator with certain records regarding each Class Member s employment with Ghirardelli, including the number of his or her Qualifying Days used to calculate your estimated share of the Settlement. If you disagree with the length of employment (in number of calendar days) as an hourly-paid, non-exempt employee in Ghirardelli s Restaurant and Retail Division during the Class Period, as stated above, you may submit a written explanation of why you disagree and provide documentation which supports your position. You must submit your written explanation and documents to the Claims Administrator, by mail and postmarked no later than May 30, The pre-printed information regarding your Qualifying Days, based on Ghirardelli s employment records, shall be presumed to be correct unless proof to the contrary is provided to the Claims Administrator. If there is a dispute about whether Ghirardelli s information or your information is accurate, and the dispute cannot be resolved informally, the dispute will be resolved by the Claims Administrator. Determinations by the Claims Administrator will be final and binding with no opportunity for further appeal. Tax Matters. The Settlement Award is subject to legally required employer s and employee s share of employment and payroll taxes on the portion allocated for settlement of wages. Settlement Awards will be allocated as follows: 52% to settlement of wage claims, which will be subject to required federal, state, and local employer and employee s share of employment and payroll tax withholdings, 15% to settlement of claims Page 3

4 for interest, and 33% to statutory penalties and non-wage payments, which will be paid without withholding any amount. The portion allocated to wages shall be reported on an IRS Form W-2, and the portion allocated to interest, penalties, and non-wage payments shall be reported on an IRS Form YOUR RIGHTS AND OPTIONS You have three options under the Settlement: (A) do nothing and receive your share of money under the Settlement; (B) object to the Settlement; or (C) exclude yourself from the Settlement. A. If You Do Nothing, You Will Receive Payment: If you do nothing, you will receive payment under the Settlement if the Court grants final approval of the Settlement. You will also be bound by the terms of the Settlement, including the release of certain claims under state law, as set forth in Section 5, below. B. To Object to the Settlement: If you have not opted-out of the Settlement and wish to object to the Settlement, you must file a written objection with the Court and serve copies of your objection on the following attorneys on or before May 30, ATTORNEY FOR THE CLASS: Edwin Aiwazian, Esq. (SBN ) Lawyers for Justice, PC 410 West Arden Avenue, Suite 203 Glendale, CA ATTORNEYS FOR GHIRARDELLI: Kelly Matayoshi (SBN ) Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA All objections must clearly and concisely explain the legal and factual basis for your objection, be signed, and must set forth your name, address, telephone number, and the name of this Lawsuit. If you file a written objection to the Settlement, you or your attorney may also appear in Court to argue your objection at the Final Approval Hearing. The address of the Court and the date, time, and place of the Final Approval Hearing are listed in Section 7 below. If you do not object in the manner described above, you shall be deemed to have waived any objections, and shall forever be foreclosed from objecting to the fairness or adequacy of the proposed Settlement, the payment of Class Counsel s attorneys fees and litigation costs and expenses, the Enhancement Payments to Class Representatives Elizabeth Ortiz and Mikael Seabury, and any other aspect of the Settlement. C. To Exclude Yourself from the Class and from the Settlement: If you wish to exclude yourself ( opt out ) from the Settlement, you must return a letter ( Exclusion Letter ) that (1) states your name and contact information, (2) clearly states that you wish to exclude yourself from the Settlement of the Lawsuit, and (3) sign, date, and return the letter to the Claims Administrator at the following address: Ghirardelli Chocolate Company Settlement Administrator c/o CPT Group, Inc Aston Irvine, CA To be valid, the request for exclusion must include all of the information stated above and be signed by the Class Member requesting exclusion. To be timely, the request for exclusion must be postmarked no later than May 30, If you submit a request for exclusion that is defective or untimely, your request for exclusion will be rejected and you will remain a member of the Class and be bound by the terms of the Settlement, including the release of claims as described in Section 5 below. Page 4

5 If you submit a timely and valid request for exclusion, you shall, for the purposes of this Settlement, be regarded as if you never were a party to the Lawsuit, shall not release the Released Claims (defined in Section 5 below), and shall not be entitled to any benefit as a result of the Settlement. 5. RELEASE OF CLAIMS If you do not timely submit a valid request to exclude yourself from the Settlement, you shall be deemed to have, and by operation of the Judgment that is entered in the Lawsuit shall have, fully, finally and forever released, relinquished, and discharged all Released Claims against Ghirardelli, its parent and sister companies, each of its and their affiliates, and all of its and their predecessors, successors, divisions, joint ventures and assigns, and each of these entities past or present directors, officers, employees, partners, members, principals, agents, ERISA plans, ERISA plan administrators, insurers, co-insurers, re-insurers, shareholders, attorneys, personal or legal representatives (the Ghirardelli Releasees ). The Released Claims include any and all claims, rights, unknown claims, demands, liabilities, costs and causes of action arising during the Class Period that have been pled or could have been pled based upon the factual allegations set forth in the operative complaint, including but not limited to the following: (1) any and all claims for the failure to pay any type of wages, and associated penalties and/or damages; (2) any and all claims for the failure to provide legally compliant meal and/or rest periods; (3) any and all claims for violation of payroll or wage record-keeping or itemization requirements, including without limitation any claims concerning time records, the timing of wage payments, or the manner or form of wage payments; (4) any and all claims for unreimbursed business expenses; (5) any and all claims for penalties, including without limitation liquidated and/or punitive damages relating to all claims released above; and (6) any and all claims for interest, costs, attorneys fees, equitable relief, or other types of available recovery relating to all claims released above. By participating in this Settlement, you agree and acknowledge that this is a reasonable compromise of disputed wage claims. The release of claims set forth herein is intended as a complete release of the Released Claims. 6. CLASS COUNSEL RECOMMENDS THE SETTLEMENT The claims alleged in the Lawsuits are novel and highly technical. In light of the substantial risk that you might not receive anything at all if the Lawsuit proceeds to trial, Class Counsel believes that the Settlement is in the best interests of the Class and is a reasonable compromise of disputed the claims. 7. FINAL APPROVAL HEARING The Court will hold a hearing ( Final Approval Hearing ) on July 13, 2017 at 2:30 p.m. (Pacific Standard Time), in Department 17 to determine whether the Settlement should be finally approved as fair, reasonable, and adequate. At that hearing, the Court will also decide whether to grant final approval of the requests for the Class Representative Enhancement Payments, and Class Counsel s attorney s fees and reimbursement of litigation costs and expenses. The Court is located at 1221 Oak Street, Oakland, California The hearing may be continued without further notice to the class. YOU MAY, BUT ARE NOT REQUIRED TO, APPEAR AT THE FINAL APPROVAL HEARING. 8. ADDITIONAL INFORMATION This is a summary of the basic terms of the Settlement. For the precise terms and conditions of the Settlement, you should consult the Joint Stipulation of Settlement and Release, which is on file with the Court as Exhibit 1 to the Declaration of Edwin Aiwazian in Support of Plaintiffs Motion for Preliminary Approval of Class Action Settlement filed on December 28, 2016, the Amendment No. 1, to Joint Stipulation of Settlement and Release, which is on file with the Court as Exhibit 1 to the Supplemental Declaration of Edwin Aiwazian in Support of Plaintiffs Motion for Preliminary Approval, filed on March 9, 2017, and the Amendment No. 2 to Page 5

6 Joint Stipulation of Settlement and Release, which is on file with the Court as Exhibit 1 to the Further Supplemental Declaration of Edwin Aiwazian in Support of Plaintiffs Motion for Preliminary Approval, filed on March 15, You may view the Settlement Agreement and sample Notice of Proposed Class Action Settlement on the Claims Administrator s Website at The pleadings and other records in this Lawsuit, including the Settlement Agreement, may be examined online on the Alameda County Superior Court s website, known as DomainWeb, at: After arriving at the website, click the Search By Case Number link, complete the Website Terms of use and Disclaimers, and then enter RG as the case number and click Search. Images of every document filed in the case may be viewed through the Register of Actions at a minimal charge. You may also view images of every document filed in the case free of charge by using one of the computer terminal kiosks available at each court location that has a facility for civil filings. If you have any questions about the Settlement, you may contact Class Counsel at the address and telephone numbers listed below. PLEASE DO NOT TELEPHONE THE COURT, GHIRARDELLI, OR GHIRARDELLI S COUNSEL ABOUT THIS NOTICE. ATTORNEYS FOR THE CLASS: Edwin Aiwazian, Esq. Lawyers for Justice, PC 410 West Arden Avenue, Suite 203 Glendale, California Telephone: (818) UPDATE YOUR NAME AND ADDRESS INFORMATION The Claims Administrator has the name and address information on file for you, that is stated on Page 1 of this Notice. It is your responsibility to change or update this information by contacting the Claims Administrator at CPT Group Inc., Aston, Irvine, CA or by telephone at 1(888) Page 6