UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Transcription

1 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS NICHOLAS CHALUPA, Individually and on Behalf of All Other No. 1:12-cv Persons Similarly Situated, Plaintiff, v. UNITED PARCEL SERVICE, INC. Defendant. NOTICE OF PENDENCY OF CLASS ACTION AND PROPOSED CLASS ACTION SETTLEMENT Please Read This Notice Carefully, As It Describes Your Right To Participate In A Class Action Settlement. TO: ALL SEASONAL DELIVERY DRIVERS OF UNITED PARCEL SERVICE, INC. ( UPS WHO WORKED OUT OF FACILITIES LOCATED IN MASSACHUSETTS BETWEEN MAY 15, 2009 AND DECEMBER 31, 2011 (THE CLASS. BASED ON INFORMATION PROVIDED BY UPS, YOU ARE A PERSON WHO IS ENTITLED TO RECEIVE BENEFITS AS THE RESULT OF THE SETTLE- MENT OF THE ABOVE-CAPTIONED CASE. IF THE COURT GRANTS FINAL APPROVAL TO THE SETTLEMENT AND YOU DO NOT OPT-OUT OF THE SETTLEMENT IN THE MANNER DESCRIBED IN THIS NOTICE, YOU WILL RECEIVE A SETTLEMENT PAYMENT. YOU MAY OPT-OUT OF THIS LAWSUIT AND THE SETTLEMENT IF YOU CHOOSE TO DO SO. UNLESS YOU OPT-OUT OF THE SETTLEMENT, YOU WILL RELEASE ALL CLAIMS, KNOWN OR UNKNOWN, YOU MAY HAVE AGAINST UPS UNDER MASSACHUSETTS WAGE AND HOUR LAWS FOR ANY UNPAID WAGES DURING THE CLASS PERIOD. THIS NOTICE ONLY SUMMARIZES THE SETTLEMENT. FOR MORE INFOR- MATION OR TO OBTAIN A COPY OF THE SETTLEMENT AGREEMENT, CONTACT THE SETTLEMENT ADMINISTRATOR IDENTIFIED IN THE ANSWER TO QUESTION 6 BELOW.

2 1. Why Did I Get This Notice? The Court has approved this notice to tell you about a proposed settlement (the Settlement in this class action lawsuit and your rights under it. You have received this Notice because UPS s records suggest that you are a member of the Class in that you were employed by UPS as a seasonal delivery driver in Massachusetts between May 15, 2009 and December 31, 2011 (the Class Period. If so, you are a Class Member who will be entitled to receive money under the Settlement if it is approved by the Court. 2. What Is This Lawsuit About? The Plaintiff, Nicholas Chalupa, is a former UPS seasonal delivery driver. On May 15, 2012, he filed a class action lawsuit against UPS that alleged that he and other UPS seasonal delivery drivers in Massachusetts during the Class Period were not paid for all their hours worked, and in particular not paid for any time worked that was recorded as a lunch break. UPS has denied and continues to deny all wrongdoing, but it has agreed to this Settlement because of the expense of continuing the litigation. UPS does not oppose this Settlement and it will not retaliate against any person who receives his or her share of the Settlement. 3. What are the Terms of the Settlement? The Settlement provides for a Settlement Fund of $180,500 to be paid by UPS pursuant to the terms of the Settlement. The Settlement Fund will be allocated to the members of the Class on a pro rata basis according to the number of days that each Class Member worked for UPS as a seasonal driver in Massachusetts during the Class Period. In the event that some Class Members cannot be located, or for any reason do not cash their Settlement payment checks, any funds remaining in the Settlement Fund following the distribution of the Settlement payment checks will escheat to the Commonwealth of Massachusetts as unclaimed property in accordance with the provisions of M.G.L. c. 200A. The Settlement also provides that Class Members are releasing any claims they may have against UPS, whether known or unknown, for unpaid wages for their work as UPS seasonal delivery drivers in Massachusetts during the Class Period. 4. Will My Settlement Payment Be Taxed? The Settlement payment will be treated as wages for tax year 2013 and shall be reported to the IRS on Form W-2. The Settlement Administrator will withhold all federal and state income and employment taxes required to be withheld under the law and will make the appropriate deposits of withholding taxes and informational and other tax return filings. IRS Forms W-2 reflecting the wage payment will be distributed by the Settlement Administrator to the IRS and participating Class Members. You should consult with your tax advisor about the tax consequences of the payments you may receive under the Settlement. 5. What Are My Options? You have the following options under the Settlement: (a You may do nothing, in which case you will receive a settlement payment once the Settlement becomes final, and you will be bound by the Settlement s terms. If the Court 2

3 grants final approval of the Settlement, checks will be mailed to Class Members and be valid for 90 days from mailing; (b You may opt-out of the Settlement by sending a written request to do so to the Settlement Administrator in the manner described in Question 7, below, in which case you will not be bound by the Settlement; or (c You may object to the Settlement by submitting your written objections to the Settlement Administrator in the manner described in the answer to Question 8, below. 6. How Can I Contact The Settlement Administrator? The Settlement Administrator approved by the Court is Berdon Claims Administration LLC. If you wish to contact the Settlement Administrator, you may do so by toll-free telephone at , by fax at , by at (click on Contact Us, or by mail at UPS Wage & Hour Settlement, c/o Berdon Claims Administration LLC, P.O. Box 9014, Jericho, NY How Do I Opt-Out Of The Lawsuit And Settlement? If you do not want to receive a Settlement payment and want to maintain the right to pursue your own claims against UPS, then you must submit a written request to opt-out of the Settlement. Your written request to opt-out must include your full name, address, signature and a statement that you wish to opt-out of the lawsuit in Chalupa v. United Parcel Services, Inc., C.A. No. 1:12-cv (JCB. The request should be postmarked no later than December 21, 2013 and mailed to the Settlement Administrator, at the address listed in the answer to Question 6 above, and marked Exclusion. 8. How Do I Object To The Settlement? If you object to any aspect of the Settlement, you may submit a written objection for the Court to consider at the Settlement Hearing, which is scheduled to be held on January 22, Your objection must be in writing and include your full name, address, telephone number, signature, a statement that you object to the Settlement in Chalupa v. United Parcel Services, Inc., C.A. No. 1:12-cv (JCB, and the reason(s for your objection. If you or your lawyer intends to appear at the Settlement Hearing to argue your objection, you must say so in your written objection. You do not have to have counsel or appear at the Settlement Hearing in order to have the Court consider your objection. If you object to the Settlement but do not opt-out, you will remain a member of the Class. Any objections must be filed with the Court by no later than December 21, 2013, addressed to: Clerk of the Court, Re: 12-cv-10868, 1 Courthouse Way - Suite 2300, Boston, MA Copies of the objection must also be mailed to Class Counsel, Thomas G. Shapiro, Shapiro Haber & Urmy LLP, 53 State Street, Boston, Massachusetts and to UPS s counsel, Hugh F. Murray, Murtha Cullina LLP, 99 High Street, Boston, MA How Do I Correct My Name Or Address? It is your obligation to keep the Settlement Administrator informed about your current address and contact information. Therefore, if you move after receiving this Notice, or if it was misad- 3

4 dressed, or if for any reason you want your payment or future correspondence concerning this action and the Settlement to be sent to a different address, you should so advise the Settlement Administrator at the address in the answer to Question 6 above. 10. What Am I Giving Up If I Do Not Opt-Out Of The Settlement? If you do not opt-out of the Settlement and the Settlement is approved by the Court at the Settlement Hearing, you will receive your share of the Settlement Fund, and you will be bound by the judgment in the case. You will be precluded from bringing any claims against UPS in the future for nonpayment of wages for your work as a UPS seasonal delivery driver in Massachusetts during the Class Period. If you opt-out of the Settlement, you will not receive any money and you will not be deemed to have released or waived any such claims. 11. Who Are Class Counsel? The Court has appointed Plaintiffs lawyers as Class Counsel to represent the Eligible Class Members who participate in the Settlement. Class Counsel are: Thomas G. Shapiro Mark Stern Adam M. Stewart 34 Liberty Ave. Shapiro Haber & Urmy LLP and Somerville, MA State Street, ( Boston, MA ( ; ( Unless you opt-out of the Settlement, you will be represented by Class Counsel in connection with the Settlement. If you want to be represented by your own lawyer, you may hire one at your own expense. 12. Who Are UPS s Counsel? UPS is represented by Hugh F. Murray, Murtha Cullina LLP, 99 High Street, Boston, MA 02110; telephone: ( How Much Will Be Paid For Attorneys Fees and Expenses? The Massachusetts Wage Act provides the employer is required to pay the legal fees of an employee who sues for and recovers unpaid wages. In a class action like this one, the amount of fees paid to the employee s counsel must be approved by the Court. Class Counsel plan to request that the Court award them attorneys fees in the amount of $136,500, which includes their out of pocket expenses. UPS has agreed not to oppose this request. Any attorneys fees approved by the Court will be paid by UPS separate and apart from the Settlement fund and will not reduce the amount of payments to Class Members. 14. Will The Named Plaintiffs Get Any Additional Money? Under the Settlement, and subject to the Court s approval, in addition to his pro rata share of the Settlement Fund as a Class Member calculated in the manner described in the answer to Question 4

5 3 above, Plaintiff Chalupa would receive up to $3,000 in consideration of his role as class representative in this case and his contribution to the successful prosecution of the case, which included working with counsel, producing documents, and providing deposition testimony in support of the Class claims. As with the attorneys fees and expenses, any such payment to Plaintiff will be paid by UPS separate and apart from the Settlement Fund and will not reduce the amount of payments to Class Members. 15. When Will The Court Review The Settlement? The Court will hold a Settlement Hearing on January 22, 2014 at 11:30 a.m. to decide whether to approve the Settlement. At that time the Court will consider any objections to the Settlement, and Class Counsel s request for an award of attorneys fees, expenses and incentive payment for Mr. Chalupa. The hearing will take place in Courtroom 14 of the United States District Court for the District of Massachusetts, 1 Courthouse Way Suite 2300, Boston, MA You may attend the hearing if you wish to do so, but your attendance is not necessary or required. PLEASE DO NOT CONTACT THE COURT, UPS OR UPS S ATTORNEYS WITH QUESTIONS REGARDING THIS MATTER. QUESTIONS MAY BE DIRECTED TO CLASS COUNSEL, OR TO THE SETTLEMENT ADMINISTRATOR, AT THE ADDRESSES CONTAINED IN THE ANSWERS TO QUESTIONS 6 AND 11 ABOVE. Dated: November 6, 2013 BY ORDER OF THE COURT 5