A proposed settlement (the “Settlement”) has been reached regarding the claims that have been brought in this class action lawsuit (the “Action”). The Notice describes the case and will inform you of your rights and options in connection with the Settlement.
DO NOT CALL THE COURT OR THE CLERK OF THE COURT FOR INFORMATION ABOUT THIS LAWSUIT.Top
In the Second Amended Complaint (“Complaint”), Plaintiff, as the Class Representative, alleges the following claims (“Claims”) that Pacer: (1) misclassified drivers as independent contractors; (2) failed to provide meal break or premium pay in lieu thereof; (3) failed to provide rest breaks or premium pay in lieu thereof; (4) failed to pay overtime; (5) failed to pay the California minimum wage for all hours worked; (6) failed to timely pay all wages owed upon separation; (7) failed to furnish timely and accurate wage statements; (8) failed to pay all wages owed every pay period; (9) failed to fully reimburse business expenses; and (10) engaged in unlawful, unfair, and deceptive business practices. Pacer denies Plaintiff’s claims and contends that Plaintiff and the Class Members were properly classified as independent contractors and that the Action is not suitable for class certification.Top
The Settlement is a compromise and settlement of disputed claims and is not an admission of liability on the part of Pacer. The Settlement is the result of good faith, arm’s length negotiations between the Class Representative and Pacer, through their respective attorneys. Both sides agree that, in light of the risks and expenses associated with continued litigation, the Settlement is fair and appropriate under the circumstances and in the best interests of the Class Members. The Court has not ruled on the merits of Plaintiff’s claims or Pacer’s defenses.Top
The Court has certified, for settlement purposes only, the following class (the “Class”):
All current and former drivers who resided in the State of California and worked for Pacer Cartage, Inc. as independent contractor truck drivers between August 19, 2009 and February 26, 2016 (the “Settlement Class Period”).Top
If you are not sure whether you are in the Settlement Class, or have any other questions about the settlement, call Class Counsel at (213) 217-5000.Top
Subject to final Court approval, Pacer will pay a total of $4,250,000 (“Gross Settlement Amount”) for the payment of: (a) the claims; (b) the Court-approved Incentive Award to Plaintiff, as the Class Representative, if any; and (c) the Court-approved attorney fee award and expense award.Top
After deductions from the Gross Settlement Amount for Court-approved Incentive Award to Plaintiff, if any, the Court-approved award to Class Counsel for attorney fees and expenses, and the costs of administering the Settlement, the Settlement Administrator will make a settlement payment to each Class Member who does not request exclusion from the Settlement from the remaining amount (the “Net Settlement Amount”). Each Class Member will receive a pro rata share of the Net Settlement Amount based on the number of “weeks worked” credited to that person during the Settlement Class Period. Each Class Member’s “weeks worked” credit is based on Pacer’s records of weeks contracted as an independent contractor truck driver for Pacer during the Settlement Class Period.
None of the Parties or their attorneys makes any representations concerning the tax consequences of the Settlement or your participation in it. Class Members should consult with their own tax advisors concerning the tax consequences of the Settlement. Neither the Settlement Administrator nor the attorneys can offer any advice concerning the state or federal tax consequences of the Settlement to any Class Member.Top
Class Members will receive their payments by check only after the Court grants final approval to the settlement and after any appeals are resolved. If there are appeals, resolving them can take time. Please be patient.Top
Each Class Member who does not request exclusion (“Opt-Out”) from the Settlement will be deemed to have fully and finally released Pacer and its present and former parent companies, subsidiaries, divisions, affiliates, related companies, joint ventures, and each of their respective present and former officers, directors, shareholders, agents, employees, insurers, attorneys, accountants, auditors, advisors, representatives, consultants, pension and welfare benefit plans, plan fiduciaries, administrators, trustees, general and limited partners, predecessors, successors and assigns (collectively, the “Pacer Releasees”), from the following Claims, Derivative Claims, and rights under Cal. Civil Code § 1524 (“Section 1542”) (collectively, the “Released Claims”) to the extent they accrued during the Settlement Class Period:
Claims: The claims for relief under California law asserted in the Complaint, including, but not limited to, claims arising out of Pacer’s alleged (1) misclassification of Class Members as independent contractors; (2) failure to provide meal break or premium pay in lieu thereof; (3) failure to provide rest breaks or premium pay in lieu thereof; (4) failure to pay overtime; (5) failure to pay the California minimum wage for all hours worked; (6) failure to timely pay all wages owed upon separation; (7) failure to furnish timely and accurate wage statements; (8) failure to pay all wages owed every pay period; (9) failure to fully reimburse business expenses; and (10) engaging in unlawful, unfair, and deceptive business practices in violation of the Cal. Business & Professions Code § 17200, et seq. (“Section 17200”).
Derivative Claims: All claims arising out of, derived from, or related to the Claims and allegations in the Complaint, whether known or unknown, at law or in equity, which Settlement Class Members may now have or may have as of the execution of the Joint Stipulation of Settlement and Release of Class Action (“Joint Stipulation”) under Section 17200, the California Labor Code, the wage orders of the California Industrial Welfare Commission, or other federal, state, or local law. The derivative claims include, but are not limited to, claims for failing to promptly pay all wages due and owing at the time of an employee’s termination in violation of Cal. Labor Code § 203; engaging in unlawful/unfair/fraudulent business practices in violation of Section 17200; failing to provide accurate itemized wage statements in violation of Cal. Labor Code § 226; any and all penalties pursuant to the Private Attorney General Act of 2004 (“PAGA”), and any penalties, liquidated damages, interest, attorneys’ fees, or litigation costs allegedly due and owing by virtue of the foregoing.
Rights Under Cal. Civil Code § 1524: With respect to the Released Claims only, each Class Member who does not request exclusion from the Settlement also expressly waives the provisions, rights, and benefits they may otherwise have had pursuant to Section 1542 of the California Civil Code, which provides as follows:
“A general release does not extend to claims which the creditor [i.e., a Class Member] 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 [i.e., the Pacer Releasees].”Top
In order to participate in the Settlement and receive a cash payment, you do not have to do anything. As long as you do not exclude yourself from the Settlement, you will receive a cash payment following final approval of the Settlement.Top
If you do not want to be part of the Settlement, you must submit a signed written request asking to be excluded from the Settlement (“Opt-Out Request”) to the Settlement Administrator.
Mendoza v. Pacer Cartage Settlement Administrator
P.O. Box 40007
College Station, TX 77842-4007
Your Opt-Out Request must include: (1) your full name, (2) your current address, and (3) a statement that you wish to be excluded from the Settlement. To be valid, your Opt-Out Request must be postmarked on or before June 13, 2016. If you do not timely submit an Opt-Out Request (as evidenced by the postmark), your Opt-Out Request will be rejected, you will be deemed a member of the Settlement Class, and you will be bound by the release of Released Claims as described in FAQ 9 and all other Settlement terms.
If the Opt-Out Request is sent from within the United States, it must be sent through the United States Postal Service by First-Class U.S. Mail. If you timely submit an Opt-Out Request, you will have no further role in the Action, and for all purposes, you will be regarded as if you never were a Class Member. You will not be entitled to any benefit as a result of this Action and will not be entitled to or permitted to assert an objection to the Settlement.Top
No. You will not get a payment if you exclude yourself from the settlement.Top
If you send an Opt-Out Request to the Settlement Administrator by mistake or change your mind, you can still participate in the Settlement if you submit a Rescission of Opt-Out Request. Your Rescission of Opt-Out Request must include: (1) your full name, (2) your current address, and (3) a statement that you wish to rescind your request for exclusion from the Settlement. To be valid, your Rescission of Opt-Out Request must be postmarked on or before June 13, 2016.Top
The attorneys for the Class Representative in the Action (“Class Counsel”) are: Brian S. Kabateck (firstname.lastname@example.org), Joshua H. Haffner (email@example.com), and Tsolik Kazandjian, (firstname.lastname@example.org), Kabateck Brown Kellner LLP, 644 South Figueroa Street Los Angeles, California 90017; Tel: (213) 217-5000; Fax: (213) 217-5010
The attorneys for Pacer are: James H. Hanson, Angela S. Cash, and Ryan W. Wright, Scopelitis, Garvin, Light, Hanson & Feary, LLP, 10 W. Market Street, Suite 1500, Indianapolis, IN 46204, (317) 637-1777: Fax: (317) 687-2414: and Christopher C. McNatt, Scopelitis, Garvin, Light, Hanson & Feary, LLP, 2 North Lake Avenue, Suite 460, Pasadena, CA 9110, (626) 795-4700; Fax: (626) 795-4790.Top
Class Counsel will ask the Court to award attorney fees and litigation expenses up to $1,275,000 (30% of the Gross Settlement Amount). The Class Representative will also be entitled to receive his portion of the Net Settlement Amount. The cost of administrating the Settlement will be paid out of the Gross Settlement Amount.Top
If you believe the Settlement is unfair or inadequate in any respect, you may object to the Settlement, either personally or through an attorney (at your own expense), by filing a written objection with the U.S. District Court, Southern District of California, and serving a copy of your written objection to Class Counsel, Counsel for Pacer, and the Settlement Administrator at their respective addresses listed above. YOU CANNOT OBJECT TO THE SETTLEMENT IF YOU REQUEST EXCLUSION FROM THE SETTLEMENT.
All objections must be signed and set forth your name, address, telephone number, and the name and number of the Action. All objections must be filed with the Court no later than June 7, 2016, and served on Class Counsel, Counsel for Pacer, and the Settlement Administrator, no later than June 7, 2016 if by mail or by June 7, 2016 if personally served. If you submit a timely objection, you may appear, either personally or through an attorney (at your own expense), at the Final Approval Hearing discussed below. Your objection must clearly state (1) the reasons why you believe the Court should find that the Settlement is not in the best interest of the Settlement Class, (2) the reasons why the Settlement should not be approved, and (3) whether you or someone on your behalf intends to appear at the Final Approval Hearing.
Any Class Member who does not object in the manner described above shall be deemed to have waived any objections and shall forever be foreclosed from objecting to the fairness or adequacy of the Settlement, the payment of attorneys fees, litigation expenses, the service payments to the Class Representative, the claims process, and any and all other aspects of the Settlement. EVEN IF YOU FILE AN OBJECTION, AS LONG AS YOU DO NOT EXCLUDE YOURSELF FROM THE SETTLEMENT, YOU WILL RECEIVE A CASH PAYMENT IF THE COURT OVERRULES YOUR OBJECTION AND GIVES FINAL APPROVAL TO THE SETTLEMENT.Top
Objecting is simply telling the Court that you don’t like something about the settlement. You can object only if you do not exclude yourself. Excluding yourself is telling the Court that you don’t want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the case no longer affects you.Top
The Court will hold a Final Approval Hearing on the fairness and adequacy of the Settlement, the Plan of Distribution, Class Counsel’s request for attorney fees and expenses, the settlement administration costs, and the incentive award payments to the Class Representative on June 27, 2016 at 12:00 p.m. in Courtroom 14A of the United States District Court, Southern District of California, 333 West Broadway, San Diego, CA 92101. The Final Approval Hearing may be continued without further notice to Class Members. You are not required to attend the Final Approval Hearing.Top
No. Class Counsel will answer any questions the Court may have. But, you are welcome to come at your own expense.Top
You may review the Court’s files, including the detailed Joint Stipulation, which will be on file with the Clerk of the Court located at Courtroom 14A, 333 West Broadway, San Diego, CA 92101. You can also review the Joint Stipulation on the Case Documents page of this website.Top
If your address changes or is different from the one confirmed or provided on the preprinted cover letter that accompanied your Notice, you must notify the Settlement Administrator in writing, by First-Class U.S. Mail. Neither the Settlement Administrator nor Class Counsel has a duty under the terms of the Settlement to conduct any research to locate a new address.
Mendoza v. Pacer Cartage Settlement Administrator
P.O. Box 40007
College Station, TX 77842-4007Top