PROPOSED SETTLEMENT OF CLASS ACTION LAWSUIT AND FAIRNESS HEARING
If you worked as a Sales Associate for Etro U.S.A., Inc. (“Etro”) in New York at any time between August 16, 2007 and August 18, 2014, you are a Class Member and could get a payment from a class action settlement.
Padilla v. Etro U.S.A., Inc., No. 13 Civ. 5796 (LAP)
A Federal court authorized this notice. This is not a solicitation from a lawyer.
Based on Etro’s records, you may be a Class Member who is entitled to participate in a $275,000.00 settlement of the above-captioned case.
The settlement resolves a lawsuit over whether Etro failed to pay Class Members overtime premiums for all hours worked in excess of forty hours in a given workweek.
Your legal rights are affected whether you act or don’t act. Please read this carefully.
Your Legal Rights And Options in this Lawsuit
As described more fully in Section 9 below, if you do nothing, you will receive a settlement check. You will also be bound by the release of legal claims described in Section 11 (even if you do not sign, endorse, deposit, cash or negotiate the settlement check).
You may exclude yourself by mailing the Opt-Out Statement to the Settlement Administrator. To be effective, this Opt-Out Statement must be postmarked by no later than October 27, 2014. This process is described more fully in Section 11 below.
This is the only option that allows you to ever be part of any other lawsuit against Etro about the legal claims that are released in this settlement.
Click HERE to download the Opt-Out Form.
Write to the Court about why you don’t agree with the settlement.
|Go To A Hearing||
Ask to speak in Court about the fairness of the settlement.
Your rights and options – and the deadlines to exercise them – are explained in the Notice (Click HERE to download a copy). This notice further explains the nature of the lawsuit and the terms of the settlement.
The Court in charge of this case still has to decide whether to grant final approval to the settlement. Payments will be made if the Court approves the settlement and after any appeals are resolved. Please be patient.
Any questions or need assistance excluding yourself or objecting? Please contact the Settlement Administrator at [email protected].
|1. What is this lawsuit about?|
Plaintiff claims that Etro failed to pay its Sales Associates overtime premiums for all hours worked in excess of forty (40) hours in a given workweek in violation of the Fair Labor Standards Act (“FLSA”) and New York State Labor Law (“NYLL”).
Etro has denied and continues to deny any liability or wrongdoing, and denies any and all liability and damages to anyone with respect to the alleged facts or causes of action asserted in the Lawsuit.
|2. What is a class action?|
In a class action lawsuit, one or more people called “Class Representatives,” (in this case Galina Padilla) sues on behalf of other people who the Class Representative contends have similar claims. The people together are a “Class” or “Class Members.” One Court resolves issues for all Class Members, except for those who exclude themselves from the Class.
|3. Why is there a settlement?|
The Court has not made any decisions on the merits of this case in favor of Plaintiff or Defendant. The Plaintiff thinks she could have won if she went to trial. The Defendants think the Plaintiff would not have won at trial. But there was no trial. Instead, both sides agreed to a settlement. That way, they avoid the cost and uncertainty of continued litigation and a trial. The parties think the settlement is in the best interests of all parties and the Class Members.
Who is in the Settlement
|4. How do I know if I am part of the settlement?|
Judge Preska decided that everyone who fits the following description is a Class Member:
All Sales Associates who are or were employed by Etro U.S.A., Inc. in New York between August 16, 2007 and August 18, 2014.
According to Etro’s records, you are a Class Member. If you do not opt-out of the settlement, you will receive a distribution from this settlement.
|5. Are there exceptions to being included?|
You are not a Class Member if you did not work for Etro as a Sales Associate in New York at any time from August 16, 2007 and August 18, 2014.
|6. I’m still not sure if I am included?|
If you are still not sure whether you are included, you can call Class Counsel (212) 385-9700 for more information.
The Settlement Benefits – What You Get
|7. What does the settlement provide?|
The complete terms and conditions of the proposed settlement are on file with the Clerk of Court at the address listed below in Section 19.
You may download a copy of the Settlement Agreement by clicking HERE.
In the settlement agreement, Etro has agreed to provide a gross settlement payment of $275,000.00, which covers payments to Class Members, attorneys’ fees and costs, service awards, and administration fees and costs.
|8. How much will my payment be?|
Class Members who do not opt out, as described in Section 12, will be eligible to receive a specified share of the $275,000 settlement fund based on a formula approved by the Court.
The $275,000 will be adjusted as follows prior to distribution of the payments to Class Members:
Settlement Administration Fees: A reserve will be set aside for reasonable costs associated with administering the settlement. The reserve will be used to pay a claims administration company for mailings, processing claims, providing information and assistance to Class Members, and preparing information reported to the Court.
Attorneys’ Fees and Costs: Class Counsel will seek, and Defendants will not oppose, an award covering fees not to exceed 33.33% of the $275,000 settlement fund described above, plus reasonable costs and out-of-pocket expenses. All fee awards, costs and expenses paid to Class Counsel will be paid from the settlement fund.
Service Awards: If the Court approves such payments, certain individuals will receive payments because they provided service to the Class by helping Class Counsel to formulate claims. Specifically, the Plaintiff and the sole opt-in Plaintiff will seek $6,500 each. The payments outlined in this paragraph are separate from and in addition to the share of the settlement fund that Plaintiff and the opt-in Plaintiff may otherwise be eligible to receive.
The remaining amount in the settlement fund (the “Net Settlement Amount”) will then be distributed among Class Members.
Your share will be determined by multiplying the Net Settlement Amount by a fraction. The numerator of the fraction is the number of workweeks you worked as a Sales Associate during the period from August 16, 2007 through August 18, 2014 multiplied by your last hourly pay rate as a Sales Associate. The denominator of the fraction is the total of all participating Class Member’s numerators.
How You Get A Payment
|9. How can I get a payment?|
If you have received this Notice and you do not opt-out, you will automatically receive a settlement check with a settlement payment from the settlement administrator so long as the Court grants final approval of the settlement and any appeals are resolved in favor of the settlement.
By signing, negotiating, depositing, endorsing and/or cashing your settlement check, you affirm your agreement with the following statement:
“By signing, endorsing, depositing, cashing and/or negotiating this check, I hereby consent to join as a party the collective action under Case No. 13-cv-5796 (S.D.N.Y.) pursuant to Section 16(b) of the FLSA, 29 U.S.C. § 216(b). I further understand and agree to the release of claims set forth in Section 11 of the Notice I was provided.”
You should keep in mind that even if you don’t sign, negotiate, deposit, endorse or cash your settlement check, you will still be bound by the release described in Section 11 of this Notice if you do not opt out.
|10. When would I get my payment?|
The Court will hold a hearing on December 9, 2014, to decide whether to approve the settlement. If Judge Preska grants final approval to the settlement after that, there may be appeals. It’s always uncertain whether these appeals can be resolved, and resolving them can take time. Please be patient. You will receive your payment after the court grants final approval of the settlement and any appeal/reconsideration process is complete.
|11. What am I giving up to get a payment or stay in the Class?|
If the Court grants final approval of the settlement, in exchange for the $275,000 settlement described above, this lawsuit will be dismissed with prejudice and Class Members who do not opt out will fully release and discharge Etro (the Defendant) from certain claims. When claims are “released,” that means that you can’t sue, continue to sue, or be part of any other lawsuit against Etro for any of the claims covered by the release.
The terms of the release in the settlement agreement read:
“By operation of the entry of the Judgment and Final Approval Order, and except as to such rights or claims as may be created by this Agreement, the Named Plaintiff, Additional Plaintiff and each Class Member who does not timely opt out pursuant to Section 2.5, forever and fully release Defendant, its owners, stockholders, predecessors, successors, assigns, agents, directors, officers, employees, representatives, attorneys, parent companies, divisions, subsidiaries, affiliates, benefit plans, plan fiduciaries and/or administrators, and all persons acting by, through, under or in concert with any of them, including any party that was or could have been named as a defendant in the Litigation (collectively, the “Released Parties”) from any and all past and present matters, claims, demands, causes of action, and appeals of any kind, whatsoever, whether at common law, pursuant to statute, ordinance, or regulation, in equity or otherwise, which any such individual has or might have, known or unknown, asserted or unasserted, of any kind whatsoever, that are based upon federal, state or local laws governing overtime pay, wage requirements, failure to pay for all hours worked, or that otherwise arise out of or relate to the facts, acts, transactions, occurrences, events or omissions alleged in or underlying the Litigation, and that arose during any time that such individual was employed by Defendant as a Sales Associate up until the date of the entry of the Final Approval Order (“Released Claims”). The Released Claims include without limitation claims that were or could have been asserted in the Litigation, including but not limited to any claims based on state, federal or local law governing overtime pay, payment of wages, hours worked, denial of meal periods and rest breaks, denial of spread of hours pay, failure to pay call-in pay, failure to pay wages upon termination, failure to provide itemized wage statements or wage notices, improper calculation of overtime pay, failure to provide benefits or benefit credits, failure to keep records of hours worked or compensation due, and penalties for any of the foregoing, including without limitation claims under the Fair Labor Standards Act (“FLSA”), the New York Minimum Wage Act, New York Labor Law §§ 650 et seq., New York Wage Payment Act, New York Labor Law §§ 190 et seq., the New York State Department of Labor Regulations, 12 N.Y.C.R.R. part 142, and all other statutes and regulations relating to the foregoing.”
Excluding Yourself From the Settlement
If you don’t want to participate in and receive a payment from this settlement, and want to keep the right to sue or continue to sue Etro on your own about the legal claims that are released as part of this settlement, then you must take steps to get out. This is called excluding yourself – or is sometimes referred to as opting out of the settlement Class.
|12. How do I get out of the settlement?|
To exclude yourself from the settlement, you must sign and mail the Opt-Out Form (HERE) to the Settlement Administrator at Etro Settlement, c/o American Legal Claim Services, LLC, P.O. Box 23650, Jacksonville, FL 32241. The written opt-out statement must be postmarked no later than October 27, 2014.
If you ask to be excluded, you will not be barred from any legal claims against Etro and can pursue a claim against Etro, but you will not get any settlement payment, and you cannot object to the settlement.
|13. If I don’t exclude myself, can I sue Etro for the same thing later?|
No. Unless you exclude yourself, you give up any right to sue Etro for the claims this settlement resolves (as described in Section 11). If you have a pending lawsuit, speak to your lawyer in that case immediately as you may need to exclude yourself from this Class to continue your lawsuit. Remember, the exclusion deadline is October 27, 2014.
|14. If I exclude myself, can I get money from this settlement?|
No. If you exclude yourself, you will not receive any proceeds from the settlement. But, you may sue, continue to sue, or be part of a different lawsuit against Etro.
The Lawyers Representing You
|15. Do I have a lawyer in this case?|
The Court has decided that the law firm of Pelton & Associates PC, 111 Broadway, Suite 1503, New York, NY 10006, (212) 385-9700, is qualified to represent you and all Class Members. These lawyers are called Class Counsel. You will not be individually charged money for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.
|16. How will the lawyers be paid?|
Class Counsel will ask the Court to approve payment of up to one-third (33.33%) of the settlement amount to them for attorneys’ fees, plus reimbursement of litigation and settlement administration costs. The fees would pay Class Counsel for investigating the facts, litigating the case, and negotiating the settlement. The Court may award less than these amounts. Class Counsel’s fees and expenses will be deducted from the gross settlement amount before distributions to individual Class Members are calculated.
Objecting to the Settlement
You can tell the Court you don’t agree with the settlement or some part of it.
|17. How do I tell the Court that I don’t like the settlement?|
If you’re a Class Member, you can object to the settlement if you don’t like any part of it. You can give reasons why you think the Court should not approve it. The Court will consider your views.
To object, you must send a written statement including your name, address, and telephone number(s) to Etro Settlement Objections, c/o American Legal Claim Services, LLC, P.O. Box 23650, Jacksonville, FL 32241, including all reasons for the objection. The written objection statement must be postmarked no later than October 27, 2014. Any reasons not included in the statement will not be considered by the Court. If you wish to present your objection at the Fairness Hearing, you must state your intention to do so in the written statement. You do not need a lawyer to object, but you may hire a lawyer to assist with your objection or to represent you at the Fairness Hearing.
|18. What’s the difference between objecting and excluding?|
Objecting is simply telling the Court that you don’t like something about the settlement. You can object if you stay in the Class. Excluding yourself 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.
The Court’s Fairness Hearing
The Court will hold a hearing to decide whether to approve the settlement. You may attend and you may ask to speak, but you don’t have to.
|19. When and where will the Court decide whether to approve the settlement?|
The Court has granted preliminary approval to the settlement, concluding preliminarily that the settlement is fair, adequate, and reasonable and that the proposed distribution of the settlement amount is fair, adequate and reasonable.
The Court will hold a Fairness Hearing at 9:30 A.M. on December 9, 2014, at the United States District Court for the Southern District of New York, 500 Pearl Street, New York, New York 10007. At this hearing the Court will consider whether final approval of the settlement will be granted. If there are objections, the Court will consider them. Judge Preska will listen to people who have asked to speak at the hearing. The Court may also decide how much to pay to Class Counsel and what service awards are appropriate. The time and date of this hearing may be continued or adjourned, so please contact Class Counsel prior to the date of the hearing if you plan to attend.
After the hearing, the Court will decide whether to grant final approval to the settlement. We do not know how long that decision will take.
|20. Do I have to come to the hearing?|
No. Class Counsel will answer questions that Judge Preska may have. But, you are welcome to come at your own expense. If you send an objection, you don’t have to come to Court to talk about it, but you may attend if you would like and you may present your objection if you stated your intention to do so in your written objection. You may also pay your own lawyer to attend, but it’s not necessary.
|21. May I speak at the hearing?|
You may ask the Court for permission to speak at the Fairness Hearing, although you cannot speak at the hearing if you excluded yourself.
If You Do Nothing
|22. What happens if I do nothing at all?|
So long as the Court grants final approval of the settlement, and you do not opt out, you will automatically receive a settlement payment. Please ensure that you provide Class Counsel with updated address information if you move so that you receive your check.
Getting More Information
23. What happens if I do all?
|23. Are more details available?|
This is a summary of the proposed settlement to Class Members. More details are available in the Settlement Agreement (HERE) or visiting the Important Documents section of this website. You may also email the Settlement Administrator at [email protected] for more information about the settlement.