Ashley Caballero, America Caballero, and Luis Venegas vs. Fidelitone Last Mile, Inc. CALIFORNIA SUPERIOR COURT, COUNTY OF SAN BERNARDINO
Ashley Caballero, America Caballero, and Luis Venegas, Plaintiffs, vs. Fidelitone Last Mile, Inc., Defendant
Case No. CIVSB2102002
NOTICE OF CLASS ACTION SETTLEMENT
A court authorized this notice. This is not a solicitation. This is not a lawsuit against you and you are not being sued. However, your legal rights are affected by whether you act or don’t act.
YOU MAY BE ENTITLED TO MONEY UNDER THE PROPOSED CLASS ACTION SETTLEMENT. PLEASE READ THIS NOTICE CAREFULLY; IT INFORMS YOU ABOUT YOUR LEGAL RIGHTS.
The California Superior Court, County of San Bernardino has granted preliminary approval to a proposed settlement (“Settlement”) of Ashley Caballero, America Caballero, and Luis Venegas vs. Fidelitone Last Mile, Inc. Because your rights may be affected by this Settlement, it is important that you read this Notice of Class Action Settlement (“Notice”) carefully.
The Court has certified the following class for settlement purposes (collectively these individuals are referred to as the “Class” or “Class Members”):
All individuals who worked for Fidelitone as Contract Carriers, Drivers and/or Helpers in the State of California (but excluding acknowledged employees of Fidelitone) from July 31, 2016, through November 6, 2021, and all entities owned and controlled by Contract Carriers which contracted directly with Fidelitone to perform freight delivery services during the from July 31, 2016, through November 6, 2021.
The purpose of this Notice is to provide a brief description of the claims alleged in the Class Action, the key terms of the Settlement, and your rights.
1. Why Have I Received This Notice?
Defendant’s records indicate that you may be a Class Member. The Settlement will resolve all Class Members’ Released Class Claims, as described below, during the Claims Period.
A Preliminary Approval Hearing was held on February 10, 2022, in the California Superior Court, County of San Bernardino. The Court conditionally certified the Classes for settlement purposes only and directed that you receive this Notice.
The Court will hold a Final Approval Hearing concerning the proposed settlement on June 28, 2022 at 10:00 a.m., located at 247 W 3rd Street, San Bernardino, CA 92415. The Final Approval Hearing may be continued without further notice to the Class Members. You are advised to check the Court’s website (instructions on accessing this site are provided in Section 12 of this Notice) to confirm that the date has not been changed.
2. What Is This Case About?
The Class Action was filed by Plaintiffs Ashley Caballero, America Caballero, and Luis Venegas. The complaint alleged causes of action on behalf of Plaintiffs and those similarly situated for (1) Failure to Pay Minimum Wages; (2) Failure to Pay Overtime; (3) Failure to Reimburse Business Expenses; (4) Unlawful Deductions from Wages; (5) Failure to Provide Meal Periods; (6) Failure to Authorize and Permit Rest Periods; (7) Failure to Furnish Accurate Wage Statements; (8) Waiting Time Penalties; (9) Violation of Unfair Competition Law; and (10) Violations of the Private Attorneys General Act, Labor Code §2699, et seq. (“PAGA”).
The Court has not made any determination as to whether the claims advanced by Plaintiffs have any merit. In other words, the Court has not determined whether any laws have been violated, nor has it decided in favor of Plaintiffs or Defendant; instead, both sides agreed to resolve the lawsuit with no decision or admission of who is right or wrong. By agreeing to resolve the lawsuit, all parties avoid the risks and cost of a trial. Defendant expressly denies that it did anything wrong or that it violated the law and further denies any liability whatsoever to Plaintiffs or to the Class.
3. Am I A Class Member? Am I An Aggrieved Employee?
You are a Class Member if you worked for Defendant in the State of California as a Contract Carrier, Driver and/or Helper (but not an acknowledged employee of Defendant) from July 31, 2016, through November 6, 2021, or were/are an entity owned and controlled by Contract Carriers which contracted directly with Defendant to perform freight delivery services during the from July 31, 2016, through November 6, 2021.
If you worked for Defendant in the State of California as a Contract Carrier, Driver and/or Helper (but not an acknowledged employee of Defendant) from April 28, 2019, through November 6, 2021, or were/are an entity owned and controlled by Contract Carriers which contracted directly with Defendant to perform freight delivery services during the from April 28, 2019, through November 6, 2021, you are also an “Aggrieved Employee” under the settlement.
4. How Does This Class Action Settlement Work?
In this Action, Plaintiffs sued on behalf of themselves and all other similarly situated individuals as defined in Section 3 above. Plaintiffs and these individuals comprise a “Class” and are “Class Members.” The settlement of this Action resolves the Released Class Claims of all Class Members, except for those who exclude themselves from the Class by requesting to be excluded in the manner set forth below.
Plaintiffs and Class Counsel believe the Settlement is fair and reasonable. The Court must also review the terms of the Settlement and determine if it is fair and reasonable to the Class. The Court file has the Settlement documents, which explain the Settlement in greater detail. If you would like copies of the Settlement documents, you can contact Class Counsel, whose contact information is below, and they will provide you with a copy free of charge.
5. Who Are the Attorneys Representing the Parties?
The Court has decided that David Mara and Matthew Crawford of Mara Law Firm, PC, Michael H. Boyamian of Boyamian Law, Inc., and Armand R. Kizirian of Kizirian Law Firm, P.C. are qualified as Class Counsel to represent you and all other Class Members simultaneously.
Class Counsel / Attorneys for Plaintiffs | Attorneys for Defendant |
MARA LAW FIRM, PC
BOYAMIAN LAW, INC. KIZIRIAN LAW FIRM, P.C. | NIXON PEABODY LLP
|
You do not need to hire your own attorney because Class Counsel is working on your behalf. But, if you want your own attorney, you may hire one at your own cost.
6. What Are My Options?
The purpose of this Notice is to inform you of the proposed Settlement and of your options. Each option has its consequences, which you should understand before making your decision. Your rights regarding each option, and the steps you must take to select each option, are summarized below and explained in more detail in this Notice.
Important Note: Defendant will not retaliate against you in any way for either participating or not participating in this Settlement. The purpose of this Notice is to inform you of the proposed Settlement and of your options. Each option has its consequences, which you should understand before making your decision. Your rights regarding each option, and the steps you must take to select each option, are summarized below and explained in more detail in this Notice.
The procedures for submitting the IRS W-9 Form, opting out and objecting are set forth below in the sections entitled “How Do I Submit My Taxpayer Identification Number to Receive a Settlement Payment?,” “How Do I Opt Out or Exclude Myself From This Settlement?,” and “How Do I Object To The Settlement?”
7. How Do I Submit My Taxpayer Identification Number to Receive a Settlement Payment?
The Settlement Administrator does not have your Taxpayer Identification Number (“TIN”) on file. In most circumstances, this number is your Social Security Number. This information is required to issue you a Settlement payment, for income tax reporting purposes. You must submit to the Settlement Administrator the IRS W-9 Form included in your Notice Packet or click here to complete the form to submit your SSN or TIN in order to receive your Settlement payment. If you have questions about how to fill out the IRS W-9 Form or how to submit your TIN online, please call the Settlement Administrator at (800) 523-5773.
Fill in the requested information enclosed in the IRS W-9 Form, sign and mail/fax it to the Settlement Administrator:
Fidelitone Settlement Administrator
c/o Phoenix Settlement Administrators
P.O. Box 7208
Orange, CA 92863
Fax: (949) 209-2503
If you do not submit the enclosed IRS 1-9 Form or submit your TIN online and the Settlement Administrator does not have a TIN on file for you, the Settlement Administrator will not mail you a Settlement check. Your Settlement payment will become forfeit and will be deposited with the cy pres beneficiary, Legal Aid at Work.
8. How Do I Opt Out Or Exclude Myself From This Settlement?
To opt-out of the Settlement, a Class Member must provide the Settlement Administrator at Phoenix Settlement Administrators, P.O. Box 7208, Orange, CA 92863 with a Timely Written Request To Opt Out (i.e., it must be postmarked no later than 45 days after the First Mailing Date or April 28, 2022). In order to be valid, a Timely Written Request to Opt Out must state the Class Member name, contain the last four digits of his/her social security number, be dated and signed by the Class Member and be timely received by the Settlement Administrator. All Class Members shall be bound by all of the terms of the Settlement Agreement and Judgment unless a Timely Written Request to Opt Out is received by the Settlement Administrator.
The proposed settlement includes the settlement of claims for civil penalties under the PAGA. You may not request to be excluded from the settlement of a PAGA claim. Thus, if the court approves of the settlement, even if you request exclusion from the settlement, if you worked during the PAGA Period of April 28, 2019, through November 6, 2021, you will receive a portion of the PAGA Fund and will be deemed to have released the PAGA Released Claims. A request for exclusion will preserve your right to individually pursue only the remaining class claims.
9. How Do I Object To The Settlement?
If you are a Class Member who does not opt out of the Settlement, you may object to the Settlement, personally or through an attorney, by submitting a written Objection to the Settlement Administrator at Phoenix Settlement Administrators, P.O. Box 7208, Orange, CA 92863. All objections to the Settlement must be submitted to the Settlement Administrator no later than 45 days after the Settlement Administrator’s First Mailing Date of the Class Notice, or April 28, 2022. The objection will not be valid if it objects only to the appropriateness of the action or its merits.
Class Members who timely file valid objections to the Settlement may (though are not required to) appear at the Final Approval Hearing, either in person or through the objector’s own counsel. If the Court rejects the Objection, the Class Member will receive a Settlement payment and will be bound by the terms of the Settlement.
10. How Does This Settlement Affect My Rights? What are the Released Claims?
If the proposed settlement is approved by the Court, a Final Judgment will be entered by the Court. All Class Members who do not opt out of the Settlement will be bound by the Court’s Final Judgment and will release Defendants and the Released Parties[1] from the Released Class Claims. The Released Class Claims are:
Any and all claims for: unpaid minimum wages; unpaid overtime wages; unlawful deductions from wages; failure to reimburse work-related expenses; failure to provide meal periods or pay premium wages in lieu thereof; failure to authorize and permit rest periods or pay premium wages in lieu thereof; failure to furnish accurate itemized wage statements; failure to pay all final wages due upon termination; and unfair, unlawful or fraudulent business acts or practices; conversion; common count; fraud; breach of contract; unjust enrichment; as well as any and all remedies available at law or equity on any of the foregoing claims, including without limitation, compensatory damages, wages, penalties, liquidated damages, interest, costs, attorneys’ fees, restitution, punitive damages, declaratory relief, and injunctive relief, but only to the extent that such causes of action or claims for relief were asserted or reasonably could have been asserted by Plaintiffs or Class Members in the Action and/or Related Cases based upon any of the conduct alleged therein which arose out of their work for Fidelitone in the State of California during the Claims Period.
If you are an Aggrieved Employee, you will be bound by the Final Judgment and will release the Released Parties from the Released PAGA Claims, even if you opt-out of the settlement. The Released PAGA Claims are:
Any and all claims for: unpaid minimum wages; unpaid overtime wages; unlawful deductions from wages; failure to reimburse work-related expenses; failure to provide meal periods or pay premium wages in lieu thereof; failure to authorize and permit rest periods or pay premium wages in lieu thereof; failure to furnish accurate itemized wage statements; failure to pay all final wages due upon termination; and unfair, unlawful or fraudulent business acts or practices; conversion; common count; fraud; breach of contract; and unjust enrichment, based upon any of the conduct alleged therein which arose out of their work for Fidelitone in the State of California during the PAGA Period.
11. How Much Can I Expect to Receive From This Settlement?
The total maximum amount that Defendant could be required to pay under this Agreement shall be up to but no more than $1,000,000 (“Gross Settlement Fund” or “GSF”).
The “Net Settlement Amount” or “NSA” means the portion of the Gross Settlement Fund, available for distribution to Class Members after the deduction of (1) the Class Representative Enhancement Payments to each named Plaintiff in an amount up to $10,000 each, for prosecution of the Action, risks undertaken for the payment of attorneys’ fees and costs, and a general release of all claims; (2) the Settlement Administration Costs to the Settlement Administrator in an amount estimated not to exceed $20,000; (3) a payment of $50,000 allocated to the PAGA claims; and (4) payment to Class Counsel in an amount not to exceed $333,300 (33 1/3% of the Gross Settlement Amount) for attorneys’ fees and an amount not to exceed $30,000 for litigation costs. All of these payments are subject to court approval.
The PAGA Settlement Mount means the portion of the Gross Settlement Fund which is allocated to the compromise and release of Plaintiffs’ claims in the Action and Related Cases for PAGA Penalties, i.e., Fifty Thousand Dollars ($50,000). Of this $50,000, 75%, or $37,500, will be paid to the Labor and Workforce Development Agency (“LWDA”) (the “LWDA Payment”), and the remaining 25%, or $12,500, will be distributed to the Aggrieved Employees (the “Aggrieved Employee Payment”).
A. How Will Settlement Payments Be Calculated?
The NSA and Aggrieved Employee Payment shall be divided, for distribution to Settlement Class Members and Aggrieved Employees, into two parts as follows: (a) 55% to those Settlement Class Members and Aggrieved Employees who worked for Fidelitone during the Claims Period and/or PAGA Period as Contract Carriers; and (b) 45% to those Settlement Class Members and Aggrieved Employees who worked for Fidelitone during the Claims Period and/or PAGA Period as Drivers and/or Helpers. Each of the aforementioned portions of the Net and PAGA Settlement Amounts shall be allocated and paid to Settlement Class Members and Aggrieved Employees in accordance with formulas specified below.
Individual Settlement Shares to Class Members: After deducting the above-referenced items, the remaining Net Settlement Amount, will be proportionally distributed to the Class Members. The Settlement Administrator will calculate the amount of the Individual Settlement Share due to each Settlement Class Member based on the Workweeks of Settlement Class Member during the Claims Period, as reflected in Fidelitone’s records. Specifically, each Settlement Class Member’s Settlement Award will be calculated by multiplying the fraction x/y by the total of the applicable portion of Net Settlement Amount (i.e., 55% for Contract Carriers or 45% for Drivers/Helpers, as applicable), where “x” equals the total number of Workweeks for each Settlement Class Member, and “y” equals the total number of Workweeks in which all Settlement Class Members worked for Fidelitone.
PAGA Settlement Shares to Aggrieved Employees: The Aggrieved Employee Payment will be proportionally distributed to the Aggrieved Employees. The Settlement Administrator will calculate the amount of the PAGA Settlement Share due to each Aggrieved Employee based on the Workweeks of Aggrieved Employee during the PAGA Period, as reflected in Fidelitone’s records. Specifically, each Aggrieved Employee’s Settlement Award will be calculated by multiplying the fraction x/y by the total of the applicable portion of Aggrieved Employee Payment (i.e., 55% for Contract Carriers or 45% for Drivers/Helpers, as applicable), where “x” equals the total number of Workweeks for each Aggrieved Employee, and “y” equals the total number of Workweeks in which all Aggrieved Employees worked for Fidelitone.
One day worked in a given week will be credited as a week for purposes of these calculations. Therefore, the value of each Class Member’s and/or Aggrieved Employee’s Settlement payment ties directly to the amount of weeks that he or she worked.
B. How Will My Settlement Payment Be Taxed?
Each Settlement Class Member’s Individual Settlement Share will be apportioned as follows: 40% wages, 30% interest, and 30% penalties. The amounts paid as wages shall be subject to all tax withholdings customarily made from an employee’s wages and all other authorized and required withholdings and shall be reported on IRS W-2 Forms issued by the Settlement Administrator on behalf of the qualified settlement fund. Fidelitone shall pay the employer portion of all such tax withholdings on the Individual Settlement Share amounts paid as wages separate from, and in addition to, the Gross Settlement Fund. Payments of all amounts will be made subject to backup withholding unless a duly executed W-9 form is received from the payee(s). The Individual Settlement Share amounts paid as penalties and interest shall be subject to all authorized and required withholdings other than the tax withholdings customarily made from employees’ wages and shall be reported on IRS 1099 Forms issued by the Settlement Administrator on behalf of the qualified settlement fund. Only the employee share of payroll tax withholdings shall be withheld from each Settlement Class Member’s Individual Settlement Share.
Each Aggrieved Employee’s PAGA Settlement Share will be apportioned as follows: 100% penalties. The PAGA Settlement Share amounts shall be reported on IRS 1099 Forms issued by the Settlement Administrator on behalf of the qualified settlement fund.
C. What Is My Settlement Payment?
Although your exact share of the Net Settlement Amount as a Class Member cannot be precisely calculated until after the time during which individuals may object or seek exclusion from the Settlement concludes, based upon the calculation above, your approximate share of the Net Settlement Amount, as well as the workweeks you worked during the Claims Period, is included in the Notice Packet that was mailed to you.
If you are also an Aggrieved Employee, you will receive a share of the Aggrieved Employee Payment. Based upon the calculation above, your approximate share of the Aggrieved Employee Payment, as well as the workweeks you worked during the PAGA Period, is included in the Notice Packet that was mailed to you.
D. What Happens If I Don’t Submit the Enclosed IRS W-9 Form?
It is strongly encouraged that you submit the enclosed IRS W-9 Form. If you do not submit this form within 120 calendar days after the settlement checks are mailed to Participating Class Members, your settlement check will be deposited with Legal Aid at Work. If you have any questions about this, please contact the Settlement Administrator.
12. How Do I Get More Information About the Case or the Settlement?
IF YOU NEED MORE INFORMATION OR HAVE ANY QUESTIONS, you may contact Class Counsel listed above, or the Settlement Administrator at the telephone number listed below, toll free. Please refer to the Fidelitone Class Action Settlement.
This Notice does not contain all of the terms of the proposed Settlement or all of the details of these proceedings. For more detailed information, you may refer to the underlying documents and papers on file with the Court at 247 W 3rd Street, San Bernardino, CA 92415 or by clicking the Important Documents tab above. You may also contact Class Counsel, whose contact information is above, and they will provide you with a copy of the Settlement documents or case documents free of charge. You can also visit the Court’s website at https://www.sb-court.org/divisions/civil-general-information/court-case-information-and-document-sales. Click the “Accept” button at the bottom of the screen, then click “Click here to access the Portal (Classic).” Click the “Smart Search” button, then enter the case number CIVSB2102002.
PLEASE DO NOT TELEPHONE THE COURT OR COURT’S
CLERK FOR INFORMATION ABOUT THIS SETTLEMENT.
[1] “Released Parties” means Defendant Fidelitone Last Mile, Inc. and its predecessors and successors, as well as all of its current, former and future subsidiaries, affiliates, and parent companies, and each of their respective officers, directors, shareholders, members, partners, insurers, agents, administrators, executors and assigns.