Brooks v. U.S. Bank, N.A.

Filing 62

ORDER by Judge Edward M. Chen Granting 48 Plaintiffs' Motion for Preliminary Approval of Class Action Settlement. (Attachments: # 1 Exhibit Notice, # 2 Exhibit Estimated Payment Form) (emcsec, COURT STAFF) (Filed on 2/12/2014)

U.S. BANK CLASS ACTION
NOTICE OF SETTLEMENT
If you are or were employed by U.S. BANK, N.A. as an In-Store Banker 1, In-Store Banker 2,
Senior In-Store Banker 1, and/or Senior In-Store Banker 2 at In-Store Locations in California at
any time from September 30, 2010 to present, this class action settlement may affect your rights.

The UNITEDSTATES DISTRICTCOURT,NORTHERNDISTRICT OFCALIFORNIA(“Court”) has authorized
this notice in BROOKS, ET AL. v. U.S. BANK, N.A., Case No. C12-4935 EMC (the “Action”).


In August, 2012, a former In-Store Banker 2 sued U.S. Bank, N.A. (“U.S. Bank”). In July, 2013, a First
Amended Complaint was filed, adding an additional former In-Store Banker 2 as a plaintiff. In sum, the
two former employees made the following claims against U.S. Bank on behalf of In-Store Bankers 1,
In-Store Bankers 2, Senior In-Store Bankers 1, and/or Senior In-Store Bankers 2 who worked at an
in-store location in California (“Class Positions”) from September 30, 2010 to [date of preliminary
approval] (“Class Period”): (1) failure to provide legally compliant rest periods, (2) failure to pay all
wages immediately upon termination, and (3) failure to meet the legal standard for providing suitable
seating.



U.S. Bank denies the claims and asserts that it has always provided lawful rest periods, timely paid
wages upon termination, and provided suitable seating to its employees in Class Positions in
compliance with California law.



The parties have reached a settlement. The Court has preliminarily approved a settlement of this case,
in which U.S. Bank has agreed to pay $1,900,000 to resolve the claims asserted in the action and
related claims of employees in Class Positions (“Settlement”). The enclosed Share Form gives an
estimate of the amount you will receive in this Settlement.



The Court certified the case as a class action for settlement purposes on (date). All employees in Class
Positions who worked at any time during the Class Period are included in the class covered by this
settlement (“Class Member”).



You are receiving this notice because U.S. Bank’s records indicate that you are a Class Member.
Read this Notice Carefully, as your legal rights may be affected and you have a choice to make
now.

There will be no retaliation or negative treatment by U.S. Bank against you based on your decision
to accept the money from this Settlement.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT
You may choose to do one of the following three things:
Participate in the Settlement and Collect a
Settlement Award.

You do not need to do anything in order to receive a
settlement award in this case. If the Court grants
final approval, you will receive a settlement check,
and you will have 90 days to cash the settlement
check. In exchange, you will give up your right to

sue for rest period pay, timely payment of wages
upon termination, suitable seating, related penalties,
and related claims released by the Settlement.
The Court will decide whether any objections to the
settlement are valid. If you file an objection and it is
rejected by the Court, you will still participate in the
settlement, collecting your money and giving up your
right to sue for rest period pay, timely payment of
wages upon termination, suitable seating, related
penalties, and related claims released by the
Settlement.
You will receive no money from the class action
settlement in this Action, but will preserve any rights
you would otherwise have to sue U.S. Bank for the
claims made in this Action.

Object to the Settlement

Opt out of the Settlement

I. BACKGROUND OF THE CASE
On August 21, 2012, Plaintiff Cynthia Brooks filed a class action lawsuit against U.S. Bank on behalf of
herself and all other employees in Class Positions. Jacob Swoyer joined as a Plaintiff in the Action in
July 2013. Plaintiffs allege that they and other employees in Class Positions were not provided all legally
required rest periods on those days when only two employees were scheduled to work at in-store position,
were not timely paid wages upon termination, and were not provided with suitable seating during the class
period from September 30, 2010 to (date of preliminary approval order).
U.S. Bank denies any liability or wrongdoing of any kind associated with these claims. The Court has not
decided whether any violations occurred.
After three days of mediation and settlement conferences between the Plaintiffs and U.S. Bank (the
“Parties”), they reached this Settlement. This Settlement has been given preliminary approval by the
Court, and this notice is being sent to all Settlement Class Members – including you – who now have the
opportunity to receive a portion of the $1,900,000 settlement payment.
By agreeing to resolve the lawsuit, all parties avoid the risks and cost of a trial, and Class Members such
as yourself will receive your compensation more quickly than if the matter continued to trial. Plaintiffs
and their attorneys think the settlement is in the best interests of the Settlement Class.
II. SUMMARY OF THE PROPOSED SETTLEMENT

A.

Who is included in the Settlement?

You are included in the Settlement if you were employed by U.S. Bank as an In-Store Banker 1, In-Store
Banker 2, Senior In-Store Banker 1, and/or Senior In-Store Banker 2 at an in-store location in California
at any time during the period September 30, 2010 to (date of preliminary approval order) and do not opt
out as described in this notice. You need not do anything to participate in the Settlement.

B.

How much is my share of the Settlement if it is approved?

U.S. Bank will make a settlement payment (“Settlement Payment”) of $1,900,000, if the Court grants
final approval of the Settlement. As will be described in more detail below, the amount available for
Settlement Class Members from the $1,900,000 is estimated at $1,146,667. The $1,900,000 will be
apportioned as follows:
$633,333
$20,000

(33 1/3% Award for Attorneys’ Fees)
(Estimated Litigation Costs)

$10,000
$90,000
$1,146,667

(Class Representatives’ Service Payments)
(Payment to Labor and Workforce development Agency)
(Estimated “Net Settlement Fund” Payable to Settlement Class)

The Net Settlement Fund may vary depending upon whether, and in what amounts, the Court approves
the attorneys’ fees, litigation cost reimbursements, and service payments.
The entire Net Settlement Fund will be paid to Settlement Class Members based upon the following
formula: The number of weeks worked by each Settlement Class Member in a Class Position at any time
during the Class Period in relation to the number of weeks worked by all members of the Settlement Class
during the Class Period (i.e. a pro-rata portion of the Net Settlement Fund based on time worked by each
Settlement Class Member.) Preliminarily, it is estimated that each participating Settlement Class Member
will be paid approximately $XXX for each week he or she worked in a Class Position during the Class
Period.
Each Settlement Class Member who worked in a Class Position, according to U.S. Bank’s records, will be
sent a payment calculated as described above. The estimated amount that you can expect to receive
pursuant to the proposed terms of the Settlement is stated in the enclosed Share Form. This
estimated amount is subject to change, depending on the final number of Settlement Class Members who
participate in the Settlement among other things. If you cash your check during the first round of check
distribution, you may also be eligible to receive a second additional check that would increase the
recovery you are entitled to. The second round of checks will re-distribute amounts for checks that were
issued but not cashed after the first round of check distribution.
The Settlement Payment to you will be treated as one-third (33 1/3%) for rest period wages and two thirds
(66 2/3%) for interest and penalties. From the portion payable for rest period pay, certain taxes will be
withheld as required by law. You will receive separate IRS Forms for the two portions of the payment. If
you decide to participate in the settlement and collect your share of the fund, you will be responsible for
correctly characterizing these payments for personal tax purposes and paying any taxes owed on the
amounts. Neither the Settlement Administrator, Plaintiffs, U.S. Bank, nor any of their lawyers are
authorized to provide tax reporting advice and provide no advice as to whether receipt of this payment
will impact your prior or future tax filings. You should obtain independent tax advice regarding these
matters.

C.

What if the information on my Share Form is incorrect?

You are not able to dispute the amount that is allotted to you under the terms of the settlement agreement.
However, if you believe that the amount you receive from the Settlement has been incorrectly calculated
due to an error in records showing your dates of employment in a Class Position, you may dispute or
“challenge” the listed time period(s) in which you worked in a Class Position during the Class Period.
The Share Form enclosed with this Notice lists the dates that you worked for U.S. Bank in a Class
Position during the Class Period. If you think that the dates worked are incorrect, you may challenge it by
sending a written challenge along with any documents or other supporting evidence to the Settlement
Administrator. Such challenges must be post-marked by no later than __________.
U.S. Bank’s records will be presumed to be correct, but U.S. Bank will evaluate any information and
evidence submitted by you. Any disputes will be finally resolved by the parties.
If the Share Form does not correctly state your name or contact information, please inform the
Settlement Administrator immediately. You can do this by calling or writing to:
U.S. Bank Class Position Settlement Administrator
c/o Dahl Administration.
ADDRESS AND TOLL FREE PHONE

D.

When will I receive my Settlement Payment(s)?

The first round of Settlement Payments will be made approximately 50 days after final court approval of

the Settlement and after all rights to appeal or review are exhausted or any appeal or review has been
resolved in favor of the Settlement. The earliest that this could occur is XXX. The second round of
payments – paid only to Employees in Class Positions who cash their check in the first round of payments
– will be sent approximately four and a half months later. You will have 90 days to cash your first
settlement check. If you do not cash it, you will not be eligible for any further money, but you will still
release your claims against U.S. Bank, as set forth in section G below.

E.

What can I do if I oppose the Settlement?

You may object to the terms of the Settlement before final approval, either by filing a written objection or
filing a notice of your intent to appear and object at the final approval hearing at the time and place listed
below in this notice. However, if the Court rejects your objection and approves the Settlement you will
be bound by the terms of the Settlement.
To object, you must send a written notice of objection or a written notice of your intent to appear and
object at the final approval hearing to the Settlement Administrator, with a copy to the Class Counsel, at
the addresses shown below. The Settlement Administrator will file your objection with the Court before
the final approval hearing. DO NOT TELEPHONE THE COURT OR DEFENDANT’S COUNSEL.
Any written objection and/or notice of your intent to appear at the hearing must state each specific reason
in support of your objection. Your written objection and/or notice of your intent to appear at the hearing
must also state your full name, address, date of birth, and dates of your employment at U.S. Bank. To be
valid and effective, the Settlement Administrator and/or the Court must receive any written
objections and/or notices of intent to appear at the hearing no later than [________]. A Settlement
Class Member who fails to file and serve a written statement of objection in the manner described above
and by the specified deadline will be deemed to have waived any objections and will be foreclosed from
making any objection (whether by appeal or otherwise) to the Settlement.
To object, send your objection to :
U.S. Bank Class Action Settlement Administrator
c/o Dahl Administration
ADDRESS AND TOLL FREE PHONE
And also send a copy of your objection to:
Eve H. Cervantez
Laura S. Trice
ALTSHULER BERZON LLP
177 Post Street, Suite 300
San Francisco, CA 94108
Telephone: [phone]
Facsimile: [phone]

Harvey Sohnen
Patricia Kelly
LAW OFFICES OF SOHNEN & KELLY
2 Theatre Square, Suite 230
Orinda, CA 94563
Telephone: [phone]
Facsimile: [phone]

F.

What if I Do Not Want to Be Part of This Settlement?

If you do not want to participate in this Settlement, you must notify the Settlement Administrator in
writing of your decision to “opt-out” of the settlement. If you opt-out of the settlement, you will not
receive any money from the settlement but you will retain your rights to bring any claims against U.S.
Bank that are otherwise released by the settlement. If you do not opt-out, you will be bound by the terms
of the settlement and will receive payment under the settlement.
If you choose to opt-out of the settlement, your request must be postmarked no later than sixty days
from the date this notice is mailed, _______. Your mailed notice of intent to opt out of the case must
state: “I wish to opt-out of the settlement of this case, Brooks v. U.S. Bank (N.D. Cal. Case No. C124935EMC). I understand that by requesting to be excluded from the settlement, I will receive no money
from the class action settlement in this lawsuit, but that I am preserving any rights I would otherwise have
to sue U.S. Bank for the claims made in this lawsuit.” You must also: (a) include your full name,
address, and date of birth; and (b) sign the opt-out request. Please send the opt-out request directly to the
settlement administrator at the following address: ____________.

G.

What claims will I release by participating in the Settlement?

If you do not opt out from the settlement, you will release the claims resolved in the Agreement. This
means that in exchange for any money you receive under the settlement, you will not be able to sue or
continue to sue U.S. Bank in any other case that involves the claims alleged in the First Amended
Complaint in this lawsuit or claims that could have been brought based on the facts alleged in the
Complaint or First Amended Complaint, whether they are known or unknown. Specifically, unless you
opt out of this Settlement, on behalf of yourself and your heirs and assigns, you release U.S. Bank from
the following “Released Claims”: (1) any claims, damages, or causes of action alleged in the First
Amended Complaint in this Action, whether known or unknown, as well as (2) similar claims that arise
from the same factual predicate of the Action, the Complaint, or the First Amended Complaint, whether
known or unknown, that exist through the date of Preliminary Approval. The Released Claims include
claims for failure to provide rest periods under California Labor Code sections 226.7, 558 and 1198
and/or California Industrial Welfare Commission Wage Order 4 section 12, failure to provide suitable
seating under California Labor Code section 1198 and/or California Industrial Welfare Commission Wage
Order 4 section 14, waiting time penalties under California Labor Code sections 201-203, improper wage
statements under California Labor Code section 226, unfair and unlawful business practices in violation
of the California Unfair Competition Law, Cal. Bus. & Prof. Code section 17200 et seq., and/or penalties
established by the California Private Attorney General Act, Cal. Labor Code section 2698 et seq. You
may discover facts in addition to or different from those which you now know or believe to be true with
respect to the subject matter of the Released Claims, but you will fully, finally and forever settle and
release any and all Released Claims, known or unknown, suspected or unsuspected, contingent or noncontingent, whether or not concealed or hidden, which now exist, or heretofore have existed upon any
theory of law or equity and without regard to the subsequent discovery or existence of such different or
additional facts. With respect to any and all Released Claims enumerated above, you will have waived
and relinquished, to the fullest extent permitted by law, the provisions, rights, and benefits of section 1542
of the California Civil Code, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR 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.

H.

What additional payments will be made to the Class Representatives?

In addition to their respective shares as participating Settlement Class Members, Plaintiff Brooks will be
paid up to $7,500, and Plaintiff Swoyer will be paid up to $2,500, subject to Court approval, for their
services as Class Representatives bringing this case, as well as their willingness to accept the risks of
being Class Representatives. These payments will be deducted from the Settlement Fund.

I.

What payments will be made for applicable taxes on Settlement Payments?

Taxes required to be withheld from Settlement Payments to Class Members will be withheld from the
portion (33 1/3%) of their checks allocated to payments for rest period wages. No tax withholdings will
be made by the Settlement Administrator on the remaining (66 2/3%) portion of Settlement Payments.

J.

What payments will be made to the attorneys representing the Settlement Class?

Class Counsel will request approval from the Court for payment of attorneys’ fees of 33 1/3 % of the total
Settlement, or $633,333, plus reimbursement of actual litigation costs up to $20,000. These amounts will
be deducted from the Settlement and are subject to Court approval. Class Members may request a copy of
the Motion for Attorneys’ Fees and Costs from Class Counsel, whose contact information is listed in
Section IV below. The motion will also be posted on Class Counsel’s website, [insert website].

K.

What payments will be made for costs of settlement administration?

The costs of administering the Settlement will be paid by U.S. Bank and will not be deducted from the
Settlement, except for the administration costs associated with any second round distribution that may
occur under the terms of the Settlement. In that event, such costs will be deducted from the Settlement.

L.

Who are my attorneys?

The Court has appointed the following attorneys to represent you and the rest of the class: Altshuler
Berzon LLP and the Law Offices of Sohnen & Kelly. Their contact information is listed in Section IV
below.
The Court has decided that Altshuler Berzon LLP and the Law Offices of Sohnen & Kelly are qualified to
represent you and all other Settlement Class Members. You do not need to hire your own attorney
because Class Counsel are working on your behalf. But if you want your own attorney, you may hire one
at your own cost. In some circumstances, Class Members’ attorneys may be able to recover a reasonable
award of attorney’s fees.

III.

FINAL SETTLEMENT APPROVAL HEARING

The Court will hold a final approval hearing on the proposed Settlement on June 12, 2014 at 1:30 p.m., at
Courtroom 5, United States District Court, Northern District of California, 450 Golden Gate Avenue, 17th
Floor, San Francisco CA 94102. The purpose of this hearing is to determine whether the Settlement
should be finally approved as fair, reasonable, and adequate. The Court will also be asked to approve
Class Counsel’s request for attorneys’ fees and expense reimbursement and the Class Representatives’
service payments. The hearing may be postponed without further notice to the Settlement Class
Members.
It is not necessary for you to appear at this hearing unless you wish to object to the Settlement. If you
have given written notice of your objection to the Settlement, you may appear at the hearing at your
option if you have filed a notice of intent to appear by _______________. If you have not given written
notice of your objection and intention to appear, any objection you have may not be heard by the Court.

IV.

GETTING MORE INFORMATION ABOUT THE SETTLEMENT

This Notice contains a summary of the basic terms of the Settlement. For the precise terms and
conditions of the Settlement, you are referred to the detailed Joint Stipulation of Class Action Settlement
and Release between Plaintiffs and U.S. Bank which can be obtained by contacting Plaintiffs’ counsel
listed below:
Eve H. Cervantez
Laura S. Trice
ALTSHULER BERZON LLP
177 Post Street, Suite 300
San Francisco, CA 94108
Telephone: [phone]
Facsimile: [phone]

Harvey Sohnen
Patricia M. Kelly
LAW OFFICES OF SOHNEN & KELLY
2 Theatre Square, Suite 230
Orinda, CA 94563
Telephone: [phone]
Facsimile: [phone]

Settlement Class Members may access the following website maintained by Class Counsel to view the First
Amended Complaint and settlement documents: (insert website address)

IMPORTANT:
1.

PLEASE DO NOT TELEPHONE THE COURT, U.S. BANK, OR U.S. BANK’S
LAWYERS FOR INFORMATION REGARDING THIS SETTLEMENT OR THE
CLAIMS PROCESS.

2.

If you move or change address, please send the Administrator your new address. It is
your responsibility to keep a current address on file with the Administrator to ensure
receipt of your Settlement Payment(s). Failure to do so may result in non-payment or
delay in payment. Please send any changes in your contact information to [information
for ___]

3.

It is strongly recommended that you keep a copy of any objection or opt out that you
submit, and proof of timely mailing and/or faxing, until after the Final Approval hearing.