Juan Saravia v. Dynamex, Inc. et al

Filing 252

ORDER REJECTING PROPOSED FORM OF NOTICE. Signed by Judge Alsup on 12/30/16. (Attachments: # 1 Exhibit)(whalc1, COURT STAFF) (Filed on 12/30/2016)

<<Class Member Name>> 
<<Street Address>> 
<<City, State Zip>> 

NOTICE OF COLLECTIVE ACTION SETTLEMENT 

This is a Notice of Settlement for the Collective Action Titled:  
Saravia v. Dynamex, Inc., et al. 
United States District Court, Northern District of California 
Case No. 3:14‐CV‐05003‐WHA 

Please Read This Entire Notice Carefully.  This Notice Is Available In English And 
Spanish.  This Notice Involves Your Legal Rights.  This Notice Is Not A 
Communication From The Court And It Is Not An Expression Of Any Opinion By The 
Court As To The Merits Of The Claims Or Defenses By Either Side In The 
Lawsuit.  Please Do Not Contact The Court About This Matter. 

A federal court authorized this notice.  This is not a solicitation from a lawyer. 

You  are  receiving  this  notice  because  you  opted  into  a  lawsuit  against  Dynamex 
s
West  Operations,  LLC  (“Dynamex”).    The  lawsuit  alleged  that  Dynamex  failed  to 
pay  minimum  wage,  overtime  wages,  and  compensation  for  all  hours  worked  to 
transportation  service  providers  of  Dynamex,  by  misclassifying  them  as 
independent  contractors  rather  than  employees.    Dynamex  disputed s the 
have
allegations.  Both sides strenuously fought for their positions during the course of 
the  case,  and  eventually  reached  a  compromise  or  “settlement.”    The  Court  has 
preliminarily
potentially  approved  this  settlement.    This  Notice  describes  your  rights  and 
potential benefits under the settlement.   ,subject to a further hearing to

consider any objections by opt-ins.
Why did I get this Notice?  You received this Notice because a proposed settlement of a collective 
action lawsuit filed against Dynamex by a transportation service provider, Juan Saravia, has been 
reached  in  the  United  States  District  Court  for  the  Northern  District  of  California  (Saravia  v. 
Dynamex, Inc., et al., United States District Court, Northern District of California, Case No. 3:14‐cv‐
05003‐WHA).  (the “Settlement”). 

This  Notice  summarizes  the  proposed  Settlement.    For  the  precise  terms  and  conditions  of  the 
Settlement,  you  can  review  the  settlement  agreement  available  by  emailing 
[e-mail].    If  you  want  more  information,  you  can  also  contact  class 
counsel (whose contact information is at the end of this Notice), access the Court docket in this 
case  through  the  Court’s  Public  Access  to  Court  Electronic  Records  (PACER)  system 
at  https://ecf.cand.uscourts.gov, or you can visit the office of the Clerk of the Court for the United 

States District Court for the Northern District of California between 9:00 a.m. and 4:00 p.m.,
Monday through Friday, excluding Court holidays at the following address: 450 Golden Gate
Avenue, 19th Floor, San Francisco, CA 94102-3489.
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You are receiving this Notice because you are in the Settlement Class. You are in the Settlement
Class because you have consented to join this lawsuit and, later, filed a second consent to stay in
this lawsuit on or about November, 2016. You were eligible to participate in this lawsuit because
Dynamex’s records indicate that you contracted to provide transportation services to Dynamex in
California on or after November 12, 2011 through December 31, 2016 (the "Class Period"), and
that you signed a 2011 or 2012 version of the Independent Contractor Operating Agreement. This
Notice describes your rights and potential benefits from a collective action settlement.
You have the right to opt-out of the settlement, as described below.
A person who does not exclude himself or herself is a “Settlement Class Member.” The Court
authorized this Notice because you have a right to know about the proposed Settlement and your
options before the Court decides whether to approve the proposed Settlement. Because your
rights will be affected by this Settlement, it is extremely important that you read this Notice.

SUMMARY OF YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:
If you do not exclude yourself, as described below, you will
receive a check. You have ninety (90) days from the date your
individual settlement payment check is prepared to cash your
settlement check. If you receive and cash a Settlement Check,
you will release all claims asserted in the lawsuit over the
DO NOTHING / RECEIVE AND Class Period. If you do not exclude yourself, challenge, or
CASH A CHECK
object, and fail to cash your check, you will still remain a part
of the case and will still release all claims asserted in the
lawsuit over the Class Period. In this event, the amount of your
settlement check will be paid instead to California Rural Legal
Assistance and Legal Aid at Work (formerly known as the Legal
Aid Society—Employment Law Center).
You may exclude yourself from the Settlement by requesting
exclusion from the settlement in which case you will receive no
payment, but will preserve whatever right you might otherwise
have, if any, to pursue your claims in a separate lawsuit. This
option could allow you to bring your own lawsuit or claim, or to
be a part of another lawsuit against Dynamex for the same or
UNCONDITIONALLY
similar claims brought in this lawsuit during the Class Period,
EXCLUDE YOURSELF
including claims for unpaid wages and unlawful deductions. To
unconditionally exclude yourself from the Settlement, you
must send a letter by mail to the “Dynamex Settlement”
address listed below that includes the words: “I understand my
rights and request to be excluded from the Dynamex
Settlement. I understand I will not receive a settlement
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payment.” This process is explained further below.
If you exclude yourself from the settlement, you will not be
entitled to receive any payment from the settlement fund.
You may challenge or object to the proposed Settlement by
writing to the ”Dynamex Settlement” address listed below and
explaining why you disapprove of the proposed Settlement. If
you challenge or object, you may also ask to speak in Court
about the fairness of the settlement at the Final Fairness
Hearing. If you a challenge or object, you may only appear in
CHALLENGE/OBJECT BUT DO
Court to speak about the fairness of the settlement if you mail
NOT EXCLUDE YOURSELF
a timely written challenge or objection to the settlement to the
“Dynamex Settlement” address listed below and you indicate
your intent to speak at the hearing. If your challenge or
objection is overruled at the hearing, you will remain a part of
the settlement and will still receive a check.

CHALLENGE/OBJECT AND
CONDITIONALLY EXCLUDE
YOURSELF

Alternatively, you may challenge or object to the proposed
Settlement and conditionally opt out if your challenge or
objection is overruled. Choosing this option will mean that you
will remain part of the settlement and receive a check, but only
if the Court accepts your objection or challenge; you will not
remain part of the settlement or receive a check if the Court
overrules your objection or challenge. To choose this option,
you must challenge or object in the manner described in the
box above and explained further below. But – when you
submit your challenge or objection, you must also state on your
challenge or objection: “I understand my rights and request to
be conditionally excluded from the Dynamex Settlement. I
understand that if the Court overrules my challenge(s) and/or
objection(s), I will be excluded from the Settlement and will not
receive a settlement payment.”

What is this lawsuit about? A former transportation service provider (“TSP”) for Dynamex
brought this lawsuit alleging that Dynamex failed to pay California TSPs all wages due, failed to pay
minimum wages, overtime wages, and compensation for all hours worked. Dynamex strenuously
disputes the allegations, but has agreed to settle the lawsuit in order to avoid the burden,
expense, inconvenience, and uncertainty of continued litigation.
What are the terms of the Settlement? To settle the lawsuit, Dynamex has agreed to pay a
Settlement Amount of five hundred thousand dollars ($500,000) to be divided between the 107
Plaintiffs (including you) who have opted into the case. The $500,000 will be split up between the
Plaintiffs proportionally, based on the calculated overtime hours each Plaintiff worked as indicated
by the Driver Activity Reports that Dynamex maintains. This calculation method is explained in
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more detail below. The Settlement Amount of $500,000 will cover the payments to eligible
persons in the Settlement Class, including all interest and employee-side withholding taxes (such
as FICA and FUTA) on all settlement amounts paid out as wages as explained further below.
Payments. Plaintiffs who do not exclude themselves from the Settlement (i.e. Settlement Class
Members) will receive a payment that will be calculated based on the number of potential
overtime hours the Settlement Class Member provided for Dynamex in California during the Class
Period. The potential overtime hours will be calculated through the Driver Activity Reports that
Dynamex maintains. These reports track the starting and ending times of each delivery, and
therefore provide a proxy for determining the number of potential overtime hours each
Settlement Class Member worked in California during the Class Period. Each Settlement Class
Member’s share of the $500,000 will go up or down depending upon the number of potential
overtime hours that Settlement Class Member has when compared to the other Settlement Class
Members. Settlement Class Members who do not have any potential overtime hours shown by
the Driver Activity Reports still will receive a minimum payment of two hundred dollars ($200).
Per these calculations, the amount you are estimated to receive, if you do not exclude yourself
from the Settlement, is set forth in the box marked “Estimated Settlement Payment.” Note, the
Estimated Settlement Payment is a preliminary calculation. If one or more Settlement Class
Members successfully challenge Dynamex’s records, the Estimated Settlement Payment for the
other Settlement Class Members, including you, shall be modified accordingly. To accept this
payment from the proposed Settlement, you do not need to do anything other than cash the
check that will be sent after the Court finally approves the settlement.
How much is my settlement payment? Under the settlement allocation formula you are
projected to receive approximately the following amount:
Estimated Settlement Payment:

$__________

The amount above will be reduced for any requested or required withholdings, including state and
federal taxes, income withholding orders, garnishments, or levies. Half (50%) of the above
payment will be treated as wages, subject to payroll taxes, and reported on a W-2. Twenty
percent (20%) of the above payment will be treated as interest and thirty percent (30%) will be
treated as non-wage liquidated damages. Payroll tax withholdings will not be withheld from the
non-wage portion of any payment, which portion will be reported on a Form 1099 if required by
law. Neither Class Counsel nor Dynamex makes any representations concerning the tax
consequences of this settlement or participation in it, and you are advised to seek your own
personal tax advice prior to acting in response to this Notice. Further, Dynamex’s treatment of any
part of the settlement amount as wages does not mean that Dynamex believes or admits that you
should have been treated as an employee as opposed to an independent contractor. Nor does this
settlement mean that Dynamex will treat you as an employee going forward.
Who is included in the Settlement? You are included in the Settlement because you signed an
Independent Contractor Operating Agreement either in 2011 or 2012, performed transportation
services for Dynamex in California at some time during the Class Period, and opted into this
lawsuit twice.
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HOW YOU GET A PAYMENT

promptly

How do I get my payment? To receive your settlement payment, you do not need to do anything
other than cash the check that will be sent after the Court finally approves the settlement. If you
choose to exclude yourself, follow the procedure set forth below.

EXCLUDING YOURSELF FROM THE SETTLEMENT
How do I exclude myself? If you don’t want to be included in the Settlement, you must
exclude yourself from this Settlement. You can either unconditionally exclude yourself or
conditionally exclude yourself. To unconditionally exclude yourself from the Settlement, you must
send a letter by mail that includes the words: “I understand my rights and request to be excluded
from the Dynamex Settlement. I understand I will not receive a settlement payment.” To
conditionally exclude yourself from the Settlement, you must send a letter by mail that includes
the words: “I understand my rights and request to be conditionally excluded from the Dynamex
Settlement. I understand that if the Court overrules my challenge(s) and/or objection(s), I will be
excluded from the Settlement and will not receive a settlement payment.” With either a
conditional or unconditional request for exclusion, you must sign the letter and include your full
name, address, last four digits of your Social Security or FEIN Number, and telephone number(s).
signed,
The letter must be dated and sent to Littler Mendelson, (Settlement Administrator and Counsel for
Dynamex) so it is postmarked on or before March 2, 2017 [to be updated based on the date the
Notice is mailed] and received at the following address:
sent to and receuved
Dynamex Settlement
Littler Mendelson
Rob Hulteng
Aurelio Pérez
333 Bush Street, 34th Floor
San Francisco, CA 94104
If you properly request to be unconditionally excluded, you will not be legally bound by
anything that happens in this lawsuit. You also will not be eligible to receive any settlement
payment, and you will not be allowed to object to the settlement. If you properly request to be
conditionally excluded, and your challenge(s) and/or objection(s) are overruled (i.e., denied) by
the Court, you will not be legally bound by anything that happens in this lawsuit. You also will not
be eligible to receive any settlement payment.

THE LAWYERS REPRESENTING YOU
Do I have a lawyer in this case? The Court has decided that the lawyers at the law firm of
SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP are qualified to represent you and the
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other Plaintiffs. This law firm and its lawyers are called “Class Counsel.” The contact information
for Class Counsel is:
SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP
Todd Schneider, Joshua Konecky, and Nathan Piller
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: [phone]
Toll free: [phone]
Facsimile: [phone]
Email: [e-mail]
How will the lawyers be paid? Class Counsel have pursued the lawsuit on a contingent fee
basis and have not yet received any payment of fees or any reimbursement of their out-of-pocket
expenses related to the recovery on behalf of the Settlement Class Members. As part of the
settlement, subject to Court approval, Class Counsel will ask the Court to award payment of their
fees and costs, based on the number of hours they invested into the case and other factors. None
of the fees or costs that Class Counsel seek or that the Court awards will come from the
Settlement Amount earmarked for you and the other Settlement Class Members. In other words,
the $500,000 Settlement Amount to be distributed to you and the other Settlement Class
Members will stay the same regardless of the amount of attorneys’ fees and costs that the Court
may award. Court-approved fees will compensate Class Counsel for investigating the law and
facts, litigating the case, and negotiating the settlement.
Class Counsel will also ask the Court to approve a “service payment” of up to $7,500 to Mr.
Saravia, for his active participation in the lawsuit before the settlement and in recognition of the
risks he took and his service to the Class. This also will not come from the settlement amount
earmarked for you and the other Settlement Class Members.
Class Counsel’s motion for attorneys’ fees and service payment will be filed with the Court
by January 26, 2017 and will be available for your review. You may obtain a copy by contacting
class counsel (whose contact information is at the end of this Notice), accessing the Court docket
in this case through the Court’s Public Access to Court Electronic Records (PACER) system
at https://ecf.cand.uscourts.gov, or visiting the office of the Clerk of the Court for the United
States District Court for the Northern District of California between 9:00 a.m. and 4:00 p.m.,
Monday through Friday, excluding Court holidays at the following address: 450 Golden Gate
16th
Avenue, 19th Floor, San Francisco, CA 94102-3489. Settlement Class Members may object to the
terms of the settlement and/or to the Class Counsels’ request for attorneys’ fees and expenses,
and/or to the requested service payment.

CHALLENGING/OBJECTING TO THE SETTLEMENT
How do I challenge or object to the Settlement? As a Settlement Class Member, you may
challenge Dynamex’s records or object to the proposed settlement in writing. You must give
reasons why you think the Court should not approve it. The Court will consider your views. To
challenge or object, you must send a letter by mail that includes the words: “I object to the
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Dynamex Settlement.” as well as all reasons for the challenge or objection. If you challenge
Defendant’s records, you must submit a challenge in writing to Defendant and you will bear the
burden of proof. This means that if you fail to provide written documentation supporting a
different amount than your Estimated Settlement Payment, your challenge will be denied. You
must sign the letter and include your full name, address, last four digits of your Social Security or
FEIN, and telephone number(s).
If you wish to conditionally exclude yourself from the Settlement, you must follow the
process described above (i.e., include in your objection/challenge the following statement: “I
understand my rights and request to be conditionally excluded from the Dynamex Settlement. I
understand that if the Court overrules my challenge(s) and/or objection(s), I will be excluded from
the Settlement and will not receive a settlement payment.”)
You may also appear at the Final Approval Hearing, either in person or through your own
attorney. If you appear through your own attorney, you are responsible for paying that attorney.
All written objections or challenges and supporting papers must clearly identify the case name and
number (Saravia v. Dynamex, Inc., et al., United States District Court for the Northern District of
California, Case No. 3:14-cv-05003-WHA) and be submitted to the Claims Administrator so it is
postmarked on or before March 2, 2017 [to be updated based on the date the Notice is mailed]
and received at the following address:
Dynamex Settlement
Littler Mendelson
Rob Hulteng
Aurelio Pérez
333 Bush Street, 34th Floor
San Francisco, CA 94104
What is the difference between challenging/objecting and excluding?
Challenging/objecting is simply telling the Court that you disapprove of something about the
Settlement. If you choose to challenge or object, you can stay in the settlement class irrespective
of those challenges or choose to remove yourself if those challenges are overruled If you
unconditionally exclude yourself from the Settlement Class, you may not object. Unconditionally
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.
Conditionally excluding yourself is telling the Court that you only want to be a part of the
Settlement Class if the Court sustains (i.e., grants) your objections.

THE COURT’S FINAL FAIRNESS HEARING
What is the Final Fairness Hearing? The Court will hold a Final Fairness Hearing to decide
whether to approve the Settlement. If you wish, you may attend and you may ask to speak. If you
wish to bring anything to the Court’s attention about the Settlement, you must provide it in
writing in your letter to the Settlement Administrator objecting to the Settlement. The Settlement
Administrator will provide your letter to the Court before the fairness hearing.
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When and where will the Court decide whether to approve the settlement? The Court
will hold a Fairness Hearing on April 6, 2017 at 1:00 p.m., at the United States District Court for the
Northern District of California, 450 Golden Gate Avenue, Courtroom 8 – 19th Floor, San Francisco,
CA 94102.
At this hearing the Court will consider whether the Settlement is fair, reasonable, and
adequate. If there are challenges or objections, the Court will consider them. The Court will listen
to any people who have asked to speak at the hearing. The Court may also decide how much to
pay Class Counsel. After the hearing, the Court will decide whether to approve the settlement.
We do not know how long these decisions will take.
Do I have to come to the hearing? No. Class Counsel will answer questions the Court may
have. But, you are welcome to come at your own expense. If you send a challenge or objection,
you don’t have to come to Court to talk about it. As long as you submitted a timely, valid written
challenge or objection, the Court will consider it. You may also pay another lawyer to attend, but
it is not necessary.
May I speak at the hearing? If you file a timely, valid challenge or objection to the
Settlement, you may ask the Court for permission to speak at the Fairness Hearing. To do so, you
must include the words “I intend to appear at the Fairness Hearing” in your written challenge or
objection, which must be filed according to the procedure described above. Your testimony at the
Fairness Hearing will be limited to those reasons that are included in your written challenge or
objection. You cannot speak at the hearing if you exclude yourself from the settlement.

GETTING MORE INFORMATION
Are there more details about the settlement? This Notice summarizes the proposed
terms of the Settlement. More details are contained in the parties’ Settlement Agreement. You
can get a copy of the Settlement Agreement by sending a request, in writing, to:
Todd Schneider (SBN 158253)
[e-mail]
Joshua Konecky (SBN 182897)
jkonecky@ schneiderwallace.com
Nathan Piller (SBN 300569)
npiller@ schneiderwallace.com
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: [phone]
Toll free: [phone]
Facsimile: [phone]
Email: [e-mail]

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How can I get more information about the Settlement? If you have other questions about the
Settlement, you can contact Class Counsel at the addresses and/or telephone numbers above.
DATED:

[Insert Date of Mailing], 2017

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Email Communication (to be sent on the date of mailing of Class Notice):

Note - We are sending you information regarding the settlement of a lawsuit against Dynamex in

which you are a Plaintiff. This information has been sent to you via first-class mail. Please be on
the lookout for this message. If you have recently changed addresses or need a copy of this
information mailed to a different address, please respond to this email as soon as possible and
supply that address.

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