McCurley v. Flowers Foods Inc et al

Filing 171

JOINT ORDER REGARDING INDIVIDUALS WHO FAILED TO SIGN NEW DISTRIBUTOR AGREEMENTS. Signed by Honorable J Michelle Childs on 11/14/2018. (asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
PAUL MCCURLEY, III, individually and )
on behalf of all similarly situated )
)
individuals,
)
)
Plaintiffs,
)
v.
)
FLOWERS FOODS, INC. and DERST )
)
BAKING COMPANY, LLC,
)
)
Defendants.
)

Civil Action No.: 5:16-cv-00194-JMC
JOINT ORDER REGARDING
INDIVIDUALS WHO FAILED TO
SIGN NEW DISTRIBUTOR
AGREEMENTS

On July 13, 2018, Plaintiffs filed an Unopposed Motion for Final Approval of the
Proposed Class and Collective Action Settlement in this matter. (ECF No. 160.) The court held a
Fairness Hearing on August 28, 2018. (ECF No. 164.) On September 10, 2018, the court issued
an Order, granting final approval of the Class and Collective Action Settlement. (ECF No. 165.)
Per that Order, all settlement class members who are current distributors and who did not timely
opt out of the settlement were required to execute a copy of the New Distributor Agreement
within 45 days, by October 25, 2018. (Id. at 3.) The Order further provided that the Parties were
to notify the court within 5 days of that deadline if there remained any unmet conditions of
settlement, including the execution of New Distributor Agreements. (Id.)
Defendant Derst Baking Company, LLC, through its counsel, gave timely notice of the
unmet conditions of the Settlement Agreement. Specifically, the Parties agree that the following
five (5) members of the Rule 23 Class were required to sign New Distributor Agreements and
have not done so, despite multiple notices from the Settlement Administrator and counsel:
1.
2.
3.
4.
5.

Matthew Stuck
James G. Boles
Edward D. Robertson
Joseph Donoghue
Michael D. Morrow
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The Settlement Agreement contemplates that settlement class members who fail to timely
execute the New Distributor Agreement may be “treated as having filed a proper Opt-Out
Request.” (ECF No. 142-2, ¶ 3.22.) Here, the Parties stipulate, and the court hereby finds, that
the above-referenced five (5) individuals have failed to comply with the conditions of the
settlement and are hereby deemed to have opted out of the settlement and are not entitled to any
distribution or recovery thereunder.
The Parties stipulate and the court orders that the funds identified for distribution to the
above-listed individuals in Exhibit 9 to the Settlement Agreement shall instead be distributed by
the Settlement Administrator to the remainder of the Rule 23 Class on a pro rata basis. Upon
entry of this order, the Settlement Administrator may proceed with distribution of settlement
funds.
IT IS SO ORDERED.

United States District Judge
November 14, 2018
Columbia, South Carolina

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WE SO STIPULATE:
OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.

RICHARDSON PATRICK WESTBROOK
& BRICKMAN, LLC

s/Michael Oliver Eckard
Michael Oliver Eckard (FBN 12055)
Luci L. Nelson (FBN 10341)
211 King Street, Suite 200
Charleston, SC 29401
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

s/Matthew A. Nickles
Terry E. Richardson, Jr. (FBN: 3457)
Chris Moore (FBN: 10445)
Matthew A. Nickles (FBN: 1101)
1730 Jackson Street
Post Office Box 1368
Barnwell, South Carolina 29812
T: 803.541.7850
F: 803.541.9625
[e-mail]
[e-mail]
[e-mail]

Charles T. Speth (FBN 4258)
1320 Main Street, Suite 600
Columbia, SC 29201
803.252.1300 (telephone)
803.254.6517 (facsimile)
[e-mail]

Attorneys for Defendants

James F. Walsh, Jr.
1436 Amelia Street
Orangeburg, South Carolina 29115
T: 803.534.6061
[e-mail]
Attorneys for Plaintiffs

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