USDC IN/ND case 3:05-md-00527-RLM-MGG document 3279 filed 03/22/19 page 1 of 354 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION ) Case No. 3:05-MD-527 RLM In re FEDEX GROUND PACKAGE ) (MDL 1700) SYSTEM, INC., EMPLOYMENT ) PRACTICES LITIGATION ) ) ) THIS DOCUMENT RELATES TO: ) ) Carlene Craig, et. al. v. FedEx Case No. 3:05-cv-530 RLM ) Ground Package Systems, Inc., ) ) PROPOSED FINAL APPROVAL ORDER This matter came before the Court for hearing on March 11, 2019, to consider final approval of the proposed ERISA Class Action Settlement reached by and between Plaintiffs Leo Rittenhouse, Jeff Bramlage, Lawrence Liable, Kent Whistler, Mike Moore, Keith Berry, Matthew Cook, Heidi Law, Sylvia O’Brien, Neal Bergkamp, and Dominic Lupo1 (collectively, “the Named Plaintiffs”), on behalf of themselves and the Certified Class, and Defendant FedEx Ground Package System, Inc. (“FXG”) (collectively, “the Parties”), the terms of which Settlement are set forth in the Class Action Settlement Agreement (the “Settlement Agreement”) attached as Exhibit A to the Joint Declaration of Co-Lead Counsel in support of Preliminary Approval of the Kansas Class Action 1 Carlene Craig withdrew as a Named Plaintiff on November 29, 2006. See MDL Doc. No. 409. Named Plaintiffs Ronald Perry and Alan Pacheco are not movants for final approval and filed an objection [MDL Doc. Nos. 3251/3261]. USDC IN/ND case 3:05-md-00527-RLM-MGG document 3279 filed 03/22/19 page 2 of 354 Settlement [MDL Doc. No. 3154-1]. Also before the Court is ERISA Plaintiffs’ Unopposed Motion for Attorney’s Fees and for Payment of Service Awards to the Named Plaintiffs, filed with the Court on October 19, 2018 [MDL Doc. No. 3243]. On September 5, 2018, the Court granted preliminary approval of the proposed ERISA Class Action Settlement. [MDL Doc. No. 3241]. This Court has reviewed and considered all documents and evidence submitted in support of preliminary and final approval, and the arguments presented in support of or against the Settlement and attorney’s fees at the Fairness Hearing held before the Court on March 11, 2019. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED: 1. Unless otherwise stated herein, all capitalized terms contained in this order shall have the same meaning and effect as stated in the ERISA Settlement Agreement (in addition to any capitalized terms defined herein). 2. Pursuant to Section I(B) of the Settlement, the ERISA Class certified on October 15, 2007 [MDL Doc. No. 906] is AMENDED, and the following classes are certified under Fed. R. Civ. P. 23 and 29 U.S.C. § 216(b) for settlement purposes only: (a) The “Kansas ERISA Class” includes: “All persons who: 1) entered into a FedEx Ground or FedEx Home Delivery Form Operating Agreement (now known as OP-149 and Form OP-149-RES); 2) drove a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) between February 11, 1998 and October 15, 2007 to provide package pickup and delivery services pursuant to the Operating Agreement; 3) were 2 USDC IN/ND case 3:05-md-00527-RLM-MGG document 3279 filed 03/22/19 page 3 of 354 dispatched out of a terminal in the state of Kansas, and 4) were eligible for ERISA plan benefits, absent their characterization as independent contractors.” (b) The ”Nationwide ERISA Class” means: “All persons, except class members in Carlson v. FedEx Ground Package System, Inc., Case No. 8:05-cv-1380 (Middle District of Florida), Harris v. FedEx Ground Package System, Inc., Case No. 4:06-cv-175 (Eastern District of Arkansas), and Riewe v. FedEx Ground Package System, Inc., Case No. 3:05-cv-390 (Northern District of Indiana), who: 1) entered into a FedEx Ground or FedEx Home Delivery Form Operating Agreement (now known as OP-149 and Form OP-149-RES); 2) drove a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) between January 9, 2001 and October 15, 2007 to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were eligible for ERISA plan benefits, absent their characterization as independent contractors.” 3. The Court finds that the administration of the Settlement process was performed in accordance with the ruling granting preliminary approval entered by this Court on September 5, 2018 [MDL Doc. No. 3241] and that the Settlement Notice was reasonable, constituted the most practicable notice under the circumstances, and complied with the requirements of the Federal Rules of Civil Procedure and due process. 4. The Court finds that the administration of the notice required by the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715, was performed in accordance with the ruling granting preliminary approval entered by this Court on September 5, 2018 and with the requirements of CAFA. 3 USDC IN/ND case 3:05-md-00527-RLM-MGG document 3279 filed 03/22/19 page 4 of 354 5. For the reasons stated at the Fairness Hearing, the Court overrules all objections made to the Settlement, finds that the Settlement is in all respects fair, reasonable, and adequate, and GRANTS the ERISA Plaintiffs’ Motion for Final Approval of the Proposed ERISA Class Action Settlement [MDL Doc. No. 3262]. The Parties are directed to perform, or cause to be performed, the remaining terms of the Settlement as set forth in the Settlement Agreement. The Court authorizes the payment by the Settlement Administrator of Valid Claims that have been approved by the Settlement Administrator, in accordance with the terms of the Settlement Agreement. The court further approves the Parties’ agreed upon procedure for disbursement of the reserve fund that is provided for by the Settlement Agreement, with such claims to be paid approximately 180 days after checks are issued to pay the claims of persons who fit the class definition but who were not previously identified as members of the Class according to the settlement formula described in the Settlement Agreement. 6. Upon the entry of this Final Approval Order, all ERISA Class Members (attached hereto as Exhibit A) shall be deemed to have fully, finally, and forever released, relinquished, and discharged all Released Claims against all Releasees. As set forth in the Settlement Agreement, which is incorporated by reference herein, the “Released Claims,” as to ERISA Plaintiffs and all ERISA Class Members, means all claims, actions, causes of action, administrative claims, demands, debts, damages, penalties, costs, interest, attorney’s fees, obligations, judgments, 4 USDC IN/ND case 3:05-md-00527-RLM-MGG document 3279 filed 03/22/19 page 5 of 354 expenses, or liabilities, in law or in equity, whether now or unknown, contingent or absolute, which: (i) are owned or held by Plaintiffs, and Class Members and/or by their affiliated business entities (if any), or any of them, as against Releasees, or any of them; (ii) arise under or relate to the allegations in the Operative Complaint pertaining to the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq., or claims under any law which seek recovery of employee benefits which were or could have been sought as damages in the Operative Complaint; and (iii) pertain to any time in the Release Period. The Released Claims include any known or unknown claims for damages and injunctive relief. The Released Claims include but are not limited to claim under the Employee Retirement Income Security Act of 1974. 29 U.S.C. §§ 1001 et seq. 7. Upon the entry of this Final Approval Order and judgment, Plaintiffs and all ERISA Class Members are barred and enjoined from asserting, filing, maintaining, or prosecuting, or in any way participating in the assertion, filing, maintenance or prosecution, of any action asserting any Released Claim against any of the Releasees, as set forth in and in accordance with the terms of the Settlement Agreement. Nothing herein shall in any way impair or restrict the right of the Parties to enforce the terms of the Settlement. 8. The parties’ request for appointment of Kansas Legal Services, 712 S. Kansas Ave, Suite 200, Topeka, KS 66603 to be the cy pres beneficiary is APPROVED. 5 USDC IN/ND case 3:05-md-00527-RLM-MGG document 3279 filed 03/22/19 page 6 of 354 9. Without objection, the Court finds that the plaintiffs’ request for attorneys’ fees and service awards is fair and reasonable, and GRANTS the ERISA Plaintiffs’ Motion for Attorney’s Fees and Costs and Approval of Service Awards to Named Plaintiffs [MDL Doc. No. 3243]. 10. The Court APPROVES the Service Awards of $5,000 to Named Plaintiffs Leo Rittenhouse, Jeff Bramlage, Lawrence Liable, Mike Moore, Keith Berry, Matthew Cook, Heidi Law, Sylvia O’Brien, Neal Bergkamp, Dominic Lupo, Alan Pacheco and Ronald Perry, and payment of $7,500 to Kent Whistler. The Court directs payment of that amount from the Class Settlement Fund to each of them, in accordance with the terms of the Settlement Agreement. 11. Neither the Settlement, nor any act performed or document executed pursuant to or in furtherance of the Settlement, is or may be deemed to be or may be used as: (a) an admission of, or evidence of, the validity of any Released Claim or any wrongdoing or liability of any Releasee; (b) an admission or concession by Plaintiffs or any Class member of any infirmity in the claims asserted in the Operative Complaint filed in this action; (c) an admission of, or evidence of, any fault or omission of any of the Releasees in any civil, criminal, or administrative proceeding in any court, administrative agency, or other tribunal.