UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
________________________________________________________________________
| In re: Prime Succession,
Inc., FLSA Class Action Litigation |
CIV. ACTION NO.: 99-2278
D/BRE NOTICE OF PROPOSED SETTLEMENT OF CLASS AND HEARING |
________________________________________________________________________
IMPORTANT NOTICE
________________________________________________________________________
TO:
any individual
who is or was employed in a funeral
"Family Service
Counselor" includes anyone who was or is employed for the purpose of making sales and
performing in-office duties, including servicing at-need clients, and who was eligible to
be paid an hourly wage for in-office work and whose hourly wage could be supplanted by
commissions from sales in any workweek if and when those commissions were greater than the
earned hourly wage.
1. The above captioned class action is pending in this Court. It was brought representatively on behalf of a class consisting of all persons who are presently, or who have been at any time in the past from March 26, 1997, to the present, employed by Prime Succession, Inc., or any of its subsidiaries, in the position of Family Service Counselor. For the purposes of this class action, a Family Service Counselor is anyone who was or is employed for the purpose of making sales and performing in-office duties, including servicing at-need clients, and who is or was eligible to be paid an hourly wage for in-office work and whose hourly wage could be supplanted by commissions from sales in any workweek if and when those commissions were greater than the earned hourly wage.
2. This action was filed on March 26, 1999, in the United States District Court for the Western District of Tennessee, Western Division. This action is brought pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. The plaintiffs seek to recover from the defendants for themselves, and the class, all unpaid wages for those weeks, if any, when class members were paid less than the statutorily required minimum wage and all unpaid overtime wages, if any. The plaintiffs also seek an injunction prohibiting defendants’ alleged employment practices which caused plaintiffs to be paid less than minimum wage and to not be paid proper overtime wages.
3. Plaintiffs allege the following practices which
violate the FLSA, some or all of which were practiced on other members of the class: plaintiffs were required to work in-office duties
at the funeral home and/or cemetery at which they were employed, which included helping
clients of the funeral home and/or cemetery, as well as a variety of other duties. Plaintiffs also were required to develop sales
during both duty and non-duty hours and had their hourly wage for in-office work reduced
or eliminated by the commission from these sales. Plaintiffs
were instructed not to record any hours worked over eight in a day, no matter how many
hours they actually worked. In addition,
certain deductions were made from their salaries, including deductions for selling
materials, deductions for administrative and advertising expenses, deductions from
commissions to be placed in a reserve account, and deductions associated with the
production and delivery of their paychecks. As
a result of these practices, the plaintiffs allege that they and the class often were paid wages
which were below minimum wage and were often not paid time-and-a-half for overtime.
While Defendants do not admit to any of these allegations, they have agreed to settle the dispute, both with the named plaintiffs and with any class members who request to be included in the class.
4. This action was filed as a class action on behalf of the plaintiffs and all others similarly situated. The plaintiffs assert that the defendants are legally responsible to each member of the class for the amount of their unpaid minimum wages and overtime wages, for attorney’s fees, for court costs, for expenses, and for injunctive relief. Amounts due to each member of the class for unpaid minimum wages and overtime, if any, would be payable only for the two-year period prior to the date the individual class member files his or her Inclusion Request with the Clerk of Court.
5. On August 27, 1999, the Court ruled that this action should be maintained as a class action.
6. YOU ARE HEREBY FURTHER NOTIFIED THAT (i) A SETTLEMENT OF THE CLAIMS OF THE PLAINTIFF CLASS HAS BEEN PROPOSED BY THEIR ATTORNEYS AND ATTORNEYS FOR THE COMPANY AND APPROVED BY THE COURT; (ii) IF YOU OPT INTO THIS SETTLEMENT CLASS, YOU WILL OBTAIN ONLY THE RELIEF PROVIDED IN THIS SETTLEMENT AND YOU WILL HAVE NO FURTHER CLAIM AGAINST THE COMPANY FOR ANY MATTER OCCURRING DURING THE TWO-YEAR PERIOD UP TO AND INCLUDING THE DATE OF THE FILING OF YOUR CLAIM THAT WAS RAISED OR COULD HAVE BEEN RAISED IN THE ACTION FOR VIOLATION OF THE FAIR LABOR STANDARDS ACT OR ANY STATE WAGE & HOUR LAW OF APPLICABILITY.
7. This notice is given to you in the belief that you are a member of the above class whose rights may be affected by this lawsuit. It should not be understood as an expression of any opinion by the Court concerning the merits of these actions. The notice is intended merely to advise you of the pendency of the actions, of the settlement and of your rights with respect thereto.
8. The Court has designated the plaintiffs, Michael Beauregard, Gloria Jones, Bertha Williams, and Melinda Campbell, as class representatives. The Court has also designated Alan G. Crone, James R. Becker, Jr., James J. Webb, Jr., and the law firm of Crone & Mason, PLC, 8 South Third, Fifth Floor, Memphis, Tennessee, 38103, as counsel for the class. The Court has designated Alan G. Crone as lead counsel for the plaintiff class.
9. If you think you might be a member of the above class and if you wish to participate in the settlement of this lawsuit as a class member, you must request to be included in the class by notifying the Claims Administrator in writing, no later than 30 days from the date of mailing of this Notice, that you wish to be included. The attached “Inclusion Request” form may be used to notify the Claims Administrator of your desire to be included in the class of plaintiffs.
ANY CLASS MEMBERS WHO DO NOT NOTIFY THE Claims
administrator IN WRITING, BY 30 days from
the date of mailing of this Notice, OF THEIR DESIRE TO BE INCLUDED IN THE CLASS OF
PLAINTIFFS WILL NOT BE included in the class of plaintiffs in this lawsuit and will not
participate in the settlement of this lawsuit.
10. If you choose to be included as a member of the class of plaintiffs in this lawsuit, you may be entitled to share in the settlement of this action. You will not be responsible for any Court costs. You will, however, be bound by the settlement and cannot pursue a separate action concerning the same matters.
11. If you are included as a member of the class of plaintiffs in this lawsuit, you may enter an appearance in the action personally or through your own counsel at your own expense. If not, you will be represented by plaintiffs’ counsel. You will not incur liability for plaintiffs’ attorney’s fees or expenses if you become included as a member of the class, unless you retain your own counsel, which will be at your own expense.
you will only become a member of the class if you notify
the claims administrator in writing, by 30 days
from the date of mailing of this Notice, of your desire to be included in the class of
plaintiffs in this lawsuit. You may notify
the Claims administrator by filling out the attached “inclusion request” and
sending it to the claims administrator.
12. If you are not included as a member of the class of plaintiffs in this lawsuit, any settlement entered in this action will not be binding on you. You will not be entitled to share in the benefits of any settlement in this action.
13. To assist plaintiffs’ attorneys in contacting you, please notify the Claims Administrator, in writing, of any change of address or if the address to which this Notice was mailed is incorrect. If you become a member of the settlement class, you will be sent a Claim Form by class counsel to fill out which will help determine your share of the recovery.
14. It has been proposed by the attorneys for the plaintiff class and the attorneys for the Defendants, without any admission of liability by the Defendants, that this lawsuit be settled by the entry of a Stipulation of Settlement which, if approved, would be entered by the Court.
If you opt into the class, thereby becoming a member of the class, and if the proposed settlement is approved by the Court, you will receive such benefits, if any, as you qualify for under the terms of the settlement, and you will be forever barred from asserting any other rights with respect to the matters which are the subject of this litigation, and the action will be dismissed with prejudice as to all members of the class. If the proposed settlement is not approved, the offer of settlement will be deemed withdrawn and the lawsuit will continue as if the proposed settlement had not been made.
The terms of the settlement are set forth in the proposed Stipulation of Settlement and several related documents. The following is a brief summary of those terms. For a full statement of the terms and conditions of the proposed settlement, you should examine the proposed Stipulation of Settlement and related documents which are on file with the Clerk of the United States District Court for the Western District of Tennessee, Western Division, 242 Federal Building, 167 N. Mid-America Mall, Memphis, Tennessee. The Stipulation of Settlement and related documents can also be examined on the web site of Crone & Mason, PLC. The internet address for this web site is www.cronemason.com.
15. The following are the basic provisions of the proposed settlement of this class action:
a. The amount paid to each potential class member opting into the class shall be determined by a neutral claims administrator based upon information provided by that member on the Proof of Claim form and any other pertinent documents, which may be provided by counsel for the Defendants and/or the Plaintiff Class, and all disputes regarding the validity of any claim shall be resolved by arbitration subject to the Court’s approval.
b. The Defendants shall pay the sum of Two Hundred Thirty-Eight Thousand Three Hundred Dollars And No Cents ($238,300.00), subject to the Court’s approval, to the firm of Crone and Mason, PLC, as attorney’s fees. In addition, the Defendants shall pay reasonable fees and expenses in administering this settlement and for all time expended by counsel for Plaintiffs after the date of entry of the Order Approving Settlement, pursuant to the Stipulation of Settlement.
c. The Defendants shall abide by the requirements of
the Fair Labor Standards Act, 29 U.S.C. § 201, et
seq., for all Family Service Counselors, as well as any other laws prohibiting false,
deceptive or illegal employment practices.
16. If you are satisfied with the settlement, you must return the Inclusion Request. If you return the Inclusion Request you will be bound to the release, as well as entitled to participate in the settlement of this dispute.
17. If you return the Inclusion Request, you will receive a Proof of Claim form to be completed and returned within thirty (30) days of the date of its mailing to you. If you fail to timely return this Proof of Claim form, you will not be entitled to receive any amounts for your claim. If you timely return the Proof of Claim form, your claim will be determined by the Claims Administrator, who will notify you in writing of the amount of your approved claim. If you disagree with this amount, you will be entitled to dispute this claim by submitting your dispute to a neutral arbitrator for determination as outlined in the Stipulation of Settlement.
18. Letters and/or “Inclusion Requests” requesting inclusion in the class should be mailed first class mail and postmarked on or before 30 days from the date of mailing of this Notice to:
Claims Administrator
FLSA Class Action Litigation
Watkins, Watkins and Keenan
850 Ridge Lake Blvd.
Memphis,
Tennessee 38120
19. The pleadings and other papers filed in this action are available for inspection at the office of the Clerk of the Court, whose address is:
Robert R.
DiTrolio
Clerk of Court
242 Federal Bldg.
167 N. Mid-America Mall
Memphis, TN 38103
20. Any inquiry you or your counsel may wish to make concerning this notice or the settlement should be addressed in writing to:
James R. Becker, Jr., Esq.
Crone & Mason, PLC
8 South Third, Fifth Floor
Memphis, TN 38103
(901) 527-5522
e-mail: jbecker@cronemason.com
web site: www.cronemason.com
21. IF YOU DO NOT RETURN THE INCLUSION REQUEST FOR ANY REASON YOUR RIGHTS PURSUANT TO THE FAIR LABOR STANDARDS ACT WILL NOT HAVE BEEN ADJUDICATED AND YOU WILL BE LEFT TO YOUR INDIVIDUAL REMEDIES AS THEY MAY EXIST AT LAW.
Dated: _____________________
Claims Administrator
FLSA Class Action Litigation
Watkins,
Watkins and Keenan
850 Ridge
Lake Blvd.
Memphis, Tennessee 38120
Enclosure: Inclusion Request
If you have any questions concerning this class action, or how to include yourself in the plaintiff class, you may contact class counsel at (phone) 901-527-5522 or (e-mail) jbecker@cronemason.com . You may also view case documents at the following web site address: www.cronemason.com .
PLEASE
DO NOT CONTACT THE COURT, THE CLERK’S OFFICE, OR THE JUDGE.