Posts belonging to Category Settlements

A California federal judge has granted final approval to a settlement that is estimated to pay the average class member nearly $23,000. The $19 million settlement, one of 2012’s largest per-person settlements, was entered into between fast food giant Burger King and plaintiffs who alleged that Burger Kings fell short of ADA compliance, specifically as to wheelchair and scooter access. See Vallabhapurapu v. Burger King Corp., No. 11-0667 (N.D. Cal. Oct. 29, 2012) (Order Granting Motion for Final Approval). The settlement includes substantial injunctive and monetary components, and the negotiated attorneys’ fees are a modest twenty-five percent of the settlement fund. See Joint Final Approval Motion (Oct. 12, 2012). The settlement amount refers only to the cash component, as the parties do not even attempt to value the substantial injunctive components.

In addition to remedial architectural improvements that will bring the 77 Burger King locations covered by the settlement into ADA compliance, the settlement also provides for surveys and other monitoring devices to confirm the efficacy of those improvements. Joint Motion at 7-8. The court’s final approval order lauds the negotiated injunctive relief, noting that “the injunctive relief includes . . . the elimination of all accessibility barriers and the use of mandatory checklists with specific accessibility items for remodeling, alterations, repairs, and maintenance.” Order at 2. Reflecting the settlement’s generous terms, there were no objections and only one class member opted out of receiving the cash payment. Order at 4.

The settlement’s monetary component is approximately double that of comparable ADA settlements. See Joint Motion at 13. Class member payments will be determined as a function of the number of store visits they made, up to a maximum of six, and will be calculated with reference to information provided on the claim forms sent to class members.

The parties have reached a settlement in an FLSA collective action alleging that certain Tyson Foods employees were not paid for the time they spent putting on and taking off protective clothing before and after clocking in. See Maxwell v. Tyson Foods, Inc., No. 08-00017 (S.D. Iowa Oct. 31, 2012) (Memo ISO Joint Motion for Preliminary Approval). Commonly referred to as a “donning and doffing” case, such allegations are frequently seen where job duties necessitate substantial protective gear and/or pre- and post-work safety procedures, as was the case for Tyson employees working on the production line. Tyson is best known for its chicken products, the processing of which exposes employees to various dangers, including automated slicers and bacteria.

The $950,000 settlement will be divided among two groups, all from a single Tyson plant in Council Bluffs, Iowa: (1) a class of 1,199 employees who used knives as part of their job, and (2) a class of 76 employees who did not. The per-employee award for the non-knife users is approximately 75% of that of the other class, since the knife users required extra safety equipment and thus spent more time donning and doffing. The settlement provides compensation for periods of unpaid work that defendants frequently argue are “de minimis” — in this case, the average employee worked just a few minutes a day off-the-clock. As such, Maxwell exemplifies an instance where the workers’ rights can only be practically vindicated through the mechanism of a collective or class action.

The parties have agreed to settle a class action in which a class of nearly 200,000 consumers alleged that a popular children’s clothing retailer collected customers’ addresses, emails, phone numbers and ZIP codes during credit card transactions, in violation of section 1747.08 of California’s Song-Beverly Credit Card Act of 1971. See Seebrook v. The Children’s Place Retail Stores, Inc., No. 11-0837 (N.D. Cal. October 25, 2012) (Motion for preliminary approval). The settlement will resolve five consolidated class actions, pending court approval.

The proposed settlement presents class members with the choice of either a 30% coupon or $10 gift card, redeemable only at California Children’s Place locations. Additionally, the settlement’s injunctive relief component provides class members with the option of removing their personal information from the store’s marketing campaign database, and includes a commitment from The Children’s Place to revise its procedures for collecting customer information during credit card transactions.

While the Memorandum of Points and Authorities in support of the preliminary approval motion acknowledges that “the dollar value of the settlement per Class member may be relatively small,” it goes on to explain that where the relief negotiated in a settlement is directly responsive to the underlying allegations, and those allegations are difficult to prove, such a settlement is appropriate. See MPA at 13:22-27, citing Chavez v. Netflix, Inc., 162 Cal. App. 4th 43, 55 (2008).

A federal judge in California’s Southern District has approved a settlement on behalf of consumers who used several popular online flower and gift sellers — Pro Flowers, Red Envelope, Cherry Moon Farms, Secret Spoon and Sharri’s Berries. Plaintiffs allege that these companies violated state and federal law by enrolling customers who made purchases through their websites into “membership programs” without their knowledge or consent. See In re: EasySaver Rewards Litigation, No. 09-02094 (S.D. Cal. filed Aug. 13, 2012).

The plaintiffs contend that they and other consumers were unwittingly enrolled in these programs. Specifically, the complaint alleges that, after customers provided their personal and payment information and completed their purchase, a window popped up thanking them for their order and offering a gift code for $15.00 off their next purchase. The window also contained a link to click on to claim the gift code. When customers clicked on it and input their zip code, they were then enrolled in the membership program and charged an activation fee and monthly fee, using the payment information they had used to complete their purchase. Plaintiffs allege that the pop-up window was part of an intentionally misleading and deceptive scheme.

The estimated two million class members are eligible to receive both a $20 credit and a cash refund as a result of the settlement. The total settlement fund is valued at $12.5 million, though the settlement proceeds include over $40 million in coupons that can be used by the settling consumers for purchases with the settling merchants.