exhibit a - baillon thome jozwiak & wanta, llp · 2020-01-22 · adam r. long 100 pine street,...

EXHIBIT A

Case 1:11-cv-02144-JEJ Document 34-1 Filed 03/05/13 of 41

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KENNETH YARBROUGH et al., : No. 1:11-cv-02144-JEJ individually and on behalf of all : similarly situated individuals, : : Judge John E. Jones, III Plaintiffs : : v. : Complaint filed : November 15, 2011 MARTIN'S FAMOUS PASTRY : SHOPPE, INC. : : JURY TRIAL DEMANDED Defendant :

AMENDMENT TO SETTLEMENT AGREEMENT AND RELEASE This Amendment to Settlement Agreement and Release

("Amendment") is entered into by and between Kenneth Yarbrough, Joseph

Magliozzi and Stephen Peck (collectively the "Named Plaintiffs" and/or

"Collective Class Representative"), as representative of the collective

plaintiff class in this Civil Action, and Martin's Famous Pastry Shoppe, Inc.

("Defendant").

WHEREAS, the Named Plaintiffs and Defendant are parties to a

Settlement Agreement and Release ("Settlement Agreement"), a true and

correct copy of which is attached hereto as Exhibit A; and


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WHEREAS, by Order dated January 15, 2013, this Court approved

the Settlement Agreement and dismissed with prejudice this Civil Action as

settled; and

WHEREAS, when implementing the terms of the Settlement

Agreement, the Parties determined that that the method set forth in

paragraph 1.10 of the Settlement Agreement to calculate the Per-Route

Settlement Amount could result in certain inequities among the

Participating Settlement Class Members, because the method does not

account for the fact that certain routes did not exist for the entire Collective

Class Period; and

WHEREAS, to address this potential inequity, the Parties have

agreed to modify the formula used to calculate each Participating

Settlement Class Member's Settlement Share to more closely align the

Settlement Share with the period of time said Participating Settlement

Class Member spent operating a route without a written Distributor

Agreement during the Collective Class Period; and

WHEREAS, as part of these subsequent negotiations, Defendant

agreed to increase the maximum amount of the Net Settlement Fund from

$216,000.00 to $244,684.21; and


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WHEREAS, the Parties wish to modify the Settlement Agreement to

reflect these subsequent agreed-upon changes, per the terms set forth in

Section XI of the Settlement Agreement.

NOW THEREFORE, the Parties hereto, intending to be legally

bound, agree to modify the Settlement Agreement as follows.

1. Except for those terms expressly defined herein, the terms

used in this Amendment shall have the meanings set forth in Section I of

the Settlement Agreement.

2. The terms expressly defined in Section 3 of this Amendment

shall have the meanings set forth therein wherever used in this

Amendment, the Settlement Agreement, and these documents' respective

exhibits, including the Collective Action Settlement Notice and the Opt-In

Consent Form.

3. The Parties agree to the following additional or revised

definitions:

a. "Amendment Approval Date" means the date on which

the Court enters an order approving the Amendment. With the

exception of the definition in paragraph 1.1 of the Settlement

Agreement, all other references to the term "Approval Date" in the


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Settlement Agreement shall be replaced with the term "Amendment

Approval Date."

b. Paragraph 1.3 of the Settlement Agreement is replaced

with the following: For purposes of the Settlement Agreement and

Amendment, the "Class" is defined as all individuals who (1) timely

file consent forms to opt-in to the above-captioned action pursuant to

29 U.S.C. § 216(b); (2) served as an Independent Distributor for

Defendant at any time between April 15, 2008, and January 15, 2013;

and (3) did not have a written Distributor Agreement while serving as

an Independent Distributor for Defendant during the Collective Class

Period, as defined herein.

c. Paragraph 1.6 of the Settlement Agreement is amended

to state as follows: "Collective Class Period" means the 57-month

period from April 15, 2008, through January 15, 2013.

d. The final sentence of Paragraph 1.8 of the Settlement

Agreement is amended to state as follows: The maximum amount of

the Net Settlement Fund shall be $244,684.21.

e. Paragraph 1.10 of the Settlement Agreement is amended

to state as follows: The "Per-Month Settlement Amount" means the


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sum calculated by dividing the Net Settlement Fund by 4,652, which

represents the total number of months during the Collective Class

Period spent by Independent Distributors servicing routes for which

the Independent Distributor did not have a written Distributor

Agreement, measured collectively.

f. In Paragraph 1.17 of the Settlement Agreement, the

phrase "paragraph 4.1" shall be replaced with the phrase "Paragraph

III.B.1."

4. Paragraph III.A.1 of the Settlement Agreement is amended to

state as follows: Upon approval of the Amendment by the Court,

Defendant will pay into the Settlement Fund a total of $244,684.21.

5. In Paragraph III.A.2 of the Settlement Agreement, the phrase

"Per-Route Settlement Amount" shall be replaced with the phrase "Per-

Month Settlement Amount."

6. Paragraph III.B.1 of the Settlement Agreement is amended to

state as follows: Each Participating Settlement Class Member shall be paid

an amount equal to the Per-Month Settlement Amount multiplied by the

total number of months for each distribution route during which said

Participating Settlement Class Member served as the Independent


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Distributor during the Collective Class Period without having a written

Distributor Agreement. Participating Settlement Class Members will be

credited with a month if they spent at least one-half of the month servicing

the route without a written Distributor Agreement during the Collective

Class Period, measured from the later of (1) the start of the Collective

Class Period or (2) the date on which the Participating Settlement Class

Member began servicing said route, as reflected in Defendant's records.

7. The form Collective Action Settlement Notice attached to the

Settlement Agreement as Exhibit A is replaced with the form Notice

attached hereto as Exhibit B.

8. The Opt-In Form attached to the Settlement Agreement as

Exhibit B is replaced with the Opt-In Form attached hereto as Exhibit C.

9. To the extent that any provision of this Amendment is

inconsistent with any provision of the Settlement Agreement, the terms of

this Amendment control.

10. To the extent that any provision of the Settlement Agreement is

not inconsistent with any provision of the Amendment, said provision in the

Settlement Agreement shall remain as previously written and in full force

and effect.


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IN WITNESS WHEREOF, the undersigned have duly executed this

Amendment as of the date indicated below:

LEVIN FISHBEIN SEDRAN & BERMAN Charles E. Schaffer Daniel C. Levin 510 Walnut Street, Suite 500 Philadelphia, PA 19106 (215) 592-1500 (phone)

BAILLON THOME JOZWIAK & WANTA LLP

Dated: March 5, 2013 By s/Shawn J. Wanta Shawn J. Wanta 222 South Ninth St., Suite 2955 Minneapolis, MN 55402 (612) 252-3570 (phone) (612) 252-3571 (fax)

Attorneys for Named Plaintiffs and the Collective Plaintiff Class

Dated: March 5, 2013 McNEES WALLACE & NURICK LLC By s/Carol Steinour Young

Carol Steinour Young Andrew L. Levy Adam R. Long 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 (phone) (717) 237-5300 (fax)

Attorneys for Defendant


EXHIBIT A


EXHIBIT B


{A3236279:1}

[insert date] IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA KENNETH YARBROUGH et al., : No. 1:11-cv-02144-JEJ individually and on behalf of all similarly : situated individuals, : Judge John E. Jones, III Plaintiffs : v. : MARTIN'S FAMOUS PASTRY : SHOPPE, INC. : Defendant. :

COLLECTIVE ACTION SETTLEMENT NOTICE

IF YOU SERVED AS AN INDEPENDENT DISTRIBUTOR FOR MARTIN'S FAMOUS PASTRY SHOPPE, INC. BETWEEN APRIL 15, 2008, AND JANUARY 15, 2013, AND DID NOT HAVE A WRITTEN DISTRIBUTOR AGREEMENT, YOU MAY BE ENTITLED TO A MONETARY AWARD FROM A COLLECTIVE ACTION SETTLEMENT. A Federal Court authorized this notice. This is not a solicitation from a lawyer. This is not a notice that you have been sued.

YOU MUST TAKE ACTION BY [DATE] TO PARTICIPATE IN THE SETTLEMENT

Class Members must complete and submit the enclosed CONSENT TO JOIN COLLECTIVE ACTION form to be eligible to receive a payment from the settlement fund.

If you are a Current Distributor, you must also execute and return your Independent Distributor Agreement to your Warehouse Manager, which has been previously provided by Martin's. Additional copies of your Independent Distributor Agreement are available from your Warehouse Manager.

The settlement resolves a lawsuit over whether Independent Distributors who did not have written Distributor Agreements and who delivered Martin's product were correctly classified as independent contractors and not employees. If you were an Independent Distributor and delivered Martin's products between April 15, 2008, and January 15, 2013, and did not have a written Distributor Agreement, you are a Class Member and are eligible to recover under this settlement.

If you are a Class Member, your legal rights may be affected by the settlement. Read this notice carefully.

The terms of this collective action settlement already have been approved by the Federal Court as fair and reasonable.


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BASIC INFORMATION

1. Why did I get this notice package?

You served as a Martin's Independent Distributor between April 15, 2008, and January 15, 2013, and did not have a written Distributor Agreement. You were sent this notice because you have a right to know about the settlement of this collective action lawsuit and, if you choose, to participate in the distribution of settlement proceeds. This package explains this lawsuit, the settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them. The Court in charge of the case is the United States District Court for the Middle District of Pennsylvania, and the case is known as Yarbrough et al. v. Martin's Famous Pastry Shoppe, Inc., Case No. 1:11-CV02144-JEJ. The persons who sued are called the "Plaintiffs," and Martin's is called the "Defendant." On January 15, 2013, the Federal Judge assigned to this case approved the settlement described herein as "fair and reasonable." You can view a copy of the Federal Judge's Order approving the settlement as well as a complete copy of the Settlement Agreement and the Amendment to the Settlement Agreement by logging on to http://www.iosettlement.com. If you do not have access to the Internet, you can telephone Class Counsel at (612) 252-3570 to request copies of these documents.

2. What is this lawsuit about? The Yarbrough et al. v. Martin's Famous Pastry Shoppe, Inc. lawsuit ("the Lawsuit") claimed that Martin's violated the federal Fair Labor Standards Act ("FLSA") by misclassifying the Independent Distributors as independent contractors instead of as employees and, as a result of the alleged misclassification, that Martin's failed to pay overtime premium wages and minimum wages for all hours worked by Independent Distributors. Martin's has denied all of Plaintiffs' allegations in the lawsuit and asserts that the Independent Distributors are independent contractors, not employees, including those who did not have written Distributor Agreements. Martin's has maintained throughout the Lawsuit that all of the Independent Distributors have received proper compensation, in compliance with the law.

3. Does the settlement mean that Martin's Famous Pastry Shoppe, Inc. violated the law?

No. Martin's strongly denies that it violated the law with respect to the compensation that the Independent Distributors received in connection with their sale of Martin's products. Martin's has


{A3236279:1} 3

decided that it is a better use of its resources to resolve this matter now, so that it can direct its time and resources to its business operations. 4. Why is there a settlement?

The parties have participated in extensive, lengthy, and often contentious negotiations over the course of many months. These negotiations included a formal mediation session on June 12, 2012 with a well-respected mediator. The parties also engaged in lengthy and numerous settlement negotiations outside the formal mediation session. At all times, the settlement negotiations have been adversarial, non-collusive, and at arm's length. As a result of these negotiations, the parties have agreed to settle the Lawsuit. With this agreement, the parties avoid the cost of further investigation and litigation, and ultimately, a trial. Plaintiffs' lawyers believe that the proposed settlement is fair and reasonable and in the best interest of the Class because the settlement creates a settlement fund and avoids the delay and considerable risk that no recovery would be obtained if the Lawsuit was pursued to a final judgment. Plaintiffs' lawyers believe that the settlement is fair because, for a number of reasons, they were not certain that the Class would win on any of the claims and, even if it did win, it might not get any more money than the money that Martin's has agreed to pay to settle the Lawsuit. From Martin's perspective, settling now means that it does not have to keep spending money, time, and effort defending the Lawsuit. The Federal Court, by order dated January 15, 2013, has determined that the settlement is fair and reasonable and has approved the settlement. For the purposes of settlement, everyone who fits the following description is a Class Member:

all individuals who (1) timely file consent forms to opt-in to the above-captioned action; (2) served as an Independent Distributor for Martin's Famous Pastry Shoppe, Inc. at any time between April 15, 2008, and January 15, 2013; and (3) did not have a written Distributor Agreement while serving as an Independent Distributor during this time period.

You are eligible to recover under the settlement if you received this notice directly from Martin's Famous Pastry Shoppe, Inc. or if you received this notice directly through the mail. Please call (612) 252-3570 if you have any questions regarding whether you are covered by this settlement.

THE SETTLEMENT BENEFITS – WHAT YOU GET

5. What does the settlement provide and how much will I be paid?

Martin's has agreed to pay up to $ $424,684.21 to settle the Lawsuit. From this amount, Martin's will pay approximately $2,500 for the costs of notice and settlement administration. The Court also has approved the payment from this amount of an additional $3,500 to compensate the


{A3236279:1} 4

Named Plaintiffs for their efforts related to the Lawsuit, in addition to their individual claims as Class Members. An approximate potential total of up to $239,000 is available for distribution to current and former Independent Distributors who choose to participate in the settlement. The Court has approved an additional $180,000 in attorneys' fees and litigation expenses to be paid to Baillon Thome Jozwiak Miller & Wanta LLP and Levin Fishbein Sedran & Berman as Class Counsel on behalf of all Plaintiffs' counsel. The fees/costs payment is in addition to and does not affect the $244,684.21 settlement sum available for Class Members and settlement administration. Your individual share of the net settlement proceeds will depend on how many months between April 15, 2008, and January 15, 2013, during which you served as a Martin's Independent Distributor on one or more routes without a written Distributor Agreement. If you choose to participate in the settlement and are entitled to receive a payment from the settlement fund, you will receive a check issued by Martin's Famous Pastry Shoppe, Inc. in the mail. Class Counsel and Martin's cannot provide you with tax advice, so if you have any question about any payment you receive, you should consult your own tax professional. 6. How can I receive a payment?

Class Members must complete and submit the enclosed Consent to Join Collective Action form to be eligible to receive a payment from the settlement fund. Also, Class Members who actively serve as Independent Distributors for Martin's must sign their Independent Distributor Agreement to receive the settlement payment. For those Class Members, Martin's already has provided them with a copy of their Independent Distributor Agreement. To receive payment from the settlement fund, you must sign and return to Martin's personnel the executed Independent Distributor Agreement.

7. When would I receive my payment?

Absent unforeseen delays, the Parties currently anticipate that individual distributors who elect to participate in the settlement will receive their checks in approximately [insert date].

8. What am I giving up to receive a payment?

By accepting payment, you agree that you have waived and released Martin's and all of its affiliates from all Released Claims, as defined in the Settlement Agreement. The Released Claims include any and all wage and hour and wage payment claims of whatever nature, which you may have against any of the Released Entities, whether known or unknown, as a result of actions or omissions during the period of April 15, 2008, through and including January 15, 2013, whether under federal, state, and/or local law, statute, ordinance, regulation, common law, or other source of law, including but not limited to the Fair Labor Standards Act, as amended, including any and all claims for unpaid overtime compensation, minimum wages, other wages, expenses, liquidated damages, premium pay, interest, attorneys' fees, injunctive relief, or penalties related to overtime, minimum wages, expenses, and other alleged wage and hour violations.


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9. Do I have a lawyer in this case?

The Court has designated Attorney Shawn Wanta of Baillon Thome Jozwiak & Wanta LLP and Attorney Charles E. Schaffer of Levin Fishbein Sedran & Berman as Class Counsel to represent you and other Class Members who choose to participate in the settlement. Mr. Wanta can be contacted at 222 South Ninth Street, Suite 2955, Minneapolis, Minnesota 55402, and via telephone at (612) 252-3570. Mr. Schaffer can be contacted at 510 Walnut Street, Suite 500, Philadelphia, Pennsylvania 19106, and via telephone at (215) 592-1500. You also have the right to get your own lawyer at your own expense. The Court already has approved as "fair and reasonable" a payment to Class Counsel of $180,000 for all attorneys' fees and out-of-pocket costs and expenses.

IF YOU DO NOTHING

10. What happens if I do nothing at all?

If you do nothing, you will receive no money from this settlement. Also, if you do nothing, you will not be bound by the settlement and will be able to sue Martin's regarding the issues relating to this case. You must timely submit a Consent to Join Collective Action form as described in paragraph 6 to participate in this settlement and be paid. If you are a current Independent Distributor, you must also sign and return to Martin's the fully executed Independent Distributor Agreement.

GETTING MORE INFORMATION

11. Are there more details about the settlement?

Yes. This Notice summarizes the most important aspects of the proposed settlement. You can get a copy of the entire Settlement Agreement and Amendment to the Settlement Agreement by calling Class Counsel at (612) 252-3570. Or, if you have access to the Internet, you can log on to www.iosettlement.com. You also may read the Amended Complaint and other pleadings in the Lawsuit, including the Settlement Agreement and Release and Amendment to the Settlement Agreement, during regular office hours at the Office of the Clerk of the Court, United States Courthouse, United States District Court, Middle District of Pennsylvania, 228 Walnut Street, Harrisburg, PA 17108-9998 (refer to Case No. 1:11-CV-02144-JEJ). PLEASE DO NOT TELEPHONE THE COURT, THE CLERK OF COURT, OR MARTIN'S FAMOUS PASTRY SHOPPE, INC. ABOUT THIS SETTLEMENT. Date: , 2013 THE HONORABLE JOHN E. JONES, III Judge, United States District Court for the

Middle District of Pennsylvania


EXHIBIT C


{A3236576:1}

CONSENT TO JOIN COLLECTIVE ACTION Pursuant to Fair Labor Standards Act, 29 U.S.C. § 216(b)

Yarbrough et al. v. Martin’s Famous Pastry Shoppe, Inc., Case No. 1:11-CV-02144-JEJ

United States District Court, Middle District of Pennsylvania

To participate in the settlement in the above-referenced action, you must do both 1 and 2:

1. Complete this Consent to Join Collective Action form and mail it so that it is postmarked no later than [insert time deadline] to: [INSERT SETTLEMENT ADMINISTRATOR'S NAME/ADDRESS].

2. If you currently are an Independent Distributor for Martin's, you must sign your Independent Distributor Agreement and return it to your Warehouse Manager no later than [insert time deadline]. Copies of your Independent Distributor Agreement are available from your Warehouse Manager.

Your Name: (First, Middle, Last) Address: Street or P.O. Box City State Zip Code Social Security No:

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Dates of Service as Martin’s Independent Distributor:1

____

Phone No: E-Mail: ____

1. I have read and understand the notice and certify that I served as an Independent Distributor for Martin's Famous Pastry Shoppe, Inc. ("Martin's") without a written Distributor Agreement between April 15, 2008, and January 15, 2013. I consent and agree to settle my claims alleging unpaid overtime work and/or minimum wages in connection with the above-referenced lawsuit.

2. I understand that this lawsuit is brought pursuant to the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. I hereby consent, agree, and opt-in to become a party to the settlement of the above-referenced lawsuit, and I will be bound by any settlement of this action or any judgment of the Court.

3. I certify that the information submitted by me is true and correct, subject to prosecution for perjury.

Date Signature If you move after submitting this Claim Form but before receiving money from the settlement, please send a letter to [insert name/address of settlement administrator] to ensure that the settlement check is forwarded to you.

1 Please answer this question to the best of your recollection. In accordance with the Settlement Agreement, Martin's Famous Pastry Shoppe, Inc.'s records will determine the allocation of payments under the Agreement.


exhibit a - baillon thome jozwiak & wanta, llp · 2020-01-22 · adam r. long 100 pine street,...

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