Free Other Notice - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO: UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA KAYE K. HUTTON, as an individual and as representative of a class consisting of others similarly situated, v. Plaintiff, No. CV2007-2262-PHX-ROS NOTICE OF PENDENCY AND SETTLEMENT OF COLLECTIVE ACTION FOR UNPAID OVERTIME COMPENSATION (Assigned to the Honorable Roslyn O. Silver)

BANK OF AMERICA, N.A., Defendant.

ALL PERSONS WHO WORKED AS A PREMIER CLIENT MANAGER OR SMALL BUSINESS CLIENT MANAGER IN THE STATE OF ARIZONA AND OPTED INTO THIS ACTION. PLEASE READ THIS NOTICE CAREFULLY IT MAY AFFECT YOUR LEGAL RIGHTS I. INTRODUCTION

The purpose of this NOTICE OF PENDENCY AND SETTLEMENT OF COLLECTIVE ACTION FOR UNPAID OVERTIME COMPENSATION ("NOTICE") is to inform you that Bank of America, N.A. ("Bank" or "Bank of America") has agreed to settle an overtime pay lawsuit in which the named plaintiff asserted that the Bank violated Arizona and federal law by failing to pay overtime compensation to Small Business Client Managers and Premier Client Managers who were employed by Bank of America in Arizona during the relevant time period. You previously received notice of this action and filed consent to become a party in this action as a collective member. Therefore, you are receiving this Notice. PLEASE NOTE THAT BECAUSE YOU ARE A COLLECTIVE MEMBER, YOU MAY BE ENTITLED TO SHARE IN THE PROCEEDS OF THE PROPOSED SETTLEMENT DESCRIBED IN THIS NOTICE. IN ORDER TO SHARE IN SUCH PROCEEDS, HOWEVER, YOU MUST SUBMIT A VALID AND TIMELY RELEASE TO THE CLAIMS ADMINISTRATOR BY THE CLAIMS DEADLINE SET FORTH BELOW. THE RELEASE FOR YOU TO RETURN IS INCLUDED IN THIS NOTICE. IN ORDER TO PROTECT YOUR RIGHTS, YOU SHOULD BE AWARE OF THE FOLLOWING IMPORTANT DATES: CLAIMS DEADLINE: To claim your share of the settlement amount, you must submit a valid Claim for Wages and Release ("Release"), which is included with this Notice, to the Claims Administrator address provided in Section V of this
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Document 332-3

Filed 06/01/2007

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Notice no later than __________, 2007. OBJECTIONS TO THE SETTLEMENT: If you wish to object to the settlement, your written objection must be received by _____________, 2007. Each of these important dates is further described below. II. DESCRIPTION OF THE LAWSUIT In October of 2003, Kaye K. Hutton filed a lawsuit challenging the Bank's classification of certain employees as "exempt" from overtime requirements under federal wage and hour laws and claiming the employees were not properly paid under state and federal law for all hours worked. This lawsuit, Hutton v. Bank of America, N.A., is now pending in the United States District Court for the District of Arizona under Cause No. CV2003-2262-PHX-ROS. The plaintiff asserted that Bank of America violated federal and Arizona wage and hour laws by failing to pay overtime for all hours worked in excess of forty (40) per week. The plaintiff is pursuing this as a collective action, and is seeking overtime pay for unpaid hours worked in excess of forty (40) per week and reasonable attorneys' fees and costs for herself and on behalf of the collective. Bank of America denied and continues to deny the allegations in the plaintiff's complaint, and believes it has good defenses to the claims asserted. The Bank contends that its policies and practices are in compliance with all applicable laws and with good business practices. However, to avoid costly, disruptive and time-consuming litigation, and without admitting any wrongdoing or liability, the Bank has negotiated and agreed to a settlement of the action. III. SUMMARY OF THE PROPOSED SETTLEMENT A. Payment of the Settlement Amount.

The parties have entered into a Collective Settlement Agreement setting forth the terms of the proposed settlement. Pursuant to the Collective Settlement Agreement, Bank of America has agreed to pay up to Two Million Five Hundred Thousand Dollars ($2,500,000.00) (the "Settlement Amount") to resolve all wage claims, including payment of claims concerning overtime wages or the computation of overtime compensation, for work performed by collective members in Arizona from three (3) years prior to their filing of consent to become a party to present, for payment of an enhancement to the plaintiff, for payment of reasonable attorneys' fees, expenses, and costs, and for payment to a claims administrator for services rendered in connection with administering the settlement. After payment of an enhancement in the amount of $75,000.00 to the named plaintiff, Kaye Hutton, in recognition of the risks and burdens borne by her in acting as a collective representative, payment of reasonable attorneys' fees, expenses and costs, and payment to a claims administrator from the Settlement Amount, there will be a "Net Settlement Amount" of up to One Million Two Hundred Fifty One Thousand One Hundred Fifty Dollars ($1,251,150.00) available for distribution to settling collective members. The Net Settlement Amount will be distributed to collective members who submit a valid and timely Release as described in Section V below. The amounts paid to collective members who submit valid and timely Releases will be made based on the allocation formula described in Section IV below.

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B.

Payment of Attorneys' Fees and Costs

Under the terms of the proposed Collective Settlement Agreement, and pursuant to law, Collective Counsel will request that the Court approve an award of their reasonable attorneys' fees and costs. As compensation for their reasonable attorneys' fees and costs incurred in this matter, Collective Counsel will request that the Court approve payment of Seven Hundred Thirty Two Thousand Six Hundred Dollars ($732,600.00) as their attorneys' fees, plus an additional amount of Three Hundred Thousand Dollars ($300,000.00) that does not pass through any members of the Settling Collective as attorneys' fees (collectively "Attorneys' Fees"). Collective Counsel will also request that the Court approve One Hundred Thirty Five Thousand Dollars ($135,000.00) as reimbursement for the litigation expenses and costs advanced in this matter, including expenses of expert witnesses ("Attorneys' Costs"). Attorneys' Fees and Attorneys' Costs will be paid from the Settlement Amount. C. Binding Effect On All Collective Members

If final approval is granted by the Court, the Collective Settlement Agreement will be binding on all settling collective members and will bar any settling collective member from bringing any wage claims under state or federal law, including claims concerning overtime wages or the computation of overtime compensation, for work performed for Bank of America in Arizona in the covered positions to the date of signature on the Release. The very brief and general summary of the Collective Settlement Agreement in this NOTICE does not include all of the terms and conditions of the proposed settlement. The only complete statement of the terms of the proposed settlement is found in the actual Collective Settlement Agreement. Copies of the proposed settlement agreement are available for inspection or copying at your expense from Collective Counsel. You may also inspect the Court files at the Office of the Clerk of the United States District Court for the District of Arizona, located at 401 W. Washington, Phoenix, Arizona 85003. PLEASE DO NOT TELEPHONE OR CONTACT THE COURT. IV. ALLOCATION FORMULA The Net Settlement Amount of One Million Two Hundred Fifty One Thousand One Hundred Fifty Dollars ($1,251,150.00) will be distributed to the collective members as overtime wages in accordance with the formula set forth below . The total value of each settling collective member's claim will be paid to the collective member (or to his/her representative if the member is deceased) who returns a valid and timely release as wages without deductions from the Net Settlement Amount for the employer share of any FICA and other employer tax liability required by law, but with deductions from the Net Settlement Amount for employee FICA and any other employee withholdings applicable to payment of wages. The Bank shall pay the employer share of any FICA and other employer tax liability required by law without diminishing the Net Settlement Amount. The Net Settlement Amount of One Million Two Hundred Fifty One Thousand One Hundred Fifty Dollars ($1,251,150.00) shall be distributed according to the following formula for each collective member who timely returns a valid release to the Claims Administrator: for each week between the date of three (3) years prior to your submissions and filing of consent to become a party to this lawsuit (but in no event earlier than October 31, 2000), and June 15, 2005, that you were employed by the Bank
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as a client manager in Arizona, $55.00 for each overtime hour calculated as follows: (a) twelve (12) overtime hours per work week during the pretime card period of 10/31/2000 through 3/1/2002; (b) seven (7) overtime hours per work week during the time card period of 3/1/2002 - 6/15/2005. Each work year shall be deemed to include Forty Two and One Half (42.5) work weeks. If the total value of all claims exceeds the Net Settlement Amount, a percentage of each collective member's claim shall be paid which is equal to the percentage the Net Settlement Amount is of the total value of all claims. Should a collective member fail to submit a valid and timely Release, their portion of the Net Settlement Amount shall remain with the Bank; however, such collective member shall still be bound by the Collective Settlement Agreement. V. CLAIM FOR OVERTIME WAGES AND RELEASE FORM All settling collective members who wish to participate in the settlement must complete and sign the Release at the end of this Notice. The fully executed Release must be returned to the following: BofA/Kaye Hutton Settlement Claims Administrator P.O. Box 6809 Portland, Oregon 97228-6809 and postmarked no later than _____________, 2007 to receive any payment. Settling Collective members signing the Release will not be permitted to assert any state law claims under Article 7 of Title 23 of the Arizona Revised Statutes or federal law claims under the Fair Labor Standards Act against Bank of America arising prior to the date of execution of the Release (except for the payroll period within which current associates sign the Release). If approved by the Court, the Collective Settlement Agreement will result in the dismissal of your claims in the lawsuit with prejudice, even if you do not timely return the Release. VI. SETTLEMENT CHECKS After all timely submitted Releases are received and reviewed and the Court grants final approval of the Collective Settlement Agreement, the Claims Administrator will mail to all of those who submitted valid and timely Releases, a check in the amount of the settling collective member's share of the Net Settlement Amount. This check will be in full settlement of any and all claims known or unknown concerning overtime pay and related wage and hour claims, through the date of the signing of the Release. Appropriate FICA and other withholding applicable to payment of wages will be withheld from your settlement check, and you will receive an itemized listing of these deductions as with a payroll check and a W-2 form, Whether or not you cash the settlement check, the settlement will be binding. If you do not cash your check within 180 days following the issuance of the check, your check will be void. In any event, if you do not cash your check, you will be deemed to have waived irrevocably any right in or claim to your settlement share. The back of each check issued to settling collective members will state, "My signature constitutes a full and complete release of Bank of America, N.A. and its affiliates by me for any and all claims of unpaid wages, including overtime, meal or rest period penalties, interest, and other wage claims or penalties under federal and state law while I was employed in Arizona in the Covered Position up to the date of execution of
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this Release as well as acknowledgement that by accepting this check I have been paid in full for all wages due and owing during my employment with Bank prior to the date of signing the release." VII. OBJECTIONS TO THE PROPOSED SETTLEMENT If you believe that the proposed settlement should not be finally approved by the Court for any reason, you may object to the proposed Collective Settlement Agreement. If you want to object to the proposed Collective Settlement Agreement, you must file an objection in writing to Collective Counsel. To be timely, your objection must be received on or before _____________, 2007. You also may appear at the hearing to be held on July 13, 2007, at 2:00 p.m., at the United States District Court for the District of Arizona Courthouse, Courtroom 604, 401 W. Washington, Phoenix, Arizona 85003, to have your objection considered. Any attorney who will represent an individual objecting to the Collective Settlement Agreement must file a notice of appearance with the Court and serve copies of that appearance on counsel for all parties on or before July 6, 2007. All objections or other correspondence must state the name and number of the case, which is Hutton v. Bank of America, NA., Cause No. CV2003-2262-PHX-ROS. VIII. FURTHER INFORMATION PLEASE DO NOT CALL OR CONTACT THE COURT. If you have any questions about the Collective Settlement Agreement, or about completing the Release, or if you would like a copy of the settlement agreement you may contact Collective Counsel or the Claims Administrator. You may contact Collective Counsel at the following telephone numbers: Rogers & Theobald, attorney Lydia Jones or Jennifer LeFere, 602-852-5550, or Jennings, Strouss & Salmon, attorney Michael J. O'Connor, 602-262-5889. Collective members or their counsel may also examine the file of this case at the Office of the Clerk of the United States District Court for the District of Arizona Courthouse, 401 W. Washington, Phoenix, Arizona 85003. IX. IF THE SETTLEMENT AGREEMENT IS NOT APPROVED If the Collective Settlement Agreement is not approved by the Court, or if any of its conditions are not satisfied, the conditional settlement will be voided, no money will be paid, and the case will revert to litigation. However, if that happens there is no assurance: (a) that any decision at trial will be in favor of collective members; (b) that a favorable verdict or judgment, if any, would be as favorable to the Collective members as the settlement; or (c) that any such favorable verdict or judgment would be upheld if any appeal was filed. X. NO RETALIATION OR DISCRIMINATION Arizona and federal law prohibit Bank of America from discharging you or in any other manner discriminating against you because you have exercised your legal rights to participate in this settlement. XI. NO OPINION EXPRESSED AS TO THE MERITS OF THE CASE On ____________, 2007, the Court approved this Notice of Pendency and Settlement of Collective Action for Unpaid Overtime Compensation. However, the Court expressed no opinion regarding the merits of the plaintiff's claims or Bank of America's defenses or potential liability.
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XII. ADDRESS CHANGES It is your responsibility to keep Collective Counsel and the Claims Administrator apprised of your current address. Please sign and mail any change of address along with your Social Security number, date of birth, former address and new address to Collective Counsel or the Claims Administrator.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPENSATION. I, _{name} TO:

CLAIM FOR WAGES AND RELEASE Hutton et al v. Bank of America
CV2003-2262-PHX-ROS

[insert opt in name and address]

IF YOU WANT TO RECEIVE YOUR SHARE OF THIS COLLECTIVE ACTION SETTLEMENT, COMPLETE THIS CLAIM FOR WAGES AND RELEASE IN ITS ENTIRETY AND MAIL IT TO THE CLAIMS ADMINISTRATOR LISTED BELOW. TO BE VALID AND TIMELY, THIS CLAIM FOR WAGES AND RELEASEMUST BE POSTMARKED BY , 2007 CLAIM FOR WAGES ,hereby make claim for payment of overtime wages I allege are due

me pursuant to the COLLECTIVE SETTLEMENT AGREEMENT BETWEEN PLAINTIFFS AND DEFENDANT BANK OF AMERICA (the "Settlement Agreement") as summarized in the foregoing NOTICE OF PENDENCY AND SETTLEMENT OF COLLECTIVE ACTION FOR UNPAID OVERTIME

RELEASE As consideration for submission of my claim and issuance of a check to me in accordance with the Settlement Agreement, I individually and on behalf of my successors, assigns and representatives, release and discharge Bank of America, N. A., and its attorneys and past, present and future divisions, affiliates, predecessors, successors, shareholders, officers, directors, employees, agents, trustees,

representatives, administrators, fiduciaries, assigns, subrogees, executors, partners, parents, subsidiaries, and privies ("the Releasees") from any and all claims, debts, liabilities, demands, obligations, guarantees, costs, expenses, attorneys' fees, damages, actions or causes of action whatever kind or nature, whether known or unknown, arising out of, related to or which were or could have been asserted in this action, entitled
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Hutton et al. v. Bank of America, N.A., Cause No. CV2003-2262-PHX-ROS as of the date of the execution of the Release. Such released claims are limited to claims under state and federal law for unpaid wages, including any claim for overtime, meal or rest period penalties, interest, and punitive and/or exemplary damages in connection with any of the foregoing. RELEASE executed on this of , 2007, in .

(Day)

(Month)

(City)

(State)

(Signature) THIS CLAIM FOR WAGES AND RELEASE MUST BE COMPLETED AND MAILED TO THE CLAIMS ADMINISTRATOR LISTED BELOW AND POSTMARKED NO LATER THAN ___________________. BofA/Kaye Hutton Settlement Claims Administrator P.O. Box 6809 Portland, Oregon 97228-6809

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