Amador v. The Brickman Group Settlement

Jonathan Amador v. The Brickman Group LTD. LLC
United States District Court, Middle District of Pennsylvania, No: 3:13-CV-02529

Frequently Asked Questions

Following is a list of frequently asked questions about this settlement. To view the answer to a question, please click on the question from the list below. The answers to these questions will be updated periodically to reflect the current status of the settlement.

  1. What are the terms of the Settlement FOR OPT-IN PLAINTIFFS and PA Class Members?

    As set forth in the Court-approved Settlement Agreement (the “Agreement”), which is available for your review at the Court at 228 Walnut Street, Harrisburg, Pennsylvania, 17101, Brickman agreed to pay up to $6,950,000.00 (“Maximum Gross Settlement Fund Amount”) in this case. Under the Agreement, all individuals who had filed a Consent to Join (“Opt-In Plaintiffs”) this case before the settlement, as well as all current and former employees who worked for Brickman in Pennsylvania and who, at any time between October 8, 2009 and June 8, 2014, were paid a salary, but worked under a pay plan in which they were eligible to receive “fluctuating workweek”-type half-time overtime pay for hours worked over 40 in a workweek (meaning at a rate that decreased with each overtime hour worked, rather than at time-and-a-half their hourly rate), including but not limited to salaried landscape/crew/irrigation Supervisors and those in similarly titled positions, are referred to as “Group 1.” There are approximately 476 members of Group 1.

    Individuals who did not previously submit a Consent to Join this case before the settlement, and who did not work in Pennsylvania, but who worked for Brickman and who, at any time between October 8, 2010 and June 8, 2014, were paid a salary, but worked under a pay plan in which they were eligible to receive “fluctuating workweek”-type half-time overtime pay for hours worked over 40 in a workweek (meaning at a rate that decreased with each overtime hour worked, rather than at time-and-a-half their hourly rate) for hours worked over 40 in a workweek, are referred to as “Group 2.” There are approximately 839 members of Group 2. Members of Group 2 will also be eligible to participate in the Settlement if they submit a Claim Form by June 9, 2017.

    Because you filed a Consent to Join this case before settlement or you worked for Brickman in Pennsylvania, you are a member of “Group 1.” You do not need to submit a Claim Form to participate in the Settlement, and you will receive a payment based on the formula below if the Court grants final approval to the Settlement, unless you exclude yourself from the Settlement.

    The following is a summary of the primary settlement terms as they affect you:

    1. Brickman has agreed to pay $3,250,000 to Group 1. Deductions from this amount will be made for attorneys’ fees and costs awarded to Class Counsel (see below); settlement administration costs allocated to Group 1 not to exceed $17,470; and service awards in the amount of $5,000 to Named Plaintiff Amador and $1,000 to each of Named Plaintiffs Bratton, Busse, Pullum, Migdol, and Gonzalez for their service to the Class (“Net Settlement Fund for Group 1”), as well as applicable employer and employee payroll taxes as described below. Deductions for Class Counsel’s costs, settlement administration costs and service awards shall be made on a pro rata basis with the amounts made available to Group 2.
    2. Members of Group 2 who are eligible to receive a Settlement Award will receive their Settlement Award from a separate fund allocated for Group 2 Members, and will not receive any portion of the Net Settlement Fund for Group 1.
    3. Each Eligible Group 1 Member will receive a $150 minimum payment. The $150 per person minimum payment will be deducted first from the total Net Settlement Fund for Group 1. Any additional pro rata settlement distribution you may receive will be calculated using the following formula:
      1. Each Eligible Group 1 Member will receive settlement shares which equal the total overtime pay he/she received between the longer of (a) his/her individual maximum state law statute of limitations; or (b) three years plus any applicable period during which his/her FLSA claims were tolled prior to the date that he/she filed his/her Opt-In Consent Form, and June 8, 2014 in weeks when he/she was paid a salary, but worked under a pay plan in which he/she was eligible to receive ‘fluctuating workweek’-type half-time overtime pay for hours worked over 40 in a workweek;
      2. The total number of settlement shares for all Eligible Group 1 Members will be added together and the resulting sum will be divided into the Net Settlement Fund for Group 1 (less the allocation of $150 per person) to reach a per share dollar figure. That figure will then be multiplied by each Eligible Group 1 Member’s number of settlement shares, and, if applicable, added to the $150 set aside to determine the Eligible Group 1 Member’s Settlement Award.
    4. Each Settlement Award will be separated into two equal amounts: fifty percent (50%) shall be allocated to the claims asserted in the lawsuit for unpaid overtime wages, and fifty percent (50%) shall be allocated to the claims asserted in the lawsuit for liquidated damages. The portion allocated to claims for unpaid overtime and other wage-related damages will be subject to all required employee and employer-paid payroll taxes and deductions. The portion allocated to liquidated damages shall be characterized as non-wage income to the recipient and you will be responsible for any applicable taxes on this portion.
    5. In exchange for your Settlement Award, each Group 1 Member has agreed to the following release of claims:
      any and all claims, obligations, demands, actions, rights, causes of action and liabilities, whether known or unknown, and specifically including but not limited to unjust enrichment claims, against The Brickman Group Ltd. LLC, and its past, present and future parent companies, subsidiaries, affiliates, divisions, agents, employees, owners, members, officers, directors, partners, investors, legal representatives, accountants, trustees, executors, administrators, real or alleged alter egos, predecessors, successors, transferees, assigns, and insurers (“Releasees”) that were or could have been asserted in the Complaint or Amended Complaint based on the facts alleged for alleged unpaid wages, overtime compensation, liquidated or other damages, unpaid costs, penalties (including late payment penalties), interest, attorneys’ fees, litigation costs, restitution or other compensation and relief arising under the Fair Labor Standards Act (“FLSA”) for the time period between October 8, 2010 and June 8, 2014 in weeks when they were paid a salary, but worked under a pay plan in which they were eligible to receive ‘fluctuating workweek’-type half-time overtime pay for hours worked over 40 in a workweek, and arising under state statutes, regulations, or common law beginning from the longest applicable statute of limitations (inclusive of any earlier tolling periods agreed upon in the Action) for all states in which a State Settlement Class Member worked dating back from October 8, 2013) through June 8, 2014 in weeks when they were paid a salary, but worked under a pay plan in which they were eligible to receive ‘fluctuating workweek’-type half-time overtime pay for hours worked over 40 in a workweek.
  2. What are the terms of the Settlement FOR GROUP 2 CLASS MEMBERS?

    As set forth in the Court-approved Settlement Agreement (the “Agreement”), which is available for your review at the Court at 228 Walnut Street, Harrisburg, Pennsylvania, 17101, Brickman agreed to pay up to $6,950,000.00 (“Maximum Gross Settlement Fund Amount”) in this case. Under the Agreement, approximately 476 individuals who filed Consents to join before the settlement and individuals who performed work in Pennsylvania are referred to as “Group 1.” Because you did not file a Consent to join before settlement, but you worked for Brickman in the United States and, at any time between October 8, 2010 and June 8, 2014, were paid a salary, but worked under a pay plan in which they were eligible to receive ‘fluctuating workweek’-type half-time overtime pay for hours worked over 40 in a workweek (meaning at a rate that decreased with each overtime hour worked, rather than at time-and-a-half their hourly rate), you are referred to as a member of “Group 2.” There are approximately 839 members of Group 2.

    As a member of Group 2, in order to be eligible to receive a Settlement Award, you must submit a signed copy of the enclosed Claim Form to the Settlement Administrator postmarked by June 9, 2017. You may return the signed Claim Form by mail, email or fax and you may also complete and execute a copy of the Claim Form here or by contacting the Claims Administrator using the contact information below:

    Amador v. Brickman Overtime Settlement
    c/o Dahl Administration
    PO Box 3614
    Minneapolis, MN 55403-0614
    Toll-Free Telephone Number: (888) 755-9508
    Facsimile Number: 952-955-4589
    Email Address: info@AmadorvBrickmanSettlement.com

    The following is a summary of the primary settlement terms as they affect you:

    1. Brickman has agreed to pay a maximum of $3,700,000 to Group 2 (the “Group 2 Maximum Possible Gross Settlement Fund”). Brickman will only pay the portion of the Maximum Possible Gross Settlement Fund attributable to the percentage of Group 2 Members who timely submit a Claim Form (“Group 2 Calculated Gross Settlement Fund”). The Group 2 Calculated Gross Settlement Fund shall be determined by multiplying the percentage of Group 2 members who timely submit a Claim Form (“Eligible Group 2 Members”) by the Group 2 Gross Settlement Fund. By way of example, if thirty percent (30%) of Group 2 Members become Eligible Group 2 Members, the Group 2 Calculated Gross Settlement Fund will be $1,110,000.00.
    2. Deductions from the Group 2 Calculated Gross Settlement Fund will be made for attorneys’ fees and costs awarded to Class Counsel (see below); settlement administration costs allocated to Group 2 not to exceed $17,470; service awards in the amount of $5,000 to Named Plaintiff Amador and $1,000 to each of Named Plaintiffs Bratton, Busse, Pullum, Migdol, and Gonzalez for their service to the Class (“Net Settlement Fund for Group 2”), as well as applicable employer and employee payroll taxes as described below. Deductions for Class Counsel’s costs, settlement administration costs and service awards shall be made on a pro rata basis with the amounts made available to Group 1.
    3. Members of Group 1 who are eligible to receive a Settlement Award will receive their Settlement Award from a separate non-reversionary fund allocated for Group 1 Members, and will not receive any portion of the Net Settlement Fund for Group 2.
    4. Each Eligible Group 2 Member who completes, signs and returns a Claim Form by June 9, 2017, will receive a minimum payment. Each Eligible Group 2 Member who completes and returns a Claim Form by June 9, 2017 may also receive an additional pro rata settlement distribution calculated using the following formula:
      1. Each Eligible Group 2 Member will be allocated settlement shares which equal the total overtime pay he/she received at any time between the longer of (a) his/her maximum applicable state law statute of limitations for applicable wage laws (exclusive of unjust enrichment); or (b) three years preceding June 8, 2014, and June 8, 2014, in which he/she was paid a salary, but worked under a pay plan in which he/she was eligible to receive ‘fluctuating workweek’-type half-time overtime pay for hours worked over 40 in a workweek.
      2. The total number of settlement shares allocated to all Eligible Group 2 Members will be added together and the resulting sum will be divided into the Net Settlement Fund for Group 2 (less the minimum payment allocation) to reach a per share dollar figure. That figure will then be multiplied by each Group 2 Member’s number of settlement shares, and, if applicable, added to the minimum payment to determine each Eligible Group 2 Member’s potential Settlement Award.
      3. Each Eligible Group 2 Member who completes, signs and returns a Claim Form by June 9, 2017 will receive their pro rata portion of the Net Settlement Fund for Group 2. Brickman will not pay any amounts to any Group 2 Member unless he/she completes, signs and returns a Claim Form by June 9, 2017.
    5. Each Settlement Award will be separated into two equal amounts: fifty percent (50%) shall be allocated to the claims asserted in the lawsuit for unpaid overtime wages, and fifty percent (50%) shall be allocated to the claims asserted in the lawsuit for liquidated damages. The portion allocated to claims for unpaid overtime and other wage-related damages will be subject to all required employee and employer-paid payroll taxes and deductions. The portion allocated to liquidated damages shall be characterized as non-wage income to the recipient and you will be responsible for any applicable taxes on this portion.
    6. Each Group 2 Member who completes, signs and returns a Claim Form by June 9, 2017 has agreed to the following release of claims:
      any and all claims, obligations, demands, actions, rights, causes of action and liabilities, whether known or unknown, and specifically including but not limited to unjust enrichment claims, against The Brickman Group Ltd. LLC, and its past, present and future parent companies, subsidiaries, affiliates, divisions, agents, employees, owners, members, officers, directors, partners, investors, legal representatives, accountants, trustees, executors, administrators, real or alleged alter egos, predecessors, successors, transferees, assigns, and insurers (“Releasees”) that were or could have been asserted in the Complaint or Amended Complaint based on the facts alleged for alleged unpaid wages, overtime compensation, liquidated or other damages, unpaid costs, penalties (including late payment penalties), interest, attorneys’ fees, litigation costs, restitution or other compensation and relief arising under the Fair Labor Standards Act (“FLSA”) for the time period between October 8, 2010 and June 8, 2014 in weeks when they were paid a salary, but worked under a pay plan in which they were eligible to receive ‘fluctuating workweek’-type half-time overtime pay for hours worked over 40 in a workweek, and arising under state statutes, regulations, or common law beginning from the longest applicable statute of limitations (inclusive of any earlier tolling periods agreed upon in the Action) for all states in which a State Settlement Class Member worked dating back from October 8, 2013) through June 8, 2014 in weeks when they were paid a salary, but worked under a pay plan in which they were eligible to receive ‘fluctuating workweek’-type half-time overtime pay for hours worked over 40 in a workweek.
    7. Upon Final Approval by the Court, each Group 2 Member shall be deemed to release all claims in paragraph 6 above, but shall not release any FLSA claims unless they complete and return a Claim Form by June 9, 2017. The release in paragraph 6 shall not apply to Group 2 Members who either (a) timely submit a request for exclusion; or (b) who are identified by Settlement Administrator as Group 2 Members whose notice is issued during the notice period and returned as undeliverable after appropriate skip traces have been performed by the Settlement Administrator.

    In the event that the combined total of the Group 1 Gross Settlement Fund and the Group 2 Calculated Gross Settlement Fund (“the Gross Fund Total”) exceeds four million four hundred thousand dollars ($4,400,000.00), Defendant shall have the unilateral right, but not the obligation, to void the Settlement Agreement with respect to Group 2, and if so voided each Group 2 member who timely submitted a Claim Form and did not submit a notice of intent to opt-out will be provided a follow-up notice with information about resumption of the litigation for purposes of Group 2 as if no settlement occurred.

  3. What are my rights – GROUP 1 CLASS MEMBERS?
    • Because you are an Opt-In Plaintiff or a Pennsylvania Class Member, assuming the Court grants final approval and the Settlement Agreement is not voided, you will automatically receive money from the Settlement. You do not have to do anything to receive your share of the settlement proceeds, and there is no Claim Form to submit because you are already recognized as having made a claim.
    • If you do not wish to participate or be bound by the Settlement, you must submit a written exclusion from the settlement (“opt-out”), postmarked by May 10, 2017. The written request for exclusion from the settlement must contain your full name, address, and telephone number, and must be signed individually by you. No opt-out request may be made on behalf of a group. The opt-out request must be sent by mail to the Settlement Administrator at: Brickman Overtime Settlement, c/o Dahl Administration, PO Box 3614, Minneapolis, MN 55403-0614. Any person who requests exclusion (opts out) of the settlement will not be entitled to any potential Settlement Award and will not be bound by the Settlement Agreement or have any right to object, appeal or comment thereon.
    • If you wish to object to the Settlement, you must submit an objection, postmarked by May 10, 2017 stating why you object to the settlement. Your objection must state your full name, address, telephone number, and email address (if applicable) and must be signed by you. Any objection should be mailed to the Settlement Administrator at: Brickman Overtime Settlement, c/o Dahl Administration, PO Box 3614, Minneapolis, MN 55403-0614. If you submit a written objection, you may also, if you wish, appear at the Final Approval Hearing set for July 21, 2017, at 9:30 a.m., before the Honorable Malachy E. Mannion of the United States District Court for the Middle District of Pennsylvania, located at 228 Walnut Street, Harrisburg, Pennsylvania, 17101, to discuss your objection with the Court and the parties to the Lawsuit.
  4. What are my rights – GROUP 2 CLASS MEMBERS?

    In order to participate in the Settlement and potentially receive a Settlement Award, you must submit a Claim by June 9, 2017. You may also submit the Claim Form by mail, email or fax postmarked by June 9, 2017 to:

    Brickman Overtime Settlement
    c/o Dahl Administration
    PO Box 3614
    Minneapolis, MN 55403-0614
    Toll-Free Telephone Number: (888) 755-9508
    Facsimile Number: 952-955-4589
    Email Address: info@AmadorvBrickmanSettlement.com

    If you do not wish to participate or be bound by the Settlement, you must submit a written exclusion from the settlement (“opt-out”), postmarked by May 10, 2017. The written request for exclusion from the settlement must contain your full name, address, and telephone number, and must be signed individually by you. No opt-out request may be made on behalf of a group. The opt-out request must be sent by mail to the Settlement Administrator at: Brickman Overtime Settlement, c/o Dahl Administration, PO Box 3614, Minneapolis, MN 55403-0614. Any person who requests exclusion (opts out) of the settlement will not be entitled to any potential Settlement Award and will not be bound by the Settlement Agreement or have any right to object, appeal or comment thereon.

    If you wish to object to the Settlement, you must submit an objection, postmarked by May 10, 2017, stating why you object to the settlement. Your objection must state your full name, address, telephone number, and email address (if applicable) and must be signed by you. Any objection should be mailed to the Settlement Administrator at: Brickman Overtime Settlement, c/o Dahl Administration, PO Box 3614, Minneapolis, MN 55403-0614. If you submit a written objection, you may also, if you wish, appear at the Final Approval Hearing set for July 21, 2017 at 9:30 a.m. before the Honorable Malachy E. Mannion of the United States District Court for the Middle District of Pennsylvania, located at 228 Walnut Street, Harrisburg, Pennsylvania, 17101, to discuss your objection with the Court and the parties to the Lawsuit.

  5. Can I be retaliated against for participating in this lawsuit?

    Federal law prohibits Brickman from terminating you, retaliating against you, or in any other manner discriminating against you because you participate in this lawsuit and settlement.

  6. How will the attorneys for the Class be paid?

    You do not have to pay the attorneys who represent the Class separately. Plaintiffs’ Counsel will be paid from the settlement in the amount of up to (a) One Million Eighty-Three Thousand Three Hundred and Thirty Three Dollars ($1,083,333.00) (which is one third of the Group 1 Gross Settlement Amount); and (b) the amount equal to up to one-third of the Group 2 Calculated Gross Settlement Fund, plus their out-of-pocket costs, not to exceed Sixty-Five Thousand Dollars ($65,000.00). Class Counsel will file with the Court a Motion for Attorneys’ Fees and Costs. The actual amount awarded will be determined by the Court. The Court will hold a hearing on that Motion on the same day as the Final Settlement Fairness Hearing, on July 21, 2017, at 9:30 a.m.

  7. What if I have additional questions?

    If you have any questions regarding the terms of this settlement or your individual recovery, contact the Claims Administrator:

    Brickman Overtime Settlement
    c/o Dahl Administration
    PO Box 3614
    Minneapolis, MN 55403-0614
    Toll-Free Telephone Number: (888) 755-9508
    Facsimile Number: 952-955-4589
    Email Address: info@AmadorvBrickmanSettlement.com

    If you have any legal questions about the settlement relating to the lawsuit itself, contact Plaintiffs’ Counsel listed below:

    Shanon J. Carson
    Sarah R. Schalman-Bergen
    Alexandra K. Piazza
    BERGER & MONTAGUE, P.C.
    1622 Locust Street
    Philadelphia, PA 19103
    Telephone: (215) 875-3033
    C. Andrew Head
    HEAD LAW FIRM, LLC
    White Provision, Ste. 305
    1170 Howell Mill Rd., NW
    Atlanta, GA 30318
    Telephone: (404) 924-4151 x108

    THIS WEBSITE AND ITS CONTENTS HAVE BEEN AUTHORIZED BY THE U.S. DISTRICT COURT, THE HONORABLE MALACHY E. MANNION, DISTRICT JUDGE. THE COURT HAS EXPRESSED NO OPINION REGARDING THE MERITS OF THE PARTIES’ CLAIMS OR DEFENSES.