Illinois State Class Notice

NOTICE OF SETTLEMENT FOR
MEMBERS OF THE ILLINOIS SETTLEMENT CLASS
CIRCUIT COURT OF COOK COUNTY,
ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION
JENNIFER HILL, MATTHEW KNIGHTON, AND ANDRE MOORE v. FOOT LOCKER, INC., DOES 1-10,
No. 08-CH-39148
OFFICIAL COURT NOTICE
IMPORTANT – PLEASE READ CAREFULLY
YOU MAY BE ENTITLED TO RECEIVE MONEY FROM THIS CLASS ACTION SETTLEMENT AND YOUR
RIGHTS WILL BE AFFECTED BY IT. IF SO, YOU ARE NOT REQUIRED TO TAKE ANY FURTHER ACTION
TO PARTICIPATE IN THE SETTLEMENT AND RECEIVE COMPENSATION.
1. Why is this Notice being sent?
This Notice is to inform you of a class action settlement in the following case:
Jennifer Hill, Matthew Knighton, and Andre Moore v. Foot Locker, Inc. and Does 1-10, Civil Action No. 08-CH-39148 (Ill.) (“Illinois
State Action”).
On February 7, 2012, a Notice of Class Action Lawsuit Against Foot Locker, Inc. and Foot Locker Retail, Inc. (“Foot
Locker”)1 was mailed to you and over 4,200 other putative Class Members. The Illinois State Action has since settled, and because you
are an Illinois Settlement Class Member, you are receiving this Notice.
2. Description of the Litigation
On October 17, 2008, Plaintiffs Jennifer Hill, Matthew Knighton, and Andre Moore (“Hill Plaintiffs”), on behalf of
themselves and all other Foot Locker employees similarly situated within the State of Illinois, commenced the Illinois State Action
against Foot Locker in the Circuit Court of Cook County, Illinois, to recover all unpaid wages and overtime compensation pursuant to
the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act. In their Complaint, the Hill Plaintiffs allege that
Foot Locker failed to pay them, and other similarly situated hourly retail employees, including but not limited to employees with the job
titles of sales associate, sales clerk, stock person and/or cashier (collectively “Illinois Retail Employees”): (i) the minimum wage for all
hours worked; (ii) overtime wages at the rate of one and one-half times the employee’s regular rate for all hours worked in excess of forty
(40) hours in any given workweek; and (iii) all wages, including overtime pay, within the required pay period. On May 13, 2011, the
Circuit Court of Cook County granted the Hill Plaintiffs’ Motion for Class Certification. At the Parties’ request, on December 10, 2014,
the Court granted leave for Pereira to amend his Complaint for purposes of including the Hill Plaintiffs and the claims pending in the
Illinois State Action.
On May 25, 2007, Francisco Pereira (“Pereira”), an hourly retail employee of Foot Locker filed a class and collective
action complaint (“Complaint”) against his employer under the Fair Labor Standards Act, as amended, 29 U.S.C. § 201 et. seq.,
(“FLSA”) and Pennsylvania state wage and hour law in the United States District Court for the Eastern District of Pennsylvania (the
“Court”). In his Complaint, Mr. Pereira alleges that Foot Locker failed to pay him, and other similarly situated non-exempt employees,
including sales associates, stock persons and cashiers for: (i) the minimum wage for all hours worked; (ii) overtime wages at the rate of
one and one-half times the employee’s regular rate for all hours worked in excess of forty (40) hours in any given workweek; and (iii) all
wages, including overtime pay, within the required pay period.
In addition, employees in other Foot Locker retail stores initiated four other representative actions against Foot Locker in
both state and federal court throughout the country alleging similar claims as those asserted in Pereira. These cases were consolidated
with Pereira as part of the FLSA Litigation, and are currently pending before the Honorable J. Curtis Joyner in the United States District
Court for the Eastern District of Pennsylvania.
Foot Locker denied and continues to deny any liability or wrongdoing, and denies any and all liability and damages to
anyone with respect to the alleged facts or causes of action asserted in the Illinois State Action and FLSA Litigation. Foot Locker also
(“Defendants” or “Foot Locker” means Foot Locker, Inc. and Foot Locker Retail, Inc., and their current, former, and future affiliates,
including, without limitation, their parents, subsidiaries, and related entities, predecessors, successors, divisions, joint ventures and
assigns, and each of these entities’ past or present directors, officers, employees, partners, members, principals, agents, insurers,
co-insurers, re-insurers, shareholders, attorneys, and personal or legal representatives, in their individual and corporate capacities.)
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continues to assert general and affirmative defenses. Notwithstanding its position that it has acted in full compliance with applicable
law, and that there is no merit to any of the Plaintiffs’ claims, Foot Locker recognizes the risks and costs as well as the uncertainties of
further litigation.
The Parties have reached an agreement to settle both the FLSA Litigation and the Illinois State Action (together, the “Joint
Litigation”), which is subject to approval by the Court. Settlement of the Joint Litigation (“Settlement”) was reached as a result of
extensive, arms-length negotiations between the Parties. Specifically, the Parties participated in two formal mediation sessions with Mr.
Michael E. Dickstein of Dickstein Dispute Resolution, and protracted subsequent settlement negotiations.
The purpose of this Notice is to inform you of the terms of the Settlement, and of your rights and options in connection with
it. If approved, the Settlement will resolve all claims in the Joint Litigation as described and defined in the Joint Stipulation and
Settlement Agreement (“Settlement Agreement”).
3. Who is affected by the Settlement?
This Settlement affects all hourly Foot Locker employees who worked for Foot Locker in the State of Illinois at any time
between October 17, 2005 through May 13, 2011 as Illinois Retail Employees as defined above and in the Joint Stipulation and
Settlement Agreement (“Settlement Agreement”), and did not timely request exclusion from the Illinois State Action prior to May 7,
2012.
Additionally, the Settlement affects all hourly Foot Locker employees who worked for Foot Locker in a position below the
level of an assistant store manager for at least one hour in the United States any time between March 2, 2007 through March 2, 2010 as
non-exempt employees including, but not limited to, sales associates, stock associates and cashiers (“Retail Employees”) and (1) filed a
FLSA Consent Form to participate in the FLSA Litigation; and (2) did not withdraw his or her FLSA Consent Form prior to the
execution of the Settlement Agreement.
If you meet these criteria, you will be deemed a Participating Class Member, and will receive a monetary payment as
described in the Settlement Agreement, and discussed below.
4. What are my options?
You have three (3) options with regard to this Settlement. You can: (1) do nothing; (2) object to the Settlement; or (3)
request to be excluded from the Settlement by submitting an Election to Opt Out of Settlement and Class Action Form (“Election to Opt
Out Form”). Details about each option and how it will affect your rights under the law are explained below.
5. What are the terms of the Settlement?
Pursuant to the Settlement, Foot Locker will pay Seven Million, One Hundred Fifty Thousand U.S. Dollars and Zero Cents
($7,150,000.00) (the “Settlement Consideration”) to settle the Joint Litigation. The Settlement Consideration will be deposited into a
Settlement Fund, and will cover all payments to Participating Class Members, as well as attorneys’ fees and reasonable litigation costs,
and Enhancement Payments (as described below). After deduction of the foregoing from the Settlement Consideration, the remainder
will be the Net Settlement Amount.
The Net Settlement Amount will be divided by the total number of Compensable Work Hours. This calculation will
produce an hourly factor, which then will be multiplied by each Participating Class Member’s individual Compensable Work Hours to
calculate each individual’s Gross Settlement Payment.
If the Settlement is approved by the Court, and you meet the criteria described in Section 3 above, you will be entitled to a
Gross Settlement Payment, unless you choose to opt out of the Settlement. The Parties estimate that the minimum recovery for each
Class Member will be approximately $0.51 per Compensable Work Hour. The Claims Administrator will make all legally mandated
payroll deductions from any payments paid to you, and mail you a Net Settlement Payment, as set forth in the Settlement Agreement.
In addition, Class Counsel will seek Court approval of Enhancement Payments to the following individuals in recognition
of the roles they played in the prosecution and resolution of the Joint Litigation: (i) Named Plaintiffs in Pereira and Hill, in the amount
of Ten Thousand Dollars ($10,000.00); (ii) Named Plaintiffs who were deposed, excluding the Named Plaintiffs in Pereira, Hill, and the
Cortes Named Plaintiffs and Opt-In Plaintiffs, in the amount of Five Thousand Dollars ($5,000.00); (iii) Named Plaintiffs who were not
deposed, excluding the Named Plaintiffs in Pereira, Hill, and the Cortes Named-Plaintiffs and Opt-In Plaintiffs, in the amount of Two
Thousand Five Hundred Dollars ($2,500.00); (iv) Declarants who were not a Named Plaintiff, but were deposed, in the amount of One
Thousand Dollars ($1,000.00); (v) Declarants who were not a Named Plaintiff and were not deposed, in the amount of Five Hundred
Dollars ($500.00); and (vi) Sample Opt In Plaintiffs who were served, and responded to, discovery from Foot Locker as a Sample Opt In
Plaintiff, but had no Compensable Work Hours for the Applicable Class Period, in the amount of One Hundred Dollars ($100.00).
Participating Illinois Settlement Class Members will fully and finally release any and all state law claims of whatever kind,
whether in law or equity, sounding in tort, contract, statute or other applicable law, whether known or unknown, for any type of wages,
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premium pay, damages, statutory damages, penalties, attorneys’ fees and costs, restitution, or equitable relief arising out of or related to
any of the claims or allegations asserted, or which could have been asserted, in the Illinois State Action that accrued during the period
beginning on October 17, 2005 and ending on December 9, 2014.
6. Who represents the Settlement Classes?
For more information about the settlement, visit www.footlockerOTsettlement.com. If you have any questions concerning
the Settlement, you should contact the Class Counsel attorneys listed below:
Peter A. Muhic
James A. Maro
Monique Myatt Galloway
KESSLER TOPAZ
MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
(610) 667-7706
7. How will the attorneys for the Settlement Classes be paid?
Class Counsel’s fees and costs will be paid from the Settlement Fund. Lead Class Counsel will seek an award of attorneys’
fees not to exceed 33⅓% of the Settlement Fund, or $2,383,333.33 and reimbursement of reasonable and necessary litigation costs. The
actual amount of fees and expenses awarded will be determined by the Court.
8. How do I participate in the Settlement and what happens if I do?
You do not need to take further action in order to participate in the Settlement. If the Court grants final approval of the
Settlement, you will have agreed to be bound by all of the provisions of the Settlement, and to have fully and finally released the Foot
Locker from the Released Claims. If the Court approves the Settlement, you will receive a Net Settlement Payment calculated as
described in Section 5 above.
9. What if I choose to object to the Settlement?
You can object to the terms of the Settlement before final approval. However, if the Court approves the Settlement, you
may still be bound by the terms of the Settlement. You may both object to the Settlement and participate in it.
To object, you must send a letter or other writing stating that you object to the Settlement in In re: Foot Locker, Inc. Fair
labor Standard Act (FLSA) and Wage and Hour Litigation, No. 11-MDL-02235-JCJ. Be sure to include your name, address, telephone
number, location of the store where you were employed, signature, and a full explanation of the reasons why you object to the
Settlement. Your written Objection must be sent to the counsel listed in Section 6 above, and must be postmarked no later than
March 9, 2015.
You must also mail your Objection to the Clerk of the Court of the United States District Court for the Eastern
District of Pennsylvania no later than March 9, 2015. The address is:
Clerk of the Court
United States District Court for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, Pennsylvania 19103
Any attorney who intends to represent an individual Class Member objecting to the Settlement, and any Class Member
who wishes to proceed pro se (i.e., to represent him or herself and not be represented by Class Counsel) must file a notice of appearance
with the Court on or before March 9, 2015. If you do not object in the manner described above, you shall be deemed to have waived any
objections, and shall forever be foreclosed from objecting to the fairness or adequacy of the Settlement, the payment of attorneys’ fees,
litigation costs, Enhancement Payments, the claims process, and any and all other aspects of the Settlement.
10. What if I choose to exclude myself or “Opt Out” of the Settlement?
You may request to be excluded from the Settlement by submitting an “Election to Opt Out Form” to the Claims
Administrator. If you exclude yourself, you will not receive any monetary payment from the Settlement Fund. You will, however,
retain the right to assert any claims you may have against Foot Locker.
To exclude yourself from the Settlement, you must complete, sign, date, and return the enclosed Election to Opt Out Form
by mailing it to the Claims Administrator, postmarked no later than March 9, 2015. The envelope containing your completed, signed,
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and dated Election to Opt Out Form must be postmarked on or before March 9, 2015. If you Opt Out, you will not be subject to the
Released Claims set forth in the Settlement Agreement, and you will not receive any monies under this Settlement.
11. What if I do nothing?
If you do nothing, you will participate in the Settlement, receive a monetary payment, and release claims against Foot
Locker as described in the Settlement Agreement, and discussed in Section 5 above.
12. Tax Implications
For income and payroll tax purposes, 75% of each Gross Settlement Payment to Participating Class Members shall be
deemed payment in settlement of claims for unpaid wages (which shall be subject to required withholdings and deductions and be
reported as wage income as required by law), and 25% of each Gross Settlement Payment shall be deemed payment in settlement of
claims for liquidated damages/penalties and interest (which shall not be subject to required withholdings and deductions and shall be
reported as non-wage income as required by law). To the extent the Settlement Payments are deemed payment of unpaid wages, they (a)
shall be subject to required withholdings and deductions by the Claims Administrator; and (b) shall be reported in the year of payment as
wage income to the Participating Claimant on a Form W-2 issued by the Claims Administrator and such other state or local tax reporting
forms as may be required by law. One hundred percent (100%) of Enhancement Payments shall be non-wage payments not subject to
payroll withholdings and deductions. Foot Locker and Class Counsel make no representations as to the taxability of any payments
pursuant to the Settlement Agreement. If you have any questions regarding the tax treatment of any payments pursuant to the
Settlement, you should consult your own tax advisor.
13. Final Approval Hearing
The Court will hold a Final Approval Hearing on the fairness and adequacy of the Settlement, the plan of distribution, Lead
Class Counsel’s request for attorneys’ fees and costs, the Administrative Costs, and the Enhancement Payments on May 28, 2015 at
10:00 a.m. before the Honorable J. Curtis Joyner of the United States District Court for the Eastern District of Pennsylvania, located at
601 Market Street, Philadelphia, Pennsylvania 19103. The Final Approval Hearing may be continued or adjourned without further
notice to Class Members. If you wish to attend, you should confirm the date of the Final Approval Hearing with counsel listed in Section
6 above. You are not required to appear at the hearing to participate in or opt out of the Settlement. If you so wish, you may be heard at
that hearing by either appearing in person or through an attorney, but you must advise the Court in advance of your intention to appear.
14. Where can I get more information about the Settlement?
For more information about the Settlement, or if you have any questions regarding the Settlement, you may contact the
Claims Administrator at ILYM Group, Inc., P.O. Box 57087, Irvine, CA 92619; 1-888-670-1686 regarding the Foot Locker Wage and
Hour Settlement. Class Counsel has also established an email address if you prefer to email your change of address or questions:
[email protected].
The full Settlement Agreement, important case documents, the information contained in this Notice, and a list of frequently
asked questions related to the Settlement will be posted at: www.footlockerOTsettlement.com. You may also contact the Class Counsel
attorneys listed above.
PLEASE DO NOT CONTACT THE COURT DIRECTLY ABOUT THIS MATTER.
THE COURT CANNOT PROVIDE YOU WITH LEGAL ADVICE OR ANY OPINION REGARDING THE ILLINOIS
STATE ACTION, THE FLSA LITIGATION, OR THE SETTLEMENT.
QUESTIONS? PLEASE CALL 888-670-1686 TOLL FREE.
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