IN THE CIRCUIT
COURT OF MARSHALL
COUNTY, WEST
VIRGINIA
WILLIAM HIXSON, individually, and on behalf of all others similarly situated,
Plaintiffs,
v.
GMS MINE REPAIR AND
MAINTENANCE, INC.,
Defendant.
Civil Action No. 13-C-67
Judge Jeffrey D. Cramer
NOTICE OF PROPOSED CLASS ACTION
SETTLEMENT AND OF
FINAL FAIRNESS AND APPROVAL HEARING
TO: MEMBERS OF THE CLASS
You are hereby notified, pursuant to Rule 23(e) of the West Virginia Rules of Civil Procedure, that a hearing will be held on April 22, 2016 at 11 a.m. before the Honorable Jeffrey D. Cramer, Judge, in his courtroom located in the Marshall County Courthouse, situated at 600 Seventh Street, Moundsville, WV, 26041
The purpose of the hearing is to determine whether the Proposed Class Action Settlement Agreement dated November 24, 2015 is fair, reasonable, and adequate, and should be approved by the Court and a Judgment entered thereon. The hearing may be adjourned by the Court from time to time by an announcement at the hearing, or at any adjournment thereof, without further notice to you.
You are a member of the Class described below, and your rights as a class member will be affected by the settlement of this action. The giving of this Notice is not to be understood as expressing any opinion by this Court as to the merits of any of the claims or defenses asserted by any Party, and is for the sole purpose of informing all the Class Members (as hereinafter defined) of the proposed Settlement Agreement, so that individual Class Members may make whatever decisions they may deem appropriate for the protection of their interests.
HISTORY OF THE
LITIGATION AND DESCRIPTION OF THE CLASS
For purposes of settlement only, the Parties hereto agree to the following Class definition:
All individuals who were employed by GMS in West Virginia at any time between April 9, 2008 and April 9, 2013, and who have not opted out of this Class Action, and who have, or may have wage payment claims arising under the West Virginia Wage Payment and Collection Act as more fully set forth in the Complaint.
Under the Wage Payment and Collection Act in effect between April 9, 2008 and April 9, 2013, when an employer involuntarily discharges, or fires, an employee, it shall pay that employee’s final wages in full within seventy-two (72) hours of the employee’s termination. W.Va. Code Section 21-5-4(b). If an employer fails to pay all final wages to an employee within the required time period established by the Wage Payment and Collection Act, the employer is liable to the employee for liquidated damages equal to three times the amount of the employee’s final gross pay, plus interest, attorney fees and costs.
The Parties entered into the Proposed Class Action Settlement Agreement in order to secure total and final settlement of all claims against Defendant as specified herein, to provide Defendant the finality and certainty that it would not be faced with claims that were or could have been raised in this controversy, as set forth in the Complaint, and to avoid further expense, inconvenience, and the uncertainty, distraction and hazards of burdensome litigation, including the possibility of protracted appeals.
PROPOSED SETTLEMENT OF CLASS
ACTION
The terms of the settlement are set forth in the Proposed Class Action Settlement Agreement, dated November 24, 2015, and executed by counsel for the Parties. The following is a brief summary of the essential terms of the Proposed Class Action Settlement Agreement, a complete copy of which may be obtained (See Examination of Pleadings, below).
The Defendant has agreed to pay a Gross Settlement amount to all Class Members who timely complete and return a Claim Form, which shall be the lesser of (a) three times the amount of his or her gross, final paycheck, plus interest calculated at the rates set by the Supreme Court of Appeals of West Virginia from the fourth day following their termination until the date of the final approval hearing, or (b) a pro rata share of the Gross Settlement Amount if the amount of returns claim forms exceeds the Gross Settlement Amount stated below. Pursuant to the terms of the Proposed Class Action Settlement Agreement, dated November 24, 2015, in no case shall the sum of the Gross Settlement Amount Payable to the Class and the Class Counsel Fees and Expenses exceed the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00). In exchange for this settlement, the Class will release all claims as more fully detailed in the Proposed Class Action Settlement Agreement. The settlement payment to Mr. Hixson will include additional compensation for his service as a Class Representative.
The Defendant has also agreed to pay Class Counsel’s Fees and Expenses, for work performed and expenses incurred in filing, handling and litigating this claim, as well as administering the settlement. The Defendant has stipulated to the reasonableness of Class Counsel’s Fees and Expenses in the amount of one third of the Gross Settlement for fees and all actual expenses. The Defendant has also agreed to incur all costs associated with publication expenses of the Notice to the Class, and all costs associated with searching for valid addresses for the Class Members. Class Counsel Fees and Expenses are in excess of the liquidated damages and interest each Class Member will receive, and in no way reduce the individual damages to be paid to each Class Member so long as the sum of the Gross Settlement Amount Payable to the Class and the Class Counsel Fees and Expenses do not exceed TWO HUNDRED THOUSAND and NO/100 DOLLARS ($200,000.00).
If there are any unclaimed monies remaining in the Gross Settlement Amount after the payment of all timely and properly submitted Claim Forms, these monies shall be retained by the Defendant.
On approval of the Proposed Class Action Settlement Agreement by the Court, Defendant will be dismissed from the case with prejudice and a final Judgment will be entered.
PROCEDURES
AND TIMELINE FOR
PRESENTING
OBJECTIONS
Any member of this Class may appear at the Hearing in person or through his or her duly authorized attorney and show cause, if he or she has any, as to why the Proposed Class Action Settlement Agreement should not be resolved by the above mentioned Judgment. Provided, however, that no such person shall be heard, and no papers or briefs shall be submitted by him or her to the Court, unless he or she files a Notice of Intention to Appear and a statement of the basis of objections is filed with the Clerk of Court, and a copy served at least five (5) business days prior to the Final Hearing, on Class Counsel at the following address: Sandra K. Law, Esq., Schrader, Byrd & Companion, PLLC, The Maxwell Centre, Suite 500, 32 20th Street, Wheeling, WV 26003.
Objections filed and served in accordance with the foregoing procedure will be considered by the Court whether or not the objecting Class Member
(s) appears personally or by counsel at the hearing to argue the same. Failure to file and serve objections in accordance with the foregoing procedure will constitute a WAIVER of your right to object to the settlement and it will preclude you from pursuing any appeal.
EXAMINATION OF PLEADINGS AND
PAPERS
The reference in this Notice to the Proposed Class Action Settlement Agreement and other papers are only summaries of those documents. The complete text of said documents is on file with the Circuit Clerk’s office, Marshall County Courthouse, 600 Seventh Street, Moundsville, WV 26041. However, it is requested that you DO NOT CONTACT THE JUDGE OR THE CLERK REGARDING THIS NOTICE. Rather, if you have questions, or desire copies, your inquiry should be addressed to the Plaintiff’s Attorneys (Class Counsel) listed above.
SUBSEQUENT
HEARINGS
At the hearing on the Proposed Class Action Settlement Agreement set for April 22, 2016 at 11 a.m., the Court may schedule such further hearings as it may deem necessary without the necessity of further notice to the Class. The matters considered at such future hearings may include, but shall not be limited to, further consideration of the fairness and adequacy of the Proposed Class Action Settlement Agreement, consideration of the applications for fees and costs of Class Counsel, and the form and entry of a final judgment dismissing the Action with, in the event the Proposed Class Action Settlement Agreement is approved by the Court.
WARNING TO CLASS MEMBERS
If you do not make objections to the Settlement in the manner and during the time periods set forth above, you will have been deemed by the Court to have WAIVED any objection and the settlement process will proceed.
Respectfully submitted,
N.R. 8, 10, 16, 18, 2016
235168