Source: February 11, 2015 Read More →

Public Notice

NOTICE
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 March 23, 2015 at 1:00 p.m., before the Honorable Judge Lorensen, in his courtroom located at Berkeley County Judicial Center, 380 West South Street, Suite 4400, Martinsburg, West Virginia 25401.

The purpose of the hearing is to determine whether the Proposed Settlement Agreement dated September 26, 2014 is fair, reasonable, and adequate, and should be approved by the Court and judgment entered therein. 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. You are a member of the class described below, and your rights 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 employees of Big Lots Stores, Inc. in the State of West Virginia whose employment was terminated during the period of August 31, 2007 until August 31, 2013 and who did not receive a timely final paycheck pursuant to West Virginia Code Section 21-5-4. Employees in the class who are eligible for settlement funds are employees who, during the relevant time period, were discharged as that term is used in the West Virginia Code from employment by Big Lots and who were not paid their final paycheck within seventy-two (72) hours of their discharge based upon Big Lots’ personnel and payroll records. Employees who are not eligible are those who, during the relevant time period, were laid off, were employed for only a seasonal period (e.g., Christmas Season) and ceased employment at the end of the season; voluntarily quit or resigned, who failed to or who were unable to return to work following a leave of absence, abandoned employment or who were not otherwise discharged by Big Lots. The class includes only those employees 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 Amended Complaint.

Under the relevant version of the West Virginia Wage Payment and Collection Act, which was effective during the time period at issue in this case, when an employer discharges an employee, it shall pay the employee’s final wages in full within seventy-two (72) hours. W.Va. Code Section 21-5-4(b). If an employer fails to do so, the employer is liable to the employee for liquidated damages equal to three times the amount of the employee’s gross final pay and 7{4ceb532c6f579389df471c6c1e832caf2346b74dc60fcbf6aabd4d29df3baf9c} interest. The Parties entered into the Proposed Settlement Agreement in order to secure total and final settlement of all claims against Defendant Big Lots Stores, Inc. (“Defendant” or “Big Lots”) 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 Amended 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 proposed settlement are set forth in the Proposed Settlement Agreement dated September 26, 2014 and executed by counsel for the Parties. The following is a brief summary of the essential terms of the Proposed Settlement Agreement, a complete copy of which may be obtained (see Examination of Pleadings below).

Defendant has agreed to pay a Gross Settlement Amount consisting of: (1) all Settlement Payments; and (2) Defendant’s contribution to Class Counsel’s Fees, which includes Class Counsel’s Expenses. The Settlement Payment made to each member of the Settlement Class will be derived by taking the gross amount of each Class Member’s final paycheck, multiplying it by three, and adding 7{4ceb532c6f579389df471c6c1e832caf2346b74dc60fcbf6aabd4d29df3baf9c} interest through September 23, 2014. In exchange for this settlement, the Class Members will release all claims as more fully detailed in the Proposed Settlement Agreement. The settlement, if approved by the Court, will be distributed as follows:

1) Each Class Member will receive three times the gross amount of the Class Member’s late, as defined by the WPCA, paycheck(s) and 7{4ceb532c6f579389df471c6c1e832caf2346b74dc60fcbf6aabd4d29df3baf9c} interest beginning three days after the employee’s last day worked through September 23, 2014, three days before the date of the signing of the Settlement Agreement.
2) If there are any allocated monies remaining in the Gross Settlement Amount which are deemed undeliverable such funds shall be constructively delivered to such Class Members by timely remitting the same to the Office of the West Virginia Treasurer, Division of Unclaimed Property.
3) Class Counsel will receive attorneys’ fees, expenses and costs in the amount of Thirty Thousand Six Hundred Dollars ($30,600.00).
On approval of the Proposed Settlement Agreement by the Court and distribution of the Gross Settlement amount as previously described, Defendant will be dismissed from the case with prejudice, and a final judgment will be entered.

PROCEDURES
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 Settlement Agreement should not be disposed of by the above mentioned judgment. Any such member of the class may also object to the allowance of the costs, expenses and fees requested by Class Counsel; 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, together with a memorandum of authorities, with the Clerk of the Court, and serves a copy thereof on the following attorneys within thirty (30) days of receipt of this Notice:

COUNSEL FOR CLASS:

David M. Hammer (WVSB #5047)
Hammer, Ferretti
& Schiavoni
408 West King Street
Martinsburg, WV 25401
(304) 263-4988
And
Harry P. Waddell
(WVSB #3883)
300 West Martin Street
Martinsburg, WV 25401
(304)263-4988
And
Susanne E. Thompson (WVSB # 6967)
93 Crimson Circle
Martinsburg, W. Va.
25403
(304) 820-2374
phone (877) 706-1678
susan@myaction
legal.com

COUNSEL FOR
DEFENDANT:

Paul L. Bittner
(WVSB # 8515)
Ice Miller, LLP
250 West Street,
7th Floor
Columbus, Ohio 43215
(614) 462-2228 phone
paul.bittner@
icemiller.com
And
Tracey Eberling
(WVSB # 6306)
Steptoe & Johnson
1250 Edwin Miller Blvd., Ste. 300
P.O. Box 2629
Martinsburg, W. Va. 25402
(304) 262-3532 phone
tracey.eberling@
steptoe-johnson.com

Objections filed and served in accordance with the foregoing procedure will be considered by the Court whether or not the objecting class member appears personally or by counsel at the hearing to argue the same. Failure to file and serve objections in accordance with the foregoing procedures 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 Settlement Agreement and other papers are only summaries of those documents. The complete texts are on file with the clerk of the Court, at the Berkeley County Circuit Clerk’s Office at 380 W South Street #2200, Martinsburg, West Virginia 25401. However, it is requested that you DO NOT CONTACT THE JUDGE OR THE CLERK. If you have questions, or desire a copy, your inquiry should be addressed to one of the Class attorneys listed above.

SUBSEQUENT
HEARINGS
At the hearing on the Proposed Settlement Agreement set for March 23, 2015 at 1:00 p.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 Settlement Agreement, consideration of the applications for fees and costs of Class Counsel, and the form and entry of the Final Judgment Dismissing Action With Prejudice By Reason of Settlement, in the event the Proposed Settlement Agreement is approved by the Court.

WARNING TO
CLASS MEMBERS
If you do not make objections to the Settlement Agreement 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.

Dated this 6th day of January, 2015.
Int. Feb. 11, 18, 2015

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