United States District Court, N.D. Indiana, South Bend Division
IN RE FEDEX GROUND PACKAGE SYSTEM, INC. EMPLOYMENT PRACTICES LITIGATION (MDL 1700)
FEDEX GROUND PACKAGE SYS., INC Defendant This Document Relates to: CARLENE M. CRAIG, et al., Plaintiffs
OPINION AND ORDER
L. Miller, Jr. Judge
following reasons, the court grants the plaintiffs'
motion for preliminary approval of the proposed
ERISA class action settlement [Doc. No. 3152].
plaintiffs filed this suit, the Kansas ERISA class action, in
2004, and amended their complaint in January 2006 to include
an ERISA national class action. The court granted the
plaintiffs' motion to certify a nationwide ERISA class in
October 2007. The class included:
All persons who: 1) entered into a FXG Ground or FXG Home
Delivery Form Operating Agreement (now known as a Form OP-149
and Form OP-149 RES); 2) drove a vehicle on a full-time basis
(meaning exclusive of time off for commonly excused employmet
absences) during the class period to provide package pick-up
and delivery services pursuant to the Operating Agreement;
and 3) were eligible for ERISA Plan benefits, absent their
mischaracterization as independent contractors.
[Doc. No. 906].
28, 2010, the court granted FedEx Ground's motion for
partial summary judgment, and dismissed the plaintiffs'
ERISA claims without prejudice for failure to exhaust
administrative remedies. [Doc. No. 2078]. Pursuant to the
order, only the named plaintiffs in the Craig case
were required to exhaust their administrative remedies.
Id. at p. 32 (citing In re Household Int'l
Tax Reduction Plan, 441 F.3d 500, 501-02 (7th Cir.
review was completed in February 2011, while the
Craig case was on appeal. When the court of appeals
remanded the case in July 2015, the parties moved for an
immediate stay, so they could engage in settlement
Dickstein was selected to serve as mediator, and successfully
negotiated the settlement of the non-ERISA claims. Mediation
on the ERISA claims was set for June 6, 2016. In preparation,
the plaintiffs retained a forensic accounting expert, David
Breshears, to calculate their potential damages and to
prepare a damage exposure model, the parties exchanged their
damages models, and plaintiffs' Co-Lead Counsel consulted
with local counsel for the named plaintiffs and coordinated
their attendance at the mediation. The parties didn't
reach an agreement on June 6, 2016, but they continued to
work with Mr. Dickstein toward resolution of the ERISA
claims, and on June 7, 2017 executed a “Deal Point
Memorandum” setting forth the terms of a tentative
19, 2017, the plaintiffs filed their Fifth Amended Complaint
reasserting the ERISA claims and related state law claims,
in late August/early September 2017 they executed the
Settlement Agreement [Doc. No. 3154-1] for which the
plaintiffs now seek preliminary approval.
The Proposed Settlement
the terms of the Settlement Agreement, FedEx Ground would pay
$13, 325, 000 (the “Total Settlement Fund”) to
resolve all ERISA class claims (and similar state laws) that
were brought, or could have been brought, against FedEx
Ground during the release period, which runs from the
beginning of “the class period” (February 11,
1998 for Kansas class members and January 9, 2001 for all
other class members) through September 8, 2017, “the
date of filing [the] motion for preliminary approval of the
settlement”. [Doc. No. 3154-1(Sec. I(W))]. In exchange,
the named plaintiffs and all class members who don't opt
out would be required to execute a general release of any
claim they had or may have had during that 15-year period.
plaintiffs' Lead Counsel propose to distribute the $13,
325, 000 settlement this way:
(1) Administration and notice costs - approximately $125,
(2) Service awards to the 13 named plaintiffs - totaling $67,
(3) Attorneys' fees - a “maximum of” $4, 377,
062 (33.33% of the Total Settlement Fund after deductions for