Opinion
Case No. 3:09-cv-722-JPG-DGW.
July 26, 2011
MEMORANDUM AND ORDER
This matter comes before the Court for case management purposes. On May 10, 2011, the Court certified Counts II, III, IV and V of this action to proceed as class action pursuant to Federal Rule of Civil Procedure 23(b)(3). The Court ordered the parties to confer on a mutually acceptable class notice, but the parties have failed to reach an agreement and have each submitted separate notices along with letters justifying them. For the sake of building a complete record, the Court will attach those proposed notices and letters as Attachments 2 and 3 to this order.
The Court has considered the proposed notices submitted by the respective parties and ORDERS that notice shall be given in the form of the notice attached to this order as Attachment 1. The Court FURTHER ORDERS defendants UTi Worldwide, Inc. and UTi Integrated Logistics, Inc. to post the notice conspicuously in the break room of all Illinois facilities in which it employs or has employed forklift operators since September 14, 2004. The notice shall be posted beginning on the first date the notice is mailed and shall continue for a period of 60 days thereafter.
The Court FURTHER ORDERS that a list of all class members who have requested to be excluded from the class be filed in this case within 100 days of the first date the notice is mailed. The list shall be in the following format:
Name Date Request is Postmarked (Last, First; in alpha order)
Any request for an alternation of this schedule or any complaints about compliance shall be directed to Magistrate Judge Donald G. Wilkerson, the magistrate judge assigned to this case.IT IS SO ORDERED.
If you are or were a forklift operator employed by UTi Worldwide, Inc. or UTI Integrated Logistics either directly or through a temporary staffing agency in the State of Illinois, please read this notice. A class action lawsuit may affect your legal rights. A federal court authorized this notice. This is not a solicitation from a lawyer. • Forklift operators have sued UTi Worldwide, Inc. and UTi Integrated Logistics ("UTi") claiming that UTi failed to pay all wages owed for time spent performing activities such as locating forklifts and performing maintenance and inspections before the beginning of the shift and for working during unpaid lunch breaks. • The Court has certified this lawsuit to proceed as a class action. You are a member of the class if: 1. You are or were employed, by UTi in Illinois, either directly or through a temporary staffing agency, at any time from September 14, 2004 to the present; and 2. Your primary duty is or was operating a forklift. You have received this Notice because you are believed to be a member of the class of employees who could be affected by the claims that have been brought in this lawsuit. YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT Stay in this lawsuit. Await the outcome. Give up certain rights. DO NOTHING Get out of this lawsuit. Get no benefits from it. Keep rights. ASK TO BE EXCLUDED • The Court has not yet decided whether UTI did anything wrong. There is no money available now, and no guarantee there will be. However, your legal rights may be affected unless you ask to be excluded before [INSERT DATE 60 days from mailing]. By doing nothing, you keep the possibility of getting money or benefits that may come if Plaintiffs are successful in proving their claims or in negotiating a settlement payment. But, you also give up any rights to sue UTi separately about the same legal claims asserted in this lawsuit and will be bound by any decision that the Court reaches regarding the merits of Plaintiffs' claims. If you ask to be excluded and money or benefits are later awarded, you will not share in those. You will not be bound by any decision that the Court reaches in this lawsuit, and you keep any rights to sue UTi separately about the legal claims asserted in this lawsuit.BASIC INFORMATION
1. Why did I get this notice?
UTi's records show that you currently or previously worked for UTi, either directly or through a temporary staffing agency, operating a forklift in the State of Illinois. The Court has certified a class action lawsuit that may affect you. You have legal rights and options that you may exercise at this time. The lawsuit is known as Nicholson v. UTi Worldwide, Inc., et al, Case No. 3:09-cv-722-JPG-DGW.2. What is a class action and who is involved?
In a class action lawsuit, one or more people called "Class Representatives" (in this case Edward Earl Nicholson) sue on behalf of other people who have similar claims. The people together are a "Class" or "Class Members." The Class Representative who sues — and all the Class Members like him — are called the Plaintiffs. The company they sue (in this case UTi) is called the Defendant. One court resolves the issues for everyone in the Class.
3. Am I part of another Class in this lawsuit?
The Court has certified two classes in this lawsuit. The first one is described in this notice and covers a class of UTi forklift operators employed in the State of Illinois — referred to as the "Illinois Class." The Illinois Class is bringing claims under Illinois state law. The second one covers a class of UTi forklift operators employed anywhere in the United States — referred to as the "Nationwide Class." The Nationwide Class is bringing claims under a federal statute, the Fair Labor Standards Act. Both classes involve the issue of whether UTi's preparation, time rounding, and lunch policies are legal and whether it is obligated to pay forklift operators additional wages, but the Illinois Class is bringing claims for violations of Illinois state law and the Nationwide Class is bringing claims for violations of federal law. You may have received information about the Nationwide Class separately through a different notice that has been approved by the Court. This notice pertains only to the Illinois Class bringing state law claims.
The Illinois Class seeks remedies available under Illinois state law, covers a period of time going back to September 14, 2004, and provides for different damages than the Nationwide Class. The Illinois Class is an "opt-out" class action. That means that in order to participate you do not need to do anything, but if you don't want to participate, you need to timely ask to be excluded from the Illinois Class using the process described in Section 10 of this notice.
You may be a member of both classes and may receive more than one notice explaining your legal rights and options. Please read each notice carefully to understand your legal rights and options with respect to each class.
4. If I return the Consent to Join form to be a member of the Nationwide Class, can I still be a member of the Illinois Class?
Yes. You can be a part of both the Nationwide and Illinois Classes. That means you can return the Consent to Join form to be in the Nationwide Class and also remain in the Illinois Class. Even if you did not return the Consent to Join the Nationwide Class, you will still be a member of the Illinois Class unless you timely ask to be excluded using the process described in Section 10 of this notice.
THE CLAIMS IN THE LAWSUIT
5. What is this lawsuit about?
This lawsuit is about whether UTi's work preparation, time rounding and lunch policies are legal and whether UTi compensated forklift operators for all the time they worked. Plaintiffs say that UTi violated Illinois law by failing to pay its forklift operators for time they spent locating their forklifts and performing maintenance and inspections of those forklifts before the start of their shift. Plaintiffs also say UTi rounded forklift operators' time to the start of the shift even when they performed these activities before the shift started. Also, Plaintiffs say UTi automatically deducted a lunch period each day even if forklift operators worked through a part or all of their lunch break. UTi disputes Plaintiffs' claims and contends that UTi's policies do not violate the law and that UTi compensated forklift operators for all the time they worked.6. What are the Plaintiffs asking for?
Plaintiffs seek to recover unpaid wages from UTi for the time they claim to have spent before their scheduled shift began locating their forklifts and performing maintenance and inspections. Plaintiffs also seek to recover for time they claim to have worked during their unpaid lunch breaks. Plaintiffs also seek other remedies under Illinois law including, but not limited to, compensatory damages, reasonable attorneys' fees and costs of the action, and interest.
7. Has the Court decided who is right?
The Court has not yet decided whether UTi or the Plaintiffs are correct, or whether UTi has any obligation to pay any forklift operator additional wages. By certifying the Illinois Class and issuing this notice, the Court is not suggesting that Plaintiffs will win or lose the case.
YOUR RIGHTS AND OPTIONS
8. What happens if I do nothing at all?
You don't have to do anything now if you want to keep the possibility of getting money or benefits from this lawsuit. By doing nothing you stay in the Illinois Class. If you stay in and the Plaintiffs obtain money or benefits, either as a result of the trial or a settlement, you will be notified about any potential recovery (or how to ask to be excluded from any settlement). If you do nothing now, regardless of whether Plaintiffs win or lose the case, you will not be able to sue, or continue to sue, UTi — as part of any other lawsuit — about the legal claims that are the subject of this lawsuit. You will also be legally bound by all of the orders the Court issues and the judgments the Court makes in this class action.
9. Why would I ask to be excluded?
If
• you already have your own lawsuit against UTi about the same legal claims brought by the Illinois Class in this lawsuit and want to continue with it, or
• you want to bring your own separate lawsuit against UTi about the same legal claims brought by the Illinois Class in this lawsuit,
you may want to ask to be excluded from the Illinois Class. If you exclude yourself from the Illinois Class — which also means to remove yourself from the Illinois Class, and is sometimes called "opting-out" of the Illinois Class — you will not get any money or benefits from the Illinois Class' claims in this lawsuit even if the Plaintiffs obtain them as a result of a trial or a settlement. However, you may then be able to sue or continue to sue UTi for the same legal claims brought by the Illinois Class in this lawsuit. If you exclude yourself, you will not be legally bound by the Court's judgments regarding the Illinois Class' claims in this lawsuit.
You are under no obligation to participate in the Illinois Class and can elect to be excluded for any reason, including your own belief that this lawsuit has no merit. You have the right to ask a lawyer of your own choosing whether you should participate in this lawsuit.
10. How do I ask the Court to exclude me from the Class?
To ask to be excluded, you must send either (1) a "Request To Be Excluded" using the form attached to this notice or (2) a letter stating that you want to be excluded from the Illinois Class in Nicholson v. UTi Worldwide, Inc. Be sure to include your name, address and signature on your Request To Be Excluded form or your letter. You must mail your Request To Be Excluded form or letter postmarked on or before [INSERT DATE 60 days from mailing], to: Nicholson v. UTi Integrated Logistics, Inc. Exclusions, PO Box 679560, Orlando, FL 32867.
THE LAWYERS REPRESENTING YOU
11. Do I have a lawyer in this case?
The Court decided that Richard M. Paul III of the law firm of Stueve Siegel Hanson LLP and Mark Potashnick of Weinhaus Potashnick are qualified to represent you and all Illinois Class Members. Together they are called Class Counsel. These lawyers are experienced in handling similar cases against other employers. More information about these lawyers, their practices, their experience and their law firms is available at www.stuevesiegel.com and www.fairwagelawyers.com.
12. Should I get my own lawyer?
You have the right to discuss this case with a lawyer of your own choosing and the right to decide whether you want to participate in this lawsuit as an Illinois Class Member. If you choose to remain in the Illinois Class, you do not need to hire your own lawyer because Class Counsel will be working on your behalf. But, if you want your own lawyer, you may have to pay that lawyer. For example, you can ask him or her to appear in Court for you if you want someone other than Class Counsel to speak for you.
13. Will I have to pay the lawyers and how will the lawyers be paid?
Class Counsel are working on a contingency fee basis. You will not have to pay them anything. They will get paid only if they get money or benefits for the Illinois Class. If that occurs, they may ask the Court for their fees and expenses. If the Court grants Class Counsel's request, the fees and expenses would be either (1) deducted from any money obtained for the Class, (2) paid separately by UTi, or (3) a combination of the two.
GETTING MORE INFORMATION
14. Are more details available?
Yes. If you have any questions or require additional information, please contact Class Counsel at:
Stueve Siegel Hanson LLP Weinhaus Potashnick 460 Nichols Road, Suite 200 11500 Olive Boulevard, Suite 133 Kansas City, Missouri 64112 St. Louis, Missouri 63141 (888) 756-6496 (314) 997-9150, ext. 2 Allison Gilbert: stuevesiegel.com Mark Potashnick: markp@wp-attorneys.comPLEASE DO NOT CONTACT THE COURT CLERK REGARDING THIS MATTER REQUEST TO BE EXCLUDED
I do not wish to be a part of the Illinois Class in the lawsuit referred to as Nicholson v. UTi Integrated Logistics, Inc., et al, Case No. 3:09-cv-722-JPG-DGW. By my signature below, I request to be excluded from these proceedings. Dated: ___________________________________ Name: _________________________________________________ (Signature) Name: _________________________________________________ (Printed) Address: ____________________________________________ ____________________________________________ ____________________________________________ Phone Number: _________________________________ FAILURE TO REQUEST TO BE EXCLUDED BY [INSERT DATE] MAY RESULT IN A LOSS OF YOUR RIGHT TO BE EXCLUDED FROM THE ILLINOIS CLASS IN THIS LAWSUIT AND BIND YOU TO ANY DECISION THE COURT REACHES IN THIS ACTION. IF YOU WISH TO BE EXCLUDED FROM THE ILLINOIS CLASS, SEND THIS FORM OR A LETTER REQUESTING TO BE EXCLUDED TO: Nicholson v. UTi Integrated Logistics, Inc. Exclusions, PO Box 679560, Orlando, FL 32867May 27, 2011
SENT VIA ELECTRONIC MAIL
Honorable J. Phil Gilbert
U.S. District Court Southern District of Illinois
Kenneth Gray Federal Building
301 West Main Street, Courtroom 1
Benton, IL 62812 RE: Nicholson v. UTi Worldwide, Inc., et al. Case No. 09-CV-00722-JPG-DGW
Dear Judge Gilbert,On May 10, 2011, this Court certified Plaintiffs' claims arising under Illinois Law. The class consists of:
All current or former employees of UTi Worldwide, Inc. or UTi Integrated Logistics, Inc. in the State of Illinois, whether employed directly by UTi Worldwide, Inc. or UTi Integrated Logistics, Inc. or indirectly through a temporary staffing agency whose primary job duty is or was to operate a forklift at any time from September 14, 2004, to the present.
Per the Court's order, the parties have met and conferred regarding the content of the Notice to be sent to putative class members. Given the magnitude of the parties' differences in their respective proposed notices, Plaintiffs submit their proposed Notice (attached as Ex. A) and argument in support.
Form and Substance of Class Notice
Under Rule 23, once this Court certifies a class action, "the court must direct to class members the best notice that is practicable under the circumstances. . . ." Fed. Civ. Pro. Rule 23(c)(2)(B). In discussing the form and substance of class notice, the rule further directs that any notice "must clearly and concisely state in plain, easily understood language" the nature of the action, the class definition, the class claims and defenses, that the class member may enter an appearance, that the court will exclude from the class any members who request exclusion, the time and manner for requesting exclusion and the binding effect of any class judgment. Id. Plaintiff's proposed notice includes all required information in easy to understand language based, in large part, on the Federal Judicial Center's recommended form of class notice.
In reviewing a proposed notice, "[t]he Court has both the power and the duty to ensure that the notice is fair and accurate, [but] that power should not be used to alter plaintiffs' proposed notice unless such alteration is necessary." Heitmann v. City of Chicago, 2004 WL 1718420, *3 (N.D. Ill. July 30, 2004) (citing King v. ITT Cont'l Baking Co., 1986 WL 2628, *3 (N.D. Ill. Feb. 18, 1986)) (emphasis added). Thus, in deciding between proposals from Plaintff and the Defendants, the Court should adopt Plaintiff's proposed notice unless it is unfair or it contains inaccurate information related to the case. As the Heitmann court specifically explained:
Although Defendant's proposed notice and consent forms would be adequate, the Court will not order the Plaintiff to use the Defendants' proposed forms. . . . There are myriad minor variations in the presentation of information that might make a difference to the parties in the case. As one example, the Plaintiff may want to generate the notice on the stationery of its law firm rather than a page headed with a formal case caption. The only thing that matters to the Court is that the notice of lawsuit and consent form convey accurately and fairly all the necessary information at this stage.Id. at *3 (internal citations omitted).
Significantly, Plaintiff's notice not only fully satisfies Rule 23 by notifying Class members of the pertinent facts and their legal rights in a fair and accurate manner, Plaintiff's proposed class notice was drafted, nearly verbatim, from the approved and recommended form class notice created by the Federal Judicial Center. See www.fjc.gov; Ex. B (Exemplar Notice). The Federal Judicial Center informs judges and lawyers that it has drafted several form class notices as "Illustrative" forms to be followed by the courts and counsel throughout this country when dealing with class action notices. The Federal Judicial Center conducted exhaustive research in arriving at what it considers to be the best practicable form for class notice:
We began this project by studying empirical research and commentary on the plain language drafting of legal documents. We then tested several notices from recently closed class actions by presenting them to nonlawyers, asking them to point out any unclear terms, and testing their comprehension of various subjects. Through this process, we identified areas where reader comprehension was low. We found, for example, that nonlawyers were often confused at the outset by use of the terms "class" and "class action." Combining information from the pilot test with principles gleaned from psycholinguistic research, we drafted preliminary illustrative class action notices and forms. We then asked a lawyer-linguist to evaluate them for readability and redrafted the notices in light of his suggestions.
Plaintiff's proposed notice accurately and fairly reflects Plaintiff's claims and UTi's defenses, the posture of the litigation, and the procedural requirements for class members to participate, or not participate, in the litigation. Additionally, Plaintiff has added additional sections specifically addressing the confusion that may arise from the fact that class members recently received an opt-in notice under the FLSA. Plaintiff thus urges the Court to approve Plaintiff's proposed notice without modification.
Plaintiff's Notice Addresses Potential Confusion Arising From Two Notices
This Court directed the parties to address "the potential confusion that may result from this notice in light of the FLSA collective action notice that class members may also receive." Order (Doc. 155) p. 18. Plaintiff has addressed this concern several ways.
First, Plaintiff includes two sections near the beginning of the notice addressing the fact that this case involves claims under both state and federal law that require separate notices.
Second, to avoid confusion with the previous notice class members have already received, Plaintiff's proposed notice does not include an opt-out form for class members to sign and return. For that same reason, Plaintiff believes that the Defendants' proposal to include such a form creates, rather than avoids, such confusion. The opt-out requirements as drafted are identical to those in the FJC Notice. Even under normal circumstances when no opt-in notice has preceded an opt-out notice, including an opt-out form more likely leads to the result of individuals unwittingly opting-out. See Canel v. Lincoln Nat. Bank, 175 F.R.D. 517, 518 (N.D. Ill. 1997) ("Courts have often refused to allow an opt-out form to be included with a class notice because the approach creates more confusion than it remedies."). Because the minimal benefit does not offset the potential for confusion, such opt-out forms have been rejected:
[Defendant] argues that the notice should include an "opt out form" that absent class members can simply mail-in to Plaintiffs' counsel. [Defendant] argues that this would be the simplest way for absent class members to opt out. Nothing in Fed.R.Civ.P. 23(c)(2) requires an opt out form, and the notice provides reasonable and clear instructions on the procedure of opting out. Plaintiffs' proposed notice clearly indicates that a letter simply needs to be mailed to Plaintiffs' counsel, and the notice provides clear instructions on page seven. Consequently, the advantages provided by an "opt out form" would be minuscule, and there is simply no need to require Plaintiffs to include one.In re FedEx Ground Package Sys., Inc. Emp. Practices Litig., 2008 WL 927654, *3 (N.D. Ind. 2008). Here, given the additional potential confusion from class members' previous receipt of an opt-in notice, it is inevitable that people will assume that they should again fill out the enclosed form to join the Rule 23 Class, and for that reason an opt-out form is a mistake.
Defendant's Proposed Changes Are Meant to Discourage Participation
During the meet and confer process, Plaintiff reviewed UTi's proposed notice. Plaintiff has agreed to some of UTi's requested modifications and incorporated them into his proposed notice. The majority of UTi's changes, however, are directly contrary to the FJC's proposed notice and should not be accepted. The Notice is meant to inform Class Members of their potential rights and options, not to repeatedly discourage participation. UTi's proposed Notice is longer, repetitive, more confusing, and clearly intended to deter participation. Class Members do not need to be told how to opt-out seven times; informed of UTi's position three times; advised how Class Counsel will be compensated three times; notified of the Court's lack of a position three times; and reminded that they will be bound by the Court's decision three times. The longer the Notice the more confusing it becomes. Plaintiff has drafted a short, concise Notice outlining the facts, the parties' positions, how to opt-out, and the difference between the Rule 23 and FLSA claims in a manner approved by the Federal Judiciary Center.
The starting point for the Court's consideration is the Plaintiffs' proposed notice, and the Court should not modify the draft notice "unless such alteration is necessary." Heitmann, 2004 WL 1718420, at *3. Because Plaintiff's proposed notice is "timely, accurate, and informative," and because Defendants cannot show that alteration is necessary, the Court should adopt Plaintiff's proposed notice in its entirety.
If you work(ed) as a forklift operator for UTi, either directly or through a temporary staffing agency in the State of Illinois, a class action lawsuit may affect your legal rights. A federal court authorized this notice. This is not a solicitation from a lawyer. YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT Stay in this lawsuit. Await the outcome. Give up certain rights. DO NOTHING Get out of this lawsuit. Get no benefits from it. Keep rights. ASK TO BE EXCLUDED • Forklift operators have sued UTi Worldwide, Inc. and UTi Integrated Logistics ("UTi") claiming that UTi failed to pay all wages owed for time spent performing activities such as locating forklifts and performing maintenance and inspections before the beginning of the shift and for working during unpaid lunch breaks. • The Court has allowed this lawsuit to proceed as a class action. You are a member of the class if: 1. You are/were employed by UTi in Illinois, either directly or through a temporary staffing agency, at any time from September 14, 2004 to the present; and 2. Your primary duty was operating a forklift. • The Court has not yet decided whether UTI did anything wrong. There is no money available now, and no guarantee there will be. However, your legal rights may be affected unless you ask to be excluded before [INSERT DATE 60 days from mailing]. By doing nothing, you keep the possibility of getting money or benefits that may come from a trial or a settlement. But, you give up any rights to sue UTi separately about the same legal claims asserted in this lawsuit. If you ask to be excluded and money or benefits are later awarded, you won't share in those. But, you keep any rights to sue UTi separately about the same legal claims in this lawsuit.BASIC INFORMATION
1. Why did I get this notice?
UTi's records show that you currently work, or previously worked, for UTi, either directly or through a temporary staffing agency, operating a forklift in the State of Illinois. The Court has certified a class action lawsuit that may affect you. You have legal rights and options that you may exercise at this time. The lawsuit is styled Nicholson v. UTi Worldwide, Inc., et al, Case No. 3:09-cv-722-JPG-DGW.2. What is a class action and who is involved?
In a class action lawsuit, one or more people called "Class Representatives" (in this case Edward Earl Nicholson) sue on behalf of other people who have similar claims. The people together are a "Class" or "Class Members." The Class Representatives who sue — and all the Class Members like them — are called the Plaintiffs. The company they sued (in this case UTi) is called the Defendant. One court resolves the issues for everyone in the Class.
3. Am I part of another Class in this lawsuit?
The Court has certified two classes in this lawsuit. The first one is described in this notice and covers a class of UTi forklift operators employed in the State of Illinois — referred to as the "Illinois Class." The second one covers a class of UTi forklift operators employed anywhere in the United States — referred to as the "Nationwide Class." Both classes involve the same issue of whether UTi's preparation, time rounding, and lunch policies are legal and whether it is obligated to pay forklift operators for the time they spend preparing for work before the beginning of the shift and time spent working during lunch.
The Illinois Class seeks remedies available under Illinois law, covers a longer period of time going back to September 14, 2004, and provides for different damages than the Nationwide Class. The Illinois Class is an "opt-out" class action. That means that in order to participate you don't need to do anything, but if you don't want to participate, you need to timely submit an exclusion request.
The Nationwide Class seeks remedies available under federal law and covers a shorter period of time — two or three years depending on what is proven at trial. The Nationwide Class claims seek damages that are different from the Illinois Class, and includes a doubling of the damages. The Nationwide Class is an "opt-in" collective action. That means that if you want to participate you must timely return a Consent to Join form, and if you do nothing, you give up the possibility of getting money or benefits that may come from a trial or a settlement.
You may be a member of both classes and may receive more than one notice explaining your legal rights and options. Please read each notice carefully to understand your legal rights and options. You can obtain copies of each notice at stuevesiegel.com.
4. If I return the Consent to Join form to be a member of the Nationwide Class, can I still be a member of the Illinois Class?
Yes. You can be a part of both the federal and state classes. That means you can return the Consent to Join form to be in the Nationwide Class and also remain in the Illinois Class. You lose no rights by being a part of both classes. To be in the Nationwide Class you must return the Consent to Join form by September 9, 2011. You should have already received that form in the mail. If you need another copy, contact Simpluris at 888-369-6080. To remain in the Illinois Class, as discussed in paragraph 10, you do not have to do anything.
THE CLAIMS IN THE LAWSUIT
5. What is this lawsuit about?
Plaintiffs say that UTi violated Illinois law by failing to pay its forklift operators for the time they spend locating their forklifts and performing maintenance and inspections before their shifts. Plaintiffs also say UTi rounds forklift operators' time to the start of the shift even when they perform these activities before the shift starts. Also, Plaintiffs say UTi automatically deducts a lunch each day and that this occurs even if forklift operators work through a part or all of their lunch. This lawsuit is about whether UTi's preparation, time rounding and lunch policies are legal and whether it is obligated to pay forklift operators for the time they spend performing these activities.UTi disputes Plaintiffs' claims and contends that UTi compensates all employees for all hours that they work.
6. What are the Plaintiffs asking for?
Plaintiffs seek to recover unpaid wages from UTi for the time they spent before their scheduled shift began locating their forklifts and performing maintenance and inspections. Plaintiffs also seek to recover for time worked during their unpaid lunch breaks. Plaintiffs also seek other remedies available under Illinois law, including, but not limited to, compensatory damages, reasonable attorneys' fees and costs of the action, and interest.
7. Has the Court decided who is right?
The Court has not yet decided whether UTi or the Plaintiffs are correct. By establishing the Class and issuing this Notice, the Court is not suggesting that Plaintiffs will win or lose the case.
YOUR RIGHTS AND OPTIONS
8. What happens if I do nothing at all?
You don't have to do anything now if you want to keep the possibility of getting money or benefits from this lawsuit. By doing nothing you stay in the Illinois Class. If you stay in and the Plaintiffs obtain money or benefits, either as a result of the trial or a settlement, you will be notified about any potential recovery (or how to ask to be excluded from any settlement). If you do nothing now, regardless of whether Plaintiffs win or lose the trial, you will not be able to sue, or continue to sue, UTi — as part of any other lawsuit — about the same legal claims that are the subject of this lawsuit. You will also be legally bound by all of the Orders the Court issues and judgments the Court makes in this class action.
9. Why would I ask to be excluded?
If you already have your own lawsuit against UTi about the same legal claims in this lawsuit and want to continue with it, you need to ask to be excluded from the Illinois Class. If you exclude yourself from the Illinois Class — which also means to remove yourself from the Illinois Class, and is sometimes called "opting-out" of the Class — you won't get any money or benefits from this lawsuit even if the Plaintiffs obtain them as a result of the trial or from any settlement. However, you may then be able to sue or continue to sue UTi for the conduct challenged in this lawsuit that occurred or occurs at any time. If you exclude yourself, you will not be legally bound by the Court's judgments in this class action.
10. How do I ask the Court to exclude me from the Class?
To ask to be excluded, you must send an "Exclusion Request" in the form of a letter sent by mail, stating that you want to be excluded from Nicholson v. UTi Worldwide, Inc. Be sure to include your name and address, and sign the letter. You must mail your Exclusion Request postmarked on or before [INSERT DATE 60 days from mailing], to: Nicholson v. UTi Worldwide, Inc. Exclusions, PO Box 679560, Orlando, FL 32867.
THE LAWYERS REPRESENTING YOU
11. Do I have a lawyer in this case?
The Court decided that Richard M. Paul III of the law firm of Stueve Siegel Hanson LLP and Mark Potashnick of Weinhaus Potashnick are qualified to represent you and all Class Members. Together they are called Class Counsel. These law firms are experienced in handling similar cases against other employers. More information about these law firms, their practices, and their lawyers' experience is available at www.stuevesiegel.com and www.fairwagelawyers.com.
12. Should I get my own lawyer?
You do not need to hire your own lawyer because Class Counsel is working on your behalf. But, if you want your own lawyer, you will have to pay that lawyer. For example, you can ask him or her to appear in Court for you if you want someone other than Class Counsel to speak for you.
13. Will I have to pay the lawyers and how will the lawyers be paid?
If Class Counsel gets money or benefits for the Illinois Class, they may ask the Court for fees and expenses. You won't have to pay them anything. If the Court grants Class Counsel's request, the fees and expenses would be either deducted from any money obtained for the Class or paid separately by UTi, or may be a combination of the two.
GETTING MORE INFORMATION
14. Are more details available?
Yes. If you have any questions or require additional information, please contact Class Counsel at:
Stueve Siegel Hanson LLP Weinhaus Potashnick 460 Nichols Road, Suite 200 11500 Olive Boulevard, Suite 133 Kansas City, Missouri 64112 St. Louis, Missouri 63141 (888) 756-6496 (314) 997-9150, ext. 2 stuevesiegel.com/uti Mark Potashnick: markp@wp-attorneys.comPLEASE DO NOT CONTACT THE COURT CLERK REGARDING THIS MATTER
May 27, 2011VIA ELECTRONIC MAIL
Honorable J. Phil Gilbert
U.S. District Court
Southern District of Illinois
Kenneth Gray Federal Building and U.S. Courthouse
301 West Main Street
Courtroom 1
Benton, IL 62812 Edward Earl Nicholson, et. al., v. UTI Integrated Logistics, Inc., et. al. Case No. 3:09-cv-00722-JPG-DGW
Re: , Dear Judge Gilbert:In accordance with the Court's Order of May 10, 2011, Defendants respectfully submit their proposed notice to the Illinois, Rule 23 class that was certified by the Court. Defendants provided their comments to Plaintiffs on May 19, 2011, after receiving a proposed notice from Plaintiffs on May 18, 2011. On May 24, 2011, Plaintiffs informed Defendants that they did not intend to discuss the revisions proposed by Defendants but, rather, intended to submit their proposal directly to the Court on May 27, 2011. Accordingly, Defendants submit a clean and redline copy of the proposed notice that Defendants previously provided to Plaintiffs on May 19, 2011.
Defendants have three general concerns about the class notice Defendants received from Plaintiffs: (a) the notice is factually inaccurate; (b) the notice provides a cumbersome means for putative class members to "opt-out" of the class and inadequate information about the opt-out process; and (c) the notice creates potential confusion among the class members about the previously certified FLSA class by providing instructions about how to "opt-in" to the FLSA class.
Defendants' concerns about the factual inaccuracy of Plaintiffs' proposed class notice include:
• Plaintiffs erroneously defined the Rule 23 class by instructing putative class members that they are a member of the class only if they "were not paid for all the time you spent performing activities such as locating your forklift and performing maintenance and inspections before your shift started and/or during your unpaid lunch break." The Court did not include this sentence in its class definition. Moreover, even Plaintiffs' witnesses do not contend that they perform "maintenance and inspections" on forklift trucks during lunch breaks.
• In Section 3, Plaintiffs advise the class that both the Rule 23 class and the FLSA class "involve the same issue of whether UTI's preparation, time rounding, and lunch policies are legal and whether it is obligated to pay forklift operators for the time they spend preparing for work before the beginning of the shift and time spent working during lunch." This representation is inaccurate in that Plaintiffs have not, in fact, established that the referenced "policies" even exist. Further, UTi has not argued that it does not have an obligation to pay forklift operators for work that has been performed. Thus, it is unfair and misleading to suggest to putative class members that UTi contends that it has no obligation to pay employees for work performed pre-shift or during lunch breaks. UTi has similar concerns about Plaintiffs' poorly defined reference to "UTi's preparation, time rounding and lunch policies" in Section 5 of the Plaintiffs' proposed class notice.
• In Sections 3 and 9, Plaintiffs propose to advise putative class members that they will "give up the possibility of getting money or benefits" or "won't get any money or benefits" if they opt out of the case. Defendants object to this language as misleading. Defendants propose to remind the putative class on page 1 of the proposed notice that there is no current money available to anyone and no guarantee of payment to any class member.
• In Section 4, Plaintiffs erroneously advise putative class members that they "lose no rights" by failing to "opt-out" of this lawsuit. As indicated in page 2 and in Section 8 of the proposed notice, among other issues, putative class members who do not "opt-out" of this case lose the right not to be bound by any result in this case should they elect to remain in the case.
• In Section 12 ("Should I get my own lawyer?"), Plaintiffs represent to putative class members that they "will" be required to pay for a lawyer if they seek legal advice as to this case. Such a blanket representation is necessarily false, as putative class members may have access to free legal advice for any number of reasons. Moreover, Defendants are concerned about Plaintiffs' apparent failure to agree to Defendants' proposed insertion of text on page 2 and in Section 12 of the proposed notice that reminds putative class members that they are free to discuss this case with counsel of their own choosing. Providing such advice to putative class members is consistent with, if not required by, Rule 4.3 of Rules of Professional Conduct of both Illinois and Missouri, as prospective class members are not represented by Class Counsel, and may have a possible conflict of interest with Class Counsel, until they fail to opt out of this case.
• Similarly, in Section 9, Plaintiffs misleadingly suggest to putative class members that they should only ask to be excluded from this case if they have a separate claim pending against UTi for the same issues presented in this action. Defendants object to this representation being made to putative class members, as the provision of such advice may violate Rule 4.3 as well.
With respect to the opt-out process, Defendants note that Plaintiffs prepared a form for putative FLSA class members to use for the purpose of opt-in to the FLSA class. By contrast, in the Rule 23 notice, Plaintiffs directed putative class members that they would need to write their own letter in order to opt-out of the Rule 23 class. Plaintiffs offered no justification for treating the Rule 23 class differently. Obviously, asking a putative class member to write a letter for the purpose of opting out of the Rule 23 class is an unnecessary hurdle that Plaintiffs should not create, especially given that Plaintiffs were willing to provide a prepared form for use by those who wished to opt-in to this lawsuit. By providing an "opt-in" form, but not an "opt-out" form, Plaintiffs only increase the chance that individuals will be confused about what steps they need to take to preserve their rights in this case.
In addition, this Court directed in its May 10, 2011 Order that the parties attempt to address potential confusion that may occur when putative class members receive more than one notice about this lawsuit. By the time that UTi's full-time and temporary employees in Illinois receive notice of the Rule 23 class, each should have already been sent a court-approved notice regarding the FLSA class. Plaintiffs participated in the drafting of this notice. Nevertheless, Plaintiffs propose to include additional information about the FLSA class in the Rule 23 notice in Sections 3 and 4 of their proposed Rule 23 class notice. Indeed, in these Sections, Plaintiffs propose to remind Illinois-based employees that they may still join the FLSA class and may obtain additional copies of the FLSA class notice by contacting Class Counsel. Thus, Plaintiffs appear to be willing to provide multiple copies of the FLSA "opt-in" form to putative class members, but seek to require that putative class members draft their own letters if they wish to opt-out of the Rule 23 class.
Plaintiffs' proposed notice will contribute to possible confusion within the Rule 23 class because the notice prepared by Plaintiffs was not tailored for the more limited purpose of informing putative class members about the state-law claims that have been asserted and the Rule 23 class that has been certified. Rather, Plaintiffs' proposed notice includes instructions on how to join the FLSA class and where to obtain a opt-in form if the first one had been lost. There should be no need for Plaintiffs to provide such a reminder notice to Illinois-based employees that they may join the FLSA class in the manner that Plaintiffs propose to do in Sections 3 and 4 of their notice. If Plaintiffs had concerns about the content of the FLSA notice that was previously approved by the Court, such concerns should have been raised in a timely manner. Further, the proposed notice prepared by Defendants provides more than ample information on how to reach Class Counsel in the event that individuals in Illinois may have lost the FLSA class notice that was previously sent.
For the purpose of reducing potential confusion about the status of this case and why individuals are receiving a second notice about this case, Defendants propose to advise employees on the first page of the notice: (a) there has been no merits-related decision in this case, and (b) this second notice is not being issued because there are currently funds available for distribution. Defendants patterned their proposed statement based on text previously approved by the district court in Spoerle v. Kraft Foods Global, Inc., No. 07-C-300 (W.D. Wis. May 23, 2008) (attached as Ex. A), which was also a case in which more than one notice was sent to putative class members relating to Rule 23 and FLSA claims.
In addition, as noted previously, Defendants object to Plaintiffs' position that individuals who desire to be excluded from the case need to prepare their own letter. Accordingly, Defendants have prepared a "Request To Be Excluded" form and request that a form of this type be provided to putative Rule 23 class members. Defendants have modified the form that they provided to Plaintiffs on May 19, 2011 to include additional language that has been approved for use by the district court in Romero v. Producers Dairy Foods, Inc., No. 05-CV-484 (E.D. Cal. Apr. 26, 2006) (attached as Ex. B), which also involved both state-law and FLSA claims.
Moreover, the notice prepared by Plaintiffs repeatedly suggests that individuals who opt out of the Rule 23 class action will receive "no money or benefits" that may be awarded, and advise these individuals that they "do not need to do anything" in order to participate. See, page 2, and Sections 3, 8, 9 of Plaintiffs' proposed class notice. By comparison, the FLSA class notice that Plaintiffs proposed and submitted to the Court last February did not include an express suggestion that anyone could receive "money or benefits" by joining the case. Because Plaintiffs' proposed notice places such heavy emphasis on the purported "possibility of getting money or benefits" from this case, Defendants urge the Court to require that the notice include express reminders to the putative class that: (a) each has the right to obtain independent legal advice about whether to remain in the case; (b) each is free to opt out of the case if they so elect; and (c) each should not assume that UTi has failed to pay anyone for fewer than all hours worked. Defendants have provided requested language for these purposes in their competing proposed notice to the Rule 23 class, which is attached.
Finally, as Defendants have noted previously to the Court, all putative class members in this case were either full-time employees of UTi Integrated Logistics or temporary employees assigned to work for UTi Integrated Logistics; UTi Worldwide, Inc. has no employees. To reduce potential confusion over which entity is the actual employer in this action and the scope of the claims at issue, Defendants have proposed that the caption in the notice list UTi Integrated Logistics as the defendant and reference UTi Integrated Logistics first whenever both entities are mentioned. Defendants request that the notice issued follow this convention.
We appreciate the Court's consideration of these issues.
If you are or were a forklift operator employed by UTi Integrated Logistics or UTi Worldwide, Inc., either directly or through a temporary staffing agency in the State of Illinois, please read this notice. A class action lawsuit may affect your legal rights. A federal court authorized this notice. This is not a solicitation from a lawyer. • Forklift operators have sued UTi Integrated Logistics and UTi Worldwide, Inc. ("UTi") claiming that UTi failed to pay all wages owed for time spent performing activities such as locating forklifts and performing maintenance and inspections before the beginning of the shift and for working during unpaid lunch breaks. UTi denies these claims and believes that forklift operators in Illinois have been paid for all hours worked for UTi. • The United States District Court for the Southern District of Illinois has certified this lawsuit to proceed as a class action. You are a member of the class if: 1. You are currently employed, or were previously employed, by UTi in Illinois, either directly or through a temporary staffing agency, at any time from September 14, 2004 to the present; and 2. Your primary duty was operating a forklift. You have received this Notice because you are believed to be a member of the class of employees who could be affected by the claims that have been brought in this lawsuit. There is no money available to you now as a result of this lawsuit, and there are no guarantees that there will ever be any money available to you if you choose to remain in this lawsuit. • By certifying a class and allowing you the option to participate in this lawsuit, the Court has not yet decided whether UTI did anything wrong. The Court may determine that UTi has done nothing wrong and has paid all of its forklift operators in Illinois all of the wages and compensation to which they are entitled. However, your legal rights may be affected unless you ask to be excluded, and, to do so, you must act before [INSERT DATE 60 days from mailing]. A copy of the form that you may use to request to be excluded from this lawsuit is attached to this notice, and additional instructions on how to request to be excluded from this case are provided in paragraph 10 of this notice. YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT Stay in this lawsuit. Await the outcome. Give up certain rights. do nothing DO NOTHING Get out of this lawsuit. Get no benefits from it, if any. Keep rights. ASK TO BE EXCLUDED You have no obligation to participate in this lawsuit as a Class Member, and are free to seek independent legal advice from a lawyer of your own choosing as to whether you should remain a part of this lawsuit. If you , you will automatically be treated as part of the class that has been certified by the Court and your rights could be affected by this lawsuit. You would keep the possibility of getting money or benefits that may come from a trial or a settlement, if Plaintiffs are successful in proving their claims or in negotiating a settlement payment. But, you would also give up any rights to sue UTi separately about the same legal claims asserted in this lawsuit and would be bound by any decision that the Court reaches regarding the merits of Plaintiffs' claims, if any. If you ask to be excluded and money or benefits are later awarded, you will not share in those, if any. But, you are not bound by any decision that the Court makes regarding the merits of Plaintiffs' claims in this lawsuit, whether favorable or unfavorable. If you believe that you have a claim for money owed to you by UTi that you want to pursue separately, you may do so only if you ask to be excluded from this Class Action. In order to be excluded from this lawsuit, you must follow the steps outlined in Section 10 below by [INSERT DATE 60 days from mailing].BASIC INFORMATION
1. Why did I get this notice?
UTi's records show that you currently work, or previously worked, for UTi, either directly or through a temporary staffing agency, operating a forklift in the State of Illinois. The Court has certified a class action lawsuit that may affect you, unless you elect to exclude yourself from this case. You have legal rights and options that you may exercise at this time, which are described in this notice. The lawsuit is styled Nicholson v. UTi Integrated Logistics, Inc., et al, Case No. 3:09-cv-722-JPG-DGW.2. What is a class action and who is involved?
In a class action lawsuit, one or more people called "Class Representatives" (in this case Edward Earl Nicholson) sue on behalf of other people who have similar claims. The people together are a "Class" or "Class Members." The Class Representatives who sue — and all the Class Members like them — are called the Plaintiffs. The company they sued (in this case UTi) is called the Defendant. One court resolves the issues for everyone in the Class. If the attorneys who are representing the Class are successful in recovering money on your behalf, these attorneys may be compensated from a portion of the money that is paid by UTi.
3. Am I part of another Class in this lawsuit?
The Court has certified two classes in this lawsuit. The first one is described in this notice and covers a class of UTi forklift operators employed in the State of Illinois — referred to as the "Illinois Class." The second one covers a class of UTi forklift operators employed anywhere in the United States — referred to as the "Nationwide Class." You either have or will receive information about the Nationwide Class separately through a notice that has been approved by the Court.
The Illinois Class seeks remedies available under Illinois law, covers a period of time going back to September 14, 2004, and provides for different damages than the Nationwide Class. The Illinois Class is an "opt-out" class action. That means that in order to participate you do not need to do anything, but if you don't want to participate, you need to let Class Counsel know that you do not want to participate in this lawsuit by completing the attached Request To Be Excluded, which is described in paragraph 10, below.
You may be a member of both classes and may receive more than one notice explaining your legal rights and options. Please read each notice carefully to understand your legal rights and options with respect to each Class.
4. If I return the Consent to Join form to be a member of the Nationwide Class, can I still be a member of the Illinois Class?
Yes. You can be a part of both the federal and state classes. That means you can return the Consent to Join form to be in the Nationwide Class and also remain in the Illinois Class. If you did not return the Consent to Join the Nationwide Class, you would still be a member of the Illinois Class, unless you return the enclosed Request To Be Excluded form, which is attached.
THE CLAIMS IN THE LAWSUIT
5. What is this lawsuit about?
Plaintiffs say that UTi violated Illinois law by failing to pay its forklift operators for the time they claim to have spent locating their forklifts, changing batteries on these forklifts, and performing other maintenance and inspections of those forklifts before the start of their shift. Plaintiffs also say UTi rounds forklift operators' time to the start of the shift even when they claim to have performed these activities before the shift starts. Also, Plaintiffs say UTi automatically deducts a lunch each day and that this occurs even if forklift operators claim to have worked through a part or all of their lunch. UTi disputes Plaintiffs' claims and contends that UTi compensates all employees for all hours that they work. This lawsuit is about whether Plaintiffs' claims are factually accurate, and, if so, whether UTi is obligated to pay forklift operators for the time they spend performing these activities.
6. What are the Plaintiffs asking for?
Plaintiffs seek to recover unpaid wages from UTi for the time they claim to have spent before their scheduled shift began locating their forklifts, changing batteries on the forklift, and performing maintenance and inspections. Plaintiffs also seek to recover for time they claim to have worked during their unpaid lunch breaks. Plaintiffs also seek other remedies that may be available under Illinois law based on their assertion that they perform work for UTi that has not been fully compensated, including, but not limited to, compensatory damages, reasonable attorneys' fees and costs of the action, and interest. UTi contends that all employees have been paid for all hours that they have worked and are not entitled to receive any additional compensation or recover any money for themselves or Class Counsel based on this lawsuit.
7. Has the Court decided who is right?
The Court has not yet decided whether UTi or the Plaintiffs are correct, or whether UTi has any obligation to pay any employee more than what each has already been paid by the company. By certifying this lawsuit as a class action and issuing this notice, the Court is not suggesting that Plaintiffs will win or lose the case or recover any money at all.
YOUR RIGHTS AND OPTIONS
8. What happens if I do nothing at all?
You don't have to do anything now if you want to keep the possibility of getting money or benefits from this lawsuit if Plaintiffs are successful in establishing that they or you performed work for UTi that has not been compensated. By doing nothing you stay in the Illinois Class. If you stay in and the Plaintiffs obtain money or benefits, either as a result of the trial or a settlement, you will be notified about any potential recovery (or how to ask to be excluded from any settlement). If you do nothing now, regardless of whether Plaintiffs win or lose the trial, you will not be able to sue, or continue to sue, UTi — as part of any other lawsuit — about the same legal claims that are the subject of this lawsuit. You will also be legally bound by all of the Orders the Court issues and judgments the Court makes in this class action. In short, if this lawsuit is not successful, you may be prevented in the future from bringing your own lawsuit against UTi based on the same claims that Plaintiffs have brought in this case, if you believe that UTi has not paid you for all of the hours that you have worked for the company.9. Why would I ask to be excluded?
You are under no obligation to participate in the Class, and can elect to be excluded for any reason that you may have, including your own belief that this lawsuit has no merit. You have the right to ask a lawyer of your own choosing whether you should participate in this lawsuit. If you want to be excluded from the Illinois Class, you simply need to complete and sign the attached Request To Be Excluded, in the manner described in paragraph 10. If you exclude yourself from the Illinois Class — which also means to remove yourself from the Illinois Class, and is sometimes called "opting-out" of the Class — you will not receive any further information about this lawsuit from Class Counsel. If you exclude yourself, you also will not be legally bound by the Court's judgments in this class action, whether favorable or unfavorable.
10. How do I ask the Court to exclude me from the Class?
To ask to be excluded, you must send a completed "Request To Be Excluded" in the form of the attached response document. Be sure to include your name and address, and sign the attached Request form. You must mail your Request To Be Excluded Form postmarked on or before [INSERT DATE 60 days from mailing], to: Nicholson v. UTi Integrated Logistics, Inc. Exclusions, PO Box 679560, Orlando, FL 32867.
THE LAWYERS REPRESENTING YOU
11. Do I have a lawyer in this case?
The Court decided that Richard M. Paul III of the law firm of Stueve Siegel Hanson LLP and Mark Potashnick of Weinhaus Potashnick are qualified to represent you and all Class Members. Together they are called Class Counsel. These law firms are experienced in handling similar cases against other employers. More information about these law firms, their practices, and their lawyers' experience is available at www.stuevesiegel.com and www.fairwagelawyers.com.
12. Should I get my own lawyer?
You have the right to discuss this case with a lawyer of your own choosing and the right to decide whether you want to participate in this lawsuit as a Class Member. In order to stay in this lawsuit as a Class Member, you do not need to hire your own lawyer because Class Counsel would be working on your behalf. But, if you want your own lawyer, you may have to pay that lawyer. For example, you can ask him or her to appear in Court for you if you want someone other than Class Counsel to speak for you. If Class Counsel is successful in recovering money in this lawsuit, Class Counsel may be paid a portion of the money that they recover on your behalf or may seek to have fees paid separately by UTi.
13. Will I have to pay the lawyers and how will the lawyers be paid?
Class Counsel are working on a contingency fee basis. You will not have to pay them anything. They will get paid only if they get money or benefits for the Illinois Class. If that occurs, they may ask the Court for their fees and expenses. If the Court grants Class Counsel's request, the fees and expenses either would be deducted from any money obtained for the Class or paid separately by UTi, or may be a combination of the two.
GETTING MORE INFORMATION
14. Are more details available?
Yes. If you have any questions or require additional information, please contact Plaintiffs' Counsel at:
Stueve Siegel Hanson LLP Weinhaus Potashnick 460 Nichols Road, Suite 200 11500 Olive Boulevard, Suite 133 Kansas City, Missouri 64112 St. Louis, Missouri 63141 (888) 756-6496 (314) 997-9150, ext. 2 Allison Gilbert: stuevesiegel.com Mark Potashnick: markp@wp-attorneys.com THE COURT HAS TAKEN NO POSITION IN THIS MATTER REGARDING THE MERITS OF PLAINTIFFS' CLAIMS OR UTI'S DEFENSES PLEASE DO NOT CONTACT THE COURT CLERK REGARDING THIS MATTER REQUEST TO BE EXCLUDED I do not wish to be a part of the lawsuit referred to as Nicholson v. UTi Integrated Logistics, Inc., et al, Case No. 3:09-cv-722-JPG-DGW. By my signature below, I request to be excluded from these proceedings. Dated: ___________________________________ Name: _________________________________________________ (Signature) Name: _________________________________________________ (Printed) Address: _____________________________________________ _____________________________________________ _____________________________________________ Phone Number: _________________________________ FAILURE TO RETURN THIS REQUEST TO BE EXCLUDED FORM BY [INSERT DATE] MAY RESULT IN A LOSS OF YOUR RIGHT TO BE EXCLUDED FROM THE ILLINOIS CLASS IN THIS LAWSUIT AND BIND YOU TO ANY DECISION THE COURT REACHES IN THIS ACTION. IF YOU WISH TO BE EXCLUDED FROM THIS CASE, RETURN THIS FORM TO: Nicholson v. UTi Integrated Logistics, Inc. Exclusions, PO Box 679560, Orlando, FL 32867