Opinion
CIVIL ACTION No. 08-2063-KHV.
March 13, 2009
MEMORANDUM AND ORDER
On November 24, 2008, the Court certified a class of employees seeking to recover unpaid commissions under the Kansas Wage Payment Act ("KWPA"), K.S.A. § 44-313 et seq. and Kansas contract law. The Court ordered plaintiffs to submit a proposed class notice under Rule 23(b)(3), Fed.R.Civ.P. On January 12, 2009, plaintiffs submitted a proposed notice. This matter comes before the Court on Defendants' Objections To Plaintiffs' Proposed Notice Of Class Action Lawsuit (Doc. #111) filed January 12, 2009. For reasons set forth below, defendants' objections are sustained in part. The Court has appended the approved notice to this memorandum and order.
Legal Standards
Rule 23(c)(2)(B) provides that "[f]or any class certified under Rule 23(b)(3), the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." The notice must clearly and concisely state in plain, easily understood language:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues or defenses;
(iv) that a class member may enter an appearance through an attorney if the member so desires;
(v) that the court will exclude from the class any member who requests exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Rule 23(c)(3).
In addition to the requirements of Rule 23, the due process clause also guarantees unnamed class members the right to notice of certification. DeJulius v. New England Health Care Employees, 429 F.3d 935, 943-44 (10th Cir. 2005), Mullane v. Cent. Hanover Bank Trust Co., 339 U.S. 306, 313 (1950); Eisen v. Carlisle Jacquelin, 417 U.S. 156, 173 (1974). The Federal Rules of Civil Procedure allow the district court discretion in fashioning notice in class actions. Burns v. Copley Pharm., No. 96-8054, 1997 WL 767763, at *3 (10th Cir. Dec. 11, 1997) (citing In re Agent Orange Prod. Liab. Litig., 818 F.2d 145, 168 (2d Cir. 1987).
Analysis
The Court uses plaintiffs' proposed notice as a starting point and addresses each of defendants' objections in turn. See Gieseke v. First Horizon Home Loan Corp., No. 04-2511-CM, 2007 WL 1201493 (D. Kan. Oct. 11, 2006) (citing Heitmann v. City of Chicago, No. 04-C-3304, 2004 WL 178420, at *3 (N. D. Ill. July 30, 2004) (court has duty to ensure notice is fair and accurate but should not alter plaintiff's proposed notice unless necessary)).
1. Disclosure Of Potential Conflicts
Defendants argue that some class members will claim the right to commissions that Sprint paid to other class members, thus creating a potential conflict of interest. Defendants argue that the notice must point out the risk of such a conflict because (1) it is material to a class member's decision whether to remain in the class and (2) ethical rules require that an attorney not represent clients who are adverse to each other without informed consent. See Kan. R. Prof'l Conduct 1.7(a)(1). In response, plaintiffs concede that the notice should disclose the conflict, and propose that the notice include the following language:
The Plaintiffs class members' goal in this case is to determine accurate commission payments. If you believe you may disagree with their data analysis of which commissions should have been paid to which employee, you many want to exclude yourself from the class.
Doc. #112 at 2. Defendants propose the following language:
The Plaintiffs' counsel's goal in this case is to determine what they believe to be accurate commission payments. To that end, Plaintiffs' counsel will argue that their analysis of Sprint's commissions data will control how much each class member should receive in this lawsuit, even if you disagree with how Plaintiffs' counsel's conclusion affects you. If you believe you may disagree with their data analysis of which commissions should be paid to which employee, you may want to exclude yourself from the class.
Doc. #113 at 2-3. The Court finds that the language of plaintiffs' amended proposal (with slight modifications) adequately informs class members of the basis of the potential conflict and therefore incorporates it in the notice.
2. Opt-Out Procedure
a. Inclusion Or Omission Of Opt-Out Form
Plaintiffs' proposed notice provides detailed information as to the opt-out process, including the following explanation of how to opt out:
How do I ask the Court to exclude me from the class?
If you decide to opt out of this lawsuit, you must send a written request to be excluded to Nichols Kaster, PLLP, 4600 IDS Center, 80 South 8th Street, Minneapolis, MN 55402, by fax (612) 215-6870, or by email to fisher@nka.com. You can send a letter with your name, address, and signature, stating that you wish to be excluded from this action, or you can download an Opt-Out form from www.nka.com or www.sprintcommissionlawsuit.com and follow the instructions for printing and submitting the form.
Defendants assert that an opt-out form should be sent to class members with the class notice. Plaintiffs argue that that sending an opt-out form with the notice is likely to confuse class members. Each side cites authority for their position. CompareBafus v. Aspen Realty, Inc., No. CV-04-121-S-BLW, 2007 WL 793633, at *4 (D. Idaho Mar. 14, 2007) (ordering that class notice include opt-out form) and Fradette v. Am. Serv. Corp., No. 76-6373-Civ-CA, 1979 WL 1756, at *1 (S.D. Fla. Aug. 29, 1979) (same) with Patrowicz v. Transamerica Homefirst, Inc., 359 F. Supp.2d 140, 152-53 (D. Conn. 2005) (due process does not require court to include opt-out form in notice to class); Krzesniak v. Cendant Corp., No. C 05-05156 MEJ, 2007 WL 4468678, at *3 (N.D. Ca. Dec. 17, 2007) (separate form would "engender confusion" and may encourage class members to unwittingly opt out of the class) and Canel v. Lincoln Nat'l Bank, 175 F.R.D. 517, 519 (N.D. Ill. 1997) (same). Here, the proposed class notice clearly describes the simple steps to opt-out. The Court finds that it is not necessary to risk creating confusion by including a separate opt-out form.
b. Where To Send Opt-Out Letter Or Form
As set forth above, plaintiffs' proposed notice directs class members to send opt-out letters or opt-out forms to plaintiffs' counsel. Defendants assert that class members should send the opt-out forms to defendants' counsel or to a third-party administrator. Neither side provides authority for their position. The Court find that plaintiffs' proposed notice appropriately directs class members to send opt-out letters or notices to class counsel.
The sample class notice for employment cases on the Federal Judicial Center website lists a dedicated post office box address for opt-out letters. See www.fjc.gov.; see also Adv. Cmte. Notes (2003) to Fed.R.Civ.P. 23(c) (Federal Judicial Center has created illustrative clear notice forms that provide "helpful starting point" for class action notices).
3. Informing Class Members That They May Contact Defendants' Counsel During The Opt-Out Period
Defendants assert that the class notice should inform class members that they are free to contact defense counsel until the end of the opt-out period, citing Krzesniak, 2007 WL 4468678, at *3. See Defendants' Objections (Doc. #111) at 9. In Krzesniak, the court ruled that the class notice should identify defense counsel as a matter of fairness. The court did not, however, direct that the notice inform class members that they could contact defense counsel during the opt-out period. The Court finds that plaintiffs' proposed notice sufficiently identifies defense counsel and overrules defendants' objection on this point.
4. Notice Regarding Retaliation
Plaintiffs propose that the notice include the following:
Can Sprint fire me if I participate in this class action?
No. If you are a current Sprint employee, the law protects you from retaliation for asserting your rights or participating in this action.
Defendants object to this provision, arguing that any reference to retaliation would prejudice defendants. Defendants point out that the Federal Judicial Center's sample notice for an employment discrimination class action does not include any anti-retaliation language. Plaintiffs respond that the information in this provision is accurate, but cite no authority for including such a provision. The Court finds that the notice should not include any anti-retaliation language.
IT IS THEREFORE ORDERED that Defendants' Objections To Plaintiffs' Proposed Notice Of Class Action Lawsuit (Doc. #111) filed January 12, 2009; be and hereby are SUSTAINED in part as set forth herein.
The Court directs counsel for plaintiffs to mail copies of the Notice set forth in Appendix A to each employee identified as a potential member of the class.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
If you worked as a retail employee for a Sprint Nextel retail store at any time since August 2005, and Sprint paid you at least partially by commissions, this class action lawsuit may affect your rights. The Court has authorized this notice. This is not a solicitation from a lawyer.Several former or current Sprint retail employees have sued Sprint Nextel Corporation and Sprint United Management Company ("Sprint"), arguing that because of problems with Sprint's commission systems Sprint has not paid them all of the commissions they were due. The Court has allowed the lawsuit to proceed as a class action on behalf of all employees who were paid in whole or in part by commissions, and who worked for Sprint's retail stores since its merger with Nextel in August 2005. The Court has not yet decided whether Sprint did anything wrong. There is no money available now, and it is uncertain that there will ever be. However, your legal rights will be affected, and you have a choice to make: YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT DO NOTHING: Stay in this lawsuit. Await the outcome. Give up the right to sue Sprint on your own. ASK TO BE Get out of this lawsuit. Await the outcome. Keep the right to sue Sprint EXCLUDED: on your own.
If you do nothing, you will be a part of this lawsuit and you keep the possibility of getting money or other benefits that may come from a trial or a settlement. Similarly, if you do nothing and Sprint wins the lawsuit, you will lose your claims covered by this lawsuit. In short, you give up the right to sue Sprint on your own for the same legal claims in this lawsuit. Even if you remain a part of this lawsuit, it is possible that any claim you have is barred because you have waited too long to bring it. If you ask to be excluded, and the Court awards money or other benefits, you will not be able to ask for a share of the award. Similarly, if you ask to be excluded and Sprint wins the lawsuit, your claims will not be lost as a result of this lawsuit. But you may be able to sue Sprint on your own for the same legal claims that are involved in this lawsuit. It is possible that if you ask to be excluded and do not sue Sprint on your own within the required legal time period you will lose your right to bring those claims.This notice further explains your options. To be excluded from this lawsuit, you must request to be excluded before [INSERT 60 DAY DATE from date of mailing]. The lawyers representing the employees must prove the claims against Sprint at trial. If you do not ask to be excluded, and if the employees win at trial, you will be notified and instructed on how to ask for a share of the judgment. If you are excluded from the case, you cannot ask for a share of the judgment.
WHAT THIS NOTICE CONTAINS
BASIC INFORMATION THE CLAIMS IN THE LAWSUIT THE CLASS MEMBERS YOUR RIGHTS AND OPTIONS THE LAWYERS REPRESENTING YOU THE TRIAL GETTING MORE INFORMATION ............................................................ Page 5 Why did I get this notice? What is this lawsuit about? What is a class action and who is involved? Why is this lawsuit a class action? .................................................... Page 6 What does the lawsuit claim? How does Sprint answer? Has the Court decided who is right? What are the plaintiffs asking for? Is there any money available now? ............................................................ Page 7 Who is in the class? Am I a part of this class? Which current employees are not included? What if I am still not sure if I am included? ...................................................... Page 8 What happens if I do nothing? Why would I ask to be excluded? How do I ask the Court to exclude me from the class? ................................................. Page 9 Do I have a lawyer in this case? Who are Sprint's lawyers in this case? Should I get my own lawyer? How will the lawyers be paid? ................................................................... Page 10 How and when will the Court decide who is right? Do I have to come to the trial? Will I get money after the trial? .................................................... Page 10 How can I learn more?BASIC INFORMATION
1. Why did I get this notice?
You got this notice because Sprint's records show that you either currently work for Sprint or that you have worked for Sprint in the past as a retail employee, and were paid in whole or in part by commissions. The Court has "certified" or allowed a class action lawsuit that may affect you. You have legal rights that you may exercise before the Court holds a trial. The trial will decide whether the claims against Sprint, on your behalf, are correct. Judge Kathryn H. Vratil of the United States District Court for the District of Kansas is overseeing this class action. The lawsuit is known as Roxie Sibley, et al. v. Sprint Nextel Corporation, et al., Civil Action No. 08-2063-KVH.2. What is this lawsuit about?
This lawsuit is about whether Sprint violated its agreement with its employees to pay their commissions and whether it violated Kansas wage payment laws by not paying commissions. Although this case involves employees from all over the United States, the case is brought in Kansas because Sprint is a Kansas corporation and because Sprint's commission agreements include a provision that all lawsuits related to those agreements must be brought in Kansas.
3. What is a class action and who is involved?
In a class action lawsuit, one or more people called "class representatives" sue on behalf of themselves and other people who have similar claims. Together, they are called a "class" or "class members." The class representatives in this case are Roxie Sibley, Jeanne Noel, Ernesto Bennett, Jamie Williams, Greg St. Julien, Tracie Hernandez, John Jasinski, Jay Richie, and Teisha King. They are all current or former Sprint retail employees. The class representatives and the class members are called the Plaintiffs. The companies they sued, Sprint Nextel Corporation and Sprint/United Management Company, are called the Defendants. The judge or jury resolves the claims for everyone in the class — except those who ask to be excluded from the class.
4. Why is this lawsuit a class action?
Rule 23 of the Federal Rules of Civil Procedure governs class actions in federal courts. The Court decided to allow this lawsuit to proceed as a class action because it meets the requirements of Rule 23. Specifically, the court found the following:
There are several thousand current and former Sprint retail employees who were paid at least in part by commissions.
There are facts and legal issues that are common to each of the class members.
The class representatives' claims are typical of the claims of the rest of the class.
The class representatives and the lawyers will adequately represent the class.
The common legal questions are more important than issues that affect only individuals.
A class action will be more efficient than many individual lawsuits.
More information about why the Court is allowing is allowing this lawsuit to be a class action is in the Court's order certifying the class, which is available at: www.sprintcommissionlawsuit.com.
THE CLAIMS IN THE LAWSUIT
5. What does the lawsuit claim?
The plaintiffs say that Sprint violated its agreement to pay commissions to its retail employees. Specifically, they argue that Sprint did not accurately pay its employees for commissions they earned pursuant to their commission agreements because of computer problems related to Sprint's commission systems. The plaintiffs also argue that this violates the Kansas Wage Payment Act, which provides that it is illegal to not pay an employee commissions that he or she has earned. You can read the plaintiffs' complaint at: www.sprintcommissionlawsuit.com.
6. How does Sprint answer?
Although Sprint acknowledges that there have been some issues with its commission system and processes, Sprint says that it has met its obligations under the commission plans. Sprint also argues that even if it did not pay all commissions due to all employees, its recalculation payments have led to Sprint paying all or more of the amount due. You can read Sprint's answer to the plaintiffs' claims at www.sprintcommissionlawsuit.com.
7. Has the Court decided who is right?
No. The Court has not yet decided whether Sprint or the plaintiffs are correct. By certifying a class and issuing this notice, the Court does not intend to suggest that the plaintiffs will win or lose this case. The plaintiffs must prove their claims at a trial.
8. What are the plaintiffs asking for?
The plaintiffs want the Court to decide that Sprint did not comply with its commissions agreements and that by breaking its agreements, it also broke Kansas law. They want the Court to order Sprint to pay the unpaid commissions and to pay the penalties prescribed by the Kansas Wage Payment Act for not paying earned commissions.
9. Is there any money available now?
No. Money or other benefits are not available now because the Court has not yet decided whether the plaintiffs' claims are valid, and the two sides have not settled the case. There is no guarantee that money or other benefits will ever be awarded to the class members. If they are, you will be notified and instructed how to claim your share.
THE CLASS MEMBERS
You need to decide whether you are affected by this lawsuit. This information should help you determine whether you are a class member.10. Who is in the class?
Judge Vratil decided that the following people are members of the class:
"All persons nationwide who worked for Defendants' retail stores since their merger with Nextel, including Retail Store District Managers, Retail Stores Managers, Assistant Retail Store Managers, Lead Retail Consultants, Retail Consultants, Retail Sales Representatives, and other retail employees whose compensation was based in full or in part on commissions."
11. Am I part of this class?
If you meet the above description, you are a class member.
In order to be included, you must meet both the following conditions:
• You work or worked as a retail employee after August 2005, when Sprint merged with Nextel.
• You were compensated at least partially by commissions.
If your job title was Retail Store District Manager, Retail Stores Manager, Assistant Retail Store Manager, Lead Retail Consultant, Retail Consultant, or Retail Sales Representative, and you worked after August 2005, then you are a class member as long as you were paid, at least partially, by commissions.
If your job title is not listed here, but you worked for a Sprint retail store, then you are still a class member as long as you were paid, at least partially, by commissions.
12. Which current and former employees are not included?
If you were a retail employee, but you stopped working before August 2005, you are not a class member. If you are or were a retail employee after August 2005, but you were never paid on a commission basis, you are not a class member.
13. What if I am still not sure if I am included?
If you are still not sure whether you are a class member, you can call or write to the lawyers in this case at the phone number and address listed in question 24.
YOUR RIGHTS AND OPTIONS
You have to decide whether to stay in the class or ask to be excluded before trial, and you have to decide this by [INSERT 60 DAY DATE].14. What happens if I do nothing?
If you do nothing, you stay in the class. You get to keep the possibility of getting money or benefits from this lawsuit. If you stay in and the plaintiffs win at trial or obtain a settlement, then you will be notified and instructed how to claim your share of the judgment or settlement. You can also ask to be excluded from the settlement. If you do nothing, you will not be able to sue Sprint on your own for the same legal claims that are involved in this lawsuit. You will be bound by that judgment and by all the orders the Court issues in this case. You will be able to sue Sprint on your own only for matters unrelated to this lawsuit.
15. Why would I ask to be excluded?
You would ask to be excluded if you do not want to sue Sprint regarding the commission issues involved in this case. Also, Plaintiffs class members' goal in this case is to determine accurate commission payments. If you believe that you may disagree with plaintiffs' counsel's data analysis of which commissions should have been paid to which employees, you may want to exclude yourself from the class. Or, if you already have your own lawsuit against Sprint for the claims involved in this case, and you want to continue your own lawsuit, then you need to exclude yourself from the class. If you choose to exclude yourself — sometimes called "opting out," you will be able to sue Sprint on your own and you will not be bound by the Court's orders and judgments in this class action. However, you will also give up the right to receive your share of any judgment or settlement in this case.
If you exclude yourself to start your own lawsuit against Sprint, then you will have to hire your own lawyer, you will have to pay your lawyer, and you will have to prove your claims in court. If you choose to exclude yourself from the class, you should talk to your lawyer first, because your claims may be subject to a statute of limitations.
16. How do I ask the Court to exclude me from the class?
If you decide to opt out of this lawsuit, you must send a written request to be excluded to Nichols Kaster, PLLP, 4600 IDS Center, 80 South 8th Street, Minneapolis, MN 55402, by fax (612) 215-6870, or by email to fisher@nka.com. You can send a letter with your name, address, and signature, stating that you wish to be excluded from this action, or you can download an Opt-Out form from www.nka.com or www.sprintcommissionlawsuit.com and follow the instructions for printing and submitting the form. Nichols Kaster must receive your request to opt out by [INSERT 60 DAY DATE].
THE LAWYERS REPRESENTING YOU (IF YOU CHOOSE NOT TO BE EXCLUDED)
17. Do I have a lawyer in this case?
Yes, if you choose not to be excluded from the class. The Court decided that the law firms Nichols Kaster, PLLP, of Minneapolis, Minnesota, and Stueve Siegel Hanson LLP, of Kansas City, Missouri are qualified to represent the class members. These lawyers are experienced in handling similar cases against other employers. You can read more about these lawyers at their websites: www.nka.com and www.stuevesiegel.com. The Court has appointed these lawyers to be "class counsel," which means that they will represent you and all the class members. You will not be charged for these lawyers' services.18. Who are Sprint's lawyers in this case?
Sprint Nextel Corp. and Sprint/United Management Co. are represented by Rogers Hardin LLP, 229 Peachtree Street, N.E., Suite 2700, Atlanta, Georgia 30303, and Seyferth, Blumenthal Harris, 300 Wyandotte St., Suite 430, Kansas City, Missouri 64105. You can read more about these lawyers at www.rh-law.com and www.sbhlaw.com.
19. Should I get my own lawyer?
You do not need to hire your own lawyer because class counsel is working on your behalf. If you want your own lawyer, you will have to pay that lawyer. For example, you can ask your lawyer to appear in Court for you and speak on your behalf instead of class counsel.
20. How will the lawyers be paid?
If class counsel are able to get money or other benefits for the class, they may ask the Court for fees and expenses. If the Court awards fees and expenses, this money would either be deducted from the money that the lawyers recover for the class or it would be paid separately by Sprint. You will not be charged for class counsel's services in any other way.
THE TRIAL
21. How and when will the Court decide who is right?
As long as the class action is not resolved by settlement or otherwise, class counsel will have to prove the plaintiffs' claims at a trial. During the trial the judge or a jury will hear all of the evidence and then decide whether the plaintiffs or Sprint are right about the claims in the lawsuit. There is no guarantee that the plaintiffs will get any money or benefits for the class. The Court has not yet set a date for the trial.22. Do I have to come to the trial?
No. You do not need to attend the trial. Class counsel will present the case for you and the other class members, and Sprint's lawyers will present Sprint's defenses. You or your own lawyer are welcome to come at your own expense. If the Court decides that Sprint owes you money for unpaid commissions, you may have to attend to determine the amount of financial damages you can claim. You will receive additional notice if there is any reason for you to come to court.
23. Will I get money after the trial?
If the plaintiffs win at trial or obtain a settlement, you will be notified and instructed about how to claim your share. We do not know how long this will take.
GETTING MORE INFORMATION
24. How can I learn more?
Visit www.sprintcommissionlawsuit.com to learn more about this case and to read updates on the status of the case. You may also call class counsel at 1-877-448-0492, write to them at Nichols Kaster, PLLP, 4600 IDS Center, 80 South Eighth Street, Minneapolis, MN, 55402, email them at fisher@nka.com, or visit their website at www.nka.com.