EXHIBIT 10.1
JOINT STIPULATION OF SETTLEMENT
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ERRIC WALKER, STEVE RICKETTS, )
and VICKIE ATCHLEY, on behalf of)
themselves and all others ) CASE NO. 3-02-1078
similarly situated, )
) JUDGE TRAUGER
Plaintiffs, )
) JOINT STIPULATION
vs. ) OF SETTLEMENT
)
RYAN'S FAMILY STEAK )
HOUSES, INC., )
)
Defendant. )
________________________________)
This Joint Stipulation of Settlement ("Joint Stipulation")
is made and entered into by and between defendant RYAN'S
RESTAURANT GROUP, INC. f/k/a RYAN'S FAMILY STEAK HOUSES, INC.,
("Ryan's"), on the one hand, and ERRIC WALKER, STEVE RICKETTS,
and VICKIE ATCHLEY ("Representative Plaintiffs" or
"Plaintiffs"), on behalf of themselves and on behalf of all
others similarly situated as hereinafter more particularly
defined (the "Eligible Class"), on the other hand, in the action
pending in the United States District Court for the Middle
District of Tennessee (the "Court"), Case No. 3-02-1078 (the
"Action") subject to the terms and conditions hereof.
1. Definitions: For the purposes of this Joint
Stipulation, the following terms shall carry the following
accompanying definitions:
a. "Action": Walker, et. al., v. Ryan's Family
Steak Houses, Inc., United States District Court for the Middle
District of Tennessee (the "Court"), Case No. 3-02-1078.
b. "Claim Deadline": The date by which Claim Forms
must be post-marked or received by the Settlement Administrator,
namely, 60 days from original mailing of Notice, in order for
Eligible Class Members to be included in the Settlement Class.
c. "Claim Form": The form attached hereto as
Exhibit 2.
d. "Claim Share": The amount of money allocated to
each Settlement Class Member pursuant to Section 8(d) of this
Joint Stipulation.
e. "Class Counsel": Counsel for the Plaintiffs,
Stewart, Estes & Donnell.
f. "Complaint": The Complaint filed by the
Representative Plaintiffs in the Action.
g. "Court": The United States District Court for
the Middle District of Tennessee.
h. "Disbursement Date": The date which is fifteen
(15) business days after the date upon which the Final Order of
Dismissal entered by the Court has become final and non-
appealable.
i. "Eligible Class" and/or "Eligible Class
Member(s)": Present and former hourly-paid restaurant employees
(including, but not limited to, servers, cooks, meat cutters,
dishwashers, and other hourly-paid employees) who were employed
by Ryan's for any period of time between November 12, 1999 and
August 2, 2005 ("Recovery Period").
j. "Final Order of Dismissal": The Order attached
hereto as Exhibit 4 dismissing with prejudice the claims of the
Settlement Class who are to be identified in a spreadsheet
attached to said Order.
k. "Notice": The Notice of Settlement form attached
hereto as Exhibit 1.
l. "Parties": The Representative Plaintiffs and
Ryan's.
m. "Questionnaire": The form attached hereto as
Exhibit 3.
n. "Recovery Period": November 12, 1999 through
August 2, 2005.
o. "Representative Plaintiffs": The individuals who
are the named Plaintiffs on the Complaint filed in the Action;
namely, Erric Walker, Steven Ricketts, and Vickie Atchley.
p. "Ryan's Counsel": Counsel for the Defendant,
Nexsen Pruet, LLC, and Constangy, Brooks & Smith, LLC.
q. "Settlement": The agreement between the Parties
set forth in this Joint Stipulation and in the settlement
confirmation letter dated February 7, 2006 attached hereto as
Exhibit 5.
r. "Settlement Administrator": Garden City Group,
Inc., ("Garden City"),
P. O. Box 91136, Seattle, Washington 98111-9236.
s. "Settlement Class" or "Settlement Class
Member(s)": Those Members of the Eligible Class who timely file
Claim Forms.
2. On November 12, 2002, the Representative Plaintiffs,
Erric Walker, Steve Ricketts, and Vickie Atchley brought this
lawsuit in the United States District Court for the Middle
District of Tennessee against Defendant Ryan's Family Steak
Houses, Inc., ("Ryan's") on behalf of themselves and all other
past and present similarly-situated restaurant employees of
Ryan's who were paid on an hourly basis in any position
(including, but not limited to, servers, cooks, meat cutters,
dishwashers, and other hourly-paid employees), alleging that
they are owed unpaid wages and overtime pay under the federal
Fair Labor Standards Act ("FLSA").
Ryan's denies Plaintiffs' allegations and denies any
wrongdoing, and has vigorously opposed the claims made against
it. This Settlement is a compromise of disputed claims and
defenses and should not be construed as any evidence of
wrongdoing whatsoever by Ryan's.
3. The Parties have conducted significant investigation of
the facts and law during the prosecution of this Action. Such
investigation has included, inter alia, the exchange of
information pursuant to informal and formal discovery;
depositions of the Representative Plaintiffs, and of corporate
representatives of Ryan's and EDSI (Ryan's arbitration service
provider); extensive interviews and/or surveys of certain
Eligible Class Members; numerous meetings and conferences between
representatives of the Parties, and interviews of numerous
potential witnesses. Class Counsel and Ryan's Counsel have
further investigated the applicable law as applied to the facts
discovered regarding the causes of action and damages claimed in
the Action, and the potential defenses thereto. In addition, the
Parties engaged in an extensive session of mediated negotiation
of this dispute conducted by Attorney Hunter Hughes in Atlanta,
Georgia, on September 22, 2005, and thereafter continued intense
and arms-length negotiations for a period of five months which
culminated in this Settlement.
In addition to investigation and discovery related to the
merits of the Action, the Parties vigorously litigated the
validity of arbitration agreements entered between Eligible Class
Members and EDSI, which resulted in two reported decisions, viz.,
Walker v. Ryan's Family Steak Houses, Inc., 289 F. Supp. 2d 916
(M.D. Tenn. 2003), and Walker v. Ryan's Family Steak Houses,
Inc., 400 F. 3d 370 (6th Cir. 2005). Litigation of this issue
culminated in a Petition for Certiorari filed by Ryan's in the
United States Supreme Court in which Ryan's asked the Supreme
Court to review and overturn this Court and the Sixth Circuit
Court of Appeals decisions, which Petition was denied at 126
S.Ct. 730 (2005).
4. The Parties desire fully, finally, and forever to
settle, compromise, and discharge the disputes and claims arising
from or raised in the Complaint, and intend to accomplish the
full and complete settlement and release of certain claims of
Settlement Class Members related to this Action as set forth in
Section 16.
5. Eligible Class Member(s) are eligible to participate in
this Settlement by virtue of having been employed by Ryan's
during the Recovery Period, and by meeting the other requirements
of the Settlement.
6. Class Counsel have formally and informally investigated
the facts of the Action, including extensive interviews and/or
surveys of Eligible Class Members and depositions of the parties,
including the Representative Plaintiffs and persons designated by
Defendants as those persons most knowledgeable regarding the
nature and size of the Eligible Class and the average wages,
positions, and workweeks worked by Eligible Class Members during
the Recovery Period. Class Counsel has diligently investigated
the claims asserted in the Complaint against Ryan's. Based on
their own independent investigation and evaluation, Class Counsel
is of the opinion that the Settlement is fair, reasonable,
adequate, and is in the best interest of the Settlement Class in
light of all known facts and circumstances, including the risk of
significant delay, further litigation and the numerous defenses
and the actual and potential issues Ryan's is and/or would
assert, including decertification of the conditionally
"certified" similarly situated class.
7. The Parties agree to cooperate and to take all steps
reasonable, necessary and appropriate to dismiss with prejudice
the Complaint, and all causes of action contained therein, so as
to avoid the necessity of further expense and litigation in the
above-referenced matter.
TERMS AND SETTLEMENT
8. NOW, THEREFORE, in consideration of the mutual
covenants, promises and warranties set forth herein, the Parties
agree as follows:
a. That the Action and all claims for minimum wages
or overtime during the Recovery Period for all Settlement Class
Members who participate in this Settlement, whether based on
federal or state laws, will be dismissed on the merits with
prejudice, subject to the terms and conditions set forth in, and
approval by the Court of, this Joint Stipulation.
b. Neither Party shall have the right to appeal any
order approving this Joint Stipulation, and all parties expressly
waive the right to appeal such order.
c. In consideration for the release of claims by the
Settlement Class, Ryan's agrees to create a settlement fund of no
less than Two Million Dollars ($2,000,000), and no more than Nine
Million Dollars ($9,000,000), from which Eligible Class Members
who timely file a Claim Form will be paid. The total amount
Ryan's actually ends up paying will depend on the actual
participation level in the Settlement by Eligible Class Members;
however, in no event will the total amount paid by Ryan's to
Settlement Class Members be less than Two Million Dollars
($2,000,000), or exceed Nine Million Dollars ($9,000,000).
Settlement Class Members will receive a portion of the settlement
fund based upon the following formula.
d. Ryan's agrees to pay Settlement Class Members an
amount equivalent to $18.25 for each workweek of active
employment with Ryan's during the Recovery Period, provided the
participation rate is such that the aggregate claims of
Settlement Class Members total between Two Million Dollars
($2,000,000) and Nine Million Dollars ($9,000,000). The number
of workweeks allocated to each Settlement Class Member will be
determined by Ryan's payroll records, and will be equal to the
number of workweeks for which the employee received a paycheck
for hours actually worked during the Recovery Period. In the
event the participation level is such that the aggregate claims
made by Settlement Class Members total less than Two Million
Dollars ($2,000,000), the Claim Shares received by Settlement
Class Members will exceed $18.25 per workweek. In the event the
participation rate is such that the aggregate claims made by
Settlement Class Members total more than Nine Million Dollars
($9,000,000), the amount received by Settlement Class Members
will be less than $18.25 per workweek. The amounts paid to
Settlement Class Members will be paid without offset or deduction
for litigation costs, attorneys' fees, enhancement awards, or the
costs of administering this Settlement; however, appropriate
taxes will be withheld in accordance with Section 14(b).
9. Ryan's agrees to pay the cost of mailing the Notice to
approximately 264,000 Eligible Class Members, and agrees to hire
and pay the Settlement Administrator to provide additional
settlement administration services and to handle the remaining
claims process. None of the settlement administration costs
incurred in this case will be paid by Settlement Class Members or
deducted from any sum Ryan's is obligated to pay as a result of
this Settlement.
10. Ryan's agrees that Settlement Class Members will pay no
costs or attorneys fees from their Claim Shares or otherwise, and
that Ryan's will pay costs and attorneys' fees separate from
amounts received by Settlement Class Members. The attorneys'
fees and costs Ryan's has agreed to pay are based upon the
considerable work Class Counsel has performed, and will continue
to perform into the foreseeable future, on behalf of Settlement
Class Members. Specifically, Plaintiffs' Counsel have been
investigating and working on this lawsuit since calendar year
1999, and have spent thousands of hours working on all aspects of
this case, including successfully opposing a Petition for
Certiorari filed by Ryan's in the United States Supreme Court in
which Ryan's asked the Supreme Court to review and overturn this
Court's and the Sixth Circuit Court of Appeals' decisions
invalidating arbitration agreements between Ryan's/EDSI and
Eligible Class Members. Based upon the work performed by Class
Counsel and the success achieved on behalf of Settlement Class
Members, Ryan's agrees to pay Class Counsel between Three and One-
Half Million ($3,500,000) and Four and One-Half Million Dollars
($4,500,000)1 for all attorneys' fees, costs, and expenses
incurred in connection with Class Counsels' work in this case
since 1999 through the conclusion of this case and the resolution
of the settlement administration process. Ryan's has agreed to
pay these fees, costs and expenses in addition to amounts paid to
Settlement Class Members; therefore, no portion of the attorneys'
fees, costs or expenses will be paid by Settlement Class Members
or deducted from the Settlement proceeds.
11. Ryan's agrees to pay an additional One Hundred Thousand
Dollars ($100,000) in enhancement payments divided among
approximately 43 Settlement Class Members who opted-into this
case early on and who provided timely assistance and help
essential in producing a favorable result on behalf of the
Settlement Class by participating in the discovery process,
giving depositions under oath, providing evidentiary support for
the case, submitting declarations, counseling and attending
meetings with Class Counsel, making strategic decisions on behalf
of the class, assisting in and/or attending mediation sessions
with Ryan's, and providing other necessary assistance and
services. Ryan's agrees to pay these enhancement payments in
addition to amounts paid to Settlement Class Members and to Class
Counsel; therefore, no portion of the enhancement payments will
be paid by participants in this Settlement or deducted from the
Settlement proceeds.
THE SETTLEMENT ADMINISTRATOR
12. a. The Settlement Administrator shall be Garden City
Group, Inc., ("Garden City"), P. O. Box 91136, Seattle,
Washington 98111-9236. In the event Garden City is unable to
serve as Settlement Administrator, Ryan's and/or Ryan's Counsel
shall select, with the consent of Class Counsel which consent
shall not unreasonably be withheld, another individual or entity
to administer the Settlement (the "Settlement Administrator").
b. Ryan's shall timely provide all records and/or
information to the Settlement Administrator necessary to permit
the expeditious and proper performance of its duties. In
addition to any other duties or obligations outlined in this
Joint Stipulation, the duties of the Settlement Administrator
shall include: (i) the mailing of Notices, Claim Forms and
Questionnaires to Eligible Class Members; (ii) taking all steps
reasonably necessary to ensure that each Eligible Class Member
timely receives a Notice, Claim Form and Questionnaire; (iii)
communicating with Eligible and/or Settlement Class Members
regarding the claims process, corrections and/or additional
information needed for Claim Forms, or for any other reasons
deemed reasonably necessary by the Settlement Administrator in
order to ensure that the highest percentage of Eligible Class
Members receive the Notice, Claim Form and Questionnaire, and
that Eligible Class Members who wish to participate in this
Settlement are permitted to do so; (iv) the utilization of
available methods to ensure the most up-to-date and accurate
addresses for Eligible Class Members; (v) conducting address
searches on all returned, undelivered mail in a timely fashion,
and re-mailing Notices, Claim Forms and Questionnaires to
Eligible Class Members for whom addresses are found; (vi)
providing toll-free interactive voice recording telephone
support, which includes an option for accessing live operator
assisted support during regular business hours; (vii) the
maintenance of any database deemed reasonably necessary by the
Settlement Administrator to fulfill its duties; (viii) the
receipt and control of all returned Claim Forms and/or
Questionnaires and documentation of same; (ix) the calculation of
Claim Shares; (x) the timely mailing and, if necessary, re-
mailing of Claim Share checks to Settlement Class Members; (xi)
any and all other duties as agreed to or as is necessary
consistent with the terms, purposes and goals of this Joint
Stipulation.
c. Neither Ryan's nor Plaintiffs, nor their
respective Counsel, shall interfere in any way with the
performance of the Settlement Administrator's duties with the
purpose and/or effect of limiting or attempting to limit or
interfere with the submission or receipt of Claim Forms and/or
Questionnaires from Eligible Class Members, or with the inclusion
of Eligible Class Members desiring to participate in this
Settlement. Neither Party shall engage in conduct intended to
materially affect the level of participation of Eligible Class
Members or the opt-in rate. Class Counsel shall not engage in
any conduct which could adversely and materially affect the
completion and/or return of the Questionnaire that is to be
mailed with the Notice and Claim Forms.
d. All disputes, if any, relating to the Settlement
Administrator's ability to perform its duties shall be referred
to the Court, which will have continuing jurisdiction over the
terms and conditions of this Joint Stipulation.
SETTLEMENT ADMINISTRATION/CLAIMS PROCESS
13. a. Within fifteen (15) business days after Court
approval of this Joint Stipulation, the Notice in the form
attached hereto as Exhibit 1, Claim Form in the form attached
hereto as Exhibit 2,2 and the Questionnaire in the form attached
hereto as Exhibit 3 shall be forwarded, via first class mail, by
the Settlement Administrator to each Eligible Class Member
contained in the database furnished to the Settlement
Administrator by Ryan's, which database shall include at least
263,844 Eligible Class Members.
b. The parties further agree that the Questionnaire
attached as Exhibit 3 will be mailed to Eligible Class Members
with the Notice and Claim Form (Exhibits 1 and 2). A postage pre-
paid envelope addressed to the Settlement Administrator will be
provided to Eligible Class Members (at Ryan's expense) for use in
mailing completed Questionnaires and Claim Forms to the
Settlement Administrator. Ryan's agrees that completion and
return of the Questionnaire by Eligible or Settlement Class
members is entirely voluntary; that responses to the
Questionnaire cannot (and will not) be used in the administration
of the settlement claims process; that responses to the
Questionnaire cannot (and will not) be used to challenge any
Eligible or Settlement Class Member's choice or right to
participate in the Settlement; and that responses to the
Questionnaire cannot (and will not) be used by Ryan's as a basis
to initiate any civil, criminal, administrative or other action
against Eligible Class Members, Settlement Class Members, and/or
any other individual who responds to the Questionnaire.
c. Within ten (10) days following the mailing of
Exhibits 1-3, the Settlement Administrator shall provide Class
Counsel with a certification verifying the total number of
potentially recoverable workweeks set forth and/or identified on
Claim Forms mailed to Eligible Class Members.
d. For an Eligible Class Member to participate in the
Settlement Class, he or she must sign, date and mail the
completed Claim Form by postage pre-paid U.S. first class mail,
send it by fax, or otherwise forward the Claim Form to the
Settlement Administrator prior to the Claim Deadline; except that
the Claim Form of any Eligible Class Member which was returned
undeliverable after the initial mailing, and thereafter is re-
mailed by the Settlement Administrator within the 21 days
preceding the Claim Deadline, will be accepted as timely if it is
transmitted or mailed to the Settlement Administrator within the
15-day period following the Claim Deadline. The U.S.P.S. date
stamp, or other documented transmittal date, will determine
timeliness of submissions.
e. The Settlement Administrator will run the Eligible
Class Member contact/address list through the National Change of
Address Data Base maintained by the U.S.P.S. prior to the mailing
of the Notices and Claim Forms. In addition, Class Counsel will
be permitted to supply the Settlement Administrator updated
contact information for the current Plaintiffs who have opted-in
to the Action. Ryan's will provide the Settlement Administrator
with the social security numbers of those Eligible Class Members
whose Notices, Claim Forms and Questionnaires are returned to the
Settlement Administrator as undeliverable by the U.S.P.S.; the
Settlement Administrator will utilize this additional information
in an effort to obtain current mailing address information, and
will then conduct one additional re-mailing of the Notices, Claim
Forms and Questionnaires based on corrected mailing addresses
resulting from this process.
f. The Settlement Administrator shall provide copies
of the filed Claim Forms to Class Counsel in batches as they are
received on a weekly basis, along with any accompanying documents
or other material received from Eligible Class Members, excluding
returned Questionnaires.
g. Eligible or Settlement Class Members who dispute
their dates of employment or the number of active workweeks with
Ryan's during the Recovery Period must provide convincing
documentary or other evidence (other than an unsubstantiated
belief or memory) that will establish that the date(s) indicated
on the Claim Form are incorrect; otherwise, Ryan's records will
be presumed to be correct. Ryan's agrees to provide to Class
Counsel the actual payroll and employment records of Eligible or
Settlement Class Members who dispute the accuracy of their Claim
Form information, or who did not receive a Claim Form but claim a
right to participate in the Settlement. In the event of any such
disputes, the Settlement Administrator shall make the final
determination, subject to review, if necessary, by the Court.
Additionally, Ryan's and/or the Settlement Administrator agree to
provide Claim Form data3 to Class Counsel to verify the
eligibility and entitlement, if any, of a) Eligible Class Members
who contact Class Counsel regarding the Settlement and b)
Settlement Class Members and/or persons who file Claim Forms.
h. Within twenty (20) days following the Claim
Deadline, the Settlement Administrator shall provide to Class
Counsel and Ryan's Counsel (and the Court, if requested) a
declaration of due diligence and proof of mailing certifying (i)
the mailing of Notices, Claim Forms and Questionnaires to
Eligible Class Members; (ii) attempts to locate Eligible Class
Members; (iii) the total number of potentially recoverable
workweeks set forth and/or identified on Claim Forms mailed to
Eligible Class Members; (iv) the total number of recoverable
workweeks actually claimed by Settlement Class Members; and (v)
that a spreadsheet attached to such declaration contains an
accurate listing of the identities of the Settlement Class.
i. As soon as practicable following receipt of the
Settlement Administrator's declaration described in Section 13(h)
and prior to the mailing of settlement checks to Settlement Class
Members, the Parties shall file the Final Order of Dismissal in
the form attached hereto as Exhibit 4, which shall attach and
incorporate the spreadsheet described in Section 13(h)(v) which
sets forth the identities of the Settlement Class Members whose
claims are being dismissed with prejudice.
PAYMENTS TO SETTLEMENT CLASS MEMBERS
14. a. On the Disbursement Date, the Settlement
Administrator shall send settlement checks constituting the net
(after withholding) Claim Share amounts to Settlement Class
Members via first class mail. Such settlement checks shall note
on their face that they are void if not cashed within ninety (90)
days of issuance.
b. The Parties agree that IRS Forms W-2 and 1099 will
be distributed to Settlement Class Members reflecting the
payments they receive under the Settlement, and that one-half of
the settlement sum received by such Settlement Class Members will
be considered as taxable wages from which withholdings will be
made, while the remaining half will be considered liquidated
damages from which no withholding will be made.
c. In the event settlement checks are returned to the
Settlement Administrator with a forwarding address, the
Settlement Administrator shall promptly re-mail such checks to
Settlement Class Members at the newly identified forwarding
addresses. If unclaimed checks representing claimed settlement
funds remain even after such re-mailing, the Settlement
Administrator shall promptly notify Class Counsel as to the
identity of all Settlement Class Members who have unclaimed
checks. Class Counsel shall have forty-five (45) days from
notification of such unclaimed checks within which to provide the
Settlement Administrator with corrected mailing addresses for
such unclaimed checks. The Settlement Administrator shall
conduct one additional remailing of unclaimed settlement checks
for each Settlement Class Member that Class Counsel provides a
corrected mailing address. If the Settlement Class Member cannot
thereafter be located, or Settlement Class Member Claim Share
checks remain uncashed after they have expired, then the
Settlement Class Member's Claim Share shall be forfeited and
Class Counsel shall make a distribution of the Claim Share to
National CASA (Court Appointed Special Advocates for Children), a
duly registered Section 501(c)(3) charity and non-profit
organization.
d. As soon as practicable, the Settlement
Administrator shall provide to Class Counsel and Ryan's Counsel
(and the Court, if requested) a declaration verifying the
identities of Settlement Class Members to whom settlement checks
were mailed, the date(s) of mailing, and the amount of the
checks.
PAYMENT OF ENHANCEMENT AWARDS AND COSTS/ATTORNEYS FEES
15. a. On the Disbursement Date, the Settlement
Administrator and/or Ryan's shall forward to the attention of
Class Counsel separate checks constituting the enhancement
payments described in Section 11 (totaling $100,000) made payable
to the approximately 43 recipients thereof in amounts to be
provided by Class Counsel. These payments shall be in addition
to any Claim Share the recipients of such enhancement payments
may receive based on his or her status as a Settlement Class
Member.
b. Class Counsel shall be solely responsible for
distributing the checks constituting enhancement payments to the
recipients thereof. If a recipient of an enhancement payment
cannot be located by Class Counsel within a reasonable period of
time, then his or her enhancement payment shall be forfeited, and
Class Counsel shall make a cy-pres distribution of such
enhancement payment to National CASA (Court Appointed Special
Advocates for Children), a duly registered Section 501(c)(3)
charity and non-profit organization.
c. The Parties agree that IRS Forms 1099 will be
distributed to the recipients of enhancement payments reflecting
the amount of enhancement payments made to them; none of the
enhancement payments shall be treated as damages for wages and
shall be subject to 1099 reporting only. IRS Forms 1099 will be
sent to Class Counsel reflecting the amount of costs and
attorneys' fees paid to Class Counsel by Ryan's in connection
with this settlement; the Parties acknowledge and agree that
these costs and attorneys' fees are being paid directly to Class
Counsel in lieu of any statutory claim that the Settlement Class
Members might have for the recovery or reimbursement of their
reasonable attorneys' fees and costs.
d. On the Disbursement Date, the Settlement
Administrator and/or Ryan's shall pay Class Counsel's attorneys'
fees, costs and expenses (collectively, the "Attorneys' Fees") in
an amount determined in accordance with Section 10.
e. Although the Attorneys' Fees will be paid directly
to Class Counsel by Ryan's and/or the Settlement Administrator,
separate from the Claim Shares paid to the Settlement Class,
Ryan's has been advised by its tax advisors that it must report
the Attorneys' Fees paid to Class Counsel as income to the
Settlement Class Members. Therefore, Ryan's will send a Form
1099 to the IRS and to each Settlement Class Member reflecting
that Member's pro rata share of the total Attorneys' Fees paid to
Class Counsel by Ryan's; each Settlement Class Member's pro rata
share shall be determined by multiplying the total Attorneys'
Fees paid to Class Counsel by a fraction, the numerator of which
shall be the dollar amount of the particular Settlement Class
Member's Claim Share, and Enhancement Award, if any, and the
denominator of which is the sum of the total amount of all Claim
Shares paid to the Settlement Class pursuant to Section 8(d),
plus the $100,000 Enhancement Award payments paid pursuant to
Section 15(a). This Form 1099 shall be separate from and in
addition to the Form 1099 sent to the Settlement Class Members
pursuant to Section 14(b), although they may be mailed together,
and shall be accompanied by the letter from Class Counsel
attached hereto as Exhibit 7.
RELEASE BY THE CLASS
16. Contingent upon the performance by Ryan's and the
Settlement Administrator of their respective undertakings
pursuant to this Joint Stipulation, including but not limited to
the payment to the Settlement Class Members of their respective
Claim Shares, all claims for minimum wages and/or overtime during
the Recovery Period for all Settlement Class Members, whether
based on federal or state laws (as well as derivative claims
related thereto such as attorneys' fees, liquidated damages, and
interest), are being released as part of the Settlement, and the
claims asserted in the Action will be dismissed on the merits
with prejudice. All Settlement Class Members will thereafter be
barred from instituting or prosecuting any other action against
Ryan's asserting or relating to any of the released claims. The
release does not apply to unrelated claims, such as claims for
wrongful discharge, retaliation, workers compensation, or other
claims other than those for unpaid overtime and minimum wage
claims (as well as derivative claims related thereto such as
attorneys' fees, liquidated damages, and interest) arising during
the Recovery Period of November 12, 1999 to August 2, 2005; nor
does it apply to any claims pertaining to events occurring after
the Recovery Period.
DUTIES OF THE PARTIES PRIOR TO COURT APPROVAL
17. Promptly upon the Parties' execution of this Joint
Stipulation, the Parties shall apply to the Court for the entry
of an Order, attached as Exhibit 6, seeking the following:
a. Approval of this Joint Stipulation and of the
Settlement described herein.
b. Approval as to form and content of the proposed
Notice attached hereto as Exhibit 1.
c. Approval as to form and content of the proposed
Claim Form attached hereto as Exhibit 2.
d. Approval as to form and content of the proposed
Questionnaire attached hereto as Exhibit 3.
e. A direction to mail the Notice, Claim Form and
Questionnaire by first class mail to Eligible
Class Members.
NO RETALIATION OR INTIMIDATION PERMITTED
18. Ryan's has agreed: that it will not contact employees
eligible to participate in this Settlement for the purpose of
attempting to influence them or to cause them not to participate
in this Settlement; that it will not take any adverse employment
action, or otherwise target, retaliate or discriminate against
any employee who elects or indicates an intention to participate
in this Settlement because of their decision to participate or
not participate in this Settlement; and that its officers,
directors, management employees and/or agents, will use their
best efforts neither to make nor cause to be made any
communication, either directly or indirectly, whether written,
verbal, electronic, or otherwise, to any Ryan's management
personnel which would permit the identification of any employee
who elects or declines to participate in the Settlement. Ryan's
will treat the decision of individual employees to elect or
decline to participate in the Settlement as confidential, and
will disclose such decision only on a "need to know" basis, or as
may be required by law.
PARTIES' AUTHORITY
19. The signatories hereto hereby represent that they are
fully authorized to enter into this Joint Stipulation and bind
Ryan's and Plaintiffs to the terms and conditions hereof.
MUTUAL FULL COOPERATION
20. Ryan's and Plaintiffs agree to cooperate fully with
each other to accomplish the terms of this Joint Stipulation,
including but not limited to, executing such documents and taking
such other action as may reasonably be necessary to implement the
terms of this Joint Stipulation. Ryan's and Plaintiffs shall use
their best efforts to effectuate the goals, obligations and
duties contemplated in this Joint Stipulation, or as otherwise
required by the Court. As soon as practicable after execution of
this Joint Stipulation, both Ryan's and Plaintiffs will take all
reasonably necessary steps to secure the Court's approval of this
Joint Stipulation. Further, Ryan's and Plaintiffs agree to
cooperate in the settlement administration and claims process.
ENFORCEMENT ACTIONS
21. In the event that Ryan's or any Settlement Class Member
or Plaintiff institutes any legal action, arbitration or other
proceeding against the other to enforce the provisions of this
Joint Stipulation or to declare rights and/or obligations under
this Joint Stipulation, the successful litigant shall be entitled
to recover from the unsuccessful litigant reasonable attorneys'
fees and costs, including expert witness fees incurred in
connection with any enforcement action. In the event Ryan's
fails to timely pay or fund the monies it is required to pay by
terms of this Joint Stipulation, Plaintiffs may, at their option,
declare all agreements or Joint Stipulations regarding settlement
between the Parties null and void or, alternatively, enforce the
provisions of this Joint Stipulation.
CONSTRUCTION
22. Ryan's and Plaintiffs agree that the terms and
conditions of this Joint Stipulation are the result of lengthy,
intensive arms-length negotiations between them, and that this
Joint Stipulation shall not be construed in favor of or against
either Ryan's or Plaintiffs by reason of the extent to which
they, or their respective counsel, participated in the drafting
of this Joint Stipulation.
CAPTIONS AND INTERPRETATIONS
23. Paragraph titles or captions contained herein are
inserted as a matter of convenience and for reference, and in no
way define, limit, extend or describe the scope of this Joint
Stipulation or any provision hereof. Each term of this Joint
Stipulation is contractual and not merely a recital.
MODIFICATION
24. This Joint Stipulation may not be changed, altered, or
modified, except in writing and signed by Ryan's and Plaintiffs,
or by their respective duly authorized agents. This Joint
Stipulation may not be discharged except by performance in
accordance with its terms or by a writing signed by Ryan's and
Plaintiffs, or by their respective duly authorized agents.
INCORPORATION OF SETTLEMENT LETTER
27. This Joint Stipulation incorporates, and is intended to
be read consistently and in pari materia with, the terms set
forth in the Parties' settlement confirmation letter dated
February 7, 2006 (and Exhibits A-C which accompany it), attached
hereto as Exhibit 5.
BINDING ON ASSIGNS
28. This Joint Stipulation shall be binding upon and inure
to the benefit of Ryan's and Plaintiffs and their respective
heirs, trustees, executors, administrators, successors and
assigns.
COUNTERPARTS
29. This Joint Stipulation may be executed in counterparts,
including fax counterparts, and when at least one such
counterpart has been signed and delivered, each counterpart shall
be deemed an original, and, when taken together with other signed
counterparts, shall constitute one Joint Stipulation, which shall
be binding upon and effective as to Ryan's and Plaintiffs.
DATED: March 17, 2006 M. REID ESTES, JR.
STEWART, ESTES & DONNELL
By: /s M. Reid Estes, Jr.
M. Reid Estes, Jr.
Attorneys for the Representative
Plaintiffs
and the Class
DATED: March 17, 2006 E. GRANTLAND BURNS, ESQ.
NEXSEN PRUET, LLC
By: /s E. Grantland Burns (With
Permission)
E. Grantland Burns, Esq.
James M. Coleman, Esq.
Constangy, Brooks & Smith, LLC
William A. Blue, Esq.
Constangy, Brooks & Smith, LLC
Attorneys for the Defendant
_______________________________
1 The amount paid as costs/attorneys' fees to Class Counsel will
be determined based upon the level of Eligible Class Member
participation and in accordance with the Parties' settlement
confirmation letter dated February 7, 2006, attached hereto as
Exhibit 5.
2 The Parties anticipate that modest, mutually consensual
revisions to these Exhibits may be necessary to conform to the
realities of, or changes in, the claim process as suggested by
the Settlement Administrator or otherwise.
3 "Claim Form data" refers to the payroll and/or employment
history in the format provided by Ryan's to the Settlement
Administrator.