in the united states district court for the middle … · 2019. 5. 20. · in the united states...

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

CLIFTON CUNNINGHAM and DON TEED, on behalf of themselves and all others similarly situated,

Plaintiffs, -against- FEDERAL EXPRESS CORPORATION, d/b/a FEDEX EXPRESS, et al.,

Defendants.

No. 17 Civ. 845

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION

FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, CONDITIONAL CERTIFICATION OF THE SETTLEMENT CLASS, APPOINTMENT

OF PLAINTIFFS’ COUNSEL AS CLASS COUNSEL, AND APPROVAL OF THE PROPOSED NOTICE OF SETTLEMENT

AND CLASS ACTION SETTLEMENT PROCEDURE

Case 3:17-cv-00845 Document 69 Filed 04/19/19 of 33 PageID #: 676

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TABLE OF CONTENTS

MEMORANDUM IN SUPPORT OF UNOPPOSED MOTION ............................................... 1

I. INTRODUCTION ...................................................................................................... 1

II. BACKGROUND ........................................................................................................ 3

A. Factual Background ......................................................................................... 3

B. Procedural Background .................................................................................... 4

III. THE PROPOSED SETTLEMENT .............................................................................. 6

A. The Settlement Class and Retiree Subclass ........................................................ 6

B. The Weekly Earnings Methodologies ................................................................ 6

C. Changes to Future Benefits ............................................................................... 7

D. Payments to Class Members ............................................................................. 8

E. The Notice and Settlement Administration Process ............................................ 9

F. Releases ........................................................................................................ 10

G. Attorneys’ Fees, Litigation Expenses, and Service Payment ............................. 10

H. Settlement Claims Administrator .................................................................... 10

IV. ARGUMENT ........................................................................................................... 11

A. Certification of the Rule 23 Class Is Proper. .................................................... 11

1. Rule 23(a) Is Satisfied. ........................................................................ 11

2. Certification is Proper Under 23(b)(1) .................................................. 14

3. Certification Is Proper Under Rule 23(b)(2) ......................................... 17

B. Class Counsel Should Be Appointed. .............................................................. 18

C. Preliminary Approval Should be Granted. ....................................................... 19

1. There is No Risk of Fraud or Collusion ................................................ 20

2. Further Litigation Would Be Lengthy, Complex, and Costly ................. 20

3. The Amount of Discovery Supports Settlement .................................... 21

4. Plaintiffs Obtained More Than a 100% Recovery ................................. 22


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5. Experienced Counsel Recommend Approval. ....................................... 23

6. The Reaction of the Class .................................................................... 23

7. Approval Is in the Public Interest ......................................................... 24

D. The Proposed Notice Is Clear and Adequate. ................................................... 25

V. A FINAL APPROVAL HEARING SHOULD BE SCHEDULED. .............................. 25

VI. CONCLUSION ........................................................................................................ 25


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TABLE OF AUTHORITIES

CASES PAGE(S)

Alabama Power Co. v. Davis, 431 U.S. 581 (1977) ..............................................................................................................24

Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) ................................................................................................17

Allman v. American Airlines, Inc. Pilot Retirement Benefit Program Variable Income Plan, No. 14 Civ. 10138 (D. Mass. Mar. 28, 2016) .................................................................13, 14

In re Am. Med. Sys., Inc., 75 F.3d 1069 (6th Cir. 1996) ..........................................................................................13, 14

Amara v. Cigna Corp., 775 F.3d 510 (2d Cir. 2014)..................................................................................................18

Amchem Prods. v. Windsor, 521 U.S. 591 (1997) ..............................................................................................................15

Aro Corp. v. Allied Witan Co., 531 F.2d 1368 (6th Cir. 1976) ..............................................................................................19

In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164 (S.D.N.Y. 2000) .....................................................................................20

Barnes v. AT&T Pension Benefit Plan, 270 F.R.D. 488 (N.D. Cal. 2010) ....................................................................................15, 17

Becher v. Long Island Lighting Co., 164 F.R.D. 144 (E.D.N.Y. 1996) ....................................................................................15, 16

In re Broadwing, Inc. ERISA Litig., 252 F.R.D. 369 (S.D. Ohio 2006) .........................................................................................19

Clark Equip. Co. v. Int’l Union, Allied Indus. Workers of Am., AFL-CIO, 803 F.2d 878 (6th Cir. 1986) ................................................................................................24

Clemons v. Norton Healthcare Inc. Ret. Plan, 890 F.3d 254 (6th Cir. 2018) ................................................................................................18

Daffin v. Ford Motor Co., 458 F.3d 549 (6th Cir. 2006) ................................................................................................12

Hall v. L-3 Communications Corp., No. 15 Civ. 0231, ECF No. 183 (E.D. Wash. Jan. 25, 2019) ...............................................14


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Harbin v. Emergency Coverage Corp., No. 16 Civ. 125, 2017 WL 6329715 (E.D. Tenn. Nov. 21, 2017) ........................................19

Int’l Union, United Auto., Aerospace, & Agr. Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d 615 (6th Cir. 2007) ................................................................................................11

In re Inter-Op Hip Prosthesis Liability Litig., 204 F.R.D. 330 (N.D. Ohio 2001) ..................................................................................19, 20

Kanawi v. Bechtel Corp., 254 F.R.D. 102 (N.D. Cal. 2008) ..........................................................................................15

Levell v. Monsanto Research Corp., 191 F.R.D. 543 (S.D. Ohio 2000) .........................................................................................23

Martin v. State of Wash., 14-2-00016-7 (Spokane Super. Ct. 2017) .............................................................................14

In re Nortel Networks Corp. ERISA Litig., No. 03 Civ. 01537, 2009 WL 3294827 (M.D. Tenn. Sept. 2, 2009) ....................................17

Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) ..............................................................................................................17

In re Packaged Ice Antitrust Litig., No. 17 Civ. 2137, 2018 WL 4520931 (6th Cir. May 24, 2018) ...........................................22

Pender v. Bank of Am., 269 F.R.D. 589 (W.D.N.C. 2010) .........................................................................................15

People First of Tenn. v. Clover Bottom Developmental Ctr., No. 95 Civ 1227, 2015 WL 404077 (M.D. Tenn. Jan. 29, 2015) ...................................20, 23

Robinson v. Shelby Cnty. Bd. of Educ., 566 F.3d 642 (6th Cir. 2009) ..........................................................................................19, 24

Savage v. Federal Express Corp., 856 F.3d 440 (6th Cir. 2017) ..................................................................................................4

Schaefer v. Tannian, No. 73 Civ. 39943, 1995 WL 871134 (E.D. Mich. Apr. 17, 1995) ......................................20

Schell v. Frederick J. Hanna & Assocs., P.C., No. 15 Civ. 418, 2016 WL 1273297 (S.D. Ohio Mar. 31, 2016) .........................................11

In re SE. Milk Antitrust Litig., No. 07 Civ. 208, 2013 WL 2155379 (E.D. Tenn. May 17, 2013) ............................20, 23, 24


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Senter v. Gen. Motors Corp., 532 F.2d 511 (6th Cir. 1976) ................................................................................................13

Snead v. CoreCivic of Tenn., LLC, No. 17 Civ. 0949, 2018 WL 3157283 (M.D. Tenn. June 27, 2018) .....................................12

In re Telectronics Pacing Sys., Inc., 137 F. Supp. 2d 985 (S.D. Ohio 2001) .................................................................................20

Todd v. Retail Concepts, Inc., No. 07 Civ. 0788, 2008 WL 3981593 (M.D. Tenn. Aug. 22, 2008) ....................................21

Tuten v. United Airlines, Inc., 41 F. Supp. 3d 1003 (D. Colo. 2014) ....................................................................................14

Tuten v. United Airlines, Inc., No. 12 Civ. 1561, 2013 WL 8480458 (D. Colo. Oct. 31, 2013).....................................13, 15

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ..................................................................................................12, 17, 18

In re Whirlpool Corp. Front-Loading Washer Products Liability Litig., 722 F.3d 838 (6th Cir. 2013) ................................................................................................12

Winnett v. Caterpillar, Inc., No. 06 Civ. 235, 2007 WL 2044098 (M.D. Tenn. July 12, 2007) ........................................16

Wright v. Premier Courier, Inc., No. 16 Civ. 420, 2018 WL 3966253 (S.D. Ohio Aug. 17, 2018) .........................................23

Yost v. First Horizon Nat. Corp., No. 08 Civ. 2293, 2011 WL 2182262 (W.D. Tenn. June 3, 2011) .................................15, 17

STATUTES

38 U.S.C. § 4301 .....................................................................................................................1, 24

38 U.S.C. § 4318 ................................................................................................................. passim

ERISA .............................................................................................................................15, 16, 17

OTHER AUTHORITIES

1 Newberg on Class Actions § 3:13 (3d ed. 1992) ....................................................................13

4 Newberg on Class Actions § 13:1 (5th ed. 2018) ....................................................................11

5 James W. Moore et al., Moore’s Fed. Prac. § 23.41[5] (3d ed. 2012) ....................................16


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Fed. R. Civ. P. 12 ........................................................................................................................18

Fed. R. Civ. P. 23 ................................................................................................................ passim

Manual for Complex Litigation § 30.41 (3d ed. 1995) ..............................................................19


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MEMORANDUM IN SUPPORT OF UNOPPOSED MOTION

I. INTRODUCTION

Plaintiffs Clifton Cunningham and Don Teed (“Plaintiffs”) and Defendants Federal

Express Corporation, FedEx Corporation Employees’ Pension Plan, the FedEx Freight Pension

Plan (“the Plan”), and other Participating Employer Defendants1 (collectively, “Defendants” or

“FedEx”), have executed a settlement of the claims of Plaintiffs and a putative class of over

4,000 current and former FedEx employees (“Settlement Class” or “Settlement Class Members”)

who Plaintiffs allege were denied pension credit and benefits by the Plan for periods of military

leave from 1996 through 2018 (“the Class Period”) in violation of the Uniformed Services

Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. §§ 4301 et seq.

Under the Settlement, which is attached as Exhibit 4 to the Declaration of Peter Romer-

Friedman in Support of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action

Settlement, Conditional Certification of the Settlement Class, Appointment of Plaintiffs’ Counsel

as Class Counsel, and Approval of the Proposed Notice of Settlement (“Romer-Friedman

Decl.”), FedEx has agreed to apply a new method to calculate the pension credit (which in turn

affects retirement benefits) that employee-reservists will receive for periods of military leave that

is far more favorable to such reservists than the formula that FedEx applied during the Class

Period. In some cases, employees will receive pension credit based upon a full week of earnings

for a period of military leave (“imputed earnings”) if they take a single hour of military leave in

that week.

1 The other Defendants who have employed members of the proposed Class include: FedEx Corporation, FedEx Corporate Services, Inc., FedEx Custom Critical, Inc., FedEx Freight Corporation, FedEx Freight, Inc., FedEx Forward Depots, Inc., FedEx Ground Package System, Inc., FedEx Logistics, Inc. f/k/a FedEx Trade Networks, Inc., and FedEx Trade Networks Transport & Brokerage, Inc. See ECF No. 67-1 ¶ 10.


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In addition, as part of the Settlement, FedEx has retroactively applied the new method to

employees’ military leaves from 1996 to 2018 Class Period and in doing so has taken into

account periods of military leave that FedEx had not previously captured when determining the

pension credit and benefits of employee-reservists. And FedEx has agreed to pay the members

of the proposed Class 100% of the additional pension payments they would have received if the

new formula and missed periods of leave had been applied to their prior pension benefits, plus

4.04% annual interest from the dates that those additional benefits would have been paid. As a

result, Class Members who have already commenced benefits (“Retiree Subclass Members”) will

collectively receive direct payments from the Plan of $1,450,217.30, without the need to file a

claim form to receive such payments. These additional payments amount to a recovery of more

than 121% of the nominal amounts of pension benefits that Plaintiffs estimate the Class was

denied, when applying the new formula retroactively and considering the missed military leave

periods.

For Class Members who have not yet commenced benefits, their future pension benefits

will be calculated based on the new formulae and missed military leaves that FedEx has

retroactively calculated under the Settlement, to the extent those changes result in increased

benefits. Based on data provided by FedEx, it is estimated that Current Retirees will receive

additional future benefits of over $1 million. While the future value to Class Members who have

not yet retired cannot be ascertained, Plaintiffs estimate that it will be substantial.

Furthermore, Defendants have agreed to provide information about the pension credit and

benefits that employees receive for periods of military leave to the Class Members and other

employees who take military leave in the future.


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Under the Settlement, Defendants will pay up to a maximum of $723,000 in attorneys’

fees and $35,000 in costs and service awards for the Class Representatives of up to $20,000

each, separate from and addition to the $1.450 million of payments that Class Members will

immediately receive. As a result, the fees, costs, and service awards payments will not reduce

the payments that Class Members will receive.

Plaintiffs and their counsel believe the excellent recovery and future policy changes make

this Settlement an outstanding result. The Settlement is the product of arm’s-length negotiations

and falls well within the range of reasonableness. The proposed Notice gives Class Members the

best notice practicable and a full and fair opportunity to evaluate the Settlement. Thus, the Class

should be certified and the Settlement preliminarily approved as fair, reasonable, and adequate.

II. BACKGROUND

A. Factual Background

Plaintiffs filed this putative class action alleging that FedEx violated USERRA by, inter

alia, applying a policy for determining pension credits for employees who took military leave

based on a formula that calculated “imputed earnings” – i.e., the compensation employees would

have earned had they not taken military leave – without taking into account the total average

earnings of each employee during the 12-month period preceding the military leave. First

Amended Complaint (“FAC”) ¶ 4, ECF No. 34. Plaintiffs alleged that to determine the imputed

earnings credited to an hourly employee’s Plan account when he or she took military leave,

FedEx had multiplied the effective average hourly rate of pay during the 12-month period before

military service (“12-month lookback period”) by an assumed number of straight-time hours the

FedEx employee would have worked during his or her military service, and that this formula

failed to take into account the overtime hours that employees routinely work and other factors

that would affect an employee’s total compensation. Id.


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For Class Members who received variable pay, such as overtime-eligible employees,

Plaintiffs alleged that this formula undercounted their average earnings during the 12-month

lookback period, id. ¶ 5, in violation of USERRA § 4318’s requirement that employees be

credited “on the basis of the employee’s average rate of compensation during the 12-month

period immediately preceding” the leave, when the employee’s compensation is not “reasonably

certain.” 38 U.S.C. 4318(b)(3)(B); see FAC ¶ 63.

Plaintiffs asserted that the Sixth Circuit had recently held that the imputed earnings

formula FedEx had applied was “at odds with the look-back rule in [USERRA] § 4318.” Savage

v. Federal Express Corp., 856 F.3d 440, 454 (6th Cir. 2017). The two law firms in the instant

action litigated the Savage appeal in the Sixth Circuit, resulting in the first published appellate

opinion on the calculation of reservists’ imputed earnings under USERRA § 4318.

B. Procedural Background

Plaintiffs filed this action on May 12, 2017. Complaint, ECF No. 1. On August 11,

2017, Defendants filed a Motion to Dismiss the Complaint on several grounds. ECF Nos. 28, 29.

Plaintiffs filed their Amended Complaint on September 1, 2017 to address some of the issues

raised by Defendants’ Motion to Dismiss. See FAC, ECF No. 34.

From July to October 2017, the parties engaged in written discovery pursuant to the

Court’s order directing the parties to commence discovery while the Motion to Dismiss was

pending. Romer-Friedman Decl. ¶ 23. Plaintiffs served interrogatories and requests for

production of documents on Defendants, and Defendants responded to them. Id. Defendants

also served interrogatories on Plaintiffs, and Plaintiffs responded to them. Id. This discovery

helped Plaintiffs and Class Counsel understand the past methods the Plans had used to impute

earnings for employees who took Military Leave, the Parties’ views on USERRA’s rules on


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imputing earnings for employees who take Military Leave, and the scope of the proposed Class.

Id.

Defendants renewed their Motion to Dismiss on September 22, 2017. ECF No. 36. In

October 2017, Plaintiffs provided Defendants with a near-final draft of their opposition to the

Motion to Dismiss so that Defendants would understand Plaintiffs’ substantive positions on

potentially dispositive legal questions and consider entering into settlement negotiations.

Romer-Friedman Decl. ¶ 24. Shortly thereafter, Defendants agreed to stay the case to pursue

settlement discussions, and the Court approved a stay of the case on October 19, 2017. ECF No.

43. The stay continued until April 19, 2019, during which time the Parties engaged in informal

discovery and settlement negotiations, and eventually executed the Settlement. ECF Nos. 45, 48.

To inform their settlement discussions and develop methodologies to recalculate the

imputed earnings and pension benefits of the Class Members, the Parties exchanged voluminous

personnel data and information. Romer-Friedman Decl. ¶ 25. Prior to and during the stay, the

Parties engaged in dozens of conference calls and communications to negotiate the terms of the

Settlement and agree upon the relevant calculations. Id.

On February 26, 2018, the Parties’ counsel met in person in Washington, DC, to discuss

the process of implementing a new formula for imputed earnings and begin negotiating the

Settlement’s terms. Id. ¶ 26. As Defendants and various consultants retrieved data and

conducted the relevant calculations, Defendants shared data and calculations with Plaintiffs so

that they could confirm that the revised calculations were consistent with the Weekly Imputed

Earnings Methodologies to which the parties had agreed, id. ¶ 25, as described below. See infra

§ III.B. On February 7 and 8, 2019, the Parties and their counsel met in person in Memphis,

Tennessee to negotiate the material terms of a Settlement. Id. ¶ 27. On February 13, 2019, the


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Parties executed an agreement-in-principle, and over the next two months negotiated the detailed

terms of the Settlement Agreement. Id. ¶ 28. On April 12, 2019, the parties executed the

Settlement. On April 19, 2019, Plaintiffs filed a motion for leave to file a Second Amended

Complaint (“SAC”) to ensure that all of the parties to the Settlement are part of this proceeding.

ECF No. 67.

III. THE PROPOSED SETTLEMENT

The Settlement provides substantial programmatic, equitable, and retrospective relief to

Class Members who Plaintiffs allege were denied the full pension credit and benefits that they

were entitled to during periods of military leave from 1996 to 2018.

A. The Settlement Class and Retiree Subclass

The parties have agreed to certify a settlement class defined as “All current and former

non-pilot vested participants in the FedEx Corporation Employees’ Pension Plan or the FedEx

Freight Pension Plan (the “Plans”) who took Class-Period Military Leaves or the beneficiaries of

such participants.” Settlement Agreement § IV.A.1. FedEx, through its personnel records, has

identified approximately 4,200 employees who are members of the Settlement Class. Romer-

Friedman Decl. ¶ 29. The Parties have also agreed to certify for settlement purposes a “Retiree

Subclass,” consisting of all members of the Settlement Class who already have begun receiving

pension benefit payments, including monthly payments or lump sum payments, from the Plan

prior to December 31, 2018. Romer-Friedman Decl. Ex. 4 (Settlement Agreement) § IV.B.1.

There are approximately 660 members of the Retiree Subclass, according to FedEx’s personnel

records. Romer-Friedman Decl. ¶ 31.

B. The Weekly Earnings Methodologies

Under the Settlement, the parties have agreed that FedEx will implement, for at least two

years, a new way of calculating the imputed earnings of the employees with variable income who


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take military leave that is consistent with USERRA’s requirement that pension contributions are

calculated based on each employee’s total rate of compensation during the 12 months preceding

the leave (or lesser amount if 12 months are unavailable) (“Weekly Earnings Methodologies”).

For each week in which a Class Member takes military leave, irrespective of the length of such

leave (e.g., an hour, day, or entire work-week), FedEx will impute a full week of the employee’s

average weekly earnings. Romer-Friedman Decl. Ex. 4 (Settlement Agreement) § VI.A.1. Each

hourly employee’s average weekly earnings will be determined by dividing the employee’s total

pensionable earnings (including overtime) in the 12 months preceding the first day of the month

in which the military leave occurs by the number of pay periods in which the employee received

pensionable earnings in the same 12-month period. Id. If the employee was employed for fewer

than 12 months or if fewer than 12 full months of pensionable earnings are available, all

available pensionable earnings for the period preceding the military leave will be divided by the

number of pay periods in which the employee received pensionable earnings. Id. For salaried

employees, the weekly earnings used to determine employees’ imputed earnings for a period of

military leave are equivalent to the employee’s weekly pay rate as of the first day of return from

military leave. Id. § IV.A.3. Additional details of the Weekly Earnings Methodologies are

described in the Settlement. See Id. § VI.A.

Plaintiffs’ counsel believe that for hourly workers the new Weekly Earnings

Methodologies will often result in FedEx providing employee-reservists with imputed earnings

that exceed (and in some cases far exceed) the pension benefits that USERRA § 4318 requires

employers to make for employees who take military leave. Romer-Friedman Decl. ¶ 30.

C. Changes to Future Benefits

These new rules for periods of military leave will increase employees’ future pension

benefit payments that stem from their military leave. As of January 1, 2019, FedEx has revised


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the imputed earnings of all Class Members based upon the Weekly Earnings Methodologies and

missed periods of military leave. For many Class Members who have not commenced benefits,

this will result in the employees receiving larger pension payments when they commence

benefits in the future. While those benefits cannot be calculated with certainty for employees

who have not yet retired, FedEx’s data suggests that the 660 Current Retirees will realize a total

of over $1 million in future pension benefits. Id. ¶¶ 31, 32. Plaintiffs expect that many Class

Members who have yet to retire will receive similar increases to their benefits. Retiree Subclass

Members who are receiving monthly pension payments on an ongoing basis will have those

monthly payments increased to reflect their new monthly benefits. Id. ¶ 31.

Furthermore, FedEx began implementing the Weekly Earnings Methodologies on

January 1, 2019 for all employees who take military leave and will continue to do so for two

years from the effective date of the Settlement (i.e., at least through the fall of 2021). Id. ¶ 30.

Also, for four years from the Effective Date (i.e., at least through the fall of 2023), FedEx will

notify the Plan participants of any change in the Weekly Earnings Methodologies within 30 days

of making such change. Id.

FedEx has agreed to take several steps to ensure that information on the changes to the Plan

are readily available to employees. This includes publishing the Weekly Earnings Methodologies

in places readily available to employees and establishing a system under which employees can

request additional information about their imputed earnings or benefit calculations. Id. ¶ 34.

D. Payments to Class Members

Under the Settlement, total payments of $1,450,217.30 will be made directly to Retiree

Subclass Members from the Plan to address alleged underpayments in the past. Id. § 31. These

funds will be distributed based on the individualized recalculation of imputed earnings for all

military leaves taken by the Class Members between January 1, 1996 through December 31,


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2018 (including missed periods of leave). Id. § VI.F.1. These payments cover 100% of the

difference between the pension benefits that each Retiree Subclass member actually received in

the past and what they would have received under the new Weekly Earnings Methodologies

through June 30, 2019 ($1,239,996.62), plus 4.04% annual interest from the date of each pension

benefit payment through June 30, 2019 ($210,220.68 of total interest). Id.

E. The Notice and Settlement Administration Process

The Settlement Administrator will mail the Court-approved Notice to Settlement Class

Members within 30 days of the Preliminary Approval Order. Id. § V.A. The parties will ensure

that the Settlement Administrator has sufficient data to prepare and send the notice. Id. The

Settlement Administrator will take all reasonable steps to obtain the correct address of any

Settlement Class Member for whom the Notice is returned as undeliverable and will attempt re-

mailings if better address information is obtained. Id.

Among other things, the Notice will advise all Settlement Class Members of (i) the

military leaves of absence used to calculate their imputed earnings and (ii) their confirmed

recalculated benefit amount, the latter of which will be the higher of the benefit calculated using

the pre-2019 methods or the Weekly Earnings Methodologies. Id. Retiree Subclass Members

will have 90 days from the date of the Notice to provide the Settlement Administrator with

documentation of any military leaves not identified in the Notice, and Class Members who did

not commence benefits prior to January 1, 2019, will have 180 days from the date of the Notice

to provide such documentation. Romer-Friedman Decl Ex. 5 (Notice). Settlement Class

Members who wish to object to the Settlement must mail a written objection to the Settlement

Administrator. Id.


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F. Releases

Settlement Class Members will release any and all actual or potential claims or causes of

action for any relief, damages, penalties, attorneys’ fees, expenses, or costs arising out of or

relating to (i) the Defendants’ pre-2019 methods for imputing earnings to Class-Period Military

Leaves, or (ii) Defendants’ failure to capture pre-2019 Military Leave data, including such

claims asserted against Defendants in the instant action. Romer-Friedman Decl. Ex. 4

(Settlement Agreement) § X.

G. Attorneys’ Fees, Litigation Expenses, and Service Payment

Under the Settlement, FedEx will pay attorneys’ fees and costs, and service awards to the

named Plaintiffs in amounts that the Court shall award, separate from and in addition to the

settlement payments that will be made to the Class Members. Id. § VII.A. Plaintiffs’ counsel

have agreed to request no more than $723,000 in attorneys’ fees. FedEx may oppose Plaintiffs’

request only to the extent that it exceeds $478,000. Id. § VII.C. Plaintiffs’ counsel will request,

and Defendants will not oppose, up to $35,000 in litigation costs. Id. § VII.C. Moreover,

Plaintiffs will request a service award of no more than $20,000 per named Plaintiff for their

service to the Class. Defendants may challenge the service award requests to the extent that they

exceed $5,000 each. Id. § VII.F. Under Rule 23(h) of the Federal Rules of Civil Procedure,

Plaintiffs’ Counsel will file a motion for approval of attorneys’ fees and costs with their Final

Approval Motion. See id. § VII.A.

H. Settlement Claims Administrator

The Parties recommend that the Court appoint RG/2 Claims Administration LLC as the

Settlement Administrator. Romer-Friedman Decl. ¶ 35. FedEx will pay the Settlement

Administrator’s full fees and costs, which RG/2 estimates will be approximately $15,000.


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IV. ARGUMENT

The well-established procedure for approving class action settlements involves three

steps: (1) preliminary approval of the proposed settlement after submission to the court of a

written motion; (2) notice of the settlement to all class members; and (3) a final settlement

approval hearing where the court will consider whether the settlement is fair, adequate, and

reasonable such that it should be approved. Fed. R. Civ. P. 23(e); see also 4 Newberg on Class

Actions § 13:1 (5th ed. 2018). Here, Plaintiffs request that the Court take the first step by

certifying a Settlement Class, granting preliminary approval, and approving the proposed Notice.

A. Certification of the Rule 23 Class Is Proper.

Plaintiffs request that the Court conditionally certify a Settlement Class under Rule 23

and appoint Class Counsel to effectuate the Settlement, as courts ordinarily do when granting

preliminary approval. See Schell v. Frederick J. Hanna & Assocs., P.C., No. 15 Civ. 418, 2016

WL 1273297, at *1 (S.D. Ohio Mar. 31, 2016) (certifying a class for settlement purposes and

appointing class counsel).

Under Rule 23(a), a class action may be maintained if all four requirements of Rule 23(a)

are met, as well as one or more prongs of Rule 23(b). Fed. R. Civ. P. 23(a)-(b).

The proposed Class meets all of the class certification requirements. See Int’l Union,

United Auto., Aerospace, & Agr. Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d 615,

632, 622-23, 626 (6th Cir. 2007) (“General Motors”) (affirming decision to certify settlement-

only classes). The proposed Settlement Class should be certified under Rule 23(a), (b)(1), and/or

(b)(2). And FedEx consents to certification for settlement purposes. Romer-Friedman Decl. Ex.

4 (Settlement Agreement) § 2.4(A).

1. Rule 23(a) Is Satisfied.

Here, the proposed Class meets all of the requirements of Rule 23(a).


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First, numerosity is met. Joinder of approximately 4,000 Settlement Class Members

who work nationwide would be impractical, and a class of 4,000 Class Members far exceeds the

100-class member figure at which numerosity is presumptively satisfied. Fed. R. Civ. P.

23(a)(1); see Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006) (numerosity satisfied

where the “proposed class includes thousands of individuals”); Snead v. CoreCivic of Tenn.,

LLC, No. 17 Civ. 0949, 2018 WL 3157283, at *11 (M.D. Tenn. June 27, 2018) (stating that

“[s]ome courts have found that classes with more than one hundred plaintiffs presumptively

satisfy the numerosity requirement” and “[t]his court has observed that as few as forty class

members may satisfy the numerosity requirement”) (collecting cases).

Second, commonality is met, as “there are questions of law or fact common to the class.”

Fed. R. Civ. P. 23(a)(2). Commonality requires a showing “that class members have suffered the

same injury.” In re Whirlpool Corp. Front-Loading Washer Products Liability Litig., 722 F.3d

838, 852 (6th Cir. 2013). The requirement is met where the class members’ claims “depend

upon a common contention . . . of such a nature that it is capable of classwide resolution.” Id.

(quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (“Dukes”)). As the Supreme

Court explained in Dukes, commonality is clearly satisfied where, as here, employees challenge a

specific employment policy and a plaintiff seeks to represent all employees who claim that they

were prejudiced by that policy. 564 U.S. at 353.

Here, all the central factual and legal issues are common to the Settlement Class

Members and are capable of a class-wide resolution. The Settlement Class Members claim that

FedEx and the Plans calculated imputed earnings and pension benefits in a manner that is

inconsistent with USERRA § 4318, because they failed to determine imputed earnings for

periods of Military Leaves based on the total compensation that employees earned before periods


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of military leave and/or because FedEx failed to provide any imputed earnings or credit for

certain Military Leaves. Other courts have found commonality satisfied where servicemember-

employees are “subject to the same policy regarding Defendant’s contributions to the pension

fund” on their behalf. Tuten v. United Airlines, Inc., No. 12 Civ. 1561, 2013 WL 8480458, at *1

(D. Colo. Oct. 31, 2013) (granting certification of class of 1,200 pilots who challenged United

Airlines’ formula for making retirement contributions to reservists for periods of military leave

as a violation of USERRA § 4318); see also Romer-Friedman Decl. Ex. 1 (Allman v. American

Airlines, Inc. Pilot Retirement Benefit Program Variable Income Plan, No. 14 Civ. 10138, ECF

No. 110 at 1-2 (D. Mass. Mar. 28, 2016) (granting certification of a class of American Airlines

pilots who claimed their employer applied a retirement contribution formula that violates

USERRA § 4318).

Third, Plaintiffs’ claims are typical. Typicality does not require the representative party’s

claims to “always involve the same facts or law.” Senter v. Gen. Motors Corp., 532 F.2d 511,

525 n.31 (6th Cir. 1976). Rather, typicality is satisfied where the named plaintiff’s claim “arises

from the same event or practice or course of conduct that gives rise to the claims of other class

members, and if his or her claims are based on the same legal theory.” In re Am. Med. Sys., Inc.,

75 F.3d 1069, 1082 (6th Cir. 1996) (quoting 1 Newberg on Class Actions § 3:13 (3d ed. 1992)).

Here, Plaintiffs and the Class challenge the same uniform practices of applying an allegedly

unlawful formula for calculating imputed earnings and pension credits for periods of Military

Leave and failing to credit all Military Leaves, and all of their claims are based on the same legal

theory concerning how FedEx’s uniform practices violate USERRA § 4318.

Fourth, Plaintiffs have fairly and adequately protected the interests of the class and will

continue to do so. See Fed. R. Civ. P. 23(a)(4). To satisfy the adequacy requirement, “(1) the


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representative must have common interests with unnamed members of the class, and 2) it must

appear that the representatives will vigorously prosecute the interests of the class through

qualified counsel.” In re Am. Med. Sys., Inc., 75 F.3d at 1083. Here, Plaintiffs are reservists

and employees of FedEx who share the same interest as the Class Members in seeing that

employees receive relief for being denied imputed earnings for Military Leave and reforming

FedEx’s policies to secure future pension benefits. And Plaintiffs are represented by counsel

who are highly experienced in prosecuting USERRA and other complex employment class

actions and have a strong track record of obtaining excellent results in individual and class cases

under USERRA. See Romer-Friedman Decl. ¶ 8; Decl. of Joseph Napiltonia ¶ 4.2

2. Certification is Proper Under 23(b)(1)

Rule 23(b)(1) authorizes certification under two circumstances, both of which are present

in this case. The rule provides that “[a] class action may be maintained if:

(1) prosecuting separate actions by or against individual class members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other

2 See Tuten v. United Airlines, Inc., 41 F. Supp. 3d 1003, 1008 (D. Colo. 2014) (granting approval of $6.15 million settlement for class of pilots and noting that “the results achieved for the Plaintiff class in this case were outstanding, worthy of being emulated by . . . counsel in other comparable litigation”); Romer-Friedman Decl. Ex. 1 (Allman v. Am. Airlines, Inc. Pilot Ret. Benefit Plan, No. 14 Civ. 10138, ECF No. 110 (D. Mass. Feb. 15, 2017) (approving settlement in USERRA pension class action worth around $6.5 million); Id. Ex. 2 (Martin v. State of Wash., 14-2-00016-7 (Spokane Super. Ct. 2017) (approving USERRA settlement worth about $15 million); Id. Ex. 3 (Hall v. L-3 Communications Corp., No. 15 Civ. 0231, ECF No. 183 (E.D. Wash. Jan. 25, 2019) (granting preliminary approval of the first pattern or practice hiring discrimination class settlement under USERRA, and stating that “[t]he attorneys involved in this case have litigated it expertly, and in their long experience in class action and labor work conclude this settlement is fair and reasonable”).


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members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.

Fed. R. Civ. P. 23(b)(1).

Rule 23(b)(1)(A) “takes in cases where a party is obliged by law to treat the members of

the class alike . . . or where the party must treat all alike as a matter of practical necessity.”

Amchem Prods. v. Windsor, 521 U.S. 591, 614 (1997). In cases alleging that an employer or a

pension plan deprived employees of pension benefits, courts hold that certifying a class under

Rule 23(b)(1)(A) will prevent Defendants from facing “the risk of incompatible court orders and

judgments” that require inconsistent standards of conduct. Yost v. First Horizon Nat. Corp., No.

08 Civ. 2293, 2011 WL 2182262, at *14 (W.D. Tenn. June 3, 2011) (certifying a Rule

23(b)(1)(A) class in an ERISA action). Inconsistent judgments would pose a major problem for

pension plans – like the FedEx Plans in this case – because “ERISA requires plan administrators

to treat all similarly situated participants in a consistent manner.” Barnes v. AT&T Pension

Benefit Plan, 270 F.R.D. 488, 496 (N.D. Cal. 2010) (stating “‘[m]ost ERISA class action cases

are certified under Rule 23(b)(1),’” and quoting Kanawi v. Bechtel Corp., 254 F.R.D. 102, 111

(N.D. Cal. 2008)); Pender v. Bank of Am., 269 F.R.D. 589, 598 (W.D.N.C. 2010) (stating

“ERISA cases in which plaintiffs challenge the computation of benefits are often certified under

Rule 23(b)(1)(A), and collecting cases in which employee benefit disputes were certified under

Rule 23(b)(1)).

Similarly, courts have certified classes under Rule 23(b)(1)(A) in USERRA actions

challenging the denial of pension benefits. See, e.g., Tuten, 2013 WL 8480458, at *1 (certifying

a Rule 23(b)(1)(A) class under USERRA as “permitting individual plaintiffs to pursue their own

claims could result in [the employer] being required to treat [class members] differently, which is

forbidden by the laws governing employee benefits”); Becher v. Long Island Lighting Co., 164


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F.R.D. 144, 153 (E.D.N.Y. 1996) (certifying Rule 23(b)(1) class under USERRA). In fact, a

leading civil procedure treatise cites Becher, which involved claims for pension benefits under

ERISA and USERRA, as the example of a “labor relations” case suitable for Rule 23(b)(1)(A)

certification. 5 James W. Moore et al., Moore’s Fed. Prac. § 23.41[5] (3d ed. 2012). As Becher

observed, without a Rule 23(b)(1) class, “[e]ach case could conceivably result in different courts

reaching conflicting decisions” about benefits the plaintiffs claimed they were owed, “but also

the applicability of the various defenses the defendants seek to interpose.” 164 F.R.D. at 153.

Here, Plaintiffs seek a determination that FedEx should have calculated Class Members’

imputed earnings for periods of Military Leaves based on compensation that reflected hourly

employees’ average total compensation over the 12 months prior to each period of military leave,

that FedEx should have provided imputed earnings for all periods of military leave, and that

FedEx violated USERRA by failing to do so. In the absence of a Rule 23(b)(1) class, multiple

separate lawsuits could result in conflicting or varying adjudications about how to calculate

earnings credits of FedEx employees who returned from military leave and would require FedEx

to face conflicting standards on how to administer its Plans. See Winnett v. Caterpillar, Inc., No.

06 Civ. 235, 2007 WL 2044098, at *11 (M.D. Tenn. July 12, 2007) (certifying a Rule 23(b)(1)

class of over 4,000 persons alleging ERISA health insurance benefit violations because

employees “would likely face incompatible standards of conduct paying the full-costs of benefits

for some but not others”). Thus, a class-wide determination and resolution of the issues alleged

in the Complaint provides for a single, efficient adjudication of these claims consistent with Rule

23(b)(1)(A).

Rule 23(b)(1)(B) certification is also appropriate, as litigating these claims individually

“would have the practical if not technical effect of” concluding or impairing the interests of


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persons who are not parties to those individual lawsuits. Ortiz v. Fibreboard Corp., 527 U.S.

815, 833 (1999). In Ortiz, the Supreme Court recognized that one of the “classic examples”

where individual actions could risk the impairment of others’ rights is “the adjudication of the

rights of all participants in a fund in which the participants had common rights.” Id. at 834-36 &

n.14. Applying this standard, courts routinely certify Rule 23(b)(1)(B) classes of employees

seeking to enforce common pension rights. See, e.g., In re Nortel Networks Corp. ERISA Litig.,

No. 03 Civ. 01537, 2009 WL 3294827, at *15 (M.D. Tenn. Sept. 2, 2009) (certifying a class of

employees bringing ERISA fiduciary breach claims under Rule 23(b)(1)(B)); Yost, 2011 WL

2182262, at *13 (same); Barnes, 270 F.R.D. at 496.

Here, because FedEx and the Plans applied the same formulas to calculate the imputed

earnings of employees who took military leave during the Class Period, a resolution of whether

the relevant formulas violate USERRA would necessarily adjudicate the rights of other

participants, regardless of whether they are included in the suit. As such, Rule 23(b)(1)(B)

certification is appropriate to ensure a uniform resolution for all Class Members.

3. Certification Is Proper Under Rule 23(b)(2)

Rule 23(b)(2) permits certification when “the party opposing the class has acted or

refused to act on grounds that apply generally to the class, so that final injunctive relief or

corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.

23(b)(2). A class action that seeks both injunctive and monetary relief may be certified under

Rule 23(b)(2) when the monetary relief is “incidental” to the injunctive or declaratory relief.

Dukes, 564 U.S. at 360. Monetary relief is “incidental” to injunctive or declaratory relief when

damages “‘flow directly from liability to the class as a whole on the claims forming the basis of

the injunctive or declaratory relief,’” and additional individual hearings will not be required “‘to

resolve the disparate merits of each individual’s case.’” Id. at 365 (quoting Allison v. Citgo


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Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998)).

After Dukes, the Sixth Circuit and other courts have held that claims involving the

calculation of pension benefits under a common policy can be certified under Rule 23(b)(2).

See, e.g., Clemons v. Norton Healthcare Inc. Ret. Plan, 890 F.3d 254, 279-80 (6th Cir. 2018)

(“Since the [retirement benefits] plan must mean the same thing regardless of the person to

whom it applies,” relief under Rule 12(b)(2) is appropriate); Amara v. Cigna Corp., 775 F.3d 510

(2d Cir. 2014) (stating that Dukes does “not foreclose an award of monetary relief when that

relief is incidental to a final injunctive or declaratory remedy”).

Here, FedEx has acted on grounds that apply generally to the Settlement Class Members

by subjecting all of them to the same uniform policy of calculating their imputed earnings in a

manner that Plaintiffs claim violates USERRA. The Complaint primarily seeks a declaration that

FedEx’s uniform policy violated USERRA and that FedEx must recalculate the imputed earnings

consistent with the terms of USERRA. SAC ¶ 21. Here, because any declaration would apply to

the Class as a whole and require FedEx to recalculate the benefits of all Class Members, any

immediate or future payments to the Class Members will flow directly and automatically from

the declaration. As demonstrated by the Settlement, which relies upon an objective formula for

calculating Class Members’ imputed earnings and pension benefits, once a recalculation formula

is established (such as the Weekly Earnings Methodologies), the actual calculation becomes a

mechanical task of applying the formula to the data. Thus, Rule 23(b)(2) certification is proper.

B. Class Counsel Should Be Appointed.

The Court should appoint Outten & Golden LLP as Lead Class Counsel and the Law

Office of Joe Napiltonia as additional Class Counsel under Rule 23(g). Adequacy of class

counsel depends on (1) work performed on the matter, (2) experience, (3) knowledge of the law,

and (4) the resources counsel can commit. Fed. R. Civ. P. 23(g)(1)(A). Class Counsel satisfy


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these criteria, as set forth above. Supra § IV.A.1; Romer-Friedman Decl. ¶¶ 6-28; Decl. of

Joseph Napiltonia ¶ 4.

C. Preliminary Approval Should be Granted.

“[S]ettlement of class actions is generally favored and encouraged.” In re Broadwing,

Inc. ERISA Litig., 252 F.R.D. 369, 371 (S.D. Ohio 2006); see Robinson v. Shelby Cnty. Bd. of

Educ., 566 F.3d 642, 648 (6th Cir. 2009) (“[P]ublic policy strongly favors settlement of disputes

without litigation.”) (citation omitted); General Motors, 497 F.3d at 632 (“[F]ederal policy

favor[s] settlement of class actions[.]”). Courts encourage early class settlements, which allow

class members to recover without undue delay and preserve judicial resources. See Aro Corp. v.

Allied Witan Co., 531 F.2d 1368, 1371 (6th Cir. 1976) (“By such agreements are the burdens of

trial spared to the parties, to other litigants waiting their turn before over-burdened courts, and to

the citizens whose taxes support the latter. An amicable compromise provides the more speedy

and reasonable remedy for the dispute.”).

Where a settlement is not collusive or illegal, but “appears to fall within the range of

possible approval,” a court should grant preliminary approval. In re Inter-Op Hip Prosthesis

Liability Litig., 204 F.R.D. 330, 350 (N.D. Ohio 2001) (quoting Manual for Complex Litigation

§ 30.41 (3d ed. 1995)). Thus, when considering preliminary approval, courts “evaluate whether

the proposed settlement appears to be the product of serious, informed, non-collusive

negotiation, has no obvious deficiencies, does not improperly grant preferential treatment to class

representatives or segments of the class, and falls within the range of possible approval.” Harbin

v. Emergency Coverage Corp., No. 16 Civ. 125, 2017 WL 6329715, at *2 (E.D. Tenn. Nov. 21,

2017), report and recommendation adopted, 2017 WL 6328161 (E.D. Tenn. Dec. 11, 2017)

(citation and quotations omitted). Furthermore, at this stage courts consider the following

additional factors to preliminary assess the fairness of a proposed settlement:


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(1) the strength of plaintiffs’ case, both as to liability and damages; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed, and the stage of the proceedings; (6) the experience and views of counsel; (7) the reaction of the class members to the proposed settlement; (8) the public interest; and (9) the ability of the defendants to withstand a greater judgment.

In re Inter-Op Hip Prosthesis Liability Litig., 204 F.R.D. at 351 (citations omitted). Here, all of

the relevant factors weigh in favor of preliminary approval of the Settlement.

1. There is No Risk of Fraud or Collusion

The Settlement is the result of the parties’ serious and informed negotiations conducted

over an 18-month period by lawyers experienced in class and complex litigation. See supra II.D.

“Courts respect the integrity of counsel and presume the absence of fraud or collusion in

negotiating the settlement, unless evidence to the contrary is offered.” People First of Tenn. v.

Clover Bottom Developmental Ctr., No. 95 Civ 1227, 2015 WL 404077, at *2 (M.D. Tenn. Jan.

29, 2015) (quoting In re SE. Milk Antitrust Litig., No. 07 Civ. 208, 2013 WL 2155379, at *6

(E.D. Tenn. May 17, 2013). Because counsel for both parties are experienced, have engaged in

good-faith negotiations, and reached a Settlement with the input and approval of Plaintiffs, this

factor weighs in favor of preliminary approval. See Romer-Friedman Decl. ¶¶ 7-21, 24-28, 36.

2. Further Litigation Would Be Lengthy, Complex, and Costly

By reaching a favorable settlement prior to dispositive motions or trial, Plaintiffs seek to

avoid significant expense, risk, and delay, and to ensure recovery for the Class. Courts recognize

that “[m]ost class actions are inherently complex and settlement avoids the costs, delays, and

multitude of other problems associated with them.” In re Telectronics Pacing Sys., Inc., 137 F.

Supp. 2d 985, 1013 (S.D. Ohio 2001) (quoting In re Austrian & German Bank Holocaust Litig.,

80 F. Supp. 2d 164, 174 (S.D.N.Y. 2000)); see also Schaefer v. Tannian, No. 73 Civ. 39943,

1995 WL 871134, at *8 (E.D. Mich. Apr. 17, 1995) (“The track record for large class action


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employment discrimination cases demonstrates that many years may be consumed by trials and

appeals before the dust finally settles.”). This case is no exception, with approximately 4,200

Class Members litigating complex legal claims under an infrequently litigated provision of

USERRA and seeking to remedy alleged violations that date back more than two decades.

Further litigation would cause additional expense, delay, and risk. The Parties would

engage in substantial fact and expert discovery, adding further delay and substantial expense.

The Parties then would likely cross-move for summary judgment, requiring extensive briefing

and delaying the resolution of the merits. Factual disputes would likely require an extensive

trial, and any judgment would likely be appealed by the losing parties, further extending the

litigation. This Settlement, on the other hand, will immediately provide all Class Members with

more than 100% of imputed earnings and lost benefits that Plaintiffs allege the Class Members

are owed, and ensure that imputed earnings and pension benefits are calculated consistent with

(or even more generously than) what USERRA requires. Therefore, this factor weighs in favor

of preliminary approval.

3. The Amount of Discovery Supports Settlement

In assessing this factor, the proper question is whether the parties have “engaged in

sufficient discovery to frame the issues on the merits and for class certification.” Todd v. Retail

Concepts, Inc., No. 07 Civ. 0788, 2008 WL 3981593, at *5 (M.D. Tenn. Aug. 22, 2008). Here,

the Parties had robust information and settled the case in an informed manner. Romer-Friedman

Decl. ¶¶ 23, 25. Prior to filing the action, Plaintiffs’ counsel engaged in factfinding, including

speaking with FedEx employees and obtaining information on FedEx’s pension policies. Id. ¶

22. After filing the action, Plaintiffs’ counsel obtained the key information they needed to fully

assess the legal claims, the potential losses of the Class, and Defendants’ affirmative defenses,

including voluminous personnel data about the Class Members. Id. ¶¶ 23-25. They worked with


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FedEx’s counsel and the Plaintiffs to understand the pension policies, personnel data, and what

new information would improve their analysis. Id. ¶ 25. Plaintiffs’ counsel used all this

information to successfully settle the case on excellent terms for the Class Members. Therefore,

this factor weighs in favor of preliminary approval.

4. Plaintiffs Obtained More Than a 100% Recovery

In assessing the reasonableness of a settlement, the likelihood of success on the merits is

“the most important factor.” In re Packaged Ice Antitrust Litig., No. 17 Civ. 2137, 2018 WL

4520931, at *6 (6th Cir. May 24, 2018). “The likelihood of success . . . provides a gauge from

which the benefits of the settlement must be measured.” Id.

Here, while Plaintiffs faced many litigation risks to obtain any recovery for the Class,

Plaintiffs negotiated a settlement that provides more than a 100% recovery of the imputed

earnings and pension benefits that Class Members claim they were denied from 1996 to 2018.

The Retiree Subclass Members will collectively receive $1,450,217.30 in payments, which

represents 100% of the additional imputed earnings and pension benefits they would receive by

retroactively applying the new recalculation rules and by crediting missed Military Leave

periods, plus 4.04% annual interest from the date of their payments. This restoration of benefits

far exceeds a 100% recovery of the potential losses of the Class, because the new rules are

generally more generous than what USERRA mandates. And the other Class Members who

have not yet commenced benefits will receive forward-looking benefits in the form of generous

new pension credit rules and credit for missed Military Leave periods in calculating their future

retirement benefits. Forward-looking relief for Current Retirees is estimated to exceed $1

million in future pension payments, Romer-Friedman Decl. ¶ 32, and Plaintiffs anticipate that

Class Members who retire in the future will enjoy commensurate increases in their benefits.


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Thus, in this Settlement, Plaintiffs have managed to obtain greater relief for the Class

than they could have potentially achieved at trial. Where “collaboration has fostered what may

be a more positive result for Plaintiffs than would be achievable even through successful

litigation,” People First, 2015 WL 404077, at *3, approval of a settlement is strongly favored.

Weighing the benefits of the settlement against the risks associated with proceeding in the

litigation, the Settlement’s relief is outstanding and strongly favors preliminary approval.

5. Experienced Counsel Recommend Approval.

Plaintiffs’ counsel recommend that the Court approve the Settlement, a judgment that

should be given deference. “‘The judgment of experienced counsel and class representatives

regarding the settlement should be given significant weight.’” Id. (quoting In re SE. Milk

Antitrust Litig., 2013 WL 2155379, at *5); accord Wright v. Premier Courier, Inc., No. 16 Civ.

420, 2018 WL 3966253, at *5 (S.D. Ohio Aug. 17, 2018) (“The recommendation of [c]lass

[c]ounsel . . . that the Court should approve the Settlement is entitled to deference.”).

Plaintiffs’ counsel have extensive experience litigating USERRA class actions across the

nation, and believe that Plaintiffs have obtained outstanding relief for the Class in this

Settlement. Romer-Friedman Decl. ¶¶ 7, 8. Moreover, in this case, counsel have engaged in

sufficient discovery and negotiations to allow them to make a well-informed decision to enter

into the Settlement and, thus, this factor favors preliminary approval. See id. ¶¶ 23-28; see also

Levell v. Monsanto Research Corp., 191 F.R.D. 543, 557 (S.D. Ohio 2000) (affording counsel

deference where the parties had engaged in “informal discovery and extensive negotiations”).

6. The Reaction of the Class

After Settlement Class Members receive the Notice and respond, the Court can more

fully analyze this factor. At this early stage in the process, Plaintiffs have indicated their strong

support for the Settlement. Romer-Friedman Decl. ¶ 36. Plaintiffs’ counsel are confident that


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the proposed Settlement effectively addresses the concerns of FedEx employees that gave rise to

this litigation and that the Settlement Class Members will respond favorably. See id. ¶¶ 31, 36.

7. Approval Is in the Public Interest

The public interest weighs in favor of approval. See Robinson, 566 F.3d at 648 (“[I]t is . .

. well-established that [p]ublic policy strongly favors settlement of disputes without litigation.”)

(citation and internal quotations omitted). In addition to more than fully restoring the pension

benefits of approximately 4,200 military reservists for a period covering 22 years, the Settlement

will ensure that thousands of FedEx employees can take military leave in the future and be

confident that they will receive the pension benefits and retirement security for their military

service that Congress intended. In fact, thousands of employee-reservists will receive greater

retirement benefits when they take their military leave than USERRA requires. As a result, the

Settlement advances one of the key purposes of USERRA: “to encourage noncareer service in

the uniformed service by eliminating or minimizing the disadvantages to civilian careers and

employment which can result from such service.” 38 U.S.C. § 4301(a)(1). Indeed, the Supreme

Court has observed that the federal reemployment rights law (now USERRA), constitutes the

“mechanism for manning the Armed Forces of the United States.” Alabama Power Co. v. Davis,

431 U.S. 581, 583 (1977)

Furthermore, the resolution of this matter now will conserve judicial resources, a key

public interest. In re SE. Milk Antitrust Litig., 2013 WL 2155379, at *7 (“It is beyond dispute

that there is a public interest in settlement of disputed cases that require substantial federal

judicial resources to supervise and resolve.”). This factor thus favors preliminary approval.

A balancing of the factors above strongly weighs in favor of granting preliminary

approval. Because the settlement is “fair, reasonable, and adequate” and not a “product of fraud

or collusion,” the Court should grant preliminary approval. Clark Equip. Co. v. Int’l Union,


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Allied Indus. Workers of Am., AFL-CIO, 803 F.2d 878, 880 (6th Cir. 1986).

D. The Proposed Notice Is Clear and Adequate.

The proposed Notice is “reasonable” and the “best notice that is practicable under the

circumstances.” Fed. R. Civ. P. 23(c)(2)(B), (e)(1). The Notice distribution plan described in

the Settlement is consistent with modern best practices. The Notice will be disseminated by U.S.

Mail and, where available, e-mail, to the nearly 4,200 Settlement Class Members. The Notice

makes clear that the Settlement Administrator and Class Counsel are available to assist the Class

Members. It explains that Class Members have a deadline to object and between 90 and 180

days to identify additional military leave, depending on whether they have commenced benefits.

V. A FINAL APPROVAL HEARING SHOULD BE SCHEDULED.

Plaintiffs propose the following schedule for finalizing and implementing the Settlement:

Event Proposed Date Notice sent by Settlement Administrator 30 Days After Preliminary Approval Order Deadline for Class Members to submit objections

60 Days After Notice Mailing

Settlement Administrator submits final report to Parties

75 Days After Notice Mailing

Fee and Service Award motions due 35 Days Before Final Approval Hearing Final Approval motion due 14 Days Before Final Approval Hearing Final approval, Service Award fee reply briefs 14 Days Before Final Approval Hearing Final Approval Hearing To be determined by the Court

VI. CONCLUSION

For the foregoing reasons, Plaintiffs request that the Court: (1) certify the Settlement

Class; (2) preliminarily approve the Settlement; (3) appoint Plaintiffs as Class Representatives,

their counsel as Class Counsel, and RG/2 Claims Administration LLC as the Settlement

Administrator; (4) set the deadlines for filing written objections to the Settlement; (5) approve

the Notice of the Settlement; and (6) schedule a hearing on the final approval of the Settlement.


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DATED: April 19, 2019 Respectfully submitted, By: /s/ Peter Romer-Friedman______ Peter Romer-Friedman OUTTEN & GOLDEN LLP 601 Massachusetts Ave. NW Second Floor West Suite Washington, DC 20001 Tel: (202) 847-4400 Fax: (202) 847-4410 [email protected] Michael J. Scimone OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Tel: (212) 245-1000 Fax: (646) 509-2060 [email protected] Joseph A. Napiltonia LAW OFFICE OF JOE NAPILTONIA 219 Third Avenue North Franklin, TN 37064 Tel: (615) 734-1199 Fax: (615) 534-4141 [email protected] Attorneys for Plaintiffs and the Proposed Class


in the united states district court for the middle … · 2019. 5. 20. · in the united states...

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