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Kraft Foods Class Action - Lawton & Cates - Madison Lawyers

Over 1,740 Kraft employees will soon be paid for time spent donning and doffing protective clothing.

July 11, 2011 Update

  • The initial mailing of checks will take place on July 13, 2011. If you received an award letter your check should be sent on that date. Most of the former employees who immediately returned the verification letter will also receive checks in the initial mailing.
  • The next mailing will be on July 22, 2011.
  • Because this is a class action the maximum deductions will be taken from the check. It is impossible to deal with deductions on an individual basis. If this means that more was deducted from your check than would be normally required you will be able to file for a refund when you file your tax returns.

 


June 29, 2011 Update

Rust Consulting, Inc. has mailed 1,740 Award Letters to qualified Kraft Class members today. If you are a Class member and have recently moved, please make sure the post office has been informed of your address change so the letter gets forwarded to you. If you are a qualified class member and do not receive an Award Letter by July 13th, please call 608.282.6200 to provide your address information.

The first series of checks to qualified class members who are current Kraft employees is scheduled to be mailed on July 13, 2011

 


June 14, 2011 Update

  • Award Letters
    The award letters will be mailed out by Rust Consulting, Inc. no later than June 29, 2011. We had hoped that they would go out a little sooner; however, it has taken us longer to calculate the final damages and assemble the address list than we had anticipated. We will post on this website the day the Award letters are sent.
  • Payment - Current employees
    If you are a current employee you should receive payment approximately two weeks from the receipt of the award letter.
  • Payment - Former employees
    If you are a former employee your award letter will contain a form for you to return giving the address where you want the check mailed. Return this form immediately. You should receive your check within two weeks of the time Rust Consulting receives the returned form.
  • What if I did not receive an award letter
    Current and former employees who are entitled to an award are on the attached list. If your name is on the list and you have not received an award letter by July 13, 2011 please call Lawton & Cates, S.C. at 608-282-6200 and provide your proper address.
  • How were my damages calculated?

The damage calculation is very complex and required the development of a court approved computer program. The computer program analyzed over a million items of data Your damages were calculated on a daily basis and considered the "donning and doffing time"; hours worked; rate of regular pay and; rate of overtime, if applicable. This information was taken from payroll records at Oscar Mayer. In addition, our consultant has added interest at the prime rate and reduced the total damages by 7.2% as your contribution to attorneys' fees as ordered by the Court. Since this is income, your final check will be reduced by payroll deductions.

Since there are over 1700 people in the class it is impossible to consider individual calculations. This meant it was necessary for us to convince the court that the above procedure was a reasonable method of calculating damages This means that you cannot challenge your individual award since the process mandated by the court was followed for each of the over 1700 employees.

Here is an example of how damages were calculated. If you worked in JCon, the court approved a payment of 9.209 minutes per day for "donning and doffing" time (other donning and doffing times can be accessed through the April 1, 2011 posting). If you worked 250 days a year and earned $14.00/hour the basic damage calculation for one year would be:

250 days x 9.209 minutes = 2,302.25 additional minutes or 38.37 hours.

38.37 hours x $14/hour = $537.19 at regular time

38.37 hours x $21/hour= $805.77 if all additional time was overtime.

In addition, you would be getting interest at the prime rate on the "donning and doffing" time as the time accrued. This rate has varied over the last 5 years but our computer program used the appropriate prevailing prime rate.

 


June 1, 2011 Update

Court Approves Damages and Fees; Crabb Cites Impressive Results

On June 1, 2011 the Honorable Barbara Crabb approved the class damages and attorneys' fees and expenses.This means that you will be receiving an Award Letter in approximately two weeks that advises you of the damages you will be awarded less attorneys' fees of approximately 7.2% of your damages. The actual check will be sent approximately two weeks thereafter if you are a current employee and one week after you return a form providing your current address if you are a former employee. Your normal payroll deductions will be subtracted from the final check.

Judge Crabb commented in her written decision, "The results obtained were impressive and, because they led to changes in pay that will continue into the future, are of greater value to most of the class members than the settlement amount. Taking into consideration counsel's years of work, the difficult legal and practice issues of litigating a class action case of this type and the uncertainty of obtaining any fee at all, I find that the fee enhancement in this case is reasonable, fair and well supported by the work performed by counsel"

You can estimate your gross damages by 1) determining the days you worked for the defendant between June 1, 2005 and December 26, 2010; 2) Determining the "donning and doffing" time for those days (such times can be found at www.lawtoncates.com website posting on April 1, 2011); 3) determining whether the "donning and doffing" time should be calculated at regular time or overtime, based on a 40 hour work week; 4) calculating interest for the "donning and doffing" time at the prime rate of interest; and 5) adding 1-4 above.

 


May 20, 2011 Update

 


May 18, 2011 Update

Answers to Frequently Asked Questions

  • Who will get paid?
    • Employees who were required to don and doff protective clothing and were not paid for the time involved will receive back pay for the changing time. However, if you were required to don and doff protective clothing but were being paid at the time you changed, you will not receive back pay for the changing time.
    • If you qualify for back pay you will be paid for the changing time beginning June 1, 2005 through December 26, 2011.
    • Qualifying employees should have already been paid for 12 minutes per day donning and doffing time from December 26 through May 15, 2011. Thereafter qualifying employees will receive 12 minutes per day for changing time. No attorneys fees will be taken from the recovery for payments beginning December 26, 2011.
  • How Much? There are 1,742 class members and each one will be getting a different amount. The average qualifying employee will be getting about $12.75 per week. This will vary depending upon the number of days worked in a week, overtime, base pay, and donning and doffing time. However, if you multiply the number of weeks you worked times $12.75 this will give you a rough average. If you worked more than two years the interest earned will offset any attorneys' fees. Of course, payroll deductions will be taken.
  • When? We are still hoping that qualifying employees will be paid by July 4, 2011. The court still has to rule on total damages and attorneys' fees. After the court has ruled it will take approximately 4 weeks to be paid. We will post the date of the court order on this website. The check will come from Rust Consulting, Inc., the fund administrator for Kraft.

 


  • May 1, 2011 Update

    Kraft has confirmed that they have deposited all required funds into the Settlement Fund pursuant to the parties' Settlement Agreement in Spoerle et al.

    As soon as the Court enters an Order confirming the damage amounts and award of attorneys' fees, Kraft will transfer the fund to their Settlement Administrator - Rust Consulting.

    In the meantime, Rust will begin to prepare for delivery of the award letters and payment of the checks. Lawton & Cates, S.C. has prepared an excel spreadsheet of any changed addresses forwarded to us and will forward this to Rust Consulting.

    The petition to approve the damages and to award attorneys' fees has been filed. All briefing on the petition must be completed by May 21, 2011. Thereafter the court will consider the papers and enter an order. We do not know how long this will take. Within approximately two weeks of the court order award letters will be mailed. Checks will be mailed two weeks thereafter.

    Missing Persons

    We currently do not have the mailing addresses of 192 persons on the attached list. If you know the whereabouts of any of these persons please have that person contact Leanne at Lawton & Cates, S.C., 608-282-6200 and provide a current mailing address. The money allocated to persons not found in 9 months will be returned to Kraft.

     


    • April 21, 2011 Update

      On April 21, 2011 at 2:23 p.m. the court sent electronic notification that it received our filing (plaintiffs fee petition). The court set the following schedule: Briefing Deadlines as to [299] Motion for Attorney Fees Petition for approval of class damages, approval of lodestar fees and expenses, and approval of enhanced fees. Brief in Opposition due 5/11/2011. Brief in Reply due 5/23/2011.

       



    • April 15, 2011 Update
      • The class wide damages have been agreed upon by Kraft and us at $4,187,692.93. This amount includes interest at the prime rate. The amount was calculated by our damages expert using the methodology approved by the court. Kraft agreed that his numbers were accurate. We verified the accuracy of the payroll data provided by Kraft by independently calculating the damages of two class members using actual payroll stubs that they had kept. We discovered the Kraft payroll records were more accurate since the payroll stubs did not always indicate department changes. The agreed upon amount will be deposited by Kraft in an account before May 1, 2011.
      • The account will be administered by Rust Consulting. The court still must approve the settlement amount and attorneys fees. After that is completed Rust Consulting will be sending out award letters that will indicate the amount that you will be receiving. If you are a current employee of Kraft you will receive your settlement check two weeks later. If you are a former employee of Kraft you will receive a form that you must complete to advise them where to send your check. The award letter will indicate your share of the damages less payroll deductions and contributions to attorneys' fees. We still anticipate payment by July 4, 2011.
      • There are 1,742 employees who will be receiving settlement checks. Their names are included on the attached list. If your name is not on the list it probably means that you were not employed by Kraft after June 1, 2005 or you did not work for a department that required "donning and doffing" of the protective items without pay.
      • Kraft has agreed to pay 12 minutes per day for "donning and doffing" time beginning December 26, 2010. In one of your May paychecks you will be receiving a lump sum check covering the period December 26, 2010 to the date covered by that paycheck. Regular payroll deductions will be taken from this check. However, no attorneys' fees will be deducted. Thereafter, you will be receiving payment for the 12 minute "donning and doffing" time with your regular paycheck.
      • The attorneys will be submitting a petition to the court to finalize the settlement and to award attorneys fees in the near future, probably early next week. That petition will be posted on this website when filed.

 


 

    • April 1, 2011 Update
      • Initial Damages Update Work Completed.

        Our data expert has completed the transfer of payroll information from the Kraft system to his system, ironed out differences in the data system resulting from a changeover to a new software system since the Settlement, verified the data against class member paystubs, and proposed a first damages total (including updated interest) for presentation to Kraft. Kraft has 14 days to identify any errors or disputes in the calculation. Disputes that cannot be resolved will be decided by the court. In the meantime, we anticipate that the total damages will be close to $4 million.

        The method our data expert used to perform the updated calculation is the method that he developed, which was approved by the court at the time of the settlement in 2008. The method was crucial to our proceeding with the lawsuit and ultimately the settlement, which could not have moved forward without a classwide method for computing back wages for the class a whole.

        Updating the damage total was a monumental undertaking as it involved transferring millions of items of data and multiple segments as well as addressing differences presented by a new Kraft software system since the original damage calculation was developed. The final computer program takes into account, for each of the over 1,700 employees, who will benefit from this lawsuit:

        • The number of hours each individual class member worked each day for over 5 1/2 years;
        • The department or departments in which that person worked each day;
        • The donning and doffing time for that department, based upon the times set by the court approved settlement. See the attached report: This report shows how many minutes each employee will get paid for donning and doffing each day they worked in a specific department;
        • The individual employee's rate of pay;
        • Whether each individual employee's hours in a particular week exceeded 40 (and thus whether donning and doffing time for the week should be paid as overtime at time and a half rate in any given week);
        • Calculating interest at the historical prime rates through May 1, 2011;
        • Checks on the validity of the data Kraft provided.

         

      • Validity of Data.

        Our data expert went to great lengths to cross-check the data provided by Kraft against the pay stubs provided by class members for this purpose. In combination with our expert's internal cross-checking of the data, the sample paystubs helped him to ensure that his program properly counted the number of days each individual worked. This in turn ensured that each individual was credited the right number of donning and doffing minutes for each week.

        We are now satisfied that the data -- which are the only source of the daily department assignments we needed for applying the donning and doffing times -- provide the best possible approximation of what class members would have earned had their donning and doffing times been paid over the years covered by the lawsuit.

        Note that the settlement does not permit recalculation of damages on an individual basis.

         

      • What is next?

        We have presented our damage calculations to the attorneys for Kraft. Kraft has two weeks to point out errors in the calculations. If we are unable to agree that on the total, the court will resolve the dispute. We hope this does not become necessary. We will keep you posted.

        We have also presented Kraft's attorneys with our total attorney hours, hourly rates (this is called the attorneys' "lodestar") plus out of pocket expenses. The Settlement requires Kraft to reimburse these amounts directly -- over and above the total damages to the class. If Kraft disputes these amounts, we will try to resolve the dispute but again, if we are unable to do so, the court will decide.

        The Settlement also allows for a separate fee enhancement of the "lodestar" Kraft will pay, subject to the court's approval. As your original settlement notice explained, this piece would be paid from the total class recovery, as a way of compensating counsel for (1) the risk involved in expending the enormous number of hours and over $100,000 in expert fees and other costs on pure contingency (the law firm took the risk of incurring the cost of these expenses knowing we would not be reimbursed unless we won the case), and (2) the delay in compensation over the four years it took to litigate the case. Courts frequently allow a fee enhancement that effectively doubles the lodestar in contingent cases of this nature. The enhancement we request will be much smaller relative to the lodestar we have submitted to Kraft -- around 20%. This is consistent with our original assurance that the enhancement would reduce your recovery by only a small fraction. Based on the information available to us at this time, we believe it will be no more than 10%.

        If you object to the fee enhancement please forward your written objection to Lawton & Cates, S.C., 10 East Doty Street, Suite 400, Madison, Wisconsin, 53703 and we will forward it to the court when we file our fee petition with the court for approval.

        The fee petition will be posted on this website when filed with the court.

         

      When will you learn how much you are getting paid?
      • Once the damages are finally determined, Kraft will send you a letter advising you of the damages you will be receiving.
      • This amount will be gross damages less payroll tax deductions and the fee enhancement.
      • Two weeks later you will be forwarded the actual check.
      • We previously predicted that this process will be completed by July 4, 2011. We are on target to meet that deadline.
      • The average damage figure for the 1700+ members of the class is $2,400. However, your check could be significantly higher or significantly lower than that average, depending on the number of weeks you worked, and the donning and doffing time allocated to the departments in which you worked.
      • Additional Retro and Future Pay.
        • You will receive a check from Kraft that will be your back pay for donning and doffing during your work day through December 31, 2010.
        • You will also be receiving a check from Kraft as back pay for donning and doffing during your work day from January 1, 2011 until the date they begin adding 12 minutes per day on your regular pay. Thereafter, Kraft has an obligation to pay you 12 minutes per day for the time spent donning and doffing.
        • No attorneys' fees will come from any payments for wages earned for donning and doffing after December 31, 2010.
      • 401k Credit
        • Kraft has also agreed that for purposes of calculating the credit for years of service under the OM1 Pension Plan, the time spent in donning/doffing over the class period should be included at the rate of 1/5 of an hour of service for each day worked.
        • The OM1 Pension Plan provides a flat dollar pension benefit which does not take into account the participants' wages earned. Rather, employees obtain service credits, which are then used to calculate their pension benefit. Generally, a year's service credit is received if the employee works at least 1,000 hours in the calendar year. Under the terms of the OM1 Pension Plan, participants earn 1/5 of an hour of service for each day worked for clothes changing time. Accordingly, Class Members will then be credited for 1 hour of service for each week worked during each year (or, if they were employed the full year - approximately 52 hours).
        • This agreement has been forwarded to counsel for the Union.
      • Next posting-April 15, 2011

 




  • March 15, 2011 update
    • We had a great turnout at the Labor Temple. I hope we answered most of your questions. A video recording of the meeting is available soon for those who were unable to attend the meeting and for those who wish to hear the message again.
    • Future pay. Kraft will pay 12 minutes per day for all departments that were in the class. You will be receiving a check for the additional pay for the donning and doffing time from the beginning of this year. This will be in addition to the back pay from the lawsuit. After the details have been worked out you will receive the additional 12 minutes per day on your monthly paycheck.
    • The additional time will be credited towards your 401K. Counsel for your union has been advised and will be involved in the details.
    • We seem to be making reasonable progress in receiving and incorporating the payroll data necessary to determine past damages. However, I still do not have a good estimate concerning when you will be paid. We are still hoping it will be by the fourth of July.

 




    • March 1, 2011 update
      • Remember the party at the Labor Temple on March 2, 2011, 5:30 p.m. to 7:30 p.m. and March 5, 2011, 4 p.m. to 6 p.m. If you worked at Oscar Mayer between May 1, 2005 and the present and were required to don and doff special clothing you are invited.
      • We have data from Oscar Mayer and our expert is starting to compile it. However, the process is going slowly and we will need more data. Hopefully we will have a better idea when it might be done at our next posting on March 15, 2011.

 




    • February 15, 2011 update
      • Lawton & Cates is hosting an informational get-together for all who were involved with the doffing and donning class action case. The same information will be shared on two separate dates to accommodate diverse schedules and because the Labor Temple can only accommodate up to 300 people. Due to size limitations at the Labor Temple, we must ask that only employees attend. Come to hear an update on the status of your case at the Labor Temple, 1602 S Park Street, Madison WI. Appetizers, beer and soda will be provided. Please use this online form to indicate whether you can attend on Wednesday, March 2nd from 5:30 - 7:30 p.m. or Saturday, March 5th from 4:00 - 6:00 p.m.
      • On February 10, 2011 Kraft forwarded the wage and hour data necessary to determine the losses to each class member to our computer expert. This was about two weeks in advance of the deadline imposed by the court. Our expert will begin analyzing the data immediately and calculating damages as required by the court ordered Damage Methodology.
      • The plaintiffs will be filing their petition for fees in the near future and posting it on this website.

 




    • February 1, 2011 update
      • By February 22, 2011:
        • Oscar Mayers will submit payroll records of all workers involved in this case to our computer expert to determine total damages. The method of determining damages is spelled out in the Notice of Class Settlement on pages 3 and 4 (PDF). This document can be accessed at this website. Many people have asked whether overtime will be used where earned and whether interest will be added. The answer to both is yes. Payroll taxes and a portion of attorneys' fees and expenses will be deducted.
        • The exact methodology for calculating your damages is discussed in Exhibit D (PDF). Cafeteria workers are included in the case, even though they are not identified in Exhibit C (PDF).
        • The attorneys will submit their petitions for fees and expenses. The method for determining fees is explained at page 7 of the Notice of Class Settlement. The attorneys will place their fee petition on this website and you will be given an opportunity to object if you feel it is warranted.
      • In future postings we will advise you how you will receive your settlement checks and have a better idea when they might be received.
      • If your address has changed or your name has changed you should advise Kraft of the change and also e-mail the information to .
      • You may not be retaliated against for participating in this case.
      • We are currently working with Kraft to insure that you will be compensated for "donning and doffing" time in the future.
      • We will next update this website on or about February 15, 2011.

 




    • January 10, 2011 - Supreme Court Denies Certiorarai
      The Supreme Court of the United States of America announced today that it will not review the decision of the 7th Circuit Court of Appeals that granted judgment in favor of the Kraft employees at the Oscar Mayer's plant in Madison Wisconsin. This means that all appeals have been exhausted and the employees will be paid for the time "donning and doffing" protective clothing. It was a long hard struggle but we have finally won. It will probably take 120 days to analyze the final figures and distribute the funds. Keep watching this website for updates.

 




  • December 6, 2010 - Employees' lawyers file opposition to Kraft's Petition for Certiorari
    On November 2, 2010 Kraft petitioned the U.S. Supreme Court to review the decision of the 7th Circuit Court of Appeals that ruled in favor of the employees. On December 3, 2010 the lawyers for the employees filed an opposition brief Brief - PDF. All of the attorneys who have previously worked on this case on behalf of the employees participated in the preparation of the brief. In addition, a Public Interest Law Firm that was formed by Ralph Nader volunteered to advise us concerning the brief and was very helpful. Lawton & Cates, S.C. and Miner, Barnhill & Galland, LLP coordinated the briefing and Sarah Siskind and Barry Blonien of Miner, Barnhill and Galland, LLP did the major work in preparing the drafts.

    The Supreme Court takes only a small percentage of the petitions that are filed. Therefore, the major thrust of our opposition was that this case was not of sufficient nationwide importance to merit Supreme Court consideration.

    This petition will probably be considered by the court in a closed conference on January 7, 2011. Unless four of the nine Justices vote to take the case, the petition will be denied and we will immediately begin the steps to end the case and distribute the lost wages. This could take 60-90 days. If the Supreme Court grants the petition we will vigorously argue in the Supreme Court that the decisions of the lower court should be affirmed. We will immediately advise you of the Supreme Court's opinion on the petition.
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