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Ross v. US Bank National Association

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


December 17, 2009

ANN ROSS, MAURITA PRASAD, TAMARA BURKHART AND NANETTE HOUSKEN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
US BANK NATIONAL ASSOCIATION, DBA US BANK, AND DOES ONE THROUGH TWENTY-FIVE, INCLUSIVE, DEFENDANT.

The opinion of the court was delivered by: Honorable Susan Illston

Action Filed: April 9, 2007

CLASS ACTION JOINT REPORT REGARDING CONTENT AND TIMING OF CLASS NOTICE; [PROPOSED] ORDER

PURSUANT TO THE ORDER CONDITIONALLY GRANTING PLANTIFF'S MOTION FOR CLASS CERTIFICATION AND DIRECTING FORMULATION OF CLASS NOTICE:

PLEASE BE ADVISED that the parties have met and conferred concerning the content and timing of the Notice to Class Members and hereby submit this Joint Report regarding the same.

1) The parties have agreed upon a "Notice of Class Action" and submit the same to the Court for approval. The proposed "Notice of Class Action" is attached hereto as Exhibit 1.

2) Regarding the timing of the class notice, Defendant anticipates needing until January 19, 2010 to prepare and submit the class list to the class administrator. The class 28 administrator will then need approximately two weeks, until February 2, 2010, to prepare and send out the notice to the class members.

3) The parties have agreed, and hereby request the Court to refer the case to mediation rather than to early neutral evaluation under the Court's ADR program.

DATED: December 16, 2009

LAW OFFICES OF KEVIN T. BARNES By: Gregg Lander, Esq. Kevin T. Barnes, Esq. Attorneys for Plaintiffs

DATED: December 16, 2009

DAVIS WRIGHT TREMAINE LLP By: Judith Droz Keyes, Esq. Stuart W. Miller, Esq. Attorneys for Defendants

[PROPOSED] ORDER

1) The Class Notice attached hereto as Exhibit 1 is approved by the Court.

2) The Court hereby refers this case to mediation under the Court's ADR program in lieu of early neutral evaluation as previously ordered.

IT IS SO ORDERED.

Honorable Susan Illston

EXHIBIT 1

NOTICE OF CLASS ACTION

TO: ALL PERSONS WHO ARE EMPLOYED OR WHO, SINCE APRIL 9, 2003, HAVE BEEN EMPLOYED, IN THE STATE OF CALIFORNIA BY U.S. BANK AS AN HOURLY-PAID IN-STORE EMPLOYEE THIS NOTICE MAY AFFECT YOUR RIGHTS

PLEASE READ IT CAREFULLY BASIC INFORMATION

1. WHY SHOULD I READ THIS NOTICE?

Four former employees of U.S. Bank National Association ("U.S. Bank") in California have sued U.S. Bank claiming that they are owed wages and other pay for alleged off-the-clock work and for meal periods and rest breaks that they claim were not provided in accordance with California law. They also seek penalties as allowed by law for such alleged violations.

The lawsuit is pending before the Honorable Susan Illston of the United States District Court, Northern District of California (the "Court"). On November 25, 2009, the Court conditionally certified the lawsuit as a class action. The purpose of this notice is to inform you that your rights may be affected by the lawsuit. Unless you choose to exclude yourself, you are a member of the lawsuit class. This notice is given by order of the Court.

By conditionally certifying a class action and ordering the issuance of this notice, the Court is not suggesting that the plaintiffs will win or lose this case. The plaintiffs must prove their claims at a trial.

There is no money available now, because the Court has not decided whether U.S. Bank did anything wrong. There is no guarantee that money ever will be obtained. However, your legal rights are affected, and you have a choice to make now.

You have the following two options:

A. Do nothing: You can choose to do nothing and stay in this lawsuit as a member of the class. By doing nothing, you preserve your right to the possibility of getting a portion of any money that may be awarded in a trial or a settlement of this lawsuit. However, by staying in this lawsuit, you give up any right to sue U.S. Bank separately about the legal claims involved in this lawsuit, and you will be legally bound by all of the orders that the Court issues in it.

B. Exclude yourself: You can exclude yourself from this lawsuit by returning the attached opt-out postcard within 30 days from the date of mailing of this Notice. If you ask to be excluded from this lawsuit and money is later awarded, you will not share in any recovery. By excluding yourself, you preserve your right to sue U.S. Bank separately about the legal claims in this lawsuit, and you will not be legally bound by the orders that the Court issues in it.

2. WHY DID I GET THIS NOTICE?

You received this notice because U.S. Bank's records show that you are currently employed, or were formerly employed on or after April 9, 2003, by U.S. Bank as an hourly-paid employee in a U.S. Bank in-store branch in the State of California.

3. WHAT IS A CLASS ACTION AND WHO IS INVOLVED?

A class action is a type of lawsuit in which one or more persons called "Class Representatives" (in this case, Ann Ross, Maurita Prasad, Tamara Burkhart, and Nanette Housken) sue on behalf of all the members of a group of people who allegedly have similar claims. The class action seeks to recover damages for all members of the group, without the necessity of each member filing an individual lawsuit or appearing as an individual plaintiff. The group of people is called the "Class" or "Class Members."

The Class Representatives who sued U.S. Bank and all of the Class Members like them are called "Plaintiffs." U.S. Bank, the company being sued in this lawsuit, is called the "Defendant." One court resolves the issues for everyone in the Class -- except for those people who choose to exclude themselves from the Class.

THE CLAIMS IN THIS LAWSUIT

4. WHAT IS THIS CLASS ACTION ABOUT?

The lawsuit alleges that U.S. Bank improperly failed to pay wages to Class Members for work performed during clocked-out meal periods and before and after the scheduled shift on Sunday. The lawsuit also alleges that U.S. Bank failed to comply with California law regarding rest breaks and meal periods on Sundays.

U.S. Bank denies all of the allegations in the lawsuit, and asserts that it complied with all laws relating to payment of wages and rest breaks and meal periods.

5. WHO IS IN THE CLASS?

The Court has conditionally certified two classes, collectively called "the Class" in this notice:

Class 1:

All hourly employees of U.S. Bank who worked in a California in-store branch during a Sunday shift, during the period April 9, 2003, through the date of judgment in this matter.

Class 2:

All hourly employees of U.S. Bank who worked a shift of more than five hours at a U.S. Bank California in-store branch during the period April 9, 2003, through the date of judgment in this matter.

The Class will not include those people who choose to exclude themselves.

6. WHAT TYPE OF RECOVERY DOES THIS CLASS ACTION SEEK?

Plaintiffs seek unpaid wages for alleged off the clock work, and penalty wages for alleged meal and rest period violations on Sundays. Plaintiffs also seek waiting-time penalties, interest, costs, and attorneys' fees. U.S. Bank denies that it violated any laws or owes any money to Class Members.

7. HAS THE COURT DECIDED WHO IS RIGHT?

No, the Court has not decided whether Plaintiffs or Defendant is right. By allowing this lawsuit to proceed conditionally as a class action and sending this notice, the Court is not suggesting that either the Plaintiffs or the Defendant will win or lose this case. In order to recover money from U.S. Bank, Plaintiffs must prove that U.S. Bank violated the law and that Class Members are legally entitled to additional wages or penalties.

8. HOW DOES THE COURT DECIDE WHO IS RIGHT?

During a trial, a jury and the judge will hear evidence on the basis of which a decision will be reached. No trial date has been set for this lawsuit, and the Court has not yet determined a trial methodology.

9. IS THERE ANY MONEY AVAILABLE NOW?

No money is available now. There is no guarantee that money will ever be obtained. If any money is obtained, you will be notified about the procedure for submitting a claim.

YOUR RIGHTS AND OPTIONS

10. DO I HAVE TO DO ANYTHING TO REMAIN A CLASS MEMBER?

If you wish to remain a Class Member and have your interests represented by the Class Counsel approved by the Court, you do not need to take any action at this time. You will receive further notices as the case progresses. If you remain a Class Member, you will be legally bound by any decision, favorable or unfavorable, in this lawsuit. If you remain a Class Member, and the Plaintiffs obtain money as a result of a trial or a settlement with respect to an issue that pertains to you, you will be notified about the procedure for submitting a claim for payment.

11. IF I REMAIN A CLASS MEMBER, WILL I HAVE TO DO ANYTHING?

If you remain a Class Member, you may be asked to respond to written questions about your employment at U.S. Bank. There also is a possibility that you may be asked by Class Counsel or by U.S. Bank's attorneys to answer questions in person or under oath, including at a deposition or at trial.

12. HOW DO I EXCLUDE MYSELF FROM THE CASE?

If you want to exclude yourself from the Class, you must make that request in writing. The Court will exclude any member who requests exclusion. To request to be excluded, you must fill out, sign, and return the enclosed postcard. The postcard must be postmarked by ____________ (30 days), 2010 and mailed to the court-appointed administrator at the following address.

Rust Consulting, Inc. 625 Marquette Avenue, Suite 880 Minneapolis, MN 55402

If you exclude yourself from this lawsuit -- which is also sometimes called "opting-out" -- you will receive no benefits from any judgment or settlement obtained by the Class. If you do not exclude yourself from this lawsuit, any judgment rendered by the Court or jury, whether favorable or not, will be binding upon you. If you do not exclude yourself from this lawsuit, you may, if you so desire, enter an appearance in this lawsuit through legal counsel of your choice.

THE PLAINTIFF AND LAWYERS REPRESENTING YOU

13. WHO REPRESENTS THE CLASS?

Plaintiffs Ann Ross, Maurita Prasad, Tamara Burkhart, and Nanette Housken have been approved by the Court as the class representatives for the Class. They are former employees of U.S. Bank who were employed in California as hourly-paid in-store employees.

14. DO I HAVE A LAWYER IN THIS LAWSUIT?

Yes. The Court has appointed the following lawyers as counsel for the Class: Kevin T. Barnes, Esq. Los Angeles, CA 90036-5627 Gregg Lander, Esq. Tel: (323) 549-9100 / Fax: (323) 549-0101 LAW OFFICES OF KEVIN T. BARNES Email: Barnes@kbarnes.com 5670 Wilshire Boulevard, Suite 1460

15. HOW WILL CLASS COUNSEL BE PAID?

Class counsel are representing the Class on a contingency fee basis. In class actions, class counsel who generate a monetary recovery for the benefit of the class are entitled to request an award of reasonable costs and attorneys' fees. If a monetary recovery is obtained, Class counsel will make a request to the Court for costs and attorneys' fees to be paid in addition to or as part of any judgment or settlement funds that are obtained. All applications for costs and attorneys' fees are subject to Court approval. In the event Plaintiffs are unsuccessful, persons who elect not to be excluded from the Class may be subject to reasonable court costs incurred by U.S. Bank.

16. PROHIBITION AGAINST RETALIATION

California law prohibits retaliation by an employer against any person who participates in or assists in the litigation of a wage and hour lawsuit, such as this one. The Court will not tolerate retaliation regardless of whether you choose to exclude yourself from this lawsuit. Whichever option you choose will in no way affect your employment relationship, if any, with U.S. Bank.

ALL QUESTIONS ARE TO BE ADDRESSED TO CLASS COUNSEL OR TO THE ADMINISTRATOR. PLEASE DO NOT ADDRESS ANY QUESTIONS TO THE COURT. CLASS COUNSEL IS:

Kevin T. Barnes, Esq. Gregg Lander, Esq. LAW OFFICES OF KEVIN T.BARNES 5670 Wilshire Boulevard, Suite 1460 Los Angeles, CA 90036-5627 Tel: (323) 549-9100 / Fax: (323) 549-0101 Email: Barnes@kbarnes.com

REQUEST TO BE EXCLUDED FROM THE CLASS To stay in the Class, do not return this postcard.

To remove yourself from the Class, complete and return this postcard postmarked by ________________, 2010, to:

Rust Consulting, Inc. 625 Marquette Avenue, Suite 880 Minneapolis, MN 55402

By signing and returning this form, I request to be excluded from the class action lawsuit entitled Ross et al. v. U.S. Bank National Association, United States District Court, Northern District of California, Case No. C 07-2951 SI.

Full Name: _________________ _________________ _______________________________

First Middle Last

Address: ___________ _________________________________________________________

Number Street __________________________________________ _______________ ___________________

City State Zip Code

Signature: _____________________________________________

Date: __________________

Date: __________________________________________

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I, the undersigned, am over the age of 18 years and not a party to this action. My business address is 5670 Wilshire Boulevard, Suite 1460, Los Angeles, California 90036-5627, which is 4 located in Los Angeles County, where the service herein occurred. 5

On the date of execution hereof, I caused to be served the following attached document/s:

on the interested parties in this action, addressed as follows:

Judith D. Keyes, Esq. Stuart Miller, Esq. DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 San Francisco, CA 94111 Tel.: (415) 276-6512 / Fax: (415) 276-6599 Email: JKeyes@dwt.com using the following service method(s):

X VIA ELECTRONIC SERVICE: The above documents were electronically filed with the Clerk of the Court using the CM/ECF system, which sent notification of such filing to the above interested parties.

I DECLARE under penalty of perjury that the foregoing is true and correct.

Executed on December 16, 2009, at Los Angeles, California.

Gregg Lander

20091217

© 1992-2009 VersusLaw Inc.



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