This Notice of Class Action Settlement (“Notice”) describes your ability to share in the Class Action Settlement or your ability to “opt-out” of the Class Action Settlement. Pursuant to a “Joint Stipulation of Settlement and Release” filed with the United States District Court - Northern District of California (the “Settlement”), the Court has preliminarily approved a class action settlement and directed that you receive this Notice.
You have received this Notice because Brinderson’s records indicate that you are a member of the Class. The settlement will resolve all Claims alleged by members of the Class described below during the Class Period.
The Court will hold a Final Approval (or “Final Fairness”) hearing concerning the proposed Class Action Settlement on July 19, 2018, at 9:00 a.m., located at the United States District Court - Northern District of California, San Jose Courthouse, Courtroom 4 - 5th Floor, 280 South 1st Street, San Jose, CA 95113, before the Honorable Edward J. Davila, judge presiding.Top
a. “Action” as used herein shall mean the present class action pending before the United States District Court - Northern District of California entitled “Daniel Garza v. Brinderson L.P. et al.” 15-CV-05742 EJD.
b. “Brinderson” as used herein shall mean Defendants Brinderson L.P. and Brinderson Constructors, Inc., and their parents, subsidiaries, affiliates, related business entities, insurers, and all of their employees, officers, agents, attorneys, stockholders, partners, predecessors, successors and assigns.
c. “Claims” as used herein shall mean the claims asserted in the Action and as described below in Paragraph 3.
d. “Claims Administrator” shall mean Kurtman Carson Consultants (KCC).
e. “The Class” as used herein shall mean all persons for whom Brinderson Constructors, Inc. or Brinderson L.P. obtained a consumer report during the time period of December 2, 2010 through the date of preliminary approval is granted. The Class is a nationwide class and is not limited to California.
f. “Class Counsel” as used herein shall mean Shaun Setareh and Thomas Segal of the Setareh Law Group.
g. “Class Period” as used herein shall mean the period of time between December 2, 2010 and April 10, 2018 (the date of preliminary approval).
h. “Complaint” as used herein shall mean the most recent amended version of the operative pleading filed on behalf of Plaintiff, individually and on behalf of all members of the Class in the Action.
i. “Court” as used herein shall mean the United States District Court – Northern District
j. “Effective Date” as used herein shall mean the latest of the following dates: (i) the date upon which the Court serves a final approval order of the Settlement if no Class Members file objections to the Settlement; or (ii) if a Class Member files an objection to the Settlement, the Effective Date shall be the date thirty (30) days after the date upon which the Court grants final approval of the Settlement if no appeal is initiated by an objector; or (iii) if a timely appeal is initiated, the Effective Date shall be the date of final resolution of that appeal (including any requests for rehearing and/or petitions for certiorari), resulting in final judicial approval of the Settlement. If no objections are filed, there is no right of appeal and the Effective Date shall be the date the Court serves the Order finally approving the Settlement. In this regard, it is the intention of the Parties that the Settlement shall not become effective until the Court’s order approving the Settlement has become completely final and there is no further recourse by any appellant or objector who seeks to contest the Settlement.
k. “Plaintiff” as used herein shall mean Daniel Garza, acting on his own behalf and on behalf of all members of the Class.
l. “Party” or “Parties” as used herein shall mean Plaintiff, Brinderson, or both, as may be appropriate.
m. “Preliminary Approval” as used herein shall mean the date when the Settlement has been preliminarily approved by the Court.
n. "Class Action Settlement” as used herein shall mean the terms and conditions of the settlement of the Action.
o. “Settlement Amount” as used herein shall mean the non-reversionary sum of One Million and Five Hundred Thousand U.S. Dollars ($1,500,000.00), which is inclusive of payments to settlement class members, attorney’s fees and costs, class representative enhancements and claims administration expenses as awarded by the Court. It is understood and agreed that Brinderson’s maximum responsibility under the Settlement shall not exceed the sum of $1,500,000.00.
p. “Settlement Class” as used herein shall mean any member of the Class who does not opt-out of the settlement.Top
On December 2, 2015, this Action was filed against Brinderson L.P., Brinderson Constructors, Inc., and Chevron U.S.A. on behalf of the Class. Chevron U.S.A. was subsequently dismissed from the case by Plaintiff.
The Action seeks damages, attorneys’ fees, and penalties on the basis of allegations that Brinderson allegedly violated the Fair Credit Reporting Act (“FCRA”), the California Investigative Consumer Reporting Agencies Act (“ICRAA”), and the California Consumer Credit Report Agencies Act (“CCRAA”) by allegedly failing to obtain proper authorization to obtain consumer reports on employees and potential employees.
Brinderson denies the allegations raised in the Action and states that it did not violate the law and has no liability for any of the Claims of the members of the Class. Brinderson contends that it properly obtain authorization for all individuals for whom it obtained a consumer report.Top
The Parties and their respective attorneys have conducted investigations of the facts and law during the litigation of the Action, including negotiations between the Parties and analysis of documents and other information provided by Brinderson, among other things. The attorneys have analyzed the applicable law as it relates to Plaintiff’s allegations, the defenses thereto, and the damages claimed by Plaintiff.
On December 5, 2017, the parties attended mediation before Mediator Mark Rudy, Esq. The case resolved at the mediation.
Plaintiff and their counsel believe that the claims asserted in the Action have merit. However, Plaintiff’s counsel recognizes and acknowledges the expense and length of continued proceedings necessary to prosecute the Action against Brinderson through trial and beyond to a likely appeal. Plaintiff’s counsel has also taken into account the uncertainty of the outcome and the risk of litigation. In the absence of settlement, Plaintiff would have to secure class certification over Brinderson’s strenuous objection with respect to the claims. Additionally, at trial, Brinderson would have the right to contest liability. This case involves many unresolved factual and legal issues. In Class Counsel’s judgment, were this case to proceed, it is uncertain whether Plaintiff would succeed at the certification stage, whether Brinderson would be found to have violated the law, as alleged, and whether the amount of damages awarded would be more than the proposed Settlement Amount.
Brinderson believes that the Claims asserted in the Action are without merit. Accordingly, Brinderson has denied and continues to deny the Claims alleged in this Action and all charges of wrongdoing and liability. Although Brinderson has vigorously contested the allegations in the Action and denies that it committed any wrongdoing or violation of law, it believes that further litigation of this case would be protracted, expensive, and contrary to its best interests. Substantial amounts of time, energy, and other resources have already been devoted to defending Brinderson against the Action, and unless there is a settlement, that situation will continue through trial and appeal. In light of these realities, Brinderson believes that a settlement pursuant to the terms of the Settlement is the best way to resolve the Action while minimizing its own further expenditures and disruption to its business.Top
Daniel Garza is the Plaintiff in this Action, acting on behalf of himself individually and on behalf of the Class.
Brinderson L.P. and Brinderson Constructors, Inc. are the Defendants. Chevron U.S.A. is no longer a Defendant in the case and has not contributed to the settlement amount.Top
Attorneys for the Plaintiff & the Class are:
Attorneys for Brinderson are:
Lisa M. Bertain
Without admitting any wrongdoing, Brinderson has agreed to pay the Settlement Amount to resolve the Action, which sum includes payment of: (1) payment of Individual Settlement Amounts to the Settlement Class; (2) settlement administration costs; (3) the Court-approved enhancement award to the named Plaintiff and two additional potential class representatives (Jeremy Enoex and Anthony Herrrera); and (4) the Court-Approved attorneys’ fees and costs to Class Counsel.
The following is a summary of the terms of the Settlement. The specific and complete terms of the proposed settlement are stated in the Joint Stipulation of Settlement and Release (the “Settlement”), a copy of which is on file with the Court and can be obtained at the Clerk’s Office, United States District Court – Northern District of California, San Jose Courthouse, Courtroom 4 - 5th Floor, 280 South 1st Street, San Jose, CA 95113.
Individual Settlement Amounts. Class Members who do not opt-out of the settlement will all receive the same pro rata share of the Net Settlement Fund. If any Class Members opt-out of the settlement, their allocated payment will be redistributed among Settlement Class Members who do not opt-out on a pro-rata basis. However, under no circumstances shall class members receive more than two times what their pro-rata distribution would be if all class members participated in the settlement. To the extent the pro-rata share exceeds two times the amount calculated, Settlement Class Members will only receive two times the amount calculated and any remaining amount shall be distributed to Goodwill Industries.
The settlement payments do not constitute wages and the amounts paid will be reported on a IRS Form 1099. The Claims Administrator will pay all Settlement Class Members, in accordance with the terms of the Settlement, within thirty (30) calendar days of the Effective Date.
Binding Effect and Release of Claims. Upon entry of the Final Judgment in the Action, Plaintiff and each and every member of the Settlement Class (i.e., each and every member of the Class who did not timely submit an Opt-Out Form to the Claims Administrator) shall be deemed to have, and by operation of the Final Judgment shall have fully, finally, and forever released, Brinderson L.P. and Brinderson Constructors, Inc., their parents, subsidiaries, affiliates, related business entities, insurance carriers, and all of their employees, officers, agents, attorneys, stockholders, predecessors, successors and assigns, any individual or entity that could be jointly liable with Defendants, and any client of Brinderson at whose facility the Settlement Class Members worked or intended to work on behalf of Brinderson (including but not limited to Chevron U.S.A. Inc., ConocoPhillips Company, Phillips 66 Company, BP America Inc., BP Corporation North America Inc., ExxonMobil Oil Corporation, Tesoro Refining & Marketing Company, LLC, Tesoro Companies, Inc., Tesoro Logistics, GP, LLC, and all of their parents, subsidiaries, affiliates, related business entities, insurance carriers, and all of their employees, officers, agents, attorneys, stockholders, partners, predecessors, successors and assigns) (the “Released Parties”), from any and all claims, known and unknown, that were or could have been asserted from December 2, 2010 through the date of Preliminary Approval, including but not limited to: all claims under the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq. (“FCRA”); all claims under the California Consumer Credit Reporting Agencies Act (“CCRAA”), Cal Civ. Code § 1785.1 et seq.; all claims under the California Investigative Consumer Reporting Agencies Act (“ICRAA”), Cal. Civ. Code § 1780 et seq.; all claims arising under the law of any other state that are similar to the FCRA, the CCRAA, or ICRAA or that relate to obtaining background checks or consumer reports for employment purposes; and all claims or causes of action that are pled in or reasonably related to claims and potential claims in the Litigation, including but not limited to any and all claims related to or arising out of any background check requested or procured by Brinderson or the disclosures or other documentation provided (or not provided) to any Settlement Class Member in connection with any such background check. The Release will cover the time period up to and including the date the settlement receives preliminary approval by the Court. This Release does not apply to claims that Settlement Class Members may have against any entity other than Brinderson in connection with employment or potential employment solely by the non-Brinderson entity.
In addition, upon entry of the Final Judgment in the Action, with respect to the Claims set forth above, each member of the Settlement Class shall be deemed to have expressly waived and relinquished, to the fullest extent permitted by law, the provisions, rights, and benefits they may otherwise have had pursuant to Section 1542 of the California Civil Code, which provides as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
Enhancement Award to Named Plaintiff. In recognition of the named Plaintiff’s efforts and time as class representative, Class Counsel will request an enhancement award for Plaintiff of not more than Five Thousand Dollars ($5,000), which will be paid from the Settlement Amount as approved and in an amount to be determined by the Court. Class Counsel will also be requesting enhancement awards for Jeremy Enoex and Anthony Herrera, two individuals who Class Counsel was attempting to add to the case as class representatives at the time the case was resolved.Top
A. Do Nothing and Receive Your Share of the Settlement Monies.
To receive your Individual Settlement Amount check, you do not need to do anything to receive your settlement payment. You will release all claims discussed above against the Released Parties and be bound by all terms of the Settlement. You will also be bound by any Final Judgment entered in this Lawsuit if the Settlement receives final approval by the Court.
If you do not cash your Individual Settlement Amount Check within 180 days, it will be held as Unclaimed Property by the State of California and you will be able to obtain the funds by following California’s unclaimed property procedures.
If you are a current Brinderson employee, your decision as to whether or not to opt-out or participate will not affect your employment with Brinderson. State and federal laws protect members of the Class from retaliation based on their decision to participate in a class action settlement.
B. Opt-Out from the Settlement.
You may request exclusion from the Action and the Settlement if you comply with the opt-out procedures stated below. To opt-out, you must submit a signed Request for Exclusion (“Opt-Out”) Form to the Claims Administrator so that it is postmarked no later than June 25, 2018, and received by the Claims Administrator. Members of the Class who elect to opt-out of the Settlement will not receive any monetary payment under the settlement, nor will they be considered to have released their Claims. Exclusion Form can be found here.
The Judgment following approval by the Court will bind all members of the Class who do not opt-out from the Settlement. Any member who does not opt-out may, if they wish, enter an appearance through his or her own lawyer.
If more than 5% of Members of the Class elect to opt-out of the Settlement, Brinderson may rescind
C. Object to the Proposed Settlement.
Any member of the Class who has not opted out of the Settlement and who desires to object to the proposed settlement, must follow the procedure set forth in this subsection C and in Section 10 below in order to appear in person or through counsel at the Final Fairness Hearing, on the date set forth above, and to be heard as to why the Settlement should not be approved as fair, reasonable, and adequate. (No attorneys’ fees will be paid by Brinderson for such counsel’s appearance at the Final Fairness Hearing.)
No person will be heard or entitled to object, and no papers or briefs submitted by any such person will be received or considered by the Court unless, no later than June 25, 2018, he or she files with the United States District Court – Northern District of California, San Jose Courthouse, Courtroom 4 - 5th Floor, 280 South 1st Street, San Jose, CA 95113, and provides same to Class Counsel and Brinderson’s Counsel, at the addresses indicated above, a written Notice of Intention to Appear at the Final Fairness Hearing, together with copies of all papers and briefs proposed to be submitted to the Court prior to the hearing, and serves copies of all such documents filed with the Court by mail or other lawful means on Class Counsel listed above by said date.
If you intend to object to the Settlement, but wish to claim your settlement payment, you need not submit anything other than your objection. If you intend to object to the Settlement and wish to retain your rights and not claim your settlement, you must submit still opt-out of the settlement.
Any member of the Class who does not make and serve his or her written objections and/or notice of intention to appear within the time and in the manner provided above will be deemed to have waived such objections and will be foreclosed from making any objections (by appeal or otherwise) to the proposed settlement. Any member of the Class who is satisfied with the terms of the Settlement need not appear at the hearing.
If the proposed Settlement is approved by the Court, a Final Judgment will be signed by the Judge that will resolve the Claims to the extent provided in the Settlement Agreement and will permanently bar all members of the Settlement Class from prosecuting any and all Claims against the Released Parties.Top
Class Counsel will submit an application for payment to them of an award of $500,000 in attorneys’ fees and up to $25,000 in costs and expenses, which will be paid from the Settlement Amount as approved and in an amount to be determined by the Court. A motion for attorney fees will be filed and posted on the settlement website by June 11, 2018.Top
You are hereby notified that a Final Fairness Hearing will be held before the Honorable Edward J. Davila, on July 19, 2018, at 9:00 a.m., at the United States District Court – Northern District of California, San Jose Courthouse, Courtroom 4 - 5th Floor, 280 South 1st Street, San Jose, CA 95113, to determine whether the proposed Settlement is fair, reasonable, and adequate, and should be finally approved by the Court. The Judge may adjourn the hearing from time to time, without further notification, as the Judge may direct. If the Court does not approve the proposed settlement, or if the Parties terminate the settlement due to material modification of its terms by the Court or due to the occurrence of conditions that authorize the Parties to terminate the settlement, the rights and duties of the Parties would revert to their status prior to the settlement, and members of the Class would have no rights to the settlement amount or terms.
Any member of the Class who objects to the proposed settlement, and who has followed the procedure set forth in above for objecting, may appear in person or through counsel at the Final Fairness Hearing, described above, and be heard as to why the Settlement should not be approved as fair, reasonable, and adequate, or why a dismissal with prejudice should or should not be entered. No person will be heard or entitled to object, and no papers or briefs submitted by any such person will be received or considered by the Court unless, no later than June 25, 2018, he or she files with the Court, at the address indicated above, written notice of intention to appear at the Final Fairness Hearing, together with copies of all papers and briefs proposed to be submitted to the Court at the hearing, and serves copies of them by mail or other lawful means on Class Counsel and Brinderson’s Counsel by said date.
Any member of the Class who does not make and serve his or her written objections within the time and in the manner provided above will be deemed to have waived such objections and will be foreclosed from making any objections (by appeal or otherwise) to the proposed settlement. Any member of the Class who is satisfied with the Settlement need not appear at the hearing.Top
The foregoing is only a summary of the Action and the Settlement. For a more detailed statement of the matters involved in the Action and the Settlement, you may refer to the pleadings, the Joint Stipulation of Settlement and Release, and other papers filed in the Action, which may be inspected during regular business hours.
IF YOU NEED MORE INFORMATION OR HAVE ANY QUESTIONS, you may call Class Counsel. Additional information is also available by calling the Claims Administrator at 1-866-826-0492 or visit the case website at www.BrindersonConsumerReportSettlement.com.
PLEASE DO NOT TELEPHONE THE COURT OR DEFENDANT FOR INFORMATION ABOUT THIS PROPOSED SETTLEMENT.Top