- Does your employer make you purchase a uniform shirt?
- Does your employer pay you with a physical payroll check from a bank that is out of the state of California?
- Potential Employee Pension Plan Abuse “ERISA ” Violations
- Class Action Background
Does your employer make you purchase a uniform shirt?
You MAY be entitled to reimbursement.
Read the California Labor Code Section below:
- (a) An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.
- (b) All awards made by a court or by the Division of Labor Standards Enforcement for reimbursement of necessary expenditures under this section shall carry interest at the same rate as judgments in civil actions. Interest shall accrue from the date on which the employee incurred the necessary expenditure or loss.
- (c) For purposes of this section, the term “necessary expenditures or losses” shall include all reasonable costs, including, but not limited to, attorney’s fees incurred by the employee enforcing the rights granted by this section.
Does your employer pay you with a physical payroll check from a bank that is out of the state of California ?
Does this bank not have branches in California?
Do you have to pay a check cashing fee to cash your payroll check?
If you deposit the payroll check in your personal account, is there a placed on the check?
If the above applies to you, please feel free to contact us.
- (a) No person, or agent or officer thereof, shall issue in payment of wages due, or to become due, or as an advance on wages to be earned:
(1) Any order, check, draft, note, memorandum, or other acknowledgment of indebtedness, unless it is negotiable and payable in cash, on demand, without discount, at some established place of business in the state, the name and address of which must appear on the instrument, and at the time of its issuance and for a reasonable time thereafter, which must be at least 30 days, the maker or drawer has sufficient funds in, or credit, arrangement, or understanding with the drawee for its payment.
(2) Any scrip, coupon, cards, or other thing redeemable, in merchandise or purporting to be payable or redeemable otherwise than in money.
- (b) Where an instrument mentioned in subdivision (a) is protested or dishonored, the notice or memorandum of protest or dishonor is admissible as proof of presentation, nonpayment and protest and is presumptive evidence of knowledge of insufficiency of funds or credit with the drawee.
- (c) Notwithstanding paragraph (1) of subdivision (a), if the drawee is a bank, the bank’s address need not appear on the instrument and, in that case, the instrument shall be negotiable and payable in cash, on demand, without discount, at any place of business of the drawee chosen by the person entitled to enforce the instrument.
Potential Employee Pension Plan Abuse “ERISA ” Violations
Are or were you part of a 401(k), 403(b), defined benefit, deferral benefit, IRA, SEP IRA, or other employer-sponsored plan?
Was your plan underfunded?
Was your plan mismanaged?
Were there ConflictsOfInterest between employer/trustee/investment managers?
Were there InadequateInvestmentChoices?
Were the administrativeexpensesunreasonablyhigh?
Were there unreasonable TimeDelays in actually funding your plan?
Were you improperlyclassifiedasanINDEPENDENTCONTRACTOR, and therefore not entitled to participate in the plan?
Were there improper investment losses?
Were your INSTRUCTIONS NOT FOLLOWED?
Were there UNREASONABLE DELAYS in your ability to WITHDRAW MONEY, TRANSFER MONEY or CLOSETHE ACCOUNT?
Were there failures or problems associated with the ability to EXERCISE OPTIONS?
Did you put money into any DEFERRED COMPENSATION PLANS you were UNABLE TO ACCESS?
If you have experienced any of the above through your current or former place of employment, please call our office at 888-2-PAY-LAW
Q: What is a class action?
A: A class action is a civil lawsuit where one or more selected representatives, called “class representatives,” sue on behalf of a class of people. The judge will first have to decide whether the claims of the class representatives arise from facts or law common to the class members. This is called “commonality” in legal terms. Most class actions are called “plaintiff class actions,” because in a lawsuit the parties doing the suing are called “plaintiffs.” But in limited circumstances, a class action can be filed against one or more defendants representing a group of defendants, and would be called a “defendant class action.”
Class action suits can help people who have been harmed by another party, such as a product manufacturer or developer, a lending or other financial institution or an insurance company. An individual may have been injured or suffered some other damage, but one person’s damage alone may not be great enough to justify the expenses of a lawsuit. The wrongdoer in such circumstances may get away with the wrong because of the cost of bringing a lawsuit. But if enough people have also been injured, then the combined damages may be enough to justify bringing a lawsuit to hold the wrongdoer responsible for the harm caused.
In federal court, the procedures for “certifying” a class (making the lawsuit a class action) are governed by Rule 23 of the Federal Rules of Civil Procedure. For general information about federal courts and how they are structured, and other information on the federal court system and its procedures, see the Federal Judiciary Homepage.
Q: How do you know if you’ve got the makings of a class action lawsuit?
A: First, a significant number of people must be potential members of a class. This is called “numerosity” in legal terms. There must be so many potential plaintiffs that it is not practical that they each individually bring their claims. There is no magic number, as it is determined on a case-by-case basis. There must also be common facts or similar legal questions between the class members, called “commonality” in legal terms. The class representatives’ claims must also be typical of those who are members of the proposed class. It isn’t necessary that their claims be identical. This is called “typicality” in legal terms. Finally, the class representatives must be able to fairly and properly represent the class. The court must be convinced that the representatives will pursue the interests of the class and not just their own interests at the expense of the class members. This is known as the “adequacy” test.
Q: What types of class actions may be filed?
A: Most class actions are filed to recover money. Class actions may also be filed to resolve disputes over a “limited fund,” where the money available is inadequate to fully compensate all class members. Occasionally, what’s called “declaratory judgment” class actions are filed asking for a decision from a court as to the rights and obligations of the parties. Sometimes class representatives may be asking the court to order a person to do something or stop doing something. That’s called an “injunctive relief class action.” For example, a class action may be filed to request that the court order the police or authorities to stop doing something unconstitutional or to enforce environmental rights.
Q: Can I be bound by a settlement or judgment of a class action?
A: Yes. If the court decides the underlying legal proceedings were fair, all absent class members are generally bound by the judgment or settlement of a case. But if the lawsuit is primarily to recover money, absent class members are entitled to notice and an opportunity to “opt out” (exclude themselves) from the proceedings. If a person opts out, he is not bound by any judgment or settlement of the class action. If a person opts out, he may be free to bring a claim for damages individually. When a class action is for declaratory or injunctive relief, notice isn’t required to bind absent class members and the court may not allow a person to opt out.
Q: How do I join a class action?
A: Generally, before a court certifies a class action, it must conclude that there are too many class members for them all to be named as parties in the lawsuit. This is the “numerosity” requirement discussed above. Technically, class members do not “join” in the litigation, but decide to participate by not “opting out.” It is only in rare instances that a suit is filed as an “opt in” class action. In those rare instances, a claim form or request to join form may be necessary. Ordinarily, the notice issued to class members in the usual suit for money damages will tell the class members if they need to take any action to participate. In a suit for money damages, any class member who does not “opt out” may be bound by the results of the litigation if it proceeds as a class action. If a class member should determine, however, that he wants to participate in the suit as a named party, he may hire his own lawyer and seek to “intervene” (participate) in the lawsuit.
Q: If I have a claim, should I file my own lawsuit?
A: The answer depends on the nature of the suit and your own individual circumstances. Often, class actions seek recovery for a large group of people, but individual damages may be small. For instance, if a mortgage company is improperly charging interest, and as a result every class member paid $100 more than he or she should have been charged, the cost of litigation may make it impractical to file such a case individually. On the other hand, if you have substantial damages and a serious claim, you should talk to a lawyer about whether to file your own lawsuit.
Q: Who pays the lawyers in a class action lawsuit?
A: In a class action for money damages, lawyers who represent the class are generally paid out of the money that’s recovered – called a “common fund” – for the people they are representing. In class actions involving declaratory judgments or injunctive relief, lawyers may be paid by the people who hired them, or in some cases, by the people or companies they are suing.
Attorney’s fee awards are subject to court review and approval. Ordinarily, if an award is made in a common fund case, it will be awarded as a percentage of the total money available for the class. A benchmark award generally accepted by the courts is approximately 25 percent of the total, although the award may be adjusted higher or lower, depending on the specific facts of a case.
Q: What are the signs of an unfair settlement or improper representation?
A: There has been a great deal of criticism of class action litigation in the news in recent years. Sometimes the criticism is justified; often, it’s not. A good deal of the criticism focuses on the fees that lawyers receive. Many times, the most vocal opponents of class action litigation are insurers who are required to pay covered claims as a result of the litigation, or the wrongdoers involved in the underlying misconduct.
It’s true that lawyers who represent a class will often receive fees many times greater than the compensation received by any given class member. But the total money recovered on behalf of the class in a proper settlement is invariably many times the fee awarded to lawyers.
Without a means to sue wrongdoers for cheating people out of small sums, we would all be at the mercy of small time cheats. Generally, no one person cheated out of $100 can find a lawyer to represent him. But several thousand people cheated out of $100 each have a powerful collective wrong that attracts qualified legal representation to put a stop to the practice.
Despite the frequent unjustified criticism of lawyers handling class action litigation, there have been instances where courts have found representation of a class to be inadequate and proposed settlements unfair. Although the presence of one or more of the following circumstances does’t always mean a settlement is unfair, the following are examples of circumstances which may justify a closer look at a proposed settlement of class action litigation:
The proposed settlement fails to create a substantial return for the class in terms of collective benefit to the absent class members. For example, in a case alleging a defect in a particular product, the proposed settlement provides only that class members are to receive a nontransferable coupon good for a limited time on the purchase of a new product by the same manufacturer. It’s likely that if the class members purchased a defective product in the first place, they might not be interested in repeating the mistake again with the same manufacturer. And it could be argued that the settlement is of more value to the defendant as a marketing scheme than to the class members as compensation for damages. On the other hand, such a “coupon settlement” could be of substantial value if the coupon can be used on a product in great demand, offers substantial savings to the class, provides a reasonable period of time in which it may be used and is transferable.
A class action was filed as an action for money damages, but the settlement provides no monetary award for the class members. Further, the attorney’s fee is for several million dollars and is based on “nontangible” benefits the class will purportedly receive. For example, in a case involving a vehicle subject to rollovers, class counsel negotiates a settlement in which a class member receives only an inspection of his vehicle to determine if it has been modified since the date of manufacture, a warning sticker for the visor saying “watch out,” and a toll free number they can call for a free tow if their vehicle rolls over. At the end of the proposed settlement, the class members are still left with dangerous, unmodified vehicles and provided no compensation for the defect. Yet the class counsel contends the settlement is fair and worth millions in fees.
On the other hand, in some instances nontangible benefits can be substantial. For example, in a pollution case, a defendant might be sued for both money damages and injunctive relief in an effort to stop continued pollution. Under some circumstances, the injunctive relief could provide true substantial benefits to the class even in the absence of money damages. If the pollution is stopped, the quality of life for those in the area could very well be improved, potential illness and risk to children from the pollution eliminated and any further damages to the class from continuing pollution stopped. In such a situation, a class counsel might make a conscious and intelligent decision that it’s more important to the class to stop the pollution now through settlement than to continue it indefinitely by continuing to litigate. In such a situation, a substantial fee may be appropriate even if no direct compensation is paid to individual class members.
Any settlement where the release being demanded as a condition of the settlement is extremely broad and may cover claims that weren’t pursued in the lawsuit. For instance, a bank is improperly charging a “fax fee” when a person pays off a mortgage issued by the bank. Assume such a practice violates state loan charge disclosure statutes or the Truth in Lending Act and the $15 fee charged for a fax is improper.
Assume further that the same bank is also improperly calculating interest due on a loan closing date and is overcharging some customers several hundred dollars in interest at the time a loan is paid off. A lawyer finds out about and sues over the improper fax fee, but never discovers the bank is improperly charging interest. It is possible that under some circumstances a bank could even lie about the interest charges and preclude the class action attorney from discovering the lie by blocking procedures in the litigation. The bank agrees to settle the fax claim, but knowing it may soon be sued for the interest claim attempts to head off in advance any such new suit by insisting that the release in the fax claim case covers “every and all claims relating to loans, known or unknown” arising from any loan. If a demand by a defendant is made for a ridiculously overbroad release of claims, they may very well have something to hide that hasn’t yet been discovered.
The virtual nonexistence of work attorneys do that’s called “discovery,” which is research into the other party’s case, including looking at documents, taking depositions, etc.
In order for an attorney to be able to tell a court that a settlement is fair, reasonable and adequate, he or she must be familiar with the underlying facts of the case. If the attorneys have not done their homework, they may not have sufficient familiarity with the facts to adequately make recommendations to the class or to the court.
In class action litigation, there often is a committee of attorneys representing the class members. Although each and every attorney need not be familiar in depth with all underlying facts, that knowledge should be present among the group representing the class.
The failure of the class counsel to notify the class in either general or specific terms as to the amount of his proposed attorney’s fees. If an attorney earns a fee, he shouldn’t be concerned about disclosing the amount. If he will be asking for a percentage of a common fund, the class should be informed of the maximum fee that may be requested. Such a disclosure could be made either by disclosing the maximum percentage that may be sought, or the amount in dollars – or both. The failure to disclose the intended fee may occur when the fee would be considered excessive by many people.
In a settlement class, the amount of attorney’s fees to be requested appears on its face to be excessive, the fees were negotiated with the defendant, and the defendant agreed not to object to the fee request as part of the settlement. This type of arrangement is known as a “clear sailing” agreement.
Such clear sailing agreements create an appearance of class counsel putting his interest ahead of the class. On the other hand, a clear sailing agreement might not be improper if the fee is reasonable, the fact the defendant will not be objecting is disclosed, the class is given an opportunity to object to the fee, and the court provides oversight on ultimate approval of the amount awarded.
The presence of one or more of these factors doesn’t necessarily lead to the conclusion that a settlement is unfair or that the class has been poorly or inadequately represented. But if several of these elements are present in the same case, a much closer look may be necessary to protect your interests as a class action member.
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