United States Court of Federal Claims
Russell et al. v. United States, Class Action
Case No. 14-cv-1062 SGB
NOTICE OF PROPOSED CLASS ACTION
SETTLEMENT OF AAFES SHIFT DIFFERENTIAL LAWSUIT
A Federal court authorized this Notice. Read this Notice carefully. Your legal rights may be affected.
This Is To Notify You That You May Be Entitled To A Cash Payment From A Class Action Settlement.
If You Were An AAFES Employee At Any Time Between November 1, 2008 and April 22, 2016
And Were Eligible for Night Shift Differential You May Be Included Within The Class The Court Has Certified And If You Choose to Opt In And Be
Included in The Settlement, You May Be Entitled To Recover Money For Unpaid Night Shift Differential And/Or Lump Sum Accrued Leave Payments.
You May Be Entitled To Receive Money Under This Proposed Settlement.
You may have received a mailed notice with a preliminary estimate of what you may be entitled to receive under the settlement.
You may receive less than this amount depending on the total dollar amount of approved claims in the settlement and other factors, including any taxes that must be withheld.
If you lost your claim form or have questions about the estimated amount of your claim under this settlement, contact the Settlement
Administrator or Class Counsel.
What Is This Notice About?
This notice is to advise you that a proposed settlement agreement has been reached in a class
action lawsuit against the United States concerning the Army & Air Force Exchange Service ("AAFES").
The Court ordered this notice to be sent to you because
you have a right to know about the proposed settlement of this class action lawsuit—and about your
options—before the Court decides whether to grant final approval of the settlement.
What Is This Lawsuit About?
The lawsuit was brought by plaintiffs Andrew Russell and Ruth Gallego, who allege that
during the course of their employment with AAFES, they were repeatedly denied payment of the shift differential
despite being entitled to receive it. Specifically, plaintiffs allege that they worked or were scheduled
to work non-overtime shifts where the majority of shift hours were between 3:00 p.m. and midnight
(second shift) or between 11:00 p.m. and 8:00 a.m. (third shift), and that they were therefore entitled
to premium pay, also known as shift differential pay. Plaintiffs assert that because of an error in the
payroll system used by AAFES, employees often failed to receive 7.5 percent additional premium
pay for working the second shift and 10 percent additional premium pay for working the third shift.
Additionally, plaintiffs assert that payments to employees upon separation from AAFES for accrued
leave, or lump sum payments, were not accurately paid to employees as a result of the alleged failure
to accurately pay the shift differential.
The plaintiffs allege that AAFES violated the Prevailing Rate System Act, 5 U.S.C. § 5341 et
seq., the regulations implemented thereunder, including 5 CFR § 532.505, the Federal Wage System
Operating Manual, Subchapter S8, and the Exchange Operating Procedures 15-10, chapter 13-88.
Plaintiffs filed their complaint in the United States Court of Federal Claims (the Court), where they
sought to represent other present and former AAFES employees who were similarly situated, pursuant
to Rule 23 of the Rules of the United States Court of Federal Claims. The lawsuit was filed against the
United States of America (“defendant”).
For more information about the lawsuit and to obtain a copy of the complaint that was filed in
this case, click here.
Why Is This A Class Action?
In a class action, one or more people, called Class Representatives (in this case, Mr. Russell
and Ms. Gallego), sue on behalf of people who have similar claims. All of these people make up the
Class. A court then resolves the issues for the entire Class. Mr. Russell and Ms. Gallego sued on their
own behalf and on behalf of all others similarly situated for proper payment of shift differential and/or
related lump sum leave payments.
The Court decided that this case can proceed as a class action because it meets the requirements
of Rule 23 of the Rules of the United States Court of Federal Claims, having found that the Class is so
numerous that joinder of all members is impracticable, that there are questions of law and fact common
to the Class, that the claims of the Class Representatives are typical of the claims of the Class, that
the Class Representatives will fairly and adequately protect the interests of the Class, that common
questions of law or fact predominate over questions affecting individual members, and that a class
action is a superior method for fairly and efficiently adjudicating the case.
Why Is There A Settlement?
After plaintiffs filed their complaint, the defendant filed a motion to dismiss the lawsuit on
numerous grounds. After plaintiffs filed an amended complaint, the defendant answered the amended
complaint. The parties thereafter entered into an extensive negotiation process, culminating some
18 months later in the proposed settlement agreement that has been entered into and presented to the
Court. The Court has given its preliminary approval to the settlement, finding the settlement to be
fundamentally fair, adequate, and reasonable, subject to the Final Approval Hearing discussed below.
The Court has not determined the correctness of the ultimate positions of any of the parties in
this lawsuit. Rather, the parties have agreed to settle the lawsuit so as to avoid the uncertainties, the
expense, and the delay of further litigation. This settlement is not an admission by either party as to
the strength of the other’s position or of any weakness in its own position. The attorneys for the Class
have extensively investigated and researched the issues in the lawsuit and, together with the Class
Representatives, believe that the proposed settlement is fair, reasonable and adequate, and in the best
interests of the Class.
What Does The Proposed Settlement Provide?
Under the proposed settlement that has been preliminarily approved by the Court, a Qualified
Settlement Trust (the Settlement Fund) of $4,000,000 will be created. From the gross amount of the
Settlement Fund will be deducted the following amounts: (a) the costs of the Settlement Administrator,
who will provide all notices and process and resolve all claims, make all required tax withholdings and
filings with appropriate authorities, and issue all necessary W-2s; (b) the attorneys’ fees and expenses
of class counsel awarded by the Court; and (c) Court-approved incentive awards to Mr. Russell and
Ms. Gallego for their role in bringing this suit and helping to make this result available to the Class.
The amount remaining in the Settlement Fund after the deductions of the foregoing items shall
be known as the Net Settlement Fund. Potential settlement class members who wish to participate
in the settlement and receive a payment must opt in to the class action lawsuit and file claims with
the Settlement Administrator, RSM US LLP, by submitting a claim accompanied by a fully-executed
federal Form W-4 within a 120 day period ending May 30, 2017. All approved claims made by Class
Members in this case will be paid from the Net Settlement Fund.
Approved claimants will be paid 100% of the amount they were supposed to have received
during the Class Period for shift differential and/or lump sum leave pay that each claimant was entitled
to receive. In the event there is not enough money in the Net Settlement Fund to pay all approved
claims, claimants will be paid their pro rata share of the Net Settlement Fund. If there is any money
remaining in the Net Settlement Fund after payment of all approved claims and expenses, that money
shall be returned to AAFES. In accordance with Federal, State and local tax laws, the Settlement
Administrator will withhold required taxes from each claimant’s individual settlement payment.
As part of the settlement process, experts have spent months reviewing AAFES’ pay records
and have determined, in consultation with counsel for the defendant and Class Counsel, the amount
each Class Member was underpaid for shift differential and/or lump sum leave pay during the Class
Period (“damages”). Additionally, as a result of this litigation, AAFES has implemented changes to its
payment protocols that will ensure AAFES employees are now properly paid the shift differential and
any lump sum pay.
You may have received an estimate of what the full value of your claim would be if the amount in
the Net Settlement Fund is sufficient to pay all approved claims. This amount is set forth in the box on
the first page of the Claim Form that accompanies the Notice you may have received. The amount you are
actually paid if the settlement is given final approval by the Court could vary depending on the amount
of taxes withheld and the amount available in the Net Settlement Fund versus the total amount of approved claims.
You can obtain a full copy of the settlement agreement and other important documents in the
case by clicking here or by calling 1-800-222-2760.
How Do I Know If I Am Included In The Proposed Settlement?
The Court certified a class for settlement purposes only consisting of employees who worked
for AAFES at any time between November 1, 2008 and April 22, 2016 (the “Class Period”) who were
eligible for night shift differential and who:
(i) worked or were scheduled to work non-overtime shifts where the majority of such
shift hours occurred either between the hours of 3:00 p.m. and midnight or between
11:00 p.m. and 8:00 a.m., and who were not paid the shift differential to which they
were entitled; or
(ii) were eligible for accumulated and current accrued annual or vacation leave
payments upon separation from AAFES and who, upon separation, were not paid the
full amount of lump-sum payments to which they were entitled as a result of the failure
to receive the shift differential.
Excluded from the Settlement Class are all employees whose damages for shift differential and
lump sum payments are less than $10 in total. Those employees with damages of at least $10 who
choose to opt in to the settlement are the Settlement Class Members.
If you received a Notice and accompanying claim form via mail and/or email, then according to AAFES records
you are a part of the Settlement Class and may request to be included in the settlement as a Settlement
Class Member by completing and timely filing the enclosed Claim Form along with a completed Form
W-4 (a Federal employee withholding allowance certificate).
How Can I Receive Payment?
To participate in the settlement and receive payment, you must complete and submit a Claim
Form and Form W-4. There are three methods by which you can submit your Claim Form and W-4:
(1) online by clicking here; (2) by mailing your documents to AAFES
Shift Differential Settlement, c/o Settlement Administrator, P.O. Box 1327, Blue Bell, Pennsylvania
19422; or (3) by faxing your documents to 215-641-8680. YOUR CLAIM FORM AND W-4 MUST
BE POSTMARKED OR RECEIVED BY THE SETTLEMENT ADMINISTRATOR NO LATER THAN MAY 30, 2017.
When Will I Receive My Payment?
After the Court grants final approval of the settlement and after any appeals are resolved,
payments will be mailed to eligible Settlement Class Members who timely submitted approved
Claim Forms. Please understand that if the Court grants final approval to the Settlement after a
hearing on May 11, 2017, there may be appeals. It is always uncertain when any such appeals can
be resolved, and resolving them can take time. Please be patient. To check on the status of the
settlement, including the mailing of class member payments, please visit this settlement website.
The Attorneys and Class Representatives Who Represent Your Interests
The Court appointed the following attorneys to represent you and the Settlement Class:
John G. Jacobs
Bryan G. Kolton
Jacobs Kolton, Chtd.
55 West Monroe Street
Chicago, IL 60603
Together, these lawyers are called Class Counsel. You will not be charged for these lawyers; they
will be paid from the Settlement Fund. If you wish to be represented by a different lawyer in this case,
you may hire an attorney at your own expense who may file an appearance on your behalf in this lawsuit.
The Court also has appointed Mr. Russell and Ms. Gallego to serve as the Class
Representatives in this litigation.
How Will Class Counsel And The Class Representatives Be Compensated?
To date, Class Counsel have not received any payment for their work in investigating and
prosecuting this lawsuit on behalf of the Settlement Class, nor have counsel been reimbursed for
their out-of-pocket expenses. Class Counsel intend to ask that the Court award to Class Counsel:
(1) attorneys’ fees equal to 38 percent of the Settlement Fund to compensate for their efforts in
investigating the facts, litigating the case, negotiating the settlement, and implementing the settlement
on behalf of the Settlement Class and for their risk in undertaking this representation on a purely
contingent basis; and (2) reimbursement from the Settlement Fund of reasonable expenses incurred by
Class Counsel in connection with the litigation. Class Counsel also intend to ask the Court to permit
an incentive award of $5,000 each to Mr. Russell and Ms. Gallego to compensate for their time and
effort and for the risks incurred in serving as the Class Representatives in this litigation. The Court
may award less than the amounts requested.
What Are My Options?
|Your legal rights and options:
Opt In To The Class
Action Settlement By
Submitting A Claim
You may request to be included in the settlement (opt in), by completing the
enclosed Claim Form and supplying any requested documentation, including a
completed Form W-4. Your completed Claim Form must be postmarked or
received by the Settlement Administrator no later than May 30, 2017. There
are three methods by which you can submit your Claim Form and W-4: (1)
by filing online by clicking here; (2) by mailing
your documents to AAFES Shift Differential Settlement, c/o Settlement
Administrator, P.O. Box 1327, Blue Bell, Pennsylvania 19422; or (3) by faxing
your documents to 215-641-8680.
Filing your completed Claim Form by the deadline is the only way to receive a
payment under the settlement.
If you opt in to this class action, you cannot sue, continue to sue, or be part of any
other lawsuit against the United States about the legal issues in this case. You also
will be bound by all rulings that the Court makes with respect to this matter.
Comment On or
Object To The
If you request to be included in the settlement, you may, but are not required to,
express to the Court your views in support of, or in opposition to, the fairness,
reasonableness, and adequacy of the proposed settlement, Class Counsel’s request
for attorneys’ fees and expenses and/or the Class Representatives’ incentive awards,
or any other aspect of the proposed settlement.
You may object to the proposed settlement regardless of whether you are
represented by an attorney. Objecting means telling the Court that you dislike
something about the Settlement. You cannot ask the Court to order a larger
settlement—the Court can only approve or disapprove the settlement. If the Court
denies approval, no settlement payments will be sent out and the lawsuit will
continue. If you wish to object to the settlement, you must file with the Court a
signed, sworn statement of objection that: (a) identifies the case name and number
(Russell et al v. U.S., Case No. 14-cv-1062 SGB); (b) describes in detail the basis for
your objection, including any citations to legal authority, and provides all evidence
supporting your objection and
copies of any documents relied upon by you for such objection; (c) contains your
name, address, and telephone number, and, if represented by counsel, the name,
address, email address and phone number of counsel; (d) states whether you
filed a claim form and opted in to the settlement and provides evidence of your
membership in the Settlement Class; and (e) states whether you (or your counsel)
intend to appear at the Final Approval Hearing.
Any objection or notice of intention to appear at the Final Approval Hearing must
be filed with the Court and postmarked or received by all three of the following
recipients no later than March 31, 2017:
AAFES Shift Differential Settlement
c/o Settlement Administrator
P.O. Box 1327
Blue Bell, PA 19422
Bryan G. Kolton, Esq.
Jacobs Kolton, Chtd.
55 West Monroe Street
Chicago, IL 60603
Michael A. Rodriguez, Esq.
U.S. Department of Justice, Civil Division
P.O. Box 480
Ben Franklin Station
Washington, D.C. 20044
Attorney for United States
Any Class Member who does not make and serve written objections in the manner
provided above shall be deemed to have waived such objections and shall forever
be foreclosed from making any objections (by appeal or otherwise) to the proposed
Go To The Final
The Court has already given its preliminary approval to the proposed
settlement agreement and has directed that this Notice be provided to
potential settlement Class Members. The Court will hold a hearing at 3:00
p.m. on May 11, 2017, at the United States Court of Federal Claims, Howard
T. Markey National Courts Building, 717 Madison Place NW, Washington,
D.C. 20439, to decide whether to give final approval to the settlement, to
make an award of attorneys’ fees and expenses, to rule on Class Counsel’s
request for an incentive award for the Class Representatives, and to hear any
objections properly received by the Court.
Attendance at the Final Approval Hearing is not required. Class Counsel
is prepared to answer the Court’s questions on your behalf. If you or your
attorney still want to attend the Final Approval Hearing, you are welcome to
do so at your own expense. Attendance is not necessary or required, even if
you submitted an objection. Class members who submitted statements with
the Settlement Administrator also need not appear at the hearing for their
views to be considered.
The Final Approval Hearing may be changed to a different date without
further mailed notice to the Class, in which case the new time and date will
be listed on this settlement website.
If you do nothing, you will receive nothing from the settlement, but you
will not release any claims that you may have. If you do not make yourself
a member of this class, depending on applicable statutes of limitations, you
may or may not be able to bring your own lawsuit.
Where Do I Get More Information?
This Notice is only intended to provide a summary of the proposed settlement. You may obtain
a copy of the settlement agreement by
If you have any questions or want to get more information, you may contact the Settlement
Administrator at 1-800-222-2760 or access the Court docket in this case through the Court’s Public Access to Court Electronic Records
(PACER) system at http://www.pacer.gov. You may also contact Class Counsel at 888-828-8493.
Please do not contact the Court, the Court Clerk’s Office or attorneys for the United States.
Date: January 30, 2017
By Order of the United States Court of Federal Claims