CHRISTOPHER CLIPPARD v. THE FISHEL COMPANY Settlement

You were sent notice by mail of this proposed settlement because you are a member of the Settlement Class.  Participation in the Settlement Class is based upon Defendant’s records. The Notice of Settlement you received by mail directed you to the Settlement Administrator’s website, which provides additional information regarding this settlement, including this more detailed Notice of Proposed Class Action Settlement and Hearing.  As a potential member of the Settlement Class, you have a right to know about the proposed settlement of this case as a class action and about your options to participate as a Settlement Class Member, your ability to object to the settlement terms as a class member, and your right to opt out of the settlement before the Court decides whether to grant final approval of the settlement.  If the Court approves the settlement, and after all objections or appeals relating to that settlement are resolved, the benefits provided for by the settlement will be available to all Settlement Class Members who have not elected to opt out.

This Notice explains the lawsuit, the proposed settlement, your legal rights, the settlement benefits and who will be eligible to receive a benefit from the settlement fund, and the basis upon which benefits will be paid.  A copy of the Settlement Agreement is available to Settlement Class Members on this website.

The original complaint in this lawsuit was filed on December 7, 2023.   Plaintiff’s Complaint alleged that Defendant violated the Worker Adjustment and Retraining Notification Act (“WARN Act”) by terminating the Named Plaintiff with no advance notice in violation of the WARN Act.  Defendant has, at all relevant times, denied Plaintiff’s allegations and affirmatively asserted its compliance with the law.   In addition, Defendant has further raised various affirmative defenses in this Action.

Soon after the lawsuit was filed, Defendant asked if Plaintiff would agree to attend early mediation with a private mediator appointed by the Court. Following the completion of: (i) informal discovery during which documents were exchanged evidencing the number of employees laid off or impact by the closing; (ii) exchanged positions on a potentially dispositive issue regarding threshold numbers of employees laid off or impacted by the closing; (iii) and an arms-length mediation before third party mediator, Scott Callen, during which both sides were represented by experience class counsel, the Parties reached a resolution to this action and the Parties now enter into this Class Action Settlement Agreement and Release, which memorializes in full the terms of the Parties’ amicable resolution of this case.

Although the Court has authorized this Notice of Proposed Class Action Settlement, the Court has not determined or ruled upon the merits of the claims or defenses asserted by either side in the lawsuit. The Court has not found Defendant violated the law in any way.  The Court has not found that the Plaintiff would prevail in this case.  The Court has not made any determination that Plaintiff will recover any damages in this litigation.

Class actions are lawsuits in which the claims and rights of many people are decided in a single proceeding.  In a class action, as here, the Plaintiff (“Class Representative”) seeks to assert a WARN Act claim on behalf of himself and all members of a putative class who were part of the mass layoff at Fishel in 2023 and who meet the class definition’s parameters.  In a class action, individuals with similar claims are generally treated alike.  The Court will review and approve of the terms of the proposed Settlement to assure that all members of the settlement class are adequately and fairly represented.  Settlement Class Members are not individually responsible for the costs and fees of Class Counsel, which the Court must approve and which will be paid from the Settlement Fund.

The Court has not decided the merits of this case in favor of the Class Representative or in favor of Defendant.  Instead, counsel for the Settlement Class investigated the facts and applicable law regarding the Class Representative’s claims and Defendant’s defenses.  The parties engaged in lengthy and arm’s-length negotiations to reach this settlement.  The Class Representative and Counsel for the Settlement Class believe that the proposed settlement is fair, reasonable, and adequate, and in the best interests of the Settlement Class Members.

Both sides agree that, by settling, Defendant is not admitting any liability or that Defendant did anything wrong.  Both sides want to avoid the uncertainties and expense of further litigation by agreeing to this Settlement.

You are included in the settlement if you fit the definition set forth in Paragraph 1.  If you received a notice of settlement in the mail, then records indicate you are a member of the Settlement Class.  If you are not certain as to whether you are or should be a member of the Settlement Class, you may contact the Settlement Administrator to find out.  In all cases, the question of settlement class membership will be determined based on the records of Defendant’s COBRA administrator.

If the Court approves the settlement, you will receive a payment by check.  The Settlement Fund will be divided equally on a pro rata basis among all Settlement Class Members who do not opt out of the settlement.  The gross amount recoverable to each Settlement Class Member (assuming all potential members participate) will be approximately $2,238.80.  However, certain deductions will be made from the Settlement Fund, as approved by the Court, for the costs of settlement administration (estimated at $4,972.80).  Plaintiff’s counsel will ask for attorneys’ fees and costs in the amount of $49,500, plus litigation costs totaling $551.00, which will be paid from the Settlement Fund.  Class Members will each receive payment of approximately $1,417.55 after the above deductions are made.

If any funds remain in the settlement account after all checks have been distributed to Settlement Class Members and the 60-day period for cashing the settlement checks has expired, and after attorneys’ fees and litigation costs have been deducted, all administrative costs have been paid, the remaining unclaimed funds will constitute a “cy pres” fund and will be paid to a non-profit beneficiary upon the Court’s approval. The parties have proposed to award the cy pres fund to Bay Area Legal Services, a non-profit corporation.

Payments to Class members from the Gross Settlement Fund shall be made net of all applicable employment taxes as determined to be due by the Settlement Administrator, including, without limitation, FICA/Medicare tax and federal, state and local income and unemployment tax withholding (the “Tax and Withholding Amounts”). Payments of Class Counsel’s Fees and Class Counsel’s Expenses shall be made to Class Counsel by the Settlement Administrator without withholding and reported to the IRS and the payee under the payee’s name and taxpayer identification number, which such payee shall provide for this purpose, on a 1099 Form. The payment of administration fees and costs to the Settlement Administrator shall be made without withholding and reported to the IRS and the payee under the payee’s name and social security number on a 1099 Form. The Settlement Administrator will issue W-2 forms and 1099 forms, as applicable. Class members shall be informed in the Notice that, after the payments contemplated under the Settlement have been made and issued, each Class member is responsible for any resulting tax obligations.

To receive your settlement payment, you do not have to do anything. Your interest in this matter will be represented by the Plaintiff as Class Representative and by Class Counsel as counsel for the Settlement Class. As a Settlement Class Member, you will be bound by the terms of the Settlement Agreement and any judgment arising from the settlement.  If the Court approves the settlement at or after the Final Approval Hearing, you will automatically receive a settlement check for your share of the funds remaining in the Settlement Fund after deduction for Court-approved awards and expenses.

On the Effective Date, and in consideration of the benefits provided by this Agreement, the sufficiency of which has been determined by the Court and is hereby acknowledged by the Parties, all Settlement Class Members and each of the foregoing’s attorneys, agents, spouses, parents, children, beneficiaries, heirs, assigns, and dependents who have not opted out of the Settlement Class shall fully and forever release, waive, acquit, and discharge Defendant and each of the Released Parties from any and all claims arising out of the facts alleged in the Complaint filed in the Action, including but not limited to any and all claims that are alleged or could have been alleged in the Lawsuit, relating to the WARN Act  claims asserted in this litigation, or the cessation of employment that were or could have been asserted in this Action, including but not limited to loss of wages and benefits or loss of earning capacity (together, the “Released Claims”), whether or not Named Plaintiff and such Settlement Class Members have received a monetary benefit from the Settlement, whether or not such Class Members have actually received the Settlement Notice, whether or not such Class Members have filed an objection to the Settlement or to any application by Class Counsel for an award of attorneys’ fees and costs, and whether or not the objections or claims for distribution of such Class Members have been approved or allowed.  This is a limited and narrow release that applies to the class members’ rights under the WARN Act and any state law equivalent.  Excluding the WARN Act and its state law equivalent, any claims Class members’ have against Defendant under federal and state law employment laws remain intact.

No.  You may choose to be excluded from the Settlement and you will not be bound by the Settlement Agreement or any judgment or other final disposition of the lawsuit.  You will retain any claims you may have against Defendant, and Defendant will retain any defenses it has to your claims.  To request exclusion, you must state in writing your desire to opt out and to be excluded from the Settlement Class.  Your request to opt out which will exclude you from the Settlement must be sent by first class mail, postmarked on or before April 18, 2025.  You must send your written opt out notice to:

Clippard v. The Fishel Company
c/o Settlement Administrator
P.O. Box 23698
Jacksonville, FL 32241
clippardvfishelWARNSettlement.com

If your written opt out request is not postmarked on or before April 18, 2025, your request for exclusion will be invalid, and you will be bound by the terms of the settlement approved by the Court, including without limitation, the terms of the Settlement Agreement and the judgment ultimately rendered in the case, and you will be barred from bringing any claims against Defendant which arise out of or relate in any way to the claims in the case as specified in the Release referenced above.

If I don’t exclude myself, can I sue Defendant for the same thing later?

No.  If you do not opt out of the settlement, you will give up any right to sue Defendant for the claims that this settlement resolves under the WARN Act or any state law equivalent. The settlement binds a class member unless the class member requests exclusion from the class.  

If I exclude myself, will I receive any benefits from this settlement?

No.  If you opt out and thereby exclude yourself, you are not part of the settlement and will get no money from it.

The Court has appointed Christopher Clippard as the Class Representative.  The Court has appointed Luis A. Cabassa, Brandon J. Hill, and Amanda Heystek of Wenzel Fenton Cabassa, P.A., as Counsel for the Settlement Class.  Class Counsel’s contact information is as follows:

Luis A. Cabassa, Esq.
Brandon J. Hill, Esq.
Amanda E. Heystek, Esq.
WENZEL FENTON CABASSA, P.A.
1110 North Florida Ave., Suite 300
Tampa, FL 33602
(813) 224-0431
[email protected]
[email protected]
[email protected]

Counsel for the Settlement Class represent the interests of all of the Settlement Class Members.  You may hire your own attorney to advise you regarding this matter and the proposed settlement if you so choose, but you are not required to do so and if you hire your own attorney, you will be responsible for paying that attorney’s fees and costs.

Class Counsel will apply to the Court for an award of attorneys’ fees, in an amount not to exceed $49,500, plus litigation costs totaling $551.  The Court may award less at its discretion.  Attorneys’ fees and litigation costs will be paid from the Settlement Fund.

You may object to any aspect of the proposed settlement by filing and serving a written objection. Your written objection must include: (1) your name, address, telephone number, email address and signature; (2) a detailed statement of the specific factual and legal basis for the objection(s) being asserted; (3) a statement of whether your objection pertains to just your individual settlement payment, or whether you are seeking to make a broader objection relating to some or all of the Settlement Class; (4) a notice of your intent to appear at the Final Approval Hearing if you intend to appear; (5) a detailed description of any and all evidence, including copies of any exhibits, which you may offer at the Final Approval  Hearing, and (6) the name and number of this case (as set forth on the first page of this notice).

You must file any objection with the Clerk of the Court at the address below no later than April 18, 2025:

United States District Court
Middle District of Florida
U.S. Federal Building and Courthouse
801 North Florida Avenue, Tampa, FL 33602

Any member of the Settlement Class who does not file and serve an objection in the time and manner described above will not be permitted to raise that objection later.

Yes.  By objecting, you are telling the Court that you don’t like something about the Settlement but you are agreeing to be bound by the Settlement as approved by the Court.  You may object only if you stay in the Settlement Class.  If you elect to opt out of the Settlement Class, you are telling the Court that you do not want to be part of the Settlement.  If you opt out and thereby exclude yourself from the settlement, you will have no basis to object because the lawsuit and settlement no longer affect you or any potential claims you may have.

There will be a Final Approval Hearing to consider the fairness, reasonableness, and adequacy of the proposed settlement on August 4, 2025, at 10:00 a.m. at the United States District Court, Middle District of Florida, U.S. Federal Building and Courthouse, 801 North Florida Avenue, Tampa, Florida 33602, Courtroom 15A.  At the Court’s discretion, the hearing may be postponed to a later date so you should visit this website for updates prior to the hearing date set forth above.  The purpose of the hearing is to determine the fairness, reasonableness, and adequacy of the terms of settlement; whether the Settlement Class is adequately represented by the Class Representative and Class Counsel; and whether an order and final judgment should be entered approving the proposed settlement.  The Court also will consider Settlement Class Counsel’s application for an award of attorneys’ fees and expenses.

You will be represented at the Final Approval Hearing by Class Counsel, unless you choose to enter an appearance in person or through your own attorney.  The appearance of your own attorney is not necessary to participate in the Final Approval Hearing.  Again, should you choose to engage your own attorney, it will be at your own expense.

No.  Class Counsel will represent the Settlement Class Members at the Final Approval Hearing, but you are welcome to attend the hearing at your own expense.  If you file an objection, you do not have to come to Court to talk about it.  As long as you filed and mailed your written objection on time, the Court will consider it.  You may also pay your own attorney to attend, if you wish.

You may ask the Court for permission to speak at the Final Approval Hearing.

For more details regarding the lawsuit or the settlement, you may refer to the papers filed in this case during regular business hours at the Clerk of the Court’s office, United States District Court, Middle District of Florida, U.S. Federal Building and Courthouse, 801 North Florida Avenue, Tampa, Florida 33602, Clerk’s office, File:  Clippard v. The Fishel Company, pending as Case No.: 8:23-cv-2798-SDM-NHA

You may also access papers filed in this case on-line through the Public Access to Court Electronic Records (“PACER”) service at www.pacer.gov; however, you may need to create an account and certain fees may apply.   You may also obtain a copy of the full Settlement Agreement and certain papers filed in this case by sending a written request to the Settlement Administrator, at the address above.  You may also access the full Settlement Agreement and certain pleadings filed in this case on this website.

You may contact the Settlement Administrator or Class Counsel using the information below:  

Settlement Administrator: Clippard v. The Fishel Company c/o Settlement Administrator, P.O. Box 23698, Jacksonville, FL 32241, clippardvfishelWARNSettlement.com.  

Settlement Class Counsel: Luis A. Cabassa, Brandon J. Hill, and Amanda Heystek of Wenzel Fenton Cabassa, P.A., 1110 N. Florida Ave., Suite 300, Tampa, Florida 33602, (813) 224-0431.