Case 1:15-cv-10603-PBS Document 252 Filed 07/20/20 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
___________________________________
)
DOMINIC OLIVEIRA,
)
on his own behalf and on behalf of
)
all others similarly situated,
)
)
Plaintiffs,
)
Civil Action No. 1:15-cv-10603-PBS
v.
)
)
NEW PRIME INC.,
)
)
Defendant.
)
___________________________________ )
PLAINTIFFS’ ASSENTED-TO MOTION FOR
PRELIMINARY SETTLEMENT APPROVAL
This case has been brought on behalf of truck drivers for Defendant New Prime,
Inc. (“Prime”). Plaintiff Dominic Oliveira alleges that Prime has failed to compensate its
drivers properly for classroom orientation and for driving (both when classified as
employees and when classified as independent contractors) and that Prime’s pay
practices violate the Fair Labor Standards Act (“FLSA”) and, for classroom orientation
occurring in Missouri, the Missouri minimum wage laws and common law. After more
than five years of litigation, including trips to the United States Court of Appeals for the
First Circuit and the United States Supreme Court relating to the applicability of
Prime’s arbitration agreement to drivers classified as independent contractors, extensive
discovery, full briefing and argument on class and collective certification and
Defendant’s motion to compel arbitration under Missouri law, and months of arm’s
length negotiations with a mediator, the parties have reached a proposed settlement.
Specifically, the parties propose to resolve this case, as well as the related case Haworth

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et al. v. New Prime, Inc., W.D. Mo. Civil Action No. 6:19-cv-03025-RK, now pending in
the United States District Court for the Western District of Missouri, on a class and
collective action basis pursuant to Federal Rule of Civil Procedure 23(e) and 29 U.S.C. §
216(b), on behalf of the following class and collective:
All individuals who have attended training to become truck drivers for
Prime and/or have driven for Prime either as employee drivers or as
independent contractor drivers who have leased their trucks through
Prime at any time from October 2, 2012, to May 8, 2020, and all individuals
who have otherwise attended training in Missouri to become truck drivers
for Prime at any time from March 4, 2010, to May 8, 2020, except two
individuals who served as named plaintiffs in another class settlement
against New Prime, Inc., in the case of Montgomery v. New Prime, Inc.,
C.D. Cal. Civil Action No. 8:17-cv-00321, and signed full releases as part of
that settlement.
The parties have agreed to settle this matter on behalf of the proposed class/collective
for up to $28,000,000, as well as significant non-monetary relief, as described in further
detail in Section I.A, infra. A copy of the parties’ Settlement Agreement is attached as
Exhibit 1.
This proposed settlement is a fair, reasonable, and adequate result for the Class,
as discussed in more detail below. In addition to affording each settlement class
member significant monetary and non-monetary recovery for the claims in this case, it
will avoid the risks, uncertainties, and delays inherent in further litigation.
Accordingly, Plaintiffs respectfully ask that the Court:
1.

Preliminarily certify the proposed class/collective for settlement purposes;

2.

Approve the notice procedure and authorize Plaintiffs to issue notice and

claim forms to the settlement class members in the forms attached as Exhibit 2-A
(electronic) and Exhibit 2-B (paper);

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3.

Approve the distribution formula and claim procedure set forth in the

parties’ Settlement Agreement and this motion;
4.

Order that, once the Haworth court has preliminarily approved the

settlement on behalf of the B/C seat class, this Court shall preside over the
consolidation of the two cases for purposes of final settlement approval; and
5.

Schedule a final fairness and approval hearing for a date in approximately

October 2020, at which time Plaintiffs will report to the Court the results of the notice
process and explain why this settlement should be given final approval and the
settlement fund distributed.
A proposed preliminary settlement approval order is attached as Exhibit 3.
BACKGROUND
Plaintiffs filed this lawsuit on March 4, 2015, alleging that Prime has failed to
compensate its truck drivers as required by the FLSA and, as to classroom orientation in
Missouri, as required by the Missouri minimum wage laws and common law. Prime
moved to compel arbitration of Plaintiff Oliveira’s claims. In October 2015, this Court
denied Prime’s motion to compel arbitration without prejudice and ordered the parties
to conduct factual discovery on the preliminary question of Plaintiff’s status as an
employee or an independent contractor (for purposes of determining whether the
Federal Arbitration Act’s exemption for “contracts of employment” of workers in
interstate commerce, 9 U.S.C. § 1, applied). Prime immediately filed a Notice of Appeal,
pursuant to the FAA’s provision allowing interlocutory appeal of orders denying
motions to compel arbitration, 9 U.S.C. § 16. This case was stayed pending appeal.

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The First Circuit issued a decision in Plaintiff’s favor on May 12, 2017, affirming
this Court’s decision and holding that Prime’s arbitration agreement was not covered
by the FAA. 857 F.3d 7 (1st Cir. 2017). Prime then sought certiorari before the United
States Supreme Court. While Prime’s petition for certiorari was pending, the parties
engaged in some discovery. The Supreme Court granted Prime’s petition on September
6, 2017. This matter was then stayed pending the Supreme Court’s decision. The
Supreme Court issued a decision affirming the First Circuit on January 15, 2019.
Once the case was remanded from the Supreme Court, the parties undertook
extensive discovery. Prime produced approximately 50,000 pages of written discovery.
Plaintiffs conducted a Rule 30(b)(6) deposition, two other depositions of Prime
managerial employees, and a site inspection of Prime’s corporate headquarters in
Springfield, Missouri. Prime conducted the deposition of named plaintiff Dominic
Oliveira. Plaintiff Oliveira and the other opt-in Plaintiffs also responded to written
discovery requests and produced documents in discovery.
The parties also engaged in substantive motion practice after remand from the
Supreme Court. Prime moved to compel arbitration of the claims of individuals who
had filed opt-in consent forms which was fully briefed and argued and which motion
the Court denied on December 9, 2019. Plaintiffs filed a motion for class and collective
certification, for which opposition and reply briefs were also filed, and the Court heard
oral argument on that motion on December 18, 2019. There was also discovery motion
practice, which was referred to Magistrate Judge Donald L. Cabell and as to which the
parties negotiated a resolution.

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On January 22, 2019, Rocky Haworth filed an action styled Haworth et al. v. New
Prime, Inc., W.D. Mo. Civil Action No. 6:19-cv-03025-RK, in the United States District
Court for the Western District of Missouri, on behalf of himself and similarly situated
individuals who drove for Prime as B seat and C seat drivers and alleged that Prime
had failed to pay those drivers at least minimum wage for all hours worked. The case
included counts under the FLSA and the Missouri minimum wage laws and common
law.
The Haworth case was heavily litigated, including written discovery and
depositions and the production of millions of lines of electronic data pertaining to the
Class members. Plaintiffs filed a motion for conditional certification under the FLSA
which was fully briefed. Prime filed a motion to stay the case because the Oliveira case
was pending. At that point, the undersigned counsel joined as counsel in Haworth.
The Haworth court heard argument on Plaintiffs’ motion for conditional certification
and Prime’s motion to stay proceedings and ultimately granted Plaintiffs’ motion for
conditional certification and denied Prime’s request for a stay on March 23, 2020. See
Haworth v. New Prime, Inc., __ F. Supp. 3d__, 2020 WL 1430478 (W.D. Mo. Mar. 23,
2020). After that, the parties engaged in motion practice regarding the method of
sending notice to potential opt-in plaintiffs. Pursuant to the parties’ settlement
agreement, the parties notified the Haworth court of a proposed settlement. Pending
deadlines in Haworth have been stayed, and a preliminary settlement approval hearing
(at which time Plaintiffs will request that Haworth be transferred to this Court and

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consolidated with this case for final settlement approval purposes) is to be scheduled in
early August 2020.
While these cases were being litigated, the parties also were engaging in ongoing
settlement negotiations. The parties engaged in a full-day mediation with mediator D.
Charles Stohler on November 14, 2020. Prior to that mediation, Prime turned over
extensive data from which Plaintiffs were able to conduct calculations of potential
damages. The parties also engaged in data production for settlement purposes and a
full-day mediation in the Haworth matter. The matters did not settle at mediation, but
Mr. Stohler continued to conduct settlement negotiations over the course of several
months, including exchange of data, damages calculations, etc. Finally, with Mr.
Stohler’s assistance, the parties have reached an agreement to settle this case pursuant
to the terms set forth herein. The proposed settlement includes resolution of both this
matter and the Haworth matter and consolidation of both cases after preliminary
approval before this Court for final settlement approval.1
BACKGROUND
I.

THE PROPOSED SETTLEMENT TERMS, PLAN FOR NOTICE, AND
DISTRIBUTION OF THE SETTLEMENT FUND.
A.

Settlement terms and proposed distribution of settlement funds.

The total settlement fund is up to $28,000,000, of which $14,000,000 is nonreversionary, meaning it will all be distributed, and $14,000,000 is to be distributed only

Pursuant to the terms of the Settlement Agreement, if the settlement is finally approved, this
Court shall dismiss the consolidated actions with prejudice as part of final settlement approval. If the
settlement is not finally approved, this Court shall transfer Haworth back to the United States District
Court for the Western District of Missouri for further proceedings.
1

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to the extent that it is claimed. Per the Settlement terms the following allocation is to be
made among the various claims in the case:
•

Classroom orientation fund: $7,000,0000 in non-reversionary funds to resolve
the claims relating to unpaid classroom orientation;

•

B/C seat driving fund: $3,500,000 in non-reversionary funds and $5,000,000 in
claims-made funds to resolve the claims relating to B seat or C seat driving;

•

A seat driving fund: $3,500,000 in non-reversionary funds and $5,000,000 in
claims-made funds to resolve the claims relating to employee A seat (post
final/upgrade orientation) driving; and

•

Independent contractor driving fund: $4,000,000 in claims-made funds to
resolve the claims relating to independent contractor driving (i.e., driving while
classified as an independent contractor).
Additionally, per the terms of the Settlement Agreement: up to 33% of the total

settlement fund as attorneys’ fees to Plaintiffs’ counsel (up to $9,240,000 total); incentive
payments of up to $50,000 for named plaintiff Dominic Oliveira and up to $25,000 for
Rocky Haworth, the named plaintiff in the Haworth case, to be drawn equally ($25,000
each) from the classroom orientation fund, the non-reversionary portion of the B/C seat
driving fund, and the non-reversionary portion of the A seat driving fund; reasonable
litigation costs, including costs of settlement administration, of up to $225,000, to be
drawn half (up to $112,500) from the classroom orientation fund, 25% (up to $56,250)
from the non-reversionary portion of the B/C seat driving fund, and 25% (up to
$56,250) from the non-reversionary portion of the A seat driving fund; and a fund of up

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to $200,000 to resolve disputes and pay reasonable late claims to be drawn 25% (up to
$50,000) from the claims-made portion of the B/C seat driving fund, 25% (up to $50,000)
from the non-reversionary portion of the A seat driving fund, and 50% (up to $100,000)
from the independent contractor driving fund. If the Court were to reduce any
amounts proposed for attorneys’ fees, incentive payments, litigation costs, or the
dispute fund, those amounts would be distributed to class members to the extent that
they come from non-reversionary funds and would revert to Defendant to the extent
that they come from claims-made funds.
The amounts above are to be distributed to class/collective members as follows:
Minimum payments: Minimum payments of $100 each would be distributed all
class/collective members, regardless of whether or not they submit Consent to Join
Forms. These amounts will be paid out from the non-reversionary funds in proportion
to the individual class/collective member’s entitlement to receive funds from each of
the non-reversionary funds.
Orientation fund: Individuals’ shares from the orientation fund shall be distributed
proportionate to their attendance at orientation, except that different orientations shall
be assigned different weights or shares, specifically 2 shares for attending D seat
orientation since March 2012, and 1 share for D seat orientation attended in Missouri
before March 2012, 1 share for individuals who have worked as A seat drivers or
independent contractor drivers (and who therefore attended a classroom orientation in
connection therewith), and 1.25 shares for individuals who have worked as both A seat
drivers and independent contractor drivers. Additionally, there shall be a 1.5 multiplier

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for each D seat orientation attended in Missouri since March 2012. The shares are in
recognition of the differing damages available for each orientation (because of varying
lengths of orientation), and the multipliers are in recognition of the higher Missouri
minimum wage and the fact that the pre-March 2012 claims are based on common law
theories only, for which the potential damages are lower. All amounts from the
orientation fund shall be distributed to claiming class members in proportion to their
relative shares from the fund.
B and C seat driving funds: Individuals’ shares from the B and C seat driving funds
shall be distributed proportional to each individual’s total number of weeks worked as
a B and/or C seat driver multiplied by the number of miles driven as a B and/or C seat
driver and divided by gross earnings while employed as a B and/or C seat driver. This
formula takes into account length of employment as a B and/or C seat driver, miles
driven/hours worked, and wages earned. All amounts from the non-reversionary
portion of the B and C seat driving fund shall be distributed to claiming class members
in proportion to their relative shares from the fund. Amounts from claims-made
portion of the B and C seat driving fund shall be distributed to the extent that they are
claimed.
A seat driving funds: Individuals’ shares from the A seat driving funds shall be
distributed proportional to each individual’s total number of weeks worked as an A
seat employee driver multiplied by the number of miles driven as an A seat driver and
divided by gross earnings while employed as an A seat driver. This formula takes into
account length of employment as an A seat driver, miles driven/hours worked, and

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wages earned. All amounts from the non-reversionary portion of the A seat driving
fund shall be distributed to claiming class members in proportion to their relative
shares from the fund. Amounts from the claims-made portion of the A seat driving
fund shall be distributed to the extent that they are claimed.
Independent contractor driving fund: Individuals’ shares from the independent
contractor driving fund shall be distributed proportional to each individual’s total
number of weeks worked as an independent contractor driver multiplied by the
number of miles driven as an independent contractor driver and divided by gross
earnings minus 50% of deductions taken while employed as an independent contractor
driver. This formula takes into account length of employment as an independent
contractor driver, miles driven/hours worked, wages earned, and allegedly unlawful
deductions taken from pay. Amounts from the independent contractor driving fund
shall be distributed to the extent that they are claimed.
Individuals who participated as class members in the class settlement in
Montgomery v. New Prime, Inc., C.D. Cal. Civil Action No. 8:17-cv-00321 shall be
entitled to receive 50% of what would be their total settlement share in this case if they
had not participated in that settlement; accordingly, their resulting numerators and/or
settlement shares will be decreased by 50%. Any amounts not distributed to
Montgomery plaintiffs and/or class members from this settlement shall be
proportionally redistributed to other eligible class members.
Claiming class/collective members will be entitled to receive amounts from all
funds that apply to them and shall also receive the $100 minimum payment.

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For more explanation of the formulas for calculating individuals’ shares from
each fund, see Settlement Agreement (Exhibit 1), Section C.
Plaintiffs’ proposed allocation formula is fair, reasonable, and adequate in that it
takes into account each individual’s potential damages from the case and allocates the
settlement monies accordingly. Courts routinely hold that such formulas are fair,
reasonable, and adequate. Indeed, a distribution formula that reimburses class
members based on the type and extent of their injuries is presumptively reasonable.
See, e.g., Sullivan v. DB Investments, Inc., 667 F.3d 273, 328 (3d Cir. 2011) (“Courts
generally consider plans of allocation that reimburse class members based on the type
and extent of their injuries to be reasonable”) (citations omitted); Walsh v. Popular, Inc.,
839 F. Supp. 2d 476, 482 (D.P.R. 2012) (approving methodology for calculating shares
from class settlement based on “each class member’s losses relative to those of
the class as a whole”); Hochstadt v. Bos. Sci. Corp., 708 F. Supp. 2d 95, 110 (D. Mass.
2010) (holding that plan of allocation was reasonable because it was based on class
members’ losses); In re Omnivision Technologies, Inc., 559 F. Supp. 2d 1036, 1045 (N.D.
Cal. 2008) (“It is reasonable to allocate the settlement funds to class members based on
the extent of their injuries”); In re Citric Acid Antitrust Litigation, 145 F. Supp. 2d 1152,
1154 (N.D. Cal. 2001) (allocation plan that “reimburses class members based on the type
and extent of their injuries is generally reasonable”).
Prime shall deposit $21,000,000 into a Qualified Settlement Fund established by
the Settlement Administrator2 within sixty days after the Court grants preliminary

The parties have agreed to use JND Class Action Administration as the Settlement Administrator
in this case.
2

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settlement approval. Prime shall deposit any remaining amounts owed within thirty
days after the close of the claim period. Settlement payments shall be made by check
within thirty days after final approval of the settlement (including exhaustion of
appeals, if any). Individuals shall have 180 days to deposit or cash checks from the
settlement. After the expiration of the checks, the Settlement Administrator shall
deliver any uncashed or uncollected but claimed funds to the appropriate state
Unclaimed Property Division. Reversionary funds not allocated to claiming Class
Members shall be returned to Defendant.
In addition to these monetary amounts, members of the class/collective are
receiving significant non-monetary relief. Specifically, Prime has agreed to a release of
monies that it asserts that employee drivers owe to Prime and has agreed not to seek
those monies from the drivers in post-employment collection efforts (including both
internal collection efforts, wage deductions, and collection efforts by third-party
collection companies). Prime has agreed to discontinue these collections as to all
monies that Prime asserts are owed to it by employee drivers in the class/collective,
regardless of whether or not they submit claim forms to participate in the settlement.
Prime has also agreed to a release of monies that it asserts that independent
contractor drivers owe to Prime and has agreed not to seek those monies from the
drivers in post-employment collection efforts (including both internal collection efforts,
wage deductions, and collection efforts by third-party collection companies), with two
conditions. First, this release only applies to independent contractor drivers who
submit claim forms to participate in the settlement. Second, the release only applies as

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to independent contractor drivers who have not destroyed, damaged, or stolen Prime’s
property. The parties have agreed to an extensive process for determining whether or
not Prime claims that a driver has destroyed, damaged, or stolen Prime’s property,
including an opportunity to cure and an opportunity for the driver to challenge Prime’s
assertion, which challenge shall be decided by the Settlement Administrator in the first
instance and ultimately, if the challenge is not capable of resolution by the Settlement
Administrator, by binding arbitration before D. Charles Stohler, whose fees for these
services shall be paid out of the dispute fund. If a dispute is resolved in whole or in
part in favor of the driver, then Prime shall release entitlement to monies as to such
driver (in whole or in part, depending on the resolution of the dispute).
For all individuals for whom Prime has agreed to release entitlement to monies
(described above), Prime has also agreed to the following upon final approval of the
settlement:
•

After final approval of the settlement, Prime will use its best efforts to request
that the national credit reporting agencies (Experian, Equifax and TransUnion
delete any reporting of the trade line(s) with respect to the drivers’ accounts with
Prime in connection with the purported debts released;

•

If a driver requests by letter to HireRight that records of a default to Prime
and/or related entities be corrected in accordance with the release of Prime’s
entitlement to monies, and to the fullest extent permitted by law, Prime agrees to
provide a timely letter to HireRight with a copy to the requesting driver that any

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defaults owing to Prime and/or related entities have been rescinded by mutual
agreement; and
•

Prime and related entities shall give no new or additional negative references to
any driver for having allegedly defaulted on any amounts released.
B.

Settlement notice and claim process.

If this Court, as well as the Haworth Court, preliminarily approve this
settlement, Plaintiffs will send the attached notice and claim form to members of the
proposed class/collective. The parties have agreed to notice being sent by email to all
individuals for whom Prime has email addresses and by first-class mail (with return
envelope provided) for all individuals for whom Prime does not have email addresses
and/or as to whom the emails are returned as undeliverable. The Settlement
Administrator shall make all reasonable efforts to follow up on undeliverable addresses
and to resend the notice and claim form to updated addresses (including all addresses
provided by Plaintiffs’ counsel and/or class members). The Settlement Administrator
shall establish a website with the notice, contact information for the Settlement
Administrator and Plaintiffs’ counsel, and the claim form which may be submitted
electronically (inter alia). A reminder shall go out approximately halfway through the
claim period to those who have not claimed. The reminder shall go out by email to
those with valid email addresses and by a postcard by first-class mail for others. The
reminder shall include the address of the website, as well as contact information for the
Settlement Administrator and Plaintiffs’ counsel.

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Class/collective members shall have sixty days from initial mailing to submit
claim forms, object, or request exclusion from the settlement, except that those
deadlines shall be extended for those whose original notice packet is resent because of
undeliverable addresses so that the individuals have no less than thirty days to submit a
claim form, object, or request exclusion. Class/collective members may submit claim
forms electronically (using electronic signature) via the class settlement website and
may also submit claim forms by mail (including FedEx, UPS, etc.), email, or facsimile,
sent or postmarked by the claim deadline.
The proposed notice constitutes sufficient class notice. “Notice is satisfactory ‘if
it generally describes the terms of the settlement in sufficient detail to alert those with
adverse viewpoints to investigate and to come forward and be heard.’” Nat’l Ass’n of
Deaf v. Massachusetts Inst. of Tech., No. 3:15-CV-30024-KAR, 2020 WL 1495903, at *4
(D. Mass. Mar. 27, 2020) (approving notice which “includes a clear and comprehensive
summary of the provisions of the proposed settlement,” “defines the relevant terms,
explains what content will be captioned, when the captioning will occur, and ‘explains
to class members their right to object and be heard in open court’”); Wallace v. Powell,
288 F.R.D. 347, 367 (M.D. Pa. 2012) (adequate class settlement notice “detailed the nature of
the action, the definition of [the classes], the claims of the Settlement Classes, the terms of
the Settlement Agreement, and the right to object or request exclusion from the terms of the
Settlement”). Substantively, the notice clearly informs settlement class/collective
members about the terms of the settlement, their options with respect to the settlement,
the monetary and non-monetary relief to which they are entitled if they participate, the

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release of claims, relevant deadlines and dates, and contact information for the
Settlement Administrator and Plaintiffs’ counsel. The settlement agreement will also be
available on the settlement website.
The plan for dissemination of the notice is reasonable as well. Notice will be sent
to class/collective members by email or by mail for those for whom Prime does not
have email addresses or for whom emails are returned as undeliverable and will also be
available on the settlement website. A reminder will be sent by mail and/or email as
well to those who have not yet claimed approximately halfway through the claim
period. Class/collective members are able to submit claim forms electronically or by
mail, fax, or email. This notice and method for submission of claim forms is
unquestionably reasonable and the best practicable, particularly for a population of
truck drivers who are often away from home but usually have frequent access to email.
Indeed, courts routinely approve notice dissemination plans similar to this one.
See Romero v. Clean Harbors Surface Rentals USA, Inc., 368 F. Supp. 3d 152, 163 (D.
Mass. 2019) (“[T]he Court agrees with Romero that email notice is appropriate in this
case because it is likely to be more effective than alternative methods.”); Graham v.
Hall’s S. Kitchens, LLC, No. 2:18-CV-02621-RMG, 2018 WL 6177971, at *2 (D.S.C. Nov.
27, 2018) (“[T]he Court finds that notice via email is appropriate in today’s mobile
society.”); see also In re Solodyn (Minocycline Hydrochloride) Antitrust Litig., 2017 WL
5710424, at *1 (D. Mass. Nov. 27, 2017) (approving notice to individual class members
by first-class mail plus posting notice on settlement website); In re Asacol Antitrust
Litig., 2017 WL 4118967, at *3-4 (D. Mass. Sept. 14, 2017) (same).

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For the reasons set forth above, Plaintiffs’ proposed notice and plan for
dissemination of notice and submission of claim forms are fair, reasonable, and
adequate and should be preliminarily approved.
C.

Releases of claims.

As part of the settlement (and subject to its approval by the Courts), Dominic
Oliveira, Rocky Haworth, and Defendant will execute general, mutual releases in favor
of each other. All class and collective members shall release state and federal unpaid
wage claims, contract and quasi-contract claims, and any other claims related to unpaid
wages or compensation that were or could have been brought in the Oliveira and/or
Haworth cases to the fullest extent allowed by law. All persons who opt out of the
settlement will not release any claims. The notice to class/collective members informs
them that, unless they opt out, they are subject to a release of state and federal unpaid
wage claims, contract and quasi-contract claims, and any other claims related to unpaid
wages or compensation that were or could have been brought in the Oliveira and/or
Haworth cases to the fullest extent allowed by law. The notice also separately informs
class/collective members that individuals who opt out will not be bound by the release.
As part of the notice and claim form, collective/class members are reminded again of
their release of claims. As to those who receive only the $100 minimum payment,
checks issued pursuant to this settlement agreement will further contain the language of
this release.

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II.

THE COURT SHOULD GRANT PRELIMINARY APPROVAL OF THIS
SETTLEMENT.
A.

The Court should certify the proposed settlement class/collective
pursuant to Federal Rule of Civil Procedure 23(b)(3) and 29 U.S.C. §
216(b).

For settlement purposes, and as required by Rule 23(e), the proposed settlement
class/collective meets the requirements of Rule 23(a) and Rule 23(b)(3) for certification.
Plaintiffs incorporate by reference their motion for class and collective action
certification and reply brief in support of the motion, Dkt. Nos. 198, 199, 216, which
explain in detail why the proposed class/collective meets the requirements for
certification. Significantly, the settlement class/collective is substantially similar to the
class and collective for which Plaintiffs originally sought certification. Specifically,
Plaintiffs sought FLSA collective certification of the following collective: “All
individuals who have attended training to become truck drivers for Prime and/or have
driven for Prime either as employee drivers or as independent contractor drivers who
have leased their trucks through Prime at any time since October 2, 2012.” Dkt. No. 198
at 1. They sought Rule 23 certification of the following class: “All individuals who
have attended training in Missouri to become truck drivers for Prime at any time since
March 4, 2010.” Id.
The individuals in the proposed class/collective are similarly situated workers
who have suffered the same alleged violation of their wage rights, namely the failure to
pay workers at least minimum wage for all hours worked. Moreover, the class is
numerous, comprised of over 40,000 individuals. Notably, this Court has already
granted class and collective certification on nearly identical claims. In Montoya v. CRST

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Expedited, Inc., the Court granted class and collective certification on claims for unpaid
orientation and failure to pay truck drivers at least minimum wage for driving time
(because of the mileage-based pay system, allegedly unlawful deductions from wages,
and failure to compensate drivers for time in the sleeper berth in excess of eight hours
per day). 311 F. Supp. 3d 411 (D. Mass. 2018). Also, significantly, the Haworth court
has already granted conditional FLSA certification for some of the claims in this case,
holding that individuals who had driven for Prime as B and C seat drivers were
similarly situated with respect to their claims that they were not properly compensated
for all hours worked under the FLSA. Haworth, 2020 WL 1430478.
This Court and other courts in this District have also granted class or collective
certification in numerous unpaid wages claims on behalf of truck drivers who had been
classified as independent contractors. See, e.g., Ouadani v. Dynamex Operations E.,
LLC, No. CV 16-12036-PBS, 2019 WL 4384061, at *7 (D. Mass. Sept. 13, 2019) (granting
class certification on delivery drivers’ claims for independent contractor
misclassification and unpaid wages, because the central question is “[w]hether or not
the . . . Drivers were properly classified as independent contractors rather than
employees,” and Plaintiffs’ evidence about common policies and practices suffices to
ensure that this determination may be made on a classwide basis); Romero v. Clean
Harbors Surface Rentals USA, Inc., 368 F. Supp. 3d 152, 156 (D. Mass. 2019) (granting
FLSA classification based on the plaintiffs’ allegations that: “Clean Harbors directed his
rate of pay; he reported directly to Clean Harbors, which coordinated his work and set
his schedule; Clean Harbors dictated his work locations; he was required to follow

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Clean Harbors’ policies and procedures; and Clean Harbors prohibited him from
working for other employers or subcontracting his work for Clean Harbors”); DaSilva v.
Border Transfer of MA, Inc., 296 F. Supp. 3d 389, 400 (D. Mass. 2017) (“Examining the
standard terms [of the contract] to determine the extent of Border Transfer’s contractual
control is an exercise that appears to lead to common answers.”); Vargas v. Spirit
Delivery & Distribution Services, Inc., 245 F. Supp. 3d 268, 282 (D. Mass. 2017)
(common issues predominated in independent contractor misclassification claim on
behalf of delivery drivers, where “answers to [] inquiries [about liability] should be
readily ascertainable through a common source—Spirit’s corporate records”).
For the reasons set forth in Plaintiffs’ motion for class certification and reply brief
in support of the motion, and as held in the cases cited above, this case is appropriately
certified as a class and collective action for settlement purposes.
B.

The proposed settlement is fair, reasonable, and adequate.

It is well-established that courts prefer settlements of lawsuits over continued
litigation. See, e.g., In re: Google Inc. Cookie Placement Consumer Privacy Litig., 934
F.3d 316, 326 (3d Cir. 2019) (“[W]e favor the parties reaching an amicable agreement
and avoiding protracted litigation.”). “[S]ettlements spare the judicial system and the
litigants the expense and time associated with the full panoply of pretrial, trial and post
trial proceedings.’” Vermont Pure Holdings, Ltd. v. Berry, 23 Mass. L. Rptr. 33, 2010
WL 1665258, *11 (Mass. Super. 2010), quoting 2 McLaughlin on Class Actions § 6:3.
Moreover, “[c]ourts have consistently noted that the public interest favoring the
settlement of litigation is even stronger in the context of class action litigation, where

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one proceeding can resolve many thousands or even millions of claims that might
otherwise threaten to swamp the judiciary.’” Id.
A class action may not be compromised without court approval, and the court
must decide whether the settlement is “fair, reasonable, and adequate.” See Fed. R. Civ.
P. 23(e); see also In re Relafen Antitrust Litig., 360 F. Supp. 2d 166, 195 (D. Mass. 2005).
At the preliminary approval stage, the court applies a “less rigorous standard” and
“need only determine whether the settlement ‘appears to fall within the range of
possible final approval.’” Sesto v. Prospect CharterCARE, LLC, No. CV 18-328 WES,
2019 WL 2394251, at *1 (D.R.I. June 6, 2019); In re JPMorgan Chase Mortg. Modification
Litig., No. 1:11-MD-02290-RGS, 2014 WL 2205493, at *1 (D. Mass. May 28, 2014)
(preliminarily approving settlement “as being fair, reasonable, and adequate, and
within the range of possible approval”).
“A settlement is presumed to be reasonable when it is achieved by arm’s length
negotiations conducted by experienced counsel.” Nat’l Ass’n of Deaf, 2020 WL 1495903,
at *4. Moreover, when the following “procedural guidelines have been followed,” there
is a “presumption that the settlement is within the range of reasonableness”: “‘(1) the
negotiations occurred at arm’s length; (2) there was sufficient discovery; (3) the
proponents of the settlement are experienced in similar litigation; and (4) only a small
fraction of the class objected.’” In re M3 Power Razor System Marketing & Sales
Practice Litig., 270 F.R.D. 45, 62-63 (D. Mass. 2010) (quoting In re Lupron Mktg. and
Sales Prac. Litig., 345 F. Supp. 2d 135, 137 (D. Mass. 2004)).

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Each of these elements is satisfied here.3 First, the proposed settlement resulted
from extensive arms’ length negotiations that occurred over the course of several
months, and which included extensive data production and analysis and a full-day
mediation and numerous follow-up conversations facilitated by an experienced
mediator.4
Second, substantial litigation and discovery has taken place. See Background
section, supra, which describes the litigation and negotiation history in detail. Thus, all
parties were familiar with the factual record underlying the claims in this case.
Third, the parties’ attorneys are experienced in this type of litigation. Plaintiffs’
lead counsel Hillary Schwab and Rachel Smit of Fair Work, P.C. have extensive
experience litigating and settling wage class actions. Indeed, they focus their practice
exclusively on wage and employment matters, and they have been appointed class
counsel in several wage cases. See, e.g., Montoya, 311 F. Supp. 3d at 424 (holding that
undersigned counsel satisfied adequacy element for class certification); Dvornikov v.
Landry’s Inc., No. 15-CV-13286-ADB, 2017 WL 1217110, at *10 (D. Mass. Mar. 31, 2017)
(“Plaintiffs’ counsel [including Hillary Schwab as lead counsel] is clearly qualified,
experienced, and able to undertake this litigation.”); Chebotnikov v. LimoLink, Inc., No.
CV 14-13475-FDS, 2017 WL 2909808, at *2 (D. Mass. July 6, 2017) (“[P]laintiffs’ chosen
lead counsel, Hillary Schwab, appears to be a qualified and experienced attorney in the

Because notice has not yet gone out, the fourth factor – number of objectors – is irrelevant. To the
extent that any class member objects to this settlement after receiving notice, Plaintiffs will address that
objection in their final settlement approval briefing.
3

The parties in Haworth also engaged in another full-day mediation with a different experienced
mediator, although that did not result in settlement..
4

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areas of employment law and class action litigation.”). They are experienced in this
area of the law and have used the knowledge derived from that experience to achieve a
fair and reasonable result for the settlement class.
Counsel in the Haworth case are similarly experienced in wage and hour class
action litigation, and other types of class actions, and their expertise contributed to the
negotiated resolution of this case. Garrett M. Hodes, with the Hodes Law Firm, LLC,
has over twenty years’ experience representing plaintiffs in class actions in mortgage
lending and consumer protection matters, insurance coverage disputes, products
liability and toxic tort matters, and wage and hour matters. He has been appointed as
class counsel in several actions and multidistrict proceedings in Kansas and Missouri
state and federal courts, and the United States District Court for the Western District of
Pennsylvania, on behalf of classes ranging in size from less than twenty to over 14
million, and has been involved in dozens of class action settlements, a class action jury
trial, a 13-day class arbitration, and numerous appeals.5
Virginia Stevens Crimmins and Matthew Crimmins of the Crimmins Law Firm,
LLC also have extensive experience in class and collective action employment litigation
and a history of the successful prosecution of such claims. Ms. Crimmins has had an
emphasis in her career in complex and nationwide employment litigation, including for
example acting as co-lead counsel in nationwide class and collective actions related to

See, e.g., Hopkins v. Kansas Teachers Cmty. Credit Union, 265 F.R.D. 483, 487 (W.D. Mo. 2010);
Landrum v. Meadows Credit Union, 08-441-CV-W-DW, 2012 WL 12957387, at *1 (W.D. Mo. Mar. 16,
2012); In re Cmty. Bank of N. Virginia Mortg. Lending Practices Litig., 03CV0425, 2013 WL 3972458, at *8
(W.D. Pa. July 31, 2013), aff’d, 795 F.3d 380 (3d Cir. 2015).
5

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employment matters, such as the Bank of America MDL wage and hour litigation, In re:
Bank of Am. Wage & Hour Employment Practices Litig., 706 F. Supp. 2d 1369 (U.S. Jud.
Pan. Mult. Lit. 2010). Mr. Crimmins has had a similar emphasis in complex and class
litigation since beginning his practice at a large defense firm and has extensive
experience in the prosecution and settlement of class and collective wage and hour
litigation. Mr. and Mrs. Crimmins have been appointed as counsel for class or
collective actions in employment cases on many occasions, by numerous courts.6 The
experience of the Hodes Law Firm and the Crimmins Law Firm in the areas of class and
collective actions and employment litigation assisted in obtaining the fair and
reasonable result for the settlement class.
Plaintiffs’ counsel take very seriously their obligation and duty to unnamed
settlement class members and will agree to a settlement only when they are convinced
that it is in the best interest of the settlement class. In this case as well, the named
plaintiffs have been committed to obtaining a fair resolution of the case for their fellow
settlement class members as well as themselves, and has supported Plaintiffs’ counsel’s
commitment to negotiating on behalf of the interest of the entire class.

See, e.g., Kafka v. Melting Pot Restaurants, Inc., No. 4:17-cv-00683-HFS, 2019 WL 718830 (W.D. Mo.
Jan. 9, 2019); Sylvester v. Wintrust Fin. Corp., No. 12 C 01899, 2013 WL 5433593 (N.D. Ill. Sept. 30, 2013);
Rottman v. Old Second Bancorp., Inc., 735 F.Supp.2d 988 (N.D. Ill. Aug. 25, 2010); Perry v. Nat’l City Mortg.,
Inc., No. 05-CV-891 DRH, 2007 WL 1810472 (S.D. Ill. June 21, 2007); Gieseke v. First Horizon Home Loan
Corp., 408 F. Supp. 2d (W.D. Mo. Jan. 10, 2006); Gieseke v. First Horizon Home Loan Corp., 408 F. Supp.
2d 1164 (D. Kan. 2006); Davis v. NovaStar Mortg., Inc., 408 F. Supp. 2d 811 (W.D. Mo. 2005).
6

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C.

The proposed incentive awards are fair and reasonable.

In their motion for final settlement approval, Plaintiffs will also request that the
Court approve an incentive award of $50,000 for named plaintiff Dominic Oliveira and
$25,000 for Rocky Haworth, the named plaintiff in the Haworth case. These proposed
incentive awards are fair and reasonable, given that it was the named plaintiffs who not
only initiated this lawsuit on behalf of their coworkers, but who obtained this recovery.
The named plaintiffs were vital to the prosecution of this matter. Not only did Dominic
Oliveira participate in discovery, including responding to written discovery and sitting
for a full day deposition, but he assisted counsel strategically in the case and served an
important role as class representative throughout the case’s journey to the United States
Supreme Court and back. Public Justice awarded Dominic Oliveira its 2019 Change
Maker Award for his work as named plaintiff in this case. Mr. Oliveira’s role as
spokesperson and champion for the rights of workers during this case’s five-year
history was invaluable. Rocky Haworth also participated in written discovery, a full
day deposition in Iowa and an all-day mediation in Kansas City, Missouri, and helped
counsel prepare several Declarations throughout the course of the Haworth
proceedings and assisted in the final settlement negotiations. His participation in the
Haworth matter was vital to protecting the interests of the B and C seat drivers, and the
Class as a whole.
Courts have widely recognized that efforts such as those undertaken by Mr.
Oliveira and Mr. Haworth are deserving of incentive awards, which serve an important
function in promoting enforcement of state and federal law by private individuals while

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encouraging class settlements. See In re Relafen Antitrust Litig., 231 F.R.D. 52, 82 (D.
Mass. 2005) (“Incentive awards are recognized as serving an important function in
promoting class action settlements, particularly where as here, the named plaintiffs
participated actively in the litigation”), quoting In re Lupron, 228 F.R.D. 75, 98 (D. Mass.
2005).7 “Service awards [aka incentive payments] are common in class action cases and
serve to compensate plaintiffs for the time and effort expended in assisting the
prosecution of the litigation, the risks incurred by becoming and continuing as a
litigant, and any other burdens sustained by the plaintiffs. . . It is important to
compensate plaintiffs for the time they spend and the risks they take.” Beckman v.
KeyBank, N.A., 85 Fed. R. Serv. 3d 593 (S.D.N.Y. Apr. 29, 2013).
The incentive payments requested here are well within the range of those
approved in other class actions and are less than 0.3% of the total monetary recovery
available to the Class. See, e.g., In re Asacol Antitrust Litig., 2017 WL 11475275, at *4 (D.
Mass. Dec. 7, 2017) (approving service awards of $100,000 each for five named
plaintiffs); In re Flonase Antitrust Litig., 951 F. Supp. 2d at 751 (awarding incentive
awards of $50,000 and $40,000); Brotherton v. Cleveland, 141 F. Supp. 2d 907, 914 (S.D.
Ohio 2001) (awarding $50,000 incentive payment to named plaintiff who “has been

See also, e.g., In re Compact Disc Min. Adver. Price Antitrust Litig., 292 F. Supp. 2d 184, 189 (D.
Me. 2003) (“Because a named plaintiff is an essential ingredient of any class action, an incentive award
can be appropriate to encourage or induce an individual to participate in the suit”); Savett, et al.,
“Consumer Class Actions: Class Certification Issues, Including Ethical Considerations and Counsel Fees
and Incentive Payments to Named Plaintiffs,” 936 PLI / Corp. 321, 340 (“It has become commonplace for
the named representatives to request a special payment for having borne the flag and headed a class
action. Most courts are receptive to this because they feel that private attorneys general should be
encouraged, and such incentives further the goals of federal and state laws”); Sheppard v. Consol. Edison
Co. of New York, Inc., 2002 WL 2003206, at *5-6 (E.D.N.Y. 2002) (collecting cases approving incentive
payments).
7

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instrumental in bringing this lawsuit forward” and “has performed numerous tasks in
association with this litigation”); McCoy v. Health Net, Inc., 569 F. Supp. 2d 448, 479–80
(D.N.J. 2008) (awarding $60,000 incentive awards to each named plaintiff where “the
Class Representatives spent a significant amount of their own time . . . litigating these
cases for the benefit of the absent members of the settlement class. . .”).
Indeed, in other wage and hour class actions in the trucking industry, courts
have awarded incentive payments in the range requested here. In Van Dusen v. Swift
Transportation Co., the court awarded “Service Awards to Named Plaintiffs in the
amount of $50,000 per Named Plaintiff as the reasonable value of the services provided
by each of the Named Plaintiffs to the Class Members in litigating and resolving this
Action.” D. Ariz. Civil Action No. 2:10-cv-00899, Dkt. No. 1158. In Browne v. P.A.M.
Transport, Inc., the court has granted preliminary approval of the parties’ proposed
settlement, including $50,000 incentive payments for each of three named plaintiffs (for
a total of $150,000). W.D. Ark. Civil Action No. 5:16-cv-5366, Dkt. Nos. 279, 282.
Plaintiffs’ requested incentive payments are appropriate, and Plaintiffs
respectfully request that they be preliminarily approved.
III.

THE REQUESTED ATTORNEYS’ FEES AWARD IS FAIR AND
REASONABLE, AND SUPPORTED BY APPLICABLE PRECEDENT.
In the motion for final settlement approval, Plaintiffs will also request that the

Court approve distribution of a 33% share of the settlement proceeds (up to $9,240,000,
up to half of which would come from reversionary funds) to Plaintiffs’ counsel for
attorneys’ fees, as well as up to $225,000 in litigation costs, including the costs of
settlement administration. The proposed settlement notice informs the settlement class

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members that Plaintiffs’ counsel will request up to 33% of the settlement proceeds as
attorneys’ fees.
Courts generally favor an award of fees from a common fund, as called for by the
proposed settlement in this case. As the Supreme Court has explained:
[T]his Court has recognized consistently that a litigant or a lawyer who
recovers a common fund for the benefit of persons other than himself or
his client is entitled to a reasonable attorneys’ fee from the fund as a
whole. . . . Jurisdiction over the fund involved in the litigation allows a
Court to prevent . . . inequity by assessing attorney’s fees against the
entire fund, thus spreading fees proportionately among those benefited by
the suit.
Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) (citations omitted). See also Blum v.
Stenson, 465 U.S 886, 900 n.16 (1984); In re Thirteen Appeals, 56 F.3d 295 (1st Cir. 1995)
(awarding attorneys’ fees of $68 million out of a $220 million settlement fund).
When awarding fees from a common fund, the “percentage of the fund” method
is preferred over the lodestar method. As the First Circuit observed, the percentage
method is less burdensome to administer than the lodestar method. In re Thirteen
Appeals, 56 F.3d at 307. The court also endorsed the percentage method because it is
result-oriented, and therefore promotes a more efficient use of attorney time – a loadstar
method may give attorneys an incentive to spend as many hours as possible on the
litigation and may discourage early settlements. Id. When using the percentage
method, courts routinely approve fee awards that represent approximately one-third of
the settlement fund.8

8

There are numerous examples of cases in which a one-third fee was approved, including:
Wilensky v. Digital Equipment Corp., C.A. No. 94-10752-JLT (D. Mass. July 11, 2001); Chalverus v.
Pegasystems, Inc., C.A. No. 97-12570-WGY (December 19, 2000) (awarding as an attorneys’ fee one-third
of a more than $5 million recovery); In re Peritus Software Services, Inc. Sec. Litig., C.A. No. 98-10578-

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An award of 33 percent of the fund is consistent with the vital role that
contingency arrangements play in making legal counsel available to individuals who
cannot afford hourly fees. Unlike traditional firms that receive hourly fees on a monthly
basis, employment counsel who take cases on contingency often spend years litigating
cases (typically while incurring significant out-of-pocket expenses for experts,
transcripts, travel, etc.), without receiving any ongoing payment for their work.
Sometimes fees and expenses are recovered; other times, despite hundreds of hours of
work, nothing is recovered. This type of practice is viable only if attorneys, having
received nothing for their work on some cases, receive more in other cases than they
would if they charged hourly fees. Courts have long recognized this reality. See, e.g.,
Hensley v. Eckerhart, 461 U.S. 424, 448 (1983) (noting that “[a]ttorneys who take cases
on contingency, thus deferring payment of their fees until the case has ended and
taking upon themselves the risk that they will receive no payment at all, generally
receive far more in winning cases than they would if they charged an hourly rate”); In
re Union Carbide Corp. Consumer Products Business Securities Litig., 724 F. Supp. 160,
168 (S.D.N.Y. 1989) (“Contingent fee arrangements implicitly recognize the risk factor in
litigation and that the winning cases must help pay for the losing ones if a lawyer who
represents impecunious plaintiffs, or those plaintiffs not so fully committed as to put
their own money where their mouth is, will remain solvent and available to serve the
WGY (D. Mass. Feb. 28, 2000); Zeid v. Open Environment Corp., C.A. No. 96-12466-EFH (D. Mass. June
24, 1999) (awarding a fee of one-third of a $6 million settlement); In re Picturetel Corp. Sec. Litig., C.A.
No. 97-12135-DPW (D. Mass. Nov. 4, 1999) (approving award of one-third of a $12 million settlement
fund); Morton v. Kurzweil Applied Intelligence, Inc., C.A. No. 10829-REK (D. Mass. Feb. 4, 1998); In re
Copley Pharmaceutical, Inc. Sec. Litig., C.A. No. 94-11897-WGY (D. Mass. Feb. 8, 1996) (awarding onethird of a $6.3 million settlement fund); In re Gillette Securities Litig., C. A. No. 88-1858-REK (D. Mass.
Mar. 30, 1994).

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public interest.”). Contingency fee arrangements not only make access to the judiciary
feasible for most private individuals, it also incentivizes parties to discuss settlement
early, thus unburdening the trial courts. See Frank v. Eastman Kodak Co., 228 F.R.D.
174, 188 (W.D.N.Y. 2005) (contingency fees “directly align[] the interests of the class and
its counsel and provide[] a powerful incentive for the efficient prosecution and early
resolution of litigation”).
By permitting clients to obtain attorneys without having to pay hourly fees, the
contingency fee system provides critical access to the courts for people who otherwise
would not be able to find competent counsel to represent them. That access is
particularly important for the effective enforcement of public protection statutes, such
as the wage laws at issue in this case. It is well recognized that “private suits provide a
significant supplement to the limited resources available to [government enforcement
agencies] for enforcing [public protection] laws and deterring violations.” Reiter v.
Sonotone Corp., 442 U.S. 330, 344 (1979).
In this case, Plaintiffs’ counsel have expended extensive time and resources. The
case has been fought heavily over more than five years, including an appeal to the First
Circuit, a fully briefed petition for certiorari to the United States Supreme Court, and
ultimately full briefing and argument to the Supreme Court. Moreover, the case was
not simply settled after the Supreme Court’s decision in Plaintiffs’ favor on the
arbitration issue. The parties continued to litigate extensively over another year and a
half, including full-blown discovery, as well as substantive briefing and argument on
class and collective certification and Prime’s motion to compel arbitration under

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Missouri law, etc. The Haworth case was hard-fought as well, with thorough
discovery, and briefing, argument, and decisions favorable to Plaintiffs on Plaintiffs’
motion for conditional certification under the FLSA and Defendant’s motion for a stay
of the case, and with Defendant’s withdrawal of its motion to compel arbitration after
briefing.
Moreover, in support of their final fee petition in their motion for final settlement
approval, Plaintiffs intend to submit information about their lodestar rates, so that the
Court may perform a lodestar crosscheck.
Accordingly, Plaintiffs respectfully request that the Court preliminarily approve
Plaintiffs’ request for attorneys’ fees.
CONCLUSION
For the reasons set forth above, Plaintiffs respectfully request that this Court
grant preliminary approval of the settlement and the proposed plan of distribution as
fair, reasonable, and adequate, and authorize Plaintiffs to send the proposed notice of
settlement and claim form to the settlement class. Specifically, Plaintiffs request that the
Court issue a preliminary approval order in the form attached to this motion as Exhibit
3.

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Respectfully submitted,
DOMINIC OLIVEIRA,
on behalf of himself
and all others similarly situated,
By their attorneys,
/s/ Hillary Schwab
Hillary Schwab (BBO #666029)
Brant Casavant (BBO #672614)
Rachel Smit (BBO #688294)
FAIR WORK, P.C.
192 South Street, Suite 450
Boston, MA 02111
Tel. (617) 607-3261
Fax. (617) 488-2261
hillary@fairworklaw.com
brant@fairworklaw.com
rachel@fairworklaw.com
Andrew Schmidt, Esq.
Admitted pro hac vice
Andrew Schmidt, PLLC
97 India St.
Portland, ME 040101
Tel. (207) 619-0320
Fax. (207) 221-1029
Andy@MaineWorkerJustice.com
Dated: July 20, 2020

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CERTIFICATE OF SERVICE
I hereby certify that on July 20, 2020, I electronically filed the foregoing with the
Clerk of the Court by using the CM/ECF system which will send a notice of electronic
filing to all counsel of record.
/s/ Hillary Schwab
Hillary Schwab

33

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Case 1:15-cv-10603-PBS Document 252-1 Filed 07/20/20 Page 1 of 74

SETTLEMENT AGREEMENT
AND
RELEASE OF CLAIMS

Dominic Oliveira, et al. v. New Prime, Inc.,
D. Mass. Civil Action No. 1:15-cv-10603
and
Haworth, et al. v. New Prime, Inc.,
W.D. Mo. Civil Action No. 6:19-03025-CV-RK

EXHIBIT 1

 DocuSign Envelope ID: 781F31BC-DA9F-474B-8BB5-8CE4D3A2696F

Case 1:15-cv-10603-PBS Document 252-1 Filed 07/20/20 Page 2 of 74

The Parties to this Settlement Agreement and Release of Claims (“Agreement”) are
Defendant New Prime, Inc. (“Prime” or “Defendant”), and Named Plaintiffs Dominic Oliveira
and Rocky Haworth (collectively the “Named Plaintiffs,” “Class Representatives” or
“Plaintiffs” and, collectively with the Defendant, the “Parties”), for themselves and on behalf
of other similarly situated class members in Dominic Oliveira, et al. v. New Prime, Inc., Case No.
1:15-cv-10603, filed in the United States District Court for the District of Massachusetts (“the
Oliveira Matter”) and Rocky Haworth, et al. v. New Prime, Inc., Case No. 6:19-03025-CV-RK,
filed in the United States District Court for the Western District of Missouri (“the Haworth
Matter” and collectively with the Oliveira Matter, the “Litigation”).
RECITALS
WHEREAS, Named Plaintiff Dominic Oliveira filed the Oliveira Matter as a Rule 23
putative class action and Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b) collective action
seeking recovery of unpaid wages against Defendant on behalf of himself and similarly situated
individuals who attended training to become a truck driver for Prime and/or who have driven for
Prime as an employee driver and/or independent contractor, and asserted claims that are set forth
in the operative complaint (Oliveira, Dkt. 33);
WHEREAS, Named Plaintiff Rocky Haworth filed the Haworth Matter as a Rule 23
putative class action and FLSA collective action seeking recovery of unpaid wages against
Defendant on behalf of himself and similarly situated individuals who drove for Prime as junior
or B / C seat drivers, and asserted claims that are set forth in the operative complaint (Haworth,
Dkt. 1);
WHEREAS, Defendant filed Answers denying the material allegations in the Oliveira
Matter and Haworth Matter, denying all liability, and setting forth additional affirmative and other
defenses (Oliveira, Dkt. 117; Haworth, Dkt. 17);
Page 1 of 42

EXHIBIT 1

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Case 1:15-cv-10603-PBS Document 252-1 Filed 07/20/20 Page 3 of 74

WHEREAS, the Parties engaged in significant discovery during the prosecution of the
Litigation, including the exchange of Rule 26 disclosures, service of formal document requests
and interrogatories, the production of millions of lines of electronic data pertaining to the class
members, as well as multiple depositions;
WHEREAS, the parties understand that their counsel, counsel for the Named Plaintiffs
(who are set forth as proposed Class Counsel in the respective actions under this agreement,
hereinafter, “Class Counsel”) and Defendant’s Counsel respectively have thoroughly investigated
the facts relating to the claims alleged in the Litigation, including the events and transactions
underlying the Litigation, through formal and informal discovery, and have made a thorough study
of the legal principles applicable to the claims being asserted against Defendant and a
comprehensive analysis of the electronic data produced by Defendant;
WHEREAS, the Haworth Court granted conditional certification, under the FLSA, as to a
portion of the proposed classes, on March 23, 2020 (Dkt. 84);
WHEREAS, the Parties have engaged in lengthy arm’s length negotiations via formal
mediation with two separate mediators, D. Charles Stohler, Esq. (in Oliveira), and John Phillips,
Esq. (in Haworth), and have further engaged in lengthy and extensive settlement discussions
overseen by D. Charles Stohler, Esq. concerning the settlement of the claims and causes of action
being asserted against Defendant in the Litigation;
WHEREAS, as a product of such negotiations, the Parties arrived at an agreement to settle
the Litigation on the basis described herein, subject to Court approval;
WHEREAS, Defendant denies all of the allegations in the Litigation and any and all
liability and damages of any kind to anyone with respect to these alleged facts or causes of action
asserted in the Litigation, but nonetheless, without admitting or conceding any liability or damages

Page 2 of 42

EXHIBIT 1

 DocuSign Envelope ID: 781F31BC-DA9F-474B-8BB5-8CE4D3A2696F

Case 1:15-cv-10603-PBS Document 252-1 Filed 07/20/20 Page 4 of 74

whatsoever, has agreed to settle the Litigation on the terms and conditions set forth in this
Agreement to avoid the burden, expense, and uncertainty of continuing the Litigation;
WHEREAS, the Parties recognize that the outcome in the Litigation is uncertain and that
achieving a final result through the litigation process would require substantial additional risk,
discovery, time, and expense;
WHEREAS, the Named Plaintiffs through Class Counsel have conducted an investigation
and evaluation of the facts and law relating to the claims asserted in the Litigation to determine
how best to serve the interests of all potential class members and believe, in view of the costs,
risks, and delay of continued litigation balanced against the benefits of settlement, that the
settlement as provided in this Agreement is in the best interests of putative class members and that
the settlement provided in this Agreement represents a fair, reasonable, and adequate resolution of
the Litigation;
WHEREAS, the Parties have agreed to settle this Litigation as to all individuals who have
attended training to become truck drivers for Prime and/or have driven for Prime as employee
drivers and/or as independent contractor drivers who have leased their trucks through Prime at any
time since October 2, 2012 through May 8, 2020 , and all individuals who have otherwise attended
training in Missouri to become truck drivers for Prime at any time since March 4, 2010 through
May 8, 2020, except two individuals who served as named plaintiffs in another class settlement
against Prime in the case of Montgomery v. New Prime, Inc., C.D. Cal. Civil Action No. 8:17-cv00321, and signed full releases as part of that settlement.
NOW THEREFORE, the Parties, intending to be legally bound and acknowledging the
sufficiency of the consideration and undertakings set forth herein, do hereby agree as follows:

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DEFINITIONS
1.

“Class Counsel” or “Named Plaintiffs/Class Counsel” means Fair Work, P.C.,

Crimmins Law Firm, LLC and Hodes Law Firm, LLC who are designated as Class
Counsel for purposes of this settlement upon entry of the Order granting preliminary approval.
2.

“Defendant” means New Prime, Inc.

3.

“Defendant’s Counsel” means Gibson, Dunn & Crutcher LLP.

4.

“Final Approval Order” means an Order of the Court finally approving this

Agreement and the settlement pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b) and
Federal Rule of Civil Procedure 23(b)(3).
5.

“Named Plaintiffs” means the plaintiffs who filed the Oliveira and Haworth

Matters. “Plaintiff Oliveira” or “Named Plaintiff Oliveira” means Plaintiff Dominic Oliveira,
who filed the Oliveira Matter. “Plaintiff Haworth” or “Named Plaintiff Haworth” means
Plaintiff Rocky Haworth, who filed the Haworth Matter.
6.

“Putative Class/Collective Members” means all individuals who have attended

training to become truck drivers for Prime and/or have driven for Prime as employee drivers and/or
as independent contractor drivers who have leased their trucks through Prime at any time since
October 2, 2012 through May 8, 2020, and all individuals who have otherwise attended training in
Missouri to become truck drivers for Prime at any time since March 4, 2010 through May 8, 2020,
except for the named plaintiffs in Montgomery v. New Prime, Inc., C.D. Cal. Civil Action No.
8:17-cv-00321.
a.

“A Seat Class” means those Putative Class/Collective Members who were

employee drivers who drove as A seat drivers for Defendant at any time since October 2, 2012
through May 8, 2020.

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b.

“B/C Seat Class” means those Putative Class/Collective Members who were

employed by Defendant as a B or C seat driver at any time since October 2, 2012 through May 8,
2020.
c.

“Independent Contractor Class” means those Putative Class/Collective Members

who drove for Defendant as an Independent Contractor at any time since October 2, 2012 through
May 8, 2020.
d.

“Orientation Class” means those Putative Class/Collective Members who

participated in orientation for prospective A, B, C, or D seat drivers through Defendant at any time
since October 2, 2012 through May 8, 2020 and/or participated in orientation for prospective A,
B, C, or D seat drivers through Defendant in Missouri at any time since March 4, 2010 through
May 8, 2020.
7.

“Settlement Class” or “Participating Class Members” means Named Plaintiffs

and those Putative Class/Collective Members who do not exclude themselves from the settlement.
a.

“Claiming Class Members” means Named Plaintiffs and any Putative

Class/Collective Member who has filed a Claim/Consent to Join Form.
b.

“Minimum Participation Class Member” means any Putative Class Member who

does not submit a Claim/Consent to Join Form and does not exclude himself or herself from the
settlement. Minimum Participation Class Members shall also be considered “Participating Class
Members” for all purposes.
8.

“Settlement Effective Date” means the first day after the last of the following

occurrences: (i) the issuance of the Final Approval Order, (ii) if an objection has been made to
final approval of the settlement, the date on which the objector’s time to appeal the Final Approval
Order has expired with no appeal or other judicial review having been taken or sought, or (iii) if

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an appeal of the Final Approval Order has been timely filed, the date the Final Approval Order is
finally affirmed by an appellate court with no possibility of subsequent appeal or other judicial
review, or the date the appeal(s) or other judicial review are finally dismissed with no possibility
of subsequent appeal or other judicial review.
9.

“Settlement Fund” means the common settlement fund described in Paragraph A

below.
EXHIBITS
The following exhibits are attached to this Agreement.
Exhibit A: Notice of Class and Collective Action Settlement (Electronic Version)
Exhibit B: Notice of Class and Collective Action Settlement (Paper Version)
Exhibit C: Claim/Consent to Join Form
Exhibit D: Proposed Preliminary Approval Order in the Haworth Matter
Exhibit E: Proposed Preliminary Approval Order in the Oliveira Matter
Exhibit F: Proposed Final Approval Order
SETTLEMENT TERMS
A. Settlement Fund. Defendant agrees that a common settlement fund in the amount of
Twenty Eight Million Dollars and No Cents ($28,000,000.00) will be established to resolve any
and all state, federal (FLSA), and common law-related wage and hour claims of Named Plaintiffs
and all Putative Class/Collective Members against Defendant.
This Settlement Fund is inclusive of any and all alleged unpaid wages, liquidated
damages, penalties, attorneys’ fees, costs, expenses, including reasonable settlement
administration costs, and any reasonable service awards. Defendant’s share of payroll taxes, if
any, will be borne separately from the Settlement Fund. The Parties are to each pay their own

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fees, costs, and expenses, other than those approved by the Court to come from the Settlement
Fund.
Only the Named Plaintiffs and Putative Class/Collective Members who receive a
notice of settlement (the “Notice Packet”) pursuant to Paragraph F and who do not exclude
themselves pursuant to Paragraph D.4 are entitled to participate in the settlement (all of whom
shall be considered Participating Class Members).
Fourteen Million Dollars and No Cents ($14,000,000.00) of the Settlement Fund
shall be non-reversionary (“Non-Reversionary Settlement Fund”). Fourteen Million Dollars and
No Cents ($14,000,000.00) of the Settlement Fund shall be considered reversionary
(“Reversionary Settlement Fund”).
The Settlement Fund, including the Non-Reversionary Settlement Fund and the
Reversionary Settlement Fund shall be allocated in accordance with Paragraph C.
B. Settlement Classes.
Orientation Class: Seven Million Dollars and No Cents ($7,000,000.00) from the
Non-Reversionary Settlement Fund has been allocated to the Orientation Class (“Orientation
Class Fund”).
B and C Seat Class: Eight Million Five Hundred Thousand Dollars and No Cents
($8,500,000.00) has been allocated to the claims of the B/C Seat Class, of which $3,500,000.00
shall come from the Non-Reversionary Settlement Fund (“B/C Seat Class Non-Reversionary
Fund”) and $5,000,000.00 shall come from the Reversionary Settlement Fund (“B/C Seat Class
Reversionary Fund”).
A Seat Class: Eight Million Five Hundred Thousand Dollars and No Cents
($8,500,000.00) has been allocated to the claims of the A Seat Class, of which $3,500,000.00 shall

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come from the Non-Reversionary Fund (“A Seat Class Non-Reversionary Fund”), and
$5,000,000.00 shall come from the Reversionary Settlement Fund (“A Seat Class Reversionary
Fund”).
Independent Contractor Class:

Four Million Dollars and No Cents

($4,000,000.00) has been allocated to the claims of the Independent Contractor Class from the
Reversionary Settlement Fund. (“Independent Contractor Class Fund”).
C. Settlement Fund Allocation.
Minimum Allocation. Each Putative Class Member shall be allocated a minimum
settlement amount of $100.00 (“Minimum Allocation”). The Notice shall advise the Putative
Class/Collective Members that this is the maximum amount they shall receive from the Settlement
Fund if they do not exclude themselves from the Settlement and do not submit a Claim/Consent to
Join Form. The Minimum Allocation shall be paid from the Settlement Fund out of the NonReversionary Settlement Fund. If the Putative Class Member is a member of all of the subclasses or is a member of the Orientation Class, B/C Seat Class and A Seat Class, $34.00 of the
Minimum Allocation will be paid from the Orientation Class Fund, $33.00 of the Minimum
Allocation will be paid from the B/C Seat Class Non-Reversionary Fund and $33.00 of the
Minimum Allocation will be paid from the A Seat Class Non-Reversionary Fund. If the Putative
Class Member is a member of only the Orientation Class and the B/C Seat Class, $50.00 of the
Minimum Allocation will be paid from the Orientation Class Fund, and $50.00 of the Minimum
Allocation will be paid from B/C Seat Class Non-Reversionary Fund. If the Putative Class Member
is a member of only the Orientation Class and the A Seat Class, $50.00 of the Minimum Allocation
will be paid from the Orientation Class Fund, and $50.00 of the Minimum Allocation will be paid
from the A Seat Class Non-Reversionary Fund. If the Putative Class Member is a member of only

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the Orientation Class and the Independent Contractor Class, $100.00 of the Minimum Allocation
will be paid from the Orientation Class Fund.
Settlement Share. Each Putative Class Member shall be allocated a proportionate
share of the Settlement Fund as follows:
a. Each Putative Class Member shall be assigned to each Settlement Class in which
he or she is a member as set forth in Paragraph B. Each participant will be a member of at least
one Settlement Class.
b. The following settlement formula will be applied to each Settlement Class fund as
follows:
i.

Orientation Class Settlement Allocation: The Orientation Class Fund shall

be reduced by the minimum allocations as set forth in Paragraph C.1, attorneys’ fees as set forth
in Paragraph C.5, the service award to Named Plaintiff Oliveira, and reasonable settlement and
litigation costs as set forth in Paragraphs C.6 and C.7. The Orientation Class Fund, as reduced by
the foregoing amounts, shall be referred to as the “Remaining Orientation Class Fund.” The
Remaining Orientation Class Fund shall be allocated among the Putative Class/Collective
Members who are members of the Orientation Class and who submit a Claim/Consent to Join
Form as follows:
a) Each Orientation Class Member is assigned numerical shares of the
settlement fund based on the following parameters (“Individual Orientation Class Member
Numerator”): 1 share for attending D seat orientation in Missouri before March 2012; 2 shares
for attending D seat orientation since March 2012; 1 share if the class member has worked as an
A seat driver or an independent contractor driver; and/or 1.25 shares if the class member has
worked as both an A seat driver and an independent contractor driver. Once the shares are

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allocated, a there will be a 1.5 multiplier for each share connected with any D seat orientation
attended in Missouri since March 2012. Additionally, individuals who have zero miles as either a
B/C seat, A seat, or independent contractor driver but do not otherwise appear in the data will
receive 1 orientation share.
b) The Individual Orientation Class Member Numerators for all Orientation
Class Members will be added to obtain the “Total Orientation Class Member Denominator.”
c) To determine the “Orientation Fund Resulting Decimal” for each
Orientation Class Member, the Orientation Class Member’s Individual Orientation Class Member
Numerator will be divided by the Total Orientation Class Member Denominator.
d) To determine the settlement share from the Remaining Orientation Class
Fund for each Orientation Class Member, the Orientation Fund Resulting Decimal will be
multiplied by the Remaining Orientation Class Fund. (“Orientation Class Member Settlement
Share”).
e) Orientation Class Members who submit Claim/Consent to Join Forms shall
receive their Orientation Class Member Settlement Shares. Additionally, any amounts that are not
claimed from the Remaining Orientation Class Fund shall be redistributed among Orientation
Class Members who submit Claim/Consent to Join Forms in proportion to their allocated amounts
from the Remaining Orientation Class Fund. No amount from the Orientation Class Fund shall
revert to the Defendant.
ii.

B/C Seat Class Settlement Allocation: The B/C Seat Class Settlement

Allocation shall be composed of payments from the B/C Seat Class Non-Reversionary Fund and
the B/C Seat Reversionary Fund.

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a) Each class member shall be assigned a B/C Seat Decimal as follows, which
shall determine their allocations from the B/C Seat Class Non-Reversionary Fund and the B/C Seat
Reversionary Fund:
1)

Each B/C Seat Class Member’s total number of weeks employed as

a B or C seat driver will be multiplied by the number of miles driven as a B or C seat driver and
divided by gross earnings while employed as a B or C seat driver. The resulting calculation for
each B/C Seat Class Member is the “Individual B/C Seat Class Member Numerator.”
2)

The Individual B/C Seat Class Member Numerators for each B/C

Seat Class Member will be added to obtain the “Total B/C Seat Class Member Denominator.”
3)

To determine the “B/C Seat Resulting Decimal” for each B/C Seat

Class Member, the B/C Seat Class Member’s Individual B/C Seat Class Member Numerator will
be divided by the Total B/C Seat Class Member Denominator.
b) B/C Seat Reversionary Settlement Allocation:

The B/C Seat Class

Reversionary Fund shall be reduced by the dispute fund amount as set forth in Paragraph C.8, and
attorneys’ fees as set forth in Paragraph C.5. The B/C Seat Class Reversionary Fund, as reduced
by the foregoing amounts, shall be referred to as the “Remaining B/C Seat Class Reversionary
Fund.” The Remaining B/C Seat Class Reversionary Fund shall be allocated among the Putative
Class/Collective Members who are members of the B/C Seat Class by multiplying each B/C Seat
Class Member’s B/C Seat Resulting Decimal by the Remaining B/C Seat Class Reversionary
Fund. The resulting amount shall be the “B/C Seat Class Reversionary Fund Settlement Share”
for each B/C Seat Class Member.
c) B/C Seat Non-Reversionary Settlement Allocation: The B/C Seat Class
Non-Reversionary Fund shall be reduced by the minimum allocations as set forth in Paragraph

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C.1, attorneys’ fees as set forth in Paragraph C.5, the service award to Named Plaintiff Haworth,
and reasonable settlement and litigation costs as set forth in Paragraphs C.6 and C.7. The B/C Seat
Class Non-Reversionary Fund, as reduced by the foregoing amounts, shall be referred to as the
“Remaining B/C Seat Class Non-Reversionary Fund.” The Remaining B/C Seat Class NonReversionary Fund shall be allocated among the Putative Class/Collective Members by
multiplying each B/C Seat Class Member’s B/C Seat Resulting Decimal by the Remaining B/C
Seat Non-Reversionary Fund (“B/C Seat Class Non-Reversionary Fund Settlement Share”).
d) B/C Seat Class Members who submit a Claim/Consent to Join Form shall
be entitled to their B/C Seat Class Reversionary Fund Settlement Share plus their B/C Seat Class
Non-Reversionary Fund Settlement Share (“B/C Seat Class Settlement Share”). B/C Seat Class
Members who do not exclude themselves and do not submit a Claim/Consent to Join Form shall
only be entitled to receive their Minimum Allocation. Amounts allocated from the Remaining B/C
Seat Class Member Reversionary Fund to the B/C Seat Class Members who do not submit a
Claim/Consent to Join Form shall revert to Defendant. Amounts allocated from the Remaining
B/C Seat Class Member Non-Reversionary Fund to B/C Seat Class Members who do not submit
a Claim/Consent to Join Form shall be distributed proportionately to those who do submit
Claim/Consent to Join Forms by multiplying each B/C Seat Class Member's Resulting Decimal by
the unclaimed B/C Seat Class Non-Reversionary Fund.
iii.

A Seat Class Settlement Allocation:

The A Seat Class Settlement

Allocation shall be composed of payments from the A Seat Class Non-Reversionary Fund and the
A Seat Reversionary Fund.

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a) Each class member shall be assigned an A Seat Decimal as follows, which
shall determine their allocations from the A Seat Class Non-Reversionary Fund and the A Seat
Reversionary Fund:
1)

Each A Seat Class Member’s total number of weeks employed as an

A seat driver will be multiplied by the number of miles driven as an A seat driver and divided by
gross earnings while employed as an A seat driver. The resulting calculation for each A Seat Class
Member is the “Individual A Seat Class Member Numerator.”
2)

The Individual A Seat Class Member Numerators for each A Seat

Class Member will be added up to obtain the “Total A Seat Class Member Denominator.”
3)

To determine the “A Seat Resulting Decimal” for each A Seat Class

Member, the A Seat Class Member’s Individual A Seat Class Member Numerator will be divided
by the Total A Seat Class Member Denominator.
b)

A Seat Reversionary Settlement Allocation:

The A Seat Class

Reversionary Fund shall be reduced by the dispute fund amount as set forth in Paragraph C.8, and
attorneys’ fees as set forth in Paragraph C.5. The A Seat Class Reversionary Fund, as reduced by
the foregoing amounts, shall be referred to as the “Remaining A Seat Class Reversionary Fund.”
The Remaining A Seat Class Reversionary Fund shall be allocated among the Putative
Class/Collective Members who are members of the A Seat Class by multiplying each A Seat Class
Member’s A Seat Resulting Decimal by the Remaining A Seat Class Reversionary Fund. The
resulting amount shall be the “A Seat Class Reversionary Fund Settlement Share” for each A
Seat Class Member.
c)

A Seat Non-Reversionary Settlement Allocation: The A Seat Class Non-

Reversionary Fund shall be reduced by the minimum allocations as set forth in Paragraph C.1,

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attorneys’ fees as set forth in Paragraph C.5, the service award to Named Plaintiff Oliveira, and
reasonable settlement and litigation costs as set forth in Paragraphs C.6 and C.7. The A Seat Class
Non-Reversionary Fund, as reduced by the foregoing amounts, shall be referred to as the
“Remaining A Seat Class Non-Reversionary Fund.” The Remaining A Seat Class NonReversionary Fund shall be allocated among the Putative Class/Collective Members who are
members of the A Seat Class by multiplying each A Seat Class Member’s A Seat Resulting
Decimal by the Remaining A Seat Non-Reversionary Fund (“A Seat Class Non-Reversionary
Fund Settlement Share”).
d) A Seat Class Members who submit a Claim/Consent to Join Form shall be
entitled to their A Seat Class Reversionary Fund Settlement Share plus their A Seat Class NonReversionary Fund Settlement Share (“A Seat Class Settlement Share”). A Seat Class Members
who do not themselves and do not submit a Claim/Consent to Join Form shall only be entitled to
receive their Minimum Allocation.

Amounts allocated from the A Seat Class Member

Reversionary Fund to the A Seat Class Members who do not submit a Claim/Consent to Join Form
shall revert to Defendant. Amounts allocated from the Remaining A Seat Class Member NonReversionary Fund to A Seat Class Members who do not submit a Claim/Consent to Join Form
shall be distributed proportionately to those who do submit Claim/Consent to Join Forms by
multiplying each B/C Seat Class Member's Resulting Decimal by the unclaimed B/C Seat Class
Non-Reversionary Fund.
iv.

Independent Contractor Class Settlement Allocation: The Independent

Contractor Class Settlement Fund shall be reduced by the dispute fund amount as set forth in
Paragraph C.8, and attorneys’ fees as set forth in Paragraph C.5. The Independent Contractor
Class Fund, as reduced by the foregoing amounts, shall be referred to as the “Remaining

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Independent Contractor Class Fund.” The Remaining Independent Contractor Class Fund shall
be allocated among the Putative Class/Collective Members who are members of the Independent
Contractor Class and who submit a Claim/Consent to Join Form as follows:
a) Each Independent Contractor Class Member’s total number of weeks
worked as an Independent Contractor driver will be multiplied by the number of miles driven as
an Independent Contractor driver and divided by 65% of gross earnings. The resulting calculation
for each Independent Contractor Class Member is the “Individual Independent Contractor
Class Member Numerator” for each Independent Contractor Class Member.
b) The Individual Independent Contractor Class Member Numerators for each
Independent Contractor Class Member will be added to obtain the “Total Independent
Contractor Class Member Denominator.”
c) To determine the “Independent Contractor Resulting Decimal” for each
Independent Contractor Class Member, the Independent Contractor Class Member’s Individual
Independent Contractor Numerator will be divided by the Total Independent Contractor Class
Member Denominator.
d) To determine the settlement share from the Independent Contractor Class
Settlement Fund for each Independent Contractor Class Member, the Independent Contractor
Resulting Decimal will be multiplied by the Remaining Independent Contractor Class Settlement
Fund. (“Independent Contractor Class Settlement Share”).
e) Independent Contractor Seat Class Members who submit a Claim/Consent
to Join Form shall be entitled to their Independent Contractor Class Settlement Share. Independent
Contractor Class Members who do not exclude themselves and do not submit a Claim/Consent to
Join Form shall be entitled to receive their Minimum Allocation. Amounts allocated from the

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Independent Contractor Class Fund to the Independent Contractor Class Members who do not
submit a Claim/Consent to Join Form shall revert to Defendant.
v.

Two individuals who served as named plaintiffs in Montgomery v. New

Prime, Inc., C.D. Cal. Civil Action No. 8:17-cv-00321 (who signed full releases of claims which
would include the claims in this case as part of the settlement), shall not be entitled to receive
monies as part of this settlement and shall be excluded from the class. Individuals who participated
as class members in the class settlement in Montgomery v. New Prime, Inc., C.D. Cal. Civil Action
No. 8:17-cv-00321 shall be entitled to receive 50% of what would be their total settlement share
in this case if they had not participated in that settlement, and their resulting numerators and/or
settlement shares will be decreased by 50%. Any amounts not distributed to Montgomery plaintiffs
and/or class members from this settlement shall be proportionally redistributed to other eligible
class members.
vi.

The respective settlement allocations for each Claiming Class Member shall

be the sum of his or her respective Class settlement shares as set forth in Paragraph C.2, plus the
$100.00 minimum flat payment as set forth in Paragraph C.1. Minimum Participation Class
Members shall receive only the $100.00 Minimum Allocation. In either circumstance, the total
allocation will be referred to as the “Settlement Allocation.”
vii.

Putative Class/Collective Members who exclude themselves will not be

entitled to receive amounts from the Settlement Fund and will not be entitled to a Settlement
Allocation.
Settlement Allocation. For purposes of Notice, Class Members shall be advised
of the specific minimum amount that they will receive from the settlement if they submit a
Claim/Consent to Join Form, as well as the fact that their total award from the Non-Reversionary

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Funds may increase depending on the number of claimants. One-half of the Settlement Allocation
to each Participating Class Member shall represent settlement of that Participating Class Member’s
claims for alleged unpaid wages pursuant to the FLSA, Missouri Minimum Wage Law and other
wage laws, and common laws, which shall be reported on an IRS Form W-2, less applicable taxes
and other wage withholdings. The remaining one-half of each Participating Class Member’s
Settlement Allocation shall represent settlement of that Participating Class Member’s claims for
alleged liquidated damages pursuant to the FLSA and Missouri Minimum Wage Law, which shall
be reported on an IRS Form 1099 as “other income” (reported in Box 3) without any deduction for
taxes or other withholdings.
Payroll Taxes. Each side shall bear their own share of any payroll taxes. The
Defendant will bear the employer’s share of payroll taxes which shall be paid separately from the
Settlement Fund. The Settlement Administrator will withhold the employees’ share of any payroll
taxes, which will be borne from the Settlement Fund. Each side shall bear the liability as to their
shares of any taxes owed, and the parties shall not be responsible or liable for taxes owed by other
parties.
Attorneys’ Fees. Named Plaintiff’s Counsel/Class Counsel will apply for an award
of attorneys’ fees, costs, and expenses in a total amount not to exceed thirty-three percent (33%)
of the Settlement Fund. These amounts will be borne out of the reversionary and non-reversionary
funds as determined by the Court, except that the Parties agree that under no circumstance shall
more than $4,620,000.00 in attorneys’ fees be borne out of the Reversionary Settlement Fund.
Amounts for attorneys’ fees that are not awarded out of the non-reversionary funds shall be
reallocated to the non-reversionary funds (for allocation to Putative Class/Collective Members).
Amounts for attorneys’ fees that are not awarded out of the reversionary funds shall revert to

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Defendant. The Parties agree and understand that the Court has ultimate authority to accept, reject,
or modify the attorneys’ fees, and the settlement is not contingent on the Court’s approval of the
amounts requested for attorneys’ fees.
Service Awards. Named Plaintiff’s Counsel/Class Counsel will apply for
reasonable service awards in a total amount not to exceed Seventy-Five Thousand Dollars and No
Cents, allocating no more than Fifty Thousand Dollars and No Cents ($50,000.00) for Dominic
Oliveira and no more than Twenty-Five Thousand Dollars and No Cents ($25,000.00) for Rocky
Haworth, both of whom materially participated in the prosecution of this Litigation (“Service
Award”). Of the total Service Award amount, Twenty-Five Thousand Dollars and No Cents
($25,000.00) of the service awards shall be awarded from the Orientation Fund, Twenty-five
Thousand Dollars and No Cents ($25,000.00) of the service awards shall be awarded from the A
Seat Class Non-Reversionary Fund and Twenty-Five Thousand Dollars and No Cents
($25,000.00) of the service awards shall be awarded from the B/C Seat Class Non-Reversionary
Fund. Payment of any Service Award to Named Plaintiffs shall be treated as a non-wage payment
for payroll tax purposes. In exchange for the Service Award and other agreements herein, the
Named Plaintiffs and Defendant agree to a general and global, mutual release of all known and
unknown claims that any party may have against another, or that Named Plaintiffs may have
against any subsidiary or affiliate of Defendant, or that any subsidiary or affiliate of Defendant
may have against Named Plaintiffs. Amounts from the service awards that are not awarded will
be reallocated to the Orientation Class Fund, the A Seat Class Non-Reversionary Fund or the B/C
Seat Class Non-Reversionary Fund in shares proportionate to the total amount of each NonReversionary Fund (i.e., 50% to the Orientation Class Fund, 25% to the A Seat Class NonReversionary Fund, and 25% to the B/C Seat Class Non-Reversionary Fund). The Parties agree

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and understand that the Court has ultimate authority to accept, reject, or modify the Service
Awards, and the settlement is not contingent on the Court’s approval of the amounts requested for
Service Awards.
Costs and Settlement Administration Fees. If the Court grants preliminary
approval of this Agreement, the settlement will be administered by a Settlement Administrator as
set forth below in Paragraph F, who will be responsible for establishing a Qualified Settlement
Fund (“QSF”), administering the settlement, issuing Settlement Allocation checks, issuing tax
forms, calculating taxes, answering Putative Class Member inquiries, sending any necessary
follow-up correspondence to Putative Class/Collective Members, and other administration duties
necessary to administer the settlement. Reasonable costs and settlement administration fees shall
not exceed $225,000.00, which shall be split proportionately between the Orientation Class Fund
(50%), the A Seat Class Non-Reversionary Fund (25%) and the B/C Seat Class Non-Reversionary
Fund (25%). The Parties agree and understand that the Court has ultimate authority to accept,
reject, or modify the award of costs, and the settlement is not contingent on the Court’s approval
of the amounts requested for the award of costs.
Dispute Fund. A fund of $200,000.00 shall be set aside to resolve disputes and
reasonable late claims. Named Plaintiffs/Class Counsel shall make determinations about who is
to be paid (with approval of Defendant’s counsel, which approval shall not be unreasonably
withheld). Fifty percent of the Dispute Fund shall be taken from the Independent Contractor Class
Fund, and twenty-five percent shall be taken from the B/C Seat Class Reversionary Fund, and
twenty-five percent shall be taken from the A Seat Class Reversionary Fund. Any funds ultimately
left over from this fund shall revert to Defendant.

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D. Settlement Approval Process:
Haworth Matter. The Parties agree to seek the Missouri Court’s preliminary
approval of the Agreement with respect to the claims of the B/C Seat Class. Named Plaintiff
Haworth will file a Motion for Preliminary Approval of Settlement with the Missouri Court and a
Motion to Transfer for Settlement Purposes Only, which is subject to review and approval by
Defendant, which approval shall not be unreasonably withheld. Named Plaintiff Haworth will
simultaneously submit a Proposed Order Preliminarily Approving Settlement in the same form as
Exhibit D (or, with Defendant’s agreement, a Proposed Order in substantially the same form), and
that Proposed Order will include:
a. granting Preliminary Approval to the Settlement for the B/C Seat Class, adjudging
the terms to be fair, reasonable, and adequate, and directing consummation of its terms and
provisions;
b. confirming certification of the Haworth Matter as an FLSA collective action for
settlement purposes;
c. certification of the Haworth Matter as a class action under Federal Rule of Civil
Procedure 23(b)(3) for settlement purposes only;
d. designating Named Plaintiff Rocky Haworth as a Class Representative for the B/C
Seat Class;
e. appointing the Crimmins Law Firm, LLC, Hodes Law Firm, LLC and Fair Work,
P.C. as Class Counsel pursuant to Rule 23(c)(1)(B) and (g) for settlement purposes only;
f. approving the Notice substantially in the form of Exhibits A-C for distribution to
the B/C Seat Class, and finding that the Notice to be given constitutes the best notice practicable
under the circumstances, including individual notice to all Class Members who can be identified

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with reasonable effort, and constitutes valid, due and sufficient notice to Class Members in full
compliance with the requirements of applicable law, including the due process clause of the United
States Constitution;
g. transferring the Haworth Matter to the United States District Court for the District
of Massachusetts to be consolidated with the case styled Dominic Oliveira et al. v. New Prime,
Inc., Civil Action No. 1:15-cv-10603 (D. Mass), for the sole purpose of administering the
settlement, including handling any individuals requesting exclusion or objectors, and conducting
a Final Fairness Hearing in accordance with the terms of this Agreement; and
h. ordering that the Haworth Matter should be transferred back to the United States
District Court for the Western District of Missouri in the event that the proposed settlement is not
finally approved as set forth in Paragraph D.7.
Oliveira Matter. The Parties agree to seek the Massachusetts Court’s preliminary
approval of the class and collective action settlement, including the Orientation, B/C Seat, A Seat
and Independent Contractor Classes. Named Plaintiff Oliveira will file a Motion for Preliminary
Approval of Settlement with the Massachusetts Court and a Motion to Consolidate for Settlement
Purposes Only, which is subject to review and approval by Defendant, which approval shall not
be unreasonably withheld. Named Plaintiff Oliveira will simultaneously submit a Proposed Order
Preliminarily Approving Settlement in substantially the same form as Exhibit E, and that Proposed
Order will include:
a. granting Preliminary Approval to the Settlement, adjudging the terms to be fair,
reasonable, and adequate, and directing consummation of its terms and provisions;

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b. certification of the Oliveira Matter case for settlement purposes only as a class
action under Federal Rule of Civil Procedure 23(b)(3) and as a collective action under 29 U.S.C.
§ 216(b) of the Fair Labor Standards Act;
c. designating Named Plaintiff Dominic Oliveira as a class representative;
d. appointing Fair Work, P.C. as Class Counsel pursuant to Rule 23(c)(1)(B) and (g);
e. acknowledging that the parties will request that the Haworth Matter be transferred
from the United States District Court for the Western District of Missouri to the United States
District Court for the District of Massachusetts and consolidated with the Oliviera Matter for
purposes of final settlement approval and ordering that, once the Haworth Matter is transferred,
the Oliveira Court shall accept transfer and preside over the consolidation of the cases and the final
settlement approval of the consolidated cases;
f. acknowledging that the United States District Court for the Western District of
Missouri has certified the B/C Seat Class as an FLSA collective action and Rule 23 class action
for settlement purposes, appointed Plaintiff Haworth as Class Representative for the B/C Seat
Class, and appointing the Crimmins Law Firm, LLC, Hodes Law Firm, LLC and Fair Work, P.C.
as Class Counsel for the B/C Seat Class pursuant to Rule 23(g);
g. acknowledging that the parties will ask the United States District Court for the
Western District of Missouri to preliminarily approve the settlement as to the B/C Seat Class
pursuant to 29 U.S.C. § 216(b) and Rule 23(g) and that the Oliviera Court’s preliminary approval
Order is contingent upon preliminary approval in the Haworth Matter as set forth in paragraph D.7
of the Agreement;
h. approving the Notice substantially in the form of Exhibits A-C for distribution to
all Putative Class/Collective Members, and finding that the Notice to be given constitutes the best

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notice practicable under the circumstances, including individual notice to all Class Members who
can be identified with reasonable effort, and constitutes valid, due and sufficient notice to Class
Members in full compliance with the requirements of applicable law, including the due process
clause of the United States Constitution;
i. directing the Settlement Administrator to distribute the Notice in the form approved
by the Court to Putative Class/Collective Members;
j. directing that each Putative Class Member who wishes to be excluded from the
Settlement Class must exclude himself or herself per the instructions set forth in the Notice;
k. directing that any Putative Class Member who has not properly and timely
requested exclusion from the Settlement Class shall be bound by the Settlement in the event the
Court issues a Final Order Approving Settlement;
l. scheduling of a Fairness Hearing to determine whether this Agreement should be
approved as fair, reasonable, and adequate and whether the proposed Final Order Approving
Settlement should be entered;
m. directing that Class Counsel and/or the Settlement Administrator tabulate
communications from Putative Class/Collective Members asking to be excluded from the
Settlement Class and shall report the names and addresses of such persons to the Court and to
Defendant no less than ten (10) days before the Fairness Hearing;
n. directing that Class Counsel file a Motion for Final Settlement Approval, including
a Fee and Expense Application and Class Representatives’ Service Award Application seven (7)
days prior to the Fairness Hearing (or by another date ordered by the Court), and that the Court
shall determine in the final settlement approval order in what amount attorneys’ fees and
reimbursement of costs and expenses, and service awards shall be awarded;

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o. directing that attached to the Motion for Final Settlement Approval shall be a list
of all Settlement Class Members who are members of the Independent Contractor Class who have
been determined, through the process set forth in Paragraph F.8.c, not to be entitled to a release
relating to all monies purportedly owed to Defendant (which list may be filed under seal, but any
individuals on that list shall be made aware that they are on the list pursuant to the notice
procedures set forth in paragraph F.8 of this Agreement);
p. directing that any Putative Class Member who wishes to object in any way to the
proposed Agreement must serve on the Settlement Administrator such written objections per the
instructions set forth in the Notice no later than sixty (60) days after mailing of the Notice, together
with copies of all papers in support of his or her position;
Objection to Settlement. Any Class Member who intends to object to the fairness
of the Agreement must, by the date specified in the Preliminary Order Approving Settlement
(which shall be sixty (60) days after the mailing of the Class Notice and no less than fifteen (15)
business days before the Fairness Hearing), serve any such objection on the Settlement
Administrator, who shall promptly forward to Class Counsel and Defendant’s Counsel. Any
objection to the Agreement must include: (i) the objector’s full name, address, email address, and
telephone number; (ii) the approximate dates during which the objector attended orientation or
drove with Defendant; (iii) a written statement of all grounds for the objection; (iv) copies of any
papers, briefs, or other documents upon which the objection is based (if applicable); (v) a statement
whether the objector intends to appear at the Fairness Hearing; and (vi) the objector’s signature. If
the objector intends to appear at the Fairness Hearing through counsel, the objection must also
state the identity of all attorneys representing the objector who will appear at the fairness hearing.
Any Class Member who does not serve on the Settlement Administrator a timely written objection

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to the settlement and notice of his or her intent to appear at the Fairness Hearing shall be foreclosed
from seeking any adjudication or review of the settlement by appeal or otherwise.
Request for Exclusion. Any Putative Class Member who wishes to be excluded
from the Settlement Class must submit a request for exclusion from the Settlement by the date
specified in the Preliminary Order Approving Settlement (which shall be sixty (60) days after the
mailing of the Notice and no less than fifteen (15) business days before the Fairness Hearing). To
be effective, the request for exclusion must be sent to the address specified in the Notice and must
include (i) the Putative Class Member’s full name, address, email address, and telephone number,
(ii) approximate dates during which the Putative Class Member attended orientation or drove with
Defendant; (iii) a statement that the Putative Class Member requests to be excluded from the
settlement and understands that he or she will not be eligible to recover any monies as part of the
settlement; and (iv) the Putative Class Member’s signature. Any Putative Class Member who fails
to submit a timely request to be excluded shall be subject to and bound by this Agreement and
every order or judgment entered pursuant to this Agreement.
Fairness Hearing. On the date set forth in the Preliminary Approval Order, the
Court will hold a final Fairness Hearing, at which time the Court will decide (either at the hearing
or by subsequent order) (1) whether to certify the Settlement Class, (2) whether to finally approve
the Settlement as fair, reasonable, and adequate, and (3) any petitions for attorneys’ fees, costs, or
service awards.
Final Approval: If the Agreement is finally approved by the Court, a Final
Approval Order shall be entered as follows:
a. directing the entry of judgment pursuant to Federal Rule of Civil Procedure 54(b)
and 29 U.S.C. § 216(b) et seq.;

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b. granting Plaintiffs’ Motion for Final Settlement Approval;
c. approving the Agreement and dismissing with prejudice all released claims;
d. declaring that the Agreement is binding on Defendant, the Class Representatives,
and all Participating Class Members who have not excluded themselves from the settlement;
e. dismissing without prejudice the claims of Putative Class/Collective Members who
have properly and timely excluded themselves in full accordance with the procedures set forth in
this Agreement; and,
f. indicating the amount of attorneys’ fees and expenses to be awarded to Class
Counsel and the amount of the Class Representatives’ service awards.
Effect of No Approval:
a. If either the Massachusetts or Missouri Court does not preliminarily approve this
Agreement, including the settlement approval process, the Parties agree to confer and work
cooperatively to take all reasonable steps to obtain final settlement approval.
b. If the Agreement is not finally approved by the Massachusetts Court (and except in
the event that the Court simply modifies or rejects the attorneys’ fees, Service Awards, and costs
requested pursuant to Paragraphs C.5, C.6, C.7), this Agreement will be null and void, and the
Oliveira Court shall transfer the Haworth action back to the United States District Court for the
Western District of Missouri. In the event that occurs, the Parties will bear equally any Settlement
Administration costs incurred up to that point. However, the Parties agree to confer and to work
cooperatively to take all reasonable steps to determine the best path to final approval of the
settlement and attempt to address any concerns that the Court may have with the proposed
settlement.

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E. Settlement Administrator. If both Courts grant preliminary approval of this Agreement,
the settlement will be administered by JND Legal Administration a third-party administrator
(“Settlement Administrator”). Fees and expenses of the Settlement Administrator shall be paid out
of the Non-Reversionary Settlement Fund.
F. Settlement Administration. The Parties agree to the following procedure for settlement
administration:
Class Contact Information. Within seven (7) business days after execution of this
Agreement and in no event later than the date of the preliminary approval hearing in Oliveira,
Defendant will provide the names, last known addresses, last known email addresses, and all last
known phone numbers for the class period to the Settlement Administrator and Settlement Class
Counsel (“Contact Information”), to the extent that information has not already been provided.
Class Data. Defendant’s Counsel shall produce data requested by Class Counsel
that is reasonably necessary for Class Counsel to perform the settlement calculations, with unique
identifiers for all Putative Class/Collective Members, as well as a list of the unique identifiers used
for all Named Plaintiffs and individuals who have opted in to the Oliveira Matter to date. The data
to be produced will be materially similar to the data initially produced, in terms of number of class
members, weeks worked, miles, earnings, etc. Named Plaintiffs/Class Counsel shall perform the
calculations for purposes of the amounts to be listed in class members’ notices, within one week
after receiving complete data. Class Counsel shall send the preliminary Settlement Allocations to
Defendant’s Counsel within seven (7) days of receiving the data from Defendant’s Counsel.
Defendant’s Counsel shall notify Class Counsel within three (3) business days of any disputes or
issues with the preliminary Settlement Allocations, which shall be resolved promptly.

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Immediately after resolution of any disputes or issues, the preliminary Settlement Allocations shall
be provided to the Settlement Administrator.
Notice Packet and Notice Website: The Notice of Settlement (“Notice Packet”)
shall consist of a Notice form, in either electronic (Exhibit A) or paper format (Exhibit B)
(“Notice”) and Claim/Consent to Join Form (Exhibit C)

and shall be issued in the form

substantially similar to that attached hereto and made a part of this Agreement as Exhibits A-C.
Additionally, pursuant to the drafting and approval procedures set forth in Paragraph F.4 below,
the Settlement Administrator shall create a website that contains the contents of the Notice Packet
and gives Putative Class/Collective Members the opportunity to submit a Claim/Consent to Join
Form online. (“Notice Website”). Putative Class/Collective Members for whom Prime has
provided email addresses shall receive the Notice Packet via email. For Putative Class/Collective
Members for whom Defendant has not provided email addresses and/or for whom the email
addresses are undeliverable, the Notice Packet shall be provided by First-Class Mail.
a. The Notice Packet shall (1) include information about the different categories of
funds, (2) inform Putative Class/Collective Members of their right to do nothing, submit a
Claim/Consent to Join Form, exclude themselves from, or object to the settlement, (3) inform
Putative Class/Collective Members that they are subject to a release of state and federal unpaid
wage claims, contract and quasi-contract claims, and any other claims related to unpaid wages or
compensation that were or could have been brought in the Litigation, if they do not exclude
themselves from the settlement, (4) inform Putative Class/Collective Members of the nonmonetary release described in Paragraphs G.4-5 and provide them with information about the
potential tax consequences; and (5) list the Minimum Allocation that the individual would receive
from the settlement and advise them of their right to claim a larger portion of the Settlement Fund.

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The Notice Packet shall advise Putative Class/Collective Members how to submit the
Claim/Consent to Join Form, including that it may be completed electronically or sent in by mail,
email, or facsimile and shall also include the address of the Notice website. The Notice Packet
shall also advise Putative Class/Collective Members of how they can request exclusion from or
object to the settlement.
b. The Claim/Consent to Join Form shall request the Putative Class/Collective
Member’s address, and shall request (but not require) identifying information such as date of birth,
last four digits of Social Security Number or Tax Identification Number. In the event that the date
of birth, last four digits of the Social Security Number, or tax ID number are not included and are
necessary to identify the Putative Class/Collective Member, the settlement administrator shall
follow up with the Putative Class/Collective Member to obtain such information (but the lack of
that information shall not render the claim form invalid).
c. The Notice Packet shall be made available to Putative Class/Collective Members
in English and Spanish and in up to three other languages common to members of the class, as
determined by Named Plaintiffs/Class Counsel.
Draft Notice Materials: Within three weeks of receipt of the Contact Information
and Settlement Allocations, the Settlement Administrator shall create a Notice Packet for each
Putative Class Member, consistent with Paragraph F.3, as well as a draft of the Notice website,
consistent with Paragraph F.3. Each Putative Class Member’s Notice Packet shall include the
unique identifier referenced in paragraph F.2, supra, on both the Notice and the Claim/Consent to
Join Form. Copies of said Notice Packets, as well as a draft copy of the Notice website, will be
delivered to the Parties’ counsel via email in pdf format and via a link to the draft website for
review and approval, which shall not be unreasonably withheld. The Parties’ counsel shall have

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seven (7) business days to advise the Settlement Administrator of any changes or corrections to
the Notice Packets, or Notice website, or approve the same. In the event non-substantive changes
to any of the Notice Packets, or website, are requested by the Settlement Administrator or the
Parties, and provided the changes are consistent with this Agreement, the Parties may edit and
shall endeavor to promptly finalize the Notice Packets and website.
Issuance of Notice:
a. Within three weeks of approval of the Notice Materials by the Parties, as is set forth
in Paragraph F.4, the Settlement Administrator shall issue the Notice Packets and publish the
Notice website. The Notice packets shall be delivered to Putative Class/Collective Members via
email.
b. For Putative Class/Collective Members whose email bounces back, the Notice
Packet shall also be sent by first-class mail (to the last known address and/or the address discovered
using skip tracing), along with a postage pre-paid envelope. The Settlement Administrator will
make reasonable efforts to obtain valid current addresses for Putative Class/Collective Members
through the National Change of Address database, or other similar database, prior to mailing the
initial Notice Packets. If any initial Notice Packet to Putative Class/Collective Members is
returned via the U.S. Postal Service as undeliverable, the Settlement Administrator shall make
reasonable efforts to obtain valid, current addresses for the Putative Class/Collective Members and
the Notice Packet will be promptly re-mailed to the updated address. If, an alternate mailing
address cannot be located, or if after an email, and a second mailing of the Notice Packet, the
Notice Packet is returned by the U.S. Postal Service as undeliverable, the Parties shall be deemed
to have satisfied their obligation to provide the applicable notice to that Class Member.

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c. When Notice Packets are resent to Putative Class/Collective Members, the Putative
Class/Collective Members shall be given at least thirty (30) days from the date on which the Notice
Packets are resent to timely submit a Claim/Consent to Join Form.
d. A reminder email or postcard shall go out to Putative Class/Collective Members
who have not claimed halfway through the claim period. The reminder shall go out by email only
to drivers with email addresses from which the Settlement Administrator did not receive a bounceback. For those for whom emails bounce back, the reminder shall be sent as a postcard by firstclass mail. The reminder shall include the address of the website, as well as contact information
for the Settlement Administrator and Named Plaintiffs/Class Counsel. The Settlement
Administration shall notify the Parties’ counsel upon the emailing of the Notice Packets and
reminder emails/postcards.
Claim Deadline. Putative Class/Collective Members shall have sixty (60) days
from emailing of the Notice Packets to submit the Claim/Consent to Join Form. (“Claim
Deadline”). Claim/Consent to Join Forms may be submitted electronically or sent by mail, email,
or facsimile. Putative Class/Collective Members shall be permitted to use any form of the
Claim/Consent to Join Form to submit a valid claim (not just the form sent to them specifically).
The Parties may jointly agree in writing to extend the Claim Deadline for one or more Putative
Class/Collective Members. All Putative Class/Collective Members who do not request exclusion
from the settlement will receive a minimum payment regardless of whether they submit a
Claim/Consent to Join Form. Putative Class/ Collective Members who submit a Claim/Consent
to Join Form will receive payment according to the formula set forth in Paragraph C.2.b.vi. Class
Counsel will file with the Court all submitted Claim/Consent to Join Forms, after redaction of any
personal identifying information that may appear on the forms.

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Settlement Administration Updates. The Settlement Administrator will provide
regular updates about the Settlement Administration process to the Parties’ Counsel and/or the
Court as may be appropriate in connection with Final Fairness Hearing. The Settlement
Administrator will also provide copies of all completed Claim/Consent to Join Forms to the Parties
on at least a bi-weekly basis.
Communications with Putative Class/Collective Members and Dispute
Resolution Process:
a. If the Settlement Administrator receives inquiries from any Putative
Class/Collective Members who disagrees with, or has concerns about, his or her Settlement
Allocation, the Settlement Administrator shall promptly provide this information to Named
Plaintiffs/Class Counsel who shall make an initial determination about whether there is an issue
that should be resolved via the Dispute Fund. After making an initial determination that an issue
should be resolved out of the Dispute Fund, Named Plaintiffs/Class Counsel shall seek approval
of the proposed allocation from the Dispute Fund from Defendant’s Counsel, which approval shall
not be unreasonably withheld.
b. If the Settlement Administrator receives a late Claim/Consent to Join Form from
any Putative Class Member, the Settlement Administrator shall promptly provide this information
to Named Plaintiffs/Class Counsel who shall make an initial determination about whether the late
Consent to Join/Claim Form should be resolved via the Dispute Fund. After making an initial
determination that an issue should be resolved out of the Dispute Fund, Named Plaintiffs/Class
Counsel shall seek approval on the proposed allocation from the Dispute Fund from Defendant’s
Counsel, which approval shall not be unreasonably withheld.

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c. Within fourteen (14) days of Defendant being provided completed Claim/Consent
to Join Forms pursuant to Paragraph F.6 for any Putative Class/Collective Member who is an
Independent Contractor Class Member, Defendant will advise the Settlement Administrator and
Named Plaintiffs/Class Counsel if Defendant believes that the Claiming Class Member destroyed,
damaged or stole Prime property, and provide sufficient detail regarding the alleged damage or
theft such that the Settlement Administrator and/or Named Plaintiffs/Class Counsel can investigate
and communicate with the Claiming Class Member about (1) a possible cure (i.e., return and/or
repair of Prime property), in which case the Claiming Class Member shall be entitled to the release
under this section; and/or (2) any dispute regarding Prime’s claim that the Claiming Class Member
has destroyed, damaged or stolen Prime property.
d. After the Settlement Administrator and/or Named Plaintiffs/Class Counsel has
conferred with the Claiming Class Member, Named Plaintiffs/Class Counsel will confer with
Defendant’s Counsel about whether a dispute exists regarding the alleged damage or theft and/or
whether a cure can be implemented. If the Parties cannot resolve the disputes among themselves,
the Settlement Administrator shall make a determination. If the dispute cannot be resolved by the
Settlement Administrator, it shall be resolved by binding arbitration before D. Charles Stohler,
Esq. Mr. Stohler’s fees shall be paid out of the Dispute Fund. If a dispute is resolved in whole or
in part in favor of the Independent Contractor Class Member, then Defendant shall release
entitlement to monies as to such Independent Contractor Class Member (in whole or in part,
depending on the resolution of the dispute).
e. The Settlement Administrator shall keep a list of these individuals’ names and the
outcome of the dispute, including specifically identifying who is entitled to the release set forth in

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Paragraph G.5 and who is not entitled to the release set forth in Paragraph G.5. This list shall be
provided to the Court in connection with final approval of the settlement.
Qualified Settlement Fund: The settlement administrator shall be responsible for
establishing a Qualified Settlement Fund. Defendant shall deposit $21,000,000 of the Settlement
Fund into a Qualified Settlement Fund established by the Settlement Administrator within sixty
(60) days after an order granting preliminary approval by the United States District Court for the
District of Massachusetts. Defendant shall deposit the remaining amounts owed, if any, based upon
claims made, within 30 days after the close of the claim period.
Final Settlement Allocations: Within ten (10) business days after the Effective
Date, Named Plaintiffs/Class Counsel, in connection with the Settlement Administrator, shall
review any remaining non-reversionary funds and calculate the allocation portion of those funds
for each Class Member in accordance with the formula set forth in Paragraph C. The Settlement
Administrator and/or Named Plaintiffs/Class Counsel will share these final calculations with
Defendant’s Counsel who shall have five (5) business days to provide any objections to the final
allocations.
Settlement Payments.
a. Settlement Checks. The Settlement Administrator shall issue payment from the
Settlement Fund to Class Counsel for the Court-approved attorneys’ fees and costs, to the Named
Plaintiffs for the Court-approved service awards, and for the final settlement allocations to
Participating Class Members within thirty (30) days after the Effective Date. The payments may
be made via check.
b. Reissuing of Payments. If any settlement checks are returned as undeliverable, the
Settlement Administrator shall promptly attempt to locate the person (including using the Social

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Security Number of that Participating Class Member). Upon request by a Participating Class
Member, the Settlement Administrator will promptly reissue checks that were mailed but not
cashed by the Participating Class Member, during the 180-day time period to deposit/cash checks
from the settlement. Any settlement check that remains undeliverable or is not cashed after the 180
days following its issuance shall be cancelled and voided, and the Settlement Administrator shall
deliver any uncashed or uncollected but claimed funds to the appropriate state Unclaimed Property
Division. Within ten (10) business days of the transfer of any unclaimed funds of Participating
Class Members to an Unclaimed Property Fund, the Settlement Administrator will notify
Defendant and Class Counsel, identifying the Participating Class Members who did not cash or
collect their Settlement Allocation checks, along with the amount of unclaimed funds remitted and
identification of the specific state Unclaimed Property Fund to which the funds were remitted.
c. Unclaimed reversionary funds shall be returned to Defendant within sixty (60) days
after Class Members’ checks are issued.
G. Release.
Upon the Effective Date, and in consideration for the service awards, Named
Plaintiffs and Defendant hereby release each other from any and all legal, equitable or other claims,
counterclaims, actions, causes of action or damages, and any past, present or future duties,
responsibility, or obligations, known or unknown, existing at any time prior to May 8, 2020,
including but not limited to any claims or counterclaims that were or could have been filed in the
Litigation.
Upon the Effective Date, the release of claims of Participating Class Members shall
become effective to the fullest extent allowed by law. Participating Class Members will release
all federal and state unpaid wage claims, contract and quasi-contract claims, and any other claims

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related to unpaid wages or compensation that were or could have been brought against Prime (or
its subsidiaries and affiliates) in the Oliveira and/or Haworth cases to the fullest extent allowed by
law. This release will be limited to claims that arose in the course of the Participating Class
Members’ relationship with Defendant at any time prior to this Agreement through May 8, 2020.
The Claim/Consent to Join form will advise Class Members of this release.
Furthermore, within thirty (30) days of the Effective Date, Minimum Participation Class Members
will be sent their minimum allocation check, as set forth in Paragraph C.2.b.vi. Checks issued
pursuant to this Paragraph will further contain release language on the back of the check in
substantially the same form as the following “By endorsing this check, I agree to be bound by the
Oliveira and Haworth settlement and release all federal and state unpaid wages claims, contract
and quasi-contract claims, and any other claims related to unpaid wages or compensation that were
or could have been brought in the Oliveira and/or Haworth cases against New Prime and its
subsidiaries and/or affiliates.”
Upon the Effective Date, Defendant shall release entitlement to and shall not pursue
(and/or shall discontinue) any collection efforts relating to all monies purportedly owed to
Defendant by Named Plaintiffs or Participating Class Members who are members of the
Orientation, A or B/C Seat Classes and, either currently or at the time of their departure from
Prime, were in orientation, a B/C seat position, or an A seat company position. This includes
Defendant taking all action to cease any collection of these monies by third party collection
agencies and/or any collection of these monies through deductions from drivers’ pay (for work for
Defendant or for any other entities).
Upon the Effective Date, Defendant shall release entitlement to and shall not pursue
(and/or shall discontinue) any collection efforts relating to all monies purportedly owed to

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Defendant by Claiming Class Members who are members of the Independent Contractor Class,
file a Claim/Consent to Join Form, and were in an independent contractor driving position either
currently or at the time of their departure from Prime, unless the individual Claiming Class
Member participated in the dispute resolution process and, through that process, it was determined
that Prime retains its rights to pursue some or all monies and property owed. The individuals for
whom Prime is not releasing entitlement to monies purportedly owed shall be included as an
attachment to the Motion for Final Settlement Approval.
It is the intention of the Parties and their Counsel that these releases be fully
enforceable in accordance with this Agreement.
Putative Class/ Collective Members who request exclusion from the settlement will
not release any federal or state wage and hour claims, if any.
H. Representations: In furtherance of Paragraphs G.4 and G.5, Prime further represents that
(1) it is not an “applicable entity” pursuant to 26 U.S.C. § 6050P(c) and 26 C.F.R. §§ 1.60P1(b)(2)(i)(E) and 1.605P-2(c) because it is not a financial institution and/or a direct or indirect
subsidiary of a financial institution and lending money is not a significant part of its business and
(2) its agreement to release drivers from the monies described in Paragraphs G.4 and G.5 is not an
“identifiable event” triggering reporting requirements because the Parties’ agreement in
Paragraphs G.4 and G.5 is not a discharge of debt but instead is an agreement not to enforce certain
contractual provisions. Moreover, the parties agree and acknowledge that the Named Plaintiffs, on
behalf of the putative class and collective, dispute the validity and enforceability, as well as the
amount of, any debts or monies purportedly owed to Prime.

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I. Other Non-Monetary Relief.
Credit Reporting by Defendant. After final approval of this Agreement, Defendant
will use its best efforts to request that the national credit reporting agencies (Experian, Equifax
and TransUnion) delete any reporting of the trade line(s) with respect to Participating Class
Members’ drivers’ accounts with Prime in connection with the release pursuant to Paragraphs G.4
and G.5.
Hire Right Reporting. If a driver requests by letter to HireRight that records of a
default to Prime and/or related entities be corrected in accordance with the release of Prime’s
entitlement to monies, and to the fullest extent permitted by law, Prime agrees to provide a timely
letter to HireRight with a copy to the requesting driver that any defaults owing to Prime and/or
related entities (as described in Paragraphs G.4 and G.5) have been rescinded by mutual agreement.
Driver References. Prime and related entities shall give no new or additional
negative references to any driver for having allegedly defaulted on any amounts released pursuant
to Paragraphs G.4 and G.5.
J. Tax Treatment.
For tax purposes, one-half of each Participating Class Member’s Settlement
Allocation shall be deemed payment of alleged unpaid wages, subject to all legally required
garnishments, liens, wage withholding orders, regular withholding, and similar obligations, and
reported on an IRS Form W-2. The remaining one-half of the settlement amount shall be deemed
compensation for interest, penalties, and liquidated damages, shall not be subject to payroll
withholdings, and shall be reported on an IRS Form 1099.
Attorneys’ fees and costs paid pursuant to Paragraph C.5 shall be paid without
withholding and shall be reported to the IRS and Class Counsel on an IRS Form 1099 under Class

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Counsel’s names and taxpayer identification numbers, which Class Counsel shall provide for this
purpose.
Prime shall not issue 1099 forms or other tax forms to the drivers for the releases
provided above in Paragraphs G.4 and G.5 because no compensatory payment will issue. This
provision shall be enforceable to the fullest extent allowable by law.
Defendant will bear the employer’s share of payroll taxes separately from the
Settlement Fund.
Each side shall bear the liability as to their share of any taxes owed, and the parties
shall not be responsible or liable for taxes owed by other parties.
K. Service or Notice. Whenever, under the terms of this Agreement, a person is required to
provide service or written notice to Defendant, Defendant’s Counsel or Class Counsel, such service
or notice shall be directed to the individuals and addresses specified below:
As to Class Counsel or Plaintiffs:
Hillary Schwab
FAIR WORK, P.C.
192 South Street, Suite 450
Boston, MA 02111
(617) 607-3261 Telephone
(617) 488-2261 Facsimile
hillary@fairworklaw.com
Virginia Stevens Crimmins
Matthew Crimmins
CRIMMINS LAW FIRM LLC
214 S. Spring Street
Independence, MO 64050
(816) 974-7220 Telephone
(855) 974-7020 Facsimile
v.crimmins@crimminslawfirm.com
m.crimmins@crimminslawfirm.com
Garrett M. Hodes
HODES LAW FIRM, LLC
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900 Westport Rd., 2nd Floor
Kansas City, MO 64111
(816) 931-1718 Telephone
(816) 994-6276 Facsimile
garrett@hodeslawfirm.com
As to Defendant:
Michele L. Maryott
GIBSON, DUNN & CRUTCHER LLP
3161 Michelson Drive
Irvine, CA 92612
(949) 451-3945 Telephone
(949) 475-4668 Facsimile
mmaryott@gibsondunn.com
Amanda C. Machin
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW, Suite 300
Washington, DC 20036
(202) 887-3705 Telephone
(202) 530-4244 Facsimile
amachin@gibsondunn.com
L. No Admission of Liability. By entering into this Agreement, Defendant admits no liability
of any kind, and Defendant expressly denies any liability or wrongdoing. Accordingly, the Parties
agree that none of them has prevailed, nor shall this Agreement be construed as evidence that any
party has prevailed in this matter or that any alleged damages exist. This Agreement shall not be
admissible in any court or other proceeding except as necessary in connection with a claim of
breach of this Agreement or an effort to enforce this Agreement.
M. Choice of Law. The enforcement of this Agreement shall be governed and interpreted by
and under the laws of the Commonwealth of Massachusetts whether or not any party is or may
hereafter be a resident of another state.
N. Extension of Time. The Parties may agree upon a reasonable extension of time for
deadlines and dates reflected in this Agreement, without further notice to the Court, subject to
Court approval as to Court dates.
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O. No Waivers, Modifications, Amendments. This Agreement constitutes the entire
agreement of the Parties concerning the subjects contained herein, and all prior and
contemporaneous negotiations and understandings between the Parties shall be deemed merged
into this Agreement. No waiver, modification, or amendment of the terms of this Agreement,
whether purportedly made before or after the Court’s approval of this Agreement, shall be valid or
binding unless in writing, signed by or on behalf of all Parties and then only to the extent set forth
in such written waiver, modification or amendment, subject to any required Court approval. Any
failure by any party to insist upon the strict performance by the other party of any of the provisions
of this Agreement shall not be deemed a waiver of any of the other provisions of this Agreement,
and such party, notwithstanding such failure, shall have the right thereafter to insist upon the
specific performance of any and all of the provisions of this Agreement.
P. Court Retains Jurisdiction To Enforce Agreement. The United States District Court for
the District of Massachusetts shall retain jurisdiction with respect to the implementation and
enforcement of the terms of the Agreement, to the extent permitted by law, and all Parties hereto
submit to the jurisdiction of the Court for purposes of implementing and enforcing the settlement
embodied in the Agreement.
Q. Agreement to Cooperate. The Parties acknowledge that it is their intent to consummate
this settlement, and they agree to cooperate to the extent necessary to effectuate and implement all
terms and conditions of this Agreement and to exercise their best efforts to accomplish the
foregoing terms and conditions of this Agreement.
R. Counterparts. The Parties may execute this Agreement in counterparts, and execution in
counterparts shall have the same force and effect as if the Class Representatives and Defendant
had signed the same instrument. Any signature made electronically and/or transmitted by facsimile

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for the purpose of executing this Agreement shall be deemed an original signature for purposes of
this Agreement and shall be binding upon the signing party.
S. Corporate Signatories. Each party executing this Agreement or any of its exhibits on
behalf of any party hereto warrants that such person has the authority to do so. Any person
executing this Agreement or any such related documents on behalf of a corporate signatory hereby
warrants and promises for the benefit of all Parties hereto that such person is duly authorized by
such corporation to execute this Agreement or any such related documents.
T. Captions. The captions or headings of the Paragraphs in this Agreement are inserted for
convenience or reference only and shall have no effect upon the construction of interpretation of
any part of this Agreement.

Named Plaintiff

New Prime, Inc.

By:
Name: Dominic Oliveira

By:
Name:
Title:

Date:

7/20/2020

Date:

Named Plaintiff

By:
Name: Rocky Haworth
Date:

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for the purpose of executing this Agreement shall be deemed an original signature for purposes of
this Agreement and shall be binding upon the signing party.
S. Corporate Signatories. Each party executing this Agreement or any of its exhibits on
behalf of any party hereto warrants that such person has the authority to do so. Any person
executing this Agreement or any such related documents on behalf of a corporate signatory hereby
warrants and promises for the benefit of all Parties hereto that such person is duly authorized by
such corporation to execute this Agreement or any such related documents.
T. Captions. The captions or headings of the Paragraphs in this Agreement are inserted for
convenience or reference only and shall have no effect upon the construction of interpretation of
any part of this Agreement.

Named Plaintiff

New Prime, Inc.

By:
Name: Dominic Oliveira

By:
Name:
Title:

Date:
Date:

Named Plaintiff

By:
Name: Rocky Haworth
Date: Jul 20 2020

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for the purpose of executing this Agreement shall be deemed an original signature for purposes of

this Agreement and shall be binding upon the signing party.

S. Corporate Signatories. Each party executing this Agreement or any of its exhibits on

behalf of any party hereto warrants that such person has the authority to do so. Any person

executing this Agreement or any such related documents on behalf of a corporate signatory hereby

warrants and promises for the bene?t of all Parties hereto that such person is duly authorized by

such corporation to execute this Agreement or any such related documents.

T. Captions. The captions or headings of the Paragraphs in this Agreement are inserted for

convenience or reference only and shall have no effect upon the construction of interpretation of

any part of this Agreement.

Named Plaintiff

By:

 

Name: Dominic Oliveira

Date:

 

Named Plaintiff

By:

 

Name: Rocky Haworth

Date:

 

New Prime, Inc.

 

 

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Exhibit A

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NOTICE OF SETTLEMENT

YOU ARE RECEIVING THIS NOTICE BECAUSE YOU ARE
ENTITLED TO MONEY FROM A SETTLEMENT WITH NEW PRIME, INC.

YOU MUST TAKE ACTION BY [INSERT DATE] TO RECEIVE YOUR
MAXIMUM SHARE

This Notice affects your rights. Please read it carefully.
AVISO IMPORTANTE A MIEMBROS POTENCIALES DEL COLLECTIVO – Para español, haga clic aqui.

This is not a solicitation from a lawyer. The United States District Courts (the “Courts”)
for the District of Massachusetts and the Western District of Missouri authorized this Notice.
TO:

«First_Name» «Last_Name»
<<Class Settlement Driver Code >>

RE:

Settlement of Claims for Alleged Unpaid Wages and All Related Claims for Relief

•

A settlement has been reached between Dominic Oliveira and Rocky Haworth (“Class
Representatives”) and New Prime, Inc. (“Prime”) regarding Plaintiffs’ claims that Prime improperly
paid drivers, in violation of the Fair Labor Standards Act (“FLSA”), Missouri Minimum Wage Law
(“MMWL”) and related laws.

•

For settlement purposes, the Courts have preliminarily certified a class and collective action of all
individuals who have attended training to become truck drivers for Prime and/or have driven for Prime
as employee drivers and/or as independent contractor drivers who have leased their trucks through
Prime at any time since October 2, 2012 through May 8, 2020, and all individuals who have otherwise
attended training in Missouri to become truck drivers for Prime at any time since March 4, 2010 through
May 8, 2020, except for the named plaintiffs in Montgomery v. New Prime, Inc., 8:17-00321(C.D. Cal.).

•

You are receiving this Notice because you have been identified as a Class Member. This Notice is to
inform you about the settlement and your rights related to the same.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
JOIN THE
SETTLEMENT AND
RECEIVE YOUR
MAXIMUM SHARE

If you wish to receive your maximum share of the settlement, you must fill out
and return or submit online the attached Claim/Consent to Join Form no later than
[insert date 60 days]. By doing so, you will receive a minimum settlement
payment of <<Settlement_Amount>>, which has been calculated as described in
Section 3 below.

DO NOTHING

If you choose to do nothing, you will be eligible to receive a minimum settlement
payment, described below.

EXCLUDE
YOURSELF FROM
THE SETTLEMENT

If you choose to exclude yourself from the settlement by [insert date], you will
not receive any payment and will not be considered a part of this settlement.

OBJECT TO THE
SETTLEMENT

Write to the Court about why you do not like the settlement.

For more information about the settlement, please visit the website: [insert website address].

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1. What is this litigation about?
Plaintiff Dominic Oliveira filed a lawsuit in United States District Court for the District of
Massachusetts on March 4, 2015 on behalf of himself and other similarly situated trainees and drivers
for Prime in a case entitled Oliveira v. New Prime, Inc., Case No. 1:15-CV-10603. This lawsuit
alleged violations of the FLSA and state wage and hour laws. Specifically, the lawsuit alleged that
Prime failed to properly pay trainees during orientation at Prime, and that Prime’s pay practices with
respect to employee drivers and independent contractors violated federal and state wage and hour
laws. Plaintiff Rocky Haworth filed a lawsuit in the United States District Court for the Western
District of Missouri on January 22, 2019 on behalf of himself and other similarly situated B and C
seat drivers employed at Prime in a case entitled Haworth v. New Prime, Inc., Case No. 6:190-CV003025-RK. This lawsuit alleged that Prime’s compensation of B and C seat drivers violated the
FLSA and Missouri wage laws. Prime denied and continues to deny the allegations in these cases.
However, Prime wishes to settle these cases to avoid continued costly and time-consuming litigation.
2. Who is included in the Settlement Class?
The following class and collective action has been certified for settlement purposes: all individuals
who have attended training to become truck drivers for Prime and/or have driven for Prime as
employee drivers and/or as independent contractor drivers who have leased their trucks through Prime
at any time from October 2, 2012, to May 8, 2020, and all individuals who have otherwise attended
training in Missouri to become truck drivers for Prime at any time from March 4, 2010, to May 8,
2020 (the “Class Period”), except for the named plaintiffs in Montgomery v. New Prime, Inc., 8:1700321 (C.D. Cal.).
3. What are the Benefits and Terms of the Settlement?
To settle this case, Prime has agreed to pay a total of up to $28,000,000.00 (the “Settlement Fund”),
inclusive of all alleged unpaid wages, liquidated damages, penalties, interest, costs, and attorneys’
fees.
If the Court approves the settlement, you are eligible to receive a portion of the Settlement Fund, after
payment of attorneys’ fees and costs and Service Awards to the Class Representatives. If the Court
approves the settlement and you do nothing, you shall receive a minimum payment of $100, less
applicable tax withholdings, in exchange for releasing your claims (See Section 6). If the Court
approves the settlement and you file a Claim/Consent to Join Form, you will be entitled to receive an
additional amount. The parties have endeavored to divide the Settlement Fund in a fair way. The
Settlement Fund will be allocated in the following ways:
•
•
•
•

Orientation Class Fund: Individual allocations of this fund will be based on the type of training
or orientation you attended and the location where you attended it.
B/C Seat Class Fund: Individual allocations of this fund will be based on: the miles driven in B
or C seat status, compared to the gross earnings during that time.
A Seat Class Fund: Individual allocations of this fund will be based on: the miles driven in A
seat status as an employee driver (also known as “company driver”), compared to the gross
earnings during that time.
Independent Contractor Class Fund: Individual allocations of this fund will be based on: the
miles driven in A seat status as an independent contractor, compared to 65% of the gross revenues
earned during that time.

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Additionally, individuals who have already received monies as part of another class action settlement
in California against New Prime, Inc. will receive a 50% share from this settlement. Under these
formulas, if the settlement is approved by the Court and you join the settlement, you will receive a
settlement payment no less than the estimated gross amount of «Settlement_Amount». You may
also be eligible to be paid additional amounts from the settlement depending on how many individuals
submit forms to participate in the settlement.
One-half of each Settlement Class Member’s settlement payment is considered wages and shall be
subject to the withholding of all applicable local, state, and federal taxes, and reported on an IRS
Form W-2. The remaining one-half of the settlement payment is considered compensation for interest,
penalties and liquidated damages, and will not be subject to payroll withholdings, and will be reported
on an IRS Form 1099. Please consult with your accountant or other tax advisor regarding the tax
consequences of the settlement, including the non-monetary relief provided pursuant to the
settlement, which is described below.
In addition to the monetary relief above, as a part of the settlement, if approved, Prime has agreed
(1) to release entitlement to and not pursue any collection efforts relating to all monies purportedly
owed to Prime by Class Members who either currently or at the time of their departure from Prime
were in orientation, a B/C seat position, or an A seat company position; (2) to release entitlement to
and not pursue any collection efforts related to all monies purportedly owed to Prime by Class
Members who file a Claim/Consent to Join form and who either currently or at the time of their
departure from Prime were in an independent contractor driving position (with the exception of
certain independent contractors who may have destroyed, damaged or stolen Prime property); (3) to
use best efforts to request that the national credit reporting agencies (Experian, Equifax and
TranUnion) delete any reporting of drivers’ accounts with Prime in connection with any monies
released as described above; and (4) upon a driver’s request to HireRight, provide a time letter to
HireRight with a copy to the requesting driver that any defaults owing to Prime and/or related entities
have been rescinded by mutual agreement. For more information about this additional relief and the
extent to which it applies to you, please visit [INSERT WEBSITE] or contact the Settlement
Administrator (contact information in Section 10, below).
4. Who is Class Counsel?
The Court has appointed Hillary Schwab and Rachel Smit of Fair Work, P.C. of Boston,
Massachusetts as Class Counsel to represent the Settlement Class and Virginia Stevens Crimmins,
and Matthew R. Crimmins of the Crimmins Law Firm LLC of Independence, Missouri, Garrett M.
Hodes of the Hodes Law Firm, LLC of Kansas City, Missouri, and Ms. Schwab as Class Counsel to
represent members of the Settlement Class relating to claims for unpaid wages while driving as B
and/or C seat drivers. The contact information for Class Counsel is listed below in Section 10.
5. How much are Attorneys’ Fees, Expenses and Service Awards to Class Representatives?
Class Counsel pursued these cases on a contingent fee basis and has not received any payment of fees
or reimbursement of their out-of-pocket expenses related to litigation or recovery on behalf of the
Class. As part of the settlement, subject to approval, Class Counsel will apply for attorneys’ fees in
an amount not to exceed $9,240,000.00, which is 33% of the Settlement Fund. Additionally, Class
Counsel will apply for reimbursement of litigation costs (including the costs of having a Settlement
Administrator administer this settlement) in an amount not to exceed $225,000.00. The payment for
attorneys’ fees and litigation costs to Class Counsel will be recovered from the Settlement Fund.
Participating Class Members will not be required to make any payments to Class Counsel for
attorneys’ fees or other litigation costs from their individual settlement amounts. Class Counsel will

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also ask the Court to approve Service Awards to the Class Representatives in an amount not to exceed
$50,000.00 to Mr. Oliveira and $25,000.00 to Mr. Haworth.
6. What happens if the Court Approves the Settlement?
If the Court approves the proposed Settlement, these cases will be dismissed with prejudice on the
merits as to all Class Members who do not exclude themselves the settlement. This means that Class
Members who do not exclude themselves will be barred from bringing their own lawsuits for recovery
against Prime to the fullest extent allowed by law. Specifically, Class Members who do not exclude
themselves from the Settlement and/or who endorse their respective settlement check(s), will release
all federal and state wage and hour claims, contract and quasi-contract claims, and any other claims
that relate to unpaid wages or compensation that arose in the course of such Class Member’s attending
training to become a truck driver for Prime from March 4, 2010 to May 8, 2020 and/or driving for
Prime either as an employee driver, and/or as an independent contractor driver who has leased their
trucks through Prime, at any time from October 2, 2012 to May 8, 2020 to the fullest extent allowed
by law.
Class Members who validly and timely request exclusion from the Settlement will not be entitled to
receive money or other relief as part of this settlement and will not release any claims.
7. What happens if the Court does not approve the Settlement?
If the Court does not approve the proposed settlement, the case will proceed as if no settlement has
been attempted, and there can be no assurance that the class will recover more than is provided for in
this Settlement, or indeed, anything.
8. When is the Fairness Hearing?
A hearing will be held before the Honorable Patti B. Saris, Chief Judge, in the United States District
Court for the District of Massachusetts on [INSERT DATE] at 1 Courthouse Way - Suite 2300,
Boston, MA 02210. The purpose of the hearing is for the Court to decide whether the proposed
settlement is fair, reasonable, and adequate as to the Class and should be approved and, if so, to
determine what amount of attorneys’ fees and expenses should be awarded to Class Counsel and what
amount should be awarded as a Service Award to the Class Representatives. The time and date of this
hearing may be changed without further notice. To confirm that the hearing is going forward on the
scheduled date and time and/or to inquire about appearing at the hearing by telephone rather than in
person, please contact the Settlement Administrator or Class Counsel (contact information in Section
10, below).
9. What are my options regarding the Settlement?
If you are receiving this Notice, you have the following options:
a.
Do Nothing: If you choose to do nothing, you will receive the minimum settlement
payment of $100.00, and you will release your wage claims against Prime (and its subsidiaries and
affiliates) as described herein.
b.
Join the Settlement and Receive your Maximum Settlement Share: If you wish to
join the settlement and receive your maximum share, you must return a Claim/Consent to Join Form
no later than [insert date 60 days from mailing].

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CLICK HERE TO JOIN THE
SETTLEMENT
You may submit your Form by visiting the Administrator’s website at [insert Administrator’s
website]. You may also submit your Form to the Administrator via mail, email, or facsimile at the
following address: [Administrator Contact Information]. If you received this Notice via U.S. Mail,
an addressed and postage paid envelope is enclosed for your convenience. Your signed Form must
be submitted electronically or by facsimile or postmarked by [insert date 60 days].
c.
Request Exclusion from the Settlement: If you wish to be excluded from the
settlement, you must request exclusion no later than [insert date 60 days]. Your request for exclusion
from the settlement must contain the following information: (1) your full name, address, email
address, and telephone number; (2) the approximate dates of your relationship with Prime; (3) a
statement that you request to be excluded from the settlement and understand that you will not be
eligible to recover any monies as part of the settlement; and (4) your signature. You may submit a
request for exclusion by mail, email, or facsimile at the following address: [Administrator Contact
Information]. If you exclude yourself from the settlement, you will not receive any monies from
the settlement.
d.
Object to the Settlement: If you are a Class Member and you do not request to be
excluded, you may object to the terms of the settlement and/or to the Class Counsel’s request for
attorneys’ fees and expenses, and/or to the Service Awards for the Class Representatives. If you object
and the settlement is approved, you will be barred from bringing your own individual lawsuit asserting
claims related to the matters referred to in the Litigation, and you will be bound by the final judgment
and release and all Orders entered by the Court. You may, but need not, enter an appearance through
counsel of your choice. If you do, you will be responsible for your own attorneys’ fees and costs.
If you object to the settlement and/or to the Class Counsels’ request for attorneys’ fees and
expenses, and/or to the Service Awards for the Class Representatives, you must, on or before
[INSERT 60 days]: (1) file with the Clerk of the United States District Court for the District of
Massachusetts, and (2) serve upon the Settlement Administrator at [Administrator Contact
Information], a written objection including: (a) your full name, address, email address, and telephone
number, (b) the approximate dates of your relationship with Prime, (c) a written statement of all
grounds for the objection, (d) copies of any papers, briefs, or other documents upon which the
objection is based (if applicable), (e) a statement of whether you intend to appear at the Fairness
Hearing, and (f) your signature, even if you are represented by counsel. If you intend to appear at the
Fairness Hearing through counsel, the objection must also state the identity of all attorneys
representing you who will appear at the Fairness Hearing. Settlement Class Members who do not
timely make their objections in this manner will be deemed to have waived all objections and shall
not be heard or have the right to appeal approval of the settlement. If you object to the settlement but
would like to receive the full amount to which you are entitled if your objection is overruled by the
Court, then you must submit a Claim/Consent to Join Form in addition to your objection no later than
[insert date 60 days from mailing]. If you submit an objection but do not submit a Claim/Consent
to Join Form and your objection is overruled, then you will receive only the minimum payment of
$100.00.

EXHIBIT 1

 DocuSign Envelope ID: 781F31BC-DA9F-474B-8BB5-8CE4D3A2696F

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10. Are there more details available?
If you have any questions or require additional information, please contact the Administrator at the
following contact information: [Administrator Contact Information]
You may also contact the Class Counsel at the following contact information:
Hillary Schwab
Rachel Smit
Fair Work, P.C.
192 South Street, Suite 450
Boston, MA 02111
Telephone: 617-607-3261
Email: [insert]@fairworklaw.com

Virginia Stevens Crimmins
Matthew Crimmins
Crimmins Law Firm LLC
214 S. Spring Street
Independence, MO 64050
Telephone: 855-974-0777
Email:[insert]@crimminslawfirm.com

Garrett M. Hodes
Hodes Law Firm, LLC
900 Westport Rd., 2nd Floor
Kansas City, MO 64111
Telephone: 855-635-7890
Email:[insert]@hodeslawfirm.com

PLEASE DO NOT CONTACT THE COURT CLERK REGARDING THIS MATTER

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Exhibit B

EXHIBIT 1

 DocuSign Envelope ID: 781F31BC-DA9F-474B-8BB5-8CE4D3A2696F

Case 1:15-cv-10603-PBS Document 252-1 Filed 07/20/20 Page 54 of 74

NOTICE OF SETTLEMENT

YOU ARE RECEIVING THIS NOTICE BECAUSE YOU ARE
ENTITLED TO MONEY FROM A SETTLEMENT WITH NEW PRIME, INC.

YOU MUST TAKE ACTION BY [INSERT DATE] TO RECEIVE YOUR MAXIMUM
SHARE

This Notice affects your rights. Please read it carefully.
This is not a solicitation from a lawyer. The United States District Courts (the “Courts”)
for the District of Massachusetts and the Western District of Missouri authorized this Notice.
TO:

«First_Name» «Last_Name»
<<Class Settlement Driver Code >>

RE:

Settlement of Claims for Alleged Unpaid Wages and All Related Claims for Relief

•

A settlement has been reached between Dominic Oliveira and Rocky Haworth (“Class Representatives”) and
New Prime, Inc. (“Prime”) regarding Plaintiffs’ claims that Prime improperly paid drivers, in violation of the
Fair Labor Standards Act (“FLSA”), Missouri Minimum Wage Law (“MMWL”) and related laws.

•

For settlement purposes, the Courts have preliminarily certified a class and collective action of all individuals
who have attended training to become truck drivers for Prime and/or have driven for Prime as employee
drivers and/or as independent contractor drivers who have leased their trucks through Prime at any time since
October 2, 2012 through May 8, 2020, and all individuals who have otherwise attended training in Missouri
to become truck drivers for Prime at any time since March 4, 2010 through May 8, 2020, except for the named
plaintiffs in Montgomery v. New Prime, Inc., 8:17-00321(C.D. Cal.).

•

You are receiving this Notice because you have been identified as a Class Member. This Notice is to inform
you about the settlement and your rights related to the same.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
JOIN THE
SETTLEMENT AND
RECEIVE YOUR
MAXIMUM SHARE

If you wish to receive your maximum share of the settlement, you must fill out
and return or submit online the attached Claim/Consent to Join Form no later than
[insert date 60 days]. By doing so, you will receive a minimum settlement
payment of <<Settlement_Amount>>, which has been calculated as described in
Section 3 below.

DO NOTHING

If you choose to do nothing, you will be eligible to receive a minimum settlement
payment, described below.

EXCLUDE
YOURSELF FROM
THE SETTLEMENT

If you choose to exclude yourself from the settlement by [insert date], you will
not receive any payment and will not be considered a part of this settlement.

OBJECT TO THE
SETTLEMENT

Write to the Court about why you do not like the settlement.

For more information about the settlement, please visit the website: [insert website address].
AVISO IMPORTANTE A MIEMBROS POTENCIALES DEL COLLECTIVO –
Para español, comuníquese con el administrador al ___________.

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1. What is this litigation about?
Plaintiff Dominic Oliveira filed a lawsuit in United States District Court for the District of Massachusetts
on March 4, 2015 on behalf of himself and other similarly situated trainees and drivers for Prime in a case
entitled Oliveira v. New Prime, Inc., Case No. 1:15-CV-10603. This lawsuit alleged violations of the FLSA
and state wage and hour laws. Specifically, the lawsuit alleged that Prime failed to properly pay trainees
during orientation at Prime, and that Prime’s pay practices with respect to employee drivers and independent
contractors violated federal and state wage and hour laws. Plaintiff Rocky Haworth filed a lawsuit in the
United States District Court for the Western District of Missouri on January 22, 2019 on behalf of himself
and other similarly situated B and C seat drivers employed at Prime in a case entitled Haworth v. New
Prime, Inc., Case No. 6:190-CV-003025-RK. This lawsuit alleged that Prime’s compensation of B and C
seat drivers violated the FLSA and Missouri wage laws. Prime denied and continues to deny the allegations
in these cases. However, Prime wishes to settle these cases to avoid continued costly and time-consuming
litigation.
2. Who is included in the Settlement Class?
The following class and collective action has been certified for settlement purposes: all individuals who
have attended training to become truck drivers for Prime and/or have driven for Prime as employee drivers
and/or as independent contractor drivers who have leased their trucks through Prime at any time from
October 2, 2012, to May 8, 2020, and all individuals who have otherwise attended training in Missouri to
become truck drivers for Prime at any time from March 4, 2010, to May 8, 2020 (the “Class Period”), except
for the named plaintiffs in Montgomery v. New Prime, Inc., 8:17-00321 (C.D. Cal.).
3. What are the Benefits and Terms of the Settlement?
To settle this case, Prime has agreed to pay a total of up to $28,000,000.00 (the “Settlement Fund”),
inclusive of all alleged unpaid wages, liquidated damages, penalties, interest, costs, and attorneys’ fees.
If the Court approves the settlement, you are eligible to receive a portion of the Settlement Fund, after
payment of attorneys’ fees and costs and Service Awards to the Class Representatives. If the Court approves
the settlement and you do nothing, you shall receive a minimum payment of $100.00, less applicable tax
withholdings, in exchange for releasing your claims (See Section 6). If the Court approves the settlement
and you file a Claim/Consent to Join Form, you will be entitled to receive an additional amount. The parties
have endeavored to divide the Settlement Fund in a fair way. The Settlement Fund will be allocated in the
following ways:
•
•
•
•

Orientation Class Fund: Individual allocations of this fund will be based on the type of training or
orientation you attended and the location where you attended it.
B/C Seat Class Fund: Individual allocations of this fund will be based on: the miles driven in B or C
seat status, compared to the gross earnings during that time.
A Seat Class Fund: Individual allocations of this fund will be based on: the miles driven in A seat
status as an employee driver (also known as “company driver”), compared to the gross earnings during
that time.
Independent Contractor Class Fund: Individual allocations of this fund will be based on: the miles
driven in A seat status as an independent contractor, compared to 65% of the gross revenues earned
during that time.

Additionally, individuals who have already received monies as part of another class action settlement in
California against New Prime, Inc. will receive a 50% share from this settlement. Under these formulas, if
the settlement is approved by the Court and you join the settlement, you will receive a settlement payment

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no less than the estimated gross amount of «Settlement_Amount». You may also be eligible to be paid
additional amounts from the settlement depending on how many individuals submit forms to participate in
the settlement.
One-half of each Settlement Class Member’s settlement payment is considered wages and shall be subject
to the withholding of all applicable local, state, and federal taxes, and reported on an IRS Form W-2. The
remaining one-half of the settlement payment is considered compensation for interest, penalties and
liquidated damages, and will not be subject to payroll withholdings, and will be reported on an IRS Form
1099. Please consult with your accountant or other tax advisor regarding the tax consequences of the
settlement, including the non-monetary relief provided pursuant to the settlement, which is described below.
In addition to the monetary relief above, as a part of the settlement, if approved, Prime has agreed (1) to
release entitlement to and not pursue any collection efforts relating to all monies purportedly owed to Prime
by Class Members who either currently or at the time of their departure from Prime were in orientation, a
B/C seat position, or an A seat company position; (2) to release entitlement to and not pursue any collection
efforts related to all monies purportedly owed to Prime by Class Members who file a Claim/Consent to Join
form and who either currently or at the time of their departure from Prime were in an independent contractor
driving position (with the exception of certain independent contractors who may have destroyed, damaged
or stolen Prime property); (3) to use best efforts to request that the national credit reporting agencies
(Experian, Equifax and TranUnion) delete any reporting of drivers’ accounts with Prime in connection with
any monies released as described above; and (4) upon a driver’s request to HireRight, provide a time letter
to HireRight with a copy to the requesting driver that any defaults owing to Prime and/or related entities
have been rescinded by mutual agreement. For more information about this additional relief and the extent
to which it applies to you, please visit [INSERT WEBSITE] or contact the Settlement Administrator
(contact information in Section 10, below).
4. Who is Class Counsel?
The Court has appointed Hillary Schwab and Rachel Smit of Fair Work, P.C. of Boston, Massachusetts as
Class Counsel to represent the Settlement Class and Virginia Stevens Crimmins, and Matthew R. Crimmins
of the Crimmins Law Firm LLC of Independence, Missouri, Garrett M. Hodes of the Hodes Law Firm,
LLC of Kansas City, Missouri, and Ms. Schwab as Class Counsel to represent members of the Settlement
Class relating to claims for unpaid wages while driving as B and/or C seat drivers. The contact information
for Class Counsel is listed below in Section 10.
5. How much are Attorneys’ Fees, Expenses and Service Awards to Class Representatives?
Class Counsel pursued these cases on a contingent fee basis and has not received any payment of fees or
reimbursement of their out-of-pocket expenses related to litigation or recovery on behalf of the Class. As
part of the settlement, subject to approval, Class Counsel will apply for attorneys’ fees in an amount not to
exceed $9,240,000.00, which is 33% of the Settlement Fund. Additionally, Class Counsel will apply for
reimbursement of litigation costs (including the costs of having a Settlement Administrator administer this
settlement) in an amount not to exceed $225,000.00. The payment for attorneys’ fees and litigation costs
to Class Counsel will be recovered from the Settlement Fund. Participating Class Members will not be
required to make any payments to Class Counsel for attorneys’ fees or other litigation costs from their
individual settlement amounts. Class Counsel will also ask the Court to approve Service Awards to the
Class Representatives in an amount not to exceed $50,000.00 to Mr. Oliveira and $25,000.00 to Mr.
Haworth.

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6. What happens if the Court Approves the Settlement?
If the Court approves the proposed Settlement, these cases will be dismissed with prejudice on the merits
as to all Class Members who do not exclude themselves the settlement. This means that Class Members
who do not exclude themselves will be barred from bringing their own lawsuits for recovery against Prime
to the fullest extent allowed by law. Specifically, Class Members who do not exclude themselves from the
Settlement and/or who endorse their respective settlement check(s), will release all federal and state wage
and hour claims, contract and quasi-contract claims, and any other claims that relate to unpaid wages or
compensation that arose in the course of such Class Member’s attending training to become a truck driver
for Prime from March 4, 2010 to May 8, 2020 and/or driving for Prime either as an employee driver, and/or
as an independent contractor driver who has leased their trucks through Prime, at any time from October 2,
2012 to May 8, 2020 to the fullest extent allowed by law.
Class Members who validly and timely request exclusion from the Settlement will not be entitled to receive
money or other relief as part of this settlement and will not release any claims.
7. What happens if the Court does not approve the Settlement?
If the Court does not approve the proposed settlement, the case will proceed as if no settlement has been
attempted, and there can be no assurance that the class will recover more than is provided for in this
Settlement, or indeed, anything.
8. When is the Fairness Hearing?
A hearing will be held before the Honorable Patti B. Saris, Chief Judge, in the United States District Court
for the District of Massachusetts on [INSERT DATE] at 1 Courthouse Way - Suite 2300, Boston, MA
02210. The purpose of the hearing is for the Court to decide whether the proposed settlement is fair,
reasonable, and adequate as to the Class and should be approved and, if so, to determine what amount of
attorneys’ fees and expenses should be awarded to Class Counsel and what amount should be awarded as
Service Awards to the Class Representatives. The time and date of this hearing may be changed without
further notice. To confirm that the hearing is going forward on the scheduled date and time and/or to inquire
about appearing at the hearing by telephone rather than in person, please contact the Settlement
Administrator or Class Counsel (contact information in Section 10, below).
9. What are my options regarding the Settlement?
If you are receiving this Notice, you have the following options:
a.
Do Nothing: If you choose to do nothing, you will receive the minimum settlement payment
of $100.00, and you will release your wage claims against Prime (and its subsidiaries and affiliates) as
described herein.
b.
Join the Settlement and Receive your Maximum Settlement Share: If you wish to join
the settlement and receive your maximum share, you must return a Claim/Consent to Join Form no later
than [insert date 60 days from mailing].
You may submit your Form by visiting the Administrator’s website at [insert Administrator’s website].
You may also submit your Form to the Administrator via mail, email, or facsimile at the following address:
[Administrator Contact Information]. If you received this Notice via U.S. Mail, an addressed and
postage paid envelope is enclosed for your convenience. Your signed Form must be submitted
electronically or by facsimile or postmarked by [insert date 60 days].

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c.
Request Exclusion from the Settlement: If you wish to be excluded from the settlement,
you must request exclusion no later than [insert date 60 days]. Your request for exclusion from the
settlement must contain the following information: (1) your full name, address, email address, and
telephone number; (2) the approximate dates of your relationship with Prime; (3) a statement that you
request to be excluded from the settlement and understand that you will not be eligible to recover any
monies as part of the settlement; and (4) your signature. You may submit a request for exclusion by mail,
email, or facsimile at the following address: [Administrator Contact Information]. If you exclude
yourself from the settlement, you will not receive any monies from the settlement.
d.
Object to the Settlement: If you are a Class Member and you do not request to be excluded,
you may object to the terms of the settlement and/or to the Class Counsels’ request for attorneys’ fees and
expenses, and/or to the Service Awards for the Class Representatives. If you object and the settlement is
approved, you will be barred from bringing your own individual lawsuit asserting claims related to the
matters referred to in the Litigation, and you will be bound by the final judgment and release and all Orders
entered by the Court. You may, but need not, enter an appearance through counsel of your choice. If you
do, you will be responsible for your own attorneys’ fees and costs.
If you object to the settlement and/or to the Class Counsels’ request for attorneys’ fees and expenses,
and/or to the Service Awards for the Class Representatives, you must, on or before [INSERT 60 days]: (1)
file with the Clerk of the United States District Court for the District of Massachusetts, and (2) serve upon
the Settlement Administrator at [Administrator Contact Information], a written objection including: (a)
your full name, address, email address, and telephone number, (b) the approximate dates of your
relationship with Prime, (c) a written statement of all grounds for the objection, (d) copies of any papers,
briefs, or other documents upon which the objection is based (if applicable), (e) a statement of whether you
intend to appear at the Fairness Hearing, and (f) your signature, even if you are represented by counsel. If
you intend to appear at the Fairness Hearing through counsel, the objection must also state the identity of
all attorneys representing you who will appear at the Fairness Hearing. Settlement Class Members who do
not timely make their objections in this manner will be deemed to have waived all objections and shall not
be heard or have the right to appeal approval of the settlement. If you object to the settlement but would
like to receive the full amount to which you are entitled if your objection is overruled by the Court, then
you must submit a Claim/Consent to Join Form in addition to your objection no later than [insert date 60
days from mailing]. If you submit an objection but do not submit a Claim/Consent to Join Form and your
objection is overruled, then you will receive only the minimum payment of $100.00.
10. Are there more details available?
If you have any questions or require additional information, please contact the Administrator at the
following contact information: [Administrator Contact Information]
You may also contact the Class Counsel at the following contact information:
Hillary Schwab
Rachel Smit
Fair Work, P.C.
192 South Street, Suite 450
Boston, MA 02111
Telephone: 617-607-3261
Email: [insert]@fairworklaw.com

Virginia Stevens Crimmins
Matthew Crimmins
Crimmins Law Firm LLC
214 S. Spring Street
Independence, MO 64050
Telephone: 855-974-0777
Email:[insert]@crimminslawfirm.com

Garrett M. Hodes
Hodes Law Firm, LLC
900 Westport Rd., 2nd Floor
Kansas City, MO 64111
Telephone: 855-635-7890
Email:[insert]@hodeslawfirm.com

PLEASE DO NOT CONTACT THE COURT CLERK REGARDING THIS MATTER

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Exhibit C

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CLAIM/CONSENT TO JOIN FORM
I hereby consent to be a party plaintiff seeking unpaid wages against New Prime, Inc., its
subsidiaries, affiliates, and any other related entities (collectively “Prime”) in this or any other
subsequent action. I understand that, by participating in the settlement, I am releasing all state and
federal unpaid wage claims, contract and quasi-contract claims, and any other claims related to
unpaid wages or compensation that were or could have been brought in Oliveira v. New Prime,
Inc. and/or Haworth v. New Prime, Inc. (i.e., any such claims that arose in the course of my
attending training to become a truck driver for Prime and/or driving for Prime either an employee
driver and/or or as an independent contractor driver who has leased a truck through Prime at any
time from October 2, 2012 to May 8, 2020, and/or any such claims that arose in the course of
attending training to become a truck driver for Prime in Missouri from March 4, 2010 to May 8,
2020.
I hereby designate Class Counsel (as identified in Section 4 of the Notice) as my attorneys for all
purposes in connection with this case, including the settlement.

Date:

_____
Print or Type Name: ________________________

PLEASE CONFIRM THE INFORMATION BELOW (OR UPDATE AS NEEDED) AND PROVIDE ADDITIONAL INFORMATION
FOR IDENTIFICATION PURPOSES.
THIS SECTION WILL NOT BE FILED PUBLICLY

NAME:
ADDRESS: ___________________________________
CITY, STATE, ZIP: _____________________________
PHONE: «PHONE »
EMAIL: «EMAIL »
DATE OF BIRTH (OPTIONAL): ________________________
LAST 4 DIGITS OF SS# OR TAX ID (OPTIONAL): __________

Please contact the Settlement Administrator at [insert phone number and email] if your contact
information changes.

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Exhibit D

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
ROCKY L. HAWORTH, on behalf of
himself and all other similarly situated
persons,
Plaintiffs,

Case No. 6:19-cv-03025-RK

vs.
NEW PRIME, INC.,
Defendants.
[PROPOSED] ORDER GRANTING PLAINTIFF’S UNOPPOSED
MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT
The above-entitled matter came before the Court on Plaintiff’s Unopposed Motion for
Preliminary Approval of Settlement and Motion to Transfer (Doc. No. ____) and Memorandum in
Support (Doc. No. ____). For the reasons set forth in the motion and memorandum, and upon the
good cause shown, it is hereby ORDERED that:
1.

Plaintiff’s Unopposed Motion for Preliminary Approval of Settlement and Motion

to Transfer is GRANTED, and the terms of the Settlement Agreement and Release of Claims
(“Settlement Agreement”) attached as Exhibit 1 to the Motion (Doc. No. __ ) are preliminarily
approved as fair reasonable, and adequate.
2.

Solely for purposes of settlement, a Class is hereby certified pursuant to Rule

23(b)(3) of the Federal Rules of Civil Procedure and pursuant to 29 U.S.C. § 216(b) of the Fair
Labor Standards Act (“FLSA”), defined as follows:
All similarly situated current and former “B” or “C” Seat Drivers who
worked for New Prime from October 2, 2012 to May 8, 2020, except for the
named plaintiffs in Montgomery v. New Prime, Inc., C.D. Cal. Civil Action
No. 8:17-cv-00321.

1

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Excluded from the Class are any Class Members who timely and validly request exclusion from
the Class pursuant to the Notice disseminated in accordance with this Order.
3.

The Court provisionally, and only for the purposes of this settlement, finds that:
(a)

the Class Members consist of 26,489 individuals employed by Defendant as B/C

seat drivers, and the requirement of numerosity is satisfied;
(b)

the litigation and proposed settlement raise questions of law and fact common to

the Class, and these common questions predominate over any questions affecting only individual
Class Members;
(c)

the claims of Rocky Haworth (the “Class Representative”), a former B/C seat driver

employed by Defendant, are typical of the claims of the Class;
(d)

in assisting with the litigation and negotiating and entering into the proposed

settlement, the Class Representative and his counsel have fairly and adequately protected the
interests of the Class, and will adequately represent the Class in connection with the proposed
settlement; and
(e)

a class action is superior to other available methods for the fair and efficient

adjudication of this controversy.
4.

Pursuant to Rule 23(c)(1)(B) and (g), the Court appoints the Class Representative

and his counsel of record, the Crimmins Law Firm LLC, Hodes Law Firm, LLC, and Fair Work,
P.C. to act on behalf of the Class in connection with the proposed settlement.
5.

The Court further approves the Notice attached as Exhibits A through C to the

Settlement Agreement for approval for distribution to the B/C Seat Class, and finds that the
proposed notice process constitutes the best notice practicable under the circumstances and is in

2

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full compliance with the requirements of applicable law, including due process under the United
States Constitution.
6.

Pursuant to the parties’ Settlement Agreement, the Court further finds that this case

should be transferred to the United States District Court for the District of Massachusetts and
consolidated with the case styled Oliveira v New Prime, Inc., 1:15-cv-10603-PBS (D. Mass.), for
the purposes of disseminating Notice, administering the settlement, handling any opt-outs or
objectors and conducting a Final Fairness Hearing in accordance with the terms of the Settlement
Agreement. Given that many of the Putative Class Members are members of both the Haworth
and Oliveira matters, transferring this matter for purposes of settlement administration will
decrease litigation costs, and further the interests of justice.
7.

If the proposed settlement is not finally approved, or the settlement is terminated or

fails to become effective in accordance with the terms of the Settlement Agreement, this settlement
certification order shall be vacated without further order of the Court and without prejudice to the
right of any party to seek or oppose class certification. Thereafter, this case shall be transferred
back to the United States District Court for the Western District of Missouri for further
proceedings.
IT IS HEREBY ORDERED that Plaintiffs’ Unopposed Motion for Preliminary Approval
of Class and Collective Action Settlement and Motion to Transfer is GRANTED.

Date: ___________________________

____________________________________
Honorable Roseann A. Ketchmark
United States District Court Judge

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Exhibit E

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
___________________________________
)
DOMINIC OLIVEIRA,
)
on his own behalf and on behalf of
)
all others similarly situated,
)
)
Plaintiffs,
)
Civil Action No. 1:15-cv-10603-PBS
v.
)
)
NEW PRIME INC.,
)
)
Defendant.
)
___________________________________ )
PRELIMINARY SETTLEMENT APPROVAL ORDER
Plaintiffs have filed an assented-to motion for preliminary settlement approval
pursuant to Federal Rule of Civil Procedure 23 and the federal Fair Labor Standards
Act. In that motion, Plaintiffs request an order preliminarily approving settlement of
the above-captioned action in accordance with the parties’ Settlement Agreement,
which sets forth the terms and conditions for a proposed settlement of this matter and
its dismissal with prejudice.
Having reviewed the assented-to motion, the Settlement Agreement, and
conducting a preliminary approval hearing on July ___, 2020, it is hereby ORDERED
that:
1.

For purposes of this settlement only, the following Settlement Class is

preliminarily certified: All individuals who have attended training to become truck
drivers for Prime and/or have driven for Prime either as employee drivers or as
independent contractor drivers who have leased their trucks through Prime at any time

1

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from October 2, 2012, to May 8, 2020, and all individuals who have otherwise attended
training in Missouri to become truck drivers for Defendant New Prime, Inc. at any time
from March 4, 2010, to May 8, 2020, except for the named plaintiffs in Montgomery v.
New Prime, Inc., Civil Action No. 8:17-cv-00321 (C.D. Cal.).
2.

For purposes of this settlement only, the Settlement Class is preliminarily

certified pursuant to Federal Rule of Civil Procedure 23(b)(3) and 29 U.S.C. § 216(b), and
all Settlement Class Members shall have the right to opt in to the settlement pursuant to
29 U.S.C. § 216(b) and to exclude themselves from the settlement by way of the opt-out
procedure set forth in the Notice of Proposed Class Action Settlement, attached to the
Settlement Agreement (which is Exhibit 1 to Plaintiffs’ motion for preliminary
settlement approval) as Exhibits A and B.
3.

This Court preliminarily finds, solely for purposes of the settlement, that

the Action may be maintained as a class and collective action on behalf of the Settlement
Class because: (a) the Settlement Class is so numerous that joinder of all Settlement
Class Members in the Action is impracticable; (b) there are questions of law and fact
common to Settlement Class Members that predominate over any individual questions;
(c) the Named Plaintiff’s claims are typical of the claims of the Settlement Class; (d) the
Named Plaintiff and Class Counsel have fairly and adequately represented and
protected the interests of the Settlement Class; and (e) a class action is superior to other
available methods for the fair and efficient adjudication of the controversy.
4.

This Court finds that the Settlement Agreement (attached to Plaintiff’s

motion for preliminary settlement approval as Exhibit 1) is fair, reasonable, and

2

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adequate, and within the range of possible approval, subject to further consideration at
the Final Fairness Hearing as set forth below in Paragraph 8.
5.

This Court finds that the Notice of Proposed Class Action Settlement,

attached to the Settlement Agreement as Exhibits A and B, satisfies the requirements of
due process, the Federal Rules of Civil Procedure, constitutes the best notice practicable
under the circumstances, and shall constitute due and sufficient notice to all persons
entitled thereto. The Court approves the form and content of the Notice and Claim
Form, attached to the Settlement Agreement as Exhibit C.
6.

The Court approves the distribution formula and claim procedure set

forth in the Settlement Agreement and in Plaintiffs’ motion for preliminary settlement
approval.
7.

The Court acknowledges that the Honorable Roseann A. Ketchmark, in

the United States District Court for the Western District of Missouri, in the matter styled
Haworth et al. v. New Prime, Inc., Civil Action No. 6:19-cv-03025-RK (W.D. Mo.) certified
the B/C Seat Class as an FLSA collective action and appointed Plaintiff Haworth as
Class Representative for the B/C Seat Class and the Crimmins Law Firm, LLC, Hodes
Law Firm, LLC and Fair Work, P.C. as Class Counsel for the B/C Seat Class pursuant to
29 U.S.C. § 216(b). The Court further acknowledges that the parties have requested or
will request to the presiding judge in Haworth et al. v. New Prime, Inc., Civil Action No.
6:19-cv-03025-RK (W.D. Mo.), that the settlement be preliminarily approved for the B/C
Seat Class pursuant to 29 U.S.C. § 216(b) and Rule 23(g) and be transferred from the
United States District Court for the Western District of Missouri to this Court and

3

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consolidated with this action for purposes of final settlement approval. If Haworth is
transferred, this Court shall preside over the consolidation of the cases and the final
settlement approval of the consolidated cases. If the settlement is finally approved, the
Court shall dismiss the consolidated actions with prejudice as part of final settlement
approval. If the settlement is not finally approved, the Court shall transfer Haworth
back to the United States District Court for the Western District of Missouri for further
proceedings.
8.

The parties shall provide notice to this Court within seven days of the

Haworth Court ruling on Plaintiffs’ motion for preliminary approval and transfer.
9.

The Court directs the Settlement Administrator to distribute the Notice in

the form approved by the Court to Putative Class/Collective Members provided that
the settlement is approved in Haworth and that case is transferred to this Court and
consolidated with this case.
10.

The Final Fairness Hearing shall take place before the Honorable Patti B.

Saris on ________, _____________, 2020, at __:00 _.m. at the United States District Court,
District of Massachusetts, Courtroom 19 (7th Floor), 1 Courthouse Way, Boston,
Massachusetts 02210, to determine: whether the proposed settlement of the Action on
the terms and conditions provided for in the Agreement is fair, reasonable, and
adequate as to the Settlement Class Members and should be approved; whether the
Action should be dismissed with prejudice on the terms provided for in the Agreement;
the amount of fees and costs that should be awarded to Class Counsel; and the amount
of the incentive award that should be awarded to Plaintiff, as provided for in the

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Agreement. The Court will also hear and consider any properly lodged objections at
that time. If the Final Fairness Hearing is conducted via videoconference, then
information about how to participate in the videoconference hearing shall be available
by contacting the Court.
ENTERED this ____ day of _______________, 2020.

____________________________________
The Honorable Patti B. Saris

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Exhibit F

EXHIBIT 1

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Case 1:15-cv-10603-PBS Document 252-1 Filed 07/20/20 Page 72 of 74

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
___________________________________
)
DOMINIC OLIVEIRA,
)
on his own behalf and on behalf of
)
all others similarly situated,
)
)
Plaintiffs,
)
Civil Action No. 1:15-cv-10603-PBS
v.
)
)
NEW PRIME INC.,
)
)
Defendant.
)
___________________________________ )
FINAL SETTLEMENT APPROVAL ORDER AND JUDGMENT
Plaintiffs have filed a motion for final settlement approval pursuant to Federal
Rule of Civil Procedure 23 and the federal Fair Labor Standards Act. In that motion,
Plaintiffs request an order finally approving settlement of the above-captioned action in
accordance with the parties’ settlement agreement, which sets forth the terms and
conditions for a proposed settlement of this matter and its dismissal with prejudice.
Having reviewed the motion, the settlement agreement, and conducting a final
settlement approval hearing on ______, 2020, it is hereby ORDERED that:
1.

This Order applies to the consolidated actions of Oliveira v. New Prime,

Inc., Civil Action No. 1:15-cv-10603-PBS (D. Mass.), and Haworth et al. v. New Prime, Inc.,
Civil Action No. 6:19-cv-03025-RK (W.D. Mo.), which was transferred to this Court from
the United States District Court for the Western District of Missouri.
2.

This settlement is fair, reasonable, and adequate and the Court grants

Plaintiffs’ motion for final settlement approval.

1

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3.

The following Settlement Class is certified pursuant to Federal Rule of

Civil Procedure 23(b)(3) and 29 U.S.C. § 216(b): All individuals who have attended
training to become truck drivers for Prime and/or have driven for Prime either as
employee drivers or as independent contractor drivers who have leased their trucks
through Prime at any time from October 2, 2012, to May 8, 2020, and all individuals
who have otherwise attended training in Missouri to become truck drivers for
Defendant New Prime, Inc. at any time from March 4, 2010, to May 8, 2020, except for
the named plaintiffs in Montgomery v. New Prime, Inc., Civil Action No. 8:17-cv-00321
(C.D. Cal.).
4.

This Court finds that the notice provided to Settlement Class Members

was the best notice practicable and fully satisfied the requirements of the Federal Rules
of Civil Procedure, due process, and any other applicable laws.
5.

The Court grants Class Counsel’s petition for attorneys’ fees and costs and

approves the amounts for fees and costs set forth in Plaintiffs’ motion for final
settlement approval. The Court further approves $50,000.00 as an incentive award to
Plaintiff Dominic Oliveira and $25,000.00 as an incentive award to Plaintiff Rocky
Haworth. These amounts shall be paid out of the settlement fund, as set forth in the
parties’ Settlement Agreement.
6.

The Court approves the proposed distribution of settlement funds as set

forth in Plaintiffs’ motion for final settlement approval and the spreadsheet attached
thereto.

2

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7.

The Court orders that the payments be made in this matter pursuant to

the timetable established in the parties’ Settlement Agreement.
8.

Judgment is to be entered pursuant to Federal Rule of Civil Procedure

54(b) and 29 U.S.C. § 216(b) et seq., and the Court dismisses with prejudice all claims
released as part of this settlement.
9.

The parties’ Settlement Agreement is binding on Defendant, the Class

Representatives, and all Participating Class Members who have not excluded
themselves from the settlement.
10.

The claims of Putative Class/Collective Members who have properly and

timely excluded themselves in full accordance with the procedures set forth in the
parties’ Settlement Agreement are dismissed without prejudice.
11.

Without affecting the finality of this Final Settlement Approval Order and

Judgment in any way, this Court retains continuing jurisdiction to implement the
Settlement Agreement and to construe, enforce, and administer the Settlement
Agreement and this settlement. Class Counsel will continue in their role to oversee all
aspects of the Settlement Agreement and settlement, consistent with the terms of the
Settlement Agreement.

ENTERED this ____ day of _______________, 2020.

____________________________________
The Honorable Patti B. Saris

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NOTICE OF SETTLEMENT

YOU ARE RECEIVING THIS NOTICE BECAUSE YOU ARE
ENTITLED TO MONEY FROM A SETTLEMENT WITH NEW PRIME, INC.

YOU MUST TAKE ACTION BY [INSERT DATE] TO RECEIVE YOUR
MAXIMUM SHARE

This Notice affects your rights. Please read it carefully.
AVISO IMPORTANTE A MIEMBROS POTENCIALES DEL COLLECTIVO – Para español, haga clic aqui.

This is not a solicitation from a lawyer. The United States District Courts (the “Courts”)
for the District of Massachusetts and the Western District of Missouri authorized this Notice.
TO:

«First_Name» «Last_Name»
<<Class Settlement Driver Code >>

RE:

Settlement of Claims for Alleged Unpaid Wages and All Related Claims for Relief

•

A settlement has been reached between Dominic Oliveira and Rocky Haworth (“Class
Representatives”) and New Prime, Inc. (“Prime”) regarding Plaintiffs’ claims that Prime improperly
paid drivers, in violation of the Fair Labor Standards Act (“FLSA”), Missouri Minimum Wage Law
(“MMWL”) and related laws.

•

For settlement purposes, the Courts have preliminarily certified a class and collective action of all
individuals who have attended training to become truck drivers for Prime and/or have driven for Prime
as employee drivers and/or as independent contractor drivers who have leased their trucks through
Prime at any time since October 2, 2012 through May 8, 2020, and all individuals who have otherwise
attended training in Missouri to become truck drivers for Prime at any time since March 4, 2010 through
May 8, 2020, except for the named plaintiffs in Montgomery v. New Prime, Inc., 8:17-00321(C.D. Cal.).

•

You are receiving this Notice because you have been identified as a Class Member. This Notice is to
inform you about the settlement and your rights related to the same.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
JOIN THE
SETTLEMENT AND
RECEIVE YOUR
MAXIMUM SHARE

If you wish to receive your maximum share of the settlement, you must fill out
and return or submit online the attached Claim/Consent to Join Form no later than
[insert date 60 days]. By doing so, you will receive a minimum settlement
payment of <<Settlement_Amount>>, which has been calculated as described in
Section 3 below.

DO NOTHING

If you choose to do nothing, you will be eligible to receive a minimum settlement
payment, described below.

EXCLUDE
YOURSELF FROM
THE SETTLEMENT

If you choose to exclude yourself from the settlement by [insert date], you will
not receive any payment and will not be considered a part of this settlement.

OBJECT TO THE
SETTLEMENT

Write to the Court about why you do not like the settlement.

For more information about the settlement, please visit the website: [insert website address].

EXHIBIT 2-A

 Case 1:15-cv-10603-PBS Document 252-2 Filed 07/20/20 Page 2 of 7

1. What is this litigation about?
Plaintiff Dominic Oliveira filed a lawsuit in United States District Court for the District of
Massachusetts on March 4, 2015 on behalf of himself and other similarly situated trainees and drivers
for Prime in a case entitled Oliveira v. New Prime, Inc., Case No. 1:15-CV-10603. This lawsuit
alleged violations of the FLSA and state wage and hour laws. Specifically, the lawsuit alleged that
Prime failed to properly pay trainees during orientation at Prime, and that Prime’s pay practices with
respect to employee drivers and independent contractors violated federal and state wage and hour
laws. Plaintiff Rocky Haworth filed a lawsuit in the United States District Court for the Western
District of Missouri on January 22, 2019 on behalf of himself and other similarly situated B and C
seat drivers employed at Prime in a case entitled Haworth v. New Prime, Inc., Case No. 6:190-CV003025-RK. This lawsuit alleged that Prime’s compensation of B and C seat drivers violated the
FLSA and Missouri wage laws. Prime denied and continues to deny the allegations in these cases.
However, Prime wishes to settle these cases to avoid continued costly and time-consuming litigation.
2. Who is included in the Settlement Class?
The following class and collective action has been certified for settlement purposes: all individuals
who have attended training to become truck drivers for Prime and/or have driven for Prime as
employee drivers and/or as independent contractor drivers who have leased their trucks through Prime
at any time from October 2, 2012, to May 8, 2020, and all individuals who have otherwise attended
training in Missouri to become truck drivers for Prime at any time from March 4, 2010, to May 8,
2020 (the “Class Period”), except for the named plaintiffs in Montgomery v. New Prime, Inc., 8:1700321 (C.D. Cal.).
3. What are the Benefits and Terms of the Settlement?
To settle this case, Prime has agreed to pay a total of up to $28,000,000.00 (the “Settlement Fund”),
inclusive of all alleged unpaid wages, liquidated damages, penalties, interest, costs, and attorneys’
fees.
If the Court approves the settlement, you are eligible to receive a portion of the Settlement Fund, after
payment of attorneys’ fees and costs and Service Awards to the Class Representatives. If the Court
approves the settlement and you do nothing, you shall receive a minimum payment of $100, less
applicable tax withholdings, in exchange for releasing your claims (See Section 6). If the Court
approves the settlement and you file a Claim/Consent to Join Form, you will be entitled to receive an
additional amount. The parties have endeavored to divide the Settlement Fund in a fair way. The
Settlement Fund will be allocated in the following ways:
•
•
•
•

Orientation Class Fund: Individual allocations of this fund will be based on the type of training
or orientation you attended and the location where you attended it.
B/C Seat Class Fund: Individual allocations of this fund will be based on: the miles driven in B
or C seat status, compared to the gross earnings during that time.
A Seat Class Fund: Individual allocations of this fund will be based on: the miles driven in A
seat status as an employee driver (also known as “company driver”), compared to the gross
earnings during that time.
Independent Contractor Class Fund: Individual allocations of this fund will be based on: the
miles driven in A seat status as an independent contractor, compared to 65% of the gross revenues
earned during that time.

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Additionally, individuals who have already received monies as part of another class action settlement
in California against New Prime, Inc. will receive a 50% share from this settlement. Under these
formulas, if the settlement is approved by the Court and you join the settlement, you will receive a
settlement payment no less than the estimated gross amount of «Settlement_Amount». You may
also be eligible to be paid additional amounts from the settlement depending on how many individuals
submit forms to participate in the settlement.
One-half of each Settlement Class Member’s settlement payment is considered wages and shall be
subject to the withholding of all applicable local, state, and federal taxes, and reported on an IRS
Form W-2. The remaining one-half of the settlement payment is considered compensation for interest,
penalties and liquidated damages, and will not be subject to payroll withholdings, and will be reported
on an IRS Form 1099. Please consult with your accountant or other tax advisor regarding the tax
consequences of the settlement, including the non-monetary relief provided pursuant to the
settlement, which is described below.
In addition to the monetary relief above, as a part of the settlement, if approved, Prime has agreed
(1) to release entitlement to and not pursue any collection efforts relating to all monies purportedly
owed to Prime by Class Members who either currently or at the time of their departure from Prime
were in orientation, a B/C seat position, or an A seat company position; (2) to release entitlement to
and not pursue any collection efforts related to all monies purportedly owed to Prime by Class
Members who file a Claim/Consent to Join form and who either currently or at the time of their
departure from Prime were in an independent contractor driving position (with the exception of
certain independent contractors who may have destroyed, damaged or stolen Prime property); (3) to
use best efforts to request that the national credit reporting agencies (Experian, Equifax and
TranUnion) delete any reporting of drivers’ accounts with Prime in connection with any monies
released as described above; and (4) upon a driver’s request to HireRight, provide a time letter to
HireRight with a copy to the requesting driver that any defaults owing to Prime and/or related entities
have been rescinded by mutual agreement. For more information about this additional relief and the
extent to which it applies to you, please visit [INSERT WEBSITE] or contact the Settlement
Administrator (contact information in Section 10, below).
4. Who is Class Counsel?
The Court has appointed Hillary Schwab and Rachel Smit of Fair Work, P.C. of Boston,
Massachusetts as Class Counsel to represent the Settlement Class and Virginia Stevens Crimmins,
and Matthew R. Crimmins of the Crimmins Law Firm LLC of Independence, Missouri, Garrett M.
Hodes of the Hodes Law Firm, LLC of Kansas City, Missouri, and Ms. Schwab as Class Counsel to
represent members of the Settlement Class relating to claims for unpaid wages while driving as B
and/or C seat drivers. The contact information for Class Counsel is listed below in Section 10.
5. How much are Attorneys’ Fees, Expenses and Service Awards to Class Representatives?
Class Counsel pursued these cases on a contingent fee basis and has not received any payment of fees
or reimbursement of their out-of-pocket expenses related to litigation or recovery on behalf of the
Class. As part of the settlement, subject to approval, Class Counsel will apply for attorneys’ fees in
an amount not to exceed $9,240,000.00, which is 33% of the Settlement Fund. Additionally, Class
Counsel will apply for reimbursement of litigation costs (including the costs of having a Settlement
Administrator administer this settlement) in an amount not to exceed $225,000.00. The payment for
attorneys’ fees and litigation costs to Class Counsel will be recovered from the Settlement Fund.
Participating Class Members will not be required to make any payments to Class Counsel for
attorneys’ fees or other litigation costs from their individual settlement amounts. Class Counsel will

EXHIBIT 2-A

 Case 1:15-cv-10603-PBS Document 252-2 Filed 07/20/20 Page 4 of 7
also ask the Court to approve Service Awards to the Class Representatives in an amount not to exceed
$50,000.00 to Mr. Oliveira and $25,000.00 to Mr. Haworth.
6. What happens if the Court Approves the Settlement?
If the Court approves the proposed Settlement, these cases will be dismissed with prejudice on the
merits as to all Class Members who do not exclude themselves the settlement. This means that Class
Members who do not exclude themselves will be barred from bringing their own lawsuits for recovery
against Prime to the fullest extent allowed by law. Specifically, Class Members who do not exclude
themselves from the Settlement and/or who endorse their respective settlement check(s), will release
all federal and state wage and hour claims, contract and quasi-contract claims, and any other claims
that relate to unpaid wages or compensation that arose in the course of such Class Member’s attending
training to become a truck driver for Prime from March 4, 2010 to May 8, 2020 and/or driving for
Prime either as an employee driver, and/or as an independent contractor driver who has leased their
trucks through Prime, at any time from October 2, 2012 to May 8, 2020 to the fullest extent allowed
by law.
Class Members who validly and timely request exclusion from the Settlement will not be entitled to
receive money or other relief as part of this settlement and will not release any claims.
7. What happens if the Court does not approve the Settlement?
If the Court does not approve the proposed settlement, the case will proceed as if no settlement has
been attempted, and there can be no assurance that the class will recover more than is provided for in
this Settlement, or indeed, anything.
8. When is the Fairness Hearing?
A hearing will be held before the Honorable Patti B. Saris, Chief Judge, in the United States District
Court for the District of Massachusetts on [INSERT DATE] at 1 Courthouse Way - Suite 2300,
Boston, MA 02210. The purpose of the hearing is for the Court to decide whether the proposed
settlement is fair, reasonable, and adequate as to the Class and should be approved and, if so, to
determine what amount of attorneys’ fees and expenses should be awarded to Class Counsel and what
amount should be awarded as a Service Award to the Class Representatives. The time and date of this
hearing may be changed without further notice. To confirm that the hearing is going forward on the
scheduled date and time and/or to inquire about appearing at the hearing by telephone rather than in
person, please contact the Settlement Administrator or Class Counsel (contact information in Section
10, below).
9. What are my options regarding the Settlement?
If you are receiving this Notice, you have the following options:
a.
Do Nothing: If you choose to do nothing, you will receive the minimum settlement
payment of $100.00, and you will release your wage claims against Prime (and its subsidiaries and
affiliates) as described herein.
b.
Join the Settlement and Receive your Maximum Settlement Share: If you wish to
join the settlement and receive your maximum share, you must return a Claim/Consent to Join Form
no later than [insert date 60 days from mailing].

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 Case 1:15-cv-10603-PBS Document 252-2 Filed 07/20/20 Page 5 of 7

CLICK HERE TO JOIN THE
SETTLEMENT
You may submit your Form by visiting the Administrator’s website at [insert Administrator’s
website]. You may also submit your Form to the Administrator via mail, email, or facsimile at the
following address: [Administrator Contact Information]. If you received this Notice via U.S. Mail,
an addressed and postage paid envelope is enclosed for your convenience. Your signed Form must
be submitted electronically or by facsimile or postmarked by [insert date 60 days].
c.
Request Exclusion from the Settlement: If you wish to be excluded from the
settlement, you must request exclusion no later than [insert date 60 days]. Your request for exclusion
from the settlement must contain the following information: (1) your full name, address, email
address, and telephone number; (2) the approximate dates of your relationship with Prime; (3) a
statement that you request to be excluded from the settlement and understand that you will not be
eligible to recover any monies as part of the settlement; and (4) your signature. You may submit a
request for exclusion by mail, email, or facsimile at the following address: [Administrator Contact
Information]. If you exclude yourself from the settlement, you will not receive any monies from
the settlement.
d.
Object to the Settlement: If you are a Class Member and you do not request to be
excluded, you may object to the terms of the settlement and/or to the Class Counsel’s request for
attorneys’ fees and expenses, and/or to the Service Awards for the Class Representatives. If you object
and the settlement is approved, you will be barred from bringing your own individual lawsuit asserting
claims related to the matters referred to in the Litigation, and you will be bound by the final judgment
and release and all Orders entered by the Court. You may, but need not, enter an appearance through
counsel of your choice. If you do, you will be responsible for your own attorneys’ fees and costs.
If you object to the settlement and/or to the Class Counsels’ request for attorneys’ fees and
expenses, and/or to the Service Awards for the Class Representatives, you must, on or before
[INSERT 60 days]: (1) file with the Clerk of the United States District Court for the District of
Massachusetts, and (2) serve upon the Settlement Administrator at [Administrator Contact
Information], a written objection including: (a) your full name, address, email address, and telephone
number, (b) the approximate dates of your relationship with Prime, (c) a written statement of all
grounds for the objection, (d) copies of any papers, briefs, or other documents upon which the
objection is based (if applicable), (e) a statement of whether you intend to appear at the Fairness
Hearing, and (f) your signature, even if you are represented by counsel. If you intend to appear at the
Fairness Hearing through counsel, the objection must also state the identity of all attorneys
representing you who will appear at the Fairness Hearing. Settlement Class Members who do not
timely make their objections in this manner will be deemed to have waived all objections and shall
not be heard or have the right to appeal approval of the settlement. If you object to the settlement but
would like to receive the full amount to which you are entitled if your objection is overruled by the
Court, then you must submit a Claim/Consent to Join Form in addition to your objection no later than
[insert date 60 days from mailing]. If you submit an objection but do not submit a Claim/Consent
to Join Form and your objection is overruled, then you will receive only the minimum payment of
$100.00.

EXHIBIT 2-A

 Case 1:15-cv-10603-PBS Document 252-2 Filed 07/20/20 Page 6 of 7
10. Are there more details available?
If you have any questions or require additional information, please contact the Administrator at the
following contact information: [Administrator Contact Information]
You may also contact the Class Counsel at the following contact information:
Hillary Schwab
Rachel Smit
Fair Work, P.C.
192 South Street, Suite 450
Boston, MA 02111
Telephone: 617-607-3261
Email: [insert]@fairworklaw.com

Virginia Stevens Crimmins
Matthew Crimmins
Crimmins Law Firm LLC
214 S. Spring Street
Independence, MO 64050
Telephone: 855-974-0777
Email:[insert]@crimminslawfirm.com

Garrett M. Hodes
Hodes Law Firm, LLC
900 Westport Rd., 2nd Floor
Kansas City, MO 64111
Telephone: 855-635-7890
Email:[insert]@hodeslawfirm.com

PLEASE DO NOT CONTACT THE COURT CLERK REGARDING THIS MATTER

EXHIBIT 2-A

 Case 1:15-cv-10603-PBS Document 252-2 Filed 07/20/20 Page 7 of 7

CLAIM/CONSENT TO JOIN FORM
I hereby consent to be a party plaintiff seeking unpaid wages against New Prime, Inc., its
subsidiaries, affiliates, and any other related entities (collectively “Prime”) in this or any other
subsequent action. I understand that, by participating in the settlement, I am releasing all state and
federal unpaid wage claims, contract and quasi-contract claims, and any other claims related to
unpaid wages or compensation that were or could have been brought in Oliveira v. New Prime,
Inc. and/or Haworth v. New Prime, Inc. (i.e., any such claims that arose in the course of my
attending training to become a truck driver for Prime and/or driving for Prime either an employee
driver and/or or as an independent contractor driver who has leased a truck through Prime at any
time from October 2, 2012 to May 8, 2020, and/or any such claims that arose in the course of
attending training to become a truck driver for Prime in Missouri from March 4, 2010 to May 8,
2020.
I hereby designate Class Counsel (as identified in Section 4 of the Notice) as my attorneys for all
purposes in connection with this case, including the settlement.

Date:

_____
Print or Type Name: ________________________

PLEASE CONFIRM THE INFORMATION BELOW (OR UPDATE AS NEEDED) AND PROVIDE ADDITIONAL INFORMATION
FOR IDENTIFICATION PURPOSES.
THIS SECTION WILL NOT BE FILED PUBLICLY

NAME:
ADDRESS: ___________________________________
CITY, STATE, ZIP: _____________________________
PHONE: «PHONE »
EMAIL: «EMAIL »
DATE OF BIRTH (OPTIONAL): ________________________
LAST 4 DIGITS OF SS# OR TAX ID (OPTIONAL): __________

Please contact the Settlement Administrator at [insert phone number and email] if your contact
information changes.

EXHIBIT 2-A

 Case 1:15-cv-10603-PBS Document 252-3 Filed 07/20/20 Page 1 of 6

NOTICE OF SETTLEMENT

YOU ARE RECEIVING THIS NOTICE BECAUSE YOU ARE
ENTITLED TO MONEY FROM A SETTLEMENT WITH NEW PRIME, INC.

YOU MUST TAKE ACTION BY [INSERT DATE] TO RECEIVE YOUR MAXIMUM
SHARE

This Notice affects your rights. Please read it carefully.
This is not a solicitation from a lawyer. The United States District Courts (the “Courts”)
for the District of Massachusetts and the Western District of Missouri authorized this Notice.
TO:

«First_Name» «Last_Name»
<<Class Settlement Driver Code >>

RE:

Settlement of Claims for Alleged Unpaid Wages and All Related Claims for Relief

•

A settlement has been reached between Dominic Oliveira and Rocky Haworth (“Class Representatives”) and
New Prime, Inc. (“Prime”) regarding Plaintiffs’ claims that Prime improperly paid drivers, in violation of the
Fair Labor Standards Act (“FLSA”), Missouri Minimum Wage Law (“MMWL”) and related laws.

•

For settlement purposes, the Courts have preliminarily certified a class and collective action of all individuals
who have attended training to become truck drivers for Prime and/or have driven for Prime as employee
drivers and/or as independent contractor drivers who have leased their trucks through Prime at any time since
October 2, 2012 through May 8, 2020, and all individuals who have otherwise attended training in Missouri
to become truck drivers for Prime at any time since March 4, 2010 through May 8, 2020, except for the named
plaintiffs in Montgomery v. New Prime, Inc., 8:17-00321(C.D. Cal.).

•

You are receiving this Notice because you have been identified as a Class Member. This Notice is to inform
you about the settlement and your rights related to the same.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
JOIN THE
SETTLEMENT AND
RECEIVE YOUR
MAXIMUM SHARE

If you wish to receive your maximum share of the settlement, you must fill out
and return or submit online the attached Claim/Consent to Join Form no later than
[insert date 60 days]. By doing so, you will receive a minimum settlement
payment of <<Settlement_Amount>>, which has been calculated as described in
Section 3 below.

DO NOTHING

If you choose to do nothing, you will be eligible to receive a minimum settlement
payment, described below.

EXCLUDE
YOURSELF FROM
THE SETTLEMENT

If you choose to exclude yourself from the settlement by [insert date], you will
not receive any payment and will not be considered a part of this settlement.

OBJECT TO THE
SETTLEMENT

Write to the Court about why you do not like the settlement.

For more information about the settlement, please visit the website: [insert website address].
AVISO IMPORTANTE A MIEMBROS POTENCIALES DEL COLLECTIVO –
Para español, comuníquese con el administrador al ___________.

EXHIBIT 2-B

 Case 1:15-cv-10603-PBS Document 252-3 Filed 07/20/20 Page 2 of 6

1. What is this litigation about?
Plaintiff Dominic Oliveira filed a lawsuit in United States District Court for the District of Massachusetts
on March 4, 2015 on behalf of himself and other similarly situated trainees and drivers for Prime in a case
entitled Oliveira v. New Prime, Inc., Case No. 1:15-CV-10603. This lawsuit alleged violations of the FLSA
and state wage and hour laws. Specifically, the lawsuit alleged that Prime failed to properly pay trainees
during orientation at Prime, and that Prime’s pay practices with respect to employee drivers and independent
contractors violated federal and state wage and hour laws. Plaintiff Rocky Haworth filed a lawsuit in the
United States District Court for the Western District of Missouri on January 22, 2019 on behalf of himself
and other similarly situated B and C seat drivers employed at Prime in a case entitled Haworth v. New
Prime, Inc., Case No. 6:190-CV-003025-RK. This lawsuit alleged that Prime’s compensation of B and C
seat drivers violated the FLSA and Missouri wage laws. Prime denied and continues to deny the allegations
in these cases. However, Prime wishes to settle these cases to avoid continued costly and time-consuming
litigation.
2. Who is included in the Settlement Class?
The following class and collective action has been certified for settlement purposes: all individuals who
have attended training to become truck drivers for Prime and/or have driven for Prime as employee drivers
and/or as independent contractor drivers who have leased their trucks through Prime at any time from
October 2, 2012, to May 8, 2020, and all individuals who have otherwise attended training in Missouri to
become truck drivers for Prime at any time from March 4, 2010, to May 8, 2020 (the “Class Period”), except
for the named plaintiffs in Montgomery v. New Prime, Inc., 8:17-00321 (C.D. Cal.).
3. What are the Benefits and Terms of the Settlement?
To settle this case, Prime has agreed to pay a total of up to $28,000,000.00 (the “Settlement Fund”),
inclusive of all alleged unpaid wages, liquidated damages, penalties, interest, costs, and attorneys’ fees.
If the Court approves the settlement, you are eligible to receive a portion of the Settlement Fund, after
payment of attorneys’ fees and costs and Service Awards to the Class Representatives. If the Court approves
the settlement and you do nothing, you shall receive a minimum payment of $100.00, less applicable tax
withholdings, in exchange for releasing your claims (See Section 6). If the Court approves the settlement
and you file a Claim/Consent to Join Form, you will be entitled to receive an additional amount. The parties
have endeavored to divide the Settlement Fund in a fair way. The Settlement Fund will be allocated in the
following ways:
•
•
•
•

Orientation Class Fund: Individual allocations of this fund will be based on the type of training or
orientation you attended and the location where you attended it.
B/C Seat Class Fund: Individual allocations of this fund will be based on: the miles driven in B or C
seat status, compared to the gross earnings during that time.
A Seat Class Fund: Individual allocations of this fund will be based on: the miles driven in A seat
status as an employee driver (also known as “company driver”), compared to the gross earnings during
that time.
Independent Contractor Class Fund: Individual allocations of this fund will be based on: the miles
driven in A seat status as an independent contractor, compared to 65% of the gross revenues earned
during that time.

Additionally, individuals who have already received monies as part of another class action settlement in
California against New Prime, Inc. will receive a 50% share from this settlement. Under these formulas, if
the settlement is approved by the Court and you join the settlement, you will receive a settlement payment

EXHIBIT 2-B

 Case 1:15-cv-10603-PBS Document 252-3 Filed 07/20/20 Page 3 of 6
no less than the estimated gross amount of «Settlement_Amount». You may also be eligible to be paid
additional amounts from the settlement depending on how many individuals submit forms to participate in
the settlement.
One-half of each Settlement Class Member’s settlement payment is considered wages and shall be subject
to the withholding of all applicable local, state, and federal taxes, and reported on an IRS Form W-2. The
remaining one-half of the settlement payment is considered compensation for interest, penalties and
liquidated damages, and will not be subject to payroll withholdings, and will be reported on an IRS Form
1099. Please consult with your accountant or other tax advisor regarding the tax consequences of the
settlement, including the non-monetary relief provided pursuant to the settlement, which is described below.
In addition to the monetary relief above, as a part of the settlement, if approved, Prime has agreed (1) to
release entitlement to and not pursue any collection efforts relating to all monies purportedly owed to Prime
by Class Members who either currently or at the time of their departure from Prime were in orientation, a
B/C seat position, or an A seat company position; (2) to release entitlement to and not pursue any collection
efforts related to all monies purportedly owed to Prime by Class Members who file a Claim/Consent to Join
form and who either currently or at the time of their departure from Prime were in an independent contractor
driving position (with the exception of certain independent contractors who may have destroyed, damaged
or stolen Prime property); (3) to use best efforts to request that the national credit reporting agencies
(Experian, Equifax and TranUnion) delete any reporting of drivers’ accounts with Prime in connection with
any monies released as described above; and (4) upon a driver’s request to HireRight, provide a time letter
to HireRight with a copy to the requesting driver that any defaults owing to Prime and/or related entities
have been rescinded by mutual agreement. For more information about this additional relief and the extent
to which it applies to you, please visit [INSERT WEBSITE] or contact the Settlement Administrator
(contact information in Section 10, below).
4. Who is Class Counsel?
The Court has appointed Hillary Schwab and Rachel Smit of Fair Work, P.C. of Boston, Massachusetts as
Class Counsel to represent the Settlement Class and Virginia Stevens Crimmins, and Matthew R. Crimmins
of the Crimmins Law Firm LLC of Independence, Missouri, Garrett M. Hodes of the Hodes Law Firm,
LLC of Kansas City, Missouri, and Ms. Schwab as Class Counsel to represent members of the Settlement
Class relating to claims for unpaid wages while driving as B and/or C seat drivers. The contact information
for Class Counsel is listed below in Section 10.
5. How much are Attorneys’ Fees, Expenses and Service Awards to Class Representatives?
Class Counsel pursued these cases on a contingent fee basis and has not received any payment of fees or
reimbursement of their out-of-pocket expenses related to litigation or recovery on behalf of the Class. As
part of the settlement, subject to approval, Class Counsel will apply for attorneys’ fees in an amount not to
exceed $9,240,000.00, which is 33% of the Settlement Fund. Additionally, Class Counsel will apply for
reimbursement of litigation costs (including the costs of having a Settlement Administrator administer this
settlement) in an amount not to exceed $225,000.00. The payment for attorneys’ fees and litigation costs
to Class Counsel will be recovered from the Settlement Fund. Participating Class Members will not be
required to make any payments to Class Counsel for attorneys’ fees or other litigation costs from their
individual settlement amounts. Class Counsel will also ask the Court to approve Service Awards to the
Class Representatives in an amount not to exceed $50,000.00 to Mr. Oliveira and $25,000.00 to Mr.
Haworth.

EXHIBIT 2-B

 Case 1:15-cv-10603-PBS Document 252-3 Filed 07/20/20 Page 4 of 6
6. What happens if the Court Approves the Settlement?
If the Court approves the proposed Settlement, these cases will be dismissed with prejudice on the merits
as to all Class Members who do not exclude themselves the settlement. This means that Class Members
who do not exclude themselves will be barred from bringing their own lawsuits for recovery against Prime
to the fullest extent allowed by law. Specifically, Class Members who do not exclude themselves from the
Settlement and/or who endorse their respective settlement check(s), will release all federal and state wage
and hour claims, contract and quasi-contract claims, and any other claims that relate to unpaid wages or
compensation that arose in the course of such Class Member’s attending training to become a truck driver
for Prime from March 4, 2010 to May 8, 2020 and/or driving for Prime either as an employee driver, and/or
as an independent contractor driver who has leased their trucks through Prime, at any time from October 2,
2012 to May 8, 2020 to the fullest extent allowed by law.
Class Members who validly and timely request exclusion from the Settlement will not be entitled to receive
money or other relief as part of this settlement and will not release any claims.
7. What happens if the Court does not approve the Settlement?
If the Court does not approve the proposed settlement, the case will proceed as if no settlement has been
attempted, and there can be no assurance that the class will recover more than is provided for in this
Settlement, or indeed, anything.
8. When is the Fairness Hearing?
A hearing will be held before the Honorable Patti B. Saris, Chief Judge, in the United States District Court
for the District of Massachusetts on [INSERT DATE] at 1 Courthouse Way - Suite 2300, Boston, MA
02210. The purpose of the hearing is for the Court to decide whether the proposed settlement is fair,
reasonable, and adequate as to the Class and should be approved and, if so, to determine what amount of
attorneys’ fees and expenses should be awarded to Class Counsel and what amount should be awarded as
Service Awards to the Class Representatives. The time and date of this hearing may be changed without
further notice. To confirm that the hearing is going forward on the scheduled date and time and/or to inquire
about appearing at the hearing by telephone rather than in person, please contact the Settlement
Administrator or Class Counsel (contact information in Section 10, below).
9. What are my options regarding the Settlement?
If you are receiving this Notice, you have the following options:
a.
Do Nothing: If you choose to do nothing, you will receive the minimum settlement payment
of $100.00, and you will release your wage claims against Prime (and its subsidiaries and affiliates) as
described herein.
b.
Join the Settlement and Receive your Maximum Settlement Share: If you wish to join
the settlement and receive your maximum share, you must return a Claim/Consent to Join Form no later
than [insert date 60 days from mailing].
You may submit your Form by visiting the Administrator’s website at [insert Administrator’s website].
You may also submit your Form to the Administrator via mail, email, or facsimile at the following address:
[Administrator Contact Information]. If you received this Notice via U.S. Mail, an addressed and
postage paid envelope is enclosed for your convenience. Your signed Form must be submitted
electronically or by facsimile or postmarked by [insert date 60 days].

EXHIBIT 2-B

 Case 1:15-cv-10603-PBS Document 252-3 Filed 07/20/20 Page 5 of 6
c.
Request Exclusion from the Settlement: If you wish to be excluded from the settlement,
you must request exclusion no later than [insert date 60 days]. Your request for exclusion from the
settlement must contain the following information: (1) your full name, address, email address, and
telephone number; (2) the approximate dates of your relationship with Prime; (3) a statement that you
request to be excluded from the settlement and understand that you will not be eligible to recover any
monies as part of the settlement; and (4) your signature. You may submit a request for exclusion by mail,
email, or facsimile at the following address: [Administrator Contact Information]. If you exclude
yourself from the settlement, you will not receive any monies from the settlement.
d.
Object to the Settlement: If you are a Class Member and you do not request to be excluded,
you may object to the terms of the settlement and/or to the Class Counsels’ request for attorneys’ fees and
expenses, and/or to the Service Awards for the Class Representatives. If you object and the settlement is
approved, you will be barred from bringing your own individual lawsuit asserting claims related to the
matters referred to in the Litigation, and you will be bound by the final judgment and release and all Orders
entered by the Court. You may, but need not, enter an appearance through counsel of your choice. If you
do, you will be responsible for your own attorneys’ fees and costs.
If you object to the settlement and/or to the Class Counsels’ request for attorneys’ fees and expenses,
and/or to the Service Awards for the Class Representatives, you must, on or before [INSERT 60 days]: (1)
file with the Clerk of the United States District Court for the District of Massachusetts, and (2) serve upon
the Settlement Administrator at [Administrator Contact Information], a written objection including: (a)
your full name, address, email address, and telephone number, (b) the approximate dates of your
relationship with Prime, (c) a written statement of all grounds for the objection, (d) copies of any papers,
briefs, or other documents upon which the objection is based (if applicable), (e) a statement of whether you
intend to appear at the Fairness Hearing, and (f) your signature, even if you are represented by counsel. If
you intend to appear at the Fairness Hearing through counsel, the objection must also state the identity of
all attorneys representing you who will appear at the Fairness Hearing. Settlement Class Members who do
not timely make their objections in this manner will be deemed to have waived all objections and shall not
be heard or have the right to appeal approval of the settlement. If you object to the settlement but would
like to receive the full amount to which you are entitled if your objection is overruled by the Court, then
you must submit a Claim/Consent to Join Form in addition to your objection no later than [insert date 60
days from mailing]. If you submit an objection but do not submit a Claim/Consent to Join Form and your
objection is overruled, then you will receive only the minimum payment of $100.00.
10. Are there more details available?
If you have any questions or require additional information, please contact the Administrator at the
following contact information: [Administrator Contact Information]
You may also contact the Class Counsel at the following contact information:
Hillary Schwab
Rachel Smit
Fair Work, P.C.
192 South Street, Suite 450
Boston, MA 02111
Telephone: 617-607-3261
Email: [insert]@fairworklaw.com

Virginia Stevens Crimmins
Matthew Crimmins
Crimmins Law Firm LLC
214 S. Spring Street
Independence, MO 64050
Telephone: 855-974-0777
Email:[insert]@crimminslawfirm.com

Garrett M. Hodes
Hodes Law Firm, LLC
900 Westport Rd., 2nd Floor
Kansas City, MO 64111
Telephone: 855-635-7890
Email:[insert]@hodeslawfirm.com

PLEASE DO NOT CONTACT THE COURT CLERK REGARDING THIS MATTER

EXHIBIT 2-B

 Case 1:15-cv-10603-PBS Document 252-3 Filed 07/20/20 Page 6 of 6

CLAIM/CONSENT TO JOIN FORM
I hereby consent to be a party plaintiff seeking unpaid wages against New Prime, Inc., its
subsidiaries, affiliates, and any other related entities (collectively “Prime”) in this or any other
subsequent action. I understand that, by participating in the settlement, I am releasing all state and
federal unpaid wage claims, contract and quasi-contract claims, and any other claims related to
unpaid wages or compensation that were or could have been brought in Oliveira v. New Prime,
Inc. and/or Haworth v. New Prime, Inc. (i.e., any such claims that arose in the course of my
attending training to become a truck driver for Prime and/or driving for Prime either an employee
driver and/or or as an independent contractor driver who has leased a truck through Prime at any
time from October 2, 2012 to May 8, 2020, and/or any such claims that arose in the course of
attending training to become a truck driver for Prime in Missouri from March 4, 2010 to May 8,
2020.
I hereby designate Class Counsel (as identified in Section 4 of the Notice) as my attorneys for all
purposes in connection with this case, including the settlement.

Date:

_____
Print or Type Name: ________________________

PLEASE CONFIRM THE INFORMATION BELOW (OR UPDATE AS NEEDED) AND PROVIDE ADDITIONAL INFORMATION
FOR IDENTIFICATION PURPOSES.
THIS SECTION WILL NOT BE FILED PUBLICLY

NAME:
ADDRESS: ___________________________________
CITY, STATE, ZIP: _____________________________
PHONE: «PHONE »
EMAIL: «EMAIL »
DATE OF BIRTH (OPTIONAL): ________________________
LAST 4 DIGITS OF SS# OR TAX ID (OPTIONAL): __________

Please contact the Settlement Administrator at [insert phone number and email] if your contact
information changes.

EXHIBIT 2-B

 Case 1:15-cv-10603-PBS Document 252-4 Filed 07/20/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
___________________________________
)
DOMINIC OLIVEIRA,
)
on his own behalf and on behalf of
)
all others similarly situated,
)
)
Plaintiffs,
)
Civil Action No. 1:15-cv-10603-PBS
v.
)
)
NEW PRIME INC.,
)
)
Defendant.
)
___________________________________ )
PRELIMINARY SETTLEMENT APPROVAL ORDER
Plaintiffs have filed an assented-to motion for preliminary settlement approval
pursuant to Federal Rule of Civil Procedure 23 and the federal Fair Labor Standards
Act. In that motion, Plaintiffs request an order preliminarily approving settlement of
the above-captioned action in accordance with the parties’ Settlement Agreement,
which sets forth the terms and conditions for a proposed settlement of this matter and
its dismissal with prejudice.
Having reviewed the assented-to motion, the Settlement Agreement, and
conducting a preliminary approval hearing on July ___, 2020, it is hereby ORDERED
that:
1.

For purposes of this settlement only, the following Settlement Class is

preliminarily certified: All individuals who have attended training to become truck
drivers for Prime and/or have driven for Prime either as employee drivers or as
independent contractor drivers who have leased their trucks through Prime at any time

1 

EXHIBIT 3

 Case 1:15-cv-10603-PBS Document 252-4 Filed 07/20/20 Page 2 of 5

from October 2, 2012, to May 8, 2020, and all individuals who have otherwise attended
training in Missouri to become truck drivers for Defendant New Prime, Inc. at any time
from March 4, 2010, to May 8, 2020, except for the named plaintiffs in Montgomery v.
New Prime, Inc., Civil Action No. 8:17-cv-00321 (C.D. Cal.).
2.

For purposes of this settlement only, the Settlement Class is preliminarily

certified pursuant to Federal Rule of Civil Procedure 23(b)(3) and 29 U.S.C. § 216(b), and
all Settlement Class Members shall have the right to opt in to the settlement pursuant to
29 U.S.C. § 216(b) and to exclude themselves from the settlement by way of the opt-out
procedure set forth in the Notice of Proposed Class Action Settlement, attached to the
Settlement Agreement (which is Exhibit 1 to Plaintiffs’ motion for preliminary
settlement approval) as Exhibits A and B.
3.

This Court preliminarily finds, solely for purposes of the settlement, that

the Action may be maintained as a class and collective action on behalf of the Settlement
Class because: (a) the Settlement Class is so numerous that joinder of all Settlement
Class Members in the Action is impracticable; (b) there are questions of law and fact
common to Settlement Class Members that predominate over any individual questions;
(c) the Named Plaintiff’s claims are typical of the claims of the Settlement Class; (d) the
Named Plaintiff and Class Counsel have fairly and adequately represented and
protected the interests of the Settlement Class; and (e) a class action is superior to other
available methods for the fair and efficient adjudication of the controversy.
4.

This Court finds that the Settlement Agreement (attached to Plaintiff’s

motion for preliminary settlement approval as Exhibit 1) is fair, reasonable, and

2 

EXHIBIT 3

 Case 1:15-cv-10603-PBS Document 252-4 Filed 07/20/20 Page 3 of 5

adequate, and within the range of possible approval, subject to further consideration at
the Final Fairness Hearing as set forth below in Paragraph 8.
5.

This Court finds that the Notice of Proposed Class Action Settlement,

attached to the Settlement Agreement as Exhibits A and B, satisfies the requirements of
due process, the Federal Rules of Civil Procedure, constitutes the best notice practicable
under the circumstances, and shall constitute due and sufficient notice to all persons
entitled thereto. The Court approves the form and content of the Notice and Claim
Form, attached to the Settlement Agreement as Exhibit C.
6.

The Court approves the distribution formula and claim procedure set

forth in the Settlement Agreement and in Plaintiffs’ motion for preliminary settlement
approval.
7.

The Court acknowledges that the Honorable Roseann A. Ketchmark, in

the United States District Court for the Western District of Missouri, in the matter styled
Haworth et al. v. New Prime, Inc., Civil Action No. 6:19-cv-03025-RK (W.D. Mo.) certified
the B/C Seat Class as an FLSA collective action and appointed Plaintiff Haworth as
Class Representative for the B/C Seat Class and the Crimmins Law Firm, LLC, Hodes
Law Firm, LLC and Fair Work, P.C. as Class Counsel for the B/C Seat Class pursuant to
29 U.S.C. § 216(b). The Court further acknowledges that the parties have requested or
will request to the presiding judge in Haworth et al. v. New Prime, Inc., Civil Action No.
6:19-cv-03025-RK (W.D. Mo.), that the settlement be preliminarily approved for the B/C
Seat Class pursuant to 29 U.S.C. § 216(b) and Rule 23(g) and be transferred from the
United States District Court for the Western District of Missouri to this Court and

3 

EXHIBIT 3

 Case 1:15-cv-10603-PBS Document 252-4 Filed 07/20/20 Page 4 of 5

consolidated with this action for purposes of final settlement approval. If Haworth is
transferred, this Court shall preside over the consolidation of the cases and the final
settlement approval of the consolidated cases. If the settlement is finally approved, the
Court shall dismiss the consolidated actions with prejudice as part of final settlement
approval. If the settlement is not finally approved, the Court shall transfer Haworth
back to the United States District Court for the Western District of Missouri for further
proceedings.
8.

The parties shall provide notice to this Court within seven days of the

Haworth Court ruling on Plaintiffs’ motion for preliminary approval and transfer.
9.

The Court directs the Settlement Administrator to distribute the Notice in

the form approved by the Court to Putative Class/Collective Members provided that
the settlement is approved in Haworth and that case is transferred to this Court and
consolidated with this case.
10.

The Final Fairness Hearing shall take place before the Honorable Patti B.

Saris on ________, _____________, 2020, at __:00 _.m. at the United States District Court,
District of Massachusetts, Courtroom 19 (7th Floor), 1 Courthouse Way, Boston,
Massachusetts 02210, to determine: whether the proposed settlement of the Action on
the terms and conditions provided for in the Agreement is fair, reasonable, and
adequate as to the Settlement Class Members and should be approved; whether the
Action should be dismissed with prejudice on the terms provided for in the Agreement;
the amount of fees and costs that should be awarded to Class Counsel; and the amount
of the incentive award that should be awarded to Plaintiff, as provided for in the

4 

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 Case 1:15-cv-10603-PBS Document 252-4 Filed 07/20/20 Page 5 of 5

Agreement. The Court will also hear and consider any properly lodged objections at
that time. If the Final Fairness Hearing is conducted via videoconference, then
information about how to participate in the videoconference hearing shall be available
by contacting the Court.
ENTERED this ____ day of _______________, 2020.

____________________________________
The Honorable Patti B. Saris

5 

EXHIBIT 3