The notice you received in the mail was to inform you that you have been identified as an individual who is or was employed as a “Joint Venture General Manager” (“JV GM”) with Panera, or any affiliate or subsidiary of Panera; who signed a Joint Venture General Manager Compensation Plan, which can be located and produced in this litigation, and who received a “capped” JV GM Buyout payment from Panera at any time during the period from October 29, 2009 through the date of trial (the “Class Period”).
A “capped” JV GM Buyout payment is a JV GM Buyout payment made to an employee in an amount less than the total JV GM Buyout amount determined in accordance with Section 3(b) of the employee’s Joint Venture General Manager Compensation Plan with Panera.
The mailed notice explains that the Court has allowed, or “certified,” a class action lawsuit that may affect you. You have legal rights and options that you may exercise before the Court holds a trial. The trial is to decide whether the claims being made against Panera, on your behalf, are correct. The Honorable Judge Audrey G. Fleissig is overseeing this class action.
The lawsuit is known as Mark Boswell, David Lutton, Vickie Snyder and all others similarly situated v. Panera Bread Company and Panera, LLC, CivilAction No. 4:14CV-1833.
There is presently pending in the United States District Court for the Eastern District of Missouri a legal action against Panera Bread Company and Panera, LLC. This action concerns Panera’s alleged imposition of a “cap” on the maximum amount of a JV GM Buyout payment that Panera made to you between 2012 and 2015, and to other JV GMs who fall within the class certified by the Court. This action alleges that Panera’s imposition of a Buyout cap violates the Panera JV GM Compensation Plan to which you were a party, and was contrary to Panera’s representations. The action alleges that Panera’s imposition of the Buyout cap constituted a breach of contract and fraud under Missouri law. Panera has denied these allegations and maintains that there was no breach of contract or fraud by Panera, and that the JV GM Compensation Plans at issue were properly modified and/or replaced with new agreements.
Other than the JV GM Buyout payments referenced above that are the subject of this lawsuit, this lawsuit does not otherwise seek to change Panera’s Joint Venture program or your existing relationship, if any, with Panera.
In a class action lawsuit, one or more people called “Class Representatives” (in this case Mark Boswell, David Lutton and Vickie Snyder) sue on behalf of other people who have similar claims. The people together are a “Class” or “Class Members.” The JV GMs who sued — and all the Class Members like them — are called the Plaintiffs. The company they sued (in this case Panera) is called the Defendant. One court resolves the issues for everyone in the Class — except for those people who choose to exclude themselves from the Class.
The United States District Court has certified this action as a class action on behalf of all of the individual JV GMs who have been identified as class members and are receiving this notice. The Court decided that this lawsuit can be a class action and move towards a trial because it meets the requirements of Federal Rule of Civil Procedure 23, which governs class actions in federal courts.
More information about why the Court is allowing this lawsuit to be a class action is in the Court’s Memorandum and Order certifying the Class.
In the lawsuit, the Plaintiffs say that Panera entered into written compensation agreements (JV GM Compensation Plans) with you and the other Class Members, which provided that Panera would pay you a “one-time JV GM Buyout” payment. With respect to the amount of the Buyout payment, the Plaintiffs say that Section 3(b) of these compensation agreements required Panera to pay you and the other Class Members the amount determined by a specific formula, which turned on the profitability of your cafes. Plaintiffs also say that Section 5(d) of the compensation agreements did not allow Panera to modify the agreements without your signed written consent. The Plaintiffs say that Panera violated these contractual provisions by imposing a cap on the amounts of the Buyout payments that it made to you and the other Class Members. The Plaintiffs say that Panera’s actions constitute a breach of contract and fraud under Missouri law.
Panera has denied that it did anything wrong and says that there was no breach of contract or fraud by Panera. Panera says and that the JV GM Compensation Plans at issue were properly modified and/or replaced with new agreements that authorized Panera to impose a cap on the Buyout payments it made to the Class Members.
The Plaintiffs are asking the Court to award the Class Members payments to make up for the difference between the full alleged Buyouts determined by Section 3(b) of the JV GM Compensation Plan — the amounts the Class Members allegedly would have received in the absence of a Buyout cap — and the lesser, capped Buyouts that the Class Members actually received.
The Court has not decided whether Panera or the Plaintiffs are correct. By establishing the Class and issuing this Notice, the Court is not suggesting that the Plaintiffs will win or lose this case. The Plaintiffs must prove their claims at a trial currently set to start on April 11, 2016, subject to change by the Court.
Your Rights and Options as a Class Member
You have to decide whether to stay in the Class or ask to be excluded before the trial, and you have to decide this now.
Yes. If you have received this notice, you are a considered to be a member of the class and your rights will be affected by the certification of this Class. The Court has directed that you be given notice of the class action and be given the opportunity to opt out of the class if you wish.
You don’t have to do anything now if you want to keep the possibility of getting money or benefits from this lawsuit. By doing nothing you are staying in the Class. Participation in the Class does not require you to provide any financial contribution for attorney fees and other expenses. Rather, if money or benefits are obtained, you will be entitled to share in the benefits of any judgment favorable to the Class or in any settlement of the claims, after the deduction of attorneys’fees and disbursements from the judgment amount or settlement fund.
Keep in mind that if you remain in the Class, regardless of whether the Plaintiffs win or lose the trial or obtain a settlement, you will not be able to bring, or continue, your own individual lawsuit about the same legal claims that are the subject of this lawsuit, and will be bound by any unfavorable determination that may occur on these specific legal claims. You will also be legally bound by all of the Orders the Court issues and judgments the Court makes in this class action.
In the event that the class action is successful, you will be entitled to share in the benefits of any judgment favorable to the Class or in any settlement of the claims, after the deduction of attorneys’fees and disbursements from the judgment amount or the settlement fund. Any settlement of this class action or any disbursements resulting from a favorable judgment will be supervised and must be approved by the Court.
If you exclude yourself from the Class — which also means to remove yourself from the Class, and is sometimes called “opting-out” of the Class — you won’t get any money or benefits from this lawsuit even if the Plaintiffs obtain them as a result of the trial or from any settlement (that may or may not be reached) between Panera and the Plaintiffs. If you exclude yourself, you will not be legally bound by the Court’s judgments in this class action.
However, you may then be able to start your own lawsuit against Panera for these particular breach of contract and fraud claims. If you start your own lawsuit against Panera after you exclude yourself, you’ll have to hire and pay your own lawyer for that lawsuit, and you’ll have to prove your claims. If you do exclude yourself so you can start your own lawsuit against Panera you should talk to your own lawyer soon, because your claims may be subject to a statute of limitations.
If, before you receive this notice, you already have filed your own breach of contract or fraud claim against Panera based on a JV GM Compensation Plan executed between 2007 and 2010 and want to continue with it, you need to ask to be excluded from the Class.
If you do not wish to participate in the class action, then you may exclude yourself (that is, “opt out”)from the class. To exclude yourself from the Class, you must send a letter requesting that you be excluded as a Class Member from Mark Boswell, et al v. Panera Bread Company, et al., Case No. 4:14-CV-1833-AGF. Your letter must contain the following information:
- A reference at the beginning to this case, Mark Boswell, et al v. Panera Bread Company, et al, Case No. 4:14-CV-1833-AGF,
- Your full name (and former names, if any),
- Your address and telephone number, and
- A statement that you request to be excluded from the class action.To be effective, you must mail your request for exclusion to the Court, counsel for the Class, and counsel for Panera, with each postmarked no later than January 21, 2016, and sent to the following respective addresses:
Clerk of the Court for the Hon. Audrey G. Fleissig
United States District Court for the Eastern District of
Missouri, Eastern Division
111 South Tenth Street
St. Louis, Missouri 63102
Counsel for Plaintiff Class
Dennis E. Egan
Bert S. Braud
712 Broadway, Suite 100
Kansas City, MO 64105
Counsel for Panera
Patrick F. Hulla
Justin M. Dean
Jennifer K. Oldvader
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
4520 Main Street, Suite 400
Kansas City, MO 64111
Yes, unless you opt out. The Court has approved the following lawyers to represent you and other Class Members: attorneys Dennis Egan and Bert Braud, Popham Law Firm, 712 Broadway, Suite 100, Kansas City, Missouri 64105; and attorney Tim Coffield, Coffield PLC, 5374 Gordonsville Road, Keswick, Virginia 22947. These attorneys are called “Class Counsel.” The Court has determined that they qualified to represent you and the other Class Members in this case. More information about these law firms and their lawyers’ experience is available at www.pophamlaw.com and coffieldlaw.com.
You do not need to hire your own lawyer because Class Counsel is working on your behalf. But, if you want your own lawyer, you will have to pay that lawyer. For example, you can ask him or her to appear in Court for you if you want someone other than Class Counsel to speak for you.
The Class Counsel will only be paid if the result of this lawsuit is successful, and such payment, if any, will be deducted from the total judgment amount or the settlement fund in an amount approved by the Court. In no event, however, will you be responsible for paying any attorney fees or other expenses. If the class action is not successful, the Class Counsel will not be paid.
A trial on the merits of the breach of contract and fraud claims is currently scheduled to be held before the Honorable Audrey G. Fleissig, United States District Judge, at the United States District Courthouse, United States District Court, Eastern District of Missouri, 111 South 10th Street, St. Louis, Missouri 63102 beginning on April 11, 2016, subject to change by the Court. During the trial, a Jury or the Judge will hear all of the evidence to help them reach a decision about whether the Plaintiffs or Defendant are right about the claims in the lawsuit. There is no guarantee that the Plaintiffs will win, or that they will get any money for the Class.
Should settlement be proposed and acceptable to the Class Representatives, notice of the proposed settlement will be published and provided to you, similar to this notice, and a hearing will be held by Judge Fleissig to consider the proposed settlement. The time and date of any such hearing will be communicated to you in advance.
Any member of the Class who does not request exclusion from membership in the Class as provided above and who takes no further action will be represented in this action by Class Counsel listed above, although persons may have their own counsel enter an appearance in the matter. The fees and costs of any counsel retained by an individual Class Member must be borne by such Class Member.
Should you opt out of the Class at this time, you will not be eligible to participate in any settlement agreement or trial in this matter and will not be eligible to share in any settlement or favorable judgment. Only Class Members who remain in the Class and do not exclude themselves as described above will be eligible to share in a potential favorable financial result.
You do not need to attend the trial unless you are called as a witness or otherwise informed of the need to attend. Class Counsel will present the case for the Plaintiffs, and Panera will present the defenses. You or your own lawyer are welcome to come at your own expense.
For more information or if you have any questions, you may: contact Class Counsel by calling (816) 221-2288 or writing to
Panera JV GM Buyout Class Action Litigation,
c/o Popham Law Firm, Class Counsel, 712 Broadway, Suite 100,
Kansas City, Missouri 64105.
The Court, Clerk of the Court, and Panera’s counsel may not provide you with advice regarding your rights or whether to participate in this case.