Civil Action No. 3:22-cv-00531-JAG in the United States District Court for the Eastern District of Virginia

Frequently Asked Questions

  1. Why did I receive Notice?

    1. You received notice because EEG’s records show that you worked for EEG as either an hourly exempt computer technician or as an hourly non-exempt employee, and that you received per diem payments and worked over 40 hours in a workweek sometime between October 11, 2019, and October 23, 2022, while working in those positions. All individuals who meet these conditions are eligible to participate in this settlement.

      The Court authorized the notice because you have a right to know about the settlement and about all of your options in connection with it. The notice explains the lawsuit and settlement, your legal rights, what benefits are available in the settlement, what you give up by participating in the settlement, and how you can join the settlement if you would like to do so.

  2. What is this lawsuit about?

    1. The title of the case is Denham, et al. v. Eight Eleven Group, LLC, No. 3:22-cv-00531-JAG. The person who filed the lawsuit is the “plaintiff” and the company he sued is the “defendant.”

      Plaintiff previously worked for defendant as an exempt-classified Epic TDR Lead. In this position, plaintiff traveled away from his home state to work on a project in Virginia for one of defendant’s clients. During the time plaintiff worked in Virginia he received per diem payments. Plaintiff alleges that defendant violated the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and Virginia Overtime Wage Act (“VOWA”), Va. Code § 40.1-29.2 (2021). Because he was classified as exempt from overtime, Plaintiff did not receive additional overtime pay when he worked over 40 hours in a workweek. He claims, however, that he did not meet the requirements for exempt treatment under the FLSA and the VOWA and should have received one-and-a-half time his regular rate for all hours worked over 40 in a workweek. Additionally, plaintiff contends that his per diem payments should have been treated as wages when computing his regular rate and overtime pay. Based on these allegations, plaintiff seeks to recover overtime wages, liquidated damages, pre-judgment interest, and attorneys’ fees and costs under the FLSA and the VOWA. He also seeks to bring these claims on a collective basis on behalf of other hourly employees of defendant who he alleges were similarly situated to him.

      Defendant denies that their compensation practices violated the FLSA or the VOWA. To the contrary, defendant contends it properly classified plaintiff and other individuals as exempt from overtime under the computer employee exemption. Additionally, defendant asserts that it properly excluded per diem payments from the regular rate and overtime wage calculation for non-exempt employees, since these payments reimbursed business expenses and were not wages. Accordingly, defendant believes plaintiff’s claims are without merit. Defendant further denies that collective treatment is appropriate in this case.

      The Court in charge of the lawsuit is the United States District Court for the Eastern District of Virginia. The judge presiding over the case is Senior United States District Court Judge John A Gibney, Jr.

  3. What is a “collective action” and who is involved?

    1. Under the FLSA and the VOWA, a group of similarly situated individuals may seek to recover unpaid overtime wages and related damages in a single lawsuit, rather than in many separate cases. This is known as a “collective action.” In a collective action, individuals who file consents, or “opt in” to the lawsuit, become plaintiffs. The individual who initiates the lawsuit, bring the action on behalf of themselves and other people they believe have similar claims who may later choose to join the action. This case was brought as a collective action.

      This type of “opt-in” collective action is different from the better-known “class action,” in which no consent is needed to join. In a traditional class action, the “named plaintiffs” sue on behalf of all individuals within a defined class. Individuals who meet the class definition, the “class members,” are automatically members of that class unless they file a written request with the Court specifically asking to be excluded. This case is not a class action.

      The plaintiff here, Evan Denham, filed this case as a collective action. The putative collective action includes those who worked for EEG as either an hourly exempt computer technician or as an hourly non-exempt employee, and who also received per diem payments and worked over 40 hours in a workweek sometime between October 11, 2019, and October 23, 2022, while working in those positions. While the Court had not decided whether plaintiff and such other employees are sufficiently similar that they may proceed collectively, the parties agreed to settle this matter on a collective basis and the Court authorized that notice be sent to inform individuals regarding the settlement and their rights concerning it.

  4. Why is there a settlement?

    1. Litigation is risky, and neither side can predict the outcome with certainty. It also would likely be some time before any final resolution could be reached through litigation.

      Given these factors, the plaintiff and their attorneys concluded, after careful consideration of all of the facts and circumstances, that the proposed settlement agreed to by the parties, is fair, reasonable, and adequate, and is in the best interests of plaintiff and the putative collective action members. This settlement avoids the costs and inconvenience associated with the discovery process, as well as the costs and risks associated with litigation — including disputes about the propriety of collective treatment, dispositive motions, trial, and potential appeals — while providing, what plaintiff believes are, substantial cash benefits to plaintiff and those other employees who choose to join the settlement.

      Defendant EEG expressly denies any liability or wrongdoing and contends that it has complied with the FLSA and the VOWA at all times. By entering into the settlement agreement, defendant has not admitted—and expressly denies—any liability or wrongdoing. However, like the plaintiff and his attorneys, defendant recognizes the cost and delay associated with further litigation, and the risk inherent in all lawsuits. As such, defendant agreed to enter into a settlement to avoid the risk, costs and disruption of ongoing litigation and to settle the outstanding claims against them.

      The Court has not decided in favor of plaintiffs or the defendant. Instead, at a mediation, the parties agreed to settle the case instead of proceeding further in litigation.

  5. How do I know if I am part of the settlement?

    1. Individuals are eligible to participate in the settlement if EEG’s records show they:

      1. Worked for EEG as either (i) an hourly exempt computer technician, or (ii) an hourly non-exempt employee; and

      2. Also received per diem payments and worked over 40 hours in one or more workweeks between October 11, 2019, and October 23, 2022, while working in those positions.

      You are eligible to participate in the settlement if you received a notice.

  6. What does the proposed settlement provide?

    1. Defendant has agreed to pay a total settlement amount of up to $318,000.00 (the “Gross Settlement Amount”). The Gross Settlement Amount provides payments to any eligible individuals who choose to join the settlement, the employer’s share of payroll taxes associated with those payments, plaintiffs’ attorneys’ fees and litigation expenses, a general release award to plaintiff Evan Denham, and certain costs associated with the administration of the settlement. The amount remaining after the payment of plaintiffs’ attorney’s fees and expenses, the general release award, and the costs of administering the settlement is referred to as the “Net Settlement Amount.” The Net Settlement Amount, less required tax withholdings, will be available for distribution to individuals who join the settlement as settlement payments. The settlement distribution process is being administered by a neutral settlement administrator, American Legal Claim Services, that was approved by the Court.

  7. What can I get from the proposed settlement?

    1. If you choose to join this settlement by submitting the Claim Form and Release provided along with your notice on or before June 28, 2023, you will receive a settlement payment. Your estimated settlement payment can be found in your personalized notice. Settlement payments will be mailed to participating individuals after all eligible individuals have had an opportunity to submit a claim. This process could take several months.

      Each settlement payment will be separated into two amounts: fifty percent (50%) shall be allocated to the claims asserted in the lawsuit for unpaid wages; and fifty percent (50%) shall be allocated to the claims asserted in the lawsuit for liquidated damages. The portion allocated to claims for unpaid wages will be subject to all deductions authorized or required by law, just as if it were a regular paycheck. These include, but are not limited to: local, state and federal taxes, garnishments, child support orders, and tax levies/liens. The portion allocated to such claims for unpaid wages will be reported on an I.R.S. Form W-2. The portion allocated to liquidated damages will be treated as non-wage income and reported on an I.R.S. Form 1099. No taxes will be withheld from payments treated as non-wage income if you complete and return an I.R.S. Form W-9 along with your Claim Form and Release. If you do not return an I.R.S. Form W-9 the non-wage portion of any settlement payment will be subject to backup withholdings at a rate of twenty-four percent (24%).

      Additionally, the portion of the total settlement fund that is approved by the Court to pay attorneys’ fees and litigation expenses is considered to be payments made on behalf of all participating plaintiffs. Therefore, your pro rata portion of that amount will be reported as income to you on a separate I.R.S. Form 1099.

  8. What am I giving up in the settlement?

    1. If you join the settlement by submitting a Claim Form and Release on or before June 28, 2023, the Court’s orders in this lawsuit will be binding upon you and you will be barred from bringing any action against EEG (including its predecessors, successors, parents, subsidiaries, and divisions, including their respective owners, officers, directors, employees, and agents ) that relate to hours worked or the payment of wages, except to the extent that any such claims may not be waived as a matter of law.

      This release of claims against EEG specifically includes, without limitation:

      any and all past and present matters, disputes, claims, demands, rights, liabilities, expenses, damages, losses of any kind, and causes of action, whether at common law, pursuant to statute, ordinance, or regulation, in equity or otherwise, and whether arising under federal, state, or other applicable law, which you have or might have, known or unknown, asserted or unasserted, of any kind whatsoever, that relate to hours worked or the payment of wages, except to the extent that any such claim may not be waived as a matter of law. The claims released by you specifically include, but are not limited to (i) any and all claims asserted in this Action; (ii) any and all claims for unpaid wages, minimum wages, overtime, late payment of wages, improper deductions, or any other wage-related claims, damages or relief of any kind, including recordkeeping related to wages, and including but not limited to those arising under the federal FLSA, 29 U.S.C. § 201, et seq., the Virginia Overtime Wage Act, Va. Code §§ 40.1-29.1 (2021) & 40.1-29.2 (2022), the Virginia Wage Payment Act, Va. Code § 40.1-29, the Virginia Minimum Wage Act, Va. Code §§ 40.1-28.8, et seq., and other equivalent state and local statutes or ordinances; (iii) any and all claims under state and federal law for earned wages, overtime, missed or interrupted meal breaks, and/or travel expenses, including such claims for breach of express contract or labor agreement, implied contract, money had and received in assumpsit, quantum meruit/unjust enrichment, fraud, negligent misrepresentation, equitable estoppel, promissory estoppel, conversion, and/or failure to keep accurate records, (iv) any and all wage-and-hour laws or wage-related claims of any kind under other laws, including but not limited to any and all such claims pursuant to other federal, local, or other states’ laws and/or regulations.

      This release has no application to any claim of any type arising on or after February 27, 2023.

      Aside from the payments being made pursuant to this settlement, individuals participating in the settlement may not accept, recover, or receive any back pay, liquidated damages, statutory penalties, other damages, or any other form of relief based on any claims asserted, settled, or released in this settlement, which may arise out of, or in connection with any other individual, class, collective, representative, administrative, or arbitral proceeding pursued by any individual, class, union, or federal, state or local governmental agency against Defendant.

  9. Are my legal rights affected if I do not join the settlement?

    1. Yes. If you do not join this settlement by submitting the Claim Form and Release on or before June 28, 2023, you will not receive a settlement payment. However, you also will not release any claims that you may have against EEG and will not be bound by the Court’s order in this lawsuit.

  10. Does the plaintiff who brought the lawsuit receive any additional payment?

    1. Yes. The Court approved a “General Release Award” payment of $5,000.00 to plaintiff Evan Denham. In exchange for this additional payment, Denham is subject to additional conditions as part of the settlement  Specifically, he provided EEG a broader release of any and all claims he may have against the company in connection with his employment, agreed to keep all non-public terms of the settlement confidential, and agreed not to apply for future employment with EEG.

  11. How can I join the settlement?

    1. In order to join the settlement and receive a settlement payment, you must timely complete, and sign the Claim Form and Release and return it to the settlement administrator by email ([email protected]) or U.S. Mail. Additionally, if you opt to join the settlement, you must complete and return an I.R.S. Form W-9 in order to avoid back-up tax withholdings on the portion of your settlement attributable to non-wage income.

      In order to be considered timely, the completed Consent Form and Release and I.R.S. Form W-9 must be postmarked or received by the settlement administrator by no later than June 28, 2023.

      If you lose, misplace, or need another copy of these form, you can contact the settlement administrator by email at [email protected] or by telephone at (833) 404-4961 to request a new copy.

  12. How can I exclude myself from the settlement?

    1. If you do nothing, you will not be included in the settlement. Anyone who does not timely submit the enclosed Claim Form and Release will not join the settlement. If you do not join the settlement, you will not receive a settlement payment, but you also will not release any claims you may have against EEG or be bound by the orders of the court in this lawsuit.

  13. Do I have a lawyer in this case?

    1. Plaintiff Evan Denham is represented in this case by the following attorneys:

      Craig J. Curwood, Esq.
      Zev Antell, Esq.
      140 Virginia Street, Suite 302
      Richmond, VA 23219

      These attorneys have negotiated the settlement terms for all potential participants in the settlement. If you submit a Consent Form and Release, you will agree to be represented by Butler Curwood, PLC in connection with the lawsuit filed by plaintiff Evan Denham and this settlement. 

  14. How will the lawyers be paid?

    1. Under the terms of the parties’ settlement agreement, and as approved by the Court, plaintiff’s attorneys, Butler Curwood, PLC, will be paid 35% (i.e., $111,300.00) of the Gross Settlement Amount to compensate them for their attorneys’ fees, for investigating the facts, litigating the case, and negotiating the settlement. They also will receive reimbursement of their out-of-pocket costs and expenses in connection with the lawsuit. You will not have to pay the attorneys any of their fees, costs or expenses. You should consult with a tax professional regarding the taxability and any applicable deductions regarding the payment of such attorneys’ fees.

  15. If I am a current employee, will I experience any retaliation or discrimination for participating in the settlement?

    1. No. It is against the law to retaliate or discriminate against an employee who decides to participate in this settlement. Moreover, EEG has a strict non-retaliation policy. Defendant will not discriminate or retaliate against you in any way because of your decision to participate in the lawsuit or this settlement.

  16. What if my address changes?

    1. It is your responsibility to inform the settlement administrator of your correct address. Please mail any change of address, along with the last four digits of your Social Security Number, former address, and new address to Denham v. EEG Settlement, c/o Settlement Administrator, PO Box 23678, Jacksonville, FL 32241-3678 or call (833) 404-4961.

      You can also use the Update Address section of this website using the credentials found on your personalized notice.

  17. How can I get more information about the settlement and the case?

    1. This notice summarizes the basic terms of the settlement. Further details of the settlement are contained in the parties’ Joint Stipulation and Settlement Agreement. You may contact the Settlement Administrator at (833) 404-4961 to request a copy of the Joint Stipulation and Settlement Agreement. If you want to ask questions, you may also contact Plaintiff’s counsel whose contact information is provided in Section 13.