Fighting for Fair Pay

Kellogg Company, Keebler Foods Company II – Smith v. Kellogg

On July 13, 2017, Getman, Sweeney & Dunn filed a federal lawsuit to recover unpaid overtime wages for employees of Kellogg Company (along with Kellogg Sales Company) throughout the country.

Status Reports

Settlement Administrator’s Mailing of Settlement Checks on August 3, 2021 – POSTED August 6, 2021

The Settlement Administrator informed us that they mailed the settlement checks on August 3.. If you have any questions, please contact the Analytics Consulting. You can reach them at 1-833-352-1354 or at info@KelloggFLSASettlement.com.

Final Settlement Approval Granted - Posted June 17, 2021

On June 14, 2021, Judge Maloney granted final approval of the FLSA settlement. The Court reserved decision on the attorneys’ fees and costs, but that should not delay payments to everyone who is participating in the settlement. We expect payments will be sent by approximately July 31, 2021. This timeframe includes (1) 33 days to allow for any appeals, and (2) assuming that there are no appeals, 14 business days after the appellate period to distribute the payments.

If you have moved or changed your contact information at any time after you received your settlement notice in the mail, please contact the claims administrator – Analytics Consulting – to make sure they have your current contact information in order to mail the checks. You can reach them at 1-833-352-1354 or at info@KelloggFLSASettlement.com.

Settlement Update - Posted June 1, 2021

The Settlement Notice period for Opt-In plaintiffs and Class members came to a close on May 14, 2021. There were 494 Class members who filed a claim form. In accordance with the court’s scheduling order, on May 28, the parties jointly filed a motion asking the court to grant final approval to the settlement.

We will post another update once we receive the decision from the court. Thank you for your patience.

440 Class Members Filed Settlement Claim Forms - Posted May 11, 2021

Less than a week is left to return your claim form, and participate in the settlement! As of today, 440 class members returned their settlement claim forms. If you know someone who hasn’t filed a claim form yet, let them know they can find out how to participate in the settlement by visiting the settlement administrator’s website: https://kelloggflsasettlement.com/. The deadline to participate is this Friday, May 14, 2021.

329 Class Members Filed Settlement Claim Forms! - Posted April 13, 2021

About one month is left to return your claim form, and participate in the settlement! As of yesterday, 329 class members returned their settlement claim forms. If you know someone who hasn’t filed a claim form yet, let them know they can find out how to participate in the settlement by visiting the settlement administrator’s website: https://kelloggflsasettlement.com/. The deadline to participate is Friday, May 14, 2021.

274 Class Members Filed Settlement Claim Forms! - Posted April 8, 2021

Settlement claim forms keep coming in! So far 274 class members returned their settlement claim form. If you know someone who hasn’t filed a claim form yet, let them know they can find out how to participate in the settlement by visiting the settlement administrator’s website: https://kelloggflsasettlement.com/. The deadline to participate is Friday, May 14, 2021.

154 Class Members Filed Settlement Claim Forms! - Posted April 5, 2021

Over the first two weeks of the notice period, 154 class members returned a settlement claim form. This is excellent level of early participation. For those who haven’t filed a claim form yet, remember the deadline to participate in the settlement is Friday, May 14, 2021. You can find a claim form and more information about the settlement here.

Settlement Notices are in the Mail! - Posted March 17, 2021

Great News!

On March 15, 2021, Getman, Sweeney & Dunn mailed and emailed Notices of Settlement to all Named Plaintiffs and opt-ins. In addition, the Settlement Administrator – Analytics Consulting, LLC – mailed the Notice of Settlement and Claim form to all potential class members who are not currently in the case and are eligible to participate in the settlement. Please read the notice carefully; it contains your estimated individual settlement amount, your rights associated with the settlement, and deadlines by which you must act.

For more information regarding the settlement or to access the consent to sue form, you can visit the settlement administrator’s website: https://www.kelloggflsasettlement.com/. If you are a potential class member not currently in the case and want to participate in the settlement, you may download a consent to sue form and mail or email it back to the Settlement Administrator. There are deadlines by which you must act, so please read the Notice carefully.

We will also post periodic updates here as well.

Settlement Approval Granted! – Posted March 8, 2021

On March 1, 2021, Judge Maloney granted preliminary approval of the settlement. Click here to read the Court’s order. We’re in the process of working with Kellogg’s counsel and the Settlement Administrator to mail out the notices to all class members. We will also email or mail the settlement notice to current Named and opt-in Plaintiffs. The Notice will contain individual estimated settlement amounts. We will update our website after the notices are sent out.

Click here to review the settlement agreement.

Settlement Agreement and Joint Motion Submitted – Posted December 3, 2020

The finalized and signed settlement agreement between the parties as well as Parties’ Joint Motion for Preliminary Approval of an FLSA Settlement were submitted to the Court on Wednesday, November 25th. After preliminary approval is granted, a notice will be issued to all settlement-eligible plaintiffs with their individual estimated settlement recovery amount. We are awaiting the Court’s ruling on the Motion. Please check back here for further updates.

Settlement Term Sheet Finalized, Settlement Notification Filed With The Court - Posted October 7, 2020

Since June 2020, we have been working hard with Kellogg’s attorneys to finalize the terms of a settlement that resolves the claims pending in the federal court case. After months of negotiations, on October 5, 2020, the parties have agreed to a term sheet. This means that we reached consensus on the basics of the settlement. We also notified the Court in the Western District of Michigan of the settlement. You can find the notice here.

Next, we will draft the settlement agreement.  After we finalize the settlement agreement, we will submit it to the Court for preliminary approval. Based on the parties’ agreement, we will then file a motion for preliminary approval no later than November 6, 2020.

We will keep you informed about the next steps. We tremendously appreciate your patience as we work on your behalf to bring the case to its successful resolution. Stay safe.

Mediation Update – Posted March 3, 2020

Counsel for Plaintiffs/Claimants and Counsel for Kellogg met on Monday, February 24, 2020, in New York City where the parties discussed potential settlement of the claims. Unfortunately, the case did not settle during the mediation. We will continue to discuss settlement with Kellogg while we continue to litigate the case.

Mediation Update -- Posted January 23, 2020

Due to a scheduling conflict on Kellogg’s behalf, the mediation scheduled for January 24, 2020 is now cancelled. The parties are working together to find another mutually agreeable date. We will provide an update when we have another date.

We will keep you posted regarding any case update and/or developments here.

Kellogg Mediation – Posted January 16, 2020

The mediation was rescheduled for January 24, 2020. We will attend a mediation with Kellogg’s attorneys and corporate representatives in Detroit, Michigan before a mutually-agreed-upon Mediator, retired Chief Judge, Gerald E. Rosen. This is our second attempt at potentially resolving the arbitration and federal court claims.

We will provide an update about the outcome of the mediation by January 28.

Mediation Postponed – Posted January 7, 2020

The mediation that was scheduled to occur on January 7, 2020, has been postponed at Kellogg’s request. Our understanding is that this is due to a personal issue on Kellogg’s side and does not reflect its settlement posture. We expect to reschedule the mediation and will provide an update as soon as we know.

Mediation Update – Posted December 27, 2019

On January 7, 2020, we will attend a mediation with Kellogg’s attorneys and corporate representatives in Detroit, Michigan before a mutually agreed-upon Mediator, retired Chief Judge, Gerald E. Rosen. This is our second attempt at potentially resolving the unpaid overtime cases for the Kellogg snacks workers who brought claims in arbitration and federal court, and the other class members.

We will provide with an update about the outcome of the mediation by January 9.

MEDIATION UPDATE – Posted May 20, 2019

On May 14, 2019, Getman, Sweeney & Dunn attended a mediation session with Kellogg’s attorneys and representatives in Detroit, MI before a mutually agreed-upon Mediator, retired Chief Judge, Gerald E. Rosen. Unfortunately, we did not reach a settlement.

While we are disappointed that a settlement did not occur at this juncture, Getman, Sweeney & Dunn remains strongly committed to litigating the federal case and arbitrations through to a favorable conclusion. We are now in the process of preparing to continue litigation, completing the discovery in both arbitration and Federal court, and resuming the process of tracking deadlines as well as filing various required motions.

Please check back for further details. TMs, RSRs, KSRs, and RSMs may still protect their overtime claims and join the case by filing a Consent to Sue form.

Parties Agree to Stay Case to Pursue Mediation – Posted April 5, 2019

The parties have agreed to a 45-day stay of the federal court case to pursue mediation, which is a meeting of the parties outside the court in order to try to resolve the case with the help of a neutral mediator.

All Plaintiffs should be sure we have their most up-to-date contact information. We will post more information about the mediation when we know more.

Kellogg Service Reps may send us a completed and signed Consent to Sue. If you send us a Consent to Sue, our team will promptly contact you to gather more information.

Initial Court Conference Schedule – Posted February 21, 2019

Magistrate Judge Kent scheduled a conference with the parties for February 25. During the conference we expect the Court to set the various deadlines, including for the completion of discovery and a potential trial date.

After Plaintiffs filed their motion to conditionally certify a FLSA (Fair Labor Standards Act) Collective Action and to issue notice, Kellogg asked the Court to stay the case so it could take discovery. In part because of the prejudice to workers who are not part of the case, Plaintiffs opposed Kellogg’s motion. Magistrate Judge Kent will address Kellogg’s request during the February 25 conference.

Currently, there are 76 plaintiffs who have joined the Federal court case.

Kellogg Answers the Amended Complaint – Posted January 18, 2019

Kellogg answered the amended complaint on January 10, 2019. The “answer” is the document that responds to the allegations in Plaintiffs’ complaint and raises various defenses. You can view Kellogg’s answer here.

Plaintiffs Move to Send Notice of the Case to All RSRs, TMs, RSMs, and KSRs – Posted January 18, 2019

Plaintiffs filed a “conditional certification” motion, asking the Court to approve this case as a “collective action” under the FLSA and to approve a notice to go out to RSRs, TMs, RSMs, and KSRs informing them about the case and giving them the opportunity to join the case. Kellogg’s opposition to the conditional certification motion is due on January 30. You can read Plaintiffs’ motion here.

Court Grants Request to Transfer Case to Western District of Michigan – Posted December 10, 2018

On December 3, 2018, Judge Gordon from the United States District Court of Nevada, where we originally filed the case, approved our request to amend to add new named plaintiffs who did not sign arbitration agreements. He also granted our request to transfer the case from the District Court of Nevada to the Western District of Michigan. The transfer took place on the same day it was granted, and the case is now open. This means we can proceed with the case immediately, rather than having to first wait for the transfer to take place.

The transfer allows the plaintiffs to move forward with their overtime claims. The case has been assigned to U.S. District Judge Paul L. Maloney and U.S. Magistrate Judge Ray Kent. If you have already joined the Smith v. Kellogg case, you do not have to re-send a consent to sue form to continue your claims in the Western District of Michigan. Your claims transferred with the case.

If you have not yet joined the case and would like to, you can do so by filling out a Consent to Sue form and returning it to our office.

More TMs, RSRs, KSRs, and RSMs Join the Case – Posted July 20, 2018

Over 140 Plaintiffs have joined the case so far, and more continue to join every week!
The case remains stayed (on hold) pending the arbitrator’s decision about whether the Named Plaintiff must bring his claims in arbitration or continue in the court system. TMs, RSRs, KSRs, and RSMs may still protect their overtime claims and join the case by filing a Consent to Sue form.

More TMs, RSRs, KSRs, and RSMs Join the Case – Posted June 7, 2018

Over 110 Plaintiffs have joined the case so far, and more continue to join every week!
The case remains stayed (on hold) pending the arbitrator’s decision about whether the Named Plaintiff must bring his claims in arbitration or continue in the court system. TMs, RSRs, KSRs, and RSMs may still protect their overtime claims and join the case by filing a Consent to Sue form.

TMs, RSRs, KSRs, and RSMs Continue to Join the Case – Posted May 17, 2018

Over 90 have joined the case so far!

The case remains stayed (on hold) pending the arbitrator’s decision about whether the Named Plaintiff must bring his claims in arbitration or continue in the court system. TMs, RSRs, KSRs, and RSMs may still protect their overtime claims and join the case by filing a  Consent to Sue form.

Kellogg Case Sent to Arbitration for Arbitrator to Determine the Arbitrability – Posted March 30, 2018

On February 15th, the Court held that an arbitrator, rather than a judge, will now decide if the Named Plaintiff’s claims need to be heard in arbitration or by the court. Arbitration is a way of privately resolving disputes outside of the court system.

In addition, the Court ruled that the case in Nevada will be stayed (put on hold) pending the arbitrator’s decision. As a result, Plaintiffs’ motion to conditionally certify a Fair Labor Standards Act collective action and issue notice was denied without prejudice. Depending on the arbitrator’s decision, we may be able to re-file the motion. TMs, RSRs, KSRs and RSMs may still protect their overtime claims and join the case by filing a Consent to Sue form.

KELLOGG’S RESPONSE TO PLAINTIFFS’ CONDITIONAL CERTIFICATION MOTION IS STAYED PENDING JUDGE’S ORDER ON KELLOGG’S MOTION TO COMPEL ARBITRATION – Posted February 13, 2018

Over 50 RSRs, KSRs, TMs, and RSMs have joined the case!

In order to allow others to learn about the case and preserve their unpaid overtime claims by filing a Consent to Sue form, we asked the Judge for permission to conditionally certify the class to send notice to RSRs, KSRs, TMs, and RSMs who worked for Kellogg within the last three years. However, because the Judge has stayed (i.e. put on hold) Kellogg’s response to our request, if RSRs, KSRs, TMs, and RSMs want to protect their overtime claims, it is important they promptly file a Consent to Sue form. Otherwise, they risk losing unpaid overtime wages to the statute of limitations.

The Judge stayed Kellogg’s response because he wants to determine the outcome of another motion: Kellogg’s motion to compel arbitration. In that motion, Kellogg asked the Judge to dismiss the case and send the Named Plaintiff to arbitration because he signed an agreement that contained an arbitration provision. We opposed Kellogg’s motion and argued that the arbitration provision is unenforceable.

We now await the Judge’s decision on Kellogg’s motion to compel arbitration. We will update you when we are notified of that decision.

KELLOGG SETTLES WASHINGTON CASE BUT THIS CASE CONTINUES – Posted December 20, 2017

Despite settling the Thomas v. Kellogg case in the Western District of Washington, Kellogg continues to litigate this case. That means that this case remains open to Territory Managers, RSR-DSDs, RSMs, KSRs and related titles in the Snack Division who worked in the DSD Model after July 14, 2014, and were paid on a salary basis without overtime compensation for working more than 40 hours in a workweek. To join the case, you must fill out and return a Consent to Sue form to Getman, Sweeney & Dunn. If you have any questions, call us at 845-255-9370. The call is free and confidential.

Answers to Common Questions – Posted 7/31/17

Do I have to pay to join the case?

No. There are no up-front charges or costs to joining this case. The attorneys are handling this case on a contingent basis and will only be paid a fee when we win through a settlement or final judgment. And, under both the federal and state wage-and-hour law, when plaintiffs win an overtime case, defendants must pay the plaintiffs’ costs and attorneys’ fees.

Which employees can be part of this lawsuit?

All Kellogg Sales Representatives, Retail Sales Representatives, Territory Managers, and Retail Sales Managers who have worked for Kellogg at any time during the prior three years in a non-supervisory capacity, are eligible to join the case and bring their claims under federal law. To join the case, you must fill out and return a Consent to Sue to counsel. Click here for the Consent to Sue form.

What work locations are covered by this lawsuit?

The claims in this lawsuit cover the entire United States. If you worked for Kellogg anywhere in the country, you may join this case.

What claims are covered in this case?

The lawsuit at present covers claims for overtime pay under the federal Fair Labor Standards Act (“FLSA”). The specific violations claimed are that Kellogg did not pay the class members overtime wages even though the law requires it to do so.

How do I join the case?

You can affirmatively join the case by submitting a completed Consent to Sue to us. Once we receive your Consent to Sue, we will file it with the court and you will have officially joined the lawsuit. Click here for the Consent to Sue form.

What damages are sought?

Damages sought under the FLSA include back overtime pay, an equal amount of liquidated damages, attorneys’ fees, and any costs of litigating the case.

How far back can claims be made?

Under the FLSA, you are entitled to make claims for the period extending back three years (two years if the employer is ultimately found not to have acted willfully) from the date your Consent to Sue Form is filed in Court. This three (or two) year period is called the “statute of limitation.”

Can I wait to file my Consent to Sue form?

You are not part of the case until your Consent to Sue form is returned to the plaintiffs’ attorneys and then filed with the Court. If you delay in filing the Consent to Sue, part or all of your FLSA claims may be barred by the “statute of limitation.”

Can Kellogg fire me or take action against me for joining the case?

The law prohibits retaliation for joining an overtime lawsuit. If any employee suffered retaliation, Kellogg could be liable for at least double the injury caused to the employee, and possibly additional damages such as punitive damages. Notify us immediately if you think any retaliation has occurred. Retaliation is rare in overtime cases, because an employer can suffer such serious penalties.

Can Kellogg contact me about this case?

Employers are generally permitted to contact unrepresented employees about a case, that is, until they have filed a consent to sue. Nevertheless, employers and their attorneys make it a regular practice to speak with current employees. Even though they are not permitted to do so, employers and their counsel have in many cases tried to discourage employees from joining wage hour cases. And they have tried to get employees to make a statement that can later harm their ability to join a lawsuit or otherwise interfere with their claims. Here are the rules for employer attorney contact with employees about a case: First, employers’ attorneys should advise employees that they should secure their own counsel before speaking with the attorney. Attorneys for the employer may not give employees legal advice. Employers’ attorneys are not permitted to give false or misleading information about a case. They are required to inform an employee that they represent the company and that the employee is not required to give a statement. Statements that employees give to employers or their lawyers are generally sought to defend the company against the suit seeking back wages the company may owe its employees, including wages owed to the employee giving the statement. Getman, Sweeney & Dunn strongly believes that employees who may have back wage claims should not give statements to an employer or its attorneys without receiving legal advice first. If you are asked to provide information or give a statement, you can contact Getman, Sweeney & Dunn immediately. The call is free and confidential.

Case Inquiry

Fill out this form if you would like someone from GSD to contact you to provide more information. Please note that if you would like to join the lawsuit, you must fill out the "Consent to Sue" form linked in the "How to Join this Case" section.