Mark Comin, et al. v. International Business Machines Corporation

This Settlement covers all persons residing or who resided in California while working for IBM on a commissions incentive plan at any time between November 4, 2015 and March 2, 2023 (“Class Member(s)”). According to IBM’s records, you are a Class Member. The Settlement also covers Class Members who are also “Subclass Members,” defined as those Class Members whom Plaintiffs allege were not paid the amount of commissions reflected in the individual’s commissions formula.

A Court authorized the Notice because you have a right to know about a proposed settlement of a class action lawsuit, and about all of your options, before the Court decides whether to approve it. The Notice explains the lawsuit, the Settlement, your legal rights, the benefits that are available, who is eligible to receive them, and how to get them.

The case is captioned Mark Comin, et al. v. International Business Machines Corporation, Case No. 3:19-cv-07261-JD, and is currently pending in the United States District Court for the Northern District of California (“Action” or "Lawsuit").

On March 2, 2023, the Court preliminarily approved the Settlement and directed the parties to issue the Notice. The Court will hold a Final Approval hearing on August 10, 2023 at 10:00 a.m., in Courtroom 11 of the United States District Court for the Northern District of California, located at San Francisco Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102. The Final Approval Hearing may be continued to another date without further notice.

This Lawsuit was brought by former employee Mark Comin and current employee Mark Briggs (collectively, “Plaintiffs”). The operative consolidated complaint asserts three claims for relief: (1) violation of the California unfair competition law; (2) unjust enrichment; and (3) violation of California’s Labor Code Private Attorneys General Act (“PAGA”).

IBM denies all allegations in the Lawsuit and contends it complied with the California Labor Code and all other applicable laws. The Settlement is not an admission of any wrongdoing by IBM or an indication any law was violated. The Court has not ruled on the merits of the claims asserted in the Lawsuit. By approving the Settlement and issuing the Notice, the Court is not suggesting which side would win or lose this case if it went to trial.

The Court did not decide in favor of Plaintiffs or IBM. There was no trial. However, to avoid additional expense, inconvenience, and risks of continued litigation, Plaintiffs and IBM have concluded that it is in their respective best interests and the interests of the Class Members and Subclass Members to settle the Action on the terms summarized in the Notice.

This Settlement was reached after an exchange of extensive information about the facts and legal arguments in support of, and against, all of the claims raised in the lawsuit. By settling the lawsuit, the parties avoid the burden, expense, and uncertainty of litigation.

If the Court grants final approval of the Settlement, IBM will pay $4,750,000 (referred to as the “Settlement Payment”). The Parties agreed to the following payments from the Settlement Payment:

Penalties to the California Labor Workforce and Development Agency. $200,000 of the Settlement Payment will be allocated to Plaintiffs’ penalty claims under PAGA. Of this amount, 75% (or $150,000) will be paid to the California Labor Workforce Development Agency (the “LWDA”) in satisfaction of the claims for penalties under PAGA and the remaining 25% ($50,000) will be distributed pro rata to the PAGA Group, which is all Class Members that were employed at any time between September 5, 2020 and March 2, 2023.

Attorneys’ Fees and Costs. Class Counsel will ask for fees and litigation costs not to exceed $1,617,729.71. The Court will determine the actual amount awarded to Class Counsel as attorneys’ fees and costs, which will be paid from the Settlement Payment.

Enhancement Award to the Class Representatives. Class Counsel will ask the Court to award Class Representative Enhancement Payments of up to $10,000 each to Plaintiff Comin and Plaintiff Briggs (the “Class Representatives”) in recognition of their effort in prosecuting this case, for undertaking the risks of payment of costs in the event of an unsuccessful outcome of this Lawsuit, and for providing a general release of claims.

Net Settlement Amount. The exact amount of attorneys’ fees and litigation costs, Class Representative Enhancement Payments, and the LWDA payment will be determined by the Court at the Final Approval hearing. The remaining portion of the Settlement Payment, the “Net Settlement Amount” or “NSA,” is estimated to be $2,912,270,29. The NSA will be paid to all Class Members and Subclass Members who do not request to be excluded (“opt out”) of the Settlement. A claim form is not required.

Every Class Member and Subclass Member who does not opt out will be paid a portion of the Net Settlement Amount.

The amount that a Class Member/Subclass Member will receive, referred to as “Individual Settlement Payment,” will be determined as follows:

• Each Class Member shall be paid a flat $300 payment.
• Each Subclass Member will receive an additional payment of allegedly unpaid commissions based on a pro rata distribution of the remaining NSA after the Class Member Individual Settlement Payments are calculated, based on the calculation method described in Section IV.B.4 of the Settlement Agreement, available under the Case Documents tab of this website.

The Individual Settlement Payments will be reduced by applicable income withholdings and taxes as set forth in the Settlement Agreement. For tax purposes, the Individual Settlement Payments are characterized as 100% wages. This means that the payment you receive will be treated like pay for hours worked and will have taxes deducted like any other paycheck. If you are also a PAGA Group Member, 100% of your individual share of the PAGA Penalty Payment shall be allocated to alleged civil penalties. The Settlement Administrator will issue you any tax forms as may be required by law for all amounts paid pursuant to this Settlement. The Settlement Administrator, IBM and its counsel, Plaintiffs and Class Counsel, and the Court cannot provide you with tax advice. Accordingly, you should consult with your tax advisor concerning the tax consequences and treatment of payments under this Settlement.

No payments to the Class Representatives, Class Members, Class Counsel, or the State of California will be made until after the Effective Date as defined in the Settlement Agreement.

Your individual share of the Settlement Amount will be based on the allocation described above. You may or may not be a Subclass Member. In calculating the amount of your payment, the Settlement Administrator has relied on work records provided by IBM. Based on this information, your individual share of the Settlement is estimated to be the amount provided to you in your Notice. This amount is only an estimate, and the actual amount you receive may be more or less than the estimated amount. Taxes and withholdings will be deducted from your individual share as described above. No payments will be made if the Court does not grant final approval of the Settlement.

If you do nothing, you will automatically receive your Individual Settlement Payment after the Court grants final approval of the Settlement. You must, however, notify the Settlement Administrator of any change in your name, mailing address and/or telephone number. It is your responsibility to keep the Settlement Administrator informed of any change in your address. Your Individual Settlement Payment will be mailed to the last known address the Settlement Administrator has on file for you. Settlement Payment checks should be deposited soon after receipt. If your check is lost or misplaced, you should immediately contact the Settlement Administrator to request a replacement. Checks undeliverable or uncashed after 180 days of the original mailing date will be sent to cy pres recipient, State Bar of California Justice Gap Fund, or will be redistributed pro rata in accordance with the calculation method described in Section IV.B.4 of the Settlement Agreement if the total amount of uncashed checks is greater than $50,000.

If the Court approves the Settlement, the Court will enter judgment, and the judgment and Settlement Agreement will bind all Class Members who have not timely opted out of the Settlement and will bar all such Class Members from bringing certain claims against IBM as described below. Specifically, you will be giving up or “releasing” the claims described below:

Release of Claims: As more fully explained in the Settlement Agreement, by operation of the Final Approval and Final Judgment, and except as to such rights as may be created by the Agreement, Plaintiffs and each of the Class Members (except for Class Members who timely opt out of the class action portion of the Settlement) shall waive, fully release and forever discharge the Released Parties from any and all claims, rights, demands, liabilities, and causes of action of any kind, arising from the alleged violation of any provision of common law, California law and/or federal law which was or could have been raised in the Action, including but not limited to claims based on California Labor Code sections 201, 202, 203, 204, 226, 226.3, 558, 1174, 1194, 1197, 1197.1, 1198, 2751, 2698 et seq., California Code of Regulations, Business & Professions Code section 17200-17208, any and all claims for unpaid commissions, claims for breach of contract (express or implied), unjust enrichment, promissory estoppel, fraud, misrepresentation (negligent or intentional), or any related damages, penalties, restitution, disgorgement, interest or attorneys’ fees, and that arose on or before the date of final settlement approval (the “Settled Claims”). Plaintiffs and Class Members shall be permanently barred and enjoined from the institution or prosecution of any and all Settled Claims against the Released Parties, except as to such rights or claims as may be created by the Settlement, subject to the continuing jurisdiction of the Court.

“Released Parties” means Defendant IBM and its former and present employees, directors, shareholders, officers, owners, attorneys, agents, insurers, agents, successors, assigns, parents, subsidiaries, affiliates, or legal representatives and any individual or entity which could be jointly liable with IBM and all persons or entities acting by, through, under, or in concert with any of them.

If you do not want to participate in the Settlement, you should exclude yourself from this case (that is, “opt out” of the Settlement). However, it is important to know that your right to opt out applies only to the class action portion of the Settlement and that no opt-out right applies to the settlement of PAGA claims in the Action.

To opt out and exclude yourself from the class action portion of the Action, you must mail a signed letter to the Settlement Administrator at the following address on or before July 3, 2023. No Request for Exclusion forms postmarked after this date will be valid.

Comin v. International Business Machines Settlement Administrator
P.O. Box 990
Corte Madera, CA 94976-0990

The signed letter must state your name, telephone number, current address, last four digits of your Social Security number, and the following statement: “I, <<FullName>>, voluntarily choose not to participate in the settlement of the class action against International Business Machines Corporation and hereby waive any rights I may have to participate in the class settlement in the federal court lawsuit entitled Mark Comin, et al. v. International Business Machines Corporation, U.S.D.C. Case No. 3:19-cv-07261-JD.”

Requests to opt out that do not include all required information will be deemed null, void, and ineffective.

If you don’t think the Settlement is fair, you can object to the Settlement and tell the Court you don’t agree with the Settlement or some part of it. To do so, you must mail or file a written statement of objection to the Clerk of the Court. To be considered, the objection must state whether it applies only to the objector, to a specific subset of the Class, or to the entire Class, and also state with specificity the grounds for the objection. Furthermore, the objections must be submitted to the Court either by mailing them to the Class Action Clerk, United States District Court for the Northern District of California, or by filing them in person at any location of the United States District Court for the Northern District of California, and be filed or postmarked on or before July 3, 2023. The written statement should also include the name of this action (Mark Comin, et al. v. International Business Machines Corporation, United States District Court for the Northern District of California, Case No. 3:19-cv-07261-JD). If you intend to appear at the Final Approval Hearing and wish to speak at the hearing, you must include that in your statement. You do not have to be represented by a lawyer to object. However, if you choose to retain a lawyer to represent you, you will be solely responsible for any attorneys’ fees and costs incurred.

Your objection must be received no later than July 3, 2023 or you. will be deemed to have waived any objections.

The Court has scheduled a Final Approval Hearing on October 12, 2023, in Courtroom 11 of the United States District Court for the Northern District of California, located at San Francisco Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102. The Court will review the proposed Settlement and decide whether it is fair, reasonable, and adequate, and whether it should be finally approved. You are welcome, but not required, to attend this hearing, whether you agree with or object to the proposed Settlement.

The date of the Final Approval Hearing may be changed without further notice to the Class. Before attending, please confirm the date of this hearing by contacting the Settlement Administrator.

If the Court grants final approval of the Settlement, notice of final judgment will be posted on this Settlement website within seven calendar days after entry of the final order and judgment.

A complete copy of the Settlement Agreement and the Notice are available under the Case Documents tab of this website. This website will be updated periodically to update the Class on any developments in the case.

If you have questions about the Settlement or would like more information, you should contact the Settlement Administrator by calling toll-free 1-888-792-0237 or by writing to:

Comin v. International Business Machines Settlement Administrator
P.O. Box 990
Corte Madera, CA 94976-0990

You may also contact the Class Counsel listed below:

Matthew E. Lee
Jeremy R. Williams
Milberg Coleman Bryson Phillips Grossman PLLC
900 W. Morgan Street
Raleigh, NC 27603
(919) 600-5000
www.milberg.com

PLEASE DO NOT CONTACT THE COURT OR IBM'S COUNSEL ABOUT THIS NOTICE.