Fraser et al v. Nationwide Mutual Insurance Company, No. 3:2017cv03702 - Document 59 (N.D. Cal. 2018)

Court Description: STIPULATION AND ORDER Granting 56 Revised Joint Request for Approval of PAGA Settlement and Dismissal of the Action. Signed by Judge Edward M. Chen on 08/03/2018. (tmiS, COURT STAFF) (Filed on 8/3/2018)
Download PDF
Fraser et al v. Nationwide Mutual Insurance Company 1 2 3 4 5 Doc. 59 LISA K. HORGAN, Bar No. 267632 lhorgan@littler.com COURTNEY M. OSBORN, Bar No. 312011 cosborn@littler.com LITTLER MENDELSON, P.C. 333 Bush Street 34th Floor San Francisco, California 94104 Telephone: 415.433.1940 Facsimile: 415.399.8490 6 7 8 9 JAMES J. OH, (Admitted pro hac vice) joh@littler.com LITTLER MENDELSON, P.C. 321 N. Clark Street, Suite 1000 Chicago, IL 60654 Telephone: 312.795.3261 Facsimile: 312.602.3807 10 11 12 Attorneys for Defendants NATIONWIDE MUTUAL INSURANCE COMPANY and SCOTTSDALE INSURANCE COMPANY 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN FRANCISCO DIVISION 16 17 18 JULIAN FRASER, JOSEPH WUCHER, IRENE DAMSKY, KIM ZAIA, and CHRIS JACKSON as individuals and in their representative capacity, 19 Plaintiffs, Case No. 3:17-cv-03702-EMC REVISED JOINT REQUEST AND [PROPOSED] ORDER GRANTING APPROVAL OF PAGA SETTLEMENT AND DISMISSAL OF THE ACTION 20 v. 21 22 23 NATIONWIDE MUTUAL INSURANCE COMPANY, a corporation, SCOTTSDALE INSURANCE COMPANY, dba Nationwide E&S/Specialty, a corporation, 24 Defendants. 25 26 27 28 LITTLE R MEND ELSON, P .C . D ELSO N, 333 Bush Street 34th Floor San Francisco, CA 94104 415.433.1940 REVISED JOINT REQUEST AND PROP ORDER GRANTING APPROVAL OF PAGA SETTLEMENT AND DISMISSAL OF THE ACTION 1. CASE NO. 3:17-CV-03702-EMC Dockets.Justia.com 1 2 3 4 5 6 7 8 9 STEVEN G. ZIEFF (SBN: 84222) Email: sgz@rezlaw.com CHAYA M. MANDELBAUM (SBN: 239084) Email: cmm@rezlaw.com WILLIAM P. MCELHINNY (SBN: 296259) Email: wpm@rezlaw.com RUDY, EXELROD, ZIEFF & LOWE, L.L.P. 351 California Street, Suite 700 San Francisco, CA 94104 Telephone: (415) 434-9800 Facsimile: (415) 434-0513 Attorneys for Plaintiffs, JULIAN FRASER, et al. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLE R MEND ELSON, P .C . D ELSO N, 333 Bush Street 34th Floor San Francisco, CA 94104 415.433.1940 REVISED JOINT REQUEST AND PROP ORDER GRANTING APPROVAL OF PAGA SETTLEMENT AND DISMISSAL OF THE ACTION 2. CASE NO. 3:17-CV-03702-EMC 1 Plaintiffs Julian Fraser, Joseph Wucher, Irene Damsky, Kim Zaia, and Chris Jackson 2 (“Plaintiffs”) and Defendants Nationwide Mutual Insurance Company and Scottsdale Insurance 3 Company (“Defendants”), through their respective counsel of record, jointly submit and request as 4 follows: 5 1. Plaintiffs filed a Complaint against Defendant Nationwide Mutual Insurance 6 Company on or about June 28, 2017, in the Northern District of California pleading 7 ten causes of action, including a claim under the California Private Attorneys General 8 Act (“PAGA”), seeking civil penalties for the State of California. There are no class 9 action or collective action allegations in the Complaint. 10 2. On September 26, 2017, Plaintiffs filed a First Amended Complaint asserting the 11 same causes of action but adding Scottsdale Insurance Company as an additional 12 defendant. 13 3. The Parties engaged in mediation on April 2, 2018 with experienced mediator Jeffrey 14 Ross. The Parties continued negotiations with the assistance of Mr. Ross following 15 the mediation and reached a settlement. The Parties fully executed a confidential 16 settlement agreement on or about June 19, 2018. 17 4. Pursuant to the settlement agreement, the settlement amount apportioned to PAGA 18 civil penalties is $16,000.00, subject to the Court’s approval as required by Labor 19 Code section 2699(l)(2). Defendants have agreed to pay $12,000, which is 75% of 20 $16,000, to the California Labor and Workforce Development Agency following the 21 dismissal of this action. 22 5. The settlement was negotiated at arm’s-length by experienced counsel well versed in 23 the intricacies of litigation before a well-respected mediator. During the mediation, 24 Mr. Ross communicated to Plaintiffs that he believed the underlying overtime claims 25 were stronger than many of the derivative claims, such as meal and rest breaks or 26 waiting time penalties, that would require additional difficult elements of proof even 27 if Plaintiffs prevailed in establishing that they were misclassified, which would be 28 challenging in its own right. For instance, a jury could find that the Plaintiffs, who LITTLE R MEND ELSON, P .C . D ELSO N, 333 Bush Street 34th Floor San Francisco, CA 94104 415.433.1940 REVISED JOINT REQUEST AND PROP ORDER GRANTING APPROVAL OF PAGA SETTLEMENT AND DISMISSAL OF THE ACTION 3. CASE NO. 3:17-CV-03702-EMC 1 often worked from home or on the road, were capable of taking the full meal and rest 2 breaks a non-exempt employee would be entitled to. As a consequence, the overtime 3 claims and alleged damages for overtime drove Plaintiffs’ assessment of what a well- 4 calibrated settlement would be during the mediation. There are also litigation risks 5 unique to the PAGA claims. For example, if the matter were to go to trial, there is the 6 risk that the Court could exercise its discretion under PAGA to not award the full 7 measure of penalties available under that statute given the difficult exemption issues 8 underlying the alleged violations and the issues going to whether there was a good 9 faith dispute as to the exemption status of the Plaintiffs. 10 6. Nonetheless, after reaching resolution, the amount allocated to PAGA represents 11 approximately the same proportion of Plaintiffs’ computed total PAGA penalties as 12 the proportion of total computed damages allocated to Plaintiffs directly in settlement 13 of their underlying claims, when adjusted for the extra weight Plaintiffs placed on the 14 overtime claims, which they viewed to carry less litigation risk than the remaining 15 claims. The majority of the Plaintiffs were former employees at the time the case was 16 filed, and thus have very few workweeks within the one-year PAGA statute of 17 limitations period. Plaintiffs Wucher, Damsky and Fraser have 2, 11 and 22 PAGA- 18 eligible workweeks respectively. See Declaration of Steven G. Zieff in Support of this 19 Request, ¶ 7.1 7. 20 The Parties agree that the settlement is specifically limited to Plaintiffs’ claims only, 21 and does not release any PAGA claims of any other alleged aggrieved employees, to 22 the extent any such individuals exist. Defendants will not assert and waive any 23 collateral estoppel or res judicata defense that would rely on the settlement in this 24 matter (but do not waive any other collateral estoppel or res judicata defense that may 25 1 26 27 28 LITTLE R MEND ELSON, P .C . D ELSO N, 333 Bush Street 34th Floor San Francisco, CA 94104 415.433.1940 The Zieff Declaration, which includes the full length settlement agreement as an exhibit, addresses the Court’s Order (Dkt. No. 55) that the Parties provide additional detail sufficient to allow the Court to understand and assess how the PAGA allocation was calculated and the proportion of the total settlement it represents. Because it contains confidential information pertaining to the Parties’ settlement, it is filed separately and attached to an Administrative Motion to File Under Seal pursuant to Northern District Local Rules 7-11 and 79-5. REVISED JOINT REQUEST AND PROP ORDER GRANTING APPROVAL OF PAGA SETTLEMENT AND DISMISSAL OF THE ACTION 4. CASE NO. 3:17-CV-03702-EMC 1 otherwise exist) to PAGA actions brought by the State of California or aggrieved 2 employees (other than Plaintiffs) for the same claims. 3 8. Accordingly, this request for PAGA approval is to approve the settlement of 4 Plaintiffs’ individual PAGA claims, not the claims of any other alleged aggrieved 5 employees. Moreover, as this is not a class or collective action, no class action or 6 collection action notices have gone out to any other employees, and thus there is no 7 basis to presume any employees have or will forestall pursuit of their own individual 8 or PAGA claims in reliance of this case. 9 9. The Parties have further agreed to seek the dismissal of this action with prejudice as 10 to Plaintiffs and without prejudice as to other purported “aggrieved employees,” to 11 the extent any such individuals exist, with the Court to retain jurisdiction to enforce 12 the terms of the settlement until performance in full of the terms of the settlement. 13 10. settlement of any civil action filed pursuant to the PAGA. 14 15 11. Labor Code section 2699(l)(2) does not prescribe any procedure for how to request Court approval of a PAGA settlement. 16 17 Pursuant to Labor Code section 2699(l)(2), the court shall review and approve any 12. Pursuant to Labor Code section 2699(l)(2), the proposed settlement terms were 18 submitted to the California Labor and Workforce Development Agency (“LWDA”) 19 on June 29, 2018 through the concurrent submission of the joint request submitted to 20 the Court on the same day. 21 responded to notification of the proposed settlement. As of the time of this filing, the LWDA has not 22 Based on the foregoing, the Parties request: 23 1. the amount of $16,000.00 pursuant to Labor Code section 2699(l)(2); and 24 25 The Court approve the settlement amount apportioned to Plaintiffs’ PAGA claim in 2. The Court dismiss this action with prejudice as to Plaintiffs and without prejudice as 26 to other purported “aggrieved employees,” to the extent any such individuals exist, 27 with the Court to retain jurisdiction to enforce the terms of the settlement until 28 performance in full of the terms of the settlement. LITTLE R MEND ELSON, P .C . D ELSO N, 333 Bush Street 34th Floor San Francisco, CA 94104 415.433.1940 REVISED JOINT REQUEST AND PROP ORDER GRANTING APPROVAL OF PAGA SETTLEMENT AND DISMISSAL OF THE ACTION 5. CASE NO. 3:17-CV-03702-EMC 1 2 3 Dated: July 25, 2018 Respectfully submitted, 4 LITTLER MENDELSON, P.C. 5 6 /s/ Lisa K. Horgan LISA K. HORGAN JAMES J. OH COURTNEY M. OSBORN Attorneys for Defendants 7 8 9 Dated: July 25, 2018 Respectfully submitted, 10 RUDY, EXELROD, ZIEFF & LOWE, LLP 11 12 /s/ Chaya M. Mandelbaum STEVEN G. ZIEFF CHAYA M. MANDELBAUM WILLIAM P. MCELHINNY Attorneys for Plaintiffs 13 14 15 16 FILER’S ATTESTATION 17 Pursuant to Local Rule 5-1, I, the filer of this document, attest that all other signatories listed, 18 and on whose behalf the filing is submitted, concur in the filing’s content and have authorized the 19 filing. 20 /s/ Lisa K. Horgan Lisa K. Horgan LITTLER MENDELSON, P.C. 21 22 23 24 25 26 27 28 LITTLE R MEND ELSON, P .C . D ELSO N, 333 Bush Street 34th Floor San Francisco, CA 94104 415.433.1940 REVISED JOINT REQUEST AND PROP ORDER GRANTING APPROVAL OF PAGA SETTLEMENT AND DISMISSAL OF THE ACTION 6. CASE NO. 3:17-CV-03702-EMC 1 [PROPOSED] ORDER THE COURT HEREBY FINDS, having read and considered the Joint Request for 2 3 approval of a Private Attorneys General Act (“PAGA”) settlement and the dismissal of this action, 4 IT IS HEREBY ORDERED THAT: 5 Good cause exists to approve the PAGA settlement of $16,000.00 pursuant to Labor Code 6 section 2699(l)(2) and the settlement is so approved. 7 This action is now hereby dismissed in its entirety with prejudice as to Plaintiffs and without 8 prejudice as to the “aggrieved employees,” other than Plaintiffs, to the extent any such individuals 9 exist. 10 Defendants shall pay $12,000, which is 75% of $16,000, to the Labor and Workforce 11 Development Agency (“LWDA”) within twenty-one (21) business days after the dismissal of this 12 action. 13 This Court shall retain jurisdiction to enforce the terms of the settlement until performance in 14 full of the terms of the settlement. Plaintiffs are hereby ordered to submit a copy of this Order to the 15 LWDA within ten (10) days after its entry. 16 IT IS SO ORDERED. 17 18 19 20 21 August 3 DATED: ___________________, 2018 ___________________________________ THE HONORABLE EDWARD M. CHEN United States District Judge 22 23 24 25 Firmwide:155973348.3 092236.1005 26 27 28 LITTLE R MEND ELSON, P .C . D ELSO N, 333 Bush Street 34th Floor San Francisco, CA 94104 415.433.1940 REVISED JOINT REQUEST AND PROP ORDER GRANTING APPROVAL OF PAGA SETTLEMENT AND DISMISSAL OF THE ACTION 7. CASE NO. 3:17-CV-03702-EMC