Kress et al v. PriceWaterhouse Coopers, LLP

Filing 141

STIPULATION and ORDER re CONDITIONAL COLLECTIVE CERTIFICATION signed by Senior Judge Lawrence K. Karlton on 6/2/10. (Kaminski, H)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LYNNE C. HERMLE (SBN 99779) [e-mail] JOSEPH C. LIBURT (SBN155507) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: [phone]

Attorneys for Defendant PRICEWATERHOUSECOOPERS LLP Jeffrey K. Compton (SBN 142969) [e-mail] William A. Baird (SBN 192675) [e-mail] MARKUN ZUSMAN & COMPTON LLP 17383 West Sunset Boulevard, Suite A-380 Pacific Palisades , CA 90272 Telephone: [phone] Facsimile: [phone] Steven Elster (SBN 227545) [e-mail] LAW OFFICE OF STEVEN ELSTER 785/E2 Oak Grove Road, #201 Concord, CA 94518 Telephone: [phone] Attorneys for Plaintiffs SAMUEL BRANDON KRESS, et al.

NORMAN C. HILE (SBN 57299) [e-mail] JULIE A. TOTTEN (SBN166470) [e-mail] DAVID A. PRAHL (SBN 233583) [e-mail] ANDREA L. BROWN (SBN 237629) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 Sacramento, CA 95814-4497 Telephone: [phone] Facsimile: [phone]

Peter A. Muhic, PHV [e-mail] Joseph Meltzer, PHV Robert J. Gray, PHV BARROWAY TOPAZ KESSLER MELTZER & CHECK, LLP 280 King of Prussia Road Radnor , PA 19087 Telephone: [phone] Facsimile: [phone] Edward Wynne (SBN165819) [e-mail] WYNNE LAW FIRM 100 Drakes Landing Road, Suite 275 Greenbrae, CA 94904 Telephone: [phone] Facsimile: [phone]

PDF created with pdfFactory trial version www.pdffactory.com

STIPULATION AND [PROPOSED] ORDER RE CONDITIONAL COLLECTIVE CERTIFICATION 2:08-CV-00965-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SAMUEL BRANDON KRESS, et al., Plaintiffs, Case No. 2:08-CV-00965-LKK-GGH STIPULATION AND ORDER RE CONDITIONAL COLLECTIVE CERTIFICATION

PRICEWATERHOUSECOOPERS LLP, Defendants.

STIPULATION WHEREAS, on April 22, 2009, the Court issued an Order directing Plaintiffs Samuel Brandon Kress, Lac Ahn Le, Jason Patterson, Lauren San Mateo, James Stekelberg, Jeffrey Laberge, Willow Markham, Dana Blindbury, Jesse Kenny, Kelly C. Jones, and Antoine Powell (collectively, Plaintiffs) to file, inter alia, their second Fair Labor Standards Act ("FLSA") conditional collective certification motion as to a putative nationwide class of Associates and Senior Associates in Defendant PricewaterhouseCoopers LLP's ("PwC") Advisory and Tax lines of service, and Senior Associates in Defendant's Assurance line of service, by May 14, 2010 ("Second Motion for Conditional Certification"); WHEREAS, the parties recognize that as to the proposed nationwide FLSA classes of Associates and Senior Associates in PwC's Advisory and Tax lines of service, it is possible that (a) given the standard for FLSA conditional collective certification previously applied by the Court in this matter, the Court will conditionally certify this action for FLSA collective treatment as to the specific groups within the Tax and Advisory lines of service in which the named Plaintiffs worked; and (b) the Court will decline to conditionally certify this action for FLSA collective treatment as to those specific groups within the Tax and Advisory lines of service in which the named Plaintiffs did not work; and

-2PDF created with pdfFactory trial version www.pdffactory.com

STIPULATION AND [PROPOSED] ORDER RE CONDITIONAL COLLECTIVE CERTIFICATION 2:08-CV-00965-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

WHEREAS, conditional certification motions require the expenditure of significant resources of the parties and the court, and the parties recognize the importance of conserving judicial and party resources in this matter; ACCORDINGLY, IT IS HEREBY STIPULATED AND AGREED by and between Plaintiffs and PwC, by and through their respective undersigned counsel, that: 1. Conditional collective certification shall be granted as to the position of Associate

in the specific subgroups in PwC's Tax and Advisory lines of service in which the named Plaintiffs worked. Accordingly, pursuant to 29 U.S.C. § 216(b), this action shall be conditionally certified as a collective action consisting of those individuals who (a) worked in the position of Associate in the Disputes, Analysis and Investigations ("DA&I") group of PwC's Advisory line of service, the Threat and Vulnerability Management ("TVM") group of PwC's Advisory line of service, and/or the Tax Projects Delivery Group ("TPDG") of PwC's Tax line of service anywhere in the United States at any point from December 11, 2005 to the present ("Relevant Time Period"); and (b) did not possess a CPA license for some or all of the time they worked in any of these positions during the Relevant Time Period (the "Stipulated Tax and Advisory Groups"). 2. Conditional collective certification under the FLSA shall not be granted in this

action as to (a) any other Associate positions in any other subgroups within the Advisory or Tax lines of service; and (b) the position of Senior Associate within the Advisory or Tax lines of service (collectively, the "Excluded Tax and Advisory positions"). Counsel for Plaintiffs shall not seek conditional collective certification of the Excluded Tax and Advisory positions at any point in this lawsuit. Notwithstanding this paragraph, nothing in this stipulation shall preclude a motion for conditional certification under the FLSA on behalf of a class in the Excluded Tax and Advisory positions in a separate action. 3. The parties' agreement to toll the running of the FLSA statute of limitations in this

action, which became effective on December 11, 2008, shall expire as to the Excluded Tax and Advisory positions immediately upon entry of the Order set forth below reflecting the terms of

-3PDF created with pdfFactory trial version www.pdffactory.com

STIPULATION AND [PROPOSED] ORDER RE CONDITIONAL COLLECTIVE CERTIFICATION 2:08-CV-00965-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

this stipulation. Accordingly, upon entry of the Order set forth below, tolling of the FLSA statute of limitations shall cease as to the Excluded Tax and Advisory positions. 4. This stipulation shall not apply to the proposed nationwide group of Senior

Associates in PwC's Assurance line of service that Plaintiffs purport to represent. Accordingly, should Plaintiffs still intend to seek FLSA conditional collective certification as to the proposed nationwide group of Senior Associates in PwC's Assurance line of service, Plaintiffs shall file a motion for conditional certification as to this proposed group no later than the deadline for filing that motion. 5. This stipulation shall in no way affect PwC's right to file a motion to decertify the

stipulated, conditionally certified DA&I, TVM and TPDG groups (or any other conditionally certified groups), nor shall it in any way prejudice PwC's substantive arguments in support of such a motion. Accordingly, in opposing PwC's anticipated motion to decertify the stipulated, conditionally certified DA&I, TVM and TPDG groups, Plaintiffs shall not make any arguments that are based on this stipulation. For example, Plaintiffs shall not argue that because the parties stipulated to conditional collective certification of these groups, sufficient similarities exist to defeat PwC's motion to decertify the collective action, nor shall Plaintiffs argue that PwC has waived any arguments in support of its anticipated motion to decertify the action based on having entered into this stipulation. 6. This stipulation shall in no way affect Plaintiffs' right to seek class certification

under Federal Rule of Civil Procedure 23 as to a proposed class of individuals who work and/or worked in the positions of Associate and Senior Associate in PwC's Tax and Advisory lines of service, and Senior Associate in PwC's Assurance line of service, in California. Accordingly, in opposing Plaintiffs' anticipated motion to certify under Rule 23 any classes within PwC's Tax and Advisory lines of service, PwC shall not make any arguments that are based on this stipulation, nor shall PwC argue that Plaintiffs have waived any arguments in support of their anticipated motion to certify under Rule 23 any classes within PwC's Tax and Advisory lines of service based on having entered into this stipulation. Under the current scheduling order,

-4PDF created with pdfFactory trial version www.pdffactory.com

STIPULATION AND [PROPOSED] ORDER RE CONDITIONAL COLLECTIVE CERTIFICATION 2:08-CV-00965-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiffs are scheduled to file a motion seeking to certify such proposed California classes of PwC employees between August 2, 2010 and October 1, 2010. 7. This stipulation shall not otherwise be referenced, cited to or used by the parties in

any manner that would be prejudicial to the other party at any point in this lawsuit. This stipulation is not an admission by either party on the merits of Plaintiffs' claims or of PwC's defenses, nor is it in any way reflective of the merits of whether collective certification is appropriate in this action as to the Stipulated Tax and Advisory Positions. This stipulation only reflects the parties' shared interest in advancing this litigation in the most efficient and practical manner possible. 8. With the exception of individual communications with plaintiffs in this action,

individual communications with members of the Stipulated Tax and Advisory Groups who elect to become party plaintiffs to the action, and the filing of necessary papers in this litigation, and as otherwise required by law, Plaintiffs and their counsel shall not publicize the existence or terms of this stipulation. Thus, for example, Plaintiffs and their counsel may not (a) issue any press releases regarding the existence or terms of this stipulation; (b) hold any press conferences regarding the existence or terms of this stipulation; and (c) substantively comment in response to any media inquiry regarding the existence or terms of this stipulation. 9. Should the Court enter an order reflecting the terms of this stipulation, the parties

shall have fifteen (15) days from the date on which the Court enters such an order to submit to the Court a joint proposal for notice to the class, or separate statements as to why such a joint proposal could not be reached. Plaintiffs shall bear all costs of issuing notice to the conditionally certified groups, and provision of notice by mail will suffice. PwC shall not be required to post notice at its places of employment. 10. Should the Court decline to enter an order reflecting the terms of this stipulation,

Plaintiffs shall not be precluded from filing a motion for collective certification on behalf of the Stipulated Tax and Advisory Groups or the Excluded Tax and Advisory positions. Further, should the Court enter an order modifying this stipulation in such a way that narrows the scope of the Stipulated Tax and Advisory Groups, Plaintiffs shall not be precluded from seeking collective -5STIPULATION AND [PROPOSED] ORDER RE CONDITIONAL COLLECTIVE CERTIFICATION 2:08-CV-00965-LKK-GGH

PDF created with pdfFactory trial version www.pdffactory.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

certification under the FLSA in a Motion for Collective Certification on behalf of the individuals in the Stipulated Tax and Advisory Groups excluded by the entered order. Dated: May 28, 2010 BARROWAY TOPAZ KESSLER KESSLER MELTZER & CHECK, LLP By: _/s/ Peter A. Muhic _____ Joseph H. Meltzer Peter A. Muhic Robert J. Gray - and ­ MARKUN ZUSMAN & COMPTON LLP Jeffrey K. Compton William A. Baird WYNNE LAW FIRM Edward J. Wynne LAW OFFICE OF STEVEN ELSTER Steven Elster Counsel for Plaintiffs ORRICK, HERRINGTON & SUTCLIFFE LLP By:___/s/ Julie A. Totten_______ Norman C. Hile (SBN 57299) Joseph C. Liburt (SBN155507) Julie A. Totten (SBN 166470) David A. Prahl (SBN 233583) Andrea L. Brown (SBN 237629) - and Lynne C. Hermle (SBN 99779) Sitthikit Chariyasatit (SBN 252028) Counsel for Defendant

SO ORDERED:

Dated: June 2, 2010

-6PDF created with pdfFactory trial version www.pdffactory.com

STIPULATION AND [PROPOSED] ORDER RE CONDITIONAL COLLECTIVE CERTIFICATION 2:08-CV-00965-LKK-GGH