Cheung et al v. Actionlink, L.L.C.

Filing 28

ORDER, Motions terminated: 27 STIPULATION WITH PROPOSED ORDER (JOINT) - VACATING STAY AND ORDER CERTIFYING CLASSES AND SETTING FURTHER CASE MANAGEMENT CONFERENCE filed by Actionlink, L.L.C.. Further Case Management Conference set for 12/12/2014 03:00 AM in Courtroom 10, 19th Floor, San Francisco.. Signed by Judge Susan Illston on 11/10/14. (tfS, COURT STAFF) (Filed on 11/10/2014)

1 HANSON BRIDGETT LLP
DIANE MARIE O'MALLEY,SBN 139166
2 [e-mail]
DOROTHY S. LIU,SBN 196369
3 [e-mail]
JENNIFER M. MARTINEZ,SBN 262081
4 [e-mail]
425 Market Street, 26th Floor
5 San Francisco, California 94105
Telephone: [phone]
6 Facsimile:
[phone]
7 Attorneys for Defendant ACTIONLINK,LLC
8 JULIAN A. HAMMOND,SBN 268489
Hammond. [e-mail]
j
9 HAMMOND LAW PC
1180 S. Beverly Dr., Ste. 610
Los Angeles, California 90035
Telephone: [phone]
11 Facsimile:
[phone]
12 CRAIG G. ACKERMANN,SBN 229832
[e-mail]
13 ACKERMANN & TILAJEF,P.C.
1180 S. Beverly Dr., Ste. 610
14 Los Angeles, California 90035
Telephone: [phone]
15 Facsimile:
[phone]
16 Attorneys for PLAINTIFFS
17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19

SAN FRANCISCO DIVISION

20 CATHLENE CHEUNG,JEFF KOENIG,
CHRISTIAN SANTOS,and SCOTT
21 SOBCZAK,individually and on behalf of all
others similarly situated,
22
Plaintiffs,
23
v.
24
ACTIONLINK,L.L.C., an Ohio Limited
25 Liability Corporation,
26

CASE NO.3:13-cv-01931-SI
JOINT STIPULATION AND [PROPOSED]
ORDER VACATING STAY AND ORDER
CERTIFYING CLASSES AND SETTING
FURTHER CASE MANAGEMENT
CONFERENCE

Defendant.

27
28
6291547.3

3:13-cv-01931-SI
AND CLASS CERTIFICATION ORDER
JOINT STIPULATION AND[PROPOSED]ORDER VACATING STAY OF PROCEEDINGS

Plaintiffs Cathlene Cheung, Jeff Koenig, Christian Santos and Scott Sobczak
2 ("Plaintiffs") and DefendantActionLink, LLC,("ActionLink")(jointly the "Parties") hereby
3 submit this Stipulation and Order.
4

I.

5

WHEREAS,on May 13, 2014, the Parties filed and this Court signed a Joint Stipulation

INTRODUCTION

6 ~ and Proposed Order to Stay Proceedings ("Stipulation and Order") in the instant putative class
7 action on behalf of themselves and all others similarly situated ("Cheung Action"). A copy of that
8 Stipulation and Order is attached as Exhibit A;
9

WHEREAS,that Stipulation and Order provided that, a currently pending previously filed

10 case in Sacramento Superior Court entitled Carl Adams, III, et al. v. ActionLink, LLC, et al.(the
11 "Adams Action"), alleging violations of the California Labor Code for failure to reimburse
12 business expenses; failure to pay overtime; waiting time penalties; Private Attorneys General Act
13 penalties; and violations of California's Unfair Competition Law, would also be stayed in order
14 i, for the Stipulation and Order to be effective;
15

WHEREAS,John Glugoski of Righetti Glugoski, P.C. is counsel in the earlier-filed Adams

16 ~ Action;
17

WHEREAS,since the Court signed the Stipulation and Order in this case, the parties in the

18 Adams Action were unable to finalize and have the Sacramento Superior Court approve a
19 stipulation to certify the claims in that case and stay those proceedings;
20

WHEREAS,the Stipulation and Order in the instant case provided, as a condition

21 subsequent for the Stay of Proceedings and Certification Order in the instant Action to take effect,
22 that there be a Stay in place in the Adams Action. Specifically, the Stipulation and Order provides:

26

WHEREAS,as a result of Defendant's current financial situation, on March 18,
2014, the Parties determined partially to resolve some of the disputed issues in the
Cheung and Adams Actions by agreeing to, and to seek court approval of, the
following in both the Cheung and Adams Actions, understanding that these
agreements are in place only if the Court grants the Parties' joint request to
stay the Cheung action and the Superior Court also grants the Parties' joint
request to stay the Adams action

27

WHEREAS,there was no joint request to stay the Adams Action that was ever submitted

23
24
25

28 or granted in the Adams Action;
629t 547.3

_2_

3:13-cv-01931-SI

JOINT STIPULATION AND [PROPOSED] ORDER VACATING STAY OF PROCEEDINGS AND CLASS CERTIFICATION ORDER

1

WHEREAS,the parties in the Adams Action reached impasse over the class notice.

2 Adams' counsel wanted to send out a class notice during the stay period. ActionLink counsel
3 believed such activity to be beyond the tentatively agreed to stay and in contradiction to the
4 purpose of the stay. The parties in the Adams Action have not been able to come to agreement and
5 ~ do not anticipate being able to come to agreement over that issue in the Adams Action.
6

WHEREAS,the parties in the Adams case reached impasse over whether the class notice

7 ~ would go out during the stay and the Parties have not been able to come to agreement and do not
8 anticipate being able to come to agreement over that issue in the Adams case;
9

WHEREAS,in light of the failure of the occurrence of a material condition subsequent to

10 the Stay in this case, the Parties now hereby submit this Joint Stipulation and Proposed Order to
11

Vacate the Stay and Class Certification Order in the instant case and ask the Court to set a Case

12 Management Conference in this matter.
13

II.

RESULTANT STIPULATION AS TO VACATING STAY AND CLASS
CERTIFICATION ORDER

14
15

NOW,THEREFORE,the Parties hereby stipulate and agree to the following:

16

1.

That the Court vacate the stay of all proceedings in the Cheung Action; and

17

2.

That the Court vacate the class certification rulings outlined in the Court's May 13,

18 ~ 2014 Joint Stipulation and Order, specifically vacating the following classes and subclasses: under
19 California Code of Procedure Section 382 and Rule 23 of the Federal Rules of Civil Procedure:
20

Subclass 1: (1)Plaintiffs' First Cause of Action for unreimbursed business expenses

21 incurred pursuant to section 2802 of the California Labor Code;(2)Plaintiffs' Fourth Cause of
22 Action for unreimbursed business expenses pursuant to section 17200 et seq. of California's
23 Business and Professions Code; and (3)Plaintiffs' Fifth Cause of Action for civil penalties under
24 California's Private Attorney Generals Act based on the underlying alleged violations of Labor
25 Code section 2802 pursuant to Labor Code sections 2698-2699.5.
26

Subclass 1 means, for purposes of this Stipulation only:

27

all persons in the classification of"Merchandising Specialist" and "Merchandising
Representative," "Assisted Sales Representative," "Brand Advocate," "Product
Demonstrator," "Field Representative," "Retail Sales Associate," "Retail Sales

28
629 t 547.3

_3 _

3:13-cv-0 l 931-SI

JOINT STIPULATION AND [PROPOSED] ORDER VACATING STAY OF PROCEEDINGS AND CLASS CERTIFICATION ORDER

1
►~

Representative" and "Retail Sales Specialist," employed by ActionLink in
California from March 22,2009 through the date the Court enters the stipulation to
stay this action and to certify the proposed subclasses (the "Class Period")
(Complaint p. 2:10-15).

3
As to the PAGA claim, however, for Subclass 1, the PAGA actionable period shall be from
4
March 22,2012.
5
Subclass 2:(1)Plaintiffs' Second Cause of Action for Unpaid Accrued Vacation and Paid
6
Days Off pursuant to Labor Code 227.3;(2)Plaintiffs' Third Cause of Action for failure to Pay
7
Compensation at time oftermination (for those members of Subclass 2 who are no longer
8
employed by ActionLink);(3)Plaintiff's Fourth Cause of Action for Unpaid Accrued Vacation
9
and Paid Days Off pursuant to Section 17200, et seq. of California's Business and Professions
l0
Code; and (4)and Plaintiffs' Fifth Cause of Action for civil penalties under California's Private
11
Attorney Generals Act based on the underlying alleged violations of Labor Code Section 227.3,
12
pursuant to Labor Code sections 2698-2699.5.
13
Subclass 2 means the following, for purposes ofthis Stipulation only:
14
l5
16
l7

[A]11 other employees who have worked for at least one year, and who have worked
at least 38 hours or more on a regular basis for Defendant in California during the
four years prior to the filing ofthis Complaint, seeking payment for their vested
vacation pay (including, but not limited to floating holidays, Paid Absence Days
("PAD"), personal holidays, and other paid time ofd forfeited and not paid to them
upon termination to the extent such payment was required upon termination in
California (Complaint, p. 3:3-8).

18
As to the PAGA claim, however, for Subclass 2, the PAGA actionable period shall be from
19
March 22, 2012.
20
3.

For the Court to set a Case Management Conference on

at which

21
time the Parties will inform the Court whether they intend to schedule an additional mediation
22
and/or whether they will then proceed with litigating the matter, including, but not limited to
23
setting dates for motions for class certification and setting further deadlines for the trial ofthe
24
substantive claims in this case, if necessary.
25
26
Respectfully submitted,
27
28
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3:13-cv-01931-SI

JOINT STIPULATION AND ~PROPOSED~ ORDER VACATING STAY OF PROCEEDINGS AND CLASS CERTIFICATION ORDER

1 DATED: November 5,2014

HAMMOND LAW PC

2
3

Bv:

4

/s/ Julian A. Hammond
JULIAN A. HAMMOND
Attornevs for PLAINTIFFS

5
DATED: November 5.2014

ACKERMAN & TILAJEF PC

6
7
Bv:
g

/s/ Cram Ackermann
CRAIG J. ACKERMANN
Attorneys for PLAINTIFFS

9
10 DATED: November 5,2014

HANSON BRIDGETT LLP

11
12
1-~
14

Bv:

/s/ Diane Marie O'Malley
DIANE MARIE O'MALLEY
DOROTHY S. LIU
JENNIFER M. MARTINEZ
Attorneys for Defendant
ACTIONLINK,LLC

15
1G
17
18
19
20
21
22
23
24
25
26
27
28
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3:13-cv-01931-SI

JOINT STIPULATION AND[PROPOSED] ORDER VACATING STAY OF PROCEEDINGS AND CLASS CERTIFICATION ORDER

1

ORDER

2

GOOD CAUSE APPEARING based on the Parties' stipulation and the failure of a

3 condition subsequent in the parallel Adams action in state court, the Court hereby issues the
4 following Orders:
5

1.

The Court hereby vacates, in its entirety, the May 13, 2014 Joint Stipulation and

6 Order; and specifically
7

2.

The Court vacates the stay of all proceedings in the Cheung Action; and

8

3.

The Court vacates all the class certification rulings outlined in the Court's May 13,

9 2014 Joint Stipulation and Order, specifically vacating the classes and subclasses noted therein;
10 and
11

4.

The Court hereby sets a Case Management Conference on 12/12/14 @ 3 p.m.
at

12 which time the Parties will inform the Court whether they intend to schedule an additional
13 mediation and/or whether they will then proceed with litigating the matter, including, but not
14 limited to setting dates for motions for class certification and setting further deadlines for the trial
15 of the substantive claims in this case, if necessary.
16

IT IS SO ORDERED.

17
18 D~"['ED:

11/10

2014

19
20

THE HONORABLE SUSAN ILLSTON
United States District Court Judge

21
22
23

I

24
25
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27
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JOINT STIPULATION AND [PROPOSED] ORDER VACATING STAY OF PROCEEDINGS AND CLASS CERTIFICATION ORDER

Case3:13-cv-01931-S~ Document26 Filed05/13/14 Pagel of 12

1 HANSON BRIDGETT LLP
DIANE MARIE O'MALLEY,SBN 139166
2 [e-mail]
DOROTHY S. LIU, SBN 196369
3 [e-mail]
JENNIFER M. MARTINEZ,SBN 262081
4 [e-mail]
425 Market Street, 26th Floor
5 San Francisco, California 94105
Telephone: [phone]
6 Facsimile:
[phone]
7 Attorneys for Defendant ACTIONLINK,LLC
8 JULIAN A. HAMMOND,SBN 268489
[e-mail]
9 HAMMOND LAW PC
1180 S. Beverly Dr., Ste. 610
10 Los Angeles, California 90035
Telephone: [phone]
11 Facsimile:
[phone]
12 CRAIG G. ACKERMANN,SBN 229832
[e-mail]
13 ACKERMANN & TILAJEF,P.C.
1180 S. Beverly Dr., Ste. 610
14 Los Angeles, California 90035
Telephone: [phone]
15 Facsimile:
[phone]
16 Attorneys for PLAINTIFFS
17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19

SAN FRANCISCO DIVISION

20 CATHLENE CHEUNG,JEFF KOENIG,
CHRISTIAN SANTOS,and SCOTT
21 SOBCZAK,individually and on behalf of all
others similarly situated,
22
Plaintiffs,
23
v.
24
ACTIONLINK,L.L.C., an Ohio Limited
25 Liability Corporation,
26

CASE NO.3:13-cv-01931-SI
JOINT STIPULATION AND[
ORDER CERTIFYING CLASS;
VACATING DEADLINES FOR CLASS
CERTIFICATION MOTION AND OTHER
COURT DATES AND STAYING CLASS
ACTION FOR TWELVE(12) MONTHS
DUE TO DEFENDANT'S POTENTIAL
JUDGMENT PROOF STATUS

Defendant.

27
28
3:13-cv-01931-SI

62915472
JOINT STIPULATION AND[PROPOSED]ORDER TO STAY PROCEEDINGS

Case3:13-cv-01931-SI Document26 Filed05/13/14 Paget of 12

1

Plaintiffs Cathlene Cheung, Jeff Koenig, Christian Santos and Scott Sobczak

2 ("Plaintiffs") and Defendant ActionLi~tk, LLC, hereby submit this Stipulation and Order.
3

I.

4

WHEREAS,Plaintiffs filed this action in the Superior Court of California for the County

INTRODUCTION

5 of Alameda on March 22, 2013, alleging violations of the California Labor Code for failure to
6 reimburse business expenses; failure to pay all accrued vacation days; waiting time penalties;
7 Private Attorneys General Act penalties; and violations of California's Unfair Competition Law.
8 Thereafter, Defendant removed this action to this Court under the Class Action Fairness Act of
9 2005("CAFA"),28 U.S.C. § 1332(d);
WHEREAS,Plaintiffs filed the instant putative class action on behalf of themselves and all

10
11

others similarly situated ("Cheung Action");
WHEREAS,a previously filed case in Sacramento Superior Court is also currently

12

13 pending entitled Carl Adams, III, et al. v. ActionLirtk, LLC, et al.(the "Adams Action"), alleging
14 violations ofthe California Labor Code for failure to reimburse business expenses; failure to pay
15 overtime; waiting time penalties; Private Attorneys General Act penalties; and violations of
16 California's Unfair Competition Law;
17

WHEREAS,the claims in the Cheung Action overlap with the claims in the Adams Action;

18

WHEREAS,in the instant action, Plaintiffs have propounded discovery that is currently in

19 abeyance, and
WHEREAS,the Court has set an October 31, 2014 date for Plaintiffs to file their Motion

20

21 for Class Certification.
22

II.

CONCURRENT PROCEEDINGS IMPACTING THIS
LITIGATION/DEF~NDANT'S FINANCIAL CONDITION

23
WHEREAS, Defendant is involved in a Fair Labor Standards Act collective action in the

24

25 United States District Court for the Eastern District of Arkansas, entitled Beauford, et al v.
26 ActionLink, LLC. On September 26, 2013,judgment was entered in favor of the Arkansas
27 plaintiffs in the amount of $359,455.77, with interest of 0.11 %per annum from that date accruing;
28 and
6291547.2

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3:13-cv-01931-SI

Case3:13-cv-01931-SI Document26 Filed05/13/14 Page3 of 12

WHEREAS,on January 15, 2014, the same Arkansas court entered judgment in favor of
2 the Arkansas plaintiffs for $196,848.72 plus prejudgment interest to accrue at the rate of 0.13%
3 per annum representing an award of $193,475.50 in attorneys' fees and $3,375.22 in costs; and
4

WHEREAS,in addition to awarding those amounts, the Arkansas court specifically found

5 that the Defendant may be unable to satisfy the judgments due to its financial condition. The
6 Court noted:
7

9
10
it
12
13
14

Here, in addition to the risk associated with the possibility that the plaintiffs might
not have prevailed there is the additional risk that ActionLink may be unable to
satisfy the judgment and unable to pay the attorneys' fees award to plaintiffs'
counsel. Based on the prospect that ActionLink may be unable to satisfy the
judgment, the plaintiffs moved for leave to register the judgment in other d►stricts
or in the alternative to require ActionLink to post a bond. ActionLink made no
response so the court accepted as true the representation that ActionLink may be
unable to satisfy the judgment. Thus, the court is presented with the rare
circumstance in which a defendant has made an offer ofjudgment pursuant to Rule
68, the plaintiffs have accepted that offer, but the defendant may be unable to
satisfy the judgment. Because of this rare circumstance, the Court believes that
it is appropriate to enhance the fee award to plaintiffs' counsel based on the
risk that ActionLink may be unable to pay the award and the additional time
and labor that may be involved in collecting the judgment and in collecting the
award of attorneys' fees.

15 ~ See Beauford, et al v. ActionLink, LLC, No. 4:2012-cv-00139, 2014 U.S. Dist. LEXIS 5039, at *8
16 (E.D. Ark. Jan. 15, 2014).
17

WHEREAS,due to Defendant's current financial situation, it can neither defend the

18 Cheung and Adams Actions nor offer monetary relief to resolves the actions that is acceptable to
19 Plaintiffs; and further, if Plaintiffs were successful in these actions, Defendant contends that it
20 could not pay any judgments; and
21

III.

MEDIATION EFFORTS

22

WHEREAS,in accordance with this Court's January 24, 2014 Minute Order, on March 18,

23 2014, the Parties engaged in private mediation before the Honorable William Cahill. Counsel for
24 both the Cheung Action and the Adams Action and for Defendant were present; and
25

WHEREAS,as a result of Defendant's current financial situation, on March 18, 2014, the

26 Parties determined partially to resolve some of the disputed issues in the Cheung and Adams
27 Actions by agreeing to, and to seek court approval of, the following in both the Cheung and
28 Adams Actions, understanding that these agreements are in place only if the Court grants the
629~sa72

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JOINT STIPULATION AND (PROPOSEDI ORDER TO STAY PROCEEDINGS

3:13-cv-01931-SI

Case3:13-cv-01931-SI Document26 Filed05/13/14 Page4 of 12

1 ~ Parties'joint request to stay the Cheung action and the Superior Court also grants the Parties'joint
2 ~ request to stay the Adams action:
3

1..

A twelve(12) month stay (through and including March 18, 2015), of all
proceedings including, but not limited to, court appearances, motions, and
discovery, and

2.

Defendant's stipulation to class certification, as those subclasses are
defined herein.

4
5
6
7

The Parties believe that the federal court proceedings will not be prejudiced by this

8 ~ postponement, due, in large part, to the fact that Defendant is agreeing to stipulate to class
9 certification, thus making it unnecessary for the Court to hear and determine the class certification
10 ~ motion, currently set for an October 31, 2014 hearing, in exchange for a temporary stay of
11 ~ litigation. Defendant's stipulation to class certification also obviates the need for the Parties and
12 the Court to engage in protracted class discovery proceedings. Defendant further agrees not to
13 ; attempt to settle individually with any members ofthe putative class during the pendency ofthe
14 stay unless any members of the putative class file or threaten to file a claim or action against
15 Defendant with any administrative agency or with any court. Defendants agree to notify class
16 counsel if such a circumstance arises. Further, the Court has not yet set a trial date.
17

Defendant believes that this twelve month time period will give it the necessary time to

18 focus on the business operations such that it may change its financial situation in a positive way
19 and thus be able to litigate or settle this matter after the end ofthe stay period.
20

Defendant further believes that such financial turn-around can only be accomplished by a

21 stay of both the Cheung Action and the Adams Action and will allow, at a later date, for Defendant
22 to litigate, perhaps pay and/or mediate a settlement with Plaintiffs. Therefore, Defendant believes
23 a stay is also in the best interests of Plaintiffs and the class members. Plaintiffs believe that the
24 stay is in the interests ofthe class because it will facilitate the efficient adjudication ofthe claims
25 on a class basis. In the normal course of litigation, the pursuit of class certification would be time26 consuming and give rise to transaction costs, with no certainty that the class would be certified,
27 and this process, with a potential appeal of any order granting class certification following a court
28 ruling, would potentially take up to a year or longer in any event. Once the stay is lifted, the
529 t 54~z

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3:13-cv-01931-SI

Case3:13-cv-01931-SI Document26 Filed05/13/14 Pages of 12

1

parties to Cheung Action will work cooperatively along with counsel in the Adams Action to make

2 sure that both the class notice and litigation, if necessary, of the claims will proceed in a way that
3 avoids duplication and promotes judicial efficiency.
4

IV.

RESULTANT STIPULATION AS TO STAY AND CLASS
CERTIFICATIONS

5
6

THEREFORE,the Parties hereby stipulate and agree to the following:

7

1.

To stay all proceedings in the Cheung Action through and including March 18,

8 2015; and
9

2.

That the condition for class certification under California Code of Procedure

10 Section 382 and Rule 23 of the Federal Rules of Civil Procedure have been met as follows:
11

Constitution of the following subclasses:

12

Subclass 1 is certified as to: (1) Plaintiffs' First Cause of Action for unreimbursed

13 business expenses incurred pursuant to section 2802 of the California Labor Code;(2)Plaintiffs'
14 Fourth Cause of Action for unreimbursed business expenses pursuant to section 17200 et seq. of
15 California's Business and Professions Code; and (3) Plaintiffs' Fifth Cause of Action for civil
16 penalties under California's Private Attorney Generals Act based on the underlying alleged
17 violations of Labor Code section 2802 pursuant to Labor Code sections 2698-2699.5.
18

Subclass 1 means, for purposes of this Stipulation only:

19

all persons in the classification of"Merchandising Specialist" and "Merchandising
Representative," "Assisted Sales Representative,""Brand Advocate,""Product
Demonstrator," "Field Representative," "Retail Sales Associate," "Retail Sales
Representative" and "Retail Sales Specialist," employed by ActionLink in
California from March 22, 2009 through the date the Court enters the stipulation to
stay this action and to certify the proposed subclasses (the "Class Period")
(Complaint p. 2:10-15).

20
21
22

23 As to the PAGA claim, however, for Subclass 1, the PAGA actionable period shall be from
24 March 22, 2012, through the date the Court enters this stipulation to stay this action and to certify
25 the proposed subclasses.
26

Subclass 2 is certified as to:(1) Plaintiffs' Second Cause of Action for Unpaid Accrued

27 Vacation and Paid Days Off pursuant to Labor Code 227.3;(2) Plaintiffs' Third Cause of Action
28 for failure to Pay Compensation at time of termination (for those members of Subclass 2 who are
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3:13-cv-01931-SI

Case3:13-cv-01931-SI Document26 Filed05/13/14 Page6 of 12

no longer employed by ActionLink);(3)Plaintiff's Fourth Cause of Action for Unpaid Accrued
2 I~ Vacation and Paid Days Off pursuant to Section 17200, et seq. of California's Business and
3 Professions Code; and (4)and Plaintiffs' Fifth Cause of Action for civil penalties under
4 California's Private Attorney Generals Act based on the underlying alleged violations of Labor
5 ~ Code Section 227.3, pursuant to Labor Code sections 2698-2699.5.
6

Subclass 2 means the following, for purposes of this Stipulation only:

7

10

[A]11 other employees who have worked for at least one year, and who have worked
at least 38 hours or more on a regular basis for Defendant in California during the
four years prior to the filing of this Complaint, seeking payment for their vested
vacation pay (including, but not limited to floating holidays, Paid Absence Days
("PAD"), personal holidays, and other paid time offl forfeited and not paid to them
upon termination to the extent such payment was required upon termination in
California (Complaint, p. 3:3-8).

11

As to the PAGA claim, however, for Subclass 2, the PAGA actionable period shall be from

8
9

12 March 22, 2012, through the date the Court enters this stipulation to stay this action and to certify
13 the proposed subclasses.
This Stipulation shall not constitute an admission by Defendant of any liability of

14

15 ~ Plaintiffs' claims or ofthe class members' claims in the action. Defendant agrees for purposes of
16 this Stipulation and in exchange for the stay of the litigation and the parallel Adams Action, that
17 Plaintiffs have met the requirements for certification of Subclass 1 and Subclass 2 as to the causes
18 of action listed above pursuant to Rule 23(a) and (b)(3) ofthe Federal Rules of Civil Procedure;
19 and
20

3.

There is awell-defined community of interest in the litigation, the proposed

21 ~ Subclasses are easily ascertainable, and Plaintiffs are adequate Class Representatives:
22

a.

Numerosity: The potential members of Subclass 1 and Subclass 2, as

23 defined, are so numerous and diversely located~throughout California, thatjoinder of all the
24 members of Subclass 1 and Subclass 2 are impracticable and Defendant believes that it has during
25 the Class Period employed more than 1,000 members of Subclass 1 and/or Subclass 2 in
26 California subject to Defendant's business expense reimbursement policies and vacation pay
27 policies. The members of Subclass 1 and Subclass 2 are dispersed throughout California. Joinder
28 of all members of the proposed Subclasses is therefore not practicable; and further
~i2`~ ~ ?a~'

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1

b.

Commonality: There are questions of law and fact common to the Plaintiffs

2 and the Subclasses that predominate over any questions affecting only individual members of the
3 Subclasses; including:
4

i.

Whether Plaintiffs and the members of Subclass 1 incurred

5 unreimbursed business expenses in the discharge of their duties as employees, including but not
6 limited to expenses for operation of personal motor vehicles such as mileage, insurance, gasoline
7 and oil, parking costs, tolls, and depreciation and maintenance of their vehicles; cellular phones
8 and monthly cellular phone bills; and high speed Internet bills, in violation of section 2802 of the
9 California Labor Code;
10
11

ii.

Whether Defendant's uniform policy of excluding the first 30 miles

driven from and to the home offices of by the members of Subclass 1 in their personal vehicles on

12 business-related trips violates section 2802 of the Labor Code;
13

iii.

Whether Defendant's uniform policy of paying only $0.25 (or lower

14 rate) per mile instead of the IRS mileage reimbursement rate for mileage incurred by the members
15 of Subclass 1 in their personal vehicles on business-related trips violates section 2802 of the Labor
16 Code;
17

iv.

Whether Defendant's failure to fully reimburse business expenses

18 incurred by Plaintiffs and members of Subclass 1 in the discharge of their duties violates section
19 17200 of California's Business and Professions Code;
20

v.

Whether Defendant intended, suffered and/or permitted, and/or was

21 aware and/or should have been known that Plaintiff and the members of Subclass 1 incurred such
22 unreimbursed business expenses in the discharge of their duties as employees;
23

vi.

Whether Defendant failed and/or refused to fully reimburse business

24 expenses incurred by Plaintiff and the members of Subclass 1 in the discharge of their duties;
25

vii.

Whether Defendant's failure to reimburse business expenses

26 incurred by Plaintiff and the members of Subclass 1, fully or at all, was the result of, and/or
27 pursuant to, a business policy or regular practice of Defendant;
28
6z9 t sa7.2

viii.

Whether Defendant's vacation pay and Paid Time Off forfeiture
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Case3:13-cv-01931-SI Document26 Filed05/13/14 Page8 of 12

1 ~ policy violated section 227.3 ofthe California Labor Code;
2

ix.

Whether Defendant's policy to not pay unused but accrued vacation

3 ~ pay and Paid Time Off on termination violated section 227.3 of the California Labor Code;
4

x.

Whether Defendant's failure to pay all accrued, yet unused, vacation

5 ~ pay and all wages due upon termination of employment of the members of Subclass 2 within the
6 ~ prescribed time period violated sections 201-203 of the California Labor Code;
7

xi.

Whether Plaintiffs are entitled to restitution under section 17200 of

8 ~ the California Business and Professions Code; and
9

xii.

The proper formulas)for calculating damages, interest, and

10 ~ restitution owed to Plaintiff and the members of Subclass 1 and Subclass 2; and further
11

c.

Typicality: Plaintiffs' claims are typical ofthe claims of both Subclasses.

12 Certification of this case as a class action will allow those similarly situated persons to litigate
13 their typical claims in the manner that is most efficient and economical for the parties and the
14 judicial system; and further,
15

d.

Adequacy of Representation: Plaintiffs are members of Subclass 1 and

16 Subclass 2, and will fairly and adequately represent and protect the interests ofthe members of
17 both ofthe subclasses. Plaintiffs' interests do not conflict with those ofthe members of Subclass
18

or Subclass 2. Counsel who represents Plaintiffs (i.e., John Glugoski of Righetti Glugoski,

19 P.C.; Craig Ackermann and Landen Buckley of Ackermann & Tilajef, P.C.; and Julian Hammond
20 of Hammond Law P.C.), are competent and experienced in litigating large wage and hour class
21 actions, including business expense reimbursement cases, and other employment class actions, and
22 will devote sufficient time and resources to the case and otherwise adequately represent Subclass 1
23 1 John Glugoski of Righetti Glugoski, P.C. is counsel in the earlier-filed Adams action. Plaintiffs'
Counsel in both cases have agreed to a joint prosecution agreement of both actions such that they
24
will jointly proceed as class counsel in either or both cases. At a later date, the Parties will
25 determine the mechanics of how one class notice shall be disseminated given the two pending
overlapping cases and/or how the two cases shall be resolved or brought to trial given the overlap
26 between them. Since a stipulation similar to this one shall also be filed in the Adams action, the
parties have agreed to defer discussion over the mechanics ofthe inter-relationship between the
27 two cases until the conclusion ofthe stay in the two cases is lifted.
28
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1

and Subclass 2; and further

2

d.

Superiority of Class Action: Class action is superior to other available

3 means for the fair and efficient adjudication of this controversy. Individual joinder of all members
4 of Subclass 1 and Subclass 2 is not practicable, and questions of law and fact common to the
5 members of Subclass 1 and Subclass 2 predominate over any questions affecting only individual
6 members of Subclass 1 and Subclass 2. The Parties also stipulate that the common issues
7 identified above predominate over any individual issues for purposes of Rule 23(b)(3).
8

4.

This stipulation does not imply that each and every individual in the stipulated

9 subclasses has a right to any relief An individual's right and terms of recovery, if any, including
10 the named Plaintiffs, will be determined at a later date through trial or settlement. The sole
11

purpose of this Stipulation and Order is to stipulate to class certification of the referenced

12 Subclasses and Causes of Action in exchange for a one year stay of these proceedings and the
13 related Adams Action; and
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5.

The proposed stay, if approved by the Court along with the stipulation to class

2 certification, will expire by its own terms on March 18, 2015, at which time the Parties will inform
3 the Court whether they intend to schedule an additional mediation and/or whether they will then
4 proceed with the process of dissemination ofthe class notice and setting further deadlines for the
5 trial of the substantive claims in this case following the notice dissemination process. The lifting
6 ofthe stay in March 18, 2015, shall not impact the continued certification of the subclasses for the
7 causes of action identified herein. All pending deadlines in this case are hereby vacated, the
8 subclasses are certified for the causes of action listed above pursuant to the Parties' agreement and
9 stipulation; and this Action is hereby stayed until and including March 18, 2015.
10
Respectfully submitted,

11

HAMMOND LAW PC

12 DATED: Mav 13,2014
13
14

By:

15

/s/ Julian A Hammond
JULIAN A. HAMMOND
Attorneys for PLAINTIFFS

16
ACKERMAN & TILAJEF PC

DATED: May 13, 2014
17
18
Bv:
19

/s/ Craig Ackermann
CRAIG J. ACKERMANN
Attorneys for PLAINTIFFS

20
21 ~ DATED: Mav 13, 2014

HANSON BRIDGETT LLP

22
23
24
25

By:

/s/ Diane Marie O'Malley
DIANE MARIE O'MALLEY
DOROTHY S. LIU
JENNIFER M. MARTINEZ
Attorneys for Defendant
ACTIONLINK,LLC

26
27
28
~~z<~ i s~kzz

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t'1

2

GOOD CAUSE APPEARING based on the Parties' stipulation and ActionLink's financial

3 ~ condition, the Court hereby issues the following Orders:
4

All proceedings in the Cheung Action are stayed through and including March 18,

5 ~ 2015; and
6

2.

Class certification ofthe following subclasses and causes of action under Rule

7 ~ 23(a) and (b)(3) are hereby GRANTED pursuant to the Parties' Stipulation and this Order:
8

Subclass 1 is certified as to: (1)Plaintiffs' First Cause of Action for unreimbursed

9 ~ business expenses incurred pursuant to Labor Code section 2802;(2)Plaintiffs Fourth Cause of
10 Action for unreimbursed business expenses pursuant to Section 17200, et seq. of California's
ll i Business and Professions Code; and (3)Plaintiffs' Fifth Cause of Action for civil penalties under
12 California's Private Attorney Generals Act based on the underlying alleged violations of Labor
13 Code section 2802 pursuant to Labor Code sections 2698-2699.5.
14

Subclass 1 consists of, for purposes of this Stipulation only:

15

all persons in the classification of"Merchandising Specialist" and "Merchandising
Representative," "Assisted Sales Representative,""Brand Advocate,""Product
Demonstrator,""Field Representative,""Retail Sales Associate,""Retail Sales
Representative" and "Retail Sales Specialist," employed by ActionLink in
California from March 22,2009 through the date the Court enters the stipulation to
stay this action and to certify the proposed subclasses (the "Class Period")
(Complaint, p. 2:10-15).

16
17
18

19 As to the PAGA claim, however,for Subclass 1, the PAGA actionable period shall be from
20 March 22, 2012 through the date the Court enters this stipulation to stay this action and to certify
21 the proposed subclasses.
22

Subclass 2 is certified as to:(1)Plaintiffs' Second Cause of Action for Unpaid Accrued

23 Vacation and Paid Days Off pursuant to Labor Code 227.3;(2)Plaintiffs' Third Cause of Action
24 for failure to Pay Compensation at time oftermination (for those members of Subclass 2 who are
25 no longer employed by ActionLink);(3)Plaintiff's Fourth Cause of Action for Unpaid Accrued
26 Vacation and Paid Days Off pursuant to Section 17200, et seq. of California's Business and
27 Professions Code; and (4)and Plaintiffs' Fifth Cause of Action for civil penalties under
28 California's Private Attorney Generals Act based on the underlying alleged violations of Labor
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Code Section 227.3, pursuant to Labor Code sections 2698-2699.5.
?_

Subclass 2 consists of, for purposes of this Stipulation only:

3

all other employees who have worked for at least one year, and who have worked at
least 38 hours or more on a regular basis for Defendant (hereinafter "Full-Time
Class Members")in California during the four years prior to the filing of this
Complaint, seeking payment for their vested vacation pay (including, but not
limited to floating holidays, Paid Absence Days("PAD"), personal holidays, and
other paid time ofd forfeited and not paid to them upon termination to the extent
such payment was required upon termination in California (Complaint, p. 3:3-8).

4
5
6

7,~ As to the PAGA claim, however, for Subclass 2 the PAGA actionable period shall be from
8 ~ March 22, 2012 through the date the Court enters this stipulation to stay this action and to certify
9 ~ the proposed subclasses.
10

The named Plaintiffs Cathlene Cheung, Jeff Koenig, Christian Santos, and Scott Sobczak

11 are hereby appointed as class representatives. Craig Ackermann, Esq. from Ackermann & Tilajef,
12 P.C, Julian Hammond from Hammond Law, PC and John Glugoski of Righetti Glugoski, P.C,
13 class counsel in the parallel state court Adams case, are hereby appointed as class counsel.
14

All pending deadlines in this Action are hereby vacated. The Parties shall file a Joint

15 ~ Status Update on or before March 18, 2015, regarding their plans for mediation, class notice
16 dissemination and/or the setting of further deadlines, including a trial date, and they shall address
17 at that point the outstanding issues related to the inter-relationship between the Cheung and the
18 Adams cases,
19

IT IS SO ORDERED.

20
5/13/14

21

DATED:

2014

22
23
24

THE HONORABLE SUSAN ILLSTON
United States District Court Judge

25
26
27
28
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