Meza v. S.S. Skikos, Inc. et al
Filing
48
Order by Hon. Thelton E. Henderson granting 45 Motion for Preliminary Approval of Settlement. (Attachments: # 1 Exhibit A: Stipulation of Settlement)(tehlc1, COURT STAFF) (Filed on 2/24/2016)
EXHIBIT A
STIPULATION OF SETTLEMENT AND RELEASE
This stipulation of settlement and release (‘Stipulation of Settlement’) is made and entered
into by and between Plaintiff Jose Meza (‘Plaintiff’), individually and on behalf of all others similarly
situated, and Defendants S.S. Skikos, Inc., S.S. Skikos Distribution, Inc., S.S. Skikos Enterprise, LLC,
dba Skikos Trucking Inc. (‘Defendant’ or ‘Defendants’), and their respective counsel of record,
subject to the terms and conditions hereof and the Court’s approval.
A.
Definitions
1.
“Administration Costs” means the actual and direct costs reasonably charged by the
Settlement Administrator for its services in administering the Settlement, currently projected by the
Parties not to exceed Twelve Thousand Dollars ($12,000.00).
2.
“California Class” means all current and former Drivers employed by Defendants in
California during the California Class Period. Members of the California Class are referred to herein
as “California Class Members.”
3.
“California Class Form” means the form notifying California Class Members of their
Individual Work Weeks and estimated Individual Settlement Payment in substantially the form as
Exhibit 1, attached hereto.
4.
“California Class Period” is the period beginning April 27, 2011 through the date of
Preliminary Approval.
5.
“California Class Released Claims” means all claims, demands, rights, liabilities and
causes of action that were or could have been asserted (whether in tort, contract, or otherwise) for
violation of the California Labor Code, the California Business & Professions Code, the Labor Code
Private Attorneys General Act of 2004, the applicable Industrial Welfare Commission Wage Orders or
any similar state or federal law, whether for unpaid wages, economic damages, non-economic
damages, liquidated damages, punitive damages, restitution, penalties, other monies, or other relief
arising out of, relating to, or in connection with any facts and/or claims pled in the complaint, which
are or could be the basis of claims that Defendant failed to provide all wages and overtime wages due,
failed to pay the minimum wage, failed to provide timely or accurate final paychecks, failed to timely
pay compensation, engaged in recordkeeping violations, failed to provide accurate itemized wage
statements, failed to provide meal breaks, failed to authorize and permit rest breaks, and/or engaged in
unfair business practices based on the foregoing violations, at any times during the California Class
Period.
6.
“California FLSA Class” means all current and former Drivers who were employed
by Defendants in California during the California FLSA Class Period. Members of the California
FLSA Class are referred to herein as “California FLSA Class Members.”
7.
“California FLSA Class Period” is the period beginning April 27, 2012 through the
date of Preliminary Approval.
8.
“California FLSA Class Released Claims” means all claims, demands, rights,
liabilities and causes of action that were or could have been asserted (whether in tort, contract, or
otherwise) for violation of the Fair Labor Standards Act whether for unpaid wages, economic
damages, non-economic damages, liquidated damages, punitive damages, restitution, penalties, other
monies, or other relief arising out of, relating to, or in connection with any facts and/or claims pled in
the complaint, which are or could be the basis of claims that Defendant failed to provide all wages and
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overtime wages due, failed to pay the minimum wage and/or engaged in recordkeeping violations, at
any time during the California FLSA Class Period.
9.
“California FLSA Opt In Form” means a proof of claim and release, and consent to
join in substantially the form as Exhibit 2, attached hereto.
10.
“California FLSA Percentage Share” means each California FLSA Class Member’s
Individual Work Weeks divided by the California FLSA Total Work Weeks, as applicable.
11.
“California FLSA Settlement Allocation” means the portion of the Maximum
Settlement Amount allocated to the California FLSA Class. The California FLSA Settlement
Allocation is 10% of the Maximum Settlement Amount.
12.
“California FLSA Total Work Weeks” means the sum of all Individual Work Weeks
for all California FLSA Class Members.
13.
“California Percentage Share” means each California Class Member’s Individual
Work Weeks divided by the California Total Work Weeks.
14.
“California Settlement Allocation” means the portion of the Maximum Settlement
Amount allocated to the California Class. The California Settlement Allocation is 90% of the
Maximum Settlement Amount.
15.
“California Total Work Weeks” means the sum of all Individual Work Weeks for all
California Class Members.
16.
“Claimants” means those California Class Members who do not submit an Exclusion
Letter and those California FLSA Class Members who submit, or previously submitted, a timely
California FLSA Opt In Form.
17.
“Class” means collectively the California Class and California FLSA Class. Members
of the Class are referred to herein as “Class Members.”
18.
“Class Counsel” means Plaintiffs” counsel, Schneider, Wallace, Cottrell, Konecky
Wotkyns LLP and Villegas Carrera, LLP.
19.
“Complaint” means the first amended complaint filed in the Lawsuit on or about
April 27, 2015.
20.
21.
Stewart, P.C.
“Court” means the United States District Court, Northern District of California.
“Defendant’s Counsel” means the law firm of Ogletree, Deakins, Nash, Smoak &
22.
“Exclusion Letter” means a letter submitted by a California Class Member to the
Settlement Administrator and postmarked by the Objection/Exclusion Deadline that includes the
California Class Member’s name and signature and the following statement or something similar to “I
request to be excluded from the class action proceedings taking place in the matter of Meza v. Skikos,
United States District Court, Northern District of California, Case No. 3:15-CV-01889 TEH.”
23.
“Fee and Expense Award” means such award of fees and expenses as the Court may
authorize to be paid to Class Counsel for the services they have rendered and will render to Plaintiffs
and the Class in the Lawsuit. The Fee and Expense Award will not exceed 33 1/3rd% of the
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Maximum Settlement Amount, which is Two Hundred Thirty-three Thousand Three Hundred Ten
Dollars ($233,310.00), plus Class Counsel’s actual out-of-pocket expenses in prosecuting this
Lawsuit, which will not exceed Twenty-two Thousand Dollars ($22,000.00).
24.
“Final Approval” means that the Final Approval Order and Judgment have been
entered by the Court.
25.
“Final Approval Order” means the Order Granting Final Approval of Class
Settlement, which shall be submitted with the motion for final approval.
26.
“Individual Settlement Payment” means the portion of the Net Settlement Proceeds
distributable to each Claimant.
27.
“Individual Work Weeks” means weeks of employment for each Class Member as
reflected by Defendant’s corporate and business records, exclusive of leaves of absence, during the
applicable class period. Approximations and averages will be used to cover periods where data is
missing or otherwise not available.
28.
“Judgment” means the form of Judgment entered by the Court which shall be
submitted with the motion for final approval.
29.
“Lawsuit” means the case Meza et. al. v. S.S. Skikos, Inc., etc., United States District
Court, Northern District of California, Case No. 3:15-cv-01889 TEH.
30.
“Maximum Settlement Amount” means the maximum amount of Seven Hundred
Thousand Dollars ($700,000.00) that Defendant shall pay as a result of this Stipulation of Settlement.
31.
“Mediator” means David Rotman, Esq.
32.
“Net Settlement Proceeds” means the Maximum Settlement Amount less the Fee and
Expense Award, the Service Payments, the PAGA Payment and Administration Costs, as approved
and awarded by the Court. At this time, the Net Settlement Proceeds is estimated to be $417,690.00.
90% of the Net Settlement Proceeds shall be allocated to the California Class and 10% of the Net
Settlement Proceeds shall be allocated to the California FLSA Class.
33.
“Notice” means the Court-approved form of notice to Class Members, substantially in
the form as Exhibit 3, attached hereto.
34.
“Notice Packet” means the Notice, California Class Form and California FLSA Opt In
Form, as applicable.
35.
“Objection/Exclusion Deadline” means the date forty five (45) days following the
date on which the Settlement Administrator first mails the Notice Packet to the Class Members.
36.
“Opt In Deadline” means the date forty five (45) days following the date on which the
Settlement Administrator first mails the Notice Packet to the California FLSA Class Members.
37.
“PAGA Payment” means the sum of Seven Thousand Five Hundred Dollars
($7,500.00), which shall be allocated from the Maximum Settlement Amount to pay all applicable
penalties under PAGA to the Labor and Workforce Development Agency (‘LWDA’).
38.
“Parties” means Plaintiffs, the California Class, the California FLSA Class and
Defendants, collectively.
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39.
“Payment Obligation and Class Release Date” means (a) the date when the Final
Approval Order is signed, if there are no objectors, or (b) in the event there are objectors, thirty-two
days after service of notice of entry of the Final Approval Order and Judgment on the Parties and all
objectors to the Settlement without any appeals or requests for review being taken, or (c) orders
affirming said Final Approval Order and Judgment or denying review after exhaustion of all appellate
remedies, if appeals or requests for review have been taken.
40.
“Payroll Taxes” means the employer’s portion of FICA, FUTA, and all other state and
federal payroll taxes.
41.
“Preliminary Approval” means that the Court has entered an order preliminarily
approving the terms and conditions of this Stipulation of Settlement, including the manner of
providing notice to Class Members.
42.
“Released Parties” means Defendant S.S. Skikos, Inc.; S.S. Skikos Distribution, Inc.;
S.S. Skikos Enterprises, LLC, d/b/a Skikos Trucking, Inc., its past or present successors and
predecessors in interest, subsidiaries, affiliates, parents, officers, directors, shareholders, employees,
agents, principals, heirs, representatives, accountants, auditors, consultants, insurers and reinsurers,
and their respective successors and predecessors in interest, subsidiaries, affiliates, parents and
attorneys.
43.
“Service Payment” means the sum paid to Plaintiff Jose Meza in recognition of his
efforts in obtaining the benefits of the Settlement. The Service Payment shall not exceed Seven
Thousand Five Hundred Dollars ($7,500.00).
44.
Settlement.
“Settlement” means the terms and conditions set forth in this Stipulation of
45.
“Settlement Administrator” means Simpluris or such other entity which the Parties
mutually agree shall serve as Settlement Administrator.
B.
General
46.
Plaintiffs filed the Complaint in the United States District Court, Northern District of
California on April 27, 2015. After Defendants answered the Complaint, the Parties agreed to
exchange informal discovery and participate in a mediation with the Mediator. At the conclusion of
the mediation, the Parties reached a settlement in principle, which is memorialized in this Stipulation
of Settlement.
47.
Defendant denies any liability and wrongdoing of any kind associated with the claims
alleged in the Lawsuit, and further denies that the Lawsuit is appropriate for collective or class
treatment for any purpose other than this Settlement. Defendant contends, among other things, that it
has complied at all times with the Fair Labor Standards Act, the California Labor Code, the Industrial
Welfare Commission Wage Orders, and the California Business and Professions Code.
48.
Plaintiffs believe that the Lawsuit is meritorious and that class and collective
certification is appropriate.
49.
Class Counsel has conducted a thorough investigation into the facts of the Lawsuit,
including informal discovery, a review of company documents and interviews with Class Members.
Class Counsel is knowledgeable about and has done extensive research with respect to the applicable
law and potential defenses to the claims of the Class. Class Counsel has diligently pursued an
investigation of the Class Members’ claims against Defendant. Based on the forgoing data and on
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their own independent investigation and evaluation, Class Counsel is of the opinion that the settlement
with Defendant for the consideration and on the terms set forth in this Stipulation of Settlement is fair,
reasonable, and adequate and is in the best interest of the Class Members in light of all known facts
and circumstances, including the risk of significant delay and uncertainty associated with litigation,
various defenses asserted by Defendant, and numerous other issues. Defendant agrees not to dispute
that the Settlement is fair, reasonable and adequate.
50.
The Parties stipulate and agree to the certification of the Class for purposes of this
Settlement only. Should, for whatever reason, the Court not grant Final Approval, the Parties’
stipulation to class certification as part of the Settlement shall become null and void ab initio and shall
have no bearing on, and shall not be admissible in connection with, the issue of whether or not
certification would be appropriate in a non-settlement context. Defendant expressly reserves its right
and declares that it intends to oppose class certification vigorously should this Settlement not be
granted Final Approval.
C.
Settlement Components
51.
The Settlement in this Lawsuit shall have five components: (1) the Individual
Settlement Payments; (2) the Service Payment; (3) the Fee and Expense Award; (4) the
Administration Costs; and (5) the PAGA Payment. All of these components are included in the
Maximum Settlement Amount and shall be deducted prior to the California Settlement Allocation and
California FLSA Settlement Allocation.
(a)
Payroll Taxes: The Maximum Settlement Amount does not include the
Payroll Taxes, which shall be paid by Defendant separate and apart from the Maximum Settlement
Amount. The Payroll Taxes will be computed by the Settlement Administrator based on the amounts
paid to the Claimants. The Settlement Administrator shall be responsible for making all necessary
payments and government filings in connection with such payments.
(b)
Calculation of the Individual Settlement Payments: The Settlement
Administrator shall have the authority and obligation to calculate the amounts of Individual Settlement
Payments in accordance with the methodology set forth in this Stipulation of Settlement and orders of
the Court. The Parties recognize and agree that the claims for relief in the Lawsuit are extremely
difficult to determine with any certainty for any given year, or at all, and are subject to myriad
differing calculations and formulas. The Parties agree that the formula for allocating the Individual
Settlement Payments to Claimants provided herein is reasonable and that the payments provided
herein are designed to provide a fair settlement to such persons, in light of the uncertainties of the
compensation alleged to be owed to the Class and the calculation of such amounts.
It shall be the responsibility of the Settlement Administrator to timely and properly withhold from
Individual Settlement Payments payable to Claimants all applicable payroll and employment taxes,
but not federal, state, and local income taxes, and to prepare and deliver the necessary tax
documentation and, thereafter, to cause the appropriate deposits of withholding taxes and
informational and other tax return filing to occur. Each Claimant’s share of all applicable payroll and
employment taxes withheld and deposited with the applicable governmental authorities in accordance
with this Stipulation of Settlement shall be a part of, and paid out of, the Individual Settlement
Payment to each Claimant. Each Claimant will be responsible for paying all applicable state, local,
and federal income taxes on all amounts the Claimant receives pursuant to this Stipulation of
Settlement.
The Parties have agreed that the Individual Settlement Payments will be calculated on the basis of the
number of Individual Work Weeks, as applicable. The Individual Settlement Payments for the
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Claimants in the California Class will be calculated by multiplying 90% of the Net Settlement
Proceeds by each California Class Member’s California Percentage Share. The Individual Settlement
Payments for the Claimants in the California FLSA Class will be calculated by multiplying 10% of the
Net Settlement Proceeds by each California FLSA Class Member’s California FLSA Percentage
Share.
The Individual Settlement Payments will be allocated as follows: 25% to settlement of wage claims,
which will be subject to required tax withholdings; and 75% to settlement of claims for liquidated
damages, interest and/or statutory penalties, which will be paid without withholding any amount. The
portion allocated to wages shall be reported on an IRS Form W-2, and the portion allocated to
liquidated damages, interest and statutory penalties shall be reported on an IRS Form 1099.
(c)
Allocation of Unclaimed Funds: If there are unclaimed funds due to
California Class Members submitting Exclusion Letters those unclaimed funds shall be distributed pro
rata to the California Class Members who did not submit Exclusion Letters. If there are unclaimed
funds due to California FLSA Class Members not timely submitting California FLSA Opt In Forms,
those unclaimed funds shall be distributed pro rata to the California FLSA Class Members who did
submit timely California FLSA Opt In Forms.
(d)
Service Payments: Defendant agrees not to challenge Class Counsel’s
request for the Service Payment to the Plaintiff, Jose Meza. The Service Payment will be paid in
addition to Plaintiff Meza’s Individual Settlement Payment. Should the Service Payment approved by
the Court be less than the amount sought, the difference shall be added to the Net Settlement Proceeds
prior to the allocations to the California Class and California FLSA Class. An IRS Form 1099 will be
issued to Plaintiff Meza in connection with the Service Payment.
(e)
Class Counsel’s Fees and Costs: Defendant agrees not to challenge Class
Counsel’s request for its Fee and Expense Award. Should the Fee and Expense Award approved by
the Court be less than the amount sought, the difference shall be added to the Net Settlement Proceeds
prior to the allocations to the California Class and California FLSA Class. A Form 1099 will be
issued to Class Counsel. Payment of the Fee and Expense Award to Class Counsel shall constitute full
satisfaction of any obligation to pay any amounts to any person, attorney or law firm for attorneys’
fees, expenses or costs in the Lawsuit incurred by any attorney on behalf of Plaintiffs or the Class, and
shall relieve Defendant and Defendant’s Counsel of any other claims or liability to any other attorney
or law firm for any attorneys’ fees, expenses and/or costs to which any of them may claim to be
entitled on behalf of Plaintiffs and/or the Class. Upon receipt of the Fee and Expense Award, Class
Counsel, Plaintiff and the Class will be deemed to have released Defendant from any and all claims
for fees and costs resulting from the Lawsuit.
D.
Release by the California Class.
52.
Upon the Payment Obligation and Class Release Date, the California Class Members
(other than those who submit an Exclusion Letter) will fully release the California Class Released
Claims and agree not to sue or otherwise make a claim against any of the Released Parties for the
California Class Released Claims. The Individual Settlement Payments shall be paid to California
Class Claimants specifically in exchange for the release of the Released Parties from the California
Class Released Claims and the covenant not to sue concerning the California Class Released Claims.
53.
The release of claims provided by this Stipulation of Settlement includes California
Class Members’ California Class Released Claims, which a California Class Member does not know
or suspect to exist in his or her favor against Defendant as of the date of Final Approval. Each
California Class Member, including Plaintiff, waives all rights and benefits afforded by section 1542
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of the California Civil Code as to their California Class Released Claims, and does so understanding
the significance of that waiver. Section 1542 provides:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.
E.
Release by the California FLSA Class
54.
Upon the Payment Obligation and Class Release Date, the California FLSA Class
Members who submit (and who previously submitted) a timely and valid California FLSA Opt In
Form will fully release the California FLSA Class Released Claims and agree not to sue or otherwise
make a claim against any of the Released Parties for the California FLSA Class Released Claims. The
Individual Settlement Payments shall be paid to California FLSA Class Claimants specifically in
exchange for the release of the Released Parties from the California FLSA Class Released Claims and
the covenant not to sue concerning the California FLSA Class Released Claims.
55.
The release of claims provided by this Stipulation of Settlement includes California
FLSA Class Members’ California FLSA Class Released Claims which a California FLSA Class
Member does not know or suspect to exist in his or her favor against Defendant as of the date of Final
Approval.
F.
Release of Additional Claims & Rights by Plaintiff
56.
Upon Preliminary Approval, Plaintiff Jose Meza hereby fully releases the Released
Parties from any and all claims, demands, obligations, causes of action, rights, or liabilities of any
kind under local, state or federal law, which have been or could have been asserted against the
Released Parties arising out of or relating to Plaintiff’s employment by Defendant and termination
thereof (as applicable) and/or any other event, act, occurrence, or omission taking place on or before
the date the Court grants Final Approval of this Settlement. The Parties acknowledge that the
foregoing release was separately bargained for after the Parties reached agreement on the terms of the
relief for the Class and is a material element of the Agreement.
57.
This release specifically includes any and all claims, demands, obligations and/or
causes of action for damages, restitution, penalties, interest, and attorneys’ fees and costs relating to or
in any way connected with the matters referred to herein, whether or not known or suspected to exist,
and whether or not specifically or particularly described herein. Plaintiff expressly waives all rights
and benefits afforded by California Civil Code Section 1542, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFEC1ED HIS OR HER SETTLEMENT
WITH THE DEBTOR.
G.
Preliminary Approval
58.
Plaintiff will request that the Court set a hearing as soon as possible to consider
Preliminary Approval of the Settlement. In conjunction with such hearing, Class Counsel shall submit
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this Stipulation of Settlement, together with the exhibits attached hereto, and any other documents
necessary to implement the Settlement.
59.
Class Counsel shall provide a copy of the draft motion for preliminary approval to
Defendant’s Counsel for review three (3) calendar days before filing it with the Court.
H.
Notice and Claim Process.
60.
Within five (5) calendar days after entry of the order granting Preliminary Approval,
Defendant shall provide to the Settlement Administrator a list of all Class Members, including their
name, social security number, last known address, telephone number, and Individual Work Weeks.
61.
Within ten (10) calendar days after receiving the Class Member list from Defendant,
the Settlement Administrator shall send the Notice Packet via first class mail to all Class Members.
Prior to the initial mailing, the Settlement Administrator will check the addresses provided by
Defendant through the National Change of Address System.
62.
If an original Notice Packet is returned as undeliverable with a forwarding address
provided by the United States Postal Service, the Settlement Administrator will promptly resend a
Notice Packet to that forwarding address, along with a brief letter for California FLSA Class Members
stating that the recipient of the Notice Packet has until the original deadline set forth on the Notice or
seven (7) days after the re-mailing of the Notice Packet (whichever is later) to submit a California
FLSA Opt In Form. If an original Notice Packet is returned as undeliverable without a forwarding
address, the Settlement Administrator will make reasonable efforts to locate forwarding addresses,
including a skip trace, and if it obtains a more recent address, will resend a Notice Packet, along with a
brief letter for California FLSA Class Members stating that the recipient of the Notice Packet has until
the original deadline set forth on the Notice or seven (7) days after the re-mailing of the Notice Packet
(whichever is later) to submit a California FLSA Opt In Form.
63.
At least seven (7) calendar days prior to the final approval hearing, the Settlement
Administrator will provide a declaration of due diligence and proof of mailing with regard to the
mailing of the Notice Packet to counsel for all Parties.
64.
If the Settlement Administrator receives a California FLSA Opt In Form on or before
the Opt In Deadline but it is unsigned by the California FLSA Class Member, then within five (5)
calendar days of its receipt of the defective form, the Settlement Administrator shall, after retaining a
copy of the defective form, mail the defective form back to the California FLSA Class Member with
instructions on how to cure the defect and instructions that the corrected form must be received by the
Settlement Administrator by the original deadline set forth on the Notice or seven (7) days after the
mailing of the defective form (whichever is later). If the California FLSA Class Member’s Opt In
Form remains defective after this opportunity to cure, unless the Parties agree otherwise, it shall be
rejected by the Settlement Administrator and the Settlement Administrator shall send that person a
notice stating the reason the claim was denied.
65.
To the extent a Claimant disputes the Individual Work Weeks shown in his or her
California Class Form or California FLSA Opt In Form, the Claimant may produce evidence to the
Settlement Administrator establishing the dates he or she contends to have worked for Defendant as a
Class Member. Defendant’s records will be presumed determinative. The Settlement Administrator
shall notify counsel for the Parties of any disputes. Defendant shall review its records and provide
further information to the Settlement Administrator, as necessary. The Settlement Administrator shall
resolve any disputes and notify counsel for the Parties of its decision.
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66.
The Settlement Administrator’s determination of eligibility for any Individual
Settlement Payments under the terms of this Stipulation of Settlement shall be conclusive, final and
binding on all Parties and all Class Members, so long as the Settlement Administrator has first
consulted with the Parties regarding any disputes or questions as to eligibility.
67.
The Notice shall provide that California Class Members who wish to exclude
themselves from the Settlement must submit an Exclusion Letter. Any California Class Member who
properly requests exclusion using this procedure will not be entitled to any payment from the
Settlement and will not be bound by the Stipulation of Settlement or have any right to object, appeal
or comment thereon. California Class Members who fail to submit an Exclusion Letter shall be bound
by all terms of the Stipulation of Settlement and any judgment entered in the Lawsuit if the Settlement
is approved by the Court.
68.
If 10% or more of the California Class Members submit an Exclusion Letter,
Defendant shall have the option of canceling the settlement and all actions taken in its furtherance will
be null and void. Defendant must exercise this right within seven (7) calendar days after the
Settlement Administrator notifies the Parties of the number of Exclusion Letters received, which the
Settlement Administrator must do within two (2) calendar days after the Objection/Exclusion
Deadline.
69.
In order to object to the Settlement, a California Class Member must file his or her
objection with the Court no later than the Objection/Exclusion Deadline, or seven (7) days after the remailing of the Notice Packet to that Class Member, whichever is later.
70.
California FLSA Class Members must mail or deliver a completed California FLSA
Opt In Form, as applicable, to the Settlement Administrator by the Opt In Deadline, or seven (7) days
after the re-mailing of the Notice Packet to that Class Member, whichever is later. The timeliness of
submitted California FLSA Opt In Forms will be determined by valid postmark. In the event that the
postmark is illegible or missing, the California FLSA Opt In Form shall be deemed timely if it is
received within five (5) days after the Opt In Deadline.
71.
Defendant will provide the Settlement Administrator with sufficient funds to make all
payments due to Plaintiff, Class Counsel, the LWDA, the Settlement Administrator, and the
Claimants, plus any owed Payroll Taxes as soon as practicable, but no later than three (3) business
days after the Payment Obligation and Class Release Date.
72.
The Settlement Administrator will mail or wire all required payments no later than
fourteen (14) calendar days after the Payment Obligation and Class Release Date. If a Claimant’s
check is returned to the Settlement Administrator, the Settlement Administrator will make all
reasonable efforts to re-mail it to the Claimant at his or her correct address. It is expressly understood
and agreed that the checks for the Individual Settlement Payments will become void and no longer
available if not cashed within one hundred eighty days (180) days after mailing. Any funds from
uncashed checks for Claimants shall escheat to the California Industrial Relations Unclaimed Wages
Fund. Upon completion of administration of the Settlement, the Settlement Administrator shall
provide written certification of such completion to the Court, Class Counsel and Defendant’s Counsel.
73.
No person shall have any claim against Defendant, Defendant’s Counsel, Plaintiff, the
Class, Class Counsel or the Settlement Administrator based on mailings, distributions and payments
made in accordance with this Stipulation of Settlement.
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I.
Motion for Final Approval.
74.
Plaintiff shall timely file the motion for final approval and request entry of the Final
Approval Order and Judgment. Two (2) business days prior to filing the motion for final approval of
the Settlement, Class Counsel shall provide a draft of the motion to Defendant’s Counsel for review.
J.
No Effect on Employee Benefits.
75.
The Individual Settlement Payments and the Service Payments shall not have any
effect on the eligibility for, or calculation of, any employee benefits (e.g. vacation, retirement plans,
etc.) of Claimants or Plaintiffs. No benefit, including but not limited to 401K benefits, shall increase
or accrue as a result of any payment made as a result of this Settlement.
K.
Publicity.
76.
Plaintiffs and Class Counsel will keep the terms of the settlement confidential until
the preliminary approval papers are filed. This shall not restrict Class Counsel from posting
information on their respective firm websites to notify Class Members of the Settlement and provide
them with the Notice, or communicating directly with Class Members about the Settlement.
L.
Voiding the Agreement.
77.
In the event of any of the following: (i) the Court does not approve the scope of the
California Class Released Claims or California FLSA Class Released Claims; (ii) the Court finds the
Maximum Settlement Amount is insufficient to warrant approval; or (iii) 10% or more of the
California Class Members submit an Exclusion Letter, Defendant may elect to reject this Settlement
and the Stipulation of Settlement shall be null and void ab initio and any order or judgment entered by
the Court in furtherance of this Settlement shall be treated as withdrawn or vacated by stipulation of
the Parties. In such case, the Class Members and Defendant shall be returned to their respective
statuses as of the date immediately prior to the execution of this Stipulation of Settlement. In the
event an appeal is filed from the Final Approval Order and Judgment, or any other appellate review is
sought prior to the Payment Obligation and Class Release Date, administration of the Settlement shall
be stayed pending final resolution of the appeal or other appellate review.
M.
Parties’ Authority.
78.
The signatories hereto represent that they are fully authorized to enter into this
Stipulation of Settlement and bind the Parties to the terms and conditions hereof.
N.
Mutual Full Cooperation.
79.
The Parties and their counsel agree to fully cooperate with each other to accomplish
the terms of this Stipulation of Settlement, including but not limited to, execution of such documents
and to take such other action as may reasonably be necessary to implement the terms of this
Stipulation of Settlement. The Parties to this Stipulation of Settlement shall use their best efforts,
including all efforts contemplated by this Stipulation of Settlement and any other efforts that may
become necessary by order of the Court, or otherwise, to effectuate this Stipulation of Settlement and
the terms set forth herein. In the event the Parties are unable to reach agreement on the form or
content of any document needed to implement the Settlement, or on any supplemental provisions or
actions that may become necessary to effectuate the terms of this Stipulation of Settlement, the Parties
shall seek the assistance of the Court or the Mediator to resolve such disagreement.
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O.
No Prior Assignments.
80.
The Parties hereto represent, covenant, and warrant that they have not directly or
indirectly assigned, transferred, encumbered, or purported to assign, transfer, or encumber to any
person or entity any portion of any liability, claim, demand, action, cause of action or rights released
and discharged by this Stipulation of Settlement.
P.
No Admission.
81.
Nothing contained herein, nor the consummation of this Stipulation of Settlement, is
to be construed or deemed an admission of liability, culpability, negligence, or wrongdoing on the part
of Defendant or any of the other Released Parties. Each of the Parties hereto has entered into this
Stipulation of Settlement with the intention of avoiding further disputes and litigation with the
attendant risk, inconvenience and expenses. This Stipulation of Settlement is a settlement document
and shall, pursuant to California Evidence Code section 1152 and/or Federal Rule of Evidence 408
and/or any other similar law, be inadmissible as evidence in any proceeding, except an action or
proceeding to approve the settlement, and/or interpret or enforce this Stipulation of Settlement.
Q.
Construction.
82.
The Parties hereto agree that the terms and conditions of this Stipulation of Settlement
are the result of lengthy, intensive arms’ length negotiations between the Parties and that this
Stipulation of Settlement shall not be construed in favor of or against any of the Parties by reason of
the extent to which any Party or his or its counsel participated in the drafting of this Stipulation of
Settlement.
R.
Jurisdiction of the Court.
83.
Except for those matters to be resolved by the Mediator or the Settlement
Administrator as expressly stated, any dispute regarding the interpretation or validity of or otherwise
arising out of this Stipulation of Settlement, or relating to the Lawsuit or the Class Released Claims,
shall be subject to the exclusive jurisdiction of the Court, and the Plaintiffs, Class Members, and
Defendant agree to submit to the personal and exclusive jurisdiction of the Court. The Court shall
retain jurisdiction solely with respect to the interpretation, implementation and enforcement of the
terms of this Stipulation of Settlement and all orders and judgments entered in connection therewith,
and the Parties and their counsel submit to the jurisdiction of the Court for purposes of interpreting,
implementing and enforcing the settlement embodied in this Stipulation of Settlement and all orders
and judgments entered in connection therewith.
S.
California Law Governs.
84.
All terms of this Stipulation of Settlement and the exhibits hereto shall be governed
by and interpreted according to the laws of the State of California, regardless of its conflict of laws.
T.
Invalidity of Any Provision.
85.
The Parties request that before declaring any provision of this Stipulation of
Settlement invalid, the Court shall first attempt to construe all provisions valid to the fullest extent
possible consistent with applicable precedents.
11
U.
Headings.
86.
The headings contained herein are inserted as a matter of convenience and for
reference, and in no way define, limit, extend, or describe the scope of this Stipulation of Settlement
or any provision hereof.
V.
Exhibits.
87.
The terms of this Stipulation of Settlement include the terms set forth herein and the
attached Exhibits 1-3, which are incorporated by this reference as though fully set forth herein. Any
exhibits to this Stipulation of Settlement are an integral part of the Settlement.
W.
Amendment or Modification.
88.
This Stipulation of Settlement may be amended or modified only by a written
instrument signed by counsel for all Parties or their successors-in-interest.
X.
Entire Agreement.
89.
This Stipulation of Settlement, including Exhibits 1-3 attached hereto, contains the
entire agreement between Plaintiff and Defendant relating to the Settlement and transactions
contemplated hereby, and all prior or contemporaneous agreements, understandings, representations,
and statements, whether oral or written and whether by a party or such party’s legal counsel, are
merged herein. No rights hereunder may be waived except in writing.
Y.
Binding On Assigns.
90.
This Stipulation of Settlement shall be binding upon and inure to the benefit of the
Parties hereto and their respective heirs, trustees, executors, administrators, successors and assigns.
Z.
No Solicitation re: Claims, Objections, Exclusions or Appeals.
91.
The Parties and their counsel shall not solicit or otherwise encourage Class Members
to submit written objections to the Settlement, to request exclusion or to appeal from the Court’s Final
Approval Order and Judgment.
AA.
Interim Stay of Proceedings.
92.
The Parties agree to hold in abeyance all proceedings in the Lawsuit, except such
proceedings necessary to implement and complete the Settlement, pending the final approval hearing
to be conducted by the Court.
BB.
CC. Counterparts.
93.
This Stipulation of Settlement may be executed in counterparts, and when each of the
Parties has signed and delivered at least one such counterpart, each counterpart shall be deemed an
original, and, when taken together with other signed counterparts, shall constitute one fully-signed
Stipulation of Settlement, which shall be binding upon and effective as to all Parties.
12
EXHIBIT 1
CALIFORNIA CLASS FORM
Meza, et. al. v. S.S. Skikos, Inc., et al., Case No. 3:15-cv-01889-TEH
United States District Court, Northern District of California
YOUR ESTIMATED CALIFORNIA CLASS INDIVIDUAL SETTLEMENT PAYMENT: $______.
This estimate is based on corporate and business records maintained by Skikos, which show the total number of weeks
you were employed by Skikos as a California Class Member, excluding leaves of absence. Your Individual Work Weeks
are:________________.
Information regarding the Class, Settlement, and the Lawsuit is contained in the Notice.
I.
Please Make any Name/Address Corrections Below:
«First» «Last»
__________________________________________
«Address1»
__________________________________________
«Address2»
__________________________________________
«City»
__________________________________________
«State»
__________________________________________
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