Scott et al v. Comcast Cable Communications Management, LLC

Filing 57

STIPULATION AND ORDER re 52 to Approve FLSA Settlement and Dismiss Plaintiff Ken Fassler's FLSA Claim with Prejudice filed by Comcast Cable Communications Management, LLC. Signed by Judge Edward M. Chen on 2/9/18. (bpfS, COURT STAFF) (Filed on 2/9/2018)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 MORGAN, LEWIS & BOCKIUS LLP Daryl S. Landy, Bar No. 136288 daryl.landy@morganlewis.com 600 Anton Boulevard, Suite 1800 Costa Mesa, CA 92626 Tel: +1.949.399.7000 Fax: +1.949.399.7001 MORGAN, LEWIS & BOCKIUS LLP Jennifer Svanfeldt, Bar No. 233248 jennifer.svanfeldt@morganlewis.com One Market, Spear Street Tower San Francisco, CA 94105-1596 Tel: +1.415.442.1000 Fax: +1.4125.442.1001 Attorneys for Defendant COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC SETAREH LAW GROUP Shaun Setareh, Bar No. 204514 shaun@setarehlaw.com Thomas Segal, Bar No. 222791 thomas@setarehlaw.com 9454 Wilshire Boulevard, Suite 907 Beverly Hills, CA 90212 Tel: 310.888.7771 Fax: 310.888.0109 Attorneys for Plaintiffs ANDRE SCOTT, KEN FASSLER and ELIJAH MAXWELL-WILSON 18 UNITED STATES DISTRICT COURT 19 NORTHERN DISTRICT OF CALIFORNIA 20 21 22 23 ANDRE SCOTT, an individual; KEN FASSLER, an individual; ELIJAH MAXWELLWILSON, an individual, and on behalf of themselves, all other similarly situated, Plaintiffs, v. 24 25 Case No. 3:16-cv-06869-EMC STIPULATION TO APPROVE FLSA SETTLEMENT AND DISMISS PLAINTIFF KEN FASSLER’S FLSA CLAIM WITH PREJUDICE; [PROPOSED] ORDER COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC, a Delaware Corporation; and DOES 1-50, Inclusive, 26 Defendants. 27 28 STIPULATION TO APPROVE FLSA SETTLEMENT AND DISMISS FLSA CLAIM; [PROPOSED] ORDER MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW COSTA MESA DB2/ 31894644.5 Case No. 3:16-cv-06869-EMC 1 Pursuant to Federal Rule of Civil Procedure 41 and 29 U.S.C. Section 216, Plaintiffs 2 KEN FASSLER (“Plaintiff”) and Defendant COMCAST CABLE COMMUNICATIONS 3 MANAGEMENT, LLC (“Comcast”) (collectively the “Parties”), by and through their counsel of 4 record (collectively referred to as the “Parties”), hereby stipulate as follows: 5 6 7 WHEREAS, Comcast employed Plaintiff as a Direct Sales Representative from May 14, 2012 to July 8, 2014, with Plaintiff’s last day worked at Comcast occurring on April 17, 2014; WHEREAS, Plaintiff filed his Complaint in this Court on November 30, 2016 (“Action”) 8 which alleges the following six claims for relief under California and Federal law: (1) failure to 9 provide meal periods under California law; (2) failure to provide rest breaks under California 10 law; (3) failure to pay hourly and overtime compensation under California law; (4) waiting time 11 penalties for late final pay under California law; (5) unfair competition pursuant to California 12 Business and Professions Code §§ 17200 et seq.; and (6) overtime under the Fair Labor 13 Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq.; 14 15 WHEREAS, Plaintiff sought to proceed as a class action under Federal Rule of Civil Procedure 23 and a collective action under action under 29 U.S.C. Section 216; 16 WHEREAS, this Action was not conditionally certified or certified as a collective action; 17 WHEREAS, this Action was not certified as a class action; 18 WHEREAS, Plaintiff filed the operative First Amended Complaint (“FAC”) on January 19 20 31, 2017 (Dkt. No. 17); WHEREAS, Plaintiff alleged in the FAC that he was incorrectly classified as an exempt 21 outside salesperson because he spent more than half of his time completing tasks other than sales 22 such as installing equipment, picking up and dropping off equipment, carrying various equipment 23 and tools in their trucks, traveling to and from installation, checking on the status of orders and 24 doing data entry. (Dkt. No. 17 at ¶ 11); 25 26 WHEREAS, Plaintiff alleged in the FAC that he typically worked approximately 55 hours per week (Dkt. No. 17 at ¶ 5); 27 28 MORGAN, LEWIS & BOCKIUS LLP 1 ATTORNEYS AT LAW COSTA MESA DB2/ 31894644.5 STIPULATION TO APPROVE FLSA SETTLEMENT AND DISMISS FLSA CLAIM; [PROPOSED] ORDER CASE NO. 3:16-CV-06869-EMC 1 WHEREAS, Comcast vigorously denied that Plaintiff was incorrectly classified as an 2 exempt outside salesperson, and produced several documents in discovery showing that 3 Plaintiff’s primary duty was door-to-door sales of Comcast’s residential customer services and 4 that Comcast realistically expected him to spend more than half his time making sales away from 5 Comcast’s offices; 6 7 WHEREAS, Comcast also contends that Plaintiff’s FLSA claim is barred by the two-year statute of limitations in the FLSA (see 29 U.S.C. § 255); 8 WHEREAS, Comcast took Plaintiff’s deposition on August 9, 2017; 9 WHEREAS, Plaintiff admitted at deposition that Comcast expected him primarily to 10 11 12 13 spend his time making sales door-to-door and away from Comcast’s offices; WHEREAS, following Plaintiff’s deposition, the Parties agreed to resolve Plaintiff’s claims in this Action; WHEREAS, the Parties have engaged in good faith, arms-length settlement discussions, 14 where both Parties were represented by counsel, and reached an agreement to settle Plaintiff’s 15 claims against Comcast; 16 WHEREAS, as part of the Parties’ confidential settlement of all of Plaintiff’s claims in 17 this Action, Comcast has agreed to pay Plaintiff One Thousand Five Hundred Seventy-Eight 18 Dollars and Forty-Five Cents ($1,578.45) for the dismissal with prejudice and release of his 19 Sixth Claim for Relief, which alleges that Comcast violated the FLSA; 20 WHEREAS, the payment above is based on (1) Plaintiff’s 18.57 weeks worked during 21 the claimed three-year statute of limitations period from the date Plaintiff filed the Action, and 22 (2) five hours of weekly overtime over that time period; 23 24 25 26 27 28 WHEREAS, the Parties have resolved Plaintiff’s Sixth Claim for Relief to avoid the cost and uncertainty of litigation; and WHEREAS, in consideration for the settlement amount, Plaintiff signed a release of his Sixth Claim for Relief for violation of the FLSA; THEREFORE, the Parties hereby stipulate that the settlement amount above represents a fair and reasonable resolution of a bona fide dispute and that Plaintiff’s Sixth Claim for Relief MORGAN, LEWIS & BOCKIUS LLP 2 ATTORNEYS AT LAW COSTA MESA DB2/ 31894644.5 STIPULATION TO APPROVE FLSA SETTLEMENT AND DISMISS FLSA CLAIM; [PROPOSED] ORDER 1 under the FLSA be dismissed with prejudice with each party bearing its own costs and attorneys’ 2 fees. 3 Dated: January 12, 2018 SETAREH LAW GROUP 4 5 By /s/ Thomas Segal Shaun Setareh Thomas Segal Attorneys for Plaintiffs ANDRE SCOTT, KEN FASSLER and ELIJAH MAXWELL-WILSON 6 7 8 9 Dated: January 12, 2018 MORGAN, LEWIS & BOCKIUS LLP 10 By /s/ Daryl S. Landy Daryl S. Landy Attorneys for Defendant COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC 11 12 13 14 ATTESTATION RE ELECTRONIC SIGNATURES 15 16 17 18 19 I, DARYL S. LANDY, attest pursuant to Northern District Local Rule 5-1(i)(3) that all other signatories to this document, on whose behalf this filing is submitted, concur in the filing’s content and have authorized this filing. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Dated: January 12, 2018 /s/ Daryl S. Landy Daryl S. Landy 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP 3 ATTORNEYS AT LAW COSTA MESA DB2/ 31894644.5 STIPULATION TO APPROVE FLSA SETTLEMENT AND DISMISS FLSA CLAIM; [PROPOSED] ORDER 2 Good cause appearing based upon the Recitals in the Parties’ Stipulation to Approve 3 FLSA Settlement and Dismiss Plaintiff Ken Fassler’s FLSA Claim with Prejudice, the Court 4 hereby approves the release of Plaintiff Ken Fassler’s Sixth Claim for Relief in the First 5 Amended Complaint, and the Sixth Claim for Relief is DISMISSED WITH PREJUDICE. 6 S DISTRICT TE C TA _____________________________________ 2/9/2018 Dated: ___________________ 9 O ORD IT IS S 10 11 RT ER 13 A H 12 n M. Che LI NO dward Judge E ER FO 8 R NIA Hon. Edward M. Chen U.S. DISTRICT COURTED JUDGE UNIT ED 7 S [PROPOSED] ORDER RT U O 1 N D IS T IC T R OF C 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP 4 ATTORNEYS AT LAW COSTA MESA DB2/ 31894644.5 STIPULATION TO APPROVE FLSA SETTLEMENT AND DISMISS FLSA CLAIM; [PROPOSED] ORDER

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