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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MORGAN, LEWIS & BOCKIUS LLP
Daryl S. Landy, Bar No. 136288
[e-mail]
600 Anton Boulevard, Suite 1800
Costa Mesa, CA 92626
Tel: [phone]
Fax: [phone]
MORGAN, LEWIS & BOCKIUS LLP
Jennifer Svanfeldt, Bar No. 233248
[e-mail]
One Market, Spear Street Tower
San Francisco, CA 94105-1596
Tel: [phone]
Fax: [phone]
Attorneys for Defendant
COMCAST CABLE COMMUNICATIONS
MANAGEMENT, LLC
SETAREH LAW GROUP
Shaun Setareh, Bar No. 204514
[e-mail]
Thomas Segal, Bar No. 222791
[e-mail]
9454 Wilshire Boulevard, Suite 907
Beverly Hills, CA 90212
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiffs
ANDRE SCOTT, KEN FASSLER and
ELIJAH MAXWELL-WILSON

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANDRE SCOTT, an individual; KEN
FASSLER, an individual; ELIJAH MAXWELLWILSON, an individual, and on behalf of
themselves, all other similarly situated,
Plaintiffs,
v.

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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,

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Defendants.
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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

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Pursuant to Federal Rule of Civil Procedure 41 and 29 U.S.C. Section 216, Plaintiffs

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KEN FASSLER (“Plaintiff”) and Defendant COMCAST CABLE COMMUNICATIONS

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MANAGEMENT, LLC (“Comcast”) (collectively the “Parties”), by and through their counsel of

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record (collectively referred to as the “Parties”), hereby stipulate as follows:

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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”)

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which alleges the following six claims for relief under California and Federal law: (1) failure to

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provide meal periods under California law; (2) failure to provide rest breaks under California

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law; (3) failure to pay hourly and overtime compensation under California law; (4) waiting time

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penalties for late final pay under California law; (5) unfair competition pursuant to California

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Business and Professions Code §§ 17200 et seq.; and (6) overtime under the Fair Labor

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Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq.;

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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;

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WHEREAS, this Action was not conditionally certified or certified as a collective action;

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WHEREAS, this Action was not certified as a class action;

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WHEREAS, Plaintiff filed the operative First Amended Complaint (“FAC”) on January

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31, 2017 (Dkt. No. 17);
WHEREAS, Plaintiff alleged in the FAC that he was incorrectly classified as an exempt

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outside salesperson because he spent more than half of his time completing tasks other than sales

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such as installing equipment, picking up and dropping off equipment, carrying various equipment

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and tools in their trucks, traveling to and from installation, checking on the status of orders and

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doing data entry. (Dkt. No. 17 at ¶ 11);

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WHEREAS, Plaintiff alleged in the FAC that he typically worked approximately 55 hours
per week (Dkt. No. 17 at ¶ 5);

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MORGAN, LEWIS &
BOCKIUS LLP

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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

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WHEREAS, Comcast vigorously denied that Plaintiff was incorrectly classified as an

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exempt outside salesperson, and produced several documents in discovery showing that

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Plaintiff’s primary duty was door-to-door sales of Comcast’s residential customer services and

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that Comcast realistically expected him to spend more than half his time making sales away from

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Comcast’s offices;

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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);

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WHEREAS, Comcast took Plaintiff’s deposition on August 9, 2017;

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WHEREAS, Plaintiff admitted at deposition that Comcast expected him primarily to

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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,

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where both Parties were represented by counsel, and reached an agreement to settle Plaintiff’s

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claims against Comcast;

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WHEREAS, as part of the Parties’ confidential settlement of all of Plaintiff’s claims in

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this Action, Comcast has agreed to pay Plaintiff One Thousand Five Hundred Seventy-Eight

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Dollars and Forty-Five Cents ($1,578.45) for the dismissal with prejudice and release of his

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Sixth Claim for Relief, which alleges that Comcast violated the FLSA;

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WHEREAS, the payment above is based on (1) Plaintiff’s 18.57 weeks worked during

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the claimed three-year statute of limitations period from the date Plaintiff filed the Action, and

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(2) five hours of weekly overtime over that time period;

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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

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ATTORNEYS AT LAW
COSTA MESA

DB2/ 31894644.5

STIPULATION TO APPROVE FLSA
SETTLEMENT AND DISMISS FLSA
CLAIM; [PROPOSED] ORDER

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under the FLSA be dismissed with prejudice with each party bearing its own costs and attorneys’

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fees.

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Dated: January 12, 2018

SETAREH LAW GROUP

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By /s/ Thomas Segal
Shaun Setareh
Thomas Segal
Attorneys for Plaintiffs
ANDRE SCOTT, KEN FASSLER and ELIJAH
MAXWELL-WILSON

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Dated: January 12, 2018

MORGAN, LEWIS & BOCKIUS LLP

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By /s/ Daryl S. Landy
Daryl S. Landy
Attorneys for Defendant
COMCAST CABLE COMMUNICATIONS
MANAGEMENT, LLC

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ATTESTATION RE ELECTRONIC SIGNATURES

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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

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MORGAN, LEWIS &
BOCKIUS LLP

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ATTORNEYS AT LAW
COSTA MESA

DB2/ 31894644.5

STIPULATION TO APPROVE FLSA
SETTLEMENT AND DISMISS FLSA
CLAIM; [PROPOSED] ORDER

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Good cause appearing based upon the Recitals in the Parties’ Stipulation to Approve

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FLSA Settlement and Dismiss Plaintiff Ken Fassler’s FLSA Claim with Prejudice, the Court

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hereby approves the release of Plaintiff Ken Fassler’s Sixth Claim for Relief in the First

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Amended Complaint, and the Sixth Claim for Relief is DISMISSED WITH PREJUDICE.

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S DISTRICT
TE
C
TA
_____________________________________

2/9/2018
Dated: ___________________

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O ORD

IT IS S

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Judge E

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Hon. Edward M. Chen
U.S. DISTRICT COURTED
JUDGE

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[PROPOSED] ORDER

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MORGAN, LEWIS &
BOCKIUS LLP

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ATTORNEYS AT LAW
COSTA MESA

DB2/ 31894644.5

STIPULATION TO APPROVE FLSA
SETTLEMENT AND DISMISS FLSA
CLAIM; [PROPOSED] ORDER