Engel v. Serono International S.A.

Filing 59

ORDER re 58 GRANTING STIPULATION to Correct Subclass B Designation. Signed by Judge CLAUDIA WILKEN on 3/5/09. (scc, COURT STAFF) (Filed on 3/5/2009)

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Paul J. Hall (State Bar No. 66084) Sarah M. Wells (State Bar No. 238417) Krista P. Bell (State Bar No. 245884) NIXON PEABODY LLP One Embarcadero Center, 18th Floor San Francisco, California 94111-3600 Telephone: [phone] Fax: [phone] Attorneys for Defendant EMD SERONO, INC. Steve G. Zieff (State Bar No. 84222) David A. Lowe (State Bar No. 178811) Kenneth J. Sugarman (State Bar No. 195059) John T. Mullan (State Bar No. 221149) RUDY, EXELROD & ZIEFF, LLP 351 California Street, Suite 700 San Francisco, CA 94104 Telephone: [phone] Fax: [phone] Attorneys for Plaintiff PAUL ENGEL

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

PAUL ENGEL, on behalf of himself and others similarly situated, Plaintiff, vs. EMD SERONO, INC.,, Defendant.

No. C 07 0117 CW ORDER GRANTING STIPULATION TO CORRECT SUBCLASS B DESIGNATION

It is hereby stipulated by and between Plaintiff Paul Engel and the Class he represents, and Defendant EMD Serono, Inc., by and through their counsel of record, and subject to the approval of this Court, that: WHEREAS the Court granted final approval of the parties' Stipulation of Settlement and Release ("Stipulation of Settlement") by its May 8, 2008 Order: (1) Finally Approving Class Action
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11221541.3

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Settlement And Plan Of Distribution; (2) Entering Final Judgment; (3) Approving Service Payment To Named Plaintiff Paul Engel; (4) Approving The Payment Of Reasonable Costs Of Administration; And (5) Reserving Jurisdiction (the "Final Approval Order"); WHEREAS the Final Approval Order, paragraph 14, reserved to the Court continuing jurisdiction over the settlement administration in this action; WHEREAS on July 30, 2008, the Court previously signed a similar Stipulation and Order to Correct Subclass B Designation in Final Approval Order to include Mr. Phineas Leevy as a member of Subclass B, entitled to receive the benefits of the Settlement and subject to all the terms and conditions of the Stipulation of Settlement and the Final Approval Order; WHEREAS during the course of the settlement administration the parties have noted the need to add three additional persons to Subclass B ("the California Class"); WHEREAS Ms. Gina Guinasso formerly was employed by EMD Serono as a Key Account Manager ("KAM") and in that capacity was eligible to be a member of the Class in this action; WHEREAS Ms. Guinasso was employed by EMD Serono as a KAM resident in California from the beginning of the Class period on January 8, 2003 until May 1, 2005 and thereafter was employed by it in a different capacity in Washington state; WHEREAS EMD Serono recently discovered that, through clerical oversight, Ms. Guinasso was not included on the list of Subclass B members that received the Notice Of Collective Action Lawsuit ("Class Notice"), and Ms. Guinasso did not opt-in and did not become a member of Subclass A (the "FLSA Collective Action Class"); WHEREAS Subclass A is an opt-in class pursuant to the FLSA, whereas Subclass B is an opt-out class pursuant to Rule 23, F.R.Civ.P.; WHEREAS the Stipulation of Settlement contained a list of members of Subclass B (the "California Class") that that should have but did not include Ms. Guinasso; WHEREAS Ms. Guinasso is represented by the Class Counsel; WHEREAS the parties agree that Ms. Guinasso should be included within Subclass B in the Stipulation of Settlement and receive the benefits of the Settlement, and she does not wish to opt-out of the Class nor object to the Settlement;
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS Ms. Mariah Martin was and is employed by EMD Serono as a KAM; WHEREAS Ms. Martin was first employed by EMD Serono as a KAM resident in California on December 5, 2007 and between then and the end of the Class period on March 10, 2008; WHEREAS Ms. Martin was first employed by EMD Serono as a KAM resident in California after the settlement of this case on October 10, 2007 and did not originally receive notice of the Action; WHEREAS Ms. Martin contacted in-house counsel for EMD Serono and inquired concerning whether she was in the Settlement Class and could be eligible for a settlement payment; WHEREAS as a matter of business judgment, and without admitting any liability, EMD Serono would like to include Ms. Martin in the Settlement, and the parties agree that she should be included in the Settlement; WHEREAS, with the consent of Class Counsel, Ms. Martin has had the facts stated above explained to her by the in-house counsel for EMD Serono orally and in writing; has received the Notice Of Class Action And Collective Action Settlement And Release ("Notice of Settlement"); has had the opportunity to consult with Class Counsel; and has informed counsel for the parties in writing (attached hereto as Exhibit A) that she wishes to receive the benefits of the Settlement and does not wish to opt-out of the Class nor object to the Settlement; WHEREAS the parties agree that Ms. Martin should be included within Subclass B in the Stipulation of Settlement and receive the benefits of the Settlement; WHEREAS Mr. William O'Kane was and is employed by EMD Serono as a KAM; WHEREAS Mr. O'Kane was first employed by EMD Serono as a KAM resident in California on January 21, 2008 and from then until the March 10, 2008 end of the Class period; WHEREAS Mr. O'Kane was employed by EMD Serono as a KAM resident in California after the settlement of this case on October 10, 2007 and after the submission of Plaintiff's Notice of Motion and Motion for Order: (1) Provisionally Certifying Settlement Class; (2) Preliminarily Approving Class Action Settlement and Plan of Distribution; (3) Directing Distribution of Notice of the Settlement; and (4) Setting a Schedule for the Final Settlement Approval Process on December
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19, 2007, and he did not originally receive notice of this Action; WHEREAS during the course of investigating the circumstances of Ms. Guinasso and Ms. Martin, EMD Serono discovered that Mr. O'Kane was employed by EMD Serono after the Settlement of this case on October 10, 2007; WHEREAS as a matter of business judgment, and without admitting any liability, EMD Serono would like to include Mr. O'Kane in the Settlement, and the parties agree that he should be included in the Settlement; WHEREAS, with the consent of Class Counsel, Mr. O'Kane has had the facts stated above explained to him by the in-house counsel for EMD Serono orally and in writing; has received the Notice Of Class Action And Collective Action Settlement And Release ("Notice of Settlement"); has had the opportunity to consult with Class Counsel; and has informed counsel for the parties in writing (attached hereto as Exhibit B) that he wishes to receive the benefits of the Settlement and does not wish to opt-out of the Class nor object to the Settlement; WHEREAS the parties agree that Mr. O'Kane should be included within Subclass B in the Stipulation of Settlement and receive the benefits of the Settlement; WHEREAS the parties agree that Ms. Guinasso, Mr. O'Kane and Ms. Martin should each be included within Subclass B in the Stipulation of Settlement and receive the benefits of the Settlement; WHEREAS the parties have agreed that, subject to the approval of this Court, EMD Serono will add to the prior $1,708,622.19 Settlement Payment the sum of $ 31,426.70 and that, pursuant to the formula stated in the Stipulation of Settlement, Ms. Guinasso's share of the new total Settlement Payment of $1,740,048.89 is $28,805.22; Mr. O'Kane's share of the new total Settlement Payment of $1,740,048.89 is $822.93; and Ms. Martin's share of the new total Settlement Payment of $1,740,048.89 is $1,798.55; such that Ms. Guinasso, Mr. O'Kane, and Ms. Martin each receives his or her allocable share of the Settlement as if they originally had been included in the Settlement, and no other Class member's share is reduced; and from which amounts the Settlement Administrator shall pay to the appropriate governmental entities the employees' and employer's share of any payroll withholding payments as required by law pursuant to paragraph 2 of the Stipulation of Settlement; WHEREAS EMD Serono shall bear any additional settlement administration costs, if any, of
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the recalculations stated above; NOW, THEREFORE, IT IS HEREBY STIPULATED, subject to the approval of the Court, that: 1. Ms. Gina Guinasso, Mr. William O'Kane, and Ms. Mariah Martin each shall be included within Subclass B in the Stipulation of Settlement and receive the benefits of the Settlement; and 2. EMD Serono shall add to the $1,708,622.19 Settlement Payment the sum of $31,426.70, for a new total Settlement Payment of $1,740,048.89; and, pursuant to the formula stated in the Stipulation of Settlement, Ms. Guinasso's share of the new total Settlement Payment of $1,740,048.89 is $28,805.22, Mr. O'Kane's share of the new total Settlement Payment of $1,740,048.89 is $822.93; and Ms. Martin's share of the new total Settlement Payment of $1,740,048.89 is $ 1,798.55; from which amounts the Settlement Administrator shall pay to the appropriate governmental entities the employees' and employer's share of any payroll withholding payments as required by law pursuant to paragraph 2 of the Stipulation of Settlement; and 3. EMD Serono shall bear any additional settlement administration costs, if any, of the recalculation stated above; and 4. Ms. Gina Guinasso, Mr. William O'Kane, and Ms. Mariah Martin each shall be made a member of Subclass B subject to all the terms and conditions of the Stipulation of Settlement and the Final Approval Order.

DATED: February 25, 2009

NIXON PEABODY LLP

By:

/s/ ___________________________ Paul J. Hall Attorneys for Defendant EMD SERONO, INC.

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DATED: February 25, 2009

RUDY AXELROD & ZIEFF, LLP

By:

/s/ ___________________________ John T. Mullan Attorneys for Plaintiff PAUL ENGEL and the Class he represents

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: March 5, 2009

ORDER Based upon the foregoing Stipulation of the Parties, and good cause appearing therefor, IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT: 1. Ms. Gina Guinasso, Mr. William O'Kane, and Ms. Mariah Martin each shall be, and they hereby are, included within Subclass B in the Stipulation of Settlement and shall receive the benefits of the Settlement; and 2. EMD Serono shall add to the $1,708,622.19 Settlement Payment the sum of $31,426.70, for a new total Settlement Payment of $1,740,048.89; and, pursuant to the formula stated in the Stipulation of Settlement, Ms. Guinasso's share of the new total Settlement Payment of $1,740,048.89 is $28,805.22, Mr. O'Kane's share of the new total Settlement Payment of $1,740,048.89 is $822.93; and Ms. Martin's share of the new total Settlement Payment of $1,740,048.89 is $ 1,798.55; from which amounts the Settlement Administrator shall make any required payroll withholding payments as required by law pursuant to paragraph 2 of the Stipulation of Settlement; and 3. EMD Serono shall bear any additional settlement administration costs, if any, of the recalculation stated above; and 4. Ms. Gina Guinasso, Mr. William O'Kane, and Ms. Mariah Martin each shall be, and they hereby are, made a member of Subclass B subject to all the terms and conditions of the Stipulation of Settlement and the Final Approval Order.

Honorable Claudia Wilken United States District Judge

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