Settlement Agreement in Labor Dispute: Terms and Conditions, Exercises of Business

Download Settlement Agreement in Labor Dispute: Terms and Conditions and more Exercises Business in PDF only on Docsity! Page 1 of 13 4159-2084-4318.2 STIPULATION OF SETTLEMENT AND RELEASE This Stipulation of Settlement and Release (“Settlement Agreement” or “Settlement”) is reached by and between Plaintiff Brittani Simpkins (“Plaintiff”), individually and on behalf of all members of the Settlement Class (defined below), and Defendant GPS Consumer Direct, Inc. (“Defendant”) (Plaintiff and Defendant are collectively referred to herein as the “Parties”). Plaintiff and the Settlement Class are represented by Graham S.P. Hollis and Vilmarie Cordero of GrahamHollis APC, who are designated as “Class Counsel”. Defendant is represented by Jessica Perry, Allison Riechert Giese, and Alexandra Guerra of Orrick, Herrington & Sutcliffe LLP (“Defendant’s Counsel”). Plaintiff filed a Class and Representative Action Complaint on October 22, 2018 in San Francisco County Superior Court, entitled Brittani Simpkins v. GPS Consumer Direct, et al, Case No. CGC-18-57081 (the “Lawsuit”). The Lawsuit alleges that Defendant: (i) failed to pay all overtime wages owed; (ii) failed to pay minimum and regular wages; (iii) failed to provide meal periods; (iv) failed to authorize and permit rest periods; (v) failed to provide required sick leave; (vi) failed to provide accurate wage statements and written notice of sick leave; (vii) failed to pay all final wages owed upon separation from employment; (viii) engaged in unlawful business practices pursuant to California Business and Professions Code sections 17200, et seq.; and (ix) is liable for civil penalties under the Private Attorneys General Act (“PAGA”), Labor Code section 2698, et seq. After the exchange of documents and information, including class member contact information, the Parties participated in a mediation with neutral third party, Tripper Ortman of Ortman Mediation (the “Mediator”), which ultimately led to the resolution of the Lawsuit. 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 class treatment for any purpose other than this Settlement. Defendant contends, among other things, that it has complied at all times with the California Labor Code, the applicable Wage Orders, and the California Business and Professions Code. In addition, it is Defendant’s position that, if this case were to be litigated, class certification would be inappropriate. This Settlement is entered into solely for the purpose of compromising highly disputed claims. Nothing in this Settlement is intended or will be construed as an admission of liability or wrongdoing by Defendant. Given the uncertainty of litigation, the Parties wish to settle Plaintiff’s claims, both individually and on behalf of the Settlement Class. Accordingly, the Parties agree as follows: 1. Settlement Class. For purposes of this Settlement Agreement only, the Parties stipulate to certification of the following “Settlement Class or “Settlement Class Members”: All current and former non-exempt employees who worked for GPS Consumer Direct, Inc. in the State of California as Customer Service Representatives or similar job title at any time from October 22, 2014 through the date of Preliminary Approval (the “Class Period”). DocuSign Envelope ID: 539BAAE6-E0FA-4616-A909-5DB3CC742014 Page 2 of 13 4159-2084-4318.2 The Parties agree that certification for the purpose of settlement is not an admission that class certification is proper under Section 382 of the California Code of Civil Procedure. 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 inappropriate in a non-settlement context. 2. Release. Plaintiff and every member of the Settlement Class (except those who opt out of the Settlement), will release and discharge Defendant, its past or present officers, directors, shareholders, employees, agents, principals, heirs, representatives, accountants, auditors, consultants, insurers and reinsurers, and its respective successors and predecessors in interest, subsidiaries, affiliates, parents and attorneys (“Released Parties”) from any and all claims, demands, rights, liabilities and causes of action that were or could have been pleaded under local, state or federal law arising out of, relating to, or based on any facts, transactions, events, policies, occurrences, acts, disclosures, statements, omissions, or failures to act pleaded in the operative complaint against GPS Consumer Direct, Inc. through the date of preliminary approval, including but not limited to claims related to unpaid wages and overtime compensation, meal and rest breaks, sick leave, untimely final paychecks, inaccurate itemized wage statements, business expenses, unfair business practices, and for penalties and unpaid wages under PAGA (“Class Released Claims”). The aforementioned Release shall be printed on the back of the settlement checks issued to participating members of the Settlement Class. 3. Maximum Settlement Amount. As consideration, Defendant agrees to pay a non- reversionary maximum amount (“Maximum Settlement Amount”) of one million, six hundred thousand dollars and no cents ($1,600,000.00) in full and complete settlement of this matter, as follows: A. The Parties agree to engage CPT Group as the “Settlement Administrator” to administer the Settlement. B. The Maximum Settlement Amount shall be deposited with the Settlement Administrator within twenty-one (21) calendar days after the Payment Obligation and Class Release Date. The “Payment Obligation and Class Release Date” is defined as the date the Notice of Entry of Order granting final approval is served, or, solely in the event that there are any objections to the settlement (the filing of an objection being a prerequisite to the filing of an appeal), the later of (a) the last date on which any appeal might be filed, or (b) the date of successful resolution of any appeal(s) – including expiration of any time to seek reconsideration or further review. C. The Maximum Settlement Amount includes: (1) All payments to the Settlement Class; (2) All costs of the Settlement Administrator associated with the administration of the Settlement, which are anticipated to be no greater than $29,000; DocuSign Envelope ID: 539BAAE6-E0FA-4616-A909-5DB3CC742014 Page 5 of 13 4159-2084-4318.2 F. In light of the claims asserted and their relative strength in the Litigation, the Other Claims Amount distributed to each participating Settlement Class Member shall be allocated as (60%) penalties and interest and (40%) wages. G. The Settlement Administrator will issue each participating Settlement Class Member an IRS Form 1099 (for amounts paid as penalties and interest) and an IRS Form W-2 (for amounts paid as wages). H. The Individual Settlement Payments paid to Settlement Class Members and the Named Plaintiff Enhancement Payment shall be deemed not to be “pensionable” earnings and shall not have any effect on the eligibility for, or calculation of, any of the employee benefits (i.e. vacation, retirement plans, etc.) of Settlement Class Members or Plaintiff. The Parties agree that any Individual Settlement Payments or Named Plaintiff Enhancement Payment paid to Settlement Class Members or Plaintiff under the terms of this Settlement Agreement do not represent any modification of Settlement Class Members’ or Plaintiff’s previously credited hours of service or other eligibility criteria under any employee pension benefit plan, employee welfare benefit plan, or any other plan or program. Further, any Individual Settlement Payments or Named Plaintiff Enhancement Payment paid hereunder shall not be considered “compensation” in any year for purposes of determining eligibility for, or benefit accrual within, an employee pension benefit plan, employee welfare benefit plan, or any other plan or program sponsored by Defendant. 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. I. It shall be the responsibility of the Settlement Administrator to timely and properly withhold from Individual Settlement Payments payable to Settlement Class Members all applicable payroll and employment taxes, but not Corporate Payroll 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 Settlement Class Member’s share of all applicable payroll and employment taxes (excluding Corporate Payroll Taxes) withheld and deposited with the applicable governmental authorities in accordance with this Settlement Agreement shall be a part of, and paid out of, the Individual Settlement Payment to each Settlement Class Member. Each Settlement Class Member will be responsible for paying all applicable state, local, and federal income taxes on all amounts the Settlement Class Member receives pursuant to this Settlement Agreement (excluding Corporate Payroll Taxes). J. The Individual Settlement Payments shall be paid to Settlement Class Members specifically in exchange for the release of the Released Parties from the Class Released Claims and the covenant not to sue concerning the Class Released Claims. 5. Attorneys’ Fees and Costs. Plaintiff shall be permitted to make a request for Class Counsel’s attorneys’ fees amounting to one-third of the Maximum Settlement Amount, which is currently estimated to be $533,333.33, plus actual reasonable costs and expenses, which are not to exceed $18,000. These amounts will cover any and all work performed and any and all costs incurred in connection with this litigation, including without limitation all work performed and all DocuSign Envelope ID: 539BAAE6-E0FA-4616-A909-5DB3CC742014 Page 6 of 13 4159-2084-4318.2 costs incurred to date, and all work to be performed and costs to be incurred in connection with obtaining the Court’s approval of this Settlement Agreement, including any objections raised and any appeals necessitated by those objections. Class Counsel will be issued an IRS Form 1099 by the Settlement Administrator at the time the Settlement Administrator distributes the fee award approved by the Court. 6. Named Plaintiff Enhancement Payment. Plaintiff may make a request for a Named Plaintiff Enhancement Payment of $7,500 to Plaintiff for her time and risks in prosecuting this litigation and service to the Settlement Class. This award will be in addition to Plaintiff’s Individual Settlement Payment as a Settlement Class Member and shall be reported on IRS Forms 1099 by the Settlement Administrator. 7. Settlement Administrator. The parties agree to the appointment of CPT Group as Settlement Administrator, and to request approval to pay an amount not anticipated to exceed $29,000 for its services from the Maximum Settlement Amount. The Settlement Administrator shall be responsible for sending notices to the Settlement Class Members, for calculating Individual Settlement Payments, and for preparing all checks and mailings. The Settlement Administrator shall be authorized to pay itself from the Maximum Settlement Amount only after Individual Settlement Payments have been mailed to all Settlement Class Members. 8. Preliminary Approval. Upon execution of this Settlement Agreement, Plaintiff shall apply to the Court for the entry of an Order: A. Conditionally certifying the Settlement Class for purposes of this Settlement Agreement; B. Appointing Graham S.P. Hollis and Vilmarie Cordero of GrahamHollis APC as Class Counsel; C. Appointing Plaintiff Simpkins as Class Representative for the Settlement Class; D. Approving CPT Group as Settlement Administrator; E. Preliminarily approving this Settlement Agreement and its terms as fair, reasonable, and adequate; F. Approving the form and content of the Class Notice and directing the mailing of same; and G. Scheduling a Final Approval hearing. 9. Notice to Settlement Class. Following preliminary approval, the Settlement Class shall be notified as follows: A. Within thirty (30) calendar days after entry of an order preliminarily approving this Settlement, Defendant will provide the Settlement Administrator with the names, last known addresses, last known telephone numbers, social security numbers, and the number of Non-Shift Differential Pay Periods, Shift Differential Pay Periods and PAGA Pay Periods during the relevant time periods, as reflected by DocuSign Envelope ID: 539BAAE6-E0FA-4616-A909-5DB3CC742014 Page 7 of 13 4159-2084-4318.2 Defendant’s corporate and business records, exclusive of leaves of absence (in electronic format). Approximations and averages used to cover periods where data is missing or otherwise not available. B. Within fourteen (14) calendar days from receipt of this information, the Settlement Administrator shall: (i) run the names of all Settlement Class Members through the National Change of Address (“NCOA”) database to determine any updated addresses and also perform an Accurint (or substantially similar) in-depth skip trace to obtain the best possible address for Class Members prior to the mailing; (ii) update the addresses of any Settlement Class Member for whom an updated address was found through the NCOA search or the Accruing skip trace; and (iii) mail a “Notice Packet” to each Settlement Class Member at his or her last known address or at the updated address found through the NCOA search and/or skip trace, and retain proof of mailing. Each Notice Packet mailed to Settlement Class Members shall contain a Notice of Settlement Award, which shall disclose the amount of the Settlement Class Member’s estimated Individual Settlement Payment, the number of Pay Periods and Shift Differential Pay Periods worked during the relevant Class Period, and the number of Pay Periods worked during the PAGA Period. At least ten (10) 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. C. Any Notice Packets returned to the Settlement Administrator as undelivered on or before the Response Deadline (defined below) shall be re-mailed to the forwarding address affixed thereto. If no forwarding address is provided, the Settlement Administrator shall make reasonable efforts, including utilizing a Experian (or substantially similar) in-depth skip trace or mass search on LexisNexis databases based on set criteria to obtain an updated mailing address and if an updated mailing address is identified, the Settlement Administrator shall resend the Notice Packet to the Settlement Class Member promptly, within five (5) business days of receiving the returned Notice Packet. Settlement Class Members to whom Notice Packets are re-sent after having been returned as undeliverable to the Settlement Administrator shall have until the Response Deadline to mail a Request for Exclusion, objection, or dispute. D. Settlement Award Disputes. The Parties will handle any disputes about the Individual Settlement Payments as follows: i. To the extent a Settlement Class Member disputes the Pay Periods, Shift Differential Pay Periods and/or PAGA Pay Periods shown in his or her Notice, he or she may produce evidence to the Settlement Administrator establishing the dates he or she contends to have worked during the Class Period prior to the Response Deadline. 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, if necessary. The Settlement Administrator shall resolve any disputes and notify counsel for the Parties of its decision. DocuSign Envelope ID: 539BAAE6-E0FA-4616-A909-5DB3CC742014 Page 10 of 13 4159-2084-4318.2 burden and expense of further litigation. Pursuant to California Evidence Code section 1152, this Settlement Agreement is inadmissible in any proceeding, except a proceeding to approve, interpret, or enforce this Settlement Agreement. If Final Approval does not occur, the Parties agree that this Settlement Agreement is void, but remains protected by California Evidence Code section 1152. 13. Employment Status. Plaintiff agrees never to apply for or accept employment with Defendant or any of The Gap, Inc.’s brands, including but not limited to Gap, Banana Republic, Old Navy, Athleta, and Intermix. 14. Parties’ Authority. The signatories hereto represent that they are fully authorized to enter into this Settlement Agreement and bind the Parties to the terms and conditions hereof. 15. Mutual Full Cooperation. The Parties and their counsel agree to fully cooperate with each other to accomplish the terms of this Settlement Agreement, 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 Settlement Agreement. The Parties to this Settlement Agreement shall use their best efforts, including all efforts contemplated by this Settlement Agreement and any other efforts that may become necessary by order of the Court, or otherwise, to effectuate this Settlement Agreement 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 Settlement Agreement, the Parties shall seek first the assistance of the Mediator and then the Court to resolve such disagreement. 16. Privacy of Documents and Information. Plaintiff and Class Counsel agree that they will destroy all confidential documents and information provided to them by Defendant within thirty (30) days of the Payment Obligation and Class Release Date, except for documents that must be saved for malpractice purposes or ethical rules governing attorney conduct in California and the United States. Plaintiff and Class Counsel further agree that none of the documents and information provided to them by Defendant shall be used for any purpose other than prosecution of this Lawsuit or the defense or prosecution of a malpractice action or defense of any state bar complaint. 17. No Prior Assignments. 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 Settlement Agreement. 18. Construction. The Parties hereto agree that the terms and conditions of this Settlement Agreement are the result of lengthy, intensive arms’ length negotiations between the Parties and that this Settlement Agreement shall not be construed in favor of or against any of the Parties by reason of the extent to which any Party or their or its counsel participated in the drafting of this Settlement Agreement. 19. Jurisdiction of the Court. 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 Settlement Agreement, or relating to the Lawsuit or the Class Released Claims, shall be subject to the exclusive jurisdiction of the Court, and Plaintiff, DocuSign Envelope ID: 539BAAE6-E0FA-4616-A909-5DB3CC742014 Page 11 of 13 4159-2084-4318.2 Settlement 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 Settlement Agreement 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 Settlement Agreement and all orders and judgments entered in connection therewith. 20. Final Judgment. The Parties shall provide the Settlement Administrator with a copy of the Final Judgment once it is entered by the Court, and the Settlement Administrator shall post the Final Judgment to its website within 3 business days of receipt. 21. California Law Governs. All terms of this Settlement Agreement and the exhibit hereto shall be governed and interpreted according to the laws of the State of California, regardless of its conflict of laws. 21. Invalidity of Any Provision. The Parties request that before declaring any provision of this Settlement Agreement invalid, the Court shall first attempt to construe all provisions valid to the fullest extent possible consistent with applicable precedents 22. Headings. 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 Settlement Agreement or any provision hereof. 23. Waiver and Amendment. The Parties may not waive, amend, or modify any provision of this Settlement Agreement except by a written agreement signed by all of the Parties, and subject to any necessary Court approval. A waiver or amendment of any provision of this Settlement Agreement will not constitute a waiver of any other provision. 24. Notices. All notices, demands, and other communications to be provided concerning this Settlement Agreement shall be in writing and delivered by receipted delivery and by e-mail at the addresses set forth below, or such other addresses as either Party may designate in writing from time to time: if to Defendant: Allison Riechert Giese Orrick, Herrington & Sutcliffe LLP 1000 Marsh Road Menlo Park, California 94025-1015 agiese@orrick.com if to Plaintiff: Villmarie Cordero GrahamHollis APC 3555 Fifth Avenue Suite 200 San Diego, CA 92103 vcordero@grahamhollis.com 25. Entire Agreement. This Settlement Agreement contains the entire agreement between the Parties with respect to the transactions contemplated hereby, and supersedes all negotiations, DocuSign Envelope ID: 539BAAE6-E0FA-4616-A909-5DB3CC742014 Page 12 of 13 4159-2084-4318.2 presentations, warranties, commitments, offers, contracts, and writings prior to the date hereof relating to the subject matters hereof. 26. Binding on Assigns. This Settlement Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, trustees, executors, administrators, successors and assigns. 27. Interim Stay of Proceedings. 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. 28. Counterparts. This Settlement Agreement may be executed by one or more Parties on any number of separate counterparts and delivered electronically, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] DocuSign Envelope ID: 539BAAE6-E0FA-4616-A909-5DB3CC742014