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19 Defendants. Dept.: 1
Judge: Hon. James P. Kleinberg
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21 [Complaint Filed: January 27, 2010]
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DECLARATION OF KYLE R. NORDREHAUG IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF
CLASS SETTLEMENT
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E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 same methodology and are based upon each employees workweeks during the Class Period. The
2 Settlement Share for each Claimant will be calculated by (a) dividing the Net Settlement Total by
3 the total number of work weeks in a covered position during the Class Period for all Class Members
4 and (b) multiplying the result by each individual Claimant’s work weeks in a covered position
5 during the Class Period. (Agreement at §III(C)(1).)
6 5. Settlement negotiations took place before David Rotman, one of the preeminent
7 mediators of wage and hour class actions in California. In preparation for the mediation, Defendant
8 provided Class Counsel with all of the necessary data, including time records and payroll
9 information for the members of the Class. Plaintiffs analyzed the data with the assistant of their
10 damages expert, Desmond, Marcello & Amster ("DM&A"), prepared damage estimates, and
11 submitted a mediation brief to Mr. Rotman. The all-day mediation session held on November 9,
12 2010 was contentious and arm's length, and ultimately resulted in a mediator's settlement proposal
13 which the parties accepted. Based on Defendant’s data and their own independent investigation
14 and evaluation, Class Counsel is of the opinion that the settlement with Defendant for the
15 consideration and on the terms set forth in the Agreement is fair, reasonable, and adequate and is in
16 the best interest of the class in light of all known facts and circumstances, including the risk of
17 significant delay, defenses asserted by Defendant, the possibility that little or no monetary relief
18 could be awarded at trial, and numerous potential appellate issues.
19 6. In October 2010, the damage estimates to compensate for the amount due for the
20 unpaid overtime was calculated by Desmond, Marcello & Amster ("DM&A"), Plaintiffs' damage
21 expert, based upon the time record and payroll information obtained from Defendant. For the
22 employees in the Settlement Class whose claims are at issue here, the compensation owed to the
23 members of the class for unpaid overtime equaled $947,328. Once estimates for meal break
24 compensation, wage statement penalties, waiting time penalties and other statutory penalties are
25 included, the total maximum damage estimates was $1.56 million. The settlement of $625,000.00
26 represents at least 65% of the total unpaid overtime, and 40% of the maximum value of all claims
27 and penalties, assuming these amounts could be proven at trial. Clearly the goal of this litigation to
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DECLARATION OF KYLE R. NORDREHAUG IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF
CLASS SETTLEMENT
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E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 obtain payment for the unpaid vacation has been met. The Settlement is fair, reasonable and
2 adequate, and should be preliminarily approved. Therefore, Plaintiffs respectfully requests that this
3 Court grant preliminary approval of the Stipulation for Settlement.
4
5 Procedural History of the Litigation
6 7. On January 27, 2010, plaintiffs Nikki Meierdiercks, Karin Flavetta, and Frank Torres
7 filed a Complaint against 8x8, Inc. in the Superior Court for the County of Santa Clara. The
8 Complaint alleged the following causes of action: Unfair Competition (Bus. & Prof. Code §§
9 17200, et seq.); Failure to Pay Overtime Wages (Labor Code §§ 510, et seq.); Failure to Provide
10 Meal and Rest Periods (Labor Code §§ 226.7 and 512); Failure to Indemnify Business Expenses
11 (Labor Code § 2802); and Failure to Provide Accurate Itemized Statements (Labor Code § 226).
12 The Complaint was filed as a class action. The Complaint alleges that Plaintiffs and other
13 employees were misclassified as “exempt” employees, and as a result, these employees failed to
14 receive overtime compensation, off-duty meal periods and other benefits. Plaintiffs sought to certify
15 a class composed of themselves and similarly situated individuals and to recover from Defendant
16 wages, interest, penalties, and attorneys’ fees and costs.
17 8. On March 2, 2010, Defendant filed an Answer to the Complaint. In the Answer,
18 Defendant denied the allegations set forth in the Complaint and denied that Plaintiffs suffered any
19 damages as a result of its conduct. Defendant contended that Plaintiffs and Defendant’s other
20 similarly situated employees were properly classified as exempt from overtime.
21 9. On April 29, 2010, Plaintiffs filed a First Amended Complaint which, inter alia, (I)
22 revised certain of the allegations while retaining the material allegations of their claims, and (II)
23 added a claim for civil penalties under the Labor Code Private Attorneys General Act (Cal. Labor
24 Code § 2698, et seq.) based upon the same material allegations. On May 21, 2010, Defendant filed
25 an Answer to the First Amended Complaint.
26 10. Defendant answered each of Plaintiffs’ Complaints, denying the material allegations.
27 Specifically, Defendant contended (and continues to contend) that the Action could not properly be
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DECLARATION OF KYLE R. NORDREHAUG IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF
CLASS SETTLEMENT
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E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 maintained as a class action; that members of the class were properly classified as exempt from
2 state overtime requirements; that Defendant did not fail to pay to any members of the class who are
3 former employees any wages allegedly due at the time of their termination; that Defendant provided
4 accurate, itemized wage statements to members of the class; that Defendant provided meal and rest
5 periods to the members of the class; that Defendant did not fail to reimburse employees for business
6 expenses necessarily incurred in the performance of their duties; that Defendant did not violate
7 California Business and Professions Code section 17200 et seq; and that Defendant is not liable for
8 any of the penalties claimed or that could be claimed in the Complaints.
9 11. On June 7, 8 and 9, 2010, the Defendant took the deposition of each of the named
10 Plaintiffs. On September 15, 2010, Plaintiffs deposed Defendant’s corporate designee Daniel
11 Weirich, and on September 16, 2010, Plaintiffs deposed Defendant’s second corporate designee
12 Marc Cook. Plaintiffs also served and Defendant responded to three sets of Special Interrogatories,
13 three sets of Requests for Admissions, three sets of Requests for Production, and three sets of Form
14 Interrogatories. Through the Claims Administrator, Plaintiffs distributed the Belaire Notice to the
15 putative class and thereafter received the contact information for the employees who did not opt
16 out. Plaintiffs conducted interviews of putative class members. Plaintiffs also responded to
17 Defendant’s written discovery.
18 12. On June 25, 2010, the Court conducted a case management conference in the Action.
19 On September 17, 2010, the Court conducted a continued case management conference in the
20 Action, and also held an informal conference to address a discovery dispute that was briefed by
21 both parties.
22 13. Defendant produced the computer system information for each named Plaintiff in
23 April 2010 which showed the dates and time of work performed by the Sales Representatives. and,
24 in anticipation of mediation, Defendant also produced this information for all 166 members of the
25 putative class along with the necessary payroll data for all 166 members of the putative class.
26 14. On November 9, 2010, the parties engaged in mediation before David Rotman, a
27 preeminent mediator of wage and hour class actions. At the mediation, the parties, represented by
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DECLARATION OF KYLE R. NORDREHAUG IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF
CLASS SETTLEMENT
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E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 its respective counsel, recognized the substantial risk of an adverse result in the Action and
2 successfully negotiated a class action settlement of this action. The parties executed a Memorandum
3 of Understanding setting forth the basic terms of the Settlement.
4 15. Class Counsel has conducted a thorough investigation into the facts of the class
5 action. Class Counsel has diligently evaluated the Class Members' claims against Defendant. Prior
6 to the Parties executing a “Memorandum of Understanding,” Class Counsel obtained all necessary
7 information concerning Defendant’s employment policies and practices and Class Member data,
8 including relevant salary and time record information for the employees at issue. Based on the
9 foregoing data and their own independent investigation and evaluation, Class Counsel believes that
10 the settlement with Defendant for the consideration and on the terms set forth in this Agreement is
11 fair, reasonable, and adequate and is in the best interest of the Class in light of all known facts and
12 circumstances, including the risk of significant delay, defenses asserted by Defendant, and
13 numerous potential appellate issues.
14
15 Plan of Allocation
16 16. Subject to the terms and conditions of this Agreement, the Settlement Total that
17 Defendant will pay under this Settlement is a total of Six Hundred Twenty-five Thousand Dollars
18 ($625,000). This amount constitutes Defendant’s entire financial obligation pursuant to this
19 Agreement (provided that if there is insufficient funds in the residual account to pay Defendant’s
20 payroll tax burden, Defendant shall pay the amount of the payroll tax burden which is not covered
21 by the residual account). All of the Settlement Total will be disbursed pursuant to this Agreement,
22 and no funds will revert to Defendant. (Agreement at §III(A).) The “Net Settlement Total” means
23 the net amount of the Settlement Total available for payment of claims to class members after
24 deducting therefrom the expenses charged for claims administration, attorneys’ fees, reimbursement
25 of attorneys’ expenses, the LWDA share of the PAGA payment and the service awards.
26 (Agreement at §I(V).)
27 17. Subject to the terms and conditions of the Agreement, the Claims Administrator will
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DECLARATION OF KYLE R. NORDREHAUG IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF
CLASS SETTLEMENT
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E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 make the following payments out of the Settlement Total as follows: (1) Settlement Shares to the
2 Claimants; (2) the reasonable fees and expenses of the Claims Administrator in an amount not to
3 exceed $15,000; (3) the payment to the California Labor and Workforce Development Agency in
4 the amount of $3,750; (4) an award of not more than $156,250 (25% of the Settlement Total) to
5 Class Counsel for attorneys’ fees; (5) an amount not more than $25,000 to Class Counsel as
6 reimbursement for litigation expenses incurred; and, (6) an award of not more than $5,000 to each
7 Plaintiff as his or her Class Representative Service Payment. (Agreement at §III(B)-(C).) All
8 Unclaimed Settlement Shares or unclaimed funds allocated to Non-Participating Class Members
9 shall be allocated first to payment of the Defendant’s share of payroll taxes on those Wage Portions
10 of the Net Settlement Total, and thereafter, any remaining funds in the Net Settlement Total shall be
11 distributed to Claimants on a pro rata basis relative to their Settlement Shares. (Agreement at
12 §III(C)(5).) If there are not sufficient funds in the residual account to pay Defendant’s payroll tax
13 burden, Defendant shall pay the amount of the payroll tax burden which is not covered by the
14 residual account. (Agreement at §III(A).)
15 18. Under the Settlement, the Claims Administrator will pay a Settlement Share from the
16 Net Settlement Total to each Claimant who timely and properly submits a Claim Form. The
17 Settlement Share for each Claimant will be calculated by (a) dividing the Net Settlement Total by
18 the total number of work weeks in a covered position during the Class Period for all Class Members
19 and (b) multiplying the result by each individual Claimant’s work weeks in a covered position
20 during the Class Period. (Agreement at §III(C)(1).) One-half (50 %) of each Settlement Share shall
21 be allocated to wages, and one-half (50%) of each Settlement Share shall be allocated to interest
22 and penalties allegedly due to employees.
23 19. Non-Participating Class Members will receive no Settlement Share, and their
24 election not to participate will reduce neither the Settlement Total nor the Net Settlement Total.
25 Their respective Settlement Shares will be retained in the Net Settlement Total for distribution.
26 (Agreement at §III(C)(3).) If a Participating Class Member does not submit a valid and timely
27 Claim Form and therefore does not qualify as a Claimant, the Settlement Share that would have
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DECLARATION OF KYLE R. NORDREHAUG IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF
CLASS SETTLEMENT
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E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 been paid to him or her if he or she had qualified as a Claimant (the “Unclaimed Settlement Share”)
2 will be retained in the Net Settlement Total for distribution (Agreement at §III(C)(4).) All
3 Unclaimed Settlement Shares or unclaimed funds allocated to Non-Participating Class Members
4 shall be allocated first to payment of the Defendant’s share of payroll taxes on those Wage Portions
5 of the Net Settlement Total, and thereafter, any remaining funds in the Net Settlement Total shall be
6 distributed to Claimants on a pro rata basis relative to their Settlement Shares. (Agreement at
7 §III(C)(5).)
8
9 Risks of Continued Litigation
10 20. Here, a number of defenses asserted by Defendant presented threats to the claims of
11 Plaintiffs and the other Class Members. Defendant likely would assert that Defendant’s
12 employment practices complied with all applicable Labor laws. For example, Defendant contended
13 that Class Members were barred from recovery by the "administrative exemption" because they
14 perform work consisting of representing the employer with the public, negotiating on behalf of the
15 company, advising and consulting with clients, and engage in sales promotion. See, e.g., Hogan v.
16 Allstate Ins. Co., 361 F.3d 621, 627 (11th Cir. Fla. 2004) (Court determined that for insurance
17 salespersons, promoting sales and advising customers regarding sales were administrative rather
18 than production tasks). Defendant also contended that many of the employees were subject to the
19 commissioned salesperson exemption. Defendant argued that, irrespective of the exemption
20 arguments, that the Defendant’s potential overtime liability was minimal because the employees
21 only worked during regular business hours. As to the expense reimbursement claim, Defendant
22 contended that none of the claimed expenses, which entirely consisted of home internet connection
23 costs, were reasonably incurred since employees only worked during regular business hours or were
24 actually incurred for work. As to the meal and rest break claims, Defendant maintained written
25 policies permitting and encouraging employees to take meal and rest periods, and therefore could
26 argue that Defendant authorized, permitted and provided meal periods and rest breaks to its Sales
27 Representatives.
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DECLARATION OF KYLE R. NORDREHAUG IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF
CLASS SETTLEMENT
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E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 21. Defendant could also contest class certification by arguing that the question of
2 whether a particular employee had unpaid overtime requires an individual case by case analysis,
3 and the proof of injury would require individualized evidence which would preclude class
4 certification. See e.g. Ali v. U.S.A. Cab, Ltd., 176 Cal. App. 4th 1333, 1350 (2009). There was a
5 significant risk that, if the Actions were not settled, Plaintiffs would be unable to obtain class
6 certification and thereby not recover on behalf of any employees other than themselves. In Dunbar
7 v. Albertson's, Inc., 141 Cal. App. 4th 1422, 1431-32 (2006), the California Court of Appeal
8 affirmed an order denying class certification to a class of employees who claimed that they were
9 denied overtime pay because whether the executive exemption applied would have had to have been
10 individually determined for each class member which meant that common issues did not
11 predominate. Similarly, here Defendant would have certainly argued in opposing class certification
12 that individual issues predominated because the applicability of the administrative exemption would
13 have to be separately determined for each Class Member based on their individual experience.
14 While other cases have approved class certification in overtime wage claims, class certification in
15 this action would have been hotly disputed and was by no means a foregone conclusion.
16 Accordingly, class-wide liability was far from certain.
17 22. The stage of the proceedings at which this settlement was reached also militates in
18 favor of preliminary approval and ultimately, final approval of the settlement. Class Counsel has
19 conducted a thorough investigation into the facts of the class action. Class Counsel began
20 investigating the Class Members’ claims before this action was filed. Class Counsel conducted
21 significant discovery, including document requests including three (3) sets of Requests for
22 Production, three (3) sets of Requests for Admissions, three (3) sets of Special Interrogatories, and
23 three (3) sets of Form Interrogatories. Class Counsel conducted two (2) depositions of the
24 corporate designated witnesses, and all of the Plaintiffs were deposed. Class Counsel obtained
25 production of all relevant business and payroll records produced through both formal and informal
26 discovery. Class Counsel engaged in an extensive review and analysis of the relevant documents
27 and data with the assistance of experts. Accordingly, the agreement to settle did not occur until
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DECLARATION OF KYLE R. NORDREHAUG IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF
CLASS SETTLEMENT
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E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 Class Counsel possessed sufficient information to make an informed judgment regarding the
2 likelihood of success on the merits and the results that could be obtained through further litigation.
3 23. Based on the foregoing data and their own independent investigation and evaluation,
4 Class Counsel is of the opinion that the settlement with Defendant for the consideration and on the
5 terms set forth in the Agreement is fair, reasonable, and adequate and is in the best interest of the
6 class in light of all known facts and circumstances, including the risk of significant delay, defenses
7 asserted by Defendant, and numerous potential appellate issues. There can be no doubt that Class
8 Counsel possessed sufficient information to make an informed judgment regarding the likelihood of
9 success on the merits and the results that could be obtained through further litigation.
10 24. There is no need for continued litigation simply to reaffirm what is already known
11 by the negotiating parties. The extensive due diligence performed by Class Counsel has not created
12 any doubt concerning the accuracy of the information supplied by Defendant. Given the
13 complexities of this case, potential offsets, along with the uncertainties of proof and appeal, the
14 proposed settlement in Plaintiffs’ and Class Counsel’s view is well within the range of possible
15 approval and has no obvious deficiencies.
16
17 Class Certification
18 25. The proposed Settlement Class meet all of the requirements for class certification
19 under California Code of Civil Procedure § 382 as demonstrated below, and therefore, the Court
20 may appropriately approve the Class as defined in the Agreement. (Agreement at §III(E).) This
21 Court should conditionally certify a settlement class for settlement purposes only that consists of
22 “all persons who worked in California for 8x8, Inc. for one or more weeks between January 27,
23 2006 and June 30, 2010 as Sales Representatives, Account Managers and/or Account Executives
24 and who were classified as “exempt” from overtime.” (Agreement at §I(F).)
25 a. Numerosity - Here, the Settlement Class is composed of 166 current and
26 former employees, which is sufficiently numerous.
27 b. Commonality - Here, common questions of law and fact, as alleged by the
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DECLARATION OF KYLE R. NORDREHAUG IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF
CLASS SETTLEMENT
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E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 Plaintiffs, are present, specifically the question of whether the sales employees employed by
2 Defendant were "exempt" from overtime under California law. Plaintiffs contend that Defendant
3 had engaged in a uniform course of conduct with respect to the Settlement Class and the only
4 question is whether Defendant's conduct supports a meritorious claim for exemption
5 misclassification. Such suits challenging the legality of a standardized course of conduct are
6 generally appropriate for resolution by means of a class action.
7 c. Typicality - The Plaintiffs, like every other member of the Class, were
8 employed by Defendant and classified as "exempt" by Defendant. The Plaintiffs performed the
9 same type of sales and consulting work as the other members of the Class. The Plaintiffs, like every
10 other member of the Class, claim unpaid overtime wages for work performed in the same job
11 classification. Thus, the claims of both the Plaintiffs and the Members of the Class arise from the
12 same course of conduct by the Defendant, involve the same work performed, and are based on the
13 same legal theories.
14 d. Adequacy - Plaintiffs are well aware of their duties as the representatives of
15 the class and actively participated in the prosecution of this case to date. They effectively
16 communicated with counsel, providing documents to counsel and participated extensively in
17 discovery, investigation and negotiations in the Action. Plaintiff also retained competent counsel
18 who have extensive experience in employment class actions. (See below).
19 e. Predominance - Here, common questions of law and fact, as alleged by the
20 Plaintiffs, are present, specifically the question of whether the sales employees employed by
21 Defendant were “exempt” from overtime under California law. Plaintiffs contend that Defendant
22 had engaged in a uniform course of conduct with respect to the Settlement Class and the only
23 question is whether Defendant’s conduct supports a meritorious claim for exemption
24 misclassification. Such suits challenging the legality of a standardized course of conduct are
25 generally appropriate for resolution by means of a class action.
26 26. Class Counsel is experienced in prosecuting class action lawsuits and can
27 competently represent the Class. For example, other lawyers at my firm and I have extensive class
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DECLARATION OF KYLE R. NORDREHAUG IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF
CLASS SETTLEMENT
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E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 litigation experience. We have handled a number of class actions and complex commercial cases
2 and have acted both as counsel and as lead and co-lead counsel in a variety of these matters. We
3 have successfully prosecuted and obtained significant recoveries in numerous class action lawsuits
4 and other lawsuits involving complex issues of law and fact, including many wage and hour class
5 actions. Class Counsel has been involved as class counsel in over two hundred (200) class action
6 matters. A variety of Courts in California have approved my firm as adequate class counsel. A true
7 and correct copy of the resume of my firm is attached hereto as Exhibit 2.
8 I declare under penalty of perjury under the laws of the State of California that the foregoing
9 is true and correct. Executed this 7th day of April, 2011, at La Jolla, California.
10
11 By: /s/ Kyle R. Nordrehaug
12 Kyle R. Nordrehaug
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DECLARATION OF KYLE R. NORDREHAUG IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF
CLASS SETTLEMENT
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E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
EXHIBIT #1
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E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
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E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 EXHIBIT A
2
3 [NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION]
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-1-
CLASS ACTION SETTLEMENT AGREEMENT
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
10
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14 )
NIKKI MEIERDIERCKS, an individual; ) No. 110cv162413
15 KARIN FLAVETTA, an individual; )
FRANK TORRES, an individual; on )
16 behalf of themselves, and on behalf of all ) NOTICE OF CLASS ACTION
persons similarly situated, ) SETTLEMENT AND FINAL
17 ) APPROVAL HEARING
Plaintiffs, )
18 )
vs. ) Dept.: 1
19 ) Judge: Hon. James Kleinberg
8X8, INC.; and Does 1 to 10, )
20 )
)
21 Defendants.
22 NOTICE TO CURRENT AND FORMER SALES REPRESENTATIVES,
23 ACCOUNT MANAGERS AND ACCOUNT EXECUTIVES WHO WORKED FOR 8X8,
24 INC. IN CALIFORNIA:
25 PLEASE READ THIS NOTICE CAREFULLY. IT RELATES TO A PROPOSED
26 SETTLEMENT OF CLASS ACTION LITIGATION. IF YOU ARE OR WERE
27 EMPLOYED BY 8X8 IN CALIFORNIA AS A SALES REPRESENTATIVE, ACCOUNT
28 MANAGER AND/OR ACCOUNT EXECUTIVE FOR ONE OR MORE WEEKS
-1-
NOTICE OF CLASS ACTION SETTLEMENT AND FINAL FAIRNESS HEARING
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 BETWEEN JANUARY 27, 2006 THROUGH JUNE 30, 2010 AND WERE CLASSIFIED
5 PROPOSED SETTLEMENT.
6 Pursuant to the Order of the Superior Court of the State of California for Santa Clara
8 proposed class settlement has been reached between the parties in the above-captioned
9 action pending in the Superior Court of the State of California for Santa Clara County, and
10 preliminarily approved by the Court, for certain current and former California employees of
11 8X8, Inc. (referred to as “8X8”) as described in Section I below. You have received this
12 notice because 8X8’s records indicate that you are one of the individuals who fall within
15 The Settlement Class consists of all persons who worked in California for 8x8, Inc.
16 for one or more weeks between January 27, 2006 and June 30, 2010 as Sales
17 Representatives, Account Managers and/or Account Executives and who were classified as
18 “exempt” from overtime.
19 II. WHAT IS THIS CASE ABOUT?
21 Meierdiercks, Karin Flavetta, and Frank Torres (“Plaintiffs”). Nikki Meierdiercks, Karin
22 Flavetta, and Frank Torres are referred to as “Class Representatives” or “Plaintiffs.” The
24 Account Managers and Account Executives as “exempt” from overtime compensation and
25 failed to pay these employees all wages due them by 8X8. On behalf of themselves and the
26 other Settlement Class Members, the Plaintiffs sought payment for alleged unpaid overtime,
27 missed meal and rest period payments, failure to pay wages due at time of termination,
28
-2-
NOTICE OF CLASS ACTION SETTLEMENT AND FINAL FAIRNESS HEARING
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 failure to provide business expense reimbursement, failure to furnish timely and accurate
3 8X8 denies the claims of the Class Representative and contends, among other
4 things, that these employees were properly classified as exempt under California law, and
5 that Plaintiffs and the class they seeks to represent were paid all wages due and were
7 Since this action was filed, there has been ongoing investigation, significant
10 before a neutral and widely respected mediator. As a result of this mediation and arm’s-
12 The Parties have entered into a Class Action Settlement Agreement (“Settlement
13 Agreement”), which was preliminarily approved by the Court. The Class Representatives
14 and Settlement Class Counsel support this settlement. Among the reasons for their support
15 are the complete defenses to liability potentially available to 8X8, the inherent risk of trial
17 If you are a member of the Class as defined in Section I above, you may participate
18 in the settlement. This settlement includes (a) payment to the members of the Settlement
19 Class; (b) entry of a judgment and final order approving the settlement; and (c) discharge
20 and complete release of all Parties and their respective counsel from liability for any and all
21 of the Released Claims. This Judgment and Final Order shall have a res judicata effect and
22 bar the Plaintiffs and each Settlement Class Member who has not been excluded from the
23 Settlement Class from bringing any action asserting any claims released in the Class Action
27 Norman B. Blumenthal
Kyle R. Nordrehaug
28 Aparajit Bhowmik
Blumenthal, Nordrehaug & Bhowmik
-3-
NOTICE OF CLASS ACTION SETTLEMENT AND FINAL FAIRNESS HEARING
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
-4-
NOTICE OF CLASS ACTION SETTLEMENT AND FINAL FAIRNESS HEARING
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 portion of the amount paid to settle alleged claims for Private Attorney General Act
2 (“PAGA”) penalties, and any other Settlement Amounts to be paid according to the
3 Settlement Agreement. All of these payments are subject to the final approval of the Court.
5 All costs of administering the Settlement (“Claims Administration Costs”) shall also
6 be paid from the Qualified Settlement Fund. These costs shall not exceed $15,000.
8 Settlement Class Counsel will be paid up to 25% of the Settlement Total, which
9 equals approximately $156,250 for Class Counsel Fees Payment and up to $25,000 for
12 Subject to Court approval, Plaintiffs shall receive a Service Payment of $5,000 each
13 in recognition of the services they rendered in obtaining the settlement for the benefit of the
14 Settlement Class, as described herein, and the financial risks undertaken by the Plaintiffs in
15 pursuing this matter on behalf of the Settlement Class.
16 E. Payment to the LWDA.
17 The Parties agree to allocate $5,000.00 of the Settlement Total, as penalties
18 authorized by PAGA. Seventy-five percent (75%) of this amount, which is $3,750, will be
19 paid to the LWDA and twenty-five percent (25%) of this amount will be distributed to
22 Settlement Class Members shall be paid their Settlement Shares from the Qualified
23 Settlement Fund after deduction of (1) Claims Administration Costs; (2) Counsel Fees
24 Payment; (3) Class Counsel Litigation Expenses Payment; (4) the Service Payments to the
25 Class Representatives; and, (5) amounts paid to the LWDA for PAGA penalties. The
26 amount left after these deductions from which to pay Settlement Class Members is
28 The Settlement Share for each Claimant will be calculated by (a) dividing the Net
-5-
NOTICE OF CLASS ACTION SETTLEMENT AND FINAL FAIRNESS HEARING
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 Settlement Total by the total number of work weeks in a covered position during the Class
2 Period for all Class Members and (b) multiplying the result by each individual Claimant’s
5 The Settlement Payments paid each Settlement Class Member will be allocated
6 between wages, interest, penalties and the individual’s payment for alleged civil (PAGA)
7 penalties. One-half (50 %) of each Settlement Share shall be allocated to wages (the
8 “Wage Portion”). Accordingly, the Wage Portion is subject to wage withholdings, and
9 shall be reported on IRS Form W-2. One-half (50%) of each Settlement Share shall be
10 allocated to interest and penalties allegedly due to employees (the “Non-Wage Portion”).
11 Accordingly, the Non-Wage Portion shall not be subject to wage withholdings, and shall be
16 and date the enclosed Claim Form and mail the completed Claim Form postmarked by [60 days
18
8X8 Overtime Settlement
19 c/o Gilardi & Co. LLC
P.O. Box ____
20 Corte Madera, CA 94976-1110
Telephone: (866) ___________
21
A copy of your Claim Form is enclosed. (If you need an extra copy, contact the Settlement
22
Administrator at the address or telephone number above). If any information provided on the Claim
23
Form is incorrect, please make corrections. For example, if your address is incorrect, please
24
indicate your correct address. Also, please provide your telephone number and any other requested
25
information if it is not already filled in. If you wish to have confirmation that the Settlement
26
Administrator has received your Claim Form, please send your Claim Form to the Settlement
27
Administrator by certified U.S. Mail with a return-receipt request.
28
-6-
NOTICE OF CLASS ACTION SETTLEMENT AND FINAL FAIRNESS HEARING
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
2 B. What if I do nothing?
3 If you do nothing -- that is if you do not mail a timely Claim Form or timely opt out
4 from the Class in the manner described below – you will not be entitled to a share of the
5 Settlement. However, you will be bound by the terms of the Settlement, including the
6 Release.
8 If you do not wish to participate in the settlement, you may exclude yourself (“opt
9 out”) by completing the Election Not to Participate in Settlement that is enclosed. The
10 Election Not to Participate in Settlement form must be completed, signed, dated, and
-7-
NOTICE OF CLASS ACTION SETTLEMENT AND FINAL FAIRNESS HEARING
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 file a written objection and notice of intention to appear at the Final Fairness Hearing
2 described below in Section VII. You must file these documents, along with any brief,
3 exhibits, and/or other material that you wish the Court to consider, with the Clerk of the
4 Court, Santa Clara County Superior Court, 191 North First Street, San Jose, CA 95113. In
5 addition, you must send copies to the Settlement Class Counsel and Defense Counsel
7 Any written objections should state each specific reason for your objection and any
8 legal support for each objection. Your objection must also state your full name, address,
9 and the dates of your employment by 8X8. To be valid and effective, any objections to the
10 proposed settlement must be filed with the Clerk of the Court and served upon each of the
11 above-listed attorneys no later than ______, 2011 [insert date 45 days from mailing of
12 notice].
13 If you object to the Settlement, you will remain a member of the Class, and if the
14 Court approves the Settlement, you will be bound by the terms of the Settlement in the
15 same way as Class Members who do not object, unless you have opted out of the
16 Settlement in the manner described above, and if you have timely submitted a valid Claim
17 Form, you will receive your Settlement Share despite your objection to the Settlement. .
18 VII. RELEASE OF CLAIMS.
19 1. In consideration of the monetary sum provided by Defendant and upon final
20 approval of this Agreement by the Court, the Settlement Class and each of the Class
21 Members hereby waive, fully release and forever discharge the Releasees from any and all
22 claims, debts, liabilities, demands, obligations, damages, action or causes of action of any
23 kind, whether known or unknown, which have been or could have been asserted against
24 Defendant and/or the Releasees arising out of or related to all claims for wages, overtime
25 pay, pay for all time allegedly worked but not compensated, commissions, business
26 expenses and all other claims of any kind for wages, penalties, interests, costs and
27 attorneys’ fees arising from the alleged violation of any provision of common law,
28 California law and/or Federal law which were or could have been raised as part of the
-8-
NOTICE OF CLASS ACTION SETTLEMENT AND FINAL FAIRNESS HEARING
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 Named Plaintiffs’ claims, including but not limited to claims under California Labor Code
2 Sections 201, 202, 204, 206.5, 210, 218, 226, 226.7, 510, 512, 551, 552, 558, 1182, 1194,
3 1197, 1198, 2698, 2699, 2699.5, 2802 and Business and Professions Code sections 17200 et
4 seq. except as to such rights or claims as may be created by this Agreement occurring
5 during the Class Period. Class Period is the period of time from January 27, 2006 through
6 June 30, 2010. Nothing in this Agreement shall be construed to waive any right that is not
7 subject to waiver by private agreement, including without limitation any claims arising
8 under state unemployment insurance or workers’ compensation laws. This settlement and
9 release shall be binding on all Class Members and Parties, whether or not they submit a
10 claim form or receive a payment pursuant to this Settlement unless they opt out of the
11 Settlement. The effect of the Settlement and the Release extends to 8X8 and its officers,
14 You will also waive all rights and benefits afforded by California Civil Code section
16 “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
17 release, which if known by him or her must have materially affected his or
her settlement with the debtor.”
18
VIII. FINAL FAIRNESS HEARING.
19
The Santa Clara County Superior Court will hold a hearing in Department 1, located
20
at 191 North First Street, San Jose, CA 95113, on ___________, 2011, at [TIME], to
21
determine whether the settlement should be finally approved as fair, reasonable, and
22
adequate (“Final Fairness Hearing”). The Court also will be asked to approve Settlement
23
Class Counsel’s request for attorneys’ fees costs and the Service Payments to be paid to the
24
Plaintiffs. Settlement Class Counsel’s application for attorneys’ fees and reimbursement of
25
expenses will be on file with the Court no later than the date the Notice is mailed to the
26
Class, and the motion will be scheduled to be heard by the Court at the Final Fairness
27
Hearing, and will be available for review after that date. The hearing may be continued
28
-9-
NOTICE OF CLASS ACTION SETTLEMENT AND FINAL FAIRNESS HEARING
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 without further notice to the Settlement Class. It is not necessary for you to appear at this
2 hearing unless you object to the proposed settlement and you have timely filed an objection
5 The above is a summary of the basic terms of the settlement. For the precise terms
6 and conditions of the settlement, you should consult the complete Settlement Agreement,
7 which is on file with the Clerk of the Court. The pleadings and other records in this
8 Litigation, including the Settlement Agreement, may be examined at any time during
9 regular business hours at the Office of the Clerk of the Orange Superior Court, 751 West
10 Santa Ana Boulevard, Santa Ana, California 92701. Please put your social security number
11 on all correspondence to Settlement Class Counsel and to the Claims Administrator. If you
12 move after receiving this notice, or if it was incorrectly addressed, please provide your
17 ADMINISTRATOR.
18
19
20
21
22
23
24
25
26
27
28
- 10 -
NOTICE OF CLASS ACTION SETTLEMENT AND FINAL FAIRNESS HEARING
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 EXHIBIT B
2
3 [CLAIM FORM]
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
-2-
CLASS ACTION SETTLEMENT AGREEMENT
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
CLAIM FORM
I. CLAIMANT IDENTIFICATION:
1. Were you employed by 8X8, Inc. as a Sales Representatives, Account Managers and/or
Account Executives and classified as “exempt” from overtime for one or more weeks during
the period January 27, 2006 and June 30, 2010?
YES________
NO_________
If you answered “NO” you are not included in the class that is the subject of this lawsuit, and
you should not further complete or return this Claim Form.
2. 8X8, Inc.’s personnel records state that the dates you were employed as an exempt a Sales
Representative, Account Manager and/or Account Executive qualifying you for inclusion as a
member of the Settlement Class are ________[PRE-PRINTED]__________.
NO_________
If you marked “NO” to question no. 2, please attach documentation which supports your
belief. Failure to provide supporting documentation of the dates you held a position
qualifying you for inclusion as a member of the Settlement Class may result in your dispute
being rejected.
claims set forth in the Settlement Agreement. The full and precise terms of the proposed
settlement are contained in the “Class Action Settlement Agreement” filed with the court.
Claimant further acknowledges that Claimant is bound by and subject to the terms of any
judgment that may be entered in this class action. Claimant agrees to furnish additional
information to support this claim if required to do so.
V. NO RETALIATION
Defendant will not retaliate against any person because he or she submits a Claim Form in
connection with this settlement.
I declare under penalty of perjury pursuant to the laws of the United States of America that the
foregoing statements are true, correct, and complete. Executed this ____________day of
_____________, 2011, at ____________________, __________.
(month) (year) (city) (state)
____________________________________
Signature of Claimant
2
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
Name: _____________________________________________________________________
(Print) Last First Middle
Reminder checklist:
1. Sign and date directly above.
2. Keep a copy for your records.
3. Send Proof of Claim Form via first-class mail to:
8X8 Overtime Settlement
c/o Gilardi and Company LLC
______________________
______________________
4. Make sure that the Proof of Claim is post-marked no later than by _____________, 2011.
3
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 EXHIBIT C
-3-
CLASS ACTION SETTLEMENT AGREEMENT
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
IN AND FOR THE COUNTY OF SANTA CLARA
11
12
13 )
NIKKI MEIERDIERCKS, an individual; ) Case No. 30-2009-00317275
14 KARIN FLAVETTA, an individual; )
FRANK TORRES, an individual; on ) [PROPOSED] ORDER GRANTING
15 behalf of themselves, and on behalf of all ) PRELIMINARY APPROVAL OF
persons similarly situated, ) CLASS ACTION SETTLEMENT
16 )
Plaintiffs, ) Date: __________________
17 ) Time: ______________
vs. )
18 ) Dept.: 1
8X8, INC.; and Does 1 to 10, ) Judge: Hon. James Kleinberg
19
20 Defendants.
21
22
23
TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
24
The Motion for Preliminary Approval of Class Action Settlement by Plaintiffs Nikki
25
Meierdiercks, Karin Flavetta, and Frank Torres (“Plaintiffs”) in the above-entitled matter
26
came on before this Court on ________________, 2011. Blumenthal, Nordrehaug &
27
Bhowmik, appeared for Plaintiffs and the putative Class; Simpson, Garrity, Innes & Jacuzzi
28
-1-
[PROPOSED] FINAL APPROVAL ORDER
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 appeared on behalf of Defendant 8X8, Inc. (“Defendant”). After reviewing and considering
2 the Class Action Settlement Agreement, Plaintiffs’ memorandum of points and authorities,
3 the Declaration of Kyle Nordrehaug, the proposed Notice and Claim Form, and good cause
4 appearing thereof, the Court makes the following findings of fact and law:
8 hereby GRANTED.
10 Agreement (“Settlement Agreement”). The Court preliminarily finds that the Settlement
11 Agreement is fair, adequate and reasonable and preliminarily approves the terms of the
12 settlement including the amount of the Settlement Total, the attorneys’ fees, the payment of
15 Settlement of Class Action in the form attached as Exhibit A to the Settlement Agreement
16 and the Claim Form attached as Exhibit B to the Settlement Agreement. The Court
17 approves the procedure for Class Members to opt out and to object as set forth in the
18 Notice. The Court approves the Election Not to Participate in Settlement in the form
20 3. The provisions of the Settlement Agreement, and the provisions of the Class
21 Notice and the Claim Form, are deemed incorporated herein as if expressly set forth, and
22 have the full force and effect of an Order of this Court. Upon final approval of the
23 Settlement Agreement at or following the Final Approval Hearing, all provisions of the
24 Settlement Agreement shall be deemed incorporated herein as if expressly set forth, and
25 shall have the full force and effect of an Order of this Court. All terms defined therein shall
28 found to be the best means practicable of providing notice under the circumstances, and,
-2-
[PROPOSED] FINAL APPROVAL ORDER
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 when completed, shall constitute due and sufficient notice of the class action, proposed
2 settlement, and the final approval hearing to all persons affected by and/or authorized to
7 7. The Court approves the selection of Gilardi & Co. to be the Claims
8 Administrator. The expenses of the Claims Administrator shall be payable from the
11 __________, 2011 at __:__ p.m. to determine whether the proposed settlement of the
12 Action should be finally approved by the Court and the amount of attorneys’ fees, litigation
13 expenses and service awards that should be awarded in accordance with the Settlement
14 Agreement.
15 9. No later than thirty (30) days before the Final Fairness Hearing, Plaintiffs
16 shall submit their Motion for Final Approval Class Action Settlement to Department 1 of
17 this Court.
18 10. After entry by the Court of this Order, and as provided for in the Settlement
19 Agreement, the Parties shall cause to be mailed by the Settlement Administrator a Notice of
20 Class Action Settlement in the form attached as Exhibit A to the Settlement Agreement, a
21 Claim Form in the form attached as Exhibit B to the Settlement Agreement; and an Election
23 Exhibit F. Prior to the Final Fairness Hearing, Class Counsel shall file with the Court
24 declaration of due diligence setting forth its compliance with the procedures set forth in the
25 Settlement Agreement. Compliance with these procedures shall constitute due and
26 sufficient notice to Class Members of the pendency of the Litigation, the certification of the
27 Class, the Settlement Agreement, this Order for Notice of Class Settlement, and the Final
-3-
[PROPOSED] FINAL APPROVAL ORDER
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 11. Class Members who object to approval of the Settlement Agreement may
2 appear at the Final Fairness Hearing to object to the Settlement Agreement; provided,
3 however, that each such objecting Class Member shall file with this Court and serve upon
4 Class Counsel and Defense Counsel written notice of his or her intent to object along with
5 any briefs, exhibits, and any other supporting materials, setting forth all his or her
6 objections to the settlement in accordance with the Objection procedure set forth in the
8 12. No Class Member shall be entitled to be heard at the Final Fairness Hearing,
9 and no papers or briefs of objecting Class Members shall be received or considered by the
10 Court, unless that Class Member has timely submitted the written notice of intent to object
12 13. Any Class Member who fails to submit timely written notice of intent to
13 object and supporting papers shall be deemed to have waived and shall be forever
14 foreclosed from questioning or making any objection to the Settlement Agreement, except
15 by special permission of the Court, and shall be subject to and bound by the Settlement
16 Agreement.
18 Counsel for Defendant wishes the Court to consider to support the settlement or Settlement
19 Class Counsel’s request for attorneys’ fees, including any documentation or memoranda
20 that the Parties wish to file in response to any objections to the settlement or request for
21 attorneys’ fees made by any Objecting Settlement Class Members, shall be filed with the
22 Court no later than five (5) court days before the date of the Final Fairness Hearing.
23 IT IS SO ORDERED.
24
Dated: ________________ __________________________________________
25 THE HONORABLE JAMES KLEINBERG
JUDGE OF THE SUPERIOR COURT
26
FOR THE COUNTY OF SANTA CLARA
27 STATE OF CALIFORNIA
28
-4-
[PROPOSED] FINAL APPROVAL ORDER
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 EXHIBIT D
-4-
CLASS ACTION SETTLEMENT AGREEMENT
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
IN AND FOR THE COUNTY OF SANTA CLARA
11
12
13 )
NIKKI MEIERDIERCKS, an individual; ) Case No. 30-2009-00317275
14 KARIN FLAVETTA, an individual; )
FRANK TORRES, an individual; on ) [PROPOSED] ORDER GRANTING
15 behalf of themselves, and on behalf of all ) FINAL APPROVAL OF CLASS
persons similarly situated, ) ACTION SETTLEMENT
16 )
Plaintiffs, ) Date: __________________
17 ) Time: ______________
vs. )
18 ) Dept.: 1
8X8, INC.; and Does 1 to 10, ) Judge: Hon. James Kleinberg
19
20 Defendants.
21
22
23
Plaintiffs’ motion for an order finally approving the Class Action Settlement
24
Agreement (“Settlement Agreement”) and for an award of attorneys’ fees and costs duly
25
came on for hearing on ____________, 2011 before the Honorable James Kleinberg, Judge
26
of the above entitled Court. Kyle Nordrehaug of the law firm of Blumenthal, Nordrehaug
27
& Bhowmik appeared on behalf of Plaintiffs Nikki Meierdiercks, Karin Flavetta, and Frank
28
-1-
[PROPOSED] FINAL APPROVAL ORDER
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 Torres (“Plaintiffs”). Jamie Rudman of the law firm of Simpson, Garrity, Innes & Jacuzzi
3 I.
4 FINDINGS
5 Based on the oral and written argument and evidence presented in connection with
9 settlement. At this same time the court approved certification of a provisional settlement
10 class.
13 mailed by first class mail to class members at their last known addresses on or about
14 _____________, 2011. Mailing of class notice and claim form at their last known
15 addresses was the best notice practicable under the circumstances and was reasonably
16 calculated to communicate actual notice of the litigation and the proposed settlement to
19 There was an adequate interval between notice and deadline to permit class members to
20 choose what to do and act on their decision. ____ class members opted out.
21 Fairness Of Settlement
22 1. The Settlement Agreement is entitled to a presumption of fairness.
25 between the parties during a mediation before David Rotman, a respected mediator of wage
26 and hour class actions. There has been no collusion between the parties in reaching the
27 proposed settlement.
-2-
[PROPOSED] FINAL APPROVAL ORDER
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
3 employment class action litigation. All counsel recommended approval of the Settlement
4 Agreement.
8 of the Settlement Agreement is reasonable considering the strengths and weaknesses of the
9 claims asserted in this action and is fair, reasonable and adequate compensation for the
10 dismissal of this action and release of class members’ claims, given the uncertainties and
11 risks of the litigation and the delays which would ensue from continued prosecution of the
12 action.
15 Attorneys’ Fees
16 1. The Settlement Agreement provides for an award of up to
17 $156,250.00 as Class Counsel Fees Payment and up to $25,000 for Class Counsel Litigation
18 Expenses Payment in this action, subject to the Court’s approval. Class Counsel requests
23 of the contingent nature of Settlement Class Counsel's fee, the hours worked by Settlement
24 Class Counsel, and the results achieved by Settlement Class Counsel. The requested
25 attorneys’ fee award represents twenty-five percent (25%) of the Settlement Total which is
26 reasonable and on the low end of the benchmark for fee awards in common fund cases.
27 Service Award
28 3. The Settlement Agreement provides for a service award of up to
-3-
[PROPOSED] FINAL APPROVAL ORDER
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 $5,000.00 for each of the Plaintiffs, subject to Court's discretion. The amount of the
2 payment is reasonable in light of the risks and burdens undertaken by a named plaintiff in
3 class action litigation and the services rendered by the Plaintiffs to obtain this Settlement.
4 II
5 ORDERS
6 Based on the foregoing findings, and good cause appearing, IT IS HEREBY ORDERED,
8 1. The Class is certified for the purposes of settlement only. The Class
10 All persons who worked in California for 8x8, Inc. for one or more weeks between
11 January 27, 2006 and June 30, 2010 as Sales Representatives, Account Managers
12 and/or Account Executives and who were classified as “exempt” from overtime.
13 2. All persons who meet the foregoing definition are members of the
14 Class, except for those individuals who filed a timely request for exclusion from the class.
16 adequate, and in the best interest of the Class and its members.
18 Payment and $__________ for Class Counsel Litigation Expenses Payment Attorneys’
19 Fees. Class Counsel shall not seek or obtain any other compensation or reimbursement
22 is approved.
24 entered. The judgment shall bind each member of the Class. The judgment shall operate as
25 a full release and discharge of claims. All rights to appeal the judgment have been waived.
26 The judgment and final order shall have a res judicata effect and bar each Plaintiff and each
27 Class Member who has not been excluded from the Settlement Class from bringing any
28 action asserting “Released Claims” as that term is defined in the Settlement Agreement.
-4-
[PROPOSED] FINAL APPROVAL ORDER
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 7. Notice of entry of this order and the ensuing final judgment shall be
2 given to Class Counsel on behalf of Plaintiffs and all members of the Settlement Class. It
3 shall not be necessary to send notice of entry of this order or the ensuing final judgment to
4 individual members of the Class. The time for any appeal by any member of the Class shall
5 run from service of notice of entry of the order and judgment on Class Counsel and
6 Defendant.
8 construe, interpret, implement, and enforce the Settlement Agreement, to hear and resolve
9 any contested challenge to a claim for settlement benefits, and to supervise and adjudicate
11
Dated: ________________ __________________________________________
12 THE HONORABLE JAMES KLEINBERG
JUDGE OF THE SUPERIOR COURT
13
FOR THE COUNTY OF SANTA CLARA
14 STATE OF CALIFORNIA
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[PROPOSED] FINAL APPROVAL ORDER
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 EXHIBIT E
2 [PROPOSED JUDGMENT]
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CLASS ACTION SETTLEMENT AGREEMENT
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
9
SUPERIOR COURT OF CALIFORNIA
10
IN AND FOR THE COUNTY OF SANTA CLARA
11
12
NIKKI MEIERDIERCKS, an individual; Case No. 110cv162413
13 KARIN FLAVETTA, an individual;
FRANK TORRES, an individual; on [PROPOSED] JUDGMENT
14 behalf of themselves, and on behalf of all
persons similarly situated,
15
Plaintiffs,
16
vs.
17
8X8, INC.; and Does 1 to 10,
18 Dept.: 1
Judge: Hon. James Kleinberg
19 Defendants.
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The parties having settled this action and the Court having entered a Final Approval
21
24 1. This entire action, including all claims asserted on behalf of Plaintiffs Nikki
25
Meierdiercks, Karin Flavetta, and Frank Torres (“Plaintiffs”) individually and on behalf of
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the Class, be, and it hereby is, dismissed with prejudice.
27
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PROPOSED] JUDGMENT
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
2 enforce the Class Action Settlement Agreement (“Settlement Agreement”), to hear and
3
resolve any contested challenge to a claim for settlement benefits, and to supervise and
4
adjudicate any dispute arising from or in connection with distribution settlement benefits.
5
3. Each party shall bear its own attorneys’ fees and costs, except as otherwise
6
provided in the Settlement Agreement and the Order Granting Final Approval of Class
7
8 Action Settlement.
9 4. Plaintiff and each member of the “Class” have released and are hereby
10 permanently enjoined and restrained from filing or prosecuting any “Released Claims”
11
against the Defendant 8X8, Inc. (“Defendant”) or any of the “Releasees.”
12
5. As used in paragraph 4 above, the quoted terms have the meaning set forth
13
below:
14
15 a. “Class” means: “All persons who worked in California for 8x8, Inc.
16 for one or more weeks between January 27, 2006 and June 30, 2010 as Sales
17 Representatives, Account Managers and/or Account Executives and who were classified as
18 “exempt” from overtime”
19
b. “Released Claims” mean and include those claims as defined in
20
Section III(F) of the Settlement Agreement.
21
c. “Releasees” means 8x8, Inc., its affiliates, subsidiaries, parent,
22
23 successors-in-interest, and assigns, and all of their present, former and future officers,
28 Dated: ________________
________________________________________________
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[PROPOSED] JUDGMENT
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
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[PROPOSED] JUDGMENT
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1 EXHIBIT F
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CLASS ACTION SETTLEMENT AGREEMENT
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
IF YOU WISH TO BE EXCLUDED FROM THE CLASS, YOU MUST COMPLETE, SIGN,
DATE, AND RETURN THIS FORM TO THE FOLLOWING ADDRESS:
YOU SHOULD SEND THIS FORM BY FIRST-CLASS UNITED STATES MAIL. IT MUST BE
POSTMARKED NO LATER THAN _____________, 2011.
I hereby elect to opt out and exclude myself from the Class in the class action “Nikki
Meirdiercks, et al. v. 8x8, Inc.” Case No. 110cv162413, (the “Action”), filed by Plaintiffs against
Defendant on January 27, 2010 in the Superior Court for the County of Santa Clara. I confirm that I
have received the Notice of Class Action Settlement in the Action. I have decided NOT to participate
in the proposed settlement. I understand that, by excluding myself from the Settlement, I am not
entitled to receive any payment from the Settlement.
Dated: _____________________________________________
Signature
_____________________________________________
Type or print name
_____________________________________________
All other names used during employment at 8X8, Inc.
_____________________________________________
Street address
_____________________________________________
City, state, and zip code
_____________________________________________
Telephone number
_____________________________________________
Social security number
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
EXHIBIT #2
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
Blumenthal, Nordrehaug & Bhowmik (AV)
2255 Calle Clara, La Jolla, California 92037
Tel: (858) 551-1223
Fax: (885) 551-1232
FIRM RESUME
Areas of Practice: Consumer and Securities Class Action, Wage and Hour Class Action, Civil
Litigation, Transactional Law, Business Litigation, Products Liability and Construction Defects.
ATTORNEY BIOGRAPHIES
Norman B. Blumenthal
Partner
Practice Areas: Consumer and Securities Class Action, Civil Litigation, Wage and Hour Class
Actions, Transactional Law
Admitted: 1973, Illinois; 1976, California
Biography: Law Clerk to Justice Thomas J. Moran, Illinois Supreme Court, 1973-1975. Instructor,
Oil and Gas Law: California Western School of Law, 1981; University of San Diego School of Law,
1983. President and Chairman of the Board, San Diego Petroleum Club Inc., 1985-1986. Chief
Operating Officer and General Counsel, Brumark Corporation, 1980-1987.
Member: San Diego County, Illinois State and American Bar Associations; State Bar of California.
Educated: University of Wisconsin (B.A., 1970); Loyola University of Chicago (J.D., 1973)
Born: Washington, D.C., 1948
Kyle R. Nordrehaug
Partner
Practice Areas: Consumer and Securities Class Actions, Wage and Hour Class Actions, Civil
Litigation
Admitted: 1999, California
Member: State Bar of California, Ninth Circuit Court of Appeals, Third Circuit Court of Appeals
Educated: University of California at Berkeley (B.A., 1994); University of San Diego School of
Law (J.D. 1999)
Born: San Diego, California, 1972
Aparajit Bhowmik
Partner
Practice Areas: Civil Litigation; Consumer Class Actions, Wage and Hour Class Actions
Admitted: 2006, California
Educated: University of California at San Diego (B.A., 2002); University of San Diego School of
Law (J.D. 2006)
Scott Macrae
Contract Attorney
Practice Areas: Consumer and Securities Class Action
Admitted: 1982, California
Educated: Bowdoin College (B.A., 1978); University of California at Berkeley,
Boalt Hall School of Law (J.D., 1982)
Born: Summit, New Jersey, 1956
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
REPORTED CASES
In re Tobacco Cases II, 41 Cal. 4th 1257 (2007); Washington Mutual Bank v. Superior Court, 24
Cal. 4th 906 (2001); Rocker v. KPMG LLP, 148 P.3d 703; 122 Nev. 1185 (2006); PCO, Inc. v.
Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP, 150 Cal. App. 4th 384 (2007); Hall
v. County of Los Angeles, 148 Cal. App. 4th 318 (2007); Coshow v. City of Escondido, 132 Cal.
App. 4th 687 (2005); Daniels v. Philip Morris, 18 F.Supp 2d 1110 (S.D. Cal.1998); Gibson v. World
Savings & Loan Asso., 103 Cal. App. 4th 1291 (2003); Jordan v. Department of Motor Vehicles,
75 Cal. App. 4th 445 (1999); Jordan v. Department of Motor Vehicles, 100 Cal.App. 4th 431 (2002);
Norwest Mortgage, Inc. v. Superior Court, 72 Cal.App.4th 214 (1999); Hildago v. Diversified
Transp. Sya, 1998 U.S. App. LEXIS 3207 (9th Cir. 1998); Kensington Capital Mgal. v. Oakley, Inc.,
1999 U.S. Dist LEXIS 385; Fed.Sec.L.Rep. (CCH) P90, 411 (1999 C.D. Cal.); Lister v. Oakley, Inc.,
1999 U.S. Dist. LEXIS 384; Fed. Sec. L. Rep. (CCH) P90,409 (C.D Cal. 1999); Olszewski v.
Scripps Health, 30 Cal. 4th 798 (2003); Steroid Hormone Product Cases, 181 Cal. App. 4th 145
(2010); Owen v. Macy's, Inc., 175 Cal. App. 4th 462 (2009); Taiheiyo Cement Corp. v. Superior
Court, 117 Cal. App. 4th 380 (2004); Taiheiyo Cement Corp. v. Superior Court, 105 Cal.App. 4th
398 (2003); McMeans v. Scripps Health, Inc., 100 Cal. App. 4th 507 (2002); Ramos v. Countrywide
Home Loans, 82 Cal.App. 4th 615 (2000); Tevssier v. City of San Diego, 81 Cal.App. 4th 685
(2000); Washington Mutual Bank v. Superior Court, 70 Cal. App. 4th 299 (1999); Silvas v. E*Trade
Mortg. Corp., 514 F.3d 1001 (9th Cir. 2008); Silvas v. E*Trade Mortg. Corp., 421 F. Supp. 2d 1315
(S.D. Cal. 2006); McPhail v. First Command Fin. Planning, Inc., 2009 U.S. Dist. LEXIS 26544
(S.D. Cal. 2009); McPhail v. First Command Fin. Planning, Inc., 251 F.R.D. 514 (S.D. Cal. 2008);
McPhail v. First Command Fin. Planning, Inc., 247 F.R.D. 598 (S.D. Cal. 2007); Barcia v.
Contain-A-Way, Inc., 2009 U.S. Dist. LEXIS 17118 (S.D. Cal. 2009); Barcia v. Contain-A-Way,
Inc., 2008 U.S. Dist. LEXIS 27365 (S.D. Cal. 2008); Wise v. Cubic Def. Applications, Inc., 2009
U.S. Dist. LEXIS 11225 (S.D. Cal. 2009); Gabisan v. Pelican Prods., 2009 U.S. Dist. LEXIS 1391
(S.D. Cal. 2009); La Jolla Friends of the Seals v. Nat'l Oceanic & Atmospheric Admin. Nat'l Marine
Fisheries Serv., 630 F. Supp. 2d 1222 (S.D. Cal. 2009); La Jolla Friends of the Seals v. Nat'l Oceanic
& Atmospheric Admin. Nat'l Marine Fisheries Serv., 2008 U.S. Dist. LEXIS 102380 (S.D. Cal.
2008); Louie v. Kaiser Found. Health Plan, Inc., 2008 U.S. Dist. LEXIS 78314 (S.D. Cal. 2008);
Weltman v. Ortho Mattress, Inc., 2010 U.S. Dist. LEXIS 20521 (S.D. Cal. 2010); Weltman v. Ortho
Mattress, Inc., 2008 U.S. Dist. LEXIS 60344 (S.D. Cal. 2008); Curry v. CTB McGraw-Hill, LLC,
2006 U.S. Dist. LEXIS 5920; 97 A.F.T.R.2d (RIA) 1888; 37 Employee Benefits Cas. (BNA) 2390
(N.D. Cal. 2006); Reynov v. ADP Claims Servs. Group, 2006 U.S. Dist. LEXIS 94332 (N.D. Cal.
2006); Kennedy v. Natural Balance Pet Foods, Inc., 2010 U.S. App. LEXIS 248 (9th Cir. 2010);
Kennedy v. Natural Balance Pet Foods, Inc., 2008 U.S. Dist. LEXIS 38889 (S.D. Cal. 2008);
Kennedy v. Natural Balance Pet Foods, Inc., 2007 U.S. Dist. LEXIS 57766 (S.D. Cal. 2007); Sussex
v. Turnberry/MGM Grand Towers, LLC, 2009 U.S. Dist. LEXIS 29503 (D. Nev. 2009); Picus v.
Wal-Mart Stores, Inc., 256 F.R.D. 651 (D. Nev. 2009); Tull v. Stewart Title of Cal., Inc., 2009 U.S.
Dist. LEXIS 14171 (S.D. Cal. 2009); Keshishzadeh v. Gallagher, 2010 U.S. Dist. LEXIS 46805
(S.D. Cal. 2010); In re Pet Food Prods. Liab. Litig., MDL Docket No. 1850 (All Cases), 2008 U.S.
Dist. LEXIS 94603 (D.N.J. 2008); Puentes v. Wells Fargo Home Mortgage, Inc., 160 Cal. App. 4th
638 (2008); Rezec v. Sony Pictures Entertainment, Inc., 116 Cal. App. 4th 135 (2004); Badillo v.
Am. Tobacco Co., 202 F.R.D. 261 (D. Nev. 2001).
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
LEAD COUNSEL - CLASS ACTION
Daniels, et al. v. Philip Morris,(In Re Tobacco Cases II) – Class Certification Granted, Review
before the California Supreme Court Affirmed Summary Judgment
San Diego Superior Court, Case No. JCCP 4042
Nature of Case: Unfair Business Practices-Unlawful, Deceptive and Unfair Marketing of Cigarettes
to Children
Plaintiff’s Counsel: Blumenthal & Nordrehaug; Thorsnes, Bartolotta & Mcguire; Chavez & Gertler
Francisco v. Diebold
U.S. District Court, Southern District of California, Case No. 09-cv-1889
Nature of Case: Employee Overtime, Labor Code Violations, FLSA
Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group
Handler v. Oppenheimer -
Los Angeles Superior Court, Civil Action No. BC343542
Nature of Case: Labor Code Violations
Plaintiff’s Counsel: Blumenthal & Nordrehaug; Perona, Langer, Beck, Lallande and Serbin
Linder v. OCWEN (In re Ocwen Federal Bank FSB Servicing Litig.) - In Litigation
U.S. District Court, Central District California, Case No. 07cv501
U.S. District Court, Northern Dist. Illinois, Case No. MDL 1604
Nature of Case: Lender Placed Insurance Overcharges
Plaintiff’s Counsel: Blumenthal & Nordrehaug; Nicholas & Butler
Meco v. International Medical Research (and related cases) - Judgment for Class After Trial
Los Angeles Superior Court
Nature of Case: Unfair Competition, Product Adulteration, Illegal Sale of Drugs
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
Plaintiff’s Counsel: Blumenthal & Nordrehaug
Ray v. Lawyers Title, Fidelity National, Commonwealth Land Title, Chicago Title - In Litigation
Orange County Superior Court, Case No. 30-2010-00359306
Nature of Case: Failure to Pay Severance Wages
Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; Pettersen & Bark
Santos v. Sleep Train (Sleep Train Wage and Hour Cases) - In Litigation
E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
Orange County Superior Court, Case No. 30-2008-00214586
San Francisco County Superior Court, Case No. JCCP 4553
Nature of Case: Commission Sales Employee Overtime and Labor Code Violations
Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group
Sorensen v. Binions, -
Nature of Case: ERISA violation
Plaintiff’s Counsel: Blumenthal & Nordrehaug; Gerard & Osuch