CaCsaes3e:039:0-c9v--c0v1-0216236-J3S-JWSWDoDcoucmuemnet4n3t6-12 FFiilleedd1112//2108//0099 PPaaggee418oof f192

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

4 ROSALIE PEARSON and DENNIS

) Case No. CV 09-01263 JSW

NEWSHAM, individually, on behalf of others )

5 similarly situated, and on behalf of the general ) [proposed] ORDER GRANTING

public,

) PRELIMINARY APPROVAL OF

6

) SETTLEMENT AND GRANTING

Plaintiff(s),

) COLLECTIVE AND CLASS ACTION

7

) CERTIFICATION

v.

)

8

) Judge: Hon. Jeffrey S. White

SAMSONITE COMPANY STORES, INC., ) Courtroom: 11, 19th Floor

9 SAMSONITE CORPORATION, and DOES 1 – )

50, inclusive,

) Date Action Filed: March 24, 2009

10

)

Defendant(s).

)

11

12

[PROPOSED] ORDER

13

Having reviewed the parties’ “Joint Stipulation of Settlement and Release Between

14 Plaintiffs and Defendants,” and the Joint Motion for Preliminary Approval of same, and
15 determined on a preliminary basis that it represents a fair resolution of this case, and having
16 reviewed the proposed class to be certified as a collective action under the Fair Labor Standards
17 Act, 29 U.S.C. §216, and, for portions of the class in California and New York, according to the
18
19 applicable standards under Fed.R.Civ.P. 23, and in light of the relevant authority and the entire

20 record in this case, the Court hereby CERTIFIES THE CLASS SOUGHT FOR SETTLEMENT

21 PURPOSES, NAMES BRYAN SCHWARTZ LAW AS CLASS COUNSEL, and GRANTS

22 PRELIMINARY APPROVAL of the Joint Stipulation of Settlement and Release Between

23 Plaintiffs and Defendant.
24
25 Dated: December 18, 2009

So Ordered.

26

_____________________________

27

Jeffrey S. White

United States District Court 28

 
 Case3:09-cv-01263-JSW Document781 Filed04/029/10 Page1 of 2

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

4 ROSALIE PEARSON and DENNIS

) Case No. CV 09-01263 JSW

NEWSHAM, individually, on behalf of others )

5 similarly situated, and on behalf of the general ) [proposed] ORDER GRANTING FINAL

public,

) APPROVAL OF SETTLEMENT, AND

6

) AWARDING ATTORNEYS’ FEES AND

Plaintiff(s),

) COSTS AND REPRESENTATIVE

7

) PLAINTIFFS’ ENHANCEMENTS

v.

)

8

) Judge: Hon. Jeffrey S. White

SAMSONITE COMPANY STORES, INC., ) Courtroom: 11, 19th Floor

9 SAMSONITE CORPORATION, and DOES 1 – )

50, inclusive,

) Date Action Filed: March 24, 2009

10

)

Defendant(s).

)

11

12

[PROPOSED] ORDER

13

On December 18, 2009, the Court granted preliminary approval of the “Joint Stipulation

14 of Settlement and Release Between Plaintiffs and Defendant.” Dkt. #63. For the reasons stated in
15 the “Joint Motion for Final Approval of Class Action Settlement and Plainitffs’ Unopposed
16 Motion for Representative Plaintiffs’ Enhancements and Plaintiffs’ Attorneys’ Fees and Costs,”
17 and applying each of the factors outlined by the 9th Circuit in Officers of Justice v. Civil Service
18
19 Com’n of City and County of San Francisco, 688 F.2d 615, 625 (9th Cir. 1982) and the other cases

20 cited in the Joint Motion, I have determined that this settlement is fundamentally fair, adequate,

21 and reasonable. The Court further grants the attorneys’ fees of $241,562.77 and costs of $35,000
22 allocated therein, which are reasonable and well-justified based on the fine result obtained for the 23
class, the risk taken by Class Counsel and amount of work Class Counsel expending in litigating 24
the matter on a contingency basis, and which comply with the 9th Circuit’s benchmark for 25 26 attorneys’ fees in a class action (attorneys’ fees equal 25% of the common fund). See, e.g.,
27 Powers v. Eichen, 229 F.3d 1249, 1256-57 (9th Cir. 2000). Applying the standards of Van

28 Vranken v. Atlantic Richfield Co., 901 F.Supp. 294, 299 (N.D.Cal.1995), the Court moreover

Case3:09-cv-01263-JSW Document781 Filed04/029/10 Page2 of 2

1 grants the modest enhancements of $5,000 each sought by the representative Plaintiffs, Rosalie

2 Perason and Dennis Newsham.
3 Thus, and in light of all of the relevant authority and the entire record in this case, the
4 Court hereby GRANTS FINAL APPROVAL of the Joint Stipulation of Settlement and Release
5 Between Plaintiffs and Defendant and the settlement payments to the class, enhancements to
6
7 representative Plaintiffs, and fees and costs to counsel outlined therein.

8

Without affecting the finality of this Order and Final Judgment, this Court retains

9 exclusive jurisdiction over the parties and the Settlement Class for all matters relating to this
10 Court Action, including the administration, interpretation, effectuation or enforcement of the
11 Stipulation of Settlement and this Order and Final Judgment.
12 So Ordered.
13

14 Dated: April 9, 2010 15 16

_____________________________ Jeffrey S. White
United States District Court

17

18

19

20

21

22

23

24

25

26

27

28

- 2 -

[PROPOSED] ORDER CV 09-01263 JSW

 
 Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page1 of 20

Bryan Schwartz (SBN 209903)
1 BRYAN SCHWARTZ LAW
180 Grand Avenue, Suite 1550
2 Oakland, CA 94612
Tel.: 510-444-9300
3 FAX: 510-444-9301
Email: Bryan@llryanSchwartzI.aw.com 4
Attomey for Individual and Representative Plaintiffs 5

6

7

IN THE UNITED STATBS DISTRICT COURT

NORTHERN DISTRICT OF C..A LIFORNIA
8

CV-09_1263-JSW
9

Before the lIon..Jeffrcy S. White 10

CLASS AND COLLF.CI1VE ACTrON
II

Rosalie Pearson and Dennis Newsham, 12 individuaUy, on behalf of others similarly

13

situated, <lnd on behalf of the genera! public,

14

Plaintiffs,

I<'IRST AMENDF.D COMPLAINT FOR DAMAGES, RESTITUTION AND IN.JUNCTlVE RF.I,mF
(1) Violation of Fair labor Standards Act 29 U.S.c. Seclion 207

15

vs.

16 Samsonite Company Stores, Inc., Samsonitc COJporation, and DOES 1-50,
17 inclusive,

18

DefendRllts.

(2) Violation of California Labor Code Seclion. 510,1194, and 1198, and IWC Wage Order(s)
(3) Failure 10 Provide Hemizcd Wage Statements (California Labor Code Sedion 226)

19

(4) Failnre to Provide aud/or Autborize

20

Meal and Rest Periods (California Labor Code 512, 226.7, and lWC Wage

Order(s» 21

22

(5) Violation of California Busine.~s and Professious Code Sections 17200 eI seq.

23

(6) Breach of Contract iu California

24

(7) Breach of Contract iu New York

(8) Violation of New York Wage and Hour

Law (New York Labor Law Article 19,

§§ 650 111 &eq., and New York State

ITc]!arfment of Labor Regulations, 12

27

N.y.C.R.R. Part 142)

(9) Retaliation for Protected Acti\'ity (New York Labor Law §215; Fair Labor

---o,c"O'~T --i \---

AMENDED CLASS AN!) COU.ECnVE ACTION COMPLATNT'----

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page2 of 20

Standards Act, 29 U.S.C. Section

1

215(a)(3»

2

DEMAND FOR JURY TRIAL

3

4

PRELIMINARY STATEMENT

5

L This is a collective and class action brought by Individual and Representative

6 Plaintiffs Rosalie "Lee" Pearson and Dennis Ncw~ham, on their own behalf and on behalr urlhe

7 proposed class identified below. Plaintiffs and the putative class members were or are employed

8 by Defendant Samsonite Company Stores, Inc., and certain Doe Defendants, or their

9 predecessors-ill-interest, as Storc Managers. As Store Managers, Plaintiffs and the putative class

10 members are, were, or should have been classified as covered, non-exempt employees under

II
federal and state wage and hour laws, and entitled to overtime pay consistent with the

12 requirements of these laws. These employees arc similarly sih18ted under the l'ederal Rules 0

13 Civil Procedure 23 and the Fair Labor Standards Act ("FLSA"), 29 U,S.C. § 216(b).

14

2. The Collective Class is made of an persons who are or have been employed by

15 Defendants as a Store Manager, at any time within the United States within thr!l<l years prior to

16 this action's filing date, through the date of final disposition of this action (the "Collective Class

17 Period").

18 3. The California Class i~ made up orall persons who are or have been employed by

19 Defendants as a Store Manager in the Slnle of Califomin within the period four years prior to the
20
filing date of this Complaint (the "California Class Period").

21

4. The New York ela"s is made up of aU persons who are or have been employed by

22 Defendants as a Store Manager in the State of New York within the period six years prior to the

23
filing date of this Complaint (the "New York Class Period," collectively with California the

24 "State Class Periods").

25 4. During the Collective Class Period and the State Class Periods, Defendants failed

26 to pay appropriate overtime compensation to each member of the Collective Class and Class as

27 required by federal and state law. Plaintilfs seek relief for the Class pursuant to the applicable
28

~2~1.LECTIVE I-------""C,C'"'C'"MWO"""D"';;D CLASS AND

ACTION COMPLAINT

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page3 of 20

1 Statc Law, Rules, Regulations, and Wage Ordcrs of the Industrial Wclfarc Commission ("IWC").

2 Plaintiffs also seek rclief for the Collectiv~ Class under the Fair Labor Standard~ Act. All of the

3 relief sought is to remedy the DefcndHllts' failure to pay all wages due, pay appropriate ovcrtime

4 compensation, to provide or authori:r.e meal and rest periods, and to maintain aacurate timc

5 records, in addition to injunctive relicf. Plaintifrs atso assert breach of contract claims, sincc they

6 were promised consideration of vacation timc based on hours worked, and they did net accrue

7 and were not paid for vacation time for their ovcrtime hourn.

8

5. At\er filing this lawsuit, Plaintiff Newsham suffcred retaliation when his rate 0

9 pay WlIS cut during Detendants' process of reclassifYing Store MHIlagers.

10

THE PARTIES

11

5 Individual and repre5cntative Plaintiff Rosalie "Lee" Pearson (the "California

12 Plaintiff') residcs in SlIn Francisco, California (San Francisco County). She has been cmploycd

J3 by DcfcndHllts sinC<l June 2006 as a Store Manager, working in San Francisco. l'laintilfPearson

14 brings her claim on behalf of herself and the Collective and CaHtbrnia Classes.

IS

6.

Individual and represcutativ~ Plaintiff Dennis Newsham (the "Ncw York

16 Plaintin") resides in New Yurk City, New York. He has been employed by Oefendants since

17 April 2007 as a Store Mauager, working in New York City. Plaintiff Newsham brings his claim

18 on behalf ofhimsclf and thc Collective and New York Classes.

]9

7. Upon information and belief, Defendant Samsonite Company Stores, Inc., is an

20 Indiana Curporation doing business in and maintaining offices in s~veral states throughout the

21 United States, including a facility in San FJaI\ciseo, California.

22

8. Upon information and belief, Defendant Samsonite Corporation is a Ddawdre

23 Corporation doing bu~ine&s in and maintaining offices in several states throughout the United

24 States, including a facility in San Francisco, California.

25

9. Defendants Does I-50, inclusive, are sued hcrein under fictitious names. Their

26 true names and capacities are Illlknown to Plaintifi's. When their true names and capacities are

27 ascertained, Plaintiffs will amend tllis complaint by inserting tlleir tOle names and capacities

28 herein. Plaintiffs arc infonned and believe and thereon allcge that each of the fictitiously-named -3-
FIRST AMENDED CLASS AND COL',,'·,'-',,'vn""CCinON COMPI ,MNT - - - - -

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page4 of 20

Defendants is responsible in some maJuler for the occurrences herein alleged, and that the 2 danmges of Plaintiffs and the potative c1a~~ members herein alleged were proximately caused by

3 sueh Defendants.

4

9, Plaintiffs arc informed, believe, and thereon allege that each of the Dofendants

5 herein was, at all times relevant to this action, the agent, employee, rcpre.'ientative partner, and/or

6 joint venturer of the remaining Defcndants and was acting within the course and seope of the

7 relationship. Plaintiffs arc further informed, believe, and thereon allege that eaeh of the

8 Defendants herein gave consent to, ratified and authorized the acts alleged herein to the remaining

9 Defendant~.

10

JURlSDK'TION AND VENUE

II

10, This Court has subject matter jurisdietiou pursuant to 28 U.S.C. § 1331 as thi~ case

12 is being brought UIlder the FLSA, 29 U.S.C. § 207 el seq. Each represeutative Plaintiffhas signed

13 a con~ent form to join this lawsuit, previously filed with this Court. "lhis Court has original

14 jurisdiction over all the state and J<~denll claims UIlder the Class Action Fairness Act, 28 U.S.C.

15 §1332(d), because, upon information and belief, the amoUllt in controversy exceeds

16 $5,000,000.00 and the parties are eiti:r.ens of diverse jurisdietious. This Court also has

17 supplemeutaljurisdiction over PI~intiffs' slate law claims pursuant to 28 U.S.c. § 1367.

18

11. Venue is proper iu thc United States District Court, Northern District orCalifomia

19 pursuant to 28 U.S.c. § 1391, because Defendauts openlle a facility in San Franciscu COimty,

20 California, and because a substaJltial part of the events giving rise to the claims occurred ill this

21 district.

22

12, Pursuant to Civil I..R. 3-2 (c) and (d), this actiou is properly as~igned to the

23 Northem District of California beclIllse a substantial portion of the events giving rise to this

24 dispute occurred in San Fnlficisco County, Califomia.

25

COLLECfIVE ACTION ALLEGATIONS

13, Plaintiffs briug this action on behalf of themselves and other employws similarly

27 situated as authori:r.ed UIlder FLSA, 29 U.S.C. § 216(h). The employees similarly situated are:

Collective Class: All per~ons who are or have been employed by Defendants as a
w=="-' - c - - - - - - - 1 FIRST AMENDED CLASS ANI) COLL'EiiCCTIVmE"AC-TI= ON iCM OMPL,AIN'/,

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page5 of 20

Store Manager, within the United Slates at any time three years

2

prior to the filing of this Complaint, to the final disposition of this

3

4

14. Upon infonnation and belief, Defendants suffered and permitted Plaintiffs and the

5 Collective Class to work more than forty hours per week \vithout appropriate overtime

6 compensation.

7

15. Defendants' unlawful conduct has been widespread, repeated, and consistent.

8

16. Upon information and belief, Defendants knew that Plaintiffs and the Collective

9 Class, performed work that required overtime pay. Defendants have operated lUlder a scheme to

10 dcpri-'e these employees of appropriate ovcrtim~ compensatiou by tailing to properly compensate

11 them for all hours worked.

12

17. Defendants misclassificd PlaintitIs and members of the Collective Class \vith the

13 Job titles of Store Manager as "exempt" from federal and state overtime laws. Defendants

14 misrepresented 10 these employees that they were "exempt" and therefore were not entitled to

15 overtime pay for houIS worked in excess offorty a week.

16

18. Defendants' conduct, as sct forth in this Complaint, was willful and in bad faith,

17 and has eauscQ significant damages to Plaiutiffs, and the Collective Class.

1 "

19. Def"'ndants are liable under the FLSA for failing to properly compensate Plaintins

19 and the Collective Class, and as such, notice should be scnt to the Collective Class. "Jbcre are

20 numerous similarly situated curreut and former employees of Defendants who have been denied

21 overtime pay in Violation of the FLSA who would benefit from the issuance of a Court supervised

22 notice of the present !aw~uil and the opportunity to join In the present lawsuit. Those sinlilarly

23 situated employees are known to Defendants and are readily identifiable through Defendants'

24 reconls.

25

CLASS ALLF,GATJONS

26

20. Plaintit1s bring this action as a class action pursuant to Rule 23 of the l"edenll

27 Rules of Civil Procedure on behalf of the following defined classes:

28

Proposed California Class: All employees of Defendants who were, are, or will

-5-

FmST AMEN[)EIl CLASS AND COLLFCTNEAcnON COMPLAINT

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page6 of 20

I

be employed in the State ofCaJifomia as a Store Manager at

2

any time within four years of the filing of this Complaint

3

IUllil the final disposition of this casco

4

An Prop(}sed New York Class: employees of Ocfendanls who were, arc, or will

5

be employed in the State of New York as II Store MlIllager

6

at any lime \\1lhin six years of the filing of this Complaint

7

until the fmal disposition of this CIISC.

8

21. Numerosity; The Proposed Class is ~ numerous that joinder or all members is

9 impracticable. Plaintiff is infomled an<.l believes, and on that basis alleges, that during the

10 relevant time period, Defendants employed dozens of people who arc geographically dispersed

11 and who satisfy the definition orthe Proposed Class.

12

22. Typicality: Plaintiffs' claims are lypical of the members of the Proposed

13 Classes. Plaintiffi; are infonncd and believe that, like other Store Managers, they routinely

14 worked more than eight holUs per day and more than 40 hours per week during the Class Period.

15 Plaintiffs had the same duties and responsibilities as other Class members and were subject to

16 Defendants' pnlicy and practice of improperly treating and classifying these employecs as

17 "exempt" from federal and state overtime law, misrepresenting to these cmployees that they were

18 cxempt from federal and state overtime law, improperly failing to pay appropriate overtime

19 compensation for aU hours worked, failing to provide or authori/e meal and rest breaks in

20 compliance with state laws, failing tn maintain accurate time records of hours worked by the

21 Proposed Classes, failing to is,ue accurate itemized wage statements to these individuals, an(}

22 failing to pay appropriate vacation guaranteed under contract for the number of hours they

23 m:tuaUy worked.

24

23. Superiority: A class action is superior to othcr available methods of the fair an(}

25 emcient adjudication of the controversy, particularly in the context of wage and hour litigation

26 where individual plaintiffs lack the financial resonrces to vigorously prosecute separate lawsuits

27 in federal court against large corporate defendants and fear retaliation. Prosecuting hundreds 0

28 identical, individual lawsuits nationwide does not promote judicial efficiency or equity aud
-6-
!--------C'"IRSTCA"Mw:'"'CD.'C'CC",C,"'''''''" COLLECTIVE ACTION COMPI.J\TNT-----

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page7 of 20

1 consislency in judicial results.

2

24. Adequacy: Plaintiffs will fairly and adequately protect the interests of the

3 Proposed Class, and has retained eounsc! experienced in complex wage and hour class and

4 collective action litigation .

5

25. .Commonality: Common questions of law and lact exist to all members of the

6 Proposed Class arrl predominate over any queslions solely affecting individual members of the

7 Proposed Class, including but not limited to:

8

A. Whether Defendanls improperly classified Plaintiffs and members of the

9

State Classes with the job title of Store Manager as exempt;

10

R. Whether Defendants unlawfully failed to fully pay appropriate overtime

"

compensation to members of the Propnsed Classes in violation of federal

"

and state wage laws;

"

c. Whether PI3intifis and State Clas.~ members who are no longer employed

14

with Defendants arc entitled to penalties lor failufC to timely pay wages

15

upon tennination of employment, pursuant to the applicable st3te laws;

"

n. Whether Defendants' policies 3ml practices provide andlor authorize meal

17

and res! pcriods in compliancc with applicable state laws;

18

E. Whether Delendants failed to keep accurate time records for all hours

"20

worked by the Plaintiffs and the Proposed Class in violation or FLSA, 29 U.S.C. § 201 et seq., and state wage laws;

"

F. Whethcr Dettmdants provided adequate itemized wage slatements to the

22

Plainti fl's and the Class pnrsuant to state wage laws;

23

G. Whether Defendants paid Plaintiffs and Stale Class members for the rut!

24

va~ation time they earned, based, as promised, on their actual hours

25

worked, including overtime hours;

26

H. The proper measure of damages sustained by the Proposed Classes; 3Ild

27

L

Whether DefendW1ts' actions were "willful."

28

26. This case is maintainable as a class 3etion under Fed. R. Civ. P. 23(b)(l) because

1r------~''''''''"7cACM''',illNDED

CLASS

AND

-7-
cor

.1.FCTlVL!

ACTION

COMP,j,C,A""'"'~---

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page8 of 20

prosecution of aetion~ by or against individual members of the class would result in inconsistent

2 or varying adjudications and create the risk of incompatible standards of conduct tor Defendants.

3 Further, adjudication of cach individual member's claim w; separate action would be dispositive

4 of the interest of other individual~ not party to this action, impeding their ability to protect their

5 interests.

6

27. Class certification is also appropriate under Fed. R. Civ. P. 23(b)(3) becau~e

7 questions of law and fact conilllOn to the Proposed Clas.~es predominate over any questions

8 aITeeling only individual members orlhe Proposed Clas~, and because a clw;s action is superior to

9 other available methods for the fair and emdent adjudication of tllis litigation. Defendants'

iO cOIlUllon and unitbnn policies and pmcti~es denied the Proposed Classes the overtime pay to

11 which they arc entitled. The damagcs suffered by thc individual Proposed Class mcmbers are

12 small compared tn the expense and bnrden of individual prosecution of this litigation. Proposed

J3 Class members fear workplace retaliation and being "blackballed" from obtaining fnture

14 employment in the retail industry. Tn addition, class certification is snperior because it will

15 obviate the need for unduly duplicative litigation that might result in inconsistent judgmcnts about

16 Defendants' practices.

17

28. Plaintiff intends to send notice to all members of the Proposed Classes to the

18 extent required by Rule 23. Thc names and address of the Proposed Classes are available from

19 Defendants.

20

INDIVIDIJAL CLAIM FOR RELIEF

21

29. On or about May 20, 2009, less than two months after engaging in protecteu

22 activity by filing this lawsuit alleging miscla~ific3tion of his Store Manager position as exempt

23 from overtime laws, Dcnnis Newsham was notified that DcfcndanL~ would be finally classifYing

24 his position as nOll-exempt.

25

30. Plaintiff Newsham's regular rate or pay just prior to filing the lawsuit and

26 immediately thereatler was $37.l274fhouf. On May 20, 2009, Defendants notified him that his

27 pay rate would be $31.27!llOnr going forward, as a result of his reclassification as a non-exempt

28 employee, though his job responsibilities remain unchanged.
~8~
- - - - - - - 1 -.'''I,,><i,cA'M,,",',C,,',C''"CC·''A',<,'A''ND"''COU.ECTIVE ACI ION COMPLA""C",

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page9 of 20

31. With this cut in his regular rate or pay, Plaintiff Newsham suffered unlawful

2 retaliation loc having engaged in protected activity.

3

32. As a fCsult of this retaliatory pay cut, Plaintiff Newsham has suffered menIal and

4 emotional distress.

5

F1RST CLAIM FOR RELIEF

6

Failure to Pay Overtime Compensation in Violation of the Fair Labur Standards Ad

7

(On Behalf ofl'laintiffs and the Collective Class)

8

33. PiainliITs, on behalf ofthcmselvcs and the co1!~!iye class, allege and incorporate

9 by reference the allegations in the preceding paragraphs.

iO

34. Plaintiffs consent in wri!ing to be a party of this action, pursuant to 29 U.S.C. §

II 216(b). Plaintiffs' ,vrilten consent forms were previously filed with this Court. Plaintiffs

\2 anticipate that other individuals will continue to sign consent fomls and join as plaintiffs.

13

35. At all relevant times, Defendanls have been, and continue to be, "employers"

14 engaged in interstate commerce and/or in the production of goods for commerce, within the

15 meaning of the l'LSA, 20 U.S.C. § 203. At all relevant times, Defendants have employed and

16 continues to employ employees, including Plaintills, and the Collective Class. At all relevant

17 times, upon information and belief, Defendants have had gross operating revenues in excess 0

18 $500,000.00.

19

36. The FLSA requires each covered employers such as Defendants to compensate all

20 non-exempt employees at a rate of not less than one and one-halftimes the regular rate of pay for

21 work perfOlTIled in exees.~ offorty hours per work w~""ek.

37. During their employmcnt with Defendants, within the applicable statute 0

23 limitations, Plaintiffs and the other Collective Class members worked in excess of forty hours per

24 workweek. De~pile the honrs worked by PlaintilTs and the Collective elm;s members, Defendants

25 willfully, in bad faith, and in knowing violation of the Federal Fair Labor Standard~ Act, failed

26 and refused to pay them the appropriate overtime compensation for all the hours worked in excess

27 offorty.

28
~9~
!-------"FJ"'"'"'cAOMWOrnhlCD"'E'D CLASS AND COLLECTIVE ACTION COMPLAINT

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page10 of 20

38. By failing to accurately record, report, amI/or preserve records of hours worked by

2 Plaintiffs and the Collective Class, Defendants have failed to make, keep, and prc!\erve records

3 with respect to each of ils employees sumcient to determine their wages, hours, and other

4 conditions and practice of employment, ill violation of the FLSA, 29 V.S.c. § 201, ef seq.

5

39. The foregoing conduct, a~ alleg~u, constitutes a willful violation of the FLSA,

6 ,vithin the meaning of29 U.S.C. § 255(3).

7

40. Plaintiffs, on behalf of themselves UIId the Colle<:tivc Class, seek damages in the

8 amount of their respective unpaid overtime compensation, liquidated damages from three years

9 immediately preceding the tiling of this action, plus interests and costs as allowed by law,

10 pursuant to 29 U.S.C. §§ 216(b) and 255(a), and sueh other legal and equitable relief as the Court

II deemsjustandproper.

12

41. Plaintiffs, on behalr or themselves and the Colle<:tive Class, seck recovery of their

13 attorneys' fees and costs to be paid by Defendants, as provided by the FLSA, 29 U.S.C. § 216(h).

14

SECOND CLAIM FOR RELIEF

15

Failure to Pay O~erlime Compcnsation in Violation of California Law

16

(On Behalr oflhc California Plaintiff and thc California Class)

17

42. Plainlifi' Pean;on, on behalf of hersdf and the California Class, alleges and

18 incorporates by referen~ the allegations in the preceding paragraphs.

19

43. AI all rele~ant times herein, Iwe Wage Order NO.7 (8 C.C.R. § 11070) and

20 California Labor Code §51O reqnired an employer, like Defendants, to pay overtime premilUll(s)

21 for hours worked in ex<:ess of 8 in a given workday, 40 in a given workweek, or on the seventh

22 day worked iu a single workweek. Pursuant to California Lahor Code § 1198, it is IIIllawrul to

23 employ persons for hnurs longer than the hours sct by the Industrial Welfare Commission

24 ("IWC"), or under conditions prohibited by the applicable \,age orders of the rwc.

2S

44. Plaintiff Pearson is informed and believes, and thereon alleges, that mcmbers 0

26 the Class worked in exeess of eight hours per day and in excess of 40 hours per week, and

27 Defendants unlawfully failed to pay members of the Class the proper overtime compensation

28 required in violation oOWC Wage Order 7 (8 C.C.R. § 11070), and the California Labor Code §§ -10-
FIRSt" AMENIlEIl CLASS AND COLLECTIVE ACTION COMPLAINT

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page11 of 20

510 and 1198. Pursuant 10 California Labor Code § 1194, the Plaintiff Pearson and the other

2 Class memhers an: entitled to recover their unpaid overtime compensation.

J

45. As a dir<::cl and proximale result of Defendants' unlawful conduct, a.~ set forth

4 herein, Plaintiff Pearson and the Cla~s have sustained damages, including loss of earnings for

5 hours of overtime worked on behalf of Defendants in an amollnlto be established al trial, plus

6 interesl, allomeys' fees and costs.

7

THIRD CLAIM FOR RELIEF

8

Failure to Provide Accurate Itemized Wage Statements

9

(On Behalf of the California Plaintiffanu the California Class)

10

46. PlaintilT Pearson, on behalf of herself and the California Class, alleges and

11 incorporates by reference the allegations in the preceding parag....lphs.

12

47. California I.abor Code § 226(a) providcs thaI, at the time of each paymenl 0

13 wages, an employer shall provide each employee with a wage statement itcmizing, among other

14 things, the total hours worked by the employee in lhe pay period. California Labor Code § 226(e)

15 provides that an employee suffering injury as a result of a knowing and intentional failure by an

16 employer to comply with Labor Code § 226(a) may Ie(;over the greater of his or her aetual

17 damage.~ or a pcnalty of $50 fur the initial pay period in which II violation occurs and $100 per

18 employee lor each violation in a subsequent pay period (up to a maximum of$4,000), in addition

19 to attorneys fees and costs.

20

48. Defendants knowingly and intcntionaily failed to provide timely, a~uratc,

21 itcmi7.ed wage statements including, infer alia, hours worked, to Plaintiff Pearson and the

22 Calilbmia Class In accordance with Labor Code § 226(a). Such failure caused iTUliry to Plainti

23 Pearson and Ihe California Class members, by, among other things, impeding them from knowing

24 the total hours worked ilnd the amount of wages to which they are and """Cre entitled. The

25 Caliromia Plaintiff and the CalHbmia Cla~s ilre thcrelbre entitled to the damages and penalties

26 provided for IUlder Labor Code § 226(e). Pursuant to Labor Code section 226(g), the Califonlia

27 Plaintiff and the California Class arc also entitled to and seek injunctive relief requiring

28 Defendanls to comply with Labor Code 226(a). -11-
- - - I FIRST AMEN[)ED cr .ASS AND COL"C'C'C"'"OV"F. AC liON COMPLAINT·----

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page12 of 20

1

FIFTH CLAIM FOR RELlEJ<'

2

Failure to Provide Rest Breaks and Meal Periods

3

(On Bellalr ufthe California Plaintiff !lnd the California Class)

4

49. Plaintiff Pearson, on behalf of herself and the California ChlS8, alleges and

5 inCOTporates by reference the allegations in the proceeding paragraphs.

6

50. California Labor Code section 512 prohibits an employer from employing an

7 employee for a work period ofmure than five hours per day without providing the employee with

8 a meal period of not less than 30 minutes, or for a work period of more than 10 hours per day

<) without providing the employee with a second meal period Dfnot less than 30 minutes.

10

51. Section 11 of Wage Order No, 7 provides (and al <111 times relevant hereto

11 provided) in relevant part that:

12

No employer shall employ any p~rson for a work period of more than fiv~ (5)

13

hours without a meal period or not less than 30 minutes, except that when a work

14

period of not more than six (6) hours will complete the day's work the meal period

may be waived by mutual consent of the employer and the employee. An employer

15

may not employ an employee for a work period of more than ten (10) hours per

day without providing the employee with a second meal period of not less than 30

16

minntes, except that if the tulal hours worked is no more than 12 hours, the second

17

meal period may be waived by mutual consent of the employer and the empluyee only if the fust meal period was not waived. Unless the employee is relieved ofaH

18

duty doring a 30 minute meal period, the meal period shall be considered an "on

duty" meal period and counted as lime worked. An "on duty" meal period shall be

19

permitted only when the nature of the work prevents an employee from being

relieved of all duty and '-"hen by \wilten agreement between the parties an on-the-

20

job paid meal period i~ agreed 10. The \\Tilten agreement shall state that the

21

employee may, in wriling, revoke (he agreement at any lime. If an employer falls

to provide an employee a meal period in accordance with the applicable provisions

22

of this order, the employer shaH pay the employee one (1) hour of pay at the

omployee's regular rate of compensation for each workday that the meal period i~

23

not provided. In all places of employment where employees are required to eat on

the premises, a suilable plaec for that purpose shall be designated. 24

52. Section (2 of Wage Order No. 7 provides (and at all times relevant hereto 25

provided) in relevant part that: 26

27 Every employer shall authon?c and peml;t all employees to take rest periods,

28

which insofar as practicable shall be in the middle of each work period. The

1-------~'~""=,cA~MENoUc,cUc,c.,c.Ac,c,cAcN-=1D2~-'O;"",,C,"~n"V",CiACTIONCOMPI.AINT-----

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page13 of 20

authorized rest period time shall be based on the total hours worked daily at the

rate of ten (10) minutes net rc~llime per four (4) hours or major fraction thereof.

2

However, a rest period need not be authorized lOT employees whose lotal daily work time is less than three ~nd one-half (3 Ill) hours. Authori"ed rest period time

3

shall he counted as hOllrs worked for which there shall be no deduction from

wageR. If an employer fails to provide an employee a re~t period in accordance

4

with the applicable provisions of this order, the employer shall pay the employee

nne (\) hour of pay at the employee's regular rate of compensation for each

5

workday that the rest period is not provided.

6

53. California Labor Code section 226.7 prohibits any employer Cmm requiring any

7 employee to work during any meal or rest period mandated by an applicable Iwe wage order,

8 and provides that an employer that fails to provide an employee with a required rest break: or meal

9 period shall pay that employee one additional hour of pay at the employee's regular rate 0

10 compensation for each work day thaI the employer does not provide a compliant meal or rest

II period.

12

54. Defendants failed to provide Plaintiff Pearson and California Class members with

13 meal periods as required by law, and failed to authori7e and pernlit the Plaintiff and Class

14 members to take rest periods a~ required by law. Plaintiff and the CI!lSS member~ are therefore

15 entitled to payment of the meal and rest period premiums as provided by law.

SIXTH CLAIM FOR RELIF.F

17

Unfair Practice nnder the Unfair Competition Act

18

(On Bchalf of the California Plaintiff and the California Class)

19

55. Plaintiff Pearson, on behalf of herself and the California Class, aJlegcs and

20 incorporates hy reference the alkgations in the preccding paragraphs.

21

56. Section 17200 of the California Business and Profcssinns Code _ California's

22 Unfair Competition Law - prohihil~ unfair competitioJi by prohibiting, illter alia, any unlawful

23 or unfair business acts or practices. The foregoing conduct by Defendants, as alleged, constitutes

24 unlawful busiucss actions and pract!ces in violation ofSection 17200, et seq.

25

57. Pursuant to Business and Professions Code § 17200 e( seq., Plaintiff Pearson and

26 the California Class members arc entilled to rc~titution of the overtime earnings, vacation time,

27 and other unpaid wages and premiums alleged herein that Del'mdants have improperly withheld

-13-
FIRST AMENDED CLASS ANDCOLLECTlVLACTION COMPLAINT

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page14 of 20

I and retained during a period thai conll1lcntt~ four years prior 10 the filing of this action, a

2 pemlunent injunction requiring Defendants to pay overtime and meal/rest premiums to all

3 lVorker~ as defmcd herein, in California, an award of attom~ys' fees pursuant 10 Code of Civil

4 Procedure 8ectioll 1021.5, ami other applicable law, and costs.

5

SEVENTH CLAIM FOR RELIEF

6

Hreach nfOral and Written, Express and Implied Contract

, 7

(On Behalf of the Calirornia Plaintiff and the CalifofJliu Class) 58. PlaintilfPearsol1, on behalf ofhersclfand the Ca1ifomia CJas~, alleges and

9 incorporates by reference the allegation~ in the preceding paragraphs.

10

59. Plaintiff Pearson and the California Class members were promised as a condition

11 oflhei! employment and in consideration for their labor that they would accrue vacation hased on

12 their number of hours worked.

13

60. In violation of this contract, which was oral and written, express and implied,

14 Defendants have not paid the California Plaintiffand the California Class vacation time for their

15 overtime hours worked.

16

61. Plaintiff Pearson and the California Class members are entitled to payment or

t7 crediting ofthe missing vacation time, plus interest, and any other relief available under the

18 eommonlaw of contracts, in an amonnt to be determined at trial.

t9

EIGH11I CLAIM FOR RELIEF

20 Failure to Pay Overtime Compensati(}n in Violatiun of New York Law, on Behalf of New

21

York Nailll'il Plaintiff and the New York Class

22

(On Behalf of the New York Plaintiff and New York Class)

23

62. Plaintiff Newsham, on behalf of himself and the New York Cluss, alleges and

24 incorporates by reference the allegations in the preceding p;!ragraph~.

25

63. At ,,11 times relevant to this action, the New York Named Plaintiff and the Ncw

26 York Rule 23 Class were cmployed by Detendants within the meaning orNew York Labor Law,
27 Article 19.
2R

-14-
1 - - - - ----IC."RST" MENDED Cl'A"'""A'NhlCD"U,,,,,C'"O""I",,,CA"C"'nON COMPlAl'"""c- - - - -

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page15 of 20

64. Oy the course or conduct set forlh above, Defendants have violated lhe New york

2 labor Law Article 19, §§ 650 et seq., and the supporting New York Stale Department of labor 3 Regulations, 12 N.Y.C.R.R. Part 142 (''New York I.aoof Law").

4

65. New York Labor Law requires employers, such as Defendants, to pay overtime

5 compensation \0 aU non-excmpl employees. The New York Labor Law also requires an employer
6 tu pay employees for all hours worked allhe agreed upon mte of pay.
7 66. Defendant:; have had a policy and practice of failing and refusing to pay proper
8
9 overtime pay to the New York Named Plaintiff and 10 the New York Rule 23 ClatlS for their hours

10 worked.

11

67. As II result of Defendants' failure to pay wages earned and due, and lheirdecision

12 to withhuld wages earned and due to the New York Named Plainliffamlthe New York Rule 23
13 Class, Defendants have violated and continues to violate the New York Labor Law. 14
68. The New York Named Plaintiff, on behalf of himself and the New York Rule 23 15
Class, seeks the amount of the IIIlderpayments based on DeFendants' Failure to pay one and one 16 17 halftimes the regular nile of pay for work perfOffiled in excess of forty per week, as provided by
18 the New York I.ubor Law, and such other legal and equitable relief from Defendants' IIIllawful

19 and willfnl conduct as the Court deems jusl and proper. The New York Named Plaintiff does not
20 seek liquidated damages on behalf of the New York Rule 23 Clas.~.
21 69. The New York Numed Plaintiff, on behalf ofhimsclfund the New York Rule 23
22 Class, seeks recovery of allollleys' fees and costs to be paid by Defendants as provided by the
23
24 New York l.abor Law.

25

NINTH CLAIM I<'OR RELIEF

26

Breach of Oral and 'Vritten, Express and Implied Contract

27

(On H~half ofthe New York Plaintiff and the New York Class)

28 -15-
- - - - I FIRST ....MENDEl.l CL....SS ....ND COI.l.ECTlVE ....CTlON CUMPLAIN'""'~--

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page16 of 20

I

70. PlainliffNcwsham, on bchalfofhimselfulld the New York Class, alleges and

2 incorporates by reference the allegations in the preceding paragraphs.

3

71. PlaintiffNewsham and the New York Class members were promised as a

4 condition of their employment and in consideration for their labor that they would accrue

5 vacation based on their number ofhours wOIked.

6

72. In violation nflhis contract, which was oral and written, express and implied,

7 Defendants have not paid lh", New York Plaitllilfand the New York Class vacation time for their

8 overtime hours worked.

9

73. PlailllifrNewsham and the New York Class members are entitled to payment or

10 crediting orlhe missing vacation time, plus interest, and any other relief available under the

II common law of contmcts, in an amount 10 be determined at trial.

12

TF.NTH CLAIM FOR RELIEF

13

Retaliation for Filing a New York Stale Wage Complaint

14

(On Behalf of Dennis Newsham)

15

74. Plaintiff Newsham allegcs and incorporates by rcferencc the allegations in the

16 preceding paragraphs.

17

75. Undcr New York Labor Lilw §215, "[n]o employer...shal1 discharge, penalize, or

18 in any other manner discriminate against any employee beeame such employee has made a

19 complaint to his employcr...."

20

76. On MaTch 24, 2009, PiaintiffNewsham engaged ill protected adivity nnder New

21 York's Lahor Lilws by fIling this lawsnit.

22

77. less than two months after filing this suit stating that his position was

23 miscla~sified as exempt frum overtime, Plaintiff Newsham was notified by Defendants (his

24 employers) that Defendants are rcclassifYing his position as non-exempt from ovcrtime (as sought

25 in this lawsnit), but in the process, reducing his regular rate of pay from $37.1274fhour to

26 S31.27fhour.

27

78. Plaintirr Newsham's pay cui is an adverse employment action prohibited by New

2l! York Labor Law §215. -16-
FmSI" AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page17 of 20

79. Plaintiff Newsham'$ rcclas.<ification, resulting in the pay cut, is a direct and

2 proximate result of his prior protected activity.

3

80. As a result of this retaliation, Plaintift'Nc'....sham has suffered mental and

4 emotional distress.

5

81. As a result of the retaliation, Plaintiff Newsham i~ and will continue 10 be entitled

G to backpay, compensatory and punitive damages, along with inkrest, attorneys' fees, and all other

7 relief available Imdcr New York Labor Law §215, in un amount to be determined at trial.

8

EI,EVENTH CLAIM FOR RF,LlEF

9

Retaliation for Hling a .Fair Labor Standards Act Complaint

10

(011 Behalr of Dennis Newsham)

11

82. PlaintiITNcwsham al!cges and incorporales by reference the allegations in the

12 preceding panlgraphs.

13

83. The FLSA, 29 U.S.C. §215(a)(3), makes it unlawful:

14 to di~charge or in any other manner discriminate against any employee hecause

15

such employee has filed any complaint or instituted or caused to he instituted any

proceeding under or related to this chapter, or has testified or is about to testify to

16

in any such proceeding, or has served or is about to servo on an industry

17

oonunittcc.

18 84. lhe FLSA's anli-retaliation provision encourages reports of illegal activity,
19 protecting any employ~e who protests about the failure to pay overtime wages.
20

21

85. Because Plaintirr Dennis Newsham tiled a lawsuit complaining of wage payment

22 and overtime violations, and therefore, engaged in protected actidty under the i'LSA, and was

23 retaliated against with a pay cut, he is entitled to relief including but not limited to reimbursement

24 of lost wages and benefits and interest thereon, damages, Jnlymenl of reasonable attomey's f~es,

25 311d the posting of notices to employees.
26

27

PRAYRR Hm RELIEF

28
I----~=.~= =~-1_7-_==.==.== _____ f1RSr AMENDEI) CLASS AND COI.I.ECTtVE ACTION COMPI.AINT

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page18 of 20

1

8G. WIIEREFORE, Plaintiffs, On behalf of themselves and aU members of the

2 Co!1ective and State Classes, pmy IOf relief as [ollov"s:

3

A. That the Court determine Ihal this action may proceed as a class action

4

under Rule 23(b)(l) and (3) of the Federal Rules D[Civil Procedure;

5

That Defendants are found to have violaled the overtime, mcaJlrest period,

6

itemized wage statementftime records, and failure to timely pay wages

7

penalty provisions of the state wage laws cited above as to the respective

8

Stale Classes,

9

c.

ThaI Defcndanls arc found 10 have violated the overtime provisions orthe

10

Federal Fair Labor Standards Act as to P1aillliff.~ <Iud the Collective Class;

11

D. That Defendants arc tbund to have violated the FLSA by failing to

12

maintain accurate lime records of all the honrs worked by Plaintiffs and

13

the CoHective Class;

14

E.

That Defendants are found to have rctaliated against Demus N~wsham for

15

having engag~d in protected activity under New York and Federal

16

"age/hour laws, causing him \\llIge loss, and emotional and mental

17

distress, along with other damages;

18

E.

That Defendants' violations as described above arc found to be willful;

19

G. An al'.'lIfd to Plaintiffs and the Classes for the amount of unpaid wages

20

owed, liquidllted damages and penaltie~ where provided by stale and

21

federal law, and interest thereon, subject 10 proofal trial;

22

H.

That Der~ndant~ be ordered and enjoined to pay restitution to Plaintiffs

23

and the Classes due to Defendants' unlawful activities, pursuant to

24

California and New York state laws cited above;

25

I.

That Defendants be required to compensate Plaintiffs and the State

26

Classes tor vacation time accrued pursuant to the contract and implied

27

contract, based npon actual hours worked, inc1udingovertime hours;

28

J.

That Defendants are required to pay PlaintitT Newsham backpay with

-18-

FlIlliT AMENDED crASS ANI) COLLEC1!VE ACTiON COMPLAINT

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page19 of 20

interest and punitive damages for his retaliatory pay Cllt, among other

2

relief;

3

K.

That Defelldant~ further be enjoined to cease and desist from unlawful

4

activities in violation ofslate laws cited above;

5

L.

That the Court grant declaratory relief slating that Defendants' scheme is

6

unlav"ful;

7

M. For an award of reasonable attorneys' fees and CO~ls pursuant to 29 U.S.C.

"

section 216 andIor othcrapplicab1e state laws; and

9

N.

For such other and further relief, in law or equity, as this Court may deem

10

appropriate ami just.

11

DF;MANIl FOR ,flJRYTRIAL

12

87. Pursuant to Rule 38(b) of (he Federal Rules of Civil Procedure, Plaintiff.~,

13 individually and on bchalfof all olhers similarly situated, demand 1\ trial by jury.

14

15 Dated: May 29, 2009

16 By:
17

18

19

20

21
22

23

24

2S

26

27

28 -\9-
FIRST AMENDE!) CU\SS AN[)COLl.ECTlVE ACTION COMPLAINT

Case3:09-cv-01263-JSW Document14 Filed05/29/09 Page20 of 20

CERTIFICATE OF SERVICE

2

Pearson, et al. v. Sarnsonite Company Stores, Inc., et a!.

3 On May 29, 2009, I caused the following dOCllment(s):

4

FIRST AMENDED COMPLAINT FOR DAMAGES, RESTrIUTlON, AND

rNJUNCT1VE RF.UEF

5

(0 be served via email to the following:
G

7 Samsonitc Company Slores, Inc., and SamsoniteCorpomtion

8 clo Daniel Lee Wilson, Elser, Moskowil~, Edelman & Dicker, r.LP
9 daniel. 1ee@1\11sonelser.com
~d
10 c/o Martin K. Deniston

II

Wilson, Elser, Moskowitz, Edelman & Dicker, ILP Martin. neniston@wjlsoncl~er.com

12
J hereby certify under the penalty of perjury ofthe laws of the United States of America, pursuant 13 to 28 U.R.c. § 1746, that the foregoing is true amI correct.

14 Executed On: May 29, 2009
15 16
17
18
19

BRYAN SCHWARTZ LAW
Is/Bryan J. Schwartz
Bryan J. Schwarl~. eCA Bar 209903) 180 GralldAvenuc, Ste. 1550 Oakland, CII!ifomia 94612 Telephone (510) 444-9300 ATroRNEY FOR PLAINTIFF

20

21

22

2J

24

25
26
27
28

- - - - - - - - c CERTIifICC ATE OF SiER= VICE - - - - - - - -

 
 Case3:09-cv-01263-JSW Document58 Filed12/17/09 Page2 of 12

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 ROSALIE PEARSON and DENNIS

) Case No. CV 09-01263 JSW

NEWSHAM, individually, on behalf of others )

12 similarly situated, and on behalf of the general ) NOTICE OF SETTLEMENT OF CLASS

public,

) AND COLLECTIVE ACTION

13 Plaintiff(s),

) ) Judge: Hon. Jeffrey S. White

14 v.

) Courtroom: 11, 19th Floor )

15 SAMSONITE COMPANY STORES, INC.,

) Date Action Filed: March 24, 2009 )

16 SAMSONITE CORPORATION, and DOES 1 – )

50, inclusive,

)

17

)

Defendant(s).

)

18

19

IF YOU ARE RECEIVING THIS NOTICE, THEN IT WILL LIKELY AFFECT

20

YOUR RIGHT TO BE COMPENSATED. PLEASE REVIEW CAREFULLY.

21

22

23

24

25

26

27

28

- 1 -

NOTICE OF SETTLEMENT OF

CLASS AND COLLECTIVE ACTION,

3:09-cv-1263 JSW

Case3:09-cv-01263-JSW Document58 Filed12/17/09 Page3 of 12

1 PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS WILL BE AFFECTED BY PROCEEDINGS IN THIS ACTION.
2 YOU MAY BE EN TITLED TO RECEIVE A PAYMENT PURSUANT TO THE
3 PROPOSED SETTLEMENT DESCRIBED HEREIN, BUT ONLY IF YOU RETURN THE ENCLOSED OPT-IN/CLAIM FORM POSTMARKED BY [90 days after notice mailing to
4 class by administrator].

5 YOU MAY CHOOSE TO OPT-OUT OF THIS PROPOSED SETTLEMENT, BUT, IF YOU WORKED FOR SAMSONITE IN NEW YORK OR CALIFORNIA, YOU MUST DO
6 SO WITH A LETTER FOLLOWING THE INSTRUCTIONS HEREIN, POSTMARKED BY [90 days after notice mailing to class by administrator].
7

8

The purpose of this notice is to inform you of a pending class action lawsuit brought

9 against Samsonite Company Stores, Inc., and Samsonite Corporation ("Samsonite" or
10 “Defendants”). You are receiving this Notice and Claim Form because you have been
11 identified as a member or potential member of the class certified by the Court that consists
12 of current and former employees who worked for Defendants during the relevant period as Store
13
14 Managers.

15

This notice summarizes your rights and obligations as a potential class member in

16 the certified class. Please read carefully, as your rights may be affected by the disposition of
17 the lawsuit. 18
I. Description of the Lawsuit 19
This action includes the named plaintiffs and all other similarly-situated individuals who 20 21 worked as Store Managers for Samsonite. The claims asserted on behalf of the class allege that
22 the Samsonite violated Federal law, and state law in California and New York, by, among other

23 things, improper classification of employees as exempt from overtime laws, failure to provide

24 overtime wages when due, failure to provide timely or accurate paychecks or statements of

25 earning or compensable time worked, failure to provide meal or rest periods or payments in lieu

26 thereof, failure to make or keep records of time worked, failure to pay an appropriate amount of
27
vacation pay, and unfair business practices arising from these alleged failures. As a result of these 28

- 2 -

NOTICE OF SETTLEMENT OF

CLASS AND COLLECTIVE ACTION, 3:09-

cv-1263 JSW

Case3:09-cv-01263-JSW Document58 Filed12/17/09 Page4 of 12

1 alleged failures, the case seeks relief for members of the class for time and one-half pay for

2 identified employee for hours worked in excess of forty (40) hours per week (or in excess of eight

3 (8) hours a day in California) and various other remedies under federal or state law for unpaid
4 wages, premium pay, itemized wage statement penalties, and liquidated damages that are alleged
5
to arise from that alleged conduct, as well as attorney fees and costs. 6

7

The Defendants deny all allegations of wrongdoing, fault, liability or damage to the

8 Plaintiffs or the class, denies that they engaged in any wrongdoing, deny that they committed any

9 violation of law, deny that they acted improperly in any way and believe that they acted properly

10 at all times. The Defendants recognize, however, the uncertainty and risk inherent in any
11 litigation, and the difficulties and substantial expense and length of time necessary to defend this
12 action through trial and any appeal. To eliminate the burden and expense of further litigation and
13 14 the risk of trial, the Defendants wish to settle the litigation against them on the terms and
15 conditions stated in the Stipulation of Settlement, and to put the claims alleged in this case to rest

16 finally and forever.

17

Plaintiffs' Counsel completed an extensive investigation relating to the claims and the

18 underlying events and transactions alleged in the Complaint. Plaintiffs' Counsel analyzed the

19 evidence adduced, and has researched the applicable law with respect to the claims against the
20
Defendants and the potential defenses thereto. 21

22

Both Defendants and Plaintiffs’ Counsel are aware that many Plaintiffs’ rights are affected

23 by a settlement between Samsonite and the Department of Labor in early 2007. The parties agree

24 that the current settlement is a reasonable result, in light of the settlement already made with the

25 Department of Labor.

26 II. Settlement

27 Plaintiffs' Counsel and Defendant have negotiated what they believe to be a fair settlement
28

- 3 -

NOTICE OF SETTLEMENT OF

CLASS AND COLLECTIVE ACTION, 3:09-

cv-1263 JSW

Case3:09-cv-01263-JSW Document58 Filed12/17/09 Page5 of 12

1 for all Plaintiffs and class members in this lawsuit. Although the Court has given the class and

2 settlement preliminary approval, the class, settlement, funding of the settlement, and the

3 settlement offers referred to in this notice are contingent upon t he Court's approval of the class

4 and settlement becoming a final judgment.
5

6

III. Calculation of Settlement Share

7

Samsonite has already paid some potential class members approximately $116,000. In

8 addition, a lump sum of $850,000 will be paid on behalf of Samsonite to settle this matter upon

9 final Court approval of the settlement. Subject to Court approval, 25% attorneys' fees, costs, and

10 payments of $5,000 each to the two Representative Plaintiffs will be made from these payments.
11 The remaining funds, estimated to be approximately $560,000, will be used to compensate former
12 employees participating in the settlement. Shares of the settlement will then be allocated in the
13
14 following manner, discounted as described in Section IV, below:

15

A. If You Worked For Samsonite in Any State Other Than California or New York

16

If you are a Plaintiff who worked for Samsonite outside of California and New York, as to

17 your potential overtime claims: 18

19 (i) You will be offered additional compensation at 0.5 t imes your Regular Hourly Rate (an
20 average hourly pay rate, including commission) for 5 hour s a week for each week you were a
21 22 salaried (exempt) Store Manager since September 2, 2006, up to the date you were reclassified as
23 an hourly (non-exempt) employee.

24

25 (ii) You will be offered payment in lieu of liquidated damages equal to the amount you are paid
26 concerning overtime claims.
27

28

- 4 -

NOTICE OF SETTLEMENT OF

CLASS AND COLLECTIVE ACTION, 3:09-

cv-1263 JSW

Case3:09-cv-01263-JSW Document58 Filed12/17/09 Page6 of 12

1 (iii) You will be offered 10% simple, annual interest on all of your overtime claims.

2

3 (iv) If your total allocation based on this formula and the discounts described below equals less

4 than $500, then you will receive the $500 minimum allocation.
5

6

B. If You Worked for Samsonite in California or New York

7

The States of California and New York have employment, wage/hour laws more

8 protective in some ways than the laws of other states, and the Representative Plaintiffs were able

9 to bring state claims in their own states. As such, California and New York Store Managers have

10 the opportunity for additional recovery, as follows: 11

12 (i) For Store Managers in California, as to your potential overtime claims, you will be offered
13 14 compensation at 1.5 times your Regular Hourly Rate for 5 hours a week for each week in which
15 you were employed at Samsonite as an exempt (salaried) Store Manager after March 24, 2005.

16

17 (ii) For Store Managers in New York, as to your potential overtime claims, you will be offered
18 compensation at 1.5 times your Regular Hourly Rate for 5 hours a week for each week in which 19
you were employed at Samsonite as an exempt (salaried) Store Manager after March 24, 2003. 20

21 22 (iii) If you are a Plaintiff in California, as to your potential meal/rest period claims, you will be 23 offered compensation at your Regular Hourly Rate for 3 hour s a week for each week in which

24 you were employed at Samsonite as a salaried (exempt) Store Manager since March 24, 2005, up

25 to the date you were reclassified as an hourly (non-exempt) employee. 26

27 (iv) If you are a Plaintiff in California, as to your potential itemized wage statement claims, you
28

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NOTICE OF SETTLEMENT OF

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Case3:09-cv-01263-JSW Document58 Filed12/17/09 Page7 of 12

1 will be offered $50 f or your first two-week pay period worked as a s alaried (exempt) Store

2 Manager after March 24, 2005, and $100 for each additional two-week pay period, up to the date
3 you were reclassified as an hourly (non-exempt) employee.
4

5 (v) For Store Managers in California, as to your potential vacation pay claims, you will be offered
6
7 additional compensation for vacation hours at a rate of 0.0385 ( Samsonite’s rate of vacation

8 accrual per hour worked) times 5 hours per week that you worked since March 24, 2005, times

9 your Regular Hourly Rate, for each week that you were classified as salaried (exempt).

10

11 (vi) For Store Managers in New York, as to your potential vacation pay claims, you will be
12 offered additional compensation for vacation hours at a rate of 0.0385 (Samsonite’s rate of
13 14 vacation accrual per hour worked) times 5 hours per week that you worked since March 24, 2003,
15 times your Regular Hourly Rate, for each week that you were classified as salaried (exempt).

16

17 (vii) All California and New York Plaintiffs will also be offered 10% simple, annual interest on
18 all of their overtime, vacation pay, and, in California only, on their meal/rest period claims. 19

20 (viii) If your total allocation based on this formula and the discounts described below equals less
21
22 than $500, then you will receive the $500 minimum allocation.

23

24

C. Discount For Attorneys’ Fees, Litigation Risk, and Prior Settlement Payment

25

Because this matter is settling prior to adjudication, and the outcome of the matter is

26 uncertain, your minimum recovery in this matter will be discounted 30% from the amount which

27 would be calculated based on the formula described above. Additionally, your allocation is based
28

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Case3:09-cv-01263-JSW Document58 Filed12/17/09 Page8 of 12

1 upon a deduction of 25% to pay for Class Counsel’s attorneys’ fees in this matter, in which Class

2 Counsel assumed all of the risk of litigation and provided representation to Plaintiffs and the
3 Class on a contingency basis. Finally, if you received payment pursuant to a private agreement
4 you made with Samsonite regarding this lawsuit earlier this year, the amount you were already
5 paid will be deducted from your total allocation, to avoid double-compensation.
6

7

8

IV. Class Representative Enhancements

9

If the Court approves such payments, each of the two Class Representatives, Rosalie

10 Pearson and Dennis Newsham, will receive $5,000. This payment is made because the two Class
11 Representatives provided many hours of service to the class by helping Class Counsel formulate
12 claims, by providing documents, and by participating in a deposition or in mediation, all to
13 14 support the Plaintiffs’ claims that Samsonite did not pay overtime to Store Managers in violation
15 of the law.

16

V. Next Steps and Changes of Address

17

You have several options. In order to protect your rights, it is very important that you read

18 this section carefully. If you do not hing, you may release your right to sue Samsonite for the
19 claims asserted in this matter, if you worked for Samsonite in California or New York. If you
20 wish to receive any payment in this case, you must return the enclosed Opt-In/Claim Form
21
22 postmarked no later than [90 days after notice mailing to class by administrator]. If you

23 worked for Samsonite in California or New York, and wish to opt-out or object to the

24 Settlement, you must do following the instructions provided below, and postmarked by no

25 later than [90 days after notice mailing to class by administrator].

26 A. Opting In/Asserting a Claim

27 Along with this Notice of Settlement of Class Action, you are receiving a Settlement Offer
28

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cv-1263 JSW

Case3:09-cv-01263-JSW Document58 Filed12/17/09 Page9 of 12

1 and Release, with an Opt-In/Claim Form. You may choose to accept the offer and release your

2 claims. The offer and release are subject to final Court approval of the class and settlement. The
3 fees of counsel for Plaintiffs, the class representatives’ payments, the payments to the class are to
4 be paid from the settlement amount.
5 To opt-in/assert a cl aim and receive a payment if this settlement receives final Court
6
7 approval, send in your Opt-In/Claim Form to the following address by U.S. Mail postmarked no

8 later than [90 days after notice mailing to class by administrator]:

9

[settlement administrator contact information]

10

B. Opting-Out/Objecting/Commenting on Settlement

11 1. Opting-Out
12 If you worked for Samsonite in any state other than New York or California, and you
13

14 object or otherwise do not wish to participate in the Settlement, you do not need to take any

15 action.

16

If you worked for Samsonite in New York or California, and do not wish to participate

17 in the Settlement, you must send an opt-out letter. To be valid, you must opt-out in a letter stating:
18 “I wish to opt-out of the settlement given preliminary approval in the matter Pearson, et al. v. 19
Samsonite Company Stores, Inc., et al., CV 09-01263 JSW, with the understanding that I may not 20
hold this Court, the parties, or the parties’ counsel responsible for any consequence of my 21 22 decision to opt-out of this matter.” The letter must be signed by you under penalty of perjury
23 (with a statement, “I certify under the penalty of perjury under the laws of the United States that

24 the foregoing is true and correct”), accompanied by a photocopy of your driver’s license or other

25 form of government issued picture identification (e.g., passport), and returned to: 26

27

[settlement administrator contact information]

28

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Case3:09-cv-01263-JSW Document58 Filed12/17/09 Page10 of 12

1

The opt-out letter must be postmarked no later than [90 days after notice mailing to class

2 by administrator]. If the opt-out letter is sent from within the United States it mu st be sent
3 through the United States Postal Service. A Class Member who worked for Samsonite in
4 California or New York who fails to mail an opt-out letter in the manner and by the deadline
5 specified above will be bound by all terms and conditions of the Settlement, if the Settlement is
6
7 approved by the Court, and the Judgment, regardless of whether he or she has objected to the

8 Settlement or received any share of the Settlement proceeds.

9

Any person who submits a complete and timely opt-out letter will, upon receipt, no longer

10 be a member of the Class, will be barred from participating in any portion of the Settlement, and

11 will receive no money from the Settlement.
12 2. Objecting or Commenting Favorably
13

14

You may object to the terms of the Settlement before final approval, either by filing a

15 written objection or filing a notice of your intent to appear and object at the final approval

16 hearing. However, if the Court rejects your objection, you still will be bound by the terms of the

17 Settlement unless you also submit an opt-out letter. To object, you must send a written notice of
18 objection or a written notice of your intent to appear and object at the final approval hearing to 19
the Court and to all counsel. The Court’s address and Counsel’s addresses are shown below. 20
Any written objections and/or notice of your intent to appear at the final approval hearing 21 22 must state each specific reason for your objection and any legal support for each objection. Your
23 written objection and/or notice of your intent to appear at the final approval hearing must also

24 state your full name, address, date of birth, and the dates of your employment at Samsonite. To be

25 valid and effective, the Court, Class Counsel, and Counsel for Samsonite must receive any written

26 objections and/or notices of intent to appear at the hearing, postmarked not later than [90 days

27 after notice mailing to class by administrator]. A Class Member who fails to timely file and
28

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NOTICE OF SETTLEMENT OF

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Case3:09-cv-01263-JSW Document58 Filed12/17/09 Page11 of 12

1 serve a written objection in the manner described above by the specified deadline will be deemed

2 to have waived any objections and will be foreclosed from making any objection (whether by
3 appeal or otherwise) to the Settlement and will not be allowed to appear before the Court at the
4 final approval hearing.
5 On the other hand, if you wish, you may comment in favor of the Settlement postmarked
6
7 not later than [90 days after notice mailing to class by administrator], by submitting a written

8 notice of your comments in favor of the Settlement, which will be relayed to the Court at or

9 before the final approval hearing.

10

Your objections or favorable comments must include your full name, address, date of

11 birth, and dates of your employment at Samsonite, and the title of this case: Pearson, et al. v.
12 Samsonite Company Stores, Inc., et al., Case No. CV 09-01263 JSW.
13

14

Send your objections/notice or favorable comments to THE COURT AS FOLLOWS:

15 Office of the Clerk United States District Court, Northern District of California
16 450 Golden Gate Ave. San Francisco, CA 94102
17
18 DO NOT TELEPHONE THE COURT.

19 A COPY OF YOUR OBJECTIONS/NOTICE OR FAVORABLE COMMENTS MUST ALSO BE SENT TO CLASS COUNSEL AS FOLLOWS:
20

Bryan J. Schwartz 21 Bryan Schwartz Law

22

180 Grand Avenue, Suite 1550 Oakland, CA 94612

23 A COPY OF YOUR NOTICE MUST ALSO BE SENT TO COUNSEL FOR SAMSONITE AS
24 FOLLOWS:

25 Martin Deniston 26 Wilson Elser Moskowitz Edelman & Dicker LLP
555 S. Flower Street - Suite 2900 27 Los Angeles, CA 90071-2407

28

C. Change of Address

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Case3:09-cv-01263-JSW Document58 Filed12/17/09 Page12 of 12

1

If you have any change of address after receiving this notice, you are required to

2 notify the Settlement Administrator at the following address, or you may not receive any
3 payment in this matter: [Administrator’s address] Neither the Court nor the parties will be
4 responsible for your failure to provide adequate notice of any change in address.
5

6

VI. Examination of Papers

7 All of the above descriptions of allegations, responses, the settlement and other matters in this
8 lawsuit are only summaries and do not fully describe all aspects of the case or settlement. The
9
10 pleadings and other papers filed in this action are public records and are available for inspection

11 during regular business hours at the Clerk's Office, United States District Court for the Northern

12 District of California, at: U.S. Courthouse, Clerk's Office, 450 Golden Gate Avenue, 16th Floor,

13 San Francisco, California 94102.

14

VII. Questions

15 If you have any further questions with respect to this action or about this Notice, you may
16 direct such questions to counsel for the Plaintiffs, Bryan Schwartz, Bryan Schwartz Law, 180
17

18 Grand Avenue, Suite 1550, O akland, California, 94612, (510) 444-9300, or email

19 Hillary@BryanSchwartzLaw.com. YOU SHOULD NOT CONTACT THE COURT WITH

20 QUESTIONS.

21

VIII. Conclusion

22

23

THIS NOTICE AND ITS CONTENT HAS BEEN AUTHORIZED BY THE

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF

24 CALIFORNIA, THE HONORABLE JEFFREY S. WHITE, UNITED STATES DISTRICT

COURT JUDGE. 25

26 Dated: December 18, 2009

/s/ ______________________________

27

The Honorable Jeffrey S. White

United States District Judge

28

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NOTICE OF SETTLEMENT OF CLASS AND COLLECTIVE ACTION, 3:09-
cv-1263 JSW

 
 Case3:09-cv-01263-JSW Document40 Filed10/22/09 Page1 of 1

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UNITED STATES DISTRICT COURT

8

Northern District of California

9 Pearson,

No. C 09-01263 JSW MED

10

Pia intiff( s),

11

v.

Certification of ADR Se,sion

12 Samsonite Company Stores, Inc.,

13

Defendant s .

14 Instructions: The neutral shall submit this Certification to the ADR unit within 10 days after

15 completing an ADR Session. The ADR unit will file-stamp the Certification and place it in the court

16 file. 17 1. 18

I hereby certify that the parties in this matter held a IX] Mediation or D ENE
session on (date) October 14, 2009

19 2. Did the case settle?

D fully

D partially Xl no

20 3. If the case did not settle fully, is any follow-up contemplated?

21 .

. ~another session scheduled for (date) November 2. 2009

22

D phone discussions expected by (date) _ _-..--_ _ _ _ _ __

23

D no

24 4. IS THIS ADR PROCESS COMPLETED?

DYES

UNO

25 26 Dated: 27 28

October 19, 2009

Allen Matkins Leek Gamble & Mallory LLP Three Embarcadero Center, 12th Floor San FranciSCO, CA 94111

Certification of ADR Session 09-01263 JSW

 
 Case3:09-cv-01263-JSW Document55 Filed12/10/09 Page1 of 1

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

Northern District of California

9 Pearson,

No. C 09-01263 JSW MED

10 1::
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19
20

Plaintiff(s),

Certification of ADR Session

v.

Samsonite Company Stores, Inc.,

Defendant s .

Instructions: The neutral shall submit this Certification to the ADR unit within 10 days after

completing an ADR Session. The ADR unit will file-stamp the Certffication and place it in the court

file .

1. I hereby certify that the parties in this matter held a .0' Mediation or 0 ENE

session on (date) _--=.I...:..LL.;2;;.{-1-/o=---.!.~_ _ _ __ ::.~~/~~

2. Did the case settle?

~ fully

0 partially 0 no ~ pt._I."

3.

f~' If the case did not settle fully, is any follow-up contemplated?

21

0 another session scheduled for (date) _ _ _ _ _ _ _ _ __

22

0 phone discussions expected by (date) _ _ _ _ _~_ _ __

23

0 no

24 4. IS THIS ADR PROCESS COMPLETED?

~YES

ONO

25 26 Dated:
27 28

, l{t%j

Allen Matkins Leck Gamble &Mallory
LLP Three Embarcadero Center, 12th Floor
San Francisco, CA 94111

Certification of ADR Session 09-01263 JSW

 
 1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9 PEARSON and DENNIS NEWSHAM, individually, on behalf of others similarly
10 situated, and on behalf of general public,

No. C 09-01263 JSW

United States District Court For the Northern District of California

11

Plaintiffs,

12 v.
13 SAMSONITE COMPANY STORES, INC., SAMSONITE CORPORATION, and DOES 1-
14 50, inclusive,

NOTICE OF TENTATIVE RULING AND QUESTIONS

15

Defendants.

/

16

17

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE

18 NOTICE OF THE FOLLOWING TENTATIVE RULING AND QUESTIONS FOR THE

19 HEARING SCHEDULED ON DECEMBER 18, 2009 AT 9:00 A.M.:

20

The Court has reviewed the parties’ papers and, thus, does not wish to hear the parties

21 reargue matters addressed in those pleadings. If the parties intend to rely on authorities not

22 cited in their briefs, they are ORDERED to notify the Court and opposing counsel of these

23 authorities reasonably in advance of the hearing and to make copies available at the hearing. If

24 the parties submit such additional authorities, they are ORDERED to submit the citations to the

25 authorities only, with reference to pin cites and without argument or additional briefing. Cf.

26 N.D. Civil Local Rule 7-3(d). The parties will be given the opportunity at oral argument to

27 explain their reliance on such authority. The Court suggests that associates or of counsel

28 attorneys who are working on this case be permitted to address some or all of the Court’s

questions contained herein.

United States District Court For the Northern District of California

1

The Court tentatively DENIES WITHOUT PREJUDICE the joint motion for

2 preliminary approval of settlement.

3

The parties shall each have 15 minutes to address the following questions:

4 1. 5 6 7 8 9

The Court has concerns with the adequacy of the notice in light of the fact that the Plaintiffs seek certification of both a collective action under the Fair Labor Standards Act (“FLSA”) and a class action pursuant to Federal Rule of Civil Procedure 23 on their state wage and hour law claims. Under the FLSA, an employee who wishes to join a collective action must affirmatively opt in to the suit by filing a consent to sue with the district court. 29 U.S.C. § 216(b). In contrast, under Rule 23, a party who does not wish to be bound by the Court’s judgment must opt out of the proposed class by filing a request to be excluded. Fed. R. Civ. P. 23(c)(2). Although both types of claims may be maintained in the same action, the notice must be amended to advise the putative class of the need to affirmatively opt in to the FLSA class and to opt out of the state wage and hour class action.

10 2. 11 12

Whether to reward the named representatives for their efforts is within the Court’s discretion. See, e.g., Van Vranken v. Atlantic Richfield Co., 901 F. Supp. 294, 299 (N.D. Cal. 1995) (citations omitted). Although Plaintiffs argue in their brief that the incentive awards are justified, they submit no evidence from the named Plaintiffs to support this argument.

13 3. Lastly, the Court notes that the incentive award is not disclosed in the notice.

14 4. 15 16 17

Given the Court’s concerns as well as the parties’ efforts to complete this settlement in a timely fashion, how much time do the parties need to address these items and re-file a joint motion for preliminary approval of the settlement? The parties may submit a joint stipulation to vacate the hearing scheduled for tomorrow morning and re-file an amended motion taking into account the Court’s concerns or may appear as regularly scheduled on December 18, 2009 at 9:00 a.m. The parties should notify the Court of their intent by no later than 4:00 p.m. on Thursday, December 17, 2009.

18 IT IS SO ORDERED.
19

20 Dated: December 17, 2009
21
22

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

23

24

25

26

27

28

2

 
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Exhibit A: Current Representative and Opt-in Plaintiffs and Effective Dates of Opting In

Name Rosalie Pearson Dennis Newsham Patricia Shaker Roberta Conn Patrick Thornton Juan Gaviria Ana Contreras

Opt-In Date March 24, 2009 March 24, 2009 April 27, 2009 May 6, 2009 September 2, 2009 September 2, 2009 September 2, 2009

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page43 of 92
Exhibit B

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page44 of 92 Exhibit B: Class List

1. Abramo, Corrine 2. Ackerman, William 3. Aplin, Stacey 4. Bennett , Holly 5. Bottoni, Shanna 6. Brennan, Katherine 7. Campos, Blanca 8. Casper, Tami 9. Chewning, Brian 10. Chim, Khanh 11. Cole, John 12. Colondo, Anthony 13. Conn, Roberta 14. Contreras, Ana 15. Cummings, Cassandra 16. Dooley, Blair 17. Drew, Rhonda 18. Faulkner, Sherry 19. Foster, Audrey 20. Francois, Albert 21. Gambrell, Deborah 22. Gaviria, Juan 23. Gehring, Crystal 24. Gibbs, Daniel 25. Goulet, Joseph 26. Green, Kenneth 27. Hadden , Douglas 28. Hayward, Jennifer 29. Herbert , Lindsey 30. Hill, Masame 31. Howanstine, Tina 32. Kelley, Brian 33. Klussman, Kenneth 34. Labao, Steve 35. Land, Kevin 36. Ledogar, Christopher 37. Lee, Marshall 38. Leung , Chung 39. Lien, Tony 40. Madden, James 41. Maggio, Carol 42. Medel, Edward 43. Melendez, Rebecca 44. Merowitz, David 45. Murray, Christi 46. Newsham, Dennis

NY NJ CO CO CA MA TX CA DE CO NJ PA NV FL CA MA MD VA CA FL VA FL IN TN MI MI CA PA FL VA FL MI MO MA/RI CA NY HI NY CA CO NY FL FL MA NJ NY

47. Okuda, Edward 48. Olsen, Brandon 49. Ortiz, Steven 50. Otta-Storey, Kori 51. Ounjian, Berge 52. Patenaude, Edmond 53. Pearson, Rosalie 54. Pekul, Cassie 55. Pender, Leah 56. Perez, David 57. Perkins, Salien 58. Perrotta, Barbara 59. Petersburg, Derek 60. Petracich, Jason 61. Piccirilli, Joseph 62. Post, Stephen 63. Rencher-Federoff, Vickie 64. Ribeca, Armando 65. Ricci, Wendy 66. Safford, Stephen 67. Salituro, Erica 68. Santiago, Nelson 69. Schietekat, Francisco 70. Schwitters, Shane 71. Shaker, Patricia 72. Sheridan, John 73. Singh, Brian 74. Soerachman, Racharmawan 75. Spera, Rita 76. Spinelli , Jay 77. Staley, Mariah 78. Stence, Nicole 79. Taylor, Blake 80. Thornton, Patrick 81. Trainor, Alan 82. Vargas, Roy 83. Vierra, Albertnette 84. Vincent , Bobbie 85. Vuncannon, Tracy 86. Wagner , Cheryl 87. Wells, Lori 88. Wise, Luane 89. Wooten , Avery

NV CA CA NV MA ME CA CA CA CA LA IL VA MI NY UT NV/TX CA MA NY IL FL FL NV NY NJ FL PA MA NJ CA NH TX TX MA NY HI TX TX IL OR FL TX

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page45 of 92
Exhibit C
(To be provided per the timeline indicated in the Joint Stipulation of Settlement and Release Between Plaintiffs and Defendants)

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page46 of 92
Exhibit D
(Documents sought to be filed under seal, pursuant to L.R. 79-5(c))

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page47 of 92
Exhibit E

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page48 of 92

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

4 ROSALIE PEARSON and DENNIS

) Case No. CV 09-01263 JSW

NEWSHAM, individually, on behalf of others )

5 similarly situated, and on behalf of the general ) [proposed] ORDER GRANTING

public,

) PRELIMINARY APPROVAL OF

6

) SETTLEMENT AND GRANTING

Plaintiff(s),

) COLLECTIVE AND CLASS ACTION

7

) CERTIFICATION

v.

)

8

) Judge: Hon. Jeffrey S. White

SAMSONITE COMPANY STORES, INC., ) Courtroom: 11, 19th Floor

9 SAMSONITE CORPORATION, and DOES 1 – )

50, inclusive,

) Date Action Filed: March 24, 2009

10

)

Defendant(s).

)

11

12

[PROPOSED] ORDER

13

Having reviewed the parties’ “Joint Stipulation of Settlement and Release Between

14 Plaintiffs and Defendants,” and the Joint Motion for Preliminary Approval of same, and
15 determined on a preliminary basis that it represents a fair resolution of this case, and having
16 reviewed the proposed class to be certified as a collective action under the Fair Labor Standards
17 18 Act, 29 U.S.C. §216, and, for portions of the class in California and New York, according to the
19 applicable standards under Fed.R.Civ.P. 23, and in light of the relevant authority and the entire

20 record in this case, the Court hereby CERTIFIES THE CLASS SOUGHT FOR SETTLEMENT

21 PURPOSES, NAMES BRYAN SCHWARTZ LAW AS CLASS COUNSEL, and GRANTS

22 PRELIMINARY APPROVAL of the Joint Stipulation of Settlement and Release Between

23 Plaintiffs and Defendant.
24
25

So Ordered.

26

27

_____________________________ Jeffrey S. White

28

United States District Court

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page49 of 92
Exhibit F

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page50 of 92

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 ROSALIE PEARSON and DENNIS

) Case No. CV 09-01263 JSW

NEWSHAM, individually, on behalf of others )

12 similarly situated, and on behalf of the general ) NOTICE OF SETTLEMENT OF CLASS

public,

) AND COLLECTIVE ACTION

13 Plaintiff(s),

) ) Judge: Hon. Jeffrey S. White

14 v.

) Courtroom: 11, 19th Floor )

15 SAMSONITE COMPANY STORES, INC.,

) Date Action Filed: March 24, 2009 )

16 SAMSONITE CORPORATION, and DOES 1 – )

50, inclusive,

)

17

)

Defendant(s).

)

18

19

IF YOU ARE RECEIVING THIS NOTICE, THEN IT WILL LIKELY AFFECT

20

YOUR RIGHT TO BE COMPENSATED. PLEASE REVIEW CAREFULLY.

21

22

23

24

25

26

27

28

- 1 -

NOTICE OF SETTLEMENT OF

CLASS AND COLLECTIVE ACTION,

3:09-cv-1263 JSW

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page51 of 92

1 PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS WILL BE AFFECTED BY PROCEEDINGS IN THIS ACTION.
2 YOU MAY BE EN TITLED TO RECEIVE A PAYMENT PURSUANT TO THE
3 PROPOSED SETTLEMENT DESCRIBED HEREIN, BUT ONLY IF YOU RETURN THE ENCLOSED OPT-IN/CLAIM FORM BY [90 DAYS FROM MAILING].
4

5

The purpose of this notice is to inform you of a pending class action lawsuit brought

6 against Samsonite Company Stores, Inc., and Samsonite Corporation ("Samsonite" or
7 “Defendants”). You are receiving this Notice and Claim Form because you have been
8 identified as a member or potential member of the class certified by the Court that consists
9 of current and former employees who worked for Defendants during the relevant period as Store
10
11 Managers.

12

This notice summarizes your rights and obligations as a potential class member in

13 the certified class. Please read carefully, as your rights may be affected by the disposition of
14 the lawsuit. 15
I. Description of the Lawsuit 16
This action includes the named plaintiffs and all other similarly-situated individuals who 17 18 worked as Store Managers for Samsonite. The claims asserted on behalf of the class allege that
19 the Samsonite violated Federal law, and state law in California and New York, by, among other

20 things, improper classification of employees as exempt from overtime laws, failure to provide

21 overtime wages when due, failure to provide timely or accurate paychecks or statements of
22 earning or compensable time worked, failure to provide meal or rest periods or payments in lieu 23
thereof, failure to make or keep records of time worked, failure to pay an appropriate amount of 24
vacation pay, and unfair business practices arising from these alleged failures. As a result of these 25 26 alleged failures, the case seeks relief for members of the class for time and one-half pay for
27 identified employee for hours worked in excess of forty (40) hours per week (or in excess of eight

28 (8) hours a day in California) and various other remedies under federal or state law for unpaid

- 2 -

NOTICE OF SETTLEMENT OF

CLASS AND COLLECTIVE ACTION, 3:09-

cv-1263 JSW

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page52 of 92

1 wages, premium pay, itemized wage statement penalties, and liquidated damages that are alleged

2 to arise from that alleged conduct, as well as attorney fees and costs.
3 The Defendants deny all allegations of wrongdoing, fault, liability or damage to the
4 Plaintiffs or the class, denies that they engaged in any wrongdoing, deny that they committed any
5 violation of law, deny that they acted improperly in any way and believe that they acted properly
6
7 at all times. The Defendants recognize, however, the uncertainty and risk inherent in any

8 litigation, and the difficulties and substantial expense and length of time necessary to defend this

9 action through trial and any appeal. To eliminate the burden and expense of further litigation and

10 the risk of trial, the Defendants wish to settle the litigation against them on the terms and

11 conditions stated in the Stipulation of Settlement, and to put the claims alleged in this case to rest
12 finally and forever.
13

14

Plaintiffs' Counsel completed an extensive investigation relating to the claims and the

15 underlying events and transactions alleged in the Complaint. Plaintiffs' Counsel analyzed the

16 evidence adduced, and has researched the applicable law with respect to the claims against the

17 Defendants and the potential defenses thereto.

18

Both Defendants and Plaintiffs’ Counsel are aware that many Plaintiffs’ rights are affected

19 by a settlement between Samsonite and the Department of Labor in early 2007. The parties agree
20
that the current settlement is a reasonable result, in light of the settlement already made with the 21

22 Department of Labor.

23

II. Settlement

24

Plaintiffs' Counsel and Defendant have negotiated what they believe to be a fair settlement

25 for all Plaintiffs and class members in this lawsuit. Although the Court has given the class and

26 settlement preliminary approval, the class, settlement, funding of the settlement, and the

27 settlement offers referred to in this notice are contingent upon t he Court's approval of the class
28

- 3 -

NOTICE OF SETTLEMENT OF

CLASS AND COLLECTIVE ACTION, 3:09-

cv-1263 JSW

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page53 of 92

1 and settlement becoming a final judgment.

2

III. Calculation of Settlement Share

3 Samsonite has already paid some potential class members approximately $116,000. In
4 addition, a lump sum of $850,000 will be paid on behalf of Samsonite to settle this matter upon
5
final Court approval of the settlement. Subject to Court approval, 25% attorneys' fees, costs, and 6

7 payments to the Representative Plaintiffs will be made from these payments. The remaining

8 funds, estimated to be approximately $560,000, will be used to compensate former employees

9 participating in the settlement. Shares of the settlement will then be allocated in the following

10 manner, discounted as described in Section IV, below:
11 A. If You Worked For Samsonite in Any State Other Than California or New York
12 If you are a Plaintiff who worked for Samsonite outside of California and New York, as to
13
14 your potential overtime claims:

15

16 (i) You will be offered additional compensation at 0.5 t imes your Regular Hourly Rate (an

17 average hourly pay rate, including commission) for 5 hour s a week for each week you were a
18 salaried (exempt) Store Manager since September 2, 2006, up to the date you were reclassified as 19
an hourly (non-exempt) employee. 20

21 22 (ii) You will be offered payment in lieu of liquidated damages equal to the amount you are paid 23 concerning overtime claims.

24

25 (iii) You will be offered 10% simple, annual interest on all of your overtime claims. 26

27

28

- 4 -

NOTICE OF SETTLEMENT OF

CLASS AND COLLECTIVE ACTION, 3:09-

cv-1263 JSW

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page54 of 92

1 (iv) If your total allocation based on this formula and the discounts described below equals less

2 than $500, then you will receive the $500 minimum allocation.
3 B. If You Worked for Samsonite in California or New York
4 The States of California and New York have employment, wage/hour laws more
5 protective in some ways than the laws of other states, and the Representative Plaintiffs were able
6
7 to bring state claims in their own states. As such, California and New York Store Managers have

8 the opportunity for additional recovery, as follows:

9

10 (i) For Store Managers in California, as to your potential overtime claims, you will be offered
11 compensation at 1.5 times your Regular Hourly Rate for 5 hours a week for each week in which
12 you were employed at Samsonite as an exempt (salaried) Store Manager after March 24, 2005.
13

14 15 (ii) For Store Managers in New York, as to your potential overtime claims, you will be offered

16 compensation at 1.5 times your Regular Hourly Rate for 5 hours a week for each week in which

17 you were employed at Samsonite as an exempt (salaried) Store Manager after March 24, 2003. 18

19 (iii) If you are a Plaintiff in California, as to your potential meal/rest period claims, you will be
20 offered compensation at your Regular Hourly Rate for 3 hour s a week for each week in which
21 22 you were employed at Samsonite as a salaried (exempt) Store Manager since March 24, 2005, up
23 to the date you were reclassified as an hourly (non-exempt) employee.

24

25 (iv) If you are a Plaintiff in California, as to your potential itemized wage statement claims, you

26 will be offered $50 f or your first two-week pay period worked as a s alaried (exempt) Store

27 Manager after March 24, 2005, and $100 for each additional two-week pay period, up to the date
28

- 5 -

NOTICE OF SETTLEMENT OF

CLASS AND COLLECTIVE ACTION, 3:09-

cv-1263 JSW

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page55 of 92

1 you were reclassified as an hourly (non-exempt) employee.

2

3 (v) For Store Managers in California, as to your potential vacation pay claims, you will be offered
4 additional compensation for vacation hours at a rate of 0.0385 ( Samsonite’s rate of vacation
5 accrual per hour worked) times 5 hours per week that you worked since March 24, 2005, times
6
7 your Regular Hourly Rate, for each week that you were classified as salaried (exempt).

8

9 (vi) For Store Managers in New York, as to your potential vacation pay claims, you will be

10 offered additional compensation for vacation hours at a rate of 0.0385 (Samsonite’s rate of
11 vacation accrual per hour worked) times 5 hours per week that you worked since March 24, 2003,
12 times your Regular Hourly Rate, for each week that you were classified as salaried (exempt).
13

14 15 (vii) All California and New York Plaintiffs will also be offered 10% simple, annual interest on

16 all of their overtime, vacation pay, and, in California only, on their meal/rest period claims.

17

18 (viii) If your total allocation based on this formula and the discounts described below equals less
19 than $500, then you will receive the $500 minimum allocation.
20

21

22

C. Discount For Attorneys’ Fees, Litigation Risk, and Prior Settlement Payment

23

Because this matter is settling prior to adjudication, and the outcome of the matter is

24 uncertain, your minimum recovery in this matter will be discounted 30% from the amount which

25 would be calculated based on the formula described above. Additionally, your allocation is based

26 upon a deduction of 25% to pay for Class Counsel’s attorneys’ fees in this matter, in which Class

27 Counsel assumed all of the risk of litigation and provided representation to Plaintiffs and the
28

- 6 -

NOTICE OF SETTLEMENT OF

CLASS AND COLLECTIVE ACTION, 3:09-

cv-1263 JSW

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page56 of 92

1 Class on a contingency basis. Finally, if you received payment pursuant to a private agreement

2 you made with Samsonite regarding this lawsuit earlier this year, the amount you were already
3 paid will be deducted from your total allocation, to avoid double-compensation.
4

5

6

IV. Next Steps and Changes of Address

7

Along with this Notice of Settlement of Class Action, you are receiving a Settlement Offer

8 and Release, with an Opt-In/Claim Form. You may choose to accept the offer and release your

9 claims or you may choose to reject the offer of settlement and opt out from the lawsuit. Both the

10 offer and release are subject to final Court approval of the class and settlement. The fees of
11 counsel for Plaintiffs and the class are to be paid from the settlement amount. If you wish to
12 receive any payment in this case, you must return the enclosed Opt-In/Claim Form no later
13
14 than [90 days after mailing].

15

If you have any change of address after receiving this notice, you are required to

16 notify the Settlement Administrator at the following address, or you may not receive any

17 payment in this matter: [Administrator’s address] Neither the Court nor the parties will be
18 responsible for your failure to provide adequate notice of any change in address. 19
V. Examination of Papers 20
All of the above descriptions of allegations, responses, the settlement and other matters in this 21 22 lawsuit are only summaries and do not fully describe all aspects of the case or settlement. The
23 pleadings and other papers filed in this action are public records and are available for inspection

24 during regular business hours at the Clerk's Office, United States District Court for the Northern

25 District of California, at: U.S. Courthouse, Clerk's Office, 450 Golden Gate Avenue, 16th Floor,

26 San Francisco, California 94102.
27
28

VI. Questions

- 7 -

NOTICE OF SETTLEMENT OF

CLASS AND COLLECTIVE ACTION, 3:09-

cv-1263 JSW

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page57 of 92

1

If you have any further questions with respect to this action or about this Notice, you may

2 direct such questions to counsel for the Plaintiffs, Bryan Schwartz, Bryan Schwartz Law, 180
3 Grand Avenue, Suite 1550, O akland, California, 94612, (510) 444-9300, or email
4 Hillary@BryanSchwartzLaw.com.
5

6 YOU SHOULD NOT CONTACT THE COURT WITH QUESTIONS.

7

VII. Conclusion

8

THIS NOTICE AND ITS CONTENT HAS BEEN AUTHORIZED BY THE

9

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, THE HONORABLE JEFFREY S. WHITE, UNITED STATES DISTRICT

10 COURT JUDGE.

11

/s/

______________________________

12

The Honorable Jeffrey S. White

United States District Judge 13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 8 -

NOTICE OF SETTLEMENT OF

CLASS AND COLLECTIVE ACTION, 3:09-

cv-1263 JSW

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page58 of 92
Exhibit G

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page59 of 92

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 ROSALIE PEARSON and DENNIS

) Case No. CV 09-01263 JSW

NEWSHAM, individually, on behalf of others )

12 similarly situated, and on behalf of the general ) SETTLEMENT OFFER AND RELEASE,

public,

) INCLUDING OPT-IN/CLAIM FORM

13 Plaintiff(s),

) ) Judge: Hon. Jeffrey S. White

14 v.

) Courtroom: 11, 19th Floor )

15 SAMSONITE COMPANY STORES, INC.,

) Date Action Filed: March 24, 2009 )

16 SAMSONITE CORPORATION, and DOES 1 – )

50, inclusive,

)

17

)

Defendant(s).

)

18

IF YOU ARE RECEIVING THIS NOTICE, THEN IT WILL LIKELY AFFECT

19

YOUR RIGHT TO BE COMPENSATED. PLEASE REVIEW CAREFULLY.

20

21

Deadline For Submission of Opt-In/Claim Form: [DATE]

22
NOTICE TO [NAME]_______________:
23
PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS WILL BE
24 AFFECTED BY PROCEEDINGS IN THIS ACTION.

25 AS A POTENTIAL CLASS AND/OR COLLECTIVE ACTION PLAINTIFF IN THE ABOVE-
REFERENCED ACTION, IF YOU SUBMIT THE ATTACHED OPT-IN/CLAIM FORM, YOU WILL BE

26 ENTITLED TO RECEIVE A PAYMENT PURSUANT TO THE PROPOSED SETTLEMENT DESCRIBED
HEREIN, AS LONG AS THIS SETTLEMENT RECEIVES FINAL APPROVAL BY THE COURT.

27
1.
28

Under the terms of the settlement, you will receive a payment of at least $_______________ for the settlement of your claims in the lawsuit, which will occur after the Court approves the settlement as final.

- 1 -

SETTLEMENT OFFER AND RELEASE FOR

CLASS AND COLLECTIVE ACTION

PLAINTIFFS, CASE NO. 3:09-cv-1263 JSW

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page60 of 92

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

For tax reasons, this payment will be divided into two separate parts, delivered at the same time, and applicable withholding taxes and other amounts will be withheld.

If you wish to receive your payment, described above, then you must submit the attached OptIn/Claim form as instructed prior to [90 days after mailing of notice].

If you worked for Samsonite in California or New York, and you do not wish to remain a participant in the case, then you must timely request in writing to opt-out of the Class. I f you remain in the case, you will release the claims described in paragraph 3 below and be permanently barred from asserting any of the claims described in paragraph 3 below. Your request for exclusion must legibly set forth your name and address, and must include a statement that you wish to opt-out and be excluded from the lawsuit and the settlement. Your request for exclusion must be received, via United States mail, postmarked no later than ___ ___<90 days from mailing>____, 2010, by the Settlement Administrator at the following address:

[ADDRESS]

If you wish to participate in this settlement and receive the payment above, then when Court approval of the

Settlement becomes final, you will release and forever discharge Samsonite Company Stores, Inc., and

Samsonite Corporation, and each of their past or present officers, directors, shareholders, employees, agents,

principals, heirs, representatives, accountants, auditors, consultants, insurers and reinsurers, and their

respective successors and predecessors in interest, subsidiaries, affiliates, parent companies and attorneys

and each of their company-sponsored employee benefit plans and all of their respective officers, directors,

employees, administrators, fiduciaries, trustees, agents, and any individual or entity which could be jointly

liable with Samsonite Company Stores, Inc., and Samsonite Corporation, all claims, demands, rights,

liabilities, and causes of action known or unknown, asserted or that might have been asserted, whether in

tort, contract, or for violation of any state or federal statute, rule or regulation arising out of, relating to, or in

connection with any and all claims, demands, rights, liabilities, and causes of action, whether at law or in

equity, including claims under federal, state and/or local wage and hour laws, whether known or unknown,

asserted or unasserted, you may have arising up to and including the date you sign this release, whether in

the nature of claims for damages, liquidated damages, punitive damages, unpaid wages, premium pay,

waiting-time penalties, interest, attorney's fees, or injunctive relief or other penalties that were or could have

been asserted out of, relating to, or in connection with any:

a.

improper classification as exempt;

b.

failure to provide overtime wages when due;

c.

failure to provide timely or accurate final paychecks, statements of earning, or

compensable time worked;

d.

failure to provide meal or rest periods or payments in lieu thereof;

e.

failure to make or keep records of time worked;

f.

failure to provide the appropriate number of vacation hours; and

g.

unfair business practices arising from any of a. through f. above.

- 2 -

SETTLEMENT OFFER AND RELEASE FOR CLASS AND COLLECTIVE ACTION
PLAINTIFFS, CASE NO. 3:09-cv-1263 JSW

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page61 of 92

1

OPT-IN/CLAIM FORM

2

in relation to

Pearson, et al. v. Samsonite Company Stores, Inc., et al. - Wage and Hour Settlement

3

Untied States District Court

Northern District of California

4

Case No. 3:09-cv-1263 JSW

5 YOU MUST SIGN, DATE, AND SUBMIT THIS FORM SO THAT IT IS RECEIVED NO

LATER THAN [90 DAYS FROM MAILING] IN ORDER TO RECEIVE ANY

6

COMPENSATION IN THIS MATTER

7

I hereby consent to join a lawsuit against Samsonite Company Stores, Inc., and Samsonite

Corporation (together, “Samsonite”), as a Plaintiff, to assert claims against it for violations of the 8 wage and hour laws of the United States and/or the state(s) where I worked for Samsonite. There

9 were occasions when I worked over 40 hours per week for Samsonite as a Store Manager and did not receive overtime compensation.

10

I have carefully reviewed the Settlement Offer and Release, and hereby agree that in

exchange for the payment articulated in the Settlement Offer and Release, I release the wage/hour

11 claims identified in the Settlement Offer and Release against Samsonite and the parties named

therein. 12

13 _____________________ _____________

14

Signature

Date

15
16
17
18 Fax or Mail To:
19
20 [SETTLEMENT ADMIN.] 21

____________________________________ Print Name
____________________________________ Address (with apartment number if applicable)
____________________________________ City, State, Zip Code
____________________________________ Best Phone Numbers

22

____________________________________

E-Mail Address 23

24

____________________________________ Social Security Number

25

____________________________________

26

Emergency Contact

27

____________________________________

28

Samsonite Location(s) Worked

- 3 -

SETTLEMENT OFFER AND RELEASE FOR CLASS AND COLLECTIVE ACTION
PLAINTIFFS, CASE NO. 3:09-cv-1263 JSW

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page62 of 92
Exhibit H

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page63 of 92

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 ROSALIE PEARSON and DENNIS

) Case No. CV 09-01263 JSW

NEWSHAM, individually, on behalf of others )

12 similarly situated, and on behalf of the general ) NOTICE REGARDING SETTLEMENT

public,

) OF CLASS AND COLLECTIVE

13 Plaintiff(s),

) ACTION AND RELEASE )

14 v.

) Judge: Hon. Jeffrey S. White ) Courtroom: 11, 19th Floor

15 SAMSONITE COMPANY STORES, INC.,

) ) Date Action Filed: March 24, 2009

16 SAMSONITE CORPORATION, and DOES 1 – )

50, inclusive,

)

17

)

Defendant(s).

)

18

IF YOU ARE RECEIVING THIS NOTICE, THEN IT WILL LIKELY AFFECT

19

YOUR RIGHT TO BE COMPENSATED. PLEASE REVIEW CAREFULLY.

20

21

22

23

24

25

26

27

28

- 1 -

NOTICE REGARDING SETTLEMENT OF CLASS AND COLLECTIVE ACTION AND RELEASE (CV 09-01263 JSW)

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page64 of 92

1 RE: Lawsuit against Samsonite

2 <DATE>

3 Dear <NAME>,

4 We are pleased to report that we have reached a settlement with Samsonite Company Stores, Inc., and Samsonite, relating to the Pearson, et al. v. Samsonite Company Stores, Inc., et al., lawsuit
5 against the company, which entitles you to compensation in exchange for your release of wage/hour claims against the company.
6 Your individual settlement offer and release is attached. If you have any questions about the
7 settlement or release, please contact Hillary Baker at Hillary@BryanSchwartzLaw.com, or 510444-9300.
8 Though you have already opted-into this matter, to receive a payment under this settlement,
9 you must submit the attached claim form not later than [90 days from mailing].

10 Sincerely,

11

12 Bryan J. Schwartz

13 Enclosure

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 2 -

NOTICE REGARDING SETTLEMENT OF CLASS AND COLLECTIVE ACTION AND RELEASE (CV 09-01263 JSW)

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page65 of 92

1

Settlement Offer and Release

2

in relation to

Pearson, et al. v. Samsonite Company Stores, Inc., et al. - Wage and Hour Settlement

3

Untied States District Court

Northern District of California

4

Case No. 3:09-cv-1263 JSW

5 NOTICE TO [NAME]_______________:

6 PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS WILL BE

AFFECTED BY PROCEEDINGS IN THIS ACTION.

7

AS AN OPT-IN PLAINTIFF WHO FILED A CONSENT FORM IN THE ABOVE-REFERENCED ACTION,

8 YOU ARE ENTITLED TO RECEIVE A PAYMENT PURSUANT TO THE SETTLEMENT DESCRIBED

HEREIN, AS LONG AS THE SETTLEMENT RECEIVES THE COURT’S FINAL APPROVAL.

9

1. Under the terms of the settlement, you will receive a payment of at least $_______________ for the

10

settlement of your claims in the lawsuit, which will occur after the Court approves the settlement as final.

For tax reasons, this payment will be divided into two separate parts, delivered at the same time, and

11

applicable withholding taxes will be withheld.

12

2. If you do not wish to remain a participant in the case, then you must timely request in writing to be

withdrawn from the case. I f you remain in the case, you will release the claims described in paragraph 3

13

below and be permanently barred from asserting any of the claims described in paragraph 3 below. Your

request for exclusion must legibly set forth your name and address, and must include a statement that you

14

wish to withdraw and be excluded from the lawsuit and the settlement. Your request for exclusion must be received, via United States mail, postmarked no later than ___ ___<90 days from mailing>____, 2010, by

15

the Settlement Administrator at the following address:

16

[Settlement Administrator]

17

3. If you wish to participate in this settlement and receive the payment above, then when Court approval of the Settlement becomes final, you will release and forever discharge Samsonite Company Stores, Inc., and

18

Samsonite Corporation, and each of their past or present officers, directors, shareholders, employees, agents, principals, heirs, representatives, accountants, auditors, consultants, insurers and reinsurers, and their

19

respective successors and predecessors in interest, subsidiaries, affiliates, parent companies and attorneys and each of their company-sponsored employee benefit plans and all of their respective officers, directors,

20

employees, administrators, fiduciaries, trustees, agents, and any individual or entity which could be jointly liable with Samsonite Company Stores, Inc., and Samsonite Corporation, all claims, demands, rights,

21

liabilities, and causes of action known or unknown, asserted or that might have been asserted, whether in tort, contract, or for violation of any state or federal statute, rule or regulation arising out of, relating to, or in

22

connection with any and all claims, demands, rights, liabilities, and causes of action, whether at law or in equity, including claims under federal, state and/or local wage and hour laws, whether known or unknown,

23

asserted or unasserted, you may have arising up to and including the date you sign this release, whether in the nature of claims for damages, liquidated damages, punitive damages, unpaid wages, premium pay,

24

waiting-time penalties, interest, attorney's fees, or injunctive relief or other penalties that were or could have been asserted out of, relating to, or in connection with any:

25

a.

improper classification as exempt;

b.

failure to provide overtime wages when due;

26

c.

failure to provide timely or accurate final paychecks, statements of earning, or

compensable time worked;

27

d.

failure to provide meal or rest periods or payments in lieu thereof;

e.

failure to make or keep records of time worked;

f.

failure to provide the appropriate number of vacation hours; and

28

g.

unfair business practices arising from any of a. through f. above.

- 3 -

NOTICE REGARDING SETTLEMENT OF CLASS AND COLLECTIVE ACTION AND RELEASE (CV 09-01263 JSW)

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page66 of 92

1

CLAIM FORM

2

in relation to

Pearson, et al. v. Samsonite Company Stores, Inc., et al. - Wage and Hour Settlement

3

Untied States District Court

Northern District of California

4

Case No. 3:09-cv-1263 JSW

5 YOU MUST SIGN, DATE, AND SUBMIT THIS FORM SO THAT IT IS RECEIVED NO

LATER THAN [90 DAYS FROM MAILING] IN ORDER TO RECEIVE ANY

6

COMPENSATION IN THIS MATTER

7

I have carefully reviewed the Settlement Offer and Release, and hereby agree that in

exchange for the payment articulated in the Settlement Offer and Release, I release the wage/hour 8 claims identified in the Settlement Offer and Release against Samsonite Company Stores, Inc.,

9 Samsonite Corporation, and the parties named therein.

10

_____________________ _____________

11

Signature

Date

12

____________________________________

13

Print Name

14
15 16 Fax or Mail To:
17 [SETTLEMENT ADMIN.]
18

____________________________________ Address (with apartment number if applicable)
____________________________________ City, State, Zip Code
____________________________________ Best Phone Numbers

19

____________________________________

20

E-Mail Address

21

____________________________________

Social Security Number

22

____________________________________

23

Emergency Contact

24

____________________________________

25

Samsonite Location(s) Worked

26

27

28

- 4 -

NOTICE REGARDING SETTLEMENT OF CLASS AND COLLECTIVE ACTION AND RELEASE (CV 09-01263 JSW)

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Exhibit I

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1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

4 ROSALIE PEARSON and DENNIS

) Case No. CV 09-01263 JSW

NEWSHAM, individually, on behalf of others )

5 similarly situated, and on behalf of the general ) [proposed] ORDER GRANTING FINAL

public,

) APPROVAL OF SETTLEMENT

6

)

Plaintiff(s),

) Judge: Hon. Jeffrey S. White

7

) Courtroom: 11, 19th Floor

v.

)

8

) Date Action Filed: March 24, 2009

SAMSONITE COMPANY STORES, INC., )

9 SAMSONITE CORPORATION, and DOES 1 – )

50, inclusive,

)

10

)

Defendant(s).

)

11

12

[PROPOSED] ORDER

13

The Court granted preliminary approval of the “Joint Stipulation of Settlement and

14 Release Between Plaintiffs and Defendant.” For the reasons stated in the “Joint Motion for Final
15 Approval of Settlement and Release Between Plaintiffs and Defendant,” and applying each of the
16 factors outlined by the 9th Circuit in Officers of Justice v. Civil Service Com’n of City and County
17 18 of San Francisco, 688 F.2d 615, 625 (9th Cir. 1982) and the other cases cited in the Joint Motion,
19 I have determined that this settlement is fundamentally fair, adequate, and reasonable. The Court

20 further grants the attorneys’ fees and costs allocated therein, which are reasonable based on the

21 fine result obtained for the class, the risk taken by Class Counsel and amount of work Class

22 Counsel expending in litigating the matter on a contingency basis, and which comply with the 9th

23 Circuit’s benchmark for attorneys’ fees in a class action (attorneys’ fees equal 25% of the
24 common fund). See, e.g., Powers v. Eichen, 229 F.3d 1249, 1256-57 (9th Cir. 2000).
25

26

Thus, and in light of all of the relevant authority and the entire record in this case, the

27 Court hereby GRANTS FINAL APPROVAL of the Joint Stipulation of Settlement and Release

28 Between Plaintiffs and Defendant and the settlement payments to the class, enhancements to

Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page69 of 92

1 representative Plaintiffs, and fees and costs to counsel outlined therein.

2

Without affecting the finality of this Order and Final Judgment, this Court retains

3 exclusive jurisdiction over the parties and the Settlement Class for all matters relating to this
4 Court Action, including the administration, interpretation, effectuation or enforcement of the
5
Stipulation of Settlement and this Order and Final Judgment. 6

7

So Ordered.

8

9

_____________________________

Jeffrey S. White

10

United States District Court

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 2 -

[PROPOSED] NOTICE OF SETTLEMENT OF CLASS ACTION
CV 07-01852 PSG (VBKx)

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Case3:09-cv-01263-JSW Document43-1 Filed11/20/09 Page92 of 92 Representative Sample

 
 Case3:09-cv-01263-JSW Document43 Filed11/20/09 Page1 of 46

1 BRYAN SCHWARTZ (SBN 209903)

2 BRYAN SCHWARTZ LAW

180 Grand Avenue, Suite 1550

3 Oakland, CA 94612

4

Tel.: 510-444-9300 FAX: 510-444-9301

5 Email: Bryan@BryanSchwartzLaw.com

6 Attorney for Individual and Representative Plaintiffs

7

MARTIN K. DENISTON (SBN 106737)

8 DANIEL H. LEE (SBN 217001)

WILSON, ELSER, MOSKOWITZ,

9 EDELMAN & DICKER LLP

555 South Flower Street Suite 2900

10 Los Angeles, CA 90071

Telephone: (213) 443-5100

11 Facsimile: (213) 443-5101

Email: Daniel.Lee@wilsonelser.com

12

Martin.Deniston@wilsonelser.com

13 Attorneys for Defendants, SAMSONITE COMPANY STORES, INC.
14 and SAMSONITE CORPORATION

15 UNITED STATES DISTRICT COURT
16

17

NORTHERN DISTRICT OF CALIFORNIA

18

19 ROSALIE PEARSON and DENNIS

) Case No. CV 09-01263 JSW

NEWSHAM, individually, on behalf of others ) 20 similarly situated, and on behalf of the general ) NOTICE OF MOTION AND JOINT

21 public,

) MOTION FOR PRELIMINARY ) APPROVAL OF JOINT STIPULATION

22

Plaintiff(s),

) OF SETTLEMENT AND RELEASE

23

v.

) BETWEEN PLAINTIFFS AND ) DEFENDANTS

24 SAMSONITE COMPANY STORES, INC.,

) ) Judge: Hon. Jeffrey S. White

25

SAMSONITE CORPORATION, and DOES 1 – )

50, inclusive,

)

Courtroom: 11, 19th Floor

26 Defendant(s).
27

) )

Date Action Filed: March 24, 2009 Hearing: December 18, 2009, 9:00 a.m.1

28 1 Concurrently with this Motion, the parties file a stipulation seeking this hearing date.

i

Case3:09-cv-01263-JSW Document43 Filed11/20/09 Page2 of 46

1 Table of Contents

2 SUMMARY OF ARGUMENT ............................................................................ ………...1
3

4

NOTICE OF MOTION AND MOTION .............................................................. ………...2

5

MEMORANDUM OF POINTS AND AUTHORITIES ..................................................... 2

6

I. INTRODUCTION ........................................................................................................... 2

7

II. FACTUAL BACKGROUND ........................................................................................ 4

8

A. Defendants have reclassified the Store Manager Position .............................. ………...4

9 B. Plaintiffs have developed a substantial factual record warranting certification and

10

justifying the settlement ........................................................................................ ………...5

11

1. Plaintiffs would argue, if the matter were not resolved through settlement, that

12

certification is appropriate and liability warranted as a matter of law concerning Store Managers who fail to meet the executive exemption test because they did not

13

supervise 80 or more hours of subordinates’ time each week, which can be

established through common proof settlement.

14

.................................................................................................................................. 6

15

2. Plaintiffs would argue, if the matter were not approved for settlement, that

16

certification and liability are appropriate, class-wide, because the executive exemption cannot apply to Samsonite’s Store Managers, since they do not meet the

17

duties test of the exemption.

.............................................................................................................................. 357

18

3. Plaintiffs would argue, if the settlement was not approved, that the extent of

19

centralized control and common policies, practices, and procedures concerning

20

Store Managers both warrants certification and demonstrates that the Store Managers lacked substantial discretionary powers.

21

.............................................................................................................................. 359

22

4. If the matter proceeded through litigation, Plaintiffs would seek to show

willfulness and lack of good faith through common proof of prior wage/hour cases

23

against Samsonite.

24

............................................................................................................................ 3512

25

C. Defendants Have Developed A Factual Record Demonstrating Plaintiffs' Litigation

26

Risks, Warranting Settlement.............................................................................. ………...12

27

28

NOTICE OF MOTION AND JOINT MOTION FOR

ii

PRELIMINARY APPROVAL OF SETTLEMENT

BETWEEN PLAINTIFFS AND DEFENDANT; CV

09-01263 (JSW)

Case3:09-cv-01263-JSW Document43 Filed11/20/09 Page3 of 46

1 1. Samsonite would argue, if the matter was not amicably resolved, that Store

2

Managers were properly classified.

................................................................................................................................ 12

3

4

2. Defendants would argue, if the matter were not settled, that Plaintiffs’ claims that they should have been classified as non-exempt employees are not credible.

5

............................................................................................................................ 3514

6

3. Defendants would argue, if the matter were not settled, that, the Store Managers

either customarily or regularly directed the work of two or more other employees,

7

or were converted to a non-exempt status.

8

............................................................................................................................ 3516

9

4. Defendants would argue, if the matter were not settled, that, even if Store

Managers were misclassified, they were classified as exempt (and ultimately

10

reclassified as non-exempt) in good faith, and that therefore, they are not liable

under the FLSA.

11

............................................................................................................................ 3517

12

5. Samsonite would argue, if the matter were not amicably resolved, that a

13

substantial portion of the class have waived most or all of their claims and are, in

any event, not entitled to participate in this collective/class action suit, by virtue of

14

private releases they signed with the company.

............................................................................................................................ 3518 15

16

D. Plaintiffs and the putative class members' claims are addressed fairly and adequately in the settlement. ................................................................................................. ………...19

17

E. Plaintiffs' Observations Regarding Samsonite and the Retail Industry's Precarious

18

Financial Position Recommend the Court's Swift Preliminary Approval of this Settlement.

............................................................................................................................. ………...22 19

20

III. THE COURT SHOULD CERTIFY THE CLASS FOR SETTLEMENT PURPOSES AND GRANT PRELIMINARY APPROVAL OF THE SETTLEMENT. ............................................. 23

21 A. Certification for Settlement Purposes Is Appropriate. ............................................. 23
22

B. The Notices and Settlement Meet the Standards Set Forth in Fed.R.Civ.P. 23(e) and

23

the 9th Circuit’s Officers for Justice Case................................................................ 25

24 1. The strength of the Plaintiffs’ case. .............................................................. 25

25
2. The risk, expense, complexity, and likely duration of further litigation. ..... 26 26

27

3. The risk of maintaining class action status throughout the trial. .................. 26

28

4. The amount offered in settlement................................................................. 27

NOTICE OF MOTION AND JOINT MOTION FOR

iii

PRELIMINARY APPROVAL OF SETTLEMENT

BETWEEN PLAINTIFFS AND DEFENDANT; CV

09-01263 (JSW)

Case3:09-cv-01263-JSW Document43 Filed11/20/09 Page4 of 46

1

2

5. The stage of the proceedings. ....................................................................... 28

3

6. The experience and views of counsel.. ......................................................... 26

4

7. The presence of a governmental participant. N/A........................................ 27

5 8. The reaction of the class members to the proposed settlement. ................... 29
6 B. The Process for Administering this Settlement Support Preliminary Approval. ..... 29
7

8

C. The Enhancements to the Representative Plaintiffs are Reasonable and Fair.......... 30

9

D. The Attorneys Fees Award Included in the Settlement is Just, Reasonable, and Fair.

.................................................................................................................................. 30

10

1. The Court Should Use The Common Fund, Percentage of the Fund Method

11

To Review The Allocation Of Attorneys’ Fees............................................ 30

12

2. The Court Should Approve An Award Of 25% Of The Gross Recovery. ... 33

13 IV. CONCLUSION............................................................................................................ 34
14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

NOTICE OF MOTION AND JOINT MOTION FOR

iv

PRELIMINARY APPROVAL OF SETTLEMENT

BETWEEN PLAINTIFFS AND DEFENDANT; CV

09-01263 (JSW)

Case3:09-cv-01263-JSW Document43 Filed11/20/09 Page5 of 46

1

2

3

Cases

Table of Authorities

4 In re Activision Sec. Litig., 723 F. Supp. 1373 (N.D. Cal. 1989) .............................................................................................. 32
5

Adams v. Inter-Con Sec. Systems, Inc.,

6

242 F.R.D. 530 (N.D. Cal., 2007) .................................................................................................. 12

7 Alvarez v. IBP, Inc.,
8 339 F.3d 894 (9th Cir. 2003).......................................................................................................... 12

9 Amaral v. Cintas Corp. No. 2,

10

163 Cal.App.4th 1157 (2008)......................................................................................................... 21

11

Amchem Products, Inc. v. Windsor,

521 U.S. 591, 117 S.Ct. 2231 (1997) ............................................................................................. 24

12

Antonopulos v. North American Thoroughbreds, Inc., 13 1991 WL 427893 (S.D.Cal. May 6, 1991) ..................................................................................... 33

14

Baker v. D.A.R.A. II, Inc.,

15

2008 WL 191995 (D.Ariz. Jan. 22, 2008)...................................................................................... 12

16 Balce v. Lucky Chances, Inc., 2008 WL 564792 (N.D. Cal. February 28, 2008) ............................................................................ 9
17

18

Baldwin v. Trailer Inns, Inc., 266 F.3d 1104 (9th Cir. 2001)......................................................................................................... 26

19 Barrentine v. Arkansas-Best Freight System,
20 450 U.S. 728 (1981) ....................................................................................................................... 19

21

Beauperthuy v. 24 Hour Fitness, USA, Inc.,

22

2008 WL 793838 (N.D. Cal. March 24, 2008) ........................................................................ 10, 23

23 Bell v. Farmers Ins. Exchange, 135 Cal.App.4th 1138, 1150 (2006) .............................................................................................. 20

24

Blum v. Stenson,

25

465 U.S. 886, 104 S.Ct. 1541 (1984) ....................................................................................... 31, 32

26

Boeing Co. v . Van Gemert,

27 444 U.S. 472 (1980) ................................................................................................................. 30, 31

28

NOTICE OF MOTION AND JOINT MOTION FOR

v

PRELIMINARY APPROVAL OF SETTLEMENT

BETWEEN PLAINTIFFS AND DEFENDANT; CV

09-01263 (JSW)

Case3:09-cv-01263-JSW Document43 Filed11/20/09 Page6 of 46

1 Boyd v. Bechtel Corp.,
2 485 F. Supp. 610 (N.D. Cal. 1979) ................................................................................................ 29

3 Bratt v. County of Los Angeles,

4

912 F.2d 1066 (9th Cir. 1990)........................................................................................................ 20

5

Brinkley v. Public Storage, Inc.,

2008 WL 4716800 (Cal.App.2 Dist.) (Nov. 5, 2008) .................................................................... 21

6

Brinker Restaurant Corporation, et al. v. Superior Court, 7 80 Cal.Rptr.3d 781 (Cal.App.4 Dist. 2008) ................................................................................... 21

8

Bufil v. Dollar Financial Group, Inc.,

9

162 Cal.App.4th 1193, 1199 (2008) .............................................................................................. 21

10 Campbell v. PricewaterhouseCoopers, LLP, 253 F.R.D. 586 (E.D.Cal. 2008) .................................................................................................... 20
11

12

Camper v. Home Quality Mgmt., Inc., 200 F.R.D. 516 (D. Md. 2000) ....................................................................................................... 10

13 Castle v. Wells Fargo Financial, Inc.,
14 2008 WL 495705 (N.D.Cal. Feb. 20, 2008)................................................................................... 23

15

Central R.R. & Banking Co. v. Pettus,

16

113 U.S. 116 (1885) ....................................................................................................................... 31

17

Champneys v. Ferguson Enter. Inc.,

2003 WL 1562219 (S.D.Ind. Mar. 11, 2003)................................................................................. 23

18

Chao v. A-One Medical Services, Inc.,

19

346 F.3d 908 (9th Cir. 2003).......................................................................................................... 12

20

Chindarah v. Pick Up Stix, Inc.,

21 171 Cal.App.4th 796 (2009)........................................................................................................... 19

22 Cicairos v. Summit Logistics, Inc., 133 Cal.App.4th 949 (2005)............................................................................................................ 21
23

24

Class Plaintiffs v. City of Seattle,

955 F.2d 1268 (9th Cir. 1992)....................................................................................................... 29

25
In re Continental Illinois Sec. Litig., 26 962 F.2d 566 (7th Cir. 1992).................................................................................................... 31, 32

27

Criswell v. Western Airlines, Inc.,

28

709 F.2d 544 (9th Cir. 1983)........................................................................................................... 20

NOTICE OF MOTION AND JOINT MOTION FOR

vi

PRELIMINARY APPROVAL OF SETTLEMENT

BETWEEN PLAINTIFFS AND DEFENDANT; CV

09-01263 (JSW)

Case3:09-cv-01263-JSW Document43 Filed11/20/09 Page7 of 46

1 Crown Cork Seal Company, Inc. v. Parker,
2 462 U.S. 345, 103 S.Ct. 2392 (1983) ............................................................................................... 5

3 In re CV Therapeutics, Inc., Securities Litigation,

4

2007 WL 1033478, *1 (N.D.Cal. April 4, 2007) ........................................................................... 33

5

DeAsencio v. Tyson Foods, Inc.,

130 F.Supp.2d 660 (E.D. Pa. 2001) ............................................................................................... 10

6

Dukes v. Wal-Mart, Inc., 7 509 F.3d 1168 (9th Cir. 2007)........................................................................................................ 24

8

EEOC v. O’Grady,

9

857 F.2d 383 (7th Cir. 1988)........................................................................................................... 20

10 Ellis v. Naval Air Rework Facility, 87 F.R.D. 15 (N.D. Cal. 1980) ....................................................................................................... 29
11

12

Frank v. McQuigg, 950 F.2d 590 (9th Cir. 1991).......................................................................................................... 17

13 Gelof v. Papineau,

14

648 F.Supp. 912 (D.Del. 1986) ..................................................................................................... 20

15

General Electric Co. v. Porter,

16

208 F.2d 805 (9th Cir. 1953).......................................................................................................... 17

17 Gentry v. Superior Court, 42 Cal.4th 443 (2007) .............................................................................................................. 19, 30

18

Gerlach v. Wells Fargo & Co.,

19

05-cv-00585-CW, (N.D. Cal.).................................................................................................. 27, 34

20

Gjurovich v. Emmanuel's Marketplace, Inc.,

21 282 F.Supp.2d 91 (S.D.N.Y.2003)................................................................................................. 23

22 Glass v. UBS Financial Services, Inc., 2007 WL 221862 (N.D.Cal. 2007)................................................................................................. 30
23

24

Gulf Oil Co. v. Bernard,

452 U.S. 89 (1981) ......................................................................................................................... 18

25 Guzman v. Varco Intern., Inc.,
26 2002 WL 32639237 (S.D. Tex. May 30, 2002) ............................................................................. 10

27

Hanlon v. Chrysler Corp.,

28

150 F.3d 1011 (9th Cir. 1998)................................................................................................... 24, 25

NOTICE OF MOTION AND JOINT MOTION FOR

vii

PRELIMINARY APPROVAL OF SETTLEMENT

BETWEEN PLAINTIFFS AND DEFENDANT; CV

09-01263 (JSW)

Case3:09-cv-01263-JSW Document43 Filed11/20/09 Page8 of 46

1 In re Heritage Bond Litigation,
2 2005 WL 1594403 (C.D.Cal. 2005)......................................................................................... 30, 33

3 Hodgson v. Cactus Craft of Arizona,

4

481 F.2d 464 (9th Cir.1973)........................................................................................................... 12

5

Horenstein v. Mortgage Mkt., Inc.,

9 Fed. Appx. 618 (9th Cir. 2001) ................................................................................................... 18

6

Horrocks v. Daggett County, 7 2006 WL 2598331 (D.Utah Sept. 11, 2006) .................................................................................. 12

8

In re Immunex Sec. Litig.,

9

864 F.Supp. 142 (W.D. Wash. 1994) ............................................................................................. 33

10 Kairy v. Supershuttle International, Inc., 2009 WL 1457971 (N.D. Cal. May 21, 2009) .................................................................. 23, 25, 26
11

12

Kakani v. Oracle Corp., 2007 WL 1793774 (N.D. Cal. June 19, 2007) ................................................................... 28, 30, 34

13 Kelly v. City & County of San Francisco,
14 2008 U.S. Dist. LEXIS 108871 (N.D. Cal. June 30, 2008) ........................................................... 18

15

M. Berenson Co. v. Faneuil Hall Marketplace, Inc.,

16

671 F. Supp. 819 (D. Mass 1987) .................................................................................................. 29

17

McLaughlin v. Richland Shoe Co.,

486 U.S. 128, 108 S.Ct. 1677 (1988) ......................................................................................... 5, 12

18

In re M.D.C. Holdings Sec. Litig.,

19

1990 WL 454747 (S.D.Cal. Aug.30, 1990) ................................................................................... 33

20

In re Mego Fin. Corp. Sec. Litig.,

21 213 F.3d 454 (9th Cir.2000)........................................................................................................... 33

22 Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233 (11th Cir. 2008).................................................................................................. 9, 25
23

24

Officers for Justice v. Civil Service Com'n of City and County of San Francisco, 688 F.2d 615 (9th Cir. 1982)................................................................................................. 1, 25, 29

25
Otsuka v. Polo Ralph Lauren Corp., 26 251 F.R.D. 439 (N.D.Cal. 2008) .................................................................................................... 24

27

Paul, Johnson, Alston & Hunt,

28

886 F.2d 268 (9th Cir. 1989).............................................................................................. 31, 32, 33

viii

NOTICE OF MOTION AND JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT BETWEEN PLAINTIFFS AND DEFENDANT; CV 09-01263 (JSW)

Case3:09-cv-01263-JSW Document43 Filed11/20/09 Page9 of 46

1 Powers v. Eichen,
2 229 F.3d 1249 (9th Cir. 2000)........................................................................................................ 33

3 In re Public Ser. Co. of New Mexico,

4

1992 WL 278452 (S.D.Cal. July 28, 1992).................................................................................... 33

5

In re Quintus Securities Litigation,

148 F.Supp.2d 967 (N.D. Cal. 2001) ............................................................................................. 33

6

Rees v. Souza’s Milk Transp., Co., et al., 7 2006 WL 738987 (E.D. Ca. Mar. 22, 2006) .................................................................................. 10

8

Rosenburg v. International Business Machines Corp.,

9

2007 WL 2043855 (July 12, 2007) (Hamilton, J.)............................................................. 27, 28, 34

10 Sav-On Drug Stores, Inc. v. Sup. Ct., 34 Cal. 4th 319 (2004) .................................................................................................................... 9
11

12

Serrano v. Priest., 20 Cal. 3rd 25 (1977) .................................................................................................................... 31

13 Seinfeld v. Robinson,
14 246 A.D. 2d 291 (N.Y. App. Div. 1998)........................................................................................ 31

15

Shea v. Galaxie Lumber & Const. Co., Ltd.,

16

152 F.3d 729 (7th Cir. 1998)........................................................................................................... 20

17

Six Mexican Workers v. Ariz. Citrus Growers,

904 F.2d 1301 (9th Cir. 1990)......................................................................................................... 31

18

Skyline Homes, Inc., v. Dept. of Industrial Relns.,

19

165 Cal.App.3d 239 (1985)............................................................................................................ 19

20

Stanfield v. First NLC,

21 06-cv-3892-SBA (N.D. Cal.) ............................................................................................. 27, 28, 34

22 Staton v. Boeing, 327 F.3d 938 (9th Cir. 2003)) ........................................................................................................ 29
23

24

Suastez v. Plastic Dress-Up Co.,

31 Cal.3d 774 (1982) ..................................................................................................................... 21

25
Swedish Hosp. Corp. v. Shalala, 26 1 F.3d 1261 (D.C. Cir. 1993) ................................................................................................... 31, 32

27

Tidewater Marine Western, Inc. v. Bradshaw,

28

14 Cal.4th 557 (1996) .................................................................................................................... 19

NOTICE OF MOTION AND JOINT MOTION FOR

ix

PRELIMINARY APPROVAL OF SETTLEMENT

BETWEEN PLAINTIFFS AND DEFENDANT; CV

09-01263 (JSW)

Case3:09-cv-01263-JSW Document43 Filed11/20/09 Page10 of 46

1 Tierno v. Rite Aid Corp.,
2 2006 WL 2535056 (N.D. Cal. August 31, 200) ............................................................................. 24

3 Van Vranken v. Atlantic Richfield Co.,

4

901 F.Supp. 294 (N.D.Cal.1995) ................................................................................................... 30

5

Watkins v. Wachovia Corp.,

172 Cal.App.4th 1576 (2009)......................................................................................................... 19

6

Western Pacific Fisheries, Inc. v. SS President Grant, 7 730 F.2d 1280 (9th Cir. 1984)......................................................................................................... 20

8

Wren v. RGIS Inventory Specialists,

9

2007 WL 4532218 (N.D.Cal. December 19, 2007) ....................................................................... 12

10 Zavala v. Scott Bros. Dairy, 143 Cal.App.4th 585 (2006)........................................................................................................... 21
11

12

Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir. 2001)........................................................................................................ 24

13 Zucker v. Occidental Petroleum Corp.,
14 192 F.3d 1323 (9th Cir. 1999)........................................................................................................ 34

15

Federal Statutes

16

29 U.S.C. § 216 .......................................................................................................................... 2, 23

29 U.S.C. § 255(a) ........................................................................................................................... 5

17

29 U.S.C. § 259(a) ......................................................................................................................... 17

18 29 U.S.C. § 260 .............................................................................................................................. 20

19 Federal Regulations
20 29 C.F.R. § 541, et seq. ................................................................................................................... 6

21

29 C.F.R. § 541.700 ...................................................................................................................... 15

22 29 C.F.R. § 778.114. ...................................................................................................................... 19

23 California Statutes

24

Cal. Business and Professions Code § 17200 .................................................................................. 5

25 Cal. Labor Code § 206 ................................................................................................................... 19

26 Cal. Labor Code § 206.5 ................................................................................................................ 19

27

Cal. Labor Code § 226(e)............................................................................................................... 21

Cal. Labor Code § 226.7 ................................................................................................................ 20

28

NOTICE OF MOTION AND JOINT MOTION FOR

x

PRELIMINARY APPROVAL OF SETTLEMENT

BETWEEN PLAINTIFFS AND DEFENDANT; CV

09-01263 (JSW)

Case3:09-cv-01263-JSW Document43 Filed11/20/09 Page11 of 46

1 Cal. Labor Code § 227.3 ................................................................................................................ 21

2

Cal. Labor Code § 512 ................................................................................................................... 20

3 New York Statutes

4

New York C.L.S. Labor § 198(3) .................................................................................................... 5

5

California Regulations

Cal. Code Regs., tit. 8, § 11070(1)(A)(1) .................................................................................... 6, 9

6

New York Regulations

7

12 N.Y. Comp. R. & Regs. § 141-3.2(c)(1)(i) ............................................................................. 6, 9

8 12 N.Y. Comp. R. & Regs. § 142-2.2 ............................................................................................ 19

9

12 N.Y. Comp. R. & Regs. § 142-2.16 .......................................................................................... 19

10 Other Authorities

11

California’s Division of Labor Standards Enforcement Opinion Letter (http://www.dir.ca.gov/dlse/opinions/1997-12-03-2.pdf). ............................................................. 19

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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2

SUMMARY OF ARGUMENT

3

Plaintiffs, two managers working at a Samsonite Company Stores store in California and

4 in New York, claim that Samsonite (who operates retail stores where they sell the Samsonite

5 brand luggage) improperly classified all store managers as exempt employees. Had they been

6 properly classified, Plaintiffs claim, they would be entitled to unpaid wages, penalties and

7 interest. The case was extensively litigated during past approximately eight months, including the

8 exchange of multiple sets of written discovery, production of thousands of documents, and a host

9 of depositions of top company managers, a former manager, and one Plaintiff.

10

Pursuant to court order, the Parties participated in mediation with the Court-appointed

11 mediator, Baldwin Lee. The mediation was contentious, lasting two full days. E ventually the

12 mediator made a mediator’s proposal, which the Parties accepted on N ovember 5, 2009. T he

13 Parties are now seeking this Court’s approval of the detailed settlement agreement arrived at

14 through extensive additional negotiation since that date, resolving the case on a class basis.

15

Through the present Settlement, Samsonite proposes to pay $850,000 to all 89 of the class

16 members to resolve all outstanding wage and hour claims under the Fair Labor Standards Act,

17 California, and New York law. This is in addition to the approximate total amount of $116,000

18 that Samsonite paid to certain class members as part of separate agreements that were negotiated

19 after the present lawsuit was filed. It is submitted that this is an exceptional result, especially

20 given circumstances that diminished the potential class members and their recovery, the inherent

21 litigation risks, and the additional litigation risk created by the bankruptcy filing by Samsonite

22 during the pendency of this case. The settlement is fair to the class as it provides compensation

23 for overtime hours, liquidated damages, interest, using advantageous assumptions under federal

24 and state laws – with no reversion to Defendants. As such, the agreement meets the Ninth

25 Circuit’s standards for approval, articulated in Officers for Justice v. Civil Service Com'n of City 26 and County of San Francisco, 688 F.2d 615, 625 (9th Cir. 1982).

27

Based on the reasons stated herein, the Parties request that the Court certify the class for

28 settlement purposes, appoint Class Counsel, and grant preliminary approval of this settlement.

1

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1 NOTICE OF MOTION, MOTION, AND MEMORANDUM OF POINTS AND

2

AUTHORITIES

3 NOTICE OF MOTION AND MOTION
4 Notice is hereby given that on December 18, 2009 at 9:00 a.m. in the Courtroom of the

5 Honorable Jeffrey S. White, this Court will hear the parties’ Joint Motion for Preliminary

6

Approval of the Stipulation of Settlement Between Plaintiffs and Defendants.2 Among other

7 reasons, the parties move that this Court should swiftly and without reservation certify a class and

8 grant preliminary approval, because: the parties’ settlement agreement is fair to the Plaintiff class;

9 there was a prior settlement agreement between Defendants and the Department of Labor which

10 limits the recovery which many Plaintiffs could recover in this case; Defendant has already

11

implemented a reclassification of all Store Managers to be non-exempt; and, because of

12

Defendant Samsonite Company Stores, Inc.’s bankruptcy filing in September of 2009, and

13

plaintiffs’ observations regarding the financial pressures on the industry as a whole, which affect

14

Plaintiffs, who need the settlement disbursements now. A Proposed Order is attached hereto.

15

MEMORANDUM OF POINTS AND AUTHORITIES

16

I. INTRODUCTION

17

This is a wage and hour, misclassification case under the Fair Labor Standards Act, 29

18

U.S.C. §216 (FLSA), and California and New York law, in which, after the proposed settlement

19

is approved, 89 S tore Managers of an entity that filed for Chapter 11 bankruptcy during the

20

pendency of this case3 (Samsonite Company Stores, Inc.4) will have recovered nearly a million

21

dollars, plus injunctive relief: to wit – the Store Manager position has now been reclassified as

22

non-exempt for all employees going forward. Especially in light of the fact that Defendants

23

24

2 The parties have filed, concurrently with this Motion, a separate joint motion seeking this hearing date. 3 This entity is scheduled to emerge from bankruptcy, and may do so prior to the final approval hearing in this matter.

25

A Plan of Reorganization, was approved by the bankruptcy court, effective November 4, 2009. See Declaration of

Daniel H. Lee (“Lee Dec.”), and Exhibit 1 attached thereto. The bankruptcy court has vacated the automatic stay that

26

was previously imposed by section 362 of the Bankruptcy Code when SCS filed for Chapter 11 bankruptcy on or about September 2, 2009. Id.

27

4 Plaintiffs maintain, and Defendants dispute, that Samsonite Company Stores’ parent, Samsonite Corporation, is also an employer of Plaintiffs and the class based upon the expansive definition of “employer” under the FLSA and

28

California and New York wage/hour law – however, this issue is outside the scope of this Motion. All parties seek resolution now.

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Samsonite Company Stores, Inc., and Samsonite Corporation (hereinafter, “Samsonite”) settled a

3

misclassification case with the U.S. Department of Labor regarding Store Managers and paid

4

hundreds of thousands of dollars of relief to many class members in 2007 (who waived all prior

5

claims) (see Exhibit J to Joint Stipulation of Settlement and Release Between Plaintiffs and

Defendants (hereafter, the “Settlement” – attached as Exhibit 1 to this Motion)), the deal is an 6

abundantly fair one for the class. 7

After this suit was filed, Samsonite already, voluntarily paid over $116,000 to a number of 8
Store Managers nationwide and reclassified all of them as non-exempt. See Settlement. Through 9
the present Settlement, Samsonite proposes to pay an additional $850,000 to class members to 10
resolve all outstanding wage and hour claims under the Fair Labor Standards Act and California 11
and New York law. See Settlement, Exhibit D. Even after reasonable attorneys’ fees on the total 12
of more than $966,000 of recovery are deducted, as well as all litigation and settlement costs, the 13
deal will result in an average additional payment for each of these individuals of nearly $6,300 (in 14
addition to $1,300 each, on a verage, already paid) – an exceptional result, especially given 15
circumstances of this case. Declaration of Bryan Schwartz. This settlement provides 16
compensation for overtime hours, liquidated damages, interest, and, for California and New York 17
class members, recovery for a hos t of state claims, using the most advantageous assumptions 18
under each state’s laws. See Settlement. As discussed infra, Courts routinely approve wage/hour 19
settlements in comparable cases resulting in far less recovery to individual class members. To 20
ensure the recovery for the class against a company in difficult financial circumstances, the Court 21
should grant preliminary approval of this settlement without delay. 22
Apart from the practical concerns of proceeding against an entity that filed for bankruptcy 23
during the pendency of this case, which has previously settled with the Department of Labor, the 24
Settlement is a good result for the class in light of Plaintiffs’ litigation risk in the case. Schwartz
25 Dec. Samsonite has denied and continues to deny all of the Plaintiffs’ misclassification, itemized
26 wage statement, meal and rest period, vacation, and other claims and further argues and asserts
27

28

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2

that, even if Samsonite’s classification system and pay practices were found unlawful, its conduct

3

was not willful, as discussed infra. Dkt. #21.

4

The parties have conducted discovery prior to arriving at the instant settlement, including

5

the exchange of dozens of interrogatories and admissions, thousands of documents, and a host of

depositions of top company managers, a former top manager, and one Plaintiff. Schwartz Dec. 6

Ultimately, the terms of the settlement were entered into after in lengthy, arms-length 7

negotiations leading up to and through two full days of mediation with the Court-appointed 8
mediator, Baldwin Lee. Id.. See also Lee Dec., at Exhibit 2. Baldwin Lee heads the Employment 9
Law Group in Northern California for the law firm of Allen Matkins. Lee Dec, Exh. 2. He has 10
extensive experience litigating, and serving as a mediator, in wage and hour claims. Id. Mr. Lee 11
earned his undergraduate degree from Stanford University and his law degree from the University 12
of Chicago Law School Id. After law school, he clerked for U.S. District Judge Ginger Berrigan. 13
Id. Prior to and during this mediation, extensive and confidential compensation information was 14
disclosed by Defendants to Plaintiffs, which was the basis of the calculations of recovery for each 15
class member in the settlement reached. Schwartz Dec. Eventually the mediator, Mr. Lee, made a 16
mediator’s proposal, which the Parties both accepted on or about November 5, 2009. Lee Dec. 17
The parties recognize that the final settlement reached is less than the perfect outcome for 18
either party – zero liability sought by Defendants, or full relief sought by Plaintiffs, respectively – 19
but represents a fair compromise and an exceptional result for the Plaintiff class given: the 20
number of claims excluded by prior settlement; the changes Samsonite has already implemented; 21
the litigation risks; the facts that Samsonite filed for Chapter 11 bankruptcy during the pendency 22
of this case, and the financial condition of the Plaintiffs (some of whom are being laid off as a 23
result of Samsonite Company Stores’ bankruptcy filing). Schwartz Dec. 24
II. FACTUAL BACKGROUND
25 A. Defendants have reclassified the Store Manager position.
26 In Department of Labor (“DOL”) case number 1444551, i n January 2007, Samsonite
27 reached a settlement with the DOL and in connection with that case, it thereafter reclassified

28

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some of its Store Managers as non-exempt. See Settlement, Exh. J. Since this case was filed,

3

Samsonite has reclassified all of its remaining Store Managers nationwide to be non-exempt

4

employees. See Settlement, at Section XIV.

5

B. Plaintiffs have developed a substantial factual record warranting certification

6

and justifying the settlement.5

7

Declarations and deposition testimony taken to date establishes that Plaintiffs and the

8

class members are/were similarly-situated and meet the standards for certification for settlement

9

purposes, in that:

10

1) the 89 employees subject to the settlement all worked as exempt Store Managers

11

during the putative class period6 (see Settlement, at Section II and Exhibit B);

12

2) Plaintiffs Pearson and Newsham worked as exempt Store Managers during the

13

relevant period and share the claims of the putative class members (Schwartz Dec.,

14

Exhibit 1, Plaintiffs’ and Other Store Managers’ Declarations (“Store Managers’

15

Decs.”));

16

3) Plaintiffs submit that (and Defendants dispute) Defendants have followed common

17

policies and practices with respect to all of the putative class members – including a

18

job requirement of all Store Managers that they work at least 45 hours per week – such

that, extensive unpaid overtime work is common to the entire class for the period in 19

which they were classified as exempt (Schwartz Dec., Exhibit 2, Fed.R.Civ.P. 30(b)(6) 20

Deposition of Lucy Rose, Excerpts (“Rose Depo.”), at p. 114); and 21

22

5 Though Defendants stipulate to certification for settlement purposes (Settlement, at Section IV), Defendants do not

stipulate to Plaintiffs’ arguments articulated in this section, and expressly dispute many of them. See infra.

23

6 The Settlement calculates the class period as three years from the date the statute was tolled (September 2, 2009)

24

(Settlement, at Section II.h) for all class members who did not previously opt-into this case who worked for Samsonite outside of California and New York, based upon the maximum permissible recovery for a willful violation

25

under the FLSA. 29 U.S.C. § 255(a); McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988). The covered period was calculated as four years from the date the suit was filed for all class

26

members in California, and six years from the date the suit was filed for all class members in New York. See Settlement, at Section II.h. California and New York have four-year (under Cal. B.P.C. §17200) and six-year (N.Y.

C.L.S. Labor §198(3)) statutes of limitations, respectively, regardless of willfulness, and the statute would be tolled at

27

the time the class action was first filed, i.e., March 24, 2009, under Crown Cork Seal Company, Inc. v. Parker, 462

U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), rather than the opt-in date or the date the FLSA period was

28

explicitly tolled, i.e., September 2, 2009.

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4) Plaintiffs submit that (and Defendants dispute) common issues predominate as to

3

putative class members’ misclassification claims, which Plaintiffs would seek to

4

establish with common proof (see, e.g., Schwartz Dec., Exhibit 3, Fed.R.Civ.P.

5

30(b)(6) Deposition of Fred Peirce, Excerpts (“Peirce Depo.”), at pp. 136-154).

6

1. Plaintiffs would argue, if the matter were not resolved through settlement, that

7

certification is appropriate and liability warranted as a matter of law concerning Store

Managers who fail to meet the executive exemption test because they did not supervise

8

80 or more hours of subordinates’ time each week, which can be established through

common proof. 9

10

As to the predominance of common issues, Defendants agree that the basis for their

11 claimed exemption as to the Plaintiffs and putative class members is exclusively the executive

12 exemption. Schwartz Dec., Exhibit 4, F ed.R.Civ.P. 30(b)(6) Deposition of Robert Cooper,

13 Excerpts (“Cooper Depo.”), at pp. 165-168. The executive exemption, under the FLSA,

14 California, and New York law requires that each exempt “employee must customarily and

15 regularly direct the work of at least two or more other full-time employees or their equivalent.” 29

16 C.F.R. §541.100, et seq.; Cal. Code Regs., tit. 8, § 11070(1)(A)(1); 12 N.Y. Comp. R. & Regs. §

17 141-3.2(c)(1)(i). Plaintiffs claim that Defendants settled in 2007 w ith the Department of Labor

18 (DOL) after they were admonished that the Department had found the executive exemption was

19 inapplicable to all or most of Defendants’ store managers because they did not customarily and

20 regularly manage two or more full-time employees or their equivalents. Cooper Depo., at pp.

21 148-149 (citing DOL settlement). Plaintiffs claim that after the DOL settlement, Samsonite did

22 not immediately reclassify all of its Store Managers who lacked supervision over two or more

23 full-time employees or equivalents, but has done so gradually, with many Store Managers

24 (including Plaintiffs) reclassified after this suit was filed. Id. at 149-154. Plaintiffs claim that

25 Defendants possess and have discussed among upper management all of the centrally-kept data

26 demonstrating which Store Managers were not supervising adequate subordinates’ hours, and

27

28

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when certain Store Managers who formerly supervised more than 80 hour s of time ceased to

3

routinely do so. Id. at 159.

4 2. Plaintiffs would argue, if the matter were not approved for settlement, that certification

5

and liability are appropriate, class-wide, because the executive exemption cannot apply

to Samsonite’s Store Managers, since they do not meet the duties test of the exemption.

6 If the settlement is not approved, Defendants will argue that class members who oversaw

7 two or more employees or their equivalents were properly classified as exempt under the

8 executive exemption. Cooper Depo., at pp. 165-168. However, Plaintiffs and putative class

9 members in this case, and even former Samsonite Store Managers whose own claims fall outside

10

the statute of limitations,7 testify that all across the country, in California, New York, Florida,

11 Texas, Wisconsin, and Nevada, their primary responsibility was fulfilling sales goals set by their

12 district and regional managers and providing customer service. See Store Managers’ Decs.

13 Plaintiffs estimate that they spent 2/3 to 90% of their time on sales, and testify that their store

14 manager duties were not very different from the responsibilities performed by their non-exempt

15 co-workers. Id. All were required to make sales goals their top priority, and spent the vast

16 majority of their time on the sales floor together. Id. They testify that when not engaged in sales,

17 they (like their co-workers) spent significant time cleaning the store, changing light bulbs or

18 fixture displays, performing other maintenance tasks, and physically restocking merchandise,

19 based on instructions in the corporate manuals over which they had little or no control. Id. They

20 testify further that they did not have the final say on any hiring or termination decisions, and that

21 coworkers were usually hired by higher level managers based on those managers' judgment. Id.

22 The witnesses testify that as store managers across the country at Defendants, they spent very

23 little time on personnel matters overall, had no authority over setting and adjusting subordinates'

24 rates of pay, and only limited discretion in setting employees' hours of work. Id. They testify that

25 they did not take action based upon employee complaints and grievances, but rather, had to report

26

27

7 Plaintiffs would argue that these non-party witnesses’ consistent testimony, despite the lack of any potential

28

personal financial recovery, makes Store Managers Jhon Velasquez, Thomas Upham, and Alexis Cooper especially credible.

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these to their managers and/or human resources officials, and likewise did not monitor or

3

implement legal compliance measures. Id. Store managers nationwide were not primarily

4

responsible for keeping production and sales records, according to Plaintiffs’ declarations,

5

because this data was maintained electronically and reviewed by upper management. Id. Plaintiffs

6

contend that they did not plan or control the budget for their stores, and ultimately, store

7

managers’ jobs were much more similar to those of assistant managers than to the company's true

8

executives. Id. The foregoing assertions are disputed by the Defendants.

9

Plaintiffs maintain that Samsonite’s executives never objectively studied what Store

10

Managers actually did on a day-to-day basis and never reviewed the amount of time store

11

managers spent on managerial duties. Cooper Depo., at pp. 160-161, 171-172. If the matter were

12

not resolving amicably, Plaintiffs would argue, on a class-wide basis, that Defendants cannot

13

meet their burden to prove the executive exemption, as a matter of law, without proof that the

14

classification was properly based upon t he nature of store managers’ actual duties – proof that

15

Defendants do not have. Id.

16

Beyond the time spent on non -exempt work, Plaintiffs would argue, if the matter

17

proceeded and did not settle amicably, that the relative importance of non-exempt work

18

performed by the Store Managers far outweighs any incidental executive-level responsibilities

19

they possess. Plaintiffs argue that Mr. Cooper felt it was important, as a matter of company

20

policy, that the Plaintiffs and putative class members “be the top salesperson in the store.”

21

Schwartz Dec., Exhibit 5, David Fuller Deposition, Excerpts (“Fuller Depo.,” at Fuller Depo.

22

Exhibit 3), at pp. 144-145. Defendants’ records produced in discovery show that Store Managers

23

company-wide were accountable for their sales figures like other store employees. Cooper Depo.,

24

at pp. 139 -140 (citing Cooper Depo. Exh. 12). Plaintiffs argue that Mr. Cooper, as the

25

Fed.R.Civ.P. 30(b)(6) deponent, admitted the importance of store managers’ sales objectives.

26

Cooper Depo., at pp. 114-116, 120-123 (citing Cooper Depo. Exh. 8) (stating selling time would

27

not be less than 2/3 of store managers’ time, and that their first priority is customer service); 134

28

(citing Cooper Depo. Exh. 11) (stating that District Managers and Area Managers review store

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managers’ sales performance along with all other employees’ sales performance). According to

3

Plaintiffs, Mr. Cooper acknowledged that store managers at Defendants are evaluated “on

4

following the sales process, sales guidelines, that we expect them to follow.” Id. at pp. 129-130.

5

Were the matter to proceed through litigation, and not settle, Plaintiffs would argue using

6

common proof that, company-wide, the Store Managers’ core job responsibilities were the same

7

(or virtually the same) as those of the non-exempt store employees. Cooper Depo., at pp. 62-66,

8

68 (citing Cooper Depo. Exh. 5). The exempt store managers’ job profile at Samsonite was

9

literally the same job description as that for non-exempt assistant managers and those already

10

reclassified non-exempt store managers – with the first responsibility listed as “Drive

11

sales/customer service,” and the second and third listed key responsibilities requiring that they

12

“Consistently deliver brand enhancing store standards that create a positive customer experience,”

13

and “Achieve established sales and profit plan.” Id. All (exempt and non-exempt) employees in

14

charge of stores – including non-exempt “supervisors” (aka “third-keys”), “assistant managers,”

15

and already reclassified, non-exempt store managers – are involved in approving checks, giving

16

refunds, handling returns, and counting and depositing a store’s funds. Id. at 66-67.

17 3. Plaintiffs would argue, if the settlement was not approved, that the extent of centralized

18

control and common policies, practices, and procedures concerning Store Managers

both warrants certification and demonstrates that they Store Managers lacked

19

substantial discretionary powers.8

20

Plaintiffs would further argue using common proof that the extent of centralized policies,

21 practices, and procedures exercising control over all of the stores both warrants class certification

22 and evidences that Store Managers were improperly misclassified as exempt executives.

23

24

8 In New York and California, employers must prove that the executive exemption is warranted because the

employees in question “customarily and regularly exercise discretionary powers.” 12 N.Y. Comp.Codes R. & Regs.

25

tit. 12, § 141-3.2(c)(1)(i)(d); Cal.Code Regs., tit. 8, § 11070(1)(A)(1). See also Balce v. Lucky Chances, Inc., 2008

WL 564792, *3 (N.D. Cal. February 28, 2008) (White, J.) (citing Sav-On Drug Stores, Inc. v. Sup.Ct., 34 Cal.4th

26

319, 338 (2004)). While discretionary powers are not explicitly part of the FLSA’s test under new Department of Labor (DOL) regulations, they remain a relevant consideration in analyzing whether employees’ primary duties are

27

managerial, when considering the executive exemption under the FLSA. See, e.g., Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1262-1263, 1270 n.57 (11th Cir. 2008) (“[T]he new [DOL] regulations do not preclude, and are

28

consistent with, our consideration of the frequency with which an employee exercises discretionary powers in our primary duty analysis.”).

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Plaintiffs’ eight submitted declarations corroborate that there were identical company practices in

3

six completely different regions of the country – and should be enough, standing alone, to warrant

4

FLSA certification. Store Managers’ Decs.9

5

If not resolved amicably, Plaintiffs would contend that each store’s goals are set centrally

6

by upper management. Cooper Depo., at p. 183. The store managers “set” their subordinates’

7

goals only based upon a company-prescribed formula relating to the numbers of hours worked

8

(id. at pp. 184-185), and following the company’s policy concerning the setting of sales goals. Id.

9

at p. 185. M oreover, decisions regarding the stores’ budgets (and even whether stores remain

10

open or closed on a given day) are centrally directed by the company’s top executives. Id. at pp.

11

22-26. Store managers do not have input into their budgets. Id. at 26. All stores, among other

12

things: have the same training program (id., at pp. 181 -182); have the same performance

13

evaluation process (id., at p. 182); report to same upper management (id., at p. 187); have the

14

same, largely-automatic merchandising (id. at pp. 85 -89; see also Fuller Depo., at pp. 48 -49);

15

have centrally planned, extremely detailed store design (Cooper Depo. at 93-98); and, participate

16

in national sales contests. Id. at pp. 137 -138. All Store Managers follow the same company

17

manuals. Peirce Depo, at pp. 51-53. Policies and procedures for petty cash, bank deposits, and all

18

daily store operation, are included in Defendants’ policy and procedures manual. Cooper Depo. at

19

pp. 72-73.

20

Along the same lines, Plaintiffs would argue that complaints regarding wage/hour and

21

EEO regulations are handled above the store managers’ level. Id. at pp. 78-79. Store Managers

22

need approval from their higher-ups if they want to miss part of a day. Id. at 123-125 (citing

23

Cooper Depo. Exh. 9). Store managers have to go through multiple levels of management to:

24

have repairs done in their stores (id., at pp. 45 -48 (citing Cooper Depo. Exh. 2); close a store

25

26

9As to the point of law regarding the relatively small number of declarations needed to justify FLSA certification, see, e.g., Beauperthuy v. 24 Hour Fitness, USA, Inc., 2008 WL 793838, *3 (N.D. Cal. March 24, 2008) (Conti, J.)

27

(ten declarations found sufficient for conditional certification); Rees v. Souza’s Milk Transp., Co., et al., 2006 WL 738987, **3-4 (E.D. Ca. Mar. 22, 2006) (two); DeAsencio v. Tyson Foods, Inc., 130 F.Supp.2d 660, 663 (E.D. Pa.

28

2001) (four); Camper v. Home Quality Mgmt., Inc., 200 F .R.D. 516, 529 (D. Md. 2000) (four); Guzman v. Varco Intern., Inc., 2002 WL 32639237 at *3 (S.D. Tex. May 30, 2002) (three).

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temporarily, during regular business hours, for an unusual occurrence (id. at 48-53 (citing Cooper

3

Depo. Exh. 3)); throw out a non-functioning piece of equipment (id.at 53-56 (citing Cooper Depo.

4

Exh. 4); and to obtain approval for overtime hours by non-exempt employees (id. at 61).

5

Plaintiffs, if forced to litigate the matter, rather than settling, would argue using common proof of

6

Defendants’ policies that Store Managers are not trusted even to pick their color of their own

7

shoes during working hours. Id. at pp. 98-109 (citing Cooper Depo. Exh. 7).

8

Furthermore, Plaintiffs would argue, using common proof, that the Store Managers are not

9

relatively free from supervision, and that, on the contrary, District Managers, who oversee Store

10

Managers, according to Defendants’ 30(b)(6) testimony, are “constantly” in stores. Cooper

11

Depo., at p. 132. T hey are always “spending a significant amount of time on a sales floor in a

12

store, along with a Store Manager, on a weekly basis.” Id. However, these true executives (i.e.,

13

District Managers) do not login to the register and track their sales goals and selling hours with a

14

40-hour week, and unlike Store Managers, they are not evaluated on their sales productivity. Id.

15

Rather, District Managers and Area Managers, among other upper management personnel,

16

closely review Store Managers’ and all store employees’ sales productivity on a regular basis. Id.

17

at 134 (citing Cooper Depo. Exh. 11).

18

If the matter did not settle, Plaintiffs would attempt to prove with their testimony and

19

Defendants’ officials’ statements, applicable to the entire class, that Store Managers lacked

20

hiring/firing authority sufficient to justify the executive exemption. Store Managers’ Decs.

21

Plaintiffs submit that Store Managers cannot: advertise a position; add a position; finalize a hiring

22

decision; extend an offer of employment; or determine the rate of pay. Cooper Depo., at pp. 34-

23

38. For any disciplinary action, the next level of management is consulted – and if it is any kind

24

of “severe” discipline, HR must also be involved. Id. at pp. 39 -40. HR and upper management

25

must approve all promotions, raises, and terminations. Id. at pp. 40-42.

26

All of the foregoing arguments are disputed by the Defendants.

27

28

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1

4. If the matter proceeded through litigation, Plaintiffs would seek to show willfulness and

2

lack of good faith through common proof of prior wage/hour cases against Samsonite.10

3

Finally, Plaintiffs would argue that certification is appropriate because Plaintiffs would

4

use common proof to show willfulness and lack of a good faith defense - namely, the Labor

5

Department’s prior findings and Defendants’ settlement with the Department. Plaintiffs would

6

argue that Defendants’ violations were willful because Defendants were engaged in an ongoing

7

cost-benefits analysis regarding reclassification, despite knowing they were violating the law.

8

Cooper Depo., at pp. 1 49-154, 159; Peirce Depo., at pp. 136 -154. Moreover, Defendants had

9 other related wage claims filed against them in Oregon (Cooper Depo., at p. 163) and Wisconsin.

10 Schwartz Dec., at Exhibit 6, Wisconsin Wage Complaint of Thomas Upham. These arguments

11 currently are, and would continue to be, disputed by the Defendants.

12

C. Defendants Have Developed A Factual Record Demonstrating Plaintiffs’

13

Litigation Risks, Warranting Settlement.

14 In addition to the litigation risk that arose when Samsonite Company Stores filed for
15 Chapter 11 bankruptcy in September of 2009, Defendants have developed a factual record which
16 they contend will enable them to argue that Plaintiffs’ and the putative class members’ duties
17 justified the executive exemption, or, alternatively, that any misclassification was not willful.
18

19

1. Samsonite would argue, if the matter was not amicably resolved, that Store

20

Managers were properly classified.

21 Defendants note that the Store Managers’ job description states that they are expected to:
22

23

• Supervise and train sales associates in the performance of their duties

24

10 See Chao v. A-One Medical Services, Inc., 346 F.3d 908, 919 (9th Cir. 2003) (“[W]e find probative A-One's former

FLSA violations, even if they were different in kind from the instant one and not found to be willful. The fact that A-

25

One previously had run-ins with the Labor Department certainly put A-One and Black on notice of other potential

FLSA requirements.”) (citing Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003); Hodgson v. Cactus Craft of Arizona,

26

481 F.2d 464, 467 (9th Cir.1973) (evidence of prior investigations establishes willfulness); Horrocks v. Daggett County, 2006 WL 2598331, at **5-6 (D.Utah Sept. 11, 2006) (citing Chao, holding that prior FLSA violations can

27

demonstrate willfulness); Baker v. D.A.R.A. II, Inc., 2008 WL 191995, at **5-7 (D.Ariz. Jan. 22, 2008) (same); Adams v. Inter-Con Sec. Systems, Inc., 242 F.R.D. 530, 542 (N.D. Cal., 2007) (same, citing Richland Shoe); Wren v.

28

RGIS Inventory Specialists, 2007 WL 4532218, *10 (N.D.Cal. December 19, 2007) (Spero, M.J.) (other litigation against employer suggests willfulness).

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1 • Assign hours to store associates

2

• Conduct regularly scheduled performance reviews with all eligible sales associates

• Have authority to make hiring and termination decisions, and

3

• Efficiently manage the store.

4

Cooper Depo., at Exh. 5.

5

Defendants argue that the duties outlined in Samsonite’s company manual and the Code of

6

Federal Regulations were carried out by each store manager, as described by a third party witness,

7

David Fuller. Samsonite submits that Mr. Fuller supervised all of Samsonite Company Stores’

8

(“SCS”) high-end “Black Label” retail stores (which include the stores that Mr. Newsham and

9

Ms. Pearson managed). Defendants assert that his testimony establishes that Store Managers:

10

• were responsible for supervising and training the assistant managers and other employees

11

who worked at their respective stores (Fuller Depo. at 79.);

12

• were responsible for customer relations (id. at 80);

13

• approved returns or exchanges (id. at 81);

14

• dealt with customer complaints (id. at 82);

15

• were responsible for ensuring that employees who worked in their stores met their

16

individual sales goals, and managed their teams’ sales performance (id. at 85-86);

17

• were responsible for setting the schedules for the people that worked in their store (id. at

18

89);

19

• were expected to monitor and analyze the expenses for their respective stores (id. at 90);

20

• were responsible for “identifying the need and presenting the case” for hiring more people

21

in their respective stores (id. at 90-91);

22

• had the authority to reduce the workforce in their respective stores (id. at 92);

23

• recruited new sales associates, including reviewing job applications, deciding who to

24

interview, and who to offer a job (id. at 93 - 95);

25

• were responsible for disciplining employees with verbal and written warnings. (id. at

26

100);

27

28

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2

• were responsible for monitoring punctuality of the employees and workplace safety (id. at

3

101 – 103);

4

• engaged in outside networking activities on Samsonite’s behalf (id. at 107 – 108);

5

• and, were ultimately held responsible for the performance of their stores. Id. at 118.

6

Defendants emphasize the following testimony by Mr. Fuller:

Q: Based on your interaction with the store managers and your knowledge of their

7

jobs, were store managers the people that were ultimately held responsible for the

performance of their stores?

8

A: Absolutely. (Fuller Dep. at 118.)

9

10

***

11

Q: Mr. Fuller, did store managers have the responsibility and authority to make

12

suggestions and recommendations as to hiring, firing, disciplining, promotion and/or change of status of employees?

13

A: Yes.

14

Q: Whatever suggestions or recommendations that were made, were those given significant weight?

15

A: Yes. They were. Fuller Depo, at pp. 144 - 145.

16

Based on the foregoing, Defendants maintain that Mr. Fuller testified that both Ms.

17

Pearson and Mr. Newsham were properly categorized as exempt employees. He stated that “they

18

both had a lot of managerial duties to deal with.” Fuller Depo.¸at p. 114.

19

20

2. Defendants would argue, if the matter were not settled, that Plaintiffs’ claims that they should have been classified as non-exempt employees are not

21

credible.

22

Defendants summarize Plaintiffs arguments as follows, that: (1) their primary duty was

23 sales, not management; (2) they did not customarily and regularly supervise employees for 80 or

24 more hours in a week; (3) they spent significant time cleaning the store, changing the light bulbs

25 of fixture displays, and physically restocking merchandise; and (4) they did not exercise

26

significant discretion and independent judgment.11 See, e.g., Store Managers Decs. In sum,

27

11 Defendants submit that Store managers who perform clerical work can still be properly classified as an exempt

28

employee – even when they are engaged in such activities more than 50 percent of the time. A manager “in a retail establishment … may have management as their primary duty even if the assistant managers spend more than 50

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1

2

Plaintiffs contended that they, and the other store managers, were primarily salespeople, not

3

executives. Id.

4

In response, Defendants would make the following arguments, all of which are contested

5 by Plaintiffs. First, Plaintiffs’ claims are directly rebutted by the testimony of David Fuller, cited

6 supra. Second, Defendants would argue that Plaintiffs claims are not credible. Defendants submit

7 that Mr. Newsham was hired by Samsonite as a store manager, paid $77,225 per year to run a

8 high-end store on M adison Avenue. Store Manager Decs., at Newsham Dec. Samsonite would

9 argue that it hired Mr. Newsham because of his experience managing stores. See Lee Dec., at

10 Exhibit 3, Newsham Employment Application. Mr. Newsham was “responsible for store

11 operations” at Bombay for two years, supervised three department managers at Century 21

12 Department stores for one year, was responsible for operating two stores locations (in addition to

13 training staff and motivating sales staff) at Cingular Wireless for one year, and was responsible

14 for retail operations at Tekserve for one year. Id.

15

Defendants contend that, in rating his own performance, Mr. Newsham indicated in his

16

review that he thought “outside the box to generate sales and to motivate store staff,” and enjoyed

17

“finding partners that will accept a revenue sharing marketing relationship.” Lee Dec., at Exhibit

18

4, Newsham Evaluations. Mr. Newsham indicated that he “cut payroll and significantly cut

19

storage fees.” Id. He was focused on “sales generation through networking.” Id. He stated that “as

20

a manager, I focused on growing the business and growing the team.” Id. Mr. Newsham states

21

that he worked closely with the Madison Avenue Business Improvement District, made new

22

inroads with vendors, attended several marketing events, and found a solution for better storage

23

and customer delivery needs. Id.

24 Based on the foregoing, Defendants would argue that Mr. Newsham was given high level
25 responsibilities and carried out those responsibilities in running the Madison Avenue store.
26

27

percent of the time performing nonexempt work such as running the cash register.” 29 C .F.R. § 541. 700(c)

28

(emphasis added).

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2

Likewise, Defendants argue that Ms. Pearson also functioned at a high managerial level.

3

Ms. Pearson was hired to run one of the flagship Black Label stores for Samsonite in San

4

Francisco. Samsonite would argue that Ms. Pearson is being paid approximately $70,000 pe r

5

year. Store Managers’ Decs., at Pearson Dec. Similar to Mr. Newsham, Defendants would argue

6

that Ms. Pearson also has extensive experience in managing retail stores. Lee Dec., at Exhibit 5,

7

Pearson Employment Application. For instance, as an assistant store manager at Century 21

8

Department Stores, where she was paid approximately $85,000 p er year, she was in charge of

9

“running of store operations.” Id.

10

In her performance evaluations, Ms. Pearson was praised for her leadership skills. Lee

11 Dec., at Exhibit 6, Pearson Performance Evaluations. Ms. Pearson’s supervisor commented that

12 Ms. Pearson has the respect to all store associates, expects excellence from all associates and

13 holds them accountable for their actions. Id. Ms. Pearson was praised for her “good job

14 maintaining, hiring and training her staff.” Id. It was noted that she “works independently with

15 every little direction needed from the District Managers.” Id. Ms. Pearson stated that she has

16

“strong leadership skills” and that she was a “good manager.” Id.12

17

3. Defendants would argue, if the matter were not settled, that, the Store Managers either customarily or regularly directed the work of two or more

18

other employees, or were converted to a non-exempt status.

19

Defendants would argue that the Store Managers who were classified as exempt

20 employees, such as Pearson and Newsham, customarily or regularly directed the work of two or

21 more other employees. Following an investigation conducted by the Wage and Hour Division of

22 the DOL in or about 2006, Defendants entered into a settlement agreement on a national basis to

23 avoid the potential cost and expense of litigation. See Settlement, Exh. J. One of the key factors

24 Defendants state they considered in determining whether a store manager was to be classified as

25 exempt or non-exempt was whether the Store Managers customarily and regularly supervised the

26 equivalent of two or more full time employees (i.e. full time indicates as working 40 hour s a

27

12 Defendants would also argue that any testimony by other opt-in claimants to describe their alleged daily activities

28

is suspect because, among other reasons, opt-in Plaintiffs Thornton, Shaker, and Conn were terminated. Store Managers’ Decs.

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1

2

week) in a workweek – 80 hours of supervision total per workweek. Id. Defendants contend that,

3

if the matter did not resolve amicably, they would utilize the extensive records in their possession,

4

some of which have been produced to the plaintiffs, to attempt to show that all of its Store

5

Managers “customarily and regularly” supervised a total of 80 hours of work per workweek.

4. Defendants would argue, if the matter were not settled, that, even if Store

6

Managers were misclassified, they were classified as exempt (and ultimately

7

reclassified as non-exempt) in good faith, and that therefore, they are not

liable under the FLSA.

8 If the matter were not resolved amicably, Defendants would argue the “good faith
9 defense,” under 29 U.S.C. Section 259(a), which provides that employers are not liable for the
10 extended, three-year statute of limitations under the FLSA if they “prove that the act or omission
11 complained of was in good faith in conformity with and in reliance on any written administrative
12 … approval, or interpretation, of [the Wage and Hour Division of the Department of Labor.”
13 General Electric Co. v. Porter, 208 F.2d 805, 816-817 (9th Cir. 1953); Frank v. McQuigg, 950
14 F.2d 590, 598 -599 (9th Cir. 1991). Defendants would argue that when it was determined that
15 certain store managers were not customarily or regularly directing the work of two or more other
16 employees, Samsonite Company Stores converted those store managers to a non-exempt status
17 pursuant to the “80 hour” guideline stated in the settlement agreement that Samsonite entered
18 into with the DOL. Cooper Depo., at pp. 149-152, 157-158. Defendants would argue that after
19 the DOL settlement, Samsonite conducted periodic internal audits. Id. Samsonite contends that
20 they reviewed the hours worked by the non-managerial employees at each store, and Defendants
21 maintain that the 80 hour guideline they followed was based, specifically, “on discussions that
22 [Samsonite] had with the Department of Labor” in connection with the DOL settlement. Id.
23 Defendants also claim that they have examined whether the Store Managers are performing
24 managerial duties that are outlined in the company’s job descriptions, such as interviewing,
25 hiring and firing, and coaching the employees, and made a decision whether to convert each
26 Store Manager to a non-exempt employee based upon such. Peirce Depo., at pp. 137 – 142, 149.
27

28

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2

Based on the foregoing, Defendants would also argue that Defendants cannot be found to

3

have acted willfully, which, Defendants believe, would also defeat plaintiffs’ claim that they are

4

entitled to liquidated damages under the FLSA.13

5. Samsonite would argue, if the matter were not amicably resolved, that a substantial

5

portion of the class have waived most or all of their claims and are, in any event, not

6

entitled to participate in this collective/class action suit, by virtue of private releases they

signed with the company.

7 Thirty of the 89 individuals who will recover if this Settlement is approved have signed
8

agreements with Defendants since Plaintiffs filed this lawsuit, in which those thirty Store 9

10

Managers agreed to waive claims and not to participate in this suit, and for which they were paid

11 varying sums in settlement, totaling $116,251.08. See Settlement. If the matter were not resolved

12 amicably, then Defendants would argue that Store Managers executed those releases voluntarily,

13

after being made aware of the allegations in this lawsuit and their right to recover of alleged

14 unpaid wages, penalties and interest. Defendants would argue that each Store Manager was given

15 an opportunity to review the proposed release, was advised that he or she had no obl igation to
16

17

sign it, had the right to consult an attorney about it, and that no negative actions would be taken

18

against him/her for not signing it. See Horenstein v. Mortgage Mkt., Inc., 9 Fed. Appx. 618, 619

19 (9th Cir. 2001); Kelly v. City & County of San Francisco, 2008 U.S. Dist. LEXIS 108871 (N.D.

20

Cal. June 30, 2008) . Defendants’ view is that since no c lass was certified, as a constitutional

21

matter, and under existing case law, they were free to speak to the putative class members to try

22 and resolve potential claims. See, e.g., Gulf Oil Co. v. Bernard 452 U.S. 89, 101 -102 (1981).
23 Defendants would argue, if the matter were not amicably resolved, that, the ability to participate
24

25

26

27

28

13 Samsonite would argue, also, if the matter were not amicably resolved, that plaintiffs’ claim for violation of California’s meal and rest period law will fail as such a claim is not credible.

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1 in a collective action is waivable, and was properly waived by the 30 i ndividuals who signed

2 releases with Defendants.14
3

4

Plaintiffs respond to Defendants’ waivers by stating, among other arguments, that the

5

FLSA specifically prohibits such unsupervised waivers (Barrentine v. Arkansas-Best Freight

6 System (1981) 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (unwaivable statutory rights)),

7 as do Cal. Labor Code sections 206 and 206.5 (providing that an employer shall not require the

8

execution of a release of a claim or right on account of wages due). See also Gentry v. Superior

9 Court, 42 Cal.4th 443, 456 (2007) (aligning California law with Barrentine).
10 However, despite the uncertainty on t his issue, all 30 of those who already executed
11

12

separate private waivers with Samsonite are also being compensated under the present Settlement

13 according to the same formula applicable to all other class members, subtracting from their

14 proposed allocation only the amount they were actually, already paid – i.e., they receive neither

15 any windfall nor any diminishment in their settlement allocation as a result of the waivers.

16

D. Plaintiffs’ and the putative class members’ claims are addressed fairly and

17

adequately in the settlement.

18

Because Plaintiffs argue that Defendants have had a policy of a forty-five hour workweek

19

for Store Managers, the Settlement is designed to provide five hours per week during the class

20

period of overtime compensation to each class member. See Settlement, at Section XVIII.15 As

21

14 For more regarding this approach, see, e.g., Chindarah v. Pick Up Stix, Inc., 171 Cal.App.4th 796 (2009); Watkins

v. Wachovia Corp., 172 Cal.App.4th 1576, 1587 (2009) (following Chindarah).

22

15 Under the settlement, class members in New York and California recover overtime at 1.5 times their regular rate of

pay, and all other class member recover at 0.5 times their regular rate of pay (which includes a hefty median average

23

of 11.74% in commissions) (see Settlement, at Section XVIII), using the FLSA’s fluctuating workweek method,

since Defendants could argue that exempt Store Managers were salaried employees mutually understood to be paid a

24

fixed salary regardless of how many hours they worked. See 29 C.F.R. § 778.114. California’s Supreme Court, in

Tidewater Marine Western, Inc. v. Bradshaw, 14 Cal.4th 557, 572-573 (1996), while disapproving on other grounds

25

Skyline Homes, Inc., v. Dept. of Industrial Relns., 165 Cal.App.3d 239 ( 1985), held that California law does not

recognize the Federal fluctuating workweek method. See also a relevant opinion letter of California’s Division of

26

Labor Standards Enforcement, at: http://www.dir.ca.gov/dlse/opinions/1997-12-03-2.pdf. Likewise, New York law contains specific regulations for calculating overtime – none of which allow the fluctuating work week method,

27

according to Plaintiffs. Under New York law, non-exempt employees must be paid one and a half times their regular rate for hours worked over forty. 12 NYCCR 142-2.2; 12 NYCCR 142-2.16. For salaried employees, overtime is

28

calculated by dividing the weekly salary by the total hours worked per week, and multiplying by 1.5. Id. Neither New York statute nor regulation makes any mention of the fluctuating workweek method.

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2

described (in a footnote) supra, the class period used for each individual is the longest permitted

3

by law – six, four, or three years, respectively, for New York, California, and all other class

4

members. See Settlement, at II.h. If the matter had not been resolved amicably, and if Defendants

5

were to challenge these statutory periods (or the willfulness requirement for three years under the

FLSA) in future litigation, it is possible that fewer individuals would recover for less time than 6

they do under the settlement. 7

The settlement provides, in addition, that all class members be paid 10% simple interest 8
on their back overtime wages. See Settlement, at Section XVIII.16 Moreover, the settlement pays 9
each class member liquidated damages for the full three years of his/her FLSA claim (id.), to 10
which class members would not be entitled if Defendants were to prevail in their arguments that 11
their classification of Store Managers as exempt was reasonable and in good faith.17 12
California class members are paid additional amounts for the state claims raised in the 13
suit, which Defendants dispute, and which Plaintiffs are waiving in the Settlement.18 Each 14
receives compensation for three hours per week of eligibility at his/her regular rate of pay for 15
meal/rest period premiums under Cal. Labor Code §226.7 a nd 512 (see Settlement, at Section 16
XVIII), regarding which they might receive no c ompensation in the future at all, depending on 17
how the California Supreme Court rules on a pending case interpreting the state’s meal/rest 18

19

20

16 See Bell v. Farmers Ins. Exchange, 135 Cal.App.4th 1138, 1150 (2006) (“We conclude that the trial court properly

applied the 10 percent prejudgment interest rate provided by Civil Code section 3289 to the accrual of unpaid wages.

21

The enactment of Labor Code section 218.6 confirmed the propriety of this rate, which was supported by persuasive

authority prior to its enactment.”); Gelof v. Papineau, 648 F.Supp. 912, 929 (D.Del. 1986), affirmed in relevant part,

22

and vacated on other grounds, 829 F.2d 452, 456 (3rd Cir. 1987) (the forum state’s statutory rate of interest governs);

Criswell v. Western Airlines, Inc., 709 F.2d 544, 556-557 (9th Cir. 1983) (awarding California’s then-statutory rate of

23

7%). There is other authority awarding much lower rates of prejudgment interest on federal claims (e.g., the prime

rate, or T-bill rate – see, e.g., EEOC v. O’Grady, 857 F.2d 383, 391-392 (7th Cir. 1988); Western Pacific Fisheries,

24

Inc. v. SS President Grant, 730 F.2d 1280, 1289 (9th Cir. 1984)), or holding that prejudgment interest is not awarded

at all where, as here, liquidated damages are recovered in the Settlement (see, e.g., Shea v. Galaxie Lumber & Const.

25

Co., Ltd., 152 F.3d 729, 733 (7th Cir. 1998) – but see Criswell, 709 F.2d at 556-557 (case under the FLSA (ADEA,

specifically) holding that liquidated damages and prejudgment interest serve different purposes, and thus may both be

26

awarded). Regardless, the 10% simple interest paid here is abundantly fair to the class. 17 See 29 U.S.C. § 260; Bratt v. County of Los Angeles, 912 F.2d 1066, 1071-72 (9th Cir. 1990).

27

18 The parties do not address separately in this brief the merits of all of the California class’s Labor Code claims. If Plainitffs prove willful misclassification, then violations of these Labor Code sections are – Plaintiffs would argue,

28

and Defendants will assume for settlement purposes – a matter of course. See Campbell v. PricewaterhouseCoopers, LLP, 253 F.R.D. 586, 605 (E.D.Cal. 2008).

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1

2

period premium requirements.19 Each receives the maximum allowable compensation for

3

itemized wage statement penalties ($50 for the first pay period and $100 for each additional pay

4

period, up to $4,000), under Cal. Labor Code §226(e) (see Settlement, at Section XVIII), which

5

they would only recover in litigation if they could prove a “knowing and intentional” failure to

comply with California’s wage/hour laws, which Samsonite has adamantly denied throughout this 6

case. See Defendants’ Answer to First Amended Complaint. (Docket # 21) 7

California and New York class members will recover under the Settlement for alleged 8

vacation time underpayments alleged under state law by the representative Plaintiffs in the 9

Complaint, based upon a policy under which Samsonite purportedly promised to pay vacation 10

time based upon hours worked. According to Plaintiffs’ allegations, Samsonite only actually paid 11
vacation based on an assumed 40 hours per week for Store Managers, who were required to work 12
45 hours per week – and were thus shortchanged vacation accrual for at least five hours a week 13
for each week during the covered period.20 Defendants claim that, at some point, the company 14
changed its vacation policy, and that in any event, the vacation policy was not intended to be a 15
contractual obligation. Cooper Depo., at pp. 195 -196.21 Notwithstanding the disputed issue, the 16
Settlement compensates New York and California class members fully for these vacation claims. 17

18

19

19 Currently, there is a split between California Courts of Appeal between those requiring that employers ensure that

employees take breaks, and those merely requiring that breaks are made available to employees. Compare: Cicairos

20

v. Summit Logistics, Inc., 133 Cal.App.4th 949, 962-963 (2005) (employer must ensure breaks or pay premiums);

Bufil v. Dollar Financial Group, Inc., 162 C al.App.4th 1193, 1199 (2008) (following Cicairos); Amaral v. Cintas

21

Corp. No. 2, 163 Cal.App.4th 1157, 1189 (2008) (same); Zavala v. Scott Bros. Dairy, 143 Cal.App.4th 585, 591-595

(2006) (same); and Aguiar v. Cintas Corp. No. 2, 144 Cal.App.4th 121, 135 (2006) (same); with Brinkley v. Public

22

Storage, Inc., 2008 WL 4716800 (Cal.App.2 Dist.) (Nov. 5, 2008) (employer must only make available). The

California Supreme Court has accepted review of and is expected to decide this issue squarely, in Brinker Restaurant

23

Corporation, et al. v. Superior Court, 80 Cal.Rptr.3d 781 (Cal.App.4 Dist. 2008), review granted and opinion

superseded, Brinker Restaurant v. Sup. Ct. (Hohmbaum), Case Number S166350 (October 22, 2008).

24

20 Plaintiffs claim that Mr. Cooper admitted their allegations, assuming that Defendants’ published policy was in

effect. Cooper Depo., at pp. 195-196 (citing Cooper Depo. Exh. 17). He was asked and answered as follows in

25

deposition:

Q: The vacation policy, as indicated here in this Exhibit 17, plaintiffs' 3, provided for 1.54 hours for 40 hours

26

worked, but Miss Pearson worked more than 40 hours in each of the given weeks. So why wouldn't she be entitled to more than 1.54 hours in each of those weeks?

27

A. If that policy were in effect, as I'm reading this, then these hours that occurred while that policy was in effect, or vice versa, then yes, I could see where that would be the case.

28

21 But see Cal. Labor Code §227.3; Suastez v. Plastic Dress-Up Co., 31 Cal.3d 774, 780 (1982) (vacation “is not a gratuity or a gift, but is, in effect, additional wages for services performed,” or a “form of deferred compensation”).

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1

2

Plaintiffs Newsham and Pearson have FLSA retaliation claims that, following the filing of

3

the suit, they were reclassified as non-exempt (appropriately), but with a demoted rate of pay –

4

which Defendants dispute. Dkt. #14, A mended Complaint at ¶¶29-32.22 The Settlement makes

5

them whole for these claims, though Defendants would argue, if the matter proceeded, that the

Plaintiffs’ reclassification and the calculation of their pay rate were conducted in the same 6

manner as with other employees who did not raise wage/hour allegations, and were not in any 7
way retaliatory.23 8

All of the settlement allocations are reduced by 30% from the relief described, to account 9
for the litigation risk described above, and reduced by 25% attorneys’ fees and the litigation costs 10
and costs of settlement administration. Schwartz Dec. Even so, Plaintiffs and the class members 11
will recover substantially for each claim they have for every week in which they were eligible for 12
any recovery, for an average of nearly $6,300 per class member. Id. The settlement is a fair one. 13

14

E. Plaintiffs’ Observations Regarding Samsonite and the Retail Industry’s

Precarious Financial Position Recommend the Court’s Swift Preliminary

15

Approval of this Settlement.

16

As the Court is aware, Samsonite Company Stores, Inc., the undisputed employer of

17

Plaintiffs and the putative class, and a retail luggage and accessories seller, filed for Chapter 11

18

bankruptcy in September of 2009. Dkt. #32. Plaintiffs submit that there has been a sharp decline

19

in recent years in the retail sales industry nationwide, which is only now starting (experts hope) to

20

stabilize. See Schwartz Dec., Exhibit 7, 2009 A rticles Regarding Retail Industry Recession. This

21

year, Samsonite had to close some of its retail stores. As such, the money to be provided to the

22

proposed settlement class could not come at a more desperately-needed moment. See, e.g., Store

23

Managers’ Decs., at Juan Gaviria Dec., ¶9.

24

25

22 The instance of alleged retaliation against Ms. Pearson – which is of the same nature as the alleged retaliation

against Mr. Newsham, alleged in the Amended Complaint – occurred after the Complaint was amended in this

26

matter. Schwartz Dec. If the matter was to proceed in litigation, then Plaintiffs would seek to amend to add Ms. Pearson’s retaliation claim as well. Id. Regardless, the Settlement would waive Ms. Pearson’s retaliation claims along

27

with Mr. Newsham’s. 23 Nothing contained in this motion or any documents referred to or contemplated herein, nor any action taken to

28

carry out the Stipulation of Settlement, shall be construed or deemed an admission, concession or indication of fault, liability, damages, culpability, negligence, or wrongdoing on the part of the Released Parties.

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1

2

One unemployed opt-in Plaintiff in this action, for example, indicated he was laid off from

3

his job with Samsonite on October 1, 2009. Id. Since then, despite diligently searching for another

4

job, he has remained unemployed, and is relying on a meager unemployment check which has put

5

me under great financial strain. Id. He now has no health insurance and cannot afford to visit the

doctor to treat a chronic injury, and struggles to make mortgage payments on hi s 6

condominium. Id. He testifies that prompt payment of the Settlement funds would be of great 7

financial help and would assist him in getting back on his feet. Id. 8

9

III. THE COURT SHOULD CERTIFY THE CLASS FOR SETTLEMENT PURPOSES

AND GRANT PRELIMINARY APPROVAL OF THE SETTLEMENT.

10

A. Certification for Settlement Purposes Is Appropriate.

11

Wage/hour misclassification cases, in which exempt employees challenge their exempt

12

status, tend to be amenable to class and collective treatment, because the plaintiffs are challenging

13

class-wide policies regarding job classification, and evaluation of the plaintiffs' claims depends

14

on common proof. See, e.g., Kairy v. Supershuttle International, Inc., 2009 WL 1457971 (N.D.

15

Cal. May 21, 2009 ) (White, J.); Beauperthuy v. 24 H our Fitness USA, Inc., 2007 WL 707475

16

(N.D.Cal. Mar.6, 2007) (Conti, J.); Castle v. Wells Fargo Financial, Inc., 2008 WL 495705, *6

17

(N.D.Cal. Feb. 20, 2008) (Illston, J.); Gjurovich v. Emmanuel's Marketplace, Inc., 282 F.Supp.2d

18

91 (S.D.N.Y.2003); Champneys v. Ferguson Enter. Inc., 2003 WL 1562219 (S.D.Ind. Mar. 11,

19 2003). In particular, here: 1) Plaintiffs maintain and provide evidence (see supra) of the common

20 policies, practices, and procedures, and common issues applicable to all the putative class

21 members; 2) Defendants’ primary defense, the executive exemption, is the same for the entire

22 class (with a sub-group of 30 regarding whom Defendants also raise a waiver defense); and 3) the

23 Settlement agreement is fair in both its relief proposed to be provided and the procedures by

24 which it intends to operate. See Settlement. See also Kairy, 2009 WL 1457971, at *2. The parties

25 have agreed, for settlement purposes, to have this action proceed as a collective action under the

26 FLSA, 29 U.S.C. § 216(b). See Settlement.

27

28

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1

2

Moreover, as to state claims, the District Court has broad discretion to certify classes

3

concerning state claims under Rule 23, as well. Zinser v. Accufix Research Inst., Inc., 253 F.3d

4

1180, 1186 (9th Cir. 2001). Where, as here, questions of law and fact concerning the applicability

5

of the executive exemption defense are common and predominate, Rule 23 c ertification is

appropriate for purposes of settlement, as requested by the parties. Dukes v. Wal-Mart, Inc., 509 6

F.3d 1168, 1176 (9th Cir. 2007). As discussed, supra, Plaintiffs submit that Samsonite followed 7

common compensation practices throughout its stores, thus presenting common factual questions. 8

Likewise, though the parties disagree on w hether Defendants’ former classification of Store 9

Managers as exempt was lawful, Plaintiffs submit that the lawfulness of the classification is an 10

overriding question of law. See, e.g., Otsuka v. Polo Ralph Lauren Corp., 251 F.R.D. 439, 44511

447 (N.D.Cal. 2008) (Illston, J.) (defendant maintained its policies were lawful under California 12

law, but the centrality of this question itself warranted certification). As to adequacy of 13

representation (Rule 23(a)(4)), the Plaintiffs submit that their interests are identical to the interests 14

of other members of the class (see Store Managers’ Decs.), and Plaintiffs’ attorney submits that 15

he is qualified, experienced in wage/hour class litigation, and able to conduct this litigation. See 16

Schwartz Dec. See also, generally, Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 ( 9th Cir. 17

1998). Defendants do n ot allege any conflicts between the Plaintiffs and the class thus far, or
18 doubt Plaintiffs’ counsel’s experience, thus far. Plaintiffs and their counsel have been actively

19 pursuing the interests of the putative class throughout this litigation, developing what Plaintiffs

20 contend is a strong factual record warranting certification (see supra), and which led to the very

21 substantial and fair settlement presented herein. Schwartz Dec. Class litigation is superior, since

22 many of the class members' claims will be too small to pursue individually, such that lost access

23 to the courts will result from a failure to certify. Tierno v. Rite Aid Corp., 2006 WL 2535056,

24

**10-11 (N.D. Cal. August 31, 2006) (Henderson, J.).24

25

26

24 For all the foregoing reasons, the class certification sought here meets the standards discussed in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231 (1997), and is imminently distinguishable from that case, in

27

which different class members’ widely divergent health conditions in asbestos litigation precluded the class from proper certification in a settlement context. Class members are subject to common questions of law and fact relating

28

to whether they were properly classified as exempt from the FLSA and state wage laws by Samsonite – whether the Store Managers were primarily salespersons (as Plaintiffs allege), etc. The issue of the propriety of this classification,

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1 B. The Notices and Settlement Meet the Standards Set Forth in Fed.R.Civ.P. 23(e) and

2

the 9th Circuit’s Officers for Justice Case.

3

As the 9th Circuit has explained, citing the Fed.R.Civ.P. 23(e) threshold for final

4 settlement approval, “[T]he universally applied standard is whether the settlement is

5 fundamentally fair, adequate and reasonable.” Officers for Justice v. Civil Service Com'n of City

6

and County of San Francisco, 688 F.2d 615, 625 ( 9th Cir. 1982). At the same time, “[t]he very

7 essence of a settlement is compromise, a yielding of absolutes and an abandoning of highest

8 hopes.” Id. at 624. The agreement is fair, adequate, and reasonable – it provides substantial

9 recovery for Plaintiffs under difficult circumstances. Schwartz Dec.

10

The 9th Circuit’s standard of evaluation of the fairness, adequacy, and reasonableness of a

11

settlement requires this Court to balance several factors:

the strength of plaintiffs' case; the risk, expense, complexity, and likely duration

12

of further litigation; the risk of maintaining class action status throughout the trial;

13

the amount offered in settlement; the extent of discovery completed, and the stage of the proceedings; the experience and views of counsel; the presence of a

14

governmental participant; and the reaction of the class members to the proposed

settlement.

15

Officers for Justice, 688 F.2d at 625. See also Hanlon, 150 F.3d at 1011 .

16

1. The strength of the Plaintiffs’ case.

17

Plaintiffs’ case has some strengths – e.g., the difficult-to-justify (in Plaintiffs’ view)

18

exempt classification of Store Managers prior to their reclassification, based on the executive

19

exemption under the FLSA, California, and New York law, since they appear to have so many

20

sales and routine store maintenance duties, and since so much of their job is governed by central

21

policies, practices, and procedures. See generally Morgan v. Family Dollar Stores, Inc., 551 F.3d

22

1233 (11th Cir. 2008). Plaintiffs emphasize that, as this Court has stated, courts usually grant at

23

least FLSA conditional certification and apply a lenient standard to such. Kairy, 2009 WL

24

25
and the class members’ interest in receiving overtime and, in California, meal/rest period compensation and itemized

26

wage statement compensation overrides all other issues. The named plaintiffs adequately represent the Store Manager position affected by this settlement and hail from California and New York, where Rule 23 claims were brought, and

27

there are no conflicts of interest between the named parties and the class members. The claims of the named parties and all the class members are identical – namely, that they were misclassified and denied compensation as a result.

28

Class counsel has effectively represented nationwide wage and hour classes many times – including in this case, to date. Schwartz Dec.

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1

2

1457971, at **1-2. Yet, Defendants would argue that these employees were properly exempt

3

(relying, e.g., on Baldwin v. Trailer Inns, Inc., 266 F .3d 1104 ( 9th Cir. 2001)) and were

4

reclassified in an abundance of caution, and that recovery is limited in any event, because of

5

Defendant’s prior settlement and its actions to reclassify. Defendants would argue that their

actions to reclassify Store Managers demonstrate good faith and a lack of willfulness as to any 6

violations, warranting a shorter statute of limitations under the FLSA, and threatening recovery 7

under the FLSA, of liquidated damages and other penalties. 8

9

2. The risk, expense, complexity, and likely duration of further litigation.

10

As discussed, supra, further litigation would be accompanied by significant risks for

11

Plaintiffs, including but not limited to the prospects of losing class action status, of having the

12

California Supreme Court adopt a low threshold for employers on m eal/rest period premium

13

compensation, and of failing to establish willfulness or prove the applicability of a four-year

14

statute of limitations in California or a six-year statute in New York. Schwartz Dec. Further

15

litigation would cost millions and could entail litigating challenging issues of state and Federal

16

law, e.g.: whether individual releases are valid to waive collective action rights, along with state

17

wage/hour claims; whether Samsonite Corporation is a properly-named employer under federal

18

and state wage law; the unsettled debate regarding meal/rest period compensation in California;

whether the fluctuating workweek method should be applied to damages calculations; and, 19

whether certification is appropriate. Schwartz Dec. Finally, the likely duration of further litigation 20

– which, with a trial and appeals, would easily last another three years – would be at Plaintiffs’ 21

peril. Plaintiffs’ counsel believes that continuing to litigate long-term against Samsonite would be 22

imprudent in light of current economic realities and many class members’ unemployment. Id. 23

3. The risk of maintaining class action status throughout the trial. 24

As discussed, supra, Defendants would argue the merits of their classification system, and 25
against certification, absent the settlement posture, and/or would argue for decertification. 26
Defendants would argue, that individual issues predominate over the alleged issues that are 27

28

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1

2

common to the purported class. See Defendant’s Answer to First Amended Complaint (Docket #

3

21.) Defendants reserve the right to raise these arguments should it be necessary to do so.

4

4. The amount offered in settlement.

5

As discussed in depth supra, the five hours per week of overtime, plus liquidated

6

damages, 10% interest, three hours per week of California meal/rest, itemized wage statement

7

penalties, vacation time compensation, and recovery for alleged retaliation against the named

8

Plaintiffs under the Settlement – discounted modestly and appropriately for litigation risk and

9

attorneys’ fees – all suggest a fair offer. Schwartz Dec. Plaintiffs submit that collecting nearly one

10

million dollars from a company that declared bankruptcy, which has already settled many of the

11

class’s claims with the Department of Labor and taken steps to reclassify and change its

12

wage/hour practices, in an industry rife with nationwide closures, layoffs, and bankruptcies, is an

13

achievement. Id. The average proposed recovery for 89 class members from the Settlement is

14

$6,287.47, in addition to the average $1,306.19 already recovered by class members after the

15

lawsuit was filed. Id. In total, Store Managers will average $7,593.66 i n their pockets (before

16

taxes) as a result of this case. The amount vastly exceeds many other wage/hour class settlements

17

approved as adequate and fair in the recent past by this Court. See, e.g., Gerlach v. Wells Fargo &

18

Co., 05-cv-00585-CW) (N.D. Cal.) (Wilken, J.) (Dkt. #’s 315, 331, 332) (attached for the Court’s

convenience to Schwartz Dec., Exhibit 9) (settlement class members received $9,000,000 among 19
4,200 class members, or an average of $2,142 each); Stanfield v. First NLC, 06-cv-3892-SBA 20
(N.D. Cal.) (Armstrong, J.) (Dkt. #’s 315, 324) (attached for the Court’s convenience to Schwartz 21
Dec., Exhibit 10) (settlement class members received $9,218,333.33 among 2,940 class members, 22
or an average of $3,135 each); Rosenburg v. International Business Machines Corp., 06-cv23
00430-PJH (N.D. Cal.) (Hamilton, J.) (Dkt. #’s 104, 127, 128, 129, 130, 134) (attached for the 24
Court’s convenience to Schwartz Dec., Exhibit 11) (approximately 11,000 settlement class 25
members received under $4,500 e ach on a verage from a settlement worth approximately 26
$66,600,000, after deducting 25% in fees, $45,000 in named plaintiffs’ service payments, and 27
$250,000 in costs). 28

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1

2

Here, the parties have created a minimum recovery for all class members of $500,

3

ensuring that every class member of the 89 will substantially benefit from the Settlement and

4

providing each with an incentive to opt-in/file a claim. Settlement, at Section XVIII. Courts have

5

often approved settlements with such minimum recoveries – and much lower ones. See, e.g.,

Rosenburg, 06-cv-00430-PJH (Dkt. #104) (Schwartz Dec., Exhibit 11), at p. 11 ( $50 minimum 6

recovery); Stanfield, 06-cv-3892-SBA (Dkt. #315), Schwartz Dec., Exhibit 10, at p. 10 ($500). 7

Moreover, the Court should find it significant that, under the agreement, Samsonite will 8
pay the employer’s share of the appropriate payroll taxes on the back-wages portion of each class 9
member’s settlement recovery. Settlement, at Section XXI.d. See also, e.g., Rosenburg v. 10
International Business Machines Corp., 2007 WL 2043855, a t *5 ( N.D. Cal. July 12, 2007 ) 11
(Hamilton, J.). The Court should also weigh heavily that the covered period in the agreement is 12
appropriately calculated based on the most optimistic available statute of limitations (going back 13
four years in California, as arguably permitted under §17200, and six years in New York). Id. 14
Finally, unlike in this Court’s Kakani decision (Kakani v. Oracle Corp., 2007 WL 15
1793774 (N.D.Cal. June 19, 2007) (Alsup, J.)), no funds whatsoever of the settlement fund can 16
revert to Samsonite under any circumstances. See Settlement, at Section X.e. All workers’ 17
existing claims are only extinguished when they receive settlement offers, and class action notices 18
are provided to all settlement class members. Id., at Sections VII, VIII, XVIII. The detailed and 19
relevant release in the instant case does not implicate the concerns related to the sweeping release 20
present in Kakani. Id., at Sections VI, VII, VII. The Store Manager position is represented 21
adequately by the representative Plaintiffs. Dkt. #14, Amended Complaint, at ¶¶5-6. 22

23

5. The stage of the proceedings.

24

Here, the parties conducted protracted, arms’-length negotiations regarding how to

25 address the remaining claims of the class members. Schwartz Dec. The parties exchanged

26 extensive discovery, took depositions, endured days of mediation, and tracked hundreds of hours

27 of legal work to date. Id. The parties have stipulated to certification, pursuant to the settlement

28 agreement, and meet the criteria for certification, supra.

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1 6. The experience and views of counsel.

2

Plaintiffs submit that their counsel has litigated numerous nationwide class and collective

3

wage/hour actions and recognizes the result obtained here as a fair one. Schwartz Dec. This

4

settlement agreement is the result of arms’-length negotiations between experienced counsel

5

representing the interests of the Plaintiffs and Defendants, after thorough investigation. Id. See

6

also Staton v. Boeing, 327 F.3d 938, 960 (9th Cir. 2003); Class Plaintiffs v. City of Seattle, 955

7

F.2d 1268, 1291 ( 9th Cir. 1992). “The recommendations of plaintiffs’ counsel should be given a

8

presumption of reasonableness.” Boyd v. Bechtel Corp., 485 F. Supp. 610, 622 (N.D. Cal. 1979)

9

(Orrick, J.); M. Berenson Co. v. Faneuil Hall Marketplace, Inc., 671 F . Supp. 819 ( D. Mass

10

1987); Ellis v. Naval Air Rework Facility, 87 F .R.D. 15, 18 ( N.D. Cal. 1980) (Orrick, J.) (“the

11

fact that experienced counsel involved in the case approved the settlement after hard-fought

12

negotiations is entitled to considerable weight”).

13

7. The presence of a governmental participant. N/A. The Department of Labor settled

14

a previous matter with Samsonite, but has no role in these proceedings.

15

8. The reaction of the class members to the proposed settlement.

16

Though the agreement has not yet received preliminary approval, some class members

17

have been notified of the proposed terms, and are pleased with the result. Schwartz Dec.

18

Anecdotal evidence suggests the gratitude of class members, and the desperate need of class

19

members for this settlement to be effectuated promptly. Schwartz Dec.; Store Managers’ Decs., at

20

Gaviria Dec., ¶9. The reaction of the class members in the instant case supports preliminary

21

approval of the settlement.

22 B. The Process for Administering this Settlement Support Preliminary Approval.

23

Procedurally, the notice the parties have agreed to send in this matter clearly indicates to

24

all class members that their rights will be affected by the outcome, and provide them with a clear

25

procedure for opting-into, opting-out of, or withdrawing from the class. Settlement, Exhibits F, G,

26

and H (Proposed Class Notice). As envisioned in Officers for Justice, 688 F.2d at 624, no one in

27

the class will be left without notice. All class members will have a full 90 days, pursuant to the

28

Settlement, to opt-in/file a claim, opt-out, or withdraw, and the settlement administrator will send

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1

2

a reminder notice after sixty days to class members who have not yet filed claims. Settlement, at

3

Section XXIV. This time is ample – longer than normally afforded to class members – and this

4

procedure is fair. Schwartz Dec. Compare Kakani, 2007 WL 1793774, at *5 n. 2 (45 days to file

5

claim can be unreasonably brief).

6

C. The Enhancements to the Representative Plaintiffs are Reasonable and Fair.

7

Courts in this Circuit frequently award enhancement payments to lead plaintiffs for their

8 efforts in prosecuting the case. See, e.g., Glass v. UBS Financial Services, Inc., 2007 WL 221862,

9

*16 (N.D.Cal. 2007) (Chesney, J.) (approving payments of $25,000 to each named plaintiff). See

10

also In re Heritage Bond Litigation, 2005 WL 1594403, *18 (awarding incentive payments of

11

between $5,000 a nd $18,000); Van Vranken v. Atlantic Richfield Co., 901 F.Supp. 294, 300

12

(N.D.Cal.1995) (Williams, J.) (awarding $50,000 to a lead plaintiff). The two named Plaintiffs

13

who brought this case to counsel and represented their entire class of Plaintiffs will be

14

compensated, per the agreement, $5,000, e ach for their service to the Court and to their fellow

15

employees. Plaintiffs also emphasize that an enhancement compensates for the fear of retaliation

16

suffered by employees who step forward, citing Gentry, 42 Cal.4th at 459-461. They have each

17

given many hours of their time to responding to Defendants’ discovery requests, and have

18

together participated in days of deposition and mediation. Id. Plaintiffs submit that from payments

19

of nearly a million dollars which would not have been made without their service, $5,000 i s a

20

very reasonable reward. Id

21

D. The Attorneys Fees Award Included in the Settlement is Just, Reasonable, and Fair.

22

1. The Court Should Use The Common Fund, Percentage of the Fund Method

To Review The Allocation Of Attorneys’ Fees. 23

24

For well over a century, federal and state courts have recognized that when counsel’s

25

efforts result in the creation of a common fund that benefits plaintiffs and unnamed class

26 members, counsel have an equitable right to be compensated from that fund as a whole for their

27 successful efforts in creating it. See, e.g., Boeing Co. v. Van Gemert, 444 U.S. 472, 478 ( 1980)

28

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1

2

(the United States Supreme Court “has recognized consistently that a litigant or a lawyer who

3

recovers a common fund … is entitled to a reasonable attorney’s fee from the fund as a whole”);

4

Central R.R. & Banking Co. v. Pettus, 113 U.S. 116 ( 1885) (recognizing common fund

5

doctrines); Staton, 327 F.3d at 967 (same). See also Serrano v. Priest, 20 Cal.3d 25, 35 (1977).

The common fund doctrine rests on the understanding that, in class action litigation, those 6

who benefited from the fund (the class members) without contributing to those who created it (the 7

attorneys) would be unjustly enriched. Boeing, 444 U.S. at 478. Thus, courts have endorsed the 8

method of awarding a percentage of the total fund as a fair way to calculate a reasonable fee when 9
contingency fee litigation has produced a common fund. See, e.g., Blum v. Stenson, 465 U.S. 886, 10
900 FN16, 104 S.Ct. 1541 (1984); Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 11
1311 (9th Cir. 1990) (common fund fee is generally “calculated as a percentage of the recovery”). 12
The percentage of the fund method is appropriate for a number of well-recognized 13
reasons, including that the percentage method accomplishes fee spreading in a manner that 14
comports with the legal marketplace. See Swedish Hosp. Corp. v. Shalala, 1 F .3d 1261, 1269 15
(D.C. Cir. 1993) (citing “the uncertainties and hazards of [this type of] litigation”). 16
Further, when clients do not pay an ongoing hourly fee to their counsel, they typically 17
negotiate an agreement in which counsel’s fee is based upon a percentage of any recovery. The 18
percentage of the fund approach mirrors this aspect of the market and, accordingly, reflects the 19
fee that would have been negotiated by the class members in advance, had such negotiations been 20
feasible, given the prospective uncertainties and anticipated risks and burdens of the litigation. 21
See, e.g., Paul, Johnson, Alston & Hunt, 886 F.2d at 271 (“it is well settled that the lawyer who 22
creates a common fund is allowed an extra reward, beyond that which he has arranged with his 23
client, so that he might share the wealth of those upon whom he has conferred a benefit”); In re
24 Continental Illinois Sec. Litig., 962 F.2d 566, 572 ( 7th Cir. 1992) (in a common fund case, the
25 object “is to give the lawyer what he would have gotten in the way of a fee in an arm’s length
26 negotiation, had one been feasible”).

27

28

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1

2

The percentage of the common fund approach helps provide highly-qualified attorneys the

3

necessary incentive to bring large, complex class actions, even though by definition it is

4

impossible in such cases to negotiate a specific fee with the unnamed class members in advance.

5

See generally Paul, Johnson, Alston & Hunt, 886 F.2d at 268, 271-272 (9th Cir. 1989). Basing the

common fund fee award on a percentage of the fund also encourages counsel to spend their time 6

efficiently and to focus on maximizing the size of the class’s recovery, rather than their own 7

lodestar hours. Swedish Hospital, 1 F.3d at 1269. Finally, the percentage method is far easier for 8

courts to calculate than any alternative method. Id.; In re Activision Sec. Litig., 723 F . Supp. 9
1373, 1378 (N.D. Cal. 1989) (Patel, J.). 10
Here, plaintiffs submit that the common fund method is appropriate because Plaintiffs’ 11
counsel’s actions have led to a common fund of $850,000, pl us an additional amount of 12
approximately $116,000 already distributed to the class, to be shared by 89 people. Many of those 13
in the class do not have formal attorney-client agreements with Plaintiffs’ counsel, and it is 14
appropriate that an award of fees should be shared by each class member who receives benefit 15
from the settlement. The common fund is also appropriate because Plaintiffs’ counsel took this 16
case on a contingency basis. See, e.g., Blum, 465 U.S. at 900 n.16. Because Plaintiffs and class 17
members did not pay Plaintiffs’ counsel during the course of this litigation, Plaintiffs’ counsel 18
alone bore the risk that the litigation would be unsuccessful. Schwartz Dec. It is therefore 19
appropriate that an award of attorneys fees would mirror the fee that Plaintiffs’ counsel might be 20
paid in a contingency arrangement negotiated with individual plaintiffs, and which was, in this 21
case, negotiated with the individual Plaintiffs. See Schwartz Dec., Exhibit 8, S ample Fee 22
Agreement; see also In re Continental Illinois Sec. Litig., 962 F.2d at 572. The opt-ins personally
23 signed fee agreements with Plaintiffs’ counsel agreeing to a 1/3 contingency fee (Schwartz Dec.,
24 Exh. 8) – counsel has accepted significantly less here.
25

26

27

28

NOTICE OF MOTION AND JOINT MOTION FOR

32

PRELIMINARY APPROVAL OF SETTLEMENT

BETWEEN PLAINTIFFS AND DEFENDANT; CV

09-01263 (JSW)

Case3:09-cv-01263-JSW Document43 Filed11/20/09 Page44 of 46

1

2. The Court Should Approve An Award Of 25% Of The Gross Recovery.25

2 Plaintiffs also submit the following. In the Ninth Circuit, 25 percent of the common fund
3 is commonly viewed as a “benchmark” for an attorneys’ fees award. See Paul, Johnson, Alston &
4 Hunt, 886 F.2d at 272. “The Ninth Circuit has repeatedly held that 25% of the gross settlement
5 amount is the benchmark for attorneys' fees awarded under the percentage method and that if the

6 Court departs from that benchmark, the record must indicate the Court's reasons for doing so.”

7

Glass, 2007 WL 221862, a t *14 (citing Powers v. Eichen, 229 F.3d 1249, 1256 -57 (9th Cir.

8

2000)).26 Here, in the interest of obtaining a fair and expeditious settlement for the class,

9

Plaintiffs’ counsel agreed to accept less than the 1/3 share they were assured from the named

10

Plaintiffs– the benchmark 25% of the gross recovery, or $241,562.77 fees out of $966,251.08.

11

Here, the quality of counsel, benefits obtained for the class, complexity of the issues, and

12

risk of nonpayment all warrant at least the standard 25% fee award. In re Quintus Securities

13

Litigation, 148 F.Supp.2d 967 ( N.D. Cal. 2001). In addition to counsel’s superior experience,

14

counsel in the instant case obtained a solid result for Plaintiffs, with compensation for overtime

15

and other wage/hour claims for each week worked by the class members which was not precluded

16

by another settlement. Schwartz Dec. Counsel aggressively negotiated this settlement. Id.

17

Moreover, this is a substantial settlement that provides significant value to class members.

18

Plaintiffs’ counsel submits that the purported class members worked in a company and in an

19

industry that is in the midst of a major crisis. Id. The statute of limitations utilized was the longest

20

available under law. Id. The payment of actual and substantial damages to class members is to be

21

22

25 In the instant case, without using the common fund method, Plaintiffs’ lodestar fees approach and may (before the

matter is fully and finally resolved) equal or exceed the 25% fees awarded from the common fund (Schwartz Dec.) –

23

the lodestar fees are currently more than 80% of what is proposed to be awarded using the common fund approach.

Id. So, by any method, the fee award is just, reasonable, and fair.

24

26 Courts in the Ninth Circuit have also awarded attorney fees in amounts greater than the twenty-five percent (25%)

“benchmark percentage.” See, e.g., In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 460 (9th Cir.2000) (affirming

25

award of fees equal to one-third of total recovery); In re CV Therapeutics, Inc., Securities Litigation, 2007 WL

1033478, *1 (N.D.Cal. April 4, 2007) (Illston, J.) (awarding fee of 30%, plus reimbursement for expenses); In re

26

Heritage Bond Litigation, 2005 WL 1594403 (C.D.Cal. 2005) (approving an award of one-third of $27,783,000.00); In re Public Ser. Co. of New Mexico, 1992 WL 278452, at *1, *12 (S.D.Cal. July 28, 1992) (awarding one-third);

27

Antonopulos v. North American Thoroughbreds, Inc., 1991 WL 427893, at *1, *4 (S.D.Cal. May 6, 1991) (awarding one-third); In re M.D.C. Holdings Sec. Litig., 1990 WL 454747, at *1, *10 (S.D.Cal. Aug.30, 1990) (awarding 30%

28

attorneys' fee plus expenses); In re Immunex Sec. Litig., 864 F.Supp. 142 (W.D. Wash. 1994) (awarding fee of 30%: $3.9 million fee, $14 million fund).

NOTICE OF MOTION AND JOINT MOTION FOR

33

PRELIMINARY APPROVAL OF SETTLEMENT

BETWEEN PLAINTIFFS AND DEFENDANT; CV

09-01263 (JSW)

Case3:09-cv-01263-JSW Document43 Filed11/20/09 Page45 of 46

1

2

contrasted with other cases in which requests for attorneys fees have been denied or reduced. For

3

example, in Zucker v. Occidental Petroleum Corp., 192 F.3d 1323 (9th Cir. 1999), class counsel

4

requested almost $3,000,000 i n fees, despite not securing any actual damages payable to class

5

members. Here, the significant payments that Plaintiffs receive support the approval of Plaintiffs’

attorneys’ fees request. The class members in the instant case are on average recovering a greater 6

amount (approximately $7,600 total, and nearly $6,300 now) than class members in recent 7

wage/hour settlements approved by, among others, Judges Wilken, Armstrong, and Hamilton of 8
this Court. See supra (citing Gerlach, 05-cv-00585-CW (average of $2,142 each); Stanfield, 069
cv-3892-SBA (average of $3,135 each); Rosenburg, 06-cv-00430-PJH (under $4,500 each)). 10
Also, in contrast to Kakani, 2007 W L 1793774, this is not a “claims made” settlement. 11
Each dollar that is allocated to be distributed to class members will end up either in class 12
members’ hands or, as a last resort, in a cy pres fund. Settlement, at Section XVII. Counsel’s 13
percentage of the common fund, at the 25% benchmark, is based on a percentage of actual payout 14
by Samsonite, not some fictitious amount that will never actually be distributed. 15
Further, Plaintiffs’ counsel has not concealed the fees it would be requesting as a part of 16
this settlement. The fee distribution is outlined clearly in the settlement agreement, which will be 17
available for all class members to review. Settlement, at Exhibit F. 18
Finally, Plaintiffs’ counsel have undertaken and continued to litigate this matter 19
aggressively, despite a serious risk of nonpayment. Schwartz Dec. Plaintiffs’ counsel funded this 20
case and prosecuted it on a contingency basis, even after another settlement eliminated the bulk of 21
the class members’ claims, and even after SCS filed for Chapter 11 bankruptcy. Id. If Plaintiffs’ 22
counsel had not undertaken this risk, Plaintiffs’ counsel submits that there is a very real chance 23
that the class could have ended up with nothing. Plaintiffs’ counsel notes that Courts recognize
24 that Plaintiffs’ counsel must be compensated for taking such a risk.
25

26

IV. CONCLUSION

27

For the foregoing reasons, the class should be certified and settlement agreement should

28 be given preliminary approval at this time.

NOTICE OF MOTION AND JOINT MOTION FOR

34

PRELIMINARY APPROVAL OF SETTLEMENT

BETWEEN PLAINTIFFS AND DEFENDANT; CV

09-01263 (JSW)

Case3:09-cv-01263-JSW Document43 Filed11/20/09 Page46 of 46

1

2

3

Dated: November 20, 2009

4

By: /s/ Bryan J. Schwartz

BRYAN J. SCHWARTZ

5

Attorneys for Plaintiffs

6

/s/ Daniel H. Lee

7

MARTIN J. DENISTON

DANIEL H. LEE

8

Attorneys for Defendants

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

NOTICE OF MOTION AND JOINT MOTION FOR

35

PRELIMINARY APPROVAL OF SETTLEMENT

BETWEEN PLAINTIFFS AND DEFENDANT; CV

09-01263 (JSW)

 
 Case: 3:09-cv-01263-JSW As of: 03/30/2011 11:10 AM PDT 1 of 8
ADRMOP, CLOSED, E−Filing, MEDTERM
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:09−cv−01263−JSW

Pearson et al v. Samsonite Company Stores, Inc. et al Assigned to: Hon. Jeffrey S. White Demand: $5,000,000 Cause: 28:1332 Diversity−Fair Labor Standards Act
Plaintiff

Date Filed: 03/24/2009 Date Terminated: 04/09/2010 Jury Demand: Plaintiff Nature of Suit: 710 Labor: Fair Standards Jurisdiction: Federal Question

Rosalie Pearson individually, on behalf of others similarly situated, and on behalf of the general public

represented by Bryan Jeffrey Schwartz Bryan Schwartz Law 180 Grand Avenue, Suite 1550 Suite 720 Oakland, CA 94612 510−444−9300 Fax: 510−444−9301 Email: bryan@bryanschwartzlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hillary Jo Benham−Baker Bryan Schwartz Law 180 Grand Ave Suite 1550 Oakland, CA 94612 510−444−9300 Fax: 510−444−9301 Email: hillary@bryanschwartzlaw.com ATTORNEY TO BE NOTICED

Plaintiff
Dennis Newsham individually, on behalf of others similarly situated, and on behalf of the general public

represented by Bryan Jeffrey Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hillary Jo Benham−Baker (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Samsonite Company Stores, Inc.

represented by Daniel Hakmo Lee Wilson Elser Moskowitz Edelman &Dicker 555 S Flower St Ste 2900 Los Angeles, CA 90071 (213) 443−5100 Email: daniel.lee@wilsonelser.com ATTORNEY TO BE NOTICED
Martin Kent Deniston Wilson Esler Moskowitz Edelman &Dicker LLP 555 South Flower St. Suite 2900 Los Angeles, CA 90071

Case: 3:09-cv-01263-JSW As of: 03/30/2011 11:10 AM PDT 2 of 8

213−443−5100 Fax: 213−443−5101 Email: martin.deniston@wilsonelser.com ATTORNEY TO BE NOTICED

Defendant Samsonite Corporation

represented by Daniel Hakmo Lee (See above for address) ATTORNEY TO BE NOTICED

Martin Kent Deniston (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/24/2009
03/24/2009 03/24/2009 03/24/2009 03/25/2009 03/25/2009 03/26/2009
03/26/2009
04/07/2009
04/14/2009 04/27/2009 04/27/2009

# Docket Text
1 COMPLAINT (with jury demand) against Samsonite Company Stores, Inc., Samsonite Corporation (Filing fee $ 350, receipt number 34611030264). Filed by Rosalie Pearson, Dennis Newsham. (cjl, COURT STAFF) (Filed on 3/24/2009) (Additional attachment(s) added on 3/25/2009: # 1 Civil Cover Sheet) (cjl, COURT STAFF). Modified on 3/25/2009 (cjl, COURT STAFF). (Entered: 03/25/2009)
2 Summons Issued as to Samsonite Company Stores, Inc., Samsonite Corporation. (cjl, COURT STAFF) (Filed on 3/24/2009) (cjl, COURT STAFF). (Entered: 03/25/2009)
3 ADR SCHEDULING ORDER: Case Management Statement due by 6/29/2009. Case Management Conference set for 7/6/2009 04:00 PM. (Attachments: # 1 Standing Order)(cjl, COURT STAFF) (Filed on 3/24/2009) (Entered: 03/25/2009)
CASE DESIGNATED for Electronic Filing. (cjl, COURT STAFF) (Filed on 3/24/2009) (Entered: 03/25/2009)
4 Declination to Proceed Before a U.S. Magistrate Judge by Rosalie Pearson, Dennis Newsham. (Schwartz, Bryan) (Filed on 3/25/2009) (Entered: 03/25/2009)
5 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge. (hlk, COURT STAFF) (Filed on 3/25/2009) Modified on 3/26/2009 (cjl, COURT STAFF). (Entered: 03/25/2009)
6 ORDER REASSIGNING CASE. Case reassigned to Hon. Jeffrey S. White for all further proceedings. Magistrate Judge Wayne D. Brazil no longer assigned to the case. Signed by the Executive Committee on March 26, 2009. (cjl, COURT STAFF) (Filed on 3/26/2009) (Entered: 03/26/2009)
7 SUMMONS Returned Executed by Rosalie Pearson, Dennis Newsham. Samsonite Company Stores, Inc. served on 3/25/2009, answer due 4/14/2009; Samsonite Corporation served on 3/25/2009, answer due 4/14/2009. (Schwartz, Bryan) (Filed on 3/26/2009) (Entered: 03/26/2009)
8 INITIAL SCHEDULING CONFERENCE ORDER: Case Management Conference set for 7/10/2009 01:30 PM. Case Management Statement due by 7/2/2009.. Signed by Judge Jeffrey S. White on 4/7/09. (jjo, COURT STAFF) (Filed on 4/7/2009) (Entered: 04/07/2009)
9 STIPULATION REGARDING EXTENSION OF TIME TO RESPOND TO PLAINTIFFS' COMPLAINT by Samsonite Company Stores, Inc., Samsonite Corporation. (Lee, Daniel) (Filed on 4/14/2009) (Entered: 04/14/2009)
10 NOTICE by Rosalie Pearson, Dennis Newsham of Consent Filing (Attachments: # 1 FLSA Consent)(Schwartz, Bryan) (Filed on 4/27/2009) (Entered: 04/27/2009)
11 ERRATA re 10 Notice (Other) Corrected Certificate of Service for Docket #10 by Rosalie Pearson, Dennis Newsham. (Schwartz, Bryan) (Filed on 4/27/2009) (Entered: 04/27/2009)

Case: 3:09-cv-01263-JSW As of: 03/30/2011 11:10 AM PDT 3 of 8

05/06/2009 05/27/2009 05/29/2009 06/05/2009 06/05/2009 06/05/2009 06/08/2009 06/08/2009
06/10/2009 06/18/2009 06/19/2009 06/30/2009 07/02/2009
07/07/2009 07/13/2009 07/15/2009 07/31/2009 08/20/2009 09/01/2009

12 NOTICE by Rosalie Pearson, Dennis Newsham Notice of Consent Filing (Attachments: # 1 Consent Form)(Schwartz, Bryan) (Filed on 5/6/2009) (Entered: 05/06/2009)
13 CERTIFICATE OF SERVICE by Rosalie Pearson, Dennis Newsham re 8 Initial Scheduling Scheduling Order In Accordance With Fed. R. Civ. P. 4 and 5 and Civ. L.R. 5−6(a) (Schwartz, Bryan) (Filed on 5/27/2009) (Entered: 05/27/2009)
14 AMENDED COMPLAINT against Samsonite Company Stores, Inc., Samsonite Corporation. Filed byRosalie Pearson, Dennis Newsham. (Schwartz, Bryan) (Filed on 5/29/2009) (Entered: 05/29/2009)
15 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) filed by Defendants Samsonite Company Stores and Samsonite Corporation (Lee, Daniel) (Filed on 6/5/2009) (Entered: 06/05/2009)
16 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options filed by Defendants Samsonite Company Sotres and Samsonite Corporation (Lee, Daniel) (Filed on 6/5/2009) (Entered: 06/05/2009)
17 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) filed by Defendants Samsonite Company Stores and Samsonite Corporation (Lee, Daniel) (Filed on 6/5/2009) (Entered: 06/05/2009)
18 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Schwartz, Bryan) (Filed on 6/8/2009) (Entered: 06/08/2009)
19 STIPULATION re 14 Amended Complaint STIPULATION REGARDING EXTENSION OF TIME TO RESPOND TO PLAINTIFFS' FIRST AMENDED COMPLAINT by Samsonite Company Stores, Inc., Samsonite Corporation. (Lee, Daniel) (Filed on 6/8/2009) (Entered: 06/08/2009)
20 Certificate of Interested Entities by Samsonite Company Stores, Inc., Samsonite Corporation (Lee, Daniel) (Filed on 6/10/2009) (Entered: 06/10/2009)
21 Defendants' ANSWER to Amended Complaint bySamsonite Company Stores, Inc., Samsonite Corporation. (Lee, Daniel) (Filed on 6/18/2009) (Entered: 06/18/2009)
22 Certificate of Interested Entities by Dennis Newsham, Rosalie Pearson (Schwartz, Bryan) (Filed on 6/19/2009) (Entered: 06/19/2009)
23 ADR Clerks Notice Setting ADR Phone Conference on 7/6/09 at 1:30 p.m. Please take note that plaintiff's counsel initiates the call to all parties. (sgd, COURT STAFF) (Filed on 6/30/2009) (Entered: 06/30/2009)
24 CASE MANAGEMENT STATEMENT JOINT CASE MANAGEMENT STATEMENT, FRCP 26(F) REPORT filed by Samsonite Company Stores, Inc., Samsonite Corporation. (Attachments: # 1 Proposed Order)(Lee, Daniel) (Filed on 7/2/2009) (Entered: 07/02/2009)
ADR Remark: ADR Phone Conference held by DB on 7/6/09. (sgd, COURT STAFF) (Filed on 7/7/2009) (Entered: 07/07/2009)
25 Minute Entry: Initial Case Management Conference held on 7/10/2009 before Judge Jeffrey S. White (Date Filed: 7/13/2009). (Court Reporter Jim Yeomans.) (jjo, COURT STAFF) (Date Filed: 7/13/2009) (Entered: 07/13/2009)
26 Statement JOINT STATEMENT OF PLAINTIFFS AND DEFENDANTS RE: MAGISTRATE JUDGES by Samsonite Company Stores, Inc., Samsonite Corporation. (Lee, Daniel) (Filed on 7/15/2009) (Entered: 07/15/2009)
CASE REFERRED to ADR for Mediation 25 . (af, COURT STAFF) (Filed on 7/31/2009) (Entered: 07/31/2009)
27 ADR Clerks Notice Appointing Baldwin Lee as Mediator. (af, COURT STAFF) (Filed on 8/20/2009) (Entered: 08/20/2009)
28 STIPULATION Requesting Order Changing Time in Light of Pending Mediation Efforts, Under Local Civil Rule 6−2 by Dennis Newsham, Rosalie Pearson. (Attachments: # 1 Proposed Order)(Schwartz, Bryan) (Filed on 9/1/2009) (Entered:

Case: 3:09-cv-01263-JSW As of: 03/30/2011 11:10 AM PDT 4 of 8

09/01/2009
09/01/2009 09/01/2009 09/01/2009 09/03/2009 09/10/2009 09/10/2009
09/11/2009 09/15/2009
09/18/2009 09/21/2009 10/07/2009 10/19/2009 10/22/2009
11/10/2009 11/17/2009 11/20/2009

09/01/2009)
29 Declaration of Bryan J. Schwartz in Support of 28 Stipulation Requesting Order Changing Time in Light of Pending Mediation Efforts, Under Local Civil Rule 6−2 filed byDennis Newsham, Rosalie Pearson. (Related document(s) 28 ) (Schwartz, Bryan) (Filed on 9/1/2009) (Entered: 09/01/2009)
30 CERTIFICATE OF SERVICE by Dennis Newsham, Rosalie Pearson of Civil Standing Orders for Hon. Jeffrey S. White, U.S. District Court for the Northern District of California (Schwartz, Bryan) (Filed on 9/1/2009) (Entered: 09/01/2009)
31 ORDER GRANTING 28 Stipulation to Change Time. Signed by Judge Jeffrey S. White on September 1, 2009. (jswlc2, COURT STAFF) (Filed on 9/1/2009) (Entered: 09/01/2009)
Set/Reset Deadlines as to Motion Hearing set for 1/15/2010 09:00 AM. (hdj, COURT STAFF) (Filed on 9/1/2009) (Entered: 09/02/2009)
32 NOTICE by Samsonite Company Stores, Inc., Samsonite Corporation Of Chapter 11 Bankruptcy (Deniston, Martin) (Filed on 9/3/2009) (Entered: 09/03/2009)
33 STIPULATION to Toll Statute of Limitations for FLSA Putative Class Members by Dennis Newsham, Rosalie Pearson. (Schwartz, Bryan) (Filed on 9/10/2009) (Entered: 09/10/2009)
34 Reply Memorandum RESPONSE TO DEFENDANT SAMSONITE COMPANY STORES, INC.S NOTICE OF CHAPTER 11 BANKRUPTCY filed byDennis Newsham, Rosalie Pearson. (Schwartz, Bryan) (Filed on 9/10/2009) (Entered: 09/10/2009)
35 ORDER GRANTING 33 Stipulation to Toll Statute of Limitations for FLSA Putative Class Members. Signed by Judge Jeffrey S. White on 9/11/09. (jjo, COURT STAFF) (Filed on 9/11/2009) (Entered: 09/11/2009)
Set/Reset Hearings: Mediation Hearing set for 10/14/2009 9:00 a.m., at the Mediator's offices Allen Matkins Three Embarcadero Center, 12th Floor, San Francisco, CA 94111. (af, COURT STAFF) (Filed on 9/15/2009) Modified on 9/21/2009 (af, COURT STAFF). (Entered: 09/15/2009)
36 NOTICE by Dennis Newsham, Rosalie Pearson Notice of Consent Filing Under FLSA, 29 U.S.C. Sec. 216 (Schwartz, Bryan) (Filed on 9/18/2009) (Entered: 09/18/2009)
37 NOTICE by Dennis Newsham, Rosalie Pearson Notice of Consent Filing Under FLSA, 29 U.S.C. Sec. 216 (Schwartz, Bryan) (Filed on 9/21/2009) (Entered: 09/21/2009)
38 ORDER APPROVING TELEPHONIC APPEARANCE AT MEDIATION (edllc1, COURT STAFF) (Filed on 10/7/2009) (Entered: 10/07/2009)
39 NOTICE by Dennis Newsham, Rosalie Pearson of Consent Filing under FLSA (Schwartz, Bryan) (Filed on 10/19/2009) (Entered: 10/19/2009)
40 CERTIFICATION OF MEDIATION Session 10/14/09, case not settled, another session scheduled for 11/2/09, mediation continuing. Signed by Mediator, Baldwin Lee, dated 10/19/09. (af, COURT STAFF) (Filed on 10/22/2009) (Entered: 10/22/2009)
41 NOTICE by Dennis Newsham, Rosalie Pearson re 36 Notice (Other) Withdrawal of Opt−In Plaintiff From Lawsuit (Attachments: # 1 Exhibit)(Schwartz, Bryan) (Filed on 11/10/2009) (Entered: 11/10/2009)
42 NOTICE by Dennis Newsham, Rosalie Pearson of Consent Filing under 29 U.S.C. sec. 216(b) (Schwartz, Bryan) (Filed on 11/17/2009) (Entered: 11/17/2009)
43 Joint MOTION for Settlement FOR PRELIMINARY APPROVAL OF JOINT STIPULATION OF SETTLEMENT AND RELEASE BETWEEN PLAINTIFFS AND DEFENDANTS filed by Dennis Newsham, Rosalie Pearson. Motion Hearing set for 12/18/2009 09:00 AM in Courtroom 11, 19th Floor, San Francisco.

Case: 3:09-cv-01263-JSW As of: 03/30/2011 11:10 AM PDT 5 of 8

11/20/2009 11/20/2009 11/20/2009 11/20/2009 11/20/2009

(Attachments: # 1 Exhibit Joint Stipulation of Settlement and Release Between Plaintiffs and Defendants, plus Exhibits to same (including proposed Order))(Schwartz, Bryan) (Filed on 11/20/2009) (Entered: 11/20/2009)
44 Declaration of Bryan J. Schwartz, Esq. in Support of 43 Joint MOTION for Settlement FOR PRELIMINARY APPROVAL OF JOINT STIPULATION OF SETTLEMENT AND RELEASE BETWEEN PLAINTIFFS AND DEFENDANTS filed byDennis Newsham, Rosalie Pearson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Related document(s) 43 ) (Schwartz, Bryan) (Filed on 11/20/2009) (Entered: 11/20/2009)
45 Joint MOTION for an Enlarged Page Limit for MOTION FOR PRELIMINARY APPROVAL OF JOINT STIPULATION OF SETTLEMENT AND RELEASE BETWEEN PLAINTIFFS AND DEFENDANTS re 43 Joint MOTION for Settlement FOR PRELIMINARY APPROVAL OF JOINT STIPULATION OF SETTLEMENT AND RELEASE BETWEEN PLAINTIFFS AND DEFENDANTS filed by Dennis Newsham, Rosalie Pearson. Motion Hearing set for 12/18/2009 09:00 AM in Courtroom 11, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Schwartz, Bryan) (Filed on 11/20/2009) (Entered: 11/20/2009)
46 Joint MOTION to Seal Document FOR ADMINISTRATIVE RELIEF UNDER CIV. L.R. 7−11, TO FILE DOCUMENTS UNDER SEAL PURSUANT TO CIV. L.R. 79−5(c), regarding portions of Exhibit D to Joint Stipulation of Settlement (Dkt. #43−1) filed by Dennis Newsham, Rosalie Pearson. Motion Hearing set for 12/18/2009 09:00 AM in Courtroom 11, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Schwartz, Bryan) (Filed on 11/20/2009) (Entered: 11/20/2009)
47 Declaration of Bryan J. Schwartz, Esq. in Support of 46 Joint MOTION to Seal Document FOR ADMINISTRATIVE RELIEF UNDER CIV. L.R. 7−11, TO FILE DOCUMENTS UNDER SEAL PURSUANT TO CIV. L.R. 79−5(c), regarding portions of Exhibit D to Joint Stipulation of Settlement (Dkt. #43−1)Joint MOTION to Seal Document FOR ADMINISTRATIVE RELIEF UNDER CIV. L.R. 7−11, TO FILE DOCUMENTS UNDER SEAL PURSUANT TO CIV. L.R. 79−5(c), regarding portions of Exhibit D to Joint Stipulation of Settlement (Dkt. #43−1) filed byDennis Newsham, Rosalie Pearson. (Related document(s) 46 ) (Schwartz, Bryan) (Filed on 11/20/2009) (Entered: 11/20/2009)
48 Statement re 47 Declaration in Support,, 44 Declaration in Support,, 45 Joint MOTION for an Enlarged Page Limit for MOTION FOR PRELIMINARY APPROVAL OF JOINT STIPULATION OF SETTLEMENT AND RELEASE BETWEEN PLAINTIFFS AND DEFENDANTS re 43 Joint MOTION for Settlement FOR PRELIMINARY APPROVAL OF JOINT STIPULATION OF SETTLEMEJoint MOTION for an Enlarged Page Limit for MOTION FOR PRELIMINARY APPROVAL OF JOINT STIPULATION OF SETTLEMENT AND RELEASE BETWEEN PLAINTIFFS AND DEFENDANTS re 43 Joint MOTION for Settlement FOR PRELIMINARY APPROVAL OF JOINT STIPULATION OF SETTLEMEJoint MOTION for an Enlarged Page Limit for MOTION FOR PRELIMINARY APPROVAL OF JOINT STIPULATION OF SETTLEMENT AND RELEASE BETWEEN PLAINTIFFS AND DEFENDANTS re 43 Joint MOTION for Settlement FOR PRELIMINARY APPROVAL OF JOINT STIPULATION OF SETTLEME, 46 Joint MOTION to Seal Document FOR ADMINISTRATIVE RELIEF UNDER CIV. L.R. 7−11, TO FILE DOCUMENTS UNDER SEAL PURSUANT TO CIV. L.R. 79−5(c), regarding portions of Exhibit D to Joint Stipulation of Settlement (Dkt. #43−1)Joint MOTION to Seal Document FOR ADMINISTRATIVE RELIEF UNDER CIV. L.R. 7−11, TO FILE DOCUMENTS UNDER SEAL PURSUANT TO CIV. L.R. 79−5(c), regarding portions of Exhibit D to Joint Stipulation of Settlement (Dkt. #43−1), 43 Joint MOTION for Settlement FOR PRELIMINARY APPROVAL OF JOINT STIPULATION OF SETTLEMENT AND RELEASE BETWEEN PLAINTIFFS AND DEFENDANTS Certificate of Service regarding Dkt. #'s 43−47 by Dennis Newsham, Rosalie Pearson. (Schwartz, Bryan) (Filed on 11/20/2009) (Entered: 11/20/2009)

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11/20/2009 11/20/2009 11/20/2009 11/20/2009 11/30/2009 11/30/2009 11/30/2009 12/10/2009 12/17/2009 12/17/2009 12/17/2009
12/17/2009
12/17/2009
12/18/2009

49 Joint MOTION for Settlement Approval Hearing Date filed by Samsonite Company Stores, Inc., Samsonite Corporation. Motion Hearing set for 12/18/2009 09:00 AM in Courtroom 11, 19th Floor, San Francisco. (Deniston, Martin) (Filed on 11/20/2009) (Entered: 11/20/2009)
50 Declaration of Daniel H. Lee in Support of 43 Joint MOTION for Settlement FOR PRELIMINARY APPROVAL OF JOINT STIPULATION OF SETTLEMENT AND RELEASE BETWEEN PLAINTIFFS AND DEFENDANTS filed bySamsonite Company Stores, Inc., Samsonite Corporation. (Related document(s) 43 ) (Deniston, Martin) (Filed on 11/20/2009) (Entered: 11/20/2009)
Received Document (UNDER SEAL) Exhibt D by Samsonite Company Stores, Inc., Samsonite Corporation. (hdj, COURT STAFF) (Filed on 11/20/2009) (Entered: 11/24/2009)
54 (UNDER SEAL) EXHIBIT D in Support of Joint Stipulation filed byDennis Newsham, Rosalie Pearson, Samsonite Company Stores, Inc., Samsonite Corporation. (hdj, COURT STAFF) (Filed on 11/20/2009) (Entered: 12/02/2009)
51 ORDER GRANTING 49 MOTION for Settlement Approval Hearing Date. Signed by Judge Jeffrey S. White on 11/30/09. (jjo, COURT STAFF) (Filed on 11/30/2009) (Entered: 11/30/2009)
52 ORDER GRANTING 45 Joint MOTION for an Enlarged Page Limit. Signed by Judge Jeffrey S. White on 11/30/09. (jjo, COURT STAFF) (Filed on 11/30/2009) (Entered: 11/30/2009)
53 ORDER GRANTING 46 FOR ADMINISTRATIVE RELIEF UNDER CIV. L.R. 7−11, TO FILE DOCUMENTS UNDER SEAL PURSUANT TO CIV. L.R. 79−5(c). Signed by Judge Jeffrey S. White on 11/30/09. (jjo, COURT STAFF) (Filed on 11/30/2009) (Entered: 11/30/2009)
55 CERTIFICATION OF MEDIATION Session 11/2/09, case fully settled, mediation complete. Signed by Mediator, Baldwin Lee, dated 11/10/09. (af, COURT STAFF) (Filed on 12/10/2009) (Entered: 12/10/2009)
56 NOTICE OF TENTATIVE RULING AND QUESTIONS. Signed by Judge Jeffrey S. White on December 17, 2009. (jswlc2, COURT STAFF) (Filed on 12/17/2009) (Entered: 12/17/2009)
57 NOTICE by Samsonite Company Stores, Inc., Samsonite Corporation NOTICE AND STIPULATOIN REGARDING COURT'S TENTATIVE RULING AND QUESTIONS (Lee, Daniel) (Filed on 12/17/2009) (Entered: 12/17/2009)
58 EXHIBITS re 56 Order, 57 Notice (Other), 43 Joint MOTION for Settlement FOR PRELIMINARY APPROVAL OF JOINT STIPULATION OF SETTLEMENT AND RELEASE BETWEEN PLAINTIFFS AND DEFENDANTS Revised Exhibit F (Proposed Class Notice) Pursuant to Stipulation (Dkt. #57) and to Address Court Questions (Dkt. #56) filed byDennis Newsham, Rosalie Pearson. (Related document(s) 56 , 57 , 43 ) (Schwartz, Bryan) (Filed on 12/17/2009) (Entered: 12/17/2009)
59 Declaration of Dennis Newsham in Support of 43 Joint MOTION for Settlement FOR PRELIMINARY APPROVAL OF JOINT STIPULATION OF SETTLEMENT AND RELEASE BETWEEN PLAINTIFFS AND DEFENDANTS Regarding Representative Plaintiff Enhancements filed byDennis Newsham, Rosalie Pearson. (Related document(s) 43 ) (Schwartz, Bryan) (Filed on 12/17/2009) (Entered: 12/17/2009)
60 Declaration of Rosalie Pearson in Support of 43 Joint MOTION for Settlement FOR PRELIMINARY APPROVAL OF JOINT STIPULATION OF SETTLEMENT AND RELEASE BETWEEN PLAINTIFFS AND DEFENDANTS Regarding Representative Plaintiff Enhancements filed byDennis Newsham, Rosalie Pearson. (Related document(s) 43 ) (Schwartz, Bryan) (Filed on 12/17/2009) (Entered: 12/17/2009)
61 Minute Entry: Motion Hearing held on 12/18/2009 before Judge Jeffrey S. White (Date Filed: 12/18/2009). (Court Reporter Joan Columbini.) (jjo, COURT STAFF)

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(Date Filed: 12/18/2009) (Entered: 12/18/2009)
62 ORDER by Judge Jeffrey S. White GRANTING 43 Motion for Preliminary Approval of Settlement and GRANTING Collective and Class Action Notification. (jswlc2, COURT STAFF) (Filed on 12/18/2009) (Entered: 12/18/2009)
63 ORDER Approving Notice of Settlement of Class and Collective Action. Signed by Judge Jeffrey S. White on December 18, 2009. (jswlc2, COURT STAFF) (Filed on 12/18/2009) (Entered: 12/18/2009)
64 STIPULATION OF THE PARTIES REQUESTING TO HAVE THEIR JOINT MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT HEARD ON APRIL 9, 2010 by Dennis Newsham, Rosalie Pearson. (Schwartz, Bryan) (Filed on 2/9/2010) (Entered: 02/09/2010)
65 Declaration of Bryan J. Schwartz, Esq. in Support of 64 Stipulation OF THE PARTIES REQUESTING TO HAVE THEIR JOINT MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT HEARD ON APRIL 9, 2010 filed byDennis Newsham, Rosalie Pearson. (Attachments: # 1 Exhibit A)(Related document(s) 64 ) (Schwartz, Bryan) (Filed on 2/9/2010) (Entered: 02/09/2010)
66 ORDER granting 64 Stipulation OF THE PARTIES REQUESTING TO HAVE THEIR JOINT MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT HEARD ON APRIL 9, 2010. Signed by Judge JEFFREY S. WHITE on 2/17/10. (jjo, COURT STAFF) (Filed on 2/17/2010) (Entered: 02/17/2010)
Set/Reset Deadlines as to Motion Hearing set for 4/9/2010 09:00 AM. (hdj, COURT STAFF) (Filed on 2/17/2010) (Entered: 02/18/2010)
67 NOTICE of Appearance by Hillary Jo Baker (Baker, Hillary) (Filed on 4/1/2010) (Entered: 04/01/2010)
68 EXHIBITS RE: 43 Joint Motion for Settlement filed byDennis Newsham, Rosalie Pearson, Samsonite Company Stores, Inc., Samsonite Corporation. (Attachments: # 1 Exhibit B (Revised 4/1/2010), # 2 Exhibit C)(Baker, Hillary) (Filed on 4/2/2010) (Entered: 04/02/2010)
69 Declaration of DANIEL H. LEE in Support of 68 Exhibits, DECLARATION OF DANIEL H. LEE IN SUPPORT OF JOINT MOTION FOR FINAL APPROVAL OF SETTLEMENT filed bySamsonite Company Stores, Inc., Samsonite Corporation. (Related document(s) 68 ) (Lee, Daniel) (Filed on 4/2/2010) (Entered: 04/02/2010)
70 Joint MOTION for Settlement for Final Approval of Class Action Settlement and Plaintiffs' Unopposed Motion for Representative Plaintiffs' Enhancements and Plaintiffs' Attorneys' Fees and Costs filed by Dennis Newsham, Rosalie Pearson, Samsonite Company Stores, Inc., Samsonite Corporation. Motion Hearing set for 4/9/2010 09:00 AM in Courtroom 11, 19th Floor, San Francisco. (Schwartz, Bryan) (Filed on 4/2/2010) (Entered: 04/02/2010)
71 Proposed Order re 70 Joint MOTION for Settlement for Final Approval of Class Action Settlement and Plaintiffs' Unopposed Motion for Representative Plaintiffs' Enhancements and Plaintiffs' Attorneys' Fees and Costs by Dennis Newsham, Rosalie Pearson, Samsonite Company Stores, Inc., Samsonite Corporation. (Schwartz, Bryan) (Filed on 4/2/2010) (Entered: 04/02/2010)
72 Declaration of Bryan J. Schwartz, Esq. in Support of 70 Joint MOTION for Settlement for Final Approval of Class Action Settlement and Plaintiffs' Unopposed Motion for Representative Plaintiffs' Enhancements and Plaintiffs' Attorneys' Fees and Costs filed byDennis Newsham, Rosalie Pearson. (Related document(s) 70 ) (Schwartz, Bryan) (Filed on 4/2/2010) (Entered: 04/02/2010)
73 Declaration of Jonathan Paul in Support of 70 Joint MOTION for Settlement for Final Approval of Class Action Settlement and Plaintiffs' Unopposed Motion for Representative Plaintiffs' Enhancements and Plaintiffs' Attorneys' Fees and Costs , including Exhibits A and B to Declaration filed byDennis Newsham, Rosalie Pearson, Samsonite Company Stores, Inc., Samsonite Corporation. (Related document(s) 70 ) (Schwartz, Bryan) (Filed on 4/2/2010) (Entered: 04/02/2010)

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04/02/2010
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74 Declaration of David Borgen in Support of 70 Joint MOTION for Settlement for Final Approval of Class Action Settlement and Plaintiffs' Unopposed Motion for Representative Plaintiffs' Enhancements and Plaintiffs' Attorneys' Fees and Costs , including Exhibits A and B to Declaration filed byDennis Newsham, Rosalie Pearson. (Related document(s) 70 ) (Schwartz, Bryan) (Filed on 4/2/2010) (Entered: 04/02/2010)
75 Declaration of Hillary Jo Baker, Esq. in Support of 70 Joint MOTION for Settlement for Final Approval of Class Action Settlement and Plaintiffs' Unopposed Motion for Representative Plaintiffs' Enhancements and Plaintiffs' Attorneys' Fees and Costs filed byDennis Newsham, Rosalie Pearson. (Related document(s) 70 ) (Baker, Hillary) (Filed on 4/2/2010) (Entered: 04/02/2010)
76 MOTION to Seal Document 75 Declaration in Support, filed by Dennis Newsham, Rosalie Pearson, Samsonite Company Stores, Inc., Samsonite Corporation. Motion Hearing set for 4/9/2010 09:00 AM in Courtroom 11, 19th Floor, San Francisco. (Attachments: # 1 Affidavit Declaration of Bryan J. Schwartz, Esq. In Support of Motion to File Under Seal, # 2 Proposed Order [Proposed] Order Granting Motion to File Under Seal)(Baker, Hillary) (Filed on 4/2/2010) (Entered: 04/02/2010)
77 CERTIFICATE OF SERVICE by Dennis Newsham, Rosalie Pearson re 76 MOTION to Seal Document 75 Declaration in Support, MOTION to Seal Document 75 Declaration in Support,, 75 Declaration in Support, (Baker, Hillary) (Filed on 4/2/2010) (Entered: 04/02/2010)
79 (UNDER SEAL) EXHIBIT 1 70 Joint MOTION for Settlement for Final Approval of Class Action Settlement and Plaintiffs' Unopposed Motion for Representative Plaintiffs' Enhancements and Plaintiffs' Attorneys' Fees and Costs filed byDennis Newsham, Rosalie Pearson. (Related document(s) 70 ) (hdj, COURT STAFF) (Filed on 4/5/2010) (Entered: 04/06/2010)
78 ORDER by Judge Jeffrey S. White granting 76 Motion to Seal Document (jjo, COURT STAFF) (Filed on 4/6/2010) (Entered: 04/06/2010)
80 Minute Entry: Motion Hearing held on 4/9/2010 before Judge Jeffrey S. White. The Motion for Final Approval of Class Action Settlement is taken under submission. (Court Reporter: Jim Yeomans) (rbe, COURT STAFF) (Date Filed: 4/9/2010) (Entered: 04/09/2010)
81 ORDER by Judge Jeffrey S. White GRANTING 70 Motion for Settlement and Final Judgment. (jswlc2, COURT STAFF) (Filed on 4/9/2010) (Entered: 04/09/2010)
82 NOTICE by Dennis Newsham, Rosalie Pearson of Settlement Distribution (Schwartz, Bryan) (Filed on 4/27/2010) (Entered: 04/27/2010)
83 NOTICE by Dennis Newsham, Rosalie Pearson of Second Settlement Distribution (Schwartz, Bryan) (Filed on 8/23/2010) (Entered: 08/23/2010)