JOINT STIPULATION OF SETTLEMENT AND RELEASES...JOINT STIPULATION OF SETTLEMENT AND RELEASE This...
Transcript of JOINT STIPULATION OF SETTLEMENT AND RELEASES...JOINT STIPULATION OF SETTLEMENT AND RELEASE This...
JOINT STIPULATION OF SETTLEMENT AND RELEASE
This Joint Stipulation of Settlement and Release (“Agreement”) is entered into between
Western Federal Credit Union, on the one hand, and Edith Luna (the “Named Plaintiff”), on
behalf of herself individually and on behalf of a collective group of similarly situated
individuals, on the other hand.
Western Federal Credit Union and Named Plaintiff (collectively, the “Settling Parties”)
agree to do all things and procedures reasonably necessary and appropriate to obtain approval of
this Agreement in consideration for: (a) payment by Western Federal Credit Union of the
consideration expressed in this Agreement subject to the terms, conditions, and limitations of this
Agreement; (b) the release and dismissal with prejudice of all claims as set forth in this
Agreement; and (c) other valuable monetary and non-monetary consideration as set forth in this
Agreement. This Agreement is contingent upon approval by the Court and is entered into
voluntarily by the Settling Parties for settlement purposes only.
RECITALS
WHEREAS, Named Plaintiff has asserted claims against Western Federal Credit Union
under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., based on the alleged
misclassification of Named Plaintiff as exempt from overtime and the failure to pay overtime
compensation to Named Plaintiff and others similarly situated; and
WHEREAS, the purpose of this Agreement is to settle fully and finally all Released
Claims (as hereinafter defined) that Named Plaintiff and any individuals who opt in to the
Litigation (as defined below) may have against Western Federal Credit Union; and
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WHEREAS, Western Federal Credit Union denies that it has committed any wrongdoing
or violated any federal, state or local laws pertaining to payment of wages or hours worked, and
further denies that it is liable or owes back wages or any overtime compensation to anyone with
respect to the alleged facts or causes of action asserted in the Litigation; and
WHEREAS, Named Plaintiff and Western Federal Credit Union agreed to engage in
discussions regarding the possibility of a voluntary resolution of the asserted claims; and
WHEREAS, the Settling Parties have fiercely disputed the factual and legal allegations,
negotiated the economic and non-economic terms of a potential settlement, and have reached an
accord resulting in this Agreement as a result of contested negotiations; and
WHEREAS, the Settling Parties agreed to settle and resolve any and all claims that
could be asserted in the Litigation pursuant to the terms of this Agreement, in order to avoid the
burden, expense, risks and uncertainty of litigation.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth
in this Agreement, as well as the good and valuable consideration provided for herein, and
intending to be legally bound, the Settling Parties hereto agree to a full and complete settlement
of the Litigation and release of claims on the following terms and conditions:
I. CONSENT TO COURT-FACILITATED NOTICE
A. Potential Claimants. For settlement purposes only, the Settling Parties agree that
Named Plaintiff and the “Potential Opt-In Plaintiffs” (as defined below) are similarly situated for
purposes of the FLSA and consent to Court-facilitated notice to Named Plaintiff and Potential
Opt-in Plaintiffs. Potential Opt-in Plaintiffs shall include Named Plaintiff and those individuals
who worked for Western Federal Credit Union as exempt Branch personnel (together,
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“Managers”) who worked in all states excluding California for at least one workweek during the
period from January 29, 2013 to March 3, 2017 (the “Applicable Class Period”). The Potential
Opt-In Plaintiffs worked a total of 3,366 workweeks during the Applicable Class Period.
B. Cooperation. The Settling Parties shall cooperate and present to the Court for its
consideration in connection with the approval of the Agreement and Court-facilitated notice such
information as may be reasonably requested by the Court for approving FLSA settlements and/or
facilitated notice.
II. SETTLEMENT APPROVAL PROCEDURE
A. Plaintiff’s Filing Requirements. On or before five (5) days after the execution of
this Agreement, Counsel for Named Plaintiff shall file in the Circuit Court of the Fifteenth
Judicial Circuit in and for Palm Beach County, Florida, the Complaint to initiate the lawsuit
between the Settling Parties (the “Litigation”). Counsel for Named Plaintiff shall also file within
five (5) business days after the filing of Defendant’s Answer, the Motion for Order Approving
Settlement of Collective Action and Authorizing Notice of Settlement and Opportunity to Submit
Consent to Join Claim Form and Release (“Consent Motion”), attaching this Agreement and its
exhibits, and a proposed Order on Consent Motion (the “Approval Order”).
B. Defendant’s Filing Requirements. Counsel for Defendant shall file its Answer to
the Complaint within five (5) business days after the filing of the Complaint.
C. Settlement Contingent on Approval. If the settlement is not approved and/or does
not become final for any reason, then this Agreement purporting to settle the Litigation shall
become null and void ab initio (except for this provision) and this Agreement shall have no
bearing on, and shall not be admissible in connection with, any subsequent litigation for any
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purpose, including without limitation, whether class certification would be appropriate under the
FLSA or any applicable state law.
III. MODE, CALCULATION AND TIMING OF PAYMENT OF CLAIMS
A. Notice of Claims
1. Within seven (7) days1 of entry of the Approval Order, Western Federal
Credit Union shall provide the Settlement Claims Administrator with an Excel chart listing the
name, Social Security Number, last known address, email address, weeks worked as a Manager
during the Applicable Class Period, and location(s) of employment for Named Plaintiff and each
Potential Opt-In Plaintiff. Plaintiffs’ Counsel shall also provide the Settlement Claims
Administrator with any updated address for Named Plaintiff. Prior to the mailing of the Notice
Packet to Named Plaintiff and Potential Opt-In Plaintiffs, the Settlement Claims Administrator
shall attempt to confirm the accuracy of the addresses through the United States Post Office’s
National Change of Address database and shall mail the Notice Packet to any updated address
obtained therefrom.
2. Within forty (40) days of the entry of the Approval Order, the Settlement
Claims Administrator shall mail, in one mailing, all “Notice Packets” to Named Plaintiff and
each Potential Opt-In Plaintiff.
3. Notice Packets to the Named Plaintiff and Potential Opt-In Plaintiffs who
are currently employed by Western Federal Credit Union as of the date of execution of this
agreement (“Current-Employee Potential Opt-In Plaintiffs”) will include a fully completed
1 All time periods provided by this Agreement are stated in calendar days, not business days,
unless otherwise indicated.
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“Notice of Settlement” in the form attached hereto as Exhibit “A” hereto, which provides a
summary of the basis for settlement and the amount of the Current-Employee Potential Opt-In
Plaintiff’s Individual Settlement Payment (as calculated pursuant to paragraph III.E.2, below) as
well as his or her Individual Settlement Payment check. Said checks shall contain on the back,
under the endorsement line, the following language:
“THIRD PARTY ENDORSEMENT PROHIBITED
ENDORSEMENT BY NAMED PAYEE IS REQUIRED
This instrument is void if not cashed before [DATE]
By signing and/or endorsing this check, you are claiming your Individual
Settlement and you are consenting to join the settled lawsuit entitled Luna v.
Western Federal Credit Union, Case No. [INSERT] (Fla. Cir. Ct., Palm Beach
Cty), which was brought to recover wages under the Fair Labor Standards Act
and state law. By signing/endorsing this check, you acknowledge that you are
releasing the Released Claims against Western Federal Credit Union, as set
forth in the Notice of Settlement and Joint Stipulation of Settlement and
Release. You agree to be bound by this Settlement and not to sue or otherwise
make a claim against any of the Releasees as to any of the Released Claims.”
4. Notice Packets to Potential Opt-In Plaintiffs who are not currently
employed by Western Federal Credit Union will include a “Notice of Settlement,” in the form
attached hereto as Exhibit “B,” and a “Consent to Join Claim Form and Release,” in the form
attached as Exhibit “C” hereto. The Consent to Join Claim Form and Release shall inform
Potential Opt-In Plaintiffs who are not currently employed by Western Federal Credit Union of
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the amount of their potential Individual Settlement Payment (as calculated pursuant to paragraph
III.E.2 below) and that in order to receive the Individual Settlement Payment he or she must
complete and sign the Consent to Join Claim Form and Release and ensure it is submitted
electronically through the Class Action Administrator’s website or postmarked or received by
mail, email, or facsimile by the Settlement Claims Administrator on or before sixty (60) days
after the date the Notice Packets were initially mailed to such Potential Opt-In Plaintiffs (the
“Claim Bar Date”).
5. To the extent there are matters not covered in the Notice Packets that are
covered in this Agreement, or to the extent the Notice Packets are inconsistent with this
Agreement, this Agreement shall govern and control.
6. If any Notice Packet is returned as undeliverable to a Potential Opt-In
Plaintiff, the Settlement Claims Administrator shall promptly attempt to locate such Potential
Opt-In Plaintiff through customary skip-tracing and shall mail an additional Notice Packet to
such person to any address obtained by way of skip-trace within five (5) business days. Any
notices returned undeliverable shall be traced up to two times to obtain a new address and be re-
mailed. To the extent any mailed Notice is returned as undeliverable, such person shall be
provided the later of thirty (30) days from any re-mailing of the Notice or the Claim Bar Date (a
“Re-mailing Opt-in Period”) to submit their claim form.
7. Thirty (30) days after the initial mailing of the Notice Packets, the Claims
Administrator shall send via postcard, First Class United States mail postage prepaid, a reminder
to Named Plaintiff and Potential Opt-In Plaintiffs who have not yet cashed their settlement check
or returned their Consent to Join Claim Form and Release of their eligibility to participate in the
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Settlement by signing their check or signing and returning the previously mailed Consent to Join
Claim Form and Release.
8. In the event that Plaintiffs’ Counsel or the Settlement Claims Administrator
is contacted by a Potential Opt-In Plaintiff before the Claim Bar Date and the Potential Opt-In
Plaintiff indicates that he or she did not receive the Notice Packet, the Settlement Claims
Administrator shall mail and/or email an additional Notice Packet to the mailing address and/or
email address provided by the Potential Opt-In Plaintiff and provide any such person a
Remailing Opt-In Period.
9. Within seven (7) business days of receiving a timely Consent to Join Claim
Form and Release that does not contain a signature or sufficient information to identify the
Potential Opt-In Plaintiff, the Settlement Claims Administrator shall mail to the Potential Opt-In
Plaintiff a letter requesting the information that was not provided and giving the Potential Opt-In
Plaintiff a Remailing Opt-In Period. Any Potential Opt-In Plaintiff who fails to respond timely
to such a cure letter will not be considered a Qualified Claimant (as defined below).
10. In the event of any dispute over a Potential Opt-In Plaintiff’s weeks worked
as a Manager during the Applicable Class Period and/or the late submission of any claims, the
Settling Parties will meet and confer in good faith in an effort to resolve the dispute, and if the
Settling Parties are unable to reach an agreement, the Settlement Claims Administrator shall
decide the dispute, and issue a non-appealable, final decision as to the total amount due or
timeliness of the claim. To the extent a claim is submitted late for which there is a good faith
explanation to support the untimely submission, it will be presumed that the Settlement Claims
Administrator will accept the claim except that no late claim shall be accepted after final
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reversion of any remaining funds in the Qualified Settlement Fund to Western Federal Credit
Union (as described in paragraph III.H below). Additionally, in the case of a dispute over a
Potential Opt-In Plaintiff’s weeks worked as a Manager during the Applicable Class Period,
Western Federal Credit Union’s records shall control and will have a rebuttable presumption of
correctness.
11. The Named Plaintiff and Potential Opt-In Plaintiffs who are currently
employed by Western Federal Credit Union who cash their settlement checks, and Potential Opt-
In Plaintiffs who were formerly employed by Western Federal Credit Union who timely return
completed and executed Consent to Join Claim Forms and Releases will be considered
“Qualified Claimants.”
12. Within ten (10) days after the Claim Bar Date or Remailing Opt-In Period
(whichever is later), the Settlement Claims Administrator shall provide to Western Federal
Credit Union’s Counsel and Plaintiffs’ Counsel a list of Qualified Claimants and shall provide
electronic copies of all timely received and completed Consent to Join Claim Forms and
Releases.
13. At the conclusion of the settlement administration process, the Settlement
Claims Administrator shall maintain an electronic copy of all Consent to Join Claim Forms and
Releases and negotiated settlement checks received by Named Plaintiff and Potential Opt-In
Plaintiffs and shall provide the original Consent to Join Claim Forms and Releases and copies of
negotiated settlement checks to Counsel for Western Federal Credit Union. The Settlement
Claims Administrator shall also provide Counsel for Western Federal Credit Union and
Plaintiffs’ Counsel a register listing all Qualified Claimants and the payment amount made to
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each Qualified Claimant, including the amount of tax withholdings and the employer’s share of
payroll taxes.
B. Creation and Implementation of a Qualified Settlement Fund
1. Establishing the Qualified Settlement Fund. The Gross Settlement Fund
will be deposited in an account titled Western Federal Credit Union Non-California Managers
Settlement Fund (the “Settlement Fund”), intended by the Settling Parties to be a “Qualified
Settlement Fund” as described in Section 468B of the Internal Revenue Code of 1986, as
amended, and Treas. Reg. Section 1.468B-1, et seq. The Settlement Fund shall be established as
a Qualified Settlement Fund within the meaning of Section 468B of the Internal Revenue Code
of 1986, as amended, the Treas. Reg. Section 1.468B-1, et seq., and shall be administered by the
Settlement Claims Administrator, subject to the ultimate authority of the Court.
2. Administering the Settlement Fund. The Settlement Claims Administrator
shall serve as Trustee of the Settlement Fund and shall act as a fiduciary with respect to the
handling, management, and distribution of the Settlement Fund, including the handling of tax-
related issues and payments. The Settlement Claims Administrator shall act in a manner
necessary to qualify the Settlement Fund as a Qualified Settlement Fund and to maintain that
qualification. The Settling Parties shall cooperate to ensure such treatment and shall not take a
position in any filing or before any tax authority inconsistent with such treatment.
C. Gross Settlement Fund
1. Gross Settlement Fund. In consideration for the dismissal with prejudice of
the Litigation as well as the release of claims effected by this Agreement and other good and
valuable consideration, within five (5) business days of entry of the Approval Order, Western
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Federal Credit Union shall deposit into the QSF by wire transfer a maximum of Two Hundred
Twelve Thousand Six Hundred and Fifty Dollars ($212,650.00) (the “Gross Settlement Fund”) to
settle the Litigation. With the exception of the Employer’s Share of Payroll Taxes, the Gross
Fund shall be all that Western Federal Credit Union or Released Parties (as defined below) shall
pay to settle the Litigation and assumes that 100% of Named Plaintiff and Potential Opt-in
Plaintiffs become Qualified Claimants. The Gross Fund is exclusive of any and all interest or
investment income accrued, which accrued interest/income shall inure to Western Federal Credit
Union.
2. Service Payment. From the Gross Settlement Fund, Plaintiffs’ Counsel
shall seek a Service Payment of $10,000.00 to Named Plaintiff Edith Luna (the “Service
Payment Recipient”) as payment for her involvement in commencing and discovering the claims
represented in this Litigation and her involvement in obtaining this settlement for all Potential
Opt-In Plaintiffs. Western Federal Credit Union will not oppose such motion. The settlement is
not conditioned upon the Court’s approval of the requested Service Payment. The Settlement
Claims Administrator will not withhold taxes from the Service Payment, but will report the
Service Payment on IRS Form 1099s. Any amount of the requested Service Payment not
approved by the Court shall be included as part of the Net Settlement Fund.
3. Attorneys’ Fees and Costs Amounts. From the Gross Settlement Fund,
Plaintiffs’ Counsel shall make an application to the Court for an award of attorneys’ fees and
costs of $110,000.00 (the “Attorneys’ Fees and Litigation Costs”). Western Federal Credit
Union will not oppose Plaintiffs’ Counsel’s motion for Attorneys’ Fees and Litigation Costs.
The settlement is not conditioned upon the Court’s approval of Plaintiffs’ Counsel’s petition for
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Attorneys’ Fees and Litigation Costs in the stated amounts. Payment of such approved
attorneys’ fees, expenses, and costs to Plaintiffs’ Counsel shall be made in accordance with this
Agreement and shall constitute full satisfaction of any and all obligations by Western Federal
Credit Union to pay any person, attorney or law firm for attorneys’ fees, expenses or costs
incurred on behalf of Named Plaintiff, any Potential Opt-In Plaintiffs, and any Qualified
Claimants. The Settlement Claims Administrator shall report the payment of these fees,
expenses and costs to Plaintiffs’ Counsel on an IRS Form 1099. Any amount of the attorneys’
fees and costs not approved by the Court shall be included as part of the Net Settlement Fund.
4. Settlement Administration Costs. All Settlement Administration Costs,
estimated to be $8,500.00, shall be paid from the Gross Settlement Fund. Any amount of the
Gross Settlement Fund allocated to Settlement Administration Costs that is not actually incurred
as a cost shall be included as part of the Net Settlement Fund. If the Settlement Administration
Costs exceed $8,500.00, Western Federal Credit Union shall pay the additional costs separate
from the Gross Settlement Fund.
D. Timing of Payments from Gross Settlement Fund. Within forty days of
entry of the Approval Order, the Settlement Claims Administrator shall: (1) pay Plaintiffs’
Counsel by wire transfer the amount of Attorneys’ Fees and Litigation Costs approved and
ordered by the Court, (2) pay Named Plaintiff by federal express overnight delivery the amount
of the Service Payment approved and ordered by the Court, unless Named Plaintiff has not yet
satisfied the requirement of paragraph IV.B herein, in which case the Service Payment will be
paid within five (5) days of satisfaction of that provision, and (3) deduct the approved Settlement
Administration Costs for its services.
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E. Net Settlement Fund
1. Net Settlement Fund. The “Net Settlement Fund” means the remainder of
the Gross Settlement Fund after deductions for: (i) the Service Payment awarded by the Court;
(ii) Attorneys’ Fees and costs awarded by the Court; and (iii) the Settlement Administration
Costs.
2. Allocation of Net Settlement Fund. The Settlement Claims Administrator
shall issue “Individual Settlement Payment” checks from the Net Settlement Fund to Named
Plaintiff, each Current-Employee Potential Opt-In Plaintiff, and each Qualified Claimant not
currently employed by Western Federal Credit Union as of the date of execution of this
Agreement (a “Former-Employee Qualified Claimant”). The amount of each Individual
Settlement Payment shall be determined as follows:
(a) Each Individual Settlement Payment check shall equal $25.00 per
Workweek (as defined below) in which the payee was employed by Western Federal Credit
Union as a Manager.
(b) A “Workweek” shall mean each calendar week during the
Applicable Class Period during which the Potential Opt-in Plaintiff was employed by Western
Federal Credit Union as a Manager. If a Potential Opt-In Plaintiff was employed as a Manager at
least one (1) day in a calendar week, the week shall be rounded up to one (1) full Workweek.
The calculation of all Workweeks shall be based on Western Federal Credit Union’s business
records provided by Western Federal Credit Union to the Settlement Claims Administrator
pursuant to paragraph III.A.1.
(d) The amount of all Individual Settlement Payments not claimed by
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a Qualified Claimant shall revert to Western Federal Credit Union pursuant to paragraph III.H
below.
F. Payments to Qualified Claimants
1. Timing of Payments to Current Employees. Within forty (40) days of entry
of the Approval Order, the Settlement Claims Administrator will mail Individual Settlement
Payments with the Notice Packet by U.S. First Class Mail to Current-Employee Potential Opt-In
Plaintiffs to his or her last known address, or such other address he or she provided to the
Settlement Claims Administrator.
2. Timing of Payments to Former Employees. Within fifteen (15) business
days of the Claim Bar Date or the expiration of the Re-mailing Opt-In Period, whichever is later,
the Settlement Claims Administrator shall mail Individual Settlement Payments by U.S. First
Class Mail to each Former-Employee Qualified Claimant to his or her last known address or
such other address he or she provided to the Settlement Claims Administrator.
3. Taxes on the Individual Settlement Payments. The Individual Settlement
Payments shall be allocated 50 percent to back wages and 50 percent to liquidated damages and
interest. The back wages shall be subject to all required employee-paid payroll taxes (federal
income taxes, state income taxes, employee’s share of FICA and FUTA taxes, and other state or
local-specific statutory deductions) and other authorized or required deductions (garnishments,
tax liens, child support, etc.). The liquidated damages and interest and any Service Payment
shall be treated as non-wage income. The Settlement Claims Administrator shall report the back
wage payments to the Internal Revenue Service (“IRS”) on IRS Form W-2 and shall report the
liquidated damages, interest and Service Payments on IRS Form 1099.
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4. Tax Advice. Named Plaintiff acknowledges and agrees that she has not
relied upon any advice from Western Federal Credit Union or Plaintiff’s Counsel as to the
taxability of the payments received pursuant to this Agreement.
5. Negotiation of Settlement Checks. Any and all Individual Settlement
Payment checks shall be valid for one hundred twenty (120) days after the date on which it was
issued (the “Check Issuance Date”). After 120 days of the Check Issuance Date, the check will
be void and the gross amount of the Individual Settlement Payment shall revert to Western
Federal Credit Union and the release executed by any Former-Employee Qualified Claimant
shall remain in effect.
G. Payroll Tax Withholding and Reporting.
1. Employee Payroll Taxes. The Settling Parties recognize that the back pay
awards to Qualified Claimants will be subject to applicable tax withholding and reporting and
employer payroll taxes. The Settlement Claims Administrator shall be responsible for
withholding and timely remitting and reporting to the appropriate taxing authorities the
employee’s share of payroll taxes from the back pay award of each Qualified Claimant.
2. Employer Payroll Taxes. The Settlement Claims Administrator shall
determine the aggregate amount owed as the employer’s share of payroll taxes imposed by
applicable law on Western Federal Credit Union (i.e. the employer’s share of all FICA, FUTA,
SUTA, Medicare, and/or state unemployment taxes, collectively referred to herein as the
“Employer’s Share of Payroll Taxes”) for the back wage payment for each Qualified Claimant
and provide that number to Western Federal Credit Union after the expiration of the latest
Individual Settlement Payment check (as described in paragraph III.F.5, above) or earlier if
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required by law. Within thirty (30) days of receiving the aggregate amount owed in Employer’s
Share of Payroll Taxes from the Settlement Claims Administrator, or earlier if required by law,
Western Federal Credit Union shall pay by wire transfer to the QSF the aggregate funds
necessary to pay the Employer’s Share of Payroll Taxes, which shall be separate from and in
addition to the Gross Settlement Fund.
H. Timing of Reversion to Western Federal Credit Union
The Settling Parties agree that any funds remaining from the Gross Settlement Fund
and/or the Net Settlement Fund shall revert to Western Federal Credit Union within five (5)
business days after the latest of: (1) the date on which all Individual Settlement Payment checks
become void (see paragraph III.F.5); (2) payment to Plaintiffs’ Counsel for all attorneys’ fees,
costs, and litigation expenses approved by the Court; (3) payment to the Settlement Claims
Administrator for all Settlement Administration Costs incurred by the Settlement Claims
Administrator and approved by the Court; (4) payment to Named Plaintiff of the Service
Payment; and (5) payment of all applicable taxing agencies for all applicable federal, state and
local income taxes, and all federal and state payroll taxes required to be withheld and/or paid by
Western Federal Credit Union and/or the QSF.
I. Settlement Claims Administration
1. Selection of Settlement Claims Administrator. The Settling Parties select
Simpluris, Inc. to serve as Settlement Claims Administrator.
2. Settlement Claims Administrator’s Responsibilities. The Settlement
Claims Administrator shall be responsible for: (a) determining and finalizing the calculations of
the Individual Settlement Payments, the tax withholding amounts, and employer payroll tax
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amounts for Named Plaintiff, Potential Opt-In Plaintiffs, and Qualified Claimants, as applicable
(including with respect to the Individual Settlement Payment for purposes of the Notice and the
final settlement amounts for purpose of issuing the Individual Settlement Payments); (b)
preparing, printing and disseminating to Named Plaintiff and Potential Opt-In Plaintiffs the
Notice Packet and return envelope and the reminder notice in a final form and format approved
by Counsel for Western Federal Credit Union and Plaintiffs; (c) copying counsel for all Settling
Parties on material correspondence and promptly notifying all counsel for the Settling Parties of
any material requests or communications made by any Settling Party or Potential Opt-In Plaintiff
who receives Notice; (d) maintaining a website through which Potential Opt-In Plaintiffs may
submit and electronically sign Consent to Join Claim Forms and Releases; (e) monitoring and
maintaining a toll-free number; (f) receiving and reviewing the Consent to Join Claim Forms and
Releases submitted by Named Plaintiff and Potential Opt-In Plaintiffs to determine eligibility for
payment; (g) determining the Settlement Payment for each Potential Opt-In Plaintiff in
accordance with this Agreement; (h) mailing the settlement checks to Qualified Claimants; (i)
wiring Plaintiffs’ Counsel’s attorneys’ fees, expenses, and costs and mailing the Service Payment
and Settlement Payments in accordance with this Agreement and Order of the Court; (j)
determining the aggregate amount of employer payroll taxes owed and remitting all payroll tax
obligations of Western Federal Credit Union in accordance with this Agreement and all
applicable laws; (k) issuing W-2 and 1099 Forms for all amounts paid to Qualified Claimants;
(l) ascertaining current address and addressee information for each Notice Packet returned as
undeliverable; (m) responding to inquiries of Named Plaintiff and Potential Opt-In Plaintiffs
regarding the Agreement and procedures for returning Consent to Join Claim Forms and
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Releases; (n) referring to Plaintiffs’ Counsel all inquiries by Named Plaintiff and Potential Opt-
In Plaintiffs the Settlement Claims Administrator cannot resolve and/or which involve matters
not within the Settlement Claim Administrator’s duties specified herein; (o) responding to
inquiries of Plaintiffs’ or Western Federal Credit Union’s Counsel; (p) promptly apprising
counsel for the Settling Parties of the activities of the Settlement Claims Administrator; (q)
maintaining adequate records of its activities, including the date of the mailing of the Notice
Packets and receipt of Consent to Join Claim Forms and Releases, dates of Remailing Opt-In
Periods, returned mail and other communications and attempted written or electronic
communications with Named Plaintiff and Potential Opt-In Plaintiffs, Check Issuance Dates, and
providing Counsel with weekly reports regarding the same; (r) confirming in writing to
Plaintiffs’ and Western Federal Credit Union’s Counsel and the Court its completion of the
administration of the settlement and retaining copies of all endorsed settlement checks; (s) timely
responding to communications from the Settling Parties or their counsel; and (t) such other tasks
as customarily and regularly performed by a settlement administrator and as the Settling Parties
mutually agree.
3. Settlement Fund Fees and Expenses. All fees, expenses, and costs of the
Settlement Claims Administrator related directly or indirectly to its duties under this Agreement,
including but not limited to all fees, expenses, and costs in connection with the Gross Settlement
Fund and Net Settlement Fund, and those duties related to notice, check cutting and mailing,
claims processing, reports to counsel, court filings, legal and accounting advice relating to the
establishment of the Qualified Settlement Fund and tax treatment and tax reporting of awards to
Qualified Claimants, preparation of tax returns (and the taxes associated with such tax returns as
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defined below), calculating the estimated settlement payments and final settlement payment
amounts, and any other related duties (hereinafter collectively referred to as the “Settlement
Administration Costs”) shall be paid from the Settlement Fund after court approval.
4. Reporting by Settlement Claims Administrator. Throughout the period of
claims administration, the Settlement Claims Administrator will provide such reports to the
Settling Parties upon request by either Settling Party, regarding the status of the mailing of the
Notice Packets to Named Plaintiff and Potential Opt-In Plaintiffs, the claims administration
process, the receipt of Consent to Join Claim Forms and Releases, and distribution of the
Settlement Checks or any other aspect of the claims administration process.
5. Communication with Western Federal Credit Union and Counsel. Western
Federal Credit Union, Western Federal Credit Union’s Counsel, and Plaintiffs’ Counsel are
authorized to communicate directly with the Settlement Claims Administrator to expedite the
settlement administration process.
IV. RELEASE
A. Release By Qualified Claimants. Conditioned upon the Court’s entry of the
Approval Order, and in exchange for the monetary consideration recited in this Agreement,
Named Plaintiff and all Qualified Claimants do hereby agree to waive, release and forever
discharge Western Federal Credit Union, including its parents, subsidiaries, affiliates, divisions,
predecessors, successors and assigns, and each of their respective present and former officers,
directors, shareholders, employees, and agents (collectively with Western Federal Credit Union,
the “Released Parties”) from any and all overtime and wage-related claims that accrue or accrued
during their employment as Managers, relating back to the full extent of the longest applicable
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state and federal statute of limitations and continuing through March 3, 2017, including, without
limitations, all state and federal claims for unpaid overtime wages, straight-time wages, and
related claims for penalties, interest, liquidated damages, attorneys’ fees, costs, and expenses
under the FLSA, as well as all such claims under state law and any other state law claim they
could have alleged based on the allegation that they were misclassified as exempt from state
overtime pay requirements. This includes, but is not limited to other claims that may be brought
by a nonexempt employee, such as claims that relate to meal and rest breaks, reporting of wage
information, and untimeliness of pay (together, “Released Claims”). The Release is intended to
extinguish all wage-related claims that could be stated based on the allegations of
misclassification as exempt Managers under state and federal law during the Applicable Class
Period.
A short form description of the Released Claims will be included in the Notice of Settlement.
B. Release by Service Payment Recipient. The Service Payment Recipient
accepting a Service Payment shall execute a General Release in the form attached hereto as
Exhibit “D.”
V. NOTICES
All notices, requests, demands and other communications required or permitted to be
given pursuant to this Agreement shall be in writing and shall be delivered personally or mailed,
postage prepaid, by first-class mail to the undersigned persons at their respective addresses as set
forth herein:
Counsel for Plaintiff: Gregg I. Shavitz, Esq.
Shavitz Law Group, P.A.
1515 South Federal Highway, Suite 404
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Boca Raton, FL 33432
Tel: (561) 447-8888
Fax: (561) 447-8831
and
Justin M. Swartz, Esq.
Outten & Golden LLP
685 Third Ave., 25th Floor
New York, NY 10017
Tel: (212) 245-1000
Fax: (646) 509-2057
Counsel for Western Federal Credit Union: Glenn Briggs, Esq.
Kading Briggs, LLP
100 Spectrum Center Drive, Suite 800
Irvine, California 92618
Tel: (949) 450-8040
Fax: (949) 450-8033
VI. REPRESENTATION BY COUNSEL
All of the Settling Parties acknowledge that they have been represented by counsel
throughout all negotiations that preceded the execution of this Agreement and that this
Agreement has been executed with the consent and advice of counsel.
VII. NO ADMISSION OF LIABILITY
Western Federal Credit Union enters into this Agreement to avoid further expense and
disruption to its business. The Settling Parties acknowledge and agree that liability for the
actions that are the subject matter of this Agreement are denied and disputed by Western Federal
Credit Union. This Agreement and the settlement are a compromise and shall not be construed
as an admission of liability at any time or for any purpose, under any circumstances, by the
Settling Parties to this Agreement.
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VIII. MODIFICATION OF AGREEMENT
This Agreement may not be modified or amended except in writing, signed by the
affected Settling Parties or the respective counsel of record for the Settling Parties and as
approved by the Court.
IX. CONSTRUCTION AND INTERPRETATION
A. Entire Agreement. This Agreement constitutes the entire agreement between the
Settling Parties with respect to the subject matter contained herein and shall supersede all prior
and contemporaneous negotiations between the parties. This Agreement shall be construed as a
whole according to its fair meaning and intent, and not strictly for or against any party,
regardless of who drafted or who was principally responsible for drafting this Agreement, or any
specific term or condition thereof. The Named Plaintiff and Western Federal Credit Union
participated in the negotiation and drafting of this Agreement and had available to them the
advice and assistance of independent counsel. As such, neither Named Plaintiff nor Western
Federal Credit Union may claim that any ambiguity in this Agreement should be construed
against the other.
B. Cooperation and Further Acts. The Parties shall reasonably cooperate with each
other and shall use their reasonable best efforts to obtain the Court’s approval of this Agreement
and all of its terms. Each party, upon the request of any other party, agrees to perform such
further acts and to execute and deliver such other documents as are reasonably necessary to carry
out the provisions of this Agreement.
C. No Reliance on Representations or Extrinsic Evidence. Except as expressly
provided herein, this Agreement has not been executed in reliance upon any other oral or written
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representations or terms, and no such extrinsic oral or written representations or terms shall
modify, vary or contradict its terms. In entering into this Agreement, the Settling Parties agree
that this Agreement is to be construed according to its terms and may not be varied or
contradicted by extrinsic evidence.
D. Controlling Law. This Agreement shall be subject to, governed by, construed,
enforced and administered in accordance with the laws of the State of Florida, both in its
procedural and substantive aspects, and without regard for the principle of conflict of laws, and
shall be subject to the continuing jurisdiction of the Circuit Court of the Fifteenth Judicial Circuit
in and for Palm Beach County, Florida.
E. Severability. If any provision of this Agreement is held by a court of competent
jurisdiction to be void, voidable, unlawful or unenforceable, except the Release, the remaining
portions of this Agreement will remain in full force and effect to the extent that the effect of the
Agreement remains materially the same and the obligations of the Settling Parties remain
materially the same.
X. COUNTERPARTS
This Agreement, any amendments or modifications to it, and any other documents
required or contemplated to be executed in order to consummate this Agreement, may be
executed in one or more counterparts, each of which shall be deemed an original of this
Agreement. All counterparts of any such document together shall constitute one and the same
instrument. A photocopy, facsimile, or digital image of an executed counterpart shall be
enforceable and admissible as an original.
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XI. BINDING EFFECT
This Agreement is binding upon and shall inure to the benefit of the Settling Parties to
this Agreement. Without limiting the foregoing, this Agreement specifically shall inure to the
benefit of Western Federal Credit Union as well as its present and former owners, stockholders,
predecessors, successors, joint ventures, assigns, agents, directors, officers, board members,
employees, representatives, insurers, attorneys, parents, subsidiaries, benefit plans, plan
fiduciaries, affiliated divisions and companies, and all persons acting by, through, under or in
concert with any of them. Also without limiting the foregoing, this Agreement shall be binding
upon the heirs, assigns, administrators, executors, beneficiaries, conservators, and successors of
all Qualified Claimants.
XII. ATTORNEY FEES, COSTS AND EXPENSES
Except as otherwise specifically provided herein, the Settling Parties and all Qualified
Claimants shall bear responsibility for their own attorneys’ fees, costs and expenses, taxable or
otherwise, incurred by them or arising out of this litigation and shall not seek reimbursement
thereof from any party to this Agreement. However, in the event of any dispute to enforce the
terms of this Agreement, the prevailing party shall be entitled to an award of their reasonable
attorneys’ fees and costs from the non-prevailing party.
XIII. AUTHORITY OF COUNSEL
A. Facsimile, Electronic, and Email Signatures. Any Settling Party may execute this
Agreement by signing or by causing its counsel to sign on the designated signature block below
and transmitting that signature page via facsimile, email, or other electronic means to counsel for
the other Settling Party. Any signature made and transmitted by facsimile, email, or other
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electronic means for the purpose of executing this Agreement shall be deemed an original
signature for purposes of this Agreement and shall be binding upon the Settling Party whose
counsel transmits the signature page by facsimile or email.
B. Voluntary Signature. All Settling Parties agree that they have signed this
Agreement, or authorized their counsel to sign this Agreement on their behalf, knowingly,
voluntarily, with full knowledge of its significance, and without coercion.
C. Warranty of Counsel. Plaintiffs’ Counsel warrant and represent that they are
expressly authorized by Named Plaintiff to take all appropriate action required or permitted to be
taken pursuant to this Agreement in order to effectuate its terms. Counsel for Western Federal
Credit Union warrant and represent that they are authorized to take all appropriate action
required or permitted to be taken by Western Federal Credit Union pursuant to this Agreement in
order to effectuate its terms.
XIV. CONTINUING JURISDICTION
The Parties hereto agree to move for the Circuit Court of the Fifteenth Judicial Circuit in
and for Palm Beach County, Florida to retain continuing jurisdiction to construe, interpret and
enforce the provisions of this Agreement; to supervise the administration and distribution of the
resulting settlement funds; and to hear and adjudicate any dispute or litigation arising from or
related to this Agreement or the issues of law and facts asserted in the collective action litigation.
XV. EFFECT OF NON-APPROVAL
In the event that the Agreement is not approved by the Court for any reason in the form
submitted by the Settling Parties, the Settling Parties will attempt to address any concerns raised
by the Court and resubmit a revised settlement agreement if possible. If the Settling Parties
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cannot agree on a revised settlement agreement or if the Court denies the approval of a
renegotiated settlement agreement, this Agreement or the re-negotiated agreement shall be
terminated as of the date the Court’s order denying approval of the Agreement or renegotiated
agreement was entered. In such event, the Settling Parties shall immediately file a joint
stipulation for dismissal without prejudice. Upon termination of this Agreement or any
renegotiated agreement: (A) This Agreement and, if applicable, the renegotiated agreement shall
have no force or effect and no Settling Party shall be bound by any of its terms; (B) the
stipulation that the Potential Opt-in Plaintiffs are similarly situated to Named Plaintiff under 29
U.S.C. Section 216(b) and any other law and the releases given shall be null and void; (C)
Western Federal Credit Union shall retain the right to remove any newly-filed case, to contest
whether the case should be maintained as a class or collective action, and to contest the merits of
the claims being asserted in the case; and (D) nothing in this Agreement shall be used or
construed by or against any party as a determination, admission, or concession of any issue of
law or fact in the litigation; and the Settling Parties do not waive, and instead expressly reserve,
their respective rights with respect to the prosecution and defense of the litigation.
DATED: October ___, 2017
WESTERN FEDERAL CREDIT UNION:
By: ____________________________________
Its: ____________________________________
DATED: October ___, 2017
EDITH LUNA
____________________________________
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