Resolving Wage and Hour Cases Through Mediation and Negotiated Settlement

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

TUESDAY, OCTOBER 1, 2013

Presenting a live 90-minute webinar with interactive Q&A

Margaret A. Keane, Partner, DLA Piper LLP (US), San Francisco

Eric S. Beane, Partner, DLA Piper LLP (US), Los Angeles

Tips for Optimal Quality

Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-888-601-3873 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

FOR LIVE EVENT ONLY

Continuing Education Credits

For CLE purposes, please let us know how many people are listening at your location by completing each of the following steps:

• In the chat box, type (1) your company name and (2) the number of attendees at your location

• Click the word balloon button to send

FOR LIVE EVENT ONLY

So You Want to Settle A Wage and Hour Class Action . . .

Margaret A. Keane DLA Piper LLP (US) 555 Mission Street

Suite 2400 San Francisco, CA 94105

(415) 836-2500

October 1, 2013

Strafford Publications Eric S. Beane

DLA Piper LLP (US) 2000 Avenue of the Stars

Suite 400 North Tower Los Angeles, CA 90067

(310) 595-3000

Presented by:

Deciding to Settle: Assess Your Case

Liability

Damages

Cost to Defend – Internal and External

Willingness to change business practices being challenged

Likelihood that claim(s) will be certified as class or collective action

Forum

Imponderables

5 242703497v2

Assess Your Case: Liability

Nature of Claims

Strength of Named Plaintiffs’ Claims Conduct a detailed investigation of the claims

Review all compensation and personnel records for Named Plaintiffs

Analyze pertinent company policies

Interview Named Plaintiffs’ Managers/Supervisors

Consider interviewing other employees holding same position as Named Plaintiff

What Are Your Defenses?

6 242703497v2

Assess Your Case: Damages

Duration of Class Period – Understand applicable statutes of limitations

Availability of Liquidated Damages or Other Penalties (ex. Meal period or rest break penalties, PAGA penalties – available even if no class certified)

Build Basic Damage Model – test assumptions based on different class certification and liability outcomes Estimate alleged unpaid wages (overtime, off-the-clock work, etc.) per

employee

Estimate potential penalties based on claims alleged

Build spreadsheets with relevant payroll data

Evaluate liability

Likelihood of certification and class parameters

Evaluate resources and capability of adversary

Benchmark other settlements in your industry

7 242703497v2

Assess Your Case: Willingness to Change Business Practices

Is the practice being challenged a current business practice?

Evaluate whether settling case will require you to change certain business practices Reclassification of employees from exempt to non-exempt

Changing how you handle reimbursement of expenses

Adjusting scheduling of employees or methods used to record time worked

Determine whether you are willing to voluntarily change business practices

Factor in the effects of any changes to business practices in your assessment of the case

242703497v1 8

Assess Your Case: Cost to Defend

Counsel Fees – inside and outside

Expenses – E-Discovery, including costs of implementing hold order, experts, etc.

Internal costs and disruption

9 242703497v1

Assess Your Case: Strength of Class Claim

Identify individual issues that may preclude certification

Research your judge’s post-Dukes and post-Brinker rulings on class certification motions

Evaluate whether you want to mediate pre-certification or wait until after briefing or a class hearing

Consider settling with individuals pre-certification Settling with or serving Offer of Judgment on Named Plaintiff

mooting class or collective action

Differences between FLSA and state law employment claims

242703497v1 10

Assess Your Case: Forum

Prospect of pre-certification settlement with Individual Putative Class Members -- differences in forum effect ability to settle only with Named Plaintiff(s)

Judge’s track record with wage and hour class actions and dispositive motions

Jury pool

Speed of docket – congested or rocket docket?

Law on attorneys’ fees

Arbitration clauses and class waiver

Discovery issues

Availability of liquidated damages and penalties 11 242703497v1

Assess Your claim: Imponderables

Publicity Concerns

Are you defending claims against an acquired company?

Are you looking to sell the company?

Are you currently seeking financing/contemplating a public or private offering?

12 242703497v1

Deciding to Enter Into Settlement Discussions: Timing

Do you have a strong/weak case on liability?

What information is needed for productive settlements?

What do you need for early case assessment and business decision-makers?

What does plaintiff’s counsel need to defend the settlement decision – Kullar v. Foot Locker, Munoz v. BCI Coca Cola Bottling Co. of Los Angeles

Do you need to depose plaintiffs?

Does plaintiff’s counsel need to depose a corporate designee regarding certain key issues

Before or after class certification decision?

13 242703497v1

Positioning Case for Settlement Discussions

Filing Motion for Summary Judgment as to Named Plaintiffs’ Claims

Filing Proactive Motion to Preclude Class Certification or Conditional Certification (FLSA)

Enter into settlement discussions while Motion for Summary Judgment or Class Certification Motion pending

242703497v1 14

Is Mediation Necessary?

Parties can engage in settlement negotiations without participating in formal mediation

Factors to consider in deciding whether settlement discussions without a mediator are likely to be fruitful Relationship between counsel for parties

Cooperation between parties in connection with formal or informal information exchange necessary to evaluate case

Trust between the parties

Typical pattern of settlement negotiations leading to successful resolution Exchange of letters/conferences between counsel setting forth positions

on claims at issue

242703497v1 15

Is Mediation Necessary?

exchange of documents and information necessary for parties to evaluate strength/weaknesses of claims and range of potential damages

In person meeting(s) between counsel and parties

Benefits of Settlement Negotiations without mediator Flexibility with scheduling discussions and in-person meetings Decreased cost (mediators charge thousands of dollars for mediation

sessions)

242703497v1 16

Selecting a Mediator

No mediator is perfect for every case – select the right mediator based on the specific facts and circumstances of the case

Look for experience in wage and hour class actions in your jurisdiction Evaluate the most important qualities for a mediator depending on the circumstances of

case (i.e. nature of claims, relationship between parties/counsel) Is it important to one or both parties that mediator was a former Judge or a former Plaintiff or

Defense counsel Mediators need to be both evaluative (assessing strengths and weaknesses of the parties

positions) and facilitative (working to bring the parties to a middle ground) Ask for references from both plaintiffs’ and defendants’ counsel Interview proposed mediators Make sure both parties are satisfied with the mediator ultimately selected Pre-mediation preparation by mediators and parties is essential Mediator should set up pre-mediation calls with parties, jointly and separately Provide mediator with a comprehensive brief addressing the issues in the case Consider exchanging briefs in advance of mediation while providing a supplemental

confidential brief

17 242703497v1

Preparing for Mediation

Pre-mediation preparation by mediators and parties is essential

Mediator should set up pre-mediation calls with parties, jointly and separately

Provide mediator with a comprehensive brief addressing the issues in the case

Consider exchanging briefs in advance of mediation while providing a supplemental confidential brief to mediator that frankly evaluates potential barriers to settlement and/or weaknesses in the case

Make sure that key decision makers are present at the mediation – it is extremely difficult to effectively evaluate what is going on at a mediation without being there

242703497v1 18

Questions?

242703497v1 19

So You Want to Settle A Wage and Hour Class Action . . .

Strafford Group Publications

October 1, 2013

Margaret A. Keane, Esq. Eric S. Beane, Esq.

San Francisco Office (415) 836-2500

Los Angeles Office (310) 595-3000

margaret.keane@dlapiper.com eric.beane@dlapiper.com

242703497v1 20