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
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Resolving Wage and Hour Cases Through Mediation and Negotiated Settlement
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
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FOR LIVE EVENT ONLY
Continuing Education Credits
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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
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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?
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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
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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
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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
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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
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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?
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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?
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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
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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
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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)
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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
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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
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Questions?
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So You Want to Settle A Wage and Hour Class Action . . .