JOINT MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT … · Case 1:16-cv-03592-SCJ Document 53 Filed...

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION ) DEMETRIA DAVIS, individually and on ) behalf of all similarly situated individuals, ) ) Plaintiff, ) ) vs. ) Case No. 1:16-cv-03592-SCJ ) ATHENAHEALTH, INC., ) ) Defendant. ) )

JOINT MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT AND RELEASE

COME NOW Plaintiffs and Defendant (collectively the “Parties”), by and

through their respective undersigned counsel, hereby file this Joint Motion for

Approval of Settlement Agreement and Release. In support of their joint motion,

the Parties state as follows:

STATEMENT OF FACTS AND SUMMARY OF PROCEEDINGS

This is an overtime collective action under the Fair Labor Standards Act

(“FLSA”). Plaintiffs, who previously and currently work(ed) for athenahealth, Inc.

(“athenahealth” or “Defendant”) in one or more work weeks under the job title of

“Senior Client Implementation Support Analyst” sued Defendant alleging the

Case 1:16-cv-03592-SCJ Document 53 Filed 04/27/17 Page 1 of 27

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claim of failure to pay overtime compensation for hours worked under the FLSA

due to misclassification as exempt employees. Defendant denied liability. The

Parties agreed to settle the case and now request this Court’s approve the

settlement agreement and release.

A. Pleadings, Discovery, and Pre-Trial Motions.

This case was filed by Plaintiffs on September 26, 2016. On November 2,

2016, the Parties filed a Joint Motion to Stay the case pending mediation and

issuance of notice to the putative class members. (See Doc. No. 14.) This Court

granted the Parties’ Motion on November 7, 2016. (See Doc. No. 17.) In addition

to the Named Plaintiff, seventy (70) other current and former Senior Client

Implementation Support Analyst filed consents to participate in this case. (See

Doc. Nos. 16-48.) The Parties exchanged discovery for the purposes of settlement.

The Parties agreed to conduct a private mediation following the close of the opt-in

period.

B. Settlement

On March 8, 2017, the Parties conducted a successful private mediation with

Ellen Malow of Malow Mediation & Arbitration, Inc. (Desai Decl. ¶ 3.) The

Parties reached a settlement as to all claims in the litigation, including all claims

encompassed by Plaintiff’s Complaint. (Id.) The Parties then executed a


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Settlement Agreement and Release (the “Agreement”) that memorializes the terms

of the settlement, a copy of which is attached hereto as Exhibit 1. The Parties

agreed that they would submit this Joint Motion for Approval to this Honorable

Court requesting the Court’s approval of the Agreement.

ARGUMENT AND CITATION OF AUTHORITY

In order to have an enforceable release of FLSA claims in this Circuit, the

Court must review and approve agreements settling alleged violations of the

FLSA. See Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 (1945); see also

Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982) (holding

claims for back wages arising under the FLSA may be settled or compromised only

with approval of the Secretary of Labor or the court). “When employees bring a

private action for back wages under the FLSA, and present to the district court a

proposed settlement, the district court may enter a stipulated judgment after

scrutinizing the settlement for fairness.” Lynn’s Food Stores, Inc., 679 F.2d at

1353. Accordingly, the Parties are submitting a copy of the Agreement for the

Court’s review and approval. A proposed Order approving the Agreement is

attached hereto as Exhibit 2.

I. APPROVAL OF PAYMENTS TO PLAINTIFFS

In order to approve a settlement of overtime claims proposed by an


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employer and an employee, a court must determine that the settlement is a “fair

and reasonable resolution of a bona fide dispute” of the claims raised pursuant to

the FLSA. Lynn's Food Stores, Inc., 679 F.2d at 1355. There is a strong

presumption in favor of finding a settlement fair. See Murchison v. Grand Cypress

Hotel Corp., 13 F.3d 1483, 1486 (11th Cir. 1994) (noting that Eleventh Circuit

Court of Appeals “favor[s] and encourage[s] settlements in order to conserve

judicial resources.”). The Eleventh Circuit has detailed the circumstances that

justify court approval of an FLSA settlement in a litigation context as follows:

Settlements may be permissible in the context of a suit brought by employees under the FLSA for back wages because initiation of the action by the employees provides some assurance of an adversarial context. The employees are likely to be represented by an attorney who can protect their rights under the statute. Thus, when the parties submit a settlement to the court for approval, the settlement is more likely to reflect a reasonable compromise of disputed issues than a mere waiver of statutory rights brought by an employer’s overreaching. If a settlement in an employee FLSA suit does reflect a reasonable compromise over issues, such as FLSA coverage or computation of back wages that are actually in dispute, we allow the district court to approve the settlement in order to promote the policy of encouraging settlement of litigation.

Lynn's Food Stores, Inc., 679 F.2d at 1355. In determining whether the settlement

is fair, adequate, and reasonable, courts sometimes examine the factors used in

approving the settlement of class actions under Federal Rule of Civil Procedure 23:

(1) the existence of collusion behind the settlement; (2) the complexity, expense, and likely duration of the litigation;


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(3) the stage of the proceedings and the amount of discovery completed; (4) the probability of plaintiff's success on the merits; (5) the range of possible recovery; and (6) the opinions of counsel.

See e.g., Prieto v. Scheeler's Cafe De Marco, Inc., 2017 WL 359220, at *1 (M.D.

Fla. Jan. 9, 2017) (citing Leverso v. SouthTrust Bank of Ala., Nat’l Ass’n, 18 F.3d

1527, 1531 n.6 (11th Cir. 1994)); Garcia v. Riccy's Landscaping Servs., Inc., No.

6:08-cv-706-Orl- 28GJK, 2009 WL 347418 at *2 (M.D. Fla. Feb. 11, 2009);

Hitchcock v. Orange County, Fla., No. 604CV1722ORL28JGG, 2006 WL

3614925 at *3 (M.D. Fla. Dec. 11, 2006).1 As set forth below, examination of each

of these factors shows that the terms of the Agreement are fair, adequate, and

reasonable and should be approved by the Court.

1. The Possible Existence of Collusion.

Defendant contends that all Plaintiffs were exempt from the overtime

requirements of the FLSA. Nonetheless, the Parties exchanged their respective

valuations of potential damages if Plaintiffs were to succeed in proving FLSA

liability in this case. (Desai Decl. ¶ 4.) Defendant did not keep track of Plaintiffs’

hours of work during the time period covered by this settlement, but does possess

1 The Parties note, however, that concern for absent class members, which underlies the approval factors in a Rule 23 settlement is less present in an FLSA settlement such as this one, where each opt-in Plaintiff has the right to review and accept or reject the settlement agreement.


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reports of “Go-Lives” or client visits conducted by the Plaintiffs during their

employment, which Defendant produced to Plaintiffs in advance of mediation. (Id.)

Records of Go-Live weeks were important because Plaintiffs alleged they worked

significantly more overtime during their Go-Live weeks than they did during their

initial training weeks or in the weeks they spent in call center roles in

athenahealth’s Atlanta office. (Id.) In addition, Defendant produced to Plaintiffs’

counsel Plaintiffs’ pay records. (Id.) Counsel for both Plaintiffs and Defendant

conducted independent calculations of potential liabilities based on these records.

(Id.)

Plaintiff provided Defendant with a damages calculation based on each

Plaintiff’s alleged FLSA damages, calculated by dividing weekly salary by 40

hours to determine regular rate, then calculating overtime at time and a half that

regular rate (“Plaintiffs’ calculations”). (Desai Decl. ¶ 5.)2 Plaintiff provided

Defendant with Plaintiff’s analysis of the potential maximum liability if all

disputed issues were resolved in their favor, including liquidated damages. (Id.)

This analysis of potential maximum liability in Plaintiffs’ estimates was based on

Plaintiffs’ overtime estimates, which averaged 20 overtime hours during Go-Live

2 Defendant also paid bonuses, which Plaintiffs’ counsel divided by total hours worked and multiplied by 0.5 the resulting regular rate to add to the overtime damages based on salary earnings. (Desai Dec. ¶ 5.)


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weeks, 8 overtime hours during call center weeks, and 2.5 overtime hours during

training weeks. (Id. at ¶ 6.) The analysis also assumed rejection of Defendant’s

defense that the Plaintiffs were exempt from the overtime requirements of the

FLSA; a favorable calculation of Defendant’s overtime liability in the amount of

time and one-half Plaintiffs’ regular rate (salary divided by forty hours) for all

hours worked over forty in a work week; and doubling the overtime back pay

award for full liquidated damages. (Id.) Defendant disagreed with Plaintiffs’

positions and calculations.

Defendant provided Plaintiffs with its calculation of Plaintiffs’ potential

damages, which was calculated by dividing weekly compensation amounts by all

hours worked each week to determine regular rate, then calculating overtime at

only one-half that decreased regular rate (“Defendant’s calculations”). Defendant’s

calculation assumed 2 overtime hours during Go-Live weeks and no overtime

hours during training weeks or call center weeks. Defendant presented Plaintiffs

with alternative analyses of potential liability, including that the amount of

overtime damages would be calculated at a regular rate by dividing weekly

compensation by all hours worked each week, and then paid at half-time at that

regular rate for hours worked over forty in a work week (“half-time”) and that this


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Court could decline to award liquidated damages. Plaintiffs disagreed with

Defendant’s positions and calculations.

As set forth above, the Parties engaged in extensive and continued

settlement negotiations before ultimately reaching an agreement to settle the case.

During the mediation the parties exchanged additional information regarding the

number of overtime hours worked in Go-Live weeks after the position was

reclassified from exempt to non-exempt. (Desai Decl. ¶ 7.) Although the parties

disagree as to the proper weight to be given to that evidence, the data suggested

that the overtime hours worked were greater than the amount advocated by

Defendant and significantly less than the amount estimated by Plaintiffs. (Id.) The

parties weighed this information in their settlement negotiations. Thus, the

settlement in this case is the ultimate result of arms-length negotiations by Parties

who were well represented by counsel and made aware of all potential outcomes.

According to Plaintiffs’ calculations, the 71 Plaintiffs would be entitled to a

maximum gross amount of $1,383,183.08 for overtime back pay (exclusive of fees

and costs, and including liquidated damages) if they succeeded in overcoming

Defendant’s exemption defense, obtaining a damages award calculated at the time

and a half weekly pay divided by forty hours per week rather than at half-time, and

obtaining a jury verdict at trial that credited them with every hour claimed. (Desai


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Decl. ¶ 8.) According to Defendant’s calculations, the 71 Plaintiffs would be

entitled to approximately $12,928.74 for overtime back pay (exclusive of fees and

costs and liquidated damages) if Plaintiffs succeeded in overcoming Defendant’s

exemption defense, failed to recover liquidated damages and were awarded

damages at the half-time calculation for two hours of overtime in the weeks in

which they performed “Go-Lives.”

Under the terms of settlement (if approved), the 71 Plaintiffs would share,

for their overtime claims, the total gross amount of $308,130 net of all attorney’s

fees and costs. The proposed allocation of this settlement amount is included in

Exhibit A to the Settlement Agreement.

Plaintiffs calculated the amount of each Plaintiff’s distribution from the

$308,130 using the start and end-dates of each Plaintiff’s employment in the

relevant position during the relevant period, as well as each Plaintiff’s salary and

bonus information, the dates each Plaintiff was assigned on a “Go-Live,” and data

regarding each Plaintiff’s paid time off (PTO). (Desai Decl. ¶ 9.) The eligible time-

frame for this case is February 2015 (when the Senior Client Implementation

Support Analyst position began) to September 4, 2016 (when the position was

reclassified as non-exempt). These dates, along with each person’s dates of

employment, were used to define each Plaintiff’s eligible workweeks. (Id. at ¶ 10.)


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Each eligible workweek fell into one of three categories: training, call center, or

Go-Live; this classification dictated weekly hours worked. (Id.)

Training weeks were defined as either the first fifteen weeks worked in an

eligible position (unless otherwise specified by the Plaintiff) or all weeks between

the eligible position start date and the first Go-Live record, whichever stint was

shorter. (Desai Decl. ¶ 11.) Go-Live weeks included all weeks containing a Go-

Live record. Call center weeks included all eligible weeks not identified as training

or Go-Live. (Id.) Regardless of classification, recorded PTO hours were deducted

from estimated hours, yielding weekly hours worked. (Id.) The allocation also

includes a $500 floor, which affects three Plaintiffs, and $1,500 named Plaintiff

enhancement for Plaintiff Davis, discussed infra.

Using these parameters, the pro-rata allocation of $308,130 equates to

approximately 7.5 weekly overtime hours for Go-Live weeks, 2.5 weekly overtime

hours for call center weeks, and 0.5 weekly overtime hours for training weeks,

with a 50% chance of success on the disputed calculation method (0.5 times the

regular rate versus 1.5 times the regular rate), and with full liquidated damages.

(Desai Decl. ¶ 12.) If one assumes no liquidated damages, the settlement provides

approximately 15 weekly overtime hours during Go-Live weeks, 5 weekly

overtime hours during call center weeks, and 1 weekly overtime hour during


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training weeks, with the same 50% chance of success on the calculation method.

(Id.) Given that these numbers assume 100% success on the merits of Defendant’s

exemption defense, the overtime hours compensated under this settlement provide

substantial value for Plaintiffs. Defendant denies any liability under the FLSA and

denies that Plaintiffs are entitled to any recovery in this lawsuit; however, without

admitting liability and solely for the purposes of avoiding ongoing costs of

litigation, Defendant has agreed to make the settlement payments reflected in the

Agreement.

In exchange for these settlement payments, Plaintiffs will provide Defendant

with a tailored release covering overtime claims which arose during the time

period at issue in the case. (See Exhibit 1, Settlement Agreement ¶ 3.) All of the

above, combined with the fact that this case was mediated with an experienced

private mediator, establish that this settlement was reached by arms-length

negotiations without collusion by or on behalf of any parties.

2. The Complexity, Expense, and Likely Duration of the Litigation.

The Agreement allows Plaintiffs to take a substantial recovery now, without

suffering the delay and risk of litigating the claims. In this case, further litigation

including discovery disputes on issues involving attorney-client and work product

privilege and anticipated proceedings on motions to compel, depositions,


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anticipated cross-motions for summary judgment, and appeals could drag on for

years and require the expenditure of a tremendous amount of resources. Fees and

costs in this case would only have continued to increase for both sides if the case

had not settled.

3. The Stage of the Proceedings and the Amount of Discovery Completed.

This factor considers whether the parties have had the opportunity to fully

evaluate the claims. Carnegie v. Mutual Sav. Life Ins. Co., No. Civ. A. CV-

99S3292NE, 2004 WL 3715446, *22 (N.D. Ala. 2004); Meyer v. Citizens and

Southern Nat. Bank, 677 F. Supp. 1196, 1209-10 (M.D. Ga. 1988) citing Holmes v.

Continental Can Company, 706 F.2d 1144, 1149 (11th Cir. 1983).

In this case, the Parties exchanged significant discovery in anticipation of

mediation including Defendant’s production of all of the Plaintiffs’ pay records,

records of Go-Lives, and records of PTO. Plaintiffs contend that Defendant may

have been required to produce additional documents responsive to Plaintiffs’

requests had the case not settled, including significant e-discovery. To prepare for

mediation, Plaintiffs’ counsel interviewed witnesses, (Desai Decl. ¶ 13), as did

Defense Counsel. As a result of these efforts, the Parties have had sufficient

information upon which to assess the potential merit of each claim, ultimate

liability, and the apparent risk of proceeding to trial.


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4. The Probability of Plaintiffs’ Success on the Merits.

Defendant has asserted throughout this litigation that Plaintiffs were not

entitled to overtime compensation because they were exempt from the overtime

requirements of the FLSA. Additionally, disputes exist as to the amount of

overtime worked and the calculation of overtime damages. See Sigida v. Munroe

Foods 2 LLC, No. 1:14-CV-3968-RWS, 2016 WL 7239952, at *8 (N.D. Ga. Dec.

15, 2016) (finding, based on the facts presented, that the half-time method applied

to hours under 45 in a week and time-and-a-half method applied to hours over 45

in a week). Thus, Defendant disputes whether Plaintiffs would be entitled to any

overtime compensation at all, much less in the amounts claimed. Plaintiffs

maintain that Defendant misclassified them as exempt in light of their job duties

and that they were entitled to an additional payment for overtime hours worked.

The Parties therefore disagree on the likelihood of Plaintiffs’ success on the merits.

5. The Range of Possible Recovery.

“[T]here is a range of reasonableness with respect to a settlement—a range

which recognizes the uncertainties of law and fact in any particular case and the

concomitant risks and costs necessarily inherent in taking any litigation to

completion.” Newman v. Stein, 464 F.2d 689, 693 (2d Cir. 1972).


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As summarized above, the Parties dispute the amount of damages to which

Plaintiffs would be entitled even if Defendant did not prevail on its exemption

defense. First, even if Plaintiffs defeated the exemption defense, Defendant

contends that a non-exempt employee who is paid a salary for all hours worked has

already been paid his or her “regular rate” for all such hours and is only owed half-

time for any hours worked in excess of forty in the workweek. Under Defendant’s

calculation methodology, Defendant’s overtime liability would then be only the

additional half-time payment at the hourly rate determined by dividing Plaintiffs’

weekly salary by the number of hours worked that week. Plaintiffs contend that

Defendant’s half-time payment method of calculation does not apply because

Plaintiffs’ salary was not intended to compensate them for all hours worked. See

Sigida, 2016 WL 7239952, at *8. Defendant disagrees with this position.

Next, regarding Plaintiffs’ claim for liquidated damages in an amount

equivalent to overtime damages under Section 216(b) of the FLSA, Defendant

contends that this Court should deny or reduce liquidated damages based on the

“good faith” defense, relying on the job duties of the Senior Client Implementation

Support Analyst position to satisfy the requirements of the FLSA’s Administrative

Exemption. Plaintiffs contend that Defendant cannot prove its good faith defense

and avoid the imposition of liquidated damages under the FLSA, and that


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liquidated damages may be imposed even if Defendant shows good faith. See

Joiner v. City of Macon, 814 F.2d 1537, 1539 (11th Cir. 1987).

As stated above, the range of Plaintiffs’ possible net recovery is zero if

Defendant proved its exemption defense; approximately $12,928.74 in overtime

back pay according to Defendant’s calculations for two hours of overtime in Go-

live weeks only, and $1,383,183.08 in overtime back pay according to Plaintiffs’

calculations. Again, the settlement payments to Plaintiffs of $308,130 net of all

fees and costs constitutes recovery of 15 hours of overtime for Go-Live Weeks, 5

hours of overtime for call center weeks, and an hour of overtime for training

weeks, with a 50% chance of success on the damage calculation method. Or,

viewed another way, it provides recovery of half those overtime amounts plus

liquidated damages. Either way, the settlement provides a reasonable compromise

of individually calculated overtime damages.

6. Counsels’ Opinions.

Based on what the Parties learned through informal discovery, from witness

interviews, and from extensive research and investigation, the Parties negotiated a

fair settlement for the Plaintiffs. By settling, Plaintiffs avoid the risks of not

establishing liability at trial, avoid substantial and indefinite delay in payment

involved in having to wait for trial and any appeals, and avoid potential adverse


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determinations on the damages issues outlined above. Counsel for both Parties

therefore recommend acceptance of this settlement and represent herein that the

settlement is fair, beneficial, and equitably allocated among the settling Plaintiffs.

II. APPROVAL OF PAYMENT OF ATTORNEYS’ FEES3

The Agreement provides that Defendant shall pay Plaintiffs’ attorneys’ fees

and costs in the amount of $90,000. (See Exh. 1 ¶ 1(a)(2).) For purposes of this

motion, the $90,000 is allocated as $7,518.47 in costs and $82,481.53 in fees. This

amount is less than Plaintiffs’ lodestar and is less than the 33% to which Plaintiffs

would be entitled under their fee agreements. (Desai Decl. ¶ 14.) The Court should

therefore approve this payment of attorneys’ fees and costs.

The Fair Labor Standards Act (“FLSA”) requires that the Court “shall, in

addition to any judgment awarded to the plaintiff or plaintiff, allow a reasonable

attorneys’ fee to be paid by the defendant, and costs of the action.” 29 U.S.C. §

216(b). Fee awards are mandatory for prevailing plaintiffs in FLSA cases.

Kreager v. Solomon & Flanagan, P.A., 775 F.2d 1541, 1542 (11th Cir. 1985). The

Supreme Court has held that a party is a “prevailing party” for purposes of an

attorneys’ fee award if the party “succeeded on any significant claim affording it

some of the relief sought.” Texas State Teachers’ Ass’n v. Garland Indep. Sch.

3 While Defendant does not oppose Plaintiffs’ request for approval of payment of


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Dist., 489 U.S. 782, 791 (1989). In the instant action, Plaintiffs stand to recover a

favorable settlement payment of a substantial number of overtime hours. Thus,

Plaintiffs are entitled to payment of their attorneys’ fees and costs in this action by

Defendant in the amount stated in the Agreement.

The total requested attorneys’ fees is $82,481.53. (Desai Decl. ¶ 14.) Adding

the $7,518.47 in requested costs and $82,481.53 in fees to the $308,130 to be paid

to Plaintiffs, the total settlement amount is $398,130. The requested fees therefore

represent less than 21% of the total settlement amount.

Plaintiffs’ Counsel took this case on a contingency basis, which provides for

the payment of attorneys’ fees in the amount of one-third of any settlement.

(Desai Decl. ¶ 15.) Because of this contingency fee arrangement, Plaintiffs’

Counsel has not received payment for any of their time litigating the case, nor have

they received reimbursement for their out-of-pocket costs expended. (Id.)

Regardless, Plaintiffs’ Counsel undertook the financial risk of potentially

unsuccessful litigation, in an effort to recover overtime pay for workers they

believe were misclassified as exempt.

Courts routinely approve similar contingency agreements in the amount of

one-third, and it would be fair and reasonable to do so here as well. See e.g.,

attorney’s fees, Defendant does not join in the request.


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Wreyford v. Citizens for Transportation Mobility, Inc., No. 1:12-CV-2524-JFK,

2014 WL 11860700, at *1 (N.D. Ga. Oct. 16, 2014); (approving a one-third fee);

Wolff v. Cash 4 Titles, 2012 WL 5290155, at *4 (S.D. Fla. Sept. 26, 2012) (“One-

third of the recovery is considered standard in a contingency fee agreement.”);

Whittington v. Taco Bell of Am., Inc., No. 10-CV-01884-KMT-MEH, 2013 WL

6022972, at *6 (D. Colo. Nov. 13, 2013) (adopting the percentage-of-the-common

fund approach in an FLSA settlement and finding that the agreed upon 39%

covering fees and costs was reasonable as a matter of law); Burkholder v. City

of Fort Wayne, 750 F. Supp. 2d 990, 997 (N.D. Ind. 2010) (finding 33.3% of the

total settlement amount is reasonable in an FLSA action); Yarrington v. Solvay

Pharm., Inc., 697 F. Supp. 2d 1057, 1064–65 (D. Minn. 2010) (collecting cases

and granting award of 33%). But Plaintiffs’ fee request does not constitute one-

third of the settlement fund; instead, Plaintiffs request less than 21% of the total

settlement payment. Viewed under a common fund analysis, therefore, Plaintiffs’

fee request is eminently reasonable.

Plaintiffs are aware, however, of cases in this circuit scrutinizing FLSA

settlements wherein attorneys’ fees and payments to Plaintiffs were negotiated

“simultaneously.” See, e.g., Martin v. Huddle House, Inc., No. 2:10-CV-0082-

WCO, 2011 WL 611625, at *2 (N.D. Ga. Feb. 11, 2011). Plaintiffs note that


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Martin and the cases cited therein did not involve “common fund” collective action

settlements, but rather simultaneous negotiation of payments to individual

plaintiffs and separate payments to the attorneys. Martin involved a settlement

which netted the plaintiff’s counsel $8,500 and only provided $6,500 in payments

to the plaintiffs. Likewise, cases citing Martin for the suggestion that fees should

be negotiated separately from wages do not involve common fund settlements of

collective actions. See, e.g., Marshall v. Good Vocations, Inc., No. CV 111-200,

2013 WL 394389, at *1 (S.D. Ga. Jan. 31, 2013); Barnes v. Ferrell Elec., Inc.,

2013 WL 5651903, at *2 (S.D. Ga. Oct. 16, 2013). Accordingly, Plaintiffs

respectfully submit that it is entirely proper to settle an FLSA collective action for

a common fund.

Nevertheless, the parties conducted the mediation of this case in two phases;

first the parties negotiated a payment to Plaintiffs of $308,130. (Desai Decl. ¶ 16.)

Second, and only after that settlement amount was finalized, the parties negotiated

the payment of fees and costs. (Id.) That separate and distinct negotiation resulted

in Defendant’s agreement to pay $90,000 total in fees and costs. (Id.) Under

Martin, there is “no need to independently scrutinize the reasonableness of

attorney’s fees provided in a FLSA settlement if and only if ‘the plaintiff's

attorneys’ fee was agreed upon separately and without regard to the amount paid to


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the plaintiff.” Martin, 2011 WL 611625, at *2 (quoting Bonetti v. Embarq Mgmt.

Co., 715 F. Supp. 2d 1222, 1228 (M.D. Fla. 2009)). The Court should therefore

approve Plaintiffs’ Counsel’s fees and costs as submitted and requested, since they

were negotiated separately and without regard to the amount paid to Plaintiffs.

In the event the Court is inclined to review Plaintiffs’ fees and costs,

however, Plaintiffs provide information sufficient for it to do so. Plaintiffs’ costs

are outlined in Exhibit 3. The majority of the costs relate to mediation of the case,

which resulted in this favorable settlement. (See Ex. 3, Pls.’ Costs.) The payments

noted to local counsel invoices are for costs only, not for local counsel’s fees.

(Desai Decl. ¶ 17.) Accordingly, the Court should approve the requested $7,518.47

in costs.

Plaintiffs have expended approximately $118,502 in attorneys’ fees in the

prosecution and resolution of this action, based on approximately 413 attorney and

staff hours. (See Desai Decl. ¶ 18.) Thus, Plaintiffs’ Counsel’s lodestar amount

greatly exceeds the fees actually sought through this settlement. The Court should

therefore approve the $82,481.53 in requested fees.

Plaintiffs’ Counsel’s experience and firm reputation supports this lodestar

calculation. Nichols Kaster, PLLP is renowned for its national wage and hour

class and collective action practice. (See Ex. 4, Firm Resume.) In fact, the firm


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was set for two FLSA trials in this district in February of this year. See Keira

Vaughan, et al v. Paradise Entertainment Group, Inc. d/b/a Magic City, et al.,

N.D. Ga. Case No. 1:14-cv-00914-SCJ; Clinton Henderson, et al. v. 1400

Northside Drive, Inc., d/b/a Swinging Richards, et al., N.D. Ga. Case No. 1:13-cv-

03767-TWT. The firm has received several awards and recognitions for its

nationwide class and collective action practice. (See Ex. 4, Firm Resume.)

Matthew C. Helland, who was the primary partner on the file, leads the

firm’s San Francisco office. (Desai Decl. ¶ 19; see also Ex. 5, Helland Bio.)

Reena Desai, who became a partner at Nichols Kaster on January 1, 2017, has

extensive experience litigating wage and hour cases like this one. (Desai Decl. ¶

19; see also Ex. 6, Desai Bio.) Plaintiffs’ Counsel’s significant experience helped

them push this case towards early resolution.

But that is not to say that this case settled without any work. To that end, a

few points about Plaintiffs’ time bear mention. First, Adron Mason billed

approximately 190 hours on the file at a $175 per hour staff rate. (See Desai Decl.

¶ 20.) Mr. Mason is a class action clerk at Nichols Kaster, and was primarily

responsible for client contact on the file. Of his 190 hours, approximately 115

were spent communicating with the firm’s 71 clients on the case, including

conducting detailed interviews to prepare for the mediation. (Id.) The information


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Plaintiffs’ Counsel gained through these client communications was invaluable

during mediation. (Id.) If Plaintiffs’ Counsel had assigned an attorney to this task,

the resulting fees would have been much higher.

Likewise, Alexander Wise billed 19.5 hours at $175 per hour staff rate. Mr.

Wise has worked at Nichols Kaster for 10 years as a litigation damages clerk.

(Desai Decl. ¶ 21.) He has extensive experience analyzing damages and has

testified at arbitration and a trial in wage and hour matters. (Id.) Mr. Wise’s

damages analysis allowed Plaintiffs to assign percentage likelihoods of success on

each damages variable during mediation, and to promptly recalculate damages

based on different assumptions of overtime hours worked. (Id.) If Plaintiffs had

hired an expert to prepare their damages analysis the cost to the file would have

been far greater than Mr. Wise’s time.

Lastly, Plaintiffs note that the settlement agreement imposes substantial

post-approval work on Plaintiffs’ Counsel. Specifically, Plaintiffs’ Counsel is

responsible for mailing settlement notices to all 71 Plaintiffs, explaining the

settlement to Plaintiffs, counseling them regarding their rights in the settlement,

and securing acceptances from Plaintiffs during the tight 45-day notice time frame.

(See Ex. 1.) Accordingly, if the Court is inclined to scrutinize Plaintiffs’ fees for

the purpose of reducing the claimed fee amount, Plaintiffs respectfully request that


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the Court reserve such analysis for after settlement administration, at which point

Plaintiffs’ counsel could submit their contemporaneous time entries with additional

briefing.

C. Service Payments Should Be Approved.

Under the terms of the Settlement Agreement, the parties have allocated and

are requesting approval for a service payment for the lead named Plaintiff Davis in

the amount of $1,500. This is in recognition of her time and agreement to pursue

this case on behalf of herself and others, and for the time and effort she spent

assisting Plaintiffs’ Counsel through meetings, calls and emails, mediation

discussions. (Desai Decl. ¶ 22.) Each opt-in Plaintiff benefited from Plaintiff

Davis’ important contributions to this case.

This service payment is fair and reasonable, was already included in the

allocation, and the parties respectfully request it be approved. See, e.g., Bozak v.

FedEx Ground Package Sys., Inc., 2014 WL 3778211, at *4–5 (D. Conn. July 31,

2014 (approving $10,000 incentive award, and identifying cases awarding similar or

higher amounts); Whittington, 2013 WL 6022972, at *6 (approving $7,500.00

service award); Torres v. Gristede’s Op. Corp., 2010 WL 5507892, at *7

(S.D.N.Y. Dec. 21, 2010) (awarding $15,000 service award); Wineland v. Casey’s

Gen. Stores, Inc., 267 F.R.D. 669, 677–78 (S.D. Iowa 2009) (approving


24

$10,000 service payment); Su v. Elec. Arts, Inc., 2006 WL 4792780, *5 (M.D.

Fla. Aug. 29, 2006) (approving $10,000 service payment); see also Frank v.

Eastman Kodak Co., 228 F.R.D. 174, 187 (W.D.N.Y. 2005) (recognizing that

service payments are “particularly appropriate in the employment context” when

the named plaintiff is a “former or current employee of the defendant . . . by

lending his name to the litigation, he has, for the benefit of the class as a whole,

undertaken the risk of adverse actions by the employer or co-workers”).

CONCLUSION

For the reasons set forth above and for good cause shown, the Parties

respectfully request that this Court approval the Agreement (attached as Exhibit 1)

and enter the proposed Order attached as Exhibit 2.

Respectfully submitted this 27th day of April, 2017.

/s/ Reena Desai /s/ Eric Magnus NICHOLS KASTER, PLLP JACKSON LEWIS P.C. MN Bar No. 0388311 Georgia Bar No.: 801405 4600 IDS Center, 80 South 8th Street 1155 Peachtree Street, NE Minneapolis, MN 55402 Suite 1000 Telephone: (612) 256-3200 Atlanta, Georgia 30309 Fax: (612) 215-6870 T: (404) 525-8200 [email protected] F: (404) 525-1173 [email protected] MAYS & KERR, LLC John L. Mays Attorney for Defendant Georgia Bar No. 986574 235 Peachtree St. NE


25

202 North Tower Atlanta, GA 30303 Direct/Fax: (404) 855-0820 [email protected] NICHOLS KASTER, LLP Matthew C. Helland, CA Bar No. 250451 One Embarcadero Center, Suite 720 San Francisco, CA 94111 Tel: (415) 277-7235 Fax: (415) 277-7238 [email protected] Attorneys for Plaintiff and the Conditionally Certified Class


26

CERTIFICATE OF COMPLIANCE

The undersigned counsel certifies that this document was prepared in

compliance with LR 7.1, NDGa. This document was prepared in Times New

Roman 14-point font.

/s/ Reena I. Desai Counsel for Plaintiffs


27

CERTIFICATE OF SERVICE

I hereby certify that on April 27, 2017, I electronically filed the foregoing

Joint Motion for Approval of Settlement Agreement and Release and

supporting documents with the Clerk of Court using the CM/ECF system which

will automatically send e-mail notification of all attorneys of record

/s/ Reena I. Desai




DECLARATION OF REENA I. DESAI

I, Reena I. Desai, hereby declare:

1. I am counsel for plaintiffs in the above-captioned matter.

2. I make this Declaration in Support of the parties’ Joint Motion for Approval

of the Settlement Agreement and Release.

3. On March 8, 2017, the Parties attended private mediation with Ellen Malow

of Malow Mediation & Arbitration, Inc. which successfully let to an agreement to

resolve the matter by settling all claims in the litigation, including all claims

encompassed by Plaintiff’s Complaint.

4. In preparation for mediation, the Parties exchanged their respective

valuations of potential damages if Plaintiffs were to succeed in proving FLSA

Case 1:16-cv-03592-SCJ Document 53-1 Filed 04/27/17 Page 1 of 8

2

liability in this case. To assist with calculating potential damages in the case,

Defendant produced Plaintiffs’ pay records, PTO records and reports of “Go-

Lives” or client visits conducted by the Plaintiffs during their employment. The

“Go-Lives” records were important because Plaintiffs alleged they worked

significantly more overtime during their Go-Live weeks than they did during their

initial training weeks or in weeks they spent in call center roles in athenahealth’s

Atlanta office. Counsel for both Plaintiffs and Defendant conducted independent

calculations of potential liabilities based on the records that Defendant produced.

5. Plaintiff computed damages calculations based on each Plaintiff’s alleged

FLSA damages, calculated by dividing weekly salary by 40 hours to determine

regular rate, then calculating overtime at time and a half that regular rate.

Plaintiffs’ counsel also took in to account the bonuses which Defendant paid to

Plaintiffs by dividing total hours worked and multiplying by 0.5 the resulting

regular rate to add to the overtime damages based on salary earnings. Plaintiff

provided Defendant with these computed damages along with Plaintiff’s analysis

of the potential maximum liability if all disputed issues were resolved in Plaintiffs’

favor, including liquidated damages.

6. Plaintiffs’ counsel’s analysis of potential maximum liability for Plaintiffs

was based on Plaintiffs’ overtime estimates, which averaged 20 overtime hours


3

during Go-Live weeks, 8 overtime hours during call center weeks, and 2.5

overtime hours during training weeks. The analysis also assumed rejection of

Defendant’s defense that the Plaintiffs were exempt from the overtime

requirements of the FLSA; a favorable calculation of Defendant’s overtime

liability in the amount of time and one-half Plaintiffs’ regular rate (salary divided

by forty hours) for all hours worked over forty in a work week; and doubling the

overtime back pay award for full liquidated damages.

7. The Parties engaged in extensive and continued settlement negotiations

before ultimately reaching an agreement to settle the case. During the mediation

the parties exchanged additional information regarding the number of overtime

hours worked in Go-Live weeks after the position was reclassified from exempt to

non-exempt. Although the parties disagree as to the proper weight to be given to

that evidence, the data suggested that the overtime hours worked were greater than

the amount advocated by Defendant and significantly less than the amount

estimated by Plaintiffs.

8. According to Plaintiffs’ calculations and analysis, the 71 Plaintiffs would be

entitled to a maximum gross amount of $1,383,183.08 for overtime back pay

(exclusive of fees and costs, and including liquidated damages) if they succeeded

in overcoming Defendant’s exemption defense, obtaining a damages award


4

calculated at the time and a half weekly pay divided by forty hours per week rather

than at half-time, and obtaining a jury verdict at trial that credited them with every

hour claimed.

9. Plaintiffs calculated the amount of each Plaintiff’s distribution from the

$308,130 using the start and end-dates of each Plaintiff’s employment in the

relevant position during the relevant period, as well as each Plaintiff’s salary and

bonus information, the dates each Plaintiff was assigned on a “Go-Live,” and data

regarding each Plaintiff’s paid time off (PTO).

10. The eligible time-frame for this case is February 2015 (when the Senior

Client Implementation Support Analyst position began) to September 4, 2016

(when the position was reclassified as non-exempt). These dates, along with each

person’s dates of employment, were used to define each Plaintiff’s eligible

workweeks. Each eligible workweek fell into one of three categories: training, call

center, or Go-Live; this classification dictated weekly hours worked.

11. Training weeks were defined as either the first fifteen weeks worked in an

eligible position (unless otherwise specified by the Plaintiff) or all weeks between

the eligible position start date and the first Go-Live record, whichever stint was

shorter. Go-Live weeks included all weeks containing a Go-Live record, and. Call

center weeks included all eligible weeks not identified as training or Go-Live.


5

Regardless of classification, recorded PTO hours were deducted from estimated

hours, yielding weekly hours worked.

12. Using the parameters of a $500 floor affecting three Plaintiffs, and a $1,500

named Plaintiff enhancement, the pro-rata allocation of $308,130 equates to

approximately 7.5 weekly overtime hours for Go-Live weeks, 2.5 weekly overtime

hours for call center weeks, and 0.5 weekly overtime hours for training weeks,

with a 50% chance of success on the disputed calculation method (0.5 times the

regular rate versus 1.5 times the regular rate), and with full liquidated damages. If

one assumes no liquidated damages, the settlement provides approximately 15

weekly overtime hours during Go-Live weeks, 5 weekly overtime hours during call

center weeks, and 1 weekly overtime hour during training weeks, with the same

50% chance of success on the calculation method.

13. In Plaintiffs’ initial discovery, counsel interviewed witnesses to prepare for

mediation, including the majority of opt-in Plaintiffs in the case.

14. The Settlement Agreements provides that Defendant shall pay Plaintiffs’

attorneys’ fees and costs in the amount of $90,000 which is to be allocated as

$7,518.47 in costs and $82,481.53 in fees. This amount is less than Plaintiffs’

counsel’s lodestar and is less than the 33% to which Plaintiffs’ counsel would be

entitled under their fee agreements.


6

15. Plaintiffs’ Counsel took this case on a contingency basis, which provides for

the payment of attorneys’ fees in the amount of one-third of any settlement.

Because of this contingency fee arrangement, Plaintiffs’ Counsel has not received

payment for any of their time litigating the case, nor have they received

reimbursement for their out-of-pocket costs expended.

16. The parties conducted the mediation of this case in two phases; first the

parties negotiated a payment to Plaintiffs of $308,130. After the payment to

Plaintiffs was finalized, the parties separately negotiated the payment of fees and

costs to Plaintiff’s counsel.

17. Regarding costs in this matter, the majority of the costs relate to mediation

of the case. Another portion of costs are payments noted to local counsel which

are for costs only, not for local counsel’s fees.

18. Regarding fees in this matter, Plaintiffs have expended approximately

$118,502 in attorneys’ fees in the prosecution of this action based on

approximately 413 attorney and staff hours.

19. The attorneys from Nichols Kaster, PLLP who worked on this matter have

been Matthew C. Helland, who is the primary partner on the file and leads the

firms San Francisco office, along with myself, who became a partner at Nichols


7

Kaster on January 1, 2017. Both of us have extensive experience litigating wage

and hour cases similar to this case.

20. Other staff from Nichols Kaster, PLLP also worked on this case. Class

action clerk Adron Mason was primarily responsible for client contact on this

file. Mr. Mason bills at $175 per hour at the firm’s staff rate and of the

approximately 190 hours spent on this file, approximately 115 were spent

communicating with the firm’s 71 clients in this case including conducting

detailed interviews to prepare for the mediation.

21. Nichols Kaster, PLLP staff member Alexander Wise, the firm’s litigation

damages clerk, has extensive experience analyzing damages, has testified

regarding the damages at arbitration and trial in wage and hour matters, and has

worked for the firm for nearly 10 years in this roll. Mr. Wise billed 19.5 hours at

the $175 per hour staff rate. Mr. Wise’s damages analysis allowed Plaintiffs to

assign percentage likelihoods of success on each damages variable during

mediation, and to promptly recalculate damages based on different assumptions of

overtime hours worked.

22. Under the terms of the Settlement Agreement in this case, the parties

allocated a service payment for lead named Plaintiff Davis in the amount of

$1,500. This service payment is in recognition of her time and agreement to


8

pursue this case on behalf of herself and others, and for the time and effort she

spent assisting Plaintiffs’ Counsel through meetings, calls and emails, mediation

discussions.

23. Attached to this declaration, I submit a copy of the following documents:

Exhibit 1: Settlement Agreement and Release with Redacted Exhibit A (proposed settlement allocations) and Exhibit B (proposed Notice of Settlement);

Exhibit 2: Proposed Order approving Settlement Agreement and Release;

Exhibit 3: Plaintiffs’ categorized costs in this case;

Exhibit 4: Nichols Kaster, PLLP Firm Resume;

Exhibit 5: Bio of Matthew C. Helland; and

Exhibit 6: Bio of Reena I. Desai.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the

laws of the United States of America that the foregoing is true and correct.

Executed this 27th day of April, 2017

/s/Reena I. Desai Reena I. Desai


EXHIBIT 1









EXHIBIT A


Junction_ID First_Name Last_Name Pro Rata Allocation Service Payment Total Allocation

6051468 $2,166.59 $2,166.59

6055200 $2,054.03 $2,054.03

6055149 $3,351.84 $3,351.84

6055159 $5,603.69 $5,603.69

6055157 $8,380.43 $8,380.43

6055186 $2,713.92 $2,713.92

6055132 $7,964.94 $7,964.94

6021197 $6,912.59 $6,912.59

6055067 $2,081.41 $2,081.41

6021193 $3,230.37 $3,230.37

6055168 $7,751.90 $7,751.90

6055151 $5,070.52 $5,070.52

6055201 $1,930.10 $1,930.10

6055195 $1,383.47 $1,383.47

6055177 $683.45 $683.45

6055045 $6,237.36 $6,237.36

6045044 $4,908.50 $1,500.00 $6,408.50

6052800 $3,008.12 $3,008.12

6055031 $5,700.98 $5,700.98

6055188 $4,459.69 $4,459.69

6051431 $9,952.56 $9,952.56

6055158 $5,269.27 $5,269.27

6055065 $2,061.62 $2,061.62

6055175 $1,027.39 $1,027.39

6055123 $6,991.87 $6,991.87

6055136 $2,441.30 $2,441.30

6055196 $1,780.81 $1,780.81

6045043 $5,581.83 $5,581.83

6055182 $3,074.96 $3,074.96

6055148 $3,813.27 $3,813.27

6051415 $4,077.83 $4,077.83

6055041 $5,560.48 $5,560.48

6021195 $4,623.47 $4,623.47

6055125 $5,054.98 $5,054.98

6055162 $2,421.92 $2,421.92

6055144 $6,615.47 $6,615.47

6055167 $2,818.29 $2,818.29

6055191 $3,380.99 $3,380.99

6055169 $2,704.79 $2,704.79

6055205 $500.00 $500.00

6021204 $7,415.69 $7,415.69

6055139 $5,287.41 $5,287.41

5994403 $4,101.48 $4,101.48

6055166 $2,955.70 $2,955.70

6055163 $8,001.28 $8,001.28

6021198 $500.00 $500.00


Junction_ID First_Name Last_Name Pro Rata Allocation Service Payment Total Allocation

6055146 $7,362.53 $7,362.53

6055010 $5,545.33 $5,545.33

6051425 $6,174.85 $6,174.85

6021200 $3,573.84 $3,573.84

6051454 $4,621.32 $4,621.32

6021194 $9,186.86 $9,186.86

6055000 $4,125.12 $4,125.12

6055026 $5,860.73 $5,860.73

6055203 $500.00 $500.00

6055194 $500.00 $500.00

6055134 $4,290.37 $4,290.37

6055178 $3,110.06 $3,110.06

6054978 $10,427.42 $10,427.42

6055180 $574.68 $574.68

6055143 $4,624.33 $4,624.33

5994368 $3,354.18 $3,354.18

6055145 $4,044.93 $4,044.93

6055160 $4,052.58 $4,052.58

6055179 $4,410.83 $4,410.83

6055002 $8,866.71 $8,866.71

6055172 $1,001.85 $1,001.85

6055164 $2,057.23 $2,057.23

6055156 $3,958.31 $3,958.31

6055155 $1,785.11 $1,785.11

6055181 $7,012.27 $7,012.27


EXHIBIT B




PLEASE READ THIS NOTICE CAREFULLY YOUR LEGAL RIGHTS WILL BE AFFECTED

______________________________________________________________________________

NOTICE OF SETTLEMENT FOR [INSERT NAME]

IN THE APPROXIMATE, PRE-TAX AMOUNT OF [INSERT AMOUNT] ______________________________________________________________________________ You are receiving this notice from Plaintiffs’ counsel because you signed a “Plaintiff Consent Form” to join this lawsuit, Davis v. Athenahealth, Inc., in the United States District Court for the Northern District of Georgia, as an opt-in Plaintiff and have agreed to have Plaintiffs’ counsel, Nichols Kaster, PLLP, represent you in the case. The parties reached an agreement to settle this lawsuit, which has been approved by the court. This Notice provides you with information about the settlement and instructions for recovering your share.

TO OBTAIN YOUR SHARE OF THE SETTLEMENT, YOU MUST COMPLETE THE ENCLOSED CLAIM FORM AND RETURN IT SO IT IS POST MARKED BY [45 days from mailing]. A postage-paid envelope is provided with this Notice for your convenience. If you return the Claim Form on or before the deadline and the Court approves the settlement, athenahealth will issue you a settlement payment in the approximate pre-taxed amount indicated above and in the manner outlined in this Notice. If you do not return the Claim Form, you will not receive your settlement share.

I. DESCRIPTION OF THE LAWSUIT

This lawsuit was filed on September 26, 2016, under the Fair Labor Standards Act (“FLSA”) on behalf of the named plaintiff and all other similarly situated individuals who were, or are, employed by Defendant athenahealth, Inc. as a Senior Client Implementation Support Analyst. Plaintiff alleged that Defendant denied her and all other Senior Client Implementation Support Analysts overtime compensation by misclassifying them as exempt from the overtime protections of the FLSA. Defendant denied these allegations.


The parties stipulated to conditional certification of the collective class and agreed to attend mediation after all eligible Senior Client Implementation Support Analysts were provided notice of the lawsuit and given the opportunity to join the case. The parties attended a mediation on March 8, 2017, with a private mediator and reached a tentative settlement at that time. If the parties had not reached an agreement, they would have engaged in extensive discovery (exchange of information) including plaintiff depositions, depositions of corporate witnesses and supervisors, and written discovery, and a possible trial.

II. SETTLEMENT DETAILS

The parties fully executed a comprehensive settlement agreement on ***. After the Court’s approval of the settlement and dismissal of the case, athenahealth will pay $308,130.00 to resolve all 71 Plaintiffs’ overtime claims. After a deduction of $1,500 for a service payment to named Plaintiff Davis for serving as a named plaintiff and her contributions to the case, as well as $2,000 reserved for a contingency fund (unused portions will be reallocated to Plaintiffs pro rata), the individual settlement amounts were allocated using a specific formula as set forth below. Each Plaintiff’s settlement amount was individually calculated and consists of a pro rata payment based upon the following factors: (1) each Plaintiff’s dates of employment as a senior client implementation support analyst; (2) each Plaintiff’s workweeks broken down by training weeks, Go Live weeks, and in office weeks; (3) a uniform number of overtime hours assigned to training, Go-Live and in-office weeks; and (4) each Plaintiff’s compensation for that time. A minimum of $500 was applied. Athenahealth and will pay an additional $90,000 in fees and costs to Plaintiffs’ counsel. Please note that attorneys’ fees and costs is being paid separately by athenahealth and the approximate settlement amount listed on the top of Page 1 will not be subject to deductions for attorneys’ fees or costs. Further, the parties agree not issue any press releases regarding this Settlement. The parties and their counsel may reasonably respond to inquiries from employees or the press regarding the Settlement.

III. TAXES

athenahealth will issue two settlement checks to each plaintiff participating in the settlement. The first check will constitute one-half of the settlement payment and will be reported as wages for tax purposes, and subject to the standard deductions. Athenahealth will issue an IRS Form W-2 for this portion of the settlement payment. The second check will cover the remaining half of the settlement payment and shall constitute payment for liquidated damages. This portion will be reported on an IRS Form 1099. Please note that your approximate settlement amount listed at the top of Page 1 is the pre-tax amount.

IV. TO ACCEPT YOUR SETTLEMENT AMOUNT

To receive your settlement payment, the enclosed Claim Form must be signed and postmarked by [45 days from mailing]. A postage-paid envelope is provided with this Notice. You may also fax it, or scan and email it to Plaintiffs’ counsel at the contact information below:

NICHOLS KASTER, PLLP (Attn. Reena Desai) 4600 IDS Center 80 South Eighth Street Minneapolis, MN 55402


Fax: (612) 215-6870 or (612) 338-4878 Email: [email protected]

V. TO REQUEST EXCLUSION FROM THE SETTLEMENT If you do not want to receive a payment from this settlement, and you want to retain your claims against athenahealth for overtime violations on your own, then you must take affirmative steps to exclude yourself. To be excluded from the settlement, you must notify Plaintiffs’ counsel (Nichols Kaster, PLLP) in writing, by e-mail or letter – called a “Request for Exclusion” at the address above or to [email protected]. The letter must be postmarked by [45 days from mailing]. The Request for Exclusion must include your name and address and must clearly state that you are requesting to be excluded from the Parties’ settlement in the lawsuit Davis v. athenahealth, Inc.

If you choose to exclude yourself from the settlement, you will not have a right to receive any money from the settlement of this lawsuit, but your claims will be dismissed by the Court without prejudice, your settlement share retained by athenahealth, and you will have 30 days from the date of dismissal to re-file your overtime claims, during which time your statute of limitations will be tolled. If you fail to re-file any claims during this 30-day period, you could be barred from bringing these claims against athenahealth in the future due to the passage of time.

VI. IF YOU DO NOTHING

If you do nothing in response to this Notice, you will not receive any proceeds under the Settlement. For any Plaintiff who does not respond to the settlement, his or her claims will be dismissed without prejudice, and his or her settlement allocation will retained by athenahealth.

VII. SCOPE OF RELEASE By accepting this settlement, you will release all overtime claims under the Fair Labor Standards Act and analogous state and local wage and hour laws against Defendant during the period that you held the position of Senior Client Implementation Support Analyst between February 1, 2015 and September 4, 2016. Please refer to the attached Settlement and Release Form for the full release language.

VIII. NO RETALIATION PERMITTED

The law prohibits retaliation against employees for exercising their rights under the FLSA. Therefore, Defendant is prohibited from firing you or retaliating against you because you choose to participate in this settlement.

IX. TIMING OF SETTLEMENT PAYMENTS athenahealth will issue the settlement payments and deliver them to Plaintiffs’ counsel within forty-five (45) calendar days after the United States District Court for the Northern District of Georgia approves the terms of this settlement, dismisses the lawsuit and the period in which individuals can file claims expires, whichever is latest.

X. QUESTIONS ABOUT THE SETTLEMENT Questions about the settlement, including requests to review the entire Settlement Agreement, should be


directed to Plaintiff’s Counsel, Nichols Kaster, PLLP, Reena I. Desai, 4600 IDS Center, 80 South 8th Street, Minneapolis, MN 55402; 612-256-3200; Email: [email protected].



ATLANTA DIVISION ) DEMETRIA DAVIS, individually and on ) behalf of all similarly situated individuals, ) Case No. 1:16-cv-03592-SCJ ) Plaintiff, ) CLAIM FORM ) vs. ) ) ATHENAHEALTH, INC., ) ) Defendant. ) )

As part of the proposed settlement in the above-captioned lawsuit, I understand that I will receive a payment of approximately [enter amount] pre-tax if I return this Claim Form by [45 days from mailing]. I wish to take part of the settlement. By signing and returning this Claim Form, I understand that I release and forever discharge (i) athenahealth; (ii) any current or former subsidiary, parent company, affiliated entity, related entity, successor, assign, or division of athenahealth; and (iii) any current or former officer, director, trustee, agent, employee, shareholder, representative, advisor, insurer, attorney, or employee benefit or welfare program or plan (including the administrators, trustee, fiduciaries, and insurers of such program or plan) of any entity referenced in or encompassed by subsection (i) or (ii) hereof (collectively, the “athenahealth Releasees”), from any and all claims that were or could have been brought by him or her in the Litigation based on the factual allegations in the Complaint, whether known or unknown, during the period that each Plaintiff held the position of Senior Client Implementation Support Analyst between February 1, 2015 and September 4, 2016, limited to overtime wage and hour claims under federal, state, or local law, including such claims under the Fair Labor Standards Act or any state wage laws, state wage payment and collection laws, state overtime statutes, state common law and unjust enrichment, or pursuant to express or implied wage contract claims for overtime hours worked. The parties agree that the dismissal with prejudice to be filed in the Litigation shall have no res judicata effect on any other claims not released by this Agreement. [I acknowledge that athenahealth reserves potential claims for unpaid credit card balances, return of a company laptop, and payback of a relocation stipend against me.] INCLUDE ONLY FOR 17 IDENTIFIED PLAINTIFFS Signature: _________________________________ Date: _____________ [NAME] [ADDRESS]

If your address is incorrect, please handwrite your correct address before submitting your Claim Form. To participate in the settlement, mail, fax, or scan and email this form by [45 days from mailing] to:

NICHOLS KASTER, PLLP (Attn. Reena I. Desai) 4600 IDS Center


80 South Eighth Street Minneapolis, MN 55402 Fax: (612) 215-6870 or (612) 338-4878 Email: [email protected]


EXHIBIT 2




ORDER

This case is before the Court for consideration of the Joint Motion for

Approval of Settlement Agreement and Release, (ECF No. 53). After reviewing

the record and the joint submission of the parties, the Court enters the following

Order.

Having reviewed the Settlement Agreement and Release (the “Agreement”)

(ECF No. 53-2 ] executed by the parties, the Court finds that the settlement is fair,

adequate, and reasonable. The Court finds that the Agreement was negotiated at

arm’s length by represented parties and is not the result of any collusion. The

Court has also reviewed the unopposed request for approval of attorney’s fees and

costs in the amount stated in the Agreement and finds that the attorneys’ fees and


2

costs provided in the Agreement are reasonable.

Therefore, the Joint Motion for Approval of Settlement Agreement and

Release is hereby GRANTED, the settlement of the parties is hereby

APPROVED, and the terms of the parties’ Settlement Agreement are hereby

incorporated into this Order.

Consistent with the terms of the Agreement, Defendant shall tender to

Plaintiffs all payments within forty-five (45) calendar days after this Court

approves the terms of this settlement, dismisses the lawsuit, and the period in

which individuals can file claims expires, whichever is latest. Fees and costs shall

be paid to Plaintiffs’ counsel as set forth in the Agreement. The parties shall file a

stipulation of dismissal after the deadline for the FLSA opt-in Plaintiffs to respond

to the Notice of Settlement.

SO ORDERED this ___ day of ____, 2017.

_____________________________ The Honorable Steve C. Jones Judge, United States District Court


EXHIBIT 3


Davis v. Athenahealth, Inc.

U.S. District Court, Northern District of Georgia

Case No. 1:16‐cv‐03592 SCJ

Category Total

Press Release $139.00

Postage/Courier/Service $430.19

Legal Research (Westlaw and PACER) $51.96

Filing Fees (complaint and pro hac vice motions) $700.00

Travel (for mediation) $2,422.32

Mediator fee (Plaintiffs' portion) $3,775.00

$7,518.47


EXHIBIT 4


1 | P a g e

FIRM OVERVIEW

With offices in Minneapolis and San Francisco, Nichols Kaster is a premier employment and consumer litigation firm. Nichols Kaster’s practice is solely dedicated to plaintiffs’ work, advocating for employees’ and consumers’ rights on both an individual and class action basis. The firm is composed of more than thirty experienced and talented attorneys dedicated to “fighting for the little guy,” and who have been recognized locally and nationally for their achievements.

The firm, throughout its thirty-plus years of practice, has developed a sterling reputation as a top employment and consumer plaintiffs’ firm. In September 2014, Nichols Kaster was named one of the top 50 Elite Trial Lawyers by The National Law Journal and Law.com, a list of firms “that are doing the most creative and substantial work on the plaintiffs side.” The Nat’l Law Journal, Introducing America’s Elite Trial Lawyers, Sept. 8, 2014. In February 2012, the firm was named to The National Law Journal’s 2011 Litigation Boutiques Hot List for its attorneys’ courtroom abilities. In the article spotlighting Nichols Kaster, the Journal wrote regarding the firm’s consumer practice: “The firm is credited with mounting the first challenge to a banking practice known as forced-place insurance” and that “American Banker magazine recently concluded that evidence to date in one of the Nichols Kaster suits against JPMorgan Chase ‘suggests serious trouble for the banks.’” Jason McLure, Nichols Kaster Takes the Employees’ Side, The Nat’l Law Journal, Litigation Boutiques Hot List, Feb. 13, 2012. Nichols Kaster has also been ranked as a Best Law Firm by U.S. News & World Report, as a top plaintiffs’ employment law firm by Law360, and by Minnesota Lawyer as one of Minnesota’s Top 100 Law Firms. In 2009, Nichols Kaster was ranked as one of the top ten busiest FLSA firms in the country by Litigation Almanac 360, which conducted a study of over 500,000 federal cases and received input from more than 200 law firms. Nichols Kaster was the only plaintiffs’ firm in the top ten. Nichols Kaster received a First Tier ranking on the 2014 Best Law Firms list in Minneapolis for Litigation-Labor and Employment by US News-Best Lawyers in November 2013. On Martindale Hubbell, the firm has a 5 out of 5 peer rating. In a recent CityPages article regarding one of the firm’s cases, Nichols Kaster was described as “one of the top employment firms in the country.” Olivia LaVecchia, The Perfect Victim: Exploitation and Threat of Deportation, CityPages, May 29, 2013.

Nichols Kaster, through the years, has and continues to, secure substantial settlements, win significant motions on important issues, and vigorously litigate complex class actions and challenging individual actions against some of the top defense firms nationwide. The firm has been recognized by judges for its successes and extensive experience. Further, Nichols Kaster has been appointed lead or co-counsel on hundreds of class and collective actions and frequently achieves class certification in both litigation and settlement contexts.


2 | P a g e

Nichols Kaster is led by its experienced and talented partners.1

Don H. Nichols has over 35 years of experience in the practice of law, has tried over 100 cases to verdict and has obtained over $50 million dollars for his class and collective clients. Don is highly respected by the legal community, as seen by his fellowship in The College of Labor and Employment Lawyers. Don was recently selected by his peers for inclusion in The Best Lawyers in America® 2015 and 2016 for his work in Litigation-Labor & Employment. Education: B.A. Augsburg College 1968, J.D. University of Minnesota Law School 1971.

James H. Kaster has also tried well over 100 cases to verdict or decision, including a successful case in front of the United States Supreme Court (Kasten v. Saint-Gobain Performance Plastics Corp.). He was ranked by Chambers USA as number one among plaintiffs’ employment lawyers in Minnesota, was named Lawyer of the Year by Best Lawyers in 2012, and 2016, was selected for inclusion in 2015 as well for his work in Litigation-Labor & Employment, and was named to the 2013 Super Lawyers Minnesota Top 100 List. Jim’s success in the courtroom includes earning many million dollar and multi-million dollar recoveries for the plaintiffs. Jim is also a frequent lecturer before local, state, and national organizations on damage recovery and trial skills. He has been published multiple times in the Minnesota Trial Lawyer publication and was selected as a Fellow of the American College of Trial Lawyers, which is a premier professional trial organization in America whose membership is limited to 1% of the trial lawyers in any state or province. In June 2014, Jim was recertified as a Civil Trial Law Specialist, a program administered by the Minnesota State Bar Association and approved by the State Board of Legal Certification, and which is earned by leading attorneys who have completed a rigorous approval process, including an examination in the specialty area, peer review, and documented experience. The achievement has been earned by fewer than 3% of all licensed Minnesota attorneys. Education: B.A. Marquette University 1976, J.D. Marquette University 1979.

Paul J. Lukas has been named one of the Top 40 Employment Law Lawyers by Minnesota Law and Politics, named Top Lawyer by Mpls/St. Paul Magazine and named in the Who’s Who in Employment Law by Minnesota Law and Politics. Paul is also consistently named to the Minnesota Super Lawyers list each year. Early in his career, Paul tried a wide variety of criminal cases, including the nationally renowned State v. Porter case before the Minnesota Supreme Court. He then focused his practice on civil plaintiff litigation, representing thousands of employees and consumers and obtaining well over $100MM for his clients. Paul is also a frequent lecturer on a national level. Education: B.A. St. John’s University 1988, J.D. William Mitchell College of Law 1995.

Steven Andrew Smith was recently honored by the Minnesota Chapter of the National Employment Lawyers Association as the recipient of the 2014 Karla Wahl Dedicated Advocacy Award. The Award is given to recipients “for their ceaseless and courageous efforts” to protect and advance the rights of Minnesota employees. Steve was also the recipient of the 2011 Distinguished Pro Bono Service Award from the United States

1 Biographical information for all of the firm’s associate attorneys can be found below.


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District Court for the District of Minnesota, was selected for the Merit Selection Panel regarding the Re-Appointment of U.S. Magistrate Judge Arthur J. Boylan (D. Minn. 2012), has received the Martindale Hubble AV Preeminent rating, and was named to the Best Lawyers in America list for 2014, 2015, and 2016. Steve’s trial experience includes trials to verdict in sexual harassment, whistleblower, reprisal/retaliation, commission, contract, gender discrimination, marital status discrimination, disability, and wage and hour claims. Steve has also litigated several notable cases having substantial effect on employees’ rights under state and federal employment laws. Steve is often invited to lecture on employment issues both nationally and locally. He has also authored a number of articles on employment law issues such as sexual harassment in the workplace. He was further recognized in 2014 by the United States District Court and Chief Judge Michael J. Davis for his involvement in the Pro Se Project, a project by the United States District Court of Minnesota for assisting individuals representing themselves in federal court. Education: B.A. Concordia College 1990, J.D. William Mitchell College of Law 1995 cum laude.

Michele R. Fisher has a practice primarily dedicated to national wage and hour class and collective action litigation. She has represented over a hundred thousand employees seeking to recover overpayment pay, minimum wages and commission payments. She has successfully handled numerous jury trials and arbitrations. She is a member of the firm’s management committee and the chair of its Business Development and Marketing Groups, which originate class and collective actions and market the firm. Michele is a regular speaker at local and national conferences, routinely acts as an author and editor for wage and hour publications, and is active in several organizations. She is the co-chair and a faculty member of the Practicing Law Institute’s Wage & Hour Litigation and Compliance conference, the Co-Chair of the ABA Federal Labor Standards Legislation Committee, the Co-Editor-in-Chief of the ABA Federal Labor Standards Legislation Committee’s Midwinter Report, an editorial board member for BNA’s the Fair Labor Standard Act Treatise, and a chapter editor for BNA’s Wage and Hour Laws: A State-by-State Survey (2d ed.). She has been named to the Super Lawyers and Rising Star lists repeatedly. Education: B.A. St. Cloud State University 1997, J.D. William Mitchell College of Law 2000.

Matthew H. Morgan has been an adjunct faculty member at William Mitchell College of Law and a frequent lecturer at legal seminars. He also received a CALI Award in Business Organization and was named to the Who’s Who in Employment Law. Matt was recently named to the 2014 Super Lawyers list, Minnesota Super Lawyers, Mpls/St. Paul Magazine, and Twin Cities Business. Matt is a skilled litigator, trying cases to verdict in both jury and bench trials. In 2012, Matt tried two jury trials against large health organizations and received verdicts in favor of the plaintiff in each of them. Matt has represented clients on a variety of complex matters including non-competition and non-solicitation provisions of employment and separation agreements, discrimination, retaliation, professional licensure, sexual harassment, breach of duty of loyalty, unfair competition, and breach of contract. Education: B.A. University of Minnesota 1996, J.D. William Mitchell College of Law 2000.


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Kai H. Richter has years of consumer class action experience, having managed the Complex Litigation Division of the Minnesota Attorney General’s Office prior to coming to Nichols Kaster. He has testified before the Minnesota House of Representatives Civil Law Committee regarding consumer enforcement litigation and other social justice matters. Kai is also a 2014-15 Co-Chair of the Consumer Litigation Section for the Minnesota State Bar Association. Education: B.A. Dartmouth College 1995, J.D. University of Minnesota 1999 cum laude.

Rachhana T. Srey has extensive wage and hour experience. She contributes to the National Employment Lawyers Association Class and Collective Action Committee’s quarterly publication. She recently took a large class case to trial and won significant recovery for the class members. Rachhana has spoken nationally and locally on topics related to the FLSA and discovery in civil litigation. Education: B.A. University of Minnesota 2000, J.D. William Mitchell College of Law 2004 cum laude.

Matthew C. Helland has been named to the Rising Stars list, Northern California Super Lawyers and San Francisco Magazine and has extensive employment law experience. He has spoken at several conferences and seminars on the WARN Act and EPPA and FLSA collective actions. Matt manages the firm’s San Francisco office and is well-versed in both California and Minnesota state law. Matt has worked on multiple large class actions in his career, involving a variety of issues, including wage and hour rights, WARN Act violations, breach of contract, and Truth in Lending Act claims. Education: B.A. Rhodes College 2002, J.D. University of Minnesota Law School 2005 magna cum laude.

David E. Schlesinger has represented thousands of employees in cases involving discrimination, retaliation, breach of contract, unpaid wages, shareholder rights, FLSA, and non-competes and trade secrets. David, as first-chair, has tried and won cases in both trial and arbitration. He has also argued before the Minnesota Supreme Court. David teaches Practice and Professionalism at the University of Minnesota Law School. Education: B.A. Mary Washington College 2001, J.D. University of Minnesota Law School 2006 cum laude.

Anna P. Prakash has represented thousands of employees and consumers in collective

and class actions under the Fair Labor Standards Act, Fair Credit Reporting Act, and state employment and consumer protection laws since joining Nichols Kaster in 2009. She currently helps to lead the firm’s national consumer class action team and consumer origination group. Over the course of her career, she has achieved many successes for her clients, including the summary judgment victories referenced below in Huff, Hart, and Clincy, successful appeal in Bible, and the trial verdict in FTS. Education: B.A. University of Michigan 2002, J.D. Cornell Law School 2005.

Reena I. Desai has dedicated her career to helping thousands of employees recover unpaid wages and has also handled matters involving race, age and disability discrimination. Reena has extensive complex litigation experience and frequently speaks at conferences and seminars on employment law issues. Reena has been recognized as a Rising Star from 2014-2016, won the Outstanding Achievement Award for Employment Discrimination Law by the Minnesota State Bar Association in 2008 and received the


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Dorothy O. Lareau Award for writing in law school. Education: B.A. George Washington University 2002 magna cum laude, J.D. University of Minnesota Law School 2007 cum laude.

Rebekah L. Bailey has represented tens of thousands of employees and consumers primarily in complex class and collective actions across the country. Over the years, she has served on numerous trial and arbitration teams, and successfully first chaired a bench trail. Rebekah has achieved several affirmative summary judgment determinations and certification decisions, including in Henderson, Vaughan, Spar, and Norris-Wilson, mentioned below. Rebekah has spoken at national continuing legal education seminars and was recognized as Super Lawyer in 2014, 2015, and 2016. Rebekah is an associate editor for the ABA FLSA Legislation Committee’s Mid-Winter Report, and she served as a member of the Alumni Advisory Board for the University of Minnesota’s Journal of Law & Inequality. Education: B.S. Grand Valley State University 2004 magna cum laude, J.D. University of Minnesota Law School 2008 magna cum laude.

The firm’s partners are consistently named to the Minnesota Super Lawyers or the Super Lawyers’ Rising Stars list. In January 2012, the firm’s partners were featured in Newsweek’s 20 Leaders in Employment Law showcase.

Many of Nichols Kaster’s associate attorneys have also been recognized on the Minnesota Super Lawyers and Rising Stars lists over the years. Nichols Kaster’s attorneys are active in many organizations, have been admitted in numerous state and appellate courts, and frequently speak to national audiences. Nichols Kaster has tried multiple large class actions to verdict, and its attorneys have experience arguing before the United States Supreme Court, several federal Courts of Appeals and the Minnesota Supreme Court.

JUDICIAL RECOGNITION

Courts have widely acknowledged Nichols Kaster’s exemplary class action practice. Below are a few examples of such recognition.

The Honorable Judge Sidney H. Stein of the U.S.D.C. S.D.N.Y.:

[T]he quality of representation, as evidenced by the substantial recovery and the qualifications of the attorneys, is high. As then District Judge Gerard E. Lynch recognized, Nichols Kaster is “a reputable plaintiff-side employment litigation boutique with a nationwide practice and special expertise prosecuting FLSA cases.”

Febus v. Guardian 1st Funding Grp., LLC, 870 F. Supp. 2d 337 (S.D.N.Y. June 22, 2012) (citing Imbeault v. Rick’s Cabaret Int’l Inc., No. 08-Civ.-5458 (GEL), 2009 WL 2482134, at *3 (S.D.N.Y. Aug. 13, 2009)) (granting motion for attorneys’ fees).


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Special Master David R. Cohen (appointed by the Honorable Kathryn Vratil):

So I’ll just close by saying that this is as complicated a question as any I’ve seen in any case I’ve worked by a factor of, you know – not just a little bit more complicated. It’s enormously more complicated. And the worked that all of you have put into trying to solve this problem ranging from your legal analysis to your math has been really extraordinary.

Sibley v. Sprint Nextel Corp., No. 08-2063 (D. Kan. Dec. 19, 2014) (transcript from expert summit) (addressing both parties).

The Honorable Judge Michael J. Davis of the U.S.D.C. D. Minn.:

The settlement was the result of arm’s-length negotiations between experienced counsel. Class Counsel is well known by this Court for their expertise in wage and hour litigation.

Burch v. Qwest Commc’ns Intl., No. 06-03523 (D. Minn. Sept. 14, 2012) (granting settlement approval).

The Honorable Judge Paul A. Engelmayer of the U.S.D.C. S.D.N.Y.:

The high quality of Nichols Kaster’s representation strongly supports approval of the requested fees. The Court has previously commended counsel for their excellent lawyering. See Dkt 541 at 98 (“I have benefited by very high-quality briefing from both of you.”). The point is worth reiterating here. Nichols Kaster was energetic, effective, and creative throughout this long litigation. The Court found Nichols Kaster’s briefs and arguments first-rate. And the documents and deposition transcripts which the Court reviewed in the course of resolving motions revealed the firm’s far-sighted and strategic approach to discovery….Further, unlike in many class actions, plaintiffs’ counsel did not build their case by piggybacking on regulatory investigation or settlement. … The lawyers at Nichols Kaster can genuinely claim to have been the authors of their clients’ success.

Hart v. RCI Hospitality Holdings, Inc., No. 09 Civ. 3043, 2015 WL 5577713 (S.D.N.Y. Sept. 22, 2015) (granting final approval of settlement and awarding attorneys’ fees and costs).

The Honorable Judge William Alsup of the U.S.D.C. N.D. Cal.: …Mr. Richter did a fine job in a case I had. …. and he came back with a real settlement that benefited those class members. He did an excellent job in that case.


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Lane v. Wells Fargo Bank, N.A., No. 12-4026 (N.D. Cal.) (transcript from hearing on motion for class certification and Nichols Kaster’s motion to intervene) (referring to the settlement achieved by Nichols Kaster attorney Kai Richter in Hofstetter v. Chase Home Fin., LLC, No. 10-01313).

I want to say that both sides here have performed at an admirable level. And I wish that the lawyers of all cases would perform at your level. I say this to both of you, because you have you have been of assistance to the Court.

Hofstetter v. Chase Home Fin., LLC, No. 10-01313 (N.D. Cal. Nov. 7, 2011) (transcript from final class settlement approval hearing).

Plaintiffs’ counsel are experienced class-action counsel. Hofstetter, No. 10-01313, 2011 WL 1225900 (N.D. Cal. Mar. 31, 2011) (order appointing Nichols Kaster as class counsel and certifying the classes).

The Honorable Judge Richard H. Kyle of the U.S.D.C. D. Minn.: Well, I think you did a great job on this. I mean, I really do. It's nice to see when cases go, and go quickly, and I know that it's a little different than a lot of other cases but it still -- you still have a lot of fooling around here that doesn't have to be done, but it seems to me you folks have gotten it done the right way. So I look forward to seeing you all [at the final approval hearing].

Bible v. Gen. Revenue Corp., 12-CV-1236 (D. Minn. Jan. 6, 2014) (transcript from preliminary approval hearing).

The Court finds that counsel is competent and capable of exercising all responsibilities as Class Counsel for the Settlement Class.

Bible, No. 12-CV-136 (D. Minn. Jan. 7, 2014) (appointing Nichols Kaster as class counsel and preliminarily certifying a consumer protection class regarding claims under the Fair Debt Collection Protection Act).

..the court finds that Plaintiffs’ Lead Counsel are qualified to represent the Class.

Stewart v. CenterPoint Energy Resources Corp., 05-CV-1502-RHK/AJB, 2006 WL 839509, at *1 (D. Minn. Mar. 28, 2006) (appointing class counsel and preliminarily certifying consumer protection class regarding illegal heat shut-offs for settlement purposes).

The Honorable Chief Judge Deborah Chasanow of the U.S.D.C. D. Md.:

…the attorneys at Nichols Kaster, PLLP are qualified, experienced, and competent, as evidenced by their background in litigating class-action cases involving FCRA violations. ….


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As noted above, Plaintiffs’ attorneys are experienced and skilled consumer class action litigators who achieved a favorable result for the Settlement Classes.

Singleton v. Domino’s Pizza, LLC, 976 F. Supp. 2d 665, 677, 683 (D. Md. 2013) (granting final approval of consumer class action settlement).

…the attorneys at Nichols Kaster, PLLP, are qualified, experienced, and competent.

Singleton, No. 11-cv-01823 (D. Md. May 13, 2013) (appointing class counsel and preliminarily certifying consumer protection classes regarding claims under the Fair Credit Reporting Act for settlement purposes).

The Honorable Judge Joan M. Azrack of the U.S.D.C. E.D.N.Y.:

…Plaintiffs’ counsel “have an established record of competent and successful prosecution of large wage and hour class actions, and the attorneys working on the case are likewise competent and experienced in the area.” Nichols Kaster and O&G’s lawyers have substantial experience prosecuting and settling employment class actions, including wage and hour class actions and are well-versed in wage and hour law and in class action law….Courts have repeatedly found Nichols Kaster and O&G to be adequate class counsel in employment law class actions.

Westerfield v. Wash. Mut. Bank, No. 06-2817, 2009 WL 6490084 (E.D.N.Y. June 26, 2009) (preliminarily approving settlement and appointing class counsel).

The Honorable Judge Virginia A. Phillips of the U.S.D.C. C.D. Cal.:

Plaintiffs have demonstrated sufficiently that their counsel will represent the proposed classes adequately. Counsel has identified and investigated the claims in this action, has extensive experience handling class actions similar to this one, has demonstrated knowledge of the applicable law, and has adequate resources to represent the proposed classes.

Cervantez v. Celestica Corp., 253 F.R.D. 562, 574 (C.D. Cal. July 30, 2008) (appointing class counsel and certifying the class).

Over the past two years, Class Counsel has been active in all stages of litigation and has particularly benefitted Plaintiffs through capable handling of motion practice. For example, Plaintiffs obtained summary judgment on a key issue involving the Morillion doctrine and defeated summary judgment on Defendants’ de minimis defense.


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Cervantez, No. 07-729 (C.D. Cal. Oct. 29, 2010) (granting final approval of settlement).

The Honorable Magistrate Judge Leo I. Brisbois of the U.S.D.C. D. Minn.

Surprisingly Defendants also argue that Plaintiff’s legal counsel is not able to vigorously prosecute this case, asserting that [Michele Fisher] and her firm do not have experience with prevailing wage class action suits. Defendant’s conclusory assertion is without merit. In support of his motion, Plaintiff submitted the resume of his firm Nichols Kaster, LLP, which indicates that Plaintiff’s counsel has extensive experience with wage disputes and class actions.

Seipel v. Safety Signs, Inc., No. 15-cv-71 (D. Minn. Aug. 27, 2015) (ECF No. 64) (recommending that plaintiff’s motion for class certification under Fed. R. Civ. P. 23 be granted and Nichols Kaster be appointed as class counsel)

The Honorable Magistrate Judge Laurel Beeler of U.S.D.C. N.D. Cal.

Plaintiffs retained counsel with significant experience in prosecuting force-placed insurance cases, and other courts in this district have appointed them class counsel in force-placed insurance cases. … Counsel have worked vigorously to identify and investigate the claims in this case, and, as this litigation has revealed, understand the applicable law and have represented their clients vigorously and effectively.

Ellsworth v. U.S. Bank, N.A., No. C 12-02506 LB, 2014 WL 2734953 at *18 (N.D. Cal. June 13, 2014) (granting plaintiffs’ motion for class certification and appointing Nichols Kaster as class counsel).

The Honorable Judge Kathryn Vratil of U.S.D.C. D. Kan.:

The Court must consider the work counsel has done in identifying or investigating potential claims in the actions, counsels' experience in handling class actions and other complex litigation and claims of the type asserted in the present action, counsels' knowledge of the applicable law, and the resources counsel will commit to representing the class. Fed.R.Civ.P. 23(g)(1)(C). After reviewing the record, the Court is satisfied that the firms of Nichols Kaster, PLLP and Stueve Siegel Hanson LLP satisfy these criteria and will adequately represent the interests of the class as counsel.

Sibley v. Sprint Nextel Corp., 254 F.R.D. 662, 677 (D. Kan. 2008) (order granting class certification and appointing Nichols Kaster as class counsel).

The Honorable Magistrate Judge Tony N. Leung of the U.S.D.C. D. Minn.:


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…[T]he combined experience of Plaintiffs’ counsel as well as the fact that employment law, particularly the representation of employees, forms a large part of both the firm and counsel’s practice persuades this Court that the law firm of Nichols Kaster, PLLP, and its attorneys Steven Andrew Smith and Anna P. Prakash will more than adequately protect the interests of the Class Members.

Fearn v. Blazin’ Beier Ranch, Inc., No. 11-743 (D. Minn. Jan. 30, 2012) (recommending preliminary approval of settlement and appointing class counsel).

Plaintiffs have shown good cause under Rule 16(b) because Plaintiffs’ new counsel has shown the necessary diligence. Plaintiffs brought on Nichols Kaster, an experienced employment law firm of high repute as lead counsel in May 2012. Since that time, Plaintiffs have made a concerted effort to comply with this Court’s orders and deadlines.

Alvarez v. Diversified Main. Sys., Inc., No. 11-3106 (D. Minn. Aug. 21, 2012) (granting motion to amend).

The Honorable Judge Gary Larson of Minn. Dist. Ct., Hennepin County:

…Plaintiff’s counsel are qualified, experienced attorneys that are fully capable of conducting this class action litigation…they are highly qualified, knowledgeable attorneys that are willing to invest the resources necessary to fully prosecute this case.

Karl v. Uptown Drink, LLC, No. 27-CV-10-1926 (Minn. Dist. Ct. Nov. 17, 2010) (appointing Nichols Kaster as class counsel and certifying the class).

The Honorable Judge Susan M. Robiner:

Plaintiffs’ counsel are adequate legal representatives for the class. They have done work identifying and investigating potential claims, have handled class actions in the past, know the applicable law, and have the resources necessary to represent the class. The class will be fairly and adequately represented.

Spar v. Cedar Towing & Auction, Inc., No. 27-CV-411-24993 (Minn. Dist. Ct. Oct. 16, 2012) (certifying class and appointing Nichols Kaster as class counsel).

The Honorable Judge David N. Hurd of the U.S.D.C. N.D.N.Y.:

Finally, Plaintiffs and their counsel have fairly and adequately represented the interests of the Settlement Classes.


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Casey v. Citibank, N.A., et al., 12-CV-820, and Coonan v. Citibank, N.A., 13-CV-353 (N.D.N.Y. April 2, 2014) (appointing Nichols Kaster as co-lead counsel and preliminarily approving class wide settlement classes in a $110MM force-placed insurance settlement)

The Honorable Judge Lorna G. Schofield of the U.S.D.C. S.D.N.Y.:

Nichols Kaster has demonstrated it is able fairly and adequately to represent the interests of the putative class

Ernst v. DISH Network, LLC, et al., 12-CV-8794 (S.D.N.Y. July 23, 2013) (appointing Nichols Kaster as interim class counsel for a putative class with Fair Credit Reporting Act claims against consumer reporting agency).

The Honorable Judge John G. Koetl of the U.S.D.C. S.D.N.Y.:

..[C]lass counsel ha[s] demonstrated their interest in vigorously pursuing the claims of the class.

Hart v. Rick’s Cabaret, Intl., Inc., No. 09-3043, 2010 WL 5297221, at *6 (S.D.N.Y. Dec. 20, 2010) (appointing Nichols Kaster as class counsel and certifying the class).

The Honorable Judge Larry Alan Burns of the U.S.D.C. S.D. Cal.:

[Defendant] doesn’t question whether Plaintiffs are represented by qualified and competent counsel, and it’s obvious that they are. Plaintiffs’ are represented by a national law firm, Nichols Kaster, that specializes in employment and class action law.

Norris-Wilson v. Delta-T Grp., Inc., 270 F.R.D. 596, 605 (S.D. Cal. 2010) (certifying a Rule 23 wage and hour class and appointing Nichols Kaster as class counsel).

The Honorable Judge Susan Richard Nelson of the U.S.D.C. D. Minn.:

Plaintiffs’ Counsel are qualified attorneys with extensive experience in class action and wage and hour litigation and are hereby appointed as Class Counsel.

Alvarez v. Diversified Main. Sys., Inc., No. 11-3106 (D. Minn. Feb. 14, 2013) (appointing class counsel and preliminarily certifying the class for settlement purposes).

The Honorable Judge Thomas D. Schroeder of the U.S.D.C. M.D.N.C.: However, the difficulty of the legal issues involved [and] the skill and experience of Plaintiffs’ counsel in FLSA cases . . . make an enhancement of the lodestar amount appropriate in this case.


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Latham v. Branch Banking & Trust Co., No. 1:12-cv-00007, 2014 WL 464236 (M.D.N.C. Jan. 14, 2014) (granting final approval of class action settlement).

Arbitrator Joel Grossman, Esq. The Arbitrator also notes that the briefs submitted by Claimant’s counsel and the performance at the hearing by Claimant’s counsel were of a very high quality.

Green v. CashCall, Inc., JAMS Arbitration No. 1200047225(JAMS Aug. 22, 2014) (awarding Nichols Kaster’s fees and costs).

AREAS OF PRACTICE

EMPLOYMENT LITIGATION: Collective/Class Actions & Individual Plaintiffs

Nichols Kaster has, and continues to, litigate on behalf of thousands of employees in multiple state and nationwide cases. The firm has filed lawsuits regarding various violations, including but not limited to, failure to pay overtime, minimum wage violations, misclassification, off-the-clock work, donning and doffing, discrimination, and Minnesota gratuities statutes violations. Types of Employment Cases Nichols Kaster Handles: -Fair Labor Standards Act, Overtime & Minimum Wage Violations -Wage Fixing -Equal Pay Act -Criminal Background Discrimination -Federal Railway Safety Act Violations -Employee Benefits -Breach of Contract -Non-Compete Agreements -Defamation -Severance -Workers Adjustment Retraining Notification Act -Sexual Harassment -Discrimination -Americans with Disability Act -Family Medical Leave Act -Retaliation Claims CONSUMER LITIGATION: Class Actions

Nichols Kaster has developed a national consumer class action team dedicated to investigating and filing suits to ensure consumers’ rights are represented. The consumer cases the firm has filed have alleged various violations, some of which are listed below. In the last six years, the


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firm has initiated more than 140 consumer cases, the vast majority of which were brought on a class-wide basis. Types of Consumer Cases Nichols Kaster Handles: -Force-Placed Insurance -Fair Credit Reporting Act -Improper Background Checks -Fair Debt Collection Practices Act -Student Loans -False Advertising & Deceptive Marketing -Information Privacy/Data Breach -Interest Overcharges & Misapplication of Loan Payments -Predatory Lending -Unfair & Deceptive Business Practices -Unfair & Unconscionable Contracts -Unfair Credit Billing Practices -Unfair Credit Reporting Practices -Unfair Debt Collection Practices WHISTLEBLOWER/QUI TAM Nichols Kaster represents whistleblowers across the country, protecting individuals who have “blown the whistle” on illegal activity. These cases involve the reporting of possible government fraud, mishandling of toxic substances, violations of tax or securities laws, discrimination in education, failure to provide access to public facilities, and more. Nichols Kaster also represents individuals who have brought claims on behalf of the government against entities who have defrauded the government under the False Claims Act (also known as “qui tam” lawsuits).

NOTABLE LITIGATION RESULTS Recent highlights of Nichols Kaster’s cases include: In Clark v. Centene Co. of Tex., L.P., No. 15-50606, --- F. App’x ----, 2016 WL 3974099 (5th Cir. July 22, 2016) (per curiam), the U.S. Court of Appeals for the Fifth Circuit affirmed a lower court decision that appeals nurses do not fall within the administrative or professional exemptions of the FLSA overtime requirements. In Henderson v. 1400 Northside Drive, Inc., No. 1:13-cv-3767, 2016 WL 3125012 (N.D. Ga. June 3, 2016), the district court granted in part Plaintiffs’ affirmative motion for summary judgment on the issues of: (1) whether the owner qualified as a joint employer, (2) the viability


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of the defendants’ counterclaims, and (3) whether minimum wage damages includes recovery for fines, fees, and tipouts paid by the employee to the employer. In Carter v. HealthPort Technologies, LLC, No. 15-1072, 822 F.3d 47, 2016 WL 2640989 (2d Cir. May 10, 2016), the U.S. Court of Appeals for the Second Circuit vacated and remanded the district court’s dismissal of plaintiff’s complaint, finding that plaintiff’s had Article III standing to bring this action regarding the excessive fees for providing copies of plaintiffs’ medical records charged by defendants, and stating that “because the complaint alleged that each name plaintiff “through [her or his] counsel” had “paid” the charges demanded for the records, and that the “ultimate expense” was borne by the plaintiffs, the complaint plausibly alleged that plaintiffs, as principals acting through their agents, had been injured by the alleged overcharges.” Id. In Bowers v. BB&T Corporation, No. 1:15-cv-732-CCE-JEP (M.D.N.C. April 18, 2016), the court denied defendant’s motion to dismiss, finding that plaintiff’s allegations regarding Employment Retirement Income Security Act (“ERISA”) violations related to defendant’s management of plaintiffs’ 401(k) Savings Plans are sufficient for litigation to move forward. In Brotherston v. Putnam Investments, LLC, No. 1:15-cv-13825-WGY (D. Mass. April 7, 2016), the court denied defendant’s motion to dismiss, finding that plaintiff’s allegations regarding Employment Retirement Income Security Act (“ERISA”) violations related to defendant’s management of plaintiffs’ 401(k) Savings Plans are sufficient for litigation to move forward. In Monroe v. FTS USA, LLC, No. 2:08-cv-21 (W.D. Tenn. Oct. 2011), the jury found that defendants willfully violated the Fair Labor Standards Act by failing to pay nearly 300 cable installers for all overtime hours worked. The district court entered judgment with damages for the plaintiffs. The case is currently at the Sixth Circuit. In Vaughan v. M-Enterm’t Props., LLC, No. 1:14-CV-914 (N.D. Ga. Mar. 15, 2016), the district court granted in part exotic dancer plaintiffs’ affirmative motion for summary judgment on the issues of (1) whether entertainers qualify as employees under the FLSA, (2) whether related entity defendants qualified as joint employers, (3) the viability of the defendants’ offset defense, and (4) the viability of the defendants’ counterclaims. In Heaton v. Social Finance, Inc., No. 3:14-cv-05191-TEH (N.D. Cal. Oct. 15, 2015), the court denied defendants’ motion for summary judgment, finding that there were triable issues of fact as to whether defendants had violated the statutes at issue, whether the alleged violations were willful, and finding that defendants had failed to meet their burden as to plaintiffs’ claims under the California Unfair Competition Law. In Bible v. United Student Aid Funds, Inc., 799 F.3d 633 (7th Cir. 2015), reh’g. en banc denied, 807 F.3d 839 (7th Cir. 2015), cert. denied, 136 S. Ct. 1607 (2016) the U.S. Court of Appeals for the Seventh Circuit reversed the district court’s dismissal of plaintiff’s complaint against a student loan guarantor for wrongfully charging collection fees on a defaulted student loan, finding that plaintiff’s claims for breach of contract and for violations of the RICO Act were not preempted by the Higher Education Act, and stating that “a guaranty agency may not impose collection costs on a borrower who is in default for the first time but who has timely entered into and complied with an alternative repayment agreement.” Id.


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In Tamez v. BHP Billiton Petroleum (Americas), Inc., No. 5:15-cv-00330 (W.D.T.X. Oct. 5, 2015), the court granted plaintiffs’ motion for conditional certification, conditionally certifying a class of employees alleging violations of the overtime wage provisions of the Fair Labor Standards Act by a multinational corporation that produces major commodities including oil and gas. In Payne v. WBY, Inc., No. 1:14-CV-913 (N.D. Ga. Sept. 10, 2015), the court denied defendant’s motion to compel arbitration of opt-in plaintiffs in an FLSA conditionally certified collective action. The court held that the defendant’s alleged posting of an arbitration agreement on a bulletin board in the breakroom without additional notice to workers of its existence, its terms, or its binding nature was insufficient to establish an offer or acceptance of its terms. In Miller v. Fleetcor Technologies Operating Co., LLC, 118 F. Supp. 3d 1351 (N.D. Ga. 2015), the court denied defendant’s motion for decertification, agreeing with plaintiffs that each individual claim and the case as a whole should be kept together, allowing plaintiffs to move forward as a collective group. In Johnson v. Casey’s Gen. Stores, Inc., 116 F. Supp. 3d 944 (W.D. Mo. July 27, 2015), the court denied defendant’s motion to dismiss, finding that plaintiff’s allegations regarding Fair Credit Reporting Act violations and the willfulness of defendant’s conduct sufficient for litigation to move forward. In Henderson v. 1400 Northside Drive, Inc., 110 F. Supp. 3d 1318 (N.D. Ga. 2015), the court granted plaintiffs’ motion for partial summary judgment on the issues of: (1) the creative professional exemption, finding that defendants misclassified adult entertainers as exempt from the overtime and minimum wage requirements of the FLSA; and (2) offset, finding that defendants could not offset their minimum wage obligations with tips paid by customers to adult entertainers. In Clark v. Centene Company of Texas, LP, 104 F. Supp. 3d 813 (W.D. Tex. 2015), upon the conclusion of a bench trial, the court awarded damages to a collective action of utilization review nurses. The court found that plaintiffs submitted sufficient evidence to create a just and reasonable inference as to overtime hours worked by the collective and awarded liquidated damages. This victory followed the court’s order on the parties’ cross-motions for summary judgment and defendant’s motion for decertification last year, holding that the defendant misclassified its utilization nurses. 44 F. Supp. 3d 674 (W.D. Tex. 2014). The court ruled that plaintiffs are not exempt from the Fair Labor Standards Act’s overtime laws and are thus eligible for overtime pay. The court further held that defendant’s claim that each plaintiff’s claim would need to be analyzed individually to determine liability and damages was without merit. In Lengel v. HomeAdvisor, Inc., 102 F. Supp. 3d 1202 (D. Kan. 2015), the court denied defendant’s motion to dismiss, finding that plaintiff’s allegations regarding Fair Credit Report Act violations and the willfulness of defendant’s conduct sufficient for litigation to move forward.


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In Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (2015), the United States Supreme Court ruled unanimously in favor of a group of employees represented by Nichols Kaster. The Court upheld a Department of Labor interpretation granting minimum wage and overtime compensation for mortgage loan officers. In Febus v. Guardian First Funding Group, LLC, 90 F. Supp. 3d 240 (S.D.N.Y. Mar. 4, 2015), plaintiffs brought a motion to enforce a wage and hour settlement from which one of the individual defendants defaulted. The court ordered the defendant pay the amount due, imposed an additional thirty percent penalty on the amount due, and awarded interest. The court noted that Nichols Kaster had been “attempting, in vain, to collect,” and emphasized that defendant “cannot avoid his contractual obligations because he has decided that the settlement terms no longer suit his interests.” In Hart v. Rick’s Cabaret Int’l, Inc., No. 09 Civ 3043, the court denied decertification of the FLSA Collective and Rule 23 Class of approximately 2,300 adult entertainers at Rick’s Cabaret in New York and granted, in part, plaintiffs’ affirmative motion for partial summary judgment on damages, finding that no reasonable jury could conclude the Class was owed less than $10.8 million. 2014 WL 6238175 (S.D.N.Y. Nov. 14, 2014). This significant ruling came approximately one year after the court ruled that the Class and Collective Members are employees as a matter of law under the FLSA and New York Labor Law and that Rick’s Cabaret violated both laws by failing to pay wages. The court further held that the money entertainers received from Rick’s Cabaret’s customers were tips and not service charges that could offset wage obligations and that Rick’s Cabaret violated New York Labor Law by charging Class and Collective Members fines and fees as a condition of employment. 967 F. Supp. 2d 901 (S.D.N.Y. Sept. 10, 2013). On September 22, 2015, the court granted final approval of a class-wide $15 million gross settlement, finding the settlement to be fair, reasonable, and adequate and further awarding plaintiffs’ counsel’s attorneys’ fees, expenses, and service awards to the named plaintiffs and discovery participants. 2015 WL 5577713 (S.D.N.Y. Sept. 22, 2015). In the consolidated lawsuits of Casey v. Citibank, N.A., No. 5:12-cv-0820 (N.D.N.Y.) and Coonan v. Citibank, N.A., No. 1:13-cv-00353 (N.D.N.Y.) (Aug. 21, 2014), the court granted final approval of an approximately $110 million settlement on behalf of settlement classes who were force-placed with flood or hazard insurance by Citibank, N.A. The settlement also provides substantial injunctive relief, forbidding Citibank and its affiliates from accepting commissions or any other form of compensation in connection with force-placed insurance for a period of six years, places limits on the amount of insurance coverage that Citibank may require borrowers to maintain, and requires Citibank to offer class members the opportunity to reduce their flood insurance coverage if Citibank had increased their coverage amount to an amount in excess of the amount required under federal law. The court found the settlement to be “fair, reasonable, and adequate, in the best interests of the Settlement Classes” and overruled nine objections. In Bible v. General Revenue Corp., No. 12-cv-01236 RHK (D. Minn. June 27, 2014), the court granted final approval of a $1.25 million settlement on behalf of approximately 134,000 class members, more than double the statutory cap for a Fair Debt Collection Practices Act class action.


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In Pearsall-Dineen v. Freedom Mortgage Corp., No. 13-cv-06836-JEI-JS, 2014 WL 2873878 (D. N.J. June 25, 2014), the court conditionally certified the Fair Labor Standards Act overtime case as a collective action. The judge’s order authorized notice of the lawsuit to be disseminated to all mortgage underwriters who worked for Freedom Mortgage in the last three years, providing them the opportunity to join the lawsuit and to assert their overtime claims against the defendant for failing to pay them overtime hours. In Wolfram v. PHH Corp., No. 12-cv-599 (S.D. Ohio June 17, 2014), the court granted plaintiffs’ motion for partial summary judgment, finding that the assigned real estate offices from where plaintiffs, who are current or former loan officers employed by defendant, worked where all serving as the “employer’s place of business” under the outside sales exemption of the Fair Labor Standards Act. This established that an employee may work from multiple sites, not technically owned or operated by the employer, and each of those sites can be considered the “employer’s place of business” under the regulations, therefore any work performed at these sites is not “outside” work under the outside sales exemption. In Ellsworth v. U.S. Bank, N.A., No. C 12-2506-LB, 2014 WL 2734953 (N.D. Cal. June 13, 2014), the court issued a broad class certification ruling on behalf of plaintiff-borrowers who were force-placed with flood insurance. In its order, the court certified multi-state classes of borrowers spanning forty different states to pursue claims against U.S. Bank for breach of their mortgage agreements stemming from U.S. Bank’s force-placed insurance practices. In addition, the court separately certified classes of borrowers in California and New Mexico to pursue claims against U.S. Bank and its force-placed insurance vendor, ASIC, for unjust enrichment, unfair business practices, and/or breach of the covenant of good faith and fair dealing. In MacIntyre v. Lender Processing Services, Inc., No. 3:13-cv-89-J-25JBT (M.D. Fla. Apr. 29, 2014), the court granted affirmative summary judgment to plaintiff (a Minnesota resident) on a breach of contract claim for an unpaid bonus, and used its discretion to enforce Minnesota state law for defendant’s (a Florida company) failure to promptly pay wages. The court simultaneously denied defendant’s motion to dismiss plaintiff’s gender discrimination claims ruling, in part, that defendant’s actions toward plaintiff constituted direct evidence of gender discrimination. In Arnett v. Bank of America, N.A., No. 3:11-cv-01372-SI (D. Or. Apr. 17, 2014), the court preliminarily approved a $31 million settlement for approximately 625,000 class members, the largest common fund settlement ever negotiated in a case involving force-placed flood insurance. In Rhodes v. CashCall, JAMS Ref. No. 1200047475, Garcia v. CashCall, JAMS Ref. No. 1200047422, Good v. CashCall, JAMS Ref. No. 1200047220, and Green v. CashCall, Inc., JAMS Ref. No. 1200047225 (2014), a JAMS arbitrator ruled that CashCall misclassified Rhodes and Green, loan processers, and Garcia and Good, underwriters, as exempt from the overtime requirements of California and federal law. The arbitrator awarded Rhodes $15,000 in unpaid overtime plus an additional $15,000 in liquidated damages, along with $88,179 in attorneys’ fees and costs, Green was awarded $15,067.72 in damages, as well as $54,165.50 in attorneys’ fees and costs. The arbitrator also awarded Garcia $10,000 in unpaid overtime plus an additional


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$10,000 in liquidated damages, along with $98,709 in attorneys’ fees and costs, and Good was awarded $43,631 in unpaid overtime, as well as $50,627.49 in attorneys’ fees and costs. In Farmer v. Bank of America, N.A., No. 5:11-cv-00935-OLG (W.D.T.X. Oct. 18, 2013), the court granted final approval of the parties’ multi-million dollar settlement with significant prospective injunctive relief, finally certifying a class of 25,000 Texas mortgagors who had been sent letters requesting proof of hazard insurance in violation of the language of their deeds of trust, and appointing Nichols Kaster as class counsel. In Huff v. Pinstripes, Inc., 972 F. Supp. 2d 1065 (D. Minn. 2013), the court ruled in plaintiffs’ favor on cross-motions for summary judgment, finding that Pinstripes had violated the Minnesota Fair Labor Standards Act’s provisions on tip-pooling by requiring its servers to share their tips with “server assistants,” who act as servers’ support staff at the restaurant. In Walsten v. Shank Power Products Co., Inc., No. 19HA-CV-12-1094 (Minn. Dist. Ct., Sept. 9, 2013), a minority shareholder case, an advisory jury returned a $700,000 verdict for the plaintiff, finding for him on his claims for breach of fiduciary duty and violation of his reasonable expectation of continuing employment. The trial judge subsequently issued an order sustaining the $700,000 advisory verdict and awarding $200,000 in attorneys’ fees. In Karl v. Uptown Drink, LLC, 835 N.W.2d 14 (Minn. Aug. 14, 2013), the Minnesota Supreme Court ruled that under Minnesota law, employers cannot require employees to reimburse them from their tips for items such as cash register shortages, unsigned credit card receipts, and customer walk outs. The Court also found that employees do not have to show that because of the deductions their wages fell below the minimum wage in order to prove a violation of Minn. Stat. § 181.79. In this case, the plaintiffs were over 750 employees who worked at three different bars/night clubs in Minneapolis. At a jury trial in 2011, the plaintiffs prevailed on their record-keeping and certain minimum wage claims, but lost on the unlawful deductions claims. Nichols Kaster appealed the deductions issue, and took it all the way to the Minnesota Supreme Court, where the Court agreed with plaintiffs and instructed the lower court to enter judgment on the plaintiffs’ behalf on this claim. In Ernst v. DISH Network, LLC, No. 12-8794-LGS (S.D.N.Y. July 23, 2013), the court appointed Nichols Kaster as interim class counsel for the putative class with claims against Defendant Sterling Infosystems, Inc., finding that Nichols Kaster had “demonstrated it is able fairly and adequately to represent the interests of the putative class. On September 22, 2014, the court ruled on plaintiff’s and two of the defendants’ cross-motions for partial summary judgment, granting plaintiff’s motion and denying defendants’ motion. The court ruled that the summary report received by two of the defendants was a “consumer report” for purposes of the Fair Credit Reporting Act because it “communicated information bearing on Plaintiff’s character, general reputation, or mode of living, and the information was collected and expected to be used for ‘employment purposes.’” (Order, S.D.N.Y Sept. 22, 2014.) In Holmes v. Bank of America, N.A., 2013 WL 2317722 (W.D.N.C. May 28, 2013), the court denied four motions to dismiss plaintiffs’ claims regarding force-placed insurance and allowing the case to proceed.


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In Singleton v. Domino’s Pizza, LLC, No. 8:11-cv-01823(D. Md. May 13, 2013), the court granted preliminary approval of the parties’ proposed $2.5 million settlement under the Fair Credit Reporting Act in a case where plaintiffs alleged that the defendant employer had improperly procured consumer reports on employees and applicants and had failed to comply with the pre-adverse action notice requirements of the Act. The court preliminarily certified three settlement classes of over 50,000 people and appointed Nichols Kaster as class counsel, describing the firm as “qualified, experienced, and competent.” In Ulbrich v. GMAC Mortgage, No. 11-32424 (S.D. Fla. May 10, 2013), the court granted final settlement approval and appointed Nichols Kaster as class counsel for a 2,000+ nationwide class. The case involved claims against GMAC Mortgage, LLC and Balboa Insurance Services, Inc. relating to force-placed wind insurance. In Kirsch v. St. Paul Motorsports, Inc., No. 11-cv-02624, 2013 WL 1900620 (D. Minn. May 7, 2013), the court denied defendants’ motion for summary judgment in its entirety, finding that plaintiff had put forth sufficient evidence for a prima facie claim of age discrimination. In Gustafson v. BAC Home Loan Services, LP, No. 8:11-cv-00915 (C.D. Cal. Feb. 27, 2013), Judge Josephine Staton Tucker appointed Nichols Kaster as co-lead interim class counsel for multiple putative classes in a force-placed insurance case against Bank of America and other defendants. In Boaz v. Federal Express Customer Info. Services, Inc., 725 F.3d 603 (6th Cir. 2013), the U.S. Court of Appeals for the Sixth Circuit ruled that plaintiff, a FedEx project manager who had claimed that FedEx had failed to pay her overtime wages, in violation of the Fair Labor Standards Act, and paid her less than male coworkers performing the same job, in violation of the Equal Pay Act, could pursue her overtime and gender discrimination claims. The federal laws at issue provide employees three years to file a lawsuit and FedEx had plaintiff sign an application which stated that lawsuits had to be brought within 6 months or claims were lost. The lower court had dismissed plaintiff’s claims, citing the application. The Sixth Circuit unanimously sided with plaintiff, reversed the dismissal and remanded the case for trial. In Calderon v. GEICO General Insurance Co., 2012 WL 6889800 (D. Md. Nov. 29, 2012), the court granted summary judgment in favor of approximately one hundred current and former Security Investigators for GEICO, finding that they were not covered by the administrative exemption. Specifically, the court held that plaintiffs did not exercise discretion and independent judgment as to matters of significance. In Spar v. Cedar Towing & Auction, Inc., Case No. 27-CV-11-24993 (Minn. Dist. Ct., Oct. 16, 2012), Nichols Kaster won class certification and was appointed class counsel for a class of approximately six thousand Minneapolis consumers who plaintiffs alleged had been charged illegal towing fees by defendant. In Walls v. JPMorgan Chase Bank, N.A., Civ. No. 3:11-cv-00673, 2012 WL 3096660 (W.D. Ky. July 30, 2012), a case regarding force-placed flood insurance, the court denied defendant’s motion to dismiss, stating that the plaintiff’s mortgage agreement did not explicitly provide that the lender’s flood insurance requirement could change at will and that Kentucky contracts


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contain provisions which can impose limits on discretion afforded by a contract, thus rejecting defendant’s interpretation of plaintiff’s mortgage agreement for purposes of the motion. In Bollinger v. Residential Capital, 863 F. Supp. 2d 1041 (W.D. Wash. May 30, 2012), the court granted plaintiffs’ motion for partial summary judgment, finding that defendants misclassified the underwriter plaintiffs under the administrative exemption, and rejected defendants’ argument that there was no evidence of willful violation of the FLSA, stating that “a jury could conclude that Defendants knowingly and recklessly” misclassified plaintiffs. In Lass v. Bank of America, N.A., 695 F.3d 129 (1st Cir. 2012), the United States Court of Appeals for the First Circuit struck down the district court’s ruling that had dismissed plaintiff’s claims. The Court found that plaintiff’s allegations regarding excessive flood insurance and improper kickbacks had been properly alleged and that the case should proceed. In Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), the United States Supreme Court found in favor of the plaintiff and held that “an oral complaint of a violation of the Fair Labor Standards Act is protected conduct under the [Act’s] anti-retaliation provision.” This was a huge win for employees all over the country, as the Supreme Court’s decision set a new FLSA anti-retaliation standard. In Clincy v. Galardi South Enterprises, Inc., 808 F. Supp. 2d 1326 (N.D. Ga. Sept. 7, 2011), the court granted plaintiffs’ motion for partial summary judgment on the issue of misclassification, finding that defendants misclassified adult entertainers as independent contractors and that the entertainers were in fact employees covered by the FLSA. In Eldredge v. City of Saint Paul, Civ No. 09-2018 (D. Minn. 2011), plaintiff Eldredge reached a settlement of his case that was the second largest paid by the City of Saint Paul in an employment lawsuit. In Hofstetter v. JPMorgan Chase Bank, N.A., 2011 WL 1225900 (N.D. Cal. Mar. 31, 2011), Nichols Kaster was appointed class counsel for four classes encompassing approximately 40,000 mortgagors against Chase Bank. In the same case, Nichols Kaster secured an approximately $10MM settlement for the classes. Hofstetter, 2011 WL 5545912 (N.D. Cal. Nov. 14, 2011). In Stewart v. CenterPoint Energy Resources Corp., 2006 WL 839509 (D. Minn. Mar. 26, 2006), Nichols Kaster achieved a significant class action settlement on behalf of more than 2,500 low-income households who were left without heat by CenterPoint Energy in violation of Minnesota’s “Cold Weather Rule.”

ASSOCIATE BIOGRAPHIES

Alexander M. Baggio: Alex focuses on class and collective actions, currently representing thousands of employees regarding commission payments, minimum wage, overtime, and


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improper meal and break deductions. Prior to working at Nichols Kaster, Alex clerked for the Honorable Gary Larson and Janet Poston of the Minnesota District Courts. Education: B.A. University of Wisconsin-Madison 2005, J.D. University of Minnesota Law School 2009 cum laude.

Daniel S. Brome: Daniel, while in law school, worked with the California Labor Commissioner, served as the Editor-in-Chief of the Berkeley Journal of Employment and Labor Law, and as Director of the Workers’ Rights Clinic. After law school, Daniel worked with a California law firm representing workers and unions in arbitrations and litigation. Daniel continues pursuing his passion for employment law at Nichols Kaster, working with the firm’s national wage and hour team out of the San Francisco office. Education: B.A. Princeton University 2005, J.D. University of California, Berkeley, School of Law 2011.

Charles A. Delbridge: Charlie is a member of Nichols Kaster’s individual rights practice group, representing employees who have been discriminated against for unlawful reasons. He has nearly a decade of experience as a civil litigator across a broad range of substantive practice areas. Charlie has been recognized as a “Minnesota Rising Star” by Super Lawyers magazine, and an “Up & Coming Attorney” by Minnesota Lawyer. He is active in professional organizations, having served as a member of the Board of Directors of both the Minnesota State Bar Association and Minnesota Continuing Legal Education. Education: B.A. University of Wisconsin-Madison 2003, J.D. William Mitchell College of Law 2006 magna cum laude.

Carl F. Engstrom: Carl began his legal career in 2010 as a law clerk with Nichols Kaster. He went on to work as a Judicial Law Clerk in Hennepin County District Court for Judge Philip Carruthers and Judge Tamara Garcia. He returned to Nichols Kaster in March 2015, and is a vital part of the firm’s growing ERISA practice. Education: B.A. Harvard College 1998, J.D. University of Minnesota Law School 2012.

Matthew A. Frank: Matt attended the University of Michigan Law School as a Clarence Darrow Scholar. At graduation, he received the Robert S. Feldman Award for outstanding work in labor and employment law. Prior to joining Nichols Kaster in 2016, Matt clerked for the Hon. Susan N. Burke in Hennepin County District Court and practiced plaintiffs’ employment law at another Twin Cities firm. Matt is part of Nichols Kaster’s individual rights team. Education: B.A. University of Colorado, Boulder 2002 summa cum laude, Philosophy Ph.D. (ABD) University of Minnesota, Twin Cities, J.D. University of Michigan Law School 2013 cum laude. Jason D. Friedman: Prior to joining Nichols Kaster in 2016, Jason practiced in Maryland and the District of Columbia, litigating wage an hour cases in state and federal courts. Jason is now a member of Nichols Kaster’s national wage and hour team, where he represents workers seeking recovery of unpaid wages, commissions, minimum wage, and overtime. Jason is also a Maryland court certified mediator. Education: B.A. Washington University in St. Louis 2009, J.D. University of Maryland Francis King Carey School of Law, 2012. Eleanor E. Frisch: Prior to joining Nichols Kaster, Eleanor served as a judicial clerk to the Hon. Roger L. Wollman of the U.S. Court of Appeals for the Eighth Circuit. Eleanor is on Nichols Kaster’s national consumer class action team, and is part of the consumer origination group. She has published articles in Bench & Bar of Minnesota and the Minnesota Law Review regarding


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whistleblower and sexual harassment claims. Education: B.A. Trinity University 2008, J.D. University of Minnesota Law School 2014 magna cum laude.

Lucas J. Kaster: Lucas received his J.D. from Marquette University Law School, where he focused his coursework on litigation. Prior to joining Nichols Kaster, Lucas was the founding attorney of Kaster Law in Milwaukee, Wisconsin where he did criminal defense work. Now, Lucas works as a part of Nichols Kaster’s individual rights team, focusing on aggressive advocacy, creative solutions and responsiveness to clients. Education: B.A. Villanova University 2004, J.D. Marquette University Law School 2011. Michelle L. Kornblit: Michelle is part of Nichols Kaster’s individual rights practice group and assists employees with a wide-range of claims, including discrimination, harassment, retaliation and whistleblower protection. Michelle has been dedicated to employee rights and challenging unfair employment practices her entire career. While in law school, Michelle interned with an Administrative Law Judge of the U.S. Equal Employment Opportunity Commission, and with the Women’s Rights Project of the American Civil Liberties Union. Prior to joining Nichols Kaster, Michelle was an associate with a leading employment litigation firm in New York, representing employees in individual, multi-party and class action cases. Education: B.A. New York University 2010 cum laude, J.D. Benjamin N. Cardozo School of Law 2014 cum laude. Jennifer K. Lee: Jenny is a member of Nichols Kaster’s consumer rights practice where she represents consumers harmed by false advertising, predatory high-interest lenders, and other illegal corporate practices. Prior to joining Nichols Kaster in 2016, Jenny worked for several years at the American Civil Liberties Union’s National Office in New York, where she litigated high-stakes constitutional and civil rights cases in courts across the country. Prior to that, she worked at the corporate law firm Cravath, Swaine & Moore LLP in New York. During law school Jenny served as Editor-in-Chief of the University of Chicago Legal Forum and interned with Planned Parenthood Federation of America, the Legal Aid Society’s Prisoners’ Rights Project, and the ACLU of Illinois. She is licensed in New York. Education: Yale University, B.A. cum laude (2006), University of Chicago Law School, J.D. with honors (2010). Brandon T. McDonough: Brandon is a member of Nichols Kaster’s ERISA litigation team where he represents current and former employees whose retirement accounts have been shortchanged due to excessive fees, imprudent investments, employer self-dealing, and general mismanagement. Prior to joining the firm, Brandon practiced plaintiffs-side consumer and civil rights law. Education: B.A. University of Chicago 2007, J.D. University of Minnesota Law School 2012 cum laude. Janet Olawsky: Janet works on individual employee rights cases with Nichols Kaster, fighting unlawful employment conduct and discrimination. Prior to joining Nichols Kaster, Janet volunteered with the Innocence Project of Minnesota and served as a judicial law clerk for the Hon. Kevin A. Lund and Hon. Robert Birnbaum in Rochester, Minnesota. Janet is also a qualified neutral under Rule 114 of the Minnesota Rules of General Practice. Education: B.A. University of St. Thomas 2007, J.D. William Mitchell College of Law 2012 magna cum laude. Robert L. Schug: Robert is part of Nichols Kaster’s national wage and hour litigation team. Robert has close to a decade of experience litigating cases through trial in both court and


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arbitration. He has represented employees in courts across the country on a variety of issues, including employee misclassification, gender discrimination, unpaid overtime, off-the-clock work, and unlawful pay deductions. Robert previously served as Director of Litigation at the Impact Fund, a nationally recognized non-profit law firm in Berkeley, California devoted to achieving social justice through large scale impact litigation. He has twice been recognized as a Rising Star by Northern California Super Lawyers. He is licensed in California and Minnesota. Education: B.S. Middle Tennessee State University 2003 summa cum laude; J.D. William Mitchell College of Law 2006 summa cum laude. Jacob T. Schutz: Jacob is a member of Nichols Kaster’s ERISA litigation team where he represents current and former employees whose retirement accounts have been shortchanged due to excessive fees, imprudent investments, employer self-dealing, and general mismanagement. In law school, Jacob was an editor of the ABA Journal of Labor & Employment Law and published an article on the association provision of the Americans with Disabilities Act. Prior to joining Nichols Kaster, he was an associate in a firm acting as general counsel for Taft-Hartley employee benefit funds. Education: B.A. University of Pennsylvania 2010, J.D. University of Minnesota Law School 2013 magna cum laude. Brittany Bachman Skemp: Brittany is part of Nichols Kaster’s national wage and hour litigation team and focuses on class and collective actions. Prior to working as an associate at Nichols Kaster, Brittany clerked for Judge Thomas J. Kalitowski and Judge Jill Flaskamp Halbrooks of the Minnesota Court of Appeals. Brittany also serves as the community service director of the New Lawyers Section of the Hennepin County Bar Association. Education: B.A. University of St. Thomas 2008, J.D. William Mitchell College of Law 2013 magna cum laude. Brock J. Specht: Brock has experience litigating complex multi-million dollar lawsuits in numerous federal courts around the country and currently works with the firm’s national consumer class action team, assisting plaintiffs who have been harmed by big business. Prior to joining the firm, Brock worked with a major Twin Cities law firm, and as a clerk for two judges on the Minnesota Court of Appeals. Brock also has worked as a Special Assistant State Public Defender, pro bono, and as an Adjunct Professor of Law at the University of St. Thomas School of Law. Education: B.A. University of Minnesota 2002, J.D. University of St. Thomas School of Law 2007 magna cum laude. Nicholas D. Thompson: Prior to joining Nichols Kaster, Nick worked on personal injury and criminal cases. Nick is part of Nichols Kaster’s individual rights team. Education: B.A. (double) University of Wisconsin 2005, J.D. University of Minnesota Law School 2008.


EXHIBIT 5


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he supervises student attorneys in providing legal assistance to low wage workers.

Matt is licensed in both California and Minnesota.

While attending the University of Minnesota Law School, Matt was a staff member

and Managing Tribute Editor of the University of Minnesota Journal of Global Trade.

He also participated in the Child Advocacy Clinic, representing the interests of

children as a student attorney in both Family and Juvenile Court.

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Matthew C. Helland PartnerPhone: 415.277.7239

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Page 1 of 3Matthew C. Helland | Nichols Kaster, PLLP

4/25/2017http://www.nka.com/lawyer/matthew-c-helland/


EducationJ.D. University of Minnesota Law School, 2005, magna cum laude

B.A. Rhodes College, 2002, magna cum laude

Publications / Speaking Engagements"Recent Developments Under The WARN Act and EPPA." American Bar Association, Section of Labor and Employment Law, Playa del Carmen, Mexico, 2017.

Guest Plaintiffs’ Counsel Panelist for “Do the Math: Calculating Exposure and Damages in Wage and Hour Cases.” Association of Defense Counsel of Northern California and Nevada, San Francisco, CA, 2017.

Moderator for “Demystifying Federal Court Practice.” CELA 29th Annual Employment Law Conference, Costa Mesa, CA, 2016.

Panelist for “Views from the Plaintiffs’ Bar.” American Conference Institute’s 27th National Forum on Wage & Hour Claims and Class Actions, New York, NY, 2016.

Panelist for “Rule 26: Friend or Foe?” CELA Webinar, 2016.

Panelist for “Reviving Hybrid FLSA Collective and Class Actions.” CELA 12th Annual Advanced Wage and Hour Seminar, Oakland, CA, 2016.

Panelist for “Calling Their Bluff: Using Arbitration to Gain the Upper Hand.” Impact Fund 14th Annual Class Action Conference, San Francisco, CA, 2016.

Panelist for “Arbitration of Wage & Hour Claims.” American Bar Association, Ninth Annual Section of Labor and Employment Law Conference, Philadelphia, PA, 2015.

Panelist for “It’s 1984 All Over Again: Workplace Monitoring in An Age of Endless Innovation.” American Bar Association, National Symposium on Technology in Labor and Employment Law, San Francisco, CA, 2015.

"Recent Developments Under The WARN Act and EPPA." American Bar Association, Section of Labor and Employment Law, Puerto Vallarta, Mexico, 2015.

Panelist for “Update on Wage and Hour Arbitration 2015: Arbitrating Wage & Hour Cases Given the Changing Legal Landscape and Guidance for Employers Considering Mandatory Arbitration Agreements with Class and Collective Action Waivers.” American Conference Institute’s 23rd National Forum on Wage & Hour Claims and Class Actions, Miami, FL, 2015.

Panelist for ”Views from The Plaintiffs’ Bar: Adapting Your Strategies to New and Innovative Techniques and Tactics.” American Conference Institute’s 21st National Forum on Wage & Hour Claims and Class Actions, New York, New York, 2014.

"Recent Developments Under The WARN Act and EPPA." American Bar Association, Section of Labor and Employment Law, Miami Beach, FL, 2014.

"Recent Developments Under The WARN Act and EPPA." American Bar Association, Section of Labor and Employment Law, Los Cabos, Mexico, 2013.

Panelist for “Wage and Hour 101.” Annual Meeting, Labor and Employment Law Section of The State Bar of California, Newport Beach, California, 2012.

Panelist for "Litigating FLSA Collective Actions." Bridgeport Seventh Annual Wage & Hour Litigation Conference, San Francisco, California, 2011.

"Recent Developments Under The WARN Act and EPPA." American Bar Association, Section of Labor and Employment Law, Puerto Vallarta, Mexico, 2011.

"Economically Litigating Multiple Plaintiff Actions." California Employment Lawyers Association, Advanced Wage and Hour Seminar, Los Angeles, California, 2011.

"Recent Developments Under The WARN Act and EPPA." American Bar Association, Section of Labor and Employment Law, Los Cabos, Mexico, 2009.

"Recent Developments Under The WARN Act and EPPA." American Bar Association, Section of Labor and Employment Law, Jamaica, 2008.

Selected ResultsArbitration Victories: Roper v. Federal National Mortgage Association (N.D.Ga.) (Confirming an award of $15,377.20 to Mr. Roper, an underwriter who was




© 2011 Nichols Kaster, PLLP

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misclassified as exempt from overtime, as well as an award of $128,022.72 in attorneys’ fees and costs); Rhodes v. CashCall, Inc. (JAMS, Orange County) (Finding that CashCall misclassified Mr. Rhodes, a loan processor, as exempt from overtime, and awarding $30,000 in damages and $88,179 in attorneys’ fees and costs); Garcia v. CashCall, Inc. (JAMS, Orange County) (Finding that CashCall misclassified Mr. Garcia, a mortgage underwriter, as exempt from overtime, and awarding $20,000 in damages and $98,709 in attorneys’ fees and costs); Good v. CashCall, Inc. (JAMS, Orange County) (Finding that CashCall misclassified Ms. Good, a lead mortgage underwriter, as exempt from overtime, and awarding $43,631 in unpaid overtime and $50,627.49 in attorneys’ fees and costs); Green v. CashCall, Inc. (JAMS, Orange County) (finding that CashCall misclassified Ms. Green, a loan processor, as exempt from overtime, and awarding $15,067.72 in damages and $54,165.50 in attorneys’ fees and costs).

Orders Compelling Defendants to Individual Arbitration: Aguilera v. Prospect Mortgage, LLC, 2013 WL 4779179 (C.D. Cal. 2013) (Ordering Defendant to individual arbitration in compliance with its own arbitration agreement, and finding that claimants did not waive their right to arbitrate by first participating in a collective action which was later decertified); Aldrich v. Prospect Mortgage, LLC,2013 WL 5506676 (N.D. Cal. 2013) (same).

Wage and Hour Class and Collective Certification: Cervantez v. Celestica Corp.,253 F.R.D. 562 (C.D. Cal. 2008) (certifying Rule 23 class of manufacturing workers for unpaid time spent in employer’s security lines);Villarreal v. Caremark LLC, 2014 WL 7184014 (D. Ariz. 2014) (granting conditional certification under the FLSA); Goodwin v. Citywide Home Loans, Inc., 2014 WL 7174223 (C.D. Cal. 2014) (same); Williams v. U.S. Bank Nat. Ass'n, 2013 WL 3119055 (E.D. Cal. June 20, 2013) (same); Bollinger v. Residential Capital, LLC, 761 F. Supp. 2d 1114, 1115 (W.D. Wash. 2011) (granting conditional certification under the FLSA); Gee v. Suntrust Mortg., Inc., 2011 WL 722111 (N.D. Cal. Feb. 18, 2011) (same); Lindberg v. UHS of Lakeside, LLC, 761 F. Supp. 2d 752 (W.D. Tenn. 2011) (same); Gil v. Solectron Corp., 2009 WL 88346 (N.D. Cal. 2009) (same); Misra v. Decision One Mortg. Co., LLC, 673 F. Supp. 2d 987 (C.D. Cal. 2008) (same); Wong v. HSBC Mortgage Corp. (USA), 2008 WL 753889 (N.D. Cal. 2008).

Employer Liability For Wages: Cervantez v. Celestica Corp., 618 F. Supp. 2d 1208 (C.D. Cal. 2009) (finding that manufacturing company was as an employer under California law of temporary employees employed in its facility).

FLSA Exemption Defenses: Bollinger v. Residential Capital, LLC, 863 F. Supp. 2d 1041 (W.D. Wash. 2012) (granting plaintiffs’ motion for summary judgment on the administrative exemption and the good faith defense); Wong v. HSBC Mortgage Corporation, et al., 2010 WL 3833661 (N.D. Cal., 2010) (September 29, 2010) (granting plaintiffs’ motion for summary judgment on the administrative exemption, retail sales and services exemption, and professional exemption).

Titles / Awards / MembershipsNamed to the Rising Stars list, Northern California Super Lawyers, and San Francisco Magazine 2012-2016

Legal Aid Society – Employment Law Center Volunteer Supervising Attorney

American Bar Association Member

California Employment Lawyers Association Member

National Employment Lawyers Association Member




EXHIBIT 6


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EducationJ.D. University of Minnesota Law School, 2007, cum laude

B.A. George Washington University, 2002, magna cum laude

Publications / Speaking Engagements“Mediating and Resolving Class and Collective Claims: Getting from ‘No’ to ‘Si,’” American Bar Association, Employment Rights and Responsibilities (ERR) Committee Midwinter Meeting, Puerto Vallarta, 2017.

“To Move or Not to Move: That is the Question,” National Employment Lawyers Association Summary Judgment Conference, Cincinnati, OH, October 2016.

Contributing Author to the ABA Section of Labor and Employment Law, The Fair Labor Standards Act Treatise: Midwinter Supplement, 2011-2016.

“FLSA Settlements: From a Judge's, Plaintiff's & Defendant's Perspective,” Hennepin County Bar Association CLE, Minneapolis, MN, 2015.

“Authentication and Admissibility of Evidence,” National Business Institute Video Webcast, 2015.

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© 2011 Nichols Kaster, PLLP

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. Read full Disclaimer.

Privacy Policy | Contact Us

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“Federal E-Discovery and Evidence,” National Business Institute Video Webcast, 2015.

“Discovery and Applying the Rules of Evidence in Federal Court,” National Business Institute Video Webcast, 2014.

Panel Speaker at Employment and Labor Law Association Event, University of St. Thomas Law School, 2012-2013.

Panel Speaker at Employment Practitioner Event, University of Minnesota, 2009.

Panel Speaker at the University of Minnesota Civil Rights Conference, 2007.

Titles / Awards / MembershipsNamed to The Top Women Attorneys in Minnesota List, 2016

Named to the Rising Stars list, Minnesota Super Lawyers, Minneapolis/St. Paul Magazine, and Twin Cities Business, 2014 - 2016

Minnesota Justice Foundation, Board Member

FLSA Discovery Protocols Committee Member

American Bar Association Member

Federal Bar Association Minnesota Chapter Member

Minnesota State Bar Association – Labor and Employment Law Section Member

National Employment Lawyers Association (NELA) Member

Outstanding Achievement Award for Employment Discrimination Law, Minnesota State Bar Association, 2007

Dorothy O. Lareau Award, University of Minnesota, 2005

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