Opinion
Case No. EDCV11-756-CJC (RNBx)
11-28-2011
NIKOLA LOVIG, on behalf of himself and all others similarly situated, Plaintiff, v. SEARS, ROEBUCK & CO., a New York corporation; and DOES 1-50, inclusive, Defendants.
ATTORNEYS FOR DEFENDANT SEARS, ROEBUCK & CO. Lynne C. Hermle (SBN 99779) Joseph C. Liburt (SBN 155507) ORRICK, HERRINGTON & SUTCLIFFE LLP Jinnifer D. Pitcher (SBN 252880) ORRICK, HERRINGTON & SUTCLIFFE LLP Thomas G. Abram VEDDER PRICE PC (Appearing pro hac vice) ADDITIONAL ATTORNEYS FOR PLAINTIFF NIKOLA LOVIG David Spivak (SBN 179684) THE SPIVAK LAW FIRM Louis Benowitz (SBN 262300) LAW OFFICES OF LOUIS BENOWITZ
Shaun Setareh (SBN 204514)
Hayley Schwartzkopf (SBN 265131)
LAW OFFICES OF SHAUN SETAREH
Attorneys for Plaintiff
NIKOLA LOVIG
(Attorneys for Defendant & Additional Attorneys for Plaintiff on Following Page)
PROTECTIVE ORDER RE STIPULATION FOR DISCOVERY
OF PUTATIVE CLASS MEMBER CONTACT INFORMATION
Before Magistrate Judge Robert N. Block
ATTORNEYS FOR DEFENDANT SEARS, ROEBUCK & CO.
Lynne C. Hermle (SBN 99779)
Joseph C. Liburt (SBN 155507)
ORRICK, HERRINGTON & SUTCLIFFE LLP
Jinnifer D. Pitcher (SBN 252880)
ORRICK, HERRINGTON & SUTCLIFFE LLP
Thomas G. Abram
VEDDER PRICE PC
(Appearing pro hac vice)
ADDITIONAL ATTORNEYS FOR PLAINTIFF NIKOLA LOVIG
David Spivak (SBN 179684)
THE SPIVAK LAW FIRM
Louis Benowitz (SBN 262300)
LAW OFFICES OF LOUIS BENOWITZ
Pursuant to the stipulation of the parties and good cause appearing therefore, IT IS HEREBY ORDERED THAT:
1. Defendant and Plaintiff will arrange for their respective counsel to meet in defense counsel's Los Angeles Office at Orrick, Herrington and Sutcliffe LLP. Defendant will show Plaintiff a list with the unique employee identification numbers of the individuals who are members of both the Proposed Technician Class (i.e., individuals employed by Defendant in California at anytime between April 8, 2007 to the present who held the position of "Technician") and the Proposed Premium Wage Rate Class (i.e., individuals employed by Defendant in California at anytime between April 8, 2007 to the present who received premium wages in lieu of meal and/or rest periods and also a commission or bonus (as defined by Plaintiff in his September 6, 2011 email)). Plaintiff's counsel will mark the list to select a sample of 500 individuals. Plaintiff's counsel will not retain the hard copy lists, but defense counsel will copy the lists and provide it to the Administrator (as defined below). Collectively the individuals selected by Plaintiff will be referred to as "the Recipient Employees."
2. The parties shall select a mutually agreeable neutral third-party as an administrator ("Administrator"). The Administrator shall mail the notice attached as Exhibit "A," enclosing the postcard attached as Exhibit "B," to all of the Recipient Employees. The Administrator will also receive and track all requests of the Recipient Employees to opt out from having their name, address and telephone number provided to Plaintiff's counsel. The Administrator may also perform other incidental tasks as mutually agreed upon by both Parties. Plaintiff and Defendant shall each pay half, respectively, of all fees and costs charged by the Administrator pursuant to this Stipulation. The Parties further agree to use reasonable efforts to minimize the Administrator's fees and costs pursuant to this Stipulation.
3. If a Recipient Employee identified above does not want his/her name, address, and telephone number to be provided to Plaintiff's counsel, he/she may do one of the following within thirty (30) days after mailing Exhibits "A" and "B": (a) sign and return the pre-paid postcard attached as Exhibit "B" to the Administrator; or (b) contact the Administrator and state that he/she does not want his/her personal contact information shared with Plaintiff's attorneys. Each Recipient Employee who notifies the Administrator by one of the two procedures outlined above that he/she does not want his/her personal contact information shared with Plaintiff's attorneys shall be referred to hereafter as an "Opt Out Employee" while the others shall be referred to as "Non-Opt Out Employees."
4. Thirty-five (35) days after mailing Exhibits "A" and "B," the Administrator shall provide both parties a list containing all of the Non-Opt Out Employees, including names, last known addresses and telephone numbers of all such Non-Opt Out Employees.
5. Plaintiff's counsel may contact the Non-Opt Outs to discover whether they have knowledge of the Defendant's alleged violations of the California Labor Code and California Business & Professions Code as alleged in Plaintiff's Second Amended Complaint. Plaintiff's counsel shall inform Non-Opt Outs that they are under no obligation to speak with Plaintiff's counsel or agents; whether a Non-Opt Out chooses to speak with Plaintiff's counsel or agents shall be entirely voluntary and there shall be no retaliation for refusing to speak with Plaintiff's counsel or agents.
6. Plaintiff (including his counsel and agents) shall keep any contact information discovered by this process as "Confidential" as defined and under the terms of the parties' Stipulation re: Use of Confidential and Private Information and Court's protective order. In addition, Plaintiff shall only use such contact information for purposes of this litigation, and shall destroy the contact information and all copies thereof at the conclusion of this litigation.
IT IS SO ORDERED.
The Honorable Robert N. Block, United
States Magistrate Judge
EXHIBIT A
IMPORTANT NOTICE REGARDING YOUR PERSONAL CONTACT INFORMATION
It is important that you read this notice. Unless you take action as described below, your personal contact information will be disclosed to the attorneys for Plaintiff in a class action lawsuit against Sears, Roebuck and Co. ("Defendant").
Who is receiving this notice?
This notice is being sent to a sample of individuals employed be Defendant at anytime between April 8, 2007 to the present in California who either held the position of "Technician" or received premium wages in lieu of meal and/or rest periods and specified commissions or bonuses (collectively "the Recipient Employees").
What is this case about?
A lawsuit (Nikola Lovig v. Sears, Roebuck & Co., case no. EDCV11-756-CJC (RNBx)) has been filed in the United States District Court for the Central District of California by Plaintiff Nikola Lovig on behalf of himself and allegedly on behalf of other similarly situated employees of Defendant. This is not a lawsuit against you, and you are not being sued. Plaintiff makes claims against Defendant among other things for failure to pay premium wages in lieu of meal and/or rest periods at legally required rates, failure to issue accurate and complete wage statements, and failure to pay all earned wages at time of discharge. If you are a Recipient Employee, you may be a member of the proposed class. The Court has not yet determined whether or not the lawsuit should be allowed to proceed as a class action. The Defendant denies the claims being made in the lawsuit. It is the Defendant's position that it has properly and timely compensated all of its employees and issued accurate and complete wage statements.
Why am I receiving this notice?
Plaintiff's attorneys would like to have your name, address and telephone number so they may contact you regarding Plaintiff's allegations. The parties' attorneys have agreed to send this notice to you so that you can decide whether to disclose your name and contact information to Plaintiff's attorneys. You may choose to exclude yourself from discovery and not to provide your name and contact information to Plaintiff's attorneys on the grounds of privacy.
How do I exclude myself from discovery and from having my name and personal contact information withheld from Plaintiff's attorneys?
If you do not want your personal contact information disclosed to Plaintiff's attorneys, you must do one of the following by [30 (Thirty) Days from Mailing]:
1. Sign and return the enclosed pre-paid postcard to Lovig v. Sears Administrator, c/o [Administrator Name and mailing address]; or
2. Contact the Administrator that states that you do not want your personal contact information shared with Plaintiff's attorneys.
What are my rights?
It is your right to withhold your name and contact information from Plaintiff's attorneys on the grounds of privacy. Your decision to withhold your name and contact information at this time will have no impact on any right you may have to participate in this case in the event it is later certified as a class action. Although you are not required to take any action or contact anyone, you have the right to contact the Plaintiff's attorneys or Defendant's attorneys directly:
Plaintiff's Attorneys
Shaun Setareh (SBN 204514)
setarehlaw@sbcglobal.net
Hayley Schwartzkopf (SBN 265131)
hayley.setarehlaw@sbcglobal.net
LAW OFFICES OF SHAUN SETAREH
Defendant's Attorneys
Lynne C. Hermle (SBN 99779)
lchermle@orrick.com
Joseph C. Liburt (SBN 155507)
jliburt@orrick.com
ORRICK, HERRINGTON & SUTCLIFFE LLP
9454 Wilshire Blvd, Penthouse Suite 1
Beverly Hills, California 90212
Tel: (310) 888-7771
Fax: (310) 888-0109
David Spivak (SBN 179684)
david@spivaklaw.com
THE SPIVAK LAW FIRM
9454 Wilshire Boulevard, Suite 303
Beverly Hills, California 90212
Telephone: (310) 499-4730
Facsimile: (310) 499-4739
Louis Benowitz (SBN 262300)
louis@benowitzlaw.com
LAW OFFICES OF LOUIS BENOWITZ
9454 Wilshire Blvd., Penthouse Suite 1A
Tel: (310) 888-7771
Fax: (310) 888-0109
1000 Marsh Road
Menlo Park, California 94025
Telephone: (650) 614-7400
Facsimile: (650) 614-7401
Jinnifer D. Pitcher (SBN 252880)
jpitcher@orrick.com
ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall Suite 300
Sacramento, CA 95814-4497
Telephone: (916) 447-9200
Facsimile: (916) 329-4900
Thomas G. Abram
tabram@vedderprice.com
VEDDER PRICE PC
222 North La Salle Street Suite 2600
Chicago, IL 60601
Telephone: (312) 609-7500
Facsimile: (312) 609-5005
(Appearing pro hac vice)
You are under no obligation to provide information to or discuss this lawsuit with the Plaintiff s attorneys or thei agents or Defendant's attorneys or agents. NO ONE INVOLVED IN THIS LAWSUIT MAY RETALIATE AGAINST YOU IN ANY WAY FOR PROVIDING OR REFUSING TO PROVIDE ANY INFORMATION. Please do not contact the Court with inquiries. The Court does not endorse any of the statements contained in this notice. The Court has not made any decisions as to the merits of this case.
EXHIBIT B
Nikola Lovig v. Sears, Roebuck & Co., case no. EDCV11-756-CJC (RNBx)
Discovery Exclusion Form
Name:
Address:
Phone number:
email address:
[ ] I wish to be excluded from discovery. I do not want my personal contact information disclosed to Plaintiff's attorneys in the above-referenced case.
________________
Signature
RETURN THIS FORM TO:
LOVIG V. SEARS ADMINISTRATOR
c/o [Administrator Name]
[Mailing Address]