united states district court tampa division robert … · 2018-02-13 · united states district...

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JAMES STAHL, JOSE A. GONZALEZ, LEONIDES GONZALEZ, ART FULFORD, JOHN S. MILLER, CARL SHANE, HECTOR CUMBALAZA, CARLOS INCLAN, GARY CAMERON, HECTOR VASQUEZ, JERRY THOMPSON, KENNETH WILLIS, RICHARD HAMILTON, KEITH SIMPSON, ROBERT ROWLAND, BRADLEY COLLINS, EDDIE ARMOUR, BRANDON PARISH, JERMAINE DAVENPORT, JOHN HOLLIS, and JEFFREY SATALA, individually and on behalf of others similarly situated, Plaintiffs, v. Civil Case No. 8:05-CV-01265-JDW-TGW COLLECTIVE AND CLASS ACTION MASTEC, INC., and MASTEC NORTH AMERICA, INC. d/b/a ADVANCED TECHNOLOGIES, Defendants. _____________________________________/

DECLARATION OF SAM J. SMITH IN SUPPORT OF PLAINTIFFS’ CONSENTED MOTION REQUESTING APPROVAL OF SETTLEMENT

AGREEMENT AND ENTRY OF AN ORDER OF DISMISSAL

I, Sam J. Smith, declare and state as follows:

1. The statements set forth in this declaration are made of my own personal

knowledge and if called as a witness, I could and would testify competently to the matters

stated below.

2. I am the managing partner of the law firm of Burr & Smith, LLP in Tampa,

Florida. I am lead counsel for the named plaintiffs in the above-captioned action. Burr &

Smith, along with our co-counsel The Linesch Firm, P.A., Goldstein, Demchak, Baller,

Borgen & Dardarian, P.C. and Robert S. Norell, P.A. have extensive experience litigating

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Case 8:05-cv-01265-JDW-TGW Document 128 Filed 11/21/07 of 31 PageID 1371

collective actions under the Fair Labor Standards Act (“FLSA”) and wage and hour class

actions. A copy of my resume and the resume of David Borgen are attached to this

Declaration. The Declarations of David Linesch and Robert S. Norell attesting to their

litigation experience are filed contemporaneously herewith.

3. I have been personally involved in conducting the negotiations of the

settlement of this matter, in reviewing documents produced by the plaintiffs and the

defendants, interviewing the plaintiffs in this case, conducting interviews of current and

former managers of the defendants, and analyzing the potential back pay damages claimed by

the plaintiffs.

4. On July 7, 2005, Plaintiffs James Stahl, Jose A. Gonzalez, Leo Gonzalez, Art

Fulford, John S. Miller, Carl Shane, Hector Cumbalaza, Carlos Inclan, Gary Cameron,

Hector Vasquez and Jerry Thompson filed a collection action complaint in the Middle

District of Florida, Tampa Division, asserting violations of the Fair Labor Standards Act 29

U.S.C. § 201 et seq. on behalf of themselves and other satellite service and repair technicians

who were similarly situated (“SSTs”) against MasTec, Inc. The Complaint alleged

Defendants failed to pay SSTs for all hours worked over forty in a work week for the benefit

of MasTec as required under the FLSA. The Complaint sought relief for overtime

compensation, in addition to liquidated damages, pre-judgment interest, reasonable attorney’s

fees and costs.

5. On August 11, 2005, MasTec, Inc. filed an answer to the complaint. Dkt. 4.

In that answer, MasTec, Inc. identified MasTec North America, Inc. as the appropriate

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employer of the plaintiffs. Throughout this declaration MasTec, Inc. and MasTec North

America, Inc. shall be jointly referred to as “MasTec.”

6. On August 30, 2005, my firm entered an appearance on behalf of the

plaintiffs. Along with our co-counsel David J. Linesch, we began interviewing numerous

SSTs who were employed by MasTec in offices located in Florida, Georgia, Maryland, New

Jersey, New Mexico, North Carolina, South Carolina, Texas, and Virginia. Our

investigation determined that MasTec paid SSTs in these states on an hourly basis during

training periods and thereafter paid SSTs on a piece-rate basis to perform installation and

service repair jobs under its contract with DirecTV. We obtained a job description that was

applicable to all SSTs. During our investigation, we interviewed approximately 350

plaintiffs and witnesses (including, but not limited to former regional operation managers,

office managers, field supervisors, warehouse technicians, warehouse managers, data entry

clerks, quality control technicians, and payroll personnel). We determined that in addition to

the overtime claims alleged in the first complaint, SSTs had common potential claims for

failure to pay wages, including liquidated damages, missed meal, rest and break periods,

travel time, deductions, charge backs, penalties, fines, interest, quantum meruit, unjust

enrichment, failure to reimburse for business-related expenses, failure to maintain records,

failure to furnish wage records, failure to enforce company payroll policies, claims that could

be brought alleging MasTec retaliated against them for complaining about their wages or for

asserting wage-related claims, and other wage related claims.

7. During our investigation we also conducted interviews of current or former

residential cable technicians responsible for consumer cable installation employed by

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MasTec’s Broadband division in California (hereinafter referred to as “RCTs”). Like the

SSTs, we determined that the RCTs had common potential claims for liquidated damages,

missed meal, rest and break periods, travel time, deductions, charge backs, penalties, fines,

interest, quantum meruit, unjust enrichment, failure to reimburse for business-related

expenses, failure to maintain records, failure to furnish wage records, failure to enforce

company payroll policies, and claims that could be brought alleging MasTec retaliated

against them for complaining about their wages or for asserting wage-related claims and

other wage related claims. In addition, three RCT supervisors, Jorge Chavez, Erik Gastelum,

and John Pacheco, sought similar claims based on their assertion that they were misclassified

as exempt supervisors by MasTec. On November 3, 2006, David Borgen of Goldstein,

Demchak, Baller, Borgen & Dardarian, P.C. entered an appearance on behalf of the

plaintiffs.

8. Shortly after this case was filed, on September 13, 2005, another MasTec SST

filed Stabenow v. MasTec, Inc., 05-CV-22491, in the Southern District of Florida. Stabenow

was also a proposed collective action alleging violations by MasTec of the overtime and

record-keeping provisions of the FLSA similar to those alleged in Stahl. No additional

plaintiffs opted into Stabenow. On February 9, 2006, Stabenow through his counsel, Robert

S. Norell, filed an unopposed motion to dismiss his claim without prejudice. That motion

was granted on February 16, 2006. Stabenow’s claims are now included in this case and

Stabenow’s counsel, Robert S. Norell, has filed a notice of appearance on behalf of the

plaintiffs.

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9. On September 16, 2005, based on a joint motion filed by the parties, the Court

permitted the parties to conduct early mediation before an experienced class action mediator,

Hunter R. Hughes, III, Esq., and stayed further litigation during the mediation. See, Dkt. 38.

10. During the next twelve months, the parties conducted four face-to-face

mediations and numerous telephonic mediations and negotiations under the direction of

Mediator Hughes. Prior to and during the first face-to-face mediation held on October 10,

2005, the plaintiffs presented MasTec with a detailed recitation of their FLSA minimum

wage and overtime claims and previewed the state law common law and statutory claims.

During this mediation, the parties agreed to enter into a “Structured Settlement Agreement,”

which detailed the process that the parties would use to continue the mediation. First, the

plaintiffs agreed to provide MasTec with detailed sworn declarations from fifteen of

plaintiffs’ witnesses that supported their asserted claims and MasTec agreed to provide

payroll and personnel information for these declarants. Second, MasTec was given the

opportunity to interview plaintiffs’ declarants. Third, MasTec provided plaintiffs’ counsel

with extensive payroll records of a sample of more than 100 SSTs who worked in Florida,

Georgia, Maryland, New Jersey, New Mexico, North Carolina, South Carolina, Texas, and

Virginia. These records contained information regarding the hours recorded by MasTec on a

daily basis for each SST, the piece rate payments received, the overtime compensation paid

and the deductions withheld by MasTec. In addition, MasTec produced payroll records of

the RCTs. Finally, the plaintiffs were given the opportunity to interview three MasTec

company representatives who were able to explain in detail the methodologies used by

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MasTec to compensate the RCTs and SSTs, including minimum wage payments, overtime

compensation, and payroll deductions.

11. After this information was exchanged, on December 19, 2005, MasTec

provided plaintiffs with a detailed analysis of its alleged defense that the SSTs were exempt

pursuant to the Motor Carrier Act exemption found under Section 13(b)(1) of the FLSA

because the SSTs were delivering and installing satellite equipment that was shipped to

MasTec warehouses from out-of-state locations with the intent that this equipment be

delivered by SSTs to customers for intrastate delivery. Plaintiffs interviewed Mark

Retherford, MasTec’s Vice President of its Advanced Technologies Division, who detailed

the methodologies used to order, ship, receive, and install satellite equipment. Plaintiffs’

counsel also reviewed detailed contracts between MasTec and DirecTV that specified the

shipping and installing arrangements for the satellite equipment.

12. On February 18, 2006, in preparation for the next face-to-face mediation,

which was held on February 23, 2006, the plaintiffs provided MasTec with a detailed

response to MasTec’s Section 13(b)(1) defense. The plaintiffs’ mediation statement also

detailed the state law claims of the SSTs and RCTs. During this mediation, the parties

agreed to continue the mediation and expand the review of data to include all of the

electronic payroll information available for SSTs.

13. After this mediation, MasTec produced detailed payroll information and day-

to-day job completion data. Each party hired nationally-recognized expert witnesses to

evaluate this data. MasTec’s counsel also provided a detailed response to the state law

claims of the SSTs and RCTs. The parties’ next face-to-face mediation occurred on June 2,

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2006. Prior to this mediation, the parties exchanged detailed back pay calculations that were

based on the electronic data available. During the mediation, plaintiffs’ counsel presented a

detailed and comprehensive analysis of the case. After this mediation, the parties agreed to

further refine the damage models by adding an analysis of hand-written work force daily

reports and DirecTV call center data for a sample of forty-four technicians.

14. Work force reports and call center data were used to estimate the average

unreported hours worked per day by SSTs. In mid-July, MasTec’s counsel presented the

results of this model and the parties agreed to expand its use to include call center data for all

SSTs who worked between January 1, 2004 and May 26, 2006. On August 24, 2006,

MasTec presented the results of this model. The model provided the parties with the ability

to estimate unreported hours worked per day and per week. It also provided for an estimate

of the alleged improper deductions under state law and minimum wage claims. Throughout

August and September 2006, the parties continued to work with this damage model.

15. On September 20, 2006, the parties conducted a direct negotiation that

Plaintiffs’ counsel believed resulted in an agreement to resolve the claims of the named and

opt-in plaintiffs and the claims of the putative class members employed through May 26,

2006. On October 2, 2006, this agreement was formalized in seven-page document entitled

Summary of Key Terms of Settlement Agreement. From October 2, 2006 until December

20, 2006, the parties attempted to finalize the settlement; however, the parties were unable to

reach agreement on the final terms of settlement and Plaintiffs’ counsel were forced to file a

motion to enforce the Summary of Key Terms of Settlement Agreement.

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16. Between December 20, 2006 and October 22, 2007, significant litigation was

conducted by the parties regarding the enforceability of the Summary of Key Terms of

Settlement Agreement. On September 28, 2007, the Court ordered that an evidentiary

hearing should be conduced to determine “(1) the allocation of the settlement fund and (2)

the confidentiality provision.” Dkt. 119. On the eve of this evidentiary hearing, the parties

were able to resolve all outstanding issues and notified the Court that the settlement was

complete subject to MasTec’s board approving the settlement. On October 22, 2007,

MasTec’s board approved the settlement.

17. Pursuant to the October 22, 2007 settlement the parties resolved this case

subject to Court approval for a Maximum Gross Settlement Amount of $12.6 million. The

parties reached agreement on the Maximum Gross Settlement Amount utilizing the damage

model developed by the parties through extensive mediation efforts. The settlement

agreement was the result of arms-length negotiations with the assistance of an experienced

mediator over an approximate twelve month period and approximately twelve months of

litigation and negotiations over the Summary of Key Terms of Settlement Agreement. The

parties’ damage models were used to create an estimate of the value of an SST claim during

three periods (the period prior to August 10, 2005 when the Motor Carrier Act presented a

defense to the overtime claims, the period between August 11, 2005 and May 26, 2006, and

the period between May 27, 2006 and September 28, 2007, when MasTec took additional

steps to address the alleged overtime and deduction claims at issue here). One half of the

amount potentially recoverable by class members represents liquidated damages. RCTs

received compensation for minimum wage, overtime compensation, missed meal, break and

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rest periods, penalties, and unfair competition claims throughout the period from October 10,

2001 to December 31, 2005, when the company ceased operating the residential cable

Broadband Division in California. In addition to the potential Maximum Gross Settlement

Amount to be paid, MasTec agreed to pay the employer share of FICA and FUTA taxes on

all back pay awards and will pay the expenses of a Settlement Administrator who will

provide the putative class and potential opt in plaintiffs with notice of settlement, collect

claim forms, and prepare damage checks, W-2 forms, and 1099 forms for the plaintiffs and

opt-in plaintiffs.

18. The Maximum Gross Settlement Amount is inclusive of attorneys’ fees and

costs. It represents the maximum gross amount to be paid to named plaintiffs, opt-in

plaintiffs, and putative class members and plaintiffs’ counsel in the event all eligible class

members elect to participate in the settlement and timely execute the necessary claim forms

and IRS W-9 forms. Any portion of the Maximum Gross Settlement Amount that remains

after settlement payments, service payments, service payments, and the payment of

attorneys’ fees, expenses and costs are made to authorized claimants and Class Counsel shall

be retained by MasTec and remain its sole and exclusive property.

19. In my opinion, the Maximum Gross Settlement Amount agreed to in this case

and the individual settlement amounts to be paid to the plaintiffs, opt-in plaintiffs, and

putative class represent a fair and reasonable settlement of the claims settled herein. The

Gross Settlement Amount was arrived at after the parties created damage models for SSTs

and RCTs. Extensive data analysis was used to create these models that considered recorded

hours for training work and piece work, potential unrecorded overtime hours, unpaid

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minimum wage, and deductions that may have violated the FLSA or state laws. The parties’

settlement also considered call center data that showed the time of the last job completed by

an SST in a day and assumptions regarding start times and lunch breaks. The parties also

came to an agreement regarding what types of alleged deductions would be recoverable

under state laws. Finally, the settlement was based on the parties’ agreement that for

purposes of settlement the MCA exemption precludes any overtime claims against MasTec

prior to August 10, 2005, except in those states that do not recognize the MCA defense.

20. The concession that the MCA applies to the FLSA overtime claims in this

case prior to August 10, 2005 was reasonable for the plaintiffs to make in order to reach

settlement. Under Section 13(b)(1) of the FLSA, an exemption exists from the overtime pay

requirements for “motor carriers engaged in interstate commerce.” The critical question in

determining the applicability of the MCA exemption is whether a driver is transporting goods

that form a “practical continuity of movement” in interstate commerce. Although the MCA

exemption is narrowly construed, the Department of Transportation utilizes a broad test to

determine the “fixed and persisting intent” of a shipper that merchandize continues in

interstate commerce when moving goods intrastate. See Motor Carrier Interstate

Transportation – From Out-Of-State Through Warehouses to Points in Same State, 57 Fed.

Reg. 19812 (May 8, 1992). In addition, the Department of Labor has specifically applied this

broad test in its January 11, 2005 opinion letter. See FLSA 2005-10, DOL Opinion Letter

(Jan. 11, 2005). This broad approach has been applied to satellite dish installers like the

SSTs here. See Mussara v. Digital Dish, Inc. 454 F. Supp 692 (S.D. Ohio 2006), Kautsch v.

Premier Communications, 502 F. Supp 2d 1007 (W.D. Mo. 2006); Dell ‘Orfano v. Ikon,

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2006 U.S. Dist. LEXIS 61563 (M.D. Ga. August 29, 2006). Prior to Settlement, MasTec

indicated that it would file a motion for summary judgment regarding its MCA defense if the

case continued in litigation. While plaintiffs may have been able to prevail under these broad

guidelines, a significant risk of losing this issue existed such that it was prudent to concede

that the MCA applies to pre-August 2005 claims since the other claims that were settled

provide an appropriate offset to this agreement.

21. In addition, the settlement provided for recovery of overtime claims after

August 10, 2005. On August 10, 2005, Congress passed and President Bush signed the Safe,

Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-

LU), which amended the definition of “motor private carrier” found in 49 U.S.C. § 13105, to

confine “motor private carrier” to carriers transporting property by “commercial motor

vehicle (as defined in [49 U.S.C.] section 31132).” Revised section 13102 defines “motor

private carrier” as a person, other than a motor carrier, transporting property by commercial

motor vehicle, as defined in 49 U.S.C. § 31132. In Section 31132(A), a commercial motor

vehicle is now defined as a vehicle with a gross vehicle weight of at least 10,001 lbs. This

change to the definition of “motor private carrier” to include only vehicles weighing excess

of 10,001 lbs. limits the power of the DOT over motor private carriers and has limited the

scope of the FLSA’s MCA exemption. Therefore, pursuant to the August 10, 2005

amendment to the MCA, there is no argument that SSTs are exempt from the overtime

requirements under the FLSA by way of the MCA. However, the overtime claims of the

SSTs who were employed after August 10, 2005 were still vulnerable because Congress has

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considered changing or limiting the SAFETEA-LU Act amendment to the Motor Carrier Act.

See Exhibit 1.

22. In addition, California RCTs were able to recover overtime compensation

prior to August 10, 2005 pursuant to state law.

23. Besides the application of the MCA to the FLSA overtime claims, this case

presented numerous hotly contested issues, including whether time spent by SSTs and RCTs

performed compensable work prior to the first installation or service assignment, while

traveling to the first job site, during lunch breaks, traveling to the home, and at home. The

case was complicated because after a training period, the SSTs and RCTs were paid on a

piece-rate basis which resulted in the regular rate changing during each week based on the

amount of piece work earned divided by the hours worked. This case required state-by-state

analysis of the payments to MasTec’s SSTs and RCTs to address the appropriateness of

certain deductions that were made from the plaintiffs’ wages. In addition, call center and

extensive payroll data was used to construct an appropriate back pay model that provided for

the recovery of minimum wages, deductions, and overtime compensation. Additional issues

presented by this case, included whether the plaintiffs performed work for MasTec for which

they were not paid, the amount of unpaid work, whether MasTec’s alleged policy of

preventing SSTs and RCTs from performing unauthorized overtime work precluded recovery

for unreported overtime hours, whether MasTec was aware of the unreported work

performed by SSTs and RCTs who signed time records that did not include this work time,

whether MasTec had a good faith defense to liquidated damages, whether the Employee

Commuting Flexibility Act, 29 U.S.C. § 254(a), provided MasTec with a defense to liability

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for SSTs who drove company vehicles and began and ended their workday at home, and

whether plaintiffs could prove a willful violation of the FLSA. In addition, had the case

continued, MasTec would likely have opposed certification of the claims settled herein and

moved to decertify any classes certified by the Court. If MasTec was successful at defeating

certification at any stage of this case, the plaintiffs would have been required to litigate this

case in multiple forums, which would have resulted in enormous transaction costs and

potentially conflicting outcomes.

24. Had this case continued in litigation, plaintiffs’ counsel would have

vigorously litigated this case and would have expended a substantial amount of money

preparing for trial without any guarantee of success or compensation. In addition, the

plaintiffs and opt-in plaintiffs may have recovered much less or lost this case and the

settlement will facilitate the prompt payment of their alleged damages. In addition,

Congress could have amended the SAFETEA-LU retroactively to reinstate the MCA defense

for FLSA overtime claims after August 10, 2005.

25. Out of the Maximum Gross Settlement Amount, the following individuals will

receive amounts outlined below provided they timely submit claim and relevant forms and

IRS Form W-9s. Plaintiff Stahl will receive a total settlement of $58,500 for resolving his

alleged Section 448, Florida Whistleblower Act claim which was unrelated to his wage and

hour claims, his retaliation claims, and for his time and effort in representing the class in

numerous mediations. Plaintiffs Fulford and Simpson will receive a total settlement of their

wage and hour claims along with a payment for their extensive mediation efforts of $9,800.

All other named plaintiffs will receive a total award equal to $3,000 for their wage and hours

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claims and for their time and effort in participating in the mediation and the risk they

undertook to litigate this case. Opt-in plaintiffs Angel Candelario, Christopher Creary,

Joseph Hernandez, Robert Mogollon, Balkrishna Rambharose, and Ralph Wilson, who

asserted retaliation claims in this case, will receive a total of $8,500 each for the release of

their retaliation and wage and hour claims and for their assistance in the mediation of this

case. Opt-in Plaintiffs Tiwan Cobb and Jeremy Bush will receive $1,500 for their wage and

hour claims, for executing a release, for releasing their alleged retaliation claims and in

recognition of substantial services performed for the benefit of the Settlement Classes. Opt-

in plaintiffs who returned a consent to join form to Plaintiffs’ counsel prior to the parties

reaching a final settlement and who participated in interviews with plaintiffs’ counsel will

each receive an additional $500 over their formula amounts for their time and effort in

assisting with the mediation and negotiations in this case. Finally, three California

supervisors, who are also RCT class members, Jorge Chavez, Erik Gastelum, and John

Pacheco, who were allegedly misclassified as non-exempt under California overtime laws,

will receive a total of $21,500 each to release all claims against MasTec. Plaintiffs or opt-in

plaintiffs who receive more than $1,500 in specific settlement amounts will not receive a

share of the formula settlement. The amounts set forth in the settlement for the plaintiffs and

opt-in plaintiffs who brought this litigation are reasonable based on the claims of these

plaintiffs, the substantial amount of time spent by all of these plaintiffs on mediation efforts.

26. The parties reached agreement on a global settlement which also resolved the

amount of attorneys’ fees and costs to be paid to plaintiffs’ counsel, subject to Court

approval. Thirty percent of the settlement amount, equal to $3,780,000, was allocated to pay

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plaintiffs’ counsel a reasonable attorneys’ fee for all work performed in representing more

than 12,500 plaintiffs, opt-in plaintiffs, and putative class members and for all work to be

performed in implementing the settlement. This amount is a reasonable recovery for

attorneys’ fees because putative Class Counsel created a common fund of $12.6 million for

plaintiffs who had a significant likelihood of receiving a very limited recovery. This case

only settled after extensive mediation. Plaintiffs’ counsel researched the laws of eleven

states, interviewed more than 350 witnesses, reviewed extensive payroll and call center data,

hired nationally recognized experts to assist, moved to enforce the Summary of Key Terms

of Settlement Agreement and convinced MasTec to resolve this case on favorable terms for

the plaintiff classes. In addition, plaintiffs’ counsel were required to pay out of pocket

expenses that exceed $109,000.00. Plaintiffs’ counsel’s efforts have saved significant

resources of the parties and the Court. In the settlement of this case, plaintiffs’ counsel

agreed to accept a reduced contingent fee from the forty percent fee that had been agreed to

with the named plaintiffs. Had this case been litigated as a collective action, plaintiffs’

counsel would have entered into this same contingency fee agreement with all opt-in

plaintiffs. Accordingly, this Court should preliminarily approve plaintiffs’ fee recovery

equal to thirty percent of the Maximum Gross Settlement Amount.

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27. Other than two individuals, one who has filed a collective action case

captioned, Williams v. MasTec North America, Inc., 1:07-cv-22520-ASG (S.D. Fla. 2007),

and one who has filed an individual action in Alameda County in California captioned,

Arnold v. MasTec North America, Inc., Case No. HG07331586 (Cal. Super. Ct. 2007), I am

unaware of any individuals who seek to prosecute individual actions against MasTec for the

claims settled in this case.

I declare under penalty of perjury under the laws of the State of Florida and of the

United States that the foregoing is true and correct.

Dated: November 21, 2007 /s/ Sam J. Smith________________________

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SAM J. SMITH Burr & Smith, LLP

442 West Kennedy Blvd., Suite 300 Tampa, FL 33606 (813) 253-2010

(813) 254-8391 (fax) [email protected]

www.burrandsmithlaw.com EDUCATION J.D. with Highest Honors, FSU College of Law, 1989; Class Standing 2/174 Law Review: Article and Notes Editor; Executive Writing Editor

Book Awards: Torts, Contracts, Evidence, Statutory Interpretation, Antitrust, Legal Research & Writing I and II.

Honors: Order of the Coif

B.S. in Electrical Engineering, Summa Cum Laude, 1986 Honors: Tau Beta Pi, Nat’l Eng. Honor Society Phi Kappa Phi, Nat’l Honor Society Omicron Delta Kappa, Nat’l Leadership Honor Society Eta Kappa Nu, Nat’l Elec. Eng. Honor Society, Pres. PROFESSIONAL EXPERIENCE BURR & SMITH, LLP, Tampa, Florida 1998 to Present, Partner LAW OFFICE OF SAM J. SMITH, Tampa, Florida 1995 to 1998, Sole Proprietor LAW OFFICE OF THOMAS A. WARREN, Tallahassee, Florida 1990 to 1995, Associate HOPPING, BOYD, GREEN & SAMS, Tallahassee, Florida 1989 to 1990, Associate

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mailto:[email protected]

http://www.burrandsmithlaw.com/

PROFESSIONAL RECOGNITION Foot Soldiers’ Award from the NAACP, 2003

Outstanding Service in Public Accommodations Law from the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, 2000

Recognized by Trial Lawyers Doing Public Justice for Contribution to Haynes v. Shoney’s, 1993

NOTABLE CASES

Stahl v. Mastec, Inc., Case No. 8:05-CV-01265-RAL-TGW (M.D. Fla.)(Co-Lead counsel in pending nationwide FLSA collective action). Saunders v. Ace Mortgage Funding, Inc., Case No. 05-1437-1437 DWF/JSW (D. Minn.) (Co-Lead counsel in certified pending nationwide FLSA collective action). Iuliano v. Global Executive Mortgage, Inc., Case No. 8:04CV2653-T-26EAJ (M.D. Fla. Lead Counsel in certified FLSA collective action). Mosack v. ABN AMRO, Inc., No. Case 04-61333-CIV-COHN/SNOW (S.D. Fla.)(Co-Lead counsel in certified FLSA collective action). Stone v. United States Postal Service, No. 8:04CV176-T-26EAJ (M.D. Fla.)(Co-lead counsel in certified FLSA collective action). Hickman v. Applied Card Services, Inc., No. 04-80837-CIV-COHN/SNOW (S.D. Fla.) (Lead counsel in certified FLSA collective action). Dunwiddie v. Central Locating Services, Ltd., No. 5:04CV315-OC-10GRJ (M.D. Fla.) (Lead counsel in certified multi-state FLSA collective action).

Angione v. PSS World Medical, Inc., No. 3:02-CV-854-J-25TJC (M.D. Fla.) (Co-lead counsel in certified nationwide FLSA collective action).

Munroe, et al. v. Santiago, Inc., et al., Case No. 03-CV-60259 (S.D. Fla.) (Lead counsel in certified FLSA collective action).

Hogan v. Allstate Ins. Co., 361 F.3d 621 (11th Cir. 2004) (Co-lead counsel in certified FLSA nationwide collective action).

Perez v. Home Shopping Network, Case No. 02-CV-2211 (M.D. Fla. 2002)(Lead counsel in certified FLSA collective action).

Bailey, et al. v. Gulf Coast Transportation, et al., 280 F.3d 1333 (11th Cir. 2002)(Lead counsel in FLSA collective action).

Harrison v. Enterprise Rent-A-Car, 1998 WL 422169 (M.D. Fla. 1998) (Co-Lead counsel in certified FLSA nationwide collective action).

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Elmer v. Enterprise Rent-A-Car, No. C-98-01571 VRW (N.D. Cal.1998) (Co-lead counsel in statewide class action overtime compensation case).

Gilliam, et al v. HBE Corporation, et al., 2000 U.S. Dist. Lexis 21918 (M.D. Fla. 1999) (Lead counsel in public accommodations race discrimination class action).

Carter v. West Publishing Co., 1999 WL 376502 (M.D. Fla. 1999)(Co-lead counsel in gender discrimination class action).

Shores, et al. v. Publix Super Markets, Inc., 69 Empl. Prac. Dec. (CCH) 44,477 (M.D. Fla. 1996). Haynes v. Shoney’s, Inc., 1993 U.S. Dist. Lexis 749 (N.D. Fla. 1993). PROFESSIONAL ASSOCIATIONS

Florida Bar, admitted 1989

Florida Bar, Labor & Employment Section

American Bar Association, Labor and Employment Section, Plaintiffs Co-chair, Federal Labor Standards Legislation Committee (August 2007 – present)

American Bar Association, Labor and Employment Section, Plaintiffs Co-chair, Fair Labor Standards Act Sub-Committee (2004 – August 2007)

National Employment Lawyer’s Association, FLSA Committee Legislation Liaison

Florida National Employment Lawyer’s Association

PUBLICATIONS

Contributing Author, Associate Editor and Senior Editor, 2000 – Present, Supplements to Treatise, The Fair Labor Standards Act (M. Gallagher, Editor-In-Chief; E. Kearns, Editor-In-Chief) Chapter Chair, 2002 Supplement to Employment Discrimination, C. Weirich, Editor-In-Chief Author, Florida Chapter, BNA State Wage and Hour Treatise (G. McGillivary, Editor-In-Chief) Author, NELA Employee Advocate 2007, The Wage & Hour Field Assistance Bulletin 2007-2 Acknowledges Changes in the Motor Carrier Act for Drivers of Light-Weight Vehicles

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RECENT PROFESSIONAL PRESENTATIONS ___

Florida Bar, Labor & Employment Section, Advanced Labor Topics, 2007, Presentation: “Update on the Fair Labor Standards Act and Related Issues” American Conference Institute’s 4th National Forum on Wage & Hour Claims and Class Actions, 2007, Presentation: “Strategies for Mediating Your Wage & Hour Action” National Employment Lawyers Association, 2007 Eighteenth Annual Convention, Presentations: “The New Era of Enforcing Workers’ Rights Under the FLSA: Recovering Pre and Post Shift Wages and Overcoming the Motor Carrier Act Defense” Florida National Employment Lawyers Association, 2007, Presentation: FLSA Claims: The Good, The Bad, and The Ugly National Employment Lawyers Association, 2007 Representing Workers In Individual & Collective Actions Under The FLSA, Presentations: “Strategies for Mediating FLSA Collective Actions” and “Legislative Developments” American Bar Association, Section of Labor and Employment Law, First Annual CLE Conference, 2007, Presentation: “Key Substantive FLSA Issues: Determining Compensable Work Issues and Joint Employment” National Employment Lawyers Association, 2006 Seventeenth Annual Convention, Presentation: “Fair Labor Standards Act 101” American Bar Association, Section of Labor and Employment Law, Mid-Winter Meeting of the Federal Labor Standards Legislation Committee, 2006, Presenter: Annual Report on FLSA Developments Florida Bar, Labor & Employment Section, Advanced Labor Topics, 2005, Presentation: “Recent Developments Regarding the Fair Labor Standards Act Florida National Employment Lawyers Association, 2004, Presentation: FLSA Recent Developments American Bar Association, Section of Labor and Employment Law, Annual Meeting, 2004, Presenter: FLSA Basics Florida Bar, Labor & Employment Section, Advanced Labor Topics, 2004, Presentation: “Recent Developments Regarding the ‘White Collar Exemptions’ To the Fair Labor Standards Act Hillsborough County Bar, Labor And Employment Seminar, 2004, Presentation: Proposed Changes to the “White Collar Exemptions” To the Fair Labor Standards Act

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American Bar Association, Section of Labor and Employment Law, Mid-Winter Meeting of the Federal Labor Standards Legislation Committee, 2004, Presenter: Annual Report on FLSA Developments American Bar Association, Section of Labor and Employment Law, Mid-Winter Meeting of the Federal Labor Standards Legislation Committee, 2003, Presenter: Annual Report on FLSA Developments National Employment Lawyers Association, “Protecting Employee Rights Under the FLSA, FMLA & Equal Pay Act,” 2003, Presentation: “Ten Practical Tips for Litigating FLSA & Equal Pay Act Claims” National Employment Lawyers Association, “Protecting Employee Rights Under the FLSA, FMLA & Equal Pay Act,” 2003, Presentation: “Nuts & Bolts of FLSA: Retaliation and Record Keeping” National Employment Lawyers Association, “Protecting Employee Rights Under the FLSA, FMLA & Equal Pay Act,” 2003, Presentation: “Recent Developments Under the Equal Pay Act” American Bar Association Annual Convention, 2002, Presenter, “Litigation of FLSA Collective Actions: Strategies for Plaintiffs’ and Defendant’s Counsel” Florida National Employment Lawyers Association, 2002, Presentation: How To Identify Employment Related Class And Collective Actions ABA Section of Labor and Employment Law Mid-Winter Meeting of the Federal Labor Standards Legislation Committee, 2002, Presenter: Annual Report on FLSA Developments

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DAVID BORGEN

GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN

300 Lakeside Drive, Suite 1000

Oakland, CA 94612

(510) 763-9800

(510) 835-1417

[email protected]

www.gdblegal.com

David Borgen is a partner with Goldstein, Demchak, Baller, Borgen & Dardarian, a twelve attorney law firm located in Oakland, California, which represents plaintiffs and employees in complex and class action litigation, including employment discrimination, wage and hour, environmental, consumer and other public interest class actions and attorneys’ fees litigation. The law firm, formerly Saperstein, Goldstein, Demchak & Baller, was founded in 1972 and has a national practice. Goldstein, Demchak has litigated class action lawsuits in Texas, New York, Florida, Georgia, Missouri, Washington, Michigan, Maryland, and Minnesota, as well as California, including the class action on behalf of women who were denied or deterred from positions as State Farm insurance sales agents, Kraszewski v. State Farm General Ins. Co., 30 FEP 197 (N.D.Cal. 1985), and the retail store gender discrimination class action, Butler, et al. v. Home Depot, Inc., 70 FEP 51 (N.D.Cal. 1996) (class action on behalf of women employees in and applicants to Home Depot Stores in its Western Division). He was lead counsel in Harrison v. Enterprise Rent-A-Car, 1998 WL 422169 (M.D. Fla. 1998) (certified as a nationwide FLSA collective action) and numerous state wage and hour class actions brought under California law. He is a Fellow of the College of Labor and Employment Lawyers, a national honorary society. He is the Associate Editor of the Cumulative Supplement to the BNA Fair Labor Standards Act treatise and Co-Chair of the ABA’s Federal Labor Standards Legislation Committee. He is also a Senior Editor of the BNA treatise Wage and Hour Laws: A State by State Survey (2005). He is a graduate of University of California – Hastings College of the Law (1981) (Order of the Coif). Prior to joining the Goldstein firm, he was counsel for the Communications Workers of American, AFL-CIO.

BAR MEMBERSHIP State Bar of California (Since December 1981) United States District Courts for Northern, Central, and Eastern Districts of California United States Court of Appeal for the Third, Ninth, and Eleventh Circuits

LITIGATION EXPERIENCE (partial listing)

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mailto:[email protected]

http://www.gdblegal.com/

Dent v. Cox Communications Las Vegas, Inc., _F.3d_, 2007 WL 2580754, 12 WH Cases 2d 1537 (9th Cir., Sept. 10, 2007) (Lead appellate counsel; obtained reversal of district court dismissal of FLSA overtime claims due to inadequate DOL WH-58 Release form). Mousai v. E-Loan, Inc., No. C-06-1993-SI (N.D. Cal.) (Plaintiff Class Settlement Counsel for class of mortgage loan officers seeking overtime; final approval of $13.6 million settlement granted May 30, 2007). Lipnick et al. v. Sprint/United Management Company, No. CIV 463110 (San Mateo County Superior Court) (Co-Counsel for putative Class of call center employees seeking back pay under the FLSA and state law, filed May 21, 2007). Vasquez v. Bank of America, No. 1168845 (Superior Court, Santa Barbara County) (Co-Lead Counsel for statewide class of Liability Risk Analysts seeking overtime pay; final approval granted on February 1, 2007, as to $2,500,000 class settlement). Rosenberg v. IBM, No. 06-00430 PJH (N.D. Cal.) (Co-Counsel for putative nationwide FLSA and multi-state class of technical services workers), filed January 24, 2006; final approval of nationwide $65 million settlement granted July 11, 2007).

Chou v. Starbucks Corp., No. GIC 836925 (Superior Court, San Diego County) (Co-Lead Class Counsel for certified class action on behalf of baristas challenging unlawful tip pool in California stores).

Rankin v. Longs Drug Stores, No. GIC 837068 (Superior Court, San Diego County) (Lead Class Counsel for certified class of applicants for employment in California stores seeking statutory penalties for unlawful inquiry into misdemeanor marijuana convictions more than two years old).

Scherer v. Combined Insurance Company of America, No. 3:06CV2058 (MRK) (D. Conn.) (Co-Lead Counsel for proposed class of insurance district managers challenging unauthorized payroll deductions, filed December 4, 2006).

Levy v. Verizon Information Services, Inc., 2007 WL 1747104 (E.D.N.Y.) (Co-Counsel for multi-state collective action for “yellow book” sales personnel), collective action notice approved, June 11, 2007.

Pearman v. California State Automobile Association (CSAA), No. R05227458 (Superior Court, Alameda County) (Co-lead counsel for multistate class and collective action for overtime pay for insurance sales agents; final approval granted on January 24, 2006, for $11,230,000 settlement).

Grazier v. Walgreens Co., No. RG05-0228473 (Superior Court, Alameda County) (Co-lead counsel for “MGT Assistant Managers” seeking relief for missed meal periods under state law; final approval granted on November 14, 2005, for $3,800,000 class settlement).

Nitzberg v. Citicorp, No. 604423-06 (Supreme Court, New York) (Co-Counsel for putative class of investment brokers seeking overtime pay).

Zheng v. Siebel Systems, Inc., No. CIV 435601 (Superior Court, San Mateo County) (Counsel with Dickson-Ross LLP for software engineers; final approval granted on April 27, 2007, for $27.5 million class settlement of overtime claims).

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Dunwiddie, et al. v. Central Locating Services, No. 5:04-CV-315-OC-106 (M.D. Fla.) (Co-counsel in certified nation-wide collective action under FLSA and in related actions in New York and Washington; global settlement in excess of $8 million in 2006).

Bullock v. Automobile Club of Southern California, No. SACV01-731GLT, 2002 WL 432003 (C.D. Cal.) (Lead counsel in FLSA collective action certified for over 500 opt-in Sales Agent plaintiffs and settled in conjunction with Rule 23 class for a total of 1,300 claims in the amount of $19.5 million; final approval granted December 6, 2004).

Angione v. PSS World Medical, Inc., No. 3:02-CV-854-J-25TJC (M.D. Fla.) (Co-lead counsel; nationwide FLSA collective action notice ordered February 21, 2003; final approval of $3 million settlement ordered on November 5, 2004).

Ramirez v. Labor Ready, Inc., No. 836186-2, 2002 WL 1997037 (Superior Court, Alameda County) (Lead counsel for class of 300,000 temporary day laborers seeking unpaid wages and reimbursement of expenses; certified on July 12, 2002; final approval of $1.9 million class settlement granted on August 2, 2004).

Cowan v. GEICO, No. GIC 810166 (Superior Court, San Diego County) (Co-lead counsel for proposed class of over 3,000 telephone center workers seeking overtime pay; filed May 5, 2003; final approval of $3.3 million settlement granted on July 9, 2004).

Marroquin v. Bed Bath & Beyond of California, No. RG04145918 (Superior Court, Alameda County) (Lead counsel for statewide class of salaried department managers; final approval of $2,980,000 settlement granted on June 22, 2004).

Mitchell v. Metropolitan Life Ins. Co., No. 01-CIV-2112 (WHP) (S.D.N.Y.) (Co-lead counsel for nationwide class of 3,600 female insurance sales agents and managers; final approval of $13.4 million class settlement granted on November 6, 2003).

Miskell v. Automobile Club of Southern California, No. 01CC09035 (Superior Court, Orange County) (Co-lead counsel in class action stating overtime claims for insurance claims adjusters; final approval granted in May 2003 for $2.5 million settlement).

Thomas v. CSAA, No. CH217752-0 (Superior Court, Alameda County) (Class counsel for class of 1200 insurance claims adjusters; final approval of $8 million settlement for overtime claims, granted in May 2002).

Weddle v. Frito-Lay, Inc., No. C 99-05272 PJH (N.D. Cal.) (Co-lead counsel in litigation seeking class relief statewide for overtime claims; final approval of $11.9 million class settlement granted February 2001).

D’Imperio v. Nation’s Foodservice, Inc., No. C-00309 PJH (N.D. Cal.) (Lead counsel in overtime class action for 90 restaurant managers; final approval granted in 2001 to $950,000 settlement).

Davis v. The Money Store, No. 99A501716 (Superior Court, Sacramento) (Lead counsel in litigation seeking class relief statewide for overtime claims; $6 million class settlement approved December 2000).

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Otero v. Rent-A-Center, No. BC 217038 (Superior Court, Los Angeles) (Lead counsel in litigation seeking class relief statewide for overtime claims resulting in $3 million settlement in 2000).

Babbitt v. Alberson’s, Inc., No. C-92-1883-SBA (N.D. Cal.) (Statewide Title VII class action resulting in injunctive relief and $29 million monetary settlement).

Butler v. Home Depot, 70 FEP Cases 51 (N.D. Cal.) (Gender discrimination class action that resulted in monetary relief of $87 million and injunctive relief covering the western region of Home Depot).

Byrd v. Sprint Corp., No. CV 92-18979 (Sup. Ct. Missouri) (Common law tort and contract class action on behalf of persons who sold long-distance service that resulted in a recovery of $62.5 million).

DeSoto v. Sears Roebuck & Co., No. RG 03096692 (Superior Court, Alameda County) (Co-lead counsel for statewide class of 2,700 home repair technicians certified on September 21, 2004).

Elmer v. Enterprise Rent-A-Car, No. C-98-01571 VRW (N.D. Cal.) (Lead counsel in statewide class action overtime compensation case; the two Enterprise cases resulted in $6 million in monetary relief).

Hogan v. Allstate Ins. Co., 210 F. Supp. 2d 1312 (M.D. Fla.) (Lead counsel in FLSA action; nationwide collective action notice ordered to 8,500 sales agents in May 2001).

Harrison v. Enterprise Rent-A-Car, 1998WL 422169 (M.D. Fla. 1998) (Lead counsel in nationwide collective action under Fair Labor Standards Act).

Herring v. SaveMart, No. C-90-3571 BAC (N.D. Cal.) (Title VII class resulting in injunctive relief and $6.3 million monetary settlement).

Kraszewski v. State Farm General Ins. Co., 38 FEP Cases 197 (N.D. Cal.) (Statewide Title VII class action sex discrimination case resulting in $250 million settlement).

CONFERENCE PRESENTATIONS AND PUBLICATIONS

American Bar Association, Labor and Employment Law Section, Annual CLE Conference, Moderator, “Litigating Wage and Hour Class Cases from A to Z,” Philadelphia, PA (November 8, 2007).

National Employment Lawyers Association, Representing Workers in Individual and Collective Actions Under the FLSA, Program Committee Co-Chair and Moderator, New Orleans, LA (October 19-20, 2007).

American Conference Institute’s 5th National Forum on Wage & Hour Litigation, Panelist, “Dispositive Motions: Attacking Wage and Hour Claims or Defenses,” San Francisco, CA (October 3, 2007).

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Employee Rights and Employment Policy Journal (Chicago-Kent College of Law), “Advanced Issues in FLSA Collective Actions: Joint Employment,” Vol. 10, No. 2 (2006).

National Employment Lawyers Association Annual Convention, Moderator/Panelist, “The New Era of Enforcing Workers’ Rights Under the FLSA,” San Juan, Puerto Rico (June 28, 2007).

California Employment Lawyers Association, Advanced Seminar on Getting To and Through a Class Action Trial, Panelist, “Class Action Trial Plans,” El Segundo, CA (May 11, 2007).

American Conference Institute’s 4th National Forum on Wage & Hour Claims and Class Actions, Panelist, “Achieving or Defeating Class Certification in Wage & Hour Cases,” New York, New York (April 26, 2007).

University of California, Boalt Law School (Berkeley), Guest Lecturer, “Examining a Class Action on Behalf of Temporary Workers,” Representing Low Wage Workers Seminar, Law 283 (January 30, 2007.)

Colorado Bar Association, National CLE Conference, Aspen, Colorado (January 7, 2007), “Major Areas of Liability in Wage & Hour Law.”

Practicing Law Institute (PLI), 35th Annual Institute on Employment Law, San Francisco, California and Live Webcast, October 31, 2006, Panelist: “Compensation and State Law Wage Claims.”

The Labor and Employment Law Section of the State Bar of California, Annual Meeting, General Session re “Top Ten Wage and Hour Developments,” San Jose, California, October 27, 2006.

American Conference Institute, National Forum on Wage & Hour Claims and Class Actions, Panelist: “Wage and Hour Class Certification: Strategies and Winning Arguments,” San Francisco, California, October 26, 2006.

California Labor & Employment Law Review, State Bar of California and Employment Law Section, Volume 20, No. 2 (Spring 2006), “Book Review: Getting Even: Why Women Don’t Get Paid Like Men – And What To Do About It.”

Colorado Bar Association, National CLE Conference: Labor & Employment Law, Aspen, Colorado, January 4, 2006, “Major Areas of Liability in Wage and Hour Law.”

American Bar Association, Section of Labor and Employment Law and ABA Center for CLE Teleconference and Live Audio Webcast, “The Supreme Court Speaks: Compensable Time as a Result of IBP, Inc. v. Alvarez” (December 14, 2005).

National Employment Lawyers Association (NELA), Impact Litigation Seminar (Program Committee), Cambridge, MA (October 14-15, 2005); Panelist: “Advanced Issues in Collective Actions.”

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American Bar Association, Section of Labor and Employment Law, Mid-Winter Meeting of the Equal Employment Opportunity Committee, April 7, 2005 (Naples, Florida): “The FLSA Trajectory: Challenges on the Horizon,” Panelist regarding FLSA representative actions.

American Bar Association, Labor and Employment Law Teleconference, “The Wave Continues … 1500 New FLSA Class Actions Filed in 2004...More Expected in 2005,” (March 2, 2005), Panelist on national MCLE teleconference program.

American Bar Association, Federal Labor Standards Legislation Mid-Winter Meeting, Cancun, Mexico, February 17, 2005, FLSA Panel: Discussion of Current Issues.

Law Education Institute, National CLE Conference (Colorado State Bar Association), Aspen, Colorado (January 5, 2005), “How Long Can You Go? Current Issues in Wage and Hour Law.”

American Bar Association, Section of Labor and Employment Law, and Bar Association of San Francisco, “Fair Labor Standards Act/Family Medical Leave Act Basic Law and Procedures,” Program Chair and Moderator (December 9, 2004).

American Bar Association Annual Convention, Atlanta, GA, August 10, 2004, Moderator, “Wage and Hour Update: The New FLSA Regulations and Litigation Issues.”

American Bar Association Annual Convention, Atlanta, GA, August 9, 2004, Panelist “In-House v. Outside Counsel – What We Want From Each Other.”

National Employment Lawyers Association (NELA), Annual Convention Speaker, “Advanced FLSA Collective Actions Panel,” San Antonio, TX (June 24, 2004).

Minnesota State Bar Association, Labor and Employment Section, Annual Upper Midwest Employment Law Institute, St. Paul, MN (May 26, 2004), Plenary Speaker, “The New FLSA Wage and Hour Regulations.”

Placer County Bar Association, Continuing Education Conference, Lake Tahoe, California (April 24, 2004), “Wage/Hour Litigation.”

American Bar Association, Section of Labor and Employment Law, Mid-Winter Meeting of the Federal Labor Standards Legislation Committee, February 19-20, 2004 (St. Thomas, USVI): Annual Report on FLSA Developments.

Law Education Institute, National CLE Conference, Aspen, Colorado (January 6, 2004), “Class Certification and Decertification: Advocacy, Strategy, and Tactics.”

Employee Rights and Employment Policy Journal (Chicago-Kent College of Law), “Litigation of Wage and Hour Collective Action Under the Fair Labor Standards Act,” with Laura L. Ho, Vol. 7, No. 1 (2003).

National Employment Law Project, et al. Representing Workers and Low-Income Plaintiffs: Tax Consequences in Administration of Settlements and Resolving I.R.S. Controversies, Oakland, CA, October 24, 2003.

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State Bar of California, Labor and Employment Law Section Annual Meeting, San Diego, CA, October 10, 2003, “Wage and Hour Law – Reloaded.”

California State Bar Law and Employment Law Section, California Labor & Employment Law Review, Vol. 17, No. 5 (September 2003), “Can We Talk?” (regarding communications in state class actions).

National Employment Lawyers Association (NELA), Program Committee and Panelist, “Protecting Employee Rights Under the FLSA, FMLA and Equal Pay Act,” San Francisco, CA (March 7-8, 2003).

American Bar Association, Section of Labor and Employment Law, Mid-Winter Meeting of the Federal Labor Standards Legislation Committee, February 19-21, 2003 (Puerto Vallarta, Mexico): Annual Report on FLSA Developments.

Contra Costa County Bar Association, MCLE Spectacular, Panelist, New Developments in Wage & Hour Law and Use of California’s Unfair Competition Law, Walnut Creek, CA (November 22, 2002).

State Bar of California, Labor and Employment Section, Annual Meeting, Wage & Hour Update: Where Are We Two Years After AB60? (San Jose, CA), November 15, 2002.

Practicing Law Institute, Annual Institutes on Employment Law (New York, NY and/or San Francisco, CA) November 1, 2005; November 2, 2004; November 4, 2003; October 2002; October 2001; October 2000; October 1999; October 1998: Major Developments in Employment Law: Plaintiffs’ Perspective; Wage/Hour Developments.

BNA Wage Hour & Leave Report, “Production Dichotomy Test for FLSA’s Administrative Exemption Still Useful,” Vol. 1, No. 18, September 13, 2002, pp. 465-466.

American Bar Association Annual Convention, Washington, D.C., August 12, 2002, Moderator, “Litigation of FLSA Collective Actions: Strategies for Plaintiffs’ and Defendant’s Counsel.”

California State Bar Labor and Employment Section, California Labor and Employment Law Quarterly, Vol. 16, No. 3 (May 2002), “Yarbrough v. Labor Ready: Class Action to Enforce California Wage Laws.”

Pacific Coast Labor & Employment Law Conference (Seattle, WA), May 2, 2002, Wage & Hour Litigation – The New Wave of Class Actions: Substantive Developments and Litigation Strategies.

BNA Wage Hour & Leave Report, “Questions Arise Over Rules for Collective Actions Under FLSA,” Vol. 1, No. 3, February 1, 2002, pp. 77-79.

ABA Section of Labor and Employment Law Mid-Winter Meeting of the Federal Labor Standards Legislation Committee, February 2002 (Miami Beach, FL): Annual Report on FLSA Developments.

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Associate Editor, The Fair Labor Standards Act, 2001 and 2002 Cumulative Supplements, Bureau of National Affairs, Inc.

California Employment Law Council, Guest Speaker, Annual Meeting, November 8, 2001, “A Plaintiff’s Perspective on Wage/Hour Issues.”

American Bar Association Annual Convention, Chicago, August 5, 2001, “The Basics: Fair Labor

Standards Act.”

National Employment Lawyers Association Annual Convention, Seattle, June 28, 2001, “Selected Issues Under the FLSA and Equal Pay Act”.

American Bar Association, Section of Labor and Employment Law and Golden Gate University School of Law, Institute on the Fair Labor Standards Act and the Family Medical Leave Act, Moderator, San Francisco, California (June 6, 2001).

Organization Resources Counselor, Inc., Employment Law and Litigation Group, Guest Speaker, Employment Law From Plaintiffs’ Perspective, New York, New York (May 31, 2001).

The Recorder Roundtable: Employment Law Developments, May 8, 2001 (San Francisco).

ABA Section of Labor and Employment Law Mid-Winter Meeting of the EEO Committee, February 2001 (Sanibel Harbor, FL): An Introduction to Litigating FLSA Collective Actions for the EEO Lawyer.

ABA Section of Labor and Employment Law Mid-Winter Meeting of the Federal Labor Standards Legislation Committee, February 2001 (La Romana, Dominican Republic): Annual Report on FLSA Developments.

California State Bar Labor and Employment Section, California Labor & Employment Law Quarterly (Winter 2000), “Overtime Pay – Who’s Eligible, Who’s Not?” (with Aaron Kaufmann).

National Employment Law Institute July 2000 (San Francisco): Recent Developments in Equal Employment Law from the Perspective of Plaintiffs’ Attorneys.

ABA Labor and Employment Law Section Annual Meeting July 8-11, 2000 New York: Federal Labor Standards Legislation Committee Program. Unique aspects of litigation and settling opt-in class actions under the Fair Labor Standards Act, The Age Discrimination in Employment Law Act and the Equal Pay Act.

Lawcast: Employment and Labor, Vol. VI, No. 7 (April 24, 2000), audiocassette re

wage/hour developments.

National Public Radio (KALW) April 12, 2000: “Know Your Legal Rights,” on wage and hour issues.

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ABA Section of Labor and Employment Law Mid-Winter Meeting of the Federal Labor Standards Legislation Committee February 2000 (Key West, FL): Panel Discussion: Unique Aspects of Litigating and Settling FLSA Cases.

Organization Resources Counselors, Inc. Workforce Opportunity Network February 2000 (Los Angeles, CA): What’s Hot in 2000: A Plaintiffs’ Attorney’s View of Discrimination.

National Lawyers Guild, Annual Convention October 1999 (San Francisco): The Future of Employment Law Practice (Workshop Moderator).

ABA Labor and Employment Law Section August 1999 Annual Meeting (Atlanta, GA): Class Actions in Employment Law.

National Employment Lawyers Association, Annual Convention, June 1999 (New Orleans): Collective and Class Action Strategies in Overtime Litigation.

National Employment Lawyers Association, Annual Convention 1997 (Toronto): Maximizing Recoveries Under the Damages Caps of the Civil Rights Act of 1991; Attorneys Fees: The Basics.

Los Angeles County Bar Association Labor and Employment Law Section Symposium 1998 (Los Angeles): Affirmative Reactions: The Future of Race-Conscious Remedies for Employment Discrimination.

State Bar of California Labor and Employment Law Section (San Francisco 1997): Legal Ethics for Employment Lawyers.

National Lawyers Guild (San Francisco 1992): How to Use Experts to Prove Damages – Employment, Tort and Discrimination Cases.

ABA Labor and Employment Law Section 1992 Mock Trial Program (San Francisco, CA and Washington, D.C.): Presenting and Defending an Americans with Disabilities Act Lawsuit.

PROFESSIONAL ASSOCIATIONS College of Labor and Employment Lawyers, Fellow (2004- )

Labor and Employment Section, Co-chair, Committee on Federal Labor Standards Legislation – American Bar Association (ABA) (2003 – 2007); Co-chair, Fair Labor Standards Act Sub-Committee (2000 – 2004); National Programs Subcommittee, Co-chair (2007-2008).

Labor and Employment Section – State Bar of California.

National Employment Lawyers Association (NELA) – Wage and Hour Committee Co-Chair.

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Bureau of National Affairs (BNA), Wage Hour & Leave Report Advisory Board (2001-2003).

National Lawyers Guild (NLG), 1978-2007; selected to receive San Francisco Chapter’s “Champion of Justice” award (April 5, 2008).

PRESS

Featured as one of the San Francisco Bay Area’s “top attorneys” in employment law, in The Recorder Special Report (March 15, 2004).

Listed in Oakland magazine March-April 2006 and March 2007 articles on “The Best Lawyers in the East Bay.”

Listed in The Best Lawyers in America (Wood/Whyte), 2006, 2007.

Selected as “SuperLawyer” in the Northern California Super Lawyers Magazine (2006, 2007).

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