Free Stipulation - District Court of Arizona - Arizona

LATHAM & WATKINS LLP Joel E. Krischer (California SBN 066489) (admitted pro hac vice) [email protected] 633 West Fifth Street, Suite 4000 Los Angeles, California 90071-2007 Telephone: (213) 485-1234 Facsimile: (213) 891-8763 LATHAM & WATKINS LLP Joanna R. Wolfe (New York SBN 4436960) (admitted pro hac vice) [email protected] 885 Third Avenue, Suite 1000 New York, New York 10022-4802 Telephone: (212) 906-1200 Facsimile: (212) 751-4864 LATHAM & WATKINS LLP John R. Hayes (Illinois SBN 6286365) (admitted pro hac vice) [email protected] 233 South Wacker Drive, Suite 5800 Chicago, Illinois 60606 Telephone: (312) 876-7700 Facsimile: (312) 993-9767 SEYFARTH SHAW LLP Andrew M. Paley (California SBN 149699) (admitted pro hac vice) [email protected] 2029 Century Park East, Suite 3300 Los Angeles, California 90067-3063 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA IN RE ALLSTATE INSURANCE CO. FAIR LABOR STANDARDS ACT LITIGATION MDL NO. 1541 MDL NO. 1541 ALL CASES STIPULATION AND PROPOSED ORDER RE WITHDRAWAL OF CONSENT TO JOIN FORM OF EDWARD CZARNECKI Assigned to the Hon. Paul G. Rosenblatt [Proposed Order filed concurrently herewith]

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Defendants Allstate Insurance Company ("AIC"), Allstate Property and Casualty Insurance Company ("AP&C") and Allstate Indemnity Company ("Indemnity") (collectively, "Defendants" or "Allstate"), and counsel for opt-in Plaintiff Edward Czarnecki ("Czarnecki"), having met and conferred regarding the Withdrawal of Consent to Join Form of Edward Czarnecki filed herein on August 14, 2007 ("Czarnecki's Withdrawal"), hereby jointly propose the following stipulation and order regarding Czarnecki's Withdrawal: [Background] 1. On August 14, 2007, Mr. Czarnecki filed his Withdrawal with the Court.

The Withdrawal was dated June 30, 2007. 2. On September 12, 2007, this Court held a status conference with the parties

where it was decided the parties would brief the Court on the withdrawals of the opt-in Plaintiffs. Allstate specifically objected to the attempted withdrawal of Czarnecki because his withdrawal was not filed until after the Summary Judgment Order recently issued by this Court. 3. On October 3, 2007, Allstate filed two motions regarding the potential

withdrawals of the Plaintiffs in this action, one entitled Defendants' Motion to Determine Basis on which Plaintiffs should be Permitted to Dismiss Claims ("Motion re: Dismissal") and one entitled Defendants' Motion to Strike the Withdrawal of Consent to Join Form of Edward Czarnecki ("Motion to Strike"). Both of these motions are now pending before the Court. [Stipulation and Proposed Order] 4. Allstate and Czarnecki agree and jointly move the Court as follows: (a) Czarnecki's Withdrawal should be deemed stricken and Czarnecki's

claims against Allstate under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA") should be dismissed without prejudice based on Czarnecki's agreement to refrain from asserting, either on his own behalf or as a member of a

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collective action, any claim for overtime pay he might have under the FLSA against Allstate for any events that occurred during his employment with Allstate up to the date of this stipulation; (b) Allstate and Czarnecki agree that the above dismissal of Czarnecki's

claims in this case is not a decision on the merits; (c) Allstate and Czarnecki agree that this stipulation and the order

resulting from it shall have no effect on any other claim Czarnecki might have under any law other than the FLSA including, but not limited to, the claims Czarnecki is currently litigating against Allstate for overtime pay in Nettles, et al. v. Allstate Ins. Co., et al., No. 02 CH 14426 (Ill. Cir. Ct. Cook Cty.); (d) Allstate and Czarnecki agree that Allstate's Motion to Strike should

be withdrawn and taken off the calendar; (e) Allstate and Czarnecki agree that Allstate's Motion re: Dismissal is

moot as to Czarnecki; and (f) Allstate and Czarnecki agree and request that the Court spread their

stipulation of record, and that the Court accordingly enter the agreed draft order attached hereto as Exhibit 1.

DATED this 17th day of October, 2007. By: s/Joel E. Krischer Joel E. Krischer LATHAM & WATKINS LLP Attorneys for Defendants By: s/Michael Hilicki Michael Hilicki LAWRENCE WALNER & ASSOCIATES, LTD. Attorneys for Edward Czarnecki

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EXHIBIT 1

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[DRAFT ORDER ­ NOT TO BE SIGNED OR FILED]

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

IN RE ALLSTATE INSURANCE CO. FAIR LABOR STANDARDS ACT LITIGATION

MDL NO. 1541 ALL CASES ORDER REGARDING EDWARD CZARNECKI'S VOLUNTARY DISMISSAL Assigned To: Hon. Paul G. Rosenblatt

On August 14, 2007, Edward Czarnecki filed his Withdrawal of Consent to Join Form ("Czarnecki's Withdrawal") with this Court. On October 3, 2007 Allstate filed its Motion to Strike the Withdrawal. On October 17, 2007, Allstate and Czarnecki filed a stipulation: (1) to withdraw Allstate's Motion to Strike Czarnecki's Withdrawal; (2) to deem Czarnecki's Withdrawal stricken; (3) to request, without deciding any issue, that Czarnecki's claims in this case be dismissed without prejudice and without any decision on the merits; (4) to spread of record Czarnecki's agreement to refrain from asserting, either on his own behalf or as a member of a collective action, any claim for overtime pay he might have against Allstate under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., for any events that occurred during his employment with Allstate; and (5) to spread of record the parties' agreement that their stipulation and this order shall

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not affect any other claim Czarnecki might have under any other law including, but not limited to, the claims Czarnecki is currently litigating against Allstate in Nettles, et al. v. Allstate Ins. Co., et al., No. 02 CH 14426 (Ill. Cir. Ct. Cook Cty.) WHEREFORE, IT IS HEREBY ORDERED that Czarnecki's Withdrawal is deemed stricken, Allstate's objection to Czarnecki's Withdrawal is deemed withdrawn and, without deciding any issue, Czarnecki's claims are dismissed without prejudice; IT IS FURTHER ORDERED that this dismissal shall not constitute a decision on the merits of any claims Czarnecki has or might have; IT IS FURTHER ORDERED that Allstate's Motion to Strike is removed from the calendar;; IT IS FURTHER ORDERED that Allstate's Motion re: Dismissal is deemed moot as to Czarnecki; IT IS FURTHER ORDERED that Czarnecki's voluntary agreement to refrain from asserting, either on his own behalf or as a member of a collective action, any claim for overtime pay he might have against Allstate under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., for any events that occurred during his employment with Allstate up to the date of this stipulation, is hereby spread of record; and IT IS FURTHER ORDERED that Allstate's and Czarnecki's agreement that their stipulation and this order shall not affect any claim Czarnecki might have under any law other than the FLSA including, but not limited to, the claims Czarnecki is currently litigating against Allstate for overtime pay in Nettles, et al. v. Allstate Ins. Co., et al., No. 02 CH 14426 (Ill. Cir. Ct. Cook Cty.), is hereby spread of record. ORDERED in Phoenix, Arizona, this ___ day of October, 2007

Paul G. Rosenblatt United States District Judge

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CERTIFICATE OF SERVICE I hereby certify that on October 17, 2007, I electronically transmitted the attached document described as STIPULATION AND PROPOSED ORDER RE WITHDRAWAL OF CONSENT TO JOIN FORM OF EDWARD CZARNECKI to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Clerk, United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street, Suite 130, SPC 1 Phoenix, AZ 85003-2118 Kelly McInerney, Esq. McInerney & Jones 18124 Wedge Parkway, Suite 503 Reno, NV 89511 [email protected] Attorneys for Plaintiffs in Rosa v. Allstate George Sintsirmas, Esq. George Sintsirmas, LLC 6212 Coldstream Road Highland Heights, OH 44143 [email protected] Attorneys for Plaintiffs in Gaglione v. Allstate Mark Wintering, Esq. Robert E. Sweeney Co., LPA 55 Public Square, Suite 1500 Cleveland, OH 44113 [email protected] Attorneys for Plaintiffs in Gaglione v. Allstate Steven M. Weiss, Esq. Law Offices of Steven M. Weiss 1250 Illuminating Building 55 Public Square, Suite 1009 Cleveland, OH 44113 [email protected] Attorneys for Plaintiffs in Gaglione v. Allstate James A. Jones, Esq. Karla S. Jackson, Esq. Gillespie, Rozen, Watsky, Motley & Jones 3402 Oak Grove Avenue, Suite 200 Dallas, TX 75204 [email protected] [email protected] Attorneys for Plaintiffs in Wunder v. Allstate

Andrea Elisabeth Watters, Esq. Watters Law Office, PC 2807 East Broadway Boulevard Tucson, AZ 85716 [email protected] Attorneys for Plaintiffs in Montano v. Allstate

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By:

s/John R. Hayes John R. Hayes LATHAM & WATKINS LLP Attorneys for Defendants

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