Free Report - District Court of Arizona - Arizona

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LATHAM & WATKINS LLP Joel E. Krischer (California SBN 066489) (admitted pro hac vice) [email protected] Joanna R. Wolfe (California SBN 217409) (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 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

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 McINERNEY & JONES Kelly McInerney, Esq. (Nevada SBN 7443) (admitted pro hac vice) [email protected] Charles A. Jones, Esq. (Nevada SBN 6698) (admitted pro hac vice) [email protected] 18124 Wedge Parkway, Suite 503 Reno, Nevada 89511 Telephone: (775) 849-3811 Facsimile: (775) 849-3866 Attorneys for Plaintiffs 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 JOINT REPORT TO COURT RE OPT-INS AND JOINT REQUEST FOR ORDER TO APPROVE SUPPLEMENTAL NOTICE TO CERTAIN OPT-INS Assigned to the Hon. Paul G. Rosenblatt [Proposed Joint Supplemental Class Notice filed concurrently herewith]

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The parties hereby report the following to the Court regarding potential participants ("Opt-Ins") in this collective action who, in response to the "NOTICE OF PENDENCY OF COLLECTIVE ACTION AND RIGHT TO JOIN" (the "Notice") have signed and returned the "CONSENT TO JOIN COLLECTIVE ACTION" ("Consent Form") approved by the Court in its order dated May 3, 2006 in this case: [Overview] 1. were mailed. 2. A total of seven hundred sixty eight (768) Notices were returned as A total of fifteen thousand nine hundred twenty seven (15,927) Notices

undeliverable. A skip-trace was performed on all of these, and six hundred seventy nine (679) were sent to a more recent address on or before July 6, 2006. Of these, one hundred eighty two (182) were returned as undeliverable and no further effort was made to locate the individuals. A final mailing to a more recent address was made on about August 25, 2006 for six (6) Notices that were more recently returned as undeliverable from the initial mailing. To be timely, Consents from these individuals will have to be postmarked by approximately September 24, 2006. 3. A total of three thousand two hundred sixty two (3262) written consents

have been filed with the Court in this action: (a) Six hundred thirty seven (637) of these were filed in one or more of

the separate cases prior to the mailing of the Notice and Consent Form ordered by this Court; and (b) Two thousand six hundred twenty five (2625) were Consent Forms

returned in response to the recent mailing. All such individuals are listed alphabetically in Exhibit A. For the reasons explained below, the Consent Forms of "California-only adjusters" and duplicate Consent Forms have not been filed with the Court. 4. A breakdown of all the forms actually received in response to the recent

mailing is as follows:
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(a)

Two thousand five hundred seventy five (2575) Consent Forms bore

a postmark of on or before July 7, 2006, the deadline or "Closing Date" set by the Court in its order date May 3, 2006. (b) Thirty three (33) Consent Forms were returned by mail but, due to a

postal error, bore no postmark. Twenty eight (28) of these Consent Forms were received either before the Closing Date or so shortly after that date that the parties have agreed they were mailed on time and should be considered timely. Five (5) were received too late after the Closing Date and were not accepted. (c) Seventy eight (78) Consent Forms were returned with postmarks

dated after the Closing Date. Each of these was forwarded to the Administrator for a determination as to whether the mailing addresses were correct and/or whether because of an incorrect address, the due date for that individual had been extended beyond the Closing Date (i.e., to 30 days after the Notice and Consent Form were remailed to a corrected address). (1) One (1) of these Consent Forms was timely under that

extended deadline. (2) Five (5) others were received from individuals whose

addresses were incorrect, but the original mailing had not been returned to the Administrator and hence could not be remailed by the Administrator. The parties agreed that these five (5) Consent Forms should be regarded as timely. (One of these was from a "Californiaonly adjuster" (discussed below) and has not been filed with the Court.) (3) The remaining seventy two (72) Consent Forms did not

involve an incorrect address and the parties have agreed that all of them should be considered untimely. (d) Two hundred thirty one (231) forms were received from individuals

with resident addresses in California. Of these, only nineteen (19) were found to
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have worked outside the State of California and were thus eligible for filing in this case. Of those nineteen (19), seventeen (17) were filed with this Court and two (2) were not because they had filed Consent Forms in the Rosa action previously. (e) Two hundred eighty seven (287) Consent Forms were received by

individuals who had already filed Consent Forms with this Court through the Rosa action. To avoid duplicates being filed, these forms were not filed with the Court. ["California-only Adjusters"] 5. The proposed collective action expressly excludes individuals who worked

in the State of California, but the manner in which Allstate's data was maintained made it impossible to reliably exclude from the mailing adjusters who had worked only in California. The mailing, therefore, was necessarily over-inclusive and the potential OptIns had to be screened to exclude those individuals who worked as adjusters only in that state ("California-only adjusters") during the tentatively relevant time period (from October 1, 1999 to present for Allstate adjusters and from January 1, 2000 to present for Encompass adjusters). 6. That screening process used the following two filters to screen the returned

Consent Forms: (a) Allstate has identified those individuals who were class members in

the California state-law case entitled Bednar v. Allstate (Los Angeles Superior Court Case No. BC 240813), which covered a class period running from November 27, 1996 through December 31, 2004. (Allstate began paying all of its California adjusters on an hourly basis effective January 1, 2005.). (b) Plaintiffs identified Consent Forms that bore California return

addresses. Plaintiffs advised Allstate of the names of the individuals involved and Allstate has checked its records to determine whether any of them worked as adjusters outside the State of California. 7. When applied to the returned Consent Forms, these filters identified two

hundred thirty one (231) individuals.
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(a)

According to Allstate's records, two hundred twelve (212) of the

individuals, who are identified in Exhibit B, are California-only adjusters who never worked as adjusters outside of California. With one exception, the Consent Forms of those identified as California-only adjusters have not been filed with the Court and are not part of the two thousand six hundred twenty five (2625) written consents identified in paragraph 3 that have been filed in this action. (b) Each of the remaining individuals spent at least some time since

October 1, 1999 working as an adjuster outside of California and their Consent Forms (with the exception of two, who had previously submitted Consent Forms in the Rosa action) have been filed with the Court and are included in the two thousand six hundred twenty five (2625) written consents identified in paragraph 3. (c) It remains possible that other Opt-Ins also worked part of their time

in California as well, but those names can be checked as the litigation proceeds; there is no need to do so at this time. 8. The parties jointly request that the Court authorize the following steps: (a) Each California-only adjuster shall be sent the Supplemental Notice

attached hereto as Exhibit C that effectively gives such individual thirty (30) days to provide information that would make him or her eligible to participate. (b) Any such individual who fails to provide such information shall be

excluded from the collective action. If such a person's Consent Form has already been filed, it shall be withdrawn from the Court's file and deemed as having never been filed. If such a person's consent form has not yet been filed, it shall not be. In either case, the individual involved will be considered to have not opted-in to the instant action and any rights they may have to overtime pay shall be thereafter determined accordingly, and each such person shall be notified accordingly. (c) If any such individual provides information that he or she worked as

an adjuster outside of California during the relevant time period, such person's
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consent shall remain (or shall be) filed and his or her actual work location(s) shall be determined as necessary later in the litigation. (d) The remaining Opt-Ins will be included in this case only for the time

each worked as an adjuster in a state other than California. There is no need to send any supplemental communication to these individuals at this time. 9. The parties acknowledge that further investigation regarding the remaining

Opt-Ins may determine that others should also be treated as California-only adjusters. Any such determination shall be made at a later date as the facts so warrant. [Duplicate Consent forms] 10. Twenty nine (29) Opt-Ins who submitted Consent Forms had previously

submitted written consents to participate in this matter. The parties agree that the statute of limitations for any such individual shall be determined in accordance with the earlier submitted consent and the later-filed duplicate Consent forms for these individuals have not been filed with the Court. WHEREFORE, the parties jointly request that the Court approve the steps set forth herein, including the dissemination of the proposed supplemental notice attached hereto as Exhibit C. DATED this 8th day of September, 2006.

By: s/Joel E. Krischer Joel E. Krischer LATHAM & WATKINS LLP Attorneys for Defendants Allstate Insurance Company, Allstate Property and Casualty Insurance Company, Allstate Indemnity Company, Karl Meckert and Kim Lowe

By: s/Kelly McInerney Kelly McInerney McINERNEY & JONES Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on September 8, 2006, I electronically transmitted the attached document described as JOINT REPORT TO COURT RE OPT-INS AND JOINT REQUEST FOR ORDER TO APPROVE SUPPLEMENTAL NOTICE TO CERTAIN OPT-INS 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 Joel E. Krischer Latham & Watkins 633 West Fifth Street, Suite 4000 Los Angeles, CA 90071 Telephone: 213-891-7939 Facsimile: 213-891-8763
Andrew Paley Seyfarth Shaw One Century Plaza, Suite 3300 2029 Century Park East Los Angeles, CA 90067 Telephone: 310-277-7200 Facsimile: 310-201-5219

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

Attorneys for Defendant Allstate George Sintsirmas, Esq. George Sintsirmas, LLC 6212 Coldstream Road Highland Heights, OH 44143 [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

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

By: s/Belinda Watson Legal Assistant to Kelly McInerney

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