JOINT STIPULATION OF SETTLEMENT AND RELEASES...JOINT STIPULATION OF SETTLEMENT AND RELEASE This Joint Stipulation of Settlement and Release (“Agreement”) is entered into between

JOINT STIPULATION OF SETTLEMENT AND RELEASE

This Joint Stipulation of Settlement and Release (“Agreement”) is entered into between

Western Federal Credit Union, on the one hand, and Edith Luna (the “Named Plaintiff”), on

behalf of herself individually and on behalf of a collective group of similarly situated

individuals, on the other hand.

Western Federal Credit Union and Named Plaintiff (collectively, the “Settling Parties”)

agree to do all things and procedures reasonably necessary and appropriate to obtain approval of

this Agreement in consideration for: (a) payment by Western Federal Credit Union of the

consideration expressed in this Agreement subject to the terms, conditions, and limitations of this

Agreement; (b) the release and dismissal with prejudice of all claims as set forth in this

Agreement; and (c) other valuable monetary and non-monetary consideration as set forth in this

Agreement. This Agreement is contingent upon approval by the Court and is entered into

voluntarily by the Settling Parties for settlement purposes only.

RECITALS

WHEREAS, Named Plaintiff has asserted claims against Western Federal Credit Union

under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., based on the alleged

misclassification of Named Plaintiff as exempt from overtime and the failure to pay overtime

compensation to Named Plaintiff and others similarly situated; and

WHEREAS, the purpose of this Agreement is to settle fully and finally all Released

Claims (as hereinafter defined) that Named Plaintiff and any individuals who opt in to the

Litigation (as defined below) may have against Western Federal Credit Union; and

DocuSign Envelope ID: 8313E4FE-0F32-47B3-8C57-4269EE7E0AE9

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WHEREAS, Western Federal Credit Union denies that it has committed any wrongdoing

or violated any federal, state or local laws pertaining to payment of wages or hours worked, and

further denies that it is liable or owes back wages or any overtime compensation to anyone with

respect to the alleged facts or causes of action asserted in the Litigation; and

WHEREAS, Named Plaintiff and Western Federal Credit Union agreed to engage in

discussions regarding the possibility of a voluntary resolution of the asserted claims; and

WHEREAS, the Settling Parties have fiercely disputed the factual and legal allegations,

negotiated the economic and non-economic terms of a potential settlement, and have reached an

accord resulting in this Agreement as a result of contested negotiations; and

WHEREAS, the Settling Parties agreed to settle and resolve any and all claims that

could be asserted in the Litigation pursuant to the terms of this Agreement, in order to avoid the

burden, expense, risks and uncertainty of litigation.

NOW, THEREFORE, in consideration of the mutual covenants and promises set forth

in this Agreement, as well as the good and valuable consideration provided for herein, and

intending to be legally bound, the Settling Parties hereto agree to a full and complete settlement

of the Litigation and release of claims on the following terms and conditions:

I. CONSENT TO COURT-FACILITATED NOTICE

A. Potential Claimants. For settlement purposes only, the Settling Parties agree that

Named Plaintiff and the “Potential Opt-In Plaintiffs” (as defined below) are similarly situated for

purposes of the FLSA and consent to Court-facilitated notice to Named Plaintiff and Potential

Opt-in Plaintiffs. Potential Opt-in Plaintiffs shall include Named Plaintiff and those individuals

who worked for Western Federal Credit Union as exempt Branch personnel (together,


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“Managers”) who worked in all states excluding California for at least one workweek during the

period from January 29, 2013 to March 3, 2017 (the “Applicable Class Period”). The Potential

Opt-In Plaintiffs worked a total of 3,366 workweeks during the Applicable Class Period.

B. Cooperation. The Settling Parties shall cooperate and present to the Court for its

consideration in connection with the approval of the Agreement and Court-facilitated notice such

information as may be reasonably requested by the Court for approving FLSA settlements and/or

facilitated notice.

II. SETTLEMENT APPROVAL PROCEDURE

A. Plaintiff’s Filing Requirements. On or before five (5) days after the execution of

this Agreement, Counsel for Named Plaintiff shall file in the Circuit Court of the Fifteenth

Judicial Circuit in and for Palm Beach County, Florida, the Complaint to initiate the lawsuit

between the Settling Parties (the “Litigation”). Counsel for Named Plaintiff shall also file within

five (5) business days after the filing of Defendant’s Answer, the Motion for Order Approving

Settlement of Collective Action and Authorizing Notice of Settlement and Opportunity to Submit

Consent to Join Claim Form and Release (“Consent Motion”), attaching this Agreement and its

exhibits, and a proposed Order on Consent Motion (the “Approval Order”).

B. Defendant’s Filing Requirements. Counsel for Defendant shall file its Answer to

the Complaint within five (5) business days after the filing of the Complaint.

C. Settlement Contingent on Approval. If the settlement is not approved and/or does

not become final for any reason, then this Agreement purporting to settle the Litigation shall

become null and void ab initio (except for this provision) and this Agreement shall have no

bearing on, and shall not be admissible in connection with, any subsequent litigation for any


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purpose, including without limitation, whether class certification would be appropriate under the

FLSA or any applicable state law.

III. MODE, CALCULATION AND TIMING OF PAYMENT OF CLAIMS

A. Notice of Claims

1. Within seven (7) days1 of entry of the Approval Order, Western Federal

Credit Union shall provide the Settlement Claims Administrator with an Excel chart listing the

name, Social Security Number, last known address, email address, weeks worked as a Manager

during the Applicable Class Period, and location(s) of employment for Named Plaintiff and each

Potential Opt-In Plaintiff. Plaintiffs’ Counsel shall also provide the Settlement Claims

Administrator with any updated address for Named Plaintiff. Prior to the mailing of the Notice

Packet to Named Plaintiff and Potential Opt-In Plaintiffs, the Settlement Claims Administrator

shall attempt to confirm the accuracy of the addresses through the United States Post Office’s

National Change of Address database and shall mail the Notice Packet to any updated address

obtained therefrom.

2. Within forty (40) days of the entry of the Approval Order, the Settlement

Claims Administrator shall mail, in one mailing, all “Notice Packets” to Named Plaintiff and

each Potential Opt-In Plaintiff.

3. Notice Packets to the Named Plaintiff and Potential Opt-In Plaintiffs who

are currently employed by Western Federal Credit Union as of the date of execution of this

agreement (“Current-Employee Potential Opt-In Plaintiffs”) will include a fully completed

1 All time periods provided by this Agreement are stated in calendar days, not business days,

unless otherwise indicated.


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“Notice of Settlement” in the form attached hereto as Exhibit “A” hereto, which provides a

summary of the basis for settlement and the amount of the Current-Employee Potential Opt-In

Plaintiff’s Individual Settlement Payment (as calculated pursuant to paragraph III.E.2, below) as

well as his or her Individual Settlement Payment check. Said checks shall contain on the back,

under the endorsement line, the following language:

“THIRD PARTY ENDORSEMENT PROHIBITED

ENDORSEMENT BY NAMED PAYEE IS REQUIRED

This instrument is void if not cashed before [DATE]

By signing and/or endorsing this check, you are claiming your Individual

Settlement and you are consenting to join the settled lawsuit entitled Luna v.

Western Federal Credit Union, Case No. [INSERT] (Fla. Cir. Ct., Palm Beach

Cty), which was brought to recover wages under the Fair Labor Standards Act

and state law. By signing/endorsing this check, you acknowledge that you are

releasing the Released Claims against Western Federal Credit Union, as set

forth in the Notice of Settlement and Joint Stipulation of Settlement and

Release. You agree to be bound by this Settlement and not to sue or otherwise

make a claim against any of the Releasees as to any of the Released Claims.”

4. Notice Packets to Potential Opt-In Plaintiffs who are not currently

employed by Western Federal Credit Union will include a “Notice of Settlement,” in the form

attached hereto as Exhibit “B,” and a “Consent to Join Claim Form and Release,” in the form

attached as Exhibit “C” hereto. The Consent to Join Claim Form and Release shall inform

Potential Opt-In Plaintiffs who are not currently employed by Western Federal Credit Union of


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the amount of their potential Individual Settlement Payment (as calculated pursuant to paragraph

III.E.2 below) and that in order to receive the Individual Settlement Payment he or she must

complete and sign the Consent to Join Claim Form and Release and ensure it is submitted

electronically through the Class Action Administrator’s website or postmarked or received by

mail, email, or facsimile by the Settlement Claims Administrator on or before sixty (60) days

after the date the Notice Packets were initially mailed to such Potential Opt-In Plaintiffs (the

“Claim Bar Date”).

5. To the extent there are matters not covered in the Notice Packets that are

covered in this Agreement, or to the extent the Notice Packets are inconsistent with this

Agreement, this Agreement shall govern and control.

6. If any Notice Packet is returned as undeliverable to a Potential Opt-In

Plaintiff, the Settlement Claims Administrator shall promptly attempt to locate such Potential

Opt-In Plaintiff through customary skip-tracing and shall mail an additional Notice Packet to

such person to any address obtained by way of skip-trace within five (5) business days. Any

notices returned undeliverable shall be traced up to two times to obtain a new address and be re-

mailed. To the extent any mailed Notice is returned as undeliverable, such person shall be

provided the later of thirty (30) days from any re-mailing of the Notice or the Claim Bar Date (a

“Re-mailing Opt-in Period”) to submit their claim form.

7. Thirty (30) days after the initial mailing of the Notice Packets, the Claims

Administrator shall send via postcard, First Class United States mail postage prepaid, a reminder

to Named Plaintiff and Potential Opt-In Plaintiffs who have not yet cashed their settlement check

or returned their Consent to Join Claim Form and Release of their eligibility to participate in the


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Settlement by signing their check or signing and returning the previously mailed Consent to Join

Claim Form and Release.

8. In the event that Plaintiffs’ Counsel or the Settlement Claims Administrator

is contacted by a Potential Opt-In Plaintiff before the Claim Bar Date and the Potential Opt-In

Plaintiff indicates that he or she did not receive the Notice Packet, the Settlement Claims

Administrator shall mail and/or email an additional Notice Packet to the mailing address and/or

email address provided by the Potential Opt-In Plaintiff and provide any such person a

Remailing Opt-In Period.

9. Within seven (7) business days of receiving a timely Consent to Join Claim

Form and Release that does not contain a signature or sufficient information to identify the

Potential Opt-In Plaintiff, the Settlement Claims Administrator shall mail to the Potential Opt-In

Plaintiff a letter requesting the information that was not provided and giving the Potential Opt-In

Plaintiff a Remailing Opt-In Period. Any Potential Opt-In Plaintiff who fails to respond timely

to such a cure letter will not be considered a Qualified Claimant (as defined below).

10. In the event of any dispute over a Potential Opt-In Plaintiff’s weeks worked

as a Manager during the Applicable Class Period and/or the late submission of any claims, the

Settling Parties will meet and confer in good faith in an effort to resolve the dispute, and if the

Settling Parties are unable to reach an agreement, the Settlement Claims Administrator shall

decide the dispute, and issue a non-appealable, final decision as to the total amount due or

timeliness of the claim. To the extent a claim is submitted late for which there is a good faith

explanation to support the untimely submission, it will be presumed that the Settlement Claims

Administrator will accept the claim except that no late claim shall be accepted after final


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reversion of any remaining funds in the Qualified Settlement Fund to Western Federal Credit

Union (as described in paragraph III.H below). Additionally, in the case of a dispute over a

Potential Opt-In Plaintiff’s weeks worked as a Manager during the Applicable Class Period,

Western Federal Credit Union’s records shall control and will have a rebuttable presumption of

correctness.

11. The Named Plaintiff and Potential Opt-In Plaintiffs who are currently

employed by Western Federal Credit Union who cash their settlement checks, and Potential Opt-

In Plaintiffs who were formerly employed by Western Federal Credit Union who timely return

completed and executed Consent to Join Claim Forms and Releases will be considered

“Qualified Claimants.”

12. Within ten (10) days after the Claim Bar Date or Remailing Opt-In Period

(whichever is later), the Settlement Claims Administrator shall provide to Western Federal

Credit Union’s Counsel and Plaintiffs’ Counsel a list of Qualified Claimants and shall provide

electronic copies of all timely received and completed Consent to Join Claim Forms and

Releases.

13. At the conclusion of the settlement administration process, the Settlement

Claims Administrator shall maintain an electronic copy of all Consent to Join Claim Forms and

Releases and negotiated settlement checks received by Named Plaintiff and Potential Opt-In

Plaintiffs and shall provide the original Consent to Join Claim Forms and Releases and copies of

negotiated settlement checks to Counsel for Western Federal Credit Union. The Settlement

Claims Administrator shall also provide Counsel for Western Federal Credit Union and

Plaintiffs’ Counsel a register listing all Qualified Claimants and the payment amount made to


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each Qualified Claimant, including the amount of tax withholdings and the employer’s share of

payroll taxes.

B. Creation and Implementation of a Qualified Settlement Fund

1. Establishing the Qualified Settlement Fund. The Gross Settlement Fund

will be deposited in an account titled Western Federal Credit Union Non-California Managers

Settlement Fund (the “Settlement Fund”), intended by the Settling Parties to be a “Qualified

Settlement Fund” as described in Section 468B of the Internal Revenue Code of 1986, as

amended, and Treas. Reg. Section 1.468B-1, et seq. The Settlement Fund shall be established as

a Qualified Settlement Fund within the meaning of Section 468B of the Internal Revenue Code

of 1986, as amended, the Treas. Reg. Section 1.468B-1, et seq., and shall be administered by the

Settlement Claims Administrator, subject to the ultimate authority of the Court.

2. Administering the Settlement Fund. The Settlement Claims Administrator

shall serve as Trustee of the Settlement Fund and shall act as a fiduciary with respect to the

handling, management, and distribution of the Settlement Fund, including the handling of tax-

related issues and payments. The Settlement Claims Administrator shall act in a manner

necessary to qualify the Settlement Fund as a Qualified Settlement Fund and to maintain that

qualification. The Settling Parties shall cooperate to ensure such treatment and shall not take a

position in any filing or before any tax authority inconsistent with such treatment.

C. Gross Settlement Fund

1. Gross Settlement Fund. In consideration for the dismissal with prejudice of

the Litigation as well as the release of claims effected by this Agreement and other good and

valuable consideration, within five (5) business days of entry of the Approval Order, Western


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Federal Credit Union shall deposit into the QSF by wire transfer a maximum of Two Hundred

Twelve Thousand Six Hundred and Fifty Dollars ($212,650.00) (the “Gross Settlement Fund”) to

settle the Litigation. With the exception of the Employer’s Share of Payroll Taxes, the Gross

Fund shall be all that Western Federal Credit Union or Released Parties (as defined below) shall

pay to settle the Litigation and assumes that 100% of Named Plaintiff and Potential Opt-in

Plaintiffs become Qualified Claimants. The Gross Fund is exclusive of any and all interest or

investment income accrued, which accrued interest/income shall inure to Western Federal Credit

Union.

2. Service Payment. From the Gross Settlement Fund, Plaintiffs’ Counsel

shall seek a Service Payment of $10,000.00 to Named Plaintiff Edith Luna (the “Service

Payment Recipient”) as payment for her involvement in commencing and discovering the claims

represented in this Litigation and her involvement in obtaining this settlement for all Potential

Opt-In Plaintiffs. Western Federal Credit Union will not oppose such motion. The settlement is

not conditioned upon the Court’s approval of the requested Service Payment. The Settlement

Claims Administrator will not withhold taxes from the Service Payment, but will report the

Service Payment on IRS Form 1099s. Any amount of the requested Service Payment not

approved by the Court shall be included as part of the Net Settlement Fund.

3. Attorneys’ Fees and Costs Amounts. From the Gross Settlement Fund,

Plaintiffs’ Counsel shall make an application to the Court for an award of attorneys’ fees and

costs of $110,000.00 (the “Attorneys’ Fees and Litigation Costs”). Western Federal Credit

Union will not oppose Plaintiffs’ Counsel’s motion for Attorneys’ Fees and Litigation Costs.

The settlement is not conditioned upon the Court’s approval of Plaintiffs’ Counsel’s petition for


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Attorneys’ Fees and Litigation Costs in the stated amounts. Payment of such approved

attorneys’ fees, expenses, and costs to Plaintiffs’ Counsel shall be made in accordance with this

Agreement and shall constitute full satisfaction of any and all obligations by Western Federal

Credit Union to pay any person, attorney or law firm for attorneys’ fees, expenses or costs

incurred on behalf of Named Plaintiff, any Potential Opt-In Plaintiffs, and any Qualified

Claimants. The Settlement Claims Administrator shall report the payment of these fees,

expenses and costs to Plaintiffs’ Counsel on an IRS Form 1099. Any amount of the attorneys’

fees and costs not approved by the Court shall be included as part of the Net Settlement Fund.

4. Settlement Administration Costs. All Settlement Administration Costs,

estimated to be $8,500.00, shall be paid from the Gross Settlement Fund. Any amount of the

Gross Settlement Fund allocated to Settlement Administration Costs that is not actually incurred

as a cost shall be included as part of the Net Settlement Fund. If the Settlement Administration

Costs exceed $8,500.00, Western Federal Credit Union shall pay the additional costs separate

from the Gross Settlement Fund.

D. Timing of Payments from Gross Settlement Fund. Within forty days of

entry of the Approval Order, the Settlement Claims Administrator shall: (1) pay Plaintiffs’

Counsel by wire transfer the amount of Attorneys’ Fees and Litigation Costs approved and

ordered by the Court, (2) pay Named Plaintiff by federal express overnight delivery the amount

of the Service Payment approved and ordered by the Court, unless Named Plaintiff has not yet

satisfied the requirement of paragraph IV.B herein, in which case the Service Payment will be

paid within five (5) days of satisfaction of that provision, and (3) deduct the approved Settlement

Administration Costs for its services.


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E. Net Settlement Fund

1. Net Settlement Fund. The “Net Settlement Fund” means the remainder of

the Gross Settlement Fund after deductions for: (i) the Service Payment awarded by the Court;

(ii) Attorneys’ Fees and costs awarded by the Court; and (iii) the Settlement Administration

Costs.

2. Allocation of Net Settlement Fund. The Settlement Claims Administrator

shall issue “Individual Settlement Payment” checks from the Net Settlement Fund to Named

Plaintiff, each Current-Employee Potential Opt-In Plaintiff, and each Qualified Claimant not

currently employed by Western Federal Credit Union as of the date of execution of this

Agreement (a “Former-Employee Qualified Claimant”). The amount of each Individual

Settlement Payment shall be determined as follows:

(a) Each Individual Settlement Payment check shall equal $25.00 per

Workweek (as defined below) in which the payee was employed by Western Federal Credit

Union as a Manager.

(b) A “Workweek” shall mean each calendar week during the

Applicable Class Period during which the Potential Opt-in Plaintiff was employed by Western

Federal Credit Union as a Manager. If a Potential Opt-In Plaintiff was employed as a Manager at

least one (1) day in a calendar week, the week shall be rounded up to one (1) full Workweek.

The calculation of all Workweeks shall be based on Western Federal Credit Union’s business

records provided by Western Federal Credit Union to the Settlement Claims Administrator

pursuant to paragraph III.A.1.

(d) The amount of all Individual Settlement Payments not claimed by


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a Qualified Claimant shall revert to Western Federal Credit Union pursuant to paragraph III.H

below.

F. Payments to Qualified Claimants

1. Timing of Payments to Current Employees. Within forty (40) days of entry

of the Approval Order, the Settlement Claims Administrator will mail Individual Settlement

Payments with the Notice Packet by U.S. First Class Mail to Current-Employee Potential Opt-In

Plaintiffs to his or her last known address, or such other address he or she provided to the

Settlement Claims Administrator.

2. Timing of Payments to Former Employees. Within fifteen (15) business

days of the Claim Bar Date or the expiration of the Re-mailing Opt-In Period, whichever is later,

the Settlement Claims Administrator shall mail Individual Settlement Payments by U.S. First

Class Mail to each Former-Employee Qualified Claimant to his or her last known address or

such other address he or she provided to the Settlement Claims Administrator.

3. Taxes on the Individual Settlement Payments. The Individual Settlement

Payments shall be allocated 50 percent to back wages and 50 percent to liquidated damages and

interest. The back wages shall be subject to all required employee-paid payroll taxes (federal

income taxes, state income taxes, employee’s share of FICA and FUTA taxes, and other state or

local-specific statutory deductions) and other authorized or required deductions (garnishments,

tax liens, child support, etc.). The liquidated damages and interest and any Service Payment

shall be treated as non-wage income. The Settlement Claims Administrator shall report the back

wage payments to the Internal Revenue Service (“IRS”) on IRS Form W-2 and shall report the

liquidated damages, interest and Service Payments on IRS Form 1099.


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4. Tax Advice. Named Plaintiff acknowledges and agrees that she has not

relied upon any advice from Western Federal Credit Union or Plaintiff’s Counsel as to the

taxability of the payments received pursuant to this Agreement.

5. Negotiation of Settlement Checks. Any and all Individual Settlement

Payment checks shall be valid for one hundred twenty (120) days after the date on which it was

issued (the “Check Issuance Date”). After 120 days of the Check Issuance Date, the check will

be void and the gross amount of the Individual Settlement Payment shall revert to Western

Federal Credit Union and the release executed by any Former-Employee Qualified Claimant

shall remain in effect.

G. Payroll Tax Withholding and Reporting.

1. Employee Payroll Taxes. The Settling Parties recognize that the back pay

awards to Qualified Claimants will be subject to applicable tax withholding and reporting and

employer payroll taxes. The Settlement Claims Administrator shall be responsible for

withholding and timely remitting and reporting to the appropriate taxing authorities the

employee’s share of payroll taxes from the back pay award of each Qualified Claimant.

2. Employer Payroll Taxes. The Settlement Claims Administrator shall

determine the aggregate amount owed as the employer’s share of payroll taxes imposed by

applicable law on Western Federal Credit Union (i.e. the employer’s share of all FICA, FUTA,

SUTA, Medicare, and/or state unemployment taxes, collectively referred to herein as the

“Employer’s Share of Payroll Taxes”) for the back wage payment for each Qualified Claimant

and provide that number to Western Federal Credit Union after the expiration of the latest

Individual Settlement Payment check (as described in paragraph III.F.5, above) or earlier if


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required by law. Within thirty (30) days of receiving the aggregate amount owed in Employer’s

Share of Payroll Taxes from the Settlement Claims Administrator, or earlier if required by law,

Western Federal Credit Union shall pay by wire transfer to the QSF the aggregate funds

necessary to pay the Employer’s Share of Payroll Taxes, which shall be separate from and in

addition to the Gross Settlement Fund.

H. Timing of Reversion to Western Federal Credit Union

The Settling Parties agree that any funds remaining from the Gross Settlement Fund

and/or the Net Settlement Fund shall revert to Western Federal Credit Union within five (5)

business days after the latest of: (1) the date on which all Individual Settlement Payment checks

become void (see paragraph III.F.5); (2) payment to Plaintiffs’ Counsel for all attorneys’ fees,

costs, and litigation expenses approved by the Court; (3) payment to the Settlement Claims

Administrator for all Settlement Administration Costs incurred by the Settlement Claims

Administrator and approved by the Court; (4) payment to Named Plaintiff of the Service

Payment; and (5) payment of all applicable taxing agencies for all applicable federal, state and

local income taxes, and all federal and state payroll taxes required to be withheld and/or paid by

Western Federal Credit Union and/or the QSF.

I. Settlement Claims Administration

1. Selection of Settlement Claims Administrator. The Settling Parties select

Simpluris, Inc. to serve as Settlement Claims Administrator.

2. Settlement Claims Administrator’s Responsibilities. The Settlement

Claims Administrator shall be responsible for: (a) determining and finalizing the calculations of

the Individual Settlement Payments, the tax withholding amounts, and employer payroll tax


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amounts for Named Plaintiff, Potential Opt-In Plaintiffs, and Qualified Claimants, as applicable

(including with respect to the Individual Settlement Payment for purposes of the Notice and the

final settlement amounts for purpose of issuing the Individual Settlement Payments); (b)

preparing, printing and disseminating to Named Plaintiff and Potential Opt-In Plaintiffs the

Notice Packet and return envelope and the reminder notice in a final form and format approved

by Counsel for Western Federal Credit Union and Plaintiffs; (c) copying counsel for all Settling

Parties on material correspondence and promptly notifying all counsel for the Settling Parties of

any material requests or communications made by any Settling Party or Potential Opt-In Plaintiff

who receives Notice; (d) maintaining a website through which Potential Opt-In Plaintiffs may

submit and electronically sign Consent to Join Claim Forms and Releases; (e) monitoring and

maintaining a toll-free number; (f) receiving and reviewing the Consent to Join Claim Forms and

Releases submitted by Named Plaintiff and Potential Opt-In Plaintiffs to determine eligibility for

payment; (g) determining the Settlement Payment for each Potential Opt-In Plaintiff in

accordance with this Agreement; (h) mailing the settlement checks to Qualified Claimants; (i)

wiring Plaintiffs’ Counsel’s attorneys’ fees, expenses, and costs and mailing the Service Payment

and Settlement Payments in accordance with this Agreement and Order of the Court; (j)

determining the aggregate amount of employer payroll taxes owed and remitting all payroll tax

obligations of Western Federal Credit Union in accordance with this Agreement and all

applicable laws; (k) issuing W-2 and 1099 Forms for all amounts paid to Qualified Claimants;

(l) ascertaining current address and addressee information for each Notice Packet returned as

undeliverable; (m) responding to inquiries of Named Plaintiff and Potential Opt-In Plaintiffs

regarding the Agreement and procedures for returning Consent to Join Claim Forms and


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Releases; (n) referring to Plaintiffs’ Counsel all inquiries by Named Plaintiff and Potential Opt-

In Plaintiffs the Settlement Claims Administrator cannot resolve and/or which involve matters

not within the Settlement Claim Administrator’s duties specified herein; (o) responding to

inquiries of Plaintiffs’ or Western Federal Credit Union’s Counsel; (p) promptly apprising

counsel for the Settling Parties of the activities of the Settlement Claims Administrator; (q)

maintaining adequate records of its activities, including the date of the mailing of the Notice

Packets and receipt of Consent to Join Claim Forms and Releases, dates of Remailing Opt-In

Periods, returned mail and other communications and attempted written or electronic

communications with Named Plaintiff and Potential Opt-In Plaintiffs, Check Issuance Dates, and

providing Counsel with weekly reports regarding the same; (r) confirming in writing to

Plaintiffs’ and Western Federal Credit Union’s Counsel and the Court its completion of the

administration of the settlement and retaining copies of all endorsed settlement checks; (s) timely

responding to communications from the Settling Parties or their counsel; and (t) such other tasks

as customarily and regularly performed by a settlement administrator and as the Settling Parties

mutually agree.

3. Settlement Fund Fees and Expenses. All fees, expenses, and costs of the

Settlement Claims Administrator related directly or indirectly to its duties under this Agreement,

including but not limited to all fees, expenses, and costs in connection with the Gross Settlement

Fund and Net Settlement Fund, and those duties related to notice, check cutting and mailing,

claims processing, reports to counsel, court filings, legal and accounting advice relating to the

establishment of the Qualified Settlement Fund and tax treatment and tax reporting of awards to

Qualified Claimants, preparation of tax returns (and the taxes associated with such tax returns as


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defined below), calculating the estimated settlement payments and final settlement payment

amounts, and any other related duties (hereinafter collectively referred to as the “Settlement

Administration Costs”) shall be paid from the Settlement Fund after court approval.

4. Reporting by Settlement Claims Administrator. Throughout the period of

claims administration, the Settlement Claims Administrator will provide such reports to the

Settling Parties upon request by either Settling Party, regarding the status of the mailing of the

Notice Packets to Named Plaintiff and Potential Opt-In Plaintiffs, the claims administration

process, the receipt of Consent to Join Claim Forms and Releases, and distribution of the

Settlement Checks or any other aspect of the claims administration process.

5. Communication with Western Federal Credit Union and Counsel. Western

Federal Credit Union, Western Federal Credit Union’s Counsel, and Plaintiffs’ Counsel are

authorized to communicate directly with the Settlement Claims Administrator to expedite the

settlement administration process.

IV. RELEASE

A. Release By Qualified Claimants. Conditioned upon the Court’s entry of the

Approval Order, and in exchange for the monetary consideration recited in this Agreement,

Named Plaintiff and all Qualified Claimants do hereby agree to waive, release and forever

discharge Western Federal Credit Union, including its parents, subsidiaries, affiliates, divisions,

predecessors, successors and assigns, and each of their respective present and former officers,

directors, shareholders, employees, and agents (collectively with Western Federal Credit Union,

the “Released Parties”) from any and all overtime and wage-related claims that accrue or accrued

during their employment as Managers, relating back to the full extent of the longest applicable


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state and federal statute of limitations and continuing through March 3, 2017, including, without

limitations, all state and federal claims for unpaid overtime wages, straight-time wages, and

related claims for penalties, interest, liquidated damages, attorneys’ fees, costs, and expenses

under the FLSA, as well as all such claims under state law and any other state law claim they

could have alleged based on the allegation that they were misclassified as exempt from state

overtime pay requirements. This includes, but is not limited to other claims that may be brought

by a nonexempt employee, such as claims that relate to meal and rest breaks, reporting of wage

information, and untimeliness of pay (together, “Released Claims”). The Release is intended to

extinguish all wage-related claims that could be stated based on the allegations of

misclassification as exempt Managers under state and federal law during the Applicable Class

Period.

A short form description of the Released Claims will be included in the Notice of Settlement.

B. Release by Service Payment Recipient. The Service Payment Recipient

accepting a Service Payment shall execute a General Release in the form attached hereto as

Exhibit “D.”

V. NOTICES

All notices, requests, demands and other communications required or permitted to be

given pursuant to this Agreement shall be in writing and shall be delivered personally or mailed,

postage prepaid, by first-class mail to the undersigned persons at their respective addresses as set

forth herein:

Counsel for Plaintiff: Gregg I. Shavitz, Esq.

Shavitz Law Group, P.A.

1515 South Federal Highway, Suite 404


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Boca Raton, FL 33432

Tel: (561) 447-8888

Fax: (561) 447-8831

and

Justin M. Swartz, Esq.

Outten & Golden LLP

685 Third Ave., 25th Floor

New York, NY 10017

Tel: (212) 245-1000

Fax: (646) 509-2057

Counsel for Western Federal Credit Union: Glenn Briggs, Esq.

Kading Briggs, LLP

100 Spectrum Center Drive, Suite 800

Irvine, California 92618

Tel: (949) 450-8040

Fax: (949) 450-8033

VI. REPRESENTATION BY COUNSEL

All of the Settling Parties acknowledge that they have been represented by counsel

throughout all negotiations that preceded the execution of this Agreement and that this

Agreement has been executed with the consent and advice of counsel.

VII. NO ADMISSION OF LIABILITY

Western Federal Credit Union enters into this Agreement to avoid further expense and

disruption to its business. The Settling Parties acknowledge and agree that liability for the

actions that are the subject matter of this Agreement are denied and disputed by Western Federal

Credit Union. This Agreement and the settlement are a compromise and shall not be construed

as an admission of liability at any time or for any purpose, under any circumstances, by the

Settling Parties to this Agreement.


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VIII. MODIFICATION OF AGREEMENT

This Agreement may not be modified or amended except in writing, signed by the

affected Settling Parties or the respective counsel of record for the Settling Parties and as

approved by the Court.

IX. CONSTRUCTION AND INTERPRETATION

A. Entire Agreement. This Agreement constitutes the entire agreement between the

Settling Parties with respect to the subject matter contained herein and shall supersede all prior

and contemporaneous negotiations between the parties. This Agreement shall be construed as a

whole according to its fair meaning and intent, and not strictly for or against any party,

regardless of who drafted or who was principally responsible for drafting this Agreement, or any

specific term or condition thereof. The Named Plaintiff and Western Federal Credit Union

participated in the negotiation and drafting of this Agreement and had available to them the

advice and assistance of independent counsel. As such, neither Named Plaintiff nor Western

Federal Credit Union may claim that any ambiguity in this Agreement should be construed

against the other.

B. Cooperation and Further Acts. The Parties shall reasonably cooperate with each

other and shall use their reasonable best efforts to obtain the Court’s approval of this Agreement

and all of its terms. Each party, upon the request of any other party, agrees to perform such

further acts and to execute and deliver such other documents as are reasonably necessary to carry

out the provisions of this Agreement.

C. No Reliance on Representations or Extrinsic Evidence. Except as expressly

provided herein, this Agreement has not been executed in reliance upon any other oral or written


Page 22 of 25

representations or terms, and no such extrinsic oral or written representations or terms shall

modify, vary or contradict its terms. In entering into this Agreement, the Settling Parties agree

that this Agreement is to be construed according to its terms and may not be varied or

contradicted by extrinsic evidence.

D. Controlling Law. This Agreement shall be subject to, governed by, construed,

enforced and administered in accordance with the laws of the State of Florida, both in its

procedural and substantive aspects, and without regard for the principle of conflict of laws, and

shall be subject to the continuing jurisdiction of the Circuit Court of the Fifteenth Judicial Circuit

in and for Palm Beach County, Florida.

E. Severability. If any provision of this Agreement is held by a court of competent

jurisdiction to be void, voidable, unlawful or unenforceable, except the Release, the remaining

portions of this Agreement will remain in full force and effect to the extent that the effect of the

Agreement remains materially the same and the obligations of the Settling Parties remain

materially the same.

X. COUNTERPARTS

This Agreement, any amendments or modifications to it, and any other documents

required or contemplated to be executed in order to consummate this Agreement, may be

executed in one or more counterparts, each of which shall be deemed an original of this

Agreement. All counterparts of any such document together shall constitute one and the same

instrument. A photocopy, facsimile, or digital image of an executed counterpart shall be

enforceable and admissible as an original.


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XI. BINDING EFFECT

This Agreement is binding upon and shall inure to the benefit of the Settling Parties to

this Agreement. Without limiting the foregoing, this Agreement specifically shall inure to the

benefit of Western Federal Credit Union as well as its present and former owners, stockholders,

predecessors, successors, joint ventures, assigns, agents, directors, officers, board members,

employees, representatives, insurers, attorneys, parents, subsidiaries, benefit plans, plan

fiduciaries, affiliated divisions and companies, and all persons acting by, through, under or in

concert with any of them. Also without limiting the foregoing, this Agreement shall be binding

upon the heirs, assigns, administrators, executors, beneficiaries, conservators, and successors of

all Qualified Claimants.

XII. ATTORNEY FEES, COSTS AND EXPENSES

Except as otherwise specifically provided herein, the Settling Parties and all Qualified

Claimants shall bear responsibility for their own attorneys’ fees, costs and expenses, taxable or

otherwise, incurred by them or arising out of this litigation and shall not seek reimbursement

thereof from any party to this Agreement. However, in the event of any dispute to enforce the

terms of this Agreement, the prevailing party shall be entitled to an award of their reasonable

attorneys’ fees and costs from the non-prevailing party.

XIII. AUTHORITY OF COUNSEL

A. Facsimile, Electronic, and Email Signatures. Any Settling Party may execute this

Agreement by signing or by causing its counsel to sign on the designated signature block below

and transmitting that signature page via facsimile, email, or other electronic means to counsel for

the other Settling Party. Any signature made and transmitted by facsimile, email, or other


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electronic means for the purpose of executing this Agreement shall be deemed an original

signature for purposes of this Agreement and shall be binding upon the Settling Party whose

counsel transmits the signature page by facsimile or email.

B. Voluntary Signature. All Settling Parties agree that they have signed this

Agreement, or authorized their counsel to sign this Agreement on their behalf, knowingly,

voluntarily, with full knowledge of its significance, and without coercion.

C. Warranty of Counsel. Plaintiffs’ Counsel warrant and represent that they are

expressly authorized by Named Plaintiff to take all appropriate action required or permitted to be

taken pursuant to this Agreement in order to effectuate its terms. Counsel for Western Federal

Credit Union warrant and represent that they are authorized to take all appropriate action

required or permitted to be taken by Western Federal Credit Union pursuant to this Agreement in

order to effectuate its terms.

XIV. CONTINUING JURISDICTION

The Parties hereto agree to move for the Circuit Court of the Fifteenth Judicial Circuit in

and for Palm Beach County, Florida to retain continuing jurisdiction to construe, interpret and

enforce the provisions of this Agreement; to supervise the administration and distribution of the

resulting settlement funds; and to hear and adjudicate any dispute or litigation arising from or

related to this Agreement or the issues of law and facts asserted in the collective action litigation.

XV. EFFECT OF NON-APPROVAL

In the event that the Agreement is not approved by the Court for any reason in the form

submitted by the Settling Parties, the Settling Parties will attempt to address any concerns raised

by the Court and resubmit a revised settlement agreement if possible. If the Settling Parties


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cannot agree on a revised settlement agreement or if the Court denies the approval of a

renegotiated settlement agreement, this Agreement or the re-negotiated agreement shall be

terminated as of the date the Court’s order denying approval of the Agreement or renegotiated

agreement was entered. In such event, the Settling Parties shall immediately file a joint

stipulation for dismissal without prejudice. Upon termination of this Agreement or any

renegotiated agreement: (A) This Agreement and, if applicable, the renegotiated agreement shall

have no force or effect and no Settling Party shall be bound by any of its terms; (B) the

stipulation that the Potential Opt-in Plaintiffs are similarly situated to Named Plaintiff under 29

U.S.C. Section 216(b) and any other law and the releases given shall be null and void; (C)

Western Federal Credit Union shall retain the right to remove any newly-filed case, to contest

whether the case should be maintained as a class or collective action, and to contest the merits of

the claims being asserted in the case; and (D) nothing in this Agreement shall be used or

construed by or against any party as a determination, admission, or concession of any issue of

law or fact in the litigation; and the Settling Parties do not waive, and instead expressly reserve,

their respective rights with respect to the prosecution and defense of the litigation.

DATED: October ___, 2017

WESTERN FEDERAL CREDIT UNION:

By: ____________________________________

Its: ____________________________________

DATED: October ___, 2017

EDITH LUNA

____________________________________


31

Documents

JOINT STIPULATION OF SETTLEMENT AND RELEASES...JOINT STIPULATION OF SETTLEMENT AND RELEASE This Joint Stipulation of Settlement and Release (“Agreement”) is entered into between