Motion_re_motion_for_preliminary_approval_of_class_action_settlementMotionCal. Super. - 2nd Dist.November 7, 2019Electronically FILE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 by Superior Court of California, County of Los Angeles on 04/06/2020 03:21 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Vargas,Deputy Clerk Elliot J. Siegel (Bar No. 286798) elliot@kingsiegel.com Julian Burns King (Bar No. 298617) julian@kingsiegel.com KING & SIEGEL LLP 724 South Spring Street, Ste. 201 Los Angeles, CA 90014 tel: (213) 465-4802 fax: (213)465-4803 Attorneys for Plaintiff and the Putative Class SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES Shaquille Oliver, individually and on behalf of | CASE NO. 19STCV40123 all others similarly situated individuals; [Assigned for all purposes to The Honorable Danie Plaintiff, S. Murphy, Dept. 32] CLASS ACTION VS. PLAINTIFF’S NOTICE OF MOTION AND MEMORANDUM IN SUPPORT OF MOTION FOR: (1) PRELIMINARY APPROVAL OF CLASS Defendants. ACTION SETTLEMENT; (2) APPROVAL OF NOTICE TO CLASS MEMBERS AND RELATED MATERIALS; (3) APPROVAL OF SETTLEMENT ADMINISTRATOR; AND (4) SETTING HEARING FOR FINAL APPROVAL OF SETTLEMENT The J. Paul Getty Trust, and Does 1-10, inclusive; Date: April 29, 2020 Time: 8:30 a.m. ReservationID: 883719402483 _i- PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that, on April 29, 2020, or the earliest available date to be assigned by the Court, in Department 32 of the Los Angeles County Superior Court for the State of California, located at the Stanley Mosk Courthouse, before the Honorable Daniel S. Murphy pursuant to § 382 of the California Code of Civil Procedure, Plaintiff Shaquille Oliver (“Named Plaintiff,” “Plaintiff,” or “Oliver”) on behalf of himself individually and on behalf of all members of the Settlement Class as hereinafter defined, hereby moves this Court for entry of an Order: I. Certifying the Class for purposes of settlement; 2. Preliminarily appointing Plaintiff as Class Representative for purposes of settlement; 3. Appointing Elliot J. Siegel and Julian Burns King of King & Siegel LLP as Class Counsel for purposes of settlement; 4. Preliminarily approving the Settlement as fair, adequate, and reasonable, based upon the terms set forth in the Joint Stipulation of Settlement and Release of Class Action (“Settlement Agreement” or “Settlement”), including payment by The J. Paul Getty Trust (“Defendant or “The Trust”) of the non-reversionary Gross Settlement Amount (“GSA”) of $775,000.00; 5. Preliminarily approving payment of reasonable attorneys’ fees and costs from the Gross Settlement Amount in an amount of $258,333.33 in attorneys’ fees (i.e., one-third of the Settlement Amount), plus reasonably incurred litigation costs of up to $15,000.00; 6. Preliminarily approving a Class Representative enhancement payment to Plaintiff Shaquille Oliver in an amount of up to $10,000.00, which is to be paid out of the Gross Settlement Amount, to compensate him for the burdens, responsibilities, time, effort and risks involved in coming forward on behalf of the Class; 7. Preliminarily approving payment to the Labor and Workforce Development Agency (“LWDA”) in the amount of $18,750.00 from the Gross Settlement Amount; 8. Preliminarily approving CPT Group, Inc. (“CPT Group”) as Settlement Administrator and further approving the distribution of up to $15,000.00 from the Gross Settlement Amount to cover the Settlement Administrator’s expenses in administering this Settlement; ii - PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. Approving the proposed Notice of Proposed Class Action Settlement (“Class Notice”) and ordering it be disseminated to the Class as provided in the Settlement Agreement; and 10. Setting a date for a final fairness hearing to determine, following dissemination of notice to the Class, whether to grant final approval of the Settlement. This motion is based upon this Notice of Motion and Motion; the Memorandum of Points and Authorities in Support thereof; the declarations of Elliot J. Siegel and Shaquille Oliver in Support thereof; the Stipulation of Settlement of Class Action; the proposed Notice of Class Action and Proposed Resolution attached thereto; the proposed Order Granting Preliminary Approval of Settlement and Setting a Settlement Fairness Hearing; the other records, pleadings, and papers filed in this action; and upon such other documentary and verbal evidence or argument as may be presented to the Court at the hearing of this motion. Dated: April 6, 2020 Respectfully submitted, KING & SIEGEL LLP By: CUst Svegel Elliot J. Siegel, Esq. Julian Burns King, Esq. Attorneys for Plaintiff and the Putative Class «i = PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. V. A. B. m o 0 ww p> a - E Q ZT oo mm m o u Oa ww p — TABLE OF CONTENTS INTRODUCTION ..ccuuuiiiiiuniiiiirensiiieeeiiiimessiiitesiiittessiiemessistmsssitttssssistesssistessssssttsssssstesssssssesssssssenns RELEVANT FACTUAL BACKGROUND .....ccccceiiitenniiiiinniiiiiieniiiiiiessiiiiesiiiietessismisssssimsssisssssssssessssssenns THE PARTIES AND THE PUTATIVE CLASS ..utttiiiictttetiintieeseestieeesentreessassseessassseesssssseessassssessassseessssssees sne PROCEDURAL HISTORY, DISCOVERY, AND MEDIATION ........coviueuieieeeeeeeseeeeeseeessesesesseseessesesssssessessens SUMMARY OF THE PARTIES’ CLAIMS AND DEFENSES ..........cccoiiimimmmmuiniiiiiiinnnieeissinnenssassssssssnnenns DEFENDANT’S FAILURE TO PROVIDE MEAL AND REST PERIODS.......ccciiiiiiiiiiiieiniiieee sc en ee sean e e DEFENDANT’S FAILURE TO PAY WAGES FOR ALL HOURS WORKED .......ccuttiiiiiiieeiiineesieneeeeeeee sn s DEFENDANT’S FAILURE TO PAY ALL OVERTIME COMPENSATION .....ueeiiisiueeseiniieeeesnrueessnsseeesssssneessnnns PLAINTIFF'S WAGE STATEMENT CLATIM.....utiiitieeieeiitieesiteeeeeeesstsasssas asse ssssasssssssssesssss ssssss sss snssesssnes PLAINTIFF'S WAITING TIME PENALTY CLAIM ..cvttiiitieeetie cites sete esstae erases esses asnsaesnnnee snes asses snnsessnnes PLAINTIFF'S PAGA CLAIM ..ttttiiitieieeetieeeaestteeeesstteeesssaeee assesses snsseeesassse ee sasss essa ss eesnsss sssnsssees nssseessnssnseess PLAINTIFF'S UNFAIR COMPETITION CLAIM..cciiittttttieitieesiasiueeseanrieessassseesssssseesssssseessassunessassssessnsssees sans DEFENDANT’S TOTAL DENIAL OF LIABILITY AND ITS LEGAL AND FACTUAL DEFENSES .......ccccvveeenn. FAIR VALUATION OF PLAINTIFE’S CLAIMS ...uuvteittteestteeeteeeereesstsasssas asses sssesassssasss ssss s ssss sssssn sessnnees SUMMARY OF THE PROPOSED SETTLEMENT AND CLAIMS PROCESS ........c.ccetemmuenniiiiiininnnnnnsnsesnenaens THE SETTLEMENT SUM, ATTORNEYS’ FEES, COSTS, AND ENHANCEMENT AWARD .....cccovevuverurennnenne NET FUNDS AVAILABLE TO CLASS CLAIMANTS ..eeitteitteetteetteeteeteasseessessesssesssssssssssassssssssssssesssessesnns RELEASE tte itte cite cis ete atest estes ste e ste estae ates atae atte este este aate ease aase arse eens senseessae as ee ss ae sete ae be este ante ense ante esnennsennes CLASS NOTICE AND ADMINISTRATION. ...cuvteitteettestteesteasteesseessesssesssesssessssssssssssesssesssssssessessssssssesssensses SHARE FORM ucusum osrsnesnenssoss ros vanes sess sos aeivsss oom sos yamom £555 85am 0m om 15s 100 5 se sesvsss ess svss sus mesasiss OPPORTUNITY TO BE EXCLUDED OR OBJECT ....uveiitiiitiesteesseesseessaesssessseessesssessssssssssssssssssssesssesssssssasssees IVIAILING OF CHECKS vu uveuveeteesesteessesseessassesseesanseessessesssessessesns s e sssess sass essesssss ansess sns n esssessens essessesnsensensen TAX TREATMENT «ve cuutteetteeeitte estes eueeeesseeansse asses sass esses anssesassseessseaansasannsesasssssssss asses s sse sss ssssee n e annes CERTIFICATION REPORTS .....eeiuttiiitieeiitteeieeeetteaastes asses assess ste asnsasasnsassnnssesses assess snnsessssesssssssnnssssnnn ssnsees PROVISIONAL CERTIFICATION OF THE SETTLEMENT CLASS UNDER THE LESSER STANDARD OF SCRUTINY FOR SETTLEMENT-ONLY CERTIFICATION IS APPROPRIATE FOR PURPOSES OF SETTLEMENT ...... A. NUMEROSITY AND ASCERTATNABILITY wocuvs svnswsvusvavesss svnaesvssvasess svnsesvasvaesss sonaesvasvaessvs sonaevvasvaeasvs sonaeevane -1- 26 PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VI. B. WELL-DEFINED COMMUNITY OF INTEREST .....uvttttiiotietseestieeesiteeesenteeessaseeesssnsesesssnsensssnsssesssnnsessssnnnes 27 (5) 1.414.076 10 15 A NUN SU T— 27 BB Yo [ole 1/1 SPRUE 27 3. AdeQUACY Of REPIESENTIALION .........eeeeeeeeeeeceieee ee eect ae tee e set tate a eases ett ar ease sees esssaraa sess ssasanes 27 EY 1-1 oo] 1 VA 28 THE COURT SHOULD PRELIMINARILY APPROVE THE SETTLEMENT, WHICH IS FAIR, ADEQUATE, AND REASONABLE wiuiivaisusvissuinivsssnmsvinsunsminss sonsans sossssssnssnssns so ssaavanssss ins so 55ass sos asvsnssns ans sess sissnsssiansas saisssissiannsns 28 A. CLASS ACTION SETTLEMENTS ARE SUBJECT TO JUDICIAL REVIEW AND APPROVAL UNDER THE CALIFORNIA RULES (OF COURT xr sonsnsunusanen conssnssms sms sess aoe mews wi so asi ass sss sms 28 B. THE SETTLEMENT IS THE RESULT OF SERIOUS, INFORMED, NON-COLLUSIVE NEGOTIATIONS AND REFLECTS A FAIR COMPROMISE OF CLAIMS AND: RISK FACTORS seuss snessesssossssssenssssnssasssssssssss asses esses s s sss sss ss es ss imes s5ssHes sm saasassna sass 30 C. THE EXTENT OF THE PRE-LITIGATION DISCOVERY AND INVESTIGATION WAS MORE THAN SUFFICIENT TO PERMIT PRELIMINARY APPROVAL OF THE SETTLEMENT ...eeittvtutueseeeeeerertnnneseeessessnsnneaesesssssssanneeesssssssssnnsneesessssssanssenessessssnnn 30 D. THE RISKS INHERENT IN CONTINUED LITIGATION ARE GREAT ......cccieiitutiiieeeeeeeetnrieee esas essnnseseees ens 31 THE CLASS NOTICE PLAN CONFORMS TO ALL APPLICABLE STATUTES AND RULES ......c.coeevuviiieennnn. 31 F. PLAINTIFF'S COUNSEL ARE EXPERIENCED IN SIMILAR WAGE-AND-HOUR LITIGATION. .........c..cc...... 32 G. THE ATTORNEYS’ FEES UNDER THE SETTLEMENT AGREEMENT ARE FAIR........cccccoiiiiiiiiiieciieee e , 33 H. THE CLASS REPRESENTATIVE INCENTIVE AWARD IS FAIR AND APPROPRIATE ......cccvvieeiitieeeeerieeeens 34 VII. THE COURT SHOULD APPOINT [...] AS SETTLEMENT ADMINISTRATOR........cccuvuruemmmrmrnrararararasaranaes 35 Vill. THE COURT SHOULD SCHEDULE A FINAL APPROVAL HEARING.......ccccccceiiiiiiiirmrneniisiniieneeenassenens 36 CO 10 To EU] [0 36 Dm PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1987) c...cevvueeeereeeeeeeceeeeeeeeeeeee Arenas v. El Torito Rests., Inc., 183 Cal. App. 4th 723, 732 (2010) c.eeovveverieeiieiieiieeie eee Augustus v. ABM Security Servs., Inc., 2 Cal. 5th 257, 270 (2016), as modified on denial of reh’g (Mar. 15, 2017) c.eoocuiiiiieiieeie cece eee 10, Barboza v. West Coast Digital GSM, Inc., 179 Cal. App. 4th 540, 546 (2009) .......cccvevveennen. Bell v. Farmers Ins. Exchange, 15 Cal. App.4th 715, 741 (2004)....cc.eeviieeiiiiiieieeie eee Bluford v. v. Safeway Stores, Inc.,216 Cal. App. 4th 864 (2013) .cc.veviiriiiiiiiiiiecierieee Bond v. Ferguson Enterprises, Inc., No. 1:09—cv-1662 OWW MIS, 2011 WL 2648879 (E.D. Cal. June 30, 2011) ..cc.uieiiriiiireeieeie etter eerste eee ee seen eee Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1021 (2012) ...cccvvvvrvrreennnnne. 10, 16, Bush v. Superior Court, 10 Cal. App. 4th 1374, 1382 (1992) csessssees sssssmssomss ssosmmesssssonsssssnss Cacho v. Eurostar, Inc., 43 Cal. App. 5th 885, 911 (2019), as modified (Dec. 23, 2019), reh’g denied (Jan. 13, 2020) ......cccierieeiiieiiieiie etic cit s steerer esses sree sse eee aee ns Caliber Bodyworks, Inc. v. Superior Court, 134 Cal. App. 4th 365, 375 (2005) ....cceevveenenen. Cervantez v. Celestica Corp., 618 F. Supp. 2d 1208 (C.D. Cal. 2009) ......cceeevieviirniieniecreanne. Cho v. Seagate Tech. Holdings, Inc., 177 Cal. App. 4th 734, 742 43 (2009).....ccceevveveeeneannen. City of San Jose v. Superior Court, 12 Cal.3d 447, 459 (1974) ..cccvreveerviinieneieeesieeneeenns 16, Cornn v. United Parcel Service, Inc., 2006 W.L. 449138, *2-3 (N.D.Cal. 2000)...................... Dunk v. Ford Motor Co., 48 Cal. App. 4th 1794, 1801 (1996) ......ccveeveeievrieieeieieenen 28, 29, Duran v. U.S. Bank Nat'l Assn., 59 Cal. 4th 1,29 (2014)......oooeiiieeieeeeeeeeeeeeeeee e e Ellis v. Naval Air Rework Facility, 87 F.R.D. 15, 18 (N.D. Cal. 1980), aft’d, 661 F.2d 039 (Oth Cir. 1981) cuits eee ete este sees eb ese ea beeen st abet ene esses Garner v. State Farm Mut. Auto. Ins. Co., No. CV 08 1365 CW (EMC), 2010 WL 1687832, at *17 n.8 (N.D. Cal. Apr. 22, 2010) .ecveeieriieiiiieieeie cesses Ghazaryan v. Diva Limousine, Ltd., 169 Cal. App. 4th 1524 (2008) .....ccevveecrieniieiieniecieennee, Glass v. UBS Fin. Servs., No. C-06-4068 MMC, 2007 U.S. Dist. LEXIS 8476, at *52 (N.D. Cal. Jan. 26, 2007) ....ccueeeureereeeeee eect eeeeee eect eee eevee eases este e sree erasers ease eases sane eens Laffitte v. Robert Half International (2016), 1 Cal. 5 480, 506 (Cal. Aug. 11, 2016) .............. Linder v. Thrifty Oil Co., 23 Cal. 4th 429, 439-40 (2000) .......cceerceerreerierriereireeee creer Local Joint Exec. Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1162 (9th Cir. 2001) c.eeeuiiiieiiieeiieie etree steers sees sree sree seen Lockheed Martin Corp. v. Superior Court, 29 Cal.4th 1096, 1106 (2003) ......ccceeveeierieneenenne Louie v. Kaiser Found. Health Plan, Inc., CASE NO. 08¢cv0795 IEG RBB, 2008 U.S. Dist. LEXIS 78314, at *18 (S.D. Cal. Oct. 6, 2008).........ccceeeviieerieirieeieeereeeree eee er e ee en ns Maldonado, et al. v. Epsilon Plastics, Inc., 22 Cal. App.5th 1308 (April 18, 2018).......c.c.......... Martin v. FedEx Ground Package System, Inc., 2008 WL 5478576, at *8 (N.D. Cal. DEC. 31, 2008)... etieit ete estes etree tetas estes shee eben eb een tetas et eet ene ene ne McCullah v. Southern Cal. Gas, 82 Cal.App.4th 495, 499 (2000) ......ccceeevierviienierieeieeneeeieene “3. PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 McKenzie v. Federal Express Corp., 765 F.Supp.2d 1222, 1229 (C.D.Cal. 2011) .....c.cccuenneeen. 13 Medrazo v. Honda of N. Hollywood, 166 Cal. App. 4th 89, 101 (2008) .......cceevvierieeiiaiieennns 26 Morillion v. Royal Packing Co., 22 Cal.4th 575, 582-83 (2000), as modified (May 10, 2000) eevee ete eee eee t ee ete eh eee es tetas eaten teehee eben eh testes beeen teeta be eben enna 11 Naranjo v. Spectrum Sec. Servs., Inc., 40 Cal. App. Sth 444,452 (2019) ...cccvvivriiiiiiiiiiieenne 20 Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 625 (9th Cir. 1982) ......ccoevvvveunrnen. 28 Ordonez v. Radio Shack, Inc., No. 2:10-CV-07060-CAS, 2014 WL 4180958, at *5 CCID, aL AES 155, 20) run nm mes cn 0520505555550 0540 4.555. SR TES AFAR 17 Ramirez v. GEO Grp., No. 18CV2136-LAB (MSB), 2019 WL 6782920, at *6 (S.D. Cal. DEC. 11,2019) ceniteee etter see eae eset ese seer ener 16, 18 Romero v. Producers Dairy Foods, Inc., No. 1:05cv0484 DLB, 2007 WL 3492841, at *4 (E.D. Cal. NOV. 14, 2007) c..eccveerierrieiieeeie eters e ect esses esters erase esses esse ess ssaese neenns 34 Ross v. US Bank National Association, No. C 07-02951 SI, 2010 WL 3833922, at *2 [TED Call, Besgots, 2 J I: coesoscnonasrs mosses, nsession 55090 SR GB AS 35 Sav—On Drug Stores, Inc. v. Superior Court, supra, 34 Cal. 4th 319, 326 (2004).......ccccceuee.e. 15 Shiferaw v. Sunrise Senior Living Mgmt., Inc., No. LACV1302171JAKPLAX, 2014 WL 12585796, at *17 (C.D. Cal. June 11, 2014) ....c.ccceevieiiiieieeieeieeeeee c c 17 Stuart v. RadioShack Corp., No. C-07-4499 EMC, 2010 WL 3155645 (N.D. Cal. AUZ. 9, 2070) coiniieeieeeeeeeeeee eet e eh ee e eee sh e eb ee estates best st ene ereene as 33 Towle v. Cummins Pac., LLC, 2018 WL 5785337, at *6 (S.D. Cal. 2018)........cccoveeereeeerneennne. 16 Vasquez v. Coast Valley Roofing, Inc., 266 F.R.D. 482, 493 (E.D. Cal. 2010).......cccecveeureenee. 35 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) cccuveeeieiieeiieeceeeeeeeceeeee eee 16 Washington Mut. Bank v. Superior Court, 24 Cal. 4th 906, 913 (2001) ....cccvvevveeiiiiiiiiein, 27 Wershba v. Apple Computer, Inc., 91 Cal. App. 4th 224, 234-35 (2001)...ccceevveecrieniiaanns 28,29 West v. Circle K Stores, Inc., NO. CIV. S-04-0438 WBS GGH, 2006 U.S. Dist. LEXIS 76558; at #28 (ED. Cal. Ot: 19; 2006s. msmmsnsn swmsssumnsoss sows susanss snssmsssnssssss sosamins 35 Wilson v. Kiewit Pacific Co., No. 09-cv-03630, ECF No. 119 (N.D. Cal. 2012).........ccceen...... 34 STATUTES Cal. Bus. & Profs. Code § 17208 ......c..veiiiieeeie eee ters eves eaves eae eaae ee eaae eens 15 Cal. Bus. & Profs. Code §§ 17200-17204 .......ooeeuieeeieeeeee ee cee eee e e eres erases a ra 15 Cal. Code Civ. Proc. § 382 oneseee eee sees eee eee eetae ee eaae ee eaae ens 6, 26 Cal. Lab. Code § 226(a)(1), 226(a)(2), and 226(2)(5) «..evveeeereereeienrieriieeenie ev er e erases 12,13 Cal. Lab. Code §§ 1182.12, 1194, 1197, 1197.1, and 1198.....cciumsussscosssinsasansssssssssussasssas 8,10, 12 Cal. Lab. Code §§ 201, 202, and 203..........cccierieeieerieniieeeie ects sre est s ere eaae erases se n enna 8,10 Cal. Lab. Code §§ 226(a), (f), (h), 226.3, and 1174(d).....ccceecreeierieiieieecie ci s 8,10 Cal. Lab. Code §§ 226.7 and 1198.........cooiiiiiieeieie cece eee 8, 10 Cal. Lab. Code §§ 226.7, 512(a), and 1198 .......cceeoiieiieieeie c ce ects 8,10 Cal. Lab. Code §§ 510 and 1198..........ooiiiiieiee cece eee eee 8,10, 12 Cal. Labor Code § 558, 2099, © SEQ. .ueevterriiriieriieeieereeetie eri ete enteeste sree sabe ansee esas sae sere anaes 8,10 _4- PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLR. CL. 3.7698) cvvvvooeeeeeoee eevee sees ee sesso sees eases sees esses esses ee esses esse esses esses essere 28 Cal, Be CE 3. TIE) (8) cman sass mess tus. ss 5530058085005, 5.70540 0A 40. 8 SSS 28 California Business & Professions Code §§ 17200, €t SEQ. .....eecveerveeriierieeieeiieeiie ce v 8, 10 Labor Code § 226.7(d) c.uveeiuiieiieieeie ieee eee eee cetera eres etree sees serra ee eaae ae eaae ee eaae es 10 Labor Code § 201. cuore eee eee eee eee eee eee eset eens 10, 13, 14 Labor Code § 202......oi ieee ects eee eee eer te eens nara e nana eens 10, 13, 14 Labor Code § 203... ieee eects este eerste seas sree ere e saree sree a eaae ee eaae ee eaae eerie es 14 Labor Code §§ 2699, €f SG. ....ccuueeuiaiiieiieeie eters eerste sae saben 14, 15 TREATISES Herbert B. Newberg & Alba Conte, Newberg on Class Actions (“Newberg”) (4th ed. 2002) cutee etter eee ester eee eras ete e teeta teetbeetae ahaa see se en ae es ae ahaa ese ens ese ente este ease san 27,29 Manual For Complex Litigation (Third) § 30.41 (1995) ...ccui iii 29 -5- PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This motion seeks preliminary approval of a wage-and-hour class action settlement in the amount of $775,000.00, representing an average individual gross recovery of $1,119.94 per Class member. Plaintiff seeks to represent a settlement class of approximately 692 California residents who are or were hourly security officers and hourly visitor service employees employed by Defendant in California within the Class Period (the “Settlement Class”). The “Class Period” is the time period from November 7, 2015 to the date of preliminary approval or August 3, 2020, whichever is first. Because the settlement here is fair and reasonable, and was negotiated at arm’s length after adequate investigation by counsel, it should be preliminarily approved. If the Court grants preliminary and final approval to the settlement, the estimated Net Settlement Amount (“NSA”) of $457,916.67— after deductions from the GSA for attorneys’ fees (up to $258,333.33) and costs (up to $15,000), settlement administration costs (currently estimated at $13,500, but up to $15,000), the Class Representative enhancement payment (up to $10,000), and the LWDA’s portion of the PAGA penalty payment ($18,750)—will be available to be distributed to all the Participating Class Members (i.e., all those who do not exclude themselves from the settlement following distribution of the Notice Packets), with no reversion of any settlement funds to Defendant, representing an average net individual payment of $661.72. No Claim Form will be required for a Class Member to be eligible to receive a settlement payment, and all Class Members who do not opt-out will automatically receive individual settlement payments and be subject to the Release set forth in the Settlement Agreement. Defendant will also pay the applicable employer-side payroll taxes in addition to the NSA. Accordingly, Plaintiff requests that the Court enter an order: (1) conditionally certifying the Settlement Class under California Code of Civil Procedure section 382 for settlement purposes only and preliminarily approving the Settlement; (2) approving the proposed Class Notice to be disseminated to 1, Class Members pursuant to the Settlement Agreement”; (3) appointing CPT Group, Inc. as the !' The proposed Notice of Proposed Class Action Settlement (“Class Notice”) is Exhibit A of the Settlement Agreement. See Declaration of Elliot Siegel in Support of Plaintiff’s Motion for Preliminary Approval of Class Action Settlement (“Siegel Decl.”), § 3; Exhibit 1. -6- PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Settlement Administrator; and (4) scheduling a hearing for final approval of the Settlement Agreement. II. RELEVANT FACTUAL BACKGROUND A. THE PARTIES AND THE PUTATIVE CLASS Plaintiff Shaquille Oliver is a resident of the State of California. Declaration of Shaquille Oliver (“Oliver Decl.”), § 3; Declaration of Elliot J. Siegel (“Siegel Decl.”), § 4. Mr. Oliver is a current employee of The J. Paul Getty Trust having been hired as a security guard by in July 2016. Mr. Oliver is a member of the Class as defined below. /d. Defendant The J. Paul Getty Trust is a charitable trust originally created by J. Paul Getty in 1953. Siegel Decl., 9 5. The Trust is headquartered at 1200 Getty Center Drive, Los Angeles, CA 90049. Id. The Trust operates the two branches of the J. Paul Getty Museum and other educational and art-related facilities in or around Los Angeles, California. /d. Plaintiff now seeks preliminary approval of this Settlement for a Settlement Class defined as: All hourly security officers and hourly visitor service employees employed by Defendant in California within the Class Period.’ See Siegel Decl. q 6; see also Class Notice (Siegel Decl., Exhibit (1)(A)). As of February 3, 2020, based on Defendant’s representation, the Settlement Class is estimated to comprise of six- hundred-and-ninety-two (692) Class Members. Siegel Decl. q 7. At all relevant times, Plaintiff and other non-exempt employees of Defendant in California were subject to the same policies, practices, and procedures governing the control and payment of wages earned and hours worked. /d. B. PROCEDURAL HISTORY, DISCOVERY, AND MEDIATION On July 26, 2019, Plaintiff gave notice to the LWDA and Defendant of his intent to file suit and bring claims under the Private Attorney General Act (“PAGA”). Siegel Decl. 9. On November 7, 2019, Plaintiff filed this Class Action Complaint in Los Angeles Superior Court. /d. On November 14, 2019, Plaintiff filed his First Amended Class Action Complaint. On February 26, 2020, Plaintiff filed his Second Amended Class Action Complaint alleging claims for (1) Failure to Pay Minimum Wages (Cal. 2 The term “Class Period” or “Settlement Period” shall refer to the time period from November 7, 2015 to the date of preliminary approval. -7- PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lab. Code §§ 1182.12, 1194, 1197, 1197.1, and 1198); (2) Failure to Pay Overtime Compensation (Cal. Lab. Code §§ 510 and 1198); (3) Failure to Provide Meal Periods (Cal. Lab. Code §§ 226.7, 512(a), and 1198); (4) Failure to Provide Rest Periods (Cal. Lab. Code §§ 226.7 and 1198); (5) Failure to Provide and Maintain Accurate Records (Cal. Lab. Code §§ 226(a), (f), (h), 226.3, and 1174(d)); (6) Wages Not Timely Paid Upon Termination (Cal. Lab. Code §§ 201, 202, and 203); (7) PAGA Penalties (Cal. Labor Code § 558, 2699, et seq.); and (8) Violation of California Business & Professions Code §§ 17200, et seq. (Unlawful Business Practices). Id. As of the date of this Motion, Plaintiff had not received a response from the LWDA regarding the PAGA Notice, or Plaintiff’s notice to PAGA of this proposed Settlement. Id. The crux of Plaintiffs Second Amended Complaint is that Defendant denied Plaintiff and Class Members rights afforded to them under the California Labor Code and Industrial Welfare Commission Wage Orders by, as a matter of uniform and systemic policy, failing to authorize and make available compliant meal and rest breaks by requiring employees to remain on call or subject to interruption during meal and/or rest periods—which in turn led to derivative failures to provide premium pay in lieu of breaks; pay at least minimum wages for all time worked; provide complete and accurate wage and hour statements; and pay all wages due upon termination. Siegel Decl. q 10. Over the course of the next several months, Plaintiff’s and Defendant’s counsel engaged in comprehensive discussions regarding the Plaintiff’s claims. Siegel Decl. § 11. Defendant, through its counsel, at all times vigorously denied liability, denied the material allegations of Plaintiff’s claims, and asserted various affirmative defenses to the legal claims set forth in the Second Amended Complaint. Id. The Parties agreed to attend private mediation to be held on February 3, 2020, and further agreed to exchange informal discovery for use at mediation. /d. On January 5, 2020, Defendant provided Plaintiff’s Counsel with data and documents about the putative class including: compensation and meal and rest period policy related documents; itemized wage statements and time-punch records for Plaintiff and a random 20% sampling of the Class; an anonymized class list of 692 employees, along with their beginning and end dates of employment, rate of pay, location and position; and information relevant to potential damages, including Defendant’s positions as to the number of wage statements for the Class during the Class Period and shift counts for the Class, including average shift length, and total number -8- PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of meal period premium payments made to the Class®. Id. Plaintiff’s counsel also engaged in a detailed factual and legal investigation into the claims, which included (a) over a dozen telephonic conferences with Plaintiff; (b) inspection and analysis of numerous documents and other information produced by Plaintiff and Defendant; (c) analysis of the legal positions taken by Defendant; (d) investigation into the viability of class treatment of the claims asserted in the Action; (e) analysis of potential class-wide damages, including information sufficient to understand Defendant’s potential defenses to Plaintiff’s claims; (f) research of the applicable law with respect to the claims asserted in the Complaint and the potential defenses thereto; (g) assembling and analyzing of data for calculating damages; and (h) interviewing multiple Class Members regarding the claims at issue. /d., at § 11. On February 3, 2020, the parties and their counsel attended an all-day mediation with Louis Marlin of Louis Marlin Mediations, LLC, a highly experienced mediator with extensive class action and employment litigation experience. Siegel Decl. § 12. Negotiations lasted all day and were conducted at arm’s length. Id. At the end of the mediation, the Parties agreed to settle the entire action, subject to Court approval, for the Gross Settlement Amount of $775,000.00. Id. The Parties executed a Memorandum of Understanding (“MOU”) containing the key deal points that formed the basis for the long-form settlement agreement now before the Court for preliminary approval. /d. On April 2, 2020, the Parties fully executed the Settlement Agreement before the Court now for preliminary approval. Siegel Decl. 4 13. The Counsel’s factual investigation, comprehensive discussions between the Parties’ counsel, and the informal discovery conducted in this matter have been adequate to give the Class Representative and Class Counsel a sound understanding of the merits of his position and to evaluate the worth of the claims of the Class. Id. The informal discovery conducted in this Action, and the information exchanged by the Parties before, after, and during the mediation, was sufficient to assess reliably the merits of the respective Parties’ positions and to compromise on a fair and equitable basis. Id. Class Counsel believes that the Settlement set forth below confers substantial benefits upon the members of the Class. /d. Based on their own independent investigation and evaluation, Class Counsel has determined that the agreed upon settlement terms set forth below are in the best interests of 3 Defendant paid $22,166.66 in meal and rest period premium payments during the Class Period. Siegel Decl. 9 32. -9. PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff and the members of the Settlement Class.* Id. III. SUMMARY OF THE PARTIES’ CLAIMS AND DEFENSES In the operative Second Amended Complaint, Plaintiff alleged eight causes of actions on behalf of himself and the Putative Class: (1) Failure to Pay Minimum Wages (Cal. Lab. Code §§ 1182.12, 1194, 1197, 1197.1, and 1198); (2) Failure to Pay Overtime Compensation (Cal. Lab. Code §§ 510 and 1198); (3) Failure to Provide Meal Periods (Cal. Lab. Code §§ 226.7, 512(a), and 1198); (4) Failure to Provide Rest Periods (Cal. Lab. Code §§ 226.7 and 1198); (5) Failure to Provide and Maintain Accurate Records (Cal. Lab. Code §§ 226(a), (f), (h), 226.3, and 1174(d)); (6) Wages Not Timely Paid Upon Termination (Cal. Lab. Code §§ 201, 202, and 203); (7) PAGA Penalties (Cal. Labor Code § 558, 2699, et seq.); and (8) Violation of California Business & Professions Code §§ 17200, et seq. (Unlawful Business Practices). Siegel Decl. 9 9. As set forth in detail below, Plaintiff alleged that as a matter of uniform and systemic policy, Defendant failed to authorize and make available compliant meal breaks; failed to authorize and make available compliant rest breaks; failed to provide premium pay in lieu of breaks; failed to pay at least minimum wages for all time worked; failed to pay all overtime compensation; failed to provide complete and accurate wage and hour statements; and failed to pay all wages due upon termination. A. DEFENDANT’S FAILURE TO PROVIDE MEAL AND REST PERIODS With respect to Plaintiff and the Class, the Trust implemented non-compliant meal and rest period policies that discouraged or prohibited off-premises meal and rest periods. Siegel Decl. q 14; Oliver Decl. 99 5-7. Additionally, Defendant failed to release employees of all control during meal and rest periods while on the premises. 1d. Labor Code § 226.7(d) requires employers to “relieve [the employee] of duty, with the employee thereafter at liberty to use the [meal and/or rest break] period for whatever purpose he or she desires.” See, e.g., Brinker Restaurant Corp. v. Sup. Ct., 53 Cal. 4th 1004, 1017 (2012). Employers violate this mandate by requiring employees to remain on call. Augustus v. ABM Security Servs., Inc., * Plaintiff’s Counsel is unaware of any class, representative or other collective action in any other court in this or any other jurisdiction that asserts claims similar to those asserted in this action on behalf of a class or group of individuals some or all of whom would also be members of the class defined in this action. Siegel Decl. q 10. -10 - PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Cal. 5th 257, 270 (2016), as modified on denial of reh’g (Mar. 15, 2017) (“The trial court determined it was undisputed that ABM’s policy required plaintiffs to keep radios and pagers on, remain vigilant, and respond if the need arose. Given these intersecting realities, on-call rest periods do not satisfy an employer’s obligation to relieve employees of all work-related duties and employer control.”). Employees cannot be required to “remain at the ready and capable of being summoned to action”; rather, they must have the “freedom to use rest periods for their own purposes.” Id. (“During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.”); see also Morillion v. Royal Packing Co., 22 Cal.4th 575, 582-83 (2000), as modified (May 10, 2000) (finding that time spent in employer’s premises and subject to employer’s control qualifies as hours worked). Defendant’s practices frequently subjected class members to interruption during their meal and rest periods. Siegel Decl. q 15; Oliver Decl. qq 5-7. Class Members were instructed to respond to a visitor inquiry regardless of timing. Siegel Decl. 9 15; Oliver Decl. § 5. However, because it was impossible for employees to take a meal or rest period in designated employee-only break rooms without first passing through public areas of the Museum and being subject to visitor inquiry, class members were frequently subject to interruption during their meal and rest periods. /d. Plaintiff and the Class were also instructed to monitor and respond to radio traffic during, including during their rest periods, placing them “on-call” for these periods or subject to interruption. Siegel Decl. q 15; Oliver Decl. q 6. Additionally, Plaintiff and the Class were instructed to get needed equipment, such as replacement radios, during their breaks to avoid the need for relief staffing at their posts. Siegel Decl. § 15; Oliver Decl. § 7. B. DEFENDANT’S FAILURE TO PAY WAGES FOR ALL HOURS WORKED The law requires employers to pay employees a minimum wage for all work time, which is defined as “the time during which an employee is subject to the control of an employer and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” 8 C.C.R. § 11090(2)(K) (defining “Hours Worked”). The California Supreme Court has explained that the “suffered or permitted to work” standard includes all time when an employer “directs, commands or restrains” an employee. See, e.g., Morillion v. Royal Packing Co., 22 Cal. 4th 575, 583 (2000), as modified (May 10, 2000); see also Ghazaryan v. Diva Limousine, Ltd., 169 Cal. App. 4th 1524 (2008); -11 - PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 see also Cervantez v. Celestica Corp., 618 F. Supp. 2d 1208 (C.D. Cal. 2009).° Plaintiff alleged that Defendant failed to pay Class Members, including Plaintiff, for time spent responding to visitors and radio traffic during meal periods. Siegel Decl. § 16. This time was compensable because it was “controlled time” within the meaning of Wage Order No. 10. /d. However, because Class Members were clocked out (as they were on their meal periods), they were necessarily not paid for this time. /d. C. DEFENDANT’S FAILURE TO PAY ALL OVERTIME COMPENSATION Throughout the Class Period, Plaintiff and other Class Members were not paid overtime premiums for all of the hours they worked in excess of eight hours in a day because The Trust did not treat time spent responding or time spent “on-call” as compensable time. Siegel Decl. § 17. Defendant knew or should have known that its policies required Plaintiff and Class Members to work during their “on-call” meal and/or rest periods. Defendant also knew, or should have known, that they did not compensate Plaintiff and other Class Members for this work. /d. Because Plaintiff and Class Members sometimes worked shifts of eight hours a day or forty hours a week on the clock, some of this work qualified for overtime premium pay. /d. Plaintiff alleged that this resulted in unpaid overtime in violation of Labor Code §§ 510, 1198, and Industrial Wage Order No. 9.° D. PLAINTIFF’S WAGE STATEMENT CLAIM Plaintiff claimed Defendant systematically provided Plaintiff and Class Members with incomplete and inaccurate wage statements in violation of 226(a)(1), 226(a)(2), and 226(a)(5). Siegel Decl. q 18. California Labor Code section 226(a) provides that every employer shall furnish to each of his or her employees an accurate and complete itemized wage statement in writing, including, but not limited to, the name and address of the legal entity that is the employer, the inclusive dates of the pay period, total hours worked, gross wages earned, net wages earned, and all applicable rates of pay. > California statutes make clear the importance that the Legislature has placed on the requirement that employers pay employees for all hours worked. See, e.g., Lab. Code §§ 1182.12, 1194, 1197, and 1197.1 (imposing various civil and liquidated penalties on employers who fail to pay minimum wage). ® California Labor Code §§ 510, 1198 and Industrial Wage Order No. 9 provide that it is unlawful to employ persons without compensating them at a rate of pay either time-and-one-half or two-times that person’s regular rate of pay, depending on the number of hours worked by the person on a daily or weekly basis. Defendant was required to pay Plaintiff and Class Members working more than eight hours in a day or more than forty hours in a workweek, at the rate of time and one-half for all hours worked in excess of eight hours in a day or more than forty hours in a workweek. S12 - PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Because Defendant required Plaintiff and Class Members to work off the clock, Defendant did not list the correct number of total hours worked in violation of section 226(a)(2). Siegel Decl. § 19. Plaintiff argued that Defendant’s failure to include the total hours worked on the wage statement constituted a violation of Labor Code section 226. Id.; see McKenzie v. Federal Express Corp., 765 F.Supp.2d 1222, 1229 (C.D.Cal. 2011) (“[TThe Court finds that FedEx violated Section 226(a)(2) by failing to state the “total hours worked by [an] employee” in its wage statements”); Cornn v. United Parcel Service, Inc., 2006 W.L. 449138, *2-3 (N.D.Cal. 2006) (denying defendant’s motion for summary judgment on Section 226 claim and noting, “[i]nstead, the Court holds that if UPS failed to report the actual number of hours worked on Plaintiff’s wage statements, then the company violated section 226”). Since Plaintiff and Class Members were forced to work off the clock, their wage statements also failed to set forth the correct amount of gross wages earned by Plaintiff and Class Members in compliance—constituting an additional violation of section 226(a)(1). Siegel Decl. q 20. For the same reason, Defendant failed to list the correct amount of net wages earned by Plaintiff and Class Members in violation of section 226(a)(5). Siegel Decl. 9 Id. Defendant’s failure to furnish Plaintiff and members of the Class with complete and accurate, itemized wage statements resulted in actual injury, as these failures led to, among other things, the non- payment of all minimum and overtime wages earned, and rest period premium wages owed, and deprived them of the information necessary to identify discrepancies in Defendant’s reported data. Siegel Decl. 4 21. An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with Labor Code § 226(a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney’s fees.” Labor Code § 226(e). E. PLAINTIFF’S WAITING TIME PENALTY CLAIM Labor Code sections 201 and 202 provide that if an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately, and that if an employee voluntarily leaves his or her employment, his or her wages shall become due and payable no later than -13- PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 seventy-two hours thereafter, unless the employee has given seventy-two (72) hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting. During the relevant time period, Defendant willfully failed to pay Subclass Members who are no longer employed by Defendant the earned and unpaid wages set forth above, including but not limited to, overtime and minimum wages, either at the time of discharge, or within seventy-two hours of leaving Defendant’s employ. Siegel Decl. q 22. Plaintiff argued that Defendant’s failure to pay Subclass Members their wages earned and unpaid at the time of discharge, or within seventy-two hours of their leaving Defendant’s employ, violates Labor Code sections 201 and 202. Former Class Members are therefore entitled to recover from Defendant the statutory penalty wages for each day they were not paid, at their regular rate of pay, up to a 30-day maximum penalty under Labor Code section 203. F. PLAINTIFF’S PAGA CLAIM The Private Attorney General Act of 2004 (“PAGA” - Labor Code §§ 2699, et seq.) allows an aggrieved employee to bring suit against an employer for violations of most Labor Code provisions. Suits brought under PAGA do not affect the employee’s right to recover other remedies under state or federal law. See Labor Code § 2699(g); Caliber Bodyworks, Inc. v. Superior Court, 134 Cal. App. 4th 365, 375 (2005). Wherever the Labor Code gives the Labor and Workforce Development Agency discretion to asses a civil penalty, a court is authorized to exercise the same discretion. Labor Code § 2699(e)(1). The statute of limitations for PAGA suits is one year. An employee who prevails in an action brought under PAGA is entitled to an award of reasonable attorneys’ fees and costs. The penalties available under PAGA are those provided in the underlying Labor Code provision that is violated or, if no penalty is listed, those provided by PAGA itself. Where the Labor Code does not provide for a penalty, PAGA establishes a civil penalty of $100 for each aggrieved employee per pay period for the initial violation and $200 for each aggrieved employee per pay period for each subsequent violation. Labor Code § 2699(f). For any civil penalties collected under PAGA, seventy-five percent of the penalties are distributed to the LWDA for enforcement and education, and twenty-five percent is -14 - PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 distributed to the aggrieved employees. Id. at (i). Plaintiff alleged that by virtue of each of Defendant’s foregoing Labor Code violations, Plaintiff and the Class Members are, in addition to other remedies, entitled to additional civil penalties under PAGA. Siegel Decl. § 23. This cause of action exposes Defendant to additional penalties for the Labor Code violations, in additions to attorneys’ fees and costs. Labor Code § 2699(g)(1). G. PLAINTIFF’S UNFAIR COMPETITION CLAIM Plaintiff contended that by failing to pay Plaintiff and Class Members for meal and rest periods, and committing the above-described Labor Code violations, Defendant engaged in unlawful, unfair, and/or fraudulent business practices in violation of Cal. Bus. & Profs. Code §§ 17200-17204 and is liable for restitution to the Class. Siegel Decl. 9 24. Furthermore, this cause of action lengthens the statute of limitations of the class claims to four (4) years. Cal. Bus. & Profs. Code § 17208. H. DEFENDANT’S TOTAL DENIAL OF LIABILITY AND ITS LEGAL AND FACTUAL DEFENSES Defendant denied and continues to deny generally the claims, contentions, and all material allegations made in the Second Amended Complaint. Siegel Decl. § 25. Defendant also claimed various defenses against certification, liability, and damages as to all claims. /d. First, and most significantly, Defendant argued that it could defeat class certification as to Plaintiff’s claims for meal and rest period violations because liability would have to be determined on an individual basis for each putative Class Member given that there was no way to determine meal or rest period violations on a common method of fact subject to class-wide adjudication. Siegel Decl. 26. “The certification question is ‘essentially a procedural one that does not ask whether an action is legally or factually meritorious.” Sav—On Drug Stores, Inc. v. Superior Court, supra, 34 Cal. 4th 319, 326 (2004) (quoting Linder v. Thrifty Oil Co., 23 Cal. 4th 429, 439-40 (2000), as modified (Aug. 9, 2000)). “The party seeking certification has the burden to establish the existence of both an ascertainable class and a well-defined community of interest among class members.” Sav-On Drug Stores, Inc., supra, 326 (2004) (citing Lockheed Martin Corp. v. Superior Court, 29 Cal.4th 1096, 1106 (2003)). “The ‘community of interest’ requirement embodies three factors: (1) predominant common questions of law -15- PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.” Id. “Commonality requires that there be questions of law or fact common to the class. “What matters to class certification is not the raising of common questions ... but rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). A plaintiff attempting to prove commonality must show their employer “violated California law not just on paper, but also in practice and in a consistent way that would permit class wide adjudication.” Towle v. Cummins Pac., LLC, 2018 WL 5785337, at *6 (S.D. Cal. 2018). “In addition to establishing commonality, [plaintiffs] must...prove that common questions of law or fact predominate over questions affecting only individual class members.” Ramirez, supra, at *2; Plaintiff must also show “substantial benefits from certification that renders proceeding as a class superior to the alternatives.” Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1021 (2012).” This superiority requirement encompasses consideration of “the manageability of individual issues.” Duran v. U.S. Bank Nat'l Assn., 59 Cal. 4th 1, 29 (2014). Common issues do not predominate “where each member’s right to recover depends on facts peculiar to his case,” and “every member of the alleged class would be required to litigate numerous and substantial questions determining his individual right to recover following the ‘class judgment’ determining issues common to the purported class.” City of San Jose v. Superior Court, 12 Cal.3d 447, 459 (1974). When a class action will “splinter into individual trials,” common questions do not predominate and litigation of the action in the class format is inappropriate. Id., at 460; McCullah v. Southern Cal. Gas, 82 Cal.App.4th 495, 499 (2000) (“[Clommunity of interest requirement is not satisfied if every member of alleged class would be required to litigate numerous and substantial questions.”). Here, Defendant argued even if common questions do exist, they do not predominate because whether an individual Class Member is entitled to recovery for a meal or rest period violation will 7 See also Bell v. Farmers Ins. Exchange, 15 Cal. App.4th 715, 741 (2004) (“A line of California cases follows the principle of rule 23(b)(3) of the Federal Rules of Civil Procedure (28 U.S.C.), which provides that, for a class action to be maintained, it must be superior to other available methods for the fair and efficient adjudication of the controversy.”). - 16 - PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 depend on numerous individual factors; the question of whether a Class Member can leave the property, must be available during breaks, or could be interrupted by the public during a break depends on their individual posting (i.e., shift and location) and the individual Class Member’s own interpretation of policies and practices. Siegel Decl. q 27. Defendant claimed that questions as to what directives each Class Member received when shadowing other officers in training, where each officer was assigned, each officer’s understanding of relevant policies and practices, and their own decision-making (to respond to the public or to not respond, to report an interruption or not to report, what to record and what not to record, to leave the radio on during breaks or not), are not questions susceptible of class-wide answers and thus are not certifiable. /d.; see also Shiferaw v. Sunrise Senior Living Mgmt., Inc., No. LACV1302171JAKPLAX, 2014 WL 12585796, at *17 (C.D. Cal. June 11, 2014) (denying certification for on-call meal and rest period claims because “Plaintiffs have not demonstrated a systematic policy that required employees to respond to emergency calls while on their breaks. Rather, there is substantial evidence that the practice among employees varied with respect to whether they brought their mobile devices with them during breaks. Second, Plaintiffs have not demonstrated that there is a systematic policy that required employees to miss rest breaks to respond to resident calls.”). Defendant also argued that because its meal and rest break policies are facially compliant, and testimony from putative Class Members indicated they both received training regarding breaks and were actually provided breaks without interruption, Plaintiff cannot proffer the required “substantial evidence” that, due to class-wide policies or practices, unlawful deprivation of meal periods or rest periods “was the rule rather than the exception.” Siegel Decl. q 28; see also Ordonez v. Radio Shack, Inc., No. 2:10-CV-07060-CAS, 2014 WL 4180958, at *5 (C.D. Cal. Aug. 15, 2014) (“The Court is therefore left without a method of establishing by common proof when rest breaks were or were not taken by members of the class.”). Although courts have certified claims similar to those asserted in this Action, and the California Court of Appeal has held that they are certifiable, other California courts have either refused to certify or have decertified such claims. Siegel Decl. § 27. For instance, in Cacho v. Eurostar, Inc., the Court of Appeal held common questions did not predominate where an employer’s meal break policy omitted certain requirements but was otherwise compliant with California law—thus class certification was not “17 - PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 supported without additional evidence of a uniform unlawful policy or practice that the class as a whole was subjected to.® Cacho v. Eurostar, Inc., 43 Cal. App. 5th 885, 911 (2019), as modified (Dec. 23, 2019), reh’g denied (Jan. 13, 2020), review filed (Feb. 10, 2020). Similarly, in Ramirez v. GEO Grp., the court also denied certification where the plaintiff alleged emergency procedures that required off- duty employees to remain on duty for emergency purposes while on break superseded otherwise legally compliant general written policies but could point to no other evidence of class-wide practices. Ramirez v. GEO Grp., No. 18CV2136-LAB (MSB), 2019 WL 6782920, at *6 (S.D. Cal. Dec. 11, 2019). The court held “[f]inding a violation would not be possible on a class-wide basis; it would require testimony from each officer regarding whether they believed GEO’s plans required them to monitor radios during breaks and whether they had, in fact, missed breaks due to GEO’s emergency policy.”® Id. (“This type of individualized inquiry is precisely what the Rule 23 requirements are designed to avoid.”). In sum, Defendant claimed Plaintiff could not point to a common class-wide unlawful break policy or practice to challenge. Siegel Decl. § 29. Thus, Defendant argued common issues do not predominate amongst Plaintiff’s claims and certification is inappropriate because “each member’s right to recover depends on facts peculiar to his case,” and “every member of the alleged class would be required to litigate numerous and substantial questions determining his individual right to recover following the ‘class judgment’ determining issues common to the purported class.” Id.; City of San Jose v. Superior Court, 12 Cal.3d 447,459 (1974)). Separate mini trials would have to determine both liability (i.e. whether Defendant prevented a particular employee from taking breaks they knew they were 8 As stated in Eurostar, “the trial court did not abuse its discretion in finding plaintiffs could not prove ... liability for meal break violations at trial by facts common to members of the class” where “[i]n the absence of an express unlawful meal break policy, evidence of ... policy to the contrary, and plaintiffs’ purely anecdotal evidence of missed meal breaks, plaintiffs would need to call numerous employees from different stores to testify at trial about their missed meal breaks in order to prove a uniform policy or practice of not providing meal breaks.” Id. Defendant argued that because the interpretation and application of The Trust’s policies by Class Members is at the heart of Plaintiff’s case—Tliability will be determined by individualized issues including the relevant directives each employee received when upon hire, the location worked, the employee’s job duties, each employee’s understanding of relevant policies and practices, and their own decision-making. Siegel Decl. 9 27. ? See also Cummings v. Starbucks Corp., 2014 WL 1379119, at *23 (C.D.Cal. March 24, 2014); In re Taco Bell Wage and Hour Actions, 2012 WL 5932833, at *10-11 (E.D.Cal. Nov. 27, 2012). -18 - PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 entitled to take) and damages (i.e, how often Defendant prevented a particular employee from taking a break). Siegel Decl. /d. If Plaintiff continued litigation, there was a significant risk that Defendant would defeat class certification as to Plaintiff’s meal and rest period claims. Siegel Decl. § 30. This risk factor could eliminate all of the Class’ claims, including penalties under PAGA, since Plaintiff’s claims all rise and falls with the underlying break claims. /d. Second, Defendant claimed even if certification was granted, it would prevail on the merits. Defendant argued its written meal and rest break policies, which informed the Class of their right to take one or two meal breaks for shifts exceeding five or ten hours respectively, and take rest breaks for each four hours of work or major fraction thereof, complied with California state law requirements. '° Siegel Decl. 4 31. Defendant argued, as set forth in Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004, 1040 (2012), the California Supreme Court held an employer is required only to “provide” breaks but is not required to ensure that they are taken. Thus, the obligation to provide a meal period is generally satisfied if the employer “relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.” Id. Further, “[bJona fide relief from duty and the relinquishing of control satisfies the employer’s obligations.” Id. at 1041. Defendant’s Staff Handbook instructed the Class that meal breaks must be uninterrupted, and employees are relieved of all duties during meal and rest breaks and provided its own set of declarations from Class Member showing compliance. Siegel Decl. § 32. Defendant also provided evidence that it had paid out over $22,000 in meal and rest period payments, arguing that this signified that it took its Labor Code obligations seriously, but also that its employees knew how—and, in fact, did—report when they did not receive a compliant meal or rest period. Siegel Decl. q 32. Thus, as it had written policies and practices in place providing these breaks, Defendant argued it was in compliance with Brinker and would prevail on the merits. Siegel Decl. § 31. Third, Defendant argued that given the foregoing, Plaintiff’s derivative off-the-clock claims, claims for wage statement violations, and claims for failure to pay wages, which rise and falls with the 10 Defendant’s written meal and rest break policies are contained within its Staff Handbook. -19- PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 underlying break claims, are unlikely to be class certified or prevail on the merits. Siegel Decl. 9] 33- 35. They also argued that Section 203 and 226 penalties were no longer available citing to Naranjo v. Spectrum Sec. Servs., Inc., 40 Cal. App. 5th 444, 452 (2019) and Maldonado, et al. v. Epsilon Plastics, Inc., 22 Cal. App.5th 1308 (April 18, 2018). Siegel Decl. q 35. Fourth, Defendant claimed it since it promulgated facially compliant meal and rest periods, provided training on and paid meal and rest period premium payments any further violations were committed unintentionally, such that Plaintiff would have difficulty proving willfulness or intentionality for penalty purposes, and liquidated damages, waiting time penalties, and other civil or PAGA penalties were unlikely to be awarded, or would be greatly reduced, in light of Defendant’s good faith attempt to comply with the Labor Code. Siegel Decl. 9 36. In considering these significant risks and others, as well as the time, expense and cost of litigation, trial and appeals, the Parties agreed that Settlement was appropriate, and that the Settlement here is fair and reasonable. Siegel Decl. 9 37. I. FAIR VALUATION OF PLAINTIFF’S CLAIMS In coming to a determination that this Settlement was fair and reasonable and in the best interests of the Class, Plaintiff took into consideration the merits of the action on balance with the risk of the court not certifying the class based on common issues not predominating; the risk of a finding Defendant provided compliant meal and/or rest break policies; the risk of the court not awarding waiting time penalties, and/or other civil or PAGA penalties based on a lack of willfulness or difficulties in establishing bad faith; and other potential defenses of Defendant on the merits. Siegel Decl. 99 39-40. If Defendant prevailed on any of these defenses, the claims of the Class would potentially be worth little to nothing. /d. The settlement, given these risks, is fair and reasonable. Siegel Decl. § 41. Defendant agrees with Plaintiff for the purposes of the Settlement only that the Class is subject to common compensation, meal period, and rest period policies. Settlement Agmt., at § 29. Defendant likewise agrees with Plaintiff for the purposes of the Settlement only that Plaintiff asserts claims typical of Defendant’s compensation, meal period, and rest period practices that are at the core of the lawsuit. /d. Plaintiff’s detailed claim-by-claim analysis and risk discount of Defendant’s defenses, utilized to arrive at a fair valuation of Plaintiffs claims, is set forth in the Siegel Declaration at Paragraph 38. -20 - PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. SUMMARY OF THE PROPOSED SETTLEMENT AND CLAIMS PROCESS The Settlement Agreement entered into by the parties is attached as Exhibit 1 to the Siegel Declaration and incorporated herein by reference in its entirety. The following is a summary of the principal terms of the Settlement Agreement: A. THE SETTLEMENT SUM, ATTORNEYS’ FEES, COSTS, AND ENHANCEMENT AWARD The non-reversionary Maximum Settlement Amount (“MSA”) of $775,000.00 to be paid by Defendant in full settlement includes: (1) Class Counsel’s attorney’s fees in a sum of up to $258,333.33; (2) litigation costs of up to $15,000.00; (3) PAGA Penalties in the sum of $25,000, with $18,750.00 to be paid to the California Labor Workforce and Development Agency (“LWDA”) and $6,250 to be paid to the Class; (4) settlement administration costs to CPT Group, Inc. (“CPT Group”), currently estimated at $13,500, but up to $15,000.00; and (5) Class Representative enhancement payment of $10,000.00. Settlement Agmt., at 49 31-6. Defendant will pay the applicable employer-side payroll taxes outside of and in addition to the MSA. Id. 4 31. B. NET FUNDS AVAILABLE TO CLASS CLAIMANTS Members of the Settlement Class who do not opt out of this Resolution will receive a lump sum payment as consideration for the release of claims set forth in 4 59 of the Settlement Agreement, in an amount determined by the Settlement Administrator based on a workweek analysis of their time working for Defendant. Settlement Agmt., at q 38. After all Court-approved deductions from the non-reversionary MSA, it is estimated that at least $457,916.67 (the “Net Settlement Amount” or “NSA”) will be distributed to the Class Members. Settlement Agmt., 4 36-8. The lump sum payment to each member of the Settlement Class not excluding themself will be determined by dividing the Net Settlement Amount by the total number of Participating Class Workweeks worked by all members of the Settlement Class during the Settlement Period (the “Weekly Amount”) and then multiplying the Weekly Amount by the number of Individual Workweeks worked by the individual Class Member as determined by the Settlement Administrator, less any applicable employee-side withholding taxes.!! Id., 99 38, 54. For tax purposes, the Individual Payments will be allocated 33% to wages and 67% to penalties and interest. Settlement Agmt., at 9 54. _21 - PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Settlement obtained here will result in meaningful recovery for each Class member, with Class Members being potentially entitled to an average net payment of $661.72 per Class Member. Siegel Decl. 4 43. The settlement is well within the “zone of reasonableness,” justifying preliminary approval and notice dissemination to the Class—and meets or exceeds settlements in similar wage and hour cases. Id. C. RELEASE Upon the Date of Final Approval, Named Plaintiff and all members of the Settlement Class, except those who make a timely and valid Request for Exclusion from the Class, will be deemed to have fully, finally and forever released, settled, compromised, relinquished, and discharged with respect to all of the Released Parties and any and all Released Claims. The Settlement Class and each member of the Class who has not submitted a valid Request for Exclusion, fully releases and discharges the Released Parties for the Released Claims for any period during the Released Claims Period. Settlement Agmt., at 59. Settlement Class Members will be deemed to have acknowledged and agreed that their claims for wages and/or penalties in the Action are disputed, and that their Individual Settlement Amount constitutes payment of all sums allegedly due to them. /d. Settlement Class Members will be deemed to have acknowledged and agreed that California Labor Code Section 206.5 is not applicable to the Individual Settlement Amount. /d. “Released Claims” means all claims arising out of the claims and allegations made or that reasonably could have been alleged based on the factual allegations in the operative complaint, including allegations of: failure to pay minimum wages, base rate wages, overtime wages, time-and-a-half, and double time wages; failure to provide meal breaks and pay meal period premiums; failure to provide rest breaks and provide rest break premiums; failure to provide accurate itemized wages statements; failure to timely provide all wages due during employment and/or upon termination; unfair business practices; civil penalties under the Private Attorneys General Act (“PAGA”); including, but not limited to, claims for injunctive relief; punitive damages; liquidated damages, penalties of any nature; interest; fees; and costs for the Class Period. Settlement Agmt., at § 24. The Released Claims also include all claims Plaintiff and participating Class Members may have against the Released Parties relating to (i) the -02. PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 payment and allocation of Class Counsel’s Fees and Costs to Class Counsel pursuant to this Settlement Agreement and (ii) the payment of the Enhancement Awards pursuant to this Settlement Agreement. /d. It is the intent of the Parties that the judgment entered by the Court upon final approval of the Settlement shall have res judicata effect and be final and binding upon Plaintiff and all Participating Class Members regarding all of the Class Member Released Claims. 1d. “Released Parties” means (i) Defendant; and (ii) its past, present and future shareholders, directors, officers, members, managers, employees, agents, representatives, attorneys, insurers, partners, investors, shareholders, administrators, parent companies, subsidiaries, affiliates, divisions, predecessors, successors, assigns, and joint venturers. Settlement Agmt., at 9 25. D. CLASS NOTICE AND ADMINISTRATION Subject to Court approval, the parties agree to engage CPT Group to administer the Settlement and to act as the Settlement Administrator to administer the settlement process, which includes but is not limited to distributing and responding to inquiries about the Notice Packet, determining the validity of any Workweek disputes and opt-outs, and calculating all amounts to be paid from the Net Settlement Amount. See generally Settlement Agmt. Charges and expenses of the Settlement Administrator, estimated to be $15,000, will be paid from the Settlement Amount. Settlement Agmt., at 49 4, 34. Any charges and expenses of the Settlement Administrator greater than the allocated Fifteen Thousand Dollars ($15,000.00) will come from the Settlement Amount. /d. If the actual Settlement Administrator fees are less than the Parties’ estimation, the difference between the actual and estimated Settlement Administrator fees will be included in the Net Settlement Amount. /d. The Notice Packet shall include Notice of Class Action Settlement and Share Form. Settlement Agmt., at J 19. The Notice Packet shall provide: (a) information regarding the nature of the Action; (b) a summary of the Settlement’s principal terms; (c) the Settlement Class definition; (d) each Class Member’s estimated Individual Settlement Payment and the formula for calculating Individual Settlement Payments; (e) the dates which comprise the Class Period; (f) instructions on how to submit valid Requests for Exclusion or objections; (g) the deadlines by which the Class Member must fax or postmark Requests for Exclusions or file and serve objections to the Settlement; (h) the claims to be released, as set forth herein; and (i) the date for the Final Approval Hearing. Settlement Agmt., at q 45. -23- PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CPT Group will perform the notice and other claims administration functions necessary for the parties to fulfill their settlement obligations including, identify the Class Members and ensure that their addresses are updated, mail out the Class Notice Packets, by first class mail, and forwarding requested, to all members of the Class. Settlement Agmt., at 99 42-4. Within ten (10) calendar days of following receipt of the Class List, which will be provided by Defendant 15 business days after Preliminary Approval, the Settlement Administrator shall mail copies of the Notice Packet, containing the Class Notice and the individualized populated Share Form, to all Class Members via regular First Class U.S. Mail. Settlement Agmt., at 9 41-2. E. SHARE FORM The Notice Packet shall enclose the Share Form for Settlement Class members. Settlement Agmt., at 9 44. For each Settlement Class member, the Share Form will identify the number of Individual Workweeks that she/he was employed and their estimated Net Settlement Payment. See Share Form. The Notice Packet will also inform the employee of their right to dispute this number by completing and returning the form within thirty-five (35) days of the postmark date of the Share Form. See Notice Packet. Class Member’s receipt of settlement proceeds is not conditional on the submission of the Share Form. Id. Absent the receipt of a Share Form the number of workweeks identified in the Share Form shall be conclusively deemed to be accurate. Settlement Agmt., at 9 46. F. OPPORTUNITY TO BE EXCLUDED OR OBJECT Class Members will have thirty-five (35) calendar days from the date the Notice Packets (i.e., the Notice of Class Action Settlement and Share Form) are mailed by the Settlement Administrator to postmark their Request for Exclusion or Notice of Objection. Settlement Agmt., at § 35. The date of the initial mailing of the Notice Packet, and the date of the postmark on the return mailing envelope will be the exclusive means to determine whether a Request for Exclusion has been timely submitted. Settlement Agmt., at 9 47. The postmark date of the filing and service will be deemed the exclusive means for determining that the Notice of Objection is timely. Settlement Agmt., at § 49. The Settlement Administrator’s decision as to the total number of Individual Workweeks shall otherwise be final and non-appealable. Settlement Agmt., at § 38. G. MAILING OF CHECKS -24 - PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 If a Class Member does not exclude themselves, they will be mailed a check no later than 25 days after Final Approval. Settlement Agmt., at § 31. If a check is returned as undeliverable, the Settlement Administrator shall attempt to obtain a valid mailing address. Any settlement checks that remain uncashed one-hundred and eighty (180) or more calendar days after issuance shall be voided, and the Settlement Administrator will remit the entire amount of each uncashed Net Settlement Payment to the Controller of the State of California to be held pursuant to the Unclaimed Property Law, California Civil Code § 1500, et seq., for the benefit of those Settlement Class members who did not cash their checks until such time that they claim their property. Settlement Agmt., at § 51. H. TAX TREATMENT Thirty-three percent (33%) of all Individual Settlement Payments shall constitute wages in the form of back pay (and each Class Participant will be issued an IRS Form W-2 for such payment to him or her), and sixty-seven percent (67%) shall constitute penalties, interest, and reimbursement (and each Class Participant will be issued an IRS Form 1099 for such payment to him or her). See Settlement Agmt., at 9 54-55. Employment taxes and other legally required withholdings will be withheld from payments to the members of the Settlement Class. Id. Defendant will bear the cost of all employer payroll taxes, which shall not be paid from the Settlement Amount. Settlement Agmt., at 9 16, 31, and 55. I. CERTIFICATION REPORTS The Settlement Administrator will provide Defendant’s counsel and Class Counsel a weekly report which certifies: (a) the number of Class Members who have submitted valid Requests for Exclusion; and (b) whether any Class Member has submitted a challenge to any information contained in their Claim Form or Notice Packet. Settlement Agmt., at q 50. Additionally, the Settlement Administrator will provide to counsel for both Parties any updated reports regarding the administration of the Settlement Agreement as needed or requested. Id. No later than fourteen (14) days prior to the deadline for Class Counsel to file its motion in support of the Final Approval and Fairness Hearing, the Settlement Administrator will compile and deliver to Class Counsel and Defense Counsel a declaration with summary information of the Notice process, including but not limited to (a) the total amount of final Individual Settlement Amounts of each Settlement Class Member (b) the number of Settlement Class Members to receive such payments, (c¢) the final number of requests for -25- PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exclusion/Opt-Outs and objections, (d) the Settlement Administrator’s qualifications for administration, and (e) an explanation of the steps taken to implement the Notice process as set forth in this Agreement. 1d. V. PROVISIONAL CERTIFICATION OF THE SETTLEMENT CLASS UNDER THE LESSER STANDARD OF SCRUTINY FOR SETTLEMENT-ONLY CERTIFICATION IS APPROPRIATE FOR PURPOSES OF SETTLEMENT California Rule of Court 3.769(d) provides that the Court may make an order approving certification of a provisional settlement class at the preliminary approval stage. It is well-established that trial courts should use a “lesser standard of scrutiny” for determining the propriety of certifying a settlement class, as opposed to a litigation class. Dunk v. Ford Motor Co. 9 (“Dunk”), 48 Cal. App. 4th 1794, 1807 n.19 (1996). Since no trial is anticipated in a settlement class, the case management issues inherent in determining if the class should be certified need not be confronted; and the trial court’s fairness review of the settlement protects the interests of the non-representative class members. (/d.); see also Officers for Justice, 690 F.2d at 633 (“Th[e] relationship between the certification determination and the merits of the case is further attenuated within the context of the settlement evaluation process . ... [Clertification issues raised by class action litigation that is resolved short of a decision on the merits must be viewed in a different light.”); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1987) (“Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems . . . for the proposal is that there be no trial.”). As discussed below, for the purposes of this settlement only, the Parties ask this Court to provisionally certify the Class, as defined above, under section 382 of the Code of Civil Procedure. A. NUMEROSITY AND ASCERTAINABILITY Numerosity is met if a proposed class is so large that joinder of all members would be impracticable. See Cal. Code Civ. Proc. § 382. A proposed settlement class is ascertainable if the class members can be objectively identified and given notice of the litigation without unreasonable time or expense. See Medrazo v. Honda of N. Hollywood, 166 Cal. App. 4th 89, 101 (2008). At the time of settlement, Defendant represented that the proposed Class consisted of approximately 692 hourly security officers and hourly visitor service employees employed by Defendant in California within the -26 - PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Class Period (all of whom have been identified through Defendant’s records). Siegel Decl. q 3. B. WELL-DEFINED COMMUNITY OF INTEREST 1. Commonality To justify certification, the class proponent must show that questions of law or fact common to the class predominate over the questions affecting the individual members. See Arenas v. El Torito Rests., Inc., 183 Cal. App. 4th 723, 732 (2010) (citing Washington Mut. Bank v. Superior Court, 24 Cal. 4th 906, 913 (2001). While the Parties dispute whether a class would be appropriate if the litigation were to continue, they agree, for the purposes of this settlement only, that the Class is subject to common compensation, meal period, and rest period policies. Settlement Agmt., at § 29; see Bluford v. v. Safeway Stores, Inc., 216 Cal. App. 4th 864 (2013) (certification appropriate). 2. Typicality Typicality “focuses on whether there exists a relationship between the plaintiff’s claims and the claims alleged on behalf of the class.” Herbert B. Newberg & Alba Conte, Newberg on Class Actions (“Newberg”), § 3:13. Again, the Parties dispute whether Plaintiff’s claims are typical of the Class for the purposes of any continued litigation of the Action, but agree for the purposes of this settlement only, that Plaintiff assert claims regarding Defendant’s compensation, meal period, and rest period practices that are at the core of the lawsuit. Settlement Agmt., at 9 29. 3. Adequacy of Representation The proposed class representative must establish that he or she will adequately represent the proposed class. See Barboza v. West Coast Digital GSM, Inc., 179 Cal. App. 4th 540, 546 (2009). Specifically, Named Plaintiff is adequate to represent the class because he was employed by Defendant during the Class Period, experienced the same wage and hour practices as the rest of the class, understands his duties as a class representative, has been willing to undergo the risk of litigation, and has no conflict of interest with the other Class Members. Siegel Decl. § 8; Oliver Decl. q 8. Adequacy may be established by the fact that counsel are experienced practitioners. See Local Joint Exec. Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1162 (9th Cir. 2001). Here, Plaintiff alleges, and Defendant does not dispute, for purposes of this settlement, that Plaintiff and the Class are represented by counsel with extensive experience in wage-and-hour litigation, -27- PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 including multiple wage-and-hour class actions. Settlement Agmt., at q 29. 4. Superiority Certification of the Class for settlement purposes is superior here because there will be a global resolution of all claims at once, which fosters judicial economy. See Settlement Agmt., at 9 29. Class certification is also vastly superior to litigation of numerous individual claims because most, if not all, of the claims are too small to litigate outside of the class context. /d. VI. THE COURT SHOULD PRELIMINARILY APPROVE THE SETTLEMENT, WHICH IS FAIR, ADEQUATE, AND REASONABLE A. CLASS ACTION SETTLEMENTS ARE SUBJECT TO JUDICIAL REVIEW AND APPROVAL UNDER THE CALIFORNIA RULES OF COURT The law favors settlements. Bush v. Superior Court, 10 Cal. App. 4th 1374, 1382 (1992). This is particularly true in class actions where substantial resources can be conserved by avoiding the time, cost, and rigors of formal litigation. However, a class action may not be dismissed, compromised, or settled without the Court’s approval. Cal. R. Ct. 3.769(a). The California Rules of Court set forth the procedures for court approval of a class action settlement: (1) the Court preliminarily approves the settlement; (2) class members receive notice as directed by the Court; and (3) the Court conducts a final approval hearing to inquire into the fairness of the proposed settlement. Cal. R. Ct. 3.769(c), (e)-(g). The decision to approve or reject a proposed settlement lies within the Court’s sound discretion. See Wershba v. Apple Computer, Inc., 91 Cal. App. 4th 224, 234-35 (2001). Nevertheless, in considering a potential settlement for approval, a court is not to turn the approval hearing “into a trial or rehearsal for trial on the merits. . . . [or] to reach any ultimate conclusions on the contested issues of fact and law which underlie the merits of the dispute.” Officers for Justice v. Civil Serv. Comm'n, 690 F.2d 615, 625 (9th Cir. 1982). The Court’s ultimate duty is to determine whether the settlement is fair, adequate, and reasonable. See Dunk, 48 Cal. App. 4M at 1801 (setting forth the “fair, adequate, and reasonable” standard) (citing Officers for Justice, 690 F.2d at 625); Cho v. Seagate Tech. Holdings, Inc., 177 Cal. App. 4th 734, 742 43 (2009) (a trial court must approve a class action settlement agreement, but only 29 after determining that it is “‘fair, adequate and reasonable,’ considering factors such as the “‘risk, 299 expense, [and] complexity’ of continued litigation). The Court enjoys broad discretion in making its -28- PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fairness determination, and should consider factors including but not limited to: [T]he strength of plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel . . . and the reaction of the class members to the proposed settlement. Dunk, 48 Cal. App. 4th at 1801 (setting forth a non-exhaustive list of factors for the court’s consideration at final approval). The above factors are not exclusive, “. . . and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case.” Wershba, 91 Cal. App. 4th at 245. However, in doing so, the Court must give “[due] regard to what is otherwise a private consensual agreement between the parties.” Id.,; see also In re Microsoft I-V Cases, 135 Cal. App. 4th 706, 723 (2006) (same). The inquiry must be limited “to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties.” Id. (citation and internal quotation marks omitted). At the preliminary approval stage, the Court need only determine that the settlement falls within the “range of possible judicial approval,” so that notice to the class and the scheduling of the fairness hearing are worthwhile. See Newberg, § 11:25 (4th ed. 2002); see also Spann v. J.C. Penney Corp., 314 F.R.D. 312, 319 (C.D. Cal. 2016) (“At the preliminary approval stage, the court “evaluate[s] the terms of the settlement to determine whether they are within a range of possible judicial approval.”). The Court should grant preliminary approval if there are no “grounds to doubt its fairness or other obvious deficiencies . . . and [the settlement] appears to fall within the range of possible approval.” Manual For Complex Litigation (Third) § 30.41 (1995); see Dunk, 48 Cal. App. 4th at 1802. A “presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.” Dunk, 48 Cal. App. 4th at 1802 (citing Newberg, § 11:41); In re Microsoft I-V Cases, 135 Cal. App. 4th 706, 723 (“The trial court operates under a presumption of fairness when the settlement is the result of arm’s-length negotiation, investigation and discovery that are sufficient to permit counsel and -29.- PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the court to act intelligently, counsel are experienced in similar litigation, and the percentage of objectors is small.”). As shown below, the settlement falls well within the range of approval because there are no grounds to doubt its fairness. Siegel Decl. 9 39-43. B. THE SETTLEMENT IS THE RESULT OF SERIOUS, INFORMED, NON-COLLUSIVE NEGOTIATIONS AND REFLECTS A FAIR COMPROMISE OF CLAIMS AND RISK FACTORS The settlement was the product of extensive arm’s length negotiations utilizing a professional and well-respected third party neutral. Siegel Decl. § 42. Though cordial and professional, the settlement negotiation was adversarial and non-collusive in nature. /d. The Settlement reached is the product of substantial effort by the parties and their counsel. /d.; see generally, Siegel Decl. Although Plaintiff and his counsel believed the class claims had merit and there was a possibility of certifying the class and claims, they recognized the potential risk, expense, and complexity posed by litigation, such as unfavorable decisions on class certification, summary judgment, at trial and/or on the damages awarded, and/or on an appeal that can take several more years to litigate. Siegel Decl. 9 39. The resulting Settlement was based on calculations, risk assessment, and non-collusive negotiation; it takes the risks identified above and others into account in arriving at the non-reversionary settlement amount of $775,000.00. Siegel Decl. 9 39-42. C. THE EXTENT OF THE PRE-LITIGATION DISCOVERY AND INVESTIGATION WAS MORE THAN SUFFICIENT TO PERMIT PRELIMINARY APPROVAL OF THE SETTLEMENT The parties thoroughly investigated and evaluated the factual and legal strengths and weaknesses of this case before reaching the Settlement. Siegel Decl. 49 39-40. As described above, the Settlement was reached after extensive investigation and research, calculations and risk evaluation, substantial exchanges of documents, 1 and Plaintiff’s counsel thorough factual investigation, * sufficient to evaluate 12 Including Defendant’s compensation and meal and rest period policy related documents; itemized wage statements and time-punch records for Plaintiff and a random 20% sampling of the Class; an anonymized class list of 692 employees, along with their beginning and end dates of employment, rate of pay, location and position. Siegel Decl. § 11. 13 This investigation has included (a) over a dozen telephonic conferences with Plaintiff; (b) inspection and analysis of numerous documents and other information produced by Plaintiff and Defendant; (c) analysis of the legal positions taken by Defendant; (d) investigation into the viability -30 - PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant’s defenses. Siegel Decl. 4 42. The Settlement came only after the case was thoroughly investigated by Plaintiff’s counsel. /d. D. THE RISKS INHERENT IN CONTINUED LITIGATION ARE GREAT To assess the fairness, adequacy, and reasonableness of a class action settlement, the Court also should consider “[t]he strength of plaintiff's case, the risk, expense, complexity and likely duration of further litigation, [and] the risk of maintaining class action status.” See Dunk, 48 Cal. App. 4th at 1801. As described above, Defendant has strong defenses to Plaintiff’s claims, most notably in the form of facially compliant meal and rest break policies coupled with testimony from putative Class Members they received training regarding breaks and were actually provided breaks without interruption, which create a real possibility that the claims might not be certified and/or might fail on the merits. Siegel Decl. 919 26-36. Proceeding with litigation would impose a significant risk of no recovery as well as ongoing, substantial additional expenditures of time and resources. Siegel Decl. 4 39. If settlement were not achieved, continued litigation of the claims would take a substantial amount time and possibly confer no benefit to Class Members. /d. By contrast, the Settlement will yield a prompt, certain, and substantial recovery for the Class, which also benefits the Parties and the Court. Id. Another risk inherent in continued litigation is the risk of non-certification and/or maintaining class action status through trial, and appeal. Siegel Decl. 9 40. As Defendant pointed out, there is a substantial risk that it could defeat class certification. Id. In considering these risks, the choice was overwhelmingly in favor of Settlement. Siegel Decl. 49 39-40. E. THE CLASS NOTICE PLAN CONFORMS TO ALL APPLICABLE STATUTES AND RULES The proposed Class Notice should be approved, as it fully informs the Class Members of the nature of the lawsuit and each Class Member’s rights under the terms of the Settlement Agreement and applicable law. See Siegel Decl., Exhibit (1)(A). The manner in which the Class Notice shall be of class treatment of the claims asserted in the Action; (e) analysis of potential class-wide damages, including information sufficient to understand Defendant’s potential defenses to Plaintiff’s claims; (f) research of the applicable law with respect to the claims asserted in the Complaint and the potential defenses thereto; (g) assembling and analyzing of data for calculating damages; and (h) interviewing numerous Class Members regarding the claims at issue. Siegel Decl. q 13, fn. 2. 231 - PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disseminated, as outlined above, will ensure that all or nearly all of the Class Members will be properly notified of the proposed Settlement. ' The notice plan and the Class Notice satisfy the requirements of Rule of Court 3.766 and afford Settlement Class Members with all due process protections required by the United States Constitution. Moreover, the contents of the Class Notice are in compliance with Cal. R. Ct. 3.766(d), because the Notice includes, without limitation (1) a detailed explanation of the case, including the basic contentions or denials of the parties; (2) a statement that the court will exclude the member from the class if the member so requests by a specified date; (3) a procedure for the member to follow in requesting exclusion from the class; (4) a statement that the judgment, whether favorable or not, will bind all members who do not request exclusion; and (5) a statement that any member who does not request exclusion may, if the member so desires, enter an appearance through counsel. See Siegel Decl., Exhibit (1)(A). The 35- calendar day deadline for Class Members to exclude themselves or challenge their Covered Workweeks is reasonable, as it provides Class Members with ample time to do so and, if they so choose, to seek independent legal advice in the interim. F. PLAINTIFF’S COUNSEL ARE EXPERIENCED IN SIMILAR WAGE-AND-HOUR LITIGATION. Plaintiff’s Counsel are experienced wage-and-hour practitioners and litigators who have worked for several of the country’s top litigation firms, where Counsel worked on consumer class action cases. Counsel are also experienced in wage and hour cases and applicable wage and hour law. They have been provisionally and finally certified as adequate and competent class counsel in several other wage-and- hour class actions. Siegel Decl. 99 44-50. The Parties’ counsel agree that this Settlement is fair and reasonable in light of the nature of the claims, realistic risk adjusted value of damages, complexities of the case, the state of the law, and uncertainties of class certification and litigation. Siegel Decl. 99 39-42. Given the risks inherent in 14 The Court has wide discretion in approving the means of providing notice, so long as the class representative “provide(s) meaningful notice in a form that should have a reasonable chance of reaching a substantial percentage of class members.” Archibald v. Cinerama Hotels, 15 Cal. 3d 853, 861 (1976). -32- PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 litigation and the defenses asserted, this Settlement is fair, adequate, and reasonable and in the best interests of Class Members and should be preliminarily approved. /d. The view of the attorneys actively conducting the litigation is entitled to significant weight in deciding whether to approve the settlement. Ellis v. Naval Air Rework Facility, 87 F.R.D. 15, 18 (N.D. Cal. 1980), aff'd, 661 F.2d 939 (9th Cir. 1981); Kullar v. Foot Locker Retail, Inc., 168 Cal. App. 4th 116, 128 (2008) (court must take into account “the experience and view of counsel”). The Settlement is also consistent with other settlements that received approval of the Courts. Siegel Decl. q 43. G. THE ATTORNEYS’ FEES UNDER THE SETTLEMENT AGREEMENT ARE FAIR Under the terms of the Settlement Agreement, Class Counsel is requesting $258,333.33 in attorneys’ fees. Siegel Decl. 4 51. This amount is one-third (1/3) of the $775,000 agreed upon by the parties as the non-reversionary Gross Settlement Amount. /d. As the California Supreme Court has made clear, 1/3 of the common fund is a reasonable percentage for a trial court to award as attorneys’ fees in a class action where a common fund was generated as a result of the case. See Laffitte v. Robert Half International (2016), 1 Cal. 5™ 480, 506 (Cal. Aug. 11, 2016) (“We therefore agree with the Court of Appeal below that ‘the percentage of fund method survives in California class action cases, and the trial court did not abuse its discretion in using it, in part, to approve the fee request [of 1/3 of the common fund] in this class action). The California Supreme Court further clarified that trial courts “have discretion to conduct a lode-star cross check on a percentage fee, as the court did here; they also retain the discretion to forgo a lodestar cross check and use other means to evaluate the reasonableness of a requested percentage fee.” Id. In similar class action cases, numerous courts have approved fees of up to 1/3 of the common fund. See e.g., Martin v. FedEx Ground Package System, Inc., 2008 WL 5478576, at *8 (N.D. Cal. Dec. 31, 2008) (federal district court approved attorneys’ fees of 1/3 of common fund); Stuart v. RadioShack Corp., No. C-07-4499 EMC, 2010 WL 3155645 (N.D. Cal. Aug. 9, 2010) (approving fee award of 1/3 15 “With regard to expenditure of judicial resources, we note that trial courts conducting lodestar cross- checks have generally not been required to closely scrutinize each claimed attorney-hour, but have instead used information on attorney time spent to focus on the general question of whether the fee award appropriately reflects the degree of time and effort expended by the attorneys.” Laffitte, 1 Cal. Sth at 505. -33- PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the total maximum settlement and noting that the fee award of 1/3 of the total settlement was “well within the range of percentages which courts have upheld as reasonable in other class action lawsuits”); Wilson v. Kiewit Pacific Co., No. 09-cv-03630, ECF No. 119 (N.D. Cal. 2012) (approving fee award of 1/3 of the common fund and noting that such award is fair, reasonable and appropriate); Romero v. Producers Dairy Foods, Inc., No. 1:05cv0484 DLB, 2007 WL 3492841, at *4 (E.D. Cal. Nov. 14,2007) (awarding fees of 1/3 of common fund in a wage and hour class action, noting: “[f]ee awards in class actions average around one-third of the recovery.”). Significantly, the Retainer Agreement in this case provides fees up to one-third of the amount obtained. Siegel Decl. § 51. Accordingly, preliminary approval of attorneys’ fees of one-third of the common fund are reasonable and should be conditionally approved here. Once the Court grants preliminary approval to the settlement and authorizes the dissemination of notice of the settlement to the class, Class Counsel anticipates filing a Motion for Attorneys’ Fees, Costs, and Incentive Award that will be scheduled to be heard concurrently (or will be part of) the Motion for Final Approval and Fairness Hearing. In connection with the filing of the Motion for Attorneys’ Fees and Costs, Class Counsel will submit updated information in the form of a sworn declaration setting forth a summary of their lodestar hours on this case, as well all of their actual costs incurred in the litigation this case. Siegel Decl. q 52. H. THE CLASS REPRESENTATIVE INCENTIVE AWARD IS FAIR AND APPROPRIATE The parties request payment of an Incentive Award from the non-reversionary Gross Settlement Amount to the Class Representative in the amount of $10,00.00, in addition to whatever payment he is otherwise entitled to receive as a Class Member. The proposed Incentive Award is reasonable compensation given the time and effort that the named Plaintiff devoted to this case; the valuable assistance they provided to Class Counsel; and the fact that he entered into a general release of claims that is broader than the release of the Class. Siegel Decl. 9 53. Plaintiff provided invaluable assistance to Class Counsel and the Class in this case, including providing factual background for mediation and the Class Complaint; reviewing the relevant documents, and Complaint; participating in phone calls with Class Counsel to discuss litigation and settlement strategy; attending mediation, and reviewing the settlement documents. Plaintiff agreed to participate in -34 - PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this case with no guarantee of personal benefit. Siegel Decl. 9 54; Oliver Decl. 9 9. Further, Plaintiff agreed to undertake the financial risk of serving as Class Representative and exposed himself to the risk of negative publicity by anyone who opposed this case. Siegel Decl. 9 55; Oliver Decl. 4 10. Moreover, the requested $10,000.00 Incentive Payment for the Named Plaintiff falls within the range of incentive payments typically awarded to Class Representatives in similar class actions. See e.g. Bond v. Ferguson Enterprises, Inc., No. 1:09—cv—1662 OWW MJS, 2011 WL 2648879 (E.D. Cal. June 30, 2011) (approving $11,250 service award to each of the two class representatives in a trucker meal break class action; Ross v. US Bank National Association, No. C 07-02951 SI, 2010 WL 3833922, at *2 (N.D. Cal. Sept. 29, 2010) (approving $20,000 enhancement award to Class Representative in California wage-and-hour class action settlement); Vasquez v. Coast Valley Roofing, Inc., 266 F.R.D. 482, 493 (E.D. Cal. 2010) (approving service awards in the amount of $10,000 each from a $300,000 settlement fund in a wage/hour class action); West v. Circle K Stores, Inc., NO. CIV. S-04-0438 WBS GGH, 2006 U.S. Dist. LEXIS 76558, at *28 (E.D. Cal. Oct. 19, 2006) (“the court finds plaintiffs’ enhancement payments of $ 15,000 each to be reasonable.”); Glass v. UBS Fin. Servs., No. C-06-4068 MMC, 2007 U.S. Dist. LEXIS 8476, at *52 (N.D. Cal. Jan. 26, 2007) (finding “requested payment of § 25,000 to each of the named plaintiffs is appropriate” in wage and hour settlement); Louie v. Kaiser Found. Health Plan, Inc., CASE NO. 08cv0795 IEG RBB, 2008 U.S. Dist. LEXIS 78314, at *18 (S.D. Cal. Oct. 6, 2008) (approving “$25,000 incentive award for each Class Representative” in wage an hour settlement); Garner v. State Farm Mut. Auto. Ins. Co., No. CV 08 1365 CW (EMC), 2010 WL 1687832, at *17n.8 (N.D. Cal. Apr. 22,2010) (“Numerous courts in the Ninth Circuit and elsewhere have approved incentive awards of $20,000 or more where, as here, the class representative has demonstrated a strong commitment to the class”). /d. VII. THE COURT SHOULD APPOINT |...] AS SETTLEMENT ADMINISTRATOR The parties propose that the Court appoint CPT Group, Inc. (“CPT”) to serve as the Settlement Administrator. Siegel Decl. § 56. CPT Group is experienced in administering class action settlements. Id. CPT Group has administered thousands of class actions and is qualified to administer this Settlement. 1d. Settlement administration costs to CPT Group are quoted at a maximum capped amount of $13,500. 1d. 235- PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VIII. THE COURT SHOULD SCHEDULE A FINAL APPROVAL HEARING The last step in the approval process is the formal hearing, whereby proponents of the Settlement may explain and describe its terms and conditions and offer argument in support of approval, and Class Members or their counsel may be heard in support of or in opposition to the settlement. The parties propose that the Court schedule a hearing for final approval of the settlement, including Plaintiff’s request for attorneys’ fees, costs and the service award, at the earliest available date in August 2020. IX. CONCLUSION For all of the foregoing reasons, the Plaintiff respectfully requests that the Court grant preliminary approval of the Parties’ Settlement. Dated: April 6, 2020 Respectfully Submitted, KING & SIEGEL LLP Elliot J. Siegel, Esq. Julian Burns King, Esq. Attorneys for Plaintiff and the Class -36 - PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT Journal Technologies Court Portal Make a Reservation SHAQUILLE OLIVER vs DAVID L. LEE Case Number: 19STCV40123 Case Type: Civil Unlimited Category: Other Employment Complaint Case Date Filed: 2019-11-07 Location: Stanley Mosk Courthouse - Department 32 Reservation Case Name: SHAQUILLE OLIVER vs DAVID L. LEE Type: Motion for Order (Motion for Order Granting Preliminary Approval of Class Action Settlement) Filing Party: The J. Paul Getty Trust (Defendant) Date/Time: 04/29/2020 8:30 AM Reservation ID: 883719402483 Fees Description Motion for Order (name extension) Credit Card Percentage Fee (2.75%) TOTAL Payment Amount: $61.65 Account Number: XXXX1366 24 Print Receipt | 4 Reserve Another Hearing Copyright © Journal Technologies, USA. All rights reserved. Case Number: 19STCV40123 Status: RESERVED Location: Stanley Mosk Courthouse - Department 32 Number of Motions: 1 Confirmation Code: CR-PWCJFNWAABMDJXIMK Fee Qty Amount 60.00 1 60.00 1.65 1 1.65 $61.65 Type: Visa Authorization: 047398
