DeclarationCal. Super. - 6th Dist.June 22, 202110 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV383425 Santa Clara - Civil AEGIS LAW FIRM, PC Kashif Haque, State Bar N0. 218672 Samuel A. Wong, State Bar N0. 217104 Jessica L. Campbell, State Bar N0. 280626 Fawn F. Bekam, State Bar No. 3073 12 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Electronically Filed by Superior Court of CA, County of Santa Clara, on 12/9/2021 8:21 AM Reviewed By: R. Walker Case #21 CV383425 Envelope: 7825596 Attorneys for Plaintiff Javier Diaz and George Mendez, individually and on behalf of all others similarly situated. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA JAVIER DIAZ and GEORGE MENDEZ, individually and on behalf 0f all others similarly situated, Plaintiffs, VS. BGIS GLOBAL INTEGRATED SOLUTIONS US, LLC; and DOES 1 through 20, inclusive, Defendants. Case No. 2 1CV3 83425 Assignedfor allpurposes t0: Hon. Sunil R. Kulkarni, Dept. I DECLARATION OF JESSICA L. CAMPBELL IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT Date: March 10, 2022 Time: 1:30 pm. Dept: 1 DECLARATION OF JESSICA L. CAMPBELL IN SUPPORT OF 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 I, Jessica L. Campbell, hereby declare as follows: 1. I am an attorney at law licensed t0 practice before all of the courts 0f the State of California. I am a partner With Aegis Law Firm, PC (“Aegis”), counsel for Plaintiffs in this matter. I am thoroughly familiar With and have personal knowledge of all of the facts set forth herein. 2. I submit this declaration in support of Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement. If called as a Witness, I could and would competently testify thereto. Case History 3. On February 16, 2021, Plaintiff Diaz filed a class action 0n behalf 0f Defendant’s non- exempt employees. The case is entitled Javier Diaz v. BGIS Global Integrated Solutions US, LLC Case No. 21-cv-02804-VKD and currently pending in the United States District Court Northern District 0f California (the “Federal Action”). After removal 0f the Federal Action to the United States District Court Northern District 0f California, Plaintiffs filed this action as a representative action under PAGA 0n June 22, 2021. Plaintiffs allege the following causes of action in the operative Complaint: (1) failure to pay minimum wages; (2) failure to pay overtime wages; (3) failure t0 provide meal periods; (4) failure to permit rest breaks; (5) failure t0 provide accurate wage statements; (6) failure t0 pay all wages timely and upon separation of employment; (7) failure to reimburse necessary business expenses; (8) Violation of Business and Professions Code § 17200, et seq., based 0n the preceding claims; and (9) enforcement of Lab. Code § 2698, et seq. (“PAGA”), for the preceding claims. 4. On February 11, 202 1 , before adding a PAGA claim, PlaintiffDiaz provided written notice t0 the LWDA and Defendant as required by Lab. Code § 2699.3(a). Plaintiff Diaz sent amended notice to the LWDA and Defendant 0n March 18, 2021 t0 add PlaintiffMendez and additional factual allegations. 5. The case faced various hurdles, including a removal t0 federal court. After removal, Plaintiffs conducted formal discovery, and received policy documents, time records, and wage statements. After the meet and confer efforts regarding the claims and discovery, the Parties agreed t0 mediate. 6. On September 13, 2021, the Parties attended a mediation session with Hon. Carl J. West (ret.), a respected mediator. The Parties spent the next several months negotiating the terms of the 1 DECLARATION OF JESSICA L. CAMPBELL IN SUPPORT OF 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, which was finalized in October 0f 2021. The negotiations were adversarial, conducted at arm’s length and tempered by the efforts 0f both sides t0 serve the interests 0f their clients. 7. After agreeing t0 a Settlement in principle, Plaintiffs filed an amended complaint in this action to add all the claims asserted in the Federal Action and stipulated to stay the Federal Action pending approval of this Settlement. 8. On December 8, 2021, Plaintiffs submitted the Settlement t0 the LWDA pursuant t0 Lab. Code § 2699(1)(2). 9. Defendant’s records show the Class consists 0f approximately 97 individuals, making joinder of all Class Members impracticable. Further, the Class is readily ascertainable from Defendant’s business records because all Class Members are current or former employees of Defendant. 10. Plaintiffs alleged that Defendant maintained uniform employment policies and/or practices that illegally deprived Class Members 0f lawful wages, meal periods, rest breaks, reimbursements 0f business expenses, accurate wage statements, and waiting time pay. Plaintiffs’ allegations present common legal and factual questions of, inter alia, whether Defendant applied the same scheduling, timekeeping, minimum and overtime pay, meal period, rest break policies, and reimbursement ofbusiness expenses t0 all Class Members; Whether these policies and practices resulted in Labor Code Violations; whether Defendant’s conduct was intentional; and whether Class Members are entitled t0 penalties. These common questions could be resolved using Class Members’ schedules, time punches, and payroll records, Defendant’s corporate representative’s testimony, written communications between Defendant and Class Members, and Class Member declarations. 11. Plaintiffs allege that they and other Class Members were employed by Defendant and injured by Defendant’s common wage and hour policies and practices, including Defendant’s scheduling, timekeeping, minimum wage pay, overtime pay, meal period, rest break, and business expense reimbursement practices. Through documents and information exchanged in formal and informal discovery, Plaintiffs confirmed that these common policies and practices similarly affected Plaintiffs and the Class. Plaintiffs’ Counsel fully understood the strengths and weaknesses of the claims before the Parties reached a settlement. 2 DECLARATION OF JESSICA L. CAMPBELL IN SUPPORT OF 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 12. Plaintiffs contend that their claims are based 0n Defendant’s common, class-Wide policies and procedures, and that liability could be determined on a class-wide basis without dependence 0n individual assessments of liability Exposure Analvsis 13. While Plaintiffs and their counsel believed and continue t0 believe this is a strong case for certification, the significant risks and expenses associated With class certification and liability proceedings must be taken into account. 14. In determining whether the amount offered in settlement was reasonable, Plaintiffs’ Counsel weighed that figure against many risk factors. Although the amount 0f the Class’ maximum potential damages - if proven - is substantial, legitimate and serious risks compelled a considerable discount for settlement. 15. Plaintiffs’ Counsel calculated Defendants’ total potential exposure assuming Plaintiffs prevailed on all aspects of their claims at trial, but weighed that value against the chance of succeeding at class certification and trial. If Plaintiffs continued to prosecute the claims rather than accept a settlement, Plaintiffs would have faced deadlines t0 file a motion for class certification, had t0 have engaged in more formal written discovery and taken depositions, expended time and resources to resolve disputes, prepared and filed potential dispositive motions and/or discovery motions, and engaged in extensive trial preparation. An adverse ruling at any one 0f these stages could have prevented the Class from obtaining any recovery 16. Plaintiffs’ minimum wage and overtime claims were premised 0n the theories that Defendant required Class Members t0 work invalid Alterative Workweek Schedules and failed t0 pay them daily overtime compensation, illegally rounded time punches, and required Class Members to work 0n call shifts Without adequate compensation. Plaintiffs calculated that the AWS overtime claim was worth approximately $320,040, the rounding claim was worth approximately $6,247, and the 0n- call claim was worth approximately $2 million. However, Defendant argued it adopted a valid Alternative Workweek Schedule, exempting it from overtime requirements, its rounding policy was neutral, and Class Members were not actually 0n call for the length of time alleged. Although Plaintiffs 3 DECLARATION OF JESSICA L. CAMPBELL IN SUPPORT OF 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 believed the AWS claims were very strong, the rounding claim was very small and the on-call claim could be hard t0 prove because it would depend 0n evidence 0f the employer’s control, which could be an individualized issue. As such, this claim was discounted in settlement negotiations. 17. Plaintiffs’ theory of liability for meal and rest break Violations was based 0n Defendant’s lack 0f meal and rest policies for the maj ority 0f the class period. Plaintiffs’ damages estimate about $1 millions for rest period Violations and about $294,751 for meal period Violations. However, Defendant could argue through time records that class members received their meal periods and the rest period Violations would rely 0n Class Member testimony, making it hard t0 certify the claim. As such, these claims were also discounted in settlement negotiations. 18. Plaintiffs alleged class members were required to use their personal cell phones for work. Plaintiffs estimated the damages could reach about $30,078 but Defendant could argue that the cell phone usage was optimal, raising individualized issues for class certification. 19. Plaintiffs’ Counsel also considered the arguable presence ofvarious penalties, and weighed the potential recoveries against probable defenses. Specifically, Defendant could argue that Plaintiffs could not prove the “willful” prong needed t0 obtain waiting time penalties under Lab. Code § 203. Additionally, Defendant could argue that Plaintiffs could not show that Class Members suffered an “injury” as a result 0fwage statement Violations, as required by Cal. Lab. Code § 226. Although the Class arguably could have seen a payout 0f approximately $560,280 for waiting time penalties and $156,000 for wage statement penalties, Plaintiffs would not recover any 0f these derivative penalties if they failed t0 prove the underlying claims. 20. The PAGA claim presented even higher hurdles. Although Plaintiffs’ Counsel found Defendant’s exposure could potentially reach approximately $501,300 under Lab. Code § 2699(f), assuming the initial penalty rate of $100 for each pay period, Plaintiffs would have t0 prove a Violation in every pay period. Most importantly, the Court would have discretion t0 reduce the PAGA award based 0n whether the amount 0f the award would be “unjust, arbitrary and oppressive, 0r confiscatory.” Lab. Code § 2699(e)(2). In theory, the Court could reduce the award by 99% if it so Wished. Given the small size 0f the employer, Plaintiffs were doubtful they could recover significant PAGA penalties, 4 DECLARATION OF JESSICA L. CAMPBELL IN SUPPORT OF 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 especially if a large class judgment was entered for the same Violations. Accordingly, Plaintiffs could not place a high value 0n the PAGA penalties, and therefore allocated $50,000 of the Gross Settlement Amount to settle these Claims. 21. Thus, Plaintiffs believe the settlement amount is fair in light of these circumstances. Incentive Award 22. Plaintiffs had the option to pursue their claims individually, but instead chose to pursue this class action, delaying individual recovery until approval 0f a class action settlement. Throughout the case, Plaintiffs assisted counsel in gathering the evidence necessary t0 prosecute the class claims, maintained regular contact With counsel, were available 0n the day 0fmediation and communicated With their attorneys during the day of mediation to answer critical questions, and reviewed the Settlement t0 make sure it was fair t0 the Class. None 0f the other 97 Class Members had shown any interest in bearing the expense and burden 0f litigating their own claims. N0 action would likely have been taken by Class Members individually, and no compensation would have been recovered for them, but for Plaintiffs’ services 0n behalf of the Class. 23. The amount 0f Plaintiffs’ requested Incentive Awards were not negotiated until after the Parties agreed to the Gross Settlement Amount and many other terms. 24. At the final approval stage, Plaintiffs Will further support the request for an Incentive Award by a declaration that addresses the factors for the award. Counsel’s Qualifications 25. Aegis Law Firm prosecutes wage and hour cases, including class actions 0n behalf 0f employees and others who have had their rights violated. Aegis, either on its own, 0r With co -Counsel is currently serving as plaintiffs’ counsel 0f record in dozens 0f wage and hour and employment class action cases pending in both state and federal court. 26. The attorneys working on this case have been appointed class counsel in many cases, through both contested motions and settlement approval motions. 27. Aegis has litigated and successfully resolved many wage and hour class action cases involving failure t0 pay wages and derivative Labor Code claims and penalties. See, e.g., Roman, er al. 5 DECLARATION OF JESSICA L. CAMPBELL IN SUPPORT OF 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 v. TRMManufacturing, Ina, Riverside Superior Court, Case No. RIC1706458 (class certification granted 0n December 17, 2020 for all current and former non-exempt workers’ 0n issues ofrounding, meal period, and rest period claims); Gamboa v. Kamran, et al., San Bernardino Superior Court, Case N0. CIVDSl605273 (class certification granted on September 16, 2019, for factory workers on issues of rounding, automatic deduction of first meal period, and second meal period); Roma, et. al, v. GMRI, Inc. d/b/a/ Olive Garden, United States District Court Central District of California, Case N0. EDCV-12- O715-JLQ (class certification granted for restaurant workers’ rest period claims); Sawyer v. Retail Data, LLC, Orange County Superior Court, Case N0. 30-2014-00753767-CU-OE-CXC (unpaid wage and rest break claims for piece rate workers); Gonzalez v. SFFI Company, Ina, et. al, San Bemardino County Superior Court, Case N0. CIV D81504287 (unpaid wages, meal period and rest break claims for non- exempt employees); Antoine v. Riverstone Residential California, Ina, et. al, Sacramento County Superior Court, Case N0. 34-2013-00155974 (rate of pay, on-call time, unpaid wage, meal period, rest break, and expense reimbursement claims for non-exempt employees); Nguyen v. Pharmerica, Orange County Superior Court, Case No. 30-2014-00716072-CU-OE-CXC (unpaid wages and unreimbursed expenses for pharmacists); Orellana v. Westlake, Los Angeles County Superior Court, Case N0. BC539614 (unpaid overtime, meal period and rest break claims for call center employees); Kent v. Mountain View Child Care, Ina, Los Angeles County Superior Court, Case N0. BC539633 (minimum wage, overtime, meal period, and rest break claims for hospital workers); Durroh v. East West Bank, Los Angeles County Superior Court, Case No. BC528860 (overtime claims for failure t0 include bonuses in regular rate of pay for bank workers); O'Brien et al. V. Pizza Hut ofSoutheast Kansas, Inc. et al., Riverside County Superior Court, Case N0 MCC 1301030 (meal period and expense reimbursement claims for delivery drivers); Bell v. Prime Healthcare, Orange County Superior Court, Case N0. 30-201 1-00475240-CU-OE-CXC (overtime claims for failure to include shift premiums in regular rate 0f pay and failure t0 provide meal and rest periods t0 hospital workers), Grana v. Toys R US-Delaware, Ina, Central District of California, Case No. 2: 13-cv-01302-DSF-JCG (bag check claims for unpaid wages and failure t0 provide meal periods and rest breaks to retail employees); Mendez v. H.J. Heinz Company, L.P., et. al, Orange County Superior Court, Case No. 30-2013-00644915-CU-OE- 6 DECLARATION OF JESSICA L. CAMPBELL IN SUPPORT OF 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 CXC (failure to pay all wages t0 factory workers due t0 rounding practice); Fresh & Easy Wage and Hour Cases, Los Angeles Superior Court, Cas No. JCCP 4705 (failure to provide meal and rest periods to supermarket workers); Lunsford v Stater Bros., Riverside Superior Court, Case N0. RIC 1104475 (failure to provide meal and rest periods t0 supermarket workers); Gregg v. Bela, Riverside Superior Court, Case N0. RIC 523697 (unpaid wages and missed meal and rest periods due t0 misclassification 0f newspaper delivery employees); Brown v. Experian Information Solutions, Ina, et. al., Orange County Superior Court, Case No. 30-2012-00375163 (misclassification 0f engineers and similar positions); Tereth v. Shakey’s USA, Ina, Los Angeles Superior Court, Case N0. BC441359 (failure to provide meal and rest periods t0 restaurant employees); Azurin v. Harbor Distributing LLC, et. al., Los Angeles Superior Court, Case No. BC421392 (failure t0 pay overtime wages, provide meal and rest periods, reimburse business expenses to Account Managers); Cafl’ero v. ABC (failure t0 provide meal periods and reimburse expenses of therapists). A11 cases cited above were successfully resolved for the plaintiff classes. 28. Kashif Haque received his J.D. in 2001 from Washington University School 0f Law. While in law school, Mr. Haque was a member 0f the Law Review Editorial Board, author 0f an article published in the Law Review, Executive Board Member 0f Moot Court, and a member 0f the Dean’s List. He received a Bachelor’s 0f Science in Business Administration from the University 0f Central Missouri in 1998, Where he was a member 0f the Beta Alpha Psi honors fraternity. 29. Since 2004, Mr. Haque has exclusively focused his practice 0n plaintiff’s employment litigation with a specific focus 0n wage and hour claims. Since then, he has represented over 500,000 employees With their employment claims, many 0f Which included wage and hour claims. He has been appointed class counsel in approximately 100 cases and is currently litigating over 150 employment wage and hour class action cases. 30. Mr. Haque authored a book 0n employment litigation strategies with West Publishing and has been invited to speak on class action and wage and hour issues 0n numerous occasions. He has spoken at seminars by the State Bar 0f California, California Employment Lawyer’s Association (CELA), Orange County Bar Association, and various other CLE providers. Mr. Haque is the former 7 DECLARATION OF JESSICA L. CAMPBELL IN SUPPORT OF 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 Chair for the Labor and Employment Section 0f the Orange County Bar Association. He was selected as one 0f the Top 50 Attorneys in Orange County by Super Lawyers for 2017 and 2019. He has been a Super Lawyer for every year from 2009 t0 the present. OC Register/Metro has selected him as one of the Top 5 Employment Lawyers in Orange County for every year the list was published, from 2012 to 20 1 8. 31. Samuel A. Wong is a graduate 0f University of Pennsylvania Law School, Where he received his J.D. in 2001. Mr. Wong received a Bachelors of Arts in Sociology from the University of California at Berkeley in 1997. 32. After graduation from law school in 2001, the same year in Which Mr. Wong took and successfully passed the California Bar Exam, Mr. Wong moved t0 back to Los Angeles, California where he was employed at Paul Hastings, Janofsky & Walker, LLP. While working in the employment department at Paul Hastings, he was involved in numerous wage and hour class action lawsuits and other employment related matters. 33. Mr. Wong became a founding partner of Aegis Law Firm, PC in 2003, and focused his practice 0n plaintiff’s side employment work. Throughout his years 0f practice, Mr. Wong represented and obtained successful outcomes for his clients, including awards through arbitration and trial. 34. Mr. Wong is a member of the Orange County Bar Association, Orange County Trial Lawyers Association, and California Employment Lawyers Association. 35. Mr. Wong was chosen by Law and Politics Magazine as a Super Lawyer Rising Star, representing one of the top 2.5% 0f lawyers under 40 in Southern California in 201 1, 2012, 2013, and 2014. He was chosen by Law and Politics Magazine as a Super Lawyer in 2015, 2016, 2017, and 2018. Mr. Wong was also chosen as a Top Attorney in the field 0f employment law by OC Metro in 2014, 2015, and 2018. 36. I am a partner at Aegis Law Firm. I was admitted t0 the California Bar in December 0f 201 1, and received my J.D. from Santa Clara University School ofLaw and my B.A. from the University of California, Berkeley. I have dedicated my career t0 plaintiffs’ side class actions. My experience includes successful work 0n class action appeals, class certification motions, and class settlements. I 8 DECLARATION OF JESSICA L. CAMPBELL IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT £11th \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was chosen by Law and Politics Magazine as a Super Lawyer Rising Star, representing one 0f the top 2.5% of lawyers under 40 in Southern California in 2018-2021. 37. Fawn F. Bekam is an associate at Aegis Law Firm. Ms. Bekam is a graduate ofUniversity of California, Irvine School of Law, where she received her J.D. in 2015. She received her B.A. from University of California, Los Angeles in 2012. While in law school, Ms. Bekam was a recipient 0f numerous honors, including multiple Dean’s Awards, Dean’s Merit Scholarship, and pro bono graduation honors. Also during law school, she externed for Judge Di Cesare 0f the Orange County Superior Court, was a research assistant to Dean Erwin Chemerinsky, and participated in three sem esters 0f the Immigrants Rights Clinic as a certified law student. Since August 2017, 100% of Ms. Bekam’s caseload is plaintiff’s-side cases for wage and hour Violations, wrongful termination, discrimination, harassment, and retaliation. 38. Aegis Law Firm has performed significant work and expended litigation costs in prosecuting the matter with no guarantee 0f any payment. 39. At final approval, Plaintiffs’ Counsel will fully briefthe merits of its request for the award of attorneys’ fees and litigation costs. Exhibits 40. A true and correct copy 0f the Joint Stipulation of Settlement is attached hereto as Exhibit 1. 41. A true and correct copy of the LWDA’S confirmation that my office submitted the Joint Stipulation of Settlement is attached hereto as Exhibit 2. I declare under penalty 0f perjury under the laws 0f the State 0f California that the foregoing is true and correct. Executed 0n December 8, 2021 at Irvine, California. gfizM (essica L. Campbell 9 DECLARATION OF JESSICA L. CAMPBELL IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT EXHIBIT 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AEGIS LAW FIRM, PC SAMUEL A. WONG, State Bar No. 217 1 04 KASHIF HAQUE, State Bar N0. 218672 JESSICA L. CAMPBELL, State Bar N0. 280626 FAWN F. BEKAM, State Bar No. 3073 12 fbekam@aegislawfirm.com 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Attorneys for Plaintiffs Javier Diaz and George Mendez, individually, and on behalf of all others similarly situated. [Additional counsel listed 0n followingpage] SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA JAVIER DIAZ and GEORGE MENDEZ, Case N0. 21CV383425 individually and 0n behalf of all others similarly situated, Assignedfor allpurposes t0: Hon. Sunil R. Kulkarni, Dept. 1 Plaintiffs, VS, JOINT STIPULATION OF SETTLEMENT BGIS GLOBAL INTEGRATED SOLUTIONS US, LLC; and DOES 1 through 20, inclusive, Defendants. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 David L. Cheng, Bar No. 240926 dcheng@f0rdharrison.com Paul M. Suh, Bar N0. 321028 psuh@fordharrison.com FORD & HARRISON LLP 350 South Grand Avenue, Suite 2300 Los Angeles, CA 90071 Telephone: 2 1 3-237-2400 Facsimile: 2 1 3-237-2401 Attorneys for Defendant BGIS GLOBAL INTEGRATED SOLUTIONS US LLC (erroneously sued as BGIS GLOBAL INTEGRATED SOLUTIONS US, LLC) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It is stipulated and agreed by and among the undersigned Parties, subject t0 the approval 0f the Court pursuant t0 the California Rules 0f Court, that the Settlement 0f this Action shall be effectuated upon and subject to the following terms and conditions. Capitalized terms used herein shall have the meanings set forth in Article I 0r as defined elsewhere in this Joint Stipulation 0f Settlement (“Agreement” 0r “Settlement”). This Agreement is made by and between Named Plaintiffs Javier Diaz and George Mendez (“Named Plaintiffs”) and the Class Members, 0n the one hand, and Defendant BGIS Global Integrated Solutions US LLC (“BGIS” 01‘ “Defendant”), 0n the other hand. Named Plaintiffs and Defendant collectively are referred t0 in this Agreement as “the Parties.” The Parties agree that the Action shall be, and hereby is, ended, settled, resolved, and concluded by agreement 0f Defendant to pay the settlement amount of One Million Two Hundred Seventy-Five Thousand Dollars ($1,275,000.00) as provided in Section 3.07(a) below (“Gross Settlement Amount”) pursuant t0 the terms and conditions of this Agreement and for the consideration set forth herein, including but not limited t0, a release 0f all claims by Named Plaintiffs and the Class Members as set forth herein. ARTICLE I DEFINITIONS Unless otherwise defined herein, the following terms used in this Agreement shall have the meanings ascribed to them as set forth below: a. “Action” means the actions described as follows: Javier Diaz v. BGIS Global Integrated Solutions US, LLC Case N0. 21-cv-02804-VKD, commenced on February 16, 2021, in the Superior Court of the State 0f California for the County 0f Santa Clara and currently pending in the United States District Court Northern District of California (herein separately defined as the “Federal Action”); and Javier Diaz and George Mendez v. BGIS Global Integrated Solutions US, LLC, Case N0. 21CV383425, commenced 0n June 22, 2021, in the Superior Court of the State 0f California for the County 0f Santa Clara (herein separately defined as the “State Action”). b. “Agreement” means this Joint Stipulation 0f Settlement, including the attached Exhibit(s). 2 of 27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 c. “AWS Subclass” means all current and former non-exempt employees who are or were employed by Defendant in California at any time during the Class Period and worked a 4 days, 10-hours or a 3 days, 12-hours alternative workweek schedule, except for those non-exempt employees who worked a 3 days, 12-hours alternative workweek schedule and who were paid daily overtime for all hours over eight (8) in a day. d. “Class” means all current and former non-exempt employees who are or were employed by Defendant in California at any time during the Class Period. e. “Class Counsel” means the attorneys for the Class and the Class Members, Who are: AEGIS LAW FIRM, PC Samuel A. Wong Kashif Haque Jessica L. Campbell Fawn F. Bekam 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 f. “Class List” means a list based 0n Defendant’s business records that identifies each Class Member’s name, last known home or mailing address, Social Security number 0r, as applicable, other taxpayer identification number, their membership in the AWS Subclass, their membership as a PAGA Group Member, and the number 0f Qualifying Workweeks worked during the Class Period. g. “Class Member(s)” means all members of the Class. h. “Class Period” means August 17, 2016 through November 12, 2021, or the date the Court grants preliminary approval, whichever is sooner. i. “Court” means the California Superior Court for the County 0f Santa Clara, Where the State Action is currently pending. j. “Date of Finality” means the earliest date, following entry by the Court 0f an order and judgment finally approving the Settlement, upon which one 0f the following have occurred: (i) if no objection is filed t0 the settlement and n0 objector appears at the hearing on final approval, the date 0f entry 0f an order in the State Action granting final approval, (ii) if an obj ection is filed to the 30f27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 settlement, 0r an obj ector appears at the hearing on final approval, then the later 0f the following: (a) the expiration 0f all potential appeals periods Without a filing 0f a notice 0f appeal of the final approval order or judgment; (b) final affirmance of the final approval order and judgment by an appellate court as a result 0f any appeal(s); or (c) final dismissal 0r denial 0f all such appeals (including any petition for review, rehearing, certiorari, etc.) such that the final approval order and judgment is n0 longer subj ect to further judicial review. k. “Defendant” means BGIS Global Integrated Solutions US LLC. 1. “Defense Counsel” means counsel for Defendant: David L. Cheng Paul M. Suh FORD & HARRISON LLP 350 South Grand Avenue, Suite 2300 Los Angeles, CA 90071 Telephone: 2 1 3-237-2400 Facsimile: 2 1 3-237-2401 m. “Disposition” means the method by which the Court approves the terms 0f the Settlement and retains jurisdiction over its enforcement, implementation, construction, administration, and interpretation. n. “Final Order Approving Settlement 0f Class Action” or “Final Order” means the final formal court order signed by the Court following the hearing 0n Named Plaintiffs’ Motion for Final Approval, in accordance With the terms herein, approving this Agreement. o. “Gross Settlement Amount” means One Million Two Hundred Seventy-Five Thousand Dollars and Zero Cents ($1,275,000.00) t0 be paid by Defendant as provided by this Agreement t0 settle this Action. A11 payments to the Class, the LWDA Payment, administration costs, attorney’s fees and costs, and Incentive Awards, pursuant t0 Section 3.07(a) below, shall be paid out of the Gross Settlement Amount. The employer’s share of payroll taxes arising from the payments made under this settlement shall be paid by Defendant separate from and in addition t0 the Gross Settlement Amount. The Gross Settlement Amount is subj ect t0 a pro rata increase pursuant to Section 3.04(e) below. No part of the Gross Settlement Amount shall revert t0 Defendant. 4of27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 p. “Incentive Awards” means a monetary amount 0f up to Ten Thousand Dollars ($ 1 0,000.00) for each ofthe Named Plaintiffs, subj ect to Court approval, in recognition 0ftheir effort and work in prosecuting the Action on behalf of Class Members, and for their general release of claims. q. “Individual Settlement Payment(s)” means each Participating Class Member’s respective share of the Net Settlement Amount. Individual Settlement Payments will be determined by the calculations provided in this Agreement. r. “LWDA” means The State 0f California Labor and Workforce Development Agency. s. “LWDA Payment” means 75% 0f the $50,000 allocated to the settlement 0fPAGA Claims which, subject t0 Court approval, Will be paid t0 the LWDA pursuant t0 Section 3.07(e) of this Agreement, as provided for below. t. “Motion for Final Approval” means Named Plaintiffs’ submission 0f a written motion, including any evidence as may be required for the Court t0 conduct an inquiry into the fairness 0f the Settlement as set forth in this Agreement, t0 conduct a final fairness and approval hearing, and t0 enter a Final Order in this Action. The Motion for Final Approval shall be filed in Diaz, er al. v. BGIS Global Integrated Solutions US, LLC, Case N0. 21CV383425 (Santa Clara Cty. Super. Ct.) u. “Motion for Preliminary Approval” means Named Plaintiffs’ submission 0f a written motion, including any evidence as may be required for the Court to grant preliminary approval of the Settlement as required by Rule 3.769 of the California Rules of Court. The Motion for Preliminary Approval shall be filed in in Diaz, et al. v. BGIS Global Integrated Solutions US, LLC, Case N0. 21CV383425 (Santa Clara Cty. Super. Ct.) V. “Named Plaintiffs” means Javier Diaz and George Mendez. w. “Net Settlement Amount” means the Gross Settlement Amount less Court-approved administration costs, Class Counsels’ attorney’s fees and costs, Incentive Awards, and the LWDA Payment, pursuant t0 Section 3.06(a)-(f) below. 50f27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 X. “Non-Participating Class Member(s)” means any Class Member(s) who submit t0 the Settlement Administrator a valid and timely written request t0 be excluded from the Class pursuant to Section 3.05(b) below. y. “Notice Packet” means the Notice of Proposed Class Action Settlement in a form substantially similar to the Notice Packet attached hereto as Exhibit A, subject t0 Court approval. z. “PAGA” means the California Private Attorneys General Act of 2004, which is codified in California Labor Code §§ 2698 et seq. aa. “PAGA Settlement Amount” means the portion 0f the Gross Settlement Amount allocated t0 the resolution 0fPAGA Group Members’ claims arising under PAGA. The Parties have agreed that the PAGA Settlement Amount is Fifty Thousand Dollars ($50,000), subject t0 Court approval. Of the PAGA Settlement Amount, 75% Will be considered the LWDA Payment, and the remaining 25% will be added t0 the Net Settlement Amount and distributed to PAGA Group Members. bb. “PAGA Group Members” means all Class Members employed by Defendant at any time between August 17, 2016 through November 12, 2021 or the date the Court grants preliminary approval, Whichever is sooner (“PAGA Period”), subj ect t0 Court approval. cc. “Participating Class Member(s)” is defined as a Class Member Who does not timely exclude himself 0r herselffrom the Settlement. Each Participating Class Member Will be paid his/her Individual Settlement Payment. dd. “Preliminary Approval Date” means the date the Court preliminarily approves the Settlement embodied in this Agreement. ee. “Qualified Settlement Fund” 0r “QSF” means a fund Within the meaning 0f Treasury Regulation § 1.468B-1, 26 CFR § 1.468B-1 et seq., that is established by the Settlement Administrator for the benefit of Participating Class Members. ff. “Qualifying Workweeks” means the number 0f weeks that Class Members worked for Defendant as non-exempt employees during the Class Period. 60f27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 gg. “Released Parties” means Defendants and their predecessors, successors, parents, subsidiaries, affiliates and/or related entities and each 0ftheir respective directors, members, officers, committee members, supervisors, employees, representatives and agents. hh. “Response Deadline” means the deadline by which Class Members must postmark or fax to the Settlement Administrator requests for exclusion 0r written notices 0f objection. The Response Deadline Will be forty-five (45) calendar days after the initial mailing of the Notice Packet by the Settlement Administrator, unless the forty-fifth (45th) calendar day falls 0n a Sunday or federal holiday, in Which case the Response Deadline Will be extended t0 the next day 0n Which the U.S. Postal Service is open. The Response Deadline will be extended as set forth herein if there is a re-mailing. ii. “Settlement Administration Costs” means all costs incurred by the Settlement Administrator in administration of the Settlement, including, but not limited to, mailing of notice to the class, calculation 0f Individual Settlement Payments, generation 0f Individual Settlement Payment checks and related tax reporting forms, administration 0funclaimed checks, and generation 0f checks t0 Class Counsel for attorneys’ fees and costs, to Named Plaintiffs for their Incentive Awards, and t0 the LWDA. The Settlement Administration Costs shall be paid from the Gross Settlement Amount. jj. “Settlement Administrator” means Phoenix Settlement Administrator, which the Parties have agreed Will be responsible for the administration of the Individual Settlement Payments t0 be made by Defendant from the Gross Settlement Amount and related matters under this Agreement. ARTICLE II CONTINGENT NATURE OF THE AGREEMENT Section 2.01: Stipulation 0f Class Certification for Settlement Purposes Because the Parties have stipulated t0 the certification 0f the Class With respect t0 all causes 0f action alleged in the Action for settlement purposes only, this Agreement requires preliminary and final approval by the Court. Accordingly, the Parties enter into this Agreement on a conditional basis. This Agreement is contingent upon the approval and certification by the Court. If the Date 0f Finality 7 0f 27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 does not occur, the fact that the Parties were willing t0 stipulate for the purposes of this Agreement t0 a Class shall have n0 bearing 0n, nor be admissible in connection With, the issue 0f certification of the Class with respect to all causes of action alleged in the Action. Defendant does not consent to certification 0f the Class for any purpose other than to effectuate settlement 0f the Action. If the Date of Finality does not occur, 0r if Disposition 0f this Action is not effectuated, any certification 0f the Class as t0 Defendant Will be vacated and Named Plaintiffs, Defendant, and the Class will be returned t0 their positions with respect t0 the Action as if the Agreement had not been entered into. In the event that the Date of Finality does not occur: (a) any Court orders preliminarily 0r finally approving certification of any class contemplated by this Agreement shall be null, void, and vacated, and shall not be used or cited thereafter by any person 0r entity; and (b) the fact of the settlement reflected in this Agreement, the fact that Defendant did not oppose the certification 0f a Class under this Agreement, 0r that the Court preliminarily approved the certification 0f the Class, shall not be used 0r cited thereafter by any person 0r entity, including in any manner whatsoever, including Without limitation any contested proceeding relating to the certification 0f any class. If the Date 0f Finality does not occur, this Agreement shall be deemed null and void, shall be 0f n0 force or effect whatsoever, and shall not be referred t0 0r used for any purpose whatsoever. Defendant expressly reserves the right to challenge the propriety of class certification in the Action for any purpose, if the Date 0f Finality does not occur. The Parties and their respective counsel shall take all steps that may be requested by the Court relating to the approval and implementation of this Agreement and shall otherwise use their respective best efforts t0 obtain Court approval and implement this Agreement. If the Court does not grant the Motion for Preliminary Approval and/or the Motion for Final Approval, the Parties agree t0 meet and confer t0 address the Court’s concerns. If the Parties are unable to agree upon a resolution, the Parties agree to seek the assistance of mediator Hon. Carl J. West (Ret) t0 resolve the dispute. ARTICLE III PROCEDURE FOR APPROVAL AND IMPLEMENTATION OF THE SETTLEMENT The procedure for obtaining Court approval 0f and implementing this Agreement shall be as 8 0f 27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 follows: Section 3.01: Amendment 0f State Action and StaV 0f Federal Action For settlement purposes only, the Parties agree to the filing of an amended complaint in the State Action, which adds all claims asserted in the Federal Action; and a stay 0f the Federal Action pending approval 0f the Settlement by the Court in the State Action. A copy of the amended complaint, which Plaintiffs filed 0n September 30, 2021, is attached hereto as Exhibit B. With respect t0 the amended complaint, the Parties specifically agree as follows: a. A stipulation t0 stay the Federal Action pending approval of the Settlement by the Court in the State Action shall be filed within seven (7) calendar days 0f the Parties fully executing this Agreement; b. The Parties agree that Defendant is not required t0 respond t0 the amended complaint and that there shall be n0 waiver argument asserted against Defendant for not responding t0 a pleading that the Parties agreed could be filed only for purposes of effectuating this Settlement. Section 3.02: Motion for Conditional Class Certification and Preliminarv Approval Named Plaintiffs Will bring a motion before the Court for an order conditionally certifying the Class t0 include all claims pled in the Action based on the preliminary approval of this Agreement. Such submission shall include a declaration and proof t0 the Court verifying that Class Counsel has provided any and all notices 0f the settlement t0 the LWDA, as set forth in California Labor Code section 2699(1)(2). Class Counsel shall provide the Court and Defense Counsel with proof 0f compliance With California Labor Code section 2699(l)(2) Within seven (7) calendar days of Named Plaintiffs filing their Motion for Preliminary Approval. The date that the Court grants preliminary approval of this Agreement will be the “Preliminary Approval Date.” Section 3.03: The Settlement Administrator The Parties have chosen Phoenix Settlement Administrators t0 administer this Settlement and t0 act as the Settlement Administrator, including but not limited to distributing and responding t0 inquiries about the Notice Packet, determining the validity of exclusions/opt-outs, calculating the Net Settlement Amount and the Individual Settlement Payments, issuing the Individual Settlement 9 0f 27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Payment checks and distributing them t0 Participating Class Members, generating and filing related tax reporting forms, establishing and maintaining the QSF, and issuing the payment t0 Class Counsel for attorneys’ fees and costs, the Incentive Award checks to Named Plaintiffs, and the employer payroll taxes to the appropriate taxing authorities. The Settlement Administrator shall expressly agree t0 all 0f the terms and conditions 0f this Agreement. A11 costs 0f administering the Settlement, including but not limited to all costs and fees associated with preparing, issuing and mailing any and all notices t0 Class Members and/or Participating Class Members, all costs and fees associated With computing, processing, reviewing, and mailing the Individual Settlement Payments, all costs and fees associated With preparing any tax returns and any other filings required by any governmental taxing authority or agency, all costs and fees associated with preparing any other checks, notices, reports, 0r filings t0 be prepared in the course of administering disbursements from the Net Settlement Amount, and any other costs and fees incurred and/or charged by the Settlement Administrator in connection With the execution 0f its duties under this Agreement (“Settlement Administration Costs”), shall be paid to the Settlement Administrator from the Gross Settlement Amount. Section 3.04: Notice t0 Class Members No later than five (5) business days after the Preliminary Approval Date, Defendant will provide, subject to a mutually agreeable protective order entered by the Court the Settlement Administrator With a “Class List” in electronic format based 0n its business records, identifying the names 0f the Class Members, their last known home addresses, Social Security numbers or, as applicable, other taxpayer identification number, their membership in the AWS Subclass, their membership as a PAGA Class Member, and weeks worked during the Class Period. Within ten (10) business days of receiving a Class List from Defendant, the Settlement Administrator will send Class Members, by first-class mail, at their last known address, the Court approved Notice Packet, including notice 0f this Settlement and 0f the opportunity t0 opt out 0f the Settlement Class. The Notice Packet Will include a calculation of the Class Member’s approximate share 0f the Net Settlement Amount. Class Members Will have forty-five (45) days from the date 0f mailing in Which t0 postmark objections 0r requests for exclusion. Prior t0 the initial mailing, the 10 of 27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Settlement Administrator Will check all Class Member addresses against the National Change of Address database and shall update any addresses before mailing. The Settlement Administrator Will skip trace and re-mail all returned, undelivered mail within five (5) days of receiving notice that a Notice Packet was undeliverable. If a Class Member’s notice is re-mailed, the Class Member shall have fifteen (15) calendar days from the re-mailing, 0r forty-five (45) calendar days from the date 0f the initial mailing, whichever is later, in which to postmark objections or requests for exclusion. Class Members shall not be required t0 submit claim forms in order t0 receive an Individual Settlement Payment. Ifthe Notice Packet is returned with a forwarding address, the Settlement Administrator shall re-mail the Notice Packet to the forwarding address. With respect t0 those Class Members Whose Notice Packet is returned t0 the Settlement Administrator as undeliverable, the Settlement Administrator shall promptly attempt to obtain a valid mailing address by performing a skip trace 0r mass search 0n LexisNeXis 01" comparable databases based 0n set criteria and, if another address is identified, shall mail the Notice Packet t0 the newly identified address. It is the intent 0f the Parties that reasonable means be used to locate Class Members and that the Settlement Administrator be given discretion to take steps in order t0 facilitate notice of the Settlement and delivery 0f the Individual Settlement Payments t0 all Participating Class Members. If the Notice Packet is re-mailed, the Settlement Administrator will note for its own records and notify Class Counsel and Defense Counsel 0fthe date of each such re-mailing as part 0f a weekly status report provided t0 the Parties. In the event a Class Member’s Notice Packet remains undeliverable sixty (60) calendar days after the Notice Packet was initially mailed, the Settlement Administrator Will not mail the Class Member’s Individual Settlement Payment. The Settlement Administrator will hold the Class Member’s Individual Settlement Payment during the check cashing period 0n behalf of the Class Member. If at the conclusion 0f the check cashing period the Class Member’s Notice Packet and Individual Settlement Payment remain undeliverable and/or unclaimed and uncashed, the Settlement Administrator Will distribute the funds from unclaimed/uncashed checks in accordance with the procedures set forth in Section 3.07(g) below. 11 of 27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 N0 later than twenty (20) court days prior t0 the Final Fairness and Approval Hearing, the Settlement Administrator shall provide Defense Counsel and Class Counsel With a declaration attesting to completion ofthe notice process, including any attempts to obtain valid mailing addresses for and re-sending 0f any returned Notice Packets, as well as the number 0f valid requests for exclusion and obj ections that the Settlement Administrator received. Section 3.05: Responses t0 Notice a. Class Member Disputes If any Class Member disagrees With Defendant’s records as t0 his or her Qualifying Workweeks during the Class Period as reflected in the Notice Packet, the Class Member shall set forth in writing the Qualifying Workweeks he/she claims t0 have worked during the Class Period and submit such writing t0 the Settlement Administrator by the Response Deadline, along With any supporting documentation. The Notice will also provide a method for the Class Member t0 challenge the employment data on Which his 0r her Individual Settlement Payment is based. The Settlement Administrator shall contact the Parties regarding the dispute and the Parties Will work in good faith t0 resolve it. If the Parties are unable t0 resolve the dispute, the Settlement Administrator will be the final arbiter of the Qualifying Workweeks for each Class Member during the Class Period based 0n the information provided t0 it. b. Requests for Exclusion from Class In order for any Class Member t0 validly exclude himself 0r herself from the Class and this Settlement (126., t0 validly opt out), a written request for exclusion must be signed by the Class Member 0r his or her authorized representative, and must be sent to the Settlement Administrator, postmarked n0 later than the Response Deadline (01' fifteen (15) days after the Settlement Administrator re-mails the Notice to the Class Member, whichever is later). The Notice Packet shall contain instructions 0n how t0 validly exclude himself 01‘ herself from the Class and this Settlement (126., opt out), including the language t0 be used in a request for exclusion. The date of the initial mailing of the Notice Packet, and the date the signed request for exclusion was postmarked, shall be conclusively determined according t0 the records 0f the Settlement Administrator. Any Class Member who timely and validly requests exclusion from the Class and this Settlement will not be 12 of 27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 entitled to any Individual Settlement Payment, will not be bound by the terms and conditions 0f this Agreement, and Will not have any right t0 obj ect, appeal, 0r comment thereon. Any Class Member who fails to timely submit a request for exclusion shall automatically be deemed a Class Member whose rights and claims With respect t0 the issues raised in the Action are determined by the Court’s Final Order Approving Settlement 0f Class Action, and by the other rulings in the Action. Thus, said Class Member’s rights to pursue any claims covered by the Action and/or released in this Agreement will be extinguished. If more than fifteen percent (15%) of Class Members validly exclude themselves from the Settlement, Defendant will have the option to void the Settlement. c. Objections t0 Settlement For any Class Member t0 object t0 this Agreement, 0r any term 0f it, the person making the objection must not submit a request for exclusion (i.e., must not opt out), and should send t0 the Settlement Administrator, postmarked 0r faxed n0 later than the Response Deadline (or fifteen (15) days after the Settlement Administrator re-mails the Notice t0 the Class Member, Whichever is later), a written statement of the grounds 0f objection, signed by the objecting Class Member 0r his 0r her attorney, along With all supporting papers. The date of the initial mailing 0f the Notice Packet, and the date the signed objection was postmarked, shall be conclusively determined according to the records of the Settlement Administrator. The Settlement Administrator shall send any objections it receives t0 Defense Counsel and Class Counsel Within three (3) business days 0f receipt. Class Members may also appear at the final approval hearing t0 object. The Court retains final authority with respect to the consideration and admissibility 0f any Class Member obj ections. d. Encouragement 0f Class Members The Parties to this Agreement and the counsel representing such Parties shall not, directly or indirectly, through any person, encourage 0r solicit any Class Member t0 exclude him 01‘ herselffrom this Settlement (opt out), 0r t0 object t0 it. However, Class Counsel may respond t0 inquiries from Class Members. 13 0f27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e. Right 0fNamed Plaintiffs t0 Adjust Gross Settlement Amount Defendant has estimated the number of Qualifying Workweeks as 5,013. If the number of Class Members increases by more than 10% (approximately 5,515 Qualifying Workweeks) as of the end of the Class Period, there will be a pro rata adjustment t0 the Gross Settlement Amount, equal to the Net Settlement Amount multiplied by the percentage in excess 0f 10%. For example, if the number of workweeks increased by 12%, the pro rata adjustment to the Gross Settlement Amount would equal the Net Settlement Amount multiplied by 2%. Section 3.06: Final Fairness and Approval Hearing On the date set forth in the Court’s order granting Named Plaintiffs’ Motion for Preliminary Approval, and Notice Packet, a final fairness and approval hearing shall be held before the Court in order t0 (1) review this Agreement and determine Whether the Court should give it final approval, and (2) consider any objections made and all responses by the Parties to such obj ections. At the final fairness and approval hearing, the Parties shall ask the Court t0 grant final approval t0 this Agreement and shall submit t0 the Court a proposed Final Order. Upon granting final approval 0f the Settlement contained herein, the Parties shall request that final judgment be entered in the State Action and shall request dismissal With prejudice all claims asserted in the Federal Action, and implementing the Releases contained in this Agreement as t0 Named Plaintiffs and all Participating Class Members. Class Counsel shall also prepare and file all necessary filings needed to dismiss the Federal Action With prejudice, including, Without limitation, a stipulation 0r motion for dismissal of the Federal Action with prejudice. Class Counsel shall further provide, Within seven (7) calendar days 0f the Court entering a final judgment that provides for 0r denies an award 0f civil penalties pursuant t0 the California Labor Code, any and all notices of the final judgment t0 the LWDA, as set forth in California Labor Code section 2699(l)(3). Further, Within seven (7) calendar days of request by Defense Counsel, Class Counsel shall provide Defense Counsel With proof 0f compliance With California Labor Code section 2699(l)(3). 14 0f27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Section 3.07: Settlement Pavment Procedures a. Settlement Amount In exchange for the Released Claims set forth in this Agreement, Defendant agrees to pay the Gross Settlement Amount in the amount 0f One Million Two Hundred Seventy-Five Thousand Dollars ($ 1 ,275,000.00), subj ect t0 a pro rata increase under the condition set forth in Section 3.05(e). Within thirty (3 0) calendar days after the Date of Finality, Defendant shall transfer the Gross Settlement Amount plus Defendant’s share of employer-side payroll taxes, as set forth herein, into a QSF established by the Settlement Administrator either directly 0r by sending the funds to the Settlement Administer t0 be deposited and distributed. The Settlement Administrator will use these funds t0 fund payment 0f the Individual Settlement Payments t0 Participating Class Members, Class Counsel’s attorneys’ fees and costs, the Incentive Awards, the LWDA Payment (taken from the amount allocated for the PAGA Settlement Amount), all employer and employee tax deductions and withholdings in respect of the Individual Settlement Payments, and the Settlement Administration Costs. Within ten (10) court days after receiving Defendant’s final payment, funding the Gross Settlement Amount in full, the Settlement Administrator Will pay the Individual Settlement Payments t0 Participating Class Members, Class Counsel’s attorneys’ fees and costs, LWDA Payment (taken from the amount allocated for the PAGA Settlement Amount), the Incentive Awards, and employer and employee tax Withholdings applicable t0 the Net Settlement Amount allocated t0 wages. Prior t0 this distribution, the Settlement Administrator will perform a search based 0n the National Change 0f Address Database t0 update and correct for any known 0r identifiable address changes. b. Payment of Attorneys’ Fees and Costs Class Counsel shall submit an application for an award of attorneys’ fees of up to one-third 0fthe current Gross Settlement Amount, Which, based 0n the current Gross Settlement Amount, shall not exceed Four Hundred Twenty-Five Thousand Dollars and Zero Cents ($425,000.00). Class Counsel shall submit an application for an award 0f costs not to exceed Twenty Thousand Dollars ($20,000.00). Such application for attorneys’ fees and costs shall be heard by the Court at the Final Fairness and Approval Hearing. Defendant shall not object t0 0r oppose any such application in these 15 of 27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amounts. Class Counsel shall serve Defendant with copies of all documents submitted in support of their application for an award of attorneys’ fees and costs. Any attorneys’ fees and costs awarded to Class Counsel by the Court shall be paid from the Gross Settlement Amount and shall not constitute payment to any Class Member(s). The attorneys’ fees and costs for Class Counsel approved by the Court shall encompass all work performed, costs, and expenses related to the investigation, prosecution, and settlement of the Action incurred through the Date of Finality. T0 the extent that the Court approves less than the amount 0f attorney’s fees and/or costs that Class Counsel requests, the difference between the requested and awarded amounts will be reallocated to the Net Settlement Amount. c. Payment 0f Settlement Administration Costs The Settlement Administration Costs shall be paid out 0f the Gross Settlement Amount and shall not constitute payment t0 any Participating Class Member(s). The amount shall not exceed Six Thousand Dollars ($6,000.00). d. Payment 0f Incentive Award t0 Named Plaintiffs Subj ect t0 Court approval, the Named Plaintiffs shall each receive an Incentive Award of up to Ten Thousand Dollars ($10,000.00), the request for which Defendant Will not obj ect t0 0r oppose. The Incentive Awards shall be paid out of the Gross Settlement Amount and shall not constitute payment to any Participating Class Member(s) other than Named Plaintiffs. To the extent that the Court approves less than the amount 0f incentive award that Class Counsel request, the difference between the requested and awarded amounts Will be reallocated t0 the Net Settlement Amount. Because it is the intent of the Parties that the Incentive Awards represent payment to Named Plaintiffs for their service t0 the Class Members, and not wages, the Settlement Administrator Will not withhold any taxes from the Incentive Awards. The Incentive Awards Will be reported on a Form 1099, Which the Settlement Administrator Will provide to Named Plaintiffs and t0 the pertinent taxing authorities as required by law. e. Payment t0 the Labor and Workforce Development Agency In consideration 0f claims made under PAGA, Class Counsel Will request that the Court approve allocation 0f Fifty Thousand Dollars ($50,000) 0f the Gross Settlement Amount to these 16 of 27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claims. Seventy-five percent (75%) 0f this payment will be paid t0 the LWDA, and twenty-five percent (25%) will be paid t0 the Net Settlement Amount for distribution t0 PAGA Group Members. Defendant will not oppose this request. The entire PAGA Settlement Amount will be paid out of the Gross Settlement Amount. The Court’s adjustment, if any, of the amount allocated t0 Named Plaintiffs’ PAGA claim in the Action, Will not invalidate this Agreement. f. Payment 0f Individual Settlement Payments t0 Participating Class Members The Parties agree that the Net Settlement Amount shall be used t0 fund Individual Settlement Payments. The Parties agree that the Net Settlement Amount shall be divided between all Participating Class Members in proportion to the number of individual Qualifying Workweeks for each Class Member. However, for purposes 0f calculating the Individual Settlement Payment, the individual Qualifying Workweeks for all Participating Class Members shall be weighted, in which the Settlement Administrator shall apply a 2/3 weighted ratio factor to the AWS Subclass Member’s Individual Settlement Payment, and a 1/3 weighted ratio factor for all remaining Participating Class Members Who are not members 0f the AWS Subclass. For example, if the data produced by Defendant demonstrates a Participating Class Member, Who is also aAWS Subclass member, worked 10 Qualifying Workweeks during the Class Period, their Individual Settlement Payment shall be calculated as follows: (10 Qualifying Workweeks + Qualifying Workweeks for all Participating Class Members) X Net Settlement Amount X 2/3 As another example, if the data produced by Defendant demonstrates a Class Member (but not an AWS Subclass Member) worked 10 Qualifying Workweeks during the Class Period, their Individual Settlement Payment shall be calculated as follows: (10 Qualifying Workweeks + Qualifying Workweeks for all Participating Class Members) X Net Settlement Amount X 1/3 This weighting 0f Individual Settlement Payments is solely for purposes 0f calculating Individual Settlement Payments, and will not trigger the pro rata increase provision in Section 305(6), above. It is the intent 0f the Parties that the Settlement Administrator be given discretion t0 take steps t0 resolve any issues in respect 0f the application of the formula. 17 of 27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 T0 calculate the minimum amount each Class Member will receive based 0n their individual Qualifying Workweeks, the Net Settlement Amount Will be divided by the total number 0fQualifying Workweeks by all Class Members during the Class Period and then allocated on a pro rata basis (subject t0 the weighted ratio factors described above). Qualifying Workweeks will be rounded up t0 the next whole integer. Each Class Member’s approximate Individual Settlement Payment amount will be included in his or her Notice Packet. After final approval by the Court, the Net Settlement Amount will be dispersed t0 Participating Class Members (those Who did not exclude themselves) on a pro rata basis based on the individual Qualifying Workweeks worked during the Class Period by each Participating Class Member (subject to the weighted ratio factors described above). Each Individual Settlement Payment will represent wages and penalties allocated using the following formula: 1/3 allocated t0 wages; 1/3 allocated t0 interest, and 1/3 allocated t0 penalties. The amounts paid as wages shall be subject t0 all tax Withholdings customarily made from an employee’s wages and all other authorized and required Withholdings and shall be reported by W-2 forms. The employer-side taxes Will be paid separate from and in addition t0 the Gross Settlement Amount. The amounts paid as penalties and interest shall be subj ect to all authorized and required Withholdings other than the tax Withholdings customarily made from employees” wages and shall be reported by IRS 1099 forms. N0 later than ten (10) business days after receiving the Gross Settlement Amount from Defendant, the Settlement Administrator shall prepare and mail the checks for the Individual Settlement Payments to Participating Class Members. Individual Settlement Payments paid from the Net Settlement Amount allocated to wages will be reduced by applicable employer and employee tax Withholdings, and the Settlement Administrator Will issue a Form W-2 for the wage portion 0f the Individual Settlement Payments. The Settlement Administrator will issue a Form 1099 t0 the extent required by law for the interest and penalty portions of the Individual Settlement Payments. Participating Class Members shall have 180 days from the date their Individual Settlement Payment checks are dated t0 cash their Settlement checks. Any checks that are not cashed upon the expiration 0f that 180-day time period Will be void, and the uncashed funds shall be paid t0 the State Controller Unclaimed Property Fund in the name of the Class Member for whom the funds are designated. 18 of 27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 If a check is returned to the Settlement Administrator as undeliverable, the Settlement Administrator shall promptly attempt t0 obtain a valid mailing address by performing a skip trace 0r a mass search on LexisNeXis or a comparable databases based 0n set criteria and, if another address is identified, the Settlement Administrator shall mail the check to the newly identified address. If the Settlement Administrator is unable t0 obtain a valid mailing address through this process, the Settlement Administrator will tender the funds from the undeliverable checks to the State Controller Unclaimed Property Fund in the name 0f the Class Member for whom the funds are designated. g. Default 0n Payment. Defendant’s failure to fund the Gross Settlement Amount within ten (10) calendar days after the date required for funding in accordance With Section 3.07(a) shall be considered a default. In the event Defendant fails t0 timely fund the Gross Settlement Amount, the Settlement Administrator will provide notice t0 Class Counsel and Defendant’s counsel within three (3) business days of the missed payment. Thereafter, Defendant will have seven (7) days t0 cure the default and tender payment t0 the Settlement Administrator. In the event Defendant fails t0 cure the default Within the times set forth herein, Named Plaintiffs may elect to enter judgment against Defendant, on an ex parte basis, for the balance 0f the unpaid Gross Settlement Amount t0 date, and Named Plaintiffs Will be entitled to recover interest at ten percent (10%) per year from the due date for such payment and reasonable attorneys’ fees and costs. h. No Credit Toward Benefit Plans. The Individual Settlement Payments made to Participating Class Members under this Agreement, as well as any other payments made pursuant t0 this Agreement, will not be utilized t0 calculate any additional benefits under any benefit plans to Which any Class Members may be eligible, including, but not limited to: profit-sharing plans, bonus plans, 401(k) plans, stock purchase plans, vacation plans, sick leave plans, PTO plans, and any other benefit plan. Rather, it is the Parties’ intention that this Agreement Will not affect any rights, contributions, 0r amounts t0 Which any Class Members may be entitled under any benefit plans. 190f27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARTICLE IV LIMITATIONS ON USE OF THIS SETTLEMENT Section 4.01: No Admission Defendant disputes the allegations in the Action and disputes that, but for this Settlement, a Class should not have been certified in the Action. This Agreement is entered into solely for the purpose of settling highly disputed claims. Nothing in this Agreement is intended nor will be construed as an admission of liability or wrongdoing by Defendant. Section 4.02: Non-Evidentiarv Use Whether 0r not the Date 0f Finality occurs, neither this Agreement, nor any of its terms, nor the Settlement itself, Will be: (a) construed as, offered, 0r admitted in evidence as, received as, 01‘ deemed t0 be evidence for any purpose adverse t0 Defendant 0r any other 0f the Released Parties, including but not limited t0, evidence 0f a presumption, concession, indication, or admission by any of the Released Parties 0f any liability, fault, wrongdoing, omission, concession, 0r damage, 0r (b) disclosed, referred t0, 0r offered in evidence against any 0f the Released Parties in any further proceeding in the Action or any other proceeding alleging the same or similar allegations or facts in the Action, except for the purposes of effectuating the Settlement pursuant to this Agreement 0r for Defendant to establish that a Class Member has resolved any of his or her claims released through this Agreement. Section 4.03: Nullification The Parties have agreed to the certification of the Class encompassing all claims alleged in the Action for the sole purpose 0f effectuating this Agreement. If (a) the Court should for any reason fail t0 certify this Class for settlement, or (b) the Court should for any reason fail t0 approve this Settlement, 0r (c) the Court should for any reason fail t0 enter the Final Order, 0r (d) the Final Order is reversed, 0r declared 0r rendered void, or (e) the Court should for any reason fail t0 dispose 0f the Action in its entirety, then (i) this Agreement shall be considered null and void; (ii) neither this Agreement nor any of the related negotiations or proceedings shall be of any force or effect; (iii) all Parties to this Agreement shall stand in the same position, Without prejudice, as if the Agreement had been neither entered into nor filed With the Court; and (iv) the fact that the Parties were Willing t0 20 of 27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 stipulate t0 class certification 0f all causes 0f action pled in the Action as part of the Settlement will have n0 bearing 0n, and Will not be admissible in connection With, the issue 0f Whether the Class should be certified by the Court in a non-settlement context in this Action 0r any other action, and in any of those events, Defendant expressly reserves the right t0 oppose certification of the Class. In the event 0f a timely appeal from the Final Order, the Final Order shall be stayed and the Gross Settlement Amount shall not be funded pending the completion 0f the appeal. ARTICLE V RELEASES Section 5.01: Released Claims bv Class Members Upon the date Defendant transfers the Gross Settlement Amount, Named Plaintiffs and Participating Class Members Who d0 not opt out 0f the Settlement, release the Released Parties from any and all claims alleged or Which could have been in alleged based 0n facts pleaded in Named Plaintiffs’ operative complaints in the State Action and Federal Action, during the Class Period, including but not limited t0 the: (1) failure t0 pay minimum wages; (2) failure t0 pay overtime wages; (3) failure t0 provide meal periods; (4) failure to authorize or permit rest periods; (5) failure to pay wages upon separation 0f employment and Within the required time; (6) failure t0 furnish accurate itemized wage statements wage statement Violations; (7) failure t0 reimburse necessary business expenses; (8) failure t0 pay vacation wages in Violation of Cal. Lab. Code 227.3; and (9) Violation 0f California Business and Professions Code §§ 17200, er seq. , based 0n the preceding claims, including claims for Violation 0f California Labor Code sections 201-203, 204, 210, 226, 226.3, 226.7, 227.3, 510, 51 1, 512, 558, 1174, 1174.5, 1194, 1194.2, 1197, 1198, 2800, and 2802 (“Released Claims”). Section 5.02: Released Claims bv PAGA Group Members Upon the date Defendant transfers the Gross Settlement Amount, the State 0f California and PAGA Group Members release the Released Parties from all claims exhausted in Plaintiff s notice(s) sent t0 the LWDA and alleged in the operative complaint, Which arose during the PAGA Period, regardless 0f Whether PAGA Group Members opt out of the Class Settlement, including claims for Violation of California Labor Code sections 201-203, 204, 210, 226, 226.3, 226.7, 227.3, 510, 51 1, 512, 558, 1174, 1174.5, 1194, 1194.2, 1197, 1198, 2800, and 2802. 21 of27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Section 5.03: Named Plaintiffs’ Release 0f Unknown Claims Upon the date Defendant transfers the Gross Settlement Amount, Named Plaintiffs, waive, release, acquit, and forever discharge the Released Parties from any and all claims, actions, charges, complaints, grievances, and causes 0f action, 0f any nature arising from Named Plaintiffs’ employment With Defendant, Whether known 0r unknown, Which exist 0r may exist as 0f the Parties’ execution of this Agreement. Section 1542 of the California Civil Code provides as follows: “A general release does not extend t0 claims that the creditor 0r releasing party does not know 0r suspect t0 exist in his 0r herfavor at the time 0f executing the release and that, if known by him 0r her, would have materially affected his 0r her settlement with the debtor 0r released party. ” Named Plaintiff’ s general release provided herein is made With an express waiver and relinquishment 0f any claim, right, 0r benefit under California Civil Code § 1542. ARTICLE VI MISCELLANEOUS PROVISIONS Section 6.01: Amendments or Modification The terms and provisions 0f this Agreement may be amended 0r modified only by an express written agreement that is signed by all the Parties (or their successors-in-interest) and their counsel. Section 6.02: Assignment None of the rights, commitments, 0r obligations recognized under this Agreement may be assigned by any Party, Class Member, Class Counsel, 0r Defense Counsel Without the express written consent of each other Party and their respective counsel. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit 0f the Parties under this Agreement and shall not be construed t0 confer any right or t0 avail any remedy t0 any other person. Section 6.03: Governing Law This Agreement shall be governed, construed, and interpreted, and the rights 0f the Parties shall be determined, in accordance With the laws ofthe State 0f California, without regard t0 conflicts 22 of 27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 0f laws. Section 6.04: Entire Agreement This Agreement, including the Exhibits referred to herein, which form an integral part hereof, contains the entire understanding of the Parties with respect to the subject matter contained herein. In case of any conflict between text contained in Articles I through VI 0f this Agreement and text contained in the Exhibits to this Agreement, the former (126., Articles I through VI) shall be controlling, unless the Exhibits are changed by 0r in response t0 a Court order. There are no restrictions, promises, representations, warranties, covenants, 0r undertakings governing the subject matter of this Agreement other than those expressly set forth or referred to herein. This Agreement supersedes all prior agreements and understandings among the Parties With respect t0 the settlement 0f the Action, including correspondence between Class Counsel and Defense Counsel and drafts 0f prior agreements or proposals. Section 6.05: Waiver of Compliance Any failure 0f any Party, Defense Counsel, 0r Class Counsel hereto t0 comply With any obligation, covenant, agreement, or condition set forth in this Agreement may be expressly waived in writing, to the extent permitted under applicable law, by the Party 01‘ Parties and their respective counsel entitled t0 the benefit of such obligation, covenant, agreement, or condition. A waiver or failure t0 insist upon strict compliance with any representation, warranty, covenant, agreement, or condition shall not operate as a waiver of, or estoppel With respect to, any subsequent 0r other failure. Section 6.06: Counterparts and Fax/PDF Signatures This Agreement, and any amendments hereto, may be executed in any number ofcounterparts and any Party and/or their respective counsel may execute any such counterpart, each ofWhich When executed and delivered shall be deemed to be an original. A11 counterparts taken together shall constitute one instrument. A fax or PDF signature 0n this Agreement shall be as valid as an original signature. Section 6.07: Meet and Confer Regarding Disputes Should any dispute arise among the Parties 01‘ their respective counsel regarding the implementation 0r interpretation 0f this Agreement, a representative 0f Class Counsel and a 23 of 27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 representative 0f Defense Counsel shall meet and confer in an attempt t0 resolve such disputes prior to submitting such disputes t0 the Court. Section 6.08: Agreement Binding on Successors This Agreement will be binding upon, and inure to the benefit 0f, the successors in interest 0f each 0f the Parties. Section 6.09: Cooperation in Drafting The Parties have cooperated in the negotiation and preparation 0f this Agreement. This Agreement Will not be construed against any Party 0n the basis that the Party, 0r the Party’s counsel, was the drafter or participated in the drafting 0f this Agreement. Section 6.10: Fair and Reasonable Settlement The Parties believe that this Agreement reflects a fair, reasonable, and adequate settlement 0f the Action and have arrived at this Agreement through arm’s-length negotiation and in the context of adversarial litigation, taking into account all relevant factors, current and potential. The Parties further believe that the Settlement is and is consistent With public policy, and fully complies With applicable law. Section 6.11: Headings The descriptive heading 0f any section or paragraph of this Agreement is inserted for convenience 0f reference only and does not constitute a part 0f this Agreement and shall not be considered in interpreting this Agreement. Section 6.12: NLice Except as otherwise expressly provided in the Agreement, all notices, demands, and other communications under this Agreement must be in writing and addressed as follows: T0 Named Plaintiffiv and the Class: Kashif Haque Samuel A. Wong Jessica L. Campbell Fawn F. Bekam AEGIS LAW FIRM, PC 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 24 0f 27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 And T0 Defendant: David L. Cheng Paul M. Suh FORD & HARRISON LLP 350 South Grand Avenue, Suite 2300 Los Angeles, CA 90071 Telephone: 213-237-2400 Facsimile: 213-237-2401 Section 6.13: Enforcement 0f Settlement and Continuing Court Jurisdiction T0 the extent consistent With class action procedure, this Agreement shall be enforceable by the Court pursuant to California Code of Civil Procedure section 664.6 and California Rule 0f Court 3.769(h). The Final Order entered by the Court Will not adjudicate the merits 0f the Action 0r the liability of the Parties resulting from the allegations 0f the Action. Its sole purpose is to adopt the terms of the Settlement and t0 retain jurisdiction over its enforcement. T0 that end, the Court shall retain continuing jurisdiction over this Action and over all Parties and Class Members, t0 the fullest extent to enforce and effectuate the terms and intent of this Agreement. In the event that one or more 0f the Parties institutes any legal action 0r other proceeding against any other Party 0r Parties t0 enforce the provisions of this Settlement, the successful Party or Parties Will be entitled t0 recover from the unsuccessful Party or Parties reasonable attorneys’ fees and costs, including expert witness fees incurred in connection With any enforcement actions. Section 6.14: Mutual Full Cooperation The Parties agree fully to cooperate With each other to accomplish the terms of this Agreement, including but not limited to the execution 0f such documents, and the taking 0f such other action, as may reasonably be necessary t0 implement the terms 0f this Agreement. The Parties t0 this Agreement shall use their best efforts, t0 effectuate and implement this Agreement and its terms. In the event the Parties are unable t0 reach agreement on the form 01‘ content 0f any document needed t0 implement the Settlement, 0r 0n any supplemental provisions that may become necessary t0 effectuate the terms of the Settlement, the Parties agree t0 seek the assistance of the Court. 25 of 27 DocuSign Envelope ID: EEF7EBE1 -3391 -40A5-A286-D6251 FD521 25 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Section 6.15: Authorization t0 Act Class Counsel warrants and represents that they are authorized by Named Plaintiffs, and Defense Counsel warrants that they are authorized by Defendant, to take all appropriate action required to effectuate the terms 0f this Agreement, except for signing documents, including but not limited t0 this Agreement, that are required t0 be signed by the Parties themselves. Defendant represents and warrants that the individual executing this Agreement on its behalf has the full right, power, and authority t0 enter into this Agreement and t0 carry out the transactions contemplated herein. Section 6.16: No Reliance 0n Representations The Parties have made such investigation 0f the facts and the law pertaining t0 the matters described herein and t0 this Agreement as they deem necessary, and have not relied, and d0 not rely, 0n any statement, promise, or representation of fact or law, made by any of the other parties, or any of their agents, employees, attorneys, 0r representatives, With regard t0 any of their rights or asserted rights, 0r with regard t0 the advisability 0fentering into and executing this Agreement, 0r With respect t0 any other matters. N0 representations, warranties, or inducements, except as expressly set forth herein, have been made t0 any party concerning this Agreement. EXECUTION BY PARTIES AND COUNSEL The Parties and their counsel hereby execute this Agreement. Dated: 10/15/2021 JAVIER DIAZ DocuSigned by: B Jmniw 0W3 V: Named P1ai§°€ff§°gscw” Dated: 10/15/2021 GEORGE MENDEZ DocuSiuned by: @‘i D L r BV:- '401_Fs‘qA9?m?ua.._- Named Plamtltt 26 0f 27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: October 28, 2021 APPROVED AS TO FORM ONLY: Dated: October 15. 2021 Dated: October 29, 2021 WSACTIVELLP: 126296441 BGIS GLOBAL INTEGRATED SOLUTIONS EiLLC/JL: (Signature) Andrew McLachlin (Printed Name) SVP & General Counsel (Title) AEGIS LAW FIRM. PCfiLM sz Samuel A. Wong Kashif Haque Jessica L. Campbell Fawn F. Bekam Attorneys for Named Plaintiffs Javier Diaz and George Mendez FORD HARRISON LLP BV: D id L. heng Paul M. S Attorneys for Defendant BGIS GLOBAL INTEGRATED SOLUTIONS US LLC 27 of 27 EXHIBIT A THIS IS AN IMPORTANT COURT APPROVED NOTICE. READ CAREFULLY. Javier Diaz, et al. v. BGIS Global Integrated Solutions US, LLC, Santa Clara County Superior Court Case No. 21CV383425 If you worked for BGIS Global Integrated Solutions US LLC in California at any time from August 17, 2016, through November 12, 2021, g settlement 0f a class act_i0n lawsuit mav affect vour rights. This is a court-authorized notice. It is n_0t a solicitationfrom a lawyer. o A proposed settlement (the “Settlement”) has been reached in a class action lawsuit entitled Javier Diaz, et al. v. BGIS US Global Integrated Solutions US, LLC, Case No. 21CV383425 (Santa Clara County Superior Court) (the “Lawsuit”). The purpose ofthis Notice 0f Class Action Settlement (“Notice”) is t0 briefly describe the Lawsuit, and t0 inform you 0f your rights and options in connection with the Lawsuit and the proposed settlement. o The Court has preliminarily approved a class action settlement with Defendant BGIS Global Integrated Solutions US LLC (“BGIS”), Which will affect all non-exempt employees Who worked for BGIS in California at any time between August 17, 2016, through November 12, 2021 (the “Class”). o If the Court grants final approval 0f the Settlement, there may be money available to you. r YOURLEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT 1 Stay in this Lawsuit. Receive a payment. Cannot pursue PARTICIPATE IN your own lawsuit. By doing nothing, you become part 0f the THE SETTLEMENT Class and will collect a settlement award as detailed below. But - NO ACTION you Will not be able to bring your own lawsuit against BGIS for REQUIRED wage and hour Violations that relate to the claims brought in this Lawsuit. Stay in this Lawsuit. Receive a payment. Object. Cannot pursue your own lawsuit. To object to the Settlement, you must write to the Settlement Administrator about why you do not like the settlement. You will remain a member of the Class, and if the Court approves the Settlement, you will be bound by the terms of the settlement in the same way as Class Members who d0 not object. Get out 0f this Lawsuit. Receive a smaller or no payment from it. Keep your right t0 pursue your own lawsuit for damages. Ifyou ask to be excluded from the Settlement, you keep your right to sue BGIS separately about the legal claims in this Lawsuit, except as to the claim under the California Private Attorneys General Act (“PAGA”). If you choose this option, you must exclude yourself, in writing, from the Settlement. As a result, you may receive only a very small payment for resolution of the PAGA claim . OBJECT TO THE SETTLEMENT ASK TO BE EXCLUDED o Regardless of the option you choose, you will not be retaliated against for exercising your rights. To obj ect to the Settlement 0r t0 ask to be excluded, you must act before [DATE]. o Any questions? Read on or contact the Settlement Administrator listed below at l-XXX-XXX- XXXX. BASIC INFORMATION '1. Why did 1 get this notice? - BGIS’ records show that you worked for BGIS in California at some point between August 17, 2016 and November 12, 2021. The Court has determined onlv that there is sufficient evidence t0 suggest that the proposed settlement might be fair, adequate. and reasonable. Any final determination 0f those issues will be made at the final hearing. You have legal rights and options that you may exercise as part 0f this settlement. Judge Sunil R. Kulkarni of the Superior Court 0f the State of California, County of Santa Clara, is overseeing this lawsuit. b 2. What is this lawsuit about? C In this Lawsuit, Plaintiffs Javier Diaz and George Mendez (“Plaintiffs”) claim that BGIS: (1) failed t0 pay minimum wages; (2) failed to pay overtime wages; (3) failed to provide meal periods; (4) failed to authorize or permit rest periods; (5) failed t0 pay wages upon separation 0f employment and within the required time; (6) failed to furnish accurate itemized wage statements; (7) failed to reimburse necessary business expenses; (8) failed t0 pay vacation wages; and (9) Plaintiffs argued that these claimed Violations were unfair and unlawful business practices under California’s Unfair Competition Laws, and that they entitled Plaintiffs to recover civil penalties to be split 75% to the State of California and 25% t0 certain employees. Plaintiffs also claimed entitlement t0 restitution, interest, attorneys’ fees, and costs. You can read Plaintiffs’ allegations as stated in the First Amended Complaint, which is available at [settlement administrator website]. Throughout the litigation, BGIS has denied-and continues t0 deny-the factual and legal allegations in the case. BGIS does not believe that it violated any law or regulation relating to how it paid employees, when it paid employees, how much it paid employees, 0r how wage statements displayed information. BGIS denies any wrongdoing and asserts that its conduct at all times complied with the law. BGIS further denies that it owes the monies claimed in the Lawsuit. However, BGIS has voluntarily agreed t0 the terms of a negotiated settlement in order to avoid the burden and expense of continued litigation. i 3. What is a class action and who is involved? g In a class action lawsuit such as this, a person called the “Class Representative” sues on behalf 0f other people Who may have similar claims. The people together are a "Class" 0r "Class Members." The person who is the Class Representative is also called the plaintiff. The companies sued are called the defendant. In class action litigation, one Court resolves the issues for everyone in the Class in one lawsuit, excegt for those people Who choose to exclude themselves from the Class. This class action also includes a “Private Attorney General” (PAGA) claim where the Plaintiffs are attempting t0 recover penalties for the State of California. In a PAGA action, the State receives 75% of the civil penalties, While employees receive 25%. This settlement will resolve all claims by the State for civil penalties arising from claims made by Plaintiffs or their counsel in the Lawsuit during the period of August 17, 2016 to November 12, 2021, and employees covered by the Lawsuit Will be barred from bringing another lawsuit 0n behalf of the State for such penalties. ‘ :4. Why is this Lawsuit a class action? i For settlement purposes only, Plaintiffs and BGIS agreed that this case can proceed as a class action and t0 ask the Court to approve the settlement for the Class. The Court has not ruled on the merits of the case, and the decision t0 certify Class for settlement purposes should not be Viewed as a prediction 0r agreement that Plaintiffs 0r the Class would ultimately prevail on the merits of the action. l 5. What are the terms of the proposed Settlement? g Subj ect to final Court approval, the major terms of the Settlement are as follows: 1. BGIS has agreed t0 pay $1,275,000.00 to settle the claims made in this lawsuit. This amount is also known as the “Maximum Settlement Amount”. 2. Plaintiffs have agreed t0 release all of their claims in this lawsuit against BGIS. 3. Class Settlement Pavments: Plaintiffs seek the following deductions from the $1,275,000.00 Maximum Settlement Amount: a. Up to one-third (1/3) of the Maximum Settlement Amount (currently equal to $425,000.00) for Class Counsel’s attorneys’ fees. b. Up t0 $20,000.00 for reimbursement of Class Counsel’s litigation costs. c. An incentive award of up t0 $10,000.00 ($20,000 total for both Named Plaintiffs) to Plaintiffs for filing the Lawsuit, performing work in connection With the Lawsuit, and undertaking the risks of filing the Lawsuit. d. Up to $4,500.00 to cover the costs of the Settlement Administrator. e. Payment 0f $37,500.00 to the California Labor and Workforce Development Agency for release 0fPAGA claims. If the Court approves the requested deductions, there will be approximately $768,000.00 remaining, before deducting for taxes, to be distributed t0 Settlement Class Members. The remaining funds will be referred t0 as the “Net Settlement Amount.” Any amounts not requested 0r awarded by the Court will be included in the Net Settlement Amount. The Net Settlement Amount will be distributed t0 Class Members who d0 not request exclusion (the “Settlement Class Members”) 0n a pro rata basis according to the number ofweeks they worked during the Class Period. However, for purposes of calculating each Settlement Class Member’s individual settlement payment, a Settlement Class Member who is also a -3- member of the AWS Subclass shall have their work weeks weighted with a 2/3 weighted ratio factor, while a Settlement Class Member is who is not a member 0f the AWS Subclass shall have their work weeks weighted with a 1/3 weighted ratio factor. In other words, individual settlement payments for Settlement Class Members who are also members 0ftheAWS Subclass will be higher than the individual settlement payments for Settlement Class Members who are not members of the AWS Subclass because Plaintiff alleged the AWS Subclass had greater potential damages. PAGA Settlement Pavments. A portion 0f the Maximum Settlement Amount in the amount 0f $12,500 Will be set aside for Class Members who worked for BGIS in California at some point between August 17, 2016 and November 12, 2021 (“PAGA Group”). Ifyou are a member of the PAGA Group, you will receive a pro rata share 0f the PAGA Group Payment, regardless of whether you opt-out of the settlement. You will not be able to pursue any claim 0n behalf of the State for such penalties. Settlement Pavments Generallv. If a settlement check remains uncashed after 180 days from issuance, the check will become void and a stop payment will be placed on the uncashed check and the amount will be held with the Controller 0f the State 0f California t0 be held under the Unclaimed Property Law. Your estimated settlement payment is listed in Section 8 0fthis Notice. Applicable taxes will be withheld from your payment. WHO Is 1N THE CLASS? '76 Am I part ofthis Class? 7 fl ‘ The “Class” includes: A11 current and former non-exempt employees Who are or were employed by BGIS in California at any time at any time between April 17, 2016, through November 12, 2021 (the “Class Period”). The “AWS Subclass” includes: A11 current and former non-exempt employees Who are 0r were employed by BGIS in California at any time during the Class Period and worked a 4 days, 10-hours 0r a 3 days, 12-hours alternative workweek schedule, except for those non-exempt employees Who worked a 3 days, 12-hours alternative workweek schedule and who were paid daily overtime for all hours over eight (8) in a day. . 7w I’m still not sure if I am included. ‘ Ifyou still are not sure whether you are included in the Class, you can get free help by contacting Phoenix Settlement Administrators, the “Settlement Administrator”, at the designated phone number for this matter at (800) 779-2104 or by calling or writing the lawyers representing the Class in this case ("Class Counsel"), at the phone number 0r address listed in Section 19. E 8. What is my approximate Individual Settlement Payment?- j According to payroll records maintained by BGIS, the total number ofweeks you worked in California for BGIS during the Class Period is . You [are/are not] a member 0f the AWS Subclass. _ 4 _ Based on information provided above and anticipated court-approved deductions, your share of the settlement is estimated t0 be $ , less applicable taxes and Withholdings. You do not need to do anything further to receive your Individual Settlement Payment, other than to ensure that the Settlement Administrator has an accurate mailing address for you. It is important that you contact and inform the Settlement Administrator listed in Section 16, below, 0f any changes t0 your mailing address for timely payment. Disputing Your Pavment Amount If you believe your total weeks worked during the Class Period shown above are not correct, you may send a letter to the Settlement Administrator indicating what you believe is correct by n0 later than [DATE]. You should also send any documents or other information that supports your belief. The Settlement Administrator will attempt to resolve any dispute based on BGIS’ records and any information you provide. Any disputes not resolved by the Settlement Administrator Will be resolved by the Court. s 9. What rights am I releasing if I participate in the Settlement? C If the Court grants final approval 0f the Settlement and you do not opt out of the Settlement, you will be deemed to have released BGIS, its predecessors, successors, parents, subsidiaries, affiliates and/or related entities and each of their respective directors, members, officers, committee members, supervisors, employees, representatives and agents. (“Releasees”) from any and all claims alleged 0r which could have been in alleged based 0n facts pleaded in Named Plaintiffs’ operative complaints, including but not limited t0 the: (1) failure to pay minimum wages; (2) failure t0 pay overtime wages; (3) failure t0 provide meal periods; (4) failure t0 authorize or permit rest periods; (5) failure to pay wages upon separation of employment and Within the required time; (6) failure to furnish accurate itemized wage statements wage statement Violations; (7) failure t0 reimburse necessary business expenses; (8) failure t0 pay vacation wages in Violation 0f Cal. Lab. Code 227.3; and (9) Violation of California Business and Professions Code §§17200, et seq., based on the preceding claims, including claims for Violation of California Labor Code sections 201-203, 204, 210, 226, 226.3, 226.7, 227.3, 510, 5 1 1, 512, 558, 1174, 1174.5, 1194, 1194.2, 1197, 1198, 2800, and 2802, from August 16, 2016 through November 12, 2021 “Settlement Class Released Claims”. A11 Settlement Class Members shall be bound by the Settlement Class Released Claims, unless they formally opt out. Additionally, ifyou worked during the period of August 17, 2016 through November 12, 2021, you are a PAGA Group Member and you will also release the right to bring a claim for civil penalties on behalf of the State (and other employees) based 0n the same facts or theories as the Settlement Class Released Claims, which arose during the PAGA Period, even ifyou have formally opted-out ofbeing a Settlement Class Member, including claims for Violation of California Labor Code sections 201-203, 204, 210, 226, 226.3, 226.7, 227.3, 5 10, 5 1 1, 512, 558, 1174, 1174.5, 1194, 1194.2, 1197, 1198, 2800, and 2802. E 10. How do I object to the Settlement? l If you are a Class Member and would like to obj ect t0 the Settlement, you must n_0t submit a request for exclusion (116., must not opt out). In order to obj ect, you may mail a written obj ection t0 the Settlement Administrator at the address in Section 16 below. To be valid, your obj ection must: (1) state your full name, address, and telephone number and the last four digits of your Social Security -5- Number; (2) state the grounds for the objection; (3) be signed by you; and (4) indicate whether you intend to appear at the Final Approval Hearing. You can also hire an attorney at your own expense to represent you in your obj ection. Your written obj ection to the Settlement Administrator must be postmarked 0n 0r before [DATE]. You may appear in person at the Final Fairness and Approval Hearing to present any oral obj ections even if you do not submit a timely written obj ection. L 11. Why would I ask to be excluded? g You have the right to exclude yourself from the Class (and the class settlement). Ifyou exclude yourself from the Class-sometimes called "opting-out" 0f the Class - you won't get any money 0r benefits from the class settlement. However, you may then be able to sue or continue to sue BGIS for your own claims if permitted by law. Ifyou exclude yourself, you will not be legally bound by the Court's ruling in this Lawsuit, except for the release by PAGA Group Members, as explained above. Whether 0r not you submit a Request for Exclusion, you will still receive a small PAGA Group Payment if you are determined to be a part of the PAGA Group. 5 12. How do I ask to be excluded from the Class? - If you are a Class Member and would like t0 exclude yourself from the Class (“opt-out”), you, 0r your authorized representative, need t0 submit a written statement requesting exclusion from the Class to the Settlement Administrator at the address in Section 16 below. The statement must be signed by you 0r your authorized representative and must be postmarked on 0r before [DATE]. T0 be valid, your request for exclusion must: (1) state your full name, address, and telephone number and the last four digits 0f your Social Security Number; (2) contain a clear statement that you are requesting to opt out of, or be excluded from, the Settlement in Diaz v. BGIS Global Integrated Solutions US LLC; and (3) be signed by you. Any Class Member Who requests to be excluded from the Class will not be entitled t0 any recovery under the Settlement and will not be bound by the Settlement or have any right to object, appeal, or comment on the Settlement. Class Members Who fail to submit a valid and timely request for exclusion will be bound by all terms of the Settlement and any ruling from the Court to give final approval 0f the Settlement. But Class Members cannot opt out 0f releasing PAGA claims, as those claims belong to the State of California and Plaintiffs have agreed to release those claims by acting as a proxy for the State. THE LAWYERS REPRESENTING YOU r13. Mo are the attorneys representing the Parties? La ers for the Class BGIS’ Lawyers Samuel A. Wong (swong@aegislawfirm.com) David L. Cheng (dcheng@fordharrison.com) Kashif Haque (khaque@aegislawfirm.com) Paul M. Suh (psuh@f0rdharrison.com) Jessica L. Campbell (jcampbell@aegislawfirm.com) FORD & HARRISON LLP Fawn F. Bekam (fbekam@aegislawfirm.com) 350 South Grand Avenue, Suite 2300 AEGIS LAW FIRM, PC Los Angeles, CA 90071 9811 Irvine Center Drive, Suite 100 Tel: 213-237-2400 Irvine, CA 9261 8 Tel: 949-379-6250 The Court has preliminarily decided that Aegis Law Firm, PC is qualified to represent you and all Class Members. The law firm’s attorneys are experienced in handling similar cases against other employers. More information about this law firm, their practice, and their lawyers' experience is available at www.aegislawfirm.com. b 14. How Will the lawyers be paid? a As part of the Settlement With BGIS, Class Counsel has requested one-third 0f the Maximum Settlement Amount (currently equal to $425,000.00) in attorneys' fees, plus costs not to exceed $20,000, to be paid from the Maximum Settlement Amount to compensate Class Counsel for their work 0n this matter. You will not have to pay Class Counsel’s fees and costs from your Individual Settlement Payment. E 15. How will Plaintiffs be paid? l As part of the Settlement with BGIS, Class Counsel has requested an enhancement payment 0f up to $10,000.00 each ($20,000 total for both Named Plaintiffs) t0 be paid t0 Plaintiffs for their efforts in this matter during initial investigation, discovery, mediation and the like, While serving as Class Representatives and taking on the burden and risks of litigation. THE SETTLEMENT, APPROVAL, AND PAYMENT PROCESS 'ifi. Who is handling the Settlement Administration process? Phoenix Settlement Administrators [Address & Phone Number] h 17. When is the Final Fairness and Approval Hearing and do I have to attend? _ The Final Fairness and Approval Hearing has been set for [DATE], at [TIME] in Department 1 0f the Santa Clara County Superior Court for the State of California, located at 191 N. First Street, San Jose, CA 921 13. You d0 not need t0 attend the hearing to be a part of the Settlement. However, if you wish t0 obj ect t0 the Settlement, you may appear at the hearing. Please note that the hearing may be continued without further notice to the Class. Make sure you check the Court’s website before attempting to come t0 Court in person. You may be required t0 appear only by phone or Video, depending 0n the current safety requirements due t0 the pandemic. E 18. When will I get money after the hearing? j The Court will hold a hearing 0n [DATE], t0 decide whether t0 approve the settlement. If the Court approves the settlement, then there may be appeals if anyone obj ects. It is always uncertain when these objections and appeals can be resolved, and resolving them can take time. If the Court approves the settlement and ifyou do not opt out, your individual payment set forth in Section 8 above is expected to be distributed after BGIS makes payment t0 the Settlement Administrator. If there are n0 objections 0r appeals, BGIS will transfer the settlement funds Within 30 calendar days of approval, and the Administrator Will then distribute the funds. If there are objections 0r appeals, the payment can be delayed by at least 60 days, or even over a year. T0 check on the progress of the settlement, contact the Settlement Administrator or Class Counsel at the phone number or address listed in Section 19. -7- GETTING MORE INFORMATION E79. Are more details available? u For more information, the pleadings and other records in this litigation, including copies 0f the Settlement Agreement, may be examined at any time during regular business hours at the office 0f the Clerk of the Superior Court of the State 0f California for Santa Clara County, at the Santa Clara County Superior Court, located at 191 N. First Street, San Jose, CA 921 13. You can also View the case records online at the court’s website: https://porta1.scscourt.org/search. Insert the Case Number 21CV383425 under “Case Number Search.” Then click “search” t0 view the case record. Any questions regarding this Class Notice 0r the Lawsuit may be directed to the Claims Administrator at the below address and telephone number. Alternatively, you may contact your own attorney, at your own expense, to advise you, or you may contact the Lawyers for the Class at the address, telephone number or email address set forth above. If your address changes, 0r is different from the address 0n the envelope enclosing this Notice, please promptly notify the Settlement Administrator. Settlement Administrator: Phoenix Settlement Administrators [Address and Phone Number] PLEASE DO NOT CALL OR WRITE TO THE COURT, OR TO ANY OF DEFENDANT’S MANAGERS, SUPERVISORS, OR DEFENDANT’S ATTORNEYS WITH QUESTIONS. ABOUT THIS NOTICE EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV383425 Santa Clara - Civil AEGIS LAW Hm, PC Electronically Filed KASHIF HAQUE, State Bar No. 218672 by Superior Court of CA, SAMUEL A. WONG, State Bar No. 217104 County of Santa Clara, JESSICA L. CAMPBELL, State Bar No. 280626 on 9/30/2021 2:02 PM FAWN F. BEKAM, State Bar No. 3073 12 Reviewed By: R- Walker fbekam@aegislawfirm.com Case #21 CV333425 9811 Irvine Center Drive, Suite 100 EnvelOPe: 7374953 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Attorneys for Plaintiff Javier Diaz and George Mendez, individually, and on behalf 0f all others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA JAVIER DIAZ and GEORGE MENDEZ, Case No. 2 1 CV383425 individually and 0n behalf 0f all others similarly situated, FIRST AMENDED CLASS ACTION COMPLAINT FOR: Plaintiff, 1. Failure to Pay Minimum Wages; vs. 2. Failure to Pay Overtime Wages; BGIS GLOBAL INTEGRATED SOLUTIONS Us, LLC; and DOES 1 3. Failure to Provide Meal Periods; th h 20 ' l ' mug a me uswe’ 4. Failure to Permit Rest Breaks; Defendants. . . o 5. Fallure to Prov1de Accurate Itemlzed Wage Statements; 6. Failure to Pay A11 Wages Due Upon Separation of Employment; 7. Failure to Reimburse Necessary Business Expenses; and 8. Violation of Business and Professions Code §§ 17200, et seq.; and 9. Enforcement of Labor Code §§ 2698, et seq. (“PAGA”) DEMAND FOR JURY TRIAL FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs Javier Diaz and George Mendez, individually, and 0n behalf 0f others similarly situated, alleges as follows: NATURE OF ACTION AND INTRODUCTORY STATEMENT 1. Plaintiffs Javier Diaz and George Mendez (“Plaintiffs”) bring this putative class and representative action against defendants BGIS Global Integrated Solutions US, LLC, and DOES 1 through 20, inclusive (collectively, “Defendants”), 0n behalf of themselves individually, other aggrieved employees, and a putative class 0f California citizens Who are and were employed by Defendants as non-exempt employees throughout California. 2. Defendants are in the business 0f operating and providing a global Data Center and IT Infrastructure Management software. 3. Through this action, Plaintiffs allege that Defendants have engaged in a systematic pattern 0f wage and hour Violations under the California Labor Code and Industrial Welfare Commission (“IWC”) Wage Orders, all of Which contribute to Defendants’ deliberate unfair competition. 4. Plaintiffs are informed and believe, and thereon allege, that Defendants have increased their profits by Violating state wage and hour laws by, among other things: (a) Failing t0 pay overtime wages at the proper rates; (b) Failing to pay all wages (including minimum wages and overtime wages); (c) Failing to provide lawful meal periods 0r compensation in lieu thereof; (d) Failing to authorize or permit lawful rest breaks or provide compensation in lieu thereof; (e) Failing to provide accurate itemized wage statements; (f) Failing t0 pay all wages due upon separation 0f employment; and (g) Failing to reimburse all business expenses incurred by the employee in direct consequence of the discharge of his 0r her duties. 5. Plaintiffs seek monetary relief against Defendants 0n behalf 0f themselves and all others similarly situated in California to recover, among other things, unpaid wages and -1- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 benefits, interest, attorneys” fees, costs and expenses, and penalties pursuant t0 Labor Code §§ 201, 202, 203, 204, 210, 226, 226.3, 226.7, 227.3, 510, 511, 512, 558, 1174, 1174.5, 1182.12, 1194, 1194.2, 1197, 1197.1, 1198, 2698, et seq., 2800, 2802, and Code 0f California Civil Procedure § 1021.5. JURISDICTION AND VENUE 6. This is a class action pursuant t0 California Code 0f Civil Procedure § 382. The monetary damages and restitution sought by Plaintiffs exceeds the minimal jurisdictional limits of the Superior Court and Will be established according to proof at trial. 7. This Court has jurisdiction over this action pursuant t0 the California Constitution, Article VI, § 10, Which grants the Superior Court original jurisdiction in all causes except those given by statutes t0 other courts. The statutes under which this action is brought d0 not specify any other basis for jurisdiction. 8. This Court has jurisdiction over all Defendants because, upon information and belief, they are citizens of California, have sufficient minimum contacts in California, or otherwise intentionally avail themselves of the California market so as t0 render the exercise of jurisdiction over them by the California courts consistent With traditional notions of fair play and substantial justice. 9. Venue is proper in this Court because, upon information and belief, Defendants reside, transact business, or have offices in this county, and the acts and omissions alleged herein took place in this county. THE PARTIES 10. Plaintiffs are citizens 0f California. Plaintiffs were employed by Defendants during the Class Period in California. 11. Plaintiffs are informed and believe, and thereon allege that at all times hereinafter mentioned, Defendants were and are subject t0 the Labor Code and IWC Wage Orders as employers, Whose employees were and are engaged throughout this county and the State of California. 12. Plaintiffs are unaware of the true names or capacities 0f the defendants sued -2- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 herein under the fictitious names DOES 1 through 20, but Will seek leave of this Court to amend this Complaint and serve such fictitiously named defendants once their names and capacities become known. 13. Plaintiffs are informed and believe, and thereon allege, that DOES 1 through 20 are or were the partners, agents, owners, shareholders, managers, or employees of Defendants at all relevant times. 14. Plaintiffs are informed and believe, and thereon allege, that each defendant acted in all respects pertinent t0 this action as the agent of the other defendant, carried out a joint scheme, business plan, 0r policy in all respects pertinent hereto, and the acts of each defendant are legally attributable to the other defendant. Furthermore, defendants in all respects acted as the employer and/or joint employer 0f Plaintiffs and the class members. 15. Plaintiffs are informed and believe, and thereon allege, that each and all of the acts and omissions alleged herein were performed by, 0r are attributable t0, Defendants and/or DOES 1 through 20, acting as the agent 0r alter ego for the other, with legal authority t0 act 0n the other’s behalf. The acts of any and all Defendants were in accordance With, and represent, the official policy of Defendants. 16. At all relevant times, Defendants, and each 0f them, acted Within the scope 0f such agency 0r employment, 0r ratified each and every act 0r omission complained of herein. At all relevant times, Defendants, and each 0f them, aided and abetted the acts and omissions of each and all the other Defendants in proximately causing the damages herein alleged. 17. Plaintiffs are informed and believe, and thereon allege, that each 0f said Defendants is in some manner intentionally, negligently, or otherwise responsible for the acts, omissions, occurrences, and transactions alleged herein. CLASS ACTION ALLEGATIONS 18. Plaintiffs bring this action under Code of Civil Procedure § 382 on behalf 0f himself and all others similarly situated Who were affected by Defendants’ Labor Code, Business and Professions Code §§ 17200, er. seq., and IWC Wage Order Violations. 19. A11 claims alleged herein arise under California law for which Plaintiffs seek -3- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 relief authorized by California law. 20. Plaintiffs’ proposed class consists of and is defined as follows: w A11 California citizens currently 0r formerly employed by Defendants as non- exempt employees in the State 0f California at any time between August 17, 20161 and the date 0f class certification (“Class”). 21. Plaintiffs also seek t0 certify the following subclasses of employees: Waiting Time Subclass A11 Class Members Who separated their employment With Defendants at any time between August 17, 2017 and the date 0f class certification (“Waiting Time Subclass”). AWS Subclass A11 Class Members who worked an alternative workweek schedule, except for those who were paid daily overtime for all hours over eight (8) in a day (“AWS Subclass”). 22. Plaintiffs reserve the right to establish other 0r additional subclasses, or modify 0r re-define the Class, or any class or subclass definition as appropriate based on investigation, discovery, and specific theories of liability. 23. Members 0f the Class and the Subclasses described above Will be collectively referred t0 as “Class Members.” 24. There are common questions of law and fact as to the Class Members that predominate over any questions affecting only individual members including, but not limited to, the following: (a) Whether Defendants paid Plaintiffs and Class Members overtime compensation at the proper rates; 1 The statute of limitations for this matter was tolled between April 6, 2020 and October 1, 2020 pursuant to Cal. Rules 0f Court, Appendix I, Emergency Rule N0. 9. -4- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (b) (C) (d) (e) (f) (g) (h) (i) (j) (k) Whether Defendants failed t0 implement a valid alternative workweek schedule and thus failed to pay Plaintiffs and Class Members proper overtime compensation 0r failed t0 pay properly under a valid alternative workweek schedule; Whether Defendants paid Plaintiffs and Class Members all wages (including minimum and overtime wages) for all hours worked by Plaintiff and Class Members; Whether Defendants required Plaintiffs and Class Members t0 work over 8 hours per day, over twelve (12) hours per day, and/or over forty (40) hours per week and failed to pay them overtime compensation at the proper rate; Whether Defendants deprived Plaintiffs and Class Members of timely meal periods 0r required Plaintiffs and Class Members t0 work through meal periods without compensation; Whether Defendants deprived Plaintiffs and Class Members of rest breaks or required Plaintiffs and Class Members to work through rest breaks without compensation; Whether Defendants failed t0 provide Plaintiffs and Class Members accurate itemized wage statements; Whether Defendants failed to timely pay Plaintiffs and the Subclass all wages due upon termination 0r Within seventy-two (72) hours of resignation; Whether Defendants required Plaintiffs and class members t0 incur expenses for work and then failed t0 adequately reimburse Plaintiffs and Class Members for such expenses; Whether Defendants failed t0 pay Plaintiffs and class members’ vacation pay at the regular rate 0f pay; Whether Defendants’ conduct was willful or reckless; and -5- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (1) Whether Defendants engaged in unfair business practices in Violation 0f Business and Professions Code §§ 17200, et seq. 25. There is a well-defined community 0f interest in this litigation and the proposed Class and Subclass are readily ascertainable: (a) Numerosity: The Class Members are so numerous that joinder of all members is impractical. Although the members 0f the entire Class and Subclasses are unknown t0 Plaintiffs at this time, 0n information and belief, the class is estimated t0 be greater than one 100 individuals. The identities of the Class Members are readily ascertainable by inspection of Defendants’ employment and payroll records. (b) Typicality: The claims (0r defenses, if any) 0f Plaintiff are typical 0f the claims (or defenses, if any) 0f the Class Members because Defendants’ failure to comply with the provisions of California’s wage and hour laws entitled each Class Member t0 similar pay, benefits, and other relief. The injuries sustained by Plaintiffs are also typical 0f the injuries sustained by the Class Members, because they arise out of and are caused by Defendants’ common course 0f conduct as alleged herein. (c) Adequacy: Plaintiffs Will fairly and adequately represent and protect the interests of all Class Members because it is in their best interest to prosecute the claims alleged herein to obtain full compensation and penalties due to them and the Class Members. Plaintiffs’ attorneys, as proposed class counsel, are competent and experienced in litigating large employment class actions and versed in the rules governing class action discovery, certification, and settlement. Plaintiffs have incurred and, throughout the duration 0f this action, will continue to incur attorneys’ fees and costs that have been and Will be necessarily expended for the prosecution of this action for the substantial benefit of the Class Members. (d) Superiority: The nature 0f this action makes use 0f class action adjudication superior to other methods. A class action will achieve economies of time, effort, and expense as compared With separate lawsuits and will avoid inconsistent outcomes because the same issues can be adjudicated in the same manner for the entire Class and Subclasses at the same time. If appropriate, this Court can, and is empowered t0, fashion methods to -6- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 efficiently manage this case as a class action. (e) Public Policy Considerations: Employers in the State of California Violate employment and labor laws every day. Current employees are often afraid t0 assert their rights out 0f fear of direct 0r indirect retaliation. Former employees are fearful 0f bringing actions because they believe their former employers might damage their future endeavors through negative references and/or other means. Class actions provide class members who are not named in the complaint With a type of anonymity that allows for the Vindication 0f their rights while affording them privacy protections. GENERAL ALLEGATIONS 26. At all relevant times mentioned herein, Defendants employed Plaintiffs and other California residents as non-exempt employees at Defendants’ California business locati0n(s). 27. Defendants continue t0 employ non-exempt employees Within California. 28. Plaintiffs are informed and believe, and thereon allege, that at all times herein mentioned, Defendants were advised by skilled lawyers, employees, and other professionals Who were knowledgeable about California’s wage and hour laws, employment and personnel practices, and the requirements 0f California law. 29. Plaintiffs are informed and believe, and thereon allege, that Defendants knew or should have known that Plaintiffs and Class Members were entitled t0 receive wages for all time worked (including minimum and overtime wages) and that they were not receiving all wages earned for work that was required t0 be performed due t0 rounding practices, on-call time paid at less than minimum wage, and other practices. In Violation 0f the Labor Code and IWC Wage Orders, Plaintiffs and Class Members were not paid all wages (including minimum and overtime wages) for all hours worked at the proper rates 0f pay. 30. Plaintiffs are informed and believe, and thereon allege, that Defendants knew or should have known that Plaintiffs and Class Members were entitled t0 receive overtime wages and that they were not receiving all wages earned for work under Defendants’ Alternative Workweek Schedule. Plaintiffs believe Defendant either failed to implement a proper -7- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alternative workweek 0r failed to properly pay overtime under a valid Alternative Workweek Schedule and thus owe Plaintiffs and Class Members unpaid overtime. 31. Plaintiffs are informed and believe, and thereon allege, that Defendants knew 0r should have known that Plaintiffs and Class Members were entitled t0 receive all required meal periods 0r payment of one (1) additional hour of pay at Plaintiffs’ and Class Members’ regular rate 0f pay when they did not receive a timely, uninterrupted meal period. In Violation 0f the Labor Code and IWC Wage Orders, Plaintiff and Class Members did not receive all meal periods 0r payment of one (1) additional hour of pay at Plaintiffs’ and Class Members’ regular rate ofpay when they did not receive a timely, uninterrupted meal period. 32. Plaintiffs are informed and believe, and thereon allege, that Defendants knew 0r should have known that Plaintiffs and Class Members were entitled t0 receive all rest breaks or payment 0f one (1) additional hour 0f pay at Plaintiffs’ and Class Members” regular rate 0f pay When a rest break was missed. In Violation 0f the Labor Code and IWC Wage Orders, Plaintiffs and Class Members did not receive all rest breaks or payment 0f one (1) additional hour 0f pay at Plaintiffs’ and Class Members’ regular rate 0fpay When a rest break was missed. 33. Plaintiffs are informed and believe, and thereon allege, that Defendants knew or should have known that Plaintiffs and class members were entitled t0 reimbursement for necessary expenditures incurred in connection With the performance and execution of their job duties. In Violation of the California Labor Code, Plaintiffs and class members did not receive adequate reimbursement for necessary business expenses, including, but not limited to, reimbursement for cell phone and home intemet use. 34. Plaintiffs are informed and believe, and thereon allege, that Defendants knew or should have known that the Class Members were entitled t0 receive itemized wage statements that accurately showed the gross and net wages earned, total hours worked, all applicable hourly rates in effect, and the number 0f hours worked at each hourly rate in accordance With California law. In Violation of the Labor Code, the Class Members were not provided with accurate itemized wage statements. 35. Plaintiffs are informed and believe, and thereon allege, that Defendants knew or -8- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 should have known that the Waiting Time Subclass members were entitled t0 timely payment of wages due upon separation of employment. In Violation of the Labor Code, the Waiting Time Subclass did not receive payment 0f all wages within permissible time periods, including but not limited t0 vacation pay at the regular rate. 36. Plaintiffs are informed and believe, and thereon allege, that Defendants knew or should have known they had a duty t0 compensate Plaintiffs and Class Members, and Defendants had the financial ability t0 pay such compensation but willfully, knowingly, and intentionally failed to do so in order to increase Defendants’ profits. 37. Therefore, Plaintiffs bring this lawsuit seeking monetary and injunctive relief against Defendants 0n behalf 0f himself and all Class Members t0 recover, among other things, unpaid wages (including minimum and overtime wages), meal period premium payments, rest period premium payments, interest, attorneys” fees, penalties, costs, and expenses. FIRST CAUSE OF ACTION FAILURE TO PAY MINIMUM WAGES (Violation 0f Labor Code §§ 1182.12, 1194, 1194.2, 1197; Violation 0fIWC Wage Order §§3-4) 38. Plaintiffs hereby re-allege and incorporates by reference all paragraphs above as though fully set forth herein. 39. Labor Code §§ 1194 and 1197 provide that the minimum wage for employees fixed by the IWC is the minimum wage to be paid t0 employees, and the payment of a lesser wage than the minimum so fixed is unlawful. 40. During the relevant time period, Defendants paid Plaintiffs and Class Members less than the minimum wage when they failed to pay proper compensation for all hours worked. To the extent these hours d0 not qualify for the payment of overtime, Plaintiffs and Class Members were not being paid at least the minimum wage for their work. 41. During the relevant time period, Defendants regularly failed t0 pay at least the minimum wage t0 Plaintiffs and Class Members for all hours worked pursuant t0 Labor Code §§ 1194 and 1197, as alleged herein. 42. Defendants’ failure to pay Plaintiffs and Class Members the required minimum -9- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 wage violates Labor Code §§ 1194 and 1197. Pursuant t0 these sections, Plaintiffs and Class Members are entitled to recover the unpaid balance 0f their minimum wage compensation as well as interest, costs, and attorneys’ fees. 43. Pursuant t0 Labor Code § 1194.2, Plaintiffs and Class Members are entitled t0 recover liquidated damages in an amount equal to the wages unlawfully unpaid and the accrued interest thereon. SECOND CAUSE OF ACTION FAILURE TO PAY OVERTIME WAGES (Violation 0f Labor Code §§ 510, 51 1, 1194, and 1198; Violation 0fIWC Wage Order § 3) 44. Plaintiffs hereby re-allege and incorporate by reference all paragraphs above as though fully set forth herein. 45. Labor Code § 1198 and the applicable IWC Wage Order provide that it is unlawful t0 employ persons Without compensating them at a rate 0f pay either one and one-half (11/2) or two (2) times the person’s regular rate of pay, depending 0n the number of hours worked by the person 0n a daily or weekly basis. 46. Specifically, the applicable IWC Wage Orders provide that Defendants are and were required t0 pay overtime compensation t0 Plaintiffs and Class Members at the rate 0f one and one-half times (11/2) their regular rate of pay When working and for all hours worked in excess of eight (8) hours in a day or more than forty (40) hours in a workweek and for the first eight (8) hours 0fwork 0n the seventh day of work in a workweek. 47. The applicable IWC Wage Orders further provide that Defendants are and were required to pay overtime compensation t0 Plaintiffs and Class Members at a rate of two times their regular rate of pay When working and for all hours worked in excess 0f twelve (12) hours in a day 0r in excess of eight (8) hours on the seventh day 0fwork in a workweek. 48. California Labor Code § 5 10 codifies the right to overtime compensation at one and one-half (1 1/2) times the regular hourly rate for hours worked in excess of eight (8) hours in a day 0r forty (40) hours in a week and for the first eight (8) hours worked 0n the seventh consecutive day of work, and overtime compensation at twice the regular hourly rate for hours -10- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 worked in excess 0f twelve (12) hours in a day or in excess of eight (8) hours in a day on the seventh day 0fwork in a workweek. 49. Labor Code § 510 and the applicable IWC Wage Orders provide that employment 0f more than six days in a workweek is only permissible if the employer pays proper overtime compensation as set forth herein. 50. Plaintiffs and Class Members were non-exempt employees entitled t0 the protections 0f California Labor Code §§ 5 10 and 1194. 51. During the relevant time period, Defendants failed to pay Plaintiffs and Class Members overtime wages for all overtime hours worked When Plaintiffs and Class Members worked in excess 0f eight (8) hours in a day and/or forty (40) hours in a week or for a seventh day of work in a workweek, 0r when Plaintiffs and Class Members worked in excess of twelve (12) hours in a day and/or in excess 0f eight (8) hours 0n the seventh day 0f work in a work week. T0 the extent these hours qualify for the payment 0f overtime, Plaintiffs and Class Members worked shifts of eight (8) hours or more without being paid proper overtime wages. 52. During the relevant time period, Defendants failed t0 pay Plaintiffs and Class Members all wages owed When Defendants failed to properly implement an alternative workweek election or failed t0 properly pay overtime wages under a valid alternative workweek election. 53. In Violation of state law, Defendants knowingly and willfully refused to perform their obligations and compensate Plaintiffs and Class Members for all wages earned and all hours worked, as alleged herein. 54. Defendants’ failure to pay Plaintiffs and Class Members the unpaid balance 0f overtime and double time compensation, as required by California law, violates the provisions 0f Labor Code §§ 5 10 and 1198, and is therefore unlawfiJI. 55. Pursuant t0 Labor Code § 1194, Plaintiffs and Class Members are entitled t0 recover their unpaid overtime and double time compensation as well as interest, costs, and attorneys’ fees. /// -11- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRD CAUSE OF ACTION FAILURE TO PROVIDE MEAL PERIODS (Violation of Labor Code §§ 226.7 and 5 12; Violation 0fIWC Wage Order § 11) 56. Plaintiffs hereby re-allege and incorporate by reference all paragraphs above as though fully set forth herein 57. Labor Code § 226.7 provides that n0 employer shall require an employee t0 work during any meal period mandated by the IWC Wage Orders. 58. Section 11 of the applicable IWC Wage Order states, “[n]o employer shall employ any person for a work period 0f more than five (5) hours without a meal period of not less than 3O minutes, except that when a work period 0f not more than six (6) hours Will complete the day’s work the meal period may be waived by mutual consent of the employer and the employee.” 59. Labor Code § 512(a) provides that an employer may not require, cause, or permit an employee to work for a period 0f more than five (5) hours per day without providing the employee With an uninterrupted meal period 0f not less than thirty (30) minutes, except that if the total work period per day of the employee is not more than six (6) hours, the meal period may be waived by mutual consent 0f both the employer and the employee. 60. Labor Code § 5 12(a) also provides that an employer may not employ an employee for a work period 0fmore than ten (10) hours per day without providing the employee with a second meal period 0f not less than thirty (30) minutes, except that if the total hours worked is no more than twelve (12) hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived. 61. During the relevant time period, Plaintiffs and Class Members did not receive compliant meal periods for working more than five (5) and/or ten (10) hours per day because their meal periods were missed, late, short, and/or they were not permitted t0 take meal periods. 62. Labor Code § 226.7(b) and section 11 of the applicable IWC Wage Order require an employer t0 pay an employee one (1) additional hour of pay at the employee’s regular rate 0f compensation for each work day that a compliant meal period is not provided. -12- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 63. At all relevant times, Defendants failed t0 pay Plaintiffs and Class Members meal period premiums for missed, late, and/or short meal periods pursuant to Labor Code § 226.7(b) and section 11 0f the applicable IWC Wage Order. 64. As a result of Defendants’ failure t0 pay Plaintiffs and Class Members an additional hour of pay for each day a compliant meal period was not provided, Plaintiffs and Class Members suffered and continue t0 suffer a loss 0f wages and compensation. FOURTH CAUSE OF ACTION FAILURE TO PERMIT REST BREAKS (Violation of Labor Code § 226.7; Violation 0fIWC Wage Order § 12) 65. Plaintiffs hereby re-allege and incorporate by reference all paragraphs above as though fully set forth herein. 66. Labor Code § 226.7(a) provides that n0 employer shall require an employee t0 work during any rest period mandated by the IWC Wage Orders. 67. Section 12 0f the applicable IWC Wage Order states “[e]very employer shall authorize and permit all employees t0 take rest periods, which insofar as practicable shall be in the middle 0f each work peri0d[,]” and the “[a]uthorized rest period time shall be based 0n the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours 0r major fraction thereoflj” unless the total daily work time is less than three and one-half (3 1/2) hours. 68. During the relevant time period, Plaintiffs and Class Members did not receive a ten (10) minute rest period for every four (4) hours or major fraction thereof worked because they were required to work through their daily rest periods and/or were not authorized to take their rest periods. 69. Labor Code § 226.7(b) and section 12 0f the applicable IWC Wage Order requires an employer to pay an employee one (1) additional hour of pay at the employee’s regular rate 0f compensation for each work day that a compliant rest period is not provided. 70. At all relevant times, Defendants failed t0 pay Plaintiffs and Class Members rest period premiums for missed, late, and/or interrupted rest periods pursuant to Labor Code § -13- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 226.7(b) and section 12 0f the applicable IWC Wage Order. 71. As a result of Defendants’ failure to pay Plaintiffs and Class Members an additional hour of pay for each day a compliant rest period was not provided, Plaintiffs and Class Members suffered and continue t0 suffer a loss 0f wages and compensation. FIFTH CAUSE OF ACTION FAILURE TO PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS (Violation 0f Labor Code § 226) 72. Plaintiffs hereby re-allege and incorporate by reference all paragraphs above as though fully set forth herein. 73. Labor Code §226(a) requires Defendants t0 provide each employee With an accurate wage statement in writing showing nine pieces of information, including, the following: (1) gross wages earned, (2) total hours worked by the employee, (3) the number 0f piece-rate units earned and any applicable piece rate if the employee is paid 0n a piece-rate basis, (4) all deductions, provided that all deductions made 0n written orders 0f the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for Which the employee is paid, (7) the name of the employee and the last four digits of his 0r her social security number 0r an employee identification number other than a social security number, (8) the name and address 0f the legal entity that is the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. 74. During the relevant time period, Defendants have knowingly and intentionally failed t0 comply With Labor Code § 226(a) 0n wage statements that were provided to the Class Members. The deficiencies include, among other things, the failure to correctly state the gross and net wages earned, total hours worked, all applicable hourly rates in effect, and the number of hours worked at each hourly rate by the Class Members. 75. As a result 0f Defendants’ knowing and intentional failure t0 comply with Labor Code § 226(a), the Class Members suffered injury and damage t0 their statutorily-protected rights. Specifically, the Class Members are deemed to suffer an injury pursuant to Labor Code -14- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 §226(e) Where, as here, Defendants intentionally violated Labor Code § 226(a). The Class Members were denied both their legal right t0 receive, and their protected interest in receiving, accurate itemized wage statements under Labor Code § 226(a). Plaintiffs have had to file this lawsuit in order to analyze the extent of the underpayment, thereby causing Plaintiffs t0 incur expenses and lost time. Plaintiffs would not have had to engage in these efforts and incur these costs had Defendants provided the accurate hours worked, wages earned, and rates 0f pay. This has also delayed Plaintiffs’ ability t0 demand and recover the underpayment 0f wages from Defendants. 76. The Class Members are entitled t0 recover from Defendants the greater 0f all actual damages caused by Defendants’ failure t0 comply With Labor Code §226(a) 0r fifty dollars ($50.00) for the initial pay period in Which a Violation occurred and one hundred dollars ($100.00) per employee for each Violation in subsequent pay periods in an amount not exceeding four thousand dollars ($4,000.00) per employee, plus attorneys’ fees and costs. 77. Defendants’ Violations of California Labor Code § 226(3) prevented the Class Members from knowing, understanding, and disputing the wages paid t0 them and resulted in an unjustified economic enrichment to Defendants. As a result of Defendants’ knowing and intentional failure t0 comply with California Labor Code § 226(a), the Class Members have suffered an injury, in the exact amount 0f damages and/or penalties t0 be shown according t0 proof at trial. 78. The Class Members are also entitled t0 injunctive relief under California Labor Code § 226(h), compelling Defendants t0 comply With California Labor Code § 226. Accordingly, the Class Members seek the recovery of attorneys’ fees and costs incurred in obtaining this injunctive relief. SIXTH CAUSE OF ACTION FAILURE TO PAY ALL WAGES DUE UPON SEPARATION OF EMPLOYMENT (Violation 0f Labor Code §§ 201, 202, 203, 227.3) 79. Plaintiffs hereby re-allege and incorporate by reference all paragraphs above as though fully set forth herein. -15- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 80. Labor Code §§ 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 0r her employment, his 0r her wages shall become due and payable not later than seventy-two (72) hours thereafter, unless the employee has given seventy-two (72) hours previous notice of an intention t0 quit, in Which case the employee is enfifledUJhfi(lermmgesatflwtfineofqufifing. 81. Labor Code § 227.3 provides all accrued vacation pay is due upon termination of employment. 82. During the relevant time period, Defendants willfully failed t0 pay the Waiting Time Subclass all their earned wages upon termination, including, but not limited t0, proper minimum wage and overtime compensation, vacation pay at the regular rate, meal period premiums, and rest period premiums either at the time 0f discharge or within seventy-two (72) hours 0f their leaving Defendants’ employ. 83. Defendants’ failure to pay the Waiting Time Subclass all their earned wages at the time 0f discharge 0r within seventy-two (72) hours 0f their leaving Defendants’ employ is invfiflafionofLaborCode§§201and202. 84. Labor Code § 203 provides that if an employer willfully fails t0 pay wages owed immediately upon discharge or resignation in accordance With Labor Code §§ 201 and 202, then the wages of the employee shall continue as a penalty from the due date at the same rate until paid 0r until an action is commenced; but the wages shall not continue for more than thirty (30)days. 85. Pursuant to Labor Code § 203, the Waiting Time Subclass is entitled t0 recover from Defendants the statutory penalty, Which is defined as the Waiting Time Subclass members’ regular daily wages at their regular hourly rate 0f pay for each day they were not paid, up t0 a maximum of thirty (30) days. AU H/ /// -16- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SEVENTH CAUSE OF ACTION FAILURE TO REIMBURSE NECESSARY BUSINESS EXPENSES (Violation 0f Labor Code §§ 2800, 2802) 86. Plaintiffs hereby re-allege and incorporate by reference all paragraphs above as though fully set forth herein. 87. Labor Code § 2800 states that an employer shall in all cases indemnify his employee for losses. 88. Labor Code § 2802 requires employers to indemnify their employees for all necessary expenditures 0r losses incurred by employees in direct consequence 0f the discharge 0f their duties. 89. Section 9 0f the applicable IWC Wage Order states that when tools or equipment are required by the employer or are necessary t0 the performance 0f a job, such tools and equipment shall be provided and maintained by the employer. 90. During the relevant time period, Defendants required Plaintiffs and class members t0 incur cell phone and home internet expenses Without properly compensating them for such expenses. 91. In Violation of Labor Code §§ 2800 and 2802, Defendants failed t0 indemnify Plaintiff and class members for these expenses. 92. In committing the Violations as herein alleged, Defendants have intentionally and willfully failed to fully reimburse Plaintiffs and class members for necessary business-related costs and expenses. As a direct result, Plaintiffs and class members have suffered and continue to suffer substantial losses relating to the use and enjoyment of such compensation, wages, expenses, and attorney’s fees. EIGHTH CAUSE OF ACTION VIOLATION OF BUSINESS AND PROFESSIONS CODE SS 17200, ETSEQ. (Violation 0f Business and Professions Code §§ 17200, et seq.) 93. Plaintiffs hereby re-allege and incorporate by reference all paragraphs above as though fully set forth herein. -17- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 94. California Business and Professions Code §§ 17200, et seq., prohibits acts 0f unfair competition, Which includes any “unlawful, unfair or fraudulent business act or practice 9, 95. A Violation 0f California Business and Professions Code §§ 17200, er seq., may be predicated on a Violation 0f any state or federal law. In the instant case, Defendants’ policies and practices violated state law, causing Plaintiffs and Class Members t0 suffer and continue to suffer injuries-in-fact. 96. Defendants’ policies and practices violated state law in at least the following respects: (a) (b) (C) (d) (e) (f) Failing t0 pay all wages earned (including minimum wage and overtime wages) t0 Plaintiffs and Class Members in Violation of Labor Code §§ 227.3, 510, 511, 1182.12, 1194, 1194.2, 1197, and 1198; Failing t0 provide compliant meal periods Without paying Plaintiffs and Class Members premium wages for every day said meal periods were not provided in Violation of Labor Code §§ 226.7 and 5 12; Failing t0 authorize 0r permit compliant rest breaks without paying Plaintiffs and Class Members premium wages for every day said rest breaks were not authorized or permitted in Violation 0f Labor Code § 226.7; Failing t0 provide the Class Members With accurate itemized wage statements in Violation of Labor Code § 226; Failing t0 timely pay all earned wages to the members of the Waiting Time Subclass upon separation of employment in Violation 0f Labor Code §§ 201, 202, 203, and 227.3; and Failing to reimburse business expenses in Violation 0f Labor Code §§ 2800 and 2802. 97. As alleged herein, Defendants systematically engaged in unlawful conduct in Violation 0f the California Labor Code and IWC Wage Orders, such as failing to pay all wages -18- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (minimum and overtime wages), failing t0 provide meal periods and rest periods 0r compensation in lieu thereof, failing to furnish accurate wage statements, failing to pay all wages due and owing upon separation 0f employment in a timely manner, and failing to reimburse business expenses, all in order t0 decrease their costs 0f doing business and increase their profits. 98. At all relevant times herein, Defendants held themselves out t0 Plaintiffs and Class Members as being knowledgeable concerning the labor and employment laws of California. 99. At the time Plaintiffs and Class Members were hired, Defendants knowingly, intentionally, and wrongfully misrepresented t0 each 0f them their conformance With the California Labor Code and IWC Wage Orders, including proper payments required by law. 100. At all times relevant herein, Plaintiffs and Class Members relied 0n and believed Defendants’ representations concerning their conformance With California’s wage and hour laws all to their detriment. 101. At all times relevant herein, Defendants intentionally avoided paying Plaintiffs and Class Members wages and monies, thereby creating for Defendants an artificially lower cost of doing business in order to undercut their competitors and establish and/or gain a greater foothold in the marketplace. 102. As a result of Defendants” intentional, willful, purposeful, and wrongful misrepresentation 0f their conformance with the California Labor Code and IWC Wage Orders, Plaintiffs and Class Members suffered a loss 0f wages and monies, all in an amount to be shown according to proof at trial. 103. By Violating the foregoing statutes and regulations as herein alleged, Defendants’ acts constitute unfair and unlawful business practices under California Business and Professions Code §§ 17200, et seq. 104. As a result 0f the unfair and unlawful business practices 0f Defendants, as alleged herein, Plaintiffs and Class Members are entitled t0 injunctive relief, disgorgement, and restitution in an amount to be shown according to proof at trial. -19- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 105. Plaintiffs seek t0 enforce important rights affecting the public interest within the meaning of California Code of Civil Procedure § 1021.5. Defendants’ conduct, as alleged herein, has been and continues to be unfair, unlawful, and harmful t0 Plaintiffs, Class Members, and the general public. Based 0n Defendants’ conduct as alleged herein, Plaintiffs and Class Members are entitled to an award of attorneys’ fees pursuant to California Code of Civil Procedure § 1021.5. NINTH CAUSE OF ACTION ENFORCEMENT OF LABOR CODE 88 2698, ETSEQ. (“PAGA”) 106. Plaintiffs hereby re-allege and incorporate by reference the previous paragraphs as though fully set forth herein. 107. Pursuant t0 Labor Code §2699(a), any provision of the Labor Code that provides for a civil penalty t0 be assessed and collected by the Labor and Workforce Development Agency (“LWDA”) or any 0f its departments, divisions, commissions, boards, agencies, 0r employees for Violation 0f the Labor Code may, as an alternative, be recovered through a civil action brought by an aggrieved employee 0n behalf 0f himself 0r herself and other current 0r former employees pursuant t0 the procedures specified in Labor Code § 2699.3. 108. For all provisions of the Labor Code except those for which a civil penalty is specifically provided, Labor Code § 2699(f) imposes upon Defendants a penalty 0f one hundred dollars ($100.00) for each aggrieved employee per pay period for the initial Violation and two hundred dollars ($200.00) for each aggrieved employee per pay period for each subsequent pay period in Which Defendants violated these provisions 0f the Labor Code. 109. Defendants’ conduct violates numerous Wage Order and Labor Code sections, including, but not limited t0, the following: a. Violation of Labor Code §§ 201-203, 204, 210, 510, 511, 558 1182.12, 1194, 1194.2, 1197, and 1198 for failure t0 timely pay all earned wages (including minimum wage and overtime wages) owed t0 Plaintiffs and other aggrieved employees during employment and upon separation of employment as herein alleged; -20- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. Violation c. Violation of Labor Code §§ 226.7 and 512 for failure to provide meal periods t0 Plaintiffs and other aggrieved employees and failure to pay premium wages for missed meal periods as herein alleged; d. Violation of Labor Code § 226.7 for failure to permit rest breaks to Plaintiffs and other aggrieved employees and failure t0 pay premium wages for missed rest periods as herein alleged; e. Violation 0f Labor Code § 226 and 226.3 for failure to provide accurate itemized wage statements t0 Plaintiffs and other aggrieved employees as herein alleged; f. Violation 0f Labor Code §§ 2800 and 2802 for failure to reimburse necessary business expenses; g. Violation 0f Labor Code § 227.3 for failure t0 pay Plaintiffs and aggrieved employees all wages owed for vacation pay at their regular rate 0f pay during and upon termination 0f employment; and h. Violation 0f Labor Code §§ 1174 and 1174.5 for failure to maintain accurate and complete records showing, among other things, the hours worked daily by and the wages paid t0 aggrieved employees. 110. Plaintiffs are “aggrieved employees” because they were employed by the alleged Violator and had one or more 0f the Violations committed against them, and therefore are properly suited to represent the interests 0f all other aggrieved employees. 111. Plaintiffs have exhausted the procedural requirements under Labor Code § 2699.3 as to Defendants and are therefore able t0 pursue a claim for penalties 0n behalf of themselves and all other aggrieved employees under PAGA. 112. Pursuant t0 Labor Code §§ 2699(a), 2699.3 and 2699.5, Plaintiffs are entitled t0 recover civil penalties, in addition to other remedies, for Violations of the Labor Code sections cited above. -21- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 113. For bringing this action, Plaintiffs are entitled to attorney’s fees and costs incurred herein. PRAYER FOR RELIEF Plaintiffs, 0n their own behalf and 0n behalf 0f all others similarly situated, pray for relief and judgment against Defendants, jointly and severally, as follows: 1. For certification under California Code 0f Civil Procedure § 382 of the proposed Class, Waiting Time Subclass, and any other appropriate subclasses; 2. For appointment of Javier Diaz and George Mendez as the class representatives; 3. For appointment of Aegis Law Firm, PC, as class counsel for all purposes; 4. For compensatory damages in an amount according t0 proof at trial; 5. For an award 0f damages in the amount 0f unpaid compensation including, but not limited t0, unpaid wages, benefits, and penalties; 6. For economic and/or special damages in an amount according t0 proof at trial; 7. For liquidated damages pursuant t0 Labor Code § 1194.2; 8. For statutory penalties t0 the extent permitted by law, including those pursuant t0 the Labor Code and IWC Wage Orders; 9. For injunctive relief as provided by the California Labor Code and California Business and Professions Code §§ 17200, et seq; 10. For restitution as provided by Business and Professions Code §§ 17200, et seq.; 11. For an order requiring Defendants t0 restore and disgorge all funds to each employee acquired by means 0f any act 0r practice declared by this Court t0 be unlawful, unfair, 0r fraudulent and, therefore, constituting unfair competition under Business and Professions Code §§ 17200, et seq.; 12. For PAGA penalties; 13. For pre-judgment interest; 14. For reasonable attorneys’ fees, costs of suit, and interest t0 the extent permitted by law, including, but not limited to, Code 0f Civil Procedure § 1021.5 and Labor Code §§ 226(e), 1194, 2698, meg, 2802(c); and -22- FIRST AMENDED CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15. For such other relief as the Court deems just and proper. Dated: September 30, 2021 AEGIS LAW FIRM, PC iééi Fawn F. Bekam Attorneys for Plaintiffs Javier Diaz and George Mendez DEMAND FOR JURY TRIAL Plaintiffs hereby demand a jury trial With respect t0 all issues triable 0f right by jury. Dated: September 30, 2021 AEGIS LAW FIRM, PCMK By: Fawn F. Bekam Attorneys for Plaintiffs Javier Diaz and George Mendez -23- FIRST AMENDED CLASS ACTION COMPLAINT \OOONONUI-PUJNr-t NNNNNNNNNr-tr-tr-tr-tr-tr-tr-kr-tr-tb- ooflmm-war-KOKOOOQONm-bwwr-‘O CERTIFICATE OF SERVICE I, the undersigned, am employed in the County of Orange, State of California. I am over the age 0f 18 and not a party t0 the Within action; am employed With Aegis Law Firm PC and my business address is 9811 Irvine Center Drive, Suite 100, Irvine, California 92618. On September 30, 2021, I served the foregoing document entitled: o FIRST AMENDED CLASS ACTION COMPLAINT 0n all the appearing and/or interested parties in this action by delivering D the originalX a true copy thereof on the party(ies) addressed below as follows: Paul M. Suh David L. Cheng FORDHARRISON LLP 350 South Grand Avenue, Suite 2300 Los Angeles, CA 90071 Telephone: 213.237.2400 Facsimile: 213.237.2401 PSuh@fordharrison.com dcheng@fordharrison.com 1marquez(a)fordharrison.com MGarner@fordharris0n.com EReinold@fordharrison.com ktavl0r@fordharrison.com Attorneysfor Defendant: BGIS GLOBAL INTEGRATED SOLUTIONS US, LLC D (BY MAIL) I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that on motion 0f the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date 0f deposit for mailing this affidavit. (Cal Code Civ. Proc. § 1013(a); Fed. R. Civ. Proc. 5(a); Fed. R. Civ. Proc. 5(c).) D (BY OVERNIGHT MAIL) I am personally and readily familiar With the business practice of Aegis Law Firm PC for collection and processing correspondence for overnight delivery, and I caused such document(s) described herein t0 be deposited for delivery to a facility regularly maintained Federal Express for overnight delivery. (Cal Code Civ. Proc. § 1013(0); Fed. R. Civ. Proc. 5(c).) E (BY ELECTRONIC TRANSMISSION) I caused said document(s) t0 be served Via electronic transmission Via the above listed email addresses on the date below. (Cal. Code Civ. Proc. § 1010.6(6); Fed. R. Civ. Proc. 5(b)(2)(E); Fed. R. Civ. Proc. 5(b)(3).) D (BY PERSONAL SERVICE) I delivered the foregoing document by hand delivery t0 the addressed named above. (Cal Code Civ. Proc. § 101 1; Fed. R. Civ. Proc. 5(b)(2)(A)-) CERTIFICATE OF SERVICE \OOONONUI-PUJNr-t NNNNNNNNNr-tr-tr-tr-tr-tr-tr-kr-tr-tb- ooflmm-war-KOKOOOQONm-bwwr-‘O I declare under penalty 0f perjury under the laws of the State of California that the foregoing is true and correct. Executed 0n September 30, 2021, at Irvine, California. Delaney Graves -2- CERTIFICATE OF SERVICE EXHIBIT 2 Delaney Graves From: FormAssembly on behalf of DIR PAGA Unit Sent: Wednesday, December 8, 2021 2:24 PM To: dgraves@aegislawfirm.com Subject: Thank you for your Proposed Settlement Submission 12/08/2021 02:24:03 PM Thank you for your submission t0 the Labor and Workforce Development Agency. Item submitted: Proposed Settlement If you have questions 0r concerns regarding this submission 0r your case, please send an email t0 pagainfo@dir.ca.gov. DIR PAGA Unit on behalf 0f Labor and Workforce Development Agency Website: http://lab0r.ca.g0V/Private_Att0meys_General_Act.htm