SUPPLEMENTAL DECLARATION OF STANLEY D. SALTZMAN ISO PLAINTIFFS’ MOTION FOR APPROVAL OF PAGA ACTION SETTLEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MARLIN & SALTZMAN, LLP Stanley D. Saltzman, Esq. (SBN 090058) Cody R. Kennedy, Esq. (SBN 296061) 29800 Agoura Road, Suite 210 Agoura Hills, California 91301 Telephone: (818) 991-8080 Facsimile: (818) 991-8081 ssaltzman@marlinsaltzman.com ckennedy@marlinsaltzman.com DAVTYAN, PLC Emil Davtyan, Esq. (SBN 299363) 880 E. Broadway Glendale, California 91205 Telephone: (818) 992-2935 Facsimile: (818) 975-5525 Attorneys for Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO ELTER MACKEY, TIERRA LUSTER, on behalf of themselves and for all other current and former aggrieved employees, Plaintiffs, v. COMCAST CABLE COMMUNICATIONS MANAGEMENT LLC, a Delaware Limited Liability company; and Does 1 through 100, inclusive, Defendants. CASE NO. CGC-19-574728 SUPPLEMENTAL DECLARATION OF STANLEY D. SALTZMAN ISO MOTION FOR APPROVAL OF PAGA SETTLEMENT DATE: August 11, 2020 TIME: 10:30 a.m. DEPT: 613 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 09/25/2020 Clerk of the Court BY: RONNIE OTERO Deputy Clerk 2 SUPPLEMENTAL DECLARATION OF STANLEY D. SALTZMAN ISO PLAINTIFFS’ MOTION FOR APPROVAL OF PAGA ACTION SETTLEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Stanley D. Saltzman, declare as follows: 1. I am an attorney admitted and licensed to practice in the state of California and before this Court. The matters stated herein are known to me based upon my own personal knowledge, except as otherwise stated. I am a partner with Marlin & Saltzman LLP. counsel for Plaintiffs Elter Mackey and Tierra Luster in this matter. 2. This Declaration is submitted in support of Plaintiffs’ Supplemental Briefing Re PAGA Settlement. A. Attached Documents 3. Attached hereto as Exhibit A is a true and correct copy of the Amended Joint Stipulation of Class Action Settlement and Release entered into between the Parties, with the proposed PAGA Settlement Notice attached thereto as Exhibit A to said document. This Document contains the signatures of the Plaintiffs, as well as Plaintiffs’ counsel and Defendant’s counsel. The Defendant’s signature page is out for execution and will be lodged with the Court as soon as it is received, which is expected to be within three business days, at most. 4. Attached hereto as Exhibit B is a “redlined” version of the Amended Joint Stipulation of Class Action Settlement and Release entered into between the Parties, with the proposed PAGA Settlement Notice attached thereto as Exhibit A to said document. This redlined version is file pursuant to the Court’s request in tis Tentative Order of August 7, 2020, to assist the Court in reviewing all of the changes/edits made to said document. 5. In its Tentative Order, the Court has requested further information regarding various different issues. The issues will be addressed in the following paragraphs herein, as tied to the Supplemental Brief filed by the Plaintiffs. 6. One of the Court’s areas of concern related to certain billing entries submitted primarily by Mr. Saltzman, the undersigned declarant, and to some extent by the firm in general. 7. With regard to the estimated future hours, being a more general concern, these are commonly included in our firm’s fee applications, since it is the only vehicle by which the anticipated future hours can be brought to the Court’s attention, and recovery or credit therefore sought in connection with the fee application or the lodestar cross check analysis. The totals 3 SUPPLEMENTAL DECLARATION OF STANLEY D. SALTZMAN ISO PLAINTIFFS’ MOTION FOR APPROVAL OF PAGA ACTION SETTLEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 submitted, being 30 hours for the primary associate on the case and 10 hours for Mr. Saltzman, have been arrived at by virtue of applying estimates derived from the handling of over 100 prior class or PAGA settlements. It is my belief that these hours are very likely to be incurred, and more than likely the number will be exceeded. It is very common for issues to arise with regard to distribution matters, which involve PAGA counsel working with Defense counsel and with the Administrator, and for other issues to arise through the conclusion of the case handling. Additionally, PAGA only settlements tend to be more confusing to the aggrieved employees, because they have little familiarity with the term PAGA, and their personal payments are less that might be the case had 75% of the recovery not been paid to the State of California. On the other hand, in cases like this where Arbitration and Class Action waiver Clauses are in play, these cases are now the ONLY vehicle by which alleged wrongful wage and hour practices can be addressed on a group basis. Thus, while the recoveries for the workers are smaller than in class cases, they at least get something and the practices are addressed. Accordingly, it has been our firm’s experience that many more calls will be received than in class cases and these take time to handle. While we try to have our paralegal staff handle as many as possible, many will require attorney handling. Another such example of additional future hours includes the very briefing now being submitted by Plaintiffs’ counsel. While this does not happen in every case, it is not uncommon for Courts to request further briefing, just as has occurred herein. In regard to this brief, which ultimately resulted in a very substantial submission to the Court, many hours were incurred in the work to produce this brief. That time, also, would normally be non-recoverable by the firm, or not subject to inclusion in a “cross check lodestar” analysis, and thus we contemplate it by including for that variable within the “future” work category. Accordingly, we feel the estimated future hours are reasonable and ask that they be considered. 8. In regard to the specific research conducted by this declarant, the Court is indeed correct that most of the research conducted within the firm is accomplished by the many fine attorneys in the firm. However, there are exceptions, and this particular body of research fell into one of the categories of exceptions. In this matter, when individual settlement offers were 4 SUPPLEMENTAL DECLARATION OF STANLEY D. SALTZMAN ISO PLAINTIFFS’ MOTION FOR APPROVAL OF PAGA ACTION SETTLEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 presented to the two lead PAGA plaintiffs, following the first and unsuccessful mediation, many legal issues arose. Without question, these were case dispositive issues, and they also came with the possibility of ethical issues being presented. For this reason, I personally joined with others in the firm to research the issues, debate them with other attorneys, and reach conclusions to then share with the clients. 9. As discussed more fully in the brief, at pages 34 - 38 thereof, had the clients decided that they wanted to accept the offers, which they certainly had the right to do, then given the pending Supreme Court appeal in the case of Kim v. Reins, and depending on its eventual ruling, such an acceptance by them had the potential to eliminate the standing of the plaintiffs to continue with the PAGA action. And while my firm, and me personally, conducted a great deal of research into the issue, I also personally reached out to no less than four respected wage and hour class action/PAGA mediators to obtain their opinions on how they were seeing this issue “go down” in their mediations. While they were all quite interested and helpful, in the end, without the benefit of the eventual decision in the Kim v. Reins none of them could really assist. They deal with settlements, and these offers were intended to cut off the case. So with this explanation of the entire case being at risk, I hope that the Court will better understand why I joined in the research and the debates we had internally (largely unbilled) while trying to arrive at the advice to offer our clients. I felt that it was not only reasonable to do so, but moreover that it was my obligation as the senior partner to conduct this research. 10. Having explained the reasoning behind the research conducted by the undersigned, this flows directly into the conduct of the two PAGA representatives in the case. The reality was that after the firm had fully come to terms with the issues, and the advice that should be provided to the clients, it ended up not mattering. Much to our pleasant surprise, both of the two clients, completely separately and without input from the other, were informed of the offers, the legal issues, their right to accept the offers, the possibility of their standing to continue being eliminated, and then each of them, without hesitation, then instructed us, as their counsel, to inform the Defendant’s counsel that they would not take the offers, and that they wanted to continue forward on behalf of the entire group of aggrieved employees. I can personally assure 5 SUPPLEMENTAL DECLARATION OF STANLEY D. SALTZMAN ISO PLAINTIFFS’ MOTION FOR APPROVAL OF PAGA ACTION SETTLEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this Court that is not what we always hear from persons placed in this situation as a result of individual offers to walk away. 11. After considering all of the above regarding why I personally conducted the research questioned by the Court, if the Court is not satisfied that the hours should be paid at my hourly rate, then as discussed at p. 37 of the brief, the Court should at the very least consider utilizing a blended rate tied to my rate of $900.00 per hour and Mr. Kennedy’s rate of $625.00 per hour. This would yield a blended rate of $762.50. When applied to the 23.6 hours in question, this would result in a total of $17,995.00 for this work, as compared to the original sum of $21,240.00 for the work. The differential would result in a lodestar reduction of $3,245.00. While we do not believe the issues here merit that reduction, it would also appear to not really move the needle on the lodestar before the Court. 12. With regard to the Court’s request for further information on various team members, we offer the following. 13. Attorney Stephen O’Dell graduated from Pepperdine University School of Law in 1987 and has continuously practiced law since being admitted to the bar in 1987. In 1997, he joined the law firm of Marlin & Saltzman, and for over two decades, has focused on complex litigation and, specifically, representative, mass tort, and class actions on behalf of consumers and employees. Over the course of his practice with Marlin & Saltzman, he has been responsible for all facets of representative and class action cases, including those involving employment law, and other complex litigation, from pre-filing investigation through discovery, trial and appeal. His $775.00 hourly rate has been approved in prior settlements by Courts throughout the State. 14. Associate Attorney Corey Smith graduated from Pepperdine University School of Law, and has been licensed to practice law in California since 2016. Mr. Smith joined Marlin & Saltzman in early 2019, and since then has focused his practice on representing workers in complex litigation, primarily in the realm of wage and hour class action and PAGA litigation. Mr. Smith has been actively involved in numerous ongoing PAGA/class action cases, including others involving similar claims as alleged in this action. His rate has been submitted to a few other courts, and has been included without any reduction in lodestar cross checks. 6 SUPPLEMENTAL DECLARATION OF STANLEY D. SALTZMAN ISO PLAINTIFFS’ MOTION FOR APPROVAL OF PAGA ACTION SETTLEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15. Senior Paralegal Susan Joseph’s career spans 20 years. She joined Marlin & Saltzman in 2008, and since then has contributed to some of the firm’s most complex and high profile wage and hour class actions providing support at all stages of litigation. Mrs. Joseph is highly proficient at factual research and investigation, data analysis, transcript analysis, and trial presentation software. She is also a member of the firm’s trial team, and has participated in multiple trials and mediations throughout her time with the firm. Finally, she has been trained through various professional programs to conduct damages date analysis, and in this case conducted much of the reviews to assist the firm in reaching its damages matrix for mediation purposes. 16. Mr. Kennedy’s extensive experience in his almost 6 years with the firm have seen him grow to become primary case handler, certification drafter and oral argument presenter in court (successfully on three recent contested certification matters) primary appellate attorney (both drafting and arguing to the Court) and a part of our trial team, having participated in at least two trials. His hourly rate is well earned and as is true above, it has been submitted as part of lodestar cross checks on numerous occasions, without question. His appellate work has include a successful defense in the Ninth Circuit of a novel reporting time case. See, Herrera v. Zumiez, Inc. (9th Cir. 2020) 953 F.3d 1063. 17. Given the many cases the firm has handled, including trials and settlements, our rates are regularly reviewed and “almost” without exception, have been accepted by the courts. The qualification via the word “almost” is included because I simply cannot recall an instance where the rates have been reduced, but it is possible. If so, it is indeed rare. The rates listed above are in all instances the current rates, since case law is clear that in these circumstances, the current rate can be used for an entire case. But because this case did not last long, the rates are quite reflective of rates recently submitted. In addition, in order to certain that the rates the firm submits are similar to those in the local prevailing market, I also regularly review submissions and orders in each jurisdiction, including Northern California. It is my belief that the rates submitted herein are consistent with those in this legal community. 18. Marlin & Saltzman normally maintains a case count of no more than about 7 cases 7 SUPPLEMENTAL DECLARATION OF STANLEY D. SALTZMAN ISO PLAINTIFFS’ MOTION FOR APPROVAL OF PAGA ACTION SETTLEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 per attorney, a load which enables the firm to devote substantial time and energy to each case. Consequently, there are always other meritorious cases presented to the firm which could have generated substantial fees, but have to be declined, even during the pendency of this action, in order to devote the attention necessary to each case. Further information about the firm’s intake sources and leads is set forth in the brief on p. 44 thereof, and respectfully incorporated herein and sworn to thereby. The bottom line is that every case taken on results in at least two declined. 19. In the Court’s Tentative Ruling, inquiry was made as to whether the costs presented to the Court included any meal expenses. As a firm-wide practice, meals are never included in our cost presentations. The firm obviously reimburses the attorneys for meals while on the road, for example, but does not pass those on to the case costs. It is again possible that under extenuating circumstances, such as when eating with a client during a meeting or deposition, a meal may be included, but that was not the case in this matter. 20. Turning now to the issue of the enhancement award for the two lead PAGA plaintiffs, the supplemental brief makes very clear that we, as counsel for the plaintiffs, feel very strongly that they merit a larger than normal award, and we fervently believe that it should be in the amount of $25,000.00 each. Not only did the two plaintiffs assist counsel at every request and literally make themselves available on literally a moment’s notice, and provide valuable insight at every step, but they did much more. As discussed in the supplemental brief with as much detail as we can present without breaching the settlement mediation privilege, which the Defendant has elected not to waive, these two plaintiffs went far beyond what is normally asked of them, or in this case not even asked of them. When they had the opportunity to take individual settlements, at a time when it was unknown whether or not the case could continue without them, they immediately advised counsel that they wanted to proceed with the action, as their main goal was the good of the aggrieved employees. This was conduct that we really did not have a reason to expect. Moreover, throughout the case, they provided their knowledge of the underlying facts, as well as the locations involved, the policies and practices and were key to helping counsel understand the factual support for the claims being presented. This was particularly critical here 8 SUPPLEMENTAL DECLARATION OF STANLEY D. SALTZMAN ISO PLAINTIFFS’ MOTION FOR APPROVAL OF PAGA ACTION SETTLEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 because the mediations were indeed in the early phase of the case, and thus when the Defendant countered counsels’ arguments, they were able to step up and help my office understand the counter-points. As a result, they were key parts of the presentation of the case, which enabled the negotiations to move so dramatically from the first to the second mediations. And during that same time, they made their stand for the aggrieved employees, and let it be known that they would not be bought off in exchange for the claims of the group. Never has it been more clear that the end result of a particular case could not have happened but for the backbone of and the contributions by the representative plaintiffs. 21. At the end of the day, while the plaintiffs provided insight throughout the case, and remained steadfast in their belief in the case, they did not ask for or seek any particular enhancement award. And in refusing the settlement offers made to them directly, each of them did so understanding that no eventual settlement would be contingent on them obtaining any specific enhancement award. The amount requested was decided on solely by counsel, due to all of the significant reasons discussed above, and it is hoped that the Court will agree. 22. Attached as Exhibit C hereto is a copy of the Form uploaded to the LWDA relative to the Amended Settlement Agreement and Release of this settlement, for the LWDA’s consideration. 23. Attached as Exhibit D hereto are two documents, together reflecting proof of the uploading on July 6 to the LWDA, of the original Settlement Agreement and Release, as requested by the Court in its Tentative Ruling. The two documents consist of a copy of the Form that was uploaded by my firm, and then a copy of an email from the LWDA to my assistant, Sandy Laranjo, confirming that our form had been received by the LWDA. I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct and that this declaration was executed on this 25th day of September, 2020, in Agoura Hills, California. Stanley D. Saltzman x EXHIBIT A to Declaration of Stanley D. Saltzman Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO MARLIN & SALTZMAN, LLP STANLEY D. SALTZMAN (SBN 090058) CODY R. KENNEDY (SBN 296061) BRADLEY R. FAGNANI (SBN 261330) 29800 Agoura Road, Suite 210 Agoura Hills, California, 91301 Telephone: +1.818.991.8080 Facsimile: +1.818.991.8081 ssaltzman@marlinsaltzman.com ckennedy@marlinsaltzman.com bfagnani@marlinsaltzman.com Attorneys for Plaintiffs ELTER MACKEY and TIERRA LUSTER MORGAN, LEWIS & BOCKIUS LLP DARYL S. LANDY (SBN 136288) 600 Anton Boulevard, Suite 1800 Costa Mesa, California 92626-7653 Telephone: +1.714.830.0600 Facsimile: +1.714.830.0700 daryl.landy@morganlewis.com ANDREW P. FREDERICK (SBN 284832) One Market, Spear Street Tower San Francisco, California 94105-1126 Telephone: +1.415.442.1000 Facsimile: +1.415.442.1001 andrew.frederick@morganlewis.com Attorneys for Defendant COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO ELTER MACKEY, TIERRA LUSTER, on behalf of themselves and for all other current and former aggrieved employees, Plaintiffs, vs. COMCAST CABLE COMMUNICATIONS MANAGEMENT LLC, a Delaware Limited Liability Company; and DOES 1 through 100, inclusive, Defendants. Case No. CGC-19-574728 AMENDED LABOR CODE PRIVATE ATTORNEYS GENERAL ACT SETTLEMENT AGREEMENT AND RELEASE 1 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO This Amended Labor Code Private Attorneys General Act (“PAGA”) Settlement Agreement and Release (“Agreement”) is made by and between Plaintiffs Elter Mackey and Tierra Luster (“Plaintiffs”), on behalf of themselves and as the authorized proxies and agents for the State of California, and Defendant Comcast Cable Communications Management, LLC (“Comcast” or “Defendant”) (collectively, the “Parties”). 1. THE CONDITIONAL NATURE OF THIS AGREEMENT 1.1. This Agreement and all associated exhibit(s) or attachment(s) are made for the purpose of settling the PAGA representative claims, as described herein, in the above-captioned action. This Agreement and the settlement it evidences are made in compromise of disputed claims. Because this action has been settled on a PAGA representative basis, the “superior court shall review and approve any settlement of any civil action filed pursuant to [Labor Code §§ 2698 et seq.].” Cal. Lab. Code § 2699(l)(2). Accordingly, the Parties enter into this Agreement and associated settlement on a conditional basis. If the Court denies Plaintiff’s Motion for Approval of this settlement with prejudice and Judgment and/or the Effective Date does not occur, this Agreement shall be deemed null and void ab initio, it shall be of no force or effect whatsoever, it shall not be referred to or utilized for any purpose whatsoever, and the negotiation of the Agreement shall remain subject to the provisions of California Evidence Code section 1152 and any other analogous rules of evidence that are applicable. 1.2. Comcast denies all the allegations asserted in the Complaint and it also denies any claims for relief, including claims for civil penalties, attorneys’ fees, and costs of suit. Comcast has agreed to resolve the Action through this Agreement, but to the extent this Agreement is not approved or the Effective Date does not occur, Comcast does not waive, but rather expressly reserves, all rights to challenge all such claims and allegations in the Action upon all procedural and factual grounds, as well as to assert any and all other potential defenses or privileges. Plaintiffs and Plaintiffs’ Counsel agree that Comcast retains and reserves these rights, and agree not to argue or present any argument, and hereby waive any argument, that based on this Agreement, Comcast cannot assert any and all potential defenses and privileges if this Action were to proceed. 2 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 2. DEFINITIONS The following terms, when used in this Agreement, shall have the following meanings: 2.1. “Action” means the above-captioned action entitled Elter Mackey, et al. v. Comcast Cable Communications Management, LLC, San Francisco County Superior Court Case No. CGC-19-574728 (filed March 22, 2019). 2.2. “Approval Date” means the date that the Superior Court enters the Approval Order. 2.3. “Approval Order” means the Superior Court’s Order approving this Labor Code Private Attorneys General Act Settlement Agreement and Release. 2.4. “Complaint” means the Complaint filed on March 22, 2019. 2.5. “Court” means the San Francisco County Superior Court. 2.6. “Database” means information in electronic form provided by Comcast to the Settlement Administrator (as defined below) that for each PAGA Settlement Employee includes his or her name, last-known address, social security number, and the total number of Pay Periods Worked by the PAGA Settlement Employee for Comcast in California from January 4, 2018 through the Approval Date. 2.7. “Comcast’s Counsel” means Morgan, Lewis & Bockius LLP. 2.8. “Effective Date” means the latest of: (i) the Approval Date if no objection is made or filed to the settlement; (ii) if an objection is made or filed and the Approval Date occurs, but no appeal is filed, the expiration of the deadline for any appeals; and (iii) if an objection is made or filed and the Approval Date occurs, and an appeal is filed, the date that an appeal is resolved resulting in a final court order approving this settlement. 2.9. “Enhancement Payment” means the amount approved by the Court to be paid to the PAGA Representatives in recognition of the PAGA Representatives’ efforts in coming forward as PAGA Representatives and participating in the Action. 2.10. “Funding Date” means forty (40) calendar days after Comcast Counsel’s receipt of the Approval Order, except that Comcast will have no obligation to fund the settlement if the Effective Date has not occurred. 3 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 2.11. “Judgment” means the judgment to be executed and entered by the Court pursuant to this Agreement. 2.12. “Maximum Settlement Amount” is the sum of Three Million Two Hundred Fifty Thousand Dollars and Zero Cents ($3,250,000.00), which represents the maximum amount payable pursuant to this settlement by Comcast, and which includes the PAGA Payment (as defined below), Plaintiffs’ Counsel’s attorneys’ fees (not to exceed 33 1/3 percent of the Maximum Settlement Amount) and costs, Settlement Administration Costs, and Enhancement Payments to the PAGA Representatives. 2.13. “PAGA” means the California Labor Code Private Attorneys General Act of 2004. Cal. Lab. Code §§ 2698 et seq. 2.14. “PAGA Payment” means the portion of the Maximum Settlement Amount (after excluding Plaintiffs’ Counsel’s attorneys’ fees and costs, Settlement Administration Costs, and the Enhancement Payments to the PAGA Representatives) that represents the amount payable in this settlement for PAGA civil penalties, 75% of which will be paid to the LWDA and 25% of which will be paid to the PAGA Settlement Employees. All PAGA Settlement Employees will receive a monetary payment from the PAGA Payment. 2.15. “PAGA Release Period” means the period from January 4, 2018 through the Approval Date. 2.16. “PAGA Released Claims” shall mean any and all claims against Releasees that have been or could have been asserted under the PAGA based upon alleged violations of the California Labor Code, the Industrial Welfare Commission Wage Orders (“Wage Orders”), and any other provision of law as alleged in the Complaint and/or the Labor Workforce Development Agency (“LWDA”) Letter sent on behalf of Plaintiffs. This release includes, but is not limited to, claims based on meal periods, rest breaks, off-the-clock work, minimum wage, straight time wages, overtime, double time, unlawful deductions, premium pay, pay stubs/wage statements, final pay, timing of pay, record keeping/retention, expense reimbursement, commission rates/plans, and suitable seating, whether known or unknown, and whether anticipated or unanticipated. This release applies to claims that accrue through the Approval Date, whether 4 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO based on the Wage Orders, including, but not limited to, Sections 3, 4, 7, 11, 12, 14, and 20, the California Labor Code, including, but not limited to, Sections 201, 202, 203, 204, 210, 223, 226, 226.3, 226.4, 226.7, 510, 512, 558, 1174, 1174.5, 1193.5, 1193.6, 1194, 1194.2, 1194.5, 1197, 1197.1, 1198, 2698-2699, 2751, 2802, and any other provision of law, as well as all associated claims for penalties, attorneys’ fees, and costs and interest. Plaintiffs release these claims in their representative capacity as proxies for the LWDA and as private attorney general “aggrieved employees” acting on behalf of themselves and the PAGA Settlement Employees. This release shall not be construed as a release of any PAGA Settlement Employee’s underlying Labor Code or Wage Order claims. 2.17. “PAGA Representatives” means Plaintiffs Elter Mackey and Tierra Luster. 2.18. “PAGA Representative Released Claims” means Plaintiffs Elter Mackey and Tierra Luster’s additional release of rights and claims upon the Effective Date, as follows: Plaintiffs Elter Mackey and Tierra Luster fully release the Releasees from any and all PAGA Released Claims and also generally release and discharge the Releasees from all claims, actions, causes of action, lawsuits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, bonuses, controversies, agreements, promises, claims, charges, complaints and demands whatsoever, whether in law or equity, known or unknown, which Plaintiffs or their heirs, executors, administrators, successors, and assigns, may now have or hereafter later determine that they have or had upon, or by reason of, any cause or thing whatsoever relating to any matter, including their employment or termination of employment, against Comcast and/or other Releasees. This includes, but is not limited to, claims arising under the Americans With Disabilities Act, the National Labor Relations Act, the Fair Labor Standards Act (“FLSA”), the Equal Pay Act, the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq., as amended, (including but not limited to, breach of fiduciary duty and equitable claims to be brought under § 1132(a)(3)), the Worker Adjustment and Retraining Notification Act, as amended, Title VII of the Civil Rights Act of 1964, the Rehabilitation Act of 1973, the Civil Rights Acts of 1866, 1871 and 1991, including Section 1981 of the Civil Rights Act, the Family and Medical Leave Act, the California Fair Employment and Housing Act, the 5 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO California Family Rights Act, PAGA, California Business and Professions Code §§ 17200, et seq., the California Labor Code, and/or any other federal, state or local human rights, civil rights, wage-hour, pension or labor law, rule, statute, regulation, constitution or ordinance and/or public policy, contract or tort law, or any claim of retaliation under such laws, or any claim of breach of any contract (whether express, oral, written or implied from any source), or any claim of intentional or negligent infliction of emotional distress, tortious interference with contractual relations, wrongful or abusive or constructive discharge, defamation, prima facie tort, fraud, negligence, loss of consortium, malpractice, breach of duty of care, breach of fiduciary duty, or any action similar thereto against the Releasees, including any claim for attorneys’ fees, expenses or costs based upon any conduct from the beginning of time up to and including the Approval Date. This General Release specifically includes any and all claims, demands, obligations and/or causes of action for damages, restitution, penalties, interest, and attorneys’ fees and costs relating to or in any way connected with the matters referred to herein, whether or not known or suspected to exist, and whether or not specifically or particularly described herein. Specifically, Plaintiffs waive all rights and benefits afforded by California Civil Code Section 1542, which provides: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. Plaintiffs do not waive any rights with respect to, or release the Releasees from, any claims for California Workers’ Compensation benefits (except that Plaintiffs hereby release and waive any claims that, as a result of their termination, they are entitled to additional benefits or payments); any claim for unemployment compensation benefits; any claim that cannot be released by private contract; or any claim for breach of the Settlement Agreement’s terms. Plaintiffs’ general release of claims will be valid upon the Effective Date. 2.19. “PAGA Settlement Employees” shall mean and include all current and former non-exempt retail sales employees who worked for Comcast in California at any point from January 4, 2018, through and including the Approval Date. 2.20. “Plaintiffs’ Counsel” means Marlin & Saltzman LLP. 6 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 2.21. “Releasees” means Defendant Comcast Cable Communications Management, LLC, and its parents (including Comcast Corporation), subsidiaries, affiliates, owners, predecessors, successors, and associated organizations, past and present, and each of their respective trustees, directors, officers, agents, joint employers, attorneys, managing agents, employees, contractors, insurers, benefit plans, representatives, assigns, all persons acting by, through, under, or in concert with any of them, and/or all persons acting on behalf of them. 2.22. “Settlement Administration Costs” shall mean the amount to be paid to the Settlement Administrator for the cost of administering this settlement, which is currently a fixed fee of $11,000.00. 2.23. “Settlement Administrator” shall be the CPT Group Inc. 3. RECITALS 3.1. Comcast employed Plaintiffs as non-exempt retail sales employees in California. 3.2. On January 4, 2019, Plaintiffs gave written notice to the LWDA of the provisions of the Labor Code that Comcast allegedly violated (“the LWDA Letter”). The LWDA did not respond to the LWDA Letter and did not notify Plaintiffs or Comcast that it intended to investigate Plaintiffs’ allegations. 3.3. On March 22, 2019, Plaintiffs filed a representative action complaint (the “Complaint,” as defined in section 2.4, above) against Comcast for recovery of civil penalties under the PAGA for Comcast’s purported violations of Labor Code Sections 201-204, 223, 226, 226.3, 226.4, 226.7, 510, 512, 558, 1174, 1174.5, 1193.5, 1193.6, 1194, 1194.5, 1198, 2751, 2802, 2698-2699, and applicable provisions of the Wage Orders for the alleged failure to pay all wages owed (minimum, regular, and overtime), failure to state commissions in a signed contract, failure to set forth the method by which the commissions are computed and paid, failure to provide accurate and itemized wage statements, failure to provide meal and rest periods, failure to reimburse required business expenses, failure to pay all wages timely and upon termination, failure to maintain required business / employment records, and failure to provide suitable seating. Compl., ¶¶ 1, 6, 16. 7 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 3.4. Comcast had denied and continues to deny all of the allegations in the Complaint, and specifically denies that it has violated any section of the Labor Code or IWC Wage Orders or committed any misconduct, statutory, or regulatory violation, wrongdoing, or any other actionable conduct of any kind. Comcast further denies that this action may be maintained as a representative action on behalf of any employees of Comcast. 3.5. The Parties understand, acknowledge, and agree that this Agreement constitutes a compromise of the representative PAGA claims and that it is the desire and intention of the Parties to reach a final and complete resolution of the representative PAGA claims (on behalf of the State of California) that were asserted or that could have been asserted against Comcast based upon the allegations in the PAGA notice letter and/or the Complaint. The Parties further acknowledge that this Agreement is a compromise of disputed claims and that nothing in this Agreement shall be construed as an admission by Comcast of liability. 3.6. The Parties believe and agree that this Agreement provides for a fair, adequate, and reasonable resolution of the PAGA representative claims, given the strengths and weaknesses of Plaintiffs’ claims, Comcast’s defenses to any liability at all, and the risk that the Court would significantly reduce any penalties that could be awarded under Labor Code section 2699(e)(2). The Parties have arrived at this settlement after extensive, arms-length negotiations, that took into account all relevant factors, present and potential. 3.7. Under California law, the State of California may assess and collect civil penalties from employers for violations of certain provisions of the Labor Code. See Cal. Lab. Code §§ 2698 et seq. Under PAGA, however, if an “aggrieved employee” “give[s] written notice by online filing with the Labor and Workforce Development Agency and by certified mail to the employer of the specific provisions of [the Labor Code] alleged to have been violated,” and the State thereafter decides not to investigate, the employee may, “as an alternative” to enforcement by the State, act as a proxy or agent of the state’s labor law enforcement agencies and bring a civil action under PAGA to recover civil penalties “on behalf of himself or herself and other current or former employees.” Cal. Lab. Code §§ 2699(a), 2699.3(a)(1)(A). “[C]ivil penalties recovered by aggrieved employees shall be distributed as follows: 75 percent to the Labor and 8 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO Workforce Development Agency . . . and 25 percent to the aggrieved employees.” Cal. Lab. Code § 2699(i). 4. OPERATIVE TERMS OF THE PAGA SETTLEMENT The Parties to the Action agree as follows: 4.1. Maximum Settlement Amount. Comcast shall pay a Maximum Settlement Amount of Three Million Two Hundred Fifty Thousand Dollars and Zero Cents ($3,250,000.00) to resolve the representative PAGA claims that were asserted or that could have been asserted against Comcast in the Complaint. The Maximum Settlement Amount includes the PAGA Payment, Plaintiffs’ Counsel’s attorneys’ fees (not to exceed 33 1/3 percent of the Maximum Settlement Amount) and costs, costs of settlement administration by a third-party settlement administrator, and Enhancement Payments of up to $25,000 each to the PAGA Representatives. Under no circumstances shall Comcast be obligated to pay any amount in excess of the Maximum Settlement Amount. 4.2. Settlement Administrator. 4.2.1. The Settlement Administrator shall be the CPT Group, Inc. and the Settlement Administration Costs shall be a fixed amount of $11,000. The Settlement Administration Costs shall include: all costs of administering the Settlement, including, but not limited to, all tax document preparation, custodial fees, and accounting fees incurred by the Settlement Administrator; all costs and fees associated with preparing, issuing and mailing any and all communications to PAGA Settlement Employees; all costs and fees associated with issuing the individual PAGA Payments and the payment to the State of California LWDA; and all costs and fees associated with issuing IRS Form 1099s (to the extent any are required by applicable law) relating to payments made under the settlement; all costs and fees associated with preparing any tax returns and any other filings required by any governmental taxing authority or agency (to the extent any are required by applicable law); all costs and fees associated with preparing any other notices, reports, or filings to be prepared in the course of administering the settlement, and any other costs and fees incurred and/or charged by the Settlement Administrator in connection with the execution of its duties under this Agreement. 9 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 4.2.2. The actions of the Settlement Administrator shall be governed by the terms of this Agreement, any Orders from the Court, and any agreement by counsel of record regarding communications with the Settlement Administrator. 4.2.3. In the event that either Comcast’s Counsel or Plaintiffs’ Counsel takes the position that the Settlement Administrator is not acting in accordance with the terms of the Agreement, such party shall meet and confer first with opposing counsel and/or, if necessary, with the Settlement Administrator or the Court to attempt to resolve the issue. 4.3. Calculation of Individual PAGA Payments. 4.3.1. Each PAGA Settlement Employee, including Plaintiffs, will be entitled to receive an Individual PAGA Payment which shall be calculated as follows: a. Based on its business records, Comcast will calculate, and provide to the Settlement Administrator, the number of pay periods worked in California by each PAGA Settlement Employee from January 4, 2018, through the Approval Date (“Pay Periods Worked”). b. The aggregate total number of Pay Periods Worked by PAGA Settlement Employees will be deemed the “Total Pay Periods.” c. The respective share of the PAGA payment for each PAGA Settlement Employee will be calculated by dividing their Pay Periods Worked by the Total Pay Periods. These calculations will result in each PAGA Settlement Employee’s “Pay Period Percentage.” d. Each PAGA Settlement Employee will be paid from the 25% of the PAGA Payment allocated to the PAGA Settlement Employees based on their own Pay Period Percentage according to the following formula: 25% of the PAGA Payment x individual employee’s Pay Period Percentage = Individual PAGA Payment. 4.3.2. Because the Individual PAGA Payment is a payment in compromise and settlement of a claim for alleged civil penalties, the Individual PAGA Payment will be treated as non-wage income with no tax withholdings to be made, and will be reported, if required by applicable tax laws, by the Settlement Administrator on IRS Form 1099s to the respective PAGA Settlement Employee and applicable governmental authorities. The Settlement Administrator 10 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO will issue an IRS Form 1099 to Plaintiffs’ Counsel and applicable governmental authorities for the payment of attorneys’ fees and costs in the amount approved by the Court. Plaintiffs and Plaintiffs’ Counsel each agree to hold Comcast and the Releasees harmless from and against any damage or penalty incurred by Comcast as a result of any taxing authority assessing any tax or penalty upon Comcast as a consequence of any tax being due and unpaid on each of their portions of the Maximum Settlement Amount. 4.4. Enhancement Payments. Subject to Court approval, the Enhancement Payments to the PAGA Representatives Elter Mackey and Tierra Luster will be paid in an amount not to exceed Twenty-Five Thousand Dollars and Zero Cents ($25,000.00) each from the Maximum Settlement Amount for the PAGA Representatives’ service and assistance in this Action. The Enhancement Payment to the PAGA Representatives will be in addition to their Individual PAGA Payments. Because the Enhancement Payments represent payment to the PAGA Representatives for service in this Action, payroll taxes will not be withheld from the Enhancement Payments. The Settlement Administrator will report the Enhancement Payments on an IRS Form 1099, and any other required tax forms, and will provide the form(s) to the PAGA Representatives and to the pertinent taxing authorities as required by law. The PAGA Representatives assume full responsibility for paying all taxes, federal and state, if any, due as a result of the Enhancement Payment and agree to indemnify Comcast and the Releasees for any such taxes owed by them. An award by the Court of less than the requested Enhancement Payments (or no Enhancement Payments at all) shall not be a basis upon which Plaintiffs or Plaintiffs’ Counsel may void this Agreement, and any portion of the requested Enhancement Payments not awarded shall become part of the PAGA Payment. 4.5. Releases 4.5.1. Upon the Effective Date, the State of California, the PAGA Representatives, and each PAGA Settlement Employee shall be deemed to have fully, finally, and forever released the Releasees from the PAGA Released Claims for and during the PAGA Release Period. 11 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 4.5.2. Upon the Effective Date, the PAGA Representatives, Plaintiffs Elter Mackey and Tierra Luster, shall be deemed to have fully, finally, and forever released Releasees from all PAGA Representative Released Claims through the Effective Date. 4.5.3. In addition, the PAGA Representatives, Plaintiffs Elter Mackey and Tierra Luster, shall be deemed to have expressly waived and relinquished, to the fullest extent permitted by law, the provisions, rights, and benefits they may otherwise have had relating to the PAGA Representative Released Claims pursuant to Section 1542 of the California Civil Code, which provides as follows: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. 4.6. Settlement Payment Procedures. 4.6.1. No later than fifteen (15) calendar days after the Effective Date, the Settlement Administrator shall send to Comcast’s counsel electronic wiring instructions for Comcast to fund the Maximum Settlement Amount. 4.6.2. No later than thirty (30) calendar days after Comcast Counsel’s receipt of the Approval Order, provided that the Effective Date has occurred, Comcast will send the Database to the Settlement Administrator. The Settlement Administrator shall treat the information in the Database as confidential at all times and shall use the information solely to manage the notice and payment process described herein, shall not disclose the information to anyone (including Plaintiffs’ counsel), except to applicable taxing authorities if required, or pursuant to express written authorization of Comcast, the individual in question, or by order of the Court. 4.6.3. No later than forty (40) calendar days after Comcast Counsel’s receipt of the Approval Order, provided that the Effective Date has occurred, Comcast will wire to the Settlement Administrator a payment in the amount of Three Million Two Hundred Fifty Thousand Dollars and Zero Cents ($3,250,000.00) to fund the PAGA Settlement Fund. 12 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 4.6.4. Because this is a PAGA settlement and not a class action settlement, and because there is no claims procedure and no ability to “opt out,” there will be no prior notice to the PAGA Settlement Employees advising them of the PAGA settlement or any procedure by which the PAGA Settlement Employees must submit claims in order to receive a settlement payment. Fourteen (14) calendar days following the Settlement Administrator’s receipt of the wired settlement funds from Comcast, the Settlement Administrator shall mail a Notice (substantially in the form attached hereto as Exhibit A) and a settlement check to each PAGA Settlement Employee in the amount of their respective Individual PAGA Payment. 4.6.5. Prior to mailing the Notice and settlement check, the Settlement Administrator shall check the addresses provided in the Database using the National Change of Address database and shall update any addresses accordingly. Should any of the Notices be returned as undeliverable, the Settlement Administrator will conduct a search for a more current address (by skip trace or other reasonable method) and re-mail the Notice and settlement check to the more current address, if any. 4.6.6. Expiration of Settlement Checks. Individual PAGA Payment checks issued to PAGA Settlement Employees pursuant to this Agreement will expire 180 calendar days from the date they are issued by the Settlement Administrator. After the 180-day period, the Settlement Administrator shall remit any unclaimed funds to the State of California Unclaimed Wages Fund pursuant to the then-applicable instructions of the California State Controller. 4.7. Attorneys’ Fees and Costs. The Settlement Administrator shall pay to Plaintiffs’ Counsel from the Maximum Settlement Amount the amount of attorneys’ fees (not to exceed 33 1/3 percent of the Maximum Settlement Amount) and costs awarded by the Court. An award by the Court of less than the amount of requested attorneys’ fees and/or costs shall not be a basis upon which Plaintiffs or Plaintiffs’ Counsel may void this Agreement, and any amounts of requested fees or costs not awarded shall become part of the PAGA Payment. The Settlement Administrator will issue an IRS Form 1099 to Plaintiffs’ Counsel as required by IRS regulations. The Settlement Administrator shall pay the amount awarded by the Court to Plaintiffs’ Counsel no later than fourteen calendar (14) days following the Funding Date. This payment shall satisfy 13 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO any claims for attorneys’ fees and costs that Plaintiffs’ Counsel may assert in connection with this litigation and settlement. This payment shall therefore cover all past and future fees and costs incurred to prosecute, settle, and administer this action, including obtaining approval of the settlement and entry of judgment pursuant to the settlement. Plaintiffs and Plaintiffs’ Counsel represent that they are not aware of and have no knowledge of any liens filed or placed on this Action by any person. 4.8. Non-Reversionary. This settlement is non-reversionary. Any portion(s) of the requested Enhancement Payments to the PAGA Representatives or the requested attorneys’ fees or costs not awarded by the Court shall become part of the PAGA Payment. 4.9. Impact of Non-Approval by Court. Should the Court not approve the settlement, the Parties shall meet and confer to make reasonable efforts to address any issues raised by the Court in order to obtain the Court’s approval, except that Comcast will not be required under any circumstances to increase the Maximum Settlement Amount. If the Parties cannot obtain approval from the Court, or if the Effective Date does not occur, the Parties shall be restored to their litigation positions as of April 24, 2020, and this Agreement shall be deemed null and void, shall be of no force or effect whatsoever, and shall not be referred to or used in this or any other action. 4.10. Motion for Approval & Proposed Judgment. Pursuant to the Court’s direction on May 5, 2020, the Parties will file a Motion for Approval of the PAGA settlement (“Motion”). Plaintiffs’ Counsel will prepare the Motion for Approval of this Agreement and will provide Comcast’s Counsel with at least ten (10) days to review and provide feedback on the Motion before the Motion is filed. The Motion will be subject to Comcast’s review and approval. The Motion will include a proposed approval order and proposed judgment. Plaintiffs’ counsel will send a copy of this Agreement and the Motion to the LWDA on the same date they file these documents with the Court. Neither Plaintiffs nor Plaintiffs’ Counsel can rescind or back out of the Settlement if the Court does not approve the Motion without prejudice; to the contrary, this Settlement shall remain in effect if the Court does not approve the Motion without prejudice. Plaintiffs and Plaintiffs’ Counsel further agree to take all necessary steps to seek approval of the 14 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO Settlement if the Court denies approval without prejudice. Upon entry of Judgment consistent with this Agreement, the Court shall maintain jurisdiction for settlement purposes as it would in a class action settlement pursuant to California Rule of Court (CRC) 3.769(h). 4.11. No Right to Object or Opt Out. Because this Settlement is not a class action settlement, but rather a PAGA settlement involving claims on behalf of the State of California, no person can (a) object to the settlement after the Court’s Approval Order is made, or (b) opt out from being covered by PAGA Released Claims at any time before or after the Approval Order is made. 4.12. The Parties agree to work cooperatively to comply with the notice requirements to the LWDA pursuant to Labor Code sections 2699(l)(2) and 2699(l)(3). 4.13. Miscellaneous Provisions. 4.13.1. Neither the acceptance nor the performance by Comcast of the terms of this Agreement, nor any of the related negotiations or proceedings, is or shall be claimed to be, construed as, or deemed to be, an admission by Comcast of the truth of any of the allegations in the Complaint, the appropriateness of the PAGA representative claim or action, the validity of any of the claims that were or could have been asserted by Plaintiffs, any PAGA Settlement Employee, and/or the State of California. This Settlement does not reflect or suggest any liability or wrongdoing on the part of Comcast. Comcast specifically disclaims any liability, culpability, negligence, or wrongdoing. Each of the Parties has entered into this Agreement with the intention to avoid further disputes and litigation with the attendant inconvenience, expenses, and contingencies. 4.13.2. The Parties agree to cooperate fully with one another to accomplish and implement the terms of this Settlement. Such cooperation shall include, but not be limited to, execution of such other documents and the taking of such other action as may reasonably be necessary to fulfill the terms of this Settlement. The Parties to this Settlement shall exercise reasonable efforts, including all efforts contemplated by this Settlement and any other efforts that may become necessary by Court order, or otherwise, to effectuate this Settlement and the terms set forth herein. 15 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 4.13.3. Enforcement And Continuing Jurisdiction Of The Court: Pursuant to California Code of Civil Procedure section 664.6, the Court shall retain continuing jurisdiction over this Action and over all Parties, to the fullest extent necessary to enforce and effectuate the terms and intent of the Settlement and this Agreement. 4.13.4. Neither Plaintiffs nor Plaintiffs’ counsel (and any attorneys or staff associated with their practices) shall provide any information to the press or third-parties (including in response to any inquiries from the press or third-parties) or otherwise discuss or publicize or cause to be publicized (either through press releases, website postings, social media postings, etc.) anything about this Action or the Settlement (including but not limited to the Enhancement Payments or the amount thereof). Plaintiffs and Plaintiffs’ counsel affirmatively represent that they have not provided any information to the press or third-parties (other than to PAGA Settlement Employees in response to any inquiries) or otherwise discussed or publicized or caused to be publicized anything about this Action or the Settlement prior to signing this Agreement. Nothing in this paragraph shall prevent Plaintiffs’ counsel from communicating with the PAGA Settlement Employees and fulfilling their ethical responsibilities under the Settlement. 4.13.5. Neither Plaintiffs’ Counsel nor any other attorneys acting for, formerly acting for, or purporting to act for, Plaintiffs, may recover or seek to recover any amounts for fees, costs, or disbursements from Comcast or the Maximum Settlement Amount except as expressly provided herein. 4.13.6. Plaintiffs represent and warrant that they have the right and exclusive authority to sign this Agreement and that they have carefully read and understand the full contents of this Agreement and are voluntarily entering into this Agreement after having received legal advice from Plaintiffs’ Counsel with respect to the advisability of making the Settlement provided for herein and the advisability of singing this Agreement. 4.13.7. Plaintiffs represent and warrant that they have not assigned or transferred or purported to assign or transfer to any person or entity, any claim or portion thereof, or interest therein, which is or may be subject to this Agreement. 16 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 4.13.8. This Agreement sets forth the entire agreement between the Parties and fully supersedes any and all prior and/or supplemental understandings, whether written or oral, between the Parties concerning the subject matter of this Agreement. Any modification to this Agreement must be in writing and signed by Plaintiffs or Plaintiffs’ Counsel, and the one hand, and by an authorized officer of Comcast or by Comcast’s Counsel, on the other hand. This Agreement may not be changed, altered, or modified, except in writing signed by the Parties or their counsel and approved by the Court. 4.13.9. This Agreement shall be binding upon and inure to the benefit of the Parties, and to their respective heirs, trustees, executors, administrators, successors, and assigns. 4.13.10. This Agreement shall become effective upon its execution by all of the undersigned and may be executed in counterparts which shall have the same force and effect as if all signatories had signed the same instrument. 4.13.11. Paragraph titles or captions contained in the Agreement are inserted as a matter of convenience and for reference, and in no way define, limit, extend, or describe the scope of this Agreement, or any provision thereof. 4.13.12. This Agreement shall be construed and interpreted as if all of its language were prepared jointly by the Parties. No language in this Agreement shall be construed against a Party on the ground that such Party drafted or proposed that language. 4.13.13. Except for the purposes of effectuating and enforcing the terms of this Agreement, which include barring claims that are released pursuant to this Agreement, neither this Agreement nor any of its terms nor the settlement itself shall be: (a) construed as, offered, or admitted in evidence as, received as, or deemed to be evidence for any purpose adverse to Comcast and/or any of the Releasees, including but not limited to, evidence of a presumption, concession, indication, or admission by any of the Releasees of any liability, fault, wrongdoing, omission, concession, or damage, or (b) disclosed, referred to, or offered in evidence against Comcast and/or any of the Releasees in any other civil, criminal, or administrative action or proceeding. 17 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 4.13.14. The Parties’ rights and obligations under this Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of California. California law shall govern the interpretation of this Agreement even if a choice of law analysis under state or federal law would dictate that another forum’s law be applied. IN WITNESS WHEREOF, this PAGA Settlement Agreement is executed by the Parties and their duly authorized attorneys, as of the day and year set forth below. Dated: September ___, 2020 PLAINTIFF ELTER MACKEY By Plaintiff Elter Mackey Dated: September ___, 2020 PLAINTIFF TIERRA LUSTER By Plaintiff Tierra Luster Dated: September ___, 2020 COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC By Name: Title: Dated: September ___, 2020 MARLIN & SALTZMAN By Stan Saltzman Cody Kennedy Attorneys for Plaintiffs Elter Mackey and Tierra Luster Dated: September ___, 2020 MORGAN, LEWIS & BOCKIUS LLP By Daryl S. Landy Andrew P. Frederick Attorneys for Defendant Comcast Cable Communications Management, LLC 24 Doc ID: 8371bf14ad827a8f8b3bf86bcadcd70648693f9b 17 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 4.13.14. The Parties’ rights and obligations under this Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of California. California law shall govern the interpretation of this Agreement even if a choice of law analysis under state or federal law would dictate that another forum’s law be applied. IN WITNESS WHEREOF, this PAGA Settlement Agreement is executed by the Parties and their duly authorized attorneys, as of the day and year set forth below. Dated: September ___, 2020 PLAINTIFF ELTER MACKEY By Plaintiff Elter Mackey Dated: September ___, 2020 PLAINTIFF TIERRA LUSTER By Plaintiff Tierra Luster Dated: September ___, 2020 COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC By Name: Title: Dated: September ___, 2020 MARLIN & SALTZMAN By Stan Saltzman Cody Kennedy Attorneys for Plaintiffs Elter Mackey and Tierra Luster Dated: September ___, 2020 MORGAN, LEWIS & BOCKIUS LLP By Daryl S. Landy Andrew P. Frederick Attorneys for Defendant Comcast Cable Communications Management, LLC 24 Doc ID: 8f151dead8967c51c847766520bf49863d0e7b4d 17 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 4.13.14. The Parties’ rights and obligations under this Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of California. California law shall govern the interpretation of this Agreement even if a choice of law analysis under state or federal law would dictate that another forum’s law be applied. IN WITNESS WHEREOF, this PAGA Settlement Agreement is executed by the Parties and their duly authorized attorneys, as of the day and year set forth below. Dated: September ___, 2020 PLAINTIFF ELTER MACKEY By Plaintiff Elter Mackey Dated: September ___, 2020 PLAINTIFF TIERRA LUSTER By Plaintiff Tierra Luster Dated: September ___, 2020 COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC By Name: Title: Dated: September ___, 2020 MARLIN & SALTZMAN By Stan Saltzman Cody Kennedy Attorneys for Plaintiffs Elter Mackey and Tierra Luster Dated: September ___, 2020 MORGAN, LEWIS & BOCKIUS LLP By Daryl S. Landy Andrew P. Frederick Attorneys for Defendant Comcast Cable Communications Management, LLC 17 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 4.13.14. The Parties’ rights and obligations under this Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of California. California law shall govern the interpretation of this Agreement even if a choice of law analysis under state or federal law would dictate that another forum’s law be applied. IN WITNESS WHEREOF, this PAGA Settlement Agreement is executed by the Parties and their duly authorized attorneys, as of the day and year set forth below. Dated: September ___, 2020 PLAINTIFF ELTER MACKEY By Plaintiff Elter Mackey Dated: September ___, 2020 PLAINTIFF TIERRA LUSTER By Plaintiff Tierra Luster Dated: September ___, 2020 COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC By Name: Title: Dated: September ___, 2020 MARLIN & SALTZMAN By Stan Saltzman Cody Kennedy Attorneys for Plaintiffs Elter Mackey and Tierra Luster Dated: September ___, 2020 MORGAN, LEWIS & BOCKIUS LLP By Daryl S. Landy Andrew P. Frederick Attorneys for Defendant Comcast Cable Communications Management, LLC 25 18 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO Exhibit A <> <> <> <
> <> Re: Settlement Payment From Mackey/Luster v. Comcast Cable Lawsuit Dear <> <>: Enclosed is your settlement payment from the settlement of the lawsuit entitled Mackey and Luster et al. v. Comcast Cable Communications Management, LLC, San Francisco County Superior Court, Case No. CGC-19-574728. The settlement includes all current and former non- exempt retail sales employees who worked for Comcast Cable Communications Management, LLC (“Comcast”) in California at any point from January 4, 2018, through ___________ [insert Approval Date]. You have been identified as a current or former Comcast employee to whom this settlement applies and who is included in this settlement. Enclosed is a check made out to you. The check represents your share of the settlement for PAGA penalties ($__________). “PAGA penalties” are civil penalties recovered by Plaintiffs on behalf of the government. They are separate from unpaid wages and/or other remedies available at law, which you may be recover in an individual action. This lawsuit was filed against Comcast pursuant to the California Labor Code Private Attorneys General Act of 2004, Cal. Lab. Code § 2698 et seq. (called “PAGA”). The lawsuit was brought on behalf of the State of California and all similarly situated “aggrieved employees” of Comcast for civil penalties for alleged wage and hour violations, including but not limited to the alleged failure to pay minimum, straight time, and overtime wages, provide compliant meal periods and rest breaks, pay meal and rest period premium payments, provide compliant itemized and accurate wage statements, timely and fully pay all wages during employment and upon termination, maintain accurate employment records, reimburse necessary business expenses, provide written commission rates, and provide suitable seating. Comcast denies that it has done anything wrong or that it owes any penalties. The parties agreed to resolve the case for a total payment of $3,250,000, and as part of that settlement, Comcast agreed to pay a certain amount of money categorized as PAGA penalties. Under the PAGA statute, the penalties paid in this settlement get divided between the State (75%) and the employees (25%) after deducting for court approved attorney fees and costs. As a result of this settlement, the State of California’s and your ability to seek civil penalties recoverable under the PAGA for the claims that were asserted or could have been asserted in the lawsuit have been released. However, any non-PAGA claims, including individual claims that you are entitled to personally bring against Comcast, are not subject to the settlement, and have not been released. If you have any questions, you can contact the settlement administrator (whose contact information is at the top of this letter). 19 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO Sincerely, [Administrator] x EXHIBIT B to Declaration of Stanley D. Saltzman Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO MARLIN & SALTZMAN, LLP STANLEY D. SALTZMAN (SBN 090058) CODY R. KENNEDY (SBN 296061) BRADLEY R. FAGNANI (SBN 261330) 29800 Agoura Road, Suite 210 Agoura Hills, California, 91301 Telephone: +1.818.991.8080 Facsimile: +1.818.991.8081 ssaltzman@marlinsaltzman.com ckennedy@marlinsaltzman.com bfagnani@marlinsaltzman.com Attorneys for Plaintiffs ELTER MACKEY and TIERRA LUSTER MORGAN, LEWIS & BOCKIUS LLP DARYL S. LANDY (SBN 136288) 600 Anton Boulevard, Suite 1800 Costa Mesa, California 92626-7653 Telephone: +1.714.830.0600 Facsimile: +1.714.830.0700 daryl.landy@morganlewis.com ANDREW P. FREDERICK (SBN 284832) One Market, Spear Street Tower San Francisco, California 94105-1126 Telephone: +1.415.442.1000 Facsimile: +1.415.442.1001 andrew.frederick@morganlewis.com Attorneys for Defendant COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO ELTER MACKEY, TIERRA LUSTER, on behalf of themselves and for all other current and former aggrieved employees, Plaintiffs, vs. COMCAST CABLE COMMUNICATIONS MANAGEMENT LLC, a Delaware Limited Liability Company; and DOES 1 through 100, inclusive, Defendants. Case No. CGC-19-574728 AMENDED LABOR CODE PRIVATE ATTORNEYS GENERAL ACT SETTLEMENT AGREEMENT AND RELEASE 1 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO This Amended Labor Code Private Attorneys General Act (“PAGA”) Settlement Agreement and Release (“Agreement”) is made by and between Plaintiffs Elter Mackey and Tierra Luster (“Plaintiffs”), on behalf of themselves and as the authorized proxies and agents for the State of California, and Defendant Comcast Cable Communications Management, LLC (“Comcast” or “Defendant”) (collectively, the “Parties”). 1. THE CONDITIONAL NATURE OF THIS AGREEMENT 1.1. This Agreement and all associated exhibit(s) or attachment(s) are made for the purpose of settling the PAGA representative claims, as described herein, in the above-captioned action. This Agreement and the settlement it evidences are made in compromise of disputed claims. Because this action has been settled on a PAGA representative basis, the “superior court shall review and approve any settlement of any civil action filed pursuant to [Labor Code §§ 2698 et seq.].” Cal. Lab. Code § 2699(l)(2). Accordingly, the Parties enter into this Agreement and associated settlement on a conditional basis. If the Court denies Plaintiff’s Motion for Approval of this settlement with prejudice and Judgment and/or the Effective Date does not occur, this Agreement shall be deemed null and void ab initio, it shall be of no force or effect whatsoever, it shall not be referred to or utilized for any purpose whatsoever, and the negotiation of the Agreement shall remain subject to the provisions of California Evidence Code section 1152 and any other analogous rules of evidence that are applicable. 1.2. Comcast denies all the allegations asserted in the Complaint and it also denies any claims for relief, including claims for civil penalties, attorneys’ fees, and costs of suit. Comcast has agreed to resolve the Action through this Agreement, but to the extent this Agreement is not approved or the Effective Date does not occur, Comcast does not waive, but rather expressly reserves, all rights to challenge all such claims and allegations in the Action upon all procedural and factual grounds, as well as to assert any and all other potential defenses or privileges. Plaintiffs and Plaintiffs’ Counsel agree that Comcast retains and reserves these rights, and agree not to argue or present any argument, and hereby waive any argument, that based on this Agreement, Comcast cannot assert any and all potential defenses and privileges if this Action were to proceed. 2. DEFINITIONS 2 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO The following terms, when used in this Agreement, shall have the following meanings: 2.1. “Action” means the above-captioned action entitled Elter Mackey, et al. v. Comcast Cable Communications Management, LLC, San Francisco County Superior Court Case No. CGC-19-574728 (filed March 22, 2019). 2.2. “Approval Date” means the date that the Superior Court enters the Approval Order. 2.3. “Approval Order” means the Superior Court’s Order approving this Labor Code Private Attorneys General Act Settlement Agreement and Release. 2.4. “Complaint” means the Complaint filed on March 22, 2019. 2.5. “Court” means the San Francisco County Superior Court. 2.6. “Database” means information in electronic form provided by Comcast to the Settlement Administrator (as defined below) that for each PAGA Settlement Employee includes his or her name, last-known address, social security number, and the total number of Pay Periods Worked by the PAGA Settlement Employee for Comcast in California from January 4, 2018 through the Approval Date. 2.7. “Comcast’s Counsel” means Morgan, Lewis & Bockius LLP. 2.8. “Effective Date” means the latest of: (i) the Approval Date if no objection is made or filed to the settlement; (ii) if an objection is made or filed and the Approval Date occurs, but no appeal is filed, the expiration of the deadline for any appeals; and (iii) if an objection is made or filed and the Approval Date occurs, and an appeal is filed, the date that an appeal is resolved resulting in a final court order approving this settlement. 2.9. “Enhancement Payment” means the amount approved by the Court to be paid to the PAGA Representatives in recognition of the PAGA Representatives’ efforts in coming forward as PAGA Representatives and participating in the Action. 2.10. “Funding Date” means forty (40) calendar days after Comcast Counsel’s receipt of the Approval Order, except that Comcast will have no obligation to fund the settlement if the Effective Date has not occurred. 2.11. “Judgment” means the judgment to be executed and entered by the Court pursuant to this Agreement. 3 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 2.12. “Maximum Settlement Amount” is the sum of Three Million Two Hundred Fifty Thousand Dollars and Zero Cents ($3,250,000.00), which represents the maximum amount payable pursuant to this settlement by Comcast, and which includes the PAGA Payment (as defined below), Plaintiffs’ Counsel’s attorneys’ fees (not to exceed 33 1/3 percent of the Maximum Settlement Amount) and costs, Settlement Administration Costs, and Enhancement Payments to the PAGA Representatives. 2.13. “PAGA” means the California Labor Code Private Attorneys General Act of 2004. Cal. Lab. Code §§ 2698 et seq. 2.14. “PAGA Payment” means the portion of the Maximum Settlement Amount (after excluding Plaintiffs’ Counsel’s attorneys’ fees and costs, Settlement Administration Costs, and the Enhancement Payments to the PAGA Representatives) that represents the amount payable in this settlement for PAGA civil penalties, 75% of which will be paid to the LWDA and 25% of which will be paid to the PAGA Settlement Employees. All PAGA Settlement Employees will receive a monetary payment from the PAGA Payment. 2.15. “PAGA Release Period” means the period from January 4, 2018 through the Approval Date. 2.16. “PAGA Released Claims” shall mean any and all claims against Releasees that have been or could have been asserted under the PAGA based upon alleged violations of the California Labor Code, the Industrial Welfare Commission Wage Orders (“Wage Orders”), and any other provision of law as alleged in the Complaint and/or the Labor Workforce Development Agency (“LWDA”) Letter sent on behalf of Plaintiffs. This release includes, but is not limited to, claims based on meal periods, rest breaks, off-the-clock work, minimum wage, straight time wages, overtime, double time, unlawful deductions, premium pay, pay stubs/wage statements, final pay, timing of pay, record keeping/retention, expense reimbursement, commission rates/plans, and suitable seating, whether known or unknown, and whether anticipated or unanticipated. This release applies to claims that accrue through the Approval Date, whether based on the Wage Orders, including, but not limited to, Sections 3, 4, 7, 11, 12, 14, and 20, the California Labor Code, including, but not limited to, Sections 201, 202, 203, 204, 210, 223, 226, 226.3, 226.4, 226.7, 510, 4 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 512, 558, 1174, 1174.5, 1193.5, 1193.6, 1194, 1194.2, 1194.5, 1197, 1197.1, 1198, 2698-2699, 2751, 2802, and any other provision of law, as well as all associated claims for penalties, attorneys’ fees, and costs and interest. Plaintiffs release these claims in their representative capacity as proxies for the LWDA and as private attorney general “aggrieved employees” acting on behalf of themselves and the PAGA Settlement Employees. This release shall not be construed as a release of any PAGA Settlement Employee’s underlying Labor Code or Wage Order claims. 2.17. “PAGA Representatives” means Plaintiffs Elter Mackey and Tierra Luster. 2.18. “PAGA Representative Released Claims” means Plaintiffs Elter Mackey and Tierra Luster’s additional release of rights and claims upon the Effective Date[ in consideration of Comcast’s promises and agreements set forth in this Settlement Agreement], as follows: Plaintiffs Elter Mackey and Tierra Luster fully release the Releasees from any and all PAGA Released Claims and also generally release and discharge the Releasees from all claims, actions, causes of action, lawsuits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, bonuses, controversies, agreements, promises, claims, charges, complaints and demands whatsoever, whether in law or equity, known or unknown, which Plaintiffs or their heirs, executors, administrators, successors, and assigns, may now have or hereafter later determine that they have or had upon, or by reason of, any cause or thing whatsoever relating to any matter, including their employment or termination of employment, against Comcast and/or other Releasees. This includes, but is not limited to, claims arising under the Americans With Disabilities Act, the National Labor Relations Act, the Fair Labor Standards Act (“FLSA”), the Equal Pay Act, the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq., as amended, (including but not limited to, breach of fiduciary duty and equitable claims to be brought under § 1132(a)(3)), the Worker Adjustment and Retraining Notification Act, as amended, Title VII of the Civil Rights Act of 1964, the Rehabilitation Act of 1973, the Civil Rights Acts of 1866, 1871 and 1991, including Section 1981 of the Civil Rights Act, the Family and Medical Leave Act, the California Fair Employment and Housing Act, the California Family Rights Act, PAGA, California Business and Professions Code §§ 17200, et seq., the California Labor Code, and/or any other federal, state or local human rights, civil rights, wage-hour, pension or labor law, 5 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO rule, statute, regulation, constitution or ordinance and/or public policy, contract or tort law, or any claim of retaliation under such laws, or any claim of breach of any contract (whether express, oral, written or implied from any source), or any claim of intentional or negligent infliction of emotional distress, tortious interference with contractual relations, wrongful or abusive or constructive discharge, defamation, prima facie tort, fraud, negligence, loss of consortium, malpractice, breach of duty of care, breach of fiduciary duty, or any action similar thereto against the Releasees, including any claim for attorneys’ fees, expenses or costs based upon any conduct from the beginning of time up to and including the Approval Date. This General Release specifically includes any and all claims, demands, obligations and/or causes of action for damages, restitution, penalties, interest, and attorneys’ fees and costs relating to or in any way connected with the matters referred to herein, whether or not known or suspected to exist, and whether or not specifically or particularly described herein. Specifically, Plaintiffs waive all rights and benefits afforded by California Civil Code Section 1542, which provides: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. Plaintiffs do not waive any rights with respect to, or release the Releasees from, any claims for California Workers’ Compensation benefits (except that Plaintiffs hereby release and waive any claims that, as a result of their termination, they are entitled to additional benefits or payments); any claim for unemployment compensation benefits; any claim that cannot be released by private contract; or any claim for breach of the Settlement Agreement’s terms. Plaintiffs’ general release of claims will be valid upon the Effective Date. 2.19. “PAGA Settlement Employees” shall mean and include all current and former non-exempt retail sales employees who worked for Comcast in California at any point from January 4, 2018, through and including the Approval Date. 2.20. “Plaintiffs’ Counsel” means Marlin & Saltzman LLP. 2.21. “Releasees” means Defendant Comcast Cable Communications Management, LLC, and its parents (including Comcast Corporation), subsidiaries, affiliates, owners, predecessors, 6 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO successors, and associated organizations, past and present, and each of their respective trustees, directors, officers, agents, joint employers, attorneys, managing agents, employees, contractors, insurers, benefit plans, representatives, assigns, all persons acting by, through, under, or in concert with any of them, and/or all persons acting on behalf of them. 2.22. “Settlement Administration Costs” shall mean the amount to be paid to the Settlement Administrator for the cost of administering this settlement, which is currently a fixed fee of $11,000.00. 2.23. “Settlement Administrator” shall be the CPT Group Inc. 3. RECITALS 3.1. Comcast employed Plaintiffs as non-exempt retail sales employees in California. 3.2. On January 4, 2019, Plaintiffs gave written notice to the LWDA of the provisions of the Labor Code that Comcast allegedly violated (“the LWDA Letter”). The LWDA did not respond to the LWDA Letter and did not notify Plaintiffs or Comcast that it intended to investigate Plaintiffs’ allegations. 3.3. On March 22, 2019, Plaintiffs filed a representative action complaint (the “Complaint,” as defined in section 2.4, above) against Comcast for recovery of civil penalties under the PAGA for Comcast’s purported violations of Labor Code Sections 201-204, 223, 226, 226.3, 226.4, 226.7, 510, 512, 558, 1174, 1174.5, 1193.5, 1193.6, 1194, 1194.5, 1198, 2751, 2802, 2698-2699, and applicable provisions of the Wage Orders for the alleged failure to pay all wages owed (minimum, regular, and overtime), failure to state commissions in a signed contract, failure to set forth the method by which the commissions are computed and paid, failure to provide accurate and itemized wage statements, failure to provide meal and rest periods, failure to reimburse required business expenses, failure to pay all wages timely and upon termination, failure to maintain required business / employment records, and failure to provide suitable seating. Compl., ¶¶ 1, 6, 16. 3.4. Comcast had denied and continues to deny all of the allegations in the Complaint, and specifically denies that it has violated any section of the Labor Code or IWC Wage Orders or committed any misconduct, statutory, or regulatory violation, wrongdoing, or any other actionable 7 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO conduct of any kind. Comcast further denies that this action may be maintained as a representative action on behalf of any employees of Comcast. 3.5. The Parties understand, acknowledge, and agree that this Agreement constitutes a compromise of the representative PAGA claims and that it is the desire and intention of the Parties to reach a final and complete resolution of the representative PAGA claims (on behalf of the State of California) that were asserted or that could have been asserted against Comcast based upon the allegations in the PAGA notice letter and/or the Complaint. The Parties further acknowledge that this Agreement is a compromise of disputed claims and that nothing in this Agreement shall be construed as an admission by Comcast of liability. 3.6. The Parties believe and agree that this Agreement provides for a fair, adequate, and reasonable resolution of the PAGA representative claims, given the strengths and weaknesses of Plaintiffs’ claims, Comcast’s defenses to any liability at all, and the risk that the Court would significantly reduce any penalties that could be awarded under Labor Code section 2699(e)(2). The Parties have arrived at this settlement after extensive, arms-length negotiations, that took into account all relevant factors, present and potential. 3.7. Under California law, the State of California may assess and collect civil penalties from employers for violations of certain provisions of the Labor Code. See Cal. Lab. Code §§ 2698 et seq. Under PAGA, however, if an “aggrieved employee” “give[s] written notice by online filing with the Labor and Workforce Development Agency and by certified mail to the employer of the specific provisions of [the Labor Code] alleged to have been violated,” and the State thereafter decides not to investigate, the employee may, “as an alternative” to enforcement by the State, act as a proxy or agent of the state’s labor law enforcement agencies and bring a civil action under PAGA to recover civil penalties “on behalf of himself or herself and other current or former employees.” Cal. Lab. Code §§ 2699(a), 2699.3(a)(1)(A). “[C]ivil penalties recovered by aggrieved employees shall be distributed as follows: 75 percent to the Labor and Workforce Development Agency . . . and 25 percent to the aggrieved employees.” Cal. Lab. Code § 2699(i). 4. OPERATIVE TERMS OF THE PAGA SETTLEMENT The Parties to the Action agree as follows: 8 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 4.1. Maximum Settlement Amount. Comcast shall pay a Maximum Settlement Amount of Three Million Two Hundred Fifty Thousand Dollars and Zero Cents ($3,250,000.00) to resolve the representative PAGA claims that were asserted or that could have been asserted against Comcast in the Complaint. The Maximum Settlement Amount includes the PAGA Payment, Plaintiffs’ Counsel’s attorneys’ fees (not to exceed 33 1/3 percent of the Maximum Settlement Amount) and costs, costs of settlement administration by a third-party settlement administrator, and Enhancement Payments of up to $25,000 each to the PAGA Representatives. Under no circumstances shall Comcast be obligated to pay any amount in excess of the Maximum Settlement Amount. 4.2. Settlement Administrator. 4.2.1. The Settlement Administrator shall be the CPT Group, Inc. and the Settlement Administration Costs shall be a fixed amount of $11,000. The Settlement Administration Costs shall include: all costs of administering the Settlement, including, but not limited to, all tax document preparation, custodial fees, and accounting fees incurred by the Settlement Administrator; all costs and fees associated with preparing, issuing and mailing any and all communications to PAGA Settlement Employees; all costs and fees associated with issuing the individual PAGA Payments and the payment to the State of California LWDA; and all costs and fees associated with issuing IRS Form 1099s (to the extent any are required by applicable law) relating to payments made under the settlement; all costs and fees associated with preparing any tax returns and any other filings required by any governmental taxing authority or agency (to the extent any are required by applicable law); all costs and fees associated with preparing any other notices, reports, or filings to be prepared in the course of administering the settlement, and any other costs and fees incurred and/or charged by the Settlement Administrator in connection with the execution of its duties under this Agreement. 4.2.2. The actions of the Settlement Administrator shall be governed by the terms of this Agreement, any Orders from the Court, and any agreement by counsel of record regarding communications with the Settlement Administrator. 9 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 4.2.3. In the event that either Comcast’s Counsel or Plaintiffs’ Counsel takes the position that the Settlement Administrator is not acting in accordance with the terms of the Agreement, such party shall meet and confer first with opposing counsel and/or, if necessary, with the Settlement Administrator or the Court to attempt to resolve the issue. 4.3. Calculation of Individual PAGA Payments. 4.3.1. Each PAGA Settlement Employee, including Plaintiffs, will be entitled to receive an Individual PAGA Payment which shall be calculated as follows: a. Based on its business records, Comcast will calculate, and provide to the Settlement Administrator, the number of pay periods worked in California by each PAGA Settlement Employee from January 4, 2018, through the Approval Date (“Pay Periods Worked”). b. The aggregate total number of Pay Periods Worked by PAGA Settlement Employees will be deemed the “Total Pay Periods.” c. The respective share of the PAGA payment for each PAGA Settlement Employee will be calculated by dividing their Pay Periods Worked by the Total Pay Periods. These calculations will result in each PAGA Settlement Employee’s “Pay Period Percentage.” d. Each PAGA Settlement Employee will be paid from the 25% of the PAGA Payment allocated to the PAGA Settlement Employees based on their own Pay Period Percentage according to the following formula: 25% of the PAGA Payment x individual employee’s Pay Period Percentage = Individual PAGA Payment. 4.3.2. Because the Individual PAGA Payment is a payment in compromise and settlement of a claim for alleged civil penalties, the Individual PAGA Payment will be treated as non-wage income with no tax withholdings to be made, and will be reported, if required by applicable tax laws, by the Settlement Administrator on IRS Form 1099s to the respective PAGA Settlement Employee and applicable governmental authorities. The Settlement Administrator will issue an IRS Form 1099 to Plaintiffs’ Counsel and applicable governmental authorities for the payment of attorneys’ fees and costs in the amount approved by the Court. Plaintiffs and Plaintiffs’ Counsel each agree to hold Comcast and the Releasees harmless from and against any damage or 10 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO penalty incurred by Comcast as a result of any taxing authority assessing any tax or penalty upon Comcast as a consequence of any tax being due and unpaid on each of their portions of the Maximum Settlement Amount. 4.4. Enhancement Payments. Subject to Court approval, the Enhancement Payments to the PAGA Representatives Elter Mackey and Tierra Luster will be paid in an amount not to exceed Twenty-Five Thousand Dollars and Zero Cents ($25,000.00) each from the Maximum Settlement Amount for the PAGA Representatives’ service and assistance in this Action. The Enhancement Payment to the PAGA Representatives will be in addition to their Individual PAGA Payments. Because the Enhancement Payments represent payment to the PAGA Representatives for service in this Action, payroll taxes will not be withheld from the Enhancement Payments. The Settlement Administrator will report the Enhancement Payments on an IRS Form 1099, and any other required tax forms, and will provide the form(s) to the PAGA Representatives and to the pertinent taxing authorities as required by law. The PAGA Representatives assume full responsibility for paying all taxes, federal and state, if any, due as a result of the Enhancement Payment and agree to indemnify Comcast and the Releasees for any such taxes owed by them. An award by the Court of less than the requested Enhancement Payments (or no Enhancement Payments at all) shall not be a basis upon which Plaintiffs or Plaintiffs’ Counsel may void this Agreement, and any portion of the requested Enhancement Payments not awarded shall become part of the PAGA Payment. 4.5. Releases 4.5.1. Upon the Effective Date, the State of California, the PAGA Representatives, and each PAGA Settlement Employee shall be deemed to have fully, finally, and forever released the Releasees from the PAGA Released Claims for and during the PAGA Release Period. 4.5.2. Upon the Effective Date, the PAGA Representatives, Plaintiffs Elter Mackey and Tierra Luster, shall be deemed to have fully, finally, and forever released Releasees from all PAGA Representative Released Claims through the Effective Date. 4.5.3. In addition, the PAGA Representatives, Plaintiffs Elter Mackey and Tierra Luster, shall be deemed to have expressly waived and relinquished, to the fullest extent permitted by law, the provisions, rights, and benefits they may otherwise have had relating to the PAGA 11 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO Representative Released Claims pursuant to Section 1542 of the California Civil Code, which provides as follows: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. 4.6. Settlement Payment Procedures. 4.6.1. No later than fifteen (15) calendar days after the Effective Date, the Settlement Administrator shall send to Comcast’s counsel electronic wiring instructions for Comcast to fund the Maximum Settlement Amount. 4.6.2. No later than thirty (30) calendar days after Comcast Counsel’s receipt of the Approval Order, provided that the Effective Date has occurred, Comcast will send the Database to the Settlement Administrator. The Settlement Administrator shall treat the information in the Database as confidential at all times and shall use the information solely to manage the notice and payment process described herein, shall not disclose the information to anyone (including Plaintiffs’ counsel), except to applicable taxing authorities if required, or pursuant to express written authorization of Comcast, the individual in question, or by order of the Court. 4.6.3. No later than forty (40) calendar days after Comcast Counsel’s receipt of the Approval Order, provided that the Effective Date has occurred, Comcast will wire to the Settlement Administrator a payment in the amount of Three Million Two Hundred Fifty Thousand Dollars and Zero Cents ($3,250,000.00) to fund the PAGA Settlement Fund. 4.6.4. Because this is a PAGA settlement and not a class action settlement, and because there is no claims procedure and no ability to “opt out,” there will be no prior notice to the PAGA Settlement Employees advising them of the PAGA settlement or any procedure by which the PAGA Settlement Employees must submit claims in order to receive a settlement payment. Fourteen (14) calendar days following the Settlement Administrator’s receipt of the wired settlement funds from Comcast, the Settlement Administrator shall mail a Notice (substantially in 12 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO the form attached hereto as Exhibit A) and a settlement check to each PAGA Settlement Employee in the amount of their respective Individual PAGA Payment. 4.6.5. Prior to mailing the Notice and settlement check, the Settlement Administrator shall check the addresses provided in the Database using the National Change of Address database and shall update any addresses accordingly. Should any of the Notices be returned as undeliverable, the Settlement Administrator will conduct a search for a more current address (by skip trace or other reasonable method) and re-mail the Notice and settlement check to the more current address, if any. 4.6.6. Expiration of Settlement Checks. Individual PAGA Payment checks issued to PAGA Settlement Employees pursuant to this Agreement will expire 180 calendar days from the date they are issued by the Settlement Administrator. After the 180-day period, the Settlement Administrator shall remit any unclaimed funds to the State of California Unclaimed Wages Fund pursuant to the then-applicable instructions of the California State Controller. 4.7. Attorneys’ Fees and Costs. The Settlement Administrator shall pay to Plaintiffs’ Counsel from the Maximum Settlement Amount the amount of attorneys’ fees (not to exceed 33 1/3 percent of the Maximum Settlement Amount) and costs awarded by the Court. An award by the Court of less than the amount of requested attorneys’ fees and/or costs shall not be a basis upon which Plaintiffs or Plaintiffs’ Counsel may void this Agreement, and any amounts of requested fees or costs not awarded shall become part of the PAGA Payment. The Settlement Administrator will issue an IRS Form 1099 to Plaintiffs’ Counsel as required by IRS regulations. The Settlement Administrator shall pay the amount awarded by the Court to Plaintiffs’ Counsel no later than fourteen calendar (14) days following the Funding Date. This payment shall satisfy any claims for attorneys’ fees and costs that Plaintiffs’ Counsel may assert in connection with this litigation and settlement. This payment shall therefore cover all past and future fees and costs incurred to prosecute, settle, and administer this action, including obtaining approval of the settlement and [securing dismissals required by]entry of judgment pursuant to the settlement. Plaintiffs and Plaintiffs’ Counsel represent that they are not aware of and have no knowledge of any liens filed or placed on this Action by any person. 13 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 4.8. Non-Reversionary. This settlement is non-reversionary. Any portion(s) of the requested Enhancement Payments to the PAGA Representatives or the requested attorneys’ fees or costs not awarded by the Court shall become part of the PAGA Payment. 4.9. Impact of Non-Approval by Court. Should the Court not approve the settlement, the Parties shall meet and confer to make reasonable efforts to address any issues raised by the Court in order to obtain the Court’s approval, except that Comcast will not be required under any circumstances to increase the Maximum Settlement Amount. If the Parties cannot obtain approval from the Court, or if the Effective Date does not occur, the Parties shall be restored to their litigation positions as of April 24, 2020, and this Agreement shall be deemed null and void, shall be of no force or effect whatsoever, and shall not be referred to or used in this or any other action. 4.10. Motion for Approval & Proposed Judgment. Pursuant to the Court’s direction on May 5, 2020, the Parties will file a Motion for Approval of the PAGA settlement (“Motion”). Plaintiffs’ Counsel will prepare the Motion for Approval of this Agreement and will provide Comcast’s Counsel with at least ten (10) days to review and provide feedback on the Motion before the Motion is filed. The Motion will be subject to Comcast’s review and approval. The Motion will include a proposed approval order[,] and proposed judgment[, and dismissal of the Action with prejudice consistent with the terms of this Settlement]. Plaintiffs’ counsel will send a copy of this Agreement and the Motion to the LWDA on the same date they file these documents with the Court. Neither Plaintiffs nor Plaintiffs’ Counsel can rescind or back out of the Settlement if the Court does not approve the Motion without prejudice; to the contrary, this Settlement shall remain in effect if the Court does not approve the Motion without prejudice. Plaintiffs and Plaintiffs’ Counsel further agree to take all necessary steps to seek approval of the Settlement if the Court denies approval without prejudice. Upon entry of Judgment consistent with this Agreement, the Court shall maintain jurisdiction for settlement purposes as it would in a class action settlement pursuant to California Rule of Court (CRC) 3.769(h). 4.11. No Right to Object or Opt Out. Because this Settlement is not a class action settlement, but rather a PAGA settlement involving claims on behalf of the State of California, no 14 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO person can (a) object to the settlement after the Court’s Approval Order is made, or (b) opt out from being covered by PAGA Released Claims at any time before or after the Approval Order is made. 4.12. The Parties agree to work cooperatively to comply with the notice requirements to the LWDA pursuant to Labor Code sections 2699(l)(2) and 2699(l)(3). 4.13. Miscellaneous Provisions. 4.13.1. Neither the acceptance nor the performance by Comcast of the terms of this Agreement, nor any of the related negotiations or proceedings, is or shall be claimed to be, construed as, or deemed to be, an admission by Comcast of the truth of any of the allegations in the Complaint, the appropriateness of the PAGA representative claim or action, the validity of any of the claims that were or could have been asserted by Plaintiffs, any PAGA Settlement Employee, and/or the State of California. This Settlement does not reflect or suggest any liability or wrongdoing on the part of Comcast. Comcast specifically disclaims any liability, culpability, negligence, or wrongdoing. Each of the Parties has entered into this Agreement with the intention to avoid further disputes and litigation with the attendant inconvenience, expenses, and contingencies. 4.13.2. The Parties agree to cooperate fully with one another to accomplish and implement the terms of this Settlement. Such cooperation shall include, but not be limited to, execution of such other documents and the taking of such other action as may reasonably be necessary to fulfill the terms of this Settlement. The Parties to this Settlement shall exercise reasonable efforts, including all efforts contemplated by this Settlement and any other efforts that may become necessary by Court order, or otherwise, to effectuate this Settlement and the terms set forth herein. 4.13.3. Enforcement And Continuing Jurisdiction Of The Court: Pursuant to California Code of Civil Procedure section 664.6, the Court shall retain continuing jurisdiction over this Action and over all Parties, to the fullest extent necessary to enforce and effectuate the terms and intent of the Settlement and this Agreement. 4.13.4. Neither Plaintiffs nor Plaintiffs’ counsel (and any attorneys or staff associated with their practices) shall provide any information to the press or third-parties (including 15 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO in response to any inquiries from the press or third-parties) or otherwise discuss or publicize or cause to be publicized (either through press releases, website postings, social media postings, etc.) anything about this Action or the Settlement (including but not limited to the Enhancement Payments or the amount thereof). Plaintiffs and Plaintiffs’ counsel affirmatively represent that they have not provided any information to the press or third-parties (other than to PAGA Settlement Employees in response to any inquiries) or otherwise discussed or publicized or caused to be publicized anything about this Action or the Settlement prior to signing this Agreement. Nothing in this paragraph shall prevent Plaintiffs’ counsel from communicating with the PAGA Settlement Employees and fulfilling their ethical responsibilities under the Settlement. 4.13.5. Neither Plaintiffs’ Counsel nor any other attorneys acting for, formerly acting for, or purporting to act for, Plaintiffs, may recover or seek to recover any amounts for fees, costs, or disbursements from Comcast or the Maximum Settlement Amount except as expressly provided herein. 4.13.6. Plaintiffs represent and warrant that they have the right and exclusive authority to sign this Agreement and that they have carefully read and understand the full contents of this Agreement and are voluntarily entering into this Agreement after having received legal advice from Plaintiffs’ Counsel with respect to the advisability of making the Settlement provided for herein and the advisability of singing this Agreement. 4.13.7. Plaintiffs represent and warrant that they have not assigned or transferred or purported to assign or transfer to any person or entity, any claim or portion thereof, or interest therein, which is or may be subject to this Agreement. 4.13.8. This Agreement sets forth the entire agreement between the Parties and fully supersedes any and all prior and/or supplemental understandings, whether written or oral, between the Parties concerning the subject matter of this Agreement. Any modification to this Agreement must be in writing and signed by Plaintiffs or Plaintiffs’ Counsel, and the one hand, and by an authorized officer of Comcast or by Comcast’s Counsel, on the other hand. This Agreement may not be changed, altered, or modified, except in writing signed by the Parties or their counsel and approved by the Court. 16 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 4.13.9. This Agreement shall be binding upon and inure to the benefit of the Parties, and to their respective heirs, trustees, executors, administrators, successors, and assigns. 4.13.10. This Agreement shall become effective upon its execution by all of the undersigned and may be executed in counterparts which shall have the same force and effect as if all signatories had signed the same instrument. 4.13.11. Paragraph titles or captions contained in the Agreement are inserted as a matter of convenience and for reference, and in no way define, limit, extend, or describe the scope of this Agreement, or any provision thereof. 4.13.12. This Agreement shall be construed and interpreted as if all of its language were prepared jointly by the Parties. No language in this Agreement shall be construed against a Party on the ground that such Party drafted or proposed that language. 4.13.13. Except for the purposes of effectuating and enforcing the terms of this Agreement, which include barring claims that are released pursuant to this Agreement, neither this Agreement nor any of its terms nor the settlement itself shall be: (a) construed as, offered, or admitted in evidence as, received as, or deemed to be evidence for any purpose adverse to Comcast and/or any of the Releasees, including but not limited to, evidence of a presumption, concession, indication, or admission by any of the Releasees of any liability, fault, wrongdoing, omission, concession, or damage, or (b) disclosed, referred to, or offered in evidence against Comcast and/or any of the Releasees in any other civil, criminal, or administrative action or proceeding. 4.13.14. The Parties’ rights and obligations under this Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of California. California law shall govern the interpretation of this Agreement even if a choice of law analysis under state or federal law would dictate that another forum’s law be applied. IN WITNESS WHEREOF, this PAGA Settlement Agreement is executed by the Parties and their duly authorized attorneys, as of the day and year set forth below. 17 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO Dated: [May]September ___, 2020 PLAINTIFF ELTER MACKEY By Plaintiff Elter Mackey Dated: [May]September ___, 2020 PLAINTIFF TIERRA LUSTER By Plaintiff Tierra Luster Dated: [May]September ___, 2020 COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC By Name: Title: Dated: [May]September ___, 2020 MARLIN & SALTZMAN By Stan Saltzman Cody Kennedy Attorneys for Plaintiffs Elter Mackey and Tierra Luster Dated: [May]September ___, 2020 MORGAN, LEWIS & BOCKIUS LLP By Daryl S. Landy Andrew P. Frederick Attorneys for Defendant Comcast Cable Communications Management, LLC 18 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO Exhibit A <> <> <> <> <> Re: Settlement Payment From Mackey/Luster v. Comcast Cable Lawsuit Dear <> <>: Enclosed is your settlement payment from the settlement of the lawsuit entitled Mackey and Luster et al. v. Comcast Cable Communications Management, LLC, San Francisco County Superior Court, Case No. CGC-19-574728. The settlement includes all current and former non-exempt retail sales employees who worked for Comcast Cable Communications Management, LLC (“Comcast”) in California at any point from January 4, 2018, through ___________ [insert Approval Date]. You have been identified as a current or former Comcast employee to whom this settlement applies and who is included in this settlement. Enclosed is a check made out to you. The check represents your share of the settlement for PAGA penalties ($__________). “PAGA penalties” are civil penalties recovered by Plaintiffs on behalf of the government. They are separate from unpaid wages and/or other remedies available at law, which you may be recover in an individual action. This lawsuit was filed against Comcast pursuant to the California Labor Code Private Attorneys General Act of 2004, Cal. Lab. Code § 2698 et seq. (called “PAGA”). The lawsuit was brought on behalf of the State of California and all similarly situated “aggrieved employees” of Comcast for civil penalties for alleged wage and hour violations, including but not limited to the alleged failure to pay minimum, straight time, and overtime wages, provide compliant meal periods and rest breaks, pay meal and rest period premium payments, provide compliant itemized and accurate wage statements, timely and fully pay all wages during employment and upon termination, maintain accurate employment records, reimburse necessary business expenses, provide written commission rates, and provide suitable seating. Comcast denies that it has done anything wrong or that it owes any penalties. The parties agreed to resolve the case for a total payment of $3,250,000, and as part of that settlement, Comcast agreed to pay a certain amount of money categorized as PAGA penalties. Under the PAGA statute, the penalties paid in this settlement get divided between the State (75%) and the employees (25%) after deducting for court approved attorney fees and costs. As a result of this settlement, the State of California’s and your ability to seek civil penalties recoverable under the PAGA for the claims that were asserted or could have been asserted in the lawsuit have been released. However, any non-PAGA claims, including individual claims that you are entitled to personally bring against Comcast, are not subject to the settlement, and have not been released. If you have any questions, you can contact the settlement administrator (whose contact information is at the top of this letter). 19 Case No. CGC-19-574728 AMENDED PAGA SETTLEMENT AGREEMENT AND RELEASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO Sincerely, [Administrator] Document comparison by Workshare 10.0 on Friday, September 25, 2020 3:49:17 PM Input: Document 1 ID file://C:\Users\MP072969\Documents\Mackey -- Settlement Agreement.DOCX DescriptionMackey -- Settlement Agreement Document 2 ID file://C:\Users\MP072969\Documents\012308__39582416v1_Mackey -- Amended Settlement Agreement.DOCX Description012308__39582416v1_Mackey -- Amended Settlement Agreement Rendering set MLB Set 1 Legend: Insertion [Deletion ] Moved from Moved to Style change Format change Moved deletion Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell Statistics: Count Insertions 17 Deletions 9 Moved from 0 Moved to 0 Style change 0 Format changed 0 Total changes 26 x EXHIBIT C to Declaration of Stanley D. Saltzman !" #$ %&'(' ()&* ''$(++ ,&- $ + .)&++& / 0 "&$)-& $(1$'&1 $+ .)&++& ,&* .( ()&*(' - 2-($,&+(/ 0 +($0 " $ -( 0+( - %($&" -- $ + .)&++& ,+#$ #($* $(0(&%(' 3*&0 4($( - 5($0 3+( !" #$%& '("&)"*" +, -! ./% " + !" 012203456 7! *%8 7 *!9 &* :; *" & *!9 <=>6?@@A+ B .C7"!% ?5?665?@?@A+ /"*& ?5?665?@?@DE 652@57 ) ="&=7F%" -G-456413H3>? 6@3 State of Ca lifomia C4-c, Labor and Workforce Development Agency / GOV Department of Industrial Relations Private Attorneys General Act (PAGA) - Filing Proposed Settlement of PAGA case PAGA Number (LWDA-CM-) : * Please enter only the eight digit number after "LWDA-CM-,. in the following format, 'XXXXXX-.XX': Search for PAGA Case number Your First Name * Your Last Name * Your Email Address * [ I l ] [ Your Street Name, Number and Suite/Apt * Your Mobile Phone Number Your City * Your Work Phone Number Your State * Your Zip/Postal Code * Court * Court Case Number * Hearing Date (if any) Hearing Time Hearing Location Number of aggrieved employees * _____ I ....._I _ __ ! " # $# % & '()" # * *# & * $(&" # +,-./01-.,2345.467-8694:290;8:<,;6-8/;84=-9>?@/4264A-8<2A<BCDCE8=-F0;9GA2G:-3HI%JK*LKL%KHMN%OJN'*MKH%LJN %L HPHQHKRS*!TU! ") $( S (U$! ()U V $W$V U # UTU($ U##)"X Y $ TXU &Y#$" T"U#(&U! #YZTU#$#(U$!$(()# #)"X [K&U \)U " # $!U $! ()" # ]U#(!) U#̂$ $(&" # [ )X"U _[̀ab _[̀ab c[adbbefbdf̀b̀ b *" # !g ̂ " # [ Th i j LTU! (& #h i j Gross settlement amount * Gross penalty amount * Penaltles to LWDA • ~--~II~--~ Date of proposed settlement • Proposed Settlement * !I Other Attachment (if any) 11 -- -- Cl I understand that, if I file, I must comply with the redaction rules consistent with this notice. x EXHIBIT D to Declaration of Stanley D. Saltzman 1 Sandy Laranjo From: Brotarlo, Jason@DIR Sent: Tuesday, August 25, 2020 1:31 PM To: Sandy Laranjo Subject: RE: PAGA No.: LWDA-CM-653367-19 / San Francisco County Superior Court Case No. CGC-19-574728 Hello Sandy Laranjo, I do see an uploaded proposed settlement on 0707/2020 submitted by a Cody. The court document tittle is “LABOR CODE PRIVATE ATTORNEYS GENERAL ACT SETTLEMENT AGREEMENT AND RELEASE” Thank you From: Sandy Laranjo Sent: Tuesday, August 25, 2020 11:03 AM To: DIR PAGAInfo Subject: RE: PAGA No.: LWDA-CM-653367-19 / San Francisco County Superior Court Case No. CGC-19-574728 CAUTION: [External Email] This email originated from outside of our DIR organization. Do not click links or open attachments unless you recogniz the sender and know the content is expected and is safe. If in doubt reach out and check with the sender by phone. Good morning, Just following up with this request. See below. Thank you! From: Sandy Laranjo Sent: Friday, August 21, 2020 11:46 AM To: 'PAGAinfo@dir.ca.gov' Subject: PAGA No.: LWDA-CM-653367-19 / San Francisco County Superior Court Case No. CGC-19-574728 Good morning, On July 7, 2020, we submitted a Proposed Settlement of PAGA Case form together with the Settlement Agreement via the PAGA Filing page on the DIR website. I inserted my email address but never received a confirmation email for that upload. I did receive the message that said: Thank you. If you provided an email address with your submission, a confirmation regarding your submission will be emailed to you. Otherwise, you can search for the case to verify that your submission was properly received. Click Here to Search Case 2 I have attempted to search for this case and filings but have been unsuccessful. We need to have confirmation of this upload to present to the Court at an approval hearing but I’m unable to locate anything. Can you please send a confirmation or this submission? Thank you! Sandy Laranjo Administrative Assistant/Paralegal Marlin & Saltzman, LLP 29800 Agoura Road, Suite 210 Agoura Hills, CA 91301 Phone: (818) 991-8080 Fax: (818) 991-8081 slaranjo@marlinsaltzman.com IMPORTANT/CONFIDENTIAL: This e-mail transmission is intended only for the use of the individual(s) to whom it is addressed. This transmission contains a communication and/or information from the law firm of MARLIN & SALTZMAN, LLP which may be privileged, confidential and exempt from disclosure. If this message is received by anyone other than an intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this e-mail in error, please respond to the sender by return e-mail, notifying us of the unintended receipt by you. We ask that you then permanently remove this e-mail from your computer system. Private Attorneys General Act (PAGA) - Filing Proposed Settlement of PAGA case PAGA Number (LWDA-CM-) : * Please enter only the eight digit number after "LWDA-CM-" in the following format, "XXXXXX- XX". Search for PAGA Case number Your Information (Person Who is Filing) Your First Name * Your Last Name * Your Email Address * Your Street Name, Number and Suite/Apt * Your Mobile Phone Number Your City * Your Work Phone Number Your State * Your Zip/Postal Code * Court and Hearing Information 653367-19 Cody Kennedy ckennedy@marlinsaltzm 29800 Agoura Road, Su Agoura Hills 818-991-8080 California 91301 Page 1 of 2 7/7/2020https://dir.tfaforms.net/271 Court * Court Case Number * Hearing Date (if any) Hearing Time Hearing Location Number of aggrieved employees * Gross settlement amount * Gross penalty amount * Penalties to LWDA * Date of proposed settlement * Proposed Settlement and Other Documents Proposed Settlement * Other Attachment (if any) Add Another Attachment Should you have questions regarding this online form, please contact PAGAInfo@dir.ca.gov IMPORTANT NOTICE OF REDACTION RESPONSIBILITY: All filers must redact: Social Security or taxpayer identification numbers; dates of birth; names of minor children; & financial account numbers. This requirement applies to all documents, including attachments. Submit San Francisco Superior CGC-19-574728 8/17/2020 907 3.250 3.250 1.560 07/06/2020 Browse... Browse... I understand that, if I file, I must comply with the redaction rules consistent with this notice. Page 2 of 2 7/7/2020https://dir.tfaforms.net/271 9 SUPPLEMENTAL DECLARATION OF STANLEY D. SALTZMAN ISO PLAINTIFFS’ MOTION FOR APPROVAL OF PAGA ACTION SETTLEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 29800 Agoura Road, Suite 210, Agoura Hills, California 91301. On September 25, 2020, I served the foregoing document described as SUPPLEMENTAL DECLARATION OF STANLEY D. SALTZMAN ISO MOTION FOR APPROVAL OF PAGA SETTLEMENT on all interested parties in said action: SEE ATTACHED SERVICE LIST [ ] (VIA US MAIL) I caused such envelope(s) to be deposited in the mail at Agoura Hills, California with postage thereon fully prepaid. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [ ] (VIA FEDERAL EXPRESS) I caused to have served such document(s) by depositing them in the drop box at Agoura Hills, California, for priority overnight next day delivery. [X] (VIA ELECTRONIC SERVICE) The above-named document has been electronically served on counsel of record by transmission through the File & ServeXpress system on the date below. The transmission of this document to File & ServeXpress system was reported as complete and a copy of the File & ServeXpress Transaction Receipt will be maintained along with the original document and proof of service in our office. [ ] (VIA PERSONAL SERVICE) I delivered such envelope(s) by hand to the offices of the addressee. [ ] (VIA E-MAIL) I caused to have such documents sent by electronic service [Fed. Rule Civ. Proc. Rule 5(b)(2)(a)] by electronically mailing a true and correct copy through Marlin & Saltzman’s electronic mail system to the e-mail address(s) set forth below, or as stated on the attached service list per agreement in accordance with Federal Rules of Civil Procedure rule 5(b). [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [ ] (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on September 25, 2020, at Agoura Hills, California. _______________________________ Sandy Laranjo 10 SUPPLEMENTAL DECLARATION OF STANLEY D. SALTZMAN ISO PLAINTIFFS’ MOTION FOR APPROVAL OF PAGA ACTION SETTLEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mackey v. Comcast Cable San Francisco County Superior Court Case No. CGG-19-574728 Service List Daryl S. Landy, Esq. MORGAN, LEWIS & BOCKIUS LLP 600 Anton Boulevard, Suite 1800 Costa Mesa, CA 92626 Telephone: (714) 830-0600 Facsimile: (714) 830-0700 daryl.landy@morganlewis.com Attorneys for Defendant COMCAST CABLE COMMUNICATIONS MANAGEMENT Andrew P. Frederick, Esq. Christie P. Bahna, Esq. MORGAN, LEWIS & BOCKIUS LLP One Market, Spear Street Tower San Francisco, CA 94105-1126 Telephone: (415) 442-1000 Facsimile: (415) 442-1001 Christie.bahna@morganlewis.com Attorneys for Defendant COMCAST CABLE COMMUNICATIONS MANAGEMENT 