ISKANIAN v. CLS TRANSPORTATION OF LOS ANGELES

Appellant’s Request for Judicial Notice

Cal.April 11, 2013

No. 8204032 APR 11 2013 IN THE SUPREME COURT spank Ahéntuusiee “lark OF THE STATE OF CALIFORNIA Frank A. Molsuire lerk aanaa ARSHAVIR ISKANIAN,an individual, Plaintiffand Appellant, Vv. CLS TRANSPORTATION OF LOS ANGELES, Defendant and Respondent. AFTER DECISION BY THE COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION Two CASE B235158 FROM THE SUPERIOR COURT, COUNTY OF LOS ANGELES, CASE No. BC 356521, ASSIGNED FOR ALL PURPOSES TO JUDGE ROBERT HESS, DEPARTMENT 24 MOTIONFORJUDICIAL NOTICE; MEMORANDUMOFPOINTS AND AUTHORITIES; PROPOSED ORDER; VOLUMEOF I CAPSTONE LAW APC PUBLIC CITIZEN LITIGATION GROUP GLENN A. DANAS (SBN 270317) SCOTT L. NELSON (SBN 413548 (DC)) RYAN H. Wu (SBN 222323) (COUNSEL PROHAC VICE) 1840 CENTURY PARK EAST,STE.450 1600 20TH STREET, NW Los ANGELES, CA 90067 WASHINGTON, DC 20009 TELEPHONE: (310) 556-4811 TELEPHONE: (202) 588-1000 FACSIMILE: (310) 943-0396 FACSIMILE: (202) 588-7795 GLENN.DANAS@CAPSTONELAWYERS.COM SNELSON@CITIZEN.ORG RYAN.WU@CAPSTONELAWYERS.COM Attorneysfor Plaintiffand Appellant RECEIVED ARSHAVIR ISKANIAN APR 11 2013 CLERK SUPREME COURT No. $204032 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ARSHAVIR ISKANIAN,an individual, Plaintiffand Appellant, Vv. CLS TRANSPORTATION OF Los ANGELES, Defendant and Respondent. AFTER DECISION BY THE COURT OF APPEAL, SECOND APPELLATEDISTRICT, DIVISION TWO CASE B235158 FROM THE SUPERIOR COURT, COUNTY OF LOS ANGELES, CASE NO. BC 356521, ASSIGNED FOR ALL PURPOSES TO JUDGE ROBERT HEss, DEPARTMENT 24 MOTIONFORJUDICIAL NOTICE; MEMORANDUM OFPOINTS AND AUTHORITIES; PROPOSED ORDER; VOLUME I OFI CAPSTONE LAW APC PUBLIC CITIZEN LITIGATION GROUP GLENN A. DANAS (SBN 270317) SCOTT L. NELSON (SBN 413548 (DC)) RYAN H. Wu (SBN 222323) (COUNSEL PRO HAC VICE) 1840 CENTURY PARK EAST, STE. 450 1600 20TH STREET, NW LOS ANGELES, CA 90067 WASHINGTON, DC 20009 TELEPHONE: (310) 556-4811 TELEPHONE:(202) 588-1000 FACSIMILE: (310) 943-0396 FACSIMILE: (202) 588-7795 GLENN.DANAS@CAPSTONELAWYERS.COM SNELSON@CITIZEN.ORG RYAN.WU@CAPSTONELAWYERS.COM Attorneysfor Plaintiffand Appellant ARSHAVIR ISKANIAN MOTION FOR JUDICIAL NOTICE Pleasetake notice that, pursuant to Evidence Code §§ 459 and 452(d) and (h) and California Rules of Court, rules 8.520(g) and 8.252(a), and for the Court’s convenience, Plaintiff and Appellant Arshavir Iskanian hereby movesfor an order grantingjudicial notice of the documents in the bound volume submitted herewith, all of whichare true and correct copies of the materials enumerated in the Table of Contents thereto. The Motion is based on this Notice and the Memorandum ofPoints and Authorities below. | MEMORANDUMOFPOINTS AND AUTHORITIES 1 INTRODUCTION Mr.Iskanian seeks judicial notice of the documents submitted herewith in the bound volume. These documentsaretrue and correct copies of motionsfiled by former membersoftheplaintiff class in Iskanian and orders issued thereon,all filed or issued after the order compelling arbitration thatis the subject of the instant appeal. These motions and orders werefiled andissuedin the action styled Kempler v. CLS Transportation Los Angeles, LLC, Los Angeles Superior Court Case No. BC473931, whichis related to Iskanian and was brought by former Iskanian class membersafter the Iskanian class action was decertified as a result of an order compelling individualarbitration (“Order”). A complete list of the specific documents to be judicially noticed can be found on the Table of Contents inside the bound volume submitted herewith. I. JUDICIAL NOTICE OF THE ATTACHED EXHIBITS SHOULD BE GRANTED All documents of which Mr.Iskanianseeksjudicial notice are records of the Kempler action, which wasfiled against CLS by the approximately 60 former /skanian class members whoelected to try to arbitrate their claims rather than continuingto join with the rest of the class in appealing the Order. Thetrial court deemed Kemplerrelated to Iskanian on December16, 2011. Evidence Code section 459(a) provides that a reviewing court may take notice of any matter specified in Evidence Code section 452. The matters that may be judicially noticed under Evidence Codesection 452 include the “[rJecords of ... any court ofthis state.” (Evidence Code §452(d).) A reviewing court may judicially notice records from state court proceedings. (Evidence Code § 459; Taus v. Loftus (2007) Cal.4th 683, 726[in which the reviewing court grantedjudicial notice of records from other California courts relevant to whether the defendants had obtained private information about the plaintiff from confidential—rather than public—court records]; Bell v. Greg Agee Construction, Inc. (2004) 125 Cal.App.4th 453, 459, fn. 2 [a workplace injury action in which the reviewing court took judicial notice of the employer’s bankruptcy filing and of the employee’s workers’ compensationfiling].) The attached documentsare relevant to Mr. Iskanian’s appealbefore this Court because they refute an argument CLS makesforthefirst time in its Answer Brief on the Merits. Specifically, CLS now takesthe position that because approximately 60 former Jskanian class members opted to pursue individualarbitration after the trial court compelled the same,this demonstratesthat the arbitration agreement doesnotprevent the employees from vindicating their rights. (CLS’s Br.at 12.) However,as the attached documents demonstrate, the 60 former class members whoelected to proceed in arbitration spent the following year-and-a-halftrying in vain to access the arbitral forum to which they had been compelled. The 60 former class membershad to file the new Kempler action and repeatedly move for orders from thetrial court to impel CLS to engage in the arbitration process. The attached documents demonstrate that CLSconsistently refused to pay its share ofthe arbitration fees for a period of about seven months, resulting in the Ametican Arbitration Association (“AAA”) closing each of the former class members’ files twice andthat CLSinstructed AAA not to proceed with any arbitrations unless and until the former class members agreed to consolidate their arbitration claims first before onearbitrator, then four arbitrators. The former class members accordingly had to engage in over one-and-a-half years oftrial court litigation just to gain access to the only forum allowed to them. Hifi. CONCLUSION As the documentscontained in the bound volumearethe proper subjects ofjudicial notice, Mr. Iskanian respectfully requests that the Court grant this Motion andtake judicial notice of the documents boundin the volumepresented. Dated: April 10, 2013 Respectfully submitted, Capstone Law APC By: MLZ<— Glenn anas Ryan 4 Wu Public Citizen Litigation Group Scott L. Nelson Attorneys for Plaintiff-Appellant ARSHAVIR ISKANIAN PROPOSED ORDER GRANTING PLAINTIFF-APPELLANT’S MOTION FOR JUDICIAL NOTICE The Motion for Judicial Notice filed by Plaintiff and Appellant Arshavir Iskanian, having been filed, and grounds for judicial notice appearing warranted under Evidence Code §459, §451 and/or § 452, IT IS ORDEREDthat Plaintiff and Appellant Arshavir Iskanian’s Motionis granted in full and the Court takes judicial notice of all of the documents identified in the bound volumepresented with the motion. [alternatively] IT IS ORDEREDthat Plaintiff and Appellant Arshavir Iskanian’s Motion is grantedin part, and the Court takes judicial notice of the documents that are located behind the following tabs within the bound volume: Date: Chief Justice TABLE OF CONTENTS FOR EXHIBITS TO MOTION FOR JUDICIAL NOTICE TAB DESCRIPTION DATE VOL. Complaintfiled in Kempler v. CLS Transportation Los Angeles, LLC, Los Angeles Superior Court Case No. BC473931 (‘Kempler Action’) 11/18/11 ¢ Plaintiffs’ Notice of Motion and Motion for Order Compelling Specific Performance of Individual Arbitration; Or, in the Alternative, Setting Aside the Arbitration Agreement e Plaintiffs’ Memorandum of Points and Authorities In Support of Motion for Order Compelling Specific Performance of Individual Arbitration; Or, in the Alternative, Setting Aside the Arbitration Agreement e Declaration of Raul Perez in Support ofPlaintiffs’ Motion for Order Compelling Specific Performance of Individual Arbitration; Or, in the Alternative, Setting Aside the Arbitration Agreement 11/18/11 w a Notice of Related Cases re Kempler Action 11/21/11 Plaintiffs’ Amended Notice of Motion and Motion for Order Compelling Specific Performance of Individual Arbitration; Or, in the Alternative, Setting Aside the Arbitration Agreement 12/20/11 a y Notice of Ruling re: Related Cases 12/21/11 Minute Order re Motion to Consolidate and Arbitration and Clarification of Order 02/07/12 e Plaintiffs’ Motion for an Order Deeming Defendant CLS to Have Waived Arbitration e Declaration of Raul Perez in Support of Plaintiffs’ Motion for an Order Deeming Defendant CLS to Have Waived Arbitration as to 19 Plaintiffs 08/31/12 Plaintiffs’ Amended Notice of Motion for Order Deeming Defendant CLS to Have Waived Arbitration 09/20/12 Minute Order re Case Management Conference 11/06/12 Co nf or me d Co py O o O e Y N D H N W B P W Y H B w e ~ ~ * ’ Y Y Y Y SH S N N N Y N e e e e w w e e e o e o e O e o t r a Y F Y N M F H D O D w e I D A B R D O H 2 S Raul Perez (SBN 174687) RPerez@lnitiativeLegal.com Melissa Grant (SBN 205633) MGrant@lnitiativeLegal.com Suzy E. Lee (SBN 271120) SuzyLee@lnitiativeLegal.com Initiative Legal Group APC 1800 Century Park East, 2nd Floor Los Angeles, California 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 Attorneys for Plaintiffs count Losa NOV 18 2011 John A. e, Executive Officer/Clark BY He , Depu Gina Grider pry SUPERIOR COURTOF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES GREG KEMPLER,anindividual; ADRIEN WARREN,an individual; ANANTRAY SANATHARA,an individual; ANGELO GARCIA,an individual; ARTHUR POST,an individual; AVAAVAU TOAILOA,an individual, BELINDA WASHINGTON,an individual; BENNETT SLOAN,anindividual; BRUCE GOLD,anindividual; CARL MUELLER,anindividual; CARL SWARTZ, an individual, CASSANDRA LINDSEY,an individual; CLEOPHUS COLLINS,an individual; DANIEL ARAYA,anindividual; DANIEL ROGERS MILLINGTON,JR., an individual; DAROLD CALDWELL,an individual; DAVID BARANCO,an individual; DAVID MONTOYA,an individual; DAWN BINGHAM,anindividual; EDWARD SMITH,anindividual; EDWIN GARCIA,an individual; ELIJHA NORTON, an individual; FLAVIO SILVA,an individual; FRANK G. DUBUY,anindividual; GERALD GRIFFIN,an individual; GLEN ALSTON,an individual; IGOR KROO,an individual; JAMESC. DENISON,anindividual; JAMES RICHMOND,anindividual; JAMES STERLING,anindividual; JERRY BOYD,an individual; JIRO FUMOTO,anindividual; JOHNNIE EVANS,an individual; JONATHON SCOTT,an individual; JULIUS FUNES,an individual; KAREN BAILEY,an BC 479981Case No.: (1) Breach of Contract; (2) Rescission; (3) Specific Performance; and (4) Declaratory Relief Jury Trial Demanded m. “ CONF p cory CELES COMPLAINT m o S S S I D H O O B P W Y N H = b o 1 ) n N N O i ) i ) n N i ) b o — — — — — " — — — —_ — — o o ~ ] n N S s a W w N o _ o S © O o ~ n N W s + > b e N R _ C o individual, KARIM SHARIF,an individual; KENNY CHENG,anindividual; KUNG MING CHANG,an individual; LAMONT CRAWFORD,an individual; LEROY CLARK,anindividual; LUIS EARNSHAW, an individual; MARCIAL SAZO, an individual; MARQUEL ROSE,an individual; MASOOD SHAFII, an individual; MATTHEW LOATMAN,an individual; MIGUEL DE LA MORA,an individual; MYRON ROGAN,an individual; NEIL BEN YAIR,an individual; PATER PAULL, an individual; PATRICK COOLEY,an individual; RAFAEL CANDELARIA,an individual; RAUL FUENTES,an individual; REGINALD COLWELL,an individual; ROBERT OLMEDO,anindividual; ROGER PERRY,an individual; SCOTT SULLIVAN, STEVE MAYNARD,an individual; SUSAN STELLMAN,an individual; THOMAS MARTIN,an individual; WAYNE IKNER,an individual; WILLIAM BANKER,an individual; and WILLIAM PINKERTON,an individual, Plaintiffs, vs. CLS TRANSPORTATION LOS ANGELES LLC, a Delaware corporation; and DOES1 through 10, inclusive, Defendants. -1-COMPLAINT — o O O o N N D H H W B F W Y K L n N tr o R o N o N O N O n N N o N O _ — _ — _ — — po e — _ _ — — _ — o o ~ N ~ n > B w N _ S o O o C O S N W N P p Ww W N o = © Plaintiffs, individuals, allege as follows: JURISDICTION AND VENUE I. This Court has jurisdiction over this action pursuant to the California Constitution, Article VI, § 10, which grants the Superior Court “original jurisdiction in all causes except those given bystatute to other courts.” The statutes under whichthis action is brought do not specify any otherbasis for jurisdiction. 2. This Court has jurisdiction over all Defendants because, upon information and belief, each partyis either a citizen of California, has sufficient minimum contacts in California, or otherwiseintentionally avails itself of the California market so as to render the exercise of jurisdiction over it by the California courts consistent with traditional notionsoffair play and substantial justice. 3. Venueis properin this Court because, upon information and belief, one or more of the named Defendantsreside, transact business, or have offices in this county and the acts and omissionsalleged herein took place in this county. THE PARTIES 4. Plaintiff GREG KEMPLERis a resident of Los Angeles County,in the state of California. 5. Plaintiff ADRIEN WARRENis a resident of San Mateo County,in the state of California. 6. Plaintiff ANANTRAY SANATHARA isa resident of Orange County,in the state of California. 7. PlaintiffANGELO GARCIAis a resident of Solano County,in the state of California. 8. Plaintiff ARTHUR POSTis a resident of Los Angeles County,in the state of California. 9. Plaintiff AVAAVAU TOAILOAis a resident of Alameda County, in the state of California. -2- COMPLAINT — O o F e N H H H S e W D L Y N O o O N O N H H O K N N O N O N O w R m w O R O l o N D H A W P W N Y KF & O D O O H H Y D Y N F F W N S Y & 10. New York. 11. California. 12. California. 13. California. 14. California. 15. Florida. 16. of California. 17. California. 18. Plaintiff BELINDA WASHINGTONis resident of Ulster County,in the state of Plaintiff BENNETT SLOANis a resident of San Mateo County,in the state of Plaintiff BRUCE GOLDis a resident of Los Angeles County, in the state of Plaintiff CARL MUELLERisa resident of Contra Costa County, in the state of Plaintiff CARL SWARTZis a resident of Los Angeles County,in the state of Plaintiff CASSANDRA LINDSEYis a resident of Flagler County, in the state of Plaintiff CLEOPHUS COLLINS isa resident of Los Angeles County, in the state Plaintiff DANIEL ARAYAis resident of San Bernardino County, in the state of Plaintiff DANIEL ROGERS MILLINGTON,JR.is a resident of Orange County, in the state of California. 19. PlaintiffDAROLD CALDWELLis a resident of Los Angeles County,in the state of California. . 20. of California. 21. California. 22. California. 23. Plaintiff DAVID BARANCOis a resident of San Francisco County,in the state Plaintiff DAVID MONTOYAis a resident of Kern County, in the state of Plaintiff DAWN BINGHAMis a resident of Los Angeles County,in the state of Plaintiff EDWARD SMITHis a resident of Los Angeles County,in the state of -3- COMPLAINT o O O o n N HD R T W F F W N = m o B b N H K H K N K N K N N O N O w e R e R R S e O O e e e l oO o N O A N B P W O NY O K F O o O O F H NH N D H F& F WC W N Y S Y & California. 24. California. 25. California. 26. 27. California. 28. California. 29. California. 30. California. 31. California. 32. California. 33. California. 34, California. 35. California. 36. California. 37. Plaintiff EDWIN GARCIAis a resident of Los Angeles County, in the state of Plaintiff ELISHA NORTONis resident of Los Angeles County, in the state of Plaintiff FLAVIO SILVAis a resident of Marin County, in the state of California. Plaintiff FRANK G. DUBUYis a resident of Los Angeles County,in the state of Plaintiff GERALD GRIFFIN is a resident of Los Angeles County, in the state of Plaintiff GLEN ALSTONis a resident of Alameda County, in the state of Plaintiff IGOR KROOis a resident of Los Angeles County,in the state of Plaintiff JAMES C. DENISONis a resident ofAlameda County, in the state of PlaintiffJAMES RICHMONDisa resident of Amador County,in the state of Plaintiff JAMES STERLINGis a resident of Los Angeles County, in the state of Plaintiff JERRY BOYDis a resident of Los Angeles County, in the state of Plaintiff JIRO FUMOTOis a resident of Santa Clara County, in the state of Plaintiff JOHNNIE EVANSis a resident of Los Angeles County, in the state of Plaintiff JONATHON SCOTT is a resident of Maricopa County,in the state of -4- COMPLAINT n t O o = N Y D H H W F F W D N L B R K N K O K N K F K H K H D O D R w m e e o n K N N W R P W e N K O O O H D N T H R P W D N Y F Y S& S Arizona. 38. California. 39. California. 40. California. 41. California. 42. of California. 43. Plaintiff JULIUS FUNESis a resident of Los Angeles County,in the state of Plaintiff KAREN BAILEYis a resident of San Francisco County, in the state of Plaintiff KARIM SHARIFis a resident of Los Angeles County, in the state of Plaintiff KENNY CHENGis a resident of San Mateo County,in the state of Plaintiff KUNG MING CHANGisa resident of Los Angeles County,in the state Plaintiff LAMONT CRAWFORDis a resident of Los Angeles County, in the state of California. 44, California. 45. California. 46. California. 47. California. 48. California. 49. Plaintiff LEROY CLARKis a resident of Los Angeles County, in the state of Plaintiff LUIS EARNSHAWis a resident of San Mateo County, in the state of Plaintiff MARCIAL SAZOis a resident of Los Angeles County, in the state of Plaintiff MARQUEL ROSEis a resident of Los Angeles County, in the state of Plaintiff MASOOD SHAFIIis a resident of Los Angeles County, in the state of Plaintiff MATTHEW LOATMANisa resident of Los Angeles County, in the state of California. 50. Plaintiff MIGUEL DE LA MORA isa resident of Los Angeles County, in the state of California. -5- COMPLAINT _ — o O F F SN D D T N R W L H n h b o N O i ) b o N h N O w e ) R O — — — — — _ o a n — — _ — — o o ~ ~ n N ~ N > G y N O — S o o O a o ~ O N N n b k W w N — _ 5]. California. 52. California. 53. California. 54. California. 55. Plaintiff MYRON ROGANis a resident of Los Angeles County, in the state of Plaintiff NEIL BEN YAIRis a resident of Los Angeles County, in the state of Plaintiff PATER PAULLisa resident of Los Angeles County, in the state of Plaintiff PATRICK COOLEYis a resident of Los Angeles County,in the state of Plaintiff RAFAEL CANDELARIAis a resident of Los Angeles County, in the state of California. 56. California. 57. California. 58. California. 59. 60. California. 61. California. 62. Arizona. 63. California. 64. California. Plaintiff RAUL FUENTESisa resident of Los Angeles County, in the state of Plaintiff REGINALD COLWELLis a resident of Ventura County,in the state of PlaintiffROBERT OLMEDOis a resident of Los Angeles County, in the state of Plaintiff ROGER PERRYis a resident of Clark County,in the state ofNevada. Plaintiff SCOTT SULLIVANis a resident of Los Angeles County, in the state of Plaintiff STEVE MAYNARDis resident of Los Angeles County, in the state of Plaintiff SUSAN STELLMANisa resident of Pima County, in the state of PlaintiffTHOMAS MARTINisa resident of Los Angeles County, in the state of Plaintiff WAYNE IKNERis a resident of Orange County,in the state of -6- COMPLAINT — O o O o N N D N W W F F W W L D N Y N Y Y N N Y D Y N Y K N N R O w w e e a O o S N D N NW N F F W w H H K— §— D O C O H D H D H W B P W H B + O O 65. Plaintiff WILLIAM BANKERis a resident of Los Angeles County, in the state of California. 66. Plaintiff WILLIAM PINKERTONis a resident of Multnomah County,in the state of Oregon. 67. Defendant CLS Transportation Los Angeles LLC (hereinafter “Defendant”) was and is, upon information and belief, a corporation doing business within the state of Delaware, and at all times hereinafter mentioned, is an employer whose employees are engaged throughout this county, the state of California, or the various states of the United States ofAmerica. 68. Plaintiffs are unaware of the true namesorcapacities of the Defendants sued herein underthefictitious names DOES1-10, but pray for leave to amend to serve such fictitiously named Defendants pursuant to California Code of Civil Procedure § 474 once their namesand capacities become known. 69. Plaintiffs are informed and believe, and thereon alleges, that Does 1-10 are the partners, agents, owners, shareholders, managers or employees of Defendant, and were acting on behalf of Defendant. 70. Plaintiffs are informed and believe, and thereonalleges, that each and all ofthe acts and omissionsalleged herein was performedby,oris attributable to, Defendant and DOES 1-10 (collectively “Defendants”or “CLS”), each acting as the agent for the other, with legal authority to act on the other’s behalf. The acts of any and all Defendants were in accordance with, and representthe official policy of, Defendant. 71. At all times herein mentioned, Defendants, and each of them, ratified each and every act or omission complained of herein. At all times herein mentioned, Defendants, and each of them,aided and abetted the acts and omissionsof each andall the other Defendants in proximately causing the damages herein alleged. 72. Plaintiffs are informed and believe, and thereonallege, that each ofsaid Defendants is in some mannerintentionally, negligently, or otherwise responsible for the acts, omissions, occurrences, and transactions alleged herein. -7- COMPLAINT o O e S N D B W N f F W Y N = N O N O H O K H K H K H K O K N D R w e R e oO o n N D H U H B P W Y N Y K H OD O O O F H H D D B N H B R Ww W N Y K F O S GENERAL ALLEGATIONS 73. On August 4, 2004, a putative class action complaint wasfiled in the action styled Arshavir Iskanian v. CLS Transportation Los Angeles, LLC, et al., Los Angeles Superior Court case number BC 356521 (the “Jskanian Action”), That action is currently pending. 74. Atal! times set forth, CLS employed Plaintiffs in the capacity of livery drivers and other similar positions. Each and every Plaintiff herein is either currently employed by Defendants or was employed by Defendants within the four years prior to the filing of the complaint in the Jskanian Action. 75. On information and belief, Defendants continue to employ drivers within California. 76. The Iskanian Action wasfiled by Arshavir Iskanian on his own behalf and on behalf of a class of similarly situated current and former employees of Defendant. 77. The Iskanian Action alleged causes of action for: (1) unpaid overtime in violation of California Labor Code (‘Labor Code”) §§ 510 and 1198; (2) improper wage statements in violation of Labor Code § 226(a); (3) missed meal periodsin violation of Labor Code §§ 226.7(a) and 512; (4) missed rest periods in violation of Labor Code § 226.7(a); (5) improper withholding of wages and failure to indemnify business expenses in violation of Labor Code §§ 221 and 2802; (6) confiscation of gratuities in violation of Labor Code § 351; (7) non-payment of wages upon termination in violation of Labor Code §§ 201 and 212; and (8) failure to pay wagesin violation of Labor Code § 204. The Iskanian Action also asserted claims underthe Private Attorneys General Act of 2004, Labor Code §§ 2698, et seq. (“PAGA”). 78. In February 2007, CLS filed a Motion to Compel Arbitration and Stay or Dismiss the Iskanian Action. The plaintiffs to the Iskanian Action opposed that motion. On March 13, 2007, the trial court granted CLS’s Motion to Compel Arbitration. On information and betief, the documentattached hereto as Exhibit | is a copy of an arbitration agreement entered into between the Defendant CLSand Plaintiff Kung-Ming Chang. On information andbelief, it is Defendants’ position that this documentis substantially identical to arbitration agreements -8- COMPLAINT — O o S o S N H D N W & W Y L Y N y N H w R N O K H K N N O PD P D R R o m m e e e e e a o N D L W R e W N K F DO D C O mo O H I D H A B R W Y N Y Y O O purporting to govern the claims of each and every Plaintiff herein. 79. ‘The plaintiffs in the [skanian Action appealedthetrial court’s order compelling arbitration. On May 27, 2008, the Court ofAppeal, remanded the matter back to the trial court for findings under the test enunciated in Gentry v. Superior Court, 42 Cal. 4th 443 (2007). However, on remand, CLS withdrew and abandoned its Motion to Compel Arbitration and litigation in the Jskanian Action proceeded in the Los Angeles Superior Court thereafter. 80. On August 24, 2009, the court certified the class in the Iskanian Action (the “Iskanian Class”). 81. Each and every Plaintiff herein was a memberofthe Jskanian Class. 82. In May 2011, CLSfiled a Motion for Renewalofits prior Motion to Compel Arbitration in the Jskanian Action. Theplaintiffs opposed the motion. On June 13, 2011, the trial court in the Iskanian Action granted CLS’s Motion for Renewal, ordered the plaintiff therein to individualarbitration, and dismissed the class claims. A true and correct copy ofthe court’s June 13, 2011 order is attached hereto as Exhibit 2. 83. On August 11, 2011, the plaintiffs to the Iskanian Action filed a notice ofappeal of the June 13, 2011 order, That appeal is pending andis notyet fully briefed. 84. Plaintiffs herein, however, sixty-three former membersofthe Iskanian Class, elected to pursue individual arbitration against Defendant pursuantto thetrial court’s order as follows: a. Plaintiff GREG KEMPLER(referred to as “Plaintiff” for this paragraph) filed a claim with ADRServices,Inc. (“ADR”) on or about August 12, 2011. A true and correct copy of Plaintiff's claim is attached hereto as Exhibit 3. By letter dated September 19, 2011, counselfor Defendants objected to Plaintiffs filing of a claim with ADR in relevantpart on the basis that KEMPLERwascontractually required to file the arbitration claim with the American Arbitration Association (“AAA”). A true and correct copy of the September19, 2011 letter is attached hereto as Exhibit 4. On September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. A true and correct copyofPlaintiffs September 19, 2011 fetter is attached hereto as Exhibit 5. By -9- COMPLAINT O o O S N N WB N W H B P W Y N Y & N O b w N N HN O K R D R K N H N R w e e o n N K N NH N B W N Y K| - D o O C O Y D N T H R P W Y H H K F S S letter dated October 10, 2011, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. A true and correct copy of Defendants’ October 10, 2011 letter is attached hereto as Exhibit 6. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalfof Plaintiff and would decline to arbitrate this and any future claims involving CLS. A true and correct copy of the AAA’sletter of October 20, 2011 is attached hereto as Exhibit 7. b. Plaintiff ADRIEN WARREN(referred to as “Plaintiff” for this paragraph) filed a claim with ADRon or about August 19, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevantpart on the basis that Plaintiff was contractually requiredtofile the arbitration claim with AAA. Onor about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. C. PlaintiffANANTRAY SANATHARA (referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about September 14, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on thebasis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAAandexpressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAAadvisedthat it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. d. PlaintiffANGELO GARCIA (referred to as “Plaintiff” for this paragraph) filed a claim with ADRon or about August 19, 2011. By letter dated September 19, 2011, counselfor Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that -10- COMPLAINT o O o e N Y D H W H F F W Y N Y m w N N N N Y N N Y N Y Y N S F T F F P F e E F P P S e S B O t S s O o N A O A K R O N S F o S O w H I D H F F W N T F G D Plaintiffwas contractually requiredto file the arbitration claim with AAA. Onor about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advancedby oron behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. €. PlaintiffARTHUR POST(referred to as “Plaintiff” for this paragraph)filed a claim with ADRon or about August 29, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevantpart on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. Onor about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitrationfiling with AAA and expressedits intent not to pay AAA’Ss requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalfofPlaintiff and would decline to arbitrate this and any future claims involving CLS. f. PlaintiffAVAAVAU TOAILOA(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 19, 2011. Byletter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevantpart on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintifffiled a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’srequested fees. Byletter dated October 20, 2011, AAA advised that it would refund any fees advancedbyoron behalf of Plaintiff and woulddecline to arbitrate this and any future claims involving CLS. g. Plaintiff BELINDA WASHINGTON(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADR in relevantpart on -Il- COMPLAINT o O e o N D W O F F W Y Y O = NM NM NY NY N NY NY NY R e m m m e a e s o N KA AW B W NY F& F O O wm NY DH WN W BR W H = OO the basis that Plaintiff was contractually requiredto file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAAand expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAAadvised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. h. Plaintiff BENNETT SLOAN(referred to as ‘Plaintiff’ for this paragraph)filed a claim with ADRon or about August 19, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. i. Plaintiff BRUCE GOLD(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about September 6, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiffs filing of a claim with ADRin relevantpart on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. j. Plaintiff CARL MUELLER(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 19, 2011. By letter dated September 19, 201], counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that -12- COMPLAINT O o f o N D O f F W w Y H = w o N Y H N N Y N Y N Y N Y N N N O F e E F K F E e SE O E S l L e o N D B N A N e k W O N Y K F OD O B O W O NH N H D N H F W H Y | O& O Plaintiffwas contractually requiredto file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 2011, by and through counsel, Defendants objectedto the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by oron behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. k. PlaintiffCARL SWARTZ (referredto as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objectedto Plaintiff's filing of a claim with ADRinrelevantpart on the basis that Plaintiff was contractually requiredto file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objectedto the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. 1. Plaintiff CASSANDRA LINDSEY(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff’s filing of a claim with ADRin relevant part on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objectedto the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. m. Plaintiff CLEOPHUS COLLINS(referredto as “Plaintiff” for this paragraph) filed a claim with ADR on or about September 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevantpart on the -43- COMPLAINT oO o S& S S N D N T H S P W Y NH N e S N O N O N O N O K N Y Y K N K N R N w m e e oO o n N DB D W H F P W N Y K H D B C O F A N K H N H FS F W D N Y | S basis that Plaintiffwas contractually requiredto file the arbitration claim with AAA. On or about September28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objectedto the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. n. PlaintiffDANIEL ARAYA(referred to as “Plaintiff” for this paragraph) filed a claim with ADRin or about August or September 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. oO. Plaintiff DANIEL ROGERS MILLINGTON,JR.(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiffs filing of a claim with ADRin relevant part on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAAandexpressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAAadvisedthat it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. p. PlaintiffDAROLD CALDWELL(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiffs filing of a claim with ADR in relevant part on the basis that -14- COMPLAINT e o S o S s H N D W F F W D K N 10 11 12 2B 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff was contractually requiredto file the arbitration claim with AAA. Onor about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalfof Plaintiff and would decline to arbitrate this and any future claims involving CLS. q. Plaintiff DAVID BARANCO(referred to as “Plaintiff” for this paragraph)filed a claim with ADRon or about August 19, 2011. Byletter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that Plaintiffwas contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. Byletter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalfof Plaintiff and would decline to arbitrate this and any future claims involving CLS. r. PlaintiffDAVID MONTOYA(referredto as “Plaintiff” for this paragraph)filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that Plaintiff was contractually requiredto file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individualarbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advancedbyor on behalfof Plaintiff and would decline to arbitrate this and any future claims involving CLS. s. Plaintiff DAWN BINGHAM(referred to as “Plaintiff” for this paragraph) filed a claim with ADR onor about September |, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that -15- COMPLAINT S o w o N D W H F F W Y N w m N H N N B N N N N N K N N e B e B e S E S E SE O E E E O o N D D W H W B P W O NY O -— - C O OD O R N H D W H f F W N n | O& O Plaintiff was contractually required to file the arbitration claim with AAA. Onor about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalf of Plaintiff and would dectine to arbitrate this and any future claims involving CLS. t. PlaintiffEDWARD SMITH(referred to as “Plaintiff” for this paragraph)filed a claim with ADR on or about August 18, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that Plaintiffwas contractually requiredto file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. Byletter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. u. Plaintiff EDWIN GARCIA(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel!for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part onthebasis that Plaintiff was contractually requiredto file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. Vv. Plaintiff ELISHA NORTON(referred to as “Plaintiff? for this paragraph) filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counselfor Defendants objected to Plaintiff's filing of a claim with ADRin relevantpart on the basis that -16- COMPLAINT O o C o H N H R A F P W L Y o O H O N H N H N Y NH N N Y N N O R Y e e e e E F E F E S E S c o o N D N A N B H O N F O O D O N D K N H R R W Y K F O& O Plaintiff was contractually required to file the arbitration claim with AAA. Onor about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’srequested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. w. Plaintiff FLAVIO SILVA(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 19, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiffs filing of a claim with ADRinrelevantpart on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalf of Plaintiff andwould decline to arbitrate this and any future claims involving CLS. x. Plaintiff FRANK G. DUBUY(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevantpart on the basis that Plaintiff was contractually required tofile the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. y. Plaintiff GERALD GRIFFIN (referred to as “Plaintiff” for this paragraph)filed a claim with ADR on or about August 12, 2011. Byletter dated September 19, 2011, counsel for — Defendants objected to Plaintiff's filing of a claim with ADRin relevantpart on the basis that -I7- COMPLAINT — o C o 4 S D H T H P P W N Y w o w o Y M N H N Y O N H N N Y N N N O K Y K Y e e F F F F P F F F E l L U E C o o D N K O A P B W O N S& H O O O H D W F F W N | © Plaintiff was contractually required tofile the arbitration claim with AAA. Onor about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’srequested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byoron behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. z. PlaintiffGLEN ALSTON(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADR inrelevantpart on thebasisthat Plaintiffwas contractually required tofile the arbitration claim with AAA. Onor about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October10, 2011, by and through counsel, Defendants objectedto the arbitration filing with AAA and expressed its intent not to pay AAA’srequested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. aa. Plaintiff IGOR KROO(referredto as “Plaintiff” for this paragraph) filed a claim with ADRon or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevantpart on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’srequested fees. Byletter dated October 20, 2011, AAA advised that it would refund any fees advanced byoron behalfof Plaintiff and would decline to arbitrate this and any future claims involving CLS. bb. Plaintiff JAMES C. DENISON(referred to as “Plaintiff” for this paragraph) filed a claim with ADRonor about August 19, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that - 18- COMPLAINT Su ra w o m e n N D n T H P F W N Y w o w o N O NY O K N N H N H N Y N H | H S . & S F | FE F FE F E F l S o N D H A B R WH O N Y K F O o O C O N D H F F W H N H | C O Plaintiffwas contractually requiredto file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byoron behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. cc. PlaintiffJAMES RICHMOND(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 19, 2011. By letter dated September 19, 2011, counsel for Defendantsobjectedto Plaintiff's filing of a claim with ADRin relevantpart on the basisthat Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. dd. Plaintiff JAMES STERLING(referred to as “Plaintiff” for this paragraph)filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counselfor Defendants objectedto Plaintiffs filing of a claim with ADRin relevantpart on the basis that Plaintiff was contractually requiredto file the arbitration claim with AAA. On orabout 2011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised thatit would refund any fees advanced byor on behalf of Plaintiffand would decline to arbitrate this and any future claims involving CLS. ee. Plaintiff JERRY BOYD(referred to as “Plaintiff” for this paragraph)filed a claim with ADR on or about August 12, 2011. Byletter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basisthat -19- COMPLAINT oO o O o I N D H O H F P W Y N Y N O NY O w R K H N O Y Y K N D R D e oO o n N B N A W FS F W Y N O -| - DG D C O O B H T K H H W F& F W w H Y — - O S Plaintiff was contractually required to file the arbitration claim with AAA. Onor about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. ff. Plaintiff JIRO FUMOTO(referred to as “Plaintiff? for this paragraph)filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevantpart on thebasis that Plaintiff was contractually requiredto file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. gg. Plaintiff JOHNNIE EVANS(referredto as “Plaintiff” for this paragraph)filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that Plaintiff was contractually requiredto file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. By fetter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. hh. Plaintiff JONATHON SCOTT (referred to as “Plaintiff” for this paragraph) filed a claim with ADRon or about August 12, 2011. By jetter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basisthat -20- COMPLAINT oO o f o V N D N n N F F W D Y — w o N O N O H N N H Y Y N O K N R O R w e R E R E O O e S O o n N O N O H B R Ww W N H K F O o OD O W A N DB D A H F P W N Y — & O& O Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. il. PlaintiffJULIUS FUNES(referred to as “Plaintiff” for this paragraph)filed a claim with ADRon or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objectedto Plaintiff's filing of a claim with ADRin relevant part on the basis that Plaintiffwas contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 2011, by and through counsel, Defendants objectedto the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advisedthat it would refund any fees advanced by or onbehalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. jj. Plaintiff KAREN BAILEY(referred to as “Plaintiff” for this paragraph)filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counselfor Defendants objected to Plaintiff's filing of a claim with ADRin relevantpart on the basis that Plaintiff was contractually required to file the arbitration clam with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalfof Plaintiff and would decline to arbitrate this and any future claims involving CLS. kk. Plaintiff KARIM SHARIF(referred to as “Plaintiff” for this paragraph)filed a claim with ADRon or about August 16, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that -21- COMPLAINT C o O e N D H W F F W D N O = N O N O H N K O DR O K N N O D D N w m e e e o O ~ N n W w > W N — _ S o o O o ~ N n W N - es ) N — O o Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advancedbyor on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. ll. PlaintiffKENNY CHENG(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 19, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basisthat Plaintiff was contractually requiredto file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objectedto the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. mm. PlaintiffKUNG MING CHANG(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevantpart onthe basis that Plaintiffwas contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. nn. PlaintiffLAMONT CRAWFORD (referred to as “Plaintiff? for this paragraph) filed a claim with ADR onor about September1, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiffs filing of a claim with ADRin relevantpart on the -22- COMPLAINT — _ o O P e S N DW N N W F F W D N Y N O N H N Y N Y N N K N H D K N D N R w e e O o Y N W N A W B P W Y N Y &S &§ OD O OD O W N K D O H F P W Y N - basis that Plaintiff was contractually requiredto file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objectedto the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. Byletter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. oo. PlaintiffLEROY CLARK(referred to as “Plaintiff” for this paragraph)filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objectedto Plaintiff's filing of a claim with ADRin relevant part on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objectedto the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. pp. Plaintiff LUIS EARNSHAW(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 19, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevantpart on the basis that Plaintiffwas contractually requiredto file the arbitration claim with AAA. Onor about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objectedto the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. qq. Plaintiff MARCIAL SAZO(referred to as “Plaintiff” for this paragraph)filed a claim with ADR onor about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevantpart on the basis that -23- COMPLAINT o y C o O o m e N D U H F f W Y N Y N o K N N H N P P O H N K B K D N O R w oO o T D W O T f f W Y Y Y —| - D T O B BO B I K H O H F P W L P = Plaintiff was contractually required tofile the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individualarbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’srequested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advancedbyor on behalf ofPlaintiff and would decline to arbitrate this and any future claims involving CLS. mr. PlaintiffMARQUEL ROSE(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objectedto Plaintiff's filing of a claim with ADRin relevant part on the basis that Plaintiff was contractually requiredto file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objectedto the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalfof Plaintiff and would decline to arbitrate this and any future claims involving CLS. ss. PlaintiffMASOOD SHAFII(referred to as ‘“‘Plaintiff’ for this paragraph) filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevantpart on thebasis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’srequested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalfof Plaintiffand would decline to arbitrate this and any future claims involving CLS. tt. PlaintiffMATTHEW LOATMAN(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about-August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that -24- COMPLAINT O o f o n N D B W O F P W Y N = N O N O H O N H H N N H NH N N R O e R R E SE O S e l l e o N K F A N B e W N K F O O R O N D n N H F F W N - © Plaintiff was contractually requiredto file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objectedto the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. Byletter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. uu. Plaintiff MIGUEL DE LA MORA (referredto as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevantpart on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advancedbyor on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. vv. Plaintiff MYRON ROGAN(referred to as “Plaintiff for this paragraph)filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objectedto Plaintiff's filing of a claim with ADRin relevant part on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 201 1, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. ww. PlaintiffNEIL BEN YAIR(referred to as “Plaintiff” for this paragraph)filed a claim with ADR onor about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevantpart on the basis that -25- COMPLAINT — o o c l N U M l l U l U M O C O U M G N O N B O G o N B D N W F e W N = S G O D H B H Y H D W D B W Y Y & Plaintiff was contractually required to file the arbitration claim with AAA. Onor about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalfofPlaintiff and would decline to arbitrate this and any future claims involving CLS. xx. Plaintiff PATER PAULL(referred to as “Plaintiff” for this paragraph)filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that Plaintiff was contractually requiredto file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objectedto the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. yy. PlaintiffPATRICK COOLEY(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that Plaintiffwas contractually required tofile the arbitration claim with AAA. Onor about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October10, 2011, by and through counsel, Defendants objectedto the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalfof Plaintiff and would decline to arbitrate this and any future claims involving CLS. zz. Plaintiff RAFAEL CANDELARIA(referred to as “Plaintiff” for this paragraph) filed a claim with ADR onor about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADR in relevant part on the basis that -26- COMPLAINT O o S e S I DB D W N F F W N Y = N O B R N O N H N O K N K R D N R w w m m e R R S E o f ~ N n N BA S W W w R — O Q o O o o ~ n N W n > W N — Q o Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advancedby or on behalfof Plaintiff and would decline to arbitrate this and any future claims involving CLS. aaa. Plaintiff RAUL FUENTES(referred to as “Plaintiff” for this paragraph) filed a claim with ADRon or about August 29, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. bbb. Plaintiff REGINALD COLWELL(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2013, counsel for Defendants objected to Plaintiffs filing of a claim with ADR in relevant part on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. cec. Plaintiff ROBERT OLMEDO(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 29, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevantpart on the basis that -27- COMPLAINT O o ©O & N N DB D O H F F W NH N = N o N H N Y N O V N N Y N O N O N R O e e e e S o n N D H W H FP F W N |- & FD S O O f F H N D O F F W N Y | & Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. ddd. PlaintiffROGER PERRY(referred to as “Plaintiff” for this paragraph) filed a claim with ADRon or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiffs filing of a claim with ADRin relevant part on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalfof Plaintiff and would decline to arbitrate this and any future claims involving CLS. eee. Plaintiff SCOTT SULLIVAN(referred to as “Plaintiff for this paragraph) filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADR in relevant part on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. Onor about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalfof Plaintiff and would decline to arbitrate this and any future claims involving CLS. fff. Plaintiff STEVE MAYNARD (referred to as “Plaintiff” for this paragraph)filed a claim with ADRon or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that -28- COMPLAINT — C T O D e o S N D H H H FP F Y W N Y —_ —_ — — 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff was contractually required to file the arbitration claim with AAA. On or about 2 September 28, 011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’srequested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. ggg. PlaintiffSUSAN STELLMAN(referred to as “Plaintiff” for this paragraph) filed a claim with ADR onor about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. hhh. PlaintiffTHOMAS MARTIN (referred to as “Plaintiff for this paragraph) filed a claim with ADR on or about August 12, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced byor on behalfof Plaintiff and would decline to arbitrate this and any future claims involving CLS. iii. Plaintiff WAYNE IKNER(referred to as “Plaintiff” for this paragraph) filed a claim with ADR onor about August 12, 2011. Byletter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRin relevant part on the basis that -29- COMPLAINT o l ;a Ol Ul Ul Ul UO mw Wm UN U N C O N F O U N O N m o N M N M N Y N N N N N N N S F F K F PS P P P O S e l l e c o t N O N F B W Y N Y K § O D OB O F e H N B N F F W N Y Plaintiff was contractually required to file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individualarbitration with AAA. Byletter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressed its intent not to pay AAA’srequested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by oron behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. jij. Plaintiff WILLIAM BANKER(referred to as “Plaintiff” for this paragraph)filed a claim with ADR onor about August 12, 2011. Byletter dated September 19, 2011, counsel for Defendants objected to Plaintiff's filing of a claim with ADRinrelevantpart on the basis that Plaintiff was contractually requiredto file the arbitration claim with AAA. On or about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. Byletter dated October10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by or on behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. kkk. Plaintiff WILLIAM PINKERTON(referred to as “Plaintiff” for this paragraph) filed a claim with ADR on or about August 18, 2011. By letter dated September 19, 2011, counsel for Defendants objected to Plaintiff'sfiling of a claim with ADRin relevantpart on the basis that Plaintiff was contractually required to file the arbitration claim with AAA. Onor about September 28, 2011, Plaintiff filed a claim for individual arbitration with AAA. By letter dated October 10, 2011, by and through counsel, Defendants objected to the arbitration filing with AAA and expressedits intent not to pay AAA’s requested fees. By letter dated October 20, 2011, AAA advised that it would refund any fees advanced by oron behalf of Plaintiff and would decline to arbitrate this and any future claims involving CLS. tll. The claimsfiled by Plaintiff KEMPLER with ADR and AAAaresubstantially similar to the claims filed by eachofthe otherplaintiffs herein as alleged above. Ml -30- COMPLAINT — O o f o N Y W B U H F F W Y W Y w e N M Y N N Y N Y N N N N N FS F S F F F F F T F F F S T H P F T B B o ta d A N P B W N S | o C O O H D U H F Y Y N - S F FIRST CAUSE OF ACTION Breach of Contract (Against all Defendants) 85. Plaintiffs incorporate by reference and re-allege asif fully stated herein all allegations set out in paragraphs | through 84. 86. Defendant and each and everyPlaintiff herein executed a documententitled Proprietary Information And Arbitration Policy/Agreement(“Arbitration Agreement”). 87. In its motion to compelarbitration filed in the Iskanian Action, Defendants took the position that, pursuant to the termsofthe Arbitration Agreement, “both parties agreed to arbitrate any andall disputes relating to Plaintiff's employmentand separation from CLS.” 88. By wayofits Arbitration Order, the court in the Iskanian Action orderedthe parties to individual arbitration and dismissed the class claims. In so doing, the court found the Arbitration Agreement to be an enforceable contract. | 89. The Arbitration Agreementrequires in relevant part that arbitration be conducted pursuantto the “dispute resolution rules and proceduresofthe American Arbitration Association...” By letter dated September 19, 2011, Defendants tookthe position that the Arbitration Agreementthus requires the parties to submitto arbitration solely through AAA. 90. Pursuant to the terms of the Arbitration Agreement, the Arbitration Order, and Defendants’ correspondence of September 19, 2011, each and every Plaintiff herein filed an arbitration demand with AAA dated September 28, 2011. 91. Each and every Plaintiff herein properly has performed all duties and obligations under the Arbitration Agreement. 92. Defendants failed and refused to participate in arbitration, rejected Plaintiffs’ properarbitration demands, and refused to pay AAA’s fee. In so doing, Defendants materially breached the terms of the Arbitration Agreement. 93. Due to Defendants’ refusal to allow Plaintiffs’ claims to proceed in the superior court and Defendants’ refusal to allow Plaintiffs’ claims to proceed in arbitration, Defendants -31- COMPLAINT o c C O S S B N A W F F W Y L H B O H N N O N R N O D N D R D R D N R w m a e a a e a o S N D H O H F f Ww W Y Y =| $| DO D O o C O H N HD R NA N F B W Y PP O K Y O C have deprived Plaintiffs of a forum in which to vindicate their rights and have prevented them from obtaining the monetary relief they are due. SECOND CAUSE OF ACTION Rescission (Against all Defendants) 94. Plaintiffs incorporate by reference and re-allege asif fully stated herein all allegations set out in paragraphs | through 93. 95. In its motion to compelarbitrationfiled in the Jskanian Action, Defendants took the position that, pursuantto the terms of the Arbitration Agreement, “both parties agreed to arbitrate any andall disputes relating to Plaintiff's employment and separation from CLS.” 96. By wayofits Arbitration Order, the court in the Iskanian Action ordered the parties to individualarbitration and dismissed the class claims. In so doing, the court found the Arbitration Agreementto be an enforceable contract. 97. The Arbitration Agreement requires in relevant part that arbitration be conducted pursuantto the “dispute resolution rules and procedures of the American Arbitration Association...” By letter dated September 19, 2011, Defendants took the position that the Arbitration Agreement thus requires the parties to submit to arbitration solely through AAA. 98. Pursuantto the terms of the Arbitration Agreement, the Arbitration Order, and Defendants’ correspondence of September 19, 2011, each and every Plaintiff herein filed an arbitration claim with AAA dated September 28, 2011. 99. Each and everyPlaintiff herein properly has performed all duties and obligations under the Arbitration Agreement. | 100. Defendants failed and refused to participate in arbitration, rejected Plaintiffs’ properarbitration claims,and refused to pay AAA’s fee. In so doing, Defendants materially breached the terms of the Arbitration Agreement. 101. Due to Defendants’ material breach of the Arbitration Agreementbyits refusal to allow Plaintiffs’ claims to proceed in the superior court and Defendants’ refusal to allow -32- COMPLAINT O o re o N D W H F F Ww W Y H = o O N w N H N Y N H N Y N H N N N O | H e K F F F F e E F E e — S S o N R K A B W N e K e O O D w m N D H R P W Y N - C O Plaintiffs’ claims to proceed in arbitration, Defendants have deprived Plaintiffs of a forum in which to vindicate their rights. THIRD CAUSE OF ACTION Specific Performance (Againstall Defendants) 102. Plaintiffs incorporate by reference and re-allege asif fully stated herein all allegationsset out in paragraphs | through 101. 103. In its motion to compelarbitration filed in the Iskanian Action, Defendants took the position that, pursuant to the terms of the Arbitration Agreement, “both parties agreed to arbitrate any and all disputes relating to Plaintiff's employment and separation from CLS.” 104. By way ofits Arbitration Order, the court in the Iskanian Action ordered the parties to individualarbitration and dismissed the class claims. In so doing, the court found the Arbitration Agreement to be an enforceable contract. 105. The Arbitration Agreement requiresin relevant part that arbitration be conducted pursuantto the “dispute resolution rules and procedures of the American Arbitration Association...” By letter dated September 19, 2011, Defendants took the position that the Arbitration Agreementthus requires the parties to submit to arbitration solely through AAA. 106. Pursuantto the terms of the Arbitration Agreement, the Arbitration Order, and Defendants’ correspondence of September 19, 2011, each and every Plaintiff herein filed an arbitration claim with AAA dated September28, 2011. 107. Each and every Plaintiff herein properly has performedall duties and obligations underthe Arbitration Agreement. 108. Defendants failed and refused to participate in arbitration, rejected Plaintiffs’ properarbitration claims, and refused to pay AAA’sfee. In so doing, Defendants materially breached the terms of the Arbitration Agreement. 109. Due to Defendants’ refusal to allow Plaintiffs’ claims to proceed in the superior court and Defendants’ refusal to allow Plaintiffs’ claims to proceed in arbitration, Defendants -33- COMPLAINT O o O o S N D H W H F F W V Y N O w R N Y N R N R R e O m B P W N O & C O O O O o TD N D B W H F& F W N Y Y F & 27 28 have deprived Plaintiffs of a forum in which to vindicate their rights. FOURTH CAUSE OF ACTION Declaratory Relief (Against all Defendants) 110. Plaintiffs incorporate by reference andre-allegeasif fully stated herein all allegations set out in paragraphs | through 109. 111. An actual controversy exists amongtheparties as to Plaintiffs’ and Defendants’ respective rights and duties under the Arbitration Agreement, as well as the continued viability and enforceability of the Arbitration Agreement. 112. Accordingly, Plaintiffs request a declaration as to the parties’ respective rights and duties under the Arbitration Agreement. Specifically, Plaintiffs request a declaration that: a. Defendants are in material breach ofthe Arbitration Agreement. b. Defendants and Plaintiffs only contractually agreed to arbitrate, if at all, through AAA. c. Plaintiffs are released from any contractual obligation they may have had to individually arbitrate their claims against Defendants. d. Plaintiffs may assert in this action their wage & hourclass claims previously alleged in the Iskanian Action. e. Each plaintiff's wage & hourclaimsasserted in the /skanian Action have been equitably tolled, at the very least, from the date each plaintiff first filed an arbitration claim with ADR. REQUEST FOR JURY TRIAL Plaintiffs request a trial by jury. PRAYER FOR RELIEF Plaintiffs pray for relief and judgment against Defendants,jointly and severally, as follows: Asto the First, Second and Third Causes of Action -34- COMPLAINT O o m e N D A U N F& F W N H N m o N H N Y N Y N N N N N N N O E e RP O R e E R E P E O E l l l o N K N A B R W O N Y K F O o O w H N D H K H F F W w N H | O& O 1. Forall actual, consequential and incidental losses and damages, according to proof; 2. For, in the alternative, either an order rescinding the Arbitration Agreement or an order requiring Defendantsto abide by the Arbitration Agreement by paying AAA’sfees and recognizingthe validity of Plaintiffs’ arbitration claims before AAA; and 3. For such otherrelief as the Court may deem equitable and appropriate. As to the Fourth Cause of Action 4. A declaration as to the parties’ respective rights and duties under the Arbitration Agreement. Specifically, Plaintiffs request a declaration that: a. Defendants are in material breach of the Arbitration Agreement. b. Defendants and Plaintiffs only contractually agreed to arbitrate, if at all, through AAA. c. Plaintiffs are released from any contractual obligation they may have had to individually arbitrate their claims against Defendants. d. Plaintiffs may assert in this action their wage & hourclass claims previously alleged in the Iskanian Action. e. Eachplaintiff's wage & hourclaimsasserted in the Iskanian Action have been equitably tolled, at the very least, from the date eachplaintiff first filed an arbitration claim with ADR. 5. For such other and further relief as the Court may deem equitable and appropriate. Dated: November18, 2011 Respectfully submitted, INITIATIVE AL GROUP APC By fi 4 fee Raul Perez Melissa Grant Suzy E. Lee Attorneys for Plaintiffs 35 - COMPLAINT EXHIBIT 1 PROPRIETARY INFORMATION AND ARBITRATION POLICY/AGREEMENT . This Proprietary Infonnation and Arbitration Policy/Agreement (“Policy/Agreement”) is entered into by and between KUNG-MINGCHANG(hereinafter referred to as “EMPLOYEE”), on the one hand, and CLS WORLDWIDE SERVICES, LLC (hereinafter, together with parent, subsidiary and affiliated corporations and entities, and their successors and assigns,referred to as “COMPANY?”), on the other hand. In consideration of the mutual representations, warranties, covenants and agreements set forth below, and for other good and valuable consideration, ineluding EMPLOYEE’S employment and/or continued employment and for other consideration, the receipt and sufficiency of which is hereby acknowledged, EMPLOYEE and COMPANY agreeas follows: 1. PROPRIETARY INFORMATON. a. EMPLOYEEunderstands that, by virtue of EMPLOYEE’S employment with COMPANY, EMPLOYEEwill acquire and be exposed to Proprietary Information of COMPANY.“Proprietary Information”includesall ideas, information and materials, tangible or intangible, not generally known to the public, relating in any manner to the business of COMPANY,its products andservices (including all trade secrets), its personnel (includingits officers, directors, employees, and contractors), its clients, vendors and suppliers and all others with whom it does business that EMPLOYEE learns or acquires during EMPLOYEE’S employment with COMPANY.Proprietary Information includes, butis not limited to, manuals, documents, computer programs and software used by COMPANY,users manuals, compilations of technical, financial, legal or other data, salary information, client or prospective clientlists, names of suppliers or vendors, client, supplier or vendor contact information, customer contact information, business referral sources, specifications, designs, devices, inventions, processes, business or marketing plansor strategies, pricing information, information regarding the identity of COMPANY’Sdesigns, mock-ups, prototypes, and works in progress, all other research and development information, forecasts, financial information, and al] other technical or business information. Proprietary Information does notinclude basic informationthat is generally known and used within the limousine industry. b. EMPLOYEE agrees to hold in trust and confidence all Proprietary Information during and after the period of EMPLOYEE’S employment with COMPANY. EMPLOYEEshall not disclose any Proprietary Information to anyone outside COMPANY without the written approval of an authorized officer of COMPANY or use any Proprietary Information for any purpose other than for the benefit of COMPANY as required by EMPLOYEE’S authorized duties for COMPANY. At all times during EMPLOYEE’S employment with COMPANY, EMPLOYEEshall comply with all of COMPANY’Spolicies, procedures, regulations or directives relating to the protection and confidentiality of Proprietary Information. Upon termination of EMPLOYEE’S employment with COMPANY, (a) EMPLOYEEshall not use Proprietary Information, or disclose Propnetary Information to anyone,for any purpose, unless expressly requested to do so in writing by an authorized officer >f COMPANY, (b) EMPLOYEEshall not retain or take with EMPLOYEEany Proprietary ‘nformation in a Tangible Form (defined below), and (c) EMPLOYEEshall immediately deliver o COMPANY any Proprietary Information in a Tangible Form that EMPLOYEE maythen or 1 of 9 CLS7303 thereafter hold or control, as well as all other property, equipment, documents or things that EMPLOYEEwasissued or otherwise received or obtained during EMPLOYEE’S employment with COMPANY. “Tangible Form” includes ideas, information or ‘materials in written or graphic form, on a cosnputer disc or other medium, or otherwise stored in or available through electronic, magnetic, videotape or other form. 2. NON-SOLICITATION _OF _ CUSTOMERS/CLIENTS. “EMPLOYEE acknowledges that, because of the nature of EMPLOYEE’S work for COMPANY, EMPLOYEP’Ssolicitation or serving of certain customers or clients would necessarily involve the unauthorized use or disclosure of Proprietary Information, and specifically trade secret information, as well as the proprietary relationships and goodwill of COMPANY. Accordingly, for one (1) year followingthe termination of EMPLOYEE’S employment with COMPANY for any reason, EMPLOYEEshall not, directly or indirectly, solicit, induce, or attempt to solicit or induce, any personor entity then known to be a customer orclient of COMPANY (a “Restricted Customer/Client”), to terminate his, her or its relationship with COMPANYfor any purpose, including the purpose ofassociating with or becoming a customeror client, whether or not exclusive, of EMPLOYEEor any entity of which EMPLOYEEis or becomes an officer, director, member, agent, employee or consultant, or otherwise solicit, induce, or attempt to solicit or induce, any Restricted Customer/Client to terminate his, her orits relationship with COMPANY for any other purpose or no purpose; provided, however, this Section 2 seeks to protect COMPANY’Strade secrets and/or to prohibit EMPLOYEEfrom improperly disclosing or using Proprietary Information. Accordingly, if, during EMPLOYEE’S employment, EMPLOYEE never learned nor was exposed to Proprietary Information regarding the identification of such customers/clients or customer/client contact information, pricing information, business developmentinformation, sales and marketing plan infomation, financial information or other Proprietary Information, EMPLOYEEshall not be restrained from such solicitation or attempted solicitation but EMPLOYEEshall not use any Proprietary Information during or in connection with any such solicitation, nor shall EMPLOYEE interfere or attempt to interfere with COMPANY’S contractual or prospective economic relationships with any customerorclient through unlawful or improper means. 3. NON-SOLICITATION OF PERSONNEL. During EMPLOYEE’S employment with COMPANY and for one (1) year thereafter, EMPLOYEEshall not, directly or indirectly, solicit, induce, or attempt to solicit or induce, any person known to EMPLOYEEto be an employee of COMPANY (each such person, a “Company Person”), to terminate, his or her employmentor other relationship with COMPANY for the purpose of associating with (a) any entity of which EMPLOYEEis or becomes an officer, director, member, partner, principal, agent, employeeor consultant, or (b) any competitor of COMPANY,or otherwise encourage any Company Person to terminate his or her employmentorotherrelationship with COMPANY for any other purpose or no purpose. 4. COMPETING ACTIVITIES. To protect COMPANY’S Proprietary Information, during EMPLOYEE’S employment with COMPANY, EMPLOYEEshal) not, engagein any activity that is or may be competitive with COMPANY in the limousine industry or otherwise in anystate in the United States, where COMPANY engages in business, whether or not for compensation including, but not limited to, providing services or selling products 2 of 9 CLS7304 . similar to those provided or sold by COMPANY,offering,orsoliciting or accepting an offer, to provide such services orto sell such products, or taking anyaction to form, or become employed by, a COMPANY orbusiness to provide such services or to sell such products; provided, however, nothing in this Policy/Agreement shal] be-construed as limiting EMPLOYEE’Sability to engage in any lawfuloff-duty conduct. 5. RETURN OF DOCUMENTS AND MATERIALS. Immediately upon the termination of EMPLOYEE’S employment or at any time prior thereto if requested by ‘COMPANY, EMPLOYEEshall return all records, documents, equipment, proposals, notes, lists, files, and any and all other materials, including but not limited to Proprietary Information in a Tangible Form, that refers, relates or otherwise pertains to COMPANY and its business, including its preducts and services, personnel, customers or clients (actual or potential), investors (actual or potential), and/or vendors and suppliers (actual or potential), or any of them, and any and all business dealings with said persons and entities (the “Returned Property and Equipment”) to COMPANYatits offices in Los Angeles, Califomia. EMPLOYEEis not authorizedto retain any copies or duplicates of the Returned Property and Equipmentor any Proprietary Information that EMPLOYEEobtained or received as a result of EMPLOYEE’S employment or other relationships with COMPANY. 6. PROPRIETARY INFORMATION OF OTHERS/COMPLIANCE WITH LAWS. EMPLOYEEshal] not breach any lawful, enforceable agreementto keep in confidence, or to réfrain from using, the nonpublic ideas, information or materials of a third party, including, but not limited to, a former employer or present or former customeror client. EMPLOYEEshall not bring any such ideas, information or materials to COMPANY, or use any such ideas, information or materials in connection with EMPLOYEE’S employment by COMPANY. EMPLOYEE shall comply with all national, state, local and other laws, regulations and ordinances. 7. RIGHTS AND REMEDIES UPON BREACH. If EMPLOYEEbreaches, or threatens to commit a breach of, any of the provisions of this Policy/Agreement, EMPLOYEE agrees that, in aid of arbitration and as a provisional remedy (or permanent remedy ordered by an arbitrator), COMPANY shall have the right and remedy to have each and every one of the covenants in this Policy/Agreementspecifically enforced and the right and remedy to obtain temporary and permanent injunctive relief, it being acknowledged and agreed by EMPLOYEE that any breach or threatened breach of any of the covenants and agreements contained herein would cause irreparable injury to COMPANY and that money damages would not provide an adequate remedy at law to COMPANY. Moreover, if EMPLOYEE breaches or threatens to commit a breach of this Policy/Agreement during EMPLOYEE’S employment with COMPANY, EMPLOYEE may be subject to the immediate termination of EMPLOYEE’S employment. Policy/Agreement, the prevailing Party shall be entitled to recoverall reasonable attomeys’fees, costs and expenses, including any expert fees, which were incurred by that Party in connection with any such proceeding. 8. SEVERABILITY/BLUE-PENCIL. EMPLOYEEacknowledges and agrees that (a) the covenants and agreements contained herein are reasonable and valid in geographic, In any proceeding seeking to enforce Sections 1 through 6 of this. CLS7305 temporal and subject matter scope andin all other respects, and do not impose limitations greater thanare necessary to protect the goodwill, Proprietary Information, and other business interests of COMPANY;(b)if any arbitrator (or a court when COMPANYseeks a provisional remedy in aid ofarbitration) subsequently determisies that any of such covenants or agreements, or any part thereof, is invalid or unenforceable, the remainder of such covenants and agreements shall not thereby be affected andshall be given full effect without regard to the invalid portions; and (c) if any arbitrator (or a court when COMPANY seeksa provisional remedy in aid ofarbitration) determines that any of the covenants and agreements, or any part thereof, is invalid or unenforceable ‘because of the duration or scope of such provision, such arbitrator (or a court when COMPANY seeks a provisional remedy in aid of arbitration) shall have the. power to reducethe duration or scope ofsuch provision,as the case may be, and,in its reduced form, such provision shall then be enforceable to the maximum extent permitted by applicable law. EMPLOYEEintends to and hereby confers jurisdiction to enforce each and every one of the covenants and agreements contained in Sections 1 through 7 of this Policy/Agreement upon the arbitrators (or courts when COMPANY seeksa provisional remedy in aid of arbitration) of any jurisdiction within the geographic scope of such covenants and agreements, andif the arbitrator (or a court when COMPANY seeksa provisional remedyin aid of arbitration) in any one or moreof such jurisdictions hold any such covenantor agreement unenforceable by reason of the breadth or scope or otherwise, it is the intention of EMPLOYEEthatsuch determination shall not bar or in any way affect COMPANY’Srightto the relief provided above in any other jurisdiction within the geographic scope of such covenants and agreements, as to breaches of such covenants and agreements in such other respective jurisdictions, such covenantsand . agreements as they relate to each jurisdiction being, for this purposes, severable into diverse and independent covenants and agreements. 9. CONFIRMATION OF AT-WILL EMPLOYMENT. Unless EMPLOYEEand COMPANY haveotherwise entered into an express, written employment contract or agreement for a specified term, EMPLOYEE and COMPANY acknowledge and agree that: (a) EMPLOYEE’S employment with COMPANY is andshall be at all times on an at-will basis, and COMPANY or EMPLOYEE may terminate EMPLOYEE’S employmentat any time, for any reason, with or without cause or advance notice; (b) nothing in this Policy/Agreement or in COMPANY’S EMPLOYEE manuals, handbooks or other written materials, and no oral statements or representations of any COMPANY officer, director, agent or employee, create or are intended to create an express or implied contract for employment or continuing employment; (c) nothing in the Policy/Agreement obligates COMPANY to hire, retain or promote EMPLOYEE; (d) all definitions, terms and conditions of this Policy/Agreement apply for purposesofthis Policy/Agreement, and for no other purpose, and donotalter or otherwise effect the at-will status of EMPLOYEE’S employment with COMPANY;and(e) no representative of COMPANYhasanyauthority to enter into any express or implied, oral or wntten agreements that are contrary to the terms and conditions of this Policy/Agreement or to enter into any - express or implied contracts for employment(other than for at-will employment) except for the President, Chief Executive Officer or Chief Operating Officer of COMPANY, and any agreement between EMPLOYEEandthe President, Chief Executive Officer or Chief Operating Officer must be in writing and signed by EMPLOYEEand the President, Chief Executive Officer or Chief Operating Officer. Anfo CLS7306 10. INFORMATION ON COMPANY PREMISES. EMPLOYEE acknowledges that, by virtue of EMPLOYEE’S employment with COMPANY, EMPLOYEEwill have use of the premises and equipment of COMPANYincluding the electronic mail systems, the computer system, internet access, and the voicemail system (collectively, the “COMPANY Information Systems”). EMPLOYEE acknowledges and agrees that (a) COMPANY Information Systems shall be used solely for COMPANY business and shall not be used for personal business, (b) EMPLOYEE has no right to privacy in any matter, file or information that is stored or transmitted on COMPANY Information Systems, and (c) COMPANY reserves the right to monitor or inspect any matter or file EMPLOYEE sends, stores, receives, or creates on COMPANYInformation Systems, even if they contain EMPLOYEE’Spersonal information or materials. In addition, EMPLOYEEacknowledges and agrees that (a) EMPLOYEEhas no right to privacy in any items, property, documents, materials, or other information that is contained, stored or transported in COMPANY’S vehicles, and (b) COMPANY reserves the night to monitor or inspect any items, property, documents, materials, or other information that is contained, stored or transported in COMPANY’S vehicles, evenif they contain EMPLOYEE’S personal property, information or materials. 11. GOVERNING LAW. This Policy/Agreement shall be construed, interpreted, and governed in accordance with either (a) the laws of the State of California, regardless of applicable conflicts of law principles, or (b) in the event of a breach of any of the covenants contained in Sections J through 6, the law of the State where such breach actually occurs, depending on whichever choice of law shall ensure to the maximum extent that the covenants shall be enforced in accordance with the intent of the Parties as reflected in this Policy/Agreement. 13. ENTIRE AGREEMENT/MODIFICATION/NO WAIVER. This Policy/Agreement (a) represent the entire agreement of the Parties with respect ‘to the subject matter hereof, (b) shall supersede any and all previous contracts, arrangements or understandings betweenthe Parties hereto with respectto the subject matter hereof, and (c) may not be modified or amended except by an instrumentin writing signed by eachofthe Parties hereto. 14. PARTIES IN _INTEREST/ASSIGNMENT/SURVIVAL. Neither this Policy/Agreement nor any ofthe rights, interests or obligations under this Policy/Agreement shall be assigned, in whole or in part, by operation of law or otherwise, by EMPLOYEE. COMPANY may sell, assign, and transfer all of its nght, title and interests in this Policy/Agreement without the prior consent of EMPLOYEE, whether by operation of law or otherwise, in which case this Policy/Agreemient shall remain in full force after such sale, assignmentor other transfer and may be enforced by (a) any successor, assignee or transferee of all or any part of COMPANY’Sbusiness as fully and completely as it could be enforced by COMPANY ifno such sale, assignmentortransfer had occurred, and (b) COMPANY inthe case of any sale, assignmentor othertransfer of a part, but not all, of the business. The benefits under this Policy/Agreement shall inure to and may be enforced by COMPANY, andits parent, subsidiary and affiliated corporations and entities, and their successors, transferees and assigns. EMPLOYEE’S duties and obligations under this Policy/Agreement shall survive the termination ofEMPLOYEE’S employment with COMPANY. Safo CLS7307 145. NOTIFICATION TO NEW EMPLOYER. EMPLOYEEunderstands that the various terms and conditions of this Policy/Agreement shall survive and continue after EMPLOYEE’S employment with COMPANY terminates. Accordingly, EMPLOYEE hereby expressly agrees that COMPANY may inform EMPLOYEE’S new employer regarding EMPLOYEE’Sduties and obligations under this Policy/Agreement. 16. ARBITRATION. a. EMPLOYEE and COMPANY agreethat any and all disputes that may arise in connection with, arise out of or relate to this Policy/Agreement, or any dispute that relates in any way, in whole or in part, to EMPLOYEE’S hiring by, employment with or separation from COMPANY,or any other dispute by and between EMPLOYEE,on the one _hand, and COMPANY,its parent, subsidiary and affiliated corporations and entities, and each of their respective officers, directors, agents and employees (the “Company Parties”), on the other hand, shall be submitted to binding arbitration before a neutral arbitrator (who shall be a retired judge) pursuant to the then-current dispute resolution rules and procedures of the American Arbitration Association (“AAA”), or such other rules and procedures to which the Parties may otherwise agree. This arbitration obligation extends to any and ail claims that may arise by and between the Parties and, except as expressly required by applicable law, extends to, without limitation, claims or causes of action for wrongful termination, impairment ofability to compete in the open labor market, breach of express or implied contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, breach of duty of loyalty, fraud, misrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, disability, loss of future eamings, and claims under any applicable state Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal equal employment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964, as amended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988, as amended, the Americans With Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Family Medical Leave Act, as amended, the Employee Retirement Income Security Act of 1974, as amended, the Age Discrimination in Employment Act, as amended, the California Fair Employment and Housing Act, as amended, the California Family Rights Act, as amended, the California Labor Code, as amended, the California Business and Professions Code, as amended, and all other applicable state or federal law. COMPANY and EMPLOYEEunderstand and agree that arbitration of the disputes and claims covered by this Policy/Agreement shall be the sole and exclusive method of resolving any andall existing and future disputes or claims arising by and between the Parties; provided, however, nothing in this Policy/A greement should be interpreted as restricting or prohibiting EMPLOYEE from filing a charge or complaint with a federal, state, or local administrative agency charged with investigating and/or prosecuting complaints under any applicable federal, state or municipal law or regulation, but any dispute or claim that is not resolved through the federal, state, or local agency must be submitted to arbitration in accordancewith this Policy/Agreement. b. COMPANY and EMPLOYEEfurther understand and agree that claims for workers’ compensation benefits, unemployment insurance, or state or federal disability insurance are not covered by this Policy/Agreement and shall therefore be resolved in any 6 of 9 CLS7308 appropriate forum,including the Workers’ Compensation Appeals Board, as required by the laws then in effect. Furthermore, except as otherwise required under applicable law, (1) EMPLOYEE and COMPANY expressly intend and agree that class action and representative action procedures shall not be asserted, nor will they apply, in any arbitration pursuant to this Policy/Agreement; (2) EMPLOYEE and COMPANYagree that each will not assert class action or representative action claims against the other in arbitration or otherwise; and (3) each of EMPLOYEE and COMPANY shall only submit their own, individual claims in arbitration and will not seek to represent the interests of any otherperson. c. Any demandforarbitration by either EMPLOYEE or COMPANY shail be served or filed within the statute of limitations that is applicable to the claim(s) upon which arbitration is sought or required. Any failure to demand arbitration within this time frame and according to theserules shall constitute a waiver ofall rights to raise any claims in any forum arising out of any dispute that was subject to arbitration to the same extent such claims would be barred if the matter proceeded in court (along with the same defenses to such claims). d. The Parties shall select a mutually agreeable arbitrator (who shall be a retired judge) from a list of arbitrators provided by ADR Services, ARC, Judicate West, or JAMS/Endispute. If, however, the Parties are unable to reach an agreement regarding the selection of an arbitrator, without incorporating the California Arbitration Act into this Policy/Agreement, the Parties nevertheless agree that a neutral arbitrator (who shall bea retired judge) shall be selected or appointed in the manner provided underthe then-effective provisions of the California Arbitration Act, California Code of Civil Procedure section 1282 et seq. e. The arbitration shall take place in Los Angeles, California, or, at EMPLOYEE’S option, the state and county where EMPLOYEE works or last worked for COMPANY. f. This arbitration agreement shall be governed by and construed and enforced pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and not individual state laws regarding enforcementofarbitration agreements or otherwise. The Arbitrator shall allow reasonable discovery to prepare for arbitration of any claims. At a minimum, without adopting or incorporating the California Arbitration Act into this Policy/Agreement, the Arbitrator shall allow at least that discovery that is authorized or permitted by California Code of Civil Procedure section 1283.05 and any other discovery required by law in arbitration proceedings. Nothing in this Policy/Agreementrelieves either Party from any obligation they may have to exhaust certain administrative remedies before arbitrating any claims or disputes under this Policy/Agreement. g. In any arbitration proceeding under this Policy/Agreement, the Arbitrator shal] issue a written award that sets forth the essential findings and conclusions on which the award is based. The Arbitrator shal] have the authonty to award anyrelief authorized by law in connection with the asserted claims or disputes. The Arbitrator’s award shall be subject to correction, confirmation, or vacation, as provided by any applicable governing judicial review of arbitration awards. TnafO CLS7309 h. . Unless otherwise provided or permitted underapplicable law, COMPANY shall pay the arbitrator’s fee and any other type of expense or cost that EMPLOYEE would not be required to bear if he or she werefree to. bring the dispute or claim in court as well as any other expenseor cost thatis unique to arbitration. Except as otherwise required under applicable law (or the Parties’ agreement), COMPANY and EMPLOYEEshall each pay their own attorneys’ fees and costs incurred in connection with the arbitration, and the arbitrator will not have authority to award attorneys’ fees and costs unless a statute or contract at issve in the dispute authorizes the award of attorneys’ fees and costs to the prevailing Party, in which case the arbitrator shall have the authority to make an award of attorneys’ fees and costs to the same extent available under applicable law. If there is a dispute as to whether COMPANYor EMPLOYEEis the prevailing party in the arbitration, the Arbitrator will decidethis issue. i. The arbitration of disputes and claims under this Policy/Agreemént shal] be instead ofa trial before a court or jury and COMPANY and EMPLOYEEunderstandthat they are expressly waiving any andall rights to a trial before a court and/or jury regarding any disputes and claims which they now haveor which they mayin the future have that are subject to arbitration under this Policy/Agreement; provided, however, nothing in this Policy/Agreement prohibits either Party from seeking provisional remedies in court in aid of arbitration including temporaryrestraining orders, preliminary injunctions and other provisional remedies. 17. COMPANY POLICY. The foregoing provisions of this Policy/Agreement are binding upon. EMPLOYEE and COMPANYirrespective of whether EMPLOYEE and/or COMPANYsignsthis Policy/Agreement. The terms and conditions of this Policy/Agreement describe some of COMPANY’S policies and procedures and supplement such policies and procedures set forth in COMPANY’S EMPLOYEEhandbook and other policy and procedure statements or communications ofCOMPANY. EMPLOYEE’S and COMPANY’Ssignatures on this Policy/Agreement confirms EMPLOYEE’S and COMPANY’S knowledgeofsuch policies and procedures and EMPLOYEE’S and COMPANY’S agreement to comply with suchpolicies, procedures, and terms and conditions of employment and/or continuing employment. EMPLOYEE affirmatively represents that EMPLOYEE has other comparable employment opportunities available to EMPLOYEE (other than employment with COMPANY) and EMPLOYEEfreely and voluntarily enters into this Policy/Agreement and agrees to be bound by the foregoing without any duress or undue pressure whatsoever and without relying on any promises, representations or warranties regarding the subject matter of this Policy/Agreement except for the express termsofthis Policy/Agreement. CLS7310 To acknowledge EMPLOYEE’Sreceipt of this Policy/Agreement, EMPLOYEEhas signed this acknowledgement on the day and year written below; but, EMPLOYEEand COMPANYare bound bythe Arbitration Policy/Agreement with or without signing this Policy/Agreement. EMPLOYEE “~~ Chang / ling~ pars Name: Kung-Bing ChatlZ Address: /Zy 39 st?Sfany Ake eerie CA F073 72004Date: /2 = 232 be _— CLsP DE SERVICES, LLC Hs << Ce Date: 12_{2.2. i> _ By: _ , 2004 Los_Angeles:362501.2 820000.1684 CLS7311 EXHIBIT 2 OR IG IN AL o w o e V M D A Ww W f F Y Y T I F I T / S S 10 8} 12 14 15 16 17|| 19 20 21 22 23 _ 24 25 26 27 28 DAVID F. FAUSTMAN,SBN 081862 YESENIA GALLEGOS, SBN231852 NAMAL MUNAWEERA,SBN 247373 FOX ROTHSCHILD LLP 1800 Century Park East, Suite 300 Los Angeles, California 90067-3005 Tel 310.598-4150 / Fax 310.556-9828 Email: dfaustman@foxrothschild.com Email: nmunaweera@foxrothschild.com Court Plaza North, 25 Main Street Hackensack, NJ 07602-0800 Telephone: (201) 525-6294 Facsimile: (201) 678-6294 Attorneys for Defendant ARSHAVIR ISKANIAN,individually, and on behalf of other members of the general public similarly situated, . Plaintiff, VS. CLS TRANSPORTATION LOS ANGELES LLC, a Delaware corporation; Defendant WORLDWIDE SERVICES, LLC, a Delaware corporation; EMPIRE INTERNATIONAL, LTD., a New Jersey Corporation; GTS HOLDINGS,INC., a Delaware corporation and DOES1 through 10,inclusive, Defendants. CLS TRANSPORTATION LOS ANGELES LLC LEO V. LEYVA,NJ Bar No. 39645 (Admitted Pr o Hac Vice) COLE, SCHOTZ, MEISEL, FORMAN & LEONAR D,PA SUPERIOR COURT OF THE STATE OF CALI FORNIA IN AND FOR THE COUNTY OF LOS ANGELES CASE NO. BC356521 {Ordered Consolidated w/ BC381065) Judge: Hon. Robert L. Hess {RROPOSED| ORDER GRANTING DEFENDANT'S MOTION FOR RENEWALOFITS PRIOR MOTION FOR ORDER COMPELLING ARBITRATION, DISMISSING CLASS CLAIMS, AND STAYING ACTION PENDING THE OUTCOMEOF ARBITRATION Date: June 13, 2011 Time: 8:30 a.m. Dept.: 24 Complaint Filed: August 4, 2006 Class Certified: August 24, 2009 Post-Mediation Conf.: May 2, 201] Trial Date: None THEQUTSQMAEPF ARBITRATION : } {PROPOSED] ORDER GRANTING DEFENDANT'S MOTION FOR RENEWALOFITS PRIOR MOTION FOR ORDER COMPELLING ARBITRATION,DISMISSING CLASS CLAIMS, AND STAYING ACTION PENDING 627 Defendant CLS Tr ansportation Los Angeles LLC’s (“ CLS”or Defenda nt”) Motion for Renewal ofIts Pri or Motion for an O rder Compelling Arbitration, Dismi ssing the Class Cl aims, and Staying the Act ion Pendingthe Out comeof Arbitratio n, came on for hear ing on June 13, 2011, at 8:30 a.m. before this Court in Department 24, the Honorable Rob ert L. Hess presid ing. David F. Faustma n appeared on beh alf of Defendant, and Gene William s appeared on beh alf of Plaintiff Arshavir Iskanian andall c lass members (“P laintiffs”). After full consider ation of the evide nce, memorandu m of points and au thorities, declarations and e xhibits submitted by each party, as well as counsels’ oral arguments, I TIS HEREBY ORDE RED THAT: 1. Based on n ew law rendered i n AT&T Mobility v. Conception (Apr il 27, 2011) 563 U.S. __ (2011), D efendant's Motio n for RenewalofI ts Prior Motion f or an Order Compe lting Arbitration, Dismi ssing the Class Cl aims, and Staying the Action Pendin g the Outcome of Arbitration is GRA NTED. 2. Because Pl aintiff and Defend antboth executed a valid an enforce able arbitration agreement and cla ss action waiver, D efendant’s Motio n for an Order Com pelling Arbitratio n, Dismissing the Cl ass Claims, and S taying the Action Pending the Outco me of Arbitration i s GRANTED. 3. Plaintiff's class claims are he reby dismissed wit h prejudice, and th e remainder of the action is stayed pending the outco me of arbitration o f Plaintiff's indivi dual claims. Dated: 6 / 3 , 2011 Mp.ot NL. HON. ROBERTL. HESS T T s 9 T L I B 2 {PROPOSED} ORD ER GRANTING DE FENDANT'S MOTI ON FOR RENEWAL OFITS PRIOR MO TION FOR ORDER COMPELL ING ARBITRATIO N, DISMISSING C LASS CLAIMS, AN D STAYING ACTI ON PENDING THEQUIGOMEPF ARBITRATION 628 EXHIBIT 3 Ror. DEMAND FOR ARBITRATION before ADR Services,Inc. CLAIMANT(S): [sreg Kempler Representative/Attorney (if known) Representative/Attorney (if known) Name:Raul Perez (SBN 174687) Name: Law Firm:Initiative Legal Group APC Law Firm: heeesnash naan Telephone:(310)556-5637 Telephone: Facsimile: (310)861-9051 Facsimile: Email: rperez@initiativelegal.com Email: - RESPONDENT(S): |see Attachment A i.Representative/Attorney(if known) Representative/Attorney(ifknown) Name: David F. Faustman (SBN 081862) Law Firm: Fox Rothschild LLP Address: 1800 Century Park East, Suite 300 FESS") os Angeles, CA 90067-3005 Telephone:(310) 598-4150 Facsimile: (310) 556-9828 Email: dfaustman@foxrothschild.com Name:Leo V. Leyva (NJ Bar No. 39645) Law Firm: Cole, Schotz, Meisel, Forman & Leonard, PA Address: Court Plaza North, 25 Main Street FESS: Hackensack, NJ 07602-0800 Telephone: (201) 525-6294 Facsimile:(201) 678-6294 Email: NATURE OF DISPUTE: Claimant hereby demandsthat you submit the following dispute to arbitration. See Attachment B (attach additional pages ifnecessary) ARBITRATION AGREEMENT: This demand is made pursuantto the arbitration agreement you made on the instrument described as: See Court Order (please attach a copy ofthe arbitration agreement) MEDIATION:If mediation in advanceofthe arbitration is desired, or required, please check here and ADR Services,Inc. will assist the parties in coordinating a mediation proceedingfirst: r Demandfor Arbitration before ADR Services,inc. Page 1 of 2 Demandfor Arbitration i i : Gi .Claimant's Name reg Kempler before ADRServices, Inc. Respondent's Name:See Attachment A CLAIM OR RELIEF SOUGHT(describe): See Attachment C (attach additional pagesif necessary) OTHER RELIEF SOUGHT: Ik Attorneys Fees Ki Interest - Other: Ji Arbitration Costs . jx} Punitive / Exemplary CS RESPONSE: You mayfile a response and counter-claim to the claim stated in the previous page. Send the original of the response and counter-claim to the Claimant at the address stated above, with copies to ADR Services, Inc. office checked below: DEMAND PARTY'S SIGNATURE(maybe signed by an attorney): August 12, 2011 Signature a Date Raul Perez Print Name Title (if Party is a company) DIRECTIONS FOR SUBMITTING DEMAND FOR ARBITRATION 1. Please serve a copy of the Demandfor Arbitration, pre-dispute Arbitration Agreement, and any additional claim documents to the opposing counsel(if the opposing side is not or not yet represented by counsel, please submit the aforementioned documents to the opposing party). 2. Pleaseinclude a check payable to ADR Services,Inc. for the required, non-refundable $300 Initial Filing Fee and submit to the appropriate ADR Services,Inc. office along with your Demandfor Arbitration. 3. Please submit a copy of the Demandfor Arbitration, pre-dispute Arbitration Agreement, and any additional claim documentsto the appropriate ADR Services,Inc.office: pe Century City / West Los Angeles - Downtown Los Angeles 4900 Avenueof the Stars, Suite 250 915 Wilshire Boulevard, Suite 1900 Los Angeles, Califomia 90067 Los Angeles, California 90017 Tel (310) 201-0010 / Fax (310) 201-0016 : Tel (213) 683-1600 / Fax (213) 683-9797 7 San Francisco / Northern California [ San Diego 50 FremontStreet, Suite 2110 225 Broadway, Suite 1400 San Francisco, California 94105 San Diego,California 92101 Tel (415) 772-0900 / Fax (415) 772-0960 Tel (619) 233-1323 / Fax (619) 233-1324 rm Orange County [7 San Jose / Silicon Valley 18000 MacArthur Boulevard, Suite 550 . 50 Fremont Street, Suite 2110 Irvine, California 92612 San Francisco, California 94105 Tel (949) 863-9800 / Fax (949) 863-9888 Tel (415) 772-0900 / Fax (415) 772-0960 4. If you have any questions regarding the Demandfor Arbitration or procedures regarding the Binding Arbitration, please feelfree to visit our website at www.adrservices.org or contact the filing office above and askfor the "Arbitration Coordinator’. : >Byintform ~~” Demandfor Arbitration before ADR Senices, Inc. Page 2 of 2 AttachmentA RESPONDENTS: CLS Transportation of Los Angeles, LLC; CLS Worldwide Services, LLC; Empire International, Ltd.; Empire/CLS Worldwide Chauffeured Services; GTS Holdings, Inc.; David Seelinger Attachment B NATURE OF DISPUTE: Claimant hereby demandsthat you submit the following disputes to arbitration: (1) Violation of California Labor Code §§ 1194, 1197 and 1197.1 (Failure to Pay Minimum Wage); (2) Violation of California Labor Code §§ 510 and 1198 (Unpaid Overtime); (3) Violation of California Labor Code §§ 201 and 202 (Non-paymentof Wages Upon Termination); (4) Violation of California Labor Code § 226(a) (Improper Wage Statements); (5) Violation of California Labor Code § 226.7(a) (Missed Rest Periods); (6) Violation of California Labor Code §§ 226.7(a) and 512 (Missed Meal Periods); (7) Violation of California Labor Code §§ 221 and 2800 (Improper Withholding of Wages and Non- Indemnification of Business Expenses); (8) Violation of California Labor Code § 351 (Confiscation of Gratuities); and (9) Violation of California Business & Professions Code § 17200,et seq. Attachment C CLAIM/RELIEF SOUGHT: As to the California Labor Code §§ 1194, 1197, and 1197.1 claims (Minimum Wages): 1. For general unpaid wages at overtime wage rates and such general and special damages as may be appropriate; 2. For statutory wage penalties pursuant to California Labor Code §1197.1 in amount as may be established according to proof. 3. For pre-judgmentinterest on any unpaid overtime compensation from the date such amounts were due; 4. For reasonable attorney's fees and forcosts of suit incurred herein pursuant to California Labor Code § 1194(a); 5. For liquidated damagespursuantto California Labor Code § 1194.2; 6. Forcivil penalties pursuant to California Labor Code § 2699(f) and (g) in the amountof $100 dollars for each violation per pay period fortheinitial violationand $200 for each aggrieved employee per pay period for each subsequentviolation, plus costs and attorneys’ fees for violation of California Labor Code §§ 510, 1194 and 1198; and 7. For such other and further relief as the Arbitrator may deem equitable and appropriate. As to the California Labor Code §§ 510 and 1198 claims (Unpaid Overtime): 1. For general unpaid wages at overtime wage rates and such general and special damages as may be appropriate; 2. For pre-judgmentinterest on any unpaid overtime compensation from the date such amounts were due; 3. For reasonable attorney's fees and for costs of suit incurred herein pursuant to California Labor Code § 1194(a); 4. For civit penalties pursuant to California Labor Code § 2699(f) and (g) in the amountof $100 dollars - for each violation per pay period for the initial violation and $200 for each aggrieved employee per pay period for each subsequentviolation, plus costs and attorneys’ feesfor violation of California Labor Code §§ 510, 1194 and 1198; and 5. For such other and furtherretief as the Arbitrator may deem equitable and appropriate. As to the California Labor Code §§ 201 and 202 claims (Non-payment of Wages Upon Termination): 1. For all actual, consequential and incidental losses and damages, according to proof; 2. For statutory penalties pursuantto California Labor Code § 203for Plaintiff and all other class members whohaveleft Defendants’ employ; 3. For costs of suit incurred herein; 4. Forcivil penalties pursuant to California Labor Code § 2699(f) and (g) in the amount of $100 dollars for each violation per pay period fortheinitial violation and $200 for each aggrieved employee per pay period for each subsequentviolation, plus costs and attorneys’ fees for violation of California Labor Code §§ 201, 202 and 203; and 5. For such other and furtherrelief as the Arbitrator may deem equitable and appropriate. As to the California Labor Code § 226(a) claims (Improper Wage Statements): 1. For all actual, consequential and incidental losses and damages, according to proof; 2. For statutory penalties pursuant to California Labor Code § 226(e) and 226.3; 3. For reasonable costs and attorney’s fees pursuantto California Labor Code § 226(e); - 4. Forcivil penalties pursuantto California Labor Code § 2699(f) and (g) in the amountof $100 dollars for each violation per pay period for theinitial violation and $200 for each aggrieved employee per pay period for each subsequentviolation, plus costs and attorneys’ fees for violation of California Labor Code § 226(a); and . 5. For such other andfurtherrelief as the Arbitrator may deem equitable and appropriate. As to the California Labor Code § 226.7(a) (Missed Rest Periods): 1. For all actual, consequential, and incidental losses and damages, according to proof; 2. For statutory penalties pursuantto California Labor Code § 226.7(b); 3. For costs of suit incurred herein; 4. For civil penalties pursuant to California Labor Code § 2699(f) and (g) in the amount of $100 dollars for each violation per pay period forthe initial violation and $200 for each aggrieved employee per pay period for each subsequentviolation, plus costs and attorneys’ fees for violation of California Labor Code § 226.7(a); and 5. For such other and furtherrelief as the Arbitrator may deem appropriate. Asto the California Labor Code §§ 226.7(a) and 512 (Missed MealPeriods): 1. For atl actual, consequential, and incidental losses and damages, according to proof; 2. For statutory penalties pursuantto California Labor Code § 226.7(b); 3. For costs of suit incurred herein; 4. For civil penalties pursuantto California Labor Code § 2699(f) and (g) in the amount of $100 dollars for each violation per pay period for the initial violation and $200 for each aggrieved employee per pay period for each subsequentviolation, plus costs and attorneys’ fees for vioiation of California Labor Code §§ 226.7(a) and 512; and 5. For such other and furtherrelief as the Arbitrator may deem appropriate. Asto the California Labor Code §§ 221 and 2800 (!mproper Withholding of Wages and Non- Indemnification of Business Expenses): ; 1. For all actual, consequential and incidental losses and damages, according to proof; 2. For costs of suit incurred herein; "3. For civil penalties pursuant to California Labor Code § 225.5; 4. For civil penalties pursuant to California Labor Code § 2699(f) and (g) in the amountof $100 dollars for each violation per pay periodfor theinitial violation and $200 for each aggrieved employee per pay period for each subsequentviolation, plus costs and attorneys’ fees for violation of California Labor Code §§ 221 and 2802; and 5. For such other andfurtherrelief as the Arbitrator may deem appropriate. Asto the California Labor Code § 351 (Confiscation of Gratuities): 1. For all actual, consequential and incidental Josses and damages, according to proof; 2. For restitution of confiscated gratuities to all aggrieved employees and class members and prejudgmentinterest from the day such amounts were due and payable; 3. For costs of suit incurred herein; 4. Forcivil penalties pursuant to California Labor Code § 2699(f) and (g) in the amountof $100 collars for each violation per pay period for the initial violation and $200 for each aggrieved employee per pay period for each subsequentviolation, plus costs and attorneys’ fees for violation of California Labor Code § 351; and 5. For other such and furtherrelief as the Arbitrator may deem appropriate. Asto the California Business & Professions Code § 17200, et seq. claims: 1. For disgorgementof any and al! “unpaid wages” and incidental losses, according to proof; 2. For restitution of “unpaid wages”to all class members and prejudgmentinterest from the day such ~ amounts were due and payable; 3. For the appointmentof a receiver to receive, manage and distribute any and all funds disgorged from Deferidants and determined to have been wrongfully acquired by Defendants as a result of violations of California Business & Professions Code § 17200 et seq.; 4. For reasonable attorney’s fees that Plaintiff and other membersofthe class are entitled to recover underCalifornia Code of Civil Procedure § 1021.5; 5. For costs of suit incurred herein; and For such other andfurtherrelief as the Arbitrator may deem equitable and appropriate. SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES DATE: 03/13/07 DEPT. 24 HONORABLE ROBERT L. HESS JUDGE|| G. CHARLES DEPUTY CLERK HONORABLE | JUDGE PRO TEM ELECTRONIC RECORDING MONITOR ¥ B. BELL C/A Deputy Sheriff} C. Crawley Reponer 8:33 am}|BC356521 Plainciff Matthew Theriault (x) ARSHAVIR ISKANTAN vs CLS TRANSPORTATION LOS ANGELES Counsel Defendant Counsel Nima Shivayi (x) NATURE OF PROCEEDINGS: The The motion is granted. The nor The Theat 8:30am November 13, 2007.Notice is waived. ww we Page 1 of aR “e)ny cause is called for hearing. MOTION OF DEFENDANT CLS TRANSPORTATION OF LOS ANGELES FOR ORDER COMPELLING ARBITRATION, DISMISSING CLASS ACTION PENDING THE OUTCOME OF ARBITRATION; Court finds the agreement is neither procedurally substantively unconsciable. matter will be stayed pending arbitration. case is set for post arbitration status conference MINUTES ENTERED 03/13/071 DEPT. 24 COUNTY CLERK IN IT IA TI VE L E G A L G R O U P A P C 18 00 C E N T U R Y P A R K EA ST , S E C O N D F L O O R , L O S A N G E L E S , C A U F O R N I A 30 05 7 O o o N D H N H F& F W H N N Y O W N N H N pe ek e e e e m e m e RB S R P R R R B E SF G e r w A A B a A R P a n a S | Delaware corporation; EMPIRE Raul Perez (SBN 174687) RPerez@InitiativeLegal.com Melissa Grant (SBN 205633) MGrant@lnitiativeLegal.com Suzy E. Lee (SBN 271120) SuzyLee@InitiativeLegal.com Initiative Legal Group APC 1800 Century Park East, 2nd Floor Los Angeles, California 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 Attorneys for Plaintiff Arshavir Iskanian SUPERIOR COURTOF THE STATE OF CALIFORNIA FOR THE COUNTYOF LOS ANGELES ARSHAVIR ISKANIAN,an individual, Case No. BC 356521 Plaintiff, [Assigned for All Purposes to: The Honorable Robert Hess} VS. CLASS ACTION CLS TRANSPORTATION LOS ANGELES,LLC,a Delaware corporation; PROOF OF SERVICE CLS WORLDWIDESERVICES, LLC, a INTERNATIONAL, LTD, a New Jersey Corporation; GTS HOLDINGS,INC, a Delaware corporation and DOES| through 10, inclusive, Defendants, PROOF OF SERVICE IN IT IA TI VE L E G A L G R O U P A P C 4 8 0 0 C E N T U R Y P A R K E A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 9 0 0 6 7 u o A e N N DB D Ww W F F W Y N Y = N m NY O H N P B H N K N N Y N O R O m m m m e m e e e o n N A A H F F W H P B —| =- D T D O f e N H n A H w F F W D NH N — - S& S PROOFOFSERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employedin the State of California, County of Los Angeles. I am over theage of 18 and not a party to the within suit; my business address is 1800 Century Park East, 2"° Floor, Los Angeles, California 90067. On August 17, 2011, I served the documents described as: See ATTACHMENT1 forlist of documents on theinterested parties in this action by sending [ the original [or] [V’] a true copy thereof[v’] te interested parties as follows[or] [ ] as stated on the attached service list: David Faustman, Esq. Yesenia Gallegos, Esq. FOX ROTHSCHILD LLP 1800 Century Park East, Suite 300 Los Angeles, CA 90067 [ ] BY MAIL (ENCLOSEDINA SEALED ENVELOPE): I deposited the envelope(s) for mailing in the ordinary course of business at Los Angeles, California. I am “readily familiar” with this firm’s practice of collection andprocessing correspondence for mailing. Under thatpractice, sealed envelopes are deposited with the U.S.Postal Service that same day in the ordinary course ofbusiness with postage thereon fully prepaid at Los Angeles. California. [ ] BY E-MAIL:I hereby certify that this document was served from Los Angeles, California, by e-mail delivery on the parties listed herein at their most recent known e- mail address or e-mail of record in this action. { ] BY FAX:I herebycertifythat this document was served from Los Angeles, California, by facsimile delivery on the parties listed herein at their most recent fax number of recordin this action. [¥] BY PERSONAL SERVICE:| delivered the document, enclosed in a sealed envelope, by hand to the offices of the addressee(s) named herein. [ } BY OVERNIGHT DELIVERY:I am “readily familiar” with this firm’s practice of collection and processing correspondence for overnight delivery. Under that practice, overnight packagesare enclosed in a sealed envelope with a packing slip attached thereto fully prepaid. The packagesare picked up bythecarrier at our offices or delivered by ouroffice to a designated collectionsite. I declare under penalty ofperjury under the laws of the State of California that the foregoing is true and correct. Executed this August 17, 2011, at Los Angeles, Califorpfa, Navid Zivari Type or Print Name Signage”PROOF OF SERVICE IN IT IA TI VE L E G A L G R O U P A P C 18 00 CE NT UR Y PA RK EA ST , SE CO ND FL OO R, LO SA NG EL ES , CA LI FO RN IA $0 06 7 po s N N O n N n N N O n N n N N N O — _ — n t — r y - _ — — — _ v s o o ~ a W r a S G o N O — C o o O o e ~ a n w a > l o N — _ O o O o « o n N n w n > W w N ATTACHMENT 1 1. DEMAND FOR ARBITRATION FOR CASSANDRA LINDSEY 2. DEMAND FOR ARBITRATION FOR DANIEL ARAYA 3. DEMAND FOR ARBITRATION FOR DANIEL ROGERS MILLINGTON,JR. 4. DEMAND FOR ARBITRATION FOR DAROLD CALDWELL 5. DEMAND FOR ARBITRATION FOR DAVID MONTOYA 6. DEMAND FOR ARBITRATION FOR EDWIN GARCIA 7. DEMAND FOR ARBITRATION FOR ELIJHA NORTON 8. DEMAND FOR ARBITRATION FOR FRANK G. DUBUY 9. DEMAND FOR ARBITRATION FOR GERALD GRIFFIN 10. DEMAND FOR ARBITRATION FOR GREG KEMPLER _ 11. DEMAND FOR ARBITRATION FOR IGOR KROO 12. DEMAND FOR ARBITRATION FOR JAMES STERLING 13. DEMAND FOR ARBITRATION FOR JERRY BOYD 14. DEMAND FOR ARBITRATION FORJIRO FUMUTO 15. DEMAND FOR ARBITRATION FORJOHNNY EVANS 16. DEMAND FOR ARBITRATION FORJONATHON SCOTT 17. DEMAND FOR ARBITRATION FOR JULIUS FUNES 18. DEMAND FOR ARBITRATION FOR KARIM SHARIF 19. DEMAND FOR ARBITRATION FOR KUNG MING CHANG 20. DEMAND FOR ARBITRATION FOR LEROY CLARK 21. DEMAND FOR ARBITRATION FOR MARCIAL SAZO 22. DEMAND FOR ARBITRATION FOR MARQUEL ROSE 23. DEMAND FOR ARBITRATION FOR MASOODSHAFII 24. DEMAND FOR ARBITRATION FOR MATTHEW LOATMAN 25. DEMAND FOR ARBITRATION FOR MIGUEL DE LA MORA PROOF OF SERVICE IN IT IA TI VE L E G A L G R O U P A P C 1 8 0 0 C E N T U R Y P A R K E A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 9 0 0 6 7 o O S o Y N B O O W B e W Y HN O — t w e e e e t S S R R R R B P R P B R R S B S A R E B E E B H A I S 26. DEMAND FOR ARBITRATION FOR MYRON ROGAN 27. DEMAND FOR ARBITRATION FOR NEIL BEN YAIR 28. DEMAND FOR ARBITRATION FOR PATER PAULL 29. DEMAND FOR ARBITRATION FOR PATRICK COOLEY 30. DEMAND FOR ARBITRATION FOR RAFAEL CANDELARIA 31. DEMAND FOR ARBITRATION FOR REGINALD COLWELL 32. DEMAND FOR ARBITRATION FOR ROGERPERRY 33. DEMAND FOR ARBITRATION FOR SCOTT SULIVAN 34. DEMAND FOR ARBITRATION FOR STEVE MAYNARD 35. DEMAND FOR ARBITRATION FOR SUSAN STELLMAN 36. DEMAND FOR ARBITRATION FOR THOMAS MARTIN 37. DEMAND FOR ARBITRATION FOR WAYNE IKNER 38. DEMAND FOR ARBITRATION FOR WILLIAM BAKER PROOFOF SERVICE EXHIBIT 4 09/19/2011 12:34 FAX 0001/0004 Fox Rothschild te ATTORNEYSAT LAW 1800 Century Park East, Suite 300 Los Angeles, CA 90067-1506 Tel 310.598.4150 Fax 310.556.9828 www.foxrothschild.com DATE: SEPTEMBER19, 2011 FACSIMILE TRANSMITTAL SHEET TO: . COMPANY: FAX NUMBER: PHONE NUMBER: Raul Perez, Esq. and: Initiative Legal Group 310-861-9051 310-556-5637 FROM: . PHONE NUMBER: EMAIL: BILLING NUMBER: Yesenia Gallegos (310) 598-4159 ygallegos@foxrothschild.com NUMBEROF PAGES: CHARGEFILE #: PRIORITY: LOG NUMBER: 3 15135-00005 § REGULAR IF YOU DO NOT RECEIVE ALL OF THE PAGES, PLEASE CALL (310) 598-4150 AS SOON AS POSSIBLE. ORIGINAL DOCUMENT WILL FOLLOW BY MAIL Ourcunr OFrorreview Op.kask COMMENT [OPLEASE REPLY M1 FOR YOUR INFORMATION NOTES/COMMENTS: Arshavir Iskanian v. CLS Transportation Attached please find correspondenceof today’s date. IRS CIRCULAR 230 DISCLOSURF: PURSUANTTOTREASURY REGULATIONS,ANYTAXADVICE CONTAINED IN ‘IHIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED ORWRITTLN TO BE USED,AND CANNOTBE USED OR RELIED UPON BY YOU OR ANY OTHER PERSON, FORTHE PURPOSE OF () AVOIDING PENALTIES UNDER THE INTERNAL REVENUF. CODF, OR Gi) PROMOTING, MARKETING OR RECOMMENDING TOANOTHER PARTY ANYTAX ADVICE ADDRESSED LIEREIN. TUE INFORMATION CONTAINEDIN THIS FACSIMILE MESSAGEIS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGEIS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELYNOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGETO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL SERVICE. THANK YOU. LAI 872671 05/26/11 09/19/2011 12:34 FAX Fox Rothschild up ATTORNEYS AT LAW 1800 Century Park East, Suile 300 Los Angeles, CA 90067-1506 Tel 310.598.4150 Fax 310.556.9828 www.faxrothschild.com , _ Yesenia Gallegos Direct Dial: (310) 598-4159 Email Address: ygallegos@foxrothschild.com September 19, 2011 VIA FACSIMILE AND FIRST CLASS MAIL Terry Shea Arbitration Coordinator ADRServices,Inc. 915 Wilshire Blvd., Suite 1900 Los Angeles, CA 90017 Re: Alston, Glen-ADR Case No. 11-5401 Araya, Daniel-ADRS Case No. 11-5223 Bailey, Karen-ADR Case No. 11-5402 . Baker, William-ADRS Case No. 11-5240 Baranco, David-ADRS Case No. 11-5197 Ben Yair, Neil-ADRS Case No. 11-5220 Boyd, Jerry-ADRS Case No. 11-5206 Caldwell, Darold-ADRS Case No. 11-5225 Candelaria, Rafael-ADRS Case No. 11-5232 Chang, Kung Ming-ADRS Case No. 11-5212 Cheng, Kenny-ADRS Case No.11-5202 Clark, LeRoy-ADRS Case No. 11-5213 Collins, Cleophus-ADRS Case No. 11-5291 Colwell, Reginald-ADRS Case No. 11-5233 Cooley, Patrick-ADRS CaseNo. 11-5231 De La Mora, Miguel-ADRS Case No, 11-5218 Denison, James-ADRS Case No. 11-5199 Dubuy, Frank G.-ADRS Case No. 11-5229, Earnshaw, Luis-ADRS Case No. 11-5201 Evans, Johnnie-ADRS Case No. 11-5208 Fuentes, Raul-ADRS Case No. 11-5404 Fumoto, Jiro-ADRS Case No. 11-5207 Funes, Julius-ADRS Case No. 11-5210 Garcia, Angelo-ADRS Case No. 11-5193 Garcia, Edwin-ADRS Case No. 11-5227 Griffin, Gerald-ADRS Case No. 11-5230 A Fennsvivania Limien Labily Partnerships - California Connecticut Delaware Florida Nevada New Jersey New Yark 0002/0004 Pennsyivania 09/19/2011 12:34 FAX : {0003/0004 Ms. Shea September 19, 2011 Page 2 _ Ikner, Wayne-ADRS Case No. 11-5239 Kempler, Greg-ADRS Case No. 11-5203 Kroo, Igor -ADRS Case No. 11-5204 Lindsey, Cassandra-ADRS Case No. 11-5222 Loatman, Matthew-ADRSCase No.11-5217 Martin, Thomas-ADRS Case No. 11-5238 Maynard, Steve-ADRS Case No. 11-5236 Millington Jr, Daniel Rogers-ADRS Case No.11-5224 Montoya, David-ADRS Case No. 11-5226 Mueller, Carl-ADRS Case No. 11-5196 Norton, Elijha-ADRS Case No. 11-5228 Olmedo, Robert-ADRS Case No. 11-5406 Paull, Pater-ADRS Case No. 11-5221 _ Perry, Roger-ADRS Case No. 11-5234 Pinkerton, William-ADRS Case No. 11-5293 Post, Arthur E.-ADRS Case No. 11-5405 Richmond, James-ADRS Case No. 11-5200 Rogan, Myron-ADRS Case No. 11-5219 Rose, Marque!-ADRS Case No.11-5215 Sazo, Marcial-ADRS Case No.11-5214 Scott, Jonathan-ADRS Case No. 11-5209 Sharif, Karim-ADRSCase No. 11-5211 Shafii,Masood-ADRS Case No. 11-5216 Silva, Flavio-ADRS Case No. 11-5198 Sloan, Bennett-ADRS Case No. 11-5195 Smith, Edward-ADRSCase No. 11-5181 Stellman, Susan-ADRS Case No. 11-5237 Sterling, James-ADRS Case No. 11-5205 Sullivan, Scott-ADRS Case No. 11-5235 Swartz, Carl-ADRS Case No. 11-5292 Toailoa, Avaavau-ADRS Case No. 11-5194 Warren, Adrien-ADRS Case No. 11-5192 Washington, Belinda-ADRSCase No. 11-5403 Dear Ms. Shea: This shall respond to yourrecent request that CLS Transportation ofLos Angeles, LLC and other named defendants select an arbitrator in the above-referenced matters. Please be advised that we do not recognize the purported Plaintiffs’ demandsfor arbitration as valid submissions. Asa preliminary matter, the procedure you have provided for choosingan arbitrator is inconsistent with the requirementset.forth in the arbitration agreementat issue, which requiresthatthe parties selecta retired judge as the arbitrator. In any event, the arbitration agreementat issue invokes LAI 101953v1 09/18/11 09/19/2011 12:35 FAX 1gj0004/0004 Ms. Shea September 19, 2011 Page 3 the services ofthe American Arbitration Association (“AAA”), and requiresthat the parties follow AAA’s rules. Moreover, Plaintiffs’ counsel has not presented anything to showthat he is authorized by the purported Plaintiffs to initiate arbitration. If the purported Plaintiffs exist and seek to arbitrate, they will need to file with AAA andtender the appropriate fees. Should you have any questions, please feel free to call me. Very truly. yours, Yesenia Gallegos ‘cc: Raul Perez, Esq. LAI 101953v1 09/18/11 EXHIBIT 5 & American Arbitration Association EmploymentArbitration Rules Demand for Arbitration Dispute Resolution Services Worldwide Please visit our website at www.adrorg ifyou would liketo file this case online. Please visit our website at www.adr.orgifyou would like to file this case online. AAACustomer Service can be reached at 800-778-7379 Mediation:-Ifyou would like the AAA to contact the other parties and attempt to arrange mediation, please check this box. L] cetiationfou rthis service. Parties (Claimant) Rau! Perez (SBN 174687) Representative’s Name(if known): Greg Kempler vat gs Nameof Claimant: Initiative Legal Group APC Firm (if applicable): Address: 1800 Century Park East, 2nd Floor Address: - — Los Angeles CA 90067 City: State Zip: City: State Zip: Phone: Fou (310) 566-5637 (310) 861-9051 Phone: Fax: ; rperez@initiativelegal.comEmail Address: Ernail Address: ‘ . David F. Faustman Parties (Respondent): Representative’s Na me(if known): See Attachment A _ | Fox Rothschild LLP NameofRespondent: - Firm (if applica ble): . 1800 Century Par k East, Suite 300 Address: Address: - , Los Angeles CA 90067 City: State Zip: City: State Zip: (310) 598-4150 (201) 556-9828 Phone: Fax: Phone: Fax: dfaustman@foxrothschild.com Email Address: Email Address: Claim: Whatwas/is the employee’s annual wage range? In detail, please describe the nature of each claim. Note: This question is required by California law. You mayattach additional pa ges if necessary: See Attachment B ® Less than $100,000 CY $100,000 - $250,000 0 Over $250,000 AmountofClaim: [See Attachment C | Claim involves: Statutorily Protected Rights C} Non-statutorily protected rights Other Relief Sought: @ Arbitration Costs 2 Attorney's Fees @ Interest 28 Punitive/Exemplary Damages QO) Other:[| Neutral: Please describe the qualifications for arbitrator(s) Hearing: Estimated time needed to presentcase at hearing: - to hear this dispute: ; Hours: 8-00 Days: —e A mutually agreeable arbitrator (who shall be retired judge) from list of . arbitrators provided by ADR Services, ARC, Judicate West, or JAMS. Hearinglocale: Los Angeles If, however, the parties are unable to agree, a neutral arbitrator (who shall be . : Bd se . a tetired judge) shall be appointed in the manner proved by CCP 1283.05 QO Requested by Claimant &) Locale provision included in the contract Filing Fee: Employer-Promulgated Plan fee requirement or $175 (max amount per AAA rules) {) Standard Fee Schedule for individually negotiated contracts C) Flexible Fee Schedule for individually negotiated contracts Amout Tendered: Notice: To begin proceedings, please send a copy of this Demand and the Arbitration Agreement, along with thefiling fee as provided for in the Rules, to: American Arbitration Association, Case Filing Services, 1101 Laurel Oak Road, Suite 100 Voorhees, NJ 08043. Send the original Demandto the Respondent. Pursuant to Section 1284.3 of the California Couc of Civil Procedure. consumers with a gross monthly incomeofIcss than 300%ofthe federal poverty guidcli ncs arc entitled to a waiverofarbitration fees and costs, exclusive ofarbitrator fees. This law applies to al} consumer agreements subject to the California Arbit ration Act, and to all consumerarbitrations conducted in California. Only those disputes arising out ofemployer promulgated plans are included in the consumer definition. If you b elieve that you mect these requirements, you must submit to the AAA a declaration under oath regarding your monthly incomeand the numberofpersons in your hous chold. Please contact the AAA’s Western Casc Management Center¢ 0879. If you have any questions regarding the waiver of administrative fecs, AAA Case Filing Services can be reached at 877-495-4185. Signature of claimantor representative: Date: September 28, 2011 Attachment A RESPONDENTS: CLS Transportation of Los Angeles, LLC; CLS Worldwide Services, LLC; Empire International, Ltd.; Empire/CLS Worldwide Chauffeured Services; GTS Holdings,Inc.; David Seelinger Attachment C CLAIM/RELIEF SOUGHT: Asto the California Labor Code §§ 1194, 1197, and 1197.1 claims (Minimum Wages): 1. 7. For general unpaid wagesat overtime wage rates and such general and special damages as may be appropriate; For statutory wage penalties pursuant to California Labor Code §1197.1 in amount as may be established according to proof. For pre-judgmentinterest on any unpaid overtime compensation from the date such amounts were due; For reasonable attorney’s fees and forcosts of suit incurred herein pursuantto California Labor Code § 1194(a); For liquidated damagespursuantto California Labor Code § 1194.2; Forcivil penalties pursuant to California Labor Code § 2699(f) and (g) in the amount of $100 dollars for each violation per pay periodfortheinitial violation and $200 for each aggrieved employee perpay period for each subsequentviolation,plus costs and attorneys’ fees for violation of California Labor Code §§ 510, 1194 and 1198; and For such otherandfurtherrelief as the Arbitrator may deem equitable and appropriate. As to the California Labor Code §§ 510 and 1198 claims (Unpaid Overtime): 1. 5. For generat unpaid wagesat overtime wagerates and such general and special damages as may be appropriate; For pre-judgmentinterest on any unpaid overtime compensation from the date such amounts were due; For reasonable attorney’s fees and for costs of suit incurred herein pursuantto California Labor Code § 1194{a); For civil penalties pursuant to California Labor Code § 2699(f) and (g) in the amount of $100 dollars for each violation per pay period for theinitial violation and $200 for each aggrieved employee perpay period for each subsequentviolation, plus costs and attorneys’ fees for violation of California Labor Code §§ 510, 1194 and 1198; and For such otherand furtherrelief as the Arbitrator may deem equitable and appropriate. As to the California Labor Code §§ 201 and 202 claims (Non-payment of Wages Upon Termination): w Forall actual, consequential and incidental losses and damages, according to proof; For statutory penalties pursuant to California Labor Code § 203 for Plaintiff and all other class members whohaveleft Defendants’ employ; For costs of suit incurred herein; Forcivil penalties pursuant to California Labor Code § 2699(f} and (g) in the amount of $100 dollars for each violation perpayperiod for theinitial violation and $200 for each aggrieved employee per pay period for each subsequentviolation, plus costs and attorneys’ fees for violation of California Labor Code §§ 201, 202 and 203; and For such otherandfurtherrelief as the Arbitrator may deem equitable and appropriate. As to the California Labor Code § 226(a) claims (Improper Wage Statements): P w N P 5. Forall actual, consequential and incidental losses and damages, according to proof; For statutory penalties pursuant to California Labor Code § 226(e) and 226.3; For reasonablecosts and attorney’s fees pursuantto California Labor Code § 226(e); Forcivil penalties pursuantto California Labor Code § 2699(f) and (g) in the amount of $100 dollars for each violation perpay period fortheinitial violation and $200 for each aggrieved employeeper pay period for each subsequentviolation, plus costs and attorneys’ fees for violation of California Labor Code § 226(a); and For such other andfurtherrelief as the Arbitrator may deem equitable and appropriate. As to the California Labor Code § 226.7(a) claims (Missed Rest Periods): P w W N r P 5. Forall actual, consequential, and incidental losses and damages, according to proof; Forstatutory penalties pursuant to California Labor Code § 226.7(b); For costs of suit incurred herein; For civil penalties pursuant to California Labor Code § 2699(f) and (g) in the amountof $100 dollars for each violation per pay periodfor the initial violation and $200 for each aggrieved employeeper pay period for each subsequentviolation, plus costs and attorneys’ fees for violation of California Labor Code § 226.7(a); and For such otherandfurtherrelief as the Arbitrator may deem appropriate. As to the California Labor Code §§ 226.7(a) and 512 claims (Missed Meal Periods): P w N r E 5. Forall actual, consequential, and incidental losses and damages, according to proof; For statutory penalties pursuantto California Labor Code § 226.7(b); For costs of suit incurred herein; Forcivil penalties pursuant to California Labor Code § 2699(f) and (g) in the amount of $100 dollars for each violation per pay period for theinitial violation and $200 for each aggrieved employee per pay period for each subsequentviolation, plus costs and attorneys’ fees for violation of California Labor Code §§ 226.7(a} and 512; and For such other and furtherrelief as the Arbitrator may deem appropriate. As to the California Labor Code §§ 221 and 2800 claims (Improper Withholding of Wages and Non- Indemnification of Business Expenses): B w N p For all actual, consequential and incidental losses and damages, according to proof; For costs of suit incurred herein; For civil penalties pursuant to California Labor Code § 225.5; For civil penalties pursuant to California Labor Code § 2699(f) and (g) in the amountof $100 dollars for each violation per pay period for the initial violation and $200 for each aggrieved employee perpay period for each subsequentviolation, plus costs and attorneys’ fees for violation of California Labor Code §§ 221 and 2802; and For such otherand further relief as the Arbitrator may deem appropriate. As to the California Labor Code § 351 claims (Confiscation of Gratuities): 5. For all actual, consequential and incidentallosses and damages, according to proof; Forrestitution of confiscated gratuities to all aggrieved employees and class members and prejudgmentinterest from the day such amounts were due and payable; For costs of suit incurred herein; Forcivil penalties pursuant to California Labor Code § 2699(f) and (g) in the amount of $100 dollars for each violation per pay period fortheinitial violation and $200 for each aggrieved employee perpay period for each subsequentviolation, plus costs and attorneys’ fees for violation of California Labor Code § 351; and For other such and furtherrelief as the Arbitrator may deem appropriate. As to the California Business & Professions Code § 17200, et seq. claims: N b 4. 5. For disgorgementofany andail “unpaid wages” and incidentallosses, according to proof; Forrestitution of “unpaid wages” toall class members and prejudgmentinterest from the day _such amounts were due and payable; “For the appointment of a receiver to receive, manage and distribute any andall funds disgorged from Defendants and determined to have been wrongfully acquired by Defendants as a result of violations of California Business & Professions Code § 17200 et seq.; For reasonable attorney’s fees that Plaintiff and other membersofthe class are entitled to recover underCalifornia Code ofCivilProcedure § 1021.5; and For costs of suit incurred herein As to the California Labor Code §§ 226(b), 432 and 1198.5 claims: — P w r 5. Forall actual, consequential andincidental losses and damages, according to proof; For costs of suit incurred herein; Forcivil penalties pursuant to California Labor Code § 226(f) in the amount of $750; For injunctive relief, costs and reasonable attorneys’ fees pursuantto California Labor Code § 226(g); and For such otherandfurtherrelief as the Arbitrator may deem appropriate. For such other andfurtherrelief as the Arbitrator may deem equitable and appropriate. EXHIBIT 6 Fox Rothschild LLP ATTICRNEYS AT LAW 1866 Century Park East, Suite 300 Los Angeles, CA 90067-1506 Tel 310.598.4150 Fax 310.556.9828 wv foxrathschild.com Yesenia Gallegos Direct Dial: (310) 598-4159 Email Address: ygallegos@foxrothschild.com October 10, 2011 VIA FACSIMILE/FIRST CLASS MAIL Adam Shoneck Intake Specialist American Arbitration Association 1101 Laurel Oak Road, Suite 100 Vorhees, NJ 08043 Fax: 877-304-8457 Re: Glen Alston,et al. v. CLS Transportation of Los Angeles LLC,etal. Dear Mr. Shoneck: Wearein receipt of your letter of October 6, 2011, requesting that CLS Transportation of Los Angeles, LLC, CLS Worldwide Services, LLC, Empire International, Ltd., Empire/CLS Worldwide Chauffeured Services, GTS Holdings, Inc., and David Seelinger tender a non- refundable fee in the amount of $52,275.00 in the above referenced matter. We do not at this time recognize the validity of the filings. All of the claimants are part of a class action that is currently on appeal. We have notreceived anything authoritative confirming that the claimants have opted out ofthe class, or that they even knowthat these demandsto. arbitrate have been madeon their behalf. If the demandsare genuine, they are IDENTICALand the parties are IDENTICAL. Thearbitrations, therefore, should be completely consolidated before a single arbitrator with a substantially reduced fee for the employer. Very truly yours, © Yesenia Gallegos A Paneryivanie Liited Lishily Cadnerstic California Connecticut Delaware District of Cclumbia Fioride: Nevada NewJersey NewYork Pennsyivacia EXHIBIT 7 . a American Arbitration Association Dispute Resolution Services Worldwide October 20°, 2011 VIA E-MAIL to rperez@initiativelegal.com Raul Perez, Esq. Initiative Legal Group, APC 1800 Century Park East 2°? Floor Los Angeles, CA 90067 VIA E-MAIL to dfaustman@foxrothschild.com David F. Faustman, Esq. Fox Rothschild LLP 1800 Century Park East Suite 300 Los Angeles, CA 90067 Dear Mr. Perez and Mr. Faustman: phone: 877-495-4185 fax: 877-304-8457 Case Filing Services 1101 Laurel Oak Road, Suite 100 Voorhees, NJ 08043 www.adr.org Asofthis date we havenotreceived the fees requested from Respondentin my letter of October 6", 2011. On October 10", 2011, we received a letter fromMs. Gallegos confirming Respondent would not be paying the fees requested in the October 6", 2011 letter; accordingly, we mustdecline to administer this case. We will issue afull refund for the fees paid by Claimants. Furthermore, since the Respondent has not complied with our request to pay the requisite administrative fees in accordance with the employer-promulgated plan fee schedule, we must decline to administer any other employment disputes involving this company. Werequest that the business remove the AAA name from its arbitration clauses so that there is no confusion to the company’s employees regarding our decision. Sincerely, Adam Shoneck Intake Specialist 856-679-4610 ShoneckA@adr.org Supervisor Information: Tara Parvey, ParveyT@adr.org cc: VIA E-MAIL to ygaliegos@foxrothschild.com Yesenia Gallegos, Esq. Fox Rothschild LLP 1800 Century Park East Suite 300 Los Angeles, CA 90067 O o e o N D H H FS F W Y N H = w o w e N Y H B N Y N Y N Y W N N Y | | § — S F K Y P F Y Y S F Y P o D AW N A W F k B N S H O O O N D H F F W Y S | S& S Raul Perez (SBN 174687) RPerez@iInitiativeLegal.com Melissa Grant (SBN 205633) MGrant@lnitiativeLegal.com Suzy E. Lee (SBN 271120) SuzyLee@lnitiativeLegal.com Initiative Legal Group APC 1800 Century Park East, 2nd Floor Los Angeles, California 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 Attomeys for Plaintiffs conformed Copy CONFORMED COPY OF ORIGINALFILED Los Angeles Superior Court SUPERIOR COURTOF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES GREG KEMPLER, ADRIEN WARREN, ANANTRAY SANATHARA, ANGELO GARCIA, ARTHUR POST, AVAAVAU TOAILOA, BELINDA WASHINGTON, BENNETT SLOAN, BRUCE GOLD, CARL MUELLER, CARL SWARTZ, CASSANDRA LINDSEY, CLEOPHUS COLLINS, DANIEL ARAYA, DANIEL ROGERS MILLINGTON, JR., DAROLD CALDWELL, DAVID BARANCO, DAVID MONTOYA, DAWN BINGHAM, EDWARD SMITH, EDWIN GARCIA, ELUHA NORTON,FLAVIO SILVA, FRANK G. DUBUY, GERALD GRIFFIN, GLEN ALSTON, IGOR KROO, JAMESC. DENISON, JAMES RICHMOND, JAMESSTERLING, JERRY BOYD,JIRO FUMOTO,JOHNNIE EVANS, JONATHON SCOTT, JULIUS FUNES, KAREN BAILEY, KARIM SHARIF, KENNY CHENG, KUNG MING CHANG, LAMONT CRAWFORD, LEROY CLARK, LUIS EARNSHAW, MARCIAL SAZO, MARQUELROSE, MASOODSHAFII, MATTHEW LOATMAN, MIGUEL DE LA MORA, MYRON ROGAN, NEIL BEN YAIR, PATER PAULL, PATRICK COOLEY, RAFAEL CANDELARIA, RAUL FUENTES, REGINALD COLWELL, ROBERT OLMEDO, ROGER PERRY, SCOTT SULLIVAN, STEVE MAYNARD, SUSAN NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT [Filed concurrently with Memorandum ofPoints and Authorities in Support Thereof; Declaration ofRaul Perez; the Request for Judicial Notice; and [Proposed] Order} Date: ZIlo h Time: 4 +30hm Place: © ‘2 Complaint Filed: NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION;OR,IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT o O f e t N D O N H S& F W Y N H N D o n p P h N H K H N H N H Y N = | HS H R P Y S FS F P F R F E e l e S N R R R B K H X e S F C W H A A A R E B a H e S STELLMAN, THOMAS MARTIN, WAYNE IKNER, WILLIAM BANKER, AND WILLIAM PINKERTON, Plaintiffs, VS. CLS TRANSPORTATION LOS ANGELES LLC,a Delaware corporation; and DOES| through 10, inclusive, Defendants. NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT o f o N D O H P F W N Y p o p o N N O N H NH N N Y N N N O | F F § § Y F | F e FP F E E h E o N D K U N B R W O N K F O O m e H N D H H H f F W Y K F S& S TO DEFENDANT CLS TRANSPORTATION LOS ANGELES LLC AND ITS ATTORNEY OF RECORD: PLEASE TAKE NOTICE THATona date to be determined, in a Department to be assigned in the above-captioned court, located at 111 North Hill Street, Los Angeles, California, 90012, the Plaintiffs named abovewill, and hereby do move the Court for an order for compelling specific performanceofindividualarbitration;or, in the alternative, setting aside the arbitration agreement. Oncethecaseis assigned to a judge in the above-captioned court, Plaintiffs will file and serve an amended notice of this motion setting forth the date, time and place of hearing. Plaintiffs’ motion is made pursuant to California Code of Civil Procedure §§ 526, 1281.8(a)(3) and the Court’s equitable powers to specifically enforce the agreements for individual arbitration (“Agreement”). Specifically, Defendant has breached the Agreement with Plaintiffs by first compelling individualarbitration in Court, causing Plaintiffs’ class claims to be dismissed, and then refusing to participate in individual arbitration when Plaintiffs attempted to comply with the Court Order. Defendanthas taken specific acts, memorialized in writing, which repudiates the same Agreementthat Defendantpreviously attempted to enforce in Court. Equity and justice would not permit Defendantto take contradictory positions in order to deny Plaintiffs a forum to pursue their claims. Thus, Plaintiffs seek an order to secure an appropriate forum to adjudicate their claims. In the alternative, Plaintiffs moves to have the Court revoke, rescind, or set aside the Agreementpursuant to Code of Civil Procedure § 1281.2(b) and the court’s equitable powers. This alternative remedy is madeon three grounds. First, due to Defendant’s intransigence, the only body contractually permitted to administer the arbitration, the American Arbitration Association, nowflatly refuses to conductbusiness with Defendant. Dueto this impracticable condition,the Arbitration cannot be performedand thus the Agreement should beset aside to allow Plaintiffs to pursue their claims in Court. Second, Defendant has taken contradictory positions in Court, whichis contrary to equity, in a clear attempt to deprive Plaintiffs oftheir due process. Though Defendant had heavily litigated a certified class action for four years, Defendant suddenly insisted that all matters must be resolved throughindividualarbitration within sixty daysoftrial. It then successfully compelled Page | NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION;OR,IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT oO o 6 e SI N D N O H F F W K Y n N b o N M N N N N N B B e e e R E R E e e B N R R R B B f F S F S e A A A F F B N Y H C O individual arbitration ofthe named Plaintiff, with the remaining class members’ claims dismissed. WhenPlaintiffs demanded individualarbitration, Defendantresisted, refusing to tender the requisite fees. Defendants finally filed a procedurally defective motion to consolidate the arbitration demands on groundsofefficiency and cost-effectiveness — which are the samebases forclass actions. Defendant mustthus be estopped from enforcing the Agreementsince it had taken contradictory legal positions in an effort to deprive Plaintiffs ofthe right to adjudicate their claims. Lastly, the Agreements should be rescinded on the simple ground that Defendant unmistakably breached the Agreementbyfailing to tender arbitration fees. Rescission is thus the most appropriate remedy to restore Plaintiffs’ rights. On any oneofthe three foregoing grounds, the Court should revoke, rescind, or set aside the Agreementand grantPlaintiffs leave to amend the complaint to allege their class wage and hourclaimsin this action. Plaintiffs’ Motion is based on this Notice of Motion, the accompanying Memorandum of Points and Authorities, the declaration of Raul Perez and all exhibits attached thereto, the Request for Judicial Notice and all exhibits attached thereto, all pleadings and paperson file in this action andin the related action Iskanian v. CLS Transportation Los Angeles LLC, Los Angeles Superior Court Case No. BC356521, and such other matters as may be presented to the Court at or before the time of the hearing. Dated: November 18, 2011 Respectfully submitted, Initiative Legal Group APC By: / » - RautPerez cCvOrs Melissa Grant Suzy E. Lee Attorneys for Plaintiffs Page 2 NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOFINDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C 18 00 C E N T U R Y P A R R E A S T , S E C O N D F L O O K . L O S A N G E L E S , C A L I F O R N E S 80 06 7 > o O C O N N W N 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Raul Perez (SBN 174687) RPerez@lnitiativeLegal.com Melissa Grant (SBN 205633) MGrant@InitiativeLegal.com Suzy E. Lee (SBN 271120) SuzyLee@lnitiativeLegal.com Initiative Legal Group APC 1800 Century Park East, 2nd Floor Los Angeles, California 90067 Telephone: —(310) 556-5637 Facsunile: (310) 861-9051 Attomeys for Plaintiffs SUPERIOR COURT OF THE STATE OF C. FOR THE COUNTY OF LOS GREG KEMPLER, ADRIEN WARREN, ANANTRAY SANATHARA, ANGELO GARCIA, ARTHUR POST, AVAAVAU TOAILOA, BELINDA WASHINGTON, BENNETT SLOAN, BRUCE GOLD, CARL MUELLER, CARL SWARTZ, CASSANDRA LINDSEY, CLEOPHUS COLLINS, DANIEL ARAYA, DANIEL ROGERS MILLINGTON, JR., DAROLD CALDWELL, DAVID BARANCO, DAVID MONTOYA, DAWN BINGHAM, EDWARD SMITH, EDWIN GARCIA, ELJHA NORTON, FLAVIO SILVA, FRANK G. DUBUY, GERALD GRIFFIN, GLEN ALSTON, IGOR KROO, JAMESC. DENISON, JAMES RICHMOND, JAMESSTERLING, JERRY BOYD, HRO FUMOTO, JOHNNIE EVANS, JONATHON SCOTT, JULTUS FUNES, KAREN BAILEY, KARIM SHARIF, KENNY CHENG, KUNG MING CHANG, LAMONT CRAWFORD, LEROY CLARK, LUIS EARNSHAW, MARCIAL SAZO, MARQUELROSE, MASOOD SHAFI, MATTHEW LOATMAN,MIGUEL DELA MORA, MYRON ROGAN,NEIL BEN YAIR, PATER PAULL, PATRICK COOLEY, RAFAEL CANDELARIA, RAUL FUENTES, REGINALD COLWELL, ROBERT OLMEDO, ROGER PERRY, SCOTT SULLIVAN, STEVE MAYNARD, SUSAN STELLMAN, THOMASMARTIN, Conformed CQpy. a1 CONFORMED Copy OF ORIGINAL FILED Los Angeles Superior Court John A. heenaclitive Officer/Clerk B an , Dep y SHAUNYA-WESLEY py (FORNIA GELES casewo: REY7T393 | MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOFINDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT [Filed concurrently with the Notice ofMotion and Motion for an Order Compelling Specific PerformanceofIndividual Arbitration; or, in the Altemative, Setting Aside the Arbitration Agreement, Declaration ofRaul Perez, the Request for Judicial Notice, and [Proposed] Order} Date: 2| }0 l It Time: BS: 20 AM Place: DYyYwW Complaint Filed: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OFINDIVIDUALARBITRATION;OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT ___ IN IT IA TI VE L E G A L G R O U P A P C ; 1 8 0 0 C E N T U R Y P A R K E A S T , S E C O N D F L O O R , L . O S A N G E L E S . C A L I F O R S E S O O l 0 7 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WAYNE IKNER, WILLIAM BANKER, AND WILLIAM PINKERTON, Plaintiffs, VS. CLS TRANSPORTATION LOS ANGELES LLC, a Delaware corporation; and DOES1 through 10, inclusive, Defendants. 0 OP I DA KH A MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOFINDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C 18 00 C E N T U R Y P A R I S E A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N E S 90 00 7 TABLE OF CONTENTS J. INTRODUCTION... cceeecccececeeseecceneseeeceneesnescosteee deeesseceseesatneceessaseeseseseeneaseseeseeneeene 1 HW. FACTS AND PROCEDURE .0.00... s:ecseseessesessesesseseneneeseeneceseeeceecesseeaeneneeneaeseecneneeseeacaes 3 TL. ARGUMENT.........cccccccccceccccscnseeeccseesneeeeceeceeeeeneeenseese sects sennasneesasessecsesnesseessneseeseenesseteneeua 5 A. The Court Has Jurisdiction to Order Specific Performance ofthe Agreement ................. 5 B. The Court Should Order CLSto Specifically Perform the Arbitration Agreement........... 7 1. The Court Should Enforce the Arbitration Agreements .........0..eeeeeeeeeeeees 7 2. Plaintiffs Have Also Satisfied Other Injunctive Relief Factors .........0.....cecceeeseees 8 3. The DoctrineofJudicial Estoppel Bars CLS From Compelling Individual Arbitration ofEmployees and Subsequently Opposing Same............0eee 10 C. Inthe Alternative, the Court Should Rescind or Set Aside the Agreement Because It Cannot Be Enforced ...........2..ceccecceeceeeceteseeeeereecneeesssesseesesenssceenseesseceesneteneesseeeenass 10 1. |The Agreement Cannot Be Enforced Due to Impracticability.....0.ee VW 2. The Arbitration Agreement Must Be Set Aside Due to Equitable Estoppel.......... 12 3. Rescission Is An Appropriate Remedy Underthe Instant Facts00.000... 15 TV. CONCLUSION 2.0 .nooccccceecccceceeeeeeccevencneceeee rien ees oo nseeaeseeeseeeeecessceeneerinesseesecteeseereesegeneaeees 15 Pagei MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLINGSPECIFIC PERFORMANCE OFINDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L ( 3 R O U P A P C TS 00 C E N P U R P A R K ED O T . S E C O N D FL O O K , L O S A N G E L E S , C A L T O R S H i e ? 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES | STATE CASES Aguilar v. Lerner, 32 Cal. 4th 974 (2004) oo... ceceeceeecetessececae cee ceetsneeesesanecesseessessseeeeeseeseneeceneasenseen 10 Armendariz v. Foundation Health Psychcare Serv., Inc., 24 Cal. 4th 83 (2000) ............eseeeeeeeeeeees 14 Cotta v. City and County ofSan Francisco, 157 Cal. App. 4th 1550 (2007).......-..:ecccsceesssseseeeeseeee 13 Davenport v. Blue Cross, 52 Cal. App. 4th 435 (1997) ........c-ssesecsesceeesenseneessesesseenenseonereseeeenssere Dept. ofFish & Game v. Anderson-CottonwoodIrrig. Dist., 8 Cal. App. 4th 1554 (1992)... cccecccscceceseecseceecoesencesccececsseecsceesetsessensssensessensesseceuscesesaeesuasetentsuceaesanesesuesssssensaveesnsoe 9 Freeman v. State Farm Mut. Auo Ins. Co., 14 Cal. 3d 473 (1975) .......essecseesesecesseceecececesensnseeceseeessees6 Gentry v. Superior Court, 42 Cal. 4th 443 (2007) 0... eeccceccccseseeneseseetsseesereenneereneees 1,3, 4,8 Gutierrez v. Autowest, Inc., 114 Cal. App. 4th 77 (2003). .......1.s.eeseescssccssesssceseceseseessecseoneeeseenenenees 14 Jackson v. County ofLos Angeles, 60 Cal. App. 4th 171 (1997)...eeeccseseesceeeeeee cece ssecneeesseatone es 10 Kennedy v. Reece, 225 Cal. App. 2d 717 (1964) ......ececcescctsseseccescesesecenseeeesseeceseacueeseregesessoneeser tee YW Lenard v. Edmonds, 151 Cal. App. 2d. 764 (1957) .0........ecsscecsesecensceseceteeseereeestresseeesersecseseeseaccens 15 Maggio v. Windward Capital Management Co., 80 Cal. App. 4th 1210 (2000) 0.0... eececceeeeseeeteeee 12 Maudlin v. Pacific Decision Sciences Corp., 137 Cal. App. 4th 1001 (2006)...eeeeeeeee 7 Metaiclad Corp. v. Ventana Environmental Organizational Partnership, 109 Cal. App. Ath 1705 (2003) oo.eeeeccceseeccensceeceesseeseeaceceeneneeeesnceessarescenaeenacensaseeversersessenersagesseenessnseges 12, 13 Nicolopulos v. Super. Ct., 106 Cal. App. 4th 304 (2003) «0.0... .secsseeseesceesssesseseeeestensnesesestoneeeeees 13 Rosenthal v. Great Western Fin. Securities Corp., 14 Cal. 4th 394 (1996) oo... eeeeeseeeeeee6 Sav-On Drug Stores, Inc. v. Super. Ct., 34 Cal. 4th 319 (2004) 0... eecssseesseeeesnsesseeecesaneesssceseensees 13 FEDERAL CASES AT&TMobility LLC v. Concepcion, 13) S. Ct. 1740 (2011)...eeecsc eseeeesetestentseeeenes 4,7, 8,1] Doctor’s Assocs. v. Casarotto, 517 U.S. 681 (1996)... sce cesce ce sseececnsesceseseeessnecesseeeeeosaseaeeeeeges 1} Volt Information Sciences v. Board ofTrustees ofLeland StanfordJunior Univ, 489 U.S. 468 (1989) o.oo ccccccccesssencessensecescsensessessesccseesseueeeesenenscaecessanesseraseeeaaesaceeseeesssessenesaseeesees 7 STATE STATUTES Cal. Civ. Proc. Code § 382 .....cccccccccccsecceecessecseensececeeceeececeeececosunessesce ses cascassuaeeeeeeeerseseseesesaeeeanase 13 Pageit MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C | - t h O O C E N T U R Y P A R K F A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 1 0 0 6 7 o «f o N N W 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal. Civ. Proc. Code § 526(a)(3) wesssssssscessessssccssssneesessssseessossssssssnsecesseessnsnseseeceecassnsueneesencennnineessees 9 Cal. Civ. Proc. Code § 526(a)(4) ......sesseecseeeeseceeseeneieteeeeensneennerseeserecssesieaseneneeneceenesneeteanenssreeneney9 Cal. Civ. Proc. Code § 526(a)(5) ........-c:cccseerestceesececeseecessceeeseseseccsaeeeneeeesareatssaresesaccenesenavennessaeesaes9 Cal. Civ. Proc. Code § 1281.2(b)......ccccccceeeceeesseececeeeeeeeseeseeseesessesaeesseacessenseseeseeaeeseeeserseseneseneneeess 10 Cal. Civ. Proc. Code § 1281.3... cccceeeecesceseceneeneceseseeesnereeesonaesseeneesssaeeeseesseaesessesqenseasanteeseneens2 Cal. Civ. Proc. Code § 1281.8(a)(3).......::ccssccsesessensseeseseessasnenessnenstessencessnaeeneeaeesseessaeessesensesecseceees6 FEDERAL STATUTES QUS.C. § 2 cccccccccsccssessssssessesessecesecesesessesceseeesescsseeesssessaserssenesseesserseseecsesessnesseeeessseeseensssenenenecses 1] Federal Arbitration Act (FAA).......-...::::s:sesssecereeseseneeenneeacenseneneneesanesesesneseneeeesneeenseenses 4, 6, 8, 11 SECONDARY AUTHORITIES Rest.2d Contracts, § 26] ..u........cccesceseceeceeeeeeneceneesessaneeseceecasesecesneeseneeeneassgetenseesenaecaeenaennaeeenereas HM Page in MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C _ J O O C E N T U R Y P A R K B A S T , S E C O N D F L O O I L L O S A N G E L E S , C A L L F O R S E S ( 0 0 6 a o . l U l U N C O l U l U M D U M G S O D L. INTRODUCTION Overthe course ofone year, Defendant CLS Transportation Los Angeles LLC’s (“CLS”) have takenat least three contradictory positionsin an effort to deny Plaintiffs a forum to adjudicate their claims. CLS employedPlaintiffs as limousine drivers, and as a condition oftheir employment, required that each employeesign, or be bound by, an agreement containing an arbitration clause with class action and representative action waivers (“Agreement”).! However, when Plaintiffs attempted to arbitrate their claims as per the Agreement, CLS began its gamesmanship to deprivePlaintiffs of their due processrights. A provisional remedy is particularly appropriate here because, with this action, Plaintiffs are seeking to secure a forum to adjudicate their underlying substantive claims. Initially, CLS maintained that all disputesarising out ofLabor Code violations must be individually arbitrated under the Agreement. In June 2011, CLS successfully argued this position, obtaining a court order compellingindividualarbitration and dismissing Plaintiffs’ class claimsin Iskanian v. CLS Transportation Los Angeles, LLC2 (“Iskanian”) to which Plaintiffs had belonged as membersofa certified class. Following this order, in September 2011, sixty-three former Iskanian class members(“Plaintiffs”) filed individual arbitration demands with ADRServices,Inc. (“ADR”)? However, CLSrefused to recognize the validity ofPlaintiffs’ arbitration demands, arguing that only the American Arbitration Association (“AAA”) was authorized to administer the arbitrations. CLS instead demanded Plaintiffs submit their claimsto arbitration with AAA,otherwise they refused to ' A true and correct copyofthe Proprietary Information and Arbitration Policy/Agreement(“Agreement”) signed by Arshavir Iskanian is attached to the Declaration of Raul Perez as Exhibit A. On information andbelief, many, but notall, of the Plaintiffs signed the Agreement. However, paragraph 17 of the Agreementstates that the termsofthe Agreementare binding on all employeesirrespective of signing. Plaintiffs proceedin this action assuming they are bound bythis form Agreement, as CLS had repeatedly contended they were. ? Los Angeles Superior Court Case No. BC356521, consolidated with BC381065, assigned to Hon. Robert L. Hess. > Formerclass representative Arshavir Iskanian optedto file an appealofthetrial court’s order granting CLS’s motion to compelindividualarbitration, rather than file an individual arbitration claim. (See Iskanian v. CLS Transportation Los Angeles, LLC, No. B198999 (Cal. Ct. App. 2d Dist., May 27, 2008) (order remandingtrial court’s order compelling arbitration for application of the Gentry test) (“Iskanian appeal”).). A true and correct copy ofthe slip opinion is attached to the RJN as Exhibit 1. Page | MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C 18 00 C E N T U R Y P A R K E A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L T E O R N L S (0 06 7 oc lU lU NU CO lU lU lU MO CO UU CO CU NG SC UD N 11 12 3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 recognize their validity. Yet when the conciliatory Plaintiffs acceded to CLS’s demand andtendered fees to initiate arbitration with AAA, CLS abruptly changedits position. Uponreceiptofthe arbitration demands with AAA in October, 2011, CLS adopted a second position. Under the Agreement and AAA rules, CLS wasobligated to pay $925.00 to commencethe arbitration for each individual claimant. Rather than comply with the terms ofthe Agreement, CLS adamantly refused to pay the non-refundable arbitration fee. Excuses accompanied the non-payment, includingthe baseless charge that Plaintiffs’ counselInitiative Legal Group (“ILG”) did not have authority to represent Plaintiffs and that the arbitration was stayed pending the appeal in Iskanian. At that time, CLS also insisted that the individual arbitration claims must be consolidated. By November, 2011, CLS had abandoned its argument, made only weeksearlier, that the Iskanian appeal stayed the arbitrations. Instead, CLSstaked out a third—contradictory—position. Filing a procedurally-defective Motion for Consolidation ofArbitrations in the Iskanian court,’ CLS now firmly contendsthatindividualarbitrations ofemployee disputes wouldbe inefficient and prohibitively expensive. Thearbitrations, CLS argues, should be consolidated by the Superior Court. CLS’s new position, however, finds no support in the Agreement that CLS previously insisted must be enforced “accordingtoits terms.”° Byrefusing to honorits own Agreement and the Orderit sought and obtained by motion, CLS proves thatit will adopt inconsistent, even contradictory, positions solely to stymie Plaintiffs from vindicating their individual claims. Plaintiffs have now been waiting for over five years to have their claims against CLS adjudicated, having had their claims thwarted by CLS less than two monthsbefore trial. CLS should not be permitted to adopt successive contradictory positions to deny Plaintiffs their due process. Thus, the Court should immediately rectify this gross injustice by ordering CLSto pay * A true andcorrect copy of the Motion for Consolidation of Arbitrations Pursuant to CCP 1281.3 and for Clarification of the Court’s Order of June 13, 2011 is attached to the Request for Judicial Notice (“RJN”) as Exhibit 4. This motionis procedurally defective for two reasons:(a) the action in the Jskanian trial court is stayed pending appeal, and (b)after dismissal of class claims, the Jskanian court is divested of personal jurisdiction over the former class members. > Ironically, CLS’s arguments in support ofconsolidation echotherationale for class actions, arguedby theplaintiff class in Jskanian — that individualarbitrations are impracticable, expensive andinefficient to conduct a multiplicity ofsuits. Page 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OFINDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT F O R N E Y W i l e ? Pp 5 G R O U P A P C P O S AN GE LE S, ¢t IN IT IA TI VE L E G A L Is d0 C E N P L R Y P A R R B A S T , S E C O N D F L O G I L E O S S G E T ES, the requisite fees to AAA (along with all costs CLS is obligated to pay under the Agreement and AAA rules) to conduct separate arbitrations with each individual Plaintiff. In the alternative, the Court may prevent an unjustresult by issuing a declaratoryjudgment invalidating or rescinding the Agreement on equitable or unenforceability grounds, thereby permitting Plaintiffs to proceed in court on a class-wide basis. I]. FACTS AND PROCEDURE Plaintiffs previously belongedto a certified class in Iskanian, which was filed on August 4, 2006. In that action, plaintiff Arshavir Iskanian brought wage and hour claims on behalfofhimself and a class ofsimilarly situated drivers currently or formerly employed by CLS,the largest provider of chauffeured limousine services in California. (“Declaration of Raul Perez (“Perez Decl.”), 92.) In early 2007, CLS moved for an order compelling individualarbitration, based on the Agreement allegedly signed by Iskanian in 2004 (andall ofthe other unnamed class members at various times). (Perez Decl., ]3.) The Jskanian court granted the motion, which was immediately appealed.® (Perez Decl., ff] 4-5.) While the appeal was pending, the California Supreme Court issued Gentry v. Superior Court, 42 Cal. 4th 443 (2007), which promulgated a fact-intensive test to determine whether class action waivers are enforceable. (Perez Decl., | 6.) The Court ofAppeal then reversed and remanded with instructionsto “apply Gentry to the factual record.” (Iskanian, Slip. op., at 4.) However, on remand, CLS proceeded tolitigate the matter as a class action. (Perez Decl., | 8.) On August 24, 2009, the Iskanian tria] court granted the plaintiffs class certification motion, certifying five subclasses with Iskanian appointed asclass representative for each subclass. (Perez Decl. { 9.) Thereafter, the parties continuedto litigate on a class-widebasis. After fouryears oflitigation, with the August 6, 2011 trial date fast approaching, on May 16, 2011 CLSfiled a motion “for renewal”ofits prior motion seeking to compelarbitration. (Perez Decl., {{ 9-10.) In its Motion for Renewal, CLS invoked the U.S. Supreme Court’s recently issued AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) (‘Concepcion’) to argue that the Federal ° Iskanian v. CLS Transportation Los Angeles, LLC, No. B198999 (Cal. Ct. App. 2d Dist., May 27, 2008) (order remanding trial court’s order compelling arbitration for application of the Gentry test). A true and correct copy ofthe slip opinion is attached to the RJN as Exhibit 1. Page 3 MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLINGSPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT A P C hh ES , C A L T R O R N E A OU 0G ? U { 18 00 C E S T E R Y P A R R E A S T , S E C O N D F L O G I G L O S A N G N I T I A T I V E L E G A L G R w n B P Ww W b w oc lU lU lN UO lU lU lU MC OO OU MN SN OD N Arbitration Act (“FAA”) preemptedthe rule in Gentry, andinsistedthatarbitration agreements “must be enforced according to their terms”in all respects under the FAA. (Def.’s Mot. for Renewal, at 6:14-15, attached as Exhibit 2 to the RIN;see also Perez Decl., 411.) Specifically, CLS focused on the class and representative action waivers, arguing that both should be enforced. (Jd. at 6:15-17.) On June 14, 2011, the trial court granted CLS’s motion andissued an order dismissingthe class claims and compelling Iskanianto individual arbitration. (See Order Granting Motion for Renewal, attached as Exhibit 3 to the RJN.) Iskanian filed a timely notice ofappeal ofthis order.’ (Perez Decl., 413. Beginning in August, 2011, anumber offormer Jskanian class members demandedindividual arbitration, (Perez Decl., | 14.) These formerclass members first filed with ADR, which was identified in paragraph 16(d) ofthe Agreementas a mutually acceptable arbitration provider. (Perez Decl., | 15.) CLS, however, rejected the validity ofthese arbitration demands, claimingbyletter that the Agreement“invokes the services ofthe American Arbitration Association and requiresthat the parties follow AAA’srules.” (Perez Decl., J 16; a true and correct copy ofthe September 19, 201] letter from CLS to ADRisattached as Exhibit B.) CLS then advisedthat“ifthe purported Plaintiffs exist and seek to arbitrate, they will need to file with AAA andtenderthe appropriate fees.” (Exhibit B (emphasis added).) The 63 individual employees chose to avoid further delay and expense and agreed to arbitrate before CLS’s preferred arbitration organization, AAA. (Perez Decl., ¥ 17.) Eachindividualplaintiffthen promptly tendered the $175.00filing fee to AAA to begin separate arbitration proceedings. (Id) Yet CLSagainfailed to abide by its own Agreement,this time byrefusingto pay its share of the filing fees owed to AAA,theonly serviceit claims can administerthe arbitration. CLS’s refusal to payits filing fees to commencearbitration is a material breach ofits duties under the Agreement, which provides: Unless otherwise provided or permitted under applicable law, [CLS] shall pay the arbitrator’s fee and any other type of expenseorcost that EMPLOYEEwould not be required to bear if he or she werefree to bring the dispute or claim in court as well as any other expenseorcost that is uniqueto arbitration. ” Notice of Appealfiled August 11, 2011, appellate no. B235138. Page 4 MEMORANDUMOFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C JR ON C E N T U R Y P A R I S 2 S E C O N D F E O G K L O S A N G E L E S , C A L T F O R S * Q f i 6 4 10 11 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Arbitration Agreement, J 16(h) attached to the Perez Decl. as Exhibit A.) Under AAA rules, the employer must pay a $925.00 nonrefundable fee, along with a $300 hearing fee, and all expenses incurred by the arbitrator, amongother fees. (AAA’s Employment Arbitration Rules and Mediation Procedures, 4 48, attached to the RJN as Exhibit 5.) CLSresorts to a numberofcontradictory excuses to justify its refusal to pay the non- refundablefees for each individual arbitration. CLSinitially suggested, without any evidence, that Plaintiffs’ attomeys did not represent them and also that the arbitrations were stayed pending appeal. (Perez Decl, {| 18; a true andcorrect copy ofthe October 10, 2011] letter from CLS to AAA is attached as Exhibit C.) This was false, as, [LG had obtained individual retainer agreements from each Plaintiff beginningin July 2011 to early September 201! to represent these Plaintiffs. (Perez Decl., 4 14.) However, quickly abandoningthe position that the action was stayed pending appeal, CLS filed a motion for consolidation ofthe arbitrations. (A true and correct copy of this motionis attached to the RJN as Exhibit 4; see also Perez Decl., $19.) The thrust ofCLS’s motion for consolidation is that individualarbitrations are too expensiveand inefficient, and that CLS wants to avoid the possibility of inconsistent judgments. (See Def.’s Mot. for Consolidation, at 8:20- 10:15.) CLS’s newly stated rationale departed from its prior position in compelling individualarbitration, when it argued that the Court must give effect to the parties’ expectations embodied in the terms ofthe agreement. (Def.’s Mot. for Renewal, at 6:4-8.) After CLS repeatedly failed to tender arbitration fees, AAA finally determined notonly thatit could not administer Plaintiffs’ individual arbitrations, but thatit “must decline to administer any other employmentdisputes with [CLS].” (Perez Decl., | 19; a true and correct copyofthe letter from AAA to CLS is attached hereto as Exhibit D.) Thus, CLS’s bad-faith tactics have renderedthe arbitration Agreement unenforceable as written and leave Plaintiffs without a forum to adjudicate their claims. This unjust result cannot be permitted. The Court should useits equitable powers to ensure that Plaintiffs will be able to properly adjudicate their individual claims. WW. ARGUMENT A. The Court Has Jurisdiction to Order Specific Performance ofthe Agreement The Court has jurisdiction to hear and decidethis issue. First, the Court has authority to issue Page 5 MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLINGSPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L . G R O U P A P C [8 00 C E N T E R Y P A R K E A S T , S E C O N T ) F L O G I . L O S A N G E L E S , C A L I F O R N D S ( 0 6 7 & W H W N oc o, lU lU lN UO lU CU CU MO OU OU MN S O D 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 orders in aid ofarbitration. Under paragraph | 6(i) of the Arbitration Agreement, the Court is - empowered to render anyordersin aid ofarbitration as “nothing in this Policy/Agreement prohibits either Party from seeking provisional remediesin court in aid of arbitration including temporary restraining orders, preliminary injunctions and other provisional remedies.” This contractual authority is supported by California statute, which grants a court authority to issue a preliminary injunction to furtherthe arbitration. CCP § 1281.8(a)(3).° Underthis provision,the court may issue injunctive relief pending arbitration “ifit is necessary to preserve the effectiveness ofarbitration.” Davenport v. Blue Cross, 52 Cal. App. 4th 435, 453 (1997). Second, a party may bring an equitable motion seeking specific performanceofan arbitration agreement. See Freeman v. State Farm Mut. Auo Ins. Co., 14 Cal. 3d 473, 479 (1975) (holding that motion to compel performanceofarbitration agreementis essentially an equitable motion for specific performance). Because CLShas already successfully compelled arbitration but is now refusing to comply withthe trial court’s order or the terms ofthe Agreement, the Court may order CLS to perform its obligations under the Agreement. Third, the Court has authority rooted in case law to resolve a dispute regarding the appointmentofthe arbitrator or the arbitrator’s fees. Burgess v. Kaiser Found. Hosp., 16 Cal. App. 4th 1077, 1079 (1993). In Burgess, the plaintiff disagreed with the reservation fee requested by the arbitrator, but instead ofpetitioning the court for a resolution on thefee dispute, plaintiffdid nothing for sixteen months. /d. at 1081. Finally, the arbitrator dismissed the action upon defendant’s request, a dismissal affirmed by the trial court. /d. The Burgess court held that “[aJrbitration is intended to be more expeditious than litigation...[a]ccordingly,ifthere is any delay by an arbitrator, the appropriate remedyis not tolling of the five-year period, but rathera petition to the court for an appropriate order ® This California statutory provision does notrun afoul of the FAA, which purportedly governs this Agreement under Paragraph 16(f). See Davenport, 52 Cal. App. 4th at 452 (holding “a court may grant provisional relief pending arbitration under the FAAif the party seeking the relief establishes the necessity of the injunction to preserve the status quo pending arbitration in order to avoid nullification of the arbitration process.”); see also Rosenthalv. Great Western Fin. Securities Corp., 14 Cal. 4th 394, 409 (1996) (holding that state rules apply in state court unless the application of such rules would defeat the purpose and objectives of the FAA). As the California rule here would facilitate rather than frustrate arbitration, there conflict with the FAA. Page 6 MEMORANDUMOFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLINGSPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE LE GA L. G R O U P IR OO C E N T L Y S A R K E N T . S E C O N D FL O O K . L O S A N G I a expediting the arbitration proceeding.” Jd. Bythis motion, Plaintiffs seek exactly this “appropriate remedy”ofpetitioning the Court to expedite the arbitration proceeding. As in Burgess, the delay in this case stemmed from a payment dispute, only here the dilatory party is the defendant CLS, whorefusedto payits share ofthe fees for the very individualarbitrations it compelled. Indeed, even after each Plaintiff sent a demand to AAA along with the $175.00 per person payment, CLSstill refused to meet its contractual obligations, which provide that CLS must pay the arbitrator’s fee and “any other expense or cost unique to arbitration.” (Arb. Agmt., J 16(h).) CLS is thus required to pay the arbitration fees and can be ordered to do so by this Court. Based on the foregoing,ifthe Court finds that the Agreement remains enforceable, the Court should order CLS to comply with all ofits terms, including the payment of requisite fees, in order to give effect to the individualarbitrations. B. The Court Should Order CLSto Specifically Perform the Arbitration Agreement 1. The Court Should Enforce the Arbitration Agreements Ifthe Court finds that the Agreement remains enforceable, the Court should order CLSto comply with all the terms ofthe Agreement, including the paymentoffees for individual arbitrations. A short summary ofCLS’s conductis instructivein illustrating the inequitable conduct at issue. In the Jong-running /skanian action,five subclasses were certified in 2009. However, after four years of litigation and less than two monthsbeforetrial, CLS renewed its motion to compel arbitration, arguing that the court must‘ensure that private arbitration agreements are enforced accordingto their terms.” (Def.’s Mot. for Renewal, at 6:14-15, citing AT&TMobilityLLC v. Conception, 131 8. Ct 1740, 1748 (2011) (quoting Volt Information Sciences v. Board ofTrustees ofLeland StanfordJunior Univ, 489 US. 468, 478 (1989)). CLShighlighted language from the Agreement, including, “each of EMPLOYEEand COMPANY shall only submit their own individual claims in arbitration and will not seek to represent the interests ofany other person.” (Def.’s Mot. for Renewal, at 2:17-19.) CLSeventually prevailed on its argument that Gentry was preempted by the FAA under Concepcion. Consequently, the Jskanian court dismissed the class claims with prejudice and ordered plaintiff to individual arbitration. (Order Granting Mot. for Renewal, at 2, attached to the RJN as Page 7 MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OFINDIVIDUAL ARBITRATION; OR, JN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C 18 00 C E N T U R Y P A R K E A S Y . S E C O N T F L O O R . L O S A N G E L E S , C A L I F O R N E S 90 06 7 F P Ww W W N 10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 3.) While the Iskanian plaintiff appealed the ruling, certain former members ofthe decertified class decided to take CLSat its word and demandedindividualarbitration. However, faced with parties who actually seek to arbitrate individually, CLS becameevasive. First, CLS contendedthat ADR, despite being identified in CLS’s own form arbitration agreementas an acceptable provider of arbitration, could not administer the arbitration. (Perez Decl., 4 16; Exhibit B.) When Plaintiffs acceded to CLS’s demandsto conductarbitration with AAA, CLSagain refused to cooperate. (Perez Decl., § 18; Exhibit C.) CLSinsteadtried to box Plaintiffs in by adopting a new posture: that even though Plaintiffs are precluded from conducting class-wide arbitration under CLS’s Agreement, Plaintiffs must nonetheless “consolidate”their arbitrations in spite the Agreement’s express mandate under paragraph 16(b)that parties shall “only submit their own individualclaimsin arbitration.” (See Exhibit C.) In other words,after vigilantly arguing thatall disputes must be resolved through individualarbitrations to defeat the class action, now that some employees haveactually agreed to individualarbitrations, CLS opposes that as well. Aside from being fundamentally unfair and evidencing bad faith, CLS’s position is belied by the languagein its own arbitration Agreement. Indeed,it was only by arguing that the Agreement must be enforced “accordingto its terms” that CLS was able to defeat class arbitration. However, no soonerhad CLSobtainedits desired forum didit shift to a second, contradictory posture. Where individualarbitration was once the embodimentofthe parties’ expectations ~ the only forum which CLS and employeespurportedly agreed to avail themselves — the very same forum is nowinefficient, prohibitively expensive, and cannot govern the parties’ dispute. (See Mot. to Consolidate Arbitrations, at 8:20-10:15.) These two positions cannot be reconciled. By now,itis clear that CLS’s only consistent position is to do whateverit takes to deprive Plaintiffs ofa forum to adequately adjudicate their claims. To redressthe effects ofthis bad faith conduct, Court should order CLSto pay fees to AAA for separate arbitrations with each individual Plaintiff. 2. Plaintiffs Have Also Satisfied Other Injunctive Relief Factors Meetingtraditional requirements for injunctiverelief is not necessary because the Court has Page 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OFINDIVIDUALARBITRATION;OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C [8 00 C E N T U R Y P A R R U S S TE . S E C O N D F L O O I L L O S A N G I ES , C A L T S O R N L A CO 00 7 o O O U O e O U m M G N C U D 11 12 14 1) 16 17 18 19 20 2] 22 23 24 25 26 27 28 independentstatutory authority to issue an injunctive orderto effectuatearbitration. Nonetheless, Plaintiffs can alternatively obtain injunctivereliefon statutory grounds. Under CodeofCiv.Proc. § 526(a)(3), an injunction mayissue if“a party to the action is doing, or threatens, or is about to do. ..somein act in violation ofthe rights ofanotherparty to the action. . .and tendingto render the judgment ineffectual.” In addition, an injunction may issue where legal remedy is inadequate, such as when “compensation would notafford adequate relief.” Code ofCiv. Proc. § 526(a)(4). Inadequate legal remedy will be found “where it would be extremelydifficult to ascertain the amount of compensation which would afford adequatelegal relief. Code Civ. Proc. § 526(a)(5). These factors are satisfied here. Plaintiffs are left with no way ofobtaining monetary damages because no forum is available to adjudicate their claims to make such an award. See Dept. ofFish & Game v. Anderson-CottonwoodIrrig. Dist., 8 Cal. App. 4th 1554, 1564 (1992) (holding that an injunction should be granted where monetary damages are prohibited by law). CLSis interfering with its employees’ nghts by preventing individual adjudication oftheir claims in any forum. This is exactly the kind ofviolation of rights — in this case, Plaintiffs’ due process rights — that would render judgment ineffectual. In these unusual circumstances, Plaintiffs could not even “renderjudgment” against CLS, since CLS’s misconduct has stymied Plaintiffs from being able to resolve the dispute altogether. Indeed,ifPlaintiffs were to file a separate action to pursue their wage and hourclass action in court, CLS would likely invokecollateral estoppel based on its Motion for Renewal ofPrior Motion to Compel Arbitration to compelthis action to arbitration — which CLS would then refuse to fund. The end result is that Plaintiffs would be left in the same position — without a forum to resolvetheir claims. An injunction is both proper and necessary becausePlaintiffs cannot obtain compensatory damages. The monetary value ofCLS breaching its own Agreement cannotbe ascertained because it is purely a forum-selection agreement. And a breach of the agreementwill yield no liquidated damages or compensatory damagesthat could be readily calculated. With no adequate legal remedy, the Court is empoweredto prant injunctive reliefby ordering CLSto pay individualarbitration fees to prevent gross injustice. Page 9 MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P AP C. P R A C E N T U R Y B A R K E A S T , S E C O N D F L O O M , . L O S A N G P L E S , C A L I F O R N I A “ 0 0 6 7 o o O o O o S N D H 1] 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 3. The Doctrine ofJudicial Estoppel Bars CLS From Compelling Individual Arbitration of Employees and Subsequently Opposing Same Judicial estoppel “precludesa party from gaining an advantage bytaking oneposition, and then seeking a second advantage by taking an incompatible position.” Aguilar v. Lerner, 32 Cal. 4th 974, 986 (2004). This doctrine applies when “(1) the sameparty has taken twopositions; (2) the positions were takeninjudicial or quasi-judicial administrative proceedings; (3) the party was successfulin assertingthefirst position(i.e., the tribunal adopted the position or acceptedit as true); (4) the twopositionsare totally inconsistent; and (5) the first position was not taken as a result of ignorance,fraud, or mistake.” Jackson v. County ofLos Angeles, 60 Cal. App. 4th 171, 183 (1997). All ofthese elements are met here. After CLS prevailed in court onits position that only individualarbitrations with employees are permitted under the Agreement,it took the opposite position once certain employees decidedto proceedin individual arbitration. Because CLS has taken these calculated positions, which were set forth in affirmative motion papers after presumed consultation with its counsel, it cannot be relieved from estoppel on the groundsofignorance, fraud or mistake. CLS’s stated grounds for refusing to pay for individualarbitrations are invalid underthe doctrine ofjudicial estoppel. Furthermore, CLS should be judicially estopped from taking any position that impairs a Plaintiff from resolving his or her dispute through individualarbitration that CLSitselfhad previously compelled. Cc. In the Alternative, the Court Should Rescind or Set Aside the Agreement Because It Cannot Be Enforced Altematively, the Court may revoke CLS’s Arbitration agreementifsuch grounds exist. See Cal. Code Civ. Proc. § 1281.2(b). Three groundsexist to rescind or set aside the Agreement. First, the agreement should beset aside or rescinded due to impracticability or impossibility ofperformance due to factors outside ofPlaintiffs’ control. Second, CLSshould be equitably estopped from benefiting from asserting positions that have caused injury to Plaintiffs. Finally, because CLS has clearly breachedthe material terms ofthe Agreementbyrefusing to pay the AAA as obligated, the Agreement may be rescinded. Page 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OFINDIVIDUALARBITRATION; OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L .z RO UP A P G {S DB C E N T U R Y B A R N h i e ? 2 S E C O N D F L O O M L O S A N G E L E S , C M L I F O b ? a o N N DB O W N A o 0 . 1. The Agreement Cannot Be Enforced Due to Impracticability. Under California Jaw, impracticability related to the difficulty and expense ofperformance may provide groundsto excuse performance. Kennedy v. Reece, 225 Cal. App. 2d 717, 724-25 (1964). As Kennedly explained, the impracticability defense is an “enlargementofthe meaning of “impossibility” as a defense.” /d. at 725. This doctrine may be invoked against contractual enforcement, “[wJhere, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence ofan event the non-occurrence ofwhich was a basic assumption on which the contract was made.” Maudlin v. Pacific Decision Sciences Corp., 137 Cal. App. 4th 1001, 1017 (2006) (quoting Rest.2d Contracts, § 261). Furthermore, under the FAA Section 2, general defenses to the enforceability ofcontracts are preserved, and the Court mayhold anarbitration agreement unenforceable undera valid contractual enforcement defense. 9 U.S.C. § 2. See also Doctor’s Assocs. v. Casarotto, 517 U.S. 681, 687 (1996) (“[G]enerally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening § 2”). CLS’s Agreement requires AAA to administer the arbitration, but, due to CLS’s chicanery, AAA now refuses to work with CLS. Therefore, the Agreement cannot be enforcedas it is written. Through nofault ofPlaintiffs, the Agreement now cannotbe performedbyeither party. When the Iskanian court granted CLS’s motion to compel individualarbitration,it did so after CLS highlighted the principle purpose of the FAA, which is to ‘ensurethat private arbitration agreements are enforced accordingto their terms.” (See Def. Mot. for Renewal, at 6:14-15, quoting Conception, 131 S. Ct at 1748.) However, CLS’sexalted, “most important” idea — that the termsofthe Agreement are the only onesthat give effect to the parties’ expectations — must be consistently applied. Ifthe class and representative action waivers contained in the Agreementare to be enforced by Court, then so too should all ofthe other terms. One such term requires that only the AAA may administerthe arbitration. Under paragraph 16(a) ofthe Agreement, the arbitration shall be governed by the “then-currentdispute resolution rules and procedures ofthe American Arbitration Association.” CLSreiterated this position in its letter declining to arbitrate with ADR Services, stating that the “the arbitration agreementatissue invokes Page 1} MEMORANDUMOFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUALARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C I s ) C E N T E R Y P A R R E A S T , S E C O N D F L O O K . L O S A N G E L E S , C A L I F O R N I A “ f e ? 10 1] 12 13 15 16 17 18 19 20 2] 22 23 24 25 26 27 28 the services ofthe American Arbitration Agreement (“AAA”), and requires that the parties follow AAA’srules.” (See Exhibit B.) Under the AAArules, “whentheparties agree to arbitrate under these rules . . . they thereby authorize the AAA to administerthe arbitration.” (AAA Emp. Arb. Rules and Med. Proc., Rule 3.) CLS’s position was reinforced in Maggio v. Windward Capital Management Co., 80 Cal. App. 4th 1210, 1213 (2000), which held that only AAA can administerthe arbitration when an agreement sets forth that the arbitration is governed “according to AAA rules.” Thus, by the narrow interpretation ofthe Agreement that CLS has urged, the only service that may administer the arbitration is AAA. However, due to CLS’srecalcitrance, AAA will no longer administer any arbitrations to which CLSis a party, going so far as to demand that CLS “remove the AAA namefromits arbitration clauses so that there is no confusion to the company’s employees regarding our decision.” (Perez Decl., 4 19; Exhibit D.) This developmentrenders a material condition ofthe Agreement impracticable — ifnot impossible — to perform. Theparties currently have no meansto submit their arbitral claims to the appropriate administrative body, since the sole body authorized to do so, AAA, now refuses to accept their submissionsafter it unequivocally rejected CLS as a customer. Because the parties did not bargain for any other body to administerthe arbitration, the Court mayset aside the Agreement underthe general contract defense ofimpracticability or impossibility. Once the Arbitration Agreementis set aside, the parties may again form class for the purposesofproceeding as a Class action. 2. The Arbitration Agreement Must Be Set Aside Due to Equitable Estoppel Equitable estoppel precludes a party from asserting rights “he otherwise would have had against another” when his own conduct rendersassertion ofthose rights contrary to equity. Metalclad Corp. v. Ventana Environmental Organizational Partnership, 109 Cal. App. 4th 1705, 1713 (2003). The elements ofequitable estoppelare the following: (1) The party to be estopped must know the facts; (2) he mustintend that his conduct shall be acted upon, or must so act that the party asserting the estoppelhad the rightto believe that it was so intended;(3) the party asserting the estoppel must be ignorant ofthe true state of facts; and, (4) he must rely upon the conductto his injury.” Nicolopulosv. Super. C1, 106 Cal. App. 4th 304, 311 (2003) (citation omitted). Page 12 MEMORANDUMOFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLINGSPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION;OR,IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C 18 00 C E S P E R V P A R I E A S T , S E C O N D F L O G I O L O S A N G E L E S , C A L T E Q R N G W 6 0 7 o l U l U C O l U l U C U M O O U M N N 1] 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This doctrine is “based on the theory that a party who by his declarations or conduct misleads anotherto his prejudice should be estopped from obtaining the benefits of his misconduct.” Cotta v. City and County ofSan Francisco, 157 Cal. App. 4th 1550, 1567 (2007). In the arbitration context, equitable estoppel has applied where “a party who has not signed a contract containing an arbitration clause may nonetheless be compelled to arbitrate when he seeks enforcement ofother provisions ofthe same contractthat benefit him.” Metalclad, 109 Cal. App. 4th at 1713. The principles ofequitable estoppel should work in the converse as well, to prevent enforcementofan arbitration agreement by a party which has selectively sought to enforceits provisions. Three separate reasons exist for invalidating the Agreement underthis doctrine. First, equitable estoppel is invoked where a party seeks to benefit by taking contradictory positions in bad faith. This is especially poignant as CLS deprived Plaintiffs oftheir class claims by arguing that the terms ofthe agreement mustbestrictly enforced, yet now seeksrelieffrom strict enforcement ofcontract on the rationale ofjudicial efficiency and costs-savings, which echo policy arguments in support ofclass actions. Under Code ofCivil Procedure 382, when “the question is one ofcommonor generalinterest, ofmanypersoris, or when the parties are numerous,andit is impracticable to bring them all before the court, one or more maysue or defend for the benefit of all.” One reason for judicial preference of class treatmentit to avoid the high costs andinefficiencies associated with a multiplicity ofsuits: Absent class treatment, each individual plaintiff would present in separate, duplicative proceedings the same or essentially the same arguments and evidence, including expert testimony. The result would be a multiplicity of trials conducted at enormous expense to both the judicial system and thelitigants. Sav-On Drug Stores, Inc. v. Super. Ct., 34 Cal. 4th 319, 340 (2004). Although CLSvigilantly attacked class treatmentofPlaintiffs, it proffers exactly the same rationale to support consolidation. CLS first argues that consolidation would “avoid repetitive, separate arbitrations dealing with commonissues of law and fact arising from the samesetoffacts.” (Def.’s Mot. for Consolidation, at 9:7-9.) Then, CLS contends that consolidation would “avoid unnecessary costs and delays”associated with individualarbitration. (/d. at 9:11-13.} Consolidation, according to CLS,will also “avoid repetitive and overlapping discovery” that would result with Page 13 MEMORANDUM OFPOINTS AND AUTHORITIESIN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA VI VE L E G A L G R O U P A P C 0 6 7 >, S E C O N D F L O O K YE O 5 A N G E L E S , C A L I F O R ' . 18 00 C E N T U M V P A R K + individualarbitrations. (/d. at 9:25-26.) By extolling the virtues of class treatment when convenient, CLSinadvertently concedesthat allowing the claimsto proceed as class action is an appropriate and fair remedy in light ofCLS’s continuing gamesmanship. Indeed, ifCLS is willing to engagein bad faith conduct to further the interests ofefficiency andcost-effectiveness,it should not complainifthe Court invalidates the arbitration agreementso that Plaintiffs’ claimsare resolved more efficiently and less expensively — as a classaction. Furthermore, when CLS moved to compelindividualarbitration in Jskanian, it had no intention ofactually arbitrating the class’s employment claimsindividually,as its subsequent conduct confirmed. Instead, CLS planned to default on the arbitrator’s fees in order to deprive Plaintiffs ofthe arbitral forum it demanded (and which was contractually provided). By contrast, Plaintiffs simply took CLSat its word and proceededto individual arbitration when CLSinsisted that the Agreement providesfor only this methodto resolvetheir dispute. CLS clearly misrepresented its intentions, and by doing so, prevented Plaintiffs from asserting their rights. Equitable estoppel should therefore apply to prevent CLS from unjustly reaping benefits from its misconduct. Separately, CLS’s subsequent conduct confirmsthat the fees provision, as stated in the Agreement, is a sham designed solely to prevent the Agreementfrom being invalidated on grounds of unconscionability. In California, an employee whosigns an arbitration agreementas a condition of employmentcannot beasked to “bear any type ofexpensethat the employee wouldnot be required to bear ifhe or she were free to bring the action in court.” Armendariz v. Foundation Health Psychcare Serv., Inc., 24 Cal. 4th 83, 110-111 (2000); see also Gutierrez v. Autowest, Inc., 114 Cal. App. 4th 77, 90 (2003) (invalidating an agreement as unconscionable when a provision required a consumerto pay the AAA initiation fee to arbitrate in an adhesion contract drafted by defendant). CLS’s inclusion of sucha term is an attempt to circumventjudicial scrutiny of its unconscionable arbitration system. CLS presents its Agreementas obligating it, the employer, to pay the arbitrator’s fee — thus ensuringthat the Agreement will not be held unconscionable on that basis. Yet when the arbitrator’s fee actually comes due, CLSrefuses to pay it. Therefore, in practice, the fee provision is ineffective since CLS will not comply withits terms. Instead, CLS choosesto pass the costs of arbitration to its employees, who are forced by CLS’sbreachinto the expensive propositionoffiling an action, and then a motion, in order Page 14 MEMORANDUMOFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT A P C IN IT IA TI VE L E G A L G R O U P IN DO C E N PU IC Y B A R R E A S T S F C O N D F L O G H , L O S S N G P T E S . C A L C R O R N E S H O G ? 10 11 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 to enforce the fee terms. Theissue now before the Court is simply what to do with a party that now refuses to participate in the individualarbitrationsthatit itself compelled. Becauseit is hard to imagine a more clear-cut case of bad faith conduct than CLS’shere, the Court should order an equitable remedy — either to compel CLStopayarbitration fees and participate in individual arbitration with each individual Plaintiff, or to set aside the Agreement under equitable estoppel or the impossibility or impracticability defense so that Plaintiffs may proceedtolitigate their class claims in Court. 3. Rescission Is An Appropriate Remedy Underthe Instant Facts The court may order rescission as a provisional remedy whenlegal remedies would not provide appropriaterelief. Lenard v. Edmonds, 151 Cal. App. 2d 764, 769 (1957) (affirming that rescission mayissue as a provisional remedy on a breach ofcontract). As established above, the traditional factors for injunctivereliefare satisfied, and CLShas clearly breached the Agreement by failing to tenderfees for individualarbitration as required. Therefore, the Court may rescind the Agreementso that the Parties maylitigate their claims in court. IV. CONCLUSION Based onthe foregoing, the Court should order CLS to pay the arbitration fees and take all necessary action to effectuate individualarbitrations with Plaintiffs. In the altemative, the Court should set aside the Agreement because CLSis equitably estopped from enforcing the agreement, or becausethe terms ofthe Agreement cannot be performed. Dated: November18, 2011 Respectfully submitted, Initiative Legal Group APC By: (Xs2 Raul Perez Melissa Grant Suzy E. Lee Attomeysfor Plaintiffs Page 15 MEMORANDUMOFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOFINDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT o O O o NH N D H U H F F W Y N H B o N O N O N Y N Y N Y N O N O R w m e e o N N W H F P W N Y K F O F B O O H I T H D H W F F W N Y K K O C Raul Perez (SBN 174687) RPerez@lnitiativeLegal.com Melissa Grant (SBN 205633) MGrant@lnitiativeLegal.com Suzy E. Lee (SBN 271120) SuzyLee@InitiativeLegal.com Initiative Legal Group APC 1800 Century Park East, 2nd Floor Los Angeles, California 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 Attomeys for Plaintiffs CONFORMED COPY OF ORIGINAL FILED Los Angeles Superior Court Conformed Cony donn A. Clarke utive Officer/Clerk By , Deputy SHA ESLEY SUPERIOR COURTOF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES GREG KEMPLER, ADRIEN WARREN, ANANTRAY SANATHARA, ANGELO GARCIA, ARTHUR POST, AVAAVAU TOAILOA, BELINDA WASHINGTON, BENNETT SLOAN, BRUCE GOLD, CARL MUELLER, CARL SWARTZ, CASSANDRA LINDSEY, CLEOPHUS COLLINS, DANIEL ARAYA, DANIEL ROGERS MILLINGTON, JR., DAROLD CALDWELL, DAVID BARANCO, DAVID MONTOYA, DAWN BINGHAM, EDWARD SMITH, EDWIN GARCIA, ELUHA NORTON, FLAVIO SILVA, FRANK G. DUBUY, GERALD GRIFFIN, GLEN ALSTON, IGOR KROO, JAMESC. DENISON, JAMES RICHMOND, JAMESSTERLING, JERRY BOYD, HRO FUMOTO, JOHNNIE EVANS, JONATHON SCOTT, JULIUS FUNES, KAREN BAILEY, KARIM SHARIF, KENNY CHENG, KUNG MING CHANG, LAMONT CRAWFORD, LEROY CLARK, LUIS EARNSHAW, MARCIAL SAZO, MARQUELROSE, MASOODSHAFI, MATTHEW LOATMAN, MIGUEL DE LA MORA, MYRON ROGAN, NEIL BEN YAIR, PATER PAULL, PATRICK COOLEY, RAFAEL CANDELARIA, RAUL FUENTES, REGINALD COLWELL, ROBERT OLMEDO, ROGER PERRY, SCOTT SULLIVAN, STEVE MAYNARD, SUSAN 5. BC 4UT3493 | CASE N DECLARATION OF RAUL PEREZ IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOFINDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT [Filed concurrently with the Notice ofMotion and Motion for Order Compelling Specific Performance ofIndividual Arbitration; or, in the Alternative, Setting Aside the Arbitration Agreement; Memorandum ofPoints and Authorities in Support Thereof; the Request for Judicial Notice; and [Proposed] Order] Date: 2. ] lo l (\ Time: 3°30 Am Place: D G2 Complaint Filed: DECLARATION OF RAUL PEREZ IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER COMPELLINGSPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT o O 6 S S N D B W H F& F W L O B R N P K N P O NY O K H K N D R N R o w m e m e t o o S N D N N W F F W H N H F H DB D O C O N D K H W D F& F W Y P O — & © STELLMAN, THOMASMARTIN, WAYNE IKNER, WILLIAM BANKER, AND WILLIAM PINKERTON, Plaintiffs, vs. CLS TRANSPORTATION LOS ANGELES LLC, a Delaware corporation; and DOES1 through 10, inclusive, Defendants. DECLARATION OF RAUL PEREZ IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OFINDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT O o C O N Y NW N N W F P W Y N & B O D N N H N H P H N H KO O N O H N w o w or m w m m e e l m a o n N DB D A F F W D N Y KS &§ C F B O F e D Q H B O B R W VH P K Y C S DECLARATION OF RAUL PEREZ I, Raul Perez, declare: I. I am an attorney admitted to the Bar ofthe State of California. I am an attorney at Initiative Legal Group APC (ILG), counsel of record for the above namedPlaintiffs (“Plaintiffs”) in this action. | make this declaration in support of Plaintiffs’ Motion for Order Compelling Specific PerformanceofIndividual Arbitration; or, in the Alternative, Setting Aside the Arbitration Agreement. Unless the context indicates otherwise, ] have personal knowledgeofthe following facts, and if called as a witness, I could and would testify competently to them. 2. On August 4, 2006, Plaintiff Arshavir Iskanian (“Iskanian”) brought wage and hour claims against CLS Transportation (“CLS”), on behalf of himself and a class ofcurrently and formerly employed CLS limousine drivers. On information andbelief, CLS is the largest provider of chauffeured limousine services in California. 3. Onor about February 9, 2007, Defendants moved for an order compelling individualarbitration based on the form Proprietary Information and Arbitration Policy/Agreement (“Agreement”) signed by Iskanian and putative class members as a condition of their employment true and correct copy ofthe Agreementis attached hereto as Exhibit A. On informationandbelief, not all Plaintiffs signed the Agreement, but paragraph 17 of the Agreement states that the terms of the Agreementare binding on all employeesirrespective of signing. 4. On or about March 13, 2007, the Iskanian Court granted Defendant’s motion for an order compelling individual arbitration. 5. Onor about May 11, 2007, Plaintiff immediately appealed the Iskanian Court’s decision in the California Court of Appeals, Second Appellate District, Case No. B198999. 6. While the appeal was pending, the California Supreme Court issued Gentry v. Superior Court, 42 Cal. 4th 443 (2007), which promulgated a fact-intensive test to determine whethera class action waiver is enforceable. 7. On or about May: 27, 2008, the Court of Appeals reversed and remanded the order compelling arbitration with specific instructions for the trial court to apply the new Gentry test to Page | DECLARATION OF RAUL PEREZ IN SUPPORTOF PLAINTIFFS’ MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT be nt O o S& S N Y D H N H FS F W W N R K D N d N K R D O K N D N B R D R t e e oO o N S D N WN W F& F W N Y -K - DO D O O F e H N K D H H F& F W N O = & the record. (A true and correct copy of the Slip Opinion is attached to the concurrently filed Request for Judicial Notice (“RIN”) as Exhibit 1.) 8. On remand, CLS, apparently conceding that the Gentry factors would be satisfied, decided to proceed to litigate the matter in state court. 9. Onor about August 24, 2009, the Iskanian trial court granted Plaintiff's contested class action motion, certifying five subclasses with Iskanian appointed as class representative for each subclass. 10.‘ The parties continued to litigate on a classwide basis, with a trial date set for August 6, 2011. ll. On May 16, 2011, less than sixty days before trial, CLS filed a Motion for Renewal of Its Prior Motion for Order Compelling Arbitration. (A true and correct copy of this Motion is attached to the RJN as Exhibit 2.) In the Motion for Renewal, CLS invoked the U.S. Supreme Court’s then-issued AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) to argue that Gentry has been preempted. CLSalso insisted in this motion that agreements “must be enforced according to their terms” under the Federal Arbitration Act. 12. On or about June 14, 2011, the Court granted Defendant’s motion and issued an order dismissing class claims and compelling Iskanian to individualarbitration. 13. Onor about August 11, 2011, Iskanian filed a notice of appeal based onthetrial court’s order compelling individual arbitration. 14. Beginning August 2011, former Iskanian class members Greg Kempler, Adrien Warren, Anantray Sanathara, Angelo Garcia, Arthur Post, Avaavau Toailoa, Belinda Washington, Bennett Sloan, Bruce Gold, Carl Mueller, Carl Swartz, Cassandra Lindsey, Cleophus Collins, Daniel Araya, Daniel Rogers Millington, Jr., Darold Caldwell, David Baranco, David Montoya, Dawn Bingham, Edward Smith, Edwin Garcia, Elijha Norton, Flavio Silva, Frank G. Dubuy, Gerald Griffin, Glen Alston, Igor Kroo, James C. Denison, James Richmond, JamesSterling, Jerry Boyd, Jiro Fumoto, Johnnie Evans, Jonathon Scott, Julius Funes, Karen Bailey, Karim Sharif, Kenny Cheng, Kung Ming Chang, Lamont Crawford, Leroy Clark, Luis Earnshaw, Marcial Sazo, Page 2 DECLARATION OF RAUL PEREZ IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT O o S e S N D O H N F F W Y L P = M O H N N Y Y Y Y O N O N Y N Y R m e e o O Y N D H W H F F W D N H = O F C O DO B n H H H B P W Y H | & Marquel Rose, Masood Shafii, Matthew Loatman, Miguel De La Mora, Myron Rogan, Neil Ben Yair, Pater Paull, Patrick Cooley, Rafael Candelaria, Raul Fuentes, Reginald Colwell, Robert Olmedo, Roger Perry, Scott Sullivan, Steve Maynard, Susan Stellman, Thomas Martin, Wayne Ikner, William Banker, and William Pinkerton retained ILG to represent them in their efforts. Retainer agreements were signed beginning in July 2011 to early September 2011. Each Plaintiff soughtto resolve his or her dispute through individualarbitration with CLS. 15. Beginning in August, 2011, each Plaintiff filed a demand for arbitration with ADR Services, Inc., which was named in the Agreement as a mutually accepted provider. 16. Ina letter to ADR Services, Inc. dated September 19, 2011, CLS’s counsel Yessenia Gallegos rejected the validity of Plaintiffs’ arbitration demands, maintaining that the American Arbitration Association (“AAA”) was the sole arbitrator under the Agreement. A true and correct of the September 19, 2011 Letter from Gallegos to Terry Shea, Arbitration Coordinator for ADR Services,Inc. is attached hereto as Exhibit B. 17. Beginning in September, 2011, and to avoid further delay and expense, each Plaintifftendered a $175.00 filing fee and demandedseparate arbitration proceedings with AAA. 18. In a letter to AAA dated October 10, 2011, CLS’s counsel confirmed that CLS will not pay the nonrefundable fee of $52,275 to AAA that it was obligated to pay under both its own Agreementand the AAArules, whichcall for the employer to pay a $925 refundablefee per arbitration. A true and correct copy ofthis letter from Gallegos to Adam Shoneck,Intake Specialist for AAA is attached as Exhibit C. Instead, in this letter, CLS offered numerous reasons for its refusal to pay, including “claimants are part of a class action thatis currently on appeal” and “we have not received anything authoritative confirming that claimants have opted outofthe class.” CLS then argued that the arbitrations should be consolidated. 19. On October 20, 2011, AAA sent a letter to Plaintiffs’ counsel and CLS counsel stating unequivocally that, because CLS “has not complied with [AAA’s] request to pay the requisite administrative fees in accordance with the employer-promulgated plan fee schedule, we "A true and correct copy ofthe current AAArulesis attached to the Request for Judicial Notice as Exhibit 5. Page 3 DECLARATION OF RAUL PEREZ IN SUPPORTOF PLAINTIFFS’ MOTION FOR ORDER COMPELLINGSPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION; OR,IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT o O S o N D N H S P Y W Y H — N O N O N O B D B R K N D R B R N w m m e e t C o N D O H FS F W Y N Y K H O F OB O O N D H W H F W N Y K F C O must decline to administer any other employmentdisputes involving this company.” AAA further added that CLS “remove the AAA namefromits arbitration clauses so that there is no confusion to the company’s employees regarding our decision.” A true and correct copy of the October 20, 2011 letter from Adam Shoneck,Intake Specialist for AAA, to Raul Perez and CLS’s counsel David Faustmanis attached hereto as Exhibit D. 20. Although CLSalleged that the action is stayed in the trial court pending the appeal, Defendantfiled a motion for consolidation ofarbitrations on October 27, 2011. In this motion, CLSarguesthat individual arbitrations are too expensive and inefficient and consolidation is needed to avoid the possibility of inconsistent judgments. (This motion is attached to the RIN as Exhibit 4.) 21. Plaintiffs are left without a forum to individually resolve their claims, which necessitate court intervention. I declare under penalty of perjury under the laws ofthe State of California and the United States of Americathat the foregoing is true and correct. Executed this 18" day ofNovember, (22 ew 2011, at Los Angeles, California. Rau! Perez Page 4 DECLARATION OF RAUL PEREZ IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER COMPELLINGSPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT EXHIBIT A PROPRIETARY INFORMATION AND ARBITRATION POLICY/AGREEMENT This Proprietary Information and Arbitration Policy/Agreement (“Policy/Agreement”) is entered into by and between ARSHAVIR ISKANIAN (hereinafter referred to as “EMPLOYEE”), on the one hand, and CLS WORLDWIDE SERVICES, LLC (hereinafter, together with parent, subsidiary and affiliated corporations andentities, and their successors and assigns, referred to as “COMPANY”), on the other hand. In consideration of the mutual representations, warranties, covenants and agreements set forth below, and for other good and valuable consideration, including EMPLOYEE'S employmentand/or continued employment and for other consideration, the receipt and sufficiency of which is hereby acknowledged, EMPLOYEEand COMPANY agreeas follows: 1. PROPRIETARY INFORMATON. a. EMPLOYEEunderstands that, by virtue of EMPLOYEE'S employment with COMPANY, EMPLOYEE will acquire and be exposed to Proprietary Information of COMPANY. “Proprietary Information”includes all ideas, information and materials, tangible or intangible, not generally known to the public, relating in any manner to the business of COMPANY,its products and services (including all trade secrets), its personnel (including its officers, directors, employees, and contractors), its clients, vendors and suppliers and all others with whom it does business that EMPLOYEE leams or acquires during EMPLOYEE’S employment with COMPANY. Proprietary Information includes, but is not limited to, manuals, documents, computer programs and software used by COMPANY,users manuals, compilations of technical, financial, legal or other data, salary information, client or prospective clientlists, names of suppliers or vendors, client, supplier or vendor contact information, customer contact information, business referral sources, specifications, designs, devices, inventions, processes, business or marketing plans or strategies, pricing information, information regardingthe identity of COMPANY'S designs, mock-ups, prototypes, and works in progress, all other research and development information, forecasts, financial information, and all other technical or business information. Proprietary Information does not include basic information that is generally known and used within the limousineindustry. b. EMPLOYEE agrees to hold in trust and confidence all Proprietary Information during and after the period of EMPLOYEE’S employment withCOMPANY. EMPLOYEEshall not disclose any Proprietary Information to anyone outside COMPANY without the written approval of an authorized officer of COMPANY or use any Proprietary Information for any purpose other than for the benefit of COMPANY as required by EMPLOYEE'S authorized duties for COMPANY. Atall times dunng EMPLOYEE'S employment with COMPANY, EMPLOYEEshall! comply with all of COMPANY'S policies. procedures, regulations or directives relating to the protection and confidentiality of Proprietary Information. Upon termination of EMPLOYEE’S employment with COMPANY, [a) EMPLOYEEshall not use Proprietary Information, or disclose Propnetary Information to anyone, for any purpose, unless expressly requested to do so in writing by an authorized officer of COMPANY, (b) EMPLOYEEshall not retain or take with EMPLOYEE any Propnetary Information in a Tangible Form (defined below), and (c) EMPLOYEEshal! immediately deliver to COMPANY any Proprietary Information in a Tangible Form that EMPLOYEE maythen or 1 of 9 thereafter hold or control, as well as all other property, equipment, documents or things that EMPLOYEEwas issued or otherwise received or obtained during EMPLOYEE’S employment with COMPANY. “Tangible Form” includes ideas, information or materials in written or graphic form, on a computer disc or other medium,or otherwise stored in or available through electronic, magnetic, videotape or other form. 2. NON-SOLICITATION OF CUSTOMERS/CLIENTS. EMPLOYEE acknowledges that, because of the nature of EMPLOYEE’S work for COMPANY, EMPLOYEE'Ssolicitation or serving of certain customers or clients would necessarily involve the unauthorized use or disclosure of Proprietary Information, and specifically trade secret information, as well as the proprietary relationships and goodwill of COMPANY. Accordingly, for one (1) year following the termination of EMPLOYEE’S employment with COMPANY for any reason, EMPLOYEEshail not, directly or indirectly, solicit, induce, or attempt to solicit or induce, any personorentity then knownto be a customer or client ofCOMPANY (a “Restricted Customer/Client”}, to terminate his, her or its relationship with COMPANY for any purpose, including the purpose of associating with or becoming a customer or client, whether or not exclusive, of EMPLOYEE or any entity of which EMPLOYEEis or becomes an officer, director, member, agent, employee or consultant, or otherwise solicit, induce, or attempt to solicit or induce, any Restricted Customer/Client to terminate his, her or its relationship with COMPANYfor any other purpose or no purpose; provided, however, this Section 2 seeks to protect COMPANY’Strade secrets and/or to prohibit EMPLOYEE from improperly disclosing or using Proprietary Information. Accordingly, if, dunng EMPLOYEE’S employment, EMPLOYEE never leamed nor was exposed to Proprietary Information regarding the identification of such customers/clients or customer/client contact information, pricing information, business development information, sales and marketing plan information, financial information or other Proprietary Information, EMPLOYEEshall not be restrained from such - solicitation or atternpted solicitation but EMPLOYEEshall not use any Propnetary Information during or in connection with any suchsolicitation, nor shall EMPLOYEEinterfere or attempt to interfere with COMPANY’S contractual or prospective economic relationships with any customerorclient through unlawful or improper means. 3. NON-SOLICITATION OF PERSONNEL. During EMPLOYEE’S employment with COMPANY andfor one (1) year thereafter, EMPLOYEEshail not, directly or indirectly, solicit, induce, or attemptto solicit or induce, any person known to EMPLOYEEto be an employee of COMPANY (each such person, a “Company Person”), to terminate his or her employment or other relationship with COMPANY for the purpose of associating with (a) any entity of which EMPLOYEEis or becomes an officer, director, member, partner, principal, agent, employee or consultant, or (b) any competitor of COMPANY,or otherwise encourage any CompanyPersonto terminate his or her employmentor other relationship with COMPANY for any other purpose or no purpose. 4. COMPETING ACTIVITIES. To protect COMPANY'S Proprietary Information, during EMPLOYEE’S employment with COMPANY, EMPLOYEEshall not engagein any activity that is or may be competitive with COMPANY in the limousine industry or otherwise in anystate in the United States, where COMPANY engagesin business, whether or not for compensation including, but not limited to, providing services or selling products 20f9 similar to those provided or sold by COMPANY,offering, or soliciting or accepting anoffer, to provide such services or to sell such products, or taking any action to form, or become employed by, a COMPANY or business to provide such services or to sell such products; provided, however, nothing in this Policy/Agreementshall be construed as limiting EMPLOYEE’Sability to engage in any lawful off-duty conduct. 5. RETURN OF DOCUMENTS AND MATERIALS. Immediately upon the termination of EMPLOYEE’S employment or at any lime prior thereto if requested by COMPANY, EMPLOYEEshail return all records, documents, equipment, proposals,notes,lists, files, and any and all other materials, including but not limited to Proprietary Information in a Tangible Form, that refers, relates or otherwise pertains to COMPANY and its business, includingits products and services, personnel, customers or clients (actual or potential), investors {actual or potential), and/or vendors and suppliers (actual or potential), or any of them, and any and all business dealings with said persons and entities (the “Retumed Property and Equipment’) to COMPANY atits offices in Los Angeles, California) EMPLOYEEis not authorized to retain any copies or duplicates of the Returned Property and Equipment or any Proprietary Information that EMPLOYEE obtained or received as a result of EMPLOYEE’S employment or other relationships with COMPANY. , 6. PROPRIETARY INFORMATION OF OTHERS/COMPLIANCE WITH LAWS. EMPLOYEEshall not breach any lawful, enforceable agreement te keep in confidence, or to refrain from using, the nonpublic ideas, information or materials of a third party, including, but not limited to, a former employer or present or former customer or client. EMPLOYEEshall not bring any such ideas, information or materials to COMPANY,or use any such ideas, information or materials in connection with EMPLOYEE’S employment by COMPANY. EMPLOYEE shall comply with all national, state, local and other laws, regulations and ordinances. 7. RIGHTS AND REMEDIES UPON BREACH. If EMPLOYEEbreaches, or threatens to commit a breach of, any of the provisions of this Policy/Agreement, EMPLOYEE agreesthat, in aid of arbitration and as a provisional remedy (or permanent remedy ordered by an arbitrator), COMPANY shall have the right and remedy to have each and every one ofthe covenants in this Policy/Agreement specifically enforced and the right and remedy to obtain temporary and permanentinjunctiverelief, it being acknowledged and agreed by EMPLOYEE that any breach or threatened breach of any of the covenants and agreements contained herein would cause irreparable injury to COMPANY and that money damages would not provide an adequate remedy at law to COMPANY. Moreover, if EMPLOYEEbreaches or threatens to commit a breach of this Policy/Agreement dunng EMPLOYEE’S employment with COMPANY, EMPLOYEE may be subject to the immediate termination of EMPLOYEE'S employment. In any proceeding seeking to enforce Sections 1 through 6 of this Policy/Agreement, the prevailing Party shall be entitled to recover all reasonable attorneys’ fees, costs and expenses, including any expert fees, which were incurred by that Party in connection with any such proceeding. 8. SEVERABILITY/BLUE-PENCIL. EMPLOYEEacknowledges and agreesthal (a) the covenants and agreements contained herein are reasonable and valid in geographic, 3 0f 9 temporal and subject matter scope andin all other respects, and do not impose limitations greater than are necessary to protect the goodwill, Proprietary Information, and other business interests of COMPANY;(b)if any arbitrator (or a court when COMPANY seeks a2 provisional remedy in aid of arbitration) subsequently determines that any ofsuch covenants or agreements, or any part thereof, is invalid or unenforceable, the remainder of such covenants and agreements shall not therebybe affected and shail be given full effect without regard to the invalid portions; and(c)if any arbitrator (or a court when COMPANY seeks a provisional remedy in aid of arbitration) determines that any of the covenants and agreements, or any part thereof, is invalid or unenforceable because of the duration or scope of such provision, such arbitrator (or a court when COMPANY seeks a provisional remedy in aid ofarbitration) shall have the power to teduce the duration or scope of such provision, as the case may be,and, in its reduced form, such provision shall then be enforceable to the maximum extent permitted by applicable law. EMPLOYEEintends to and hereby confers jurisdiction to enforce each and every one of the covenants and agreements contained in Sections 1 through 7 ofthis Policy/Agreement upon the arbitrators (or courts when COMPANY seeks a provisional remedyin aid of arbitration) of any jurisdiction within the geographic scope of such covenants and agreements, andif the arbitrator (or a court when COMPANY seeks a provisional remedy in aid of arbitration) in any one or more of such jurisdictions hold any such covenant or agreement unenforceable by reason of the breadth or scope or otherwise, it is the intention of EMPLOYEEthat such determination shal! not bar or in any way affect COMPANY’S right to the relief provided above in any other jurisdiction within the geographic scope of such covenants and agreements, as to breaches of such covenants and agreements in such other respective jurisdictions, such covenants and agreements as they relate to each jurisdiction being, for this purposes, severable into diverse and independent covenants and agreements. 9. CONFIRMATION OF AT-WILL EMPLOYMENT. Unless EMPLOYEE and COMPANY haveotherwise entered into an express, written employment contract or agreement for a specified term, EMPLOYEE and COMPANY acknowledge and agree that: (a) EMPLOYEE'S employment with COMPANY is and shall be atal} times oh an at-will basis, and COMPANY or EMPLOYEEmayterminate EMPLOYEE'S employmentat any time, for any reason, with or without cause or advance notice; (b) nothing in this Policy/Agreementor in COMPANY'S EMPLOYEE manuals, handbooks or other wnitten materials, and no oral statements or representations of any COMPANY officer, director, agent or employee, create or are intended to create an express or implied contract for employment or continuing employment, (c) nothing in the Policy/Agreement obligates COMPANY to hire, retain or promole EMPLOYEE,(d) all definitions, terms and conditions of this Policy/Apreement apply for purposesofthis Policy/Agreement, and for no other purpose, and do notalter or otherwise effect the at-will status of EMPLOYEE’S employment with COMPANY;and (e) no representative of COMPANY has anyauthority to enter into any express or implied, oral or written agreements that are contrary to the terms and conditions of this Policy/Agreement or to enter into any express ot implied contracts for employment(other than for at-will employment) except for the President, Chief Executive Officer or Chief Operaling Officer of COMPANY, and any agreement between EMPLOYEEand the President, Chief Executive Officer or Chief Operating Officer must be in writing and signed by EMPLOYEEand the President, Chief Executive Officer or Chief Operating Officer. 4 of 9 10. INFORMATION ON COMPANY PREMISES. EMPLOYEEacknowledges that, by virtue of EMPLOYEE’S employment with COMPANY, EMPLOYEEwill have use of the premises and equipment ofCOMPANY including the electronic mail systems, the computer system, internet access, and the voicemail system (collectively, the “COMPANY Information Systems”). EMPLOYEE acknowledges and agrees that (a) COMPANY Information Systems shall be used solely for COMPANY business and shall not be used for personal business, (b) EMPLOYEEhas no right to privacy in any matter, file or information that is stored or transmitted on COMPANY Information Systems, and (c) COMPANY reserves the right to monitor or inspect any matter or file EMPLOYEEsends, stores, receives, or creates on COMPANY Information Systems, even if they contain EMPLOYEE’S personal information or materials. In addition, EMPLOYEE acknowledges and agrees that (a) EMPLOYEEhas no right to privacy in any items, property, documents, materials, or other information that is contained, stored or transported in COMPANY’S vehicles, and (b) COMPANY reserves the night to monitor or inspect any items, property, documents, materials, or other information that is contained, stored or transported in COMPANY’S vehicles, even if they contain EMPLOYEE’S personal property, information or materials. 11. GOVERNING LAW. This Policy/Agreement shall be construed, interpreted, and governed in accordance with either (a) the laws of the State of California, regardless of applicable conflicts of law principles, or (b) in the event of a breach of any ofthe covenants contained in Sections | throuph 6, the law of the State where such breach actually occurs, depending on whichever choice oflaw shall ensure to the maximum extent that the covenants shall be enforced in accordance with the intent of the Parties as reflected in this Policy/Agreement. 13. ENTIRE AGREEMENT/MODIFICATION/INO WAIVER. This Policy/Agreement (a) represent the entire agreement of the Parties with respect to the subject matter hereof, (b) shall supersede any and all previous contracts, arrangements or understandings between the Parties hereto with respect to the subject matter hereof, and (c) may not be modified or amended except by an instrumentin writing signed by each ofthe Parties hereto. 14. PARTIES IN INTEREST/ASSIGNMENT/SURVIVAL. Neither this Policy/Agreement nor any of the rights, interests or obligations under this Policy/Agreement shall be assigned, in whole or in part, by operation of law or otherwise, by EMPLOYEE. COMPANY may sell, assign, and transfer all of its right, title and interests in this Policy/Agreement without the prior consent of EMPLOYEE, whether by operation of law or otherwise, in which case this Policy/Agreement shall remain in full force after such sale, assignment or other transfer and may be enforced by (a) any successor, assignee or transferee of all or any part of COMPANY'Sbusiness as fully and completely as it could be enforced by COMPANY if no suchsale, assignmentor transfer had occurred, and (b) COMPANY inthecase of any sale, assignment or other transfer of a part, but notall, of the business. The benefits under this Policy/Agreement shall inure to and may be enforced by COMPANY,andits parent, subsidiary andaffiliated corporations and entities, and their successors, transferees and assigns. EMPLOYEE’Sduties and obligations under this Policy/Agreement shall survivethe termination of EMPLOYEE’S employment with COMPANY. 5 of 9 15. NOTIFICATION TO NEW EMPLOYER. EMPLOYEEunderstands that the various terms. and conditions of this Policy/Agreement shall survive and continue after EMPLOYEE’S employment with COMPANY terminates. Accordingly, EMPLOYEE hereby expressly agrees that COMPANY may inform EMPLOYEE’S new employer regarding EMPLOYEE’Sduties and obligations under this Policy/Agreement. 16. ARBITRATION. a. EMPLOYEE and COMPANY agree that any and all disputes that may arise in connection with, arise out of or relate to this Policy/Agreement, or any dispute that relates in any way, in whole or in part, to EMPLOYEE’S hiring by, employment with or separation from COMPANY,or any other dispute by and between EMPLOYEE, on the one hand, and COMPANY,its parent, subsidiary andaffiliated corporations and entities, and each of their respective officers, directors, agents and employees {the “Company Parties”), on the other hand, shal] be submitted to binding arbitration before a neutral arbitrator (who shall be retired judge) pursuant to the then-current dispute resolution miles and procedures of the American Arbitration Association (“AAA”), or such other rules and procedures to which the Parties may otherwise agree. This arbitration obligation extends to any and all claims that mayarise by and between the Parties and, except as expressly required by applicable law, extends to, without limitation, claims or causes of action for wrongfultermination, impairmentofability to compete in the open labor market, breach of express or implied contract, breach of the covenant of good _faith and fair dealing, breach of fiduciary duty, breach of duty of loyalty, fraud, - misrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, disability, loss of future earnings, and claims under any applicabie state Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal equal employment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Actof 1964, as amended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988, as amended, the Americans With Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Family Medical Leave Act, as amended, the Employee Retirement Income Security Act of 1974, as amended, the Age Discnmination in Employment Act, as amended, the California Fair Employment and Housing Act, as amended, the Calhifomia Family Rights Act, as amended, the California Labor Code, as amended, the California Business and Professions Code, as amended, and all other applicable state or federal law. COMPANY and EMPLOYEEunderstand and agree that arbitration of the disputes and claims covered by this Policy/Agreementshall be the sole and exclusive method of resolving any and al] existing and future disputes or claims arising by and between the Parties; provided, however, nothing in this Policy/Agreement should be interpreted as restricting or prohibiting EMPLOYEE from filing a charge or complaint with a federal, state, or local administrative agency charged with investigating and/or prosecuting complaints under any applicable federal, state or municipal law or regulation, but any dispute or claim that is not resolved through the federal, state, or focal agency must be submitted to arbitration in accordance with this Policy/Agreement. b. COMPANY and EMPLOYEEfurther understand and agree that claims for workers’ compensation benefits, unemployment insurance, or state or federal disability insurance are not covered by this Policy/Agreement and shall therefore be resolved in any 6 of 9 appropriate forum, including the Workers’ Compensation Appeals Board,as required by the laws then in effect. Furthermore, except as otherwise required underapplicable law, (1) EMPLOYEE and COMPANY expressly intend and agree’ that class action and representative action procedures shall not be asserted, nor will they apply, in any arbitration pursuant to this Policy/Agreement; (2) EMPLOYEE and COMPANYagree that each will not assert class action or representative action claims against the other in arbitration or otherwise; and (3) each of EMPLOYEE and COMPANYshall only submit their own, individual claimsin arbitration and will not seek to represent the interests of any other person. c. Any demandforarbitration by either EMPLOYEE or COMPANY shall be served or filed within the statute of limitations that is applicable to the claim(s) upon which arbitration is sought or required. Any failure to demand arbitration within this time frame and according to these rules shali constitute a waiverof all rights to raise any claims in any forum arising outof any dispute that was subject to arbitration to the same extent such claims would be barred if the matter proceeded in court (along with the same defenses to such claims). d The Parties shall select a mutually agreeable arbitrator (who shall be a retired judge) from a list of arbitrators provided by ADR Services, ARC, Judicate West, or JAMS/Endispute. If, however, the Parties are unable to reach an agreement regarding the selection of an arbitrator, without incorporating the California Arbitration Act into this Policy/Agreement, the Parties nevertheless agree that a neutral arbitrator (who shall be a retired judge) shall be selected or appointed in the manner provided under the then-effective provisions ofthe California Arbitration Act, California Code ofCivil Procedure section 1282 et seq. e. The arbitration shall take place in Los Angeles, Califomia, or, at EMPLOYEE'S option, the state and county where EMPLOYEE works or last worked for COMPANY. f. This arbitration agreement shall be governed by and construed and enforced pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and not individual state laws regarding enforcement ofarbitration agreements or otherwise. The Arbitrator shall allow reasonable discovery to prepare for arbitration of any claims. At a minimum, without adopting or incorporating ‘the California Arbitration Act into this Policy/Agreement, the Arbitrator shall ~ allow at least that discovery that is authorized or permitted by Califomia Code of Civil Procedure section 1283.05 and any other discovery required by law in arbitration proceedings. Nothingin this Policy/Agreement relieves either Party from any obligation they may have to exhaust certain administrative remedies before arbitrating any claims or disputes under this Policy/Agreement. g. In any arbitration proceeding under this Policy/Agreement, the Arbitrator shal] issue a written award that sets forth the essential findings and conclusions on which the award is based. The Arbitrator shall have the authonty to award anyrelief authonzed by law in connection with the asserted claims or disputes. The Arbitrator’s award shall be subject to correction, confirmation, or vacation, as provided by any applicable governingjudicial review of arbitration awards. 7 of 9 h. Unless otherwise provided or permitted under applicable law, COMPANY shall pay the arbitrator’s fee and any other type of expense or cost that EMPLOYEE would not be required to bear if he or she were free to bring the dispute or claim in court as well as any other expense or costthat is unique to arbitration. Except as otherwise required under applicable law (or the Parties’ agreement), COMPANY and EMPLOYEE shalt each pay their own attorneys’ fees and costs incurred in connection with the arbitration, and the arbitrator wilt not have authority to award attomeys’ fees and costs unless a statute or contract at issue in the dispute authorizes the award of attomeys’ fees and costs to the prevailing Party, in which case the arbitrator shall have the authonty to make an award ofattorneys’ fees and costs to the same extent available under applicable Jaw. If there is a dispute as to whether COMPANY or EMPLOYEEis the prevailing party in the arbitration, the Arbitrator will decide this issue. i. The arbitration of disputes and claims under this Policy/Agreementshall be instead ofa trial before a court or jury and COMPANY and EMPLOYEE understandthat they are expressly waiving any and all rights to a trial before a court and/or jury regarding any disputes and claims which they now have ot which they may in the future have that are subject to arbitration under this Policy/Agreement; provided, however, nothing in this Policy/Agreement prohibits either Party from seeking provisional remedies in court in aid of arbitration including temporary restraining orders, preliminary injunctions and other provisional remedies. 17. COMPANY POLICY. The foregoing provisions of this Policy/Agreement are binding upon EMPLOYEE and COMPANY irrespective of whether EMPLOYEE and/or COMPANY signsthis Policy/Agreement. The terms and conditions of this Policy/Agreement describe some of COMPANY'S policies and procedures and supplement such policies and procedures set forth in COMPANY’S EMPLOYEE handbook and other policy and procedure statements or communications of COMPANY. EMPLOYEE'S and COMPANY'Ssignatures on this Policy/Agreement confirms EMPLOYEE’S and COMPANY’S knowledge ofsuch policies and procedures and EMPLOYEE’S and COMPANY'S agreement to comply with such policies, procedures, and terms and conditions of employment and/or continuing employment. EMPLOYEEaffirmatively represents that EMPLOYEE has other comparable employment opportunities available to EMPLOYEE (other than employment with COMPANY)and EMPLOYEEfreely and voluntarily enters mto this Policy/Agreement and agrees to be bound by the foregoing without any duress or undue pressure whatsoever and without relying on any promises, representations or warranties regarding the subject matter of this Policy/Agreement exceptfor the express terms of this Policy/Agreement. 8 of 9 To acknowledge EMPLOYEE’Sreceiptofthis Policy/Agreement, EMPLOYEEhas signed this acknowledgementon the day and-year written below; but, EMPLOYEEand COMPANY are bound by the Arbitration Policy/Agreement with or without signing this Policy/Apgreement. EMPLOYEE LE Name: AR SHAY;R_ [SARAPAA ; . Address. 7éS-C Méer fA Ar-H. HbtC. CR*- Y/66S Date: {2 +23/ , 2004 CLS WORLDWIDE SERVICES, Ly By:ZEB Co's: PAEALICENT«+ o9O Date: 72 = 2.oF , 2004 Los_Angeles:362501.2 820000. 1684 9of9 EXHIBIT B Fox Rothschild ue ATTORNEYS AT LAW 1800 Century Park East, Suite 300 Los Angeles, CA 90067-1506 Tel 310.598.4150 Fax 310.956.9828 www.foxrothschitd.com DATE: SEPTEMBER19, 2011 FACSIMILE TRANSMITTAL SHEET TO: COMPANY: FAX NUMBER: PHONE NUMBER: Raul Perez, Esq. and Initiative Legal Group 310-861-9051 310-556-5637 FROM: : PHONE NUMBER:EMAIL: BILLING NUMBER: Yesenia Gallegos (310) 598-4159 ygallegos@foxrothschild.com NUMBER OFPAGES: CHARGE FILE #: PRIORITY: LOG NUMBER: 30 15135-00005 REGULAR IF YOU DO NOT RECEIVE ALL OF THE PAGES, PLEASE CALL (310) 598-4150 AS SOON AS POSSIBLE. ORIGINAL DOCUMENT WILL FOLLOW BY MAIL Olurcint OFOR REVIEW oO PLEASE COMMENT (CIPLEASE REPLY MI FOR YOUR INFORMATION NOTES/COMMENTS: Arshavit Iskanian v. CLS Transportation Attached please find correspondence of today’s date. IRS CIRCULAR230 DISCLOSURE: PURSUANTTOTREASURY REGULATIONS,ANYTAX ADVICE CONTAINED IN ‘11S COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED ORWRITTLN TO BF USED,AND CANNOTBE USED ORRELIED UPON BY YOU ORANY OTHER PERSON, FORTHE PURPOSE OF @AVOIDING PENALTIES UNDERTHE INTERNAL REVENUF. CODF;, OR(i) PROMOTING, MARKETING OR RECOMMENDING TOANOTHER PARTY ANYTAX ADVICE ADDRESSED LIEREIN. TIHG INFORMATION CONTAINEDIN THIS FACSIMILE MESSAGEIS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION,DISTRIBUTION OR COPYING OF THIS COMMUNICATIONIS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATIONIN ERROR, PLEASE IMMEDIATELYNOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGETO US AT THE ABOVE ADDRESSVIA THE U.S. POS'TAL SERVICE. THANK YOU. LAI! 87267v1 05/26/11 Fox Rothschild up ATTORNEYS AT LAW 1800 Century Park East, Suite 300 Los Angeles, CA 90067-1506 Tel 310.598.4150 Fax 316.556.9828 www.faxrothschild.com : _ Yesenia Gallegos Direct Dial: (310) 598-4159 Email Address: ygallegos@foxrothschild.com September 19, 2011 VIA FACSIMILE AND FIRST CLASS MAIL Terry Shea Arbitration Coordinator ADRServices,Inc. 915 Wilshire Blvd., Suite 1900 Los Angeles, CA 90017 Re: Alston, Glen-ADR Case No. 11-5401 Araya, Daniel-ADRS Case No.11-5223 Bailey, Karen-ADR Case No. 11-5402 Baker, William-ADRS Case No. 11-5240 Baranco, David-ADRS Case No. 11-5197. Ben Yair, Neil-ADRS Case No. 11-5220 Boyd, Jerry-ADRS Case No. 11-5206 Caldwell, Darold-ADRS Case No. 11-5225 Candelaria, Rafael-ADRS Case No.11-5232 Chang, Kung Ming-ADRS Case No. 11-5212 Cheng, Kenny-ADRS Case No. 11-5202 Clark, LeRoy-ADRS Case No. 11-5213 Collins, Cleophus-ADRS Case No. 11-5291 Colwell, Reginald-ADRS Case No. 11-5233 Cooley, Patrick-ADRS Case No. 11-5231 De La Mora, Miguel-ADRS Case No. 11-5218 Denison, James-ADRS Case No. 11-5199 Dubuy, Frank G.-ADRS Case No. 11-5229 Earnshaw, Luis-ADRS Case No. 11-5201 Evans, Johnnie-ADRS Case No. 11-5208 Fuentes, Raul-ADRS Case No. 11-5404 Fumoto, Jiro-ADRS Case No. 11-5207 Funes, Julius-ADRS Case No. 11-5210 Garcia, Angelo-ADRS Case No. 11-5193 Garcia, Edwin-ADRS Case No. 11-5227 Griffin, Gerald-ADRS Case No. 11-5230 A Ferusytvania Liaute) iiabarty Farinerstp Califernia Connecticui Delaware Florida Nevada New Jersey NewYork Pennsyivania Ms. Shea September19, 2011 Page 2 Ikner, Wayne-ADRS Case No. 11-5239 Kempler, Greg-ADRS Case No. 11-5203 Kroo, Igor -ADRS Case No. 11-5204 Lindsey, Cassandra-ADRS Case No. 11-5222 Loatman, Matthew-ADRS Case No. 11-5217 Martin, Thomas-ADRS Case No. 11-5238 Maynard, Steve-ADRS Case No. 11-5236 Millington Jr, Daniel Rogers-ADRS Case No, 11-5224 Montoya, David-ADRS Case No. 11-5226 Mueller, Carl-ADRS Case No. 11-5196 Norton, Elijha-ADRS Case No. 11-5228 Olmedo, Robert-ADRS Case No. 11-5406 Paull, Pater-ADRS Case No. 11-5221 Perry, Roger-ADRS Case No. 11-5234 Pinkerton, William-ADRS Case No. 11-5293 Post, Arthur E.-ADRS Case No. 11-5405 Richmond, James-ADRS Case No. 11-5200 Rogan, Myron-ADRS Case No.11-5219 Rose, Marquel-ADRS Case No. 11-5215 Sazo, Marcial-ADRS Case No. 11-5214 Scott, Jonathan-ADRS Case No. 11-5209 Sharif, Karim-ADRS Case No. 11-5211 Shafii,Masood-ADRS Case No. 11-5216 Silva, Flavio-ADRS Case No, 11-5198 Sloan, Bennett-ADRS Case No. J1-5195 Smith, Edward-ADRS Case No. H-5181 Stellman, Susan-ADRS Case No. 11-5237 Sterling, James-ADRS Case No. 11-5205 Sullivan, Scott-ADRS Case No. 11-5235 Swartz, Carl-ADRS Case No. 11-5292 Toailoa, Avaavau-ADRSCase No. 11-5194 Warren, Adrien-ADRS Case No. 11-5192 Washington, Belinda-ADRS Case No. 11-5403 Dear Ms. Shea: This shal] respond to your recent request that CLS Transportation of Los Angeles, LLC and other named defendants select an arbitrator in the above-referenced matters. Please be advised that we do not recognize the purported Plaintiffs’ demands for arbitration as valid submissions. As a preliminary matter, the procedure you have provided for choosing an arbitrator is inconsistent with the requirement setforth in the arbitration agreementat issue, which requiresthat the parties select a retired judge as the arbitrator. In any event, the arbitration agreementat issue invokes LA] 101953v1 09/18/11 Ms. Shea September 19, 2011 Page 3 the services of the American Arbitration Association (“AAA”), and requires that the parties follow AAA’srules. Moreover, Plaintiffs’ counsel has not presented anything to show thatheis authorized by the purported Plaintiffs to initiate arbitration. If the purported Plaintiffs exist and seek to arbitrate, they will need to file with AAA andtender the appropriate fees. Should you have any questions, please feel free to call me. Very truly. yours, Yesenia Gallegos cc: Raul Perez, Esq. LAI 10195S3v1 O9/18/11 EXHIBIT C Fox Rothschild LUP ATICRNEYS AT LAW 1866 Century Park East, Suite 300 Los Angeies, CA 90067-1506 Tel 310.598.4150 Fex 310.556.9828 were foarcthschild.com Yesenia Gallegos Direct Dial: (310) 598-4159 Email Address: ygallegos@foxrothschild.com October 10, 2011 VIA FACSIMILE/FIRST CLASS MAIL Adam Shoneck Intake Specialist American Arbitration Association 1101 Laurel Oak Road, Suite 100 Vorhees, NJ 08043 Fax: 877-304-8457 Re: Glen Alston, et al. v. CLS Transportation of Los Angeles LLC,et al. Dear Mr. Shoneck: Weare in receipt of your letter of October 6, 2011, requesting that CLS Transportation of Los Angeles, LLC, CLS Worldwide Services, LLC, Empire International, Ltd., Empire/CLS Worldwide Chauffeured Services, GTS Holdings, Inc., and David Seelinger tender a non- refundable fee in the amount of $52,275.00 in the above referenced matter. Wedo notat this time recognize the validity of the filings. All of the claimantsare part of a class action that is currently on appeal. Wehave not received anything authoritative confirming that the claimants have opted outof the class, or that they even know that these demandsto arbitrate have been madeontheir behalf. If the demands are genuine, they are IDENTICALand the parties are IDENTICAL. Thearbitrations, therefore, should be completely consolidated before a single arbitrator with a substantially reduced fee for the employer. Very truly yours, Yesenia Gallegos Tahloria Connecticut Celaware Disvict of Cclumbis NowJersey NewYork Pennsy'varnia EXHIBIT D @ AmericanArbitrationAssociation phone: 877-495-4185 ispute Resolution Services Worldwide fax: 877-304-8457 October 20°, 2011 Case Filing Services 1101 Laure! Oak Road, Suite 100 Voorhees, NJ 08043VIA E-MAIL to rperez@initiativelegal.com www.adr.orgRaul Perez, Esq. Initiative Legal Group, APC 1800 Century Park East 2™ Floor Los Angeles, CA 90067 VIA E-MAIL to dfaustman@foxrothschild.com David F. Faustman, Esq. Fox Rothschild LLP {800 Century Park East Suite 300 Los Angeles, CA 90067 Dear Mr. Perez and Mr. Faustman: Asofthis date we have notreceived the fees requested from Respondentin myletter of October 6", 2011. On October 10", 2011, we receiveda letter from Ms. Gallegos confirming Respondent would not be paying the fees requested in the October 6", 2011 letter; accordingly, we must decline to administerthis case. Wewill issue afull refund for the fees paid by Claimants. Furthermore, since the Respondent has not complied with our requestto pay the requisite administrative fees in accordance with the employer-promulgated plan fee schedule, we must decline to administer any other employmentdisputes involving this company. We request that the business remove the AAA name from its arbitration clauses so that there is no confusion to the company’s employees regarding our decision. Sincerely, Adam Shoneck Intake Specialist 856-679-4610 ShoneckA@adr.org Supervisor Information: Tara Parvey, ParveyT@adr.org cc: VIA E-MAIL to ygallegos@foxrothschild.com Yesenia Gallegos, Esq. Fox Rothschild LLP 1800 Century Park East Suite 300 Los Angeles, CA 90067 O o O o H N H D F P W W N O O o N O S N B D N H B O N S O K R K N m m m e e S l e e o s a DB D N H F& F W S N Y - § FS D O o B H S I HD HD N n F& F W Y H |S ] O& O Raul Perez (SBN 174687) Conformed Gopy RPerez@InitiativeLegal.com Melissa Grant (SBN 205633) MGrant@lnitiativeLegal.com SonaINaLcpr Suzy E. Lee (SBN 271120) Los Angeles Superior Court SuzyLee@InitiativeLegal.com Initiative Legal Group APC 4 1800 Century Park East, 2nd Floor NOV 18 aot Los Angeles, California 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 Attomeysfor Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES GREG KEMPLER, ADRIEN WARREN, ANANTRAY SANATHARA, ANGELO GARCIA, ARTHUR POST, AVAAVAU NOTICE OF MOTION AND MOTION TOAILOA, BELINDA WASHINGTON, FOR ORDER COMPELLING SPECIFIC BENNETT SLOAN, BRUCE GOLD, CARL PERFORMANCEOF INDIVIDUAL MUELLER, CARL SWARTZ, CASSANDRA ARBITRATION;OR, IN THE LINDSEY, CLEOPHUS COLLINS, DANIEL ALTERNATIVE, SETTING ASIDE THE ARAYA, DANIEL ROGERS MILLINGTON, ARBITRATION AGREEMENT JR., DAROLD CALDWELL, DAVID BARANCO, DAVID MONTOYA, DAWN [Filed concurrently with Memorandum ofPoints BINGHAM, EDWARD SMITH, EDWIN and Authorities in Support Thereof; Declaration GARCIA, ELUHA NORTON, FLAVIO ofRaul Perez; the Request for Judicial Notice; SILVA, FRANK G. DUBUY, GERALD and [Proposed] Order] GRIFFIN, GLEN ALSTON, IGOR KROO, pate. 72 hhhen JAMESC. DENISON, JAMES RICHMOND, Time: 920 JAMES STERLING, JERRY BOYD, JIRO Place: © 42 FUMOTO, JOHNNIE EVANS, JONATHON SCOTT, JULIUS FUNES, KAREN BAILEY, Complaint Filed: KARIM SHARIF, KENNY CHENG, KUNG MING CHANG, LAMONT CRAWFORD, LEROY CLARK, LUIS EARNSHAW, MARCIAL SAZO, MARQUEL ROSE, MASOOD SHAFII, MATTHEW LOATMAN, MIGUEL DE LA MORA, MYRON ROGAN, NEIL BEN YAIR, PATER PAULL, PATRICK COOLEY, RAFAEL CANDELARIA, RAUL FUENTES, REGINALD COLWELL, ROBERT OLMEDO, ROGER PERRY, SCOTT SULLIVAN, STEVE MAYNARD, SUSAN NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOFINDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT oO o o N D H W H f F W Y N S O wp e K H H N W K N D N Y NH N F F F P K F F P F F P F P P P P P S S S B S R O R S F B F S F C H e r A A D A A e H N Y N e E C O STELLMAN, THOMAS MARTIN, WAYNE IKNER, WILLIAM BANKER, AND WILLIAM PINKERTON, Plaintiffs, vs. CLS TRANSPORTATION LOS ANGELES LLC, a Delaware corporation; and DOES1 through 10, inclusive, Defendants. NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT O o f o S s DB D A F P W N Y B o w o K H N Y N Y N Y N Y N Y N O | | ! e f | e e K S e e S c o D T T K A W B R B W N Y K F O O O N D H F F W N F F & TO DEFENDANT CLS TRANSPORTATION LOS ANGELES LLC AND ITS ATTORNEY OF RECORD: PLEASE TAKE NOTICE THATona date to be determined, in a Department to be assigned in the above-captioned court, located at 111 North Hill Street, Los Angeles, California, 90012, the Plaintiffs named above will, and hereby do move the Court for an order for compelling specific performanceofindividual arbitration;or, in the alternative, setting aside the arbitration agreement. Oncethe case is assigned to a judge in the above-captionedcourt, Plaintiffs willfile and serve an amended notice ofthis motion setting forth the date, time and place of hearing. Plaintiffs’ motion is made pursuant to California Code of Civil Procedure §§ 526, 1281.8(a)(3) and the Court’s equitable powers to specifically enforce the agreements for individual arbitration (“Agreement”). Specifically, Defendant has breached the Agreement with Plaintiffs by first compelling individualarbitration in Court, causing Plaintiffs’ class claims to be dismissed, and then refusing to participate in individual arbitration when Plaintiffs attempted to comply with the Court Order. Defendanthas taken specific acts, memorialized in writing, which repudiates the same Agreement that Defendant previously attempted to enforce in Court. Equity and justice wouldnot permit Defendantto take contradictory positions in order to deny Plaintiffs a forum to pursuetheir claims. Thus, Plaintiffs seek an order to secure an appropriate forum to adjudicate their claims. In the alternative, Plaintiffs moves to have the Court revoke, rescind, or set aside the Agreement pursuant to Code of Civil Procedure § 1281.2(b) andthe court’s equitable powers. This altemative remedy is made on three grounds. First, due to Defendant’s intransigence, the only body contractually permitted to administerthe arbitration, the American Arbitration Association, now flatly refuses to conduct business with Defendant. Dueto this impracticable condition,the Arbitration cannotbe performed and thus the Agreementshould beset aside to allow Plaintiffs to pursue their claims in Court. Second, Defendanthas taken contradictory positions in Court, whichis contrary to equity, in a clear attempt to deprive Plaintiffs oftheir due process. Though Defendant had heavily litigated a certified class action for four years, Defendant suddenly insisted that all matters must be resolved through individualarbitration within sixty days oftrial. It then successfully compelled Page } NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION;OR,IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT O o e o I N D H T H F P W D N Y b o I N O E O E n O o ee d individualarbitration ofthe named Plaintiff, with the remaining class members’ claims dismissed. WhenPlaintiffs demandedindividualarbitration, Defendantresisted, refusing to tender the requisite fees. Defendants finally filed a procedurally defective motion to consolidate the arbitration demands on groundsofefficiency and cost-effectiveness — which are the same bases for class actions. Defendant must thus be estopped from enforcing the Agreementsinceit had taken contradictory legal positions in an effort to deprive Plaintiffs ofthe right to adjudicate their claims. Lastly, the Agreements should be rescinded on the simple ground that Defendant unmistakably breached the Agreementbyfailing to tenderarbitration fees. Rescission is thus the most appropriate remedy to restore Plaintiffs’ rights. On any one ofthe three foregoing grounds, the Court should revoke, rescind, or set aside the Agreement and grantPlaintiffs leave to amend the complaint to allege their class wage and hourclaimsin this action. Plaintiffs’ Motion is based on this Notice of Motion, the accompanying Memorandum of Points and Authorities, the declaration of Raul Perez and all exhibits attached thereto, the Request for Judicial Notice and all exhibits attached thereto, all pleadings and papers on file in this action andin the related action Jskanian v. CLS Transportation Los Angeles LLC, Los Angeles Superior Court Case No. BC356521, and such other matters as may be presented to the Court at or before the time of the hearing. Dated: November18, 2011 Respectfully submitted, Initiative Legal Group APC By: (Xa(P RautPerez Melissa Grant Suzy E. Lee Attomeysfor Plaintiffs Page 2 NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C 18 00 C E N T U R Y P A R K E A S T , S E C O N D F L O O K , L O S A N G E L E S , C A L I F O R N I A 90 00 ? o O S e Y N D N O W F W Y N Y 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Raul Perez (SBN 174687) RPerez@lnitiativeLegal.com Melissa Grant (SBN 205633) MGrant@lhnitiativeLegal.com Suzy E. Lee (SBN 271120) SuzyLee@lnitiativeLegal.com Initiative Legal Group APC 1800 Century Park East, 2nd Floor Los Angeles, California 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 Attomeysfor Plaintiffs SUPERIOR COURT OF THE STATE OF C. FOR THE COUNTY OF LOS GREG KEMPLER, ADRIEN WARREN, ANANTRAY SANATHARA, ANGELO GARCIA, ARTHURPOST, AVAAVAU TOAILOA, BELINDA WASHINGTON, BENNETT SLOAN, BRUCE GOLD, CARL MUELLER, CARL SWARTZ, CASSANDRA LINDSEY, CLEOPHUS COLLINS, DANIEL ARAYA, DANIEL ROGERSMILLINGTON, JR., DAROLD CALDWELL, DAVID BARANCO, DAVID MONTOYA, DAWN BINGHAM, EDWARD SMITH, EDWIN GARCIA, ELISHA NORTON, FLAVIO SILVA, FRANK G. DUBUY, GERALD GRIFFIN, GLEN ALSTON, IGOR KROO, JAMESC. DENISON, JAMES RICHMOND, JAMES STERLING, JERRY BOYD,JIRO FUMOTO,JOHNNIE EVANS, JONATHON SCOTT, JULTUS FUNES, KAREN BAILEY, KARIM SHARIF, KENNY CHENG, KUNG MING CHANG, LAMONT CRAWFORD, LEROY CLARK, LUIS EARNSHAW, MARCIAL SAZO, MARQUEL ROSE, MASOOD SHAFI, MATTHEW LOATMAN, MIGUEL DELA MORA, _- MYRON ROGAN,NEIL BEN YAIR, PATER PAULL, PATRICK COOLEY, RAFAEL CANDELARIA, RAUL FUENTES, REGINALD COLWELL, ROBERT OLMEDO, ROGER PERRY, SCOTT SULLIVAN, STEVE MAYNARD, SUSAN STELLMAN, THOMAS MARTIN, CONFORMED COPY OF ORIGINALFILED Los Angeles Superior Court Conformed CQpys aa John A. Clarke utive Officer/C By Dep SHAI ESLEY (FORNIA GELES caseno: BeYT 393 | MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOFINDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT [Filed concurrently with the Notice ofMotion and Motion for an Order Compelling Specific PerformanceofIndividual Arbitration; or, in the Alternative, Setting Aside the Arbitration Agreement, Declaration ofRaul Perez, the Requestfor Judicial Notice, and [Proposed] Order] Date: 2| Jory Time: B.30 AW Place: DYywW Complaint Filed: MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOFINDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT erk uty IN IT IA TI VE L E G A L G R O U P A P C 1p u0 C E N T U R Y P A R K E A S T , S E C O N D F L O O R , L O S A N G E L E S . C A L T F O R N I S 95 06 7 S b 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WAYNE IKNER, WILLIAM BANKER, AND WILLIAM PINKERTON, Plaintiffs, vs. CLS TRANSPORTATION LOS ANGELES LLC,a Delaware corporation; and DOES1 through 10, inclusive, Defendants. O o © ~ n A MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OFINDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C 18 00 C E N T U R Y P A R C E A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N E A 00 00 7 n A F& F W H NH N O o S o NS N S D 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS T. INTRODUCTION...0.. oe ccccccceteeccnceececneecensetsccceenessesecesseneeasessseenaeesaaesestasssenessssseseesseensens I VW. FACTS AND PROCEDURE ..........c:ccescecsscessescceeceseeseecessessssteaeeseeneersessesssesacsaeceasscseeesenaees 3 THE. ARGUMENT...........cccccccccecsecseececceseeseceeeeseeneensesescuessenesneeaessersesisseessenscneraaensetenscseenseraees 5 A. The Court Has Jurisdiction to Order Specific Performance ofthe Agreement................. 5 B. The Court Should Order CLSto Specifically Perform the Arbitration Agreement........... 7 1. The Court Should Enforce the Arbitration Agreements ......00.....0 cceeeeee eee 7 2. Plaintiffs Have Also Satisfied Other Injunctive Relief Factors ..........0....eee 8 3. The Doctrine ofJudicial Estoppel Bars CLS From Compelling Individual Arbitration ofEmployees and Subsequently Opposing Same.............cseseeees 10 C. Inthe Alternative, the Court Should Rescind or Set Aside the Agreement Because It Cannot Be Enforced ..........0cccceecccceceecseeeeeeneencsstosseneessnaeeenseneessessnneeeeesssaesseaeneeens 10 1. The Agreement Cannot Be Enforced Due to Impracticability........0.00..cece 1] 2. The Arbitration Agreement Must Be Set Aside Due to Equitable Estoppel.......... 12 3. Rescission Is An Appropriate Remedy Under the Instant Facts.........0.....cceeee 15 TV. CONCLUSION 0.0... ccecccceeeeenscceteseeneeecesensnaeseeeeercseumecesseneneseeecetensacecstiseeeeseetiaaserenenasuaeae 15 Pagei MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OFINDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDETHE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L ( 3 R O U P A P C G e t 1 0 0 C E N P E R V P A R K E o J S E C O A T FL O G H . 1. 05 A N G E L B S , C A L I F O R S C o S e N N TABLE OF AUTHORITIES | STATE CASES Aguilar v. Lerner, 32 Cal. 4th 974 (2004) .........:cccecceceseeeeeceescesesteeeeeneeseensneserasessnessaseeseesnsneasenee 10 Armendariz v. Foundation Health Psychcare Serv., Inc., 24 Cal. 4th 83 (2000) .........-.2:sccscceseeesens 14 Cotta y. City and County ofSan Francisco, 157 Cal. App. 4th 1550 (2007).........cccccessseeseseeeeteeseees 13 Davenport v. Blue Cross, 52 Cal. App. 4th 435 (1997)......sssscccesesesessceescesstsaseeeesnesensnesesnessensveeeee Dept. ofFish & Gamey. Anderson-CottonwoodIrrig. Dist., 8 Cal. App. 4th 1554 (1992)... ecscsccccsscesessesesscsssssesassceseecesseoestoseseesscessstseesecsscansesersnsesecsseqeegstaenasaeaeuateseseesssoaerserensesees9 Freeman v. State Farm Mut. Auo Ins. Co., 14 Cal. 3d 473 (1975) .2.....escccsccesscencssceecesecnceesenesesteeeecees6 Gentry v. Superior Court, 42 Cal. 4th 443 (2007) ......cccccccccscseereceseceeeesensseeesceseeeesens 1, 3, 4, 8 Gutierrez v. Autowest, Inc., 114 Cal. App. 4th 77 (2003) ........:cesssessscseeeessssessseseeseeesteneessseesseseusnes 14 Jackson v. County ofLos Angeles, 60 Cal. App. 4th 171 (1997)........:sssseccssesrescessersensteteeesteseinenes 10 Kennedy v. Reece, 225 Cal. App. 2d 717 (1964)0... secceeeeeeeeeseeeeeeeeennneeeeeeneeeesenseneeseacnnseneensaes 1] Lenardv. Edmonds, 151 Cal. App. 2d 764 (1957) ...-.-:c+sessessssersesecuneess reste eeseaneeentenaneeanenenenseeene 15 Maggio v. Windward Capital Management Co., 80 Cal. App. 4th 1210 (2000)........---eeeceeeeeeenees 12 Maudlin v. Pacific Decision Sciences Corp., 137 Cat. App. 4th 1001 (2006)...........cesesceeerectercees 11 Metalclad Corp. v. Ventana Environmental Organizational Partmership, 109 Cal. App. Ath 1705 (2003) ooo. eececcccceeesecceneceeceeneeceseveatesesssnessceeeseusescenaeeseseeseeesneeseesenssesastenseseeenssntes 12, 13 Nicolopulos v. Super. Ct., 106 Cal. App. 4th 304 (2003).........:..cecseeecsseeeeensseeeeceseserseseceetneetseneens 13 Rosenthal v. Great Western Fin. Securities Corp., 14 Cal. 4th 394 (1996)..0..ieeeeeeeeeeeeee6 Sav-On Drug Stores, Inc. v. Super. Ct., 34 Cal. 4th 319 (2004)........ccesesecessecceneesseceenesteensecneessseees 13 FEDERAL CASES AT&TMobility LLC v. Concepcion, 131 S. Ct. 1740 (2011)...ccc cecceecceeentenetenteeneeeneecees 4,7, 8, 1} Doctor's Assocs. v. Casarotio, 517 U.S. 681 (1996)... ecceccecesesecetseeseeseneeeteeenesenersnenneeeensenenenes 1] Volt Information Sciences v. Board ofTrustees ofLeland StanfordJunior Univ, 489 US, 468 (1989) oe cecccccccceececsecseseeaceceaceesoeeereecorsneceeeearsenecsenseseessnaaeeesgeseasessecesscenecsenseaesorseeaaes 7 STATE STATUTES Cal. Civ. Proc. Code § 382. .o.....ecceceecceceeeseeeeeeeecneeeneneneeceneseneseseereeeeenearesereceeesscsestieseeseteenensaes 13 Page ii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C [8 00 C E N T E R Y P A R K E A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R S T A 90 06 7 o l U N U O O U l U U l U M m O U M N S OD N 1] 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal. Civ. Proc. Code § 526(a)(3) .....ccscccessecsecceenseeeseeeeeesseeceeesenaneeseneansesscensesnesesesanesersaesaceceeseeeases 9 Cal. Civ. Proc. Code § 526(a)(4) .....ececcccecceercecesseteeecessecnee coessnensessaeeessasaseenaenetsanensesensseasaereseeaenass 9 Cal. Civ. Proc. Code § 526(a)(5)......ccesscessecessceecrecenceersccecserenesneacsaenesscecoseseesseneeseeensenscseteaeeatenes9 Cal. Civ. Proc. Code § 1281.2(D)....... ee eceeeseceseeecceneeenereccececeeeecenesssesssesesueesgeseeseesseecssesseeeseeensenes 10 Cal. Civ. Proc. Code § 1282.3 oo o.ccccccecccceseceseneceseeseeeceeececceeecece ce secseecaenesaeeceseneseeeesaneceeeessaneeases2 Cal. Civ. Proc. Code § 1281.8(a)(3)........ccccesscsscecccsseeeetsecs sense rsteeneneesesstsesseeaesneeeaeesensesstseeeetesecaneas6 FEDERAL STATUTES Q U.S.C. § 2 coccceccssecsscssssscssvscsessrsssessesscsssssussssesessesecsessussvesssssenssecssessesssesseessuesuessiesnesseesessevese 1] Federal Arbitration Act (FAA)........:.c::::ccscccssesensenteseeesscecesseesacensessscceessessaseeetesseeneccenaseaes 4, 6, 8, 11 SECONDARY AUTHORITIES Rest.2d Contracts, § 261 2... ..ccesccecccssscececsseeenscesseecsneecseceeeseneaesessecceceessseneseacsseaceesasesenceciceeeneeesees 1] Page ili MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OFINDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C L8 00 C E N T U Y P A R I S E A S T , S E C O N D F L O L O S A R G E D ES , O A L I F O R S E S 80 06 ? C o O o A S N D 1] 12 13 14 16 17 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Overthe course ofone year, Defendant CLS Transportation Los Angeles LLC’s (“CLS”) have takenat least three contradictory positionsin an effort to deny Plaintiffs a forum to adjudicate their claims. CLS employedPlaintiffs as limousine drivers, and as a condition of their employment, required that each employee sign, or be bound by, an agreementcontaining an arbitration clause with class action and representative action waivers (“Agreement”).' However, when Plaintiffs attempted to arbitrate their claims as per the Agreement, CLS began its gamesmanship to deprive Plaintiffs oftheir due process rights. A provisional remedyis particularly appropriate here because, with this action, Plaintiffs are seeking to secure a forum to adjudicate their underlying substantive claims. Initially, CLS maintained that all disputes arising out ofLabor Codeviolations must be individually arbitrated under the Agreement. In June 2011, CLS successfully argued this position, obtaining a court order compelling individualarbitration and dismissing Plaintiffs’ class claimsin Iskanian v. CLS Transportation Los Angeles, LLC? (“Iskanian”) to which Plaintiffs had belonged as members ofa certified class. Following this order, in September 201 !, sixty-three former /skanian class members (“Plaintiffs”) filed individual arbitration demands with ADRServices,Inc. (“ADR”).? However, CLSrefused to recognize thevalidity ofPlaintiffs’ arbitration demands, arguing that only the American Arbitration Association (“AAA”) was authorized to administer the arbitrations. CLS instead demandedPlaintiffs submit their claimsto arbitration with AAA, otherwise they refused to ' A true and correct copyofthe Proprietary Information and Arbitration Policy/Agreement (“Agreement”) signed by Arshavir Iskanian is attached to the Declaration of Raul Perez as Exhibit A. On information and belief, many, but not all, of the Plaintiffs signed the Agreement. However, paragraph 17 of the Agreementstates that the terms ofthe Agreementare binding on all employeesirrespective of signing. Plaintiffs proceed in this action assuming they are bound by this form Agreement, as CLS had repeatedly contended they were. 2 Los Angeles Superior Court Case No. BC356521, consolidated with BC381065, assigned to Hon. Robert L. Hess. > Former class representative Arshavir Iskanian opted to file an appeal ofthetrial court’s order granting CLS’s motion to compelindividual arbitration, rather than file an individual arbitration claim. (See Iskanian v. CLS Transportation Los Angeles, LLC, No. B198999 (Cal. Ct. App. 2d Dist., May 27, 2008) (order remandingtrial court’s order compelling arbitration for application of the Gentry test) (“Jskanian appeal”).). A true and correct copy of the ship opinion is attached to the RJN as Exhibit 1. Page | MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OFINDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C . 1 B D O C E N T E R Y P A R K E A S T , S E C O N D F L O G H 1 , 0 8 A N G E L E S , C A L T F O R N L S " 6 0 0 7 o l U l N U O U U l U M O U C U M N S O N 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 recognize their validity. Yet when the conciliatory Plaintiffs acceded to CLS’s demand and tendered feesto initiate arbitration with AAA, CLS abruptly changedits position. Uponreceipt ofthe arbitration demands with AAA in October, 2011, CLS adopted a second position. Under the Agreement and AAA rules, CLS was obligated to pay $925.00 to commence the arbitration for each individual claimant. Rather than comply with the termsofthe Agreement, CLS adamantly refused to pay the non-refundable arbitration fee. Excuses accompanied the non-payment, including the baseless chargethat Plaintiffs’ counselInitiative Legal Group (“ILG”) did not have authority to representPlaintiffs and that the arbitration wasstayed pending the appeal in Iskanian. At that time, CLSalsoinsisted that the individual arbitration claims must be consolidated. By November, 2011, CLS had abandonedits argument, made only weeksearlier, that the Iskanian appealstayed the arbitrations. Instead, CLS staked out a third—contradictory—position. Filing a procedurally-defective Motion for Consolidation ofArbitrationsin the Iskanian court,* CLS now firmly contends that individual arbitrations ofemployee disputes would be inefficient and prohibitively expensive. Thearbitrations, CLS argues, should be consolidated by the Superior Court. CLS’s new position, however, finds no support in the Agreementthat CLSpreviously insisted must be enforced “according toits terms.”° By refusing to honorits own Agreementand the Orderit sought and obtained by motion, CLS proves thatit will adopt inconsistent, even contradictory, positionssolely to stymie Plaintiffs from vindicating their individual claims. Plaintiffs have now been waiting for overfive years to have their claims against CLSadjudicated, having had their claims thwarted by CLS less than two months before trial. CLS should not be permitted to adopt successive contradictory positions to deny Plaintiffs their due process. Thus, the Court should immediately rectify this gross injustice by ordering CLSto pay 4 A true andcorrect copy of the Motion for Consolidation of Arbitrations Pursuant to CCP 1281.3 and for Clarification of the Court’s Order of June 13, 2011 is attached to the Request for Judicial Notice (“RJN”) as Exhibit 4. This motion is procedurally defective for tworeasons:(a) the action in the Iskaniantrial court is stayed pending appeal, and (b) after dismissal of class claims, the Jskanian court is divested of personaljurisdiction over the former class members. > Yonically, CLS’s arguments in support ofconsolidation echothe rationale for class actions, arguedbytheplaintiffclass in /skanian — that individual arbitrations are impracticable, expensive and inefficient to conduct a multiplicity ofsuits. Page 2 MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION;OR,IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE LE GA L G R O U P A P C 1 8 0 0 C E N T E R Y P A R E BA ST . S E C O N D F L O O D O S A N G E L E S , C O L E R O R N D S S i l j a ? the requisite fees to AAA (along with all costs CLSis obligated to pay under the Agreement and AAA tules) to conduct separate arbitrations with each individual Plaintiff. In the altemative, the Court may prevent an unjust result by issuing a declaratory judgmentinvalidating or rescinding the Agreement on equitable or unenforceability grounds, thereby permitting Plaintiffs to proceedin court on a class-wide basis. Il. FACTS AND PROCEDURE Plaintiffs previously belongedto a certified class in Iskanian, which wasfiled on August4, 2006. In that action, plaintiff Arshavir Iskanian brought wage and hourclaimsonbehalfofhimself and a class ofsimilarly situated drivers currently or formerly employed by CLS,the largest provider of chauffeured limousineservices in California. (“Declaration ofRaul Perez (“Perez Decl.”), 2.) In early 2007, CLS movedfor an order compelling individual arbitration, based on the Agreement allegedly signed by Iskanian in 2004 (andall ofthe other unnamed class members at varioustimes). (Perez Decl., 43.) The Jskanian court granted the motion, which was immediately appealed.® (Perez Decl., f] 4-5.) While the appeal was pending, the California Supreme Court issued Gentry v. Superior Court, 42 Cal. 4th 443 (2007), which promulgated a fact-intensive test to determine whetherclass action waivers are enforceable. (Perez Decl., § 6.) The Court ofAppeal then reversed and remanded with instructions to “apply Gentry to the factual record.” (/skanian,Slip. op., at 4.) However, on remand, CLSproceeded tolitigate the matter as a class action. (Perez Decl., | 8.) On August 24, 2009, the Iskanian trial court granted theplaintiff's class certification motion,certifying five subclasses with Iskanian appointed as class representative for each subclass. (Perez Decl., ¥ 9.) Thereafter, the parties continuedto litigate on a class-wide basis. After four years oflitigation, with the August 6, 2011 trial date fast approaching, on May 16, 2011 CLSfiled a motion “‘for renewal”ofits prior motion seeking to compelarbitration. (Perez Decl., 44] 9-10.) In its Motion for Renewal, CLS invoked the U.S. Supreme Court’s recently issued AT&T Mobility LLC v. Concepcion, \31 S. Ct. 1740 (2011) (‘Concepcion’) to argue that the Federal ® Iskanian v. CLS Transportation Los Angeles, LLC, No. B198999 (Cal. Ct. App. 2d Dist., May 27, 2008) (order remanding trial court’s order compelling arbitration for application of the Gentry test). A true and correct copy of the slip opinion is attachedto the RJN as Exhibit 1. Page 3 MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLINGSPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE LE GA L G R O U P A P G [ s e d C E N T U R Y P A R N E A S T , S E C O N D F L O O K , L O S A N G E L E S , C A L T R O R N E S “ M l e ? m e B W N H 22 23 24 25 26 27 28 Arbitration Act (“FAA”) preempted the rule in Gentry, and insisted that arbitration agreements “must be enforced according to their terms”in all respects under the FAA. (Def.’s Mot. for Renewal, at 6:14-15, attached as Exhibit 2 to the RJN; see also Perez Decl., 411.) Specifically, CLS focused on the class and representative action waivers, arguing that both should be enforced. (/d. at 6:15-17.) On June 14, 2011, the trial court granted CLS’s motion and issued an order dismissing the class claims and compelling Iskanian to individual arbitration. (See Order Granting Motion for Renewal, attached as Exhibit 3 to the RJN.) Iskanian filed a timely notice ofappeal ofthis order.’ (Perez Decl., q 13.) Beginning in August, 2011, anumber of former Jskanian class members demandedindividual arbitration. (Perez Decl., | 14.) These former class members first filed with ADR, which was identified in paragraph 16(d) ofthe Agreement as a mutually acceptable arbitration provider. (Perez Decl., 15.) CLS, however, rejected the validity ofthese arbitration demands, claiming byletter that the Agreement“invokes the services ofthe American Arbitration Association and requires that the parties follow AAA’srules.” (Perez Decl., { 16; a true and correct copy ofthe September 19, 2011 letter from CLS to ADRis attached as Exhibit B.) CLS then advisedthat“ifthe purported Plaintiffs exist and seek to arbitrate, they will need to file with AAA and tender the appropriate fees.” (Exhibit B (emphasis added).) The 63 individual employees chose to avoid further delay and expense and agreed to arbitrate before CLS’s preferred arbitration organization, AAA. (Perez Decl., 4 17.) Each individual plaintiffthen promptly tendered the $175.00filing fee to AAA to begin separate arbitration proceedings. (/d.) Yet CLSagain failed to abide by its own Agreement, this time by refusing to payits share of the filing fees owed to AAA,theonly serviceit claims can administer the arbitration. CLS’s refusal to pay its filing fees to commence arbitration is a material breach ofits duties under the Agreement, which provides: Unless otherwise provided or permitted under applicable law, [CLS] shall pay the arbitrator’s fee and any other type of expense or costthat EMPLOYEEwould not be required to bear if he or she were free to bring the dispute or claim in court as well as any other expense orcost that is uniqueto arbitration. ” Notice of Appealfiled August 11, 2011, appellate no. B235138. Page 4 MEMORANDUMOFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLINGSPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C JR OD C E N T U R Y P A R K ¢ L L S E C O N D FE O G O S A N G E L E S , C A L T F O R SS 6 8 0 0 6 4 a a o H n N B D W N — _ S o 0 1] 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Arbitration Agreement, { 16(h) attached to the Perez Decl. as Exhibit A.) Under AAA rules, the employer must pay a $925.00 nonrefundable fee, along with a $300 hearing fee, and all expenses incurred by the arbitrator, among other fees. (AAA’s Employment Arbitration Rules and Mediation Procedures, J 48, attached to the RJN as Exhibit 5.) CLSresorts to a number ofcontradictory excuses to justify its refusal to pay the non- refundable fees for each individualarbitration. CLS initially suggested, without any evidence,that Plaintiffs’ attomeys did not represent them and also thatthe arbitrations were stayed pending appeal. (Perez Decl, { 18; a true and correct copy ofthe October 10, 2011 letter from CLS to AAA is attached as Exhibit C.) This was false, as ILG had obtained individual retainer agreements from each Plaintiff beginningin July 2011 to early September 2011 to represent these Plaintiffs. (Perez Decl., { 14.) However, quickly abandoningtheposition that the action was stayed pending appeal, CLSfiled a motion for consolidation ofthe arbitrations. (A true and correct copy ofthis motionis attached to the RJN as Exhibit 4; see also Perez Decl., 4 19.) The thrust ofCLS’s motion for consolidationis that individualarbitrations are too expensive andinefficient, and that CLS wants to avoid the possibility of inconsistent judgments. (See Def.’s Mot. for Consolidation, at 8:20-10:15.) CLS’s newly stated rationale departed from its prior position in compelling individual arbitration, when it argued that the Court must give effect to the parties’ expectations embodiedin the terms ofthe agreement. (Def.’s Mot. for Renewal, at 6:4-8.) After CLS repeatedly failed to tender arbitration fees, AAA finally determined not only thatit could not administer Plaintiffs’ individual arbitrations, but that it “must decline to administer any other employmentdisputes with [CLS].” (Perez Decl., 4 19; a true and correct copyofthe letter from AAA to CLS is attached hereto as Exhibit D.) Thus, CLS’s bad-faith tactics have renderedthe arbitration Agreement unenforceable as written andleave Plaintiffs without a forum to adjudicate their claims. This unjust result cannot be permitted. The Court should use its equitable powersto ensure that Plaintiffs will be able to properly adjudicate their individual claims. Wl. ARGUMENT A. The Court Has Jurisdiction to Order Specific Performance of the Agreement The Court has jurisdiction to hear and decide this issue. First, the Court has authority to issue Page 5 MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLINGSPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT I N I T I A T I V E L E G A L . G R O U P A P G 18 00 C E N T E R Y P A R K E A S T , S E C O N D F L O O R , 1. 08 A N G E L E S , C A L I F O R N E N 80 06 7 o l U l U N C O U M w U N O C D 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ordersin aid ofarbitration. Under paragraph 1 6(i) of the Arbitration Agreement, the Court is ; empowered to render anyordersin aid ofarbitration as “nothing in this Policy/Agreementprohibits either Party from seeking provisional remediesin court in aid ofarbitration including temporary restraining orders, preliminary injunctions and otherprovisional remedies.” This contractual authonty is supported by California statute, which grants a court authority to issue a preliminary injunction to furtherthe arbitration. CCP § 1281.8(a)(3).* Underthis provision, the court may issue injunctive relief pendingarbitration “if it is necessary to preserve the effectiveness ofarbitration.” Davenport v. Blue Cross, 52 Cal. App. 4th 435, 453 (1997). Second,a party may bring an equitable motion seeking specific performance ofan arbitration agreement. See Freeman v. State Farm Mut. Auo Ins, Co., 14 Cal. 3d 473, 479 (1975) (holdingthat motion to compel performanceofarbitration agreementis essentially an equitable motion for specific performance). Because CLS has already successfully compelledarbitration but is now refusing to comply with the trial court’s order or the terms ofthe Agreement, the Court may order CLS to perform its obligations under the Agreement. Third, the Court has authority rooted in case law to resolve a dispute regarding the appointmentofthe arbitrator or the arbitrator’s fees. Burgess v. Kaiser Found. Hosp., 16 Cal. App. 4th 1077, 1079 (1993). In Burgess, the plaintiffdisagreed with the reservation fee requested by the arbitrator, but instead ofpetitioning the court for a resolution on the fee dispute, plaintiffdid nothing for sixteen months. /d. at 1081. Finally, the arbitrator dismissed the action upon defendant’s request, a dismissalaffirmedbythetrial court. Jd. The Burgess court held that“[a]rbitration is intended to be more expeditious than litigation...fa]ccordingly,ifthere is any delay by an arbitrator, the appropriate remedyis nottolling ofthe five-year period, but rather a petition to the court for an appropriate order ® This California statutory provision does not run afoul of the FAA, which purportedly governs this Agreement under Paragraph 16(f). See Davenport, 52 Cal. App. 4th at 452 (holding “a court may grant provisional relief pending arbitration under the FAA ifthe party seeking the relief establishes the necessity of the injunction to preserve the status quo pending arbitration in order to avoid nullification of the arbitration process.”); see also Rosenthal v. Great Western Fin. Securities Corp., 14 Cal. 4th 394, 409 (1996) (holding that state rules apply in state court unless the application of such rules would defeat the purpose and objectives of the FAA). As the California rule here would facilitate rather than frustrate arbitration, there conflict with the FAA. Page 6 MEMORANDUMOFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLINGSPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT AC M L T P O R N D + 80 06 " 4 IN IT IA TI VE LE GA L. G R O U P A P C }K O0 C E N T U R Y P A R S E O T . S E C O N D FL O O K , L O S A N G E L o l U N U O l C U M O O N S G N expediting the arbitration proceeding.” Ja. By this motion, Plaintiffs seek exactly this “appropriate remedy”ofpetitioning the Court to expedite the arbitration proceeding. As in Burgess, the delay in this case stemmed from a payment dispute, only here the dilatory party is the defendant CLS, who refused to payits share ofthe fees for the very individualarbitrations it compelled. Indeed, even after each Plaintiff sent a demand to AAA along with the $175.00 per person payment, CLSstill refused to meet its contractual obligations, which provide that CLS mustpay the arbitrator’s fee and “any other expenseor cost unique to arbitration.” (Arb. Agmt., § 16(h).) CLS is thus required to pay the arbitration fees and can be ordered to do so by this Court. Based on the foregoing,ifthe Court finds that the Agreement remains enforceable, the Court should order CLS to comply with all ofits terms, including the payment of requisite fees, in order to give effect to the individual arbitrations. B. The Court Should Order CLSto Specifically Perform the Arbitration Agreement 1. The Court Should Enforce the Arbitration Agreements Ifthe Court finds that the Agreement remains enforceable, the Court should order CLS to comply with all the termsofthe Agreement, including the paymentoffees for individualarbitrations. A short summary ofCLS’s conductis instructive in illustrating the inequitable conductat issue. In the long-running Iskanian action, five subclasses were certified in 2009. However, after four years of litigation and less than two monthsbeforetrial, CLS renewed its motion to compelarbitration, arguing that the court must ‘ensure that private arbitration agreements are enforced accordingto their terms.” (Def.’s Mot. for Renewal, at 6:14-15, citing AT&TMobilityLLC v. Conception, 131 S.Ct 1740, 1748 (2011) (quoting Volt Information Sciences v. Board ofTrustees ofLeland StanfordJunior Univ, 489 U.S. 468, 478 (1989)). CLS highlighted language from the Agreement, including,“each of EMPLOYEE and COMPANY shall only submit their own individual claimsin arbitration and will not seek to representthe interests ofany other person.” (Def.’s Mot. for Renewal, at 2:17-19.) CLSeventually prevailed on its argument that Gentry was preempted by the FAA under Concepcion. Consequently, the Jskanian court dismissed the class claims with prejudice and ordered plaintiffto individual arbitration. (Order Granting Mot. for Renewal, at 2, attached to the RJN as Page 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION;OR, JN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT E C O N D ¥ L O O K , L O S A N G E L E S , C A L I F O R N I A 6 0 6 ? IN IT IA TI VE L E G A L G R O U P A P C uw < 4 x a + = 2 z > W w NW N 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 3.) While the Iskanian plaintiff appealed the ruling, certain former members ofthe decertified class decided to take CLSat its word and demandedindividualarbitration. However, faced with parties who actually seek to arbitrate individually, CLS becameevasive. First, CLS contended that ADR, despite being identified in CLS’s own form arbitration agreementas an acceptable provider of arbitration, could not administer the arbitration. (Perez Decl., | 16; Exhibit B.) When Plaintiffs acceded to CLS’s demands to conductarbitration with AAA, CLSagain refused to cooperate. (Perez Decl., J 18; Exhibit C.} CLS insteadtried to boxPlaintiffs in by adopting a new posture: that even though Plaintiffs are precluded from conducting class-widearbitration under CLS’s Agreement, Plaintiffs must nonetheless “consolidate” their arbitrations in spite the Agreement’s express mandate under paragraph 16(b) that parties shall “only submit their own individual claimsin arbitration.” (See Exhibit C.) In other words,after vigilantly arguingthat all disputes mustbe resolved through individualarbitrations to defeat the class action, now that some employeeshaveactually agreed to individualarbitrations, CLS opposesthat as well. Aside from being fundamentally unfair and evidencing bad faith, CLS’spositionis belied by the language in its own arbitration Agreement. Indeed, it was only by arguing that the Agreement must be enforced “according to its terms” that CLS was able to defeat class arbitration. However, no sooner had CLSobtainedits desired forum didit shift to a second, contradictory posture. Where individualarbitration was once the embodimentofthe parties’ expectations ~ the only forum which CLS and employees purportedly agreed to avail themselves — the very same forum is now inefficient, prohibitively expensive, and cannot govern the parties’ dispute. (See Mot. to Consolidate Arbitrations, at 8:20-10:15.) These two positions cannot be reconciled. By now,it is clear that CLS’s only consistent position is to do whateverit takes to deprive Plaintiffs ofa forum to adequately adjudicate their claims. To redress the effects ofthis bad faith conduct, Court should order CLSto pay fees to AAA for separate arbitrations with each individual Plaintiff. 2. Plaintiffs Have Also Satisfied Other Injunctive Relief Factors Meetingtraditional requirements for injunctive relief is not necessary because the Court has Pape 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OF INDIVIDUALARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C (8 00 C E N T U R Y P A R E A S T . S E C O N D F L O O K . L O S A N G E L ES , C A C I S O R S L A S 0 6 4 independentstatutory authority to issue an injunctive orderto effectuate arbitration. Nonetheless, Plaintiffs can alternatively obtain injunctivereliefon statutory grounds. Under CodeofCiv. Proc. § 526(a)(3), an injunction mayissueif“a party to the action is doing,or threatens,or is about to do...somein actin violation ofthe rights ofanotherparty to the action.. and tending to render the Judgmentineffectual.” In addition, an injunction may issue where legal remedy is inadequate, such as when “compensation would not afford adequaterelief.” Code ofCiv. Proc. § 526(a)(4). Inadequate legal remedy will be found “whereit would be extremely difficult to ascertain the amount of compensation which would afford adequate legal relief. Code Civ. Proc. § 526(a)(5). These factors are satisfied here. Plaintiffs are left with no way ofobtaining monetary damages because no forum is available to adjudicate their claims to make such an award. See Dept. ofFish & Gamev. Anderson-Cottonwood Irrig. Dist., 8 Cal. App. 4th 1554, 1564 (1992) (holding that an injunction should be granted where monetary damagesare prohibited by law). CLSis interfering with its employees’ rights by preventing individual adjudication oftheir claims in any forum. Thisis exactly the kind ofviolation ofrights — in this case, Plaintiffs’ due process rights — that would render Judgmentineffectual. In these unusual circumstances, Plaintiffs could not even “renderjudgment” against CLS,since CLS’s misconduct has stymied Plaintiffs from being able to resolve the dispute altogether. Indeed,ifPlaintiffs were to file a separate action to pursue their wage and hourclass action in court, CLS would likely invoke collateral estoppel based on its Motion for Renewal ofPrior Motion to CompelArbitration to compelthis action to arbitration — which CLS would thenrefuse to fund. Theendresult is that Plaintiffs would be left in the sameposition — without a forum to resolvetheir claims. An injunction is both proper and necessary because Plaintiffs cannot obtain compensatory damages. The monetary value ofCLS breachingits own Agreementcannotbeascertained becauseit is purely a forum-selection agreement. And a breach ofthe agreementwill yield no liquidated damages or compensatory damagesthat could be readily calculated. With no adequate legal remedy, the Court is empowered to grant injunctivereliefby ordering CLSto pay individualarbitration fees to prevent gross injustice. Page 9 MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OFINDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT ___ IN IT IA TI VE L E G A L G R O U P AP C. 7 1 8 0 0 C E N T U R Y P A R K F A N T , S E C O N D F L O O N L O S A N G E L E S , C A L I F O R N L A 0 0 6 4 o l U l U l N U C O l U l U M m O O U M N S O N 25 26 27 28 3. The DoctrineofJudicial Estoppel Bars CLS From Compelling Individual Arbitration of Employees and Subsequently Opposing Same Judicial estoppel “precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position.” Aguilar v. Lerner, 32 Cal. 4th 974, 986 (2004). This doctrine applies when “(1) the same party has taken two positions; (2) the positions weretaken in judicial or quasi-judicial administrative proceedings; (3) the party was successfulin asserting thefirst position (i.e., the tribunal adopted theposition or acceptedit as true); (4) the twopositionsare totally inconsistent; and (5) thefirst position was not takenas a result of ignorance,fraud, or mistake.” Jackson v. County ofLos Angeles, 60 Cal. App. 4th 171, 183 (1997). All ofthese elements are met here. After CLS prevailed in court onits position that only individualarbitrations with employees are permitted under the Agreement,it took the opposite position once certain employees decided to proceed in individualarbitration. Because CLS has taken these calculated positions, which wereset forth in affirmative motion papersafter presumed consultation with its counsel, it cannot be relieved from estoppel on the groundsofignorance, fraud or mistake. CLS’sstated grounds for refusing to pay for individualarbitrations are invalid under the doctrine ofjudicial estoppel. Furthermore, CLS should bejudicially estopped from taking any position that impairs a Plaintifffrom resolving his or her dispute through individual arbitration that CLSitselfhad previously compelled. Cc. In the Alternative, the Court Should Rescind or Set Aside the Agreement Because It Cannot Be Enforced Altematively, the Court may revoke CLS’s Arbitration agreement if such grounds exist. See Cal. Code Civ. Proc. § 1281.2(b). Three groundsexistto rescind orset aside the Apreement. First, the agreementshould besetaside or rescinded due to impracticability or impossibility ofperformance due to factors outside ofPlaintiffs’ control. Second, CLS should be equitably estopped from benefiting from asserting positions that have caused injury to Plaintiffs. Finally, because CLS has clearly breached the material terms ofthe Agreementbyrefusing to pay the AAA as obligated, the Agreement maybe rescinded. Page 10 MEMORANDUM OFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OFINDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT I N I T I A T I V E L E G A L . . R O U P A P C “ H e ? + S E C O N D F L O O M . L O S A N G E L E S , C A L I B O R I D O C E N T U R Y P A R K . a o n N B O A H S S Q o ~~ . 1] 12 14 15 16 17 18 19 20 2] 22 23 24 25 26 27 28 1. The Agreement Cannot Be Enforced Due to Impracticability. Under Califomia law, impracticability related to the difficulty and expenseofperformance may provide grounds to excuse performance. Kennedy v. Reece, 225 Cal. App. 2d 717, 724-25 (1964). As Kennedy explained, the impracticability defenseis an “‘enlargementofthe meaning of ‘impossibility’ as a defense.” Jad. at 725. This doctrine may be invoked against contractual enforcement, “{w]here,after a contract is made,a party’s performance is made impracticable without his fault by the occurrence ofan event the non-occurrence ofwhich was basic assumption on which the contract was made.” Maudlin v. Pacific Decision Sciences Corp., 137 Cal. App. 4th 1001, 1017 (2006) (quoting Rest.2d Contracts, § 261). Furthermore, under the FAA Section 2, general defensesto the enforceability ofcontracts are preserved, and the Court may hold an arbitration agreement unenforceable undera valid contractual enforcement defense. 9 U.S.C. § 2. See also Doctor’s Assocs. v. Casarotto, 517 U.S. 681, 687 (1996) (“[G]enerally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening § 2”). CLS’s Agreement requires AAA to administer the arbitration, but, due to CLS’s chicanery, AAA now refuses to work with CLS. Therefore, the Agreement cannotbe enforced as it is written. Throughno fault ofPlaintiffs, the Agreement now cannotbe performed by either party. When the Iskanian court granted CLS’s motion to compelindividual arbitration, it did so after CLS highlighted the principle purpose of the FAA, whichis to ‘ensurethat private arbitration agreements are enforced according to their terms.” (See Def. Mot. for Renewal, at 6:14-15, quoting Conception, 131 S. Ct at 1748.) However, CLS’s exalted, “most important” idea — that the termsofthe Agreement are the only ones that give effect to the parties’ expectations ~ must be consistently applied. If the class and representative action waivers contained in the Agreementare to be enforced by Court, then so too should all ofthe other terms. One such term requiresthat only the AAA may administerthe arbitration. Under paragraph 16(a) ofthe Agreement, the arbitration shall be governed bythe “then-currentdispute resolution rules and procedures of the American Arbitration Association.” CLSreiterated this position in its letter declining to arbitrate with ADR Services, stating that the “the arbitration agreementat issue invokes Page 1] MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUALARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P G ts a0 C E N T E R Y P A R W E A S T , S E C O N D FT O O R . Y O S A N G E E F R S , C A L T F O R S N E S [6 00 7 the services ofthe American Arbitration Agreement (“AAA”), and requires that the parties follow AAA’s rules.” (See Exhibit B.) Under the AAArules, “when theparties agree to arbitrate under these rules .. . they thereby authorize the AAA to administerthe arbitration.” (AAA Emp.Arb. Rules and Med. Proc., Rule 3.) CLS’s position was reinforced in Maggio v. Windward Capital Management Co., 80 Cal. App. 4th 1210, 1213 (2000), which held that only AAA can administer the arbitration whenan agreementsets forth that the arbitration is governed “according to AAA rules.” Thus, by the narrowinterpretation ofthe Agreementthat CLShas urged,the only service that may administer the arbitration is AAA. However, due to CLS’s recalcitrance, AAA will no longer administer any arbitrations to which CLSisa party, going so far as to demand that CLS “remove the AAA namefromits arbitration clauses so that there is no confusion to the company’s employees regarding our decision.” (Perez Decl., 4 19; Exhibit D.) This developmentrenders a material condition ofthe Agreement impracticable — ifnot impossible ~ to perform. Theparties currently have no meansto submittheir arbitral claims to the appropriate administrative body, since the sole body authorized to do so, AAA, now refuses to accept their submissionsafter it unequivocally rejected CLS as a customer. Because the parties did not bargain for any other body to administerthe arbitration, the Court mayset aside the Agreementunderthe general contract defense of impracticability or impossibility. Once the Arbitration Agreementis set aside, the parties may again form a class for the purposes ofproceeding as a class action. | 2. The Arbitration Agreement Must Be Set Aside Due to Equitable Estoppel Equitable estoppel precludesa party from asserting rights “he otherwise would have had against another’ when his own conductrenders assertion ofthose rights contrary to equity. Metalclad Corp. v. Ventana Environmental Organizational Partnership, 109 Cal. App. 4th 1705, 1713 (2003). The elements ofequitable estoppelare the following: (1) The party to be estopped must know the facts; (2) he mustintendthat his conductshall be acted upon, or must so actthat the party asserting the estoppel had the right to believe that it was so intended; (3) the party asserting the estoppel must be ignorantofthe truestate of facts; and, (4) he must rely upon the conductto his injury.” Nicolopulosv. Super. Ct., 106 Cal. App. 4th 304, 311 (2003) (citation omitted). Page 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C [S 80 C E N T U R Y P S R E A S T , S E C O N D F L O G K , L O S A N G E L E S , C A L I F O R N E Y 0 0 4 > “S s H D W N 10 1] 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This doctrineis “based on the theory that a party whobyhis declarations or conduct misleads anotherto his prejudice should be estopped from obtaining the benefits of his misconduct.” Cotta v. City and County ofSan Francisco, 157 Cal. App. 4th 1550, 1567 (2007). In the arbitration context, equitable estoppel has applied where “a party who has not signed a contract containing an arbitration clause may nonetheless be compelled to arbitrate when he seeks enforcement ofother provisions ofthe same contractthat benefit him.” Metalclad, 109 Cal. App. 4th at 1713. The principles ofequitable estoppel should work in the converse as well, to prevent enforcementofan arbitration agreement by a party which has selectively sought to enforceits provisions. Three separate reasons exist for invalidating the Agreementunderthis doctrine. First, equitable estoppel is invoked where a party seeks to benefit by taking contradictory positionsin badfaith. This is especially poignant as CLS deprived Plaintiffs oftheir class claims by arguingthat the termsofthe agreement mustbestrictly enforced, yet now seeksrelieffrom strict enforcementofcontract on the rationale ofjudicial efficiency and costs-savings, which echo policy arguments in support ofclass actions. Under Code ofCivil Procedure 382, when “the question is one ofcommonorgeneralinterest, ofmanypersonis, or whenthe parties are numerous,andit is impracticable to bring them all before the court, one or more may sueor defendfor the benefit ofall.” One reason for judicial preference of class treatmentit to avoid the high costs and inefficiencies associated with a multiplicity ofsuits: Absent class treatment, each individual plaintiff would present in separate, duplicative proceedings the same or essentially the same arguments and evidence, including expert testimony. The result would be a multiplicity of trials conducted at enormous expenseto both the judicial system and thelitigants. Sav-On Drug Stores, Inc. v. Super. Ct., 34 Cal. 4th 319, 340 (2004). Although CLSvigilantly attacked class treatmentofPlaintiffs, it proffers exactly the same rationale to support consolidation. CLSfirst argues that consolidation would “avoid repetitive, separate arbitrations dealing with commonissues oflaw and factarising from the samesetoffacts.” (Def.’s Mot. for Consolidation, at 9:7-9.) Then, CLS contends that consolidation would “avoid unnecessary costs and delays” associated with individualarbitration. (/d. at 9:11-13.) Consolidation, according to CLS,will also “avoid repetitive and overlapping discovery”that would result with Page 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OFINDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT I N I T I A J I V E L E G A L G R O U P A P C H G F +, S E C O N D F L O O R . O3 8 A N G E L E S , C A L I F O R {8 00 C E N T U M Y P A R R > o c l U l U l N C O U M U U M G N U G N 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 individualarbitrations. (Id. at 9:25-26.) By extolling the virtues ofclass treatment when convenient, CLSinadvertently concedesthat allowing the claims to proceed as class action is an appropriate and fair remedyin light ofCLS’s continuing gamesmanship. Indeed, ifCLS is willing to engage in bad faith conductto furtherthe interests ofefficiency and cost-effectiveness, it should not complainifthe Court invalidates the arbitration agreementso that Plaintiffs’ claims are resolved moreefficiently and less expensively — as a class action. Furthermore, when CLS moved to compelindividual arbitration in Jskanian, it had no intention ofactually arbitrating the class’s employment claimsindividually, as its subsequent conduct confirmed. Instead, CLS planned to default on the arbitrator’s fees in order to deprive Plaintiffs ofthe arbitral forum it demanded (and which was contractually provided). By contrast, Plaintiffs simply took CLSat its word and proceededto individualarbitration when CLSinsisted that the Agreement provides for onty this method to resolve their dispute. CLSclearly misrepresented jts intentions, and by doing so, prevented Plaintiffs from asserting their rights. Equitable estoppel should therefore apply to prevent CLS from unjustly reaping benefits from its misconduct. Separately, CLS’s subsequent conduct confirmsthatthe fees provision, as stated in the Agreement,is a sham designed solely to prevent the Agreement from being invalidated on groundsof unconscionability. In California, an employee whosignsan arbitration agreement as a condition of employmentcannotbe asked to “bear any type ofexpense that the employee would not be required to bear if he or she were free to bring the action in court.” Armendariz v. Foundation Health Psychcare Serv., Inc., 24 Cal. 4th 83, 110-111 (2000); see also Gutierrez v. Autowest, Inc., 114 Cal. App. 4th 77, 90 (2003) (invalidating an agreementas unconscionable whena provision required a consumerto pay the AAA initiation fee to arbitrate in an adhesioncontract drafted by defendant). CLS’s inclusion of such a term is an attempt to circumventjudicial scrutiny ofits unconscionable arbitration system. CLS presents its Agreementas obligatingit, the employer, to pay the arbitrator’s fee — thus ensuringthat the Agreementwil} not be held unconscionable on that basis. Yet whenthe arbitrator’s fee actually comes due, CLSrefuses to pay it. Therefore, in practice, the fee provision is ineffective since CLS will not complywith its terms. Instead, CLS choosesto pass the costs ofarbitration to its employees, who are forced by CLS’s breachinto the expensive proposition offiling an action, and then a motion, in order Page 14 MEMORANDUMOFPOINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOFINDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT IN IT IA TI VE L E G A L G R O U P A P C 1 8 0 0 C E N P E I C Y B A R R E AS L. S E C O N D F L O G R . L O S A N G E L E S , C A L E F O N N E S H I G ? c o O U O o S N N H to enforce the fee terms. The issue now before the Court is simply what to do with a party that now refuses to participate in the individualarbitrationsthatit itself compelled. Becauseit is hard to imagine a more clear-cut case ofbad faith conduct than CLS’shere, the Court should order an equitable remedy — either to compel CLSto pay arbitration fees and participate in individual arbitration with each individualPlaintiff, or to set aside the Agreement under equitable estoppel or the impossibility or impracticability defenseso that Plaintiffs may proceedto litigate their class claims in Court. 3. Rescission Is An Appropriate Remedy Under the Instant Facts The court mayorder rescission as a provisional remedy whenlegal remedies would not provide appropriate relief. Lenard v. Edmonds, 151 Cal. App. 2d 764, 769 (1957) (affirmingthat rescission mayissue as a provisional remedy on a breach ofcontract). As established above, the traditional factors for injunctive relief are satisfied, and CLShas clearly breached the Agreementby failing to tender fees for individualarbitration as required. Therefore, the Court mayrescind the Agreementso that the Parties maylitigate their claims in court. 1V. CONCLUSION Based onthe foregoing, the Court should order CLSto pay the arbitration fees and takeall necessary action to effectuate individualarbitrations with Plaintiffs. In the alternative, the Court should set aside the Agreement because CLSis equitably estopped from enforcing the agreement, or because the terms ofthe Agreement cannot be performed. Dated: November 18, 2011 Respectfully submitted, Initiative Legal Group APC By: (Fs7fan Raul Perez. ~ Melissa Grant Suzy E. Lee Attomeysfor Plaintiffs Page 15 MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLINGSPECIFIC PERFORMANCE OFINDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT u o e o N N H N O H F P W Y Y O = ie } t o ie ) N N O N o N O N O t r — _ — — _ — — _ — _ — _ — o o N N O H S F W N K Y OF S O o P F A D H D N H f F W Y N H | O O Raul Perez (SBN 174687) RPerez@lnitiativeLegal.com Melissa Grant (SBN 205633) MGrant@InitiativeLegal.com Suzy E. Lee (SBN 271120) SuzyLee@InitiativeLegal.com Initiative Legal Group APC 1800 Century Park East, 2nd Floor Los Angeles, California 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 Attomeys for Plaintiffs CONFORMED COPY QF ORIGINAL FILED Los Angeles Superior Court Conformed Cony John A. Ciarke utive Officer/Clerk By , Deputy SHA ESLEY SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES GREG KEMPLER, ADRIEN WARREN, ANANTRAY SANATHARA, ANGELO GARCIA, ARTHUR POST, AVAAVAU TOAILOA, BELINDA WASHINGTON, BENNETT SLOAN, BRUCE GOLD, CARL MUELLER, CARL SWARTZ, CASSANDRA LINDSEY, CLEOPHUS COLLINS, DANIEL ARAYA, DANIEL ROGERS MILLINGTON, JR., DAROLD CALDWELL, DAVID BARANCO, DAVID MONTOYA, DAWN BINGHAM, EDWARD SMITH, EDWIN GARCIA, ELUJHA NORTON, FLAVIO SILVA, FRANK G. DUBUY, GERALD GRIFFIN, GLEN ALSTON, IGOR KROO, JAMESC. DENISON, JAMES RICHMOND, JAMESSTERLING, JERRY BOYD, JIRO FUMOTO, JOHNNIE EVANS, JONATHON SCOTT, JULIUS FUNES, KAREN BAILEY, KARIM SHARIF, KENNY CHENG, KUNG MING CHANG, LAMONT CRAWFORD, LEROY CLARK, LUIS EARNSHAW, MARCIAL SAZO, MARQUEL ROSE, MASOOD SHAFII, MATTHEW LOATMAN, MIGUEL DE LA MORA, MYRON ROGAN, NEIL BEN YAIR, PATER PAULL, PATRICK COOLEY, RAFAEL CANDELARIA, RAUL FUENTES, REGINALD COLWELL, ROBERT OLMEDO, ROGER PERRY, SCOTT SULLIVAN, STEVE MAYNARD, SUSAN canXo, BL it 1349 | DECLARATION OF RAUL PEREZ IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT {Filed concurrently with the Notice ofMotion and Motion for Order Compelling Specific Performance ofIndividual Arbitration; or, in the Alternative, Setting Aside the Arbitration Agreement; Memorandum ofPoints and Authorities in Support Thereof; the Request for Judicial Notice; and [Proposed] Order] Date: 2 | {0 l (\ Time: 3:30 Am Place: D G2 Complaint Filed: DECLARATION OF RAUL PEREZ IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT o O S O S A H D H A F F W Y P NH N N O H N K N N O K N P O R N N O m w m m e e o n N W N O H f f W Y N Y S Y G F O O Co O D T D H F P W D H Y S | STELLMAN, THOMAS MARTIN, WAYNE IKNER, WILLIAM BANKER, AND WILLIAM PINKERTON, Plaintiffs, vs. CLS TRANSPORTATION LOS ANGELES LLC, a Delaware corporation; and DOES1 through 10, inclusive, Defendants. DECLARATION OF RAUL PEREZ IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OFINDIVIDUAL ARBITRATION;OR,IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT S o e o N D H W F& F W Y N H = N y NY O N Y N Y N Y N Y N Y R N D N w o m e e e a o N D D W S F W N K F S O O H NH N O N B R H D Y D H S O D DECLARATION OF RAUL PEREZ I, Raul Perez, declare: I. 1 am an attorney admitted to the Bar ofthe State of California. | am an attomeyat Initiative Legal Group APC (ILG), counselof record for the above named Plaintiffs (“Plaintiffs”) in this action. I make this declaration in support of Plaintiffs’ Motion for Order Compelling Specific Performance ofIndividual Arbitration; or, in the Alternative, Setting Aside the Arbitration Agreement. Unless the context indicates otherwise, ] have personal knowledge ofthe following facts, and if called as a witness, I could and would testify competently to them. 2. On August4, 2006, PlaintiffArshavir Iskanian (“Iskanian”) brought wage and hour claims against CLS Transportation (“CLS”), on behalfof himselfand a class ofcurrently and formerly employed CLS limousinedrivers. On information and belief, CLSis the largest provider of chauffeured limousine services in California. 3. Onor about February 9, 2007, Defendants movedfor an order compelling individual arbitration based on the form Proprietary Information and Arbitration Policy/Agreement(“Agreement”) signed by Iskanian and putative class members as a condition of their employment A true and correct copy ofthe Agreementis attached hereto as Exhibit A. On information and belief, not all Plaintiffs signed the Agreement, but paragraph 17 of the Agreement States that the terms of the Agreementare binding on all employeesirrespective ofsigning. 4. On or about March 13, 2007, the Iskanian Court granted Defendant’s motionfor an order compelling individual arbitration. 5. Onor about May 11, 2007, Plaintiff immediately appealed the Iskanian Court’s decision in the California Court of Appeals, Second Appellate District, Case No. B198999. 6. While the appeal was pending, the California Supreme Court issued Gentry v. Superior Court, 42 Cal. 4th 443 (2007), which promulgateda fact-intensivetest to determine whethera class action waiver is enforceable. 7. On or about May27, 2008, the Court of Appeals reversed and remandedthe order compelling arbitration with specific instructions for the trial court to apply the new Gentry test to Page| DECLARATION OF RAULPEREZ IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT bw nt , O o S F N Y D N A H F P W D B P w m N H N O L N D O K N K N D R R w m e o o N Y N D U N F& F W N Y K F C O C O O e H N K H H F F F W w N H &— - & the record.(A true and correct copy ofthe Slip Opinion is attached to the concurrently filed Request for Judicial Notice (“RIN”) as Exhibit 1.) 8. On remand, CLS, apparently conceding that the Gentry factors would besatisfied, decided to proceedto litigate the matter in state court. 9. On or about August 24, 2009, the Jskanian trial court granted Plaintiff's contested class action motion, certifying five subclasses with Iskanian appointed as class representative for each subclass. 10.‘ The parties continued to litigate on a classwide basis, with a trial date set for August 6, 2011. 11. On May16, 2011, less than sixty days beforetrial, CLS filed a Motion for Renewal of Its Prior Motion for Order Compelling Arbitration. (A true and correct copy of this Motion is attached to the RJN as Exhibit 2.) In the Motion for Renewal, CLS invoked the U.S. Supreme Court’s then-issued AT&TMobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) to argue that Gentry has been preempted. CLSalso insisted in this motion that agreements “must be enforced according to their terms” under the Federal Arbitration Act. 12. On or about June 14, 2011, the Court granted Defendant’s motion and issued an order dismissing class claims and compelling Iskanian to individual arbitration. 13. Onor about August 11, 2011, Iskanian filed a notice of appeal based on thetrial court’s order compelling individual arbitration. 14, Beginning August 2011, former Iskanian class members Greg Kempler, Adrien Warren, Anantray Sanathara, Angelo Garcia, Arthur Post, Avaavau Toailoa, Belinda Washington, Bennett Sloan, Bruce Gold, Carl Mueller, Carl Swartz, Cassandra Lindsey, Cleophus Collins, Daniel Araya, Daniel Rogers Millington, Jr., Darold Caldwell, David Baranco, David Montoya, Dawn Bingham, Edward Smith, Edwin Garcia, Elijha Norton, Flavio Silva, Frank G. Dubuy, Gerald Griffin, Glen Alston, Igor Kroo, James C. Denison, James Richmond, JamesSterling, Jerry Boyd, Jiro Fumoto, Johnnie Evans, Jonathon Scott, Julius Funes, Karen Bailey, Karim Sharif, Kenny Cheng, Kung Ming Chang, Lamont Crawford, Leroy Clark, Luis Earnshaw, Marcial Sazo, Page 2 DECLARATION OF RAUL PEREZ IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION;OR,IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT O o O o H N NW N O W P W P O & R O N H N O B R D Y Y O D Y R O R w m e e e e e e oO o N Y NH N O W F F W w N H - & D F O O f H D I H D N H B P W N Y K & C O Marquel Rose, Masood Shafii, Matthew Loatman, Miguel De La Mora, Myron Rogan,Neil Ben Yair, Pater Paull, Patrick Cooley, Rafael Candelaria, Raul Fuentes, Reginald Colwell, Robert Olmedo,RogerPerry, Scott Sullivan, Steve Maynard, Susan Stellman, Thomas Martin, Wayne Ikner, William Banker, and William Pinkertonretained [LG to representthem in their efforts. Retainer agreements were signed beginning in July 2011 to early September 2011. Each Plaintiff soughtto resolvehis or her dispute through individualarbitration with CLS. 15. Beginning in August, 2011, each Plaintiff filed a demand for arbitration with ADR Services, Inc., which was named in the Agreement as a mutually accepted provider. 16. In a letter to ADR Services, Inc. dated September 19, 2011, CLS’s counsel Yessenia Gallegosrejected the validity of Plaintiffs’ arbitration demands, maintainingthat the American Arbitration Association (“AAA”) was the sole arbitrator under the Agreement. A true and correctofthe September 19, 2011 Letter from Gallegos to Terry Shea, Arbitration Coordinator for ADR Services, Inc. is attached hereto as Exhibit B. 17. Beginning in September, 2011, and to avoid further delay and expense, each Plaintifftendered a $175.00 filing fee and demandedseparate arbitration proceedings with AAA. 18. In a letter to AAA dated October 10, 2011, CLS’s counsel confirmed that CLS will not pay the nonrefundable fee of $52,275 to AAA that it was obligated to pay under both its own Agreementand the AAArules, | which cal] for the employer to pay a $925 refundablefee per arbitration. A true andcorrectcopy ofthis letter from Gallegos to Adam Shoneck,Intake Specialist for AAA is attached as Exhibit C. Instead, in this letter, CLS offered numerous reasons for its refusal to pay, including “claimants are part of a class action that is currently on appeal” and “we have notreceived anything authoritative confirming that claimants have optedout ofthe class.” CLS then argued that the arbitrations should be consolidated. 19. On October 20, 2011, AAA senta letter to Plaintiffs’ counsel and CLS counsel stating unequivocally that, because CLS “has not complied with [AAA’s] requestto pay the requisite administrative fees in accordance with the employer-promulgatedplan fee schedule, we ' A true and correct copy of the current AAArulesis attached to the Request for Judicial Notice as Exhibit 5. Page 3 DECLARATION OF RAUL PEREZ IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER COMPELLINGSPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT — O o 6 N N NH N N W & W D W H N O D N D R P O L O H P K R D N N w w e e l e o N ON O A B P B W N Y YF P O O C e H N D H FS F Ww W N H K S O D mustdecline to administer any other employmentdisputes involving this company.” AAA further added that CLS “remove the AAA namefromits arbitration clauses so that there is no confusion to the company’s employees regarding our decision.” A true and correct copy ofthe October 20, 2011 letter from Adam Shoneck,Intake Specialist for AAA, to Raul Perez and CLS’s counsel David Faustman is attached hereto as Exhibit D. 20. Although CLSalleged that the action is stayed in the trial court pending the appeal, Defendantfiled a motion for consolidation of arbitrations on October 27, 2011. In this motion, CLS arguesthat individual arbitrations are too expensive and inefficient and consolidation is neededto avoid the possibility of inconsistent judgments. (This motion is attached to the RJN as Exhibit 4.) 21. Plaintiffs are left without a forum to individually resolve their claims, which necessitate court intervention. | declare under penalty of perjury underthe laws of the State of California and the United States of America that the foregoing is true and correct. Executedthis 18" day ofNovember, x. wT 2011, at Los Angeles, California. Raul Perez Page 4 DECLARATION OF RAUL PEREZ IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT EXHIBIT A PROPRIETARY INFORMATION AND ARBITRATION POLICY/AGREEMENT This Proprietary Information and Arbitration Policy/Agreement (‘‘Policy/Apgreement”) is entered into by and between ARSHAVIR ISKANIAN (hereinafter referred to as “EMPLOYEE”), on the one hand, and CLS WORLDWIDE SERVICES, LLC (hereinafter, together with parent, subsidiary and affiliated corporations and entities, and their successors and assigns, referred to as “COMPANY”), on the other hand. In consideration of the mutual representations, warranties, covenants and agreements set forth below, and for other good and valuable consideration, including EMPLOYEE'S employment and/or continued employment and for other consideration, the receipt and sufficiency of which is hereby acknowledged, EMPLOYEEand COMPANY agreeas follows: 1. PROPRIETARY INFORMATON. - 8 EMPLOYEEunderstands that, by virtue of EMPLOYEE’S employment with COMPANY, EMPLOYEE will acquire and be exposed to Proprietary Information of COMPANY.“Proprietary Information”includes all ideas, information and materials, tangible or intangible, not generally known to the public, relating in any manner to the business of COMPANY,its products and services (including all trade secrets), its personnel (includingits officers, directors, employees, and contractors), its clients, vendors and suppliers and all others with whom it does business that EMPLOYEE leams or acquires during EMPLOYEE’S employment with COMPANY. Proprietary Information includes, butis not limited to, manuals, documents, computer programs and software used by COMPANY,users manuals, compilations of technical, financial, legal or other data, salary information, client or prospective clientlists, names of suppliers or vendors, client, supplier or vendor contact information, customer contact information, business referral sources, specifications, designs, devices, inventions, processes, business or marketing plans or strategies, pricing information,information regarding theidentity of COMPANY'S designs, mock-ups, prototypes, and works in progress, all other research and development information, forecasts, financial information, and all other technical or business information. Proprietary Information does not include basic information that is generally known and used within the limousine industry. b. EMPLOYEE agrees to hold in trust and confidence all Proprietary Snformation during and after the period of EMPLOYEE’S employment with COMPANY. EMPLOYEEshall not disclose any Propnetary Information to anyone outside COMPANY without the written approval of an authorized officer of COMPANY or use any Propmietary Information for any purpose other than for the benefit of COMPANY as required by EMPLOYEE’S authorized duties for COMPANY. At all times during EMPLOYEE'S employment with COMPANY, EMPLOYEEshalt comply with all of COMPANY'Spolicies. procedures, regulations or directives relating to the protection and confidentiality of Proprietary Information. Upon termination of EMPLOYEE’S employment with COMPANY, fa) EMPLOYEEshal! not use Proprietary Information, or disclose Proprietary Information to anyone, for any purpose, unless expressly requested to do so in writing by an authorized officer of COMPANY, (6) EMPLOYEEshall not retain or take with EMPLOYEE any Propmetary information in a Tangible Form (defined below), and (c) EMPLOYEEshall immediately deliver to COMPANY any Proprietary Information in a Tangible Form that EMPLOYEE may then or 1 of 9 thereafter hold or control, as well as all other property, equipment, documents or things that EMPLOYEEwas issued or otherwise received or obtained during EMPLOYEE’S employment with COMPANY. ‘Tangible Form” includes ideas, information or materials in written or graphic form, on a computer disc or other medium,or otherwise stored in or available through electronic, magnetic, videotape or other form. 2. NON-SOLICITATION OF CUSTOMERS/CLIENTS. EMPLOYEE acknowledges that, because of the nature of EMPLOYEE’S work for COMPANY, EMPLOYEE’Ssolicitation or serving of certain customers or clients would necessarily involve the unauthorized use or disclosure of Proprietary Information, and specifically trade secret information, as well as the proprietary relationships and goodwill of COMPANY. Accordingly, for one (I) year following the termination of EMPLOYEE’S employment with COMPANY for any reason, EMPLOYEEshallnot, directly or indirectly, solicit, induce, or attemptto solicit or induce, any person or entity then knownto be a customer or client ofCOMPANY (a “Restricted Customer/Client”), to terminate his, her or its relationship with COMPANY for any purpose, including the purpose of associating with or becoming a customer or client, whether or not exclusive, of EMPLOYEE or any entity of which EMPLOYEE is or becomes an officer, director, member, agent, employee or consultant, or otherwise solicit, induce, or attempt to . solicit or induce, any Restricted Customer/Client to terminate his, her or its relationship with COMPANYfor any other purpose or no purpose; provided, however, this Section 2 seeks to protect COMPANY’S trade secrets and/or to prohibit EMPLOYEE from improperly disclosing or using Proprietary Information. Accordingly, if, during EMPLOYEE’S employment, EMPLOYEE never Ieamed nor was exposed to Proprietary Information regarding the identification of such customers/clients or customer/client contact information, pricing information, business development information, sales and marketing plan information, financial information or other Proprietary Information, EMPLOYEEshall not be restrained from such - solicitation or attempted solicitation but EMPLOYEEshall not use any Proprietary Information during or in connection with any such solicitation, nor shall EMPLOYEEinterfere or attempt to interfere with COMPANY'S contractual or prospective economic retationships with any customer or client through unlawful or improper means. 3. NON-SOLICITATION OF PERSONNEL. Dunng EMPLOYEE’S employment with COMPANY andfor one (1) year thereafter, EMPLOYEEshallnot, directly or indirectly, solicit, induce, or attemptto solicit or induce, any person known to EMPLOYEEto be an employee of COMPANY (each such person, a “Company Person”), to terminate his or her employment or other relationship with COMPANY for the purpose of associating with (a) any entity of which EMPLOYEEis or becomes an officer, director, member, partner, principal, agent, employee or consultant, or (b) any competitor of COMPANY,or otherwise encourage any CompanyPerson to terminate his or her employmentor other relationship with COMPANY for any other purpose or no purpose. 4. COMPETING ACTIVITIES. To protect COMPANY'S Proprietary Information, during EMPLOYEE’S employment with COMPANY, EMPLOYEE shall not engage in any activity that is or may be competitive with COMPANY in the limousine industry or otherwise in any state in the United States, where COMPANY engages in business, whether or not for compensation including, but not limited to, providing services or selling products 2 of 9 similar to those provided or sold by COMPANY,offering, orsoliciting or accepting an offer, to provide such services or to sell such products, or taking any action to form, or become employed by, a COMPANY or business to provide such services or to sell such products; provided, however, nothing in this Policy/Agreementshall be construed as limiting EMPLOYEE'Sability to engage in any lawful off-duty conduct. 5. RETURN OF DOCUMENTS AND MATERIALS. Immediately upon the termination of EMPLOYEE’S employment or at any time prior thereto if requested by COMPANY, EMPLOYEEshall return all records, documents, equipment, proposals, notes,lists, files, and any andall other materials, including but not limited to Proprietary Information in a Tangible Form, that refers, relates or otherwise pertains to COMPANY and its business, includingits products and services, personnel, customers or clients (actual orpotential), investors {actual or potential), and/or vendors and suppliers (actual or potential), or any of them, and any and all business dealings with said persons and entities (the “Returned Property and Equipment’) to COMPANY atits offices in Los Angeles, California. EMPLOYEEisnot authorized to retain any copies or duplicates of the Returned Property and Equipmentor any Proprietary Information that EMPLOYEEobtained or received as a result of EMPLOYEE'S employment or other relationships with COMPANY. 6. PROPRIETARY INFORMATION OF OTHERS/COMPLIANCE WITH LAWS. EMPLOYEEshall not breach any lawful, enforceable agreement to keep in confidence, or to refrain from using, the nonpublic ideas, information or materials ofa third party, including, butnotlimited to, a former employer or present or former customer or client. EMPLOYEEshall not bring any such ideas, information or materials to COMPANY, or use any such ideas, information or materials in connection with EMPLOYEE’S employment by COMPANY. EMPLOYEEshall comply with all national, state, local and other laws, regulations and ordinances. 7. RIGHTS AND REMEDIES UPON BREACH. If EMPLOYEEbreaches, or threatens to commit a breach of, any ofthe provisions of this Policy/Agreement, EMPLOYEE agrees that, in aid ofarbitration and as a provisional remedy (or permanent remedy ordered by an arbitrator), COMPANY shall have the right and remedy to have each and every one ofthe covenants in this Policy/Agreement specifically enforced and the right and remedy to obtain temporary and permanentinjunctive relief, it being acknowledged and agreed by EMPLOYEE that any breach or threatened breach of any of the covenants and agreements contained herein would cause irreparable injury to COMPANY and that money damages would not provide an adequate remedy at law to COMPANY. Moreover, if EMPLOYEE breaches orthreatens to commit a breach of this Policy/Agreement during EMPLOYEE’S employment with COMPANY, EMPLOYEE may be subject to the immediate termination of EMPLOYEE'S employment. In any proceeding seeking to enforce Sections 1 through 6 of this Policy/Agreement, the prevailing Party shall be entitled to recover all reasonable attorneys’ fees, costs and expenses,including any expert fees, which were incurred by that Party in connection with any such proceeding. 8. SEVERABILITY/BLUE-PENCIL. EMPLOYEEacknowledges and agrees thal (a) the covenants and agreements contained herein are reasonable and valid in geographic, 30f 9 temporal and subject matter scope andinall other respects, and do not impose limitations greater than are necessary to protect the goodwill, Proprietary Information, and other business interests ofCOMPANY;(b)if anyarbitrator (or a court when COMPANY seeks a provisional remedy in aid of arbitration) subsequently determines that any of such covenants or agreements, or any part thereof, is invalid or unenforceable, the remainder of such covenants and agreements shall not thereby be affected and shall be given full effect without regard to the invalid portions; and (c) if any arbitrator (or a court when COMPANY seeksa provisional remedy in aid of arbitration) determines that any of the covenants and agreements, or any part thereof, is invalid or unenforceable because ofthe duration or scope of such provision, such arbitrator (or a court when COMPANYseeks a provisional remedy in aid of arbitration) shall have the power to teduce the duration or scope of such provision, as the case may be, and,in its reduced form, such provision shall then be enforceable to the maximum extent permitted by applicable law. EMPLOYEEintends to and hereby confers jurisdiction to enforce each and every one of the covenants and agreements contained in Sections } through 7 ofthis Policy/Agreement upon the arbitrators (or courts when COMPANY seeks a provisional remedy in aid of arbitration) of any jurisdiction within the geographic scope of such covenants and agreements, and if the arbitrator (or a court when COMPANY seeks a provisional remedy in aid of arbitration) in any one or more ofsuch jurisdictions hold any such covenant or agreement unenforceable by reason of the breadth or scope or otherwise, it is the intention of EMPLOYEEthat such determination shall not bar or in any way affect COMPANY'S rightto the relief provided above in any other jurisdiction within the geographic scope of such covenants and agreements, as to breaches of such covenants and agreements in such other respective jurisdictions, such covenants and agreements as they relate to each jurisdiction being,for this purposes, severable into diverse and independent covenants and agreements. 9. CONFIRMATION OF AT-WILL EMPLOYMENT. Unless EMPLOYEEand COMPANY haveotherwise entered into an express, written employmentcontract or agreement for a specified term, EMPLOYEE and COMPANY acknowledge and agree that: (a) EMPLOYEE'S employment with COMPANY is and shall be atall times on an at-will) basis, and COMPANY or EMPLOYEE mayterminate EMPLOYEE’S employment at any time, for any reason, with or without cause or advance notice; (b) nothing in this Policy/Agreement or in COMPANY'S EMPLOYEE manuals, handbooks or other written materials, and no oral statements or representations of any COMPANY officer, director, agent or employee, create or are intended to create an express or implied contract for employment or continuing employment; (c) nothing in the Policy/Agreement obligates COMPANY to hire, retain or promote EMPLOYEE;(d) all definitions, terms and conditions of this Policy/Agreement apply for purposes ofthis Policy/Agreement, and for no other purpose, and do notalter or otherwiseeffect the at-will status of EMPLOYEE’S employment with COMPANY;and (e) no representative of COMPANY has anyauthority to enter into any express or implied, oral or written agreements that are contrary to the terms and conditions of this Policy/Agreement or to enter into any express or implied contracts for employment(other than for at-will employment) except for the President, Chief Executive Officer or Chief Operaling Officer of COMPANY, and any agreement between EMPLOYEEand the President, Chief Executive Officer or Chief Operating Officer must be in writing and signed by EMPLOYEEand the President, Chief Executive Officer or Chief Operating Officer. 4 of 9 10. INFORMATION ON COMPANY PREMISES. EMPLOYEEacknowledges that, by virtue of EMPLOYEE’S employment with COMPANY, EMPLOYEEwill have use of the premises and equipment ofCOMPANY includingthe electronic mail systems, the computer system, internet access, and the voicemail system (collectively, the “COMPANY Information Systems”). EMPLOYEE acknowledges and agrees that (a) COMPANY Information Systems shal} be used solely for COMPANY business and shall not be used for personal business, (b) EMPLOYEE has no right to privacy in any matter, file or information that is stored or transmitted on COMPANY Information Systems, and (c) COMPANY reserves the right to monitor or inspect any matter or file EMPLOYEE sends, stores, receives, or creates on COMPANY Information Systems, even if they contain EMPLOYEE’Spersonal information or materials. In addition, EMPLOYEE acknowledges and agrees that (a) EMPLOYEEhas noright to privacy in any items, property, documents, materials, or other information that is contained, stored or transported in COMPANY’S vehicles, and (b) COMPANY reserves the right to monitor or inspect any items, property, documents, materials, or other information that is contained, stored or transported in COMPANY’S vehicles, even if they contain EMPLOYEE'S personal property, information or materials. 11. GOVERNING LAW. This Policy/Agreement shalt be construed,interpreted, and govermed in accordance with either (a) the laws of the State of California, regardless of applicable conflicts of law principles, or (b) in the event of a breach of any of the covenants contained in Sections | through 6, the law of the State where such breach actually occurs, depending on whichever choice oflaw shall ensure to the maximum extent that the covenants shall be enforced in accordance with the intent of the Parties as reflected in this Policy/Agreement. 13. ENTIRE AGREEMENT/MODIFICATION/INO WAIVER. This Policy/Agreement(a) represent the entire agreement of the Parties with respect to the subject matter hereof, (b) shal! supersede any and all previous contracts, arrangements or understandings between the Parties hereto with respect te the subject matter hereof, and (c) may not be modified or amended except by an instrument in writing signed by each ofthe Parties hereto. 14. PARTIES IN INTEREST/ASSIGNMENT/SURVIVAL. Neither this Policy/Agreement nor any of the rights, interests or obligations under this Policy/Agreement shall be assigned, in whole or ia part, by operation of law or otherwise, by EMPLOYEE. COMPANY may sell, assign, and transfer all of its right, title and interests in this Policy/Agreement without the prior consent of EMPLOYEE, whether by operation of Jaw or otherwise, in which case this Policy/Agreement shall remain in full force after such sale, assignment or other transfer and may be enforced by (a) any successor, assigneeortransferee of al} or any part of COMPANY’Sbusiness as fully and completely as it could be enforced by COMPANY ifno suchsale, assignmentor transfer had occurred, and (6) COMPANY inthe case of any sale, assignmentor other transfer of a part, but notall, of the business. The benefits under this Policy/Agreement shall inure to and may be enforced by COMPANY,and its parent, subsidiary and affiliated corporations and entities, and their successors, transferees and assigns. EMPLOYEE’Sduties and obligations underthis Policy/Agreement shall survive the termination of EMPLOYEE’S employment with COMPANY. 5 of 9 1S. NOTIFICATION TO NEW EMPLOYER. EMPLOYEEunderstands that the various terms. and conditions of this Policy/Agreement shall survive and continue after EMPLOYEE’S employment with COMPANY terminates. Accordingly, EMPLOYEE hereby expressly agrees that COMPANY may inform EMPLOYEE’S new employer regarding EMPLOYEE'Sduties and obligations underthis Policy/Agreement. 16. ARBITRATION. a. EMPLOYEE and COMPANY agree that any and all disputes that may arise in connection with, arise out of or relate to this Policy/Agreement, or any dispute that relates in any way, in whole or in part, to EMPLOYEE'S hiring by, employment with or separation from COMPANY,or any other dispute by and between EMPLOYEE,on the one hand, and COMPANY,its parent, subsidiary andaffiliated corporations andentities, and each of their respective officers, directors, agents and employees (the “Company Parties”), on the other hand, shalj be submitted to binding arbitration before a neutral arbitrator (who shall be a retired judge) pursuant to the then-current dispute resolution mes and procedures of the American Arbitration Association (“AAA”), or such otherrules and procedures to which the Parties may otherwise agree. This arbitration obligation extends to any and all claims that may arise by and between the Parties and, except as expressly required by applicable law, extends to, without limitation, claims or causes of action for wrongful termination, impairmentof ability to compete in the open labor market, breach of express or implied contract, breach of the covenantofgood faith and fair dealing, breach of fiduciary duty, breach of duty of loyalty, fraud, - misrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, disability, loss of future earnings, and claims under any applicabie state Constitution, the United States Constitution, and applicable state and federal fair employment Jaws, federal equal employment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Actof 1964, as arnended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988, as amended, the Americans With Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Family Medical Leave Act, as amended, the Employee Retirement Income Security Act of 1974, as amended, the Age Discrimination in Employment Act, as amended, the California Fair Employment and Housing Act, as amended,the California Family Rights Act, as amended, the California Labor Code, as amended, the Califomia. Business and Professions Code, as amended, and al] other applicable state or federal law. COMPANY and EMPLOYEEunderstand and agree that arbitration of the disputes and claims covered bythis Policy/Agreementshall be the sole and exclusive method of resolving any andall existing and future disputes or claims arising by and between the Parties, provided, however, nothing in this Policy/Agreement should be interpreted as restricting or prohibiting EMPLOYEEfrom filing a charge or complaint with a federal, state, or local administrative agency charged with investigating and/or prosecuting complaints under any applicable federal, state or municipal law or regulation, but any dispute or claim that is not resolved through thefederal, state, or loca! agency must be submitted to arbitration in accordancewith this Policy/Agreement. b. COMPANY and EMPLOYEEfurther understand and agree that claims for workers’ compensation benefits, unemployment insurance, or state or federal disability insurance are not covered by this Policy/Agreement and shall therefore be resolved in any 6 of 9 appropriate forum, including the Workers’ Compensation Appeals Board, as required by the laws then in effect. Furthermore, except as otherwise required under applicable law, (1) EMPLOYEE and COMPANY expressly intend and agree “that class action and representative action procedures shal] not be asserted, nor will they apply, in any arbitration pursuant to this Policy/Agreement; (2) EMPLOYEE and COMPANYagree that each will not assert class action or representative action claims against the other in arbitration or otherwise, and (3) each of EMPLOYEEand COMPANYshall only submit their own, individual claims in arbitration and will not seek to representthe interests of any other person. c. Any demandforarbitration by either EMPLOYEE or COMPANY shall be served or filed within the statute of limitations that is applicable to the claim(s) upon which arbitration is sought or required. Anyfailure to demand arbitration within this time frame and according to these rules shall constitute a waiverofall rights to raise any claims in any forum arising outof any dispute that was subjectto arbitration to the sameextentsuch claims would be barred if the matter proceeded in court (along with the same defenses to such claims). d. The Parties shall select a mutually agreeable arbitrator (who shall be a retired judge) from a list of arbitrators provided by ADR Services, ARC, Judicate West, or JAMS/Endispute. If, however, the Parties are unable to reach an agreement regarding the selection of an arbitrator, without incorporating the California Arbitration Act into this Policy/Agreement, the Parties nevertheless agree that a neutral arbitrator (who shall be a retired judge) shall be selected or appointed in the manner provided under the then-effective provisions of the Califomia Arbitration Act, California Code ofCivil Procedure section 1282et seq. e. The arbitration shall take place in Los Angeles, California, or, at EMPLOYEE'S option, the state and county where EMPLOYEE worksor last worked for COMPANY. f. This arbitration agreement shall be governed by and construed and enforced pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and not individual state laws regarding enforcement ofarbitration agreements or otherwise. The Arbitrator shall allow reasonable discovery to prepare forarbitration of any claims. At a minimum, without adopting or incorporating ‘the California Arbitration Act into this Policy/Agreement, the Arbitrator shall — allow at least that discovery that is authorized or permitted by Caltfomia Code of Civil Procedure section 1283.05 and any other discovery required by law in arbitration proceedings. Nothingin this Policy/Agreement relieves either Party from any obligation they may have to exhaust certain administrative remedies before arbitrating any claims or disputes under this Policy/Agreement. g. In any arbitration proceeding under this Policy/Agreement, the Arbitrator shal] issue a written award that sets forth the essential findings and conclusions on which the award is based. The Arbitrator shall have the authonty to award anyrelief authonzed by law in connection with the asserted claims or disputes. The Arbitrator’s award shall be subject to correction, confirmation, or vacation, as provided by any applicable governing judicial review of arbitration awards. 7 of 9 h. Unless otherwise provide d or permitted under applicable l aw, COMPANY shall pay the arbitrator’s fee and any other type of expense or co st that EMPLOYEE would not be required to bear if he or she were free to bring the dispute o r claim in court as well as any other expenseor costthat is uni que to arbitration. Except as ot herwise required under applicab le Jaw (or the Parties’ agreem ent), COMPANY and EMP LOYEEshall each pay th eir own attorneys’ fees and costs inc urred in connection with the arbitration, and the arbitrato r will not have authority to award attorne ys’ fees and costs unless a sta tute or contract at issue in the dispute authonzes the award of attomeys’ fees and costs to the prevailing Party, in wh ich case rity to make an award of atto rneys’ fees and costs to the s ame the arbitrator shall have the a utho extent available under applic able Jaw. If there is a disp ute as to whether COMPAN Y or EMPLOYEEisthe prevaili ng party in the arbitration, th e Arbitrator will decide this issue. b. The arbitration of di sputes and claims under thi s Policy/Agreement shall be instead ofa trial before a court or jury and COMPANY and EMPLOYEE understand that they are expressly waiving any an d all rights to a trial before a court and/or jury regardin g any disputes and claims which th ey now have or which they m ayin the future have that ar e subject to arbitration under this Policy /Agreement, provided, howe ver, nothing in this Policy /Agreement prohibits either Party from s eeking provisional remedies in court in aid of arbitration including temporary restraining orders, prelimtmary injunctions andot her provisional remedies. 17. COMPANY POLIC Y. The foregoing provisio ns of this Policy/Agreement are binding upon EMPLOYEE and COMPANY irrespecti ve of whether EMPLOYEE and/or COMPANY signs this Polic y/Agreement. Theterms an d conditions of this Policy/ Agreement describe some of COMPAN Y’S policies and procedures and supplement such polici es and procedures set forth in COM PANY'S EMPLOYEEhandb ook and other policy and pr ocedure statements or communication s of COMPANY. EMPLOYE E'S and COMPANY'Ssignat ures on this Policy/Agreement confir ms EMPLOYEE’S and COMP ANY’S knowledge of such p olicies and procedures and EMPLOYE E’Sand COMPANY'S agr eement to comply with such policies, procedures, and terms an d conditions of employme nt and/or continuing empl oyment. EMPLOYEEaffirmatively represents that EMPLOYEE has other comparable empl oyment opportunities available to E MPLOYEE (other than emp loyment with COMPANY) and EMPLOYEEfreely and volu ntarily enters into this Policy /Agreement and agrees to be b ound by the foregoing without any du ress or undue pressure what soever and without relying o n any promises, representations oF warranties regarding the sub ject matter of this Policy/A greement except for the express terms of this Policy/Agreement. 8 of 9 To acknowledge EMPLOYEE'S recei pt ofthis Policy/Agreement, EMPLOYE Ehas signed this acknowledgementon the d ay and-year written below; but, EMPL OYEEand COMPANY are boundby the Arbitrat ion Policy/Agreement with or without signing this Policy/Agreement. EMPLOYEE Name. ARSNAVCR_ TL.SKANLAL ae Address. TEse. Meer fA Bt w- Hot. ER WEES Date: _f ~— 2 / , 2004 CLS WORLDWIDE SERVICES, L y a . By: Lo ~ : Lo Its. PALLIAT+ cdo Date: {2.22 /— 74 , 2004 Los_Angeles:36250 1.2 820000. 163 4 9 of 9 EXHIBIT B Fox Rothschild ue ATTORNEYS AT LAW 1800 Century Park East, Suite 300 Los Angeles, CA 90067-1506 Tel 310.598.4150 Fax 310.556.9828 www.foxrothschild.com DATE: SEPTEMBER19,2011 FACSIMILE TRANSMITTAL SHEET TO: . COMPANY: FAX NUMBER: PHONE NUMBER: Raul Perez, Esq. and Inutiative Legal Group 310-861-9051 310-556-5637 FROM: . PHONE NUMBER:EMAIL: BILLING NUMBER: Yesenia Gallegos (310) 598-4159 ygallegos@foxrothschild.com NUMBEROF PAGES: CHARGE FILE #: PRIORITY: LOG NUMBER: Boe 15135-00005 REGULAR IF YOU DO NOT RECEIVE ALL OF THE PAGES, PLEASE CALL (310) 598-4150 AS SOON AS POSSIBLE. ORIGINAL DOCUMENT WILL FOLLOW BY MAIL Ourcenr Ororreview Opitiase COMMENT CIpLeASE REPLY MI FOR YOUR INFORMATION NOTES/COMMENTS: Arshavit Iskanian v. CLS Transportation Attached please find correspondence of today’s date. TRS CIRCULAR230 DISCLOSURE: PURSUANTTOTREASURY REGULATIONS,ANYTAX ADVICE CONTAINED IN ‘ITS COMMUNICATION(INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTIEN TO KE USED,AND CANNOTBE USED OR RELIED UPON BY YOU ORANY OTHER PERSON,FORTHE PURPOSEOF()AVOIDING PENALTIES UNDERTHE INTERNAL REVENUF. CODE: OR(ii) PROMOTING, MARKETING OR RECOMMENDINGTOANOTHER PARTLY ANYTAX ADVICE ADDRESSED HEREIN. TIE INFORMATION CONTAINEDIN THIS FACSIMILE MESSAGEIS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGEIS NOT THE INTENDEDRECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATIONIN ERROR, PLEASE IMMEDIATELYNOTIFY US BY ‘TELEPHONE AND RETURN THE ORIGINAL MESSAGETO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL SERVICE. THANK YOU. LAT 87267vEi OS/26/11 Fox Rothschild ue ATTORNEYS AT LAW 1800 Century Park East, Suite 300 Los Angeles, CA 90067-1506 Tel 310.598.4150 Fax 336.556.9828 www.foxrothschild.com : _ Yesenia Gallegos Direct Dial: (310) 598-4159 Email Address: ygallegos@foxrothschild.com September 19, 2011 VIA FACSIMILE AND FIRST CLASS MAIL Terry Shea Arbitration Coordinator ADRServices,Inc. 915 Wilshire Bivd., Suite 1900 Los Angeles, CA 90017 Re: Alston, Glen-ADR Case No. 11-5401 Araya, Daniel-ADRS Case No.11-5223 Bailey, Karen-ADR Case No. 11-5402 Baker, William-ADRS Case No. 11-5240 Baranco, David-ADRS Case No. 11-5197 Ben Yair, Neil-ADRS Case No. 11-5220 Boyd, Jerry-ADRS Case No. 11-5206 Caldwell, Darold-ADRS Case No. 11-5225 Candelaria, Rafael-ADRS Case No. 11-5232 Chang, Kung Ming-ADRS Case No.11-5212 Cheng, Kenny-ADRS Case No. 11-5202 Clark, LeRoy-ADRS Case No. 11-5213 Collins, Cleophus-ADRS Case No. 11-5291 Colwell, Reginald-ADRS Case No. 11-5233 Cooley, Patrick-ADRS Case No. 11-5231 De La Mora, Miguel-ADRSCase No. 11-5218 Denison, James-ADRS Case No. 11-5199 Dubuy, Frank G.-ADRS Case No. 11-5229 Earnshaw, Luis-ADRS Case No. 11-5201 Evans, Johnnie-ADRS Case No. 11-5208 Fuentes, Raul-ADRS Case No. 11-5404 Fumoto, Jiro-ADRS Case No. 11-5207 Funes, Julius-ADRS Case No. 11-5210 Garcia, Angelo-ADRS Case No. 11-5193 Garcia, Edwin-ADRSCase No. 11-5227 Griffin, Gerald-ADRS Case No. 11-5230 A Fenrsytvania Lite) Labit: Farinerstey Califernia Conaechicvi Detuware Florida Nevada New Jersey NewYork Pennsyivania Ms. Shea September 19, 2011 Page 2 Ikner, Wayne-ADRS Case No.[1-5239 Kempler, Greg-ADRS Case No. 11-5203 Kroo, Igor -ADRS Case No. 11-5204 Lindsey, Cassandra-ADRS Case No. 11-5222 Loatman, Matthew-ADRS Case No. 11-5217 Martin, Thomas-ADRS Case No. 11-5238 Maynard, Steve-ADRS Case No. 11-5236 Millington Jr, Daniel Rogers-ADRS Case No. 11-5224 Montoya, David-ADRS Case No. 11-5226 Mueller, Carl-ADRS Case No. 11-5196 Norton, Elijha-ADRS Case No. 11-5228 Olmedo, Robert-ADRS Case No. 11-5406 Paull, Pater-ADRS Case No. 11-5221 Perry, Roger-ADRS Case No. 11-5234 Pinkerton, William-ADRS Case No. 11-5293 Post, Arthur E.-ADRS Case No. 11-5405 Richmond, James-ADRS Case No. 11-5200 Rogan, Myron-ADRS Case No. 11-5219 Rose, Marquel-ADRS Case No. 11-5215 Sazo, Marcial-ADRS Case No. 11-5214 Scott, Jonathan-ADRS Case No. 11-5209 Sharif, Karim-ADRS Case No. 11-5211 Shafii,Masood-ADRS Case No. 11-5216 Silva, Flavio-ADRS Case No. 11-5198 Sloan, Bennett-ADRS Case No. 11-5195 Smith, Edward-ADRS Case No. 11-5181 Stellman, Susan-ADRS Case No. 11-5237 Sterling, James-ADRS Case No. 11-5205 Sullivan, Scott-ADRS Case No. 11-5235 Swartz, Carl-ADRS Case No. 11-5292 Toailoa, Avaavau-ADRSCase No.11-5194 Warren, Adrien-ADRSCase No. 11-5192 Washington, Belinda-ADRS Case No. 11-5403 Dear Ms. Shea: This shal] respond to your recent request that CLS Transportation of Los Angeles, LLC and other named defendants select an arbitrator in the above-referenced matters. Please be advised that we do not recognize the purported Plaintiffs’ demandsfor arbitration as valid submissions. Asa preliminary matter, the procedure you have provided for choosing an arbitrator is inconsistent with the requirementsetforth in the arbitration agreementat issue, which requiresthatthe parties select a retired judge as the arbitrator. In any event, the arbitration agreementat issue invokes LAI 101953v1 09/18/11 Ms.Shea September 19, 2011 Page 3 the services of the American Arbitration Association (*AAA”), and requires that the parties follow AAA’s rules. Moreover,Plaintiffs’ counsel has not presented anything to showthathe is authorized by the purported Plaintiffs to initiate arbitration. If the purported Plaintiffs exist and seek to arbitrate, they will need to file with AAA and tender the appropriatefees. Should you have any questions, please feel free to call me. Very trulyyours, Yesenia Gallegos cc: Raul Perez, Esq. LAI 101953v1 09/18/11 EXHIBIT C . 185 Fox Rothschild ue 457 ATTCRNEYSAT LAW 1866 Century Park Zest, Suite 306 Los Angeles, CA 90067-1506 ces Tel 310.598.4150 Fax 310.536.9828 100 wre forecihschilid.cem 143 org, Yesenia Gallegos Direct Dial: (310) 598-4159 Email Address: ygallegosi@foxrothschild.com October 10, 2011 VIA FACSIMILE/FIRST CLASS MAIL Adam Shoneck Intake Specialist American Arbitration Association 1101 Laure] Oak Road, Suite 100 Vorhees, NJ 08043 MEL. Fax: 877-304-8457 is Re: Glen Alston, et al. v. CLS Transportation of Los Angeles LLC,et al. Dear Mr. Shoneck: . . l neWearein receipt ofyour letter of October 6, 2011, requesting that CLS Transportation of Los Angeles, LLC, CLS Worldwide Services, LLC, Empire International, Ltd., Empire/CLS Worldwide Chauffeured Services, GTS Holdings,Inc., and David Seelinger tender a non- refundable fee in the amount of $52,275.00 in the above referenced matter. Wedonotat this time recognizethevalidity of the filings. All of the claimants are part of a class action that is currently on appeal. Wehave notreceived anything authoritative confirming that the claimants have opted out ofthe class, or that they even know that these demandsto arbitrate have been made on their behalf. If the demands are genuine, they are IDENTICAL and the parties are IDENTICAL. Thearbitrations, therefore, should be completely consolidated before a single arbitrator with a substantially reduced fee for the employer. Very truly yours, Yesenia Gallegos A Pomersyivamip Limited Lastdy Thu loerstry Catlorniia Connecticut Belaware Cistrict of Ceiumbia Finvicte: Nevaca Now Jersey New York Penansyivania¥ ; CM-015 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and Raul Perez (SBN 174687); Melissa Grant(S(SBN”305633) I Initiative Legal Group APC, Suzy E. Lee (SBN 271120) 1800 Century Park East, Second Floor Los Angeles, California 90067 FOR COURT USE ONLY FILED Superior Court of California rerepHoneno: (310) 556-5637 Fax no. (ontionay: (310) 861-9051 County of Los Angeles E-MAIL ADDRESS {Optional}: . aTTorney FOR wane: Plaintiff Arshavir Iskanian, et al. NQV 2) 201] SUPERIOR COURT OF CALIFORNIA, COUNTY OF Los Angeles John A. Clathe, Executive Oleancy greet anoress: 111 North Hill Street By , on mauincavoress: 11] North Hill Street, California 90012 MOSES SOTO » Deputy ciryanpzp cone: Los Angeles, 90012 prancn name: Stanley Mosk Courthouse - Central District PLAINTIFFPETITIONER: Arshavir Iskanian,et al. case mune: BC 356521 DEFENDANTIRESPONDENT: CLS Transportation Los Angeles LLC JUDICIALOFFICER: Judge Robert L. Hess OEPT.: NOTICE OF RELATED CASE 24 BY FAX identify, in chronological order accordingto date offiling, all cases related {to the case referenced above. 1, a. Titles GREG KEMPLERvs. CLS TRANSPORTATION LOS ANGELES b. Case number: BC 473931 c. Court: same as above {__] otherstate or federal court (name and address): d. Department: 42 | e. Case type: [_] limited civil 7] unlimited vit. probate (_] familyiaw ["_] other(specify): f. Filingdate: 11/18/2011 g. Hasthis case been designated or determined as “complex?” h. Relationshipof this case to the case referenced above (check all that apply): {__] involves the sameparties and is based on the sameor similar claims. {_] Yes No [__] arises from the same or substantially identical transactions,incidents, or events requiring the determination of the same or substantially identical questions of law orfact. C_] involvesclaims against,title to, possession of, or damages to the same property. is likety for other reasonsto requite substantial duplication ofjudicial resourcesif heard by different judges. Additionat explanationis attachedin attachment 1h i. Status of case: pending {__] dismissed [J with {—_] without prejudice [__] disposed of by judgment 2. a. Title: b. Case number: c. Court [_] same as above (1 otherstate or federal court (name and address): d. Department: ee" aM Pago 1 of 3 X v i A a ‘ Qqye>re ps (TYPE OR PRINT NAME OF PARTY OR ATTORNEY) (SIGNATURE OF PARTY OR ATTORNEY) N Tirorsinee ‘hy 3. 2007] NOTICE OF RELATED CASE Page2of3 ae pe _ SHORTTITLE: CASE NUMBER: Arshavir Iskanian, et al. v. CLS Transportation Los Angeles LLC BC 356521 1 Attachment 1h to Notice of Related Case: 2 The Kempler v. CLS Transportation Los Angeles, LLC (BC 473931) caserelates to the Iskanian 3 v. CLS Transportation Los Angeles, LLC (BC 356521- consolidated w/BC381065)action in two ways: 4 (L) The KemplerPlaintiffs are former class members previously certified in the Iskanian action. 5 (2) Kempler Plaintiffs’ claims arise from CLS’s failure to comply with an orderin the Iskanian matter 6 dismissing the class claims and ordering individualarbitration. The causes ofaction relate to 7 Defendant’s failure to conductindividualarbitration with Plaintiffs. 8 However,it is importantto note that the Iskanian action is stayed pending appeal, while the 9 Kempler Plaintiffs have opted out and are pursuing individual arbitration. 10 1 12 13 44 15 16 17 18 19 20 21 22 23 24 25 26 (Required for verified pleading) The items on this page stated on information and belief are (specify item numbers, notline numbers):re This page may be used with any Judicial Council form or any other paperfiled with the court. Pageav ay 62) Form Approved by the - __ ADDITIONAL PAGE ty, dusicial Counel of Cattoria Attach to Judicial Council Form or Other Court Paper CRC 201, 501S MC-020 [New January 1, 1987) | PLAINTIFFIPETITIONER: Arshavir Iskanian,et al. CASE NUMBER: DEFENDANT/RESPONDENT: CLS Transportation Los Angeles LLC BC 356521 CM-015 PROOF OF SERVICE BY FIRST-CLASS MAIL NOTICE OF RELATED CASE (NOTE: You cannot serve the Notice of Related Case if you are a party in the action. The person who servedthe notice must completethis proofof service. The notice must be served onail known parties in each related action or proceeding.) 1. \am at teast 18 years old and not a party to this action. |am a resident of or employed in the county where the mailing took place, and my residence or business addressis (specify): Initiative Legal Group APC, 1800 Century Park East, Second Floor, Los Angeles, California 90067 I served a copy of the Notice of Related Case by enclosingit in a sealed envelope with first-class postage fully prepaid and (check one): a. deposited the sealed envelope with the United States Postal Service. b. [] placed the sealed envelopefor collection and processing for mailing, following this business's usual practices, with which | am readily familiar. On the same day correspondenceis placed forcollection and mailing,itis deposited in the ordinary course of business with the United States Postal Service. 3. The Notice of Related Case was mailed: a. on({date): November 21, 2011 b. from (city and state): Los Angeles, Califormia 4. The envelope was addressed and mailed as follows: a. Name of person served: c. Nameof person served: David F. Faustman, FOX ROTHSCHILD Street address: 1800 Century Park East, #300 Street address: City: Los Angeles ° City: State and zip code: California 90067 State andzip code: b. Name of person served: d. Nameof person served: Street address: Street address: City: City: State and zip code: State and zip code: CI Names and addressesof additional persons served are attached. (You may use form POS-030(P).) ) declare under penalty of perjury under the lawsof the State of Califomia that the foregoing is true and correct. Date: November 21, 2011 Matthew Krout > / 4 ,Styad’ eZ ze 4 (TYPE OR PRINT NAME OF DECLARANT) a (SIBNATURE OF DECLARANT) fi nM {ir015 [Rev. Jy 9, 2007] NOTICE OF RELATED CASE Page 3013 vy ¥ oO o C O N Y D H W O F& F W D N Y m w N H N M N N N Y N N f F F F S e P P S P Pr P o R O R e S U S Raul Perez (SBN 174687) RPerez@lInitiativeLegal.com Melissa Grant (SBN 205633) MGrant@linitiativeLegal.com Suzy E. Lee (SBN 271120) SuzyLee@lInitiativeLegal.com INITIATIVE LEGAL GROUP APC 1800 Century Park East, 2nd Floor Los Angeles, California 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 Attorneys for Plaintiffs CONFORMED8 cpato pre 2 0 201i John A. Clarke, Executive Officer/Clerk BY__ Deputy Raul Sanchez SUPERIOR COURT OF THE STATE OF CALIFORNIA FORTHE COUNTY OF LOS ANGELES GREG KEMPLER, ADRIEN WARREN, ANANTRAY SANATHARA, ANGELO GARCIA, ARTHUR POST, AVAAVAU TOAILOA, BELINDA WASHINGTON, BENNETT SLOAN, BRUCE GOLD, CARL MUELLER, CARL SWARTZ, CASSANDRA LINDSEY, CLEOPHUS COLLINS, DANIEL ARAYA, DANIEL ROGERS MILLINGTON, JR., DAROLD CALDWELL, DAVID BARANCO, DAVID MONTOYA, DAWN BINGHAM, EDWARD SMITH, EDWIN GARCIA, ELIJJHA NORTON, FLAVIO SILVA, FRANK G. DUBUY, GERALD GRIFFIN, GLEN ALSTON, IGOR KROO, JAMESC., DENISON, JAMES RICHMOND, JAMESSTERLING, JERRY BOYD,JIRO FUMOTO,JOHNNIE EVANS, JONATHON SCOTT, JULTUS FUNES, KAREN BAILEY, KARIM SHARIF, KENNY CHENG, KUNG MING CHANG, LAMONT CRAWFORD, LEROY CLARK, LUIS EARNSHAW, MARCIAL SAZO, MARQUELROSE, MASOOD SHAFI], MATTHEW LOATMAN, MIGUEL DE LA MORA, MYRON ROGAN, NEIL BEN YAIR, PATER PAULL, PATRICK COOLEY, RAFAEL CANDELARIA, RAUL FUENTES, REGINALD COLWELL, ROBERT Case No.: BC473931 [Assigned to Hon. Robert L. Hess; Ordered Related to BC356521] AMENDED NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCE OF INDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT Date: February 7, 2012 Time: 8:30 a.m. Dept.: 24 Complaint Filed: |November18, 2011 AMENDED NOTICE OF MOTION AND MOTION FOR ORDER COMPELLINGSPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT Y ¥ W 4 L a 0 e o N Y D n W n F& F W Y N Y w m LP H N Y V Y N Y N Y N N N N N | F Y Y K F P FT F Y F K F H F T B B oO o a A N k B W N Y F o O o w o H N D N F F W N Y F F O S OLMEDO, ROGER PERRY, SCOTT SULLIVAN, STEVE MAYNARD, SUSAN STELLMAN, THOMAS MARTIN, WAYNE IKNER, WILLIAM BANKER, AND WILLIAM PINKERTON, Plaintiffs, VS. CLS TRANSPORTATION LOS ANGELES LLC,a Delaware corporation; and DOES1 through 10,inclusive, Defendants. AMENDED NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT w o fe o H N D H W n F F W D N H b o p o b v b w V Y K N N Y N Y NH N F Y | F F Y F Y F F S E F S e Y Y o N H K M N B R W W N Y K K C O D O e n D U N F F W w N Y | C O TO DEFENDANT CLS TRANSPORTATION LOS ANGELES LLC AND ITS ATTORNEY OF RECORD: PLEASE TAKE NOTICE THATonFebruary7, 2012 at 8:30 a.m. in Department 24 in the above-captioned court, located at 111 North Hill Street, Los Angeles, California, 90012, the Plaintiffs named above will, and hereby do move the Court for an order for compelling specific performance ofindividual arbitration; or, in the alternative, setting aside the arbitration agreement. Oncethecase is assigned to a judge in the above-captioned court, Plaintiffs will file and serve an amendednotice ofthis motion setting forth the date, time and place of hearing. Plaintiffs’ motion is made pursuant to California Code of Civil Procedure §§ 526, 1281.8(a)(3) and the Court’s equitable powersto specifically enforce the agreements for individual arbitration (“Agreement”). Specifically, Defendant has breached the Agreement with Plaintiffs by first compelling individual arbitration in Court, causing Plaintifis’ class claims to be dismissed, and then refusing to participate in individualarbitration whenPlaintiffs attempted to comply with the Court Order. Defendanthas taken specific acts, memorialized in writing, which repudiates the same Agreement that Defendantpreviously attempted to enforce in Court. Equity and justice would not permit Defendantto take contradictory positions in order to deny Plaintiffs a forum to pursue their claims. Thus, Plaintiffs seek an order to secure an appropriate forum to adjudicate their claims. In the alternative, Plaintiffs moves to have the Court revoke, rescind, or set aside the Agreementpursuant to CodeofCivil Procedure § 1281.2(b) and the court’s equitable powers. This alternative remedy is made onthree grounds. First, due to Defendant’s intransigence, the only body contractually permitted to administerthe arbitration, the American Arbitration Association, nowflatly refuses to conduct business with Defendant. Due to this impracticable condition, the Arbitration cannotbe performed andthusthe Agreementshouldbe set aside to allow Plaintiffs to pursue their claims in Court. Second, Defendanthas taken contradictory positions in Court, which is contrary to equity, in a clear attempt to deprive Plaintiffs oftheir due process. Though Defendant had heavily litigated a certified class action for four years, Defendantsuddenlyinsisted that all matters must be resolved through individual arbitration within sixty daysoftrial. It then successfully compelled Page1 AMENDED NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION; OR, IN THE ALTERNATIVE,SETTING ASIDE THE ARBITRATION AGREEMENT O o f e J N D B U H F F W N Y O o N O N Y N Y N H N Y N Y N Y Y N F f K F K F F F Y F F F F F R Y e S c o M D A A 8 B W O N N B F O O w m N T D N F F W N K S © individual arbitration ofthe named Plaintiff, with the remaining class members’ claims dismissed. WhenPlaintiffs demandedindividual arbitration, Defendantresisted, refusing to tender the requisite fees. Defendantsfinally filed a procedurally defective motion to consolidate the arbitration demands on groundsofefficiency and cost-effectiveness — which are the samebasesforclass actions. Defendant must thus be estopped from enforcing the Agreementsinceit had taken contradictory legal positions in an effort to deprive Plaintiffs ofthe right to adjudicate their claims. Lastly, the Agreements should be rescinded on the simple ground that Defendant unmistakably breached the Agreementbyfailing to tender arbitration fees. Rescission is thus the most appropriate remedyto restore Plaintiffs’ rights. On any one ofthe three foregoing grounds, the Court should revoke, rescind, or set aside the Agreementand grant Plaintiffs leave to amend the complaintto allege their class wage and hourclaimsin this action. Plaintiffs’ Motion is based on this Notice ofMotion, the accompanying Memorandum of Points and Authorities, the declaration ofRaul Perez andall exhibits attached thereto, the Request for Judicial Notice and all exhibits attached thereto, all pleadings andpapersonfile in this action andin the related action Iskanian v. CLS Transportation Los Angeles LLC, Los Angeles Superior Court Case No. BC356521, and such other matters as may be presented to the Court at or before the time ofthe hearing. Dated: December20, 2011 Respectfully submitted, Initiative Legal Group APC By: / -“ RaurPerez Melissa Grant Suzy E. Lee Attorneys for Plaintiffs Page 2 AMENDEDNOTICE OF MOTION AND MOTION FOR ORDER COMPELLING SPECIFIC PERFORMANCEOF INDIVIDUAL ARBITRATION;OR, IN THE ALTERNATIVE, SETTING ASIDE THE ARBITRATION AGREEMENT O o O N D H W n f F W Y N N N w w Y D D D i e e S N R R R B B Y S C H W U W I A A R B R E S S Raul Perez (SBN 174687) RPerez@InitiativeLegal.com Melissa Grant (SBN 205633) MGrant@InitiativeLegal.com Suzy E. Lee (SBN 271120) SuzyLee@lnitiativeLegal.com INITIATIVE LEGAL GROUP APC 1800 Century Park East, 2nd Floor Los Angeles, California 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 Attorneys for Plaintiffs CONFOKMED Y Cop sureGINAL FILED YERION COURTOFCCOU"FF OF LOSANGESEA ~r be JON A. Craigs.Po ¥ 2.7 LU By 4 a,Utficer/Clerk Gionetta Rat inson Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES GREG KEMPLER, ADRIEN WARREN, ANANTRAY SANATHARA, ANGELO GARCIA, ARTHUR POST, AVAAVAU TOAILOA, BELINDA WASHINGTON, BENNETT SLOAN, BRUCE GOLD, CARL MUELLER, CARL SWARTZ, CASSANDRA LINDSEY, CLEOPHUS COLLINS, DANIEL ARAYA, DANIEL ROGERS MILLINGTON, JR., DAROLD CALDWELL, DAVID BARANCO, DAVID MONTOYA, DAWN BINGHAM, EDWARD SMITH, EDWIN GARCIA, ELIJHA NORTON, FLAVIO SILVA, FRANK G. DUBUY, GERALD GRIFFIN, GLEN ALSTON, IGOR KROO, JAMES C. DENISON, JAMES RICHMOND, JAMESSTERLING, JERRY BOYD, JIRO FUMOTO,JOHNNIE EVANS, JONATHON SCOTT, JULIUS FUNES, KAREN BAILEY, KARIM SHARIF, KENNY CHENG, KUNG MING CHANG, LAMONT CRAWFORD, LEROY CLARK, LUIS EARNSHAW, MARCIAL SAZO, MARQUEL ROSE, MASOOD SHAFIL MATTHEW LOATMAN, MIGUEL DE LA MORA, MYRON ROGAN, NEIL BEN YAIR, PATER PAULL, PATRICK COOLEY, RAFAEL CANDELARIA, RAUL FUENTES, REGINALD COLWELL, ROBERT Case No.: BC473931 {Assigned to Hon. Robert L. Hess; Ordered Related to BC356521] NOTICE OF RULING RE: RELATED CASES Complaint Filed: November18, 2011 NOTICE OF RULING RE: RELATED CASES oO o f o I N WD B U n F F W D N Y m w w w K Y N Y N Y N K Y Y N Y F F f K F F P FS F F F T e S F B S oO o t N A A B& B W H & § o S G& b e H D H F F W Y N Y T F S F OLMEDO, ROGER PERRY, SCOTT SULLIVAN, STEVE MAYNARD, SUSAN STELLMAN, THOMAS MARTIN, WAYNE IKNER, WILLIAM BANKER, AND WILLIAM PINKERTON, Plaintiffs, vs. CLS TRANSPORTATION LOS ANGELES LLC,a Delaware corporation; and DOES1 through 10, inclusive, Defendants. NOTICE OF RULING RE: RELATED CASES o O O o S N DB O U O F R W Y N O N O N O NY O NY O K N N D D O D R R O w m m e e e e a e e e o O sa s D H O H F F W D N Y F F DB D C O C O H S H R A B ® W Y N H S& F | TO DEFENDANT CLS TRANSPORTATION LOS ANGELES LLC AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THATon December16, 2011 the Court issued a minute order relating case number BC356521 and BC473921 under CRC 3.300. Furthermore, the Court ordered case number BC473921 transferred to Judge Robert L. Hess in Department 24 forall purposes. All hearing dates in Department42 are vacated and mustbereset in Department 24. Both casesare set for status conferenceat 8:30 a.m. on January 6, 2012. Attached as Exhibit A please find a true and correct copy of the Court’s minute order. Dated: December 21, 2011 Respectfully submitted, Initiative Legal Group APC By: f 2 Raul Perez — SS Melissa Grant Suzy E. Lee Attomeysfor Plaintiffs Page 1 NOTICE OF RULING RE: RELATED CASES EXHIBIT A ED SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES DATE: 12/16/11 DEPT. 24 HONORABLE Robert L. Hess JUDGE|| G. Charles DEPUTY CLERK HONORABLE JUDGE PRO TEM ELECTRONIC RECORDING MONITOR B. Bell C/A Deputy Sheriff|| None Reporter 1:30 pmjBC473931 Plaintiff Counsel GREG KEMPLER No Appearance Defendant VS Counsel CLS TRANSPORTATION LOS ANGELES R/t BC356521 NATURE OF PROCEEDINGS: COURT ORDER It appears that LASC cases BC356521 and BC472921 are related within the meaning of CRC 3.300. Good cause appearing, case BC473931 is ordered transferred forth- with the the calendar of Judge Robert Hess in Depart- ment 24 for all purposes. All hearing dates in Dept. 42 are vacated and must be reset in Department 24. Both cases are set for status conference at 8:30am January 6, 2012. A copy of the minute order is sent via U.S. mail addressed to moving party, who is to give notice. Raul Perez Initiative Legal Group 1800 Century Park East Second Floor Los Angeles, CA 9067 MINUTES ENTERED Page 1 of 1 DEPT. 24 12/16/11 COUNTY CLERK I N I T I A T I V E L E G A L G R O U P A P C 1 8 0 0 C E N T U R Y P A R K EA ST , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 9 0 0 6 7 o O f o S N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES ] am employedin the State of California, County of Los Angeles. I am over the age of 18 and not a party to the within suit; my business address is 1800 Century Park East, nd Floor, Los Angeles, California 90067. On December21, 2011, I served the document described as: NOTICE OF RULING RE: RELATED CASESonthe interested parties in this action by sending on the interested parties in this action by sending [ ] the original [or] [~] a true copy thereof [~’] to interested parties as follows[or] [, ] as stated on the attached servicelist: SEE ATTACHED SERVICE LIST [ ] BY MAIL (ENCLOSEDINA SEALED ENVELOPE):I deposited the envelope(s) for mailing in the ordinary course of business at Los Angeles, California. I am “readily familiar” with this firm’s practice of collection and processing correspondence for mailing. Underthat practice, sealed envelopes are deposited with the U.S. Postal Service that same day in the ordinary course of business with postage thereon fully prepaid at Los Angeles, California. { ] BY E-MAIL: J hereby certify that this document was served from Los Angeles, California, by e-mail delivery on the parties listed herein at their most recent known e- mail address or e-mail of record in this action. [ ] BY FAX: [| herebycertify that this document was served from Los Angeles, California, by facsimile delivery on the parties listed herein at their most recent fax number of record in this action. [¥] BY PERSONAL SERVICE:| delivered the document, enclosed in a sealed envelope, by hand to the offices of the addressee(s) named herein. [ } BY OVERNIGHT DELIVERY:I am “readily familiar” with this firm’s practice of collection and processing correspondencefor overnight delivery. Under that practice, overnight packages are enclosed in a sealed envelope with a packingslip attached thereto fully prepaid. The packages are picked up bythe carrier at our offices or delivered by ouroffice to a designated collection site. I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. Executed this December 21, 2011, at Los Angelex Navid Zivari Type or Print Name Ciisaature Page 1 PROOFOF SERVICE I N I T I A T I V E L E G A L G R O U P A P C 1 8 0 0 C E N T U R Y P A R K E A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 9 0 0 6 7 o O f o N N A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 David Faustman Yesenia Gallegos FOX ROTHSCHILD LLP SERVICE LIST 1800 Century Park East, Suite 300 Los Angeles, CA 90067 Page ] PROOFOF SERVICE SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES DATE: 02/07/12 DEPT. 24 HONORABLE Robert L. Hess JuDGE|| G. Charles DE PUTY CLERK HONORABLE JUDGE PRO TEM ELECTRO NIC RECORDING MONITOR B. Bell c/A DeputySheriff] C. Crawley Reporter 8:33 am|BC356521 . ’ Plaintiff Raul Perez (x) Counsel Ryan Wu (x) ARSHAVIR ISKANIAN Glenn Danas (x ) vs _ Defendant CLS TRANSPORTATION LOS ANGELES Counsel David Faustman (x) R/T BC381065; BC473931 NATURE OF PROCEEDINGS: MOTION TO CONSOLIDATE AND ARBITRATION AND CLAFIFICATION OF ORDER. The cause is called for hearing. The motion to compel specific performance of the arb- itration agreement is granted. The motion to consol - idate the arbitrations is denied without prejudice to renewal in arbitration.’ The agreement is governed by the FAA agreement. The application for barring individuals from asserting claims which were barred by the statute of limitations is withdrawn be defendant. That application should be presented to the arbitrator in the first instance. Paragraph 16(d) of the agreement provides that arbi- trators will be selected from one of four specified providors. Plaintiff's have chosen ADR Services, which has a selection procedure for arbitrators. The Court ig not persuaded that selection of arbitrators has proceeded to impasse, and therefore declined to select an arbitrator for any purpose. The Court has an impression that to some extent the issues presented here are the result of posturing by one or bioth parties. The Court further has the impression that neither side wishes to maximize the duration, complexity or exposure of tha arbitration process. The Court suggests that a meet and confer MINUTES ENTERED Page 1 of 2 DEPT. 24 02/07/12 COUNTY CLERK SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGEL ES DATE: 02/07/12 DEPT. 24 HONORABLE Robert L. Hess yupGEl| G. Charles DEPUTY CLERK HONORABLE JUDGE PRO TEM ELECTRONIC RECORDING MONITOR B. Bell C/A Deputy Sheriff] C. Crawley Reporter 8:33 am|]BC356521 Plai ntiff Raul Perez (x) Counset Ryan Wu (x) ARSHAVIR ISKANIAN Glenn Danas (x) VS Defendant CLS TRANSPORTATION LOS ANGELES — Counsel David Faustman (x) R/T BC381065; BC473931 NATURE OF PROCEEDINGS: between the parties, perhaps with the a ssistance of the first arbitrator selected, could re sult in agree- ment with respect to the procedures to be fol lowed which are based on practical realities. MINUTES ENTERED Page 2 of 2 DEPT. 24 02/07/12 COUNTY CLERK IN IT IA TI VE L E G A L . G R O U P A P G 1 8 0 0 C E N T U R Y P A R K K A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 9 0 0 6 7 Co nf or me d Co py u o S e N N DB D A f h W D N Y N Y N O N O N H N H NH N K H H P H O = e B e w e eR e w y e e e e a o N Y D n H F F F W D N O K F D O O O O H H Q W B A B P W D PN Y S Y C O — Raul Perez (SBN 174687) RPerez@lnitiativeLegal.com Melissa Grant (SBN 205633) MGrant@InitiativeLegal.com Glenn A. Danas (SBN 270317) GDanas@lnitiativeLegal.com Initiative Legal Group APC 1800 Century Park East, 2nd Floor Los Angeles, California 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 Attorneys for Plaintiffs CONFORME suredIGINALin1GOP¥R COURTOFL Or CA.LOSANGEFORNIA AUG 31 2012 ive Officer/Clerk Pristina Gajalve eputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES GREG KEMPLER,et al., Plaintiffs, vs. CLS TRANSPORTATION LOS ANGELESLLC,a Delaware corporation; and DOES1 through 10, inclusive, Defendants. > Case No.: BC473931 [Assigned to Hon. Robert L. Hess; Related to BC356521] PLAINTIFFS’ MOTION FOR AN ORDER DEEMING DEFENDANT CLS TO HAVE WAIVED ARBITRATION Date: Time: Place: September 25, 2012 8:30 a.m. Department 24 Complaint Filed: November 18, 2011 MOTION FOR AN ORDER DEEMING DEFENDANTCLS TO HAVE WAIVED ARBITRATION IN IT IA TI VE L E G A L G R O U P A P C 18 00 C E N T U R Y P A R K E A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 90 06 7 o O O o N N D O W O B e | W N K B Y e M N Y N Y N O N Y N R D R D R m e e e a o 4 D D W F F B W N b K- § S T O D O e I D D H B Ww W B H = O C TABLE OF CONTENTS I. INTRODUCTION......c.ecscscessssseeecssesssscssseensessssssssussssssrssussesesacrassassassesrecetssesasesusensesees. 1 I. FACTS AND PROCEDURE. ...0...csescssssssesssseessssessesscssessucsserscesssssseassessucsecssssessuseessscesees 2 A. Inception OfThe Action ............ccccsscsssssssssssesssstssveccessscsstsasssscsssesesesarcaseeceeeeeeees2 B. CLS’s History OfDelay Tactics 00.00... cccccsssessssesssesssscsssssassesesesecassesesssececeseseeeees 3 Cc. CLS’s Most Recent Improper Delay Tactics ............s.ccssccssssssssessecesecesessoseeesecene 5 TIT. = ARGUMENT.......cesssssescsssessscsserssencsassssesessnecossusssssucssscssussuscasesssussassassussissssesuscsccescececce6 A. Recent Case Law Clarifies That CLS Has Waived Arbitration .....c.cccccccscsosescoe-. 6 TV. — CONCLUSIONoo.eccssecseesessssosssssscseceusseesssnsscsessussssensesussussusasssssussesuesecesssstusaseceseceecees 8 Pagei MOTION FOR AN ORDERDEEMING CLS To HAVE WAIVED ARBITRATION IN IT IA TI VE L E G A L G R O U P A P C 18 00 C E N T U R Y P A R K E A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 90 06 7 oO o n DB A UW F& F Ww N Y y o N O N O NH N N O V N N O N N m w m m l e t a o n N D N A N S F W D N U E hl Cl CO Ul Ul Ul UC Ol Ul Ul CU CO RM OU NC CU CU CN OU R O C U R l U C U M O O TABLE OF AUTHORITIES STATUTES Cinel v. Barna, 206 Cal. App. 4th 1383 (May 18, 2012)...eeecesesetecceccecssecessseeseeseee 6, 7,8 Gentry v. Superior Court, 42 Cal. 4th 443 (2007)..........ccsssscecesssccerecsesessetsecesaneacescesesteeasensers 2 St. Agnes Medical Center v. PacifiCare OfCalifornia, 31 Cal. 4th 1187 (2003) .............sccsceee 6 CASES AT&TMobility LLC v. Concepcion, 131 S. Ct. 1740 (2011)....ccsscssccssssssscesssssessscesssssssessessecoves2 Sink vy. Aden Enterprises, Inc., 352 F.3d 1197 (9th Cir. 2003)..........:esccccesssseseseseceseesessseeseeneeee 7 OTHER AUTHORITIES 9 U.S.C. § 1 et seg. (Arb. Act (FAA)).....eeesessecceececsnersecensesesessasseccasecsnsateasessesessceseeensasenesess 2 Page ii MOTION FOR AN ORDER DEEMING CLS TO HAVE WAIVED ARBITRATION IN IT IA TI VE L E G A L G R O U P A P C 1 8 0 0 C E N T U R Y P A R K E A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 9 0 0 6 7 O o S N B A O A P F W D N H = N O N O N O D P Y B Y N N O B w B e B e B e B e B R R e S e e e B P u N R R R E S Y F B G e D A D E a n g e s I INTRODUCTION CLShas repudiated the arbitration agreements into which it entered with 19 of the Plaintiffs. Without any contractual, statutory or equitable basis for doing so, CLS has refused to participate in arbitration with these Plaintiffs and has instructed the American Arbitration Association (“AAA”) not to proceed with arbitration. As to these 19 Plaintiffs, all arbitration filing fees have been paid and a mutually acceptable arbitrator has been identified. For these 19 individuals, nothing further remains to be done before the commencedarbitration proceeds—theyare prepared to begin arbitration immediately. However, in what has become a year-long campaign clearly designed to delay the proceedings indefinitely, CLS has refused to proceed with arbitration for the 19 Plaintiffs until arbitrators are selected for the other claimants. There is simply no legal or logical basis for doing so. For over a year (arbitration demands were first filed in August 2011), Plaintiffs have attemptedto arbitrate their claims against CLS, only to be thwarted at every turn. CLS has relied on an ever-changing array of excuses for delaying the proceedings. CLS hasalternately arguedthat all arbitrators had to be selected before it would pay its share of the filing fees, that the arbitrations had to be consolidated before it would payits share offees, that arbitration should not proceed until Plaintiffs prove they are represented by counsel, that Plaintiffs should prove that they are aware of the arbitration claims, and that arbitration could not proceed while settlement offers are pending. Now, CLS arguesthat the 19 Plaintiffs who are readyto arbitrate, as to whom all fees have been paid and arbitrators have been selected, should havetheir arbitration claims delayed further until all arbitrators are selected for all otherclaimants.” The 19 Plaintiffs have repeatedly been denied a forum in which to vindicate their rights. Indeed, CLS has made a mockery ofthe arbitration process by attempting to ' MovingPlaintiffs are 19 of the 63 Named Plaintiffs. The moving Plaintiffs are identified in paragraph 14 of the Declaration of Raul Perez. Further, the 19 Plaintiffs are periodically referred to as “Claimants”. * Aithough Plaintiffs wished to conductarbitration before separate arbitrators, based on the Court’s feedback, Plaintiffs proposed a much more limited numberof arbitrators to preside over their individual arbitrations. Page 1] MOTION FOR AN ORDER DEEMING DEFENDANT CLS TO HAVE WAIVED ARBITRATION I N I T I A T I V E L E G A L G R O U P A P C 18 00 CE NT UR Y PA RK EA ST , SE CO ND FL OO R, LO S AN GE LE S, CA LI FO RN IA 90 06 7 o O C O S S BN E T H e e B D L e N N B H N Y N O D Y R O N R N R R D m e e t s Q o N N DB D WN W P P W Y H N K § G D O o OH O HK D D R H W B R H D P H & 6 unilaterally dictate how the arbitrations should be handled, and whenit does not getits way,it forces AAAto stop the proceedings. The California Court of Appeal recently clarified that this exact type of conduct can waive arbitration--evenafter arbitration has been compelled. Basedonthis recent controlling authority, CLS has waived arbitration as to the 19 Plaintiffs whohave been ready to commencearbitration for over a year. Plaintiffs therefore respectfully requestthat the Court issue an order deeming CLS having waived arbitration as to these 19 Plaintiffs. I. FACTS AND PROCEDURE A. Inception Of The Action Plaintiffs previously belongedto a certified class in Iskanian v. CLS Transportation Los Angeles LLC, Los Angeles Superior Court Case No. BC356521, which was filed on August 4, 2006 and which asserted class-wide wage and hourclaimsagainst CLS,the largest provider of chauffeured limousineservices in California. (Declaration of Raul Perez [“Perez Decl.”] { 2.) CLS moved to compelindividual contractual arbitration; the motion was granted on March 13, 2007andtheplaintiffs appealed on May 11, 2007. (id. 49 3-5.) The California Supreme Court decided Gentry v. Superior Court, 42 Cal. 4th 443 (2007) while the appeal was pending, and the Court ofAppeal reversed and remanded on May 27, 2008 with instructions to “apply Gentry to the factual record.” (/d. f{ 6-7.) However, on remand, CLS abandoned its bid for arbitration and proceededto litigate the matter as a class action. (/d. 8.) The class in Iskanian wascertified on August 24, 2009, after which the parties continuedto litigate on a class-widebasis. (/d. J] 9-10.) The court seta trial for August 6, 2011. (/d.) On May16, 2011, CLS movedfor renewal of its prior motion to compelarbitration under AT&TMobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) (“Concepcion”), which purportedly held, by analogy, that the Federal Arbitration Act (“FAA”) pre-empted Gentry. (Perez Decl. 11.) The Court granted CLS’s motion on June 14, 2011, compelling individual arbitration and dismissing the class claims. (Jd. § 12.) Iskanian appealed. (Id. { 13.) On June 4, 2012 the Court ofAppealaffirmed the Court’s order. The Iskanian opinionis currently the subject of a Petition for Review to the California Supreme Court. (/d.) Page 2 MOTION FORAN ORDER DEEMING DEFENDANT CLS TO HAVE WAIVED ARBITRATION IN IT IA TI VE L E G A L G R O U P A P C 13 00 C E N T U R Y P A R K E A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 90 06 7 u o c o N N DW N A W F F W Y H N = N H N O D N N Y N Y N B N N R m i w m m e t t a o s s D N W N F F W N H - § F D O O W W N Q WD B W A B P W W H O F& F C O B. CLS’s History OfDelay Tactics In August 2011, 63 former Iskanian class members demandedindividual arbitration. (Perez Decl. | 14.) Beginning in August 2011, these former class members(“Claimants”) filed claims with ADR Services, which the Agreementidentifies as a mutually acceptable arbitration provider. (Jd. { 15.) However, CLS rejected these demandson the groundthatthe Agreementrequires arbitration with AAA. (Id. ] 16.) To avoid furtherdelay, the 63 Claimants agreed to arbitrate before AAA and tendered $175 each, their shares of the arbitration fees, to AAA. (Id. ] 17.) But CLSrefused to payits share ofthe filing fees owed to AAA ($925) for each arbitration, a material breach ofthe Agreement. (Id. J 18-19.) CLSresorted to a numberofcontradictory excusesto justify its refusal to pay the 63 Claimants’ filing fees, including that Claimants’ attorneys “did not represent them”andthat the arbitrations were stayed pending appeal. (Perez Decl. J] 18-20.) CLSthenfiled a motion to consolidate the arbitrations and appoint an arbitrator, arguing that individual arbitrations would be too expensive and inefficient and that the parties had reached an impasse over the selection of an arbitrator. (/d.) CLS’s stated rationale departed fromits priorlitigation position, which had beenthat the Court muststrictly enforce the terms of the Agreementand compelindividual arbitration. (/d.) Due to CLS’srefusal to pay arbitration fees, AAA closed all 63 ofthe files and refunded Plaintiffs’ filing fees. Id.) The Claimants also went back to the Court, filing a motion to compel specific performance oftheir arbitration agreements with CLS, including that CLS honorits obligation to payits share of eachfiling fee. (Id.) In its February 7, 2012 order, the Court denied CLS’s motion and granted the 63 Claimants’ motion to compelspecific performanceofthe Agreement. (Perez Decl. 21.) Each of the 63 Claimants again tenderedhis or her filing fee to AAA. (Id.) CLS, however, refused to comply with this Court’s order (as well as with AAA’s repeated demands) and again declined to pay the requiredarbitration fees. (Id.) CLS’s excuse was the sameoneit had unsuccessfully advanced earlier—thatit should not haveto payits share ofthe filing fees until the parties agreed to a single arbitrator. (/d.) CLS’s position directly contravened both the AAA arbitrator selection rules, which require paymentoffees prior to the selection of an Page 3 MOTION FOR AN ORDER DEEMING DEFENDANTCLS TO HAVE WAIVED ARBITRATION IN IT IA TI VE L E G A L G R O U P A P C 3 8 0 0 C E N T U R Y P A R K E A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 9 0 0 6 7 o O S& F J N D H A F B W D NP N & N O p o B O N O N Y NB O N O H O N O §— & S& S S e = = = e e i e S e e e o N ON O A N F e B W N D E H O O O U N D L U N U C U l C U l N U R l U h U L U L U L N U r e CO O arbitrator, as well as the Court’s admonition that the parties compromise on the number of arbitrators. (/d. 22.) Once again AAA rebuked CLS,pointing out to CLSthat it would have to pay a fee on behalf of each ofthe 63 Plaintiffs even if only one arbitrator wereselected. (id. § 23.) CLS then immediately shifted its position, refusing to pay on the basis of a contention it had previously asserted and then abandoned,thatit first needed “proof” that Initiative Legal Group (“ILG”) “actually represent[s] these 63 individuals” and that the individuals were awareofthe arbitration cases. (Perez Decl. § 23.) CLS also questioned the 63 Claimants’ compliance with the AAA’sfiling requirements. (Id.) However, each of these rehashed doubts was quickly and easily allayed. AAA confirmed to CLSthatthe Plaintiffs had satisfied their filing requirements. (Id. 25.) Further, although the scope of ILG’s representationofits clients was clearly protected by attorney-client privilege, ILG had 63 individual retainer agreements with the Claimants, ILG is listed with AAA as the contact for each ofthe 63 Claimants, and each of the 63 Claimants hadpaid hisarbitration fee. (Jd. J 24.) CLS then sought a further extension of the deadline to pay thearbitration fees on the basis of a written settlement demandto each of the 63 Claimants. (Perez Decl. J 26.) Although AAA had been willing to provide a first extension oftime, AAA denied CLS a second extension. (/d.) AAA explained that CLS’s purported worry was misplaced, because if any claimants settled within 30 days ofpayment and before appointmentofan arbitrator, AAA would refund the arbitration fee. (/d.) Nonetheless, CLS refused to pay, instead on March 23, 2012 filing a second motionto stay the arbitration and appoint an arbitrator, which CLS conceded was essentially a renewal ofits prior motion the Court had already denied. (id.{ 27.) AAA onceagain closed all 63 files and refunded Claimantstheirarbitration fees. (d.{ 28.) In response, on April 9, 2012, Plaintiffs served a motion for sanctions pursuantto the Code of Civil Procedure, section 128.7 on the basis that CLS’s second motion to stay was baseless and frivolous. (Perez Decl. 4 19.) During the 21-day safe harbor period, on April 203 2012, CLS withdrew its motion without prejudice and agreed to pay the AAAfiling fees for Page 4 MOTION FOR AN ORDER DEEMING DEFENDANT CLS TO HAVE WAIVED ARBITRATION IN IT IA TI VE L E G A L G R O U P A P G 18 00 C E N T U R Y P A R K EA ST , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 90 06 7 o o e N A A F F W Y Y Y = m M N N O N N N K N Y N T F S F F r S F F P S F F D S s S P N R F F B B S f F S C HB O e I D A H F Y H Y - & each plaintiff. (Id. ]30.) CLS finally recognizedit faced significant sanctionsfor filing another motion seeking the samerelief that had been rejected by this Court ba ck in February 2012. Cd.) Cc. CLS’s Most Recent Improper Delay Tactics On June 13, 2012, the Court, in an informal advisory opinion, resolved CLS’s m otion to stay the arbitration and appointa single arbitrator by recommendingthat the p arties meet and confer and strike a balance between the competing proposals. (/d. { 32.) D espite the fact that the Claimants each had an undeniable right underthe arbitration agreement s, the Claimants began to negotiate with CLS regarding the selection of arbitrators, with Claimants making numerous concessions as suggested by the Court. (Id.) Specifically, Pl aintiffs backed off of their earlier position for 63 separate arbitrators, and instead agreed to narrow the proceedingsto ten arbitrators. (Id. {J 32-33.) CLS, however, refused Claimants ’ proposal andinsisted on only four arbitrators. (/d.) Nonetheless, the parties have come to an agreement and haveselected the arbitrators for 19 ofthe 63 Claimants. (Perez Decl. § 34.) As to each of these 19 Claimants ,all filing fees have beenpaid, each arbitrator has been mutually approved, and each Claima ntis ready to proceed with his claims. (Id.) CLS, however, has again refused to proceed wit h these arbitrations—and has demanded that AAA delay all proceedings—until four arbitrat ors who CLS contendswill handle all 63 Claimants’ disputes are selected. (Jd. { 38.) Once again, CLSinsists that the arbitrations be conducted underits terms and conditionsornot atall. Moreover,there is no contractual, statutory or equitable basis for continuing to de prive these plaintiffs of a forum in which to resolve their claims. The 19 individual Claimants who have agreedto the arbitrators proposed by CLSar e: William Baker, Kung Ming Chang, Miguel De La Mora, Johnnie Evans, Raul Fue ntes, Steve Maynard,Peter Paull, Roger Perry, Myron Rogan, Masood Shafii, Karim Sharif f, and Carl Swartz. Each ofwhom has agreed to CLS’sselection of Enrique Romeroto serve as the arbitrator for their individual cases. (Perez Decl. { 36.) Kenny Cheng and Angelo Garcia each have agreed to CLS’s selection of Kevin Page 5 MOTION FOR AN ORDERDEEMINGDEFENDANT CLS TOHAVE WAIVED ARBITRATION IN IT IA TI VE L E G A L G R O U P A P C _ 1 8 0 0 C E N T U R Y P A R K E A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 9 0 0 6 7 O o S& S N D O H R& R W D N H N N M H N N O N O N N N O R O O m e e t B N R R R B B F B S G e W A B s R a n H e e S s Murphyto serve as the arbitrator for their individual cases. (Perez Decl. | 38.) Karen Bailey, James Dension, Carl Mueller, James Richmond, and Bennett Sloan have each agreed to CLS’s selection of William Stein to serve as the arbitrator for their individual cases. (Perez Decl. { 38.) i. ARGUMENT A. Recent Case Law Clarifies That CLS Has Waived Arbitration It is now clear that a party can waive the right to proceed in arbitration even after arbitration has been compelled. In Cinel v. Barna, 206 Cal. App. 4th 1383 (May 18, 2012), the trial court had granted a motion brought by six defendants to compel arbitration pursuant to a written arbitration agreement. Jd. at 1386. Ofthe six defendants, only two (defendants Barna and Christopher) paid their share of the AAA’sfiling fees. The arbitrators to which the parties had already agreed “suggested the paying parties agree to pay a pro rata share of the deposits of the delinquentparties.” Jd. at 1387. Barna and Christopher declined to pay, and AAA terminated the arbitration. Jd. Thetrial court reasserted jurisdiction over the matter and set the case for trial. Id. at 1387-88. The plaintiffproposed that the two paying defendants advancethe fees of the four nonpaying defendants on a pro rata basis, but both Barna and Christopher declined this offer. Jd. at 1388. The two paying defendants argued both that the trial court had already found there to be an enforceable arbitration agreement and that the plaintiff, a billionaire, should contribute towards the unpaid fees. Jd. Thetrial court denied the defendants’ motion to compel Cinel to return to arbitration. The Court of Appeal held that the “defendants have waivedtheir right to arbitrate by refusing to reach a resolution with [the plaintiff] on the fee dispute.” Jd. at 1389. The court explained that “Barna cannot use the nonpaying parties as a proxy to extort paymentofthe entire amountofthe nonpaying parties’ fees from [the plaintiff], who did not demand arbitration in thefirst place.” Jd. at 1391. The Court further explainedthat, in the context of arbitration, “waiver arises from a party’s failure to perform an actit is required to perform,” and the party’s intent to waive arbitration is irrelevant. /d. at 1289 (citing St. Agnes Medical Center v. PacifiCare OfCalifornia, 31 Cal. 4th 1187 (2003)). The court then concluded that Page 6 MOTION FOR AN ORDER DEEMING DEFENDANT CLS TO HAVE WAIVED ARBITRATION IN IT IA TI VE L E G A L G R O U P A P C 18 00 C E N T U R Y P A R K E A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 90 06 7 o oO o N N N H 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the parties had behaved in a mannerinconsistent with an intentto arbitrate. Id. at 1389-90. In particular, the failure to pay the AAA’s fees constituted a repudiation of the arbitration agreement. Jd. at 1390. The Cinel court relied upon and expanded the Ninth Circuit’s holding in Sink v. Aden Enterprises, Inc., 352 F.3d 1197 (9th Cir. 2003) in reaching this conclusion. Cinel points to Sink as “illustrative of the infinite loop this case will enter if we endorse Barna’s arguments.” Id. at 1391. In Sink, the plaintiff had sued his employer, and the matter was ordered to arbitration pursuantto an arbitration agreement in the parties’ employmentcontract. Id. The employer was obligated, but refused, to pay the arbitration costs, and the arbitrator cancelled the arbitration for nonpayment of fees. Jd. Theplaintiff obtained a default from thearbitrator, and sought entry of default judgmentin the trial court. Jd. The employer then advised the court that it had secured the money neededto fundthe arbitration and requested the court refer the action back to arbitration. Jd. The court refused, finding the employer had waived its right to proceedin arbitration andset the matter fortrial. /d. The court explained that allowing the employer to return to arbitration “would allow a party refusing to cooperate with arbitration to indefinitely postponelitigation.” Jd. The Cinel court too refused “to endorse such a result.” Id. CLS’s behavior demonstrates vividly the “infinite loop” that was the focus of the Cinel court’s reasoning. In fact, CLS’s dilatory conduct here has been far more egregious than that of the non-paying defendants in Cinel. While Cinel simply involved the defendants’ refusal to pay other defendants’ filing fees, CLS has presented Plaintiffs with an ever-changingtarget, repeatedly inventing new reasons not to proceed with arbitration. CLS has attempted to delay Plaintiffs’ claimsindefinitely, repeatedly citing new andbaseless reasons whyarbitration cannot continue. e CLSfirst contended that, despite the plain languageofthe arbitration agreements, AAA rather than ADRServices,be the arbitration provider. e CLSthen argued that the selection of arbitrators must be decidedprior to the paymentoffees, despite the fact that the AAA rulesexpressly hold otherwise. Page 7 MOTION FOR AN ORDER DEEMING DEFENDANT CLS TOHAVE WAIVED ARBITRATION IN IT IA TI VE L E G A L . G R O U P A P C 38 00 C E N T U R Y P A R K E A S T , S E C O N D K L O O R , L O S A N G E L E S , C A L I F O R N I A 90 06 7 i o C o N W O W N F& F W Y N H = N N N N N N N N o n N — _ o t _ — _ _ _ — _ _ e o ~ ] n N i n > w e bh o — _ o S o O o o ~ ] n N W N a S w o N — Q . e CLSthen arguedthatthe arbitrations should be consolidated before the paymentof fees. e CLS next expressed its purported concern that ILG did notrepresentthe Claimants. ® CLS has also arguedthatit should be able to obtain proofthat the Plaintiffs are “aware”ofthe arbitration claims (despite having paid their share of the filing fees). e CLSthen contendedthat arbitration should not continue while settlement offers are pending, despite AAA’s assurances that they would be refunded any feesin the event of settlement. e Now, CLS argues that the 19 Claimants whoare ready to arbitrate, as to whom all fees have been paid andall arbitrators have been selected, should havetheir arbitration claims delayed further until all arbitrators are selected for all other plaintiffs. Thereis no contractual, statutory or equitable basis for CLS’slatest position. The identity and numberofarbitrators selected as to other plaintiffs is irrelevant as to these 19 Claimants. CLS has shown time andagain thatit will take evenfrivolous,legally unsupportable positions to deprive Plaintiffs of their access to a forum—any forum—in which their claims may be adjudicated. If the Court simply compels the parties back to arbitration, CLSwill have succeeded andthe“infinite loop” of CLS’s recalcitrance and ensuing motion practice will continue. Pursuantto Cinel, by refusing to proceed with arbitration as to 19 Claimants whoare readyandable to proceed, and without any legaljustification for doingso, CLS has breached the arbitration agreements into which it entered with these 19 Plaintiffs. CLS has therefore waivedits right to proceed with arbitration as to these 19 Plaintiffs. IV. CONCLUSION Forthe foregoing reasons, Plaintiffs respectfully request that the Court issue an order deeming Defendant CLSto have waived arbitration as to the 19 Plaintiffs. Page 8 MOTION FOR AN ORDER DEEMING DEFENDANTCLSTOHAVE WAIVED ARBITRATION IN IT IA TI VE L E G A L G R O U P A P C 1 8 0 0 C E N T U R Y P A R K F A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 9 0 0 6 7 N i o w o n N D n U N F F W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: August 31, 2012 Respectfully submitted, Initiative Legal Group APC By: —”''072>__ Raul Perez Melissa Grant Suzy E. Lee Attomeysfor Plaintiff Greg Kempler,etal. Page 9 MOTION FOR AN ORDERDEEMING DEFENDANT CLS TO HAVE WAIVED ARBITRATION C o n f o r m e d C o p y I N I T I A T I V E L E G A L G R O U P A P C 18 00 C E N T U R Y P A R K E A S T , S E C O N D F L O O R L O S A N G E L E S , C A L I F O R N I A 9 0 0 6 7 o o S N N N W A B S S o o o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Raul Perez (SBN 174687) RPerez@lInitiativeLegal.com Melissa Grant (SBN 205633) MGrant@lInitiativeLegal.com Suzy E. Lee (SBN 271120) SuzyLee@InitiativeLegal.com Initiative Legal Group APC 1800 Century Park East, 2nd Floor Los Angeles, California 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 Attorneys for Plaintiffs CONFORMEDcopy OnionSUPERIORCoUKYree:FILEDva NTYOF 1,LOSANGELES AUG 312012 JohnA. Clarke, Exec tive Officer/Clerk BY Pssitesnad) i, ue bee) Cristina Grijalva Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES GREG KEMPLER,et al., Plaintiffs, VS. CLS TRANSPORTATION LOS ANGELES LLC, a Delaware corporation; and DOES| through 10, inclusive, Defendants. Case No.: BC473931 {Assigned to Hon. Robert L. Hess; Related to BC356521 DECLARATION OF RAUL PEREZ IN SUPPORT OF PLAINTIFFS’ MOTION FOR AN ORDER DEEMING DEFENDANT CLS TO HAVE WAIVED ARBITRATION AS TO 19 PLAINTIFFS Date: September25, 2012 Time: 8:30 a.m. Place: Department 24 Complaint Filed: November 18, 2011 DECLARATION OF RAUL PEREZ IN SUPPORT OF MOTION FOR AN ORDER DEEMING CLS TO HAVE WAIVED ARBITRATION IN IT IA TI VE L E G A L G R O U P A P C 18 00 C E N T U R Y P A R K EA ST , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 90 06 7 B e Ww W NW N o O C O N N H D W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF RAUL PEREZ I, Raul Perez, declare: 1. I am an attomey admitted to the Bar of the State of California, I am an attomeyat Initiative Legal Group APC (“ILG”), counsel of record for the named Plaintiffs (“Plaintiffs”) in this action,as set forth below in paragraph 14. I make this declaration in support ofPlaintiffs’ Motion for An Order Deeming Defendant CLS to have Waived Arbitration as to 19 Plaintiffs. Unless the context indicates otherwise, I have personal knowledgeofthe following facts, and if called as a witness, I could and would testify competently to them. 2. On August 4, 2006, PlaintiffArshavir Iskanian (“Iskanian”) brought wage and hour claims against Defendant CLS Transportation Los Angeles LLC (“CLS”or “Defendant”), on behalf ofhimselfand a class ofcurrently and formerly employed CLS limousine drivers. 3. On February 9, 2007, Defendant moved for an order compelling individual arbitration, a true and correct copy ofwhichis attached as Exhibit A. Based on information and belief, not all Plaintiffs signed the Agreement, but paragraph 17 ofthe Arbitration Agreementstates that the terms ofthe Agreementare binding on all employeesirrespective ofsigning. 4. On March 13, 2007, the skanian Court granted Defendant’s motionforan order compelling individual arbitration. 5. On May 11, 2007, Plaintiff immediately appealed the Jskanian Court’s decision in the California Court ofAppeal, Second Appellate District, Case No. B198999. 6. While the appeal was pending, the California Supreme Court issued Gentry v. Superior Court, 42 Cal. 4th 443 (2007), which promulgateda fact-intensive test to determine whethera class action waiveris enforceable. 7. On May 27, 2008, the Court ofAppeal reversed and remanded the order compelling arbitration with specific instructions for the /skaniantrial court to apply the new Gentry testto the record. 8. On remand, CLS proceeded tolitigate the matter on a class-widebasis. 9. On August 24, 2009,the Jskanian trial court granted Plaintiff's contested class action motion. Page | DECLARATION OF RAUL PEREZ IN SUPPORT OF MOTION FOR AN ORDER DEEMING CLS TO HAVE WAIVED ARBITRATION IN IT IA TI VE L E G A L G R O U P A P C 18 00 C E N T U R Y P A R K E A S T . S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N L A 9 0 0 6 7 O o O o S D 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. Theparties continuedto litigate on a class-widebasis, with a trial date set for August 6, 2011. iI. On May16, 2011, CLS moved for renewalofits prior motion to compelarbitration on the basis that, underAT&TMobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), the Federal Arbitration Act (“FAA”) pre-empted Gentry. 12. On June 14, 2011, the Court granted Defendant’s motion and issued an order dismissing class claims and compelling Iskanian to individual arbitration. 13. Iskanian appealed. The Jskanian opinionis currently the subject of a Petition for Review to the California Supreme Court. 14, Beginning August 2011, 63 former Iskanian class members Greg Kempler, Adrien Warren, Anantray Sanathara, Angelo Garcia, Arthur Post, Avaavau Toailoa, Belinda Washington, Bennett Sloan, Bruce Gold, Carl Mueller, Carl Swartz, Cassandra Lindsey, Cleophus Collins, Daniel Araya, Danie] Rogers Millington, Jr., Darold Caldwell, David Baranco, David Montoya, Dawn Bingham, Edward Smith, Edwin Garcia, Elijha Norton, Flavio Silva, Frank G. Dubuy, Gerald Griffin, Glen Alston, Igor Kroo, James C. Denison, James Richmond, James Sterling, Jerry Boyd, Jiro Fumoto, Johnnie Evans, Jonathon Scott, Julius Funes, Karen Bailey, Karim Sharif, Kenny Cheng, Kung Ming Chang, Lamont Crawford, Leroy Clark, Luis Eamshaw, Marcial Sazo, Marquel Rose, Masood Shafii, Matthew Loatman, Miguel De La Mora, Myron Rogan, Neil Ben Yair, Pater Paull, Patrick Cooley, Rafael Candelaria, Raul Fuentes, Reginald Colwell, Robert Olmedo, Roger Perry, Scott Sullivan, Steve Maynard, Susan Stellman, Thomas Martin, Wayne Ikner, William Banker, and William Pinkerton retained ILG to representthem in their efforts. Attorney-Client Agreements weresigned by eachPlaintiff beginning in July 2011 to early September 2011. Each Plaintiff soughtto resolvehis or her dispute through individual arbitration with CLSinlight ofthe order compellingarbitration in /skanian. 15. Beginning in August 2011, each Plaintiff filed a demand for arbitration with ADR Services, Inc., which was namedin the Agreementas a mutually accepted provider. 16. CLSrejected these 63 demands on the ground that the Agreementrequires arbitration with the American Arbitration Association (“AAA”). A true and correct of Page 2 DECLARATION OF RAUL PEREZ IN SUPPORT OF MOTION FOR AN ORDER DEEMING CLS TO HAVE WAIVED ARBITRATION IN IT IA TI VE L E G A L G R O U P A P C 18 00 C E N T U R Y P A R K EA ST , S E C O N D F L O O R . 1 . 0 8 A N G E L E S , C A L I F O R N I A 90 06 7 o fe o N W N 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 correspondence dated September 19, 2011 from Yesenia Gallegos, counsel for Defendant CLS to Terry Shea, Arbitration Coordinator for ADR Services,Inc., in which CLS “rejected” the August 2011 arbitration demands,is attached as Exhibit B. 17. Beginning in September 2011, the Plaintiffs agreed to arbitrate before the AAA to avoid further delay and expense. Each Plaintiff tendered his or her $175.00 share ofthe arbitration filing fee. 18. CLS refusedto payits share ofthefiling fees owed to the AAA ($925for each case). CLSresorted to a numberofcontradictory excuses tojustify its refusal to pay the 63filing fees, includingthat Plaintiffs’ attorneys did not represent them andthat the arbitrations were stayed pending appeal. CLSthenfiled a motion to consolidate the arbitrations and appoint an arbitrator, arguingthat individual arbitrations would be too expensiveand inefficient andthat the parties had reached an impasseovertheselection ofan arbitrator. CLS’s newlystated rationale departed from its prior position, whenit had argued that the Court must strictly enforce the terms of the Agreement and compelindividual arbitration. 19. A trve andcorrect copy of an October 10, 2011 letter from Ms. Gallegos toAdam Shoneck,Intake Specialist for the AAA,refusingto paythefiling fee,is attached as Exhibit C. 20. Due to CLS’s refusal to pay arbitration fees, AAA closed all 63 ofthe arbitrations and refundedPlaintiffs’ filing fees. CLSfiled a motionin the /skanian action to consolidate all 63 arbitrations and to appoint an arbitrator. A true and correct copy of an October 20, 2011 response from Shoneck to me and CLS’s counsel David Faustman is attached as Exhibit D. 21. After the Court’s order of February 7, 2012 denying CLS’s motion and granting Plaintiffs’ motion to compelspecific performanceofthe arbitration agreement, Plaintiffs again tendered 63filing fees of $175. CLS, however, refused to comply with the Court’s order (as well as with the AAA’s repeated demands) and again declinedto pay the required arbitration fees. 22. CLS’s initial excuse for continuingto refuse to pay its share ofthe arbitration fees was the same one it had unsuccessfully advanced earlier—thatit should not haveto pay until the parties agreed to an arbitrator. 23. On March 2, 2012, CLS wrote to the AAA airing the concernsstatedin its motion to Page 3 DECLARATION OF RAUL PEREZ IN SUPPORT OF MOTION FOR AN ORDER DEEMING CLS TO HAVE WAIVED ARBITRATION IN IT IA TI VE L E G A L . G R O U P A P C 18 00 C E N T U R Y P A R K E A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L J P O R N I A 9 9 0 6 7 S P O o o 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stay the arbitration and appointan arbitrator, primarily, that only one arbitrator be selected and that CLS receive some assurancethat ILG represents each ofthe Plaintiffs. CLS also questioned Plaintiffs’ compliance with the AAA filing requirements. Attached as Exhibit E is a true and correct copy ofthe letter dated March 2, 2012 from Mr. Faustman to the AAA. 24. — ILG has 63 individual retainer agreements with the Plaintiffs, ILG islisted with the AAA as the contact for each ofthe 63 Plaintiffs, and each of the 63 Plaintiffs has paid his or her arbitration fee. 25, On March8, 2012, the AAA confirmedthat the Plaintiffs had satisfied their filing requirements. AAA also rejected CLS’s attempts to hingeits refusal to pay on a disagreement over the numberofarbitrators in explaining to CLSthat it would haveto pay a fee on behalfof each of the 63 claimants evenonly onearbitrator is selected. Attached as Exhibit F is a true and correct copy ofthe letter dated March 8, 2012 from the AAA to meand to Mr. Faustman. 26. | The AAA demanded payment by CLS on March 14, 2012, refusing a second extension oftime to pay based on settlementoffers but agreeingto the potential for a refund ofthe arbitration fees should any mattersettle within 30 days prior to appointmentofan arbitrator. Attached as Exhibit G is a true and correct copy of correspondence dated March 14, 2012 between the AAA, Mr. Faustman, and me. 27. CLSrefused to payitsfiling fees, and on March 23, 2012, CLSfiled its second motion to stay arbitration. 28. Not having received payment from CLS, the AAA onceagain closed all 63 arbitrations and refundedPlaintiffs their share ofthe arbitration fees. Attached as Exhibit H is a true and correct copy ofcorrespondence dated March 27, 2012 from the AAA to meand to Mr. Faustman. 29. On April 9, 2012, Plaintiffs served a motion for sanctions pursuant to Code of Civil Proceduresection 128.7 on the basis that CLS’s second motionto stay was baseless andfrivolous. 30. Duringthe 21-day safe harbor period, on April 20, 2012, CLS withdrewits motion without prejudice and agreed to pay the AAA’sfiling fees for each claimant. Attached as Exhibit J is a true and correct copy of CLS’snotice of withdrawalofthe motion to stay arbitration. Page 4 DECLARATION OF RAUL PEREZ IN SUPPORT OF MOTION FOR AN ORDER DEEMING CLS TO HAVE WAIVED ARBITRATION IN IT IA TI VE L E G A L G R O U P A P C 18 00 C E N T U R Y P A R K EA ST , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 90 06 7 O o S e N N B D H W B& B W Y H Y - & N Y N Y N Y N N N N N N R m m m e s a o N D H W F F B N & § S G O D w D I R D H A BR B Ww W D H S B G S 31. It was Plaintiffs’ position that each Claimantis contractuallyentitled to select an individual arbitrator (as indeed CLS had argued in Iskanian), while it was CLS’s position that the 63 arbitrations should be consolidated into a single proceeding to be heard by a single arbitrator. 32. On June 13, 2012,the parties attend a status conference before this Court. The Court, in an informal advisory opinion, recommendedthatthe parties meet and conferandstrike a balance between the competing proposals. The parties began to negotiate the selection of arbitrators, and Plaintiffs made numerous concessions in response to the Court’s advice. Specifically, on June 25, 2012, Plaintiffs have agreed to narrow the proceedingsto 10 arbitrators. Attached as Exhibit J is a true and correct copy ofcomespondence dated June 25, 2012 from meto Mr. Faustman. 33. On July 6, 2012, Mr. Faustman agreedto a total of4 arbitrators. Attached as Exhibit K is a true and correct copy of correspondence dated July 6, 2012 from Mr. Faustman to me. 34, The parties have cometo an agreementand haveselectedthe arbitrators for 19 ofthe 63 Plaintiffs. As to each ofthese 19 individuals,all filing fees have been paid, the arbitrators have been mutually approved,and the Claimants are ready to proceed. 35. On May19, 2012, Mr. Faustman agreed to Enrique Romeroto hear the Los Angeles cases, and to Kevin Murphyto hear the San Francisco cases. Attached as Exhibit L is a true and correct copy ofcorrespondence dated May 19, 2012 from Mr. Faustman to me. 36. On June 12, I responded to Mr. Faustman’s May 19, 2012 correspondenceindicating that William Baker, Kung Ming Chang, Miguel De La Mora, Johnnie Evans, Raul Fuentes, Steve Maynard, Peter Paull, Roger Perry, Myron Rogan, Masood Shafii, Karim Shariff, and Carl Swartz each agreed to CLS’sselection of Enrique Romeroto serveas the arbitratorfortheir individual cases. In addition, Kenny Cheng and Angelo Garcia both agreed to CLS’s selection ofKevin Murphyto serveas the arbitrator for their individual cases. Attached as Exhibit M is a true and correct copy ofcorrespondencedated June 12, 2012 from meto Mr. Faustman. 37. On July 6, 2012, Mr. Faustman agreed to twoofthe arbitrators referenced in my June 25, 2012 correspondence, John Zebrowski and William Stein. Attached as Exhibit N is a true and correct copy of correspondence dated July 6, 2012 from Mr. Faustman to me. Page 5 DECLARATION OF RAUL PEREZ IN SUPPORT OF MOTION FOR AN ORDER DEEMING CLS To HAVE WAIVED ARBITRATION IN IT IA TI VE L E G A L G R O U P A P C 18 00 C E N T U R Y P A R K E A S T , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 9 9 0 6 7 — c o O o S& F Y N DB D HO H B e W Y N Y N O N O N O N O D P L P K N K N R w w m m e m e t C o n N NH N A B R W D K N S H OD O O U L U H U U G N U D N O C U C U N B e U l U W w L L U L N 38. On August |, 2012, the AAA informedtheparties that it would begin the appointmentprocessofthe arbitrators that parties had agreed selected. In response, Mr. Faustman stated that the appointmentprocessis “premature” until an overall agreementis reached, and that the AAA was“not authorized” to engage anyarbitrators at this tume. On August 2, 2012, I responded, stating that the Claimants’ arbitrations for whom arbitrators had been selected and agreed upon should move forward because any further delay denies these Claimants any forum to resolvetheir cases. | also withdrew John Zebrowski from consideration and recommended James A. Albrachtin his place. The five Claimants who agreed to CLS’sselection of William Stein to serve as the arbitrator in their individual cases are Karen Bailey, James Denison, Carl Mueller, James Richmond, and Bennett Sloan, as indicated in Exhibit L. Attached as Exhibit O is a true and correct copy ofa chain of emails sent between August 1, 2012 and August 2, 2012 amongthe offices ofILG, Fox Rothschild and the AAA. I declare under penalty of perjury underthe lawsofthe State of California and the United States of America that the foregoing is true and correct. Executed this 31st day of (22, August, 2012, at Los Angeles, California. Raul Perez Page 6 DECLARATION OF RAUL PEREZ IN SUPPORT OF MOTION FOR AN ORDER DEEMING CLS TO HAVE WAIVED ARBITRATION EXHIBIT A Fax sent by : 13105569632 GROTTA GLAS SMAN a2-99-87 18:01 Pg: 2/716 z |. : a : plo. - - : a j o ~ I DAVID-F. FAUSTMAN,BarNo.081862 NIMA SHIVAYI, Bar No. 220007 2. ||FOXROTHSCHILDLLP-- 3 [1801 Century‘Park East, Suite:‘1420. * _ Los Angeles, California.90067 4 Telephone: (310)556-8786 5 Facsimile: (310) 843-9910. 6 ||LEO V. LEYVA(NJ Bar No.39645)(AdmittedPro Hac Vice) COLE, SCHOTZ, MEISEL,FORMAN &LEONARD; PA: 7 {|Court Plaza North, 25Main Street 8 Hackensack; NJ 07602-0800. 3-1 Petephone: (201)'525-6294: 9 | Facsiinile: (201) 678-6294 10 |}Attorneys for Defendant- \ i CLSTRANSPORTATION LOS ANGELESLLC 12 ‘sumBiiOR’courtOFTHESTATE OF CALIFORNIA oo 13 . 7 al IN‘AND FORTHE-COUNTY OF Los ANGELES. 15 | ARSHAVIR ISKANIAN,individually, aad on Case No. BC 356521 | behalf of other miembers ofthe.general public 16 ||similarly situated, |NOTICE OF MOTION AND MOTIONFOR: : BS , - | ORDERCOMPELLINGARBITRATION, _ 17 Plaintiffs“ ~«. PDESMOSSING CEASS:CLAIMS,AND: ;: ARIES ce. eSFAVINGACTION PENDINGTHES ~ 18 - es OUTCOME OFARBITRATION;) 20000. il: . . _. | MEMORANDUM OFPOINTS AND Te at ; . . AUTHORITIES . - 20 CLS TRANSPORTATION LOS ANGELES ; ; LLC, a Delaware corporation;and DOES 1 DATE: March 13, 2007 31 |{ through10,inclusive, . _ ‘| TIME: 8:30 a.m. . a 7° DEPT: 24 2 Defendoits: 5.3}.Complaint filed: August 4, 2006.” 23 : Me '. _| Frial Date: None 24 Assigned for All Purposes to: 25 ‘The Honorable Robert Hess 26 Filed Concurrently Herewith: | . }) [Proposed] Order me 27 2Déciafations ofNima Shivayiand Rod.Ravea 28 : wrieden - NOTICEOFMOTIONANDMOTION FORORDER COMPELLING ARBITRATION WC7234v2 02/07/07 Fax sent by : 13165569632 GROTTA GLASSMAN &2-89-87 18:81 Pg: 3716 b o p o t a ) P w w W w N O r m — h e a d w t — ‘|| matter may be heardinDepartment 24 ofthe Les Angeles Superior Court, located aat 112.N°‘Hatt St, oO wT D N vA FB Ww W HN otheroral or documentaryevidence asmay.beaccepted 2atthe time ofhearing. | Dated: February 7.2007" =s*« 13185569632 GROTTA GLASSMAN “>-99-87 18:62 - TABLE OF AUTHORITIES 15 Calee Ga. In re Tobacco Cases:1, JECP 4041 124 Cal-App.4th 1095 (2004) Konig v. U-Han!Combav ofCalifor ie i] 45 Cal-App.4thr12432006) ' Meyer v. Carnow oO Moretcane 169 «.- Moncharshv. Heily & Blasé 3.Cal.4th ¥ (1992) 97 CalApp.Athy 10942002) Twentieth Century-FoxFilm.Com.¥.StierCourt > 1 79 Cal_App.4th 138 (2000), , [pres DiscoverBank: 18 . Statutes , 22 IeCalifornia, Code:ofCrit:Procedures:SeditionB6tay(l) CatiforniaCodeofGritProdedures§Section 1280 California Code of Civit‘Procedures Section i2812 CalifomiaCodeof.Civil Procedures Section 1281.4 DA w v n i h . Pg: 5/716 - Pase Nos. | . : i WC1 7417¥} 02/09/07 NOTICBOF MOTIONANDMOTION FOR ORDER COMPELLING ARBITRATION - a » Fax sent by — N o N R O B R R e e A *& Ob SS —§ BS B Oo w e A N X A H A R D NO =~ GS : S o > 13185569632 GROTTA GLASSMAN 7-89-87 18:62 " Sent: . Friday, July 06, 2012 12:20 PM To: Faustman, David; Sarnuel Levy; Gallegos, Yesenia M, ‘Amie Chale (ChaleA@adr.org)'; ‘Patrick Tatum (TatumP@adr.org)’ Cec: Raul Perez; Monica Balderrama; ‘lucile@adrservices.org’ Subject: RE: CLS Transportation Sorry for the delay in responding;I've been sick all week. Wewill agree to two more arbitrators: Zebrowskiin LA; Stein in San Fran. That gives us Romero and Zebrowski in the south ; Murphy and Stein in the north. We thusanticipate four arbitrations with approximately 15 claimants consolidated in each case. David F. Faustman Attorney at Law Fox Rothschild LLP 415-364-5550 From: Faustman, David Sent: Thursday, June 28, 2012 1:02 PM To: ‘Samuel Levy’; Gallegos, Yesenia M.; Amie Chale (ChaleA@adr.org); Patrick Tatum (TatumP@adr.org) Cc: Raul Perez; Monica Balderrama; lucie@adrservices.org Subject: RE: CLS Transportation 1am onthe run this week, and am justlooking atthis forthefirst time. | will give you a more specific response next week, butinitially the numberof arbitrators you proposeis not acceptable. Six claimants per session seemstoo few to gain the efficiencies we are looking for. Also, some of names you propose do not appearto beretired judges as required by the agreement. It is also unclear whether you propose San Franciscoor LA as the location. Finally, we needclarification of what you meanby “separate hearings”. We are contemplating a consolidated proceeding for eachof the groups, and a refund of someofthefiling fees by AAA. Regards -DFF From: Samuel Levy [mailto:SLevy@initiativeleqal.com] Sent: Monday, June 25, 2012 6:51 PM To: Faustman, David; Gallegos, Yesenia M.; Amie Chale (ChaleA@adr.org); Patrick Tatum (TatumP@adr.org) Cc: Raul Perez; Monica Balderrama; lucie@adrservices.or Subject: CLS Transportation Please see attached. Samuel Levy ° Initiative Legal Group arc 1800 Century Park East ¢ 2nd Floor ° Los Angeles, CA 90067 ° 310.734.0506 direct ° 310.861.9051 facsimile SLevy@IninativeLegal.com * wwwInitiativeLegalcom CONFIDENTIAL COMMUNICATION: The information contained in this e-mail messageis legally privileged and confidentialinformation intended only for the use of the individual or entity named above. If the xeceiver ofthis messageis notthe intended recipient, you are hereby notified that any dissemination,distribution or copying ofthis email messageis strictly prohibited and mayviolate the legal rights of others. If you have received this messagein error, please immediately notify the sender by reply email or telephone and return the messageto Initiative Legal Group APC, 1800 Century Park East, 2nd Floor, Los Angeles, California 90067, and delete it from yoursystem. 1 ATTENTION:IRS CIRCULAR 230 DISCLOSURE:Pursuant to Treasury Regulations, any tax advice containedin this communication (including any attachments)is not intended or written to be used, and cannot be usedorrelied upon by you or any other person, for the purposeof(i) avoiding penalties under the Internal Revenue Code,or(ii) promoting, marketing or recommendingto another party any tax advice addressedherein. This e-mail contains PRIVILEGED AND CONFIDENTIAL INFORMATIONintended only for the use of the Individual(s) named above.If you are not the intended recipient of this e-mail, or the employee or agent responsible for delivering this to the intended recipient, you are hereby notified that any dissemination or copying ofthis e-mailis strictly prohibited. If you have received this e-mail in error, please immediately notify us by telephone at (215)-299-2167or notify us by e-mail at helpdesk@foxrothschild.com. Also, please mail a hardcopy ofthe e-mail to Fox Rothschild LLP, 2000 Market Street, Philadelphia PA 19103-3222 via the U.S. Postal Service. We will reimburse you forall expenses incurred. Thank you. _ EXHIBIT L From: Faustman, David Sent: Saturday, May 19, 2012 2:24 PM To: ‘Dario Higuchi’; Raul Perez; Samuel Levy ; Gallegos, Yesenia M. Ce: Lucie Barron Subject: RE: CLS matters Follow Up Flag: Follow up Flag Status: Flagged We would agree to either Enrique Romero or Michae! Marcusto hearall of the Los Angeles cases. We would agree to Bonnie Sabraw or Kevin Murphyto hearthe San Francisco cases . Thank you. --DFF David F. Faustman Attorney at Law Fox Rothschild LLP 415-364-5550 EXHIBIT M Hid INITIATIVE LEGAL GROUPapc RAUL. PEREZ 310.556.5637 Main RPerez@Initiativelegal.com June 12, 2012 VIA E-MAIL David Faustman Fox Rothschild LLP 235 Pine Street, Suite 1500 San Francisco, CA 94104 Subject: 63 Individual Employees v. CLS Transportation ofLos Angeles, LLC,et al Dear Mr. Faustrnan: Thisletter is in response to your May 19, 2012 email regarding yourselection of arbitrators for the Los Angeles and San Francisco cases. After conferring with ourclients, some have indicated that they are willing to have their individual cases heard by the samearbitrator. With respect to our clients who reside in the Southern California area, the following Claimants agree to havetheir individual cases heard by a single arbitrator in separate hearings. William Baker Kung Ming Chang; Miguel De La Mora; Johnnie Evans; Raul Fuentes; Steve Maynard; Peter Paull; Roger Perry; . Myron Rogan; 10. Masood Shafi; 11. Karim Shariff and 12. Carl Swartz V E N A A W N S Given yourselection of Enrique Romero andin an effort to resolve informally as many outstandingissues, we will agree to Mr. Romeroservingas the arbitrator for our above clients. Our remaining clients located in Southern California do notagree to the use of a single arbitrator for their individual cases. 1800 Century Park East, Second Floor # Los Angeles, California 90067 310.556.5637 Main ® 310.861.9051 Fax ® www.lninaavel egal.com With respectto our chents whoreside in the Northern California area, the following Claimants agree to have their individual cases heard by a single arbitrator in separate hearings. 1. Kenny Cheng; and 2. Angelo Garcia Given your selection of Kevin Murphyfor the Northe rn California cases and again, in an effort to resolve informally as many outstandingissues, we will agree t o Mr. Murphyserving as the arbitrator for our above two Northern California clients. Our remaining 49 clients each wish to engage in the arbitrato r selection process provided for in the agreementfrom the individuallists of arbitrators prov ided by ADRServices. We are diligently working to complete the strike and rank process for our remaining clients, the results of which will be communicated to ADR Servi ces, and we will inform you and AAA when this has been done. If you have any questions,please call me at 310.556.5637. Th ank you. Sincerely, (FB. Raul Perez Page 2 EXHIBIT N From: Faustman, David Sent: Friday, July 06, 2012 12:20 PM To: Faustman, David; Sa muel Levy; Gallegos, Yesenia M.; ‘Amie Chale (ChaleA@ad r.org)’; ‘Patrick Tatum (TatumP@adr.org) Ce: Raul Perez; Monica Balderrama,; "lucie@adrservices.org’ Subject: RE: CLS Transportat ion Somy for the delay in responding; I've been sick a ll week. Wewill agree to two more arbitrators: Ze browski in LA; Stein in San Fran. That gives us Romero and Zebrowski in the south ; Murphy and Stein in the north. Wet hus anticipate four arbitrations with approximately 15 claimants consol idated in each case. David F. Faustman Attorney at Law Fox Rothschitd LLP 415-364-5550 From: Faustman, David Sent: Thursday, June 28, 2012 1:02 PM To: ‘Samuel Levy’; Gallegos, Yesenia M.; Amie Chale (ChaleA@adr.orq); Patrick Tatum (TatumP@adr.org) Cc: Raul Perez; Monica Balderrama; lucie@adrservices.org Subject: RE: CLS Transportation 1am onthe run this week, and am just looking at this for the first time. | will give you a more specif ic response next week, butinitially the numberof arbitrators you propose is not acceptable. Six claimants per session seem stoo few to gain the efficiencies we are looking for. Also, some of na mes you propose do not appearto be retired jud ges as required by the agreement.It is also unclear whether you prop ose San Francisco or LA asthe location. Finally , we needclarification of what you mean by "separate hearings". We ar e contemplating a consolidated proceeding for each of the groups, anda refund of some ofthefiling fees by AAA. Regards --DFF From: Samuel Levy [mailto:SLevy@initiativele gal.com] Sent: Monday, June 25, 2012 6:51 PM To: Faustman, David; Gallegos, Yesenia M. ; Amie Chale (ChaleA@adr.org); Patrick Ta tum (TatumP@adr.orq) Cc: Raul Perez; Monica Balderrama; lucie@ad rservices.org . Subject: CLS Transportation Please see attached. Samuel Levy ° Initiative Legal Group arc 1800 Century Park East ° 2nd Floor° Los Angeles, CA 90067 * 310.734.0506 direct ° 310.861.9051 facsimile SLevy@InitiativeLegal.com > wonw.[ninati veLegal.com CONFIDENTIAL COMMUNICATION: The information contained in this e-mail message is legally privileged and confidential information i ntended only for the use ofthe individual or entity named above.Ifthe receiver ofthis message is notthe intended recipient, you are hereby notified that any dissemination,distribution or copying ofthis ema il messageis strictly prohibited and may violate the legal rights of others. If you have received this messagein error, please immediatel y notify the sender by reply email or telephone a nd retum the message to Initiative Legal Group APC,1800 Century Park East, 2nd Floo r, Los Angeles, California 90067, and delete it f rom yoursystem. 1 ATTENTION: IRS CIRCULAR 230 DISCLOSURE:Pursuant to Treasury Regulations, any tax advice contained in this communication (including any attachments)is not intended or written to be us ed, and cannot be used orrelied upon by youor any other person,for the purpose of (i) avoiding penalties un der the Internal Revenue Code,or(ii) promoting, marketing or recommendingto another party any tax advic e addressed herein. This e-mail contains PRIVILEGED AND CONFIDENTIAL INFORMATIONintended only for the use of the Individual(s) named above. If you are n ot the intended recipientofthis e-mail, or the employee or agent responsible for delivering this to the i ntendedrecipient, you are hereby notified that any dissemination or copyingofthis e-mail is strictly prohibited. If you have received this e-mail in error, please immediately notify us by telephoneat (21 5)-299-2167 or not ify us by e-mail at helpdesk@foxrothschild.com. Also, please mail a hardcopy of the e-mail to Fox Rothsch ild LLP, 2000 Market Street, Philadelphia PA 19103-3222 via the U.S. Postal Service. Wewill reimburse youfor all expenses incurred. Thank you. EXHIBIT O From: Raul Perez Sent: Thursday, August 02, 2012 2:55 PM To: Faustman, David; ‘Amie Chale’; Samuel! Levy; Gallegos, Yesenia M.; Patrick Tatum Ce Monica Balderrama; ‘lucie@adrservices.org’, Raul Perez Subject: RE: CLS Transportation Dear Ms. Chale: This letter is in response to your email today regarding the appointment ofArbitrator Enrique Romero and Arbitrator Kevin Murphy to hear the claimsas referenced in our letter dated June 12, 2012. Asstatedin thatletter, we agreed to appoint Arbitrator Enrique Romeroto hear the claims of 12 specific Claimants, and to appoint Arbitrator Kevin Murphyto hear theclaimsof2 specific Claimants. We agree with AAA that those arbitrations should move forward because to delay any further denies these Claimants any forum to resolvetheir claims. Please advise whatis next step to arbitrate thoseclaims. In regard to.the names ofadditionalarbitrators to hearthe claims of the remaining Claimants, we offered a reasonable compromisethat balancesthe interests of our clients and respondent’s by teducing the number of arbitrators previously demanded from 63 to 10in our letter dated June 25, 2012. On July 6, 2012, Mr. Faustman countered our proposalby only agreeing to 2 additional arbitrators, Hon. John Zebrowski and Hon. William Stein. However, we discussed Mr. Faustman’s proposalwith our clients andit is unacceptable. Furthermore, we withdraw Justice Zebrowski from consideration. We recommend that Hon.James A. Albracht take his place. We urge Mr. Faustmanto reconsider our July 6, 2012 proposal, with Hon. James A. Albrachtin place of Hon. John Zebrowski. From: Faustman, David [mailto:DFaustman@foxrothschild.com] Sent: Wednesday, August 01, 2012 2:57 PM To: ‘Amie Chale’; Samuel Levy; Gallegos, Yesenia M.; Patrick Tatum Cc: Raul Perez; Monica Balderrama; ‘lucie@adrservices.org' Subject: RE: CLS Transportation Ihave heard nothing from plaintiffs’ counsel in this matter in over a month. While the parties have tentatively agreed that Romero and Murphy would be acceptable, we have NOT agreed onthe particular claims that e ach would hear. The claimantslisted in the June 12 letter amounted to a unilateral proposal that was NOT accepted. The app ointment process is thus premature untit an overall agreementis reached. AAA is NOT authorized to handle these 63 claims ana piecemeal basis, or to engage any particular arbitrator at this time: If the parties cannot agree on the arbitrators and claims, the matter will go back to the court for resolution. -DFF David F. Faustman Attorney at Law Fox Rothschild LLP 415-364-5550 From: Amie Chale [mailto:ChaleA@adr.org] Sent: Wednesday, August 01, 2012 2:16 PM To: Faustman, David; ‘Samuel Levy’; Gallegos, Yesenia M.; Patr ick Tatum Cc: 'Raul Perez’; ‘Monica Balderrama’; ‘ucie@adrservices.org’ Subject: RE: CLS Transportation Good Afternoon: As the parties have agreed to appoint Arbitrator Enr ique Romero and Arbitrator Kevin Murphyto hear t he claims as referenced in Claimant's letter dated June 12, 2012, the Association will begin the appointment process o f these two arbitrators. We ask that parties to please provide u s with any updatedinformation regarding the names of the remaining arbitrators and their assigned claims. Thank you. Amie Chale Supervisor for Labor, Employment and Elections American Arbitration Association Western Case Management Center 6795 N. Palm Ave., 2nd Floor Fresno, CA 93704 Tel: 559-490-1874 Fax: 855-270-8400 E-mail: chalea@adr.org www.adr.org The informationin this transmittal (including atta chments,if any) is privileged and/or confidential a ndis intended only for the recipient(s) listed above. Any review,use, di sclosure, distribution or copying ofthis tran smittal is prohibited except by or on behalf o f the intendedrecipient. Ifyou have received this tra nsmittal in error, please notify me immediately by reply email and destroyall copies of the transmittal. Thank you. Registration is now open! Webinar — Disclosures, Depositions and Dispositive Motions in Employment Arb itration: Find out how advocates, parties and neutrals w ho deal with these aspectsof arbitral proceed ings can greatly enhancetheir chancesfor success. September 12, 2012,at 2:00 PM EDT For more information contact: AAAUnive rsity@adr.org of 212 716 3977 or http://www.aaauonline.ore/courseSectio n.aspx?course=432 OR IG IN AL ’ ol f O m U l C O O C O C U N M l U N C O C U N C O G A P G aA a D NHN = SG I N T A T I V E L E G A L G R O U P a 1 k C E N T U R Y P A R W E A S T , S E G O N D F L O O R , L O S A N G E L E S , C A L I F O R N L S G N 4 7 n y NY O O N N O S l e S R a R O R B P S GS & d N o o Raul Perez (SBN 174687) RPerez@InitiativeLegal.com Los Angeles Superior Coun Melissa Grant (SBN 205633) MGrant@lnitiativeLegal.com Glenn A. Danas (SBN 270317) SEP 20 2012 GDanas@InitiativeLegal.com ; tatesPepa Group APC oA. Clarke, Executive Officer/Clerk 1800 Century Park East, 2nd Floor SHA FSLEV Deputy Los Angeles, Califomia 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 AttomeysforPlaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES GREG KEMPLER, et al., Case No.: BC473931 Plaintiffs, [Assigned to Hon. Robert L. Hess; Related to BC356521] vs. AMENDEDNOTICE OF MOTION FOR CLS TRANSPORTATION LOS ANGELES ORDER DEEMING DEFENDANT CLS LLC, a Delaware corporation; and DOES1 TO HAVE WAIVED ARBITRATION through 10,inclusive, Previously Scheduled: Defendants. Date: September25, 2012 New Date: Date: November6, 2012 Time: 8:30 a.m. Place: Department 24 Complaint Filed: November18. 2011 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THATthe hearing on Plaintiff's Motion for an Order Deeming Defendant CLSto have Waived Arbitration previously scheduled for September 25, 2012, has been rescheduled to November 6, 2012 at 8:30 a.m.or as soon thereafter as the matter may be heard, in Department24 in the Los Angeles Superior Court, located at 111 North Hill Street, Los Angeles, California, 90012. Plaintiffs’ Motion is based on this Amended Notice of Motion, the Memorandum of AMENDEDNOTICE OF MOTION FOR ORDER DEEMING DEFENDANT CLS TO HAVE WAIVED ARBITRATION a w IN IT IA TI VE L E G A L G R O U P A P C a o d C E N T U R Y B A R K E A S T , S E C O N D F L C O R , L O S A N G E L E S . C A L I F O R N E N 9 0 0 6 7 Ist ra N o = o O o 7 m O N N O H E e OW ! N N w p N N Y N Y N Y K N F F | @ F P F F T F = = F 5 S B P N R R R OB O N S f F S B B O e H D H F Y N = Points and Authorities filed with this Court on August 31, 2012, the declaration of Raul Perez and all exhibits attached thereto filed with this Court on August 31, 2012,all pleadings and papess onfile in this action and in the related action [skanian v. CLS Transportation Los Angeles LLC, Los Angeles Superior Court Case No. BC356521, and such othermatters as may be presented to the Court at or before the time of the hearing. Dated: September 19, 2012 Respectfully submitted, Initiative Legal Group APC Glenn A. Danas Attomeys for Plaintiffs AMENDEDNOTICE OF MOTION FOR ORDER DEEMING DEFENDANT CLS TO HAVE WAIVED ARBITRATION I N T N A T I V E L E G A L G R O U P A P C 1 8 0 0 C E N T U R Y P A R K EA ST , S E C O N D F L O O R , L O S A N G E L E S , C A L I F O R N I A 9 0 0 6 7 OR IG IN AT : PROOFOF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employedin the State of California, County of Los Angeles. | am over theAge of 18 and not a party to the within suit; my business address is 1800 Century Park East, 2" Floor, Los Angeles, California 90067. On September 19, 2012, I served the documents described as: AMENDED NOTICE OF MOTION FOR ORDER DEEMING DEFENDANT CLS TO HAVE WAIVED ARBITRATION on the interested parties in this action by sending [ } the original (or] (VW]a true copy thereof [v’] to interested parties as follows [or] [ ] as stated on theattachedservicelist: Yesenia Gallegos, Esq. FOX ROTHSCHILD LLP 1800 Century Park East, Suite 300 Los Angeles, CA 90067 { ] BY MAIL (ENCLOSEDIN A SEALED ENVELOPE):| deposited the envelope(s) for mailing in the ordinary course of business at Los Angeles, California. I am “readily familiar” withthis firm’s practice of collection and processing correspondencefor mailing. Underthat practice, sealed envelopes are deposited with the U.S.Postal Service that same dayin the ordinary course of business with postage thereonfully prepaid at Los Angeles. California. [ ] BY E-MAIL: | herebycertify that this document was served from Los Angeles, California, by e-maildelivery onthe parties listed herein at their most recent known e- mail address or e-mailof recordin this action. [ } BY FAX:I hereby certify that this document was served from Los Angeles, California, by facsimile delivery onthe parties listed herein at their most recent fax number of record in this action. [¥] BY PERSONAL SERVICE:I delivered the document, enclosedin a sealed envelope, bv handto the offices of the addressee(s) named herein. [ ] BY OVERNIGHT DELIVERY:| am “readily familiar” with this firm’s practice of collection and processing correspondence for overnight delivery. Underthat practice, overnight packages are enclosed in a sealed envelope with a packingslip attached thereto fully prepaid. The packagesare picked up by the carrier at our offices or delivered by our office to a designated collectionsite. I declare under penalty of perjury underthe lawsofthe State of California that the foregoing is true and correct. Executed this September 19, 2012, at Los Angeles, California. _-- ————See Sam Levy _ Type or Print Name Signature PROOF OF SERVICE SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES DATE: 11/06/12 DEPT . 24 HONORABLE Robert L. Hess yuDGE|| G. Charles DEPUTY CLERK HONORABLE JUDGE PRO TEM ELECTRONIC RECORDING MONITOR #1 B. Bell c/c Deputy Sheriff] K. Algorri ‘CSR, 8319 Stip Reporter 8:30 am|BC473931 Plaintiff Raul Perez (X) Couns! Katherine Kehr (x) . GREG KEMPLER Defendant David Faustman (x) ‘VS Counsel CLS TRANSPORTATION LOS ANGELES R/t BC356521 NATURE OF PROCEEDINGS: CASE MANAGEMENT CONFERENCE The cause is called for hearing. The Court orders the following procedures, as more fully stated on the record: There will be two arbitrators, Murphy and Stein for Northern California. Northern California claimants are to choose between them. There will be 6 Southern California arbitrators-- Romero plus five to be chosen. The parties are to attempt to agree on 5 more; if there is not complete agrement, they will use strike procedure. Each claimant for Southern California is to chose which arbitrator to use. : The Southern California arbitrators are to be selected not later than November 27, 2012. Each claimant is to make a binding choice of arbitrator to hear their case not later than December 18, 2012. This choice is irrevocable unless the arbitrator withdraws or is disqualified for cause. The matter is continued to 8:30am December 21, 2012 for status of arbitration. The parties are to present a final list of srbitrators and which claimant will use which arbitrator. The parties are to be prepared to address when the arbitration will actually comm- MINUTES ENTERED Page lof 1 DEPT. 24 11/06/12 COUNTY CLERK 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES J am employedin the State of California, County of Los Angeles. I am overthe age of 18 and nota party to the within suit; my business address is 1840 Century Park East, Suite 450, Los Angeles, California 90067. On April 10, 2013, I served the document(s) describedas: 1) MOTION FOR JUDICIAL NOTICE; MEMORANDUMOFPOINTS AND AUTHORITIES; PROPOSED ORDER; VOLUME I OF I on the interestedparties in this action by sending[ ] the original [or] [’] a true copy thereof [ ] to interested parties as follows [or] [“] as stated on the attachedservicelist: SEE ATTACHED SERVICELIST [ ] BY MAIL (ENCLOSED IN A SEALED ENVELOPE):I deposited the envelope(s) for mailing in the ordinary course of business at Los Angeles, California. 1 am “readily familiar” with this firm’s practice of collection and processing correspondence for mailing. Under that practice, sealed envelopes are deposited with the U.S. Postal Service that same day in the ordinary course of business with postage thereonfully prepaid at Los Angeles, California. [ } BY E-MAIL: herebycertify that this document wasserved from Los Angeles, California, by e-mail delivery on the parties listed herein at their most recent known e- mail address or e-mail of record in this action. [ ] BY FAX: [herebycertify that this document was served from Los Angeles, California, by facsimile delivery on the parties listed herein at their most recent fax number of record in this action. [ ] BY PERSONALSERVICE:I delivered the document, enclosed in a sealed envelope, by handto the offices of the addressee(s) namedherein. [¥] BY OVERNIGHT DELIVERY:I am “readily familiar” with this firm’s practice of collection and processing correspondence for overnight delivery. Underthatpractice, overnight packagesare enclosed in a sealed envelope with a packingslip attached thereto fully prepaid. The packagesare picked up bythe carrier at ouroffices or delivered by ouroffice to a designated collectionsite. I declare under penalty of perjury underthe lawsofthe State of California that the foregoingis true andcorrect. Executed this April 10, 2013, at Los Angeles, California. ny) Rashan R. Barnes NieKbree LP Type or Print Name Signature Page | PROOFOF SERVICE o f o n N D W ‘10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Yesenia Gallegos, Esq. David Faustman, Esq. FOX ROTHSCHILD LLP 1800 Century Park East, Suite 300 Los Angeles, CA 90067 Telephone: (310) 598-4159 Facsimile: (310) 556-9828 E-mail: Ygallegos@foxrothschild.com dfaustman@foxrothschild.com Attorneys for Defendant/Respondent CLS Transportation of Los Angeles Scott L. Nelson (Pro Hac Vice) Public Citizen Litigation Group 1600 20"Street, NW Washington, DC 20009 Telephone: (202) 588-1000 Facsimile: (202) 588-7795 Email: SNelson@Citizen.org Attorney for Plaintiff/Appellant Arshavir Iskanian Appellate Coordinator Office of the Attorney General Consumer Law Section 300 South Spring Street Fifth Floor, North Tower Los Angeles, CA 90013 Office of the Attorney General Office of the District Attorney County of Los Angeles Appellate Division 210 West Temple Street, Suite 18000 Los Angeles, CA 90012 District Attorney of the county in which the lower proceeding was filed The Hon. Robert Hess Department 24 c/o Clerk of the Court Los Angeles Superior Court 111 North Hill Street Los Angeles, CA 90012 California Court of AppealSecond Appellate District, Div. 2300 S. Spring StreetNorth Tower, 2™ FloorLos Angeles, CA 90013 Page 2PROOF OF SERVICE