MEMORANDUM OF POINTS AND AUTHORITIES. On October 25, 2017, this Court granted preliminary approval of the class action

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3 I. INTRODUCTION MEMORANDUM OF POINTS AND AUTHORITIES On October, 01, this Court granted preliminary approval of the class action settlement in this case. (Ex..) 1 In accordance with the Court s order, the parties provided the Court-Ordered Notice of the Settlement and the Final Approval Hearing to 0 class members. (Ex..) No one has objected to or opted out of the settlement. (Id. at -.) Assuming the Court awards the maximum allowable deductions from the common fund for fees, costs, PAGA and enhancement payment, each class member will receive, on average, $, for claims that OneWest s timekeeping program shorted them a few minutes of worktime a day. (Id. at 1.) The median settlement payment is $0. 0 of the class members receiving the highest settlement payment of $1. (Id.) This settlement confers substantial benefit on the class members, particularly after considering the difficulties of this wage and hour class action litigation. Settling now removes the risk of certifying this class and prevailing at trial and removes the delay of proceeding through trial and potential appeals. The total settlement fund will equal approximately $,000, made up of the $0,000 cash settlement amount plus approximately $,000 that OneWest is separately paying for the employer s share for payroll taxes. (Id. at 1.) Certification of the proposed class for settlement purposes is appropriate. Final approval of the Settlement is also appropriate. Accordingly, Plaintiff asks that the Court to: (1) certify the class for settlement purposes; () grant final approval of the Settlement; () order OneWest to make a one-time deposit of the Class Settlement Amount of Four Hundred Twenty Thousand Dollars ($0,000) into the Qualified Settlement Account; and () order the Claims Administrator to distribute the settlement 1 All exhibits are to Curtis s Declaration in support of the Motions for Final Approval and Fees, Costs, and Enhancement Award. This amount includes approximately $, in social security taxes, which directly benefits the employee. The amount of money an employer contributes to Social Security on behalf of an employee correlates with the amount of money the employee eventually receives from Social Security. See, SOCIAL SECURITY, UNDERSTANDING THE BENEFITS (01) at - ( PLAINTIFF S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL; MPA

4 proceeds pursuant to the settlement agreement. Plaintiff also requests that the Court enter judgment while reserving jurisdiction to enforce the terms of the final approval order, judgment and settlement agreement. Finally, Plaintiff, through a separate motion, requests that the Court grant Plaintiff s motion for attorneys fees, costs, and an enhancement award. II. BRIEF STATEMENT OF FACTUAL ALLEGATIONS AND CLAIMS Plaintiff worked for OneWest as a non-exempt Systems Analyst from March 00 to May (Ex.,.) Throughout the relevant period, OneWest required its non-exempt employees to record their worktime on an internet-based timekeeping system, called etime. (Ex.,.) In this lawsuit, Plaintiff alleges that OneWest violated numerous Labor Code sections by requiring its non-exempt employees to record their worktime on etime because that necessitated their performing several minutes of uncompensated work each day. (Complaint 1;.) As further detailed in the Motion for Preliminary Approval, Plaintiff claims that OneWest s timekeeping practice violated the Labor Code by failing to pay regular and overtime wages due (,, 1.1, 1, 1., 1, 1.1 and 1), failing to provide timely meal periods (., 1, and ), failing to provide accurate wage statements or keep accurate pay records ( (a),, and.), and failing to pay all wages due at termination ( 01, 0 and 0). Plaintiff also alleges a derivative claim under Business and Professions Code section III. THE SETTLEMENT OneWest has agreed to pay $0,000 plus its share of any payroll taxes into a Qualified Settlement Account. The settlement was reached through negotiations that began with a mediation with Lisa Klerman. (Ex., 1.) The parties continued to negotiate with Ms. Klerman s assistance until reaching an agreement in principal on October, 01. (Id.) The Agreement permits certain deductions from this common settlement fund for attorneys fees (no more than $,000), actual litigation costs (no more than $1,000), claims - -

5 administration costs (estimated to be $,000 and now known to be $,.), PAGA ($1,000), and an enhancement payment to Plaintiff (no more than $,000). Assuming the Court approves all of the deductions, a net amount of $,00. will be distributed to the 0 members of the Class. That amount will be divided by the aggregate total number of workweeks worked by all Class Members,,, resulting in the Workweek Value of $.0, which will then be multiplied by the Class Members number of workweeks to determine their individual recoveries under the settlement. (Ex. (b).) This was the procedure used in calculating the individual settlement payments that were identified in Class Notices. If the settlement is finally approved, each of the Class Members will receive a settlement award via check. Class members need not submit a claim form to receive their awards. The average award will be $. (Id. at 1.) 1 1 IV. PRELIMINARY APPROVAL On October, 01, the Court granted preliminary approval of the Settlement. (Ex..) In accordance with the Court s Order, OneWest provided the Claims Administrator with certain contact information and the payroll data. The Claims Administrator calculated the estimated settlement awards. On November, 01, the administrator sent notice to the Class consistent The $. that the Settlement Administrator came in under budget (Ex. 1) will be distributed pro rata to the Class Members. The allocation to the PAGA penalties is actually $1,000 but pursuant to of the Settlement Agreement, % of that is sent to the LWDA with the remaining $,000 distributed pro rata to the class members as part of the Net Settlement Amount, so the deducted amount identified above is that sent to the LWDA. The $1,000 allocation is.% of the settlement sum, which is considerably more than allocations in other approved settlements. See, e.g., Nordstrom Commission Cases (0) Cal.App. th, 1 (upholding a class action/paga settlement that allocated zero funds to the PAGA claims); Chu v. Wells Fargo Investments, LLC (N.D. Cal. 0) 0 WL (approving PAGA allocation of $,000 against a settlement fund of. million (.1 percent)). Plaintiff has submitted a copy of this settlement to the LWDA. (Ex.,.) The LWDA has not objected to this settlement. The initial data OneWest provided Plaintiff identified,, which was more workweeks than the final number OneWest provided the administrator. The difference is less than one half of one percent. The original workweek count resulted in the same rounded Workweek Value of., which Plaintiff used to estimate the Class Members recoveries at the preliminary approval stage. (Ex., 1.) OneWest has explained the discrepancy as resulting from counting the period between two stints of employment by Class Members. (Curtis Decl., 1.) - -

6 with the Court s Preliminary Approval and the Agreement. (Ex.,.) In addition, Class Counsel developed and published a comprehensive website explaining the Settlement that included links to the important pleadings in the case. (See Ex. or The Class has received the best notice practicable of the Settlement. After receiving notice, no Class Member objected to the Settlement or opted out of it. (Ex. -.) V. ARGUMENT A. Certification of the Class Is Appropriate for Settlement Purposes California public policy favors the settlement of class actions. Bell v. American Title Ins. Co. (1) Cal.App.d, and this Court is authorized to certify a class for settlement purposes. CRC.(d). In its Preliminary Approval Order, the Court preliminarily certified the class as: all persons who were employed in non-exempt non-branch positions for Defendant in California at any time during the period from September, 01, through December 1, 01. (Ex., p..) Nothing has happened since to disturb this ruling. Accordingly, final certification of the Class for settlement purposes is appropriate. Ching v. Siemens Industry (N.D. Cal. 01) 01 WL, * (finding final class certification appropriate based on preliminary approval order); Bolton v. U.S. Nursing Home Corp. (N.D. Cal. 01) 01 WL 000, * (same). B. The Settlement Is Adequate, Reasonable and Fair Rule.(f)-(h) of the California Rules of Court authorizes the Court to conduct an inquiry into the fairness of a class action settlement and finally approve such settlements. The standard is whether the agreement is fair, adequate and reasonable. Dunk v. Ford Motor Co. () Cal.App. th, This determination, by necessity, represents an amalgam of delicate balancing, gross approximations and rough justice. In re Microsoft I-V Cases (00) Of the 0 notices sent out, only were returned by the U.S. Postal Service. (Ex., ). CAC performed an address search for those Class Members and was able to find a substitute addresses for two of them and mail the Notice to the substitute address, so that only eight Notices were undeliverable (1.%). (Id.) - -

7 Cal.App. th 0,. However, a class action settlement agreement is presumptively fair if the following factors are met: (1) the settlement is reached through arm s length bargaining; () investigation and discovery are sufficient to allow counsel and the court to act intelligently; () counsel is experienced in similar litigation; and () the percentage of objectors is small. Id. The settlement agreement in this case satisfies each of the above factors. This Court already determined that the first three factors were met at the preliminary stage, but they are briefly addressed below again, with citations to the relevant pages of the Preliminary Approval Order. First, the settlement was reached through arms-length bargaining. Plaintiff and OneWest agreed to a tentative settlement only after mediation. Even after the tentative settlement, the parties engaged in lengthy and substantive negotiations over the course of five months to reach a final agreement. There was nothing collusive about this settlement. (Ex., p..) Second, the discovery and investigation in this case were sufficient to permit both counsel and the Court to act intelligently. Class Counsel spent considerable time and resources identifying, investigating, and valuing the class claims in this case. Class Counsel s analysis included legal research, formal discovery requests, motions to compel for the information OneWest resisted providing, and retention of a data consultant to synthesize the data provided by OneWest and to create damages and recovery models. Class Counsel located, reached out to, and interviewed other OneWest employees. In connection with the mediation, the parties further exchanged information and legal theories concerning the strengths and weaknesses of the various claims. This is sufficient information to permit an intelligent assessment as to the reasonableness of this Settlement. (Ex., pp. -.) Third, Class Counsel is experienced in this type of litigation. (Ex., p..) Fourth, we now know that no Class Member has objected to the Settlement. (Ex.,.) Moreover, not only is the settlement presumptively fair under California law, it is also objectively fair. (Ex., pp. -.) A judge s duty in a class action settlement situation [is] to - -

8 estimate the litigation value [not the undiscounted, pie-in-the-sky value] of the claims of the class and determine whether the settlement is a reasonable approximation of that value. Mirfasihi v. Fleet Mortg. Corp. (00) F.d 1, (emphasis added). Here, the Settlement is a fair approximation of the litigation value of the case. Specifically, Plaintiff values the undiscounted compensatory damages at $1,,, or an average of $, per Class Member. (Ex., 1). Assuming that the Court approves the Settlement with all deductions, the total average net recovery for the Class Members will be $. (Ex., 1.) This is a recovery of cents on the compensatory damages dollar. (Ex., ). And Class Members on average will receive 1 cents on the dollar based on the Gross Settlement Amount of $0,000. (Id.) This is a good settlement in light of (among other things) the significant risks associated with this case. (Ex., -1). In sum, given the risks and uncertainties associated with continued litigation, including the substantial possibility that class certification would be denied or subject to a later decertification motion, the anticipated settlement payment to Class Members is adequate, reasonable and fair. D. Entry of Judgment Finally, in accordance with Rule.(h) of the California Rules of Court, Plaintiff asks the Court to enter judgment, but reserve jurisdiction, upon entering its order approving the Settlement Agreement in this case. Both a proposed order and a proposed judgment is provided for the Court s review. It is appropriate to consider the gross award (before deductions) in comparing the litigation value against the settlement award. Among other things, it is appropriate to pay fees out of a common fund, even in a fee-shifting case, to avoid the unjust enrichment of those who benefit from the fund that is created, protected, or increased by litigation and who otherwise bear none of the litigation costs. Sobel v. Hertz Corporation (D. Nev. 01) 01 WL 0, *. - -

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