UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Transcription

1 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 Andrew T. Ryan, Esq. (SBN 00 RYAN LAW, A Professional Law Corporation Rosecrans Avenue, Ste 0 El Segundo, California 0 Tel: (0-00 Fax: (0 - Andrew.ryan@thelawgroup.com MANDATORY CHAMBERS COPY Attorneys for Plaintiff DRIA MOORE, an individual, vs. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Plaintiff, INTERNATIONAL COSMETICS AND PERFUMES, INC. and DOES through 0, inclusive, Defendants. Case No. :-cv-0-dmg- DTB Judge: Hon. Dolly M. Gee MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF S MOTION FOR AN ORDER ( PRELIMINARILY APPROVING THE CLASS ACTION SETTLEMENT; ( APPROVING NOTICE OF CLASS ACTION SETTLEMENT; AND ( SETTING HEARING FOR FINAL APPROVAL Courtroom: C- th Floor Date: August, Time: :0 a.m.

2 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 TABLE OF CONTENTS Page I. INTRODUCTION II. STATUS OF LITIGATION. A. Procedural History.. B. Investigation and Discovery.. C. Settlement Efforts... III. SETTLEMENT AGREEMENT AND ACCOMPANYING DOCUMENTS.. IV. THE TWO-STEP APPROVAL PROCESS.. V. THE SETTLEMENT IS FAIR AND ADEQUATE A. The Strength of Plaintiff s Case B. The Risks Associated with the Merits.. C. The Risks Associated with the PAGA Penalties..0 D. The Risk, Expense, Complexity and Likely Duration of Any Litigation.0 E. The Risk of Maintaining Class Action Status Through Trial... F. The Amount Offered in Settlement. VI. THE CLASS REPRESENTATIVE ENHANCEMENT IS FAIR AND REASONABLE.. VII. THE PROPOSED CLASS NOTICE PROVIDES ADEQUATE NOTICE TO THE CLASS MEMBERS... VIII. THE STIPULATED AWARD OF ATTORNEYS FEES AND COSTS IS REASONABLE AND SHOULD BE APPROVED. IX. ACTION REQUESTED AS A PART OF THE MOTION FOR PRELIMINARY APPROVAL i

3 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #:0 0 TABLE OF AUTHORITIES Page(s Cases Beech Cinema, Inc. v. Twentieth-Century Fox Film Corp., 0 F. Supp. (S.D.N.Y.. Big Lots Overtime Cases, San Bernardino County Super. Ct., JCCP Proceeding No. (Feb. 0 (Hon. Walter L. Blackwell, III Bogosian v. Gulf Oil Corp., F.Supp. (E.D. Pa., Bryan v. Pittsburgh Plate Glass Co.(PPG Industries, Inc., F.R.D.,, (W.D. Pa... Brinker Restaurant Corp. v. Super Ct., Cal th, 00 ( Cartt v. Superior Court, 0 Cal.App.d 0, ( Class Plaintiffs v. City of Seattle, Seattle F.d, (. Cole v. CRST, Inc., F.R.D., (C.D. Cal... Daum v. Claim Jumper Restaurants, Orange County Super. Ct., Case No.0CC0 (0 (Hon. Ronald L. Bauer. Duran v. U.S. Bank Nat. Assn., Cal. th, ( Estrada v. Dr. Pepper/Seven-Up, Los Angeles County Super. Ct., Case No. BC (May 0 (Hon. Anthony J. Mohr. ii

4 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 Evans v. Coca-Cola, Los Angeles County Super. Ct., Case No. BC 0 (Hon. Richard C. Hubbell (Dec. 0 Fitzpatrick v. Baja Fresh, Los Angeles Super.Ct., Case No. BC (Hon. Anthony J. Mohr (Mar. 0 Hammon v. Barry, F. Supp. 0 (D.D.C. 0. In re Activision Securities Litigation, F. Supp.,, -..., In re Ampicillin Antitrust Litigation, F.Supp. (D. D.C... In re Armored Car Antitrust Litigation, F. Supp (N.D. GA In re Chicken Antitrust Litigation, 0 F. Supp., (N.D. GA 0 In re Pacific Enterprises Securities Litigation, F.d, - (th Cir. In re Vitamin Cases, 0 Cal.App.th, (0 In re Wash. Pub.Power Supply Sys. Sec. Litigation, F.d, - (th Cir.... Josiah Eaton v. Adolph Coors Company Orange County Super. Ct., Case No. 0CC000 (0 (Hon. Stephen J. Sundvold Kimbell v. Abercrombie & Fitch Stores, Inc., Los Angeles County Super.Ct. Case No.BC (Sept. 0 (Hon. Kenneth R. Freeman Kullar v. Foot Locker Retail, Inc., Cal. App. th, (0.., iii

5 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 Linder v. Thrifty Oil Co., Cal. th, (00.. Mars Steel Corp. v. Continental Illinois National Bank and Trust Co., F.d, (th Cir. Moore v. IKEA, Los Angeles County Super.Ct., Case No.BC (Sept. 0 (Hon. Peter Lichtman.. Moreno v. Miller Brewing, Los Angeles County Super.Ct. Case No.BC 0 (April 0 (Hon. David M. Minning Mullane v. Central Hanover Bank & Trust Co., U.S. 0 (0, North County Contractor s Assn., Inc. v. Touchstone Ins. Services, Cal. App. th 0, 0- ( Parker v. City of Los Angeles, Cal.App.d, - ( Priddy v. Edelman, F.d, (th Cir. Rodriguez v. West Publ. Corp., 0 U.S. Dist. LEXIS, - (C.D. Cal. August 0, 0.. Sommers v. Abraham Lincoln Federal Savings & Loan Association, F.R.D. (ED PA.. State v. Levi Strauss & Co., Cal. d 0, (.. Van Gemert v. Boeing Co., F.Supp., (S.D. N.Y.. Van Vranken v. Atlantic Richfield Co., 0 F.Supp. (N.D. Cal.... iv

6 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 Vincent v. Hughes Air West, Inc., F.d, (th Cir.... Statutes Ca. Lab. Code, -,,., 0, 0,,,,,,., et seq, (e(,., 00, 0..,,,, 0 Ca. Business and Professions Code 0 et seq.. Cal. Code Regs. tit., 00 U.S.C.,, Secondary Sources Federal Manual for Complex Litigation, Second ( MCL d 0.. Manual for Complex Litigation (Second ( at 0.. Newberg...,,, v

7 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 I. INTRODUCTION This putative wage and hour class action is brought by Plaintiff Dria Moore, ( Moore on behalf of employees who sold, marketed, advertised and or demonstrated fragrance and beauty products for International Cosmetics and Perfumes, Inc., ( ICP in the State of California. The class period is from April, 0 to the present. Moore was employed by ICP as a Fragrance Sales Consultants ( FSC who helped in the sale of fragrance and beauty products at the perfume counters in various department stores in the Los Angeles area. II. STATUS OF THE LITIGATION A. Procedural History On April,, the Dria Moore filed a Complaint in the Superior Court of California, Riverside (Case No. RIC 0, against ICP, on behalf of herself and others similarly situated. On June,, ICP removed the case to the District Court for the Central District of California, pursuant to the Class Action Fairness Act of 0, U.S.C.,, and under the caption Dria Moore v. International Cosmetics and Perfumes, Inc., Case No. :-cv-0-dmg-dtb ( Lawsuit. On June,, Plaintiff filed a First Amended Complaint in this Court, alleging that ICP misclassified Plaintiff and Class Members and seeking damages, injunctive relief, and restitution under the Fair Labor Standards Act ( FLSA and California law. On July,, Plaintiff filed the operative Second Amended Complaint in this Court, withdrawing her FLSA claims, and seeking recovery for the following causes of action: ( failure to pay overtime and pay for all hours worked in violation of California Labor Code, 0,, and and

8 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 the relevant orders of the California Industrial Welfare Commission ( IWC ( overtime claim and off-the-clock claim ; ( failure to pay minimum wage in violation of California Labor Code,, and. ( minimum wage claim ; ( failure to provide meal and rest periods in violation of California Labor Code. and ( meal-and-rest-break claim ; ( failure to reimburse necessary expenses in violation of California Labor Code 0, 00, and 0 ( expense reimbursement claim ; ( failure to provide accurate wage statements in violation of California Labor Code and ( wage statement claim ; ( failure to pay wages due and owing in violation of California Labor Code - ( unpaid wages claim and waiting time claim ; ( violation of the Unfair Competition Law ( UCL claim, California Business and Professions Code 0 et seq.; and ( relief under the Private Attorneys General Act ( PAGA, California Labor Code et seq. on March,, the Court issued its class certification decision ( Order Re: Class Certification, defining the class as [a]ll persons who are or have been employed as Fragrance Sales Consultants for [ICP] in the State of California at any time on or after April, 0 through the entry of final judgment in this action, and certifying for class wide adjudication Plaintiff s meal-and-rest break and off-the-clock claims for time spent working in stores and attending training sessions, and Plaintiff s derivative wage statement claim, waiting time claim, and UCL claim; and on May,, denied ICP s Motion for Reconsideration of the Court s Order Re: Class Certification. On June,, the Court granted summary judgment in favor of ICP ( Summary Judgment Order on all causes of action in Plaintiff s Second Amended Complaint, holding that Plaintiff and the Class Members are outside salespersons under California law, exempt from California s wage

9 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 and hour laws (see Cal. Lab. Code ; IWC Wage Order No. - 0((C, codified at Cal. Code Regs. tit., 00 (Doc., and on June,, entered Judgment in favor of ICP and closed the case. On September,, following briefing by the Parties, the Court denied Plaintiff s Motion for Amended Judgment, in which Plaintiff argued that the Court erred in granting summary judgment in favor of ICP. On September,, Plaintiff filed a Notice of Appeal in the Ninth Circuit appealing from the Court s Summary Judgment Order, the Court s Judgment, and the Court s Order denying Plaintiff s Motion for Amended Judgment. On September,, ICP filed a Notice of Cross-Appeal contesting the Court s Order Re: Class Certification and the Court s denial of ICP s Motion for Reconsideration of the Order Re: Class Certification (No On April,, Plaintiff-Appellant filed her opening brief in the Ninth Circuit (Nos. -, -0. On April,, having reached a Settlement in the Lawsuit, Plaintiff and ICP jointly filed a Stipulated Motion to Voluntarily Dismiss Appeal Without Prejudice in the Ninth Circuit (Nos. -, -0, stipulating that the appeals be dismissed so that jurisdiction may re-vest in this Court to approve the Settlement, and that the dismissal shall be without prejudice to any party s reinstating the appeal within twenty-eight ( days of an Order by this Court denying the Settlement. On April,, the Ninth Circuit issued an Order (Nos. -, - 0 dismissing the appeals without prejudice to reinstatement in the event this Court fails to approve the Settlement.

10 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page 0 of Page ID #: 0 B. Investigation and Discovery Before filing the lawsuit, Class Counsel investigated and researched the facts and circumstances underlying the pertinent issues and the law applicable thereto. This required thorough discussions and interviews between Class Counsel and Plaintiff, as well as preliminary research into the various legal issues involved in the case. After conducting their initial investigation, Class Counsel determined that Plaintiff s claims were well suited for class action adjudication owing to what appeared to be a common course of conduct affecting a similarly situated group of employees. After filing the lawsuit, Class Counsel conducted a thorough investigation of the facts and claims giving rise to the action, including: ( extensive discovery, including depositions in Los Angeles and New York and written discovery, including the filing of a discovery motion; ( meeting and conferring with defense counsel; ( reviewing and analyzing time and pay records as well as the employee handbook, Plaintiff s personnel file, and other documentation; ( researching the applicable law and potential defenses; ( constructing damage models with an expert witness based on countervailing interpretations of California law; ( reviewing information provided by Defendants at the mediation that was held in this case; and ( Plaintiff interviewed dozens of class members. (Ryan Decl.. C. Settlement Efforts The parties litigated this case for over two years, and this Court granted summary judgment in favor of ICP. Due to the inherent risks associated with an appeal of this Court s order, as well as the risk on ICP s cross appeal as to the Court s class certification decision, as a result, the parties agreed to settle the lawsuit according to the terms set forth in the Class Action Settlement Agreement ( Settlement Agreement.

11 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 From Class Counsel s review of the facts, strengths and weaknesses of the case, the risks and delays posed by further litigation, and Class Counsel s own prior litigation experience, Class Counsel believe that the recovery for each class member is fair and reasonable, taking into consideration the amounts received in other wage and hour class actions, the risks inherent in litigation of this genre, and the reasonable tailoring of each class member s claim to the settlement award she or she will receive. Further, and based on the settlement negotiations, which were hard-fought and conducted in good faith and at arm s length between attorneys with substantial experience litigating class actions and wage and hour cases, the Class Action Settlement Agreement was the product of a non-collusive settlement process in which the parties were forced to make significant compromises in the interest of reaching a full and complete settlement of the lawsuit. III. SETTLEMENT AGREEMENT AND ACCOMPANYING DOCUMENTS Under the terms of the proposed Settlement Agreement, the parties have agreed that all claims brought on behalf of the class shall be fully and finally resolved for a maximum settlement amount of up to One Hundred Fifteen Thousand dollars ($, ( Maximum Settlement Amount. The Settlement Amount is non-reversionary and no portion of this Settlement Amount may revert to Defendants. (Id. The amount remaining of the Total Settlement Amount after the following deductions have been made (called the Gross Settlement Amount shall be available for distribution to Class Members who do not opt out ( Class Members :

12 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 up to one-third of the Total Settlement Amount to Class Counsel for attorneys fees, but Class Counsel is only seeking %, or $,0.00 Up to $, in litigation costs $0, to Plaintiff for her services and participation as class representative in addition to his Individual Settlement Payment; $, allocation to the PAGA claims (of which $, would be paid to the California Labor and Workforce Development Agency ( LWDA for penalties pursuant to Labor Code, et seq. Up to $, in Claims Administration costs. The balance will be distributed to the Class Members based on the total number of days she or she worked during the Class Period (the $,000.00, allocated to the PAGA Claims Class shall be allocated pro rata. (Id. At. For the Court s review and approval, attached to the Proposed Order as Exhibit A is the Notice of Proposed Class Action Settlement and Fairness Hearing and Notice of Settlement Share. These documents collectively are referred to as the Notice Packet. The parties have approved these documents, which are to be disseminated to class members consistent with the manner and timing set out in the Stipulation and Proposed Order. The parties now respectfully request that this Court approve them as well. The total costs expended by my firm were over $, A final accounting is pending. I am taking an over % loss on costs I expended in the interests of resolving this case.

13 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #:0 0 The parties have also agreed that CPT Group ( CPT shall handle the notice and claims administration (Settlement Agreement and the parties respectfully request this Court to appoint CPT Group to handle those procedures. IV. THE TWO-STEP APPROVAL PROCESS Any settlement of class action litigation must be reviewed and approved by the Court. This is accomplished in two steps: ( An early (preliminary review by the trial court, and ( a detailed review after the notice has been distributed to the class members for their comments or objections. In this regard, the Manual for Complex Litigation (Second explains: A two step process is followed when considering class settlements If the proposed settlement appears to be the product of serious, informed, noncollusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, and falls within the range of possible approval, then the court should direct that notice be given to the class members of a formal fairness hearing, at which evidence may be presented in support of and in opposition to the settlement. Manual for Complex Litigation (Second ( at 0.. The preliminary approval of the class action settlement by the trial court is simply a conditional finding that the settlement appears to be within the range of acceptable settlements. North County Contractor s Assn., Inc. v. Touchstone Ins. Services Cal. App. th 0, 0- (; Federal Manual for Complex Litigation, Second ( MCL d 0. ( [P]reliminary approval is appropriate if the agreement is fair, reasonable, and adequate under the circumstances.. Thus, the preliminary approval of the class action settlement by the trial court is simply a conditional finding that the settlement appears to be within the range of acceptable settlements.

14 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 A review of the preliminary approval criteria demonstrates a substantial basis for granting the preliminary approval requested by the instant Motion and proceeding to a full settlement hearing. V. THE SETTLEMENT IS FAIR AND ADEQUATE As a matter of public policy, courts both encourage the use of the class action device and favor settlement over continued litigation. See, e.g., Linder v. Thrifty Oil Co. Cal. th, (00 ( Courts have long acknowledged the importance of class actions as a means to prevent a failure of justice in our judicial system. ; State v. Levi Strauss & Co. Cal. d 0, (; Class Plaintiffs v. City of Seattle F.d, ( ( [S]trong judicial policy... favors settlements, particularly where complex class action litigation is concerned. ; Newberg,.. Moreover, courts presume the absence of fraud or collusion in the negotiation of a settlement unless evidence to the contrary is offered. In short, there is a presumption that the negotiations were conducted in good faith. Newberg,.; Rodriguez v. West Publ. Corp. 0 U.S. Dist. LEXIS, - (C.D. Cal. August 0, 0; In re Chicken Antitrust Litigation 0 F. Supp., (N.D. GA 0; Priddy v. Edelman F.d, (th Cir. ; Mars Steel Corp. v. Continental Illinois National Bank and Trust Co. F.d, (th Cir.. Courts do not substitute their judgment for that of the proponents, particularly when settlement has been reached by experienced counsel familiar with the litigation. Rodriguez, 0 U.S. Dist. LEXIS at ; Hammon v. Barry F. Supp. 0 (D.D.C. 0; In re Armored Car Antitrust Litigation F. Supp (N.D. GA ; Sommers v. Abraham Lincoln Federal Savings & Loan Association F.R.D. (ED PA.

15 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 In Kullar v. Foot Locker Retail, Inc., Cal. App. th, (0, the court laid out several factors that should be analyzed in determining if a class action settlement should be approved. These factors include: ( the strength of plaintiffs case; ( the risk, expense, complexity and likely duration of further litigation; ( the risk of maintaining class action status through trial; ( the amount offered in settlement; ( the extent of discovery completed and stage of the proceedings; ( the experience and views of counsel; ( the presence of a governmental participant; and ( the reaction of the class members to the proposed settlement. The Settlement here satisfies each of these factors. Class Counsel conducted extensive discovery before entering into meaningful settlement negotiations in this matter. (Ryan Decl.,, -. This discovery permitted Class Counsel to fairly evaluate the strengths of the case and the risks associated with ongoing litigation. Class Counsel is experienced in the handling of wage and hour class actions and supports this Settlement. (Ryan Decl., -. A. The Strength of Plaintiff s Case. The claims in the certified class action included failure to provide meal and rest breaks, failure to reimburse for reasonable expenses, and the derivative claims. (Ryan Decl.,. B. The Risks Associated with the Merits. As with all litigation, there are risks that a party will not prevail on the merits. In this case, Plaintiff contends that the class members were not exempt outside salespersons. Defendants contend the class members were exempt, which this Court agreed with in granting their motion for summary judgment. If Defendants contentions are proven true at the Ninth

16 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 Circuit, the likely outcome of this claim would be no recovery for the class members. C. The Risks Associated with the PAGA Penalties. Labor Code. gives aggrieved employees the right to recover civil penalties for specific Labor Code violations by way of a civil action. The PAGA provides a penalty amount of one hundred dollars ($00 for each aggrieved employee per pay period for the initial violation and two hundred dollars ($0 for each aggrieved employee per pay period for each subsequent violation. Labor Code (e(. However, if a civil penalty is provided in a specified amount by the Labor Code section relating to the underlying alleged Labor Code violation, that amount shall apply. (Id. At. The PAGA also gives the Court discretion to award any lesser amount than the maximum civil penalty. (Id. As such, there is a fair amount of risk associated with PAGA claims. (Ryan Decl., -. Based on this analysis, Class Counsel believes that this settlement is fair and reasonable and in the best interest of the Class. (Ryan Decl., passim. D. The Risk, Expense, Complexity and Likely Duration of Any Litigation. Given the risks outlined above, the issues in this case were complex and the risk for Plaintiff and the class members associated with this litigation was high. (Ryan Decl., -. First, the Class would have had to prevail on its appeal and the cross appeal before the th Circuit. Then, assuming the appeal was successful, the Class would have had to prevail in a trial in the District Court. A class trial would have required the retention of expensive expert witnesses, the 0

17 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 accrual of extensive litigation costs, and the parties would have had to spend a substantial amount of time. (Ryan Decl.,. Finally, given the complexity and unsettled nature of the issues, it is likely that any outcome at trial would have resulted in a lengthy and costly appeal. An appeal would result in further delay for the class members who have already waited years for resolution in this matter. E. The Risk of Maintaining Class Action Status Through Trial. In class actions, decertification is always a possibility. There is always a risk that a trial of this magnitude can become unmanageable. (Ryan Decl.,. Given cases like Duran v. U.S. Bank Nat. Assn., Cal. th, ( that deal with the complexity of using statistical samples for litigating class claims, decertification is a real risk in any class action of any size that Class Counsel must take into account. Moreover, recent decisions denying class certification presented an additional risk that ICP s cross appeal would be successful. See, e.g., Cole v. CRST, Inc., F.R.D., (C.D. Cal., appeal denied (July, ( As Plaintiff cannot show that Defendant had a policy of preventing drivers from taking meal and rest breaks, and because there is evidence in the record of drivers taking meal and rest breaks without interference from Defendant, individualized inquiries predominate. In order to determine why some drivers took meal and rest breaks while others did not require individualized inquiries as to each driver. F. The Amount Offered in Settlement. There can be no doubt that this Settlement is the result of vigorous, adversarial, non-collusive, and arms-length negotiations between the parties. In order to determine the approximate potential damages which would be owed to each of the class members, Class Counsel analyzed the

18 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 time and payroll data for Plaintiff and Defendants provided Class Counsel with time and payroll information for a sampling of the class members. (Ryan Decl., -. By analyzing this information, Class Counsel was able to estimate the full value of the case if Plaintiff were to prevail at trial. There are total class members. The amount paid to each class member was approximately $.00 per hour. (Id.. Class Counsel analyzed the likelihood of success on the merits, and realized the extreme risks associated with pressing forward with an appeal as to this Court s summary judgment motion in favor of ICP, as well as ICP s cross appeal of this Court s order granting class certification. (Id. at. A settlement was reached by negotiating a compromise number with Defense counsel based on the overall value of the case and the chances of prevailing at the Ninth Circuit on appeal and cross appeal. Further, considering that the appellate process would have taken over a year, coupled with the low probabilities of prevailing on both appeals, Class Counsel took into account the time value of money, and that the class will get paid something now, versus the likely outcome of nothing later. (Id. at. After taking into account the likelihood of success on each claim, Class Counsel determined that the settlement amount of $,000 was fair and reasonable. Under the Settlement, each of the class members will receive approximately $. before taking into account attorney s fees and costs, enhancement awards to the named Plaintiff of this Action, costs of claims administration, interest, penalties, and the PAGA award (this number will vary depending on the number of workweeks worked during the Class Period. (Ryan Decl., 0. Plaintiff feels that this Settlement is fair, reasonable, and advantageous to the class. (Ryan Decl.,. To summarize, the Settlement here is fair because it provides a

19 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 substantial payment to each class member for releasing her or her claims (see Ryan Decl., -; -,, discussing the Kullar analysis; extinguishes the risk of litigation (see Ryan Decl., discussing the risk, expense and likely duration of further litigation as well as risk of maintaining class action status through trial; and provides a fair and adequate distribution of the settlement proceeds whereby the funds are allocated to class members proportionally based on their total days worked during the class period. (Ryan Decl.,,. As detailed at length in the accompanying Declaration of Andrew Ryan, the settlement is the result of extensive settlement negotiations between the parties, conducted at arm s length, and informed by substantial factual and legal investigations. (Ryan Decl., passim. Throughout this case, class members have been represented by experienced counsel with many years of experience in employment class action litigation. (Ryan Decl., -. Class Counsel have devoted a considerable amount of time to the prosecution of this case, including but not limited to, ( extensive discovery, including depositions and written discovery; ( meeting and conferring with defense counsel; ( reviewing and analyzing time and pay records as well as the employee handbook, Plaintiff s personnel file, and other documentation; ( researching the applicable law and potential defenses; ( constructing damage models based on countervailing interpretations of California law; ( reviewing information provided by Defendants at the mediation that was held in this case; and ( Plaintiff interviewed dozens of class members following the disclosure of their contact information. (Ryan Decl.,. Among those matters considered during the course of settlement negotiations were the strength of Plaintiff s case versus the amounts offered

20 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 in settlement; the risks, expenses, and length of further litigation, including class certification and the appeals process; the present state of the law as it applies to wage and hour class actions, particularly in light of Brinker Restaurant Corp. v. Super Ct. Cal th, 00 (; the present value of a settlement versus the long wait necessitated by any potential judgment in class members favor; the burdens of proof necessary to establish liability against Defendants; and Defendants defenses to the action. (Ryan Decl.,. These factors each indicated that the interests of class members are best served by a settlement of this action in the manner and upon the terms set forth in the Settlement Agreement. The Settlement Agreement confers a substantial benefit on the class of $, Moreover, the settlement awards for each class member will be tailored to the extent to which she or she was affected by Defendants alleged wage and hour violations. (Id. at 0. Class Counsel believes that the settlement is fair and reasonable and serves the best interests of the class members. (Id., passim. Although the recommendations of counsel proposing the class settlement are not conclusive, the Court can properly take the recommendations into account, particularly if counsel have been involved in litigation for some period of time, appear to be competent, and have experience with this type of litigation, and significant discovery has been completed. See Newberg,.. VI. THE CLASS REPRESENTATIVE ENHANCEMENT IS FAIR AND REASONABLE It is appropriate to provide a relatively modest additional incentive payment to the class representative. See Newberg,.; Van Vranken v. Atlantic Richfield Co. 0 F.Supp. (N.D. Cal. ; Bogosian v. Gulf Oil

21 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 Corp. F.Supp. (E.D. Pa. (award of $, each to two class representatives in antitrust case; Bryan v. Pittsburgh Plate Glass Co.(PPG Industries, Inc. F.R.D.,, (W.D. Pa. aff d F.d (d Cir., cert. denied in Abate v. Pittsburgh Plate Glass Co. U.S. 00 ( (payments of $,00.00 to class members who aided in advancing Title VII case. Plaintiff is entitled to a reasonable service payment for her effort and initiative in bringing and helping to prosecute this class action. Plaintiff spent a considerable amount of time better apprising herself of her rights, deciding whether remedial action should be taken, how it should be taken, searching for attorneys, and finally contacting Class Counsel, who spent many hours with Plaintiff discussing her case and the law. (Ryan Decl., 0-. In the end, Plaintiff decided to vindicate not only her own rights but also those of her co-workers by filing a class action lawsuit. The courage it took to do this should not be underestimated. By suing Defendants, Plaintiff increased her risk of retaliation by prospective employers. (Id. at. Plaintiff has now cost Defendants a substantial sum of money, and such conduct will not be lost on a prospective employer who has to choose between an applicant who has never sued a prior employer and one who has. (Id at. This risk is particularly real in the information age, where employers can, more easily than ever, perform background checks of prospective employees, sometimes with the stroke of a key. (Id.. But Plaintiff did not allow her fears of the potential repercussions of being a class representative deter her from acting for the benefit of class members. (Id. at. To the contrary, Plaintiff has been intimately involved in this case since its inception. (Id.. She has devoted a substantial amount

22 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 of time to helping Class Counsel effectively develop and prosecute this action at every stage of the litigation. (Id.. Both before and after the filing of this lawsuit, Plaintiff conferred with Class Counsel on numerous occasions to discuss every aspect of this case; Plaintiff provided Class Counsel with information about Defendants and about the industry generally, reviewed documents, identified witnesses, consulted Class Counsel throughout the litigation repeatedly and at length, participated in the mediation process, monitored the progress of the litigation with Class Counsel, and reviewed and signed the settlement agreement. (Id.. Plaintiff has spent a significant amount of time with Class Counsel detailing her knowledge of Defendants practices and helping Class Counsel with the prosecution of this action. (Id.at. She has diligently, adequately, and fairly represented class members, and has not placed her interests above any member of the putative class. (Id.. This sort of payment to a class representative has been a common feature of settlements negotiated by Class Counsel and has been routinely approved by trial courts. (Id.. In light of the foregoing, Class Counsel believes that the incentive award in the amount of $0, is fair and reasonable. (Id. at. VII. THE PROPOSED CLASS NOTICE PROVIDES ADEQUATE NOTICE TO THE CLASS MEMBERS. Constitutional due process requires that class members be provided with notice sufficient to give them an opportunity to be heard in the proceedings. Mullane v. Central Hanover Bank & Trust Co. U.S. 0 (0. Proper notice must provide the class members with sufficient information to make an informed decision as to whether to accept or object to the settlement. Id. at. The notice must apprise the class members of

23 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #:0 0 the pendency of the action; reasonably convey information regarding the settlement and the class members rights, entitlements, and obligations; and afford class members the opportunity to present their objections. Id. The Class Notice, attached to the Proposed Order as Exhibit A, meets constitutional standards because it provides all the information a reasonable person would need to make a fully informed decision about the settlement. It will notify all class members of the terms of the settlement, of its effect on their rights, of their options as class members (i.e., participate, object, opt out, do nothing, and of the consequences of exercising those options. (Ryan Decl., -. Moreover, the Class Notice will specifically direct any class members who have questions or concerns to contact the settlement administrator, CPT Group. (Id.. The standard for determining the adequacy of notice is whether the notice has a reasonable chance of reaching a substantial percentage of the class members. Cartt v. Superior Court 0 Cal.App.d 0, (. The Judicial Council of California s Deskbook on the Management of Complex Civil Litigation (Matthew Bender 0,. notes that individual notice by mail is preferred when possible and dissemination of combined certification/settlement notice is a common and accepted practice. In re Vitamin Cases 0 Cal.App.th, (0. Here, the Class Notice will be sent via first-class mail to each class member. (Ryan Decl., 0. If any Notice Packets are returned undeliverable without a forwarding address, the Claims Administrator will, within five calendar days of their being returned, use the national change of address database and perform a skip trace to locate the class member and mail a new Notice Packet to him or her at the correct address. (Id.. Thus, most if not all class members will receive the Notice Packet.

24 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 Pursuant to controlling authority, the proposed Class Notice and method of distribution fully comport with due process requirements. Therefore, the Court should approve the Class Notice and direct that it be distributed as proposed herein. VIII. THE STIPULATED AWARD OF ATTORNEYS FEES AND COSTS IS REASONABLE AND SHOULD BE APPROVED. Under the Stipulation, subject to approval by this Court, Class Counsel will seek an award of fees equal to one-third of the of the Total Gross Settlement Amount, but are only requesting % amounting to $,0.00 plus $, for litigation costs. The costs requested for reimbursement are discounted by at least % of the over $, in costs incurred by my firm in the handling of this matter, which includes mediation fees, expert witness fees, extensive travel costs to the Bay Area and New York, and process servers. The requested fees are fair compensation for a law firm involved in undertaking complex, risky, expensive, and time-consuming litigation solely on a contingent basis. (Ryan Decl.. Defendants will not oppose Class Counsel s fee request. The Ninth Circuit has recognized that an appropriate method for awarding attorneys fees in class actions is to award a percentage of the common fund created as a result of the settlement. Vincent v. Hughes Air West, Inc. F.d, (th Cir.. The purpose of the common fund/percentage approach is to spread litigation costs proportionally among all the beneficiaries so that the active beneficiary does not bear the entire burden alone. Id. Accordingly, under Ninth Circuit law, the District Court has discretion to choose either the percentage-of-the-fund method or the lodestar method. In re Wash. Pub.Power Supply Sys. Sec. Litigation F.d, - (th Cir..

25 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 Several courts have, however, expressed frustration with the lodestar approach for deciding fee awards, which usually involves wading through voluminous time records. Thus, the percentage approach can be preferable to the lodestar in certain situations because: ( it aligns the interests of class counsel and absent class members; ( it encourages efficient resolution of the litigation by providing an incentive for early, yet reasonable, settlement; and ( it reduces the demands on judicial resources. In re Activision Securities Litigation, F. Supp. at -. The Ninth Circuit has used the percentage of the common fund approach to determine the award of attorneys fees. In re Pacific Enterprises Securities Litigation F.d, - (th Cir. (approving attorneys fee of /% of settlement fund. Class Counsel s application for attorneys fees in light of the facts and circumstances surrounding this case is well within the range of reasonableness. Historically, courts have awarded percentage fees in the range of % to 0% of the common fund, depending on the circumstances of the case. Newberg, at.0; see also In re Activision Securities Litigation, F. Supp. at. According to Newberg: No general rule can be articulated on what is a reasonable percentage of a common fund. Usually 0% of the fund is the upper limit on a reasonable fee award from a common fund in order to assure that the fees do not consume a disproportionate part of the recovery obtained for the class, although somewhat larger percentages are not unprecedented. Newberg,.0. Newberg further notes: [A]chievement of a substantial recovery with modest

26 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 hours expended should not be penalized but should be rewarded for considerations of time saved by superior services performed. Id. at - 0:-. The attorneys fees request provided for in the Stipulation is commensurate with judicial precedent. Both state and federal courts regularly approve fee awards equal to or greater than the percentage requested in this case. See, e.g., In re Pacific Enterprises Securities Litigation F.d, (th Cir. (affirming an award equal to % of the common fund; In re Activision Securities Litigation F.Supp., (N.D. Cal. (awarding plaintiffs counsel.% of the common fund created to settle the litigation; In re Ampicillin Antitrust Litigation F.Supp. (D. D.C. (awarding % of $. million settlement fund; Beech Cinema, Inc. v. Twentieth-Century Fox Film Corp. 0 F. Supp. (S.D.N.Y., aff d F.d 0 (d Cir. 0 (approximately % of the settlement fund awarded; Van Gemert v. Boeing Co. F.Supp., (S.D. N.Y. (awarding % of settlement fund; Parker v. City of Los Angeles Cal.App.d, - ((affirming fee award to counsel of one-third (/ of recovery achieved. In wage and hour class actions in particular, California trial courts have customarily approved attorney s fees consistent with or greater than the percentage of the common fund requested in this case. See Evans v. Coca- Cola, Los Angeles County Super. Ct. Case No. BC 0 (Hon. Richard C. Hubbell (Dec. 0 (approving an award of attorneys fees of at least - /% of the settlement; see also Estrada v. Dr. Pepper/Seven-Up, Los Angeles County Super. Ct. Case No. BC (May 0 (Hon. Anthony J. Mohr; Moreno v. Miller Brewing, Los Angeles County Super.Ct. Case No.BC 0 (April 0 (Hon. David M. Minning; Josiah Eaton v. Adolph

27 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 Coors Company Orange County Super. Ct. Case No. 0CC000 (0 (Hon. Stephen J. Sundvold; Kimbell v. Abercrombie & Fitch Stores, Inc., Los Angeles County Super.Ct. Case No.BC (Sept. 0 (Hon. Kenneth R. Freeman; Daum v. Claim Jumper Restaurants, Orange County Super.Ct. Case No.0CC0 (0 (Hon. Ronald L. Bauer; Moore v. IKEA, Los Angeles County Super.Ct. Case No.BC (Sept. 0 (Hon. Peter Lichtman; Big Lots Overtime Cases, San Bernardino County Super. Ct. JCCP Proceeding No. (Feb. 0 (Hon. Walter L. Blackwell, III; Fitzpatrick v. Baja Fresh, Los Angeles Super.Ct. Case No. BC (Hon. Anthony J. Mohr (Mar. 0. Here, Class Counsel have borne the entire risk and costs of litigation and will not receive any compensation until recovery is obtained. (See Ryan Decl., -. The Court should also consider the benefit obtained by Class Counsel on behalf of class members. Thus, the requested award for Class Counsel is reasonable. IX. ACTION REQUESTED AS A PART OF THE MOTION FOR PRELIMINARY APPROVAL The parties respectfully request this Court, as part of the preliminaryapproval process, to grant the following relief and make the following orders:. Review and approve the Settlement Agreement;. Review and approve the Class Notice and Notice of Settlement Share, attached to the Settlement Agreement;. Consider and determine that the proposed class action settlement as set forth in the Stipulation preliminarily appears fair, reasonable, and adequate;. Approve and appoint CPT Group as the claims administrator to

28 Case :-cv-0-dmg-dtb Document - Filed 0/0/ Page of Page ID #: 0 handle the notice and claims procedures as set forth in the Stipulation;. Order Defendants to disclose to CPT Group only, and not Class Counsel, the names, last-known addresses, and social security numbers of class members as set forth in the Stipulation;. Order that CPT Group mail the Class Notice and Notice of Settlement Share to class members; and. Set a date for the Final Approval Hearing. Date: June 0, By: /s/ Andrew T. Ryan Andrew T. Ryan Counsel for Plaintiff DRIA MOORE