Case 3:16-cv JST Document 44 Filed 11/30/17 Page 1 of 22

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1 Case :-cv-0-jst Document Filed /0/ Page of Shaun Setareh (SBN ) shaun@setarehlaw.com H. Scott Leviant (SBN 0) scott@setarehlaw.com SETAREH LAW GROUP Wilshire Boulevard, Suite 0 Beverly Hills, California 0 Telephone: (0) - Facsimile: (0) -00 Attorneys for Plaintiff JIMMIE JARRELL UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 0 JIMMIE JARRELL, an individual, on behalf of himself and all others similarly situated, vs. Plaintiff, AMERIGAS PROPANE, Inc.; a Pennsylvania corporation; and DOES through 0, inclusive, Defendants. Case No.: :-cv-0-jst CLASS ACTION PLAINTIFF S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: January, Time: :00 p.m. Courtroom: Courtroom th Fl. Judge: Hon. Jon S. Tigar Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..

2 Case :-cv-0-jst Document Filed /0/ Page of TABLE OF CONTENTS I. INTRODUCTION... II. THE NOTICE PROCESS WAS SUCCESSFULLY COMPLETED AFTER PRELIMINARY APPROVAL... 0 III. BACKGROUND... IV. SUMMARY OF SETTLEMENT TERMS... V. THE SETTLEMENT MERITS FINAL APPROVAL... A. Plaintiff s Claims Merit Class Action Treatment.... Numerosity.... Commonality and Predominance of Common Issues.... Typicality.... Adequate Representation Superiority... 0 B. The Settlement Falls Squarely Within the Range of Reasonableness and Should Be Finally Approved.... The Value of the Settlement to Class Members Is Fair, Reasonable and Adequate.... The Agreed Upon Fees and Costs Are Reasonable... a) Plaintiff seeks reasonable fees.... b) Plaintiff seeks reimbursement of reasonable costs.... The Enhancement Award Is Reasonable... VI. SUMMARY OF TOTAL REQUESTED DISTRIBUTION... VII. CONCLUSION... Case No.: :-cv-0-jst Page i Jarrell v. Amerigas Propane, Inc., et al..

3 Case :-cv-0-jst Document Filed /0/ Page of TABLE OF AUTHORITIES 0 FEDERAL CASES Acosta v. Trans Union LLC, F.R.D. (C.D. Cal. 0)... Armstrong v. Board of School Directors of the City of Milwaukee, F.d 0 (th Cir. 0)... Baldwin & Flynn v. Nat l. Safety Associates, F.R.D. (N.D. Cal. )... Blackie v. Barrack, F.d (th Cir. )...,, Cal. Rural Legal Assistance, Inc. v. Legal Servs. Corp., F.d (th cir. 0)... Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., F.d (th Cir. 0)..., Eisen v. Carlisle & Jacquelin, U.S. ()... Elkins v. Equitable Life Ins. Of Iowa, WL (M.D. Fla. )... Hammon v. Barry, F.Supp 0 (DDC 0)... Hanlon v. Chrysler Corp., 0 F.d 0 (th Cir. )...,,, 0 Hanon v. Dataproducts Corp., F.d (th Cir. )... 0 In re Armored Car Anti-Trust Litigation, F.Supp (ND GA )... In re Computer Memories Sec. Litig., F.R.D. (N.D. Cal. )... In re Immune Response Securities Litigation, F.Supp.d (S.D. Cal. 0)... In re Southern Ohio Correctional Facility, F.R.D. 0 (S.D. Ohio )... Ingram v. The Coca-Cola Co., 0 F.R.D. (N.D. Ga. 0)... Lewis v. Gross, F.Supp. (E.D.N.Y. )... Linney v. Cellular Alaska Partnership, WL 00 (N.D. Cal. )... Mars Steel Corp. v. Continental Illinois National Bank and Trust Co., F.d (th Cir. )... Officers for Justice v. Civil Service Commission of City and County of San Francisco, F.d (th Cir. )... Paul, Johnson, Alston & Hunt v. Graulty, F.d (th Cir. )... Pridd v. Edelman, F.d (th Circuit )... Riordan v. Smith Barney, F.R.D. 0 (N.D. Ill. )... Six Mexican Workers v. Arizona Citrus Growers, 0 F.d 0 (th Cir. 0)... Case No.: :-cv-0-jst Page ii Jarrell v. Amerigas Propane, Inc., et al..

4 Case :-cv-0-jst Document Filed /0/ Page of Sommers v. Abraham Lincoln Federal Savings & Loan Association, F.R.D. (ED PA )... Staton v. Boeing Co., F.d (th Cir. 0)..., Strube v. American Equity Inv. Life Ins. Co., F.R.D. (M.D. Fla. 0)... Valentino v. Carter-Wallace, F.d (th Cir. )... Van Bronkhorst v. Safeco Corp., F.d (th Cir. )... Van Vranken v. Atl. Richfield Co., 0 F. Supp. (N.D. Cal. )... Vizcaino v. Microsoft Corp., 0 F.d 0 (th Cir. 0)... Wang v. Chinese Daily News, F.R.D. 0 (C.D. Cal. 0)..., Zinser v. Accufix Research Institute, Inc., F.d (th Cir. 0)... 0 CALIFORNIA CASES Duran v. US Bank Nat l Ass n, Cal. th ()... STATUTES Labor Code... RULES Fed. R. Civ. P.... passim TREATISES Manual for Complex Litigation Second 0. ()... OTHER AUTHORITIES Findings of the Study of California Class Action Litigation, Case No.: :-cv-0-jst Page iii Jarrell v. Amerigas Propane, Inc., et al..

5 Case :-cv-0-jst Document Filed /0/ Page of 0 TO THE COURT, TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: Please take notice that on January,, at :00 p.m., or as soon thereafter as counsel may be heard, in Courtroom of the United States Courthouse, located at 0 Golden Gate Avenue, San Francisco, CA 0, Plaintiff JIMMIE JARRELL ( Plaintiff ) will and hereby does move the Court for an order granting final approval of the STIPULATION RE: SETTLEMENT OF CLASS AND COLLECTIVE ACTION ( Stipulation ) reached with Defendant AMERIGAS PROPANE, INC. ( Defendant or AmeriGas ), a true and correct copy of which is attached as Exhibit A to the Declaration of H. Scott Leviant submitted herewith. Specifically, Plaintiff moves for an order to:. grant approval of the terms of the Stipulation as fair, reasonable and adequate under Rule (e) of the Federal Rules of Civil Procedure, including the amount of the settlement; the amount of distributions to class members; the procedure for giving notice to class members; the procedure for opting out of the settlement; and the amounts allocated to the enhancement payments and attorney s fees and costs;. certify for settlement purposes the Settlement Class described in the Stipulation as follows: all Persons who were employed by AmeriGas as a Service Technician (a non-exempt or hourly position) in California from February,, through the date of preliminary approval (August, ).. appoint Plaintiff as representative for the Settlement Class;. appoint Setareh Law Group as counsel for the Settlement Class;. enter judgment on the terms specified in the Stipulation and approved by the Court. Plaintiff s motion is based on this Notice, the following Memorandum of Points and Authorities, the Declarations of Shaun Setareh and H. Scott Leviant submitted herewith, the Declaration of Plaintiff Jimmie Jarrell submitted herewith, all other pleadings and papers on file in this action, and any oral argument or other matter that may be considered by the Court. Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..

6 Case :-cv-0-jst Document Filed /0/ Page of 0 I. INTRODUCTION MEMORANDUM OF POINTS AND AUTHORITIES This is a putative wage and hour class action on behalf of non-exempt employees employed by AMERIGAS PROPANE, INC. ( Defendant or AmeriGas ) who were employed by AmeriGas as Service Technicians (a non-exempt or hourly position) in California from February,, through the date of preliminary approval (August, ). The core issues in the case were based on allegations by Named Plaintiff JIMMIE JARRELL ( Plaintiff ) that on call time worked by Service Technicians was not correctly compensated, travel time was not correctly compensated, Defendant did not provide legally compliant meal periods and rest breaks, and, as a result, wage statements provided were inaccurate and final wages were not timely paid. Defendant disputes these claims. After discovery, the exchange of data informally, and mediation, Plaintiff and Defendant (Plaintiff and Defendant collectively referred to herein as the Parties ) reached a proposed class action settlement valued at $00,000 for several hundred putative class members, and this Court on August, preliminarily approved that proposed settlement. Both Parties believe the Settlement to be fair and reasonable, to adequately reflect the potential liability, and to be the result of a thorough factual and legal analyses and arms-length negotiations. In addition to the independent reasonableness of the settlement, it is substantially superior in value to a settlement approved by Judge Wu in Shields v. AmeriGas Propane, Inc., Central District of California Case No. -cv--gw-pjw ( Shields ), a matter asserting similar wage and hour claims for relief on behalf of a proposed class of propane delivery drivers employed by AmeriGas. Through this Motion, Plaintiff requests certification of a Settlement Class pursuant to Federal Rule Civil Procedure and final approval of the proposed class action settlement. II. THE NOTICE PROCESS WAS SUCCESSFULLY COMPLETED AFTER PRELIMINARY APPROVAL The Parties have fulfilled the class notice procedures set forth in the Court s Preliminary Approval Order and the Class Members responses have been overwhelmingly positive. The claims administrator, Rust Consulting ( Claims Administrator or RUST ), sent individual notices to Class Members on Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..

7 Case :-cv-0-jst Document Filed /0/ Page of 0 September,. (Declaration of Amanda J. Myette [ Myuette Decl. ],.) The list of Class Members utilized by RUST was prepared by () obtaining a list of Class Members from Defendant, and () updating all addresses through the National Change of Address System. (Myette Decl., -0.) RUST mailed the Current Employee Notice to class members who, based on the data described above, were identified as current AmeriGas employees as of the date of preliminary approval. (Myette Decl.,.) The remaining class members were mailed the Former Employee Notice. (Id.) Of the Class Notices that were mailed, the Claims Administrator received undeliverable Class Notices. (Myette Decl.,.) Address traces were performed and updated addresses were obtained for 0 of the Class Members. (Myette Decl.,.) Class Members were also provided access to information about the settlement in this matter through a dedicated website and toll free telephone number. (Myette Decl.,,.) Seventy-seven Claim Forms were received from Former Employees, or nearly half of the Former Employees. (Myette Decl.,.) No Class Members have objected to the settlement. (Myette Decl.,.) Only three Former Employee Class Members have requested exclusion. (Myette Decl.,.) RUST s costs for administration are on track to meet the estimated administration cost of $,000. (Myette Decl.,.) III. BACKGROUND On February,, Plaintiff filed this Litigation in the Superior Court of the State of California for the County of Alameda as a putative Rule class action on behalf of himself and others allegedly similarly situated in California and a putative collective action under the federal Fair Labor Standards Act ( FLSA ) on behalf of those allegedly similarly situated in California. Plaintiff filed a First Amended Complaint on March,, in which Plaintiff alleged that AmeriGas had violated certain state and federal employment laws, including without limitation the FLSA, the California Labor Code, and the California Business and Professions Code, by reason of the following alleged conduct: () failure to provide meal periods; () failure to provide rest periods; () failure to pay hourly wages, () failure to provide accurate written wage statements, () failure to timely pay all final wages; () unfair competition; () civil penalties; and () failure to pay employees for all hours worked. (Declaration of H. Scott Leviant Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..

8 Case :-cv-0-jst Document Filed /0/ Page of 0 [ Leviant Decl. ], at.) On March,, the Litigation was removed on AmeriGas motion to the United States District Court for the Northern District of California. (Leviant Decl., at.) Following the filing of the Complaint and the exchange of significant amounts of documents and information, counsel for AmeriGas and Class Counsel, both of whom are experienced in these types of cases, began a series of arms-length negotiations which led to the scheduling of a mediation session with a professional mediator, Mark Rudy. (Leviant Decl., at.) On January,, the Parties held an allday mediation session with Mr. Rudy and reached the agreement that is the subject of this Motion. (Leviant Decl., at.) The Stipulation is intended to result in the creation of a settlement class comprised of all Persons who were employed by AmeriGas as a Service Technician (a non-exempt or hourly position) in California from February,, through the date of preliminary approval. (Leviant Decl., at.) There are Settlement Class Members. (Id.) Solely for the purpose of settling this case, the Parties stipulate and agree that the requirements for establishing class and collective action certification with respect to this class have been met and are met. (Leviant Decl., at.) If this Settlement is not approved by the Court for any reason, AmeriGas reserves its rights to contest class and/or collective action certification. (Id.) This Stipulation, if approved by the Court, will result in the termination with prejudice of the Litigation through the entry of the Judgment, and the release of all Released Claims for all Class Members. (Id.) The Class Representative will also execute a general release of all claims. (Id.) IV. SUMMARY OF SETTLEMENT TERMS The full terms of the settlement are set forth in the Stipulation. The primary material terms are as follows: (a) The Settlement Class is: all Persons who were employed by AmeriGas as a Service Technician (a non-exempt or hourly position) in California from February,, through the date of preliminary approval (August, ). (Stipulation,.,.0.) Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..

9 Case :-cv-0-jst Document Filed /0/ Page of 0 (b) (c) (d) Defendant agrees that $00, represents the maximum amount that it will pay out under this Stipulation, inclusive of the following: (a) Maximum Settlement Portion for Payments to Participating Class Members; (b) the maximum gross amount for Class Counsel s attorneys fees to be paid in accordance with the terms set forth in Paragraph.., which is $,0; (c) the maximum gross amount for all of Class Counsel s and the Class Representative s taxable litigation costs and associated expenses, which is $,000; (d) the anticipated gross amount for claims administration costs, which is $,000; (e) the maximum gross amount for the enhancement payments to be made by AmeriGas to the Class Representative, in accordance with the terms set forth in Paragraph.., which is a maximum $0,000; (f) the maximum gross amount for payment to the California Labor Workforce Development Agency as part of the consideration for the release of all Released Claims under the California Private Attorney Generals Act of 0, codified at California Labor Code sections et seq., which is $0,000; and (g) Payroll Taxes. (Stipulation,..) Each current employee Class Member who does not opt out will be paid his/her share of the settlement, subject to certain taxes and withholdings, and each former employee Class Member who submits a valid claim form and does not opt out will be paid his/her share of the settlement, subject to certain taxes and withholdings. (Stipulation,...) Class Counsel will not seek an amount greater than $,0 for attorneys fees. (Stipulation,...) (e) Class Counsel will not seek an amount greater than $,000 for litigation costs. (Stipulation,...) It is anticipated that the total requested costs will not exceed $,000. Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..

10 Case :-cv-0-jst Document Filed /0/ Page 0 of 0 (f) (g) The Class Representative enhancement award will be requested in the amount of $0,000. (Stipulation,...) If a Class Member has not cashed his or her check within sixty (0) days of issuance, the Claims Administrator shall send the Class Member in question a postcard reminder about the deadline for cashing the check and information on how to request a replacement check. The funds associated with any checks that are not properly or timely negotiated within ninety (0) days from the date of mailing shall be deposited by the Claims Administrator into the State of California Department of Industrial Relations Unclaimed Wages Fund with the identity of the Participating Claimants to whom the funds belong. (Stipulation,...) (Leviant Decl., 0.) A true and correct copy of the JOINT STIPULATION OF CLASS ACTION SETTLEMENT is attached hereto as Exhibit A. V. THE SETTLEMENT MERITS FINAL APPROVAL The law favors settlement, particularly in class actions and other complex cases, where substantial resources can be conserved by avoiding the time, cost, and rigors of formal litigation. Van Bronkhorst v. Safeco Corp., F.d, 0 (th Cir. ). These concerns apply in a case such as this, where allegedly wrongful practices potentially affected a few hundred employees, in relatively small amounts. Any settlement of class litigation must be reviewed and approved by the Court. This is done in two steps: () an early (preliminary) review by the Court, and () a final review after notice has been distributed to the class for their comment or objections. The Manual for Complex Litigation Second states at 0. (): A two-step process is followed when considering class settlements if the proposed settlement appears to be the product of serious, informed, non-collusive 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. When parties reach a settlement agreement prior to class certification, courts must peruse the proposed Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..

11 Case :-cv-0-jst Document Filed /0/ Page of 0 compromise to ratify both the propriety of the certification and the fairness of the settlement. Acosta v. Trans Union LLC, F.R.D., (C.D. Cal. 0). The first step is a preliminary, pre-notification hearing to determine whether the proposed settlement is within the range of possible approval. This hearing is not a fairness hearing; its purpose, rather is to ascertain whether there is any reason to notify the class members of the proposed settlement and to proceed with a fairness hearing. Armstrong v. Board of School Directors of the City of Milwaukee, F.d 0, (th Cir. 0) [quoting Manual for Complex Litigation s., at - (West )]. [T]he district court must assess whether a class exists, Staton v. Boeing Co., F.d, (th Cir. 0), i.e., whether the lawsuit qualifies as a class action under Rule. See, e.g., Hanlon v. Chrysler Corp., 0 F.d 0, 0 (th Cir. ) (reviewing settlement to ensure compliance with requirements of Rule (a) and Rule (b)()). At the second stage of the approval process, after class members have had an opportunity to object to the settlement, the Court makes a final determination whether the settlement is fair, reasonable and adequate under Rule (e). Armstrong, F.d at ; see Staton, F.d at ; see also Rule (e)(c)(), which provides that a court may finally approve a settlement of a class action if it finds after a hearing that the settlement is fair, reasonable, and adequate and Rule (e)(c)(), which provides that any class member may object to a proposed settlement. A. Plaintiff s Claims Merit Class Action Treatment In determining the propriety of class certification, a court may not delve into the underlying merits of the claims. The fundamental question is not whether... plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule are met. Eisen v. Carlisle & Jacquelin, U.S., (). The Ninth Circuit has established that, when ruling on the propriety of class certification, a district court is bound to take the substantive allegations of the complaint as true. Blackie v. Barrack, F.d, 0 n. (th Cir. ). A court may not require plaintiffs to make a preliminary proof of their claim; it requires only sufficient information to form a reasonable judgment. Baldwin & Flynn v. Nat l. Safety Associates, F.R.D., 00 (N.D. Cal. ). Under these standards, this action meets the requirements for certification under Rule (a) and Rule (b)(). Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..

12 Case :-cv-0-jst Document Filed /0/ Page of 0. Numerosity Under Rule (a)(), a class action may be maintained where the class is so numerous that joinder of all members is impracticable. In determining whether joinder would be impracticable, a court may consider not only the sheer number of class members, Riordan v. Smith Barney, F.R.D. 0, (N.D. Ill. ) (numbers alone may be dispositive), but also the nature of the action, the size of the individual claims, [and] the inconvenience of trying individual suits. Wang v. Chinese Daily News, F.R.D. 0, 0 (C.D. Cal. 0). A class action may proceed upon estimates as to the size of the proposed class. Lewis v. Gross, F. Supp., (E.D.N.Y. ). See also, In re Computer Memories Sec. Litig., F.R.D., (N.D. Cal. ) (class certified where plaintiffs did not establish exact size, but demonstrated that class would obviously be sufficiently numerous ). In this action, the Class is composed of the individuals comprising the Current and Former Employee groups. (Myette Decl.,.) It is sufficiently numerous that the individual joinder of all members is impracticable.. Commonality and Predominance of Common Issues Rule (a)() requires that there be questions of law or fact common to the class. This commonality requirement is construed permissively. Hanlon v. Chrysler Corp., 0 F.d 0, 0 (th Cir. ). Plaintiff need not demonstrate that all questions of fact and law are common. The existence of shared legal issues with divergent factual predicates is sufficient. Id. Where a class is united by a common interest in determining whether a defendant s broad course of conduct is actionable, commonality is not defeated by slight differences in class members positions. Blackie, F.d at 0 n.. In this litigation, all Class Members have shared a common interest in determining whether Defendant had a policy of not paying Class Members correctly for all on-call time worked; whether Defendant correctly compensated class members for travel time; whether Defendant provided legally compliant meal periods and rest breaks to Class Members; whether Defendant violated the itemized wage statement provisions of Labor Code by not providing accurate information as to wages; and whether Defendant s policies and practices violated California Business & Professions Code 0 et seq. and the FLSA. Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..

13 Case :-cv-0-jst Document Filed /0/ Page of 0 Given the permissive standard that courts in the Ninth Circuit employ when determining commonality, certification of the Class for settlement purposes is appropriate as Rule (a)() is satisfied. Once it is established that common issues of law or fact exist, for Rule (b)() purposes, the Court next examines whether those common issues predominate. The predominance inquiry focuses on whether the class is sufficiently cohesive to warrant adjudication by representation. Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., F.d, (th Cir. 0). Central to predominance is the notion that the adjudication of common issues will help achieve judicial economy. Zinser v. Accufix Research Institute, Inc., F.d, (th Cir. 0). When common questions represent a significant aspect of the case and they can be resolved for all members of the class in a single adjudication, there is clear justification for handling the dispute on a representative rather than on an individual basis. Hanlon, 0 F.d at 0. It is well settled that the need for determining differing amounts of damages suffered by different class members does not preclude class certification. See, Blackie, F.d at 0; Wang, F.R.D. at. There are common issues that may predominate over individual issues in this litigation. For example: () whether Defendant failed to correctly count on-call time worked by the putative class members; () whether Defendant uniformly failed to provide Class Members with legally compliant meal periods and rest breaks; () whether Defendant provided putative Class Members with itemized wage statements that were inaccurate in violation of Labor Code ; and () whether Defendant failed to pay all overtime wages due and payable to former employees within the times specified under the California Labor Code.. Typicality Rule (a)() requires that the representative plaintiff have claims typical of the claims... of the class. This factor is also construed permissively. See Hanlon, 0 F.d at 0-. Representative claims are typical if they are reasonably co-extensive with those of absent class members; they need not be identical. Id. at 0. In other words, named plaintiffs need not be identically situated with all other class members. It is enough if their situations share a common issue of law or fact and are sufficiently parallel to insure a vigorous and full presentation of all claims for relief. Cal. Rural Legal Assistance, Inc. v. Legal Servs. Corp., F.d, (th Cir. 0). Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..

14 Case :-cv-0-jst Document Filed /0/ Page of 0 Typicality refers to the nature of the claim... of the class representative, and not to the specific facts from which it arose. Hanon v. Dataproducts Corp., F.d, 0 (th Cir. ). The typicality requirement is satisfied where the named Plaintiffs raise the same Labor Code violations as other putative class members. Id. Here, Plaintiff is raising the same claims as the putative Class Members and has alleged no other individual claims in this matter. (Leviant Decl.,.). Adequate Representation Rule (a)() requires that the representative parties will fairly and adequately protect the interests of the class. Adequate representation turns on whether the named plaintiff and his counsel have any conflicts of interest with other class members, and whether the named plaintiff and his counsel will prosecute the action vigorously on behalf of the class. Adequacy may be established by the mere fact that counsel are experienced practitioners. Hanlon, 0 F.d at 0. There are no conflicts of interest between Plaintiff and Class Members. The similarity of the claims asserted and remedies sought by Class Members and Plaintiff do not suggest any divergent interests held by Plaintiff. Defendant did not assert unique defenses against Plaintiff that it could not assert against any other Class Member. Also, there are no conflicts with Plaintiff s counsel. Plaintiff s counsel has substantial class action experience and can adequately represent the Class. They have been appointed class counsel in many wage and hour class actions against major employers. (Leviant Decl., -.). Superiority In deciding whether to certify a class for settlement purposes, a court considers the following factors to determine whether a class action is superior: (a) class members interests in individually controlling the prosecution or defense of separate actions; (b) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; and (c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum. Some courts have Rule (b)()(a)-(c). When a court reviews a class action settlement, it does not consider Rule (b)()(d), the fourth factor, regarding difficulties of managing a class action. Amchem Products Inc. v. Woodward () U.S., (in deciding whether to certify a class for settlement purposes, a district court need not inquire whether the case, if tried, would present intractable management problems ). Case No.: :-cv-0-jst Page 0 Jarrell v. Amerigas Propane, Inc., et al..

15 Case :-cv-0-jst Document Filed /0/ Page of 0 found that the third Rule (b)() factor is conceptually irrelevant in the context of a settlement. See Strube v. American Equity Inv. Life Ins. Co., F.R.D., (M.D. Fla. 0). With the settlement in hand, the desirability of concentrating the litigation in one forum is obvious. Elkins v. Equitable Life Ins. Of Iowa, WL, at * (M.D. Fla. ). To determine whether the superiority requirements of Rule (b)() are satisfied, a court compares a class action with alternative methods for adjudicating the parties claims. Lack of a viable alternative to a class action necessarily means that it satisfies the superiority requirement. See Valentino v. Carter- Wallace, F.d, - (th Cir. ) ( a class action is a superior method for managing litigation if no realistic alternative exists ). [I]f a comparable evaluation of other procedures reveals no other realistic possibilities, [the] superiority portion of Rule (b)() has been satisfied. Culinary/Bartender Trust Fund, F.d at. In Culinary/ Bartender Trust Fund, the Ninth Circuit held that the case involve[d] multiple claims for relatively small sums and that the class action clearly served as the only method that would permit the plaintiffs to pool claims which would be uneconomical to litigate individually. Id. at. The class action is superior here as it is on the only method that will allow Class Members to pool [their individual] claims which would be uneconomical to litigate individually. Id. The factors articulated in Rule (b)()(a), (B) and (C) also favor class certification. It is difficult to believe that any Class Members have an interest in individually controlling the prosecution of separate actions, given the relatively small sums involved for any one Class Member. The low rate of opt-outs (just three) suggests this is true. (Myette Decl.,.) Any Class Member who wants to pursue a separate action can opt out of the Settlement, as just three did. (Id.) No Class Member objected, which is also informative. (Myette Decl.,.) In settlements, management issues are attenuated or non-existent, and the notice process provides a sound basis for concluding that there are no management issues here. There are no known suits other than this action that could complicate certification for settlement purposes. Finally, it is desirable to concentrate the issues in a single forum. Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..

16 Case :-cv-0-jst Document Filed /0/ Page of 0 B. The Settlement Falls Squarely Within the Range of Reasonableness and Should Be Finally Approved No single criterion determines whether a class action settlement meets the requirements of Rule (e). The Ninth Circuit has directed district courts to consider a variety of factors without providing an exhaustive list or suggesting which factors are most important. See, Staton, F.d at. The relative degree of importance to be attached to any particular factor will depend upon and be dictated by the nature of the claim(s) advanced, the type(s) of relief sought, and the unique facts and circumstances presented by each individual case. Officers for Justice v. Civil Service Commission of City and County of San Francisco, F.d, (th Cir. ). Due to the impossibility of predicting any litigation result with certainty, a district court s evaluation of a settlement essentially amounts to an amalgam of delicate balancing, gross approximations and rough justice. Id. at. The ultimate touchstone, however, is whether class counsel adequately pursued the interests of the class as a whole. Staton, F.d at. As the Ninth Circuit explained in Officers for Justice, the district court s role in evaluating a class action settlement is therefore tailored to meet that narrow objective. Officers for Justice, F.d at. Review under Rule (e) must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties. Id. Accordingly, the Ninth Circuit will not reverse a district court s approval of a class action settlement unless the fees and relief provisions clearly suggest the possibility that class interests gave way to self interest. Staton, F.d at. There is a presumption that the negotiations were conducted in good faith. Newberg,.; Pridd v. Edelman, F.d, (th Circuit ); 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 where, as here, settlement has been reached with the participation of experienced counsel familiar with the litigation. Hammon v. Barry, F. Supp. 0 (D.D.C. 0); In re Armored Car Anti-Trust Litigation, F. Supp. (N.D. GA ); Sommers v. Abraham Lincoln Federal Savings & Loan Association, F.R.D. (E.D. PA ). The fact that settlement results from arms-length negotiations following relevant discovery creates a presumption that the agreement is fair. Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..

17 Case :-cv-0-jst Document Filed /0/ Page of 0 Linney v. Cellular Alaska Partnership, WL 00, * (N.D. Cal. ); See In re Immune Response Securities Litigation, F. Supp. d, (S.D. Cal. 0) (settlement approved where informal discovery gave the parties a clear view of the strength and weaknesses of their cases). Here, the Parties reached a non-collusive settlement after months of negotiations. The settlement was finally reached after a day of arm s-length negotiations before Mark Rudy, a highly-respected mediator skilled at helping parties attempting to negotiate reasonable settlements in wage and hour class actions. Obtaining class certification and establishing liability posed significant hurdles for the class that justified the settlement. The Stipulation falls well within the range of reasonable outcomes and merits approval under Rule (e). (Leviant Decl., -, 0, -.). The Value of the Settlement to Class Members Is Fair, Reasonable and Adequate The Parties reached a Settlement in good faith after negotiating at arm s length with a professional mediator. (Leviant Decl.,.) Settlement occurred only after discovery commenced. That discovery included two sets of interrogatories and one set of some requests for production to AmeriGas. AmeriGas produced almost,000 pages in response to formal discovery (followed by still more data about class composition requested and produced prior to mediation). The information produced in discovery and the additional data about class composition produced for mediation, were sufficient to permit Plaintiff s counsel to adequately evaluate the settlement. And, notably, approval of a class action settlement does not require that discovery be exhaustive. See, e.g., In re Immune Response Securities Litigation, F. Supp. d, (S.D. Cal. 0) (settlement approved where informal discovery gave the parties a clear view of the strength and weaknesses of their cases). The fact that settlement results from arm s-length negotiations following relevant discovery creates a presumption that the agreement is fair. Linney v. Cellular Alaska Partnership, WL 00, at * (N.D. Cal. ). With respect to the claims asserted on behalf of the Settlement Class in this case, there are significant risks that support the reduced compromise amount. These risks include, but are not limited to: (i) the risk that Plaintiff would be unable to establish liability for allegedly unpaid straight time or overtime wages, see Duran v. US Bank Nat l Ass n, Cal. th, & fn. () ( Duran ), citing Dilts v. Penske Logistics, LLC WL 0 (S.D. Cal. ) (dismissing certified off-the-clock claims based Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..

18 Case :-cv-0-jst Document Filed /0/ Page of 0 on proof at trial); (ii) the risk that Defendant s challenged employment policies might not ultimately support class certification or a class-wide liability finding, see, Duran, Cal. th at & fn. (citing Court of Appeal decisions favorable on class certification issue without expressing opinion as to ultimate viability of proposition); (iii) the risk that uncertainties pertaining to the ultimate legality of Defendant s policies and practices could preclude class-wide awards of statutory penalties under Labor Code and (e); (iv) the risk that individual differences between Settlement Class Members could be construed as pertaining to liability, and not solely to damages, see, Duran, Cal. th at ; (v) the risk that any civil penalties award under the PAGA could be reduced by the Court in its discretion, see Labor Code (e)(); (vi) the risk that class treatment could be deemed improper as to one or more claims except for settlement purposes; (vii) and the risk that lengthy appellate litigation could ensue. Defendant strongly denies any liability and the propriety of class certification for any reason other than settlement. (Leviant Decl.,.) Continued litigation of this lawsuit presented Plaintiff and Defendant with substantial legal risks that were (and continue to be) very difficult to assess. In light of the uncertainties of protracted litigation, the settlement amount reflects a fair and reasonable recovery for the Settlement Class Members. (Leviant Decl. -.) The settlement amount is, of course, a compromise figure. (Leviant Decl..) By necessity it took into account risks related to liability, damages, and all the defenses asserted by the Defendants. (Id.) Moreover, each Settlement Class Member was given the opportunity to opt out of the Settlement, allowing those who feel they have claims that are greater than the benefits they can receive under this Settlement, to pursue their own claims. (Id.) Only three class members chose to opt out. For the members of the Class that will share in the settlement, the average recovery before fees, costs and taxes is over $,000 per class member. (Leviant Decl.,.) The value of this amount reflects a fair compromise well within the range of reasonableness. Given the strong case that Defendant could bring to bear to challenge certification and liability, this is not an inconsequential sum. And, confirming the fundamental fairness of the settlement, each Class Member will be compensated ratably based on the number of workweeks he or she worked during the class period. (Id.) Calculated by dividing the total settlement amount by the former employees and current employees participating in the Settlement. Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..

19 Case :-cv-0-jst Document Filed /0/ Page of 0 The Class Settlement Amount is approximately equal to the risk-adjusted recovery at this stage in the litigation. While Plaintiff would certainly have preferred to recover more (and Defendant would have preferred to pay less), this outcome is in line with a carefully constructed estimate of the current fair value of the case. (Leviant Decl.,.) On that basis, it would be unwise to pass up this settlement opportunity. The maximum damage values are estimates based on average wage rates, numbers of employees, and the amount of time covered by the class period. (Id.) Plaintiff also notes that, in the Shields matter, similar wage and hour claims asserted on behalf of a putative class of propane delivery drivers were found by Judge Wu to fall within a range of reasonableness, even where the per capita average recovery was substantially lower than that agreed to here. After analyzing the claims in this matter, Plaintiff has concluded that the value of this Settlement is fair, adequate and reasonable. For example, the estimated exposure for rest break violations over the class period was calculated to be $,000. With risk factor discounts for certification and liability proof, the value of that claim is estimated by Plaintiff s counsel to be approximately $0,000. A similar valuation applies to the meal period claim. Similarly, the unpaid vacation pay claim has a potential value of up to $00,000, but, again, with risk factors for certification and merits proof, the realistic current value is approximately $00,000. Performing similar risk-adjusted valuations for all claims yields a total value in the range of $0,00 - $00,000. (Leviant Decl.,.) This result here is fully supportable as reasonable. First, rest break and meal period claims have been challenging to certify for many years, even after Brinker. (Leviant Decl.,.) Second, on-call pay claims have consistently proven to be extremely difficult to certify. Third, certification rates are lower than conventional wisdom holds. See, e.g., H. Scott Leviant, Second Interim Report on class actions in California sheds new light on certification (February, 0), available at see also Findings of the Study of California Class Action Litigation, 00-0, available at (finding, at page, and in Table, at page, that only.% of all class actions were certified either as part of a settlement or as part of a contested certification motion). In estimating risk adjustments here, Plaintiff s counsel has Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..

20 Case :-cv-0-jst Document Filed /0/ Page of 0 assumed estimated certification probabilities of 0% - 0%, depending on the claim, assumptions that substantially exceed the average rate at which cases were certified in California over the study years, based upon data available through the California Courts website. (Id.) Given that well under % of all cases filed in California as proposed class actions are ultimately certified by way of a contested motion, and a similar trend is seen in federal courts, it is fair to say that, if anything, the use of high estimates for certification overstates the realistic current claim value. (Id.) It would also be appropriate to evaluate the result by examining only the premium wages at issue, excluding penalties and interest. Under that metric, the settlement recovered substantially than the realistic current claim value for the premium wages at issue. Viewed either way, this Settlement achieves the goals of the litigation. By obtaining reasonable value for their claims in light of the substantial risks of litigation, Plaintiff clearly achieved a fair settlement that merits approval.. The Agreed Upon Fees and Costs Are Reasonable While a separate Motion addresses Plaintiff s requests for attorney s fees, costs, and an enhancement award, Plaintiff briefly addresses the reasonableness of the amounts below. a) Plaintiff seeks reasonable fees. The compensation sought for Plaintiff s counsel is also fair and reasonable. The Ninth Circuit has directed that, to determine what constitutes a fair and reasonable percentage of the settlement for purposes of calculating common fund attorneys fees, the courts should begin with a benchmark percentage of the total fund. Paul, Johnson, Alston & Hunt v. Graulty, F.d, (th Cir. ); Vizcaino v. The exclusion of interest and penalties from the fairness evaluation is proper because, first, PAGA penalties are discretionary (see Lab. Code (e)() (the court in its discretion may award a lesser amount than the maximum civil penalty amount specified by this part )), and, second, courts evaluate the strength of a proposed settlement without taking potential penalties or interest into consideration. See Rodriguez v. West Publishing Corp., F.d, (th Cir. 00); see also Miller v. CEVA Logistics U.S.A., Inc., WL, at * (E.D. Cal. Feb., ) (court utilized calculation of a defendant s exposure exclusive of interest and penalties to determine whether the settlement fell within the range of possible approval). The Ninth Circuit has recognized that the lodestar method creates incentives for counsel to spend more hours than may be necessary on litigating a case so as to recover a reasonable fee, since the lodestar method does not reward early settlement. Vizcaino, 0 F.d at 00, n.. The Ninth Circuit has thus cautioned that, while a lodestar method can be used as a cross check on the reasonableness of fees based on a percentage of recovery method if a district court in its discretion chooses to do so, a lodestar Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..

21 Case :-cv-0-jst Document Filed /0/ Page of 0 Microsoft Corp., 0 F.d 0, 0 (th Cir. 0); Six Mexican Workers v. Arizona Citrus Growers, 0 F.d 0, (th Cir. 0). The percentage can be adjusted upwards where the risks overcome, the benefits obtained, and the work necessary to achieve those results supports such an adjustment of the benchmark. Here, the Maximum Settlement Amount is $00, Plaintiff s counsel has agreed to seek no more than $,0 in fees, which is appropriately in line with the risk-adjusted benchmark. (Leviant Decl., 0.) Plaintiff s counsel also requests actual costs incurred and paid without reimbursement in the litigation of this Action, capped as agreed under the Settlement (the cap is not triggered, as the costs requested are far below that cap). b) Plaintiff seeks reimbursement of reasonable costs. Plaintiff s unreimbursed costs, which were not fully settled when Plaintiff prepared a motion for an award of fees, costs, and enhancement award, are estimated to be $,0.. Those costs include: mediation expenses, court filing fees, service fees, photocopying costs, travel costs, postage costs, legal research charges. (Leviant Decl.,.). The Enhancement Award Is Reasonable Enhancement awards serve to reward the named plaintiff for the time and effort expended on behalf of the class, and for exposing herself to the significant risks of litigation. Courts routinely approve incentive awards to compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation. Ingram v. The Coca-Cola Co., 0 F.R.D., (N.D. Ga. 0); In re Southern Ohio Correctional Facility, F.R.D. 0, (S.D. Ohio ); see also Van Vranken v. Atl. Richfield Co., 0 F. Supp., 00 (N.D. Cal. ) (approving $0,000 participation award). Here, Plaintiff s counsel requests that the Court grant Plaintiff an incentive award of $0,000. The amount of the enhancement award requested for Plaintiff is only. times the average recovery for Class Members, which is proportionate given the risks undertaken by Plaintiff. Taking the risk of filing a lawsuit against an employer deserves reward, especially in light of the settlement achieved by Plaintiff. Additionally, Plaintiff was actively involved in the litigation and calculation is not required and it did not mean to imply that class counsel should necessarily receive a lesser fee for settling a case quickly. Id. Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..

22 Case :-cv-0-jst Document Filed /0/ Page of settlement negotiations of this Action. Plaintiff worked diligently with counsel to prepare the action and conferred with counsel regarding settlement negotiations. (Leviant Decl.,.) The requested amount is reasonable. 0 VI. VII. SUMMARY OF TOTAL REQUESTED DISTRIBUTION Plaintiffs request distributions from the Gross Settlement Fund as follows: Item Amount Gross Settlement Fund $00, Unreimbursed costs to Setareh Law Group ($,0.) Third-party administrator charges (RUST) ($,000.00) Class Representative Service Awards ($0,000.00) Payment to LWDA ($0,000.00) Fees to Class Counsel ($,0.00) Net allocation to participating Class Members ($,.) BALANCE FOLLOWING ALL DISTRIBUTIONS $0.00 CONCLUSION Plaintiff negotiated a settlement that resolves claims and recovers money for several hundred Class Members ( of whom are current employees who did not need to submit a claim to share in the recovery). Notice was completed without issue. Only three Class Members have chosen to opt out, and no Class Members have filed an objection to the settlement. This confirms that the settlement is fair and reasonable, especially given the claims and the potential defenses to them and to class certification. Plaintiff asks the Court to grant final approval of the settlement and adopt the proposed order submitted herewith. Respectfully submitted, Dated: November 0, By: SETAREH LAW GROUP H Shaun Setareh H. Scott Leviant Attorneys for Plaintiff Case No.: :-cv-0-jst Page Jarrell v. Amerigas Propane, Inc., et al..