SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SONOMA

Transcription

1 Exhibit 1

2 ALAN HARRIS, Bar No. 0 PRIYA MOHAN, Bar No. HARRIS & RUBLE North Central Avenue, th Floor Glendale, CA 0 Telephone:.. Fax No.:..00 DAVID S. HARRIS, Bar No. NORTH BAY LAW GROUP E. Blithedale Ave., Suite Mill Valley, CA 1 Telephone:.. Fax No.:..0 Attorneys for Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SONOMA 1 LESLIE VEURINK, individually and on behalf of all others similarly situated, v. Plaintiff, BEVERLY HEALTH AND REHABILITATION SERVICES, INC., GOLDEN LIVINGCENTER - PETALUMA, and DOES 1 to, Defendants. Case No. SCV Assigned to Hon. Arthur A. Wick JOINT STIPULATION OF CLASS SETTLEMENT AND CLASS SETTLEMENT AGREEMENT AND RELEASE

3 1 Subject to its terms and conditions and the approval of the Court, this Joint Stipulation of Class Settlement and Class Settlement Agreement and Release (the Settlement Agreement or Agreement ) is made and entered into by and between Plaintiffs Andrew Carr and Leslie Veurink individually and on behalf of the putative class ( Plaintiffs ), and Defendants Beverly Health and Rehabilitation Services, Inc., GGNSC Administrative Services, LLC, and Hospice Preferred Choice, Inc. ( Golden Living ). Plaintiffs and Golden Living are collectively referred to in this Settlement Agreement as the Parties. I. DEFINITIONS 1. In addition to terms defined elsewhere in the Settlement Agreement, as used in this Settlement Agreement the following terms have the meanings indicated below: a. Action means the civil action initiated on June, in the United States District Court, Northern District of California, Carr v. Beverly Health and Rehabilitation Services, Inc., Case No. C--0 and the civil action initiated on May, in California Superior Court, Sonoma County, Veurink v. Beverly Health and Rehabilitation Services, Inc., Case No. SCV. b. Settlement Administrator means an administrator mutually agreed to by the Parties and appointed by the Court which will perform the contracted duties of a claims administrator including but not limited to, the duties enumerated in this Agreement. c. Class Counsel shall refer to, collectively and individually, Alan Harris and Priya Mohan, Harris & Ruble, North Central Avenue, Glendale, California 0 and David S. Harris, North Bay Law Group, E. Blithedale Ave., Suite, Mill Valley, California 1. d. Class Counsel Fees Payment and Class Counsel Litigation Expenses Payment mean the amounts awarded to Class Counsel by the Court to compensate them for, respectively, their attorneys fees and litigation expenses incurred in connection with the Action, including their pre-filing investigation, their filing of the Action and all related litigation activities, this Settlement Agreement, and all post-settlement Agreement compliance procedures. 1. Case No. SCV

4 1 e. Reserved. f. Class Period shall mean the period of time beginning June, 0, through May,. g. Class Representatives shall refer to Plaintiffs Carr and Veurink. h. Class Representative Payment means the Court-approved service payments to Plaintiffs Carr and Veurink for their services as Class Representatives. i. Reserved. j. Date of Preliminary Approval means the date on which the Court enters the Preliminary Approval Order on its docket. k. Days means calendar days. l. Defendant or Golden Living shall mean Beverly Health and Rehabilitation Services, Inc., GGNSC Administrative Services, LLC, and Hospice Preferred Choice, Inc. m. Defendant s Counsel, Defense Counsel, or Counsel for Defendant shall mean Sharon Bauman, Manatt, Phelps & Phillips, LLP, One Embarcadero Center, 0 th Floor, San Francisco, California 1. n. Exclusion Form means the form which a Class Member must submit to exclude himself or herself from the release of claims pursuant to this Settlement Agreement. o. Final Approval Hearing means the hearing contemplated by the Parties, at which the Court will approve, in final, the settlement and make such other final rulings as are contemplated by this Settlement Agreement. p. Final Approval Order means the Court s order granting final approval of the Settlement Agreement, dismissing the Action with prejudice, and entering Final Judgment, which will constitute a judgment within the meaning provided under Federal Rule of Civil Procedure. q. Final Effective Date shall be the first date after all of the following events or conditions have been met or have occurred:. Case No. SCV

5 1 (1) the Court has, by entry of a Preliminary Approval Order: (a) Approved the certification of the Class for settlement purposes; (b) Preliminarily approved the settlement set forth in this Settlement Agreement, and the method of providing the Court-approved Notice of Proposed Settlement, Claim Form and Exclusion Form to the Class Members; () The Court has entered a Final Approval Order approving this settlement and the Court has entered the judgment as provided in Paragraph 1.p. above; () No valid rescission of the Settlement Agreement has occurred pursuant to Paragraph, below; () The time to appeal from the Final Approval Order has expired and no notice of appeal has been filed; and () In the event that an appeal is actually filed, the latest of the following, if applicable, has occurred: (a) Any appeal from the Final Approval Order has been finally dismissed; (b) The Final Approval Order has been affirmed on appeal in a form substantially identical to the form of the Final Approval Order entered by the Court; (c) The time to petition for review with respect to any appellate decision affirming the Final Approval Order has expired; or (d) If a petition for review of an appellate decision is filed, the petition has been denied or dismissed, or, if granted, has resulted in affirmance of the Final Approval Order in a form substantially identical to the form of the Final Approval Order entered by the Court. r. Individual Settlement Payment means the payment made to each Participating Class Member according to his or her pro-rata share of the number of the total pay. Case No. SCV

6 1 periods worked by all Participating Class Members during the Class Period. Payments shall be characterized as 0% wages and 0% interest and penalties. s. Participating Class Members means those members of the Class who file timely and valid Claim Forms. By submitting a Claim Form, a Participating Class Member will be giving his or her consent to opt in as a party plaintiff in the action pursuant to the FLSA, U.S.C. (b). t. Parties collectively refers to Plaintiffs and Golden Living. u. Plaintiffs means Plaintiffs Carr and Veurink. v. Preliminary Approval Order means the order of the Court granting preliminary approval of this Settlement Agreement on the terms provided herein or as the same may be modified by subsequent mutual agreement of the Parties, and directing the manner and timing of providing notice to the Class Members. w. Qualified Settlement Fund or QSF shall mean the escrow account established by the Settlement Administrator for deposit of the settlement funds paid by Golden Living. The QSF will be controlled by the Settlement Administrator subject to the terms of this Agreement and the Court s Preliminary Approval Order and Final Approval Order. In the event that the Court does not grant preliminary or final approval of the Settlement Agreement, or in the event that this Settlement Agreement shall terminate or the settlement embodied herein does not become effective for any reason, all funds remaining in the QSF will be returned to Golden Living, including interest and profits, if any, earned on the Total Settlement Amount to that date. x. Released Parties shall mean Defendants and their past, present, or future subsidiaries, parent companies, affiliates, divisions, corporations in common control, successors or assigns and all past or present officers, directors, shareholders, owners, partners, agents, insurers, employees, attorneys, advisors, accountants, representatives, trustees, heirs, executors, administrators, predecessors, successors or assigns of any of the foregoing entities referred to in this Paragraph including, but not limited to, Beverly Health and Rehabilitation Services, Inc., GGNSC Administrative Services, LLC, and Hospice Preferred Choice, Inc.. Case No. SCV

7 1 y. Class Members or Class means the class to be conditionally certified for settlement purposes only, as set forth in Paragraph of this Agreement. Class Members shall specifically exclude 1) any individual who is a Plaintiff in pending litigation against Golden Living in federal or state court involving claims under the FLSA or California Labor Code or who executed a court-approved waiver of claims in any such case, ) any individual who chose to opt-in and receive a settlement payment in the case of Jarrett v. GGNSC Holdings, LLC, :-cv- 0-BP, pending in the United States District Court for the Western District of Missouri; and ) any individual who was hired after May,. II. BACKGROUND AND REASONS FOR SETTLEMENT. Plaintiffs have filed Complaints against Beverly Health and Rehabilitation Services, Inc., GGNSC Administrative Services, LLC, and Hospice Preferred Choice, Inc., on behalf of themselves and those current and former employees of Defendants who were employed in Defendants California facilities during the preceding four-year period. Essentially, Plaintiffs alleged that Defendants violated various provisions of the California Labor Code, and the Fair Labor Standards Act, as detailed in the operative Complaints. The Complaints articulated the following claims: 1. Failure to Pay Minimum Wage and Overtime Compensation, California Labor Code & Fair Labor Standards Act. Failure to Provide Accurate Itemized Wage Statements (Cal. Lab. Code ). Failure to Provide Proper Response to Information Request (Cal. Lab. Code (c)). Failure to Provide Adequate Meal Periods. Failure to Provide Adequate Rest Periods. Continuing Wages (Cal. Lab. Code ). Violations of Section 0 et seq. of the California Business and Professions Code. Golden Living denies the allegations in each of the Complaints and has maintained throughout this litigation that Plaintiffs and the individuals they purported to represent were properly and timely paid all wages and compensation due under federal and California wageand-hour laws.. The Parties have engaged in discussions about the case and several rounds of informal written discovery and document exchanges. At Plaintiffs request, as part of the informal. Case No. SCV

8 1 exchange, Defendants provided the timecard data for randomly selected putative class action members, along with a great deal of additional information.. The Parties attended a mediation session presided over by a highly regarded JAMS mediator in the wage and hour field, Michael J. Loeb, Esq. Each Party was represented by respective counsel during the good-faith negotiations facilitated by Mr. Loeb. The Parties were able to reach an agreement after the mediation sessions and follow-up communications with Mr. Loeb.. Class Counsel represent that they have conducted a thorough investigation into the facts of this case and have diligently pursued an investigation of the Class Members claims against Golden Living, including: (1) interviewing Class Members and analyzing the results of those interviews; () reviewing hundreds of pages of relevant documents including policy documents; () researching the applicable law and the potential defenses; and () reviewing payroll data and time records for what Class Counsel s expert indicated was a significant random sample of the Class Members. Based on their own independent investigation and evaluation, Class Counsel are of the opinion that the Settlement Agreement is fair, reasonable and adequate and is in the best interest of the Class Members in light of all known facts and circumstances, including the risk of significant delay, defenses asserted by Golden Living, and potential appellate issues. Golden Living agrees that the Settlement Agreement is fair, reasonable and adequate.. It is the mutual desire of the Parties to fully, finally, and forever settle, compromise, and discharge all disputes and claims raised in or related in any way to the Action. Thus, the entry of the Final Approval Order in this Action shall dismiss with prejudice all claims which were or which could have been alleged based upon the facts set forth in the Complaints. The Parties agree to cooperate and take all steps necessary and appropriate to obtain preliminary and final approval of this Settlement Agreement, to effectuate its terms, and to dismiss this Action with prejudice. III. NO ADMISSION. Case No. SCV

9 1. Nothing contained in this Settlement Agreement and the settlement contemplated in the Settlement Agreement shall be construed or deemed an admission of liability, culpability, negligence, or wrongdoing on the part of Golden Living, and Golden Living denies liability therefor. The fact that Golden Living seeks approval of this Settlement Agreement in the form of a class action shall not be construed as an admission that the underlying action was properly brought as a class action for purposes other than settlement. Each of the Parties has entered into this Settlement Agreement with the intention to avoid further disputes and litigation with the attendant inconvenience and expenses. Settlement of the Action, the negotiation and execution of this Settlement Agreement, and all acts performed or documents executed pursuant to or in furtherance of this Settlement Agreement: (1) are not, shall not be deemed to be, and may not be used as, an admission or evidence of any wrongdoing or liability on the part of Golden Living; () are not, shall not be deemed to be, and may not be used as, an admission or evidence of any fault or omission on the part of Golden Living in any civil, criminal, administrative or arbitral proceeding in any court, administrative agency or other tribunal; and () are not, shall not be deemed to be, and may not be used as, an admission or evidence of the appropriateness of these or similar claims for class certification or administration other than for purposes of administering this Settlement Agreement. This Settlement Agreement is a settlement document and shall be inadmissible in evidence in any proceeding, except an action or proceeding to approve, interpret, or enforce the terms of the Settlement Agreement. IV. CERTIFICATION OF SETTLEMENT CLASS. For settlement purposes only, the Parties agree to request that the Court certify the following class pursuant to Federal Rule of Civil Procedure and the Fair Labor Standards Act: All current and former hourly clinical employees of Beverly Health and Rehabilitation Services, Inc. GGNSC Administrative Services, LLC and Hospice Preferred Choice, Inc., employed in California during the Class Period, i.e. from June, 0 to May,. The Parties agree that the certified class shall specifically exclude 1) any individual who is a Plaintiff in pending litigation against Golden Living in federal or state court involving claims under the FLSA or. Case No. SCV

10 1 California Labor Code or who executed a court-approved waiver of claims in any such case, and ) any individual who chose to opt-in and receive a settlement payment in the case of Jarrett v. GGNSC Holdings, LLC, :-cv-0-bp, pending in the United States District Court for the Western District of Missouri.. Reserved.. The Parties stipulate that Plaintiffs Carr and Veurink shall be proposed as Class Representatives for the Class.. The Parties stipulate that Alan Harris and Priya Mohan, Harris & Ruble, and David S. Harris, North Bay Law Group, shall be proposed as Class Counsel for the Settlement Class.. The agreements to certify the Class are completely contingent upon final approval of this Agreement by the Court and are made for settlement purposes only. If the Settlement Agreement is not approved by the Court, is overturned on appeal, or does not become final for any other reason, the Parties agree that this agreement regarding certification of the Class is void ab initio and that, if necessary, they shall stipulate to decertification of the Settlement Class without prejudice to the propriety of class certification being adjudicated on the merits. V. TERMS OF THE SETTLEMENT A. Settlement Amounts. Defendants shall pay Three Hundred Seventy Five Thousand Dollars and Zero Cents ($,000.00) to settle the claims of the Class (the Total Settlement Amount ). This entire amount will be disbursed pursuant to this Agreement, and none of it will revert to Defendants.. Reserved.. Accordingly, the maximum amount Defendants will have to pay under this Settlement Agreement is Three Hundred Seventy Five Thousand Dollars and Zero Cents ($,000.00). This sum shall be deemed to be in satisfaction of: (a) all wages, compensation, damages, penalties, interest, and/or other monetary amounts to be paid to Participating Class Members for the releases described below; (b) attorneys fees and costs of Class Counsel approved. Case No. SCV

11 1 by the Court; (c) all costs of administration; and (d) all incentive payments to the Class Representatives. Under no circumstances will Defendants be required to pay more than Three Hundred Seventy Five Thousand Dollars and Zero Cents ($,000.00) total under this Settlement Agreement.. The Total Settlement Amount shall remain in the possession, custody, and control of Golden Living until the settlement amounts are distributed as set forth herein, with $0,000 payable to the Settlement Administrator within fifteen days of entry of the Preliminary Approval Order and the balance payable to the Settlement Administrator within fifteen court days of the date on which the Court enters a Final Approval Order of the settlement. The Remaining Settlement Amount shall not be segregated but shall remain in Golden Living s general funds until provided to the Settlement Administrator for distribution. In the event that this Settlement Agreement is canceled, rescinded, terminated, voided, or nullified, however that may occur, or the settlement of the Action is barred by operation of law, is invalidated, is not approved or otherwise is ordered not to be carried out by the Court or any court of competent jurisdiction, save for reimbursement of reasonable expenses incurred by the Settlement Administrator, Golden Living will cease to have any obligation to pay or provide any portion of the Total Settlement Amount to anyone under the terms of this Settlement Agreement. 1. The Total Net Settlement Amount shall be calculated by deducting the following items from the Total Settlement Amount: (1) attorneys fees and costs of Class Counsel approved by the Court; () all costs of settlement administration; and () all incentive payments to the Class Representatives. The Parties will apply the formulas set forth below for allocating the Total Net Settlement Amount.. Case No. SCV

12 1 B. Attorneys Fees and Costs. The Action alleges a potential claim for attorneys fees and costs pursuant to the California Labor Code and the Fair Labor Standards Act. The Parties agree that any and all such claims for attorneys fees and costs have been settled in this Agreement subject only to approval by the Court.. Golden Living understands that Class Counsel will apply to the Court for an award of attorneys fees and costs, which will be scheduled for determination at the final fairness and approval hearing. Golden Living shall not oppose an application by Class Counsel for a fee which does not exceed 0% of the Total Settlement Amount and Defendants shall not appeal from any decision regarding an award of fees and costs. Any award of attorneys fees and costs shall be paid exclusively from the Total Settlement Amount, and will compensate Class Counsel for all of the work already performed in the Action and all work remaining to be performed in documenting the settlement, securing Court approval of the Settlement Agreement, administering the Settlement Agreement, ensuring that the Settlement Agreement is fairly administered and implemented, obtaining dismissal of the Action with prejudice, and defending against any appeals, as well as all associated expenses. Neither Plaintiffs, nor Class Counsel, nor any Class Member shall seek payment of attorneys fees or reimbursement of costs or expenses from Golden Living except as expressly set forth in this Agreement.. In order to facilitate the calculation of gross Individual Settlement Payments (defined in Paragraph ) under this Agreement, which sum must be included in the Claim Forms, Class Counsel shall include within the Motion for Preliminary Approval of the Settlement Agreement a statement regarding the amount of attorneys fees and costs they intend to seek from the Court.. The substance (as opposed to the amount) of Class Counsel s application for attorneys fees and costs is not a material part of this Agreement, and is to be considered separately from the consideration of the fairness, reasonableness, adequacy, and good faith of the settlement of the Action. However, all claims for attorneys fees and costs or expenses that the Class may possess. Case No. SCV

13 1 against Golden Living have been compromised and resolved in this Agreement. Any proceedings related to Class Counsel s application for attorneys fees and costs shall not terminate or cancel this Agreement. If Class Counsel appeals the Court s ruling on its fee and cost application, the ruling of the appellate court (regardless of its substance) shall not constitute a material alteration of a term of this Agreement. D. Enhancement Payment to Class Representative. Golden Living understands that Plaintiffs and Class Counsel will apply to the Court for a Class Representative Payment in an amount up to, but not to exceed, Five Thousand Dollars ($,000) for each of the two Class Representatives, which shall be paid exclusively from the Total Settlement Amount, and will compensate Plaintiffs for their services as Class Representative. This application will be scheduled for determination at the final fairness and approval hearing. Golden Living will not oppose Plaintiffs application for Class Representative Payments, and it shall not appeal from any decision regarding the matter.. Any Class Representative Payment awarded by the Court shall be in addition to the payment, if any, Plaintiffs could otherwise receive as Participating Class Members. E. Distribution to Participating Class Members. Only Participating Class Members (those who submit timely and valid Claim Forms) are eligible to receive a settlement payment. To be timely, a Claim Form must be postmarked for delivery to the Settlement Administrator by the date indicated on the Claim Form (which shall be the date set forth below). To be valid, the Claim Form must be completed in full including, but not limited to, the portion requesting the last four digits of the Participating Class Member s Social Security Number, and signed without any deletion or amendment of any portion of the Claim Form including, but not limited to, the release language. By executing this Settlement Agreement, Plaintiffs shall be deemed to have submitted timely claims.. The Individual Settlement Payment to those Class Members who submit valid and timely claim forms ( Participating Class Members ) will be calculated and paid as follows. a. The Fund shall be allocated pro-rata among Participating Class. Case No. SCV

14 1 Members according to the number of pay periods they worked between the dates of June, 0 and preliminary approval of this settlement. Payments shall be characterized as 0% wages and 0% interest and penalties. b. Each Participating Class Member s share of payroll and income taxes, all other applicable deductions or withholding required by law or expressly authorized by the Participating Class Member, including payments of any liens, garnishments or levies, shall be withheld from the Individual Settlement Payment calculated pursuant to the terms hereof. VI. APPOINTMENT AND DUTIES OF SETTLEMENT ADMINISTRATOR. The Settlement Administrator shall perform the following duties in connection with administration of the Settlement Agreement: (1) prepare the Claim Forms for each Class Member, as described in section VII.B of this Settlement Agreement; () obtain updated forwarding addresses for Class Members using appropriate methods, as described herein; () calculate the preliminary gross Individual Settlement Payment(s) for each individual and mail the Notice of Proposed Settlement, Claim and Exclusion Forms to Class Members; () track non-delivered Notice of Proposed Settlement, Claim and Exclusion Forms and take reasonable steps to re-send them to Class Members current addresses; () track and timely report to Class Counsel and Counsel for Golden Living returned Claim Forms and Exclusion Forms and thereafter calculate the final gross Individual Settlement Payment(s) for each individual; () calculate the applicable employee and employer payroll taxes and deductions; () calculate the final net Individual Settlement Payment(s) due to each Participating Class Member; () resolve disputes (if any) by Class Members regarding pay periods worked or other matters, after timely notice to and consultation with Class Counsel and counsel for Golden Living; () contact all Participating Class Members who have not cashed their settlement checks to remind them to do so before the three-month deadline for doing so expires; () issue checks to effectuate the attorney fees, attorney costs and class representative payments called for by this Settlement Agreement; and () make appropriate tax reporting for all payments in accordance with applicable law and regulations and issue required state and federal reporting documents, including, but not limited to IRS Forms W- and.. Case No. SCV

15 1. All disputes relating to the Settlement Administrator s performance of its duties will be referred to the Court, if necessary, which will have continuing jurisdiction over this Settlement Agreement until all payments and obligations contemplated by this Settlement Agreement have been fully carried out. VII. NOTICE TO THE CLASS OF THE SETTLEMENT AND THE CLAIM PROCESS A. Mailing the Notice of Proposed Settlement and Claim and Exclusion Forms to the Class Members. Within twenty () calendar days after the Court enters its Preliminary Approval Order, Golden Living will provide to the Settlement Administrator a database that lists, for each Class Member, the individual s name, Social Security Number, last known address and telephone number. The database will include the total pay periods worked as a California employee during the Class Period. This database will be drawn from Golden Living s payroll and other business records and will be in a format acceptable to the Settlement Administrator and Golden Living. The data provided to the Settlement Administrator will remain confidential and will not be disclosed to anyone, except as required to applicable tax authorities, pursuant to Golden Living s express written consent, or by order of the Court. 0. Within thirty (0) calendar days after Golden Living provides the Settlement Administrator with the database specified above, the Settlement Administrator will mail to all Class Members, via First Class United States Mail, postage prepaid, a copy of the Court-approved Notice of Proposed Settlement of Class Action Lawsuit and Final Approval Hearing, Claim Form and Exclusion Form. The Notice will notify the Class Member of the pendency of this action and include an explanation of the Class Member s rights to: (a) opt-out of the settlement, meaning they will not be a Participating Class Member and they can pursue any state and federal claims in an alternative action; (b) do nothing and remain a Class Member but not receive any financial benefits as a Participating Class Member and not waive any claims under the FLSA; (c) opt-in to the case by submitting a signed Claim Form and become a Participating Class Member; or (d) object to the Settlement Agreement by filing a written objection with the Court in the form and manner prescribed. Case No. SCV

16 1 in the Notice; or. The Parties shall agree upon a form of Notice of Proposed Settlement of Class Action and Final Approval Hearing, a Claim Form and an Exclusion Form and shall file those with the Court at least two weeks prior to the hearing on the motion for preliminary approval. 1. The Settlement Administrator will use standard devices, including the National Change of Address database or equivalent, to obtain forwarding addresses prior to mailing and will use appropriate skip tracing to take appropriate steps to maximize the probability that the Notice Materials will be received by all Class Members. Under no circumstances will the 0-day claims period be extended by virtue of the Settlement Administrator s efforts to locate a Class Member whose Notice of Proposed Settlement has been returned.. The Settlement Administrator shall provide regular reports to Class Counsel and Golden Living s counsel as to the mailings of Notice of Proposed Settlement and Claim Forms, and the receipt of Claim Forms, requests for exclusions and objections prior to the close of the period in which claims can be made. The Settlement Administrator shall also provide the reports described below. B. Claim Form. The Claim Form mailed to the Class Members will show for the recipient his or her estimated gross Individual Settlement Payment, the dates of his or her employment in California by Golden Living during the appropriate Class Period, and the pay periods worked during the relevant Class Period.. Class Members will have the opportunity to challenge the information preprinted on their individualized Claim Forms by submitting a written challenge along with their signed Claim Form and supporting documentation to the Settlement Administrator within the time period provided for submitting the Claim Form. Any challenges to the information pre-printed on the Claim Form must be supported by documentary evidence; the Settlement Administrator will reject any challenge not supported by such evidence. All challenges must be postmarked no later than forty-five () calendar days after the initial date of mailing of the Notice of Proposed Settlement and Claim Forms.. Case No. SCV

17 1. Timely challenges submitted with documentary evidence will be resolved without hearing by the Settlement Administrator after consultation with Class Counsel and Counsel for Golden Living. Golden Living s records will be presumed correct, but the Settlement Administrator will evaluate the evidence submitted by the Class Member and will make a final determination based on its evaluation of all the evidence presented. All determinations will be made no later than fourteen () calendar days after receipt of the challenge.. In order for a Class Member to be eligible to participate in this settlement and to receive any settlement payments, the Class Member must submit a valid, fully-executed Claim Form (along with all required documentation) to the Settlement Administrator that is postmarked for delivery to the Settlement Administrator, no later than forty-five () calendar days after the initial date of mailing of the Notice of Proposed Settlement and Claim Forms. No Claim Forms will be accepted if postmarked for delivery to the Settlement Administrator after the deadline indicated, absent good cause shown. All original Claim Forms shall be sent directly to the Settlement Administrator at the address indicated on the Claim Form.. In the event that a Claim Form is submitted timely but is deficient in one or more respects, the Settlement Administrator will return the Claim Form to the Class Member within five () business days of receipt with a notice explaining the deficiencies and stating that the Class Member will have ten () business days from the date of the deficiency notice to correct the deficiency and resubmit the Claim Form. The envelope containing the resubmitted Claim Form must be postmarked within ten () business days of the date of the deficiency notice to be considered timely, absent a showing of good cause. C. Objections to Settlement Agreement. The Class Members will have forty-five () calendar days after the date on which the Settlement Administrator mails the notice materials to object to the Settlement Agreement by serving on the Settlement Administrator a written objection to the Settlement Agreement.. Any Class Member who has elected not to participate in the Settlement Agreement (pursuant to the procedure set forth in Section VII.D, below) may not submit an. Case No. SCV

18 1 objection to the Settlement Agreement. 0. A Class Member who does not file and serve a written objection in the manner and by the deadline specified above will be deemed to have waived any objection and will be foreclosed from making any objections to the Settlement Agreement (whether by appeal or otherwise). 1. Counsel for the Parties shall file any response to any objections filed by objecting Class Members at least seven () calendar days before the Final Approval Hearing. D. Election Not to Participate in the Class Settlement. In order for a Class Member to validly and effectively request exclusion from, and opt out of, this Settlement Agreement, he or she must submit to the Settlement Administrator an Exclusion Form. In order to be valid, the Exclusion Form must be postmarked for delivery to the Settlement Administrator no later than forty-five () calendar days after the date of mailing of the Notice of Proposed Settlement, Claim Forms and Exclusion Forms. No request not to participate will be accepted if postmarked for delivery to the Settlement Administrator after the deadline indicated.. Any Class Member who does not properly and timely submit an Exclusion Form will automatically be bound by all terms and conditions of the Settlement Agreement, including its release of claims, if the Settlement Agreement is approved by the Court, and be bound by the Final Approval Order, regardless of whether he or she has objected to the Settlement Agreement or submitted a completed Claim Form.. A Class Member who properly and timely submits an Exclusion Form will not be bound by the Settlement Agreement, and will remain free to pursue any claim that would have been barred by the Settlement Agreement, and nothing in this Settlement Agreement will constitute or be construed as a waiver of any defense Golden Living has or could assert against such a claim.. If a Class Member both returns a Claim Form and submits an Exclusion Form, the Exclusion Form will be disregarded. The result of both returning a Claim Form and Exclusion Form will be explained in the Notice of Proposed Settlement of Class Action and Collective Action. Case No. SCV

19 1 Lawsuit and Final Approval Hearing that will be mailed to each Class Member.. Plaintiffs may not opt-out of the Class or file an objection to the Settlement Agreement. Plaintiffs are deemed to have filed a proper Claim for the payment contemplated herein.. Neither the Parties nor their respective counsel will solicit or otherwise directly or indirectly encourage any Class Member to object to the Settlement Agreement, appeal from the Judgment, or elect not to participate in the Settlement Agreement. E. Reports and Declaration by Settlement Administrator. The Settlement Administrator will provide regular reports to the Parties, no less frequently than every two () weeks, regarding the status of the mailing of the Notice of Proposed Settlement and Claim Forms to Class Members, the number of Claim Forms that have been timely returned, and the number of Exclusion Forms that have been timely returned. If more than % of the Class Members timely file an Exclusion Form, the Settlement Administrator will provide written notice to that effect to both Class Counsel and Defense Counsel. At least fourteen () days prior to the deadline for filing the Motion for Final Approval of the Settlement Agreement, the Settlement Administrator shall provide counsel for the Parties a declaration of due diligence and proof of mailing with regard to the mailing of the Notice of Proposed Settlement and Claim Forms. VIII. RIGHT TO RESCIND. In the event that five percent (%) or more of the Class Members submit Exclusion Forms or other valid requests not to participate in the Settlement, Golden Living will have the exclusive right in its sole discretion to rescind the Settlement Agreement, and all actions taken in its furtherance will be null and void. Golden Living must exercise this right within fourteen () calendar days before the date of the Final Approval Hearing. IX. DISTRIBUTION OF THE SETTLEMENT PAYMENTS 0. Within five court days after the Preliminary Approval Order without material change, Defendant shall deposit Thirty Thousand Dollars and Zero Cents ($0,000.00) of the Total Settlement Amount with the Settlement Administrator, which sum shall be available to pay the Settlement Administrator s fees and expenses.. Case No. SCV

20 1 1. Within five court days of the date on which the Court issues the Final Approval Order without material change, Defendant shall deposit the balance of the total Settlement Amount with the Settlement Administrator. If after a notice of appeal, a petition for review, or a petition for certiorari, or any other motion, petition, or application, the reviewing court vacates, reverses, or modifies the Judgment such that there is a material modification to the Settlement Agreement (including, but not limited to, the scope of the release to be granted by Participating Class Members or the binding effect of the Settlement Agreement on Class Members who did not submit a valid Claim Form), then, save payments to the Settlement Administrator, all amounts deposited by Golden Living will be returned to it. This paragraph does not preclude Plaintiff or Class Counsel from appealing from a refusal by the Court to award the full Class Representative Payment, the Class Counsel Fees Payment, or the Class Counsel Litigation Expenses Payment sought by them.. Within five () calendar days after the Final Effective Date, the Claims Administrator will pay the Class Representative Payments to Plaintiffs, the Class Counsel Litigation Expenses Payment to Class Counsel, and the Class Counsel Fees Payment to Class Counsel.. Within five () business days of the Final Effective Date, the Settlement Administrator will pay the Net Individual Settlement Payments to the Participating Class Members.. If a settlement check is returned by the postal service, the Settlement Administrator may use appropriate methods, including but not limited to one skip-trace, to obtain the current address of the Participating Class Member. Within seven () days of obtaining a current address, the Settlement Administrator will r the check to the Participating Class Member.. The Settlement Administrator will timely remit the employer s and employee s portion of the payroll and other taxes associated with the settlement payments to the proper authorities, as required by law. In addition, the Settlement Administrator will timely issue to each Participating Class Member a Form W- that reflects the wage portion of the settlement payment and a Form that reflects the non-wage portion of the settlement payment. 1. Case No. SCV

21 1. If a Participating Class Member does not cash or deposit his or her check within ninety (0) days from the initial date of issuance, or if a settlement check is returned a second time, the Settlement Administrator shall cause that Participating Class Member s Individual Settlement Amount to be re-deposited in the Qualified Settlement Fund. In such case, such Individual Settlement Amount shall be paid to the California Labor & Workforce Development Agency ( LWDA ) as the cy pres recipient. Once payment to the LWDA occurs, the Qualified Settlement Fund shall be relieved of any further obligation to pay such Participating Class Member s Individual Settlement Amount, and such Participating Class Member shall have forfeited his or her right to the Individual Settlement Amount. X. RELEASE OF CLAIMS A. Released Claims by Class Members. As of the Final Effective Date, all Class Members who failed to submit a timely Exclusion Form release any and all claims, from June, 0, through the date of the Preliminary Approval Order, against Released Parties that were raised or that could have been raised under California law based upon the facts set forth in the Complaints including, but not limited to, any known or unknown claims relating to allegations that Golden Living failed to pay all overtime due, that Golden Living failed to provide all required meal periods and/or rest breaks, that Golden Living failed to pay Class Members all wages upon termination from employment, that Golden Living did not include all required accurate information on employee wage statements, and that Golden Living owes associated compensation and/or penalties, as founded on state law (the Released Claims ). The Released Claims include all such claims for wages and for civil or statutory penalties, including but not limited to claims under California Labor Code sections 1,,,,.,,,,.,,.,, claims for penalties under the Private Attorneys General Act ( PAGA ) (Cal. Labor Code sec., et. seq.); claims of unfair competition under Cal. Business and Professions Code sec. 0, et. seq.; and costs and attorneys fees and expenses relating to the Released Claims.. Case No. SCV

22 1. The claims released by those Class Members who fail to timely submit an Exclusion Form include all such claims, whether known or unknown by the releasing party, that fall within the scope of the Released Claims. Thus, even if a Class Member discovers facts and/or claims in addition to or different from those that they now know or believe to be true with respect to the subject matter of the Released Claims, those claims will remain released and forever barred. Therefore, with respect to those Released Claims, Class Members expressly waive and relinquish the provisions, rights and benefits of section of the California Civil Code, which reads: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.. The Individual Settlement Payment to Participating Class Members will not result in any additional benefit payments (such as 01(k) or bonus) or any claims under the Employee Retirement Income Security Act of, U.S.C. section 01 et seq. to Participating Class Members will be deemed to have waived all such claims in addition to any claims under the Fair Labor Standards Act for benefits premised upon their Individual Settlement Payment as part of their Released Claims under this Agreement. 0. Class Members (except for those who submit timely and valid Exclusion Forms) acknowledge that the Settlement Agreement is intended to include in its effect all claims which were or could have been asserted in the Action, including any claims that each Class Member does not know or suspect to exist in his or her favor against Release Parties. Consequently, with regard to claims that were brought or that could have arisen out of the facts Plaintiffs allege in the Action, the Class Members also waive all rights and benefits afforded by section of the California Civil Code, and do so understanding the significance of that waiver. Section provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the. Case No. SCV

23 1 release, which if known by him or her must have materially affected his or her settlement with the debtor. Released Claims by the Class Representatives 1. Within five days after the effective date, Plaintiffs will execute a General Release in a form to be agreed upon by the Parties. The form of the General Release will be filed with the Court at least two weeks prior to the Motion for Preliminary Approval. XI. DUTIES OF THE PARTIES PRIOR TO COURT APPROVAL. The Parties shall submit this Settlement Agreement to the Court in support of Plaintiff s Motion for Preliminary Approval and determination by the Court as to its fairness, adequacy, and reasonableness. As soon as reasonably possible upon execution of this Settlement Agreement, Plaintiffs shall apply to the Court for the entry of an Order Granting Preliminary Approval of the Settlement and Notice of Proposed Settlement which shall provide for, among other things, the following: a. Scheduling a Final Fairness and Approval Hearing on the question of whether the proposed Settlement Agreement should be finally approved as fair, reasonable and adequate as to the Class Members and providing that such Final Fairness and Approval Hearing be scheduled for a date that is no earlier than five months from the date of preliminary approval to allow the Parties and Settlement Administrator to perform their respective duties. b. Approving as to form and content the proposed Notice of Proposed Settlement described herein; c. Approving as to form and content the proposed Claim Forms and Exclusion Forms described herein; d. Directing the mailing of the Notice of Proposed Settlement, Claim Forms, and Exclusion Forms by first class mail to the Class Members; e. Preliminarily approving the Settlement; f. Preliminary certifying the Class for settlement purposes only; and. Case No. SCV

24 1 g. Approving Alan Harris and Priya Mohan of Harris & Ruble and David S. Harris of North Bay Law Group as Class Counsel, Plaintiffs as Class Representatives, and an administrator selected by Defendants and approved by Plaintiffs, as Settlement Administrator.. After the Preliminary Approval Order is entered by the Court, Plaintiffs shall file the motion for an award of attorneys fees and costs to be heard on the same hearing date as set by the Court for the final fairness and approval hearing. XII. DUTIES OF THE PARTIES FOLLOWING PRELIMINARY COURT APPROVAL. In connection with the final approval by the Court of the Settlement Agreement, Plaintiffs will submit a Proposed Order Granting Final Approval of the Class Action Settlement, Dismissing The Action With Prejudice and Final Judgment which shall provide, among other things, as follows: a. Approving the Settlement Agreement, adjudging the terms thereof to be fair, reasonable and adequate, and directing consummation of its terms and provisions; b. Approving Class Counsel s application for an award of attorneys fees and reimbursement of costs; c. Approving the Class Representative s service payment; and d. Entering Final Judgment and dismissing this Action on the merits and with prejudice, permanently barring the Class Members from prosecuting any and all Released Claims against the Released Parties, and permanently barring the Class Representatives from prosecuting any and all claims they released against the Released Parties. XIII. EFFECT OF NON-APPROVAL. If this Settlement Agreement is not preliminarily or finally approved by the Court and/or if a Final Approval Order is not entered dismissing the Action with prejudice or if Golden Living exercises the option to rescind (e.g., because more than % of the Stipulated Class Members file timely Exclusion Forms), this Settlement Agreement shall be null and void. In such event, (1) nothing in this Settlement Agreement shall be construed as a determination, admission, or concession of any issue in the Action, and nothing in this Settlement Agreement may be offered into. Case No. SCV

25 1 evidence in any trial on the merits of the claims asserted in the then-operative Complaint; and () the Parties expressly reserve their rights with respect to the prosecution and defense of the Action as if this Settlement Agreement never existed. If there is any reduction in the Class Representative Payments or the Court awards Class Counsel less attorneys fees and/or costs than they requested, such reductions may be appealed but are not a basis for rendering this Settlement Agreement void, voidable and/or unenforceable. XIV. CONFIDENTIALITY PRECEDING MOTION FOR PRELIMINARY APPROVAL. Except for disclosures authorized by Golden Living or necessary to prepare the motion for preliminary approval, the terms of this Settlement Agreement shall remain confidential until they are presented to the Court in connection with the Motion for Preliminary Approval. XV. COMMUNICATIONS WITH CLASS MEMBERS AND PUBLIC. No Party or counsel for a Party shall issue a press release or otherwise notify or initiate communication with the media about the settlement or terms of the Settlement Agreement or disclose any of the terms of the Settlement Agreement through oral, written, recorded or electronic communications. If Class Counsel or Defense Counsel are contacted by the media, Class Counsel and Defense Counsel shall be permitted to respond to such inquiries by stating only that the Parties have reached a resolution subject to the Court s approval or, if contacted after the Final Effective Date, Class Counsel and Defense Counsel shall be permitted to respond to such inquiries by stating only that the Parties reached an agreement which they believe is a fair and reasonable resolution of disputed claims. Class Counsel and Defense Counsel may not disclose any of the specific terms of the Settlement Agreement. XVI. MUTUAL FULL COOPERATION. The Parties will fully cooperate with each other and use their best efforts, including all efforts contemplated by this Settlement Agreement and any other efforts that may become necessary or ordered by the Court, or otherwise, to accomplish the terms of this Settlement Agreement, including but not limited to, executing such documents and taking such other action as. Case No. SCV

26 1 may reasonably be necessary to obtain preliminary and final approval of this Settlement Agreement and to implement its terms. XVII. NO PRIOR ASSIGNMENTS. The Parties represent, covenant, and warrant that they have not directly or indirectly, assigned, transferred, encumbered, or purported to assign, transfer, or encumber to any person or entity any portion of any claims, causes of action, demands, rights and liabilities of every nature and description released under this Settlement Agreement. XVIII. NOTICES 0. Unless otherwise specifically provided by this Settlement Agreement, all notices, demands or other communications given under this Settlement Agreement will be in writing and be deemed to have been duly given as of the third business day after mailing by United States registered or certified mail, return-receipt requested, addressed as follows: To Plaintiffs and the Class Members: Alan Harris Priya Mohan Harris & Ruble N. Central Avenue, th Floor Glendale, CA 0 Tel: -- Fax: --00 David S. Harris North Bay Law Group E. Blithedale Ave., Suite Mill Valley, CA 1 Tel: -- Fax: --0 To Defendant Golden Living: Keith R. Jewell General Counsel, Labor and Employment Law Golden Living 00 Fianna Way Fort Smith, AR -. Case No. SCV

27 1 XIX. CONSTRUCTION 1. This Settlement Agreement is the result of lengthy, arms-length negotiations between the Parties. This Settlement Agreement will not be construed in favor of or against any Party by reason of the extent to which any Party or his or its counsel participated in the drafting of this Settlement Agreement. XX. CAPTIONS AND INTERPRETATIONS. Paragraph and section titles, headings, or captions contained in this Settlement Agreement are inserted as a matter of convenience and for reference, and in no way define, limit, extend, or describe the scope of this Settlement Agreement or any of its provisions. Each term of this Settlement Agreement is contractual and not merely a recital, except for those set forth in Section I, above. XXI. MODIFICATION. This Settlement Agreement may not be changed, altered, or modified, except in writing and signed by the Parties and approved by the Court. This Settlement Agreement may not be discharged except by performance in accordance with its terms or by a writing signed by the Parties. XXII. APPLICABLE LAW. All terms and conditions of this Settlement Agreement will be governed by and interpreted according to the laws of the State of California, without giving effect to any conflict of law or choice of law principles. XXIII. INTEGRATION CLAUSE. This Settlement Agreement constitutes the entire agreement between the Parties relating to the Settlement Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, whether oral or written and whether by a Party or a Party s counsel, are merged into this Settlement Agreement. No rights under this Settlement Agreement may be waived except in writing.. Case No. SCV

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