SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO, CENTRAL JUSTICE CENTER

Transcription

1 J.D. Henderson (State Bar No. ) LAW OFFICE OF J.D. HENDERSON 1 North Marengo Avenue, Suite Pasadena, CA 01 Tel: () -1 JDLAW@charter.net Asaf Agazanof (State Bar No. 0) ASAF LAW APC W. Olympic Blvd. Suite 0 Los Angeles, CA 00 Tel: () -0 Fax: () asaf@lawasaf.com Attorneys for Plaintiff and the Class SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO, CENTRAL JUSTICE CENTER RAMON ESQUIVEL, an individual; on behalf of himself, all others similarly situated, and the general public, vs. Plaintiff, GREATWIDE DEDICATED TRANSPORT III, LLC dba GREATWIDE DEDICATED TRANSPORT, a Delaware limited liability company; and DOES 1 through 0, inclusive, Defendant. Case No CU-OE-CTL [CLASS ACTION] PLAINTIFF S NOTICE OF MOTION AND UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Date: April, 01 Time: :0 am Courtroom: C- Action Filed: April 0, 01 Trial Date: None Set

2 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on April, 01, at :0 am in Department C- of the above captioned Court, Plaintiff will move the Court for an order finally approving the settlement in this matter, awarding attorney fees in the amount of $,., awarding costs in the amount of $,0., and awarding class representative Ramon Esquivel an incentive award of $,000. The motion is based upon this Notice; the attached Memorandum of Points and Authorities; the declarations of J.D. Henderson and Ramon Esquivel, and, all matters of which this Court may take judicial notice, including all pleadings in this matter, and such evidence and argument as may be presented at the hearing Dated: April, 01 Respectfully submitted, By: J.D. Henderson Class Counsel

3 Table of Contents I. INTRODUCTION... 1 II. FACTUAL AND PROCEDURAL BACKGROUND... 1 A. The Parties... 1 B. Pertinent Procedural History... 1 III. LEGAL ANALYSIS... A. The Settlement is Excellent for the Class Members... B. Requirements For Final Approval Have Been Satisfied.... C. The Court Should Finally Certify the Settlement Class... D. An Ascertainable and Sufficiently Numerous Class Exists.... E. Common Questions of Law or Fact Predominate Over any Individual Questions. F. Plaintiff s Claims Are Typical... G. Adequacy of Plaintiff and Class Counsel... H. A Class Action is Superior to the Alternative of Individual Litigation... IV. CONCLUSION... i

4 Cases TABLE OF AUTHORITIES Anthony v. General Motors Corp. (1) Cal.App.d... Antonopulos v. N. Am. Thoroughbreds, Inc. (S.D. Cal. ) WL... Armenta v. Osmose, Inc. (00) 1 Cal.App.th 1... Ayala v. Antelope Valley Newspapers, Inc. (01) Cal.th... Bradley v. Networkers Int l (01) Cal.App.th... Brinker v. Sup. Ct. (01) Cal.th 0... Cellphone Termination Fee Cases (0) 1 Cal.App.th... Chavez v. Netflix (00) 1 Cal.App.th... Classen v. Weller (1) 1 Cal.App.d... Dunk v. Ford Motor Co. (1) Cal.App.th 1... Hanlon v. Chrysler Corp. (th Cir. 1) F.d... Hendershot v. Ready to Roll Transp. (01) Cal.App.th... In re BCBG Overtime Cases (00) 1 Cal.App.th 1... In re Public Serv. Co. of New Mexico (S.D. Cal. 1) 1 WL... In re Tobacco II Cases (00) Cal.th... In re United Energy Corp. Solar Power Modules Tax Shelter Investments Sec. Litig. (C.D. Cal. 1) 1 F.R.D La Sala v. Am. Sav. & Loan Assn. () Cal.d... McGhee v. Bank of America (1) 0... National Solar Equipment Owners Ass n v. Grumman Corp. () Cal.App.d 1... Richmond v. Dart Industries, Inc. () Cal.d..., Sav-On Drugs v. Sup. Ct. (00) Cal.th 1..., Sevidal v. Target (0) 1 Cal.App.th 0... Steinberg v. Allstate Ins. () Cal.App.rd 1... Vandervort v. Balboa Capital (C.D. Cal. 01) F.Supp.d 0... Vasquez v. Sup. Ct. () Cal.d ii

5 Statutes Code of Civil Procedure... Labor Code.... Treatises Federal Judicial Center, Manual for Complex Litigation (th ed. 00) iii

6 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This case concerns a piece-rate pay system for truck drivers which allegedly violated California labor laws. 1 The defendant denied all allegations. After the case was filed, Plaintiff Ramon Esquivel ( Plaintiff, Class Representative or Mr. Esquivel ) and Defendant Greatwide Dedicated Transport III, LLC ( Greatwide or Defendant ) met and informally exchanged information. After discovery into the underlying facts, the parties mediated with respected mediator Michael Dickstein. The parties reached a settlement for $,000 which resolves this action in its entirety. This Court has granted preliminary approval of this class action settlement. The proposed class action settlement was reached through extensive, mediated, arm s length negotiations, and is fair, adequate and reasonable, especially in light of recent legislation that permitted Greatwide to assert a new affirmative defense. The settlement meets the criteria for approval and is well within the range of what would be fair, reasonable, and adequate in this case. Reaction by class members has been positive, with no opt-outs or objections. The Class Representative now requests the Court grant Final Approval II. FACTUAL AND PROCEDURAL BACKGROUND A. The Parties Greatwide formerly employed truck drivers in California, but has ceased operations after being acquired by another company. Class Representative Ramon Esquivel was employed by Greatwide in California as a truck driver during the Class Period. Id. B. Pertinent Procedural History Since the Court granted preliminary approval, class members were provided with a courtapproved notice describing the settlement, how to object or opt-out, and notice of this hearing. Three notices were returned. Class members may object in person at this hearing (as they were advised in the class notice). As of this filing, there have been no opt-outs or objections. 1 The operative complaint alleged unpaid wages, failure to provide meal and rest breaks, failure to reimburse employees for business-related expenses, and derivative penalty causes of action. 1

7 III. LEGAL ANALYSIS When considering a motion for final approval of class action settlement, a court s inquiry is whether the settlement is fair, adequate, and reasonable. Dunk v. Ford Motor Co. (1) Cal.App.th 1, 1 fn.. A settlement is fair, adequate and reasonable, and merits approval when the interests of the class as a whole are better served if the litigation is resolved by the settlement rather than pursued. Federal Judicial Center, Manual for Complex Litigation (th ed. 00) 1.1. The trial court operates under a presumption of fairness when the settlement is the result of arm s length negotiations, investigation and discovery that are sufficient to permit counsel and the court to act intelligently, counsel are experienced in similar litigation, and the percentage of objectors is small. In re Microsoft I-V Cases (00) 1 Cal.App.th 0,. The trial court has broad discretion to determine whether the settlement is fair. Dunk, supra, Cal.App.th at 1. The factors considered in deciding whether to grant final approval to a class action settlement include: (1) the amount offered in settlement; () the risks inherent in continued litigation; () the extent of discovery completed and the stage of the proceedings when settlement was reached; () the complexity, expense and likely duration of the litigation absent settlement; () the experience and views of class counsel; and () the reaction of class members. Ibid. Those factors have been satisfied. A. The Settlement is Excellent for the Class Members Under the terms of the settlement agreed by the parties, Greatwide will make an all in non-reversionary payment of $, Declaration of J.D. Henderson in Support of Plaintiff s Motion for Preliminary Approval of Class Action Settlement ( Henderson Decl. ISO Prelim Approval ), Exhibit ( Exh. ) 1, 1. Subject to approval, this amount will be used to pay litigation costs, class notice and claims administration, attorney s fees, and a service award to the class representative Mr. Esquivel. This case, if not settled, easily could have resulted in no recovery whatsoever. Despite these risks, Mr. Esquivel achieved a very favorable class-wide settlement. This lawsuit concerned a piece-rate compensation system. Some causes of action were more susceptible to proof than others, particularly rest period claims. Rest periods must be paid

8 time, thus when an employee is only paid a piece-rate, payroll records show that no rest periods were paid. Armenta v. Osmose, Inc. (00) 1 Cal.App.th 1,. All other claims were much more problematic and presented difficult class certification issues. For instance, meal periods are unpaid, thus payroll records won t show that meal periods weren t provided. The same is true for the off-the-clock claims if there is off-the-clock work, it won t show in payroll records. While Class Counsel felt those causes of action have merit, it was clear the strongest cause of action concerned rest periods, while all others presented difficult and perhaps fatal obstacles, either in the class certification process or when it came to proving liability. The rest period claim was problematic due to the Safe Harbor Statute (Labor Code.) which, when successful as an affirmative defense, essentially wipes out claims arising from a piece-rate compensation system. This case presented new and unsettled questions about the impact and effect of the Safe Harbor Statute. Even if Plaintiff were successful in overturning that statute on constitutional grounds, nevertheless a lengthy appellate process was guaranteed. And that assumes Plaintiff would have succeeded in obtaining class certification in the first place. In addition, this early settlement protects the class from adverse changes in the law. The majority of damages suffered by class members were for missed breaks. At the time of settlement there was a bill pending in Congress that sought to preempt enforcement of California s break laws with respect to interstate truck drivers known as the Denham Amendment. Amendment to the Developing a Reliable and Innovative Vision for the Economy (DRIVE) Act, H.R., th Cong., available at FA01.pdf (last accessed March, 01). This adverse legislation seeks to overturn the Ninth Circuit s decision in Dilts v. Penske Logistics, LLC (th Cir. 01) F.d, and preempt California s meal and rest break laws. This would wipe out the majority of perhaps all of the class alleged damages. The Denham Amendment passed in the House. Given the risks of continued litigation and the affirmative defense of the Safe Harbor Statute, this settlement is outstanding. The settlement amounts to $. per workweek ($,000 / workweeks). Henderson Decl. ISO Prelim Approval, Exh. 1, fn. 1. The total alleged unpaid premium wages for rest period violations was $.0 per workweek (five missed rest

9 breaks/week multiplied by the hourly rate of $.0). Id. at 1. The settlement is thus % of the total amount of alleged unpaid rest period wages. That is ordinarily a very good outcome. In light of the Safe Harbor Statute and other tangible threats to recovery, this settlement can only be described as a truly excellent result. B. Requirements For Final Approval Have Been Satisfied. 1. Notice to the class and distribution of the settlement. The class administrator provided notice to the class members by first class mail. As of this filing, there have been no opt-outs or objections. Declaration of J.D. Henderson in Support of Final Approval ( Henderson Final Approval Decl. ),. The settlement includes payments to Class Members, the Labor Workforce and Development Agency, settlement administration costs, attorneys fees/costs, employer payroll taxes, and a service award to Mr. Esquivel. Henderson Decl. ISO Prelim Approval, Exh. 1, 1. The settlement is not a claims-made settlement. Instead, assuming the Court grants final approval, class members will simply be mailed a check via first-class mail by the third-party administrator (CPT Group). The manner of distribution is designed to maximize the likelihood that the class members will actually receive their money.. Evaluation of the settlement. The settlement of $,000 divided by the class members results in an average settlement amount per class member of over $,00. The settlement amount of $. per workweek is % of the total amount of alleged unpaid rest period wages. This is an outstanding result for the class, especially in light of the Safe Harbor Statute.. Attorney s fees. In the concurrently-filed motion for attorney s fees, costs and service payments, Class Counsel request attorney s fees of 1/rd ($,.). This is appropriate and reasonable given the contingent risk of continued litigation. It is not controversial to award attorney s fees to class counsel in a range between 1/rd to as high as 1/ (0%). See Steinberg v. Allstate Ins. () The division of fees among Class Counsel were disclosed and approved by the Class Representative in the contingency fee agreement. Henderson Final Approval Decl.,.

10 Cal.App.rd 1, [approving an attorney fee award of 0% out of a common fund]; Chavez v. Netflix (00) 1 Cal.App.th, n. [holding that [e]mpirical studies show that, regardless whether the percentage method or the lodestar method is used, fee awards in class actions average around one-third of the recovery ]; Antonopulos v. N. Am. Thoroughbreds, Inc. (S.D. Cal. ) WL, at * [awarding 1/]; In re Public Serv. Co. of New Mexico (S.D. Cal. 1) 1 WL, at *1 [awarding 1/].. Request for litigation costs. As set forth in the Motion for Attorneys Fees, Plaintiff seeks costs in the amount of $,0.. That covers filing fees, mediation fees, airfare, copy/scan costs, and PAGA fees.. Class representative service award. The settlement seeks a service award of $,000 for the class representative. This award is reasonable in recognition of Mr. Esquivel s assistance on behalf of the class. Courts in California have routinely approved incentive awards of $,000 or higher. Cellphone Termination Fee Cases (0) 1 Cal.App.th [$,000 award]; Vandervort v. Balboa Capital (C.D. Cal. 01) F.Supp.d 0 [$,000 award]. Mr. Esquivel initiated this action and provided documents. Because the parties reached a settlement very early in the litigation process, Mr. Esquivel was not called upon to do much, but he would have been called upon frequently had this case not settled. It was only through his efforts that class members are going to be paid in the first place. Given that the average settlement amount per class member is over $,00, a $,000 service award is justified.. Claims administration costs. The claims administration costs are not expected to exceed $,000. This includes costs for the expected number of mailings to distribute the notice and to distribute the settlement funds to the class. Henderson Final Approval Decl.,. Mr. Esquivel requests this cost be approved. California courts may look to federal cases for guidance when California has no contrary rule. In re BCBG Overtime Cases (00) 1 Cal.App.th 1, 1.

11 C. The Court Should Finally Certify the Settlement Class Code of Civil Procedure providing that when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all authorizes class actions. In re Tobacco II Cases (00) Cal.th, 1-. The requirements for class certification are: The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives. `In turn, the community of interest requirement embodies three factors: (1) predominant common questions of law or fact; () class representatives with claims or defenses typical of the class; and () class representatives who can adequately represent the class. Brinker v. Sup. Ct. (01) Cal.th 0, 1; accord Sav-On Drugs v. Sup. Ct. (00) Cal.th 1,. As all prerequisites to certification have been satisfied, the settlement class should be finally certified. D. An Ascertainable and Sufficiently Numerous Class Exists. The ascertainability requirement is satisfied when the class is defined by objective characteristics and common facts making the ultimate determination of class members possible. Sevidal v. Target (0) 1 Cal.App.th 0, 1; see also La Sala v. Am. Sav. & Loan Assn. () Cal.d, - n.. The class is defined as All drivers employed by Greatwide in the State of California during the Class Period. Because the class members are all former employees, this definition has led to the actual ascertainment of all class members. Therefore, the ascertainability requirement has been met. The class is also sufficiently numerous, making joinder impracticable. See, e.g., Vasquez v. Sup. Ct. () Cal.d 00, ; Hendershot v. Ready to Roll Transp. (01) Cal.App.th, 1. There are class members, therefore the numerosity requirement has been met. Henderson Decl. ISO Prelim Approval, 1.

12 E. Common Questions of Law or Fact Predominate Over any Individual Questions To determine whether common questions of law or fact predominate, [w]e begin by identifying the principal legal issues and examining the substantive law that will govern in order to answer whether the operative legal principles, as applied to the facts of the case, render the claims susceptible to resolution on a common basis. Ayala v. Antelope Valley Newspapers, Inc. (01) Cal.th, 0. In doing so, courts consider, whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amendable to class treatment. Sav-On, supra, Cal.th at ; see Bradley v. Networkers Int l (01) Cal.App.th, [ Brinker instructs that in determining whether common or individual issues predominate, a court must focus on the plaintiff s theory of recovery and assess the nature of the legal and factual disputes likely to be presented under this theory ]. Common issues may exist and predominate when, as here, the challenged acts allegedly are the same with regard to each class member. Sav-On, supra, Cal.th at 1. In this case, the class representative challenged a corporate-wide policy and practice - the piece-rate compensation system used by Greatwide that was common to all class members. No individualized inquiry is therefore necessary. Not only do common issues predominate, which is enough to satisfy the requirements for class certification, the entire case rises or falls entirely on the common issue of whether Defendant violated the Labor Code in the way it paid all of its California truck drivers. Thus, it is plainly evident that Plaintiff s theory of recovery is susceptible to common (class-wide) proof. F. Plaintiff s Claims Are Typical Typicality does not require that the plaintiff s claims be identical with those of other class members; as long as the claims of the class members are based on the same legal theories, even pronounced factual variances will not defeat typicality. Classen v. Weller (1) 1 Cal.App.d, ; Anthony v. General Motors Corp. (1) Cal.App.d, 0; Hanlon v. Chrysler Corp. (th Cir. 1) F.d, 0. A plaintiff's claim is typical of the claims of the proposed class members if it is aligned with the claims of other class members The theory behind this prerequisite is that a plaintiff with typical claims will pursue her own self-interest and

13 advance the interests of class members. In re United Energy Corp. Solar Power Modules Tax Shelter Investments Sec. Litig. (C.D. Cal. 1) 1 F.R.D. 1, (citations omitted). In this case, the claims of Mr. Esquivel are virtually identical to the claims of the class. The claims are all based on Defendant s piece-rate compensation system. The typicality requirement is thus satisfied. G. Adequacy of Plaintiff and Class Counsel The requirement that class representatives fairly and adequately represent the class is met by fulfilling two conditions: (a) the named plaintiffs must be represented by counsel experienced and qualified to conduct the pending litigation; and (b) the named plaintiffs interests cannot be antagonistic to those of the potential class members. McGhee v. Bank of America (1) 0 Cal.App.d, 0. Class Counsel meet that criteria because they have significant class action experience and have been frequently certified as class counsel in state and federal courts. Henderson Decl. ISO Prelim Approval, -. Further, the settlement itself speaks to their competence. Class Counsel have secured a settlement that achieves substantial benefits to class without incurring unnecessary expense or risk of further litigation, trial, and appeals. The class representative satisfies the adequacy requirement. His interests are identical to the interests of all the members of the class. Plaintiff was paid under the same piece-rate compensation system as all other class members, and was allegedly deprived of rest period premium wages just like all other class members. As the California Supreme Court held, only a conflict that goes to the very subject matter of the litigation will defeat a party s claim of representative status. Richmond v. Dart Industries, Inc. () Cal.d, 0 (reversing an order denying class certification; accord, National Solar Equipment Owners Ass n v. Grumman Corp. () Cal.App.d 1, 1 (reversing an order denying class certification, finding no irreconcilable conflict). The adequacy requirement has therefore been satisfied.

14 H. A Class Action is Superior to the Alternative of Individual Litigation Finally, the superiority requirement is also satisfied. A class action both eliminates the possibility of repetitious litigation and provides small claimants with a method of obtaining redress for claims which would otherwise be too small to warrant individual litigation. Richmond, supra, Cal.d at. Here, a class action is superior to individual actions. This is because this case involves employees with small individual wage claims. Consequently, the most economically rational means to litigate the individual class members claims is via a class action. Thus, this action is appropriate for class certification for settlement purposes, embodying all the hallmarks, both in form and in substance, of class actions routinely certified in California. 1 IV. CONCLUSION The settlement is fair, adequate and reasonable. The settlement merits final approval in accordance with California Rule of Court. and Code of Civil Procedure because it satisfies all of the requisite criteria for final approval. Based on the foregoing and because the settlement is beneficial to class members and will efficiently, economically and favorably resolve what could otherwise be protracted and expensive litigation, Plaintiff respectfully requests that the Court grant final approval of the settlement, the request for attorney s fees and costs, the request for approval of class administrator expenses, and the request for a service award for the class representative, in the entirety. 0 1 Dated: April, 01 Respectfully submitted, By: J.D. Henderson Class Counsel