UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Transcription

1 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 MARLIN & SALTZMAN, LLP Stanley D. Saltzman, Esq. (SBN 00) William A. Baird, Esq. (SBN ) 00 Agoura Road, Suite 0 Agoura Hills, California 0 Telephone: () -00 Facsimile: () -0 ssaltzman@marlinsaltzman.com tbaird@marlinsaltzman.com Attorneys for Plaintiffs MAYRA CASAS and JULIO FERNANDEZ, individually, and on behalf of all other similarly situated individuals MAYRA CASAS, JULIO FERNANDEZ, individuals, on behalf of themselves and all others similarly situated, v. Plaintiffs, UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA VICTORIA S SECRET STORES, LLC, a business entity of unknown form, L BRANDS (f/k/a LIMITED BRANDS), a business entity of unknown form, and DOES through 00, inclusive, Defendants. Case No. :-CV-0-GW(VBKx) (Assigned to Judge George H. Wu) CLASS ACTION PLAINTIFFS NOTICE OF MOTION AND (UNOPPOSED) MOTION FOR APPROVAL OF ATTORNEYS FEES, COSTS, AND ENHANCEMENT AWARDS, IN CONJUNCTION WITH FINAL APPROVAL OF CLASS SETTLEMENT DATE: November 0, 0 TIME: :0 a.m. CTRM: D Complaint Filed: July, 0 Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0GW

2 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 TABLE OF CONTENTS I. INTRODUCTION... II. SUMMARY OF THE EFFORTS OF CLASS COUNSEL... A. Procedural History... B. Defendant s Motions to Dismiss and Amended Complaints... C. Plaintiffs Interlocutory Appeal... D. Mediation and Settlement Agreement Reached By the Parties... E. Investigation... F. Settlement Approval Actions... III. THE REQUESTED ATTORNEYS FEES ARE REASONABLE... IV. A. A Fee Award Based on a Percentage of the Common Fund is Appropriate... 0 B. A Fee Award Of 0% Of The Common Fund Is Appropriate... C. Other Factors Support Plaintiffs Counsel s Fee Request.... The Results Achieved Support the Requested Fees.... The Substantial Risks of Contingent Litigation.... The Skill Of Counsel and the Work Performed Support The Fee Request.... The Lodestar Cross Check Attests to the Reasonableness of the Negotiated Fee Request... CLASS COUNSEL ARE ENTITLED TO REIMBURSEMENT OF THEIR REASONABLE LITIGATION EXPENSES... V. THE ENHANCEMENT AWARDS SHOULD BE APPROVED... VI. CONCLUSION... ii Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

3 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 TABLE OF AUTHORITIES Federal Cases Aarons v. BMW of N. Am., 0 U.S. Dist. LEXIS (C.D. Cal. 0)... Alvarado v. Nederend, 0 WL (E.D. Cal. 0)... Amochaev v. Citigroup Global Markets, Inc., Case No. 0- PJH (N.D. Cal. 00)... Anderson v. Nextel Retail Stores, LLC, No. CV 0-0 (C.D. Cal. 00)... Barbosa v. Cargill Meat Solutions Corp., F.R.D. (E.D. Cal. 0)... Barile, et al. v. Boston Market Corporation, Case No. 0-CV-0 BTM (JMA) (S.D. Cal. 00)... Bell Atlantic Corp. v. Twombly, 0 U.S. (00)... Benitez et al. v. Wilbur, Case No. :0-CV- LJO GSA (E.D. Cal. 00)... Bernal v. Davita, Inc., No. :-cv-0- PSG (N.D. Cal. 0)..., Bickley v. Schneider National Carrier Inc., Case No. :0-cv-00-JSW (N.D. Cal. 0)... Birch v. Office Depot, Inc., Case No. 0-CV-0 DMS (WMC) (S.D. Cal. 00)... Blum v. Stenson, U.S. ()... 0 Boeing Co. v. Van Gemert, U.S. (0)..., 0, Campbell v. PricewaterhouseCoopers, Case No. :0-cv-0-TLN-AC (E.D. Cal. 0)... Fernandez v. Victoria Secret Stores LLC, 00 U.S. Dist. LEXIS (C.D. Cal. 00)... vii,,, Fischel v. Equitable Life Assur. Soc., 0 Fd (th Cir 00)... iii Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

4 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 Glass v. UBS Fin. Servs., 00 U.S. Dist. LEXIS (N.D. Cal. 00)... Guippone v. BH S&B Holdings LLC, 0 U.S. Dist. LEXIS 0 (S.D.N.Y. 0)... Harris v. Marhoefer, F.d (th Cir. )... Hicks v. Toys R US Inc., Case No. :-cv-00-dsf-jcg (C.D. Cal. 0)... Hopkins v. Stryker Sales Corp, 0 WL (N.D. Cal. 0)... In re Activision Sec. Litig., F.Supp. (N.D.Cal.)...,, 0 In re Bluetooth Headset Products Liab. Litig., F.d (th Cir. 0)... 0 In re Heritage Bond Litig., 00 WL 0 (C.D. Cal. 00)..., In re Linerboard Antitrust Litig., 00 U.S. Dist. LEXIS 0 (E.D. PA. 00)... In re Mego Fin. Corp. Sec. Litig., F.d (th Cir. 000)... In re Omnivision Technologies, Inc., F.Supp.d 0 (N.D.Cal. 00)..., In re Pac. Enterprises Sec. Litig., F.d (th Cir. )... In re Rite Aid Corp. Secs. Litig., F.d (d Cir. 00)... 0 In re Walgreens Co Wage & Hour Litigation, Case No. :-cv-0 (E.D. Cal. 0)... 0 In re Washington Pub. Power Supply, F.d ( th Cir. )..., 0 Ingalls v. Hallmark Mktg. Corp., Case No. 0-CV--VBF (E) (C.D. Cal. 00)... Jones v. Bath & Body Works, Inc., No. CV -0 FMO (AJWx) (C.D. Cal. 0)... Kearney v. Hyundai Motor Am., 0 U.S. Dist. LEXIS (C.D. Cal. 0)... iv Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

5 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #:0 0 0 Kress v. Pricewaterhousecoopers LLP, Case No. :0-CV-00-TLN-AC (E.D. Cal. 0)... Linney v. Cellular Alaska P ship, F.d (th Cir. )... McKenzie v. Federal Express Corp., 0 U.S. Dist. LEXIS 0 (C.D. Cal. 0)... Missouri v Jenkins, US ()... Moreno v. City of Sacramento, F.d 0 (th Cir. 00)... Pasquale v. Kaiser Foundation Hospitals, Case No. 0-CV--MMA(NLS) (S.D. Cal. 00)... Paul, Johnson, Alston & Hunt v. Gaulty, F.d (th Cir. )... 0 Pennsylvania v. DE Valley Citi. Council for Clean Air (DE Valley II), US ()... Pokorny v. Quixtar, Inc., 0 U.S. Dist. LEXIS 00 (N.D. Cal. 0)... Richard v. Ameri-Force Mgmt. Servs., Inc., No (San Diego Sup. Ct. 00)..., Rippee, et al. v. Boston Market Corporation, Case No. 0-CV- BTM (JMA)... Rodriguez v. West Publ. Corp., 00 WL (C.D. Cal. 00)... Ross v. US Bank Nat l Ass n, 00 U.S. Dist. LEXIS 0 (N.D. Cal. 00)... Schaffer v. Litton Loan Servicing, LP, 0 U.S. Dist. LEXIS 0 (C.D. Cal. 0)... Singer v. Becton Dickinson & Co., 00 U.S. Dist. LEXIS (S.D. Cal. 00)... Steiner v. American Broad. Co., Fed. Appx. 0 (th Cir. 00)... Stevens v. Safeway, Inc., 00 U.S. Dist. LEXIS (C.D. Cal. 00)... Stuart v. Radioshack Corp., 00 U.S. Dist. LEXIS 0 (N.D. Cal. 00)... v Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

6 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 Sutton v. Bernard, 0 F.d (th Cir. 00)... 0 Van Vranken v. Atlantic Richfield Co., 0 F. Supp. (N.D. Cal. )... Vasquez v. Coast Valley Roofing, F.R.D. (E.D.Cal. 00)... Vincent v. Hughes Air West, Inc. F.d (th Cir. )... 0 Vizcaino v. Microsoft Corp., 0 F.d 0 (th Cir. 00)...passim York v. Starbucks Corp., Case No. 0-0 GAF (C.D. Cal. 0)..., State Cases Chavez v. Netflix, Inc., Cal. App. th. (00)..., Laffitte v. Robert Half International, Inc., Cal th 0 (0)... Lealao v. Beneficial Cal., Inc., Cal. App.th (000)... 0, Sutter Health Uninsured Pricing Cases, Cal. App. th (00)... Other Authorities Posner, Economic Analysis of Law (th ed. )... Richard Posner, Economic Analysis of Law. (d ed. )... vi Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

7 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 TO: ALL PARTIES HEREIN AND TO THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on November 0, 0, at :0 a.m. or as soon thereafter as the matter can be heard in Courtroom No. D of the above entitled courthouse located at 0 W. st Street, Los Angeles, California 00 (the st Street Courthouse ), Representative Plaintiffs Mayra Casas and Julio Fernandez ( Plaintiffs ) will move this Court for an order awarding Class Counsel Attorneys fees in the sum of $,00,000 (equal to 0% of the common fund established by the settlement between the parties), plus costs and necessary expenses of $0,. Additionally, Plaintiffs request that the Court approve enhancement awards to the Representative Plaintiffs in the amount of $0,000 to each Representative Plaintiff. Motion. Defendant Victoria s Secret Stores, LLC ( Defendant ) does not oppose this Said Motion shall be based upon this Notice of Motion, the accompanying Memorandum of Points & Authorities filed herewith, the declaration of Stanley D. Saltzman, Esq., the Settlement Agreement and Stipulation entered into by the Parties, and upon such further evidence, both documentary and oral, as may be presented at the hearing of said motion. DATED: October, 0 MARLIN & SALTZMAN, LLP By: /s/ Stanley D. Saltzman Stanley D. Saltzman, Esq. Attorneys for Plaintiffs and the Class Members Plaintiffs Counsel s expenses turned out to be lower than the originally requested amount of $0,000. Thus, counsel seeks costs for the lower number with the difference to go to the class members. vii Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

8 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 I. INTRODUCTION Representative Plaintiffs Mayra Casas and Julio Fernandez ( Plaintiffs ) brought this risky and novel class action to secure important workplace protections and to obtain compensation for the class members ( Class Members ). In particular, Plaintiffs sought to address Defendant Victoria s Secret Stores, LLC s, (hereafter, VS or Defendant ), Call-In Scheduling Policy which allegedly required employees to call in to Defendant to determine if they would be permitted to work a call-in shift that they were scheduled for that day. Plaintiffs allege that this scheduling practice required them to mold their lives around the possibility that they might have the chance to work more hours, even though often that did not occur. It was thus alleged that they could not plan any other pursuits during that time such as scheduling work hours with another job, attending classes, or making plans with friends and family. Essentially, Plaintiffs alleged that because there was no meaningful distinction between traditional scheduled shifts and Call-In shifts, that the employees were entitled to reporting time pay under California law when they were not permitted to work their call-in shift ( Call-In Shift ). Plaintiffs filed this suit as a result of Defendant not providing reporting time pay for these cancelled Call-In Shifts. While Plaintiffs alleged other claims, the Call-In scheduling practice was at the heart of the litigation. At the time the action was filed, Call-In scheduling not only allegedly adversely affected (from the employees standpoint) thousands of non-exempt VS employees in California, but literally hundreds of thousands of retail employees spread over different stores in California and across the nation. Notably, prior to filing this case, no court had ever addressed whether such Call-In Shifts triggered reporting time compensation for employees under California or Federal law. Undaunted by this lack of existing authority and steeled by their unique and novel arguments, Plaintiffs pushed forward with the Plaintiffs allege that Call-In Shifts occurred whenever the employees called their manager as instructed, and declared themselves ready, willing, and able to work the scheduled shift. Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

9 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 substantial risks required of such a case, with absolutely no assurance of compensation. Now, after almost three and a half years of extensive work and thorough litigation, Class Counsel s and representative Plaintiffs efforts have achieved a remarkable settlement with Defendant. The end result is a proposed Twelve Million Dollar ($,000,000) settlement for approximately 0,000 current and former hourly employees who were/are employed by Defendant during the applicable class period. Moreover and critically, less than a year after filing this lawsuit, in about July of 0, VS ceased utilizing the Call-in Shift practice entirely. What s more, numerous other retailers have followed suit. As explained further below, this case unquestionably played a role in those changes such that the efforts of the Plaintiffs and their counsel have positively changed the lives of so many retail employees across the country. The entire $,000,000 settlement will be paid out, without any Class Member being required to submit a claim form. No funds will revert to Defendant. The Notice of Settlement informs each Class Member that unless they affirmatively opt out of the settlement, they will receive their check once the settlement is approved. Uncashed checks will be tendered to the State of California s Unclaimed Wages Fund in the Class Member s name. Steps will be taken to try to locate such persons before this last step is taken, but in the end, every dollar will be paid out for the benefit of the class members, after deductions for approved fees, costs, incentive, and PAGA payments. Accordingly, this is a true common fund for the benefit of the Class Members and thus, a percentage of the fund fee award is proper. Boeing Co. v. Van Gemert, U.S., (0) (attorneys entitled to reasonable fee from common fund that their efforts created). Class Counsel delivered significant results for the Class Members in the face of adverse conditions and assumed substantial risk in litigating this action on a contingency This Memorandum incorporates, by reference, the definitions contained in the Settlement Agreement and Stipulation, and all terms defined therein shall have the same meaning in this Memorandum. Docket No. 0-, Exhibit A to Declaration of Stanley Saltzman ISO Motion For Preliminary Approval. Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

10 Case :-cv-0-gw-vbk Document Filed 0/0/ Page 0 of Page ID #: 0 0 basis, and eventually invested almost 00 hours towards the active prosecution of Plaintiffs claims. Indeed, given the lack of supporting precedent the stakes where high and Plaintiffs could have lost on the merits (as evidenced by the Court s early dismissal of Plaintiffs reporting time cause of action), at class certification, or at trial. If that had happened, Class Counsel would have lost their entire investment of time and expense. As set forth in Section II.E of this brief, Class Counsel s work was extensive and focused. Having obtained valuable relief for the class and having helped change a pervasive and wide ranging industry practice, in the face of true risk and uncertainty, Plaintiffs seek an award of fees in the amount of 0% of the total settlement fund, or $,00,000. The requested award is fair, reasonable, and appropriate under the common fund doctrine in light of the favorable results obtained, the complexities of the case, and the contingent risk assumed by Class Counsel. The percentage requested is entirely consistent with fee awards in similar wage and hour class actions. Although % is the benchmark in the Ninth Circuit for attorney fee awards from common funds, District Judge Conti of the Northern District has noted that, in most common fund cases, the award exceeds that benchmark. In re Omnivision Technologies, Inc., F.Supp.d 0, 0 (N.D.Cal., 00); see e.g., In re Activision Sec. Litig., F.Supp., (N.D.Cal.)(surveying cases nationwide and noting, [T]his court's review of recent reported cases discloses that nearly all common fund awards range around 0%... (emphasis added)). Given the risk factors that would apply to trial and certification, and the results achieved, this settlement presents a substantial recovery meriting the upward adjustment to the benchmark. Plaintiffs Counsel also seek reimbursement of litigation expenses in the amount of $0,. These reasonable costs were incurred in connection with the prosecution and settlement of the action and are reimbursable. Finally, Plaintiffs respectfully request that the Court award a service enhancement of $0,000 to each Class Representative. Settlement simply would not have been possible without their efforts. Accordingly, Plaintiffs respectfully request approval of the requested attorneys Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

11 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 fees, costs, and service enhancements, as being fair and reasonable. II. SUMMARY OF THE EFFORTS OF CLASS COUNSEL A. Procedural History Plaintiff Casas filed the instant Action, entitled Mayra Casas, et al. v. Victoria s Secret Stores, LLC, et al., in Los Angeles County Superior Court on July, 0. Therein, Casas alleged causes of action for: () Failure to pay reporting time on regularly scheduled shifts ( Cal. Code Regs. 00(); Cal. Lab. Code ); () Failure to pay reporting time on Call-In Shifts ( Cal. Code Regs. 00(); Cal. Lab. Code ); () Failure to pay for all time worked (Cal. Lab. Code 0,,.,, and ; Wage Order); () Failure to maintain required business records (Cal. Lab. Code,.; Wage Order); () Failure to provide accurate itemized wage statements (Cal. Lab. Code,.; Wage Order); () Unfair business practices (Bus. & Prof. Code 00, et seq.); and () Civil penalties under the Private Attorneys General Act (Cal. Lab. Code, et seq.). (Declaration of Stanley Saltzman ISO Plaintiffs Motion for Attorney Fees ( Saltzman Decl. ). Defendant removed the action to the Central District, where it was assigned Case No. :-cv-0-gw (VBKx). On September, 0, Plaintiffs filed a First Amended Complaint ( FAC ), adding Julio Fernandez, a then former employee, as a class representative. (Id. at ). B. Defendant s Motions to Dismiss and Amended Complaints On September, 0, Defendant moved to dismiss Plaintiffs FAC. Defendant s comprehensive motion sought to dismiss each of Plaintiffs causes of action. In particular, Defendant argued that Plaintiffs second cause of action for failure to pay reporting time pay for Call-In Shifts presented a novel but completely untenable theory wherein an employer was required to provide reporting time pay for call-in shifts even when the employee was not required to physically report to one of its stores. Defendant also contended that Plaintiffs asserted yet another novel theory by seeking relief for what defendant believed to be non-compensable activities that occurred off-the-clock before Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

12 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 and after scheduled shifts. Finally, Defendant argued that each of Plaintiffs causes of action should be dismissed for failing to meet the required pleading standards outlined in Bell Atlantic Corp. v. Twombly, 0 U.S. (00). (Saltzman Decl. ). Plaintiffs vigorously opposed the motion and filed their opposition on September, 0. On or about October 0, 0, the Court heard oral argument and issued a tentative ruling granting a portion of Defendant s motion, denying other parts, and ordering the parties to submit additional briefing on what the term report to work meant in the applicable Wage Order the meaning of which would determine the success of Plaintiffs second cause of action and most valuable claim. (See Docket No. ). The parties submitted supplemental briefing on November, 0, and replies on November 0, 0. On December, 0, the Court heard oral argument again on the motion. On December, 0, the Court issued its ruling, dismissing Plaintiffs second cause of action with prejudice on the grounds that reporting time pay was not triggered unless an employee physically reported to the workplace, and otherwise denying the remainder of Defendant s motion. (Saltzman Decl. ). On December, 0, Plaintiffs filed a Second Amended Complaint ( SAC ), alleging causes of action for: () Failure to pay reporting time pay ( Cal. Code Regs. 00(); Cal. Lab. Code ); () Failure to pay overtime (Cal. Lab. Code 0, ; Wage Order); () Failure to pay minimum wage (Cal. Lab. Code.,.,,., ; Wage Order); () Failure to maintain required business records (Cal. Lab. Code,.; Wage Order); () Failure to provide accurate itemized wage statements (Cal. Lab. Code,.; Wage Order); () Failure to pay all wages earned at termination (Cal. Lab. Code 00 0); () Unlawful business practices (Bus. & Prof. Code 00, et seq.); () Unfair business practices (Bus. & Prof. Code 00, et seq.)( 00 ); and () Civil penalties under the Private Attorneys General Act (Cal. Lab. Code, et seq.) ( PAGA ). (Docket No. ). On January, 0, Defendant filed a motion to dismiss Plaintiffs SAC, challenging Plaintiffs third cause of action for minimum wage (premised on Defendant s Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

13 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 failure to pay employees for the time they were on the phone waiting to see if they would be allowed to work a scheduled shift) as well as Plaintiffs causes of action (wage statements), (00 claim) and (PAGA). On or about February, 0, the Court denied in part and granted in part Defendant s motion, denying as to Plaintiffs minimum wage claim that the time spent calling in could be considered hours worked, denying also as to causes of action and, but granting without prejudice against cause of action for lack of standing contending that Plaintiffs had not properly alleged a loss. (Docket No. ). On February, 0, Plaintiffs filed their Third Amended Complaint ( TAC ), and on February, 0, Defendant filed another motion to dismiss that was aimed at cause of action number (00), again arguing that Plaintiffs reporting time claim for Call-In Shifts was an unprecedented, novel and non-viable claim under California law. Following a hearing on April, 0 the motion was denied without prejudice. C. Plaintiffs Interlocutory Appeal On January, 0, Plaintiffs moved this Court, pursuant to U.S.C. (b), to certify for interlocutory appeal its order dismissing Plaintiffs second cause of action from the FAC. As explained in Plaintiffs Motion, the vast majority of the damages arose from Plaintiffs reporting time theory for Call-In Shifts. Plaintiffs asserted that the question of whether physical attendance is required to satisfy Wage Order Section s report for work requirement presented a unique and novel issue of first impression concerning an employment practice affecting tens of thousands of workers in the State. Over Defendant s objections, the Court granted Plaintiffs motion. In its order, the Court implicitly recognized Plaintiffs counsel skillful advocacy and creativity on behalf of the Class Members through uncharted waters when it stated that: Plaintiffs reporting-time claim unquestionably presents a novel question. Despite the hundreds/thousands of California wage-and-hour actions filed each year, neither the parties nor the Court located a single on-point case addressing a claim similar to the Plaintiffs reporting time claim, or, more generally, interpreting what it means to report for work under Wage Order -00 (or any other Wage Order). Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

14 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 (Docket No., p.). The Court acknowledged that the Call-In Shift claim was central to the case and one that almost all of Plaintiffs damages arose from. Id. at. Thereafter, the Ninth Circuit granted the petition for interlocutory appeal, following which the parties filed full merits briefing. The briefing of course was extensive and focused on an issue as to which there was simply no guiding law, nor even any decisions closely related to the issue. Upon the completion of thorough briefing, the parties participated in oral argument before the Ninth Circuit on October, 0. D. Mediation and Settlement Agreement Reached By the Parties Even prior to the hearing in the Ninth Circuit, the Parties had agreed to attend a mediation session to occur after the oral argument. The Parties felt it was critical to resolution to have the benefit of any guidance that the oral argument might offer. Following the October, 0 argument, and the parties attended mediation before Steven G. Pearl, Esq., of ADR Services, Inc., on October, 0. (Saltzman Decl. ). At the mediation, Plaintiffs Counsel actually played for the mediator a portion of the oral argument in the Ninth Circuit, which they felt was instructive and informative. Late that day, the Parties were able to reach an agreement to resolve the Action as reflected in the Settlement Agreement now before this Court. (Id. at ). E. Investigation Plaintiffs, through their counsel, conducted a detailed legal and factual investigation of the claims asserted against Defendant. Although the Action was stayed during portions of the extensive district court briefing and appellate proceedings, the Parties agreed to engage in extensive informal discovery to prepare for mediation. Thus, throughout the litigation and eventually in anticipation of mediation, Class Counsel engaged in the following litigation actions, amongst many: Working closely with the representative Plaintiffs; (Saltzman Decl. 0-) Investigating both the factual and legal underpinnings of this case; (Id.), Responding to several motions to dismiss that sought to shut down the case entirely and alternatively to limit significant claims in the case, which briefing Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

15 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #:0 0 0 regularly involved extraordinary and extensive research into issues of first impression; (Id.), Engaging in comprehensive multi-level appellate briefing; (Id.), Preparing for and arguing the appeal to the Ninth Circuit; (Id.), Analyzing and evaluating relevant data provided; (Id.), Reviewing and analyzing the statistical impact of the Class Members payroll records; (Id.), Engaging in informal investigation (including conducting interviews of Class Members); (Id.), Researching applicable law, including ordering, studying and briefing the relevant legislative history; (Id.), Extensively analyzing damages; (Id.), Attending Hearings, Conferences, Meetings and eventually mediation; (Id.), Drafting Pleadings (Motions, Oppositions, Declarations, etc.) and Correspondence; (Id.), and, Fielding numerous inquires from Class Members. (Id.). Based on all of the foregoing, Plaintiffs were thoroughly prepared for the mediation, as was Defendant, and the Parties were able to reach the settlement now presented for approval. Overall, Plaintiffs investigation, both formal and informal, permitted a thorough and detailed analysis of the viability of certification, as well as evaluations of the merits of the claims and Defendant s defenses, as well as Defendant s potential exposure for the damages at issue in this litigation. These factors indicated that the settlement was a fair and reasonable resolution of the Action. (Id. at ). F. Settlement Approval Actions Thereafter, Class Counsel and Defendant worked together to formulate the formal Settlement Agreement now before the Court, along with the proposed Notice that was eventually approved by the Court. Class Counsel also prepared the Motion for Preliminary Approval, supporting declarations, and considered bids from and then Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

16 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 decided on a claims administrator, with the agreement of Defendant. On June, 0, Class Counsel filed the Motion for Preliminary Approval. Thereafter, based on instructions from the Court, at hearings on July, August, and August 0, Class Counsel filed various amended and supplemental documents. (Id. at ). August, 0, the Court preliminarily approved the settlement. (Docket No. ). Since approval, the parties have expended additional and ongoing efforts completing the tasks required to effectuate the settlement, including working with the settlement administrator, finalizing class notice, and setting up a class website and the -hour telephone call-in number. In addition, Class Counsel has fielded numerous phone calls from Class Members and spent many hours preparing this motion as well as the final approval motion. Counsel anticipates many more hours finalizing this settlement, including attending the final approval hearing, working with Class Members who need assistance, and following up on the settlement to ensure that payments due to Class Members both occur, and end up with them. (Saltzman Decl. ). III. THE REQUESTED ATTORNEYS FEES ARE REASONABLE The fees sought by Class Counsel relate to all efforts expended by Class Counsel for the complete handling of this case, including any additional work remaining to be performed by Class Counsel in securing final Court approval of the Settlement, and then ensuring that the Settlement is fairly administered and fully implemented. Class Counsel submits that the effort and result justify the fee request. Marlin & Saltzman has an extremely well documented history of involvement in significant class actions generally, and more specifically in wage and hour class actions. As set forth in detail in the declaration of Stan Saltzman, the firm regularly achieves outstanding results, and the present settlement is no exception. (Id. at ). The efforts of Class Counsel on the particularly novel legal issue driving this matter ultimately resulted in a very beneficial resolution of this action. The analysis, investigation and motion practice performed in this case was comprehensive and entirely supportive of the results achieved. Further, since reaching the settlement, substantial Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW On

17 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 additional work has been required to enable Counsel to obtain preliminary approval, and will be required in order to obtain final approval of the settlement. A. A Fee Award Based on a Percentage of the Common Fund is Appropriate The Supreme Court has consistently recognized that a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as a whole. Boeing Co., U.S. at. The percentage of the fund recovery, or Common Fund Doctrine, provides that when a litigant s efforts create or preserve a fund from which others derive benefits, the litigant may require the passive beneficiaries to compensate those who created the fund. The purpose of this equitable doctrine is, in part, to spread litigation costs proportionally among all the beneficiaries so that the active beneficiary does not bear the entire burden alone. See, Vincent v. Hughes Air West, Inc. F.d, (th Cir. ). Both State and Federal courts in California have embraced the Common Fund Doctrine. Id. at. Courts have consistently recognized that class litigation is necessary to protect the rights of individuals whose injuries and/or damages are too small to economically justify individual actions. In Paul, Johnson, Alston & Hunt v. Gaulty, F.d (th Cir. ), the Ninth Circuit endorsed this principle when it stated: [I]t is well settled that the lawyer who creates a common fund is allowed an extra reward, beyond that which he has arranged with his client, so that he might share the wealth of those upon whom he has conferred a benefit. The amount of such a reward is that which is deemed reasonable under the circumstance. Id. at. Indeed, attorneys must be encouraged to incur the enormous risks of time and money necessary to vindicate the public interest, and to protect the employment public policies. To fulfill this policy, attorney fee awards should be equivalent to fees paid in the legal marketplace to compensate for the result achieved and risk incurred. See Lealao v. Beneficial Cal., Inc., Cal. App.th (000); Sutton v. Bernard, 0 F.d, (th Cir. 00) (noting that applying the percentage method of the common fund advances the judicial policy of award[ing] counsel the market price for legal services. ). 0 Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

18 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 The accompanying declaration of Stanley D. Saltzman establishes that the fee percentage sought herein is entirely in line with what would be generated in the legal marketplace in California if individual Class Members sought contingent representation. (Saltzman Decl. 0). Thus, here, with a gross non-reversionary recovery of $,000,000, Class Counsel should be entitled to recover the fees that they would have freely obtained in the marketplace, which as the Saltzman declaration notes would be between.% and 0%. Here, Class Counsel seeks even less with a fee request of only 0%. B. A Fee Award Of 0% Of The Common Fund Is Appropriate The California Supreme Court in Laffitte v. Robert Half International, Inc., Cal th 0 (0), recently affirmed percentage awards for attorney fees from common funds, and then upheld a.% attorney fee award from the common fund in a wage and hour class action. See e.g., Chavez v. Netflix, Inc., Cal. App. th., n. (00) Empirical studies show that... few awards in class average around one-third of the recovery. ). Further, while the Ninth Circuit has generally established % of a common fund as the benchmark award for attorney fees, Vizcaino v. Microsoft Corp., 0 F.d 0, 0-0 (th Cir. 00), it has also held that benchmark is only the starting point for the analysis and that the exact percentage to be awarded varies based on the facts of the case but that in most common fund cases, the award exceeds that benchmark. In re Omnivision Technologies, Inc., F.Supp.d at 0(emphasis added); In re Activision Sec. Litig., F.Supp. at ( [T]his court's review of recent reported cases discloses that nearly all common fund awards range around 0%... )(emphasis added); Vasquez v. Coast Valley Roofing, F.R.D., (E.D.Cal., 00)(noting that in most common fund cases, the award exceeds that benchmark and citing five wage and hour class actions with fee awards from 0% to %)(citations omitted)(emphasis added); Pokorny v. Quixtar, Inc., No. C 0-00 SC, 0 U.S. Dist. LEXIS 00 (N.D. Cal. July, 0) (the Ninth Circuit uses a % baseline in common fund class actions, and in most common fund cases, the award exceeds that Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

19 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 benchmark, with a 0% award the norm absent extraordinary circumstances that suggest reasons to lower or increase the percentage )(emphasis added); In re Heritage Bond Litig., No. 0-ML- DT, 00 WL 0, at *, n. (C.D. Cal. June 0, 00) (noting more than 00 federal cases have awarded fees higher than 0%). District courts within this circuit routinely award fees of one-third of the common fund, particularly for wage and hour class action settlements. See, e.g., Barbosa v. Cargill Meat Solutions Corp., F.R.D. (E.D. Cal. July, 0) (awarding.% of the settlement fund in a wage and hour class action because there were sufficient reasons to exceed [the benchmark] considering the risk of the litigation, the contingent nature of the work, the favorable reaction of the class, and the fee awards in other wage-and-hour cases ); Bernal v. Davita, Inc., No. :-cv-0- PSG, *- (N.D. Cal. Jan., 0) (awarding.% of the settlement fund in a wage and hour class action); Bickley v. Schneider National Carrier Inc., Case No. :0-cv-00-JSW (N.D. Cal. 0)(Docket. )(awarding.% of the non-reversionary settlement fund of $ million in wage and hour class action as attorney fees); Jones v. Bath & Body Works, Inc., No. CV - 0 FMO (AJWx) (C.D. Cal. 0)(approving fee of 0%)(Docket No. p.). In awarding % of the common fund to class counsel in an employment case, District Judge Morrow explained that an award of % of the fund (in a case against the same defendant as in this case) is supported by the fact that typical contingency fee agreements provide that class counsel will recover % if the case is resolved before trial See also Campbell v PricewaterhouseCoopers, Case No. :0-cv-0-TLN-AC (E.D. Cal.May, 0)(Docket No. )(awarding 0% of the settlement fund in a wage and hour class action); Hicks v. Toys R US Inc., Case No. :-cv-00-dsf-jcg (C.D. Cal. Sept., 0) (awarding 0% of the settlement fund in a wage and hour class action); Kress v. Pricewaterhousecoopers LLP, Case No. :0-CV-00-TLN-AC (E.D. Cal. Sept., 0)(Docket No. 0)(awarding.% of the settlement fund in a wage and hour class action as attorney fees); Singer v. Becton Dickinson & Co., Case No. 0-CV- - IEG (BLM), 00 U.S. Dist. LEXIS, at *- (S.D. Cal. Jun., 00) (noting that the amount of.% of the common fund for a wage and hour class action settlement falls within the typical range of fee awards); Stuart v. Radioshack Corp., Case No. C-0- EMC, 00 U.S. Dist. LEXIS 0 (N.D. Cal. Aug., 00)(awarding.% of settlement fund in a wage and hour class action and noting that [t]his is well within the range of percentages which courts have upheld as reasonable in other class action lawsuits ). Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

20 Case :-cv-0-gw-vbk Document Filed 0/0/ Page 0 of Page ID #: 0 0 and 0% if the case is tried. Fernandez v. Victoria Secret Stores LLC, No MMM, 00 U.S. Dist. LEXIS, *- (C.D. Cal. July, 00) (citing an academic study collecting contingency fee agreements)(emphasis added). In sum, longstanding approval by our courts for fee awards in excess of 0% for settlements in wage and hour class actions along with the stated rationale for that percentage support the reasonableness of Plaintiffs attorney fee request. See, e.g.,hopkins v. Stryker Sales Corp, 0 WL, * (N.D. Cal. 0)(citing six class actions with fee award of at least.%); In re Mego Fin. Corp. Sec. Litig., F.d, (th Cir. 000) (affirming.% of the common fund); In re Pac. Enterprises Sec. Litig., F.d, - (th Cir. ) (affirming.% of a $ million common fund). In short, the non-reversionary settlement sum of $,000,000 constitutes a substantial common fund. Awarding fees as a percentage of the fund is consistent with other wage and hour cases. Doing so also aligns the interests of Class Counsel and absent Class Members in achieving the maximum possible resolution. As set out in detail in the Preliminary Approval Motion and declarations filed in support of this motion, the Class Members in this matter are recovering significant sums of money for their claims. This is not by chance, but rather is because Class Counsel fought for and created a common fund that will be fully paid out and enables Class Members to easily obtain their payments. The amount requested is both reasonable and consistent with the experience of Class Counsel, the effort expended, and certainly with the outcome achieved for the Class Members. Therefore, Class Counsel respectfully submits that all of the relevant See also, Alvarado v. Nederend, Case No. :0 cv 00 OWW DLB, 0 WL (E.D. Cal. May, 0) [.%]; Benitez et al. v. Wilbur, Case No. :0-CV- LJO GSA (E.D. Cal. Dec., 00) [.%]; Birch v. Office Depot, Inc., Case No. 0-CV-0 DMS (WMC) (S.D. Cal. Sept., 00) [0%]; Chavez et al. v. Petrissans et al., Case No. :0-CV-00 LJO-GSA (E.D. Cal. Dec., 00) [.%]; Ingalls v. Hallmark Mktg. Corp., Case No. 0-CV--VBF (E) (C.D. Cal. Oct., 00) [.%]; Pasquale v. Kaiser Foundation Hospitals, Case No. 0-CV--MMA(NLS) (S.D. Cal. April, 00) [.%]; Rippee, et al. v. Boston Market Corporation, Case No. 0-CV- BTM (JMA) and Barile, et al. v. Boston Market Corporation, Case No. 0-CV-0 BTM (JMA) (S.D. Cal., 00) [0%]; Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

21 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 factors weigh in favor of awarding fees in the amount of 0% of the common fund. C. Other Factors Support Plaintiffs Counsel s Fee Request Aside from the results achieved and awards in comparable cases, the Ninth Circuit has held that the additional factors that Courts may consider when evaluating the fairness of an award include: () the risk of litigation; () the skill required and quality of work; () the contingent nature of the fee and the financial burden carried by the plaintiffs; and () a lodestar cross check. Vizcaino v. Microsoft Corp., 0 F.d 0, 0-0 (th Cir. 00). All of these factors weigh in favor of the percentage sought here.. The Results Achieved Support the Requested Fees By taking action to enforce state labor laws, Plaintiffs and Class Counsel have in this case vindicated the rights of over 0,000 workers, secured $,000,000 in relief for their claims, and achieved the elimination of an adverse policy to employees. On a very elementary average payment basis, before consideration of reductions for fees, costs, etc., the overall average payment for all of the Class Members will be $00.00 ($MM divided by ~0,000). A more relevant and refined way to consider average payments, in order to account for the large turnover rate which is so typical in large retail environments, is to analyze the average payments tied to what is sometimes referred to as the number of full time equivalent (or FTE) employees. As explained further in the Saltzman Declaration, analyzed this way, the average settlement amount to be received herein on a per position FTE basis would be $,.00 ($MM divided by,0 employees). Thus, any employees who happen to have remained with VS throughout the class period, as non-exempt retail staff falling within the Class Definition, would stand to receive a gross settlement allocation of $,.00 each. This represents an extraordinary result for a failure to pay reporting time pay, the primary claim herein. The global average, as clearly exemplified via the comparison with the average for each of the FTE employees, is diluted by virtue of the large turnover and thus the short tenures of the average employees. In short, the settlement fund is real, individually constructed, and fully payable. Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

22 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 Here, the public interest served by Plaintiffs lawsuit likewise supports the requested award of attorneys fees in that Plaintiffs action has conferred significant benefits on the general public by enforcing state labor laws as well as playing a role in the widespread elimination of on-call scheduling practices. As noted, the Call-In policy challenged in the lawsuit has been discontinued by VS. In fact, numerous other retailers have also discontinued their use of the same or similar policies in the time since the lawsuit was filed. In April of 0, following the filing of this case in July 0, and publicity generated about the same, the Attorney General for the State of New York sent letters to retailers operating in that state, demanding that the retailers provide information regarding similar on-call scheduling practices. See Articles, and, at Saltzman Decl. -. These retailers operate more than,000 stores and are all household names. Id. In June of 0, VS announced it was ending its on-call scheduling. By the end of 0, Pier also did so, followed soon thereafter by Abercrombie & Fitch Co., The Gap Inc., J. Crew Group Inc., Urban Outfitters Inc. and Bath & Body Works LLC. See Articles and, at Saltzman Decl. -. In April 0, New York s Attorney General was joined by eight other attorneys general (from California, Connecticut, Illinois, Maryland, Massachusetts, Minnesota, Rhode Island, and the District of Columbia) in demanding that another group of retailers provide information regarding subjecting their employees to uncompensated on-call shifts. See Article, at Saltzman Decl. -. In December, 0, The Walt Disney Co., Carter s Inc., Aeropostale, Inc., David s Tea, Inc., Pacific Sunwear of California, Inc., and Zumiez, Inc. also agreed to end on-call shifts. See Article, at Saltzman Decl. -. Thus, this case not only brought about significant positive change for the thousands of hourly employees of VS, it also played a role in doing so for literally hundreds of thousands of retail employees across the country, working for the many other retailers identified above. (Saltzman Decl. -). Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

23 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 When this case is long over, and hopefully the settlement is long approved and carried out, the tens of thousands of VS employees and hundreds of thousands of other employees across the nation will continue to benefit from the filing of this case, its pursuit through the district court, the court of appeals, and this resolution. (Id.) Given the outstanding results on behalf of the Class Members, Plaintiffs action will also undoubtedly deter other similarly situated employers from failing to appropriately pay their employees. As relevant to the fee request, unless competent attorneys are fully compensated when they take on major companies like Defendant herein, unlawful practices will likely go unchecked. In Lealao, Cal. App. th at, the court held that in determining the appropriate award of attorneys fees, the trial court should consider the need to encourage the private enforcement necessary to vindicate many legal rights, as well as the role that representative actions play in relieving the courts of the need to separately adjudicate numerous claims. In making its determination here, the Court should also weigh the benefits that the settlement will realize for the class against the uncertainty of litigation and the possibility that the Class Members would obtain no relief in the absence of a settlement. See Linney v. Cellular Alaska P ship, F.d, (th Cir. ) (...it is the very uncertainty of outcome in litigation and avoidance of wasteful and expensive litigation that induce consensual settlements. ). Of course, in a situation where the primary claim has been dismissed and appealed, the risks of litigation are even more clearly heightened.. The Substantial Risks of Contingent Litigation The significant risks incurred in pursuing this litigation also support the requested attorneys fees and costs. Class Counsel took this case on a pure contingency basis, and had no guarantee that any remuneration for the many hours over,000 would ever be received, or for the $0, in out-of-pocket costs which they reasonably incurred during the matter s pendency. Indeed, all of the financial risk of litigation was born by Class Counsel, whose fee arrangement with Plaintiffs and the Class Members is entirely contingent and under which Class Counsel bears all of the costs of litigation and the Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

24 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #: 0 0 expenditure of all of the attorney time necessary to achieve this beneficial result for the Class Members. Thus, had Class Counsel s efforts failed, they would have recovered nothing for their substantial investment of time and money in this case. However, had they not taken on the risks of this case, and put aside other possible cases in order to devote time to it, the Class Members would never have recovered the funds that they will in this case and would still be subject to Call-In Shift scheduling practices. Large-scale litigation of this type is, by its very nature, complicated and time consuming. Any law firm undertaking representation of a large number of affected employees in wage and hour actions inevitably must be prepared to make a tremendous investment of time, energy, and resources. Due also to the contingent nature of the customary fee arrangement, lawyers must be prepared to make this investment with the very real possibility of an unsuccessful outcome and no fee recovery of any kind. As the Ninth Circuit has recognized, attorneys whose compensation depends on their winning the case must make up in compensation in the cases they win for the lack of compensation in the cases they lose. Vizcaino, 0 F.d at 0. Here, all that is being requested in terms of the so-called make up factor is a perfectly normal percentage fee. The demands and risks of this type of litigation can and do often overwhelm the resources and deter participation of many traditional claimants firms. For these reasons, the Ninth Circuit recognizes a need to reward Plaintiff s Counsel who accept a case on a contingency basis, because of the risk of non-payment: It is an established practice in the private legal market to reward attorneys for taking the risk of non-payment by paying them a premium over their normal hourly rates for winning contingency cases. See Richard Posner, Economic Analysis of Law., at - (d ed. ). Contingent fees that may far exceed the market value of the services if rendered on a non-contingent basis are accepted in the legal profession as a legitimate way of assuring competent representation for plaintiffs who could not afford to pay on an hourly basis regardless whether they win or lose. In re Washington Pub. Power Supply, F.d,, 00-0 ( th Cir. ) Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW

25 Case :-cv-0-gw-vbk Document Filed 0/0/ Page of Page ID #:0 0 0 ( in the common fund context, attorneys whose compensation depends on their winning the case, must make up in compensation in the cases they win for the lack of compensation in the cases they lose. ). Thus, it is axiomatic that lawyers accepting contingent fee cases should be compensated in amounts greater than those earned by lawyers who bill and receive payment by the hour, as this fact reflects the risks undertaken in a contingent practice. Apart from these risks, Class Counsel assumed considerable additional risks in this action. While Class Counsel believes that Plaintiffs claims were well suited for certification, Class Counsel is cognizant of the significant hurdles they would have had to overcome in order to obtain and maintain class status under Rule. In particular, as noted, Plaintiffs took on a nationwide company s Call-In Shift scheduling practices without any supporting precedent. As the Court s file clearly demonstrates, Defendant fought hard through several rounds of motions to dismiss, as well as in the Court of Appeal, to defeat Plaintiffs novel arguments of first impression. Moreover, Defendant undoubtedly would have fought class certification which is always difficult to obtain. These important factors weigh heavily in favor of the fee percentage requested. In re Heritage Bond Litig.at *0 ( Courts have recognized that the novelty, difficulty, and complexity of the issues involved are significant factors in determining a fee award. ) Furthermore, it is anticipated that numerous class member depositions would have occurred. While Class Counsel was certainly prepared to take on these significant costs if necessary, as it regularly does in all of its cases, there can be no doubt that the prospects of such costs presented significant risks given that Class Counsel would lose the entire case investment of hours and costs absent a victory. Thus, the risks of this case were substantial and the hurdles significant. Few cases are sure things and this case was certainly no different, as this Court s ruling on the motion to dismiss the FAC indicated. Defendant is represented by an excellent firm, which did and would have continued to aggressively defend its client had settlement not been reached. In fact, no offer was extended by Defendant until the mediation. Had Awards, in Conjunction with Final Approval of Class Settlement - - Case No. :-CV- 0-GW