Case3:09-cv TEH Document121 Filed05/24/13 Page1 of 20

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1 Case:0-cv-0-TEH Document Filed0// Page of 0 0 PETER M. HART (State Bar No. ) hartpeter@msn.com TRAVIS HODGKINS (State Bar No. 0) thodgkins.loph@gmail.com LAW OFFICES OF PETER M. HART Wilshire Blvd, Suite 0 Los Angeles, California 00 Telephone: (0) - Facsimile: (0) - Class Counsel (Additional Class Counsel listed on following page) GARY MINOR and BANIPAL SHABAZ, as individuals and on behalf of all others similarly situated, vs. Plaintiffs, FEDEX OFFICE AND PRINT SERVICES, INC., a corporation, Defendant. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA CASE NO. C 0-0 TEH PLAINTIFF S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT DATE: July. 0 TIME: 0:00 a.m. CTRM.: 0

2 Case:0-cv-0-TEH Document Filed0// Page of ADDITIONAL CLASS COUNSEL: ERIC HONIG (State Bar No. 0) LAW OFFICE OF ERIC HONIG P.O. Box 0 Marina del Rey, California 0 Telephone: (0) -0 Facsimile: (0) - erichonig@aol.com KENNETH H. YOON (State Bar No. ) kyoon@yoonlaw.com STEPHANIE E. YASUDA (State Bar No. 0) syasuda@yoon-law.com LAW OFFICES OF KENNETH H. YOON One Wilshire Blvd., Suite 00 Los Angeles, California 00 Telephone: () -0 Facsimile: () - LEVIK YARIAN (State Bar No. ) lyarian@ypllp.com ALLEN PATATANYAN (State Bar No. 0) apatatanyan@ypllp.com YARIAN & PATATANYAN, LLP W. Glenoaks Boulevard Glendale, California 0 Telephone: () -0 Facsimile: () - MICHAEL GOULD (State Bar No. ) michael@wageandhourlaw.com AARIN A. ZEIF (State Bar No. 0) aarin@wageandhourlaw.com GOULD & ASSOCIATES East th Street, Suite 0 Tustin, California 0 Telephone: () -0 Facsimile: () -000 Class Counsel ii PLAINTIFF S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

3 Case:0-cv-0-TEH Document Filed0// Page of TO THE COURT AND ALL PARTIES AND THEIR RESPECTIVE COUNSELS OF RECORD: PLEASE TAKE NOTICE that on July, 0, at 0:00 a.m., or as soon thereafter as the matter may be heard, before the Honorable Thelton E. Henderson in Courtroom of the United States District Court for the Northern District of California, located at 0 Golden Gate Avenue, San Francisco, California 0, Plaintiffs Gary Minor, Banipal Shabaz, Narek Eloyan, Shehan Bederian, and Michael Macias ( Plaintiffs or Class Representatives ), will and hereby do respectfully move the court for final approval of the proposed class action settlement. Specifically, Plaintiffs respectfully request that the Court () grant final approval of this class action and class action settlement; () fully and finally approve and direct distribution to the Class of the settlement sum pursuant to the terms of the Joint Stipulation of Settlement and Release (hereafter Settlement or Settlement Agreement ) in this matter; and () dismiss this action with prejudice. This Motion is based upon this Notice of Motion and Motion for Final Approval of Class Action Settlement; the attached Memorandum of Points and Authorities in support thereof; and the concurrently filed Declaration of Peter M. Hart, Supplemental Declaration of Abel E. Morales, and the [Proposed] Order Granting Motion for Final Approval of Class Action Settlement. This Motion is also based on the pleading and papers previously filed with the Court, which include the Settlement Agreement, any oral argument of counsel, the complete files and records in the above captioned matter, and such additional matters as the Court may consider. DATED: May, 0 LAW OFFICES OF PETER M. HART /s/ Peter M. Hart By: Peter M. Hart Class Counsel and Attorneys for Plaintiffs iii PLAINTIFF S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

4 Case:0-cv-0-TEH Document Filed0// Page of Table of Contents I. INTRODUCTION AND SUMMARY OF AGREEMENT... II. INFORMATION REQUESTED BY THE COURT... A. FRCP (E)() STATEMENT REGARDING IDENTITY OF ALL AGREEMENTS... B. RESULTS OF CLAIM PROCESS AND BASIS FOR DAMAGES ANALYSES... C. ATTORNEYS FEE LODESTAR... D. CLASS REPRESENTATIVES DECLARATIONS... III. FACTUAL BACKGROUND... A. HISTORY OF THE CASE... B. PROCEEDINGS, DISCOVERY, AND MEDIATION... C. SUMMARY SETTLEMENT TERMS... IV. PRELIMINARY APPROVAL OF THE SETTLEMENT AND NOTICE... A. MOTION FOR PRELIMINARY APPROVAL... B. NOTICE TO THE CLASS... V. FINAL APPROVAL OF THE SETTLEMENT IS APPROPRIATE... A. THE PARTIES HAVE GIVEN THE BEST PRACTICABLE NOTICE OF THE SETTLEMENT... B. THE SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE... C. THE SETTLEMENT SHOULD BE PRESUMED FAIR... 0 D. ALL OF THE RELEVANT CRITERIA SUPPORT FINAL APPROVAL OF THE SETTLEMENT.... The Strength of Plaintiffs Case Supports Final Approval..... The Risk, Complexity, Expense and Likely Duration of Further Litigation Support Final Approval..... The Amount of the Settlement Supports Final Approval.... VI. CONCLUSION... iv PLAINTIFF S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

5 Case:0-cv-0-TEH Document Filed0// Page of Federal Cases Ackerman v. Kassar, F.d (th Cir. )... Amchem Prods. v. Windsor, U.S. ()... Boyd v. Bechtel Corp., F. Supp. 0 (N.D. Cal. )... Chemical Bank v. Seattle, F.d (th Cir. )... Church v. Consolidated Freightways, Inc., U.S. Dist. LEXIS (N.D. Cal. )... Eisen v. Carlisle & Jacquelin, U.S. ()... Ellis v. Naval Air Rework Facility, F.R.D. (N.D. Cal. 0)... 0 Hanlon v. Chrysler Corp., 0 F.d 0 (th Cir. )... In re General Motors Corp., F.d (d Cir. )... In re Wash. Pub. Power Supply Sys. Sec. Litig., 0 F. Supp. (D. Ariz. )... Linney v. Cellular Alaska P ship, F.d (th Cir. )... Mullane v. Cent. Hanover Bank & Trust Co., U.S. 0 (0)... Nat l Rural Telecomms. Coop. v. Direct-TV, Inc., F.R.D. (C.D. Cal. 00)... Officers for Justice v. Civil Serv. Comm n of San Francisco, F.d (th Cir. )..., Phillips Petroleum Co. v. Shutts, U.S. ()... Van Bronkhorst v. Safeco Corp., F.d (th Cir. )... State Cases -Eleven Owners for Fair Franchising v. Southland Corp., Cal. App. th (000)... 0 Dunk v. Ford Motor Co., Cal. App. th ()... 0 v PLAINTIFF S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

6 Case:0-cv-0-TEH Document Filed0// Page of MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND SUMMARY OF AGREEMENT Per this Court s Order Granting Preliminary Approval Of Class Action Settlement (Order filed February, 0, Docket Entry ( DE ) 0) and amended order filed March, 0 (DE ), Plaintiffs Gary Minor, Banipal Shabaz, Narek Eloyan, Shehan Bederian, and Michael Macias ( Plaintiffs or Class Representatives ), and Defendant Fedex Office And Print Services, Inc. ( Defendant ) (collectively, the Parties ) submit the following points and authorities in support of their request that his Court finally approve the class action settlement. The Claims Administrator has performed the tasks required by the Court s Preliminary Approval Order and can report the following preliminary results:. Of the, class members, there are, valid claims (i.e.,.0%);. The, claims represent $,,. (i.e.,.%) of the net settlement;. There are no objections; and. There are opt-outs (less than %). This highly positive reaction of the class is not unexpected given the per person net dollar amounts achieved as set forth in the Joint Stipulation of Settlement and Release ( Settlement or Settlement Agreement, DE -, Ex. A) and the structure of the settlement negotiated by Class Counsels and Class Representatives. The positive reaction is likely result of the dollar result achieved. In total,, class members (.0% of the class) are receiving an estimated net payment of $,,., representing.% of the net settlement amount, which far exceeds the % floor. The highest individual net payment is an estimated payment of $,0., and the average settlement payment to the claiming members is $.0. (Supplemental Declaration of Abel E. Morales ( Supp. Morales Decl. ) -.) These net recovery amounts speak strongly and confirm the results from the Court s notice procedure. These figures are as of May, 0 the date of filing. However, because the last day to mail claims was May, 0, the claim numbers are expected to increase as additional last minute claims are received by the Claims Administrator in the mail. Plaintiffs will provide updated numbers in a supplemental filing after the last deadline has passed (i.e., after June 0, 0).

7 Case:0-cv-0-TEH Document Filed0// Page of 0 Further, there have been no objections to the litigation costs requested, attorneys fees, Class Representative Service Payments, or settlement administration costs. (Declaration of Peter M. Hart ( Hart Decl. ).) Accordingly, the Parties request that the Court grant final approval of the proposed Settlement and grant approval of the attorneys fees, costs, Class Representative s Service Payment and costs of settlement administration as set forth in Class Counsels motion regarding these matters filed with this Court on May, 0. (DE.) II. INFORMATION REQUESTED BY THE COURT In the Court s Order Granting Preliminary Approval Of Class Action Settlement (Order 0 0 filed February, 0 (DE 0) the Court asked counsels for Plaintiffs to address certain issues raised by the Court and to provide further information. A. FRCP (e)() Statement Regarding Identity Of All Agreements Class Counsels have identified all agreements made in connection with the class action settlement approval. The two documents are the Settlement Agreement and the Memorandum of Understanding ( MOU ). The MOU was previously filed with the Court under seal, per its November, 0 Order. (See DE 00 and DE 0.) The Settlement Agreement incorporates all the terms of the MOU. There are no agreements for any compensation beyond as expressed in the settlement agreement. There are no agreements between Class Counsels and any class member (including class representative), or between Class Counsels and Defendant, or between any class representative and Defendant that are not expressed in the Settlement Agreement. B. Results of Claim Process and Basis for Damages Analyses The number of timely claims submitted by Class Members as of May, 0 is, and these submissions represents.% of the net settlement fund. (See Supp. Morales Decl. -.) In order to provide this Court with the damages analyses provided as part of As a reminder, however, Banipal Shabaz is currently working for Defendant.

8 Case:0-cv-0-TEH Document Filed0// Page of preliminary approval, Plaintiffs relied on the following information and documentation, which was provided both in discovery and as part of mediation:. Written personnel policies relating to the claims;. Deposition testimony of Defendant and plaintiffs;. Time and payroll data (including paid meal premiums and edit history) for the entire putative class, from which Class Counsels extrapolated to bring the analysis to the anticipated close of the class period;. Data analysis by Plaintiffs retained expert consultant, Dr. Martin Shapiro. The dollar Settlement value of $,, is fair and reasonable and is an excellent recovery for the class. The exposure numbers set out in the Preliminary Approval Motion were Plaintiffs counsels high end estimate and Defendant would argue that the exposure number could be as low as $0.00 owed. Given the class size and the rates of pay, the $,,000 is a reasonable and fair settlement based on the high-end exposure numbers (assuming full provable liability at trial) used to negotiate this settlement and further suggests that the settlement is fair, reasonable, and adequate. C. Attorneys Fee Lodestar Counsels for Plaintiffs in their Notice of Motion and Motion for Award of Class Representatives Enhancement Payments, Attorneys Fees and Litigation Costs, and Settlement Administration Costs provided the Court with their lodestar, which is $,0,0.00. (See DE, p. -.) Counsels for Plaintiffs also provided declarations from the five different law firms involved in this action describing their total hours, their billing rates, and the work they did, and estimates of the work that still remained to be done. (See DE - to -.) Class counsels also separately described the basis for their seeking the benchmark % fee award and the authority from the Ninth Circuit for seeking such. (Id.) Counsels for Plaintiffs also noted that as of the date of the filing of this motion, there are no objections to the fees requested by counsels for Plaintiffs. Plaintiffs counsels, accordingly, believe based on the benchmark %, the lodestar of the five different law firms who litigated this case over a more than year period of time, the complexity of this case, which was Defendant believed complex enough to start the process for MDL litigation, the number of novel wage and hour issues, likelihood of appeals on a variety of issues, that

9 Case:0-cv-0-TEH Document Filed0// Page of 0 0 the fee request is proper. D. Class Representatives Declarations Counsels for Plaintiffs in the Notice of Motion and Motion for Award of Class Representatives Enhancement Payments, Attorneys Fees and Litigation Costs, and Settlement Administration Costs provided the Court with more information and case law regarding the Class Representative Enhancement payments sought. (See DE, p. -.) Counsels for Plaintiffs also note that as of the date of the filing of this motion, there are no objections to the Enhancements requested by counsels for Plaintiffs. Plaintiffs Bederian, Eloyan, and Macias as of this date have also submitted declarations to this Court addressing as they are best able the concerns and issues raised by the Court regarding the Class Representative Enhancements. (See DE, and 0.) III. FACTUAL BACKGROUND The factual and procedural background of this case, along with the terms of the 0 Settlement, were set forth in detail in the parties Motion for Preliminary Approval of Class Action Settlement filed September, 0. (See DE.) The Parties provide a brief summary of the key points below. A. History Of The Case The original complaint was filed by Gary Minor and Banipal Shabaz on February, 00. Prior to the filing of the complaint, extensive investigation took place with the original plaintiffs at that time and conference calls with other potential witnesses. (Hart Decl..) In the Original Complaint ( OC ) Plaintiffs alleged various violations of the Labor Code, in particular the failure to provide meal breaks, failure to pay overtime wages, failure to reimburse for all work-related expenses, forfeiture of vacation wages, inaccurate wage statements, and unfair business practices. This matter was removed to the United States District Court on March, 00. (See DE, filed March, 00; see also Hart Decl..) On July, 00, a Motion for Transfer of Actions to the Central District of California pursuant to U.S.C. 0 for Coordinated or Consolidated Pretrial Proceedings was filed. (Hart Decl..) Plaintiffs filed their Second Amended Complaint ( SAC ) on November, 00. The

10 Case:0-cv-0-TEH Document Filed0// Page0 of Second Amended Complaint added Narek Eloyan, Shehan Bederian and Michael Macias as additional representative plaintiffs in this case, as well as their claims for unpaid vacation wages (including but not limited to floating holidays and personal days) and failure to timely pay wages at termination. Plaintiffs Eloyan, Bederian and Macias worked for FedEx Office in Southern California, thereby supporting the allegations that the violations were statewide. (Hart Decl..) Defendant disputes Plaintiffs allegations and contends that their policies were not unlawful. Defendant further contends that any untimely payments were not willful and thus do not support an award of Labor Code Section 0 penalties. B. Proceedings, Discovery, and Mediation The settlement of this matter was achieved after significant investigation was done by both parties, including the depositions of Defendant s Fed. R. Civ. P. 0(b)() witnesses, the depositions of five Plaintiffs, formal responses by each of the Plaintiffs to Defendant s written discovery, formal responses by Defendant to Plaintiffs written discovery, interviews of current and former employees of Defendant, and formal and informal exchanges of information by Defendant regarding the policies necessary for Plaintiffs to fully evaluate this case. (Hart Decl..) Plaintiffs planned to use the information obtained through the depositions and the document production in support of their Motion for Class Certification. Plaintiffs believe that Defendant is liable for the claims alleged and that the policies that were produced and the deposition testimony of Defendant makes this liability clear. However, Plaintiffs also recognize the expense and length of continued proceedings necessary to litigate their disputes through trial and through any possible appeals. Plaintiffs have taken into account the uncertainty and risk of the outcome of further litigation, and the difficulties and delays inherent in such litigation. Plaintiffs have also taken into account the extensive settlement negotiations conducted. (Hart Decl..) Only after the Parties conducted the above significant discovery and two mediation sessions did the Parties reach a settlement agreement. (Hart Decl..) C. Summary Settlement Terms The certified class is defined as All persons employed by Defendant in California in a non-exempt position at any time between February, 00 through August, 0. (DE 0, p.

11 Case:0-cv-0-TEH Document Filed0// Page of 0 :-.) 0 The Settlement provides for a Gross Settlement Amount of $,, with the Net Maximum Amount (after deduction of Court Approved Class Counsels attorneys fees and litigation costs, Settlement Administration Costs, the PAGA Payment, the Enhancement Payments to the Class Representatives and if applicable, the Employer s Share of Payroll Taxes) allocated based on a point system. Each Class Member is awarded one () point for each workweek of active employment worked during the Class Period with an additional ten (0) points awarded to each terminated employee. For purposes of determining the amount of points for each Class Member, the termination date will be based on termination status as of the end of the class period. Each Class Member s points will then be divided by the total number of points for all Class Members and the resulting fraction then multiplied by the Net Settlement Amount. Workweeks are defined as the total length of service as a non-exempt hourly employee in California (measured in days) of Defendant divided by seven. Active employment is defined as any workweek in which a Class Member reported hours worked on behalf of Defendant. The calculation of a Class Member s workweeks and a determination as to whether a Class Member was actively employed in a particular workweek will be construed from Defendant s records. (Hart Decl. 0.) This allocation is fair amongst Class Members because it provides recovery proportionate to the harm suffered. Each person gets an amount depending on when they worked for Defendant and whether they were a terminated employee. (Hart Decl..) 0 IV. PRELIMINARY APPROVAL OF THE SETTLEMENT AND NOTICE A. Motion For Preliminary Approval Based on the time frame set forth in the Order Preliminarily Approving the Class Action Settlement, both objections and opt-outs must be returned postmarked no later than calendar days after the initial mailing of the Notice Packet. (DE 0, (c) and (d).) Based on the timing of the mailing, this date was May, 0. (DE.) The deadline for Class Counsel to file their papers in support of final approval of the settlement is May, 0. (DE.) In addition, the deadline for Class Members to file any opposition to the settlement

12 Case:0-cv-0-TEH Document Filed0// Page of itself, counsels motion for attorney s fees and costs, or Class Representatives applications for Enhancement Payment awards is June 0, 0. (DE.) At this time, there have been no objections filed and five () opt-outs received. (Supp. Morales Decl. and ; Hart Decl. ). Class Counsels will file a supplemental brief updating the Court of the progress of administration after the June 0 deadline, which is the last deadline prior to the hearing date. B. Notice To The Class The Court s Preliminary Approval Order which sets forth the procedures for giving notice to class members and other matters has been fully and properly carried out pursuant to its terms. (Hart Decl..) The Preliminary Approval Order directed Defendant to provide the Claims Administrator with the person s name, last known address, last known telephone number, social security number, and payroll data of each Class Member no later than 0 business days after the entry of the February, 0 Preliminary Approval Order. (See DE 0 at (a).) The Order further directed that the Class Notice, attached as Exhibit A- to the Settlement (see DE -, p. ), be sent to class members by first class mail no later than 0 business days after receipt by the Claims Administrator. (Id. at (b).) The mailing was performed in accordance with this Order. (Supp. Morales Decl..) The Claims Administrator also provided toll-free telephone response service to assist class members with questions about the Notice Packet. (Supp. Morales Decl..) As of the date of this filing, the Claims Administrator has received, Notice Packets returned by the Post Office with undeliverable addresses. (Supp. Morales Decl..) Out of the, Notice Packets returned, the Claims Administrator was able to perform address traces, and had forwarding addresses, and through those measures r ed, Notices. (Supp. Morales Decl..) Of the Notice Packets sent to the, class members with new-found addresses, were ultimately returned by the Post Office as being undeliverable. (Id.) Thus, the reasonable accuracy of the class address list is demonstrated by the fact that out of, class members Notice Packets were not delivered, and the fact that the Administrator r ed, Notice Packets to Class Members with updated addresses. (Supp. Morales Decl. - and.)

13 Case:0-cv-0-TEH Document Filed0// Page of As of the date of this filing, only six () of the, Class Members have requested to opt-out of the Settlement. (Supp. Morales Decl..) As part of its duties, the Claims Administrator is responsible for resolving all disputes. To date, there are fourteen () outstanding disputes. The Claims Administrator is working with these class members to resolve their disputes. (Supp. Morales Decl..) The Claims Administrator and the parties have received no objections to the Settlement in response to the Class Notice as of today s date. (Supp. Morales Decl. ; Hart Decl..) Likewise, as of today s date, neither the Claims Administrator nor the parties have received any notices of intention to be heard at the final approval hearing. (Supp. Morales Decl. ; Hart Decl..) V. FINAL APPROVAL OF THE SETTLEMENT IS APPROPRIATE A. The Parties Have Given The Best Practicable Notice Of The Settlement The provision of notice to class members and the administration of the notice process described above meet the requirements for the best practicable notice necessary to protect the due process rights of class members. See Preliminary Approval Order at. See also Phillips Petroleum Co. v. Shutts, U.S., - () (provision of best notice practicable with description of the litigation and explanation of opt-out rights satisfies due process); Eisen v. Carlisle & Jacquelin, U.S., - () (individual notice must be sent to class members who can be identified through reasonable means); Mullane v. Cent. Hanover Bank & Trust Co., U.S. 0, (0) (best practicable notice is that which is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections ). Therefore, as the Claims Administrator has performed the duties required by this Court, this Court may proceed to determine the fairness and adequacy of the Settlement and order its approval, secure in the knowledge that all absent class members have been given the best notice practicable. B. The Settlement Is Fair, Reasonable, And Adequate The law favors settlement, particularly in class actions and other complex cases where

14 Case:0-cv-0-TEH Document Filed0// Page of substantial resources can be conserved by avoiding the time, cost, and rigors of formal litigation. Van Bronkhorst v. Safeco Corp., F.d, 0 (th Cir. ). It is for this reason that federal courts recognize the utility of settlement classes. Amchem Prods. v. Windsor, U.S., (). On a motion for final approval of a class action settlement under Rule (e), a court s inquiry is whether the settlement is fair, adequate and reasonable. Officers for Justice v. Civil Serv. Comm n of San Francisco, F.d, (th Cir. ), cert. denied sub nom, Byrd v. Civil Serv. Comm n, U.S. (). A settlement is fair, adequate and reasonable and thus merits final approval when the interests of the class are better served by the settlement than by further litigation. Manual for Complex Litigation Fourth (Fed. Judicial Center 00) ( Manual ). et seq. at 0. Although the Court possesses broad discretion in determining that a proposed class action settlement is fair, the Court s role must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned. See Officers of Justice, F.d at. Accordingly, the Court should give due regard to what is otherwise a private consensual agreement between the parties. Id.; see also Church v. Consolidated Freightways, Inc., C-0-0-DLJ, C---DLJ, U.S. Dist. LEXIS (N.D. Cal. May, ); In re Wash. Pub. Power Supply Sys. Sec. Litig., 0 F. Supp. (D. Ariz. ), aff d subnom., Chemical Bank v. Seattle, F.d (th Cir. ); MANUAL. at 0 ( The judicial role in reviewing a proposed settlement is critical, but limited to approving the proposed settlement, disapproving it, or imposing conditions on it. The judge cannot rewrite the agreement. ). A court s approval of a class action settlement will only be reversed for a clear abuse of discretion. See Officers of Justice, F.d at ( reverse only upon a strong showing that the district court s decision was a clear abuse of discretion ); Chemical Bank, F.d at ; Ackerman v. Kassar, F.d (th Cir. ); Linney v. Cellular Alaska P ship, F.d, (th Cir. ). Here, based on their own respective independent investigations and evaluations, the Parties and their respective counsel are of the opinion that settlement for the consideration and on the terms set forth in their Settlement is fair, reasonable, and adequate and is in the best interests of the

15 Case:0-cv-0-TEH Document Filed0// Page of Class and the Defendants in light of all known facts and circumstances and the expenses and risks inherent in litigation. (Hart Decl. ; see also DE - [Hart Decl. ]; DE - [Yoon Decl., ]; DE - [Gould Decl. ]; DE - [Patatanyan Decl. ]; DE - [Yarian Decl. ].) Moreover, the Settlement was reached with the assistance of mediator Dickstein (after a prior unsuccessful mediation), after numerous discussions with Mr. Dickstein and telephonic conferences among counsels for Plaintiffs and counsel for Defendant. (Hart Decl..) Finally, the fairness and reasonableness of the Settlement was substantially briefed in the preliminary approval motion, which the Court ultimately found to be fair and reasonable. (Hart Decl..) Thus, the Settlement falls well within the range of acceptable settlements and merits approval. C. The Settlement Should Be Presumed Fair The Court should begin its analysis with a presumption that the Settlement is fair and should be approved: [A] presumption of fairness exists where: () the settlement is reached through arm s-length bargaining; () investigation and discovery are sufficient to allow counsel and the court to act intelligently; () counsel is experienced in similar litigation; and () the percentage of objectors is small. Dunk v. Ford Motor Co., Cal. App. th, 0 (); accord -Eleven Owners for Fair Franchising v. Southland Corp., Cal. App. th, (000); Ellis v. Naval Air Rework Facility, F.R.D., (N.D. Cal. 0), aff d, F.d (th Cir. ); In re Wash. Pub. Power Supply Sys. Sec. Litig., 0 F. Supp. at. All four factors are present here. Class Counsels litigated this action vigorously and thoroughly and engaged in extensive investigation and analysis. There was significant analysis of the policies and the data and databases of these Defendants. First, the Settlement was reached only after arm s-length and good-faith negotiations with two mediation sessions, as well as continued settlement discussions after the settlement. There are no indicia of collusion. (Hart Decl..) Second, the parties engaged in a significant exchange of relevant data in advance of mediation. Specifically, Defendant provided Plaintiffs with all of the requested information and documents, including documents pertaining to Defendant s policies, practices, procedures, annual 0

16 Case:0-cv-0-TEH Document Filed0// Page of meeting schedules, and reimbursement records. (Hart Decl..) Similarly, Plaintiffs took the depositions of Defendant s 0(b)() witnesses, and Plaintiffs were deposed over multiple days. (Hart Decl..) As a result of these efforts, the parties had sufficient information to evaluate the strengths and weaknesses of the class claims and defenses, whether to pursue litigation or settle, and the appropriate settlement value for the claims at issue. Plaintiffs retained Dr. Martin Shapiro, a well-respected data analysis expert, to review time and payroll data necessary for Plaintiffs Counsels to negotiate this settlement. Among other matters, Dr. Shapiro was retained in In Re Wal-Mart Stores, Inc. Wage and Hour Litig., U.S. District Court, Northern District of California, Case No. 0-0-SBA, by Mr. Hart and other counsels. In Wal-Mart, Dr. Shapiro provided similar services to what he provided here, but in addition, rather than provide these services as an expert consultant, he provided an expert opinion relied upon by the district court in granting certification of a wage and hour class action of over 00,000 class members. That certification decision was subsequently appealed, and the matter settled while on appeal. (Hart Decl. 0.) Third, Class Counsels are experienced in wage-and-hour class-action litigation, acted in good faith, and have represented their clients best interests in reaching the Settlement. (Hart Decl. ; see also DE - [Hart Decl. -]; DE - [Yoon Decl. -]; DE - [Honig Decl. -0; DE - [Patatanyan Decl. -0]; DE - [Gould Decl. -]; DE - [Yarian Decl. -].) Great weight is accorded the recommendation of counsel, who are most closely acquainted with the facts of the underlying litigation. This is because parties represented by competent counsel are better positioned than courts to produce a settlement that fairly reflects each party s expected outcome in the litigation. Thus, the trial judge, absent fraud, collusion, or the like, should be hesitant to substitute its own judgment for that of counsel. Nat l Rural Telecomms. Coop. v. Direct-TV, Inc., F.R.D., (C.D. Cal. 00) (citations omitted); see also In re First Capital Holdings Corp. Fin. Prods. Sec. Litig., MDL Docket No. 0, U.S. Dist. LEXIS, at * (C.D. Cal. June 0, ) (finding belief of counsel that proposed settlement represented most beneficial result for class to be a compelling factor in approving

17 Case:0-cv-0-TEH Document Filed0// Page of 0 settlement). 0 0 In addition to Wal-Mart, where Mr. Hart was appointed as class counsel for a class of over 00,000 persons, Mr. Hart and Mr. Yoon were appointed class counsel in De La Cruz v. Abercrombie & Fitch Co., Superior Court of California, County of Orange, Consolidated Case No , for a class of over 00,000 persons. (Hart Decl..) The De La Cruz matter settled well into pre-trial discovery, just prior to the final completion of discovery for trial. (Id.) Mr. Hart and Mr. Yoon were also appointed class counsels in Abdullah v. US Security Associates, Inc., U.S. District Court, Central District of California, Case No. CV 0- GHK. That certification order is presently on appeal. (Hart Decl..) These are but a few of the matters that Plaintiffs Counsels have been appointed in contested certification matters. (See DE - [Hart Decl. - ]; DE - [Yoon Decl. -]; DE - [Honig Decl. -0]; DE - [Patatanyan Decl. -0]; DE - [Gould Decl. -]; DE - [Yarian Decl. -].) Thus, Plaintiffs Counsels here are experienced in successfully prosecuting class actions on behalf of large wage and hour classes. Counsels are qualified and have been successful in certifying class actions, and have a recorded history of performing the work necessary to prosecute these types of actions. At the same time, when a case should settle, Counsels are able to settle cases to avoid the various risks in continued litigation and for judicial efficiency. This experience by Plaintiffs Counsels supports this Court according weight to Counsels opinion supporting final approval. Fourth and finally, as of this time, not one Class Member has objected to the Settlement Agreement and only five Class Members have requested to opt out of the Settlement. This and each of the other three factors support that this settlement is entitled to a presumption of fairness. D. All Of The Relevant Criteria Support Final Approval Of The Settlement [T]he decision to approve or reject a settlement is committed to the sound discretion of the trial judge because he is exposed to the litigants, and their strategies, positions and proof. Hanlon v. Chrysler Corp., 0 F.d 0, 0 (th Cir. ) (citing Officers for Justice, F.d at ) (affirming district court s decision to approve the settlement in consumer class action case). In deciding whether to grant final approval to a settlement as fair, reasonable, and adequate, courts

18 Case:0-cv-0-TEH Document Filed0// Page of consider several relevant factors: the strength of the plaintiffs case; the risk, expense, complexity and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; and the reaction of the class members to the proposed settlement. See Dunk, Cal. App.th at 0 (citing Officers for Justice, F.d at ). The relative degree of importance to be attached to any particular factor will depend upon and be dictated by the nature of the claims advanced, the types of relief sought, and the unique facts and circumstances presented by each individual case. Officers for Justice, F.d at. All of the relevant criteria support final approval of this class action Settlement.. The Strength of Plaintiffs Case Supports Final Approval. Plaintiffs were convinced their case was strong based on the evidence received through extensive investigation. Plaintiffs also believed that the matter was suitable for certification under Federal Rule of Civil Procedure, and planned to move for certification on that belief.. The Risk, Complexity, Expense and Likely Duration of Further Litigation Support Final Approval. To assess the fairness, adequacy, and reasonableness of a class action settlement, the Court must weigh the immediacy and certainty of substantial settlement proceeds against the risks inherent in continued litigation. See In re General Motors Corp., F.d, 0 (d Cir. ) ( [T]he present value of the damages plaintiffs would likely recover if successful, appropriately discounted for the risk of not prevailing, should be compared with the amount of the proposed settlement. ) (internal quotation marks and citation omitted); Boyd v. Bechtel Corp., F. Supp. 0, - (N.D. Cal. ). This Settlement affords the class prompt and substantial relief, while avoiding significant legal and factual hurdles that otherwise may have prevented the class from obtaining any

19 Case:0-cv-0-TEH Document Filed0// Page of recovery at all. Class Counsels are experienced and realistic, and understand that the resolution of Plaintiffs claims the anticipated filing for class certification, trial and any attendant appeals were inherently uncertain in terms of both outcome and duration. Defendant vigorously contests its liability, and firmly believes that it could prevail against a certification motion for the claims. As a consequence, there remains substantial risk that complex, costly, and protracted litigation would ensue were the parties unable to reach a settlement. Thus, the parties realize that the uncertainties of class certification as well as the merits of the claims make settlement prudent. Consideration of the expense, time, and risk associated with continued prosecution of this matter support final approval of the Settlement.. The Amount of the Settlement Supports Final Approval. The adequacy of any Settlement must be judged as a yielding of absolutes and an abandoning of highest hopes.... Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with litigation.... Officers for Justice, F.d at (citation omitted). Defendant has agreed to fund a Gross Settlement Amount of $,, to settle this lawsuit. However, based on the strong defenses Defendant had to the claims in this action, Plaintiffs faced the very real possibility that if the case proceeded to certification and trial, they might obtain little, if any, recovery for the class at all. As noted earlier, this case settled on the eve of the Brinker decision, which was anticipated to be a watershed decision in California wage and hour law. In light of the uncertainties of protracted litigation, this amount reflects an excellent recovery for the class. Accordingly, the calculated Settlement for each participating Class Member is fair, reasonable, and adequate given the inherent risks and costs of litigation. Over 0% of the $,, Net Settlement Amount will be paid out of the Net Settlement Amount based on claims already received by the Claims Administrator as of the date of this filing, and this amount will be paid out to Class Members. Settlement.0.. Furthermore, the Settlement fund will be paid out entirely in cash (as opposed to a voucher, coupon, etc.). The Settlement amount paid to each Class Member is based upon the tenure of their employment and

20 Case:0-cv-0-TEH Document Filed0// Page0 of 0 0 whether they were terminated, and is provided in exchange for a specific release. (Hart Decl. 0; Supp. Morales Decl..) These figures equate to an outstanding recovery for the Class, and this is fair, as it directly allocates greater recovery to individual Class Members who have suffered greater harm i.e., who worked longer for Defendant and who were terminated. Furthermore, Class Members may choose to exclude themselves and not participate in the settlement. Although the gross recovery will be reduced due to deductions for class administration costs, LWDA payment, attorneys fees, and any service payment, these costs are fairly attributed as they were incurred for the benefit of the Class. The Court should further construe the lack of any objection to this current settlement as an indication that Class Members view the settlement as fair, adequate and reasonable. Based on this positive response, final approval of the current Settlement should be granted. VI. CONCLUSION Based on the foregoing argument and authority, Plaintiffs respectfully submit that the 0 standards for final approval of Settlement have been met, and the terms of the Settlement Agreement are fair, adequate and reasonable. Accordingly, Plaintiffs respectfully request that the Court enter an Order in the form proposed and submitted:. Granting final approval to the proposed Settlement Agreement and limited release in this action;. Approving distribution of the settlement funds to the Class Members pursuant to the terms of the Settlement Agreement; and. Entering final judgment as to all members of the Settlement Class in this action. DATED: May, 0 LAW OFFICES OF PETER M. HART /s/ Peter M. Hart By: Peter M. Hart Class Counsel and Attorneys for Plaintiffs