Case :-cv-0-cas-jc Document - Filed 0/0/ Page of Page ID #: PETER R. DION-KINDEM (SBN ) THE DION-KINDEM LAW FIRM PETER R. DION-KINDEM, P. C. 0 Oxnard Street, Suite 00 Woodland Hills, California Telephone: () -00 Fax: () -0 Email: peter@dion-kindemlaw.com Attorney for Plaintiffs Keith Iyon Wade and Vincent Espinoza [Additional Plaintiffs counsel listed on following page] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 0 Keith Iyon Wade, Vincent Espinoza, and Paul Gammel, on behalf of themselves and all others similarly situated, Plaintiffs, vs. Defender Security Company, an Indiana Corporation, and Does through 0, Defendants. Case No.: :-cv- CAS-JC CLASS ACTION Declaration of David Spivak in Support of Motion for Final Approval of Class Action Settlement Date: October, 0 Time: :00 a.m. Crtrm: Judge: Hon. Christina A. Synder
Case :-cv-0-cas-jc Document - Filed 0/0/ Page of Page ID #: 0 For Plaintiffs Keith Iyon Wade and Vincent Espinoza Lonnie C. Blanchard, III (SBN 0) The Blanchard Law Group, APC East Pico Boulevard Los Angeles, CA 00 Telephone: () - Fax: () 0- Email: lonnieblanchard@gmail.com Daniel Yourist (SBN 00) djy@youristlaw.com YOURIST LAW CORPORATION, APC Santa Monica Boulevard, Suite 0 Los Angeles, California 00 Telephone: () -, Ext. Facsimile:() -0 For Plaintiff Paul Gammel David Spivak (SBN ) david@spivaklaw.com Caroline Tahmassian (SBN 0) caroline@spivaklaw.com THE SPIVAK LAW FIRM Wilshire Blvd, Suite 0 Beverly Hills, CA 0 Tel: () -0 Fax: () - Walter Haines (SBN ) walter@whaines.com UNITED EMPLOYEES LAW GROUP 00 Bolsa Ave, Suite 0 Huntington Beach, CA Telephone: () - Facsimile: () -0
Case :-cv-0-cas-jc Document - Filed 0/0/ Page of Page ID #: 0 I, David Spivak, declare:. I am an attorney duly licensed to practice law in the State of California and the U.S. District Court for the Central District of California and am an attorney of record for Plaintiff Paul Gammel ( Gammel ) in this Action against Defendant Defenders, Inc., formerly known as Defender Security Company ( Defenders or Defendant ). Except as otherwise indicated, I have personal knowledge of all matters set forth herein and, if called as a witness, could and would competently testify thereto under oath. Background. Plaintiffs filed their Motion for Preliminary Approval of Class Action Settlement and supporting evidence on April, 0 (ECF Docket No. ).. The factual and procedural background of this case leading up to this Court s granting of preliminary approval of Joint Stipulation of Class Action Settlement Between Plaintiffs on Behalf of Themselves and All Others Similarly Situated and Defendant ( the Settlement ) is set forth in the Memorandum of Points and Authorities and my declaration in support of Plaintiffs Motion for Preliminary Approval of Class Action Settlement (ECF Docket No. -). This Court granted preliminary approval of the Settlement on May, 0 (ECF Docket No. ). The complete terms of the Settlement are set forth in Exhibit to my declaration in support of Plaintiffs Motion for Preliminary Approval of Class Action Settlement (ECF Docket No. -).. When Plaintiffs moved for preliminary approval of the Settlement, they explained at length in their moving papers how the class meets all the requirements for class certification under Rule for settlement purposes only and why the Settlement is a fair, adequate, and reasonable compromise of disputed claims on behalf of Class Members, and why the requested Class Representative Enhancement Payments are justifiable and reasonable. Since this Court granted preliminary approval of the
Case :-cv-0-cas-jc Document - Filed 0/0/ Page of Page ID #: 0 Settlement on May, 0, no subsequent events have occurred to cast any doubt on the Court s determination.. In litigating this case against Defendant, Plaintiffs and Class Counsel faced serious risks. I previously discussed these risks in Paragraphs through of my declaration in support of Plaintiffs Motion for Preliminary Approval of Class Action Settlement (ECF Docket No. -).. Despite the many risks faced by Class Counsel, and the difficulty in prosecuting this case, we nevertheless achieved an outstanding result for the Settlement Class. Our request for attorneys fees of /% of the MSA is fair and reasonable. Class Counsel are filing a Motion for Attorney s Fees and Reimbursement of Expenses concurrently with this Motion. In fact, this amount is well-earned, supported by controlling case law, and is within the fee range awarded by courts within the Ninth Circuit in similar complex cases. There is no evidence to date that Class Counsel s fee request has anything but the unanimous support of the Class. Indeed, the fee request was set forth in the Notice of Settlement that was sent to Class Members by mail on July, 0. A true and correct copy of the Claims Administrator s report, dated July, 0, is attached to this declaration as Exhibit A. As of July, 0, the Claims Administrator received claims from 0 Class Members (the 0 claims account for approximately.% of the Net Settlement Amount or approximateily $,0. to date), deficient claims from three () Class Members which are missing signatures and/or the last four digits of the Class Members social security number, and an opt-out from one () Class Member. Notably, no proper objections have been received to date.. At least five court days prior to the final approval hearing, I will disclose further briefing on the status of the claims process, including claims, objections and opt outs. Such briefing will include a declaration from the Claims Administrator.
Case :-cv-0-cas-jc Document - Filed 0/0/ Page of Page ID #: 0 Class Representative Enhancement Awards. Gammel s request for a Class Representative Enhancement Payment of $,00.00 is fair and reasonable in view of his efforts in this case, the risks he has undertaken, and the results he has achieved. Gammel has been invaluable to Class Counsel in identifying, developing, and assisting with the investigation of the claims at issue in this case and has devoted substantial time and effort in doing so. He participated in the mediation in this case and played no small part in helping Class Counsel achieve the Settlement. See also Paragraphs through of my declaration in support of Plaintiffs Motion for Preliminary Approval of Class Action Settlement (ECF Docket No. -). Moreover, the value of his award, if approved, is less than a third of a percent of the MSA and is fair compensation to Gammel.. Unlike the absent Class Members, Gammel has agreed to execute a separate general release of all claims, including a waiver of Civil Code against Defendant. This is a significant sacrifice. By agreeing to settle the case in the best interest of the Class, Gammel has given up the right to pursue individual claims for unpaid overtime wages, unpaid minimum wages, unreimbursed business expenses, meal and rest period violations, interest, waiting time penalties, pay stub penalties, and civil penalties that he will release as part of the Settlement.. Gammel spent many hours on work related to this lawsuit. See the Declaration of Paul Gammel in Support of Plaintiffs Motion for Preliminary Approval of Class Action Settlement (ECF Docket No. -). As a class representative, he assumed a fiduciary role to the class. Additionally, as a class representative, Gammel agreed to () consider the interests of the class just as he would consider his own interests and, in some cases, to put the interests of the class before his own; () actively participate in the lawsuit, as necessary, by among other things, answering interrogatories, producing documents to Defendant and giving depositions and trial testimony if requested; () travel to give such testimony; () recognize and accept
Case :-cv-0-cas-jc Document - Filed 0/0/ Page of Page ID #: 0 that any resolution of the lawsuit by dismissal or settlement, is subject to court approval, and must be designed in the best interest of the class as a whole; () follow the progress of the lawsuit and provide all relevant facts to Class Counsel; () champion many other people with similar claims and injuries because of the importance of the case and the necessity that all Class Members benefit from the lawsuit; and () fight for a resolution in which the individual recoveries to each class member maybe relatively small. Gammel agreed to shoulder all of these responsibilities in exchange for a proportionate share of funds made available for distribution to the Class. He had no guarantee of an incentive award.. In taking the actions outlined above, Gammel exposed himself to significant risks. These include the risk that he could have been ordered to pay Defendant s attorneys fees and costs if this action had been unsuccessful under Labor Code. and., California s fee and cost shifting statutes applicable to wage disputes. On many occasions, California courts have ordered wage and hour plaintiffs and would be class representatives to pay outrageous fee and/or cost awards for unsuccessful claims. A few examples are: a. Zalewa v. Tempo Research Corp., No. B, 0 WL (CA nd Dist. March, 0) (court awarded the employer $,,0 in attorney s fees to be paid by employee for employee s unsuccessful suit for unpaid bonuses). See Exhibit to my declaration in support of Plaintiffs Motion for Preliminary Approval of Class Action Settlement (ECF Docket No. - ). b. Cun v. Café Tiramisu LLC, No. A, 0 WL (CA st Dist. Nov. 0, 0) (court ordered the employee to pay $,.0 in attorney s fees and costs to employer for unsuccessful suit for unpaid wages). See Exhibit 0 to my declaration in support of Plaintiffs Motion for Preliminary Approval of Class Action Settlement (ECF Docket No. -). c. Csaszi v. Sharp Healthcare, No. D0, 00 WL (CA th Dist.
Case :-cv-0-cas-jc Document - Filed 0/0/ Page of Page ID #: 0 Feb., 00) (court ordered the employee to pay $0, in attorney s fees and costs to the employer for unsuccessful suit for unpaid wages and overtime). See Exhibit to my declaration in support of Plaintiffs Motion for Preliminary Approval of Class Action Settlement (ECF Docket No. - ). d. Villalobos v. Guertin, No. CIV. S 0 LKK/GGH, 00 WL (U.S.D.C. Eastern Dist. Dec., 00) (court ordered Plaintiff s counsel to pay $,0 in attorney s fees and $,.0 in costs to defense counsel for unpaid wages). See Exhibit to my declaration in support of Plaintiffs Motion for Preliminary Approval of Class Action Settlement (ECF Docket No. -).. Such costs awards are substantially higher than the share of the MSA that Gammel stands to receive as a Settlement Class member. It is unfair in view of the substantial risk of an adverse fee or cost award of several thousand dollars that Gammel receives less a reward for taking such a risk.. Gammel made this case possible for a number of reasons. He challenged his employer on allegedly unlawful practices that led to this Settlement. Gammel provided Class Counsel with detailed descriptions of how Defendant s business operates, and the hours and scheduling of the employees. Gammel assisted his counsel extensively by spending considerable amounts of time working with them to develop and investigate the claims, meeting with his counsel in person and by phone, gathering witness identities and contact information, and connecting them with Class Counsel for interviews, and participating in the mediation session. Attorneys in wage and hour class actions rely heavily on class representatives to develop their claims.. The public policy behind class actions that seek an aggregate recovery of otherwise small amounts of money is equally important and has been recognized by the courts. The policy at the very core of the class action mechanism is to overcome
Case :-cv-0-cas-jc Document - Filed 0/0/ Page of Page ID #:0 0 the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor. Amchem Products, Inc. v. Windsor () U.S. quoting Mace v. Van Ru Credit Corp. () F.d,. Frequently numerous consumers are exposed to the same dubious practice by the same seller so that proof of the prevalence of the practice as to one consumer would provide proof for all. Individual actions by each of the defrauded consumers are often impracticable because the amount of individual recovery would be insufficient to justify bringing a separate action; thus an unscrupulous seller retains the benefits of its wrongful conduct. Vasquez v. Superior Court () Cal.d 00. A company which wrongfully exacts a dollar from each of millions of customers will reap a handsome profit; the class action is often the only effective way to halt and redress such exploitation. Blue Chip Stamps v. Superior Court () Cal.d. A current employee who individually sues his or her employer is at greater risk of retaliation. We have recognized that retaining one's employment while bringing formal legal action against one's employer is not a viable option for many employees. Gentry v. Superior Court (00) Cal.th (abrogated on other grounds by Iskanian v. CLS Transp. Los Angeles, LLC (0) Cal.th ). If would-be class action plaintiffs are not adequately incentivized to assume the risk of a substantial cost award, it is unlikely that they will bring such lawsuits in the first place. The average putative class member in this case would be unlikely to pursue his individual claims against Defendant because such a claim would be too small to justify the cost and the risk. A putative class member will be unlikely to find an attorney who is willing to pursue an individual s claims because the claim are too small to justify the hundreds of hours of legal work necessary to prove each claim. Only the class action vehicle, which
Case :-cv-0-cas-jc Document - Filed 0/0/ Page of Page ID #: 0 allows for the aggregation of hundreds of risky small dollar value claims, makes such claims advantageous for an attorney to pursue on a contingency basis and there can be no class action without a class member assuming the great fiduciary responsibilities of class representative. This Court should allow the Class Representative Enhancement Award requested because to do otherwise would discourage employees (and attorneys) from bringing class actions in the first place. If would-be class action plaintiffs are not adequately incentivized to advance the public policy behind class actions in court in light of the time and risk it will entail, it is unlikely that they will bring class action lawsuits in the first place. Once employers realize that such lawsuits are unlikely, they will have no incentive to comply with the wage and hour laws.. By virtue of this lawsuit, Gammel now has a public record that he sued a former employer over unpaid wages. The stigma of his filing may jeopardize future employment opportunities, especially in the security services sales industry. Common sense dictates that an employer will think twice about hiring someone who sued his former employer. See Exhibits - to my declaration in support of Plaintiffs Motion for Preliminary Approval of Class Action Settlement (ECF Docket No. -). Legal experts have recognized this fact. California even has laws to address this risk: Labor Code 0. prohibits retaliation against employees who speak up about Labor Code violations and Labor Code. prohibits discrimination against employees who bring Labor Code violations to the attention of the Labor Commissioner. Thus, the risk to Gammel s future, especially in the security services sales industry, shows that the enhancement award sought is fair, adequate, and reasonable, and warrants final approval of the Court.. The burden on each Class Member to pay the Class Representative Enhancement Payment to Gammel is extremely modest. There are approximately Class Members. Dividing the $,00 Class Representative Enhancement Payment evenly
Case :-cv-0-cas-jc Document - Filed 0/0/ Page of Page ID #: 0 among the Class Members yields a per Class Member payment of only $. for each of the three Class Reprsentative Enhancement Payments, and a total payment of only $.. For an average Class Member, this is an extremely small price to pay to have someone else prosecute the absent Class Member s claims and bear the absent Class Member s risk of an adverse cost award while the absent Class Member simply waits to receive his share of the winnings.. Moreover, it is not uncommon for a wage and hour Defendant like Defenders to attempt to pick off class representatives by means of statutory offers of judgment (e.g.s. Genesis Healthcare Corp. et al. v. Symczyk (0) S.Ct. and Campbell-Ewald Co. v. Gomez (0) S.Ct. ). Regardless of whether these offers moot the claims of class representatives, they are a powerful incentive defendant-employers can dangle before class representatives to entice them into dropping the class claims for an individual settlement affording maximum possible relief to the representative (or more in some instances). If would-be class representatives learn that the Court granted Gammel an enhancement award that is less than he could command with a pre-certification, individual settlement, they will have good reason to file class claims only to line their own pockets rather than rejecting individual settlement offers to continue the fight on behalf of the class. The Claims Administration Costs Are Reasonable. CPT Group, the Parties chosen Claims Administrator, currently estimates that the Claims Administration Costs are approximately $,00. Plaintiffs received bids for Claims Administration Costs from several competitors: A. CPT Group, Inc. = $,00.00; B. Simpluris, Inc. = $,00.00; C. Phoenix Settlement Administrators = $,.00; and D. KCC/Gilardi & Co. LLC = $,0.. Thus, since () the Parties received several bids for higher amounts from reputable
Case :-cv-0-cas-jc Document - Filed 0/0/ Page of Page ID #: third party administrators (including a reduced bid from CPT Group) and () subsequently agreed to the lowest amount, the Claims Administration Costs are reasonable. Class Counsel seek final approval of the reimbursement of $,00.00 in Claims Administration Costs on behalf of CPT Group, Inc. I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. Executed on August, 0 at Beverly Hills, California. /s/ David Spivak David Spivak 0
Case :-cv-0-cas-jc Document - Filed 0/0/ Page of Page ID #: EXHIBIT A
Case :-cv-0-cas-jc Document - Filed 0/0/ Page of Page ID #: Wade et al v Defenders Inc Case No: :-cv- CAS-JC As of: //0 Class Period: Jan, 0 - May, 0 Class Size: Date Notices Mailed: Jul, 0 Claim/Exclusion Deadline: Sep, 0 Objection Deadline: Sep, 0 Final Approval Hearing: Oct, 0 Description Count Items in Mailing List Notices Returned Notices Traced Mail Notices Remailed* Forwarded Notices Notices Returned nd Time Undelivered Notices * Includes Forwarded Notices Responses Received Opt Outs Objections Claims Disputes Deficient Late Claims Invalid Valid Claims** 0 ** Includes Deficient, Disputed, and Late Claims No. of Class Members in Mailing List No. of Valid Claimants 0 Class % Valid Claims. % Total Amount Claimed by Valid Claimants $,0. % NSA Claimed. %
Case :-cv-0-cas-jc Document - Filed 0/0/ Page of Page ID Distribution List: David Spivak; Caroline Tahmassian; Breck Oyama; Walter #: Haines; Peter R. Dion-Kindem; Lonnie C. Blanchard, III; Daniel Yourist Mia Farber; Shagha Balali CPT Class Action Representatives: Julie Green; Jackie Hitomi; Abel Morales; Tim Cunningham; Tarus Dancy; Taylor Mitzner; Kelsey Short; Ani Shirinian Please note these numbers and statistics are for your reference only and will change throughout the administration process. Final numbers and statistics shall be obtained from Case Manager once response deadlines have passed and all responses have been properly validated.