HEATHER DAVIS, SBN 239372 1 AMIR NAYEBDADASH, SBN 232204 CODY PAYNE, SBN 282342 2 KIM N. NGUYEN, SBN 293906 PRISCILLA GAMINO, SBN 315404 3 PROTECTION LAW GROUP, LLP 136 Main Street, Suite A 4 El Segundo, CA 90245 5 Telephone: (424) 290 – 3095 Facsimile: (866) 264 – 7880 6 Attorneys for Plaintiff 7 FERNANDO GONZALEZ
8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF LOS ANGELES, SPRING STREET COURTHOUSE
11 FERNANDO GONZALEZ, individually, and on Case No.: BC685765 behalf of others similarly situated; 12 Assigned for all purposes: Honorable Carolyn B. Kuhl 13 Plaintiff, Dept. SS 12 14 vs. CLASS ACTION 15 QUEENS LAND BUILDER, INC; KINGS LAND DEVELOPMENT, INC.; NING DECLARATION OF HEATHER DAVIS IN 16 SUPPORT OF PLAINTIFF’S UNOPPOSED WANG, an individual; HONG CHEN, an MOTION FOR PRELIMINARY individual; and DOES 1 through 50, 17 APPROVAL inclusive, 18 Hearing Date: TBD Defendants. Hearing time: TBD 19 Dept. SS 12
20 Complaint Filed: December 5, 2017 21 Trial Date: None Set 22 23 24
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DECLARATION OF HEATHER DAVIS IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY
APPROVAL - 1
1 DECLARATION OF HEATHER M. DAVIS, ESQ.
2 I, Heather M. Davis, declare as follows:
3 1. I am an attorney duly licensed to practice law before all courts of the State of
4 California and all United States District Courts in the State of California. I am a partner of the
5 Protection Law Group, LLP, attorneys of record for named Plaintiff Fernando Gonzalez. I have
6 personal knowledge of the facts stated herein and if called as a witness I could and would
7 competently testify thereto.
8 CLASS COUNSEL’S BACKGROUND AND EXPERIENCE
9 2. I am a duly licensed attorney and have been a member of the Colorado State Bar
10 since 1998, the California State Bar since 2005 and the Arizona State Bar since 2007. I graduated
11 from the University of Denver School of Law in 1998 and I am licensed to practice before all
12 courts of the State of California and Colorado as well as the State of Arizona and District Courts
13 throughout the country.
14 3. Prior to opening my law firm, I developed particular experience in the area of wage
15 and hour litigation. For instance, between 2007 and 2013, I joined the law firm of Littler
16 Mendelson, P.C., the largest labor and employment law firm in the United States.
17 4. During my employment with Littler Mendelson, P.C., I continued my practice of
18 employment law and was responsible for and defended dozens of complex class actions involving
19 some of the largest representative and class actions brought under the California Labor Code,
20 including meal and rest break violations, overtime, minimum wage claims, off the clock work and
21 other related wage claims. My practice included the management of dozens of class actions. My
22 management of these cases included taking and defending hundreds of depositions and interviews
23 of hundreds of putative class members as well as extensive state, federal and appellate briefing on
24 hundreds of wage and hour issues involving class actions.
25 5. During my employment at Littler Mendelson, I played a significant role in the class
26 actions for which I was responsible. In particular, I was often in charge of the leading the strategy
27 of the cases and drafting all of the briefs. I received a wide-array of wage and hour class action
28 experience performing the following types of tasks: drafting demurrers; motions to strike and/or
DECLARATION OF HEATHER DAVIS IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY
APPROVAL - 2
1 dismiss; removing actions from state court to federal court; drafting and responding to written
2 discovery; drafting and opposing discovery related motions; arguing discovery related motions;
3 drafting motions to consolidate related matters; interviewing putative class members and obtaining
4 declarations in connection with class certification; drafting oppositions to motions for class
5 certification; drafting motions for decertification following class certification; conducting
6 exposure analyses to assess the strengths and weaknesses of asserted claims, the likelihood of
7 prevailing at class certification and potential damages resulting from such claims; drafting
8 mediation briefs; serving as the primary contact to in-house counsel; deposing Plaintiff and
9 putative class members; deposing retained expert witnesses; and defending the depositions of
10 corporate witnesses. In short, I played an integral role in all aspects of litigation from the inception
11 of a matter through and beyond class certification.
12 6. During my practice in other jurisdictions and continuing today, I have been
13 primarily devoted to working in employment law and on complex class action and representative
14 litigation and multi-plaintiff work.
15 7. Protection Law Group LLP is a law firm specifically devoted to the representation
16 of employees against employers in California involving claims relating to violations of the
17 California Labor Code, including claims for failure to pay all wages owed, failure to pay overtime
18 premiums, failure to pay meal and rest premiums and failure to provide accurate wage records.
19 The practice of employment law is a very specific, narrow field which requires diligence in an
20 ever-evolving field of substantive and procedural law.
21 8. Although not exhaustive, below is a representative list of several of the wage and
22 hour class actions that I performed substantial work on while I was an attorney with Littler
23 Mendelson, including, but not limited to: Villacres v. ABM Industries, Inc., 189 Cal.App.4th 562
24 (2010); Brizuela v. Copart, Inc., CIVRS11101592, (San Bernardino Superior Court class action
25 settlement); Augustus v. ABM Industries, Inc., BC336416, 2 Cal. 5th 257 (2016); Tagaki v. United
26 Airlines, 2:11-CV9191 (Central District class action settlement), Babasa v. Comerica, Inc., 3:11-
27 CV00595, Leyva v. Medline Industries, Inc. 5:11-cv-00164 (Central District), Blue v. Coldwell
28 Banker Residential Brokerage Co., BC417335, (Los Angeles Superior Court, class action
DECLARATION OF HEATHER DAVIS IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY
APPROVAL - 3
1 settlement), and Acosta v. Texwood Industries, Inc., 2:07-cv-03237-DDP-PLA (Central District
2 class action settlement).
3 9. Since opening my firm, I have served as lead counsel or co-class counsel in several
4 wage and hour class and/or representative actions seeking wages and penalties owed on behalf of
5 employees for which final approval of the settlement or class certification has been granted,
6 including, but not limited to the following:
7 • Morera v. Continental Assets Mgmt., BC502003, (Los Angeles Superior Court wage and 8 hour Class action appointing Protection Law Group, LLP as class counsel in settlement); 9 • Fong et al. v. Regis Corporation, 3:13-cv-13-04497 VC, (United States District Court, 10 Northern District of California, appointing Protection Law Group, LLP as class counsel in 11 settlement); 12 • Espinoza v. Financial Partners Credit Union, BC502165 (Los Angeles Superior Court 13 wage and hour Class action appointing Protection Law Group, LLP as class counsel in 14 settlement); 15 • Kesheshian, et al v. S. Cal. Logistics, BC557981 (Los Angeles Superior Court wage and
16 hour class action appointing Protection Law Group, LLP as class counsel in settlement);
17 • Sampson v. 24 HR Homecare LLC, BC586019 (Los Angeles County Superior Court wage
18 and hour class action appointing Protection Law Group, LLP as class counsel in settlement); 19 • Glenn v. Decron Properties Corp., BCC 578035 (Los Angeles Superior Court wage and 20 hour class action appointing Protection Law Group, LLP as class counsel in settlement); 21 • Torres v. Auto Rescue et al., RIC 1509900 (Riverside County Superior Court wage and 22 hour class action appointing Protection Law Group, LLP as class counsel in settlement); 23 • Kashanian v. Plus Labs, Inc., (Santa Clara County Superior Court wage and hour class 24 action appointing Protection Law Group, LLP as class counsel in settlement); 25 • Cadena v. Tetra Property Management, 257425 (Tulare County Superior Court wage and 26 hour class action appointing Protection Law Group, LLP as class counsel in settlement). 27 • Drayton v. Hollywood Park Casino, BC593935 (Los Angeles Superior Court wage and 28 hour class action appointing Protection Law Group, LLP as class counsel in settlement);
DECLARATION OF HEATHER DAVIS IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY
APPROVAL - 4
• Holzer v. Wedbush Securities, Inc., BC 550462 (Los Angeles Superior Court wage and 1 hour class action certifying class and appointing Protection Law Group, LLP as class 2 counsel); 3 • Khan v. FPI Management, Inc., JCCP4819 (Los Angeles Superior Court wage and hour 4 class action appointing Protection Law Group, LLP as class counsel in settlement); 5 • Byrd v. Masonite Corp., 5:16-cv-00035-JGBKK (United States District Court, Central 6 District of California appointing Protection Law Group, LLP as class counsel in 7 settlement); 8 • Utterbach v. Daylight Transport, LLC BC600994 (Los Angeles Superior Court wage and 9 hour class action appointing Protection Law Group, LLP as class counsel in settlement) 10 • Hadrick v. Woodmont Real Estate Serv., et al., CIV 530405 (San Mateo County Superior 11 Court wage and hour class action appointing Protection Law Group, LLP as class counsel 12 in settlement); and 13 • Eiden v. Olive & June, BC654685 (Los Angeles Superior Court wage and hour class action 14 appointing Protection Law Group, LLP as class counsel in settlement) 15 • Lemus v. Slater Inc., CIVDS1703633 (San Bernardino Superior Court wage and hour 16 class action appointing Protection Law Group, LLP as class counsel in settlement); 17 • Deluna v. Amerit Fleet Solutions et al., CIVDS1721564 (San Bernardino Superior Court 18 wage and hour class action appointing Protection Law Group, LLP as class counsel in
19 settlement);
20 • Stone v. Universal Protection Services, AAA Case No. 01-15-0002-7497 (American
21 Arbitration Association wage and hour class action appointing Protection Law Group,
22 LLP as class counsel in settlement); and • Commick v. Prometheus Real Estate Group, Inc., CIV531264 (San Mateo Superior Court 23 wage and hour class action appointing Protection Law Group, LLP as class counsel in 24 settlement). 25 10. I am fully familiar with the legal and factual issues in this case, and have specific 26 experience litigating complex wage and hour actions as class actions, including employment cases 27 as set forth above. 28
DECLARATION OF HEATHER DAVIS IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY
APPROVAL - 5
1 11. The Settlement presented here only resulted after having engaged in extensive
2 informal discovery and investigation and is the product of hard fought litigation and extensive
3 arms’ length negotiations. In my opinion as an experienced class counsel, the Settlement is fair,
4 reasonable, adequate, and in the best interests of the Class.
5 PROCEDURAL HISTORY AND FACTUAL BACKGROUND
6 12. Plaintiff Fernando Gonzalez was employed by Defendants Queens Land Builder,
7 Inc.; Kings Land Development, Inc.; and Ning Wang, an individual (“Defendants”) from
8 approximately January 2014, through February 9, 2017, as a general laborer. Plaintiff’s job duties
9 included operating forklifts and other machinery. His duties also included general construction
10 labor and stocking jobsites with the necessary equipment and supplies.
11 13. Defendants provide construction services in California.
12 14. On December 5, 2017, Plaintiff initiated this matter by filing a class action
13 complaint (“Complaint”) against Defendants. Plaintiff’s Complaint alleges damages based on the
14 following causes of action: (1) Unpaid Overtime; (2) Unpaid Meal Period Premiums; (3) Unpaid
15 Rest Period Premiums; (4) Unpaid Minimum Wages; (5) Final Wages Not Timely Paid; (6) Wages
16 Not Timely Paid During Employment; (7) Failure to Provide Accurate Wage Statements; (8)
17 Failure to Keep Accurate Payroll Records; and (9) Violation of Business and Professions Code,
18 Section 17200, et seq.
19 15. On February 16, 2018, Plaintiff filed a First Amended Complaint including a tenth
20 cause of action for Violation of California Labor Code § 2699 (Private Attorneys General Action).
21 16. Defendants provided thousands of pages of documents including time sheets and
22 pay stubs. Further Defendants produced a 20% sampling of time and payroll data for relevant
23 class period, as well as sample paystubs, their policies, and other relevant documents.
24 17. After a thorough investigation and analysis of the informal discovery provided by
25 Defendants, the parties agreed to attend a mediation with Marc Feder, a neutral and highly
26 respected mediator with extensive experience in complex wage and hour matters.
27 18. The parties attended mediation with Marc Feder on October 25, 2018.
28
DECLARATION OF HEATHER DAVIS IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY
APPROVAL - 6
1 19. Prior to the mediation, the parties engaged in a pre-mediation conference to discuss
2 procedural and substantive matters going into the mediation. Part of that process included the
3 exchange of information in order to have sufficient information to properly evaluate the claims
4 and defenses in the case. At the mediation, Defendants maintained they had substantial defenses
5 to the alleged violations and that they had complied with California wage and hour laws at all
6 times.
7 20. After a full day of mediation, during which the parties exchanged detailed
8 mediation briefs, engaged extensively with the mediator, and debated their different views and
9 analyses regarding the scope of the alleged violations and the viability of Defendants’ potential
10 defenses, the parties agreed to settle the claims at issue for $350,000.
11 21. At the mediation, the parties executed a memorandum of understanding and
12 thereafter drafted a long form joint stipulation of settlement and release (Agreement) confirming
13 and expanding upon these terms. Plaintiff now moves for preliminary approval of this proposed
14 settlement.
15 SUMMARY OF THE TERMS OF SETTLEMENT
16 22. Plaintiff Fernando Gonzalez (“Plaintiff”) seeks preliminary approval of the
17 proposed class action settlement. Attached hereto as Exhibit 1 is a true and correct copy of the
18 parties’ Joint Stipulation of Settlement and Release (hereinafter “Settlement Agreement” or
19 “Agreement”). A true and correct copy of the proposed Notice of Class Action Settlement is
20 attached to the Agreement as Exhibit A.
21 23. The Settlement Class is defined as: “all hourly, non-exempt employees employed
22 by Defendant in the State of California during the Class Period” through the date of Preliminary
23 Approval, or 120 days from the date of mediation, whichever date is earlier. Agreement.” (Ex. 1,
24 ¶¶7, 33). The Settlement Class contains approximately 174 class members.
25 24. Subject to Court approval, Plaintiff and Defendants Queens Land Builder, Inc.;
26 Kings Land Development, Inc.; and Ning Wang, an individual, (“Defendants”) have agreed to
27 settle the class claims for a Class Settlement Amount of $350,000. (Ex. 1, ¶9).
28 25. The Class Settlement Amount allocations are as follows:
DECLARATION OF HEATHER DAVIS IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY
APPROVAL - 7
1 a. Attorney’s Fees in the amount of thirty-five percent of the Class Settlement
2 Amount, equaling $122,500. (Ex. 1, ¶2).
3 b. Attorneys’ Costs, according to proof, estimated at approximately $8,500.
4 (Ex. 1, ¶2).
5 c. The Claims Administration Costs, to be performed by ILYM Group, Inc.,
6 estimated to be $13,500; (Ex. 1, ¶¶ 3,4).
7 d. The Class Representative Enhancement Payment to Plaintiff Fernando
8 Gonzalez in the amount of $5,000; (Ex. 1, ¶8).
9 e. Payment to the Labor and Workforce Development Agency in the amount
10 of $3,750 for penalties pursuant to the Private Attorney General Act (PAGA
11 Payment); (Ex. 1, ¶17).
12 f. Net Settlement Amount of $196,750 (Ex. 1, ¶18).
13 26. The Net Settlement Amount shall be distributed to the Settlement Class Members
14 on a pro-rata basis based on the total Individual Amount Earned during the Class Period. (Ex. 1,
15 ¶44. There are an estimated 174 Class Members included in the settlement. The payment to each
16 Settlement Class Member will vary based on the total Individual Amount Earned, but will provide
17 an average estimated settlement payment of $1,130.75.
18 27. This proposed Settlement resolves all of the Settlement Class Members’ claims
19 against Defendants as to the facts in the complaint and claims that could have been alleged based
20 on such facts. (Ex. 1, ¶28).
21 28. Each Class Member’s settlement allocation will be allocated between wage and
22 nonwage payments, as follows: twenty percent (20%) wages; forty percent (40%) penalties; and
23 forty percent (40%) interest. (See Ex. 1, ¶61.)
24 29. Any checks issued by the Claims Administrator to Participating Class Members
25 will be negotiable for at least one hundred and eighty (180) calendar days. Those funds represented
26 by settlement checks returned as undeliverable and those settlement checks remaining un-cashed
27 for more than one hundred and eighty (180) calendar days after issuance by the Settlement
28 Administrator shall be voided. Within thirty days (30) days after the expiration date of the
DECLARATION OF HEATHER DAVIS IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY
APPROVAL - 8
1 settlement checks, the Settlement Administrator shall provide to Class Counsel and Defendants’
2 Counsel a verification/declaration signed under penalty of perjury that it has mailed the settlement
3 checks to Participating Class Members, and if uncashed, that such amounts have been sent to the
4 Controller of the State of California to be held pursuant to the Unclaimed Property Law, California
5 Civil Code Section 1500, et seq. for the benefit of those Class Members who did not cash their
6 checks until such time as they claim their property in the name of the Settlement Class Member to
7 whom the uncashed Net Settlement Payment check was addressed. (The Parties previously
8 directed the funds to the Department of Industrial Relations Unpaid Wage Fund (Cal. Lab. Code
9 §§ 96.6. and 96.7), but have since agreed to the Controller of the State of California as noted
10 above). (Ex. 1, ¶59)
11 THE SETTLEMENT IS REASONABLE
12 Method of Distribution
13 30. The proposed settlement is based on the total Individual Amount Earned by each
14 class member. This method is commonly used in wage and hour class actions because it relies
15 upon objective evidence of the amount earned during employment, which Class Members can
16 easily review and confirm for themselves. This information is readily available from Defendants’
17 records, and the Settlement Administrator can apply the formula in a fair and transparent manner.
18 31. Additionally, this method of distribution is commonly used in wage and hour class
19 actions because it allows for a distribution that corresponds closely to the alleged damages since
20 employees experience the same working conditions, so their damages are directly related to the
21 amount earned while they were employed.
22 32. The effectiveness of Class Counsel in prosecuting this case has translated into
23 monetary benefits for the Settlement Class in the following respects: (1) the Settlement Class will
24 recover over a reasonably short period of time as opposed to waiting additional years for the same,
25 or possibly, a worse, result; (2) a guaranteed result that compares favorably with other similar class
26 action settlements of this type, (3) significant savings in Class Counsel’s fees and costs which
27 would have only increased significantly had the case progressed through trial, appeals, and
28 continued litigation.
DECLARATION OF HEATHER DAVIS IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY
APPROVAL - 9
1 Discovery and Informed Arms-Length Negotiations
2 33. Settlement was reached only after extensive informal discovery including the
3 review and analysis of a class wide sampling of time and payroll data, review of Defendants’
4 policies, an exchange of written briefs and analysis reflecting the strengths and weaknesses of each
5 parties case and extensive settlement discussions. The parties engaged in a full day of mediation
6 with Marc Feder, a highly-respected mediator with particular experience in wage and hour class
7 actions. The settlement negotiations were at arm’s length and, although conducted in a professional
8 manner, were adversarial. Defendants at all times maintained that they had complied with
9 California wage and hour laws. If this matter had not resolved at mediation, Plaintiff was prepared
10 to vigorously litigate this dispute including through class certification and trial. The proposed
11 Settlement was reached at the end of a process that was neither fraudulent nor collusive. To the
12 contrary, counsel for the Parties advanced their respective positions throughout the settlement
13 negotiations.
14 34. Defendants provided my office with substantial informal discovery prior to and at
15 the mediation. Prior to mediation, Defendants informally produced a 20% sampling of time and
16 payroll records, Plaintiff’s personnel file, Defendants’ policies, and other relevant documents and
17 information regarding the size and scope of the class. My office went through thousands of pages
18 of discovery and conducted a class-wide assessment and analysis of Defendants’ potential
19 damages based on the documents and information provided. The parties extensively briefed these
20 issues and provided their analyses to each other and the mediator for his consideration. This
21 investigation allowed Plaintiff’s counsel to act intelligently in negotiating the settlement.
22 Estimate of Potential Value
23 35. My office analyzed all of the data and estimated the maximum potential exposure
24 at approximately $2,694,202, assuming the Litigation was successful at trial on the principal
25 claims at issue, and then reduced this exposure analysis based on the likelihood of obtaining class
26 certification, prevailing at trial, and other attendant risks. This amount is based on the total
27 estimated maximum liability for all the workweeks at issue. Here, there are approximately 5,864
28 workweeks at issue. Based on the average rate of pay provided by Defendants, I estimated the total
DECLARATION OF HEATHER DAVIS IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY
APPROVAL - 10
1 meal break damages owed at $514,390 for all class members during the class period. Rest breaks
2 were unrecorded, and were thus difficult to gauge. However, based on Plaintiff’s allegations, I
3 estimated at a maximum there would be at least one missed rest period per day or approximately
4 $642,987 in potential damages. Waiting time penalties were assumed for all former employees to
5 an amount to $326,318. For the overtime, the total damages amounted to $514,507 based on the
6 uncompensated work performed at the beginning and end of each shift and during unrecorded
7 interrupted meal breaks. Penalties for inaccurate wage statements amounted to $696,000.
8 However, during the mediation, Defendants raised several issues which impacted the risks
9 attendant to proceeding on a class action basis.
10 Specific Risks Considered 11
12 36. Although the investigation and information discovered supports Plaintiff’s
13 contentions, Defendants raised potential defenses and other circumstances that impacted the risk
14 of proceeding on a class-wide basis, which factored into the decision to enter this settlement.
15 37. Defendants proffered defenses to both certification and the merits of Plaintiff’s
16 claims. Defendants contended that Plaintiff’s claims are not suitable for class certification because
17 individual issues and affirmative defenses would predominate should this case go to trial. As with
18 all class actions, these complex cases raise difficult management and proof issues and, accordingly,
19 there is a significant risk that the Court may deny class certification
20 38. Potential individualized issues exist with respect to Plaintiff’s meal period claims.
21 Given that records of actual meals taken exist, and Defendants argued that they had a compliant
22 policy and practice, Class Counsel had to consider the risk that the Court would find validity in
23 the individualized proof defense to certification of Plaintiff’s meal period claim.
24 39. Plaintiff faced challenges certifying and proving his rest period allegations.
25 Defendants claim they allowed employees to take their state mandated rest periods and employees
26 are not required to record these breaks. Given the lack of records demonstrating rest period
27
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DECLARATION OF HEATHER DAVIS IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY
APPROVAL - 11
1 violations, there were legitimate concerns Plaintiff would not be able to certify these claims or
2 prove substantial damages even assuming a uniform practice could be established.
3 40. Plaintiff also faced challenges certifying and proving liability for its minimum wage
4 and overtime claims. These claims were largely based on uncompensated off-the-clock work
5 performed by the class members both before and after their shift, as well as potential
6 uncompensated time that was unpaid due to Defendants’ meal period practices. Plaintiff’s analysis
7 revealed that even where Defendant’s records demonstrated an unusual number of meal periods of
8 exactly thirty minutes and that there was likely in fact a substantial amount of unpaid work where
9 employees were not being paid for. However, the fact that this time often went unrecorded and the
10 individualized nature of the damages presented substantial concerns regarding the manageability
11 of the case and the risk the Court could find these issues prevented certification.
12 41. There are also risks associated with Plaintiff’s waiting time penalties and wage
13 statement claims. For one, these claims were derivative of Plaintiff’s claims for unpaid meal and
14 rest period premiums, overtime, and failure to fully compensate class members for all time worked.
15 The risks faced by these claims also have affected the viability of Plaintiff’s waiting time penalties
16 and wage statement claims. Moreover, each of these claims faced additional risks specific to each
17 claim. For instance, Plaintiff would need to prove that Defendants’ waiting time violations were
18 willful. These derivative claims were extremely risky and accounted for more than three million
19 dollars of Defendants’ estimated liability.
20 42. Defendants deny Plaintiff’s allegations and claim they have properly paid putative
21 class members for all time worked. Based on Class Counsel’s experience litigating similar and
22 complex matters along with my familiarity with defense counsel’s reputation and experience, I
23 would reasonably expect a vigorous and lengthy defense to both class certification and merits
24 absent a settlement. Given the potential risks of these claims, I discounted my initial valuation 50
25 percent for the risks faced on these claims at certification from $2,694,202 to $1,347,101 and
26 another 50 percent for merit based risks following certification, including up to and through trial
27 to $673,550. Finally, I discounted my valuation by 50 percent for manageability at trial, from
28 $673,550 to $336,775.
DECLARATION OF HEATHER DAVIS IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY
APPROVAL - 12
1 43. I therefore submit that the Settlement is fair, reasonable, and adequate. The
2 Settlement is in the best interest of the Class Members and is within the accepted range of
3 recoveries for this type of litigation given the inherent risk of litigation, the risk of obtaining and
4 maintaining class certification and the costs of further litigation.
5
6 ATTORNEY FEES AND COSTS
7 44. Plaintiff’s Counsel’s fees incurred are in line with the common fund requested.
8 Plaintiff’s Counsel is seeking 35 percent of the Maximum Settlement Amount or $122,500.
9 Plaintiff’s Counsel has achieved an excellent result for the class during hard fought negotiations.
10 Plaintiff’s Counsel has extensive experience in wage and hour disputes and was able to use its
11 extensive experience and skills to achieve this result. The Motion for Final Approval will elaborate
12 on the nature of the legal services provided, the time incurred in performing those services, and
13 Class Counsel’s hourly rates. The Motion for Final Approval will also elaborate on the cost
14 reimbursement sought by Settlement Class Counsel, which are currently estimated at
15 approximately $8,500. Notice of Plaintiff’s Counsel’s requested fees are disclosed in the Notice to
16 the Class. See Agreement Ex. A.
17
18 THE METHOD OF NOTICE IS VERY LIKELY TO GIVE ACTUAL NOTICE
19 45. No later than thirty (30) calendar days after the Court grants preliminary approval
20 of the Settlement, Defendants will provide to the Settlement Administrator the following
21 information about each Settlement Class Member: (1) name; (2) last known address; (3) last known
22 telephone number (4) social security number; (5) payroll and tax information necessary to calculate
23 the total amount earned by each class member during the class period; and (6) other information
24 reasonably necessary to calculate settlement payments. (Ex. 1, ¶ 6)
25 46. The Settlement Administrator will run all the addresses provided through the
26 United States Postal Service NCOA database (which provides updated addresses for any individual
27 who has moved in the previous four years who has notified the U.S. Postal Service of a forwarding
28 address) to obtain current address information. (Ex. 1, ¶ 49).
DECLARATION OF HEATHER DAVIS IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY
APPROVAL - 13
1 47. Within ten (10) calendar days after receiving the Class List from Defendants, the
2 Claims Administrator will mail a Notice Packet to all Class Members via regular First-Class U.S.
3 Mail, using the most current, known mailing addresses identified in the Class List. (Ex. 1, ¶48).
4 48. I am not aware of an alternative method of providing Notice to the Class which
5 would result in a higher likelihood of actual notice. The original source of the mailing addresses
6 is from each Class Member, who provided the information to Defendants. As a fail-safe to this
7 highly reliable method, skip tracing will be performed if necessary. (Ex. 1, ¶49). Under the terms
8 of the Settlement, the Settlement Administrator will track any and all opt outs, objections, and
9 disputes.
10 I declare under penalty of perjury under the laws of the State of California that the foregoing is
11 true and correct. Executed on July 31, 2019 at El Segundo, California.
12 13 PROTECTION LAW GROUP, LLP
14 By: ______15 Heather Davis, Esq. 16 Attorneys for Plaintiff
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DECLARATION OF HEATHER DAVIS IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY
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EXHIBIT A
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF LOS ANGELES, SPRING STREET COURTHOUSE
10 FERNANDO GONZALEZ, individually, and on Case No.: BC685765 behalf of others similarly situated; 11 Assigned for all purposes: Honorable Carolyn B. Kuhl 12 Plaintiff, Dept. SS 12
13 vs. CLASS ACTION
14 QUEENS LAND BUILDER, INC; KINGS LAND DEVELOPMENT, INC.; NING JOINT STIPULATION OF CLASS ACTION 15 WANG, an individual; HONG CHEN, an AND PAGA SETTLEMENT AND RELEASE individual; and DOES 1 through 50, 16 inclusive, Complaint Filed: December 5, 2017 Trial Date: None Set 17 Defendants.
18 19
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JOINT STIPULATION OF CLASS ACTION AND PAGA SETTLEMENT AND RELEASE
1 JOINT STIPULATION OF CLASS ACTION AND PAGA SETTLEMENT AND RELEASE 2 This Joint Stipulation of Class Action and PAGA Settlement and Release (“Settlement” or 3 “Settlement Agreement”) is made and entered into by and between Plaintiff Fernando Gonzalez 4 (“Plaintiff” or “Class Representative”), as an individual and on behalf of all others similarly situated, and 5 Queens Land Builder, Inc.; Kings Land Development, Inc.; and Ning Wang, an individual (“Defendants”) 6 (collectively with Plaintiff, the “Parties”). 7 DEFINITIONS 8 The following definitions are applicable to this Settlement Agreement. Definitions contained 9 elsewhere in this Settlement Agreement will also be effective: 10 1. “Action” means the action entitled Gonzalez, et al. v. Queens Land Builder, Inc., et al., 11 Case No. BC685765 (Los Angeles County Superior Court). 12 2. “Attorneys’ Fees and Costs” means attorneys’ fees agreed upon by the Parties and 13 approved by the Court for Plaintiff’s Counsel’s litigation and resolution of the Action, and all costs incurred 14 and to be incurred by Plaintiff’s Counsel in the Action, including, but not limited to, costs associated with 15 documenting the Settlement, providing any notices required as part of the Settlement or Court order, 16 securing the Court’s approval of the Settlement, administering the Settlement, and expenses for any 17 experts. Plaintiff’s Counsel will request attorneys’ fees not in excess of Thirty-Five Percent of the Class 18 Settlement Amount, or One Hundred Twenty-Two Thousand Five Hundred Dollars and Zero Cents 19 ($122,500.00). The Attorneys’ Fees and Costs will also mean and include the reimbursement of any costs 20 and expenses associated with Plaintiff’s Counsel’s litigation and settlement of the Action, not to exceed 21 Eight Thousand Five Hundred Dollars and Zero Cents ($8,500.00), subject to the Court’s approval. 22 Defendants have agreed not to oppose Plaintiff’s Counsel’s request for fees and costs and expenses as set 23 forth above. The Attorneys’ Fees and Costs will be paid from the Class Settlement Amount. 24 3. “Claims Administrator” means ILYM, or any other third-party class action settlement 25 claims administrator agreed to by the Parties and approved by the Court for the purposes of administering 26 this Settlement. The Parties each represent that they do not have any financial interest in the Claims 27 Administrator or otherwise have a relationship with the Claims Administrator that could create a conflict 28 of interest.
Page 1 JOINT STIPULATION OF CLASS ACTION AND PAGA SETTLEMENT AND RELEASE
1 4. “Claims Administration Costs” means the costs payable from the Class Settlement 2 Amount to the Claims Administrator for administering this Settlement, including, but not limited to, 3 printing, distributing, and tracking documents for this Settlement, calculating estimated amounts per Class 4 Member, tax reporting, distributing the Class Settlement Amount, and providing necessary reports and 5 declarations, and other duties and responsibilities set forth herein to process this Settlement, and as 6 requested by the Parties. The Claims Administration Costs will be paid from the Class Settlement Amount, 7 including, if necessary, any such costs in excess of the amount represented by the Claims Administrator 8 as being the maximum costs necessary to administer the Settlement. The Claims Administration Costs 9 are currently estimated to be Thirteen Thousand Five Hundred Dollars and Zero Cents ($13,500.00). To 10 the extent actual Claims Administration Costs are greater than Thirteen Thousand Five Hundred Dollars 11 and Zero Cents ($13,500.00), such excess amount will be deducted from the Class Settlement Amount. 12 5. “Class Counsel” means Protection Law Group, LLP. 13 6. “Class List” means a complete list of all Class Members that Defendants will compile 14 from their records and provide to the Claims Administrator within thirty (30) calendar days after 15 Preliminary Approval of this Settlement. The Class List will be formatted in a readable Microsoft Office 16 Excel spreadsheet and will include each Class Member’s full name; most recent mailing address and 17 telephone number, if available; Social Security number, if available; the hire and termination dates, as 18 applicable; and the payroll and tax information necessary and available to calculate the total amount earned 19 by each Class Member during the Class Period (“Individual Amount Earned”). 20 7. “Class Member(s)” or “Settlement Class” means: all hourly, non-exempt employees 21 employed by Defendant in the State of California during the Class Period. 22 8. “Class Representative Enhancement Payment” means the amount to be paid to Plaintiff 23 in recognition of his effort and work in prosecuting the Action on behalf of Class Members, and for his 24 general release of claims. Subject to the Court granting final approval of this Settlement Agreement and 25 subject to the exhaustion of any and all appeals, Plaintiff will request Court approval of a Class 26 Representative Enhancement Payment of Five Thousand Dollars and Zero Cents ($5,000.00). 27 9. “Class Settlement Amount” means the maximum settlement amount of Three Hundred 28 Fifty Thousand Dollars and Zero Cents ($350,000.00) to be paid by Defendants in full satisfaction of all
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1 claims arising from the Action, which includes all Individual Settlement Payments to Participating Class 2 Members, the Class Representative Enhancement Payment to Plaintiff, Claims Administration Costs to 3 the Claims Administrator, the Labor and Workforce Development Agency Payment, and the Attorneys’ 4 Fees and Costs. Defendants will be separately responsible for any employer payroll taxes required by law, 5 including the employer FICA, FUTA, and SDI contributions. 6 10. “Court” means the Superior Court of the State of California for the County of Los 7 Angeles. 8 11. “Defendants” means Queens Land Builder, Inc.; Kings Land Development, Inc.; and 9 Ning Wang, an individual. 10 12. “Effective Date” means the later of: (a) if no timely objections are filed, or if all objections 11 are withdrawn, the date upon which the Court enters an order granting Final Approval of the Joint 12 Stipulation of Class Action and PAGA Settlement and Release; (b) the time for appeal has expired if an 13 objection has been filed and not withdrawn; or (c) the final resolution of any appeal that has been filed. 14 13. “Final Approval” means the Court entering an order granting final approval of the 15 Settlement Agreement. 16 14. “Final Approval Order” means the order granting Final Approval of Class Action and 17 PAGA Settlement and Judgement entered by the Court. 18 15. “First Amended Class Action Complaint” means the Complaint Plaintiff filed on 19 February 16, 2018. 20 16. “Individual Settlement Payment” means each Class Member’s share of the Net Settlement 21 Amount, to be distributed to the Class Members who do not opt out. 22 17. “Labor and Workforce Development Agency Payment” means the amount that the Parties 23 have agreed to pay to the Labor and Workforce Development Agency (“LWDA”) in connection with the 24 Labor Code Private Attorneys General Act of 2004 (Cal. Lab. Code §§ 2698, et seq., “PAGA”). The 25 Parties have agreed that Five Thousand Dollars and Zero Cents ($5,000.00) of the Class Settlement 26 Amount will be allocated to the resolution of any Class Members’ claims arising under PAGA. Pursuant 27 to PAGA, Seventy Five Percent (75%), or Three Thousand Seven Hundred Fifty Dollars and Zero Cents 28 ($3,750.00), of the Labor and Workforce Development Agency Payment will be paid to the California
Page 3 JOINT STIPULATION OF CLASS ACTION AND PAGA SETTLEMENT AND RELEASE
1 Labor and Workforce Development Agency, and Twenty Five Percent (25%), or One Thousand Two 2 Hundred Fifty Dollars and Zero Cents ($1,250.00), of the Labor and Workforce Development Agency 3 Payment will be included in the Net Settlement Amount for Settlement Class Members working within 4 the PAGA Class Period. 5 18. “Net Settlement Amount” means the portion of the Class Settlement Amount remaining 6 after deduction of the approved Class Representative Enhancement Payment, Claims Administration 7 Costs, Labor and Workforce Development Agency Payment, and the Attorneys’ Fees and Costs. The Net 8 Settlement Amount will be distributed to Participating Class Members. 9 19. “Notice of Class Action Settlement” means the document, substantially in the form 10 attached as Exhibit A, that will be mailed to Class Members’ last known addresses and which will provide 11 Class Members with information regarding the Action and information regarding the settlement of the 12 Action. 13 20. “Notice of Objection” means a Class Member’s valid and timely written objection to the 14 Settlement Agreement. For the Notice of Objection to be valid, it must include: (a) the objector’s full 15 name, signature, address, and telephone number, (b) a written statement of all grounds for the objection 16 accompanied by legal support, if any, for such objection; and (c) copies of any papers, briefs, or other 17 documents upon which the objection is based. 18 21. “Notice Packet” means the Notice of Class Action Settlement, substantially in the form 19 attached as Exhibits A. 20 22. “PAGA Class Period” means the period between December 5, 2016 through the date of 21 Preliminary Approval, or 120 days from the date of mediation, whichever date is earlier. 22 23. “Parties” means Plaintiff and Defendants collectively. 23 24. “Participating Class Members” means all Class Members who do not submit valid and 24 timely Requests for Exclusion. 25 25. “Plaintiff” means Fernando Gonzalez. 26 26. “Plaintiff’s Counsel” means Protection Law Group, LLP. 27 27. “Preliminary Approval” means the Court order granting preliminary approval of the 28 Settlement Agreement.
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1 28. “Released Claims” means all claims, rights, demands, liabilities, and causes of action, that 2 were or could have been pleaded based on the factual allegations set forth in the First Amended Class 3 Action Complaint, including, but not limited to: (i) all claims for unpaid overtime; (ii) all claims for unpaid 4 meal period premiums; (iii) all claims for unpaid rest period premiums; (iv) all claims for unpaid minimum 5 wages; (v) all claims for final wages not timely paid; (vi) all claims for wages not timely paid during 6 employment; (vii) all claims for failure to provide accurate wages statements; (viii) all claims for failure to 7 keep accurate payroll records; (ix) all claims asserted through California Business & Professions Code §§ 8 17200, et seq.; and (x) all claims asserted under California Labor Code §§ 2698, et seq. based on or related 9 to the preceding claims. Released Claims also means any claims, rights, demands, liabilities, damages, 10 wages, benefits, expenses, penalties, debts, obligations, attorneys’ fees, costs, any other form of relief or 11 remedy in law, equity, or whatever kind or nature, whether known or unknown, suspected or unsuspected, 12 or any related causes of action, that could potentially arise from the receipt of any monies as a result of this 13 Settlement by any member of the Settlement Class. 14 29. “Released Claims Period” for all claims except the PAGA Class Period means the period 15 from December 5, 2013 through the date of Preliminary Approval, or 120 days from the date of mediation, 16 whichever date is earlier. 17 30. “Released Parties” means Defendants and any and all of its former and present parents, 18 subsidiaries, affiliates, divisions, corporations in common control, predecessors, successors, and assigns, 19 as well as any and all past and present officers, owners, advisors, directors, trustees, members, 20 representatives, managers, contractors, subcontractors, employees, partners, shareholders and agents, 21 attorneys, insurers, and any other successors, assigns, or legal representatives, if any. 22 31. “Request for Exclusion” means a timely letter submitted by a Class Member indicating a 23 request to be excluded from the Settlement. The Request for Exclusion must: (a) be signed by the Class 24 Member; (b) contain the name, address, telephone number and the last four digits of the Social Security 25 Number of the Class Member requesting exclusion; (c) clearly state that the Class Member does not wish 26 to be included in the Settlement; (d) be returned by mail to the Claims Administrator at the specified 27 address and/or facsimile number; and (e) be postmarked on or before the Response Deadline. The date of 28 the postmark on the return mailing envelope will be the exclusive means to determine whether a Request
Page 5 JOINT STIPULATION OF CLASS ACTION AND PAGA SETTLEMENT AND RELEASE
1 for Exclusion has been timely submitted. A Class Member who does not request exclusion from the 2 Settlement will be deemed a Class Member and will be bound by all terms of the Settlement Agreement 3 if the Settlement is granted Final Approval by the Court. 4 32. “Response Deadline” means the deadline by which Class Members must postmark or fax 5 to the Claims Administrator valid Requests for Exclusion or postmark Notices of Objection to the 6 Settlement. The Response Deadline will be forty-five (45) calendar days from the initial mailing of the 7 Notice Packet by the Claims Administrator, unless the 45th day falls on a Sunday or Federal holiday, in 8 which case the Response Deadline will be extended to the next day on which the U.S. Postal Service is 9 open. The Response Deadline for Requests for Exclusion or objections will be extended fifteen (15) 10 calendar days for any Class Member who is re-mailed a Notice Packet by the Claims Administrator, unless 11 the 15th day falls on a Sunday or Federal holiday, in which case the Response Deadline will be extended 12 to the next day on which the U.S. Postal Service is open. The Response Deadline may also be extended 13 by express written agreement between Class Counsel and Defendants. Under no circumstances, however, 14 will the Claims Administrator have the authority to unilaterally extend the deadline for Class Members to 15 submit a Request for Exclusion or objection to the Settlement. 16 33. “Settlement Class Period” means December 5, 2013 through the date of Preliminary 17 Approval, or 120 days from the date of mediation, whichever date is earlier. 18 34. “Settlement Payment Check” means the payment to Participating Class Members 19 pursuant to this Settlement Agreement (who do not submit a valid Request for Exclusion from the 20 Settlement). The back of the Settlement Payment Check shall state, immediately below the space where 21 the check is to be endorsed by the payee: “By endorsing this check, I acknowledge that I read, understood, 22 and agree to the terms set forth in the Notice of Class Action Settlement.” 23 35. “Individual Amount Earned” means the total amount earned by a Class Member during 24 the Settlement Class Period. 25 36. “Total Amount Earned by Participating Class Members” means the total amount earned 26 by all Class Members during the Settlement Class Period. 27 TERMS OF AGREEMENT 28 The Plaintiff, on behalf of himself and the Settlement Class, and Defendants, agree as follows:
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1 37. Funding of the Class Settlement Amount. By (i) April 25, 2020 or (ii) the Effective Date 2 of the Settlement, whichever date is later, Defendants will deposit the Court-approved, claimed Class 3 Settlement Amount into a Qualified Settlement Account (“QSF”) to be established by the Claims 4 Administrator. Within ten (10) calendar days of the funding of the Settlement, the Claims Administrator 5 will issue payments to: (a) Participating Class Members; (b) the Labor and Workforce Development 6 Agency; (c) Plaintiff; and (d) Plaintiff’s Counsel. The Claims Administrator will also issue a payment to 7 itself for Court-approved services performed in connection with the settlement. 8 38. Attorneys’ Fees and Costs. Defendants agree not to oppose any application or motion by 9 Plaintiff’s Counsel for attorneys’ fees of not more than One Hundred Twenty-Two Thousand Five 10 Hundred Dollars and Zero Cents ($122,500.00), plus the reimbursement of costs and expenses associated 11 with Plaintiff’s Counsel’s litigation and settlement of the Action, not to exceed Eight Thousand Five 12 Hundred Dollars and Zero Cents ($8,500.00), both of which will be paid from the Class Settlement 13 Amount. 14 39. Class Representative Enhancement Payments. In exchange for a general release, and in 15 recognition of his effort and work in prosecuting the Action on behalf of Class Members, Defendants agree 16 not to oppose any application or motion for a Class Representative Enhancement Payment of Five 17 Thousand Dollars and Zero Cents ($5,000.00) to Plaintiff for his service on behalf of the Settlement Class. 18 The Class Representative Enhancement Payment will be paid from the Class Settlement Amount and will 19 be in addition to Plaintiff’s individual settlement payment paid pursuant to the Settlement. Plaintiff will 20 be solely and legally responsible to pay any and all applicable taxes on the payments made pursuant to this 21 paragraph and will indemnify and hold Defendants harmless from any claim or liability for taxes, penalties, 22 or interest arising as a result of the payments. 23 40. Claims Administration Costs. The Claims Administrator will be paid for the reasonable 24 costs of administration of the Settlement and distribution of payments from the Class Settlement Amount, 25 which are currently estimated to be Thirteen Thousand Five Hundred Dollars and Zero Cents 26 ($13,500.00). These costs, which will be paid from the Class Settlement Amount, will include, inter alia, 27 the required tax reporting on the Individual Settlement Payments, the issuing of 1099 and W-2 IRS Forms, 28 distributing the Notice Packet calculating and distributing the Class Settlement Amount, and providing
Page 7 JOINT STIPULATION OF CLASS ACTION AND PAGA SETTLEMENT AND RELEASE
1 necessary reports and declarations. 2 41. Acknowledgement of Potential Claims Administration Costs Increases. The Parties 3 hereby acknowledge that the Claims Administration Costs may increase above the current estimate of 4 Thirteen Thousand Five Hundred Dollars and Zero Cents ($13,500.00) and that any such additional Class 5 Administration Costs that are approved by counsel for the Parties shall be taken out of the Class Settlement 6 Amount. 7 42. Labor and Workforce Development Agency Payment. Subject to Court approval, the 8 Parties agree that the amount of Five Thousand Dollars and Zero Cents ($5,000.00) from the Class 9 Settlement Amount will be designated for satisfaction of Plaintiff’s and Class Members’ PAGA claims. 10 Pursuant to PAGA, Seventy Five Percent (75%), or Three Thousand Seven Hundred Fifty Dollars and 11 Zero Cents ($3,750.00), of the Labor and Workforce Development Agency Payment will be paid to the 12 LWDA, and Twenty Five Percent (25%), or One Thousand Two Hundred Fifty Dollars and Zero Cents 13 ($1,250.00), will become part of the Net Settlement Amount. 14 43. Net Settlement Amount. The Net Settlement Amount will be used to satisfy Individual 15 Settlement Payments to Participating Class Members from the Settlement Class in accordance with the 16 terms of this Settlement. 17 44. Individual Settlement Payment Calculations. Individual Settlement Payments will be 18 calculated and apportioned from the Net Settlement Amount based on the Individual Amount Earned 19 during the Settlement Class Period. Specific calculations of Individual Settlement Payments will be made 20 as follows: 21 44(a) The Class Administrator will calculate the total amount earned by each Class 22 Member (“Individual Amount Earned”) and the Total Amount Earned by 23 Participating Class Members during the Settlement Class Period. 24 44(b) To determine each Class Member’s Individual Settlement Payment, the 25 Claims Administrator will use the following formula: Individual Settlement 26 Payment = (Individual Amount Earned ÷ Total Amount Earned by 27 Participating Class Members) × Net Settlement Amount. 28 44(c) Each Class Member who worked during the PAGA Class Period is eligible
Page 8 JOINT STIPULATION OF CLASS ACTION AND PAGA SETTLEMENT AND RELEASE
1 to receive from the Net Settlement Amount the proportionate amount of the 2 Labor and Workforce Development Agency Payment based on the amount 3 earned during the PAGA Class Period. 4 44(d) If any Class Member requests to be excluded from the Settlement, these funds 5 shall remain part of the Net Settlement Amount and shall proportionally 6 increase each participating Class Member’s final Individual Settlement 7 Payment. 8 45. No Credit Toward Benefit Plans. The Individual Settlement Payments made to 9 Participating Class Members under this Settlement, as well as any other payments made pursuant to this 10 Settlement, will not be utilized to calculate any additional benefits under any benefit plans to which any 11 Class Members may be eligible, including, but not limited to profit-sharing plans, bonus plans, 401(k) 12 plans, stock purchase plans, vacation plans, sick leave plans, PTO plans, and any other benefit plan. 13 Rather, it is the Parties’ intention that this Settlement Agreement will not affect any rights, contributions, 14 or amounts to which any Class Members may be entitled under any benefit plans. 15 46. Claims Administration Process. The Parties agree to cooperate in the administration of 16 the Settlement and to make all reasonable efforts to control and minimize the costs and expenses incurred 17 in administration of the Settlement. The Claims Administrator will provide the following services: 18 46(a) Establish and maintain a Qualified Settlement Account. 19 46(b) Calculate the Individual Settlement Payment each Class Member is eligible 20 to receive. 21 46(c) Print and mail the Notice Packet. 22 46(d) Translate the Notice Packet from English to Spanish. 23 46(e) Establish and maintain a toll free information telephone support line to assist 24 Class Members who have questions regarding the Notice Packet. 25 46(f) Conduct additional address searches for mailed Notice Packets that are 26 returned as undeliverable. 27 46(g) Process Requests for Exclusion, calculate Participating Class Members’ 28 Individual Settlement Payment, field inquiries from Class Members, and
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1 administer of any Requests for Exclusion. This service will include 2 Settlement proceed calculation, printing and issuance of Settlement Payment 3 Checks, and preparation of IRS W2 and 1099 Tax Forms. Basic accounting 4 for and payment of employee tax withholdings will also be included as part 5 of this service. 6 46(h) Inform Defendants of its employer-side tax liability, if any. 7 46(i) Provide declarations and/or other information to this Court as requested by 8 the Parties and/or the Court. 9 46(j) Provide weekly status reports to counsel for the Parties. 10 46(k) Posting a notice of final judgment online at Claims Administrator’s website. 11 47. Delivery of the Class List. Within thirty (30) calendar days of Preliminary Approval, 12 Defendants will provide the Class List to the Claims Administrator. 13 48. Notice by First-Class U.S. Mail. Within ten (10) calendar days after receiving the Class 14 List from Defendants, the Claims Administrator will mail a Notice Packet to all Class Members via regular 15 First-Class U.S. Mail, using the most current, known mailing addresses identified in the Class List. 16 49. Confirmation of Contact Information in the Class List. Prior to mailing, the Claims 17 Administrator will perform a search based on the National Change of Address Database for information 18 to update and correct for any known or identifiable address changes. Any Notice Packets returned to the 19 Claims Administrator as non-deliverable on or before the Response Deadline will be sent promptly via 20 regular First-Class U.S. Mail to the forwarding address affixed thereto and the Claims Administrator will 21 indicate the date of such re-mailing on the Notice Packet. If no forwarding address is provided, the Claims 22 Administrator will promptly attempt to determine the correct address using a skip-trace, or other search 23 using the name, address and/or Social Security number of the Class Member involved, and will then 24 perform a single re-mailing. Those Class Members who receive a re-mailed Notice Packet, whether by 25 skip-trace or by request, will have between the later of (a) an additional fifteen (15) calendar days or (b) 26 the Response Deadline to postmark a Request for Exclusion, or an objection to the Settlement. 27 50. Notice Packets. All Class Members will be mailed a Notice Packet. Each Notice Packet 28 will provide: (a) information regarding the nature of the Action; (b) a summary of the Settlement’s
Page 10 JOINT STIPULATION OF CLASS ACTION AND PAGA SETTLEMENT AND RELEASE
1 principal terms; (c) the Settlement Class definition; (d) the total amount earned by each respective Class 2 Member who worked for Defendants during the Settlement Class Period; (e) each Class Member’s 3 estimated Individual Settlement Payment and the formula for calculating Individual Settlement Payments; 4 (f) the dates which comprise the Settlement Class Period; (g) the deadlines by which the Class Member 5 must postmark or fax Requests for Exclusion or postmark Notices of Objection to the Settlement; (h) the 6 claims to be released, as set forth herein; and (j) the date for the final approval hearing. 7 51. Disputed Information on Notice Packets. Class Members will have an opportunity to 8 dispute the information provided in their Notice Packets. To the extent Class Members dispute the total 9 amount earned to which they have been credited or the amount of their Individual Settlement Payment, 10 Class Members may produce evidence to the Claims Administrator showing that such information is 11 inaccurate. Absent evidence rebutting Defendants’ records, Defendants’ records will be presumed 12 determinative. However, if a Class Member produces evidence to the contrary, the Claims Administrator 13 will evaluate the evidence submitted by the Class Member and will make the final decision as to the total 14 amount earned that should be applied and/or the Individual Settlement Payment to which the Class 15 Member may be entitled. All such disputes are to be resolved not later than fourteen (14) calendar days 16 after the Response Deadline. 17 52. Defective Submissions. If a Class Member’s Request for Exclusion is defective as to the 18 requirements listed herein, that Class Member will be given an opportunity to cure the defect(s). The 19 Claims Administrator will mail the Class Member a cure letter within three (3) business days of receiving 20 the defective submission to advise the Class Member that his or her submission is defective and that the 21 defect must be cured to render the Request for Exclusion valid. The Class Member will have until the later 22 of (a) the Response Deadline or (b) fifteen (15) calendar days from the date of the cure letter, whichever 23 date is later, to postmark or fax a revised Request for Exclusion. If a Class Member responds to a cure 24 letter by filing a defective claim, then the Claims Administrator will have no further obligation to give 25 notice of a need to cure. If the revised Request for Exclusion is not postmarked or received by fax within 26 that period, it will be deemed untimely. 27 53. Request for Exclusion Procedures. Any Class Member wishing to opt-out from the 28 Settlement Agreement must sign and postmark or fax a written Request for Exclusion to the Claims
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1 Administrator within the Response Deadline. The date of the postmark on the return mailing envelope or 2 fax receipt confirmation will be the exclusive means to determine whether a Request for Exclusion has 3 been timely submitted. All Requests for Exclusion will be submitted to the Claims Administrator, who 4 will certify jointly to Class Counsel and Defendants’ Counsel the Requests for Exclusion that were timely 5 submitted. The Request for Exclusion does not apply to claims arising under the Private Attorney General 6 Act (California Labor Code Sections 2698, et seq.). Class Members who submit valid requests for 7 exclusion will still receive a check for their share of the PAGA settlement amount. 8 54. Defendants’ Right to Rescind. If 10% or more of the Class Members elect not to 9 participate in the Settlement, Defendants may, at its election, rescind the Settlement Agreement and all 10 actions taken in furtherance of it will be thereby null and void. Defendants must exercise this right of 11 rescissions, in writing, to Class Counsel within 14 calendar days after the Claims Administrator notifies 12 the Parties of the total number of opt-outs. If Defendants exercise their right to rescind, then Defendants 13 will be responsible for all Claims Administration Costs incurred to the date of rescission. 14 55. Settlement Terms Bind All Class Members Who Do Not Opt-Out. Any Class Member 15 who does not affirmatively opt-out of the Settlement Agreement by submitting a timely and valid Request 16 for Exclusion will be bound by all of its terms, including those pertaining to the Released Claims, as well 17 as any Judgment that may be entered by the Court if it grants final approval to the Settlement. All Class 18 Members will be deemed to have fully, finally and forever released, settled, compromised, relinquished, 19 and discharged, any and all Released Claims arising under the Private Attorney General Act (California 20 Labor Code Sections 2698 et. seq) and the opt-out procedures do not apply to these claims. 21 56. Objection Procedures. To object to the Settlement Agreement, a Class Member must 22 postmark a valid Notice of Objection to the Claims Administrator on or before the Response Deadline. 23 The Notice of Objection must be signed by the Class Member and contain all information required by this 24 Settlement Agreement. The postmark date will be deemed the exclusive means for determining that the 25 Notice of Objection is timely. Class Members who fail to object in the specific and technical manner 26 specified above will be deemed to have waived all objections to the Settlement and will be foreclosed from 27 making any objections and seeking any adjudication or review, whether by appeal or otherwise, to the 28 Settlement Agreement. Class Members who postmark timely Notices of Objection will have a right to
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1 appear at the Final Approval Hearing in order to have their objections heard by the Court. At no time will 2 any of the Parties or their counsel seek to solicit or otherwise encourage Class Members to submit written 3 objections to the Settlement Agreement or appeal from the Order and Judgment. Class Counsel will not 4 represent any Class Members with respect to any such objections to this Settlement. 5 57. Reminders. Not earlier than twenty (20) calendar days or later than twenty-five (25) 6 calendar days after the initial mailing, the Claims Administrator will mail a Reminder Postcard to all Class 7 Members who have not returned a Request for Exclusion. All Reminder Postcards will include the 8 Response Deadline, and the contact information for the Claims Administrator. 9 58. Certification Reports Regarding Individual Settlement Payment Calculations. The Claims 10 Administrator will provide Defendants’ counsel and Class Counsel a weekly report which certifies: (a) the 11 number of Participating Class Members from the Settlement Class who have submitted valid Requests for 12 Exclusion; (b) the Net Settlement Amount claimed by Participating Class Members; and (c) whether any 13 Class Member has submitted a challenge to any information contained in their Notice Packet. 14 Additionally, the Claims Administrator will provide to counsel for both Parties any updated reports 15 regarding the administration of the Settlement Agreement as needed or requested. 16 59. Uncashed Settlement Checks. Any checks issued by the Claims Administrator to 17 Participating Class Members will be negotiable for at least one hundred and eighty (180) calendar days. 18 Those funds represented by settlement checks returned as undeliverable and those settlement checks 19 remaining un-cashed for more than one hundred and eighty (180) calendar days after issuance by the 20 Settlement Administrator shall be voided. Within thirty days (30) days after the expiration date of the 21 settlement checks, the Settlement Administrator shall provide to Class Counsel and Defendants’ Counsel 22 a verification/declaration signed under penalty of perjury that it has mailed the settlement checks to 23 Participating Class Members, and if uncashed, that such amounts have been sent to the Department of 24 Industrial Relations Unpaid Wage Fund (Cal. Lab. Code §§ 96.6. and 96.7) in the name of the Settlement 25 Class Member to whom the uncashed Net Settlement Payment check was addressed. 26 60. Certification of Completion. Upon completion of administration of the Settlement, the 27 Claims Administrator will provide a written declaration under oath to certify such completion to the Court 28 and counsel for all Parties.
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1 61. Tax Treatment of Individual Settlement Payments. All Individual Settlement Payments 2 will be allocated as follows: twenty percent (20%) wages; forty percent (40%) penalties; and forty percent 3 (40%) interest and shall be calculated based on the total amount earned by each Class Member within the 4 Class Liability Period. The portion allocated to wages will be reported on an IRS Form W-2 and the 5 portions allocated to non-wages will be reported on an IRS Form-1099 by the Claims Administrator. 6 62. Administration of Taxes by the Claims Administrator. The Claims Administrator will be 7 responsible for issuing to Plaintiff, Participating Class Members, and Plaintiff’s Counsel any W-2, 1099, 8 or other tax forms as may be required by law for all amounts paid pursuant to this Settlement. The Claims 9 Administrator will also be responsible for forwarding all payroll taxes and penalties to the appropriate 10 government authorities. 11 63. Tax Liability. Defendants make no representation as to the tax treatment or legal effect of 12 the payments called for hereunder, and Plaintiff and Participating Class Members are not relying on any 13 statement, representation, or calculation by Defendants or by the Claims Administrator in this regard. 14 Plaintiff and Participating Class Members understand and agree that except for Defendants’ payment of 15 the employer’s portion of any payroll taxes, they will be solely responsible for the payment of any taxes 16 and penalties assessed on the payments described herein. 17 64. Circular 230 Disclaimer. EACH PARTY TO THIS AGREEMENT (FOR PURPOSES 18 OF THIS SECTION, THE “ACKNOWLEDGING PARTY” AND EACH PARTY TO THIS 19 AGREEMENT OTHER THAN THE ACKNOWLEDGING PARTY, AN “OTHER PARTY”) 20 ACKNOWLEDGES AND AGREES THAT (1) NO PROVISION OF THIS AGREEMENT, AND NO 21 WRITTEN COMMUNICATION OR DISCLOSURE BETWEEN OR AMONG THE PARTIES OR 22 THEIR ATTORNEYS AND OTHER ADVISERS, IS OR WAS INTENDED TO BE, NOR WILL 23 ANY SUCH COMMUNICATION OR DISCLOSURE CONSTITUTE OR BE CONSTRUED OR BE 24 RELIED UPON AS, TAX ADVICE WITHIN THE MEANING OF UNITED STATES TREASURY 25 DEPARTMENT CIRCULAR 230 (31 CFR PART 10, AS AMENDED); (2) THE 26 ACKNOWLEDGING PARTY (A) HAS RELIED EXCLUSIVELY UPON HIS, HER OR ITS OWN, 27 INDEPENDENT LEGAL AND TAX COUNSEL FOR ADVICE (INCLUDING TAX ADVICE) IN 28 CONNECTION WITH THIS AGREEMENT, (B) HAS NOT ENTERED INTO THIS AGREEMENT
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1 BASED UPON THE RECOMMENDATION OF ANY OTHER PARTY OR ANY ATTORNEY OR 2 ADVISOR TO ANY OTHER PARTY, AND (C) IS NOT ENTITLED TO RELY UPON ANY 3 COMMUNICATION OR DISCLOSURE BY ANY ATTORNEY OR ADVISER TO ANY OTHER 4 PARTY TO AVOID ANY TAX PENALTY THAT MAY BE IMPOSED ON THE 5 ACKNOWLEDGING PARTY; AND (3) NO ATTORNEY OR ADVISER TO ANY OTHER PARTY 6 HAS IMPOSED ANY LIMITATION THAT PROTECTS THE CONFIDENTIALITY OF ANY 7 SUCH ATTORNEY’S OR ADVISER’S TAX STRATEGIES (REGARDLESS OF WHETHER SUCH 8 LIMITATION IS LEGALLY BINDING) UPON DISCLOSURE BY THE ACKNOWLEDGING 9 PARTY OF THE TAX TREATMENT OR TAX STRUCTURE OF ANY TRANSACTION, 10 INCLUDING ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT. 11 65. No Prior Assignments. The Parties and their counsel represent, covenant, and warrant 12 that they have not directly or indirectly assigned, transferred, encumbered, or purported to assign, transfer, 13 or encumber to any person or entity any portion of any liability, claim, demand, action, cause of action or 14 right herein released and discharged. 15 66. Release by Class Members. It is the desire of the Plaintiff, Class Members (except those 16 who exclude themselves from the Settlement), and Defendants to fully, finally, and forever settle, 17 compromise, and discharge the claims asserted in the Action. Upon the Final Approval by the Court of 18 this Settlement Agreement, and except as to such rights or claims as may be created by this Settlement 19 Agreement, the Class Members shall fully release and discharge the Released Parties from any and all 20 Released Claims for the entire Released Claims Period. This release shall be binding on all Class Members 21 who have not timely submitted a valid and complete Request for Exclusion, including each of their 22 respective attorneys, agents, spouses, executors, representatives, guardians ad litem, heirs, successors, and 23 assigns, and shall inure to the benefit of the Released Parties, who shall have no further or other liability or 24 obligation to any Class Member with respect to the Released Claims, except as expressly provided herein. 25 67. Release of Additional Claims & Rights by Plaintiff. Upon the Effective Date, and as a 26 condition of receiving any portion of his Class Representative Enhancement Payment, Plaintiff will agree 27 to the additional following General Release: In consideration of Defendants’ promise and agreements as 28 set forth herein, Plaintiff hereby fully releases the Released Parties from any and all Released Claims and
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1 also generally releases and discharges the Released Parties from any and all claims, demands, grievances, 2 obligations, causes of action, rights, and liabilities of any kind and of every nature and description 3 whatsoever, which have been or could have been asserted against the Released Parties , including but not 4 limited to claims for wages, restitution, penalties, retaliation, defamation, discrimination, harassment or 5 wrongful termination of employment, whether brought in tort or contract, or under state, federal or local 6 law, statute or regulation. This release specifically includes any and all claims, demands, obligations 7 and/or causes of action for damages, restitution, penalties, interest, and attorneys’ fees and costs (except 8 provided by the Settlement Agreement) relating to or in any way connected with the matters referred to 9 herein, whether or not known or suspected to exist, and whether or not specifically or particularly described 10 herein. Specifically, Plaintiff waives all rights and benefits afforded by California Civil Code Section 11 1542, which provides: 12 A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE 13 CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR 14 AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR 15 HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH 16 THE DEBTOR. 17 68. Nullification of Settlement Agreement. In the event that: (a) the Court does not finally 18 approve the Settlement as provided herein; (b) the Court strikes or does not approve any material term of 19 this Settlement Agreement, as determined in the discretion of either Party; or (c) the Settlement does not 20 become final as written and agreed to by the Parties for any other reason, then this Settlement Agreement, 21 and any documents generated to bring it into effect including the Memorandum of Understanding, will be 22 null and void, all amounts deposited into the QSF will be returned to Defendants, and the Parties shall be 23 returned to their original respective positions. Any order or judgment entered by the Court in furtherance 24 of this Settlement Agreement will likewise be treated as void from the beginning. 25 69. Preliminary Approval Hearing. Plaintiff will obtain a hearing before the Court to request 26 Preliminary Approval of the Settlement Agreement, and the entry of a Preliminary Approval Order for: 27 (a) conditional certification of the Settlement Class for settlement purposes only, (b) Preliminary Approval 28 of the proposed Settlement Agreement, and (c) setting a date for a Final Approval/Settlement Fairness
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1 Hearing. The Preliminary Approval Order will provide for the Notice Packet to be sent to all Class 2 Members as specified herein. In conjunction with the Preliminary Approval hearing, Plaintiff will submit 3 this Settlement Agreement, which sets forth the terms of this Settlement, and will include the proposed 4 Notice Packet; i.e., the proposed Notice of Class Action Settlement attached as Exhibit A. Class Counsel 5 will be responsible for drafting all documents necessary to obtain preliminary approval. Any failure by 6 the Court to fully and completely approve the Settlement Agreement as to all of the Action, or the entry of 7 any Order by another Court with regard to any of the Action which has the effect of preventing the full 8 and complete approval of the Settlement Agreement as written and agreed to by the Parties, will result in 9 this Settlement Agreement and the Memorandum of Understanding entered into by the Parties, and all 10 obligations under this Settlement Agreement and the Memorandum of Understanding being nullified and 11 voided. 12 70. Final Settlement Approval Hearing and Entry of Judgment. Upon expiration of the 13 deadlines to postmark Requests for Exclusion or objections to the Settlement Agreement, and with the 14 Court’s permission, a Final Approval/Settlement Fairness Hearing will be conducted to determine the 15 Final Approval of the Settlement Agreement along with the amounts properly payable for: (a) Individual 16 Settlement Payments; (b) the Labor and Workforce Development Agency Payment; (c) the Attorneys’ 17 Fees and Costs; (d) the Class Representative Enhancement Payment; and (e) the Claims Administration 18 Costs. Class Counsel will be responsible for drafting all documents necessary to obtain Final Approval. 19 Class Counsel will also be responsible for drafting the attorneys’ fees and costs application to be heard at 20 the final approval hearing. Any failure by the Court to fully and completely approve the Settlement 21 Agreement as to all of the Action, or the entry of any Order by another Court with regard to any of the 22 Action which has the effect of preventing the full and complete approval of the Settlement Agreement as 23 written and agreed to by the Parties, will result in this Settlement Agreement and the Memorandum of 24 Understanding entered into by the Parties, and all obligations under this Settlement Agreement and the 25 Memorandum of Understanding being nullified and voided. 26 71. Judgment and Continued Jurisdiction. Upon Final Approval of the Settlement by the 27 Court or after the Final Approval/Settlement Fairness Hearing, the Parties will present the Judgment to the 28 Court for its approval. After entry of the Judgment, the Court will have continuing jurisdiction solely for
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1 purposes of addressing: (a) the interpretation and enforcement of the terms of the Settlement, (b) 2 Settlement administration matters, and (c) such post-Judgment matters as may be appropriate under court 3 rules or as set forth in this Settlement. 4 72. Exhibits Incorporated by Reference. The terms of this Settlement include the terms set 5 forth in any attached Exhibits, which are incorporated by this reference as though fully set forth herein. 6 Any Exhibits to this Settlement are an integral part of the Settlement. 7 73. Entire Agreement. This Settlement Agreement and any attached Exhibits constitute the 8 entirety of the Parties’ settlement terms. No other prior or contemporaneous written or oral agreements 9 may be deemed binding on the Parties. 10 74. Amendment or Modification. This Settlement Agreement may be amended or modified 11 only by a written instrument signed by counsel for all Parties or their successors-in-interest. 12 75. Authorization to Enter Into Settlement Agreement. Counsel for all Parties warrant and 13 represent they are expressly authorized by the Parties whom they represent to negotiate this Settlement 14 Agreement and to take all appropriate action required or permitted to be taken by such Parties pursuant to 15 this Settlement Agreement to effectuate its terms and to execute any other documents required to effectuate 16 the terms of this Settlement Agreement. The Parties and their counsel will cooperate with each other and 17 use their best efforts to affect the implementation of the Settlement. If the Parties are unable to reach 18 agreement on the form or content of any document needed to implement the Settlement, or on any 19 supplemental provisions that may become necessary to effectuate the terms of this Settlement, the Parties 20 may seek the assistance of the Court to resolve such disagreement. 21 76. Binding on Successors and Assigns. This Settlement Agreement will be binding upon, 22 and inure to the benefit of, the successors or assigns of the Parties hereto, as previously defined. 23 77. California Law Governs. All terms of this Settlement Agreement and Exhibits hereto will 24 be governed by and interpreted according to the laws of the State of California. 25 78. Execution and Counterparts. This Settlement Agreement is subject only to the execution 26 of all Parties. However, the Settlement Agreement may be executed in one or more counterparts. All 27 executed counterparts and each of them, including facsimile and scanned copies of the signature page, will 28 be deemed to be one and the same instrument provided that counsel for the Parties will exchange among
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1 themselves original signed counterparts. 2 79. Acknowledgement that the Settlement is Fair and Reasonable. The Parties believe this 3 Settlement Agreement is a fair, adequate, and reasonable settlement of the Action and have arrived at this 4 Settlement after arm’s-length negotiations and in the context of adversarial litigation, taking into account 5 all relevant factors, present and potential. The Parties further acknowledge that they are each represented 6 by competent counsel and that they have had an opportunity to consult with their counsel regarding the 7 fairness and reasonableness of this Settlement. In addition, the mediator may execute a declaration 8 supporting the Settlement and the reasonableness of the Settlement and the Court may, in its discretion, 9 contact the mediator to discuss the Settlement and whether or not the Settlement is objectively fair and 10 reasonable. 11 80. Invalidity of Any Provision. Before declaring any provision of this Settlement Agreement 12 invalid, the Court will first attempt to construe the provision as valid to the fullest extent possible consistent 13 with applicable precedents so as to define all provisions of this Settlement Agreement valid and 14 enforceable. 15 81. Certain Appeals. Either party may appeal any court order that materially alters the 16 Settlement Agreement’s terms. 17 82. Class Action Certification for Settlement Purposes Only. The Parties agree to stipulate to 18 class action certification only for purposes of the Settlement. If, for any reason, the Settlement is not 19 approved, the stipulation to certification will be void. The Parties further agree that certification for 20 purposes of the Settlement is not an admission that class action certification is proper under the standards 21 applied to contested certification motions and that this Settlement Agreement will not be admissible in this 22 or any other proceeding as evidence that either: (a) a class action should be certified or (b) Defendants are 23 liable to Plaintiff or any Class Member, other than according to the Settlement’s terms. 24 83. Non-Admission of Liability. The Parties enter into this Settlement Agreement to resolve 25 the dispute that has arisen between them and to avoid the burden, expense and risk of continued litigation. 26 In entering into this Settlement Agreement, Defendants do not admit, and specifically deny, they have 27 violated any federal, state, or local law; violated any regulations or guidelines promulgated pursuant to any 28 statute or any other applicable laws, regulations or legal requirements; breached any contract; violated or
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1 breached any duty; engaged in any misrepresentation or deception; or engaged in any other unlawful 2 conduct with respect to their employees. Neither this Settlement Agreement, nor any of its terms or 3 provisions, nor any of the negotiations connected with it, shall be construed as an admission or concession 4 by Defendants of any such violations or failures to comply with any applicable law. Nothing contained in 5 this Settlement Agreement is to be construed or deemed an admission of liability, culpability, negligence, 6 or wrongdoing on the part of Defendants. Except as necessary in a proceeding to enforce the terms of this 7 Settlement Agreement, this Settlement Agreement and its terms and provisions shall not be offered or 8 received as evidence in any action or proceeding to establish any liability or admission on the part of 9 Defendants or to establish the existence of any condition constituting a violation of, or a non-compliance 10 with, federal, state, local or other applicable law. 11 84. Captions. The captions and section numbers in this Settlement Agreement are inserted 12 for the reader’s convenience, and in no way define, limit, construe or describe the scope or intent of the 13 provisions of this Settlement Agreement. 14 85. Waiver. No waiver of any condition or covenant contained in this Settlement Agreement 15 or failure to exercise a right or remedy by any of the Parties hereto will be considered to imply or constitute 16 a further waiver by such party of the same or any other condition, covenant, right or remedy. 17 86. Enforcement Action. In the event that one or more of the Parties institutes any legal action 18 or other proceeding against any other Party or Parties to enforce the provisions of this Settlement or to 19 declare rights and/or obligations under this Settlement, the successful Party or Parties will be entitled to 20 recover from the unsuccessful Party or Parties reasonable attorneys’ fees and costs, including expert 21 witness fees, incurred in connection with any enforcement actions. 22 87. Mutual Preparation. The Parties have had a full opportunity to negotiate the terms and 23 conditions of this Settlement Agreement. Accordingly, this Settlement Agreement will not be construed 24 more strictly against one party than another merely by virtue of the fact that it may have been prepared by 25 counsel for one of the Parties, it being recognized that, because of the arms-length negotiations between 26 the Parties, all Parties have contributed to the preparation of this Settlement Agreement. 27 88. Representation By Counsel. The Parties acknowledge that they have been represented by 28 counsel throughout all negotiations that preceded the execution of this Settlement Agreement, and that this
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1 Settlement Agreement has been executed with the consent and advice of counsel, and reviewed in full. 2 Further, Plaintiff and Class Counsel warrant and represent that there are no liens on the Settlement 3 Agreement. 4 89. All Terms Subject to Final Court Approval. All amounts and procedures described in this 5 Settlement Agreement herein will be subject to final Court approval. 6 90. Cooperation and Execution of Necessary Documents. All Parties will cooperate in good 7 faith and execute all documents to the extent reasonably necessary to effectuate the terms of this Settlement 8 Agreement. 9 91. Confidentiality. Plaintiff, Plaintiff’s Counsel, Class Counsel, Defendants and their 10 counsel agree that they will not issue any press releases, initiate any contact with the press, respond to any 11 press inquiry or have any communication with the press or any internet, media or other public forum about 12 the Action or the fact, or the amount or terms of the Settlement Agreement prior to Preliminary Approval. 13 Nothing in this Settlement Agreement shall limit Defendants’ ability to fulfill disclosure obligations 14 reasonably required by law or in furtherance of business purposes, including the fulfillment of obligations 15 stated in this Settlement Agreement 16 92. Binding Agreement. The Parties warrant that they understand and have full authority to 17 enter into this Settlement, and further intend that this Settlement Agreement will be fully enforceable and 18 binding on all parties, and agree that it will be admissible and subject to disclosure in any proceeding to 19 enforce its terms, notwithstanding any mediation confidentiality provisions that otherwise might apply 20 under federal or state law. 21 22 23 24 25 26 27 28
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EXHIBIT A NOTICE OF PROPOSED CLASS ACTION SETTLEMENT Gonzalez v. Queens Land Builder, Inc., et al. Los Angeles Superior Court, Case No. BC685765
THIS IS A COURT-AUTHORIZED NOTICE. IT IS NOT A SOLICITATION. PLEASE READ THIS NOTICE CAREFULLY. YOUR LEGAL RIGHTS ARE AFFECTED WHETHER YOU ACT OR DO NOT ACT.
To: All hourly, non-exempt employees who were employed by Queens Land Builder, Inc.; King’s Land Development, Inc.; or Ning Wang, an individual, in California from December 5, 2013 and through [the Date of Preliminary Approval or 120 days from the date of mediation, whichever date is earlier].
BASIC INFORMATION
1. What is this settlement about?
A lawsuit was commenced by a former employee of Defendants Queens Land Builder, Inc.; King’s Land Development, Inc.; or Ning Wang, an individual (“Defendants”) on December 5, 2017. The case is currently pending in the Los Angeles County Superior Court, Case No. BC685765.
The lawsuit claims that Defendants did not provide compliant meal and rest periods and associated premium pay, did not properly pay all overtime and minimum wage compensation due and owing, did not provide accurate wage statements, did not timely pay all wages during employment and all wages owed at termination of employment, did not maintain accurate records. The lawsuit also seeks associated penalties and relief for unfair business practices. The lawsuit claims that the Defendants violated the California Labor Code; the California Business and Professions Code; and California Labor Code §§ 2698, et seq. based on or related to the preceding claims entitling Class Members to, inter alia, damages, penalties and restitution. Defendants deny all alleged violations and deny that they owe Class Members any remedies. The Court has not made a ruling on the merits of the case.
2. Why is this a class action?
In a class action, one or more people called Class Representative (in this case Fernando Gonzalez, also known as “Plaintiff”), sue on behalf of people who appear to have similar claims (in this case all hourly, non-exempt employees employed by Defendants in the State of California at any time from December 5, 2013 through [the Date of Preliminary Approval or 120 days from the date of mediation, whichever date is earlier]). All these people are referred to here as Class Members. One court resolves the issues for all Class Members in one lawsuit, except for those who exclude themselves from the Class. The Los Angeles Superior Court is in charge of this class action.
3. Why is there a settlement?
The Court has not decided in favor of the Plaintiff, the Class, or Defendants. There has been no finding of any wrongdoing by Defendants. Instead, both sides agreed to a settlement which is memorialized in the Joint Stipulation of Settlement and Release (“Settlement Agreement” or “Settlement”). On _____, the Court granted preliminary approval of the Settlement and appointed Plaintiff Fernando Gonzalez as Class Representative and appointed his attorneys PROTECTION LAW GROUP, LLP as counsel for the Class (“Class Counsel”).
The Class Representatives and Class Counsel think the Settlement is best for the Class.
WHO IS IN THE SETTLEMENT?
4. How do I know if I am part of the settlement?
You are part of the Settlement, and a Class Member, if you were employed by Defendants as an hourly, non-exempt employee employed by Defendant in the state of California at any time between December 5, 2013 through [the Date of Preliminary Approval or 120 days from the date of mediation, whichever date is earlier].
THE SETTLEMENT BENEFITS—WHAT YOU GET
5. What does the settlement provide?
The Settlement provides that Defendants will have to pay a maximum of Three Hundred Fifty Thousand Dollars and Zero Cents ($350,000.00) (“Maximum Settlement Amount”).
Net Settlement Amount: the portion of the Maximum Settlement Amount that will be available for distribution to Class Members who do not submit timely and valid Requests for Exclusion (“Class Members”), is the Maximum Settlement Amount less the following amounts (which are subject to Court approval): A. Attorneys’ Fees to Class Counsel not to exceed 35% of the Gross Settlement Amount or One Hundred Twenty-Two Thousand Five Hundred Dollars and Zero Cents ($122,500.00); B. Litigation Costs/Expenses to Class Counsel not to exceed Eight Thousand Five Hundred Dollars and Zero Cents ($8,500.00); C. Enhancement Payments to the Class Representative in an amount not to exceed Five Thousand Dollars and Zero Cents ($5,000.00) for Fernando Gonzalez; D. Settlement Administration Costs which are currently estimated to be $13,000. E. Payment to the Labor and Workforce Development Agency in the amount of $3,750 for penalties pursuant to the Private Attorney General Act (PAGA Payment). The amount of money remaining after these payments, the Net Settlement Amount, is the amount that will be distributed to Class Members if the Settlement is granted final approval by the Court. The portion of the Net Settlement Amount that you are eligible to claim (“Estimated Settlement Share”) will be determined on a pro rata basis, based on the number of weeks you worked in California as an hourly-paid or non- exempt employee of Defendants from December 5, 2013 through [the Date of Preliminary Approval or 120 days from the date of mediation, whichever date is earlier] (“Workweeks”).
Your Estimated Settlement Share will be apportioned as twenty percent (20%) wages; forty percent (40%) penalties; and forty percent (40%) interest. The wage portion of the Estimated Settlement Share will be subject to withholding for the employee’s share of taxes, and will be reported on a W-2 Form (Defendants will pay the employer’s taxes and withholdings separately for, and in addition to the Gross Settlement Amount). The penalties and interest portions will not be subject to any withholdings and will be reported on an IRS Form 1099.
Your Estimated Settlement Share is $XXX.XX. The amount of the payment may change depending on the number of timely and valid Requests for Exclusions submitted in the Settlement, if any.
HOW TO GET A PAYMENT FROM THE NET SETTLEMENT AMOUNT -2-
6. How can I get a payment?
You do not have to do anything to qualify for a payment of your portion of the Net Settlement Amount.
7. What am I giving up if I do not opt-out of the Settlement?
Upon the Effective Date, Class Members who do not timely submit a Request for Exclusion will be deemed to have fully, finally and forever released, settled, compromised, relinquished, and discharged Defendants, and all their respective current and former parents, subsidiaries, predecessors and successors, and affiliated entities, and each of its respective officers, directors, employees, partners, shareholders, and agents, and any other successors, assigns, or legal representatives (collectively “Released Parties”) from any and all California state law wage-and-hour claims, rights, demands, liabilities, and/or causes of action arising from any and all acts and occurrences asserted in the Complaint.
The release of Released Claims pertains to the time period of December 5, 2013 through [the Date of Preliminary Approval or 120 days from the date of mediation, whichever date is earlier].
The Released Claims do not include claims for workers’ compensation benefits, retaliation, discrimination, or any claims that may not be released by law.
EXCLUDING YOURSELF FROM THE RELEASE OF CLAIMS
If you want to keep the right to sue or continue to sue Defendants with respect to the Released Claims you must submit a Request for Exclusion in conformity with the requirements set forth herein. If you exclude yourself, you will not receive payment of a portion of the Net Settlement Amount.
8. What if I do not want to release my claims?
To exclude yourself from the release of Released Claims you must submit a written Request for Exclusion. You must include your name, address, dates you worked for Defendants as an hourly, non-exempt employee, and your signature. Your Request for Exclusion must also include the following statement, or something similar: “I received notice of the proposed settlement in Gonzalez v. Queens Land Builder, Inc. et al Los Angeles Superior Court Case No. BC685765 and wish to be excluded from the Settlement of Released Claims I understand that in asking to be excluded, I will not receive any portion of the Net Settlement Amount approved by the Court in this case.”
The written Request for Exclusion must be mailed to the Settlement Administrator at the address listed below, post- marked by [45 calendar days after mailing of notice]. You cannot exclude yourself by phone.
[Claims Administrator] [Address] [Fax No.]
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9. If I don’t exclude myself, can I sue Defendants for the same thing later?
No. Unless you submit a Request for Exclusion, you give up the right to sue Defendants and Released Parties for Released Claims. If you have a pending lawsuit involving Released Claims, speak to your lawyer in that lawsuit immediately.
10. If I exclude myself, can I get money from this settlement?
No. But if you submit a timely and valid Request for Exclusion, you retain any right that you may have to sue, continue to sue, or be part of a different lawsuit against Released Parties for Released Claims
THE LAWYERS REPRESENTING YOU
11. Do I have a lawyer in this case?
The Court has approved PROTECTION LAW GROUP, LLP as Class Counsel. The firm’s contact information is:
PROTECTION LAW GROUP LLP Heather Davis, Esq. 136 Main Street, Suite A El Segundo, California 90245 Telephone: (424) 290-3095 Facsimile: (866) 264-7880
12. How will the lawyers be paid?
Class Counsel will ask the Court for attorneys’ fees of up to $122,500.00 and reimbursement of litigation cost/expenses of up to $8,500.00. These amounts are subject to Court approval and the Court may award less than these amounts.
OBJECTING TO THE SETTLEMENT
You can object to the Settlement or some part of it.
13. How do I tell the Court if I don’t like the settlement?
If you are a Class Member, you can object to the Settlement and you can give reasons for why you think the Court should not approve it. The Court will consider your views. To object, you must mail your objection to the Claims Administrator no later than [45 calendar days after mailing of notice. If you object to the settlement you must state the specific reason for your objection including any legal support, as well as your full name, date of birth, and the dates your worked as an hourly-paid or non-exempt employee of Defendants.
14. What is the difference between objecting and excluding?
Objecting is simply telling the Court that you do not like something about the Settlement. You can object only if you stay in the Class. Excluding yourself is telling the Court that you do not want to be part of the Settlement. If you exclude yourself, you have no basis to object because the case no longer affects you.
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THE COURT’S FAIRNESS HEARING
The Court will hold a hearing to decide whether to grant final approval of the Settlement (“Final Approval Hearing”). You may attend and you may ask to speak, but you do not have to attend.
15. When and where will the Court decide whether to approve the settlement?
The Court will hold the Final Approval Hearing at [______p.m.] on [______, 2018], at the Los Angeles County Superior Court located at 312 North Spring Street, Los Angeles, CA 90012 in Department SSC 12.
At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate, and determine whether to grant final approval of the Settlement. If there are objections, the Court will consider them.
16. Do I have to come to the hearing?
No. If you agree to the Settlement, or filed and served an objection or Request for Exclusion in compliance with the requirements set forth above, you do not have to come to Court to talk about it. However, you may attend and speak, or you may also retain your own lawyer at your expense to attend on your behalf.
17. How will I learn if the settlement was approved
A notice of final judgment will be posted on the Claims Administrator website located at www.______.com
IF YOU DO NOTHING
18. What happens if I do nothing at all?
If you do nothing, you receive your share of the Net Settlement Amount, and you will release the Released Claims. You will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Defendants or Released Parties about the Released Claims, ever again.
GETTING MORE INFORMATION
19. How do I get more information?
This notice summarizes the proposed Settlement. More details are in the Settlement Agreement, which is attached as Exhibit ___ to ____. You can get a copy of the Settlement Agreement by viewing the settlement located on the Claims Administrator’s website at ______or by contacting the Settlement Administrator or Class Counsel.
20. What if my information changes?
It is your responsibility to inform the Settlement Administrator of your updated information to ensure receipt of settlement payments or communications regarding this matter. You can change or update your contact information by using the Claim Form and/or by contacting the Settlement Administrator.
DO NOT ADDRESS ANY QUESTIONS ABOUT THE SETTLEMENT OR THE LITIGATION TO THE CLERK OF THE COURT OR THE JUDGE
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