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Case 3:09-cv-02422-JM-DHB Document 149 Filed 12/21/12 PageID.6876 Page 1 of 10 1 MATTHEW J. MATERN (SBN 159798) WENDY SHA (SBN 240364) 2 RASTEGAR & MATERN, ATTORNEYS AT LAW 1010 Crenshaw Boulevard, Suite 100 3 Torrance, CA 90501 Telephone: (310) 218-5500 4 Facsimile: (310) 218-1155 [email protected] 5 [email protected] 6 JAMES M. FINBERG (SBN 114850) EVE H. CERVANTEZ (SBN 164709) 7 PEDER J. THOREEN (SBN 217081) ALTSHULER BERZON LLP 8 177 Post Street, Suite 300 San Francisco, CA 94108 9 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 10 [email protected] [email protected] 11 [email protected] 12 Class Counsel 13 IN THE UNITED STATES DISTRICT COURT 14 SOUTHERN DISTRICT OF CALIFORNIA 15 DOMONIQUE HINES, individually, and on Case No. 3:09-cv-02422-JM-DHB behalf of all other similarly situated current 16 and former employees of KFC U.S. NOTICE OF MOTION AND MOTION FOR Properties, Inc., FINAL APPROVAL OF CLASS ACTION 17 SETTLEMENT AND FOR FINAL Plaintiffs, CERTIFICATION OF SETTLEMENT 18 CLASS; MEMORANDUM OF POINTS AND v. AUTHORITIES IN SUPPORT 19 THEREOF KFC U.S. PROPERTIES, INC., a Delaware 20 corporation; and DOES 1 through 100, Hearing Date: January 28, 2013 inclusive, Hearing Time: 10:00 a.m. 21 Courtroom: 16 Judge: Hon. Jeffrey T. Miller 22 Defendants. 23 24 25 26 27 28 MOTION FOR FINAL SETTLEMENT APPROVAL; MEMO IN SUPPORT U.S.D.C., S.D. Cal. No. 3:09-CV-02422-JM-DHB Case 3:09-cv-02422-JM-DHB Document 149 Filed 12/21/12 PageID.6877 Page 2 of 10 1 NOTICE OF MOTION AND MOTION 2 PLEASE TAKE NOTICE that on January 28, 2013 at 10:00 a.m., or as soon thereafter as the 3 matter may be heard, in Courtroom 16 of this Court, located at 940 Front St., San Diego, CA 92101, 4 Plaintiffs will, and hereby do, move for orders granting final approval of the parties’ class action 5 settlement, and finally certifying the proposed settlement class. 6 Plaintiffs’ Motion is based on this Notice, and the accompanying Memorandum of Points and 7 Authorities, the Declaration of James M. Finberg in Support of Motion for Final Approval of Settlement 8 (“Finberg Decl.”), the Declaration of Mark Patton (“Patton Decl.”), and the Settlement Agreement 9 (Docket No. 143-2), all other pleadings and papers on file in this action, and any oral argument the 10 Court permits. 11 12 Dated: December 21, 2012 JAMES M. FINBERG ALTSHULER BERZON LLP 13 14 By: ____/s/ James M. Finberg______ James M. Finberg 15 JAMES M. FINBERG (SBN 114850) 16 EVE H. CERVANTEZ (SBN 164709) PEDER J. THOREEN (SBN 217081) 17 ALTSHULER BERZON LLP 177 Post Street, Suite 300 18 San Francisco, CA 94108 Telephone: (415) 421-7151 19 Facsimile: (415) 362-8064 20 MATTHEW J. MATERN (SBN 159798) WENDY SHA (SBN 240364) 21 RASTEGAR & MATERN, ATTORNEYS AT LAW 22 1010 Crenshaw Boulevard, Suite 100 Torrance, CA 90501 23 Telephone: (310) 218-5500 Facsimile: (310) 218-1155 24 25 26 27 28 MOTION FOR FINAL SETTLEMENT APPROVAL; -1- MEMO IN SUPPORT U.S.D.C., S.D. Cal. No. 3:09-CV-02422-JM-DHB Case 3:09-cv-02422-JM-DHB Document 149 Filed 12/21/12 PageID.6878 Page 3 of 10 1 MEMORANDUM IN SUPPORT OF MOTION 2 The parties have agreed to settle the claims in this action for $3,550,000, plus interest. The 3 settlement provides meaningful relief for thousands of class members. The settlement also provides 4 Class Members a recovery now, without the delays attendant with further litigation. Particularly given 5 the very real risks associated with continued litigation, the parties’ settlement easily satisfies the “fair, 6 reasonable, and adequate” standard for final approval. See Fed. R. Civ. P. 23(e). 7 Class members have responded favorably to the settlement. Class notice and claim forms were 8 mailed to 17,022 class members on October 29, 2012, in both English and Spanish. Patton Decl., ¶3. 9 As of December 20, 2012, the claims administrator had already received 3,712 claim forms (id. at ¶8), 10 and the deadline for submitting claim forms is not until December 28, 2012. The deadline for opting out 11 of, or objecting to, the settlement passed on December 13, 2012. See id. ¶¶10-11. Only 12 class 12 members opted out. Id. ¶10. Not one class member objected to the terms of the settlement. Id. ¶11. 13 Class counsel, who are experienced in litigating employment class action cases, and who were 14 thoroughly familiar with the law and facts of this case at the time the settlement was negotiated, believe 15 that this proposed settlement is in the best interest of the class. 16 FACTUAL BACKGROUND 17 I. THE TERMS OF THE SETTLEMENT ARE FAIR, REALSONABLE, AND 18 ADEQUATE. Within 10 days after the Court grants final settlement approval, KFC will deposit the sum of 19 $3,550,000 into an interest-bearing account set up by the claims administrator for the benefit of the 20 plaintiff class. Dkt. No. 143-2 (“Settlement Agreement”), Section X. Under the settlement, no portion 21 of that money will revert to KFC. Settlement Agreement, Section X.B. 22 After payment of such attorneys’ fees and costs and expenses and payments as are awarded by 23 the Court, and reasonable costs of claims administration, the entire balance of the Settlement Fund, plus 24 accrued interest, will be paid to class members who submit timely claims. Id., Section XIII. The net 25 settlement fund will be allocated among claimants in proportion to days worked in class jobs. Id., 26 Section XIII.A.2. 27 28 MOTION FOR FINAL SETTLEMENT APPROVAL; -1- MEMO IN SUPPORT U.S.D.C., S.D. Cal. No. 3:09-CV-02422-JM-DHB Case 3:09-cv-02422-JM-DHB Document 149 Filed 12/21/12 PageID.6879 Page 4 of 10 1 In exchange for these payments, Class Members will release claims arising out of the facts 2 alleged in this case, as follows: 3 A. Release of Claims: In consideration of his or her eligibility for a Settlement 4 Share, as of the date the Final Approval Order is entered by the Court, each and every Class Member, on behalf of themselves and their heirs and assigns, unless he or she 5 has properly elected to opt out of the class, upon the Settlement becoming Final, hereby releases KFC and its former and current parents, subsidiaries, and affiliated 6 corporations, its officers, directors, shareholders, and any other successors, or assigns from any claims that were brought, or could have been brought, arising out of the 7 facts alleged in the Complaint in this action, including statutory, constitutional, 8 contractual, or common claims for wages, damages, unpaid costs, restitution, penalties, liquidated damages, punitive damages, interest, attorneys’ fees, litigation 9 costs, restitution and/or equitable relief for failure to provide meal or rest breaks as required by California law, the failure to pay for all the time worked after closing 10 shifts, the failure to pay employees the amounts owed to them when they separated from KFC based on the facts alleged in the complaint, including claims under the 11 California Labor Code relating to meal and rest breaks, overtime, waiting time 12 penalties or record keeping, unfair and unlawful business practices in violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code §17200 et seq., arising 13 from these facts, or penalties established by the California Private Attorney General Act, Cal. Labor Code §2698 et seq., arising from these facts (“Released Claims”). 14 B. Waiver of California Civil Code Section 1542: With respect to the subject 15 matter of their respective Released Claims, Class Members expressly waive and 16 relinquish the provisions, rights and benefits of section 1542 of the California Civil Code and any analogous law, statute, or rule. Section 1542 states: 17 A general release does not extend to claims which the creditor does not know 18 or suspect to exist in his or her favor at the time of executing the release, 19 which if known by him or her must have materially affected his or her settlement with the debtor. 20 Class Members may hereafter discover facts in addition to or different from those 21 they now know or believe to be true with respect to the subject matter of the Released Claims, but upon the date when the Final Approval Order becomes Final, 22 shall be deemed to have, and by operation of the Final Judgment shall have, fully, 23 finally, and forever settled and released any and all of the Released Claims, whether known or unknown, suspected or unsuspected, contingent or non-contingent, which 24 now exist, or heretofore have existed, upon any theory of law or equity now existing or coming into existence in the future, including, but not limited to, conduct that is 25 negligent, intentional, with or without malice, or a breach of any duty, law or rule, 26 without regard to the subsequent discovery or existence of such different or additional facts. 27 Settlement Agreement, Section XIV. 28 MOTION FOR FINAL SETTLEMENT APPROVAL; -2- MEMO IN SUPPORT U.S.D.C., S.D. Cal. No. 3:09-CV-02422-JM-DHB Case 3:09-cv-02422-JM-DHB Document 149 Filed 12/21/12 PageID.6880 Page 5 of 10 1 II. CLASS COUNSEL WERE FULLY INFORMED WHEN THE SETTLEMENT WAS NEGOTIATED. 2 Class Counsel engaged in extensive fact-gathering, motion practice, and discovery before 3 agreeing to the terms of the proposed settlement.

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