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1 Carolyn H. Cottrell (SBN 166977)
David C. Leimbach (SBN 265409)
2 SCHNEIDER WALLACE
COTTRELL KONECKY LLP
3 2000 Powell Street, Suite 1400
Emeryville, California 94608
4 Telephone: (415) 421-7100
Facsimile: (415) 421-7105
5 ccottrell@schneiderwallace.com
dleimbach@schneiderwallace.com
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7 Attorneys for Plaintiff Rachel Moniz,
the State of California, and Aggrieved Employees
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9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SAN MATEO
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RACHEL MONIZ, on behalf of the State of Case No. 17CIV01736
12 California and aggrieved employees,
Assigned for All Purposes to
13 Plaintiff, Hon. Marie S. Weiner, Dept. 2
14 vs. DECLARATION OF DAVID C.
LEIMBACH IN SUPPORT OF RENEWED
15 ADECCO USA, INC., and DOES 1-50, MOTION TO APPROVE SETTLEMENT
inclusive, PURSUANT TO PRIVATE ATTORNEYS
16 GENERAL ACT OF 2004
Defendants.
17 Date: June 7, 2022
Time: 2:00 PM
18 Place: Dept. 2
19 Complaint Filed April 18, 2017
Trial Date: None Set
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DECLARATION OF DAVID C. LEIMBACH IN SUPPORT OF RENEWED MOTION TO APPROVE
SETTLEMENT PURSUANT TO PRIVATE ATTORNEYS GENERAL ACT OF 2004
1 DECLARATION OF DAVID C. LEIMBACH
2 I, David C. Leimbach, hereby declare as follows:
3 1. I am an attorney duly licensed to practice law in the State of California. I am a member in
4 good standing of the State Bar of California, I am admitted to the United States District Courts for the
Northern, Eastern, Central, and Southern Districts of California. I am admitted to the Ninth Circuit Court of
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Appeals, and I am a member of the Bar of the United States Supreme Court.
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2. I am a partner at Schneider Wallace Cottrell Konecky LLP (“SWCK”). SWCK specializes
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in class action and Private Attorneys General Act of 2004 (“PAGA”) litigation in state and federal court.
8 3. SWCK represents Plaintiff Rachel Moniz on behalf of the State of California and
9 Aggrieved Employees (“Moniz”). Plaintiffs’ Counsel have prosecuted the above-captioned consolidated
10 action filed against Defendant Adecco USA, Inc.
11 4. I submit this declaration in support of Plaintiffs’ Renewed Motion to Approve Settlement
Pursuant to Private Attorneys General Act of 2004 in this Action. I have been actively involved in the
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prosecution of this PAGA Action since prior to filing the complaint. I am familiar with the file, the
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documents, and the history related to this Action. The following statements are based on my personal
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knowledge and review of the files. If called to do so, I could and would testify competently thereto.
15 5. The Settlement Agreement of Representative Action Under Labor Code Private Attorneys
16 General Act (the “Settlement”) is the subject of this motion resolves this action. A true and correct copy of
17 the Settlement is attached hereto as Exhibit 1.
18 6. On May 13, 2019, Plaintiff filed a Memorandum of Points and Authorities in Support of
Joint Motion to Approve Settlement Pursuant to Private Attorneys General Act of 2004. A true and correct
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copy of the Settlement is attached hereto as Exhibit 2.
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7. On May 13, 2019, Plaintiff filed a Declaration of Carolyn Hunt Cottrell in Support of Joint
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Motion to Approve Settlement Pursuant to Private Attorneys General Act of 2004. A true and correct copy
22 of the Settlement is attached hereto as Exhibit 3.
23 8. On May 13, 2019, Plaintiff filed a Declaration of Rachel Moniz in Support of Joint Motion
24 to Approve Settlement Pursuant to Private Attorneys General Act of 2004. A true and correct copy of the
25 Settlement is attached hereto as Exhibit 4.
9. On May 14, 2019, Plaintiff filed a Memorandum of Points and Authorities in Support of
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Joint Motion to Approve Settlement Pursuant to Private Attorneys General Act of 2004. A true and correct
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copy of the Settlement is attached hereto as Exhibit 5.
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10. On May 14, 2019, Plaintiff filed a Declaration of Carolyn Hunt Cottrell in Support of Joint
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DECLARATION OF DAVID C. LEIMBACH IN SUPPORT OF RENEWED MOTION TO APPROVE
SETTLEMENT PURSUANT TO PRIVATE ATTORNEYS GENERAL ACT OF 2004
1 Motion to Approve Settlement Pursuant to Private Attorneys General Act of 2004. A true and correct copy
2 of the Settlement is attached hereto as Exhibit 6.
11. On May 14, 2019, Plaintiff filed a Declaration of Rachel Moniz in Support of Joint Motion
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to Approve Settlement Pursuant to Private Attorneys General Act of 2004. A true and correct copy of the
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Settlement is attached hereto as Exhibit 7.
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12. On May 15, 2019, Plaintiff filed an Amended Declaration of Carolyn Hunt Cottrell in
6 Support of Joint Motion to Approve Settlement Pursuant to Private Attorneys General Act of 2004. A true
7 and correct copy of the Settlement is attached hereto as Exhibit 8.
8 13. On June 16, 2019, Plaintiff filed a Declaration of Kyle G. Bates in Support of Approve of
9 PAGA Settlement in the above-captioned case. A true and correct copy of the Settlement is attached hereto
as Exhibit 9.
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14. On July 2, 2019, Plaintiff filed a declaration of Kyle G. Bates in support of Approve of
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PAGA Settlement in the above-captioned case. A true and correct copy of the Settlement is attached hereto
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as Exhibit 10.
13 15. On November 22, 2019, the court issued an order granting Approval of PAGA Settlement.
14 A true and correct copy of the Settlement is attached hereto as Exhibit 11.
15 16. On January 15, 2020, the court issued an order granting Plaintiff’s Attorney Fees, Cost, and
16 Incentive Awards. A true and correct copy of the Settlement is attached hereto as Exhibit 12.
17. On November 30,2021, the Court of Appeals of the State of California, First Appellate
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District published an Opinion reversing the Judgment. A true and correct copy of the opinion is attached
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hereto as Exhibit 13.
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18. To date, SWCK’s costs and expenses—costs that would be normally billed to a fee-paying
20 client—consist of copying, printing, court fees, courier fees, filings and service of process, court reporters,
21 transcripts, depositions, delivery and messengers, postage and mailings, research services and document
22 retrieval, travel-related costs and expenses, and mediator fees are $45,114.34. A true and correct copy of the
23 bill summary is attached hereto as Exhibit 14.
19. Plaintiff’s counsel’s attorneys’ fees, not including at least some time spent on this motion,
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are $1,264,634.00. A true and correct copy of the bill summary is attached hereto as Exhibit 15.
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20. A true and correct copy of the Volume 1, AA0087-90, the Employment Agreement for
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Colleagues in California is attached hereto as Exhibit 16.
27 21. A true and correct copy of the Volume 2, AA1260-61, Employee Acknowledgement and
28 Non-Disclosure Agreement is attached hereto as Exhibit 17.
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DECLARATION OF DAVID C. LEIMBACH IN SUPPORT OF RENEWED MOTION TO APPROVE
SETTLEMENT PURSUANT TO PRIVATE ATTORNEYS GENERAL ACT OF 2004
1 22. A true and correct copy of the Volume 2, AA1270-71, Relevant Excerpts from Adecco
2 Employee Handbook is attached hereto as Exhibit 18.
3 I declare under penalty of perjury under the laws of the State of California that the foregoing is true
4 and correct. Executed this 11th day of May, 2022, at San Francisco, California.
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David C. Leimbach
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Attorney for Plaintiff Rachel Moniz,
9 the State of California, and Aggrieved Employees
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DECLARATION OF DAVID C. LEIMBACH IN SUPPORT OF RENEWED MOTION TO APPROVE
SETTLEMENT PURSUANT TO PRIVATE ATTORNEYS GENERAL ACT OF 2004
EXHIBIT 1
SETTLEMENT AGREEMENT
This Settlement Agreement is made by and between: (a) Plaintiff Rachel Moniz (“Plaintiff’),on
behalf ofherself, other aggrieved employees, and the State of California, on the one hand; and (b) Defendant
Adecco USA, Inc. (“Defendant”) on the other hand, subj ect to the approval of the Court in accordance with
California Labor Code section 2699(1)(2), and subject to the following terms and conditions.
I. DEFINITIONS
Unless otherwise defined in this Agreement, the following tenns used in this Agreement shall have
the meanings ascribed t0 them as set forth below:
A. “Action” means the civil action titled Rachel Moniz v. Adecco USA, Ina, filed in the
Superior Court of the State of California, County of San Mateo, Case No. 17CIV01736.
“Agreement,” “Settlement,” or “Settlement Agreement” means this Settlement Agreement.
“Complaint” means the operative Complaint filed in the Action.
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“Court” means the Superior Court for the State 0f California County of San Mateo.
“Covered Period” means the period of time from February 1,2016 t0 the date the Court
grants approval of the Settlement.
711 “Defendant” means Adecco USA, Inc.
“Defendant’s Counsel” means the law firm 0f Jackson Lewis P.C.
“Final” means: (1) that the Settlement has been finally approved by the Court with no
objections (including objections by Plaintiff or Plaintiffs Counsel as to the award of
incentive payments 0r attorney’s fees, which must be made within fifteen (15) days of the
order or are otherwise waived); 0r (2) if there are obj actions, either (a) the California Court
0f Appeal has rendered a final judgment affirming the Court’s final approval Without
material modification and the date for further appeal has passed without further appeal; or
(b) the applicable date for seeking appellate review of the Court’s final approval 0f the
Settlement has passed Without a timely appeal or request for review having been made.
“Order” means the Order Granting Approval of Settlement. The flames will submit a
proposed Order in the form evidenced by Exhibit A to this Agreement for consideratiOn by
the Court.
“PAGA” means Califomia’s Labor Code Private Attorneys General Act, Cal. Lab. Code §
2699, et seq.
“Parties” means Plaintiff and Defendant collectively.
“LWDA” means the California Labor and Workforce Development Agency.
“LWDA Payment” means the portion of the payment from the Net Settlement Amount to
be paid to the LWDA under the Settlement Agreement.
“Net Settlement Amount” means the amount from the Total Settlement Amount that is
available for distribution for the LWDA Payment and for Settlement Shares to the PAGA
Settlement Members after deducting (1) Plaintiff’sCounsel’s attorney’s fees and costs (the
amount ofwhich is subj ect t0 Court approval); (2) the Settlement Administrator’s fees and
expenses (the amount of which is subject to Court approval); and (3) Plaintiffs Incentive
Payment (the amount of which is subj ect to Court approval). The Net Settlement Amount
will be distributed to the LWDA and PAGA Settlement Members in payment of PAGA
penalties.
“PAGA Settlement Members” means cunent and former employees of Defendant who
worked as an Associate or Colleague in California at any point during the Covered Period.
“Plaintiff”means Plaintiff Rachel Moniz.
“Plaintiffs Counsel” means the law firm of Schneider Wallace Cottrell Konecky Wotkyns
LLP.
“Released Claims” means any and allknown and unknown claims under the PAGA against
the Released Parties that were or could have been pled based 0n the factual allegations 0f
the Complaint, including but not limited to Plaintiffs allegation that Defendant unlawfully
prohibited current and fotmer employees from: (1) disclosing certain information including
but not limited to salary, benefits, wages, identities of other employees, training and
operations methods, and office protocols and systems and programs and systems; (2)
discussing the wages of others, engaging in whistleblower activity, or disclosing or
discussing their working conditions. This includes, but is not limited to, claims for
Violation 0f California Labor Code sections 232, 232.5, 432.51 102.5, 1197.5(k), and, 2699
et seq., CaliforniaBusiness and Professions section 17200 et seq, 18 U.S.C. section 1833,
and 17 CFR 240.21F-17.
“Released Parties” means Defendant and any of its present and former parents, subsidiaries
and affiliated companies or entities,and their respective officers, directors, employees,
partners, shareholders and agents, as well as any other successors, assigns and legal
representatives and their related persons and entities.
“Settlement Administrator” means the third-pany administrator selected by Plaintiff and
approved by the Court to administer this Settlement. ~
“Settlement Share” means the portion of the Net Settlement Amount allocable to each
PAGA Settlement Member as provided by this Agreement.
V. “Total Settlement Amount” means the total amount to be paid by Defendant as provided
by thisAgreement.
II. FACTUAL BACKGROUND
A. On April 18, 2017, Plaintiff filed this Action against Defendant, alleging inter alia that
Defendant’s confidentiality and non—disclosure provisions prohibited employees from
disclosing their own wages, discussing the wages of others, engaging in whistleblowing
activity,and disclosing 0r discussing their working conditions in Violation of California
Labor Code sections 232, 1197.5(k), 232.5, 1102.5, and 432.5, California Business and
Professions section 17200 et seq.,18 U.S.C. section 1833, and 17 CFR 240.21F-17. As
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relief,Plaintiff seeks to recover civil penaltiesunder PAGA 0n behalf of herself, other
aggrieved employees, and the State of California.
Plaintiff submitted a letter to the LWDA on February 1, 2017, regarding the allegations
above and Plaintiffs intention to file a civil action unless the LWDA elected to investigate
the allegations on its own. The LWDA did not indicate an intention t0 investigate the
allegations on itsown within the applicable statutory time period.
The Parties participated in mediation with David Rotman, a highly respected mediator in
employment law, on January 10, 2019, and January 21, 2019. Following the January 21
mediation, Mr. Rotman made a mediator’s proposal, which the Parties accepted and which
serves as {he basis for this Agreement.
This Agreement represents a full compromise and settlement of highly disputed claims.
Nothing in this Agreement is intended or will be construed as an admission by Defendant
that Plaintiff‘s claims in the Action have merit or that Defendant has any liabilityto
Plaintiff or any of the PAGA Settlement Members. Nor is this Agreement an admission
by Plaintiff that Defendant’s defenses in the Action have merit.
III. SETTLEMENT TERMS AND CONDITIONS
A. Stipulation of Dismissal for Settlement. Subj ect t0 the terms 0f this Agreement, Plaintiff
Will stipulate to the dismissal of this Action with prejudice.
Representation Regarding PAGA Settlement Members. Defendant represents that the
PAGA Settlement Members consist of approximately 61,637 individuals, which Defendant
represents are allof Defendants’ California employees from Febmary 1, 2016 through
March 24, 2019.
Total Settlement Amount. The Total Settlement Amount isfour million five—hundred
thousand dollars ($4,500,000). The Total Settlement Amount will cover: (a) all payments
to PAGA Settlement Members pursuant to the Settlement (described in Section HLG-H);
(b) theLWDA Payment set forth in Section 111.]; (c) Plaintiffs attorneys’ fees, costs, and
expenses (which includes all such fees and costs incurred to date, as well as all such fees
and costs incurred in documenting the settlement, securing Court approval of the
Settlement including any and all motions related thereto, and obtaining a dismissal of the
claims encompassed by this Agreement) (described in Section HLE); (d) the Incentive
Payment to Plaintiff set forth in Section HLF; and (e) the Settlement Administrator’s fees
and expenses set forth in Section111.1.
Additional Consideration. As additional consideration for this Settlement and as a direct
result 0f this Settlement, Defendant agrees to revise its Colleague Agreement and Associate
Agreement and related policies which allegedly limitemployees from disclosing theirown
salary, wages, benefits and related working conditions; and/or from discussing same with
others; and/or from engaging in whistleblowing activity. Defendant does not concede said
agreements and policies do so, and this additional consideration is not in any way t0 be
construed as an admission by Defendant.
Attorneys’ Fees and Litigation Costs. Defendant will not oppose an application by
Plaintiff for attorneys’ fees inan amount that does not exceed 33% of the Total Settlement
Amount ($1,500,000). Defendant will also not oppose an application by Plaintiff for up to
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$45,000 in litigation costs. IRS Forms 1099 and state and local equivalents will be issued
to Plaintiffs Counsel for any awarded attorneys’ fees and costs. Plaintiff’s Counsel Will
not seek, or be entitled to any attorneys’ fees and/or expenses related to the claims and
allegations in this Action, other than those specified in this Agreement. Plaintiff’s counsel,
and no other counsel, were involved in the negotiations leading to this settlement and no
other counsel’s work contributed to the negotiation or crafting of this Agreement.
Plaintist Counsel’s sole efforts, and no others“,helped to create, discover, increase and
preserve the PAGA Settlement Members recovery in this Action.
Incentive Payment. Plaintiffs Counsel will request, and Defendant Will not oppose, an
incentive payment to Plaintiff from the Total Settlement Amount in an amount not t0
exceed $20,000. This incentive payment shall be in addition to Whatever payment Plaintiff
is otherwise entitled toas a PAGA Settlement Member. Plaintiff will be issued an IRS
Form 1099 and its state and local equivalents for any incentive payment amount received
under the Settlement. Should the Court award less than $20,000 for the Incentive Payment,
Plaintiff agrees that (a) she will accept the Court’s ruling; and (b) an award 0f less than
$20,000 for the Incentive Payment does not serve as a basis for appeal or otherwise affect
the implementation of this Agreement per Section III.Q below.
Settlement Shares. Subject to the terms and conditions of this Agreement, each PAGA
Settlement Member will be allocated a Settlement Share from 25% of the Net Settlement
Amount; the remainder of the Net Settlement Amount shall be paid to the LWDA as part
of the LWDA Payment. The Settlement Share is intended to settle claims for PAGA civil
penalties. Accordingly, the payments to PAGA Settlement Members will not be reduced
by payroll tax withholding and deductions; instead, the Settlement Administrator will is sue
to the PAGA Settlement Members IRS Form 1099s and their state and local equivalents
with respect to the payments.
Distribution 0f Settlement Shares t0 PAGA Settlement Members. After deducting the
amounts for the LWDA Payment, the remainder of the Net Settlement Amount will be paid
as Settlement Shares to each PAGA Settlement Member. The portion ofthe Net Settlement
Amount available for distribution to PAGA Settlement Group Members (25% of the Net
Settlement Amount) Willbe divided as follows: $627,660.00, 0r 88% ofthe Net Settlement
Amount, will be paid t0 the Associates (with an estimated per—person payment of $10.27)
and $85,590, or 12% ofthe Net Settlement Amount (with an estimated per-person payment
of $ 1 5 7. 92).
Additional Amounts For Additional Aggrieved Employees. The Patties agree that, in
exchange for the scope of the Released Claims extending from February 1, 2016 through
the date that the Parties’ Settlement is approved by the Court, Adecco will increase the
Total Settlement Amount by $41.08 per each additional Associate added to PAGA
Settlement Members and by $631.68 per each additional Colleague added t0 PAGA
Settlement Members (75% of which will go to the State 0f California and 25% of which
will g0 to the individual PAGA Settlement Member) (which is the per-person share of the
Total Settlement Amount based 0n the total number of existing aggrieved employees) for
each additional aggrieved employee that is employed between March 24, 2019 and the date
that the Parties’Settlement is approved by the Court. The number 0f aggrieved employees
shall not increase following the Court’s approval of the Settlement Agreement.
Payments to Settlement Administrator. The Settlement Administrator will pay itself out
0f the Total Settlement Amount itsreasonable fees and expenses, as approved by the Court.
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The Settlement Administrator’s reasonable fees and expenses shall not exceed
$100,000.00.
LWDA Payment. The Settlement Administrator will pay 75% of the Net Settlement
Amount to the LWDA as itsshare of the Settlement attributable to civil penalties under
PAGA. If the Court approves an LWDA Payment of less than 75% of the Net Settlement,
the remainder will be retained in the Net Settlement Amount for distribution to thePAGA
Settlement Members.
Appointment 0f Settlement Administrator. In connection With a Joint Motion to the
Court for an Order Approving this Agreement (“Joint Motion”), the Parties will propose a
Settlement Administrator t0 distribute Settlement Shares and other payments due under the
Settlement; and otherwise administer the Settlement. In the event that the Settlement is not
approved, each Party will be reasonable for paying fifty (50%) percent of the Settlement
Administrator’s reasonable fees incurred as of that time. The Settlement Administrator, as
a condition 0f appointment, will agree to be bound by this Agreement with respect to the
performance of its duties and its compensation. The Settlement Administrator’s duties will
include preparing, printing, and mailing the lettert0 the PAGA Settlement Members;
conducting a National Change of Address search and using Accurint and other reasonable
and cost—effective skip trace methods to locate any PAGA Settlement Member whose letter
or Settlement Share was returned by the U.S. Postal Service as non—deliverable, and re-
mailing the letterand Settlement Share to the PAGA Settlement Member’s new address;
issuing the checks to effectuate the payments due under the Settlement; and otherwise
administering the Settlement pursuant to this Agreement. The Settlement Administrator’s
reasonable fees and expenses, including the cost 0f printing and mailing the letter, will be
paid out of the Total Settlement Amount.
Procedure for Approving Settlement.
1. Motion for an Order Approving the Settlement.
a. The Parties Will cooperate in seeking approval 0fthe Settlement, including
by drafting and filing the Joint Motion. The Parties further agree to fully
cooperate in the drafting and/or filing of any further documents reasonably
necessary t0 be prepared or filed and shall take all steps that may be
requested by the Court relating to the approval and implementation of the
Settlement. Plaintiff’sCounsel shall draft the JointMotion and provide
the draft to Defendant’s Counsel for review and revision at least three (3)
business days prior to the filing of the Joint Motion. Plaintiff’s Counsel
shall submit the Settlement Agreement and motion papers to the LWDA
no later than three (3) business days after theSettlement Agreement and
motion papers are filed with the Court.
b. At the hearing on the Joint Motion, the Parties will jointly appear, support
the granting 0f the motion, and submit an order granting the motion in the
form evidenced by Exhibit A to this Agreement.
c. The Parties will jointly file the Joint Motion. If the Court does not grant
the application for approval and issue an order approving the Settlement,
under the specific terms requested, the Parties agree to meet and confer to
address the Court’s concerns in good faith and determine whether
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resolution of the claims encompassed by the Settlement can be obtained in
a manner consistent with the Court’s concerns.
d. If the Court does not grant approval of the Settlement, or if the Court’s
final approval of the Settlement is reversed or materially modified on
appellate review, then the Settlement will become null and void. A
modification 0f amounts payable in attorneys” fees or expenses, amounts
payable as part of the Plaintiffs Incentive Payment, or amounts paid to the
Settlement Administrator for its fees and expenses shall not be deemed a
material modification of the Settlement.
No Right to Opt Out. The Parties agree that there is no statutory right for any PAGA
Settlement Member to opt out or otherwise exclude himself 0r herself from the Settlement.
Notice and Payment 0f Settlement Shares to PAGA Settlement Members. After the
Court enters its order granting the Joint Motion, every PAGA Settlement Member will be
provided with a letter concerning the Settlement (see Exhibit A) and payment 0f the PAGA
Settlement Member’s Settlement Share.
1. Consistent with the timeframes set forth in Section III.Q, the Settlement
Administrator will send each PAGA Settlement Member the letterand and
payment of the PAGA Settlement Member’s Settlement Share. The Settlement
Administrator will mail the lettersand Settlement Share payments to all identified
PAGA Settlement Members, using the mailing address information provided by
Defendant, unless modified by any updated address information that the
Settlement Administrator obtains during the course of administration of the
Settlement.
In the event of returned or non—deliverable letters and Settlement Share payments,
the Settlement Administrator will make reasonable efforts to locate PAGA
Settlement Members and re-send the letters and Settlement Share payments. The
Settlement Administrator Will promptly, and not later than fifteen (15) calendar
days from receipt of the returned packet and payment, search for a more current
address for the PAGA Settlement Member using Accurint and other reasonable
and cost—effective skip trace methods, and re-mail the letter and Settlement Share
payment to the PAGA Settlement Member. The Settlement Administrator will use
the PAGA Settlement Members’ data and otherwise work with Defendant to find
a more current address. The Settlement Administrator Will be responsible for
taking reasonable steps, consistent with its agreed—upon job parameters, court
orders, and fee, as agreed to with Plaintiffs Counsel and according t0 the following
deadlines, to trace the mailing address of anyPAGA Settlement Member for whom
a letter or Settlement Share payment is returned by the U.S. Postal Service as
undeliverable. These reasonable steps will include, at a minimum, the tracking of
allundelivered mail; performing address searches for all mail returned without a
forwarding address; and promptly re-mailing to PAGA Settlement Members for
whom new addresses are found. If the letter and Settlement Share payment is re-
mailed, the Settlement Administrator will note forits own records and notify
Plaintiff’sCounsel and Defendant’s Counsel of the date and address of each such
re-mailing as part of a weekly status report provided to the Parties. Plaintiffs
Counsel and Defendant’s Counsel Will be entitled t0 receive from the Settlement
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Administrator any updated address information about a PAGA Settlement Member
as the Settlement Administrator obtains such information.
Submission of Order. Plaintiff shall submit a copy of the order providing for or denying
an award 0f civil penalties to the LWDA within ten (10) calendar days after entry of the
dismissal and/or Order, in compliance with Section 2699(1)(3) of the California Labor
Code. If Plaintiff fails to satisfy this condition in strict compliance with Section 2699(1)(3)
of the California Labor Code, the Settlement shall be voidable at Defendant’s option.
Waiver of Right to Appeal. Provided that the Court’s approval of this Settlement is
consistent with the material terms of this Agreement, Plaintiff,Defendant, and their
respective counsel hereby waive any and all rights to appeal the final approval of the
Settlement, and the Order therefore will become non—appealable at the time it isentered.
If, forany reason an appeal is taken, the time for consummating the Settlement (including
making payments under the Settlement) will be suspended until such time as the appeal is
finally resolved and the Order becomes Final, as defined in this Agreement.
Timing of Settlement Payments and Receipt 0f Contact Information. Within five
(5) calendar days after theSettlement becomes Final, as defined in this Agreement, the
Settlement Administrator will provide Defendant with wire transfer information. Within
ten (10) calendar days after the next payroll cycle after the Settlement becomes Final,
Defendant will transfer the Total Settlement Amount to the Settlement Administrator Via
wire transfer. The amount 0f the Total Settlement Amount attributable to Plaintiff’s
counsel’s attorneys” fees and costs as well as the Incentive Payment will be disbursed t0
Plaintiffs counsel immediately. Also, within ten (10) calendar days after the next payroll
cycle of Defendant following Court approva1,, Defendant Will provide to the Settlement
Administrator the names, last known addresses and telephone numbers, and Social Security
numbers of all PAGA Settlement Group Members. This information will remain
confidential and will not be disclosed to anyone, except in order t0 carry out the reasonable
effofis described in Section HI.N.3, or pursuant to Defendant’s express written
authorization or by order of the Court. Payment shall be made to an interest bearing
account A11 interest accrued shall be payable t0 the State 0f California and the Aggrieved
Employees and added t0 the Net Settlement Amount. Payment shall be disbursed on a date
to be determined by the Court.
Uncashed Settlement Share Checks. A PAGA Settlement Member must receive or cash
his or her Settlement Share payment or check within 180 calendar days after it is mailed to
him or her. If a check is returned to the Settlement Administrator, the Settlement
Administrator will make all reasonable efforts to re-mail itt0 thePAGA Settlement Group
Member at his or her correct address in accordance with the procedures set forth in Section
III.N.2 above. If a PAGA Settlement Group Member cannot be located using the
procedures set forth inSection III.N.2 above, or if a PAGA Settlement Member fails to
cash the check for his or her Settlement Share Within 180 days after mailed t0 him or
it is
her, the Settlement Administrator Will distribute the funds represented by the uncashed
check to the California State Controllers’ Office Unclaimed Propefiy Fund.
Release and Waiver of Claims.
1. PAGA Settlement Members. In consideration for the LWDA Payment and the
PAGA Settlement Members’ awarded Settlement Shares, as of the date the
Settlement becomes Final, the LWDA and PAGA Settlement Members release any
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and all known and unknown claims under the PAGA against the Released Parties
that were or could have been pled based on the factual allegations 0f the Complaint,
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1 Carolyn H. Cottrell (SBN 166977) David C. Leimbach (SBN 265409) 2 SCHNEIDER WALLACE COTTRELL KONECKY LLP 3 2000 Powell Street, Suite 1400 Emeryville, California 94608 4 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 5 ccottrell@schneiderwallace.com dleimbach@schneiderwallace.com 6 7 Attorneys for Plaintiff Rachel Moniz, the State of California, and Aggrieved Employees 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SAN MATEO 11 RACHEL MONIZ, on behalf of the State of Case No. 17CIV01736 12 California and aggrieved employees, Assigned for All Purposes to 13 Plaintiff, Hon. Marie S. Weiner, Dept. 2 14 vs. DECLARATION OF DAVID C. LEIMBACH IN SUPPORT OF RENEWED 15 ADECCO USA, INC., and DOES 1-50, MOTION TO APPROVE SETTLEMENT inclusive, PURSUANT TO PRIVATE ATTORNEYS 16 GENERAL ACT OF 2004 Defendants. 17 Date: June 7, 2022 Time: 2:00 PM 18 Place: Dept. 2 19 Complaint Filed April 18, 2017 Trial Date: None Set 20 21 22 23 24 25 26 27 28 1 DECLARATION OF DAVID C. LEIMBACH IN SUPPORT OF RENEWED MOTION TO APPROVE SETTLEMENT PURSUANT TO PRIVATE ATTORNEYS GENERAL ACT OF 2004 1 DECLARATION OF DAVID C. LEIMBACH 2 I, David C. Leimbach, hereby declare as follows: 3 1. I am an attorney duly licensed to practice law in the State of California. I am a member in 4 good standing of the State Bar of California, I am admitted to the United States District Courts for the Northern, Eastern, Central, and Southern Districts of California. I am admitted to the Ninth Circuit Court of 5 Appeals, and I am a member of the Bar of the United States Supreme Court. 6 2. I am a partner at Schneider Wallace Cottrell Konecky LLP (“SWCK”). SWCK specializes 7 in class action and Private Attorneys General Act of 2004 (“PAGA”) litigation in state and federal court. 8 3. SWCK represents Plaintiff Rachel Moniz on behalf of the State of California and 9 Aggrieved Employees (“Moniz”). Plaintiffs’ Counsel have prosecuted the above-captioned consolidated 10 action filed against Defendant Adecco USA, Inc. 11 4. I submit this declaration in support of Plaintiffs’ Renewed Motion to Approve Settlement Pursuant to Private Attorneys General Act of 2004 in this Action. I have been actively involved in the 12 prosecution of this PAGA Action since prior to filing the complaint. I am familiar with the file, the 13 documents, and the history related to this Action. The following statements are based on my personal 14 knowledge and review of the files. If called to do so, I could and would testify competently thereto. 15 5. The Settlement Agreement of Representative Action Under Labor Code Private Attorneys 16 General Act (the “Settlement”) is the subject of this motion resolves this action. A true and correct copy of 17 the Settlement is attached hereto as Exhibit 1. 18 6. On May 13, 2019, Plaintiff filed a Memorandum of Points and Authorities in Support of Joint Motion to Approve Settlement Pursuant to Private Attorneys General Act of 2004. A true and correct 19 copy of the Settlement is attached hereto as Exhibit 2. 20 7. On May 13, 2019, Plaintiff filed a Declaration of Carolyn Hunt Cottrell in Support of Joint 21 Motion to Approve Settlement Pursuant to Private Attorneys General Act of 2004. A true and correct copy 22 of the Settlement is attached hereto as Exhibit 3. 23 8. On May 13, 2019, Plaintiff filed a Declaration of Rachel Moniz in Support of Joint Motion 24 to Approve Settlement Pursuant to Private Attorneys General Act of 2004. A true and correct copy of the 25 Settlement is attached hereto as Exhibit 4. 9. On May 14, 2019, Plaintiff filed a Memorandum of Points and Authorities in Support of 26 Joint Motion to Approve Settlement Pursuant to Private Attorneys General Act of 2004. A true and correct 27 copy of the Settlement is attached hereto as Exhibit 5. 28 10. On May 14, 2019, Plaintiff filed a Declaration of Carolyn Hunt Cottrell in Support of Joint 2 DECLARATION OF DAVID C. LEIMBACH IN SUPPORT OF RENEWED MOTION TO APPROVE SETTLEMENT PURSUANT TO PRIVATE ATTORNEYS GENERAL ACT OF 2004 1 Motion to Approve Settlement Pursuant to Private Attorneys General Act of 2004. A true and correct copy 2 of the Settlement is attached hereto as Exhibit 6. 11. On May 14, 2019, Plaintiff filed a Declaration of Rachel Moniz in Support of Joint Motion 3 to Approve Settlement Pursuant to Private Attorneys General Act of 2004. A true and correct copy of the 4 Settlement is attached hereto as Exhibit 7. 5 12. On May 15, 2019, Plaintiff filed an Amended Declaration of Carolyn Hunt Cottrell in 6 Support of Joint Motion to Approve Settlement Pursuant to Private Attorneys General Act of 2004. A true 7 and correct copy of the Settlement is attached hereto as Exhibit 8. 8 13. On June 16, 2019, Plaintiff filed a Declaration of Kyle G. Bates in Support of Approve of 9 PAGA Settlement in the above-captioned case. A true and correct copy of the Settlement is attached hereto as Exhibit 9. 10 14. On July 2, 2019, Plaintiff filed a declaration of Kyle G. Bates in support of Approve of 11 PAGA Settlement in the above-captioned case. A true and correct copy of the Settlement is attached hereto 12 as Exhibit 10. 13 15. On November 22, 2019, the court issued an order granting Approval of PAGA Settlement. 14 A true and correct copy of the Settlement is attached hereto as Exhibit 11. 15 16. On January 15, 2020, the court issued an order granting Plaintiff’s Attorney Fees, Cost, and 16 Incentive Awards. A true and correct copy of the Settlement is attached hereto as Exhibit 12. 17. On November 30,2021, the Court of Appeals of the State of California, First Appellate 17 District published an Opinion reversing the Judgment. A true and correct copy of the opinion is attached 18 hereto as Exhibit 13. 19 18. To date, SWCK’s costs and expenses—costs that would be normally billed to a fee-paying 20 client—consist of copying, printing, court fees, courier fees, filings and service of process, court reporters, 21 transcripts, depositions, delivery and messengers, postage and mailings, research services and document 22 retrieval, travel-related costs and expenses, and mediator fees are $45,114.34. A true and correct copy of the 23 bill summary is attached hereto as Exhibit 14. 19. Plaintiff’s counsel’s attorneys’ fees, not including at least some time spent on this motion, 24 are $1,264,634.00. A true and correct copy of the bill summary is attached hereto as Exhibit 15. 25 20. A true and correct copy of the Volume 1, AA0087-90, the Employment Agreement for 26 Colleagues in California is attached hereto as Exhibit 16. 27 21. A true and correct copy of the Volume 2, AA1260-61, Employee Acknowledgement and 28 Non-Disclosure Agreement is attached hereto as Exhibit 17. 3 DECLARATION OF DAVID C. LEIMBACH IN SUPPORT OF RENEWED MOTION TO APPROVE SETTLEMENT PURSUANT TO PRIVATE ATTORNEYS GENERAL ACT OF 2004 1 22. A true and correct copy of the Volume 2, AA1270-71, Relevant Excerpts from Adecco 2 Employee Handbook is attached hereto as Exhibit 18. 3 I declare under penalty of perjury under the laws of the State of California that the foregoing is true 4 and correct. Executed this 11th day of May, 2022, at San Francisco, California. 5 6 7 David C. Leimbach 8 Attorney for Plaintiff Rachel Moniz, 9 the State of California, and Aggrieved Employees 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DECLARATION OF DAVID C. LEIMBACH IN SUPPORT OF RENEWED MOTION TO APPROVE SETTLEMENT PURSUANT TO PRIVATE ATTORNEYS GENERAL ACT OF 2004 EXHIBIT 1 SETTLEMENT AGREEMENT This Settlement Agreement is made by and between: (a) Plaintiff Rachel Moniz (“Plaintiff’),on behalf ofherself, other aggrieved employees, and the State of California, on the one hand; and (b) Defendant Adecco USA, Inc. (“Defendant”) on the other hand, subj ect to the approval of the Court in accordance with California Labor Code section 2699(1)(2), and subject to the following terms and conditions. I. DEFINITIONS Unless otherwise defined in this Agreement, the following tenns used in this Agreement shall have the meanings ascribed t0 them as set forth below: A. “Action” means the civil action titled Rachel Moniz v. Adecco USA, Ina, filed in the Superior Court of the State of California, County of San Mateo, Case No. 17CIV01736. “Agreement,” “Settlement,” or “Settlement Agreement” means this Settlement Agreement. “Complaint” means the operative Complaint filed in the Action. {550W “Court” means the Superior Court for the State 0f California County of San Mateo. “Covered Period” means the period of time from February 1,2016 t0 the date the Court grants approval of the Settlement. 711 “Defendant” means Adecco USA, Inc. “Defendant’s Counsel” means the law firm 0f Jackson Lewis P.C. “Final” means: (1) that the Settlement has been finally approved by the Court with no objections (including objections by Plaintiff or Plaintiffs Counsel as to the award of incentive payments 0r attorney’s fees, which must be made within fifteen (15) days of the order or are otherwise waived); 0r (2) if there are obj actions, either (a) the California Court 0f Appeal has rendered a final judgment affirming the Court’s final approval Without material modification and the date for further appeal has passed without further appeal; or (b) the applicable date for seeking appellate review of the Court’s final approval 0f the Settlement has passed Without a timely appeal or request for review having been made. “Order” means the Order Granting Approval of Settlement. The flames will submit a proposed Order in the form evidenced by Exhibit A to this Agreement for consideratiOn by the Court. “PAGA” means Califomia’s Labor Code Private Attorneys General Act, Cal. Lab. Code § 2699, et seq. “Parties” means Plaintiff and Defendant collectively. “LWDA” means the California Labor and Workforce Development Agency. “LWDA Payment” means the portion of the payment from the Net Settlement Amount to be paid to the LWDA under the Settlement Agreement. “Net Settlement Amount” means the amount from the Total Settlement Amount that is available for distribution for the LWDA Payment and for Settlement Shares to the PAGA Settlement Members after deducting (1) Plaintiff’sCounsel’s attorney’s fees and costs (the amount ofwhich is subj ect t0 Court approval); (2) the Settlement Administrator’s fees and expenses (the amount of which is subject to Court approval); and (3) Plaintiffs Incentive Payment (the amount of which is subj ect to Court approval). The Net Settlement Amount will be distributed to the LWDA and PAGA Settlement Members in payment of PAGA penalties. “PAGA Settlement Members” means cunent and former employees of Defendant who worked as an Associate or Colleague in California at any point during the Covered Period. “Plaintiff”means Plaintiff Rachel Moniz. “Plaintiffs Counsel” means the law firm of Schneider Wallace Cottrell Konecky Wotkyns LLP. “Released Claims” means any and allknown and unknown claims under the PAGA against the Released Parties that were or could have been pled based 0n the factual allegations 0f the Complaint, including but not limited to Plaintiffs allegation that Defendant unlawfully prohibited current and fotmer employees from: (1) disclosing certain information including but not limited to salary, benefits, wages, identities of other employees, training and operations methods, and office protocols and systems and programs and systems; (2) discussing the wages of others, engaging in whistleblower activity, or disclosing or discussing their working conditions. This includes, but is not limited to, claims for Violation 0f California Labor Code sections 232, 232.5, 432.51 102.5, 1197.5(k), and, 2699 et seq., CaliforniaBusiness and Professions section 17200 et seq, 18 U.S.C. section 1833, and 17 CFR 240.21F-17. “Released Parties” means Defendant and any of its present and former parents, subsidiaries and affiliated companies or entities,and their respective officers, directors, employees, partners, shareholders and agents, as well as any other successors, assigns and legal representatives and their related persons and entities. “Settlement Administrator” means the third-pany administrator selected by Plaintiff and approved by the Court to administer this Settlement. ~ “Settlement Share” means the portion of the Net Settlement Amount allocable to each PAGA Settlement Member as provided by this Agreement. V. “Total Settlement Amount” means the total amount to be paid by Defendant as provided by thisAgreement. II. FACTUAL BACKGROUND A. On April 18, 2017, Plaintiff filed this Action against Defendant, alleging inter alia that Defendant’s confidentiality and non—disclosure provisions prohibited employees from disclosing their own wages, discussing the wages of others, engaging in whistleblowing activity,and disclosing 0r discussing their working conditions in Violation of California Labor Code sections 232, 1197.5(k), 232.5, 1102.5, and 432.5, California Business and Professions section 17200 et seq.,18 U.S.C. section 1833, and 17 CFR 240.21F-17. As 20f12 relief,Plaintiff seeks to recover civil penaltiesunder PAGA 0n behalf of herself, other aggrieved employees, and the State of California. Plaintiff submitted a letter to the LWDA on February 1, 2017, regarding the allegations above and Plaintiffs intention to file a civil action unless the LWDA elected to investigate the allegations on its own. The LWDA did not indicate an intention t0 investigate the allegations on itsown within the applicable statutory time period. The Parties participated in mediation with David Rotman, a highly respected mediator in employment law, on January 10, 2019, and January 21, 2019. Following the January 21 mediation, Mr. Rotman made a mediator’s proposal, which the Parties accepted and which serves as {he basis for this Agreement. This Agreement represents a full compromise and settlement of highly disputed claims. Nothing in this Agreement is intended or will be construed as an admission by Defendant that Plaintiff‘s claims in the Action have merit or that Defendant has any liabilityto Plaintiff or any of the PAGA Settlement Members. Nor is this Agreement an admission by Plaintiff that Defendant’s defenses in the Action have merit. III. SETTLEMENT TERMS AND CONDITIONS A. Stipulation of Dismissal for Settlement. Subj ect t0 the terms 0f this Agreement, Plaintiff Will stipulate to the dismissal of this Action with prejudice. Representation Regarding PAGA Settlement Members. Defendant represents that the PAGA Settlement Members consist of approximately 61,637 individuals, which Defendant represents are allof Defendants’ California employees from Febmary 1, 2016 through March 24, 2019. Total Settlement Amount. The Total Settlement Amount isfour million five—hundred thousand dollars ($4,500,000). The Total Settlement Amount will cover: (a) all payments to PAGA Settlement Members pursuant to the Settlement (described in Section HLG-H); (b) theLWDA Payment set forth in Section 111.]; (c) Plaintiffs attorneys’ fees, costs, and expenses (which includes all such fees and costs incurred to date, as well as all such fees and costs incurred in documenting the settlement, securing Court approval of the Settlement including any and all motions related thereto, and obtaining a dismissal of the claims encompassed by this Agreement) (described in Section HLE); (d) the Incentive Payment to Plaintiff set forth in Section HLF; and (e) the Settlement Administrator’s fees and expenses set forth in Section111.1. Additional Consideration. As additional consideration for this Settlement and as a direct result 0f this Settlement, Defendant agrees to revise its Colleague Agreement and Associate Agreement and related policies which allegedly limitemployees from disclosing theirown salary, wages, benefits and related working conditions; and/or from discussing same with others; and/or from engaging in whistleblowing activity. Defendant does not concede said agreements and policies do so, and this additional consideration is not in any way t0 be construed as an admission by Defendant. Attorneys’ Fees and Litigation Costs. Defendant will not oppose an application by Plaintiff for attorneys’ fees inan amount that does not exceed 33% of the Total Settlement Amount ($1,500,000). Defendant will also not oppose an application by Plaintiff for up to 30f12 $45,000 in litigation costs. IRS Forms 1099 and state and local equivalents will be issued to Plaintiffs Counsel for any awarded attorneys’ fees and costs. Plaintiff’s Counsel Will not seek, or be entitled to any attorneys’ fees and/or expenses related to the claims and allegations in this Action, other than those specified in this Agreement. Plaintiff’s counsel, and no other counsel, were involved in the negotiations leading to this settlement and no other counsel’s work contributed to the negotiation or crafting of this Agreement. Plaintist Counsel’s sole efforts, and no others“,helped to create, discover, increase and preserve the PAGA Settlement Members recovery in this Action. Incentive Payment. Plaintiffs Counsel will request, and Defendant Will not oppose, an incentive payment to Plaintiff from the Total Settlement Amount in an amount not t0 exceed $20,000. This incentive payment shall be in addition to Whatever payment Plaintiff is otherwise entitled toas a PAGA Settlement Member. Plaintiff will be issued an IRS Form 1099 and its state and local equivalents for any incentive payment amount received under the Settlement. Should the Court award less than $20,000 for the Incentive Payment, Plaintiff agrees that (a) she will accept the Court’s ruling; and (b) an award 0f less than $20,000 for the Incentive Payment does not serve as a basis for appeal or otherwise affect the implementation of this Agreement per Section III.Q below. Settlement Shares. Subject to the terms and conditions of this Agreement, each PAGA Settlement Member will be allocated a Settlement Share from 25% of the Net Settlement Amount; the remainder of the Net Settlement Amount shall be paid to the LWDA as part of the LWDA Payment. The Settlement Share is intended to settle claims for PAGA civil penalties. Accordingly, the payments to PAGA Settlement Members will not be reduced by payroll tax withholding and deductions; instead, the Settlement Administrator will is sue to the PAGA Settlement Members IRS Form 1099s and their state and local equivalents with respect to the payments. Distribution 0f Settlement Shares t0 PAGA Settlement Members. After deducting the amounts for the LWDA Payment, the remainder of the Net Settlement Amount will be paid as Settlement Shares to each PAGA Settlement Member. The portion ofthe Net Settlement Amount available for distribution to PAGA Settlement Group Members (25% of the Net Settlement Amount) Willbe divided as follows: $627,660.00, 0r 88% ofthe Net Settlement Amount, will be paid t0 the Associates (with an estimated per—person payment of $10.27) and $85,590, or 12% ofthe Net Settlement Amount (with an estimated per-person payment of $ 1 5 7. 92). Additional Amounts For Additional Aggrieved Employees. The Patties agree that, in exchange for the scope of the Released Claims extending from February 1, 2016 through the date that the Parties’ Settlement is approved by the Court, Adecco will increase the Total Settlement Amount by $41.08 per each additional Associate added to PAGA Settlement Members and by $631.68 per each additional Colleague added t0 PAGA Settlement Members (75% of which will go to the State 0f California and 25% of which will g0 to the individual PAGA Settlement Member) (which is the per-person share of the Total Settlement Amount based 0n the total number of existing aggrieved employees) for each additional aggrieved employee that is employed between March 24, 2019 and the date that the Parties’Settlement is approved by the Court. The number 0f aggrieved employees shall not increase following the Court’s approval of the Settlement Agreement. Payments to Settlement Administrator. The Settlement Administrator will pay itself out 0f the Total Settlement Amount itsreasonable fees and expenses, as approved by the Court. 40f12 The Settlement Administrator’s reasonable fees and expenses shall not exceed $100,000.00. LWDA Payment. The Settlement Administrator will pay 75% of the Net Settlement Amount to the LWDA as itsshare of the Settlement attributable to civil penalties under PAGA. If the Court approves an LWDA Payment of less than 75% of the Net Settlement, the remainder will be retained in the Net Settlement Amount for distribution to thePAGA Settlement Members. Appointment 0f Settlement Administrator. In connection With a Joint Motion to the Court for an Order Approving this Agreement (“Joint Motion”), the Parties will propose a Settlement Administrator t0 distribute Settlement Shares and other payments due under the Settlement; and otherwise administer the Settlement. In the event that the Settlement is not approved, each Party will be reasonable for paying fifty (50%) percent of the Settlement Administrator’s reasonable fees incurred as of that time. The Settlement Administrator, as a condition 0f appointment, will agree to be bound by this Agreement with respect to the performance of its duties and its compensation. The Settlement Administrator’s duties will include preparing, printing, and mailing the lettert0 the PAGA Settlement Members; conducting a National Change of Address search and using Accurint and other reasonable and cost—effective skip trace methods to locate any PAGA Settlement Member whose letter or Settlement Share was returned by the U.S. Postal Service as non—deliverable, and re- mailing the letterand Settlement Share to the PAGA Settlement Member’s new address; issuing the checks to effectuate the payments due under the Settlement; and otherwise administering the Settlement pursuant to this Agreement. The Settlement Administrator’s reasonable fees and expenses, including the cost 0f printing and mailing the letter, will be paid out of the Total Settlement Amount. Procedure for Approving Settlement. 1. Motion for an Order Approving the Settlement. a. The Parties Will cooperate in seeking approval 0fthe Settlement, including by drafting and filing the Joint Motion. The Parties further agree to fully cooperate in the drafting and/or filing of any further documents reasonably necessary t0 be prepared or filed and shall take all steps that may be requested by the Court relating to the approval and implementation of the Settlement. Plaintiff’sCounsel shall draft the JointMotion and provide the draft to Defendant’s Counsel for review and revision at least three (3) business days prior to the filing of the Joint Motion. Plaintiff’s Counsel shall submit the Settlement Agreement and motion papers to the LWDA no later than three (3) business days after theSettlement Agreement and motion papers are filed with the Court. b. At the hearing on the Joint Motion, the Parties will jointly appear, support the granting 0f the motion, and submit an order granting the motion in the form evidenced by Exhibit A to this Agreement. c. The Parties will jointly file the Joint Motion. If the Court does not grant the application for approval and issue an order approving the Settlement, under the specific terms requested, the Parties agree to meet and confer to address the Court’s concerns in good faith and determine whether 50f12 resolution of the claims encompassed by the Settlement can be obtained in a manner consistent with the Court’s concerns. d. If the Court does not grant approval of the Settlement, or if the Court’s final approval of the Settlement is reversed or materially modified on appellate review, then the Settlement will become null and void. A modification 0f amounts payable in attorneys” fees or expenses, amounts payable as part of the Plaintiffs Incentive Payment, or amounts paid to the Settlement Administrator for its fees and expenses shall not be deemed a material modification of the Settlement. No Right to Opt Out. The Parties agree that there is no statutory right for any PAGA Settlement Member to opt out or otherwise exclude himself 0r herself from the Settlement. Notice and Payment 0f Settlement Shares to PAGA Settlement Members. After the Court enters its order granting the Joint Motion, every PAGA Settlement Member will be provided with a letter concerning the Settlement (see Exhibit A) and payment 0f the PAGA Settlement Member’s Settlement Share. 1. Consistent with the timeframes set forth in Section III.Q, the Settlement Administrator will send each PAGA Settlement Member the letterand and payment of the PAGA Settlement Member’s Settlement Share. The Settlement Administrator will mail the lettersand Settlement Share payments to all identified PAGA Settlement Members, using the mailing address information provided by Defendant, unless modified by any updated address information that the Settlement Administrator obtains during the course of administration of the Settlement. In the event of returned or non—deliverable letters and Settlement Share payments, the Settlement Administrator will make reasonable efforts to locate PAGA Settlement Members and re-send the letters and Settlement Share payments. The Settlement Administrator Will promptly, and not later than fifteen (15) calendar days from receipt of the returned packet and payment, search for a more current address for the PAGA Settlement Member using Accurint and other reasonable and cost—effective skip trace methods, and re-mail the letter and Settlement Share payment to the PAGA Settlement Member. The Settlement Administrator will use the PAGA Settlement Members’ data and otherwise work with Defendant to find a more current address. The Settlement Administrator Will be responsible for taking reasonable steps, consistent with its agreed—upon job parameters, court orders, and fee, as agreed to with Plaintiffs Counsel and according t0 the following deadlines, to trace the mailing address of anyPAGA Settlement Member for whom a letter or Settlement Share payment is returned by the U.S. Postal Service as undeliverable. These reasonable steps will include, at a minimum, the tracking of allundelivered mail; performing address searches for all mail returned without a forwarding address; and promptly re-mailing to PAGA Settlement Members for whom new addresses are found. If the letter and Settlement Share payment is re- mailed, the Settlement Administrator will note forits own records and notify Plaintiff’sCounsel and Defendant’s Counsel of the date and address of each such re-mailing as part of a weekly status report provided to the Parties. Plaintiffs Counsel and Defendant’s Counsel Will be entitled t0 receive from the Settlement 60f12 Administrator any updated address information about a PAGA Settlement Member as the Settlement Administrator obtains such information. Submission of Order. Plaintiff shall submit a copy of the order providing for or denying an award 0f civil penalties to the LWDA within ten (10) calendar days after entry of the dismissal and/or Order, in compliance with Section 2699(1)(3) of the California Labor Code. If Plaintiff fails to satisfy this condition in strict compliance with Section 2699(1)(3) of the California Labor Code, the Settlement shall be voidable at Defendant’s option. Waiver of Right to Appeal. Provided that the Court’s approval of this Settlement is consistent with the material terms of this Agreement, Plaintiff,Defendant, and their respective counsel hereby waive any and all rights to appeal the final approval of the Settlement, and the Order therefore will become non—appealable at the time it isentered. If, forany reason an appeal is taken, the time for consummating the Settlement (including making payments under the Settlement) will be suspended until such time as the appeal is finally resolved and the Order becomes Final, as defined in this Agreement. Timing of Settlement Payments and Receipt 0f Contact Information. Within five (5) calendar days after theSettlement becomes Final, as defined in this Agreement, the Settlement Administrator will provide Defendant with wire transfer information. Within ten (10) calendar days after the next payroll cycle after the Settlement becomes Final, Defendant will transfer the Total Settlement Amount to the Settlement Administrator Via wire transfer. The amount 0f the Total Settlement Amount attributable to Plaintiff’s counsel’s attorneys” fees and costs as well as the Incentive Payment will be disbursed t0 Plaintiffs counsel immediately. Also, within ten (10) calendar days after the next payroll cycle of Defendant following Court approva1,, Defendant Will provide to the Settlement Administrator the names, last known addresses and telephone numbers, and Social Security numbers of all PAGA Settlement Group Members. This information will remain confidential and will not be disclosed to anyone, except in order t0 carry out the reasonable effofis described in Section HI.N.3, or pursuant to Defendant’s express written authorization or by order of the Court. Payment shall be made to an interest bearing account A11 interest accrued shall be payable t0 the State 0f California and the Aggrieved Employees and added t0 the Net Settlement Amount. Payment shall be disbursed on a date to be determined by the Court. Uncashed Settlement Share Checks. A PAGA Settlement Member must receive or cash his or her Settlement Share payment or check within 180 calendar days after it is mailed to him or her. If a check is returned to the Settlement Administrator, the Settlement Administrator will make all reasonable efforts to re-mail itt0 thePAGA Settlement Group Member at his or her correct address in accordance with the procedures set forth in Section III.N.2 above. If a PAGA Settlement Group Member cannot be located using the procedures set forth inSection III.N.2 above, or if a PAGA Settlement Member fails to cash the check for his or her Settlement Share Within 180 days after mailed t0 him or it is her, the Settlement Administrator Will distribute the funds represented by the uncashed check to the California State Controllers’ Office Unclaimed Propefiy Fund. Release and Waiver of Claims. 1. PAGA Settlement Members. In consideration for the LWDA Payment and the PAGA Settlement Members’ awarded Settlement Shares, as of the date the Settlement becomes Final, the LWDA and PAGA Settlement Members release any 70f12 and all known and unknown claims under the PAGA against the Released Parties that were or could have been pled based on the factual allegations 0f the Complaint,