Preview
1 COHELAN KHOURY & SINGER
Michael D. Singer (SBN 115301)
2 msinger@ckslaw.com
Diana M. Khoury (SBN 128643) ELECTRONICALLY
3
dkhoury@ckslaw.com F I L E D
Superior Court of California,
4 Marta Manus (SBN 260132) County of San Francisco
mmanus@ckslaw.com
5 05/08/2020
605 “C” Street, Suite 200 Clerk of the Court
San Diego, CA 92101 BY: EDNALEEN ALEGRE
6 Deputy Clerk
Tel: (619) 595-3001/Fax: (619) 595-3000
7 LEBE LAW, APLC
Jonathan M. Lebe (SBN 284605)
8 jon@lebelaw.com
777 S. Alameda Street, Second Floor
9
Los Angeles, CA 90021
10 Tel: (213) 358-7046
11 Attorneys for Plaintiff Amie Pfeifer, on behalf of herself, and all other
similarly-situated and aggrieved employees
12
13 SUPERIOR COURT OF CALIFORNIA
COHELAN KHOURY & SINGER
14 COUNTY OF SAN FRANCISCO
605 C Street, Suite 200
San Diego, CA 92101
15 AMIE PFEIFER, on behalf of herself Case No. CGC-19-574570
and all other similarly-situated and aggrieved ASSIGNED FOR ALL PURPOSES TO:
16 employees, The Honorable Anne-Christine Massullo
Department 304
17 Plaintiffs,
18 CLASS AND REPRESENTATIVE ACTION
19 v. DECLARATION OF ISAM C. KHOURY IN
SUPPORT OF MOTION FOR ORDER
20 ZESTY, INC., a Delaware Corporation; and GRANTING PRELIMINARY APPROVAL
DOES 1 through 100, Inclusive, OF CLASS ACTION SETTLEMENT
21
22 Date: June 11, 2020
Defendants. Time: 9:15 a.m.
23 Dept: 304
Judge: Hon. Anne-Christine Massullo
24
Filed: March 15, 2019
25
Trial date: Not set
26
27
28
Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement
Case No. CGC-19-574570
1 I, Isam C, Khoury, declare as follows:
2 1. I am a Partner with the law firm of Cohelan Khoury & Singer, co-counsel of record
3 for Plaintiff Amie Pfeifer. I am a member in good standing of the State Bar of California. I make
4 this Declaration in support of Plaintiff’s Motion for Preliminary Approval of Class Action
5 Settlement. This Declaration is based on my personal knowledge and ifcalled to testify I could
6 and would competently testify to the matters contained in this Declaration.
7 2. I am a 1973 Hastings School of Law graduate and was admitted to the California
8 State Bar in 1974 and am admitted to practice in all state courts in California and in the all federal
9 courts in California, as well as the First Circuit Court of the State of Hawaii and the United States
10 Court of Appeals for Sixth Circuit.
11 3. In 1981, Timothy D. Cohelan and I formed Cohelan & Khoury, a Partnership of
12 Professional Law Corporations, and within a few years began to focus on class actions. In 2009,
13 Cohelan & Khoury became Cohelan Khoury & Singer. Our firm represents plaintiffs in complex,
COHELAN KHOURY & SINGER
14 class and representative action litigation, including wage and hour, labor and employment,
605 C Street, Suite 200
San Diego, CA 92101
15 antitrust, consumer protection, construction defect and other public interest type class and
16 representative actions. Attached as Exhibit D is a copy of my firm’s curriculum vitae.
17 4. I, along with Partner Diana M. Khoury have been selected by our peers based on
18 ethics, experience and reputation as Super Lawyers in Civil Litigation by the Southern California
19 Super Lawyers Magazine for the years 2010 through 2018. Michael D. Singer, Managing Partner,
20 was named to the Daily Journal 2012, 2013, and 2018 list of Top California Labor and
21 Employment Attorneys and selected to the Southern California Super Lawyers in 2010, 2012-
22 2019. I am AV rated by Martindale-Hubbell, as are many attorneys in our firm.
23 5. Cohelan Khoury & Singer has been certified by the State Bar of California to
24 provide the Mandatory Continuing Legal Education activity entitled “Litigating California Class
25 Actions” and has conducted MCLE certified seminars on this topic. Senior Partner, Timothy D.
26 Cohelan, is the author of Cohelan on California Class Actions (1997-2020, updated annually),
27 part of Thomson Reuters Expert Series. Managing Partner, Michael D. Singer, is a contributing
28 author on the CEB publication California Wage and Hour Law: Compliance and Litigation (2010-
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Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement
Case No. CGC-19-574570
1 2020, updated annually), in which he wrote the opening chapter overview on California Wage and
2 Hour laws, including the public policy underpinnings for those laws, and the PAGA Claim
3 chapter. Mr. Singer has served as a columnist for the California State Bar, Litigation Section on
4 wage and hour litigation and has contributed articles on wage and hour and class action issues
5 through the years to numerous California publications. Mr. Singer typically lectures several times
6 per year for continuing education courses on wage and hour and class action issues at events in
7 San Diego, Orange County, Los Angeles, and San Francisco. Mr. Singer regularly contributes
8 amicus curiae briefs on class action and employment issues in the California Supreme Court and
9 Courts of Appeal. In his capacity as Amicus lesion for California Employment Lawyers
10 Association, he coordinated, drafted or co-drafted amicus letters and briefs on a wide range of
11 labor law issues in the rapidly developing decisional law, supporting Review in the Supreme
12 Court, and publication or depublication of Court of Appeal decisions. He has been engaged in the
13 practice of labor and employment law since 2000, handling well over 200 wage and hour class
COHELAN KHOURY & SINGER
14 actions and several individual labor cases, and has litigated several types of employment actions,
605 C Street, Suite 200
San Diego, CA 92101
15 including complex ERISA employee welfare benefit plan cases, as well as wage and hour class
16 actions before Federal and State Courts in California. In 2014, Mr. Singer and J. Jason Hill tried a
17 wage and hour class action involving claims for illegally deducted wages and unreimbursed
18 expenses in the matter of Dilts v Penske Logistics LLC, Inc. We successfully appealed the trial
19 court ruling in Dilts finding state laws preempted by the FAAAA for truck drivers. Mr. Singer has
20 participated in over 50 appellate cases and argued writs and appeals before several California
21 District Courts of Appeal, arguing for plaintiffs on rehearing in Brinker International Inc. v.
22 Superior Court before the Fourth District Court of Appeal, as well as federal appeals in the
23 Second, Third, and Ninth Circuit Courts of Appeals. In addition, Mr. Singer has drafted numerous
24 appellate briefs as the appellant, respondent, or amicus curiae in employment class and individual
25 actions. As co-Class Counsel in Brinker Restaurant Corp. v. Superior Court [formerly reported at
26 (2008)165 Cal.App.4th 25], Mr. Singer argued before the Fourth District Court of Appeal in May
27 2008 on transfer from the California Supreme Court, and co-authored the successful Petition for
28 Review. My firm has successfully tried class cases, obtained appellate reversals of class
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Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement
Case No. CGC-19-574570
1 certification denials (Hicks v. Kaufman and Broad, (2001) 89 Cal.App.4th 908), certified multiple
2 wage and hour class.
3 6. As a part of our overall firm philosophy our lawyers are active in bar association
4 activities, perform community service and do pro bono work. Firm volunteer work includes
5 service through the Legal Aid at Work, San Diego Volunteer Lawyer Program, the San Diego
6 County Bar Foundation and Consumer Attorneys of San Diego. For instance, Mr. Singer has
7 served on the Legal Aid at Work Board of Directors since 2011. Mr. Cohelan served as the Chair
8 of the San Diego Volunteer Lawyers Program from 2015-2018, and currently sits on the Board as
9 past Chair. He completed 24 years of volunteer judicial service as a Judge Pro Tem of the San
10 Diego Superior Court, and Diana M. Khoury has served on the San Diego County Bar
11 Foundation’s (SDCBF) Board of Directors since 2013. SDCBF is the 501(c)(3) charitable arm of
12 the San Diego County Bar Association. Since admission to the California State Bar, Partner
13 Diana M. Khoury has been a member of the San Diego County Bar Association, Consumer
COHELAN KHOURY & SINGER
14 Attorneys of San Diego, Consumer Attorneys of California, and American Association for Justice
605 C Street, Suite 200
San Diego, CA 92101
15 serving on numerous committees through the years for these organizations. For six years from
16 2010 through 2015, Ms. Khoury served on the Board of Directors for Consumer Attorneys of San
17 Diego, serving as chair of numerous committees. Our firm’s recent pro bono victories include a
18 settlement which prohibits the City of San Diego from targeting homeless people for illegal
19 lodging tickets under Penal Code Section 467(j). (Spencer v. City of San Diego, USDC Case No
20 04CV-2314 BEN (WMC).) The Spencer settlement had the effect of increasing the number of
21 available shelter beds in the City of San Diego.
22 7. Cohelan Khoury & Singer has been appointed certified Class Counsel in the
23 following contested proceedings: Aguilar v. Atlantic Richfield, et al., San Diego Superior Court
24 Case No. 00700810; Andino v. Kaiser Foundation Hospitals, Alameda Superior Court Case No.
25 RG11580548; Arellano, et al. v. Container Connection of Southern California, Inc., Los Angeles
26 Superior Court Case No. BC500675; BANK OF AMERICA WAGE AND HOUR EMPLOYMENT
27 PRACTICES LITIGATION, United States District Court, District of Kansas MDL Case No. 2138
28 (FLSA Condition Certification); Czuchaj v. Conair Corporation, United States District Court,
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Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement
Case No. CGC-19-574570
1 Southern District of California Case No. 13CV1901; Dilts, et al. v. Penske Logistics, L.L.C., et
2 al., United States District Court, Southern District of California Case No. 08CV0318; Englert, et
3 al. v. AT&T Wireless Services, Inc., et al.,Circuit Court of the Second Circuit, State of Hawaii
4 Case No. 02-1-0074; Evans v. Washington Mutual Bank, Orange County Superior Court Case No.
5 02CC15415; Filion v. Ethan Allen Retail Inc., United States District Court, Southern District of
6 California Case No. 05CV2340; Gerard v. Les Schwab Tire Centers of California, Inc.,
7 Sacramento Superior Court Case No. 2007-30000003; Grana, et al. v. PICO Enterprises, Inc. dba
8 Phyle Inventory Control Specialist and PICS L.A.S.C. Case No. BC472891; Gutierrez v. Save
9 Mart Supermarkets San Mateo Superior Case No. CIV530955; Wilcox v Albertsons, San Diego
10 Superior Court Case No. GIC833922; Gonzalez, et al. v. Freedom Communications, Inc. d/b/a
11 The Orange County Register, Orange County Superior Court Case No. 03CC08756; Graham, et
12 al. v. Overland Solutions, Inc., United States District Court, Southern District of California Case
13 No. 10CV0672 (FLSA Conditional Certification); Hicks v. Kaufman and Broad Home Corp., Los
COHELAN KHOURY & SINGER
14 Angeles Superior Court Case No. B198414; Hohnbaum, et al. v. Brinker Restaurant Corporation,
605 C Street, Suite 200
San Diego, CA 92101
15 et al., San Diego Superior Court Case No. GIC834348; KEMP, et al. v. CSEA, et al., Circuit
16 Court of the First Circuit, State of Hawaii Case No. 98-3815-08; LIBERTY MUTUAL OVERTIME
17 CASES, Los Angeles Superior Court Case No. JCCP 4234; Mitchell, et al. v. Acosta, Inc., dba
18 Acosta Sales and Marketing Company, United States District Court, Central District of California
19 Case No.11CV07196 (FLSA Conditional Certification); Santana v. Rady Children’s Hospital-San
20 Diego, San Diego Superior Court Case No. 37-2014-00022411; Schaffer v. Rady Children’s
21 Hospital-San Diego, San Diego Superior Court Case No. 337-2015-00022978; Schneider, et al. v.
22 Catholic Healthcare West, San Francisco Superior Court Case No. CGC-10-506243; Salucci v.
23 Amada Senior Care, Inc., Orange County Superior Court Case No. 37-2015-00778081; Smith v.
24 California Pizza Kitchen, San Diego Superior Court Case No. 37-2008-00083992; STEROID
25 HORMONE PRODUCT CASES, Los Angeles Superior Court Case No. JCCP 4363; Stevenson
26 Aibangbee v. Victoria Apartments, et al., Los Angeles County Superior Court Case No.
27 BC299498; Swift v. Liebert Corp., Orange County Superior Court Case No. 00CC04588; Sylvia,
28 et al. v. Wells Fargo Home Mortgage, Inc., Orange County Superior Co Case No. 03CC05747;
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Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement
Case No. CGC-19-574570
1 Vaquero v. Ashley Furniture Industries, Inc., et al., United States District Court, Central District
2 of California Case No. 12CV8590; Vaquero v. Stoneledge Furniture LLC, Los Angeles Superior
3 Court Case No. BC522676; Vazquez v. Kraft Heinz Foods Company, Unites States District Court,
4 Southern District of California Case No. 16-CV-02749; Watson v. Raytheon Company, United
5 States District Court, Southern District of California Case No. 1OCV0634; and Weigele v. FedEx
6 Ground Package System, Inc., United States District Court, Southern District of California Case
7 No. 06CV1330, among others, as well as being appointed Class Counsel in connection with well
8 over 175 class action settlements.
9 8. As Class Counsel, Cohelan Khoury & Singer has actively commenced, prosecuted
10 and concluded numerous state and federal class actions. Since 2016, Cohelan Khoury & Singer
11 has played a central role in the resolution of the following class action cases which have received
12 final approval by the Court: (a) Arellano, et al. v. Container Connection of Southern California,
13 Inc., Los Angeles Superior Court, Case No. BC500675, Hon. Anne I. Jones; (b) Castro v. Home
COHELAN KHOURY & SINGER
14 Depot U.S.A., Inc., Los Angeles County Superior Court, Case No. BC577885, Hon. Elihu M.
605 C Street, Suite 200
San Diego, CA 92101
15 Berle; (c) Czuchaj v. Conair Corporation, United States District Court, Southern District of
16 California, Case No. 13-CV-1901 BEN, Hon. Roger T. Benitez; (d) Gardiner v. TSYS, United
17 States District Court, Central District of California, Case No. 18-cv-00415, Hon. David O. Carter;
18 (e) Grana v. PICO Enterprises, Inc., Los Angeles County Superior Court, Case No. BC472891,
19 Hon. Stephanie M. Bowick; (f) Gutierrez v. Save Mart Supermarkets, San Mateo County Superior
20 Court, Case No. CIV530955, Hon. Marie S. Weiner; (g) Hernandez v. Workforce Enterprises
21 WFE, Inc., Los Angeles County Superior Court Case No. BC590913, Hon. Elihu M. Berle; (h)
22 Hicks v. Poway Academy of Hair Design, Inc., San Diego County Superior Court, Case No. 2014-
23 00026517, Hon. Ronald L. Styn; (i) Klein v. Loomis Armored US, LLC, San Bernardino County
24 Superior Court, Case No. CIVDS1704547, Hon. David Cohn; (j) Laureano v. The Art of Shaving,
25 Los Angeles Superior Court, Case No. BC550093, Hon. Amy D. Hogue; (k) Lopez, et al. v.
26 Management & Training Corporation, et al., United States District Court, Southern District of
27 California, Case No. 17-CV-010624 JM, Hon. Jeffrey T. Miller; (l) Magdaleno v. Shelly
28 Automotive, LLC, Orange County Superior Court Case No. 2013-0043958, Hon. Kim. G.
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Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement
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1 Dunning; (m) McGrath, et al. v. Wyndham Resort Development Corporation, et al., United States
2 District Court, Southern District of California, Case. No. 15-CV-1631 JM, Hon. Jeffrey T. Miller;
3 (n) Mena v. Wolfgang Puck Catering, Los Angeles County Superior Court Case No. BC582743,
4 Hon. John Shepard Wiley, Jr.; (o) Morales v. The Los Angeles Country Club, Los Angeles
5 Superior Court, Case No. BC566493, Hon. William F. Highberger; (p) Nijmeh v. Bon Appetit
6 Management Company, Inc., Santa Clara County Superior Court, Case No. 16CV294127, Hon.
7 Thomas E. Kuhnle; (q) Plascencia v. Aramark Services, Inc., Santa Clara County Superior Court,
8 Case No. 2015-1-CV-288310, Hon. Brian C. Walsh; (r) Plimpton v. Gordon Trucking, Inc., San
9 Bernardino County Superior Court, Case No. CIV-DS-1511918, Hon. Donald Alvarez; (s) Raya
10 v. Amazon, United States District Court, Northern District of California, Case No. 15-CV-02005
11 MMC, Hon. Maxine M. Chesney; (t) Rivas v. ESA Management, United States District Court,
12 Central District of California, Case No. 14-CV-5767, Hon. Dale S. Fischer; (u) Rodriguez v
13 Healthcare Partner Medical Group, Inc., Los Angeles Superior Court, Case No. BC541313, Hon.
COHELAN KHOURY & SINGER
14 Kenneth Freeman; (v) Ryan v. Dignity Health, Sacramento County Superior Court Case No.
605 C Street, Suite 200
San Diego, CA 92101
15 2013-00147371, Honorable Alan G. Perkins; (w) Santana v. Rady Children’s Hospital-San
16 Diego, San Diego Superior Court Case No. 37-2014-00022411, Hon. Joel R. Wohlfeil; (x)
17 Schaffer v. Rady Children’s Hospital-San Diego, San Diego Superior Court Case No. 337-2015-
18 00022978; Hon. Joel R. Wohlfeil; (y) Schneider v. Catholic Healthcare West, San Francisco
19 Superior Court, Case No. CGC-10-506243, Hon. Angela Bradstreet; (z) Schwartz v Bank of the
20 West, San Francisco Superior Court, Case No. CGC-14-538955, Hon. Harold E. Kahn; (aa) Syed
21 v. M.I. Swaco, United States District Court, Eastern District of California, Case No. 12-CV-01718
22 DAD, Hon. Dale A. Drozd; (bb) Vaquero, et al. v. Stoneledge Furniture, LLC, Los Angeles
23 Superior Court Case No. BC522676, Hon. Elihu M. Berle; (cc) Vazquez v. Kraft Heinz Foods
24 Company, Unites States District Court, Southern District of California Case No. 16-CV-02749,
25 Hon. William Q. Hayes; (dd) Walsh v. Cedars-Sinai Medical Center, Los Angeles County
26 Superior Court Case No. BC487290, Hon. William F. Highberger; among others.
27 9. We consider ourselves experienced and qualified to evaluate the claims and
28 viability of the defenses. That experience and those qualifications allowed our firm to assist in
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Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement
Case No. CGC-19-574570
1 achieving an efficient resolution of the claims in this matter for the maximum non-reversionary
2 Settlement Payment of $300,000 for an estimated 382 current and formerly employed Catering
3 Captains in California who provided services for Defendant Zesty, Inc., any time period from
4 December 1, 2017 through April 19, 2018 (the “Settlement Period”). The proposed Settlement is
5 memorialized in the Stipulation of Settlement and Release attached hereto as Exhibit A.
6 THE PARTIES AND SETTLEMENT GROUP MEMBERS
7 10. During the Settlement Period, Plaintiff worked for Zesty, Inc. as a Catering
8 Captain from October 2015 through February 25, 2018, and like other Catering Captions, was
9 classified as an independent contractor. Zesty reclassified the Captains as employees on February
10 19 and 26, 2018. Plaintiff continued to work for Zesty as a Catering Captain through April 19,
11 2018, when itwas acquired by Square, Inc. Plaintiff’s job duties included picking up food at
12 various restaurants, delivering and serving food to corporate client locations, food set-up, tear
13 down, and clean up. Because Plaintiff was frequently assigned to work alone, she and others like
COHELAN KHOURY & SINGER
14 her were unable to take rest breaks or meal periods.
605 C Street, Suite 200
San Diego, CA 92101
15 11. Zesty Inc. (“Zesty” or “Defendant”) is a food ordering service provider, providing
16 food delivery and services to corporate clients in the San Francisco metro area. In April 2018,
17 Zesty was acquired by Square, Inc., and ceased doing business in California. Plaintiff continued
18 to work for the new entity. See Ms. Pfeifer’s Declaration.
19 12. The Settlement Group Members are defined as current and formerly employed
20 individuals who provided services for Zesty as catering Captions sometime during the period
21 from December 1, 2017 through April 19, 2018.
22 13. The Settlement Group is comprised of 382 individuals who worked 4,143 weeks
23 during the 20-week Settlement Period.
24 LITIGATION HISTORY
25 14. On November 29, 2018, Plaintiff gave written notice to the Labor and Workforce
26 Development Agency (“LWDA”) and to Zesty of her intent to pursue PAGA penalties for alleged
27 violations of the California Labor Code. On February 6, 2019, Plaintiff amended this notice and
28 served the LWDA and Zesty. Attached hereto as Exhibits B and C are true and correct copies of
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Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement
Case No. CGC-19-574570
1 Plaintiff’s PAGA Notices.
2 15. On March 15, 2019, on behalf of herself and the Settlement Group, Plaintiff filed a
3 Class and PAGA representative action alleging (1) failure to pay overtime wages; (2) failure to
4 provide meal periods; (3) failure to provide rest periods; (4) failure to timely pay wages at
5 separation; (5) failure to provide accurate itemized wage statements; (6) failure to reimburse
6 necessary business expenses; (7) unfair business practices, and corresponding causes of action for
7 civil penalties under the PAGA.
8 16. On May 2, 2019, Plaintiff filed an Amended Complaint adding a cause of action
9 under the PAGA for independent contractor misclassification.
10 INVESTIGATION AND MEDIATION
11 17. Shortly following the filing of the lawsuit, the Parties agreed to engage in an early
12 mediation and defer formal discovery until after the mediation.
13 18. Once agreement was reached to engage in a mediation, Plaintiff’s counsel
COHELAN KHOURY & SINGER
14 requested, and Zesty’s counsel informally produced the relevant data to allow for Plaintiff’s
605 C Street, Suite 200
San Diego, CA 92101
15 counsel’s and her damages expert to assess violation rates and to calculate damages for the entire
16 Settlement Group for the entire Settlement Period. Relevant information and documentation
17 produced included rest and meal period policies, expense account policy, compensation policies,
18 the number of Settlement Group Members working as independent contractors during the relevant
19 period, the number of Settlement Group Members working as non-exempt employees after
20 reclassification, the average hourly rates of pay for those independent contractors and employees,
21 number of shifts worked, including a breakdown of the shifts of over 3.5 hours and 5 hours, total
22 compensation paid to those who were classified as independent contractor, the total regular,
23 overtime and double time wages paid, and total amount of reimbursed business expenses.
24 19. Zesty also provided information that no Zesty employee had opted out of an
25 arbitration agreement and class action waiver, including the Plaintiff.
26 20. On October 22, 2019, the Parties attended mediation in Oakland, California
27 engaging in good faith, arm’s-length and serious negotiations facilitated by an experienced and
28 well-regarded wage and hour mediator, Francis “Tripper” Ortman. After a full day, the Parties
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Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement
Case No. CGC-19-574570
1 reached agreement on the principal terms and thereafter negotiated at arm’s-length the remaining
2 terms memorialized in the Stipulation of Settlement and Release presented now for preliminary
3 approval.
4 PROPOSED SETTLEMENT
5 21. The Parties have agreed, subject to Court approval, this litigation may be settled
6 for a Total Maximum Settlement Amount (“MSA”) of $300,000 which includes: (a) attorneys’
7 fees of up to $100,000 to compensate the Settlement Group Counsel for work performed and
8 remaining to be performed to secure final Court approval and their litigation costs of up to
9 $12,000; (b) Named Plaintiff Award of $7,500 in recognition of Plaintiff’s initiation and
10 prosecution of the litigation, service as the sole representative, work performed, risks undertaken
11 for payment of costs if the case had not successfully concluded, substantial benefits conferred on
12 absent Settlement Group Members, and a general release of all claims; (c) PAGA Payment of
13 $37,500 (75% of $50,000); and (d) Administration expenses of up to $13,000. In addition to the
COHELAN KHOURY & SINGER
14 MSA, Zesty will also pay the employer’s Payroll Taxes.
605 C Street, Suite 200
San Diego, CA 92101
15 22. Plaintiff consented in writing to apportionment of fees awarded by the Court as
16 40% to Lebe Law, APLC, and 60% to Cohelan, Khoury & Singer.
17 23. After the Court-approved deductions, the sum remaining, the Net Settlement
18 Amount (“NSA”) estimated at $130,000, will be distributed to those Settlement Group Members
19 who do not opt-out, based on the number of Individual Work Weeks worked during the
20 Settlement Period in relation to aggregate number of Work Weeks worked by all members of the
21 Settlement Group during the Settlement Period. With an aggregate of 4,143 Work Weeks worked
22 by the 382 Settlement Group Members, each may expect to receive an estimated $31.37 for each
23 Work Week ($130,000 NSA / 4,143 weeks).
24 24. No part of the Settlement will revert to Zesty under any circumstances. Following
25 distribution of the Individual Settlement Payments to Settlement Group Members, uncashed
26 checks will be voided after 180 days and funds represented by those checks forwarded to the
27 California Secretary of State’s Unclaimed Property Division for further handling on behalf of the
28 Settlement Group Member whose checks were voided.
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1 25. Individual Settlement Payments will be allocated: 50% wages for which an IRS
2 Form W-2 will be issued, 15% interest and 15% penalties for which IRS 1099 Forms will be
3 issued, and 20% reimbursement of business-related expenses.
4 26. The formula and method of distribution of the Settlement is fair and reasonable
5 and does not give preferential treatment to any Settlement Group Member. The information
6 necessary to apply the formula is readily available from Defendant’s records, and the
7 Administrator can apply it fairly and transparently.
8 27. Settlement Group Members who do not exclude themselves from the Settlement
9 will release:
10 all claims, demands, rights, liabilities, and causes of action, whether known or unknown,
that were or could have been asserted (whether in tort, contract, or otherwise) against the
11 Releasees for violation of local, state and federal law arising out of, or relating to, the facts
and allegations pled in the Complaint, including that Defendant misclassified the
12
Settlement Group Members as independent contractors, failed to pay all wages due, failed
13 to pay overtime wages due, failed to pay minimum wage, failed to provide meal breaks,
COHELAN KHOURY & SINGER
failed to authorize and permit rest breaks, failed to provide timely or accurate final
14 paychecks, failed to pay wages timely, engaged in recordkeeping violations, failed to
605 C Street, Suite 200
San Diego, CA 92101
provide accurate itemized wage statements, failed to reimburse business expenses and/or
15 engaged in unfair business practices, and for penalties under the Private Attorneys General
Act at any time on or before April 19, 2018.
16
17 28. Once the Court approves the proposed Notice, an experienced neutral
18 Administrator selected by the Parties, CPT Group, Inc. and appointed by the Court, will search
19 the National Change of Address database to update addresses prior to mailing the Court-approved
20 Notice of Class Action Settlement (“Notice”), Change of Address Form, Request for Exclusion
21 Form, and pre-printed return envelope, (collectively, “Notice Packet”) to each member of the
22 Settlement Group identified in a list compiled by Defendant.
23 29. The Notice advises the Settlement Group of their rights to (1) participate in the
24 Settlement without having to submit a claim form; (2) exclude themselves from the Settlement by
25 returning an Exclusion Form and the deadline to do so; (3) object to the Settlement and the
26 timeline to do so; and, (4) dispute the information upon which their Individual Settlement
27 Payment is based, and the timeline to do so. The Notice also includes the formula applied to
28 determine the amount of an Individual Settlement Payment, the release of claims to be given, and
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Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement
Case No. CGC-19-574570
1 of the date, time and place set for the Final Approval hearing.
2 PROPOSED SETTLEMENT IS FAIR AND REASONABLE
3 30. The proposed Settlement was reached as a result of lengthy arms’-length
4 negotiations facilitated by Francis (“Tripper”) Ortman, an experienced wage and hour class action
5 mediator. By the end of the day, the Parties had agreed to a settlement in principle, and thereafter
6 continued arm’s-length negotiations by phone and email to create the Stipulation of Settlement
7 and Release attached here as Exhibit A.
8 31. While Plaintiff believes in the merit of her case, she also recognizes the inherent
9 risks of litigation and understands the benefit of the Class receiving significant and substantial
10 Settlement Payments immediately as opposed to risking an unfavorable decision on certification,
11 summary judgment, or on the merits at trial, or reduced damages awarded, or an appeal that
12 would take several more years to litigate at great expense.
13 32. Plaintiff’s Counsel investigated the claims before initiating this action. When the
COHELAN KHOURY & SINGER
14 Parties agreed to attend mediation, Plaintiff requested, and Defendant produced, pertinent relevant
605 C Street, Suite 200
San Diego, CA 92101
15 data and documents described above to allow liability and damages to be assessed. The
16 information allowed Plaintiff’s Counsel and Plaintiff’s damages expert to calculate the class-wide
17 damages for the entire Settlement Period.
18 33. Plaintiff’s Counsel have significant experience in litigating wage and hour
19 employment class actions. This experience allowed them to compare settlement of the claims
20 alleged with the risks of further litigation, including trialand appeals. Defense counsel, Orrick,
21 Herrington & Sutcliffe LLP, are skilled and sophisticated lawyers, with significant employment
22 and class action experience. They defended Zesty vigorously, including through mediation and
23 subsequent negotiations.
24 34. Plaintiff’s Counsel believes the Settlement achieved in this Action is fair,
25 reasonable, and in the Settlement Group’s best interest in light of the monetary recovery, the
26 developing state of the law, the risks of certification/decertification, adverse summary
27 adjudication rulings, the lengthy process of establishing damages, and the delay and uncertainty
28 of appeals.
- 11 -
Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement
Case No. CGC-19-574570
1 35. Plaintiff’s counsel relied on similar types of information, data and documents as in
2 Kullar and Munoz, including policies and procedures, the number of individuals classified as
3 independent contractors, the number of individuals classified as non-exempt employees after
4 reclassification, the shift and workweek counts, average hourly rates, and amount reimbursed as
5 business-related expenses. Plaintiff’s counsel and her damages’ expert reviewed and analyzed
6 these records to assess liability in order to calculate Class-wide damages and penalties for
7 presentation at mediation.
8 36. Plaintiff relied on anecdotal data from Plaintiff’s own records to estimate the
9 average amount of allegedly unpaid overtime hours and arrived at an estimate of thirty (30)
10 minutes unpaid overtime hours per shift for each class member. Plaintiff calculated maximum
11 exposure at $74,746. Plaintiff estimated the probability of prevailing on a certification motion at
12 50% and the probability at trial at 50%, resulting in a 75% discount of the realistic maximum
13 exposure of $18,686 based on these risks.
COHELAN KHOURY & SINGER
14 37. Plaintiff alleged that because Zesty misclassified Catering Captains as independent
605 C Street, Suite 200
San Diego, CA 92101
15 contractors, it failed to provide legally compliant meal and rest periods during the
16 misclassification period from December 1, 2017 through February 25, 2018. For this time frame,
17 Plaintiff calculated meal and rest period premiums for the number of eligible shifts as provided by
18 Zesty’s counsel in preparation for mediation, as well as Plaintiff’s own records. The total number
19 of eligible shifts over five hours was equal to 23% of the total number of shifts worked by
20 Catering Captains, and the total number of shifts over three and a half hours was equal to 44%.
21 For these shifts, Plaintiff assumed a 100% violation rate.
22 38. For meal period premiums, Plaintiff calculated maximum exposure at $68,761. Fo
Preview
1 COHELAN KHOURY & SINGER Michael D. Singer (SBN 115301) 2 msinger@ckslaw.com Diana M. Khoury (SBN 128643) ELECTRONICALLY 3 dkhoury@ckslaw.com F I L E D Superior Court of California, 4 Marta Manus (SBN 260132) County of San Francisco mmanus@ckslaw.com 5 05/08/2020 605 “C” Street, Suite 200 Clerk of the Court San Diego, CA 92101 BY: EDNALEEN ALEGRE 6 Deputy Clerk Tel: (619) 595-3001/Fax: (619) 595-3000 7 LEBE LAW, APLC Jonathan M. Lebe (SBN 284605) 8 jon@lebelaw.com 777 S. Alameda Street, Second Floor 9 Los Angeles, CA 90021 10 Tel: (213) 358-7046 11 Attorneys for Plaintiff Amie Pfeifer, on behalf of herself, and all other similarly-situated and aggrieved employees 12 13 SUPERIOR COURT OF CALIFORNIA COHELAN KHOURY & SINGER 14 COUNTY OF SAN FRANCISCO 605 C Street, Suite 200 San Diego, CA 92101 15 AMIE PFEIFER, on behalf of herself Case No. CGC-19-574570 and all other similarly-situated and aggrieved ASSIGNED FOR ALL PURPOSES TO: 16 employees, The Honorable Anne-Christine Massullo Department 304 17 Plaintiffs, 18 CLASS AND REPRESENTATIVE ACTION 19 v. DECLARATION OF ISAM C. KHOURY IN SUPPORT OF MOTION FOR ORDER 20 ZESTY, INC., a Delaware Corporation; and GRANTING PRELIMINARY APPROVAL DOES 1 through 100, Inclusive, OF CLASS ACTION SETTLEMENT 21 22 Date: June 11, 2020 Defendants. Time: 9:15 a.m. 23 Dept: 304 Judge: Hon. Anne-Christine Massullo 24 Filed: March 15, 2019 25 Trial date: Not set 26 27 28 Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement Case No. CGC-19-574570 1 I, Isam C, Khoury, declare as follows: 2 1. I am a Partner with the law firm of Cohelan Khoury & Singer, co-counsel of record 3 for Plaintiff Amie Pfeifer. I am a member in good standing of the State Bar of California. I make 4 this Declaration in support of Plaintiff’s Motion for Preliminary Approval of Class Action 5 Settlement. This Declaration is based on my personal knowledge and ifcalled to testify I could 6 and would competently testify to the matters contained in this Declaration. 7 2. I am a 1973 Hastings School of Law graduate and was admitted to the California 8 State Bar in 1974 and am admitted to practice in all state courts in California and in the all federal 9 courts in California, as well as the First Circuit Court of the State of Hawaii and the United States 10 Court of Appeals for Sixth Circuit. 11 3. In 1981, Timothy D. Cohelan and I formed Cohelan & Khoury, a Partnership of 12 Professional Law Corporations, and within a few years began to focus on class actions. In 2009, 13 Cohelan & Khoury became Cohelan Khoury & Singer. Our firm represents plaintiffs in complex, COHELAN KHOURY & SINGER 14 class and representative action litigation, including wage and hour, labor and employment, 605 C Street, Suite 200 San Diego, CA 92101 15 antitrust, consumer protection, construction defect and other public interest type class and 16 representative actions. Attached as Exhibit D is a copy of my firm’s curriculum vitae. 17 4. I, along with Partner Diana M. Khoury have been selected by our peers based on 18 ethics, experience and reputation as Super Lawyers in Civil Litigation by the Southern California 19 Super Lawyers Magazine for the years 2010 through 2018. Michael D. Singer, Managing Partner, 20 was named to the Daily Journal 2012, 2013, and 2018 list of Top California Labor and 21 Employment Attorneys and selected to the Southern California Super Lawyers in 2010, 2012- 22 2019. I am AV rated by Martindale-Hubbell, as are many attorneys in our firm. 23 5. Cohelan Khoury & Singer has been certified by the State Bar of California to 24 provide the Mandatory Continuing Legal Education activity entitled “Litigating California Class 25 Actions” and has conducted MCLE certified seminars on this topic. Senior Partner, Timothy D. 26 Cohelan, is the author of Cohelan on California Class Actions (1997-2020, updated annually), 27 part of Thomson Reuters Expert Series. Managing Partner, Michael D. Singer, is a contributing 28 author on the CEB publication California Wage and Hour Law: Compliance and Litigation (2010- -1- Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement Case No. CGC-19-574570 1 2020, updated annually), in which he wrote the opening chapter overview on California Wage and 2 Hour laws, including the public policy underpinnings for those laws, and the PAGA Claim 3 chapter. Mr. Singer has served as a columnist for the California State Bar, Litigation Section on 4 wage and hour litigation and has contributed articles on wage and hour and class action issues 5 through the years to numerous California publications. Mr. Singer typically lectures several times 6 per year for continuing education courses on wage and hour and class action issues at events in 7 San Diego, Orange County, Los Angeles, and San Francisco. Mr. Singer regularly contributes 8 amicus curiae briefs on class action and employment issues in the California Supreme Court and 9 Courts of Appeal. In his capacity as Amicus lesion for California Employment Lawyers 10 Association, he coordinated, drafted or co-drafted amicus letters and briefs on a wide range of 11 labor law issues in the rapidly developing decisional law, supporting Review in the Supreme 12 Court, and publication or depublication of Court of Appeal decisions. He has been engaged in the 13 practice of labor and employment law since 2000, handling well over 200 wage and hour class COHELAN KHOURY & SINGER 14 actions and several individual labor cases, and has litigated several types of employment actions, 605 C Street, Suite 200 San Diego, CA 92101 15 including complex ERISA employee welfare benefit plan cases, as well as wage and hour class 16 actions before Federal and State Courts in California. In 2014, Mr. Singer and J. Jason Hill tried a 17 wage and hour class action involving claims for illegally deducted wages and unreimbursed 18 expenses in the matter of Dilts v Penske Logistics LLC, Inc. We successfully appealed the trial 19 court ruling in Dilts finding state laws preempted by the FAAAA for truck drivers. Mr. Singer has 20 participated in over 50 appellate cases and argued writs and appeals before several California 21 District Courts of Appeal, arguing for plaintiffs on rehearing in Brinker International Inc. v. 22 Superior Court before the Fourth District Court of Appeal, as well as federal appeals in the 23 Second, Third, and Ninth Circuit Courts of Appeals. In addition, Mr. Singer has drafted numerous 24 appellate briefs as the appellant, respondent, or amicus curiae in employment class and individual 25 actions. As co-Class Counsel in Brinker Restaurant Corp. v. Superior Court [formerly reported at 26 (2008)165 Cal.App.4th 25], Mr. Singer argued before the Fourth District Court of Appeal in May 27 2008 on transfer from the California Supreme Court, and co-authored the successful Petition for 28 Review. My firm has successfully tried class cases, obtained appellate reversals of class -2- Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement Case No. CGC-19-574570 1 certification denials (Hicks v. Kaufman and Broad, (2001) 89 Cal.App.4th 908), certified multiple 2 wage and hour class. 3 6. As a part of our overall firm philosophy our lawyers are active in bar association 4 activities, perform community service and do pro bono work. Firm volunteer work includes 5 service through the Legal Aid at Work, San Diego Volunteer Lawyer Program, the San Diego 6 County Bar Foundation and Consumer Attorneys of San Diego. For instance, Mr. Singer has 7 served on the Legal Aid at Work Board of Directors since 2011. Mr. Cohelan served as the Chair 8 of the San Diego Volunteer Lawyers Program from 2015-2018, and currently sits on the Board as 9 past Chair. He completed 24 years of volunteer judicial service as a Judge Pro Tem of the San 10 Diego Superior Court, and Diana M. Khoury has served on the San Diego County Bar 11 Foundation’s (SDCBF) Board of Directors since 2013. SDCBF is the 501(c)(3) charitable arm of 12 the San Diego County Bar Association. Since admission to the California State Bar, Partner 13 Diana M. Khoury has been a member of the San Diego County Bar Association, Consumer COHELAN KHOURY & SINGER 14 Attorneys of San Diego, Consumer Attorneys of California, and American Association for Justice 605 C Street, Suite 200 San Diego, CA 92101 15 serving on numerous committees through the years for these organizations. For six years from 16 2010 through 2015, Ms. Khoury served on the Board of Directors for Consumer Attorneys of San 17 Diego, serving as chair of numerous committees. Our firm’s recent pro bono victories include a 18 settlement which prohibits the City of San Diego from targeting homeless people for illegal 19 lodging tickets under Penal Code Section 467(j). (Spencer v. City of San Diego, USDC Case No 20 04CV-2314 BEN (WMC).) The Spencer settlement had the effect of increasing the number of 21 available shelter beds in the City of San Diego. 22 7. Cohelan Khoury & Singer has been appointed certified Class Counsel in the 23 following contested proceedings: Aguilar v. Atlantic Richfield, et al., San Diego Superior Court 24 Case No. 00700810; Andino v. Kaiser Foundation Hospitals, Alameda Superior Court Case No. 25 RG11580548; Arellano, et al. v. Container Connection of Southern California, Inc., Los Angeles 26 Superior Court Case No. BC500675; BANK OF AMERICA WAGE AND HOUR EMPLOYMENT 27 PRACTICES LITIGATION, United States District Court, District of Kansas MDL Case No. 2138 28 (FLSA Condition Certification); Czuchaj v. Conair Corporation, United States District Court, -3- Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement Case No. CGC-19-574570 1 Southern District of California Case No. 13CV1901; Dilts, et al. v. Penske Logistics, L.L.C., et 2 al., United States District Court, Southern District of California Case No. 08CV0318; Englert, et 3 al. v. AT&T Wireless Services, Inc., et al.,Circuit Court of the Second Circuit, State of Hawaii 4 Case No. 02-1-0074; Evans v. Washington Mutual Bank, Orange County Superior Court Case No. 5 02CC15415; Filion v. Ethan Allen Retail Inc., United States District Court, Southern District of 6 California Case No. 05CV2340; Gerard v. Les Schwab Tire Centers of California, Inc., 7 Sacramento Superior Court Case No. 2007-30000003; Grana, et al. v. PICO Enterprises, Inc. dba 8 Phyle Inventory Control Specialist and PICS L.A.S.C. Case No. BC472891; Gutierrez v. Save 9 Mart Supermarkets San Mateo Superior Case No. CIV530955; Wilcox v Albertsons, San Diego 10 Superior Court Case No. GIC833922; Gonzalez, et al. v. Freedom Communications, Inc. d/b/a 11 The Orange County Register, Orange County Superior Court Case No. 03CC08756; Graham, et 12 al. v. Overland Solutions, Inc., United States District Court, Southern District of California Case 13 No. 10CV0672 (FLSA Conditional Certification); Hicks v. Kaufman and Broad Home Corp., Los COHELAN KHOURY & SINGER 14 Angeles Superior Court Case No. B198414; Hohnbaum, et al. v. Brinker Restaurant Corporation, 605 C Street, Suite 200 San Diego, CA 92101 15 et al., San Diego Superior Court Case No. GIC834348; KEMP, et al. v. CSEA, et al., Circuit 16 Court of the First Circuit, State of Hawaii Case No. 98-3815-08; LIBERTY MUTUAL OVERTIME 17 CASES, Los Angeles Superior Court Case No. JCCP 4234; Mitchell, et al. v. Acosta, Inc., dba 18 Acosta Sales and Marketing Company, United States District Court, Central District of California 19 Case No.11CV07196 (FLSA Conditional Certification); Santana v. Rady Children’s Hospital-San 20 Diego, San Diego Superior Court Case No. 37-2014-00022411; Schaffer v. Rady Children’s 21 Hospital-San Diego, San Diego Superior Court Case No. 337-2015-00022978; Schneider, et al. v. 22 Catholic Healthcare West, San Francisco Superior Court Case No. CGC-10-506243; Salucci v. 23 Amada Senior Care, Inc., Orange County Superior Court Case No. 37-2015-00778081; Smith v. 24 California Pizza Kitchen, San Diego Superior Court Case No. 37-2008-00083992; STEROID 25 HORMONE PRODUCT CASES, Los Angeles Superior Court Case No. JCCP 4363; Stevenson 26 Aibangbee v. Victoria Apartments, et al., Los Angeles County Superior Court Case No. 27 BC299498; Swift v. Liebert Corp., Orange County Superior Court Case No. 00CC04588; Sylvia, 28 et al. v. Wells Fargo Home Mortgage, Inc., Orange County Superior Co Case No. 03CC05747; -4- Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement Case No. CGC-19-574570 1 Vaquero v. Ashley Furniture Industries, Inc., et al., United States District Court, Central District 2 of California Case No. 12CV8590; Vaquero v. Stoneledge Furniture LLC, Los Angeles Superior 3 Court Case No. BC522676; Vazquez v. Kraft Heinz Foods Company, Unites States District Court, 4 Southern District of California Case No. 16-CV-02749; Watson v. Raytheon Company, United 5 States District Court, Southern District of California Case No. 1OCV0634; and Weigele v. FedEx 6 Ground Package System, Inc., United States District Court, Southern District of California Case 7 No. 06CV1330, among others, as well as being appointed Class Counsel in connection with well 8 over 175 class action settlements. 9 8. As Class Counsel, Cohelan Khoury & Singer has actively commenced, prosecuted 10 and concluded numerous state and federal class actions. Since 2016, Cohelan Khoury & Singer 11 has played a central role in the resolution of the following class action cases which have received 12 final approval by the Court: (a) Arellano, et al. v. Container Connection of Southern California, 13 Inc., Los Angeles Superior Court, Case No. BC500675, Hon. Anne I. Jones; (b) Castro v. Home COHELAN KHOURY & SINGER 14 Depot U.S.A., Inc., Los Angeles County Superior Court, Case No. BC577885, Hon. Elihu M. 605 C Street, Suite 200 San Diego, CA 92101 15 Berle; (c) Czuchaj v. Conair Corporation, United States District Court, Southern District of 16 California, Case No. 13-CV-1901 BEN, Hon. Roger T. Benitez; (d) Gardiner v. TSYS, United 17 States District Court, Central District of California, Case No. 18-cv-00415, Hon. David O. Carter; 18 (e) Grana v. PICO Enterprises, Inc., Los Angeles County Superior Court, Case No. BC472891, 19 Hon. Stephanie M. Bowick; (f) Gutierrez v. Save Mart Supermarkets, San Mateo County Superior 20 Court, Case No. CIV530955, Hon. Marie S. Weiner; (g) Hernandez v. Workforce Enterprises 21 WFE, Inc., Los Angeles County Superior Court Case No. BC590913, Hon. Elihu M. Berle; (h) 22 Hicks v. Poway Academy of Hair Design, Inc., San Diego County Superior Court, Case No. 2014- 23 00026517, Hon. Ronald L. Styn; (i) Klein v. Loomis Armored US, LLC, San Bernardino County 24 Superior Court, Case No. CIVDS1704547, Hon. David Cohn; (j) Laureano v. The Art of Shaving, 25 Los Angeles Superior Court, Case No. BC550093, Hon. Amy D. Hogue; (k) Lopez, et al. v. 26 Management & Training Corporation, et al., United States District Court, Southern District of 27 California, Case No. 17-CV-010624 JM, Hon. Jeffrey T. Miller; (l) Magdaleno v. Shelly 28 Automotive, LLC, Orange County Superior Court Case No. 2013-0043958, Hon. Kim. G. -5- Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement Case No. CGC-19-574570 1 Dunning; (m) McGrath, et al. v. Wyndham Resort Development Corporation, et al., United States 2 District Court, Southern District of California, Case. No. 15-CV-1631 JM, Hon. Jeffrey T. Miller; 3 (n) Mena v. Wolfgang Puck Catering, Los Angeles County Superior Court Case No. BC582743, 4 Hon. John Shepard Wiley, Jr.; (o) Morales v. The Los Angeles Country Club, Los Angeles 5 Superior Court, Case No. BC566493, Hon. William F. Highberger; (p) Nijmeh v. Bon Appetit 6 Management Company, Inc., Santa Clara County Superior Court, Case No. 16CV294127, Hon. 7 Thomas E. Kuhnle; (q) Plascencia v. Aramark Services, Inc., Santa Clara County Superior Court, 8 Case No. 2015-1-CV-288310, Hon. Brian C. Walsh; (r) Plimpton v. Gordon Trucking, Inc., San 9 Bernardino County Superior Court, Case No. CIV-DS-1511918, Hon. Donald Alvarez; (s) Raya 10 v. Amazon, United States District Court, Northern District of California, Case No. 15-CV-02005 11 MMC, Hon. Maxine M. Chesney; (t) Rivas v. ESA Management, United States District Court, 12 Central District of California, Case No. 14-CV-5767, Hon. Dale S. Fischer; (u) Rodriguez v 13 Healthcare Partner Medical Group, Inc., Los Angeles Superior Court, Case No. BC541313, Hon. COHELAN KHOURY & SINGER 14 Kenneth Freeman; (v) Ryan v. Dignity Health, Sacramento County Superior Court Case No. 605 C Street, Suite 200 San Diego, CA 92101 15 2013-00147371, Honorable Alan G. Perkins; (w) Santana v. Rady Children’s Hospital-San 16 Diego, San Diego Superior Court Case No. 37-2014-00022411, Hon. Joel R. Wohlfeil; (x) 17 Schaffer v. Rady Children’s Hospital-San Diego, San Diego Superior Court Case No. 337-2015- 18 00022978; Hon. Joel R. Wohlfeil; (y) Schneider v. Catholic Healthcare West, San Francisco 19 Superior Court, Case No. CGC-10-506243, Hon. Angela Bradstreet; (z) Schwartz v Bank of the 20 West, San Francisco Superior Court, Case No. CGC-14-538955, Hon. Harold E. Kahn; (aa) Syed 21 v. M.I. Swaco, United States District Court, Eastern District of California, Case No. 12-CV-01718 22 DAD, Hon. Dale A. Drozd; (bb) Vaquero, et al. v. Stoneledge Furniture, LLC, Los Angeles 23 Superior Court Case No. BC522676, Hon. Elihu M. Berle; (cc) Vazquez v. Kraft Heinz Foods 24 Company, Unites States District Court, Southern District of California Case No. 16-CV-02749, 25 Hon. William Q. Hayes; (dd) Walsh v. Cedars-Sinai Medical Center, Los Angeles County 26 Superior Court Case No. BC487290, Hon. William F. Highberger; among others. 27 9. We consider ourselves experienced and qualified to evaluate the claims and 28 viability of the defenses. That experience and those qualifications allowed our firm to assist in -6- Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement Case No. CGC-19-574570 1 achieving an efficient resolution of the claims in this matter for the maximum non-reversionary 2 Settlement Payment of $300,000 for an estimated 382 current and formerly employed Catering 3 Captains in California who provided services for Defendant Zesty, Inc., any time period from 4 December 1, 2017 through April 19, 2018 (the “Settlement Period”). The proposed Settlement is 5 memorialized in the Stipulation of Settlement and Release attached hereto as Exhibit A. 6 THE PARTIES AND SETTLEMENT GROUP MEMBERS 7 10. During the Settlement Period, Plaintiff worked for Zesty, Inc. as a Catering 8 Captain from October 2015 through February 25, 2018, and like other Catering Captions, was 9 classified as an independent contractor. Zesty reclassified the Captains as employees on February 10 19 and 26, 2018. Plaintiff continued to work for Zesty as a Catering Captain through April 19, 11 2018, when itwas acquired by Square, Inc. Plaintiff’s job duties included picking up food at 12 various restaurants, delivering and serving food to corporate client locations, food set-up, tear 13 down, and clean up. Because Plaintiff was frequently assigned to work alone, she and others like COHELAN KHOURY & SINGER 14 her were unable to take rest breaks or meal periods. 605 C Street, Suite 200 San Diego, CA 92101 15 11. Zesty Inc. (“Zesty” or “Defendant”) is a food ordering service provider, providing 16 food delivery and services to corporate clients in the San Francisco metro area. In April 2018, 17 Zesty was acquired by Square, Inc., and ceased doing business in California. Plaintiff continued 18 to work for the new entity. See Ms. Pfeifer’s Declaration. 19 12. The Settlement Group Members are defined as current and formerly employed 20 individuals who provided services for Zesty as catering Captions sometime during the period 21 from December 1, 2017 through April 19, 2018. 22 13. The Settlement Group is comprised of 382 individuals who worked 4,143 weeks 23 during the 20-week Settlement Period. 24 LITIGATION HISTORY 25 14. On November 29, 2018, Plaintiff gave written notice to the Labor and Workforce 26 Development Agency (“LWDA”) and to Zesty of her intent to pursue PAGA penalties for alleged 27 violations of the California Labor Code. On February 6, 2019, Plaintiff amended this notice and 28 served the LWDA and Zesty. Attached hereto as Exhibits B and C are true and correct copies of -7- Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement Case No. CGC-19-574570 1 Plaintiff’s PAGA Notices. 2 15. On March 15, 2019, on behalf of herself and the Settlement Group, Plaintiff filed a 3 Class and PAGA representative action alleging (1) failure to pay overtime wages; (2) failure to 4 provide meal periods; (3) failure to provide rest periods; (4) failure to timely pay wages at 5 separation; (5) failure to provide accurate itemized wage statements; (6) failure to reimburse 6 necessary business expenses; (7) unfair business practices, and corresponding causes of action for 7 civil penalties under the PAGA. 8 16. On May 2, 2019, Plaintiff filed an Amended Complaint adding a cause of action 9 under the PAGA for independent contractor misclassification. 10 INVESTIGATION AND MEDIATION 11 17. Shortly following the filing of the lawsuit, the Parties agreed to engage in an early 12 mediation and defer formal discovery until after the mediation. 13 18. Once agreement was reached to engage in a mediation, Plaintiff’s counsel COHELAN KHOURY & SINGER 14 requested, and Zesty’s counsel informally produced the relevant data to allow for Plaintiff’s 605 C Street, Suite 200 San Diego, CA 92101 15 counsel’s and her damages expert to assess violation rates and to calculate damages for the entire 16 Settlement Group for the entire Settlement Period. Relevant information and documentation 17 produced included rest and meal period policies, expense account policy, compensation policies, 18 the number of Settlement Group Members working as independent contractors during the relevant 19 period, the number of Settlement Group Members working as non-exempt employees after 20 reclassification, the average hourly rates of pay for those independent contractors and employees, 21 number of shifts worked, including a breakdown of the shifts of over 3.5 hours and 5 hours, total 22 compensation paid to those who were classified as independent contractor, the total regular, 23 overtime and double time wages paid, and total amount of reimbursed business expenses. 24 19. Zesty also provided information that no Zesty employee had opted out of an 25 arbitration agreement and class action waiver, including the Plaintiff. 26 20. On October 22, 2019, the Parties attended mediation in Oakland, California 27 engaging in good faith, arm’s-length and serious negotiations facilitated by an experienced and 28 well-regarded wage and hour mediator, Francis “Tripper” Ortman. After a full day, the Parties -8- Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement Case No. CGC-19-574570 1 reached agreement on the principal terms and thereafter negotiated at arm’s-length the remaining 2 terms memorialized in the Stipulation of Settlement and Release presented now for preliminary 3 approval. 4 PROPOSED SETTLEMENT 5 21. The Parties have agreed, subject to Court approval, this litigation may be settled 6 for a Total Maximum Settlement Amount (“MSA”) of $300,000 which includes: (a) attorneys’ 7 fees of up to $100,000 to compensate the Settlement Group Counsel for work performed and 8 remaining to be performed to secure final Court approval and their litigation costs of up to 9 $12,000; (b) Named Plaintiff Award of $7,500 in recognition of Plaintiff’s initiation and 10 prosecution of the litigation, service as the sole representative, work performed, risks undertaken 11 for payment of costs if the case had not successfully concluded, substantial benefits conferred on 12 absent Settlement Group Members, and a general release of all claims; (c) PAGA Payment of 13 $37,500 (75% of $50,000); and (d) Administration expenses of up to $13,000. In addition to the COHELAN KHOURY & SINGER 14 MSA, Zesty will also pay the employer’s Payroll Taxes. 605 C Street, Suite 200 San Diego, CA 92101 15 22. Plaintiff consented in writing to apportionment of fees awarded by the Court as 16 40% to Lebe Law, APLC, and 60% to Cohelan, Khoury & Singer. 17 23. After the Court-approved deductions, the sum remaining, the Net Settlement 18 Amount (“NSA”) estimated at $130,000, will be distributed to those Settlement Group Members 19 who do not opt-out, based on the number of Individual Work Weeks worked during the 20 Settlement Period in relation to aggregate number of Work Weeks worked by all members of the 21 Settlement Group during the Settlement Period. With an aggregate of 4,143 Work Weeks worked 22 by the 382 Settlement Group Members, each may expect to receive an estimated $31.37 for each 23 Work Week ($130,000 NSA / 4,143 weeks). 24 24. No part of the Settlement will revert to Zesty under any circumstances. Following 25 distribution of the Individual Settlement Payments to Settlement Group Members, uncashed 26 checks will be voided after 180 days and funds represented by those checks forwarded to the 27 California Secretary of State’s Unclaimed Property Division for further handling on behalf of the 28 Settlement Group Member whose checks were voided. -9- Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement Case No. CGC-19-574570 1 25. Individual Settlement Payments will be allocated: 50% wages for which an IRS 2 Form W-2 will be issued, 15% interest and 15% penalties for which IRS 1099 Forms will be 3 issued, and 20% reimbursement of business-related expenses. 4 26. The formula and method of distribution of the Settlement is fair and reasonable 5 and does not give preferential treatment to any Settlement Group Member. The information 6 necessary to apply the formula is readily available from Defendant’s records, and the 7 Administrator can apply it fairly and transparently. 8 27. Settlement Group Members who do not exclude themselves from the Settlement 9 will release: 10 all claims, demands, rights, liabilities, and causes of action, whether known or unknown, that were or could have been asserted (whether in tort, contract, or otherwise) against the 11 Releasees for violation of local, state and federal law arising out of, or relating to, the facts and allegations pled in the Complaint, including that Defendant misclassified the 12 Settlement Group Members as independent contractors, failed to pay all wages due, failed 13 to pay overtime wages due, failed to pay minimum wage, failed to provide meal breaks, COHELAN KHOURY & SINGER failed to authorize and permit rest breaks, failed to provide timely or accurate final 14 paychecks, failed to pay wages timely, engaged in recordkeeping violations, failed to 605 C Street, Suite 200 San Diego, CA 92101 provide accurate itemized wage statements, failed to reimburse business expenses and/or 15 engaged in unfair business practices, and for penalties under the Private Attorneys General Act at any time on or before April 19, 2018. 16 17 28. Once the Court approves the proposed Notice, an experienced neutral 18 Administrator selected by the Parties, CPT Group, Inc. and appointed by the Court, will search 19 the National Change of Address database to update addresses prior to mailing the Court-approved 20 Notice of Class Action Settlement (“Notice”), Change of Address Form, Request for Exclusion 21 Form, and pre-printed return envelope, (collectively, “Notice Packet”) to each member of the 22 Settlement Group identified in a list compiled by Defendant. 23 29. The Notice advises the Settlement Group of their rights to (1) participate in the 24 Settlement without having to submit a claim form; (2) exclude themselves from the Settlement by 25 returning an Exclusion Form and the deadline to do so; (3) object to the Settlement and the 26 timeline to do so; and, (4) dispute the information upon which their Individual Settlement 27 Payment is based, and the timeline to do so. The Notice also includes the formula applied to 28 determine the amount of an Individual Settlement Payment, the release of claims to be given, and - 10 - Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement Case No. CGC-19-574570 1 of the date, time and place set for the Final Approval hearing. 2 PROPOSED SETTLEMENT IS FAIR AND REASONABLE 3 30. The proposed Settlement was reached as a result of lengthy arms’-length 4 negotiations facilitated by Francis (“Tripper”) Ortman, an experienced wage and hour class action 5 mediator. By the end of the day, the Parties had agreed to a settlement in principle, and thereafter 6 continued arm’s-length negotiations by phone and email to create the Stipulation of Settlement 7 and Release attached here as Exhibit A. 8 31. While Plaintiff believes in the merit of her case, she also recognizes the inherent 9 risks of litigation and understands the benefit of the Class receiving significant and substantial 10 Settlement Payments immediately as opposed to risking an unfavorable decision on certification, 11 summary judgment, or on the merits at trial, or reduced damages awarded, or an appeal that 12 would take several more years to litigate at great expense. 13 32. Plaintiff’s Counsel investigated the claims before initiating this action. When the COHELAN KHOURY & SINGER 14 Parties agreed to attend mediation, Plaintiff requested, and Defendant produced, pertinent relevant 605 C Street, Suite 200 San Diego, CA 92101 15 data and documents described above to allow liability and damages to be assessed. The 16 information allowed Plaintiff’s Counsel and Plaintiff’s damages expert to calculate the class-wide 17 damages for the entire Settlement Period. 18 33. Plaintiff’s Counsel have significant experience in litigating wage and hour 19 employment class actions. This experience allowed them to compare settlement of the claims 20 alleged with the risks of further litigation, including trialand appeals. Defense counsel, Orrick, 21 Herrington & Sutcliffe LLP, are skilled and sophisticated lawyers, with significant employment 22 and class action experience. They defended Zesty vigorously, including through mediation and 23 subsequent negotiations. 24 34. Plaintiff’s Counsel believes the Settlement achieved in this Action is fair, 25 reasonable, and in the Settlement Group’s best interest in light of the monetary recovery, the 26 developing state of the law, the risks of certification/decertification, adverse summary 27 adjudication rulings, the lengthy process of establishing damages, and the delay and uncertainty 28 of appeals. - 11 - Declaration of Isam C. Khoury ISO Motion for Preliminary Approval of Class Action Settlement Case No. CGC-19-574570 1 35. Plaintiff’s counsel relied on similar types of information, data and documents as in 2 Kullar and Munoz, including policies and procedures, the number of individuals classified as 3 independent contractors, the number of individuals classified as non-exempt employees after 4 reclassification, the shift and workweek counts, average hourly rates, and amount reimbursed as 5 business-related expenses. Plaintiff’s counsel and her damages’ expert reviewed and analyzed 6 these records to assess liability in order to calculate Class-wide damages and penalties for 7 presentation at mediation. 8 36. Plaintiff relied on anecdotal data from Plaintiff’s own records to estimate the 9 average amount of allegedly unpaid overtime hours and arrived at an estimate of thirty (30) 10 minutes unpaid overtime hours per shift for each class member. Plaintiff calculated maximum 11 exposure at $74,746. Plaintiff estimated the probability of prevailing on a certification motion at 12 50% and the probability at trial at 50%, resulting in a 75% discount of the realistic maximum 13 exposure of $18,686 based on these risks. COHELAN KHOURY & SINGER 14 37. Plaintiff alleged that because Zesty misclassified Catering Captains as independent 605 C Street, Suite 200 San Diego, CA 92101 15 contractors, it failed to provide legally compliant meal and rest periods during the 16 misclassification period from December 1, 2017 through February 25, 2018. For this time frame, 17 Plaintiff calculated meal and rest period premiums for the number of eligible shifts as provided by 18 Zesty’s counsel in preparation for mediation, as well as Plaintiff’s own records. The total number 19 of eligible shifts over five hours was equal to 23% of the total number of shifts worked by 20 Catering Captains, and the total number of shifts over three and a half hours was equal to 44%. 21 For these shifts, Plaintiff assumed a 100% violation rate. 22 38. For meal period premiums, Plaintiff calculated maximum exposure at $68,761. Fo