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David Mara, Esq. (230498) F I L K D
Jamie Serb, Esq. (289601) Supérior Couft of California
Tony Roberts (315595) “County of Sa Francisco
MARA LAW FIRM, PC FEB 0 5 2020
2650 Camino Del Rio North, Suite 205 .
COURT
San Diego, California 92108 CLER Fy
By:
Facsimile: (619) 234-4048 ¥ Capa Ge
Telephone: (619) 234-2833
Attorneys for DAVID ALLEY,
on behalf of himself, all others similarly situated,
and on behalf of the general public.
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
DAVID ALLEY, on behalf of himself, all | Case No. CGC-18-569909
others similarly situated, and on behalf of
the general public, [Assigned for all purposes to Hon. Anne-Christine
. Massullo]
Plaintiff,
DECLARATION OF DAVID MARA, ESQ. IN
v. SUPPORT OF PLAINTIFF’S MOTION FOR
. PRELIMINARY APPROVAL OF CLASS ACTION
Snot 100, ieee and DOES 1 SETTLEMENT; CONDITIONAL
CERTIFICATION; APPROVAL OF CLASS
Defendants. NOTICE; AND SETTING OF FINAL APPROVAL
HEARING DATE
Date: March 19, 2020
Time: 9:15 AM
Dept: 304
Judge: Hon. Anne-Christine Massullo
Action Filed: September 19, 2018
Trial date: None set
DECLARATION OF DAVID MARA, ESQ. Case No. CGC-18-569909NY Dw
I, DAVID MARA, declare as follows:
1.
I am President of Mara Law Firm, PC and counsel of record for Plaintiffs and the putative
class in this matter. I am duly admitted to practice before all the courts of the state of
California. The following facts are within my personal knowledge and, if called to testify, 1
could and would competently testify thereto.
I have been practicing law in California since 2004.
I extensively handle employment cases which involve violations of the California Labor Code
and Industrial Welfare Commission Wage Orders, such as wage and hour class actions and
cases alleging violations of the Private Attomeys General Act of 2004 (“PAGA”).
I was co-class counsel in Hohnbaum v. Brinker Restaurant Corp., San Diego Superior Court,
Case No. GIC834348, which was the underlying case in the California Supreme Court’s
landmark decision in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, in
which the California Supreme Court delineated the scope of employer obligations to provide,
and employee rights to receive, meal and rest periods under California law.
I wrote an Amicus brief on behalf of Consumer Attorneys Of California (“(CAOC”) in the
recent decision by the California Supreme Court in Augustus v. ABM Security Services, Inc.
(2016) 2 Cal.Sth 257 (rest breaks must be duty-free and time spent being on call during rest
breaks is not considered duty-free).
My firm also wrote an Amicus brief on behalf of CAOC in the recent decision by the
Califomia Supreme Court in Williams v. Superior Court (2017) 3 Cal. Sth 531 (PAGA and
wage and hour class action).
My firm has been granted class certification in both state and federal courts.
I am also Plaintiffs counsel in a host of other class actions involving violations of
California’s wage and hour laws, many of which involve the transportation industry. For
example, I have been and am involved as counsel for plaintiffs in the following sampling of
class action cases involving wage and hour violations under California law: Davis v. Apria
Healthcare Group (Case No. 37-2015-00007743); Norona v. B&G Delivery System, Inc.
(Case No. RG1577005); Perez v. City of San Diego (Case No. 37-2014-00016621); Cuellar-
“DECLARATION OF DAVID MARA, ESQ. 1 Case No. CGC-18-569909 |om YN DH RB BN
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Ramirez v. US Foods, inc. (Case No. RG15770766); Peron v. The Vons Companies, Inc.
(Case No. 15-cv-01567-L-JMA); Hilderbrand v. LinkUs Enterprises, LLC (Case No|
DR150155); Belton v. Pacific Pulmonary Services (Case No. CGC-15-547564); Medina y|
Central Cal Transportation, Inc, (Case No. RG15770011); Eure v. Dotson v. Asbury
Environmental Services (Case No. RG16842620); Spikes v. Bear Trucking, Inc. (Case No]
16CECG02389); Reynoso v. Benjamin's Transfer, Inc. (Case No. FCS048845); Montes y,
Coram Specialty Infusion Services, Inc. (Case No. 37-2016-00028950-CU-OE-CTL);
Rodriguez v. Delta Sierra Beverage, LLC (Case No. 34-2017-00206727); Clavel v. La Jolla
Beach & Tennis Club, Inc. (Case No. 37-2017-00004802-CU-OE-CTL); Martin v. Sysco|
Central California, Inc. (Case No. 9000052).
Mara Law Firm, PC (formerly The Turley & Mara Law Firm, APLC) devotes a significant
portion of its practice specifically to wage and hour class actions. A majority of the cases ||
handle are wage and hour class actions and actions filed pursuant to the Private Attorneys
General Act of 2004 (“PAGA”). Ms. Serb and Mr. Roberts solely handle wage and hour class|
actions and PAGA actions. Mara Law Firm, PC, has been appointed class counsel i
numerous federal and state class actions. Mara Law Firm, PC, and its lawyers have handled|
over three hundred and fifty (350) class action and PAGA: lawsuits. Mara Law Firm, PC, and/
its lawyers have successfully settled over one hundred (100) cases over a period off
approximately fifteen (15) years, resulting in the recovery of millions of dollars for class
members.
Mara Law Firm, PC, is well versed in wage and hour class action law. Specifically, Mara La
Firm, PC, has obtained class certification and has been certified as class counsel in the
following cases: Mario Norona v. B&G Delivery System, Inc. (Sacramento County Superioy
Court, Case No. 34-2015-00186826-CU-OE-GDS); Jerald Schroeder v. YRC, Inc.; YRC|
Worldwide, Inc. (Central District of California, Case No. 12-cv-01374-TJH); John Martin v\
Sysco Corporation; Sysco Central California, Inc. (Eastern District of California, Case No.
1:16-cv-00990-DAD-SAB); William Smith v. Werner Enterprises, Inc. d/b/a C.L. Werner, Ine.
(istrict of Nebraska, Case No. 8:15-cv-287), and Thomas Perez v. City of San Diego (Sani
DECLARATION OF DAVID MARA, ESQ. 2 Case No. CGC-18-56990911.
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Diego County Superior Court, Case No. 37-2014-00016621-CU-OE-CTL).
In addition, Mara Law Firm, PC, filed and fully briefed class certification motions before the
following cases were settled: Alton Davis v. Apria Healthcare Group, Ine. (San Diego County,
Superior Court, Case No. 37-2014-00004724); Rick Frieri v. Sysco Corporation; Sysco San
Diego, Inc. (Southern District of California, Case No. 16-cv-1432-JLS-NLS); Alberto Solan
and Damon Randall v. Professional Auto Transport, Inc. (San Bernardino County Superioy
Court, Case No. CIVDS1619020); Richard Terry v. Hoovestol, Inc. (Northern District of
California, Case No. 3:16-cv-05183-JST); and Kristina McConville v. Renzenberger, Inc|
(Central District of California, Case No. 2:17-cv-02972-FMO-JC).
. L have litigated over three hundred and fifty (350) class action and PAGA lawsuits. I have
been litigating wage and hour class action lawsuits for approximately fifteen (15) years. ]]
graduated from California Western School of Law and was admitted to practice law in!
California in May 2004. I primarily handle wage and hour class actions and PAGA actions. I
am the president of Mara Law Firm, PC and was a partner of The Turley & Mara Law Firm]
APLC. I supervise and oversee the class action department of the firm which consists of five)
(5) associate attorneys.
I was co-class counsel in Hohnbaum v. Brinker Restaurant Corp. (San Diego County Superioy
Court, Case No. 'GIC834348) which was the underlying case in the California Supreme
Court’s landmark decision in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4thi
1004, in which the California Supreme Court delineated the scope of employer obligations to
provide, and employee rights to receive, meal and rest periods under California law. I also,
wrote the Amicus Curiae brief on behalf of Consumer Attorneys of California (““CAOC”) in}
the decision by the California Supreme Court in Augustus v. ABM Security Services, Inc]
(2016) 2 Cal.5th 257 (rest breaks must be duty-free and time spent being on call during rest
breaks is not considered duty-free). I also wrote the Amicus Curiae brief on behalf of CAOC|
in the matter currently pending before the California Supreme Court, Friekin v. Apple, Inc.
(Cal. S. Ct. No. $243805).
I oversee all aspects of the class action and PAGA action cases Mara Law Firm, PC, handles.
“DECLARATION OF DAVID MARA, ESQ. 3 Case No. CGC-18-56990915.
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I also write a wide range of motions and argue at a wide range of hearings. I review and edit}
motions written by the associates at Mara Law Firm, PC; develop strategies with associates at!
Mara Law Firm, PC, in how to best litigate each case; review and edit discovery that is sent]
out to employers; review and edit clients’ discovery responses; draft and revise complaints;
draft and revise retainers sent to clients; communicate with clients; communicate with class|
members; communicate with defense counsel; communicate with co-counsel; revie
documents produced by employers; conduct investigations into potential cases; research and|
stay up to date in relevant law; attend mediations; draft, review, and revise settlement
agreements; and oversee all day to day matters in cases.
I have been named as class counsel in the following certified cases as a result of the court
granting a motion for class certification: Mario Norona v. B&G Delivery System, Inc.
(Sacramento County Superior Court, Case No. 34-2015-00186826-CU-OE-GDS), Jerald
Schroeder v. YRC, Inc.; YRC Worldwide, Inc. (Central District of California, Case No. 12-cv-
01374-TJH); John Martin v. Sysco Corporation; Sysco Central California, Inc. (Eastern|
District of California, Case No. 1:16-cv-00990-DAD-SAB); William Smith v. Werne
Enterprises, Inc. d/b/a C.L. Werner, Inc. (District of Nebraska, Case No. 8:15-cv-287); and!
Thomas Perez v. City of San Diego (San Diego County Superior Court, Case No. 37-2014-
00016621-CU-OE-CTL).
In 2017, I was co-first chair in a maritime/employment related trial in federal court, of which]
Ms. Serb also assisted with, that lasted one week. In 2012, I was second chair in a product]
liability trial in state court that lasted just over a month. In 2008 and 2010, I was heavily|
involved in a wrongful death, product liability trial that involved multiple firms and lasted!
approximately two and a half months.
Jamie Serb is an associate at Mara Law Firm, PC. She solely handles wage and hour class}
actions and PAGA actions. Ms. Serb graduated from California Western School of Law and]
was admitted to practice law in California in June 2013 and received her undergraduate degree|
from University of California, San Diego in 2004. Ms. Serb has been litigating wage and hour
class actions for over four (4) years and has handled over one hundred (100) class action and
DECLARATION OF DAVID MARA, ESQ. 4 Case No. CGC-18-56990918.
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. Ms. Serb has been named as class counsel in the following certified cases as a result of the|
PAGA lawsuits. Ms. Serb received her training in wage and hour class action and PAGA|
lawsuits while at Mara Law Firm, PC. Ms. Serb has been at the Mara Law Firm, PC, for over
four (4) years and oversees another associate at Mara Law, PC, Mr. Tony Roberts. She also
co-wrote an amicus brief on behalf of CAOC in Williams v. Superior Court (2017) 3 Cal.5th
531.
Ms. Serb oversees all aspects of the cases assigned to her and litigates these cases with the}
assistance of Mr. Roberts. Ms. Serb oversees Mr. Roberts’ work. Ms. Serb routinely writes
and opposes motions and argues at hearings. Ms. Serb edits motions written by Mr. Roberts
and other associates; drafts and revises discovery propounded on employers; communicates
with clients; communicates with class members; communicates with co-counsel;|
communicates with defense counsel; drafts and revises notices to the Labor and Workforce
Development Agency pursuant to the Private Attorneys General Act of 2004; creates exhibits
for use in cases; reviews documents produced by employers; deposes employer witnesses;
defends client depositions; attends mediations; drafts, reviews, and revises settlement
agreements; drafts, reviews, and revises settlement approval motions; argues at hearings on|
settlement motions; and oversees all day to day work in her cases.
court granting a motion for class certification: William Smith v. Werner Enterprises, Inc. d/b/a
C.L. Werner, Inc, (District of Nebraska, Case No. 8:15-cv-287) and Thomas Perez v. City of
San Diego (San Diego County Superior Court, Case No. 37-2014-00016621-CU-OE-CTL).
In 2016, Ms. Serb tried a case in New Orleans, Louisiana, involving claims under the Defense|
Base Act, which lasted a full day. In 2017, Ms. Serb assisted me in a maritime/employment|
related trial in federal court that lasted one week.
Tony Roberts solely handles wage and hour class actions and PAGA lawsuits. Mr. Roberts
graduated from the University of San Diego School of Law where he merited honors in class
action studies and performed independent studies on class actions. Mr. Roberts extemed at the!
United States District Court for the Honorable Mitchell D. Dembin. Mr. Roberts was admitted|
to practice law in California in June 2017. Mr. Roberts has been litigating wage and hour class|
“DECLARATION OF DAVID MARA, ESQ. 5 Case No. CGC-18-56990922.
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actions for over two (2) years. Mr. Roberts received his training in wage and hour class action
and PAGA lawsuits while at Mara Law Firm, PC. Mr. Roberts has been at the Mara Lay
Firm, PC, for approximately two (2) years. Mr. Roberts is also an adjunct professor of law at
the University of San Diego School of Law.
Mr. Roberts routinely writes and opposes motions, drafts complaints, appears before the Court
at law and motion and settlement hearings; engages in the discovery process, including!
drafting Belaire West notices and meet and confer letters; deposes witnesses and defends
depositions. Mr. Roberts also communicates with clients, communicates with class members|
and defense counsel. Mr. Roberts works with Ms. Serb in litigating class action and PAGA|
action cases and advancing the day to day litigation of these cases.
The proposed settlement is the product of serious, informed, non-collusive negotiations, has
no obvious defects, does not improperly grant preferential treatment to the class representative,
or segments of the class and falls within the range of fair and reasonable settlements. I believe
that this non-reversionary settlement is in the best interests of the class as fair, reasonable, and|
adequate. Therefore, I recommend approval of the settlement.
This class action was filed on September 19, 2018 and amended on or around September 26,
2019. The amended complaint, on behalf of all similarly situated class members, raises causes
of action alleging Blue Bus failed to pay all straight and overtime wages, failed to provide
meal and rest breaks, failed to pay all wages due at the time of termination, failed to reimburse
business expenses, knowingly and intentionally failed to comply with wage statement]
provisions, and violated the Unfair Competition Law.
The Parties propounded special interrogatories and demands for production of documents, and
took the deposition of Defendant’s Person Most Qualified, Bryan Young. The Parties further]
exchanged data and information to prepare for a private mediation with Mark Rudy. Blue Bus
produced thousands of documents, including personnel records of putative class members.
payroll and time records, financial records, employee handbooks, trip sheets, wage and houy
policies and correspondence thereon. In addition, Plaintiff's counsel conducted numerous
interviews with putative class members and had Blue Bus’s finances evaluated by an expert
: DECLARATION OF DAVID MARA, ESQ. 6 Case No, CGC-18-56990926.
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under a protective order.
The gravamen of Plaintiff’s claims is that Blue Bus failed to provide timely control-free meal}
and rest breaks to employees in violation of Labor Code sections 512 and 226.7, Wage|
Orders, Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, and Augustus v|
ABM Security Services, Inc. (2016) 2 Cal.Sth 257. Based upon Plaintiffs investigations.
Plaintiff contends — and Blue Bus disputes — that Class Members are always subject to
Defendant’s control and command during meal and rest breaks. Plaintiff alleges that Blue Bus
has uniform policies which require Class Members to remain on-duty during meal and rest
breaks, attending to Blue Bus’s vehicles and customers at all times or face progressive
disciplinary action. In addition, Plaintiff asserts Blue Bus required class members to remain]
available at all times to respond to customer inquiries whether in person or by telephone, with
no abatement of these responsibilities during meal and rest breaks. Plaintiff asserts that these
policies deprive employees of legally compliant meal and rest breaks.
Blue Bus denies Plaintiff's claims in their entirety. Blue Bus asserts that its meal and rest!
break policies fully comply with California law and that its meal and rest break practices are
communicated to Class Members. Further, Blue Bus contends that Class Members are
relieved of all duties during meal and rest breaks. Blue Bus argues that its meal and rest break!
policies relieve Class Members of all duties and that Class Members are not required to
respond to Blue Bus or customer inquiries during breaks, needing only to return any calls
received during this time promptly once they return from break. Plaintiff further contends
and Blue Bus denies — that Blue Bus does not pay Class Members for time spent during 30-
minute unpaid meal breaks, attending to their vehicles and responding to Blue Bus and|
customer inquiries during that time. Plaintiff further alleges that Defendant’s failure to pay all
hours worked exposes Blue Bus to additional liability for waiting time penalties and wage,
statement violations.
Blue Bus also denies having not paid Class Members for all time worked. Blue Bus argues|
that it paid Class Members for all hours they reported to Blue Bus, including any time spent
working during meal breaks. Blue Bus argues that any time Class Members allegedly spent
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working while “off-the-clock” was prohibited and Blue Bus had no constructive or actual
knowledge of such “off-the-clock” work. As a result, Blue Bus argues that it owes no unpaid!
wages or derivative waiting time penalties and wage statement violations. Furthermore, Blue
Bus argues that to be successful on the waiting time penalty claim, Plaintiff will have to}
demonstrate that Blue Bus knowingly and intentionally did not pay wages to employees whol
terminated their employment with Defendant. Blue Bus argues it had a good faith defense that
it had no actual or constructive knowledge of any “off-the-clock” work being done, and thus
would not be liable for waiting time penalties. See Alonzo v. Maximus, Inc. (C.D. Cal. 2011
832 F.Supp.2d 1122, 1133-34 (granting summary judgment on Section 203 claim because
employer’s ‘presentation of a good faith defense, based in law or fact.. .negate[s] a finding of
willfulness’).
Blue Bus also argues that Plaintiff's derivative claim for wage statement penalties undey
Labor Code § 226 requires only that an employer report on a wage statement the wages
actually paid to an employee, not what an employee asserts should have been paid. See Soto v.
Motel 6 Operating, L.P. (2016) 4 Cal-App.Sth 385, 392 (the purpose of Section 226 is to
require employers to “document the paid wages to ensure the employee is fully informed|
regarding the calculation of those wages”); Maldonado yv. Epsilon Plastics, Inc. (2018) 22|
Cal.App.Sth 1308, 1337. Blue Bus further argues that, for Plaintiff to succeed with his claims
he would have to ask each Class Member what they thought the practices regarding meal and|
rest breaks were regarding being on-duty versus off-duty, whether they understood their meall
and rest breaks were off-duty and voluntarily decided to take their meal and rest breaks within]
the bus, and whether and why employees worked “off-the-clock” and did not report the time
to management. As a result, Blue Bus argues that individualized issues would predominate]
and Plaintiff would be unable to achieve or maintain class certification.
In addition, Plaintiff argues that Class Members were required to use their own personal
cellphones to make and receive calls to/from Blue Bus and customers, entitling Class
Members to reimbursement of a portion of their cellphone bill. Blue Bus argues that any such|
business use of these personal cellphones was not reasonable or necessary, given that Class
: ‘DECLARATION OF DAVID MARA, ESQ. 8 Case No. CGC-18-569909eo eo IN A HW RF YW NY
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Members had radios to contact Blue Bus. Any business use of Class Members’ personal
cellphones was made out of Class Members” convenience, of which Blue Bus argues it wil
not be held liable. See Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4" 554, 568 (the
employer may “consider not only the actual expenses that the employee incurred, but also}
whether each of these expenses was ‘necessary,’ which in turn depends on the reasonableness
of the employee’s choices.”).
Blue Bus also argues that, if the litigation continued, it would pursue compelling arbitration,
as Plaintiff and Class: Members signed arbitration agreements. Although Plaintiff believes i
would have strong counter arguments and Blue Bus would not be successful in compelling!
arbitration, the law favors arbitration and Plaintiff could lose his arguments, resulting in this
matter being sent to individual arbitration.
Plaintiff also had to consider that if certification'is not granted, the Class Members would get
nothing. Further, if Blue Bus prevails on the merits, the damage exposure for these claims
would be zero. Blue Bus also argues that if litigation continued, it would be forced to file for
bankruptcy, contending that it would be unable to remain in business while defending agains!
the lawsuit, let alone be able to meet its obligations under a judgment in favor of Plaintiff and
the Class. Accordingly, as there is a risk these claims may not be certified and that the
factfinder could disagree with Plaintiff's arguments, Plaintiff had to consider the possibility of
neither certifying nor prevailing on his claims, as well as Blue Bus’s likelihood of becoming
insolvent and unable to litigate these claims to a favorable judgment or-pay said judgment.
These reasons led Plaintiff to discount his claims and agree to this Settlement.
The Parties attended mediation with respected wage and hour mediator, Mark Rudy. The case}
did not settle at mediation, and the Parties continued to negotiate the Settlement and werel
ultimately able to come to an agreement, the terms of which are finalized in the Joint
Stipulation and Settlement Agreement.
These litigation costs will be tabulated and presented to the Court at final approval. Plaintiff
will only seek the amount of actual costs incurred. If the amount requested is less than the|
amount actually incurred, the remainder will be added to the NSA for distribution to
“DECLARATION OF DAVID MARA, ESQ. 9 Case No. CGC-18-569909Cm nN A nA FF YW YY
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Participating Class Members.
After all Court-approved deductions from the GSA, it is estimated that $216,800.00 (“Nef
Settlement Amount” or “NSA”), less all applicable employer payroll and employee taxes, will]
be distributed to Participating Class Members. Subject to the terms and conditions of the
Agreement, ILYM will calculate and issue individual settlement payments based on the
following formula:
Individual Settlement Share Calculation. Each Participating Class Member will
receive a proportionate share of the Net Settlement Amount that is equal to (i) the
number of weeks he or she worked for Defendant in California based on the Class data
provided by Defendant, divided by (ii) the total number of weeks worked by all
Participating Class Members based on the same Class data, which is then multiplied
by the Net Settlement Amount. One day worked in a given week will be credited as a
week for purposes of this calculation. Therefore, the value of each Class Member’s
Individual Settlement Share ties directly to the amount of weeks that he or she worked.
(See Mara Dec., Exh. 1, at page 7, paragraph F(1)).
The precise number of compensable weeks worked per Class Member will not be known until
Blue Bus has tabulated them, following preliminary approval of the Settlement. Under no
circumstance will any portion of the settlement revert to Defendant.
ILYM’s bid for administering this settlement to 125 class members currently totals onl
$7,014.38. It is not expected to increase substantially, if at all. However, any difference]
between the allotted amount and the amount ILYM actually incurs in administering this
settlement will become part of the Net Settlement Amount, distributable to Participating Class
Members.
Within seven (7) business days after the entry of the Preliminary Approval Order, Blue Bus
shall deliver to the Settlement Administrator an electronic database, which will list for each|
Class Member: (1) first and last name; (2) last known mailing address; (3) social security|
number; (4) hire and termination dates; and (5) the total number of weeks during which the|
Class Member performed any actual work during the Class Period as a member of the Class
(“Database”). If any or all of this information is unavailable to Defendants, Defendants will so}
inform Class Counsel and the Parties will make their best efforts to reconstruct or otherwise}
agree upon how to deal with the unavailable information. ILYM will conduct a skip trace foy
DECLARATION OF DAVID MARA, ESQ. 10 Case No. CGC-18-56990938.
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the address of all former Defendants employee Class Members. The Database shall be based|
on Defendants’ payroll, personnel, and other business records. The Settlement Administrator
shall maintain the Database and all data contained within the Database as private andi
confidential.
Within fourteen (14) business days after entry of the Preliminary Approval Order, ILYM will
mail the Class Notice to all identified Class Members via first-class regular U.S. Mail, using
the mailing address information provided by Blue Bus and the results of the skip trace
performed on all former employee Class Members. Class Members will have forty-five (45
days from the date of mailing to request exclusion from or object to the settlement. Should)
more than 15% of the Class request exclusion from the Settlement, Blue Bus will have the
option to void the Settlement.
Within nine (9) months after the Effective Final Settlement Date or by August 31, 2020.
whichever is later, Blue Bus shall wire to ILYM the GSA. Within seven a” calendar days
after Blue Bus funds the settlement, ILYM will disburse: (1) all Individual Settlement Shares
to Participating Class Members; (2) the Attomey Fee Award and Cost Award to Class
Counsel for attomeys’ fees and costs, as approved by the Court; (3) the Class Representative,
General Release Payment to Class Representative David Alley, as approved by the Court; (4)
the Administration Costs to ILYM, as approved by the Court; and (5) Defendant’s portion of
payroll taxes as the Class Members’ current or former employer.
Participating Class Members must cash or deposit their Individual Settlement Share checks
within one-hundred eighty (180) days after the checks are mailed to them. ILYM will pay|
over the amount represented by any uncashed check to the cy pres beneficiary, pursuant to
California Code of Civil Procedure § 384. The Parties chose The United Way of California as
the cy pres beneficiary, as it is a non-profit organization that supports projects that benefits
employees and applicants throughout the State of California. The Parties agree thal
designating The United Way as the cy pres beneficiary will “further the purposes of the
underlying class proceedings in this action and will promote justice for all Californians,” inl
conformity with California Code of Civil Procedure § 384.
DECLARATION OF DAVID MARA, ESQ. I Case No. CGC-18-569909oe ND HW Bw DN |
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In exchange for a settlement payment, Class Members are informed that, by accepting the|
payment, they release all known and unknown claims, including recovery period, unpaid!
wage, missed breaks, failure to provide sick leave, inaccurate wage statements, unreimbursed|
expenses, that were alleged or that could have been alleged based on the facts of the
complaints filed in the matter. The release will be as to the released parties, which shall
include Defendant and its respective parent companies, subsidiaries, affiliates, present and
former owners, shareholders, members, agents (including, without limitation, any investmen
bankers, accountants, insurers, reinsurers, attorneys, licensees and licensors, related!
companies, and any past, present or future officers, directors and employees) predecessors,
successors, and assigns (“Released Parties”).
The Settlement was reached as a result of arm’s-length negotiations. Though cordial and|
professional, the settlement negotiations have been, at all times, adversarial and non-collusive|
in nature. Counsel for the Parties conducted arm’s length settlement negotiations through al
neutral mediator and continued negotiations for months until the settlement was reached,
While Plaintiff believes in the merits of his case, he also recognizes the inherent tisks off
litigation and understands the benefit of the Class receiving significant settlement funds
immediately as opposed to risking continued litigation in achieving class certification, the
merits of the case before and after trial, the damages awarded, the risk of Defendant becoming|
insolvent, the risk of compelled individual arbitration, and/or an appeal that can take several|
more years to litigate.
Plaintiff's counsel has prosecuted numerous cases on behalf of employees for Californial
Labor Code violations and thus are experienced and qualified to evaluate the class claims and|
to evaluate settlement versus trial on a fully informed basis, and to evaluate the viability of the
defenses. This experience instructed Plaintiffs counsel on the risks and uncertainties of
further litigation and guided their determination to endorse the proposed settlement.
The proposed settlement was only possible following discovery, an evaluation of Defendants’
relevant policies and procedures, as well as the data that Defendants produced for the putative
Class, which permitted Class Counsel to engage in a comprehensive analysis of liability and
DECLARATION OF DAVID MARA, ESQ. 2 Case No. CGC-18-569909co em YN DH BF YW NY
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48.
potential damages. This discovery resulted in Plaintiffs central theories of liability, which arel
predicated on Plaintiffs claims that Defendants fail to provide duty-free meal and rest breaks.
In addition to being able to discover the strengths and vulnerabilities associated with
Plaintiff's claims, Blue Bus provided Plaintiff with statistical information regarding the
putative class. Blue Bus indicated that there are approximately 125 total class members who
worked for Blue Bus and approximately 57 former class members who have terminated their
employment at some time during the Class Period. Plaintiff calculated that these class
members worked approximately 34,777 shifts during the Class Period and used Plaintiff's
hourly $21.25 rate of pay to calculate Blue Bus’s exposure.
For the reasons discussed above, Plaintiff contends Blue Bus does not provide legal
compliant meal and rest breaks. Based on Plaintiff's contentions, Class Members would be
entitled to two premiums under California Labor Code § 226.7 per shift (one premium for a
meal break violation and one premium for a rest break violation per day). Accordingly, Blue
Bus’s maximum exposure under Plaintiff's meal and rest break claims is $1,478,022.51
[34,777 (total shifts in Class Period) x $21.25 (hourly rate) x 2 violations per day (one meal]
and one rest break violation)].
In addition, Plaintiff contends that Blue Bus is also liable for time Class Members spen
working during 30-minute unpaid meal breaks, but were not paid. Accordingly, Blue Bus’s
maximum exposure under Plaintiff's unpaid wages claim is $369,505.62 [34,777 (total shifts)
in Class Period) x 0.5 (30-minutes per shift) x $21.25 (hourly rate)]. Assuming Plaintiff was
successful in proving his derivative waiting time penalty claim, Blue Bus’s maximum
exposure under this claim is $290,700.00. Likewise, Blue Bus’s maximum exposure for
derivative wage statement violations would be $400,000.00 [$4,000 maximum penalty x 100]
employees]. Plaintiff also evaluated a claim for reimbursement of business expenses for the}
business use of personal cellphones for work related calls and messages, calculated Blue|
Bus’s maximum exposure at $63,240.00 [62 months in Class Period x $15 x 68 current
drivers at any time]. Thus, Blue Bus’s total maximum exposure is $,601,468.12.
Waiting time penalties are equal to thirty (30) days’ worth of wages. Blue Bus’s maximu
“DECLARATION OF DAVID MARA, ESQ. 13 Case No. CGC-18-569909oe yn DA WF WN
49.
50.
S1
52.
53.
54,
. Plaintiff seeks approval of the following Class for settlement purposes only: All employees
exposure would be approximately $290,700 [8 hours an average day x $21.25/hour x 30 day:
x approximately 57 former employees], if every single employee were to recover waiting time
penalties.
Plaintiff figured 15% of an average $100 cellphone bill ($15) should have been paid by|
Defendant throughout the Class Period would reimburse Class Members for text messages
and sporadic business-related calls received/made via their personal cellphones.
Should the Court agree with any of Blue Bus’s defenses to certification or on the merits, om
compel Plaintiff to arbitration, the potential exposure would be dramatically reduced, if noj
extinguished entirely. In addition, Plaintiff also had to consider that, should the Court agre¢
with Plaintiffs theories of liability, grant certification, as well as agree with Plaintiff's
defenses to arbitration, Plaintiff may not be awarded the full exposure for these claims at trial|
Furthermore, Plaintiff also had to evaluate the likelihood that Blue Bus would become
insolvent over the course of this litigation, preventing Plaintiff from reaching a favorable
judgment or be unable to meet its obligations under a judgment favorable to Plaintiff and the
Class. In light of Blue Bus’s defenses, supporting evidence, arbitration agreements, counter]
arguments to certification, and likelihood of declaring bankruptcy, the Settlement amount off
$400,000.00 is a reasonable and fair settlement.
who are or were employed by Blue Bus Tours, LLC as hop on/hop off drivers, charter drivers,
per capita or charter drivers and any other types of drivers in California at any time during the
Class Period.
Here, Blue Bus’s records show that the proposed settlement Class has approximately 125]
class members.
Plaintiff seeks the same legal remedies under state law on behalf of himself and all Class
Members.
Plaintiff alleges Blue Bus’s policies applied to all Class Members. Factual differences ma:
exist between Plaintiff's and the Class Members so long as the claims arise from the same
events or course of conduct and are based on the same legal theories.
“DECLARATION OF DAVID MARA, ESQ. 4 Case No. CGC-18-56990955. Plaintiff contends those standards are met here. Plaintiff does not have any conflicts of interest!
with the settlement Class. He has been and continues to be committed to vigorousl:
prosecuting this case. If any Class Member wishes to opt-out of the Settlement, he or she may
do so. Therefore, there is no conflict of interest between Plaintiff and the Class Members.
56. A true and correct copy of the Joint Stipulation and Settlement Agreement is attached hereto
as Exhibit 1. A true and correct copy of the proposed Class Notice is attached to Exhibit 1 as
Exhibit A.
I hereby declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Dated: January 31, 2020 . =
. i
Z
Dayid Mafia, Fsq,
Attoitiey for Plaintiffs
“DECLARATION OF DAVID MARA, ESQ. 15 Case No. CGC-18-569909JOINT STIPULATION AND SETTLEMENT AGREEMENT
Subject to final approval by the Court, this Settlement Agreement is between DAVID
ALLEY (“Plaintiff”), and Defendant BLUE BUS TOURS, LLC (“Defendants” or “BLUE
BUS”). Plaintiff and Defendant collectively are referred to in this Agreement as the
“Parties,”
1
DEFINITIONS
In addition to the other terms defined in this Agreement, the terms below have the
following meaning:
A.
B.
L
J.
Administration Costs: The costs incurred by the Settlement Administrator to
administer this Settlement, which shall not exceed $20,000.00. All
Administration Costs shall be paid from the Gross Settlement Amount.
Agreement, Settlement Agreement, Joint Stipulation, or Settlement: The
settlement agreement reflected in this document, titled “Joint Stipulation and
Settlement Agreement.”
Attorney Fee Award: The amount, not to exceed 33 1/3% of the Gross
Settlement Amount or $133,200.00, finally approved by the Court and awarded
to Class Counsel. The Attorney Fee Award shall be paid from the Gross
Settlement Amount and will not be opposed by Defendant.
Class: All employees who are or were employed by Blue Bus Tours, LLC as
hop on/hop off drivers, charter drivers, per capita or charter drivers and any
other types of drivers in California at any time during the Class Period.
Class Action: The proceeding pending in San Francisco County Superior
Court, Case No. CGC-18-569909,
Class Counsel: David Mara, Jamie Serb, and Tony Roberts of Mara Law Firm,
PC.
Class Member: Each person eligible to participate in this Settlement who is a
member of the Class as defined above.
Class Notice or Notice: The Notice of Class Action Settlement, substantially
similar to the form attached hereto as Exhibit A, subject to Court approval.
Class Period: The time period from September 19, 2014 to the date of the
Preliminary Approval Order. ,
Class Representative or Plaintiff: David Alley.Class Representative General Release Payments: The amount the Court
awards to Plaintiff for his execution of a broader general release of claims
against Defendant than Participating Class Members, which will not exceed
Ten Thousand Doliars and No Cents ($10,000.00). This payment shall be paid
from the Gross Settlement Amount and will not be opposed by Defendant and
is being offered in consideration for the Plaintiff executing a general release of
claims against Defendant, a release that is broader than any Participating Class
Member will provide in consideration for a settlement share.
Cost Award: The amount that the Court orders Defendant to pay Class Counsel
for payment of actual litigation costs, which shall not exceed Twenty Thousand
Dollars and No Cents ($20,000.00). The Cost Award will be paid from the GSA
and will not be opposed by Defendant. The Cost Award is subject to Court
approval. If the Court awards less than the amount requested, any amount not
awarded will become part of the Net Settlement Amount for distribution to
Participating Class Members.
Counsel for Defendant: April Glatt of Chauvel & Glatt, LLP.
Defendant or Blue Bus: Blue Bus Tours, LLC.
Effective Final Settlement Date: The effective date of this Settlement will be
when the final approval of the settlement can no longer be appealed, or, if there
are no objectors, all objections have been withdrawn, and no plaintiffs in
intervention at the time the court grants final approval of the settlement, the date
the court enters judgment granting final approval of the settlement.
Employer Taxes: Defendant’s employer’s share of payroll taxes as the current
or former employer (including the employer’s payment of applicable FICA,
FUTA, and SUI contributions, etc.) will be paid out of the Gross Settlement
Amount.
Final Judgment or Final Approval: The final order entered by the Court
finally approving this Agreement.
First Amended Complaint: Prior to filing a motion for Preliminary Approval,
the Parties will file a stipulation to amend the complaint for purposes of
removing Arya Khosravi as a Class Representative.
Gross Settlement Amount or GSA: The total value of the Settlement is a non-
reversionary Four Hundred Thousand Dollars and Zero Cents ($400,000.00).
This is the gross amount Defendant can be required to pay under this Settlement
Agreement, which includes without limitation: (1) the Net Settlement Amount
to be paid to Participating Class Members; (2) the Attorney Fee Award and Cost
Award to Class Counsel for attorneys’ fees and costs, as approved by the Court;
(3) the Class Representative General Release Payments paid to the ClassRepresentatives, as approved by the Court; (4) the Administration Costs, as
approved by the Court; and (5) Employer Taxes. No portion of the Gross
Settlement Amount will revert to Defendant.
Individual Settlement Share(s): The amount payable to each Participating
Class Member under the terms of this Settlement Agreement. Class Members
are not required to submit a claim form to receive their Individual Settlement
Shares pursuant to this Agreement. All Participating Class Members will
receive an Individual Settlement Share automatically, without the return of a
claim form.
Net Settlement Amount or NSA: The total amount of money available for
payout to Participating Class Members, which is the GSA less the Attorney Fee
Award, Cost Award, Class Representative General Release Payment, Employer
Taxes and Administration Costs. In other words, the NSA is the portion of the
GSA that will be distributed to Class Members who do not request exclusion
from the Settlement and who have not already settled their claims against
Defendant. The payment of employee-side taxes on the portion of the settlement
shares earmarked as wages shall be paid out of the Net Settlement Amount as
well as Employer Taxes. Thus, the individual settlement shares that are paid out
of the Net Settlement Amount shall be reduced by the employee’s tax liability
for the share.
PAGA: The California Labor Code Private Attorneys General Act of 2004
(Cal. Labor Code §§ 2698 et seq.).
PAGA Action: The San Francisco County Superior Court, Case No. CGC-17-
563222, alleging violation of the Private Attorney General Act of 2004 for:
(1) failure to pay straight, regular rate wages for all work performed; (2)
failure to pay all overtime wages; (3) failure to keep time records of meal
breaks; (4) failure to provide meal periods; (5S) failure to provide rest
periods; (6) failure to provide recovery periods; (7) failure to pay wages
due at termination and during employment; (8) failure to provide sick
days; (9) knowing and intentional failure to comply with itemized
employee wage statements; and (10) failure to reimburse expenses in
discharging duties, was dismissed with prejudice on July 7, 2019 leaving
only the Class case matter.
Participating Class Members: All Class Members who do not submit a valid
and timely request to exclude themselves from this Settlement.
Parties: Plaintiff David Alley, as an individual and as a Class Representative,
and Defendant Blue Bus Tours, LLC.
Preliminary Approval or Preliminary Approval Order: The Court’s order
preliminarily approving the proposed Settlement.AA.
BB.
cc,
DD.
EE.
FF.
Released Claims: Putative class members who do not opt out of the settlement
will release all known and unknown claims, including recovery period, unpaid
wage, missed breaks, failure to provide sick leave, inaccurate wage statements,
unreimbursed expenses, that were alleged or that could have been alleged based
on the facts of the complaints filed in the matter. The release will be as to the
released parties, which shall include Defendant and its respective parent
companies, subsidiaries, affiliates, present and former owners, shareholders,
members, agents (including, without limitation, any investment bankers,
accountants, insurers, reinsurers, attomeys, licensees and licensors, related
companies, and any past, present or future officers, directors and employees)
predecessors, successors, and assigns.
Released Parties: Defendant and its past, present and/or future, direct and/or
indirect, officers, directors, owners, employees, representatives, administrators,
attomeys, agents, parent companies, subsidiaries and affiliated corporations and.
entities, licensees and licensors, related companies, consultants, shareholders,
joint ventures, predecessors, successors, and/or assigns.
Response Deadline: Forty-five (45) calendar days from the initial mailing of .
the Notice.
Setttement Administration: The Settlement Administrator will conduct a skip
trace for the address of all former employee Class Members. The Settlement
Administrator will mail the Notice by first class U.S. mail to all Class Members
at the address Defendant has on file for those Class Members and to all former
employee Class Members at the address resulting from the skip trace. The
Notice will inform Class Members that they have until the Response Deadline
to either object to the Settlement or to opt-out of the Settlement. Any Class
Member who does not receive Notice after the steps outlined above have been
taken will still be bound by the Settlement and/or judgment. The Settlement
Administrator will also disburse the settlement as agreed to in this Agreement.
Settlement Administrator: The third party administrator agreed upon by
Parties to administer this Settlement is ILYM Group, Inc.
Superior Court: San Francisco County Superior Court.
Il ‘RECITALS
A.
The Class Action was filed by Plaintiffs Arya Khosravi and David Alley in the
San Francisco Superior Court on September 19, 2018. The Class Action was
subsequently stayed per stipulation of the Parties, pending global mediation of
the PAGA Action, Class Action and other related cases.Plaintiff propounded two sets of special interrogatories and one set of demands
for production of documents to which Defendant responded. Thereafter,
Plaintiff conducted the deposition of Brian Young, Defendant’s Person Most
Qualified.
Defendant propounded general form interrogatories, employment form
interrogatories, one set of special interrogatories and requests for production of
documents to which Plaintiff responded. The Parties met and conferred
extensively over discovery responses, resulting in supplemental responses,
noticed motions to compel, and continued hearings thereon.
In addition, Plaintiff reviewed a substantial amount of data and hundreds of
pages of documents relating to the size and scope of the class that permitted an
evaluation of the class-wide claims.
The parties attended mediation with Mark Rudy on February 7, 2019. The
matter did not settle at the mediation. However, the parties continued to
negotiate at arms-length in the following months and reached an agreement in
principle to settle the case, the terms of which are reflected herein.
Benefits of Settlement to Class Members. Plaintiff and Class Counsel
recognize the expense and length of continued proceedings necessary to
continue the litigation against Defendant through trial and through any possible
appeals. Plaintiff and Class Counsel also have taken into account the
uncertainty and risk of further litigation, the potential outcome, and the
difficulties and delays inherent in such litigation. Plaintiff and Class Counsel
have conducted extensive settlement negotiations. Based on the foregoing,
Plaintiff and Class Counsel believe the Settlement set forth in this Agreement
is a fair, adequate, and reasonable settlement, and is in the best interests of the
Class Members.
Defendant’s Reasons for Settlement. Defendant recognizes that the defense
of this litigation will be protracted and expensive. Substantial amounts of time,
energy, and resources of Defendant has been and, unless this Settlement is
made, will continue to be devoted to the defense of the claims asserted by
Plaintiffs. Defendant, therefore, has agreed to settle in the manner and upon the
terms set forth in this Agreement to put to rest the Released Claims.
Defendant’s Denial of Wrongdoing. Defendant generally and specifically
denies any and all liability or wrongdoing of any sort with regard to any of the
claims alleged, makes no concessions or admissions of liability of any sort, and
contends that for any purpose other than settlement, the Class Action is not
appropriate for class treatment. Defendant asserts a number of defenses to the
claims, and has denied any wrongdoing or liability arising out of any of the
alleged facts or conduct in the Action. Neither this Agreement, nor any
document referred to or contemplated herein, nor any action taken to carry outI
I.
A.
this Agreement, is or may be construed as, or may be used as an admission,
concession, or indication by or against Defendant or any of the Released Parties
of any fault, wrongdoing, or liability whatsoever. There has been no final
determination by any court as to the merits of the claims asserted by Plaintiff
against Defendant or as to whether a class or classes should be certified, other
than for settlement purposes only. If this settlement is not approved, no
statements made in this document may be used against Defendant in any
pleading filed with any court in
Preview
ORIGINAL By Fax N ° oO IY DH PF WN eS a a a a a ea Cnn ansrR BN SF S yoN NON BUR RERRE David Mara, Esq. (230498) F I L K D Jamie Serb, Esq. (289601) Supérior Couft of California Tony Roberts (315595) “County of Sa Francisco MARA LAW FIRM, PC FEB 0 5 2020 2650 Camino Del Rio North, Suite 205 . COURT San Diego, California 92108 CLER Fy By: Facsimile: (619) 234-4048 ¥ Capa Ge Telephone: (619) 234-2833 Attorneys for DAVID ALLEY, on behalf of himself, all others similarly situated, and on behalf of the general public. SUPERIOR COURT FOR THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO DAVID ALLEY, on behalf of himself, all | Case No. CGC-18-569909 others similarly situated, and on behalf of the general public, [Assigned for all purposes to Hon. Anne-Christine . Massullo] Plaintiff, DECLARATION OF DAVID MARA, ESQ. IN v. SUPPORT OF PLAINTIFF’S MOTION FOR . PRELIMINARY APPROVAL OF CLASS ACTION Snot 100, ieee and DOES 1 SETTLEMENT; CONDITIONAL CERTIFICATION; APPROVAL OF CLASS Defendants. NOTICE; AND SETTING OF FINAL APPROVAL HEARING DATE Date: March 19, 2020 Time: 9:15 AM Dept: 304 Judge: Hon. Anne-Christine Massullo Action Filed: September 19, 2018 Trial date: None set DECLARATION OF DAVID MARA, ESQ. Case No. CGC-18-569909NY Dw I, DAVID MARA, declare as follows: 1. I am President of Mara Law Firm, PC and counsel of record for Plaintiffs and the putative class in this matter. I am duly admitted to practice before all the courts of the state of California. The following facts are within my personal knowledge and, if called to testify, 1 could and would competently testify thereto. I have been practicing law in California since 2004. I extensively handle employment cases which involve violations of the California Labor Code and Industrial Welfare Commission Wage Orders, such as wage and hour class actions and cases alleging violations of the Private Attomeys General Act of 2004 (“PAGA”). I was co-class counsel in Hohnbaum v. Brinker Restaurant Corp., San Diego Superior Court, Case No. GIC834348, which was the underlying case in the California Supreme Court’s landmark decision in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, in which the California Supreme Court delineated the scope of employer obligations to provide, and employee rights to receive, meal and rest periods under California law. I wrote an Amicus brief on behalf of Consumer Attorneys Of California (“(CAOC”) in the recent decision by the California Supreme Court in Augustus v. ABM Security Services, Inc. (2016) 2 Cal.Sth 257 (rest breaks must be duty-free and time spent being on call during rest breaks is not considered duty-free). My firm also wrote an Amicus brief on behalf of CAOC in the recent decision by the Califomia Supreme Court in Williams v. Superior Court (2017) 3 Cal. Sth 531 (PAGA and wage and hour class action). My firm has been granted class certification in both state and federal courts. I am also Plaintiffs counsel in a host of other class actions involving violations of California’s wage and hour laws, many of which involve the transportation industry. For example, I have been and am involved as counsel for plaintiffs in the following sampling of class action cases involving wage and hour violations under California law: Davis v. Apria Healthcare Group (Case No. 37-2015-00007743); Norona v. B&G Delivery System, Inc. (Case No. RG1577005); Perez v. City of San Diego (Case No. 37-2014-00016621); Cuellar- “DECLARATION OF DAVID MARA, ESQ. 1 Case No. CGC-18-569909 |om YN DH RB BN NN NN BY Be Be eB we ew ewe ew 10. Ramirez v. US Foods, inc. (Case No. RG15770766); Peron v. The Vons Companies, Inc. (Case No. 15-cv-01567-L-JMA); Hilderbrand v. LinkUs Enterprises, LLC (Case No| DR150155); Belton v. Pacific Pulmonary Services (Case No. CGC-15-547564); Medina y| Central Cal Transportation, Inc, (Case No. RG15770011); Eure v. Dotson v. Asbury Environmental Services (Case No. RG16842620); Spikes v. Bear Trucking, Inc. (Case No] 16CECG02389); Reynoso v. Benjamin's Transfer, Inc. (Case No. FCS048845); Montes y, Coram Specialty Infusion Services, Inc. (Case No. 37-2016-00028950-CU-OE-CTL); Rodriguez v. Delta Sierra Beverage, LLC (Case No. 34-2017-00206727); Clavel v. La Jolla Beach & Tennis Club, Inc. (Case No. 37-2017-00004802-CU-OE-CTL); Martin v. Sysco| Central California, Inc. (Case No. 9000052). Mara Law Firm, PC (formerly The Turley & Mara Law Firm, APLC) devotes a significant portion of its practice specifically to wage and hour class actions. A majority of the cases || handle are wage and hour class actions and actions filed pursuant to the Private Attorneys General Act of 2004 (“PAGA”). Ms. Serb and Mr. Roberts solely handle wage and hour class| actions and PAGA actions. Mara Law Firm, PC, has been appointed class counsel i numerous federal and state class actions. Mara Law Firm, PC, and its lawyers have handled| over three hundred and fifty (350) class action and PAGA: lawsuits. Mara Law Firm, PC, and/ its lawyers have successfully settled over one hundred (100) cases over a period off approximately fifteen (15) years, resulting in the recovery of millions of dollars for class members. Mara Law Firm, PC, is well versed in wage and hour class action law. Specifically, Mara La Firm, PC, has obtained class certification and has been certified as class counsel in the following cases: Mario Norona v. B&G Delivery System, Inc. (Sacramento County Superioy Court, Case No. 34-2015-00186826-CU-OE-GDS); Jerald Schroeder v. YRC, Inc.; YRC| Worldwide, Inc. (Central District of California, Case No. 12-cv-01374-TJH); John Martin v\ Sysco Corporation; Sysco Central California, Inc. (Eastern District of California, Case No. 1:16-cv-00990-DAD-SAB); William Smith v. Werner Enterprises, Inc. d/b/a C.L. Werner, Ine. (istrict of Nebraska, Case No. 8:15-cv-287), and Thomas Perez v. City of San Diego (Sani DECLARATION OF DAVID MARA, ESQ. 2 Case No. CGC-18-56990911. 12, 13. 14. Diego County Superior Court, Case No. 37-2014-00016621-CU-OE-CTL). In addition, Mara Law Firm, PC, filed and fully briefed class certification motions before the following cases were settled: Alton Davis v. Apria Healthcare Group, Ine. (San Diego County, Superior Court, Case No. 37-2014-00004724); Rick Frieri v. Sysco Corporation; Sysco San Diego, Inc. (Southern District of California, Case No. 16-cv-1432-JLS-NLS); Alberto Solan and Damon Randall v. Professional Auto Transport, Inc. (San Bernardino County Superioy Court, Case No. CIVDS1619020); Richard Terry v. Hoovestol, Inc. (Northern District of California, Case No. 3:16-cv-05183-JST); and Kristina McConville v. Renzenberger, Inc| (Central District of California, Case No. 2:17-cv-02972-FMO-JC). . L have litigated over three hundred and fifty (350) class action and PAGA lawsuits. I have been litigating wage and hour class action lawsuits for approximately fifteen (15) years. ]] graduated from California Western School of Law and was admitted to practice law in! California in May 2004. I primarily handle wage and hour class actions and PAGA actions. I am the president of Mara Law Firm, PC and was a partner of The Turley & Mara Law Firm] APLC. I supervise and oversee the class action department of the firm which consists of five) (5) associate attorneys. I was co-class counsel in Hohnbaum v. Brinker Restaurant Corp. (San Diego County Superioy Court, Case No. 'GIC834348) which was the underlying case in the California Supreme Court’s landmark decision in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4thi 1004, in which the California Supreme Court delineated the scope of employer obligations to provide, and employee rights to receive, meal and rest periods under California law. I also, wrote the Amicus Curiae brief on behalf of Consumer Attorneys of California (““CAOC”) in} the decision by the California Supreme Court in Augustus v. ABM Security Services, Inc] (2016) 2 Cal.5th 257 (rest breaks must be duty-free and time spent being on call during rest breaks is not considered duty-free). I also wrote the Amicus Curiae brief on behalf of CAOC| in the matter currently pending before the California Supreme Court, Friekin v. Apple, Inc. (Cal. S. Ct. No. $243805). I oversee all aspects of the class action and PAGA action cases Mara Law Firm, PC, handles. “DECLARATION OF DAVID MARA, ESQ. 3 Case No. CGC-18-56990915. 16. 17. I also write a wide range of motions and argue at a wide range of hearings. I review and edit} motions written by the associates at Mara Law Firm, PC; develop strategies with associates at! Mara Law Firm, PC, in how to best litigate each case; review and edit discovery that is sent] out to employers; review and edit clients’ discovery responses; draft and revise complaints; draft and revise retainers sent to clients; communicate with clients; communicate with class| members; communicate with defense counsel; communicate with co-counsel; revie documents produced by employers; conduct investigations into potential cases; research and| stay up to date in relevant law; attend mediations; draft, review, and revise settlement agreements; and oversee all day to day matters in cases. I have been named as class counsel in the following certified cases as a result of the court granting a motion for class certification: Mario Norona v. B&G Delivery System, Inc. (Sacramento County Superior Court, Case No. 34-2015-00186826-CU-OE-GDS), Jerald Schroeder v. YRC, Inc.; YRC Worldwide, Inc. (Central District of California, Case No. 12-cv- 01374-TJH); John Martin v. Sysco Corporation; Sysco Central California, Inc. (Eastern| District of California, Case No. 1:16-cv-00990-DAD-SAB); William Smith v. Werne Enterprises, Inc. d/b/a C.L. Werner, Inc. (District of Nebraska, Case No. 8:15-cv-287); and! Thomas Perez v. City of San Diego (San Diego County Superior Court, Case No. 37-2014- 00016621-CU-OE-CTL). In 2017, I was co-first chair in a maritime/employment related trial in federal court, of which] Ms. Serb also assisted with, that lasted one week. In 2012, I was second chair in a product] liability trial in state court that lasted just over a month. In 2008 and 2010, I was heavily| involved in a wrongful death, product liability trial that involved multiple firms and lasted! approximately two and a half months. Jamie Serb is an associate at Mara Law Firm, PC. She solely handles wage and hour class} actions and PAGA actions. Ms. Serb graduated from California Western School of Law and] was admitted to practice law in California in June 2013 and received her undergraduate degree| from University of California, San Diego in 2004. Ms. Serb has been litigating wage and hour class actions for over four (4) years and has handled over one hundred (100) class action and DECLARATION OF DAVID MARA, ESQ. 4 Case No. CGC-18-56990918. 19, 20. 21. . Ms. Serb has been named as class counsel in the following certified cases as a result of the| PAGA lawsuits. Ms. Serb received her training in wage and hour class action and PAGA| lawsuits while at Mara Law Firm, PC. Ms. Serb has been at the Mara Law Firm, PC, for over four (4) years and oversees another associate at Mara Law, PC, Mr. Tony Roberts. She also co-wrote an amicus brief on behalf of CAOC in Williams v. Superior Court (2017) 3 Cal.5th 531. Ms. Serb oversees all aspects of the cases assigned to her and litigates these cases with the} assistance of Mr. Roberts. Ms. Serb oversees Mr. Roberts’ work. Ms. Serb routinely writes and opposes motions and argues at hearings. Ms. Serb edits motions written by Mr. Roberts and other associates; drafts and revises discovery propounded on employers; communicates with clients; communicates with class members; communicates with co-counsel;| communicates with defense counsel; drafts and revises notices to the Labor and Workforce Development Agency pursuant to the Private Attorneys General Act of 2004; creates exhibits for use in cases; reviews documents produced by employers; deposes employer witnesses; defends client depositions; attends mediations; drafts, reviews, and revises settlement agreements; drafts, reviews, and revises settlement approval motions; argues at hearings on| settlement motions; and oversees all day to day work in her cases. court granting a motion for class certification: William Smith v. Werner Enterprises, Inc. d/b/a C.L. Werner, Inc, (District of Nebraska, Case No. 8:15-cv-287) and Thomas Perez v. City of San Diego (San Diego County Superior Court, Case No. 37-2014-00016621-CU-OE-CTL). In 2016, Ms. Serb tried a case in New Orleans, Louisiana, involving claims under the Defense| Base Act, which lasted a full day. In 2017, Ms. Serb assisted me in a maritime/employment| related trial in federal court that lasted one week. Tony Roberts solely handles wage and hour class actions and PAGA lawsuits. Mr. Roberts graduated from the University of San Diego School of Law where he merited honors in class action studies and performed independent studies on class actions. Mr. Roberts extemed at the! United States District Court for the Honorable Mitchell D. Dembin. Mr. Roberts was admitted| to practice law in California in June 2017. Mr. Roberts has been litigating wage and hour class| “DECLARATION OF DAVID MARA, ESQ. 5 Case No. CGC-18-56990922. 23. 24. 25. actions for over two (2) years. Mr. Roberts received his training in wage and hour class action and PAGA lawsuits while at Mara Law Firm, PC. Mr. Roberts has been at the Mara Lay Firm, PC, for approximately two (2) years. Mr. Roberts is also an adjunct professor of law at the University of San Diego School of Law. Mr. Roberts routinely writes and opposes motions, drafts complaints, appears before the Court at law and motion and settlement hearings; engages in the discovery process, including! drafting Belaire West notices and meet and confer letters; deposes witnesses and defends depositions. Mr. Roberts also communicates with clients, communicates with class members| and defense counsel. Mr. Roberts works with Ms. Serb in litigating class action and PAGA| action cases and advancing the day to day litigation of these cases. The proposed settlement is the product of serious, informed, non-collusive negotiations, has no obvious defects, does not improperly grant preferential treatment to the class representative, or segments of the class and falls within the range of fair and reasonable settlements. I believe that this non-reversionary settlement is in the best interests of the class as fair, reasonable, and| adequate. Therefore, I recommend approval of the settlement. This class action was filed on September 19, 2018 and amended on or around September 26, 2019. The amended complaint, on behalf of all similarly situated class members, raises causes of action alleging Blue Bus failed to pay all straight and overtime wages, failed to provide meal and rest breaks, failed to pay all wages due at the time of termination, failed to reimburse business expenses, knowingly and intentionally failed to comply with wage statement] provisions, and violated the Unfair Competition Law. The Parties propounded special interrogatories and demands for production of documents, and took the deposition of Defendant’s Person Most Qualified, Bryan Young. The Parties further] exchanged data and information to prepare for a private mediation with Mark Rudy. Blue Bus produced thousands of documents, including personnel records of putative class members. payroll and time records, financial records, employee handbooks, trip sheets, wage and houy policies and correspondence thereon. In addition, Plaintiff's counsel conducted numerous interviews with putative class members and had Blue Bus’s finances evaluated by an expert : DECLARATION OF DAVID MARA, ESQ. 6 Case No, CGC-18-56990926. 27. 28. under a protective order. The gravamen of Plaintiff’s claims is that Blue Bus failed to provide timely control-free meal} and rest breaks to employees in violation of Labor Code sections 512 and 226.7, Wage| Orders, Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, and Augustus v| ABM Security Services, Inc. (2016) 2 Cal.Sth 257. Based upon Plaintiffs investigations. Plaintiff contends — and Blue Bus disputes — that Class Members are always subject to Defendant’s control and command during meal and rest breaks. Plaintiff alleges that Blue Bus has uniform policies which require Class Members to remain on-duty during meal and rest breaks, attending to Blue Bus’s vehicles and customers at all times or face progressive disciplinary action. In addition, Plaintiff asserts Blue Bus required class members to remain] available at all times to respond to customer inquiries whether in person or by telephone, with no abatement of these responsibilities during meal and rest breaks. Plaintiff asserts that these policies deprive employees of legally compliant meal and rest breaks. Blue Bus denies Plaintiff's claims in their entirety. Blue Bus asserts that its meal and rest! break policies fully comply with California law and that its meal and rest break practices are communicated to Class Members. Further, Blue Bus contends that Class Members are relieved of all duties during meal and rest breaks. Blue Bus argues that its meal and rest break! policies relieve Class Members of all duties and that Class Members are not required to respond to Blue Bus or customer inquiries during breaks, needing only to return any calls received during this time promptly once they return from break. Plaintiff further contends and Blue Bus denies — that Blue Bus does not pay Class Members for time spent during 30- minute unpaid meal breaks, attending to their vehicles and responding to Blue Bus and| customer inquiries during that time. Plaintiff further alleges that Defendant’s failure to pay all hours worked exposes Blue Bus to additional liability for waiting time penalties and wage, statement violations. Blue Bus also denies having not paid Class Members for all time worked. Blue Bus argues| that it paid Class Members for all hours they reported to Blue Bus, including any time spent working during meal breaks. Blue Bus argues that any time Class Members allegedly spent " DECLARATION OF DAVID MARA, ESQ. 1 Case No. CGC-18-569909oN DH NH xo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29. 30. working while “off-the-clock” was prohibited and Blue Bus had no constructive or actual knowledge of such “off-the-clock” work. As a result, Blue Bus argues that it owes no unpaid! wages or derivative waiting time penalties and wage statement violations. Furthermore, Blue Bus argues that to be successful on the waiting time penalty claim, Plaintiff will have to} demonstrate that Blue Bus knowingly and intentionally did not pay wages to employees whol terminated their employment with Defendant. Blue Bus argues it had a good faith defense that it had no actual or constructive knowledge of any “off-the-clock” work being done, and thus would not be liable for waiting time penalties. See Alonzo v. Maximus, Inc. (C.D. Cal. 2011 832 F.Supp.2d 1122, 1133-34 (granting summary judgment on Section 203 claim because employer’s ‘presentation of a good faith defense, based in law or fact.. .negate[s] a finding of willfulness’). Blue Bus also argues that Plaintiff's derivative claim for wage statement penalties undey Labor Code § 226 requires only that an employer report on a wage statement the wages actually paid to an employee, not what an employee asserts should have been paid. See Soto v. Motel 6 Operating, L.P. (2016) 4 Cal-App.Sth 385, 392 (the purpose of Section 226 is to require employers to “document the paid wages to ensure the employee is fully informed| regarding the calculation of those wages”); Maldonado yv. Epsilon Plastics, Inc. (2018) 22| Cal.App.Sth 1308, 1337. Blue Bus further argues that, for Plaintiff to succeed with his claims he would have to ask each Class Member what they thought the practices regarding meal and| rest breaks were regarding being on-duty versus off-duty, whether they understood their meall and rest breaks were off-duty and voluntarily decided to take their meal and rest breaks within] the bus, and whether and why employees worked “off-the-clock” and did not report the time to management. As a result, Blue Bus argues that individualized issues would predominate] and Plaintiff would be unable to achieve or maintain class certification. In addition, Plaintiff argues that Class Members were required to use their own personal cellphones to make and receive calls to/from Blue Bus and customers, entitling Class Members to reimbursement of a portion of their cellphone bill. Blue Bus argues that any such| business use of these personal cellphones was not reasonable or necessary, given that Class : ‘DECLARATION OF DAVID MARA, ESQ. 8 Case No. CGC-18-569909eo eo IN A HW RF YW NY NN Be ee ewe Be Be eB BP Se BRRRRSRBERSSERUIAAEBSRAS 31. 32. 33. 34. Members had radios to contact Blue Bus. Any business use of Class Members’ personal cellphones was made out of Class Members” convenience, of which Blue Bus argues it wil not be held liable. See Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4" 554, 568 (the employer may “consider not only the actual expenses that the employee incurred, but also} whether each of these expenses was ‘necessary,’ which in turn depends on the reasonableness of the employee’s choices.”). Blue Bus also argues that, if the litigation continued, it would pursue compelling arbitration, as Plaintiff and Class: Members signed arbitration agreements. Although Plaintiff believes i would have strong counter arguments and Blue Bus would not be successful in compelling! arbitration, the law favors arbitration and Plaintiff could lose his arguments, resulting in this matter being sent to individual arbitration. Plaintiff also had to consider that if certification'is not granted, the Class Members would get nothing. Further, if Blue Bus prevails on the merits, the damage exposure for these claims would be zero. Blue Bus also argues that if litigation continued, it would be forced to file for bankruptcy, contending that it would be unable to remain in business while defending agains! the lawsuit, let alone be able to meet its obligations under a judgment in favor of Plaintiff and the Class. Accordingly, as there is a risk these claims may not be certified and that the factfinder could disagree with Plaintiff's arguments, Plaintiff had to consider the possibility of neither certifying nor prevailing on his claims, as well as Blue Bus’s likelihood of becoming insolvent and unable to litigate these claims to a favorable judgment or-pay said judgment. These reasons led Plaintiff to discount his claims and agree to this Settlement. The Parties attended mediation with respected wage and hour mediator, Mark Rudy. The case} did not settle at mediation, and the Parties continued to negotiate the Settlement and werel ultimately able to come to an agreement, the terms of which are finalized in the Joint Stipulation and Settlement Agreement. These litigation costs will be tabulated and presented to the Court at final approval. Plaintiff will only seek the amount of actual costs incurred. If the amount requested is less than the| amount actually incurred, the remainder will be added to the NSA for distribution to “DECLARATION OF DAVID MARA, ESQ. 9 Case No. CGC-18-569909Cm nN A nA FF YW YY = 6 35. 36. 37. Participating Class Members. After all Court-approved deductions from the GSA, it is estimated that $216,800.00 (“Nef Settlement Amount” or “NSA”), less all applicable employer payroll and employee taxes, will] be distributed to Participating Class Members. Subject to the terms and conditions of the Agreement, ILYM will calculate and issue individual settlement payments based on the following formula: Individual Settlement Share Calculation. Each Participating Class Member will receive a proportionate share of the Net Settlement Amount that is equal to (i) the number of weeks he or she worked for Defendant in California based on the Class data provided by Defendant, divided by (ii) the total number of weeks worked by all Participating Class Members based on the same Class data, which is then multiplied by the Net Settlement Amount. One day worked in a given week will be credited as a week for purposes of this calculation. Therefore, the value of each Class Member’s Individual Settlement Share ties directly to the amount of weeks that he or she worked. (See Mara Dec., Exh. 1, at page 7, paragraph F(1)). The precise number of compensable weeks worked per Class Member will not be known until Blue Bus has tabulated them, following preliminary approval of the Settlement. Under no circumstance will any portion of the settlement revert to Defendant. ILYM’s bid for administering this settlement to 125 class members currently totals onl $7,014.38. It is not expected to increase substantially, if at all. However, any difference] between the allotted amount and the amount ILYM actually incurs in administering this settlement will become part of the Net Settlement Amount, distributable to Participating Class Members. Within seven (7) business days after the entry of the Preliminary Approval Order, Blue Bus shall deliver to the Settlement Administrator an electronic database, which will list for each| Class Member: (1) first and last name; (2) last known mailing address; (3) social security| number; (4) hire and termination dates; and (5) the total number of weeks during which the| Class Member performed any actual work during the Class Period as a member of the Class (“Database”). If any or all of this information is unavailable to Defendants, Defendants will so} inform Class Counsel and the Parties will make their best efforts to reconstruct or otherwise} agree upon how to deal with the unavailable information. ILYM will conduct a skip trace foy DECLARATION OF DAVID MARA, ESQ. 10 Case No. CGC-18-56990938. 39. 40. the address of all former Defendants employee Class Members. The Database shall be based| on Defendants’ payroll, personnel, and other business records. The Settlement Administrator shall maintain the Database and all data contained within the Database as private andi confidential. Within fourteen (14) business days after entry of the Preliminary Approval Order, ILYM will mail the Class Notice to all identified Class Members via first-class regular U.S. Mail, using the mailing address information provided by Blue Bus and the results of the skip trace performed on all former employee Class Members. Class Members will have forty-five (45 days from the date of mailing to request exclusion from or object to the settlement. Should) more than 15% of the Class request exclusion from the Settlement, Blue Bus will have the option to void the Settlement. Within nine (9) months after the Effective Final Settlement Date or by August 31, 2020. whichever is later, Blue Bus shall wire to ILYM the GSA. Within seven a” calendar days after Blue Bus funds the settlement, ILYM will disburse: (1) all Individual Settlement Shares to Participating Class Members; (2) the Attomey Fee Award and Cost Award to Class Counsel for attomeys’ fees and costs, as approved by the Court; (3) the Class Representative, General Release Payment to Class Representative David Alley, as approved by the Court; (4) the Administration Costs to ILYM, as approved by the Court; and (5) Defendant’s portion of payroll taxes as the Class Members’ current or former employer. Participating Class Members must cash or deposit their Individual Settlement Share checks within one-hundred eighty (180) days after the checks are mailed to them. ILYM will pay| over the amount represented by any uncashed check to the cy pres beneficiary, pursuant to California Code of Civil Procedure § 384. The Parties chose The United Way of California as the cy pres beneficiary, as it is a non-profit organization that supports projects that benefits employees and applicants throughout the State of California. The Parties agree thal designating The United Way as the cy pres beneficiary will “further the purposes of the underlying class proceedings in this action and will promote justice for all Californians,” inl conformity with California Code of Civil Procedure § 384. DECLARATION OF DAVID MARA, ESQ. I Case No. CGC-18-569909oe ND HW Bw DN | RNY Be ee we we we we we ei BYXwRRRBRKRHRSTVSEVYA BDEBSRES Al. 42, 43. 44, In exchange for a settlement payment, Class Members are informed that, by accepting the| payment, they release all known and unknown claims, including recovery period, unpaid! wage, missed breaks, failure to provide sick leave, inaccurate wage statements, unreimbursed| expenses, that were alleged or that could have been alleged based on the facts of the complaints filed in the matter. The release will be as to the released parties, which shall include Defendant and its respective parent companies, subsidiaries, affiliates, present and former owners, shareholders, members, agents (including, without limitation, any investmen bankers, accountants, insurers, reinsurers, attorneys, licensees and licensors, related! companies, and any past, present or future officers, directors and employees) predecessors, successors, and assigns (“Released Parties”). The Settlement was reached as a result of arm’s-length negotiations. Though cordial and| professional, the settlement negotiations have been, at all times, adversarial and non-collusive| in nature. Counsel for the Parties conducted arm’s length settlement negotiations through al neutral mediator and continued negotiations for months until the settlement was reached, While Plaintiff believes in the merits of his case, he also recognizes the inherent tisks off litigation and understands the benefit of the Class receiving significant settlement funds immediately as opposed to risking continued litigation in achieving class certification, the merits of the case before and after trial, the damages awarded, the risk of Defendant becoming| insolvent, the risk of compelled individual arbitration, and/or an appeal that can take several| more years to litigate. Plaintiff's counsel has prosecuted numerous cases on behalf of employees for Californial Labor Code violations and thus are experienced and qualified to evaluate the class claims and| to evaluate settlement versus trial on a fully informed basis, and to evaluate the viability of the defenses. This experience instructed Plaintiffs counsel on the risks and uncertainties of further litigation and guided their determination to endorse the proposed settlement. The proposed settlement was only possible following discovery, an evaluation of Defendants’ relevant policies and procedures, as well as the data that Defendants produced for the putative Class, which permitted Class Counsel to engage in a comprehensive analysis of liability and DECLARATION OF DAVID MARA, ESQ. 2 Case No. CGC-18-569909co em YN DH BF YW NY = mee es BRRRRPBEBRSERVUARTEBEAS 45. 46. 47. 48. potential damages. This discovery resulted in Plaintiffs central theories of liability, which arel predicated on Plaintiffs claims that Defendants fail to provide duty-free meal and rest breaks. In addition to being able to discover the strengths and vulnerabilities associated with Plaintiff's claims, Blue Bus provided Plaintiff with statistical information regarding the putative class. Blue Bus indicated that there are approximately 125 total class members who worked for Blue Bus and approximately 57 former class members who have terminated their employment at some time during the Class Period. Plaintiff calculated that these class members worked approximately 34,777 shifts during the Class Period and used Plaintiff's hourly $21.25 rate of pay to calculate Blue Bus’s exposure. For the reasons discussed above, Plaintiff contends Blue Bus does not provide legal compliant meal and rest breaks. Based on Plaintiff's contentions, Class Members would be entitled to two premiums under California Labor Code § 226.7 per shift (one premium for a meal break violation and one premium for a rest break violation per day). Accordingly, Blue Bus’s maximum exposure under Plaintiff's meal and rest break claims is $1,478,022.51 [34,777 (total shifts in Class Period) x $21.25 (hourly rate) x 2 violations per day (one meal] and one rest break violation)]. In addition, Plaintiff contends that Blue Bus is also liable for time Class Members spen working during 30-minute unpaid meal breaks, but were not paid. Accordingly, Blue Bus’s maximum exposure under Plaintiff's unpaid wages claim is $369,505.62 [34,777 (total shifts) in Class Period) x 0.5 (30-minutes per shift) x $21.25 (hourly rate)]. Assuming Plaintiff was successful in proving his derivative waiting time penalty claim, Blue Bus’s maximum exposure under this claim is $290,700.00. Likewise, Blue Bus’s maximum exposure for derivative wage statement violations would be $400,000.00 [$4,000 maximum penalty x 100] employees]. Plaintiff also evaluated a claim for reimbursement of business expenses for the} business use of personal cellphones for work related calls and messages, calculated Blue| Bus’s maximum exposure at $63,240.00 [62 months in Class Period x $15 x 68 current drivers at any time]. Thus, Blue Bus’s total maximum exposure is $,601,468.12. Waiting time penalties are equal to thirty (30) days’ worth of wages. Blue Bus’s maximu “DECLARATION OF DAVID MARA, ESQ. 13 Case No. CGC-18-569909oe yn DA WF WN 49. 50. S1 52. 53. 54, . Plaintiff seeks approval of the following Class for settlement purposes only: All employees exposure would be approximately $290,700 [8 hours an average day x $21.25/hour x 30 day: x approximately 57 former employees], if every single employee were to recover waiting time penalties. Plaintiff figured 15% of an average $100 cellphone bill ($15) should have been paid by| Defendant throughout the Class Period would reimburse Class Members for text messages and sporadic business-related calls received/made via their personal cellphones. Should the Court agree with any of Blue Bus’s defenses to certification or on the merits, om compel Plaintiff to arbitration, the potential exposure would be dramatically reduced, if noj extinguished entirely. In addition, Plaintiff also had to consider that, should the Court agre¢ with Plaintiffs theories of liability, grant certification, as well as agree with Plaintiff's defenses to arbitration, Plaintiff may not be awarded the full exposure for these claims at trial| Furthermore, Plaintiff also had to evaluate the likelihood that Blue Bus would become insolvent over the course of this litigation, preventing Plaintiff from reaching a favorable judgment or be unable to meet its obligations under a judgment favorable to Plaintiff and the Class. In light of Blue Bus’s defenses, supporting evidence, arbitration agreements, counter] arguments to certification, and likelihood of declaring bankruptcy, the Settlement amount off $400,000.00 is a reasonable and fair settlement. who are or were employed by Blue Bus Tours, LLC as hop on/hop off drivers, charter drivers, per capita or charter drivers and any other types of drivers in California at any time during the Class Period. Here, Blue Bus’s records show that the proposed settlement Class has approximately 125] class members. Plaintiff seeks the same legal remedies under state law on behalf of himself and all Class Members. Plaintiff alleges Blue Bus’s policies applied to all Class Members. Factual differences ma: exist between Plaintiff's and the Class Members so long as the claims arise from the same events or course of conduct and are based on the same legal theories. “DECLARATION OF DAVID MARA, ESQ. 4 Case No. CGC-18-56990955. Plaintiff contends those standards are met here. Plaintiff does not have any conflicts of interest! with the settlement Class. He has been and continues to be committed to vigorousl: prosecuting this case. If any Class Member wishes to opt-out of the Settlement, he or she may do so. Therefore, there is no conflict of interest between Plaintiff and the Class Members. 56. A true and correct copy of the Joint Stipulation and Settlement Agreement is attached hereto as Exhibit 1. A true and correct copy of the proposed Class Notice is attached to Exhibit 1 as Exhibit A. I hereby declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: January 31, 2020 . = . i Z Dayid Mafia, Fsq, Attoitiey for Plaintiffs “DECLARATION OF DAVID MARA, ESQ. 15 Case No. CGC-18-569909JOINT STIPULATION AND SETTLEMENT AGREEMENT Subject to final approval by the Court, this Settlement Agreement is between DAVID ALLEY (“Plaintiff”), and Defendant BLUE BUS TOURS, LLC (“Defendants” or “BLUE BUS”). Plaintiff and Defendant collectively are referred to in this Agreement as the “Parties,” 1 DEFINITIONS In addition to the other terms defined in this Agreement, the terms below have the following meaning: A. B. L J. Administration Costs: The costs incurred by the Settlement Administrator to administer this Settlement, which shall not exceed $20,000.00. All Administration Costs shall be paid from the Gross Settlement Amount. Agreement, Settlement Agreement, Joint Stipulation, or Settlement: The settlement agreement reflected in this document, titled “Joint Stipulation and Settlement Agreement.” Attorney Fee Award: The amount, not to exceed 33 1/3% of the Gross Settlement Amount or $133,200.00, finally approved by the Court and awarded to Class Counsel. The Attorney Fee Award shall be paid from the Gross Settlement Amount and will not be opposed by Defendant. Class: All employees who are or were employed by Blue Bus Tours, LLC as hop on/hop off drivers, charter drivers, per capita or charter drivers and any other types of drivers in California at any time during the Class Period. Class Action: The proceeding pending in San Francisco County Superior Court, Case No. CGC-18-569909, Class Counsel: David Mara, Jamie Serb, and Tony Roberts of Mara Law Firm, PC. Class Member: Each person eligible to participate in this Settlement who is a member of the Class as defined above. Class Notice or Notice: The Notice of Class Action Settlement, substantially similar to the form attached hereto as Exhibit A, subject to Court approval. Class Period: The time period from September 19, 2014 to the date of the Preliminary Approval Order. , Class Representative or Plaintiff: David Alley.Class Representative General Release Payments: The amount the Court awards to Plaintiff for his execution of a broader general release of claims against Defendant than Participating Class Members, which will not exceed Ten Thousand Doliars and No Cents ($10,000.00). This payment shall be paid from the Gross Settlement Amount and will not be opposed by Defendant and is being offered in consideration for the Plaintiff executing a general release of claims against Defendant, a release that is broader than any Participating Class Member will provide in consideration for a settlement share. Cost Award: The amount that the Court orders Defendant to pay Class Counsel for payment of actual litigation costs, which shall not exceed Twenty Thousand Dollars and No Cents ($20,000.00). The Cost Award will be paid from the GSA and will not be opposed by Defendant. The Cost Award is subject to Court approval. If the Court awards less than the amount requested, any amount not awarded will become part of the Net Settlement Amount for distribution to Participating Class Members. Counsel for Defendant: April Glatt of Chauvel & Glatt, LLP. Defendant or Blue Bus: Blue Bus Tours, LLC. Effective Final Settlement Date: The effective date of this Settlement will be when the final approval of the settlement can no longer be appealed, or, if there are no objectors, all objections have been withdrawn, and no plaintiffs in intervention at the time the court grants final approval of the settlement, the date the court enters judgment granting final approval of the settlement. Employer Taxes: Defendant’s employer’s share of payroll taxes as the current or former employer (including the employer’s payment of applicable FICA, FUTA, and SUI contributions, etc.) will be paid out of the Gross Settlement Amount. Final Judgment or Final Approval: The final order entered by the Court finally approving this Agreement. First Amended Complaint: Prior to filing a motion for Preliminary Approval, the Parties will file a stipulation to amend the complaint for purposes of removing Arya Khosravi as a Class Representative. Gross Settlement Amount or GSA: The total value of the Settlement is a non- reversionary Four Hundred Thousand Dollars and Zero Cents ($400,000.00). This is the gross amount Defendant can be required to pay under this Settlement Agreement, which includes without limitation: (1) the Net Settlement Amount to be paid to Participating Class Members; (2) the Attorney Fee Award and Cost Award to Class Counsel for attorneys’ fees and costs, as approved by the Court; (3) the Class Representative General Release Payments paid to the ClassRepresentatives, as approved by the Court; (4) the Administration Costs, as approved by the Court; and (5) Employer Taxes. No portion of the Gross Settlement Amount will revert to Defendant. Individual Settlement Share(s): The amount payable to each Participating Class Member under the terms of this Settlement Agreement. Class Members are not required to submit a claim form to receive their Individual Settlement Shares pursuant to this Agreement. All Participating Class Members will receive an Individual Settlement Share automatically, without the return of a claim form. Net Settlement Amount or NSA: The total amount of money available for payout to Participating Class Members, which is the GSA less the Attorney Fee Award, Cost Award, Class Representative General Release Payment, Employer Taxes and Administration Costs. In other words, the NSA is the portion of the GSA that will be distributed to Class Members who do not request exclusion from the Settlement and who have not already settled their claims against Defendant. The payment of employee-side taxes on the portion of the settlement shares earmarked as wages shall be paid out of the Net Settlement Amount as well as Employer Taxes. Thus, the individual settlement shares that are paid out of the Net Settlement Amount shall be reduced by the employee’s tax liability for the share. PAGA: The California Labor Code Private Attorneys General Act of 2004 (Cal. Labor Code §§ 2698 et seq.). PAGA Action: The San Francisco County Superior Court, Case No. CGC-17- 563222, alleging violation of the Private Attorney General Act of 2004 for: (1) failure to pay straight, regular rate wages for all work performed; (2) failure to pay all overtime wages; (3) failure to keep time records of meal breaks; (4) failure to provide meal periods; (5S) failure to provide rest periods; (6) failure to provide recovery periods; (7) failure to pay wages due at termination and during employment; (8) failure to provide sick days; (9) knowing and intentional failure to comply with itemized employee wage statements; and (10) failure to reimburse expenses in discharging duties, was dismissed with prejudice on July 7, 2019 leaving only the Class case matter. Participating Class Members: All Class Members who do not submit a valid and timely request to exclude themselves from this Settlement. Parties: Plaintiff David Alley, as an individual and as a Class Representative, and Defendant Blue Bus Tours, LLC. Preliminary Approval or Preliminary Approval Order: The Court’s order preliminarily approving the proposed Settlement.AA. BB. cc, DD. EE. FF. Released Claims: Putative class members who do not opt out of the settlement will release all known and unknown claims, including recovery period, unpaid wage, missed breaks, failure to provide sick leave, inaccurate wage statements, unreimbursed expenses, that were alleged or that could have been alleged based on the facts of the complaints filed in the matter. The release will be as to the released parties, which shall include Defendant and its respective parent companies, subsidiaries, affiliates, present and former owners, shareholders, members, agents (including, without limitation, any investment bankers, accountants, insurers, reinsurers, attomeys, licensees and licensors, related companies, and any past, present or future officers, directors and employees) predecessors, successors, and assigns. Released Parties: Defendant and its past, present and/or future, direct and/or indirect, officers, directors, owners, employees, representatives, administrators, attomeys, agents, parent companies, subsidiaries and affiliated corporations and. entities, licensees and licensors, related companies, consultants, shareholders, joint ventures, predecessors, successors, and/or assigns. Response Deadline: Forty-five (45) calendar days from the initial mailing of . the Notice. Setttement Administration: The Settlement Administrator will conduct a skip trace for the address of all former employee Class Members. The Settlement Administrator will mail the Notice by first class U.S. mail to all Class Members at the address Defendant has on file for those Class Members and to all former employee Class Members at the address resulting from the skip trace. The Notice will inform Class Members that they have until the Response Deadline to either object to the Settlement or to opt-out of the Settlement. Any Class Member who does not receive Notice after the steps outlined above have been taken will still be bound by the Settlement and/or judgment. The Settlement Administrator will also disburse the settlement as agreed to in this Agreement. Settlement Administrator: The third party administrator agreed upon by Parties to administer this Settlement is ILYM Group, Inc. Superior Court: San Francisco County Superior Court. Il ‘RECITALS A. The Class Action was filed by Plaintiffs Arya Khosravi and David Alley in the San Francisco Superior Court on September 19, 2018. The Class Action was subsequently stayed per stipulation of the Parties, pending global mediation of the PAGA Action, Class Action and other related cases.Plaintiff propounded two sets of special interrogatories and one set of demands for production of documents to which Defendant responded. Thereafter, Plaintiff conducted the deposition of Brian Young, Defendant’s Person Most Qualified. Defendant propounded general form interrogatories, employment form interrogatories, one set of special interrogatories and requests for production of documents to which Plaintiff responded. The Parties met and conferred extensively over discovery responses, resulting in supplemental responses, noticed motions to compel, and continued hearings thereon. In addition, Plaintiff reviewed a substantial amount of data and hundreds of pages of documents relating to the size and scope of the class that permitted an evaluation of the class-wide claims. The parties attended mediation with Mark Rudy on February 7, 2019. The matter did not settle at the mediation. However, the parties continued to negotiate at arms-length in the following months and reached an agreement in principle to settle the case, the terms of which are reflected herein. Benefits of Settlement to Class Members. Plaintiff and Class Counsel recognize the expense and length of continued proceedings necessary to continue the litigation against Defendant through trial and through any possible appeals. Plaintiff and Class Counsel also have taken into account the uncertainty and risk of further litigation, the potential outcome, and the difficulties and delays inherent in such litigation. Plaintiff and Class Counsel have conducted extensive settlement negotiations. Based on the foregoing, Plaintiff and Class Counsel believe the Settlement set forth in this Agreement is a fair, adequate, and reasonable settlement, and is in the best interests of the Class Members. Defendant’s Reasons for Settlement. Defendant recognizes that the defense of this litigation will be protracted and expensive. Substantial amounts of time, energy, and resources of Defendant has been and, unless this Settlement is made, will continue to be devoted to the defense of the claims asserted by Plaintiffs. Defendant, therefore, has agreed to settle in the manner and upon the terms set forth in this Agreement to put to rest the Released Claims. Defendant’s Denial of Wrongdoing. Defendant generally and specifically denies any and all liability or wrongdoing of any sort with regard to any of the claims alleged, makes no concessions or admissions of liability of any sort, and contends that for any purpose other than settlement, the Class Action is not appropriate for class treatment. Defendant asserts a number of defenses to the claims, and has denied any wrongdoing or liability arising out of any of the alleged facts or conduct in the Action. Neither this Agreement, nor any document referred to or contemplated herein, nor any action taken to carry outI I. A. this Agreement, is or may be construed as, or may be used as an admission, concession, or indication by or against Defendant or any of the Released Parties of any fault, wrongdoing, or liability whatsoever. There has been no final determination by any court as to the merits of the claims asserted by Plaintiff against Defendant or as to whether a class or classes should be certified, other than for settlement purposes only. If this settlement is not approved, no statements made in this document may be used against Defendant in any pleading filed with any court in