Preview
Alejandro P. Gutierrez, SBN 107688
1 agutierrez@hathawaylawfinn. com
HATHAWAY, PERRETT, WEBSTER, POWERS,
2 CHRISMAN & GUTIERREZ, APC
5450 Telegraph Road, Suite 200
3 Ventura, CA 93006-3577
Telephone: (805) 644-7111
4 Facsimile: (805) 644-8296 DEC 2 2 2021
5 Daniel J, Palay, SBN 159348
djp(^calemploymentcounsel. com
By A. O'Donnell, Deputy ClerK
6 Brian D. Hefelfmger, SBN 253054
bdh@calemploymentcounsel. com
7 PALAY HEFELFINGER, APC
1746 S. Victoria Avenue, Suite 230
8 Ventura, California 93001
Tel: (805) 628-8220
9 Fax: (805) 765-8600
10 Attomeys for Plaintiff JOHN BOUDREA U
and the Certified Class
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12
SUPERIOR COURT OF THE STATE OF CALIFORNLA
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FOR THE COUNTY OF SACRAMENTO (UNLIMITED)
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15 JOHN BOUDREAU, an individual, on behalf of CaseNo. 34-2018-00247272
himself and all others similarly situated. Complaint Filed: 12-27-18
16 Assigned toi
Plaintiffs,
17 I ORDER AND FINAL
vs.
18 JUDGMENT
PRIMERITUS FINANCIAL SERVICES, INC,
19 a Delaware Corporation; CHRIS
MCGUINNESS, an individual; and DOES 1
20 through 10, inclusive,
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Defendants.
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28
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IPROPOSEDj ORDER AND FltiAL JUDGMENT
I This matter came on before the Court for hearing on December 3,2021 at 9:30 a.m. in Department
2 41 ofthe above-captioned Court, pursuant to the Preliminary Approval Order of this Court entered on
3 July 30,2021, on the motion of Plaintiff for final approval of the terms of the class action settlement sel
4 forth in the Joint Stipulation of Class Action and PAGA Settlement ("Settlement Agreement") between
5 the parties, and for an award of attomey's fees and costs, and an award approving of the requiested
6 incentive award payment to the named Plaintiff,
7 BACKGROUND
8 WHEREAS, the Settlement Agreement in this matter, together with the Court's July 30, 2021
9 Preliminary Approval Order (the "Approval Order") thereon, sets forth the terms and conditions for a
10 proposed settlement;
11 WHEREAS, ali defined terms contained herein have the same meanings as set forth in the
12 Settlement Agreement and the Approval Order;
13 WHEREAS, as discussed above, the Court previously granted preliminary approval of the
14 settlement on or about July 30,2021;
15 WHEREAS, the Court presently has before it the Settlement Agreement; the previously-entered
16 Approval Order; the PlaintifTs Motion for Final Approval of Class Action and PAGA Settlement and
17 Motion for Attomey's Fees and Costs (the "Motions"); the Declaration of Zachary Cooley on behalf of
18 Simpluris, the claims administrator; the Declarations of Alejandro P. Gutienrez, Brian D, Hefelfinger,
19 and Daniel Palay, Class Counsel, as well as the Declaration of Class Representative John Boudreau in
20 Support of the Motions;
21 WHEREAS, the Court has heard the attorneys for the parties with respect to the proposed
22 settlement;
23 WHEREAS, the Court is satisfied that the settlement set forth in the Settlement Agreement was
24 the result of good-faith, arm's length settlement negotiations between competent and experienced counsel
25 for both the Plaintiff and Defendant; and,
26 WHEREAS, due and adequate notice having been given to the Settlement Class as required by
27 the Approval Order, and the Court having considered all papers filed and proceedings had herein and
28 otherwise been fully informed, and good cause appearing therefore,
-2-
IPROrOSED] ORDER AND FINALJUDGMENT
1 IT IS HEREBY ORDERED, ADJUDGED, AND DECLARED as follows:
2
3 ORDER
4 1. This Court has jurisdiction over the subject matter of the Class Action and over all Parties
5 to the Class Action, including all Members of the Settlement Class.
6 2. The Court conducted a hearing on July 29, 2021 for preliminary approval of the Parties'
7 Settlement Agreement. After fully considering all supporting papers, evidence, and arguments, the Court
8 granted preliminary approval of the Settlement Agreement on July 30, 2021 (the "Approval Order" and
9 the "Preliminary Approval Date" herein), and further found that the ordered Class Notice met all
10 constitutional and statutoiy requirements, including due process,
11 3. The Court now fmds that notice given to the Settlement Class, including the mailing of
12 the Class Notice, as delineated in the Settlement Agreement, has been completed in conformity with the
13 Preliminary Approval Order, including individual notice to all Class Members who could be identified
14 through reasonable effort.
15 4. The Court fmds that said notice was the best notice practicable under the circumstances,
16 which satisfied the requirements of law and due process, and was reasonably calculated, under all the
17 circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity
18 to present their objections,
19 5. The Court finds and determines that this notice procedure afforded due and adequate
20 protections to Settlement Class Members and provides the basis for the Court to make an infomied
21 decision regarding approval of the Settlement based on the response of the Settlement Class, The Class
22 Notice provided due and adequate notice ofthe proceedings of the matters set forth therein, including the
23 proposed settlement set forth in the Settlement Agreement, to all persons entitled to such notice, and the
24 Class Notice fully satisfied the requirements of due process.
25 6. The Court finds that no member of the Settlement Class filed a written objection to the
26 proposed settlement with the Clerk of this Court as part of this notice process. Moreover, pursuant to the
27 information presented by the claims administrator herein, no member of the Settlement Class has opted
28 out of the settlement.
IPROPOSEDl ORDER AND HNAL JUDGMENT
1 7. Subsequently, and in accordance with the Court's Preliminary Approval Order and the
2 Class Notice, the Court conducted a further hearing on December 3,2021, for the purpose of considering
3 the final approval of the Settlement Agreement (the "faimess hearing"). The Court, after fully
4 considering all supporting papers, evidence, and arguments, having reviewed the declaration of the
5 Settlement Administrator regarding the giving of the Class Notice in accordance with the Court's
6 Preliminary Approval Order, and having fully and carefully considered said matters, good cause
7 appearing, issues its Order and Judgment of Final Approval ofthe Class Action Settlement, finding said
8 settlement to be fair, reasonable, and adequate to the Settlement Class and to each Class Member. The
9 Settlement is hereby ordered finally approved and all terms and provisions ofthe Settlement are ordered
10 to be completed.
11 8. The Court further finds and determines that the settlement payments to be paid to eligible,
12 participating Settlement Class Members are fair and reasonable. The Court hereby gives final approval
13 to those amounts and orders that the settlement payments be made to the eligible, participating Settlement
14 Class Members in accordance with the terms of the Settlement.
15 9. This Court hereby approves the settlement set forth in the Settlement Agreement,
16 including the settlement award, released claims, and other terms therein, and directs the Parties to
17 effectuate the settlement according to its terms. The Settlement Agreement is hereby deemed
18 incorporated herein as if expressly set forth and has the full force and effect of an order and judgment of
19 this Court.
20 10. The Court finds and determines that the payments to be made to Class Counsel in the sum
KEVIN R.r,ULHAf.!^r-.'--
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of $1,3» million in attorneys' fees' 32»''7df the Gross Settlement Amount), and $ 22,057.52 in litigation
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costs expended, are fair and reasonable in this matter based on the results achieved, the issues embraced
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by the action, and the effort expended. The Court also finds and determines that the payment to be made
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to the Settlement Administrator, Simpluris, in the sum of $8,700.00 is fair and reasonable. The Court
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finds that the requested incentive award payment to plaintiff John Boudreau in the sum of $25,000,00 is
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approved, reflecting appropriate amounts for his general release and as a service enhancement payment
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in recognition of his time and effort expended to benefit the class as a whole. Thus, the Court hereby
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grants the Motion for Final Approval of Class Action Settlement and Motion for Attomey's Fees and
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[PROPOSEDI ORDER AND FINAL JUDGMENT
1 Costs and gives final approval to the foregoing payments and orders that the payments be made in
2 accordance with the terms ofthe Settlement Agreement.
3 11. Pursuant to Paragraph D (6) of the approved Settlement Agreement in this matter.
4 Defendant shall deliver or otherwise remit to the Settlement Administrator the necessary funds to fully
5 fund the Settlement Fund Account as follows: Payment one in the amount of Two Million Five Hundred
6 Thousand Dollars ($2,500,000) shall occur on or before February 1,2022, and the remainder ofthe Total
7 Settlement Amount, One Million Four Hundred Thousand Dollars ($1,400,000), shall be made by
8 payment two, which shall be made on or before July 1,2022.
9 12. The Settlement Agreement is not an admission by Defendant, nor is this final approval
10 order and judgment thereon, a fmding of the validity of any claims in the Class Action, or of any
11 wrongdoing by Defendant, Furthermore, the Settlement Agreement is not a concession by Defendant
12 and shall not be used as an admission of any fault, omission or wrongdoing by Defendant. Neither this
13 final approval order and judgment, the Settlement Agreement, any document referred to herein, any
14 exhibit to any document referred to herein, any action taken to carry out the Settlement Agreement, nor
15 any negotiations or proceedings related to the Settlement Agreement, are to be construed as, or deemed
16 to be evidence of, or an admission or concession with regard to, the denials or defenses of Defendant,
17 and shall not be offered in evidence in any action or proceeding against the Parties hereto in any Court,
18 administrative agency or other tribunal for any purpose whatsoever other than to enforce the provisions
19 of this Order and judgment. This final approval order and judgment, the Settlement Agreement and
20 exhibits thereto, and any other papers and records on file in the Class Action may be filed in this Court
21 or any other action as evidence of the settlement by Defendant to support a defense of res judicata,
22 collateral estoppel, release, or other theory of claim or issue preclusion or similar defense as to the
23 Released Claims (as defmed in the Settlement Agreement),
24 13. The Court hereby enters fmal judgment in this action, in accordance with the terms of the
.25 Settlement Agreement.
26 14. Without affecting the finality of this order and judgment in any way pursuant to Cal. Rules
27 of Court, Rule 3.769(h), the Court shall retain continuing jurisdiction over: (a) interpretation,
28 implementation and enforcement of the class settlement in this action, and (b) enforcement and
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I PROPOSED) ORDER AND FINAL JUDGMENT
I administration of this Settlement Agreement, and any and all related matters, and all Settling Parties,
2 Settlement Class Members, and counsel for each hereby specially submit to the jurisdiction ofthe Court
3 for the purposes of implementing and enforcing the Settlement Agreement.
4 15, Nothing in this final approval order and judgment shall preclude any action to enforce the
5 Parties' obligations under the Settlement Agreement, including the requirement that Defendant make the
6 Settlement Payments to the eligible, participating Settlement Class Members in accordance with the
7 Settlement Agreement.
8 16, Pursuant to Cal. Rules of Court, Rule 3.771, the judgment in this action shall be binding
9 on the Representative Plaintiff, and all of the Settlement Class members who did not timely request
10 exclusion are hereby deemed to have waived and released all Released Claims (as Released Claims is
11 defined in the Settlement Agreement). Every person in the Settlement Class who did not opt out is a
12 settlement class member (Settlement Class Member).
13 17, The Parties shall bear their own costs and attomey's fees, except as otherwise provided
14 by the Settlement Agreement and this Order and Judgment, the Class Representative service award, and
15 the Settlement Administrator's Costs.
16 IT IS SO ORDERED.
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18 DATED: / ^ / ^ ,2021
/ the Superior Court
19
KEVIN R. CULHANE
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IPROPOSEDl ORDER AND HNAL JUDGMENT
Preview
Alejandro P. Gutierrez, SBN 107688 1 agutierrez@hathawaylawfinn. com HATHAWAY, PERRETT, WEBSTER, POWERS, 2 CHRISMAN & GUTIERREZ, APC 5450 Telegraph Road, Suite 200 3 Ventura, CA 93006-3577 Telephone: (805) 644-7111 4 Facsimile: (805) 644-8296 DEC 2 2 2021 5 Daniel J, Palay, SBN 159348 djp(^calemploymentcounsel. com By A. O'Donnell, Deputy ClerK 6 Brian D. Hefelfmger, SBN 253054 bdh@calemploymentcounsel. com 7 PALAY HEFELFINGER, APC 1746 S. Victoria Avenue, Suite 230 8 Ventura, California 93001 Tel: (805) 628-8220 9 Fax: (805) 765-8600 10 Attomeys for Plaintiff JOHN BOUDREA U and the Certified Class 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNLA 13 FOR THE COUNTY OF SACRAMENTO (UNLIMITED) 14 15 JOHN BOUDREAU, an individual, on behalf of CaseNo. 34-2018-00247272 himself and all others similarly situated. Complaint Filed: 12-27-18 16 Assigned toi Plaintiffs, 17 I ORDER AND FINAL vs. 18 JUDGMENT PRIMERITUS FINANCIAL SERVICES, INC, 19 a Delaware Corporation; CHRIS MCGUINNESS, an individual; and DOES 1 20 through 10, inclusive, 21 Defendants. 22 23 24 25 26 27 28 -I- IPROPOSEDj ORDER AND FltiAL JUDGMENT I This matter came on before the Court for hearing on December 3,2021 at 9:30 a.m. in Department 2 41 ofthe above-captioned Court, pursuant to the Preliminary Approval Order of this Court entered on 3 July 30,2021, on the motion of Plaintiff for final approval of the terms of the class action settlement sel 4 forth in the Joint Stipulation of Class Action and PAGA Settlement ("Settlement Agreement") between 5 the parties, and for an award of attomey's fees and costs, and an award approving of the requiested 6 incentive award payment to the named Plaintiff, 7 BACKGROUND 8 WHEREAS, the Settlement Agreement in this matter, together with the Court's July 30, 2021 9 Preliminary Approval Order (the "Approval Order") thereon, sets forth the terms and conditions for a 10 proposed settlement; 11 WHEREAS, ali defined terms contained herein have the same meanings as set forth in the 12 Settlement Agreement and the Approval Order; 13 WHEREAS, as discussed above, the Court previously granted preliminary approval of the 14 settlement on or about July 30,2021; 15 WHEREAS, the Court presently has before it the Settlement Agreement; the previously-entered 16 Approval Order; the PlaintifTs Motion for Final Approval of Class Action and PAGA Settlement and 17 Motion for Attomey's Fees and Costs (the "Motions"); the Declaration of Zachary Cooley on behalf of 18 Simpluris, the claims administrator; the Declarations of Alejandro P. Gutienrez, Brian D, Hefelfinger, 19 and Daniel Palay, Class Counsel, as well as the Declaration of Class Representative John Boudreau in 20 Support of the Motions; 21 WHEREAS, the Court has heard the attorneys for the parties with respect to the proposed 22 settlement; 23 WHEREAS, the Court is satisfied that the settlement set forth in the Settlement Agreement was 24 the result of good-faith, arm's length settlement negotiations between competent and experienced counsel 25 for both the Plaintiff and Defendant; and, 26 WHEREAS, due and adequate notice having been given to the Settlement Class as required by 27 the Approval Order, and the Court having considered all papers filed and proceedings had herein and 28 otherwise been fully informed, and good cause appearing therefore, -2- IPROrOSED] ORDER AND FINALJUDGMENT 1 IT IS HEREBY ORDERED, ADJUDGED, AND DECLARED as follows: 2 3 ORDER 4 1. This Court has jurisdiction over the subject matter of the Class Action and over all Parties 5 to the Class Action, including all Members of the Settlement Class. 6 2. The Court conducted a hearing on July 29, 2021 for preliminary approval of the Parties' 7 Settlement Agreement. After fully considering all supporting papers, evidence, and arguments, the Court 8 granted preliminary approval of the Settlement Agreement on July 30, 2021 (the "Approval Order" and 9 the "Preliminary Approval Date" herein), and further found that the ordered Class Notice met all 10 constitutional and statutoiy requirements, including due process, 11 3. The Court now fmds that notice given to the Settlement Class, including the mailing of 12 the Class Notice, as delineated in the Settlement Agreement, has been completed in conformity with the 13 Preliminary Approval Order, including individual notice to all Class Members who could be identified 14 through reasonable effort. 15 4. The Court fmds that said notice was the best notice practicable under the circumstances, 16 which satisfied the requirements of law and due process, and was reasonably calculated, under all the 17 circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity 18 to present their objections, 19 5. The Court finds and determines that this notice procedure afforded due and adequate 20 protections to Settlement Class Members and provides the basis for the Court to make an infomied 21 decision regarding approval of the Settlement based on the response of the Settlement Class, The Class 22 Notice provided due and adequate notice ofthe proceedings of the matters set forth therein, including the 23 proposed settlement set forth in the Settlement Agreement, to all persons entitled to such notice, and the 24 Class Notice fully satisfied the requirements of due process. 25 6. The Court finds that no member of the Settlement Class filed a written objection to the 26 proposed settlement with the Clerk of this Court as part of this notice process. Moreover, pursuant to the 27 information presented by the claims administrator herein, no member of the Settlement Class has opted 28 out of the settlement. IPROPOSEDl ORDER AND HNAL JUDGMENT 1 7. Subsequently, and in accordance with the Court's Preliminary Approval Order and the 2 Class Notice, the Court conducted a further hearing on December 3,2021, for the purpose of considering 3 the final approval of the Settlement Agreement (the "faimess hearing"). The Court, after fully 4 considering all supporting papers, evidence, and arguments, having reviewed the declaration of the 5 Settlement Administrator regarding the giving of the Class Notice in accordance with the Court's 6 Preliminary Approval Order, and having fully and carefully considered said matters, good cause 7 appearing, issues its Order and Judgment of Final Approval ofthe Class Action Settlement, finding said 8 settlement to be fair, reasonable, and adequate to the Settlement Class and to each Class Member. The 9 Settlement is hereby ordered finally approved and all terms and provisions ofthe Settlement are ordered 10 to be completed. 11 8. The Court further finds and determines that the settlement payments to be paid to eligible, 12 participating Settlement Class Members are fair and reasonable. The Court hereby gives final approval 13 to those amounts and orders that the settlement payments be made to the eligible, participating Settlement 14 Class Members in accordance with the terms of the Settlement. 15 9. This Court hereby approves the settlement set forth in the Settlement Agreement, 16 including the settlement award, released claims, and other terms therein, and directs the Parties to 17 effectuate the settlement according to its terms. The Settlement Agreement is hereby deemed 18 incorporated herein as if expressly set forth and has the full force and effect of an order and judgment of 19 this Court. 20 10. The Court finds and determines that the payments to be made to Class Counsel in the sum KEVIN R.r,ULHAf.!^r-.'-- 21 of $1,3» million in attorneys' fees' 32»''7df the Gross Settlement Amount), and $ 22,057.52 in litigation 22 costs expended, are fair and reasonable in this matter based on the results achieved, the issues embraced 23 by the action, and the effort expended. The Court also finds and determines that the payment to be made 24 to the Settlement Administrator, Simpluris, in the sum of $8,700.00 is fair and reasonable. The Court 25 finds that the requested incentive award payment to plaintiff John Boudreau in the sum of $25,000,00 is 26 approved, reflecting appropriate amounts for his general release and as a service enhancement payment 27 in recognition of his time and effort expended to benefit the class as a whole. Thus, the Court hereby 28 grants the Motion for Final Approval of Class Action Settlement and Motion for Attomey's Fees and -4- [PROPOSEDI ORDER AND FINAL JUDGMENT 1 Costs and gives final approval to the foregoing payments and orders that the payments be made in 2 accordance with the terms ofthe Settlement Agreement. 3 11. Pursuant to Paragraph D (6) of the approved Settlement Agreement in this matter. 4 Defendant shall deliver or otherwise remit to the Settlement Administrator the necessary funds to fully 5 fund the Settlement Fund Account as follows: Payment one in the amount of Two Million Five Hundred 6 Thousand Dollars ($2,500,000) shall occur on or before February 1,2022, and the remainder ofthe Total 7 Settlement Amount, One Million Four Hundred Thousand Dollars ($1,400,000), shall be made by 8 payment two, which shall be made on or before July 1,2022. 9 12. The Settlement Agreement is not an admission by Defendant, nor is this final approval 10 order and judgment thereon, a fmding of the validity of any claims in the Class Action, or of any 11 wrongdoing by Defendant, Furthermore, the Settlement Agreement is not a concession by Defendant 12 and shall not be used as an admission of any fault, omission or wrongdoing by Defendant. Neither this 13 final approval order and judgment, the Settlement Agreement, any document referred to herein, any 14 exhibit to any document referred to herein, any action taken to carry out the Settlement Agreement, nor 15 any negotiations or proceedings related to the Settlement Agreement, are to be construed as, or deemed 16 to be evidence of, or an admission or concession with regard to, the denials or defenses of Defendant, 17 and shall not be offered in evidence in any action or proceeding against the Parties hereto in any Court, 18 administrative agency or other tribunal for any purpose whatsoever other than to enforce the provisions 19 of this Order and judgment. This final approval order and judgment, the Settlement Agreement and 20 exhibits thereto, and any other papers and records on file in the Class Action may be filed in this Court 21 or any other action as evidence of the settlement by Defendant to support a defense of res judicata, 22 collateral estoppel, release, or other theory of claim or issue preclusion or similar defense as to the 23 Released Claims (as defmed in the Settlement Agreement), 24 13. The Court hereby enters fmal judgment in this action, in accordance with the terms of the .25 Settlement Agreement. 26 14. Without affecting the finality of this order and judgment in any way pursuant to Cal. Rules 27 of Court, Rule 3.769(h), the Court shall retain continuing jurisdiction over: (a) interpretation, 28 implementation and enforcement of the class settlement in this action, and (b) enforcement and -5- I PROPOSED) ORDER AND FINAL JUDGMENT I administration of this Settlement Agreement, and any and all related matters, and all Settling Parties, 2 Settlement Class Members, and counsel for each hereby specially submit to the jurisdiction ofthe Court 3 for the purposes of implementing and enforcing the Settlement Agreement. 4 15, Nothing in this final approval order and judgment shall preclude any action to enforce the 5 Parties' obligations under the Settlement Agreement, including the requirement that Defendant make the 6 Settlement Payments to the eligible, participating Settlement Class Members in accordance with the 7 Settlement Agreement. 8 16, Pursuant to Cal. Rules of Court, Rule 3.771, the judgment in this action shall be binding 9 on the Representative Plaintiff, and all of the Settlement Class members who did not timely request 10 exclusion are hereby deemed to have waived and released all Released Claims (as Released Claims is 11 defined in the Settlement Agreement). Every person in the Settlement Class who did not opt out is a 12 settlement class member (Settlement Class Member). 13 17, The Parties shall bear their own costs and attomey's fees, except as otherwise provided 14 by the Settlement Agreement and this Order and Judgment, the Class Representative service award, and 15 the Settlement Administrator's Costs. 16 IT IS SO ORDERED. 17 18 DATED: / ^ / ^ ,2021 / the Superior Court 19 KEVIN R. CULHANE 20 21 22 23 24 25 26 27 28 IPROPOSEDl ORDER AND HNAL JUDGMENT