Preview
1
Alejandro P. Gutierrez, SBN 107688
agutierrez@hathawaylawfirm. com
FlLEDiPlDOR:
HATHAWAY, PERRETT, WEBSTER, POWERS,
2 CHRISMAN & GUTIERREZ, APC
5450 Telegraph Road, Suite 200
NOV 1 2 2021
3 Venttira, CA 93006-3577
Telephone: (805)644-7111 Bv K. Madden. Deoutv Clerk
4 Facsimile: (805) 644-8296
5 Daniel J. Palay, SBN 159348
djp@calemploymentcounsel. com
6 Brian D. Hefelfmger, SBN 253054
bdh@calemploymentcounsel. com
7 PALAY HEFELFINGER, APC
1746 S. Victoria Avenue, Suite 230
8 Venmra, Cahforaia 93001
Tel: (805) 628-8220
9 Fax:(805)765-8600
^10 Attorneys for Plaintiff JOHN BOUDREA U
and the Certified Class
jll
'l2
SUPERIOR COURT OF THE STATE OF CALIFORNIA
|13
114 FOR THE COUNTY OF SACRAMENTO (UNLIMITED)
115 JOHN BOUDREAU, an individual, on behalfof Case No. 34-2018-00247272
16 himself and all others similarly situated. Complaint Filed: 12-27-18
Assigned to Dept. 41, Hon. David de Alba
17 Plaintiffs,
DECLARATION OF PLAINTIFF JOHN
18 vs. BOUDREAU IN SUPPORT OF MOTION
FOR FINAL APPROVAL OF CLASS
PRIMERITUS FINANCIAL SERVICES, INC., ACTION AND PAGA SETTLEMENT
19
a Delaware Corporation; CHRIS
20 MCGUINNESS, an individual; and DOES 1 Date: December 3, 2021
through 10, inclusive. Time: 9:30 A.M.
21 Dept: 41
Defendants.
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DECLARATION OF PLAINTIFF JOHN BOUDREAU
1 TO ALL INTERESTED PARTIES AND TO THEIR ATTORNEYS OF RECORD:
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1, JOHN BOUDREAU, hereby declare and state as follows:
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1. I am a party in the above-entitled matter. I f called as a witness, I could and would
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competently testify to the matters set forth herein based upon my personal knowledge.
5 2. I am a former employee of PRIMERITUS FINANCIAL SERVICES, INC. (the
6 "Defendant" herein), and I worked for Defendant within Califomia as an investigator/skip tracer during at
7 least the four years immediately prior to the commencement of this action. Defendant is one of the largest
8 repossession management and skip trace services nationwide, operating a facility in El Dorado Hills,
Califomia.
9
3. I hired Alejandro P. Gutierrez at Hathaway, Perrett, Webster, Powers, Chrisman &
10
Gutierrez, APC and Palay Hefelfinger, APC ("Class Counsel") to deal with the employment issues I
11 experienced, because I researched that they have a wealth of experience in these types of cases. I wanted
12 to make sure that the Defendant properly pays its employees, and I hoped that doing so would cause it to
13 change its ways.
14 4. I began researching the legality of Primeritus's compensation plan in early 2017 using the
intemet. I requested the formula of how overtime was calculated from the local HR representative and
15
was directed to the Corporate HR Manager who ignored my request for over a month. During my
16
research I concluded that Primeritus used a plan they called commission but in reality was a piece rate
17
plan. When I mquired into this I was repeatedly told the plan was commission based.
18 5. I continued my research ultimately seeking assistance from the Califoraia Labor
19 commission. During that process, I gathered and reviewed years of pay stubs in order to calculate how
20 much I was shorted by Primeritus in compensation. In late 2018, in a Labor Board meeting Primeritus
21 they admitted that the compensation plan was indeed a piece-rate plan. The Labor Commissioner then
advised me to use a different calculation to determine the amount Primeritus had shorted me in
22
compensation.
23
6. At this point 1 began researching attomeys to represent me and potentially other
24
employees that had not been compensated correctly. I selected Alejandro Gutierrez based upon research
25 and several phone interviews where he impressed me with his knowledge and provided sfraight forward
26 answers to my many questions.
27 7. I then began gathering additional pay stubs, employee handbooks and other documents
that 1 provided to Alejandro. I have spent many hours speaking to Alejandro, asking questions, being
28
educated on my case and the class that I chose to represent via phone calls, texts, and emails. When
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DECLARATION OF PLAINTIFF JOHN BOUDREAU
Primeritus advised their employees of my class action suit I then handled calls from current and former
1
employees explained the basis of the complaint and directed them to Alejandro.
2
8. I continued to ask questions, spent an enormous amount of time reviewing legal
3 documents. I took time off from work to be deposed over the course of a day, traveled to southern
4 Califoraia at my own expense to participate in an all-day mediation, then participated in a second all day
5 mediation several months later. 1 would estimate that 1 easily spent well in excess of 200 hours gathering
6 and transmitting documents, asking and answering questions from Alejandro and class members,
7 reviewing documents prepared by Alejandro and those submitted by Primeritus, preparing for deposition
and mediation and then participating in them.
8
9. After I filed the lawsuit, Primeritus changed the manner in which it pays its
9
investigators/skip fracers in regard to minimum wages for rest periods and other unproductive time
10 worked. However, as a result of this litigation, it is very possible that I would have to discuss this lawsuit
11 to potential employers, and that it could have an adverse effect on my employability in this or other
12 industries.
13 10. As the sole representative Plaintiff in this case, I spent many hours engaging in
conversations with Mr. Gutierrez and others discussing aspects of the case and helping direct the
14
investigation and negotiations that were conducted in this case. I have spent many hours reviewing the
15
evidence and aiding in the decisions to proceed. I participated in all of the following: Provided
16 information related to the facts in this action; confirmed receipt of documents; discussed deposition
17 schedule and prepared for my deposition; prepared and reviewed responses to vmtten discovery; was
18 briefed on an upcoming Primeritus deposition and Primeritus' interest in mediation; discussed mediation
19 and class certification with my attomey; reviewed the First Amended Complaint and duties of Class
20 Representative; attended my deposition for 8 hours; reviewed the damages model; reviewed the
deposition transcript of Primeritus' corporate deponent;fraveledto Los Angeles for and participated in
21
all-day mediation; reviewed the motion for summary judgement; reviewed the Notice of class action
22
mailed to employees; reviewed Primeritus' opposition to suirmiary judgement; prepared for and
23 participated in a second mediation for 9 hours; reviewed settlement documents; reviewed amended
24 settlement documents and signed; provided summary of my efforts in class action. I also reviewed many,
25 many pages of data and records, along with the analysis of the records done by both my counsel and the
26 defense counsel. 1 worked with my attomeys to prepare our arguments, and responses to Primeritus'
27 arguments. I reviewed the very long Stipulation of Settlement and asked my counsel for clarification as
to various points in it. I continue to the date of this declaration to receive inquiries about the settlement
28
and its adminisfration. My participation m this action continues and based on my experience, will likely
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DECLARATION OF PLAINTIFF JOHN BOUDREAU
last until Primeritus satisfies the Settlement Agreement.
1
11. Participating in this case, the investigation, the briefing, the phone calls, and the
2
mediation, all required me to make time for the case, make travel plans, and also to arrange time away
3 from my work. During the course of the case, and my time as a Class Representative, I have remained
4 in close andfrequentcontact with Class Counsel. We have spoken or e-mailed about the litigation with
5 Primeritus on a regular basis; as events would develop, 1 would discuss them with Mr. Gutierrez.
6 12. 1 estimate I have spent over 200 hours being involved in this action.
7 13. Unlike the rest of the Class Members in this case, I understand that I am entering into a
fiill and complete release of all known and unknown claims (whereas the normal Class Members are only
8
releasing their wage-and-hour claims against the Defendant). I also risked my personal assets in the
9
prosecution of this claim because my fee agreement with Class Counsel obligates me to pay litigation
10 costs and there was always the risk that I would have to pay Defendant's costs and/or even attorneys'
11 fees, potentially, if we lost the case. I was informed that if I did not prevail, I could be held liable for
12 Defendant's attomey's fees and costs. Despite these risks, 1 chose to pursue what I believed was right.
13 14. In the negotiation of the settlement of this action, these issues were addressed. Based
14 upon my involvement in the litigation, the risk and the time I gave up, a "class representative
enhancement" or "incentive award" was negotiated. It is my understanding that such awards, generally
15
referred to as "incentive" awards, are given in class actions. They are intended to advance public poHcy
16
by encouraging individuals to come forward and perform their civic duty in protecting the rights of the
17 class and to compensate class representatives for their time, effort and inconvenience.
18 15. I feel that the amount being requested is fair and reasonable in light of the time, hours,
19 and anguish that I have put into this matter, together with the $3,900,000 Settlement Amount that my
20 attoraeys and I obtained from our efforts on behalf of the class. Moreover, my attomeys negotiated a
settlement whereby, because I am to receive an enhancement payment, I am also releasing all of my
21
claims, known and unknown, against Defendant. If the Court denies this request for a service
22
enhancement it willfrustratethe intent of the parties in designing the settlement in this way. I respectfully
23 request the Court to award me the full $25,000.00 service enhancement.
24 16. I regularly communicate with Alejandro P. Gutierrez ofthe Hathaway firm and Brian
25 Hefelfinger and Dan Palay of Palay Hefelfinger, APC to discuss this case. They have provided me with
26 numerous filings from the case, discovery and investigation materials, settlement documents, and other
case-related documents. I did not go to law school, do not have a law background, and do not always
27
immediately understand the legal terms or names of the documents filed on my behalf by my attoraeys.
28
17. However, because I communicate regularly with my attoraeys and ask lots of questions, I
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DECLARATION OF PLAINTIFF JOHN BOUDREAU
do have a general familiarity with my legal rights and the facts surrounding my potential claims in this
1
matter. I understand that 1 am the representative for the class of potential plaintiffs who were or are
2
employed by the Defendant in this case.
3 18. My interests in this case are not adverse to the interests of the other employees. In fact,
4 my interests are the same as those of the other employees, because we experienced the same alleged
5 violations which were set forth in the operative Complaint under Califomia law. I, and my fellow co-
6 workers, seek payment of wages, plus attendant penalties, interest, and attoraey's fees and costs. I have
7 and will continue to put the best interest of the Settlement Class first while performing my duties as a
class representative. I have been committed to vigorously prosecuting this case on behalf of myself and
8
the other employees.
9
1 declare under penalty of perjury under the laws of the State of Califomia that the foregoing is
10 tme and correct.
11
12 Executed on 11 /02 / 2021, at Cameron Park, Califomia.
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15 JOHN BOUDREAU
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DECLARATION OF PLAINTIFF JOHN BOUDREAU
Preview
1 Alejandro P. Gutierrez, SBN 107688 agutierrez@hathawaylawfirm. com FlLEDiPlDOR: HATHAWAY, PERRETT, WEBSTER, POWERS, 2 CHRISMAN & GUTIERREZ, APC 5450 Telegraph Road, Suite 200 NOV 1 2 2021 3 Venttira, CA 93006-3577 Telephone: (805)644-7111 Bv K. Madden. Deoutv Clerk 4 Facsimile: (805) 644-8296 5 Daniel J. Palay, SBN 159348 djp@calemploymentcounsel. com 6 Brian D. Hefelfmger, SBN 253054 bdh@calemploymentcounsel. com 7 PALAY HEFELFINGER, APC 1746 S. Victoria Avenue, Suite 230 8 Venmra, Cahforaia 93001 Tel: (805) 628-8220 9 Fax:(805)765-8600 ^10 Attorneys for Plaintiff JOHN BOUDREA U and the Certified Class jll 'l2 SUPERIOR COURT OF THE STATE OF CALIFORNIA |13 114 FOR THE COUNTY OF SACRAMENTO (UNLIMITED) 115 JOHN BOUDREAU, an individual, on behalfof Case No. 34-2018-00247272 16 himself and all others similarly situated. Complaint Filed: 12-27-18 Assigned to Dept. 41, Hon. David de Alba 17 Plaintiffs, DECLARATION OF PLAINTIFF JOHN 18 vs. BOUDREAU IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS PRIMERITUS FINANCIAL SERVICES, INC., ACTION AND PAGA SETTLEMENT 19 a Delaware Corporation; CHRIS 20 MCGUINNESS, an individual; and DOES 1 Date: December 3, 2021 through 10, inclusive. Time: 9:30 A.M. 21 Dept: 41 Defendants. 22 23 24 25 26 27 28 -1- DECLARATION OF PLAINTIFF JOHN BOUDREAU 1 TO ALL INTERESTED PARTIES AND TO THEIR ATTORNEYS OF RECORD: 2 1, JOHN BOUDREAU, hereby declare and state as follows: 3 1. I am a party in the above-entitled matter. I f called as a witness, I could and would 4 competently testify to the matters set forth herein based upon my personal knowledge. 5 2. I am a former employee of PRIMERITUS FINANCIAL SERVICES, INC. (the 6 "Defendant" herein), and I worked for Defendant within Califomia as an investigator/skip tracer during at 7 least the four years immediately prior to the commencement of this action. Defendant is one of the largest 8 repossession management and skip trace services nationwide, operating a facility in El Dorado Hills, Califomia. 9 3. I hired Alejandro P. Gutierrez at Hathaway, Perrett, Webster, Powers, Chrisman & 10 Gutierrez, APC and Palay Hefelfinger, APC ("Class Counsel") to deal with the employment issues I 11 experienced, because I researched that they have a wealth of experience in these types of cases. I wanted 12 to make sure that the Defendant properly pays its employees, and I hoped that doing so would cause it to 13 change its ways. 14 4. I began researching the legality of Primeritus's compensation plan in early 2017 using the intemet. I requested the formula of how overtime was calculated from the local HR representative and 15 was directed to the Corporate HR Manager who ignored my request for over a month. During my 16 research I concluded that Primeritus used a plan they called commission but in reality was a piece rate 17 plan. When I mquired into this I was repeatedly told the plan was commission based. 18 5. I continued my research ultimately seeking assistance from the Califoraia Labor 19 commission. During that process, I gathered and reviewed years of pay stubs in order to calculate how 20 much I was shorted by Primeritus in compensation. In late 2018, in a Labor Board meeting Primeritus 21 they admitted that the compensation plan was indeed a piece-rate plan. The Labor Commissioner then advised me to use a different calculation to determine the amount Primeritus had shorted me in 22 compensation. 23 6. At this point 1 began researching attomeys to represent me and potentially other 24 employees that had not been compensated correctly. I selected Alejandro Gutierrez based upon research 25 and several phone interviews where he impressed me with his knowledge and provided sfraight forward 26 answers to my many questions. 27 7. I then began gathering additional pay stubs, employee handbooks and other documents that 1 provided to Alejandro. I have spent many hours speaking to Alejandro, asking questions, being 28 educated on my case and the class that I chose to represent via phone calls, texts, and emails. When -2- DECLARATION OF PLAINTIFF JOHN BOUDREAU Primeritus advised their employees of my class action suit I then handled calls from current and former 1 employees explained the basis of the complaint and directed them to Alejandro. 2 8. I continued to ask questions, spent an enormous amount of time reviewing legal 3 documents. I took time off from work to be deposed over the course of a day, traveled to southern 4 Califoraia at my own expense to participate in an all-day mediation, then participated in a second all day 5 mediation several months later. 1 would estimate that 1 easily spent well in excess of 200 hours gathering 6 and transmitting documents, asking and answering questions from Alejandro and class members, 7 reviewing documents prepared by Alejandro and those submitted by Primeritus, preparing for deposition and mediation and then participating in them. 8 9. After I filed the lawsuit, Primeritus changed the manner in which it pays its 9 investigators/skip fracers in regard to minimum wages for rest periods and other unproductive time 10 worked. However, as a result of this litigation, it is very possible that I would have to discuss this lawsuit 11 to potential employers, and that it could have an adverse effect on my employability in this or other 12 industries. 13 10. As the sole representative Plaintiff in this case, I spent many hours engaging in conversations with Mr. Gutierrez and others discussing aspects of the case and helping direct the 14 investigation and negotiations that were conducted in this case. I have spent many hours reviewing the 15 evidence and aiding in the decisions to proceed. I participated in all of the following: Provided 16 information related to the facts in this action; confirmed receipt of documents; discussed deposition 17 schedule and prepared for my deposition; prepared and reviewed responses to vmtten discovery; was 18 briefed on an upcoming Primeritus deposition and Primeritus' interest in mediation; discussed mediation 19 and class certification with my attomey; reviewed the First Amended Complaint and duties of Class 20 Representative; attended my deposition for 8 hours; reviewed the damages model; reviewed the deposition transcript of Primeritus' corporate deponent;fraveledto Los Angeles for and participated in 21 all-day mediation; reviewed the motion for summary judgement; reviewed the Notice of class action 22 mailed to employees; reviewed Primeritus' opposition to suirmiary judgement; prepared for and 23 participated in a second mediation for 9 hours; reviewed settlement documents; reviewed amended 24 settlement documents and signed; provided summary of my efforts in class action. I also reviewed many, 25 many pages of data and records, along with the analysis of the records done by both my counsel and the 26 defense counsel. 1 worked with my attomeys to prepare our arguments, and responses to Primeritus' 27 arguments. I reviewed the very long Stipulation of Settlement and asked my counsel for clarification as to various points in it. I continue to the date of this declaration to receive inquiries about the settlement 28 and its adminisfration. My participation m this action continues and based on my experience, will likely -3- DECLARATION OF PLAINTIFF JOHN BOUDREAU last until Primeritus satisfies the Settlement Agreement. 1 11. Participating in this case, the investigation, the briefing, the phone calls, and the 2 mediation, all required me to make time for the case, make travel plans, and also to arrange time away 3 from my work. During the course of the case, and my time as a Class Representative, I have remained 4 in close andfrequentcontact with Class Counsel. We have spoken or e-mailed about the litigation with 5 Primeritus on a regular basis; as events would develop, 1 would discuss them with Mr. Gutierrez. 6 12. 1 estimate I have spent over 200 hours being involved in this action. 7 13. Unlike the rest of the Class Members in this case, I understand that I am entering into a fiill and complete release of all known and unknown claims (whereas the normal Class Members are only 8 releasing their wage-and-hour claims against the Defendant). I also risked my personal assets in the 9 prosecution of this claim because my fee agreement with Class Counsel obligates me to pay litigation 10 costs and there was always the risk that I would have to pay Defendant's costs and/or even attorneys' 11 fees, potentially, if we lost the case. I was informed that if I did not prevail, I could be held liable for 12 Defendant's attomey's fees and costs. Despite these risks, 1 chose to pursue what I believed was right. 13 14. In the negotiation of the settlement of this action, these issues were addressed. Based 14 upon my involvement in the litigation, the risk and the time I gave up, a "class representative enhancement" or "incentive award" was negotiated. It is my understanding that such awards, generally 15 referred to as "incentive" awards, are given in class actions. They are intended to advance public poHcy 16 by encouraging individuals to come forward and perform their civic duty in protecting the rights of the 17 class and to compensate class representatives for their time, effort and inconvenience. 18 15. I feel that the amount being requested is fair and reasonable in light of the time, hours, 19 and anguish that I have put into this matter, together with the $3,900,000 Settlement Amount that my 20 attoraeys and I obtained from our efforts on behalf of the class. Moreover, my attomeys negotiated a settlement whereby, because I am to receive an enhancement payment, I am also releasing all of my 21 claims, known and unknown, against Defendant. If the Court denies this request for a service 22 enhancement it willfrustratethe intent of the parties in designing the settlement in this way. I respectfully 23 request the Court to award me the full $25,000.00 service enhancement. 24 16. I regularly communicate with Alejandro P. Gutierrez ofthe Hathaway firm and Brian 25 Hefelfinger and Dan Palay of Palay Hefelfinger, APC to discuss this case. They have provided me with 26 numerous filings from the case, discovery and investigation materials, settlement documents, and other case-related documents. I did not go to law school, do not have a law background, and do not always 27 immediately understand the legal terms or names of the documents filed on my behalf by my attoraeys. 28 17. However, because I communicate regularly with my attoraeys and ask lots of questions, I -4- DECLARATION OF PLAINTIFF JOHN BOUDREAU do have a general familiarity with my legal rights and the facts surrounding my potential claims in this 1 matter. I understand that 1 am the representative for the class of potential plaintiffs who were or are 2 employed by the Defendant in this case. 3 18. My interests in this case are not adverse to the interests of the other employees. In fact, 4 my interests are the same as those of the other employees, because we experienced the same alleged 5 violations which were set forth in the operative Complaint under Califomia law. I, and my fellow co- 6 workers, seek payment of wages, plus attendant penalties, interest, and attoraey's fees and costs. I have 7 and will continue to put the best interest of the Settlement Class first while performing my duties as a class representative. I have been committed to vigorously prosecuting this case on behalf of myself and 8 the other employees. 9 1 declare under penalty of perjury under the laws of the State of Califomia that the foregoing is 10 tme and correct. 11 12 Executed on 11 /02 / 2021, at Cameron Park, Califomia. 13 14 15 JOHN BOUDREAU 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- DECLARATION OF PLAINTIFF JOHN BOUDREAU