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1 Kevin T. Barnes, Esq. (#138477)
Gregg Lander, Esq. (#194018) E-FILED
2 LAW OFFICES OF KEVIN T. BARNES 6/18/2019 2:04 PM
1635 Pontius Avenue, Second Floor Superior Court of California
3 Los Angeles, CA 90025-3361 County of Fresno
Tel.: (323) 549-9100 / Fax: (323) 549-0101
4 Email: Barnes@kbarnes.com By: A. Rodriguez, Deputy
5 Raphael A. Katri, Esq. (#221941)
LAW OFFICES OF RAPHAEL A. KATRI
6 8549 Wilshire Boulevard, Suite 200
Beverly Hills, CA 90211-3104
7 Tel.: (310) 940-2034 / Fax: (310) 733-5644
Email: RKatri@socallaborlawyers.com
8
Attorneys for Plaintiff JOSHUA L. WOODS,
9 on behalf of himself and all others similarly situated
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 FOR THE COUNTY OF FRESNO
12 JOSHUA L. WOODS, on behalf of himself ) CLASS ACTION
and all others similarly situated, )
13 ) Case No.: 16CECG01134
Plaintiff, )
14 ) MEMORANDUM OF POINTS AND
v. ) AUTHORITIES IN SUPPORT OF
15 ) PLAINTIFF’S MOTION FOR
FRESNO VALVES & CASTINGS, INC., a ) PRELIMINARY APPROVAL OF
16 California corporation; and DOES 1 to 100, ) CLASS ACTION SETTLEMENT
inclusive, )
17 ) Date: July 11, 2019
Defendants. ) Time: 3:30 p.m.
18 ) Dept.: 403
)
19 ) Honorable Rosemary McGuire
) Department 403
20 )
) Action filed: April 12, 2016
21 ) Trial Date: August 26, 2019
22 MEMORANDUM OF POINTS AND AUTHORITIES
23 This Memorandum is submitted in support of Plaintiff’s Motion for Preliminary
24 Approval of Class Action Settlement. The proposed settlement before this Court will dispose of
25 the action as to Defendant Fresno Valves & Castings, Inc., (hereinafter referred to as
26 “Defendant” or “Fresno Valves”) and the Released Parties (as defined in the Settlement
27 Agreement) except as to any Class Members who elect to exclude themselves (“opt-out”) from
28 the settlement Class.
LAW OFFICES OF
KEVIN T. BARNES
1635 PONTIUS AVENUE,
SECOND FLOOR
-i-
LOS ANGELES, CA 90025
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
TEL.: (323) 549-9100
FAX: (323) 549-0101
BARNES@KBARNES.COM MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION AND STATEMENT OF FACTS ........................................................... 1
4 II. THE CLASSES REPRESENTED .................................................................................... 3
5 III. THE TWO-STEP APPROVAL PROCESS ............................................................................. 3
6 IV. THE PRESUMPTION OF FAIRNESS .................................................................................... 5
7 V. PROPOSED SHARE PER CLASS MEMBER .................................................................7
8 VI. LIMITED STANDING TO OBJECT TO PROPOSED SETTLEMENT .........................8
9 VII. SETTLEMENT AGREEMENT AND ACCOMPANYING DOCUMENTS ...................8
10 VIII. CONDITIONAL CERTIFICATION OF THE CLASSES ................................................9
11 A. Class Certification Is Appropriate in this Case ............................................................9
12 B. The Proposed Classes Are Ascertainable and Numerous ..........................................10
13 C. Common Issues of Law or Fact Predominate ............................................................11
14 D. Plaintiff’s Claims Are Typical of the Class Claims ...................................................12
15 E. Adequacy of Representation ......................................................................................12
16 IX. PROPOSED SCHEDULE OF SETTLEMENT PROCEEDINGS ..................................13
17 X. ACTION REQUESTED AS PART OF THE MOTION FOR PRELIMINARY
APPROVAL .....................................................................................................................13
18
XI. CONCLUSION ................................................................................................................13
19
20
21
22
23
24
25
26
27
28
LAW OFFICES OF
KEVIN T. BARNES
1635 PONTIUS AVENUE,
SECOND FLOOR
- ii -
LOS ANGELES, CA 90025
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
TEL.: (323) 549-9100
FAX: (323) 549-0101
BARNES@KBARNES.COM MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
1 TABLE OF AUTHORITIES
2 Page
CASES
3
Ansari v. New York Univ.
4 (S.D.N.Y 1998) 179 F.R.D. 112 ..................................................................................................11
5 B.W.I. Custom Kitchen v. Owens-Illinois, Inc.
(1987) 191 Cal.App.3d 1341 .......................................................................................................12
6
Classen v. Weller
7 (1983) 145 Cal.App.3d 27 ...........................................................................................................12
8 Clothesrigger, Inc. v. GTE Corp.
(1987) 191 Cal.App. 3d 605 ..........................................................................................................................10
9
Dunk v. Ford Motor Co.
10 (1996) 48 Cal.4th 1794 ...............................................................................................................4,5
11 EEOC v. Printing Indus., Inc.
(D.D.C. 1981) 92 F.R.D. 51 .........................................................................................................11
12
Gould v. Alleco, Inc.
13 (4th Cir. 1989) 883 F.2d 281 ..........................................................................................................8
14 Hammon v. Barry
(D.D.C. 1990) 752 F.Supp 1087 ....................................................................................................6
15
In re Armored Car Antitrust Litigation
16 (N.D. Ga 1979) 472 F.Supp 1357 ..................................................................................................6
17 In re Chicken Antitrust Litigation
(N.D. Ga 1980) 560 F.Supp 957 ....................................................................................................5
18
In re Kirschner Med. Corp. Sec. Litig.
19 (D Md. 1991) 139 F.R.D. 74 ........................................................................................................11
20 In re School Asbestos Litigation
(3rd Cir. 1990) 921 F.2d 1330 .......................................................................................................8
21
Kullar v. Footlocker Retail Inc.
22 (2008) 169 Cal.App.4th 116 ..........................................................................................................5
23 Los Angeles Fire & Police Protective League v. City of Los Angeles
(1972) 23 Cal.App.3d 67 .............................................................................................................11
24
Linder v. Thrifty Oil Co.
25 (2000) 23 Cal. 4th 429 ...................................................................................................................9
26 Mars Steel Corp. v. Continental Illinois National Bank and Trust Co.
(7th Cir. 1987) 834 F.2d 677 ..........................................................................................................6
27
Officers for Justice v. Civil Service Com’n of City and County of S.F.,
28 (9th Cir. 1982) 688 F.2d 615, 625 .................................................................................................2
LAW OFFICES OF
KEVIN T. BARNES
1635 PONTIUS AVENUE,
SECOND FLOOR
- iii -
LOS ANGELES, CA 90025
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
TEL.: (323) 549-9100
FAX: (323) 549-0101
BARNES@KBARNES.COM MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
1 Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp.
(E.D. Pa. 1970) 323 F.Supp. 364, 372 ...........................................................................................2
2
Priddy v. Edelman
3 (6th Cir. 1989) 883 F.2d 438 ..........................................................................................................6
4 Ruch v. AM Retail Group, Inc.,
(N.D. Cal. 2016) 2016 WL 1161453, *11 .....................................................................................2
5
Richmond v. Dart Industries, Inc.
6 (1981) 29 Cal.3d 462 .....................................................................................................................9
7 Sav-On Drug Stores, Inc. v. Superior Court
(2004) 34 Cal.4th 319 ....................................................................................................................9
8
Slaven v. BP America, Inc.
9 (C.D. Cal. 2000) 190 F.R.D. 649 .................................................................................................11
10 Steinberg v. Carey
(S.D.N.Y. 1979) 470 F.Supp 471...................................................................................................6
11
Stephens v. Montgomery Ward & Co., Inc.
12 (1987) 193 Cal.App.3d 411 .........................................................................................................12
13
STATUTES AND REGULATIONS
14
California Business & Professions Code §17200. .........................................................................1
15
California Code of Civil Procedure §382 ......................................................................................9
16
California Code of Civil Procedure §1060 ....................................................................................1
17
California Labor Code §203 ..........................................................................................................1
18
California Labor Code §226 ..........................................................................................................1
19
California Labor Code §2699. .......................................................................................................1
20
OTHER AUTHORITIES
21
Manual for Complex Litigation, (Second) §30.44. ........................................................................3
22
Manual for Complex Litigation, (Third), § 30.41. .........................................................................3
23
5 Moore’s Federal Practice (Matthew Bender 3d ed. 1999).......................................................11
24
Newberg on Class Actions (3rd ed.)................................................................................................2
25
26
27
28
LAW OFFICES OF
KEVIN T. BARNES
1635 PONTIUS AVENUE,
SECOND FLOOR
- iv -
LOS ANGELES, CA 90025
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
TEL.: (323) 549-9100
FAX: (323) 549-0101
BARNES@KBARNES.COM MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
1 I.
2 INTRODUCTION AND STATEMENT OF FACTS
3 On or about April 12, 2016, Plaintiff Joshua Woods (“Plaintiff” or “Woods”) filed his
4 case on behalf of himself and other similarly situated putative class members against Defendant
5 Fresno Valve & Castings, Inc. (“Defendant”), Case No. 16CECG01134. Plaintiff alleges
6 Defendant: 1) failed to pay all wages due to unlawful rounding; 2) failed to pay all donning and
7 doffing wages; 3) failed to provide timely meal periods; 4) failed to authorize and permit all paid
8 rest periods; 5) performed illegal wage deductions and failed to fully reimburse business and
9 uniform expenses; 6) failed to timely provide accurate itemized wage statements that comply with
10 Labor Code §226(a)(1)-(9); 7) Violations of Labor Code §203; 8) are subject to penalties
11 pursuant to Labor Code §2699, et seq., the Private Attorneys General Act (“PAGA”); 9)
12 subjected hourly employees to unlawful, unfair and/or fraudulent business acts/practices in the
13 form of the above stated violations in violation of Business & Professions Code (“B&PC”)
14 §17200 et seq.; and 10) Declaratory Relief pursuant to CCP §1060. The complaint seeks
15 recovery of unpaid wages, liquidated damages, restitution, damages for actual injury, statutory
16 penalties, civil penalties, interest, attorneys’ fees and costs.
17 The parties in this matter have agreed to the settlement of $750,000, on a class wide basis
18 with no claim form requirement and with no residual to revert to the Defendant. This represents
19 54% of the realistic exposure in this case which demonstrates that the settlement is fair and
20 reasonable (See Declaration of Kevin T. Barnes, ¶’s 7-12; Declaration of Plaintiff’s expert
21 Bennett Berger (Exhibit 2 to the Barnes Declaration).
22 The standard for granting preliminary approval has been met here. The settlement was
23 the product of serious, informed, and non-collusive negotiations, that included two separate
24 mediations. Class Counsel have conducted a thorough investigation into the facts of the Lawsuit,
25 including formal and informal discovery and exchange of information. This has included review
26 of relevant documents, including but not limited to Defendant’s written policies and procedures,
27 time and pay records provided by Defendant. Class Counsel and the parties met and conferred
28 regarding discovery and the merits of the case resulting in the informal exchange of documents
LAW OFFICES OF -1-
KEVIN T. BARNES
SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
1635 PONTIUS AVENUE,
LOS ANGELES, CA 90025
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
TEL.: (323) 549-9100
FAX: (323) 549-0101
BARNES@KBARNES.COM
1 and data that allowed Class Counsel to evaluate the damage exposure. Class Counsel are
2 knowledgeable about and have done extensive research with respect to the applicable law and
3 potential defenses to the claims of the Settlement Classes.
4 The parties have attended two formal mediations. The first mediation was before
5 Honorable Howard R. Broadman on September 28, 2017 and the matter did not settle.
6 Thereafter, the parties attended a second mediation before mediator Steve Serratore on October
7 3, 2018. The matter did not settle at the second mediation; however, the parties continued direct
8 settlement negotiations and ultimately settled the case on December 19, 2018 (See Declaration of
9 Kevin T. Barnes, ¶ 7).
10 When settlement is preceded by a lengthy period of litigation, including “extensive pre-
11 mediation exchanges of information,” preliminary approval is appropriate. (See Ruch v. AM
12 Retail Group, Inc., 2016 WL 1161453, *11 (N.D. Cal. 2016)). A settlement reached through a
13 mediation, moreover, weighs in favor of preliminary approval. (See Ruch, supra, at *11).
14 (emphasis added). Preliminary approval is merely the prerequisite to giving notice so that “the
15 proposed settlement...may be submitted to members of the prospective Class for their acceptance
16 or rejection.” Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp.
17 (E.D. Pa. 1970) 323 F.Supp. 364, 372. Indeed, at the preliminary approval stage, “approval of
18 settlement classes is generally routine and courts are fairly forgiving of problems that might
19 hinder class certification were the case not to be settled.” Newberg on Class Actions § 11:28 (4th
20 ed.) Moreover, the opinions of counsel should be given considerable weight in class settlements
21 both because of counsel’s familiarity with the litigation and previous experience with cases such
22 as these. Officers for Justice v. Civil Service Com’n of City and County of S.F., 688 F.2d 615,
23 625 (9th Cir. 1982); see also Kullar v. Foot Locker Retail, Inc., 168 Cal.App.4th 116, 129 (2008)
24 (“The court undoubtedly should give considerable weight to the competency and integrity of
25 counsel and the involvement of a neutral mediator”). Here, Plaintiff’s counsel are experienced
26 class action lawyers, have thoroughly evaluated and examined the claims and defenses in this
27 case, and wholeheartedly support the proposed settlement.
28 The settlement in this case also “does not improperly grant preferential treatment to class
LAW OFFICES OF -2-
KEVIN T. BARNES
SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
1635 PONTIUS AVENUE,
LOS ANGELES, CA 90025
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
TEL.: (323) 549-9100
FAX: (323) 549-0101
BARNES@KBARNES.COM
1 representatives or segments of the class, and falls within the range of possible judicial approval.”
2 (See Manual for Complex Litigation, Third, § 30.41). Plaintiff will be treated the same as all
3 other class members. As such, the settlement allocation is consistent with and a result of the
4 facts discovered during the prosecution of this case.
5 Because Plaintiff satisfies his burden of establishing that settlement is “within the range
6 of possible approval,” this Court should grant this Motion and allow Plaintiff to begin notifying
7 putative class members of this settlement and their entitlement to proceeds from the settlement.
8 II.
9 THE CLASSES REPRESENTED
10 The settlement proposes the following Classes:
11 Class 1: All persons employed in California by Defendant as hourly paid employees from
12 April 12, 2012 through May 15, 2019.
13 Class 2: All persons employed in California by Defendant as hourly paid employees from
14 April 12, 2012 through May 15, 2019 who were required to don and doff Personal Protective
15 Equipment as part of their job description. All Class Members of this class are also members
16 of Class 1 so they will all receive a weekly settlement amount for both classes.
17 III.
18 THE TWO-STEP APPROVAL PROCESS
19 Any settlement of class litigation must be reviewed and approved by the Court. This is
20 done in two steps: (1) an early (preliminary) review by the Trial Court, and (2) a final review
21 after notice has been distributed to the Class Members for their comment or objections. The
22 Manual for Complex Litigation Second states at §30.44 (1985),
23 A two-step process is followed when considering class settlements …
if the proposed settlement appears to be the product of serious,
24 informed, non-collusive negotiations, has no obvious deficiencies,
does not improperly grant preferential treatment to Class
25 Representatives or segments of the class, and falls within the range of
possible approval, then the court should direct that notice be given to
26 the Class Members of a formal fairness hearing, at which evidence
may be presented in support of and in opposition to the settlement.
27
28 Thus, the preliminary approval of the Trial Court is simply a conditional finding that the
LAW OFFICES OF -3-
KEVIN T. BARNES
SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
1635 PONTIUS AVENUE,
LOS ANGELES, CA 90025
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
TEL.: (323) 549-9100
FAX: (323) 549-0101
BARNES@KBARNES.COM
1 settlement appears to be within the range of acceptable settlements. As Professor Newberg
2 comments, “The strength of the findings made by a judge at a preliminary hearing or conference
3 concerning a tentative settlement proposal may vary. The court may find that the settlement
4 proposal contains some merit, is within the range of reasonableness required for a settlement
5 offer or is presumptively valid subject only to any objections that may be raised at a final
6 hearing.” Newberg on Class Actions, 3rd Ed., 11.26.
7 The procedures for submission of a proposed settlement for preliminary approval are
8 discussed at Newberg on Class Actions, 3rd Ed., §11.24 – 11.26. Newberg observes at §11.24:
9 When the Parties to an action reach a monetary settlement, they
will usually prepare and execute a joint stipulation of settlement,
10 which is submitted to the court for preliminary approval. The
stipulation should set forth the central terms of the agreement,
11 including but not limited to, the amount of the settlement, form of
payment, manner of determining the effective date of settlement,
12 and any recapture clause.
13 The details of the recovery for each Class Member are set forth in the proposed
14 Settlement Agreement filed with the Declaration of Kevin T. Barnes, ¶’s 7-12; Declaration of
15 Plaintiff’s expert Bennett Berger (Exhibit 2 to the Barnes Declaration); Declaration of
16 Defendant Representative Kevin Follansbee (Exhibit 3 to the Barnes Declaration); and
17 Declaration of Plaintiff Joshua Woods (Exhibit 4 to the Barnes Declaration). The settlement for
18 each participating Class Member is fair, reasonable, and adequate, given the inherent risk of
19 litigation, the risk relative to class certification and trial, potential appeals and the costs of
20 litigation. Id.
21 To prevent fraud, collusion, or unfairness to the class, the settlement or dismissal of a
22 class action requires court approval. In order to protect those class members, including the
23 named Plaintiff, whose rights may not have been given due attention by the negotiating parties,
24 the court must determine whether the settlement is fair, adequate, and reasonable. Dunk v. Ford
25 Motor Co. (1996) 48 C.A.4th 1794.
26 The Court must look to the admissible evidence regarding the following factors specified
27 in Dunk v. Ford Motor Co., supra at 1800-1801:
28 A. Strength of Plaintiff’s case;
LAW OFFICES OF -4-
KEVIN T. BARNES
SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
1635 PONTIUS AVENUE,
LOS ANGELES, CA 90025
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
TEL.: (323) 549-9100
FAX: (323) 549-0101
BARNES@KBARNES.COM
1 B. The risk, expense, complexity and likely duration of further litigation;
2 C. The risk of maintaining class action status through trial;
3 D. With respect to the amount of the settlement, the number of “cents on the
4 dollar” or percentage of total damages the settlement represents; and
5 E. Presence (or lack thereof) of a governmental participant.
6 Further, the Court must take into consideration the Dunk factors and the
7 additional Kullar factor which is “the most important factor is the strength of the case for the
8 plaintiffs on the merits, balanced against the amount offered in settlement.” Kullar v. Footlocker
9 Retail Inc. 168 Cal. App 4th 116, 118; (See Barnes Decl., ¶ 7-12). The settlement represents
10 approximately 54% of the reasonable value of all claims (See Barnes Decl., ¶ 11; Declaration of
11 Plaintiff’s expert Bennett Berger (Exhibit 2 to the Barnes Declaration); and Declaration of
12 Defendant Representative Kevin Follansbee (Exhibit 3 to the Barnes Declaration). There is no
13 claim form required so all class members will be paid unless they opt out and there is no
14 reversion to Defendants. This case presented tremendous risks as to the class claims as
15 Defendant claims either there is no liability as to each claim and/or if liability exists individual
16 issues predominate. Finally, the only governmental involvement in this case is the existence of a
17 PAGA claim and the parties have notified the LWDA of this settlement (See Barnes Decl., ¶ 23
18 and Exhibit 7 to the Barnes Declaration). The settlement amount balanced against the merits of
19 the Plaintiff’s case is strong as set forth in detail in the Declaration of Kevin T. Barnes filed
20 concurrently herewith (See Barnes Decl., ¶ 7-12).
21 IV.
22 THE PRESUMPTION OF FAIRNESS
23 Courts presume the absence of fraud or collusion in the negotiation of a settlement unless
24 evidence to the contrary is offered. In short, there is a presumption that the negotiations were
25 conducted in good faith. Newberg, §11.51; In re Chicken Antitrust Litigation, 560 F.Supp. 957,
26 962 (N.D. Ga. 1980); Priddy v. Edelman, 883 F.2d 438, 447 (6th Cir. 1989); Mars Steel Corp. v.
27 Continental Illinois National Bank and Trust Co., 834 F.2d 677, 682 (7th Cir. 1987). Courts do
28 not substitute their judgment for that of the proponents, particularly where, as here, settlement
LAW OFFICES OF -5-
KEVIN T. BARNES
SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
1635 PONTIUS AVENUE,
LOS ANGELES, CA 90025
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
TEL.: (323) 549-9100
FAX: (323) 549-0101
BARNES@KBARNES.COM
1 has been reached with the participation of experienced counsel familiar with the litigation.
2 Hammon v. Barry, 752 F. Supp. 1087 (D.D.C. 1990); Steinberg v. Carey, 470 F.Supp. 471
3 (S.D.N.Y. 1979); In re Armored Car Antitrust Litigation, 472 F.Supp 1357 (N.D. Ga. 1979),
4 aff’d in part, rev’d in part in 645 F.2d 488 (5th Cir. 1981).
5 While the recommendations of counsel proposing the settlement are not conclusive, the
6 Court can properly take them into account, particularly where, as here, they have been involved
7 in litigation for almost three (3) years, appear to be competent, have substantial experience with
8 this type of litigation, and have received substantial evidence from the opposing party. (See
9 Newberg, §11.47.). Here, the Plaintiff’s firms involved in the case has a great deal of experience
10 in wage and hour class action litigation. The two firms advanced as Class Counsel have
11 substantial experience in wage and hour class action cases and have been approved as Class
12 Counsel in numerous other wage and hour class actions (See Declaration of Kevin T. Barnes, ¶’s
13 13-18; Declaration of Raphael A. Katri). Plaintiff’s attorneys and the Plaintiff have litigated this
14 matter for almost three years, including investigation, formal discovery and two mediations. To
15 prepare for both mediations, Defendant informally provided documentation and data related to
16 the claims asserted in this case as well as the number of work weeks, class size and other
17 necessary information for Plaintiff to create a damages exposure analysis. Plaintiff hired an
18 expert to prepare damage calculations and an exposure analysis for both mediations. The first
19 mediation was before Honorable Howard R. Broadman on September 28, 2017 and the matter
20 did not settle. Thereafter, the parties attended a second mediation before mediator Steve
21 Serratore. on October 3, 2018. The matter did not settle at the second mediation; however, the
22 parties continued direct settlement negotiations and ultimately settled the case on December 19,
23 2018 (See Declaration of Kevin T. Barnes, ¶ 7; Declaration of Raphael A. Katri).
24 The settlement is for a total amount of $750,000. This matter was settled with
25 no claim form requirement and with no residual to revert to the Defendant and Defendant will
26 pay their share of employer taxes in addition to this settlement amount (See Declaration of Kevin
27 T. Barnes, ¶’s 7-12).
28 V.
LAW OFFICES OF -6-
KEVIN T. BARNES
SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
1635 PONTIUS AVENUE,
LOS ANGELES, CA 90025
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
TEL.: (323) 549-9100
FAX: (323) 549-0101
BARNES@KBARNES.COM
1 PROPOSED SHARE PER CLASS MEMBER
2 1) Claimant Compensation:
3 Class 1: Each Class Member of this class will receive approximately $7.20 for each week
4 worked in the class period. The average class member will receive a settlement payment of
5 approximately $882 and the highest settlement payment will be approximately $2,569 (See
6 Declaration of Kevin T. Barnes Decl., ¶ 11). This amount shall be definitively calculated by the
7 Claims Administrator once this Court enters an order preliminarily approving of this Settlement.
8 Class 2: Each Class Member of this class will receive, in addition to their payment form
9 Class 1, approximately 30.5 cents for each week worked in the class period. The average class
10 member will receive a settlement payment of approximately $36 and the highest settlement
11 payment will be approximately $108 (See Declaration of Kevin T. Barnes, ¶ 11). All Class
12 Members of this class are also members of Class 1 so they will all receive a weekly
13 settlement amount for both classes.
14 The reason the members Class 1 are receiving approximately 3.7% of the payout when
15 compared to the members of Class 2 is because Class 2 payouts are only for the don and doff
16 claim whereas Class 1 is for the rounding claim, their meal and rest claims and the derivative
17 wage statement and waiting time penalty claims. The exposure for the Class 2 claims is
18 approximately 3.7% of the exposure for the Class 1 claims. Furthermore, this donning and
19 doffing claim is highly disputed by Defendant and its damages are partially cumulate of the
20 rounding claim (See Declaration of Kevin T. Barnes, ¶ 11; Declaration of Plaintiff’s expert
21 Bennett Berger, ¶ 11 (Exhibit 2 to the Barnes Declaration).
22 2) Attorneys’ Fees and Costs: Attorneys’ Fees: $250,000;
23 Costs: not to exceed $15,000 as verified by
Class Counsel and approved by the Court,
24 and claims administration costs
not to exceed $21,558;
25
3) Class Representative Enhancement: $10,000 to Plaintiff;
26
27 4) PAGA payment: $20,000 ($15,000 to the LWDA).
28
///
LAW OFFICES OF -7-
KEVIN T. BARNES
SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
1635 PONTIUS AVENUE,
LOS ANGELES, CA 90025
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
TEL.: (323) 549-9100
FAX: (323) 549-0101
BARNES@KBARNES.COM
1 I9VI.
2 LIMITED STANDING TO OBJECT TO PROPOSED SETTLEMENT
3 Non-settling parties or third parties sometimes attempt to object to settlements, but the
4 right of non-settling parties to object even at the final settlement approval hearing, let alone the
5 preliminary approval hearing, is quite limited. As a general rule, only Class Members have
6 standing to object to a proposed settlement. “Beginning from the unassailable premise that
7 settlements are to be encouraged, it follows that to routinely allow non-Class Members to inject
8 their concerns via objection at the settlement stage would tend to frustrate this goal.” Gould v.
9 Alleco, Inc., 883 F.2d 281, 284 (4th Cir. 1989).
10 As Newberg observes, even non-settling defendants in a multiple-defendant litigation
11 context have no standing to object to the fairness or adequacy of the settlement by other
12 defendants; they are limited to objecting to any terms that would preclude them from seeking
13 indemnification from the settling defendant. Newberg at §11.55. Because an application is being
14 filed to obtain a good faith determination, no one other than class members have standing to
15 object to a proposed settlement. In re School Asbestos Litigation, 921 F.2d 1330 (3rd Cir. 1990).
16 VII.
17 SETTLEMENT AGREEMENT AND ACCOMPANYING DOCUMENTS
18 The parties have finalized a formal Settlement Agreement. The parties are filing all
19 settlement and notice documents as follows: (1) Amended Stipulation And Settlement Of Class
20 And Representative Action (herein after “Stipulation”) (See Exhibit 1 to the Barnes
21 Declaration); (2) Notice of Settlement to Class (Exhibit 1 to Stipulation); (3) Request For
22 Exclusion Form (Exhibit 2 to Stipulation); (4) Objection Form (Exhibit 3 to Stipulation); (5)
23 Amended [Proposed] Order Granting Plaintiff’s Motion for Preliminary Approval of Class
24 Action Settlement (filed concurrently with this Motion); (6) First Amended Complaint (Exhibit
25 9 to the Barnes Declaration); and (7) stand alone settlement agreement for named Plaintiff
26 Joshua woods entitled Individual Confidential Settlement Agreement And Release Of All Claims
27 (Exhibit 10 to the Barnes Declaration). The parties respectfully request that this Court approve
28 those documents to be disseminated to the Class consistent with the manner and timing as set
LAW OFFICES OF -8-
KEVIN T. BARNES
SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
1635 PONTIUS AVENUE,
LOS ANGELES, CA 90025
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
TEL.: (323) 549-9100
FAX: (323) 549-0101
BARNES@KBARNES.COM
1 forth in this Memorandum.
2 The parties have agreed on Rust Consulting as the claims administrator and respectfully
3 request that this Court appoint Rust Consulting to handle the notice and claims administration
4 procedures (See Declaration of Eric Bishop of Rust Consulting (Exhibit 5 to the Barnes
5 Declaration).
6 VIII.
7 CONDITIONAL CERTIFICATION OF THE CLASSES
8 A. Class Certification Is Appropriate in this Case
9 The proposed settlement seeks conditional certification of a class. The certification of the
10 class is essential to the settlement. California public policy favors the use of the class action
11 device. Richmond v. Dart Industries (1981) 29 C3d 462, 469. CCP §382 authorizes class suits in
12 California when “the questions is one of the common or general interest, of many persons, or
13 when the parties are numerous, and it is impracticable to bring them all before the courts, one or
14 more may sue or defend for the benefit of all.” To obtain certification, a party must establish the
15 existence of both an ascertainable class and a well-defined community of interest among class
16 members. Linder v. Thrifty Oil Co. (2000) 23 Cal. 4th 429, 435. The “community of interest”
17 requirement depends on three factors: (1) whether common issues of law or fact predominate; (2)
18 whether the class representatives have claims that are typical of the class; and (3) whether the
19 class representatives will adequately represent the class. Richmond, supra, 29 Cal.3d at 470.
20 Because the policy of favoring use of class actions is so strong, any doubts as to the
21 appropriateness of class treatment must be resolved in favor of certification, subject to later
22 modification. Richmond, supra, 29 Cal.3d at 473-75. Except in extraordinary circumstances not
23 present here, the trial court does not weigh the merits of the claims in ruling on a motion for class
24 certification. Linder, supra, 23 Cal.4th at 443. The seminal California Supreme Court decision of
25 Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 has reemphasized the
26 procedural nature of the certification motion.
27 Here, class treatment is warranted for the classes. Evidence of the Defendant’s failure to
28 pay all wages owed based on their rounding practice, failure to provide meal and rest breaks and
LAW OFFICES OF -9-
KEVIN T. BARNES
SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
1635 PONTIUS AVENUE,
LOS ANGELES, CA 90025
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
TEL.: (323) 549-9100
FAX: (323) 549-0101
BARNES@KBARNES.COM
1 the derivative wage statement and waiting time claims are uniform and proven by objective
2 evidence and are applicable to all Class 1 hourly employees. The evidence consists of pay policy
3 documents, payroll records, time records, pay stubs and the testimony of the Plaintiff and the
4 Defendant representative (See the Barnes Declaration, ¶’s 3 and 7-12; Declaration of Plaintiff’s
5 expert Bennett Berger (Exhibit 3 to the Barnes Declaration); Declaration of Defendant
6 Representative Kevin Follansbee (Exhibit 4 to the Barnes Declaration); the Declaration of
7 Plaintiff Joshua Woods (Exhibit 6 to the Barnes Declaration).
8 Evidence of the Defendant’s failure to pay all time donning and doffing based on their
9 required donning and doffing policies and practices as set forth in the Summary of Defendants
10 Job Descriptions requiring donning and doffing are uniform and proven by objective evidence
11 and are applicable to all Class 2 hourly employees. The evidence consists of job descriptions,
12 and the testimony of the Plaintiff and the Defendant representative (See the Barnes Declaration,
13 ¶’s 3 and 7-12; Declaration of Plaintiff’s expert Bennett Berger (Exhibit 3 to the Barnes
14 Declaration); Declaration of Defendant Representative Kevin Follansbee (Exhibit 4 to the
15 Barnes Declaration); the Declaration of Plaintiff Joshua Woods (Exhibit 6 to the Barnes
16 Declaration).
17 B. The Proposed Classes Are Ascertainable and Numerous
18 For a class to exist, the class description must be sufficiently definite so that it is
19 administratively feasible for the court to determine whether a particular individual is a member
20 of the proposed class by reference to objective criteria. The class definition is sufficiently
21 specific to enable potential class members, and the court, to readily determine the parameters of
22 the class. (See, Clothesrigger, Inc. V. GTE Corp. (1987) 191 Cal.App.3d 605, 617.)
23 There are approximately 350 class members, all of which have been identified by
24 Defendant’s employment and payroll records (See the Barnes Declaration, ¶ 4); Declaration of
25 Defendant Representative Kevin Follansbee (Exhibit 4 to the Barnes Declaration). All of these
26 478 hourly employees are members of Class 1 as they were all paid via rounding and were
27 subjected to the same meal and rest period, wage statement and final pay policies. There are
28 approximately 460 members of Class 2 who were required by their Job Descriptions to don and
LAW OFFICES OF - 10 -
KEVIN T. BARNES
SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
1635 PONTIUS AVENUE,
LOS ANGELES, CA 90025
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
TEL.: (323) 549-9100
FAX: (323) 549-0101
BARNES@KBARNES.COM
1 doff Personal Protective Equipment (See the Barnes Declaration, ¶ 4); Declaration of Defendant
2 Representative Kevin Follansbee (Exhibit 4 to the Barnes Declaration and Exhibits B and C).
3 This is sufficient to satisfy numerosity requirements. As a general matter, courts have found that
4 numerosity is satisf
Preview
1 Kevin T. Barnes, Esq. (#138477) Gregg Lander, Esq. (#194018) E-FILED 2 LAW OFFICES OF KEVIN T. BARNES 6/18/2019 2:04 PM 1635 Pontius Avenue, Second Floor Superior Court of California 3 Los Angeles, CA 90025-3361 County of Fresno Tel.: (323) 549-9100 / Fax: (323) 549-0101 4 Email: Barnes@kbarnes.com By: A. Rodriguez, Deputy 5 Raphael A. Katri, Esq. (#221941) LAW OFFICES OF RAPHAEL A. KATRI 6 8549 Wilshire Boulevard, Suite 200 Beverly Hills, CA 90211-3104 7 Tel.: (310) 940-2034 / Fax: (310) 733-5644 Email: RKatri@socallaborlawyers.com 8 Attorneys for Plaintiff JOSHUA L. WOODS, 9 on behalf of himself and all others similarly situated 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF FRESNO 12 JOSHUA L. WOODS, on behalf of himself ) CLASS ACTION and all others similarly situated, ) 13 ) Case No.: 16CECG01134 Plaintiff, ) 14 ) MEMORANDUM OF POINTS AND v. ) AUTHORITIES IN SUPPORT OF 15 ) PLAINTIFF’S MOTION FOR FRESNO VALVES & CASTINGS, INC., a ) PRELIMINARY APPROVAL OF 16 California corporation; and DOES 1 to 100, ) CLASS ACTION SETTLEMENT inclusive, ) 17 ) Date: July 11, 2019 Defendants. ) Time: 3:30 p.m. 18 ) Dept.: 403 ) 19 ) Honorable Rosemary McGuire ) Department 403 20 ) ) Action filed: April 12, 2016 21 ) Trial Date: August 26, 2019 22 MEMORANDUM OF POINTS AND AUTHORITIES 23 This Memorandum is submitted in support of Plaintiff’s Motion for Preliminary 24 Approval of Class Action Settlement. The proposed settlement before this Court will dispose of 25 the action as to Defendant Fresno Valves & Castings, Inc., (hereinafter referred to as 26 “Defendant” or “Fresno Valves”) and the Released Parties (as defined in the Settlement 27 Agreement) except as to any Class Members who elect to exclude themselves (“opt-out”) from 28 the settlement Class. LAW OFFICES OF KEVIN T. BARNES 1635 PONTIUS AVENUE, SECOND FLOOR -i- LOS ANGELES, CA 90025 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S TEL.: (323) 549-9100 FAX: (323) 549-0101 BARNES@KBARNES.COM MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION AND STATEMENT OF FACTS ........................................................... 1 4 II. THE CLASSES REPRESENTED .................................................................................... 3 5 III. THE TWO-STEP APPROVAL PROCESS ............................................................................. 3 6 IV. THE PRESUMPTION OF FAIRNESS .................................................................................... 5 7 V. PROPOSED SHARE PER CLASS MEMBER .................................................................7 8 VI. LIMITED STANDING TO OBJECT TO PROPOSED SETTLEMENT .........................8 9 VII. SETTLEMENT AGREEMENT AND ACCOMPANYING DOCUMENTS ...................8 10 VIII. CONDITIONAL CERTIFICATION OF THE CLASSES ................................................9 11 A. Class Certification Is Appropriate in this Case ............................................................9 12 B. The Proposed Classes Are Ascertainable and Numerous ..........................................10 13 C. Common Issues of Law or Fact Predominate ............................................................11 14 D. Plaintiff’s Claims Are Typical of the Class Claims ...................................................12 15 E. Adequacy of Representation ......................................................................................12 16 IX. PROPOSED SCHEDULE OF SETTLEMENT PROCEEDINGS ..................................13 17 X. ACTION REQUESTED AS PART OF THE MOTION FOR PRELIMINARY APPROVAL .....................................................................................................................13 18 XI. CONCLUSION ................................................................................................................13 19 20 21 22 23 24 25 26 27 28 LAW OFFICES OF KEVIN T. BARNES 1635 PONTIUS AVENUE, SECOND FLOOR - ii - LOS ANGELES, CA 90025 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S TEL.: (323) 549-9100 FAX: (323) 549-0101 BARNES@KBARNES.COM MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 1 TABLE OF AUTHORITIES 2 Page CASES 3 Ansari v. New York Univ. 4 (S.D.N.Y 1998) 179 F.R.D. 112 ..................................................................................................11 5 B.W.I. Custom Kitchen v. Owens-Illinois, Inc. (1987) 191 Cal.App.3d 1341 .......................................................................................................12 6 Classen v. Weller 7 (1983) 145 Cal.App.3d 27 ...........................................................................................................12 8 Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App. 3d 605 ..........................................................................................................................10 9 Dunk v. Ford Motor Co. 10 (1996) 48 Cal.4th 1794 ...............................................................................................................4,5 11 EEOC v. Printing Indus., Inc. (D.D.C. 1981) 92 F.R.D. 51 .........................................................................................................11 12 Gould v. Alleco, Inc. 13 (4th Cir. 1989) 883 F.2d 281 ..........................................................................................................8 14 Hammon v. Barry (D.D.C. 1990) 752 F.Supp 1087 ....................................................................................................6 15 In re Armored Car Antitrust Litigation 16 (N.D. Ga 1979) 472 F.Supp 1357 ..................................................................................................6 17 In re Chicken Antitrust Litigation (N.D. Ga 1980) 560 F.Supp 957 ....................................................................................................5 18 In re Kirschner Med. Corp. Sec. Litig. 19 (D Md. 1991) 139 F.R.D. 74 ........................................................................................................11 20 In re School Asbestos Litigation (3rd Cir. 1990) 921 F.2d 1330 .......................................................................................................8 21 Kullar v. Footlocker Retail Inc. 22 (2008) 169 Cal.App.4th 116 ..........................................................................................................5 23 Los Angeles Fire & Police Protective League v. City of Los Angeles (1972) 23 Cal.App.3d 67 .............................................................................................................11 24 Linder v. Thrifty Oil Co. 25 (2000) 23 Cal. 4th 429 ...................................................................................................................9 26 Mars Steel Corp. v. Continental Illinois National Bank and Trust Co. (7th Cir. 1987) 834 F.2d 677 ..........................................................................................................6 27 Officers for Justice v. Civil Service Com’n of City and County of S.F., 28 (9th Cir. 1982) 688 F.2d 615, 625 .................................................................................................2 LAW OFFICES OF KEVIN T. BARNES 1635 PONTIUS AVENUE, SECOND FLOOR - iii - LOS ANGELES, CA 90025 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S TEL.: (323) 549-9100 FAX: (323) 549-0101 BARNES@KBARNES.COM MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 1 Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp. (E.D. Pa. 1970) 323 F.Supp. 364, 372 ...........................................................................................2 2 Priddy v. Edelman 3 (6th Cir. 1989) 883 F.2d 438 ..........................................................................................................6 4 Ruch v. AM Retail Group, Inc., (N.D. Cal. 2016) 2016 WL 1161453, *11 .....................................................................................2 5 Richmond v. Dart Industries, Inc. 6 (1981) 29 Cal.3d 462 .....................................................................................................................9 7 Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319 ....................................................................................................................9 8 Slaven v. BP America, Inc. 9 (C.D. Cal. 2000) 190 F.R.D. 649 .................................................................................................11 10 Steinberg v. Carey (S.D.N.Y. 1979) 470 F.Supp 471...................................................................................................6 11 Stephens v. Montgomery Ward & Co., Inc. 12 (1987) 193 Cal.App.3d 411 .........................................................................................................12 13 STATUTES AND REGULATIONS 14 California Business & Professions Code §17200. .........................................................................1 15 California Code of Civil Procedure §382 ......................................................................................9 16 California Code of Civil Procedure §1060 ....................................................................................1 17 California Labor Code §203 ..........................................................................................................1 18 California Labor Code §226 ..........................................................................................................1 19 California Labor Code §2699. .......................................................................................................1 20 OTHER AUTHORITIES 21 Manual for Complex Litigation, (Second) §30.44. ........................................................................3 22 Manual for Complex Litigation, (Third), § 30.41. .........................................................................3 23 5 Moore’s Federal Practice (Matthew Bender 3d ed. 1999).......................................................11 24 Newberg on Class Actions (3rd ed.)................................................................................................2 25 26 27 28 LAW OFFICES OF KEVIN T. BARNES 1635 PONTIUS AVENUE, SECOND FLOOR - iv - LOS ANGELES, CA 90025 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S TEL.: (323) 549-9100 FAX: (323) 549-0101 BARNES@KBARNES.COM MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 1 I. 2 INTRODUCTION AND STATEMENT OF FACTS 3 On or about April 12, 2016, Plaintiff Joshua Woods (“Plaintiff” or “Woods”) filed his 4 case on behalf of himself and other similarly situated putative class members against Defendant 5 Fresno Valve & Castings, Inc. (“Defendant”), Case No. 16CECG01134. Plaintiff alleges 6 Defendant: 1) failed to pay all wages due to unlawful rounding; 2) failed to pay all donning and 7 doffing wages; 3) failed to provide timely meal periods; 4) failed to authorize and permit all paid 8 rest periods; 5) performed illegal wage deductions and failed to fully reimburse business and 9 uniform expenses; 6) failed to timely provide accurate itemized wage statements that comply with 10 Labor Code §226(a)(1)-(9); 7) Violations of Labor Code §203; 8) are subject to penalties 11 pursuant to Labor Code §2699, et seq., the Private Attorneys General Act (“PAGA”); 9) 12 subjected hourly employees to unlawful, unfair and/or fraudulent business acts/practices in the 13 form of the above stated violations in violation of Business & Professions Code (“B&PC”) 14 §17200 et seq.; and 10) Declaratory Relief pursuant to CCP §1060. The complaint seeks 15 recovery of unpaid wages, liquidated damages, restitution, damages for actual injury, statutory 16 penalties, civil penalties, interest, attorneys’ fees and costs. 17 The parties in this matter have agreed to the settlement of $750,000, on a class wide basis 18 with no claim form requirement and with no residual to revert to the Defendant. This represents 19 54% of the realistic exposure in this case which demonstrates that the settlement is fair and 20 reasonable (See Declaration of Kevin T. Barnes, ¶’s 7-12; Declaration of Plaintiff’s expert 21 Bennett Berger (Exhibit 2 to the Barnes Declaration). 22 The standard for granting preliminary approval has been met here. The settlement was 23 the product of serious, informed, and non-collusive negotiations, that included two separate 24 mediations. Class Counsel have conducted a thorough investigation into the facts of the Lawsuit, 25 including formal and informal discovery and exchange of information. This has included review 26 of relevant documents, including but not limited to Defendant’s written policies and procedures, 27 time and pay records provided by Defendant. Class Counsel and the parties met and conferred 28 regarding discovery and the merits of the case resulting in the informal exchange of documents LAW OFFICES OF -1- KEVIN T. BARNES SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S 1635 PONTIUS AVENUE, LOS ANGELES, CA 90025 MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT TEL.: (323) 549-9100 FAX: (323) 549-0101 BARNES@KBARNES.COM 1 and data that allowed Class Counsel to evaluate the damage exposure. Class Counsel are 2 knowledgeable about and have done extensive research with respect to the applicable law and 3 potential defenses to the claims of the Settlement Classes. 4 The parties have attended two formal mediations. The first mediation was before 5 Honorable Howard R. Broadman on September 28, 2017 and the matter did not settle. 6 Thereafter, the parties attended a second mediation before mediator Steve Serratore on October 7 3, 2018. The matter did not settle at the second mediation; however, the parties continued direct 8 settlement negotiations and ultimately settled the case on December 19, 2018 (See Declaration of 9 Kevin T. Barnes, ¶ 7). 10 When settlement is preceded by a lengthy period of litigation, including “extensive pre- 11 mediation exchanges of information,” preliminary approval is appropriate. (See Ruch v. AM 12 Retail Group, Inc., 2016 WL 1161453, *11 (N.D. Cal. 2016)). A settlement reached through a 13 mediation, moreover, weighs in favor of preliminary approval. (See Ruch, supra, at *11). 14 (emphasis added). Preliminary approval is merely the prerequisite to giving notice so that “the 15 proposed settlement...may be submitted to members of the prospective Class for their acceptance 16 or rejection.” Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp. 17 (E.D. Pa. 1970) 323 F.Supp. 364, 372. Indeed, at the preliminary approval stage, “approval of 18 settlement classes is generally routine and courts are fairly forgiving of problems that might 19 hinder class certification were the case not to be settled.” Newberg on Class Actions § 11:28 (4th 20 ed.) Moreover, the opinions of counsel should be given considerable weight in class settlements 21 both because of counsel’s familiarity with the litigation and previous experience with cases such 22 as these. Officers for Justice v. Civil Service Com’n of City and County of S.F., 688 F.2d 615, 23 625 (9th Cir. 1982); see also Kullar v. Foot Locker Retail, Inc., 168 Cal.App.4th 116, 129 (2008) 24 (“The court undoubtedly should give considerable weight to the competency and integrity of 25 counsel and the involvement of a neutral mediator”). Here, Plaintiff’s counsel are experienced 26 class action lawyers, have thoroughly evaluated and examined the claims and defenses in this 27 case, and wholeheartedly support the proposed settlement. 28 The settlement in this case also “does not improperly grant preferential treatment to class LAW OFFICES OF -2- KEVIN T. BARNES SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S 1635 PONTIUS AVENUE, LOS ANGELES, CA 90025 MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT TEL.: (323) 549-9100 FAX: (323) 549-0101 BARNES@KBARNES.COM 1 representatives or segments of the class, and falls within the range of possible judicial approval.” 2 (See Manual for Complex Litigation, Third, § 30.41). Plaintiff will be treated the same as all 3 other class members. As such, the settlement allocation is consistent with and a result of the 4 facts discovered during the prosecution of this case. 5 Because Plaintiff satisfies his burden of establishing that settlement is “within the range 6 of possible approval,” this Court should grant this Motion and allow Plaintiff to begin notifying 7 putative class members of this settlement and their entitlement to proceeds from the settlement. 8 II. 9 THE CLASSES REPRESENTED 10 The settlement proposes the following Classes: 11 Class 1: All persons employed in California by Defendant as hourly paid employees from 12 April 12, 2012 through May 15, 2019. 13 Class 2: All persons employed in California by Defendant as hourly paid employees from 14 April 12, 2012 through May 15, 2019 who were required to don and doff Personal Protective 15 Equipment as part of their job description. All Class Members of this class are also members 16 of Class 1 so they will all receive a weekly settlement amount for both classes. 17 III. 18 THE TWO-STEP APPROVAL PROCESS 19 Any settlement of class litigation must be reviewed and approved by the Court. This is 20 done in two steps: (1) an early (preliminary) review by the Trial Court, and (2) a final review 21 after notice has been distributed to the Class Members for their comment or objections. The 22 Manual for Complex Litigation Second states at §30.44 (1985), 23 A two-step process is followed when considering class settlements … if the proposed settlement appears to be the product of serious, 24 informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to Class 25 Representatives or segments of the class, and falls within the range of possible approval, then the court should direct that notice be given to 26 the Class Members of a formal fairness hearing, at which evidence may be presented in support of and in opposition to the settlement. 27 28 Thus, the preliminary approval of the Trial Court is simply a conditional finding that the LAW OFFICES OF -3- KEVIN T. BARNES SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S 1635 PONTIUS AVENUE, LOS ANGELES, CA 90025 MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT TEL.: (323) 549-9100 FAX: (323) 549-0101 BARNES@KBARNES.COM 1 settlement appears to be within the range of acceptable settlements. As Professor Newberg 2 comments, “The strength of the findings made by a judge at a preliminary hearing or conference 3 concerning a tentative settlement proposal may vary. The court may find that the settlement 4 proposal contains some merit, is within the range of reasonableness required for a settlement 5 offer or is presumptively valid subject only to any objections that may be raised at a final 6 hearing.” Newberg on Class Actions, 3rd Ed., 11.26. 7 The procedures for submission of a proposed settlement for preliminary approval are 8 discussed at Newberg on Class Actions, 3rd Ed., §11.24 – 11.26. Newberg observes at §11.24: 9 When the Parties to an action reach a monetary settlement, they will usually prepare and execute a joint stipulation of settlement, 10 which is submitted to the court for preliminary approval. The stipulation should set forth the central terms of the agreement, 11 including but not limited to, the amount of the settlement, form of payment, manner of determining the effective date of settlement, 12 and any recapture clause. 13 The details of the recovery for each Class Member are set forth in the proposed 14 Settlement Agreement filed with the Declaration of Kevin T. Barnes, ¶’s 7-12; Declaration of 15 Plaintiff’s expert Bennett Berger (Exhibit 2 to the Barnes Declaration); Declaration of 16 Defendant Representative Kevin Follansbee (Exhibit 3 to the Barnes Declaration); and 17 Declaration of Plaintiff Joshua Woods (Exhibit 4 to the Barnes Declaration). The settlement for 18 each participating Class Member is fair, reasonable, and adequate, given the inherent risk of 19 litigation, the risk relative to class certification and trial, potential appeals and the costs of 20 litigation. Id. 21 To prevent fraud, collusion, or unfairness to the class, the settlement or dismissal of a 22 class action requires court approval. In order to protect those class members, including the 23 named Plaintiff, whose rights may not have been given due attention by the negotiating parties, 24 the court must determine whether the settlement is fair, adequate, and reasonable. Dunk v. Ford 25 Motor Co. (1996) 48 C.A.4th 1794. 26 The Court must look to the admissible evidence regarding the following factors specified 27 in Dunk v. Ford Motor Co., supra at 1800-1801: 28 A. Strength of Plaintiff’s case; LAW OFFICES OF -4- KEVIN T. BARNES SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S 1635 PONTIUS AVENUE, LOS ANGELES, CA 90025 MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT TEL.: (323) 549-9100 FAX: (323) 549-0101 BARNES@KBARNES.COM 1 B. The risk, expense, complexity and likely duration of further litigation; 2 C. The risk of maintaining class action status through trial; 3 D. With respect to the amount of the settlement, the number of “cents on the 4 dollar” or percentage of total damages the settlement represents; and 5 E. Presence (or lack thereof) of a governmental participant. 6 Further, the Court must take into consideration the Dunk factors and the 7 additional Kullar factor which is “the most important factor is the strength of the case for the 8 plaintiffs on the merits, balanced against the amount offered in settlement.” Kullar v. Footlocker 9 Retail Inc. 168 Cal. App 4th 116, 118; (See Barnes Decl., ¶ 7-12). The settlement represents 10 approximately 54% of the reasonable value of all claims (See Barnes Decl., ¶ 11; Declaration of 11 Plaintiff’s expert Bennett Berger (Exhibit 2 to the Barnes Declaration); and Declaration of 12 Defendant Representative Kevin Follansbee (Exhibit 3 to the Barnes Declaration). There is no 13 claim form required so all class members will be paid unless they opt out and there is no 14 reversion to Defendants. This case presented tremendous risks as to the class claims as 15 Defendant claims either there is no liability as to each claim and/or if liability exists individual 16 issues predominate. Finally, the only governmental involvement in this case is the existence of a 17 PAGA claim and the parties have notified the LWDA of this settlement (See Barnes Decl., ¶ 23 18 and Exhibit 7 to the Barnes Declaration). The settlement amount balanced against the merits of 19 the Plaintiff’s case is strong as set forth in detail in the Declaration of Kevin T. Barnes filed 20 concurrently herewith (See Barnes Decl., ¶ 7-12). 21 IV. 22 THE PRESUMPTION OF FAIRNESS 23 Courts presume the absence of fraud or collusion in the negotiation of a settlement unless 24 evidence to the contrary is offered. In short, there is a presumption that the negotiations were 25 conducted in good faith. Newberg, §11.51; In re Chicken Antitrust Litigation, 560 F.Supp. 957, 26 962 (N.D. Ga. 1980); Priddy v. Edelman, 883 F.2d 438, 447 (6th Cir. 1989); Mars Steel Corp. v. 27 Continental Illinois National Bank and Trust Co., 834 F.2d 677, 682 (7th Cir. 1987). Courts do 28 not substitute their judgment for that of the proponents, particularly where, as here, settlement LAW OFFICES OF -5- KEVIN T. BARNES SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S 1635 PONTIUS AVENUE, LOS ANGELES, CA 90025 MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT TEL.: (323) 549-9100 FAX: (323) 549-0101 BARNES@KBARNES.COM 1 has been reached with the participation of experienced counsel familiar with the litigation. 2 Hammon v. Barry, 752 F. Supp. 1087 (D.D.C. 1990); Steinberg v. Carey, 470 F.Supp. 471 3 (S.D.N.Y. 1979); In re Armored Car Antitrust Litigation, 472 F.Supp 1357 (N.D. Ga. 1979), 4 aff’d in part, rev’d in part in 645 F.2d 488 (5th Cir. 1981). 5 While the recommendations of counsel proposing the settlement are not conclusive, the 6 Court can properly take them into account, particularly where, as here, they have been involved 7 in litigation for almost three (3) years, appear to be competent, have substantial experience with 8 this type of litigation, and have received substantial evidence from the opposing party. (See 9 Newberg, §11.47.). Here, the Plaintiff’s firms involved in the case has a great deal of experience 10 in wage and hour class action litigation. The two firms advanced as Class Counsel have 11 substantial experience in wage and hour class action cases and have been approved as Class 12 Counsel in numerous other wage and hour class actions (See Declaration of Kevin T. Barnes, ¶’s 13 13-18; Declaration of Raphael A. Katri). Plaintiff’s attorneys and the Plaintiff have litigated this 14 matter for almost three years, including investigation, formal discovery and two mediations. To 15 prepare for both mediations, Defendant informally provided documentation and data related to 16 the claims asserted in this case as well as the number of work weeks, class size and other 17 necessary information for Plaintiff to create a damages exposure analysis. Plaintiff hired an 18 expert to prepare damage calculations and an exposure analysis for both mediations. The first 19 mediation was before Honorable Howard R. Broadman on September 28, 2017 and the matter 20 did not settle. Thereafter, the parties attended a second mediation before mediator Steve 21 Serratore. on October 3, 2018. The matter did not settle at the second mediation; however, the 22 parties continued direct settlement negotiations and ultimately settled the case on December 19, 23 2018 (See Declaration of Kevin T. Barnes, ¶ 7; Declaration of Raphael A. Katri). 24 The settlement is for a total amount of $750,000. This matter was settled with 25 no claim form requirement and with no residual to revert to the Defendant and Defendant will 26 pay their share of employer taxes in addition to this settlement amount (See Declaration of Kevin 27 T. Barnes, ¶’s 7-12). 28 V. LAW OFFICES OF -6- KEVIN T. BARNES SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S 1635 PONTIUS AVENUE, LOS ANGELES, CA 90025 MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT TEL.: (323) 549-9100 FAX: (323) 549-0101 BARNES@KBARNES.COM 1 PROPOSED SHARE PER CLASS MEMBER 2 1) Claimant Compensation: 3 Class 1: Each Class Member of this class will receive approximately $7.20 for each week 4 worked in the class period. The average class member will receive a settlement payment of 5 approximately $882 and the highest settlement payment will be approximately $2,569 (See 6 Declaration of Kevin T. Barnes Decl., ¶ 11). This amount shall be definitively calculated by the 7 Claims Administrator once this Court enters an order preliminarily approving of this Settlement. 8 Class 2: Each Class Member of this class will receive, in addition to their payment form 9 Class 1, approximately 30.5 cents for each week worked in the class period. The average class 10 member will receive a settlement payment of approximately $36 and the highest settlement 11 payment will be approximately $108 (See Declaration of Kevin T. Barnes, ¶ 11). All Class 12 Members of this class are also members of Class 1 so they will all receive a weekly 13 settlement amount for both classes. 14 The reason the members Class 1 are receiving approximately 3.7% of the payout when 15 compared to the members of Class 2 is because Class 2 payouts are only for the don and doff 16 claim whereas Class 1 is for the rounding claim, their meal and rest claims and the derivative 17 wage statement and waiting time penalty claims. The exposure for the Class 2 claims is 18 approximately 3.7% of the exposure for the Class 1 claims. Furthermore, this donning and 19 doffing claim is highly disputed by Defendant and its damages are partially cumulate of the 20 rounding claim (See Declaration of Kevin T. Barnes, ¶ 11; Declaration of Plaintiff’s expert 21 Bennett Berger, ¶ 11 (Exhibit 2 to the Barnes Declaration). 22 2) Attorneys’ Fees and Costs: Attorneys’ Fees: $250,000; 23 Costs: not to exceed $15,000 as verified by Class Counsel and approved by the Court, 24 and claims administration costs not to exceed $21,558; 25 3) Class Representative Enhancement: $10,000 to Plaintiff; 26 27 4) PAGA payment: $20,000 ($15,000 to the LWDA). 28 /// LAW OFFICES OF -7- KEVIN T. BARNES SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S 1635 PONTIUS AVENUE, LOS ANGELES, CA 90025 MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT TEL.: (323) 549-9100 FAX: (323) 549-0101 BARNES@KBARNES.COM 1 I9VI. 2 LIMITED STANDING TO OBJECT TO PROPOSED SETTLEMENT 3 Non-settling parties or third parties sometimes attempt to object to settlements, but the 4 right of non-settling parties to object even at the final settlement approval hearing, let alone the 5 preliminary approval hearing, is quite limited. As a general rule, only Class Members have 6 standing to object to a proposed settlement. “Beginning from the unassailable premise that 7 settlements are to be encouraged, it follows that to routinely allow non-Class Members to inject 8 their concerns via objection at the settlement stage would tend to frustrate this goal.” Gould v. 9 Alleco, Inc., 883 F.2d 281, 284 (4th Cir. 1989). 10 As Newberg observes, even non-settling defendants in a multiple-defendant litigation 11 context have no standing to object to the fairness or adequacy of the settlement by other 12 defendants; they are limited to objecting to any terms that would preclude them from seeking 13 indemnification from the settling defendant. Newberg at §11.55. Because an application is being 14 filed to obtain a good faith determination, no one other than class members have standing to 15 object to a proposed settlement. In re School Asbestos Litigation, 921 F.2d 1330 (3rd Cir. 1990). 16 VII. 17 SETTLEMENT AGREEMENT AND ACCOMPANYING DOCUMENTS 18 The parties have finalized a formal Settlement Agreement. The parties are filing all 19 settlement and notice documents as follows: (1) Amended Stipulation And Settlement Of Class 20 And Representative Action (herein after “Stipulation”) (See Exhibit 1 to the Barnes 21 Declaration); (2) Notice of Settlement to Class (Exhibit 1 to Stipulation); (3) Request For 22 Exclusion Form (Exhibit 2 to Stipulation); (4) Objection Form (Exhibit 3 to Stipulation); (5) 23 Amended [Proposed] Order Granting Plaintiff’s Motion for Preliminary Approval of Class 24 Action Settlement (filed concurrently with this Motion); (6) First Amended Complaint (Exhibit 25 9 to the Barnes Declaration); and (7) stand alone settlement agreement for named Plaintiff 26 Joshua woods entitled Individual Confidential Settlement Agreement And Release Of All Claims 27 (Exhibit 10 to the Barnes Declaration). The parties respectfully request that this Court approve 28 those documents to be disseminated to the Class consistent with the manner and timing as set LAW OFFICES OF -8- KEVIN T. BARNES SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S 1635 PONTIUS AVENUE, LOS ANGELES, CA 90025 MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT TEL.: (323) 549-9100 FAX: (323) 549-0101 BARNES@KBARNES.COM 1 forth in this Memorandum. 2 The parties have agreed on Rust Consulting as the claims administrator and respectfully 3 request that this Court appoint Rust Consulting to handle the notice and claims administration 4 procedures (See Declaration of Eric Bishop of Rust Consulting (Exhibit 5 to the Barnes 5 Declaration). 6 VIII. 7 CONDITIONAL CERTIFICATION OF THE CLASSES 8 A. Class Certification Is Appropriate in this Case 9 The proposed settlement seeks conditional certification of a class. The certification of the 10 class is essential to the settlement. California public policy favors the use of the class action 11 device. Richmond v. Dart Industries (1981) 29 C3d 462, 469. CCP §382 authorizes class suits in 12 California when “the questions is one of the common or general interest, of many persons, or 13 when the parties are numerous, and it is impracticable to bring them all before the courts, one or 14 more may sue or defend for the benefit of all.” To obtain certification, a party must establish the 15 existence of both an ascertainable class and a well-defined community of interest among class 16 members. Linder v. Thrifty Oil Co. (2000) 23 Cal. 4th 429, 435. The “community of interest” 17 requirement depends on three factors: (1) whether common issues of law or fact predominate; (2) 18 whether the class representatives have claims that are typical of the class; and (3) whether the 19 class representatives will adequately represent the class. Richmond, supra, 29 Cal.3d at 470. 20 Because the policy of favoring use of class actions is so strong, any doubts as to the 21 appropriateness of class treatment must be resolved in favor of certification, subject to later 22 modification. Richmond, supra, 29 Cal.3d at 473-75. Except in extraordinary circumstances not 23 present here, the trial court does not weigh the merits of the claims in ruling on a motion for class 24 certification. Linder, supra, 23 Cal.4th at 443. The seminal California Supreme Court decision of 25 Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 has reemphasized the 26 procedural nature of the certification motion. 27 Here, class treatment is warranted for the classes. Evidence of the Defendant’s failure to 28 pay all wages owed based on their rounding practice, failure to provide meal and rest breaks and LAW OFFICES OF -9- KEVIN T. BARNES SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S 1635 PONTIUS AVENUE, LOS ANGELES, CA 90025 MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT TEL.: (323) 549-9100 FAX: (323) 549-0101 BARNES@KBARNES.COM 1 the derivative wage statement and waiting time claims are uniform and proven by objective 2 evidence and are applicable to all Class 1 hourly employees. The evidence consists of pay policy 3 documents, payroll records, time records, pay stubs and the testimony of the Plaintiff and the 4 Defendant representative (See the Barnes Declaration, ¶’s 3 and 7-12; Declaration of Plaintiff’s 5 expert Bennett Berger (Exhibit 3 to the Barnes Declaration); Declaration of Defendant 6 Representative Kevin Follansbee (Exhibit 4 to the Barnes Declaration); the Declaration of 7 Plaintiff Joshua Woods (Exhibit 6 to the Barnes Declaration). 8 Evidence of the Defendant’s failure to pay all time donning and doffing based on their 9 required donning and doffing policies and practices as set forth in the Summary of Defendants 10 Job Descriptions requiring donning and doffing are uniform and proven by objective evidence 11 and are applicable to all Class 2 hourly employees. The evidence consists of job descriptions, 12 and the testimony of the Plaintiff and the Defendant representative (See the Barnes Declaration, 13 ¶’s 3 and 7-12; Declaration of Plaintiff’s expert Bennett Berger (Exhibit 3 to the Barnes 14 Declaration); Declaration of Defendant Representative Kevin Follansbee (Exhibit 4 to the 15 Barnes Declaration); the Declaration of Plaintiff Joshua Woods (Exhibit 6 to the Barnes 16 Declaration). 17 B. The Proposed Classes Are Ascertainable and Numerous 18 For a class to exist, the class description must be sufficiently definite so that it is 19 administratively feasible for the court to determine whether a particular individual is a member 20 of the proposed class by reference to objective criteria. The class definition is sufficiently 21 specific to enable potential class members, and the court, to readily determine the parameters of 22 the class. (See, Clothesrigger, Inc. V. GTE Corp. (1987) 191 Cal.App.3d 605, 617.) 23 There are approximately 350 class members, all of which have been identified by 24 Defendant’s employment and payroll records (See the Barnes Declaration, ¶ 4); Declaration of 25 Defendant Representative Kevin Follansbee (Exhibit 4 to the Barnes Declaration). All of these 26 478 hourly employees are members of Class 1 as they were all paid via rounding and were 27 subjected to the same meal and rest period, wage statement and final pay policies. There are 28 approximately 460 members of Class 2 who were required by their Job Descriptions to don and LAW OFFICES OF - 10 - KEVIN T. BARNES SECOND FLOOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S 1635 PONTIUS AVENUE, LOS ANGELES, CA 90025 MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT TEL.: (323) 549-9100 FAX: (323) 549-0101 BARNES@KBARNES.COM 1 doff Personal Protective Equipment (See the Barnes Declaration, ¶ 4); Declaration of Defendant 2 Representative Kevin Follansbee (Exhibit 4 to the Barnes Declaration and Exhibits B and C). 3 This is sufficient to satisfy numerosity requirements. As a general matter, courts have found that 4 numerosity is satisf