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Alejandro P. Gutierrez, SBN 107688
Iagutierrez@hathawaylawfirm. com FILEDZINDORSED
HATHAWAY, PERRETT, WEBSTER, POWERS,
2 CHRISMAN & GUTIERREZ, APC
5450 Telegraph Road, Suite 200 NOV 1 2 2021
3 Venttu-a, CA 93006-3577
Telephone: (805) 644-7111
4 Facsimile: (805) 644-8296 Bv K. Madden. Deoutv Clerk
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 Venttu-a, Cafifomia 93001
Tel: (805) 628-8220
9 Fax:(805) 765-8600
10 Attomeys for Plaintiff JOHN BOUDREA U
and the Certified Class
11
12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
14 FOR THE COUNTY OF SACRAMENTO (UNLIMITED)
15 JOHN BOUDREAU, an individual, on behalfof Case No. 34-2018-00247272
16 himself and all others similarly situated,
17 Plaintiffs,
DECLARATION OF ALEJANDRO P.
vs. GUTIERREZ IN SUPPORT OF MOTION
18 FOR ATTORNEYS' FEES AND COSTS
PRIMERITUS FINANCIAL SERVICES, INC.,
19 a Delaware Corporation; CHRIS {Filed concurrently with Motion for Final
Approval of Class Action Settlement}
20 MCGUINNESS, an individual; and DOES I
through 10, inclusive.
21
Defendants.
22 Final Fairness Hearing:
Date: December 3, 2021
23 Time: 9:30 a.m.
24 Dept: 41
25
26
27
28
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DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS
I 1, ALEJANDRO P. GUTIERREZ, declare and state as follows:
2 1. I am an attorney at law duly licensed to practice law before all the courts in the State of
3 Califomia. I am a partner with the law firm of Hathaway, Perrett, Webster, Powers, Chrisman &
4 Gutierrez, APC, who, along with co-counsel Daniel J. Palay and Brian Hefelfmger of the fum Palay
5 Hefelfmger APC, are the attomeys of record for named Plaintiff John Boudreau and the Certified Class.
6 2. 1 am the primary attomey in my firm responsible for the handling of this matter, and 1
7 make this Declaration based upon my own personal knowledge.
8 3. I am experienced and knowledgeable in wage and hour litigation and class action
9 litigation, as it is my primary practice area, as well as the primary practice area of the Palay Hefelfmger
10 firm. If called as a wimess I would and could competentiy testify to the facts stated herein. I make this
11 declaration in support of Plaintiff s Motion for Attomeys' Fees and Costs in this matter.
12 4. I incorporate by this reference my statements made in the concurrently filed Declaration
13 I have provided to support Final Approval in this matter. That Declaration sets forth the operative
14 claims and litigation history in this matter.
15 5. The negotiated settlement (the "Settlement") in this matter is a resounding victory for
16 the class members, and has been met with overwhelming support and enthusiasm from those
17 individuals that class counsel has spoken with. The Settlement will result in a substantial benefit to all
18 Class Members. The total settlement amount is in excess of eighty-one percent (81%) of the total
19 potential recovery. After deducting the to-be-requested amounts for attomey's fees, settlement
20 administrator fees, and actual costs for Class Counsel, the Service Payment to the Class Representative,
21 and the PAGA payment (including the State of Califomia's portion), the net settlement amount to be
22 divided among the class will be approximately $2,401,300.00, with the average settling Class Member
23 receiving approximately $14,553.33, with $55,965.40 the highest settlement share to be paid to a Class
24 Member.
25 6. When assessing the class counsel firms' entitlement to an award of fees, and the amount,
26 it should first be noted that Mr. Boudreau hired Class Counsel on a contingency basis, and Class
27 Counsel agreed to advance all costs and receive no fee unless a recovery was accomplished. While
28 litigating this case. Class Counsel had to forego other work and faced fmancial risk in this action.
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DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS
1 7. Ln addition, Class Counsel - the Hathaway firm and my co-counsel with Palay
2 Hefelfinger APC - are all experienced lawyers with substantial complex litigation experience. We
3 each have extensive experience in successful prosecution of numerous class actions. We have
4 recovered more than one hundred fifty million dollars on behalf of thousands of individuals in
5 Califomia, and have successfully handled numerous significant wage-and-hour class and representative
6 actions. Class Counsel committed significant firm resources to the prosecution of this action. As
7 noted. Class Counsel were retained based upon a contingency fee arrangement, wherein we agreed to
8 advance all costs and receive no fee, unless and until a recovery was accomplished.
9 8. Counsel for Defendant are also experienced lawyers with substantial complex litigation
10 experience, and are part of a major, intemational law firm, Littler Mendelson, which advertises itself as
11 "the largest global employment and labor law practice . . . with more than 1,500 attomeys in 80
12 offices." {See, e.g., https://www.littler.com/es/node/500022). Counsel for Defendant have extensive
13 experience in defending wage-and-hour class actions.
14 9. At all times, the Parties' settlement negotiations have been non-collusive, adversarial,
15 and,conducted at arms-length.
16 10. In terms of my qualifications and background, I graduated from the University of
17 Califomia at Davis Law School and was admitted to the Califomia Bar in 1983. I have extensive
18 experience in civil litigation and an over 35-year history of aggressive, successfiil prosecution of labor
19 law cases. For instance, in a wage and hour class action, in binding arbifration, I succeeded in
20 procuring an award of $51.2 million for the class. This recovery represented close to 100% of the
21 compensatory damages suffered by class members, an exceptional and rare result. In fact, my efforts
22 resulted in what I believe to be the largest per-person award in Califomia history. Further, I have
23 successfiilly resolved several class and PAGA representative actions before trial in favor of the class,
24 including Avitia v. Big Lots Stores, Los Angeles County Superior Court Case No. BC436317; McNeal
25 V. Pacific Satellite, Los Angeles County Superior Court Case No. BC382775; Beltran v. Restaurant
26 Miramar, Venttira Co. Superior Court Case No. 56-2009-00362572-CU-BC-VTA; Dockstader v.
27 Employee Leasing, Inc., Venttira Co. Superior Court Case No. 56-2010-00371075-CU-OE-VTA; Britto
28 V. Zep, Alameda County Superior Court Case No. VG-10553718; Rizk v. DirectSat, Los Angeles
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DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS
I County Superior Court Case No. BC363435; Bankwitz v. Ecolab, USDC Case No. 2:17-cv-02924-
2 EMC; Miner v. Ecolab, USDC Case No. 2:17-cv-02313-FMO-JC. I have also defended class action
3 cases with favorable results, including successfully stemming a certification of class in a potentially
4 multi-million dollar action in Santa Barbara. (Villasenor v. Jimenez Nursery, Santa Barbara Superior
5 Court Case No. 1131798).
6 11. In addition, I was lead or co-counsel in the following wage and hour class actions: Ross
7 V. Ecolab, Northem District of Califomia case number l3-cv-5097-PJH; Rose v. Sodexo, U.S. Disfrict
8 Court No. CV08-05687-RGK (AGRx); Cooper v. Ecolab, Los Angeles County Superior Court Case
9 No. BC486875; Roe v. Ecolab, Venttira Co. Superior Court Case No. CFV 233936; Dietz v. Ecolab,
10 Ventura Co. Superior Court Case No. CFV 241827; Campos v. Ecolab, Northem District of Califomia
11 case number 4:16-cv-04829-PJH; Martino v. Ecolab, Northem District of Califomia case number 5:14-
12 CV-04358-PSG; Ladore v. Ecolab, Cenfral District of Califomia case number 2:1 l-cv-09386, all of
13 which resolved in favor of the plaintiffs. I have been lead counsel or co-counsel in class actions that
14 have resulted in damage recoveries of over $130 million. I have also been one of the rare attomeys to
15 take a class action to completion, litigating an overtime action against Ecolab on behalf of its pest
16 confrol service specialists through an arbitration that Ecolab even challenged on appeal. I prevailed on
17 that appeal as well, which upheld an arbifration award of over $50 million. {Roe v. Ecolab, Inc. (Cal.
18 Ct. App., Aug. 19, 2009, No. B210262) 2009 WL 2517569.)
19 12. I have also handled numerous matters involving Labor Commissioner cases,
20 approximately half of which were on behalfof the employee. Further, I have been counsel on over 300
21 wage and hour arbifrations.
22 13. Further, I have been designated as a top-rated Super Lawyer for years 2019 to 2021.
23 14. In this matter, my hourly rate (for lodestar purposes; our client retained us under a written
24 contingent fee arrangement) is $850 per hour. This rate is reasonable for several reasons. First, based on my
25 experience and familiarity with the employment law marketplace in Califomia, $850 per hour is a
26 reasonable hourly billing rate for any attomey of my experience and credentials. I have also reviewed the
27 most cmrent, updated version ofthe Laffey Matrix conceming attomey billing rates, and the Matrix suggests
28 that an attomey with 20-plus years of experience should be billing at the rate of at least $919 per hour. See
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DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS
1 Hefelfmger Decl, Ex. A.
2 15. In addition, under previous fee awards and rate determinations I have received, I was
3 approved at the rate of $850 per hour in 2020 and 2021. I can provide exemplar awards and mlings
4 containingtiieserecent rate approvals, upon request. Finally, attomeys of comparable experience in similar
5 cases in Califomia have been awarded the same rate as my requested rate herein, of $850 per hour. See ,
6 e.g., Polee v. Cent. Conti-a Costa Transit Auth., No. 18-CV-05405-SI, 2021 WL 308608, at *4 (N.D. Cal.
7 Jan. 29, 2021) (approving rate of $850 per hour in employment case for attomey with 30+years of practice).
8 Accordingly, my rate at $850 an hour is consistent with my most recent rate determinations, the legal
9 marketplace, and the case law.
10 16. My co-counsel in this matter, the Palay Hefelfinger APC firm (including counsel Daniel
11 J. Palay's former firms of McTague & Palay, and The Palay Law Firm) also has extensive experience
12 in successful prosecution of wage class action matters. Palay Hefelfinger, APC has a sfrong emphasis
13 in employee-related litigation on a class-wide basis. The Firm has resolved several certified class
14 action matters and continues to represent individuals in presently-certified class actions and pending
15 certification matters. All of these class action cases have involved employee-related wage claims,
16 including those similar if not identical to the causes of action as presented in this subject matter.
17 17. Mr. Daniel J. Palay is the founder of Palay Hefelfinger APC. Mr. Palay has personally
18 handled well over fifty wage-and-hour class actions. Numerous courts throughout the state have
19 appointed him class counsel, including the following cases: Kem County Superior Court cases Calvillo
20 V. Diamond Well Service, S-1500-CV 259751; Candete v. Cummings Transportation Service, S-1500-
21 CV 264301; Carter v. B&L Tongs, LLC, S-1500-CV-258154 SPC; and Gutierrez v. Halliburton Energy
22 Services, Inc., S-1500-CV-257557 SPC; Los Angeles County Superior Court case Henson v. Searles
23 Valley Minerals Operations, Inc., BC404330; San Francisco Superior Court case Icard v. Ecolab, Inc.,
24 CGC-09-495344; Solano County Superior Court case Kenton v. PGD, FCS 029221; and Venttira
25 County Superior Court cases Bautista v. Alliance Environmental Group, 56-2009-00357772-CU-OE-
26 VTA; Barragan v. Republic Drilling Co., 56-2007-00286959-CU-OE-VTA; Cortez v. Pool California
27 Energy Services, Inc., CIV 222363; Gonzalez v. Key Energy Services, Inc., CFV 236497; Hemosillo v.
28 Kenai Drilling, Ltd., CIV 237210; Hiriarte v. Weatherford U.S., LP., CIV 247425; Howe v. BTC
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DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS
1 Laboratories, Inc., CIV 233988; Roe v. Ecolab, Inc., CFV 233936; and Vasquez v. DCH (Oxnard) Inc.,
2 CFV 243055. Mr. Palay is responsible for securing some of the largest, known per-claimant class
3 action settlements in Califomia history.
4 18. Mr. Brian Hefelfinger has also handled numerous wage-and-hour class action matters
5 and continues to litigate presently certified class actions and pending certification matters. All of these
6 class action cases have involved employee-related wage claims, including those similar to the causes of
7 action as presented in this matter. Examples of matters in which he has represented class members
8 include: Alameda County Superior Court case Britto v. Zep, VB-10553718; San Francisco Superior
9 Court case Icard v. Ecolab, Inc., CGC-09-495344 (removed as N.D. Case No. 13-cv-05097-PJH);
10 Cenfral District of Califomia cases Pagel v. Dairy Farmers of America, Inc., CD. Cal. Case No. 13-cv-
11 02382-CVW-VBK; Ladore v. Ecolab, Inc., Case No. 2:1 l-cv-09386 (FMO); Berry et al. v. DCOR,
12 LLC, CD. Cal. Case No. 2:15-CV-02792-RGKAJW; Kem County case, Zavala v. Resource Staffing,
13 Inc. et al., Kem County Case No. S-1500-CV0278358 LHB; Wawryk v. Zoom Media Corp., Los
14 Angeles Superior Case No. BC561047; Ventura County Superior Court case Perez v. TruGreen, et al..
15 Case No. 56-2015-00471673-CU-OE-VTA; and Ross et al. v. Ecolab, N.D. Cal. Case No. C 13-5097
16 PJH; among other cases.
17 19. I also utilized two of my firm's associates, Mr. Brett McMurdo and Mr. Seth Shapiro,
18 where appropriate for tasks that could be delegated in this matter. Mr. McMurdo is an attomey in his
19 eighth year of litigation practice, and my firm at the time regularly billed him out at $400.00 per hour.
20 20. Mr. Shapiro is a fourteen year attomey and a partner with my firm. Mr. Shapiro's
21 practice includes civil litigation and employment law work. Based on Mr. Shapiro's experience and
22 credentials, my firm has billed him at $550.00 per hour in this matter.
23 21. Coleen DeLeon is a civil litigation paralegal in my firm, with 25-plus years of
24 experience and high-level-attomey legal research and writing skills. In this matter, Ms. DeLeon's
25 lodestar rate is $225 per hour, which is consistent with her most recent rate determinations from 2020
26 and 2021.
27 22. Plaintiffs retained my firm, Dan Palay and Brian Hefelfinger of Palay Hefelfinger, APC,
28 to represent them in their case against Primeritus. I have co-counseled with these attomeys in many
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DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS
1 cases over the years. We have a good working relationship and have leamed how to delegate work
2 between us so as to avoid duplication of efforts. 1 often act as the lead in most matters, which is
3 important because it ensures that no tasks slip through the cracks.
4 23. My firm maintains records of the hours we spend working on our cases. I made a
5 general examination of all of the billings regarding this litigation on account of legal services fumished.
6 These records were made in the regular course of the Hathaway law firm's business. The billers from
7 my firm are Coleen de Leon, a paralegal with 25-plus years of experience and high-level-attomey legal
8 research and writing skills, and myself.
9 24. In providing this declaration, I have attempted to review all of the work the legal
10 professionals in my firm each performed in this case including all emails, pleadings, drafts,
11 spreadsheets, correspondence, my own billing entries, physical and electronic files in the matter, and
12 the billing records of my co-counsel. I eliminated duplicate entries or any I felt were inefficient or
13 would not otherwise be paid by an hourly-paying client.
14 25. The concurrentiy filed Declaration of Brian D. Hefelfinger sets forth the number of
15 hours the members of my firm, and of my co-counsel firm Palay Hefelfmger APC, recorded in this case
16 through the current time. Excluded from Mr. Hefelfinger's summary, however, is time that will be
17 spent related to the final approval hearing as well as adminisfrative tasks that will continue to occur in
18 the months following final approval. For example, it is common in class action settlements that the
19 class counsel firms must continue to field calls and questions from settlement class members for many
20 months following approval, relating to things such as disbursement, address changes, where to seek tax
21 advice, and the effect ofthe release.
22 26. I provided the information used by Mr. Hefelfinger in his declaration for his calculations
23 relative to the hours and fees incmred in this matter. I reviewed the hours recorded by my firm and
24 made edits and/or deletions where appropriate {i.e., if duplicative attomey time on the same task was
25 found) in the exercise of billing discretion, in order to ensure that all ofthe time from my firm reflected
26 in the Hefelfinger Declaration was reasonably and necessarily incurred in this matter.
27 27. The most recent court-approved rates for Ms. DeLeon, and myself, are $225 and $850
28 per hour, respectively. These are the rates at which we bill clients for class action work performed in
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DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS
I Califomia major mefropolitan areas, such as in Los Angeles, San Diego, or the Bay Area(s). My most
2 recent wage/hour class action settlement approval, and the rate determination therein, was granted in
3 June of this year, and approved of these hourly rates. {See, e.g., Bankwitz v. Ecolab Inc., N.D. Cal.
4 Case No. 3:l7-cv-02924-EMC (fmal appr. Granted June 24, 2021).
5 28. More than seven years ago, the Northem Disfrict of Califomia court found my
6 reasonable houriy rate to be $700 per hour. See Aguilar v. Zep Inc., No. 13-CV-00563-WHO, 2014 WL
7 4063144, at *4 (N.D. Cal., Aug. 15, 2014). The Aguilar matter was another wage-and-hour case
8 brought under Califomia law. The Court awarded fees in coimection with a contested motion for fees.
9 In the intervening seven years since the Aguilar fee award, my rate has increased by $150.
10 29. I delegated work whenever possible in this matter to Ms. De Leon at my firm, and other
11 associates/partners with lower billing rates. The billing records reflect this fact.
12 30. In my employment practice, I represent employees the majority of the time in litigation
13 matters. I almost always represent employees on a contingent-fee basis, and we typically advance
14 litigation costs, since our individual clients cannot typically afford to fimd litigation. Sometimes I am
15 able to recover money for my clients, but sometimes I am not.
16 31. When that happens, I and my firm suffer a loss. For example, I co-counseled an
17 employment case with Mr. Palay a number of years ago. I believed the case was sfrong, but the case did
18 not resolve and we ended up trying the case before a jury in Ventura County. The jury found for the
19 employer. Our firms had advanced thousands in costs and incurred hundreds of hours in attomey time
20 through the trial. Because we represented the client on a contingent-fee basis, we received zero fees and
21 our client could not afford to pay our costs. This is the risk of representing a plaintiff on a contingent-
22 fee basis.
23 32. The benefit of representing an employee on a contingent-fee basis is that it permits
24 clients to obtain qualified attomeys without having to pay hourly fees. In tum, this provides critical
25 access to the courts for people who otherwise would be unable to fmd competent counsel to represent
26 them. It also vindicates important public policy aims that the wage and hour statutes are intended to
27 protect, where the economic situation of meritorious plaintiffs might otherwise not permit.
28 33. My personal involvement in this case, including my evaluation ofboth the law and the
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DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS
1 evidence, leads to the conclusion that we have achieved a significant victory for the Class.
2 34. I have reviewed the expense file and receipts for litigation costs in this matter. Over the
3 approximately three years of litigation, my firm advanced $17,661.80 in costs in the matter. These
4 include: service of process costs, CourtCall fees, FedEx costs, court reporter fees, court filing fees,
5 deposition costs, legal courier fees, mediation fees incurred in connection with two private mediation
6 sessions, and transcript fees. If the Court desires to review the detailed itemization or receipts for these
7 cost items, I could and would provide the same upon request.
8 35. My firm and I took on financial risk by advancing and paying these costs, totaling
9 $17,661.80, while the action has been pending. Separately, my co-counsel at Palay Hefelfmger APC
10 also advanced costs to prosecute this matter. There was never any guarantee of recovery of these costs.
ll Accordingly, I respectfully request that the Court reimburse these litigation costs from the common
12 fund obtained under the Settlement.
13 36. This matter includes a Labor Code Private Attomeys' General Act ("PAGA") cause of
14 action which is being resolved by the Settlement. After the parties entered into the Settlement, I caused
15 to be filed a copy of the Settlement with the LWDA, using its web portal, as required under the Labor
16 Code at § 2699 et seq. I have not received any objection or response from the LWDA, in regards to
.17 the Settlement or at any point in this litigation. I have not received a response from any other
18 governmental entity regarding this Settlement,
19 37. The Settlement does not include any injunctive relief The Settlement herein is also non-
20 reversionary.
21
22 I declare under penalty of perjury and under the laws of State of Califomia that the foregoing is
23 tme and cortect. Executed this 10* day of November, 2021, at Ventura, Califomia.
24
25
26 Alejandro
27
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DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS
Preview
Alejandro P. Gutierrez, SBN 107688 Iagutierrez@hathawaylawfirm. com FILEDZINDORSED HATHAWAY, PERRETT, WEBSTER, POWERS, 2 CHRISMAN & GUTIERREZ, APC 5450 Telegraph Road, Suite 200 NOV 1 2 2021 3 Venttu-a, CA 93006-3577 Telephone: (805) 644-7111 4 Facsimile: (805) 644-8296 Bv K. Madden. Deoutv Clerk 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 Venttu-a, Cafifomia 93001 Tel: (805) 628-8220 9 Fax:(805) 765-8600 10 Attomeys for Plaintiff JOHN BOUDREA U and the Certified Class 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 14 FOR THE COUNTY OF SACRAMENTO (UNLIMITED) 15 JOHN BOUDREAU, an individual, on behalfof Case No. 34-2018-00247272 16 himself and all others similarly situated, 17 Plaintiffs, DECLARATION OF ALEJANDRO P. vs. GUTIERREZ IN SUPPORT OF MOTION 18 FOR ATTORNEYS' FEES AND COSTS PRIMERITUS FINANCIAL SERVICES, INC., 19 a Delaware Corporation; CHRIS {Filed concurrently with Motion for Final Approval of Class Action Settlement} 20 MCGUINNESS, an individual; and DOES I through 10, inclusive. 21 Defendants. 22 Final Fairness Hearing: Date: December 3, 2021 23 Time: 9:30 a.m. 24 Dept: 41 25 26 27 28 -1- DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS I 1, ALEJANDRO P. GUTIERREZ, declare and state as follows: 2 1. I am an attorney at law duly licensed to practice law before all the courts in the State of 3 Califomia. I am a partner with the law firm of Hathaway, Perrett, Webster, Powers, Chrisman & 4 Gutierrez, APC, who, along with co-counsel Daniel J. Palay and Brian Hefelfmger of the fum Palay 5 Hefelfmger APC, are the attomeys of record for named Plaintiff John Boudreau and the Certified Class. 6 2. 1 am the primary attomey in my firm responsible for the handling of this matter, and 1 7 make this Declaration based upon my own personal knowledge. 8 3. I am experienced and knowledgeable in wage and hour litigation and class action 9 litigation, as it is my primary practice area, as well as the primary practice area of the Palay Hefelfmger 10 firm. If called as a wimess I would and could competentiy testify to the facts stated herein. I make this 11 declaration in support of Plaintiff s Motion for Attomeys' Fees and Costs in this matter. 12 4. I incorporate by this reference my statements made in the concurrently filed Declaration 13 I have provided to support Final Approval in this matter. That Declaration sets forth the operative 14 claims and litigation history in this matter. 15 5. The negotiated settlement (the "Settlement") in this matter is a resounding victory for 16 the class members, and has been met with overwhelming support and enthusiasm from those 17 individuals that class counsel has spoken with. The Settlement will result in a substantial benefit to all 18 Class Members. The total settlement amount is in excess of eighty-one percent (81%) of the total 19 potential recovery. After deducting the to-be-requested amounts for attomey's fees, settlement 20 administrator fees, and actual costs for Class Counsel, the Service Payment to the Class Representative, 21 and the PAGA payment (including the State of Califomia's portion), the net settlement amount to be 22 divided among the class will be approximately $2,401,300.00, with the average settling Class Member 23 receiving approximately $14,553.33, with $55,965.40 the highest settlement share to be paid to a Class 24 Member. 25 6. When assessing the class counsel firms' entitlement to an award of fees, and the amount, 26 it should first be noted that Mr. Boudreau hired Class Counsel on a contingency basis, and Class 27 Counsel agreed to advance all costs and receive no fee unless a recovery was accomplished. While 28 litigating this case. Class Counsel had to forego other work and faced fmancial risk in this action. -2- DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS 1 7. Ln addition, Class Counsel - the Hathaway firm and my co-counsel with Palay 2 Hefelfinger APC - are all experienced lawyers with substantial complex litigation experience. We 3 each have extensive experience in successful prosecution of numerous class actions. We have 4 recovered more than one hundred fifty million dollars on behalf of thousands of individuals in 5 Califomia, and have successfully handled numerous significant wage-and-hour class and representative 6 actions. Class Counsel committed significant firm resources to the prosecution of this action. As 7 noted. Class Counsel were retained based upon a contingency fee arrangement, wherein we agreed to 8 advance all costs and receive no fee, unless and until a recovery was accomplished. 9 8. Counsel for Defendant are also experienced lawyers with substantial complex litigation 10 experience, and are part of a major, intemational law firm, Littler Mendelson, which advertises itself as 11 "the largest global employment and labor law practice . . . with more than 1,500 attomeys in 80 12 offices." {See, e.g., https://www.littler.com/es/node/500022). Counsel for Defendant have extensive 13 experience in defending wage-and-hour class actions. 14 9. At all times, the Parties' settlement negotiations have been non-collusive, adversarial, 15 and,conducted at arms-length. 16 10. In terms of my qualifications and background, I graduated from the University of 17 Califomia at Davis Law School and was admitted to the Califomia Bar in 1983. I have extensive 18 experience in civil litigation and an over 35-year history of aggressive, successfiil prosecution of labor 19 law cases. For instance, in a wage and hour class action, in binding arbifration, I succeeded in 20 procuring an award of $51.2 million for the class. This recovery represented close to 100% of the 21 compensatory damages suffered by class members, an exceptional and rare result. In fact, my efforts 22 resulted in what I believe to be the largest per-person award in Califomia history. Further, I have 23 successfiilly resolved several class and PAGA representative actions before trial in favor of the class, 24 including Avitia v. Big Lots Stores, Los Angeles County Superior Court Case No. BC436317; McNeal 25 V. Pacific Satellite, Los Angeles County Superior Court Case No. BC382775; Beltran v. Restaurant 26 Miramar, Venttira Co. Superior Court Case No. 56-2009-00362572-CU-BC-VTA; Dockstader v. 27 Employee Leasing, Inc., Venttira Co. Superior Court Case No. 56-2010-00371075-CU-OE-VTA; Britto 28 V. Zep, Alameda County Superior Court Case No. VG-10553718; Rizk v. DirectSat, Los Angeles -3- DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS I County Superior Court Case No. BC363435; Bankwitz v. Ecolab, USDC Case No. 2:17-cv-02924- 2 EMC; Miner v. Ecolab, USDC Case No. 2:17-cv-02313-FMO-JC. I have also defended class action 3 cases with favorable results, including successfully stemming a certification of class in a potentially 4 multi-million dollar action in Santa Barbara. (Villasenor v. Jimenez Nursery, Santa Barbara Superior 5 Court Case No. 1131798). 6 11. In addition, I was lead or co-counsel in the following wage and hour class actions: Ross 7 V. Ecolab, Northem District of Califomia case number l3-cv-5097-PJH; Rose v. Sodexo, U.S. Disfrict 8 Court No. CV08-05687-RGK (AGRx); Cooper v. Ecolab, Los Angeles County Superior Court Case 9 No. BC486875; Roe v. Ecolab, Venttira Co. Superior Court Case No. CFV 233936; Dietz v. Ecolab, 10 Ventura Co. Superior Court Case No. CFV 241827; Campos v. Ecolab, Northem District of Califomia 11 case number 4:16-cv-04829-PJH; Martino v. Ecolab, Northem District of Califomia case number 5:14- 12 CV-04358-PSG; Ladore v. Ecolab, Cenfral District of Califomia case number 2:1 l-cv-09386, all of 13 which resolved in favor of the plaintiffs. I have been lead counsel or co-counsel in class actions that 14 have resulted in damage recoveries of over $130 million. I have also been one of the rare attomeys to 15 take a class action to completion, litigating an overtime action against Ecolab on behalf of its pest 16 confrol service specialists through an arbitration that Ecolab even challenged on appeal. I prevailed on 17 that appeal as well, which upheld an arbifration award of over $50 million. {Roe v. Ecolab, Inc. (Cal. 18 Ct. App., Aug. 19, 2009, No. B210262) 2009 WL 2517569.) 19 12. I have also handled numerous matters involving Labor Commissioner cases, 20 approximately half of which were on behalfof the employee. Further, I have been counsel on over 300 21 wage and hour arbifrations. 22 13. Further, I have been designated as a top-rated Super Lawyer for years 2019 to 2021. 23 14. In this matter, my hourly rate (for lodestar purposes; our client retained us under a written 24 contingent fee arrangement) is $850 per hour. This rate is reasonable for several reasons. First, based on my 25 experience and familiarity with the employment law marketplace in Califomia, $850 per hour is a 26 reasonable hourly billing rate for any attomey of my experience and credentials. I have also reviewed the 27 most cmrent, updated version ofthe Laffey Matrix conceming attomey billing rates, and the Matrix suggests 28 that an attomey with 20-plus years of experience should be billing at the rate of at least $919 per hour. See -4- DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS 1 Hefelfmger Decl, Ex. A. 2 15. In addition, under previous fee awards and rate determinations I have received, I was 3 approved at the rate of $850 per hour in 2020 and 2021. I can provide exemplar awards and mlings 4 containingtiieserecent rate approvals, upon request. Finally, attomeys of comparable experience in similar 5 cases in Califomia have been awarded the same rate as my requested rate herein, of $850 per hour. See , 6 e.g., Polee v. Cent. Conti-a Costa Transit Auth., No. 18-CV-05405-SI, 2021 WL 308608, at *4 (N.D. Cal. 7 Jan. 29, 2021) (approving rate of $850 per hour in employment case for attomey with 30+years of practice). 8 Accordingly, my rate at $850 an hour is consistent with my most recent rate determinations, the legal 9 marketplace, and the case law. 10 16. My co-counsel in this matter, the Palay Hefelfinger APC firm (including counsel Daniel 11 J. Palay's former firms of McTague & Palay, and The Palay Law Firm) also has extensive experience 12 in successful prosecution of wage class action matters. Palay Hefelfinger, APC has a sfrong emphasis 13 in employee-related litigation on a class-wide basis. The Firm has resolved several certified class 14 action matters and continues to represent individuals in presently-certified class actions and pending 15 certification matters. All of these class action cases have involved employee-related wage claims, 16 including those similar if not identical to the causes of action as presented in this subject matter. 17 17. Mr. Daniel J. Palay is the founder of Palay Hefelfinger APC. Mr. Palay has personally 18 handled well over fifty wage-and-hour class actions. Numerous courts throughout the state have 19 appointed him class counsel, including the following cases: Kem County Superior Court cases Calvillo 20 V. Diamond Well Service, S-1500-CV 259751; Candete v. Cummings Transportation Service, S-1500- 21 CV 264301; Carter v. B&L Tongs, LLC, S-1500-CV-258154 SPC; and Gutierrez v. Halliburton Energy 22 Services, Inc., S-1500-CV-257557 SPC; Los Angeles County Superior Court case Henson v. Searles 23 Valley Minerals Operations, Inc., BC404330; San Francisco Superior Court case Icard v. Ecolab, Inc., 24 CGC-09-495344; Solano County Superior Court case Kenton v. PGD, FCS 029221; and Venttira 25 County Superior Court cases Bautista v. Alliance Environmental Group, 56-2009-00357772-CU-OE- 26 VTA; Barragan v. Republic Drilling Co., 56-2007-00286959-CU-OE-VTA; Cortez v. Pool California 27 Energy Services, Inc., CIV 222363; Gonzalez v. Key Energy Services, Inc., CFV 236497; Hemosillo v. 28 Kenai Drilling, Ltd., CIV 237210; Hiriarte v. Weatherford U.S., LP., CIV 247425; Howe v. BTC -5- DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS 1 Laboratories, Inc., CIV 233988; Roe v. Ecolab, Inc., CFV 233936; and Vasquez v. DCH (Oxnard) Inc., 2 CFV 243055. Mr. Palay is responsible for securing some of the largest, known per-claimant class 3 action settlements in Califomia history. 4 18. Mr. Brian Hefelfinger has also handled numerous wage-and-hour class action matters 5 and continues to litigate presently certified class actions and pending certification matters. All of these 6 class action cases have involved employee-related wage claims, including those similar to the causes of 7 action as presented in this matter. Examples of matters in which he has represented class members 8 include: Alameda County Superior Court case Britto v. Zep, VB-10553718; San Francisco Superior 9 Court case Icard v. Ecolab, Inc., CGC-09-495344 (removed as N.D. Case No. 13-cv-05097-PJH); 10 Cenfral District of Califomia cases Pagel v. Dairy Farmers of America, Inc., CD. Cal. Case No. 13-cv- 11 02382-CVW-VBK; Ladore v. Ecolab, Inc., Case No. 2:1 l-cv-09386 (FMO); Berry et al. v. DCOR, 12 LLC, CD. Cal. Case No. 2:15-CV-02792-RGKAJW; Kem County case, Zavala v. Resource Staffing, 13 Inc. et al., Kem County Case No. S-1500-CV0278358 LHB; Wawryk v. Zoom Media Corp., Los 14 Angeles Superior Case No. BC561047; Ventura County Superior Court case Perez v. TruGreen, et al.. 15 Case No. 56-2015-00471673-CU-OE-VTA; and Ross et al. v. Ecolab, N.D. Cal. Case No. C 13-5097 16 PJH; among other cases. 17 19. I also utilized two of my firm's associates, Mr. Brett McMurdo and Mr. Seth Shapiro, 18 where appropriate for tasks that could be delegated in this matter. Mr. McMurdo is an attomey in his 19 eighth year of litigation practice, and my firm at the time regularly billed him out at $400.00 per hour. 20 20. Mr. Shapiro is a fourteen year attomey and a partner with my firm. Mr. Shapiro's 21 practice includes civil litigation and employment law work. Based on Mr. Shapiro's experience and 22 credentials, my firm has billed him at $550.00 per hour in this matter. 23 21. Coleen DeLeon is a civil litigation paralegal in my firm, with 25-plus years of 24 experience and high-level-attomey legal research and writing skills. In this matter, Ms. DeLeon's 25 lodestar rate is $225 per hour, which is consistent with her most recent rate determinations from 2020 26 and 2021. 27 22. Plaintiffs retained my firm, Dan Palay and Brian Hefelfinger of Palay Hefelfinger, APC, 28 to represent them in their case against Primeritus. I have co-counseled with these attomeys in many -6- DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS 1 cases over the years. We have a good working relationship and have leamed how to delegate work 2 between us so as to avoid duplication of efforts. 1 often act as the lead in most matters, which is 3 important because it ensures that no tasks slip through the cracks. 4 23. My firm maintains records of the hours we spend working on our cases. I made a 5 general examination of all of the billings regarding this litigation on account of legal services fumished. 6 These records were made in the regular course of the Hathaway law firm's business. The billers from 7 my firm are Coleen de Leon, a paralegal with 25-plus years of experience and high-level-attomey legal 8 research and writing skills, and myself. 9 24. In providing this declaration, I have attempted to review all of the work the legal 10 professionals in my firm each performed in this case including all emails, pleadings, drafts, 11 spreadsheets, correspondence, my own billing entries, physical and electronic files in the matter, and 12 the billing records of my co-counsel. I eliminated duplicate entries or any I felt were inefficient or 13 would not otherwise be paid by an hourly-paying client. 14 25. The concurrentiy filed Declaration of Brian D. Hefelfinger sets forth the number of 15 hours the members of my firm, and of my co-counsel firm Palay Hefelfmger APC, recorded in this case 16 through the current time. Excluded from Mr. Hefelfinger's summary, however, is time that will be 17 spent related to the final approval hearing as well as adminisfrative tasks that will continue to occur in 18 the months following final approval. For example, it is common in class action settlements that the 19 class counsel firms must continue to field calls and questions from settlement class members for many 20 months following approval, relating to things such as disbursement, address changes, where to seek tax 21 advice, and the effect ofthe release. 22 26. I provided the information used by Mr. Hefelfinger in his declaration for his calculations 23 relative to the hours and fees incmred in this matter. I reviewed the hours recorded by my firm and 24 made edits and/or deletions where appropriate {i.e., if duplicative attomey time on the same task was 25 found) in the exercise of billing discretion, in order to ensure that all ofthe time from my firm reflected 26 in the Hefelfinger Declaration was reasonably and necessarily incurred in this matter. 27 27. The most recent court-approved rates for Ms. DeLeon, and myself, are $225 and $850 28 per hour, respectively. These are the rates at which we bill clients for class action work performed in • -7- DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS I Califomia major mefropolitan areas, such as in Los Angeles, San Diego, or the Bay Area(s). My most 2 recent wage/hour class action settlement approval, and the rate determination therein, was granted in 3 June of this year, and approved of these hourly rates. {See, e.g., Bankwitz v. Ecolab Inc., N.D. Cal. 4 Case No. 3:l7-cv-02924-EMC (fmal appr. Granted June 24, 2021). 5 28. More than seven years ago, the Northem Disfrict of Califomia court found my 6 reasonable houriy rate to be $700 per hour. See Aguilar v. Zep Inc., No. 13-CV-00563-WHO, 2014 WL 7 4063144, at *4 (N.D. Cal., Aug. 15, 2014). The Aguilar matter was another wage-and-hour case 8 brought under Califomia law. The Court awarded fees in coimection with a contested motion for fees. 9 In the intervening seven years since the Aguilar fee award, my rate has increased by $150. 10 29. I delegated work whenever possible in this matter to Ms. De Leon at my firm, and other 11 associates/partners with lower billing rates. The billing records reflect this fact. 12 30. In my employment practice, I represent employees the majority of the time in litigation 13 matters. I almost always represent employees on a contingent-fee basis, and we typically advance 14 litigation costs, since our individual clients cannot typically afford to fimd litigation. Sometimes I am 15 able to recover money for my clients, but sometimes I am not. 16 31. When that happens, I and my firm suffer a loss. For example, I co-counseled an 17 employment case with Mr. Palay a number of years ago. I believed the case was sfrong, but the case did 18 not resolve and we ended up trying the case before a jury in Ventura County. The jury found for the 19 employer. Our firms had advanced thousands in costs and incurred hundreds of hours in attomey time 20 through the trial. Because we represented the client on a contingent-fee basis, we received zero fees and 21 our client could not afford to pay our costs. This is the risk of representing a plaintiff on a contingent- 22 fee basis. 23 32. The benefit of representing an employee on a contingent-fee basis is that it permits 24 clients to obtain qualified attomeys without having to pay hourly fees. In tum, this provides critical 25 access to the courts for people who otherwise would be unable to fmd competent counsel to represent 26 them. It also vindicates important public policy aims that the wage and hour statutes are intended to 27 protect, where the economic situation of meritorious plaintiffs might otherwise not permit. 28 33. My personal involvement in this case, including my evaluation ofboth the law and the -8- DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS 1 evidence, leads to the conclusion that we have achieved a significant victory for the Class. 2 34. I have reviewed the expense file and receipts for litigation costs in this matter. Over the 3 approximately three years of litigation, my firm advanced $17,661.80 in costs in the matter. These 4 include: service of process costs, CourtCall fees, FedEx costs, court reporter fees, court filing fees, 5 deposition costs, legal courier fees, mediation fees incurred in connection with two private mediation 6 sessions, and transcript fees. If the Court desires to review the detailed itemization or receipts for these 7 cost items, I could and would provide the same upon request. 8 35. My firm and I took on financial risk by advancing and paying these costs, totaling 9 $17,661.80, while the action has been pending. Separately, my co-counsel at Palay Hefelfmger APC 10 also advanced costs to prosecute this matter. There was never any guarantee of recovery of these costs. ll Accordingly, I respectfully request that the Court reimburse these litigation costs from the common 12 fund obtained under the Settlement. 13 36. This matter includes a Labor Code Private Attomeys' General Act ("PAGA") cause of 14 action which is being resolved by the Settlement. After the parties entered into the Settlement, I caused 15 to be filed a copy of the Settlement with the LWDA, using its web portal, as required under the Labor 16 Code at § 2699 et seq. I have not received any objection or response from the LWDA, in regards to .17 the Settlement or at any point in this litigation. I have not received a response from any other 18 governmental entity regarding this Settlement, 19 37. The Settlement does not include any injunctive relief The Settlement herein is also non- 20 reversionary. 21 22 I declare under penalty of perjury and under the laws of State of Califomia that the foregoing is 23 tme and cortect. Executed this 10* day of November, 2021, at Ventura, Califomia. 24 25 26 Alejandro 27 28 DECLARATION OF ALEJANDRO P. GUTIERREZ IN SUPPORT OF MOTION FOR APPROVAL OF FEES AND COSTS