Preview
1 Alan Harris (SBN 146079)
David Garrett (SBN 160274)
2 ELECTRONICALLY
HARRIS & RUBLE
655 North Central Avenue, 17th Floor F I L E D
3 Glendale, CA 91203 Superior Court of California,
County of San Francisco
Telephone: (323) 962-3777
4 Facsimile: (323) 962-3004 01/31/2020
E-mail: aharris@harrisandruble.com Clerk of the Court
BY: ANNA TORRES
5 dgarrett@harrisandruble.com Deputy Clerk
6 David Harris (SBN 215224)
NORTH BAY LAW GROUP
7 116 E. Blithedale Ave.. Ste. 2
Mill Valley, CA 94941
8 Telephone: (415) 388-8788
Facsimile: (415) 388-8770
9 dsh@northbaylawgroup.com
10 Attorneys for Plaintiffs
TANIKA TURLEY
11 SUSAN CARRITHERS
12
13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
COUNTY OF SAN FRANCISCO
15
16
17 TANIKA TURLEY and SUSAN Case No. CGC-15-544936
CARRITHERS, individually and on behalf of all
18 others similarly situated, [Hon. Anne-Christine Massullo, Dept. 304]
19 Plaintiff, DECLARATION OF STEPHEN MOSES
IN SUPPORT OF PLAINTIFFS’
20 v. MOTION FOR PRELIMINARY
APPROVAL OF CLASS ACTION
21 CHIPOTLE SERVICES, LLC; a Colorado SETTLEMENT
business entity, and DOES 1 through and
22 including DOE 100, Date: February 24, 2020
Time: 9:15 a.m.
23 Defendants. Dept: 304
Civic Center Courthouse
24 400 McAllister Street
San Francisco, CA 94102
25
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MOSES DECL. IN SUPP. OF PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT
DECLARATION OF STEPHEN MOSES
1
2 STEPHEN MOSES declares under penalty of perjury of the laws of the United States and the
3 State of California as follows:
4 1. I make this Declaration in support of the: Motion for Preliminary Approval of Class
5 Action Settlement with respect to proposed Wage Statement Settlement Class and Omnibus
6 Settlement Class encompassing the California employees who performed non-exempt, hourly
7 services for Defendant Chipotle Services, LLC (“Chipotle”). If sworn as a witness, I could
8 competently testify to each and every fact set forth herein from my own personal knowledge.
9 Witness Qualifications
10 2. I received a BS in Economics from Franklin & Marshall College and am a Cum
11 Laude graduate of Harvard Law School. I have served or served on various boards of not-for-
12 profit and for-profit organizations, including the UCLA Foundation, Franklin & Marshall College,
13 Pitzer College, Hebrew Union College, Brentwood School (of which I was Chairman), Leo Baeck
14 Temple (of which I was President), The Fraternity of Friends of the Music Center, and The Los
15 Angeles Ballet (of which I was President). In addition I served on several Presidential
16 Commissions. I was an officer of the Democratic National Committee and served in leadership
17 roles in the presidential campaigns of Al Gore, Mike Dukakis, Paul Tsongas and Walter Mondale.
18 I served as an international Election Supervisor, in Bosnia and Albania.
19 3. I have over 30 years of finance, mergers & acquisitions, as well as business and
20 real estate development experience. I was, for fifteen years, a member of the Board of Directors
21 of ICN Pharmaceuticals (NYSE) and Chairman of its Audit Committee. I was a Board Member
22 of SPI Pharmaceuticals (AMEX). I was Vice Chairman of MP Biomedicals, Inc. All three
23 companies were dedicated to promoting research in the life science and biotech industries. I was
24 founder and chairman of National Investment Development Corp. and of Brentwood Bank, in Los
25 Angeles. I was Chairman of the Board of Directors of AcuNetx.
26 4. I have been involved in the privatization and capitalization of businesses in the
27 emerging economies of the former Soviet Bloc. I was a member of the Board of The Central
28
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MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT
1 Asian-American Enterprise Fund, appointed by the President of the United States, and was Chair
2 of its Investment Committee.
3 5. I was active in the field of government housing programs and real estate
4 syndication and development for nearly 20 years, holding senior level positions at Boise Cascade
5 Corporation, City Construction Corporation and Transcontinental Realty Corporation. I was
6 named Housing Man of the Year in 1980 by the National Housing Conference. I was admitted as
7 a member of the State Bar of California in 1975. As of January 1, 2015, I have been on inactive
8 status.
9 6. A true and correct copy of my curriculum vitae is attached hereto as Exhibit 1.
10 From my business experience, as a CEO, Board Member of various companies and as a sole
11 proprietor I have had responsibility for analyzing employment issues. As part of my work, I
12 developed familiarity with various payroll systems. I am familiar with claims pursuant to
13 California Labor Code sections 203, 226, 226.7. As part of my continuing education, I regularly
14 review approved class action settlements in California, and recently served as an expert in a multi-
15 million dollar class action settlement in Sherman v. CLP Resources, Inc., Central District of
16 California Case No. Case No. CV 12-8080 GW (PLAx) consolidated with Case No. CV 12-8080
17 GW (PLAx).
18 Compensation
19 7. My hourly rate for Depositions or Trial is $325 per hour. My hourly rate for
20 preparation is $150 per hour.
21 Assignment
22 8. Upon request of Plaintiffs’ counsel, I have reviewed the proposed class settlement
23 in this case and have been asked to opine here with respect to whether the proposed settlement is
24 fair, reasonable and adequate, giving attention to the voucher option and whether it represents
25 meaningful value to the Class Members.
26 Interviews and Materials Reviewed
27 8. I have been actively working as an expert in this case, off and on since 2018, when
28 I was deposed by Chipotle. I submitted my expert report in support of Plaintiff’s Motion for Class
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MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT
1 Certification, which was granted for the 7,000 member Wage Statement Class.
2 9. In preparing my opinions for the Class Certification motion I reviewed the relevant
3 pleadings, declarations, deposition transcripts and orders in this case. I examined the Declarations
4 of Ms. Turley and Ms. Carrithers, and Plaintiff’s counsel, Alan Harris, along with the Declarations
5 of twenty-five other CS workers and some dozens of emails received by the administrator of the
6 Belaire Notice in this case, sent in January of 2018.
7 10. In preparing my opinions for this Motion for Preliminary Approval, I reviewed the
8 proposed settlement agreement, Declaration of Alan Harris, proposed Notice Package, and other
9 relevant motion-related filings. I examined the settlement of the related Porras, Le Sure and
10 Sanchez cases. I have also reviewed a number of law review articles and treatises on voucher
11 settlements, including “Viewing Class Settlements Through A New Lens” By Kahn Scolnick and
12 Sheldon Evans (2017, Law 360); “Coupon Settlements: Two Steps Forward, One Step Back” by
13 Anna St. John (Competitive Enterprise Institute, 2017) and Circuit Split Regarding the “Coupon
14 Settlement Provisions of the Class Action Fairness Act” by Bryan A. Coleman (American Bar
15 Association, 2015). I have reviewed a number of approved voucher and coupon cases as indicated
16 below.
17 12. I have visited Chipotle restaurants in California and also reviewed online websites
18 which provide pricing information for Chipotle products. For example, www.menuandmeals.com;
19 www.fastfoodmenuprices.com; www.realmenuprices.com; www.menus.com; and
20 www.chipotle.com display prices for food items available at Chipotle. I have attached true and
21 correct copies of sample menus for Chipotle from www.realmenuprice.com at Exhibit 4 and
22 www.menuwithprice.com at Exhibit 5. The prices are generally consistent with each other and
23 those found on the Chipotle website.
24 13. I reviewed online menu prices for Chipotle restaurants in San Francisco, San
25 Diego, Los Angeles, Palm Springs, Santa Barbara, Sacramento and Orange County. I have found
26 them to be consistent, with slight, non-material variances. For example, a chicken burrito in San
27 Francisco costs $6.50 while a chicken burrito at the Beverly Hills location costs $6.70. I have
28 attached a true and correct copy of the Chipotle menu prices for the Chipotle at 50 California
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MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT
1 Street in San Francisco at Exhibit 3. I have attached a true and correct print out of the Chipotle
2 menu prices for the Chipotle at 244 S. Beverly Drive in Beverly Hills at Exhibit 6.
3 Findings and Opinions
4 14. Wage Statement Settlement Class: With regard to reasonableness and fairness, I
5 note that class members do not have to submit claims forms or take any action to participate,
6 which reduces the burden on class members. If Class Members do nothing, they will receive a
7 coupon under the Settlement. The anticipated average settlement payment of $128 to the Wage
8 Statement Class members is a fair and reasonable result considering that the alleged violation
9 certified by the Court only involved penalties for 13 pay periods. For a low wage hourly worker
10 who worked 10 pay periods, the payment represents a recovery equal to 19% of the total potential
11 statutory penalties $950 ($50 for first period + ($100 per period * 9 pay periods), an excellent
12 result. However, the Court could hold “that [Chipotle] would not [be] subject to heightened
13 penalties for subsequent violations unless and until a court or commissioner notifies the employer
14 that it is in violation of the Labor Code.” See e.g. Amalgamated Transit Union Local 1309 v.
15 Laidlaw Transit Service, Inc., 2009 U.S. Dist. LEXIS 69842, 2009 WL 2448430, at *9 (S.D. Cal.
16 Aug.10, 2009); see also Trang v. Turbine Engine Components Technologies Corp., No. CV 12–
17 07658 DDP (RZx), 2012 WL 6618854 (C.D. Cal. Dec. 19, 2012) (“courts have held that
18 employers are not subject to heightened penalties for subsequent violations unless and until a court
19 or commissioner notifies the employer that it is in violation of the Labor Code”). In that case, the
20 total penalty would be $500 ($50 for first period * 10 pay periods), so the $128 recovery would
21 equal over 25% of the total potential statutory penalties, an excellent result.1
22 15. In summary, with regard to the Wage Statement Settlement Class, I believe that the
23 average settlement payment to the Wage Statement Class Members is fair and reasonable
24 considering that they need not submit a claim form to participate, and the payment represents a
25 substantial portion of their potential penalties.
26
1
27 See City of Detroit v. Grinnell Corp., 495 F.2d 448, 455 (2d Cir. 1974) (settlement amounted to
only “a fraction of the potential recovery”); Carrington v. Starbucks Corp., 30 Cal. App. 5th 504, 528
28 (2018) (awarding PAGA penalties of only 0.2% of the maximum).
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MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT
1 16. Voucher Settlement Class: With regard to reasonableness and fairness, I note that
2 class members do not have to submit claims forms or take any action to receive a Voucher, which
3 reduces the burden on class members. Further, the meal vouchers do not expire, they are fully
4 transferable, and they may be used in conjunction with other available vouchers, discounts or
5 rebates. This is further indicia of fairness. See Paul v Wine.Com, Inc., No. CGC - 13-534734,
6 2014 WL 7933997, at *1 (Cal. Super. Nov. 13, 2014) (evidence of what products can be
7 purchased with voucher aids court in determination of reasonableness). The coupons may be sold
8 or otherwise transferred freely, and do not expire or decrease in value. Unlike gift cards, which
9 have sometimes been criticized for their monthly “maintenance” charges, the Vouchers do not
10 decrease in value over time.2 The meal vouchers may be used in conjunction with other available
11 vouchers, discounts or rebates. The Vouchers do not require the use of any additional funds or
12 purchases to utilize them.
13 17. Chipotle operates a chain of restaurants that specialize in tacos and Mission-style
14 burritos, including over 400 in California and 2500 throughout the United States.3 Chipotle
15 restaurants can be found in 47 states and the District of Columbia.4 The prevalence of Chipotle
16 restaurants throughout California and the United States is yet another indicator of the real value
17 contained in the Vouchers. Even for Class Members who have moved to other states, the Voucher
18 can be used with relative ease. Or, the Voucher can be gifted or sold to a friend or family
19 member.
20 18. The voucher should not be considered a “coupon” because it does not require the
21
2
In 2009, Congress passed the Credit Card Accountability Responsibility and Disclosure (CARD)
22 Act, which set consumer protections for gift cards based on many state laws. The law provides
that gift cards cannot expire within five years from the date they were activated and generally
23 limits inactivity fee on gift cards except in certain circumstances, such as if there has been no
transaction for at least 12 months. The federal law creates a floor for regulation and leaves room
24 for state regulation on redeeming gift cards for cash and unclaimed property provisions. The
Credit Card Accountability Responsibility and Disclosure (CARD) Act of 2009, Public Law 111-
25 24. Cal. Civil Code §1749.5 allows a “dormancy fee,” however, unlike gift cards, the Vouchers
will have no expiration date or dormancy fee, a further indicator of real value.
26 3
“Chipotle Mexican Grill, Inc. (CMG)”. Yahoo Finance. Retrieved January 24, 2020.
4
27 See https://locations.chipotle.com/. See Exhibit 7 for a distribution of restaurants by state,
according to the Chipotle website. It appears that the only states without a Chipotle are Alaska,
28 Hawaii and South Dakota.
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MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT
1 holder to purchase any specific product at Chipotle or to spend any additional cash amount to buy
2 a meal at Chipotle.5 Even if considered a coupon, the voucher has real food purchasing value,
3 equivalent to cash.
4 19. I estimate that the $12 Voucher will buy at least one typical meal at Chipotle. The
5 purchase of a Burrito (Chicken) [$6.50] with Chips & Salsa [$1.95] plus a drink [$2.10] would
6 equal $10.55, with an average 8.5% sales tax6 ($0.90) would equal $11.90. This conclusion is
7 reinforced by the menu website, which states that “Chipotle menu prices typically costs from $6-
8 12 per person with large serving sizes and food prepared to order right in front of you.”7
9 20. Attached hereto as Exhibit 8 is an actual itemize receipt from the 301 N.
10 Larchmont location in Los Angeles for a Chicken Burrito, Small Soda (with refills) and Chips.
11 The total came out to $11.05 before tax, and $11.96 with tax. While the costs of the burrito was
12 slightly higher than the San Francisco store, the costs of the chips was lower, which roughly
13 equalized the costs. Another receipt is attached at Exhibit 9 for a Veggie Burrito and Chips. The
14 total cost was $9.61. If a $2.15 drink (with $0.17 tax) was added to the order, the total would be
15 $11.83.
16 21. Based on the prices and purchase information above, I am confident that a complete
17 meal can be purchased at Chipotle with the $12 Voucher, without additional cash outlay.
18 22. While this is not a federal case, I found it instructive to review the Order Granting
19 Final Approval of Class Action Settlement in the Northern District “voucher settlement” case
20 called Knapp v. Art.com, Inc., Case No. 3:16-cv-00768-WHO (2017) due to the arguably stricter
21 standard of approval of voucher settlements under Class Action Fairness Act, 28 U.S.C. § 1712
22 (“CAFA”).8 In Knapp, the court pointed out that it was highly-unlikely that a class member who
23 5
A coupon settlement is one in which the relief is a discount on another product or service offered
24 by the defendant in the lawsuit. The Class Action Fairness Act (CAFA, 28 U.S.C.A. § 1712);
14 A.L.R. Fed. 3d Art. 9 (Originally published in 2016).
25 6
San Francisco, San Diego have an 8.5% sales tax rate. https://www.cdtfa.ca.gov/taxes-and-
fees/rates.aspx. The “true” California state sales tax is 6%, with 1.25% statewide county tax, and
26 applicable local taxes. https://www.salestaxinstitute.com/resources/rates
7
27 https://fastfoodmenuprice.com/chipotle-menu-prices/. See Exhibit 2.
8
CAFA requires a court to conclude that the settlement is “fair, reasonable, and adequate for class
28 members.” 28 U.S.C. § 1712 (e).
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MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT
1 spend the exact amount of a voucher ($10 in that case), stating:
2 It is highly unlikely that class members will spend exactly $10 if and when they
3 redeem their vouchers. It is significantly more likely that they will either spend
4 more than $10, which raises other concerns because the vouchers will ultimately
5 benefit Art.com, or that they will spend less than $10 . . . Nonetheless, class
6 members who choose to use their voucher have the opportunity to realize a $10
7 value.
8 Knapp v. Art.com, Inc., 283 F. Supp. 3d 823, 832–33 (N.D. Cal. 2017). Here, it appears that a
9 $12 Voucher will closely approximate the cost of a full meal at Chipotle, meaning that Class
10 Members will not have to spend any additional funds to enjoy the approximate maximum benefit
11 of the Voucher.
12 23. In Knapp, the vouchers expired after 18 months, and only one could be used in a
13 single transaction, yet the court still found them to be fair and reasonable. Id. Here, in contrast,
14 the Vouchers have no expiration and can be combined and used without restriction, further
15 indicators of their real value. In summary, the settlement in Knapp was finally approved with
16 vouchers that had more restrictions than those proposed here. Therefore, this factor supports the
17 reasonableness of the proposed Voucher settlement.
18 24. The Voucher treats the class members equitably relative to each other. The Wage
19 Statement Class was a certified class, while the meal, rest breaks and other classes were not
20 certified. If an Omnibus Class feels as though they have individual claims they wish to pursue,
21 they can always opt out of the Settlement and pursue their claims in arbitration.9 In any event, the
22 mailing of the Class Notice to Class Members will apprise them of their rights and the opportunity
23 to pursue a claim individually if they so choose. This mailing of the Class Notice also provides
24 value to the Class Members, because it apprises the Class Members of their rights under the law,
25 and provides them with multiple attorneys to whom they may discuss their rights under the law.
26
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27 The arbitration agreement does not require the employee to pay any costs or expense of the
arbitration that the employee would not be required to pay if the matter had been heard in court.
28 Carrithers Declaration, Ex. 1.
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MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT
1 25. Comparing the relief granted here versus similar approved settlements is a further
2 indicator of reasonableness. In Allen v. Bedolla, 787 F.3d 1218, 1221 (9th Cir. 2015)(“Labor
3 Ready”), a settlement was approved by the Ninth Circuit where similar low-wage hourly workers
4 were compensated with payments of $10, and (unlike here) were required to submit claims.10 The
5 amount payable to individual Omnibus Class Members is comparable to the amount approved for
6 payment to Class Members in a recent Alameda County Case in which Harris & Ruble was also
7 class counsel. In Altamirano v. Safeway, Case No. RG17851392 (December 13, 2019), the court
8 granted approval to a 35,000 member claims-made settlement in which group of class members
9 with late paychecks would receive approximately $7.20 (if all claims were submitted). See also In
10 re Uber FCRA Litigation, Case No. 14-cv-05200-EMC (N.D. Cal., 2018), a class action FCRA
11 claims-made settlement which proceeded in front of Judge Chen in the Northern District of
12 California. The estimated liability for Defendant was between $100 million and one billion
13 dollars. Judge Chen approved a $7.5 million settlement for a class of 1,025,954 employees,
14 which equated to $7.31 per employee and included other clams such as PAGA penalties.11
15 Therefore, here, even if the Omnibus Class Members took the cash option, the proposed settlement
16 appears to be in the “ballpark” of reasonableness required by Kullar. Kullar v. Foot Locker Retail,
17 Inc., 168 Cal.App.4th 116, 128 (2008). In this case, of course, Class Members are incentivized to
18 take the Voucher in order to double the amount they would have if they took the Cash option.12
19 26. My research indicates that similar voucher settlements have been approved in the
20 San Francisco Superior Court. On May 2, 2014, the court granted final approval to a voucher
21 settlement in Markkudrna v. Propark Am. W., 2014 Cal. Super. LEXIS 21139 & 2015 Cal. Super.
22 LEXIS 21682 (Case No. CGC-10-498142) (“Propark”). Propark was a claims made settlement in
23
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In Labor Ready, certain class members qualified for $25 payments, but only if they submitted a
24 claim and had also used a cash disbursement machines. Allen v. Bedolla, 787 F.3d 1218, 1221
(9th Cir. 2015). Here, Class Members need not take any action to receive their share of the fund,
25 and they do not need to meet any specific requirements to receive their share.
11
26 A true and correct copy of the Order Granting Final Approval of Settlement is attached hereto as
Exhibit 10.
12
27 It is perfectly permissible for a settlement to lead to a “win-win” situation for defendants (who
may earn additional revenues) and for class members (who may save money on purchases they
28 already were likely to make). See Dunk, 48 Cal.App.4th at 1805 n.14.
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MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT
1 which class members received “Free Parking Vouchers” for use only at Propark’s parking lots.
2 The “Free Parking Vouchers . . . shall be transferrable, shall have no expiration date, and may be
3 used at any Propark parking lot or facility, including Propark airport facilities.” Id. As here, the
4 value of the Free Parking Vouchers was “two times the value of the monetary payment”. Id.13
5 Therefore, the Propark case appears to support the current proposed settlement as the Vouchers in
6 this case are also transferable, non-expiring and may be utilized at any Chipotle.
7 27. Superiority: The significant jurisdictional issues present in this case must be
8 considered when assessing the proposed Settlement’s reasonableness. Chipotle could force all of the
9 Omnibus Class Members to arbitrate their claims on an individual basis. And based on the class action
10 waivers in the arbitration agreements, it is unlikely anyone in the Class would be able to benefit from a
11 class action settlement through arbitration. Thus, a significant percentage of the entire Settlement
12 Class would be forced to arbitrate their claims on an individual basis, with the prospect of a relatively
13 small individual award. The superiority of the class settlement supports its reasonableness.
14 28. In summary, with regard to the Omnibus Settlement Class, I believe that the
15 payment to the Class Members is fair and reasonable considering that they need not submit a
16 claim form to participate. The Voucher represents real value to the Class Members, who otherwise
17 would have to arbitrate their individual claims with the prospect of a relatively small award.
18 29. Presence of a Mediator and Extensive Motion Practice: Only after significant
19 discovery, the use of a mediator, and intense motion practice over several years did the parties
20 enter into the Settlement. I understand that the case was mediated with experienced wage and
21 hour mediator Jeff Krivis of First Mediation14, after several years of extensive discovery15 and
22
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It appears the case was appealed and judgment affirmed in a noncitable case.
23
14
Krivis has over 30 years’ worth of experience as a mediator.
24 15
I understand that the investigation included formal written discovery, depositions, and exchange
of payroll data pursuant to mediation. When Plaintiffs believed that Defendant was not producing
25 the required documents and deponents, Plaintiffs filed Motion to Compel further discovery, which
resulted in the production of additional documents and witnesses. Chipotle provided over 25,000
26 pages in response to Plaintiffs’ RFP’s, including wage statements and punch data for hundreds of
class members. Prior to certification, Plaintiffs’ counsel interviewed over 50 class members, and
27 secured declarations from approximately 25 class members. Eight depositions were completed.
Chipotle deposed five class members, reviewing each individual’s entire payroll and employment
28 file prior to the depositions. Plaintiff took the depositions of Chipotle PMK (Person Most
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MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT
1 motion practice, including Motions to Compel (Discovery); a Motion for Class Certification; a
2 Motion to Decertify; and a Motion for Summary Judgment (withdrawn). These factors are useful
3 the Court to consider in deciding whether to grant approval. See Rodriguez v. W. Publ’g Corp.,
4 563 F.3d 948, 965 (9th Cir. 2009)(“We put a good deal of stock in the product of an arms-length,
5 non-collusive, negotiated resolution, and have never prescribed a particular formula by which that
6 outcome must be tested.”); In re Zynga Inc. Secs. Litig., 2015 WL 6471171, at *9 (N.D. Cal. Oct.
7 27, 2015) (holding that the parties’ use of mediator and fact that significant discovery had been
8 conducted “support the conclusion that the Plaintiff was appropriately informed in negotiating a
9 settlement”); Harris v. Vector Mktg. Corp., No. C-08-5198 EMC, 2011 WL 1627973, at *8 (N.D.
10 Cal. Apr. 29, 2011) (noting that the parties’ use of a mediator “suggests that the parties reached the
11 settlement in a procedurally sound manner and that it was not the result of collusion or bad faith
12 by the parties or counsel.”).
13 30. Experience of Counsel: The fact that the parties’ counsel worked on these cases at
14 length and have an understanding of their risks weighs in favor of finding the settlement
15 procedurally robust and the product of arm’s length negotiations. See In re Heritage Bond Litig.,
16 2005 WL 1594403, at *9 (C.D. Cal. Mar. 9, 1989) (“The recommendation of experienced counsel
17 carries significant weight in the court’s determination of the reasonableness of the settlement.”)
18 31. Conclusion: I believe that adversarial procedural history and involvement of a
19 mediator both indicate a non-collusive, negotiated resolution which will provide substantial
20 benefits to the individual Class Members. In conclusion, I believe that the proposed Settlement is
21 fair and reasonable and should be approved.
22 I have read the foregoing, and the facts set forth herein are true and correct of my own
23 personal knowledge. Executed this 22nd day of January, 2020, at Palm Springs, California, within
24 Riverside County.
25
26 Stephen Moses
27
Qualified), a Team Director with responsibility for some 54 California restaurants, as well a senior
28 California store manager. I was also deposed.
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MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT
1 PROOF OF SERVICE
2 I am an attorney for Plaintiff(s) herein, over the age of eighteen years, and not a party to the within
action. My business address is 655 N. Central Ave., 17th Floor, Glendale, CA 91203. On January
3 25, 2020, I served the within document(s):
4 DECLARATION OF STEPHEN MOSES IN SUPPORT OF PLAINTIFF’S MOTION FOR
APPROVAL OF CLASS ACTION SETTLEMENT
5
I caused such to be delivered by e-mail to:
6
angela.agrusa@us.dlapiper.com
7 levi.heath@us.dlapiper.com
Steve.hernandez@dlapiper.com
8
I am readily familiar with the Firm’s practice of collection and processing correspondence for
9 mailing. Under that practice, the document(s) would be deposited with the U.S. Postal Service on
that same day with postage thereon fully prepaid in the ordinary course of business, addressed as
10 follows:
11 Angela C. Agrusa
Levi W. Heath
12 Steve L. Hernández
DLA PIPER LLP (US)
13 2000 Avenue of the Stars
Suite 400 North Tower
14 Los Angeles, California 90067-4704
15 MESSNER REEVES LLP
Charles C. Cavanagh
16 1430 Wynkoop Street, Suite 300
Denver, Colorado 80202
17
I declare under penalty of perjury that the above is true and correct. Executed on January 25,
18 2020, at Los Angeles, California.
19
20 ______________________
21 David Garrett
22
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27
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MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT
Exhibit 1
STEPHEN MOSES INTERESTS
BACKGROUND AND QUALIFICATIONS
Mr. Moses has over 30 years of finance, mergers & acquisitions, as well as business and real estate
development experience. Throughout his career he has served his government, his community and
leading corporations in significant and successful projects.
Mr. Moses was Vice Chairman of MP Biomedicals, Inc., a company dedicated to promoting research in the
life science and biotech industries; He was founder and chairman of National Investment Development
Corp. and of Brentwood Bank, in Los Angeles. Mr. Moses has been involved in the privatization and
capitalization of businesses in the emerging economies of the former Soviet Bloc. He was, for fifteen years,
a member of the Board of Directors of ICN Pharmaceuticals (NYSE) and Chairman of its Audit
Committee. He was a member of the Board of The Central Asian-American Enterprise Fund, appointed by
the President of the United States and was Chair of its Investment Committee. Mr. Moses was Chairman
of the Board of Directors of AcuNetx (ANXT).
Mr. Moses was active in the field of government housing programs and real estate syndication and
development for nearly 20 years, holding senior level positions at Boise Cascade Corporation, City
Construction Corporation and Transcontinental Realty Corporation.
Mr. Moses serves or served on various boards of not-for-profit and for-profit organizations, including the
UCLA Foundation, Franklin & Marshall College, Pitzer College, Hebrew Union College, Brentwood School
(of which he was the Chairman), Leo Baeck Temple (of which he was President). In addition he served on
several Presidential Commissions. He was an officer of the Democratic National Committee and served in
leadership roles in the presidential campaigns of Al Gore, Michael Dukakis, Paul Tsongas and Walter
Mondale. He served as an international Election Supervisor, in Bosnia and Albania.
Mr. Moses received a BS in Economics from Franklin & Marshall College and is a Cum Laude graduate of
Harvard Law School.
BUSINESS LEADERSHIP EXPERIENCE
Chairman, Genavus Group, LLC
Chairman, Brentwood Bank
Chairman, President and CEO, National Investment Development Corp
Chairman of the Board, AcuNetx
Vice Chairman, Galen Capital Corp.
Vice Chairman, MP Biomedicals
Board Member, ICN Pharmaceuticals (NYSE) (Chairman of Special Committee to Investigate Sexual
Harassment Issues)
Board Member, SPI Pharmaceuticals, Inc. (AMEX)
103 W. Camino Encanto • Palm Springs, CA 92264 • Tel. (310) 980-6920 • Fax. (310) 247-1967
STEPHEN MOSES INTERESTS
Chairman of the Board, Innolog Holdings, Inc.
President, Transcontinental Realty Corporation
Subsidiary CEO, Boise Cascade Corporation (NYSE)
Vice President, City Reconstruction Corp
Subsidiary President, Flagg Industries
Chairman, Tennessee Resources, Corporation
EDUCATION LEADERSHIP EXPERIENCE
Member of the Board, UCLA Foundation
Co-Chair, UCLA Annual Fund
Member of the Executive Committee, UCLA Annual Fund
Chairman, West Los Angeles Volunteer Committee, UCLA Annual Fund
Member of the Board of Trustees, Pitzer College
Member of the Board of Governors, Hebrew Union College
Member of the Board of Trustees, Franklin & Marshall College
Member of the Board, California State University Institute
Chairman of the Board, Brentwood School
Board Member and Strategic Advisor, South Bay Entrepreneurial Center
LEGAL & MEDIATION LEADERSHIP EXPERIENCE
Mediator, Superior Court of Los Angeles County
Member of the State Bar, California
Member of the Bar, Maryland (Former)
Harvard Law School, J.D. cum laude
103 W. Camino Encanto • Palm Springs, CA 92264 • Tel. (310) 980-6920 • Fax. (310) 247-1967
Exhibit 2
1/24/2020 Chipotle Menu Prices For 2019 | The Full Chipotle Mexican Grill Menu
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1 Alan Harris (SBN 146079) David Garrett (SBN 160274) 2 ELECTRONICALLY HARRIS & RUBLE 655 North Central Avenue, 17th Floor F I L E D 3 Glendale, CA 91203 Superior Court of California, County of San Francisco Telephone: (323) 962-3777 4 Facsimile: (323) 962-3004 01/31/2020 E-mail: aharris@harrisandruble.com Clerk of the Court BY: ANNA TORRES 5 dgarrett@harrisandruble.com Deputy Clerk 6 David Harris (SBN 215224) NORTH BAY LAW GROUP 7 116 E. Blithedale Ave.. Ste. 2 Mill Valley, CA 94941 8 Telephone: (415) 388-8788 Facsimile: (415) 388-8770 9 dsh@northbaylawgroup.com 10 Attorneys for Plaintiffs TANIKA TURLEY 11 SUSAN CARRITHERS 12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF SAN FRANCISCO 15 16 17 TANIKA TURLEY and SUSAN Case No. CGC-15-544936 CARRITHERS, individually and on behalf of all 18 others similarly situated, [Hon. Anne-Christine Massullo, Dept. 304] 19 Plaintiff, DECLARATION OF STEPHEN MOSES IN SUPPORT OF PLAINTIFFS’ 20 v. MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION 21 CHIPOTLE SERVICES, LLC; a Colorado SETTLEMENT business entity, and DOES 1 through and 22 including DOE 100, Date: February 24, 2020 Time: 9:15 a.m. 23 Defendants. Dept: 304 Civic Center Courthouse 24 400 McAllister Street San Francisco, CA 94102 25 26 27 28 MOSES DECL. IN SUPP. OF PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT DECLARATION OF STEPHEN MOSES 1 2 STEPHEN MOSES declares under penalty of perjury of the laws of the United States and the 3 State of California as follows: 4 1. I make this Declaration in support of the: Motion for Preliminary Approval of Class 5 Action Settlement with respect to proposed Wage Statement Settlement Class and Omnibus 6 Settlement Class encompassing the California employees who performed non-exempt, hourly 7 services for Defendant Chipotle Services, LLC (“Chipotle”). If sworn as a witness, I could 8 competently testify to each and every fact set forth herein from my own personal knowledge. 9 Witness Qualifications 10 2. I received a BS in Economics from Franklin & Marshall College and am a Cum 11 Laude graduate of Harvard Law School. I have served or served on various boards of not-for- 12 profit and for-profit organizations, including the UCLA Foundation, Franklin & Marshall College, 13 Pitzer College, Hebrew Union College, Brentwood School (of which I was Chairman), Leo Baeck 14 Temple (of which I was President), The Fraternity of Friends of the Music Center, and The Los 15 Angeles Ballet (of which I was President). In addition I served on several Presidential 16 Commissions. I was an officer of the Democratic National Committee and served in leadership 17 roles in the presidential campaigns of Al Gore, Mike Dukakis, Paul Tsongas and Walter Mondale. 18 I served as an international Election Supervisor, in Bosnia and Albania. 19 3. I have over 30 years of finance, mergers & acquisitions, as well as business and 20 real estate development experience. I was, for fifteen years, a member of the Board of Directors 21 of ICN Pharmaceuticals (NYSE) and Chairman of its Audit Committee. I was a Board Member 22 of SPI Pharmaceuticals (AMEX). I was Vice Chairman of MP Biomedicals, Inc. All three 23 companies were dedicated to promoting research in the life science and biotech industries. I was 24 founder and chairman of National Investment Development Corp. and of Brentwood Bank, in Los 25 Angeles. I was Chairman of the Board of Directors of AcuNetx. 26 4. I have been involved in the privatization and capitalization of businesses in the 27 emerging economies of the former Soviet Bloc. I was a member of the Board of The Central 28 -1- MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT 1 Asian-American Enterprise Fund, appointed by the President of the United States, and was Chair 2 of its Investment Committee. 3 5. I was active in the field of government housing programs and real estate 4 syndication and development for nearly 20 years, holding senior level positions at Boise Cascade 5 Corporation, City Construction Corporation and Transcontinental Realty Corporation. I was 6 named Housing Man of the Year in 1980 by the National Housing Conference. I was admitted as 7 a member of the State Bar of California in 1975. As of January 1, 2015, I have been on inactive 8 status. 9 6. A true and correct copy of my curriculum vitae is attached hereto as Exhibit 1. 10 From my business experience, as a CEO, Board Member of various companies and as a sole 11 proprietor I have had responsibility for analyzing employment issues. As part of my work, I 12 developed familiarity with various payroll systems. I am familiar with claims pursuant to 13 California Labor Code sections 203, 226, 226.7. As part of my continuing education, I regularly 14 review approved class action settlements in California, and recently served as an expert in a multi- 15 million dollar class action settlement in Sherman v. CLP Resources, Inc., Central District of 16 California Case No. Case No. CV 12-8080 GW (PLAx) consolidated with Case No. CV 12-8080 17 GW (PLAx). 18 Compensation 19 7. My hourly rate for Depositions or Trial is $325 per hour. My hourly rate for 20 preparation is $150 per hour. 21 Assignment 22 8. Upon request of Plaintiffs’ counsel, I have reviewed the proposed class settlement 23 in this case and have been asked to opine here with respect to whether the proposed settlement is 24 fair, reasonable and adequate, giving attention to the voucher option and whether it represents 25 meaningful value to the Class Members. 26 Interviews and Materials Reviewed 27 8. I have been actively working as an expert in this case, off and on since 2018, when 28 I was deposed by Chipotle. I submitted my expert report in support of Plaintiff’s Motion for Class -2- MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT 1 Certification, which was granted for the 7,000 member Wage Statement Class. 2 9. In preparing my opinions for the Class Certification motion I reviewed the relevant 3 pleadings, declarations, deposition transcripts and orders in this case. I examined the Declarations 4 of Ms. Turley and Ms. Carrithers, and Plaintiff’s counsel, Alan Harris, along with the Declarations 5 of twenty-five other CS workers and some dozens of emails received by the administrator of the 6 Belaire Notice in this case, sent in January of 2018. 7 10. In preparing my opinions for this Motion for Preliminary Approval, I reviewed the 8 proposed settlement agreement, Declaration of Alan Harris, proposed Notice Package, and other 9 relevant motion-related filings. I examined the settlement of the related Porras, Le Sure and 10 Sanchez cases. I have also reviewed a number of law review articles and treatises on voucher 11 settlements, including “Viewing Class Settlements Through A New Lens” By Kahn Scolnick and 12 Sheldon Evans (2017, Law 360); “Coupon Settlements: Two Steps Forward, One Step Back” by 13 Anna St. John (Competitive Enterprise Institute, 2017) and Circuit Split Regarding the “Coupon 14 Settlement Provisions of the Class Action Fairness Act” by Bryan A. Coleman (American Bar 15 Association, 2015). I have reviewed a number of approved voucher and coupon cases as indicated 16 below. 17 12. I have visited Chipotle restaurants in California and also reviewed online websites 18 which provide pricing information for Chipotle products. For example, www.menuandmeals.com; 19 www.fastfoodmenuprices.com; www.realmenuprices.com; www.menus.com; and 20 www.chipotle.com display prices for food items available at Chipotle. I have attached true and 21 correct copies of sample menus for Chipotle from www.realmenuprice.com at Exhibit 4 and 22 www.menuwithprice.com at Exhibit 5. The prices are generally consistent with each other and 23 those found on the Chipotle website. 24 13. I reviewed online menu prices for Chipotle restaurants in San Francisco, San 25 Diego, Los Angeles, Palm Springs, Santa Barbara, Sacramento and Orange County. I have found 26 them to be consistent, with slight, non-material variances. For example, a chicken burrito in San 27 Francisco costs $6.50 while a chicken burrito at the Beverly Hills location costs $6.70. I have 28 attached a true and correct copy of the Chipotle menu prices for the Chipotle at 50 California -3- MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT 1 Street in San Francisco at Exhibit 3. I have attached a true and correct print out of the Chipotle 2 menu prices for the Chipotle at 244 S. Beverly Drive in Beverly Hills at Exhibit 6. 3 Findings and Opinions 4 14. Wage Statement Settlement Class: With regard to reasonableness and fairness, I 5 note that class members do not have to submit claims forms or take any action to participate, 6 which reduces the burden on class members. If Class Members do nothing, they will receive a 7 coupon under the Settlement. The anticipated average settlement payment of $128 to the Wage 8 Statement Class members is a fair and reasonable result considering that the alleged violation 9 certified by the Court only involved penalties for 13 pay periods. For a low wage hourly worker 10 who worked 10 pay periods, the payment represents a recovery equal to 19% of the total potential 11 statutory penalties $950 ($50 for first period + ($100 per period * 9 pay periods), an excellent 12 result. However, the Court could hold “that [Chipotle] would not [be] subject to heightened 13 penalties for subsequent violations unless and until a court or commissioner notifies the employer 14 that it is in violation of the Labor Code.” See e.g. Amalgamated Transit Union Local 1309 v. 15 Laidlaw Transit Service, Inc., 2009 U.S. Dist. LEXIS 69842, 2009 WL 2448430, at *9 (S.D. Cal. 16 Aug.10, 2009); see also Trang v. Turbine Engine Components Technologies Corp., No. CV 12– 17 07658 DDP (RZx), 2012 WL 6618854 (C.D. Cal. Dec. 19, 2012) (“courts have held that 18 employers are not subject to heightened penalties for subsequent violations unless and until a court 19 or commissioner notifies the employer that it is in violation of the Labor Code”). In that case, the 20 total penalty would be $500 ($50 for first period * 10 pay periods), so the $128 recovery would 21 equal over 25% of the total potential statutory penalties, an excellent result.1 22 15. In summary, with regard to the Wage Statement Settlement Class, I believe that the 23 average settlement payment to the Wage Statement Class Members is fair and reasonable 24 considering that they need not submit a claim form to participate, and the payment represents a 25 substantial portion of their potential penalties. 26 1 27 See City of Detroit v. Grinnell Corp., 495 F.2d 448, 455 (2d Cir. 1974) (settlement amounted to only “a fraction of the potential recovery”); Carrington v. Starbucks Corp., 30 Cal. App. 5th 504, 528 28 (2018) (awarding PAGA penalties of only 0.2% of the maximum). -4- MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT 1 16. Voucher Settlement Class: With regard to reasonableness and fairness, I note that 2 class members do not have to submit claims forms or take any action to receive a Voucher, which 3 reduces the burden on class members. Further, the meal vouchers do not expire, they are fully 4 transferable, and they may be used in conjunction with other available vouchers, discounts or 5 rebates. This is further indicia of fairness. See Paul v Wine.Com, Inc., No. CGC - 13-534734, 6 2014 WL 7933997, at *1 (Cal. Super. Nov. 13, 2014) (evidence of what products can be 7 purchased with voucher aids court in determination of reasonableness). The coupons may be sold 8 or otherwise transferred freely, and do not expire or decrease in value. Unlike gift cards, which 9 have sometimes been criticized for their monthly “maintenance” charges, the Vouchers do not 10 decrease in value over time.2 The meal vouchers may be used in conjunction with other available 11 vouchers, discounts or rebates. The Vouchers do not require the use of any additional funds or 12 purchases to utilize them. 13 17. Chipotle operates a chain of restaurants that specialize in tacos and Mission-style 14 burritos, including over 400 in California and 2500 throughout the United States.3 Chipotle 15 restaurants can be found in 47 states and the District of Columbia.4 The prevalence of Chipotle 16 restaurants throughout California and the United States is yet another indicator of the real value 17 contained in the Vouchers. Even for Class Members who have moved to other states, the Voucher 18 can be used with relative ease. Or, the Voucher can be gifted or sold to a friend or family 19 member. 20 18. The voucher should not be considered a “coupon” because it does not require the 21 2 In 2009, Congress passed the Credit Card Accountability Responsibility and Disclosure (CARD) 22 Act, which set consumer protections for gift cards based on many state laws. The law provides that gift cards cannot expire within five years from the date they were activated and generally 23 limits inactivity fee on gift cards except in certain circumstances, such as if there has been no transaction for at least 12 months. The federal law creates a floor for regulation and leaves room 24 for state regulation on redeeming gift cards for cash and unclaimed property provisions. The Credit Card Accountability Responsibility and Disclosure (CARD) Act of 2009, Public Law 111- 25 24. Cal. Civil Code §1749.5 allows a “dormancy fee,” however, unlike gift cards, the Vouchers will have no expiration date or dormancy fee, a further indicator of real value. 26 3 “Chipotle Mexican Grill, Inc. (CMG)”. Yahoo Finance. Retrieved January 24, 2020. 4 27 See https://locations.chipotle.com/. See Exhibit 7 for a distribution of restaurants by state, according to the Chipotle website. It appears that the only states without a Chipotle are Alaska, 28 Hawaii and South Dakota. -5- MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT 1 holder to purchase any specific product at Chipotle or to spend any additional cash amount to buy 2 a meal at Chipotle.5 Even if considered a coupon, the voucher has real food purchasing value, 3 equivalent to cash. 4 19. I estimate that the $12 Voucher will buy at least one typical meal at Chipotle. The 5 purchase of a Burrito (Chicken) [$6.50] with Chips & Salsa [$1.95] plus a drink [$2.10] would 6 equal $10.55, with an average 8.5% sales tax6 ($0.90) would equal $11.90. This conclusion is 7 reinforced by the menu website, which states that “Chipotle menu prices typically costs from $6- 8 12 per person with large serving sizes and food prepared to order right in front of you.”7 9 20. Attached hereto as Exhibit 8 is an actual itemize receipt from the 301 N. 10 Larchmont location in Los Angeles for a Chicken Burrito, Small Soda (with refills) and Chips. 11 The total came out to $11.05 before tax, and $11.96 with tax. While the costs of the burrito was 12 slightly higher than the San Francisco store, the costs of the chips was lower, which roughly 13 equalized the costs. Another receipt is attached at Exhibit 9 for a Veggie Burrito and Chips. The 14 total cost was $9.61. If a $2.15 drink (with $0.17 tax) was added to the order, the total would be 15 $11.83. 16 21. Based on the prices and purchase information above, I am confident that a complete 17 meal can be purchased at Chipotle with the $12 Voucher, without additional cash outlay. 18 22. While this is not a federal case, I found it instructive to review the Order Granting 19 Final Approval of Class Action Settlement in the Northern District “voucher settlement” case 20 called Knapp v. Art.com, Inc., Case No. 3:16-cv-00768-WHO (2017) due to the arguably stricter 21 standard of approval of voucher settlements under Class Action Fairness Act, 28 U.S.C. § 1712 22 (“CAFA”).8 In Knapp, the court pointed out that it was highly-unlikely that a class member who 23 5 A coupon settlement is one in which the relief is a discount on another product or service offered 24 by the defendant in the lawsuit. The Class Action Fairness Act (CAFA, 28 U.S.C.A. § 1712); 14 A.L.R. Fed. 3d Art. 9 (Originally published in 2016). 25 6 San Francisco, San Diego have an 8.5% sales tax rate. https://www.cdtfa.ca.gov/taxes-and- fees/rates.aspx. The “true” California state sales tax is 6%, with 1.25% statewide county tax, and 26 applicable local taxes. https://www.salestaxinstitute.com/resources/rates 7 27 https://fastfoodmenuprice.com/chipotle-menu-prices/. See Exhibit 2. 8 CAFA requires a court to conclude that the settlement is “fair, reasonable, and adequate for class 28 members.” 28 U.S.C. § 1712 (e). -6- MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT 1 spend the exact amount of a voucher ($10 in that case), stating: 2 It is highly unlikely that class members will spend exactly $10 if and when they 3 redeem their vouchers. It is significantly more likely that they will either spend 4 more than $10, which raises other concerns because the vouchers will ultimately 5 benefit Art.com, or that they will spend less than $10 . . . Nonetheless, class 6 members who choose to use their voucher have the opportunity to realize a $10 7 value. 8 Knapp v. Art.com, Inc., 283 F. Supp. 3d 823, 832–33 (N.D. Cal. 2017). Here, it appears that a 9 $12 Voucher will closely approximate the cost of a full meal at Chipotle, meaning that Class 10 Members will not have to spend any additional funds to enjoy the approximate maximum benefit 11 of the Voucher. 12 23. In Knapp, the vouchers expired after 18 months, and only one could be used in a 13 single transaction, yet the court still found them to be fair and reasonable. Id. Here, in contrast, 14 the Vouchers have no expiration and can be combined and used without restriction, further 15 indicators of their real value. In summary, the settlement in Knapp was finally approved with 16 vouchers that had more restrictions than those proposed here. Therefore, this factor supports the 17 reasonableness of the proposed Voucher settlement. 18 24. The Voucher treats the class members equitably relative to each other. The Wage 19 Statement Class was a certified class, while the meal, rest breaks and other classes were not 20 certified. If an Omnibus Class feels as though they have individual claims they wish to pursue, 21 they can always opt out of the Settlement and pursue their claims in arbitration.9 In any event, the 22 mailing of the Class Notice to Class Members will apprise them of their rights and the opportunity 23 to pursue a claim individually if they so choose. This mailing of the Class Notice also provides 24 value to the Class Members, because it apprises the Class Members of their rights under the law, 25 and provides them with multiple attorneys to whom they may discuss their rights under the law. 26 9 27 The arbitration agreement does not require the employee to pay any costs or expense of the arbitration that the employee would not be required to pay if the matter had been heard in court. 28 Carrithers Declaration, Ex. 1. -7- MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT 1 25. Comparing the relief granted here versus similar approved settlements is a further 2 indicator of reasonableness. In Allen v. Bedolla, 787 F.3d 1218, 1221 (9th Cir. 2015)(“Labor 3 Ready”), a settlement was approved by the Ninth Circuit where similar low-wage hourly workers 4 were compensated with payments of $10, and (unlike here) were required to submit claims.10 The 5 amount payable to individual Omnibus Class Members is comparable to the amount approved for 6 payment to Class Members in a recent Alameda County Case in which Harris & Ruble was also 7 class counsel. In Altamirano v. Safeway, Case No. RG17851392 (December 13, 2019), the court 8 granted approval to a 35,000 member claims-made settlement in which group of class members 9 with late paychecks would receive approximately $7.20 (if all claims were submitted). See also In 10 re Uber FCRA Litigation, Case No. 14-cv-05200-EMC (N.D. Cal., 2018), a class action FCRA 11 claims-made settlement which proceeded in front of Judge Chen in the Northern District of 12 California. The estimated liability for Defendant was between $100 million and one billion 13 dollars. Judge Chen approved a $7.5 million settlement for a class of 1,025,954 employees, 14 which equated to $7.31 per employee and included other clams such as PAGA penalties.11 15 Therefore, here, even if the Omnibus Class Members took the cash option, the proposed settlement 16 appears to be in the “ballpark” of reasonableness required by Kullar. Kullar v. Foot Locker Retail, 17 Inc., 168 Cal.App.4th 116, 128 (2008). In this case, of course, Class Members are incentivized to 18 take the Voucher in order to double the amount they would have if they took the Cash option.12 19 26. My research indicates that similar voucher settlements have been approved in the 20 San Francisco Superior Court. On May 2, 2014, the court granted final approval to a voucher 21 settlement in Markkudrna v. Propark Am. W., 2014 Cal. Super. LEXIS 21139 & 2015 Cal. Super. 22 LEXIS 21682 (Case No. CGC-10-498142) (“Propark”). Propark was a claims made settlement in 23 10 In Labor Ready, certain class members qualified for $25 payments, but only if they submitted a 24 claim and had also used a cash disbursement machines. Allen v. Bedolla, 787 F.3d 1218, 1221 (9th Cir. 2015). Here, Class Members need not take any action to receive their share of the fund, 25 and they do not need to meet any specific requirements to receive their share. 11 26 A true and correct copy of the Order Granting Final Approval of Settlement is attached hereto as Exhibit 10. 12 27 It is perfectly permissible for a settlement to lead to a “win-win” situation for defendants (who may earn additional revenues) and for class members (who may save money on purchases they 28 already were likely to make). See Dunk, 48 Cal.App.4th at 1805 n.14. -8- MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT 1 which class members received “Free Parking Vouchers” for use only at Propark’s parking lots. 2 The “Free Parking Vouchers . . . shall be transferrable, shall have no expiration date, and may be 3 used at any Propark parking lot or facility, including Propark airport facilities.” Id. As here, the 4 value of the Free Parking Vouchers was “two times the value of the monetary payment”. Id.13 5 Therefore, the Propark case appears to support the current proposed settlement as the Vouchers in 6 this case are also transferable, non-expiring and may be utilized at any Chipotle. 7 27. Superiority: The significant jurisdictional issues present in this case must be 8 considered when assessing the proposed Settlement’s reasonableness. Chipotle could force all of the 9 Omnibus Class Members to arbitrate their claims on an individual basis. And based on the class action 10 waivers in the arbitration agreements, it is unlikely anyone in the Class would be able to benefit from a 11 class action settlement through arbitration. Thus, a significant percentage of the entire Settlement 12 Class would be forced to arbitrate their claims on an individual basis, with the prospect of a relatively 13 small individual award. The superiority of the class settlement supports its reasonableness. 14 28. In summary, with regard to the Omnibus Settlement Class, I believe that the 15 payment to the Class Members is fair and reasonable considering that they need not submit a 16 claim form to participate. The Voucher represents real value to the Class Members, who otherwise 17 would have to arbitrate their individual claims with the prospect of a relatively small award. 18 29. Presence of a Mediator and Extensive Motion Practice: Only after significant 19 discovery, the use of a mediator, and intense motion practice over several years did the parties 20 enter into the Settlement. I understand that the case was mediated with experienced wage and 21 hour mediator Jeff Krivis of First Mediation14, after several years of extensive discovery15 and 22 13 It appears the case was appealed and judgment affirmed in a noncitable case. 23 14 Krivis has over 30 years’ worth of experience as a mediator. 24 15 I understand that the investigation included formal written discovery, depositions, and exchange of payroll data pursuant to mediation. When Plaintiffs believed that Defendant was not producing 25 the required documents and deponents, Plaintiffs filed Motion to Compel further discovery, which resulted in the production of additional documents and witnesses. Chipotle provided over 25,000 26 pages in response to Plaintiffs’ RFP’s, including wage statements and punch data for hundreds of class members. Prior to certification, Plaintiffs’ counsel interviewed over 50 class members, and 27 secured declarations from approximately 25 class members. Eight depositions were completed. Chipotle deposed five class members, reviewing each individual’s entire payroll and employment 28 file prior to the depositions. Plaintiff took the depositions of Chipotle PMK (Person Most -9- MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT 1 motion practice, including Motions to Compel (Discovery); a Motion for Class Certification; a 2 Motion to Decertify; and a Motion for Summary Judgment (withdrawn). These factors are useful 3 the Court to consider in deciding whether to grant approval. See Rodriguez v. W. Publ’g Corp., 4 563 F.3d 948, 965 (9th Cir. 2009)(“We put a good deal of stock in the product of an arms-length, 5 non-collusive, negotiated resolution, and have never prescribed a particular formula by which that 6 outcome must be tested.”); In re Zynga Inc. Secs. Litig., 2015 WL 6471171, at *9 (N.D. Cal. Oct. 7 27, 2015) (holding that the parties’ use of mediator and fact that significant discovery had been 8 conducted “support the conclusion that the Plaintiff was appropriately informed in negotiating a 9 settlement”); Harris v. Vector Mktg. Corp., No. C-08-5198 EMC, 2011 WL 1627973, at *8 (N.D. 10 Cal. Apr. 29, 2011) (noting that the parties’ use of a mediator “suggests that the parties reached the 11 settlement in a procedurally sound manner and that it was not the result of collusion or bad faith 12 by the parties or counsel.”). 13 30. Experience of Counsel: The fact that the parties’ counsel worked on these cases at 14 length and have an understanding of their risks weighs in favor of finding the settlement 15 procedurally robust and the product of arm’s length negotiations. See In re Heritage Bond Litig., 16 2005 WL 1594403, at *9 (C.D. Cal. Mar. 9, 1989) (“The recommendation of experienced counsel 17 carries significant weight in the court’s determination of the reasonableness of the settlement.”) 18 31. Conclusion: I believe that adversarial procedural history and involvement of a 19 mediator both indicate a non-collusive, negotiated resolution which will provide substantial 20 benefits to the individual Class Members. In conclusion, I believe that the proposed Settlement is 21 fair and reasonable and should be approved. 22 I have read the foregoing, and the facts set forth herein are true and correct of my own 23 personal knowledge. Executed this 22nd day of January, 2020, at Palm Springs, California, within 24 Riverside County. 25 26 Stephen Moses 27 Qualified), a Team Director with responsibility for some 54 California restaurants, as well a senior 28 California store manager. I was also deposed. -10- MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT 1 PROOF OF SERVICE 2 I am an attorney for Plaintiff(s) herein, over the age of eighteen years, and not a party to the within action. My business address is 655 N. Central Ave., 17th Floor, Glendale, CA 91203. On January 3 25, 2020, I served the within document(s): 4 DECLARATION OF STEPHEN MOSES IN SUPPORT OF PLAINTIFF’S MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT 5 I caused such to be delivered by e-mail to: 6 angela.agrusa@us.dlapiper.com 7 levi.heath@us.dlapiper.com Steve.hernandez@dlapiper.com 8 I am readily familiar with the Firm’s practice of collection and processing correspondence for 9 mailing. Under that practice, the document(s) would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business, addressed as 10 follows: 11 Angela C. Agrusa Levi W. Heath 12 Steve L. Hernández DLA PIPER LLP (US) 13 2000 Avenue of the Stars Suite 400 North Tower 14 Los Angeles, California 90067-4704 15 MESSNER REEVES LLP Charles C. Cavanagh 16 1430 Wynkoop Street, Suite 300 Denver, Colorado 80202 17 I declare under penalty of perjury that the above is true and correct. Executed on January 25, 18 2020, at Los Angeles, California. 19 20 ______________________ 21 David Garrett 22 23 24 25 26 27 28 -11- MOSES DECL. IN SUPP. OF MOTION FOR PRELIM. APPROVAL OF CLASS ACTION SETTLEMENT Exhibit 1 STEPHEN MOSES INTERESTS BACKGROUND AND QUALIFICATIONS Mr. Moses has over 30 years of finance, mergers & acquisitions, as well as business and real estate development experience. Throughout his career he has served his government, his community and leading corporations in significant and successful projects. Mr. Moses was Vice Chairman of MP Biomedicals, Inc., a company dedicated to promoting research in the life science and biotech industries; He was founder and chairman of National Investment Development Corp. and of Brentwood Bank, in Los Angeles. Mr. Moses has been involved in the privatization and capitalization of businesses in the emerging economies of the former Soviet Bloc. He was, for fifteen years, a member of the Board of Directors of ICN Pharmaceuticals (NYSE) and Chairman of its Audit Committee. He was a member of the Board of The Central Asian-American Enterprise Fund, appointed by the President of the United States and was Chair of its Investment Committee. Mr. Moses was Chairman of the Board of Directors of AcuNetx (ANXT). Mr. Moses was active in the field of government housing programs and real estate syndication and development for nearly 20 years, holding senior level positions at Boise Cascade Corporation, City Construction Corporation and Transcontinental Realty Corporation. Mr. Moses serves or served on various boards of not-for-profit and for-profit organizations, including the UCLA Foundation, Franklin & Marshall College, Pitzer College, Hebrew Union College, Brentwood School (of which he was the Chairman), Leo Baeck Temple (of which he was President). In addition he served on several Presidential Commissions. He was an officer of the Democratic National Committee and served in leadership roles in the presidential campaigns of Al Gore, Michael Dukakis, Paul Tsongas and Walter Mondale. He served as an international Election Supervisor, in Bosnia and Albania. Mr. Moses received a BS in Economics from Franklin & Marshall College and is a Cum Laude graduate of Harvard Law School. BUSINESS LEADERSHIP EXPERIENCE Chairman, Genavus Group, LLC Chairman, Brentwood Bank Chairman, President and CEO, National Investment Development Corp Chairman of the Board, AcuNetx Vice Chairman, Galen Capital Corp. Vice Chairman, MP Biomedicals Board Member, ICN Pharmaceuticals (NYSE) (Chairman of Special Committee to Investigate Sexual Harassment Issues) Board Member, SPI Pharmaceuticals, Inc. (AMEX) 103 W. Camino Encanto • Palm Springs, CA 92264 • Tel. (310) 980-6920 • Fax. (310) 247-1967 STEPHEN MOSES INTERESTS Chairman of the Board, Innolog Holdings, Inc. President, Transcontinental Realty Corporation Subsidiary CEO, Boise Cascade Corporation (NYSE) Vice President, City Reconstruction Corp Subsidiary President, Flagg Industries Chairman, Tennessee Resources, Corporation EDUCATION LEADERSHIP EXPERIENCE Member of the Board, UCLA Foundation Co-Chair, UCLA Annual Fund Member of the Executive Committee, UCLA Annual Fund Chairman, West Los Angeles Volunteer Committee, UCLA Annual Fund Member of the Board of Trustees, Pitzer College Member of the Board of Governors, Hebrew Union College Member of the Board of Trustees, Franklin & Marshall College Member of the Board, California State University Institute Chairman of the Board, Brentwood School Board Member and Strategic Advisor, South Bay Entrepreneurial Center LEGAL & MEDIATION LEADERSHIP EXPERIENCE Mediator, Superior Court of Los Angeles County Member of the State Bar, California Member of the Bar, Maryland (Former) Harvard Law School, J.D. cum laude 103 W. Camino Encanto • Palm Springs, CA 92264 • Tel. (310) 980-6920 • Fax. (310) 247-1967 Exhibit 2 1/24/2020 Chipotle Menu Prices For 2019 | The Full Chipotle Mexican Grill Menu CATEGORIES Fast Menu Price - All US Menu Prices Home Menu Prices Opening hours Happy Hour Secret Menus Contact Chipotle Menu Prices Home » Chipotle Menu Prices SPONSORED SEARCHES food menu restaurant dinner meals mcd full menu mexican recipes Drivers who switch to Today, there are almost 2,000 Chipotle locations all over the United States, and you can find the same dedication to serving the highest quality, most nutritious foods at every Allstate can save $356. location you walk into. Chipotle menu prices typically costs from $6-12 per person with large serving sizes and food prepared to order right in front of you.