Order: SALVATORE MINEO INDIVIDUALLY, AND ON BEHALF OF ALL et al VS. CITY SIGHTSEEING CORPORATION, A DELAWARE et al

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                                IOUT

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Jun-13-2016 3:03 pm

Case Number: CGC-10-504804
Filing Date: Jun-13-2016 3:02
Filed by: ROBERT GOULDING
Image: 05434326
ORDER

SALVATORE MINEO INDIVIDUALLY, AND ON BEHALF OF ALL et al VS. CITY
SIGHTSEEING CORPORATION, A DELAWARE et al

001005434326

Instructions:
Please place this sheet on top of the document to be scanned.FIL. E. rt

JUN 13 2018

CLERKLOF,T! OURT
BY: puly lerk

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION

SALVATORE MINEO, GINA SCHEMBARI, No. CGC-10-504804
PHILLIP THOMAS NAILS, BENJAMIN
DUAX and DAVID HAYWARD, individually Action Filed: October 22, 2010
and on behalf of all others similarly situated,

Plaintiffs, [PROPOSED] ORDER
GRANTING FINAL APPROVAL
v. OF CLASS SETTLEMENT
CITY SIGHTSEEING CORPORATION, a Department: 502
Delaware corporation, and DOES 1 through
500, inclusive, The Honorable A. James Robertson II
Defendants.

AND RELATED CROSS-COMPLAINT.

-l-

[PROPOSED] ORDER GRANTING FINAL
APPROVAL OF CLASS SETTLEMENT Case No. CGC-10-504804The Motion for Final Approval of Class Settlement came on regularly for hearing on
April 26, 2016 in Department 502 of the above-entitled Court, the Honorable A. James
Robertson II presiding. Daniel Martinez de la Vega of the Law Office of Daniel Vega (together
with the Ladva Law Firm, “Class Counsel”) appeared as counsel for Plaintiffs Salvatore Mineo,
Gina Schembari, Phillips Thomas Nails, Benjamin Duax and David Hayward (“Plaintiffs” or
“Class Representatives”), and Elizabeth Thompson of Jones Bothwell Dion & Thompson, LLP
appeared as counsel for Defendant and Cross-Complainant CitySightseeing Corporation
(“Defendant”). Based on review of the record in this matter, including the papers filed by the
parties and the arguments of counsel, THE COURT FINDS AND ORDERS as follows:

I. FINDINGS

1. October 22, 2010, Plaintiffs filed a complaint against Defendant entitled Salvatore
Mineo, et. al. v. CitySightseeing Corp., et al in San Francisco County Superior Court, Case No.
CGC-10-504804 (“Action”), seeking to represent a class consisting of the current and former
employees and independent contractors of Defendant for, among other things, claims (“Class
Claims”) related to alleged: (a) unpaid overtime and misclassification of employees as
independent contractors; (b) violation of Business and Professions Code § 17200 (Unfair
Competition Law); (c) unjust enrichment; and (4) declaratory relief, arising during the period
from January 1, 2007 to October 22, 2010 (“Class Period”);

2. On October 17, 2011, Defendant filed a Cross-Complaint against Plaintiffs
Salvatore Mineo, Phillips Thomas Nails, Benjamin Duax and David Hayward (“Cross-
Defendants”) alleging causes of action against each of them for: (a) Money Had and Received;
(b) Open Book Account; and (c) Recovery of Money Paid by Mistake;

3. On August 30, 2012 and February 5, 2013, this Court granted in part and denied in
part Plaintiffs’ Motion for Class Certification and certified the following classes, consisting of a
total of 135 individuals (“Class Members”):

Class I: Claims by all front desk reception/inside sales employees and independent
contractors of Defendant who worked at Defendant’s San Francisco office during the Class

Period for unpaid overtime pay under California law;
-2-

[PROPOSED] ORDER GRANTING FINAL
APPROVAL OF CLASS SETTLEMENT Case No. CGC-10-50480427
28

Class II: Claims by all tour guides of Defendant who worked for Defendant in San
Francisco during the Class Period for unpaid overtime pay under California law;

Class III: Claims by all bus drivers who worked for Defendant in San Francisco office
during the Class Period for unpaid overtime pay under the California Unfair Competition Law
(collectively, “Class Claims”);

4. Plaintiffs, the Class Members, and Defendant have each been represented in the
Action by experienced and qualified attorneys;

5. Plaintiffs’ counsel has conducted significant relevant discovery relating to
Plaintiffs’ allegations in the Action, to which Defendant fully responded;

6. On July 22, 2013, Plaintiffs and Defendant reached an agreement to settle the
Action on the terms set forth in the Stipulation and Agreement re Settlement and Release
(“Settlement Agreement”), a copy of which is attached hereto as Exhibit 1;

7. The Settlement Agreement: (a) is the product of arms-length negotiations with
respect to the merits of each party’s claims and defenses; (b) is not the product of collusion by
the parties or counsel; (c) is fair, reasonable and adequate; (d) does not provide undue
preferential treatment of Class Representatives or a segment of the Classes; and (4) does not
provide for excessive compensation for Class Counsel;

8. Notice of the Settlement Agreement was provided to Class Members in a
reasonable manner; the notice constituted due, adequate and sufficient notice to all persons
entitled to be provided with notice; and the notice met the due process requirements of the
United States Constitution and complied with applicable law and the Rules of the Court;

9. _ A total of 66 Class Members submitted settlement payment claims to the Court-
appointed settlement administrator, Simpluris, Inc. (“Simpluris”), for a response rate of 48.88%.
No requests to opt out or objections to the Settlement Agreement were received.

Il. SETTLEMENT FUND PAYMENTS

Defendant will pay a total amount of $300,000.00 (“Settlement Sum”) in full settlement

of all pending issues between the parties, including, but not limited to, payment of all Class

Claims, Class Counsel’s fees and costs, incentive awards to the Class Representatives, and the
3.

[PROPOSED] ORDER GRANTING FINAL
APPROVAL OF CLASS SETTLEMENT Case No. CGC-10-504804costs of administering the settlement. Payment shall be made within 10 court days of notice of
entry of this Order Granting Final Approval of Class Settlement (“Order”). The Settlement
Sum is on deposit in Defendant’s counsel’s client trust account and shall be disbursed as follows:

(a) Plaintiffs’ counsel shall receive $82,658.40 in payment of legal fees, plus $24,000 in
reimbursement for out-of-pocket costs. These sums shall be disbursed by Defendant’s counsel
pursuant to joint instructions from the Ladva Law Firm and the Law Office of Daniel Vega;

(b) Simpluris shall be paid $24,000 for settlement administration costs;

(©) The Class Representatives shall each receive an incentive payment in the amount of
$3,000, for total incentive payments of $15,000; and

(d) The remainder of the Settlement Sum, in the amount of $162,341.60, shall be
disbursed to Simpluris for payment in accordance with the Settlement Allocation Chart attached
hereto as Exhibit 2.

Ill. DISMISSALS AND RELEASES

Defendant and its successors, assigns, affiliates, officers, attorneys and agents are hereby
released of and from any and all claims the Class Members have, ever had, or hereafter may
claim to have during the Class Period, arising from or in any way related to claims which were
or could have been asserted in this Action based on the facts alleged in the operative complaint
herein, as more particularly set forth in the Settlement Agreement.

Defendant and its successors, assigns, affiliates, officers, attorneys and agents are hereby
generally released of and from any and all claims the Class Representatives have, ever had, or
hereafter may claim to have from the beginning of time through and including the date of the
Settlement Agreement, as more particularly set forth in the Settlement Agreement.

Cross-Defendants and their respective heirs, assigns, attorneys and agents are hereby
generally released of and from any and all claims the Defendant and Cross-Complainant has,
ever had, or hereafter may claim to have from the beginning of time through and including the
date of the Settlement Agreement, as more particularly set forth in the Settlement Agreement.

The releases set forth herein fully, finally and forever settle and release all claims in law,

equity, or otherwise, known and unknown, suspected and unsuspected, disclosed and
4.

[PROPOSED] ORDER GRANTING FINAL
APPROVAL OF CLASS SETTLEMENT Case No. CGC-10-50480427

28

undisclosed, which now exist or formerly existed between or among the releasing parties and the

released parties with respect to the subject matter of the Settlement Agreement. All rights and

benefits the parties now have, or in the future may have by virtue of California Civil Code §

1542, as well as the provisions of any comparable law of any other jurisdiction, are hereby

waived and released. California Civil Code § 1542 provides as follows:

A general release does not extend to claims which the creditor
does not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have

materially affected his or her settlement with the debtor.

IV. DISMISSAL OF ACTION; CONTINUING JURISDICTION

Entry of this Order shall dismiss the Action with prejudice, subject to the Court's

continuing jurisdiction to enforce the Settlement. The Court shall have continuing jurisdiction

to enforce the terms of this Order, including after entry of judgment.

Dated:

Se

[PROPOSED] ORDER GRANTING FINAL
APPROVAL OF CLASS SETTLEMENT

Case No. CGC-10-504804Final Order of
Approval of Class
Settlement

EXHIBIT 1ASHWIN LADVA (SBN 206140)
LADVA LAW FIRM

530 Jackson St., 2nd Floor

San Francisco, CA 94133
Telephone: (415) 296-8844

DANIEL MARTINEZ DE LA VEGA (SBN 255885)
LAW OFFICES OF DANIEL VEGA

201 Spear Street, Suite 1100

San Francisco, CA 94105

Telephone: (415) 704-5067

Attorneys for Plaintiffs and Cross-Defendants
Salvatore Mineo, Phillip Thomas Nails, Benjamin Duax
and David Hayward and Plaintiff Gina Schembari

JONES BOTHWELL DION & THOMPSON LLP
ELIZABETH THOMPSON (SBN 112888)
PAUL J. DION (SBN 088231)

44 Montgomery Street, Suite 610

San Francisco, CA 94104-4608

Telephone: (415) 951-8900

Facsimile: (415) 951-8901

Attorneys for Defendant and Cross-Complainant
CitySightseeing Corporation

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION

SALVATORE MINEO, GINA SCHEMBARI, No. CGC-10-504804
PHILLIP THOMAS NAILS, BENJAMIN DUAX
and DAVID HAYWARD, individually and on behalf] Action Filed: October 22, 2010
of all others similarly situated,
. STIPULATION AND AGREEMENT
Plaintiffs, RE SETTLEMENT AND RELEASE

“ Date:

CITY SIGHTSEEING CORPORATION, a Delaward Time:
corporation, and DOES 1 through 500, inclusive, Dept.:

Trial Date: Vacated
Defendants.

AND RELATED CROSS-COMPLAINT.

STIPULATION RE SETTLEMENT AGREEMENT AND RELEASE No. CGC-10-504804VY ~
TABLE OF CONTENTS
Page
Table of Content ........cssssssessssssesssesesssenssssvecssssessssssvecssssuecesscessusessnecesnecauscassssessuessssescessveceessseses i
I.
Il.
Til.
TV. — SETTLEMENT AGREEMENT \....ccssssssscssssescsssesssnesesssecesssessssessvssssssesssecenssvecsssveesssnvees 6
A. Settlement Payment Amount and Payment Schedule ........scssssssssssesssseesseesessseeesesnee 6
B. _ Distribution Of Settlement Payment ............sesssscsssecsseessssseesesssecsssessvessecssucessusensevere 6
CC. RELCASES os. essessseecssesssessnsessssssessssecssnecsuveccnsesanssasecsusssscasecsuessessecsuvessecsrecssesensesssasess 7
D.
E. Covenant Not To Sue.
F. Prohibition On Use Of Agreement In Other ProceedingS ........sssssssssssessersssseeeeesere 9
Vv. PRELIMINARY APPROVAL OF SETTLEMENT; NOTICE TO CLASS .....c.sssesesecees 10
A. Proposed Notice Plan......ssscssssscsssseccssssecsssssssssecsssesssssscssecssscsssvvcssssecsssnecesnnecesnse 10
VI. | APPROVAL OF SETTLEMENT; CONTINUING JURISDICTION uu... sccscesessssessssseeees 12
VII. ADDITIONAL TERMS

A, AUthorit ys. cccesssssessseesecneessssssessessesseeseesresnneeses

B. Construction

C. Binding Effect...

EXHIBIT A: CLASS NOTICE

EXHIBIT B: PLAN OF ALLOCATION
EXHIBIT C: PROPOSED ORDER GRANTING JOINT MOTION FOR PRELIMINARY

APPROVAL OF CLASS SETTLEMENT

EXHIBIT D: VERIFICATION FORM

EXHIBIT E: STIPULATED ORDER TO VOID SETTLEMENTs L

L INTRODUCTION

This Stipulation Re Settlement Agreement and Release is entered into by and between
the Plaintiffs, identified more particularly below, and Defendant and Cross-Complainant
CitySightseeing Corporation for the purpose of settling this Action. The Action has been
certified in part as a class action pursuant to Code of Civil Procedure Section 382. Legally
final Court approval of this Agreement is a condition precedent for the settlement
contemplated in this Agreement.

It is hereby stipulated and agreed as follows:

Tl. DEFINITIONS

A. “Action” means the above-captioned action now pending before this Court.

B. "Agreement" means this Stipulation Re Settlement Agreement and Release.

C. “California Law Plaintiffs” means all former and current employees and/or
independent contractors employed by CitySightseeing as front desk employees or
tour guides for the period January 1, 2007 through and including October 22,
2010.

D.  “CitySightseeing” means CitySightseeing Corporation, also referred to herein as
“Defendant” or “Cross-Complainant.”

E. “CitySightseeing Parties” means CitySightseeing Corporation and its successors,
assigns and affiliates, and their current, former and future partners, officers,
directors, employees, benefit plan administrators and sponsors, benefit plans and
related trusts, insurers, independent contractors, attorneys, trustees, fiduciaries,
representatives and agents

F. “Claims” means any and all claims, liabilities, demands, causes of action, costs,
expenses, attorney’s fees, damages, indemnities and obligations of every kind and
nature, in law, equity or otherwise, known and unknown, suspected and
unsuspected, disclosed and undisclosed.

G. “Claims Administrator” means Simpluris, Inc., 3176 Pullman Street, Suite 123,

Costa Mesa, California 92626, or such other claims administrator as Plaintiffs’

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STIPULATION RE SETTLEMENT AND RELEASE No. CGC-10-504804

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Counsel and Defendant’s Counsel may agree to designate.
“Class Members” means all California Law Plaintiffs and Federal Law Plaintiffs
collectively, also referred to herein as “Plaintiffs.”
“Class Member Payments” means all payments made to the Class Members
pursuant to this Agreement and Settlement.
“Plan of Allocation” means the schedule attached hereto as Exhibit B.
“Class Representatives” means Salvatore Mineo, Gina Schembari, Phillip Nails,
Benjamin Duax and David Hayward.
“Class Representatives Parties” means the Class Representatives on behalf of
themselves and their heirs, executors, administrators, attorneys, agents and
assigns.
“Class Representative Payments” means all payments to the Class
Representatives pursuant to this Agreement and Settlement, in addition to any
Class Member Payments made to them.
“Complaint” means the Third Amended Complaint for Damages filed on March
8, 2012 and all causes of action and claims alleged in the original Complaint for
Damages filed on October 22, 2010, the First Amended Complaint for Damages
filed on November 24, 2010 and the Second Amended Complaint for Damages
filed on January 18, 2011.
“Cross-Complaint” means the complaint filed by CitySightseeing on October 18,
2011 against Salvatore Mineo, Phillip Nails, Benjamin Duax and David Hayward.
“Cross-Complainant” means CitySightseeing Corporation, also referred to herein
as “CitySightseeing” or “Defendant.”
“Cross-Defendants” means Salvatore Mineo, Phillip Nails, Benjamin Duax and
David Hayward.
“Defendant” means CitySightseeing Corporation, also referred to herein as
“CitySightseeing” or “Cross-Complainant.”

“Defendant’s Counsel” means Jones Bothwell Dion & Thompson LLP.

2

STIPULATION RE SETTLEMENT AND RELEASE No. CGC-10-504804CC.

DD.

EE.

FF.

GG.
HH.

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“DOL” means the Wage and Hour Division of the United States Department of
Labor.

"Effective Settlement Date" means 60 days after a final judgment or order is
entered and mailed to all parties in accordance with California Rule of Court
8.104.

“Federal Law Plaintiffs” means all former and current employees and/or
independent contractors employed by CitySightseeing as bus drivers for the
period January 1, 2007 through and including October 22, 2010.

“Final Approval Hearing” means a hearing scheduled by the Court for the
purpose of finally approving the Settlement.

“Judgment” means the entry of judgment on the Order of Final Approval.
“NCOA” means the change of address registry maintained by the United States
Postal Service.

“Class Notice” means the notice attached hereto as Exhibit A.

. “Verification Form” means the form attached hereto as Exhibit D.

. “Order Granting in Part and Denying Part Plaintiffs’ Motion for Class

Certification” means the Order by the same name issued by this Court on
February 5, 2013;

“Order Granting Preliminary Approval” means the Proposed Order of Final
Approval attached hereto as Exhibit C.

“Order of Final Approval” means an order executed and filed by the Court
granting final approval to the Settlement.

“Plaintiffs” means the California Law Plaintiffs and Federal Law Plaintiffs
collectively.

“Plaintiffs’ Counsel” means Ashwin Ladva of the Ladva Law Firm and/or Daniel
Martinez de la Vega of the Law Office of Daniel Vega.

“Releasing Parties” means all persons providing a release hereunder.

“Settlement” means the settlement agreement described herein.

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STIPULATION RE SETTLEMENT AND RELEASE No. CGC-10-50480427

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Ii.

E,

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Il. “Settlement Payment” means the total non-reversionary sum of $300,000.00,
which includes all payments to the Class Members, Class Representative
enhancements, attorneys’ fees and costs and third-party administration costs.

JJ. “Stipulated Order to Void Settlement” means the proposed order attached hereto
as Exhibit E.

RECITALS

A. The Action was filed October 22, 2010 by Class Representatives as an overtime

class action on behalf of the California Law Plaintiffs and the Federal Law

Plaintiffs for alleged violations of state and federal wage and hour laws;

. The Complaint alleges causes of action for: (1) failure to pay overtime wages to the

California Law Plaintiffs pursuant California Labor Code Section 510; (2) recovery
of penalties under California Labor Code Section 203 and 203.1; (3) failure to
provide rest and meal periods pursuant to California Labor Code Section 226.7;

(4) penalties for failure to maintain accurate pay records under California Labor
Code Section 226; (5) violation of California Business and Professions Code
Section 17200; (6) unjust enrichment; (7) declaratory relief based on the first, third,
and fourth causes of action; and (8) failure to pay overtime wages to the Federal
Law Plaintiffs under the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. §
207(a)(1);

. Defendant has answered the Complaint in the Action, denying any and all liability

to the Plaintiffs, denying the damages alleged by the Plaintiffs, and raising

numerous affirmative defenses;

. The Cross-Complaint alleges causes of action against each of the Cross-Defendants

for: (1) Money Had and Received; (2) Open Book Account; and (3) Recovery of
Money Paid by Mistake and seeks damages from Salvatore Mineo in the amount of
$1,140.00, from Phillip Nails in the amount of $1,528.00, from Benjamin Duax in
the amount of $1,497.00 and from David Hayward in the amount of $2,979.00;

Cross-Defendants have answered the Cross-Complaint in the Action, denying any

4

STIPULATION RE SETTLEMENT AND RELEASE No. CGC-10-504804st ~~

and all liability to the Cross-Complainant, denying the damages alleged by the

Cross-Complainant, and raising numerous affirmative defenses;

. Under the Order Granting in Part and Denying in Part Plaintiffs’ Motion for Class

Certification, the overtime claims of the California Law Plaintiffs under California
Labor Code Section 510 and California Business and Professions Code Section
17200 and the overtime claims of the Federal Law Plaintiffs under California
Business and Professions Code Section 17200, for the period January 1, 2007
through October 20, 2010, were certified for class treatment, and class certification

was denied as to all other causes of actions and claims;

. In or around January 2013, the DOL commenced an investigation into the status of

CitySightseeing’s drivers, following which Defendant was advised by the DOL that
CitySightseeing’s drivers are exempt from overtime under the Motor Carrier Act

exemption to the FLSA, 29 USC § 213(b)(1);

. The parties have investigated the facts underlying the Action, conducted extensive

discovery and trial preparation and desire to fully and finally settle and
completely resolve all rights, claims, causes of action, and proceedings between
them as set forth more specifically below, without any admission of the claims
and/or defenses raised by Plaintiffs, Defendant or Cross-Defendants; and

The parties participated in mediation on July 22, 2013 with attorney Jeffrey A.
Ross, a professional mediator and recognized expert in employment law, and
concluded that settlement on the terms set forth herein is fair, reasonable and

adequate.

SETTLEMENT AGREEMENT
A. Settlement Payment Amount and Payment Schedule.

In compromise of the disputed claims for overtime compensation, Defendant will pay

the total non-reversionary sum of $300,000.00, which includes all payments to the Class

Members, Class Representative enhancements, attorneys’ fees and costs and third-party

administration costs. The Settlement Payment shall not include Defendant’s share of the

5

STIPULATION RE SETTLEMENT AND RELEASE No. CGC-10-50480427
28

s L
payroll taxes on any amounts allocated to wages, for which Defendant shall be solely
responsible in addition to the Settlement Payment.

The Settlement Payment shall be made on the following schedule:
i. $150,000.00 will be deposited into Defendant’s Counsel’s client trust account on
or before September 30 2013, to be disbursed as ordered by the Court;
ii. $40,000.00 will be paid on or before June 1, 2014;
iii. $40,000.00 will be paid on or before August 1, 2014;
iv. $40,000.00 will be paid on or before June 1, 2015; and
y. $30,000.00 will be paid on or before August 1, 2015.
B. Distribution Of Settlement Payment.
i, The reasonable costs of claims administration shall be paid from the Settlement
Payment to the Claims Administrator on terms and conditions to be agreed upon between
Plaintiffs’ Counsel, Defendant’s Counsel and the Claims Administrator.
ii, Payments shall be made to the Class Members according to the Plan of Allocation
attached hereto as Exhibit B.

iii, Each Class Representative shall be paid a Class Representative Payment in an
amount not to exceed $4,000.00, Each class member participated in this case by meeting with
Plaintiffs’ counsel, responding to extensive written discovery and preparing for and attending
their depositions. The Cross-Defendant Class Representatives also had to defend against the
Cross-Complaints filed by the Cross-Complainant CitySightseeing. In addition, the Class
Representatives participated in mediation activities and settlement negotiations. The Class
Representatives also facilitated communications with other putative class members.

iv. Plaintiffs’ Counsel fees shall be legal fees in an amount not to exceed 33%
($100,000.00) of the Settlement Payment, plus reasonable costs.

v. Each Class Member shall be solely responsible for personal tax liability arising
from any payments made to the Class Member under this Settlement, including but not
limited to state or federal income tax, social security tax or other taxes on all or any part of

the settlement proceeds. Class Member Payments and Class Representative Payments shall

6

STIPULATION RE SETTLEMENT AND RELEASE No. CGC-10-504804be in the form of wages, subject to customary withholdings and reported by Defendant on
IRS Form W-2.

vi. The only amounts to be paid to any Class Member are set forth in this Agreement.
There will be no payments for interest, penalties under any provision of the California Labor
Code or liquidated damages under 29 U.S.C. § 260.

vii. Class Members Payments shall not be used to calculate eligibility for, or
calculation of any of Defendant’s employee benefits, and Defendant will not modify Class
Members' previously credited hours of service or other eligibility criteria under any
employee benefit or welfare plan sponsored by Defendant.

viii. In the event that 40% or more of the Class Members opt out of the Settlement,
Defendant may, at its sole option, void the Agreement by filing the Stipulated Order to Void
Settlement, in the form attached hereto as Exhibit E.

C. Releases.

i. Releases By Class Members.
Except for the obligations contained in this Agreement, the Class Member Parties hereby

forever release, acquit and discharge the CitySightseeing Parties of and from any and all
Claims the Class Member Parties have, ever had, or hereafter may claim to have from January
1, 2007 through and including October 22, 2010, arising from or in any way related to Claims
which were or could have been asserted in this Action based on the facts alleged in the
Complaint. The released Claims include but are not limited to Claims under California Labor
Code Sections 203, 203.1, 226.7, 226, 510 and 2699 et seq.; Wage Order 9 of the California
Industrial Welfare Commission, 8 CCR § 11090; Business and Professions Code Section
17200; the Fair Labor Standards Act, 29 U.S.C. § 207(a)(1); and Claims for unjust enrichment,
declaratory relief and any other similar federal, state, or local law of any jurisdiction.
ii, General Releases By Class Representatives.

Except for the obligations contained in this Agreement, the Class Representative Parties

hereby forever generally release, acquit and discharge the CitySightseeing Parties of and from

any and all Claims the Class Representative Parties have, ever had, or hereafter may claim to

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STIPULATION RE SETTLEMENT AND RELEASE No. CGC-10-50480427

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have from the beginning of time through and including the Effective Settlement Date. The
released Claims include but are not limited to Claims under California Labor Code Sections
203, 203.1; 226.7, 226, 510 and 2699 et seq.; Wage Order 9 of the California Industrial
Welfare Commission, 8 CCR § 11090; Business and Professions Code Section 17200; the Fair
Labor Standards Act, 29 U.S.C. § 207(a)(1); and Claims for unjust enrichment, declaratory
relief and any other federal, state, or local law of any jurisdiction.

iii. General Release by CitySightseeing.

Except for the obligations contained in this Agreement, the CitySightseeing Parties
hereby forever generally release, acquit and discharge the Class Representative Parties of and
from any and all Claims the CitySightseeing Parties have, ever had, or hereafter may claim to
have from the beginning of time through and including the Effective Settlement Date. The
released Claims include but are not limited to Claims for money had and received, open book
account and recovery of money paid by mistake and any other federal, state, or local law of
any jurisdiction.

D. Waiver Of Unknown Claims.

The nature, extent and possible result of the Claims released hereby may not now be
fully known or anticipated, and the Releasing Parties may later discover facts in addition to
or different from those which they now know or believe to be true with regard to the Claims,
the Action or any other subject of this Agreement. Releasing Parties nevertheless intend
fully, finally and forever to settle and release all Claims in law, equity, or otherwise, known
and unknown, suspected and unsuspected, disclosed and undisclosed, which now exist or
formerly existed between or among the Releasing Parties and the parties released hereby
with respect to the subject matter of this Agreement. Parties acknowledge they have been

advised of the provisions of California Civil Code section 1542, which reads as follows:

A general release does not extend to claims with the creditor
does not know or suspect to exist in his or her favor at the time
of executing the release, which if known by him or her must
have materially affected his or her settlement with the debtor.

Releasing Parties hereby waive all rights and benefits which they now have, or in the
future may have by virtue of the provisions of California Civil Code section 1542, as well as

8

STIPULATION RE SETTLEMENT AND RELEASE No. CGC-10-504804the provisions of any comparable law of any other jurisdiction. This waiver is an essential
and material term of this Agreement, without which the consideration relating hereto would
not have been delivered.

Upon the Effective Date, the sole recourse for any alleged violation of this Agreement
will be to enforce this Agreement, and not a revival of any Claim.

The Class Members’ release of unknown claims applies only to the Claims described
in section IV(C)(i) of this Agreement. The Class Representatives’ release of unknown
claims is described in paragraph IV(C)(ii) of this Agreement. Cross-Defendant
CitySightseeing’s release of unknown claims is described in paragraph IV(C)(iii) of this
Agreement.

E. Covenant Not To Sue

Pending the Effective Date, the Class Representative Parties shall not, directly,
representatively, or in any other capacity, commence or prosecute any action or proceeding
in any court or tribunal asserting any of the released Claims against any of the
CitySightseeing Parties. Pending the Effective Date, the CitySightseeing Parties shall not,
directly, representatively, or in any other capacity, commence or prosecute any action or
proceeding in any court or tribunal asserting any of the released Claims against any of the
Class Representative Parties.

F. Prohibition On Use Of Agreement In Other Proceedings.

The parties have entered into this Agreement in order to put to rest all controversy
and to avoid further expense and uncertainty, without in any way acknowledging any fault or
liability. Neither the Agreement or the Settlement, nor any of the terms hereof, nor any
proceedings, negotiations or other communications related to the Agreement or Settlement,
shall be construed or deemed to be evidence of an admission by Defendant or Cross-
Defendants of any liability or wrongdoing whatsoever, the truth of the allegations of the
Complaint or the Cross-Complaint, or any lack of merit in the defenses pleaded by
Defendants and Cross-Defendants. This Agreement shall be deemed to fall within the

protection afforded offers to compromise under California Evidence Code Section 1152,

9

STIPULATION RE SETTLEMENT AND RELEASE No. CGC-10-504804Federal Rule of Evidence 406 and the provisions of comparable laws of any other
jurisdiction. Neither the Agreement or the Settlement, nor any of the terms hereof, nor any
proceedings, negotiations or other communications related to the Agreement or Settlement,
shall be offered by any person or received in evidence in any judicial or quasi-judicial
administrative proceeding for any purpose other than for purposes of effectuating settlement
of the Action as set forth herein. Notwithstanding the foregoing, a party hereto may offer
this Agreement in evidence to the extent required by law, or in connection with the provision
of information to the Internal Revenue Service, the California Franchise Tax Board, or any
other state or local governmental taxing authority.
Vv. PRELIMINARY APPROVAL OF SETTLEMENT; NOTICE TO CLASS

The parties hereby request that the Court enter the Proposed Order Granting
Preliminary Approval of Class Action Settlement, attached hereto as Exhibit A, and ordering
the proposed notice plan.

A. Proposed Notice Plan.

Following entry of the Order of Preliminary Approval, notice thereof shall be
provided to Class Members using the following procedures:

i. Within ten (10) days after issuance of the Order of Preliminary Approval,
Defendant shall provide the Claims Administrator and Plaintiffs’ Counsel with the names,
most current mailing addresses and social security numbers for the Class Members from
Defendant’s records. This information shall remain confidential and shall not be disclosed to
anyone, except to applicable taxing authorities and as needed by the Claims Administrator to
carry out the reasonable efforts required by this Agreement, or pursuant to express written
authorization by Defendant, or by order of the Court.

ii. Within twenty-eight (28) days after issuance of the Order of Preliminary
Approval, the Claims Administrator shall mail the Class Notice to all Class Members by
first-class mail using the most current mailing address information available for Class
Members from Defendant’s records or from an NCOA search. The Class Notice shall

include an Opt-Out Form and a statement of the steps the Class Member must take to obtain

10

STIPULATION RE SETTLEMENT AND RELEASE No. CGC-10-50480427

28

a settlement payment. The Class Notice shall inform the Class Members of all applicable
deadlines.

iii. If the Class Notice is returned because of incorrect addresses, the Claims
Administrator and Plaintiffs' Attorneys shall have thirty (30) days from receipt of the
returned Class Notice to search for more current addresses and re-mail the Class Notice. If
new address information is obtained by return mail, the NCOA process or any other means
prior to the expiration of that thirty (30) day period, the Claims Administrator shall promptly
forward the Class Notice to the addressee via first-class regular U.S. Mail indicating on the
Class Notice the date it was re-mailed, and notify counsel for Defendants and Plaintiffs’
Counsel of the date of each re-mailing. The deadlines established in this Agreement shall be
extended for Class Members whose Class Notice is re-mailed pursuant to this paragraph.

iv. The Claims Administrator shall execute a declaration that it has completed the
obligations set forth in subparagraphs ii and iii above.

vy. The Class Notice shall provide that Class Members who wish to object to the
Settlement must file with the Court and serve on counsel for the parties either a written
statement objecting to the Settlement or a written notice of intention to appear at the Final
Approval Hearing and object. Such written statement or notice must be filed with the Court
and served on counsel for the parties no later than fifteen (15) days before the date of the
Final Approval Hearing. Class Members who fail to file and serve timely written objections
or notice of intention to appear and object in the manner specified above shall be deemed to
have waived any objections and shall be foreclosed from making any objection (whether by
appeal or otherwise) to the Settlement, unless allowed with special leave of Court.

vi. A Final Approval Hearing shall be conducted on such date as ordered by the
Court. No later than thirty (30) days before the Final Approval Hearing, the parties shall file
a memorandum of points and authorities in support of the Settlement. Upon final approval of
the Settlement by the Court at or after the Final Approval Hearing, the parties shall present
the proposed Order of Final Approval, which shall dismiss the Action with prejudice, subject

to the Court's continuing jurisdiction to enforce the Settlement.

ll

STIPULATION RE SETTLEMENT AND RELEASE No. CGC-10-504804VI. APPROVAL OF SETTLEMENT; CONTINUING JURISDICTION

Defendants obligations under this Agreement will become final and effective on the
Effective Settlement Date. If the Court does not execute and file the Order of Final
Approval, or in the-event that such Order of Final Approval does not become final for any
reason, or will only be issued subject to a material change, or in the event that Effective
Settlement Date does not occur, this Agreement shall be deemed null and void ab initio, shall
be of no force or effect whatsoever, and shall be without prejudice to the claims, defenses,
rights and contentions of Defendant or Plaintiffs in this Action or in any other action, and the
Court, on motion of any party or on its own motion, may vacate any orders entered pursuant
to this Agreement which are inconsistent with restoration of the status quo preceding
execution of this Agreement.

The parties agree to cooperate in seeking Court approval for the complete disposition
of the Action in accordance with applicable law and the terms of this Agreement. The parties
shall join in taking such other steps as may be necessary or as may be requested by the Court,
and otherwise use their best efforts to effectuate the terms of this Agreement.

The Court shall have continuing jurisdiction to enforce the terms of the Settlement,
including after entry of Judgment.

VII. ADDITIONAL TERMS

A. Authority. The undersigned warrants that he or she has full right, power,
authority and legal capacity to execute, deliver and perform this Agreement, without the need
for any consent, approval or other action by any other person or entity, except the Court.

B. Construction. Counsel for the respective parties have reviewed and participated in
the drafting of this Agreement, and the rule of construction that ambiguities shall be resolved
against the drafter shall not be used or applied in the interpretation of this Agreement.

C. Binding Effect. This Agreement is binding upon and shall inure to the benefit of
the parties to this Agreement, as well as their respective current, former and future parents,

subsidiaries, heirs, successors and assigns.

12

STIPULATION RE SETTLEMENT AND RELEASE No. CGC-10-504804va PLBLIY

Dated:

Salvatare Minco

An

a

"Gina Schombart

LULMOT. ik,

pated: —_/ of 3/ Zo3

Dated: left / 2 ol >

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Pillip T, Nails

Bonjamin Dusx

Deh theyre

APPROVED DY COUNSEL,

Ve David pSyvard

LARVA LAW RR

By ~

wn af
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shwin Ladwe
Attorngy$ for Pyaintiffs and Ci

LAW OFFI

Vl VEGA
ar

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Danial Martino do la Vega
Avtornoys for Plainti ‘and Cross-Defendants

12 _

STIPULATION RU SETTLEMENT AND RIMEASE

Ho, CGC10-804K04Dated: _7 i/\ Vv [&

Dated: __ 7/4 |e

ITIS SO ORDERED:

Dated:

Christian Watts, CEO
CitySightseeing Corporation

JONES BOTHWELL DION & THOMPSON LLP

By,

Elizabeth Thompson
for Defendant and Cross-Complainant
CitySightseeing Corporation

Atto:

The Honorable
San Francisco Superior Court

14

STIPULATION RE SETTLEMENT AND RELEASE

No, CGC-10-504804Exhibit AEXHIBIT A
CLASS NOTICE

STIPULATION RE SETTLEMENT AND RELEASE

No. CGC-10-504804I ~

NOTICE OF CLASS ACTION AND
PROPOSED SETTLEMENT

Salvatore Mineo, Gina Schembari, Phillip Nails, Benjamin Duax and David Hayward v.
CitySightseeing Corporation
Case No. CGC-10-504804, Superior Court of California, City and County of San Francisco

TO hourly, non-exempt individuals who performed
work for CitySightseeing Corporation In San
Francisco at any time from January 1, 2007 through
October 22, 2010.

A Court authorized this notice, This is not a solicitation from a lawyer.

> THE PURPOSE OF THIS NOTICE IS TO TELL YOU ABOUT A PROPOSED
SETTLEMENT OF A CLASS ACTION AS A RESULT OF WHICH YOU MAY BE
ELIGIBLE TO RECEIVE MONETARY BENEFITS. YOU HAVE BEEN IDENTIFIED
AS A CLASS MEMBER. THIS PROPOSED SETTLEMENT MAY AFFECT
YOUR RIGHTS, SO PLEASE READ THIS NOTICE CAREFULLY.

> This settlement will provide $300,000.00 to pay class members, class members’
overtime, attorneys’ fees and costs, an incentive fee to the class representatives and the
costs of administering this settlement.

> This settlement resolves the above-entitled class action lawsuit where Salvatore Mineo,
Gina Schembari, Phillip T Nails, Benjamin Duax, and David Hayward sued
CitySightseeing Corporation (“CitySightseeing”), alleging, among other things, that
CitySightseeing failed to pay an overtime rate of pay to them and class members for
overtime work performed.

> This Court has preliminarily approved this settlement, which provides payments to
qualified class members who allegedly were not paid an overtime rate of pay at any time
during the period from January 1, 2007 to October 22, 2010.

> Your legal rights will be affected whether you act or don’t act. Please carefully read
this entire notice.

Bey NM Ncw PRO ee Mince a VICE

| You may decide to complete and return the enclosed claim form

1within 45 days, in which case you will receive a check for your
proportionate share of the Settlement Payment subject to the Court’s
| final approval of the settlement.

If you do nothing (do not submit a claim, do not opt out, or do not
object) you will not receive any money, but you will still give up any
right you may have to sue for violations under the operative
complaint, including but not limited to unpaid wages, related claims
and penalties released by the settlement and as specified in Section
IV.

‘| You can object to the fairness of the settlement by filing a written
objection with the Court explaining why you don’t like the settlement.

If you timely file an objection, you can come to the hearing and ask to
speak to the Court about the fairness of the settlement.

You may exclude yourself from the settlement of this lawsuit by
timely filing a written “opt-out” statement and mailing it to, Class
Administrator, c/o SIMPLURIS, P.O. Box, Santa Ana, CA 26170.

These rights and options — and the deadlines for each — are explained in this Notice.

> CitySightseeingcannot penalize you for choosing to remain in the settlement and
receive a payment. Similarly, CitySightseeing cannot retaliate against you for
objecting to the settlement terms.

> The purpose of this Notice is to explain your rights as a class member and to inform you
of your ability to object to the terms of the settlement.

> You will not receive any payment unless the settlement is finally approved by the
Court.

> Any questions? Read on, or contact Class Counsel at (415) 296-8844.

BASIC INFORMATION
Dear <><>;
DESCRIPTION OF THE CLASS

The Superior Court of California, City and County of San Francisco, has certified the
following class:

All hourly, non-exempt front desk employees, tour guides and bus drivers who performed
work for CitySightseeing Corporation in San Francisco at any time during the period from
January 1, 2007 through October 22, 2010 and who did not receive an overtime rate of pay for
overtime work as required under California Labor Code Section 510 and California Business and
Professions Code Section 17200.

You have been identified as a member of the Class. Counsel for the Class are: Ashwin
Ladva, Esq., Ladva Law Firm, 530 Jackson Street, 2" Floor, San Francisco, CA 94133 (415)‘

So Y

296-8844; and Daniel Martinez de la Vega, Esq., Law Offices of Daniel Vega, 201 Spear Street,
Suite 1100, San Francisco, CA 94105 (415) 287-6203.

ft Wh

CitySightseeing records show that you worked as a front desk employee, tour guide or
bus driver at some time during the period from January 1, 2007 to October 22, 2010. As such,
you are entitled to receive payments under the terms of the settlement once it has been finally
approved by the Court. You have legal rights and options that you may exercise before the Court
makes a decision as to whether final approval should be given to the settlement. A hearing will
be held by the Court to decide whether the settlement is fair, reasonable and adequate (the
"Fairness Hearing").

iS JawSuit about? oe |

This lawsuit claims, among other things, that from January 1, 2007 through October 22,
2010, CitySightseeing failed to provide hourly, non-exempt employees overtime wages for
overtime work performed. The lawsuit seeks recovery of unpaid overtime wages, plus penalties
and other damages. CitySightseeing vigorously denies the claims asserted in the lawsuit. The
lawsuit has been litigated aggressively, including taking the depositions of the class
representatives and all key CitySightseeing administrative personnel, the production and review
of thousands of documents, and the research and briefing of numerous legal issues. If this
lawsuit is not settled now, a trial of the action will be necessary, the outcome of which is far
from certain both in terms of CitySightseeing’s purported liability and the amount of damages
and penalties sought by plaintiffs. It is possible that, if an adverse ruling were entered against
CitySightseeing, an appeal would be taken which would result in lengthy delays before the
claims were resolved. In addition, continuing this litigation would place an undue financial
burden on CitySightseeing that could jeopardize its continuing viability.

In order to avoid the continued uncertainty, delay and expense of further litigation, Class
Counsel and counsel for CitySightseeing have agreed to this settlement on terms which are
considered by them to be a fair compromise of the risks of litigation and to be reasonable,
adequate and in the best interest of the Class.

The parties have submitted the terms of the proposed settlement to the Court for preliminary
approval. After a preliminary review of the proposed settlement, the Court has directed that the
members of the Class be given this notice to inform them of the proposed settlement and of the
procedures the Court will follow to make the final determination whether the settlement is fair,
reasonable and adequate.

| "5: Has:the Court decided who is right? : ]

Although the parties have reached a settlement, the Court hasn’t decided or expressed any
opinion whether CitySightseeing or Plaintiffs are correct.(

J L

SETTLEMENT BENEFITS — WHAT YOU GET

[6. Wihat-are the -basic'terms‘of the. settlement?

The full and precise terms of the proposed settlement are contained in the “Stipulation
and Agreement re Settlement and Release” filed with the Court on July 11, 2014. This Notice is
intended as a summary only. More detailed information concerning the matters discussed in this
Notice may be obtained from the pleadings, orders, Stipulation and Agreement re Settlement and
Release and other documents filed in this action, all of which may be inspected free of charge
during regular business hours at the office of the Court Clerk, San Francisco Superior Court, 400
McAllister Street, Room 103, San Francisco, CA 94102.

The parties have agreed to settle the lawsuit, and the settlement has received preliminary
approval from the Court. The settlement provides for the compromise and settlement of all
claims and causes of action made or which could have been made in this action. In summary,
the settlement provides for CitySightseeing to pay a certain amount of money, called the
“Settlement Sum.”

The total Settlement Sum is $300,000, which will go toward (i) Class Counsel’s
attorney’s fees incurred in prosecuting this action, in an amount to be approved by the Court but
which will not exceed $100,000; (ii) costs incurred in this action in an amount to be approved by
the Court but which will not exceed $40,000, (ii) an incentive award to Class Representatives in
an amount to be approved by the Court, but which will not exceed $4,000 for each of the five
class representatives (for a total of $20,000) and the costs of administering this settlement which
is estimated to be approximately $35,000. The remaining amount, anticipated to be
approximately $120,000 will be distributed to Class Members and applied to each Member’s
share of payroll taxes. Disbursements to Class Counsel for attorney fees and costs will be made
after scheduled payments to class members have been made. Each Class Representative
(Salvatore Mineo, Gina Schembari, Phillip T Nails, Benjamin Duax, and David Hayward) shall
be paid a Class Representative Payment in an amount not to exceed $4,000.00. Each class
representative participated in this case by meeting with Plaintiffs’ counsel, responding to
extensive written discovery and preparing for and attending their depositions. The Cross-
Defendant Class Representatives also had to defend against the Cross-Complaints filed by the
Cross-Complainant CitySightseeing. In addition, the Class Representatives participated in
mediation activities and settlement negotiations. The Class Representatives also facilitated
communications with other putative class members. For their additional service and
participation in this case each representative with receive an additional $4,000.00 from the
settlement funds.

Defendant will pay the total non-reversionary sum of $300,000.00, which includes all
payments to the Class Members, Class Representative enhancements, attorneys’ fees and costs
and third-party administration costs. The Settlement Payment shall not include Defendant’s
share of the payroll taxes on any amounts allocated to wages, for which Defendant shall be
solely responsible in addition to the Settlement Payment.

The $300,000 Settlement Sum will be paid (or have already been paid) by CitySightseeing
in five separate installments in the amounts and on the dates set forth below.

4$230,000 has been deposited into a trust account and the remainder will be deposited as
follows: June 1, 2015: $40,000; August 1, 2015: $30,000.

Payments to you and other class members from these installments will be made as set
forth below in the Settlement Allocation Plan.

Class members will receive payments prior to Class Counsel reimbursement for expenses
and payment of attorney fees.

The amount of money each class member receives depends on (i) how much the Court
awards Class Counsel in attorney’s fees and costs; (ii) whether and how much the Court awards
to the Class Representative and (iii) the actual costs of administering the settlement.

[7 What happe ; ent is not approved by the Court? |
If the Court does not approve the settlement at the Fairness Hearing, you will not be
entitled to your payment, but you will continue to be a class member and the lawsuit will proceed

as if this settlement had never been reached.

How TO PARTICIPATE IN THE SETTLEMENT

[B. How do you get a payn

If you wish to r