Preview
Mia Farber (State Bar N0. 13 1467)
Adam Y. Siegel (State Bar N0. 238568) Elefirffilcafly
JACKSON LEWIS PHC by Supermr Court of California, County nl'San Mate:
725 South Figueroa Street, Suite 2500
Los Angeles,
Telephone:
Facsimile:
CA 90017
2 1 3 689.0404
213.689.0430
33—15%
0N 3/1 3/2020
.
sh
E-mail:
QONUI-bUJN
Mia.Farber@iacksonlewis.com
Adam.Siegel@iacksonlewis.com
Dylan B. Carp (SBN 196846)
Scott P. Jang (State Bar No. 260191)
Mariko Mae Ashley (State Bar N0. 3 1 1897)
JACKSON LEWIS P.C.
50 California Street, 9th Floor
San Francisco, CA 941 1 1
Telephone: 415.394.9400
Facsimile: 415.394.9401
10 E-mail: Dylan.Carp@iacksonlewis.com
Scott.Jang@iacksonlewis.com
11 Mariko.Ashlev@iacksonlewis.com
12 Attorneys for Defendant
ADECCO USA INC.
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14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
15 COUNTY OF SAN MATEO
16
17 RACHEL MONIZ, on behalf of the State of Case No. 17CIV01736
California and aggrieved employees,
18 [Assigned to the Hon. Marie S. Weiner for
Plaintiff, A11 Purposes]
19
V. DECLARATION OF DYLAN B. CARP IN
20 SUPPORT OF DEFENDANT ADECCO
ADECCO USA, INC, and DOES 1-50, USA, INC.’S OPPOSITION T0 PAOLA
21 inclusive, CORREA AND BAKER CURTIS &
SCHWARTZ’S THIRD MOTION TO
22 Defendants. VACATE JUDGMENT PURSUANT TO
CCP §§ 659(a)(2) AND 663A(A)(2)
23
Date: April 9, 2020
24 Time: 11:00 am.
Dept: 2
25
Complaint Filed: April 18, 2017
26 Trial Date: Vacated
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1 Case No. 17CIV01736
DECL. OF DYLAN B. CARP ISO ADECCO’S OPP. TO CORREA & BCS’S
THIRD MOTION TO VACATE JUDGMENT
DECLARATION OF DYLAN B. CARP
I, Dylan B. Carp, declare as follows:
1. I am a member of the State Bar of California and a Principal of the law firm of
Jackson Lewis P.C., attorneys of record for Defendant Adecco USA, Inc. (“Adecco”) in the above
captioned lawsuit (“this Action”). If called as a Witness, Iwould and could competently testify t0
all facts set forth below.
2. On May 13, 2019, Plaintiff Rachel Moniz (“Moniz”) and Adecco (together, “the
Parties”) submitted a joint motion to approve the PAGA Settlement in this matter. Attached as
Exhibit 1 is a true and correct copy 0f the May 13, 2019 Settlement Agreement.
10 3. On May 24, 2019, this Court held a settlement hearing regarding the PAGA
11 Settlement. Attached as Exhibit 2 is a true and correct copy 0f the May 24, 2019 hearing
12 transcript.
13 4. On June 3, 2019, the Parties entered into a revised Settlement Agreement in this
14 matter, including slight clarifications requested by and discussed explicitly With the Court.
15 Attached as Exhibit 3 isa true and correct copy of the June 3, 2019 Settlement Agreement.
16 5. The Hearing on Approval of the Settlement was held 0n June 11, 2019. Attached
17 as Exhibit 4 is a true and correct copy 0f the Court’s June 11, 2019 Minute Order finding that the
18 settlement was “fair, adequate, and reasonable.” Attached as Exhibit 5 is a true and correct copy
19 0f the June 11, 2019 hearing transcript.
20 6. On July 3, 2019, this Court entered a Judgment and Order Approving the PAGA
21 Settlement, which found that the Settlement was “fair, adequate, reasonable, and consistent with
22 the purposes 0f PAGA. Attached as Exhibit 6 is a true and correct copy of the Court’s July 3,
23 2019 Judgment and Order Approving PAGA Settlement.
24 7. On October 2, 2019, Adecco filed its Opposition to denied Intervenor Correa
25 (“Correa”) and Baker, Curtis & Schwartz, P.C.’s (“BCS”) Motion for Attorney Fees and Incentive
26 Payment. Attached as Exhibit 7 is a true and correct copy of Adecco’s October 2, 2019
27 Opposition t0 Motion for Attorney Fees and Incentive Payment.
28 8. On October 7, 2019, Adecco filed its Reply t0 the LWDA’s Comments and
2 Case N0. 17CIV01736
DECL. OF DYLAN B. CARP ISO ADECCO’S OPP. TO CORREA & BCS’S
THIRD MOTION TO VACATE JUDGMENT
Objections. Attached as Exhibit 8 is a true and correct copy of Adecco’s October 7, 2019 Reply
to LWDA Comments and Obj ections.
9. On November 22, 2019, this Court issued an order approving the PAGA
Settlement. Attached as Exhibit 9 is a true and correct copy 0f the Court’s November 22, 2019
Order Approving PAGA Settlement.
10. On January 15, 2020, this Court entered an order denying Correa and BCS ’s motion
for attorney fees and incentive payment. Attached as Exhibit 10 is a true and correct copy of the
Court’s January 15, 2020 Judgment.
11. On January 21, 2020, Correa and BCS filed a notice 0f appeal, a true and correct
10 copy ofwhich isattached hereto as Exhibit 11. On February 13, 2020, Adecco moved to dismiss
11 Correa and BCS’s appeal. Attached as Exhibit 12 istrue and correct copy of Adecco’s February
12 13, 2020 Motion to Dismiss Appeal. Attached as Exhibit 13 isa true and correct copy of Correa
13 and BCS’s February 20, 2020 Opposition t0 Adecco’s Motion to Dismiss. Attached as Exhibit
14 14 is true and correct copy 0f the Court 0f Appeals’ Order summarily denying Adecco’s Motion
15 to Dismiss Appeal.
16 12. On February 10, 2020, this Court entered another Judgment approving the PAGA
17 Settlement. Attached as Exhibit 15 isa true and correct copy of this Court’s February 10, 2020
18 Judgment.
19 13. TWO settlements have been approved by the court in Doe v. Google, San Francisco
20 Superior Court Case N0. CGC-16-556034.
21 14. On May 3 1 ,
2018, the Doe plaintiffs reached a settlement with Defendants Google,
22 Inc. and Alphabet, Inc. Attached as Exhibit 16 is a true and correct copy 0f the Further
23 Declaration 0f Chris Baker In Support 0f Joint Motion for Approval 0f PAGA Settlement
24 confirming that the LWDA received notice 0fthe settlement on June 4, 20 1 8. Attached as Exhibit
25 17 is a true and correct copy 0f the June 25, 2018 Order Approving Settlement, which includes
26 the May 31, 2018 Settlement Agreement.
27 15. On December 19, 2018, also in Doe, Correa reached a settlement with Defendant
28 Adecco as t0 her “Adult Content Release Claims.” Attached as Exhibit 18 is the Stipulation
3 Case N0. 17CIV01736
DECL. OF DYLAN B. CARP ISO ADECCO’S OPP. TO CORREA & BCS’S
THIRD MOTION TO VACATE JUDGMENT
Regarding Settlement Agreement and Additional Supporting Papers Which includes notice t0 the
LWDA 0f that settlement 0n January 29, 2019. Attached as Exhibit 19 is the February 21, 2019
Order Approving PAGA Settlement, which includes the December 19, 2019 Settlement
Agreement.
I declare under penalty 0f perjury under the laws of the State 0f California that the
foregoing istrue and correct. Executed on March 13, 2020 in San Francisco, California.
/s/ Dylan B. Carp
DYLAN B. CARP
4821-0688-5559, v.2
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4 Case N0. 17CIV01736
DECL. OF DYLAN B. CARP ISO ADECCO’S OPP. TO CORREA & BCS’S
THIRD MOTION TO VACATE JUDGMENT
Exhibit 1
SETTLEMENT AGREEMENT
This Settlement Agreement ismade by and between: Rachel Moniz
(a) Plaintiff (“Plaintiff’),on
behalf 0f herself, other aggrieved employees, and the State of Califomia, on the one hand; and (b) Defendant
Adecco USA, Inc. (“Defendant”) on the other hand, subject to the approval of the Court in accordance with
Califomia Labor Code section 2699(l)(2), and subject to the following terms and conditions.
I. DEFINITIONS
Unless otherwise defined in this Agreement, the following terms used in thisAgreement shallhave
the meanings ascribed tothem as set forth below:
“Action” means the civil action titledRachel Aloniz v. Adecco USA, Inc, filed in the
Superior Court of the State of California, County of San Mateo, Case No. 17C1V01736.
“A greement,” “Settlement,” or “Settlement Agreement” means this Settlement Agreement.
“Complaint” means the operative Complaint filed in the Action.
“Court" means the Superior Court for the State 0f California, County 0f San Mateo.
“Covered Period” means the period of time from February 1, 2016 to the date the Court
grants approval of the Settlement.
“Defendant” means Adccco USA, Inc.
“Defendant’s Counsel” means the.law firm of Jackson Lewis RC.
“Final” means: (1) that the Settlement has been finally approved by the Court with I10
objections (including objections by Plaintiff 0rPlaintiff‘s Counsel as t0 the award 0f
incentive payments attorney’s fees,
01‘ which must be made within fiftaen (1 5)days 0f the
order or are otherwise waived); 0r (2) if there are objections, either (a) the California Court
0f Appeal has rendered a final judgment affirming the Court’s final approval without
material modification and the date for further appeal has passed without funher appeal; 0r
(b) the applicable date for seeking appellate review of the Court’s final approval of the
Settlement has passed without a timely appeal or request for review having been made.
“Order” means the Order Granting Approval of Settlement. The fianies will submit a
proposed Order in the form evidenced by Exhibit A t0 this Agreement for consideration by
the Court
“PAGA” means California’s Labor Code Private Attorneys General Act, Cal. Lab. Code §
2699, et seq.
“Parties” means Plaintiffand Defendant collectively.
“LWDA” means the California Labor and Workforce Development Agency.
“LWDA Payment” means the portion of the payment from the Net Settlement Amount t0
be paid 10 the LWDA under the Settlement Agreement.
“Net Settlement Amount” means the amount from the Total Settlement Amount that is
available for distribution for the LWDA Payment and for Settlement Shares t0 the PAGA
Settlement Members after deducting (1) Plaintist Counsel’s attorney’s fees and costs (the
amount 0f which is subj ect t0 Court approval); (2) the Settlement Administrator’s fees and
expenses (the amount of which is subject to Court approval); and (3) Plaintiff‘s Incentive
Payment (the amount ofwhich is subject to Court approval). The Net Settlement Amount
will be distributed to the LWDA and PA GA Settlement Members in payment of PAGA
penalties.
“PAGA Settlement Members” means current and former employees of Defendant who
worked asan Associate or Colleague in California at any point during the Covered Period.
“Plaintiff" means Plaintiff RachelMoniz.
“Plaintiff’sCounsel” means the law firm 0f Schneider Wallace CottrellKonecky Wotkyns
LLP.
“Released Claims” means any and allknown and unknown claims under the PAGA against
the Released Parties that were or could have been pled based 0n the factual allegations 0f
the Complaint, including but n01 limited to Plaintiff‘s allegation that Defendant unlawfully
prohibited current and former employees from: (1) disclosing certain information including
but not limited t0 salary, benefits, wages, identities 0f other employees, training and
operations methods, and office protocols and systems and programs and systems; (2)
discussing the wages of others, engaging in whistleblower activity, 0r disclosing or
discussing their working conditions. This includes, but is not limited to, claims for
Violation 0f California Labor Code sections 232, 232.5, 432.51 102.5, 1 197.5(k), and,2699
etseq, California Business and Professions section 17200 e!seq, 18 U.S.C. section 1833,
and 17 CFR 240.21F‘17.
“Released Parties” means Defendant and any ofits present and former parents, subsidiaries
and affiliated companies or entities,and theirrespective officers, directors, employees,
partners, shareholders and agents, as well as any other successors, assigns and legal
representatives and their related persons and entities.
“Settlement Administrator” means the third~party administrator selected by Plaintiff and
approved by the Court to administer this Settlement,
“Settlement Share” means the portion 0f the Net Settlement Amount allocable t0 each
PAGA Settlement Member as provided by this Agreement.
“Total Settlement Amount” means the totalamount t0be paid by Defendant asprovided
by this Agreement.
II. FACTUAL BACKGROUND
A. On April 18, 2017, Plaintiff filed this Action against Defendant, alleging inter alia that
Defendant’s confidentiality and non—disclosure provisions prohibited empon'ees from
disclosing their own wages, discussing the wages of others, engaging in whistleblowing
activity,and disclosing 0r discussing their working conditions in Violation of California
Labor Code sections 232, 1197.5(k), 232.5, 1102.5, and 432.5, California Business and
Professions section 17200 et seq, 18 U.S.C. section 1833, and 17 CFR 240.21F-17. As
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relief,Plaintiffseeks to recover civilpenalties under PAGA on behalf of herself, other
aggrieved employees, and the State of California.
Plaintiff submitted a letter to theLWDA on February 1, 2017, regarding the allegations
above and file a
Plaintiff‘s intention t0 LWDA elected to investigate
civil action unless the
the allegations on its own. The LWDA did not indicate an intention t0 investigate the
allegations on itsown within the applicable statutory time period.
The Parties participated in mediation With David Rotman, a highly respected mediator in
employment law, on Janumy 10, 2019, and January 21, 2019. Following the January 21
mediation, MI. Rotman made a mediator’s proposal, which the Parties accepted and which
serves as {he basis for this Agreement.
This Agreement represents a full compromise and settlement of highly disputed claims.
Nothing in thisAgreement is intended 0r will be construed as an admission by Defendant
that Plaintiff‘sclaims in the Action have merit or that Defendant has any liabilityto
Plaintiff orany of the PAGA Settlement Members. Nor is this Agreement an admission
by Plaintiff that Defendant’s defenses in the Action have merit.
III. SETTLEMENT TERMS AND CONDITIONS
A. Stipulation 0f Dismissal for Settlement. Subject to the terms 0f this Agreement, Plaintiff
will stipulate to the dismissal 0f this Action with prejudice.
Representation Regarding PAGA Settlement Members. Defendant represents that the
PA GA Settlement Mem bers consist 0f approximately 6 ,637 individuals, which Defendant
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represents are all 0f Defendants’ Califomia employees from Febmary 1, 2016 through
March 24, 2019.
Total Settlement Amount. The Total Settlement Amount is four million five—hundred
thousand dollars ($4,500,000). The Total Settlement Amount will cover: (a) all payments
to PAGA Settlement Members pursuant t0 the Settlement (described in Section III.G—H);
(b) theLWDA Payment set forth in Section IIIJ; (c) Plaintiffs attorneys’ fees, costs, and
expenses (which includes all such fees and costs incurred to date, as well as all such fees
and costs incurred in documenting the settlement, securing Court approval of the
Settlement including any and all motions related thereto, and obtaining a dismissal 0f the
claims encompassed by this Agreement) (described in Section 111E); (d) the Incentive
Payment to Plaintiff set fonh in Section 11LF; and (e) the Settlement Administrator’s fees
and expenses set forth in Section 111.1.
Additional Consideration. As additional consideration for this Settlement and as a direct
result 0f this Settlement, Defendant agrees to revise its Colleague Agreement and Associate
Agreement and related policies which allegedly limit employees from disclosing their own
salary,wages, benefits and related working conditions; and/or from discussing same with
others; and/or from engaging in whistleblowing activity. Defendant does not concede said
agreements and policies d0 s0, and this additional consideration is not in any way t0 be
construed as an admission by Defendant.
Attorneys’ Fees and Litigation Costs. Defendant will not oppose an application by
an amount that does not exceed 33% 0f the Total Settlement
Plaintiff for attorneys’ fees in
Amount ($1,500,000). Defendant will also not oppose an application by Plaintiff for up t0
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$45,000 in litigation costs. IRS Forms 1099 and state and local equivalents will be issued
t0 Plaintiff‘sCounsel for any awarded attomeys’ fees and costs. Plaintiff’s Counsel will
not seek, or be entitled10 any attorneys’ fees and/or expenses related to the claims and
allegations in this Action, Other than those specified in this Agreement. Plaintiff's counsel,
and no other counsel, were involved in the negotiations leading to this settlement and no
other counsel’s work contributed to the negotiation 0r crafting 0f this Agreement.
Plaintiff’s Counsel’s sole effofis, and no others’, helped t0 create,discover, increase and
preserve the PAGA Settlement Members recovery in this Action.
Incentive Payment. Plaintiffs Counsel will request, and Defendant will not oppose, an
incentive payment 10 Plaintiff from the Total Settlement Amount in an amount not to
exceed $20,000. This incentive payment shall be in addition to whatever payment Plaintiff
is otherwise entitled to as a PAGA Settlement Member. Plaintiff will be issued an IRS
Form 1099 and its stateand local equivalents for any incentive payment amount received
under the Settlement. Should the Court award less than $20,000 for the Incentive Paym ent,
Plaintiff agrees that (a)she will accept the Court’s ruling;and (b) an award 0f less than
$20,000 for the Incentive Payment does not serve as a basis for appeal or otherwise affect
the implementation of this Agreement per Section HLQ below.
Settlement Shares. Subject to the terms and conditions 0f this Agreement, each PAGA
Settlement Member will be allocated a Settlement Share from 25% 0f the Net Settlement
Amount; the remainder of the Net Settlement Amount shall be paid to the LWDA as part
of the LWDA Payment. The Settlement Share is intended t0 settle claims for PAGA civil
penalties. Accordingly, the payments t0 PAGA Settlement Members will not be reduced
by payroll tax withholding and deductions; instead, the Settlement Administrator will issue
t0 the PAGA Settlement Members IRS Form 1099s and their stateand local equivalents
with respect t0 the payments.
Distribution 0f Settlement Shares t0 PAGA Settlement Members. After deducting the
amounts for the LWDA Payment, the remainder 0f the Net Settlement Amount will be paid
as Settlement Shares to each PAGA Settlement Member. The portion 0f the Net Settlem ent
Amount available for distribution toPAGA Settlement Group Members (25% 0f the Net
Settlement Amount) will be divided as follows: $627,660.00, 0r 88% of the Net Settlement
Amount, will be paid to the Associates (with an estimated per—person payment 0f $10.27)
and $85,590, or 12% ofthe Net Settlement Amount (with an estimated per—person payment
0f $15792).
Additional Amounts For Additional Aggrieved Employees. The Parties agree that, in
exchange for the scope of the Released Claims extending from February 1, 2016 through
the date that the Parties” Settlement isapproved by the Court, Adecco will increase the
Total Settlement Amount by $41.08 per each additional Associate added to PAGA
Settlement Members and by $631.68 per each additional Colleague added to PAGA
Settlement Members (75% 0f which will g0 t0 the State of Califomia and 25% of which
will g0 10 the individual PAGA Settlement Member) (which is the pcr-person share 0f the
Total Settlement Amount based 0n the total number of existing aggrieved employees) for
each additional aggrieved employee that is employed between March 24, 201 9 and the date
that the Paflies’ Settlement is approved by the Court. The number 0f aggrieved employees
shall not increase following the Court’s approval 0f the Settlement Agreement.
Payments t0 Settlement Administrator. The Settlement Administrator will pay itself out
of the Total Settlement Amount its reasonable fees and expenses, as approved by the Couxt
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The Settlement Administrator’s reasonable fees and expenses shall not exceed
$100,000.00.
LWDA Payment. The Settlement Administrator will pay 75% of the Net Settlement
Amount t0 the LWDA as itsshale of the Settlement attributable to civil penaltiesunder
PAGA. If the Court approves an LWDA Payment 0f less than 75% of the Net Settlement,
the remainder will be retained in the Net Settlement Amount for distribution to thePAGA
Settlement Members.
Appointment 0f Settlement Administrator. In connection With a Joint Motion t0 the
Coult for an Order Approving thisAgreement (“Joint Motion”), the Paflies Will propose a
Settlement Administrator t0 distribute Settlement Shares and other payments due under the
Settlement; and otherwise administer the Settlement. In the event that the Settlement is not
approved, each Pafiy will be reasonable for paying fifty (50%) percent 0f the Settlement
Administrator’s reasonable fees incurred as ofthat time. The Settlement Administrator, as
a condition of appointment, will agree t0 be bound by this Agreement with respect to the
performance ofits duties and its compensation. The Settlement Administrator’s duties will
include preparing, printing, and mailing the letter t0 the PAGA Settlement Members;
conducting a National Change of Address search and using Accurint and other reasonable
and cost—cffcctive skip trace methods to locate any PAGA Settlement Member whose letter
or Settlement Share was returned by the U.S. Postal Service asnon—deliverable, and re-
mailing the letter and Settlement Share to the PAGA Settlement Member’s new address;
issuing the checks to effectuatethe payments due under the Settlement; and otherwise
administen'ng the Settlement pursuant to this Agreement. The Settlement Administrator’s
reasonable fees and expenses, including the cost 0f printing and mailing the letter,will be
paid out of the Total Settlement Amount.
Procedure for Approving Settlement
1. Motion foran Order Approving the Settlement.
a. The Paflies Will cooperate in seeking approval 0fthe Settlement, including
by drafting and filing the Joint Motion. The Parties further agree to fully
cooperate in the drafting and/or filing of any further documents reasonably
necessary t0 be prepared 0r filed and shall take allsteps thatmay be
requested by the Court relating 10 the approval and implementation of the
Settlement. Plaintiff’sCounsel shall draft the JointMotion and provide
the draft to Defendant’s Counsel for review and revision three (3)
at least
business days prior t0 the filing of the Joint Motion, Plaintiff‘s Counsel
shall submit the Settlement Agreement and motion papers to the LWDA
n0 later than three (3) business days after the Settlement Agreement and
motion papers are filed with the Court.
b. At the hearing on the Joint Motion, the Parties will jointly appear, support
the granting 0f the motion, and submit an order granting the motion in the
form evidenced by Exhibit A to this Ag‘eement.
c. The Parties will jointly file the Joint Motion. If theCourt does not grant
the application for approval and issue an order approving the Settlement,
under the specific terms requested, thc Parties agree to meet and confer to
address the Court’s concerns in good faith and determine whether
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resolution of the claims encompassed by the Settlement can be obtained in
a manner consistent with the Coufi’s concerns.
d. If theCourt does not grant approval of the Settlement, 0r if the Court’s
final approval 0f the Settlement is reversed 0r materially modified 0n
appellate review, then the Settlement will become null and void. A
modification of amounts payable in attorneys’ fees or expenses, amounts
payable as part 0fthe Plaintiff's Incentive Payment, or amounts paid to the
Settlement Administrator for its fees and expenses shall not be deemed a
material modification 0f the Settlement.
N0 Right to Opt Out. The Parties agree that there is no statutory right for any PAGA
Settlement Member t0 opt out 0r otherwise exclude himself or herself from the Settlement.
Notice and Payment of Settlement Shares to PAGA Settlement Members. After the
Court enters itsorder granting the Joint Motion: every PAGA Settlement Member will be
provided with a letter concerning the Settlement (see Exhibit A) and payment 0f the PAGA
Settlement Member’s Settlement Share.
1. Consistent with the timeframes set forth in Section HLQ, the Settlement
Administrator Will send each PAGA Settlement Member the letterand and
payment of the PAGA Settlement Member’s Settlement Share. The Settlement
Administrator will mail the lettersand Settlement Share payments to allidentified
PAGA Settlement Members, using the mailing address information provided by
Defendant, unless modified by any updated address information that the
Settlement Administrator obtains during the course of administration of the
Settlement.
In the event 0f returned 0r non—deliverable letters and Settlement Share payments,
the Settlement Administrator will make reasonable efforts t0 locate PAGA
Settlement Members and rc-send the lettersand Settlement Share payments. The
Settlement Administrator will promptly, and not later than fifteen (15) calendar
days from receipt 0f the returned packet and payment, search for a more current
address forthe PAGA Settlement Member using Accurint and other reasonable
and cost—effective skip trace methods, and re—mai] the letter and Settlement Share
payment t0 the PAGA Settlement Member. The Settlement Administrator will use
the PAGA Settlement Members‘ data and othenvise work with Defendant to find
a more current address. The Settlement Administrator will be responsible for
taking reasonable steps, consistent with its agreed—upon job parameters, court
orders, and fee, as agreed t0 with Plaintiff’s Counsel and according t0 the following
deadlines, t0 trace the mailing address of anyPAGA Settlement Member for whom
a letter0r Settlement Share payment is returned by the U.S. Postal Service as
undeliverable. These reasonable steps will include, at a minimum, the tracking of
all undelivered mail; performing address searches for allmail returned without a
forwarding address; and promptly re—mailing t0 PAGA Settlement Members for
whom new addresses are found. If theletterand Settlement Share payment is re—
mailed, the Settlement Administrator will note for its own records and notify
Plaintiffs Counsel and Defendant’s Counsel of the dateand address 0f each such
re—mailing as part 0f a weekly status report provided t0 the Parties. Plaintiffs
Counsel and Defendant’s Counsel will be entitled to receive from the Settlement
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Administrator any updated address infomlation about a PAGA Settlement Member
as the Settlement Administrator obtains such information.
Submission 0f Order. Plaintiff shall submit a copy 0f the order providing for or denying
an award 0f civil penalties t0 the LWDA within ten (10) calendar days after entry 0f the
dismissal and/or Order, in compliance with Section 2699(l)(3) 0f the California Labor
Code. If Plaintiff fails to satisfy this condition in strict compliance with Section 2699(l)(3)
of the California Labor Code, the Settlem ent shall be voidable at Defendant’s option.
Waiver 0f Right t0 Appeal. Provided that the Court’s approval of thisSettlement is
consistent with the material terms of this Agreement, Plaintiff,Defendant, and their
respective counsel hereby waive any and all rightsto appeal the final approval of the
Seiflement, and the Order therefore will become non—appealable at the time it is entered.
If, for any reason an appeal is taken, the time for consummating the Settlement (including
making payments under the Settlement) will be suspended until such time as the appeal is
finally resolved and the Order becomes Final, as defined in this Agreement.
Timing of Settlement Payments and Receipt 0f Contact Information. Within five
(5) calendar days after the Settlement becomes Final, as defined in thisAgreement, the
Settlement Administrator will provide Defendant with wire transfer information. Within
ten (10) calendar days afterthe next payroll cycle after the Settlement becomes Final,
Defendant will transfer the Total Settlement Amount t0 the Settlement Administrator via
wire transfer. The amount of the Total Settlement Amount attributable to Plaintiff’s
counsel’s attorneys’ fees and costs as well as the Incentive Payment will be disbursed to
Plaintiff’s counsel immediately. Also, within ten (10) calendar days after the next payroll
cycle of Defendant following Court approval,, Defendant will provide t0 the Settlement
Administrator the names, last known addresses and telephone numbers, and Social Security
numbers of all PAGA Settlement Group Members. This information will remain
confidential and will not be disclosed t0 anyone, except in order t0 carry out the reasonable
efforts described in Section III.N.3, or pursuant to Defendant’s express written
authorization 0r by order 0f the Coufi. Payment shall be made to an interest bearing
account A11 interest accrued shall bc payable t0 the State0f California and the Aggieved
Employees and added t0 the Net Settlement Amount. Payment shallbe disbursed on a date
to be detennined by the Court.
Uncashed Settlement Share Checks‘ A PAGA Settlement Member must receive 0r cash
his 0r her Settlement Share payment 0r check within 180 calendar
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Mia Farber (State Bar N0. 13 1467) Adam Y. Siegel (State Bar N0. 238568) Elefirffilcafly JACKSON LEWIS PHC by Supermr Court of California, County nl'San Mate: 725 South Figueroa Street, Suite 2500 Los Angeles, Telephone: Facsimile: CA 90017 2 1 3 689.0404 213.689.0430 33—15% 0N 3/1 3/2020 . sh E-mail: QONUI-bUJN Mia.Farber@iacksonlewis.com Adam.Siegel@iacksonlewis.com Dylan B. Carp (SBN 196846) Scott P. Jang (State Bar No. 260191) Mariko Mae Ashley (State Bar N0. 3 1 1897) JACKSON LEWIS P.C. 50 California Street, 9th Floor San Francisco, CA 941 1 1 Telephone: 415.394.9400 Facsimile: 415.394.9401 10 E-mail: Dylan.Carp@iacksonlewis.com Scott.Jang@iacksonlewis.com 11 Mariko.Ashlev@iacksonlewis.com 12 Attorneys for Defendant ADECCO USA INC. 13 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF SAN MATEO 16 17 RACHEL MONIZ, on behalf of the State of Case No. 17CIV01736 California and aggrieved employees, 18 [Assigned to the Hon. Marie S. Weiner for Plaintiff, A11 Purposes] 19 V. DECLARATION OF DYLAN B. CARP IN 20 SUPPORT OF DEFENDANT ADECCO ADECCO USA, INC, and DOES 1-50, USA, INC.’S OPPOSITION T0 PAOLA 21 inclusive, CORREA AND BAKER CURTIS & SCHWARTZ’S THIRD MOTION TO 22 Defendants. VACATE JUDGMENT PURSUANT TO CCP §§ 659(a)(2) AND 663A(A)(2) 23 Date: April 9, 2020 24 Time: 11:00 am. Dept: 2 25 Complaint Filed: April 18, 2017 26 Trial Date: Vacated 27 28 1 Case No. 17CIV01736 DECL. OF DYLAN B. CARP ISO ADECCO’S OPP. TO CORREA & BCS’S THIRD MOTION TO VACATE JUDGMENT DECLARATION OF DYLAN B. CARP I, Dylan B. Carp, declare as follows: 1. I am a member of the State Bar of California and a Principal of the law firm of Jackson Lewis P.C., attorneys of record for Defendant Adecco USA, Inc. (“Adecco”) in the above captioned lawsuit (“this Action”). If called as a Witness, Iwould and could competently testify t0 all facts set forth below. 2. On May 13, 2019, Plaintiff Rachel Moniz (“Moniz”) and Adecco (together, “the Parties”) submitted a joint motion to approve the PAGA Settlement in this matter. Attached as Exhibit 1 is a true and correct copy 0f the May 13, 2019 Settlement Agreement. 10 3. On May 24, 2019, this Court held a settlement hearing regarding the PAGA 11 Settlement. Attached as Exhibit 2 is a true and correct copy 0f the May 24, 2019 hearing 12 transcript. 13 4. On June 3, 2019, the Parties entered into a revised Settlement Agreement in this 14 matter, including slight clarifications requested by and discussed explicitly With the Court. 15 Attached as Exhibit 3 isa true and correct copy of the June 3, 2019 Settlement Agreement. 16 5. The Hearing on Approval of the Settlement was held 0n June 11, 2019. Attached 17 as Exhibit 4 is a true and correct copy 0f the Court’s June 11, 2019 Minute Order finding that the 18 settlement was “fair, adequate, and reasonable.” Attached as Exhibit 5 is a true and correct copy 19 0f the June 11, 2019 hearing transcript. 20 6. On July 3, 2019, this Court entered a Judgment and Order Approving the PAGA 21 Settlement, which found that the Settlement was “fair, adequate, reasonable, and consistent with 22 the purposes 0f PAGA. Attached as Exhibit 6 is a true and correct copy of the Court’s July 3, 23 2019 Judgment and Order Approving PAGA Settlement. 24 7. On October 2, 2019, Adecco filed its Opposition to denied Intervenor Correa 25 (“Correa”) and Baker, Curtis & Schwartz, P.C.’s (“BCS”) Motion for Attorney Fees and Incentive 26 Payment. Attached as Exhibit 7 is a true and correct copy of Adecco’s October 2, 2019 27 Opposition t0 Motion for Attorney Fees and Incentive Payment. 28 8. On October 7, 2019, Adecco filed its Reply t0 the LWDA’s Comments and 2 Case N0. 17CIV01736 DECL. OF DYLAN B. CARP ISO ADECCO’S OPP. TO CORREA & BCS’S THIRD MOTION TO VACATE JUDGMENT Objections. Attached as Exhibit 8 is a true and correct copy of Adecco’s October 7, 2019 Reply to LWDA Comments and Obj ections. 9. On November 22, 2019, this Court issued an order approving the PAGA Settlement. Attached as Exhibit 9 is a true and correct copy 0f the Court’s November 22, 2019 Order Approving PAGA Settlement. 10. On January 15, 2020, this Court entered an order denying Correa and BCS ’s motion for attorney fees and incentive payment. Attached as Exhibit 10 is a true and correct copy of the Court’s January 15, 2020 Judgment. 11. On January 21, 2020, Correa and BCS filed a notice 0f appeal, a true and correct 10 copy ofwhich isattached hereto as Exhibit 11. On February 13, 2020, Adecco moved to dismiss 11 Correa and BCS’s appeal. Attached as Exhibit 12 istrue and correct copy of Adecco’s February 12 13, 2020 Motion to Dismiss Appeal. Attached as Exhibit 13 isa true and correct copy of Correa 13 and BCS’s February 20, 2020 Opposition t0 Adecco’s Motion to Dismiss. Attached as Exhibit 14 14 is true and correct copy 0f the Court 0f Appeals’ Order summarily denying Adecco’s Motion 15 to Dismiss Appeal. 16 12. On February 10, 2020, this Court entered another Judgment approving the PAGA 17 Settlement. Attached as Exhibit 15 isa true and correct copy of this Court’s February 10, 2020 18 Judgment. 19 13. TWO settlements have been approved by the court in Doe v. Google, San Francisco 20 Superior Court Case N0. CGC-16-556034. 21 14. On May 3 1 , 2018, the Doe plaintiffs reached a settlement with Defendants Google, 22 Inc. and Alphabet, Inc. Attached as Exhibit 16 is a true and correct copy 0f the Further 23 Declaration 0f Chris Baker In Support 0f Joint Motion for Approval 0f PAGA Settlement 24 confirming that the LWDA received notice 0fthe settlement on June 4, 20 1 8. Attached as Exhibit 25 17 is a true and correct copy 0f the June 25, 2018 Order Approving Settlement, which includes 26 the May 31, 2018 Settlement Agreement. 27 15. On December 19, 2018, also in Doe, Correa reached a settlement with Defendant 28 Adecco as t0 her “Adult Content Release Claims.” Attached as Exhibit 18 is the Stipulation 3 Case N0. 17CIV01736 DECL. OF DYLAN B. CARP ISO ADECCO’S OPP. TO CORREA & BCS’S THIRD MOTION TO VACATE JUDGMENT Regarding Settlement Agreement and Additional Supporting Papers Which includes notice t0 the LWDA 0f that settlement 0n January 29, 2019. Attached as Exhibit 19 is the February 21, 2019 Order Approving PAGA Settlement, which includes the December 19, 2019 Settlement Agreement. I declare under penalty 0f perjury under the laws of the State 0f California that the foregoing istrue and correct. Executed on March 13, 2020 in San Francisco, California. /s/ Dylan B. Carp DYLAN B. CARP 4821-0688-5559, v.2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case N0. 17CIV01736 DECL. OF DYLAN B. CARP ISO ADECCO’S OPP. TO CORREA & BCS’S THIRD MOTION TO VACATE JUDGMENT Exhibit 1 SETTLEMENT AGREEMENT This Settlement Agreement ismade by and between: Rachel Moniz (a) Plaintiff (“Plaintiff’),on behalf 0f herself, other aggrieved employees, and the State of Califomia, on the one hand; and (b) Defendant Adecco USA, Inc. (“Defendant”) on the other hand, subject to the approval of the Court in accordance with Califomia Labor Code section 2699(l)(2), and subject to the following terms and conditions. I. DEFINITIONS Unless otherwise defined in this Agreement, the following terms used in thisAgreement shallhave the meanings ascribed tothem as set forth below: “Action” means the civil action titledRachel Aloniz v. Adecco USA, Inc, filed in the Superior Court of the State of California, County of San Mateo, Case No. 17C1V01736. “A greement,” “Settlement,” or “Settlement Agreement” means this Settlement Agreement. “Complaint” means the operative Complaint filed in the Action. “Court" means the Superior Court for the State 0f California, County 0f San Mateo. “Covered Period” means the period of time from February 1, 2016 to the date the Court grants approval of the Settlement. “Defendant” means Adccco USA, Inc. “Defendant’s Counsel” means the.law firm of Jackson Lewis RC. “Final” means: (1) that the Settlement has been finally approved by the Court with I10 objections (including objections by Plaintiff 0rPlaintiff‘s Counsel as t0 the award 0f incentive payments attorney’s fees, 01‘ which must be made within fiftaen (1 5)days 0f the order or are otherwise waived); 0r (2) if there are objections, either (a) the California Court 0f Appeal has rendered a final judgment affirming the Court’s final approval without material modification and the date for further appeal has passed without funher appeal; 0r (b) the applicable date for seeking appellate review of the Court’s final approval of the Settlement has passed without a timely appeal or request for review having been made. “Order” means the Order Granting Approval of Settlement. The fianies will submit a proposed Order in the form evidenced by Exhibit A t0 this Agreement for consideration by the Court “PAGA” means California’s Labor Code Private Attorneys General Act, Cal. Lab. Code § 2699, et seq. “Parties” means Plaintiffand Defendant collectively. “LWDA” means the California Labor and Workforce Development Agency. “LWDA Payment” means the portion of the payment from the Net Settlement Amount t0 be paid 10 the LWDA under the Settlement Agreement. “Net Settlement Amount” means the amount from the Total Settlement Amount that is available for distribution for the LWDA Payment and for Settlement Shares t0 the PAGA Settlement Members after deducting (1) Plaintist Counsel’s attorney’s fees and costs (the amount 0f which is subj ect t0 Court approval); (2) the Settlement Administrator’s fees and expenses (the amount of which is subject to Court approval); and (3) Plaintiff‘s Incentive Payment (the amount ofwhich is subject to Court approval). The Net Settlement Amount will be distributed to the LWDA and PA GA Settlement Members in payment of PAGA penalties. “PAGA Settlement Members” means current and former employees of Defendant who worked asan Associate or Colleague in California at any point during the Covered Period. “Plaintiff" means Plaintiff RachelMoniz. “Plaintiff’sCounsel” means the law firm 0f Schneider Wallace CottrellKonecky Wotkyns LLP. “Released Claims” means any and allknown and unknown claims under the PAGA against the Released Parties that were or could have been pled based 0n the factual allegations 0f the Complaint, including but n01 limited to Plaintiff‘s allegation that Defendant unlawfully prohibited current and former employees from: (1) disclosing certain information including but not limited t0 salary, benefits, wages, identities 0f other employees, training and operations methods, and office protocols and systems and programs and systems; (2) discussing the wages of others, engaging in whistleblower activity, 0r disclosing or discussing their working conditions. This includes, but is not limited to, claims for Violation 0f California Labor Code sections 232, 232.5, 432.51 102.5, 1 197.5(k), and,2699 etseq, California Business and Professions section 17200 e!seq, 18 U.S.C. section 1833, and 17 CFR 240.21F‘17. “Released Parties” means Defendant and any ofits present and former parents, subsidiaries and affiliated companies or entities,and theirrespective officers, directors, employees, partners, shareholders and agents, as well as any other successors, assigns and legal representatives and their related persons and entities. “Settlement Administrator” means the third~party administrator selected by Plaintiff and approved by the Court to administer this Settlement, “Settlement Share” means the portion 0f the Net Settlement Amount allocable t0 each PAGA Settlement Member as provided by this Agreement. “Total Settlement Amount” means the totalamount t0be paid by Defendant asprovided by this Agreement. II. FACTUAL BACKGROUND A. On April 18, 2017, Plaintiff filed this Action against Defendant, alleging inter alia that Defendant’s confidentiality and non—disclosure provisions prohibited empon'ees from disclosing their own wages, discussing the wages of others, engaging in whistleblowing activity,and disclosing 0r discussing their working conditions in Violation of California Labor Code sections 232, 1197.5(k), 232.5, 1102.5, and 432.5, California Business and Professions section 17200 et seq, 18 U.S.C. section 1833, and 17 CFR 240.21F-17. As 20f12 relief,Plaintiffseeks to recover civilpenalties under PAGA on behalf of herself, other aggrieved employees, and the State of California. Plaintiff submitted a letter to theLWDA on February 1, 2017, regarding the allegations above and file a Plaintiff‘s intention t0 LWDA elected to investigate civil action unless the the allegations on its own. The LWDA did not indicate an intention t0 investigate the allegations on itsown within the applicable statutory time period. The Parties participated in mediation With David Rotman, a highly respected mediator in employment law, on Janumy 10, 2019, and January 21, 2019. Following the January 21 mediation, MI. Rotman made a mediator’s proposal, which the Parties accepted and which serves as {he basis for this Agreement. This Agreement represents a full compromise and settlement of highly disputed claims. Nothing in thisAgreement is intended 0r will be construed as an admission by Defendant that Plaintiff‘sclaims in the Action have merit or that Defendant has any liabilityto Plaintiff orany of the PAGA Settlement Members. Nor is this Agreement an admission by Plaintiff that Defendant’s defenses in the Action have merit. III. SETTLEMENT TERMS AND CONDITIONS A. Stipulation 0f Dismissal for Settlement. Subject to the terms 0f this Agreement, Plaintiff will stipulate to the dismissal 0f this Action with prejudice. Representation Regarding PAGA Settlement Members. Defendant represents that the PA GA Settlement Mem bers consist 0f approximately 6 ,637 individuals, which Defendant 'l represents are all 0f Defendants’ Califomia employees from Febmary 1, 2016 through March 24, 2019. Total Settlement Amount. The Total Settlement Amount is four million five—hundred thousand dollars ($4,500,000). The Total Settlement Amount will cover: (a) all payments to PAGA Settlement Members pursuant t0 the Settlement (described in Section III.G—H); (b) theLWDA Payment set forth in Section IIIJ; (c) Plaintiffs attorneys’ fees, costs, and expenses (which includes all such fees and costs incurred to date, as well as all such fees and costs incurred in documenting the settlement, securing Court approval of the Settlement including any and all motions related thereto, and obtaining a dismissal 0f the claims encompassed by this Agreement) (described in Section 111E); (d) the Incentive Payment to Plaintiff set fonh in Section 11LF; and (e) the Settlement Administrator’s fees and expenses set forth in Section 111.1. Additional Consideration. As additional consideration for this Settlement and as a direct result 0f this Settlement, Defendant agrees to revise its Colleague Agreement and Associate Agreement and related policies which allegedly limit employees from disclosing their own salary,wages, benefits and related working conditions; and/or from discussing same with others; and/or from engaging in whistleblowing activity. Defendant does not concede said agreements and policies d0 s0, and this additional consideration is not in any way t0 be construed as an admission by Defendant. Attorneys’ Fees and Litigation Costs. Defendant will not oppose an application by an amount that does not exceed 33% 0f the Total Settlement Plaintiff for attorneys’ fees in Amount ($1,500,000). Defendant will also not oppose an application by Plaintiff for up t0 30f12 $45,000 in litigation costs. IRS Forms 1099 and state and local equivalents will be issued t0 Plaintiff‘sCounsel for any awarded attomeys’ fees and costs. Plaintiff’s Counsel will not seek, or be entitled10 any attorneys’ fees and/or expenses related to the claims and allegations in this Action, Other than those specified in this Agreement. Plaintiff's counsel, and no other counsel, were involved in the negotiations leading to this settlement and no other counsel’s work contributed to the negotiation 0r crafting 0f this Agreement. Plaintiff’s Counsel’s sole effofis, and no others’, helped t0 create,discover, increase and preserve the PAGA Settlement Members recovery in this Action. Incentive Payment. Plaintiffs Counsel will request, and Defendant will not oppose, an incentive payment 10 Plaintiff from the Total Settlement Amount in an amount not to exceed $20,000. This incentive payment shall be in addition to whatever payment Plaintiff is otherwise entitled to as a PAGA Settlement Member. Plaintiff will be issued an IRS Form 1099 and its stateand local equivalents for any incentive payment amount received under the Settlement. Should the Court award less than $20,000 for the Incentive Paym ent, Plaintiff agrees that (a)she will accept the Court’s ruling;and (b) an award 0f less than $20,000 for the Incentive Payment does not serve as a basis for appeal or otherwise affect the implementation of this Agreement per Section HLQ below. Settlement Shares. Subject to the terms and conditions 0f this Agreement, each PAGA Settlement Member will be allocated a Settlement Share from 25% 0f the Net Settlement Amount; the remainder of the Net Settlement Amount shall be paid to the LWDA as part of the LWDA Payment. The Settlement Share is intended t0 settle claims for PAGA civil penalties. Accordingly, the payments t0 PAGA Settlement Members will not be reduced by payroll tax withholding and deductions; instead, the Settlement Administrator will issue t0 the PAGA Settlement Members IRS Form 1099s and their stateand local equivalents with respect t0 the payments. Distribution 0f Settlement Shares t0 PAGA Settlement Members. After deducting the amounts for the LWDA Payment, the remainder 0f the Net Settlement Amount will be paid as Settlement Shares to each PAGA Settlement Member. The portion 0f the Net Settlem ent Amount available for distribution toPAGA Settlement Group Members (25% 0f the Net Settlement Amount) will be divided as follows: $627,660.00, 0r 88% of the Net Settlement Amount, will be paid to the Associates (with an estimated per—person payment 0f $10.27) and $85,590, or 12% ofthe Net Settlement Amount (with an estimated per—person payment 0f $15792). Additional Amounts For Additional Aggrieved Employees. The Parties agree that, in exchange for the scope of the Released Claims extending from February 1, 2016 through the date that the Parties” Settlement isapproved by the Court, Adecco will increase the Total Settlement Amount by $41.08 per each additional Associate added to PAGA Settlement Members and by $631.68 per each additional Colleague added to PAGA Settlement Members (75% 0f which will g0 t0 the State of Califomia and 25% of which will g0 10 the individual PAGA Settlement Member) (which is the pcr-person share 0f the Total Settlement Amount based 0n the total number of existing aggrieved employees) for each additional aggrieved employee that is employed between March 24, 201 9 and the date that the Paflies’ Settlement is approved by the Court. The number 0f aggrieved employees shall not increase following the Court’s approval 0f the Settlement Agreement. Payments t0 Settlement Administrator. The Settlement Administrator will pay itself out of the Total Settlement Amount its reasonable fees and expenses, as approved by the Couxt 40f12 The Settlement Administrator’s reasonable fees and expenses shall not exceed $100,000.00. LWDA Payment. The Settlement Administrator will pay 75% of the Net Settlement Amount t0 the LWDA as itsshale of the Settlement attributable to civil penaltiesunder PAGA. If the Court approves an LWDA Payment 0f less than 75% of the Net Settlement, the remainder will be retained in the Net Settlement Amount for distribution to thePAGA Settlement Members. Appointment 0f Settlement Administrator. In connection With a Joint Motion t0 the Coult for an Order Approving thisAgreement (“Joint Motion”), the Paflies Will propose a Settlement Administrator t0 distribute Settlement Shares and other payments due under the Settlement; and otherwise administer the Settlement. In the event that the Settlement is not approved, each Pafiy will be reasonable for paying fifty (50%) percent 0f the Settlement Administrator’s reasonable fees incurred as ofthat time. The Settlement Administrator, as a condition of appointment, will agree t0 be bound by this Agreement with respect to the performance ofits duties and its compensation. The Settlement Administrator’s duties will include preparing, printing, and mailing the letter t0 the PAGA Settlement Members; conducting a National Change of Address search and using Accurint and other reasonable and cost—cffcctive skip trace methods to locate any PAGA Settlement Member whose letter or Settlement Share was returned by the U.S. Postal Service asnon—deliverable, and re- mailing the letter and Settlement Share to the PAGA Settlement Member’s new address; issuing the checks to effectuatethe payments due under the Settlement; and otherwise administen'ng the Settlement pursuant to this Agreement. The Settlement Administrator’s reasonable fees and expenses, including the cost 0f printing and mailing the letter,will be paid out of the Total Settlement Amount. Procedure for Approving Settlement 1. Motion foran Order Approving the Settlement. a. The Paflies Will cooperate in seeking approval 0fthe Settlement, including by drafting and filing the Joint Motion. The Parties further agree to fully cooperate in the drafting and/or filing of any further documents reasonably necessary t0 be prepared 0r filed and shall take allsteps thatmay be requested by the Court relating 10 the approval and implementation of the Settlement. Plaintiff’sCounsel shall draft the JointMotion and provide the draft to Defendant’s Counsel for review and revision three (3) at least business days prior t0 the filing of the Joint Motion, Plaintiff‘s Counsel shall submit the Settlement Agreement and motion papers to the LWDA n0 later than three (3) business days after the Settlement Agreement and motion papers are filed with the Court. b. At the hearing on the Joint Motion, the Parties will jointly appear, support the granting 0f the motion, and submit an order granting the motion in the form evidenced by Exhibit A to this Ag‘eement. c. The Parties will jointly file the Joint Motion. If theCourt does not grant the application for approval and issue an order approving the Settlement, under the specific terms requested, thc Parties agree to meet and confer to address the Court’s concerns in good faith and determine whether 50f12 resolution of the claims encompassed by the Settlement can be obtained in a manner consistent with the Coufi’s concerns. d. If theCourt does not grant approval of the Settlement, 0r if the Court’s final approval 0f the Settlement is reversed 0r materially modified 0n appellate review, then the Settlement will become null and void. A modification of amounts payable in attorneys’ fees or expenses, amounts payable as part 0fthe Plaintiff's Incentive Payment, or amounts paid to the Settlement Administrator for its fees and expenses shall not be deemed a material modification 0f the Settlement. N0 Right to Opt Out. The Parties agree that there is no statutory right for any PAGA Settlement Member t0 opt out 0r otherwise exclude himself or herself from the Settlement. Notice and Payment of Settlement Shares to PAGA Settlement Members. After the Court enters itsorder granting the Joint Motion: every PAGA Settlement Member will be provided with a letter concerning the Settlement (see Exhibit A) and payment 0f the PAGA Settlement Member’s Settlement Share. 1. Consistent with the timeframes set forth in Section HLQ, the Settlement Administrator Will send each PAGA Settlement Member the letterand and payment of the PAGA Settlement Member’s Settlement Share. The Settlement Administrator will mail the lettersand Settlement Share payments to allidentified PAGA Settlement Members, using the mailing address information provided by Defendant, unless modified by any updated address information that the Settlement Administrator obtains during the course of administration of the Settlement. In the event 0f returned 0r non—deliverable letters and Settlement Share payments, the Settlement Administrator will make reasonable efforts t0 locate PAGA Settlement Members and rc-send the lettersand Settlement Share payments. The Settlement Administrator will promptly, and not later than fifteen (15) calendar days from receipt 0f the returned packet and payment, search for a more current address forthe PAGA Settlement Member using Accurint and other reasonable and cost—effective skip trace methods, and re—mai] the letter and Settlement Share payment t0 the PAGA Settlement Member. The Settlement Administrator will use the PAGA Settlement Members‘ data and othenvise work with Defendant to find a more current address. The Settlement Administrator will be responsible for taking reasonable steps, consistent with its agreed—upon job parameters, court orders, and fee, as agreed t0 with Plaintiff’s Counsel and according t0 the following deadlines, t0 trace the mailing address of anyPAGA Settlement Member for whom a letter0r Settlement Share payment is returned by the U.S. Postal Service as undeliverable. These reasonable steps will include, at a minimum, the tracking of all undelivered mail; performing address searches for allmail returned without a forwarding address; and promptly re—mailing t0 PAGA Settlement Members for whom new addresses are found. If theletterand Settlement Share payment is re— mailed, the Settlement Administrator will note for its own records and notify Plaintiffs Counsel and Defendant’s Counsel of the dateand address 0f each such re—mailing as part 0f a weekly status report provided t0 the Parties. Plaintiffs Counsel and Defendant’s Counsel will be entitled to receive from the Settlement 60f12 Administrator any updated address infomlation about a PAGA Settlement Member as the Settlement Administrator obtains such information. Submission 0f Order. Plaintiff shall submit a copy 0f the order providing for or denying an award 0f civil penalties t0 the LWDA within ten (10) calendar days after entry 0f the dismissal and/or Order, in compliance with Section 2699(l)(3) 0f the California Labor Code. If Plaintiff fails to satisfy this condition in strict compliance with Section 2699(l)(3) of the California Labor Code, the Settlem ent shall be voidable at Defendant’s option. Waiver 0f Right t0 Appeal. Provided that the Court’s approval of thisSettlement is consistent with the material terms of this Agreement, Plaintiff,Defendant, and their respective counsel hereby waive any and all rightsto appeal the final approval of the Seiflement, and the Order therefore will become non—appealable at the time it is entered. If, for any reason an appeal is taken, the time for consummating the Settlement (including making payments under the Settlement) will be suspended until such time as the appeal is finally resolved and the Order becomes Final, as defined in this Agreement. Timing of Settlement Payments and Receipt 0f Contact Information. Within five (5) calendar days after the Settlement becomes Final, as defined in thisAgreement, the Settlement Administrator will provide Defendant with wire transfer information. Within ten (10) calendar days afterthe next payroll cycle after the Settlement becomes Final, Defendant will transfer the Total Settlement Amount t0 the Settlement Administrator via wire transfer. The amount of the Total Settlement Amount attributable to Plaintiff’s counsel’s attorneys’ fees and costs as well as the Incentive Payment will be disbursed to Plaintiff’s counsel immediately. Also, within ten (10) calendar days after the next payroll cycle of Defendant following Court approval,, Defendant will provide t0 the Settlement Administrator the names, last known addresses and telephone numbers, and Social Security numbers of all PAGA Settlement Group Members. This information will remain confidential and will not be disclosed t0 anyone, except in order t0 carry out the reasonable efforts described in Section III.N.3, or pursuant to Defendant’s express written authorization 0r by order 0f the Coufi. Payment shall be made to an interest bearing account A11 interest accrued shall bc payable t0 the State0f California and the Aggieved Employees and added t0 the Net Settlement Amount. Payment shallbe disbursed on a date to be detennined by the Court. Uncashed Settlement Share Checks‘ A PAGA Settlement Member must receive 0r cash his 0r her Settlement Share payment 0r check within 180 calendar