Preview
05/29/2020
1 Larry W. Lee (State Bar No. 228175)
Max W. Gavron (State Bar No. 291697)
2 DIVERSITY LAW GROUP, P.C.
3 515 South Figueroa Street, Suite 1250
Los Angeles, California 90071
4 (213) 488-6555
(213) 488-6554 facsimile
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6 William L. Marder (State Bar No. 170131)
POLARIS LAW GROUP, LLP
7 501 San Benito Street, Suite 200
Hollister, CA 95023
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(831) 531-4214
9 (831) 634-0333
10 Attorneys for Plaintiff and Aggrieved Employees
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF PLACER
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15 BRUCE CANDIA, as an individual and on Case No.: SCV0043429
behalf of all others similarly situated,
16 DECLARATION OF LARRY W. LEE IN
Plaintiff, SUPPORT OF PLAINTIFF’S MOTION
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FOR APPROVAL OF PRIVATE
18 vs. ATTORNEYS GENERAL ACT (LABOR
CODE § 2698 ET SEQ.) SETTLEMENT
19 RABOBANK NATIONAL ASSOCIATION,
a California corporation; and DOES 1 through Complaint Filed: July 22, 2019
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50, inclusive,
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Defendants.
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DECLARATION OF LARRY W. LEE IN SUPPORT OF PLAINTIFF’S MOTION FOR APPROVAL OF PRIVATE
ATTORNEYS GENERAL ACT (LABOR CODE § 2698 ET SEQ.) SETTLEMENT
1 DECLARATION OF LARRY W. LEE
2 I, LARRY W. LEE, declare as follows:
3 The facts in this Declaration are set forth on my personal knowledge and, if called as a
4 witness, I could and would competently testify thereto under oath.
5 1. I am an attorney authorized to practice in all courts of the State of California, and
6 I am one of the attorneys representing Plaintiff in this action. I submit this declaration in support
7 of Plaintiff’s Motion for Approval of Private Attorneys General Act (Labor Code § 2698 et seq.)
8 Settlement.
9 2. On or about July 22, 2019, Plaintiff Bruce Candia filed this action against
10 Defendant, alleging Violation of Labor Code § 2698 et seq. (“Private Attorneys General Act” or
11 “PAGA”).
12 3. On May 13, 2019, notice was provided to the California Labor & Workforce
13 Development Agency (“LWDA”) and Defendant (via certified mail) regarding Defendant’s
14 violation of Labor Code § 204, as required under Labor Code § 2699.3(a)(1) as a prerequisite to
15 bringing a PAGA claim against an employer.
16 4. Subsequent to the filing of the lawsuit, Defendant filed an Answer on or about
17 September 6, 2019. Thereafter, the Parties engaged in formal and informal discovery regarding
18 Plaintiff’s claims as alleged in his Complaint. Defendant produced data regarding the number of
19 aggrieved employees encompassed by Plaintiff’s claim and the number of wage statements at
20 issue, as well as Plaintiff’s personnel file, handbooks, and other records. Defendant produced
21 over 53,000 pages of information in response to discovery requests served by Plaintiff.
22 5. The Parties then engaged in extensive negotiations about possible resolution of
23 Plaintiff’s claims before reaching this current settlement. In February 2020, the Parties
24 participated in a full-day mediation with respected PAGA and class action mediator, Mark Rudy.
25 The matter did not immediately settle. Thereafter, Mr. Rudy issued a mediator’s proposal, which
26 the Parties ultimately accepted.
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DECLARATION OF LARRY W. LEE IN SUPPORT OF PLAINTIFF’S MOTION FOR APPROVAL OF PRIVATE
ATTORNEYS GENERAL ACT (LABOR CODE § 2698 ET SEQ.) SETTLEMENT
1 6. With respect to the terms of the Settlement Agreement, the Parties have agreed
2 that a total of $2,000,000.00 (the “Settlement Amount”) shall be paid by Defendant for the
3 settlement of the PAGA claims and a general release of Plaintiff’s individual claims.
4 7. From the Settlement Amount, Seven Hundred Thousand dollars ($700,000.00)
5 shall be paid to Plaintiff’s counsel as attorneys’ fees, a maximum of Twenty-Five Thousand
6 dollars ($25,000.00) shall be reimbursed to Plaintiff’s counsel for litigation costs, and Five
7 Thousand Five Hundred dollars ($5,500.00) shall be paid to cover the costs of settlement
8 administration by Phoenix Class Action Administration Solutions, which will be responsible for
9 issuing the Notice and settlement payments to the PAGA Members and the LWDA. Twenty
10 Thousand Dollars ($20,000.00) will be paid to Plaintiff in exchange for his individual general
11 release, including a waiver of Civil Code § 1542, and his service as a PAGA representative.
12 8. For purposes of this settlement, the “PAGA Members” are all current and former
13 employees of Defendant in the State of California who were paid wages by Defendant at any
14 time from May 13, 2018, through September 30, 2019.
15 9. Defendant has identified this group as being a total of approximately 1,888
16 individuals, who received approximately 51,589 wage statements. Based on this information, I
17 calculated Defendant’s potential exposure, if maximum penalties were awarded by the Court, as
18 approximately $10.1 million. This amount, however, does not consider the Court’s discretion to
19 reduce penalties under the PAGA, and assumes Plaintiff would be able to prove 100% liability in
20 the face of Defendant’s denial and defenses. Courts routinely significantly discount PAGA
21 penalties even where a plaintiff is successful in proving liability. See, e.g., Carrington v.
22 Starbucks Corp., 30 Cal.App.5th 504 (2018) (reducing PAGA penalty amount by 90%). While
23 Plaintiff is confident he could succeed on his claims, Plaintiff also considers that Defendant
24 could make an argument that PAGA penalties should be reduced based on various factors.
25 10. After subtracting from the Settlement Amount, attorneys’ fees, litigation costs,
26 and administration costs, and Plaintiff’s individual settlement amount, the remaining amount,
27 $1,260,423.99, will be distributed in accordance with PAGA’s requirements. I believe that
28 Plaintiff and the Aggrieved Employees could prevail at trial. However, I also believe in the
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DECLARATION OF LARRY W. LEE IN SUPPORT OF PLAINTIFF’S MOTION FOR APPROVAL OF PRIVATE
ATTORNEYS GENERAL ACT (LABOR CODE § 2698 ET SEQ.) SETTLEMENT
1 fairness of the settlement, which is based on factoring in the uncertainty and risks attendant to
2 not prevailing on Plaintiff’s theory of liability, the possibility of losing at trial and potential for
3 appeals. Moreover, as Defendant adamantly denies that it should be liable for the full extent of
4 the penalties, there is a possibility that Plaintiff and the Aggrieved Employees would be awarded
5 less or no penalties at trial. Further, as a result of this lawsuit, Defendant changed its labor
6 practices, which furthers the goals of the PAGA.
7 11. Pursuant to Labor Code § 2699(i), 75% of this remaining amount, or $945,317.99,
8 shall be paid to the LWDA which shall be used to assist in the enforcement of labor laws and
9 education of employers and employees about their rights and responsibilities under the Labor
10 Code.
11 12. The remaining 25% of the PAGA Amount, or $315,106.00, shall be paid to the
12 PAGA Members.
13 13. Said amount will be paid to each PAGA Member based on the number of pay
14 periods each employee worked during the relevant time period of May 13, 2018, through
15 September 30, 2019 (“Relevant Time Period”).
16 14. This will be done by calculating the number of pay periods each PAGA Member
17 worked during the Relevant Time Period as a numerator and the total number of pay periods
18 worked during the Relevant Time Period by all PAGA Members as the denominator. Based on
19 the information provided by Defendant, the simple average payment amount per Aggrieved
20 Employee will be $166.90 ($315,106.00/1,888 Aggrieved Employees). The amount any
21 particular Aggrieved Employee will be entitled to recover will be greater or lower than this
22 average depending on the number of wage statements he or she received during the PAGA
23 Period, with some entitled to receive more, and others less. See Settlement Agreement ¶ 2.5.
24 15. In exchange for such payments, Plaintiff, the PAGA Members, and the State of
25 California will release Defendants from any and all claims, rights, demands, and/or liabilities, for
26 PAGA civil penalties predicated on violation of Labor Code § 204, and arising out of the
27 statutory violation alleged in the Complaint.
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DECLARATION OF LARRY W. LEE IN SUPPORT OF PLAINTIFF’S MOTION FOR APPROVAL OF PRIVATE
ATTORNEYS GENERAL ACT (LABOR CODE § 2698 ET SEQ.) SETTLEMENT
1 16. This release only releases claims for civil penalties arising out of the statutory
2 violations alleged in the Complaint, and does not release any claims for anything outside of civil
3 penalties, such as wage claims, etc.
4 17. Attached hereto as Exhibit A is a true and correct copy of the Parties’ Settlement
5 Agreement and Release. On May 29, 2020, my office uploaded a copy of Plaintiff’s Motion for
6 Approval and the Settlement Agreement to the LWDA’s website.
7 18. To date, my firm has spent $14,076.01 in litigation-related costs on this matter.
8 Attached as Exhibit B is a true and correct copy of my firm’s cost report. The difference
9 between the amount reserved for costs in the Settlement Agreement and what has been expended
10 will be distributed to the Aggrieved Employees and LWDA in accordance with the terms of the
11 Settlement Agreement.
12 19. Attached as Exhibit C is a copy of the notice the settlement administrator will
13 provide to Aggrieved Employees along with their portion of the PAGA Settlement Amount.
14 I declare under penalty of perjury under the laws of the State of California that the
15 foregoing is true and correct.
16 Executed this 29th day of May, 2020, at Los Angeles, California.
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18 Larry W. Lee
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DECLARATION OF LARRY W. LEE IN SUPPORT OF PLAINTIFF’S MOTION FOR APPROVAL OF PRIVATE
ATTORNEYS GENERAL ACT (LABOR CODE § 2698 ET SEQ.) SETTLEMENT
EXHIBIT A
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the “Agreement”) is made and entered into by
and between Bruce Candia (“Candia” or “Plaintiff”) and Mechanics Bank, successor by merger
ofRabobank National Association (“Rabobank” or “Defendant””). Candia and Rabobank shall
sometimes be referred to herein individually as a “Party” and collectively as the “Parties”.
RECITALS
A. Plaintiff was formerly employed by Defendant Rabobank as an accounts payable
specialist.
B. On or about May 13, 2019, Plaintiff transmitted a letter to the California Labor
and Workforce Development Agency (“LWDA”) asserting that Defendant failed to comply with
the California Labor Code (the “PAGA Notice”). Plaintiff asserted violations of California
Labor Code § 204.
C. On July 22, 2019, Plaintiff filed an action pending in the Superior Court of
California, County of Placer, entitled Bruce Candia, an individual and on behalf of all others
similarly situated v. Rabobank National Association, as Case No. S-CV-0043429 (the “Lawsuit”)
in which he asserted a claim for: (1) Violation of the California Private Attorney General Act
(“PAGA”) Labor Code Sections 2898, et seq. Candia premised his claim on Defendants’ alleged
failure to comply with Labor Code § 204. Plaintiff sought civil penalties and an award of
reasonable attorneys’ fees and costs as permitted by the PAGA, Labor Code § 2698, et seq.
D. Defendant filed an Answer to Plaintiff’s Complaint on or about September 9,
2019.
E. The Parties engaged in discovery, including the exchange of written discovery
and documents.
F. The Parties define the “Aggrieved Employees” to include all current and former
employees of Defendant in the State of California who were paid wages by Defendant at any
time from May 13, 2018, through September 30, 2019 (“PAGA Period”). Defendant represents
that it issued 51,589 wage statements to 1,888Aggrieved Employees during the PAGA Period.
G. On February 3, 2020, the Parties engaged in mediation with Mark S. Rudy, Esq.
After a full day of arm’s length negotiation, the Parties still had not reached a settlement of the
entire case. After the mediation, Mr. Rudy issued a mediator’s proposal, which the Parties
subsequently both accepted. As part of these negotiations, Defendant produced records for
Plaintiff’s review to substantiate Defendant’s claim that it altered its payroll practices such that it
is now compliant with Labor Code § 204.
H. The Parties will seek approval of the settlement with the Placer County Superior
Court by means of a Stipulation for Approval of PAGA Settlement (the “Stipulation”).
I. By this Agreement, the Parties have settled, fully and finally, all claims that
Candia and the Aggrieved Employees he represents asserted in the Complaint that accrued
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during the PAGA Period, described more fully below (referred to herein as the “Representative
PAGA Claims”). In addition, the Parties have also settled, fully and finally, all claims that
Candia has or might have against Rabobank, on an individual basis, as is also set forth below.
NOW, THEREFORE, in consideration of the terms, conditions, and promises set forth
herein, the Parties agree as follows:
TERMS AND SETTLEMENT
1. No Admission of Liability. This Agreement memorializes the compromise of disputed
claims. The Parties acknowledge that the execution of this Agreement and the payment of
consideration or any other obligation hereunder are not and shall not be construed in any way as
an admission of wrongdoing or liability on the part of Defendant, or any other person or business
entity. Defendant denies all allegations of wrongdoing arising out of the employment
relationship between the Parties including the Aggrieved Employees. The Parties intend to
settle, by this Agreement, merely to avoid the expense, delay, uncertainty, and burden of
continued litigation.
2. Consideration by Defendants. In exchange for a full and complete settlement and in
release and discharge of any and all claims, and causes of action, including those contained in the
Complaint with respect to Plaintiff and the Aggrieved Employees, including claims for
attorneys’ fees and costs, that Candia may have, or has ever had, against Defendant, Defendant
will pay the gross amount of Two Million Dollars and Zero Cents ($2,000,000.00) (the “PAGA
Settlement Amount”). Upon the Court’s entry of its order approving this PAGA settlement (the
“Effective Date”), Defendant shall wire the PAGA Settlement Amount to the Settlement
Administrator pursuant to the timing listed below in paragraph 3. Upon the Settlement
Administrator’s receipt of the funds and Court approval, the Settlement Administrator will then
disburse payment pursuant to the timing listed below in paragraph 3, and according to the terms
of this Agreement as follows:
2.1 One check payable to Bruce Candia in the gross amount of Twenty Thousand
Dollars ($20,000.00). The Parties intend this amount to represent compensation for
Plaintiff as the PAGA representative on behalf of the Aggrieved Employees and in
exchange for a general release as detailed below. The Settlement Administrator will
issue an IRS form 1099 to Plaintiff regarding this payment for civil penalties.
2.2 Thirty-five percent (35%) of the PAGA Settlement Amount for attorneys’ fees to
Plaintiff’s counsel, or Seven Hundred Thousand Dollars ($700,000.00) and up to Twenty-
Five Thousand Dollars ($25,000.00) for Plaintiff’s counsel’s costs. The Settlement
Administrator shall issue appropriate IRS form 1099s to Plaintiff’s counsel.
2.3 Five Thousand Five Hundred Dollars and Zero Cents ($5,500.00) shall be paid to
the Settlement Administrator, Phoenix Class Action Administration Solutions, from the
PAGA Settlement Amount.
2.4 The remaining balance after deducting the amount being paid to Plaintiff,
attorneys’ fees and costs, and the Settlement Administrator’s Fees is approximately One
Million, Two-Hundred Forty-Nine Thousand and Five Hundred Dollars ($1,249,500.00)
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(the “Net Settlement Amount”). For purposes of computing taxes, One Hundred Percent
(100%) of the Net Settlement Amount ($1,269,500.00) shall be classified as civil
penalties (“Civil Penalty Allocation”), unless otherwise required by law, and shall be
distributed as follows:
a. Seventy-Five Percent (75%) of the Civil Penalty Allocation, or Nine
Hundred Seventy-Four Thousand and Six Hundred and Twenty-Five Dollars and
Zero Cents ($974,625.00) shall be paid to the LWDA, which represents civil
penalties payable to the LWDA under the PAGA, Labor code section 2698, et
seq.
b. Twenty Five Percent (25%) of the Civil Penalty Allocation, or Three
Hundred and Twelve Thousand and Three Hundred and Seventy-Five Dollars and
Zero Cents ($312,375.00) (the “Aggrieved Employee Amount”) shall be paid to
the Aggrieved Employees, which represents civil penalties payable to the
Aggrieved Employees as compensation for disputed civil penalties that are
allegedly owed on the Representative PAGA Claims during the PAGA Period to
all alleged Aggrieved Employees described in the Lawsuit, to be distributed by a
Settlement Administrator agreed upon by the Parties pursuant to the formula set
out in paragraph 2.5 below.
2.5 The formula for distribution of the amount described in Section 2.4(b) is as
follows: Each Aggrieved Employee shall be allocated a proportionate share of the
Aggrieved Employee Amount based on the number of wage statements each Aggrieved
Employee received during the PAGA Period. Defendant shall provide data to the
Settlement Administrator establishing the number of wage statements each Aggrieved
Employee received during the PAGA Period. The pro rata portion of the Aggrieved
Employee Amount shall be determined by dividing the total number of wage statements
issued during the PAGA Period into the Aggrieved Employee Amount to arrive at a value
per wage statement for each Aggrieved Employee. The value per wage statement shall
be multiplied by the number of wage statements issued to each Aggrieved Employee
during the PAGA Period to calculate each Aggrieved Employee’s pro rata share of the
Aggrieved Employee Amount. This figure will be known as the “Aggrieved Employee
Settlement Award” (defined herein as “the amount of money allocated to each Aggrieved
Employee”).
3. PAGA Settlement Administration. The Parties have agreed to select Phoenix Class
Action Administration Solutions as the Settlement Administrator to administer the Settlement.
All of the Settlement Administrator’s costs and fees shall be paid from the PAGA Settlement
Amount.
3.1 Within fifteen (15) calendar days after the Entry of Order Approving PAGA
Settlement, Defendant shall provide to the Settlement Administrator a spreadsheet, in a
searchable electronic format, containing the following for each individual falling within
the definition of Aggrieved Employee for the entire Settlement Period: (i) each
Aggrieved Employee’s name, (ii) last known address, (iii) last known telephone number
(if available), (iv) Social Security number, and (v) the number of Wage Statements
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received during the PAGA Period (the “Aggrieved Employee List”). The Aggrieved
Employee List shall be held as private and confidential information, and shall not be
shared with Plaintiff’s counsel or any third party by the Settlement Administrator without
the express written consent of Defendant’s counsel of record and/or court order.
3.2 Within fifteen (15) calendar days after the Entry of Order Approving PAGA
Settlement, Defendant shall transfer the PAGA Settlement Amount to the Settlement
Administrator to affect disbursement of the PAGA Settlement Amount.
3.3 Within fourteen (14) calendar days of transfer of the PAGA Settlement Amount,
the Settlement Administrator shall distribute such funds under the allocation plan set
forth in Section 2 above. All Settlement checks sent to the Aggrieved Employees shall be
accompanied with a Notice, attached hereto as Exhibit A, which shall provide a brief
description of the Lawsuit and this Settlement.
3.4 As the Representative PAGA Claims are not a class action, the Parties agree that
California Code of Civil Procedure § 384 shall not be applicable. Any checks uncashed
after 6 months will escheat to the State of California’s Unclaimed Property Fund in the
name of the Aggrieved Employee. The Settlement Administrator shall be responsible for
administration of all unclaimed funds, including any and all reporting requirements
proscribed by California law.
3.5 Within twenty (20) calendar days of distributing the PAGA Settlement Amount,
the Settlement Administrator shall provide to the Parties, for filing with the Court, a
declaration verifying, under oath, that the Settlement Administrator has affected
disbursement of the PAGA Settlement Amount pursuant to the terms of this Agreement.
3.6 All notices, requests, demands and other communications required or permitted to
be given pursuant to this Settlement shall be in writing and shall be delivered personally
or mailed, postage prepaid, by first-class mail, to counsel of record at their respective
addresses.
4. Judgment. As part of the Stipulation, Plaintiff’s Counsel shall petition the Court to
enter an Order Approving Settlement and entering judgment thereon. The Parties shall also
jointly request and reserve the Court’s continuing jurisdiction over the construction,
interpretation, implementation, and enforcement of this Settlement in accordance with its terms,
and over the administration and distribution of the settlement proceeds pursuant to California
Code of Civil Procedure § 664.6.
5. Taxes. Candia understands and acknowledges that Defendant will not deduct any taxes
or other withholdings from the Consideration described in Section 2.1 above and that he is fully
responsible for all taxes, if any, to the Internal Revenue Service, California Franchise Tax Board,
or other taxing authorities, pertaining to any payments received under this Agreement. Candia
will receive an IRS Form 1099 for said sums. Plaintiff and each Aggrieved Employee bear full
responsibility for the payment of any taxes or withholdings arising from the Aggrieved
Employee Settlement Awards or enhancement payments paid to them. Neither Plaintiff’s
Counsel nor counsel for Defendant intend anything contained herein to constitute advice
regarding the taxability of any amount paid hereunder, nor shall it be relied upon as such. The
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tax issues for each Aggrieved Employee are unique, and each Aggrieved Employee is advised to
obtain tax advice from his or her own advisor with respect to any payments resulting from this
Settlement. Candia and each Aggrieved Employee shall indemnify and hold Defendant harmless
for any tax liability, including penalties and interest, which may be assessed against Defendant
and/or Plaintiff/Aggrieved Employees for failure to withhold taxes and/or make any other
deductions from the Payment.
6. Release by Plaintiff on Behalf of the LWDA. Upon the approval by the Court of this
Agreement, Plaintiff, individually and as the representative acting as a proxy or agent of the
LWDA, a State of California Executive Branch Agency, in this Action, agrees to release
Defendant, its joint employers, affiliates, subsidiaries, owners, members, partners, officers,
directors, predecessors, successors, assigns, agents, shareholders, investors, insurers and legal
representatives (“Released Parties”) for penalties under the California Private Attorneys’ General
Act predicated on the violation of Labor Code § 204 based on the facts as alleged in the
Complaint that accrued at any time during the PAGA Period (“Released Claims”).
6.1 The express purpose of this Agreement and the judgment to be entered by the
Court following approval of this settlement is to forever bar Plaintiff, the LWDA, and
any other individual or entity acting on behalf of or purporting to act on behalf of the
LWDA from asserting any of the Released Claims in any future litigation. It is the intent
of the Parties that, to the greatest extent provided by law, including under the holding of
Arias v. Superior Court, 46 Cal. 4th 969, 986 (2009), the ability of Plaintiff, the State of
California or any Aggrieved Employee to bring a PAGA claim on behalf of the LWDA is
completely and forever foreclosed. Any Party to this Agreement may use the Agreement
to assert that this settlement and the judgment to be entered by the Court following
approval by this settlement bars any later-filed action asserting any of the Released
Claims against any of the Released Parties at any time during the PAGA Period.
7. Release by Plaintiff Individually. In addition to the release addressed in Paragraph 6,
Plaintiff generally releases all claims he has or may have against Defendant. Specifically, after
receipt of the amount set forth in Paragraph 2.1, Plaintiff agrees to release and forever discharge
all known and unknown claims against Defendant, any and all of their parent companies, joint
employers, affiliates, subsidiaries, and each of their respective employees, officers, directors,
agents, attorneys, administrators, insurers, representatives, successors, predecessors and assigns.
The Parties also agree the Agreement shall be binding on Plaintiff and Defendantand each of
their insurers, parent companies, affiliates, subsidiaries, predecessors, successors, assigns,
employees, officers, directors, agents, attorneys, administrators, representatives, heirs, estates,
and powers-of-attorney. Plaintiff will also generally release all known and unknown claims
pursuant to California Civil Code § 1542, as set forth below. (the “Plaintiff’s Individual
Released Claims”).
7.1 The Parties further agree by way of this Agreement that this Agreement shall be a
full and final release of all of Plaintiff’s Individual Released Claims. Plaintiff knowingly
and voluntarily waives any and all rights or benefits she may have under the terms of
California Civil Code §1542, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT
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THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR
HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
7.2 Plaintiff waives any right or benefit he may have or has under Civil Code Section
1542, as set forth above, to the full extent Plaintiff may lawfully waive all such rights and
benefits pertaining to the subject matter of this Agreement. Plaintiff acknowledges that
he is aware he may hereafter discover facts in addition to or different from those Plaintiff
now knows or believes to be true with respect to any actual or potential claims, including
but not limited to the subject matter of this Agreement, and that it is Plaintiff’s intention
to fully and forever settle and release all Plaintiff’s Individual Released Claims, disputes
and differences, known or unknown, suspected or unsuspected, which do now exist, may
exist or heretofore have existed, and that in furtherance of such intention the releases
herein given shall be and remain in effect as full and complete general releases,
notwithstanding the discovery or existence of any such additional or different facts.
8. Successors. This Agreement shall be binding upon, and inure to the benefit of, the
Parties, and their heirs, representatives, executors, administrators, successors, insurers, and
assigns, and shall inure to the benefit of each and all of the Released Parties, and to their heirs,
representatives, executors, administrators, successors, and assignees.
9. Confidentiality. Other than information necessary to secure Court approval of this
settlement or to advise aggrieved employees or the State about the Settlement, the Parties agree
to keep confidential all matters relative to this Settlement, including the terms of the Settlement
and the facts and circumstances leading up to it. If asked about the disputes between the Parties,
the Parties shall provide no other statement than "the matter has been resolved" or "the matter
has settled." The Parties may, however, discuss the terms of this Settlement with their spouses,
attorneys, financial advisors, tax advisors, government agencies, and accountants, or with the
aggrieved employees. Plaintiff represents and warrants that prior to signing this Agreement, he
has not made any disclosures that would have been prohibited by this Agreement had they been
made after the full execution of this Agreement.
In the event that Plaintiff believes that he is legally obligated by statutory or regulatory
requirements (including compulsory legal process), to make such disclosures, he shall so notify
the opposing party in writing immediately, and in no event less than ten days prior to the date for
disclosure. If it is not possible to do so at least 10 days in advance, Plaintiff will notify counsel
for Defendant (Katie Collins, at (916) 558-6018), within 24 hours of receiving notice that he is
so obligated. If Defendant takes any action to challenge such disclosure, Plaintiff shall defer
making such disclosure until Defendant’s challenge is finally resolved, unless ordered by a Court
to give the information notwithstanding Defendant’s challenge. In addition, Plaintiff’s counsel
will not seek to legally compel such disclosures. The Parties understand that the covenant of
nondisclosure contained in this Agreement is a material inducement for making this Settlement
and that, for the breach thereof the Defendant will suffer irreparable harm for which damages
would be an inadequate remedy.
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Neither Plaintiff, nor his attorneys, may report this settlement, even anonymously, to any jury or
verdict reporting service.
10. Breach by Parties. In addition to any other rights the Parties have or may have under
this Agreement, in the event of a breach by either party of any of the terms of this Agreement,
the non-breaching Party shall be entitled, if it shall so elect, to institute legal proceedings to
obtain damages for any such breach, or to enforce the specific performance of this Agreement by
either party and to enjoin the other party from any further violation of this Agreement and to
exercise such remedies cumulatively or in conjunction with all other rights and remedies
provided by law. The Parties acknowledge, however, that the remedies at law for any breach by
either party may be inadequate and that the non-breaching party shall be entitled to injunctive
relief against the breaching party in the event of any breach. If the non-breaching party prevails
in a proceeding for damages or injunctive relief, the breaching party agrees that the non-
breaching party, in addition to other relief, shall be entitled to reasonable attorney fees, costs, and
the expenses of litigation incurred by the non-breaching party in securing the relief granted by
the Court.
11. No Attorneys’ Fees and Costs. Except as otherwise set forth in this Agreement, the
Parties agree that they shall bear their own total respective costs and fees, including attorneys’
fees.
12. Agreement is Voluntary. Candia understands and agrees that he:
12.1 Has had a reasonable amount of time within which to consider the settlement
terms memorialized in this Agreement before agreeing to them;
12.2 Has carefully read and fully understands all of the provisions of this Agreement;
12.3 Is, through this Agreement, releasing his Representative PAGA Claims he may
have against any of the Released Parties;
12.4 Knowingly and voluntarily agrees to all of the terms set forth in this Agreement;
12.5 Knowingly and voluntarily intends to be legally bound by the same; and
12.6 Was represented by and consulted an attorney prior to agreeing to the terms of
this Agreement.
13. No Representations. The Parties acknowledge that, except as expressly set forth herein,
no representation of any kind or character has been made to induce the execution of this
Agreement.
14. Ownership of Claims. The Parties represent that they have not transferred or assigned,
or purported to transfer or assign, to any person or entity, any claim described in this Agreement.
The Parties further agree to indemnify and hold harmless one another, and all of their present
partners, officers, directors, employees against any and all claims based upon, arising out of, or
in any way connected with any such actual or purported transfer or assignment.
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15. Severability. Should any provision in this Agreement be declared or determined to be
illegal or invalid, the validity of the remaining parts, terms, or provisions shall not be affected
thereby, and the illegal or invalid part, term, or provision shall be deemed not to be part of this
Agreement, and all remaining provisions shall remain valid and enforceable.
16. Integration. This Agreement sets forth the entire agreement between the Parties and
fully supersedes any and all prior agreements and understandings between the Parties pertaining
to the subject matter of this Agreement. Any modifications in this Agreement must be in writing
and signed by the Parties.
17. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Furthermore, signatures delivered via facsimile or electronic transmission shall have
the same force, validity and effect as the originals thereof.
18. Interpretation. This Agreement, and any ambiguities or uncertainties herein, shall be
equally and fairly interpreted, and construed, without reference to the identity of the Party
drafting this document, upon the express understanding and agreement that the Parties
participated equally in the negotiation and preparation of this Agreement, or have had equal
opportunity to do so. Accordingly, the Parties, and each of them, expressly waive the benefits of
California Civil Code Section 1654, and any successor or amended statute.
19. Governing Law and Venue. This Agreement shall in all respects be interpreted,
enforced and governed by and under the laws of the State of California, regardless of the
conflicts of laws rules of any individual state. In addition, any action brought to enforce the
provisions of this Agreement shall be commenced, prosecuted, and defended exclusively in the
Superior Court of the State of California, County of Placer.
20. Captions And Headings. The section headings, captions, and titles used in this
Agreement are intended solely for convenience of reference and shall not in any manner amplify,
limit, modify or otherwise be used in the interpretation of any of the provisions hereof.
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{2841219.DOCX;} Page 8 of 9
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES THE RELEASE OF
PAGA REPRESENTATIVE CLAIMS AND THE RELEASE OF PLAINTIFF’S
INDIVIDUAL RELEASED CLAIMS.
Dated: ___________________________________
Bruce Candia
Mechanics Bank, successor by merger of Rabobank, N.A.
Dated:
Preview
05/29/2020 1 Larry W. Lee (State Bar No. 228175) Max W. Gavron (State Bar No. 291697) 2 DIVERSITY LAW GROUP, P.C. 3 515 South Figueroa Street, Suite 1250 Los Angeles, California 90071 4 (213) 488-6555 (213) 488-6554 facsimile 5 6 William L. Marder (State Bar No. 170131) POLARIS LAW GROUP, LLP 7 501 San Benito Street, Suite 200 Hollister, CA 95023 8 (831) 531-4214 9 (831) 634-0333 10 Attorneys for Plaintiff and Aggrieved Employees 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF PLACER 14 15 BRUCE CANDIA, as an individual and on Case No.: SCV0043429 behalf of all others similarly situated, 16 DECLARATION OF LARRY W. LEE IN Plaintiff, SUPPORT OF PLAINTIFF’S MOTION 17 FOR APPROVAL OF PRIVATE 18 vs. ATTORNEYS GENERAL ACT (LABOR CODE § 2698 ET SEQ.) SETTLEMENT 19 RABOBANK NATIONAL ASSOCIATION, a California corporation; and DOES 1 through Complaint Filed: July 22, 2019 20 50, inclusive, 21 Defendants. 22 23 24 25 26 27 28 1 DECLARATION OF LARRY W. LEE IN SUPPORT OF PLAINTIFF’S MOTION FOR APPROVAL OF PRIVATE ATTORNEYS GENERAL ACT (LABOR CODE § 2698 ET SEQ.) SETTLEMENT 1 DECLARATION OF LARRY W. LEE 2 I, LARRY W. LEE, declare as follows: 3 The facts in this Declaration are set forth on my personal knowledge and, if called as a 4 witness, I could and would competently testify thereto under oath. 5 1. I am an attorney authorized to practice in all courts of the State of California, and 6 I am one of the attorneys representing Plaintiff in this action. I submit this declaration in support 7 of Plaintiff’s Motion for Approval of Private Attorneys General Act (Labor Code § 2698 et seq.) 8 Settlement. 9 2. On or about July 22, 2019, Plaintiff Bruce Candia filed this action against 10 Defendant, alleging Violation of Labor Code § 2698 et seq. (“Private Attorneys General Act” or 11 “PAGA”). 12 3. On May 13, 2019, notice was provided to the California Labor & Workforce 13 Development Agency (“LWDA”) and Defendant (via certified mail) regarding Defendant’s 14 violation of Labor Code § 204, as required under Labor Code § 2699.3(a)(1) as a prerequisite to 15 bringing a PAGA claim against an employer. 16 4. Subsequent to the filing of the lawsuit, Defendant filed an Answer on or about 17 September 6, 2019. Thereafter, the Parties engaged in formal and informal discovery regarding 18 Plaintiff’s claims as alleged in his Complaint. Defendant produced data regarding the number of 19 aggrieved employees encompassed by Plaintiff’s claim and the number of wage statements at 20 issue, as well as Plaintiff’s personnel file, handbooks, and other records. Defendant produced 21 over 53,000 pages of information in response to discovery requests served by Plaintiff. 22 5. The Parties then engaged in extensive negotiations about possible resolution of 23 Plaintiff’s claims before reaching this current settlement. In February 2020, the Parties 24 participated in a full-day mediation with respected PAGA and class action mediator, Mark Rudy. 25 The matter did not immediately settle. Thereafter, Mr. Rudy issued a mediator’s proposal, which 26 the Parties ultimately accepted. 27 28 2 DECLARATION OF LARRY W. LEE IN SUPPORT OF PLAINTIFF’S MOTION FOR APPROVAL OF PRIVATE ATTORNEYS GENERAL ACT (LABOR CODE § 2698 ET SEQ.) SETTLEMENT 1 6. With respect to the terms of the Settlement Agreement, the Parties have agreed 2 that a total of $2,000,000.00 (the “Settlement Amount”) shall be paid by Defendant for the 3 settlement of the PAGA claims and a general release of Plaintiff’s individual claims. 4 7. From the Settlement Amount, Seven Hundred Thousand dollars ($700,000.00) 5 shall be paid to Plaintiff’s counsel as attorneys’ fees, a maximum of Twenty-Five Thousand 6 dollars ($25,000.00) shall be reimbursed to Plaintiff’s counsel for litigation costs, and Five 7 Thousand Five Hundred dollars ($5,500.00) shall be paid to cover the costs of settlement 8 administration by Phoenix Class Action Administration Solutions, which will be responsible for 9 issuing the Notice and settlement payments to the PAGA Members and the LWDA. Twenty 10 Thousand Dollars ($20,000.00) will be paid to Plaintiff in exchange for his individual general 11 release, including a waiver of Civil Code § 1542, and his service as a PAGA representative. 12 8. For purposes of this settlement, the “PAGA Members” are all current and former 13 employees of Defendant in the State of California who were paid wages by Defendant at any 14 time from May 13, 2018, through September 30, 2019. 15 9. Defendant has identified this group as being a total of approximately 1,888 16 individuals, who received approximately 51,589 wage statements. Based on this information, I 17 calculated Defendant’s potential exposure, if maximum penalties were awarded by the Court, as 18 approximately $10.1 million. This amount, however, does not consider the Court’s discretion to 19 reduce penalties under the PAGA, and assumes Plaintiff would be able to prove 100% liability in 20 the face of Defendant’s denial and defenses. Courts routinely significantly discount PAGA 21 penalties even where a plaintiff is successful in proving liability. See, e.g., Carrington v. 22 Starbucks Corp., 30 Cal.App.5th 504 (2018) (reducing PAGA penalty amount by 90%). While 23 Plaintiff is confident he could succeed on his claims, Plaintiff also considers that Defendant 24 could make an argument that PAGA penalties should be reduced based on various factors. 25 10. After subtracting from the Settlement Amount, attorneys’ fees, litigation costs, 26 and administration costs, and Plaintiff’s individual settlement amount, the remaining amount, 27 $1,260,423.99, will be distributed in accordance with PAGA’s requirements. I believe that 28 Plaintiff and the Aggrieved Employees could prevail at trial. However, I also believe in the 3 DECLARATION OF LARRY W. LEE IN SUPPORT OF PLAINTIFF’S MOTION FOR APPROVAL OF PRIVATE ATTORNEYS GENERAL ACT (LABOR CODE § 2698 ET SEQ.) SETTLEMENT 1 fairness of the settlement, which is based on factoring in the uncertainty and risks attendant to 2 not prevailing on Plaintiff’s theory of liability, the possibility of losing at trial and potential for 3 appeals. Moreover, as Defendant adamantly denies that it should be liable for the full extent of 4 the penalties, there is a possibility that Plaintiff and the Aggrieved Employees would be awarded 5 less or no penalties at trial. Further, as a result of this lawsuit, Defendant changed its labor 6 practices, which furthers the goals of the PAGA. 7 11. Pursuant to Labor Code § 2699(i), 75% of this remaining amount, or $945,317.99, 8 shall be paid to the LWDA which shall be used to assist in the enforcement of labor laws and 9 education of employers and employees about their rights and responsibilities under the Labor 10 Code. 11 12. The remaining 25% of the PAGA Amount, or $315,106.00, shall be paid to the 12 PAGA Members. 13 13. Said amount will be paid to each PAGA Member based on the number of pay 14 periods each employee worked during the relevant time period of May 13, 2018, through 15 September 30, 2019 (“Relevant Time Period”). 16 14. This will be done by calculating the number of pay periods each PAGA Member 17 worked during the Relevant Time Period as a numerator and the total number of pay periods 18 worked during the Relevant Time Period by all PAGA Members as the denominator. Based on 19 the information provided by Defendant, the simple average payment amount per Aggrieved 20 Employee will be $166.90 ($315,106.00/1,888 Aggrieved Employees). The amount any 21 particular Aggrieved Employee will be entitled to recover will be greater or lower than this 22 average depending on the number of wage statements he or she received during the PAGA 23 Period, with some entitled to receive more, and others less. See Settlement Agreement ¶ 2.5. 24 15. In exchange for such payments, Plaintiff, the PAGA Members, and the State of 25 California will release Defendants from any and all claims, rights, demands, and/or liabilities, for 26 PAGA civil penalties predicated on violation of Labor Code § 204, and arising out of the 27 statutory violation alleged in the Complaint. 28 4 DECLARATION OF LARRY W. LEE IN SUPPORT OF PLAINTIFF’S MOTION FOR APPROVAL OF PRIVATE ATTORNEYS GENERAL ACT (LABOR CODE § 2698 ET SEQ.) SETTLEMENT 1 16. This release only releases claims for civil penalties arising out of the statutory 2 violations alleged in the Complaint, and does not release any claims for anything outside of civil 3 penalties, such as wage claims, etc. 4 17. Attached hereto as Exhibit A is a true and correct copy of the Parties’ Settlement 5 Agreement and Release. On May 29, 2020, my office uploaded a copy of Plaintiff’s Motion for 6 Approval and the Settlement Agreement to the LWDA’s website. 7 18. To date, my firm has spent $14,076.01 in litigation-related costs on this matter. 8 Attached as Exhibit B is a true and correct copy of my firm’s cost report. The difference 9 between the amount reserved for costs in the Settlement Agreement and what has been expended 10 will be distributed to the Aggrieved Employees and LWDA in accordance with the terms of the 11 Settlement Agreement. 12 19. Attached as Exhibit C is a copy of the notice the settlement administrator will 13 provide to Aggrieved Employees along with their portion of the PAGA Settlement Amount. 14 I declare under penalty of perjury under the laws of the State of California that the 15 foregoing is true and correct. 16 Executed this 29th day of May, 2020, at Los Angeles, California. 17 __________________________________ 18 Larry W. Lee 19 20 21 22 23 24 25 26 27 28 5 DECLARATION OF LARRY W. LEE IN SUPPORT OF PLAINTIFF’S MOTION FOR APPROVAL OF PRIVATE ATTORNEYS GENERAL ACT (LABOR CODE § 2698 ET SEQ.) SETTLEMENT EXHIBIT A SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the “Agreement”) is made and entered into by and between Bruce Candia (“Candia” or “Plaintiff”) and Mechanics Bank, successor by merger ofRabobank National Association (“Rabobank” or “Defendant””). Candia and Rabobank shall sometimes be referred to herein individually as a “Party” and collectively as the “Parties”. RECITALS A. Plaintiff was formerly employed by Defendant Rabobank as an accounts payable specialist. B. On or about May 13, 2019, Plaintiff transmitted a letter to the California Labor and Workforce Development Agency (“LWDA”) asserting that Defendant failed to comply with the California Labor Code (the “PAGA Notice”). Plaintiff asserted violations of California Labor Code § 204. C. On July 22, 2019, Plaintiff filed an action pending in the Superior Court of California, County of Placer, entitled Bruce Candia, an individual and on behalf of all others similarly situated v. Rabobank National Association, as Case No. S-CV-0043429 (the “Lawsuit”) in which he asserted a claim for: (1) Violation of the California Private Attorney General Act (“PAGA”) Labor Code Sections 2898, et seq. Candia premised his claim on Defendants’ alleged failure to comply with Labor Code § 204. Plaintiff sought civil penalties and an award of reasonable attorneys’ fees and costs as permitted by the PAGA, Labor Code § 2698, et seq. D. Defendant filed an Answer to Plaintiff’s Complaint on or about September 9, 2019. E. The Parties engaged in discovery, including the exchange of written discovery and documents. F. The Parties define the “Aggrieved Employees” to include all current and former employees of Defendant in the State of California who were paid wages by Defendant at any time from May 13, 2018, through September 30, 2019 (“PAGA Period”). Defendant represents that it issued 51,589 wage statements to 1,888Aggrieved Employees during the PAGA Period. G. On February 3, 2020, the Parties engaged in mediation with Mark S. Rudy, Esq. After a full day of arm’s length negotiation, the Parties still had not reached a settlement of the entire case. After the mediation, Mr. Rudy issued a mediator’s proposal, which the Parties subsequently both accepted. As part of these negotiations, Defendant produced records for Plaintiff’s review to substantiate Defendant’s claim that it altered its payroll practices such that it is now compliant with Labor Code § 204. H. The Parties will seek approval of the settlement with the Placer County Superior Court by means of a Stipulation for Approval of PAGA Settlement (the “Stipulation”). I. By this Agreement, the Parties have settled, fully and finally, all claims that Candia and the Aggrieved Employees he represents asserted in the Complaint that accrued {2841219.DOCX;} Page 1 of 9 during the PAGA Period, described more fully below (referred to herein as the “Representative PAGA Claims”). In addition, the Parties have also settled, fully and finally, all claims that Candia has or might have against Rabobank, on an individual basis, as is also set forth below. NOW, THEREFORE, in consideration of the terms, conditions, and promises set forth herein, the Parties agree as follows: TERMS AND SETTLEMENT 1. No Admission of Liability. This Agreement memorializes the compromise of disputed claims. The Parties acknowledge that the execution of this Agreement and the payment of consideration or any other obligation hereunder are not and shall not be construed in any way as an admission of wrongdoing or liability on the part of Defendant, or any other person or business entity. Defendant denies all allegations of wrongdoing arising out of the employment relationship between the Parties including the Aggrieved Employees. The Parties intend to settle, by this Agreement, merely to avoid the expense, delay, uncertainty, and burden of continued litigation. 2. Consideration by Defendants. In exchange for a full and complete settlement and in release and discharge of any and all claims, and causes of action, including those contained in the Complaint with respect to Plaintiff and the Aggrieved Employees, including claims for attorneys’ fees and costs, that Candia may have, or has ever had, against Defendant, Defendant will pay the gross amount of Two Million Dollars and Zero Cents ($2,000,000.00) (the “PAGA Settlement Amount”). Upon the Court’s entry of its order approving this PAGA settlement (the “Effective Date”), Defendant shall wire the PAGA Settlement Amount to the Settlement Administrator pursuant to the timing listed below in paragraph 3. Upon the Settlement Administrator’s receipt of the funds and Court approval, the Settlement Administrator will then disburse payment pursuant to the timing listed below in paragraph 3, and according to the terms of this Agreement as follows: 2.1 One check payable to Bruce Candia in the gross amount of Twenty Thousand Dollars ($20,000.00). The Parties intend this amount to represent compensation for Plaintiff as the PAGA representative on behalf of the Aggrieved Employees and in exchange for a general release as detailed below. The Settlement Administrator will issue an IRS form 1099 to Plaintiff regarding this payment for civil penalties. 2.2 Thirty-five percent (35%) of the PAGA Settlement Amount for attorneys’ fees to Plaintiff’s counsel, or Seven Hundred Thousand Dollars ($700,000.00) and up to Twenty- Five Thousand Dollars ($25,000.00) for Plaintiff’s counsel’s costs. The Settlement Administrator shall issue appropriate IRS form 1099s to Plaintiff’s counsel. 2.3 Five Thousand Five Hundred Dollars and Zero Cents ($5,500.00) shall be paid to the Settlement Administrator, Phoenix Class Action Administration Solutions, from the PAGA Settlement Amount. 2.4 The remaining balance after deducting the amount being paid to Plaintiff, attorneys’ fees and costs, and the Settlement Administrator’s Fees is approximately One Million, Two-Hundred Forty-Nine Thousand and Five Hundred Dollars ($1,249,500.00) {2841219.DOCX;} Page 2 of 9 (the “Net Settlement Amount”). For purposes of computing taxes, One Hundred Percent (100%) of the Net Settlement Amount ($1,269,500.00) shall be classified as civil penalties (“Civil Penalty Allocation”), unless otherwise required by law, and shall be distributed as follows: a. Seventy-Five Percent (75%) of the Civil Penalty Allocation, or Nine Hundred Seventy-Four Thousand and Six Hundred and Twenty-Five Dollars and Zero Cents ($974,625.00) shall be paid to the LWDA, which represents civil penalties payable to the LWDA under the PAGA, Labor code section 2698, et seq. b. Twenty Five Percent (25%) of the Civil Penalty Allocation, or Three Hundred and Twelve Thousand and Three Hundred and Seventy-Five Dollars and Zero Cents ($312,375.00) (the “Aggrieved Employee Amount”) shall be paid to the Aggrieved Employees, which represents civil penalties payable to the Aggrieved Employees as compensation for disputed civil penalties that are allegedly owed on the Representative PAGA Claims during the PAGA Period to all alleged Aggrieved Employees described in the Lawsuit, to be distributed by a Settlement Administrator agreed upon by the Parties pursuant to the formula set out in paragraph 2.5 below. 2.5 The formula for distribution of the amount described in Section 2.4(b) is as follows: Each Aggrieved Employee shall be allocated a proportionate share of the Aggrieved Employee Amount based on the number of wage statements each Aggrieved Employee received during the PAGA Period. Defendant shall provide data to the Settlement Administrator establishing the number of wage statements each Aggrieved Employee received during the PAGA Period. The pro rata portion of the Aggrieved Employee Amount shall be determined by dividing the total number of wage statements issued during the PAGA Period into the Aggrieved Employee Amount to arrive at a value per wage statement for each Aggrieved Employee. The value per wage statement shall be multiplied by the number of wage statements issued to each Aggrieved Employee during the PAGA Period to calculate each Aggrieved Employee’s pro rata share of the Aggrieved Employee Amount. This figure will be known as the “Aggrieved Employee Settlement Award” (defined herein as “the amount of money allocated to each Aggrieved Employee”). 3. PAGA Settlement Administration. The Parties have agreed to select Phoenix Class Action Administration Solutions as the Settlement Administrator to administer the Settlement. All of the Settlement Administrator’s costs and fees shall be paid from the PAGA Settlement Amount. 3.1 Within fifteen (15) calendar days after the Entry of Order Approving PAGA Settlement, Defendant shall provide to the Settlement Administrator a spreadsheet, in a searchable electronic format, containing the following for each individual falling within the definition of Aggrieved Employee for the entire Settlement Period: (i) each Aggrieved Employee’s name, (ii) last known address, (iii) last known telephone number (if available), (iv) Social Security number, and (v) the number of Wage Statements {2841219.DOCX;} Page 3 of 9 received during the PAGA Period (the “Aggrieved Employee List”). The Aggrieved Employee List shall be held as private and confidential information, and shall not be shared with Plaintiff’s counsel or any third party by the Settlement Administrator without the express written consent of Defendant’s counsel of record and/or court order. 3.2 Within fifteen (15) calendar days after the Entry of Order Approving PAGA Settlement, Defendant shall transfer the PAGA Settlement Amount to the Settlement Administrator to affect disbursement of the PAGA Settlement Amount. 3.3 Within fourteen (14) calendar days of transfer of the PAGA Settlement Amount, the Settlement Administrator shall distribute such funds under the allocation plan set forth in Section 2 above. All Settlement checks sent to the Aggrieved Employees shall be accompanied with a Notice, attached hereto as Exhibit A, which shall provide a brief description of the Lawsuit and this Settlement. 3.4 As the Representative PAGA Claims are not a class action, the Parties agree that California Code of Civil Procedure § 384 shall not be applicable. Any checks uncashed after 6 months will escheat to the State of California’s Unclaimed Property Fund in the name of the Aggrieved Employee. The Settlement Administrator shall be responsible for administration of all unclaimed funds, including any and all reporting requirements proscribed by California law. 3.5 Within twenty (20) calendar days of distributing the PAGA Settlement Amount, the Settlement Administrator shall provide to the Parties, for filing with the Court, a declaration verifying, under oath, that the Settlement Administrator has affected disbursement of the PAGA Settlement Amount pursuant to the terms of this Agreement. 3.6 All notices, requests, demands and other communications required or permitted to be given pursuant to this Settlement shall be in writing and shall be delivered personally or mailed, postage prepaid, by first-class mail, to counsel of record at their respective addresses. 4. Judgment. As part of the Stipulation, Plaintiff’s Counsel shall petition the Court to enter an Order Approving Settlement and entering judgment thereon. The Parties shall also jointly request and reserve the Court’s continuing jurisdiction over the construction, interpretation, implementation, and enforcement of this Settlement in accordance with its terms, and over the administration and distribution of the settlement proceeds pursuant to California Code of Civil Procedure § 664.6. 5. Taxes. Candia understands and acknowledges that Defendant will not deduct any taxes or other withholdings from the Consideration described in Section 2.1 above and that he is fully responsible for all taxes, if any, to the Internal Revenue Service, California Franchise Tax Board, or other taxing authorities, pertaining to any payments received under this Agreement. Candia will receive an IRS Form 1099 for said sums. Plaintiff and each Aggrieved Employee bear full responsibility for the payment of any taxes or withholdings arising from the Aggrieved Employee Settlement Awards or enhancement payments paid to them. Neither Plaintiff’s Counsel nor counsel for Defendant intend anything contained herein to constitute advice regarding the taxability of any amount paid hereunder, nor shall it be relied upon as such. The {2841219.DOCX;} Page 4 of 9 tax issues for each Aggrieved Employee are unique, and each Aggrieved Employee is advised to obtain tax advice from his or her own advisor with respect to any payments resulting from this Settlement. Candia and each Aggrieved Employee shall indemnify and hold Defendant harmless for any tax liability, including penalties and interest, which may be assessed against Defendant and/or Plaintiff/Aggrieved Employees for failure to withhold taxes and/or make any other deductions from the Payment. 6. Release by Plaintiff on Behalf of the LWDA. Upon the approval by the Court of this Agreement, Plaintiff, individually and as the representative acting as a proxy or agent of the LWDA, a State of California Executive Branch Agency, in this Action, agrees to release Defendant, its joint employers, affiliates, subsidiaries, owners, members, partners, officers, directors, predecessors, successors, assigns, agents, shareholders, investors, insurers and legal representatives (“Released Parties”) for penalties under the California Private Attorneys’ General Act predicated on the violation of Labor Code § 204 based on the facts as alleged in the Complaint that accrued at any time during the PAGA Period (“Released Claims”). 6.1 The express purpose of this Agreement and the judgment to be entered by the Court following approval of this settlement is to forever bar Plaintiff, the LWDA, and any other individual or entity acting on behalf of or purporting to act on behalf of the LWDA from asserting any of the Released Claims in any future litigation. It is the intent of the Parties that, to the greatest extent provided by law, including under the holding of Arias v. Superior Court, 46 Cal. 4th 969, 986 (2009), the ability of Plaintiff, the State of California or any Aggrieved Employee to bring a PAGA claim on behalf of the LWDA is completely and forever foreclosed. Any Party to this Agreement may use the Agreement to assert that this settlement and the judgment to be entered by the Court following approval by this settlement bars any later-filed action asserting any of the Released Claims against any of the Released Parties at any time during the PAGA Period. 7. Release by Plaintiff Individually. In addition to the release addressed in Paragraph 6, Plaintiff generally releases all claims he has or may have against Defendant. Specifically, after receipt of the amount set forth in Paragraph 2.1, Plaintiff agrees to release and forever discharge all known and unknown claims against Defendant, any and all of their parent companies, joint employers, affiliates, subsidiaries, and each of their respective employees, officers, directors, agents, attorneys, administrators, insurers, representatives, successors, predecessors and assigns. The Parties also agree the Agreement shall be binding on Plaintiff and Defendantand each of their insurers, parent companies, affiliates, subsidiaries, predecessors, successors, assigns, employees, officers, directors, agents, attorneys, administrators, representatives, heirs, estates, and powers-of-attorney. Plaintiff will also generally release all known and unknown claims pursuant to California Civil Code § 1542, as set forth below. (the “Plaintiff’s Individual Released Claims”). 7.1 The Parties further agree by way of this Agreement that this Agreement shall be a full and final release of all of Plaintiff’s Individual Released Claims. Plaintiff knowingly and voluntarily waives any and all rights or benefits she may have under the terms of California Civil Code §1542, which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT {2841219.DOCX;} Page 5 of 9 THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. 7.2 Plaintiff waives any right or benefit he may have or has under Civil Code Section 1542, as set forth above, to the full extent Plaintiff may lawfully waive all such rights and benefits pertaining to the subject matter of this Agreement. Plaintiff acknowledges that he is aware he may hereafter discover facts in addition to or different from those Plaintiff now knows or believes to be true with respect to any actual or potential claims, including but not limited to the subject matter of this Agreement, and that it is Plaintiff’s intention to fully and forever settle and release all Plaintiff’s Individual Released Claims, disputes and differences, known or unknown, suspected or unsuspected, which do now exist, may exist or heretofore have existed, and that in furtherance of such intention the releases herein given shall be and remain in effect as full and complete general releases, notwithstanding the discovery or existence of any such additional or different facts. 8. Successors. This Agreement shall be binding upon, and inure to the benefit of, the Parties, and their heirs, representatives, executors, administrators, successors, insurers, and assigns, and shall inure to the benefit of each and all of the Released Parties, and to their heirs, representatives, executors, administrators, successors, and assignees. 9. Confidentiality. Other than information necessary to secure Court approval of this settlement or to advise aggrieved employees or the State about the Settlement, the Parties agree to keep confidential all matters relative to this Settlement, including the terms of the Settlement and the facts and circumstances leading up to it. If asked about the disputes between the Parties, the Parties shall provide no other statement than "the matter has been resolved" or "the matter has settled." The Parties may, however, discuss the terms of this Settlement with their spouses, attorneys, financial advisors, tax advisors, government agencies, and accountants, or with the aggrieved employees. Plaintiff represents and warrants that prior to signing this Agreement, he has not made any disclosures that would have been prohibited by this Agreement had they been made after the full execution of this Agreement. In the event that Plaintiff believes that he is legally obligated by statutory or regulatory requirements (including compulsory legal process), to make such disclosures, he shall so notify the opposing party in writing immediately, and in no event less than ten days prior to the date for disclosure. If it is not possible to do so at least 10 days in advance, Plaintiff will notify counsel for Defendant (Katie Collins, at (916) 558-6018), within 24 hours of receiving notice that he is so obligated. If Defendant takes any action to challenge such disclosure, Plaintiff shall defer making such disclosure until Defendant’s challenge is finally resolved, unless ordered by a Court to give the information notwithstanding Defendant’s challenge. In addition, Plaintiff’s counsel will not seek to legally compel such disclosures. The Parties understand that the covenant of nondisclosure contained in this Agreement is a material inducement for making this Settlement and that, for the breach thereof the Defendant will suffer irreparable harm for which damages would be an inadequate remedy. {2841219.DOCX;} Page 6 of 9 Neither Plaintiff, nor his attorneys, may report this settlement, even anonymously, to any jury or verdict reporting service. 10. Breach by Parties. In addition to any other rights the Parties have or may have under this Agreement, in the event of a breach by either party of any of the terms of this Agreement, the non-breaching Party shall be entitled, if it shall so elect, to institute legal proceedings to obtain damages for any such breach, or to enforce the specific performance of this Agreement by either party and to enjoin the other party from any further violation of this Agreement and to exercise such remedies cumulatively or in conjunction with all other rights and remedies provided by law. The Parties acknowledge, however, that the remedies at law for any breach by either party may be inadequate and that the non-breaching party shall be entitled to injunctive relief against the breaching party in the event of any breach. If the non-breaching party prevails in a proceeding for damages or injunctive relief, the breaching party agrees that the non- breaching party, in addition to other relief, shall be entitled to reasonable attorney fees, costs, and the expenses of litigation incurred by the non-breaching party in securing the relief granted by the Court. 11. No Attorneys’ Fees and Costs. Except as otherwise set forth in this Agreement, the Parties agree that they shall bear their own total respective costs and fees, including attorneys’ fees. 12. Agreement is Voluntary. Candia understands and agrees that he: 12.1 Has had a reasonable amount of time within which to consider the settlement terms memorialized in this Agreement before agreeing to them; 12.2 Has carefully read and fully understands all of the provisions of this Agreement; 12.3 Is, through this Agreement, releasing his Representative PAGA Claims he may have against any of the Released Parties; 12.4 Knowingly and voluntarily agrees to all of the terms set forth in this Agreement; 12.5 Knowingly and voluntarily intends to be legally bound by the same; and 12.6 Was represented by and consulted an attorney prior to agreeing to the terms of this Agreement. 13. No Representations. The Parties acknowledge that, except as expressly set forth herein, no representation of any kind or character has been made to induce the execution of this Agreement. 14. Ownership of Claims. The Parties represent that they have not transferred or assigned, or purported to transfer or assign, to any person or entity, any claim described in this Agreement. The Parties further agree to indemnify and hold harmless one another, and all of their present partners, officers, directors, employees against any and all claims based upon, arising out of, or in any way connected with any such actual or purported transfer or assignment. {2841219.DOCX;} Page 7 of 9 15. Severability. Should any provision in this Agreement be declared or determined to be illegal or invalid, the validity of the remaining parts, terms, or provisions shall not be affected thereby, and the illegal or invalid part, term, or provision shall be deemed not to be part of this Agreement, and all remaining provisions shall remain valid and enforceable. 16. Integration. This Agreement sets forth the entire agreement between the Parties and fully supersedes any and all prior agreements and understandings between the Parties pertaining to the subject matter of this Agreement. Any modifications in this Agreement must be in writing and signed by the Parties. 17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Furthermore, signatures delivered via facsimile or electronic transmission shall have the same force, validity and effect as the originals thereof. 18. Interpretation. This Agreement, and any ambiguities or uncertainties herein, shall be equally and fairly interpreted, and construed, without reference to the identity of the Party drafting this document, upon the express understanding and agreement that the Parties participated equally in the negotiation and preparation of this Agreement, or have had equal opportunity to do so. Accordingly, the Parties, and each of them, expressly waive the benefits of California Civil Code Section 1654, and any successor or amended statute. 19. Governing Law and Venue. This Agreement shall in all respects be interpreted, enforced and governed by and under the laws of the State of California, regardless of the conflicts of laws rules of any individual state. In addition, any action brought to enforce the provisions of this Agreement shall be commenced, prosecuted, and defended exclusively in the Superior Court of the State of California, County of Placer. 20. Captions And Headings. The section headings, captions, and titles used in this Agreement are intended solely for convenience of reference and shall not in any manner amplify, limit, modify or otherwise be used in the interpretation of any of the provisions hereof. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] {2841219.DOCX;} Page 8 of 9 PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES THE RELEASE OF PAGA REPRESENTATIVE CLAIMS AND THE RELEASE OF PLAINTIFF’S INDIVIDUAL RELEASED CLAIMS. Dated: ___________________________________ Bruce Candia Mechanics Bank, successor by merger of Rabobank, N.A. Dated: