Preview
18CV334378
Santa Clara — Civil I
EDWARD J. WYNNE (165819) Electronically Filed
ewynne@wynnelawfirm.com by Superior Court of CA,
GEORGE R. NEMIROFF (262058) County of Santa Clara,
gnemiroff@wynnelawfirm.com on 11/9/2020 4:02 PM
WYNNE LAW FIRM
Wood Island
Reviewed By: R. Walker
80 E. Sir Francis Drake Boulevard, Suite 3G Case #18CV334378
Larkspur, CA 94939 Envelope: 5266293
Telephone: (415) 461-6400
Facsimile: (415) 461-3900
BRYAN J. MCCORMACK (SBN 192418)
bryan@mcclawfirm.com
MCCORMACK LAW FIRM
80 E. Sir Francis Drake Blvd., Ste. 3G
Larkspur, CA 94939
10 Telephone: (415) 925-5161
Facsimile: (415) 461-3900
11
Attorneys for Plaintiff
1 Thompson Ly and the Class
13
14 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
i FOR THE COUNTY OF SANTA CLARA
16
17 THOMPSON LY, individually and on behalf Case No. 18CV334378
of all others similarly situated,
18 PLAINTIFF’S NOTICE OF MOTION
Plaintiff, AND MOTION FOR FINAL APPROVAL
19 OF CLASS ACTION SETTLEMENT
a
20
SAGE INTACCT, INC., and Does 1 through Date: December 10, 2020
21 10, inclusive, Time: 1:30 p.m.
Dept.: 1
22 Defendants.
Hon. Brian C. Walsh
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18cv334378
PLAINTIFF’S MOTION FOR FINAL APPROVAL
NOTICE OF MOTION AND MOTION
TO THE COURT AND ALL INTERESTED PARTIES:
PLEASE TAKE NOTICE THAT on December 10, 2020 at 1:30 p.m. or as soon thereafter
as counsel may be heard, in the courtroom of the Hon. Brian C. Walsh, Santa Clara County
Superior Court, located at 191 North First Street, San Jose, California, in Department 1, Plaintiff
Thompson Ly will and hereby does respectfully move the Court for preliminary approval of the
proposed class action and representative action settlement.
Plaintiff respectfully requests that the Court: (1) grant preliminary approval for the
proposed class action and representative action settlement; (2) grant conditional certification of
10 the proposed settlement class; (3) authorize the mailing of the proposed notice to the class of the
11 settlement; and, (4) schedule a “fairness hearing,” i.e., a hearing on the final approval of the
12 settlement.
13 Plaintiff makes this motion on the grounds that the proposed settlement is within the range
14 of possible final approval, and notice should, therefore, be provided to the Class. This Motion is
15 based upon this Notice of Motion and Motion for Preliminary Approval of Class Action
16 Settlement, the Memorandum of Points and Authorities in Support Thereof, the Declaration of
17 Edward J. Wynne, the Declaration of Brian J. McCormack, the Declaration of Settlement
18 Administrator Elizabeth Kruckenberg, any oral argument of counsel, the complete files and
19 records in the above-captioned matter, and such additional matters as the Court may consider.
20
21 Dated: November 9, 2020 WYNNE LAW FIRM
22
C47
23
Edward J. Wynne
24 Class Counsel
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PLAINTIFF’S MOTION FOR FINAL APPROVAL
TABLE OF CONTENTS
INTRODUCTION
IL. STATEMENT OF THE CASE.
A Procedural Statement .
B Settlement Administration 3
The Monetary Recovery for Each Class Member Is Within The Range e
Reasonableness. ..........sscssecssseeseesesseeseeseeseesesesseesssessesseseeseeseeseenees
1 The Amount Realized Is Superior to Other Similar Cases
a. Amount Recovered in Settlement ..........
b Amount Recovered in Similar Litigation..........
10 The Settlement Is Reasonably Tailored to Each Class Member’
Claim
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IIL. FINAL SETTLEMENT APPROVAL IS APPROPRIATE.
12
A The Settlement Is Entitled To A Presumption Of Fairness
13 1 The Settlement Was Reached Through Arm’s-Length
Negotiations
14
Substantial Investigation Has Been Completed to Warrant
15 Settlement
16 3 Class Counsel is Experienced and Endorses the Settlement 10
4 There Are No Objections to the Settlement 10
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B The Risk and Expense of Further Litigation 10
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IV. CONCLUSION.............. 11
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PLAINTIFF’S MOTION FOR FINAL APPROVAL
TABLE OF AUTHORITIES
Federal Cases
Boyd vy. Bechtel Corp.,
(N.D. Cal. 1979) 485 F. Supp. 610
Branco et al. v. Orchard Supply Co LLC
18-cv-00531-EJD
Ellis v. Naval Air Rework Facility
(N. D Cal. 1980)
87 F.R.D. 15
Fisher Bros. v. Cambridge-Lee Industries.
(E.D. Pa. 1985) 630 F.Supp. 482
In re Warner Communications Sec. Litig.,
10 (S.D.N.Y. 1985) 618 F.Supp. 735
11 Linney v. Cellular Alaska Partnership (9th Cir. 1998) 151 F.3d 1234
12 Officers
for Justice v. Civil Service Com.
(9th Cir. 1981) 688 F.2d 615 8,9
13
State Cases
14
Brinkel v. Westamerica Bank,
15 Marin Superior Court Case No. CIV 1303112
16 Briones v. Patelco Credit Union,
Alameda Superior Court Case No. RG16805680
17
Dunk v. Ford Motor Co.
18 (1996) 48 Cal.App.4th 1794 6, 7, 8, 1
19 Duran v. US Bank,
59 Cal.4th 1 (2014)
20
Malibu Outrigger Bd. of Governors. v.” Superior CCourt
21 (1980) 103 Cal.App.3d. 573...
22 Mallick v. Superior Court.
(1979) 89 Cal.App.3d 434
23
Wershba v. Apple Computer,
24 (2001) 91 Cal.App.4th 224
25 Statutes, Rules & Regulation:
26 Business & Professions Code,
§ 17200
27
Cer
28 § 382
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18CV334378
PLAINTIFF’S MOTION FOR FINAL APPROVAL,
C.CP.,
§ 1781(f)
Fed. R. Civ. P.,
Rule 23
Labor Code,
§ 203
Labor Code,
§ 510
Labor Code,
§ 1194
10
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12
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15
16
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PLAINTIFF’S MOTION FOR FINAL APPROVAL.
I. INTRODUCTION
The parties have achieved an excellent result in this litigation, embodied in the Joint
Stipulation of Class Action Settlement and Release (“Stipulation of Settlement”). The proposed
settlement provides substantial benefits to the class comprised of current and former Sales
Develop Representatives employed by defendant Sage Intacct, Inc. (“Defendant”) in California
at any time from September 12, 2014 to July 31, 2018 and Corporate Account Managers
employed by Defendant in California at any time from September 12, 2014 to August 7, 2020
(collectively, “Class Members” and the “Class Period”). The settlement is the product of
aggressive and determined efforts of Class Counsel to obtain the best possible result for the class
members.
10
Notice was given to the class on August 21, 2020. Notably, not a single objection has bee:
11
eceived and just one class member opted-out. These facts speak volumes about the fairness,
12
reasonableness, and adequacy of the settlement. The settlement of this action is fair, reasonable
13
and adequate and in the best interests of the class. Accordingly, final approval should be granted.
14
Il. STATEMENT OF THE CASE
15
A Procedural Statement
16
On September 12, 2018, Plaintiff Thompson Ly filed this action against Defendant in the
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Santa Clara County Superior Court alleging: (1) failure to pay compensation for all hours worked
18
pursuant to Labor Code §§ 510, 1194 and the applicable IWC Order; (2) penalties pursuant to
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Labor Code § 203; and, (3) violations of Business & Professions Code § 17200, et seq. The
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lawsuit was styled as a class action on behalf of California Sales Development Representatives
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(“SDR(s)”) and/or Corporate Account Managers (“CAM(s)”) under C.C.P. § 382. After the
22
matter was at issue, the parties began to engage in formal and informal discovery to understand
23
the nature of the allegations and the scope of potential liability. (Declaration of Edward J. Wynne
24
in Support of Final Approval, Award of Attorneys’ Fees and Costs, and Class Representative
25
Enhancement Award (“Decl. of Wynne”), {| 12.)
26
On January 4, 2019, the parties attended their initial Case Management Conference. Sage
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Intacct answered Plaintiff's Complaint on January 25, 2019. (/d.)
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PLAINTIFF’S MOTION FOR FINAL APPROVAL
On March 6, 2019, Plaintiff served special interrogatories and document requests on
Defendant. After being granted extensions, on May 10, 2019, Defendant served its responses to
Plaintiff's discovery. (Decl. of Wynne, § 13.)
On May 30, 2019, Defendant served documents requests on Plaintiff. On July 5, 2019,
Plaintiff served his responses to Defendant’s document requests and produced documents. (/d.)
After serving responses to the discovery, the parties required the Court’s intervention to
resolve multiple, contentious discovery disputes. Both Plaintiff and Defendant exchanged
multiple meet and confer letters communicating their respective positions. Unable to informally
resolve these disputes themselves, on August 14, 2019, the parties conducted an in-person
10 discovery conference at the Santa Clara Superior Court. The parties reached an agreement and
11 stipulated to the entry of a protective order. Defendant thereafter produced approximately 1,200
12 documents. The parties then disagreed regarding the adequacy of each party’s document
13 production. The parties then exchanged multiple meet and confer letters. Once again unable to
14 resolve the discovery disputes themselves, on November 4, 2019, the parties had another in-
15 person discovery conference at the Superior Court. Following the second discovery conference,
16 Defendant produced approximately 11,000 more documents to Plaintiff. Plaintiff agreed to delete
17 confidential information he retained after his termination and produce certain electronically stored
18 information in his possession, custody, or control. In the course of meeting and conferring, both
19 Plaintiff and Defendant prepared and served numerous amended discovery responses. (Decl. of]
20 Wynne, § 14.)
21 On November 19, 2019, Defendant conducted the deposition of Plaintiff Thompson Ly,
22 but did not complete it that day. (Id. at J 15.)
23 In January 2020, the parties began discussing the possibility of mediation. On January 17,
24 2020, the parties submitted a stipulation to stay the case and vacate case deadlines so the parties
25 could mediate the case. The Court granted the order on January 28, 2020. On April 15, 2020, in
26 light of the COVID-19 pandemic, the parties conducted a Zoom® mediation before well-respected
27 mediator Francis “Tripper” Ortman III. In preparation for the mediation, Defendant provided
28 substantial information about the claims alleged by Plaintiff, including but not limited to, payroll
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data, Salesforce data and parking badge data. In short, Defendant provided relevant data for|
Plaintiff to make informed and reasoned decisions about the valuation of the claims alleged.
Ultimately, the parties were able to reach an agreement in principle after mediating late into the
evening, and the parties memorialized the agreement in writing. (Decl. of Wynne, {| 16.)
On June 5, 2020, Plaintiff filed his motion for Preliminary Approval of Class Action
Settlement. On August 6, 2020, Plaintiff filed a Supplemental Declaration of Edward J. Wynne
in support of Preliminary Approval. (Decl. of Wynne, {] 17.)
On August 7, 2020, the Court granted preliminary approval of the settlement. (Id. at J 17.)
B Settlement Administration
Pursuant to the Court’s Order Granting Preliminary Approval, the Court appointed
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Phoenix Settlement Administrators as the Settlement Administrator. (Declaration of Elizabeth
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Kruckenberg Regarding Notice and Settlement Administration (“Kruckenberg Decl.”), { 1.)
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On August 14, 2020, Defendant provided the Settlement Administrator with the class data
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including class member contact information and employment information. (Kruckenberg Decl.,
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13)
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On August 20, 2020, Defendant deposited $1,100,000.00 into the Qualified Settlement
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Fund. (Kruckenberg Decl., { 4.) The amount of interest earned to-date is $134.40. (/d.)
17
On August 21, 2020, the Settlement Administrator caused the notice to be sent to the class
18 via first-class mail after updating the class contact information through an NCOA search.
19 (Kruckenberg Decl., § 5.) During the notice period, Phoenix received 1 return as undeliverable
20 and was able to locate new address for that return which was re-mailed. (Kruckenberg Decl., §
21 7.) There are no undeliverable Notice Packets. (Kruckenberg Decl., { 8.)
22 The Settlement Administrator received zero requests for adjustment. (Kruckenberg Decl.,
23 4] 11.) One person requested to be excluded. (Kruckenberg Decl., 4 9.)
24 The Settlement Administrator received no objections to the settlement. (Kruckenberg
25 Decl., 4 10.)
26 Cc. The Monetary Recovery for Each Class Member Is Within the Range of
Reasonableness.
27
After deductions for attorney’s fees and costs, the costs of settlement administration, and
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the class representative payments, the Net Settlement Amount is $706,695. (Kruckenberg Decl.,
412)
The Settlement Administrator reports that, on a net basis, the average payout is $8,030,
smallest payout is $216, and the highest is $30,718. (Kruckenberg Decl., | 12.)
The settlement consideration to be paid by the Defendant consists of the following as more
particularly described in the Settlement Agreement:
. one payment by Defendant to currently and formerly employed Class
Members of $1,100,000 from the Settlement Fund for distribution to Class
Members, less payments of attorneys’ fees and costs up to $381,666, class
representative enhancement of $7,500 and payment of claims administration of
$5,750;
10 e Interest on the Gross Settlement Fund to the Class and Class Counsel which
11 has generated an additional $134 through November 6, 2020;
e There is no reversion to Defendant.
12
e The settlement is a fixed common fund settlement. All Class Members shall
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receive mailed checks. Any checks that are uncashed shall be deposited with
14 the State in the class member’s name as unclaimed wages.
15 1. The Amount Realized Is Superior to Other Similar Cases
16 a. Amount Recovered in Settlement
17 The gross settlement amount is $1,100,000 with net amount paid out to the Class being
18 $706,695 after deductions for fees, litigation expenses, a class representative enhancement award
19 and settlement administration costs. According to the Settlement Administrator, there are 7,087
20 workweeks at issue in the class period. Based on the net amount to be paid to the Class, divided
21 by the number of workweeks in the class period, Class Members can expect to receive $99.68 per
22 workweek. . (Decl. of Wynne, { 19.)
23 Plaintiff's damages estimates are largely based on Defendant’s own payroll, PTO,
24 Salesforce, and parking lot badge in/out data. Because many class members did not consistently’
25 use the parking lot, and Salesforce does not capture all their work time, some reasonable
26 estimations were made. Plaintiff did not calculate any damages for any member during any month
27 he or she earned more in commissions than base pay.
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Plaintiff determined that Class Members worked 47.6 hours per week on average and
earned $50.54 per hour on average in salary and commissions as a premium rate. At the time of|
mediation, Plaintiff determined that Class Members worked 6,679 workweeks during the period
through March 31, 2020.1 (Decl. of Wynne, {| 21.) Based on these figures, Plaintiff's damages
calculations were as follows:
CLAIM AMOUNT
Overtime (and double time) $2,565,730
Interest $ 830,941
Waiting time penalties $ 649,180
TOTAL $4,045,851
10 (Id.)
11 Plaintiff performed a person-by-person calculation of Defendant’s potential exposure for
12 the claims alleged in the complaint. The analysis is marked and attached to the Declaration of|
13 Edward J. Wynne as Exhibit 1.
14 Based on Plaintiff's analysis, Plaintiff determined that a settlement of $1,100,000 which
15 represents approximately 27% of Defendant’s potential exposure for the claims alleged in the
16 complaint (not including attorneys’ fees), is fair, reasonable and adequate and in the best interests
17 of the class in light of the risk factors discussed in the Motion for Preliminary Approval. (Decl.
18 of Wynne, {[ 23.)
19 b Amount Recovered in Similar Litigation
20 In Class Counsel’s experience, this settlement compares favorably to other recently-
21 approved _ settlements of class actions alleging non-payment of overtime based on
22 misclassification under the [WC exemptions. As set forth above, Class Members are set to receive
23 an estimated $104.93 per workweek. In Brinkel v. Westamerica Bank, Marin Superior Court Case
24 No. CIV 1303112, for example, the class members in that case received $70.63 per workweek. In
25 Briones v. Patelco Credit Union, Alameda Superior Court Case No. RG16805680, the class
26 members in that case received $78.91 per workweek. In Branco et al. y. Orchard Supply Co LLC,
27
28 ' The actual workweeks have increased slightly from Plaintiff's original calculations.
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1 18-cv-00531-EJD, the class members in that case received $74.19 per workweek. The amount per
workweek in this case vastly exceeds these recently-approved settlements. Plaintiff submits that
the settlement amount and payout to Class Members is eminently fair, reasonable and adequate
in light of the other factors above and also considering that this settlement will be completely paid
out, i.e., the settlement is non-reversionary. (Decl. of Wynne, { 24.)
2. The Settlement Is Reasonably Tailored to Each Class Member’s Claim
The essential terms of the monetary settlement between Plaintiff and Defendant provides
for a settlement payment to each class member according to the amount of time each class member
was employed by Defendant as an SDR of CAM during the class period. The settlement is
reasonably tailored to each class member’s claim in that it is primarily based on the number of|
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weeks worked by each class member in a covered position during the statutory time covered by
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the complaint. Thus, while the monetary settlement provides for class-wide relief, it is also
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designed to take into consideration each class member’s individual situation so as to maximize
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the equity of the distribution without overwhelming the administration of the settlement.
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Til. FINAL SETTLEMENT APPROVAL IS APPROPRIATE
15
Pursuant to both state and federal rules of civil procedure, “a class action shall not be
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dismissed or compromised without the approval of the court, and notice of the proposed dismissal
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or compromise shall be given to all members of the class in such manner as the court directs. . .”
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CCP § 1781(f); Fed. R. Civ. P. 23e The trial court must determine whether a class action
19 settlement is fair and reasonable, and has a broad discretion to do so. That discretion is to be
20 exercised through the application of several well-recognized factors. The list, which “ ‘is not
21 a”
exhaustive and should be tailored to each case, includes “ ‘the strength of plaintiffs’ case, the
22 tisk, expense, complexity and likely duration of further litigation, the risk of maintaining class
23 action status through trial, the amount offered in settlement, the extent of discovery completed
24 and the stage of the proceedings, the experience and views of counsel, the presence of a
25 governmental participant, and the reaction of the class members to the proposed settlement. >»
26 Kullar vy. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 128 (citing Dunk v. Ford Motor
27 Co. (1996) 48 Cal. App.4th 1794, 1801.)
In Kullar, the court pointed out that “neither Dunk ... nor any other case suggests that the
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PLAINTIFF'S MOTION FOR FINAL APPROVAL
court may determine the adequacy of a class action settlement without independently satisfying
itself that the consideration being received for the release of the class members’ claims is
reasonable in light of the strengths and weaknesses of the claims and the risks of the particular
litigation.” Kullar, supra at 129. As further stated by the Court in Kullar:
The court undoubtedly should give considerable weight to the competency and
integrity of counsel and the involvement ofa neutral mediator in assuring itself
that a settlement agreement represents an arm’s-length transaction entered
without self-dealing or other potential misconduct. While an agreement reached
under these circumstances presumably will be fair to all concerned, particularly
when few of the affected class members express objections, in the final analysis
it is the court that bears the responsibility to ensure that the recovery represents
areasonable compromise, given the magnitude and apparent merit of the claims
being released, discounted by the risks and expenses of attempting to establish
10
and collect on those claims by pursuing the litigation. ‘The court has a fiduciary
11 responsibility as guardians of the rights of the absentee class members when
deciding whether to approve a settlement agreement.
12
Kullar at 129.
13
In discussing the trial court’s duty to determine the sufficiency of the proposed settlement,
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the court in Kullar went on to determine that:
15
To make that determination, “‘the factual record before the ... court must be
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sufficiently developed,’ “and the initial presumption to which Dunk refers “
17 ‘must then withstand the test of the plaintiffs’ likelihood of success.’” (/bid.)
Again, “““The most important factor is the strength of the case for plaintiffs on
18 the merits, balanced against the amount offered in settlement.
19 (Id.)
20 In practical terms, the settlement of a class action follows three parts: (1) preliminary
21 approval of the proposed settlement; (2) notice to class members, and (3) a final approval hearing
22 or “Fairness Hearing” at which evidence and argument may be heard on the fairness, adequacy’
23 and reasonableness of the settlement. Here, the Court has given preliminary approval of the
24 settlement, notice has been delivered to all class members by mail, and the claims procedure prior|
25 to final calculations and distribution has been completed.
26 A The Settlement Is Entitled To A Presumption Of Fairness
27 A presumption of fairness exists where: (1) The settlement is reached through arm’s-
length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to
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PLAINTIFF'S MOTION FOR FINAL APPROVAL
act intelligently; (3) counsel is experienced in similar litigation; and, (4) the percentage of|
objectors is small. Dunk v. Ford Motor Company, supra, 48 Cal.App.4th at 1802.
To prevent fraud, collusion or unfairness to the class, the settlement or dismissal of a class
action requires court approval. Malibu Outrigger Bd. of Governors. v. Superior Court (1980) 103
Cal.App.3d. 573, 578-579. The purpose of the requirement is the protection of those class
members, including the named plaintiffs, whose rights may not have been given due regard by
the negotiating parties. Officers for Justice v. Civil Service Com. (9th Cir. 1981) 688 F.2d 615,
624. The trial court has broad powers to determine whether a proposed settlement in a class action
is fair. Mallick v. Superior Court (1979) 89 Cal.App.3d 434.
At the Final Approval Hearing the court should consider the relevant factors, such as the
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strength of the plaintiff's case, the risk, expenses, complexity and likely duration of further]
11
litigation, the risk of maintaining class action status through trial, the amount offered in
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settlement, the extent of discovery completed and the stage of the proceedings, the experience
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and views of counsel, the presence of a governmental participant and the reaction of the class
14
members to the proposed settlement. Officers for Justice v. Civil Service Com., supra, 688 F.2d
15 at 624. “This list is not exhaustive and should be tailored to each case. Due regard should be
16 given to what is otherwise a private consensual agreement between the parties.” Dunk v. Ford
17 Motor Company, supra, 48 Cal.App.4th at 1801.
18 1. The Settlement Was Reached Through Arm’s-Length Negotiations
19 This settlement was reached through arm’s-length negotiations between experienced
20 counsel. “The merits of the underlying class claims are not a basis for upsetting the settlement of|
21 a class action.” Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 246. A “proposed
22 settlement is not to be judged against a hypothetical or speculative measure of what might have
23 been achieved had plaintiffs prevailed at trial.” Jd. The court added,
24 [A] settlement need not obtain 100 percent of the damages sought in order to
be fair and reasonable...Compromise is inherent and necessary in the
25 settlement process. Thus, even if ‘the relief afforded by the proposed settlement
is substantially narrower than it would be if the suits were to be successfully
26
litigated,’ this is no bar to a class settlement because ‘the public interest may
27 indeed be served by a voluntary settlement in which each side gives ground in
the interest of avoiding litigation.’
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1 Wershba, 91 Cal.App.4th at 250.
Similarly, in Linney v. Cellular Alaska Partnership (9th Cir. 1998) 151 F.3d 1234, 1242
the court observed:
Appellants offer nothing more than speculation about what damages ‘might
have been’ won had they prevailed at trial. This court has aptly held that ‘it is
the very uncertainty of outcome in litigation and avoidance of wasteful and
expensive litigation that induce consensual settlements. The proposed
settlement is not to be judged against a hypothetical or speculative measure of
what might have been achieved by the negotiators.’ Officers for Justice v. Civil
Serv. Comm’n., 688 F.2d at 625. Thus, ‘the very essence of a settlement is
compromise, “a yielding of absolutes and an abandoning of highest hopes. 2
This settlement was the result of intense settlement negotiations through a professional
10
mediator. In preparation for the mediation, Defendant provided key material facts regarding job
11
codes and titles, number of employees, work weeks, Salesforce data, parking and badge data, pay
12
data, time off data, policies and procedures, and job descriptions. Previously, Plaintiffs had
13
engaged in extensive informal and formal discovery including receiving over 12,000 documents
14
consisting of policies and procedures, training materials, emails, personnel and payroll files, and
15
call sheets. (Decl. of Wynne, § 16.)
16
The parties attended the all-day mediation facilitated by experienced mediator Tripper'
17
Ortman on April 15, 2020. Ultimately, the parties were able to reach an agreement in principle
18
after mediating late into the evening, and the parties memorialized the agreement in writing.
19
(Decl. of Wynne, ¥ 16.)
20
2. Substantial Investigation Has Been Completed to Warrant Settlement
21
The stage of the proceedings and the amount of investigation completed is an important
22
factor that the courts consider in determining the fairness, reasonableness, and adequacy of a
23 settlement. Jn re Warner Communications Sec. Litig. (S.D.N.Y. 1985) 618 F.Supp. 735, 741; Ellis
24 v. Naval Air Rework Facility (N. D Cal. 1980) 87 F.R.D. 15, 18; Boyd v. Bechtel Corp. (N.D. Cal.
25 1979) 485 F.Supp. 610, 616-17.
26 As noted above, the parties conducted extensive informal and formal discovery.
27 Additionally, Defendant provided detailed data on each class member’s compensation and dates
28 of employment. Accordingly, “the parties certainly have a clear view of the strengths and
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weaknesses of their cases.” Warner Communications, 618 F Supp. at 745; Ellis, 87 F.R.D. at 18;
Boyd, 485 F. Supp. at 616-17.
3. Class Counsel is Experienced and Endorses the Settlement
As detailed in the Motion for Preliminary Approval, experienced counsel operating at
arm’s-length has weighed all of the risk factors and endorses the proposed settlement. The view
of the attorneys actively conducting the litigation is “entitled to significant weight.” Fisher Bros.
v. Cambridge-Lee Industries, Inc. (E.D. Pa. 1985) 630 F.Supp. 482, 488; see also, Ellis, 87 F.R.D.
at 18; Boyd, 485 F. Supp. at 616-17.
Class Counsel has extensive wage and hour class action experience. (Decl. of Wynne, {J
2-11.) Thus, Class Counsel is experienced and qualified to evaluate the class claims and viability
10
of the defenses. Class Counsel is satisfied that the recovery for each class member is fair and
11
reasonable taking into consideration the potential recovery as compared to the actual recovery,
12
the amounts received in other similar expense reimbursement cases, the stage of the litigation
13
when the settlement was reached, the risks inherent in any litigation and the specific risks in this
14
case, and the reasonable tailoring of each class member’s claim to the amounts received. This
15 settlement is fair, adequate and reasonable and in the best interests of the Class. (Decl. of Wynne,
16 9 40-42.)
17 4. There Are No Objections to the Settlement
18 Perhaps the most significant endorsement for the proposed settlement in this case is the
19 fact that not a single class member has objected to any aspect of the proposed settlement. Class
20 Members were specifically provided with the option of objecting to the terms of the Settlement
21 and not a single objection has been received. The final factor in Dunk is that the percentage of|
22 objectors is small. Here, there are no objections. In addition, only one individual out of 89 has
23 opted-out of the settlement representing just .01% of the class. This Court should properly
construe the lack of any expressed opposition to the settlement as a very strong indicator that the
24
class members view the settlement as fair, adequate and reasonable.
25
B. The Risk and Expense of Further Litigation
26
The risks, complexity, and expenses of this action and the expected duration of this
27
litigation all weigh in favor of final approval. Given the uncertain nature and fluid landscape
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concerning how class action cases such as this can properly be certified and tried, Plaintiff faced
risk that, even assuming a judgment in his favor, the judgment would be reversed and/or remanded
on any number of grounds by a reviewing court.
As set forth in Plaintiffs’ Motion for Preliminary Approval, Class Counsel’s personal
experience in Duran v. US Bank (2014) 59 Cal.4th 1 perhaps best exemplifies the risk inherent in
complex litigation. In sum, after getting the case certified and prevailing at trial, the judgment
was reversed by the Court of Appeal, affirmed by the Supreme Court, and plaintiffs’ second effort
at certification in the Superior Court was denied (and affirmed by the Court of Appeal) after 17
years of hard-fought litigation. (Decl. of Wynne, § 4.)
IV. CONCLUSION
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The Stipulation for Settlement provides substantial benefits to the class members that are
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fair, reasonable and adequate. The standards for final approval have been met. Accordingly, Class
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Counsel respectfully requests that the Court grant final approval of the Settlement.
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Dated: November 9, 2020 WYNNE LAW FIRM
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Edward J. Wynne
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Class Counsel
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18CV334378
PLAINTIFF'S MOTION FOR FINAL APPROVAL
Preview
18CV334378 Santa Clara — Civil I EDWARD J. WYNNE (165819) Electronically Filed ewynne@wynnelawfirm.com by Superior Court of CA, GEORGE R. NEMIROFF (262058) County of Santa Clara, gnemiroff@wynnelawfirm.com on 11/9/2020 4:02 PM WYNNE LAW FIRM Wood Island Reviewed By: R. Walker 80 E. Sir Francis Drake Boulevard, Suite 3G Case #18CV334378 Larkspur, CA 94939 Envelope: 5266293 Telephone: (415) 461-6400 Facsimile: (415) 461-3900 BRYAN J. MCCORMACK (SBN 192418) bryan@mcclawfirm.com MCCORMACK LAW FIRM 80 E. Sir Francis Drake Blvd., Ste. 3G Larkspur, CA 94939 10 Telephone: (415) 925-5161 Facsimile: (415) 461-3900 11 Attorneys for Plaintiff 1 Thompson Ly and the Class 13 14 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA i FOR THE COUNTY OF SANTA CLARA 16 17 THOMPSON LY, individually and on behalf Case No. 18CV334378 of all others similarly situated, 18 PLAINTIFF’S NOTICE OF MOTION Plaintiff, AND MOTION FOR FINAL APPROVAL 19 OF CLASS ACTION SETTLEMENT a 20 SAGE INTACCT, INC., and Does 1 through Date: December 10, 2020 21 10, inclusive, Time: 1:30 p.m. Dept.: 1 22 Defendants. Hon. Brian C. Walsh 23 24 25 26 27 28 18cv334378 PLAINTIFF’S MOTION FOR FINAL APPROVAL NOTICE OF MOTION AND MOTION TO THE COURT AND ALL INTERESTED PARTIES: PLEASE TAKE NOTICE THAT on December 10, 2020 at 1:30 p.m. or as soon thereafter as counsel may be heard, in the courtroom of the Hon. Brian C. Walsh, Santa Clara County Superior Court, located at 191 North First Street, San Jose, California, in Department 1, Plaintiff Thompson Ly will and hereby does respectfully move the Court for preliminary approval of the proposed class action and representative action settlement. Plaintiff respectfully requests that the Court: (1) grant preliminary approval for the proposed class action and representative action settlement; (2) grant conditional certification of 10 the proposed settlement class; (3) authorize the mailing of the proposed notice to the class of the 11 settlement; and, (4) schedule a “fairness hearing,” i.e., a hearing on the final approval of the 12 settlement. 13 Plaintiff makes this motion on the grounds that the proposed settlement is within the range 14 of possible final approval, and notice should, therefore, be provided to the Class. This Motion is 15 based upon this Notice of Motion and Motion for Preliminary Approval of Class Action 16 Settlement, the Memorandum of Points and Authorities in Support Thereof, the Declaration of 17 Edward J. Wynne, the Declaration of Brian J. McCormack, the Declaration of Settlement 18 Administrator Elizabeth Kruckenberg, any oral argument of counsel, the complete files and 19 records in the above-captioned matter, and such additional matters as the Court may consider. 20 21 Dated: November 9, 2020 WYNNE LAW FIRM 22 C47 23 Edward J. Wynne 24 Class Counsel 25 26 27 28 18cv334378 PLAINTIFF’S MOTION FOR FINAL APPROVAL TABLE OF CONTENTS INTRODUCTION IL. STATEMENT OF THE CASE. A Procedural Statement . B Settlement Administration 3 The Monetary Recovery for Each Class Member Is Within The Range e Reasonableness. ..........sscssecssseeseesesseeseeseeseesesesseesssessesseseeseeseeseenees 1 The Amount Realized Is Superior to Other Similar Cases a. Amount Recovered in Settlement .......... b Amount Recovered in Similar Litigation.......... 10 The Settlement Is Reasonably Tailored to Each Class Member’ Claim 11 IIL. FINAL SETTLEMENT APPROVAL IS APPROPRIATE. 12 A The Settlement Is Entitled To A Presumption Of Fairness 13 1 The Settlement Was Reached Through Arm’s-Length Negotiations 14 Substantial Investigation Has Been Completed to Warrant 15 Settlement 16 3 Class Counsel is Experienced and Endorses the Settlement 10 4 There Are No Objections to the Settlement 10 17 B The Risk and Expense of Further Litigation 10 18 IV. CONCLUSION.............. 11 19 20 21 22 23 24 25 26 27 28 1 18CV334378 PLAINTIFF’S MOTION FOR FINAL APPROVAL TABLE OF AUTHORITIES Federal Cases Boyd vy. Bechtel Corp., (N.D. Cal. 1979) 485 F. Supp. 610 Branco et al. v. Orchard Supply Co LLC 18-cv-00531-EJD Ellis v. Naval Air Rework Facility (N. D Cal. 1980) 87 F.R.D. 15 Fisher Bros. v. Cambridge-Lee Industries. (E.D. Pa. 1985) 630 F.Supp. 482 In re Warner Communications Sec. Litig., 10 (S.D.N.Y. 1985) 618 F.Supp. 735 11 Linney v. Cellular Alaska Partnership (9th Cir. 1998) 151 F.3d 1234 12 Officers for Justice v. Civil Service Com. (9th Cir. 1981) 688 F.2d 615 8,9 13 State Cases 14 Brinkel v. Westamerica Bank, 15 Marin Superior Court Case No. CIV 1303112 16 Briones v. Patelco Credit Union, Alameda Superior Court Case No. RG16805680 17 Dunk v. Ford Motor Co. 18 (1996) 48 Cal.App.4th 1794 6, 7, 8, 1 19 Duran v. US Bank, 59 Cal.4th 1 (2014) 20 Malibu Outrigger Bd. of Governors. v.” Superior CCourt 21 (1980) 103 Cal.App.3d. 573... 22 Mallick v. Superior Court. (1979) 89 Cal.App.3d 434 23 Wershba v. Apple Computer, 24 (2001) 91 Cal.App.4th 224 25 Statutes, Rules & Regulation: 26 Business & Professions Code, § 17200 27 Cer 28 § 382 -ii- 18CV334378 PLAINTIFF’S MOTION FOR FINAL APPROVAL, C.CP., § 1781(f) Fed. R. Civ. P., Rule 23 Labor Code, § 203 Labor Code, § 510 Labor Code, § 1194 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - tii- 18CV334378 PLAINTIFF’S MOTION FOR FINAL APPROVAL. I. INTRODUCTION The parties have achieved an excellent result in this litigation, embodied in the Joint Stipulation of Class Action Settlement and Release (“Stipulation of Settlement”). The proposed settlement provides substantial benefits to the class comprised of current and former Sales Develop Representatives employed by defendant Sage Intacct, Inc. (“Defendant”) in California at any time from September 12, 2014 to July 31, 2018 and Corporate Account Managers employed by Defendant in California at any time from September 12, 2014 to August 7, 2020 (collectively, “Class Members” and the “Class Period”). The settlement is the product of aggressive and determined efforts of Class Counsel to obtain the best possible result for the class members. 10 Notice was given to the class on August 21, 2020. Notably, not a single objection has bee: 11 eceived and just one class member opted-out. These facts speak volumes about the fairness, 12 reasonableness, and adequacy of the settlement. The settlement of this action is fair, reasonable 13 and adequate and in the best interests of the class. Accordingly, final approval should be granted. 14 Il. STATEMENT OF THE CASE 15 A Procedural Statement 16 On September 12, 2018, Plaintiff Thompson Ly filed this action against Defendant in the 17 Santa Clara County Superior Court alleging: (1) failure to pay compensation for all hours worked 18 pursuant to Labor Code §§ 510, 1194 and the applicable IWC Order; (2) penalties pursuant to 19 Labor Code § 203; and, (3) violations of Business & Professions Code § 17200, et seq. The 20 lawsuit was styled as a class action on behalf of California Sales Development Representatives 21 (“SDR(s)”) and/or Corporate Account Managers (“CAM(s)”) under C.C.P. § 382. After the 22 matter was at issue, the parties began to engage in formal and informal discovery to understand 23 the nature of the allegations and the scope of potential liability. (Declaration of Edward J. Wynne 24 in Support of Final Approval, Award of Attorneys’ Fees and Costs, and Class Representative 25 Enhancement Award (“Decl. of Wynne”), {| 12.) 26 On January 4, 2019, the parties attended their initial Case Management Conference. Sage 27 Intacct answered Plaintiff's Complaint on January 25, 2019. (/d.) 28 1 18CV334378 PLAINTIFF’S MOTION FOR FINAL APPROVAL On March 6, 2019, Plaintiff served special interrogatories and document requests on Defendant. After being granted extensions, on May 10, 2019, Defendant served its responses to Plaintiff's discovery. (Decl. of Wynne, § 13.) On May 30, 2019, Defendant served documents requests on Plaintiff. On July 5, 2019, Plaintiff served his responses to Defendant’s document requests and produced documents. (/d.) After serving responses to the discovery, the parties required the Court’s intervention to resolve multiple, contentious discovery disputes. Both Plaintiff and Defendant exchanged multiple meet and confer letters communicating their respective positions. Unable to informally resolve these disputes themselves, on August 14, 2019, the parties conducted an in-person 10 discovery conference at the Santa Clara Superior Court. The parties reached an agreement and 11 stipulated to the entry of a protective order. Defendant thereafter produced approximately 1,200 12 documents. The parties then disagreed regarding the adequacy of each party’s document 13 production. The parties then exchanged multiple meet and confer letters. Once again unable to 14 resolve the discovery disputes themselves, on November 4, 2019, the parties had another in- 15 person discovery conference at the Superior Court. Following the second discovery conference, 16 Defendant produced approximately 11,000 more documents to Plaintiff. Plaintiff agreed to delete 17 confidential information he retained after his termination and produce certain electronically stored 18 information in his possession, custody, or control. In the course of meeting and conferring, both 19 Plaintiff and Defendant prepared and served numerous amended discovery responses. (Decl. of] 20 Wynne, § 14.) 21 On November 19, 2019, Defendant conducted the deposition of Plaintiff Thompson Ly, 22 but did not complete it that day. (Id. at J 15.) 23 In January 2020, the parties began discussing the possibility of mediation. On January 17, 24 2020, the parties submitted a stipulation to stay the case and vacate case deadlines so the parties 25 could mediate the case. The Court granted the order on January 28, 2020. On April 15, 2020, in 26 light of the COVID-19 pandemic, the parties conducted a Zoom® mediation before well-respected 27 mediator Francis “Tripper” Ortman III. In preparation for the mediation, Defendant provided 28 substantial information about the claims alleged by Plaintiff, including but not limited to, payroll =e 18CV334378 PLAINTIFF'S MOTION FOR FINAL APPROVAL data, Salesforce data and parking badge data. In short, Defendant provided relevant data for| Plaintiff to make informed and reasoned decisions about the valuation of the claims alleged. Ultimately, the parties were able to reach an agreement in principle after mediating late into the evening, and the parties memorialized the agreement in writing. (Decl. of Wynne, {| 16.) On June 5, 2020, Plaintiff filed his motion for Preliminary Approval of Class Action Settlement. On August 6, 2020, Plaintiff filed a Supplemental Declaration of Edward J. Wynne in support of Preliminary Approval. (Decl. of Wynne, {] 17.) On August 7, 2020, the Court granted preliminary approval of the settlement. (Id. at J 17.) B Settlement Administration Pursuant to the Court’s Order Granting Preliminary Approval, the Court appointed 10 Phoenix Settlement Administrators as the Settlement Administrator. (Declaration of Elizabeth 11 Kruckenberg Regarding Notice and Settlement Administration (“Kruckenberg Decl.”), { 1.) 12 On August 14, 2020, Defendant provided the Settlement Administrator with the class data 13 including class member contact information and employment information. (Kruckenberg Decl., 14 13) 15 On August 20, 2020, Defendant deposited $1,100,000.00 into the Qualified Settlement 16 Fund. (Kruckenberg Decl., { 4.) The amount of interest earned to-date is $134.40. (/d.) 17 On August 21, 2020, the Settlement Administrator caused the notice to be sent to the class 18 via first-class mail after updating the class contact information through an NCOA search. 19 (Kruckenberg Decl., § 5.) During the notice period, Phoenix received 1 return as undeliverable 20 and was able to locate new address for that return which was re-mailed. (Kruckenberg Decl., § 21 7.) There are no undeliverable Notice Packets. (Kruckenberg Decl., { 8.) 22 The Settlement Administrator received zero requests for adjustment. (Kruckenberg Decl., 23 4] 11.) One person requested to be excluded. (Kruckenberg Decl., 4 9.) 24 The Settlement Administrator received no objections to the settlement. (Kruckenberg 25 Decl., 4 10.) 26 Cc. The Monetary Recovery for Each Class Member Is Within the Range of Reasonableness. 27 After deductions for attorney’s fees and costs, the costs of settlement administration, and 28 -3- 18CV334378 PLAINTIFF'S MOTION FOR FINAL APPROVAL the class representative payments, the Net Settlement Amount is $706,695. (Kruckenberg Decl., 412) The Settlement Administrator reports that, on a net basis, the average payout is $8,030, smallest payout is $216, and the highest is $30,718. (Kruckenberg Decl., | 12.) The settlement consideration to be paid by the Defendant consists of the following as more particularly described in the Settlement Agreement: . one payment by Defendant to currently and formerly employed Class Members of $1,100,000 from the Settlement Fund for distribution to Class Members, less payments of attorneys’ fees and costs up to $381,666, class representative enhancement of $7,500 and payment of claims administration of $5,750; 10 e Interest on the Gross Settlement Fund to the Class and Class Counsel which 11 has generated an additional $134 through November 6, 2020; e There is no reversion to Defendant. 12 e The settlement is a fixed common fund settlement. All Class Members shall 13 receive mailed checks. Any checks that are uncashed shall be deposited with 14 the State in the class member’s name as unclaimed wages. 15 1. The Amount Realized Is Superior to Other Similar Cases 16 a. Amount Recovered in Settlement 17 The gross settlement amount is $1,100,000 with net amount paid out to the Class being 18 $706,695 after deductions for fees, litigation expenses, a class representative enhancement award 19 and settlement administration costs. According to the Settlement Administrator, there are 7,087 20 workweeks at issue in the class period. Based on the net amount to be paid to the Class, divided 21 by the number of workweeks in the class period, Class Members can expect to receive $99.68 per 22 workweek. . (Decl. of Wynne, { 19.) 23 Plaintiff's damages estimates are largely based on Defendant’s own payroll, PTO, 24 Salesforce, and parking lot badge in/out data. Because many class members did not consistently’ 25 use the parking lot, and Salesforce does not capture all their work time, some reasonable 26 estimations were made. Plaintiff did not calculate any damages for any member during any month 27 he or she earned more in commissions than base pay. 28 -4- 18CV334378 PLAINTIFF'S MOTION FOR FINAL APPROVAL Plaintiff determined that Class Members worked 47.6 hours per week on average and earned $50.54 per hour on average in salary and commissions as a premium rate. At the time of| mediation, Plaintiff determined that Class Members worked 6,679 workweeks during the period through March 31, 2020.1 (Decl. of Wynne, {| 21.) Based on these figures, Plaintiff's damages calculations were as follows: CLAIM AMOUNT Overtime (and double time) $2,565,730 Interest $ 830,941 Waiting time penalties $ 649,180 TOTAL $4,045,851 10 (Id.) 11 Plaintiff performed a person-by-person calculation of Defendant’s potential exposure for 12 the claims alleged in the complaint. The analysis is marked and attached to the Declaration of| 13 Edward J. Wynne as Exhibit 1. 14 Based on Plaintiff's analysis, Plaintiff determined that a settlement of $1,100,000 which 15 represents approximately 27% of Defendant’s potential exposure for the claims alleged in the 16 complaint (not including attorneys’ fees), is fair, reasonable and adequate and in the best interests 17 of the class in light of the risk factors discussed in the Motion for Preliminary Approval. (Decl. 18 of Wynne, {[ 23.) 19 b Amount Recovered in Similar Litigation 20 In Class Counsel’s experience, this settlement compares favorably to other recently- 21 approved _ settlements of class actions alleging non-payment of overtime based on 22 misclassification under the [WC exemptions. As set forth above, Class Members are set to receive 23 an estimated $104.93 per workweek. In Brinkel v. Westamerica Bank, Marin Superior Court Case 24 No. CIV 1303112, for example, the class members in that case received $70.63 per workweek. In 25 Briones v. Patelco Credit Union, Alameda Superior Court Case No. RG16805680, the class 26 members in that case received $78.91 per workweek. In Branco et al. y. Orchard Supply Co LLC, 27 28 ' The actual workweeks have increased slightly from Plaintiff's original calculations. -5- 18CV334378 PLAINTIFF'S MOTION FOR FINAL APPROVAL 1 18-cv-00531-EJD, the class members in that case received $74.19 per workweek. The amount per workweek in this case vastly exceeds these recently-approved settlements. Plaintiff submits that the settlement amount and payout to Class Members is eminently fair, reasonable and adequate in light of the other factors above and also considering that this settlement will be completely paid out, i.e., the settlement is non-reversionary. (Decl. of Wynne, { 24.) 2. The Settlement Is Reasonably Tailored to Each Class Member’s Claim The essential terms of the monetary settlement between Plaintiff and Defendant provides for a settlement payment to each class member according to the amount of time each class member was employed by Defendant as an SDR of CAM during the class period. The settlement is reasonably tailored to each class member’s claim in that it is primarily based on the number of| 10 weeks worked by each class member in a covered position during the statutory time covered by 11 the complaint. Thus, while the monetary settlement provides for class-wide relief, it is also 12 designed to take into consideration each class member’s individual situation so as to maximize 13 the equity of the distribution without overwhelming the administration of the settlement. 14 Til. FINAL SETTLEMENT APPROVAL IS APPROPRIATE 15 Pursuant to both state and federal rules of civil procedure, “a class action shall not be 16 dismissed or compromised without the approval of the court, and notice of the proposed dismissal 17 or compromise shall be given to all members of the class in such manner as the court directs. . .” 18 CCP § 1781(f); Fed. R. Civ. P. 23e The trial court must determine whether a class action 19 settlement is fair and reasonable, and has a broad discretion to do so. That discretion is to be 20 exercised through the application of several well-recognized factors. The list, which “ ‘is not 21 a” exhaustive and should be tailored to each case, includes “ ‘the strength of plaintiffs’ case, the 22 tisk, expense, complexity and likely duration of further litigation, the risk of maintaining class 23 action status through trial, the amount offered in settlement, the extent of discovery completed 24 and the stage of the proceedings, the experience and views of counsel, the presence of a 25 governmental participant, and the reaction of the class members to the proposed settlement. >» 26 Kullar vy. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 128 (citing Dunk v. Ford Motor 27 Co. (1996) 48 Cal. App.4th 1794, 1801.) In Kullar, the court pointed out that “neither Dunk ... nor any other case suggests that the 28 -6- 18CV334378 PLAINTIFF'S MOTION FOR FINAL APPROVAL court may determine the adequacy of a class action settlement without independently satisfying itself that the consideration being received for the release of the class members’ claims is reasonable in light of the strengths and weaknesses of the claims and the risks of the particular litigation.” Kullar, supra at 129. As further stated by the Court in Kullar: The court undoubtedly should give considerable weight to the competency and integrity of counsel and the involvement ofa neutral mediator in assuring itself that a settlement agreement represents an arm’s-length transaction entered without self-dealing or other potential misconduct. While an agreement reached under these circumstances presumably will be fair to all concerned, particularly when few of the affected class members express objections, in the final analysis it is the court that bears the responsibility to ensure that the recovery represents areasonable compromise, given the magnitude and apparent merit of the claims being released, discounted by the risks and expenses of attempting to establish 10 and collect on those claims by pursuing the litigation. ‘The court has a fiduciary 11 responsibility as guardians of the rights of the absentee class members when deciding whether to approve a settlement agreement. 12 Kullar at 129. 13 In discussing the trial court’s duty to determine the sufficiency of the proposed settlement, 14 the court in Kullar went on to determine that: 15 To make that determination, “‘the factual record before the ... court must be 16 sufficiently developed,’ “and the initial presumption to which Dunk refers “ 17 ‘must then withstand the test of the plaintiffs’ likelihood of success.’” (/bid.) Again, “““The most important factor is the strength of the case for plaintiffs on 18 the merits, balanced against the amount offered in settlement. 19 (Id.) 20 In practical terms, the settlement of a class action follows three parts: (1) preliminary 21 approval of the proposed settlement; (2) notice to class members, and (3) a final approval hearing 22 or “Fairness Hearing” at which evidence and argument may be heard on the fairness, adequacy’ 23 and reasonableness of the settlement. Here, the Court has given preliminary approval of the 24 settlement, notice has been delivered to all class members by mail, and the claims procedure prior| 25 to final calculations and distribution has been completed. 26 A The Settlement Is Entitled To A Presumption Of Fairness 27 A presumption of fairness exists where: (1) The settlement is reached through arm’s- length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to 28 ae 18CV334378 PLAINTIFF'S MOTION FOR FINAL APPROVAL act intelligently; (3) counsel is experienced in similar litigation; and, (4) the percentage of| objectors is small. Dunk v. Ford Motor Company, supra, 48 Cal.App.4th at 1802. To prevent fraud, collusion or unfairness to the class, the settlement or dismissal of a class action requires court approval. Malibu Outrigger Bd. of Governors. v. Superior Court (1980) 103 Cal.App.3d. 573, 578-579. The purpose of the requirement is the protection of those class members, including the named plaintiffs, whose rights may not have been given due regard by the negotiating parties. Officers for Justice v. Civil Service Com. (9th Cir. 1981) 688 F.2d 615, 624. The trial court has broad powers to determine whether a proposed settlement in a class action is fair. Mallick v. Superior Court (1979) 89 Cal.App.3d 434. At the Final Approval Hearing the court should consider the relevant factors, such as the 10 strength of the plaintiff's case, the risk, expenses, complexity and likely duration of further] 11 litigation, the risk of maintaining class action status through trial, the amount offered in 12 settlement, the extent of discovery completed and the stage of the proceedings, the experience 13 and views of counsel, the presence of a governmental participant and the reaction of the class 14 members to the proposed settlement. Officers for Justice v. Civil Service Com., supra, 688 F.2d 15 at 624. “This list is not exhaustive and should be tailored to each case. Due regard should be 16 given to what is otherwise a private consensual agreement between the parties.” Dunk v. Ford 17 Motor Company, supra, 48 Cal.App.4th at 1801. 18 1. The Settlement Was Reached Through Arm’s-Length Negotiations 19 This settlement was reached through arm’s-length negotiations between experienced 20 counsel. “The merits of the underlying class claims are not a basis for upsetting the settlement of| 21 a class action.” Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 246. A “proposed 22 settlement is not to be judged against a hypothetical or speculative measure of what might have 23 been achieved had plaintiffs prevailed at trial.” Jd. The court added, 24 [A] settlement need not obtain 100 percent of the damages sought in order to be fair and reasonable...Compromise is inherent and necessary in the 25 settlement process. Thus, even if ‘the relief afforded by the proposed settlement is substantially narrower than it would be if the suits were to be successfully 26 litigated,’ this is no bar to a class settlement because ‘the public interest may 27 indeed be served by a voluntary settlement in which each side gives ground in the interest of avoiding litigation.’ 28 -8- 18CV334378 PLAINTIFF'S MOTION FOR FINAL APPROVAL 1 Wershba, 91 Cal.App.4th at 250. Similarly, in Linney v. Cellular Alaska Partnership (9th Cir. 1998) 151 F.3d 1234, 1242 the court observed: Appellants offer nothing more than speculation about what damages ‘might have been’ won had they prevailed at trial. This court has aptly held that ‘it is the very uncertainty of outcome in litigation and avoidance of wasteful and expensive litigation that induce consensual settlements. The proposed settlement is not to be judged against a hypothetical or speculative measure of what might have been achieved by the negotiators.’ Officers for Justice v. Civil Serv. Comm’n., 688 F.2d at 625. Thus, ‘the very essence of a settlement is compromise, “a yielding of absolutes and an abandoning of highest hopes. 2 This settlement was the result of intense settlement negotiations through a professional 10 mediator. In preparation for the mediation, Defendant provided key material facts regarding job 11 codes and titles, number of employees, work weeks, Salesforce data, parking and badge data, pay 12 data, time off data, policies and procedures, and job descriptions. Previously, Plaintiffs had 13 engaged in extensive informal and formal discovery including receiving over 12,000 documents 14 consisting of policies and procedures, training materials, emails, personnel and payroll files, and 15 call sheets. (Decl. of Wynne, § 16.) 16 The parties attended the all-day mediation facilitated by experienced mediator Tripper' 17 Ortman on April 15, 2020. Ultimately, the parties were able to reach an agreement in principle 18 after mediating late into the evening, and the parties memorialized the agreement in writing. 19 (Decl. of Wynne, ¥ 16.) 20 2. Substantial Investigation Has Been Completed to Warrant Settlement 21 The stage of the proceedings and the amount of investigation completed is an important 22 factor that the courts consider in determining the fairness, reasonableness, and adequacy of a 23 settlement. Jn re Warner Communications Sec. Litig. (S.D.N.Y. 1985) 618 F.Supp. 735, 741; Ellis 24 v. Naval Air Rework Facility (N. D Cal. 1980) 87 F.R.D. 15, 18; Boyd v. Bechtel Corp. (N.D. Cal. 25 1979) 485 F.Supp. 610, 616-17. 26 As noted above, the parties conducted extensive informal and formal discovery. 27 Additionally, Defendant provided detailed data on each class member’s compensation and dates 28 of employment. Accordingly, “the parties certainly have a clear view of the strengths and -9- 18CV334378 PLAINTIFF'S MOTION FOR FINAL APPROVAL weaknesses of their cases.” Warner Communications, 618 F Supp. at 745; Ellis, 87 F.R.D. at 18; Boyd, 485 F. Supp. at 616-17. 3. Class Counsel is Experienced and Endorses the Settlement As detailed in the Motion for Preliminary Approval, experienced counsel operating at arm’s-length has weighed all of the risk factors and endorses the proposed settlement. The view of the attorneys actively conducting the litigation is “entitled to significant weight.” Fisher Bros. v. Cambridge-Lee Industries, Inc. (E.D. Pa. 1985) 630 F.Supp. 482, 488; see also, Ellis, 87 F.R.D. at 18; Boyd, 485 F. Supp. at 616-17. Class Counsel has extensive wage and hour class action experience. (Decl. of Wynne, {J 2-11.) Thus, Class Counsel is experienced and qualified to evaluate the class claims and viability 10 of the defenses. Class Counsel is satisfied that the recovery for each class member is fair and 11 reasonable taking into consideration the potential recovery as compared to the actual recovery, 12 the amounts received in other similar expense reimbursement cases, the stage of the litigation 13 when the settlement was reached, the risks inherent in any litigation and the specific risks in this 14 case, and the reasonable tailoring of each class member’s claim to the amounts received. This 15 settlement is fair, adequate and reasonable and in the best interests of the Class. (Decl. of Wynne, 16 9 40-42.) 17 4. There Are No Objections to the Settlement 18 Perhaps the most significant endorsement for the proposed settlement in this case is the 19 fact that not a single class member has objected to any aspect of the proposed settlement. Class 20 Members were specifically provided with the option of objecting to the terms of the Settlement 21 and not a single objection has been received. The final factor in Dunk is that the percentage of| 22 objectors is small. Here, there are no objections. In addition, only one individual out of 89 has 23 opted-out of the settlement representing just .01% of the class. This Court should properly construe the lack of any expressed opposition to the settlement as a very strong indicator that the 24 class members view the settlement as fair, adequate and reasonable. 25 B. The Risk and Expense of Further Litigation 26 The risks, complexity, and expenses of this action and the expected duration of this 27 litigation all weigh in favor of final approval. Given the uncertain nature and fluid landscape 28 -10- 18CV334378 PLAINTIFF'S MOTION FOR FINAL APPROVAL concerning how class action cases such as this can properly be certified and tried, Plaintiff faced risk that, even assuming a judgment in his favor, the judgment would be reversed and/or remanded on any number of grounds by a reviewing court. As set forth in Plaintiffs’ Motion for Preliminary Approval, Class Counsel’s personal experience in Duran v. US Bank (2014) 59 Cal.4th 1 perhaps best exemplifies the risk inherent in complex litigation. In sum, after getting the case certified and prevailing at trial, the judgment was reversed by the Court of Appeal, affirmed by the Supreme Court, and plaintiffs’ second effort at certification in the Superior Court was denied (and affirmed by the Court of Appeal) after 17 years of hard-fought litigation. (Decl. of Wynne, § 4.) IV. CONCLUSION 10 The Stipulation for Settlement provides substantial benefits to the class members that are 11 fair, reasonable and adequate. The standards for final approval have been met. Accordingly, Class 12 Counsel respectfully requests that the Court grant final approval of the Settlement. 13 14 Dated: November 9, 2020 WYNNE LAW FIRM Cb— 15 16 17 Edward J. Wynne 18 Class Counsel 19 20 21 22 23 24 25 26 27 28 -ll- 18CV334378 PLAINTIFF'S MOTION FOR FINAL APPROVAL