1. law, govt and politics

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Shaun Setareh (SBN 204514)
[email protected]
Tuvia Korobkin (SBN 268066)
[email protected]
Neil Larsen (SBN 276490)
[email protected]
SETAREH LAW GROUP
9454 Wilshire Boulevard, Suite 907
Beverly Hills, California 90212
Telephone:
(310) 888-7771
Facsimile:
(310) 888-0109
Attorneys for Plaintiffs,
ROBERT MONTGOMERY, ARACELI NEGRETE, and CAROL PHILIPS
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF KINGS
(UNLIMITED JURISDICTION)
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ROBERT MONTGOMERY, ARACELI
NEGRETE, and CAROL PHILIPS, on behalf of
themselves, all others similarly situated, and the
general public,
Plaintiffs,
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vs.
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DEL MONTE CORPORATION, a Delaware
corporation; DEL MONTE FOODS, INC., a
Delaware corporation; and DOES 1–50,
inclusive,
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Case No. 13 C 0204
NOTICE OF MOTION AND MOTION
FOR FINAL APPROVAL OF CLASS
ACTION SETTLEMENT AND
APPLICATION FOR ATTORNEYS’ FEES,
COSTS, AND SERVICE PAYMENT;
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREOF
Hearing Information
Date:
May 18, 2015
Time:
9:00 a.m.
Location:
Department 4
Judge:
Hon. James T. LaPorte
Defendants.
Submitted Under Separate Cover
1. Declaration of Shaun Setareh;
2. Declaration of Stacy Roe;
3. Declarations of Araceli Negrete and Carol
Philips; and
4. [Proposed] Order and Judgment.
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NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
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NOTICE OF MOTION AND MOTION
TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
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PLEASE TAKE NOTICE that on May 18, 2015 at 9:00 a.m., or as soon thereafter as the
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matter may be heard, in Department 4 of the Kings County Courthouse of the California Superior
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Court, located at 1426 South Drive, Hanford, California 93230, Plaintiffs Araceli Negrete and Carol
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Philips (“Plaintiffs”) will and hereby do move this Court for an order:
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1. Confirming the certification of the Settlement Class for settlement purposes only pursuant to
Code of Civil Procedure § 382;
2. Finally approving the Settlement Agreement (the “Settlement”) between Plaintiffs and
Defendants;
3. Confirming the appointment of the Setareh Law Group as Class Counsel, and Plaintiffs as
Class Representatives, for the Settlement Class;
4. Approving Class Counsel’s application for Class Counsel Fees in the amount of $2,500,000
(1/3 of the Settlement Fund) as authorized under the Settlement;
5. Approving Class Counsel’s application for litigation costs of $13,711.56, as authorized under
the Settlement;
6. Approving settlement administration costs to Rust Consulting, Inc., as authorized by the
Settlement and as delineated herein below;
7. Approving Service Payments` of $5,000 each to Plaintiffs Araceli Negrete and Carol Philips,
as authorized under the Settlement; and
8. Directing that the [Proposed] Order and Judgment be entered to give finality to the Settlement.
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This Motion is made on the following grounds: (1) the Settlement meets all the requirements
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for class certification under Code of Civil Procedure § 382; (2) Plaintiff and his counsel are adequate
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to represent the Settlement Class; (3) the terms of the Settlement are fair, adequate, and reasonable; (4)
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the notice process performed by the claims administrator comports with all applicable due process
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requirements; and (4) in view of the foregoing, the [Proposed] Order Granting Final Approval of Class
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Action Settlement and Judgment submitted herewith should be entered.
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1
NOTICE OF MOTION AND MOTION
FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
TABLE OF CONTENTS
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I.
INTRODUCTION ................................................................................................................... 1
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II.
FACTUAL AND PROCEDURAL BACKGROUND............................................................. 5
III.
OVERVIEW OF THE SETTLEMENT................................................................................... 7
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A.
Class Member Settlement Share Calculation…….…………………………………..7
B.
Subclass Member Settlement Share Calculation……………………………….…….8
C.
Guaranteed Minimum Payment………………………………………………………8
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IV.
CURRENT SUMMARY OF THE NOTICE PROCESS ........................................................ 9
V.
ARGUMENT ………………………………………………………………………………..10
A.
This Court Should Reaffirm Its Conditional Certification of the Settlement Class
Because It Meets All the Requirements for Class Certification for Settlement
Purposes Only Under Code of Civil Procedure § 382……………………………….10
B.
This Court Should Finally Approve the Settlement Because It Is a Fair, Adequate,
and Reasonable Compromise of the Disputed Claims in This Case in View of
Defendant’s Potential Liability Exposure and the Risks of Continued Litigation..... 11
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1.
The Settlement Is Reasonable. ....................................................................... 11
2.
The Settlement Was Reached at Arms’ Length Through Experienced Counsel
and an Experienced Mediator with Sufficient Information to Intelligently
Negotiate a Fair Settlement in View of the Claims Asserted and Risks of
Continued Litigation.. .................................................................................... 11
3.
The Settlement Fairly, Reasonably, and Adequately Compensates Settlement
Class Members Based on the Potential Extents of Their Claims in
Comparison to One Another. ......................................................................... 15
4.
The High Claims Rate, and the Absence of Objections and Few Requests for
Exclusion, Also Show That the Settlement Is Fair, Adequate, and
Reasonable. .................................................................................................... 16
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C.
The Court Should Finally Approve the Requested Attorneys’ Fees Because the
Amount Sought Is Fair, Adequate, and Reasonable………………………………...16
1.
As the prevailing parties in Settlement that has produced benefits for the
Class, Plaintiffs and the Settlement Class are entitled to recover their
attorneys’ fees from the Gross Settlement Amount per the terms of the
Settlement……………………………………………………………………16
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i
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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2.
The Reasonableness of Class Counsel’s Requested Fee Award of One-Third
of the Gross Settlement Amount is Supported by the Relevant Caselaw, and
by the Experience of Class Counsel………………………………………...16
3.
The results achieved, especially when weighed against the magnitude of the
contingent risks in this case, also support the fairness, adequacy, and
reasonableness of the fee request…………………………………………...18
4.
Class Counsel’s experience in employment litigation as well as the caliber of
opposing counsel further support the fairness, adequacy, and reasonableness
of the fee request…………………………………………………………...19
5.
The absence of objections and low number of exclusions supports the fairness,
adequacy, and reasonableness of the fee request…………………………..20
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D.
The Requested Award of Costs Is Also Fair, Adequate, and Reasonable and Warrants
This Court’s Final Approval……………………………………………………….21
E.
This Court Should Finally Approve the Requested Administration Costs Because the
Amount Sought Is Fair, Adequate, and Reasonable……………………………….21
F.
This Court Should Finally Approve the Requested Service Payments Because the
Amount Sought Is Fair, Adequate, and Reasonable………………………………..23
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VI.
CONCLUSION ...................................................................................................................... 24
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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TABLE OF AUTHORITIES
Cases
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7-Eleven Owners for Fair Franchising v. Southland Corp.
(2000) 85 Cal.App.4th 1135 .......................................................................................................... .16
Air Line Stewards, etc., Local 550 v. Am. Airlines, Inc.
(7th Cir. 1972) 455 F.2d 101 .......................................................................................................... 12
Albrecht v. Rite Aid Corp.
No. 729219 (San Diego Super. Ct.)…………………………………………………………...….17
Bell v. Farmers Ins. Exchange
(2004) 115 Cal.App.4th 715…………………………………………………………………...….23
Benitez, et al. v. Wilbur
No. 08-01122 (E.D. Cal.)…………………………………………………………………..…….18
Boncore v. Four Points Hotel ITT Sheraton
No. GIC807456 (San Diego Super. Ct.) ........................................................................................ 17
Bradley v. Networkers International, LLC
(2012) 211 Cal.App.4th 1129 ......................................................................................................... 13
Bright v. Kanzaki Specialty Papers
No. CGC-94-963598 (San Francisco Super. Ct.)……………………………………………...….17
Brinker Restaurant Corp. v. Superior Court
(2012) 53 Cal.4th 1004 ................................................................................................................... 13
Chalmers v. Elecs. Boutique
No. BC306571 (L.A. Super. Ct.) ................................................................................................... 17
Chavez v. Netflix, Inc.
(2008) 162 Cal.App.4th 43 ............................................................................................................. 17
Chavez, et al. v. Petrissans, et al.
No. 08-00122 (E.D. Cal.)…………………………………………………………………………18
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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Choate v. Celite Corp.
(2013) 215 Cal.App.4th 1460 ......................................................................................................... 14
Clark v. Am. Residential Servs. LLC
(2009) 175 Cal.App.4th 785 ........................................................................................................... 12
Comcast Corp. v. Behrend
(2013) 133 S.Ct. 1426 ……………………………………………………………………………...3
Crandall v. U-Haul Intl., Inc.
No. BC178775 (L.A. Super. Ct.) ……………………..…………………………………………..17
Dunk v. Ford Motor Co.
(1996) 48 Cal.App.4th 1794 ..................................................................................................... 11, 12
Duran v. U.S. Bank
(2014) 59 Cal.4th 1…………………………………………………………………………......3, 13
Garner v. State Farm Mut. Auto Ins. Co.
2010 U.S. Dist. LEXIS 49482, at *5 (N.D. Cal. 2010)…………………………………….……...20
Ingram v. Coca-Cola Co.
200 F.R.D. 685, 694 (N.D. Ga. 2001)………………………………………………………..……23
In re California Indirect-Purchaser Plasticware Antitrust Litigation
Nos. 961814, 963201, and 963590 (San Francisco Super. Ct.)…………………………….…….17
In re Liquid Carbon Dioxide Cases
No. J.C.C.P. 3012 (San Diego Super. Ct.)……………………………………………………...…17
In re Milk Antitrust Litig.
No. BC070061 (L.A. Super. Ct.)………………………………………………………………….17
In re Pacific Enter. Sec. Litig.
(9th Cir. 1995) 47 F.3d 373, 379…………………………………………………………….........17
In re Rite Aid Corp. Sec. Litig.
396 F.3d 294, 305 (3d Cir. 2005) ……………………………………..……………………..........20
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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J.N. Futia Co. v. Phelps Dodge Indus., Inc.
(S.D.N.Y. 1982) 1982 U.S. Dist. LEXIS 15261……………………………………………...........18
Leal v. Wyndham Worldwide Corp.
No. 37-2009-00084708 (San Diego Super. Ct.)…………………………………………….….…18
Lealao v. Beneficial California, Inc.
(2000) 82 Cal.App.4th 19, 26………………………………………………………………....17, 20
Kritz v. Fluid Components, Inc.
No. GIN057142 (San Diego Super. Ct.)………………………………………………………….18
Kullar v. Foot Locker Retail Inc.
(2008) 168 Cal.App.4th 116 ........................................................................................................... 12
Malibu Outrigger Bd. of Governors v. Superior Court
(1980) 103 Cal.App.3d 573 ............................................................................................................ 11
Mallick v. Superior Court
(1979) 89 Cal.App.3d 434 .............................................................................................................. 11
Maria P. v. Riles
(1987) 43 Cal.3d 1281 .................................................................................................................... 16
Marroquin v. Bed Bath & Beyond
No. RG04145918 (Alameda Super. Ct.)………………………………………………………….17
Nordstrom Commission Cases
(2010) 186 Cal.App.4th 576 ........................................................................................................... 11
Parker v. City of L.A.
44 Cal. App. 3d 556, 567-68 (1974)…………………………………………………………..….17
Richmond v. Dart Indust., Inc.
(1981) 29 Cal.3d 462 ...................................................................................................................... 10
Road Sprinkler Fitters Local Union No. 669 v. G & G Fire Sprinklers, Inc.
(2002) 102 Cal.App.4th 765………………………………………………………………………14
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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Sandifer v. U.S. Steel
(2014) 134 S.Ct. 870……………………………………………………………………………3, 13
Sandoval v. Nissho of California, Inc.
No. 37-2009-00097861 (San Diego Super. Ct.)……………………………………………….17
Serrano III
20 Cal.3d at pp. 48-49…………………………………………………………………………17
Stambaugh v. Superior Court
(1976) 62 Cal.App.3d 231 .............................................................................................................. 11
Thurman v. Bayshore Transit Mgmt., Inc.
(2012) 203 Cal.App.4th 1112 ......................................................................................................... 14
VanVranken v. Atl. Richfield Co
(1995) 901 F. Supp. 294, 300 (N.D. Cal.) ………………………………………………….…….23
Vivens, et al. v. Wackenhut Corp.
No. BC290071 (L.A. Super. Ct.)…………………………………………………………………17
Vizcaino v. Microsoft Corp.,
(2002) 290 F.3d 1043, 1050 (9th Cir.)……………………………………..…………16, 18, 19, 20
Weber v. Einstein Noah Restaurant Group, Inc.
No. 37-2008-00077680 (San Diego Super. Ct.) …………………………………...……………17
Wal-Mart Stores, Inc. v. Dukes
(2011) 131 S. Ct. 2541 ……………………………………………………………………………...3
Wershba v. Apple Computer, Inc.
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(2001) 91 Cal.App.4th 224 ................................................................................................. 12, 17, 20
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Westside Community for Independent Living, Inc. v. Obledo
(1983) 33 Cal.3d 348………………………………………………………………………..…….16
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Williams v. MGM-Pathe Communications Co.
(1997) 129 F.3d 1026 (9th Cir.) …………………………..……………….....……………..…….17
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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Statutes
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Civ. Code § 1542 ............................................................................................................................. ….8
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Code Civ. Proc. § 382 ............................................................................................................... 5, 10, 24
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Code Civ. Proc. § 1021.5(a) ............................................................................................................... 16
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8 Cal. Code Regs. § 13520(a) ............................................................................................................ 14
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Lab. Code § 201 ................................................................................................................................ 5, 8
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Lab. Code § 202 ................................................................................................................................ 5, 8
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Lab. Code § 203 ............................................................................................................ 3, 5, 7, 8, 14, 15
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Lab. Code § 204 ................................................................................................................................ 5, 8
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Lab. Code § 218.5 ............................................................................................................................... 16
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Lab. Code § 223 ................................................................................................................................ 5, 8
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Lab. Code § 226 .......................................................................................................................... 3, 8, 14
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Lab. Code § 226.7 ............................................................................................................................. 5, 8
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Lab. Code § 510 .................................................................................................................................... 5
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Lab. Code § 512 ................................................................................................................................ 5, 8
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Lab. Code § 558 .................................................................................................................................... 8
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Lab. Code § 1194 ........................................................................................................................ 5, 8, 16
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Lab. Code § 1194.2 ........................................................................................................................... 5, 8
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Lab. Code § 1197 .............................................................................................................................. 5, 8
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Lab. Code § 1197.1 ............................................................................................................................... 5
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Lab. Code § 1198 .............................................................................................................................. 3, 8
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Lab. Code § 2698 et seq. .........................................................................................................2, 7, 8, 14
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Lab. Code § 2699…...................................................................................................................... 14, 16
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Lab. Code § 1997.1 ........................................................................................................................... 3, 8
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Bus. & Prof. Code § 17200, et seq…………………………………………………………………5, 9
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Other Authority
Newberg on Class Actions, Appendix XI (4th ed.)………………………………………………….17
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
Plaintiffs Araceli Negrete and Carol Philips (“Plaintiffs”) and the Setareh Law Group (“Class
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Counsel”) have dedicated significant time and energy to litigating this case against Defendants Big
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Heart Pet Brands (“BHPB”) (f/k/a Del Monte Corporation and the seller of certain assets to Del
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Monte Foods, Inc.) and Del Monte Foods, Inc. (“DMFI”) (collectively, “Del Monte” or
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“Defendants”). Through their efforts, they were able to successfully negotiate the settlement set forth
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in the Settlement Agreement (“Settlement”) 1, which provides for a Gross Settlement Amount
(“GSA”) of $7,500,000 in compromise of disputed wage and hour claims asserted against Del
Monte. Class members have reacted extremely positively to the Settlement, with approximately 77%
of the Net Settlement Amount (“NSA”) claimed by class members, zero objections and relatively
few requests for exclusion.
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For their efforts in achieving this result, Plaintiffs and Class Counsel respectfully request that
the Court:
(1) Confirm its conditional certification of the Settlement Class for settlement purposes;
(2) Confirm its appointment of Setareh Law Group as Class Counsel, and of Plaintiffs as
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Class Representatives, for the Settlement Class;
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(3) Finally approve the Settlement between Plaintiffs and Defendants;
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(4) Finally approve the following awards from the GSA as authorized by the Settlement:
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Class Counsel Fees: $2,500,000 (1/3 of the GSA) (Settlement, ¶ III.C.2.)
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Class Counsel Expenses: $13,711,56 in actual litigation costs (Id.)
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Administration Costs: $42,000 from the GSA, plus an additional $55,000
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pursuant to the parties’ agreement as described herein and in the Declaration of
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Stacy Roe filed herewith (Settlement, ¶ III.C.5.)
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Service Payment: $10,000 ($5,000 to Plaintiff Negrete and $5,000 to Plaintiff
Philips) (Settlement, ¶ III.C.1.); and
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1
The Settlement is attached as Exhibit 1 to the Declaration of Shaun Setareh in Support of
Preliminary Approval of Class Action Settlement, filed with this Court on Nov. 10, 2014.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
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(5) Direct that the [Proposed] Order Granting Final Approval of Class Action Settlement and
Judgment be entered.
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Given the risks of this litigation, the result here is laudable. As detailed in this Memorandum
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and accompanying declarations, the work performed by Plaintiffs and Class Counsel was substantial.
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Among other things, Plaintiffs and Class Counsel:
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support Plaintiffs’ claims core claims for failure to provide meal and rest periods and
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failure to pay for all hours worked;
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Private Attorneys General Act of 2004 (Cal. Lab. Code § 2698 et seq., hereafter, the
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“PAGA”);
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recordkeeping policies; relevant collective bargaining agreements; and extensive
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data concerning class members’ wage rates and number of shifts;
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parties reached the Settlement;
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Engaged in difficult arm’s length settlement negotiations with Defendants at the
mediation where, as a result of Mr. Rudy’s assistance and a mediator’s proposal, the
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Prepared a detailed mediation brief (including the damages analysis mentioned
above) in connection with a mediation with Mark Rudy, Esq. in San Francisco;
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Traveled to the Hanford area on multiple occasions to advance the interests of the
Class (including hearings in this Court and the mediation);
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Conducted a detailed review of the record and prepared a thorough damages analysis
in anticipation of mediation;
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Conducted substantial formal and informal discovery to obtain, among other things,
Defendant’s applicable pay policies, meal and rest periods policies, and
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Submitted a detailed claim notice to the California Labor and Workforce
Development Agency (“LWDA”) in accordance with the California Labor Code
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Conducted an initial investigation of this case and developed the theories and facts to
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Worked with Defendants to prepare the Settlement Agreement, related forms, and
approval motions; and
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
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
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Incurred $13,711.56 in costs pursuing this case on behalf of the Class that would not
have been recoverable had Plaintiffs lost this case.
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(Declaration of Shaun Setareh submitted herewith (“Setareh Decl.”), ¶ 22.)
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Moreover, in pursuing this case against Defendants, Plaintiffs and Class Counsel faced
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serious risks, including but not limited to:
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The risk of litigating a case against Defendants for which the LWDA declined to
bring any charges;
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The risk of being unable to establish class-wide liability for meal and rest breaks in
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view of multiple employee declarations (excerpts of which were produced by
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Defendants subject to mediation privilege) stating that Defendants provided legally
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sufficient breaks;
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The risk of being unable to establish class-wide liability for time spent donning and
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doffing protective gear in view of the U.S. Supreme Court’s recent decision in
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Sandifer v. U.S. Steel, 134 S.Ct. 870 (2014) as well as the de minimis defense;
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The risk of being unable to establish class-wide liability for penalties under
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California Labor Code section 226 in view of its “knowing and intentional”
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requirement;
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The risk of being unable to establish class-wide liability for waiting time penalties
under California Labor Code section 203 in view of its willfulness requirement;
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The risk of being denied the ability to proceed on a class or representative basis in
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view of the U.S. Supreme Court’s decisions in Wal-Mart Stores, Inc. v. Dukes, 131
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S.Ct. 2541 (2011), and Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013), and the
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California Supreme Court’s recent decision in Duran v. U.S. Bank, 59 Cal.4th 1
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(2014);
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The risk of a potentially prolonged and expensive trial;
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The risk of Plaintiffs being held liable for Defendants’ attorneys’ fees and costs if
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this case had been unsuccessful; and
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
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The risk of lengthy appeals.
(Setareh Decl., ¶ 13-19.)
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Based on the foregoing risks, if Plaintiffs had lost the case, there would have been no
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compensation to Plaintiffs or to Class Counsel, nor would Class Counsel have been reimbursed for
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their costs incurred or paid at all for their time. (Setareh Decl., ¶ 23.)
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Despite the many risks faced by Plaintiffs and Class Counsel, and the difficulty in
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prosecuting such a complex case, they nevertheless achieved a strong result for the Class. Moreover,
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based on reports from the Administrator, Rust Consulting, Inc., the Settlement has been extremely
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well-received by Class Members, with approximately 77% of the NSA being claimed by Class
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Members, only 61 requests for exclusion (~0.77% of the Class), and zero objections received to date.
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(Declaration of Stacy Roe (“Roe Decl.”), ¶¶ 21-22.) This extremely positive response rate is further
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proof that the Settlement is fair, adequate, and reasonable for Class Members.
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Accordingly, Plaintiffs’ request for Class Counsel fees of one-third (33 1/3%) of the GSA is
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also fair, adequate, and reasonable. This amount is well-earned, supported by controlling case law, is
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squarely within the range awarded by California courts in similar complex cases, and has been
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received positively by the Class.
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Likewise, it is fair that Plaintiffs and Class Counsel be reimbursed for their expenses and
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that the Settlement Administrator be paid its reasonable fee. All of the expenses incurred were
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reasonable and necessary to the prosecution of this action and administration of this Settlement, and
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they are of the kind that courts routinely approve as proper.
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Finally, Plaintiffs’ requested Service Payment also warrants approval because it is fair and
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reasonable in view of Plaintiffs’ efforts in this case and the risks they have undertaken, especially
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considering that they jeopardized their future career prospects and exposed themselves to the risks of
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awards of attorneys’ fees and costs against them (which easily could have totaled tens of thousands
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of dollars).
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The Court should grant this Motion because: (1) the Settlement Class continues to meet the
requirements for class certification under C.C.P. § 382; (2) the Settlement warrants final approval
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
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based on all indicia for fairness, reasonableness, and adequacy; (3) Plaintiffs are adequate to serve as
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Class Representatives; (4) Plaintiffs’ attorneys are adequate to serve as Class Counsel; (5) the
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requested amounts for fees, costs, and service payment are fair, adequate, and reasonable; (6) the
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notice procedures and related forms fully comport with due process and have adequately apprised
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class members of their rights—indeed, class members have shown an overwhelmingly positive
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repose to the Settlement; and (7) in view of the foregoing, final approval is warranted.
Accordingly, for the reasons detailed below, this Court should grant this Motion in its
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entirety and finally approve the Settlement.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On April 19, 2013, Plaintiff Robert Montgomery filed the original complaint in this action in
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Alameda County Superior Court. The original Complaint alleged causes of action against Del Monte
for (1) Failure to Provide Meal Periods (Lab. Code §§ 204, 223, 226.7, 512, and 1198); (2) Failure to
Provide Rest Periods (Lab. Code §§ 204, 223, 226.7, and 1198); (3) Failure to Pay Hourly Wages
(Lab. Code §§ 223, 510, 1194, 1194.2, 1197, 1197.1, and 1198); (4) Failure to Provide Accurate
14
Written Wage Statements (Lab. Code § 226(a)); (5) Failure to Timely Pay All Final Wages (Lab.
15
Code §§ 201-203); and (6) Unfair Competition (Bus. & Prof. Code § 17200 et seq.). On May 28,
16
2013, Plaintiff filed a First Amended Complaint (“FAC”), which added a claim for penalties under
17
the Private Attorneys General Act (“PAGA”), Lab. Code § 2698, et seq.
18
On June 14, 2013, pursuant to a stipulation of the parties, this case was ordered transferred
19
from Alameda County Superior Court to this Court. On August 2, 2013, transfer was effectuated to
20
this Court, where the case is currently pending. On September 18, 2013, Del Monte Corporation
21
filed its Answer to the First Amended Complaint in which it denied all liability, denied the propriety
22
of class treatment, and asserted numerous affirmative defenses. Plaintiffs eventually filed a Second
23
24
25
Amended Complaint (“SAC”), pursuant to a stipulation and Court Order on September 9, 2014. The
SAC clarified the definitions of some subclasses, added Araceli Negrete and Carol Philips as named
class representatives1, and added Del Monte Foods, Inc. as a named defendant. Del Monte answered
on October 22, 2014.
26
On November 10, 2014, the parties filed a Stipulation requesting leave for Plaintiffs to file a
27
Third Amended Complaint (“TAC”), which added language that was inadvertently omitted from the
28
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
SAC regarding alleged off-the-clock work, including donning and doffing. On December 4, 2014,
2
this Court granted the parties’ stipulation and Plaintiffs’ TAC was deemed filed as of that date.
3
On June 24, 2014, the parties participated in a mediation session with Mark Rudy, Esq., a
4
highly regarded neutral with extensive experience in wage and hour class action litigation, and agreed
5
in principle to the Settlement. (Setareh Decl., ¶ 6.). In connection with the mediation, Plaintiffs
6
7
8
9
10
11
obtained extensive informal discovery concerning, among other things, the approximate number of
shifts worked each day during each season within the applicable statutes of limitation; contact
information for approximately 300 class members, many of whom Plaintiffs’ counsel contacted and
interviewed; copies of Del Monte’s wage and hour policies and relevant collective bargaining
agreements; and extensive electronic data concerning class members’ wages and hours worked. (Id.).
In all, Del Monte produced more than 3,000 pages of documents plus dozens of electronic
spreadsheets containing tens of thousands of lines of relevant time records and payroll data. (Id.)
12
Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement was filed on November
13
10, 2014. On December 4, 2014, this Court granted Plaintiffs’ Motion, and signed its Order Granting
14
Preliminary Approval of Class Action Settlement. (Setareh Decl., ¶ 7 and Exh. A.)
15
Thereafter, the parties and Rust Consulting, Inc., the Settlement Administrator, commenced the
16
process of giving notice to class members, including mailing Notice Packets to class members; taking
17
the necessary steps to locate current addresses of class members, including conducting skip traces to
18
locate more current addresses for those class members whose Notice Packets were returned as
19
undeliverable; re-mailing Notice Packets as necessary; keeping track of all class member responses;
20
setting up a toll-free telephone number, facsimile number, and dedicated website containing
21
information relevant to the Settlement; and other responsibilities as prescribed by the Settlement. (Roe
22
Decl., ¶¶ 3-22.)
23
24
25
In accordance with the Order Granting Preliminary Approval of Class Action
Settlement, Plaintiffs now submit this Motion for Final Approval of Class Action Settlement and
Application for Attorneys’ Fees, Costs, and Service Payment.
///
26
27
28
6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
2
3
4
III.
OVERVIEW OF THE SETTLEMENT
The Settlement provides for a Gross Settlement Amount (“GSA”) of $7,500,000 on behalf of
the Settlement Class. (Settlement, ¶ II.A.)
The Settlement Class is defined as follows:
“All persons employed in California by Del Monte as non-exempt employees during
the Class Period [from April 19, 2009 through December 4, 2014].”
5
6
There is also a Subclass within the Settlement Class, defined as:
7
“All Class Members who were employed at any time by Del Monte on or after April
19, 2009 and were no longer employed by Del Monte as of the date of Preliminary
Approval of this Settlement Agreement [December 4, 2014].”
8
9
(Order Granting Preliminary Approval of Class Action Settlement, ¶ 3; Settlement, ¶¶ I.F. and I.H.H.)
10
The Net Settlement Amount (“NSA”) is the amount remaining after the following payments
11
are deducted from the GSA: (1) Class Counsel fees ($2,500,000, one-third of the GSA); (2) Class
12
Counsel costs (up to $20,000, any unclaimed amount allocated to the NSA); (3) Class Representative
13
Payments ($5,000 each to Plaintiffs Negrete and Philips); (4) PAGA penalties ($50,000, out of which
14
$37,500 will be paid to the LWDA and $12,500 will be distributed to class members); and (5)
15
settlement administration costs. (See Settlement, ¶¶ I.W. and III.C.1-5.) The NSA will be distributed to
16
Settlement Class Members and Subclass Members via a claims-made process, as follows:
17
A.
18
Ninety-five percent (95%) of the NSA shall be allocated for distribution to all Class
19
Members. The amount allocated for each individual Class Member will be based on (a) the
20
individual Class Member’s total number of workweeks during the Class Period (b) divided by the
21
aggregate number of workweeks of all Class Members during the Class Period (with the division
22
rounded to four decimal places) (c) multiplied by ninety-five percent (95%) of the value of the NSA.
23
This portion of the Settlement Share covers all claims by Class Members except the claim for
24
25
26
Class Member Settlement Share Calculation
waiting time penalties under Labor Code § 203 by Subclass Members. (Agreement, ¶¶ III.B.1.) 50%
of the amounts paid to Settlement Class members will be treated as wages for tax purposes for which
IRS Forms W-2 will be issued and deductions withheld, and 50% will be treated as penalties and
interest (other than penalties under § 203 and the PAGA), for which 1099 forms will be issued and
27
no withholdings will be made. (Settlement, ¶ III.B.2.)
28
7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
B.
2
Five percent (5%) of the NSA shall be allocated for distribution to Subclass Members for
3
payment of claims for waiting time penalties under Labor Code § 203. The amount allocated for
4
distribution to each individual Subclass Member shall be based on (a) the individual Subclass
5
Member’s total number of workweeks during the Class Period (b) divided by the aggregate number
6
7
8
Subclass Member Settlement Share Calculation
of workweeks of all Subclass Members during the Class Period (with the division rounded to four
decimal places) (c) multiplied by five percent (5%) of the value of the NSA. The five percent of the
NSA allocated for distribution to Subclass Members is intended to cover interest and penalties, for
which 1099 forms will be issued and no withholdings will be made. (Settlement, ¶ III.B.3.)
9
C.
10
11
12
13
Guaranteed Minimum Payment
The NSA is subject to a 50% Guaranteed Minimum Payment; that is, at least 50% of the
NSA must be paid out to Class Members. If less than 50% of the NSA is claimed by Class Members,
the difference between 50% of the NSA and the sum allocated for valid claims submitted by Class
Members shall be distributed in pro rata shares, based upon weeks of employment during the Class
14
Period, to all Class Members who submit valid claims. (Settlement, ¶ III.D.) As explained below,
15
approximately 77% of the NSA has been claimed by class members. Thus, the guaranteed minimum
16
payment provision is not applicable, as the amount claimed is 27% higher than the guaranteed
17
minimum payment.
18
All Class Members who do not timely submit valid requests for exclusion will release all
19
known and unknown claims that were, or could have been, pled based on the facts alleged in the
20
Complaint, including a waiver of the protections of Civil Code § 1542 with respect to the claims
21
asserted in this action. (Settlement, ¶ III.G.2.) These claims specifically include claims under Cal.
22
Labor Code §§ 201-203, 204, 223, 226, 226.7, 512, 558, 1194, 1194.2, 1197, 1198, 1997.1, PAGA,
23
24
25
and the UCL. (Id.) In addition, the named Plaintiffs will release all known and unknown claims they
may have against Del Monte (not just wage and hour claims stemming from this action), including a
waiver of the protections of Civil Code § 1542. (Id., ¶ III.G.1.)
Within fourteen (14) days of the Effective Final Settlement Date (defined at ¶ I.S. of the
26
Settlement), Del Monte will deliver to the Settlement Administrator an amount sufficient to pay the
27
Court-awarded Class Counsel Fees, Court-awarded Class Representative Payments, the Court-
28
8
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
awarded Class Counsel costs, the Court-awarded settlement administration costs, the PAGA
2
payment to the LWDA, and payment of Settlement Shares and applicable employer taxes for all
3
valid and timely submitted claims by Participating Class Members. (Settlement, ¶ III.F.12.a.)
Within twenty-eight (28) days after the Effective Final Settlement Date, the Settlement
4
5
6
7
8
Administrator will distribute the Settlement Shares to all Class Members who submit valid Claim
Forms, as well as the Court-awarded Class Representative Payments, the Court-awarded Class
Counsel attorneys’ fees and costs; the employer share of taxes resulting from this Settlement; the
PAGA payment to the LWDA; and the Settlement Administrator’s reasonable fees and expenses as
approved by the Court. (Id.)
9
10
11
12
13
14
15
16
17
18
19
20
21
IV.
CURRENT SUMMARY OF THE NOTICE PROCESS
On or about December 22, 2014, Del Monte provided the Settlement Administrator with a list
containing class members’ names, last known addresses and telephone numbers, Social Security
numbers and dates of employment for each class member (the “Class List”). The original Class List
contained data for 7,491 class members. (Roe Decl., ¶ 9.)2 After searching for updated addresses in the
National Change of Address database, the Settlement Administrator mailed Notice Packets (consisting
of the Notice of Class Action Settlement, Claim Form, and Exclusion Request Form) to the 7,491 class
members contained in the original Class List on January 9, 2015. (Id., ¶¶ 10-11.) On February 23,
2015, letters were mailed to 16 individuals that were inadvertently included in the original Class List
explaining that the Notice Packet was sent to them in error. (Id., ¶ 12.) Also on February 23, 2015,
reminder postcards were mailed to 4,475 Class Members who had not submitted a Claim Form or an
Exclusion Request Form as of that date. (Id., ¶ 13.) In February and March 2015, a total of 416 class
22
23
24
25
26
27
28
2
The motion for preliminary approval listed the estimated number of class members at approximately
6,000, which was based upon information provided to Class Counsel prior to the mediation. Further review of
Del Monte’s records after preliminary approval showed that the number of class members was estimated at
7,491. The class list originally submitted to the Administrator contained 7,491 names, and estimated
settlement amounts were calculated based upon that number. Subsequently, it was discovered that 416
additional employees should have been on the original class list and those names were thereupon added to the
class list and the required notices were sent by the Administrator, resulting in a total of 7,907 class members.
The difference in the number of class members does not affect the settlement number negotiated at the
mediation; at the mediation the parties used the actual number of employees working during each shift during
the season to estimate potential damages.
9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
members who were not included in the original Class List were added to the Class List and were sent
2
Notice Packets. These additional class members were given response deadlines of April 24, 2015,
3
April 28, 2015, or May 12, 2015, depending on when their Notice Packets were mailed. (Id., ¶¶ 14-
4
16.) The Settlement Administrator mailed reminder postcards to those additional class members who
5
had not submitted a Claim Form or an Exclusion Request Form approximately 45 days after their
6
Notice Packets were originally mailed. (Id., ¶ 17.)
7
As of this date, the Settlement Administrator has received 5,038 Claim Forms, claiming
8
approximately 77% of the NSA. (Id., ¶¶ 19-20.) The average settlement award is estimated to be $709,
9
and the highest settlement award is estimated at $1,152. (Id., ¶ 20.) This is an excellent result for class
10
members, especially given that the majority of class members are seasonal workers who only work for
11
Del Monte for about 3 or 4 months per year. (Setareh Decl., ¶ 11.)
12
The response from class members has been overwhelmingly positive. As noted, approximately
13
77% of the NSA has been claimed by class members to date. The popularity of the settlement is
14
evidenced by the extremely high participation rate, the fact that there have been zero objections and
15
the fact that there have been only 61 requests for exclusion. (Roe Decl., ¶¶ 21-22.)
16
V.
17
18
ARGUMENT
A.
This Court Should Reaffirm Its Conditional Certification of the Settlement Class
Because It Meets All the Requirements for Class Certification for Settlement
Purposes Only Under Code of Civil Procedure § 382.
19
Under Code of Civil Procedure § 382, a class may be certified if: (1) it is ascertainable and its
20
members are too numerous for joinder to be practical; (2) the representative and absent class members
21
share a community of interest and questions of law and fact common to the class predominate over
22
23
24
25
questions unique to individual class members; (3) the representative’s claims are typical of the class’
claims; and (4) the representative will fairly and adequately represent the class’ interests. (See, e.g.,
Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470.)
This Court found that the Settlement Class meets all the requirements for class certification for
settlement purposes when it granted preliminary approval on December 4, 2014. No subsequent
26
events have cast doubt on this determination. Accordingly, this Court should reaffirm its prior
27
conditional grant of class certification for settlement purposes.
28
10
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
2
3
4
5
6
B.
This Court Should Finally Approve the Settlement Because It Is a Fair,
Adequate, and Reasonable Compromise of the Disputed Claims in This Case in
View of Defendant’s Potential Liability Exposure and the Risks of Continued
Litigation.
California courts favor settlement. (E.g., Stambaugh v. Sup. Ct. (1976) 62 Cal.App.3d 231.
236.). Unlike most settlements, class action settlements involve a court approval process that exists to
prevent fraud, collusion, and unfairness to class members. (Malibu Outrigger Bd. of Governors v.
Superior Court (1980) 103 Cal.App.3d 573, 578-579.). This approval process consists of preliminary
7
8
9
10
11
settlement approval, notice being given to class members, and a final fairness and approval hearing
being held at which class members may be heard with respect to the settlement. (E.g., id.) For the
reasons discussed herein, this Court should finally approve the Settlement and enter the [Proposed]
Order Granting Final Approval of Class Action Settlement and Judgment submitted herewith.
1.
The Settlement Is Reasonable.
12
The Settlement results in a substantial benefit to the Settlement Class. Courts often approve
13
settlements where class members receive only pennies or even just coupons or vouchers. (See, e.g.,
14
Nordstrom Commission Cases (2010) 186 Cal.App.4th 576, 590 [affirming final approval of wage and
15
hour class action settlement where 20% of the fund allocated to the class was merchandise vouchers].)
16
Here, Class Members who submitted timely Claim Forms will be sent checks for their settlement
17
payments, in the form of monetary payments. Moreover, the average estimated payment to class
18
members is $709, and the highest estimated payment is $1,152. (Roe Decl., ¶ 20.) Thus, the Settlement
19
provides meaningful relief for disputed wage and hour violations, making it reasonable.
20
21
2.
The Settlement Was Reached at Arms’ Length Through Experienced Counsel
and an Experienced Mediator with Sufficient Information to Intelligently
Negotiate a Fair Settlement in View of the Claims Asserted and Risks of
Continued Litigation.
22
A settlement is presumptively fair where it is reached through arms’ length bargaining, based
23
on sufficient discovery and investigation to allow counsel and the court to act intelligently, counsel is
24
experienced in similar litigation, and the percentage of objectors is small. (Dunk v. Ford Motor Co.
25
(1996) 48 Cal.App.4th 1794, 1802 (“Dunk”).). In deciding whether to approve a proposed settlement, a
26
trial court has broad powers to determine if the proposed settlement is fair under the circumstances of
27
the case. (Mallick v. Superior Court (1979) 89 Cal.App.3d 434, 438.). In exercising these powers, the
28
11
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
overriding concern is to ensure that a proposed settlement is “fair, adequate, and reasonable.” (Dunk,
2
48 Cal.App.4th at p. 1801 [internal quotations omitted].). Relevant factors for that determination
3
include, but are not limited to:
4
5
6
[T]he complexity and likely duration of further litigation, the risk of
maintaining class action status through trial, the amount offered in settlement,
the extent of discovery completed and the state of the proceedings, the
experience and views of counsel, the presence of a governmental participant,
and the reaction of the class members to the proposed settlement.
7
(Id.) These factors require balancing, are non-exhaustive, and, as such, trial courts should tailor the
8
factors considered to each case and give due regard to “what is otherwise a private consensual
9
agreement between the parties.” (Id.)
10
11
12
13
14
15
16
17
18
“In the context of a settlement agreement, the test is not the maximum amount plaintiffs might
have obtained at trial on the complaint, but rather whether the settlement is reasonable under all of the
circumstances.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 250.). Because
settlements inherently involve compromise, even settlements providing for substantially narrower
relief than likely would be obtained if the suit were successfully litigated can be reasonable because
“the public interest may indeed be served by a voluntary settlement in which each side gives ground in
the interest of avoiding litigation.” (Id. [quoting Air Line Stewards, etc., Local 550 v. Am. Airlines, Inc.
(7th Cir. 1972) 455 F.2d 101, 109].). In addition, courts review the discovery process and information
received through it to aid them in assessing whether the parties sufficiently developed the claims and
their supporting factual bases before reaching settlement. (See Kullar v. Foot Locker Retail Inc. (2008)
19
168 Cal.App.4th 116, 128-131 (“Kullar”).). Information is sufficient where it allows the parties and
20
the court to form “an understanding of the amount that is in controversy and the realistic range of
21
outcomes of the litigation.” (Clark v. Am. Residential Servs. LLC (2009) 175 Cal.App.4th 785, 801.).
22
This requirement exists so that the parties can provide the court with “a meaningful and substantiated
23
explanation of the manner in which the factual and legal issues have been evaluated.” (Kullar, 168
24
Cal.App.4th at p. 132-33.)
25
Here, while Plaintiffs have estimated Del Monte’s potential liability exposure in this case to be
26
in excess of $50 million (see Setareh Declaration in Support of Preliminary Approval, filed November
27
10, 2014, at ¶ 18), as discussed below, the tremendous risks that continued litigation would entail
28
12
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
show that the Settlement is a fair, adequate, and reasonable compromise of the disputed claims at issue
2
and resulted from extensive arm’s length negotiations with the assistance of an experienced mediator.
3
First, there are risks with respect to obtaining, and maintaining, class certification for trial
4
purposes that support the fairness of the Settlement. For example, in Brinker Restaurant Corp. v. Sup.
5
Ct. (2012) 53 Cal.4th 1004 and Bradley v. Networkers International, LLC (2012) 211 Cal.App.4th
6
7
8
1129, the plaintiffs were unable to certify claims for unpaid “off-the-clock” time due to their inability
to prove such claims through the defendants’ records. Moreover, the California Supreme Court’s
recent decision in Duran v. U.S. Bank (2014) 59 Cal.4th 1 makes class certification even less certain
given its antipathy towards using “sampling” as a basis for ascertaining class-wide liability and/or
9
damages. Accordingly, Plaintiffs would likely encounter extreme difficulty in certifying most of the
10
11
12
claims in this case because, while they present substantial common liability issues, they also give rise
to individual damages issues. (Setareh Decl., ¶ 14). Thus, there is a significant risk that this case could
not proceed to its completion as a class action absent the Settlement.
13
Second, there are substantial risks with respect to establishing the merits of Plaintiffs’ claims.
14
As explained in Plaintiffs’ Motion for Preliminary Approval, Del Monte vigorously disputed
15
Plaintiffs’ meal and rest break claims and damages analysis. Del Monte argued that it maintained and
16
enforced lawful policies regarding rest and meal breaks. Moreover, Del Monte claims there is no
17
written or unwritten rule or policy requiring employees to don and doff any work gear off-the-clock or
18
to perform any work off-the-clock. To the contrary, Del Monte contends that its employees are
19
prohibited from working off-the-clock, and that it is physically impossible for many of them to do so:
20
Del Monte contends that its employees primarily work on assembly lines and cannot start working
21
until the person they are replacing on the line is finished with his/her shift, and employees are required
22
to cease work immediately at the end of their shifts. Del Monte also produced (pursuant to the
23
24
25
mediation privilege) excerpts of multiple declarations from Del Monte employees stating that they
were provided with legally sufficient meal and rest periods and that they were not required to don or
doff work-related gear off-the-clock or perform any other work off-the-clock. (Setareh Decl., ¶ 15.)
Thus, there were significant risks that Plaintiffs would not prevail on the merits of their claims.
26
27
The merits issue is especially uncertain given the U.S. Supreme Court’s decision in Sandifer v.
U.S. Steel, 134 S.Ct. 870 (2014), which further restricted the compensability of time spent donning and
28
13
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
doffing work-related gear. Furthermore, Del Monte contends that the donning and doffing takes a
2
minute or two at most and, even if such time would otherwise be compensable, it is de minimis and
3
therefore no liability could attach for such alleged off-the-clock time. (Setareh Decl., ¶ 16.). Thus, the
4
uncertainty surrounding the viability of Plaintiffs’ donning and doffing claim further supports the
5
fairness, adequacy, and reasonableness of the Settlement.
Finally, Del Monte’s affirmative defenses and the uncertainty surrounding the merits of
6
7
8
Plaintiffs’ underlying claims could potentially preclude most of the penalties sought in this case. Labor
Code §§ 203 and 226(e)(1) both require proof of “willful” or “knowing and intentional” Labor Code
violations for liability to be imposed. Thus, the existence of a good faith dispute that could preclude
9
any recovery of wages (even if the plaintiff ultimately prevails) can preclude these penalties from
10
11
12
13
being awarded. 8 Cal. Code Regs. § 13520(a); Road Sprinkler Fitters Local Union No. 669 v. G&G
Fire Sprinklers, Inc. (2002) 102 Cal.App.4th 765, 782. See also, Choate v. Celite Corp. (2013) 215
Cal.App.4th 1460 (reversing award of waiting time penalties based on employer’s good faith defense
notwithstanding that the plaintiffs prevailed on the underlying wage claims). (Setareh Decl., ¶ 17.).
14
In addition, even to the extent that other penalties sought under the PAGA do not have such
15
scienter requirements, the trial court is afforded significant latitude in awarding PAGA penalties that
16
could result in a substantially diminished penalty award or even no penalty at all. See, Lab. Code §
17
2699(e)(2) (the court in its discretion “may award a lesser amount than the maximum civil penalty
18
amount specified by this part…”); see also, Thurman v. Bayshore Transit Mgmt., Inc. (2012) 203
19
Cal.App.4th 1112, 1135-1136 (affirming reduction of PAGA penalty award by trial court). (Setareh
20
Decl., ¶ 18.). Moreover, the vast majority of any PAGA penalties awarded would not be distributed to
21
class members in any event (see Lab. Code § 2699(i) -- 75% of PAGA penalties are distributed to the
22
LWDA and only 25% to aggrieved employees)), and therefore class members’ recovery of any PAGA
23
24
penalties would be drastically lower than Del Monte’s projected potential liability, even if this case
were ultimately successful at trial. (Setareh Decl., ¶ 18.)
Thus, because of the legal uncertainty surrounding Plaintiffs’ underlying claims, and because
25
of the discretionary nature of PAGA penalties, the claims for statutory and civil penalties present
26
significant risks that support the fairness, adequacy, and reasonableness of the Settlement.
27
///
28
14
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
Each of these factors bore heavily on the negotiations leading to the Settlement. (Setareh Decl.,
2
¶ 19.). In view of these risks, the Settlement reflects a fair, adequate, and reasonable compromise
3
amount for these claims and warrants preliminary approval. (Id.). Further, the policy under California
4
law in favor of settlement in class actions and other complex cases applies with particular force in this
5
case. (Id.). Certainty of recovery is enhanced by an equitable and timely consummated settlement such
6
7
8
as that under consideration in this case. (Id.). Tensions created in the employment relationship in the
litigation process are alleviated by such settlements as opposed to a trial of the matter, and all parties
are in a better position to move forward with their roles in the economy. (Id.). The expense of
protracted litigation in these cases is formidable. (Id.). Thus, while the risks listed herein are far from
9
exhaustive, they show that the Settlement is fair, adequate, and reasonable.
10
3.
11
12
13
The Settlement Fairly, Reasonably, and Adequately Compensates Settlement
Class Members Based on the Potential Extents of Their Claims in
Comparison to One Another
The proposed method of allocating the Net Settlement Fund to Class Members is also fair
and reasonable. The parties agreed to divide 95% of the NSA between all Class Members based on
14
that each Class Member’s total number of qualifying workweeks, divided by the aggregate number
15
of workweeks of all Class Members and multiplied by the value of 95% of the NSA. (Agreement, ¶
16
III.B.1.)
17
The remaining 5% of the NSA is to be distributed in the same manner, except that it will only
18
be distributed among members of the Subclass, which is comprised solely of former non-exempt
19
employees whose employment ended at any time between April 19, 2010 and preliminary approval.
20
The reason for the sub-class is that employees who are still employed by Del Monte are not entitled
21
to Lab. Code § 203 penalties, and thus, in order to avoid individual issues with respect to that portion
22
of Plaintiffs’ claims, a subclass comprised of former employees was allocated a portion of the NSA
23
specifically to compensate them for Lab. Code § 203 penalties. (Id. at ¶ III.B.2.)
24
25
26
27
This method of distribution is fair and reasonable because each class member’s actual
potential damages vary based on the number of workweeks that he or she worked. A class member
who worked for a large number of workweeks will have a larger potential claim than a class member
who worked a relatively small number of workweeks during the relevant time period. This method
for allocating the NSA to class members is fair, adequate, and reasonable because it reasonably
28
15
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
accounts for variations in class members’ work tenures, which reasonably correlates to the extent of
2
harm they allegedly suffered based on the claims asserted. (Setareh Decl, ¶ 10.)
4.
3
4
The High Claims Rate, and the Absence of Objections and Few Requests for
Exclusion, Also Show That the Settlement Is Fair, Adequate, and Reasonable
The high claims rate, low number of exclusions, and the absence of objections all support the
5
presumption of fairness and final approval of the Settlement. (See 7-Eleven Owners for Fair
6
Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1152-1153 [finding 9 objections, and 80
7
opt-outs, from a class of 5,454, showed a positive response from class members supporting settlement
8
approval].). Here, after being given Notice of the Settlement, only 61 class members (~0.77% of the
9
class) have requested exclusion from the Settlement, and, more importantly, no class members
10
objected to the Settlement. (Roe Decl., ¶¶ 21-22.).
11
approximately 77% of the NSA. (Id., ¶ 20). Accordingly, these statistics confirm that the class
12
members view the settlement as fair and reasonable and that the Settlement warrants final approval.
13
14
C.
The Court Should Finally Approve the Requested Attorneys’ Fees Because the
Amount Sought Is Fair, Adequate, and Reasonable
1.
15
16
17
18
19
20
21
22
Moreover, class members have claimed
As the prevailing parties in Settlement that has produced benefits for the
Class, Plaintiffs and the Settlement Class are entitled to recover their
attorneys’ fees from the Gross Settlement Amount per the terms of the
Settlement
Plaintiffs and the Settlement Class, as the prevailing party plaintiffs in settlement, are entitled
to recover their attorneys’ fees and costs for their wage claims. (See Lab. Code §§ 218.5, 226(e),
1194(a), 2699(g); Code Civ. Proc. § 1021.5(a).) A fee award is justified where the legal action has
produced its benefits by way of a voluntary settlement. (See, e.g., Maria P. v. Riles (1987) 43 Cal.3d
1281, 1290-1291; Westside Cmty. for Indep. Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 352-353.)
Here, the Settlement provides that Class Counsel may seek a fee award of up to $2,500,000
(1/3 of GSA) from the GSA. (Settlement, ¶ III.C.2.) Accordingly, the amount of Class Counsel’s fee
23
request is authorized under the Settlement.
24
25
26
27
2.
The Reasonableness of Class Counsel’s Requested Fee Award of One-Third
of the Gross Settlement Amount is Supported by the Relevant Caselaw, and
by the Experience of Class Counsel
When determining an attorneys’ fee award, “the primary basis of the fee award remains the
percentage method…” Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1050 (9th Cir. 2002). Moreover,
28
16
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
“[e]mpricial studies show that, regardless whether the percentage method or the lodestar method is
2
used, fee awards in class actions average around one-third of the recovery.” (See Chavez v. Netflix,
3
Inc. (2008) 162 Cal.App.4th 43, 66, fn.11 ; In re Pacific Enter. Sec. Litig. (9th Cir. 1995) 47 F.3d
4
373, 379 [affirming 33% fee award]; Williams v. MGM-Pathe Communications Co. (9th Cir. 1997)
5
129 F.3d 1026, 1027 (“MGM”) (awarding 33% of total fund amount).) Studies have also shown that
6
7
8
attorneys’ fee awards in class actions generally average about one-third of the settlement fund. (See,
Newberg on Class Actions, Appendix XI (4th ed.) (finding, based on a study of settlements in four
federal circuits, that “attorney’s fees were generally in the traditional range of one-third of the total
settlement”). This is also consistent with Class Counsel’s experience in wage and hour class actions,
9
in that Class Counsel is routinely awarded fees amounting to one-third of the settlement fund.
10
11
12
13
(Setareh Decl., ¶ 21.)
Indeed, it is an accepted practice in wage and hour class action settlements to award
attorneys’ fees to Class Counsel based on a percentage of the total settlement value agreed upon by
the parties. California courts have long recognized that an appropriate method for awarding
14
attorneys’ fees in class actions is to award a percentage of the fund. (Serrano III, 20 Cal.3d at pp. 48-
15
49 [“when a number of persons are entitled in common to a specific fund, and an action brought by a
16
plaintiff or plaintiffs for the benefit of all results in the creation or preservation of that fund, such
17
plaintiff or plaintiffs may be awarded attorney's fees out of the fund”]; Wershba, 91 Cal.App.4th at
18
p. 254; Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 26-30.)
19
Further, California courts regularly approve attorneys’ fees equaling one-third of the
20
common fund or higher. See, e.g., Chavez v. Netflix, Inc., supra, 162 Cal.App.4th at 66, n.11; Weber
21
v. Einstein Noah Restaurant Group, Inc., No. 37-2008-00077680 (San Diego Super. Ct.) (40%
22
award); Chalmers v. Elecs. Boutique, No. BC306571 (L.A. Super. Ct.) (33% award); Boncore v.
23
24
25
Four Points Hotel ITT Sheraton, No. GIC807456 (San Diego Super. Ct.) (33% award); Vivens, et al.
v. Wackenhut Corp., No. BC290071 (L.A. Super. Ct.) (31% award); Crandall v. U-Haul Intl., Inc.,
No. BC178775 (L.A. Super. Ct.) (40% award); Albrecht v. Rite Aid Corp., No. 729219 (San Diego
Super. Ct.) (35% award); Marroquin v. Bed Bath & Beyond, No. RG04145918 (Alameda Super. Ct.)
26
(33% award); In re Milk Antitrust Litig., No. BC070061 (L.A. Super. Ct.) (33% award); Sandoval v.
27
Nissho of California, Inc., No. 37-2009-00097861 (San Diego Super. Ct.) (33% award); In re Liquid
28
17
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
Carbon Dioxide Cases, No. J.C.C.P. 3012 (San Diego Super. Ct.) (33% award); In re California
2
Indirect-Purchaser Plasticware Antitrust Litigation, Nos. 961814, 963201, and 963590 (San
3
Francisco Super. Ct.) (33% award); Bright v. Kanzaki Specialty Papers, No. CGC-94-963598 (San
4
Francisco Super. Ct.) (33% award); Parker v. City of L.A., 44 Cal. App. 3d 556, 567-68 (1974) (33%
5
award); Kritz v. Fluid Components, Inc., No. GIN057142 (San Diego Super. Ct.) (35% award);
6
7
8
9
10
11
12
13
14
Benitez, et al. v. Wilbur, No. 08-01122 (E.D. Cal.) (33% award); Chavez, et al. v. Petrissans, et al.,
No. 08-00122 (E.D. Cal.) (33% award); and Leal v. Wyndham Worldwide Corp., No. 37-200900084708 (San Diego Super. Ct.) (38% award).
Accordingly, based upon the relevant caselaw, Class Counsel’s own experience in other class
actions, and similar results in California courts, Class Counsel’s request for a fee award equaling to
one-third of the GSA is fair, adequate, and reasonable.
3.
The results achieved, especially when weighed against the magnitude of the
contingent risks in this case, also support the fairness, adequacy, and
reasonableness of the fee request
Class Counsel obtained a substantial recovery for the Settlement Class in a case fraught with
risk. As discussed in the Memorandum of Points and Authorities in Support of Motion for
15
Preliminary Approval of Class Action Settlement previously filed with this Court, this case was
16
fraught with risk both on the merits and with regard to class certification.
17
Indeed, the wage and hour issues here are a developing area of case law with conflicting
18
authorities (and ever-increasing uncertainty) with respect to merits issues, and recent class action
19
practice has shown that obtaining class certification is often quite difficult. (Setareh Decl., ¶ 13.) In
20
addition, even where class certification is granted, a plaintiff still needs to prevail on the underlying
21
wage and hour claims (e.g., show that the employer failed to provide meal or rest periods or failed to
22
pay minimum or overtime wages) and overcome the employer’s defenses and possible motions for
23
summary judgment. (Id.)
24
25
26
27
Further, Class Counsel should be compensated for undertaking these risks on a pure
contingency basis. (Setareh Decl., ¶ 23.) (Vizcaino, supra, 290 F.3d at 1048-1049.) Since
undertaking representation of Plaintiffs in April 2013 (two years ago), Class Counsel have borne all
the costs of litigation without receiving any compensation to date. (Id.) During this time, they have
expended $13,711.56 in costs, and devoted substantial time to this litigation. (Id., ¶ 22.) Their efforts
28
18
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
included, among other things: (i) conferring with Plaintiffs to identify and gather information about
2
the claims in this lawsuit; (ii) drafting pleadings and correspondence with government agencies; (iii)
3
conducting formal and informal discovery; (iv) reviewing policy documents, employee handbooks,
4
collective bargaining agreements and payroll and time records from Defendants; (v) drafting a
5
detailed mediation brief, including a thorough damages analysis, and traveling to and participating in
6
7
8
a full-day mediation; (vi) drafting, finalizing, and obtaining approval of the Settlement; and (vii)
addressing post-Settlement issues such as the claims administration process. (Id.)
Given the considerable potential for adverse outcomes in this case, the contingent risk was
great. There is the possibility of class certification being denied, or of Defendant obtaining
9
individual settlement agreements with class members prior to trial, which would reduce the number
10
11
12
of class members. (Id., ¶ 23.) There is also the possibility of Defendant obtaining arbitration
agreements, which leads to the possibility that no class action can be undertaken. (Id.) This hardfought litigation took a considerable deal of time and effort that Class Counsel could have spent on
13
other cases. (Id.) The quality of Plaintiffs’ attorneys’ work, and the efficacy and dedication with
14
which it was performed, should be compensated. (See, e.g., J.N. Futia Co. v. Phelps Dodge Indus.,
15
Inc. (S.D.N.Y. 1982) 1982 U.S. Dist. LEXIS 15261.)
16
17
18
4.
Class Counsel’s experience in employment litigation as well as the caliber of
opposing counsel further support the fairness, adequacy, and
reasonableness of the fee request.
Class Counsel’s previous experience in litigating wage and hour class actions also supports
19
the reasonableness of the fee request, as does the caliber of opposing counsel. Class Counsel’s
20
previous experience in similar matters was integral in evaluating the strengths and weaknesses of the
21
case against Del Monte and the reasonableness of the Settlement. (Setareh Decl., ¶ 24.) Practice in
22
the narrow field of wage and hour litigation requires skill and knowledge concerning the rapidly
23
evolving substantive law, state and federal, as well as the procedural law of class action litigation.
24
25
26
27
(Id.) Because it is reasonable to compensate Class Counsel commensurate with their skill, reputation,
and experience, a fee award of one-third of the GSA is reasonable. (Id.)
Likewise, the caliber and experience of opposing counsel in labor and employment litigation
supports the fairness and reasonableness of the requested fee award. (Setareh Decl., ¶ 25 & Exh. C;
see, e.g., Vizcaino v. Microsoft Corp. (W.D. Wash. 2001) 142 F. Supp. 2d 1299, 1303.) Counsel for
28
19
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
Defendants, David Jacobson and Laura Maechtlen of Seyfarth Shaw LLP, have been practicing law
2
for a total of over thirty years, have extensive labor & employment litigation experience, and are
3
recognized as experts in the field. (Setareh Decl., ¶ 24 & Exh. C.) Against this formidable
4
opposition, Class Counsel achieved a favorable result on behalf of the Settlement Class. Thus, the
5
experience and skill of defense counsel also supports the fairness and reasonableness of Plaintiffs’
6
7
fee request.
5.
The absence of objections and low number of exclusions supports the
fairness, adequacy, and reasonableness of the fee request
8
The absence of objections to the Settlement also demonstrates the fairness and
9
reasonableness of the fee request. See Garner v. State Farm Mut. Auto Ins. Co., 2010 U.S. Dist.
10
LEXIS 49482, at *5 (N.D. Cal. 2010) (“a single objection out of a sizeable class, after notice,
11
further demonstrates the reasonableness and fairness of Class Counsels’ request”); In re Rite Aid
12
Corp. Sec. Litig., 396 F.3d 294, 305 (3d Cir. 2005) (low level of objections is “rare phenomenon”).
13
14
15
16
17
Notices of the Settlement were mailed to all 7,907 Class Members. (Roe Decl., ¶¶ 11-17.)
The notices informed them that Class Counsel would apply for attorneys’ fees of up to one-third of
the GSA, and reimbursement of costs of up to $20,000, and Class Members were advised of their
right to object to such requests. To date, no objections have been submitted, and only 61 exclusion
requests (only ~0.77% of the Class) have been received by the Settlement Administrator. (Id., ¶¶
21-22.) Thus, the absence of objections and/or requests for exclusion speaks to the fairness of the
18
19
20
requested fee award.
Based on these and other factors, Class Counsel has regularly received attorneys’ fees awards
amounting to approximately one-third of the settlement fund created. (Setareh Decl., ¶ 21.) It is an
21
accepted practice in wage and hour class action settlements to award attorneys’ fees to class counsel
22
based on a percentage of the total settlement value agreed upon by the parties. California courts have
23
long recognized that an appropriate method for awarding attorneys’ fees in class actions is to award
24
a percentage of the fund. (Serrano II, 20 Cal.3d at pp. 48–49 [“when a number of persons are
25
entitled in common to a specific fund, and an action brought by a plaintiff or plaintiffs for the benefit
26
of all results in the creation or preservation of that fund, such plaintiff or plaintiffs may be awarded
27
attorney's fees out of the fund”]; Wershba, 91 Cal.App.4th at p. 254; Lealao v. Beneficial California,
28
20
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
Inc. (2000) 82 Cal.App.4th 19, 26-30; see also Vizcaino, supra, 290 F.3d at 1050 (9th Cir.2002)
2
(“the primary basis of the fee award remains the percentage method”). Accordingly, this Court
3
should grant Class Counsel’s request for a fee award of $2,500,000, which represents one-third of
4
the GSA.
5
D.
6
Next, Class Counsel’s request for actual litigation costs of $13,711.56 is fair and reasonable.
The Requested Award of Costs Is Also Fair, Adequate, and Reasonable and
Warrants This Court’s Final Approval
7
This amount is to compensate Class Counsel for costs that were reasonably incurred in the
8
prosecution of this action, and the amount of the request is $6,288 less than the $20,000 provided for
9
in the Settlement. (Setareh Decl., ¶ 20 and Exh. B.) Per the Settlement, this extra amount ($6,288)
10
will become part of the NSA and will be available for distribution to class members who submit
11
valid and timely Claim Forms. (Settlement, ¶ III.C.2.)
12
The expenditure of costs by Class Counsel conferred a significant benefit to the Class, in that
13
Class Counsel completely financed this risky litigation. Among other costs, Class Counsel fronted
14
thousands of dollars in filing fees, service of process fees, mediator’s fees, and travel costs. Each of
15
these expenditures increased the value of the case significantly, since without expending these costs
16
17
18
19
the case could not have moved forward to a favorable resolution. (Setareh Decl., ¶ 20.) Accordingly,
Class Counsel’s request for litigation costs is reasonable and should be finally approved.
E.
This Court Should Finally Approve the Requested Administration Costs
Because the Amount Sought Is Fair, Adequate, and Reasonable
Consistent with the request made in Plaintiffs’ Motion for Preliminary Approval of Class
20
Action Settlement, Plaintiffs also request an award of $42,000 from the GSA on behalf of Rust
21
Consulting, Inc. for its services as settlement administrator. This request, too, is fair and reasonable
22
and should be finally approved. Without Rust’s work on this case, class members would not have
23
received notice of the Settlement, nor would they receive their share of the Settlement proceeds. The
24
work performed by Rust in administration of this Settlement includes, but is not limited to: (i)
25
providing notice to class members; (ii) calculating each class member’s share of the Settlement; (iii)
26
tracing addresses of class members and re-mailing notice when necessary; (iv) obtaining a mailing
27
address, toll-free telephone number, and facsimile number specifically for the Settlement, and
28
21
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
establishing a website for class members to access Settlement-related documents; (v) reviewing and
2
processing claim forms, exclusions, or any objections from class members; (vi) reporting to Counsel
3
regarding status; and (vii) distributing the Settlement funds. (See Roe Decl. at ¶¶ 3-22.) Given the
4
amount of work performed by Rust in connection with the Settlement and the necessity of its work
5
to the successful administration of the Settlement and payment to the Class, the $42,000 sought for
6
7
8
Rust from the GSA is reasonable.
As explained in the accompanying Roe Declaration, however, this amount is far below the
actual cost to Rust in administering the Settlement. Although Rust originally estimated that its costs
would be between $42,000 and $50,000, due to the additional 416 class members and the much
9
higher than anticipated claims rate, Rust estimates that its actual costs in administering the
10
11
settlement will be approximately $97,000. (Roe Decl., ¶¶ 23-24.)
Accordingly, the parties and Rust have come to an agreement with respect to the anticipated
12
$55,000 shortfall in Rust’s settlement administration costs that will not decrease the amount paid to
13
class members, since it does not result in Rust’s receipt of any funds that were originally earmarked
14
for distribution to class members. Rather, Class Counsel has agreed to compensate Rust $8,000 out
15
of Class Counsel’s award of attorneys’ fees (bringing Rust’s total compensation to $50,000), and the
16
parties have further agreed that Rust will receive up to $47,000 from any “FUTA credit” funds that
17
are not required to be paid to the IRS. Per the Settlement, Rust is required to calculate and withhold
18
all taxes required on the settlement payments. One of the taxes Rust is required to withhold is
19
Federal Unemployment Tax (“FUTA”). Rust currently estimates that approximately $70,000 will be
20
withheld to satisfy FUTA obligations. However, there is a question as to whether the entire $70,000
21
withheld for FUTA will be required to be paid. This question will be answered when the IRS issues
22
a ruling on this issue, with a ruling anticipated later this year or early next year. (Roe Decl, ¶ 24.)
23
24
25
Until the ruling, Rust is required to withhold the FUTA. However, in the event that the IRS
ultimately rules that the FUTA funds are not required to be paid, the parties and Rust have agreed
that any portion of the FUTA credit that is not required to be paid to the IRS will be applied to
satisfy any amounts due to Rust over and above $50,000, up to a maximum of $47,000. Any
26
amounts not paid to FUTA over and above $47,000 will be donated to Central California Legal
27
Services, a non-profit legal aid service that provides free civil legal services to low-income
28
22
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
individuals, families, and communities in the San Joaquin Valley. In the event that the total FUTA
2
credit is required to be paid to the IRS, Rust agrees not to seek payment for any fees and costs in this
3
matter over and above $50,000. (Id.)
4
5
6
7
8
As stated, this agreement does not reduce the amounts distributed to class members. Thus,
the above agreement potentially reimburses Rust for all of its administration costs (above the
original estimate), without decreasing the amounts distributed to class members. Accordingly,
Plaintiffs’ request for a $42,000 administration cost award to Rust Consulting, Inc. from the GSA,
that $8,000 be paid to Rust out of Plaintiffs’ attorneys’ fees award, and the parties’ agreement
regarding the remaining $47,000 of administration costs and fees, is fair, reasonable and should be
9
finally approved.
10
11
12
F.
This Court Should Finally Approve the Requested Service Payments Because the
Amount Sought Is Fair, Adequate, and Reasonable
Courts routinely approve incentive awards to compensate named plaintiffs for the services
13
they provide and the risks they incur during class action litigation, often in much higher amounts
14
than that sought here. (See, e.g., Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 726
15
[upholding “service payments” to named plaintiffs for their efforts in bringing the case]; Ingram v.
16
17
18
19
Coca-Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001) [approving incentive awards of $300,000 to
each named plaintiff in recognition of services to class by responding to discovery, participating in
mediation process and taking the risk of stepping forward]; see also VanVranken v. Atl. Richfield
Co., 901 F. Supp. 294, 300 (N.D. Cal. 1995) [approving $50,000 participation award].)
Pursuant to the Settlement, Plaintiffs Negrete and Philips request an incentive award of
20
21
22
23
$5,000 each (Settlement, ¶ III.C.1.) in exchange for their service as class representatives and their
general release of claims (Id., ¶ III.G.1.). These awards, if approved, total just 0.13% of the GSA.
Plaintiffs’ efforts in this case included, but were not limited to: (i) obtaining counsel, (ii)
assisting counsel in prosecuting the case, including speaking with counsel regarding their claims and
24
Del Monte’s policies and procedures; (iii) speaking with counsel on multiple occasions regarding
25
case strategy and development, (iv) working with counsel in mediating the case and in negotiating
26
the Settlement, (v) actively participating in the process of reaching the Settlement, and reviewing the
27
Settlement to ensure it was fair and reasonable for the Class; and otherwise generally assisting their
28
23
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
2
3
4
5
6
7
8
Shaun Setareh (SBN 204514)
[email protected]
Tuvia Korobkin (SBN 268066)
[email protected]
Neil Larsen (SBN 276490)
[email protected]
SETAREH LAW GROUP
9454 Wilshire Boulevard, Suite 907
Beverly Hills, California 90212
Telephone:
(310) 888-7771
Facsimile:
(310) 888-0109
Attorneys for Plaintiffs,
ROBERT MONTGOMERY, ARACELI NEGRETI, and CAROL PHILIPS
9
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
FOR THE COUNTY OF KINGS
(UNLIMITED JURISDICTION)
12
13
14
15
16
17
ROBERT MONTGOMERY, ARACELI
NEGRETE, and CAROL PHILIPS, on behalf of
themselves, all others similarly situated, and the
general public,
Plaintiffs,
vs.
18
19
20
DEL MONTE CORPORATION, a Delaware
corporation; DEL MONTE FOODS, INC., a
Delaware corporation; and DOES 1–50,
inclusive,
21
22
Defendants.
Case No. 519070
DECLARATION OF SHAUN SETAREH IN
SUPPORT OF MOTION FOR FINAL
APPROVAL OF CLASS ACTION
SETTLEMENT AND APPLICATION FOR
ATTORNEYS’ FEES, COSTS, AND
SERVICE PAYMENT
Hearing Information
Date:
May 18, 2015
Time:
9:00 a.m.
Location:
Department 4
Judge:
Hon. James T. LaPorte
23
24
25
26
27
28
DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
2
3
DECLARATION OF SHAUN SETAREH
I, SHAUN SETAREH, declare as follows:
1.
I am an attorney in good standing duly admitted to the State Bar of California, am
4
attorney of record for Plaintiffs Araceli Negrete and Carol Philips (“Plaintiffs”), and Class Counsel
5
for the Settlement Class in this action against Defendants Big Heart Pet Brands (“BHPB”) (f/k/a Del
6
Monte Corporation and the seller of certain assets to Del Monte Foods, Inc.) and Del Monte Foods,
7
Inc. (“DMFI”) (collectively “Del Monte” or “Defendants”).
8
9
10
11
2.
Except for those matters stated on information and belief, which I am informed and
believe are true and correct, I have personal knowledge of all matters set forth herein. If called as a
witness, I could and would competently testify thereto.
3.
I received my undergraduate degree at UCLA in 1996 and my law degree from
12
Loyola Law School in 1999. Since being admitted to the State Bar of California in 1999, I have
13
actively practiced civil litigation for the entirety of that time period.
14
4.
I have been involved as lead class counsel, co-lead class counsel, and other levels of
15
involvement in over 100 wage and hour, consumer, and antitrust class action cases. The following is
16
a sampling of class actions in which I have been appointed as class counsel:
17
a. Padilla v. UPS, U.S. District Court, Central District of California, Case No. 08-
18
CV-1590 (granted final approval in a case involving claims for failure to provide
19
meal periods to part time employees engaged in sort operations and failure to pay
20
final wages in a timely manner to terminated employees).
21
b. Vang v. Burlington Coat Factory Warehouse Corp., U.S. District Court, Central
22
District of California Case No. 09-CV-8061 (granted final approval in a case
23
involving, among other things, vacation pay forfeitures, failures to provide meal
24
and rest periods, and failures to pay overtime wages based on employee
25
misclassification).
26
c. Garcia v. Am. Gen. Fin. Mgmt. Corp., U.S. District Court, Central District of
27
California, Case No. 09-CV-1916 (granted final approval in a case filed on
28
1
DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
behalf of account managers in case involving, among other things, alleged
2
overtime miscalculations and meal and rest period violations).
3
d. O’Neill v. Genesis Logistics, Inc., U.S. District Court, Northern District of
4
California, Case No. 08-CV-4707 (granted final approval in a case involving
5
claims for failure to provide meal periods to employees who worked as drivers
6
delivering goods to 7-11 stores throughout California and failure to pay final
7
wages in a timely manner to terminated employees).
8
e. Spokes v. Lush Cosmetics, LLC, Los Angeles Superior Court, Case No.
9
BC391397 (granted final approval in a case alleged failures to provide meal and
10
rest periods and failure to timely pay all final wages to California sales associates
11
and key holders).
12
f. Green v. Staples Contract and Commercial, Inc., Los Angeles Superior Court,
13
Case No. BC389789 (granted final approval in a case involving claims for
14
unprovided meal and rest periods, inaccurate wage statements, waiting time
15
penalties, and unfair business practices on behalf of truck drivers delivering
16
Staples office supplies in California).
17
g. Green v. Universal Music Group, Los Angeles Superior Court, Case No.
18
BC374253 (granted final approval in a case involving misclassification claims of
19
current or former IT Support employees, including engineers, server analysts,
20
desktop support, and technical leads).
21
h. Jones v. Shred-It USA, Inc., U.S. District Court, Central District of California,
22
Case No. 11-CV-00526 (granted final approval in a case brought on behalf of
23
customer service representatives and balers for alleged off-the-clock work and
24
meal and rest period violations).
25
i. Alvarez v. Gary Grace Enterprises, LP, Marin Superior Court, Case No. CIV
26
1002553 (granted final approval in a case on behalf of hair salon employees for
27
overtime miscalculation and related claims).
28
2
DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
j. Calderon v. GreatCall, Inc., San Diego Superior Court, Case No. 37-2010-
2
00093743-CU-OE-CTL (granted final approval in a case on behalf of customer
3
service employees for, among other things, alleged meal and rest period
4
violations and overtime calculation errors).
5
k. Douglas v. California Credit Union, Los Angeles Superior Court, Case No.
6
BC445050 (granted final approval in a case on behalf of customer service
7
representatives alleging overtime miscalculation claims).
8
l. Cerdenia v. USA Truck, Inc., U.S. District Court, Central District of California,
9
Case No. 10-CV-1489-JVS (granted final approval in an action on behalf of
10
truck drivers for meal and rest period violations, off-the-clock pre- and post-shift
11
work, and unauthorized wage deductions).
12
m. Butler v. Lexxiom, Inc., San Bernardino Superior Court, Case No. CIVRS
13
1001579 (granted final approval in an action on behalf of debt resolution center
14
employees alleging, among other things, meal and rest period violations and
15
overtime calculation errors).
16
n. Valencia v. SCIS Air Security Corp., Los Angeles Superior Court, Case No.
17
BC421485 (granted class certification through contested motion in case on
18
behalf of former security workers based on late final wage payments in violation
19
of Labor Code §§ 201–203; subsequently granted preliminary approval of
20
proposed class action settlement).
21
o. Sandoval v. Rite Aid Corp., Los Angeles County Superior Court, Case No.
22
BC431249 (granted class certification through contested motion in case on
23
behalf of former pharmacy employees based on late final wage payments in
24
violation of Labor Code §§ 201–203; subsequently granted final approval of
25
class action settlement).
26
p. Tiwari v. Merrill’s Packaging, Inc., San Mateo Superior Court, Case No. 519070
27
(granted final approval in action on behalf of packaging workers alleging, among
28
3
DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
other things, meal and rest period violations and failure to pay wages for time
2
spent donning and doffing equipment).
3
5.
As the above shows, I have substantial experience in wage and hour class action
4
litigation, including in actions alleging failure to provide meal and/or rest periods, failure to pay
5
minimum and/or overtime wages, failure to provide accurate wage statements, and failure to provide
6
timely final wage payments. I am knowledgeable about the applicable law, have worked diligently to
7
investigate and identify the potential claims in this action, and will continue to commit my firm’s
8
resources to further the interests of the Class.
9
6.
On June 24, 2014, the parties participated in a mediation session with Mark Rudy,
10
Esq., a highly regarded neutral with extensive experience in wage and hour class action litigation,
11
and agreed in principle to the Settlement. In connection with the mediation, Plaintiffs obtained
12
extensive informal discovery concerning, among other things, contact information for approximately
13
300 class members, many of whom Plaintiffs’ counsel contacted and interviewed; copies of Del
14
Monte’s wage and hour policies and relevant collective bargaining agreements; and extensive
15
electronic data concerning class members’ wages and hours worked. In all, Del Monte produced
16
more than 3,000 pages of documents plus dozens of electronic spreadsheets containing tens of
17
thousands of lines of relevant time records and payroll data.
18
7.
Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement in this case was
19
filed on November 10, 2014. On December 4, 2014, this Court granted the Motion and signed its
20
Order Granting Preliminary Approval of Class Action Settlement. Attached hereto as Exhibit A is a
21
true and correct copy of said Order.
22
8.
When the Court granted preliminary approval of the Settlement on December 4, 2014,
23
it found that the Settlement Class meets the requirements for class certification for settlement
24
purposes only under Code of Civil Procedure § 382 and found that the Settlement appears to be fair,
25
adequate, and reasonable based on the considerations presented to the Court at that time (Prelim.
26
Approval Order, ¶¶ 1-2). As of the filing of this Motion, Class Counsel is unaware of any new
27
decisions from the U.S. Supreme Court, the U.S. Court of Appeals for the Ninth Circuit, the
28
4
DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
California Supreme Court, or any lower California appellate courts that mark a serious departure
2
from the law as it existed at the time of preliminary approval so as to cast doubt on any of these
3
determinations.
4
Fairness of Distribution
5
9.
6
7
8
9
10
Under the Settlement, 95% of the NSA will be allocated for distribution among Class
Members who submitted valid and timely Claim Forms, based on each Class Member’s total number
of qualifying workweeks, divided by the aggregate number of workweeks of all Class Members and
multiplied by the value of 95% of the NSA. (Agreement, ¶ III.B.1.) The remaining 5% of the NSA is
to be allocated for distribution in the same manner, except that it will only be allocated for
distribution among members of the Subclass, which is comprised solely of former non-exempt
11
employees whose employment ended at any time between April 19, 2010 and preliminary approval.
12
13
14
15
The reason for the sub-class is that employees who are still employed by Del Monte are not entitled
to Lab. Code § 203 penalties, and thus, in order to avoid individual issues with respect to that portion
of Plaintiffs’ claims, a subclass comprised of former employees was allocated a portion of the NSA
specifically to compensate them for Lab. Code § 203 penalties. (Id. at ¶ III.B.2.).
16
10.
This method of distribution is fair and reasonable because each class member’s actual
17
potential damages varies based on the number of workweeks that he or she worked. A class member
18
who worked for a large number of workweeks will have a larger potential claim than a class member
19
who worked a relatively small number of workweeks during the relevant time period. This method
20
for allocating the NSA to Class Members is fair, adequate, and reasonable because it reasonably
21
accounts for variations in Class Members’ work tenures, which reasonably correlates to the extent of
22
harm they allegedly suffered based on the claims asserted.
11.
23
24
25
26
27
28
As stated in the Declaration of Stacy Roe (filed herewith), the average settlement
payment is expected to be approximately $709, and the highest estimated payment is expected to be
$1,152. This is an excellent result for class members, especially since most Class Members are
seasonal workers who only work for Del Monte for about 3 or 4 months per year.
///
5
DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
2
Overwhelmingly Positive Reaction of the Class to the Settlement, Including the Absence of
Objections and Relatively Few Exclusions, Supports Reasonableness of Settlement
12.
As set forth in more detail in the Declaration of Stacy Roe (filed herewith), the
3
reaction of Class Members to the Settlement has been overwhelmingly positive. As of the date of the
4
5
6
7
filing of this Motion, the Class has already claimed approximately 77% of the Net Settlement
Amount, there have been only 61 requests for exclusion (~0.77% of the Class), and zero objections
have been received. This extremely positive reaction of the Class to the Settlement further supports
the fairness, reasonableness, and adequacy of the Settlement.
8
9
Risks of Continued Litigation Support Reasonableness of Settlement
13.
The extent of risk involved in this case supports the fairness, adequacy, and
10
reasonableness of the Settlement and of Class Counsel’s fee request. The wage and hour issues in
11
this case cover developing areas of case law with conflicting authorities (and ever-increasing
12
uncertainty) with respect to merits issues, and recent class action practice has shown that obtaining
13
class certification is often quite difficult, especially in cases involving employee classification.
14
Indeed, to successfully prosecute a wage-and-hour class action, a plaintiff must first show that the
15
underlying wage and hour claims can be adjudicated on a class-wide basis. In addition, even where
16
class certification is granted, a plaintiff still needs to prevail on the underlying wage and hour claims
17
(e.g., show that the employer failed to provide meal periods or pay for all hours worked) and
18
overcome the employer’s affirmative defenses to establish class-wide liability. Moreover, even if a
19
plaintiff is successful, there is the risk that the employer may appeal, which injects even more risk
20
into the case and lengthens the life of already-protracted class litigation. There is also a risk that a
21
plaintiff’s future employment prospects would be adversely affected by filing a class action lawsuit
22
against an employer, even if the lawsuit is successful.
23
14.
There are risks with respect to obtaining, and maintaining, class certification for trial
24
purposes that support the fairness of the Settlement. For example, in the recent cases of Brinker
25
Restaurant Corp. v. Sup. Ct. (2012) 53 Cal.4th 1004 and Bradley v. Networkers International, LLC
26
(2012) 211 Cal.App.4th 1129, the plaintiffs were unable to certify claims for unpaid “off-the-clock”
27
28
6
DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
time due to their inability to prove such claims through the defendants’ records. Moreover, the
2
California Supreme Court’s recent decision in Duran v. U.S. Bank (2014) 59 Cal.4th 1 makes class
3
certification even less certain given its antipathy towards using “sampling” as a basis for ascertaining
4
class-wide liability and/or damages. Accordingly, Plaintiffs would likely encounter extreme
5
difficulty in certifying most of the claims in this case because, while they present substantial
6
common liability issues, they also give rise to individual damages issues.
7
15.
There are also substantial risks with respect to establishing the merits of Plaintiffs’
8
claims. As explained in Plaintiffs’ Motion for Preliminary Approval, Del Monte vigorously disputed
9
Plaintiffs’ meal and rest break claims and damages analysis. Del Monte argued that it maintained
10
and enforced lawful policies regarding rest and meal breaks. Moreover, Del Monte claims there is no
11
written or unwritten rule or policy requiring employees to don and doff any work gear off-the-clock
12
or to perform any work off-the-clock. To the contrary, Del Monte contends that its employees are
13
prohibited from working off-the-clock, and that it is physically impossible for many of them to do
14
so: Del Monte employees primarily work on assembly lines and cannot start working until the
15
person they are replacing on the line is finished with his/her shift, and employees are required to
16
cease work immediately at the end of their shifts. Del Monte also produced (pursuant to the
17
mediation privilege) excerpts of multiple declarations from Del Monte employees stating that they
18
were provided with legally sufficient meal and rest periods and that they were not required to don or
19
doff work-related gear off-the-clock or perform any other work off-the-clock.
20
16.
The merits issue is especially uncertain given the U.S. Supreme Court’s decision in
21
Sandifer v. U.S. Steel, 134 S.Ct. 870 (2014), which further restricted the compensability of time
22
spent donning and doffing work-related gear. Furthermore, Del Monte contends that the donning and
23
doffing takes a minute or two at most and, even if such time would otherwise be compensable, it is
24
de minimis and therefore no liability could attach for such alleged off-the-clock time.
25
17.
Del Monte’s affirmative defenses and the uncertainty surrounding the merits of
26
Plaintiffs’ underlying claims could potentially preclude most of the penalties sought in this case.
27
Labor Code §§ 203 and 226(e)(1) both require proof of “willful” or “knowing and intentional” Labor
28
7
DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
Code violations for liability to be imposed. Thus, the existence of a good faith dispute that could
2
preclude any recovery of wages (even if the plaintiff ultimately prevails) can preclude these penalties
3
from being awarded. 8 Cal. Code Regs. § 13520(a); Road Sprinkler Fitters Local Union No. 669 v.
4
G&G Fire Sprinklers, Inc. (2002) 102 Cal.App.4th 765, 782. See also, Choate v. Celite Corp.
5
(2013) 215 Cal.App.4th 1460 (reversing award of waiting time penalties based on employer’s good
6
faith defense notwithstanding that the plaintiffs prevailed on the underlying wage claims).
7
18.
To the extent that other penalties sought under the PAGA do not have such scienter
8
requirements, the trial court is afforded significant latitude in awarding PAGA penalties that could
9
result in a substantially diminished penalty award or even no penalty at all. See, Lab. Code §
10
2699(e)(2) (the court in its discretion “may award a lesser amount than the maximum civil penalty
11
amount specified by this part…”); see also, Thurman v. Bayshore Transit Mgmt., Inc. (2012) 203
12
Cal.App.4th 1112, 1135-1136 (affirming reduction of PAGA penalty award by trial court).
13
Moreover, the vast majority of any PAGA penalties awarded would not be distributed to class
14
members in any event (see Lab. Code § 2699(i) -- 75% of PAGA penalties are distributed to the
15
LWDA and only 25% to aggrieved employees)), and therefore class members’ recovery of any
16
PAGA penalties would be drastically lower than Del Monte’s projected potential liability, even if
17
this case were ultimately successful at trial.
18
19.
Each of these factors bore heavily on the negotiations leading to the Settlement. In
19
view of these risks, the Settlement reflects a fair, adequate, and reasonable compromise amount for
20
these claims and warrants final approval. Further, the policy under California law in favor of
21
settlement in class actions and other complex cases applies with particular force in this case.
22
Certainty of recovery is enhanced by an equitable and timely consummated settlement such as that
23
under consideration in this case. Tensions created in the employment relationship in the litigation
24
process are alleviated by such settlements as opposed to a trial of the matter, and all parties are in a
25
better position to move forward with their roles in the economy. The expense of protracted litigation
26
in these cases is formidable.
27
///
28
8
DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
2
Actual Litigation Costs
20.
Attached hereto as Exhibit B is a true and correct copy of my firm’s costs record for
3
this case, showing total costs incurred of $13,711.56 in financing this litigation. Accordingly, Class
4
Counsel requests a total of $13,711.56 in litigation costs. This request is reasonable given that the
5
costs incurred were all reasonably necessary in advancing the litigation and thereby conferred a
6
significant benefit to the Class. Such costs include, but are not limited to filing fees, service of
7
process fees, mediator’s fees, and travel expenses, among other things. Each of these expenditures
8
increased the value of the case significantly, since without expending these costs the case could not
9
have moved forward to a favorable resolution. Accordingly, this request is reasonable. Moreover,
10
Class Counsel’s requests costs are lower than the $20,000 provided under the Settlement, further
11
demonstrating the reasonableness of the request.
Attorneys’ Fees
12
13
21.
The amount of Class Counsel’s fee request ($2,500,000, or one-third of the Gross
14
Settlement Amount) is reasonable as a percentage of the settlement fund. I have been awarded
15
attorneys’ fees equaling approximately one-third of the fund in several recent wage and hour class
16
actions, including, but not limited to: O'Brien v. Optima Network Services, Inc., San Bernardino
17
County Superior Court, Case No. CIVRS1107056 (one-third of fund); Noyd v. The Cristcat Group,
18
et al., Los Angeles County Superior Court, Case No. BC439558 (one-third of fund); Perez v.
19
Southwest Dealer Services, Inc., Los Angeles County Superior Court, Case No. BC439253 (one-
20
third of fund); Alvarez v. Gary Grace Enterprises, LP, Marin County Superior Court, Case No.
21
CIV1002553 (one-third of fund); Calderon v. Greatcall, Inc., San Diego Superior Court, Case No.
22
37-2010-00093743-CU-OE-CTL (one-third of fund); Butler v. Lexxiom, Inc., San Bernardino
23
County Superior Court, Case No. CIVRS1001579 (one-third of fund); Huynh v. Carefusion
24
Resources, LLC, et al, San Diego County Superior Court, Case No. 37-2009-00103277-CU-OE-CTL
25
(one-third of fund); Stucker v. L’Oreal USA S/D, Inc., Los Angeles County Superior Court, Case No.
26
BC456080 (one-third of fund); Sandoval v. Thrifty Payless, Inc., Los Angeles County Superior
27
Court, Case No. BC431249 (one-third of fund); Tucker v. Maly’s West, Inc., Los Angeles County
28
9
DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
Superior Court, Case No. BC483920 (one-third of fund); Tiwari v. Merrill’s Packaging, Inc., San
2
Mateo Superior Court, Case No. 519070 (one-third of fund). Moreover, and as stated in Plaintiffs’
3
Motion, the caselaw recognizes that fee awards in California class actions average around one-third
4
of the recovery, and many California courts routinely award fees of one-third or more of the fund.
5
(See, e.g., Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 66, fn.11, and cases cited in Plaintiffs’
6
Motion.)
7
22.
My firm and I expended a large amount of time, energy, and resources in prosecuting
8
this action, which resulted in an excellent result for Class Members, and which has been received by
9
Class Members with an overwhelmingly positive response. The work performed by my firm in
10
prosecuting this case includes, but is not limited to: (i) interviewing Plaintiffs, conducting pre-
11
litigation investigation, and developing the theories and facts to support Plaintiffs’ core claims of
12
failure to provide meal and rest periods and failure to pay for all hours worked; (ii) drafting and
13
submitting a detailed claim notice to the California Labor and Workforce Development Agency
14
(“LWDA”) in accordance with the California Labor Code Private Attorneys General Act of 2004
15
(the “PAGA”); (iii) drafting initial pleadings, including but not limited to the Complaint, First
16
Amended Complaint, Second Amended Complaint, and Third Amended Complaint; (iv) reviewing
17
several thousand pages of documents produced by Defendants, including Del Monte’s wage-and-
18
hour policies, practices, and procedures and the relevant collective bargaining agreements, plus tens
19
of thousands of lines of payroll data and time records; (v) communicating with Plaintiffs and with
20
opposing counsel throughout the litigation; (vi) interviewing putative class members; (vii) preparing
21
for mediation, including drafting a detailed mediation brief and performing a detailed damages
22
analysis; (viii) traveling to and attending a full-day mediation in San Francisco, in which the parties
23
engaged in difficult arm’s-length negotiations aided by the mediator, Mark Rudy, Esq.; (ix) drafting
24
other pleadings, including Case Managements Statements, Stipulations, and other filings; (x)
25
drafting and revising the Settlement agreement with opposing counsel; (xi) drafting and reviewing
26
the Motion for Preliminary Approval as well as the instant Motion for Final Approval; (xii) traveling
27
to and attending the hearing on the Motion for Preliminary Approval; (xiii) communicating with the
28
10
DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
Settlement Administrator to ensure that the Class Notice and claims process was effected smoothly
2
and fairly; and (xiv) traveling to and attending the Final Approval hearing on May 18, 2015. As
3
detailed above, my firm also incurred $13,711.56 in litigation costs in pursuing this case on behalf of
4
the Class that would not have been recoverable had Plaintiffs lost this case.
5
23.
The fee award of $2,500,000 is justified here because Class Counsel achieved a
6
strong result for the Settlement Class in an extremely risky case while bearing substantial burdens of
7
representation on a contingency basis (including fronting all of the costs herein). Class Counsel
8
negotiated a substantial recovery for Class Members, in the face of serious defense challenges. The
9
wage and hour issues here are a developing area of case law, and recent class action practice has
10
shown that obtaining class certification is quite difficult, especially where, as here, questions of
11
individual damages potentially bear on the manageability of the class action. Class Counsel have
12
borne the entire risk and cost of this litigation on a pure contingency basis, and these risks were
13
substantial given that wage and hour cases routinely require a great expenditure of attorney time and
14
money, with uncertain outcome. There is the possibility of class certification being denied, or of
15
Defendant obtaining individual settlement agreements with class members prior to trial, which
16
would reduce the number of class members. There is also the possibility of Defendant obtaining
17
arbitration agreements, which leads to the possibility that no class action can be undertaken. This
18
hard-fought litigation took a considerable deal of time and effort that Class Counsel could have spent
19
on other cases. Moreover, based on the foregoing risks, if Plaintiffs had lost the case, there would
20
have been no compensation to Plaintiffs or to Class Counsel, nor would Class Counsel have been
21
reimbursed for their costs incurred or paid at all for their time.
22
24.
Class Counsel’s previous experience in litigating wage and hour class actions also
23
supports the reasonableness of the fee request. Class Counsel’s previous experience in similar
24
matters was integral in evaluating the strengths and weaknesses of the case against Del Monte and
25
the reasonableness of the Settlement. Practice in the narrow field of wage and hour litigation requires
26
skill and knowledge concerning the rapidly evolving substantive state and federal law, state and
27
federal procedure, as well as the procedural law of class action litigation. Because it is reasonable to
28
11
DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
compensate my firm commensurate with our skill, reputation, and experience, a fee award of one-
2
third of the Gross Settlement Amount is reasonable.
3
25.
The caliber of defense counsel, David Jacobson and Laura Maechtlen of Seyfarth
4
Shaw LLP, also supports the reasonableness of the fee request. Attached hereto as Exhibit C are true
5
and correct copies of the biographical pages for Mr. Jacobson and Ms. Maechtlen from the website
6
for Seyfarth Shaw LLP, including a list of speaking engagements and published articles by Ms.
7
Maechtlen. Mr. Jacobson and Ms. Maechtlen have been practicing law for a total of over thirty
8
years, have extensive labor & employment litigation experience, and are recognized as experts in the
9
field. Accordingly, defense counsel’s considerable experience and skill is another factor that further
10
11
supports the reasonableness of the fee request.
26.
Several additional factors also show that the amount of Class Counsel’s fee request is
12
fair, adequate, and reasonable, which include, but are not necessarily limited to, the complexity of
13
the claims involved, the impact of the litigation on Class Counsel’s ability to obtain and perform
14
other work, and the applicability of fee-shifting statutes to the claims asserted. This amount is also
15
less than the amount that I would receive if I individually represented each Class Member under my
16
regular contingency fee agreements that authorize fees of up to 40% of the ultimate recovery.
17
27.
As noted, the Settlement has a high claims rate, no class members have objected to
18
the Settlement or any of its terms, and very few have requested exclusion. Thus, the popularity of the
19
Settlement among Class Members further shows that the Settlement, including the provisions
20
regarding Class Counsel’s fees and costs, are fair, reasonable, and adequate.
21
22
23
24
25
26
Service Payment to Plaintiffs
28.
The proposed $10,000 service payment to Plaintiffs ($5,000 to Plaintiff Negrete and
$5,000 to Plaintiff Philips) is reasonable and warrants final approval. As testified to in their
respective declarations (filed herewith), Plaintiffs have each devoted considerable time to this case in
assisting Class Counsel and otherwise working in the interests of the Class towards moving this case
to successful resolution. Among the ways in which Plaintiffs have assisted in the prosecution and
advancement of this case are: (i) providing Class Counsel with information about their work
27
experience at Del Monte; (ii) communicating with Class Counsel throughout the litigation; (iii)
28
12
DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
EXHIBIT A
' ·.
ORI INAL
•
•
Shaun S~tareh (SBN 204514)
[email protected]
Tuvia
Korobkin
(SBN 268066)
2
tuvia@setarehlaw .com
3 · Neil Larsen (SBN 276490)
[email protected]
4
SETAREH LAW GROUP
9454 Wilshire Boulevard, Ste. 907
5
Beverly Hills, California 90212
Tel:
(310) 888-7771
6
Fax: (310) 888-0109
Attorneys for Plaintiffs,
7
ROBERT MONTGOMERY, ARACELI NEGRETE and CAROL PHILIPS
8
FlLED
1
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF KINGS
(UNLIMITED JURISDICTION)
11
12
13
14
ROBERT MONTGOMERY, ARACELI
NEGRETE, and CAROL PHILIPS, on behalf
of themselves, all others s.imilarly situated, and
the general public,
15
Case No. 13 C 0204
[PROPOSED) ORDER GRANTING
PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT
Plaintiffs,
16
17
18
19
vs.
DEL MONTE CORPORATION, a Delaware
corporation; DEL MONTE FOODS, INC., a
Delaware corporation; and DOES 1-50,
inclusive,
20
Defendants.
21
Hearing Information
Date:
December 4, 2014
Time:
9:00 a.m.
Department: 4
Judge:
Hon. James T. LaPorte
BYFA
22
23
24
25
26
27
28
[Proposed] Order Granting Preliminary Approval of Class Action Settlement
•
1
[PROPOSED] ORDER
2
3
Plaintiffs Araceli·Negrete and Carol Philips' ("Plaintiffs" or "Named Plaintiffs") unopposed
Motion
I
4 · for Preli111inary Approval of Class Action Settlement (the "Motion") came on regularly for hearing
5
6
7
8
9
before the Honorable James T. LaPorte, Judge presiding.
After full consideration of all the materials filed in support of the Motion, and after hearing the
arguments of counsel, AND GOOD CAUSE APPEARING THEREFROM,. the Court makes the
following fmdings and orders:
1.
The Court GRANTS preliminary approval of the Settlement pursuant to Rule of Court
3.769 based upon the terms set forth in the Settlement Agreement (" Settlement" or
10
"Settlement Agreement") attached to the Declaration of Shaun Setareh.
11
2.
12
13
benefit to the Settlement Class.
3.
14
15
4.
5.
Named Plaintiffs' counsel, Shaun Setareh of the Setareh Law Group, is experienced in
matters of this nature and is appointed as Class Counsel for the Settlement Class.
6.
20
21
Named Plaintiffs Araceli Negrete and Carol Philips are suitable class representatives and
are.appointed as the Class Representatives for the Settlement Class.
18
19
The Settlement was reached through good faith and arm's length negotiation with the
assistance of an experienced mediator.
16
17
The Settlement as proposed appears to be fair and reasonable and to provide significant
The proposed Settlement Class and proposed Setlement Subclass, defined in the
Settlement, are provisionally certified for ·purposes of the Settlement only.
7.
The notice provision in the Settlement is constitutionally sound because individual
22
notices will be mailed to all class members whose identities are known to the parties, and
23
such notice is the best notice practicable. The proposed Notice of Class Action
24
25
26
27
Settlement (Settlement, Exh. B), Claim Form (id., Exh. A), and Request for Exclusion
Form (id., Exh. C) (collectively, the "Class Notice Packet"), are sufficient to infonn Class
Members of the terms of the Settlement, their rights under the Settlement, their rights to
object to the Settlement, their rights to dispute their amount due under the Settlement, and
28
I
[Proposed] Order Granting Preliminary Approval of Class Action Settlement
r - - ·- - - \
\
.1
their rights to elect not to pa1ticipate in the Settlement; the processes for doing so; and the
2
date and location of the final approval hearing, and are therefore approved.
3
8.
Rust Consulting, Inc. ("Rust") is approved as Settlement Administrator.
4
9.
A Final Approval Hearing on the question of whether the proposed Settlement, attorneys'
5
fees and costs to Class Counsel, payment to the Labor & Workforce Development
6
Agency, and the Named Plaintiffs' enhancement awards should be finally approved as
fair, reasonable, and adequate as to the members of the Class is scheduled in Dept. 4 of
7
tills Court on _____________________ at _________________
8
I 0.
9
The Court approves, as to fonn and content, the Notice of Class Action Settlement , in
substantially the form attached to-the Settlement as Exhibit Band the Claim Form in
10
substantially the form attached to the Settlement as Exhibit A. The Court approves the
11
procedure for Settlement Class members to p;1rticipate in, to opt out of, and to object to,
12
the Settlement as set forth in the Class Notice.
13
I I.
The Court directs the mailing of the Class Notice Packet to all Settlement Class members
14
by First-Class U.S. Mail in accordance with the Implementation Schedule set forth
15
below. The Court finds the dates selected for the mailing and dis.tribution of the Class
16
Notice Packet, as set forth in the Implementation Schedule, meet the requirements of due
17
process and provide the best notice practicable under the circumstances and shall
18
constitute due and sufficient notice to ail persons entitled thereto.
19
12.
To facilitate administration of the Settlement pending fmal approval, the Court hereby
20
enjoins Plaintiffs and all Settlement Class members from filing or prosecuting any
21
claims, suits or administrative proceedings (including filing claims with the Division of
22
Labor Standards Enforcement of the Califomia Department of Industrial Relations)
23
regarding claims released by the Settlement unless and until such Settlement Class
members have filed valid written requests for exclusion with the Settlement
24
Administrator and the time for filing claims with the Settlement Administrator has
25
26
27
elapsed.
Ill
28
2
[Proposed] Order Granting Preliminary Approvai of Class Action Settlement
, - - - ----------
•
\''
;·
1
13.
2
The Court orders the.following Implementation Schedule for further proceedings:
a. Deadline for Del Monte to submit Settlement Class Member contact information
to Settlement Administrator:
3
4'
5
[21 days after preliminary approval]
6
b. Deadline for Settlement Administrator to mail the Class Notice Packet to
7
Settlement Class Members:
\/q/rr
8
9
[35 days
10
after~reli~nary approval]
c. Deadline for Settlement Administrator to mail Reminder Postcard to Settlement
11
Class Members who have not responded:
12
13
[45 days after mailing of Class Notice Packet]
14
· d. Deadline for Settlement Class Members to postmark Claim Forms (including
15
disputes regarding the number of workweeks or the dates of employment):
16
17
[60 days after mailing of Class Notice Packet]
18
e. Deadline for Settlement Class Members to postmark Requests for Exclusion:
19
20
21
[60 days after mailing of Class Notice Packet]
22
f.
23
Deadline for Settlement Class Members to postmark and file any Objectiosn to
the Settlement:
24
25
26
[60 days after mailing of Class Notice Packet]
Ill
27
28
3
[Proposed] Order Granting Preliminary Approval of Class Action Settlement
1
g. Deadline for Class Counsel to file Motion for Final Approval of Class Action
Settlement and for Award of Attorneys' Fees, Costs, and Class Representative
2
3
4
5
Enhancements:
·t¢~/f
.
. [28 days before the ina! Fairness and Approval Hearing]
6
h. Final Fairness and Approval Hearing:
7
6j;g-VI!j
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
[Proposed] Order Granting Preliminary Approval of Class Action Settlement
EXHIBIT B
EXHIBIT C
David D. Jacobson
Senior Counsel
Los Angeles - Century City
Direct: (310) 201-1508
Fax: (310) 201-5219
[email protected] vCard
Biography
Practices & Sectors
Labor &
Employment
Wage & Hour
Litigation
Employment Litigation
California Wage &
Hour Litigation
Mr. Jacobson is Senior Counsel in the Labor & Employment Department in the Los Angeles
(Century City) office of Seyfarth Shaw LLP. His practice primarily involves representation of
employers in defense of wage and hour class action lawsuits. He has experience representing
clients in a wide array of industries, including transportation, waste collection, retail, financial
services and manufacturing. Mr. Jacobson also has significant experience litigating complex
commercial disputes, and was counsel in several matters involving important California appellate
decisions regarding California gaming laws.
Education
J.D., University of Arkansas School of Law (1987)
B.A., Winona State University (1983)
Admissions
California
"Seyfarth Shaw" refers to Seyfarth Shaw LLP (an Illinois limited liability partnership). © 2015 Seyfarth Shaw LLP. All rights reserved. Prior results do not guarantee a
similar outcome.
Laura J. Maechtlen
Partner
San Francisco
Direct: (415) 544-1011
Fax: (415) 397-8549
[email protected] vCard
Biography
Practices & Sectors
Labor &
Employment
Complex
Discrimination
Litigation
Employment Litigation
Wage & Hour
Litigation
California Labor Code
Litigation
Labor & Employee
Relations
California Workplace
Solutions
Social Media
California Wage &
Hour Litigation
Laura J. Maechtlen is a partner in the San Francisco office of Seyfarth Shaw LLP and serves
as a Co­Chair of the Firm’s Diversity Action Team Executive Committee. Ms. Maechtlen’s
practice is focused on employment litigation and includes the defense of class, collective and
multi-plaintiff actions arising out of alleged violations of Title VII, California Labor Code, the Fair
Labor Standards Act and state statutes prohibiting discrimination and harassment in
employment. Ms. Maechtlen also has experience litigating against the Equal Employment
Opportunity Commission (EEOC), both at the early charge stage and in large-scale EEOC
pattern-and-practice litigation.
Ms. Maechtlen has California state court trial experience. She has been a member of multiple
trial teams that have secured defense verdicts in the California Superior Courts in the counties
of San Francisco, Alameda and Santa Clara. She also routinely handles arbitrations, often
securing favorable rulings from arbitrators.
In addition to her litigation practice, Ms. Maechtlen also provides day-to-day counseling and
advice to clients about the various laws affecting the employment relationship. She also regularly
reviews employer policies for compliance under state and federal law.
Ms. Maechtlen is a member of Seyfarth Shaw's Retail and Hospitality Industry Practice Groups.
She also handles litigation for, and provides counseling to clients, in a variety of other industries,
including logistics and transportation, airline transportation, construction, financial and
professional services, restaurant, temporary staffing and technology.
Ms. Maechtlen speaks and publishes regularly on a variety of employment law and litigation
topics, and issues regarding diversity and inclusion in the legal profession, and has been quoted
on those topics by CIO.com, Employment Law 360, the San Francisco Chronicle, Reuters,
CIO.com, The Recorder, The Daily Journal and the Insurance Journal. She has also served as
a contributing editor to multiple editions of The Fair Labor Standards Act (ABA) and The
Developing Labor Law (BNA).
Education
J.D., Boston University School of Law (2002)
Silvia Bieckne Robinson Award
B.A., University of Colorado, Boulder (1998)
Political Science and Music
cum laude
"Seyfarth Shaw" refers to Seyfarth Shaw LLP (an Illinois limited liability partnership). © 2015 Seyfarth Shaw LLP. All rights reserved. Prior results do not guarantee a
similar outcome.
Admissions
New Mexico
California
Courts
United States Supreme Court
U.S. Court Of Appeals for the Ninth Circuit
U.S. District Court for the Central District of California
U.S. District Court for the Eastern District of California
U.S. District Court for the Northern District of California
U.S. District Court for the Southern Districts of California
U.S. District Court for the District of New Mexico
Affiliations
California Minority Counsel Program, Board of Directors (2014-2015)
Lambda Legal Board of Directors (2013-2015)
National Lesbian Gay Law Foundation Board of Directors (2012-2014)
Fellow, Leadership Council on Legal Diversity (LCLD)(2011-2012)
National Lesbian Gay Law Association Board of Directors (Immediate Past President
2010-2011, President 2008-2010, Incoming President 2007-2008)
Bar Association of San Francisco (LGBT Equality Subcommittee) (2010-2014)
Bay Area Lawyers For Individual Freedoms (Board of Directors, 2010-2014, Annual
Dinner Committee 2009-2011)
San Francisco AIDS Legal Referral Panel, Board of Directors (2007-2010; Secretary,
Board of Directors 2008-2009)
National Conference of Bar Presidents Membership Committee (2009-2011)
National Conference of Bar Presidents, Diversity Committee (2008-2009)
San Francisco Bar Association Barrister’s Club Diversity Issues Committee (Co­Chair
2008)
American Bar Association (Labor and Employment Section, EEO Committee)
Hispanic National Bar Association
New Mexico Bar Association (Labor and Employment Section)
Representative Engagements
Ellis, et al. v. Costco Wholesale Corp., No. 04-CV-3341 (U.S. District Court/Northern
District of California) (author of brief discussing effect of Dukes v. Wal-Mart decision)
EEOC v. Altres, Inc. et al., No. 1:11cv00799 (D.Hawai'i, Dec. 30, 2011)( EEOC alleged
sex harassment on behalf of a class of females in the retail/restaurant environment)
EEOC v. Evans Fruit Co., Inc., No. 10-CV-3033 (E.D. Wash.) (full defense verdict
reached in high profile EEOC pattern or practice lawsuit on behalf of a class of females in
the fruit harvesting industry alleging sex harassment).
EEOC v. Global Horizons, Inc, et al., No. (U.S. District of Hawaii)( representation of three
defendants in one of the EEOC's highest profile lawsuits pending in federal court in Hawaii
involving allegations of human trafficking and abuse by personnel suppliers to coffee
"Seyfarth Shaw" refers to Seyfarth Shaw LLP (an Illinois limited liability partnership). © 2015 Seyfarth Shaw LLP. All rights reserved. Prior results do not guarantee a
similar outcome.
plantations in Hawaii)
EEOC v. Global Horizons, Inc. et al., No. 2:11-cv-03045-EFS (E.D.
Wash.)(representation of two defendants in another of the EEOC's highest profile lawsuits
pending in federal court in Washington involving allegations of human trafficking and
abuse by personnel suppliers to coffee plantations in Washington)
Halladay et al. adv. Clear Channel Broadcasting, Inc. (EEOC, 2009)(EEOC action
involving private plaintiff intervenor; class claims of sex harassment by female employees at
regional location)
Wynne, et al. v. McCormick & Schmick’s, No. 06-CV-3153 (U.S. District Court/Northern
District of California) (class action alleging race discrimination in the hiring, pay, and
promotion of African-American employees)
Countrywide Financial Corp. adv. R. Zamora, BC 351127 (Los Angeles Superior Court)
(challenging provisions of Account Executive comp plan as unlawful forfeitures of wages)
Countrywide Home Loans adv. Chin, RG 08404332 (Alameda Superior Court)
(misclassification of sales managers and branch loan originators, collateral Labor Code
claims)
McCormick & Schmick's Seafood Restaurant adv. Schaiy, No. 08 CV 4330 (C.D.
Cal.)(California and FLSA claims for off-the-clock work by non-exempt employees)
Party America adv. Lozoya, No. HG 06258395 (Cal. Super. Ct., Alameda County)(exempt
misclassification of store managers seeking overtime and meal period penalties)
Pitney Bowes, Inc. adv. Nettles, RG 08397421 (Alameda Superior Court) (off-the-clock
work, denial of meal periods, and denial of reimbursements to non-exempt service
technicians)
Protivity (Robert Half) adv. Tran, No. BC 351862 (Cal. Super. Ct., Los Angeles
County)(exempt misclassification of consultants and failure to reimburse business
expenses)
Republic Services, Inc. adv. Cordova, et al., Alameda County Superior Court No. RG
11593578 (putative class action on behalf of hourly employees at waste collection
company for failure to provide meal and rest periods and for failure to pay for off the clock
work)
Republic Services, Inc. adv. Medina, et al., U.S.D.C. No.: CV12-02596 PSG (N.D. Cal.)
(putative class action on behalf of hourly garbage truck drivers for failure to provide meal
and rest periods and failure to reimburse expenses)
Republic Services, Inc. adv. Perez, et al., Orange County Superior Court No.: 30-20120056005-CU-OE-CXC (putative class action on behalf of hourly garbage truck drivers for
failure to provide meal and rest periods and for failure to pay for off the clock work)
Republic Services, Inc. adv. Samano, et al., Orange County Superior Court No. 30-201000421264-CU-OE-CXC (putative class action on behalf of line workers at recycling facility
alleging missed meal and rest breaks, failure to pay overtime, failure to pay final wages
under Labor Code § 203, failure to provide itemized wage statements, and unfair business
practices)
Republic Waste Services of So. Cal. adv. Checkman, et al., San Diego County Superior
Court No. 37-2010-00086105 (putative class action on behalf of security guards and other
hourly employees alleging missed meal and rest breaks, failure to pay overtime, failure to
pay final wages, and unfair business practices)
Riddoch v. McCormick & Schmick's Seafood Restaurants, Inc. (Los Angeles Superior
Court, 2009) (California class action challenging Company's overtime pay practices)
Robert Half International adv. Green, No. CIV 476641 (Cal. Super. Ct., San Mateo
County filed Sept. 16, 2008)(temp candidates alleging that RHI failed to compensate them
for the time and expense of interviewing for temp jobs)
Safety-Kleen Systems, Inc. adv. Perez, No. 05 CV 5338 BZ (N.D. Cal.)(overtime and
meal periods for truck drivers carrying toxic substances)
Presentations
"Seyfarth Shaw" refers to Seyfarth Shaw LLP (an Illinois limited liability partnership). © 2015 Seyfarth Shaw LLP. All rights reserved. Prior results do not guarantee a
similar outcome.
"Bias and the Lavender Bar: LGBT Identities and Beyond," Continuing Education of the
Bar, California (August 14, 2014)
“BYOD: Bring Your Own Devices, Not Your Drama ­ How To Ensure BYOD Policies Work
For Your Business,” National Employment Law Council, 19th Annual Conference (April,
2014)
“From Charge Practice To Pattern Or Practice: Litigating With The EEOC,” National LGBT
Bar Association Annual Conference, San Francisco, CA (August 2013)
“Economic, Ethical and Legal Attributes of Working From Home,” Markkula Center For
Applied Ethics at Santa Clara University, Business and Organizational Ethics Partnership,
Santa Clara, California (August 2013)
“Legislative and Other Developments in LGBT Employment Rights,” American Bar
Association 2013 Annual Meeting, San Francisco, CA (August 2013)
“Preparing For Expanded Regulatory, Legislative and Enforcement Efforts With Regard To
Increasingly Prevalent EPL Claims,” 19th National Conference on Employment Practices
Liability Insurance (June 2013)
“Lesbian, Gay, Bisexual and Transgender Legal Rights,” Equal Employment Opportunity
Commission San Jose Seminar, San Jose, CA (June 2013)
“The Struggle of LGBT Equality in the South Asian Community: Marriage Equality and
Beyond,” National American South Asian Bar Association 10th Anniversary Convention
(June 2013)
“Reasonable Accommodation Under the Americans with Disabilities Amendments,”
National Conference On Equal Employment Opportunity Law by the American Bar
Association Equal Employment Opportunity Committee, Savannah, GA (April 2013)
“Women In Leadership Symposium: Women Leaders As Architects Of Change,” National
Diversity Council, San Francisco, CA (March 14, 2013)
“How to Prevent Workplace Conflict and Violence,” Minority Corporate Counsel
Association Annual CLE Expo, San Diego, CA (March 2013)
“Elimination of Bias In Negotiations,” Seyfarth Shaw CLE Expo, San Francisco, CA
(February 2013)
“Class Action Trends in California: Consumer and Employment Litigation,” Retail Law
Conference, Retail Industry Leaders Association, Dallas, TX (November 2012)
“Social Media And The Law,” General Counsel West Coast Conference, American Lawyer
Media, San Francisco, CA (October 31, 2012)
“Understanding the Peculiarities of California Labor and Employment Law,” HR Southwest
Conference 2012, Ft. Worth, TX (October 2012)
“The ABC’s of LGBT,” Texas Minority Corporate Counsel Association Annual Conference,
Houston, TX (October 2012)
“Doing Business In California? Employment Law For In And Out­Of­State Employers,”
Workplace Training Center/Media Briefings, Webinar (August 2012)
“Trends In Employment, Benefits & Labor Law,” National LGBT Bar Association Annual
Conference, Washington, D.C. (August 2012)
“Social Media & The Law,” Bar Association of San Francisco, San Francisco, CA (June
2012)
“Are Employment Class Actions Dead After Walmart & AT&T?,” Risk and Insurance
Management Society (RIMS) Annual Conference, Philadelphia, PA (April 2012)
“Complex Litigation: Preparing And Defending The High Stakes Case,” Hispanic National
Bar Association 3rd Annual Corporate Counsel Conference, Jersey City, New Jersey
(March 2012)
“Success Through Coaches, Mentors & Networks,” National Diversity Council, 3rd Annual
California Diversity & Leadership Conference, Berkeley, CA (February 2012)
“Understanding the Peculiarities of California Labor and Employment Law,” HR Southwest
Conference 2010, Ft. Worth, TX (October 2011)
"Seyfarth Shaw" refers to Seyfarth Shaw LLP (an Illinois limited liability partnership). © 2015 Seyfarth Shaw LLP. All rights reserved. Prior results do not guarantee a
similar outcome.
“Wrongdoing in the Workplace ­ Internal Investigations from Employment to White Collar,”
California Minority Counsel Program Annual Conference (October 2011)
“Update in Employment Law,” Los Angeles, CA (September 2011)
“Implications of Dukes v. Wal-Mart,” Retail Industry Leaders Association (July 2011)
“Transgender Employees in California: Best Practices for Eliminating Bias and Ensuring
Respect in the Workplace,” Business and Legal Reports, Webinar (April, 2011)
“2011 California Labor and Employment Law Update,” Center For Competitive
Management, Webinar (March, 2011)
“Social Media and the Law,” The Recorder Roundtable Series, San Francisco, CA
(January 2011)
“Explaining Why (and How) California Employment Laws Are So Different From Other
States,” Business and Legal Reports, Webinar (November, 2010)
“Understanding the Peculiarities of California Labor and Employment Law,” HR Southwest
Conference 2010, Ft. Worth, TX (October 2010)
“2010 California Labor and Employment Law Update,” Center For Competitive
Management, Webinar (September 2010)
"The Sea-Change: The Billable Hour, Alternative Fee Agreements and Diversity," Miami,
Florida (August 2010)
"Current Issues in Labor Law," Miami, Florida (August 2010)
"Weathering the Storm: What Every Law Firm Needs to Know About Employment Law in
2010," San Francisco, CA (March 2010)
“Elimination of LGBT Bias In the Legal Profession,” Sacramento, CA (January 2010)
“Explaining Why (And How) California’s Employment Laws Are So Different From Other
States,” San Francisco, CA (November 2009)
“Ethics Panel ­ LGBT Bias In The Legal Profession,” San Francisco, CA (November 2009)
“New Lawyers ‘Survival:’ A Panel Discussion on How to Navigate the Waters of Your First
Five Years of Labor and Employment Practice,” Berkeley, CA (November 2009)
“Coming Out in the Profession: ‘But, What Will the Clients Think?’” Brooklyn, NY
(September 2009)
“Workplace Protections and Employee Wish Lists,” Brooklyn, NY (September 2009)
“Complying With California’s Unique Employment Laws,” Center for Competitive
Management Webinar (September 2009)
“California Peculiarities,” New York, NY (June 2009)
“FMLA And Leave Of Absence Management,” San Francisco, CA (February 2009)
“Documenting Investigations and Poor Performance,” San Francisco, CA (September
2008)
“Beyond ENDA, Capitol Hill and the 110th Congress: Current Issues for Practitioners in
LGBT/HIV Employment Law,” San Francisco, CA (September 2008)
“Issues of Religion In The Workplace,” San Francisco, CA (June 2007)
“Navigating Employment Law Agencies,“ San Francisco, CA (March 2007)
“Preparing For the Next Wave Of Wage And Hour Litigation,“ San Francisco, CA (October
2006)
“Litigating Employment Discrimination and Sexual Harassment Cases,“ San Francisco, CA
(August 2006)
“Wage and Hour Update,” San Francisco, CA (October 2005)
“Domestic Partner Benefits and Issues: Changing Responsibilities for California
Employers, “ San Francisco, CA (October 2005) “Overview of Employer Responsibilities Under California's New Domestic Partnership
Laws,“ Sacramento, CA (April 2005)
"Seyfarth Shaw" refers to Seyfarth Shaw LLP (an Illinois limited liability partnership). © 2015 Seyfarth Shaw LLP. All rights reserved. Prior results do not guarantee a
similar outcome.
“Council on Education in Management Public Sector Employment Update 2005, Leaves of
Absence in the Public Sector,“ Sacramento, CA (March 2005)
“Leaves of Absence in the Public Sector, Council on Education in Management Public
Sector Employment Update 2005,“ Sacramento, CA (March 2005)
“Leaves of Absence Update, Construction Industry Seminar,” Sacramento, CA (March
2005)
“Whistleblower and Retaliation Claims: the Current Law,” Sacramento, CA (September
2004)
Publications
Co­Author, "SF 'Retail Workers’ Bill of Rights' Enacted — Likely Employer Impact,"
Management Alert, Seyfarth Shaw LLP (December 10, 2014)
Co-Author, "DOL Issues Final Rule on Government Contractor Sexual Orientation and
Gender Identity Non-Discrimination and Affirmative Action Requirements," One Minute
Memo, Seyfarth Shaw LLP (December 9, 2014)
Co-Author, "San Francisco Board of Supervisors Tentatively Passes 'Retail Workers Bill Of
Rights'," Retail Detail, Seyfarth Shaw LLP (November 21, 2014)
Co­Author, “U.S. v. Windsor: Present and Future Employment and Employee Benefit
Implications,” California Business Law Practitioner, Vol. 29, No. 3 (Regents of the
University Of California, Summer 2014)
Co-Author, "President Obama Expands LGBT Non-Discrimination Protections with
Executive Order," One Minute Memo, Seyfarth Shaw LLP (July 21, 2014)
Co-Author, "Facilitating Facilities in the Workplace: The DFEH Litigates a Gender Identity
Access Case," One Minute Memo, Seyfarth Shaw LLP (April 28, 2014)
"Employment Non-Discrimination Act Clears Initial Hurdle To Pave The Way For
Congressional Vote," One Minute Memo, Seyfarth Shaw LLP (November 5, 2013)
Co­Author, “U.S. Supreme Court Decides Landmark Same­Sex Marriage Decisions That
Will Significantly Impact U.S. Employers,” Management Alert, Seyfarth Shaw LLP (June
26, 2013)
Contributing Chapter Editor, The Developing Labor Law: The Board, the Courts, and the
National Labor Relations Act, 2013 Supplement (BNA, 6th Edition, 2012)
Co­Author, “The Supreme Court Grants Review In Two Cases With Direct Implications For
Employers,” One Minute Memo, Seyfarth Shaw LLP (December 12, 2012)
Co­Author, “EEOC Issues New Guidance Applying Title VII And ADA To Domestic
Violence, Sexual Assault And Stalking,” One Minute Memo, Seyfarth Shaw LLP(October
26, 2012)
Co­Author, “The EEOC Gets Knocked Out Of The Ring,” The Workplace Class Action
Blog (August 14, 2012)
Contributing author, Workplace Class Action Blog, available at:
www.workplaceclassaction.com
Contributing Chapter Editor, The Developing Labor Law: The Board, the Courts, and the
National Labor Relations Act (BNA, 6th Edition, 2012)
Chapter Author, “Chapter 8 ­ Discovery Issues in Collective and Class Actions,” Wage &
Hour Collective and Class Litigation, ALM Law Journal Press (2012). Definitive treatise on
wage and hour litigation.
Co­Author, “Wal-Mart v. Dukes: Clarification of Rule 23 Standards,” 18 Westlaw Journal
on Class Action, Issue 9, pp. 3-6 (October 2011)
Co­Author, “Wal-Mart v. Dukes: Clarification of Rule 23 Standards,” Westlaw Journal
Expert Commentary Series: Wal-Mart v. Dukes: Class Actions Under Scrutiny, pp. 3-6
(October 2011)
Co-Author, "Court Complicates Wage-And-Hour Law," The Recorder, 134rd Year No. 28
(August 2, 2011)
"Seyfarth Shaw" refers to Seyfarth Shaw LLP (an Illinois limited liability partnership). © 2015 Seyfarth Shaw LLP. All rights reserved. Prior results do not guarantee a
similar outcome.
Co-author, "Wal-Mart Stores v. Dukes: U.S. Supreme Court’s Clarification of Rule 23
Standards Means a Win for Employers Facing Class Actions,” 11 Expert Evidence
Report, No. 14, pp. 343-348 (July 18, 2011)
Co­author, “Roundtable on Diversity,” California Lawyer, pp. 37­40 (June, 2011) Co-author, "Wal-Mart Stores v. Dukes': U.S. Supreme Court's Clarification of Rule 23
Standards Means a Win for Employers Facing Class Actions," 12 BNA Class Action
Litigation Report, No. 13, pp. 614-619 (July 8, 2011)
“Caregiver and Family Responsibilities: A Continuing Challenge for Employers,” Employee
Relations Law Journal (Spring 2011)
“How Rolls­Royce Relates To Wal­Mart,”Law 360 (April 22, 2011)
Contributing Editor, The Developing Labor Law 2011 Supplement (BNA, 5th Edition,
2006)
Contributing Author, 2011 ABA FLSA Cumulative Supplement
Co­author, “Case Study: Dukes v. Wal-Mart,” Employment Law 360, Portfolio Media, Inc.
(December 13, 2010)
Co­author, “Employment Roundtable,” California Lawyer, pp. 39­43 (October 2010)
"Dukes v. Wal-Mart Clarifies Roles Of Experts During Class Certification Hearings,"
35BNA Employment Discrimination Report, pp. 256-64 (August 31, 2010)
Co­Author, “Proposition 8 Overturned in California ­ What Does This Mean For
Employers?,” ABA/TIPS Employment Law And Litigation Newsletter, pp. 3­5.
"Dukes v. Wal-Mart Part III - 'Roadmap' for Certification" 11 BNA Employment
Discrimination Report, pp. 485-490 (May 28, 2010)
Contributing Editor, The Developing Labor Law 2010 Supplement (BNA, 5th Edition,
2006)
Contributing Editor, The Fair Labor Standards Act 2010 Cumulative Supplement (American
Bar Association, 2010)
Contributing Editor, The Fair Labor Standards Act 2009 Cumulative Supplement (American
Bar Association, 2009)
Author, “Federal Non­Discrimination Provisions Are On The Horizon For U.S. Employees”,
The Bay Area Reporter, San Francisco, California (July 30, 2009)
Contributing Editor, The Developing Labor Law 2009 Supplement (BNA, 5th Edition,
2006)
Contributing Editor, The Fair Labor Standards Act 2008 Cumulative Supplement (American
Bar Association, 2008)
Author, “Covering Same­Sex Couples, in Sickness and in Health” The Daily Journal (May
23, 2008)
Contributing Editor, The Developing Labor Law 2008 Supplement (BNA, 5th Edition,
2006)
Co­Author, “Exempt Me Not,”The Recorder (September 14, 2007)
Contributing Editor, The Fair Labor Standards Act 2007 Cumulative Supplement (American
Bar Association, 2007)
Contributing Editor, The Developing Labor Law 2007 Supplement (BNA)(5th Edition, 2006)
Accolades
“Top 75 Employment Litigators,” Annual List of Top Leading Labor and Employment
Lawyers In California, Daily Journal (2014)
“Top 75 Women Litigators,” Annual List of Top 100 Leading Women Lawyers In California,
Daily Journal (2014)
“Rising Star,” Super Lawyers Magazine (2011, 2012, 2013, 2014)
"Seyfarth Shaw" refers to Seyfarth Shaw LLP (an Illinois limited liability partnership). © 2015 Seyfarth Shaw LLP. All rights reserved. Prior results do not guarantee a
similar outcome.
James C. Hormel Philanthropist Award, San Francisco AIDS Legal Referral Panel (2013)
“Best LGBT Lawyers Under 40,” National LGBT Bar Association (2011)
Seyfarth Shaw Pro Bono Partner Of The Year (2010)
"Seyfarth Shaw" refers to Seyfarth Shaw LLP (an Illinois limited liability partnership). © 2015 Seyfarth Shaw LLP. All rights reserved. Prior results do not guarantee a
similar outcome.
1
2
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF KINGS
(UNLIMITED JURISDICTION)
3
4
5
6
7
8
9
10
11
12
13
14
15
)
)
ROBERT MONTGOMERY, ARACELI
NEGRETE, and CAROL PHILIPS, on behalf of ))
themselves, all others similarly situated, and the )
general public,
)
)
)
Plaintiffs,
)
)
vs.
)
)
)
DEL MONTE CORPORATION, a Delaware
)
corporation; DEL MONTE FOODS, INC., a
)
Delaware corporation; and DOES 1-50,
)
inclusive,
)
)
Defendants.
)
)
Case No. 13 C 0204
DECLARATION OF STACY ROE
REGARDING SETTLEMENT
ADMINISTRATION
16
17
18
19
I, Stacy Roe, declare as follows:
1.
I am a Manager, Project Delivery for Rust Consulting, Inc. (“Rust”). My business
20
address is 625 Marquette Avenue, Suite 880, Minneapolis, Minnesota 55402-2469. My telephone
21
number is (612) 359-2812. I am over twenty-one years of age and am authorized to make this
22
declaration on behalf of Rust and myself.
23
2.
Rust has extensive experience in class action matters, having provided services in class
24
action settlements involving antitrust, securities fraud, property damage, employment discrimination,
25
employment wage and hour, product liability, insurance and consumer issues. We have provided
26
notification and/or claims administration services in more than 4,500 cases. Of these, more than 1,700
27
were Labor & Employment cases.
28
DECLARATION OF STACY ROE REGARDING SETTLEMENT ADMINISTRATION
3.
1
Rust was engaged by Counsel for the Plaintiffs and Counsel for the Defendants
2
(collectively the “Parties”) to provide notification services in the Robert Montgomery v. Del Monte
3
Corporation Settlement (the “Settlement”). Duties included: a) preparing, printing and mailing of the
4
Notice of Class Action Settlement (“Notice”), Claim Form (“Claim Form”), and Exclusion Request Form
5
(“Exclusion Request Form”) (collectively known as the “Notice Packet”); b) receiving and reviewing
6
Claim Forms submitted by Class Members; c) tracking of Exclusion Request Forms; d) printing and
7
mailing Settlement Share checks to Class Members; and e) for such other tasks as the Parties mutually
8
agreed or the Court ordered Rust to perform.
4.
9
Rust obtained a mailing address of Montgomery v Del Monte Settlement Administrator,
10
c/o Rust Consulting, Inc. - 4559, P.O. Box 2396, Faribault, Minnesota 55440-9096 to receive Claim
11
Forms, Exclusion Request Forms, Notice Packets returned as undeliverable and other communications
12
regarding the Settlement.
5.
13
14
regarding the Settlement.
15
16
17
Rust obtained a toll-free phone number for Class Members to call with questions
6.
Rust obtained a facsimile number for receiving Claim Forms and Exclusion Request
7.
Rust created a website for Class Members to view the Notice Packet, Settlement
Forms.
18
documents and general information about the proposed Settlement. The website address provided in the
19
Notice Packet was http://www.delmontecorporationsettlement.com.
20
21
22
8.
On or about December 8, 2014, Rust received text for the Notice Packet from Counsel.
A draft of the formatted Notice Packet was prepared by Rust and approved by the Parties.
9.
On or about December 22, 2014, Counsel for the Defendants provided Rust with a
23
mailing list containing the Class Member’s names, last known mailing addresses and telephone number,
24
Social Security number and dates of employment for each Class Member (the “Class List”). The
25
original Class List contained data for 7,491 potential Class Members.
26
10.
The mailing addresses contained in the Class List were processed and updated utilizing
27
the National Change of Address Database (“NCOA”) maintained by the U.S. Postal Service. The
28
NCOA contains requested changes of address filed with the U.S. Postal Service. In the event that any
DECLARATION OF STACY ROE REGARDING SETTLEMENT ADMINISTRATION
1
individual had filed a U.S. Postal Service change of address request, the address listed with the NCOA
2
would be utilized in connection with the mailing of the Notice Packet.
3
11.
On January 9, 2015, Notice Packets were mailed to 7,491 Class Members contained in
4
the Class List via First Class mail. The Notice Packet advised Class Members that they could submit a
5
Claim Form or Exclusion Request Form postmarked by March 10, 2015.
6
7
8
9
10
12.
On February 23, 2015, letters were mailed to 16 individuals that were inadvertently
included in the original Class List explaining that the Notice Packet was sent to them in error.
13.
On February 23, 2015, reminder postcards were mailed to 4,475 Class Members who had
not submitted a Claim Form or an Exclusion Request Form as of that date.
14.
On February 23, 2015, 398 Class Members, who were not included in the original Class
11
List, were added to the Class. Rust mailed each additional Class Member a Notice Packet with a
12
response deadline of April 24, 2015.
13
15.
On February 27, 2015, two (2) Class Members who were not included in the original
14
Class List were added to the Class. Rust mailed each of these two additional Class Members a Notice
15
Packet with a response deadline of April 28, 2015.
16
16.
On March 13, 2015, 16 Class Members who were not included in the original Class List
17
were added to the Class. Rust mailed each of these 16 additional Class Members a Notice Packet with a
18
response deadline of May 12, 2015.
19
17.
Rust mailed reminder postcards to the additional Class Members (identified in paragraphs
20
14-16) that did not submit a Claim Form or Exclusion Request Form approximately 45 days after their
21
Notice Packet was originally mailed.
22
18.
Rust performed 387 address skip-traces on Notice Packets returned as undeliverable.
23
Rust identified updated addresses for 318 Class Members and Notice packets were mailed to their
24
updated addresses. Of the 318 Notice packets remailed to an updated address, 52 were returned as
25
undeliverable a second time. As of this date, Rust was unable to identify a current address for 121 Class
26
Members.
27
19.
28
Rust is responsible for receipt of all Claim Forms for the Settlement. As of April 14th,
Rust has received 5,038 Claim Forms. Of the 5,038 Claim Forms received, 56 Class Members
DECLARATION OF STACY ROE REGARDING SETTLEMENT ADMINISTRATION
1
submitted Claim Forms that were not signed and were sent a letter and asked to sign their Claim Form.
2
Of the 56 Class Members who were sent letters, 44 Class Members re-submitted a signed Claim Form
3
and 12 Class Members did not re-submit a signed Claim Form. Per agreement of the Parties, the 12
4
Class Members who did not re-submit a signed Claim Form will be treated as having submitted valid
5
claims and will be issued checks under the Settlement.
6
20.
The 5,038 Claim Forms represents approximately 77% of the Net Settlement Amount.
7
The average Settlement Award is estimated to be $709. The highest Settlement Award is estimated to
8
be $1,152.
9
21.
As of this date, Rust has received 61 Exclusion Request Forms.
10
22.
As of this date, zero (0) objections were received by Rust.
11
23.
The Parties and Rust initially estimated that administrative fees and costs would not
12
exceed $42,000. This estimate subsequently increased to $50,000, with Counsel for Plaintiffs agreeing
13
to pay the additional $8,000 out of Plaintiff’s share of attorney’s fees. This estimate of $50,000 assumed
14
there would not be any additions to the Class List of 7,491 and assumed a filing rate no higher than 50%.
15
After the initial Notice Packets were mailed, Rust received additions to the Class List which added
16
significant technical consulting and project management time to compare the additional Class Members
17
with the original Class List. Additionally, Rust worked with Counsel for the Defendants to identify and
18
reconcile data anomalies regarding all of the Class Members to ensure the workweeks were properly
19
calculated. Rust is also required to send substitute W9 forms to approximately 180 Class Members
20
because their Social Security number did not match the Internal Revenue Service’s records. The
21
increased filing rate increases the administrative costs of processing additional Claim Forms, time and
22
costs of preparing and mailing of the Settlement Share checks and Settlement Share check reminder
23
postcard. Rust also incurred a significantly higher volume of calls from Class Members than was
24
anticipated.
25
24.
The total administrative fees and costs for this Settlement will far exceed the estimate of
26
$50,000. Rust estimates that the final bill for administrative fees and costs will be approximately
27
$97,000. Rust and the Parties have reached agreement regarding payment of the fees in excess of
28
$50,000 as follows: Per the Settlement agreement, Rust is required to calculate and withhold all taxes
DECLARATION OF STACY ROE REGARDING SETTLEMENT ADMINISTRATION
1
required on the Settlement Share checks . One of the taxes Rust is required to withhold is Federal
2
Unemployment Tax (“FUTA”). Rust currently estimates that approximately $70,000 will be withheld
3
to satisfy FUTA obligations. However, there is a question as to whether the entire $70,000 withheld for
4
FUTA will be required to be paid. This question will be answered when the IRS issues a ruling on this
5
issue, with a ruling anticipated later this year or early next year. Until the ruling, Rust is required to
6
withhold the FUTA. However, in the event that the IRS ultimately rules that the FUTA funds (or any
7
portion thereof) are not required to be paid, the parties and Rust have agreed that any portion of the
8
FUTA that is not required to be paid to the IRS will be applied to satisfy any amounts due to Rust over
9
and above $50,000, up to a maximum of $47,000. Any amounts not paid to FUTA over and above
10
$47,000 will be donated to Central California Legal Services (a non-profit providing free civil legal
11
services to low-income individuals, families and communities in San Joaquin Valley). In the event that
12
the total FUTA amount is required to be paid to the IRS, Rust agrees not to seek payment for any fees
13
and costs in this matter over and above $50,000. This agreement will not decrease the funds available
14
for distribution to Class Members, since the agreement requires payment of all taxes out of the
15
Settlement fund.
16
25.
I declare under penalty of perjury under the laws of the State of California and the United
17
States that the above is true and correct to the best of my knowledge and that this Declaration was
18
executed this 16th day of April 2015, at Minneapolis, MN.
19
20
__________________
STACY ROE
21
22
23
24
25
26
27
28
DECLARATION OF STACY ROE REGARDING SETTLEMENT ADMINISTRATION
1
2
3
4
5
6
7
8
Shaun Setareh (SBN 204514)
[email protected]
Tuvia Korobkin (SBN 268066)
[email protected]
Neil Larsen (SBN 276490)
[email protected]
SETAREH LAW GROUP
9454 Wilshire Boulevard, Ste. 907
Beverly Hills, California 90212
Telephone:
(310) 888-7771
Facsimile:
(310) 888-0109
Attorneys for Plaintiffs,
ROBERT MONTGOMERY, ARACELI NEGRETE, and CAROL PHILIPS
9
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
FOR THE COUNTY OF KINGS
(UNLIMITED JURISDICTION)
12
13
14
15
ROBERT MONTGOMERY, ARACELI
NEGRETE, and CAROL PHILIPS, on behalf
of themselves, all others similarly situated, and
the general public,
16
17
18
19
20
21
22
Plaintiffs,
Case No. 13 C 0204
DECLARATION OF ARACELI
NEGRETE IN SUPPORT OF MOTION
FOR FINAL APPROVAL OF CLASS
ACTION SETTLEMENT
vs.
DEL MONTE CORPORATION, a
Hearing Information
Delaware corporation; DEL MONTE FOODS, Date:
May 18, 2015
INC., a Delaware corporation; and DOES 1-50, Time:
9:00 a.m.
inclusive,
Department: 4
Judge:
Hon. James T. LaPorte
Defendants.
23
24
25
26
27
_______________________________________
28
Montgomery v. Del Monte Corporation,. et al.
Declaration of Araceli Negrete ISO Motion for
Final Approval of Class Action Settlement
DECLARATION OF ARACELI NEGRETE
1
I, ARACELI NEGRETE, declare as follows:
2
1.
3
4
Except as otherwise indicated, I have personal knowledge of all matters set forth
herein and, if called upon as a witness, could and would competently testify thereto.
2.
I am a named plaintiff and class representative in this action against Defendants
5
Big Heart Pet Brands (“BHPB”) (formerly known as Del Monte Corporation and the seller of
6
certain assets to Del Monte Foods, Inc.) and Del Monte Foods, Inc. (“DMFI”) (collectively
7
“Defendant” or “Del Monte”).
8
9
10
11
3.
I understand that, as a class representative, I have certain duties and
responsibilities to the class, and I believe that I have fairly represented the interests of all class
members in this case.
4.
I worked for Del Monte in an hourly position in the State of California from
approximately 1994 to 2012.
12
5.
13
14
When I spoke with my attorneys for purposes of obtaining representation, my
attorneys provided me with information regarding class actions, how they work, and what my
duties would be as the class representative. I agreed to serve as a class representative in this case
15
so that I could seek to recover unpaid wages and penalties on behalf of myself and other
16
employees like me.
17
6.
I have considered the interests of the Settlement Class just as I would consider
18
my own interests, have put the interests of the class before my own interests by retaining
19
experienced counsel and carefully considering the impact that the Settlement in this case would
20
have on them, and I understand that the Settlement in this case is subject to this Court’s
21
approval to ensure that it is in the best interest of the class as a whole.
7.
Since obtaining representation and becoming a class representative in this case, I
22
have spent significant time performing activities related to this case and pursuing the interests of
23
24
the Settlement Class. These activities took away time that I could have spent with friends or
family, or engaging in other personal pursuits. The activities I have performed include, but are
25
not limited to: retaining experienced counsel, providing my counsel with information about my
26
work history with Del Monte and Del Monte’s policies and practices, assisting my counsel in
27
connection with the mediation, being actively involved in the settlement process to ensure a fair
28
result for the Settlement Class as a whole, carefully reviewing the Settlement, and other case1
Montgomery v. Del Monte Corporation,. et al.
Declaration of Araceli Negrete ISO Motion for
Final Approval of Class Action Settlement
1
2
3
4
5
6
7
8
Shaun Setareh (SBN 204514)
[email protected]
Tuvia Korobkin (SBN 268066)
[email protected]
Neil Larsen (SBN 276490)
[email protected]
SETAREH LAW GROUP
9454 Wilshire Boulevard, Ste. 907
Beverly Hills, California 90212
Telephone:
(310) 888-7771
Facsimile:
(310) 888-0109
Attorneys for Plaintiffs,
ROBERT MONTGOMERY, ARACELI NEGRETE, and CAROL PHILIPS
9
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
FOR THE COUNTY OF KINGS
(UNLIMITED JURISDICTION)
12
13
14
15
ROBERT MONTGOMERY, ARACELI
NEGRETE, and CAROL PHILIPS, on behalf
of themselves, all others similarly situated, and
the general public,
16
17
18
19
20
21
22
Plaintiffs,
Case No. 13 C 0204
DECLARATION OF CAROL PHILIPS IN
SUPPORT OF MOTION FOR FINAL
APPROVAL OF CLASS ACTION
SETTLEMENT
vs.
DEL MONTE CORPORATION, a
Hearing Information
Delaware corporation; DEL MONTE FOODS, Date:
May 18, 2015
INC., a Delaware corporation; and DOES 1-50, Time:
9:00 a.m.
inclusive,
Department: 4
Judge:
Hon. James T. LaPorte
Defendants.
23
24
25
26
27
_______________________________________
28
Montgomery v. Del Monte Corporation,. et al.
Declaration of Carol Philips ISO Motion for
Final Approval of Class Action Settlement
DECLARATION OF CAROL PHILIPS
1
I, CAROL PHILIPS, declare as follows:
2
1.
3
4
Except as otherwise indicated, I have personal knowledge of all matters set forth
herein and, if called upon as a witness, could and would competently testify thereto.
2.
I am a named plaintiff and class representative in this action against Defendants
5
Big Heart Pet Brands (“BHPB”) (formerly known as Del Monte Corporation and the seller of
6
certain assets to Del Monte Foods, Inc.) and Del Monte Foods, Inc. (“DMFI”) (collectively
7
“Defendant” or “Del Monte”).
8
9
10
11
3.
I understand that, as a class representative, I have certain duties and
responsibilities to the class, and I believe that I have fairly represented the interests of all class
members in this case.
4.
I worked for Del Monte in an hourly position in the State of California for
approximately 47 years until 2012.
12
5.
13
14
When I spoke with my attorneys for purposes of obtaining representation, my
attorneys provided me with information regarding class actions, how they work, and what my
duties would be as the class representative. I agreed to serve as a class representative in this case
15
so that I could seek to recover unpaid wages and penalties on behalf of myself and other
16
employees like me.
17
6.
I have considered the interests of the Settlement Class just as I would consider
18
my own interests, have put the interests of the class before my own interests by retaining
19
experienced counsel and carefully considering the impact that the Settlement in this case would
20
have on them, and I understand that the Settlement in this case is subject to this Court’s
21
approval to ensure that it is in the best interest of the class as a whole.
7.
Since obtaining representation and becoming a class representative in this case, I
22
have spent significant time performing activities related to this case and pursuing the interests of
23
24
the Settlement Class. These activities took away time that I could have spent with friends or
family, or engaging in other personal pursuits. The activities I have performed include, but are
25
not limited to: retaining experienced counsel, providing my counsel with information about my
26
work history with Del Monte and Del Monte’s policies and practices, assisting my counsel in
27
connection with the mediation, being actively involved in the settlement process to ensure a fair
28
result for the Settlement Class as a whole, carefully reviewing the Settlement, and other case1
Montgomery v. Del Monte Corporation,. et al.
Declaration of Carol Philips ISO Motion for
Final Approval of Class Action Settlement
1
2
3
4
5
6
7
8
Shaun Setareh (SBN 204514)
[email protected]
Tuvia Korobkin (SBN 268066)
[email protected]
Neil Larsen (SBN 276490)
[email protected]
SETAREH LAW GROUP
9454 Wilshire Boulevard, Suite 907
Beverly Hills, California 90212
Telephone:
(310) 888-7771
Facsimile:
(310) 888-0109
Attorneys for Plaintiffs,
ROBERT MONTGOMERY, ARACELI NEGRETE, and CAROL PHILIPS
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF KINGS
(UNLIMITED JURISIDCTION)
11
12
13
14
ROBERT MONTGOMERY, ARACELI
NEGRETE, and CAROL PHILIPS, on behalf
of themselves, all others similarly situated, and
the general public,
15
Plaintiffs,
Case No. 13 C 0204
[PROPOSED] ORDER GRANTING
FINAL APPROVAL OF CLASS ACTION
SETTLEMENT AND ENTRY OF
JUDGMENT
16
17
18
19
20
vs.
DEL MONTE CORPORATION, a Delaware
corporation; DEL MONTE FOODS, INC., a
Delaware corporation; and DOES 1–50,
inclusive,
Hearing Information
Date:
May 18, 2015
Time:
9:00 a.m.
Location:
Department 4
Judge:
Hon. James T. LaPorte
21
Defendants.
22
23
24
25
26
27
28
1Montgomery v. Del Monte Corporation. et al.
[Proposed] Order Granting Final Approval of Class Action
Settlement and Entry of Judgment
ORDER AND JUDGMENT
1
2
3
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
The Plaintiffs’ Motion for Final Approval of Class Action Settlement came before this
4
Court, the Honorable James T. LaPorte presiding, on May 18, 2015. The Court, having
5
considered the papers submitted in support of the Motion, HEREBY ORDERS THE
6
FOLLOWING:
7
1. All terms used herein shall have the same meaning as defined in the Settlement
8
Agreement preliminarily approved by this Court on December 4, 2014 (the
9
“Settlement”).
10
11
12
2. Consistent with the definitions provided in the Settlement, the term “Settlement Class”
and “Class Members” shall be defined as follows:
“All persons employed in California by Del Monte as non-exempt employees during the
Class Period [from April 19, 2009, through December 4, 2014].”
13
The Settlement Class includes a “Settlement Subclass,” which shall be defined as
14
follows:
15
16
17
18
19
20
21
22
“All Class Members who were employed at any time by Del Monte on or after April 19,
2010 and were no longer employed by Del Monte as of the date of Preliminary Approval
[December 4, 2014].”
3. This Court has jurisdiction over the subject matter of this Action and over all parties to
this Action, including all Class Members.
4. The Court finds that the Settlement Class is properly certified as a Class for settlement
purposes only.
5. The Class Notice, Claim Form, and Exclusion Request form provided to the Settlement
23
Class conform with the requirements of Code of Civil Procedure section 382, Civil Code
24
section 1781, California Rules of Court 3.766 and 3.769, the California and United
25
States Constitutions, and any other applicable law, and constitute the best notice
26
practicable under the circumstances, by providing individual notice to all Settlement
27
Class Members who could be identified through reasonable effort, and by providing due
28
and adequate notice of the proceedings and of the matters set forth therein to Class
1
Montgomery v. Del Monte Corporation. et al.
[Proposed] Order Granting Final Approval of Class Action
Settlement and Entry of Judgment
1
Members. The Class Notice, Claim Form, and Exclusion Request form fully satisfy the
2
requirements of due process.
3
6. The Court finds the Settlement was entered into in good faith, that the Settlement is fair,
4
reasonable, and adequate, and that the Settlement satisfies the standards and applicable
5
requirements for final approval of this class action settlement under California law,
6
including the provisions of Code of Civil Procedure section 382 and Rules of Court,
7
Rule 3.769. The Court approves the distribution of the Net Settlement Amount (“NSA”)
8
as follows:
9

and timely Claim Forms; and
10
11
12
95% of the NSA shall be payable to Class Members who have submitted valid

5% of the NSA shall be payable to the members of the Settlement Subclass who
have submitted valid and timely Claim Forms.
13
The Settlement Share paid to each Participating Class Member who has submitted a
14
valid and timely Claim Form will be based on (a) his or her total number of Work Weeks during
15
16
the Class Period (b) divided by the aggregate number of Work Weeks of all Class Members
during the Class Period (with the division rounded to four decimal places) (c) multiplied by
17
ninety-five percent (95%) of the value of the value of the NSA.
18
The Settlement Subclass Share paid to each Subclass member who has submitted a valid
19
and timely Claim Form will be based on (a) his or her total number of Work Weeks during the
20
Class Period (b) divided by the aggregate number of Work Weeks of all Subclass Members
21
22
23
24
during the Class Period (with the division rounded to four decimal places) (c) multiplied by five
percent (5%) of the value of the value of the NSA.
7. The Court approves the Setareh Law Group’s (“Class Counsel”) application for Class
25
Counsel Fees and orders that fees in the amount of $2,500,000 (1/3 of the Gross
26
Settlement Amount), and the reimbursement of litigation costs in the amount of
27
$13,711.56, be paid to Class Counsel pursuant to the terms of the Settlement.
28
2
Montgomery v. Del Monte Corporation. et al.
[Proposed] Order Granting Final Approval of Class Action
Settlement and Entry of Judgment
1
8. In addition to any Settlement Share that Plaintiffs Araceli Negrete and Carol Philips may
2
receive under the Settlement as Class Members and/or Subclass Members, and in
3
recognition of their efforts on behalf of the Class, the Court hereby approves and orders
4
the payment of a service fee in the amount of $5,000 each to Plaintiffs Negrete and
5
Philips.
6
9. The Court approves and orders payment of $42,000 from the Gross Settlement Amount to
7
Rust Consulting, Inc. for performance of its duties as Settlement Administrator. The
8
Court further approves the parties’ agreement to pay $8,000 to Rust Consulting, Inc. from
9
Class Counsel’s Fees and to pay Rust Consulting, Inc. up to $47,000 from any Federal
10
11
12
13
Unemployment Tax (“FUTA”) withholdings not payable to the Internal Revenue Service,
as explained in more detail in paragraph 24 of the Declaration of Stacy Roe filed
concurrently with the Motion for Final Approval of Class Action Settlement. To the
extent there is any FUTA credit beyond $47,000, such funds shall be donated to cy pres
14
recipient Central Legal Services of California.
15
10. No Class Members have objected to the Settlement or to any of its terms.
16
11. Sixty-one (61) Class Members have submitted valid and timely Exclusion Request
17
forms. Consequently, all Class Members, except for the 61 Class Members who
18
submitted valid and timely Exclusion Request forms, are bound by the Settlement and
19
by this Order Granting Final Approval of Class Action Settlement and Judgment.
20
12. Upon entry of this Order, compensation to Participating Class Members who have
21
22
23
24
25
26
27
28
submitted valid and timely Claim Forms shall be effected pursuant to the terms of the
Settlement.
13. Upon entry of this Order, Plaintiffs and all Class Members and Subclass Members shall
have, by operation of this Final Approval Order and Judgment, fully, finally and forever
released, relinquished, and discharged Defendants and the Releasees from all the Class
Released Claims as defined by the terms of paragraph III.G.2. of the Settlement.
14. Paragraph III.G.2. of the Settlement reads: “Release by all Class and Subclass
Members. As of the date of preliminary approval, all Class and Subclass Members who
3
Montgomery v. Del Monte Corporation. et al.
[Proposed] Order Granting Final Approval of Class Action
Settlement and Entry of Judgment
1
do not execute and timely return a valid Exclusion Request do hereby, for themselves and
2
for their heirs, representatives, attorneys, executors, administrators, successors, and
3
assigns – release, acquit, and forever discharge BHPB and DMFI, and their past present
4
and future owners, affiliates, partnerships, related companies, subsidiaries, divisions, and
5
parents, and their members, managers, investors, shareholders, officers, directors,
6
partners, servants, agents, employees, representatives, attorneys, and insurers, and all
7
persons acting under, by, through, or in concert with any of them, and each of them
8
(“Releasees”), from any and all actions, causes of action, grievances, obligations, costs,
9
expenses, damages, losses, claims, liabilities, suits, debts, demands, and benefits
10
(including attorneys’ fees and costs actually incurred), of whatever character, in law or in
11
equity, known or unknown, suspected or unsuspected, matured or unmatured, of any kind
12
or nature whatsoever, arising out of or related to the claims pled in the Action or that
13
could have been pled based upon the facts asserted in the Action, from the beginning of
14
time up to and through the date of preliminary approval of this Settlement Agreement,
15
including, without limitation: claims for the nonpayment of or failure to pay wages;
16
claims arising from the violation of meal and rest break laws; claims for failure to pay
17
minimum wages, failure to pay overtime, failure to pay missed meal and rest break
18
premium pay; claims and penalties under the California Labor Code (including, without
19
limitation, penalties under Labor Code Sections 203, 226, 226.7, 558, and 2698 et seq.
20
and under any Industrial Welfare Commission Wage Order; claims arising under the
21
California Labor Code or Business & Professions Code (including Section 17200);
22
claims for restitution and other equitable relief, liquidated damages, punitive damages,
23
waiting time penalties, and any other penalties of any nature whatsoever (collectively the
24
“Class Released Claims”). The Class Released Claims includes a waiver of California
25
Civil Code section 1542 with respect to all claims that were pled in the Action and all
26
claims that could have been pled based upon the facts alleged in the Action. Section 1542
27
provides as follows:
28
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR
4
Montgomery v. Del Monte Corporation. et al.
[Proposed] Order Granting Final Approval of Class Action
Settlement and Entry of Judgment
2
HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED
HIS OR HER SETTLEMENT WITH THE DEBTOR.
3
The Parties’ intent in entering into this Settlement is to release BHPB and DMFI from
4
any and all claims that arise from or relate to the claims alleged in the Action, and
5
preclude BHPB and DMFI from owing any further monies (beyond the payments set
6
forth in this Agreement) to Class Members and Subclass Members based upon the claims
7
made or that could have been made based upon the allegations contained in the Action.
8
This release excludes the release of any claims not permitted to be released by law.”
9
15. Upon entry of this Order, Plaintiffs Negrete and Philips, in addition to the release
10
outlined above, shall have fully, finally and forever released, relinquished, and
11
discharged Defendants and the Releasees from all claims and causes of action identified
12
in paragraph III.G.1. of the Settlement.
1
13
14
15
16
17
18
19
20
21
22
23
24
16. Upon the Effective Final Settlement Date (as defined in the Settlement), all Class
Members shall be and are hereby permanently barred and enjoined from the institution
or prosecution of any and all of the Released Claims.
17. This Judgment is intended to be a final disposition of this Action in its entirety, and is
intended to be immediately appealable.
18. This Court shall retain jurisdiction with respect to all matters related to the administration
and consummation of the Settlement, and any and all claims, asserted in, arising out of,
or related to the subject matter of this Action, including but not limited to all matters
related to the Settlement and the determination of all controversies relating thereto.
19. Upon the completion of all distributions in accordance with the terms of the Judgment,
Class Counsel shall prepare, file and serve on Del Monte’s counsel an
Acknowledgement of Satisfaction of the Judgment in full.
IT IS SO ORDERED.
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Dated: _________________
BY: _________________________
Hon. James T. LaPorte
Kings County Superior Court Judge
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5
Montgomery v. Del Monte Corporation. et al.
[Proposed] Order Granting Final Approval of Class Action
Settlement and Entry of Judgment