case4:08-cv-02993-jsw document382 filed04/23/14 page2 of 22 · case no. 3:08-cv-02993 jsw...

P’S MOTION AND MPA IN SUPPORT OF PRELIMINARY APPROVAL OF CLASS AND COLLECTIVE ACTION

SETTLEMENT

CASE NO. 3:08-CV-02993 JSW

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Philip Monrad, SBN 151073 Aaron Kaufmann, SBN 148580 David Pogrel, SBN 203787 LEONARD CARDER, LLP 1330 Broadway, Suite 1450 Oakland, CA 94612 Telephone: (510) 272-0169 Facsimile: (510) 272-0174 E-mail: [email protected] E-mail: [email protected] E-mail: [email protected] Daniel Feinberg, SBN 135983 Kirsten Scott, SBN 253464 LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 476 9th Street Oakland, California 94607 Telephone: (510) 839-6824 Facsimile: (510) 839-7839 E-mail: [email protected] E-mail: [email protected]

Peter Rukin, Esq., SBN 178336 Rosha Jones, Esq. SBN 279143 RUKIN HYLAND DORIA & TINDALL LLP 100 Pine Street, Suite 2150 San Francisco, CA 94111 Telephone: (415) 421-1800 Facsimile: (415) 421-1700 E-mail: [email protected] E-mail: [email protected] Bryan Schwartz, SBN: 209903

Rachel Terp, SBN: 290666

BRYAN SCHWARTZ LAW

1330 Broadway, Suite 1630

Oakland, CA 94612

Telephone: (510) 444-9300

Facsimile: (510) 444-9301

Emails: [email protected]

[email protected]

Attorneys for PLAINTIFFS and the Proposed Class

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

ROOSEVELT KAIRY, LARRY BROWN,

WAYNE DICKSON, DRAKE OSMUN,

HARJINDER SINGHDIETZ, on behalf of

themselves, all others similarly situated,

Plaintiffs,

v.

SUPERSHUTTLE INTERNATIONAL,

INC. and SUPERSHUTTLE FRANCHISE

CORPORATION, d.b.a.

SUPERSHUTTLE, and DOES 1 through

20, inclusive,

Defendants.

Case No. 3:08-CV-02993 JSW

PLAINTIFFS’ MOTION FOR AND

MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF

MOTION FOR PRELIMINARY

APPROVAL OF CLASS AND

COLLECTIVE ACTION SETTLEMENT

Hrg Date: June 13, 2014 Time: 9:00 am Ctrm: 5 Before: Hon. Jeffrey S. White

Case4:08-cv-02993-JSW Document382 Filed04/23/14 Page1 of 22

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MPA IN SUPPORT OF PS’ MOTION FOR PRELIMINARY APPROVAL OF CLASS AND COLLECTIVE

ACTION SETTLEMENT


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NOTICE OF MOTION AND MOTION

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

Please take Notice that on June 13, 2014, at 9:00 a.m. or as soon thereafter as the matter

can be heard in Courtroom 5 of the United States District Courthouse located at 1301 Clay

Street, Oakland, CA, before the Honorable Jeffrey S. White, Plaintiffs Roosevelt Kairy,

Harjinder Singhdietz (aka Harjinder Dubb), Drake Osmun, Wayne Dickson and Larry Brown,

and proposed Plaintiffs Munir Ahmed, Frederick Fernandez and Yurik Zadov (“Plaintiffs”) will

and hereby do move this Court for an Order Granting Preliminary Approval of Class and

Collective Action Settlement. Plaintiffs’ Motion is based on this Notice and the accompanying

Memorandum of Points and Authorities and exhibits thereto; the Declarations of Aaron

Kaufmann, Peter Rukin, Daniel Feinberg, and Bryan Schwartz and the respective exhibits

thereto, the Proposed Order, this Court’s files and records, and any other evidence, briefing, or

argument properly before this Court.

Plaintiffs respectfully request that the Court: (1) grant preliminary approval of the

proposed Settlement; (2) conditionally certify for settlement purposes the Settlement Class; (3)

approve the form, content and method of distribution of the Notice and Claim Form; (4) appoint

Leonard Carder, LLP, Rukin Hyland Doria & Tindall LLP, Lewis, Feinberg, Lee, Renaker &

Jackson, P.C., and Bryan Schwartz Law as Settlement Class Counsel; (5) appoint Roosevelt

Kairy, Harjinder Singhdietz (aka Harjinder Dubb), Drake Osmun, Wayne Dickson, Larry Brown,

Munir Ahmed, Frederick Fernandez and Yurik Zadov as class representatives; (6) appoint KCC

as Settlement Administrator; and (7) schedule a hearing regarding final approval of the proposed

Settlement, and Class Counsel’s request for attorney’s fees and costs and awards of Service

Awards to the Representative Plaintiffs.

//

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Dated: April 23, 2014 Respectfully Submitted,

By: /s/ Daniel Feinberg . Daniel Feinberg Daniel Feinberg Kirsten Scott LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 476 9th Street Oakland, CA 94607 Telephone: (510) 839-6824 Facsimile: (510) 839-7839 Philip Monrad, SBN 151073 Aaron Kaufmann, SBN 148580 David Pogrel, SBN 203787 LEONARD CARDER, LLP 1330 Broadway, Suite 1450 Oakland, CA 94612 Telephone: (510) 272-0169 Facsimile: (510) 272-0174 Peter Rukin, Esq., SBN 178336 Rosha Jones, Esq. SBN 279143 RUKIN HYLAND DORIA & TINDALL LLP 100 Pine Street, Suite 2150 San Francisco, CA 94111 Telephone: (415) 421-1800 Facsimile: (415) 421-1700 Bryan Schwartz, SBN: 209903


BRYAN SCHWARTZ LAW


Oakland, CA 94612

Telephone: (510) 444-9300

Facsimile: (510) 444-9301

Attorneys for Plaintiffs


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TABLE OF CONTENTS

I. Introduction ......................................................................................................................... 1

II. Factual Background and the Parties’ Contentions .............................................................. 3

III. Procedural Background ....................................................................................................... 4

IV. Terms of the Proposed Settlement ...................................................................................... 5

V. Argument ............................................................................................................................ 5

A. Preliminary Approval of the Settlement is Appropriate ......................................... 5

1. Settlement is the Product of Informed, Non-Collusive Negotiation ........... 6

2. The Settlement Falls Within the Range of Possible Approval ................... 6

i. The Strength of Plaintiffs’ Case and the Risk of Further Litigation Support Preliminary Approval ....................................... 6

ii. The Settlement Consideration and Allocation Are Fair .................. 9

3. Attorneys’ Fees and Costs that Plaintiffs Will Request Are Reasonable ................................................................................................ 10

4. The Proposed Service Awards Are Reasonable........................................ 10

B. Provisional Certification of the Class Is Appropriate ........................................... 11

1. Standards Governing Approval of Settlement Classes ............................. 11

2. The Settlement Classes Satisfy the Requirements of Rule 23(a) .............. 12

3. The Settlement Class Meets the Requirements of Rule 23(b)(3) ............. 13

C. The Proposed Notice is Adequate ......................................................................... 14

D. The Court Should Set a Final Approval Hearing .................................................. 15

VI. Conclusion ........................................................................................................................ 15


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TABLE OF AUTHORITIES

STATE CASES

Christler v. Express Messenger Systems, Inc.,

171 Cal. App. 4th

72 (2009) ...................................................................................................... 7

Estrada v. FedEx Ground Package System, Inc.,

154 Cal. App. 4th

1 (2007) ........................................................................................................ 8

Gattuso v. Harte-Hanks Shoppers, Inc.,

42 Cal. 4th

554 (2007) ............................................................................................................... 8

Rabanal v. Rideshare Port Management, LLC et. al.,

2013 WL 6020340 (Cal. App. 2013) ........................................................................................ 7

FEDERAL CASES

Abel v. Southern Shuttle Services Inc.,

631 F. 3d 1210 (2011) ............................................................................................................... 8

Bautista v. Harvest Management Sub,

No. 2:12-cv-10004 (C.D. Cal. Oct. 16, 2013)........................................................................... 9

Ching v. Siemens Industry, Inc.,

No. C 11-4838 MEJ (N.D. Cal. Nov. 26, 2013) ..................................................................... 10

Churchill Vill., L.L.C. v. Gen. Elec.,

361 F.3d 566 (9th Cir. 2004) .................................................................................................. 14

Custom Led, LLC v. eBay, Inc.,

12-CV-00350-JST, 2013 WL 4552789 (N.D. Cal. Aug. 27, 2013) ........................................ 14

EEOC v. Kovacevich “5” Farms,

No. CV-F-06-165 OWW/TAG, 2007 WL 1174444 (E.D. Cal. Apr. 19, 2007) ..................... 12

Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) .............................................................................. 11, 12, 13, 14

Harris v. Vector Mktg. Corp.,

C-08-5198 EMC, 2011 WL 1627973 (N.D. Cal. Apr. 29, 2011) ............................................. 5

Kairy v. SuperShuttle Int’l.,

660 F.3d 1146 (9th Cir. 2011) .................................................................................................. 4

Knight v. Red Door Salons, Inc.,

No. 08-01520 CD (N.D. Cal. Feb. 2, 2009) ............................................................................ 10

Mazza v. Am. Honda Motor Co., Inc.,

666 F.3d 581 (9th Cir. 2012) .................................................................................................. 12

In re Mercury Interactive Securities Litigation,

618 F.3d 988 (9th

Cir. 2010) ................................................................................................... 10

Narayan v. EGL, Inc., et. al.,

285 F.R.D. 473 (2012) .............................................................................................................. 8


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Officers for Justice v. Civil Serv. Comm'n of City & Cnty. of San Francisco,

688 F.2d 615 (9th Cir. 1982) ................................................................................................ 5, 6

Ohayon v. Hertz Corp.,

No. 5:11-cv-01662 EJD (N.D. Cal. Oct. 16, 2012) ................................................................ 15

Rodriguez v. W. Publ’g Corp.,

563 F.3d 948 (9th Cir. 2009) .................................................................................................. 10

Scott v. Bimbo Bakeries USA,

No. 2:10cv03154 (E.D. Pa. March 5, 2014) ............................................................................. 9

Spencer v. BeavEx, Inc.,

2006 WL 6500597 (S.D. Cal. 2006) ......................................................................................... 8

In re Tableware Antitrust Litig.,

484 F.Supp.2d 1078 (N.D. Cal. 2007) .................................................................................. 5, 6

Tijero v. Aaron Brothers, Inc.,

No. C 10-01089-SBA, 2013 WL 6700102 (N.D. Cal. Dec. 19, 2013) ..................................... 9

Torrisi v. Tucson Elec. Power Co.,

8 F.3d 1370 (9th Cir. 1993) ...................................................................................................... 5

Van Vranken v. Atlantic Richfield Co.,

901 F.Supp. 294 (N.D. Cal. 1995) .......................................................................................... 11

Villegas v. J.P. Morgan Chase & Co.,

CV 09-00261 SBA EMC, 2012 WL 5878390 (N.D. Cal. Nov. 21, 2012) ..................... 6, 9, 15

Wren v. RGIS Inventory Specialists,

256 F.R.D. 180 (N.D. Cal. 2009) .............................................................................................. 8

FEDERAL RULES

Fed. R. Civ. P. 23(a) ............................................................................................................... 12, 13

Fed. R. Civ. P. 23(b) ................................................................................................... 11, 12, 13, 14

Fed. R. Civ. P. 23(c) ..................................................................................................................... 14

Fed. R. Civ. P. 23(e) ............................................................................................................... 14, 15

Fed. R. Civ. P. 23(g) ............................................................................................................... 12, 13

OTHER AUTHORITIES

Manual for Complex Litigation, Fourth §§ 21.632-33 ................................................................. 11

SuperShuttle International, Inc., v. Employment Development Department,

CUIAB Precedent Tax Decision No. P-T-502 .......................................................................... 7

SuperShuttle Los Angeles, Inc.,

NLRB Case. No. 31-CA-092489 (2013) .................................................................................. 7

Wage Order 9-2004, §3(L)(1) ......................................................................................................... 8


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I. Introduction

Plaintiffs Roosevelt Kairy, Harjinder Singhdietz (aka Harjinder Dubb), Drake Osmun,

Wayne Dickson and Larry Brown, and proposed Plaintiffs Munir Ahmed, Frederick Fernandez

and Yurik Zadov, seek preliminary approval of a settlement on behalf of themselves and a

Settlement Class comprised of all current and former operators of SuperShuttle-branded vans1

within the state of California during the Settlement Period,2 to resolve state and federal wage and

hour claims against Defendants3 (collectively “Drivers” or “Class Members”). The settlement

includes a cash component of $12,000,000 (the “Class Fund”) and an agreement for Defendants

to make certain material changes to the SuperShuttle Franchise program for the benefit of current

Drivers (“Programmatic Changes”). Plaintiffs have alleged that they and other proposed Class

Members were misclassified as franchisees and/or independent contractors while working as de

facto employees, and they have sought minimum wage and overtime, compensation for missed

meal period, reimbursement for expenses and allegedly coerced purchases, interest thereon,

penalties, liquidated damages, and injunctive and other equitable relief, as well as reasonable

attorneys’ fees and costs. The proposed settlement class includes two subclasses: (1) The

“Primary Operators Sub-Class,” which consists of all individuals who signed a franchisee or

owner-operator agreement with any Defendant and provided service during the Settlement

Period; and (2) “Secondary Operators Sub-Class” who provided services through an arrangement

made with one or more Primary Operators.

The main terms of the settlement are as follows:4

Defendants will pay $12,000,000 (“Gross Settlement Fund”), inclusive of payments to

the class, attorneys’ fees, litigation costs, service awards to class representatives, and

payments to the state for Private Attorneys’ General Act penalties, to resolve all disputes;

1 The term “SuperShuttle van” does not include Arcadia Transit (Burbank area) vans. The operators of vans

affiliated with that entity are excluded from the settlement class and this settlement. 2 The Class Period or Settlement Period is May 8, 2004 through the date of the Court’s preliminary approval of this

proposed settlement. 3 “Defendants” refers to SuperShuttle International, Inc. (“SSI”), SuperShuttle Franchise Corporation (“SSFC”), and

the City Licensees: Cloud 9 Shuttle, Inc., SuperShuttle of San Francisco, Inc., Mini-Bus Systems, Inc., SuperShuttle

Los Angeles, Inc., and Sacramento Transportation Services, Inc. 4 The Class Action Settlement Agreement and Release of Claims (“Settlement Agreement”), including all Exhibits,

is attached as Exhibit 1 to the Declaration of Aaron Kaufmann in Support of Plaintiffs’ Motion for Preliminary

Approval of Class Action Settlement (“Kaufmann Decl.”), filed herewith.


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Defendants have agreed to operational/programmatic changes to the SuperShuttle

Franchise program that improve the financial terms for current SuperShuttle van

operators and afford them enhanced entrepreneurial opportunities;

In addition to the Class Fund, Defendants will pay settlement administration expenses up

to $100,000, with any additional settlement administration expenses to be paid out of the

Gross Settlement Fund;

Class Counsel will seek an award of attorneys’ fees of 33.33% of the Gross Settlement

Fund ($4,000,000), plus reimbursement of litigation expenses of up to $300,000, subject

to the filing of a fee motion before notice is mailed in order to give the Class time to

review the request prior to Court approval;

Plaintiffs will apply for service awards of up to $100,000 to the current and proposed

Named Plaintiffs collectively, with Class Counsel to allocate awards amongst them,

subject to Court approval;

Settlement payments will be distributed amongst approximately 3,230 Settlement Class

Members based upon the approximate number of weeks worked during the Class Period.

Each week worked by a Secondary Operator will be valued at 65% of the value of each

week worked by a Primary Operator, in recognition of the greater expenses and risk

incurred by Primary Operators.

Plaintiffs submit that the proposed settlement is fair and reasonable in light of the risks

the Named Plaintiffs and Class Members face in connection with litigation of class certification

and liability issues, and because many of the claims were ordered to individual private

arbitration.5 Plaintiffs’ counsel believe that the settlement is a fair and reasonable resolution of

the alleged claims. Accordingly, Plaintiffs request that the Court (1) grant preliminary approval

of the proposed settlement; (2) conditionally certify for settlement purposes only a Settlement

Class; (3) approve the form, content, and method of distribution of the Notice of Class Action

Settlement; (4) appoint Leonard Carder, LLP, Rukin Hyland Doria & Tindall LLP, Lewis,

Feinberg, Lee, Renaker & Jackson, P.C., and Bryan Schwartz Law as Settlement Class Counsel;

(5) appoint Roosevelt Kairy, Harjinder Singhdietz (aka Harjinder Dubb), Drake Osmun, Wayne

Dickson, Larry Brown, Munir Ahmed, Frederick Fernandez and Yurik Zadov as Class

Representatives; (6) appoint KCC as Settlement Administrator; and (7) schedule a hearing

regarding final approval of the proposed settlement and Class Counsel’s request for attorneys’

fees, costs, and Plaintiffs’ Service Awards.

5 The Ninth Circuit Court of Appeal granted Plaintiffs’ Petition for Interlocutory Review of this Court’s September

20, 2012 Order granting SuperShuttle’s Motion to Compel Arbitration. That appeal was pending at the time of

settlement.


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II. Factual Background and the Parties’ Contentions

SuperShuttle International, Inc. (“SuperShuttle”), a wholly-owned subsidiary of Veolia

Transportation, Inc., is a leader in shared-ride airport transportation service. SuperShuttle-

branded vans provide door-to-door service to and from all major California airports: San

Francisco, Sacramento, Los Angeles, Ontario, Orange County, and San Diego. SuperShuttle

operates in each market through wholly-owned companies referred to as “City Licensees.”

Around 2001, SuperShuttle began moving from an employee model to an independent

contractor franchise system, under which all drivers had to enter a franchise agreement or serve

as a sub-driver for a franchisee.6 The franchises cost approximately $21,000 to $50,000, which

most drivers financed through SuperShuttle. Franchise drivers are financially responsible for all

van-related expenses, and pay SuperShuttle license fees amounting to 25 per cent of the fares

collected for their vans, “System Fees” (charged to access SuperShuttle’s dispatch system)

between $250 and $325 per week, and other fees.

Because SuperShuttle deems the Drivers franchisees rather than employees, it does not

attempt compliance with federal and state wage and hour laws. Drivers’ only compensation is

their percentage of passenger fares and tips. Drivers receive no overtime premium pay, are not

guaranteed a minimum wage, and do not receive reimbursement from SuperShuttle for business

expenses they incur in connection with their franchise. Nor does SuperShuttle have any policy to

provide off-duty meal periods.

The Named Plaintiffs contend that SuperShuttle has misclassified the Drivers as

franchisees/independent contractors, and in doing so has failed to pay Drivers for out-of-pocket

business expenses, overtime pay, and minimum wage for certain work time, as well as having

made no effort to comply with California meal and rest period laws. SuperShuttle maintains that

at all times the SuperShuttle franchisees and the non-franchisee drivers of SuperShuttle vans

have properly been classified as non-employees of SuperShuttle and the City Licensees.

6 A small number of Drivers operating from the Ontario Airport operated under an “Independent Owner-Driver

Subcarrier Agreement,” not a Franchise Agreement; but the terms and conditions of their work were consistent with

the Drivers who were classified as “Franchisee.” For ease of reference here, all Primary Operator Drivers who

worked under contract with any of SuperShuttle’s City Licensees is referred to as a “Franchisee.”


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III. Procedural Background

This case was filed May 8, 2008, in California Superior Court, Alameda County,

asserting claims for overtime, minimum wage, meal period pay, unreimbursed business

expenses, unlawful wage deductions and related penalties under the California Labor Code and

the Unfair Competition Law, Business & Professional Code § 17200. Defendants removed the

action to this Court. Plaintiffs amended the complaint in January 2009 to bring federal Fair Labor

Standards Act claims for overtime and minimum wages. Dkt. 45. The Court certified a FLSA

collective action (Dkt. 124), and approximately 370 drivers opted into the case.

Defendants moved to dismiss the case on the ground that Plaintiffs had failed to join all

necessary parties (Dkt. 139) and simultaneously moved to dismiss the California claims for lack

of subject matter jurisdiction. Dkt. 146. In October 2009, after substantial discovery, Plaintiffs

filed their motion for Fed. R. Civ. P. 23 class certification of the California state law claims for

all California drivers working during the Class Period. Dkt. 183. However, prior to SuperShuttle

filing its opposition to class certification, this Court issued an order dismissing Plaintiffs’ state

law claims on the ground that the California Public Utilities Commission had exclusive

jurisdiction over airport van drivers (and denying Defendants’ motion to dismiss for failure to

join all necessary parties). Dkt. 222. The Ninth Circuit then reversed the dismissal order. Kairy v.

SuperShuttle Int’l., 660 F.3d 1146 (9th Cir. 2011).

Following the remand to this Court, SuperShuttle sought to enforce the arbitration

provisions in the Drivers’ franchise agreements by moving to stay all proceedings and send four

named plaintiffs and the opt-ins to arbitration. Dkt. 261. By order dated September 20, 2012, this

Court ordered that all arbitrations proceed individually and that sub-drivers must arbitrate as

well. Dkt. 362. The Court declined to rule on Plaintiffs’ unconscionability defense to several

franchise agreement provisions that define the parameters for the arbitration, reasoning that these

terms were not contained within the body of the arbitration clause, but did strike the provision

that required the drivers to share the costs of arbitration. Id. at 11-13. Because not all driver

agreements contain an arbitration provision, and some other agreements could not be located,

approximately 45 opt-ins’ cases remained in this Court.


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The Ninth Circuit granted interlocutory review of the order compelling arbitration and

granted the Parties an extension of the briefing schedule to allow them to enter into mediation.

Following several days of mediation, the Parties entered into a Memorandum of Understanding

on January 13, 2014. That MOU was the basis for the Settlement Agreement executed in April

2014 and presented here for the Court’s approval.

IV. Terms of the Proposed Settlement

The complete Settlement Agreement is attached as Exhibit 1 to the Kaufmann Decl., and

a summary of its terms is attached as Exhibit 1 to this Memorandum of Points and Authorities.

V. Argument

A. Preliminary Approval of the Settlement is Appropriate

The Court must approve the dismissal or compromise of a class action. Fed. R. Civ. P.

23(e). Approval involves a two-step process in which the Court first determines whether a

proposed class action settlement warrants preliminary approval and, if so, directs that notice be

sent to proposed class members, reserving closer scrutiny for the final approval hearing. See

Harris v. Vector Mktg. Corp., C-08-5198 EMC, 2011 WL 1627973, at *7 (N.D. Cal. Apr. 29,

2011). Approval of a class action settlement rests in the discretion of the Court, which should

ultimately determine whether the settlement is fundamentally fair, adequate, and reasonable to

the Class. See Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375 (9th Cir. 1993).

Courts should grant preliminary approval of a settlement if it “appears to be the product

of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not

improperly grant preferential treatment to class representatives or segments of the class, and falls

within the range of possible approval.” See In re Tableware Antitrust Litig., 484 F.Supp.2d 1078,

1079 (N.D. Cal. 2007). Courts should also apply their discretion in light of the judicial policy

favoring settlement of complex class action litigation. See, e.g., Officers for Justice v. Civil Serv.

Comm'n of City & Cnty. of San Francisco, 688 F.2d 615, 625 (9th Cir. 1982) (“[I]t must not be

overlooked that voluntary conciliation and settlement are the preferred means of dispute

resolution. This is especially true in complex class action litigation . . . .”). As discussed below,

application of the relevant factors to this case supports preliminary approval.


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1. Settlement is the Product of Informed, Non-Collusive Negotiation

Adequate discovery and the use of an experienced mediator support the conclusion that

settlement negotiations were informed and non-collusive. See Villegas v. J.P. Morgan Chase &

Co., CV 09-00261 SBA EMC, 2012 WL 5878390, at *6 (N.D. Cal. Nov. 21, 2012).

This Settlement Agreement was reached through arm’s-length negotiations by

experienced counsel familiar with the applicable law, class action litigation, and the facts of this

case. Kaufmann Decl., ¶ 4. The Parties attended five days of mediation and negotiated over the

course of six months, with the involvement of the mediator, all of which followed two appeals

and extensive discovery, including significant document production and depositions of

representatives of both Parties, and discovery from Opt-Ins. Kaufmann Decl., ¶¶ 4-5.

2. The Settlement Falls Within the Range of Possible Approval

In deciding whether the proposed settlement is adequate and falls within the range of

possible approval, “courts primarily consider plaintiffs’ expected recovery balanced against the

value of the settlement offer,” taking into account the risks of continuing litigation. See In re

Tableware Antitrust Litig., 484 F.Supp.2d at 1080. Courts should recognize that “the agreement

reached normally embodies compromise; in exchange for the saving of cost and elimination of

risk, the Parties each gave up something they might have won had they proceeded with

litigation.” Officers for Justice, 688 F.2d at 624 (internal quotations and citation omitted). Here,

the Settlement is fair, adequate, and well within the range of possible approval.

i. The Strength of Plaintiffs’ Case and the Risk of Further Litigation

Support Preliminary Approval

Plaintiffs have alleged that through contracts and operational policies and practices,

Defendants have retained sufficient controls to support a finding that the Primary and Secondary

Operators were Defendants’ employees for purposes of the relevant state and federal

employment statutes. Plaintiffs acknowledge that they would face a significant risk of failing to

establish de facto employment status, in part because a Court could find that some of the controls

that Defendants maintained over Plaintiffs and the proposed Class reflect government regulatory

mandates rather than indicia of employee status. A trial court in Southern California reached this


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conclusion in a summary judgment ruling that was affirmed in November 2013. See Rabanal v.

Rideshare Port Management, LLC et. al., 2013 WL 6020340 (Cal. App. 2013) (many control

factors offered by plaintiffs were required by the city of Los Angeles and the Public Utilities

Commission and thus were not indicia of employee status). In addition, under the current model,

proposed Class members maintain some agency: they set their own schedules (within certain

limits); have some discretion over which offers they will accept for inbound passengers;7 hire,

schedule and pay sub-operators to drive their vans (subject to approval); select and pay vendors;

arrange for charter use of their vans; and have certain flexibility in using their vans for

commercial and personal purposes other than servicing SuperShuttle customers. Such factors

have contributed, in part, to defense verdicts in other cases. See e.g., Christler v. Express

Messenger Systems, Inc., 171 Cal. App. 4th

72 (2009). SuperShuttle recently obtained a favorable

decision from the National Labor Relations Board, finding its Drivers properly classified as

independent contractors for purposes of the National Labor Relations Act. SuperShuttle Los

Angeles, Inc., NLRB Case. No. 31-CA-092489 (2013).8

Plaintiffs believe that Secondary Operators have strong claims that they were

misclassified as independent contractors and that their relationships with SuperShuttle have more

in common than they differ. Schwartz Decl. ¶ 5. But Plaintiffs also acknowledge that they face

significant risk of being unable to establish that Secondary Operators are or were Defendants’

employees, because Secondary Operators are largely selected, scheduled, retained and paid by

Primary Operators, with whom they have separate and varied financial and business

relationships. Id.

With respect to both Secondary and Primary Operators, Plaintiffs face the possibility that

the Ninth Circuit might affirm this Court’s order compelling individual arbitrations for 325 of the

opt-ins as well as for sub-drivers. And even if the Ninth Circuit were to reverse, Plaintiffs

7 The parties dispute whether drivers can exercise this discretion in all cases.

8 In contrast, the California Unemployment Insurance Appeals Board has ruled that SuperShuttle Drivers were

“employees,” subjecting the company to unemployment insurance taxes and certifying its decision as Precedent.

SuperShuttle International, Inc., v. Employment Development Department, CUIAB Precedent Tax Decision No. P-

T-502. (SuperShuttle’s appeal to this decision is pending).


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acknowledge a substantial risk that they would be unable to obtain class certification and

establish that common issues predominate over individual issues. For example, the Court may

have found that certain drivers operated under different “business models” or had different

opportunities for profit and loss that could create individual issues. See e.g., Narayan v. EGL,

Inc., et. al., 285 F.R.D. 473 (2012); Spencer v. BeavEx, Inc., 2006 WL 6500597 (S.D. Cal.

2006). Similarly, individual issues may predominate on one or more of the substantive claims.

See e.g., Wren v. RGIS Inventory Specialists, 256 F.R.D. 180, 208 (N.D. Cal. 2009) (certification

of meal period pay claim not appropriate because of differing circumstances of employees and

need to determine whether, and why, an individual did not take a meal period).

Even assuming Plaintiffs could show employee status, SuperShuttle could assert

numerous defenses on liability and damages. On the minimum wage and overtime claims under

the FLSA, for example, Defendants would likely rely on Abel v. Southern Shuttle Services Inc.,

631 F. 3d 1210 (2011), a decision finding employee airport shuttle drivers fell within the Motor

Carrier Act (“MCA”) exemption from the FLSA. SuperShuttle asserts this same defense for an

analogous, but not identical, exemption under state law. See Wage Order 9-2004, §3(L)(1)

(California overtime protections not applicable to employees whose hours of service are

regulated by particular provisions of state and federal regulations for the hours of service of

drivers). SuperShuttle’s primary defense to the expense reimbursement and wrongful deduction

claims would likely have been that it believes it paid increased compensation to Drivers that was

intended to reimburse them for the business expenses they incurred. See Gattuso v. Harte-Hanks

Shoppers, Inc. 42 Cal. 4th

554 (2007) (employer can satisfy its duty to reimburse its employees

for business expenses by paying enhanced compensation, if certain conditions are met). On

damages for the expense-reimbursement claims, Drivers may have been limited to certain types

of expenses, with either certain categories deemed not recoverable or Drivers limited to claiming

only those expenses for which they maintained years’ worth of detailed receipts. See e.g.,

Estrada v. FedEx Ground Package System, Inc., 154 Cal. App. 4th

1, 18-26 (2007).

Without conceding that any adverse rulings would be justified, Plaintiffs recognize the

risk of such outcomes. Although Plaintiffs’ potential recovery was far greater than $12,000,000 -


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- in excess of $100,000,000 if they prevailed on all claims and damages theories for all Class

Members -- the Settlement amount is reasonable in light of the numerous obstacles Plaintiffs

faced in winning class certification and liability and proving damages. Further, a judgment of the

magnitude Plaintiffs seek could be uncollectable, depending on which legal entities (some of

which have little or no assets) were determined to be the Drivers’ “employer” and whether or not

any Defendants sought bankruptcy protection. This Settlement avoids these risks while ensuring

that Class members receive substantial consideration for a release of their claims.

ii. The Settlement Consideration and Allocation Are Fair

“[I]t is well-settled law that a cash settlement amounting to only a fraction of the

potential recovery does not per se render the settlement inadequate or unfair. Rather, the fairness

and the adequacy of the settlement should be assessed relative to risks of pursuing the litigation

to judgment.” Villegas, 2012 WL 5878390, at *6 (internal quotations and citations omitted).

Here, the Settlement will result in a fair and reasonable award to Class members in light

of the litigation risks. The Settlement affords relief to Class Members who likely would never

have filed individual claims. The net amount to be paid to Drivers under the proposed Settlement

(after payment of class counsel fees and expenses, PAGA Penalties and Plaintiffs’ service

awards), will be approximately $7,592,500. Kaufmann Decl., ¶ 7. The average Class Member

payout will be approximately $2,350. Id. Under the circumstances, the amount of the settlement

is fair, adequate and reasonable. See Scott v. Bimbo Bakeries USA, No. 2:10cv03154 (E.D. Pa.

March 5, 2014) (ECF No. 174) (approving a settlement of wage and hour claims for payments of

$900 to each current driver and $450 to each former driver, plus $12,500 enhancement

payments); Tijero v. Aaron Brothers, Inc., No. C 10-01089-SBA, 2013 WL 6700102 at *3 (N.D.

Cal. Dec. 19, 2013) (granting preliminary approval of settlement of wage and hour claims where

the average recovery would be between approximately $28 and $45); Bautista v. Harvest

Management Sub, No. 2:12-cv-10004 (C.D. Cal. Oct. 16, 2013) (ECF No. 60) (preliminarily

approving a $2.2 million settlement of wage-and-hour violation claims of 14,000-member class).

The plan of allocation is also fair and reasonable. The Settlement provides that the

settlement fund shall be allocated based on the best available records from which to estimate the


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number of weeks Class Members worked during the Settlement Period, a standard allocation

methodology in wage-and-hour cases. See, e.g., Ching v. Siemens Industry, Inc., No. C 11-4838

MEJ, at *6 (N.D. Cal. Nov. 26, 2013) (granting preliminary approval of settlement and finding

that weeks worked was a reasonable basis for allocating individual payments). The higher

allocation to Primary Operators compensates these Class Members for the increased risks they

have incurred by signing long-term franchise agreements with Defendants, and the additional

costs associated with being the Driver under contract (including franchise fees and dispatch fees

paid to SuperShuttle, and insurance costs that are typically not paid by Secondary Operators).

3. Attorneys’ Fees and Costs that Plaintiffs Will Request Are Reasonable

The Settlement provides that, prior to the final approval hearing, Class Counsel may

petition the Court for an award of fees in an amount not to exceed $4,000,000 (33.33% of the

Settlement Amount) and an award of litigation expenses in an amount in not to exceed $300,000.

Class Counsel submit that this provision is fair and reasonable given their significant investment

of time and expense over the last six years, their contingent fee risk, and the result that they have

achieved. The fees requested are based on the amount that will be paid out to the Class, and are

within the range of reasonableness established by Ninth Circuit authority. See, e.g., Knight v. Red

Door Salons, Inc., No. 08-01520 CD, at *6 (N.D. Cal. Feb. 2, 2009) (observing that class action

fee awards average around one-third of the recovery) (citations omitted).

Class Counsel shall file their application for fees and costs within 10 days of preliminary

approval, so that Class Members can be fully informed of the fee request and have ample time to

consider the request prior to the deadline for objecting and opting out. See In re Mercury

Interactive Securities Litigation, 618 F.3d 988 (9th

Cir. 2010). The Class Settlement Notice will

inform Class Members that the fee motion will be on file with the Court and available for public

review. The fee motion will be heard at the same time as the final approval motion.

4. The Proposed Service Awards Are Reasonable

Service or incentive awards are typical in class action cases. Rodriguez v. W. Publ’g

Corp., 563 F.3d 948, 958 (9th Cir. 2009). In evaluating incentive awards, courts may consider

“1) the risk to the class representative in commencing suit, both financial and otherwise; 2) the


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notoriety and personal difficulties encountered by the class representative; 3) the amount of time

and effort spent by the class representative; 4) the duration of the litigation and; 5) the personal

benefit (or lack thereof) enjoyed by the class representative as a result of the litigation.” Van

Vranken v. Atlantic Richfield Co., 901 F.Supp. 294, 299 (N.D. Cal. 1995).

Here, Plaintiffs’ counsel believe that Service Awards to the eight Representative

Plaintiffs up to the total amount requested is consistent with a fair, just and adequate settlement.

Plaintiffs will provide supporting declarations at final approval describing their efforts in this

case, amounts of time spent serving the class, and risks incurred.

B. Provisional Certification of the Class Is Appropriate

This Court has already certified a FLSA 12(b)(6) collective action (Dkt. 124), citing the

standardized system of company control evidenced in uniform contracts and manuals. The

Named Plaintiffs now request that the Court provisionally certify the Rule 23(b)(3) class for

settlement purposes. The purpose of provisional class certification is to facilitate distribution to

proposed Class Members of notice of the terms of a proposed settlement and the date and time of

the final approval hearing. See Manual for Complex Litigation, Fourth §§ 21.632-33.

Although the standards for establishing a Rule 23 class are more stringent than those for a

12(b)(6) collective action, the Proposed Settlement Class meets this more rigorous standard as

well. For purposes of this Settlement only, Defendants agree that the proposed Settlement Class

satisfies the requirements for class certification set forth in Rule 23. Settlement Agreement, ¶ 24.

1. Standards Governing Approval of Settlement Classes

When considering a motion for preliminary approval of a settlement, the Court must

make a threshold determination as to whether the proposed settlement class meets meet Rule 23

requirements. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019-20 (9th Cir. 1998).

Specifically, the Court must determine whether the proposed class satisfies the requirements that

(1) the class is so numerous that joinder would be impracticable; (2) there are questions of law or

fact common to the class; (3) the named plaintiffs’ claims are typical of the claims of the

proposed class; and (4) plaintiffs and their counsel will adequately and fairly represented the

interests of the class. Id. at 1019. Additionally, the action must be maintainable under Fed. R.


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Civ. P. 23(b) (1), (2), or (3). Id. at 1022. Based on these standards, as further discussed below,

the Court should certify the proposed Settlement Class for settlement purposes.

2. The Settlement Classes Satisfy the Requirements of Rule 23(a)

The proposed Settlement Class satisfies all requirements of Rule 23(a). First, it is

sufficiently numerous to satisfy Rule 23(a)(1). Courts have generally found a class of at least 40

members meets the numerosity requirement. See, e.g., EEOC v. Kovacevich “5” Farms, No.

CV-F-06-165 OWW/TAG, 2007 WL 1174444, at *21 (E.D. Cal. Apr. 19, 2007). Here, the

proposed Class has approximately 3,230 drivers and sub-drivers.

Second, Rule 23(a)(2) is satisfied because there are questions of law and fact common to

the proposed Class. See Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 589 (9th Cir. 2012)

(“Commonality only requires a single significant question of law or fact.”). Here, common

liability issues include whether SuperShuttle’s controls systems render Drivers employees under

California and federal law; whether the controls are measures necessary to comply with federal,

state and local laws; and whether expenses borne by Drivers are reimbursable under California

law. Any one of these would satisfy the commonality requirement of Rule 23(a)(2).

Third, the typicality requirement of Rule 23(a)(3) is satisfied because the claims raised by

the Named Plaintiffs are typical of the claims asserted on behalf of the Class. Typicality is

established if representative claims are “reasonably co-extensive with those of absent class

members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020. The claims of the

Named Plaintiffs arise out of the same factual and legal circumstances as the claims of other

Class Members: like all Class Members, the Named Plaintiffs were classified as non-employees

and therefore denied the protection of California wage and hour law, but were subject to controls

by SuperShuttle that they allege are indicia of employee status.

Fourth, Plaintiffs’ counsel satisfy the adequacy requirement of Rule 23(a)(4), as well as

the requirements of Rule 23(g). Rule 23(a)(4) requires that the Parties fairly and adequately

protect the interests of the class. The adequacy requirement is met where the named plaintiffs

and their counsel do not have conflicts of interest with other class members, and the named

plaintiffs and their counsel will vigorously prosecute the interests of the class. Hanlon, 150 F.3d


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at 1020. Secondary Operators make up a separate sub-class from Primary Operators, with

separate counsel. Rule 23(g) (1) requires courts, when appointing class counsel, to consider: (1)

the work counsel has done in identifying or investigating potential claims in the action; (2)

counsel’s experience in handling class actions, other complex litigation and the type of claims

asserted in the action; (3) counsel’s knowledge of the applicable law; and (4) the resources that

counsel will commit to its representation.

Here, the Named Plaintiffs have no conflicts of interest with the absent Class Members.

Additionally, Plaintiffs’ counsel have identified, investigated and prosecuted the claims; have

extensive experience in class action litigation, including wage-and-hour claims of the type

asserted here, and have been appointed Class Counsel in numerous other cases; and have

demonstrated that they have the ability and resources to vigorously pursue the claims.9 For these

reasons, Plaintiffs’ counsel and the Named Plaintiffs meet the adequacy requirement of Rule

23(a)(4), and Plaintiffs’ counsel should be appointed as Class Counsel pursuant to Rule 23(g).

3. The Settlement Class Meets the Requirements of Rule 23(b)(3)

The settlement classes meet the requirements of Rule 23(b)(3), because common

questions “predominate over any questions affecting only individual members,” and class

resolution is “superior to other available methods for the fair and efficient adjudication of the

controversy.” First, the settlement classes satisfy the predominance requirement, which examines

whether the proposed classes are “sufficiently cohesive to warrant adjudication by

representation.” Hanlon, 150 F.3d at 1022. “When common questions present a significant

aspect of the case and they can be resolved for all members of the class in a single adjudication,

there is clear justification for handling the dispute on a representative rather than on an

individual basis.” Id. Here, common issues predominate because all of Plaintiffs’ state-law

claims turn on a common liability issue suited to class-wide adjudication: whether the Settlement

Class Members are employees of SuperShuttle under California law based on the controls

9 Kaufmann Decl., ¶¶ 4-6, 10-27; Declaration of Peter Rukin in Support of Plaintiffs’ Motion for Preliminary

Approval, , ¶¶ 2-6, filed herewith; Declaration of Daniel Feinberg in Support of Plaintiffs’ Motion for Preliminary

Approval, filed herewith, ¶¶ 3-9; Declaration of Bryan Schwartz in Support of Plaintiffs’ Motion for Preliminary

Approval, filed herewith, ¶¶ 2-9.


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Defendants exercise under the terms of standardized franchise agreements and manuals

applicable to all Drivers. Whether these agreements and policies establish a right to control the

manner and means of Drivers’ service is an inherently common question that predominates over

any individualized issues. Stemming from this threshold question of employee status, liability for

Plaintiffs’ state law claims likewise depends upon common proof.

Second, Rule 23(b) (3) is satisfied because resolution of the issues in this case on a class-

wide basis is “superior to other available methods for the fair and efficient adjudication of the

controversy.” See Hanlon, 150 F.3d at 1023. The alternative to a single class action -- numerous

individual actions -- would be inefficient and unfair. See, e.g., Custom Led, LLC v. eBay, Inc.,

12-CV-00350-JST, 2013 WL 4552789 (N.D. Cal. Aug. 27, 2013) (superiority established

because a “class action would achieve the resolution of the putative class members' claims at a

lower cost and would reduce the likelihood of inconsistent determinations”). Class adjudication

is particularly appropriate here given the claim that SuperShuttle had a blanket requirement that

all drivers operate as franchisees (or sub-drivers under such franchisees), all of whom were

subject to standardized contractual and practical controls.

C. The Proposed Notice is Adequate

Under Rule 23(e), the Court “must direct notice in a reasonable manner to all class

members who would be bound by a propos[ed settlement].” Fed. R. Civ. P. 23(e) (1). The notice

provided to members of a class certified under Rule 23(b) (3) must be the “best notice

practicable under the circumstances.” Fed. R. Civ. P. 23(c) (2)(B). Notice is satisfactory “if it

generally describes the terms of the settlement in sufficient detail to alert those with adverse

viewpoints to investigate and to come forward and be heard.” Churchill Vill., L.L.C. v. Gen.

Elec., 361 F.3d 566, 575 (9th Cir. 2004) (internal citations omitted).

The proposed Notice and notice plan satisfy the requirements of Rule 23(e) and due

process. The proposed Notice, submitted as Exhibit 1(B) to the Kaufmann Decl., explains the

nature of the action and the terms of the Settlement (including the Settlement Amount, individual

Class Members’ estimated minimum recovery, the attorneys’ fees to be paid, how settlement

payments will be calculated, the claims that will be released), and explains how the Class


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Member may collect his portion of the Settlement, exclude himself from the Settlement, or object

to the Settlement. See id. This information satisfies Rule 23(e). See, e.g., Villegas, 2012 WL

5878390, at *8 (approving a notice containing the same categories of information).

The proposed notice procedure provides Class Members with the best notice possible. In

addition to running a National Change of Address (NCOA) search upon receiving the class

address list from Defendants, the Claims Administrator will skip trace any returned Class Notice

Packages and will re-mail those for which an updated address has been found. See Exhibit 1.

This is the best notice practicable. See Ohayon v. Hertz Corp., No. 5:11-cv-01662 EJD, at *5-6

(N.D. Cal. Oct. 16, 2012) (NCOA search and reasonable diligence to obtain addresses for

returned mailings met the Rule 23 notice standards).

D. The Court Should Set a Final Approval Hearing

Finally, the Court should set a hearing for final approval of the Settlement. The Parties

propose Plaintiffs’ counsel’s application for attorneys’ fees and costs and awards of Service

Awards for the Named and Opt-In Plaintiffs, be filed and served no later than 10 days after the

Court grants preliminary approval, and that the other papers in support of final approval are filed

14 days before the final approval hearing.

VI. Conclusion

For the foregoing reasons, Plaintiffs respectfully request that the Court: (1) grant

preliminary approval of the proposed Settlement; (2) conditionally certify for settlement

purposes the Settlement Class; (3) approve the form, content and method of distribution of the

Notice and Claim Form; (4) appoint Leonard Carder, LLP, Rukin Hyland Doria & Tindall LLP,

Lewis, Feinberg, Lee, Renaker & Jackson, P.C., and Bryan Schwartz Law as Settlement Class

Counsel; (5) appoint Roosevelt Kairy, Harjinder Singhdietz (aka Harjinder Dubb), Drake

Osmun, Wayne Dickson, Larry Brown, Munir Ahmed, Frederick Fernandez and Yurik Zadov as

class representatives; (6) appoint KCC as Settlement Administrator; and (7) schedule a hearing

regarding final approval of the proposed Settlement, and Class Counsel’s request for attorney’s

fees and costs and awards of Service Awards to the Representative Plaintiffs.

//


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Dated: April 23, 2014 Respectfully Submitted,

By: /s/ Daniel Feinberg . Daniel Feinberg Daniel Feinberg Kirsten Scott LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 476 9th Street Oakland, CA 94607 Telephone: (510) 839-6824 Facsimile: (510) 839-7839 Philip Monrad, SBN 151073 Aaron Kaufmann, SBN 148580 David Pogrel, SBN 203787 LEONARD CARDER, LLP 1330 Broadway, Suite 1450 Oakland, CA 94612 Telephone: (510) 272-0169 Facsimile: (510) 272-0174 Peter Rukin, Esq., SBN 178336 Rosha Jones, Esq. SBN 279143 RUKIN HYLAND DORIA & TINDALL LLP 100 Pine Street, Suite 2150 San Francisco, CA 94111 Telephone: (415) 421-1800 Facsimile: (415) 421-1700 Bryan Schwartz, SBN: 209903


BRYAN SCHWARTZ LAW


Oakland, CA 94612

Telephone: (510) 444-9300

Facsimile: (510) 444-9301

Attorneys for Plaintiffs


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