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Shaun Setareh (SBN 204514) . [email protected]

2 Tuvia Koroblcin (SBN 268066) tuvia@setarehlaw .com

3 Neil Larsen (SBN 276490) [email protected]

4 SETAREH LAW GROUP s 9454 Wilshire Boulevard, Ste. 907

·Beverly Hills, California 90212 6 Tel: (310) 888-7771

7 Fax: (31 0) 888-01 09

8 Attorneys for Plaintiffs,

· ORrGfNAL FILED ON

NOV I 0 2014

ROBERT MONTGOMERY, ARACELINEGRETE, and CAROL PHILIPS 9

10 SUPERIOR COURT OF THE STATE OF CALIFORNIA

11 FOR THE COUNTY OF KINGS (UNLIMITED JURSIDICTJON)

12

13 ROBERT MONTGOMERY, ARACELI NEGRETE, and CAROL PHILIPS, on behalf

14 · of themselves, all others similai·ly situate~, and -

15 the general public,

16 Plaintiffs,

17 vs.

18 DEL MONTE CORPORATION, a Delaware

l 9 cotporation; DEL MONTE FOODS, INC., a

20 Delaware cotporation; and DOES 1-50, inclusive,

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Defendants. 22

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Montgoml!'l )": ct n/ v. Di!l Mo111e C01p .. et nl

Case No. 13 C 0204

NOTICJi; OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Date: Time:

Hearim: InfOrmation December 4, 2014 9:00a.m.

Department: 4 Judge: Hon. James T. LaPm1e

Submitted Under Separate Cover 1. Declaration of Shaun Setareh; 2. [Proposed) Order

BY FAX

Notice of Motion and Motion for Preliminary Awrov~l of Closs Action Settlement

1 Montgomery, et al v. Del Monte Corp., et al Notice of Motion and Motion for

Preliminary Approval of Class Action Settlement

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NOTICE OF MOTION AND MOTION

TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that, on December 4, 2014 at 9:00 a.m., or as soon thereafter

as may be heard, in Department 4 of the Kings County Courthouse of the California Superior

Court, located at 1426 South Drive, Hanford, California 93230, Plaintiffs Araceli Negrete and

Carol Philips (collectively, “Plaintiffs”) will, and hereby do, move this Court for an order:

(1) Granting class certification of the Settlement Class solely for settlement purposes pursuant to

California Code of Civil Procedure § 382;

(2) Preliminarily approving the Settlement Agreement submitted concurrently herewith;

(3) Appointing Plaintiffs Negrete and Philips as Class Representatives for the Settlement Class;

(4) Appointing Shaun Setareh of Setareh Law Group as Class Counsel for the Settlement Class;

(5) Approving attorneys’ fees of Thirty-Three and One-Third Percent (33 1/3%) of the gross

settlement amount;

(6) Approving the form and content of the proposed Class Notice, Claim Form, and Exclusion

Form submitted concurrently herewith;

(7) Approving the notice procedure set forth in the Settlement Agreement and directing that

notice be given to class members consistent therewith;

(8) Approving Rust Consulting, Inc. as the Settlement Administrator; and

(9) Scheduling a final fairness hearing.

As explained in further detail in the attached Memorandum of Points and Authorities, a

class action settlement (“Settlement Agreement”) has been reached between Plaintiffs, on the

one hand, and Big Heart Pet Brands (“BHPB”) (formerly known as Del Monte Corporation and

the seller of certain assets to Del Monte Foods, Inc.) and Del Monte Foods, Inc. (“DMFI”), on

the other hand. BHPB and DMFI will be collectively referred to herein as “Del Monte.”

Per the Settlement Agreement, 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 the date on which the Court grants Preliminary

Approval].”

i Montgomery, et al v. Del Monte Corp., et al Memorandum of Points and Authorities ISO

Motion for Preliminary Approval of Class Action Settlement

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................................................................................ iv

MEMORANDUM OF POINTS AND AUTHORITIES ............................................................... 1

I. INTRODUCTION ............................................................................................................. 1

II. OVERVIEW OF THE LITIGATION ............................................................................... 2

A. Summary of Plaintiff's Claims and Del Monte's Defenses. ................................... 3

1. Failure to Provide Meal and Rest Periods.................................................. 3

2. Failure to Pay Wages ................................................................................. 4

3. Del Monte Contends That Donning/Doffing May Not Be Compensable

At All Pursuant to Sandifer v. U.S. Steel and/or the De Minimis

Doctrine...................................................................................................... 5

4. Derivative Claim Under Lab. Code § 203 ................................................. 5

5. Derivative Claim Under Lab. Code § 226 ................................................. 7

6. Del Monte Contends §§ 203 and 226 Penalties Not Available After

Kirby .......................................................................................................... 7

7. Derivative PAGA Penalties ....................................................................... 8

8. Class Certification ...................................................................................... 8

B. Mediation and Settlement Negotiations. ................................................................ 9

III. OVERVIEW OF THE SETTLEMENT........................................................................... 10

A. Settlement Class Definitions. ............................................................................... 10

B. Allocation of Settlement Funds. .......................................................................... 10

1. Class Member Settlement Share Calculation ........................................... 11

2. Subclass Member Settlement Share Calculation ..................................... 11

3. Guaranteed Minimum Payment ............................................................... 11

C. Release of Claims. ............................................................................................... 12

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D. Notice and Claims Procedures. ............................................................................ 12

IV. ARGUMENT ................................................................................................................... 14

A. The Class Meets the Requirements for Class Certification Under California Code

of Civil Procedure § 382. ..................................................................................... 14

1. Objectively Ascertainable and Sufficiently Numerous Class .................. 15

2. Predominance of Common Questions ..................................................... 16

3. Plaintiffs Are Typical and Representative of the Settlement Class ......... 17

4. Plaintiffs and Their Counsel Will Adequately Represent the Class ........ 18

B. This Court Should Preliminarily Approve the Settlement Because It Is a Fair,

Adequate, and Reasonable Compromise of Disputed Wage Claims. .................. 19

1. The Settlement Was Reached Via Arm's Length Negotiations of

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 ................................ 20

a. Del Monte's estimated potential liability exposure ..................... 22

b. Risks in Going Forward with Litigation ..................................... 25

2. The Proposed Method for Dividing the Net Settlement Fund Among

Settlement Class Members Is Fair, Adequate, and Reasonable. .............. 26

3. The Proposed Awards of Attorneys’ Fees and Costs Are Fair, Adequate,

and Reasonable and Should Be Preliminarily Approved. ........................ 27

4. The Proposed Service Payments to Plaintiffs Are Also Fair, Adequate,


5. The Proposed Payment to the Claims Administrator is Fair, Adequate,


C. The Proposed Notice and Claims Administration Plan Complies with Rule of

Court 3.66(e) and Should Be Approved Because It Is Reasonably Calculated to

Give Actual Notice to Settlement Class Members and Sufficient Time to

Exercise Their Rights. .......................................................................................... 29

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D. The Proposed Class Notice Complies with Rule 3.766(d) and (e) and Should Be

Approved Because It Clearly and Concisely Explains All Pertinent Information

About the Settlement to Class Members and Enables Them to Intelligently

Exercise Their Rights. .......................................................................................... 29

E. The Court Should Enjoin Plaintiffs and all Class Members From Filing or

Prosecuting any Claims, Suits or Administrative Proceedings Regarding Claims

Released by the Settlement……………………………………………………...30

V. CONCLUSION ................................................................................................................ 31

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TABLE OF AUTHORITIES

Cases

Air Line Stewards, etc., Local 550 v. Am. Airlines, Inc.

(7th Cir. 1972) 455 F.2d 101 .............................................................................................. 21, 26

Alaniz v. California Processors, Inc.

(N.D.Cal. 1976) 73 F.R.D. 269 ................................................................................................. 15

Bell v. Farmers Ins. Exchange

(2004) 115 Cal.App.4th 715 ................................................................................................. 8, 28

Bowles v. Superior Court (Nickel Jr.)

(1955) 44 Cal.2nd

574 ................................................................................................................ 16

B.W.I. Custom Kitchen v. Owens-Illinois

(1981) 191 Cal.App.3d 1341 .................................................................................................... 18

Cartt v. Superior Court

(1975) 50 Cal.App.3d 960 ........................................................................................................ 29

Cervantez v. Celestica Corp.

(C.D. Cal. 2009) 618 F.Supp. 2d 1208 ....................................................................................... 5

Chavez v. Netflix, Inc.

(2008) 162 Cal.App.4th 43 ....................................................................................................... 27

Choate v. Celite Corp.

(2013) 215 Cal.App.4th 1460 ............................................................................................... 7, 25

Clark v. Am. Residential Servs. LLC

(2009) 175 Cal.App.4th 785 ..................................................................................................... 22

Classen v. Weller

(1983) 145 Cal.App.3d 27 .................................................................................................. 17, 18

De Weese v. Unick

(1980) 102 Cal.App.3d 100 ...................................................................................................... 31

Dosier v. Miami Valley Broadcasting Corp.

(9th

Cir. 1981) 656 F.2d 1295 ................................................................................................... 31

Dunk v. Ford Motor Co.

(1996) 48 Cal.App.4th 1794 ................................................................................... 15, 20, 21, 28

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Duran v. U.S. Bank

(2014) 59 Cal.4th 1 ..................................................................................................................... 8

Elliot v. Spherion Pacific Work, LLC

(C.D.Cal. 2008) 572 F.Supp.2d 1169 ..................................................................................... 6, 7

Fireside Bank v. Super. Ct (Gonzalez)

(2007) 40 Cal.4th 1069 ............................................................................................................. 17

Glass v. UBS Financial Services, Inc.

(N.D. Cal. 2007) 2007 WL 221862 .......................................................................................... 18

Global Minerals & Metals Corp. v. Superior Court

(2003) 113 Cal.App.4th 836 ............................................................................................... 15, 19

Hanon v. Dataproducts Corp.

(9th Cir. 1992) 976 F.2d 497 .................................................................................................... 17

Hebbard v. Colgrove

(1972) 28 Cal.App.3d 1017 ...................................................................................................... 16

Hicks v. Kaufinan & Broad Home Corp.

(2001) 89 Cal.App.4th 908 ....................................................................................................... 16

IBP Inc. v. Alvarez

(2003 - 9th

Cir.) 339 F.3d 894 ..................................................................................................... 5

In re Beef Industry Antitrust Litigation

(5th Cir. 1979) 607 F.2d 167 .................................................................................................... 21

In re Cendant Corp., Derivative Action Litig.

(D. N.J. 2002) 232 F.2d 327 ..................................................................................................... 26

In re Drexel Burnham Lambert Group, Inc.

(2d Cir. 1992) 960 F.2d 285, cert. dismissed ............................................................................ 15

Jaimez v. Daiohs USA, Inc.

(2010) 181 Cal.App.4th 1286 ............................................................................................. 14, 16

Jamison v. Butcher & Sherrerd

(E.D. Pa. 1975) 68 F.R.D. 479 .................................................................................................. 21

Kirby v. Immoos Fire Protection

(2012) 53 Cal.App.4th 1244 ....................................................................................................... 7

LaSala v. American Savigs & Loan Association

(1971) 5 Cal.App.3d 864 .......................................................................................................... 19

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Mallick v. Superior Court

(1979) 89 Cal.App.3d 434 ........................................................................................................ 21

McGhee v. Bank of America

(1976) 60Cal.App.3d 442 ......................................................................................................... 18

Montana v. United States

(1979) 440 U.S. 147 .................................................................................................................. 31

Phillips Petroleum Co. v. Shutts

(1985) 472 U.S. 797 .................................................................................................................. 29

Reyes v. San Diego County Bd. of Supervisors

(1979) 196 Cal.App.3d 1263 .................................................................................................... 16

Rodriguez v. West Publ. Corp.

(C.D. Cal. 2007) 2007 L 2827379 ............................................................................................ 26

Rose v. City of Hayward

(1981) 126 Cal.App.3d 926 ................................................................................................ 15, 17

Sandifer v. U.S. Steel

(2014) 134 S. Ct. 870 .................................................................................................................. 5

Sav-On Drug Stores, Inc. v. Superior Court

(2004) 34 Cal.4th 319 ............................................................................................................... 14

Schwartz v. Harp

(C.D. Cal. 1985) 108 F.R.D. 279 .............................................................................................. 17

Smith v. L'Oreal USA, Inc.

(2006) 39 Cal.4th

77 .................................................................................................................... 6

Steiner v. Mitchell

(1956) 350 U.S. 247 .................................................................................................................... 5

Van Vranken v. Atlantic Richfield Co.

(N.D.Cal. 1995) 901 F.Supp. 294 ............................................................................................. 28

Vasquez v. Superior Court

(1971) 4 Cal.3d 800 .................................................................................................................. 19

Vizcaino v. Microsoft Corp.

(9th Cir. 2002) 290 F.3d 1043 .................................................................................................. 27

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Wershba v. Apple Computer, Inc.

(2001) 91 Cal.App.4th 224 ..................................................................................... 20, 21, 26, 30

Statutes and Regulations

Bus. & Prof. Code § 17200 et seq. ................................................................................................. 2

California Code Civ. Proc. § 382 ....................................................................................... 2, 14, 17

California Labor Code § 201 ................................................................................................. 2, 6, 7

California Labor Code § 202 ......................................................................................................... 2

California Labor Code § 203 ................................................................................................ passim



California Labor Code § 226 ........................................................................... 1, 2, 7, 8, 12, 24, 25

California Labor Code § 226.7 ...................................................................................... 2, 7, 12, 23



California Labor Code § 1194 ....................................................................................................... 2

California Labor Code § 1194.2 .................................................................................................... 2

California Labor Code § 1197 ....................................................................................................... 2

California Labor Code § 1197.1 .................................................................................................... 2

California Labor Code § 2698 et seq. ............................................................................................ 1

California Labor Code § 2699(e). ............................................................................................ 8, 24

California Code of Regulations § 13520. ................................................................................ 7, 25

Federal Rule of Civil Procedure 23(e) ......................................................................................... 19

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Other Authorities

Alba Conte & Herbert Newberg, Newberg on Class Actions § 11L24 (4th

Ed. 2002) ...... 7, 15, 20

Manual for Complex Litigation (Fourth) § 2163 (2006) ....................................................... 15, 20

California Rule of Court 3.766 ............................................................................................ 2,29,31

California Rule of Court 3.769 .............................................................................................. 17, 19

4 Witkin, Cal. Procedure (2d ed. 1971) ....................................................................................... 31

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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Plaintiffs ARACELI NEGRETE and CAROL PHILIPS (“Plaintiffs”) respectfully

request for this Court to grant preliminary approval of the proposed class action Settlement

Agreement with Defendants BIG HEART PET BRANDS (“BHPB”) (formerly known as Del

Monte Corporation and the seller of certain assets to Del Monte Foods, Inc.) and DEL MONTE

FOODS, INC. (“DMFI”) (collectively, “Del Monte”), in the amount of $7,500,000.00 for

approximately 6,000 Settlement Class Members, to compromise disputed claims for failure to

provide meal and rest periods and failure to pay wages, along with other derivative penalties.

The Agreement provides an average gross recovery of approximately $1,250 per Class

Member ($7,500,000 / 6,000 = $1,250). This is an excellent result for the class, especially

given that the claims are narrowly defined and this case was vigorously defended by

experienced and skilled defense counsel.

As explained in further detail herein, the Settlement represents a fair, adequate, and

reasonable compromise of disputed wage claims. Indeed, Plaintiffs obtained an excellent result

for class members in the face of a formidable opposition. Likewise, the Settlement’s attorney

fees and cost provisions are reasonable and consistent with California precedent.

The claims in this case arise from wages and penalties allegedly owed to Plaintiffs and

putative class members for 1) failure to provide meal and rest periods; 2) failure to pay wages as

a result of i) off-the-clock work for donning and doffing work-related gear and other pre- and

post-shift activities and ii) auto-deducting a half-hour meal break from many class members’

time records whether or not they took a full lunch; and 3) derivative claims under Lab. Code §§

203 and 226 and the Private Attorneys General Act, Lab. Code §§ 2698, et seq. (the “PAGA”).

As explained in more detail below, Del Monte asserted many defenses to class

certification, and the merits of Plaintiffs’ claims. Among other things, Defendant disclosed

within the mediation privilege excerpts of declarations from many putative class members stating

that they always received legally compliant meal periods and rest periods and were never

required to work off the clock. Del Monte also presented other defenses as to why it contends



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this case could not be certified as a class action. Among other things, Del Monte asserts that

because many class members declared under penalty of perjury that Del Monte maintains legally

compliant policies and practices, Plaintiffs would not be able to show a “common” illegal policy

or practice, nor could they show that Plaintiffs’ alleged experience was “typical” of the class they

seek to represent.

Thus, although Plaintiffs were prepared to litigate this case through class certification

and, ultimately, to trial, there were risks in going forward with litigation, both on the merits and

in terms of class certification.

The Settlement warrants this Court's preliminary approval because: (1) the class meets

all the requirements for class certification for settlement purposes only under California Code of

Civil Procedure § 382; (2) Plaintiffs and proposed Class Counsel will adequately represent the

class; (3) the Settlement bears all requisite indicia of fairness, reasonableness, and adequacy as

required by § 382; (4) the proposed notice procedure and related forms comport with California

Rules of Court 3.766(d) and (e) and due process requirements; and (5) Plaintiffs’ request for

attorney fees and costs is reasonable and in line with established authority and precedent in

similar cases. Thus, Plaintiffs request that this Court grant Plaintiffs’ motion in its entirety,

direct that notice be given to all class members, and schedule a final approval hearing.

II. OVERVIEW OF THE LITIGATION

On April 19, 2013, Plaintiff Robert Montgomery filed the original Complaint in this

action in 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 Written Wage Statements (Lab. Code § 226(a)); (5) Failure to

Timely Pay All Final Wages (Lab. Code §§ 201-203); and (6) Unfair Competition (Bus. & Prof.

Code § 17200 et seq.). On May 28, 2013, Plaintiff filed a First Amended Complaint (“FAC”),

which added a claim for penalties under the PAGA.

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On June 14, 2013, pursuant to a stipulation of the parties, this case was ordered

transferred from Alameda County Superior Court to this Court. On August 2, 2013, transfer

was effectuated to this Court, where the case is currently pending. On September 18, 2013, Del

Monte Corporation filed its Answer to the First Amended Complaint in which it denied all

liability, denied the propriety of class treatment, and asserted numerous affirmative defenses.

Plaintiffs eventually filed a Second 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. Plaintiffs plan on

filing, per Stipulation, a Third Amended Complaint the week of November 10, 2014, to add

language that was inadvertently omitted from the SAC regarding alleged off-the-clock work,

including donning and doffing.

A. Summary of Plaintiff’s Claims and Del Monte’s Defenses

1. Failure to Provide Meal and Rest Breaks

Plaintiffs and putative class members are current and former non-exempt employees of

Del Monte who worked primarily in Del Monte’s California canning and distribution centers.

The majority of class members are seasonal employees who work for Del Monte for only 3 or 4

months per year. Plaintiffs assert that Del Monte failed to provide legally sufficient meal periods

and rest periods by (1) failing to maintain California-compliant meal and rest period policies and

(2) by auto-deducting 30 minutes from the majority of class members’ wages for lunch rather

than having them formally clock out for meal periods.

In addition, Plaintiffs assert that they and putative class members were required to doff

and don work-related gear at the beginning and end of their shifts and before and after meal and

rest periods, and that such doffing and donning constitutes “time worked” which was not paid for

and/or caused their meal and rest periods to be shorter than the 30 minutes (meal periods) and 10

minutes (rest periods) mandated by California law.

1 It came to Plaintiffs’ counsel’s attention that Mr. Montgomery filed bankruptcy during the pendency of this action,

and therefore new class representatives were located to take his place.



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For its part, Del Monte contends that its employees are provided with legally compliant

meal and rest periods. Del Monte produced excerpts of declarations from many putative class

members stating that they are provided with at least 35-minute meal periods (more than the 30

minutes required by law) within the first five hours of work, and at least 12-15 minute rest

periods (more than the 10 minutes required by law) for each 4 hour work period. Furthermore,

Del Monte contends that any doffing and donning is done on the clock, not during meal or rest

periods, so putative class members are paid for that time and it does not cut into break time.

Finally, Del Monte asserts that on many shifts, the assembly line completely shuts down for

lunch for more than 30 minutes, before the end of the fifth hour of each shift. Thus, there is no

way for putative class members to perform work during this time. These claims, too, were

supported by multiple declarations from putative class members. Some of the putative class

members whom Plaintiffs’ counsel contacted confirmed Del Monte’s contentions.

2. Failure to Pay Wages

Plaintiffs assert that Del Monte owes wages to them and putative class members for off-

the-clock work, including their time spent doffing and donning work gear during their breaks and

before and after their shifts, and the time auto-deducted for meal periods. Plaintiffs also assert

that putative class members often clocked in before the beginning of their scheduled shift but

were only paid starting at the beginning of the scheduled shift, and they often clocked out after

the end of their scheduled shift but were only paid until the end of their scheduled shift.

Del Monte asserts that putative class members are prohibited from working off-the-clock

and that, in fact, it is impossible for many of them to do so. Del Monte employees generally

work on assembly lines and are unable to start working until the person they are replacing on the

line is finished at the end of their shift. Thus, even if an employee clocks in early, he/she is

unable to start working until the start of his/her shift. Del Monte asserts that because many

employees are seasonal and only see each other for a few months out of the year, they arrive to

work early in order to socialize with each other. They are allowed to clock in several minutes

before their shift, but they do not begin working until the start of their shift. Del Monte produced

excerpts from many declarations supporting these contentions.



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Similarly, Del Monte asserts that at the end of the shift, employees are required to stop

working immediately and allow the next person to relieve them. Indeed, many employees are

scheduled with an “overlap” of up to 30 minutes, which allows the departing shift plenty of time

to leave the assembly line, doff any work gear, and clock out well before the end of the

scheduled shift, and allows the incoming shift plenty of time to don work gear and otherwise get

ready (on-the-clock) before starting on the assembly line. Del Monte produced several excerpts

of declarations from putative class members that confirmed these contentions.

Finally, as mentioned above, Del Monte contends that putative class members are

provided with at least 35-minute meal periods, so when they are auto-deducted only 30 minutes

for meal periods, the workers are actually being overpaid since they are actually relieved of duty

for more than 30 minutes.

3. Del Monte Contends That Doffing/Donning May Not Be Compensable At All

Pursuant to Sandifer v. U.S. Steel and/or the De Minimis Doctrine

Del Monte contends that time spent doffing and donning may not be compensable at all

pursuant to the U.S. Supreme Court’s recent ruling in Sandifer v. U.S. Steel, 134 S. Ct. 870

(2014), which held that union employees’ time spent “changing clothes” (which, the Court

specifically found, includes work gear) may be excluded from “compensable time” by a

collective bargaining agreement or a custom or practice of non-compensation for such activities.

Sandifer at 877-78.

Furthermore, Del Monte contends that any time spent donning and doffing is de minimis,

as many employees testified in declarations that it took less than one minute to don or doff the

work gear. Indeed, many putative class members who spoke with Plaintiffs’ counsel confirmed

that doffing and donning takes only about one minute. c.f. IBP Inc. v. Alvarez, 546 U.S. 21

(2005), Steiner v. Mitchell, 350 U.S. 247 (1956). Although the de minimis doctrine is a creation

of federal common law, it has been applied in some California courts to preclude recovery on

wage claims. See, e.g., Cervantez v. Celestica Corp., 618 F.Supp.2d 1208 (C.D.Cal. 2009).

4. Derivative Claim Under Lab. Code § 203

Plaintiffs assert a derivative claim for “waiting time” penalties under Lab. Code § 203 for

failure to pay final wages upon discharge of employment. Plaintiffs contend that they are entitled



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to these penalties based on their underlying claims for meal periods, rest periods, and failure to

pay wages. Specifically, Del Monte failed to pay all wages to employees at discharge by failing

to pay all meal and rest period premiums and failing to pay for all time worked.

Moreover, because many putative class members are seasonal, Plaintiffs contend that

putative class members are entitled to § 203 penalties for each instance of separation of seasonal

employment. Plaintiffs assert this case is analogous to Smith v. L’Oreal USA, Inc. (2006) 39

Cal.4th 77. In that case, the California Supreme Court held that a model who was promised $500

for a day of work should have been paid at the end of that day, and that the model was entitled to

Lab. Code § 203 “waiting time” penalties because she was not paid for her work until two

months later. Citing public policy and legislative intent, as well as relying on the overall

statutory scheme and legislative history of §§ 201 and 203, the Court concluded that “an

employer effectuates a discharge within the contemplation of sections 201 and 203, not only

when it fires an employee, but also when it releases an employee upon the employee’s

completion of the particular job assignment or time duration for which he or she was hired.”

Accordingly, the Court found employees in both categories must be paid all wages earned

and unpaid immediately upon cessation of employment. Thus, Plaintiffs assert that although

seasonal class members were not “terminated” at the end of each season, the end of each season

nevertheless constitutes a “discharge” under Labor Code §§ 201 and 203.

Del Monte contends putative class members would not be entitled to a § 203 penalty for

the end of each instance of seasonal employment. Del Monte asserts this case is analogous to

Elliot v. Spherion Pacific Work, LLC, 572 F.Supp.2d 1169 (C.D.Cal. 2008), in which the Court

found that “Defendant took no action to formally release Plaintiff and end the employment

relationship each time one of Plaintiff’s temporary assignments ended....at all relevant times,

Defendant and Plaintiff maintained a continuous employer-employee relationship even when

Plaintiff was not engaged in an assignment.” Thus, the court found that the end of each

assignment did not constitute a “discharge” under §§ 201-203.

///



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Del Monte asserts that, like the employer in Elliot, Del Monte did not end its employment

relationship with seasonal putative class members at the end of each seasonal assignment, and

the end of each season thus did not constitute a “discharge” under § 201.

Moreover, Del Monte contends that even if Plaintiffs were successful in proving some of

their underlying claims, they would not prevail in showing the requisite intent for their derivative

claim for penalties under Lab. Code §§ 203 and 226. Specifically, Lab. Code § 203 requires a

plaintiff to show that the employer committed a “willful” violation of the law in withholding

wages. 8 Cal. Code Regs. § 13520 provides that “a good faith dispute that any wages are due

will preclude imposition of waiting time penalties under Section 203.” Del Monte contends that

it has presented several good faith defenses that would preclude a finding of “willfulness” under

Lab. Code § 203; see, e.g., Choate v. Celite Corp. (2013) 215 Cal.App.4th 1460 (reversing award

of § 203 penalties based on good faith defense where underlying wage claim presented issue of

first impression).

5. Derivative Claim Under Lab. Code § 226

Plaintiffs also assert a derivative claim for penalties under Lab. Code § 226 for Del

Monte’s alleged failure to maintain accurate records. Specifically, Plaintiffs contend that Del

Monte failed to include all compensation due to them, and failed to include all hours worked, on

their wage statements as required by § 226.

Defendant contends that, similar to Lab. Code § 203, Lab. Code § 226 requires an

employee to show that the employer committed a “knowing and intentional” violation of the

record-keeping statute. Del Monte asserts that any violation of § 226 that it may have committed

was neither knowing nor intentional, given its good faith defenses to Plaintiffs’ claims, and that

therefore Plaintiffs would not be able to recover penalties under this section.

6. Del Monte Contends §§ 203 and 226 Penalties Not Available After Kirby

Finally, Del Monte contends that penalties under Lab. Code §§ 203 and 226 may not be

available at all after Kirby v. Immoos Fire Protection (2012) 53 Cal.4th 1244. Kirby held that a

cause of action under Lab. Code § 226.7 was a claim for the non-provision of breaks, not for the

nonpayment of “wages.” Some courts have found that after Kirby, penalties under §§ 203 and



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226 are not available for meal or rest period claims. (Compare, Jones v. Spherion Staffing

LLC, 2012 WL 3264081, at *8–9 (C.D.Cal. 2012) (penalties not available) with Bellinghausen v.

Tractor Supply Company, 2014 WL 465907 at *8-9 (penalties available).)

7. Derivative PAGA Penalties

With respect to penalties under the PAGA, these penalties are admittedly discretionary

and the Court could choose to award a very low amount in PAGA penalties or no amount at all.

See, Lab. Code § 2699(e)(2) (the court in its discretion “may award a lesser amount than the

maximum civil penalty amount specified by this part…”) Moreover, 75% of PAGA penalties are

paid to the Labor Workforce Development Agency, with only 25% paid to aggrieved employees.

See, Lab. Code 2699(i). Accordingly, the actual value to putative class members of the PAGA

penalties may be very low.

8. Class Certification

Plaintiffs contend that this case is amenable to class treatment and are confident that, had the

case moved forward, they would have obtained class certification. As explained in detail infra,

the class is readily ascertainable and sufficiently numerous, class members share common

questions of law and fact, Plaintiffs are typical of the class they represent, and Plaintiffs and

their counsel are adequate representatives of the class.

Del Monte contends this case would not be certified since, among other things, its

practices comply with California law, many putative class members signed declarations stating

Del Monte’s practices comply with California law, and Plaintiffs thus will be unable to show a

“common” or “predominant” illegal policy or practice that would support class certification.

Del Monte also relies on the recent California Supreme Court decision in Duran v. U.S.

Bank (2014) 59 Cal.4th 1, which, among other things, limits the ability of plaintiffs to rely on

“sampling” data in certifying class actions and/or in calculating class-wide damages at trial. For

their part, Plaintiffs contend that Duran was a misclassification case and is therefore factually

distinguishable from the present case, and that in any event, because Duran is so new it has yet

to be seen how trial courts and/or appellate courts will interpret and apply Duran to subsequent

wage-and-hour class actions.



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Thus, although Plaintiffs were prepared to litigate the case through class certification

and, eventually, to trial, Plaintiffs also recognized that there were significant risks in going

forward with litigation, both on the merits and in terms of class certification.

B. Mediation and Settlement Discussions

During the litigation the parties engaged in formal and informal discovery and

exchanged information and documents about the claims alleged, including putative class

member contact information, time records for Plaintiffs and putative class members, earnings

data for Plaintiffs and putative class members, and Del Monte’s policies relating to meal and

rest periods, payroll, and time keeping. Setareh Decl. at ¶¶ 6-7. Del Monte’s workers were

subject to various collective bargaining agreements (“CBAs”) during the relevant time period,

so Del Monte also produced copies of the relevant CBAs. Id. In all, Del Monte produced more

than 3,000 pages of documents, plus dozens of electronic spreadsheets that contained tens of

thousands of lines of relevant time records and payroll data Id. Del Monte also produced the

names and contact information of approximately 300 putative class members. Plaintiffs’

counsel sent surveys to the putative class members and contacted interviews with many by

telephone.

The parties agreed to participate in a mediation with Mark Rudy, a highly respected

mediator with extensive experience resolving wage and hour class actions. The mediation took

place on June 24, 2014 in San Francisco. Before mediation the parties each investigated the

claims asserted and prepared detailed mediation briefs. Plaintiff’s investigation included, among

other things: reviewing Del Monte’s and the CBAs’ policies concerning meal periods, rest

periods, donning/doffing work gear, timekeeping, payroll, and other policies; reviewing the tens

of thousands of lines of payroll and time records for Class members; interviewing Plaintiffs and

putative class members to obtain information concerning their relevant work experiences with

Del Monte, including but not limited to their experiences with respect to meal periods, rest

periods, and donning and doffing work gear; and preparing a detailed damages model based on

the information and data obtained from Del Monte and putative class members. Id. at ¶¶ 6-8.

///



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As a result of extensive arm’s length negotiations at the mediation through experienced

counsel with Mr. Rudy’s assistance, as well as a mediator’s proposal from Mr. Rudy, the parties

agreed to the core terms of the Settlement now before this Court. Now that the parties have

finalized the Settlement, Plaintiffs submit it to this Court for its preliminary approval.

III. OVERVIEW OF THE SETTLEMENT

The complete terms of the Settlement are set forth in Exhibit 1 to the Declaration of

Shaun Setareh, filed concurrently herewith. The Settlement provides for a Gross Settlement

Amount (“GSA”) of $7,500,000 on behalf of the below-defined Settlement Class and

Settlement Subclass. (Settlement, ¶ II.A.) The Settlement will be distributed to Class Members

on a claims-made basis. (Settlement, ¶ III.A.)

A. Settlement Class Definitions

The “Class” refers to all non-exempt employees employed by Del Monte in California at

any time from April 19, 2009 through preliminary approval. (Settlement, ¶ I.F.) According to

Del Monte’s records, there are approximately 6,000 Class members. Setareh Decl. ¶ 9.

The “Subclass” refers to all Class members who were employed at any time by Del

Monte on or after April 19, 2010 and are no longer employed as of the date of preliminary

approval. (Settlement, ¶ I.HH.) Since a large percentage of class members are seasonal

workers, a large portion of the Class will be included in the Subclass. Id.

B. Allocation of Settlement Funds

The Net Settlement Amount (“NSA”) is defined as the amount of the GSA remaining

after the following payments are made: (i) up to $2,500,000 as attorneys’ fees to Class Counsel

(one-third of the GSA); (ii) up to $20,000 as actual costs to Class Counsel; (iii) up to $5,000

each as enhancement awards to Plaintiffs Negrete and Philips; (iv) $50,000 to be allocated as

civil penalties under the PAGA; and (v) reasonable claims administration costs to be paid to the

Administrator. (Settlement, ¶¶ I.W. and III.C.1-5.) If less than these amounts are awarded at

final approval, the remainder will be included in the NSA and made available for payment to

Settlement Class members. (Id.) The NSA will be disbursed to Settlement Class Members and

Subclass Members via a claims-made process, as follows:



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1. Class Member Settlement Share Calculation

Ninety-five percent (95%) of the NSA shall be allocated for distribution to all Class

Members. The amount allocated for each individual Class Member will be based on (a) the

individual Class Member’s total number of workweeks during the Class Period (b) divided by

the aggregate number of workweeks of all Class Members during the Class Period (with the

division rounded to four decimal places) (c) multiplied by ninety-five percent (95%) of the value

of the NSA. This portion of the Settlement Share covers all claims by Class Members except the

claim for 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 no withholdings will be made. (Settlement, ¶ III.B.2.)

2. Subclass Member Settlement Share Calculation

Five percent (5%) of the NSA shall be allocated to Subclass Members for payment of

claims for waiting time penalties under Labor Code § 203. The amount allocated to each

individual Subclass Member shall be based on (a) the individual Subclass Member’s total

number of workweeks during the Class Period (b) divided by the aggregate number 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 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.)

3. 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 Period, to all Class Members who submit valid claims.

(Settlement, ¶ III.D.)



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C. Release of Claims

All Class Members who do not timely submit valid requests for exclusion will release all

known and unknown claims that were, or could have been, pled based on the facts alleged in the

Complaint, subject to a waiver of the protections of Civil Code § 1542 with respect to the

claims asserted in this action. (Settlement, ¶ III.G.2.) These claims specifically include claims

under Cal. Labor Code §§ 203, 226, 226.7, 558, PAGA, 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), subject to a

waiver of the protections of Civil Code § 1542. (Id., ¶ III.G.1.)

D. Notice and Claims Procedures

Within twenty-one (21) days after preliminary approval, Del Monte will provide the

Settlement Administrator, Rust Consulting, with a Class List containing the name, last known

mailing address and telephone number, social security number, and number of workweeks of

each Settlement Class member during the relevant time period. (Settlement, ¶ III.F.2.a.)

Within thirty-five (35) days after preliminary approval, the Settlement Administrator

will mail the Class Notice Packets to all identified Class Members via first-class regular U.S.

Mail using the mailing address information provided by Del Monte, unless modified by any

updated address information that the Settlement Administrator obtains in the course of

administration of the Settlement. (Settlement, ¶ III.F.2.b.)

Class Members who have not responded within 45 days after the Settlement

Administrator first mails the Class Notice Packet will be sent a reminder postcard by the

Settlement Administrator. (Settlement, ¶ ¶ III.F.2.c.)

The Settlement Administrator will also take reasonable steps to locate any Settlement

Class Member whose Notice Packet is returned because of an incorrect address. (Settlement, ¶

III.F.2.d.)

To receive a settlement share, Class Members must complete and mail a Claim Form to

the Settlement Administrator no later than sixty (60) days after the Settlement Administrator

first mails the Class Notice Packet. (Settlement, ¶ III.F.3.)



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Class Members who wish to object to any terms of the Settlement (other than the

application for fees and expenses) must do so in writing, in the format prescribed by the

Settlement. Such objection must be filed with the Court and served on Counsel for all Parties

no later than sixty (60) days after the Settlement Administrator first mails the Class Notice

Packet. Class Members who wish to object to the application for fees and expenses must do so

in writing, which must be filed with the Court and served on Counsel for the Parties via certified

mail, return receipt requested, no later than fourteen (14) days prior to the Final Fairness

hearing. (Settlement, ¶ III.F.4.)

Class Members who wish to exclude themselves from the Settlement must mail to the

Settlement Administrator a signed and dated Exclusion Request no later than sixty (60) days

after the Settlement Administrator first mails the Class Notice Packet, in the format described in

the Settlement. (Settlement, ¶ III.F.5.)

For each Settlement Class member, the Claim Form will indicate his or her number of

workweeks, and estimated Settlement Share. (Settlement, Exh. A [Claim Form].) If a Class

Member disputes the number of workweeks and/or employment dates stated for that Class

Member in his or her Claim Form, the Class Member must — no later than sixty (60) days after

the Settlement Administrator first mails the Class Notice — ask the Settlement Administrator to

resolve the matter by returning the Claim Form with a statement of the number of workweeks

during which he or she contends they were employed or their employment dates and include

supporting documentation. The Settlement Administrator will review Del Monte’s records for

the Class Member, and after consultation with Class Counsel, the Class Member, and Del

Monte, the Settlement Administrator will make a determination of the Class Member’s number

of Work Weeks and/or employment dates, which shall be final. (Settlement, ¶ III.F.6.)

Within fourteen (14) days of the Effective Final Settlement Date (defined at ¶ I.S. of the

Settlement), Del Monte will deliver to the Settlement Administrator an amount sufficient to pay

the Court-awarded Class Counsel Fees, Court-awarded Class Representative Payment, the Court-

awarded Class Counsel Litigation Expenses Payments, the Court-awarded Settlement

Administration Costs, the PAGA payment to the LWDA, and payment of Settlement Shares and



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applicable employer withholding taxes for all 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

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 litigation expenses; the employer share of payroll 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.)

Checks not cashed within 120 days of their issuance are void and the Settlement

Administrator will pay any moneys allocated for those checks to the California Industrial

Relations Unclaimed Wages Fund with an identification of the Class Member to whom the check

was sent. (Settlement, ¶ III.F.13.)

Finally, not later than twenty-eight (28) days before the Final Approval hearing, the

Settlement Administrator will make available, on a website accessible by Class Members free of

charge, the following: the Motion for Final Approval and Plaintiffs’ Motion for Attorneys’ Fees

and Litigation Costs. (Settlement, ¶ III.F.2.g.)

IV. ARGUMENT

A. The Class Meets the Requirements for Class Certification for Settlement

Purposes Under California Code of Civil Procedure § 382.

Under Code of Civil Procedure § 382, class certification is warranted so long as there is

“a numerous and ascertainable class with a well-defined community of interest among its

members” and a “class action proceeding is superior to other means for a fair and efficient

adjudication of the litigation.” (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th

319, 326, 332 (“Sav-On”).). “The certification question is ‘essentially a procedural one that does

not ask whether an action is legally or factually meritorious.’” (Id. at 326 [quoting Linder v.

Thrifty Oil Co. (2000) 23 Cal.4th 429, 439-440].). Indeed, the certification question simply asks

whether the theory of recovery advanced by the plaintiff is likely to prove amenable to class

treatment. (E.g., Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1298.). In ruling on



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a certification motion, a trial court’s task is to determine “whether ... the issues which may be

jointly tried, when compared with those requiring separate adjudication, are so numerous or

substantial that the maintenance of a class action would be advantageous to the judicial process

and to the litigants.” (Id.). Thus, “[t]he relevant comparison lies between the costs and benefits

of adjudicating plaintiffs’ claims in a class action and the costs and benefits of proceeding by

numerous separate actions ....” (Id.).

“[I]t is also well established that trial courts should use different standards to determine

the propriety of a settlement class, as opposed to a litigation class certification. Specifically, a

lesser standard of scrutiny is used for settlement cases.” (Global Minerals & Metals Corp. v.

Superior Court (2003) 113 Cal.App.4th 836, 859 [citing Dunk v. Ford Motor Co. (1996) 48

Cal.App.4th 1794, 1807 n.l9 (“Dunk”)].) As the court noted in Dunk, although certification

requirements are intended “to protect the interests of the non-representative class members,”

that concern is “protected by the trial court’s fairness review of the settlement.” (Id.)

Indeed, numerous courts have certified settlement classes. For example, In re Drexel

Burnham Lambert Group, Inc., 960 F.2d 285 (2d Cir. 1992), cert. dismissed, 506 U.S. 1088, 122

L. Ed. 497, 113 S. Ct 1070 (1993), the parties entered into a tentative settlement before a class

was certified. After a hearing, the "district court issued an order certifying the class and

approving the settlement agreement." Id. at 289. See also, Alaniz v. California Processors, Inc.,

73 F.R.D. 269, 278 (N.D.Cal. 1976) ("the use of the tentative settlement class procedure was

appropriate in this case"), aff’d, 572 F.2d 657 (9th Cir.), cert. denied, 439 U.S. 837 (1978).

Certification of a settlement class is a regular feature of class action litigation and an approved

procedure which ought to be followed in this case. See Newberg on Class Actions (3d ed. 1991)

§ 11.27, pp. 11-40 to 11-56; and Manual for Complex Litigation, 2d (1993) § 30.45.

As shown below, this Settlement and the Settlement Class easily meet all of the

requirements for certification for settlement purposes.

1. Objectively Ascertainable and Sufficiently Numerous Class

A class is ascertainable when it may be readily identified without unreasonable expense

or time by reference to official records. (Rose v. City of Hayward (1981) 126 Cal.App.3d 926,



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932). No set number of class members is required to maintain a class action (Hebbard v.

Colgrove (1972) 28 Cal.App.3d 1017, 1030), and the California Supreme Court has upheld a

class of as few as ten members (Bowles v. Super. Ct. (Nickel, Jr.) (1955) 44 Cal.2d 574, 577-81).

Here, the Settlement Class has approximately 6,000 members, all of whom may be identified

solely by reference to Defendant’s company records which identifies all of the non-exempt

employees who worked for Del Monte in California during the statutory period. (Setareh Decl.

¶ 9.) Thus, the Settlement Class is not only ascertainable, but also sufficiently numerous.

2. Predominance of Common Questions

A question of law or fact is common to the members of a class if it may be resolved

through common proof. (See Jaimez, supra, 181 Cal.App.4th at 1305). As for predominance, it

“is a comparative concept, and ‘the necessity for class members to individually establish

eligibility and damages does not mean individual fact questions predominate.’” (Sav-on, supra,

34 Cal.4th at 334 (quoting Reyes v. San Diego County Bd. of Supervisors (1979) 196 Cal.App.3d

1263, 1278)). Thus, “[i]ndividual issues do not render class certification inappropriate so long as

such issues may effectively be managed.” Id. This is especially so where the key difference

between class members solely concerns their respective amounts of damages. (See id.). As a

general rule, if Defendant' s liability can be determined by facts common to all members, a class

will be certified even if thee members must individually prove their damages. See Hicks v.

Kaufinan & Broad Home Corp. (2001) 89 Cal.App.4th 908, 916. It is not necessary that each

Class Member's claim be identical. See B. W.l. Custom Kitchen v. Owens-Illinois, (1981) 191

Cal.App.3d 1341, 1354. As explained below, the Settlement Class meets these requirements.

Plaintiffs contend that by virtue of having worked in hourly positions for the same

employer in California during the same time period, the members of the Settlement Class share

claims that give rise to common questions of law and fact, including, but not limited to: (i)

whether Del Monte maintained a policy or practice of not providing employees with legally

compliant meal and rest breaks; (ii) whether class members’ meal and/or rest breaks were non-

compliant; (iii) whether Del Monte failed to pay minimum wages and/or overtime pay when it

failed to pay employees for donning and doffing work gear or other off-the-clock work; (iv)



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whether Del Monte failed to pay minimum wages and/or overtime pay for pre- or post-shift

work; (v) whether Del Monte failed to timely pay final wage payments to Subclass Members at

separation of employment because they had an underlying meal break, rest break, minimum

wage and/or overtime claim; (vi) whether as a result of these policies or practices, Del Monte

provided Class Members with inaccurate wage statements; and (vii) whether Del Monte is liable

to Class Members for waiting time penalties under Labor Code § 203. (Setareh Decl. ¶¶ 11, 17).

Under Plaintiffs’ theories of liability, because the answers to these and related common

questions will resolve Del Monte’s liability to Settlement Class Members with respect to all

issues, these questions predominate over any remaining and ancillary questions that may be

unique to individual Settlement Class Members. Id. In view of these standards, this Court

should certify the Settlement Class for purposes of settlement only under Code of Civil

Procedure § 382 and Rule of Court 3.769(c).

3. Plaintiffs Are Typical and Representative of the Settlement Class

Typicality “requires a showing that the class representative has claims or defenses typical

of the class.” (See e.g., Fireside Bank v. Super. Ct. (Gonzalez) (2007) 40 Cal.4th 1069, 1090).

This focuses on “the nature of the claim or defense of the class representative, and not to the

specific facts from which it arose or the relief sought.” (Hanon v. Dataproducts Corp. (9th Cir.

1992) 976 F.2d 497, 508 (internal citations and quotations omitted)). “The test of typicality ‘is

whether other members have the same or similar injury, whether the action is based on conduct

which is not unique to the named plaintiffs, and whether other class members have been injured

by the same course of conduct.’” Id. (quoting Schwartz v. Harp (C.D. Cal. 1985) 108 F.R.D. 279,

282); accord Classen v. Weller (1983) 145 Cal.App.3d 27, 46 (“it has never been the law in

California that the class representative must have identical interest with the class members.”).

Under these standards, Plaintiffs are typical of the Class. Like Class Members, Plaintiffs

worked in hourly positions for Del Monte in California during the relevant time period, were

subject to the same wage and hour policies and practices at issue in this lawsuit, and thus share

the same claims as a result. Moreover, both Plaintiffs are no longer employed by Del Monte and

are therefore adequate to represent the Subclass of former employees. (Setareh Decl. ¶ 12).



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Also, the potential defenses that Del Monte asserts to Plaintiffs’ claims are the same

potential defenses that it asserts to absent Settlement Class Members’ claims. Id. Accordingly,

Plaintiffs are typical of the Class Members they seek to represent.

Representative plaintiffs need not have all claims or identical interests with class

members; they need only have claims that are “typical of the class.” See Classen v. Weller

(1983) 145 Cal.App. 3d 27, 46. Representative plaintiffs need not suffer all of the exact same

damages as every class member. B.W.I. Custom Kitchen v. Owens-Illinois, Inc. (1987) 191

Cal.App.3d 1341, 1347. They simply need to have sufficient commonality of interest to give

them an incentive to prove the facts needed to prove class claims. Id. At 1349-50. Moreover,

Courts have determined that former employees were adequate class representatives in actions

seeking damages on behalf of both former and current employees. For example, in Glass v. UBS

Financial Services, Inc., 26 2007 WL 221862 (ND. Cal. 2007), affirmed 331 Fed. Appx. 452

(9th Cir. 2009), the District Court approved, and the Ninth Circuit affirmed, a class action

settlement in a wage and hour case where, as here, the class representatives were former

employees seeking damages on behalf of both former and current employees beyond the date of

their employment. The Court in Glass specifically rejected the proposition that former

employees could not be adequate representatives for current employees:

A class action may be maintained only if ‘the representative parties will fairly and

adequately protect the interest of the class.’ Fed. R. Civ. P. 23(a)(4). The present

settlement aims to provide compensation for unlawful practices occurring during

the class period. For that period, ‘both the former and current employees are

equally interested in obtaining compensation for the assuredly unlawful practices

set forth in the complaint.’ Therefore, the district court did not abuse its

discretion in finding that the class-representatives adequately represented the

interests of the class.” Id. at 455; See Cummings v. Connell, 316 F.3d 886, 896

(9th Cir. 2003)(“this circuit does not favor denial of class certification on the basis

of speculative conflicts”).

4. Plaintiffs and Their Counsel Will Adequately Represent the Class

The adequacy requirement is met where the named plaintiffs are represented by counsel

qualified to conduct the litigation and the plaintiffs’ interest in the litigation is not antagonistic to

the class’s interests. (McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 450-51.). In other

words, where the named plaintiffs have adequate counsel, the plaintiffs may represent the entire



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class absent any disabling conflicts of interest that might hinder the named plaintiffs’ ability to

represent the class. Id. In this case, Plaintiffs have no conflicts of interest with absent Settlement

Class members and have agreed to place the class’s interests above their own. Setareh Decl. at ¶¶

12-13. Moreover, Plaintiffs’ counsel, the Setareh Law Group, are experienced in wage and hour

class action litigation and have no conflicts of interest with absent Settlement Class Members.

(Id. at ¶¶ 13-15). Thus, this Court should appoint Plaintiffs as Class Representatives for the

Settlement Class and appoint their counsel as Class Counsel for the Settlement Class.

As the Court explained in Global Minerals & Metals Corp. v. Superior Court (2003) 113

Cal.App.4th 836, 851, the inquiry into the adequacy of a class representative is intended to

uncover any conflicts between the plaintiff and the class he or she seeks to represent. Where

such a conflict exists, and where it goes to “the very subject matter of the litigation,” the

individual cannot serve as a class representative. Id. (internal citations omitted). Here,

Plaintiffs have the same motivation as Class Members and Subclass Members. Moreover, a class

representative has an obligation to vigorously and tenaciously protect the interests of the class

members. Id. at 851. Plaintiffs have a financial incentive to do so because their interests are

aligned with those of the class.

B. This Court Should Preliminarily Approve the Settlement Because It Is a

Fair, Adequate, and Reasonable Compromise of Disputed Wage Claims

California Civil Code Section 178l(f), modeled on Federal Rules of Civil Procedure,

Rule 23, provides: “A class action shall not be dismissed, settled, or compromised without the

approval of the Court, and notice of the proposed dismissal, settlement or compromise shall be

given as the Court directs ... " Both Civil Code Section 178l(f) and Fed. R. Civ. P. 23(e) have

been expressly authorized for use in all California class action proceedings by the California

Supreme Court. Vasquez v. Superior Court, 4 Cal. 3d 800, 821(1971); LaSala v. American

Savings &Loan Association, 5 Cal. 3d 864 (1971). Additionally, Rules of Court, Rule 3.769 sets

forth the procedures to be followed for settlement of class actions. Accordingly, both federal and

California authorities are referenced in this brief. California Rule of Court 3.769 describes three

distinct steps for approval of class action settlements by California courts:



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1. Preliminary approval of the proposed settlement after submission of a

written motion for preliminary approval, the proposed Class settlement,

and the proposed Class Notice;

2. Providing notice of the settlement to affected Class members; and

3. A final settlement approval hearing at which Class members may be heard

regarding the settlement, and at which evidence and argument concerning

the fairness, adequacy, and reasonableness of the settlement is presented.

The decision to approve or reject a proposed settlement is committed to the Court’s

discretion. Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-35. Accordingly, a

court’s decision to approve a class action settlement may be reversed only upon a strong

showing of “clear abuse of discretion.” (Wershba at p. 235 (citing 7-Eleven Owners for Fair

Franchising v. Southland Corp. (2000) 85 Cal. App. 4th 1135, 1145); Dunk, supra, 48

Cal.App.4th at 1802).

As the Manual for Complex Litigation (Fourth) § 21.63 (2006) (“Manual”) explains:

If the preliminary evaluation of the proposed settlement does not disclose grounds to doubt its fairness or other serious deficiencies, such as unduly preferential treatment of class representatives or of segments of the class, or excessive compensation for attorneys, and appears to fall within the range of possible approval, the court should direct that notice … be given to the class members of a formal fairness hearing, at which arguments and evidence may be presented in support of and in opposition to the settlement.

(See also Newberg § 11.25 [quoting the Manual].)

1. The Settlement Was Reached Via Arm’s Length Negotiations of

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

A settlement is presumptively fair where it is reached through arms’ length bargaining,

based on sufficient discovery and investigation to allow counsel and the court to act intelligently,

counsel is experienced in similar litigation, and the percentage of objectors is small.2 (Dunk,

supra, 48 Cal.App.4th at 1802). Courts act within their discretion in approving settlements,

2 Because the fourth prerequisite cannot be addressed until the final approval hearing, only the first three are

relevant at this stage of the approval process.



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which are fair, not collusive, and take into account “all the normal perils of litigation as well as

the additional uncertainties inherent in complex class actions." In re Beef Industry Antitrust

Litigation, 607 F. 2d 167, 179 (5th Cir. 1979) cert. den. sub nom, Iowa Beef Processors, Inc. v.

Meat Price Investigators Ass'n 452 U.S. 905 (1981). Where a settlement is reached on terms

agreeable to all parties, a court should disapprove of the settlement "only with considerable

circumspection." Jamison v. Butcher & Sherrerd, 68 F.R.D. 479,481 (E. D. Pa. 1975).

In deciding whether to approve a proposed settlement, a trial court has broad powers to

determine if the proposed settlement is fair under the circumstances of the case. (Mallick v.

Superior Court (1979) 89 Cal.App.3d 434, 438.). In exercising these powers, the overriding

concern is to ensure that a proposed settlement is “fair, adequate, and reasonable.” (Dunk, 48

Cal.App.4th at 1801 [internal quotations omitted].).

Relevant factors for that determination, include, but are not limited to:

[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.

(Id.). These factors require balancing, are non-exhaustive, and, as such, trial courts should tailor

the factors considered to each case and give due regard to “what is otherwise a private

consensual agreement between the parties.” (Id.).

“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, supra, 91 Cal.App.4th at 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.

Information is sufficient where it allows the parties and the court to form “an understanding of



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the amount that is in controversy and the realistic range of outcomes of the litigation.” (Clark v.

Am. Residential Servs. LLC (2009) 175 Cal.App.4th 785, 801.).

Here, the Settlement resulted from thorough, arm’s length negotiations between

experienced counsel, with the assistance of a highly regarded mediator, after sufficient

discovery was exchanged to assess the relative strengths and weaknesses of their respective

cases and Del Monte’s estimated exposure. (Setareh Decl. ¶¶ 6-8, 16). Plaintiffs’ counsel and

Del Monte’s counsel are experienced in handling class action wage and hour litigation and have

represented many classes and clients in similar class actions. Although the parties were willing

to explore the potential for settlement, each side also was fully committed and prepared to

litigate the case through trial and appeal if the Settlement had not been reached. In reaching the

Settlement, counsel on both sides relied on their substantial litigation experience in similar

actions, and conducted analysis of the legal and factual issues presented in this case. As

explained above, Del Monte contends vigorously its ability to win on the merits of the case and

defeat class certification. Conversely, Plaintiffs believe that they have a strong chance of

certifying a class for some or all of their claims and to prevail at trial. Because the parties

vigorously disagreed over the scope of Del Monte’s potential exposure to the alleged claims, the

merits of the claims themselves, and the likelihood of class certification, it took Mr. Rudy’s

assistance and mediator’s proposal to break the deadlock and arrive at a resolution after a full

day of mediation.

a) Del Monte’s estimated potential liability exposure

Pursuant to an analysis of documents obtained during discovery and in anticipation of

mediation, Plaintiffs estimate Del Monte’s total potential liability exposure at between

approximately $50,277,196 to $54,727,196. This is based on the following calculations:

Missed Meal and Rest Periods: As stated above, many putative class members told

Plaintiffs’ counsel that they always received legally compliant meal and rest periods, or that they

only missed meal or rest periods on an occasional basis—once in a while their meal periods were

after five hours, or just a few minutes less than the 30 minutes required by law. Similalry, their

rest periods were only occasionally late and/or less than the 10 minutes prescribed by law.



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Accordingly, for calculating potential liability, Plaintiffs’ counsel assumed that each class

member was not provided a legally sufficient meal or was not provided a legally sufficient rest

period, once per week. Thus, pursuant to Lab. Code § 226.7, each class member would be

entitled to one hour of pay at his or her regular rate of pay for each week of employment (one

hour for a missed meal period or one hour for a missed rest period). Based on records produced

by Del Monte pursuant to the mediation privilege, there were a total of approximately 371,700

aggregate workweeks during the relevant time period, and putative class members earned an

average hourly rate of $17.95. Thus, Del Monte’s potential liability exposure under Lab. Code §

226.7 is calculated as: $17.95 x 371,700 = $6,672,015. Setareh Decl. ¶ 18a.

Wages for Auto-Deduct and/or Doffing/Donning During Breaks: As noted above,

putative class members told Plaintiff’s counsel – and declared in declarations under penalty of

perjury – that doffing and donning work gear took about one minute. Thus, in the aggregate,

about 6 minutes per day were spent doffing and donning during breaks per shift (2 minutes each

during one meal break and two rest breaks). Assuming a violation rate of once per week (as

explained above), Plaintiffs estimated Del Monte’s potential liability based upon 6 minutes of

unpaid doffing/donning time per week: 371,700 workweeks x $17.95 x 0.1 (six minutes equals

one-tenth of one hour) = $667,201. Setareh Decl. ¶ 18b.

In addition, for many class members, 30 minutes were auto-deducted from wages for a

meal period, regardless of whether the employee clocked out for lunch. As stated above,

Plaintiffs’ counsel estimates potential liability of one legally insufficient meal period per week,

and many of those violations were simply for a late meal period (where a full 30 minute-meal

period was provided) or a meal period that was only a few minutes less than the 30 minutes

required by law (e.g. 25-28 minutes). Thus, as with the doffing/donning, Plaintiffs estimated

approximately 6 minutes of unpaid time per weekly violation. Based on time records produced

by Del Monte pursuant to the mediation privilege, there were about 371,000 aggregate

workweeks in which auto-deduct was used. Thus, Del Monte’s potential liability for unpaid

wages for auto-deduct is calculated as: 371,000 workweeks x $17.95 x 0.1 = $665,945. Setareh

Decl., ¶ 18c.



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Overtime Wages for Pre- and Post-Shift Unpaid On-the-Clock Work: As stated above,

Plaintiffs putative class members would often clock-in before the beginning of their shift, and/or

clock out after the end of the shift, but would only be paid for their scheduled shift. Thus,

Plaintiffs contend, putative class members are owed overtime wages for this unpaid on-the-clock

time. Based on records produced by Del Monte pursuant to the mediation privilege, most of this

unpaid on-the-clock time resulted from putative class members clocking in before the start of the

shift. As also stated above, many putative class members testified in written declarations

(excerpts of which were produced by Del Monte) and told Plaintiffs’ counsel in interviews that

most of this pre-shift time was spent socializing with other workers pre-shift. Only a small

portion, if any, of the unpaid on-the-clock time was actual work time.

For purposes of calculating potential liability for this claim, Plaintiffs’ counsel first

analyzed the time records produced by Del Monte and compared them with the pay records

produced by Del Monte, and calculated the difference in hours paid versus the hours on-the-

clock during the relevant time period. This came to approximately 491,000 hours. Then, because

only a small portion of this time was spent actually working, the total hours of unpaid on-the-

clock time was multiplied by 0.2, coming to 98,200 hours. Finally, this number was multiplied

by ($17.95 x 1.5), to reflect that the time should have been paid at time-and-a-half (overtime).

The total potential liability came to $2,644,035. Setareh Decl. ¶ 18d.

Penalties under Lab. Code §§ 203 and 226: Because a majority of putative class members

are seasonal employees, a majority of class members will be eligible for Lab. Code § 203

penalties. Using an estimate of 3,500 former employees, estimated Lab. Code § 203 penalties

(for “willful” failure to pay final wages) equal $15,078,000, as follows: 3,500 former employees

x 8 hours/day x $17.95/hour x a maximum of 30 days. Estimated maximum Lab. Code § 226

penalties (for “knowing and intentional” violation of wage statement statute) equal $24,000,000

($4,000 maximum penalty under § 226 x 6,000 class members), which yields a total of

$39,078,000 in Lab. Code §§ 203 and 226 penalties. Setareh Decl. at ¶ 18e.

PAGA penalties: PAGA penalties are discretionary. See, Lab. Code § 2699(e)(2) (the

court in its discretion “may award a lesser amount than the maximum civil penalty amount



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specified by this part…”). The Court could decide to award little to no PAGA penalties, or it

could award a substantial amount. For purposes of settlement negotiations, Plaintiffs estimate

between $500,000 and $5,000,000 in potential PAGA penalties. Id. at ¶ 18f.

Thus, Plaintiffs estimated Del Monte’s potential liability exposure ranged from

approximately $50,277,196 to $54,727,196. Defendants vigorously contested this and asserted

that class certification was unlikely.

b) Risks in Going Forward with Litigation

Notwithstanding the raw monetary amount of the potential exposure, there were risks

that continued litigation would entail that make the compromise amount fair, adequate, and

reasonable. These risks include, but are not limited to: (i) the risk that the Court might

conclude, outside the context of a settlement class, that individual questions predominate over

common questions as to liability and/or damages issues; (ii) the risk that potential differences

between the job sites where different class members worked, and/or the differences in each

employee’s experience with regard to meal and rest periods, donning and doffing, and pre- or

post-shift activities could cause class certification to be denied and/or narrow the scope of any

certified class; (iii) the risk that the Court could find that Del Monte provided class members

with legally sufficient meal and rest periods, and/or that class members were not required to

perform off-the-clock work or unpaid on-the-clock work, thus precluding any underlying

recovery for Plaintiff or the class; (iv) the risk that good faith disputes as to the viability of the

underlying claims in this case could preclude any penalty awards under California Labor Code

§§ 203 and 226, which require a “willful” violation or a “knowing and intentional” violation,

respectively (see, e.g., 8 Cal. Code Regs. § 13520 [“a good faith dispute that any wages are due

will preclude imposition of waiting time penalties under Section 203]; Choate v. Celite Corp.

(2013) 215 Cal.App.4th 1460 [reversing award of § 203 penalties based on good faith defense

where underlying wage claim presented issue of first impression]); (v) the risk that Del Monte

would appeal if Plaintiffs prevail, further delaying payments to the class; (vi) the risk that the

Court would award little or no PAGA penalties. [Setareh Decl., ¶¶ 19-20].

While these risks are far from exhaustive, their magnitude shows the Settlement



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Agreement is a fair, adequate, and reasonable compromise in view of them. Id.

"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, 91 Cal.App.4th at p. 250.) Accordingly, because

settlements inherently involve comprise, even one that provides for substantially narrower relief

than would likely be obtained if the suit were successfully litigated can be reasonable given that

“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 & Stewardesses

Ass’n, Local 550 v. American Airlines, Inc. (7th Cir. 1972) 455 F.2d 101, 109).

Class Counsel is also of the opinion that the settlement represents an excellent bargain

for the class, given the inherent risks, hazards, and expenses of carrying the case through trial.

As the Central District has explained, this weighs strongly in favor of approving the settlement.

See, Rodriguez v. West Publ. Corp., 2007 WL 2827379 at *9 (C.D. Cal. 2007) (explaining that

“the trial court is entitled to, and should, rely upon the judgment of experienced counsel for the

parties”) (aff’d in relevant part at 563 F.3d 948 (9th Cir. 2009)). Thus, in light of these

considerable risks, Plaintiff has achieved a fair settlement that reflects a meaningful recovery on

behalf of class members that merits this Court’s preliminary approval. See, In re Cendant Corp.,

Derivative Action Litig., 232 F.Supp.2d 327 (D. N.J. 2002) (approving settlement that provided

only 2% recovery based on estimated liability exposure).

Accordingly, the Agreement represented a compromise of disputed wage and hour claims

based solely on penalties allegedly owed to Plaintiff and class members. Although Plaintiffs are

confident that they would have prevailed had litigation continued through class certification and,

ultimately, trial, there were risks, delays, and uncertainties associated with continued litigation,

and Plaintiffs obtained an excellent result for class members in view of those considerations.

2. The Proposed Method for Dividing the Net Settlement Fund Among

Settlement Class Members Is Fair, Adequate, and Reasonable

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 Net Settlement Amount between all



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Class Members based on that 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 distributed in the same manner, except that it will

only be distributed among members of the Subclass, which is comprised solely of former non-

exempt employees whose employment ended at any time between April 19, 2010 and

preliminary approval. 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 sub-class comprised of former

employees was allocated a portion of the NSA especially to compensate them for Lab. Code §

203 penalties. (Id. at ¶ III.B.2.)

The above proposed method is fair and reasonable because each Class Member’s actual

potential damages varies 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.

3. The Proposed Awards of Attorneys’ Fees and Costs Are Fair,

Adequate, and Reasonable and Should Be Preliminarily Approved.

It is well settled that “the primary basis of the fee award remains the percentage

method,” Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1050 (9th Cir.2002). “Empirical studies

show that, regardless whether the percentage method or the lodestar method is used, fee awards

in class actions average around one-third of the recovery.” (Chavez v. Netflix, Inc. (2008) 162

Cal.App.4th 43, 47 fn. 11 (citations omitted). This is also consistent with Class Counsel’s

experience in these types of cases. (Setareh Decl., ¶ 25). Here, Class Counsel intends to request

attorneys’ fees of up to $2,500,000 (1/3 of the Settlement Fund) and their actual costs of up to

$20,000. (Settlement, ¶ 70). In view of Class Counsel’s efforts and risks in pursuing this case,

and the expenses incurred in vigorously litigating these claims, these amounts are well within

the range of reasonableness (and are even at or below below the average in class actions) and



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thus warrant preliminary approval. (Setareh Decl., ¶ 25). In any event, any Class Member who

feels that the attorneys’ fees or costs awards are unfair will have an opportunity to object at the

final fairness hearing.

4. The Proposed Service Payments to Plaintiffs Are Also Fair,


Courts routinely approve service payments to compensate named plaintiffs for the

services they provide and the risks they incur during class action litigation, often in much higher

amounts than that sought here. (See, e.g., Bell v. Farmers Ins. Exchange (2004) 115

Cal.App.4th 715, 726 [upholding “service payments” to named plaintiffs for their efforts in

bringing the case]; Van Vranken v. Atlantic Richfield Co. (N.D.Cal. 1995) 901 F. Supp. 294,

300 [approving $50,000 enhancement award].). Here, the Settlement provides that Plaintiffs

may seek a service payment of up to $5,000 each from the GSA, which amounts to .067% of the

GSA for each Plaintiff. (Settlement, ¶ III.C.1.) This amount is entirely reasonable given

Plaintiffs’ efforts in this case and the risks they undertook on behalf of the Class. Plaintiffs

assisted their counsel on several occasions to, among other things, assist them in identifying the

claims asserted. (Setareh Decl., ¶ 26). Plaintiffs also participated in mediation and carefully

reviewed the Settlement as well as the initial MOU. (Setareh Decl., ¶ 26). Finally, Plaintiffs

faced the possibility of worsened career prospects from having sued a former employer in a

wage and hour class action. (Setareh Decl., ¶ 26). Accordingly, these modest service payments

to Plaintiffs are fair, reasonable, appropriate, and justified as part of the overall Settlement.

5. The Proposed Payment to the Claims Administrator is Fair,


In deciding whether to approve a proposed settlement, a trial court has broad powers to

determine if the proposed settlement is fair under the circumstances of the case. (Mallick, supra,

89 Cal.App.3d at 438.). In exercising these powers, the overriding concern is to ensure that a

proposed settlement is “fair, adequate, and reasonable.” (Dunk, 48 Cal.App.4th at 1801 [internal

quotations omitted].). Rust Consulting estimates that to perform the services set forth in the

Settlement Agreement its costs will be approximately $42,632. In Counsel’s experience as

plaintiffs’ counsel in similar wage and hour class actions with a similar number of employees,



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$42,632 is a fair, adequate and reasonable amount for administration fees, and should be

preliminarily approved. (Setareh Decl., ¶ 25).

C. The Proposed Notice and Claims Administration Plan Complies with Rule

of Court 3.66(e) and Should Be Approved Because It Is Reasonably

Calculated to Give Actual Notice to Settlement Class Members and

Sufficient Time to Exercise Their Rights.

In determining the manner of the notice, the court must consider: the interests of the

class; the type of relief requested; the stake of the individual class members; the cost of

notifying class members; the resources of the parties; the possible prejudice to class members

who do not receive notice; and the res judicata effect on class members. (C.R.C. Rule 3.766(e).)

The parties request that this Court approve the proposed plans for giving notice to the

class and administering the Settlement. The standard for determining the adequacy of notice is

whether the notice has “a reasonable chance of reaching a substantial percentage of the class

members.” (Cartt v. Superior Court (1975) 50 Cal.App.3d 960, 974.). The notice process is set

forth in the Settlement. (Settlement, ¶¶ III.F.2-6.).

For adjudication of class claims “for money damages or similar relief at law, notice sent

by first class mail to the last known address of each member of the plaintiff class is sufficient.”

(Phillips Petroleum Co. v. Shutts, supra, 472 U.S. 797, 811 (1985)). Here, this process includes

multiple measures to ensure that as many Settlement Class Members as practicable receive

actual notice of the Settlement and have sufficient time to exercise their rights. (Settlement,

¶¶ III.F.2-6.) Therefore, the proposed notice plan, calling for first-class mailed notice to all

Settlement Class Members, certainly meets the constitutional standards and should be approved.

(Phillips, 472 U.S.at 811-812.).

D. The Proposed Class Notice Complies with Rule 3.766(d) and (e) and Should

Be Approved Because It Clearly and Concisely Explains All Pertinent

Information About the Settlement to Class Members and Enables Them to

Intelligently Exercise Their Rights.

Rule 3.766(d) provides that the Court must approve class notice. If class members are

given the right to exclude themselves—which the parties agree is appropriate—the notice must

include: (1) a brief explanation of the case, including the basic contentions or denials of the

parties; (2) a statement that the Court will exclude the members from the Class, if the member

so requests by a specific date; (3) a procedure for the member to follow in requesting exclusion



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from the Class; (4) a statement that the judgment, whether favorable or not, will bind all

members who do not request exclusion; and (5) a statement that any member who does not

request exclusion may, if the member so desires, enter an appearance through counsel.

Whether notice is adequate is determined by whether the notice has a reasonable chance

of reaching a substantial percentage of the class members. Wershba v. Apple Computer, Inc., 91

Cal.App.4th 224, 251 (2001) (citation omitted). The purpose of the notice in class settlement

context is to give Class Members sufficient information to decide whether they should accept

the benefits offered, opt out and pursue their own remedies, or object to the settlement. (Id.).

Here, the Class Notice (Settlement, Exh. B) provides Class Members with all pertinent

information that they need to fully evaluate their options and exercise their rights under the

Settlement. It clearly and concisely explains, among other things: (1) what the Settlement is

about; (2) who is a Class Member; (3) how to submit a Claim Form (Settlement, Exh. A); (4)

how Class Counsel will be paid; (5) how to receive an Individual Settlement Payment; (6) how

to request exclusion from the Class using the Request for Exclusion form (Settlement, Exh. C);

(7) how to object to the Settlement; (8) how the Settlement will be allocated; (9) how Individual

Settlement Payments to Class Members will be calculated; (10) the scope of the Released

Claims; (11) information to calculate the individual Class Member’s estimated Individual

Settlement Payment; and (12) a statement that the judgment, whether favorable or not, will bind

all members who do not request exclusion. Accordingly, the Class Notice, the Claim Form, and

the Request for Exclusion should be approved because they describe the Settlement with

sufficient clarity and specificity to explain to Settlement Class Members what this case is about,

their rights under the Settlement, and how to exercise those rights.

E. The Court Should Enjoin Plaintiffs and All Class Members From Filing or

Prosecuting any Claims, Suits or Administrative Proceedings Regarding Claims

Released by the Settlement.

The Court has authority to enjoin Plaintiffs and all Class members from filing or

prosecuting any claims, suits or administrative proceedings (including filing claims with the

California Division of Labor Standards Enforcement) regarding claims released by the

Settlement unless and until such Class Members have filed valid Request for Exclusion forms

with the parties’ counsel and the time for filing claims has elapsed. Under both California and

federal law, res judicata bars a subsequent suit if the same cause of action has been previously

. i JL ..

CQ ... "PJ'1T . .. £. .. .. L

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Shaun Setareh (SBN 204514) · [email protected]

Tuvia Korobkin (SBN 268066) tuvia@setarehlaw .com

Neil Larsen (SBN 276490) neil@setarehlaw .com

SETAREH LAW GROUP 9454 Wilshire Boulevard, Ste: 907 Beverly Hills, California 90212 Tel: (31 0) 888-7771 Fax: (310) 888-0109

CONFORMED COPY ORIGINAL FILED ON

NOV 1 0 2014

7 · Attorneys for Plaintiffs,

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ROBERT MONTGOMERY, ARACELI NEGRETE and CAROL PHILIPS

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF KINGS (UNLIMITED JURISDICTION)

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 co1poration; and DOES l-50, inclusive,

Defendants.

Case No. 13 C 0204

UECLARA TION OF SHAUN SET AREH IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Heari11g In (ormation BY FA Date: December4, 2014 Time: 9:00a.m. Department: 4 Judge: Hon. James T. LaPotte

DECLARATION OF SHAUN SETAlUlH lN SUPPORT Ol' MOTION J'OR I'RELIMlNAllY APPROV AI. OF CLASS ACTION SETTLEMENT

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DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1

DECLARATION OF SHAUN SETAREH

I, SHAUN SETAREH, declare as follows:

1. I am an attorney duly licensed to practice law in the State of California, and an attorney

of record for plaintiffs Robert Montgomery (“Montgomery”), Araceli Negrete (“Negrete”), and Carol

Philips (“Philips”) (collectively, “Plainitffs”) in this action against Big Heart Pet Brands (“BHPB”)

(formerly known as Del Monte Corporation and the seller of certain assets to Del Monte Foods, Inc.)

and Del Monte Foods, Inc. (“DMFI”). BHPB and DMFI will be collectively referred to herein as “Del

Monte.”

2. Except for those matters stated on information and belief, which I am informed and

believe to be 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 under oath.

3. Attached hereto as Exhibit 1 is a true and correct copy of the Settlement Agreement for

Class Action (hereafter “Settlement” or “Settlement Agreement”).

4. On April 19, 2013, Plaintiff Robert Montgomery filed the original Complaint in this

action in 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

Written Wage Statements (Lab. Code § 226(a)); (5) Failure to Timely Pay All Final Wages (Lab. Code

§§ 201-203); and (6) Unfair Competition (Bus. & Prof. Code § 17200 et seq.). On May 28, 2013,

Montgomery filed a First Amended Complaint, which added a claim for penalties under the PAGA.

5. On June 14, 2013, pursuant to a stipulation of the parties, this case was ordered

transferred from Alameda County Superior Court to this Court. On August 2, 2013, transfer was

effectuated to this Court, where the case is currently pending. On September 18, 2013, Del Monte filed

its Answer to the First Amended Complaint in which it denied all liability, denied the propriety of class

treatment, and asserted numerous affirmative defenses. Plaintiffs eventually filed a Second 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

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representatives1, and added Del Monte Foods, Inc. as a named defendant. Del Monte answered on

October 22, 2014. The parties plan on filing a Stipulation and Order to file the Third Amended

Complaint the week of November 10, 2014, further clarifying some of the allegations in the Complaint.

6. During the course of this case, the parties completed substantial and detailed formal and

informal discovery. This discovery included, but was not limited to, exchanging information and

documents about the claims alleged, including putative class member contact information, time records

for Plaintiffs and putative class members, earnings data for Plaintiffs and putative class members, and

Del Monte’s policies relating to meal and rest periods, payroll, and time keeping. Del Monte’s workers

were subject to various collective bargaining agreements (“CBAs”) during the relevant time period, so

Del Monte also produced copies of the relevant CBAs. In all, Del Monte produced more than 3,000

pages of documents, plus dozens of electronic spreadsheets that contained tens of thousands of lines of

relevant time records and payroll data.

7. Plaintiffs’ investigation also included meetings and conferences between counsel;

review and analysis of the tens of thousands of lines of time records and payroll data; exchange of

mediation briefs and materials; interviews of numerous putative class members; and an exchange of

relevant excerpts of declarations from putative class members. Plaintiffs’ counsel have further

researched and analyzed the applicable law as applied to the facts discovered regarding Plaintiffs’

claims, the defenses thereto, and the damages claimed by Plaintiffs. Based on the information obtained

through informal discovery, as well as the stage of the proceedings, Plaintiffs and their counsel had

sufficient information to intelligently evaluate Del Monte’s potential exposure to the Class in view of

the risks of continued litigation.

8. On June 24, 2014, Plaintiffs and Del Monte participated in a full day mediation with

Mark Rudy, Esq. of Rudy, Exelrod, Zieff & Lowe, LLP, a highly respected mediator with extensive

experience in wage and hour class action matters, in San Francisco. (Attached hereto as Exhibit 2 is a

true and correct copy of Mr. Rudy’s biography from his firm website, which can be retrieved at:

http://www.rezlaw.com/Our-Attorneys/Mark-S-Rudy.shtml) The mediation session was successful as a

1 It came to my attention that Mr. Montgomery filed bankruptcy during the pendency of this action,

and therefore new class representatives were located to take his place.

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result of a mediator’s proposal. The parties have a reached a settlement agreement and now Plaintiffs

bring it before this Court for approval.

9. Under the Settlement, the “Class” refers to all non-exempt employees employed by Del

Monte in California at any time from April 19, 2009 through preliminary approval. (Settlement, ¶ I.F.)

According to Del Monte’s records, there are approximately 6,000 Class members. Under the

Settlement, the “Subclass” refers to all Class members who were employed at any time by Del Monte

on or after April 19, 2010 and are no longer employed as of the date of preliminary approval. Since a

large percentage of class members are seasonal workers, a large portion of the Class will be included in

the Subclass.

10. The Settlement provides for a Gross Settlement Amount (“GSA”) of $7,500,000. The

Net Settlement Fund (“NSA”) is the portion of the GSA remaining after deductions for attorneys’ fees

(up to 1/3 of the GSA), actual litigation costs up to $20,000, an enhancement award to Plaintiffs (up to

$5,000 each to Negrete and Philips), claims administration expenses, and payment of PAGA civil

penalties of $50,000.

11. Plaintiffs contend that by virtue of having worked in hourly positions for the same

employer in California during the same time period, the members of the Settlement Class share claims

that give rise to common questions of law and fact, including, but not limited to: (i) whether Del Monte

maintained a policy or practice of not providing employees with legally compliant meal and rest breaks;

(ii) whether class members’ meal and/or rest breaks were non-compliant because they were required to

don and doff their protective gear while on their meal and rest breaks; (iii) whether Del Monte failed to

pay minimum wages and/or overtime pay when it failed to pay employees for donning and doffing

work gear; (iv) whether Del Monte failed to pay minimum wages and/or overtime pay for pre- or post-

shift work; (v) whether Del Monte failed to timely pay final wage payments to Subclass Members at

separation of employment because they had an underlying meal break, rest break, minimum wage

and/or overtime claim; (vi) whether as a result of these policies or practices, Del Monte provided Class

Members with inaccurate wage statements; and (vii) whether Del Monte is liable to Class Members for

waiting time penalties under Labor Code § 203. Under Plaintiffs’ theories of liability, because the

answers to these and related common questions will resolve Del Monte’s liability to Settlement Class

Members with respect to all issues, these questions predominate over any remaining and ancillary

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questions that may be unique to individual Settlement Class Members.

12. Plaintiffs are typical of the Settlement Class. Specifically, like Settlement Class

Members, Plaintiffs worked in hourly positions for Del Monte in California during the relevant time

period, were subject to the same wage and hour policies and practices at issue in this lawsuit, and thus

share the same claims as a result. Moreover, both Plaintiffs are no longer employed by Del Monte and

are therefore adequate to represent the Subclass of former employees. Consequently, Plaintiffs and

Class Members share the same claims, to which Del Monte could potentially assert the same defenses.

In this case, Plaintiffs have no conflicts of interest with absent Settlement Class Members and have

agreed to place their interests above their own.

13. I have no known conflicts of interest with Plaintiffs or with absent Class Members and

am aware of no conflicts of interest between Plaintiffs and absent Class Members.

14. I received my undergraduate degree at UCLA in 1996 and my law degree from Loyola

Law School in 1999. Since being admitted to the State Bar of California in 1999, I have actively

practiced civil litigation for the entirety of that time period.

15. I have been involved as lead or co-lead class counsel in numerous wage and hour,

consumer and antitrust class action cases. The following is a sampling of class actions in which I have

been appointed as class counsel:

a. Padilla v. UPS, U.S. District Court, Central District of California, Case No. 08-

CV-1590 (granted final approval in a case involving claims for failure to provide

meal periods to part-time employees engaged in sort operations and failure to

pay final wages in a timely manner to terminated employees).

b. Vang v. Burlington Coat Factory Warehouse Corp., U.S. District Court, Central

District of California Case No. 09-CV-8061 (granted final approval in a case

involving, among other things, vacation pay forfeitures, failures to provide meal

and rest periods, and failures to pay overtime wages based on employee

misclassification).

c. Garcia v. Am. Gen. Fin. Mgmt. Corp., U.S. District Court, Central District of

California, Case No. 09-CV-1916 (granted final approval in a case filed on

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behalf of account managers in case involving, among other things, alleged

overtime miscalculations and meal and rest period violations).

d. O’Neill v. Genesis Logistics, Inc., U.S. District Court, Northern District of

California, Case No. 08-CV-4707 (granted final approval in a case involving

claims for failure to provide meal periods to employees who worked as drivers

delivering goods to 7-11 stores throughout California and failure to pay final

wages in a timely manner to terminated employees).

e. Spokes v. Lush Cosmetics, LLC, Los Angeles Superior Court, Case No.

BC391397 (granted final approval in a case involvoing alleged failures to

provide meal and rest periods and failure to timely pay all final wages to

California sales associates and key holders).

f. Green v. Staples Contract and Commercial, Inc., Los Angeles Superior Court,

Case No. BC389789 (granted final approval in a case involving claims for

unprovided meal and rest periods, inaccurate wage statements, waiting time

penalties, and unfair business practices on behalf of truck drivers delivering

Staples office supplies in California).

g. Green v. Universal Music Group, Los Angeles Superior Court, Case No.

BC374253 (granted final approval in a case involving misclassification claims of

current or former IT Support employees, including engineers, server analysts,

desktop support, and technical leads).

h. Jones v. Shred-It USA, Inc., U.S. District Court, Central District of California,

Case No. 11-CV-00526 (granted final approval in a case brought on behalf of

customer service representatives and balers for alleged off-the-clock work and

meal and rest period violations).

i. Alvarez v. Gary Grace Enterprises, LP, Marin Superior Court, Case No. CIV

1002553 (granted final approval in a case on behalf of hair salon employees for

overtime miscalculation and related claims).

j. Calderon v. GreatCall, Inc., San Diego Superior Court, Case No. 37-2010-

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00093743-CU-OE-CTL (granted final approval in a case on behalf of customer

service employees for, among other things, alleged meal and rest period

violations and overtime calculation errors).

k. Douglas v. California Credit Union, Los Angeles Superior Court, Case No.

BC445050 (granted final approval in a case on behalf of customer service

representatives alleging overtime miscalculation claims).

l. Cerdenia v. USA Truck, Inc., U.S. District Court, Central District of California,

Case No. 10-CV-1489-JVS (granted final approval in an action on behalf of

truck drivers for meal and rest period violations, off-the-clock pre- and post-shift

work, and unauthorized wage deductions).

m. Butler v. Lexxiom, Inc., San Bernardino Superior Court, Case No. CIVRS

1001579 (granted final approval in an action on behalf of debt resolution center

employees alleging, among other things, meal and rest period violations and

overtime calculation errors).

16. My firm has been actively involved in this litigation at all points since the filing of the

initial Complaint and in the pre-filing investigation conducted in this action. This involvement has

included, but has not been limited to, extensive conversations with Montgomery, Negrete, and Philips;

actively participating in all aspects of the action with respect to the preparation of the various

complaints, the formal and informal discovery processes the mediation and settlement negotiation

processes (including the preparation of a detailed confidential mediation brief, the review of thousands

of pages of policies, handbooks, and CBAs, plus tens of thousands of line of of payroll and time

records); numerous intra-office discussions with my colleagues as well as communications with

defense counsel; development of liability exposure models; preparation of the motion for preliminary

approval of class action settlement. As a result of this extensive involvement, and my extensive

experience in wage and hour class action litigation, the Settlement in this case reflects a fair, adequate,

and reasonable compromise of disputed wage and hour claims in view of Del Monte’s potential liability

exposure as compared against the risks of continued litigation, for the reasons set forth in the

Memorandum of Points and Authorities in Support of the Motion for Preliminary Approval.

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17. The core questions in this case concern the legality of policies and practices with respect

to timekeeping, payroll, meal and rest periods, and wage deductions that Defendant applies to all Class

Members. Because resolving the legality of Del Monte’s policies and practices presents a highly

significant aspect of this case from a liability perspective, they predominate for purposes of class

certification.

18. The Settlement in this case is the product of informed arm’s length negotiations between

experienced counsel with the assistance of a highly experienced mediator. Based on data furnished by

Del Monte, Plaintiffs estimate at this time that Del Monte’s theoretically possible liability exposure in

this action to be approximately $50,277,196 to $54,727,196, the breakdown of which is as follows:

a. Meal and Rest Break Claims: Based on information Plaintiffs’ counsel learned

from interviews with Plainitffs and with putative class members, for purposes

calculating potential liability, Plaintiffs assumed that each class member was not

provided a meal or rest period once per week. Thus, pursuant to Lab. Code § 226.7,

each class member would be entitled to one hour of pay at his or her regular rate of

pay for each week of employment (one hour for a missed meal period or one hour

for a missed rest period). Based on records produced by Del Monte pursuant to the

mediation privilege, there were a total of approximately 371,700 aggregate

workweeks during the relevant time period, and putative class members earned an

average hourly rate of $17.95. Thus, Del Monte’s potential liability exposure under

Lab. Code § 226.7 is calculated as: $17.95 x 371,700 = $6,672,015.

b. Wages for Doffing/Donning During Breaks: putative class members told

Plaintiff’s counsel – and declared in declarations under penalty of perjury – that

doffing and donning work gear took about one minute. Thus, in the aggregate, about

6 minutes per day were spent doffing and donning during breaks per shift (2 minutes

each during one meal break and two rest breaks). Assuming a violation rate of once

per week (as explained above), Plaintiffs estimated Del Monte’s potential liability

based upon 6 minutes of unpaid doffing/donning time per week: 371,700 workweeks

x $17.95 x 0.1 (six minutes equals one-tenth of one hour) = $667,201.

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c. Wages for Auto-Deduct: In addition, for many class members, 30 minutes were

auto-deducted from wages for a meal period, regardless of whether the employee

clocked out for lunch. As stated above, Plaintiffs’ counsel estimates potential

liability of one legally insufficient meal period per week, and many of those

violations were simply for a late meal period (where a full 30 minute-meal period

was provided) or a meal period that was only a few minutes less than the 30 minutes

required by law (e.g. 25-28 minutes). Thus, as with the doffing/donning, Plaintiffs

estimated approximately 6 minutes of unpaid time per weekly violation. Based on

time records produced by Del Monte pursuant to the mediation privilege, there were

about 371,000 aggregate workweeks in which auto-deduct was used. Thus, Del

Monte’s potential liability for unpaid wages for auto-deduct is calculated as: 371,000

workweeks x $17.95 x 0.1 = $665,945.

d. Overtime Wages for Pre- and Post-Shift Unpaid On-the-Clock Work: As

explained in detail in Plaintiffs’ Points and Authorities, putative class members would

often clock-in before the beginning of their shift, and/or clock out after the end of the

shift, but would only be paid for their scheduled shift. Thus, Plaintiffs contend,

putative class members are owed overtime wages for this unpaid on-the-clock time.

Based on records produced by Del Monte pursuant to the mediation privilege, most of

this unpaid on-the-clock time resulted from putative class members clocking in before

the start of the shift. As also stated above, many putative class members testified in

written declarations (excerpts of which were produced by Del Monte) and told

Plaintiffs’ counsel in interviews that most of this pre-shift time was spent socializing

with other workers pre-shift. Only a small portion, if any, of the unpaid on-the-clock

time was actual work time.

For purposes of calculating potential liability for this claim, Plaintiffs’ counsel first

analyzed the time records produced by Del Monte and compared them with the pay

records produced by Del Monte, and calculated the difference in hours paid versus

the hours on-the-clock during the relevant time period. This came to approximately

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491,000 hours. Then, because only a small portion of this time was spent actually

working, the total hours of unpaid on-the-clock time was multiplied by 0.2, coming

to 98,200 hours. Finally, this number was multiplied by ($17.95 x 1.5), to reflect that

the time should have been paid at time-and-a-half (overtime). The total potential

liability came to $2,644,035.

e. Penalties under Lab. Code §§ 203 and 226: Because a majority of putative class

members are seasonal employees, a majority of class members will be eligible for

Lab. Code § 203 penalties. Using an estimate of 3,500 former employees, estimated

Lab. Code § 203 penalties (for “willful” failure to pay final wages) equal

$15,078,000, as follows: 3,500 former employees x 8 hours/day x $17.95/hour x a

maximum of 30 days. Estimated maximum Lab. Code § 226 penalties (for

“knowing and intentional” violation of wage statement statute) equal $24,000,000

($4,000 maximum penalty under § 226 x 6,000 class members), which yields a total

of $39,078,000 in Lab. Code §§ 203 and 226 penalties.

f. PAGA penalties: PAGA penalties are discretionary. See, Lab. Code § 2699(e)(2)

(the court in its discretion “may award a lesser amount than the maximum civil

penalty amount specified by this part…”). The Court could decide to award little to

no PAGA penalties, or it could award a substantial amount. For purposes of

settlement negotiations, Plaintiffs estimate between $500,000 and $5,000,000 in

potential PAGA penalties.

19. Notwithstanding the raw monetary amount of the potential exposure, there were risks that

continued litigation would entail that make the compromise amount fair, adequate, and reasonable.

These risks include, but are not limited to: (i) the risk that the Court might conclude, outside the context

of a settlement class, that individual questions predominate over common questions as to liability and/or

damages issues; (ii) the risk that potential differences between the job sites where different class

members worked, and/or the differences in each employee’s experience with regard to meal and rest

periods, donning and doffing, and pre- or post-shift activities could cause class certification to be denied

and/or narrow the scope of any certified class; (iii) the risk that the Court could find that Del Monte

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provided class members with legally sufficient meal and rest periods, and/or that class members were

not required to perform off-the-clock work or unpaid on-the-clock work, thus precluding any underlying

recovery for Plaintiff or the class; (iv) the risk that good faith disputes as to the viability of the

underlying claims in this case could preclude any penalty awards under California Labor Code §§ 203

and 226, which require a “willful” violation or a “knowing and intentional” violation, respectively (see,

e.g., 8 Cal. Code Regs. § 13520 [“a good faith dispute that any wages are due will preclude imposition

of waiting time penalties under Section 203]; Choate v. Celite Corp. (2013) 215 Cal.App.4th 1460

[reversing award of § 203 penalties based on good faith defense where underlying wage claim presented

issue of first impression]); (v) the risk that Del Monte would appeal if Plaintiffs prevail, further delaying

payments to the class; (vi) the risk that the Court would award little or no PAGA penalties. While these

risks are far from exhaustive, their magnitude shows the Settlement Agreement is a fair, adequate, and

reasonable compromise in view of them.

20. In view of the aforementioned factual and legal disputes and the risks of protracted

litigation, the Settlement reflects a fair, adequate, and reasonable compromise amount for these claims

and warrants preliminary approval. Further, the policy under California law in favor of settlement in

class actions and other complex cases applies with particular force in this case. Certainty of recovery is

enhanced by an equitable and timely consummated Settlement such as that under consideration in this

case. 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 respective roles in the economy. The expense of protracted litigation in these cases is

formidable. Thus, while the risks listed are far from exhaustive, they show that the Settlement is fair,

adequate, and reasonable in view of them. Additionally, the risks of denial of class certification under

the terms outlined by the California Supreme Court in the Brinker case are very significant as the

policies in this case are, at a minimum, facially compliant under the standard articulated in Brinker.

Class Counsel is also of the opinion that the Settlement represents an excellent bargain for the class,

given the inherent risks, hazards, and expenses of carrying the case through trial.

21. The Settlement fairly, adequate, and reasonably compensates Class Members based on

the potential extent of their claims. The proposed method of allocating the NSA to Class Members and

Subclass Members is also fair and reasonable. Based on the numerous potential ways to calculate the

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