julian hammond (sbn 268489) polina brandler (sbn …

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MEM. OF P. & A. ISO PL.’S. MTN. FOR ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 19STCV17953

JULIAN HAMMOND (SBN 268489) [email protected] POLINA BRANDLER (SBN 269086) [email protected] ARI CHERNIAK (SBN 290071) [email protected] HAMMONDLAW, P.C. 1829 Reisterstown Rd., Suite 410 Baltimore, MD 21208 (310) 601-6766 (310) 295-2385 (Fax) Attorneys for Plaintiffs and the Putative Class

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

MATTHEW NORMAND and ANGELA WILSON, individually and on behalf of all others similarly situated,

Plaintiffs, vs. LOYOLA MARYMOUNT UNIVERSITY, a California Corporation,

Defendant.

Case No. 19STCV17953 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT Date: February 11, 2021 Time: 10:00 a.m. Judge: Hon. Carolyn B. Kuhl Dept: 12 – Spring Street Courthouse

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i MEM. OF P. & A. ISO PL.’S. MTN. FOR ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

CASE NO. 19STCV17953

TABLE OF CONTENTS

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

II. OVERVIEW OF THE SETTLEMENT TERMS ................................................................2

III. OVERVIEW OF THE LITIGATION .................................................................................4

A. Pleadings ................................................................................................................4

B. Pre-Mediation Investigation and Discovery ............................................................4

C. LMU Overhauled its Compensation System and Changed its Practice ....................5

D. Mediation ...............................................................................................................6

IV. DEFENDANT’S DEFENSES ............................................................................................6

A. Major Merits Defenses ...........................................................................................6

B. Class Certification Defenses ...................................................................................8

V. CERTIFICATION FOR SETTLEMENT PURPOSES IS APPROPRIATE ........................8

A. The Class Is Ascertainable and Sufficiently Numerous ...........................................8

B. “Community of Interest” Exists Among CMs .........................................................9

C. This Class Action Is a Superior Method of Adjudication....................................... 11

VI. THE COURT SHOULD PRELIMINARILY APPROVE THE SETTLEMENT BECAUSE IT IS FAIR, REASONABLE AND ADEQUATE. ......................................... 12

A. The Two Step Settlement Approval Process ..................................................................... 12

B. The Settlement Is Fair and Reasonable ............................................................................. 12

C. The Proposed Class Notice Content and Procedure Are Adequate .................................... 18

D. The Enhancement Awards to the Class Representatives Are Reasonable .......................... 18

E. The Requested Attorneys’ Fees Are Reasonable ............................................................... 19

VII. CONCLUSION ................................................................................................................ 19

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ii MEM. OF P. & A. ISO PL.’S. MTN. FOR ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT


TABLE OF AUTHORITIES

CASES

Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157 (2008) ...........................................................................................7

Beckstead v. Super Ct., 21 Cal. App. 3d 780 (1971) .............................................................................................. 11

Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012)......................................................................................................8

Bufil v. Dollar Fin. Grp., Inc., 162 Cal. App. 4th 1193 (2008) ......................................................................................... 11

Caro v. Procter & Gamble Co., 18 Cal. App. 4th 644 (1993) ............................................................................................. 11

Cartt v. Superior Court, 50 Cal. App. 3d 960 (1975) .............................................................................................. 18

Castillo v. ADT, LLC, 2017 U.S. Dist. LEXIS 10579 (E.D. Cal. Jan. 24, 2017) ................................................... 15

Cellphone Termination Fee Cases, 186 Cal. App. 4th 1380 (2010) ......................................................................................... 18

Chavez v. Netflix, Inc., 162 Cal. App. 4th 43 (2008) ............................................................................................. 12

Cotter v. Lyft, Inc., 193 F. Supp. 3d 1030 (2016) ............................................................................................ 16

Dunk v. Ford Motor Co., 48 Cal. App. 4th 1794 (1996) ........................................................................................... 12

Elliot v. Spherion Pac. Work, LLC, 572 F. Supp. 2d 1169 (2008) ..............................................................................................7

Fireside Bank v. Superior Court, 40 Cal. 4th 1069 (2007)......................................................................................................9

Furry v. Easy Bay Publishing, LLC, 30 Cal. App. 5th 1072 (2018) .............................................................................................7

Kao v. Holiday, 12 Cal. App. 5th 94 (2017) .................................................................................................7

Kullar v. Foot Locker Retail, Inc., 168 Cal. App. 4th 116 (2008) ..................................................................................... 12, 13

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iii MEM. OF P. & A. ISO PL.’S. MTN. FOR ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT


Laffitte v. Robert Half Internat. Inc., 1 Cal. 5th 480 (2016) ....................................................................................................... 19

Linder v. Thrifty Oil Co., 23 Cal. 4th 429 (2000) .......................................................................................................8

Magadia v. Wal-Mart Assocs., 384 F. Supp. 3d 1058 (N.D. Cal. May 31, 2019 ..................................................................7

Mullane v. Central Hanover Bank & Trust, 339 U.S. 306 (1950) ......................................................................................................... 18

Negri v. Koning & Associates, 216 Cal. App. 4th 392, 399 (2013) ................................................................................... 15

Noel v. Thrifty Payless, Inc., 7 Cal. 5th 955 (2019) .........................................................................................................8

Nordstrom Com’n Cases, 186 Cal. App. 4th 576 (2010) ........................................................................................... 13

North Cnty. Contractor’s Ass’n v. Touchstone Ins. Services, 27 Cal. App. 4th 1085 (1994) ........................................................................................... 12

Raphael v. Tesoro Ref & Mktg. Co., No. 2:15-CV-02862- ODW, 2015 U.S. Dist. LEXIS 130532 (C.D. Cal. Sept. 25, 2015) ... 16

Reyes v. Board of Supervisors, 196 Cal. App. 3d 1263 (1987) ............................................................................................8

Rose v. City of Hayward, 126 Cal. App. 3d 926 (1981) ..............................................................................................9

Seastrom v. Neways, Inc., 149 Cal. App. 4th 1496 (2007) ......................................................................................... 10

Vasquez v. Coast Valley Roofing, Inc., 266 F.R.D. 482 (E.D. Cal. 2010) ...................................................................................... 19

Wershba v. Apple Computers, Inc., 91 Cal. App. 4th 224 (2001) ............................................................................................. 18

Statutes

Labor Code § 201 ..........................................................................................................................4

Labor Code § 203 ...................................................................................................................... 4, 7

Labor Code § 226 ..........................................................................................................................6

Labor Code § 226(e) ......................................................................................................................7

Labor Code § 226.2 .......................................................................................................................4

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iv MEM. OF P. & A. ISO PL.’S. MTN. FOR ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT


Labor Code § 226(a) ......................................................................................................................4

Labor Code § 1194.2 ................................................................................................................... 19

TREATISES

1 Newberg on Class Actions § 3.12 (5th ed. 2011) .........................................................................9

1-3 California Class Actions Practice and Procedure (2007) § 3.02 .............................................. 10

4 Newberg on Class Actions § 11.25 (4th ed. 2002) ..................................................................... 12

Manual for Complex Litigation (Fourth) § 21.6 ........................................................................... 12

REGULATIONS

Cal. Code Regs., tit. 8, § 13520(a) .................................................................................................7

Cal. Rules of Court, Rule 3.766 ................................................................................................... 18

Cal. Rules of Court, Rule 3.769 ............................................................................................... 8, 12

DOCKETED CASES

Acheson v. Express LLC, No. 109CV135335 (Santa Clara Cnty. Super. Ct. Sep. 13, 2011) ...................................... 18

Baker v. L.A. Fitness Int'l, LLC, No. BC438654 (Los Angeles Cnty. Super. Ct. Dec. 12, 2012) .......................................... 18

Garcia v. CSU Fullerton, No. 30-2017-00912195-CU-OE-CXC (Orange Cty. Super. Ct. Feb. 15, 2019) ................. 17

Pereltsvaig v. Stanford University, No. 17-CV-311521 (Santa Clara Cty. Super Ct. Jan. 4, 2019)........................................... 17

Stempien v. DeVry University, No. RG19002623 (Alameda Cty. Super. Ct. July 30, 2020) .............................................. 17

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1 MEM. OF P. & A. ISO PL.’S. MTN. FOR ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT


I. INTRODUCTION

Plaintiffs Matthew Normand and Angela Wilson seek preliminary approval of a non-reversionary

$3,400,000 settlement of their wage and hour class claims against Loyola Marymount University

(“Defendant” or “LMU”) on behalf of 1,726 adjunct instructors employed by LMU in California (“Class

Members” or “CMs”) from May 23, 2015 through the preliminary approval date (“Class Period”). This

settlement was reached after a thorough and extensive investigation by Plaintiffs’ Counsel, the exchange

of documents and information for purposes of mediation, and a full-day mediation with a skilled

mediator. The settlement, if approved, will provide meaningful recovery for CMs – an average payment

of $2,138 gross and $1,348 net for those Class Members who taught classes between May 23, 2015 and

Fall 2019 semester, the time when Defendant reclassified its adjunct instructors as non-exempt.1

As described in the Declaration of Julian Hammond in Support of Plaintiffs’ Motion for Order

Granting Preliminary Approval of Class Action Settlement (“Hammond Decl.”), the quick progression

of this case from filing to mediation and settlement was due in significant part to Plaintiffs’ Counsel’s

experience in the prosecution and resolution of wage and hour class actions, particularly those on behalf

of adjunct instructors. These lawsuits have resulted in industry-wide changes to compensation practices

for adjunct instructors. Following the filing of these lawsuits, at least five California private

universities/colleges (including LMU) have recently reclassified their adjuncts and begun paying them

hourly for all hours worked and/or tracking their hours. Hammond Decl. ¶¶ 11-18.

The Settlement Agreement avoids the risks associated with litigation and provides relief to CMs

years earlier than if the claims were litigated through trial and appeal. The terms of the Settlement

Agreement are fair and reasonable and satisfy the criteria for judicial approval. Accordingly, the Court

should grant preliminary approval, approve the proposed Notice, and set a date for a final approval

hearing.

1 The Settlement Agreement is attached as Exhibit 1 to the Proposed Order filed herewith. Of the 1,726 Class Members, 156 Class Members who taught in or after Fall 2019 Semester will receive a $200 flat payment, which is commensurate with their claims because, as discussed in detail below and Hammond Declaration, Defendant changed its classification and compensation policies in order to bring them into compliance with the law.

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II. OVERVIEW OF THE SETTLEMENT TERMS

The Settlement Agreement (“SA”) resolves all claims of the Plaintiffs and the proposed Class. A

summary of the Settlement terms is as follows:

1. Gross Settlement Amount (“GSA”) – LMU will pay a non-reversionary sum of

$3,400,000. SA §§ 1.11, 4. Separately from the GSA, LMU will pay the employer’s share of payroll

taxes once those amounts are calculated. Id.

2. Class Definition and Class Period – The Class includes all current and former employees

who performed the duties of an adjunct faculty member for LMU in California during the Class Period,

which is May 23, 2015 through the preliminary approval date. SA §§ 1.3, 1.5.

3. Attorneys’ Fees, Costs, and Named Plaintiffs’ Enhancement Awards – At the time of the

final approval hearing, Class Counsel may seek attorneys’ fees of up to $1,190,000 (35% of the GSA),

up to $25,000 to reimburse out-of-pocket litigation costs, and an Enhancement Award of up to $7,500 to

Plaintiff Normand and $2,500 to Plaintiff Wilson. SA §§ 5, 6.

4. PAGA Award – The Settlement allocates $50,000 for the PAGA claim. SA § 7. The

LWDA will be paid its 75% share from that amount ($37,500). The remaining $12,500 will be added to

the NSA for distribution to the CMs as their 25% share of the PAGA penalties. Id.

5. Settlement Administrator and Administration Costs shall be capped of $20,000. SA § 8.

The Parties have mutually agreed to use Simpluris, Inc. as the Administrator. SA § 8. Simpluris is

experienced in administering class action settlements and has provided notification and/or claims

administration services in thousands of cases. Hammond Decl. ¶ 113.

6. Net Settlement Amount (“NSA”) will total approximately $2,117,500. Hammond Decl.

¶ 99. This is the amount remaining of the GSA after the deduction of attorneys’ fees, costs, enhancement

awards, the LWDA’s share of the amount allocated to PAGA, and Simpluris’ costs, assuming the Court

approves these amounts. Id. The NSA will be allocated among the Class as follows: each CM who taught

during or after the Fall 2019 Semester (“Post-Fall 2019 Semester Class Members”) – i.e., those teaching

after Defendant changed its policies to pay hourly – will receive a flat $200 payment. SA §§ 1.15, 9.1.1.

The remainder of the NSA will be paid pro rata to each CM teaching between the beginning of the Class

Period and Fall 2019 (“Pre-Fall 2019 Class Members”) based on the number of paychecks issued to them

during the Class Period as a percentage of paychecks issued to all Pre-Fall 2019 Class Members during

the Class Period. SA §§ 1.14, 9.1.2. This formula relies on objective data from each CM’s employment

history. CMs are given an opportunity to dispute the information in the notice. SA § 13.

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7. Class Notice – Within 25 calendar days of preliminary approval, LMU will provide

Simpluris with the Class List and the number of paychecks issued to each Pre-Fall 2019 CM. SA § 10.1.1.

Within 45 days of preliminary approval, after updating the addresses, Simpluris will mail to each CM a

Notice substantially in the form attached to the Settlement Agreement as Exhibit A. SA §§ 1.4, 10.1.3.

For all returned Notices, Simpluris will use skip tracing to update addresses and initiate a second mailing.

SA § 10.1.4.

8. Automatic Participation – The Settlement is non-claims-made and each CM will

automatically receive his or her share of the NSA, unless he or she opts out. SA § 9.1.4.

9. Opting Out or Objecting – CMs who wish to opt-out of the Settlement must send a written

notice to Simpluris requesting to opt-out within 45 days of the date the Notices are mailed out. SA

§§ 1.19, 11.1. Any CM who properly requests to opt out will not be entitled to receive any payment under

the settlement and will not be bound by the settlement. SA § 11.2. A CM may object to the Settlement

by filing an objection with the Court and mailing the objection to Simpluris within 45 days of the date

the Notice is mailed out. SA §§ 1.19, 11.1. If a CM objects to the Settlement, the CM will remain a

member of the Class and if the Court approves the Settlement, the CM will be bound by its terms in the

same way and to the same extent as a CM who does not object. SA at § 12.

10. Tax Consequences of Settlement Payments – For tax purposes, each CM’s payment is

allocated 20% to wages, and 80% to penalties and interest. SA § 9.1.3.

11. Uncashed Checks – Subject to Court approval, the parties have designated the non-profit

organization Legal Aid Foundation of Los Angeles (“LAFLA”) as cy pres recipient under California

Code of Civil Procedure § 384 that permits the distribution of unpaid residuals from class action

settlements to “nonprofit organizations providing civil legal services to the indigent.” SA § 14.2. LAFLA

enforces wage laws and other legal rights for low-income residents of Los Angeles. Hammond Decl.

¶ 114.

12. Scope of Release and Final Judgment – The release contemplated by the proposed

Settlement corresponds to the claims made against LMU in the Second Amended Complaint and includes

all claims arising from or based on the events alleged in the complaint that occurred during the Class

Period. SA § 17.1. The named Plaintiffs will also give an additional general release against Defendant as

consideration for their Enhancement Awards. SA § 17.2.

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III. OVERVIEW OF THE LITIGATION

A. Pleadings

On May 23, 2019, Plaintiff Normand filed this lawsuit alleging that CMs were non-exempt

because their compensation did not meet the requirements of the professional exemption.2 Plaintiff

alleged that LMU was required – but failed – to pay CMs for their rest breaks and at least minimum wage

for the non-teaching activities performed outside of their scheduled classroom hours, separately and apart

from the fixed per credit pay (i.e. a piece rate), in violation of Labor Code § 226.2. As a result, LMU

failed to pay all wages due upon termination as required under Labor Code § 201, and issued inaccurate

wage statements in violation of Labor Code §§ 226(a) and 226.2(a). In addition, Plaintiff alleges that

LMU employed CMs for a set period of time pursuant to their employment contracts and discharged

them at the end of each contract period, yet did not pay them their final wages for the contract period

until an average of seven days after the discharge, resulting in waiting time penalties under Labor Code

§ 203. On August 16, 2019, Plaintiff filed a First Amended Complaint (“FAC”) to add a claim for PAGA

penalties. Hammond Decl. ¶ 21. On June 22, 2020, Plaintiffs filed a Second Amended Complaint

(“SAC”) adding Plaintiff Wilson as a class representative and adding a rest break claim. LMU answered

Plaintiffs’ SAC and asserted the following affirmative defenses, among others: (1) that CMs were

afforded the opportunity to take lawful rest breaks; (2) that LMU’s violation of Labor Code § 201 was

not willful; and (3) that class certification was inappropriate. Id. at ¶ 23.

B. Pre-Mediation Investigation and Discovery

Thereafter, the parties agreed to attend mediation and engaged in informal discovery. Hammond

Decl. ¶ 24. Defendant produced highly relevant class data including (a) spreadsheets showing for each

employee, the term he/she taught in, the number of courses taught in each term, the number of pay periods

issued in each term, gross earnings for each term, and recorded termination dates, (b) course schedules

(including the number of class meetings and length of each class meeting); (c) a representative sample of

Part-Time Faculty Service Agreements, (d) a representative sample of wage statements, (e) LMU

Academic Calendars for years 2015-2019, (f) LMU Faculty Handbooks in effect during the Class Period,

(g) schedule of per credit unit pay rates of Part-Time Faculty, and (h) payroll calendars and payroll cycles

for years 2015-2019. Id.

2 As discussed below, this is because CMs did not earn enough to satisfy the minimum salary threshold as required by the Wage Order; and because CMs were piece-rate workers (and not salaried).

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Plaintiffs gathered additional documents from LMU’s website, and conducted interviews and a

survey of CMs regarding LMU’s change of compensation system to hourly and unpaid wages and rest

break claims. Hammond Decl. ¶ 25. These interviews and survey responses confirmed that CMs

performed many hours of work performing duties not covered by the piece rate (e.g., grading, preparing

course materials before the first day of classes), and made themselves available to students during class

breaks. Id.

From the informal discovery, Class Counsel calculated data points necessary to thoroughly

evaluate Plaintiffs’ class claims including class size, number of courses and classes taught, number of

wage statements issued to CMs, CMs’ average hourly rate and average daily rate, and total number of

days that Waiting Time Penalty Sub-CMs (i.e., those working during the three-year waiting time penalty

statutory period, from May 23, 2016 through preliminary approval) were allegedly paid late (i.e., total

number of days between the end of the Contract and the last paycheck). Hammond Decl. ¶¶ 30-32.

Plaintiffs also ascertained that LMU employed CMs on a course-by-course basis pursuant to a

uniform Contract. The Contract set out each CM’s terms of employment, including his/her compensation,

assigned course, and specific start date and end dates of employment (with the start date corresponding

to the first day of classes and the end date with the last day to submit grades). The Contracts, along with

annual memos sent by the Dean of each school, confirmed that CMs were paid a fixed amount per unit,

which varied only based on whether the CM was a Senior Lecturer, and whether he/she held a PhD or

terminal degree. Hammond Decl. ¶¶ 33-35.

From LMU’s exemplar wage statements, Plaintiffs confirmed that each wage statement prior to

Fall 2019 contained the same statement that the employee had worked “20” hours in the prior period,

although no work time was submitted by the CMs to LMU. Hammond Decl. ¶ 47.

From documents provided by LMU, Plaintiffs confirmed that CMs were required to complete

additional duties that were not covered by the Contracts, including duties prior to the start of the contract

(e.g., syllabus preparation), and other duties (e.g., grading papers, quizzes, exams, and projects, and

assessing student learning outcomes). Hammond Decl. ¶ 38.

C. LMU Overhauled its Compensation System and Changed its Practice

Following the filing of this lawsuit, LMU revised its compensation practices with respect to CMs.

Hammond Decl. ¶¶ 39-43. LMU re-classified CMs as hourly non-exempt employees. As part of this

reclassification, LMU began paying CMs by the hour. Id. LMU also changed the Contract start date to

begin approximately one week prior to the first day of classes, and enumerated additional duties CMs

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were required to perform. Id. ¶ 42. LMU’s roll-out provided that CMs were entitled to rest and meal

breaks. Id. ¶ 40. However, even during the Fall 2019 semester, LMU paid CMs based on estimated

hours worked – LMU did not actually track CMs’ hours worked until the beginning of January 2020. Id.

Although Class Members could theoretically change the number of hours entered in the time keeping

system during Fall 2019, they generally did not do so. Id. ¶¶ 40, 48.

D. Mediation

On March 2, 2020, the parties attended a full-day mediation with Lisa Klerman, a highly respected

mediator. Hammond Decl. ¶ 53. Prior to the mediation, the parties submitted detailed briefs, supported

by the documents obtained in informal discovery. Id. At the completion of the day, the parties were able

to reach agreement on the basic terms of the settlement, and agreed to prepare the formal settlement

agreement submitted herewith. Id. ¶ 54.

IV. DEFENDANT’S DEFENSES

A. Major Merits Defenses Plaintiffs faced the following actual or potential arguments to the merits of their claims.

1. CMs Were Exempt Employees:

Plaintiffs would have had to prevail on the question of whether CMs are exempt employees.

Hammond Decl. at ¶¶ 55-56. LMU’s defense could be based on the theory that a monthly salary

equivalent of two times the state minimum wage for full time employment, required to be exempt under

IWC Wage Order No. 4-2001, § 1, can be prorated for part time work to meet the exemption status. Id.

Plaintiffs believed only a small discount for settlement purposes was warranted for this defense. Id. at ¶

89.

2. CMs Are Salaried Non-Exempt Employees:

LMU could contend that CMs were properly classified as part-time, salaried non-exempt and that

their salaries covered all work performed, including any time spent working prior to the first day of the

Contract, and provided rest and meal breaks. Hammond Decl. ¶ 57. LMU argued that CMs’ employment

contracts implicitly required them to perform all tasks necessary for teaching of the course, including

Non-Teaching tasks not expressly mentioned, and could have argued that it took alleged “non-teaching

tasks” into consideration when it calculated each CM’s workload and set his/her salary for the course, so

Plaintiffs had no claim for unpaid wages or rest breaks. Id. at ¶¶ 58-59. If CMs were deemed exempt,

CMs’ claims based on Labor Code § 226 would have been eviscerated. Based on this argument, which

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is plausible on its face, Plaintiffs believed some discount for settlement purposes was warranted.

Hammond Decl. ¶¶ 82, 90.

3. Alleged Failure to Pay Wages Immediately Upon Discharge Was Not Willful:

In its Answer, LMU raised the defense that its alleged failure to pay CMs all wages due at the

end of their employment contract was not willful, and therefore the Class was not entitled to waiting time

penalties. Hammond Decl. at ¶ 23. This defense could have been based on the argument that there was

no discharge at the end of contract because most CMs were issued a contract for the next academic term

while still employed in the current term. Id.at ¶ 61; Elliot v. Spherion Pac. Work, LLC, 572 F. Supp. 2d

1169, 1176-77 (2008) (holding that temporary services employee was not “discharged” at the end of each

“temporary assignment” because the parties had a “continuous employer-employee relationship even

when Plaintiff was not engaged in an assignment”). Even if this argument ultimately failed, LMU could

have contended that the failure to pay was not willful, as there existed a good faith dispute that wages

were not due. Hammond Decl. ¶ 63; Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157, 1201 (2008);

see also Cal. Code Regs., tit. 8, § 13520(a). If LMU succeeded on this argument, Plaintiffs would not

have been entitled to penalties under Labor Code § 203. Hammond Decl. ¶ 71. Plaintiffs believed a

discount for settlement purposes was warranted for these defenses.

4. LMU’s Alleged Failure to Issue Accurate Wage Statements Was Not Knowing and

Intentional, and No Injury Resulted:

To prevail on a claim for inaccurate wage statement penalties under Labor Code § 226(e),

Plaintiffs would have had to prevail on the question of whether LMU’s alleged failure to issue accurate

itemized wage statements was knowing and intentional and CMs suffered injury as a result. Hammond

Decl. ¶¶ 64-66. LMU could have argued that it had a good faith defense to the “knowing and intentional”

elements based on Magadia v. Wal-Mart Assocs., 384 F. Supp. 3d 1058, 1082-1083 (N.D. Cal. May 31,

2019), which recognized such a defense.3 LMU could have argued that (a) it was not required to list CMs’

hours and hourly rates because they were exempt under California law; (b) CMs’ compensation is a

salary, not a piece-rate, and therefore no piece-rate information was required to be listed on the wage

statements and LMU does not owe wages for rest break time or nonproductive time and thus did not list

inaccurate net and gross wages; and (c) that it believed that CMs’ salary covered all work performed

3 California Courts of Appeal reject a good faith defense to Labor Code § 226(e) penalties. See Kao v. Holiday, 12 Cal. App. 5th 947, 962 (2017) and Furry v. Easy Bay Publishing, LLC, 30 Cal. App. 5th 1072, 1085 (2018).

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because non-teaching tasks were incorporated into the Contract pay and the wage statements accurately

reflected their net and gross wages earned, and were not required to list any of the other information

Plaintiffs alleged was required to be listed and was omitted. Hammond Decl. ¶ 65. Plaintiffs believed a

discount for settlement purposes was warranted for this defense. Id. at ¶ 76.

B. Class Certification Defenses In general, Plaintiffs viewed Defendant’s certification defenses as warranting only a small

discount. There was some risk that LMU could have pointed to CMs’ potentially diverging

understandings of which tasks were covered by the piece-rate. Hammond Decl. ¶ 88 As to Plaintiffs’

claim that Class Members were entitled to rest breaks as non-exempt employees but LMU imposed

uniform policies and procedures that impeded Class Members from taking rest breaks, Defendant could

have argued that Plaintiffs would be unable to certify a class because individualized issues would

predominate among putative class members in that LMU did not maintain rest break records, and some

Class Members took rest breaks, while others did not. Id. With respect to the Post-Fall 2019 CMs,

certification was a heavy risk because the claim was largely an off-the-clock claim that could have

required individualized testimony. Id. at ¶ 94.

V. CERTIFICATION FOR SETTLEMENT PURPOSES IS APPROPRIATE

When a negotiated class action settlement has been reached prior to certification – as here – the

Court may make an order approving or denying certification of a provisional settlement class. Cal. Rules

of Court, Rule 3.769(d). The decision to certify a class is purely a procedural one and should be based on

the allegations in the Complaint and not on the perceived factual or legal merit of the class claims. Linder

v. Thrifty Oil Co., 23 Cal. 4th 429, 439-41 (2000).

In California, a Class is certifiable if (1) the class is ascertainable and sufficiently numerous; (2)

there exists a well-defined community of interest; and (3) class action is a superior method of

adjudication. Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004, 1021 (2012); Linder, 23 Cal.

4th at 435. All class certification requirements are met in this case.

A. The Class Is Ascertainable and Sufficiently Numerous

Whether a class is ascertainable is determined by examining the class definition, the size of the

class and the means available for identifying class members. See Reyes v. Board of Supervisors, 196 Cal.

App. 3d 1263, 1271 (1987). Class members are “ascertainable” where they may be readily identified

without unreasonable expense or time by reference to official records. See Noel v. Thrifty Payless, Inc.,

7 Cal. 5th 955, 980 (2019) (“We conclude that the objectives of this requirement are best achieved by

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regarding a class as ascertainable when it is defined “in terms of objective characteristics and common

transactional facts” that make “the ultimate identification of class members possible when that

identification becomes necessary.”). These criteria are met here as Defendant’s records are sufficient to

permit identification of the CMs. SA § 10.1.1.

The Settlement Class is sufficiently numerous because it has 1,726 members. Hammond Decl.

¶ 31. See Rose v. City of Hayward, 126 Cal. App. 3d 926, 934 (1981) [42 people “is quantitatively

sufficient for class action”]; see also 1 Newberg on Class Actions § 3.12 (5th ed. 2011) (“[A] class of 40

or more members raises a presumption of impracticability of joinder.”).

B. “Community of Interest” Exists Among CMs

A “community of interest” requirement embodies three factors: (1) predominant common

questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3)

class representatives who can adequately represent the class. Fireside Bank v. Super. Court, 40 Cal. 4th

1069, 1089 (2007). Plaintiffs meet each element.

1. Common Questions of Law and Fact Predominate:

The ultimate question the issue of predominance presents is 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.’”

Brinker, 53 Cal. 4th at 1021 (citations omitted). A court’s determination of whether common questions

predominate depends on whether plaintiffs’ theory of recovery is “‘as an analytic matter, likely to prove

amenable to class treatment.’” Id. at 1021-22 (citation omitted). “‘As a general rule, if the defendant’s

liability can be determined by facts common to all members of the class, a class will be certified even if

the members must individually prove their damages.’” Id.

Common questions of law and fact predominate here. Whether LMU’s fixed per-credit pay

constitutes a piece rate is a legal question common to the entire Class, and drives the resolution of

Plaintiffs’ claims for unpaid wages and rest breaks. Even if the fixed per-credit pay is not a piece rate,

then as to the unpaid wages claim the common predominant question is whether the compensation set

out in the Contract covered work that CMs performed prior to the Contract period. This question is

common to the entire Class because LMU issued uniform Contracts to all the CMs that set out a beginning

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and end date of the Contract, with the beginning date coinciding with the first day of classes on the

academic calendar.4 Hammond Decl. ¶ 77-82.

Other common questions include whether CMs were employed for a set period of time, whether

that set period of time was the time between beginning and end dates set out in the Contract, and whether

the CMs were “discharged” for purposes of Labor Code § 201 on the end date specified in the Contract.

These questions are common to the entire Class because they are a matter of construction of uniform

Contracts, depend on the comparison between the academic calendar and Contract dates, and on the legal

meaning of the term “discharge.” Hammond Decl. ¶ 62. Finally, questions common with respect to

Plaintiffs’ wage statement claim include whether LMU’s listing of the total sum earned during each pay

period with a fixed statement that 20 hours had been worked in each pay period, without listing actual

hours worked or hourly rates in effect on the wage statements issued to the Class resulted in unlawful

wage statements under Labor Code § 226(a)(2) and (a)(9) because CMs were non-exempt employees,

and whether, if the per course compensation was piece rate, LMU was required to list the number of

pieces earned, nonproductive and rest break time and compensation for such time. Hammond Decl.

¶¶ 72-76.

2. Plaintiffs’ Claims Are Typical of the Class Claims:

The test of typicality is whether other CMs have the same or similar injury, whether the action is

based on conduct that is not unique to the named plaintiff, and whether other CMs have been injured by

the same course of conduct. See Seastrom v. Neways, Inc., 149 Cal. App. 4th 1496, 1502 (2007); 1-3

California Class Actions Practice and Procedure (2007) § 3.02. 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 CMs have been injured by the same course of conduct.”

Seastrom, 149 Cal. App. 4th at 1502. Here, Plaintiffs’ claims are typical of the Class that they seek to

represent because they were subject to the same compensation policies and practices, suffered the same

type of injury, and seek the same types of relief, as the putative class.

4 As to the alternative rest break claim, even if the fixed per-credit compensation is not a piece rate, whether LMU’s policies and/or practices of requiring CMs to be available before and/or after class and to be generally available to students for questions, together with the nature of CMs’ work, which includes students approaching to ask questions during class breaks, impeded CMs from taking off-duty rest breaks for every 3.5 hours of work, is a question is common to the entire Class.

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3. Plaintiffs and Their Attorneys Will Adequately Represent the Class:

“‘Adequacy of representation depends on whether the plaintiff’s attorney is qualified to conduct

the proposed litigation and the plaintiff’s interests are not antagonistic to the interests of the class.’” Caro

v. Procter & Gamble Co., 18 Cal. App. 4th 644, 669, n.21 (1993) (citations omitted). Both elements are

satisfied here. Class Counsel have extensive class action litigation experience. Hammond Decl. ¶¶ 4-10.

Plaintiffs’ Counsel have been appointed class counsel in numerous class action suits and have represented

many instructors in similar unpaid wage cases since 2016. Hammond Decl. ¶¶ 4, 12-18. These lawsuits

include court-approved settlements against Kaplan Higher Education in Hillman v. Kaplan, No. 34-2017-

00208078 (Sacramento Cty. Super. Ct. Dec. 7, 2017), Stanford University in Pereltsvaig v. Stanford, No.

17-CV-311521 (Santa Clara Cty. Super. Ct. Jan. 4, 2019), CSU Fullerton in Garcia v. CSU Fullerton,

No. 30-2017-00912195-CU-OE-CXC (Orange Cty. Super. Ct. Feb. 15, 2019), Concorde Career Colleges

in McCoy v. Concorde, No. 30-2017-00936359-CU-OE-CXC (Orange Cty. Super. Ct. July 2, 2019); and

DeVry University in Stempien v. DeVry University, No. RG19002623 (Alameda Cty. Super. Ct. July 30,

2020). Plaintiffs are committed to representing the interests of the Class, do not have any conflicts with

any CM, and their interests are virtually coextensive with those of the CMs. Id. ¶¶ 3, 13-14.

C. This Class Action Is a Superior Method of Adjudication

Plaintiffs and CMs’ claims are based on Plaintiffs’ contention that Defendant had uniform policies

and/or practices of paying CMs by the piece, paying CMs after their discharge date, and issuing

inaccurate wage statements. All involve common evidence including LMU’s Contracts, academic

calendars, handbooks, compensation policies, payroll calendars, and wage statements. It would thus be

inefficient to resolve these claims at separate trials. See Bufil v. Dollar Fin. Grp., Inc., 162 Cal. App. 4th

1193, 1208 (2008). The class action mechanism in this case will also allow Plaintiffs and CMs to obtain

redress for their relatively small claims, which would otherwise be impractical to litigate on an individual

basis. Id. Once the common underlying issues have been determined on a class-wide basis, Plaintiffs’

damages analysis (see Sav-on Drug Stores, Inc. v. Super. Ct., 34 Cal. 4th 319, 334-35 (2004)) can be

effectively utilized. Therefore, this class action would be a superior method of adjudication compared to

a multitude of individual suits. See Beckstead v. Super. Ct., 21 Cal. App. 3d 780, 783 (1971) (class action

proper when it is more beneficial to litigants and judicial process to try a suit in one action, rather than in

several actions).

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VI. THE COURT SHOULD PRELIMINARILY APPROVE THE SETTLEMENT BECAUSE IT IS FAIR, REASONABLE AND ADEQUATE.

A. The Two Step Settlement Approval Process Court approval of a class action settlement is a two-step process: (1) a preliminary review and

contingent approval by the trial court, and (2) after notice has been distributed to the CMs, a hearing and

a detailed review that includes their responses. Manual for Complex Litigation (Fourth) § 21.6

(“Manual”); Cal. Rules of Court, Rule 3.769(a); Dunk v. Ford Motor Co., 48 Cal. App. 4th 1794, 1800-

01 (1996). Thus, preliminary approval of the settlement is simply a conditional finding that the settlement

appears to be within the range of acceptable settlements. See, e.g., 4 Newberg on Class Actions § 11.25

(4th ed. 2002); North Cnty. Contractor’s Ass’n v. Touchstone Ins. Servs., 27 Cal. App. 4th 1085, 1094-

95 (1994); Manual § 21.6. Applying the criteria for preliminary approval in this case reveals a substantial

basis for granting the preliminary approval this Motion seeks.

B. The Settlement Is Fair and Reasonable

In analyzing whether a settlement is fair and reasonable, courts consider a number of factors: (1)

the strength of the plaintiff’s case balanced against the settlement amount; (2) the risk, expense,

complexity and likely duration of further litigation, the risk of maintaining class action status through

trial; (3) the extent of discovery completed and the stage of the proceedings; (4) the experience and view

of counsel; and (5) the reaction of the CMs to the proposed settlement. Kullar v. Foot Locker Retail, Inc.,

168 Cal. App. 4th 116, 133 (2008) (quoting Dunk, 48 Cal. App. 4th at 1801). Indeed, a settlement is

initially “presumed to be fair” when (1) it “is reached through arm’s length bargaining; (2) investigation

and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced

in similar litigation; and (4) the percentage of objectors is small.” Chavez v. Netflix, Inc., 162 Cal. App.

4th 43, 52 (2008) (quoting Dunk, 48 Cal. App. 4th at 1802).

The settlement here represents 59% of LMU’s realistic exposure (excluding PAGA penalties)

after considering Defendant’s actual and potential defenses on the merits and risks on class certification.

Given the substantial relief obtained for the Class and the uncertainties and delays of litigation, the

settlement meets the criteria for preliminary approval. Hammond Decl. ¶ 79.

1. The Settlement Was a Product of Informed, Non-Collusive Negotiations:

The settlement is the result of hard-fought settlement negotiations between the parties conducted

at arm’s length and informed by substantial factual and legal investigation. Hammond Decl. ¶¶ 24-54.

Throughout this case, CMs have been represented by counsel with extensive experience in employment-

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class-action litigation, and, in particular, wage-and-hour class actions alleging similar types of claims on

behalf of adjunct instructors. Id. ¶¶ 4-18.

Class Counsel have spent a considerable amount of time prosecuting this case, including, but not

limited to, analyzing documents and data produced by Defendant, interviewing CMs, preparing for and

attending a full-day mediation, and negotiating and finalizing the settlement agreement and related

documents. Id. ¶¶ 20-54. An experienced mediator, Lisa Klerman, conducted the mediation session. Id.

¶ 53.

2. The Gross Settlement Amount is Fair and Reasonable Considering the Potential

Recovery and the Risks of Litigating the Case:

Comparison of the extent of the class recovery to the strength of Plaintiffs’ case is the most

important factor in analyzing the fairness of the settlement. Kullar, 168 Cal. App. 4th at 130. The

proposed settlement of $3,400,000 easily passes the Kullar test as it will provide the class with 59% of

the recovery that could realistically be achieved through further litigation.

Waiting Time Penalties: Plaintiffs allege that Waiting Time Penalty CMs were discharged on

the last day of each term, upon completion of their Contract. Hammond Decl. ¶ 60. However, Defendant

failed to pay all wages owed to them on the last day of the term, as required under Code § 201. Rather,

LMU paid according to its regular semi-monthly payroll schedule, which resulted in payments, on

average, seven days late, resulting in waiting time penalties under Labor Code § 203. Plaintiffs calculated

Defendant’s maximum liability for waiting time penalties under this theory (before discounting for risk

factors) as $6,900,915. Id. ¶ 69.

Plaintiffs applied a 10% discount for class certification risk. Hammond Decl. ¶ 70. Plaintiffs

applied a further 50% reduction for LMU’s contention that there was no “discharge” at the end of each

contract under Elliot, 572 F. Supp. 2d at 1176-77 because the employment of the majority of CMs’

continued from term to term, and LMU had a plausible argument that it had a good faith dispute that no

wages were due at the end of each Contract. Nordstrom Com’n Cases, 186 Cal. App. 4th 576, 584 (2010)

(holding that the trial court did not abuse its discretion in discounting the penalties on a § 203 claim

because the defendant could avoid the penalties by showing that a “good faith dispute” existed regarding

the claimed wages). After applying discounts, Plaintiffs determined that LMU’s exposure on the waiting

time penalties claim is $3,105,411. Hammond Decl. ¶ 71.

Inaccurate Wage Statements: Plaintiffs contend that Wage Statement Sub-CMs (i.e., those

employed during the statutory period from May 23, 2018 through preliminary approval), who were non-

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exempt piece-rate employees (until Fall 2019), were entitled to accurate itemized wage statements

containing hours worked and an applicable hourly rate information pursuant to Labor Code §§ 226(a)(2)

and (9). Hammond Decl. ¶ 72. However, Defendant did not include any of these entries on CMs’ wage

statements, other than an arbitrary statement of 20 hours that did not reflect any actual tracking of hours.

Plaintiffs calculated Defendant’s maximum liability on this claim as $1,491,700. Id. ¶ 73.

Plaintiffs applied 10% discount for class certification risk, which was minimal. Id. ¶ 76. Plaintiffs

applied a further 25% reduction for the risk of the Court finding that CMs were exempt; there was no

knowing and intentional violation or injury based on LMU’s good faith defense that CMs were exempt;

or that CMs were salaried non-exempt and thus had no unpaid wage claims because their salaries covered

all work. Id. After applying discounts, Plaintiffs determined that LMU’s exposure on the wage statement

claim is $1,006,898. Id.

Unpaid Wages: Plaintiffs alleged that the Course Rate only covers work defined in the Contracts

as part of the production of the “piece,” but did not cover non-teaching tasks, as well as work performed

prior to the start of each Course (such as preparing syllabi and preparing for the course) because those

tasks were performed before the beginning date of the Contracts and thus not covered by the course pay

in the Contracts. Hammond Decl. ¶ 77. Therefore, CMs are entitled to be paid for these “non-productive

tasks” separately and hourly from their course rate under Labor Code § 226.2; or as non-exempt

employees, CMs are entitled to be paid for the time spent performing tasks that were not included in the

Course Rate under Labor Code § 1194. Id. Plaintiffs calculated Defendant’s maximum liability on this

claim as $3,214,375 before interest. Id. ¶ 80.

Plaintiffs applied a minimal 10% discount to LMU’s maximum exposure for the risk that they

would be unable to certify their claims on the theory that that the salary or the piece included all the

activities performed prior to the Course. Id. ¶ 81. Plaintiffs applied a further 50% discount for LMU’s

arguments that they would lose on the merits because CMs were properly classified as exempt; that the

piece and/or salary covered all the duties, including pre-assignment work; and that Plaintiffs’ damages

analysis is inflated given that most courses are repeat courses taught by experienced faculty and therefore

require little work prior to the first class. Id. ¶ 82. After applying discounts, Plaintiffs calculated that

LMU’s exposure on the unpaid wage claim is $1,446,469. Id.

Rest Break Claims: Plaintiffs allege that Defendant compensates CMs on a piece-rate basis, and

as such was required, but failed, to pay CMs hourly and separately from the piece for the time spent on

rest breaks and other tasks outside the piece at their average hourly rate pursuant to Labor Code § 226.2.

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Hammond Decl. ¶ 83. Therefore, CMs who worked 3.5 hours or more were entitled to hourly and separate

pay for rest breaks.5 Plaintiffs calculated Defendant’s maximum liability on the rest break premium pay

claim as $448,362. Id. ¶ 87.

Plaintiffs discounted Defendant’s maximum exposure for the risk that they would be unable to

certify their rest break claims. On the theory that CMs were piece-rate workers, Defendant could have

argued that whether rest breaks were included in the piece rate would depend on each CM’s

understanding of what the Course Rate covered, and individualized issues would predominate. Plaintiffs

applied a minimal 10% discount for this. On the theory that CMs were entitled to rest breaks as non-

exempt employees, Defendant could have argued that Plaintiffs would be unable to certify a class because

LMU did not maintain rest break records, and some CMs took rest breaks, while others did not. Hammond

Decl. ¶¶ 88-89. Plaintiffs applied a 30% discount for this class certification risk. Hence, Plaintiffs applied

a 20% discount (the average of the two) for the risks of losing on class certification. Id.

As to the merits, Plaintiffs applied a 50% discount for the exemption argument (which would

have eviscerated the Labor Code § 226.2 claim), and that LMU maintained a compliant rest break policy

and CMs could have taken a timely off-duty rest break had they chosen. Hammond Decl. ¶ 90. After

applying discounts, Plaintiffs calculated LMU’s exposure on the rest break claim as $179,344. Id.

PAGA Claims: Plaintiffs calculated Defendant’s maximum liability on their claims under PAGA

using a penalty amount of $100 per pay period (because LMU never received notice from the Labor

Commissioner or the Court so there are arguably no “subsequent” violations). Defendant’s maximum

exposure in PAGA Penalties is $1,491,700 (assuming the Court would not allow “stacking” of PAGA

penalties for each separate Labor Code violation). Hammond Decl. ¶ 91; see Castillo v. ADT, LLC, 2017

U.S. Dist. LEXIS 10579, at *11 (E.D. Cal. Jan. 24, 2017).

Defendant contended that Plaintiffs’ claims for PAGA Penalties would fail for the same reasons

as the underlying Labor Code claims. Further, Defendant argued that the Court here could and would

drastically reduce any award of PAGA penalties as “unjust, arbitrary and oppressive, or confiscatory”

under Labor Code § 2699(i) because it operated in good faith and reasonably believed it was in

compliance with the Labor Code, and in light of the fact that after Plaintiffs filed their lawsuit, it changed

5 As non-exempt employees, CMs are entitled to paid off-duty rest breaks under IWC Wage Order No. 4-2001, § 12, yet Defendant imposed uniform policies and procedures that impeded CMs from taking off-duty 10-minute rest breaks during shifts that were 3.5 hours or longer, including remaining available to students during all scheduled classroom hours. Hammond Decl. ¶ 86. LMU had no policy or practice of paying premium pay for missed rest breaks. Id.

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its compensation practices to bring them into compliance with the Labor Code, including reclassifying

CMs as “non-exempt” employees, requiring them to record their hours, and paying them on an hourly

basis. Hammond Decl. ¶ 92; see Cotter v. Lyft, Inc., 193 F. Supp. 3d 1030, 1037 (2016). Finally, even

though class certification requirements do not apply to PAGA claims, “such claims can be stricken if

they are found to be ‘unmanageable,’” and because only CMs who actually incurred unpaid wages or

unpaid premium pay during a particular pay period could recover PAGA penalties for those violations,

Defendant could have disputed that there is a manageable way to determine who was entitled to such

penalties. Raphael v. Tesoro Ref & Mktg. Co., No. 2:15-CV-02862- ODW, 2015 U.S. Dist. LEXIS

130532, at *5 (C.D. Cal. Sept. 25, 2015); Hammond Decl. ¶ 93.

Defendant’s Total Exposure on All Claims: Plaintiffs calculated the class’s maximum recovery

as $12,055,352 (excluding PAGA penalties). Hammond Decl. ¶ 94. After discounts are considered on

the certification and merits risks applicable to each of Plaintiffs’ claims, as set out above, Defendant’s

realistic liability, considering only the risks and discounts applicable to each of them separately, is

$5,738,122. Id. The settlement agreed to by the parties represents 28% of the Defendant’s maximum

theoretical exposure (with no discounts for any of the risks explained above) and 59% of Defendant’s

realistic exposure after those risks are taken into account. Id. at ¶ 96. This is an excellent result

considering the inherent risks and delays in litigating a class action through judgment and appeal.6

The PAGA Allocation is Fair and Adequate: The $50,000 allocated to PAGA penalties is fair

and adequate. The proposed settlement fulfills PAGA’s purposes as LMU has reclassified CMs. The

Settlement also provides robust relief to the Class, with an average gross payment per Pre-Fall 2019

Semester CM of $2,138. Hammond Decl. ¶ 85. These two factors – relief obtained and the compensation

provided to the Class – are what the courts consider in evaluating the adequacy of a PAGA settlement.

See O’Connor v. Uber Techs., Inc., 201 F. Supp. 3d 1110 (N.D. Cal. Aug. 18, 2016). Finally, the

percentage of the NSA devoted to the PAGA allocation in this case is comparable to the PAGA

allocations that received final approval in very similar wage and hour cases. Hammond Decl. ¶ 81. For

all of these reasons, the $50,000 allocated to PAGA Penalties is adequate and fair.

6 The modest allocation to the approximately 150 Post-Fall 2019 CMs of $200 per person is fair and reasonable, given the high certification and merits obstacles to those claims, and their short duration. See Hammond Decl. ¶ 100.

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3. The Risk, Expense, Complexity and Likely Duration of Further Litigation:

If the parties continued to litigate this case, this Court would rule on class certification.

Whichever of Plaintiffs’ claims cleared that hurdle would proceed to dispositive motions, and whichever

of Plaintiffs’ claims cleared that hurdle, to trial. Regardless of the outcome at trial, the losing party would

likely appeal, given that some of the central legal issues in this case have not been conclusively addressed

by an appellate court. This process would take years to resolve under normal circumstances, and even

longer as a result of the Covid-19 shutdown. Moreover, absent a settlement, LMU’s financial well-being

and viability, just like that of other schools, is threatened by the pandemic, and even if Plaintiffs prevailed,

there is a risk that LMU would ultimately have no money to satisfy a judgment. Hammond Decl. ¶ 102.

The parties strongly disagreed as to the merits of Plaintiffs’ claims, and whether they could certify their

claims. Id. at ¶ 103. Instead, this settlement provides an early resolution of a dispute, and CMs will obtain

a recovery in the relatively near future if the settlement is finally approved. Id. at ¶¶ 104-106.

4. Extent of Discovery Completed and Stage of the Proceedings:

As described in detail in the Hammond Decl. and above, the parties have engaged in extensive

discovery, and were adequately informed to make the decision to settle this case on the proposed terms.

Hammond Decl. ¶¶ 20-54.

5. Views of Experienced Counsel Support the Reasonableness of the Settlement:

Class Counsel has extensive experience in class action litigation, and, in particular wage-and-

hour class actions brought on behalf of adjunct instructors, and have been determined by numerous courts

to be adequate class counsel. Hammond Decl. ¶¶ 4-18. Class Counsel considers the settlement to be fair,

reasonable, and adequate. Id. at ¶ 95. The average gross recovery per Pre-Fall 2019 CM of $2,138 and

average net recovery of $1,348.73 are substantial recovery amounts, and compare favorably with similar

settlements.7 The flat $200 recovery for the Post-Fall 2019 CMs is also fair and appropriate given the

weakness of their claims, which arise from the period after reclassification and after LMU began

including estimate hours, and rates on the wage statements. Id. at ¶ 99.

7 Stempien v. DeVry University, No. RG19002623 (Alameda Cty. Super. Ct. July 30, 2020), Pereltsvaig v. Stanford University, No. 17-CV-311521 (Santa Clara Cty. Super Ct. Jan. 4, 2019), and Garcia v. CSU Fullerton, No. 30-2017-00912195-CU-OE-CXC (Orange Cty. Super. Ct. Feb. 15, 2019)

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6. Reaction of the CMs to The Proposed Settlement:

It is premature to address this factor because notice has not yet been sent out. The settlement,

however, confers substantial benefits on the CMs, and the settlement agreement reasonably tailors each

CM’s claim to the amount he or she will receive. S.A. § 9.1.2.

C. The Proposed Class Notice Content and Procedure Are Adequate

Constitutional due process requires that CMs be provided with notice sufficient to give them an

opportunity to be heard in the proceedings. Mullane v. Central Hanover Bank & Trust, 339 U.S. 306,

314 (1950). Proper notice must provide CMs with sufficient information to make an informed decision

to accept or object to the settlement. Id. at 314; see also Wershba v. Apple Computer, Inc., 91 Cal. App.

4th 224, 251-52 (2001). In the instant case, the proposed Notice meets these standards because it provides

all the information a reasonable person would need to make a fully informed decision about the

settlement. The proposed Notice informs CMs of (1) the material terms of the settlement, (2) the proposed

fees and costs of Class Counsel and for settlement administration, (3) the proposed enhancement award

to the Named Plaintiffs; (4) how CMs may opt out of, or object to, the Settlement; (5) each CM’s proposed

allocation; (6) details about the court hearing on settlement final approval, and (7) how CMs can obtain

additional information. See Cal. Rules of Court, Rule 3.766 and Exhibit A to the SA. Therefore, the

Court should approve the Notice.8

D. The Enhancement Awards to the Class Representatives Are Reasonable

Plaintiffs will request an Enhancement Award of $7,500 for Plaintiff Normand and $2,500 for

Plaintiff Wilson to recognize their time and effort expended on behalf of the Class, and the general release

they are giving Defendant. Hammond Decl. ¶ 112. The requested Enhancement Awards fall well within

the range of incentive payments typically awarded to Class Representatives in similar class actions.9

8 The procedure for distribution of notice meets the standard requiring that the notice has “a reasonable chance of reaching a substantial percentage of the CMs.” Cartt v. Super. Ct., 50 Cal. App. 3d 960, 974 (1975); see also Wershba, 91 Cal. App. 4th at 251. Here, the Notice will be sent by first class mail to the most recent address of each CM. SA § 10.1.3. If a Notice is returned as undeliverable, Simpluris will use skip tracing and resend the Notice if a new address is identified. Id. § 10.1.4. As such, the Notice is likely to reach most, if not all, CMs. Therefore, the Court should approve the procedure/method for distribution of Notice. 9 See Cellphone Termination Fee Cases, 186 Cal. App. 4th 1380, 1393 (2010) (affirming service awards of $10,000); Acheson v. Express LLC, No. 109CV135335 (Santa Clara Cty. Super. Ct. Sept. 13, 2011) (awarding $10,000 service award); Baker v. L.A. Fitness Int'l, LLC, No. BC438654 (Los Angeles Cty. Super. Ct. Dec. 12, 2012) (awarding $10,000 enhancement payments to three of the named plaintiffs); (footnote continued)

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E. The Requested Attorneys’ Fees Are Reasonable

In addition, Plaintiffs’ counsel may request attorneys’ fees of not more than $1,190,000 (i.e., 35%

of the Gross Settlement Amount). SA § 5. This fee amount is fair, reasonable, and the slight increase

from the benchmark of 33.3% typically approved in similar class actions by California courts is warranted

by the outstanding, efficient result obtained for the Class. See, e.g., Laffitte v. Robert Half Internat’l Inc.,

1 Cal. 5th 480, 487, 596 (2016) (affirming a fee award representing 33.3% of the fund).10 Plaintiffs will

also request reimbursement for out-of-pocket litigation costs incurred by Class Counsel up to $25,000.

SA § 5. Plaintiffs are entitled to recover costs reasonably incurred in the prosecution of their claims. See

Labor Code §§ 226(e), 1194.2. If the Court grants preliminary approval, Class Counsel anticipates filing

a Motion for Attorneys’ Fees and Costs that will be scheduled to be heard following the notice process.

Hammond Decl. ¶¶ 107-109.

VII. CONCLUSION

In summary, the settlement provides substantial relief for the Class. The $3,400,000 gross

settlement amount represents 59% of Defendant’s realistic exposure. The settlement is clearly within the

range of acceptable settlements and provides substantial monetary relief to the CMs despite the risks

confronting Plaintiffs in the case. Accordingly, Plaintiffs respectfully request that the Court preliminarily

grant class certification, approve the settlement, and enter an order requiring notice procedures and a final

approval hearing consistent with Plaintiffs’ proposed schedule, as provided for in the proposed Order

Granting Preliminary Approval submitted with Plaintiffs’ Motion.

DATED: August 6, 2020 Respectfully submitted,

HAMMONDLAW, P.C.

Julian Hammond

Attorneys for Plaintiffs and the Putative Class

and Vasquez v. Coast Valley Roofing, Inc., 266 F.R.D. 482, 493 (E.D. Cal. 2010) (approving $10,000 service awards to each plaintiff from a $300,000 settlement fund in a wage/hour class action). 10 The Court need not decide now the amount of attorneys’ fees and expenses or enhancement award to award. Rather, at the current preliminary approval stage, the Court need only satisfy itself that the overall settlement is within a range that could warrant final approval. That standard is met here.

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