Lee R. Feldman, Esq. (SBN 171628) [email protected]...

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DECLARATION OF LEONARD H SANSANOWICZ IN SUPPORT OF PLAINTIFF’S MOTION 1

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Lee R. Feldman, Esq. (SBN 171628) [email protected] Alicia Olivares, Esq. (SBN 181412) [email protected] Leonard H. Sansanowicz, Esq. (SBN 255729) [email protected] FELDMAN BROWNE OLIVARES A Professional Corporation 12400 Wilshire Blvd., Suite 1100 Los Angeles, California 90025 Telephone: (310) 207-8500 Fax: (310) 207-8515 Attorneys for Plaintiff, DAVID L. TOTTEN, and all others similarly situated

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA DAVID L. TOTTEN, an individual, and all others similarly situated

Plaintiffs,

vs. KELLOGG BROWN & ROOT, LLC, a Delaware Corporation; and DOES 1 through 100, inclusive,

Defendants.

CASE NO. 5:14-cv-01766-DMG-DTBx [Case Assigned to the Honorable Dolly M. Gee in Courtroom 8C – First Street] [San Bernardino County Superior Court Case No. CIVDS1408596] DECLARATION OF LEONARD H. SANSANOWICZ IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Before Honorable United States District Judge Dolly M. Gee Hearing Date: TBD Time: TBD Courtroom: 8C (First Street) Notice of Removal Filed: August 28, 2014 Trial Date: June 12, 2018

Case 5:14-cv-01766-DMG-DTB Document 110-2 Filed 06/30/17 of 156 Page ID #:1395

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DECLARATION OF LEONARD H. SANSANOWICZ

I, Leonard H. Sansanowicz, declare:

1. I am an attorney licensed to practice before all courts of the State of

California and the United States District Courts for the Central, Eastern, and Northern

Districts of California. I am Senior Counsel at Feldman Browne Olivares, A

Professional Corporation, counsel for the class action Plaintiff herein, and have

personal knowledge of the facts thereto. If called as a witness, I could and would

competently testify herein.

I. SETTLEMENT DOCUMENTS

2. Attached hereto as Exhibit 1 is a true and correct copy of the Parties’

Stipulation re: Settlement of Class Action (“Settlement” or “Agreement”).

3. Attached hereto as Exhibit 2 is a true and correct copy of the [Proposed]

Order Granting Preliminary Approval, which is Exhibit 1 to the Agreement.


Notice re: Pendency of Class Action and Settlement (“Class Notice,” or “Notice”),

which includes the Claim Form. This is Exhibit 2 to the Agreement.


Order Granting Final Approval of Settlement, which is Exhibit 3 to the Agreement.


Judgment, which is Exhibit 4 to the Agreement.

7. The [Proposed] Order Granting Preliminary Approval is filed

concurrently with this Motion.

II. ADDITIONAL DOCUMENTS

8. Attached hereto as Exhibit 6 is a true and correct copy of Neil Gorsuch

Often Sided With Employers in Workers’ Rights Cases, The Denver Post, Feb. 27,

2017, available online at http://www.denverpost.com/2017/02/27/neil-gorsuch-

workers-rights-cases/.

9. Attached hereto as Exhibit 7 is a true and correct copy of a letter from


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National Employment Lawyers Association to the Senate Judiciary Committee

regarding Justice Gorsuch’s nomination, dated March 13, 2017.

10. Attached hereto as Exhibit 8 is a true and correct copy of Amy Howe,

Murphy Oil’s Law: Solicitor General’s Office Reverses Course in Arbitration Cases,

Supports Employers, SCOTUSblog, June 19, 2017, available online at

http://www.scotusblog.com/2017/06/murphy-oils-law-solicitor-generals-office-

reverses-course-arbitration-cases-supports-employers/#more-257105.

III. SETTLEMENT TERMS

11. The following is a summary of the key terms of the Settlement:

a. The proposed “Settlement Class” is comprised of all non-exempt

construction workers of Defendant Kellogg Brown & Root, LLC who

worked in California at the Molycorp Mountain Pass rare earth

facility (in San Bernardino, CA) at any time from June 16, 2010,

through the date of Preliminary Approval, who do not properly

request to exclude themselves from the settlement. (Settlement,

Section VI, ¶1.35).

b. Defendant shall pay a gross amount of $3,750,000. This

Maximum Settlement Amount (“MSA”) includes payments made to

Participating Class Members, settlement administration costs, awards

of attorneys’ fees and costs, the Class Representative Enhancement

for Plaintiff, employer and employee payroll taxes on the portion of

the settlement payments to Participating Class Members deemed as

wages, and payment to the California Labor and Workforce

Development Agency (“LWDA”). (Settlement, Section VI, ¶1.18).

c. There are 847 Members who worked a combined 19,304

workweeks, for an average of 22.79 workweeks. (Settlement, Section

VI, ¶¶1.4, 1.18).

d. Putative Class Members who submit claim forms and do not opt


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out of the settlement will be referred to as Participating Class

Members or Participaing Claimants. (Settlement, Section VI, ¶1.26).

e. The sum available for use for payments to Participating Class

Members after settlement administration costs, awards of attorneys’

fees and costs, the Class Representative Enhancement to Plaintiff, and

the PAGA payment to the LWDA is designated in the Agreement as

the Maximum Settlement Portion for Payments to Participating

Claimants (“MSP”), with a portion designated and taxed as wages.

(Settlement, Section VI, ¶¶ 1.19, 2.52).

f. Defendant will pay at least 50% of the MSP to Participating Class

Members, up to $2,666,000. Unclaimed funds revert to Defendant.

(Settlement, Section VI, ¶¶ 1.19, 2.52, 2.6.2).

g. Each Participating Class Member will receive a proportionate

share of the MSP equal to (i) the number of workweeks he or she

worked, mutiplied by (ii) the quotient of the MSP divided by the total

number of workweeks worked by all Participating Class Members.

(Settlement, Section VI, ¶¶ 1.36, 1.37, 2.1.2, 2.1.3).

h. Subject to Court approval, Plaintiff shall be paid a Class

Representative Enhancement not to exceed $20,000 for his time and

effort in bringing and presenting the action, and in exchange for a

general release of all claims, known or unknown, as well as a

dismissal of the charge he filed with the National Labor Relations

Board (“NLRB” or “Board”) related to this case in which he

challenged the arbitration agreement and class action waiver and

prevailed. (Settlement, Section VI, ¶¶1.18, 2.8.2).

i. Subject to Court approval, Plaintiffs’ Counsel shall receive an

award of attorneys’ fees in an amount not to exceed $937,500.00,

representing 25% of the MSA, and costs in an amount not to exceed


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$21,500. (Settlement, Section VI, ¶¶1.18, 2.8.1).

j. Subject to Court Approval, $100,000 of the MSA shall be

allocated to settlement of PAGA claims – 75% of which shall be paid

to the LWDA and 25% of which shall be part of the MSP distributed

to Participating Class Members. (Settlement, Section VI, ¶1.18).

k. The Parties have agreed to the appointment of Rust Consulting,

Inc. (“Rust”) as the Class Administrator. This Claims Administrator’s

costs will be paid out of the MSA and, in the event the Class

Administrator is awarded less than requested, shall be redistributed

pro-rata to class members. (Settlement, Section VI, ¶¶1.3, 1.18).

l. Employer and employee taxes will be deducted from the wage

portion (25%) of the MSP (the remaining 75% is deemed payment for

penalties, liquidated damages, and interest). Participating Class

Members shall be responsible for any tax liability, if any, on the non-

wage portion of their respective Settlement Sums (i.e., the total, gross

amount due to an individual Participating Claimant). (Settlement,

Section VI, ¶¶1.27, 2.1.1, 2.2.1).

m. Settlement Class Members release all claims related to the claims

in this action, including an allegation of failure to provide rest periods

or pay rest period premiums, arising from the class members’

employment in California during the Class Period (June 16, 2010,

through the date of Preliminary Approval), except Settlement Class

Members who do not submit claim forms and become Participating

Class Members will not be deemed to have released claims arising

directly under the Fair Labor Standards Act (“FLSA”). (Settlement,

Section VI, ¶¶1.34, 1.42, 2.7.1).

n. The Released Claims include any known or unknown claims

under state or federal law, for wages, damages, unpaid costs,


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penalties, liquidated damages, punitive damages, interest, attorneys’

fees, litigation costs, restitution, or equitable relief, that arose from

Defendant employing the Class Members in California, and is

intended to bind all Class Members who do not opt out of the

Agreement. (Settlement, Section VI, ¶¶1.34, 1.35, 1.42).

o. Subject to Court approval, the Claims Administrator shall

perform, without limitation, the following duties: (a) using the data

provided by Defendant to prepare the Class Notice; (b) utilizing the

U.S. Postal Service’s National Change of Address Database

(“NCAD”) to review the accuracy of Class Members’ mailing

addresses and updating addresses where possible (“Reasonable

Address Verification Measure”); (c) mailing the Settlement

Documents to Class Members by First Class U.S. Mail;

(d) undertaking another Reasonable Address Verification Measure for

any returned mail from the initial mailing; (e) undertaking a

Secondary Address Verification Measure (updating addresses through

standard skip trace) to search for addresses unavailable through the

NCAD; (f) one-time remailing of undelivered notices from the initial

mailing; (g) tracking returned Requests for Exclusion, Objections or

work week disputes; (h) notifying Defendant and Class Counsel of

timely and untimely exclusions, objections or work week disputes; (i)

sending a reminder postcard and a text message to Class Members

who have not responded by 30 days before the Response Deadline; (j)

sending a “cure letter” to Class Members who have submitted both an

Opt Out Form and a Qualifying Claim Form; (k) calculating the

amounts due to each Class Member pursuant to the Settlement;

(l) notifying Defendant and Class Counsel of any disputes regarding

claims by the Class Members; (m) allowing Defendant and Class


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Counsel to comment on any disputes regarding claims by the Class

Members, and making a final conclusion which the Parties agree to

treat as determinative, provided it is consistent with pertinent law; (n)

preparing and mailing all settlement checks and tax forms to

Qualified Claimants by First Class U.S. Mail; (o) paying the

Enhancement Award approved by the Court; (p) paying Class

Counsel the fees and costs approved by the Court; (q) paying the

Claims Administrator’s fees approved by the Court; and (r) paying

the LWDA the portion of PAGA penalties due to the State.

(Settlement, Section VI, ¶¶1.33, 1.43, 2.4.1, 2.4.2, 2.4.4, 2.4.6, 2.4.7,

2.4.8, 2.5.5).

p. The Claims Administrator will provide to Class Counsel and to

Defendant’s Counsel the number of Class Members who (a) object to

the Settlement, (b) request exclusion from the Settlement, or (c)

otherwise express any opposition to the Settlement, on a reasonable

basis. The Claims Administrator also shall provide the Court a

declaration of due diligence at least ten (10) calendar days prior to the

Final Approval Hearing date detailing the Claims Administrator’s

mailing of the Class Notice, its attempts to locate Class Members, the

number of Class Members for whom the Notice was ultimately

undeliverable, and the final participation, objection, and Opt-Out

rates. (Settlement, Section VI, ¶2.9.2).

q. Participating Class Members who wish to opt out of or object to

the settlement will have 60 days from the mailing of the Class Notice

to postmark a Request for Exclusion from, or objection to, the

Settlement. (Settlement, Section VI, ¶¶1.23, 2.5.1, 2.5.4).

IV. THE CLASS

12. Plaintiff seeks to represent all non-exempt construction workers of


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Defendant Kellogg Brown & Root, LLC (“Defendant” or “KBR”) who worked in

California at the Molycorp Mountain Pass rare earth facility (in San Bernardino, CA)

at any time from June 16, 2010, through the date of Preliminary Approval, who do not

properly request to exclude themselves from the settlement (“Class Members”).

13. According to the data provided and representations made by Defendant,

there are 847 Class Members who worked a total of 19,304 workweeks during the

relevant time period. The average regular hourly rate of pay was $24.36 per hour.

14. KBR contracted to build a salt recovery plant at the mountaintop facility,

and Plaintiff and others similarly situated worked there from the time construction

began in 2011 until the end of the project in January 2014 (with the majority of the

work performed in 2012 and 2013).

V. CLASS CLAIMS

15. Plaintiff alleges, among other things, that Defendant failed to pay

compensable drive time, failed to pay overtime premium pay for overtime hours

worked as a result of unaccounted for drive time, and failed to provide meal and rest

periods. Defendant denies these allegations and all others asserted in this action.

16. Plaintiff alleges Defendant required its workers to park their vehicles in a

designated parking area and take Defendant-owned and -operated vehicles from the

parking area to and from the work site (with no other access to the work site aside

from Defendant’s vehicles), yet Defendant did not pay for this travel time. Plaintiff

further alleges that because KBR only paid for the workers’ scheduled 10-hour shifts

and not the drive time, it failed to pay overtime or provide second meal periods or

third rest periods. Plaintiff also alleges that because Defendant failed to account for

the drive time workers spent in the mornings, and because all workers were sent to

work exactly five hours after the start of their scheduled shifts (11:30 a.m. when the

shift started at 6:30 a.m. or 12:00 p.m. when the shift started at 7:00 a.m.), Defendant

failed to timely provide first meal periods, as well.

17. The statutory and civil penalties are derivative of these claims.


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VI. INVESTIGATION AND EXCHANGE OF INFORMATION

18. Over the course of the litigation, I conducted extensive investigation into

the claims asserted in this case. That investigation included the review, analysis and

statistical sampling of numerous records and other documents, and research and

evaluation of claims and defenses. That investigation also included personal

interviews of Class Members regarding the claims alleged by Plaintiff.

19. Defendant's counsel and I have worked cooperatively regarding extensive

document and data productions sufficient for both sides to fully evaluate this case.

This included the following informal exchange of information:

a. Payroll data for 137 Class Members from the four largest of the

fourteen work crews on the Molycorp project, for eight randomly

selected weeks from September 2011 through May 2013 (this

accounted for 5,565.70 workweeks, or 28.83% of total workweeks);

b. Handwritten time sheets reflecting the 137 Class Members

scheduled shifts for the same weeks;

c. Documents related to morning meetings all workers were required

to attend at which certain policies were discussed;

d. KBR’s attendance policy.

20. In addition, Defendant took Plaintiff’s deposition (which I defended), and

I deposed Randy Bynum, KBR’s Senior Account and Finance Manager, who oversaw

payroll functions for the Molycorp project. Attached hereto as Exhibit 9 is a true and

correct copy of the relevant portions of the Bynum deposition transcript. Attached

hereto as Exhibit 10 is a true and correct copy of the relevant portions of Plaintiff’s

deposition transcript.

21. Randy Bynum testified that: KBR required its workers to park their

vehicles at a designated parking lot down the mountain from the work site; there was

just a single access road from the parking lot to the work site; workers were not

allowed to walk or ride a bicycle up the access road; the only way to access the work


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site was to take buses, shuttles, or pickup trucks owned and operated by KBR; if a

worker tried to go up the access road on his own he would be disciplined; and that

workers were required to clock in before they boarded the KBR vehicles to go up the

mountain and did not clock out again until after the KBR vehicles had transported the

workers back down to the employee parking lot. (Bynum Depo 46:15-47:5, 48:6-19,

49:6-9).

22. Bynum further testified that workers’ times did not start (for payroll

purposes) until the start times of their shifts, either 6:30 a.m. or 7:00 a.m., and that

KBR did not pay for any of the drive time because the workers were not actually

working during that time. (Bynum Depo 57:14-22, 143:2-23, 163:21-164:2).

23. Bynum testified that Class Members were required to punch in and out at

a time clock next to the designated parking area (as opposed to at the work site at the

top of the mountain, where there were no time clocks), and that he forwarded the

punch data from the time clocks to KBR corporate offices in Houston, Texas.

However, defense counsel has represented that the punch data no longer exists.

(Bynum Depo 103:22-105:5).

24. Bynum also testified that he forwarded payroll data from the Molycorp

project to corporate offices in other states during the time period of November 2013

through January 2014. (Bynum Depo 203:10-21).

25. Defense counsel represented (and Bynum confirmed at deposition) that

there were no written wage and hour policies for the Molycorp project. Bynum further

testified that there were no meal period waivers or on-duty meal period agreements on

file for any of the workers, and that KBR never provided second meal periods if

workers worked more than ten hours, nor did it pay meal period premium pay. He also

testified that that lunch started at the same time for all workers, either 11:30 a.m. when

the shift started at 6:30 a.m. or 12:00 p.m. when the shift started at 7:00 a.m., and that

workers were required to eat at a designated area that took time to walk to and from

the workers’ workstations, yet Defendant expected all workers to return to their work


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stations and be ready to start working 30 minutes after the start of the meal period, and

automatically deducted 30 minutes for lunch from each worker’s daily hours. Bynum

also was unaware of any policy to grant a third rest period for workers who worked

more than ten hours. (Bynum Depo 42:17-43:6, 43:7-19, 45:20-46:4, 59:15-18,

137:14-138:8, 138:10-19).

26. Bynum also testified that there were 400-450 workers at the work site in

any given workweek (average of 425 workers per week). (Bynum Depo 49:13-21).

27. Our office called and spoke with each of the 137 Class Members whose

contact information Defendant provided, including those for whom we had to find

updated phone numbers or make several phone calls to reach. We also obtained six

declarations regarding the alleged violations, including a declaration from Billy King,

the KBR Project Manager for the Molycorp project from September 2011 until March

2013 who was responsible for overseeing all aspects of the project during that time.

28. Plaintiff testified that in addition to his job duties as a rigging foreman he

also drove a company bus or shuttle regularly, and that he and the workers he drove

experienced frequent delays while driving the access road due to detours, traffic, or

blasting on the mountain, in addition to having to wait for workers to board the bus at

at the work site, before driving down, the end of the day. Plaintiff estimated it took

between 15 and 35 minutes to get down to the parking area from the work site,

depending on the delays. He also testified that there were three school buses and two

shuttle buses to transport the estimated 425 workers up and down the mountain each

week (buses held 55 people, shuttles held 24 people). (Totten Depo 38:7-8, 65:8-66:5,

67:25-68:3, 71:18-24, 84:7-25).

29. It is my opinion that the substantial exchange of information and other

investigation that took place in this case was more than adequate for both sides to fully

assess their respective positions.

VII. LEGAL RESEARCH AND ANALYSIS

30. I conducted substantial legal research on the significant issues involved


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in this litigation, including spending considerable effort staying apprised of appellate

determination on the issues related to this matter.

VIII. POTENTIAL RECOVERY/REASONABLE ANALYSIS

31. Based on my investigation, research and analysis, and my experience in

this type of litigation, it is my opinion that, if litigated to judgment, Plaintiff is likely

to prevail on at least some (and potentially all) of the major issues in the case and has

a strong likelihood of obtaining class certification on all of Plaintiff's claims.

32. Nevertheless, significant legal uncertainties exist in cases such as this

one, as they can be factually complex and require protracted litigation to resolve.

Defendant has vigorously contested and continues to contest liability for the claims

asserted in the action. Although Defendant believes that class certification would be

unlikely on such claims, it nevertheless agreed to attempt resolution of the case

through mediation to avoid the expense, distraction and uncertainty of protracted

litigation.

33. Most importantly in this case, the United States Supreme Court has

granted certiorari on a trifecta of cases (NLRB v. Murphy Oil USA, Inc. (5th Cir.), Epic

Systems v. Lewis (7th Cir.), Ernst & Young, LLP v. Morris (9th Cir.)) that will be

heard in one argument in the upcoming term regarding an issue that this Court has

already ruled on: whether an employer may enforce a class action waiver and compel

bilateral arbitration with the employee who signed the agreement as a condition of

employment. This Court, and the U.S. Court of Appeals for the Ninth Circuit, has

found that such waivers violate employees’ substantive right to engage in concerted

activity codified in Section 7 of the National Labor Relations Act and are not

preempted by the Federal Arbitration Act. However, if the Supreme Court reverses the

findings of this Court and of the Ninth Circuit it would eviscerate this class action,

reducing it it a PAGA-representative action, and the Class Members potentially would

not recover nearly as much as they could in the class action context.

34. Thus, Plaintiff and his counsel concluded that it was reasonable to enter


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into the proposed settlement.

35. In order to assess the likelihood of recovery, Plaintiff made the following

determinations based on the data produced:

a. Average of 425 workers per workweek (400-450/week, per

Bynum)

b. Average of 5.47 workdays per week of shifts of 9.1 hours (based

on payroll data produced)

c. Regular rate of pay: $24.36/hr (stipulated); overtime rate: $36.54

(1.5x regular rate); double time (2.0x regular rate): $48.72

d. Average of 40 minutes of unpaid daily overtime hours in

compensable travel time (at least 15 minutes in either direction plus

10 minutes, on average, for delays or for workers who were

incentivized to arrive especially early for their shifts – based on

Plaintiff’s testimony and five Class Member declarations)

e. Number of workweeks in the revelant time period: 126 (August 1,

2011, through December 31, 2013)

f. The following chart reflects the number of days reported (1,494

workdays) at various hourly shifts, plus their percentage of the whole:

15 hr 14 hr 13 hr 12 hr 11 hr 10 hr 9 hr 8 hr 7 hr 6 hr 5 hr 4 hr 3 hr 2 hr

1 4 11 91 75 930 42 135 1 36 8 47 6 102

0.07% 0.27% 0.74% 6.11% 5.04% 62.46% 2.82% 9.07% 0.07% 2.42% 0.54% 3.16% 0.40% 6.85%

g. For purposes of calculations, shifts of fewer than 6 hours were

attributed either to reporting time (“show up time”) pay, or to

inclement weather/half-days (where drive time may have been

accounted for differently), or as de minimus (e.g, 5-hour shifts).

h. Double time: The records show Defendant failed to pay double

time rate for all reported shifts over 12 hours (16 of the 1,494 days, or


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1.07% of the time), instead paying the overtime rate. The difference

between the overtime rate and the double time rate is $12.18 per hour.

///

36. With that in mind, the following are Plaintiff’s calculations regarding

potential recovery for each of the major claims in this case:

a. Drive time/overtime claims. Assuming an average of 40 minutes

(2/3 of an hour) daily of unpaid compensable drive time, and that

over 86% of all workdays would incur overtime hours as a result of

adding the unpaid travel time (based on the above chart), Plaintiff

calculates:

i. For shifts of 6-7 hours: 2/3 add’l hr x $24.36 (regular rate)

x (425 x 2.49%) x 126 weeks in the class period = $16.24 x

10.5825 x 126 = $21,654.33

ii. For shifts of 8-11 hours: 2/3 add’l hr x $36.54 (OT rate) x

(425 x 79.39%) x 126 weeks in the class period = $24.36 x 337

x 126 = $1,034,374.32

iii. For shifts of 12 or more hours: 2/3 add’l hr x $48.72

(double time rate) x (425 x 7.19%) x 126 weeks in the class

period = $32.48 x 31 x 126 = $126,866.88

iv. Additional adjustment for shifts of 12 or more hours:

$12.18 x (425 x 1.07%) x 126 = $12.18 x 5 x 126 = $7,673.40

v. Thus, Plaintiff’s calculation of the total estimated potential

recover for drive time/overtime claims is $21,654.33 +

$1,034,374.32 + $126,866.88 + $7,673.40 = $1,190,568.93.

b. Meal periods. Because Class Members had to spend at least some

time on travel time in the morning that was not accounted for, and

because all workers were instructed to take first meal periods exactly

five hours after the start of their shift, Plaintiff contends this


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necessarily meant that KBR failed to provide a meal period before the

start of the sixth hour of work. The data shows Class Members had to

work at least six hours 89.05% of the time. Plaintiff thus calculates

the meal period compensation as: $24.36 x (425 x 89.05%) x 5.47

days x 126 workweeks = $6,354,157.99.

c. Rest periods. Because of the unaccounted travel time, Plaintiff

contends that any Class Members who worked shifts of at least 10

hours were entitled to a third rest period. The data reflects Class

Members worked shifts of 10 hours or more 74.69% of the time.

Thus, Plaintiff calculates calculates the rest period compensation as:

$24.36 x (425 x 74.69%) x 5.47 days x 126 workweeks =

$5,329,500.96. However, this claim must be discounted as the Court

never granted Plaintiff leave to amend his complaint to include rest

period claims.

d. Total recovery: Plaintiff calculates Class Members’ total potential

recovery of the damages portion as $1,190,568.93 + $6,354,157.99 +

$5,329,500.96 = $12,874,227.88.

37. Statutory penalties. Statutory penalties for wage statement violations and

“waiting time” are derivative of the above violations and therefore speculative for the

above reasons and because Plaintiff would have to establish “willful” conduct and/or

injury to Class Members to recover. However, Plaintiff asserts a separate stand-alone

basis for the wage statement claim, based on Bynym’s testimony, that Defendant

failed to maintain copies of wages statements on file “for at least three years at the

place of employment or at a central location within the State of California.” Cal. Lab.

Code §226(a). Plaintiff calculates these penalties as follows: Plaintiff filed this action

on June 16, 2014. One year prior is June 16, 2013. Defendant paid its workers on a

weekly basis. There were 28 weeks between June 16 and December 31, 2013. Thus, at

$50 per employee for the first violation and $100 per employee for each subsequent


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violation, Plaintiff calculates wage statement penalties as: 425 x $2,750 = $1,168,750.

If waiting time penalties could be obtained, the calculation would be: 847 employees x

[(8 x $24.36) regular hours + (1.1 x $36.54) overtime hours] daily rate x 30 days =

847 x ($194.88+$40.19) x 30 = 847 x $235.07 x 30 = $5,973,128.70.

38. The $3,750,000 settlement, then, represents 29.12% of the major

damage components Plaintiff alleges in this matter, 49.70% if the rest period claim is

excluded. (This amount does not include PAGA penalties because penalties are

discretionary with the Court, thereby making any assessment of such damages highly

speculative.) The Maximum Settlement Amount is eminently reasonable in light of the

great risks involved in this case.

39. I am convinced that the proposed Settlement is in the best interest of the

class based on the negotiations and a detailed knowledge of the issues present in this

action. The settlement amount is, of course, a compromise figure. Plaintiff took into

account the risks related to proving his claims and the strengths and weaknesses of

Defendant’s other defenses. He also considered the possibility that if a settlement were

reached after additional years of litigation, the great expenses and attorneys' fees of

litigation would reduce the amount of funds available to Class Members for

settlement. In addition, the prospect of a potentially fatal Supreme Court ruling, class

certification issues as well as the uncertainty of class certification, the difficulties of

complex litigation, the lengthy process of establishing specific damages and various

possible delays and appeals, were also carefully considered by Class Counsel in

agreeing to the proposed Settlement. In light of the above, the proposed Settlement is

well within the “ballpark” of reasonableness and should be granted preliminary

approval.

///

IX. FAIR AND REASONABLE SETTLEMENT PROCESS

40. This case was settled through arm’s-length negotiation. Class Counsel

submits that the settlement for each participating Class Member is fair, reasonable,


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and adequate given the inherent risk, cost and length of litigation. The amount

recoverable for each Class Member as set forth in the Memorandum of Points and

Authorities, is fair and reasonable based in a review of all objective evidence. The

settlement that has been reached, subject to this Court’s approval, is the product of

tremendous effort, and a great deal of expense by the Parties and their counsel.

41. On April 6, 2017, the Parties participated in a full day mediation session

with mediator David Rotman in San Francisco, which I attended, and reached this

Settlement with his assistance two weeks later. Prior to mediation, Defendant

provided Class Counsel informal discovery and engaged in numerous conferences

through counsel with Class Counsel. At all times, the Parties’ settlement negotiations

have been non-collusive, adversarial, and at arm’s length.

X. CLASS CERTIFICATION FACTORS

42. Numerosity: The settlement class consists of 847 total identified class

members. Thus, the requirement of numerosity is easily met because joinder of 847

individuals into a single case is otherwise impracticable in light of the circumstances

of this case.

43. Typicality: The claims of the class representative are typical of the claims

of the class members as a whole. The named Plaintiff suffered the same alleged

violations (e.g. off-the-clock drive time, unpaid overtime, failure to provide meal and

rest periods, paystub violations, and failure to pay all wages due at termination) as the

class as a whole did and, thus, Plaintiff’s claims fairly represent the claims of the class

as a whole. Nor does Plaintiff allege any claims or facts unique to himself. Thus, this

requirement is satisfied.

44. Adequacy: Plaintiff has proven to be an adequate class representative.

He has conducted himself diligently and responsibly in representing the class in this

litigation, understands his fiduciary obligations, and has actively participated in the

prosecution of this case. Plaintiff has spent hours in meetings and conferences with

counsel to get a better understanding of his work environment and requirements,


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provided needed information for settlement discussions, and approved the settlement

on behalf of all class members. Further, Plaintiff has no interest that is adverse to the

interests of the other class members. Proposed class counsel also is adequate to

represent the class for settlement purposes, for reasons articulated below.

45. Commonality. Many common issues of law and fact unite the class. The

common questions of law and fact include, but are not limited to:

a. Whether Defendant violated California Labor Code sections 1194 and 1197 by not paying employees’ wages at least at a minimum wage rate for time that Class Members were subject to Defendants’ control but were not paid;

b. Whether Defendant violated California Labor Code sections 510 and 1194 by not paying Class Members at the applicable overtime rates of pay for workdays worked in excess of eight hours as a result of not paying Class Members for all hours worked in a workday;

c. Whether Defendant violated California Labor Code sections 512 and 226.7, as well as the applicable Wage Order, by employing Class Members without providing all their required meal periods or paying meal period premium wages;

d. Whether Defendant violated California Labor Code section 226.7 and the applicable Wage Order by employing Class Members without providing all their required rest periods or paying rest period premium wages;

e. Whether Defendant failed to provide Class Members with accurate itemized statements;

f. Whether Defendant failed to provide Class Members with all unpaid wages within the statutory time period following separation of employment;

g. Whether Defendant committed unlawful business acts or practices within the meaning of Business and Professions Code section 17200 et seq.;

h. Whether Class Members are entitled to unpaid wages, penalties, interest, fees and other relief in conjunction with their claims;

i. Whether, as a consequence of Defendant’s unlawful conduct, Class Members are entitled to restitution, and/or equitable relief;

j. Whether Defendant’s affirmative defenses, if any, raise any


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common issues of law or fact; and

k. The appropriate amount of PAGA civil penalties.

46. Superiority: A class action is superior to other available means for the

fair and efficient adjudication of this controversy. Joinder of all members of the

proposed class is impractical. Class treatment will permit a large number of similarly-

situated persons to prosecute their common claims in a single forum simultaneously

for settlement purposes without the unnecessary duplication of effort and expense that

numerous individual actions would engender.

XI. EXPERIENCED AND QUALIFIED COUNSEL SUPPORT THE

SETTLEMENT

47. Experienced counsel, operating at arms-length, have weighed the

strengths of the case and examined all of the issues and risks of litigation and endorse

the proposed settlement. Both Plaintiff’s and Defendant’s counsel are experienced in

employment, wage and hour, and class action matters.

48. Lee R. Feldman is a partner and principal of Feldman Browne Olivares,

APC. Mr. Feldman graduated from Emory University and then from the Boston

University School of Law in 1991. He was admitted to the State Bar of Pennsylvania

in 1991 and briefly practiced labor and employment law in Philadelphia before

moving to Los Angeles in 1994, upon being admitted to the California Bar.

49. Mr. Feldman has practiced employment law and has been trying

employment cases in California for more than 20 years and has been recognized over

the years as among the top employment lawyers in California. In each of the last four

(4) consecutive years, he has been named to the Daily Journal’s annual list of Top

Labor & Employment Lawyers in California, which typically includes just 15-25

plaintiff’s-side lawyers. Additionally, in each of the past eleven (11) consecutive

years (2007-2017) he has been selected by the publishers of Law and Politics and

Super Lawyers Magazine as a Southern California Super Lawyer. The Super Lawyer

distinction is awarded to only 5% of Southern California lawyers and was based on a

survey of 80,000-plus attorneys asked to name the best lawyers in Southern


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California. He also was named to the past five (5) consecutive (2013- 2017) editions

of Best Lawyers in America. This publication has been described by The American

Lawyer magazine as “the most respected referral list of attorneys in practice.” Best

Lawyers is published by Woodward/White, Inc., based on exhaustive evaluations by

more than four million lawyers across the country.

http://www.bestlawyers.com/about/MethodologyBasic.aspx.

50. Further, in 2014, 2015, 2016 and 2017, Feldman Browne Olivares, APC,

was named by U.S News & World Report’s Best Law Firms in America publication as

one of the best Labor & Employment firms. The firm was awarded US News’ highest

“Tier 1” rating. All of Feldman Browne Olivares’ partners and six (6) of their

associates have also been named Super Lawyers or Rising Stars.

51. Mr. Feldman has served as lead counsel on the following wage and hour

class actions: Noe v. Superior Court (AEG/Levy), 237 Cal.App.4th 316 (2015)

(settlement on theories of joint employer liability for unpaid wages and willful

misclassification under Section 226.8 and PAGA), which resulted in a settlement of

$8,000,000 and a published opinion that advanced employee rights in California; and

against such employers as AT&T (the first CFRA/FMLA class action brought on

behalf of employees from whom private medical information was demanded and who

were fired in violation of the California Family Rights Act), resulting in a settlement

of $6,800,000; A Place For Mom (class of nursing home placement consultants denied

overtime, minimum wage), resulting in a settlement of $1,800,000; NTL Trucking

(intrastate truck drivers denied overtime and meal breaks), resulting in a settlement of

$1,500,000; Hawaiian Gardens (casino workers whose tips were taken and given to

managers), resulting in a settlement of $1,500,000; Shield Security (security guards

denied off duty meal breaks), resulting in a settlement of $1,000,000; Barney’s

Beanery (waitresses denied meal breaks), resulting in a settlement of $900,000; and

Allied Beverages (drivers denied overtime), resulting in a settlement of $875,000.


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52. I received my Juris Doctor from Loyola Law School in 2007 and was

admitted to the California bar in May 2008. While in law school, I completed

externships at the Office of the City Attorney of Los Angeles, the Los Angeles District

Attorney's Office, and the United States Attorney's Office, Central District of

California. As a certified law clerk at the U.S. Attorney's Office, I successfully

prosecuted a misdemeanor trial as the lead trial attorney, obtaining a sentence from the

U.S. Magistrate Judge. As a certified law clerk at the District Attorney's Office, I

personally conducted over a dozen preliminary hearings and sat second chair for a

felony trial that resulted in conviction. While at the City Attorney's Office, I assisted

in trial preparation and sat second chair in a civil lawsuit the City successfully

defended. Also while in law school, I was a member of the prestigious Byrne Trial

Advocacy Team, which consistently is considered one of the nation's top law school

mock trial advocacy teams by the U.S News & World Report's Annual Ranking, and

was a Senior Articles Editor of the Loyola of Los Angeles Law Review, where a

contributing professor noted her “appreciation to Leonard H. Sansanowicz for

editorial suggestions.” See Loyola of Los Angeles Law Review, Volume 40, Number

1, available at

http://digitalcommons.lmu.edu/do/search/?q=author_lname%3A%22Russell%22%20a

uthor_fname%3A%22Irma%22&start=0&context=1609392 (last viewed January 5

2016).

53. Since becoming an attorney, I have practiced exclusively in the area of

employment law, representing plaintiffs in individual and multi-plaintiff wage and

hour actions, state and federal class, collective, and representative actions, wrongful

termination, discrimination, harassment and retaliation cases.

54. Immediately prior to and upon passing the bar exam, I worked for three

and one-half years as a law clerk and associate to Steven G. Pearl of The Pearl Law

Firm. Mr. Pearl is a recognized authority in the area of wage and hour law who has

been recognized as a SuperLawyer both as an attorney and as a mediator, and is an


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Advisor and former Executive Committee Member of the State Bar Labor and

Employment Law Section. Together with Mr. Pearl, I co-authored a chapter on the

Fair Labor and Standards Act in a practice guide published by the National

Employment Lawyers Association and Lexis Nexis’s Matthew Bender series. During

my time with The Pearl Law Firm, I tried four bench trials on my own, and sat second

chair for a jury trial and two other bench trials, all in the wage and hour context.

55. Following The Pearl Law Firm, I was an associate with Lavi &

Ebrahimian, LLP for approximately two and one-half years, where I handled

numerous cases in all aspects of employment law, including individual and multi-

plaintiff wage and hour actions, state and federal class actions, wrongful termination,

discrimination, harassment and retaliation cases. During my time at Lavi &

Ebrahimian, LLP, I was lead (and sole) trial counsel in two jury trials, both of which

resulted in 12-0 verdicts in favor of my clients: Arrellano v. The Castle Valet Car

Wash, Inc., et al., Orange County Superior Court Case No. 30-2009-00116989 (2013),

and Hernandez v. Headquarters Marketing, Inc., et al., Los Angeles Superior Court

Case No. BC443589 (2012).

56. Also during my time at Lavi & Ebrahimian, LLP, I handled wage and

hour class actions against such employers as: Option One Home Medical Equipment,

Inc., which settled for $3,000,000; Burrtec Waste Group, Inc., which settled for

$2,789,000; Trojan Battery Co., Inc., which settled for $850,000; Packaging

Dynamics Corporation, which settled for $625,000; Famsa, Inc., which settled for

$602,000; Juicy Couture, Inc., which settled for $520,000; CR&R Inc., which settled

for $350,000; Exopack-Ontario, Inc., which settled for $350,000; Visterra Credit

Union, which settled for $325,000; BHFC Operating, LLC, which settled for

$315,000; Philatron International, Inc., which settled for $250,000; United Natural

Foods West, Inc., which settled for $250,000; and TeamOne Employment Specialists,

LLC, which settled for $220,000.

57. Since joining Feldman Browne Olivares, APC, in January, 2014, I have


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continued to handle numerous cases in all aspects of employment law. To date, the

class actions I have handled since joining the firm that have resolved were against

Golden Road Food Services, LLC, which settled for $1,500,000; Matheson Tri-Gas,

Inc., which settled for $1,300,000; Space Exploration Technologies Corp., which

settled for $750,000; and The Fat Cow, LLC, which settled for $140,000. Currently, I

am working on five other pending class actions.

58. In addition, I sat second chair in a successful prosecution of a disability

discrimination/wrongful termination/defamation trial, Rivera v. Costco Wholesale

Corporation, Riverside County Superior Court Case No. RIC 1218368, which resulted

in a verdict of $1,686,500 in our client’s favor.

59. In each of the past five consecutive years (2013-2017), I have been

named a Southern California Rising Star by Super Lawyers magazine, a distinction

given to 2.5% of attorneys who either are under forty (40) years of age or have been in

practice for less than ten (10) years based on peer balloting.1 For the past three years

(2015-2017), I have been named to the Rising Stars Up & Coming 100 list. I also am a

contributing author to the California State Bar Labor & Employment Law Review, co-

authoring the Wage and Hour Update.

60. I am a member of and active in several plaintiff’s and employment

groups, including the California Employment Lawyers Association (“CELA”), a

statewide organization of over 1,200 attorneys who devote the major portion of their

practices to representing employees in individual employment cases and class actions,

the Los Angeles chapter of the National Employment Lawyers Association (“NELA”),

and the Los Angeles County Bar Association Labor and Employment Law Section

(“LACBA”). I am co-chair of LACBA’s Saturday Seminar Committee and member of

the Labor and Employment Section Executive Committee, and a co-chair of CELA’s

Worker Outreach Committee, through which I coordinate the association’s Know

Your Rights campaign and pro bono advocacy opportunities on behalf of low wage 1 The Super Lawyer selections process is conducted by the publishers of Law and Politics magazine and results are published in Los Angeles Magazine, The New York Times and Southern California Super Lawyers Magazine.


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workers. I also am an active member of CELA’s Legislative, Technology, and Wage

and Hour Committees.

61. In association with the State Bar Labor and Employment Section, I

moderated a webinar, “Using Unpaid Interns, Apprentices, Volunteers, and Trainees:

It Could Cost You!” (Dec. 2015). In May 2017, I moderated a panel on discovery at

CELA’s Thirteenth Annual Advanced Wage and Hour Conference. In past years, I

have moderated panels on arbitration (CELA’s Twelfth Annual Advanced Wage and

Hour Conference, May 2016) and emerging trends in wage and hour law (CELA’s

Eleventh Annual Advanced Wage and Hour Conference, April 2015), and a panel on

Electronically Stored Information (CELA’s Annual Conference, Oct. 2014). I also was

a panelist for a continuing legal education event, “When Industry Practice and Labor

Law Collide: Hot Topics in Entertainment and Employment Law,” Beverly Hills Bar

Association Labor & Employment Section (Dec. 2012). Through my work on

LACBA’s Saturday Seminar Committee, I coordinated and hosted a mock voir dire

presentation with four exceptional practitioners (Dan Stormer and David deRubertis

for Plaintiff, Tracey Kennedy (Sheppard Mullin) and Elena Baca (Paul Hastings) for

Defendant), two jury consultants, and Los Angeles County Superior Court Judge

Mary Anne Murphy (June, 2014) and moderated a seminar on employment law

(including wage and hour, discrimination, retaliation, and wrongful termination) (Jan.

2012).

62. Pursuant to my work with CELA’s Wage and Hour Committee, I

submitted Amicus letters requesting de-publication of the following cases: Bain v. Tax

Reducers, Inc. (2013) 219 Cal.App.4th 110; Tien v. Tenet Healthcare Corp. (2011)

192 Cal.App.4th 1055; and In re: Lamps Plus Overtime Cases, Flores, et al. v. Lamps

Plus, Inc., et al. (2011) 195 Cal.App.4th 389. All three cases were de-published.

XII. CLASS REPRESENTATIVE ENHANCEMENT

63. I believe that the named plaintiff performed considerable services on

behalf of the Class, since he searched for an attorney, collected and gathered the


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requested documents and information, met with us, made himself available each and

every single time that I called to answer questions about Defendant’s policies and

procedures produced in discovery or discussed during conversations with opposing

counsel or raised in pleadings filed in this matter. He consulted regularly with our firm

about developments in the case and helped to explain to us certain evidence obtained

in discovery. He had several sessions to prepare for his deposition, and had to drive

from Reno, Nevada to Las Vegas, Nevada and back again in the span of 24 hours to be

able to attend his deposition and not miss work. He also attended a full day mediation

in San Francisco, California wherein he explained Defendant’s procedures to the

mediator, and had to sleep in his car on the way back to Reno in order to wait out a

snowstorm that made passage dangerous. Significantly, Plaintiff filed a charge with

National Labor Relations Board related to this case in which he challenged the

arbitration agreement and class action waiver and prevailed (and now will be

dismissing as part of the Agreement).

64. I believe that the proposed Class Representative Enhancement of $20,000

for the Class Representative is fair and reasonable and warranted for his time and

effort, when Class Members are able to receive $3,750,000.00 as a result of his efforts.

XIII. ATTORNEY’S FEES AND COSTS

65. Our firm made every effort to litigate this action in an efficient and cost-

effective manner. Given my years of experience, my trial experience, and the focus of

my practice, if I were to charge for my type of work by the hour, my current hourly

rate would be $550.00 per hour. Mr. Feldman’s current hourly rate is $850.00 per

hour. We both have been approved at these rates, including in wage and hour matters.

These rates are our firm’s current billing rates and are supported by the extensive and

specialized experience in these types of cases and recognized expertise described

above. I have personal knowledge of the hourly rates charged by other attorneys with

comparable experience to mine. Based on that information, I believe that our rates are

fully consistent with the market rate for attorneys with comparable expertise,


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experience and qualifications in Los Angeles.

66. Pursuant to and consistent with the terms of the Settlement and subject to

Court approval, Class Counsel respectfully now moves for an award of attorneys’ fees

in an amount of up to $937,500.00 or 25% of the $3,750,000 Maximum Settlement

Amount. Defendant does not object to this request and it is fair and reasonable in light

of the result achieved, the work performed, and the substantial risks undertaken.

67. Our firm maintains all records regarding costs expended on each case. I

have reviewed the records of costs expended in this matter. According to our records,

our firm has incurred approximately $21,000.00, in costs in this matter. This amount

includes costs associated with the expenses associated with out-of-state and

videoconference depositions, mediation in San Francisco, and costs associated with

filing of the papers filed and responded to in this matter. Defendant does not object to

a request of costs up to $21,500.00. Class Counsel will file a detailed statement of

costs at the time of Final Approval.

68. Based on my experience and the amount of work to be performed,

including a text message and postcard reminder campaign, the Claims Administrator’s

estimate that its expenses will not exceed $30,000 to administrate this settlement,

which falls within the range of estimates I have been quoted and billed in the past with

settlements of similar size and circumstances. Further, the proposed claims

administrator is an experienced class settlement administration company, and has

acted as claims administrator in numerous wage and hour cases.

I declare under penalty of perjury under the laws of the United States and the

State of California that the foregoing is true and correct.

Executed this 30th day of June, 2017, at Los Angeles, California.

/s/ Leonard H. Sansanowicz LEONARD H. SANSANOWICZ, Declarant


Lee R. Feldman, Esq. (SBN 171628) [email protected]...

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