RICHARD E. QUINTILONE II, Bar No.200995 QUINTILONE ... · 1 SCOTT B. COOPER, Bar No. 174520 THE...

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28TTLER MENDELS01

2050 Main StreetSuite 900

Irvine, CA 92614

RICHARD E. QUINTILONE II, Bar NoQUINTILONE & ASSOCIATES22974 El Toro Road Suite 100Lake Forest, CA 92630-4961Telephone: 949.458.9675Facsimile: 949.458.9679Email :req(o)quintlaw.com

ROGER R. CARTER, Bar No.140196BIANCA A. SOFONIO, Bar No. 179520THE CARTER LAW FIRM2030 Main Street, Thirteenth FloorIrvine, CA 92614-7219Telephone: 949.260 .4737Facsimile: 949.260.4754

.200995

Email: RCARTER(2>,CARTERLAWFIRM.NET[Continued On Following Pages]

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

TAMARA MICCICHE, on behalf ofherself and on behalf of a Class of allother persons similarly situated,

Plaintiff,

V.

SCHNEIDER ELECTRIC, anunknown business entity; AMERICANPOWER CONVERSION, an unknownbusiness entity; and DOES 1 through100, inclusive,

Defendants.

Case No. 8:ll-cv-01479-JVS -JCG

MEMORANDUM OF POINTSAUTHORITIES IN SUPPORTJOINT MOTION FOR FINAL

ANDOF

APPROVAL OF CLASS ACTIONSETTLEMENT

Date: January 7, 2013Time: 1:30 PMDept: IOC

Case 8:11-cv-01479-JVS-JCG Document 30-1 Filed 12/05/12 of 33 Page ID #:662

1 SCOTT B. COOPER, Bar No. 174520THE COOPER LAW FIRM, P.C.

2 2030 Main Street, Suite 13003 Irvine, CA 92614

Telephone: 949.724.92004 Facsimile: 949.724.92555 Email: [email protected]

6 Attorneys for Plaintiff, TAMARA MICCICHE on behalf7 of herself and on behalf of a Class of all other persons

similarly situated8

9 JAMES E. HART, Bar No. 194168Email: [email protected]

1 ° HEATHER M. Peck, Bar No. 254694l\ Email: [email protected]

LITTLER MENDELSON12 2050 Main Street, Suite 90013 Irvine, CA 92614

Telephone: 949.705.300014 Facsimile: 949.724.1201

J. KEVIN LILLY, Bar No. 11998116 Email: [email protected]! ? LITTLER MENDELSON

2049 Century Park East, 5th Floor18 Los Angeles, CA 90067.310719 Telephone: 310.553.0308

Facsimile: 310.553.558320

Attorneys for Defendants21 SCHNEIDER ELECTRIC USA, INC., erroneously sued22 as SCHNEIDER ELECTRIC and AMERICAN POWER

CONVERSION^*J

24

25

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27

28


1 TABLE OF CONTENTS2

PAGE3 I. INTRODUCTION 1

4 II. PROCEDURAL HISTORY OF THE CASE 2

5 A. Procedural History Preceding Settlement 2

6 The following is a brief review of the facts and procedure in this case: 2

7 B. Settlement Terms 5

8 C. Claims Administration 6

9 III. DISCUSSION 7

10 A. The Court Should Affirm Class Certification In Order To CarryOut The Settlement 7

11B. Appropriate Notice Has Been Given to the Class 9

12C. Class Action Settlements Are Subject To Court Review And

13 Approval By The Court 10

14 D. This Settlement Should Be Presumed To Be Valid 12

15 E. The Settlement Should Be Finally Approved As Fair, AdequateAnd Reasonable 14

161. The Strength Of Named Plaintiffs Case 15

172. The Risks Inherent In Continued Litigation Weigh Strongly

18 In Favor Of Granting Final Approval 16

19 3. The Risk of Certifying and Maintaining Class Action StatusThrough Trial 18

204. The Amount Offered In Settlement And Benefits To The

21 Class Of The Proposed Settlement Support Final Approval 19

22 5. The Extent of Discovery Completed and the Stage of theProceedings 21

236. The Experience and Views of Counsel Favor Final Approval 22

247. Both Federal and State Officials Have Been Provided with

25 the Opportunity to Review and Consult Regarding theSettlement 22

268. The Reaction Of Class Members To The Settlement Favors

27 Approval 23

28 IV. CONCLUSION 24

i.


12

3

4 TABLE OF AUTHORITIES

5 Page(s)CASES

67- Officers for Justice v. Civil Service Com.,

7 688 F.2d 615 (9th Cir. 1982) passim8

Air Line Stewards, etc., Loc. 550 v. American Airlines, Inc.9 455 F.2d 101 (7th Cir. 1972) 21

Altier v. Worley Catastrophe Response, LLC,11 2011 U.S. Dist. LEXIS 85696 (E.D. La. July 26, 2011) , 18

12 Boyd v. Bechtel Corp.,13 485 F. Supp. 610 (N.D. Cal. 1979) 21

14 Brinker Rest. Corp. v. Super. Ct. (Hohnbaum),165 Cal. App. 4th 25 (2008) 15,20

16 Brinker Restaurant Corporation v. Superior Court (Hohnbaum),53 Cal^* 1004, 139 Cal. Rptr. 3d 315 (2012) 12,13

17Class Plaintiff's v. City of Seattle,

955 F.2d 1268 (9th Cir. 1992) 11,16,2419

Corwin v. Lawyers Title Insurance Co.,20 2011 U.S. Dist. LEXIS 84232 (E.D. Mich. Aug. 1, 2011) 18

21 Cruz v. Dollar Tree Inc.,22 2011 U.S. Dist. Lexis 73938 (N.D. Cal. July 7, 2011) 18

23 Eisen v. Carlisle & Jacquelin24 417 U.S. 156, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974) 10

25 Hanlon v. Chrysler Corp.,26 150 F.3d 1011 (9th Cir. 1998) passim

27 In re Austrian & German Bank Holocaust Litig,80 F. Supp. 2d 164 (S.D.N.Y. 2000) 23

28

i.


1 TABLE OF AUTHORITIES2 (CONTINUED)

PAGE3 In re GMC Pick-Up Truck Fuel Tank Prods. Limb. Litig.,4 55 F.3d 768 (3d Cir. 1995) 13

5 In re Omnivision Tech., Inc.,2008 WL 123936 (N.D. Cal. 2008) 21

6y In re Pacific Enters. Sec. Litig.,

47 F.3d 373 (9th Cir. 1995) 228

Jamison v. Butcher & Sherrerd,68 F.R.D. 479 (E.D. Pa. 1975) 10

10Kirkorian v. Borelli,

11 695 F. Supp. 446 (N.D. Cal. 1988) 24

12 Lane v. Facebook, Inc.,13 696 F.3d 811 (9th Cir. 2012) 19

14 Laskey v. Int'l Union,638 F.2d 954 (6th Cir. 1981) 23

A. *J

1 ̂ Lee, et al. v. ITT Corp.,2011 U.S. Dist. LEXIS 70190 (W.D. Wash. June 24, 2011) 18

17Lerwill v. Inflight Motion Pictures, Inc.,

582 F.2d 507 (9th Cir. 1978) 819

Linney v. Cellular Alaska P'ship,20 151 F.3d 1234 (9th Cir. 1998) 19,21

Macgregor, et al. v. Farmers Insurance Exchange,22 2011 U.S. Dist. LEXIS 80361 (D. S.C. July 22, 2011) 19

23 Mario v. United Parcel Serv., Inc.,24 2011 U.S. App. LEXIS 8664 (9th Cir. Apr. 28, 2011) 18

25 Marshall v. Holiday Magic, Inc.,26 550 F.2d 1173 (9th Cir. 1977) 15,23

27 Morangelli, et al. v. Chemed Corp., et al., 2011 U.S. Dist. LEXIS 73807 (E.D.N.Y. July 8, 2011) 18

28

11.



PAGE3 Mullane v. Central Hanover Bank & Trust Co.,4 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865,

1950 U.S. LEXIS 2070 (1950) 9,105

Nat'I Rural Telecom. Cooperative v. DirecTV Inc.,6 221 F.R.D. 523 (C.D. Cal. 2004) 16,21,227

Oppenlander v. Standard Oil Co. (Indiana),8 64 F.R.D. 597 (D. Colo. 1974) 179

Philadelphia Housing Authority v. American Radiator & Standard Sanitary10 Corp.11 323 F. Supp. 364 (E.D. Pa. 1970) 9

12 Pridd v. Edelman,883F.2d438(6thCir. 1989) 11

13. . Staton v. Boeing Co.,

327 F.3d 938 (9th Cir. 2003) 11,15,2415

Stoetzner v. US. Steel Corp.,16 897 F.2d 115 (3d Cir. 1990) 2317

Valentino v. Carter-Wallace, Inc.,18 97 F.3d 1227 (9th Cir. 1996) 9

1" Van Bronkhorst v. Safeco Corp.,20 529 F. 2d 943 (9th Cir. 1976) 16

21 Wal-Mart Stores, Inc. v. Dukes,22 U.S. , 131 S. Ct 2541, 180 L. Ed. 2d 374 (2011) 18

23 West v. Circle K Stores, Inc.,2006 U.S. Dist. LEXIS 76558 (E.D. Cal. 2006) 22

24~c Young v. Katz,

447 F.2d 431 (5th Cir. 1971) 1726

27

28

m.



PAGE3 STATUTES

4 CAFA 22

California Business & Professions Code § 17200, et seq 36

California Labor Code § 2802 37g California's Private Attorneys General Act of 2004 ("PAGA") 3

9 Class Action Fairness Act ("CAFA") 3

10 PAGA 5

11 OTHER AUTHORITIES

12 FED. R. Civ. P. 23(a) 713

FED. R. Civ. P. 23(a)(2) 714

FED. R. Civ. P. 23(a)(3) 8

16 FED. R. Civ. P. 23(a)(b) 7

17 Fed. R. Civ. P. 23(e)(l)(C) 10

18 Rule 23(a), FED. R. Civ. P 7

19 FED. R. Civ. PROC. 23(e)(l)(A) 1020

FED. R. Crv. PROC. 23(b)(3) 921

Manual for Complex Litigation, Second ("MCL"), § 30.44 (1993) 10£*Z*

23 Newberg and Conte, Newberg On Class Actions (4th Ed. 2002) 17

24 Notice. During the Class Period, 237 2

25 Notice of Removal, Docket Item #6 3

26C:\Users\egranados\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\9KBJNU6I\From Jane - FINAL FINAL 14 pt Joint

27 Motion for Final Approval 12 05 12 (2).doc

28

IV.


1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3 By this Motion, Defendant American Power Conversion Company

4 ("Defendant" or the "Company"), Defendant Schneider Electric USA Inc.

5 ("Schneider Electric"), and Plaintiff Tamara Micciche ("Named Plaintiff), on her

6 own behalf and on behalf of the Class1, seek final approval of the settlement of this

7 matter. Named Plaintiff, Schneider Electric and APC (individually "Party," together,

8 the "Parties") seek to fully finally and forever settle the claims2 brought by Named

9 Plaintiff on her own behalf and on behalf of the Class. This Motion comes after the

10 Court has already preliminarily approved as fair and reasonable the terms of the

11 Parties' Class Action Settlement Agreement and Stipulation ("Settlement" or

12 "Agreement"), which requires a payment by Defendant of up to $1,085,000 to cover

13 all aspects of Settlement, including attorneys' fees and costs, costs of settlement

14 administration, payment of penalties to the Labor Workforce Development Agency

15 ("LWDA") and Class Members who choose to participate in the Settlement

16 ("Claimants").

17 As discussed herein, the Agreement embodies all of the features of a settlement

18 that is fair, reasonable, adequate, and in the best interests of the Class Members3

19

20 1 The "Class" or "Class Members" refers to those employees who worked at APC in21

California at any time from June 12, 2007 to July 31, 2012. The "Class Period"22

includes the period of time from June 12,2007 to July 31,2012.23 2 The Parties reached an agreement to settle all the wage and hour claims (including,24

inter alia, overtime, off-the-clock, reimbursement, paystub, and meal and rest25

violations) alleged to have occurred at any time during the Class Period.9/>

3 The "Settlement Class" or "Settlement Class Members" include Named Plaintiff and27

all current and/or former employees who worked for APC in California from June 12,28

2007 to July 31,1012, other than those that opt out.1.


1 because it is the product of an arms-length, intensive, non-collusive negotiations and

2 is fair, adequate and reasonable, when considering the relative strength and value of

3 the Class claims, stage of the proceedings, as well as the risks, expense, complexity

4 and likely duration of further litigation. Importantly, the 60-day claims period and

5 70-day objection period have resulted in very strong and positive Class Member

6 reaction to the Notice. During the Class Period, 237 Class Members of the 361-

7 person Class filed valid claims, which equals an estimated 65.65% of the Class and

8 70.19% of the workweeks, and will result in a payout of approximately $498,020.47.

9 More importantly, the Parties are unaware of any objectors or requests for exclusion.4

10 These numbers are undoubtedly within the range of similar settlements for which

11 final approval was granted. See, e.g., George v. TRS Staffing Solutions, Inc.,

12 SACV09-00835 JVS(MLGx) (2011) (approving off-the-clock, meal and rest period,

13 wage statement and termination pay claims with a 40% claims rate); Harper v. Red

14 Robin, 8:07-cv-00124-JVS(RNB) (2008) (approving meal and rest settlement with an

15 18% opt in rate).

16 For these reasons, and as set forth more fully herein (and in the accompanying

17 papers), the Parties respectfully request this Court enter the proposed Final Approval

1 g Order submitted herewith.

19 II. PROCEDURAL HISTORY OF THE CASE

20 A. Procedural History Preceding Settlement.

21 The following is a brief review of the facts and procedure in this case:

22 Named Plaintiff, Tamara Micciche, is a former employee of APC, who worked

23 as an Inside Service Sales Representative from the commencement of the class

24 period5 until April 2011. Named Plaintiff never worked for Schneider Electric.6

25

26 4

27 5

28 6

(See Declaration of Michael Bui iso Final Approval ["Bui Dec."], fflf 9-11.)

The "Class Period" includes June 12, 2007 to July 31, 1012.

(Declaration of James E. Hart iso Final Approval ["Hart Dec."] |17, Ex. D.)2.


1 Defendants, APC and Schneider Electric ("Defendants") are subsidiaries of the

2 holding company Schneider Electric Holdings, Inc. APC is a company incorporated

3 in Massachusetts and headquartered in West Kingston, Rhode Island, offering

4 products, including Uninterruptible Power Supply ("UPS") that provides protection

5 against data loss, hardware damage and downtime. Schneider Electric USA Inc.

6 ("Schneider Electric") is incorporated in Delaware, headquartered in Palatine, Illinois

7 and manufactures and markets different electronic equipment, such as switchgear and

8 switchboard apparatuses.7

9 Proceedings. Named Plaintiff filed the Complaint on August 11, 2011 and

10 amended the Complaint on August 21, 2012. The current Complaint alleges causes

11 of action for: (l)-(2), (7) unpaid regular and overtime wages; (3)-(4) missed meal and

12 rest periods; (5) failure to provide itemized statements; (6) failure to pay wages twice

13 monthly; (8) unreimbursed business expenses (California Labor Code § 2802); (9)

14 penalties under California's Private Attorneys General Act of 2004 ("PAGA"); and

15 (10) unfair business practices (California Business & Professions Code § 17200, et

16 seq.). (The original and amended complaints are referred to as the "Complaint").

17 Defendants originally answered the Complaint and then removed the matter to this

1 g Court under the Class Action Fairness Act ("CAPA").

19 Discovery. The Parties investigated, conducted discovery and exchanged

20 information prior to mediation. Efforts by Named Plaintiff, include serving written

21 discovery, which, after meet and confer efforts, led to informal responses in the

22 context of the upcoming mediation. Named Plaintiff also interviewed multiple

23 witnesses and identified additional class representatives. Class Counsel further

24 retained a private investigator to interview multiple non-English speaking Class

25 Members and identify additional claims asserted in the Amended Complaint.

26 Defendants' efforts included serving written discovery, deposing Named Plaintiff and

27

28 I7 (See Notice of Removal, Docket Item #6 [Copeland Dec., f 10]; Hart Dec., Ex. A].)3.


1 receiving documents from Named Plaintiff through discovery.8

2 Preparation for Mediation. Both Parties reviewed available data and conducted

3 extensive legal research prior to the mediation and settlement about the causes of

4 action, including for the meal and rest periods, overtime, off-the-clock,

5 reimbursement and other claims at-issue as well as the state of the law concerning

6 class certification and other legal aspects of any future trial.9

7 In addition, Defendants provided Named Plaintiff with payroll, attendance and

8 employee information for the putative class members working for APC to assist with

9 the settlement discussions10 and information that was reasonably available11 including

I o samples of various documents that were harder to access.

I1 Class Counsel reviewed the information provided by Defendants and computed

12 various damage models, using complex and difficult extrapolation methods and

13 preparing an extensive, comprehensive liability and risk analysis, along with a class-

14 wide damage analysis. All of this enabled Class Counsel to evaluate APC's potential

15 class liability, the necessary predicate to achieve a stipulated settlement rationally

16 based on the value of class claims presented.12

17 Mediation. After a 14-hour mediation, the case settled on April 18, 2012 with

18 the assistance of Mark Rudy, Esq., one of the preeminent mediators and litigators of

19 wage and hour class action cases in California. Defendant agreed to pay an amount

20 not to exceed $1,085,000.00 ("Gross Settlement Amount" or "GSA") and

21

22 8

23 9

24 10

25 „

(Dec. of Richard E. Quintilone II Esq. ISO Final Approval ["Quintilone Dec."], f7.)

(Quintilone Dec., 18; Hart Decl., f7.)

(Hart Dec. H5-7; Quintilone Dec., f 8)

The majority of the information prior to 2010 is difficult to access and only26

available in PDF formats, and the Parties exchanged available electronic data for the27

evaluation. (Hart Dec., 18.)28 12 (Quintilone Dec., 19.)

4.


1 memorialized the agreement in a Stipulation of Settlement ("Settlement" or

2 "Agreement").13

3 B. Settlement Terms

4 The Settlement contains the following terms:

5 • Claims-made Settlement with reversion. Those who timely and validly

6 file claims ("Claimants") will receive a pro-rata share of the Settlement

7 based on the number of weeks worked during the Class Period

g (determined from APC records).

9 • Release of all "Settled Claims." which include all claims alleged in the

10 Complaint or that arise out of the facts, matters, transactions or

11 occurrences referred to in the Complaint that could reasonably have

12 been alleged as separate claims.

13 • A total all-inclusive payment by APC not to exceed $1,085,000.

14 • Attorney Fees. An award of up to $325,000 (30% of the total

15 Settlement) as a reasonable attorneys' fee award.

16 • Attorney Costs. Total costs not to exceed $20,000.

17 • Incentive Payment. An incentive payment of up to $10,000 to Named

1 g Plaintiff, Tamara Micciche.14

19 • Net Settlement Amount ("NSA"X Payments to Claimants from a NSA

20 of $705,500 after deducting attorneys' fees, attorneys' cost, the

21 enhancement payment to Named Plaintiff, and the payment to

22 California's Workforce Development Agency in consideration for

23 release of PAGA claims. The "Weekly Rate" will equal the NSS

24 divided by the total number of workweeks during the Class Period

25

96 13 (Quintilone Dec., IflO.)27

14 The Company also separately settled with Ms. Micciche for all claims not part of28

this Action. (See Hart Dec., TflS.)5.


1 worked by all Class Members. Payouts will be based on a formula

2 multiplying Qualified Workweeks by the Weekly Rate, subject to the

3 50% Threshold (requiring that 50% of the NSS be allocated for

4 distribution to Claimants). The 50% Threshold has been met in this

5 case.

6 C. Claims Administration

7 Following preliminary approval, and pursuant to the Court's preliminary

8 approval Order, Defendants provided the Claims Administrator with the Court

9 approved text of the Notice Packet and a spreadsheet listing Class Members'

10 information such as name, last known address, Social Security number, hire date, and

11 any termination date. The Administrator sent Settlement Notice Packets to 361 Class

12 Members working approximately 65,579 workweeks during the Class Period.15

13 The Claims Administrator updated addresses and then mailed the Notices on

14 September 26, 2012. The Claims Administrator also performed skip traces for

15 returned Notice Packets and mailed a followed-up reminder postcard on October 22,

16 2012.16

17 Of the Class Members, 236 filed Claims. This equals a response rate of

18 65.65% of the Class and 70.19% of all workweeks at issue. The total payout to

19 Participating Class Members is estimated to be $498,020.47. The average Claimant

20 will receive approximately $2,101.35. The highest amount recovered by a Claimant

21 will be $2,812.31. No Class Member has excluded them from the Settlement, and

22 there is no record of any objections being filed as of the deadline for this Motion.17

23

24

25

26

27 16

28 17

15 (Bui Dec.H2-7; Hart Dec.1f2l; see Aug. 20, 2012 Order at pp. 11-12.)

(BuiDec.t|7-10.)

(Bui Dec.|[17-10.)6.


1 III. DISCUSSION

2 Final approval is warranted in this case since: a) the Class was properly

3 certified for purposes of Settlement; b) the Class has received proper notice; c) the

4 Settlement was reached following arms-length bargaining; and d) the Settlement is

5 fair, reasonable and adequate.

6 A. The Court Should Affirm Class Certification In Order To Carry Out

7 The Settlement.

8 In granting preliminary approval, the Court certified a class for purposes of

9 settlement. This ruling should be affirmed since it is necessary to carry out the terms

10 of the Settlement and therefore satisfies the requirements of (1) numerosity; (2)

11 commonality; (3) typicality; (4) adequacy, (5) predominance and (6) superiority

12 elements needed to certify a class. See FED. R. Civ. P. 23(a), (b).

13 Numerosity. In granting preliminary approval, the Court has already

14 found numerosity. Rule 23(a), FED. R. Qv. P. 23(a)(l) (requires that the class be "so

15 numerous that joinder of all members is impracticable."). There is nothing to change

16 this fact; the relative class size remains the same as should the finding.18

17 Common Questions of Law and Fact. In granting preliminary approval,

18 the Court also found common questions of law and fact, based on Named Plaintiffs

19 declaration that the proposed Class Members share sufficient commonality to satisfy

20 Rule 23(a)(2) and the statement by Defendants that they do not oppose that common

21 questions of fact and law exist for purposes of settlement.19 See FED. R. Crv. P.

22 23(a)(2) (Rule 23 (a) requires that "there are questions of law or fact common to the

23 class"). Again, there is nothing that has changed to alter this determination for

24 purposes of settlement.

25

26

7 18 (8/20/12 Minute Order, p. 4.)28 19(/J.,pp.4-5.)

7.


1 Typicality. The Court in preliminarily approving the case also found

2 typicality. 20 See FED. R. Civ. P. 23(a)(3) (requiring that "the claims or defenses of

3 the representative parties are typical of the claims or defenses of the class."). In this

4 regard, Named Plaintiff represents that her claims arise from the same course of

5 conduct as the Class claims and are reasonably, if not entirely, coextensive with those

6 of the absent Class Members.21 Defendant does not oppose the finding or purposes of

7 creating a class for settlement. Thus, Named Plaintiffs claims should be found

8 typical of those of the class for purpose of settlement.

9 Adequacy. Class Counsel have represented that they been certified as

10 competent and experienced in prior wage and hour class action litigation; and Named

11 Plaintiff represents she does not have interests which are in conflict with the interests

12 of the class.22 Defendants do not oppose such a finding for purposes of settlement,

13 and the Parties request that the Court maintain adequacy, as it did in the order

14 granting preliminary approval. See Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d

15 507, 512 (9th Cir. 1978).

16 The Predominant Common Questions Inquiry Is Unopposed. The Court

17 has also found that, for purposes of settlement, common questions of law0^

18 predominate. Indeed, Named Plaintiff has maintained that common issues

19 surrounding APC's employment practices and policies governing timing, taking, and

20 length of meal periods, as well as the payment of wages and overtime and

21 reimbursements can establish liability on a class-wide basis.24 Defendants have

22 agreed not to dispute this assertion for purposes of carrying out the final approval of

23

24 20

25 21

26 22

27 23

28 24

(Id, pp. 5-6.)

(Quintilone Decl., 130.)

(See/J., HI 5-26, 31 MiccicheDec. If 11.)

(8/20/12 Minute Order pp. 7.)

(See Quintilone Dec. f 8.)8.


1 the Settlement, and the Court should affirm its ruling for this purpose.

2 Superiority. Finally, the Court has also found that maintaining the Class

3 for settlement purposes meets the superiority requirements of Federal rule of Civilf\ C

4 Procedure 23(b)(3). Named Plaintiff has declared that certification is superior and

5 by reaching settlement, and Defendant has agreed not to dispute that the superiority

6 requirement for settlement purposes only. In fact, the Parties continue to maintain

7 that certification for settlement purposes is superior to a protracted certification fight

8 and ongoing litigation. Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th

9 Cir. 1996) (superiority exists where it will "reduce litigation costs and promote

10 greater efficiency"). This aspect of certification should therefore be maintained as

11 well to carry out and finally approve the Settlement.

12 Thus, the certification findings should remain valid and unchanged. The fact

13 that preliminary approval, and certification for purpose of settlement, were followed

14 by a strong and positive response by Class Members and by a lack of any objection to

15 the resolution on a class-wide basis support ongoing certification. The Court's

16 findings and post-certification developments provide a basis to continue certification

17 for the limited purpose of settling the case.

1 g B. Appropriate Notice Has Been Given to the Class.

19 Notice in this case has been provided pursuant to the Court's Order granting

20 preliminary approval. The notice, as approved by the Court, satisfied all legal

21 requirements. It properly notifies Class Members of the Settlement terms and Class

22 Members' rights, such as the nature of the case, details of the Settlement and rights of

23 the Class Members to participate, object, exclude themselves or do nothing; along

24 with the method by which Class Members can obtain more information. See Mullane

25 v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed.

26 865, 1950 U.S. LEXIS 2070 (1950); Philadelphia Housing Authority v. American

27

28 25 (Aug., 20, 2012 Minute Order p. 8.)

9.


1 Radiator & Standard Sanitary Corp. 323 F. Supp. 364, 378 (E.D. Pa. 1970). It was

2 personally sent by First-Class US mail to the Class Members. The Claims

3 Administrator undertook additional efforts to identify, contact and remind Class

4 Members of the pending Settlement. The Claims Administrator updated addresses

5 before mailing them. The Administrator re-mailed 31 notices that were returned after

6 mailing. The Administrator also mailed reminder post cards to emphasize the

7 opportunity of Class Members to participate in the Settlement.26 These steps have

8 assured compliance with due process, and the Court should affirm its Order that

9 notice has been adequate. Such personal notice to each Class Member along with the

I o follow-up steps taken by the administrator are sufficient to protect the rights of absent

II class members. See Eisen v. Carlisle & Jacquelin 417 U.S. 156, 174-76, 94 S. Ct.

12 2140, 40 L. Ed. 2d 732 (1974) (individual notice must be sent to all class members

13 who can be identified through reasonable efforts); Mullane v. Central Hanover Bank

14 & Trust Co. 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950).

15 C. Class Action Settlements Are Subject To Court Review And

16 Approval By The Court.

17 Court approval is required for any class action settlement. See FED. R. Civ.

18 PROC. 23(e)(l)(A). The commonly accepted procedure for court approval of a

19 settlement calls for: (1) preliminary approval of the proposed settlement; (2) notice to

20 class members of the action, settlement terms, and of their rights; and (3) a final

21 hearing on the fairness and adequacy of the proposed settlement. See Manual for

22 Complex Litigation, Second ("MCL"), § 30.44 (1993). As mentioned above, the first

23 two steps have occurred, leaving only the final approval. See Fed. R. Civ. P.

24 23(e)(l)(C).

25 Regarding final approval, a court should disapprove a settlement "only with

26 considerable circumspection." Jamison v. Butcher & Sherrerd, 68 F.R.D. 479, 481

27 (E.D. Pa. 1975). Courts strongly favor and encourage settlements, particularly in

28 26 (Bui Dec-18.)10.


1 class actions, where the costs, delays, risks, and uncertainties inherent in complex

2 litigation might overwhelm any recovery the class stands to obtain. 7- Officers for

3 Justice v. Civil Service Com., 688 F.2d 615, 625 (9th Cir. 1982) (noting "avoidance of

4 wasteful and expensive litigation" as inducement for settlements); Class Plaintiffs v.

5 City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992) ("strong judicial policy . .. favors

6 settlement particularly where complex class action litigation is concerned").

7 "Ultimately, the district court's determination is nothing more than an amalgam of

8 delicate balancing, gross approximations and rough justice." Officers for Justice, 688

9 F.2d at 625 (internal quotation marks omitted).

10 On final approval, the Court's role "is limited to the extent necessary to reach a

11 reasoned judgment that [1] the agreement is not the product of fraud or overreaching

12 by, or collusion between, the negotiating parties, and [2] that the settlement, taken as a

13 whole, is fair, reasonable and adequate to all concerned." Officers for Justice, 688

14 F.2d at 625. Regarding the first consideration (i.e., the basis of the agreement), where

15 there is no evidence of fraud or collusion, courts presume that no such improprieties

16 tainted the negotiations, and that they were conducted in good faith. See Newberg on

17 Class Action, 3d Ed. §11.51; Priddv. Edelman, 883 F.2d 438, 447 (6th Cir. 1989).

18 With regard to the second consideration (i.e., the reasonableness and

19 adequacy), the Court must consider a number of factors, including: (1) the strength of

20 a plaintiffs' case; (2) the risk, expense, complexity, and likely duration of further

21 litigation; (3) the risk of maintaining class action status throughout the trial; (4) the

22 amount offered in settlement; (5) the extent of discovery completed and the stage of

23 the proceedings; (6) the experience and views of counsel; (7) the presence of a

24 governmental participant; and (8) the reaction of the class members to the proposed

25 settlement. Staton v. Boeing Co., 327 F.3d 938, 959 (9th Cir. 2003); Hanlon v.

26 Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).

27

28

11.


1 D. This Settlement Should Be Presumed To Be Valid.

2 1. Final Approval is Warranted Because The Class Action

3 Settlement Was The Product of Arms-Length, Intensive, Non-

4 Collusive Negotiations.

5 The Agreement here was reached through arm's-length bargaining between

6 experienced counsel with a respected mediator. Before agreeing to mediate, both

7 Parties strongly advocated their legal positions throughout the litigation: class

8 counsel believed and believes in the merits of Named Plaintiffs and Class Members'

9 legal position; Defendants were ready to aggressively move to defeat a class

10 certification either in response to a motion by Named Plaintiff or through an

11 affirmative motion and to take other action (such as through summary judgment).

12 The Parties entered the mediation after properly researching and analyzing their

13 claims and after weighing the risks and rewards of proceeding with litigation on the0*7

14 one hand or compromise on the other. The Parties also entered the mediation

15 having taken the deposition of Named Plaintiff and after exchanging payroll data and

16 other information required by Named Plaintiff to assess the settlement value of the2817 case.

18 Settlement was not quickly and perfunctorily reached, but only came about

19 after a full-day's mediation, at which both Parties made offers and counteroffers

20 before any eventual agreement. Part of these discussions included express

21 consideration of Brinker Restaurant Corporation v. Superior Court (Hohnbaum), 53

22 Cal.^ 1004, 139 Cal. Rptr. 3d 315 (2012), which was decided by the California

23 Supreme Court shortly before the mediation and which held that employers need only

24 make the required meal breaks available. Both Parties eventually agreed to settle as

25 an efficient and fair alternative to protracted litigation, high costs and fees, and

26

27 27

28 28

(See Hart Dec.|7.)

(See Quintilone Dec., 11J8-11; Hart Dec., ^fl8, Ex. D.)

12.


OQ

1 inevitable delay before any final resolution. These efforts and surrounding

2 circumstances support final approval. See In re GMC Pick-Up Truck Fuel Tank

3 Prods. Limb. Litig., 55 F.3d 768, 785 (3d Cir. 1995).

4 2. Counsel Appropriately Exchanged Information and Took

5 Discovery Before The Mediation.

6 Before mediation, Defendants deposed Named Plaintiff and requested

7 documents to assess the allegations, the information, witnesses and documents

8 disclosed in initial disclosures. The Company also undertook internal investigations

9 and review of documents relevant to the allegations. As discussed earlier,

10 Defendants further provided payroll and personnel documents and information to

11 counsel for Named Plaintiff for purposes of assessing and evaluating the claims.

12 As described in the motion for preliminary approval, Named Plaintiff

13 participated in numerous and lengthy phone conferences and meetings with class

14 counsel. She educated class counsel regarding the operations of Defendants' Costa

15 Mesa facility, the working conditions of the various positions, and the policies and

16 practices of Defendants. Additionally, Named Plaintiff helped with witness location,

17 and interviews, reviewed documents produced by Defendants and helped prepared

18 responses to formal discovery. Class Counsel hired investigators to communicate

19 with additional non-English speaking class members and to obtain additional evidence

20 in support of Named Plaintiffs claims.30

21 Finally, both before and during the mediation, the Parties engaged in

22 conferences to discuss and clarify specific factual issues for purposes of the

23 mediation. These efforts and others provide a more than adequate factual basis upon

24 which to base the settlement of the claims.

25

26

272928 r;^7^

me Dec.|8-l 1; Micciche Dei13.

30 (Quintilone Dec.|8-l 1; Micciche Dec., ffl[3, 13-15; Hart Decl., |Tf6-18.)


1 3. Counsel For Both Parties are Experienced in Class Litigation

2 a. Named Plaintiffs Counsel is Experienced in Class

3 Litigation

4 Another factor considered in determining the fairness of a settlement is the

5 experience and views of counsel. Hanlon, 150 F.3d at 1026. Class Counsel have

6 collectively practiced law for over 40 years, have focused their practices on wage and

7 hour class actions, and have cumulatively been appointed class counsel or co-class

g counsel in more than 60 class actions and have obtained substantial recoveries for

9 over 500,000 employees through these cases. Based on this combined experience,

10 Class Counsel strongly believe that the Settlement is fair and appropriate given all

11 factors involved.31

12 b. Defendant's Counsel is Experienced in Class Litigation

13 Defendants retained Littler Mendelson P.C., a law firm solely dedicated to the

14 practice of labor and employment law. Littler is routinely ranked number one in both

15 employment litigation, and wage and hour litigation. In the past five years, Littler

16 has litigated more than 600 class/collection actions. Attorneys working on this

17 matter include Kevin Lilly Esq. and Jim Hart Esq. Mr. Lilly is a Shareholder in

18 Littler's Los Angeles office and has been practicing at Littler for over 15 years. Mr.

19 Lilly is an experienced litigator with a special emphasis on complex litigation,•^/N

20 including class and collective actions and wage and hour litigation.

21 4. Counsel Are Unaware of Any Objection

22 To date, Counsel are unaware of any objections to the Settlement Agreement.

23 E. The Settlement Should Be Finally Approved As Fair, Adequate And

24 Reasonable

25 This Settlement deserves final approval, as it is fair, adequate and reasonable

26

27 31

28 32

(Carter Dec., |5; Quintilone Decl., f!6.)

(See Hart Dec., fflf 1-4.)14.


1 in all respects. See Staton v. Boeing Co., 327 F.3d at 959. As mentioned above, the

2 trial court "should consider relevant factors, such as [1] the strength of Named

3 Plaintiffs' case, [2] the risk, expense, complexity and likely duration of further

4 litigation, [3] the risk of maintaining class action status through trial, [4] the amount

5 offered in settlement, [5] the extent of discovery completed and the stage of the

6 proceedings, [6] the experience and views of counsel, [7] the presence of a

7 governmental participant, and [8] the reaction of the class members to the proposed

8 settlement." See Staton, 327 F.3d at 959; Hanlon, 150 F.3d at 1026. All factors

9 support final approval here.

10 1 - The Strength Of Named Plaintiffs Case.

11 "Some factors that may bear on a review of settlement [include] the advantages

12 of the Proposed Settlement versus the probable outcome of a trial on the merits of

13 liability and damages as to the claims, issues, or defenses of the class and individual

14 class members." See Marshall v. Holiday Magic, Inc., 550 F.2d 1173 (9th Cir. 1977).

15 However, in assessing the strength of Named Plaintiffs case, the goal is not to try the

16 case prior to approval:

17 [T]he settlement or fairness hearing is not to be turned into aI g trial or rehearsal for trial on the merits. Neither the trial

court nor this court is to reach any ultimate conclusions on19 the contested issues of fact and law which underlie the20 merits of the dispute, for it is the very uncertainty of

outcome in litigation and avoidance of wasteful and21 expensive litigation that induce consensual settlements.

22 Officers for Justice, 688 F.2d at 625.

23 Named Plaintiffs assessment of the strength of this case reveals that the main

24 claims likely to lead to recovery are the meal and rest period and off-the-clock claims.

25 As to meal and rest claims, the impact of the "provide" standard in Brinker Rest.

26 Corp. v. Super. Ct. (Hohnbaum), 165 Cal. App. 4th 25 (2008) complicates the ability

27 to prove the claims. Moreover, the off-the-clock case is similarly complicated by the

28 fact that a significant part of the class worked in the warehouse and consistently use a

15.


1 time clock to record their time.33 Thus, while Class Counsel undoubtedly believes

2 that Named Plaintiffs claims are meritorious, they are also experienced and realistic,

3 and understand that the outcome of trial, and of any appeals that would inevitably

4 follow a successful trial, are inherently uncertain and the settlement in this case

5 reflects the strength of the case under the current facts.

6 2. The Risks Inherent In Continued Litigation Weigh Strongly In

7 Favor Of Granting Final Approval.

8 When entering into the Settlement, Counsel on both sides have clearly

9 perceived these risks and uncertainties, and believe in good faith that the proposed

10 resolution is a fair, reasonable and adequate compromise. See 4 Newberg on Class

11 Action 4th (4th ed. 2002); Class Plaintiffs v. City of Seattle, 955 F. 2d 1268, 1276 (9th

12 Cir. 1992); Van Bronkhorst v. Safeco Corp., 529 F. 2d 943, 950 (9th Cir. 1976). As

13 exemplified in the motion for preliminary approval, the Parties explicitly prepared and

14 considered various risk models and the various approaches to evaluate this case. The

15 Parties considered and argued over the appropriateness of certain risk levels and the

16 potential that the developing evidence can alter these assessments. Consequently, any

17 analysis of the risks attendant to this case favors final approval of the settlement. See

18 Nat'I Rural Telecom. Cooperative v. DirecTV Inc., 221 F.R.D. 523, 526 (C.D. Cal.

19 2004) (internal quotations and citations omitted) ("Unless the settlement is clearly

20 inadequate, its acceptance and approval are preferable to lengthy and expensive

21 litigation with uncertain results.")

22 Indeed, settlements are favored, particularly where, as here, the case is a

23 complex class actions and substantial resources can be conserved by avoiding the

24 time, cost, and rigor of prolonged litigation. See Officers for Justice, 688 F.2d at 625.

25 This action is complex from both a legal, evidentiary and technical perspectives. It

26 alleges 10 causes of action and spans a number of years and changing circumstances

27 at APC. The Parties and Court will have to proceed with a large number of Class

28 33 (Quintilone Decl., 1fl6.)16.


1 Members working in different jobs and different areas of the Company under a variety

2 of individual directives and working conditions. Each will have a variety of

3 individual claims under state and federal law, and person-specific circumstances. The

4 attendant records in the case appear in a variety of paper and electronic formats and

5 the witnesses will include both current and former employees and third parties, which

6 will also challenge any trial proceedings.34

7 "The Court should [also] consider the vagaries of litigation and compare the

8 significance of immediate recovery by way of the compromise to the mere possibility

9 of relief in the future, after protracted and expensive litigation." Oppenlander v.

10 Standard Oil Co. (Indiana), 64 F.R.D. 597, 624 (D. Colo. 1974); see Young v. Katz,

11 447 F.2d 431, 434 (5th Cir. 1971). Included in this consideration is "the likely

12 expenses of continuing the litigation and its prospects for relief for the class." See

13 Newberg and Conte, Newberg On Class Actions (4th Ed. 2002) at§ 11:50, 155. Any

14 future litigation in this case will remain hard fought and expensive. Should the

15 Settlement not be approved, Defendant remains determined to defend its interest and

16 challenge the claims, and to continue a zealous defense of Named Plaintiffs claims

17 through motion practice, trial and appeal.35 As the litigation continues, the complex

18 legal analyses required and the extensive evidence relating to each cause of action and

19 the corresponding affirmative defenses will exponentially increased the cost of the

20 litigation.

21 Were it to continue, this case would probably take years to litigate, forcing the

22 Parties to expend an enormous amount of resources. In particular, the preparation for

23 a class action trial would consume months, and a trial would span weeks (if not

24 longer). If this case had not settled, a motion for class certification, a possible appeal,

25

26

27

28 35

34 (Hart Dec., 18.)

(See Id.,W 1-14.)17.


1 post-certification merits discovery, and trial preparation would have exacted a

2 significant toll on the Parties and the Court.

3 At the end of the day, the Class Members could end up with nothing.36 The

4 Settlement, on the other hand, provides all Class Members, regardless of their means,

5 with the opportunity of substantial relief in a prompt and efficient manner, which the

6 Parties submit, favors granting final approval.

7 3. The Risk of Certifying and Maintaining Class Action Status

8 Through Trial.

9 The Court should also consider the risk of maintaining class action status.

10 Here, Named Plaintiff also faces a serious risk in maintaining class action status

11 through trial, based on current trends in the law. Specifically, the Supreme Court's

12 decision in Wal-Mart Stores, Inc. v. Dukes, U.S. , 131 S. Ct. 2541, 180 L.

13 Ed. 2d 374 (2011), substantially undermines Named Plaintiffs ability to certify a

14 class action. Named Plaintiff must affirmatively demonstrate both that common

15 questions of law and fact exist and that the methodology utilized for showing harm on

16 a class-wide basis actually works. Defendant believes Dukes forecloses "trials by

17 formula," finding that this methodology violates its due process rights because it does

1 g not allow defendants to challenge and rebut any claims inevitably resulting in payment

19 to persons not damaged, it poses issues. Federal courts have cited Dukes to deny and

20 decertify cases. E.g., Cruz v. Dollar Tree Inc., 2011 U.S. Dist. Lexis 73938 *12 (N.D.

21 Cal. July 7, 2011) citing Mario II [Mario v. United Parcel Serv., Inc., 2011 U.S. App.

22 LEXIS 8664 (9th Cir. Apr. 28, 2011)] and Dukes (internal citations omitted); Lee, et

23 al v. ITT Corp., 2011 U.S. Dist. LEXIS 70190 (W.D. Wash. June 24, 2011);

24 Morangelli, et al. v. Chemed Corp ., et al , 2011 U.S. Dist. LEXIS 73807 (E.D.N.Y.

25 July 8, 2011); Altier v. Worley Catastrophe Response, LLC, 2011 U.S. Dist. LEXIS

26 85696 (E.D. La. July 26, 2011); Corwin v. Lawyers Title Insurance Co., 2011 U.S.

27

28 36 (Quintilone Dec., ̂ 20 [indicating continued litigation would outweigh benefits].)18.


1 Dist. LEXIS 84232 (E.D. Mich. Aug. 1, 2011); Macgregor, et al. v. Farmers

2 Insurance Exchange, 2011 U.S. Dist. LEXIS 80361 (D. S.C. July 22, 2011). All of

3 these cases demonstrate a potential risk to the Plaintiff Class.

4 Defendants have agreed not to object to certification for purposes of settlement.

5 However, if approval was not given and if Named Plaintiff were to proceed, she

6 would risk the same finding being applied to this case, and the risks associated with

7 achieving and maintaining class certification favor final approval.

8 4. The Amount Offered In Settlement And Benefits To The Class

9 Of The Proposed Settlement Support Final Approval.

10 In this case, the Court has ordered that Named Plaintiff "provide an estimate of

11 likely recovery and an articulated basis for concluding that a settlement fund of

12 $1,085,000 is reasonable."37 In making this assessment, "[t]he proposed settlement is

13 not to be judged against a hypothetical or speculative measure of [achievement]."

14 Officers for Justice, 688 17 F.2d at 625. The determination to be made is that the

15 settlement negotiated for the Class falls within the range of reasonableness. See

16 Linney v. Cellular Alaska P'ship, 151 F.3d 1234, 1242 (9th Cir. 1998) (the fact that a

17 proposed settlement may only amount to a fraction of the potential recovery does not

18 mean that the proposed settlement is grossly inadequate and should be•30

19 disapproved).

20 The actual amounts to be recovered by Claimants supports settlement in this

21 case. The class as a whole recovered a fairly significant amount, with the average

22 payout of $2,101.35 and the highest amount recovered by a Claimant will be

23

24

25 37

26 38

(Preliminary Approval Order at 10.)

In addition, this factor does not focus on actual awards to each Class Member.27

Lane v. Facebook, Inc., 696 F.3d 811, 823 (9th Cir. 2012). Rather it is the28

settlement, taken as a whole that is relevant. Lane, 696 F.3d at 824.

19.


1 $2,812.31.39 From the discovery and investigation conducted, Class Counsel were

2 able to determine that the proposed Settlement was fair, reasonable adequate and in

3 the best interest of the Class Members in light of the known facts and circumstances,

4 including the risks of significant delay, open issues pending in the California Supreme

5 Court, issues related to certification risks, and Defendant's asserted defenses.40

6 As explained in the motion for preliminary approval, to allow for a meaningful

7 discussion at the mediation the Parties utilized several assumption tools to evaluate

8 the risk in this case and adjusted the risks based on several factors, including—among

9 other things—recent case law, likelihood of success at certification, likelihood of

10 success on the merits, and varying assumptions of alleged non-compliance with

11 California law. Plaintiff estimates a potential recovery at trial of $10,097,019.00

12 based on the defendants analysis of the 67,612 workweeks referenced in the

13 Declaration of Mr. Quintilone.41

14 As explained in the motion for preliminary approval, when properly assessing

15 the certification and other risks, the amount awarded equals 100% recovery. That is,

16 when appropriately assessing the associated risk factors involved in the case (such as

17 for certification, summary judgment, affirmative defenses, the potential for summary

18 judgment, the risks posed by the California Supreme Court's decision in Brinker

19 Rest. Corp. v. Super. Ct. (Hohnbaum), 165 Cal. App. 4th 25 (2008)), the Settlement

20 amount equals 100% recovery. As a result, any ruling should consider the context in

21 which the assessment is made.

22 No matter how the projection is considered it is adequate. In this regard,

23 Courts recognize that even if "the relief afforded by the proposed settlement is

24 substantially narrower than it would be if the suits were to be successfully litigated,"

25

26 39

27 40

28 41

(BuiDec.1Hf8-10.)

(Quintilone Dec., Iffl 16, 20.)

(Quintilone Dec., ^ 13.)20.


1 negotiated settlements should be upheld because "the public interest may indeed be

2 served by a voluntary settlement in which each side gives ground in the interest of

3 avoiding litigation." Air Line Stewards, etc., Loc. 550 v. American Airlines, Inc. 455

4 F.2d 101, 109 (7th Cir. 1972). More specifically, courts in the Ninth Circuit have

5 observed: "simply because a settlement may amount to only a fraction of the

6 potential recovery does not in itself render it unfair or inadequate. Compromise is the

7 very nature of settlement." Boydv. Bechtel Corp., 485 F. Supp. 610, 624 (N.D. Cal.

8 1979); see also Nat'I Rural Telecomm. Coop. v. DirecTV, Inc., 221 F.R.D. 523, 527

9 (C.D. Cal. 2004) (it is "well settled law that a proposed settlement may be acceptable

I o even though it amounts to only a fraction of the potential recovery"); Officers for

I1 Justice, 688 F.2d at 628; Linney v. Cellular Alaska Partnership, 151 F.3d 1234, 1242

12 (9th Cir. 1998) (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448, 455 & n.2

13 (2nd Cir. 1974)).

14 Even when discounting any risk of losing certification, summary judgment and

15 most affirmative defenses, the recovery will equal about 10% of the potential

16 recovery. This amount was arrived at in good faith and is well within the range of

17 reasonableness. See e.g., In re Omnivision Tech., Inc., 2008 WL 123936 (N.D. Cal.

18 2008) ($13.75 million settlement approved despite over $151.8 million estimate of

19 damages through trial). The Settlement here is significantly more than a "fraction."

20 The case should therefore be deemed reasonable and fair under the circumstances.

21 5. The Extent of Discovery Completed and the Stage of the

22 Proceedings.

23 As discussed, Settlement in this case was only reached in conjunction with the

24 adequate exchange of information. See Boydv. Bechtel Corp., 485 F. Supp. 610, 616-

25 17 (N.D. Cal. 1979) (stage of proceeding considered). The Proposed Settlement was

26 reached after several years of investigation and litigation. Named Plaintiff and

27 Defendant worked diligently to exchange evidence and information to properly

28 evaluate the case for mediation and the litigation. As Named Plaintiffs Counsel has

21.


1 explained, the investigation leading up to the Settlement was robust. Class Counsel

2 carefully and fully reviewed and analyzed information related to liability issues and

3 damages.42 As a consequence, the level of discovery supports final approval of the

4 Settlement.

5 6. The Experience and Views of Counsel Favor Final Approval.

6 "With regard to class action settlements, the opinions of counsel should be

7 given considerable weight both because of counsel's familiarity with this litigation and

8 previous experience with cases." West v. Circle K Stores, Inc., 2006 U.S. Dist.

9 LEXIS 76558, * 17-18 (E.D. Cal. 2006); Nat'I Rural Telecom. Cooperative v.

10 DirecTV Inc., 221 F.R.D. 523, 528 (C.D. Cal. 2004) (citing In re Painewebber Ltd.

11 P'ships Litig., 171 F.R.D. 104, 125 (S.D.N.Y. 1997)). Class Counsel in this case have

12 set forth qualifications and affirmed by declaration that they are seasoned class-action

13 attorneys with significant experience. Class Counsel support the Settlement as fair,

14 reasonable, and adequate, and in the best .interests of the class as a whole.43

15 Considerable weight should be afforded to these views and final approval given since

16 the "[p]arties represented by competent counsel are better positioned than courts to

17 produce a settlement that fairly reflects each party's expected outcome in the

1 g litigation." In re Pacific Enters. Sec. Litig., 47 F.3d 373, 378 (9th Cir. 1995).

19 7. Both Federal and State Officials Have Been Provided with the

20 Opportunity to Review and Consult Regarding the Settlement

21 Another factor is the presence of a governmental participant. See Hanlon, 150

22 F.3d at 1026. This case was removed based on CAP A, and the Parties have notified

23 responsible federal and state officials to provide them with the opportunity to

24 intervene. Defendants notified both federal and state officials and supplied them with

25 various relevant documents to the Settlement. These governmental agencies have had

26

27 42 (See Quintilone Dec.)28 43 (Quintilone Dec., f 16.)

22.


1 the opportunity to weigh in on the proposed Settlement and have not made known any

2 concerns that the Agreement is unfair in any respect.44 The Court should approve the

3 Settlement given the lack of any indication that any government entity disapproves of,

4 or objects to, the Settlement or its terms.

5 8. The Reaction Of Class Members To The Settlement Favors

6 Approval.

7 A certain number of objections or requests for exclusion are to be expected in a

8 class action. See, e.g., In re Austrian & German Bank Holocaust Litig, 80 F. Supp. 2d

9 164, 178 (S.D.N.Y. 2000). "If only a small number of objectors are received, that fact

10 can be viewed as indicative of the adequacy of the settlement." In re Austrian &

11 German Bank Holocaust Litigation, 80 F.Supp.2d 164, 175 (S.D.N.Y. 2000). In

12 Stoetzner v. US. Steel Corp., 897 F.2d 115, 118-19 (3d Cir. 1990), for example, the

13 court found that objections by over 10% of the class (29 class members out of 281)

14 "strongly favors settlement."

15 In this case no one has asked to be excluded from the Settlement. In addition,

16 there has been no objection lodged as of the date of this Motion. Despite having the

17 means, method and opportunity to object, no one has raised any issue about the

18 settlement.45

19 Where, as here, no one objects to or opts out of the Settlement, the Court should

20 interpret that response as evidence that the agreement is not the result of fraud,

21 collusion or other unfairness. In the same way, the Court should view this as a strong

22 indicator of the fairness and adequacy of the settlement. See In re Austrian &

23 German Bank Holocaust Litigation, 80 F. Supp. 2d at 175; see also Marshall, 550

24 F.2d at 1178; Stoetzner v. U.S. Steel Corp., 897 F.2d 115, 118-119 (3d Cir. 1990) (29

25 objectors out of 281 class members "strongly favors settlement"); Laskey v. Int'l

26

27 44 (Hart Dec., 119.)28 45 (Bui Dec.H10-12.; Quintilone Dec.l 31.)

23.


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PROOF OF SERVICE

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PROOF OF SERVICE

I, the undersigned, declare as follows:

I am a citizen of the United States, over the age of 18 years, and not a party to the within action. I am an employee of or agent for Quintilone & Associates, whose business address is 22974 El Toro Rd., Suite 100, Lake Forest, CA 92630-4961.

On December 5, 2012, I served the foregoing document(s):

MEMORANDUM OF P&A ISO JOINT MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

on the following parties in this action addressed as follows:

SEE ATTACHED SERVICE LIST ______ (BY MAIL) I caused a true copy of each document, placed in a sealed envelope with postage fully

paid, to be placed in the United States mail at Lake Forest, California. I am "readily familiar" with this firm's business practice for collection and processing of mail, that in the ordinary course of business said document(s) would be deposited with the U.S. Postal Service on that same day. I understand that the service shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained on this affidavit.

_______ (BY PERSONAL SERVICE) I delivered each such document by hand to each addressee above.

__X____ (BY OVERNIGHT DELIVERY) I caused a true copy of each document, placed in a sealed envelope with delivery fees provided for, to be deposited in a box regularly maintained by Federal Express or Overnight Express. I am readily familiar with this firm's practice for collection and processing of documents for overnight delivery and know that in the ordinary course of Quintilone & Associates’ business practice the document(s) described above will be deposited in a box or other facility regularly maintained by Federal Express or Overnight Express or delivered to a courier or driver authorized by Federal Express or Overnight Express to receive documents on the same date it is placed at Quintilone & Associates for collection.

___X___ (BY E-MAIL) I caused a true and correct copy of each document to be delivered by Electronic Mail.

Executed on December 5, 2012, at Lake Forest, California ___X_____ (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at

whose direction the service was made.

________________________________ FERNANDO GUZMAN


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PROOF OF SERVICE

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SERVICE LIST

J. Kevin Lilly, Esq. LITTLER MENDELSON, APC 2049 Century Park East, Fl 5 Los Angeles, Ca 90067 Tel: (310) 553-0308 Fax: (310) 553-5583 [email protected]

Counsel for Defendants SCHNEIDER ELECTRIC USA INC.

James E. Hart, Esq. Heather M. Peck, Esq. LITTLER MENDELSON, APC 2050 Main Street, Ste 900 Irvine, Ca 92614 Tel: (949) 705-3000 Fax: (949) 724-1201 [email protected] [email protected] Roger R. Carter, Esq. Bianca A. Sofonio, Esq. THE CARTER LAWFIRM 2030 Main Street, Thirteenth Floor Irvine, CA 92614-7220 Telephone No. (949) 260-4737 Facsimile No. (949) 260-4754 [email protected] [email protected]

Counsel for Defendants SCHNEIDER ELECTRIC USA INC. Co-Counsel for Plaintiff and Class

Q&A Case No.: 10.01056


RICHARD E. QUINTILONE II, Bar No.200995 QUINTILONE ... · 1 SCOTT B. COOPER, Bar No. 174520 THE...

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