The Fund Class Action - Motion For Settlement

Case3:06-cv-07776-SC Document99 Filed12/10/08 Page1 of 28
1 David A. Lowe (State Bar #178811)

John T. Mullan (State Bar # 221149)
2 RUDY, EXELROD & ZIEFF, L.L.P.
351 California Street, Suite 700
3 San Francisco, CA 94104
4 Telephone: (415) 434-9800
Facsimile: (415) 434-0513
5 Email: dal@rezlaw.com
Email: jtm@rezlaw.com
6
Attorneys for Plaintiffs
7
8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA
10 SAN FRANCISCO DIVISION
11
RUDY, EXELROD & ZIEFF, LLP.
RICHARD PRENTICE, CHRISTIAN Case No. C-06-7776 SC

351 CALIFORNIA STREET, SUITE 700
12
MILLER, and TIFFINEY
SAN FRANCISCO, CA 94104
13 PETHERBRIDGE, on their own behalf and

on behalf of classes of those similarly PLAINTIFFS’ NOTICE OF MOTION
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situated, AND MOTION FOR ORDER: (1)

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PROVISIONALLY CERTIFYING
15 Plaintiff, SETTLEMENT CLASS; (2)
PRELIMINARILY APPROVING
16 vs. CLASS ACTION SETTLEMENT AND
PLAN OF DISTRIBUTION; (3)
17 FUND FOR PUBLIC INTEREST DIRECTING DISTRIBUTION OF
RESEARCH, INC., NOTICE OF THE SETTLEMENT;
18 AND (4) SETTING A SCHEDULE
Defendant. FOR THE FINAL SETTLEMENT
19 APPROVAL PROCESS;
MEMORANDUM OF POINTS AND
20 AUTHORITIES IN SUPPORT
THEREOF
21
Date: February 6, 2009
22 Time: 10:00 a.m.
Court: Courtroom 1
23 / Judge: Hon. Samuel Conti
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PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY SETTLEMENT APPROVAL
CASE NO. C-06-7776 SC
1 NOTICE OF MOTION AND MOTION
2 NOTICE IS HEREBY GIVEN that Plaintiffs Rich Prentice, Christian Miller, and Tiffiney
3 Petherbridge hereby do move the Court as follows:
4 (1) To preliminarily approve the Settlement and Agreement;
5 (2) To certify named Plaintiffs Rich Prentice, Christian Miller, and Tiffiney
6 Petherbridge as representatives of the FLSA Collective Action Class and the California Class,
7 and Plaintiff Christian Miller as representative of the New York Class (“Class Representatives”);
8 (3) To make appropriate findings regarding the previously conditionally certified
9 FLSA Collective Action and to preliminarily certify the California and New York Classes for
10 purposes of settlement;
11 (4) To appoint David A. Lowe, and John T. Mullan of Rudy, Exelrod & Zieff, LLP as
Class Counsel;
12
13 (5) To approve, and direct mailing of, the proposed Class Notice (including notice of
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the right to opt-out of the Classes);

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15 (6) To schedule a fairness hearing on the question of whether the proposed settlement
16 should be finally approved as fair, reasonable, and adequate as to the members of the Settlement
17 Classes; and
18 (7) To preliminarily approve service payments to the Class Representatives and costs
19 of administration payable to the Claims Administrator.
20 This motion is based on the Complaint, the Stipulation of Settlement and Release, the
21 Memorandum of Points and Authorities, and the Declaration of David A. Lowe filed herewith in
22 support of this Motion; the other records, pleadings, and papers filed in this action; and upon such
23 other documentary and oral evidence or argument as may be presented to the Court at the hearing
24 of this Motion.
25 Respectfully submitted,
26 Dated: December 10, 2008 By: /s_David A. Lowe

David A. Lowe
27 Attorneys for Plaintiffs
28
1
1 TABLE OF CONTENTS
Page(s)
2
NOTICE OF MOTION AND MOTION..........................................................................................1
3
MEMORANDUM OF POINTS AND AUTHORITIES..................................................................1
4
I. INTRODUCTION................................................................................................................1
5
6 II. HISTORY AND STATUS OF THE CASE.........................................................................2
7 III. SUMMARY OF SETTLEMENT TERMS ..........................................................................3
8 IV. CLASS CERTIFICATION OF PLAINTIFFS’ CLAIMS UNDER RULE 23 IS

APPROPRIATE ...................................................................................................................6
9
A. The California and New York Classes Each Meet the Requirements of
10 Rule 23(a). ................................................................................................................7
11 1. Numerosity ...................................................................................................7
12
2. Commonality ................................................................................................7
13
3. Typicality......................................................................................................8
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4. Adequacy......................................................................................................8
15
B. The Proposed Settlement Classes Meet the Requirements of Rule 23(b)(3). ........10
16
C. The Previously-Certified FLSA Collective Action Should be Limited to
17 those who Filed Consents to Join the Litigation and who Worked for Fund
18 Prior to May 7, 2007, and This Court Should Toll the Statute of
Limitations for Those Individuals who Filed Consents to Join the
19 Litigation and who Worked for Fund After May 7, 2007. .....................................10
20 V. PLAINTIFFS’ COUNSEL SHOULD BE APPOINTED AS CLASS COUNSEL. ..........12
21 VI. THE PROPOSED SETTLEMENT MERITS PRELIMINARY APPROVAL..................12

22 A. The Terms of the Proposed Settlement Are Fair....................................................13
23 1. The Settlement Is The Product of Serious, Arms-Length, Informed
24 Negotiations................................................................................................14
25 2. The Payments to the Named Representatives For Their Service to

the Class Are Reasonable and Routinely Awarded....................................14
26
3. The Proposed Plan of Distribution is Fair and Reasonable........................15
27
B. The Settlement Falls Within the Range of Reasonableness. ..................................17
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i
1 1. The Work Performed by Class Counsel Supports the Settlement..............17
2 2. Liability Is Contested, and the Settlement Provides for Reasonable

Compensation for Class Members’ Damages. ...........................................17
3
VII. THE PROPOSED CLASS NOTICE AND SETTLEMENT DISTRIBUTION
4 PROCESS ARE APPROPRIATE......................................................................................18
5
A. The Class Notice Satisfies Due Process. ................................................................18
6
B. The Notice Plan and Claims Process are Appropriate. ..........................................20
7
VIII. THE COURT SHOULD SET A FINAL SETTLEMENT APPROVAL
8 SCHEDULE. ......................................................................................................................20
9 IX. CONCLUSION ..................................................................................................................21
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1 TABLE OF AUTHORITIES
2 CASES
3 American Pipe & Const. Co. v. Utah,
4 414 U.S. 538 (1974) .......................................................................................................... 11
5 Armstrong v. Martin Marietta Corp.,

138 F.3d 1374 (11th Cir. 1998) ......................................................................................... 11
6
Barnhill v. Saunders,
7 125 Cal.App.3d 1 (1981) ................................................................................................... 17
8
Blackie v. Barrack,
9 524 F.2d 891 (9th Cir. 1975) ............................................................................................. 10
10 Torrisi v. Tucson Electric Power Co.,

8 F.3d 1370 (9th Cir. 1993) ............................................................................................... 20
11
12 Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) ................................................................................... 8, 9, 10
13
Harris v. Palm Springs Alpine Estates, Inc.,
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14 329 F.2d 909 (9th Cir. 1964) ............................................................................................... 7

15
Ingram v. The Coca-Cola Co.,
16 200 F.R.D. 685 (N.D. Ga. 2001) ....................................................................................... 14
17 In re Vitamins Antitrust Litig.,

2001 WL 856292 (D.D.C. July 25, 2001) ......................................................................... 13
18
Lightbourn v. County of El Paso, Tex.,
19
118 F.3d 421 (5th Cir. 1997) ............................................................................................... 8
20
McNamara v. Bre-X Minerals Ltd.,
21 214 F.R.D. 424 (E.D. Tex. 2002) ...................................................................................... 13
22 Mendoza v. United States,
23 623 F.2d 1338 (9th Cir. 1980) ........................................................................................... 19
24 In re Michael Milken & Associates Sec. Litigation,

150 F.R.D. 57 (S.D.N.Y. 1993)......................................................................................... 20
25
Morelock Enterprises, Inc. v. Weyerhaeuser Co.,
26 2004 WL 2997526 (D. Or. Dec. 16, 2004)........................................................................ 12
27
Murray v. Local 2620, District Council 57, AFSCME, AFL-CIO,
28 192 F.R.D. 629 (N.D. Cal. 2000) ........................................................................................ 7
iii
1
Rosario v. Livaditis,
2 963 F.2d 1013 (7th Cir. 1999) ............................................................................................. 8
3 Sorenson v. Concannon,
4 893 F.Supp. 1469 (D. Or. 1994).......................................................................................... 7
5 In re United Energy Corp. Solar Power Modules Tax Shelter Investments Sec. Lit.,
122 F.R.D. 251 (C.D. Cal. 1988) .................................................................................... 8, 9
6
Van Bronkhorst v. Safeco Corp.,
7 529 F.2d 943 (9th Cir. 1976) ............................................................................................. 12
8
Van Vranken v. Atlantic Richfield Co.,
9 901 F.Supp. 294 (N.D. Cal. 1995)..................................................................................... 14
10 STATUTES, RULES AND REGULATIONS

11
Federal Rules of Civil Procedure, Rule 23.............................................................................passim
12
California Business and Professions Code
13 Section 17200 ...................................................................................................................... 8

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14 California Labor Code

§§ 201-203......................................................................................................................... 16
15
16 OTHER AUTHORITIES
17 4 Newberg on Class Actions

§ 11.25 ............................................................................................................................... 13
18
4 Newberg on Class Actions
19
§ 11.41 (4th ed. 2002) ....................................................................................................... 13
20
Manual for Complex Litigation – Fourth
21 § 21.632 ............................................................................................................................. 13
22
23
24
25
26
27
28
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1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiffs Rich Prentice, Christian Miller, and Tiffiney Petherbridge, on behalf of present
4 and former Canvassers and Field Managers employed throughout the country by The Fund for
5 Public Interest Research, Inc. ( “Fund”), seek preliminary approval of a proposed settlement of
6 this action, which asserts claims for 1) FLSA Overtime and Minimum Wage Violations; and, as
7 to present and former California Canvassers and Field Managers, (2) Violations of California
8 Overtime and Minimum Wage Provisions; (3) California Waiting Period Penalties; (4) Violations
9 of California Record-Keeping Provisions; (5) Violations of California Meal and Rest Period
10 Provisions; (6) Violations of the California Unfair Competition Law; (7) Conversion; and, as to
11 present and former New York Canvassers and Field Managers, (8) Violations of New York
Overtime Provisions, and (9) Violations of New York “Spread of Hour” Provisions. The
12
13 proposed Joint Stipulation of Settlement and Release (“Settlement”)1 resolves all of the named
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14 plaintiffs’ and Class Members’ stated claims for overtime compensation and related penalties
15 against Defendant Fund in exchange for the payment by Defendant of $2.15 million.
16 The proposed Settlement and plan of distribution were the product of non-collusive
17 negotiations by informed counsel and fall well within the range of possible approval.
18 Accordingly, Plaintiffs request that the Court: (1) preliminarily approve the settlement; (2) certify
19 Plaintiffs Rich Prentice, Christian Miller, and Tiffiney Petherbridge as the Class Representatives;
20 (3) make appropriate findings regarding the previously conditionally certified FLSA Collective
21 Action and preliminarily certify a California Class and New York Class for purposes of
22 settlement (the state law classes are in addition to the previously certified FLSA collective
23 action); (4) appoint David A. Lowe, and John T. Mullan of Rudy, Exelrod & Zieff, LLP as Class
24
1
25 A copy of the fully executed Joint Stipulation of Settlement and Release is attached as
Exhibit 1 to the [Proposed] Order Granting Plaintiffs’ Motion For Order: (1) Provisionally
26 Certifying Settlement Class; (2) Preliminarily Approving Class Action Settlement and Plan of
Distribution; (3) Directing Distribution of Notice of the Settlement; and (4) Setting a Schedule
27 for the Final Settlement Approval Process.
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1
1 Counsel; (5) approve, and direct mailing of, the proposed Class Notice (including notice of the
2 right to opt-out of the Classes); (6) schedule a fairness hearing on the question of whether the
3 proposed settlement should be finally approved as fair, reasonable, and adequate as to the
4 members of the Settlement Classes; and (7) preliminarily approve service payments to the three
5 Class Representatives, in the amount of $10,000 each, and costs of administration payable to the
6 Claims Administrator, in the estimated amount of $119,370.
7 II. HISTORY AND STATUS OF THE CASE
8 On December 19, 2006, Rich Prentice, Christian Miller and Tiffiney Petherbridge
9 (“Plaintiffs”) on behalf of themselves and current and former Canvassers and Field Managers
10 filed an alleged FLSA collective action and state law class actions lawsuit against Fund entitled
11 Rich Prentice, et al. v. The Fund for Public Interest Research, Inc., Case No. C 06-7776 SC in
12 the United States District Court for the Northern District of California (“the Action”).
13 Before and during the pendency of this Action, Class Counsel has conducted a thorough
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14 investigation into the facts of this action, including a review of relevant documents, and has
15 diligently pursued an investigation of Plaintiffs’ and the Classes’ claims against Fund. Lowe
16 Decl., ¶ 17. During the litigation, Class Counsel has successfully pursued a Motion for Leave to
17 Send Hoffmann-La Roche Notice. Id. at ¶ 18. Pursuant to Plaintiffs’ motion, this Court
18 conditionally certified Plaintiffs’ claims for violations of the FLSA as an FLSA collective action,
19 and ordered that notice of the pendency of the FLSA collective action, along with a “Consent to
20 Join” form, be mailed to all current and former Fund employees who held a covered position at
21 any time in the three years prior to the date of the notice mailing. Notice of this Action was sent
22 to thousands of present and former Fund Canvassers and Field Managers (most of whom worked
23 for Fund for one week or less). Approximately 770 present and former Fund Canvassers and
24 Field Managers filed consents to join this Action. Id.
25 Subsequent to the close of the opt-in period, Class Counsel learned that, as of May 7,
26 2007, Fund began paying its canvassing staff for overtime and observation days. Id. This
27 unilateral reclassification simultaneously limited Fund’s exposure for continuing overtime
28 violations and also accomplished one of Plaintiffs’ major objectives in bringing this suit.
2
1 Accordingly, while approximately 770 present and former Fund Canvassers and Field
2 Managers filed consents to join this Action, only approximately 550 of those opt-ins worked for
3 Fund prior to the May 7, 2007 date when Fund began paying its canvassing staff for overtime and
4 observation days. The remaining 220 opt-ins who worked only after reclassification are not
5 properly included in this case, as discussed below.
6 During discovery, Fund has provided, and Class Counsel have reviewed, thousands of
7 documents related to the claims asserted on behalf of the FLSA collective action class and
8 putative state classes; Fund has produced, and Class Counsel have deposed a corporate
9 representative of Fund who had knowledge regarding the facts relating to the litigation; Class
10 Counsel has defended the depositions of the named Plaintiffs and a number of FLSA collective
11 action opt-ins; Fund has also produced, and Class Counsel has reviewed, data on FLSA collective
12 action class and putative state class members, including salary, position worked, and dates of hire
13 and termination. Id. at ¶ 17. The parties also litigated Fund’s Motion to Compel Certain
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14 Information and Documents. Id. at ¶ 18.
15 After a mediation, conducted on June 24, 2008 by an experienced mediator, Honorable
16 Edward R. Infante (Magistrate, Retired), together with continuing discussions and negotiations
17 thereafter, this Settlement was reached after arms-length negotiations by and among the parties.
18 Id. at ¶ 19.
19 III. SUMMARY OF SETTLEMENT TERMS
20 The Settlement provides that Defendant will fund a non-reversionary Settlement Payment
21 of $2.15 million to compensate Plaintiffs Prentice, Miller and Petherbridge and the FLSA
22 Collective Action and state classes (collectively, the “Class” or “Settlement Class”) for their
23 damages, inclusive of attorneys’ fees and costs, notice, and administration expenses, and payment
24 to the three named Plaintiffs for their service to the Class.2 At the time of the Settlement, $2.15
25 million was approximately one half of Defendant’s net worth. On top of the $2.15 million,
26 2
Pursuant to Fed. R. Civ. P. 23(h), Plaintiff will make a separate motion for attorneys’
27 fees and reimbursement of costs.
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3
1 Defendant will pay the employer portion of payroll taxes (including, but not limited to, FICA and
2 FUTA) due on the payments of wages to Plaintiffs Prentice, Miller and Petherbridge and the
3 Settlement Class.
4 Of the $2.15 million settlement fund, approximately $1,350,000 will be allocated for
5 distribution directly to Class members as compensation for their lost wages and other damages,
6 and $30,000 will be sought as the total service payments to the three named Plaintiffs. Those
7 amounts, plus settlement administration expenses of approximately $119,3703 and Class
8 Counsel’s request for a 25% common fund fee ($537,000) and reimbursement of expenses in the
9 amount of up to $115,000,4 comprise the total $2.15 million Settlement Payment.
10 The Settlement includes a proposed settlement payment distribution plan, based on a
11 formula carefully designed by counsel who are experienced and accomplished in this type of
12 nationwide, multi-state wage and hour litigation to most fairly and accurately compensate
13 qualified claimants. Each member of the FLSA Collective Action Class and each state law Class
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14 Member who does not opt out of the settlement will receive a proportionate share of the net
15 settlement payment. The calculation of each Class Member’s share of the net settlement payment
16 will be pursuant to a formula that takes into account days worked during the applicable class
17 period and whether the Class member worked in California or New York.
18 The state class multiplication factors recognize that the California and New York state
19 law claims released by those class members provide for broader remedies than does the FLSA.
20 ///
21 ///
22 3
In the present motion, Plaintiffs seek payment of up to $119,370 in Settlement
23 administration expenses. This estimate of settlement administration costs is premised on
information that there are several thousand putative class members in each state law class. Lowe
24 Decl., ¶ 25, Exh. 1. However, as specified in the Settlement, if the reasonable expenses of the
claims administrator exceed $119,370, such additional reasonable expenses may be paid upon a
25 showing to and approval by the Court.
4
26 As Plaintiffs’ counsel will detail in their separate motion for attorneys’ fees and
reimbursement of costs, they have already incurred out-of-pocket expenses in the amount of
27 $112,107.30 in litigating this matter.
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4
1 The Settlement also provides for appointment of The Garden City Group, Inc. as Claims
2 Administrator to verify amounts due to claimants, and otherwise administer the settlement
3 process under the supervision of the parties and the Court. The settlement process set forth in the
4 Settlement provides for prompt notice to the proposed Settlement Class and an opportunity to opt
5 out of the claims subject to the Settlement or object to the Settlement.
6 As part of the Settlement, Class Members shall release and discharge Defendant from any
7 claims which arose on or before May 7, 2007 (the reclassification date) that were averred or
8 could have been averred based upon the facts alleged in the Complaint, including all claims
9 related to misclassification of exempt status, missed meal periods; failure to provide timely
10 accurate wage statements and maintain required payroll records; waiting time penalties; interest
11 and other penalties under federal and state law, including but not limited to the California Labor
12 Code, New York overtime and “spread of hour” provisions, the UCL, and the FLSA.
13 Members of the FLSA Collective Action Class and state law Class Members who do not
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14 opt-out of the Settlement will not be required to submit a claim form in order to participate in the
15 Settlement. The fund is non-reversionary – after payment of fees and costs, all of the remainder
16 will be paid to Class members, with no portion reverting to Defendant. The proceeds of any
17 improperly or untimely negotiated Settlement fund checks will, after the costs of administration,
18 the payment of attorneys fees and costs, and the Class Representatives’ service fees, be paid to
19 the designated cy pres recipient, the San Francisco Legal Aid Society – Employment Law Center.
20 Defendant denies any liability or wrongdoing of any kind associated with the claims
21 alleged in this case. Defendant further contends, among other things, that it has complied with
22 the FLSA, California and New York state wage and hour laws, and the UCL. Plaintiffs believe
23 that they have filed meritorious actions based on alleged violations of the FLSA, California and
24 New York state wage and hour laws, and California Business and Professions Code Section
25 17200.
26 ///
27 ///
28 ///
5
1 IV. CLASS CERTIFICATION OF PLAINTIFFS’ CLAIMS UNDER RULE 23 IS

APPROPRIATE
2
In addition to the previously certified FLSA collective action class (“Sub-class A”),
3
through this motion, the parties jointly request the Court to make appropriate findings and to
4
certify the California (“Sub-class B”) and New York (“Sub-class C”) state law sub-classes. In
5
sum, the three sub-classes shall be defined as follows:
6
(1) Sub-class A which shall be the previously certified FLSA collective action class
7
who filed consents to join the Litigation and who worked for Fund as a Canvasser
8
or Field Manager in any state other than California or New York during the FLSA
9
Class Period (i.e., three years back from the date of each person’s consent to join
10
the Litigation through May 7, 2007).
11
(2) Sub-class B which shall be the “California Class” comprised of anyone identified
12
in Fund’s payroll records as having worked for Fund in California as a Canvasser
13
or Field Manager during the California Class Period (i.e., December 19, 2002
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14
through May 7, 2007), who are sent notice of the Litigation and who do not opt-
15
out.
16
(3) Sub-class C which shall be the “New York Class” comprised of anyone identified
17
in Fund’s payroll records as having worked for Fund in New York as a Canvasser
18
or Field Manager during the New York Class Period (i.e., December 19, 2000
19
through May 7, 2007), who are sent notice of the Litigation and who do not opt-
20
out.
21
The state law Classes independently meet all four prerequisites of Rule 23(a) necessary to
22
class certification; numerosity, commonality, typicality, and adequacy of representation. Fed. R.
23
Civ. P. 23(a). In addition, the Classes each satisfy the requirements of Rule 23(b)(3):
24
predominance of common issues and superiority of the class action device.
25
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1 A. The California and New York Classes Each Meet the Requirements of Rule
23(a).
2
1. Numerosity
3
Rule 23(a)(1) requires that the proposed class be so numerous that joinder of all class
4
members is impracticable. Plaintiffs need not, however, show that the number is so large that it
5
would be impossible to join every class member. Harris v. Palm Springs Alpine Estates, Inc.,
6
329 F.2d 909, 913-914 (9th Cir. 1964); Murray v. Local 2620, Dist. Council 57, AFSCME, AFL-
7
CIO, 192 F.R.D. 629, 631 (N.D. Cal. 2000). Here, the Classes are clearly large enough to make
8
joinder impracticable. The California and New York Classes are each comprised of several
9
thousand current and former Canvassers and Field Managers.5 Each proposed Class therefore
10
satisfies Rule 23(a)(1)’s numerosity requirement.
11
2. Commonality
12
Under Fed. R. Civ. P. 23(a)(2), Plaintiffs must show that there is a question of law or fact
13
common to the class. Where a common nucleus of operative facts exists, commonality is usually
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met. See Sorenson v. Concannon, 893 F. Supp. 1469, 1479 (D. Or. 1994) (where system-wide
15
procedures are at issue, commonality exists).
16
Here, the requirement of a common question of law or fact is met as to the state law
17
Classes. The proposed California and New York Class Members’ claims all stem from the same
18
source: the allegation that they were misclassified as exempt and therefore not paid overtime
19
wages. Questions of law and fact common to the California and New York Classes include:
20
21 • Whether Fund’s policy and practice of classifying the Class Members as exempt
from overtime entitlement and failing to pay overtime to the Class Members
22 violates applicable California and/or New York law, including applicable statutory
and regulatory authority; and
23
24 • Whether Fund unlawfully failed to pay compensation to Class members for

missed meal and rest periods in violation of the UCL and applicable California
25 wage and hour laws; and
26 5
Fund’s payroll records produced in the course of discovery indicate that the majority of
27 its employees were employed by Fund for less than two weeks. Lowe Decl., ¶ 17.
28
7
1 • Whether Fund unlawfully failed to keep and furnish employees with records of
hours worked, in violation of applicable law.
2
As the Plaintiffs need only establish one common question of law or fact in order to meet
3
the low threshold set by Rule 23(a)(2), Plaintiffs’ above showing of common issues far surpasses
4
what is required.
5
3. Typicality
6
7 The named Plaintiffs’ claims are also typical of those of the Classes that they seek to
8 represent. Fed. R. Civ. P. 23(a)(3). Typicality gauges the similarity between the class
9 representative’s legal theories and those of the proposed class members. Lightbourn v. County of
10 El Paso, Tex., 118 F.3d 421, 426 (5th Cir. 1997). Courts have held that a representative
11 plaintiff’s claim is typical if it arises from the same course of conduct that gives rise to other class
12 members’ claims and is based on the same legal theory as the claims of the other class members.
13 See In re United Energy Corp. Solar Power Modules Tax Shelter Invs. Sec. Lit., 122 F.R.D. 251,
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14 256 (C.D. Cal. 1988) (“United Energy”); Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir.
15 1999). Factual differences may exist between the class representatives and the class members so
16 long as the claims arise from the same events or course of conduct and are based on the same
17 legal theories. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998).
18 Plaintiffs Prentice, Miller and Petherbridge’s California claims are typical of those of the
19 California Class, and Plaintiff Miller’s New York claims are typical of those of the New York
20 Class because they all arise out of Fund’s uniform policy of classifying Canvassers and Field
21 Managers as exempt, and of refusing to pay Canvassers and Field Managers overtime
22 compensation for overtime hours worked.
23 4. Adequacy
24 The proposed Class Representatives have and will continue to “fairly and adequately
25 protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The adequacy requirement has two
26 prongs: “(1) [t]hat the representative party’s attorney be qualified, experienced, and generally
27 able to conduct the litigation; and (2) that the suit not be collusive and plaintiff’s interests not be
28
8
1 antagonistic to those of the remainder of the class.” United Energy, 122 F.R.D. at 257. Both
2 elements are satisfied here.
3 First, Plaintiffs have retained counsel who are qualified and experienced to litigate this
4 action. The law firm of Rudy, Exelrod & Zieff, LLP have represented plaintiffs in numerous
5 wage and hour and other employment class actions.6
6 Second, Plaintiffs Prentice, Miller and Petherbridge have no interests antagonistic to the
7 interests of the proposed Settlement Classes. As noted above, under the proposed Settlement, the
8 named representatives will receive a supplemental service payment for their efforts on behalf of
9 the Class. Other than this specific payment, all of the Class members will receive a portion of the
10 balance of the Settlement fund based on days worked during the applicable class period and
11 whether the class member worked in California or New York. These allocations reflect the legal
12 and factual strengths of each claim and provide compensation to all class members based on their
13 time within the company and the strength of their legal claims. Thus, no “settlement allocation”
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14 questions are raised. Hanlon, 150 F.3d at 1020.
15 Moreover, “[p]otential plaintiffs are not divided into conflicting discrete categories,”
16 since they all claim overtime wages and related damages for work they performed as canvassing
17 workers for Defendant. Id. at 1021. Furthermore, there is no “structural conflict of interest based
18 on variations in state law,” since the California and New York state law claims are segregated
19 into separate Classes, and the differences in state law are compensated for in the plan of
20 distribution. Id. Finally, any state Class member who wishes to “opt out” of the Settlement may
21 do so and is provided ample notice of that right. See id. There is therefore no conflict of interest
22 between the named representatives and the Class members.
23 ///
24 ///
25 6
See Lowe Decl. in Support of Plaintiffs’ Notice of Motion and Motion For Order: (1)
26 Provisionally Certifying Settlement Classes; (2) Preliminarily Approving Class Action
Settlement and Plan of Distribution; (3) Directing Distribution of Notice of the Settlement; and
27 (4) Setting a Schedule for the Final Settlement Approval Process.
28
9
1 B. The Proposed Settlement Classes Meet the Requirements of Rule 23(b)(3).
2 Common issues of law or fact “predominate over any questions affecting only individual
3 members.” Fed. R. Civ. P. 23(b)(3). Defendant’s conduct is equally relevant to each proposed
4 Class member’s claims and damages.
5 The proposed Classes in this case are sufficiently cohesive to warrant adjudication by
6 representation. Hanlon, 150 F.3d at 1022. The representative Plaintiffs and all of the proposed
7 Class members seek overtime pay and related damages for work performed as Canvassers and
8 Field Managers; common questions about the exempt or non-exempt nature of the work
9 performed by the Class members predominate over individual questions, and the Class members’
10 potential legal remedies are identical within each Class. Any variation in damages is plainly
11 insufficient to defeat class certification. Blackie v. Barrack, 524 F.2d 891, 905-06 (9th Cir.
1975). Thus, the proposed Classes may be certified for settlement purposes.
12
13 The class action device proposed here “is superior to other available methods for the fair
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and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). This action allows all of
(415) 434-9800
14
15 the Settlement Class members’ claims to be fairly, adequately, and efficiently resolved to a
16 degree that no other mechanism or forum would provide. As in Hanlon, the alternative methods
17 of resolution are individual claims for a relatively small amount of damages. See 150 F.3d at
18 1023. These claims “would prove uneconomic for potential plaintiffs” because “litigation costs
19 would dwarf potential recovery.” Id. For this reason, a class action is the superior method of
20 resolution.
21 There are no issues of manageability under the Settlement that would preclude class
22 certification. As discussed below, the proposed plan of distribution and settlement process is
23 efficient and manageable.
24 C. The Previously-Certified FLSA Collective Action Should be Limited to those

who Filed Consents to Join the Litigation and who Worked for Fund Prior to
25 May 7, 2007, and This Court Should Toll the Statute of Limitations for Those
Individuals who Filed Consents to Join the Litigation and who Worked for
26 Fund After May 7, 2007.
27 Sub-class A, the previously certified FLSA Collective Action class who filed consents to
28 join the Litigation, should be limited to those Canvassers and Field Managers who worked for
10
1 Fund at some point during the period beginning three years back from the date of each person’s
2 consent to join the Litigation through May 7, 2007, the date when Fund began paying its
3 canvassing staff for overtime and observation days. That is, this Court should find that because
4 Fund’s canvassing staff began receiving overtime and observation day wages after the May 7,
5 2007 reclassification date, those Canvassers and Field Managers who previously filed consents to
6 join the FLSA Collective Action and who worked only after May 7, 2007 (approximately 220
7 opt-ins), are not “similarly situated” to the pre-May 7, 2007 Collective Action members who did
8 not receive pay for overtime and observation days, and are therefore not members of the FLSA
9 Collective Action.7
10 Moreover, the statute of limitations for the unpaid overtime and minimum wage claims
11 alleged in the Complaint should be tolled for those Canvassers and Field Managers who
12 previously filed consents to join the Litigation and who worked only after May 7, 2007.
13 American Pipe & Const. Co. v. Utah, 414 U.S. 538, 552-553 (1974) (commencement of class
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14 action tolls the statute of limitations for the purported class members until certification denied).
15 See also Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1379 (11th Cir. 1998) (applying
16 American Pipe tolling where purported collective action members were dismissed because they
17 were not similarly situated to the balance of the class). In a collective action, the statute of
18 limitations is tolled from the date the plaintiff files his or her consent to join form and begins to
19 run again on the date the court later decertifies in whole or in part the collective action.
20 Armstrong, 138 F.3d at 1385. Accordingly, this Court should toll the statute of limitations for
21 those approximately 220 Canvassers and Field Managers who previously filed consents to join
22 the Litigation and who only worked after May 7, 2007 from the date they filed their consents to
23 join this action through the date upon which the Court enters its Order finding that they are not
24
25 7
The Notice of Collective Action approved by the Court in this matter and mailed to
putative FLSA collective action members on or about November 16, 2007 informed the potential
26 opt-ins that filing a “Consent to Join” form did not guarantee that they would be able to
27 participate in this lawsuit, and such depended upon a final ruling from the Court that they are
“similarly situated” under the law. (See Dkt. No. 75, p. 3).
28
11
1 similarly situated and therefore not members of the FLSA collective action. (That is, the date
2 upon which the Court enters its Order Provisionally Certifying the Settlement Class and
3 Preliminarily Approving the Class Action Settlement).
4 V. PLAINTIFFS’ COUNSEL SHOULD BE APPOINTED AS CLASS COUNSEL.
5 Fed. R. Civ. P. 23(g) requires that courts consider the following four factors when
6 appointing class counsel: whether (1) counsel has investigated the class claims, (2) counsel is
7 experienced in handling class actions and complex litigation, (3) counsel is knowledgeable
8 regarding the applicable law, and (4) counsel will commit adequate resources to representing the
9 class. Morelock Enterprises, Inc. v. Weyerhaeuser Co., 2004 WL 2997526, *5 (D. Or. Dec. 16,
10 2004).
11 Plaintiffs’ counsel is well qualified and easily meets the standards of Rule 23(g), as set
12 forth in the Lowe Declaration. Lowe Decl., ¶¶ 2-15. Prior to and during this litigation, Counsel
13 conducted an extensive investigation of the class claims. Id. at ¶ 17. In addition, as set forth
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14 above, in Section IV, Plaintiffs’ counsel is very experienced and knowledgeable regarding
15 complex federal and state overtime class actions. Id. at ¶¶ 2-15.
16 Finally, Plaintiffs’ counsel have committed significant resources to representing the
17 classes, including over $112,000 in out-of-pocket expense, and have a demonstrated ability to
18 represent classes throughout complex litigation, as discussed above and in the Lowe Declaration.
19 Accordingly, appointment of Plaintiffs’ counsel as Class Counsel is appropriate.
20 VI. THE PROPOSED SETTLEMENT MERITS PRELIMINARY APPROVAL
21 The law favors settlement, particularly in class actions and other complex cases where
22 substantial resources can be conserved by avoiding the time, cost, and rigors of formal litigation.
23 Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th Cir. 1976). These concerns apply with
24 particular force in a case such as this, where an allegedly illegal practice affected thousands of
25 employees.
26 To grant preliminary approval of this class action settlement, the Court need find only that
27 the settlement is non-collusive and within the range of possible final approval, also described as
28 “the range of possible judicial approval.” In re Vitamins Antitrust Litig., WL 856292, at *4-5
12
1 (D.D.C. July 25, 2001); see also 4 Newberg on Class Actions § 11.41 (4th ed. 2002).
2 A. The Terms of the Proposed Settlement Are Fair.
3 As long as “preliminary evaluation of the proposed settlement does not disclose grounds
4 to doubt its fairness or other obvious deficiencies, such as unduly preferential treatment of class
5 representatives or of segments of the class, or excessive compensation for attorneys, and appears
6 to fall within the range of possible approval,” the court should preliminarily approve the
7 settlement. In re Vitamins, 2001 WL 856292, at *4-5 (quoting Manual for Complex Litigation,
8 Third (FJC 1995). The court may also direct the giving of notice to the class members of a final
9 approval hearing, “at which arguments and evidence may be presented in support of and in
10 opposition to the settlement.” McNamara v. Bre-X Minerals Ltd., 214 F.R.D. 424 (E.D. Tex.
11 2002) (quoting Manual for Complex Litigation, Third, at 237; 4 Newberg § 11.25 (quoting
same).8
12
13 Here, the parties negotiated the proposed Settlement in good faith and at arms length. As
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14 noted above, extensive discovery has allowed Class Counsel – who are very experienced wage
15 and hour class action attorneys – to assess the strengths and weaknesses of the claims against
16 Defendant and the benefits of the proposed Settlement under the circumstances of this case.
17 Counsel for both parties have conducted a thorough investigation into the facts of the case
18 and diligently investigated the Class Members’ claims against Defendant. Counsel for the Class
19 Members believe that the settlement is fair, reasonable, and adequate and is in the best interest of
20 the Class Members in light of all known facts and circumstances, including the risk of significant
21 delay and Defendant’s asserted defenses. The total settlement fund is significant in light of the
22 Defendant’s limited resources and its non-profit status.
23 ///
24 ///
25 8
The Fourth edition of the Manual for Complex Litigation was released in 2004, and
26 does not include this precise language, but instead suggests that if a court has “reservations”
about any of the issues described, it should “raise questions . . . and perhaps seek an independent
27 review . . . .” Manual 4th § 21.632. The end result is the same.
28
13
1 1. The Settlement Is The Product of Serious, Arms-Length, Informed

Negotiations.
2
The Settlement resulted only after extensive, arms-length settlement negotiations that
3
were conducted after rigorous discovery regarding the merits and damages of the disputed claims,
4
and under the supervision of experienced mediator Judge Infante. Lowe Decl., ¶¶ 17-19. The
5
negotiations were protracted, and the mediation itself required numerous follow up phone calls
6
on the part of Judge Infante. Id. at ¶ 19. For example, when the parties were unable to agree on a
7
cy pres beneficiary, the issue was briefed and submitted to Judge Infante, who selected the
8
Employment Law Center. Id. at ¶ 19. In sum, the proposed Settlement is the non-collusive
9
product of hard-fought litigation.
10
2. The Payments to the Named Representatives For Their Service to the
11 Class Are Reasonable and Routinely Awarded.
The payment of $10,000 to each of the Class Representatives is intended to recognize the
12
13 time and effort they expended on behalf of the Class. Indeed, “[c]ourts routinely approve
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incentive awards to compensate named plaintiffs for the services they provided and the risks they
(415) 434-9800
14
15 incurred during the course of the class action litigation.” Ingram v. The Coca-Cola Co., 200
16 F.R.D. 685, 694 (N.D. Ga. 2001), quoting In Re S. Ohio Correctional Facility, 175 F.R.D. 270,
17 272 (S.D. Ohio 1997)). In Coca-Cola, the court approved incentive awards of $300,000 to each
18 named plaintiff in recognition of the services they provided to the class by responding to
19 discovery, participating in the mediation process and taking the risk of stepping forward on
20 behalf of the class. Coca-Cola, 200 F.R.D. at 694; see also Van Vranken v. Atl. Richfield Co.,
21 901 F. Supp. 294 (N.D. Cal. 1995) (approving $50,000 participation award). See also Lowe
22 Decl., ¶¶ 5-13 (listing Plaintiffs’ counsel’s cases in which the courts awarded class representative
23 service payments of between $10,000 and $50,000).
24 In this case, the Class Representatives performed important services for the benefit of the
25 class: they provided information regarding the structure of the company and Canvassers’ and
26 Field Managers’ job duties during lengthy interviews, they produced relevant documents, and
27 worked with Plaintiffs’ counsel throughout the case. They responded to significant discovery
28 propounded by Fund, and all three traveled to San Francisco to be deposed. Lowe Decl., ¶ 20.
14
1 Accordingly, the payments to the Class Representatives are appropriate and justified as part of
2 the overall Settlement in light of their services to and risks taken on behalf of the Class.9
3 3. The Proposed Plan of Distribution is Fair and Reasonable.
4 As described above, the proposed plan of distribution takes into account a variety of
5 factors to ensure that the ultimate division of the settlement proceeds among Class members is
6 fair and accurate, while at the same time preserving the intended efficiencies of class action
7 litigation. To balance the goals of fairness and efficiency, the parties have agreed on the
8 following method of distribution:
9 A. The distribution formula shall assign ten points to those members of the three sub-
10 classes (that is, the FLSA Collective Action, the California Class and the New
11 York Class) who were employed as Canvassers or Field Managers for less than
12 five days during the applicable class period. Class members who were employed
13 for five days or longer will receive ten points, plus an additional five points for
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14 each workweek that the class member was employed as a Canvasser or Field
15 Manager during the applicable class period up through May 7, 2007. In addition,
16 the distribution formula shall assign a factor of one and one-half (1.5) to New
17 York sub-class members for weeks worked as a Canvasser or Field Manager in
18 New York during the applicable class period up through May 7, 2007, and a
19 factor of three (3) to members of the California sub-class for weeks worked as a
20 Canvasser or Field Manager in California during the applicable class period up
21 through May 7, 2007. The state class multiplication factors recognize that the
22 California and New York state law claims released by those class members
23 provide for broader remedies than does the FLSA. Each Class Member’s points
24 will be multiplied by the appropriate multiplication factor, if any, to arrive at their
25 assigned Points Total.
26 9
In addition to the service payments, the three named Plaintiffs will be authorized to
27 participate in the Settlement as Class Members.
28
15
1 B. Based on the above principles, each class member’s proportional share of the
2 whole set of individual amounts calculated shall be determined. That is, each
3 Class Member’s assigned Points Total will be divided by the sum of all Class
4 Members’ Points Total to arrive at each class member’s proportional share of the
5 Net Settlement Fund. If the total of the above amounts exceeds the available Net
6 Settlement Fund, then individual settlement amounts shall be proportionally
7 adjusted downward until the amount to be distributed equals the Net Settlement
8 Fund. If the total of the above amounts is less than the available Net Settlement
9 Fund, then individual settlement amounts shall be proportionally adjusted upward
10 until the amount to be distributed equals the Net Settlement Fund.
11 C. Any amount remaining in the Settlement Fund after distribution to the members
12 of the Class as set forth above based upon the agreed upon formula (for example
13 due to settlement checks returned undeliverable or the failure of Class members to

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14 negotiate settlement checks), will be paid by or on behalf of Fund as a cy pres
15 charitable contribution to The Legal Aid Society of San Francisco—Employment
16 Law Center.
17 These factors mean, for example, that if a Minnesota employee who opted into the FLSA
18 collective action, a California employee and a New York employee each worked for five days
19 plus one additional workweek during the relevant class periods, the Minnesota employee would
20 receive fifteen points, the California employee would receive 45 points and the New York
21 employee would receive 22.5 points.
22 These state law multipliers are a mechanism whereby California and New York
23 employees, who had stronger arguments to recover higher overtime premium payments and other
24 damages, receive a larger share of the Net Settlement Fund than their out of state counterparts.
25 For example, in California an employer is liable for waiting time penalties when an employee is
26 severed from employment and wages that have been earned are not timely paid. Cal. Labor Code
27 §§ 201-203. Penalty wages accrue based on the employee’s daily wage for each day that they are
28 due for a maximum of 30 working days. Cal. Labor Code § 203. No evil motive or intent to
16
1 defraud the employee of wages is required in order for waiting time penalties to be assessed.
2 Barnhill v. Saunders, 125 Cal. App. 3d 1 (1981).
3 This plan of distribution is fair, objective and will reasonably approximate the relative
4 damages suffered by Class members.
5 B. The Settlement Falls Within the Range of Reasonableness.
6 1. The Work Performed by Class Counsel Supports the Settlement.
7 As noted above, Class Counsel has vigorously investigated the claims asserted against
8 Fund. Class Counsel reviewed thousands of documents related to the claims asserted on behalf
9 of the FLSA collective action and putative state law classes; Fund has produced, and Class
10 Counsel has deposed, a corporate representative of Fund who had knowledge regarding the facts
11 relating to the litigation; Fund has produced, and Class Counsel has reviewed, data on putative
12 class members, including salary, position worked, and dates of hire and termination. Lowe Decl.,
13 ¶ 17.
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14 Furthermore, in the context of mediation, Class counsel received information from
15 Defendant related to the appropriate damages in this action including a detailed database of
16 payroll information. Using that data, as well as information collected by Plaintiffs’ counsel from
17 opt-ins regarding the average length of canvassers’ workdays, and the average number of days a
18 week a canvasser working in California was unable to take a thirty minute meal break, Plaintiffs
19 hired an expert who created damages estimates under federal and state law that relied on the work
20 location and work periods of class members. Id. Class counsel completed substantial
21 investigation and formal discovery in this case and thus negotiated the proposed Settlement with
22 ample knowledge as to the strengths and weaknesses of this case and the amounts necessary to
23 compensate Class members for their damages.
24 2. Liability Is Contested, and the Settlement Provides for Reasonable

Compensation for Class Members’ Damages.
25
26 Of particular relevance to the reasonableness of the proposed Settlement is the fact that
27 Defendant will vigorously contest Plaintiffs’ claims if the case does not settle. Defendant denies
28 both that the exempt classification of its employees was improper and that Defendant owes any
17
1 of its current and former employees overtime pay. Notwithstanding these arguments, the
2 Settlement commits Defendant to pay $2.15 million toward compensating Class Members for
3 their damages and efforts in the litigation; an amount reflecting a substantial percentage of
4 Defendant’s net worth.10
5 By any measure, the relief obtained is substantial. Assuming that the Court awards
6 attorneys’ fees of 25% of the Settlement Fund, litigation costs of up to $115,000, named plaintiffs
7 service payments totaling $30,000, and settlement administrative costs of approximately
8 $119,370, the Net Settlement Fund to be distributed to the class members – most of whom
9 worked for less than two weeks11 – will be approximately $1,350,000.12 In addition, the
10 Settlement requires Defendant to pay the employer’s share of the payroll taxes.
11 Although Plaintiffs believe that their claims have merit, they recognize that they would
12 face significant legal, factual, and procedural obstacles to recovering. In light of the strengths
13 and weaknesses of the case and Defendant’s limited means, Class Counsel believe that the
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14 Settlement easily falls within the range of reasonableness because it achieves a significant benefit
15 for the Class in a case where failure before or at trial is possible. Class Members will also
16 receive their Settlement benefit far faster than if they pursued their claims through trial and
17 appeal.
18 VII. THE PROPOSED CLASS NOTICE AND SETTLEMENT DISTRIBUTION

PROCESS ARE APPROPRIATE.
19
A. The Class Notice Satisfies Due Process.
20
Rule 23(c)(2)(B) provides that the court must direct to class members the best notice
21
practicable under the circumstances, including individual notice to all members who can be
22
///
23
24 10
Lowe Decl., ¶ 19.
25 11
Lowe Decl., ¶ 17.
26 12
Once the opt-out period has ended and the class has been fixed, Plaintiffs can provide
27 the Court with additional information as to individual recovery amounts.
28
18
1 identified through reasonable effort. The notice must concisely and clearly state in plain, easily
2 understood language:
3 • the nature of the action,
4 • the definition of the class certified,
5 • the class claims, issues, or defenses,
6 • that a class member may enter an appearance through

counsel if the member so desires,
7
• that the court will exclude from the Rule 23 classes any
8 member who requests exclusion, stating when and how
members may elect to be excluded, and
9
• the binding effect of a class judgment on class members
10 under Rule 23(c)(3).
11 Fed. R. Civ. P. Rule 23(c)(2)(B).

The content of the Proposed Notice13 fully complies with due process and Rule 23. It
12
13 provides the definition of the Classes, the time period covered by the Class and Collective
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14 Action, describes the nature of the action, including the Class claims, and explains the procedure
15 for making comments and objections. The Notice provides specifics regarding the date, time,
16 and place of the Final Approval Hearing, and informs Settlement Class members that they may
17 enter an appearance through counsel. The Notice also informs Class members how to exercise
18 their rights and make informed decisions regarding the proposed Settlement, and tells the putative
19 state Class members that if they do not opt out, the judgment will be binding upon them. The
20 Notice informs the Class about the application of Plaintiffs’ Counsel for reimbursement of costs
21 and attorneys’ fees from the Settlement Fund.
22 Moreover, the Class Notice describes the terms of the Settlement and informs Class
23 Members how individual recoveries will be determined. Courts have approved class notices even
24 when they have provided only general information about a settlement. See, e.g., Mendoza v.
25 United States, 623 F.2d 1338, 1351 (9th Cir. 1980) (“very general description of the proposed
26 13
The Notice of Proposed Class Action Settlement and Settlement Hearing is attached as
27 Exhibit 2 to the Proposed Order.
28
19
1 settlement” satisfies standards); In re Michael Milken & Assocs. Sec. Litig., 150 F.R.D. 57, 60
2 (S.D.N.Y. 1993) (Class Notice “need only describe the terms of the settlement generally.”).
3 B. The Notice Plan and Claims Process are Appropriate.
4 The Settlement contemplates that the Notice will be mailed individually by the Claims
5 Administrator to the last known address of the FLSA Collective Action members14 and California
6 and New York putative Class members as identified through Defendant’s records within ten (10)
7 calendar days of the entering of an Order granting preliminary approval of the Settlement and
8 Notice. Such a notice plan satisfies due process and Rule 23(c)(2)(B).
9 FLSA Collective Action members who worked during the covered time period and state
10 Class members who do not opt-out need do nothing to secure their share of the Settlement. As
11 directed in the Class Notice, payment will be made to him or her based on Defendant’s records
12 and pursuant to the Settlement Formula. Skip tracing and other practicable methods will be used
13 to ensure that the Class Notice is sent to the Class Members.

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14 State Class members will have forty (40) days from the date of Notice mailing to submit
15 opt-out requests or to comment on or object to the settlement. This is sufficient time to give
16 Settlement Class members the opportunity to comment on the Settlement. Cf. Torrisi v. Tucson
17 Elec. Power Co., 8 F.3d 1370, 1375 (9th Cir. 1993) (approving Notice sent 31 days before the
18 deadline for objections and 45 days before the hearing). The Notice and opt-out process are set
19 forth in detail in Section 9 of the Joint Stipulation of Settlement and Release.
20 VIII. THE COURT SHOULD SET A FINAL SETTLEMENT APPROVAL SCHEDULE.
21 The last step in the settlement approval process is the formal hearing, at which the Court
22 may hear all evidence and argument necessary to evaluate the proposed Settlement. At that
23 hearing, proponents of the Settlement may explain and describe its terms and conditions and offer
24
14
25 The Notice will also be mailed to those Canvassers and Field Managers who filed
Consents to Join the FLSA Collective Action but who worked only after May 7, 2007, the date
26 upon which Fund began paying its employees overtime and observation day wages. The Notice
informs these post-May 7, 2007 people that they fall outside the scope of the Class, and provides
27 them with an explanation as to the reasons why they fall outside the scope of the Class.
28
20
1 argument in support of Settlement approval, and members of the Settlement Class, or their
2 counsel, may be heard in support of or in opposition to the Settlement Agreement. Class Counsel
3 recommends the following schedule which is based on the Order Granting Motion For
4 Preliminary Approval of Class Action Settlement and Class Certification that Plaintiffs
5 respectfully request be entered on February 6, 2009:
6
February Last Day for Claims Administrator to mail Settlement
7 16, 2009 Notice to FLSA Collective Action members, and the
California and New York Putative Class Members.
8
March 30, Last Day for Objections and Comments in Favor of
9 2009 Settlement and Last Day for state Class Opt Outs
10 April 10, Last Day To File Moving Papers in Support of Final

2009 Approval of Settlement; Last Day To File Plaintiffs’
11 Application for Attorneys’ Fees, Costs and Expenses
May 1, 2009 Last Day To File Replies in Support of Settlement,

12 Plaintiffs’ Attorneys Fees, etc.

May 15, Final Approval Hearing and hearing of Plaintiff’s
13 2009 Applications for Attorneys’ Fees, Costs and Expenses.

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14 A proposed order following this schedule is attached.

15 IX. CONCLUSION
16 For all of the foregoing reasons, Plaintiffs respectfully request that the Court: (1)
17 preliminarily approve the settlement; (2) certify Plaintiffs Rich Prentice, Christian Miller and
18 Tiffiney Petherbridge as Class Representatives; (3) make appropriate findings regarding the
19 previously conditionally certified FLSA Collective Action and preliminarily certify the California
20 and New York Classes for purposes of settlement; (4) appoint David A. Lowe, and John T.
21 Mullan of Rudy, Exelrod & Zieff, LLP as Class Counsel; (5) approve, and direct mailing of, the
22 proposed Class Notice (including notice of the right to opt-out of the Classes); (6) schedule a
23 fairness hearing on the question of whether the proposed settlement should be finally approved as
24 fair, reasonable, and adequate as to the members of the Settlement Classes; and (7) preliminarily
25 ///
26 ///
27 ///
28
21
1 approve service payments to the three Class Representatives, in the amount of $10,000 each, and
2 costs of administration payable to the Claims Administrator, in an amount of up to $119,370.
4 Respectfully submitted,
5
Dated: December 10, 2008 By: /s_David A. Lowe
6 David A. Lowe
Attorneys for Plaintiffs
7
David A. Lowe (State Bar #178811)
8 John T. Mullan (State Bar # 221149)
RUDY, EXELROD & ZIEFF, L.L.P.
9
351 California Street, Suite 700
10 San Francisco, CA 94104
Telephone: (415) 434-9800
11 Facsimile: (415) 434-0513
Email: dal@rezlaw.com
12 Email: jtm@rezlaw.com
13
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The Fund Class Action - Motion For Settlement

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Case3:06-cv-07776-SC Document99 Filed12/10/08 Page1 of 28

1 David A. Lowe (State Bar #178811)

8 UNITED STATES DISTRICT COURT

RICHARD PRENTICE, CHRISTIAN Case No. C-06-7776 SC

13 PETHERBRIDGE, on their own behalf and

situated, AND MOTION FOR ORDER: (1)

1 NOTICE OF MOTION AND MOTION

3 Petherbridge hereby do move the Court as follows:

4 (1) To preliminarily approve the Settlement and Agreement;

8 (3) To make appropriate findings regarding the previously conditionally certified

the right to opt-out of the Classes);

19 of administration payable to the Claims Administrator.

26 Dated: December 10, 2008 By: /s_David A. Lowe

6 II. HISTORY AND STATUS OF THE CASE.........................................................................2

7 III. SUMMARY OF SETTLEMENT TERMS ..........................................................................3

8 IV. CLASS CERTIFICATION OF PLAINTIFFS’ CLAIMS UNDER RULE 23 IS

20 V. PLAINTIFFS’ COUNSEL SHOULD BE APPOINTED AS CLASS COUNSEL. ..........12

21 VI. THE PROPOSED SETTLEMENT MERITS PRELIMINARY APPROVAL..................12

25 2. The Payments to the Named Representatives For Their Service to

1 1. The Work Performed by Class Counsel Supports the Settlement..............17

2 2. Liability Is Contested, and the Settlement Provides for Reasonable

5 Armstrong v. Martin Marietta Corp.,

10 Torrisi v. Tucson Electric Power Co.,

12 Hanlon v. Chrysler Corp.,

14 329 F.2d 909 (9th Cir. 1964) ............................................................................................... 7

17 In re Vitamins Antitrust Litig.,

24 In re Michael Milken & Associates Sec. Litigation,

10 STATUTES, RULES AND REGULATIONS

13 Section 17200 ...................................................................................................................... 8

14 California Labor Code

17 4 Newberg on Class Actions

1 MEMORANDUM OF POINTS AND AUTHORITIES

6 Claims Administrator, in the estimated amount of $119,370.

7 II. HISTORY AND STATUS OF THE CASE

24 Field Managers filed consents to join this Action. Id.

27 unilateral reclassification simultaneously limited Fund’s exposure for continuing overtime

5 properly included in this case, as discussed below.

14 Information and Documents. Id. at ¶ 18.

15 After a mediation, conducted on June 24, 2008 by an experienced mediator, Honorable

19 III. SUMMARY OF SETTLEMENT TERMS

7 amounts, plus settlement administration expenses of approximately $119,3703 and Class

9 amount of up to $115,000,4 comprise the total $2.15 million Settlement Payment.

10 The Settlement includes a proposed settlement payment distribution plan, based on a

5 out of the claims subject to the Settlement or object to the Settlement.

1 IV. CLASS CERTIFICATION OF PLAINTIFFS’ CLAIMS UNDER RULE 23 IS

24 • Whether Fund unlawfully failed to pay compensation to Class members for

22 compensation for overtime hours worked.

2 elements are satisfied here.

5 wage and hour and other employment class actions.6

14 questions are raised. Hanlon, 150 F.3d at 1020.

22 between the named representatives and the Class members.

1 B. The Proposed Settlement Classes Meet the Requirements of Rule 23(b)(3).

4 Class member’s claims and damages.

23 efficient and manageable.

24 C. The Previously-Certified FLSA Collective Action Should be Limited to those

3 Preliminarily Approving the Class Action Settlement).

4 V. PLAINTIFFS’ COUNSEL SHOULD BE APPOINTED AS CLASS COUNSEL.

15 complex federal and state overtime class actions. Id. at ¶¶ 2-15.

16 Finally, Plaintiffs’ counsel have committed significant resources to representing the

19 Accordingly, appointment of Plaintiffs’ counsel as Class Counsel is appropriate.

20 VI. THE PROPOSED SETTLEMENT MERITS PRELIMINARY APPROVAL

2 A. The Terms of the Proposed Settlement Are Fair.