FELDMAN BROWNE OLIVARES - Simpluris

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

Lee R. Feldman, Esq. (SBN 171628) [email protected] Alicia Olivares (SBN 181412) [email protected] FELDMAN BROWNE OLIVARES A Professional Corporation 12400 Wilshire Blvd., Suite 1100 Los Angeles, California 90025 Telephone: (310) 207-8500 Fax: (310) 207-8515 David M. deRubertis, Esq. (SBN 208709) [email protected] The deRubertis Law Firm, APC 4219 Coldwater Canyon Avenue Studio City, California 91604 Telephone: (818) 761-2322 Facsimile: (818) 761-2323 Attorneys for Plaintiffs DANESSA VALENTINE and JALISA MOORE

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES – CENTRAL CIVIL WEST

DANESSA VALENTINE, an individual; JALISA MOORE, an individual; and all others similarly situated

Plaintiffs,

vs. COUNTY OF LOS ANGELES, a public entity; and DOES 1 through 100, inclusive,

Defendants.

CASE NO. BC602184 [Case Assigned for All Purposes to Hon. Carolyn B. Kuhl, Department 12] MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT DATE: February 13, 2020 TIME: 10:00 a.m. DEPT: 12 Action Filed: November 24, 2015 Trial Date: NONE (Filed concurrently with Notice of Motion and Motion; Supporting Declarations of Alicia Olivares; Lee R. Feldman and David deRubertis; Declarations of Jarrod Salinas, Danessa Valentine; and Jalisa Moore; [Proposed] Order; Proof of Service)

E-Served: Jan 21 2020 9:18AM PST Via Case Anywhere

mailto:[email protected]

mailto:[email protected]

blocked::blocked::mailto:[email protected]

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR

FINAL APPROVAL OF CLASS ACTION SETTLEMENT

TABLE OF CONTENTS

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

II. SUMMARY OF LITIGATION ........................................................................ Page 2

A. Overview of the Litigation ............................................................................... Page 2

B. The Parties Settled At Mediation After Exhaustive Discovery

Was Conducted ................................................................................................ Page 3

C. Preliminary Approval ....................................................................................... Page 5

III. EVALUATION OF THE SETTLEMENT ....................................................... Page 6

A. Nature of Claims and Relief Sought ................................................................ Page 6

B. Composition of Settlement Class ..................................................................... Page 8

C. Benefits to the Unlawful Inquiry Class ............................................................ Page 8

D. Release by the Settlement Class ....................................................................... Page 9

E. The Notice and Settlement Administration Processes Were Completed

Pursuant to The Court’s Order ....................................................................... Page 10

F. Response to the Proposed Settlement – No Objections ................................. Page 11

G. Notice of Final Judgment ............................................................................... Page 12

IV. ARGUMENT ..................................................................................................... Page 12

A. Legal Standard for Granting Final Approval of the Class Action

Settlement ....................................................................................................... Page 12

B. The Settlement Is Fair, Adequate, and Reasonable ........................................ Page 13

1. The Settlement Is The Product of Arm’s Length and Informed

Negotiations ............................................................................................. Page 13

2. Sufficient Investigation and Discovery Have Been Conducted To Allow

Counsel and the Court to Evaluate the Fairness of the Settlement .......... Page 14

3. The Settlement Is Reasonable Given the Value of the Claims Asserted and the

Risks of Further Litigation ....................................................................... Page 15

4. The Experience and Views of Counsel Support Final Approval .............. Page 16

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5. The Overwhelmingly Positive Reaction of Class Members Favors Final

Approval ................................................................................................... Page 17

C. The Class Received Adequate Notice ............................................................ Page 17

V. ATTORNEY’S FEES AND COSTS ................................................................ Page 18

VI. INCENTIVE PAYMENTS AND ADMINISTRATION COSTS .................. Page 20

VII. FINAL JUDGMENT COVERS THE CLASS CLAIMS ONLY

(INDIVIDUAL CLAIMS ARE NOT RELEASED OR DISMISSED) ......... Page 21

VIII. CONCLUSION .................................................................................................. Page 22

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TABLE OF AUTHORITIES

California Cases Pages

7-Eleven Owners for Fair Franchising v. Southland Corp.,

(2000) 85 Cal. App. 4th 1135 ......................................................................................... 12, 14, 17

Beasley v. Wells Fargo, (1991) 235 Cal.App.3d 1407 ....................................................................................................... 19

Bell v. Farmers Ins. Exchange, (2004) 115 Cal. App. 4th 715 ...................................................................................................... 20

Cellphone Termination Fee Cases, (2010) 186 Cal. App. 4th 1380 .................................................................................................... 20

Cellphone Termination Fee Cases, (2009) 180 Cal.App.4th 1110 ...................................................................................................... 12

Chavez v. Netflix, Inc., (2008) 162 Cal. App. 4th 43 ........................................................................................................ 18

Clark v. American Residential Services, LLC., (2009) 175 Cal. App. 4th ............................................................................................................. 15

Dunk v. Ford Motor Co. 48, (1996) Cal.App.4th 1800 ........................................................................................... 12, 13, 14, 17

Horsford v. Board Of Trustees Of California State University, (2005) 132 Cal.App.4th 359 ........................................................................................................ 19

In re Microsoft I-V Cases, (2006) 135 Cal.App.4th 706, fn. 14 ............................................................................................ 12

Ketchum v. Moses, (2001) 24 Cal.4th 1122 ................................................................................................................ 19

Kullar v. Foot Locker Retail, Inc., (2008) 168 Cal.App.4th 116 ............................................................................................ 13, 15, 17

Serrano v. Priest, (1977) 20 Cal. 3d 25 (1977) .................................................................................................. 18, 19

State v. Levi Strauss & Co., (1986) 41 Cal. 3d 460 .................................................................................................................. 13

Wershba v. Apple Computer, Inc.,

(2001) 91 Cal.App.4th 224 ............................................................................................. 12, 13, 15, 18

/ / /

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Federal Cases Pages

D’Amato v. Deutsche Bank, (2d Cir. 2001) 236 F.3d 78 .......................................................................................................... 14

Hanlon v. Chrysler Corporation, (9th Cir. 1988) 150 F.3d 1011 ..................................................................................................... 14

Nat 'l Rural Tele. Coop. v. DIRECTV, Inc., (C.D. Cal. 2004) 221 F.R.D. 523 ................................................................................................ 17

Pacific Enters. Sec. Litig., (9th Cir. 1995) 47 F.3d 373 ......................................................................................................... 17

Roberts v. Texaco, (S.D.N.Y. 1997) 979 F. Supp. 185 .............................................................................................. 20

California Statutes Pages

California Rule of Court 3.77(b) ....................................................................................................... 12

Civil Code § 56.10 ............................................................................................................................ 16

Civil Code § 56.30 ............................................................................................................................ 16

Code of Civil Procedure § 384 .......................................................................................................... 11

Government Code § 3500 ................................................................................................................... 9

Government Code § 12940(a) ................................................................................................... 6, 7, 22

Government Code § 12940(e) ............................................................................................................. 4

Government Code § 12945 ............................................................................................................... 22

State Rules Pages California Rules of Court, Rule 3.766 ............................................................................................... 18

California Rules of Court, Rule 3.769 ............................................................................................... 12

Other Authorities Pages In re Janney Montgomery Scott LLC Financial Consultant Litig., Case No. 06-3202,

2009 U.S. Dist. LEXIS 60790 (E.D. Pa. July 16, 2009) ............................................................. 20

JF (HRL), 2008 U.S. Dist. LEXIS 108195 (N.D. Cal. Nov. 5, 2008) .......................................................... 14

Newberg on Class Actions, §11.51 .................................................................................................... 13

Stevens v. Safeway, Inc., Case No. 05-01988,

U.S. Dist. LEXIS 171 19 (C.D. Cal. Feb. 25, 2008) ....................................................................... 20

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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

In this action, Plaintiffs allege that the County of Los Angeles violated the rights of

thousands of applicants and current employees by requiring them, as a condition of employment, to

submit to medical examinations and answer invasive medical and psychological questions on

comprehensive medical questionnaires that sought medical information that was not sufficiently

narrowly tailored to assess the employee’s ability to carry out the essential functions of each class

member’s job safely or effectively. On August 22, 2019, the Court granted preliminary approval of

a $6,390,000 class action settlement reached on behalf of 21,300 current and former employees and

post-offer job applicants of the County of Los Angeles who, during the class period, were required

to respond to the County’s pre-employment medical history questionnaires challenged in the

lawsuit (the “Unlawful Inquiry Class”). On October 10, 2019, the Court approved an Amendment

to the Settlement Agreement, which increased the settlement amount to $7,137,900, negotiated by

Class Counsel to cover the increased settlement class of 23,793 individuals. During the notice

period, 202 duplicate names were discovered, resulting in a final class size of 23,591.

In accord with the Court’s Order granting preliminary approval, notice to the Class

commenced on November 4, 2019. Class Members were given 45 days to submit objections or opt

out of the settlement. Nothing has occurred since preliminary approval to undermine the validity

of the Court’s previous finding that the settlement appears to be fair, adequate, and reasonable.

Quite the contrary, to date, no class member has objected to, or otherwise challenged the

settlement. Out of 23,591 class members, only 12 class members submitted a valid opt out form -

0.05% of the entire class.

This settlement is remarkable in that, while compensating each of the participating Class

Members approximately $196.85 for the privacy/informational intrusion in having to respond to

the offending questionnaire, this settlement also preserves the claims of those who actually

suffered an adverse employment action (“Adverse Employment Action” and “Pregnancy

Adverse Action” subclasses, including the two plaintiffs) so that they may still pursue their

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individual claims, if any. In addition to the monetary benefits, the Settlement includes meaningful

and substantial injunctive relief, which requires the County to take prompt and reasonable efforts

to repeal Los Angeles County Civil Service Rule 9 (“Rule 9”) and replace it with language that is

consistent with its obligations under the FEHA. The County expressly agreed that the claims

asserted in Plaintiffs’ operative Complaint, and this Court’s tentative ruling to partially certify an

injunctive relief class in this case, were the primary catalyst motivating the County to agree to the

injunctive relief.

The Settlement is the product of extensive arms-length negotiations between the parties and

their experienced and informed counsel, and is fair, reasonable, and adequate given the claims, the

alleged harm, and the parties' respective litigation risks. By this motion, the parties respectfully

request that the Court conduct a final review of the Settlement, and approve the Settlement as fair,

reasonable and adequate. In addition, Class Counsel respectfully request that the Court award a

Service Award of $5,000 to the each of the two named Plaintiffs, whose willingness to represent

the Class and active participation in the Action helped make the Settlement possible.

II. SUMMARY OF LITIGATION

A. Overview of the Litigation

In their operative complaint, Plaintiffs allege that the County systematically violated the

rights of its post-offer applicants through a preplacement medical examination process at the hiring

stage and violated the laws against prohibited inquiries and medical examinations. Plaintiffs further

allege that the County used non job-related information collected during post-offer medical

examinations to discriminate against applicants with medical conditions and disabilities and to

deny them employment rather than reasonably accommodate them. Plaintiffs contend that the

County took adverse employment action against applicants because of their disclosures of non-job

related, confidential medical conditions or information during the hiring process. (Declaration of

Alicia Olivares (“Olivares Dec.”) ¶¶ 9-10).

In addition to nominal damages for the unlawful privacy intrusion, Plaintiffs sought

injunctive and declaratory relief, including a declaratory judgment that parts of Rule 9 violates the

FEHA, and an injunction against the County enjoining it from engaging in each of the alleged

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unlawful practices, including an injunction prohibiting the County from requiring applicants for

County employment from having to answer medical questions or provide information about

medical conditions unless the County has specifically determined that the inquiry is job related and

consistent with business necessity as defined by the FEHA. (Olivares Dec. ¶ 10).

The County denies Plaintiffs’ claims and allegations. The County argued that it has not

followed the text of Rule 9.01 and 9.03 in practice since at least 2006. The County contends that

the County routinely complies with its policies by hiring applicants who have filled out a medical

history questionnaire, even if they have disclosed a medical condition. (Olivares Dec. ¶ 11).

Further, the County argued that none of the claims asserted by Plaintiffs are subject to class

certification because Plaintiffs cannot establish the requisite commonality and ascertainability.

For example, the County argued that in order to demonstrate that the questions on the medical

history questionnaires at issue in this lawsuit are unlawful, i.e., not "job related" or "consistent with

business necessity," the Court would necessarily have to examine each question on the applicable

questionnaire against the job functions of the particular position. Given that there are

approximately 1,200 different job classifications during the relevant time period that are subject to

a post-conditional offer medical examination, and given that there are between 66 and 139 different

medial questions on the various medical history questionnaires used, the Court would have to

conduct 148,859 separate analyses to determine whether a particular question is "job related" and

"consistent with business necessity" or not. Moreover, because most of the causes of action

Plaintiffs' are seeking to pursue on a class basis require a legally cognizable "adverse employment

action," an individualized inquiry and analysis will be required to see if an essential element of the

claim can be established. For all these reasons, the County argued that class certification was

improper. Id.

B. The Parties Settled At Mediation After Exhaustive Discovery Was Conducted

The Parties conducted extensive discovery and a thorough examination and investigation of

the facts and law relating to the claims and defenses asserted by the Parties in this Action. Plaintiffs

took five key depositions of County witnesses and the Persons Most Qualified to testify regarding

the implementation and application of Rule 9, the job classifications affected by Rule 9, the factors

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considered by the County in determining what medical and psychological standards to set for all

job classifications and what inquiries to require, the manner in which any and all pre-placement

medical questionnaires were utilized, the number of post-offer applicants involved, the number of

post-offer applicants who suffered any adverse employment action, and the County’s policies

applicable to all the issues raised in the Operative Complaint. Plaintiffs also reviewed and analyzed

over 25,000 pages of documents, including the County’s Medical Standards for Employment,

policy and enforcement procedures relating to medical examination results for preplacement

examinations, medical history questionnaires, Pre-Placement Protocol Sheets, Pre-

Placement Clinical Practice Guidelines, and guidelines relating to the purpose of performing

preplacement evaluations on applicants for various job classifications, proposed revisions to Rule

9, and job classification charts. (Olivares Decl. ¶¶ 12-14)

In addition, the County took the depositions of both named Plaintiffs. The parties have also

exchanged extensive and exhaustive written discovery, including multiple sets of interrogatories,

requests for production of documents, and requests for admission. In preparation for the Motion for

Class Certification, the Plaintiffs retained the services of a highly qualified forensic economist and

statistician, David C. Sharp, Ph.D., to ensure satisfaction with the Duran concerns and compliance

with sound statistical science. (Olivares Decl. ¶¶14-15).

On July 31, 2018, Plaintiffs’ Motion for Class Certification was heard. The Court issued a

tentative ruling and requested supplemental briefing before issuing a final ruling on Plaintiffs’

Motion. The Court’s tentative ruling indicated the Court’s view that “common issues of fact

underlie the issue of whether Defendant County of Los Angeles has a general policy that violates

FEHA, Government Code section 12940(e).” The Court’s tentative ruling also expressed concern

as to whether the “Adverse Employment Action” Class and the “Pregnancy Adverse Action” Sub-

Class (which apply to the third, sixth, seventh and tenth causes of action) could be certified on a

class basis. (Olivares Decl. ¶¶16-20).

Subsequent to the Court’s tentative ruling on Plaintiff’s Motion for Class Certification, on

or about August 28, 2018, the County entered into a Settlement Agreement with the California

Department of Fair Employment and Housing (“DFEH”) (“DFEH Settlement”) to resolve two

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lawsuits brought against the County by the DFEH: DFEH v. County of Los Angeles, Los Angeles

County Superior Court Case No. BC658050 (“DFEH Godoy action”), and DFEH v. County of Los

Angeles, Los Angeles County Superior Court Case No. BC663789 (“DFEH Ficarella action”).

Pursuant to the DFEH Settlement, the County agreed to injunctive relief that was the same or

substantially similar in nature to the injunctive relief sought by Plaintiffs in their Complaint,

including but not limited to, the County’s agreement with DFEH to take prompt and reasonable

efforts to repeal Los Angeles County Civil Service Rule 9 and replace it with language that is

consistent with the County’s obligations under the FEHA. Both the DFEH Godoy action and the

DFEH Ficarella action were filed after Plaintiffs initiated this Action. The County expressly

agreed in this Settlement that the claims asserted in Plaintiffs’ operative Complaint, and this

Court’s tentative ruling to partially certify an injunctive relief class in this case, were the

primary catalyst motivating the County to agree to similar injunctive relief in the settlement

with the DFEH. (Settlement Agreement, Section II, D(6)) (Olivares Dec. ¶21)

On January 10, 2019, the Parties participated in private mediation before a reputable and

respected JAMS mediator experienced in class actions. The Parties engaged in good faith, arm’s-

length negotiations during the mediation. At and after mediation, the Parties reached a

comprehensive Memorandum of Understanding (“MOU”) regarding the settlement of what the

Parties agree are the only likely viable class claims relating to the Unlawful Inquiry Class

Members. (Olivares Dec. ¶22) After many months of further negotiations, the parties ultimately

memorialized the terms of the settlement in “Settlement Agreement re Class Claims,” which is

attached as Exhibit 1. The MOU is attached to the Settlement Agreement as Exhibit A.

C. Preliminary Approval

On August 22, 2019, the Court granted preliminary approval of the Settlement. (Olivares

Decl. ¶ 23, Exhibit 2). During the process of compiling the Database of all Class Members,

however, the County discovered there were a total of 2,493 additional class members. Given the

significant increase in additional class members, Class Counsel negotiated for the payment of an

additional $747,900 to be added to the Settlement Fund, increasing the settlement fund from

$6,390,000 to $7,137,900. (Olivares Dec. ¶24)

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This guaranteed that the existing settlement pool was not diluted and that the additional

costs and attorney’s fees were covered. Accordingly, the parties subsequently negotiated and

drafted an Amendment to the Settlement Agreement, which the Court approved on October 10,

2019. (Olivares Decl. ¶24, Exhibit 3). The County of Los Angeles next requested a modification

of the already approved Notice to the Class to modify the class period from April 1, 2014 to

October 14, 2018 (if applying to any County Department with the exception of the Department of

Health Services) or to September 20, 2019 (if applying to the Department of Health Services).

(Olivares Decl. ¶25). The change to the existing class period (“April 1, 2014 to the present”) was

needed because the County represented to the Court that it had already stopped using the medical

questionnaires that were the subject of the litigation as of October 14, 2018 for all departments

with the exception of the Department of Health Services, and as of September 20, 2019 for the

Department of Health Services. (Olivares Decl. ¶25). On October 29, 2019, the court approved the

revised language, but ordered that the Final Approval Order must specify that the claims released

are only those within the revised date limitation. (Olivares Decl. ¶25, Exhibit 4).

III. EVALUATION OF THE SETTLEMENT

A. Nature of Claims and Relief Sought

Plaintiffs allege the following claims in the Corrected Second Amended Complaint

(“CSAC”): (1) Unlawful Medical Inquiry in Violation of FEHA (asserted by the entire “California

Class,”); (2) Violation of Confidentiality of Medical Information Act (asserted by the entire

“California Class,”); (3) Discrimination in Violation of Gov. Code, section 12940(a) (asserted by

the “Adverse Employment Action Class” and the “Pregnancy Adverse Action Sub-Class” only; (4)

Failure to Accommodate in Violation of FEHA (asserted by Valentine and Moore individually only

and not on a class basis); (5) Failure to Engage in the Interactive Process in Violation of FEHA

(asserted by Valentine and Moore individually only and not on a class basis); (6) California Family

Rights Act (“CFRA”) Interference (asserted by the “Adverse Employment Action Class” only, as

defined in the Complaint); (7) Pregnancy Disability Leave (“PDL”) Interference (asserted by the

“Pregnancy Adverse Action” Sub-Class, as defined in the Complaint); (8) Failure to Accommodate

in Violation of Pregnancy Disability Leave Law (“PDLL”) (asserted by Moore individually only

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and not on a class basis); (9) Failure to Engage in the Interactive Process in Violation of PDLL

(asserted by Moore individually only and not on a class basis); and (10) Sex/Pregnancy

Discrimination in Violation of Gov. Code, section 12940(a) (asserted by the “Pregnancy Adverse

Employment Action” Sub-Class only).

On behalf of themselves and the Class, Plaintiffs sought injunctive and declaratory relief,

including a declaratory judgment that parts of Los Angeles County Civil Service Rule 9 violated

the FEHA, and an injunction against the County enjoining it from engaging in each of the alleged

unlawful practices, policies and patterns set forth in the Complaint, including an injunction

prohibiting the County from requiring applicants for County employment from having to answer

medical questions or provide information about medical conditions unless the County has

specifically determined that the inquiry is job related and consistent with business necessity as

defined under the FEHA and its implementing regulations. In addition, Plaintiffs sought

compensatory damages, civil penalties and administrative fines, attorney’s fees and costs of suit.

Plaintiff sought to certify the following Class and/or Sub Classes:

“Unlawful Inquiry Class”: “All employees and post-offer job applicants

who, during the class period, were required to undergo preplacement medical

entrance examinations that utilized the County’s Occupational Health Program’s

(“OHP”) “Basic” or “General” “Pre-Placement Medical History Questionnaire”

and/or the medical history questionnaire(s) used for pre-placement medical entrance

examinations for classifications in the County’s Department of Health Services’

(“DHS”).

“Adverse Employment Action” Class: All applicants who were required to

complete the medical history questionnaires identified above and who suffered an

adverse employment action, including but not limited to, having a job offer revoked,

having their position terminated and/or suffering a delay in hire as a result of

medical or psychological information disclosed or revealed as part of the

aforementioned pre-placement medical examination process.

“Pregnancy Adverse Action” Sub-Class: Applicants who were required to

complete the medical history questionnaires identified above and who suffered an

adverse employment action due to their disclosure of a pregnancy, including but not

limited to, applicants whose job offers were revoked, whose positions were

terminated or who suffered a delay in hire as a result of the disclosure of pregnancy,

being pregnant or anticipation of becoming pregnant.

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B. Composition of Settlement Class

The Settlement resolves only the claims asserted on behalf of the “Unlawful Inquiry

Class,” as defined above. According to County records, the “Unlawful Inquiry Class” consists of

23,591 individuals, i.e., 23,591 individuals were requested to complete the aforementioned medical

history questionnaires between April 1, 2014 and October 14, 2018 (if applying to any County

Department with the exception of the Department of Health Services) and September 20, 2019 (if

applying to the Department of Health Services). (Settlement Agreement, Section II, D(2)(2.1) and

Section J(5); Olivares Dec. ¶32).

The Settlement does not settle or release the claims asserted on behalf of the “Adverse

Employment Action” Class and the “Pregnancy Adverse Action.” Members of the “Adverse

Employment Action” Class and the “Pregnancy Adverse Action” Class (including Plaintiffs

Danessa Valentine and Jalisa Moore) will retain the right to individually pursue any claim asserted

in the CSAC on their behalf. (Settlement Agreement, Section II, J(5) and Section II, E(2)); Olivares

Dec. ¶32).The class members were given notice that Class Counsel will no longer be pursuing

those claims on a class basis in light of the Court’s expressed skepticism, at the July 31, 2018

hearing on Plaintiffs’ Motion for Class Certification, about the ability to certify those claims. Class

Members were also given notice that the statute of limitations on individual claims asserted on

behalf of the “Adverse Employment Action” Class and the “Pregnancy Adverse Action” Class

have been tolled during the pendency of this lawsuit, through the date of final approval of the

settlement. (Settlement Agreement, Section II, E(2))

C. Benefits to the Unlawful Inquiry Class

Monetary Relief: The County shall pay a maximum settlement amount of Seven Million,

One Hundred, Thirty-Seven Thousand, Nine Hundred Dollars ($7,137,900.00) ("Maximum

Settlement Amount") to resolve the claims made by the “Unlawful Inquiry Class” Members. The

potential recovery for each Class Member is calculated after subtracting approved Attorney’s Fees

and costs, Settlement Administration costs, and the Service Payments to the Named Plaintiffs.

After these costs are deducted, the Settlement Pool is estimated to be approximately Four Million,

Six Hundred, Forty-One Thousand, Six Hundred Forty-Three Dollars ($4,641,643).

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County records, the “Unlawful Inquiry Class” consists of 23,591 individuals, i.e., 23,591

individuals were requested to complete the aforementioned medical history questionnaires during

the Class Period. Each Participating Class Member was estimated to receive a payment of

approximately $195. Class Members were not required to submit a claim form. (Settlement

Agreement, Section II, D(2); Olivares Dec. ¶34)

Injunctive Relief: The County agreed to take prompt and reasonable efforts to repeal Los

Angeles County Civil Service Rule 9 and replace it with language that is consistent with its

obligations under the FEHA, provided that such language is in accord with the DFEH Settlement.

The County agrees that the revisions or re-write will eliminate the concepts that employees are

“expected to remain in a state of good health for a reasonable period of service, consistent with the

economics of retirement, sick leave, and other employee benefit programs.” Any language change

regarding Rule 9 is subject to collective bargaining with County employee associations pursuant to

the Meyers-Milias-Brown Act, Government Code section 3500, et seq., the employee relations

ordinance of the county of Los Angeles, and any collective bargaining process and employee

association demands that must be complied with as well. (Settlement Agreement, Section II, D(3)-

(5); Olivares Dec. ¶34)

D. Release by the Settlement Class

Upon this Settlement becoming final, the County and the Released Persons will be released

from any claim that Plaintiffs or Settlement Class Members ever had against the Released Persons

arising from or in any way whatsoever relating to actions or omissions which have been asserted or

which could reasonably have been asserted only on behalf of the Unlawful Inquiry Class.

Notwithstanding the foregoing, the release does not settle or release the claims asserted on behalf

of the “Adverse Employment Action” Class and the “Pregnancy Adverse Action.” Specifically, the

release language states:

In addition to the effect of any final judgment entered in accordance with

this Settlement Agreement, upon this Settlement becoming final, the County and the

Released Persons will be released and forever discharged from any and all actions,

claims, demands, rights, suits, and causes of action of any kind or nature whatsoever

against the County and the Released Persons, including damages, costs, expenses,

penalties, and attorneys' fees, whether at law or equity, known or unknown, foreseen

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or unforeseen, developed or undeveloped, direct, indirect or consequential,

liquidated or unliquidated, arising under common law, regulatory law, statutory law,

or otherwise, based on federal, state, or local law, statute, ordinance, regulation,

code, contract, common law, or any other source, or any claim that Plaintiffs or

Settlement Class Members ever had, now have, may have, or hereafter can, shall or

may ever have against the Released Persons in any court, tribunal, arbitration panel,

commission, agency or before any governmental and/or administrative body, or any

other adjudicatory body, on the basis of, connected with, arising from or in any way

whatsoever relating to actions or omissions which have been asserted or which

could reasonably have been asserted by the Settlement Class Members on behalf of

the ''Unlawful Inquiry Class" against the County in this Action (and in Plaintiffs'

Motion for Certification in the event there are different or additional claims asserted

therein). This release is limited to claims that arose or could have been asserted as of

the date of final approval of the Settlement Agreement. (Settlement Agreement,

Section II, J(1)).

“Released Persons” means and includes the County and its past and present employees and

elected officials, departments, agents, insurers, spokespersons, legal representatives, attorneys,

public relations firms, and assigns of all such persons or entities. (Settlement Agreement §IIA(10)).

The Settlement Agreement makes clear that:

“This Release does not apply to claims of the Adverse Employment Action Class

and/or the Pregnancy Adverse Employment Action Class for the conduct alleged on

their behalf, which are not part of this settlement. Participation in the settlement of

the Unlawful Inquiry Class does not settle, release, waive and/or compromise the

claims of the Adverse Employment Action Class Members and/or the Pregnancy

Adverse Action Class Members.” (Settlement Agreement, Section II, J(5)).

E. The Notice and Settlement Administration Processes Were Completed

Pursuant to The Court’s Order

The Parties retained Simpluris Class Action Settlement Administration (“Simpluris”)1 to

provide the settlement administration services agreed to in the Settlement Agreement. Simpluris’

duties included: printing and mailing the Class Notice; receiving undeliverable Class Notices;

posting an informational website; receiving and validating requests for exclusion; answering

questions from Class Members; computing, processing, reviewing, and paying the Settlement

Payments; preparing any tax returns and other filings required by any governmental taxing

1 At preliminary approval the Court appointed ILYM Group as the Settlement Administrator, but after ILYM raised its original quote dramatically, the Parties agreed to and the Court approved Simpluris.

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authority or agency; and preparing any other notices, reports of filings to be prepared in the course

of administering the Settlement Payments. (Olivares Dec. ¶26; Jarrod Salinas (“Salinas”) Dec. ¶3)

The County of Los Angeles compiled and provided Simpluris with the Class List. The

Class List contained a total of 23,793 names, 23,591 of which were unique Class Members and 202

were duplicate names. (Salinas Dec. ¶5). Pursuant to the schedule approved by the Court, Simpluris

mailed via First Class Mail the Notice Packets to all 23,591 Class Members, after updating the

mailing addresses through the National Change of Address Database. (Salinas Dec. ¶¶6-7). Of the

1,108 Notice Packets that were returned as undeliverable, Simpluris conducted a skip trace by

using a reputable search tool owned by Lexis-Nexis, using the Class Members’ name, previous

address and Social Security number to locate a current address. Through the advanced address

searches, Simpluris was able to locate 900 updated addresses and Simpluris promptly mailed

Notice Packets to those updated addresses. Ultimately, 188 Class Member’s Notices were

undeliverable because Simpluris was unable to locate a current address. (Salinas Dec. ¶9).

To reach the maximum number of class members and ensure that any potential class

member who may have moved had access to the case information, Simpluris established and is

maintaining a website dedicated to this case (www.valentinevcountyofla.com) . The Settlement

Agreement, Amendment to Settlement Agreement, Order Approving Amendment to Settlement

Agreement, Order Granting Preliminary Approval, and the Notice of Class Action Settlement are

all available for download from the website. The website was operational on November 4, 2019,

and is accessible 24 hours a day, 7 days a week. (Salinas Dec. ¶10).

F. Response to the Proposed Settlement – No Objections

Class Members were given 45 days to opt out or object to the Settlement. Plaintiffs are

pleased to report that of the 23,591 Class Members, only 12 (0.05%) opted out and no Class

Member objected to the Settlement. (Salinas Dec. ¶¶11-12). All Class Members who did not opt

out will receive a payment in the amount of $196.85. (Salinas Dec. ¶¶113) Class Members will

have one year to cash their checks. There is no reversion of funds to Defendant. Any monies

from checks not cashed within 365 days of initial issuance shall be distributed, pursuant to Code of

Civil Procedure Section 384. The Cy Pres funds will be provided to a non-profit organization,

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chosen by the County, that provides services that assist individuals who face barriers to

employment. The unclaimed residual funds shall be payable to New Horizons, 15725 Parthenia St.,

North Hills, California, 91343; http://newhorizons-sfv.org/. (Olivares Dec. ¶¶30-31).

G. Notice of Final Judgment

Notice of Final Judgment shall be given to the Class Members by posting notice on the

Settlement Administrator's website, or, pursuant to California Rule of Court 3.77(b), in any other

manner specified by the Court. (Settlement Agreement, Section II, M(9))

IV. ARGUMENT

A. Legal Standard for Granting Final Approval of the Class Action Settlement

Settlement of a class action requires court approval. Cal. Rules of Court, Rule 3.769. To

warrant final approval, a class settlement must be fair, adequate, and reasonable. Dunk v. Ford

Motor Co. 48, (1996) Cal.App.4th 1800, 1801 (citation omitted). The purpose of this requirement

is to “prevent fraud, collusion or unfairness to the class.” Id. The court has broad discretion in

determining whether to approve a proposed settlement. Wershba v. Apple Computer, Inc., (2001)

91 Cal.App.4th 224, 245, affirming approval of nationwide class settlement); 7-Eleven Owners for

Fair Franchising v. Southland Corp., (2001) 85 Cal.App.4th 1135, 1145-46 (affirming approval of

class settlement). The law generally favors settlement, particularly in class actions, where

substantial resources can be conserved by avoiding the time, cost, and rigors of litigation. In re

Microsoft I-V Cases, (2006) 135 Cal.App.4th 706, 723, fn. 14 (“Public policy generally favors the

compromise of complex class action litigation”); Cellphone Termination Fee Cases, (2009) 180

Cal.App.4th 1110, 1125 (denial of class settlement was “particularly problematic” in light of the

public policy favoring settlement of complex class actions.)

In evaluating the fairness of a class settlement, courts consider several relevant factors,

including “the strength of the plaintiffs’ case, the risk, expense, complexity and likely duration of

further litigation, the risk of maintaining class action status through trial, the amount offered in

settlement, and the extent of discovery completed and the stage of the proceedings, the experience

and views of counsel, the presence of a governmental participant, and the reaction of the class

members to the proposed settlement.” Dunk, 48 Cal.App.4th at 1801. These factors are not

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exhaustive, and the court “is free to engage in a balancing and weighing of factors depending on

the circumstances of each case.” Wershba, 91 Cal.App.4th at 245.

A presumption of fairness exists where: (1) the settlement is reached through arm’s-length

negotiations; (2) investigation and discovery are sufficient to allow counsel and the court to act

intelligently; (3) counsel is experienced in similar litigation; and 4) the percentage of objectors is

small. Dunk, 48 Cal.App.4th at 1802. In Kullar v. Foot Locker Retail, Inc., (2008) 168

Cal.App.4th 116, the Court of Appeals held that courts should not attempt to decide the merits of

the case or to substitute its evaluation of the most appropriate settlement for that of the attorneys.

Ultimately, the Court must “satisfy itself that the class settlement is within the ‘ballpark’ of

reasonableness,” which requires receiving “basic information about the nature and magnitude of

the claims in question and the basis for concluding that the consideration being paid for the release

of those claims represents a reasonable compromise.” Id. at 133.

The parties’ settlement satisfies all of these requirements.

B. The Settlement Is Fair, Adequate, and Reasonable

1. The Settlement Is The Product of Arm’s Length and Informed Negotiations

“[W]hat transpires in settlement negotiations is highly relevant to the assessment of a

proposed settlement’s fairness.” State v. Levi Strauss & Co., (1986) 41 Cal. 3d 460, 482. Courts

presume the absence of fraud or collusion in the negotiation of a settlement, unless evidence to the

contrary is offered; thus, there is a presumption that settlement negotiations are conducted in good

faith. Newberg on Class Actions, §11.51. This settlement is the product of meaningful and

deliberate arm’s-length bargaining between attorneys who are experienced in complex employment

cases, and who are well informed about the facts and legal issues of this case. Class Counsel are

among the most experienced in employment cases and class actions in California. As set forth at

preliminary approval, prior to entering into settlement discussions, the parties exchanged

significant formal and informal discovery sufficient to enable the parties to evaluate their

respective legal positions. To avoid protracted litigation, and after exchanging extensive discovery

that allowed full exploration of the factual and legal issues, the parties agreed to participate in

private mediation with a respected and experienced neutral at JAMS. Prior to mediation, the

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parties exchanged mediation briefs to assess and evaluate the parties’ respective analysis and

damages analysis. The mediator helped manage the Parties’ expectations and provided useful,

meaningful and neutral analysis of the issues and risks to both sides. A mediator’s participation

weighs considerably against any inference of a collusive settlement. In re Apple Computer, Inc.

Derivative Litig., No. C 06-4128 JF (HRL), 2008 U.S. Dist. LEXIS 108195 (N.D. Cal. Nov. 5,

2008). See also D’Amato v. Deutsche Bank, (2d Cir. 2001) 236 F.3d 78, 85 (a “mediator’s

involvement in pre-certification settlement negotiations helps to ensure that the proceedings were

free of collusion and undue pressure.”).

At the full day mediation, the parties spent significant time discussing the merits of the

class claims, Defendant’s defenses, and the risks inherent in further litigation, including the real

possibility that the Court would not certify the proposed classes. With the guidance of the

mediator, the parties were able to reach agreement that resulted in a Memorandum of

Understanding, which took months to negotiate and finalize after the mediation. (Olivares Dec.

¶22). Thereafter, the MOU was presented to the Los Angeles County Board of Supervisors on

May 21, 2019, and the settlement was approved. The parties negotiated the terms of the long form

Settlement Agreement for many weeks, and the final Settlement Agreement was executed by all

parties on July 24, 2019. (Olivares Dec. ¶22).

At all times, the Parties’ negotiations were adversarial and non-collusive.

2. Sufficient Investigation and Discovery Have Been Conducted To Allow Counsel and

the Court to Evaluate the Fairness of the Settlement

Sufficient investigation by counsel reinforces the presumption of fairness when counsel and

the Court evaluate the settlement. Dunk, 48 Cal.App.4th at 1802; see 7-Eleven, 85 Cal. App.4th at

1150. In this case, the parties engaged in robust discovery plus informal exchange of information

and documents in advance of mediation to ensure that the parties had access to relevant facts and

documents to enable the parties to conduct a thorough examination and evaluation of the pending

and potential claims. (Olivares Dec. ¶¶12-15). Class Counsel believes the proposed settlement is

an excellent and fair result, reached after conducting the investigation and discovery necessary to

make a full and reasoned assessment of the class claims. Hanlon v. Chrysler Corporation (9th Cir.

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1988) 150 F.3d 1011, 1027 (affirming approval of settlement and noting “[t]here is no evidence to

suggest that the settlement was negotiated in haste or in the absence of information illuminating the

value of plaintiffs’ claims.”) As presented at the preliminary approval hearing, the results achieved

by Class Counsel in this case are remarkable compared to other class action settlements in breach

of privacy cases. (Motion for Preliminary Approval, at pp. 10-11).

3. The Settlement Is Reasonable Given the Value of the Claims Asserted and the Risks

of Further Litigation

A court must “receive and consider enough information about the nature and magnitude of

the claims being settled, as well as the impediments to recovery, to make an independent

assessment of the reasonableness of the terms to which the Parties have agreed.” Kullar, supra, 168

Cal.App.4th at 133. To properly analyze this factor, the record should contain an analysis of how

the “core legal issue[s]” were considered, such that the trial court can “satisfy itself that the class

settlement is within the ballpark of reasonableness.” Clark v. American Residential Services, LLC.

(2009) 175 Cal. App. 4th at 789, 802; see also Kullar, 168 Cal. App. 4th at 133. The analysis

should provide the trial court with “basic information about the nature and magnitude of the claims

in question and basis for concluding that the consideration being paid for the release of those

claims represents a reasonable compromise.” Id. The Court in Kullar explained that, although “not

exhaustive,” a determination of whether a settlement is “fair, adequate and reasonable” should take

into account the strength of a plaintiff’s case, the risk, expense, complexity and the likely duration

of further litigation. Id. at 127-128. Even so, “[i]n the context of settlement agreements, the test is

not the maximum amount plaintiffs might have obtained at trial on the complaint, but rather

whether the settlement agreement is reasonable under the circumstances.” Wershba, 91

Cal.App.4th at 250 (citation omitted).

Plaintiffs achieved all of the injunctive relief they sought in the lawsuit plus significant

monetary relief for the Class. The County expressly agrees that the claims asserted in Plaintiffs’

operative Complaint, and this Court’s tentative ruling to partially certify an injunctive relief class

in this case, were the primary catalyst motivating the County to agree to similar injunctive relief in

a separate settlement with the DFEH. (Olivares Dec. ¶21). In addition, Plaintiffs sought nominal

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damages for the privacy intrusion, and for the violation of Civil Code section 56.10. Plaintiffs

contend that pursuant to Civil Code section 56.30, nominal damages in the amount of $1,000 per

person are recoverable without proof that the plaintiff suffered or was threatened with actual

damages. However, at the hearing on the Motion for Class Certification, the Court was not

convinced that Plaintiffs would be able to recover any nominal damages and requested

supplemental briefing. Plaintiffs understood the risk that the Court would find that Plaintiffs could

not meet the elements of the Violation of the Confidentiality of Medical Information Act (CMIA)

in light of the Act’s requirement that a violation includes “use” or “disclosure” of the information,

not just “gathering of information.” (Olivares Dec. ¶¶16-19).

In this Settlement, Plaintiffs achieved the full scope of injunctive relief sought plus a

monetary payment to each participating class member in the amount of approximately $196.85 for

having to fill out the questionnaires challenged in the lawsuit, without requiring a showing of

actual loss or damages. Given the heavily disputed legal issues concerning the availability of the

damages sought, there was a substantial risk that class members would receive no compensation at

all for having to provide their medical information to the County without an adverse employment

action. Consequently, the settlement amount reached took into account the strengths and

weaknesses of each class claim and likelihood of success at the trial level in order to reach a fair

and reasonable result.

4. The Experience and Views of Counsel Support Final Approval

The experience and views of counsel warrant a final finding by the Court that the settlement

is fair, adequate, and reasonable. Class Counsel are experienced class action litigators and

understand that the outcome of class certification, trial, and any attendant appeals were inherently

uncertain, as well as likely to consume many more months, even years. Having extensively briefed

the pivotal legal and factual issues, counsel for the parties, experienced class action litigators well

versed in employment law, arrived at a reasonable resolution through arm’s length mediation and

negotiation process. Class Counsel's history of successfully prosecuting wage and hour class

actions made particularly credible their commitment to pursue this litigation until they achieved a

fair result. (Olivares Dec. ¶2-8; Feldman Dec. ¶¶4-7; deRubertis Dec. ¶¶4-17). Accordingly, Class

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Counsel's assessment is entitled to great weight, and strongly supports preliminary approval of the

proposed settlement. See Dunk, 48 Cal.App.4th at 1801; see also Kullar, 168 Cal.App.4th at 129;

see also Nat 'l Rural Tele. Coop. v. DIRECTV, Inc. (C.D. Cal. 2004) 221 F.R.D. 523,528 ("'Great

weight' is accorded to the recommendation of counsel, who are most closely acquainted with the

facts of the underlying litigation."). Indeed, as the DIRECTV court explained, counsel "are better

positioned than courts to produce a settlement that fairly reflects each party's expected outcome in

the litigation." Id. (quoting Pacific Enters. Sec. Litig. (9th Cir. 1995) 47 F.3d 373,378).

As such, absent a finding of fraud or collusion, settlement agreements negotiated and

endorsed by experienced counsel are presumptively fair and reasonable. See Dunk, 48 Cal.App.4th

at 1802. By virtue of their investigation, Class Counsel was able to thoroughly evaluate the

respective strengths and weaknesses of their positions, as well as the extent of available recovery.

Class Counsel worked diligently to secure the best possible result for the Class through vigorous,

arm's length negotiations. Class Counsel's views and recommendations concerning the Settlement

are the product of a thorough analysis and consideration of the issues and risks of continued

litigation. Class Counsel believes the results achieved by the Settlement are eminently fair,

adequate and reasonable. Because the parties and their counsel agree that the settlement is fair and

provides valuable benefits to the settlement class, this factor favors final approval.

5. The Overwhelmingly Positive Reaction of Class Members Favors Final

Approval

Another factor that may be considered at final approval is class members’ reaction to the

settlement. Dunk, 48 Cal.App.4th at 1801. The reaction here has been overwhelmingly positive.

Importantly, no objections have been made and less than 0.05% opted out of the settlement. This

represents a vote of confidence by the settlement class and indicates the settlement is fair,

adequate, and reasonable.

C. The Class Received Adequate Notice

The manner of giving notice and the content of the notice must “fairly apprise the

prospective members of the class of the terms of the proposed settlement and of the options that are

open to them in connection with the proceedings.” 7-Eleven, 85 Cal.App.4th at 1164 (citation

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omitted.) An appropriate notice has a “reasonable chance of reaching a substantial percentage of

the class members.” Wershba, 91 Cal.App.4th at 251 (citation omitted). Here, the Court-approved

notice adequately protected the due process rights of all class members and satisfied Cal. Rules of

Court, Rule 3.766 with regard to the content of the notice, the manner of notice and the means of

giving notice.

In this case, the notice plan was carefully tailored to reach all of the class members and

fairly apprise them of the settlement and of their opportunity to object and opt out. Notice Packets

were mailed out via First Class US Mail. In addition, with the understanding that many class

members may have moved and updated contact information for them may not be feasible, a static

website was created (www.valentinevcountyofla.com ) for all potential class members to easily

access. The website contained case information, a copy of the full Notice of Class Action

Settlement, all of the case documents (including the Settlement Agreement, the Amended

Settlement Agreement, the Order Granting Preliminary Approval), as well as all important dates

(including the opt out and objection deadlines and procedures and the date of the Final Fairness

Hearing). (Salinas Dec. ¶10).

V. ATTORNEY’S FEES AND COSTS

Class Counsel filed herewith an application for an award of the reasonable attorney's fees in

the amount of $2,379,062, which constitutes 33.33% of the common fund, plus $55,000 in

litigation expenses actually incurred. The California Supreme Court has held that “when a number

of persons is entitled in common to a specific fund, and an action brought by a plaintiff or plaintiffs

for the benefit of all results in the creation or preservation of that fund, such plaintiff or plaintiffs

may be awarded attorney’s fees out of the fund.” Serrano v. Priest, (1977) 20 Cal. 3d 25, 34

(1977). California courts routinely award attorney’s fees equaling one third or more of the potential

value of the common fund. See Chavez v. Netflix, Inc., (2008) 162 Cal. App. 4th 43, 66 n. 11.

Class Counsel has filed a comprehensive motion for an award of attorneys’ fees

supported by detailed time entry records and supporting declarations. The requested fees are fair

compensation for undertaking complex, risky, expensive, and time-consuming litigation solely on a

contingency basis. Further, the requests are in line with other attorneys’ fees awards in California.

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The Supreme Court held “that trial courts have discretion to conduct a lodestar cross-check

on a percentage fee,” to evaluate the reasonableness of a requested percentage fee. Laffitte v.

Robert Half International Inc., No. S222996 (Aug. 11, 2016). Plaintiff’s Counsel has submitted

declarations and timesheets of counsel and counsel’s staff to support Plaintiff’s request for

approval of 33.33%. Plaintiff’s Counsel’s timesheets reflect that to date, the lodestar is $1,724,439.

Class Counsel request a modest multiplier of 1.38 based (1) the novelty and difficulty of the

questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of

the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee

award. “It has long been recognized, however, that the contingent and deferred nature of the fee

award in a civil rights or other case with statutory attorney fees requires that the fee be adjusted in

some manner to reflect the fact that the fair market value of legal services provided on that basis is

greater than the equivalent noncontingent hourly rate.” Horsford v. Board Of Trustees Of

California State University (2005) 132 Cal.App.4th 359, 394-95 (citing Ketchum v. Moses (2001)

24 Cal.4th 1122, 1132-1133).

Here, because Class Counsel assumed the risk of not being paid any fees or fees less

than the work actually performed, and of not recouping their costs if plaintiff did not prevail, the

court may enhance their fees with a multiplier to compensate for the contingent risk assumed by

them. (Ketchum, 24 Cal.4th at 1132; Serrano v. Priest (Serrano III) (1982) 20 Cal.3d 25, 49;

Beasley v. Wells Fargo (1991) 235 Cal.App.3d 1407, 1418-19 [awarding full lodestar figure plus a

1.5 multiplier for contingent risk].) The requested fees are fair compensation for undertaking

complex, risky, expensive, and time-consuming litigation solely on a contingency basis. Further,

the requests are in line with other attorneys’ fees awards in California for wage and hour class

actions, particularly where a significant portion of the class members will be receiving substantial

relief. (Olivares Dec. ¶49)

In addition, Plaintiff has provided the necessary documentation to support the litigation

costs actually incurred. (Olivares Decl. ¶49; deRubertis Dec. ¶29) The Court approved notice to

the Class Members regarding the settlement informed Class Members of the requested amount of

attorney’s fees and that the instant motion will be heard at the settlement Fairness Hearing, where

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Class Members may appear and present any objections. The Motion for Attorney’s Fees was

uploaded on the dedicated website for Class Members to have access and review in advance of the

Final Fairness Hearing (Olivares Dec. ¶54).

VI. INCENTIVE PAYMENTS AND ADMINISTRATION COSTS

Plaintiffs Danessa Valentina and Jalisa Moore seek a service aware of $5,000 for each of

them. The payment is intended to recognize Ms. Valentine’s and Ms. Moore’s substantial

initiative, efforts, and risks assumed on behalf of the entire Class. Named Plaintiffs are eligible for

a payment that reasonably compensates them for undertaking and fulfilling a fiduciary duty to

represent absent class members. Cellphone Termination Fee Cases (2010) 186 Cal. App. 4th 1380,

1393-194; Bell v. Farmers Ins. Exchange (2004) 115 Cal. App. 4th 715, 726 (upholding "service

payments" to named plaintiffs for their efforts in bringing the case); Stevens v. Safeway, Inc., Case

No. 05-01988, U.S. Dist. LEXIS 171 19 (C.D. Cal. Feb. 25, 2008) ($20,000 and $10,000 to two

class representatives); In re Janney Montgomery Scott LLC Financial Consultant Litig., Case No.

06-3202, 2009 U.S. Dist. LEXIS 60790 (E.D. Pa. July 16, 2009) ($20,000 each to three class

representatives). The guiding standard in determining the amount of an incentive award is to

evaluate the special circumstances, the personal risk attached to being a named plaintiff, the time

spent assisting in the litigation, the factual expertise provided, other burdens suffered by the

plaintiffs and the recovery. Roberts v. Texaco (S.D.N.Y. 1997) 979 F. Supp. 185, 201. Particularly

in employment wage claims, the named Plaintiff should be entitled to an enhancement award as an

incentive to take the risks associated with pursuing employment claims on behalf of other

employees. Where the plaintiff is a "present or past employee whose present position or

employment credentials or recommendation may be at risk by reason of having prosecuted the suit,

who therefore lends his or her name and efforts to the prosecution of litigation at some personal

peril, a substantial enhancement award is justified." Id.

From the onset, Plaintiffs, Danessa Valentina and Jalisa Moore, contributed significantly to

the litigation and the ultimate result. Ms. Moore and Ms. Valentine have submitted declarations

detailing their participation and involvement in this case. (Valentine Dec. ¶¶ 8-13; Moore Dec.

¶11-15) Plaintiffs provided significant information that assisted counsel in prosecuting the class

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claims, spent considerable time answering Counsel’s questions, responded to formal discovery,

provided key documents, appeared for their respective depositions, and personally attended the

mediation that resulted in this settlement. Ms. Valentine missed several days of work to attend her

deposition and mediation (Valentine Dec. ¶¶ 8-13), and Ms. Moore was required to take time away

from caring for her young children and find childcare for them while she attended her deposition

and the mediation in this case (Moore Dec. ¶11-15; Olivares Dec. ¶55)

Finally, as a matter of public policy, to ensure meritorious class action matters in the

employment field are prosecuted, a service award is essential to ensure future plaintiffs will be

willing to litigate, often for years, where personal damages may be limited. It is not reasonable to

expect representative plaintiffs to undertake rigorous litigation of complex cases, at great personal

risk and with little personal reward. For all these reasons, Plaintiffs’ request for the $5,000 to each

of the two named plaintiffs is justified.

In addition, the Settlement Administrator, Simpluris, has incurred a total of $52,195 in costs

associated with the administration of this settlement. This includes all costs incurred to date, as

well as estimated costs involved in completing the settlement administration. (Salinas Dec. ¶14).

Simpluris has extensive experience in administering Class Action Settlements, including extensive

experience in the realm of labor and employment class action settlements. (Salinas Dec. ¶¶2-3).

VII. FINAL JUDGMENT COVERS THE CLASS CLAIMS ONLY (INDIVIDUAL

CLAIMS ARE NOT RELEASED OR DISMISSED)

The Order and Final Judgment, filed herewith, covers only the Unlawful Inquiry claims

asserted in the First and Second Causes of Action of Plaintiffs’ Corrected Second Amended

Complaint (“CSAC”): (1) Unlawful Medical Inquiry In Violation of FEHA, and (2) Violation of

Confidentiality of Medical Information Act. The Adverse Employment Action and Pregnancy

Adverse Employment Action claims asserted in the remaining 3rd to 10th causes of action are not

released or dismissed. Specifically, the remaining causes of action are not disposed of by this

Settlement and expressly remain to be prosecuted individually (included by Plaintiffs Valentine

and Moore):

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3

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10

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• Third Cause of Action for Disability Discrimination In Violation of Gov. Code §12940(a),

asserted by the “Adverse Employment Action Class” and the “Pregnancy Adverse Action

Sub-Class”;

• Fourth Cause of Action for Failure to Accommodate In Violation of FEHA;;

• Fifth Cause of Action for Failure to Engage In the Interactive Process In Violation of

FEHA;

• Sixth Cause of Action for CFRA Interference, asserted by the “Adverse Employment

Action Class”;

• Seventh Cause of Action for PDL Interference, asserted by the “Pregnancy Adverse Action

Class”; including Plaintiff Moore;

• Eighth Cause of Action for Failure to Accommodate in Violation of PDLL (Gov. Code

§12945), asserted by Plaintiff Moore individually;

• Ninth Cause of Action for Failure to Engage In The Interactive Process In Violation of

PDLL, asserted by Plaintiff Moore individually;

• Tenth Cause of Action Sex/Pregnancy Discrimination In Violation of Gov. Code §

12940(a), asserted by the “Pregnancy Adverse Action Class”, including Plaintiff Moore.

VIII. CONCLUSION

The settlement is fair, reasonable and substantially beneficial to the class, taking into

account the strength of Plaintiffs’ case, the risk, expense, complexity and the likely duration of

further litigation. It is not a product of fraud or collusion. For the foregoing reasons, Plaintiffs

request that the Court enter the attached proposed Order granting final approval of the Settlement.

Dated: January 20, 2020 FELDMAN BROWNE OLIVARES, APC

By:

LEE R. FELDMAN

ALICIA OLIVARES

Attorneys for Plaintiffs,

DANESSA VALENTINE and JALISA

MOORE

Documents

FELDMAN BROWNE OLIVARES - Simpluris