II DocuSign Envelope ID: 24C1B9F5-A2EF-4FD1-BFBO …docs.simpluris.com/4152/Brown v. Cinemark Settlement.pdf · 2019. 4. 1. · Cinemark USA, Inc. and Century Theatres, Inc. (collectively

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1 CAPSTONE LAW APC RAUL PEREZ (SBN 174687)

2 [email protected] MELISSA GRANT (SBN 205633) [email protected] 3

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4 ROBERT DREXLER (SBN 119119) [email protected] JONATHAN LEE (SBN 267146) Jonathan [email protected]

6 1875 Century Park East, Suite 1000

7 Los Angeles, California 90067 Telephone: (310) 556-4811

8 Facsimile: (310) 943-0396

9 Attorneys for Plaintiff Silken Brown and the Certified Class

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11 HUNTON ANDREWS KURTH LLP EMILY BURKHARDT VICENTE (SBN 263990)

12 [email protected]

13 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627

14 Telephone: 213 • 532 • 2000 Facsimile: 213 • 532 • 2020

Attorneys for Defendants CINEMARK USA, INC. and CENTURY THEATRES, INC.

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SILKEN BROWN, et al.,

Plaintiffs,

v.

25 CINEMARK USA, INC., et al.,

26 Defendants.

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CASE NO.: 3:13-CV-05669-WHO

Hon. William H. Orrick

JOINT STIPULATION OF CLASS ACTION SETTLEMENT AND RELEASE OF CLAIMS


Exhibit 1 to Declaration of Raul Perez Page 9

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This Stipulation of Class Action Settlement and Release of Claims is entered into by and

between Plaintiff Silken Brown ("Plaintiff''), individually, on behalf of the Settlement Class, and as

the PAGA representative plaintiff for the Private Attorneys General Act claim, and Defendants

Cinemark USA, Inc. and Century Theatres, Inc. (collectively "Defendants" or "Cinemark").

I. DEFINITIONS

A. The "Action."

The class action lawsuit entitled Brown v. Cinemark USA, Inc., et al., Case No. 3:13-cv-

05669-WHO, filed on December 3, 2011, and pending in the United States District Court for the

Northern District of California.

B. "Agreement" or "Settlement Agreement" or "Settlement."

This Stipulation of Class Action Settlement and Release of Claims.

C. "Attorneys' Fees and Costs."

The unopposed request for attorneys' fees for Class Counsel's litigation and resolution of this

Action and their expenses and costs incurred in connection with the Action, including costs awarded

to Plaintiff on appeal by the Ninth Circuit Court of Appeals, to be paid from the Class Settlement

Amount, as approved by the Court.

D. "Class Counsel."

Capstone Law APC.

E. "Class Member(s)" or "Class."

All current and former non-exempt employees of Cinemark's California theaters who worked

as an usher or concession worker from December 3, 2011 until July 31, 2014, or in any other non

exempt position from July 25, 2012 until July 31, 2014, and who were paid overtime compensation

during at least one pay period. The number of Class Members will not exceed 6,000 (in order of

date of hire).

F. "Class Period."

For Class Members who held the position of usher or concession worker the class period is

from December 3, 201 I until July 3 I, 2014, and for Class Members who held any other non-exempt

position the class period is from July 25, 2012 until July 31, 2014.

JOINT STIPULATION OF CLASS ACTION SETTLEl'vlENT AND RELEASE OF CLAIMS


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G. "Class Representative."

The named Plaintiff Silken Brown in the Action in her capacity as representative of the Class

Members.

H. "Class Settlement Amount."

The "Class Settlement Amount" to be paid by Cinemark USA, Inc. (on its behalf and on

behalf of Century Theatres, Inc.) is the total sum of Two Million Nine Hundred Thousand Dollars

and No Cents ($2,900,000.00). This payment shall be "all inclusive," including: all payments to

Class Members who do not opt out of the settlement and, as approved by the Court, Plaintiff's

Enhancement Payment, Class Counsel's Attorneys' Fees and Costs, the Settlement Administrator's

fees, costs, and expenses, and the payment amount for the claim arising under PAGA, and all other

settlement-related payments and costs. In no event shall Defendants be obligated to pay more than

the Class Settlement Amount. No portion of the Class Settlement Amount will revert to Defendants.

I. "Class Wage Statements."

The total number of wage statements reflecting overtime hours issued by Cinemark within

the Class Period to all Class Members who did not submit a timely Request for Exclusion.

J. "Court."

The United States District Court for the No1thern District of California.

K. "Defendants" or "Cinemark."

Cinemark USA, Inc. and Century Theatres, Inc.

L. "Effective Date."

The date upon which the time for appeal of the Court's order granting final approval of the

Settlement expires, unless an appeal is timely filed, and then "Effective Date" means the date of final

resolution of any appeal(s) from the order granting final approval of the Settlement that results in the

upholding of the Settlement.

M. "Enhancement Payment."

The unopposed amount, if any, that the Court authorizes to be paid to Class Representative

Silken Brown for assisting with the prosecution of the Action, the risks she took in doing so, and in

exchange for executing the General Release and other consideration provided herein. Any

2 JOINT STIPULATION OF CLASS ACTION SETTLEMENT AND RELEASE OF CLAIMS


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Enhancement Payment approved by the Court shall be paid out of the Class Settlement Amount. No

enhancement payment shall be sought for or awarded to Mario De La Rosa or Joseph Amey, both of

whom have been dismissed from this Action with prejudice.

N. "Individual Settlement Payment."

The amount payable from the Net Settlement Amount to each Class Member who has not

submitted a timely and valid Request for Exclusion.

O. "Individual Wage Statement."

The number of wage statements reflecting overtime issued by Cinemark to an individual

Class Member within the Class Period.

P. "Net Settlement Amount"

The Class Settlement Amount, less Class Counsel's Attorneys' Fees and Costs, the

Enhancement Payment, the California Labor & Workforce Development Agency's ("LWDA")

portion of the PAGA Settlement Amount, and the amount paid to the Settlement Administrator.

Q. "Notice."

The Notice of Class Action Settlement in a form substantially similar to the form attached

hereto as Exhibit 1. The Notice shall contain the exact date, time, and location for a "Final Approval

Hearing." The Final Approval Hearing shall be held on a date approved by the Court no earlier than

ten (10) days after the last day for Defendants to exercise their right to void this Settlement

Agreement, as provided in Paragraph III.O hereof.

R. "PAGA."

21 The California Labor Code Private Attorneys General Act of 2004, Labor Code § 2698, et

22 seq.

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S. The "PAGA Settlement Amount."

The amount allocated from the Class Settlement Amount and paid for the release of the

PAGA Claims in the amount of One Hundred Thousand Dollars ($100,000.00). In the event the

Court rejects this allocation, the paities will meet and confer with the Cornt to reach a penalty

allocation acceptable to all patties that does not materially alter the terms of the Settlement or

increase the Class Settlement Amount. The PAGA Settlement Amount shall be distributed as



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follows: 75% ($75,000.00) to the California Labor & Workforce Development Agency ("LWDA")

(the "L WDA Payment") and the remaining 25% ($25,000.00) shall be included in the Net Settlement

Amount. Plaintiff shall apply to the Cami for approval of these payments under PAGA and shall

provide a copy of the Settlement to the LWDA at the same time Plaintiff files a motion for

preliminary approval of the Settlement with the Court in accordance with Labor Code§ 2699(1).

Class Counsel shall provide confirmation to Defendants' counsel that the submission to the LWDA

has been completed.

T. The "Parties."

Class Representative Silken Brown and Defendants Cinemark USA, Inc. and Century

Theatres, Inc.

U. "Pay Periods."

Fomteen (14) day pay periods designated by Cinemark and worked by Class Members within

the Class Period during which the Class Members were paid overtime.

V. "Released Parties."

Defendants and each of their respective past, present and future owners, stockholders, all

present and former parents, related or affiliated companies, subsidiaries, officers, directors,

shareholders, employees, principals, heirs, representatives, accountants, agents, attorneys,

representatives, auditors, consultants, insurers and re-insurers, and their respective predecessors or

successors in interest and each of their company-sponsored employee benefit plans of any nature

(including, without limitation, profit-sharing plans, pension plans, 401(k) plans, and severance plans)

and all of their respective officers, directors, employees, administrators, fiduciaries, trustees and

agents, and any other individual or entity which could be jointly liable with Defendants.

W. "Request(s) for Exclusion."

A written statement requesting exclusion from the Settlement. The Request for Exclusion

must contain the Class Member's name, address, telephone number, and the last four digits of the

Class Member's social security number or full Employee ID number, and must be timely submitted

by the Response Deadline and received by the Settlement Administrator.



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1 X. "Response Deadline."

2 The date fotty-five (45) calendar days after the Settlement Administrator mails the Notice to

3 Class Members and the last date on which Class Members may postmark or fax a Request for

4 Exclusion or file an objection to the Settlement.

5 Y. "Settled Claims."

6 The claims released by Class Members, other than those who submit valid and timely

7 Requests for Exclusion, including all claims, demands, rights, liabilities, and causes of action of

8 every nature and description whatsoever, whether known or unknown, whether in tort, contract,

9 statute, rule, ordinance, order, regulation, or otherwise, whether for economic damages, non-

10 economic damages, restitution, civil or statutory penalties, wages, liquidated damages, interest or

11 attorneys' fees or costs, arising from the same set of operative facts alleged in the Complaints

12 litigated in this case (i.e. the Second Amended Complaint filed by Plaintiff Brown and the

13 Complaint filed by Joseph Amey (collectively the "Operative Complaints")), for direct and

14 derivative wage statement violations (including claims for failure to keep accurate records and

15 failure to provide accurate wage statements), and PAGA penalties associated with such alleged wage

16 statement violations (the "PAGA Claims"). The Settled Claims specifically include any and all

17 claims to recover civil penalties, statutory penalties, or damages under Labor Code§ 226 or Labor

18 Code § 226.3 and the PAGA for any alleged violation of Labor Code § 226, and any claims under

19 Business and Professions Code§ 17200 and all applicable Industrial Wage Commission Wage

20 Orders related to direct or derivative wage statement claims as alleged in the Operative Complaints.

21 The Settled Claims are those that accrued during the Settlement Class Period.

22 Z. "Settlement Administrator."

23 The Settlement Administrator selected by the Parties is Simpluris.

24 AA. "Settlement Class Period."

25 The Settlement Class Period shall be from December 3, 2011 to the date the Comt

26 preliminarily approves the Settlement.

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1 II.

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RECITALS

A. Silken Brown filed suit against Defendants in the Superior Couit of California for the

3 County of San Francisco on December 3, 2012, alleging proposed class and representative claims

4 under PAGA for failure to pay for all hours worked, failure to provide compliant wage statements,

5 failure to timely pay all wages earned during employment and upon termination, and failure to pay

6 repo1ting time pay. On January l 0, 2013, Brown amended her complaint to include Mario De La

7 Rosa as a named plaintiff. On August 23, 2013, Brown and De La Rosa amended their complaint

8 again to add claims for the failure to provide meal periods and to authorize and permit rest periods.

9 On August 29, 2013, Defendants removed this Action to the United States District Court for the

10 No1thern District of California. On March 17, 2014, Brown's Action was consolidated with a

11 lawsuit by Joseph Amey, filed July 25, 2013. Both Amey and De La Rosa have since dismissed

12 their claims with prejudice and neither remain named plaintiffs or class representatives in this

13 Action; further, both are excluded from paiticipation in this Settlement as Class Members.

14 B. On January 21, 2015, Plaintiffs filed a motion to certify a class action with respect to

15 all of the pleaded claims. Plaintiffs sought to represent a class of all current and former non-exempt

16 employees of Cinemark's California theaters from December 3, 2008. Also on January 21, 2015,

17 Cinemark filed a motion to deny ce1tification of, and to dismiss, Plaintiffs' PAGA claims. Cinemark

18 later filed a motion for judgment on the pleadings as to Plaintiffs' claim that Cinemark failed to

19 provide compliant wage statements that identified all applicable hourly rates of pay.

20 C. On May 13, 2015, the district court denied Plaintiffs first motion for class

21 certification and granted Defendants' motion for judgment on the pleadings and dismissed Plaintiffs'

22 PAGA claims.

23 D. On October 28, 2015, Cinemark moved for summary judgment on the remaining

24 individual claims asse1ted by Brown, De La Rosa, and Amey. The district cou1t issued a tentative

25 ruling, which granted in part and denied in pait the summary judgment motion. The patties

26 stipulated to the tentative order. Amey then settled and released his claims against Cinemark, and

27 judgment was entered on his claims with prejudice, with Amey and Defendants each bearing their

28 own fees and costs. Amey did not reserve any appellate rights and his claims are no longer part of



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1 this case. Brown and De La Rosa also settled their individual claims with Cinemark, "expressly

2 subject to a preservation of [their] appellate rights of class claims (as to Plaintiffs Brown and De La

3 Rosa) and PAGA claims (as to Plaintiff Brown only)." The district court entered judgment on

4 Brown and De La Rosa's claims in accordance with this agreement, and Brown and De La Rosa then

5 filed an appeal challenging the district court's orders denying class certification of Plaintiffs' wage

6 statement claim and granting Defendants' motion to dismiss Plaintiffs' PAGA claims to the extent

7 both claims were based on Cinemark's allegedly non-compliant wage statements and, specifically,

8 the alleged failure to identify all applicable hourly rates of pay.

9 E. On December 7, 2017, the United States Court of Appeals for the Ninth Circuit

10 reversed the orders appealed by Plaintiffs and remanded to the district court for a Rule 23 analysis

11 on Plaintiffs' direct wage statement claim and resolution of Brown's PAGA claim.

12 F. On April 18, 2018, Plaintiff Brown filed a second motion for class ce1tification in the

13 Action seeking ce1tification of a class of non-exempt employees at Defendants' California theaters.

14 The district court granted Plaintiff's second class certification motion on August 17, 2018, certifying

15 a class defined as "all current and former non-exempt employees of Cinemark's California theaters

16 since December 3, 2011 who were paid overtime during at least one pay period." On August 22,

17 2018, the district court limited the class definition to a class of ushers and concession workers for the

18 period beginning December 3, 2011, and a class of other non-exempt employees for the period

19 beginning July 25, 2012. Pursuant to a stipulation by the Patties, on September 7, 2018, the class

20 definition was amended further such that the class certified is: "all current and former non-exempt

21 employees of Cinemark's California theaters who worked as an usher or concession worker from

22 December 3, 2011 until July 31, 2014, or in any other non-exempt position from July 25, 2012 until

23 July 31, 2014, and who were paid overtime compensation during at least one pay period." See

24 Order, Dkt. 189.

25 G. On October 26, 2018, the Parties, joined by plaintiff Mario De La Rosa, filed a

26 stipulation to dismiss De La Rosa, and all claims asse1ted on his behalf, with prejudice. The Parties'

27 joint stipulation was entered as an order by the district court on October 30, 2018.

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H. On October 31, 2018, Class Representative Brown, her counsel, Defendants, and

Defendants' counsel appeared before the Honorable Joseph C. Spero, United States Magistrate

Judge, for a judicial settlement conference. At the judicial settlement conference and as the result of

arm's length negotiations, the Patties reached an agreement to settle the class and PAGA claims

asse1ied by Brown. Although the Parties entered a binding settlement and executed a Memorandum

of Agreement ("MOU") on October 31, 2018, the Parties agreement provided that the MOU would

be further memorialized in a formal written agreement (i.e., this Settlement Agreement).

I. Cinemark denies any liability or wrongdoing of any kind associated with the claims

alleged in the Action and disputes the penalties claimed by the Class Representative. Cinemark

contends, among other things, that, at all times, it has complied with the California Labor Code with

respect to all wage statement requirements.

J. Class Counsel conducted a thorough investigation into the facts relevant to the

Action, including interviewing Class Members, reviewing Cinemark's wage statements,

propounding written discovery and obtaining formal written responses, taking depositions, and

reviewing documents and infonnation provided by Defendants during discovery. Based on their own

independent investigation and evaluation, Class Counsel is of the opinion that the Settlement with

Defendants is fair, reasonable and adequate, and in the best interest of the Class in light of all known

facts and circumstances, including the risks of significant delay, defenses asserted by Defendants,

unce1tainties regarding a class and representative action trial on the merits, and numerous potential

appellate issues. Although Defendants deny any liability, Defendants are agreeing to this Settlement

solely to avoid the cost of further litigation. Accordingly, the Parties and their counsel desire to fully,

finally, and forever settle, compromise and discharge all disputes and claims arising from or relating

to the Action on the terms set forth herein.

III. TERMS OF AGREEMENT

A. No Admission By The Parties.

Defendants and the other Released Parties deny any and all claims alleged in the Action and

deny all wrongdoing whatsoever. Defendants continue to assert, inter alia, that they complied with

all applicable laws and that they are not liable to Class Members and that the Class Members



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1 therefore are not entitled to any damages, penalties or other relief. This Settlement Agreement is

2 neither a concession nor an admission, and shall not be used against Defendants, or any of the

3 Released Parties as an admission or indication with respect to any claim of any fault, concession or

4 omission by Defendants, or any of the Released Parties. Whether or not the Settlement is finally

5 approved, neither the Settlement, nor any document, statement, proceeding or conduct related to this

6 Settlement, nor any reports or accounts thereof, shall in any event be:

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construed as, offered or admitted in evidence as, received as, or deemed to be

evidence for any purpose adverse to Defendants or the Released Parties,

including, but not limited to, evidence of a presumption, concession,

indication or admission by Defendants, or any of the Released Parties of any

liability, fault, wrongdoing, omission, concession or damage; or

disclosed, referred to or offered or received in evidence against Defendants or

any of the Released Parties in any further proceeding in the Action, or any

other civil, criminal or administrative action or proceeding, except for

purposes of settling the Action pursuant to this Settlement Agreement.

Settlement Consideration.

17 In exchange for the release of the Settled Claims, Defendants shall pay the Class Settlement

18 Amount, which shall be no more than Two Million Nine Hundred Thousand Dollars and Zero Cents

19 ($2,900,000.00). In no event shall Defendants be required to pay more than the Class Settlement

20 Amount.

21 c. Release by All Settlement Class Members.

22 As of the Effective Date, in exchange for the consideration set forth in this Agreement, all

23 Class Members, except those who submit a timely Request for Exclusion, shall release the Released

24 Paities from the Settled Claims as defined in this Agreement for the Class Period. Class Members

25 may hereafter discover facts or legal arguments in addition to or different from those they now know

26 or currently believe to be true with respect to the claims, causes of action and legal theories of

27 recovery in this case which are the subject matter of the Settled Claims. Regardless, the discovery of

28 new facts or legal arguments shall in no way limit the scope or definition of the Settled Claims, and




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by virtue of this Agreement, Class Members shall be deemed to have, and by operation of the final

judgment approved by the Couti, shall have, fully, finally, and forever settled and released all of the

Settled Claims as defined in this Agreement and any new or different claims that could have been

asse1ied based on the facts alleged in the Operative Pleadings.

D. Funding and Allocation of the Class Settlement Amount.

Within two (2) business days after the Effective Date, Cinemark USA, Inc. shall fund a

qualified settlement fund established by the Settlement Administrator in an amount not exceeding

the Class Settlement Amount. Net payments to Class Members, any Court-approved Enhancement

Payment to Plaintiff, payment to Class Counsel for Court-approved Attorneys' Fees and Costs, and

payment to the Settlement Administrator for all settlement administration expenses shall be made no

later than ten (10) calendar days after Cinemark USA, Inc. funds the qualified settlement fund (or on

the next business day thereafter if that date falls on a weekend). In no event shall payments be made

until five (5) days after the time to challenge any aspect of this Settlement by appeal has lapsed, and

if any such appeal is filed, until such time as all appeals are fully and finally resolved and result in

the upholding of the Settlement.

E. Class Member Distribution Formula.

The Settlement Administrator will calculate amounts to be paid to Class Members as

provided below and will pay all Individual Settlement Payments out of a qualified settlement fund,

on a confidential basis and issue appropriate IRS tax forms. All Class Members who do not submit a

timely and valid Request for Exclusion will receive an Individual Settlement Payment for their share

of the Net Settlement Amount. After deducting the Enhancement Payment, Attorneys' Fees and

Costs, the L WDA Payment, and the Settlement Administrator's fees and expenses, the balance of the

Class Settlement Amount (the Net Settlement Amount) will be distributed to Class Members as

follows:

1. Wage Statement Calculations: Defendants will calculate the total number of

Individual Wage Statements for each Class Member, and the total of all Class Wage Statements

received by Class Members during the Class Period. All Class Members will be deemed to have

received at least one Individual Wage Statement.



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2. Individual Settlement Payments: To determine each Class Member's

Individual Settlement Payment, the Settlement Administrator will use the following formula:

3.

a. Individual Settlement Payment = (Individual Wage Statements + Class

Wage Statements) x Net Settlement Amount.

b. The Individual Settlement Payments will be reduced by any required

legal deductions or withholdings for each participating Class Member,

if any.

All Individual Settlement Payments will be allocated as follows: one-hundred

9 percent (I 00%) to statutory and civil penalties. The Individual Settlement Payments shall be

10 reported on an IRS form I 099 by the Settlement Administrator. Class Members shall be responsible

11 for remitting to State and/or Federal taxing authorities any applicable taxes due.

12 4. Plaintiff Silken Brown and former plaintiffs Joseph Amey and Mario De La

13 Rosa shall not receive an Individual Settlement Payment, having all previously released their

14 individual claims in this case with prejudice.

15 5. No person shall have any claim against Defendants, Defendants' counsel,

16 Plaintiff, Class Counsel, or the Settlement Administrator based on distributions and payments made

1 7 in accordance with this Agreement.

18 6. The payment to any Class Member as provided for in this Settlement

19 Agreement is not and shall not be deemed by Defendants to constitute an addition to, a modification

20 of, or a change in any previously credited hours of service, compensation and/or wages under any

21 employee benefit plan, employment policy, or stock option plan of or sponsored by the Defendants

22 or any of their present or former parent corporations or affiliates or any jointly trusteed benefit plans.

23 Any such payment to any Class Member shall not be considered by Defendants to form the basis for

24 additional contributions to, additional benefits under, or any other additional entitlements under any

25 employee benefit plan, employment policy, or stock option plan of or sponsored by Defendants or

26 any of their present or former parent corporations or affiliates or any jointly trusteed benefit plans.

27 Defendants and each of their present and former parent corporations and affiliates retain the right to

28 modify and/or amend the language of their employee benefit plans, employment policies, and stock



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option plans, and to seek to have modified and/or amended the language of any jointly trusteed

benefit plans, to make clear that any amounts paid as a result of this Settlement Agreement are not

considered by Defendants as compensation or wages, or payments for "hours worked," as defined by

the applicable plans and policies, and that no additional contributions or benefits will be provided by

Defendants by reason of the Settlement.

F. Enhancement Payment, General Release and Waiver of Future Employment by

Plaintiff Brown.

1. Enhancement Payment to Class Representative.

Plaintiff will apply to the Court for an Enhancement Payment in an amount not to exceed Ten

Thousand Dollars ($10,000.00) for Plaintiff Silken Brown. Any such Enhancement Payment

approved by the Court shall be paid from the Class Settlement Amount. The Enhancement Payment

is in consideration of the broad General Release being agreed to by Plaintiff below (as distinct from

the more narrowly tailored Settled Claims and Release being agreed to on behalf of the Class

Members), Plaintiff's further agreement to waive the right to future employment with the

Defendants, and for the time, effort and litigation risks incurred by Plaintiff in bringing and

prosecuting the Action. Defendant agrees not to object to such application. The Settlement

Administrator (and not the Defendants) shall issue an IRS Form I 099 to Plaintiff reflecting her

Enhancement Payment, if any is awarded. No enhancement award shall be sought for Mario De La

Rosa or Joseph Amey, both of whom have been dismissed with prejudice from the Action.

2. General Release.

As of the Effective Date, in exchange for the Enhancement Payment set fo1th in this

Agreement, Plaintiff, for herself and her heirs, successors and assigns, does hereby waive, release,

acquit and forever discharge the Released Parties, from any and all claims, actions, charges,

complaints, grievances and causes of action, of whatever nature, whether known or unknown, which

exist or may exist on Plaintiffs behalf as of the date of this Agreement, including, but not limited to,

any and all tort claims, contract claims, wage claims, wrongful termination claims, disability claims,

benefit claims, public policy claims, retaliation claims, statutory claims, personal injury claims,

emotional distress claims, invasion of privacy claims, defamation claims, fraud claims, quantum



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meruit claims, and any and all claims arising under any federal, state or other governmental statute,

law, regulation or ordinance, including, but not limited to, claims for violation of the Fair Labor

Standards Act, the California Labor Code, the Wage Orders of California’s Industrial Welfare

Commission, other state wage and hour laws, the Americans with Disabilities Act, the Employee

Retirement Income Security Act, Title VII of the Civil Rights Act of 1964, the California Fair

Employment and Housing Act, the California Family Rights Act, the Family Medical Leave Act,

California’s Whistleblower Protection Act, California Business & Professions Code Section 17200

et seq., PAGA, and any and all claims arising under any federal, state or other governmental statute,

law, regulation or ordinance. This release specifically includes any personal stake and continued

financial interest in the advancement of the class claims and Private Attorneys General Act

(“PAGA”) claims alleged in the Second Amended Complaint in the Action, including but not limited

to Plaintiff’s interest in obtaining an enhancement award and penalties by reason of her potential role

as class representative and PAGA representative, as well any claim for attorneys’ fees and costs

(except as provided herein), as reserved by Plaintiff in paragraph 6 of the Confidential Settlement

Agreement and Release signed by Plaintiff on May 29, 2016.

Plaintiff hereby expressly waives and relinquishes any and all claims, rights or benefits she

may have under California Civil Code § 1542, which provides as follows:

A general release does not extend to claims that the creditor or releasing party does

not know or suspect to exist in his or her favor at the time of executing the release

and that, if known by him or her, would have materially affected his or her

settlement with the debtor or released party.

Plaintiff may hereafter discover claims or facts in addition to, or different from, those which

she now knows or believes to exist, but Plaintiff expressly agrees to fully, finally and forever settle

and release any and all claims against the Released Parties, known or unknown, suspected or

unsuspected, which exist or may exist on behalf of or against the other at the time of execution of

this Agreement, including, but not limited to, any and all claims relating to or arising from Plaintiff’s

employment with Defendants.


II DocuSign Envelope JD: 24C1 B9F5-A2EF-4FD1-BFBO-FOB5B889DB23

1 3. Plaintiff's Waiver of Future Employment.

2 Plaintiff also forever releases, waives, and relinquishes any right or claim to be hired by, or

3 to reinstatement with, Defendants.

4 4. Tax Treatment of Enhancement Payment.

5 The Parties make no representations as to the tax treatment or legal effect of the

6 Enhancement Payment, and Plaintiff is not relying on any statement or representation by Defendants

7 in this regard. Plaintiff understands and agrees that she will be responsible for the payment of any

8 taxes and penalties assessed on the Enhancement Payment described herein and will hold

9 Defendants free and harmless from and against any claims, liabilities, costs and expenses, including

10 attorney's fees, resulting in any way from personal tax treatment of the payments made pursuant to

11 this Agreement, including the treatment of such payments as not subject to withholding or deduction

12 for payroll and employment taxes.

13 5. Essential Terms.

14 The Patties futther acknowledge, understand and agree that the representations and

15 commitments in this section III.Fare essential to the Agreement and that this Agreement would not

16 have been entered into were it not for these representations and commitments.

17 G. Motions for Preliminary and Final Approval.

18 Class Counsel will prepare the motions for an order granting preliminary and final approval

19 of the Settlement and supporting papers. The motions for preliminary and final approval shall

20 address the requirements for Court-approval of class action settlements in the amended Federal

21 Rules of Civil Procedure, effective December l, 2018, and in the Procedural Guidance for Class

22 Action Settlements issued by the US District Comt for the Northern District of California, effective

23 November l, 2018. As pa1t of the preliminary and final approval process, Plaintiff and Class

24 Counsel shall ask the Court to approve, among other matters, the terms of the Settlement, the method

25 of providing notice, the Notice, the procedure for the calculation of the Individual Settlement

26 Payments, the Class Representative Enhancement Award and Class Counsel's Attorneys' Fees and

27 Costs. At least seven (7) days before filing each motion, Class Counsel shall email Defendants'

28 counsel an advance draft of the applicable motion and provide Defendants an opportunity to submit




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changes and comments to the motion. The Paities and their counsel will cooperate with each other

and use their best eff01ts to effect the Comt's approval of the motions for preliminary and final

approval. Class Counsel shall be responsible for preparing and filing the Post-Distribution

Accounting described in the No1thern District of California's Procedural Guidance for Class Action

Settlements. Class Counsel shall provide Defendants' counsel with a draft of the Post-Distribution

Accounting at least five (5) days before the filing deadline for review and approval before filing.

H. [Proposed] Final Approval Order, Final Judgment and Order Of Dismissal.

Upon final approval of the Settlement, the Court shall be requested to issue a [Proposed]

Final Approval Order and Final Judgment in substantially the same form as Exhibits 2 and 3,

respectively attached hereto, which shall, inter alia:

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1.

2.

3.

Grant final approval to the Settlement as fair, reasonable, adequate, in good

faith and in the best interests of the Class, as a whole, and order the Parties to

carry out the provisions of this Agreement.

Adjudge that all Class Members are conclusively deemed to have released

Defendants and the Released Pa1ties (as defined herein), of and from any and

all rights, claims, demands, liabilities, causes of action, liens and judgments

arising out of or in any way related to the Settled Claims.

Bar each Class Member who did not timely submit a Request for Exclusion

from prosecuting against the Defendants and the Released Parties (as defined

herein), any and all of the Settled Claims.

4. Reserve continuing jurisdiction as provided herein above.

Settlement Administration.

23 The Settlement Administrator shall be responsible for: (a) printing, issuing, and mailing the

24 Notice to the Class Members as directed by the Comt; (b) calculating, processing and mailing

25 payments to the Class Representative, Class Counsel, the L WDA, and Class Members; ( c) receiving

26 and reporting the objections and requests for exclusion; (d) distributing all required tax forms for

27 Individual Settlement Payments and the Enhancement Payment; (e) providing declaration(s), as

28 necessary, in support of preliminary and/or final approval of this Settlement; (f) providing the




1 information necessary for the Post~Distribution Accounting; (f) establishing and administering a

2 website for the Settlement; and (f) other tasks as the Parties mutually agree or the Court orders the

3 Settlement Administrator to perform.

4 The Settlement Administrator will post the Notice on an Internet website ("Internet Posting")

5 specifically created for the Settlement of this Action. The Internet Posting will also contain Brown's

6 Second Amended Complaint, the Notice, this Settlement Agreement, the Preliminary Approval

7 Order, Class Counsel's Motion for Attorneys' Fees and Costs, the date, time and location of the

8 Final Approval Hearing, and any other documents impo11ant to the Action as agreed upon by the

9 Parties or ordered by the Court. The Internet Posting shall be operative starting on or before fifteen

10 (15) calendar days after entry of the Preliminary Approval Order. The Internet Posting shall remain

11 active until the Court grants Final Approval of the Settlement and shall be made inactive after that

12 date.

13 The Settlement Administrator shall keep the Pai1ies timely apprised of the performance of all

14 Settlement Administrator responsibilities. All of the fees, costs and expenses of the Settlement

15 Administrator shall be paid from the Class Settlement Amount, as provided herein.

16 1. Class Data

17 No later than fom1een (14) days after the Com1 grants preliminary approval of the

18 Settlement, Defendants shall provide the Settlement Administrator with the following information to

19 the extent it is within Defendants' knowledge: (i) the name, (ii) last known mailing address, (iii) last

20 known telephone number, (iv) social security number, and (vi) the number of Individual Wage

21 Statements for each Class Member in the Class Period and the number of Class Wage Statements in

22 the Class Period (collectively, the "Class Data"). All Class Data provided by Defendants to the

23 Settlement Administrator shall be treated as Confidential under the terms of the Stipulated Protective

24 Order entered in this Action, and the Settlement Administrator may not provide the Class Data or

25 any information contained therein to any other individual or pa1ty, or use the Class Data or any

26 information contained therein for any purpose other than to administer this Settlement.

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II DocuSign Envelope ID: 24C1 B9F5-A2EF-4FD1-BFBO·FOB5B889D823

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2. Notice.

The Notice shall be in a form substantially similar to Exhibit 1. The Notice shall set forth the

release to be given by all Class Members who do not timely request to be excluded from the

Settlement, as permitted herein. The Notice shall set forth the material terms of the Settlement. The

Notice shall expressly advise the Class Members of their right to opt out of the Settlement in its

entirety.

3. Exclusion/Opt Out Rights.

The Notice to the Class Members shall state that Class Members who wish to exclude

themselves from the Settlement must timely submit to the Settlement Administrator a written

Request for Exclusion from the Settlement. The Request for Exclusion must contain the Class

Member's name, address, telephone number, last four digits of his/her social security number or the

Class Member's entire Employee ID number, and a statement that the Class Member wishes to be

excluded from the Settlement. The Request for Exclusion will not be valid if it is not timely

postmarked/faxed by the Response Deadline and received by the Settlement Administrator. The date

of the postmark on the return mailing envelope on the Request for Exclusion or fax confirmation

sheet shall be the exclusive means used to determine whether the Request for Exclusion was timely

submitted. Any Class Member who requests to be excluded from the Settlement pursuant to the

Exclusion/Opt-out rights set forth above will not be entitled to any recovery under the Settlement,

and will not be bound by the terms of the Settlement or have any right to object, appeal or comment

thereon. Class Members who fail to submit a valid and timely written Request for Exclusion on or

before the Response Deadline shall be bound by all terms of the Settlement and any final judgment

entered in this Action if the Settlement is approved by the Court. At no time shall any of the Parties

or their counsel seek to solicit or otherwise encourage Class Members to submit Requests for

Exclusion from the Settlement. Nothing in this paragraph, however, is intended in any way to

interfere with Class Counsel's fiduciary obligation to provide legal advice to Class Members about

their rights and options under the Settlement.




1 4. Objections.

2 The Notice to Class Members shall state that Class Members who wish to object to the

3 Settlement must file with the Court a written statement of objection ("Notice of Objection") by the

4 Response Deadline. The date on the postmark shall be deemed the exclusive means for determining

5 that a Notice of Objection was served timely. The Notice of Objection must be signed by the Class

6 Member and must state: (1) the full name of the Class Member; (2) all legal and/or factual bases

7 supporting the objection; (3) the dates of employment of the Class Member; and ( 4) a statement as to

8 whether the Class Member intends to appear at the Final Approval/Settlement Fairness Hearing.

9 Class Members who fail to make objections in the manner specified above may be deemed to have

10 waived any objections and may be foreclosed from making any objections (whether by appeal or

11 otherwise) to the Settlement, as determined by the Court. A Class Member may not be heard at the

12 Final Approval/Settlement Fairness Hearing unless he or she has submitted a timely objection that

13 complies with the procedures provided in this paragraph. At no time shall any of the Parties or their

14 counsel seek to solicit or otherwise encourage Class Members to file or serve written objections to

15 the Settlement or appeal from the Order and Final Judgment. Class Members who submit a Request

16 for Exclusion are not entitled to object to the Settlement.

17 5. Procedure for Objections to Class Counsel's Fee Request

18 Class Counsel shall file their motion for Attorneys' Fees and Costs within ten (10) days of

19 Notice being mailed by the Settlement Administrator to the Class. The Notice shall provide that

20 Class Members who wish to object to Class Counsel's application for Attorneys' Fees and Costs

21 must file with the Court a written statement objecting to Class Counsel's application for Attorneys'

22 Fees and Costs. Such written statement must be filed with the Comt no later than the Response

23 Deadline, which shall be no less than thi1ty-five (35) days after Class Counsel file their motion for

24 Attorneys' Fees and Costs. ("Attorneys' Fees Objection Deadline Date").

25 6. Notice By First Class U.S. Mail.

26 Upon receipt of the Class Data, the Settlement Administrator will perform a search based on

27 the National Change of Address Database and/or similar database(s) to update and correct any

28 known or identifiable address changes. No later than fomteen (14) calendar days after receiving the



II DocuSign Envelope ID: 24C1 B9F5-A2EF-4FD1-BFBO-FOBSB889DB23

1 Class Data from Defendants as provided herein (or on the next business day thereafter if that date

2 falls on a weekend), the Settlement Administrator shall mail copies of the Notice to all Class

3 Members via regular First Class U.S. Mail. The Settlement Administrator shall exercise its best

4 judgment to determine the current mailing address for each Class Member. The address identified by

5 the Settlement Administrator as the current mailing address shall be presumed to be the best mailing

6 address for each Class Member. In the event more than one address is identified, then the Settlement

7 Administrator shall mail to each potentially valid address.

8 7. Undeliverable Notices.

9 Any Notices returned to the Settlement Administrator as non-delivered on or before the

I 0 Response Deadline shall be re-mailed to the forwarding address affixed thereto. If no forwarding

11 address is provided, the Settlement Administrator shall promptly attempt to determine a correct

12 address by lawful use of skip-tracing, or other search using the name, address and/or social security

13 number of the Settlement Class Member involved, and shall then perform a re-mailing, if another

14 mailing address is identified by the Settlement Administrator. Settlement Class Members who

15 received a re-mailed Notice shall have their Response Deadline extended ten (I 0) days from the

16 original Response Deadline.

17 8. Defective Requests for Exclusion.

18 If the Settlement Administrator receives a defective Request for Exclusion, that does not

19 contain all of the required information and a valid signature, the Settlement Administrator shall

20 return such form to the Class Member via first class mail (i.e., provide a "Deficiency Notice") and

21 instruct the Class Member as to the basis of the deficiency, and that he or she has until ten (10) days

22 after the Response Deadline within which to correct, complete, and/or sign such form and return it to

23 the Settlement Administrator via first class mail. The Settlement Administrator will send only one

24 Deficiency Notice per member of the Class. If a completed Request for Exclusion is not received

25 within said time frame or remains defective, the Request for Exclusion shall be considered defective

26 and invalid for purposes of this Settlement.

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II DocuSign Envelope ID: 24C189F5-A2EF-4FD1-BFBO-F0858889D823

1 9. Disputes Regarding Individual Settlement Payments.

2 Class Members will have an opportunity to dispute the calculation provided in their Notices.

3 To the extent Class Members dispute Defendants' calculation of their Individual Wage Statements

4 that contain overtime during the Class Period, Class Members may produce evidence to the

5 Settlement Administrator showing that such information is inaccurate. The Settlement

6 Administrator will decide the dispute after conferring with the Parties. Defendants' records will be

7 presumed correct, but the Settlement Administrator will evaluate the evidence submitted by the

8 Class Member and will make the final decision as to the merits of the dispute. All disputes will be

9 decided within ten (l 0) business days of the Response Deadline. In no event shall the resolution of

10 any dispute require Defendants to pay more than the Class Settlement Amount.

11 10. Expiration of Checks and Uncashed Funds.

12 Any checks issued to Class Members shall remain valid and negotiable for one hundred and

13 eighty (180) days from the date of their issuance. If a Class Member does not cash his or her

14 settlement check within I 80 days, the uncashed settlement checks will not be re-issued and any

15 uncashed funds shall be transmitted to the California Department of Industrial Relations Unpaid

16 Wage Fund in the name of the Class Member so that all Class Members will have the opportunity to

17 claim their payments from the California Department of Industrial Relations after the expiration of

18 the settlement checks.

19 11. Disputes Regarding Administration of Settlement.

20 Any disputes not resolved by the Settlement Administrator concerning the administration of

21 the Settlement will be resolved by the Co mt under the laws of the State of California and the Court

22 shall retain jurisdiction to resolve all such disputes. Prior to any such involvement of the Court,

23 counsel for the Parties will confer in good faith to resolve the disputes without the necessity of

24 involving the Comt.

25 J. Reporting Requests for Exclusion/Opt-Outs and Objections.

26 No later than fifteen (15) calendar days after the Response Deadline, the Settlement

27 Administrator shall provide counsel for the Parties with a final repo1t showing the number of Class

28 Members who have submitted Requests for Exclusion.




1 K. Settlement Administration Costs.

2 The Parties agree payments to a Settlement Administrator chosen by the Patties shall be

3 made out of the Class Settlement Amount for the reasonable fees and expenses related to

4 administering this Settlement, including, but not limited to, printing, distributing, and tracking forms

5 for this Settlement, calculating Individual Settlement Payments per Class Member, tax reporting,

6 distributing payments from the Class Settlement Amount, and providing necessary reports and

7 declarations, and other duties and responsibilities as requested by the Parties. The settlement

8 administration costs are estimated to be Fo1ty Thousand Dollars ($40,000.00). If settlement

9 administration costs exceed the estimate, the excess will be paid from the Class Settlement Amount

10 prior to distribution of the Net Settlement Amount to paiticipating Class Members, subject to Comt

11 approval.

12 L. Class Counsel's Attorneys' Fees and Costs Award.

13 Class Counsel shall apply for an award of Attorneys' Fees and Costs within ten (10) days of

14 when Notice is mailed by the Settlement Administrator to the Class, and in no event less than thirty-

15 five (35) days prior to the Response Deadline. Defendants agree not to oppose application by Class

16 Counsel for attorneys' fees payable to Capstone Law APC from the Class Settlement Amount in the

1 7 amount of one-third of the Class Settlement Amount, or Nine Hundred Sixty-Six Thousand Dollars

18 ($966,667.00), plus costs and expenses (including costs awarded to Plaintiff on appeal by the Ninth

19 Circuit Court of Appeals) not to exceed Fifty Thousand Dollars ($50,000.00), payable from the

20 Class Settlement Amount. The Settlement Administrator (and not the Defendants) shall issue IRS

21 Form 1099 to Class Counsel reflecting the awarded Attorneys' Fees and Costs. The Patties agree

22 that any and all claims for attorneys' fees and costs have been settled by this Agreement and that

23 neither Plaintiff, Class Members, nor Class Counsel shall seek payment of attorneys' fees or

24 reimbursement of costs/expenses from Defendants except as set fo1th in this Agreement.

25 M. PAGA Payment.

26 Pursuant to PAGA, the Settlement Administrator shall pay seventy-five percent (75%) of the

27 PAGA Settlement Amount, or $75,000.00, to the California Labor and Workforce Development

28 Agency no later than thitty (30) calendar days after the Effective Date. Twenty-five (25%) of the



JI DocuSign Envelope ID: 24C189F5-A2EF-4FD1-BFBO·FOB5B889DB23

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PAGA Settlement Amount, or $25,000, will be part of the Net Settlement Amount and distributed to

Class Members as described in this Agreement.

N. Conditions Precedent.

This Settlement will become final and effective only upon the occurrence of all of the

following events:

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2.

The Court enters an order granting preliminary approval of the Settlement;

The Comt enters an order granting final approval of the Settlement and a Final

Judgment in the Action;

3. The time to file a Notice of Appeal of the Final Judgment and Order Granting

Final Approval of Class Action Settlement expires; or, if an appeal is timely filed, there is a final

resolution of any such appeal(s) from the Judgment and Order Granting Final Approval of Class

Action Settlement resulting in this Settlement being upheld; and

4. Defendants do not invoke their right to revoke the Settlement as provided in

Paragraph III.O herein.

0. Nullification of the Settlement Agreement.

If the number of persons that submit a Request for Exclusion on a timely basis is equal to or

in excess of five percent (5%) of the number of persons to whom Notices are mailed, Defendants

shall have the option, in their sole and absolute discretion, to be exercised within fourteen (14) days

ofreceiving notice of the total percentage of Requests for Exclusion, to void this Settlement by

notifying Class Counsel in writing of its intention to do so. If the option to nullify the Settlement is

exercised, then Defendants will be solely responsible for all costs of settlement administration

incurred to the date of nullification. The Settlement shall become void seven (7) days after the

delivery of such written notification unless, during that period, the parties agree in writing to a

mutually acceptable resolution and thereafter the Court approves such resolution.

If this Agreement is not preliminarily or finally approved by the Court, fails to become

effective, or is reversed, withdrawn or modified by the Court, or if Defendants exercise their right to

void the agreement as set forth in this Paragraph:




1 1. This Agreement shall be void ab initio and of no force or effect, and shall not

2 be admissible in any judicial, administrative or arbitral proceeding for any purpose or with respect to

3 any issue, substantive or procedural;

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2. The Parties shall return to the pre-settlement litigation status, prior to the

execution of this Settlement or the Memorandum of Agreement in the Action; and

3. None of the Parties to this Settlement will be deemed to have waived any

claims, objections, defenses or arguments in the Action.

8 IV.

9

MISCELLANEOUS PROVISIONS.

A. Notices.

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Unless otherwise specifically provided herein, all notices, demands, or other communications

given hereunder shall be in writing and shall be deemed to have been duly given as of the third

business day after mailing by United States ce11ified mail, return receipt requested, addressed as

follows:

To Plaintiff and the Class:

Raul Perez Melissa Grant Capstone Law APC 1875 Century Park East, Suite 1000 Los Angeles, California 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 E-Mail: [email protected] E-Mail: [email protected]

To Defendants:

Emily Burkhardt Vicente Hunton Andrews Kurth LLP 550 S. Hope Street, Suite 2000 Los Angeles, CA 90071 Telephone: (213) 532-2000 Facsimile: (213) 532-2020 E-Mail: [email protected]



II DocuSign Envelope ID: 24C1B9F5-A2EF-4FD1-BFBO-FOB5B8B9DB23

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B. Admissibility of Agreement.

This Agreement shall not be admissible in any proceeding for any purpose, except to enforce

it according to its terms.

C. Amendment or Modification.

This Agreement may be amended or modified only by a written instrument signed by counsel

for all Patties or their successors-in-interest.

D. Entire Agreement.

This Agreement and any attached exhibits constitute the entire Agreement among these

Parties, and no oral or written representations, warranties or inducements have been made to any

Party concerning this Agreement or its exhibits other than the representations, warranties and

covenants contained and memorialized in the Agreement and its exhibits.

E. Authorization to Enter into Settlement Agreement.

Counsel for all Pa1ties warrant and represent they are expressly authorized by the Pa1ties

whom they represent to negotiate this Agreement and to take all appropriate actions required or

permitted to be taken by such Parties pursuant to this Agreement to effectuate its terms, and to

execute any other documents required to effectuate the terms of this Agreement. The persons signing

this Agreement on behalf of Defendants represent and warrant that they are authorized to sign this

Agreement on behalf of Defendants. Plaintiff represents and warrants that she is authorized to sign

this Agreement and that she has not assigned any claim, or pa1t of a claim, covered by this

Settlement to a third-party.

F. Binding on Successors and Assigns.

This Agreement shall be binding upon, and inure to the benefit of, the successors or assigns

of the Parties hereto, as previously defined.

G. California Law Governs.

All terms of this Agreement and the exhibits hereto and any disputes arising hereunder shall

be governed by and interpreted according to the laws of the State of California.

24 JOINT STIPULATION OF CLASS ACTION SETTLEl'v:!ENT AND RELEASE OF CLAIMS


II DocuSlgn Envelope ID: 24C1B9F5-A2EF-4FD1-BFBO-FOB5B889DB23

1 H. Section 384 of the California Code of Civil Procedure.

2 The patties agree that this settlement is not subject to Section 384 of the California Code of

3 Civil Procedure.

4 I. Counterparts.

5 This Agreement may be executed in one or more counterparts, and signatures may be

6 provided in "wet ink," PDF, DocuSign, or via facsimile, all of which shall constitute "original"

7 executed signatures. All executed counterparts and each of them shall be deemed to be one and the

8 same instrument provided that counsel for the Parties to this Agreement shall exchange among

9 themselves copies or originals of the signed counterparts.

10 J. JurisdictionoftheCourt.

11 The Parties agree that the Court shall retain jurisdiction with respect to the interpretation,

12 implementation and enforcement of the terms of this Agreement and all orders and judgments

13 entered in connection therewith, and the Parties and their counsel hereto submit to the jurisdiction of

14 the Comt for purposes of interpreting, implementing and enforcing the settlement embodied in this

15 Agreement and all orders and judgments entered in connection therewith.

16 K. Invalidity of Any Provision.

17 Before declaring any provision of this Agreement invalid, the Court shall first attempt to

18 construe the provisions valid to the fullest extent possible consistent with applicable precedents so as

19 to define all provisions of this Agreement valid and enforceable.

20 L. Publicity.

21 The Patties and Class Counsel agree they will not issue any press releases, make any

22 statements on social media or other website, will not initiate any contact with the press, media

23 organization or publication entities, will not respond to any press inquiry or have any

24 communications with any press concerning this Settlement, including the fact of the Settlement, or

25 the amount or terms of the Settlement. As used in this paragraph, "any press" shall include, without

26 limitation, print, broadcast, television, satellite, internet and social media. The patties agree that if

27 they are contacted by any press then they will only state that this matter has settled.

28



II DocuSign Envelope ID: 24C189F5-A2EF-4FD1-BFBO-F0858889DB23

1 M. Waiver of Right to Object

2 Plaintiff agrees to sign this Settlement Agreement and by signing this Settlement Agreement

3 is bound by the terms herein stated and agrees not to request to be excluded from the Class. Plaintiff

4 also agrees not to object to any of the terms of this Settlement Agreement. NonMcompliance with

5 this paragraph shall be void and of no force or effect. Any such request for exclusion or objection

6 shall therefore be void and of no force or effect.

7 N. Exhibits Incorporated Herein.

8 All exhibits attached to this Settlement Agreement are hereby incorporated by reference as

9 though set fo1th folly herein and are a material part of this Settlement Agreement. Any notice, order,

10 judgment or other exhibit that requires approval of the Court must be approved without material

11 alteration from its current form in order for this Settlement Agreement to become effective.

12 Notwithstanding this paragraph, insubstantial changes to the attached exhibits shall not invalidate the

13 Settlement Agreement.

14 0. Headings.

15 The headings contained in this Settlement Agreement are for reference only and are not to be

16 construed in any way as a part of the Settlement Agreement.

17 P. Drafting.

18 Each party hereto has cooperated in the drafting and preparation of this Settlement

19 Agreement. Hence, in any construction to be made of this Settlement Agreement, the same shall not

20 be construed against any paity as drafter of this Settlement Agreement.

21 Q. Binding Effect.

22 This Settlement Agreement shall be binding upon and inure to the benefit of the parties

23 hereto and to their respective heirs, assigns and successorsMinMinterest.

24 R. Continuing Jurisdiction.

25 The Court shall have continuing jurisdiction to resolve any dispute which may arise with

26 regard to the terms and conditions of this Settlement Agreement as set forth herein.

27 s. Return of All Confidential Documents Produced by Defendants.

28 Plaintiff and Class Counsel agree to return or destroy all Confidential documents produced




1 by Defendants in the Action (whether produced in electronic or paper fonn) within ten (10) days of

2 Defendants' request. Should Settlement Class Counsel elect to destroy those documents, Settlement

3 Class Counsel shall ce1tify under penalty of pe1jury that such documents have been destroyed. To

4 the extent any info1111ation is provided during the Settlement process concerning Class Members, it

5 shall be designated Confidential under the tenns of the Stipulated Protective Order entered in this

6 Action and shall not be used except as provided therein.

7 WHEREFORE, Plaintiff, on her own behalf and on behalf of the Class, and Defendants, by

8 their duly autho1ized agents or counsel, have executed this Settlement Agreement as of the dates set

9 forth below.

10 IT IS SO STIPULATED.

11 PLAINTIFF SILKEN BROWN

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D d 1/29/2019

ate : -------~

Dated: J }'-\\ \ i

l DocuSignod by:

L~1:r2E. --------------Silken Brown, as an individual and as a representative of the Class

CINEMARK USA, INC.

By: _YAd___,__:~&_Qk~--""---Michael D. Cavalier Executive Vice President - General Counsel & Secretary

CENTURY THEATRES, INC.

By IY\·· &il Q)_ Michael D. Cavalier Executive Vice President - General Counsel & Secretary

Approval As To Form And Content Bv Counsel:

On Behalf of Plaintiff and the Class:

Dated: January 30, 2019 CAPSTONE LAW APC

By: ~fi,~~-~-·-J~~~~~~~~ Attorneys for Plaintiff and the Certified Class



II DocuSign Envelope ID: 24C1B9FS-A2EF-4FD1-BFBO-FOBSB889DB23

1 On Behalf of Defendants:

2 Dated: J l '-\ \ \ q

I ,., .)

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Exhibit 1


[DRAFT]

- 1 -

NOTICE OF CLASS ACTION SETTLEMENT AND

FINAL APPROVAL HEARING Silken Brown v. Cinemark USA, Inc. and Century Theatres, Inc.

United States District Court, Northern District of California Case No. 3:13-CV-05669-WHO

PLEASE READ THIS ENTIRE NOTICE CAREFULLY.

YOUR RIGHTS MAY BE AFFECTED BY THE PROPOSED SETTLEMENT DESCRIBED

IN THIS NOTICE.

TO: All current and former non-exempt employees of Cinemark’s California theaters who worked as an usher or concession worker from December 3, 2011 until July 31, 2014, or in any other non-exempt position from July 25, 2012 until July 31, 2014, and who were paid overtime compensation during at least one pay period.

A federal court authorized this notice. This is not a solicitation from a lawyer.

PLEASE READ THIS NOTICE CAREFULLY. IT RELATES TO A PROPOSED SETTLEMENT OF CLASS ACTION LITIGATION. IF YOU ARE A CLASS MEMBER, IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR INCLUSION IN THE SETTLEMENT AND YOUR RIGHT TO BE EXCLUDED FROM THE SETTLEMENT. YOUR LEGAL RIGHTS ARE AFFECTED EVEN IF YOU DO NOTHING.

A settlement has been reached between Plaintiff and Class Representative Silken Brown

(“Plaintiff” or “Class Representative”) on the one hand, and Defendants Cinemark USA, Inc. (“Cinemark”) and Century Theatres, Inc. (“Century”) (collectively “Defendants”), on the other hand, in the above-captioned civil action pending in this Court.

Plaintiff brings claims for alleged wage statement violations on behalf of certain employees or former employees of Cinemark and Century known as the Class Members (defined below). You have received this Notice because records indicate that you may be a Class Member. This notice is designed to advise you of your inclusion in the Settlement and how you can be excluded from the Settlement if you choose.

The Court has not decided in favor of Plaintiff or Defendants on the merits of the claims. Instead, all parties have agreed to a settlement. By agreeing to this Settlement, both sides avoid the costs and uncertainty of a trial, and Class Members receive the benefits described in this Notice. The proposed Settlement does not mean that any law was broken or that Cinemark or Century did anything wrong. The Class Representative and their lawyers believe the proposed Settlement is fair and is best for everyone who is affected.


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1. SUMMARY

Plaintiff Silken Brown brought a class action lawsuit against Defendants. Plaintiff alleges that Defendants are liable for statutory and civil penalties for alleged failures to furnish accurate, itemized wage statements as required by California law. Defendants deny Plaintiff’s allegations in their entirety. Defendants contend that Plaintiff and the members of the Class were timely provided with accurate, itemized wage statements in accordance with California law and are not owed any civil or statutory penalties. The case is styled as Brown v. Cinemark USA, Inc., et al., Case No. 3:13-cv-05669-WHO and is pending in the United States District Court for the Northern District of California (the “Action”).

2. CLASS DEFINITION

The Action is being settled as a class action. In a class action, a plaintiff or plaintiffs, also referred to as class representative(s), sue on behalf of themselves and other persons with allegedly similar claims. The Class in this case is defined as follows:

All current and former non-exempt employees of Cinemark’s California theaters who worked as an usher or concession worker from December 3, 2011 until July 31, 2014, or in any other non-exempt position from July 25, 2012 until July 31, 2014, and who were paid overtime compensation during at least one pay period.

Any person who previously settled or released all of the claims covered by this

Settlement, or any person who previously was paid or received awards through civil or administrative actions for all of the claims covered by this Settlement are not members of the Class.

If the Court approves the Settlement, the Settlement will bind all members of the Class

who have not excluded themselves from the Class. (You have the opportunity to exclude yourself from the Class pursuant to the procedure described below.) 3. CLASS REPRESENTATIVE AND CLASS COUNSEL

The Court has appointed Plaintiff Silken Brown as a Class Representative to represent the Class. The Court appointed the following attorneys to represent the Class as Class Counsel:

Melissa Grant Robert Drexler Jonathan Lee

CAPSTONE LAW APC 1875 Century Park East, Suite 1000

Los Angeles, California 90067 4. SETTLEMENT AMOUNT

The proposed Settlement obligates Defendants to pay a settlement amount (called the “Class Settlement Amount” in the Settlement Agreement) of Two Million Nine Hundred Thousand Dollars and No Cents ($2,900,000.00). This maximum payment by Defendants is “all inclusive,” and includes: (i) any statutory and civil penalties, damages, or other relief arising


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from Defendants’ provision of allegedly inaccurate wage statements; (ii) interest, attorneys’ fees and costs, as approved by the Court; (iii) the fees and costs of the Settlement Administrator in connection with the Settlement, including any fees and costs in connection with the notice and exclusion process, up to a maximum of Forty Thousand Dollars ($40,000.00); (iv) settlement payments to members of the Class who do not exclude themselves from the Settlement; (v) the incentive award to Plaintiff, as approved by the Court; and (vi) all other settlement-related payments and costs. In no event shall Defendants be obligated to pay more than the Class Settlement Amount. Class Members will be responsible for their own tax obligations, if any.

5. SUMMARY OF YOUR OPTIONS

As a member of the Class, you have the following options: 1. Do Nothing And Remain a Member of the Class. If you do not exclude yourself from the Class, you will remain a member of the Class, you will be bound by the Settlement Agreement, you will receive a cash payment, and you will give up the claims that are released by the Settlement Agreement. If you are a member of the Class and want to receive a settlement payment, you do not need to take any additional action. The Administrator identified below will mail a settlement check to your last known address. 2. Object to the Settlement. You are entitled to submit a timely written objection to the Settlement. If you wish to do so, you must file the objection with the Court by _____. If the Settlement Agreement is approved by the Court after your objection, you will remain a member of the Class, receive a settlement payment, and you will give up the claims that are released by the Settlement Agreement.

3. Exclude Yourself From the Class. You may exclude yourself from the Class by timely submitting a valid, written and signed Request for Exclusion. The written Request for Exclusion must contain your name, address, telephone number, the last four digits of your social security number or your full Cinemark Employee ID number, and a statement that you wish to be excluded from the Settlement Class. If you wish to exclude yourself from the Class, your Request for Exclusion must be postmarked or faxed and received by the Settlement Administrator at the address or fax number listed in Paragraph 6 below by ____. If you timely and validly exclude yourself from the Class, you will not receive any payment or any other benefits from the Settlement. You will retain the claims that will be released by members of the Class.

6. SETTLEMENT ADMINISTRATOR

The settlement process will be administered by Simpluris, Inc. (the “Administrator”), a company that provides settlement administration services. The Court has approved Simpluris to act as the Settlement Administrator for purposes of this Settlement. The fees and costs of the Settlement Administrator will be paid out of and deducted from the Class Settlement Amount. The Settlement Administrator can be contacted as follows:

[Settlement Administrator]

[address line 1] [address line 2] [phone number]

[fax number]


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[Settlement Website]

7. RELEASE AND WAIVER

If the Court approves the Settlement, then as of the Effective Date, all Class Members who did not submit a valid Request For Exclusion will release Defendants and each of their respective past, present and future owners, stockholders, all present and former parents, related or affiliated companies, subsidiaries, officers, directors, shareholders, employees, principals, heirs, representatives, accountants, agents, attorneys, representatives, auditors, consultants, insurers and re-insurers, and their respective predecessors or successors in interest and each of their company-sponsored employee benefit plans of any nature (including, without limitation, profit-sharing plans, pension plans, 401(k) plans, and severance plans) and all of their respective officers, directors, employees, administrators, fiduciaries, trustees and agents, and any other individual or entity which could be jointly liable with Defendants, from the “Settled Claims” as defined below. If the Court approves the Settlement, the Class shall be barred from suing these Released Parties for any liability in any way related to or arising out of any Settled Claims (as defined below).

For purposes of this Settlement Agreement, the “Settled Claims” are defined as: all claims, demands, rights, liabilities, and causes of action of every nature and description whatsoever, whether known or unknown, whether in tort, contract, statute, rule, ordinance, order, regulation, or otherwise, whether for economic damages, non-economic damages, restitution, civil or statutory penalties, wages, liquidated damages, interest or attorneys’ fees or costs, arising from the same set of operative facts alleged in the Complaints litigated in this case (i.e. the Second Amended Complaint filed by Plaintiff Brown and the Complaint filed by Joseph Amey (collectively the “Operative Complaints”)), for direct and derivative wage statement violations (including claims for failure to keep accurate records and failure to provide accurate wage statements), and PAGA penalties associated with such alleged wage statement violations (the “PAGA Claims”). The Settled Claims specifically include any and all claims to recover civil penalties, statutory penalties, or damages under Labor Code § 226 or Labor Code § 226.3 and the PAGA for any alleged violation of Labor Code § 226, and any claims under Business and Professions Code § 17200 and all applicable Industrial Wage Commission Wage Orders related to direct or derivative wage statement claims as alleged in the Operative Complaints. The Settled Claims are those that accrued during the Settlement Class Period. 8. ATTORNEYS’ FEES AND COSTS

The attorneys representing the Class will ask the Court to award attorneys’ fees to them based upon a percentage of the gross settlement amount. In this case, Class Counsel will request an award of one-third (331/3%) of the Class Settlement Amount or Nine Hundred Sixty-Six Thousand Dollars ($966,667.00). Class Counsel also will seek reimbursement of reasonable costs and expenses that they have incurred on behalf of the Class (not to exceed Fifty Thousand Dollars ($50,000.00)), including costs awarded to Plaintiff on appeal by the Ninth Circuit Court of Appeals. These amounts would be paid from the Class Settlement Amount, as approved by the Court. 9. INCENTIVE AWARD

Plaintiff Brown will request the Court to approve an incentive award called an “Enhancement Payment” payable to Plaintiff Brown in an amount not to exceed $10,000.00. Any Enhancement Payment approved by the Court shall be paid from the Class Settlement


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Amount. The Enhancement Payment is in consideration of her assistance with the prosecution of the Action, the risks she took in doing so, and in exchange for the broad general release she is agreeing to (as distinct from the more narrowly tailored Settled Claims and Release agreed to on behalf of the Class).

10. PAYMENT TO THE CALIFORNIA WORKFORCE DEVELOPMENT AGENCY

Plaintiff asserted claims in the Action under the California Private Attorneys General Act (PAGA). The Parties have tentatively applied and will seek final approval from the Court for payments under PAGA. The Parties have agreed to allocate One Hundred Thousand Dollars ($100,000.00) (the “PAGA Settlement Amount”) from the Class Settlement Amount for the release of PAGA Claims and penalties, of which 75% ($75,000.00) shall be paid to the California Labor & Workforce Development Agency (“LWDA”) (the “LWDA Payment”). The remaining 25% ($25,000.00) (the “PAGA Allocation”) shall be included in the Net Settlement Amount and distributed among the participating Class Members who do not submit a Request for Exclusion as discussed below.

11. CALCULATION OF SETTLEMENT PAYMENTS

The “Net Settlement Amount” shall equal the Class Settlement Amount minus the total of: (1) Class Counsel’s Court-approved attorneys’ fees; (2) Court-approved reimbursement of Class Counsel’s costs; (3) Court-approved Enhancement Payment to Plaintiff; (4) the PAGA Allocation; and (5) the fees and costs of the Settlement Administrator in connection with the settlement administration including, without limitation, those connected with providing notice to the Class Members, tax reporting, and making settlement distributions to participating Class Members.

The amount available for distribution to each member of the Class who does not exclude himself/herself from the Class shall be calculated as follows:

1. Wage Statement Calculations: Defendants will calculate the total number of Individual Wage Statements containing overtime for each Class Member, and the total of all Class Wage Statements containing overtime received by Class Members during the Class Period. 2. Individual Settlement Payments: To determine each Class Member’s Individual Settlement Payment, the Settlement Administrator will use the following formula: a. Individual Settlement Payment = (Individual Wage Statements ÷ Class Wage Statements) × Net Settlement Amount. Your estimated number of Individual Wage Statements containing overtime is ____. Your estimated Individual Settlement Payment is $_____. Please note that the actual payment you receive may be more or less than this amount. b. The Individual Settlement Payments will be reduced by any required legal deductions or withholdings for each participating Class Member, if any. 3. Dispute Process. Class Members will have an opportunity to dispute the calculation provided in their Notices. To the extent Class Members dispute Defendants’ calculation of the number of Individual Wage Statements they received that reflect overtime hours worked during the Class Period, Class Members may produce evidence to the Settlement Administrator showing


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that the calculation is inaccurate. The Settlement Administrator will decide the dispute after conferring with the Parties. Defendants’ records will be presumed correct, but the Settlement Administrator will evaluate the evidence submitted by the Class Member and will make the final decision as to the merits of the dispute. In no event shall the resolution of any dispute require Defendants to pay more than the Class Settlement Amount. If you wish to dispute the calculation set forth in this paragraph, you must submit a letter to the Settlement Administrator by no later than [INSERT OBJECTION DEADLINE], that provides the following information: (i) your name; (ii) the last for digits of your Social Security Number or your Cinemark Employee ID number; (iii) the number of wage statements you contend were issued to you that reflected overtime during the Class Period and the dates of those wage statements, and (iv) any evidence to support your calculation. 3. Tax Liability and Net Payments: All Individual Settlement Payments will be allocated as follows: one-hundred percent (100%) to statutory and civil penalties. The Individual Settlement Payments shall be reported on an IRS form 1099 by the Settlement Administrator. Class Members shall be responsible for remitting to State and/or Federal taxing authorities any applicable taxes due.

4. No person shall have any claim against Defendants, Defendants’ counsel, Plaintiff, Class Counsel, or the Settlement Administrator based on distributions and payments made in accordance with this Agreement. 5. Expiration of Checks and Uncashed Funds: Any checks issued to Class Members shall remain valid and negotiable for one hundred and eighty (180) days from the date of their issuance. If a Class Member does not cash his or her settlement check within 180 days, the uncashed settlement checks will not be re-issued and any uncashed funds shall be transmitted to the California Department of Industrial Relations Unpaid Wage Fund in the name of the Class Member so that all Class Members will have the opportunity to claim their payments from the California Department of Industrial Relations after the expiration of the settlement checks.

12. RIGHT TO BE EXCLUDED FROM THE SETTLEMENT

You may exclude yourself from the Class and the Settlement. To do so, you must complete and sign a written Request for Exclusion that contains your name, address, telephone number, the last four digits of your social security number or your full Employee ID number, and a statement that you wish to be excluded from the Class. The Request for Exclusion must be timely postmarked/faxed to the Settlement Administrator at the address set forth above in Section 6 of this Notice no later than [INSERT Date: 45 days after mailing of Notice] (the “Response Deadline”). The date of the postmark on the return mailing envelope or a fax confirmation sheet shall be the exclusive means used to determine if the Request for Exclusion was timely submitted. If the Notice mailed to you is returned to the Administrator by the post office as undeliverable, the Settlement Administrator will perform one “skip trace” to locate an updated address for you and the Notice will be re-mailed to your new address. In such event, your deadline to submit the Request for Exclusion will be extended ten (10) days from the original Response Deadline. If you request to be excluded from the Settlement, you will not receive any cash payment from the Settlement, and you will not release any claims.


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Any member of the Class who does not provide the Settlement Administrator with a valid and timely Request for Exclusion shall be bound by all the terms and conditions of the Settlement, including, without limitation, the releases provided for in the Settlement Agreement and any Final Judgment entered by the Court.

13. RIGHT TO OBJECT

You can ask the Court to deny approval of the Settlement by filing an objection. You can’t ask the Court to order a different settlement; the Court can only approve or reject the Settlement. If the Court denies approval, no settlement payments will be sent out and the lawsuit will continue. If that is what you want to happen, you must object. Class Members also have a right to object to Class Counsel’s application for Attorneys’ Fees and Costs. Class Counsel will file their request for Attorneys’ Fees and Costs at least thirty-five (35) days before the Objection Deadline. You can obtain a copy of Class Counsel’s Motion for Attorneys’ Fees and Costs at www.xxxxx.com or by visiting the office of the Clerk of the Court for the United States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, CA 94102. To object to the proposed Settlement or Class Counsel’s request for attorneys’ fees and costs, you must file with the Court a written objection. All written objections and supporting papers must (a) clearly identify the case name and number (Brown v. Cinemark USA, Inc., et al., Case No. 3:13-cv-05669-WHO), (b) be signed by you and state your full name, all legal and/or factual bases supporting your objection, the dates of your employment, and a statement as to whether you or your representative intend to appear at the Final Approval/Settlement Fairness Hearing, (c) be submitted to the Court either by mailing them to the Class Action Clerk, United States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, CA 94102, or by filing them in person at any location of the United States District Court for the Northern District of California, and (d) be filed on or before [INSERT Date: 45 days after mailing of Notice]. Members of the Class who fail to file timely written objections in the manner specified above shall be deemed to have waived any objections to the Settlement and shall forever be foreclosed from making any objection (whether by appeal or otherwise) to the Settlement, or any aspect of the Settlement, including, without limitation, the fairness, reasonableness or adequacy of the proposed Settlement, or any award of attorneys’ fees, reimbursement of costs, or enhancement award. 14. FINAL APPROVAL HEARING

A hearing (the “Final Approval Hearing”) has been scheduled on [INSERT Date and Time of Final Approval Hearing], before the Honorable William H. Orrick in Courtroom 2 (Seventeenth Floor) at the United States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, CA 94102, at which time the Court will determine: (1) whether the proposed Settlement should be approved as fair, reasonable, and adequate to members of the Class; (2) whether the application of Class Counsel for an award of attorneys’ fees and costs should be approved and in what amount; (3) whether the application for an enhancement payment for Plaintiff should be approved and in what amount; and (4) whether a proposed Final Approval Order should be entered, dismissing the Action with prejudice. The


http://www.xxxxx.com/

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date of the Final Approval Hearing may change without further notice to you. You may check [the Settlement Website or the Court’s PACER site] to confirm the date has not been changed.

You Are Not Required To Attend The Final Approval Hearing.

If you file a timely written Objection, you may, but are not required to, appear at the Final Approval Hearing either in person or through your own attorney. If you appear through your own attorney, you are responsible for hiring and paying that attorney. If you want to speak at the Final Approval Hearing, you must request permission from the Court. To do so, send a letter to the Court at Class Action Clerk, United States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, CA 94102, with a copy to the Administrator (at the address set forth in Section 6 of this Notice), no later than [INSERT OBJECTION DEADLINE], requesting permission to speak at the Final Approval Hearing. Such letter should be signed and should contain a brief statement of the position that you wish to put before the Court at the Final Approval Hearing and the basis for that position. The Court may, or may not, grant the request. 15. REMINDER OF IMPORTANT SETTLEMENT DATES AND DEADLINES

The following are important dates and deadlines under the proposed Settlement:

Request For Exclusion Deadline: [INSERT Date: 45 days after mailing of

Notice]

Deadline To Object To Settlement: [INSERT Date: 45 days after mailing of Notice]

Deadline To Object To Motion for Attorneys’ Fees & Costs:

[INSERT Date: 35 days after Plaintiffs file motion for Attorneys’ Fees and Costs, which must be filed within 10 days of Notice being mailed]

Deadline to Dispute Individual Settlement Payment Calculation

[INSERT Date: 45 days after mailing of Notice]

Final Approval Hearing: [INSERT date]

16. ADDITIONAL INFORMATION

This Notice summarizes the proposed Settlement. For the precise terms and conditions of the Settlement, please see the Settlement Agreement and other case-related documents, which are available at www._______.com, by accessing the Court’s docket in this case, for a fee, through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.cand.uscourts.gov, or by visiting the office of the Clerk of the Court for the United States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, CA 94102, between 9:00 a.m. and 4:00 p.m., Monday through Friday, excluding Court holidays.


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Any questions concerning the matters contained in this Notice also may be directed to the Settlement Administrator.

Do Not Call Or Write The Court To Obtain Copies Of Documents Or To Ask Questions About The Settlement.


Exhibit 2


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[PROPOSED] ORDER FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT




Plaintiffs,

v. CINEMARK USA, INC., et al.,

Defendants.

CASE NO.: 3:13-CV-05669-WHO Hon. William H. Orrick [PROPOSED] ORDER FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Date: Time: Courtroom 2 (Seventeenth Floor)


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1 [PROPOSED] ORDER FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

The parties have submitted their Joint Stipulation of Class Action Settlement and Release of

Claims (the “Settlement Agreement”), which this Court preliminarily approved in its Order For

Preliminary Approval Of Class Action Settlement, dated _______________, 2019 (the “Preliminary

Approval Order”). In accordance with the Preliminary Approval Order, Class Members have been

given adequate notice of the terms of the Settlement Agreement and their right to participate in,

object to, or opt-out of the settlement. In addition, pursuant to the Class Action Fairness Act of 2005

(“CAFA”), 28 U.S.C. § 1715, the United States Attorney General, the California Attorney General,

and the attorney generals of any and all other states where Class Members resided at the time notice

was issued have been given notice of the settlement of this action.

Having received and considered the Settlement Agreement (the terms of which are expressly

incorporated in full by this reference and made a part of this Order), the supporting papers filed by

the parties, the application for final approval of the settlement, the application for an award of Class

Counsel’s attorneys’ fees and reimbursement of costs, the application for incentive award for the

Class Representative, the request for reimbursement of the costs of the Settlement Administrator, the

proposed PAGA allocation, and the evidence and argument received by the Court at the Final

Approval Hearing on __________________, 2019, the Court GRANTS final approval of the

settlement, and hereby ORDERS as follows:

1. The Class covered by this Order is defined as:

All current and former non-exempt employees of Cinemark’s California theaters who worked as an usher or concession worker from December 3, 2011 until July 31, 2014, or in any other non-exempt position from July 25, 2012 until July 31, 2014, and who were paid overtime compensation during at least one pay period.

2. Pursuant to this Court’s Preliminary Approval Order, a Notice of Class Action

Settlement was sent to each Class Member by first-class mail. The Notice informed Class Members

of the terms of the settlement, their right to object to or opt-out of the settlement to pursue their own

remedies, and their right to appear in person or by counsel at the Final Approval Hearing to be heard

regarding approval of the settlement. Adequate periods of time were provided by each of these


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procedures. No Class Members filed written objections to the settlement as part of this notice

process or stated his or her intent to appear at the Final Approval Hearing.

3. The Court finds and determines that this notice procedure afforded adequate

protections to Class Members and provides the basis for the Court to make an informed decision

regarding approval of the settlement based on the responses of Class Members. The Court finds and

determines that the Notice provided in this case was the best notice practicable, which satisfied the

requirements of law and due process.

4. The Court further finds and determines that the terms of the settlement are fair,

reasonable, and adequate to the Class and to each Class Member and that the Class Members who

have not opted out shall be bound by the Settlement Agreement, that the settlement is ordered finally

approved, and that all terms and provisions of the Settlement Agreement should be and hereby are

ordered to be consummated.

5. In its Preliminary Approval Order, the Court previously found, and now reaffirms,

that the allocation of settlement proceeds to the claim brought pursuant to the California Labor Code

Private Attorneys General Act of 2004, Cal. Lab. Code § 2698, et seq. (“PAGA”) as set forth in the

Settlement Agreement is fair and reasonable to the State of California.

6. The Court finds that Defendants have fully complied with CAFA’s notice

requirements.

7. The Court finds and determines that the payments to be made to the Class Members

as provided for in the Settlement Agreement are fair and reasonable. The Court hereby grants final

approval to and orders the payment of those amounts be made to the Class Members out of the Two

Million Nine Hundred Thousand Dollars and No Cents ($2,900,000.00) Class Settlement Amount in

accordance with the terms of the Settlement Agreement.

8. The Court hereby grants and approves the application presented by Settlement Class

Counsel for an award of attorneys’ fees in the amount of $_______________, to be paid in

accordance with the terms of the Settlement Agreement.


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9. The Court hereby grants and approves the application presented by Class Counsel for

an award of costs in the amount of $__________________, to be paid in accordance with the terms

of the Settlement Agreement.

10. The Court hereby grants and approves the application presented by the Class

Representative for an enhancement payment in the amount of $__________ for Plaintiff Brown, to

be paid in accordance with the terms of the Settlement Agreement.

11. The Court hereby grants and approves the application for payment of costs of

administration of the Settlement in the amount of $________________ for the fees and expenses of

Simpluris, Inc., the settlement administrator approved by the Court (the “Settlement Administrator”).

12. Within twenty-one (21) days after the distribution of the settlement funds and

payment of attorneys’ fees, the parties should file a Post-Distribution Accounting and written

certification of such completion from the Settlement Administrator with the Court.

13. Upon the Effective Date of the Settlement (as defined in paragraph I.K of the

Settlement Agreement), all Class Members who did not submit a valid Request For Exclusion Form

release Defendants and each of their respective past, present and future owners, stockholders, all

present and former parents, related or affiliated companies, subsidiaries, officers, directors,

shareholders, employees, principals, heirs, representatives, accountants, agents, attorneys,

representatives, auditors, consultants, insurers and re-insurers, and their respective predecessors or

successors in interest and each of their company-sponsored employee benefit plans of any nature

(including, without limitation, profit-sharing plans, pension plans, 401(k) plans, and severance plans)

and all of their respective officers, directors, employees, administrators, fiduciaries, trustees and

agents, and any other individual or entity which could be jointly liable with Defendants (the

“Released Parties”) from the “Settled Claims,” as defined below, during the Settlement Class Period,

which is defined in the Settlement Agreement as December 3, 2011 to the date the Court

preliminarily approved the Settlement.

14. The “Settled Claims” are defined as: All claims, demands, rights, liabilities, and

causes of action of every nature and description whatsoever, whether known or unknown, whether in

tort, contract, statute, rule, ordinance, order, regulation, or otherwise, whether for economic


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damages, non-economic damages, restitution, civil or statutory penalties, wages, liquidated damages,

interest or attorneys’ fees or costs, arising from the same set of operative facts alleged in Complaints

litigated in this case (i.e., the Second Amended Complaint filed by Plaintiff Brown and the

Complaint filed by Joseph Amey (collectively the “Operative Complaints”)), for direct and

derivative wage statement violations (including claims for failure to keep accurate records and

failure to provide accurate wage statements), and PAGA penalties associated with such alleged wage

statement violations (the “PAGA Claims”). The Settled Claims specifically include any and all

claims to recover civil penalties, statutory penalties, or damages under Labor Code § 226 or Labor

Code § 226.3 and the PAGA for any alleged violation of Labor Code § 226, and any claims under

Business and Professions Code § 17200 and all applicable Industrial Wage Commission Wage

Orders related to direct or derivative wage statement claims as alleged in the Operative Complaints.

The Settled Claims are those that accrued during the Settlement Class Period.

15. Pursuant to the Settlement Agreement, all Class Members (except for those who

timely submitted Request for Exclusion Forms) are permanently barred from prosecuting the

Released Parties for any Settled Claims.

16. The parties are hereby ordered to comply with the terms of the Settlement Agreement.

17. Without affecting the finality of this Final Order in any way, this Court retains

jurisdiction of all matters relating to the interpretation, administration, implementation, effectuation

and enforcement of this Order and the Settlement Agreement.

18. This action and the Settled Claims are hereby ordered dismissed with prejudice, each

side to bear its own costs and attorneys’ fees except as provided by the Settlement Agreement.

IT IS SO ORDERED.

Dated: ____________________, 2019

William H. Orrick UNITED STATES DISTRICT JUDGE


Exhibit 3


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[PROPOSED] FINAL JUDGMENT




Plaintiffs,

v. CINEMARK USA, INC., et al.,

Defendants.

CASE NO.: 3:13-CV-05669-WHO Hon. William H. Orrick [PROPOSED] FINAL JUDGMENT


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1 [PROPOSED] FINAL JUDGMENT

The Court has entered Final Approval of the parties’ Settlement Agreement. Accordingly,

Plaintiff’s and the Settlement Class Members’ claims against Defendants Cinemark USA, Inc. and

Century Theatres, Inc. LLC are hereby DISMISSED WITH PREJUDICE, and this Judgment shall

enter consistent with Federal Rule of Civil Procedure 58.

In accordance with the terms of the Settlement Agreement, the terms of which are expressly

incorporated herein, the Court shall have continuing jurisdiction: (a) to resolve any dispute that may

arise with regard to the terms and conditions of the Settlement Agreement; and (b) over the

correctness of the settlement administrator’s calculations and the amount of payments due under the

Settlement Agreement.

IT IS SO ORDERED.

Dated: ____________________, 2019

William H. Orrick UNITED STATES DISTRICT JUDGE
