pro hac vice › wp-content › uploads › ...RAPHAEL N. RAJENDRA Altshuler Berzon LLP JOSEPH M. SELLERS (pro hac vice) MIRIAM R. NEMETH (pro hac vice) Cohen Milstein Sellers & Toll,

PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENTWITH HAYNES DEFENDANT; MP&A; CASE NO. 3:14-cv-02096-RS

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MICHAEL RUBIN (SBN 80618)BARBARA J. CHISHOLM (SBN 224656)P. CASEY PITTS (SBN 262463)MATTHEW J. MURRAY (SBN 271461)RAPHAEL N. RAJENDRA (SBN 255096)Altshuler Berzon LLP177 Post Street, Suite 300San Francisco, California 94108Telephone: (415) 421-7151Facsimile: (415) 362-8064E-mail: [email protected]

[email protected]@[email protected]@altber.com

JOSEPH M. SELLERS (pro hac vice)MIRIAM R. NEMETH (pro hac vice)Cohen Milstein Sellers & Toll, PLLC1100 New York Ave NW, Suite 500Washington, DC 20005Telephone: (202) 408-4600Facsimile: (202) 408-4699E-mail: [email protected]

[email protected]

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA – San Francisco

GUADALUPE SALAZAR, et al., on behalfof themselves and others similarly situated,

Plaintiffs,

vs.

MCDONALD’S CORP., et al.,

Defendants.

CASE NO. 3:14-cv-02096-RS

PLAINTIFFS’ NOTICE OF MOTION ANDMOTION FOR PRELIMINARY APPROVAL OFSETTLEMENT WITH HAYNES DEFENDANTAND FOR PRELIMINARY CERTIFICATIONOF SETTLEMENT CLASS; MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT

Date: May 4, 2017Time: 1:30 p.m.Courtroom: 3Judge: Hon. Richard Seeborg

Complaint Filed: March 12, 2014Trial Date: None set

Case 3:14-cv-02096-RS Document 277 Filed 03/29/17 Page 1 of 26

1PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT

WITH HAYNES DEFENDANT; CASE NO. 3:14-cv-02096-RS

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PLAINTIFFS’ NOTICE OF MOTION AND MOTIONFOR PRELIMINARY APPROVAL OF SETTLEMENT WITH HAYNES DEFENDANT

AND FOR PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS

PLEASE TAKE NOTICE that on May 4, 2017 at 1:30 p.m. or as soon thereafter as the

matter may be heard, in Courtroom 3 of the United States District Court for the Northern District of

California, located at 450 Golden Gate Avenue, San Francisco, California 94102, plaintiffs

Guadalupe Salazar, Genoveva Lopez, and Judith Zarate will and hereby do move this Court for an

order preliminarily approving the partial class action settlement in this matter between plaintiffs

(on their own behalf and on behalf of all similarly situated employees) and defendant Bobby O.

Haynes, Sr. and Carole R. Haynes Family Limited Partnership (“Haynes”).

The partial settlement does not affect any of the other defendants in this case and does not

release any claims against any of those other defendants.

Pursuant to Federal Rule of Civil Procedure 23, plaintiffs request that this Court:

1. Conditionally certify a settlement class comprising all individuals currently or formerly

employed as crew, crew trainers, or maintenance workers paid on an hourly basis (“crew

members”) at one or more of Haynes’, 4ATX Partnership’s, or BJGO Partnership’s eight

franchised McDonald’s restaurants in California (the “Restaurants”), at any time within the period

beginning on March 12, 2010 and ending on March 31, 2016;

2. Appoint plaintiffs Guadalupe Salazar, Genoveva Lopez, and Judith Zarate as class

representatives;

3. Appoint Altshuler Berzon LLP and Cohen Milstein Sellers & Toll, PLLC as class

counsel for the settlement class;

4. Grant preliminary approval of the partial class action settlement;

5. Grant approval of the proposed injunctive relief;

6. Approve the proposed form of notice and proposed method of notice to plaintiffs and

prospective class members in the class, including the proposed claim form;

7. Appoint RG/2 Claims Administration LLC as the claims administrator; and

8. Schedule a hearing for final approval of the settlement.


2PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT


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As part of the Settlement Agreement, plaintiffs agreed that Haynes may request that the

Court impose additional restrictions on class counsel’s communications with certain class members

that the parties did not agree to in the Settlement Agreement itself. Plaintiffs’ position, as set forth

in the accompanying Memorandum of Points and Authorities, is that no justification exists for

imposing any such restrictions. The Court can, and should, grant preliminary approval of the

settlement without imposing any such restrictions on class counsel’s communications with class

members not agreed to in the settlement.

This motion is made on the grounds that the settlement between plaintiffs and Haynes is the

product of extended arms-length, good-faith negotiations, is fair and reasonable to the class,

especially considering Haynes’ financial condition, and warrants preliminary approval for the

reasons set forth in the accompanying Memorandum of Points and Authorities.

Plaintiffs’ motion is based on this notice of motion and motion; the accompanying

Memorandum of Points and Authorities; the accompanying declaration of Michael Rubin; the

Settlement Agreement and exhibits, including the proposed Claim Form (for class members who

are not automatically eligible), Class Notice, and Plan of Allocation; the Proposed Order; the Court

record in this action; all matters of which the Court may take notice; and such arguments as the

Court permits at the hearing on this Motion.

Date: March 29, 2017 Respectfully submitted,

By: s/Michael RubinMichael Rubin

MICHAEL RUBINBARBARA J. CHISHOLMP. CASEY PITTSMATTHEW J. MURRAYRAPHAEL N. RAJENDRAAltshuler Berzon LLP

JOSEPH M. SELLERS (pro hac vice)MIRIAM R. NEMETH (pro hac vice)Cohen Milstein Sellers & Toll, PLLC



iMEMO. OF P&A IN SUPP. OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT


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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

TABLE OF CONTENTS

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

II. FACTS AND CASE HISTORY ............................................................................................ 2

a. The Litigation ............................................................................................................. 2

b. Discovery.................................................................................................................... 2

c. Settlement Discussions............................................................................................... 3

d. Subsequent Litigation Against McDonald’s .............................................................. 4

III. THE SETTLEMENT AGREEMENT.................................................................................... 4

IV. PROVISIONAL CLASS CERTIFICATION......................................................................... 7

a. The Proposed Class Meets the Requirements of Rule 23(a) ...................................... 8

b. The Proposed Class Meets the Requirements of Rule 23(b)(2) ............................... 10

c. The Proposed Class Meets the Requirements of Rule 23(b)(3) ............................... 11

i. Common Questions Predominate Over Any Individual Issues .................... 11

ii. Class Treatment is Superior to Individualized Actions................................ 12

V. THE SETTLEMENT SHOULD BE PRELIMINARILY APPROVED.............................. 13

VI. PUTATIVE CLASS LIST.................................................................................................... 16

VII. PROPOSED SCHEDULING ORDER................................................................................. 18

VIII. CONCLUSION .................................................................................................................... 18


iiMEMO. OF P&A IN SUPP. OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT


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TABLE OF AUTHORITIES

Cases

Abdullah v. U.S. Sec. Assocs., Inc.,731 F.3d 952 (9th Cir. 2013) ......................................................................................................... 9

Amchem Prods., Inc. v. Windsor,521 U.S. 591 (1997) ...................................................................................................................... 9

Barbosa v. Cargill Meat Solutions Corp.,No. 1:11-cv-00275-SKO, 2013 WL 3340939 (E.D. Cal. Jul. 2, 2013)....................................... 13

Cervantez v. Celestica Corp.,253 F.R.D. 562 (C.D. Cal. 2008) .................................................................................................. 8

Churchill Village, LLC v. Gen. Elec.,361 F.3d 566 (9th Cir. 2004) ....................................................................................................... 15

Class Plaintiffs v. City of Seattle,955 F.2d 1268 (9th Cir. 1992) ............................................................................................... 11, 13

Diaz v. Hillsborough Cnty. Hosp. Auth.,165 F.R.D. 689, 695 (M.D. Fla.1996) ......................................................................................... 10

Domingo v. New England Fish Co.,727 F.2d 1429 (9th Cir. 1984), modified, 742 F.2d 520 (9th Cir. 1984)..................................... 17

Eisen v. Carlisle & Jacquelin,417 U.S. 156 (1974) .................................................................................................................... 15

Ellis v. Costco Wholesale Corp.,657 F.3d 970 (9th Cir. 2011) ....................................................................................................... 10

Gooch v. Life Investors Ins. Co. of Am.,672 F.3d 402 (6th Cir. 2012) ................................................................................................. 15, 16

Gulf Oil Co. v. Bernard,452 U.S. 89 (1981) ...................................................................................................................... 16

Haley v. Medtronic, Inc.,169 F.R.D. 643 (C.D. Cal. 1996) .................................................................................................. 8

Hanlon v. Chrysler Corp.,150 F.3d 1011 (9th Cir. 1998) ....................................................................................... 1, 8, 10, 11

In re Live Concert Antitrust Litig.,247 F.R.D. 98 (C.D. Cal. 2007) .................................................................................................... 9

In re Online DVD-Rental Antitrust Litig.,779 F.3d 934 (9th Cir. 2015) ................................................................................................. 13, 15

In re Tableware Antitrust Litig.,484 F. Supp. 2d 1078 (N.D. Cal. 2007)....................................................................................... 13


iiiMEMO. OF P&A IN SUPP. OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT


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Johnson v. Shaffer, et al.,No. 2:12-cv-1059, 2013 WL 5934156 (E.D. Cal. Nov. 1, 2013) ................................................. 10

Jordan v. Cty. of Los Angeles,669 F.2d 1311 (9th Cir. 1982) ....................................................................................................... 8

Kamar v. Radio Shack Corp.,254 F.R.D. 387 (C.D. Cal. 2008) .......................................................................................... 11, 12

Lane v. Facebook, Inc.,696 F.3d 811 (9th Cir. 2012) ......................................................................................................... 1

McClellan v. SFN Group, Inc.,No. C 10-5972, 2012 WL 2367905 (N.D. Cal. June 21, 2012)..................................................... 9

McManus v. Fleetwood Enter., Inc.,320 F.3d 545 (5th Cir. 2003) ....................................................................................................... 10

McNamara v. Bre-X Minerals Ltd.,214 F.R.D. 424 (E.D. Tex. 2002) ................................................................................................ 13

Meyer v. Portfolio Recovery Assocs., LLC,707 F.3d 1036 (9th Cir. 2012) ....................................................................................................... 9

Monterrubio v. Best Buy Stores, L.P.,291 F.R.D. 443 (E.D. Cal. 2013)................................................................................................. 13

Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc.,221 F.R.D. 523 (C.D. Cal. 2004) ................................................................................................ 13

Parks v. Eastwood Ins. Servs., Inc.,235 F. Supp. 2d 1082 (C.D. Cal. 2002)....................................................................................... 17

Parsons v. Ryan,754 F.3d 657 (9th Cir. 2014) ....................................................................................................... 11

Schwartz v. Dallas Cowboys Football Club, Ltd.,157 F. Supp. 2d 561 (E.D. Pa. 2001)........................................................................................... 13

Staton v. Boeing Co,327 F.3d 938 (9th Cir. 2003) ....................................................................................................... 11

Tierno v. Rite Aid Corp.,No. C 05-02520, 2006 WL 2535056 (N.D. Cal. Aug. 31, 2006) ................................................ 12

Vallabhapurapu v. Burger King Corp.,No. C 11-00667 WHA, 2012 WL 2568183 (N.D. Cal. July 2, 2012)......................................... 10

Wal-Mart Stores, Inc. v. Dukes,564 U.S. 338 (2011) .................................................................................................................... 10

Wang v. Chinese Daily News, Inc.,737 F.3d 538 (9th Cir. 2013) ....................................................................................................... 10

Zinser v. Accufix Research Inst. Inc.,253 F.3d. 1180 (9th Cir. 2001) .................................................................................................... 12


ivMEMO. OF P&A IN SUPP. OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT


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Rules and Regulations

Fed. R. Civ. P. 23 ...................................................................................................................... passim

California Rules of Professional Conduct

Rule 1-500 ..................................................................................................................................... 17

Rule 3-110 ..................................................................................................................................... 17

Rule 3-500 .................................................................................................................................... 17

Treatises

Newberg on Class Actions §8.17 (5th ed. 2013) .............................................................................. 15


1MEMO. OF P&A IN SUPP. OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT


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I. INTRODUCTION

Plaintiffs request preliminary approval of their proposed class settlement with defendant

Bobby O. Haynes, Sr. and Carole R. Haynes Family Limited Partnership d/b/a McDonald’s

(“Haynes”). The settlement, which reflects Haynes’ financial condition and limited ability to pay a

greater amount, includes injunctive relief and a payment of $235,000, plus the costs of notice and

administration. See Decl. of Michael Rubin in Support of Pls.’ Motion for Preliminary Approval of

Settlement (“Rubin Decl.”) ¶3 & Ex. A (“Settlement Agreement”) ¶¶5, 25-27, 28, 37.1

The settlement is the product of lengthy, arms-length negotiations following extensive

litigation, substantial discovery, and multiple mediation sessions under the direction of Magistrate

Judge Jacqueline Scott Corley. Plaintiffs believe that this settlement is fair, adequate, and well

within the range of reasonableness, particularly given Haynes’ financial condition. Rubin Decl.

¶¶8-10 & Ex. A ¶¶5-6; Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998); Lane v.

Facebook, Inc., 696 F.3d 811, 823-24 (9th Cir. 2012) (taking defendant’s financial condition into

account in determining reasonableness).

The proposed class notice – which will be translated into Spanish and will be mailed in

English and Spanish to all class members whose contact information is known to defendant Haynes

– will provide class members the best practicable notice and will allow each class member a fair

opportunity to evaluate the settlement, including the class member’s estimated recovery and the

scope of the releases. See Rubin Decl. Ex. A ¶¶16 & Ex. 2.

For the reasons set forth below, plaintiffs request that this Court grant preliminary approval

of the settlement, provisionally certify the settlement class as described herein, approve the class

notice, enter an Order setting forth the injunctive relief agreed to by the parties, and establish a

schedule for final settlement approval.

___________________________________

1 This settlement does not resolve plaintiffs’ individual or class claims against McDonald’sCorp. or McDonald’s USA, LLC, which assert that these defendants are jointly and severally liablefor the full amounts owed to plaintiffs and the class members under California law, as alleged inthe First Amended Complaint, Dkt. 34. The Court granted the McDonald’s Defendants summaryjudgment on those claims, Dkts. 193, 273, and Plaintiffs intend to appeal those rulings. RubinDecl. ¶9 n.1.




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II. FACTS AND CASE HISTORY

a. The Litigation

This is a wage and hour lawsuit brought on behalf of current and former McDonald’s

employees at eight Bay Area restaurants operated by defendant Haynes (including related Haynes

family entities) under franchise agreements with defendant McDonald’s USA, LLC

(“McDonald’s”). Plaintiffs filed their initial Complaint on March 12, 2014 and their First

Amended Complaint on November 7, 2014, alleging that Haynes and McDonald’s are jointly and

severally liable for a number of California Labor Code violations. See Dkts. 1.2, 34. The

Complaints asserted 12 class claims for relief that challenged a series of common policies and

practices that resulted in defendants’ systematic underpayment of class members, including: (1)

failure to pay all earned wages because of a recurring error in converting employee time punch data

to payroll data; (2) failure to pay daily overtime to all class members at certain restaurants and to

those class members at all restaurants who work overnight shifts, as a result of legally incorrect

parameters programmed into defendants’ automated timekeeping and payroll system; (3) failure to

provide meal periods and rest breaks in the time and manner required by California law and failure

to ever pay missed meal period or rest break premium wages; (4) failure to reimburse crew

members for the time and money needed to maintain their McDonald’s uniforms; and (5) failure to

provide wage statements that accurately list all wages earned and that identify McDonald’s as an

employer. Plaintiffs’ lawsuit also raised the overarching issue of whether McDonald’s is a joint

employer or otherwise liable for the relief requested under California law. See Dkts. 1.2, 34.

Plaintiffs sought damages and injunctive relief. See Fed. R. Civ. P. 23(b)(2), 23(b)(3). The

operative complaint separately asserts an individual retaliation claim on behalf of plaintiff Salazar.

Dkt. 34 ¶¶62-63, 235-240.

b. Discovery

The parties have engaged in extensive discovery – including over a dozen depositions –

concerning the merits of plaintiffs’ claims, class certification issues, and defendants’ liability under

various legal theories. Defendants have produced hundreds of thousands of pages of documents,

including payroll and time records for the plaintiff class. See Rubin Decl. ¶7. Plaintiffs




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successfully moved to compel certain discovery from Haynes, and Haynes agreed to provide

additional discovery as part of the settlement. See Dkts. 70-76; Rubin Decl. Ex. A ¶8.

c. Settlement Discussions

Plaintiffs and Haynes participated in a mediation session under the direction of Magistrate

Judge Jacqueline Scott Corley in the fall of 2015, which included the McDonald’s defendants and

two other franchisees who were sued jointly with McDonald’s in two other lawsuits by aggrieved

crew members. See Rubin Decl. ¶4. Settlement discussions continued privately thereafter, with

Haynes ultimately agreeing to produce confidential financial information to demonstrate the

limitations on its ability to pay. Id. ¶5 & Ex. A ¶1(l). Plaintiffs’ counsel reviewed these materials

with the assistance of a forensic accountant, and concluded that if plaintiffs were to obtain a

significantly larger judgment from Haynes in this matter, that judgment might not be recoverable

and might result in the closure of restaurants where plaintiffs and other class members worked.

Rubin Decl. ¶9. After Haynes agreed to continue to produce discovery critical to plaintiffs’ claims

against McDonald’s and agreed to the injunctive relief Haynes was able to provide, the parties

were able to reach a mutually agreeable settlement, which they memorialized in a written

Memorandum of Understanding (MOU) signed on March 15, 2016, after a day-long mediation

session with Magistrate Judge Corley. See Id. ¶5.2 The MOU provided that the parties would

jointly draft a full Settlement Agreement, which they did, and executed it in March 2017. See

Rubin Decl. ¶5 & Ex. A (Settlement Agreement). The class period covered by the Settlement

Agreement ends on March 31, 2016, the month that the parties agreed to a class settlement in the

MOU. Id. ¶¶1(h), 1(j).

The named plaintiffs fully support the settlement, as do plaintiffs’ counsel, who believe that

the settlement is fair, reasonable, adequate, and in the best interests of the plaintiff class members.

See Rubin Decl. ¶¶8-10. The settlement reflects not only the risks and uncertainties of litigation,

___________________________________2 At the mediation, plaintiff Guadalupe Salazar and Haynes also reached a written

agreement resolving Salazar’s individual retaliation claim against Haynes for $10,000 and mutualcommitments regarding scheduling her shifts and her subsequent resignation. See Rubin Decl. ¶6.Salazar’s individual retaliation claim is independent from the classwide claims raised in this case.See Dkt. 34 ¶¶62-63, 235-240 (individual retaliation claim). The separate settlement of Salazar’sindividual retaliation claim will not be affected by the Court’s ruling on this motion for preliminaryapproval of the parties’ classwide settlement. See Rubin Decl. ¶6.




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but also Haynes’ documented financial condition and limited ability to pay a greater settlement

amount. See Rubin Decl. ¶9 & Ex. A ¶¶1(l), 5.

d. Subsequent Litigation Against McDonald’s

After plaintiffs and Haynes agreed to the settlement MOU, the McDonald’s Defendants

filed a motion for summary judgment on May 6, 2016, which the Court granted in part and denied

in part as to the claims against McDonald’s only. See Dkt. 87, 193. On September 23, 2016,

McDonald’s filed a motion to deny class certification and strike plaintiffs’ California Labor Code

Private Attorneys General Act (“PAGA”) claims. See Dkt. 199. On September 30, 2016, plaintiffs

filed their motion to certify the class claims against McDonald’s. See Dkt. 206. On January 5,

2017, the Court denied plaintiffs’ motion for class certification on the ground that plaintiffs’

remaining theory of McDonald’s liability – that Haynes was its ostensible agent – was not

appropriate for certification, and granted McDonald’s motion to strike the PAGA claims against

McDonald’s. See Dkt. 265. The Court subsequently granted McDonald’s second motion for

summary judgment. See Dkt. 267, 273. Those rulings have no effect on the present settlement

with Haynes, and the settlement preserves plaintiffs’ right to appeal those decisions. Plaintiffs

intend to pursue such an appeal. Rubin Decl. ¶9 n.1.

III. THE SETTLEMENT AGREEMENT

The Settlement Agreement establishes a non-reversionary $235,000 fund that will be

distributed according to a Plan of Allocation (Exhibit 3 to the agreement). Subject to Court

approval, payments will include: (1) a minimum of $183,000 for distribution to class members, (2)

$7,500 to California’s Labor and Workforce Development Agency (“LWDA”) pursuant to PAGA ;

(3) $1,500 as “service fees” to each of the three named plaintiffs who have, inter alia, submitted

declarations, been deposed at length, and participated in mediation sessions; (4) up to $10,000 for

plaintiffs’ counsel’s litigation expenses; and (5) up to $30,000 for plaintiffs’ counsel’s statutory

attorneys’ fees. See Rubin Decl. Ex. A ¶¶31-32. Any payments to LWDA, service fees to named

plaintiffs, or payments for attorneys’ fees and costs that are reduced by the Court will be added to

the amount available for distribution to the class. Id. ¶¶35-36.

Haynes will fully fund this settlement within 10 days after final approval by depositing the




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full settlement amount into a jointly controlled interest-bearing escrow account; and within seven

days of the effective date of this settlement, the funds will be transferred to a qualified settlement

fund established by the Claims Administrator. Id. ¶¶28-29. Separate and apart from these

amounts, Haynes will also pay the Claims Administrator, RG/2 Claims Administration LLC, for all

costs of class notice and administration. Id. ¶¶1(f), 37.

Payments to class members will be based primarily upon the number of weeks each class

member worked during the class period (March 12, 2010 to March 31, 2016). Id. ¶¶1(h), 1(j), 38 &

Ex. 3. The $2,500 employee portion of the PAGA penalty payment will be distributed on a pro

rata basis for each week worked after March 12, 2013 (the start of the PAGA limitations period).

Id. ¶¶1(u), 31, 38 & Ex. 3.

In addition to the monetary payments, the Settlement Agreement provides for the following

injunctive relief, which will take effect 10 days after the Court’s preliminary approval of the

Settlement and which will be made part of a court-enforceable Consent Decree upon the effective

date of the settlement:

a. Haynes shall pay overtime premiums to any Plaintiff, Class Member, or future hourlyemployee who works more than eight hours in any designated workday (suchdesignation to be made in advance in writing to the affected employee(s)) or if noworkday is so designated, in any 24-hour period.

b. Haynes shall review all time and payroll records at least once at the end of each payperiod, either manually or through re-programming of its timekeeping and payrollsoftware, and shall pay an additional one hour’s wages to each Plaintiff, Class Member,or future hourly employee for each day during that pay period on which the timerecords (as may be adjusted in accordance with existing policy, upon approval of theaffected employee and a representative of Haynes) reflect that such Plaintiff, ClassMember, or future hourly employee was not provided all full and timely 30-minutemeal periods as required by California law, and for each day during that pay period onwhich the time records reflect that such Plaintiff, Class Member, or future hourlyemployee was not provided all full and timely 10-minute paid rest breaks as required byCalifornia law. For purposes of this paragraph, a first meal break is required for allshifts longer than five hours and is not timely if the records reflect that it began morethan five hours after the beginning of a shift, and a second meal break is required for allshifts longer than 10 hours and is not timely if the records reflect that it began morethan 10 hours after the beginning of a shift. For purposes of this paragraph, a rest breakis not timely if records reflect that it began or ended within 15 or fewer minutes of thebeginning or end of a shift, work period, meal period, or another rest break. Forpurposes of this paragraph, an early or late meal period or rest break (including a mealperiod or rest break that is defined as not timely elsewhere in this paragraph) is deemedtimely if the Plaintiff, Class Member, or future hourly employee acknowledges inwriting prior to the close of the current pay period that he or she voluntarily requestedto take such break early or late.




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c. Haynes shall provide wage statements to Plaintiffs, Class Members, and future hourlyemployees that separately record regular hours and overtime hours each pay period, therate of pay, premium wages for missed, untimely, or short meal periods and rest breaks,and any deductions taken from that pay.

d. Haynes shall make available to each Plaintiff, Class Member, and future hourlyemployee a clean apron at the beginning of such employee’s shift. Apron use will be atthe employee’s option and the apron must be turned in at the end of the employee’sshift.

e. For five (5) years following final approval of the settlement, Haynes will provide areport documenting the implementation of and compliance with the injunctive reliefdescribed above to Plaintiffs’ counsel every six (6) months using the mutually agreed-upon form attached to this Agreement as Exhibit 4.

Id. ¶¶25-26.

Before the deadline for class members to object or opt out, plaintiffs’ counsel will file a

motion for statutory attorneys’ fees and expenses, with the total requested fees not to exceed

$30,000 and the total requested expenses not to exceed $10,000, both of which are far below the

actual fees and costs counsel have incurred. Id. ¶35; see Rubin Decl. ¶12 (class counsel’s total

lodestar through February 2017 was more than $2 million). Before the final approval hearing,

plaintiffs will also apply to the Court for an award of $1,500 to each of the three named plaintiffs.

Rubin Decl. Ex. A ¶36. These amounts reflect the time and effort these workers have expended on

behalf of the class, including by participating in factual investigation and case discussions with

counsel, providing declarations, appearing for their depositions, participating in mediations, and

assisting with other discovery. See Rubin Decl. ¶13.

The Settlement Agreement requires that Haynes provide the Claims Administrator with the

putative class list within 15 days after preliminary approval. Rubin Decl. Ex. A ¶16(b). The

Settlement Agreement provides that the contact information in the Putative Class list will be treated

as highly confidential under the stipulated protective order in this action, and states that the parties

will ask the Court to determine in its preliminary approval order whether to impose any other

limitation on class counsel’s use of that contact information. Id.

The Claims Administrator will mail the class notice to each class member within 10 days of

receiving the putative class list. Id. ¶16(d). This mailing will also include a claim form, which will

be required only from class members who were not on Haynes’ putative class list and/or for whom




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the Claims Administrator did not have a valid mailing address. Id. ¶16 (e)(vi). Other class

members will not need to file a claim form. The class notice will state each recipient’s estimated

settlement amount, the deadline for submitting a claim form if necessary, and the deadlines and

procedures for opting out of or objecting to the Settlement Agreement. Id. ¶¶1(i), 16(e). Those

few class members who must submit claim forms will have 75 calendar days to do so. Id. Late

claim forms will be accepted if the class member establishes good cause. Id. ¶17. Class members

will have 75 days from the postmarked date of notice to opt out or object. Id. ¶¶18-19. All

settlement documents will be translated into Spanish, and both English and Spanish versions will

be mailed to class members. Id. ¶1(i).

Upon the Settlement Agreement’s effective date, only those class members who have

received notice of the settlement and who have not opted out will be deemed to have released their

claims against Haynes and related entities (but not against the remaining McDonald’s defendants

or any of their related entities) that were or could have been asserted in the First Amended

Complaint based upon the facts alleged and that arose on or before March 31, 2016 (the end of the

settlement class period). Id. ¶¶1(j), 1(x), 1(z), 1(bb), 43. Class members who do not receive notice

of the settlement before the opt-out deadline will not release any claims. Id. ¶1(bb). If no

objections are filed, the effective date will be the date of final approval. Id. ¶1(n). If objections are

filed and overruled, the effective date will be 30 days after the Court enters an order of final

approval. Id.

The Claims Administrator will distribute the monies from the qualified settlement fund to

class members within 30 days after the effective date. Id. ¶32. Any amounts remaining uncashed

90 days after the distribution date will be redistributed among all other class members in proportion

to their initial settlement shares. Id. ¶¶33, 42. If the total amount of remaining funds after

redistributions does not exceed $10,000, these funds will be donated as cy pres to Bay Area Legal

Aid. Id. ¶42.

IV. PROVISIONAL CLASS CERTIFICATION

When considering a request for certification of a settlement class, the Court must first

determine “whether the proposed settlement class satisfies the requirements of Rule 23(a) of the




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Federal Rules of Civil Procedure applicable to all class actions, namely: (1) numerosity, (2)

commonality, (3) typicality, and (4) adequacy of representation.” Hanlon, 150 F.3d at 1019.

“[T]he parties seeking class certification must also show that the action is maintainable under Fed.

R. Civ. P. 23(b)(1), (2) or (3).” Id. at 1022. Plaintiffs seek provisional certification of the

following class:

[A]ll individuals currently or formerly employed as crew, crew trainers, or maintenanceworkers paid on an hourly basis (“crew members”) at one or more of Haynes’, 4ATXPartnership’s, or BJGO Partnership’s eight franchised McDonald’s restaurants inCalifornia (the “Restaurants”), at any time within the period beginning on March 12,2010 and ending on March 31, 2016.

Rubin Decl. Ex. A ¶1(h).3 Plaintiffs have previously explained in detail why class certification is

appropriate for the merits claims in this case. See Dkt. 231-1 (motion for class certification against

McDonald’s). The Court denied class certification as to claims against McDonald’s on grounds

that are entirely inapplicable to Haynes. See Dkt. 265 (denying certification of claims based on

“ostensible agency” theory). For the reasons summarized below, provisional certification of the

settlement class is appropriate.

a. The Proposed Class Meets the Requirements of Rule 23(a)

i. Rule 23(a)(1): Numerosity. There are more than 1,200 current and former

crew member employees of Haynes that fall within the class definition. See Dkt. 231-1 at 4; Dkt.

231-2 ¶15; Dkt. 223 ¶3. Numerosity is therefore satisfied. See Jordan v. Cty. of Los Angeles, 669

F.2d 1311, 1319-20 (9th Cir. 1982), rev’d on other grounds, 713 F.2d 503 (9th Cir. 1983).

ii. Rule 23(a)(2): Commonality. Commonality is satisfied as long as a single

common issue exists. See Cervantez v. Celestica Corp., 253 F.R.D. 562, 570 (C.D. Cal. 2008);

Haley v. Medtronic, Inc., 169 F.R.D. 643, 648 (C.D. Cal. 1996). Plaintiffs’ claims against Haynes

present several common questions capable of classwide resolution. These include: (1) whether

Haynes’ compensation system for crew members’ wages and overtime payments was legal and

sufficient to timely pay all crew members for time worked; (2) whether Haynes had a classwide

practice of failing to permit crew members to take all legally mandated meal and rest breaks or to

___________________________________3 4ATX and BJGO Partnership are Haynes family entities that have operated certain of the

eight Haynes restaurants from September 2011 to the present. See Rubin Decl. Ex. A ¶¶1(a), 1(d).




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provide premium pay in lieu of a break; (3) whether Haynes failed to provide crew members with

accurate, itemized wage statements, as required by the California Labor Code; (4) whether Haynes

failed to maintain classwide records as required by the California Labor Code and IWC Wage

Orders; (5) whether Haynes willfully failed to timely pay full wages to class members who quit or

were discharged, as required by the California Labor Code; and (6) whether Haynes’ classwide

practice of failing to maintain crew member uniforms or to reimburse crew members for the

necessary expenses of maintaining their own uniforms violated the California Labor Code and the

IWC Wage Orders. Each of these issues is independently sufficient to establish commonality. See

Dkt. 231-1 at 6-7; Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir. 2013)

(commonality “does not . . . mean that every question of law or fact must be common to the class;

all that Rule 23(a)(2) requires is a single significant question of law or fact.”) (emphasis in

original) (citations and internal quotation marks omitted); McClellan v. SFN Group, Inc., No. C 10-

5972, 2012 WL 2367905, at *4 (N.D. Cal. June 21, 2012).

iii. Rule 23(a)(3): Typicality. Plaintiffs’ claims “are typical of the claims or

defenses of the class.” Fed. R. Civ. P. 23(a)(3). Typicality is met when “[p]laintiffs’ situations

share a common issue of law or fact, and are sufficiently parallel to insure a vigorous and full

presentation of all claims for relief.” In re Live Concert Antitrust Litig., 247 F.R.D. 98, 117 (C.D.

Cal. 2007) (internal quotation marks and citation omitted); see Meyer v. Portfolio Recovery

Assocs., LLC, 707 F.3d 1036, 1042 (9th Cir. 2012). All named plaintiffs and class members are or

were low-wage, hourly, non-exempt workers in one or more of Haynes’ franchised McDonald’s

restaurants. All of the class claims arise out of the same alleged events and conduct and relate to

Haynes’ policies and practices of inadequately compensating its workers. See Dkt. 231-1 at 7.

iv. Rule 23(a)(4): Adequacy of Representation. The named plaintiffs and their

counsel will fairly and adequately protect the interests of the class. See Fed. R. Civ. P. 23(a)(4);

Dkt. 231-1 at 7-8. Adequacy is met where the class representatives share interests with and suffer

the same injuries as unnamed class members and will vigorously prosecute the interests of the class

through qualified counsel. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-26 (1997). This

requirement is satisfied where, as here, the proposed representatives have no conflicts of interest




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(see Decl. of Guadalupe Salazar ISO Mot. for Class Certification (Dkt. 209) ¶¶11-13; Decl. of

Genoveva Lopez ISO Mot. for Class Certification (Dkt. 210) ¶¶10-12; Decl. of Judith Zarate ISO

Mot. for Class Certification (Dkt. 211) ¶¶9-11), and are represented by qualified counsel (see

Rubin Decl. ¶14; Decl. of Michael Rubin ISO Mot. for Class Certification (Dkt. 207) ¶¶20-27;

Decl. of Joseph Sellers ISO Mot. for Class Certification (Dkt. 208) ¶¶1-7). See Hanlon, 150 F.3d

at 1020-21.

b. The Proposed Class Meets the Requirements of Rule 23(b)(2)

Rule 23(b)(2) permits certification of a class if “the party opposing the class has acted or

refused to act on grounds that apply generally to the class, so that final injunctive relief or

corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.

23(b)(2). Rule 23(b)(2) applies “when a single injunction or declaratory judgment would provide

relief to each member of the class.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011); see

also Johnson v. Shaffer, et al., No. 2:12-cv-1059, 2013 WL 5934156, at *13 (E.D. Cal. Nov. 1,

2013). This inquiry is “encompassed in the commonality requirement of Rule 23(a).” Diaz v.

Hillsborough Cnty. Hosp. Auth., 165 F.R.D. 689, 695 (M.D. Fla.1996); accord McManus v.

Fleetwood Enter., Inc., 320 F.3d 545, 552 (5th Cir. 2003) (“Rule 23(b)(2)’s requirement that a

defendant have acted consistently towards the class is plainly more permissive than 23(b)(3)’s

requirement that questions common to the class predominate over individual issues.”).4

Plaintiffs have sought – and a key portion of their Settlement Agreement provides –

injunctive relief that, to the extent of Haynes’ authority, will help alleviate the harms to the class

resulting from defendants’ systematic and improper policies and practices concerning wage

calculations, meal and rest breaks, overtime, record-keeping, provision of accurate wage

statements, and uniform maintenance. See Rubin Decl. Ex. A ¶26. The policies and practices at

issue “constitute shared grounds” for all individuals in the class, because they deprived all class

___________________________________4 In cases where plaintiffs seek certification for both injunctive and monetary purposes,

courts permit plaintiffs to move separately under Rule 23(b)(2) and (b)(3). See Wang v. ChineseDaily News, Inc., 737 F.3d 538, 544 (9th Cir. 2013) (remanding for separate determinations underRules 23(b)(3) and (b)(2)); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 987-88 (9th Cir. 2011)(same); see also Vallabhapurapu v. Burger King Corp., No. C 11-00667 WHA, 2012 WL2568183, at *4-5 (N.D. Cal. July 2, 2012) (certifying class under both Rule 23(b)(2) and (b)(3)).




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members of the wages and employment information owed to them under the law. See Parsons v.

Ryan, 754 F.3d 657, 688 (9th Cir. 2014) (Rule 23(b)(2)’s “requirements are unquestionably

satisfied when members of a putative class seek uniform injunctive or declaratory relief from

policies or practices that are generally applicable to the class as a whole.”). The Court should

therefore certify plaintiffs’ Rule 23(b)(2) class for settlement.

c. The Proposed Class Meets the Requirements of Rule 23(b)(3)

“To qualify for certification under [Rule 23(b)(3)], a class must satisfy two conditions in

addition to the Rule 23(a) prerequisites: common questions must ‘predominate over any questions

affecting only individual members,’ and class resolution must be ‘superior to other available

methods for the fair and efficient adjudication of the controversy.’” Hanlon, 150 F.3d at 1022

(quoting Fed. R. Civ. P. 23(b)(3)). Those requirements are satisfied as well.

i. Common Questions Predominate Over Any Individual Issues

The predominance inquiry “tests whether proposed classes are sufficiently cohesive to

warrant adjudication by representation” and focuses on the “relationship between the common and

individual issues.” Hanlon, 150 F.3d at 1022 (quotation marks and citation omitted). “When

common questions present a significant aspect of the case and they can be resolved for all members

of the class in a single adjudication, there is clear justification for handling the dispute on a

representative rather than on an individual basis.” Id. (quotation marks and citation omitted).5

“When the claim is that an employer’s policy and practices violated labor law, the key

question for class certification is whether there is a consistent employer practice that could be a

basis for consistent liability.” Kamar v. Radio Shack Corp., 254 F.R.D. 387, 399 (C.D. Cal. 2008).

Classes are often certified where “an employer’s uniform policy . . . is uniformly implemented,

since in that situation predominance is easily established.” Id. Strict uniformity is not required to

___________________________________5 For purposes of provisional certification, plaintiffs need establish only that some of their

claims can be adjudicated on a classwide basis; provisional certification of every claim slated forsettlement is not necessary, because the scope of the parties’ release can extend beyond the scopeof the specific claims at issue. See, e.g., Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1287-88(9th Cir. 1992) (allowing classwide release that included unpleaded claims because they arose“from the same common nucleus of operative fact”); cf. Staton v. Boeing Co, 327 F.3d 938, 952(9th Cir. 2003) (“[It] is the settlement taken as a whole, rather than the individual component parts,that must be examined for overall fairness. . . .”) (quoting Hanlon, 150 F.3d at 1026).




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satisfy the “predominance” prong, however. “[T]he existence of certain individualized or deviating

facts will not preclude certification if most class members were subjected to a company policy in a

way that gives rise to consistent liability or lack thereof.” Id.

Common questions relate to Haynes’ policies and practices concerning overtime calculation

and compensation, underpayment of time worked as a result of errors in transferring records to

payroll, failure to pay premium wages for missed meal and rest breaks, record-keeping, wage

statements, and uniform maintenance. See Dkt. 231-1 at 13-23 (explaining predominance of each

of plaintiffs’ merits claims in detail). Haynes’ policies were applied and practiced consistently

throughout the Haynes stores. Id. at 2-3 (citing Haynes-Watts Dep., Lewis Dep., & Breshears

Decl.). Therefore, the proposed settlement class satisfies the requirement that common issues of

fact and law predominate.

ii. Class Treatment is Superior to Individualized Actions

Rule 23(b)(3)’s second requirement is that “resolution of the issues on a classwide basis is

superior to other available methods for the fair and efficient adjudication of the controversy.”

Tierno v. Rite Aid Corp., No. C 05-02520, 2006 WL 2535056, at *11 (N.D. Cal. Aug. 31, 2006).

This requirement is also satisfied. See Dkt. 231-1 at 23-24 (explaining why class resolution of

merits claims here is superior to other methods).

In considering whether a class action is superior, the Court must focus on whether

“efficiency and economy” would be advanced by class treatment. Zinser v. Accufix Research Inst.

Inc., 253 F.3d. 1180, 1190 (9th Cir. 2001), amended by 273 F.3d 1266 (9th Cir. 2001) (internal

quotations omitted). Here, concentrating the adjudication of claims into a single proceeding is

highly desirable. The alternative would be an influx of individual claims for small monetary

amounts by individuals who most likely could not afford to pursue them or who lack sufficient

knowledge of their rights to pursue them. Having separate but nearly identical lawsuits filed by

more than 1,200 individuals would be wasteful and inefficient for the parties and the judiciary

alike. See Zinser, 253 F.3d at 1190-91. The high cost of litigating these cases would dwarf any

potential recovery for any individual worker, and most of those aggrieved individuals would likely

forgo vindicating their rights if they were forced to proceed separately. Cf. Barbosa v. Cargill




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Meat Solutions Corp., No. 1:11-cv-00275-SKO, 2013 WL 3340939, at *11 (E.D. Cal. Jul. 2, 2013)

(“The potential recovery by any individual plaintiff is relatively small and thus individual members

of the class would likely be unwilling or unable to institute separate suits.”). Accordingly,

certification will promote economy, expediency, and efficiency, and is superior to any other

method of resolving this matter.

V. THE SETTLEMENT SHOULD BE PRELIMINARILY APPROVED

The Court’s review of a class action settlement requires two steps. See Nat’l Rural

Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 525 (C.D. Cal. 2004). First, the Court must

determine whether to grant preliminary approval, provisionally certify the class, and order notice to

the class to inform them of their rights and of their opportunity to be heard at the Fairness Hearing,

when “arguments and evidence may be presented in support of and in opposition to the settlement.”

McNamara v. Bre-X Minerals Ltd., 214 F.R.D. 424, 426 (E.D. Tex. 2002); see In re Online DVD-

Rental Antitrust Litig., 779 F.3d 934, 945-47 (9th Cir. 2015); Nat’l Rural Telecomms. Coop., 221

F.R.D. at 525. Second, the Court must hold a fairness hearing to assess if the settlement is “fair,

reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). A “strong judicial policy . . . favors

settlements, particularly where complex class action litigation is concerned.” Class Plaintiffs, 955

F.2d at 1276 (citations omitted).

At the preliminary stage, a settlement will be found presumptively fair if it “appears to be

the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not

improperly grant preferential treatment to class representatives or segments of the class, and falls

within the range of possible approval.” In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078,

1079 (N.D. Cal. 2007) (quoting Schwartz v. Dallas Cowboys Football Club, Ltd., 157 F. Supp. 2d

561, 570 n.12 (E.D. Pa. 2001)); accord Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 454-

55 (E.D. Cal. 2013).

The parties negotiated the present settlement in good faith and at arm’s length. See Rubin

Decl. ¶¶4-5, 8. Substantial discovery, investigation, and research over the roughly two years of

litigation that preceded the settlement enabled experienced class-action counsel to assess the

strengths and weaknesses of plaintiffs’ claims and the benefits of the settlement. Id. ¶7. Moreover,




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as part of the settlement negotiations, plaintiffs’ counsel retained a forensic accounting expert to

assist in reviewing Haynes’ financial condition. Id. ¶9. The Settlement Agreement makes clear

that “[a] material factor affecting the amount of the Gross Fund Amount is Haynes’ financial

condition as set forth in documents reviewed by Plaintiffs, including three years of tax returns,

unaudited profit-and-loss statements, and other materials.” Rubin Decl. Ex. A ¶5. With the

expert’s assistance, plaintiffs’ counsel concluded that the Haynes’ financial documents

“demonstrate[d] the limitations of Haynes’ ability to pay a greater settlement amount.” Id. ¶1(l).

Plaintiff’s counsel thus concluded that a sizable judgment against Haynes in this matter might not

be recoverable and might lead to the closure of the restaurants where plaintiffs and other putative

class members worked, to the serious detriment of those class members. Rubin Decl. ¶9.6

Although Haynes’ total potential exposure in this matter significantly exceeds $235,000,

plaintiffs’ counsel believe that the settlement is fair, reasonable, adequate, and in the best interest

of the class members in light of all known facts and circumstances, including the risk of significant

delay, the possible defenses to this litigation, and most prominently Haynes’ financial condition.

Rubin Decl. ¶¶8-10. The settlement will provide recoveries that are significant to the class

members (an average of over $150, and likely more, per low-income class member) and will be

allocated in a manner that roughly approximates the proportional value of their individual claims.

Id. ¶10. The settlement will also provide critical injunctive relief to class members and future

employees that will materially improve working conditions for these individuals, while avoiding

the possibility that a sizable judgment against Haynes might lead to the restaurants’ closure. Id.

¶¶9-10. The settlement also preserves plaintiffs’ right to appeal this Court’s orders granting

summary judgment to the McDonald’s Defendants. Plaintiffs intend to continue to seek relief

against McDonald’s by pursuing such an appeal. Id. ¶9 n.1. Given all the relevant facts and

circumstances, the proposed settlement readily satisfies the standards for preliminary approval.

Under Rule 23(e), the Court upon preliminary approval must “direct notice in a reasonable

___________________________________6 As part of the settlement, Haynes agreed that it would not object to an in camera

submission to the Court of the confidential financial documents reflecting Haynes’ financialcondition upon which plaintiffs relied in reaching the settlement, should the Court request such asubmission. See Rubin Decl. Ex A. ¶6.




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manner to all class members who would be bound” by the proposed settlement. That notice must

be the “best notice that is practicable under the circumstances.” Fed. R. Civ. P. 23(c)(2)(B).

Notice is satisfactory “if it generally describes the terms of the settlement in sufficient detail to

alert those with adverse viewpoints to investigate and to come forward and be heard” and provides

notice “that the court will exclude from the class any member who requests exclusion.” Churchill

Village, LLC v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004); In re Online DVD-Rental Antitrust

Litig., 779 F.3d at 945-47; see also Fed. R. Civ. P. 23(c)(2)(B)(v). Such notice is reasonable if

mailed to each member of a settlement class “who can be identified through reasonable effort.”

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 (1974).

Here, the form and manner of the class notices and claims forms have been negotiated and

agreed upon by all counsel. They will be translated into Spanish and mailed in both English and

Spanish. The class notices will inform class members of, among other things: (1) the nature of this

action and the essential terms of the settlement; (2) the allocation of the settlement funds, including

an estimate of each class member’s settlement share, and the requests for class representative

service payments and for attorneys’ fees and expenses; (3) how to participate, opt out, or object to

the settlement; (4) this Court’s procedures for final approval; and (5) how to obtain additional

information. The class notices are written clearly. The notices encourage class members to contact

plaintiffs’ counsel with any questions and designate a Spanish-speaking contact in plaintiffs’

counsels’ offices for this purpose as well. See Newberg on Class Actions §8.17 (5th ed. 2013);

Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 423 (6th Cir. 2012).

The proposed delivery method and deadlines are also reasonable. Within 10 days of

receiving the putative class list from Haynes, the Claims Administrator will send notices to class

members by First-Class mail at the addresses provided on this list. See Rubin Decl. Ex. A ¶16(d).

If a class member’s address has changed and no forwarding address is available, the Claims

Administrator will use electronic search procedures to obtain a current address. Id. ¶16(g). Class

members will have 75 days after the notice is mailed to consider the proposed settlement before the

deadline for filing claim forms (where necessary) or for objecting to or opting out of the settlement.

Id. ¶¶17-19. The parties believe that these time periods are fair and reasonable under the




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circumstances, since it may be difficult to track down many prospective class members.

Finally, individuals who do not receive notice of the settlement before the opt-out deadline

will not release any claims. Id. ¶1(bb). The proposed method for providing notice, coupled with

this protection for class members who do not receive notice, easily satisfies the requirement that

notice be directed to the class in a reasonable manner.

VI. PUTATIVE CLASS LIST

Under the Settlement Agreement, Haynes will provide a putative class list to the claims

administrator following preliminary approval of the settlement, and the claims administrator will

provide a copy of that list to class counsel after deleting social security numbers. Id. ¶16(b). The

agreement states that class member contact information on the putative class list provided to class

counsel will be treated as highly confidential under the stipulated protective order in this action, but

the Settlement Agreement does not impose any restriction on the topics that class counsel may

discuss with class members. Id.; see Dkt. 40 (Protective Order) ¶7.3.

The Settlement Agreement states that “[t]he parties will ask the Court to determine in its

Order of Preliminary Approval whether to impose any other limitation on Class Counsel’s use of

the contact information in the Putative Class List.” Rubin Decl. Ex. A ¶16(b) (emphasis added).

Plaintiffs request no other limitations. Haynes requests that class counsel be prohibited from using

the putative class list to communicate with current employee class members regarding non-

settlement administration topics. See id. Absent a court ruling imposing additional limitations, the

Settlement Agreement will stand as written.

In pertinent part, the Settlement Agreement states:

Haynes asserts that Class Counsel should be permitted to use information from thePutative Class List to contact Class Members who are current Haynes employeesregarding only administration of this settlement. Plaintiffs assert that no furtherlimitation beyond the Highly Confidential designation under the Protective Orderis appropriate, that imposing any such limitation would inappropriately hamperClass Counsel’s role and duties to class members, and that the Court has alreadyresolved this issue by ordering in the February 25, 2016 Discovery Order (DocketNo. 76) that Haynes produce to plaintiffs a full class list with contact informationwithout imposing any limitations on use of that information beyond theconfidentiality designations permitted by the Protective Order.

Id. (emphasis added). Plaintiffs’ position is that the Court should not impose any new limit on




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class counsel’s ability to communicate with class members that is not among the terms the parties

already agreed to in the Settlement Agreement. The Supreme Court has made clear that even in the

pre-certification context, a district court may not limit communications between plaintiffs’ counsel

and “potential class members” without “a clear record and specific findings” of “particular abuses”

justifying such a limitation. Gulf Oil Co. v. Bernard, 452 U.S. 89, 101-102 (1981) (emphases

added). Even then, any such order must “limit[] speech as little as possible, consistent with the

rights of the parties under the circumstances.” Id. There is not record here of any actual or

potential “abuses” that could justify limiting class counsel’s communications with class members,

even before class certification.

Moreover, upon preliminary approval and certification of the settlement class, all

individuals on the putative class list, including current Haynes employees, will become clients of

class counsel. See Parks v. Eastwood Ins. Servs., Inc., 235 F. Supp. 2d 1082, 1083 (C.D. Cal.

2002). While there would be no grounds to limit counsel’s communications with these individuals

before certification, there is even less justification for limiting the topics that class counsel may

discuss with these individuals after certification, when they will be counsel’s clients. See Domingo

v. New England Fish Co., 727 F.2d 1429, 1441 (9th Cir. 1984), modified, 742 F.2d 520 (9th Cir.

1984) (“If anything, the policies weighing in favor of communications restrictions after the class

has been certified are much less compelling than before certification.”). Imposing restrictions on

the topics class counsel may discuss with these clients would seriously infringe on class counsel’s

ability to ethically represent these clients and provide them full information and advice. Cf.

California Rules of Professional Conduct, Rule 1-500 (counsel cannot agree to restrict counsel’s

right to practice law), 3-110 (counsel must act competently), 3-500 (counsel will keep client

reasonably informed about significant developments).

Further, the Court has already effectively resolved this issue by ordering in the February 25,

2016 Discovery Order (Dkt. 76) that Haynes must produce to plaintiffs a full class list with class

member contact information, without imposing any limitations on how plaintiffs’ counsel could

use that information to communicate with class members. Haynes agreed to comply with the

Discovery Order and represents in the Settlement Agreement that it has so complied. Rubin Decl.




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Ex. A ¶16(b). This means Haynes has already produced a class list with contact information to

plaintiffs’ counsel pursuant to this Court’s order, without any restrictions on the topics plaintiffs’

counsel’s may discuss with prospective class members. The Settlement Agreement does not

require any such restrictions. There thus is no justification for imposing any new restriction on

topics class counsel may discuss with current employee class members now. However, if the Court

orders such limitations, plaintiffs will accept them, pursuant to plaintiffs’ agreement with Haynes.

VII. PROPOSED SCHEDULING ORDER

The following schedule sets forth a proposed sequence for the relevant dates and deadlines

assuming the Court preliminarily approves the Settlement.

Event Time Limits According to Agreement

Deadline to provide class list15 business days after Preliminary ApprovalOrder

Deadline to mail class notice 10 business days after receiving class list

Deadline for filing fees motionAt least 28 days before opt-out deadline (within47 days after class notice is mailed)

Deadline for filing requests not toparticipate, objections, and claim forms

75 days after the class notice is mailed

Deadline for filing motion for namedplaintiffs’ service awards and motion forfinal approval

28 days prior to Final Approval Hearing

Final Approval HearingTo be set by the Court, but no sooner than 120days after the Preliminary Approval Order

VIII. CONCLUSION

For the foregoing reasons, plaintiffs respectfully request that this Court: (1) provisionally

certify the proposed settlement class; (2) appoint the named plaintiffs as the Class Representatives;

(3) appoint plaintiffs’ counsel as class counsel; (4) grant preliminary approval to the class

settlement between plaintiffs and Haynes; (5) approve the injunctive relief agreed to in this

settlement; (6) approve the distribution of the proposed class notices and claims forms; (7) appoint

RG/2 Claims Administration LLC as the Claims Administrator; and (8) schedule a final approval

hearing. A proposed order is submitted herewith.

Date: March 29, 2017 Respectfully submitted,

By: s/Michael RubinMichael Rubin




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MICHAEL RUBINBARBARA J. CHISHOLMP. CASEY PITTSMATTHEW J. MURRAYRAPHAEL N. RAJENDRAAltshuler Berzon LLP

JOSEPH M. SELLERS (pro hac vice)MIRIAM R. NEMETH (pro hac vice)Cohen Milstein Sellers & Toll, PLLC



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pro hac vice › wp-content › uploads › ...RAPHAEL N. RAJENDRA Altshuler Berzon LLP JOSEPH M. SELLERS (pro hac vice) MIRIAM R. NEMETH (pro hac vice) Cohen Milstein Sellers & Toll,