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Case 2:11-cv-05849-ODW-PLA Document 27 Filed 02/06/12 Page 9 of 21 Page ID #:387Id.SWS propounded, and Plaintiff responded to, 38 documentIdocuments.2requests. 1d. Plaintiff produced over 430 pages of documents. Id.The parties also agreed to send a privacy notice to all putative class mem35informing them of this action. Khorrami Decl. J[6. After providing them anopportunity to opt out of having their contact information provided to Plaintiff6counsel, Plaintiff received the names and mailing addresses of putative class7members who chose not to keep their contact information private.8subsequently interviewed more than 70 Class Members and obtained signed9declarations from 33 Class Members. .Id4Id. Plaintiffl0SWS took Gonzalez's deposition on October 10,2011. On October 19 andll20,2011, Plaintiff took the depositions of SWS's corporate designees pursuant tot2Federal Rule ofCivil Procedure 30(bX6). Khorrami Decl. lf 7.l3Additionally, in advance of the mediation, Defendant informally producedt4information regarding the average rate of pay for Merchandisers during the Classl5Period, which allowed Class Counsel to create adamages model. Id.at\8.l6D.t7Following the filing of the Complaint, the parties agreed to a privateSettlement Nesotiationsl8mediation session with retired Supreme Court Justice Edward A. Panelli, whicht9took place on October 27,2011 in San Francisco, California. Khorrami Decl.20Through an intensive settlement negotiation process led by Justice Panelli, the2tparties reached an agreement regarding the terms of a class-wide settlement, which22they now present to this Court for approval. Id.I13.23E.24On October 28,2011, the parties filed a stipulation to conditionally certiffStinulated Conditional Certificationthe following settlement class:25oersons emploved bv defendant Southern Wine & Spirits ofAmërica. Inc. at Merchándisers. including, but not limitèd to, theoõsiiiond õf Chain Territory Manaser, Chãin Merchandiser, BroadMãrkét lerritory Manageriand Brõad Market MerchandiseÎ, in theAll262728PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OFCLASS ACTION SETTLEMENTKP6. Klsl()Rlr ñtl lt)llÀl{l)ñÀl}ll{¡r¡

Case 2:11-cv-05849-ODW-PLA Document 27 Filed 02/06/12 Page 10 of 21 Page ID #:388State of California from ly'ray 26,2007 through the date of preliminaryapproval.I2 JOn October 31,F.51.7l0llThe parties agree to settle this matter for a total settlement fund 1,750,000, from which the following paymentswillofbe made: (a) payments toClass Members; (b) Plaintiffls attorneys' fees and costs, subject to court approval;(c) the service payment to the named plaintiff, subject to court approval; and (d)claims administration costs. Settlement AgreementT1[3.7.1,3.10.1,3'10'2,3'11'l't2Assuming court approval, the entire 1,750,000 settlement fund will be paid withl3none of it reverting to SV/S.2.l4tAll class Participating Claimants will be entitled to a portion of the-which under the prescribed distribution formulal5Net Settlement Considerationt6willt7l8the number of Qualiûing Work Days the Class Member worked during the Classperiod. Settlement Agreement 1.33. Current Employee Class Members were notr9required to submit a Claim Form in order to receive a settlement award. Id.203.4.7.2lUpon application to and approval by the Court, Plaintiff Gonzalez wilreceive a service payment of 5,000, paid from the settlement fund for his efforts1')232425262728Klln KlTerms of the Proposed SettlementThe key terms of the Settlement Agreement are as follows:69certifyingthe aforementioned class for settlement purposes only.482}ll,this Court entered an order conditionallyl()l\lì ñll lt)ll;\lìl)ñÀßlRbe approximately 1,281,800. Settlement awards were calculated based on!fatl4.in litigating this action on behalf of the Class. Id.atï3.10.2.Anv unclaimed funds resulting from the failure of a Settlement Class Member to cash hisCurrentJut¿";;;t;h;;Ë ;ithir i-90 dáís from the date of mailing, the decisioltþe.olq?va ,i(u.rtEmployee Class MemË;at SWS'sdivided,beshallClaim Formiliãi;í; õË iriilË; i; rr6*it a valid and timely-cy pfesA.qeric 11plyment:aasãi;"I*ri;, ilæ;iiñé øiio*ing orgjrnizations.911. .,So.i.ty, Thurgooî Marshall Ç9!l-eg9 {u¡d, Leukemia.& Lymphoma Socrety, Amerrcan1 .31,3.7 .3,Diaberes Association, àü¿-ötr¡i¿-iãñ;s ivtiiu"le Network. Sêttlèment Agreement TTI3.8.1.4PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OFCLASS ACTION SETTLEMENT

Case 2:11-cv-05849-ODW-PLA Document 27 Filed 02/06/12 Page 11 of 21 Page ID #:3895.IUpon application to and approval by the Court, Class Counsel will2receive attorneys' fees in the amount of 437,500, which constitutes25o/o of theJTotal Settlement Fund, and costs in an amount not to exceed 10,000. Id. af l43.10.1.26.5The costs of claims administration, estimated to be approximately15,700, are to be paid from the settlement fund. See id. at tf 3.1 I .1 ; Bui Decl. tf6 711.I III.CLASS NOTICE HAS BEEN EFFECTUATED AND COMPORTS9\ryITH RULE 23 AND DUE PROCESSl0Before final approval of a class action can issue, notice of the settlementumust be provided to the class. Fed. R. Civ. P. 23(e)(1). Rule 23 requires the classt2receive "the best notice practicable under the circumstances, including individuall3notice to all members who can be identifred through reasonable effort." Fed. R.t4Civ. P. 23(c)(2)(B). Notice to the class must be "reasonably calculated under alll5the circumstances, to apprise interested parties of the pendency of the action andt6afford them an opportunity to present their objections." Mullane v. Centralt7Hanover Bankl8596 F.Supp.2d 1323,1327 (C.D. CaL2009). In the Court's November 23,2011t9Order Granting Preliminary Approval of Class Action Settlement, this Court found20the proposed notice plan was the best notice practicable under the circumstances.2l(Doc. No. 25.)&Trust Co.,339 U.S. 306, 314 (1950); Saulic v. Symantec Corp.,22The notice plan, as approved by the Court, has been fully implemented by23the Claims Administrator. The Claims Administrator mailed, by first class mail,24the court-approved notice to the last known addresses of the Class Members. Bui25Decl.fl5.Of the 1,310 Class Members, 722were current employees as of the date2627282Plaintiff s motion foran award of attornevs' fees and costs to Class Counsel and a servicepayment to Plaintiff is being filed concurrently with this motion for final approval.5Kl\ Ktt()tìt\PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OFCLASS ACTION SETTLEMENTñrtlul.lr\tU)ñÂtlilt¡r

Case 2:11-cv-05849-ODW-PLA Document 27 Filed 02/06/12 Page 12 of 21 Page ID #:390Iof preliminary approval and thus were not required to submit a claim form in order2to participate in the settlement. See Bui Decl. !f 6; Settlement Agreementn3.4.7.JOf the remaining 588 Former Employee Class Members,279 submitted validclaim forms. Bui Decl. !f 8. Fourteen Class Members submitted valid requests for4l9.5exclusion, including 12 Current Employee Class Members. Id. af6Accordingly, 989 employees, or7settlement. No Class Members objected to the settlement. Id. at fl75.5o/oof the Class Members, participated in the10.I IV. THE PROPOSED SETTLEMENT MERITS FINAL APPROVALPursuant to Federal Rule of Civil Procedure 23(e), "[t]he claims, issues, or9l0defenses of a certified class may be settled, voluntarily dismissed, or compromisedltonly with the court's approval." Fed. R. Civ. Proc. 23(e). In order to approve at2frnal settlement in a class action, the district court must find that the proposedsettlement is fundamentally fair, adequate, and reasonable. Fed. R. Civ. P.l3l523(e)(l)(c); Staton v, Boeing Co.,327 F. 938, 952 (gth Cir. 2003).Although the Court possesses'obroad discretion" in issuing a finall6determination that a proposed class action settlement is fair, "the court's intrusiont7upon what is otherwise a private consensual agreement negotiated between thel8parties to a lawsuit must be limited to the extent necessary to reach a reasonedt9judgment that the agreement is not the product of fraud or overreaching by, or20collusion between, the negotiating parties, and that the settlement, taken as awhole, is fair, reasonable and adequate to all concerned." Officers þr Justice142t222324252627v.Civit Serv, Comm'n, 688 F.2d 615, 625 (9th Cir. l9S2). The Ninth Circuit has"long deferred to the private consensual decision of the parties." Rodríguez v.Publ'g Corp.,563 F.3d 948,965 (9th Cir. 2009) (citing Hanlon v. ChryslerCorp.,150 F.3d l0l l, 1027 (grhCir. 1998)). In the end, "fslettlement is theWestoffspring of compromise; the question we address is not whether the final productcould be prettier, smarter or snazzier, but whether it is fair, adequate and free from28KP.ñ K¡lO¡{l\ lvtl l\)l.l Âl{l)ñi\llll{ r¡rPLAINTIFF'S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OFCLASS ACTION SETTLEMENT

Case 2:11-cv-05849-ODW-PLA Document 27 Filed 02/06/12 Page 13 of 21 Page ID #:391Icollusion." Hanlon, 150 F.3d at 1027 (gthCir. 1998). In consideringwhetherto2grant fìnal approval of a class action settlement, the Ninth Circuit has noted that3oothere4complex class action litigation is concerned." In re Synocor ERISA Litigatíon,5165F.3d 1095,is a strong judicial policy that favors settlements, particularly whereA.610ll(9th Cir.2008).The Proposed Settlement is Presumed to Be Fair8The Court should begin its analysis with a presumption that the proposedo'settlements that follow sufficientsettlement is fair and should be approved.9discovery and genuine arms-length negotiation are presumed7fair." In re Wirelesl0Facílities, Inc. Sec. Lítig. 11,253 F.R.D. 607, 610 (s.D. cal. 2008) (citationsllt2omitted); see qlso Harris v. Vector Mktg. Corp.,20ll U.S. Dist. LEXIS 48878,*24 (N.D. Cal. Apr. 29,201l)("An initial presumption of fairness is usuallyl3involved if the settlement is recommended by class counsel after arm's-lengtht4bargaining."). Courts find that "parties represented by competent counsel arel5better positioned than courts to produce a settlement that fairly reflects eachl6party's expected outcome in the litigation." Pacffic Enters. Sec. Litig., 47 F.3dl7373,377 (9th Cir. 1995).Here the parties negotiated the proposed settlement at arm's length withl8l9able and considerable assistance of retired California Supreme Court Justice20Edward A. Panelli, who has significant experience mediating complex civil cases2l,See22discovery have allowed Class Counsel23and hour class action litigation24Class's claims against SWS and the benefits of the proposed settlement. See2526Khorrami Decl. l[tT4-8, 15. During the course of the litigation, Class Counselreviewed over 49,000 pages of documents produced by SWS, (2) took the27depositions of SWS's corporate representatives, (3) produced Plaintiff GonzalezKhorrami Decl.1T13. Months of extensive factual investigation--andwho have significant experience in wageto assess the strengths and weaknesses of the28KPs, Ktt(xt\ Ml l\)l.tÂltDñÀllll{rr¡PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OFCLASS ACTION SETTLEMENT(l)

Case 2:11-cv-05849-ODW-PLA Document 27 Filed 02/06/12 Page 14 of 21 Page ID #:392I2for his deposition, (4) interviewed more than 70 Class Members, (5) obtaineddeclarations from 33 Class Members, and (6) prepared a damages model based4information obtained from SWS and Class Members. See Khorrami Decl. flT 5-8.Plaintiff and Class Counsel therefore had adequate information to gauge the val5of the Class's claims and assess whether SWS's proffered settlement amounts6adequately compensated Class Members.78As further set forth below, Class Counsel supports this settlement becauseit achieves an outstanding result for the Class, particularly in light of the risks of9continued litigation.3l0B.llt2r3l4l5Relevant Criteria Support Final Apg:oval of the ProposedSettlementIn deciding whether to grant final approval to a class action settlement,courts consider several factors, including: (l) the strength of the plaintiffls case;(2) the risk, complexity, and duration of further litigation; (3) the risk ofmaintaining class action status throughout the trial; (4) the amount offered int7settlement; (5) the extent of discovery and the stage of the proceedings; (6) theexperience and views of counsel; (7) the presence of a government participant;l8and (S) the reaction of the class members to the proposed settlement. Rodriguez,l9563 F.3d at 963; see also Stoton, 327202texhaustive and should be tailored to each case. Staton, 327 F.3d at959. Appliedto this case, the relevant criteria support final approval of the proposed22settlement.l62324252627t.F.3d at 959. The list of factors is notThe Settlement Offers Substantial Benefits When Balancedwith the Strength of Plaintiffls CaseThe benefits of settlement and plaintiff s chances of successare typicallyevaluated together. See, e.g., Vasquez v. Coast Valley Roofing, lnc.,266 F'R'D'482,488 (8.D. Cal.2010) ("An important consideration in judging the28PLAINTIFF'S NOTICE OF MOTION AND MOTION FOB FINAL APPROVAL OFCLASS ACTION SETTLEMENTKPe Kl l(ntR ñrll\)l.l lil).\ lllll¡'r

Case 2:11-cv-05849-ODW-PLA Document 27 Filed 02/06/12 Page 15 of 21 Page ID #:393plaintiffs'case on the meritsIreasonableness of a settlement is the strength of the2balanced against the amount offered in the settlement.") (internal quotation mark3omitted). On the one hand, Plaintiff has thoroughly investigated the factual and4legal bases for his claims and has developed substantial evidence tending to show5that SWS failed to compensate Plaintiff and the Class Members for all hours6worked, including overtime hours, and that SWS failed to provide proper meal7and rest breaks to Plaintiff and the Class Members. SV/S made clear, however,8that it intended to vigorously contest the merits of Plaintiffls claims, as well9namedasl0Plaintiff Gonzalez's ability to pursue this action on a class-wide basis.The proposed settlement takes this into consideration, as well as the difficulty inllestablishing damages (assuming Plaintiff is able to obtain certification andt2establish liability) given that Plaintiff s claims are premised on the theory thatl3Class Members did not accurately record their hours worked.l4Under the settlement, by contrast, nearly 1,000 Participating Claimantsl5avoid the risks and obstacles to recovery and receive substantial benefitsl6immediately. Within l5 days of the Effective Date of the settlement,l7Participating Claimants will receive a settlement award based on the total numbel8r9of Qualifying Work Days they worked during the Class Period. Accordingly, thisettlement,"guarantees a recovery that is not only substantial, but also certain20and immediate, eliminating the risk that class members would be left without any2trecovery . . . at all." Fulþrd v. Logitech, Inc., No. 2010 U.S. Dist. LEXIS 29042,at *8 (N.D. Cal. Mar. 5, 2010).222324z.The Risko Complexity and Duration of Further LitigationAnother factor in assessing the fairness of the proposed settlement is the25complexity, expense, and likely duration of this lawsuit had settlement not been26achieved. Officers27terminated before commencement of class certification, expert witness discovery,þrJustice,688 F.2d at 625. Because this litigation has28PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OFCLASS ACTION SETTLEMENTKlt\i Kll()lì¡ìrvtll\)l.l lìl)ñ llllì'rr

Case 2:11-cv-05849-ODW-PLA Document 27 Filed 02/06/12 Page 16 of 21 Page ID #:394Iand trial preparation, this factor also favors settlement. See Young v. Polo Retail,2LLC,2007 U.S. Dist. LEXIS 27269, at*9-10 (N.D. Cal. Mar. 28,2007).To date, Defendant has vigorously litigated the case and expressed everyJ5intention of continuing their spirited defense through class certification, trial andappeal. Khorrami Decl. 1T 10. Class Counsel has extensive experience in wage6and hour class action litigation and knows from experience that any case7involving wage and hour claims against a major corporate employer can, andoften does, lead to costly litigation that goes on for years. Id. atl 28. Absent4Il0settlement, the next steps in the case would include Plaintiff s motion for classcertification, a possible defense motion for summary judgment, the exchange ofllexpert discovery, trial preparation and then trial. Considerably more risk, effortt2and expense would be entailed in taking these steps.9l5Even if Plaintiff prevailed through class certifrcation, summary judgment,and trial, Defendant would almost certainly appeal, threatening a reversal of anyfavorable outcome and causing signifîcant delays in obtaining any relief for Classt6Memberst7l8at *8-9 (N.D.Cal. Nov. 26,2007) ("Additional consideration of increasedexpenses of fact and expert discovery and the inherent risks of proceeding tol9summary judgment, trial and appeal also support the settlement.); see also20*8Fulþrdv. Logítech, Inc.,2010 u.s. Dist. LEXIS 29042, at (N.D.Cal. Mar.5,13t4.SeeIn re Portal SoftwareSecs.Lítig.,2007 U.S. Dist. LEXIS 88886222010) (,,[L]iability and damages issues-and the outcome of any appeals thatwould likely follow if the Class were successful at trial-present substantial risks23and delays for Class member recovery.").2tAccordingly, this factor supports final approval of the settlement.2425262728PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OFCLASS ACTION SETTLEMENTKP.a KlrIl()¡{l{ Ml l\)l.l l{l)ñ llll{

Case 2:11-cv-05849-ODW-PLA Document 27 Filed 02/06/12 Page 17 of 21 Page ID #:3953.ILitigation2J4567The Risk of Maintaining Class Action Status throughoutAnother risk Plaintiff faces going forward is that this Court would declineto certiS this case as a class action. SWS has strenuously denied that classcertification is appropriate in this case. Khorrami Decl. f 10. In this action,Plaintiff asserted "off-the-clock" claims, which generally are difficult claims tocertify on a class-wide basis, particularly in light of the United States Supreme9Court's decision in \lal-Mart Stores, Inc. v. Dukes, l3 1 S. Ct. 2541 (U.S. 201 I ).Plaintiff also asserted meal and rest break claims, which present unsettledr0questions of law, as the applicable standard governing such claims, as well as thellt2propriety of certification of such claims, are currently pending before theCalifornia Supreme Court in Brinker Restaurant Corp. v. Superíor Court,165l3Cal. App. 4th25 (2008),l4l5further recognizes the difficulty in obtaining certification, establishing liabilityand proving damages, given that Plaintiff s claims are premised on the theoryt6Class Members did not accurately record their hours worked. See, e.g., Smíth v.t7Ceva Logistics tJ.S., Inc

GARY K. DAGLIAN. SBN 232717 DAGLIAN LAW GROUP, APLC 1000 N. Central Ave., Suite'210 Glendale. CA 91202 Teleohone: (S18) 545-7700 Facsìmile: (818) 545-3700 Attornevs for Plaintiff. NICOLAS GONZALÉ,Z UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA NICOLAS GONZALEZ. individual ly