feldman browne olivares - simpluris
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
Lee R. Feldman, Esq. (SBN 171628) [email protected] Alicia Olivares (SBN 181412) [email protected] FELDMAN BROWNE OLIVARES A Professional Corporation 12400 Wilshire Blvd., Suite 1100 Los Angeles, California 90025 Telephone: (310) 207-8500 Fax: (310) 207-8515 David M. deRubertis, Esq. (SBN 208709) [email protected] The deRubertis Law Firm, APC 4219 Coldwater Canyon Avenue Studio City, California 91604 Telephone: (818) 761-2322 Facsimile: (818) 761-2323 Attorneys for Plaintiffs DANESSA VALENTINE and JALISA MOORE
SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES – CENTRAL CIVIL WEST
DANESSA VALENTINE, an individual; JALISA MOORE, an individual; and all others similarly situated
Plaintiffs,
vs. COUNTY OF LOS ANGELES, a public entity; and DOES 1 through 100, inclusive,
Defendants.
CASE NO. BC602184 [Case Assigned for All Purposes to Hon. Carolyn B. Kuhl, Department 12] MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT DATE: February 13, 2020 TIME: 10:00 a.m. DEPT: 12 Action Filed: November 24, 2015 Trial Date: NONE (Filed concurrently with Notice of Motion and Motion; Supporting Declarations of Alicia Olivares; Lee R. Feldman and David deRubertis; Declarations of Jarrod Salinas, Danessa Valentine; and Jalisa Moore; [Proposed] Order; Proof of Service)
E-Served: Jan 21 2020 9:18AM PST Via Case Anywhere
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
TABLE OF CONTENTS
I. INTRODUCTION ............................................................................................... Page 1
II. SUMMARY OF LITIGATION ........................................................................ Page 2
A. Overview of the Litigation ............................................................................... Page 2
B. The Parties Settled At Mediation After Exhaustive Discovery
Was Conducted ................................................................................................ Page 3
C. Preliminary Approval ....................................................................................... Page 5
III. EVALUATION OF THE SETTLEMENT ....................................................... Page 6
A. Nature of Claims and Relief Sought ................................................................ Page 6
B. Composition of Settlement Class ..................................................................... Page 8
C. Benefits to the Unlawful Inquiry Class ............................................................ Page 8
D. Release by the Settlement Class ....................................................................... Page 9
E. The Notice and Settlement Administration Processes Were Completed
Pursuant to The Court’s Order ....................................................................... Page 10
F. Response to the Proposed Settlement – No Objections ................................. Page 11
G. Notice of Final Judgment ............................................................................... Page 12
IV. ARGUMENT ..................................................................................................... Page 12
A. Legal Standard for Granting Final Approval of the Class Action
Settlement ....................................................................................................... Page 12
B. The Settlement Is Fair, Adequate, and Reasonable ........................................ Page 13
1. The Settlement Is The Product of Arm’s Length and Informed
Negotiations ............................................................................................. Page 13
2. Sufficient Investigation and Discovery Have Been Conducted To Allow
Counsel and the Court to Evaluate the Fairness of the Settlement .......... Page 14
3. The Settlement Is Reasonable Given the Value of the Claims Asserted and the
Risks of Further Litigation ....................................................................... Page 15
4. The Experience and Views of Counsel Support Final Approval .............. Page 16
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
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5. The Overwhelmingly Positive Reaction of Class Members Favors Final
Approval ................................................................................................... Page 17
C. The Class Received Adequate Notice ............................................................ Page 17
V. ATTORNEY’S FEES AND COSTS ................................................................ Page 18
VI. INCENTIVE PAYMENTS AND ADMINISTRATION COSTS .................. Page 20
VII. FINAL JUDGMENT COVERS THE CLASS CLAIMS ONLY
(INDIVIDUAL CLAIMS ARE NOT RELEASED OR DISMISSED) ......... Page 21
VIII. CONCLUSION .................................................................................................. Page 22
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
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TABLE OF AUTHORITIES
California Cases Pages
7-Eleven Owners for Fair Franchising v. Southland Corp.,
(2000) 85 Cal. App. 4th 1135 ......................................................................................... 12, 14, 17
Beasley v. Wells Fargo, (1991) 235 Cal.App.3d 1407 ....................................................................................................... 19
Bell v. Farmers Ins. Exchange, (2004) 115 Cal. App. 4th 715 ...................................................................................................... 20
Cellphone Termination Fee Cases, (2010) 186 Cal. App. 4th 1380 .................................................................................................... 20
Cellphone Termination Fee Cases, (2009) 180 Cal.App.4th 1110 ...................................................................................................... 12
Chavez v. Netflix, Inc., (2008) 162 Cal. App. 4th 43 ........................................................................................................ 18
Clark v. American Residential Services, LLC., (2009) 175 Cal. App. 4th ............................................................................................................. 15
Dunk v. Ford Motor Co. 48, (1996) Cal.App.4th 1800 ........................................................................................... 12, 13, 14, 17
Horsford v. Board Of Trustees Of California State University, (2005) 132 Cal.App.4th 359 ........................................................................................................ 19
In re Microsoft I-V Cases, (2006) 135 Cal.App.4th 706, fn. 14 ............................................................................................ 12
Ketchum v. Moses, (2001) 24 Cal.4th 1122 ................................................................................................................ 19
Kullar v. Foot Locker Retail, Inc., (2008) 168 Cal.App.4th 116 ............................................................................................ 13, 15, 17
Serrano v. Priest, (1977) 20 Cal. 3d 25 (1977) .................................................................................................. 18, 19
State v. Levi Strauss & Co., (1986) 41 Cal. 3d 460 .................................................................................................................. 13
Wershba v. Apple Computer, Inc.,
(2001) 91 Cal.App.4th 224 ............................................................................................. 12, 13, 15, 18
/ / /
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Federal Cases Pages
D’Amato v. Deutsche Bank, (2d Cir. 2001) 236 F.3d 78 .......................................................................................................... 14
Hanlon v. Chrysler Corporation, (9th Cir. 1988) 150 F.3d 1011 ..................................................................................................... 14
Nat 'l Rural Tele. Coop. v. DIRECTV, Inc., (C.D. Cal. 2004) 221 F.R.D. 523 ................................................................................................ 17
Pacific Enters. Sec. Litig., (9th Cir. 1995) 47 F.3d 373 ......................................................................................................... 17
Roberts v. Texaco, (S.D.N.Y. 1997) 979 F. Supp. 185 .............................................................................................. 20
California Statutes Pages
California Rule of Court 3.77(b) ....................................................................................................... 12
Civil Code § 56.10 ............................................................................................................................ 16
Civil Code § 56.30 ............................................................................................................................ 16
Code of Civil Procedure § 384 .......................................................................................................... 11
Government Code § 3500 ................................................................................................................... 9
Government Code § 12940(a) ................................................................................................... 6, 7, 22
Government Code § 12940(e) ............................................................................................................. 4
Government Code § 12945 ............................................................................................................... 22
State Rules Pages California Rules of Court, Rule 3.766 ............................................................................................... 18
California Rules of Court, Rule 3.769 ............................................................................................... 12
Other Authorities Pages In re Janney Montgomery Scott LLC Financial Consultant Litig., Case No. 06-3202,
2009 U.S. Dist. LEXIS 60790 (E.D. Pa. July 16, 2009) ............................................................. 20
JF (HRL), 2008 U.S. Dist. LEXIS 108195 (N.D. Cal. Nov. 5, 2008) .......................................................... 14
Newberg on Class Actions, §11.51 .................................................................................................... 13
Stevens v. Safeway, Inc., Case No. 05-01988,
U.S. Dist. LEXIS 171 19 (C.D. Cal. Feb. 25, 2008) ....................................................................... 20
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
In this action, Plaintiffs allege that the County of Los Angeles violated the rights of
thousands of applicants and current employees by requiring them, as a condition of employment, to
submit to medical examinations and answer invasive medical and psychological questions on
comprehensive medical questionnaires that sought medical information that was not sufficiently
narrowly tailored to assess the employee’s ability to carry out the essential functions of each class
member’s job safely or effectively. On August 22, 2019, the Court granted preliminary approval of
a $6,390,000 class action settlement reached on behalf of 21,300 current and former employees and
post-offer job applicants of the County of Los Angeles who, during the class period, were required
to respond to the County’s pre-employment medical history questionnaires challenged in the
lawsuit (the “Unlawful Inquiry Class”). On October 10, 2019, the Court approved an Amendment
to the Settlement Agreement, which increased the settlement amount to $7,137,900, negotiated by
Class Counsel to cover the increased settlement class of 23,793 individuals. During the notice
period, 202 duplicate names were discovered, resulting in a final class size of 23,591.
In accord with the Court’s Order granting preliminary approval, notice to the Class
commenced on November 4, 2019. Class Members were given 45 days to submit objections or opt
out of the settlement. Nothing has occurred since preliminary approval to undermine the validity
of the Court’s previous finding that the settlement appears to be fair, adequate, and reasonable.
Quite the contrary, to date, no class member has objected to, or otherwise challenged the
settlement. Out of 23,591 class members, only 12 class members submitted a valid opt out form -
0.05% of the entire class.
This settlement is remarkable in that, while compensating each of the participating Class
Members approximately $196.85 for the privacy/informational intrusion in having to respond to
the offending questionnaire, this settlement also preserves the claims of those who actually
suffered an adverse employment action (“Adverse Employment Action” and “Pregnancy
Adverse Action” subclasses, including the two plaintiffs) so that they may still pursue their
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individual claims, if any. In addition to the monetary benefits, the Settlement includes meaningful
and substantial injunctive relief, which requires the County to take prompt and reasonable efforts
to repeal Los Angeles County Civil Service Rule 9 (“Rule 9”) and replace it with language that is
consistent with its obligations under the FEHA. The County expressly agreed that the claims
asserted in Plaintiffs’ operative Complaint, and this Court’s tentative ruling to partially certify an
injunctive relief class in this case, were the primary catalyst motivating the County to agree to the
injunctive relief.
The Settlement is the product of extensive arms-length negotiations between the parties and
their experienced and informed counsel, and is fair, reasonable, and adequate given the claims, the
alleged harm, and the parties' respective litigation risks. By this motion, the parties respectfully
request that the Court conduct a final review of the Settlement, and approve the Settlement as fair,
reasonable and adequate. In addition, Class Counsel respectfully request that the Court award a
Service Award of $5,000 to the each of the two named Plaintiffs, whose willingness to represent
the Class and active participation in the Action helped make the Settlement possible.
II. SUMMARY OF LITIGATION
A. Overview of the Litigation
In their operative complaint, Plaintiffs allege that the County systematically violated the
rights of its post-offer applicants through a preplacement medical examination process at the hiring
stage and violated the laws against prohibited inquiries and medical examinations. Plaintiffs further
allege that the County used non job-related information collected during post-offer medical
examinations to discriminate against applicants with medical conditions and disabilities and to
deny them employment rather than reasonably accommodate them. Plaintiffs contend that the
County took adverse employment action against applicants because of their disclosures of non-job
related, confidential medical conditions or information during the hiring process. (Declaration of
Alicia Olivares (“Olivares Dec.”) ¶¶ 9-10).
In addition to nominal damages for the unlawful privacy intrusion, Plaintiffs sought
injunctive and declaratory relief, including a declaratory judgment that parts of Rule 9 violates the
FEHA, and an injunction against the County enjoining it from engaging in each of the alleged
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unlawful practices, including an injunction prohibiting the County from requiring applicants for
County employment from having to answer medical questions or provide information about
medical conditions unless the County has specifically determined that the inquiry is job related and
consistent with business necessity as defined by the FEHA. (Olivares Dec. ¶ 10).
The County denies Plaintiffs’ claims and allegations. The County argued that it has not
followed the text of Rule 9.01 and 9.03 in practice since at least 2006. The County contends that
the County routinely complies with its policies by hiring applicants who have filled out a medical
history questionnaire, even if they have disclosed a medical condition. (Olivares Dec. ¶ 11).
Further, the County argued that none of the claims asserted by Plaintiffs are subject to class
certification because Plaintiffs cannot establish the requisite commonality and ascertainability.
For example, the County argued that in order to demonstrate that the questions on the medical
history questionnaires at issue in this lawsuit are unlawful, i.e., not "job related" or "consistent with
business necessity," the Court would necessarily have to examine each question on the applicable
questionnaire against the job functions of the particular position. Given that there are
approximately 1,200 different job classifications during the relevant time period that are subject to
a post-conditional offer medical examination, and given that there are between 66 and 139 different
medial questions on the various medical history questionnaires used, the Court would have to
conduct 148,859 separate analyses to determine whether a particular question is "job related" and
"consistent with business necessity" or not. Moreover, because most of the causes of action
Plaintiffs' are seeking to pursue on a class basis require a legally cognizable "adverse employment
action," an individualized inquiry and analysis will be required to see if an essential element of the
claim can be established. For all these reasons, the County argued that class certification was
improper. Id.
B. The Parties Settled At Mediation After Exhaustive Discovery Was Conducted
The Parties conducted extensive discovery and a thorough examination and investigation of
the facts and law relating to the claims and defenses asserted by the Parties in this Action. Plaintiffs
took five key depositions of County witnesses and the Persons Most Qualified to testify regarding
the implementation and application of Rule 9, the job classifications affected by Rule 9, the factors
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considered by the County in determining what medical and psychological standards to set for all
job classifications and what inquiries to require, the manner in which any and all pre-placement
medical questionnaires were utilized, the number of post-offer applicants involved, the number of
post-offer applicants who suffered any adverse employment action, and the County’s policies
applicable to all the issues raised in the Operative Complaint. Plaintiffs also reviewed and analyzed
over 25,000 pages of documents, including the County’s Medical Standards for Employment,
policy and enforcement procedures relating to medical examination results for preplacement
examinations, medical history questionnaires, Pre-Placement Protocol Sheets, Pre-
Placement Clinical Practice Guidelines, and guidelines relating to the purpose of performing
preplacement evaluations on applicants for various job classifications, proposed revisions to Rule
9, and job classification charts. (Olivares Decl. ¶¶ 12-14)
In addition, the County took the depositions of both named Plaintiffs. The parties have also
exchanged extensive and exhaustive written discovery, including multiple sets of interrogatories,
requests for production of documents, and requests for admission. In preparation for the Motion for
Class Certification, the Plaintiffs retained the services of a highly qualified forensic economist and
statistician, David C. Sharp, Ph.D., to ensure satisfaction with the Duran concerns and compliance
with sound statistical science. (Olivares Decl. ¶¶14-15).
On July 31, 2018, Plaintiffs’ Motion for Class Certification was heard. The Court issued a
tentative ruling and requested supplemental briefing before issuing a final ruling on Plaintiffs’
Motion. The Court’s tentative ruling indicated the Court’s view that “common issues of fact
underlie the issue of whether Defendant County of Los Angeles has a general policy that violates
FEHA, Government Code section 12940(e).” The Court’s tentative ruling also expressed concern
as to whether the “Adverse Employment Action” Class and the “Pregnancy Adverse Action” Sub-
Class (which apply to the third, sixth, seventh and tenth causes of action) could be certified on a
class basis. (Olivares Decl. ¶¶16-20).
Subsequent to the Court’s tentative ruling on Plaintiff’s Motion for Class Certification, on
or about August 28, 2018, the County entered into a Settlement Agreement with the California
Department of Fair Employment and Housing (“DFEH”) (“DFEH Settlement”) to resolve two
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lawsuits brought against the County by the DFEH: DFEH v. County of Los Angeles, Los Angeles
County Superior Court Case No. BC658050 (“DFEH Godoy action”), and DFEH v. County of Los
Angeles, Los Angeles County Superior Court Case No. BC663789 (“DFEH Ficarella action”).
Pursuant to the DFEH Settlement, the County agreed to injunctive relief that was the same or
substantially similar in nature to the injunctive relief sought by Plaintiffs in their Complaint,
including but not limited to, the County’s agreement with DFEH to take prompt and reasonable
efforts to repeal Los Angeles County Civil Service Rule 9 and replace it with language that is
consistent with the County’s obligations under the FEHA. Both the DFEH Godoy action and the
DFEH Ficarella action were filed after Plaintiffs initiated this Action. The County expressly
agreed in this Settlement that the claims asserted in Plaintiffs’ operative Complaint, and this
Court’s tentative ruling to partially certify an injunctive relief class in this case, were the
primary catalyst motivating the County to agree to similar injunctive relief in the settlement
with the DFEH. (Settlement Agreement, Section II, D(6)) (Olivares Dec. ¶21)
On January 10, 2019, the Parties participated in private mediation before a reputable and
respected JAMS mediator experienced in class actions. The Parties engaged in good faith, arm’s-
length negotiations during the mediation. At and after mediation, the Parties reached a
comprehensive Memorandum of Understanding (“MOU”) regarding the settlement of what the
Parties agree are the only likely viable class claims relating to the Unlawful Inquiry Class
Members. (Olivares Dec. ¶22) After many months of further negotiations, the parties ultimately
memorialized the terms of the settlement in “Settlement Agreement re Class Claims,” which is
attached as Exhibit 1. The MOU is attached to the Settlement Agreement as Exhibit A.
C. Preliminary Approval
On August 22, 2019, the Court granted preliminary approval of the Settlement. (Olivares
Decl. ¶ 23, Exhibit 2). During the process of compiling the Database of all Class Members,
however, the County discovered there were a total of 2,493 additional class members. Given the
significant increase in additional class members, Class Counsel negotiated for the payment of an
additional $747,900 to be added to the Settlement Fund, increasing the settlement fund from
$6,390,000 to $7,137,900. (Olivares Dec. ¶24)
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This guaranteed that the existing settlement pool was not diluted and that the additional
costs and attorney’s fees were covered. Accordingly, the parties subsequently negotiated and
drafted an Amendment to the Settlement Agreement, which the Court approved on October 10,
2019. (Olivares Decl. ¶24, Exhibit 3). The County of Los Angeles next requested a modification
of the already approved Notice to the Class to modify the class period from April 1, 2014 to
October 14, 2018 (if applying to any County Department with the exception of the Department of
Health Services) or to September 20, 2019 (if applying to the Department of Health Services).
(Olivares Decl. ¶25). The change to the existing class period (“April 1, 2014 to the present”) was
needed because the County represented to the Court that it had already stopped using the medical
questionnaires that were the subject of the litigation as of October 14, 2018 for all departments
with the exception of the Department of Health Services, and as of September 20, 2019 for the
Department of Health Services. (Olivares Decl. ¶25). On October 29, 2019, the court approved the
revised language, but ordered that the Final Approval Order must specify that the claims released
are only those within the revised date limitation. (Olivares Decl. ¶25, Exhibit 4).
III. EVALUATION OF THE SETTLEMENT
A. Nature of Claims and Relief Sought
Plaintiffs allege the following claims in the Corrected Second Amended Complaint
(“CSAC”): (1) Unlawful Medical Inquiry in Violation of FEHA (asserted by the entire “California
Class,”); (2) Violation of Confidentiality of Medical Information Act (asserted by the entire
“California Class,”); (3) Discrimination in Violation of Gov. Code, section 12940(a) (asserted by
the “Adverse Employment Action Class” and the “Pregnancy Adverse Action Sub-Class” only; (4)
Failure to Accommodate in Violation of FEHA (asserted by Valentine and Moore individually only
and not on a class basis); (5) Failure to Engage in the Interactive Process in Violation of FEHA
(asserted by Valentine and Moore individually only and not on a class basis); (6) California Family
Rights Act (“CFRA”) Interference (asserted by the “Adverse Employment Action Class” only, as
defined in the Complaint); (7) Pregnancy Disability Leave (“PDL”) Interference (asserted by the
“Pregnancy Adverse Action” Sub-Class, as defined in the Complaint); (8) Failure to Accommodate
in Violation of Pregnancy Disability Leave Law (“PDLL”) (asserted by Moore individually only
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
and not on a class basis); (9) Failure to Engage in the Interactive Process in Violation of PDLL
(asserted by Moore individually only and not on a class basis); and (10) Sex/Pregnancy
Discrimination in Violation of Gov. Code, section 12940(a) (asserted by the “Pregnancy Adverse
Employment Action” Sub-Class only).
On behalf of themselves and the Class, Plaintiffs sought injunctive and declaratory relief,
including a declaratory judgment that parts of Los Angeles County Civil Service Rule 9 violated
the FEHA, and an injunction against the County enjoining it from engaging in each of the alleged
unlawful practices, policies and patterns set forth in the Complaint, including an injunction
prohibiting the County from requiring applicants for County employment from having to answer
medical questions or provide information about medical conditions unless the County has
specifically determined that the inquiry is job related and consistent with business necessity as
defined under the FEHA and its implementing regulations. In addition, Plaintiffs sought
compensatory damages, civil penalties and administrative fines, attorney’s fees and costs of suit.
Plaintiff sought to certify the following Class and/or Sub Classes:
“Unlawful Inquiry Class”: “All employees and post-offer job applicants
who, during the class period, were required to undergo preplacement medical
entrance examinations that utilized the County’s Occupational Health Program’s
(“OHP”) “Basic” or “General” “Pre-Placement Medical History Questionnaire”
and/or the medical history questionnaire(s) used for pre-placement medical entrance
examinations for classifications in the County’s Department of Health Services’
(“DHS”).
“Adverse Employment Action” Class: All applicants who were required to
complete the medical history questionnaires identified above and who suffered an
adverse employment action, including but not limited to, having a job offer revoked,
having their position terminated and/or suffering a delay in hire as a result of
medical or psychological information disclosed or revealed as part of the
aforementioned pre-placement medical examination process.
“Pregnancy Adverse Action” Sub-Class: Applicants who were required to
complete the medical history questionnaires identified above and who suffered an
adverse employment action due to their disclosure of a pregnancy, including but not
limited to, applicants whose job offers were revoked, whose positions were
terminated or who suffered a delay in hire as a result of the disclosure of pregnancy,
being pregnant or anticipation of becoming pregnant.
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B. Composition of Settlement Class
The Settlement resolves only the claims asserted on behalf of the “Unlawful Inquiry
Class,” as defined above. According to County records, the “Unlawful Inquiry Class” consists of
23,591 individuals, i.e., 23,591 individuals were requested to complete the aforementioned medical
history questionnaires between April 1, 2014 and October 14, 2018 (if applying to any County
Department with the exception of the Department of Health Services) and September 20, 2019 (if
applying to the Department of Health Services). (Settlement Agreement, Section II, D(2)(2.1) and
Section J(5); Olivares Dec. ¶32).
The Settlement does not settle or release the claims asserted on behalf of the “Adverse
Employment Action” Class and the “Pregnancy Adverse Action.” Members of the “Adverse
Employment Action” Class and the “Pregnancy Adverse Action” Class (including Plaintiffs
Danessa Valentine and Jalisa Moore) will retain the right to individually pursue any claim asserted
in the CSAC on their behalf. (Settlement Agreement, Section II, J(5) and Section II, E(2)); Olivares
Dec. ¶32).The class members were given notice that Class Counsel will no longer be pursuing
those claims on a class basis in light of the Court’s expressed skepticism, at the July 31, 2018
hearing on Plaintiffs’ Motion for Class Certification, about the ability to certify those claims. Class
Members were also given notice that the statute of limitations on individual claims asserted on
behalf of the “Adverse Employment Action” Class and the “Pregnancy Adverse Action” Class
have been tolled during the pendency of this lawsuit, through the date of final approval of the
settlement. (Settlement Agreement, Section II, E(2))
C. Benefits to the Unlawful Inquiry Class
Monetary Relief: The County shall pay a maximum settlement amount of Seven Million,
One Hundred, Thirty-Seven Thousand, Nine Hundred Dollars ($7,137,900.00) ("Maximum
Settlement Amount") to resolve the claims made by the “Unlawful Inquiry Class” Members. The
potential recovery for each Class Member is calculated after subtracting approved Attorney’s Fees
and costs, Settlement Administration costs, and the Service Payments to the Named Plaintiffs.
After these costs are deducted, the Settlement Pool is estimated to be approximately Four Million,
Six Hundred, Forty-One Thousand, Six Hundred Forty-Three Dollars ($4,641,643).
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County records, the “Unlawful Inquiry Class” consists of 23,591 individuals, i.e., 23,591
individuals were requested to complete the aforementioned medical history questionnaires during
the Class Period. Each Participating Class Member was estimated to receive a payment of
approximately $195. Class Members were not required to submit a claim form. (Settlement
Agreement, Section II, D(2); Olivares Dec. ¶34)
Injunctive Relief: The County agreed to take prompt and reasonable efforts to repeal Los
Angeles County Civil Service Rule 9 and replace it with language that is consistent with its
obligations under the FEHA, provided that such language is in accord with the DFEH Settlement.
The County agrees that the revisions or re-write will eliminate the concepts that employees are
“expected to remain in a state of good health for a reasonable period of service, consistent with the
economics of retirement, sick leave, and other employee benefit programs.” Any language change
regarding Rule 9 is subject to collective bargaining with County employee associations pursuant to
the Meyers-Milias-Brown Act, Government Code section 3500, et seq., the employee relations
ordinance of the county of Los Angeles, and any collective bargaining process and employee
association demands that must be complied with as well. (Settlement Agreement, Section II, D(3)-
(5); Olivares Dec. ¶34)
D. Release by the Settlement Class
Upon this Settlement becoming final, the County and the Released Persons will be released
from any claim that Plaintiffs or Settlement Class Members ever had against the Released Persons
arising from or in any way whatsoever relating to actions or omissions which have been asserted or
which could reasonably have been asserted only on behalf of the Unlawful Inquiry Class.
Notwithstanding the foregoing, the release does not settle or release the claims asserted on behalf
of the “Adverse Employment Action” Class and the “Pregnancy Adverse Action.” Specifically, the
release language states:
In addition to the effect of any final judgment entered in accordance with
this Settlement Agreement, upon this Settlement becoming final, the County and the
Released Persons will be released and forever discharged from any and all actions,
claims, demands, rights, suits, and causes of action of any kind or nature whatsoever
against the County and the Released Persons, including damages, costs, expenses,
penalties, and attorneys' fees, whether at law or equity, known or unknown, foreseen
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or unforeseen, developed or undeveloped, direct, indirect or consequential,
liquidated or unliquidated, arising under common law, regulatory law, statutory law,
or otherwise, based on federal, state, or local law, statute, ordinance, regulation,
code, contract, common law, or any other source, or any claim that Plaintiffs or
Settlement Class Members ever had, now have, may have, or hereafter can, shall or
may ever have against the Released Persons in any court, tribunal, arbitration panel,
commission, agency or before any governmental and/or administrative body, or any
other adjudicatory body, on the basis of, connected with, arising from or in any way
whatsoever relating to actions or omissions which have been asserted or which
could reasonably have been asserted by the Settlement Class Members on behalf of
the ''Unlawful Inquiry Class" against the County in this Action (and in Plaintiffs'
Motion for Certification in the event there are different or additional claims asserted
therein). This release is limited to claims that arose or could have been asserted as of
the date of final approval of the Settlement Agreement. (Settlement Agreement,
Section II, J(1)).
“Released Persons” means and includes the County and its past and present employees and
elected officials, departments, agents, insurers, spokespersons, legal representatives, attorneys,
public relations firms, and assigns of all such persons or entities. (Settlement Agreement §IIA(10)).
The Settlement Agreement makes clear that:
“This Release does not apply to claims of the Adverse Employment Action Class
and/or the Pregnancy Adverse Employment Action Class for the conduct alleged on
their behalf, which are not part of this settlement. Participation in the settlement of
the Unlawful Inquiry Class does not settle, release, waive and/or compromise the
claims of the Adverse Employment Action Class Members and/or the Pregnancy
Adverse Action Class Members.” (Settlement Agreement, Section II, J(5)).
E. The Notice and Settlement Administration Processes Were Completed
Pursuant to The Court’s Order
The Parties retained Simpluris Class Action Settlement Administration (“Simpluris”)1 to
provide the settlement administration services agreed to in the Settlement Agreement. Simpluris’
duties included: printing and mailing the Class Notice; receiving undeliverable Class Notices;
posting an informational website; receiving and validating requests for exclusion; answering
questions from Class Members; computing, processing, reviewing, and paying the Settlement
Payments; preparing any tax returns and other filings required by any governmental taxing
1 At preliminary approval the Court appointed ILYM Group as the Settlement Administrator, but after ILYM raised its original quote dramatically, the Parties agreed to and the Court approved Simpluris.
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authority or agency; and preparing any other notices, reports of filings to be prepared in the course
of administering the Settlement Payments. (Olivares Dec. ¶26; Jarrod Salinas (“Salinas”) Dec. ¶3)
The County of Los Angeles compiled and provided Simpluris with the Class List. The
Class List contained a total of 23,793 names, 23,591 of which were unique Class Members and 202
were duplicate names. (Salinas Dec. ¶5). Pursuant to the schedule approved by the Court, Simpluris
mailed via First Class Mail the Notice Packets to all 23,591 Class Members, after updating the
mailing addresses through the National Change of Address Database. (Salinas Dec. ¶¶6-7). Of the
1,108 Notice Packets that were returned as undeliverable, Simpluris conducted a skip trace by
using a reputable search tool owned by Lexis-Nexis, using the Class Members’ name, previous
address and Social Security number to locate a current address. Through the advanced address
searches, Simpluris was able to locate 900 updated addresses and Simpluris promptly mailed
Notice Packets to those updated addresses. Ultimately, 188 Class Member’s Notices were
undeliverable because Simpluris was unable to locate a current address. (Salinas Dec. ¶9).
To reach the maximum number of class members and ensure that any potential class
member who may have moved had access to the case information, Simpluris established and is
maintaining a website dedicated to this case (www.valentinevcountyofla.com) . The Settlement
Agreement, Amendment to Settlement Agreement, Order Approving Amendment to Settlement
Agreement, Order Granting Preliminary Approval, and the Notice of Class Action Settlement are
all available for download from the website. The website was operational on November 4, 2019,
and is accessible 24 hours a day, 7 days a week. (Salinas Dec. ¶10).
F. Response to the Proposed Settlement – No Objections
Class Members were given 45 days to opt out or object to the Settlement. Plaintiffs are
pleased to report that of the 23,591 Class Members, only 12 (0.05%) opted out and no Class
Member objected to the Settlement. (Salinas Dec. ¶¶11-12). All Class Members who did not opt
out will receive a payment in the amount of $196.85. (Salinas Dec. ¶¶113) Class Members will
have one year to cash their checks. There is no reversion of funds to Defendant. Any monies
from checks not cashed within 365 days of initial issuance shall be distributed, pursuant to Code of
Civil Procedure Section 384. The Cy Pres funds will be provided to a non-profit organization,
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chosen by the County, that provides services that assist individuals who face barriers to
employment. The unclaimed residual funds shall be payable to New Horizons, 15725 Parthenia St.,
North Hills, California, 91343; http://newhorizons-sfv.org/. (Olivares Dec. ¶¶30-31).
G. Notice of Final Judgment
Notice of Final Judgment shall be given to the Class Members by posting notice on the
Settlement Administrator's website, or, pursuant to California Rule of Court 3.77(b), in any other
manner specified by the Court. (Settlement Agreement, Section II, M(9))
IV. ARGUMENT
A. Legal Standard for Granting Final Approval of the Class Action Settlement
Settlement of a class action requires court approval. Cal. Rules of Court, Rule 3.769. To
warrant final approval, a class settlement must be fair, adequate, and reasonable. Dunk v. Ford
Motor Co. 48, (1996) Cal.App.4th 1800, 1801 (citation omitted). The purpose of this requirement
is to “prevent fraud, collusion or unfairness to the class.” Id. The court has broad discretion in
determining whether to approve a proposed settlement. Wershba v. Apple Computer, Inc., (2001)
91 Cal.App.4th 224, 245, affirming approval of nationwide class settlement); 7-Eleven Owners for
Fair Franchising v. Southland Corp., (2001) 85 Cal.App.4th 1135, 1145-46 (affirming approval of
class settlement). The law generally favors settlement, particularly in class actions, where
substantial resources can be conserved by avoiding the time, cost, and rigors of litigation. In re
Microsoft I-V Cases, (2006) 135 Cal.App.4th 706, 723, fn. 14 (“Public policy generally favors the
compromise of complex class action litigation”); Cellphone Termination Fee Cases, (2009) 180
Cal.App.4th 1110, 1125 (denial of class settlement was “particularly problematic” in light of the
public policy favoring settlement of complex class actions.)
In evaluating the fairness of a class settlement, courts consider several relevant factors,
including “the strength of the plaintiffs’ case, the risk, expense, complexity and likely duration of
further litigation, the risk of maintaining class action status through trial, the amount offered in
settlement, and the extent of discovery completed and the stage of the proceedings, the experience
and views of counsel, the presence of a governmental participant, and the reaction of the class
members to the proposed settlement.” Dunk, 48 Cal.App.4th at 1801. These factors are not
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exhaustive, and the court “is free to engage in a balancing and weighing of factors depending on
the circumstances of each case.” Wershba, 91 Cal.App.4th at 245.
A presumption of fairness exists where: (1) the settlement is reached through arm’s-length
negotiations; (2) investigation and discovery are sufficient to allow counsel and the court to act
intelligently; (3) counsel is experienced in similar litigation; and 4) the percentage of objectors is
small. Dunk, 48 Cal.App.4th at 1802. In Kullar v. Foot Locker Retail, Inc., (2008) 168
Cal.App.4th 116, the Court of Appeals held that courts should not attempt to decide the merits of
the case or to substitute its evaluation of the most appropriate settlement for that of the attorneys.
Ultimately, the Court must “satisfy itself that the class settlement is within the ‘ballpark’ of
reasonableness,” which requires receiving “basic information about the nature and magnitude of
the claims in question and the basis for concluding that the consideration being paid for the release
of those claims represents a reasonable compromise.” Id. at 133.
The parties’ settlement satisfies all of these requirements.
B. The Settlement Is Fair, Adequate, and Reasonable
1. The Settlement Is The Product of Arm’s Length and Informed Negotiations
“[W]hat transpires in settlement negotiations is highly relevant to the assessment of a
proposed settlement’s fairness.” State v. Levi Strauss & Co., (1986) 41 Cal. 3d 460, 482. Courts
presume the absence of fraud or collusion in the negotiation of a settlement, unless evidence to the
contrary is offered; thus, there is a presumption that settlement negotiations are conducted in good
faith. Newberg on Class Actions, §11.51. This settlement is the product of meaningful and
deliberate arm’s-length bargaining between attorneys who are experienced in complex employment
cases, and who are well informed about the facts and legal issues of this case. Class Counsel are
among the most experienced in employment cases and class actions in California. As set forth at
preliminary approval, prior to entering into settlement discussions, the parties exchanged
significant formal and informal discovery sufficient to enable the parties to evaluate their
respective legal positions. To avoid protracted litigation, and after exchanging extensive discovery
that allowed full exploration of the factual and legal issues, the parties agreed to participate in
private mediation with a respected and experienced neutral at JAMS. Prior to mediation, the
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parties exchanged mediation briefs to assess and evaluate the parties’ respective analysis and
damages analysis. The mediator helped manage the Parties’ expectations and provided useful,
meaningful and neutral analysis of the issues and risks to both sides. A mediator’s participation
weighs considerably against any inference of a collusive settlement. In re Apple Computer, Inc.
Derivative Litig., No. C 06-4128 JF (HRL), 2008 U.S. Dist. LEXIS 108195 (N.D. Cal. Nov. 5,
2008). See also D’Amato v. Deutsche Bank, (2d Cir. 2001) 236 F.3d 78, 85 (a “mediator’s
involvement in pre-certification settlement negotiations helps to ensure that the proceedings were
free of collusion and undue pressure.”).
At the full day mediation, the parties spent significant time discussing the merits of the
class claims, Defendant’s defenses, and the risks inherent in further litigation, including the real
possibility that the Court would not certify the proposed classes. With the guidance of the
mediator, the parties were able to reach agreement that resulted in a Memorandum of
Understanding, which took months to negotiate and finalize after the mediation. (Olivares Dec.
¶22). Thereafter, the MOU was presented to the Los Angeles County Board of Supervisors on
May 21, 2019, and the settlement was approved. The parties negotiated the terms of the long form
Settlement Agreement for many weeks, and the final Settlement Agreement was executed by all
parties on July 24, 2019. (Olivares Dec. ¶22).
At all times, the Parties’ negotiations were adversarial and non-collusive.
2. Sufficient Investigation and Discovery Have Been Conducted To Allow Counsel and
the Court to Evaluate the Fairness of the Settlement
Sufficient investigation by counsel reinforces the presumption of fairness when counsel and
the Court evaluate the settlement. Dunk, 48 Cal.App.4th at 1802; see 7-Eleven, 85 Cal. App.4th at
1150. In this case, the parties engaged in robust discovery plus informal exchange of information
and documents in advance of mediation to ensure that the parties had access to relevant facts and
documents to enable the parties to conduct a thorough examination and evaluation of the pending
and potential claims. (Olivares Dec. ¶¶12-15). Class Counsel believes the proposed settlement is
an excellent and fair result, reached after conducting the investigation and discovery necessary to
make a full and reasoned assessment of the class claims. Hanlon v. Chrysler Corporation (9th Cir.
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1988) 150 F.3d 1011, 1027 (affirming approval of settlement and noting “[t]here is no evidence to
suggest that the settlement was negotiated in haste or in the absence of information illuminating the
value of plaintiffs’ claims.”) As presented at the preliminary approval hearing, the results achieved
by Class Counsel in this case are remarkable compared to other class action settlements in breach
of privacy cases. (Motion for Preliminary Approval, at pp. 10-11).
3. The Settlement Is Reasonable Given the Value of the Claims Asserted and the Risks
of Further Litigation
A court must “receive and consider enough information about the nature and magnitude of
the claims being settled, as well as the impediments to recovery, to make an independent
assessment of the reasonableness of the terms to which the Parties have agreed.” Kullar, supra, 168
Cal.App.4th at 133. To properly analyze this factor, the record should contain an analysis of how
the “core legal issue[s]” were considered, such that the trial court can “satisfy itself that the class
settlement is within the ballpark of reasonableness.” Clark v. American Residential Services, LLC.
(2009) 175 Cal. App. 4th at 789, 802; see also Kullar, 168 Cal. App. 4th at 133. The analysis
should provide the trial court with “basic information about the nature and magnitude of the claims
in question and basis for concluding that the consideration being paid for the release of those
claims represents a reasonable compromise.” Id. The Court in Kullar explained that, although “not
exhaustive,” a determination of whether a settlement is “fair, adequate and reasonable” should take
into account the strength of a plaintiff’s case, the risk, expense, complexity and the likely duration
of further litigation. Id. at 127-128. Even so, “[i]n the context of settlement agreements, the test is
not the maximum amount plaintiffs might have obtained at trial on the complaint, but rather
whether the settlement agreement is reasonable under the circumstances.” Wershba, 91
Cal.App.4th at 250 (citation omitted).
Plaintiffs achieved all of the injunctive relief they sought in the lawsuit plus significant
monetary relief for the Class. The County expressly agrees that the claims asserted in Plaintiffs’
operative Complaint, and this Court’s tentative ruling to partially certify an injunctive relief class
in this case, were the primary catalyst motivating the County to agree to similar injunctive relief in
a separate settlement with the DFEH. (Olivares Dec. ¶21). In addition, Plaintiffs sought nominal
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damages for the privacy intrusion, and for the violation of Civil Code section 56.10. Plaintiffs
contend that pursuant to Civil Code section 56.30, nominal damages in the amount of $1,000 per
person are recoverable without proof that the plaintiff suffered or was threatened with actual
damages. However, at the hearing on the Motion for Class Certification, the Court was not
convinced that Plaintiffs would be able to recover any nominal damages and requested
supplemental briefing. Plaintiffs understood the risk that the Court would find that Plaintiffs could
not meet the elements of the Violation of the Confidentiality of Medical Information Act (CMIA)
in light of the Act’s requirement that a violation includes “use” or “disclosure” of the information,
not just “gathering of information.” (Olivares Dec. ¶¶16-19).
In this Settlement, Plaintiffs achieved the full scope of injunctive relief sought plus a
monetary payment to each participating class member in the amount of approximately $196.85 for
having to fill out the questionnaires challenged in the lawsuit, without requiring a showing of
actual loss or damages. Given the heavily disputed legal issues concerning the availability of the
damages sought, there was a substantial risk that class members would receive no compensation at
all for having to provide their medical information to the County without an adverse employment
action. Consequently, the settlement amount reached took into account the strengths and
weaknesses of each class claim and likelihood of success at the trial level in order to reach a fair
and reasonable result.
4. The Experience and Views of Counsel Support Final Approval
The experience and views of counsel warrant a final finding by the Court that the settlement
is fair, adequate, and reasonable. Class Counsel are experienced class action litigators and
understand that the outcome of class certification, trial, and any attendant appeals were inherently
uncertain, as well as likely to consume many more months, even years. Having extensively briefed
the pivotal legal and factual issues, counsel for the parties, experienced class action litigators well
versed in employment law, arrived at a reasonable resolution through arm’s length mediation and
negotiation process. Class Counsel's history of successfully prosecuting wage and hour class
actions made particularly credible their commitment to pursue this litigation until they achieved a
fair result. (Olivares Dec. ¶2-8; Feldman Dec. ¶¶4-7; deRubertis Dec. ¶¶4-17). Accordingly, Class
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Counsel's assessment is entitled to great weight, and strongly supports preliminary approval of the
proposed settlement. See Dunk, 48 Cal.App.4th at 1801; see also Kullar, 168 Cal.App.4th at 129;
see also Nat 'l Rural Tele. Coop. v. DIRECTV, Inc. (C.D. Cal. 2004) 221 F.R.D. 523,528 ("'Great
weight' is accorded to the recommendation of counsel, who are most closely acquainted with the
facts of the underlying litigation."). Indeed, as the DIRECTV court explained, counsel "are better
positioned than courts to produce a settlement that fairly reflects each party's expected outcome in
the litigation." Id. (quoting Pacific Enters. Sec. Litig. (9th Cir. 1995) 47 F.3d 373,378).
As such, absent a finding of fraud or collusion, settlement agreements negotiated and
endorsed by experienced counsel are presumptively fair and reasonable. See Dunk, 48 Cal.App.4th
at 1802. By virtue of their investigation, Class Counsel was able to thoroughly evaluate the
respective strengths and weaknesses of their positions, as well as the extent of available recovery.
Class Counsel worked diligently to secure the best possible result for the Class through vigorous,
arm's length negotiations. Class Counsel's views and recommendations concerning the Settlement
are the product of a thorough analysis and consideration of the issues and risks of continued
litigation. Class Counsel believes the results achieved by the Settlement are eminently fair,
adequate and reasonable. Because the parties and their counsel agree that the settlement is fair and
provides valuable benefits to the settlement class, this factor favors final approval.
5. The Overwhelmingly Positive Reaction of Class Members Favors Final
Approval
Another factor that may be considered at final approval is class members’ reaction to the
settlement. Dunk, 48 Cal.App.4th at 1801. The reaction here has been overwhelmingly positive.
Importantly, no objections have been made and less than 0.05% opted out of the settlement. This
represents a vote of confidence by the settlement class and indicates the settlement is fair,
adequate, and reasonable.
C. The Class Received Adequate Notice
The manner of giving notice and the content of the notice must “fairly apprise the
prospective members of the class of the terms of the proposed settlement and of the options that are
open to them in connection with the proceedings.” 7-Eleven, 85 Cal.App.4th at 1164 (citation
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omitted.) An appropriate notice has a “reasonable chance of reaching a substantial percentage of
the class members.” Wershba, 91 Cal.App.4th at 251 (citation omitted). Here, the Court-approved
notice adequately protected the due process rights of all class members and satisfied Cal. Rules of
Court, Rule 3.766 with regard to the content of the notice, the manner of notice and the means of
giving notice.
In this case, the notice plan was carefully tailored to reach all of the class members and
fairly apprise them of the settlement and of their opportunity to object and opt out. Notice Packets
were mailed out via First Class US Mail. In addition, with the understanding that many class
members may have moved and updated contact information for them may not be feasible, a static
website was created (www.valentinevcountyofla.com ) for all potential class members to easily
access. The website contained case information, a copy of the full Notice of Class Action
Settlement, all of the case documents (including the Settlement Agreement, the Amended
Settlement Agreement, the Order Granting Preliminary Approval), as well as all important dates
(including the opt out and objection deadlines and procedures and the date of the Final Fairness
Hearing). (Salinas Dec. ¶10).
V. ATTORNEY’S FEES AND COSTS
Class Counsel filed herewith an application for an award of the reasonable attorney's fees in
the amount of $2,379,062, which constitutes 33.33% of the common fund, plus $55,000 in
litigation expenses actually incurred. The California Supreme Court has held that “when a number
of persons is entitled in common to a specific fund, and an action brought by a plaintiff or plaintiffs
for the benefit of all results in the creation or preservation of that fund, such plaintiff or plaintiffs
may be awarded attorney’s fees out of the fund.” Serrano v. Priest, (1977) 20 Cal. 3d 25, 34
(1977). California courts routinely award attorney’s fees equaling one third or more of the potential
value of the common fund. See Chavez v. Netflix, Inc., (2008) 162 Cal. App. 4th 43, 66 n. 11.
Class Counsel has filed a comprehensive motion for an award of attorneys’ fees
supported by detailed time entry records and supporting declarations. The requested fees are fair
compensation for undertaking complex, risky, expensive, and time-consuming litigation solely on a
contingency basis. Further, the requests are in line with other attorneys’ fees awards in California.
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The Supreme Court held “that trial courts have discretion to conduct a lodestar cross-check
on a percentage fee,” to evaluate the reasonableness of a requested percentage fee. Laffitte v.
Robert Half International Inc., No. S222996 (Aug. 11, 2016). Plaintiff’s Counsel has submitted
declarations and timesheets of counsel and counsel’s staff to support Plaintiff’s request for
approval of 33.33%. Plaintiff’s Counsel’s timesheets reflect that to date, the lodestar is $1,724,439.
Class Counsel request a modest multiplier of 1.38 based (1) the novelty and difficulty of the
questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of
the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee
award. “It has long been recognized, however, that the contingent and deferred nature of the fee
award in a civil rights or other case with statutory attorney fees requires that the fee be adjusted in
some manner to reflect the fact that the fair market value of legal services provided on that basis is
greater than the equivalent noncontingent hourly rate.” Horsford v. Board Of Trustees Of
California State University (2005) 132 Cal.App.4th 359, 394-95 (citing Ketchum v. Moses (2001)
24 Cal.4th 1122, 1132-1133).
Here, because Class Counsel assumed the risk of not being paid any fees or fees less
than the work actually performed, and of not recouping their costs if plaintiff did not prevail, the
court may enhance their fees with a multiplier to compensate for the contingent risk assumed by
them. (Ketchum, 24 Cal.4th at 1132; Serrano v. Priest (Serrano III) (1982) 20 Cal.3d 25, 49;
Beasley v. Wells Fargo (1991) 235 Cal.App.3d 1407, 1418-19 [awarding full lodestar figure plus a
1.5 multiplier for contingent risk].) The requested fees are fair compensation for undertaking
complex, risky, expensive, and time-consuming litigation solely on a contingency basis. Further,
the requests are in line with other attorneys’ fees awards in California for wage and hour class
actions, particularly where a significant portion of the class members will be receiving substantial
relief. (Olivares Dec. ¶49)
In addition, Plaintiff has provided the necessary documentation to support the litigation
costs actually incurred. (Olivares Decl. ¶49; deRubertis Dec. ¶29) The Court approved notice to
the Class Members regarding the settlement informed Class Members of the requested amount of
attorney’s fees and that the instant motion will be heard at the settlement Fairness Hearing, where
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Class Members may appear and present any objections. The Motion for Attorney’s Fees was
uploaded on the dedicated website for Class Members to have access and review in advance of the
Final Fairness Hearing (Olivares Dec. ¶54).
VI. INCENTIVE PAYMENTS AND ADMINISTRATION COSTS
Plaintiffs Danessa Valentina and Jalisa Moore seek a service aware of $5,000 for each of
them. The payment is intended to recognize Ms. Valentine’s and Ms. Moore’s substantial
initiative, efforts, and risks assumed on behalf of the entire Class. Named Plaintiffs are eligible for
a payment that reasonably compensates them for undertaking and fulfilling a fiduciary duty to
represent absent class members. Cellphone Termination Fee Cases (2010) 186 Cal. App. 4th 1380,
1393-194; Bell v. Farmers Ins. Exchange (2004) 115 Cal. App. 4th 715, 726 (upholding "service
payments" to named plaintiffs for their efforts in bringing the case); Stevens v. Safeway, Inc., Case
No. 05-01988, U.S. Dist. LEXIS 171 19 (C.D. Cal. Feb. 25, 2008) ($20,000 and $10,000 to two
class representatives); In re Janney Montgomery Scott LLC Financial Consultant Litig., Case No.
06-3202, 2009 U.S. Dist. LEXIS 60790 (E.D. Pa. July 16, 2009) ($20,000 each to three class
representatives). The guiding standard in determining the amount of an incentive award is to
evaluate the special circumstances, the personal risk attached to being a named plaintiff, the time
spent assisting in the litigation, the factual expertise provided, other burdens suffered by the
plaintiffs and the recovery. Roberts v. Texaco (S.D.N.Y. 1997) 979 F. Supp. 185, 201. Particularly
in employment wage claims, the named Plaintiff should be entitled to an enhancement award as an
incentive to take the risks associated with pursuing employment claims on behalf of other
employees. Where the plaintiff is a "present or past employee whose present position or
employment credentials or recommendation may be at risk by reason of having prosecuted the suit,
who therefore lends his or her name and efforts to the prosecution of litigation at some personal
peril, a substantial enhancement award is justified." Id.
From the onset, Plaintiffs, Danessa Valentina and Jalisa Moore, contributed significantly to
the litigation and the ultimate result. Ms. Moore and Ms. Valentine have submitted declarations
detailing their participation and involvement in this case. (Valentine Dec. ¶¶ 8-13; Moore Dec.
¶11-15) Plaintiffs provided significant information that assisted counsel in prosecuting the class
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
claims, spent considerable time answering Counsel’s questions, responded to formal discovery,
provided key documents, appeared for their respective depositions, and personally attended the
mediation that resulted in this settlement. Ms. Valentine missed several days of work to attend her
deposition and mediation (Valentine Dec. ¶¶ 8-13), and Ms. Moore was required to take time away
from caring for her young children and find childcare for them while she attended her deposition
and the mediation in this case (Moore Dec. ¶11-15; Olivares Dec. ¶55)
Finally, as a matter of public policy, to ensure meritorious class action matters in the
employment field are prosecuted, a service award is essential to ensure future plaintiffs will be
willing to litigate, often for years, where personal damages may be limited. It is not reasonable to
expect representative plaintiffs to undertake rigorous litigation of complex cases, at great personal
risk and with little personal reward. For all these reasons, Plaintiffs’ request for the $5,000 to each
of the two named plaintiffs is justified.
In addition, the Settlement Administrator, Simpluris, has incurred a total of $52,195 in costs
associated with the administration of this settlement. This includes all costs incurred to date, as
well as estimated costs involved in completing the settlement administration. (Salinas Dec. ¶14).
Simpluris has extensive experience in administering Class Action Settlements, including extensive
experience in the realm of labor and employment class action settlements. (Salinas Dec. ¶¶2-3).
VII. FINAL JUDGMENT COVERS THE CLASS CLAIMS ONLY (INDIVIDUAL
CLAIMS ARE NOT RELEASED OR DISMISSED)
The Order and Final Judgment, filed herewith, covers only the Unlawful Inquiry claims
asserted in the First and Second Causes of Action of Plaintiffs’ Corrected Second Amended
Complaint (“CSAC”): (1) Unlawful Medical Inquiry In Violation of FEHA, and (2) Violation of
Confidentiality of Medical Information Act. The Adverse Employment Action and Pregnancy
Adverse Employment Action claims asserted in the remaining 3rd to 10th causes of action are not
released or dismissed. Specifically, the remaining causes of action are not disposed of by this
Settlement and expressly remain to be prosecuted individually (included by Plaintiffs Valentine
and Moore):
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• Third Cause of Action for Disability Discrimination In Violation of Gov. Code §12940(a),
asserted by the “Adverse Employment Action Class” and the “Pregnancy Adverse Action
Sub-Class”;
• Fourth Cause of Action for Failure to Accommodate In Violation of FEHA;;
• Fifth Cause of Action for Failure to Engage In the Interactive Process In Violation of
FEHA;
• Sixth Cause of Action for CFRA Interference, asserted by the “Adverse Employment
Action Class”;
• Seventh Cause of Action for PDL Interference, asserted by the “Pregnancy Adverse Action
Class”; including Plaintiff Moore;
• Eighth Cause of Action for Failure to Accommodate in Violation of PDLL (Gov. Code
§12945), asserted by Plaintiff Moore individually;
• Ninth Cause of Action for Failure to Engage In The Interactive Process In Violation of
PDLL, asserted by Plaintiff Moore individually;
• Tenth Cause of Action Sex/Pregnancy Discrimination In Violation of Gov. Code §
12940(a), asserted by the “Pregnancy Adverse Action Class”, including Plaintiff Moore.
VIII. CONCLUSION
The settlement is fair, reasonable and substantially beneficial to the class, taking into
account the strength of Plaintiffs’ case, the risk, expense, complexity and the likely duration of
further litigation. It is not a product of fraud or collusion. For the foregoing reasons, Plaintiffs
request that the Court enter the attached proposed Order granting final approval of the Settlement.
Dated: January 20, 2020 FELDMAN BROWNE OLIVARES, APC
By:
LEE R. FELDMAN
ALICIA OLIVARES
Attorneys for Plaintiffs,
DANESSA VALENTINE and JALISA
MOORE