Emetoh v. FedEx Freight, Inc., No. 4:2017cv07272 - Document 89 (N.D. Cal. 2020)

Court Description: ORDER GRANTING APPROVAL OF CLASS ACTION SETTLEMENT; GRANTING IN PART MOTION FOR ATTORNEYS FEES COSTS AND SERVICE AWARDS; JUDGMENT by Judge Yvonne Gonzalez Rogers granting 80 Motion for Settlement. (fs, COURT STAFF) (Filed on 10/22/2020)

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Emetoh v. FedEx Freight, Inc. Doc. 89 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 THEODORE E. EMETOH, ON BEHALF OF HIMSELF AND, ALL OTHERS SIMILARLY SITUATED, Plaintiff, 8 vs. United States District Court Northern District of California 9 10 FEDEX FREIGHT, INC, 11 Defendant. Case No. 17-CV-7272-YGR ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; GRANTING IN PART MOTION FOR ATTORNEYS FEES, COSTS, AND SERVICE AWARDS; JUDGMENT Dkt. No. 80 12 13 The Court previously granted a motion for preliminary approval of the parties’ Class Action 14 Settlement in this matter on February 14, 2020 (“Preliminary Approval Order”). (Dkt. No. 77.) As 15 directed by the Court’s preliminary approval order, and subsequent extension, on August 25, 2020, 16 filed their unopposed motion for final settlement approval. (Dkt. No. 80.) The Court held a hearing 17 on September 29, 2020. 18 Having considered the motion briefing, the terms of the Settlement Agreement, the 19 objections and response thereto, the arguments of counsel, and the other matters on file in this 20 action, the Court GRANTS the motion for final approval. The Court finds the settlement fair, 21 adequate, and reasonable. The provisional appointments of the class representative(s) and class 22 counsel are confirmed. 23 The Motion for Attorneys’ Fees, Costs, and Incentive Awards is GRANTED IN PART. The 24 Court ORDERS that FedEx Freight, Inc. shall pay a settlement amount of $3,250,000.00, which 25 amount includes $812,500.00 in attorneys’ fees and $14,269.58 in litigation costs to class counsel, 26 and a $7,500.00 incentive award to the class representative and named plaintiff, Theodore E. 27 Emetoh. 28 Dockets.Justia.com 1 2 I. BACKGROUND A. Procedural History Plaintiff filed the putative class action complaint on December 21, 2017 against defendant 3 FedEx Freight, Inc. alleging, in summary, that defendant failed to pay him and the class members for 4 all hours worked and at the correct rate of pay; provide them with compliant meal periods and rest 5 breaks; reimburse them for all necessary expenses; provide them with compliant wage statements; 6 and pay their final wages on time. Plaintiff also alleged that defendant violated statutes subjecting 7 them to liability under the California Unfair Competition Law (“UCL”); and violated the California 8 Labor Code Private Attorneys General Act of 2004, as amended (“PAGA”) (Lab. Code §§ 2698 et 9 seq.). Defendant denied plaintiff’s allegations in their entirety, denied any liability, and further 10 denied that, for any purpose, other than settling, the action is appropriate for class action treatment. 11 United States District Court Northern District of California The parties reached a settlement prior to class certification with the assistance of an 12 experienced mediators Hon. Stephen Sundvold and Tripper Ortman. The Settlement Agreement, 13 attached hereto as Exhibit A, the terms of which are incorporated herein unless specially stated 14 otherwise, defines the class as: 15 [A]ll persons who have worked for Defendant as non-exempt, hourlypaid Road Drivers, City Drivers, or Driver Apprentices in California at any time during the Class Period. 16 17 18 (Agreement ¶ 1.4.) The Class Period “means from November 14, 2013 through the date of 19 Preliminary Approval (not earlier than December 1, 2019), except that for Road Drivers, the 20 settlement class period for all but the cell phone reimbursement claim begins on January 1, 2016” 21 (“the Settlement Class”). (Agreement ¶ 1.6.) 22 In its Preliminary Approval Order, the Court conditionally certified the Settlement Class 23 and provisionally appointed Shaun Setareh and William M. Pao of the Setareh Law Group as 24 Class Counsel and plaintiff Theodore A. Emetoh as class representative. 25 B. 26 Under the terms of the Settlement Agreement, defendant will pay $3,250,000 into a gross 27 Terms of the Settlement Agreement common settlement fund, without admitting liability. This amount includes attorneys’ fees and 28 2 1 costs, the cost of class notice and settlement administration, the class representative’s service award, 2 and the PAGA payment. The PAGA Payment was defined as: 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 …One Hundred and Twelve Thousand Five Hundred U. S. Dollars ($112, 500. 00) of the Gross Settlement Amount to be allocated to claims under the Private Attorneys General Act of 2004, which includes Eighty Four Thousand Three Hundred Seventy Five U. S. Dollars ($84, 375. 00) being awarded to the State of California, subject to Court approval, and Twenty Eight Thousand One Hundred Twenty Five U. S. Dollars ($28, 125. 00) being awarded to Qualified Claimants, divided pro-rata based upon the Qualified Claimants' number of Workweeks during the PAGA Period of November 9, 2016 through the date of Preliminary Approval, by including that sum in the Net Settlement Amount, subject to Court approval. The Parties acknowledge and agree that for purposes of PAGA and the Final Judgment, all Class Members were allegedly aggrieved in the same manner pursuant to Cal. Lab. Code 2698 et seq. in that each Class Member allegedly suffered at least one violation for which PAGA provides an available remedy. In light of the binding nature of a PAGA judgment on non-party employees pursuant to Arias v. Superior Court of San Joaquin County (Dairy), 46 Cal.4th 969 (2009), and Cardenas v. McLane Foodservice, Inc., 2011 WL 379413 at *3 (C.D. Cal. Jan. 31, 201 1), individuals otherwise meeting the definition of Class Members who exclude themselves from the Class pursuant to Section 6. 5. 3 and were employed during the PAGA Period shall receive a payment for the amount of each such individual's estimated share of the PAGA Payment that was included by the Settlement Administrator in calculating the Claim Amount. (Agreement ¶ 1.25.) However, the fund is exclusive of the employer’s share of payroll taxes. 1. Attorneys’ Fees and Costs Under the Settlement Agreement, Plaintiff's counsel agreed to seek no more than 33 1/3 19 percent of the Gross Settlement Award or $1,082,250 in attorneys’ fees and no more than $20,000 in 20 litigation costs. The common settlement fund also includes a provision for $35,000 in settlement 21 administration costs; and up to $7,500 to be paid to the class representative as an enhancement 22 payment in exchange for a general release of all claims against defendant. 23 24 2. The Settlement Agreement anticipated 3,020 class members each receiving a pro rata share 25 of the settlement. 26 3. 27 28 Class Relief Remainder The Settlement Agreement provides that any residue funds will be distributed to the State of California pursuant to California’s Unclaimed Property Law, Code of Civil Proc. (C.C.P.) § 1500, et 3 1 seq. and specifically as unclaimed intangible property and/or wages within the meaning of C.C.P. § 2 1513 (4)& (7) and subject to distribution pursuant to Court order pursuant to C.C.P. §1519. 5. 3 4. In exchange for the settlement awards, class members will release defendant claims arising 4 5 from the operative complaint. (Settlement Agreement at ¶ 6.12.) 6 C. 7 Pursuant to the Settlement Agreement, the Court appointed Simpluis to administer the fund Class Notice and Claims Administration 8 and to contact the class members in the manner set forth therein and including the attachments 9 contained within the Preliminary Approval Order. 10 United States District Court Northern District of California Class Member Release II. FINAL APPROVAL OF SETTLEMENT 11 A. 12 A court may approve a proposed class action settlement of a class only “after a hearing and Legal Standard 13 on finding that it is fair, reasonable, and adequate,” and that it meets the requirements for class 14 certification. Fed. R. Civ. P. 23(e)(2). In reviewing the proposed settlement, a court need not 15 address whether the settlement is ideal or the best outcome, but only whether the settlement is fair, 16 free of collusion, and consistent with plaintiff’s fiduciary obligations to the class. See Hanlon v. 17 Chrysler Corp., 150 F.3d 1011, 1027 (9th Cir. 1998). The Hanlon court identified the following 18 factors relevant to assessing a settlement proposal: (1) the strength of the plaintiff’s case; (2) the risk, 19 expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action 20 status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery 21 completed and the stage of the proceeding; (6) the experience and views of counsel; (7) the presence 22 of a government participant; and (8) the reaction of class members to the proposed settlement. Id. at 23 1026 (citation omitted); see also Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 24 2004). 25 Settlements that occur before formal class certification also “require a higher standard of 26 fairness.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000). In reviewing such 27 settlements, in addition to considering the above factors, a court also must ensure that “the 28 settlement is not the product of collusion among the negotiating parties.” In re Bluetooth Headset 4 1 Prods. Liab. Litig., 654 F.3d 935, 946-47 (9th Cir. 2011). 2 B. 3 1. of the class members proffered through this settlement (“Settlement Class”). With respect to numerosity under Rule 23(a)(1), the Settlement Class includes 2,952 6 United States District Court Northern District of California 7 The Settlement Class Meets the Prerequisites for Certification The Court finds that the prerequisites of Rule 23 have been satisfied purposes of certification 4 5 Analysis members, making it so numerous that joinder of all members is impracticable. 8 Rule 23(a)(2) commonality requires “questions of fact or law common to the class,” though 9 all questions of fact and law need not be in common. Hanlon, 150 F.3d at 1026. The focus of this 10 action is common to all class members, namely whether FedEx failed to pay all wages owed and 11 failed to reimburse business expenses to certain “California Road Drivers, City Drivers, or Driver 12 Apprentices,” including pay for missed meal and rest periods and pay for other work time as well as 13 reimbursement for use of personal cellular phones. Rule 23(a)(3) requires that the plaintiff show that “the claims or defenses of the 14 15 representative parties are typical of the claims or defenses of the class.” Plaintiff and members of 16 the Settlement Class were all California Road Drivers, City Drivers, or Driver Apprentices during 17 the relevant time period making plaintiff’s claims typical of class members. With respect to Rule 23(a)(4), the Court finds the representative parties and class counsel 18 19 have fairly and adequately represented the interests of the Class. No conflicts of interest appear as 20 between plaintiff and the members of the Settlement Class. Class Counsel have demonstrated that 21 they are skilled in this area of the law and therefore adequate to represent the Settlement Class as 22 well. 23 The Settlement Class further satisfies Rule 23(b)(3) in that common issues predominate and 24 “a class action is superior to other available methods for fairly and efficiently adjudicating” the 25 claims here. 26 27 28 2. Adequacy of Notice and Plan of Allocation A court must “direct notice [of a proposed class settlement] in a reasonable manner to all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). “The class must be 5 United States District Court Northern District of California 1 notified of a proposed settlement in a manner that does not systematically leave any group without 2 notice.” Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 624 (9th Cir. 1982). Adequate 3 notice requires: (i) the best notice practicable; (ii) reasonably calculated, under the circumstances, to 4 apprise the Class members of the proposed settlement and of their right to object or to exclude 5 themselves as provided in the settlement agreement; (iii) reasonable and constitute due, adequate, 6 and sufficient notice to all persons entitled to receive notice; and (iv) meet all applicable 7 requirements of due process and any other applicable requirements under federal law. Phillips 8 Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). Due process requires “notice reasonably 9 calculated, under all the circumstances, to apprise interested parties of the pendency of the action 10 and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr. 11 Co., 339 U.S. 306, 314 (1950). 12 The Court approved the parties’ proposed notice procedures when it granted preliminary 13 approval. Pursuant to those procedures, the Class Administrator provided class members with a 14 Class Notice Packet mailed to all class members based upon last-known address provided by 15 defendants. The packet included the long-form notice and a data dispute form which provided the 16 class member with a rough calculation of their estimated portion of the settlement based on the 17 business records of the defendant and the option of disputing the same. 18 The class is now estimated to have 2,980 members. Of these class members, twenty-four 19 packets were returned as undeliverable and reasonable follow-up efforts were not successful. 20 Moreover, four timely completed opt out forms, for a rate of 0.13 percent and an adjusted class 21 member size of 2,976. 22 23 24 Based upon the foregoing, the Court finds that the Settlement Class has been provided adequate notice. After deductions from the common fund for fees, costs, and service enhancement awards, 25 approximately $2,290,625 will remain to be distributed among the participating class members. 26 Class members will be paid according to a pro rata share depending on the length of service and the 27 size of the class. According to the declaration of the claims administrator, the average estimated 28 6 1 payment is approximately $683.76 and the highest payment estimated at $1,368.83. The Agreement 2 provides that no amount will revert to defendant. 3 4 5 United States District Court Northern District of California 6 3. The Settlement Is Fair and Reasonable As to the Hanlon factors, the Court finds that they indicate the settlement here is fair and reasonable. Liability was contested and the settlement provides class members with a guaranteed and 7 not insubstantial monetary award. There is risk that the evidence could have diminish the value of 8 the claims. Defendant strenuously contested the allegations and would have persisted in their 9 position to prove their claimed policy of only paying once employees report any unpaid 10 compensable time. If defendant prevailed, plaintiff and the class members would not receive any 11 amount. Proceeding to trial would have been costly and recovery was not guaranteed. Further, 12 there is the possibility of protracted appeals. 13 The settlement occurred only after extensive litigation including formal and informal 14 written discovery; pre-mediation exchange of requested information (including voluminous 15 payroll and time clock data), and communications. Defendant also provided class counsel with 16 nearly 2,000 pages of documents and video footage from driver trucks, including versions of 17 personnel and payroll policies, contact information for putative class, and records reflecting hours 18 worked and wages paid. Defendant also served written discovery and deposed plaintiff. Counsel 19 for both parties are highly experienced. The record does not indicate collusion or self-dealing. 20 21 The Settlement Agreement appears to have been the product of arm’s length and informed negotiations. The relief provided for the Class appears to be adequate, taking into account: 22 (i) the costs, risks, and delay of trial and appeal; 23 (ii) the effectiveness of any proposed method of distributing relief to the class, including the 24 method of processing class-member claims; and 25 (iii) the terms of any proposed award of attorney's fees, including timing of payment. 26 Moreover, the Settlement Agreement appears to treat Class members equitably relative to 27 each other. 28 7 The reaction of the class was overwhelmingly positive. As noted, the Court received only 1 2 four opt-outs and no objections. “[T]he absence of a large number of objections to a proposed class 3 action settlement raises a strong presumption that the terms of a proposed class settlement action are 4 favorable to the class members.” In re Omnivision Techs., Inc., 559 F.Supp.2d 1036, 1043 (N.D. 5 Cal. 2008) (citation omitted); see also Churchill Vill., 361 F.3d at 577 (holding that approval of a 6 settlement that received 45 objections (0.05%) and 500 opt-outs (0.56%) out of 90,000 class 7 members was proper). 8 4. Notice to Government Agencies: The parties provided the required notice to federal and 9 United States District Court Northern District of California Other Findings 10 state attorneys general under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715(b). (Dkt. 11 No. 80, p. 9 of 25.) Notice occurred more than 90 days before the date of this order, as required by 12 28 U.S.C. § 1715(d). 13 5. Certification Is Granted and the Settlement Is Approved After reviewing all of the required factors, the Court finds the Settlement Agreement to be 14 15 fair, reasonable, and adequate, and certification of the settlement class to be proper. The Court 16 grants class certification to the following Settlement Class: 17 All persons who have worked for Defendant as non-exempt, hourly-paid Road Drivers, City Drivers, or Driver Apprentices in California at any time during the Class Period 18 19 20 21 22 23 24 25 26 27 The following persons are excluded from the Settlement Class: all persons who timely excluded themselves from the Settlement Class, as identified in Exhibit B hereto. III. MOTION FOR ATTORNEYS’ FEES, COSTS, AND CLASS REPRESENTATIVE AWARDS A. Attorneys’ Fees Attorneys’ fees and costs may be awarded in a certified class action under Federal Rule of Civil Procedure 23(h). Such fees must be found “fair, reasonable, and adequate” in order to be approved. Fed. R. Civ. P. 23(e); Staton v. Boeing Co., 327 F.3d 938, 963 (9th Cir. 2003). To “avoid abdicating its responsibility to review the agreement for the protection of the class, a district court must carefully assess the reasonableness of a fee amount spelled out in a class action settlement 28 8 1 agreement.” Id. at 963. “[T]he members of the class retain an interest in assuring that the fees to be 2 paid class counsel are not unreasonably high,” since unreasonably high fees are a likely indicator 3 that the class has obtained less monetary or injunctive relief than they might otherwise. Id. at 964. United States District Court Northern District of California 4 The Court analyzes an attorneys’ fee request based on either the “lodestar” method or a 5 percentage of the total settlement fund made available to the class, including costs, fees, and 6 injunctive relief. Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002). The Ninth 7 Circuit encourages courts to use another method as a cross-check in order to avoid a “mechanical 8 or formulaic approach that results in an unreasonable reward.” In re Bluetooth, 654 F.3d at 944– 9 45 (citing Vizcaino, 290 F.3d at 1050–51.) 10 Under the lodestar approach, a court multiplies the number of hours reasonably expended 11 by the reasonable hourly rate. Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016) (“[A] court 12 calculates the lodestar figure by multiplying the number of hours reasonably expended on a case 13 by a reasonable hourly rate. A reasonable hourly rate is ordinarily the ‘prevailing market rate [] in 14 the relevant community.’”). Under the percentage-of-the-fund method, courts in the Ninth Circuit 15 “typically calculate 25% of the fund as the ‘benchmark’ for a reasonable fee award, providing 16 adequate explanation in the record of any ‘special circumstances’ justifying a departure.” In re 17 Bluetooth, 654 F.3d at 942 (citing Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 18 1301, 1311 (9th Cir. 1990)). The benchmark should be adjusted when the percentage recovery 19 would be “either too small or too large in light of the hours devoted to the case or other relevant 20 factors.” Six (6) Mexican Workers, 904 F.2d at 1311. When using the percentage-of-recovery 21 method, courts consider a number of factors, including whether class counsel “ ‘achieved 22 exceptional results for the class,’ whether the case was risky for class counsel, whether counsel's 23 performance ‘generated benefits beyond the cash settlement fund,’ the market rate for the 24 particular field of law (in some circumstances), the burdens class counsel experienced while 25 litigating the case (e.g., cost, duration, foregoing other work), and whether the case was handled 26 on a contingency basis.” In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 954-55 (9th Cir. 27 2015) (quoting Vizcaino, 290 F.3d at 1047-50). “[T]he most critical factor [in determining 28 appropriate attorney’s fee awards] is the degree of success obtained.” Hensley v. Eckerhart, 461 9 1 2 Here, class counsel requests a fee award of $812,500.00 as well as costs and expenses of 3 $14,366.58. The attorneys’ fees sought amount to the 25% benchmark and reflect approximately 4 2.79 % of its lodestar totaling $333,575. Defendants does not oppose the fee request which is 5 lower than that authorized in the Settlement Agreement. 6 United States District Court Northern District of California U.S. 424, 436 (1983). The Court has reviewed the class counsel’s submission regarding its fee request. (Dkt. No. 7 81.) The hourly rates that are commensurate with their experience and with the legal market in 8 this district. Moreover, given the nature of the work performed, the Court finds the number of 9 hours to be reasonable and reasonably incurred. The Court also finds that Class Counsel 10 represented their clients with skill and diligence in obtaining the settlement for the class, taking 11 into account the possible outcomes and risks of proceeding trial. 12 13 Based on the foregoing, the Court finds an award of attorneys’ fees in the amount of $812,500.00 to be fair, reasonable, and adequate. 14 B. 15 Class counsel is entitled to reimbursement of reasonable out-of-pocket expenses. Fed. R. Costs Award 16 Civ. P. 23(h); see Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) (holding that attorneys may 17 recover reasonable expenses that would typically be billed to paying clients in non-contingency 18 matters). Costs compensable under Rule 23(h) include “nontaxable costs that are authorized by 19 law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). Here, class counsel seeks reimbursement 20 of $14,366.58 in litigation expenses and provide records that document their claim. The Court 21 finds an award of $14,269.58 is more appropriate, which reflects the request less the anticipated 22 $97.00 for CourtCall that they did not incur. This amount is reasonable, fair, and adequate. 23 C. 24 The district court must evaluate named plaintiff’s requested award using relevant factors Enhancement Award 25 including “the actions the plaintiff has taken to protect the interests of the class, the degree to 26 which the class has benefitted from those actions . . . [and] the amount of time and effort the 27 plaintiff expended in pursuing the litigation.” Staton, 327 F.3d at 977. “Such awards are 28 discretionary . . . and are intended to compensate class representatives for work done on behalf of 10 1 the class, to make up for financial or reputational risk undertaken in bringing the action, and, 2 sometimes, to recognize their willingness to act as a private attorney general.” Rodriguez v. West 3 Publishing Corp., 563 F.3d 948, 958-959 (9th Cir. 2009). The Ninth Circuit has emphasized that 4 district courts must “scrutiniz[e] all incentive awards to determine whether they destroy the 5 adequacy of the class representatives.” Radcliffe v. Experian Info. Solutions, 715 F.3d 1157, 1163 6 (9th Cir. 2013). Here, the plaintiff came forward to represent the interests of approximately 3,000 others, United States District Court Northern District of California 7 8 despite the relatively small amounts at issue. Plaintiff was deposed, reviewed documents, and 9 assisted with discovery requests, regularly corresponded with counsel telephonically and by email, 10 and took the substantial risk of litigation especially given the employment context. Thus, the Court 11 approves the $7,500 enhancement award for plaintiff Theodore Emetoh. 12 IV. CONCLUSION 13 Based upon the foregoing, the motion for final approval of class settlement is GRANTED. 14 The motion for attorneys’ fees, costs, and service awards is GRANTED IN PART as follows: Class 15 Counsel is awarded $812,500.00 in attorneys’ fees and $14,269.58 in litigation costs. Plaintiff 16 Theodore Emetoh is granted an enhancement award of $7,500.00. 17 Without affecting the finality of this order in any way, the Court retains jurisdiction of all 18 matters relating to the interpretation, administration, implementation, effectuation and enforcement 19 of this order and the Settlement. 20 IT IS HEREBY ORDERED, ADJUDGED AND DECREED that final judgment is ENTERED in 21 accordance with the terms of the Settlement, the Order Granting Preliminary Approval of Class 22 Action Settlement filed on February 14, 2020, and this order. This document will constitute a final 23 judgment (and a separate document constituting the judgment) for purposes of Rule 58, Federal 24 Rules of Civil Procedure. 25 The parties shall file a post-distribution accounting in accordance with this District’s 26 Procedural Guidance for Class Action Settlements no later than April 23, 2021. The Court SETS a 27 compliance deadline on April 30, 2021 on the Court’s 9:01 a.m. calendar to verify timely filing of 28 the post-distribution accounting. 11 1 This terminates Docket No. 80. 2 IT IS SO ORDERED. 3 Dated: October 22, 2020 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 EXHIBIT A DocuSignEnvelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A SHAUN SETAREH, Bar No. 204514 shaun a)setarehlaw. com WILLIAM PAO, Bar No. 219846 william a^setarehlaw. com ALEXANDRAMCINTOSH,BarNo. 320904 alex a)setarehlaw. com SETAREHLAW GROUP 315 S. BeverlyDr., Suite 315 Beverly Hills, CA 90212 Telephone: 310. 888-7771 Facsimile: 310. 888-0109 Attorneys for Plaintiff THEODORE A. EMETOH KEITHA. JACOBY,BarNo. 150233 k'acob littler. com LITTLERMENDELSON,P.C. 10 2049 Century Park East, 5th Floor 11 LosAngeles, CA 90067.3107 Telephone: 310. 553-0308 Facsimile: 310. 553-5583 12 13 14 15 SOPHIA BEHNIA, Bar No. 289318 sbehnia littler. com LITTLERMENDELSON,P.C. 333 Bush Street, 34th Floor SanFrancisco, CA 94104 Telephone: 415.433-1940 Facsimile: 415. 399-8490 16 17 Additional counsel on next page 18 UNITED STATES DISTRICT COURT 19 NORTHERNDISTRICTOF CALIFORNIA 20 ^ THEODOREA. EMETOH,onbehalfof himself, all others similarly situated, 24 25 CLASS ACTION Plaintiff, 22 23 Case No. 4:17-CV-07272-YGR FIRST AMENDED JOINT STIPULATION OF SETTLEMENT AND RELEASE V. FEDEXFREIGHT, INC. anArkansas corporation; and DOES 1 through 50, inclusive, Defendant. 26 27 28 LITTL^cM.ENDE^SlNip'c' 5th Floor Los Angeles. CA 90067. 3*07 310. 553. C3aB FIRST AMENDED JOINT STIPULATION OF SETTLEMENT AND RELEASE CASENO.: 4:17-CV-07272-YGR DocuSign Envelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A 1 LINDANGUYENBOLLINGER,BarNo. 289515 2 LITTLER MENDELSON, P. C. Ibollin er littler. com 50 West San Fernanda Street, 7th Floor 3 4 5 SanJose,CA 95113 Telephone: 408. 998-4150 Facsimile: 408.288-5686 SANDRA C. ISOM, Bar No. 157374 scisom fedex.com 6 FEDEX FREIGHT, INC. 7 Memphis, TN 3 8120 Telephone: 901. 434-8526 1715 Aaron Brenner Drive, Ste. 600 8 Facsimile: 901. 468-1726 9 Attorneys for Defendant 10 FEDEXFREIGHT,INC. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UTTL^. cME,N,DE, ^ZN.i p-c- FIRSTAMENDED JOINT '. ^5?HL^',., STIPULA'tTONOF SETTLEMENT 5th Flc , Los Angeles, CA 9CDG7. 3107 il0. 553. 030a AND RELEASE CASE NO. : 4:17-CV-07272-YGR DocuSignEnvelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A 1 This Joint Stipulation of Settlement and Release ("Agreement") is made and entered into 2 between Plaintiff Theodore A. Emetoh ("Plaintiff or "Class Representative"), individually and on 3 behalf of all others similarly situated, including current and former alleged aggrieved employees, 4 ("Class Members") and Defendant FedEx Freight, Inc. ("Defendant" or "FedEx") (collectively, the 5 "Parties"). 6 7 8 9 10 11 12 13 14 15 16 17 18 19 1. DEFINITIONS. The following terms, when used in this Agreement, have the following meanings: 1. 1 "Action" means the above stated action Theodore A. Emetoh v. FedEx Freight, Inc., Case No. 4:17-CV-07272-YGR, currently pending in United States District Court for the Northern District of California. 1. 2 "Agreement" means this Joint Stipulation of Settlement and Release, which includes the PAGA Settlement, except where noted. 1. 3 "Claim Amount" means an individual Class Member's potential allocation of the Net Settlement Amount, as defined in Section 1. 22. 1. 4 "Class" or "Class Member(s)" means all persons who have worked for Defendant as non-exempt, hourly-paid Road Drivers, City Drivers, or Driver Apprentices in California at any time during the Class Period. There are approximately 3, 020 Class Members. 1. 5 "Class Counsel" means Shaun Setareh, William Pao, and Alexandra Mclntosh of the Setareh Law Group. 1. 6 "Class Period" means from November 14, 2013 through the date of Preliminary 20 Approval, except that for Road Drivers, the settlement class period for all but the cell phone 21 reimbursementclaimbeginsonJanuary 1, 2016. 22 1.7 "ClassRepresentative"is PlaintiffTheodoreA. Emetoh. 23 1. 8 "Class Representative's Released Claims" means any and all claims, obligations, 24 demands, actions, rights, causes of action, and liabilities, against the Released Parties (as defined in 25 Section 1. 35), of whatever kind and nature, character, and description, whether in law or equity, 26 whether sounding in tort, contract, federal, state and/or local law, statute, ordinance, regulation, 27 common law, or other source of law, whether known or unknown, and whether anticipated or 28 unanticipated, including unknown claims covered by California Civil Code § 1542, as quoted in LITTL^SEi.s0^f'c- ^^!^1. Sth Floor Loa Angeles. CA S3QB7. 310T 310. 553. C30a FIRST AMENDED JOINT STIPULATK)N OF SETTLEMENT AND RELEASE CASENO.: 4:17-CV-07272-YGR DocuSign Envelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A 1 Section 1. 34, by the Class Representative, arising from the beginning of time to the date of signing of 2 this Agreement, for any type of relief that can be released as a matter of law, including, without 3 limitation, claims for wages, damages, unpaid costs, penalties (including civil and waiting time 4 penalties), liquidated damages, punitive damages, interest, attorneys' fees, litigation costs, and 5 restitution or equitable relief. The Class Representative's Released Claims exclude his claims pending 6 in Theodore Emetoh, an individual v. FedEx Freight, Inc., an Arkansas corporation; and DOES 1 7 through 50, inclusive, pending in the United States District Court for the Northern District of 8 California, Case No. 3:18-cv-02898-CRB, claims for workers' compensation or unemployment 9 insurance benefits, or any claims which cannot be released as a matter oflaw (the "Excluded Claims"). 10 11 1. 9 "Complaint" means the SecondAmended Class Action Complaint filed with this Court by Plaintiffon August 16, 2018 attachedhereto as ExhibitA, andincorporatedhereinby reference. 12 1. 10 "Court" means the United States District Coiirt for the Northern District of California. 13 1. 11 "Data" are the Class Members' dates of employment and number of Workweeks as a Class Member during the Class Period, as determined by Defendant's business records. 15 16 17 18 19 20 21 22 23 1. 12 "DataDispute" is a Class Member's challenge to their dates ofemployment or number ofWorkweeks set forth in the DataDispute Form in their Notice Packet. 1. 13 "Data Dispute Deadline" shall mean forty-five (45) calendar days from the mitial mailingofthe NoticePacket. This is also the deadline for exclusions andobjections to the Agreement. 1. 14 "Data Dispute Form" shall mean the document substantially in the fonn attached hereto as Exhibit B. 1. 15 "Defendant"shallmeanFedExFreight, Inc. 1. 16 "Defendant's Counsel" means KeithA. Jacoby, SophiaBehma, andLindaN. Bollinger ofLittler Mendelson, P.C., and Sandra C. Isom ofFedEx Freight, Inc. 1. 17 "EnhancementPayment" means the amount approved by the Court to be paid to the Class Representative, not to exceed $7, 500. 00, in addition to his Claim Amount as a Qualified 25 Claimant, in recognition ofhis efforts in coming forward asa Class Representative. The Enhancement 26 Payment shall be considered non-wages for which an appropriate IRS Form 1099 will be issued to the 27 Class Representative. 28 LITTL,E.R. cME,NSEp^^, i p'c- FIRSTAMENDED JOINT ..T.31H1"",., sTipuLA'iToNOF SETTLEMENT 511) Floor igeles, CA 90067. 3107 310. 5S3. 3308 AND RELEASE 4. CASENO. 4:17-CV-07272-YGR DocuSign Envelope ID:09A67551-6A8E-42B1-B680-ACDDCA54449A 1 1. 18 "Final Approval Date" means the latest ofthe following dates: (i) if nd Class Member 2 intervenes or files an objection to the Agreement on or prior to the Court entering an order granting 3 final approval of the Agreement, then the day after the Final Judgmentbecomes final (meaning the 4 expiration of the deadline to seek any type of appellate review); (ii) if there is an objection to the 5 Agreementby a Class Member, or a Class Member intervenes, on or prior to the datethe Court enters 6 anordergrantingfinal approvaloftheAgreement, thenonthe dateaffinalresolution ofthatobjection 7 8 9 10 11 12 13 14 15 or the exhaustionofany appellate rights ofthat objector or any intervener, resulting in finaljudicial approval ofthe Agreement, and entry of a non-reviewablejudgment; or (iii) if an appeal, review or writ is sought fi-omthejudgment, the day afterthejudgment is affirmedor the appeal, reviewor writ is dismissed or denied, and the judgment is no longer subject to further judicial review. 1. 19 "FinalApproval andFairness Hearing" means the hearing set bythe Court to (a) review the Agreement and determine whether the Court should give final approval, (b) consider any timely objections made pursuant to Section 6.5.7 of this Agreement, and all responses by the Parties, (c) consider the request for attorneys' fees and expenses submitted by Class Counsel, (d) consider the Settlement Administrator's Settlement Administration Costs, and (e) consider the Class Representative's application for an Enhancement Payment. 16 1. 20 "Final Judgment" shall mean the order granting final approval of the Agreement and 17 finaljudgmententeredbytheCourt. TheFinalJudgmentshallconstitutea finaljudgmentofthePAGA 18 Settlement for purpose of enforcing the rule announced in Arias v. Superior Court of San Joaquin 19 County (Dairy), 46 Cal. 4th 969 (2009). 20 1. 21 "Gross Settlement Amount" is the sum of Three Million Two Hundred and Fifty 21 Thousand U. S. Dollars ($3, 250, 000. 00), which represents the total amount payable to the Settlement 22 Administrator to be held in tmst in the QualifiedSettlement Fund for this Agreementby Defendant, 23 and includes without limitation the Settlement Administration Costs, attorneys' fees, litigation costs, 24 the Class Representative Enhancement Payment, and the PAGA Payment. The Gross Settlement 25 26 27 Amount is exclusive of the employer's share of payroll taxes. 1. 22 "Net Settlement Amount" is the remaining portion of the Gross Settlement Amount available for distribution to Qualified Claimants aflter deduction of Court approved attorneys' fees and 28 LITTL,ER.Sf-S, p c' FIRST AMENDED JOINT . L. a<",3HLE^',., -3'°s""°° STIPULATTONOF SETTLEMENT AND RELEASE CASENO. 4:17-CV-07272-YGR DocuSignEnvelope ID:09A67551-6A8E-42B1-B680-ACDDCA54449A 1 litigation costs. Settlement Administration Costs, the Eiihancement Payment to the Class 2 Representative, and the State of California's portion of the PAGA Payment. 3 4 1.23 "Notice of Settlement" means the document substantially in the form attached hereto as Exhibit C. 5 1. 24 "Notice Packet" means the Notice of Settlement and Data Dispute Form. 6 1. 25 "PAGA Payment" means One Hundred and Twelve Thousand Five Hundred U. S. 7 8 9 10 11 Dollars ($112, 500. 00) of the Gross Settlement Amount to be allocated to claims under the Private Attorneys General Act of 2004, which includes Eighty Four Thousand Three Hundred Seventy Five U. S. Dollars ($84, 375. 00) being awarded to the State of California, subject to Court approval, and Twenty Eight Thousand One Hundred Twenty Five U. S. Dollars ($28, 125. 00) being awarded to QualifiedClaimants, dividedpro-rata based upon the Qualified Claimants' number of Workweeks during the PAGA Period ofNovember 9, 2016 through the date ofPreliminary Approval, by including 12 13 14 that sum in the Net Settlement Amount, subject to Court approval. The Parties acknowledge and agree that for purposes of PAGA and the Final Judgment, all Class Members were allegedly aggrieved in the same manner pursuant to Cal. Lab. Code 2698 et seq. in that each Class Member allegedly suffered 15 at least oneviolation for whichPAGAprovides anavailableremedy. In light ofthe bindingnature of 16 a PAGAjudgment on non-party employees pursuant to Arias v. Superior Court of San Joaquin County 17 (Dairy), 46 Cal.4th 969 (2009), and Cardenasv. McLane Foodservice, Inc., 2011 WL 379413 at *3 18 (C.D. Cal. Jan.31, 2011), individualsotherwisemeetingthedefinitionofClassMemberswhoexclude 19 themselves from the Class pursuant to Section 6. 5. 3 and were employed during the PAGA Period shall 20 receive a payment for the amount of each such individual's estimated share of the PAGA Payment 21 that was includedby the Settlement Administrator in calculating the Claim Amount. 22 23 24 25 26 27 1. 26 "PAGA Settlement" means the agreement to resolve the PAGA representative action pursuant to Cal. Lab. 2698 et seq., for which the PAGA Parent provides consideration. 1.27 "Parties"means the Plaintiffand Defendant. 1.28 "Payroll Settlement Check" means the wageportion ofthe Qualified Claimant's Claim Amount. 1.29 "Plaintiff is Theodore A. Emetoh. 28 LITTLER MENDELSON, P. C. 2049 Cenlu'y Park Esal 51h Floor Los Ange!es, CA 90087. 3107 310. 553. 03CB FIRSTAMENDEDJOINT STIPULATION OF SETTLEMENT AND RELEASE 6. CASE NO. 4:17-CV-07272-YGR DocuSignEnvelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A 1 1. 30 "Preliminary Approval Date" means the date the Court approves the Agreement, and 2 the exhibitsthereto, andenters anorderproviding for noticeto the Class, anopportunityto opt out of 3 the Class or to submit timely objections to the Agreement (excluding the PAGA Settlement), a 4 procedure for submitting Data Dispute Forms, and setting a hearing on the fairness of the terms of 5 settlement, including approval of attorneys'1 fees and costs. 6 1. 31 "Preliminary Approval Order" means the document substantially in the form attached 7 hereto as ExhibitD. The Partieswilljointly request that any order grantingpreliminaryapproval not 8 9 10 11 be enteredbefore December 1, 2019. 1. 32 "QSF" or "Qualified Settlement Fund" means the Qualified Settlement Fund set up by the Settlement Administrator for the benefit ofthe Qualified Claimants and from which the settlement payments shall be made. The QSF shall be an interest-bearing escrow account established by the Settlement Administratorto holdthe Gross SettlementAmount from the time the Defendantdeposits the funds pursuant to Section 6. 11 herein until such funds are fully and fmally distributed. The QSF is intended to be a Qualified Settlement Fund within the meaning ofInternal Revenue Code section 468B ^5 and Treasury Regulation section 1.468B-1, and the Settlement Administrator shall be solely ^^ responsible for filing tax returns for the QSFandpaying from the QSFanytaxes owedwithrespect to j-7 same. In addition, the Settlement Admmistrator, and, as required, Defendant, will jointly and timely ^g make the "relation-back election" (as defined in Treasury Regulation 1.468B-1) back to the earliest 19 permitted date. Such elections shall be made in compliance with the procedures and requirements 20 contained in such regulations, provided that Defendant shall not be required to deposit any monies 21 into the QSF before the time set forth in Section 6. 11 It will be the responsibility of the Settlement 22 Administrator to timely and properly prepare and deliver the necessary documentation for signature 23 to all necessary parties, andthereafter cause the appropriate filing to occur. In fhe event it is determined 24 that the QSF is not a Qualified Settlement Fundwithin the meaning ofTreasury Regulation section 25 1.468B-1, any tax liabilities associated with such determination shall be satisfied solely from the QSF 26 without any recourse against Defendant for additional monies. 27 28 LITT^RcMEiN,D^^N.ip'c' FIRSTAMENDEDJOD^T JZ31H^'l. STIPULAITONOF SETTLEMENT ^^^". "" ANDVRELEASE^ CASENO. 4:17-CV-07272-YGR DocuSignEnvelope ID:09A67551-6A8E-42B1-B680-ACDDCA54449A 1 2 1. 33 "Qualified Claimant" means any and all Class Members who do not submit a timely and correctly completed request for exclusion, as set forth in Section 6. 5. 3. 3 1. 34 "Released Claims" means any and all claims contained in the Complaint and any 4 additional wage and hour claims that could have been brought by the Plaintiff and the Class Members 5 basedonthe factsallegedin saidComplaint, for the ClassPeriodas definedin Section 1.6 throughthe 6 Preliminary Approval Date. "Released Claims" includes any and all claims for relief, whether 7 suspected or unsuspected, which Qualified Claimants as well as all Class Members for purposes of 8 PAGArelief, as explainedin Section 1.25 have had, nowhave, or may discoverin the future against 9 the Released Parties or any ofthem for any or all claims alleged in the Complaint or which could have 10 been alleged in the Complaint based on the allegations, facts, matters, transactions or occurrences ^1 alleged therein, andshall specifically include without limiting the generality thereof: claims for missed 12 and/or unpaid meal periods and/or rest periods; failure to reimburse business expenses; failure to pay all wages owed (including without limitation, regular wages, the regular rate of pay, minimum wage, 14 15 16 17 18 19 20 21 22 23 overtime pay, double time pay, premium pay or otherwise properly calculate overtime or the regular rate of pay, failure to pay employees for all hours worked, and/or off-the-clock claims); failure to properly pay all wages upon termination; any claim for failure to keep and/or maintain accurate records; imlawful deductions; failure to timely pay wages owed; claims for failure to provide accurate, itemized wage statements; waiting time penalties; and claims for PAGA penalties and/or unfair competition claims basedon the foregoing. The Releaseofthe foregoingclaims extendsto all theories ofrelief regardless of whether the claim is, was, or could have been alleged as separate claims, causes ofaction, lawsuits or basedon other theories ofrelief, whetherunder Californialaw, federal law, state law or common law (including, without limitation, as violations of the California Labor Code, the California Wage Orders, applicable regulations, California's Business and Professions Code section 24 17200 or under California's Private Attorneys General Act, and the Fair Labor Standards Act). 25 26 27 28 LITTL^cMEiNSEpl^.N, p-c' "Released Claims" includes all types of relief available for the above-referenced claims, including, without limitation, any claims for damages, restitution, losses, penalties, fines, liens, attorneys' fees, costs, expenses, debts, interest, injunctive relief, declaratory relief, or liquidated damages. "Released FIRSTAMENDED JOINT . STIPULATION OF SETTLEMENT AND RELEASE 8. CASENO.4:17-CV-07272-YGR DocuSign Envelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A ^ Claims" also includes an express waiver ofall benefits under section 1542 ofthe California Civil Code 2 as to the Released Claims only, as well as under any other federal or state statutes or coimnon law 3 principles of similar effect. Section 1542 provides as follows: 4 5 6 7 A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN fflS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. g The Class Representative's and the Class Members' Section 1542 waiver releases all claims, known 9 orunknown,withinthedefinitionofReleasedClaims,irrespectiveofthe factualorlegalbasisforsuch 10 claims. This 1542 waiver was a specifically negotiated term, and was specifically taken into 11 consideration in arriving at the Gross Settlement Amount. Class Members, including Class 12 Representatives, will be infonned in the Notice of Settlement and will be deemed to understand that 13 Section 1542 gives them the right not to release existing claims of which they are not now aware, 14 unlesstheyvoluntarilychooseto waivethisright. Havingbeensoinformed.ClassMembers,including 15 the Class Representative, will be deemed to have voluntarily waived the rights described in Section 16 1542, and elected to assume all risks for claims that now exist in their favor, known or imknown, that ^ fall within the scope ofthe Released Claims. The Final Judgment shall expressly provide that it covers 1^ andbarseachandevery Qualified Claimant aswell asall Class Members forpurposes ofPAGA relief, as explained in Section 1. 25, from asserting any Released Claims in the future. 20 21 22 23 24 1. 35 "Released Parties" means Defendant, its past or present parents, subsidiaries, and officers, directors, shareholders, managers, employees, agents, attorneys, legal representatives, successors, assigns, and predecessors in interest, affiliates, related entities, third-party staffing agencies, and any individual or entity which could be jointly liable with Defendant. 1. 36 "Settlement Administration Costs" means reasonable fees and expenses incurred by the Settlement Administrator, not to exceed $35, 000. 00, as a result of the procedures and processes 26 expressly required by this Agreement, and shall include all costs of administering the Agreement, 27 including, but not limited to, all tax document preparation and obligations related to the QSF, custodial 28 UTTL,ER. cME,NDE^lN;p c- FIRSTAMENDED JOINT . ...21",.C^H^rt- 51h Floor Los Angelas, CA SOOG7. 3107 310. 553. 030S STffULA'TTONOF SETTLEMENT AND RELEASE CASENO. 4:17-CV-07272-YGR DocuSign Envelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A 1 fees, and accounting fees incurred by the Settlement Administrator; all costs and fees associated with 2 preparing, issuingandmailing any and all notices ofsettlement andother settlement correspondence 3 to ClassMembers and/orQualifiedClaimants;all costs andfees associatedwithcommumcatingwith 4 Class Members, Class Counsel, and Defendant's Counsel regarding settlement; all costs and fees associated with computing, processing, reviewing, and paying the Claim Amounts, and resolving disputed claims; all costs and fees associated with calculating tax withholdings and payroll taxes, 7 8 9 10 11 workingwith Defendantso that relatedpayments to federal and state tax authorities canbe made, and printing tax forms relating to payments made under the settlement; all costs and fees associated with preparing any tax returns and any other filings required by any governmental taxing authority or agency;all costsandfeesassociatedwithpreparinganyothernotices,reports, orfilingsto beprepared in the course ofadministeringClaim Amounts; andanyother costs and fees incurredand/orcharged by the SettlementAdministratorin connectionwith the executionofits dutiesunderthis Stipulation. 12 13 14 1. 37 "Settlement Administrator" means and refers to the mutually agreed upon third-party claimsadministratorthatwill beresponsiblefor establishing,maintaining,andadmmisteringthe QSF, aswell asthe administrationofthe Agreement andrelatedmatters as describedin this Agreement. 15 16 1. 38 "Settlement Payment" means each Qualified Claimant's share of the Net Settlement Amountplus, whereapplicable,eachClass Member's shareofthe PAGAPayment. 17 1. 39 "Workweeks" means each week (Sunday through Saturday) during which Class ^ Members wereemployed, butexcludingweeksduringwhichthe ClassMemberwasnotperforming drivingduties. There areno partial or fractionalWorkweeks.Thus, if a Class Memberperfbnnedany driving duties during any part of a Sunday through Saturday week, that week shall count as a Workweek. Thenumber ofWorkweekswill be detemiinedby Defendant'srecords. 22 23 2. THE CONDITIONAL NATURE OF THIS STIPULATION. 2. 1 This Agreement and all associated exhibits or attachments are made for the sole 24 purpose of settling the above-captioned lawsuit, which is entitled Theodore A. Emetoh v. FedEx 25 Freight Inc., Case No. 4:17-CV-07272-YGR. This Agreement is made in compromise of disputed 26 claims. Because the Parties desire to settle this Action on a class-wide basis pursuant to Federal Rule 27 of Civil Procedure 23, and as a representative action pursuant to Cal. Lab. Code §2699(1), this 28 LITTI;E.R cME,N?^^.N;p-c- FIRSTAMENDED JOINT HL"^',., STiPULA'tTONOF SETTLEMENT 51h Floi Los Angeles. CA 9CC67.3107 i1C. 553. D30B AND RELEASE 10. CASE NO. 4:17-CV-07272-YGR DocuSign Envelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A 1 Agreement must receive preliminary and final approval by the Court. Accordingly, the Parties enter 2 into this Agreement on a conditional basis. 3 2. 2 Subject to the obligation(s) ofmutual full cooperation set forth herein, FedExmay void , 4 this this Agreement if the Court refuses to approve any economic term or term related to the scope of 5 the release, or declines to enter the Preliminary Approval Order, the Final Approval Order, or Final 6 Judgment in substantially the form submitted by the Parties, or if the Agreement does not become final 7 because ofappellate court action or due to some other voidable event described herein. The terminating 8 9 10 11 Party shall give to the other Party (through its Counsel) written notice of its decision to terminate no later thanten (10) calendardays afterreceivingnotice that one ofthe enumeratedevents has occurred. Termination shall have the following effects: 1) The Agreement shall be terminated and shall have no force or effect, and no Party shall be bound by any of its terms. 12 2) 13 14 make anypayments to any Party, Class Memberor attorney. 3) 15 16 In the event the Agreement is terminated, Defendant shall have no obligation to The Preliminary Approval Order, Final Approval Order and Final Judgment, including any order of class certification, shall be vacated. 4) hi the event this Agreement is terminated or canceled pursuant to its terms, the 17 Settlement Administrator shall refund all funds received by Defendant into the 18 QSF, and the Settlement Administration Costs incurred as of the date of 19 termination will be paid by Defendant, assuming the Defendant voided the 20 Agreement at its option. Otherwise, the Parties shall equally share such 21 Settlement Administration Costs. 22 5) The Partieswill not be deemedto havewaivedanyclaims, objections, defenses, 23 or arguments in this Action, including with respect to the issue of class 24 certification. The Parties retain and reserve these rights, and agree not to argue 25 or present any argument, and hereby waive any argument that, based on this Agreement, the other Party caimot piirsue or challenge claims, allegations and 26 f defenses in the Action, upon any procedural or factual grounds. 27 28 "^R.c"E,N,D^^.N;"c- FIRSTAMENDED JOINT ..2C.",.C^H^T.. '3"s530'" STIPULA'tTONOF SETTLEMENT AND RELEASE 11 CASENO. 4:17-CV-07272-YGR DocuSign Envelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A 6) 1 The Agreement and all negotiations, statements and proceedings relating 2 thereto shall be without prejudice to the rights ofany ofthe Parties, all ofwhom 3 shall be restored to their respective positions prior to the Agreement and 4 mediation on May 21, 2019. The Parties agree to return to mediation in good 5 faith to attempt to address the concerns of the Court, and upon reachmg an 6 agreement, submit a revised agreement to the Court. 7) 7 The Agreement shall not be admissible or offered into evidence in the Action or anyotheractionforanypurposewhatsoever. Similarly, anyconditionalclass 8 certification (obtained for any purpose) shall be void ab initio and of no force 9 or effect, and shall not be admissible in anyjudicial, administrative, or arbitral 10 II proceeding for any purpose or with respect to any issue, substantive or 11 procedural. 12 13 14 15 16 17 18 19 20 21 22 3. DESCRIPTION OF THE LITIGATION. 3. 1 Plaintiff, a former Road Driver of Defendant, brought this Action asserting the following violations: 1) Failure to Provide Meal Periods (Lab. Code §§ 204, 223, 226.7, 512 and 1198);2) Failureto ProvideRestPeriods(Lab. Code §§ 204, 223, 226.7 and 1198); 3) Failureto Pay Hourly Wages (Lab. Code §§ 223, 510, 1194, 1194. 2, 1197, 1997. 1 and 1198); 4) Failure to Indemnify (Lab. Code § 2802); 5) Failure to Provide Accurate Written Wage Statements (Lab. Code §§ 226(a)); 6) Failure to Timely Pay All Final Wages (Lab. Code §§ 201, 202 and 203); 7) Unfair Competition (Bus. & Prof. Code §§ 17200 et seq. ); and 8) Civil Penalties (Lab. Code §§ 2698 et seq.). 3. 2 Through discovery, Defendant provided Class Counsel with nearly 3, 000 pages of documents, including copies of all applicable versions of personnel and payroll policies, contact information for the putative class, and records reflecting Class Members' hours worked and wages 23 paid, amongstnumerous otherdocuments, aswell aspayroll andtime clockdatafortheputative class. 24 Defendant also served written discovery upon and deposed Plaintiff as well as several third-party 25 subpoenas. 26 3. 3 The Parties participated in two separate full-day mediations before Hon. Stephen 27 SundvoldandTripper Ortman, Esq. on January 15, 2019andMay21, 2019,respectively. TheParties 28 were able to cometo anagreementandsigneda MemorandumofUnderstandingon May21, 2019. LITTLER MENDELSON. P. O. 204fl Century Park East 5th Floor Los Angeles. CA 90067, 3107 310. 553. 0308 FLRST AMENDED JOINT STIPULATION OF SETTLEMENT AND RELEASE 12. CASENO. 4:17-CV-07272-YGR DocuSignEnvelope ID:09A67551-6A8E-42B1-B680-ACDDCA54449A 3. 4 1 This Agreement wasreached after evaluating the Parties' theories ofpotential exposure 2 for the underlying claims. The Parties also assessed appropriate discounts to the potential liability 3 based on Defendant's contentions and defenses. 3. 5 4 The Parties agree that the above-described investigation and evaluation, as well as 5 discovery and the information exchanged during the settlement negotiations, are more than sufficient 6 to assess the merits of the respective Parties' positions and to compromise the issues on a fair and » 7 8 equitable basis. 4. 4. 1 9 10 BENEFITS OF THE SETTLEMENT TO THE PROPOSED CLASS. Based on their own independent investigations and evaluations, Class Counsel are of theopinionthatthe settlementwithDefendantfor the considerationandterms setforthbelow, in view of the Class Representative's and average Class Members' claims and the risk of loss, is fair, 11 12 13 14 reasonable, and adequate in light of all known facts and circumstances, and is in the best interests of the Class. Class Counsel are also ofthe opinion that the total considerationandpayment set forth in this Agreement is adequatein light ofthe uncertainties surrounding the risk of further litigation and the defenses that Defendant has asserted and could assert. 15 4. 2 Class Counsel has weighed the monetary benefit under the Agreement to the Class 16 against the expenses and length of continued proceedings that would be necessary to prosecute the 17 Action against Defendant through trial and possible appeals. Class Counsel have also taken into 18 account the uncertain outcome and risk of any litigation, especially in complex actions such as class 19 actions, as well as the difficulties and delay inherent in such litigation. Therefore, Class Counsel has 20 determined that the Agreement is in the best interests of the Class. 21 5. 22 POSITIONOF DEFENDANT. 5. 1 Defendant denies any liability or wrongdoingof any kind associatedwith the claims 23 allegedintheAction, andfurtherdeniesthat, foranypurposeotherthansettlingthismatter,thisAction 24 is appropriate for class treatment. Defendant maintains, among other things, it has complied with 25 26 27 28 LITTLER MENDELSON. P. C. 204BCBnlury Park East 5th Floor Los Angeles. CA 90067. 3107 310. 553. 0306 Federal and California law in all aspects. Nothing in this Agreement shall be constmed or deemed as an admission of liability, culpability, negligence, or wrongdoing on the part of Defendant. 5.2 There has been no final determination by any court as to the merits of fhe claims asserted by Plaintiffagainst Defendant, nor has there been any final detennination as to whether a FIRSTAMENDEDJOINT STDPULATIONOF SETTLEMENT AND RELEASE 13. CASENO. 4:17-CV-07272-YGR DocuSign Envelope ID:09A67551-6A8E-42B1-B680-ACDDCA54449A 1 class should be certified, other than for settlement purposes only. Defendant will stipulate to the . 2 certification of the class claims for settlement purposes only, Class certification of the PAGA 3 Settlement is not necessary to bind alleged aggrieved employees pursuant to Arias v. Superior Court 4 ofSanJoaquin County (Dairy), 46 Cal. 4th 969 (2009). Defendant disputes that certification is proper 5 for the purposes of litigating the class claims proposed in or flowing from the Complaint; and the 6 Court has not evaluated manageability. 7 8 9 10 11 12 13 14 15 16 17 6. OPERATIVETERMS OF SETTLEMENT. The Parties to this Action agree as follows: 6. 1 Coo eration. The Parties will cooperate in obtaining, through written stipulation or unopposed motion if a motion is required, an order from the Court approving the Agreement. The Parties agree to use their best efforts to expedite the preparation and submission ofthe Agreement and related documents. The Parties further agree to fully cooperate in the drafting and/or filing of any further required documents or filings, shall take all steps that may be requestedby the Court or that . are otherwise necessary for the approval and implementation of this Agreement, and shall otherwise use their respective best efforts to obtain Court approval ofthis Agreement. 6. 2 Preliminary Approval. The Parties will seek to obtain the Court's preliminary approval ofthe settlement pursuant to Fed. R. Civ. Proc. 23(e) andCal. Lab. Code § 2699(1). The Partieswill jointly request that any preliminary approval order be dated no earlier than December 1, 2019 and 18 request an immediate vacation or stay ofpending dates until the entry ofFinal Judgment by the Court. 19 20 21 6. 2. 1 Class Counsel will prepare and file the motion for preliminary approval and relateddocuments consistentwiththe terms ofthis AgreementandDefendantagreesnot to oppose it. The Parties and their Counsel agree that this settlement is strictly confidential unless and until the 22 Preliminary Approval Motion is filed granted. Plaintiff will not oppose FedEx filing a motion to seal 23 the preliminary approval pleadings. If the Court declines to enforce this provision, it will not be 24 25 26 grounds to void the Agreement. 6. 2. 2 Plaintiff, Defendant, and their respective Counsel will not make any public disclosure ofthe Agreement until after the Agreement is preliminarily approved by the Court. Plaintiff 27 and Class Counsel agree not to disclose or publicize the Agreement, including the fact of the 28 LITTLERMENDELSON. P. C. 204S Century Park East 5th Floor Laa Angeles, CA 80087. 3107 310. 553. 03SS FIRST AMENDED JOINT STIPULATION OF SETTLEMENT AND RELEASE 14. CASENO. 4:17-CV-07272-YGR DocuSign Envelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A 1 Agreement, its tenns or contents, and the negotiations underlying the Agreement, in any manner or 2 form, directly or indirectly, to any person or entity, except potential class members and as shall be 3 contractuallyrequiredto effectuatethe terms oftheAgreementas set forthherein. ClassCounselwill 4 take all steps necessary to ensure that Plaintiffis aware of, and will encouragehim to adhere to, the 5 restriction againstany public disclosure of the Agreement until after the Agreement is preliminarily 6 approvedby the Court. 7 6.2. 3 TheParties agreenotto initiate anycontact withthemediaconcerning this case 8 at any time. Plaintiffand Counsel will not at any time publish details ofthis case or the settlement 9 exceptonPlaintiffsCounsel'swebsiteorotherpublicationsit controls. IfeitherPartyortheirCounsel 10 is contacted by the media, neither Party is required to make a statement, but may make the following 11 statement: 12 (a) IfMotion to Sealis granted: "The Parties havereachedanagreement to 13 settle the pending claims in the Theodore Emetohv. FedEx Freight, Inc. lawsuit. The tenns of the 14 settlement areconfidentialandhavenot yet receivedfinal approvalby the Court." 15 (b) If Defendant's Motion to Seal is not granted: "The Parties have reached 16 anagreementto settle the pendingclaims in the Theodore Emetohv. FedExFreight, Inc. lawsuit. The 17 terms of the settlement have not yet received final approval by the Court." 18 19 (c) agreement to settle the pending claims in the Theodore Emetoh v. FedEx Freight, Inc. lawsuit." 20 21 After preliminary approval is granted: "The Parties have reached an (d) At any time. Plaintiff may say: "We believe the settlement is fair and in the best interests of the class." 22 (e) IfDefendant's Motion to Sealis not granted andafterpreliminary 23 approval is granted, Defendantmay say: "FedExFreightdenies liabilityin this matter. Contraryto 24 Plaintiffs claims, FedEx Freight complies with the wage and hour laws in all jurisdictions where we 25 do business, including California. We have agreed to settle this matter simply to avoid the 26 burdensome cost of continued litigation." 27 28 (f) The Parties expressly agree thatneither Party shallprovide any commentbeyondthe abovestatements to anythirdparty entity, on anydigitalplatform, or in any LITTL^cME,NDE^?.N;p'c- FIRST AMENDED JOINT L.:;,.^i;:»,., STffULATION OF SETTLEMENT ,,. ss,.,.. ^fQ RELEASE 15 CASE NO. 4:17-CV-07272-YGR DocuSignEnvelope ID:09A67551-6A8E-42B1-B680-ACDDCA54449A 1 other forum, exceptfor Plaintiffs Counsel'swebsite or otherpublicationscontrolledby Plaintiffs 2 Counsel. 3 6. 2. 4 The Parties agree that the preliminary approval order will include a provision 4 enjoiningClassMembersfromfilinganyDLSEclaims,orfrominitiatingotherproceedings,regarding 5 claims released by the settlement before opting out of the settlement. If the Court declines to enforce 6 this provision, it will not be grounds to void the Agreement; 7 6. 2. 5 The Parties will submit this Agreement to the Court for preliminary approval 8 of its terms and for approval of the steps to be taken to obtain its final approval. The Parties will 9 request thatthe Court's preliminaryapproval ofthis Agreementbe embodiedin the Preliminary 10 11 Approval Order, a proposed fonn of which is attached as Exhibit D. 6. 3 Notice to Class Members. The Settlement Administrator shall disseminate the Notice 12 Packet in the manner described below, with the Settlement Administration Costs being paid firom the j3 Gross SettlementAmount. ^4 6. 3. 1 No later than thirty (30) calendar days after the entry of the Preliminary Approval Order, for each Class Member, Defendant shall provide the Settlement Administrator with the name, last known mailing address, last known telephone number, Social Security Number, the 17 18 19 20 datestheClassMemberwasemployedasa ClassMemberofDefendantin CaliforniaduringtheClass Period, the number ofWorkweeksattributableto the Class Member, andwhetherthe ClassMember's employment with Defendant ended, in a form requested by the Settlement Administrator. This class data, as well as any other class data provided to the Settlement Administrator, shall be confidential. Except as provided for in this Agreement, the Settlement Administrator shall not provide the class data 21 22 23 24 to Class Counsel or Plaintiffor any third party, or use the class data or any information contained therein for any purpose other than to administer this Agreement. Class Counsel agrees they will not use the Class Member data for any purpose other than as required for this Agreement. The Settlement Administrator shall use commercially reasonable efforts to secure the Class Member data at all times 25 so asto avoidinadvertent orunauthorized disclosure oruseofsuchdataotherthanaspermitted by 26 this Agreement, andshall destroy the data and all copies in a complete and secure manner atthe end 27 ofanyretention periods afterwhichthe datais no longerrequired forpurpose oftheAgreement. Class 28 LITTL,E.I;cM.E,ND^,s?.N,;p-c- FIRST AMENDED JOINT ..21"..1;H1^',,, 5th Floor LDS Angeles, CA 9COBT. 3107 310. 553. 03Se STIPULAtTONOF SETTLEMENT AND RELEASE 16. CASENO. 4:17-CV-07272-YGR DocuSignEnvelope ID:09A67551-6A8E-42B1-B680-ACDDCA54449A 1 Members' addresses, telephone numbers, or social security numbers shall not be filed with the Court, 2 except as may be ordered by the Court. 6. 3. 2 No later than ten (10) calendar days after receipt of such address information, 3 4 the Settlement Administrator will perform a national change ofaddress ("NCOA") search, update the 5 addressespertheresults oftheNCOAsearch,andthenmailtheNoticeofSettlementandDataDispute 6 Form, substantiallyin the forms attachedas ExhibitsB andC, respectively, to eachClassMemberby 7 first-class mail, postage prepaid. 6. 3. 3 Ifa ClassMember isdeceased,thesuccessor orestatemayreceive thepayment. 8 9 10 Within ten (10) calendar days of notification that the Class Member is deceased, the Settlement Administrator shall mail a BeneficiaryDeclarationand Release to the successor or individual acting on behalf of the estate. 11 12 13 14 15 6. 3. 4 In the event that a Notice Packet is returned as undeliverable, the Settlement Administrator will make reasonable efforts to obtain a valid mailing address by using the social securitynumberoftheclassmemberandstandardskiptracingdevicesto conducta searchfora correct mailing address and by contacting Class Counsel and Defendant through Defendant's Counsel. Followingeachsearchthatresults in a correctedaddress,the SettlementAdministratorshallpromptly 16 resendtheoriginalNoticePacketto theClassMemberbyfirst-classmail,postageprepaid. Suchefforts 17 must becompletedno less than fourteen (14) calendardaysbeforethe date ofthe FinalApproval and 18 Fairness Hearing. No further action is required if the search results in no corrected address. 19 20 6. 3. 5 The Parties shall cooperate in good faith with Ae Settlement Administrator's reasonable efforts to obtain valid mailing addresses for Class Members. 21 6. 3. 6 All costs ofmailing oftheNotice Packet, whether foreseen or not, shallbepaid 22 from the Gross SettlementAmount, includingthe cost ofsearchingfor Class Members' addressesas 23 providedin Section6.3.4. All otherreasonablecostsofthe SettlementAdministratorshallalsobepaid 24 from the Gross Settlement Amount. 6. 3. 7 No later than fourteen (14) calendar days prior to the date ofthe Final Approval 25 26 27 28 LITTLER MENDELSON, P. C. 2048 Century Pa-k Easl 5th Floor and Fairness Hearing, the Settlement Administrator shall file a declarationunder penalty ofperjury advisingthe Court thatthe requirements ofSections 6.3. 1 through6.3.4 ofthis Agreementhavebeen fulfilled. FLRST AMENDED JOINT STIPULATION OF SETTLEMENT AND RELEASE 17. CASE NO. 4:17-CV-07272-YGR DocuSign Envelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A 1 6. 3. 8 Compliance with these procedures shall constitute due and sufficient notice to 2 ClassMembers ofthis Agreementand shall satisfythe requirement ofdueprocess. Nothingelse shall 3 be required of, or done by, the Parties or their Counsel to provide notice ofthe proposed Agreement. 4 5 6.4 Res onses to Notice. The Notice Packet shall provide Class Members with information as to how they may challenge the Data in the Data Dispute Form. Class Membersneed not excludethemselvesfrom theAgreementto submita DataDisputeForm. Ifa ClassMembertimely 7 8 9 10 11 12 13 14 15 submits both a DataDispute Form and a request for exclusion, the DataDispute Form shall control, and the request for exclusion shall be null and void. 6. 5 Class Members will haveuntil theDataDisputeDeadlinewithinwhichto complete and postmark their Data Dispute Form for return to the Settlement Administrator. Except asprovided by Section 6.5. 1 and 6. 5.2, no Data Dispute Forms will be honored if postmarked after the Data Dispute Deadline. 6. 5. 1 For Class Members who are re-mailed the Notice Packet due to it being undeliverable, the deadline by which to submit a DataDispute Form, file an objection, or submit a requestforexclusionwill bethelaterof(i) fourteen(14)calendardaysfrom the datetheNoticePacket was re-mailed, or (ii) the Data Dispute Deadline. 16 6. 5.2 If a DataDispute Fomi is timely submitted, but is deficient or incomplete, the 17 Settlement Administrator will return the Data Dispute Form (or, if deemed necessary, a new Data 18 Dispute Form) to the Class Member within five (5) business days ofreceipt ofthe DataDispute Form 19 witha deficiencynoticeexplainingthe deficienciesandstatingthattheClassMemberwill havefifteen 20 (15) calendardays from the date ofthe deficiencynotice to correct the deficienciesandresubmitthe 21 Data Dispute Form. Neither the Parties nor their Counsel shall discourage any Class Member from 22 submitting a Data Dispute Form. The Settlement Administrator will timely notify Class Members ^ whose dispute letters are untimely or denied for other reasons. 6. 5. 3 ClassMembers, with the exception ofthe Class Representative, mayopt-out of the Agreement. Class Members whowishto exercisethis option must submit a request for exclusion to the Settlement Administrator as provided in this section. The request for exclusionmust (a) be in 27 28 writing; (b) state the name, address and telephone number of the Class Member; (c) state either the Class Member's approximate years of employment with Defendant or the employee identification UTT^RcME,N,D^^.N;pc' FIRST AMENDED JOINT L.. *,,., ^h^. 73, "°S"BM' c, STIPULATIONOF SETTLEMENT AND RELEASE 18. CASENO. 4:17-CV-07272-YGR DocuSign Envelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A 1 number assigned to the Class Member by Defendant; (d) request exclusion from the Class saying 2 words to the effect of "I wish to opt out of the Class in; Emetoh v. FedEx Freight, Inc. "; (e) be sent 3 via U. S. Mail postmarked no later than the DataDispute Deadline; and (f) be signedand datedwith 4 return address or contact information. No request for exclusionmaybe made on behalfofa group of 5 members ofthe Class. The date ofthe postmarkon Ae retiim-mailingenvelope shallbe the exclusive 6 means used to determine whether a request for exclusion has been timely submitted. By submitting 7 sucha Requestfor Exclusion, a Class Membershall be deemedto have exercisedhis or heroption to » 8 9 optout oftheclassactionlawsuit,exceptthatoptingout doesnot alterthebindingnatureofthePAGA Settlement, Release, Final Approval, and Final Judgment related to the PAGA Settlement. 6. 5.4 Any member ofthe Class whorequests exclusion from the Agreement will not 10 11 be entitled to any share of the settlement (except for a PAGA Payment), will not be bound by the Agreement or Final Judgment (except as to the PAGA Settlement and related Final Judgment), and 12 13 14 15 a valid and timely request for exclusion shall be bound by all terms of the Agreement and the Final Judgment entered in this Action, regardless ofwhether they otherwise have requested exclusion from the Agreement. 16 6. 5. 5 The Settlement Administrator is to send a deficiency notice to the Class 17 Members for any irregularities in the requests for exclusionthat are timely submitted; the deficiency 18 noticewill providethe ClassMembersno less than fifteen (15) calendardays from themailing ofthe 19 deficiencynotice to cure fhe deficiency,even if after the claims periodends. 20 6. 5. 6 Within ten (10) calendar days of the Data Dispute Deadline, the Settlement 21 Administrator shall notify Class Counsel and Defendant's Counsel of the identity of Class Members 22 who have submitted requests for exclusion and whether the request for exclusion was timely or 23 untimely filed. No later than fourteen (14) calendar days before the Final Approval and Fairness 24 Hearing, the Settlement Administrator shall file a declarationunderpenalty ofperjury providingthe 25 26 27 28 LITTLERMENDELSON, P. O. 2049 Century Pa'K East 5th Floor 31B. 553. 030a will nothaveanyrightto object, appealor commentthereon. MembersoftheClasswhofailto submit Courtwith a complete list ofall members ofthe Classwhohavetimely requestedexclusionfrom the Agreement. 6. 5. 7 Any person who does not request exclusion but who wishes to object or otherwisebeheardconcerningthisAgreementmustprovidethe SettlementAdministratorwithwritten FIRST AMENDED JOINT STIPULATIO^OFSETTLEMENT AND RELEASE 19 CASENO. 4:17-CV-07272-YGR DocuSign Envelope ID:09A67551-6A8E-42B1-B680-ACDDCA54449A 1 notice of his or her intent to object to this Agreement, although no Class Member has the right to 2 object to the PAGA Settlement. To be considered timely, the notice must be sent to the Settlement 3 AdministoratorviaU. S. Mail andpostmarkedno laterthanthe DataDisputeDeadline.Thenoticemust 4 set forth any and all objections to this Agreement and include any supporting papers and arguments. ^ Any person who fails to submit such a timely written notice shall bebarred from making any statement objectingto this Agreement, andshall foreverwaivehis orherobjection, exceptby specialpennission 7 8 9 10 11 12 13 14 15 of the Court, but may still attend the hearing to obtain such special permission. The Settlement Administrator shall promptly forwardall objections to the Partiesandhave them filed with the Court withinten (10) calendar days of the DataDispute Deadline with any later received objections filed with the Court promptly upon receipt and in any case no later than five (5) business days before the Final Approval and Fairness Hearing. Either of the Parties may file a responsive document to any notice ofintent to object with the Court no later than five (5) business days before the Final Approval andFairness Hearing. Any person who objects to the Agreement shall be bound by the order ofthe Court. 6. 5. 8 Ifany individual whose name does not appear on the updated class list provided to the Settlement Administratorbelieves that he or she is a member ofthe Class, he or she shall have 16 the opportunity to disputehis or her exclusionfrom the Class. Individualswhobelieve they are Class 17 members must notify the Settlement Administrator inwriting no later thantheDataDispute Deadline. 18 The Parties will meet and confer regarding any such individuals in an attempt to reach an agreement 19 as to whether any such individual should be regarded as a Class member. If the Parties so agree, the 20 SettlementAdministratorwill mail a NoticePacketto the individual,andtreat the individualas a Class 21 member for all other purposes. Such an individual will have all of the same rights as any other Class 22 member under this agreement. ^3 6. 5. 9 If five percent (5%) or more of the total number of Class Members submit timely andvalidrequests for exclusion, then Defendantshall have the option to void the Agreement. Defendant must exercise this option within fourteen (14) calendar days of receiving a report from the 26 27 28 Settlement Administrator showing the total number of timely and valid requests for exclusion exceeding 5% of Class Members. If Defendant chooses to exercise this option, the effect will be precisely the same as if final approval did not occur, as discussed in Section 2. 2. As a condition to LITTL^R.M.E,N,DEp;,s?.N;pc- FIRST AMENDED JOINT . ^^1., 51h Floor Los Ange'es. CA 30C67. 3107 110. 553. 0308 STIPULAtTONOF SETTLEMENT AND RELEASE 20. CASENO. 4:17-CV-07272-YGR DocuSign Envelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A 1 exercise of this option. Defendant must pay the Settlement Administration Costs incurred as of the 2 date ofthis exercise, notwithstanding other allocations of Settlement Administration Costs set forth in 3 this Agreement. 6. 5. 10 Neither the Parties nor their respective Counsel will solicit or otherwise 4 5 encourageanyClassMember,directlyorindirectly, to requestexclusionfromtheAgreementorobject to the Agreement. 6. 6 DataDis ute Procedures. Any Qualified Claimant who disputes the Data listed on the Data Dispute Form shall complete the Data Dispute Fonn andprovide it together with any supporting infonnationor documentationto the Settlement Administratorby the DataDisputeDeadline. A Data 10 11 Dispute Form will be deemed submitted (a) when postamarked, if it is mailed by first-class, registered, or certified mail, postage prepaid, addressed in accordance with the instructions on the form, or (b) if otherwisesubmitted, whenit is actuallyreceivedat the addressdesignatedon the form. If a Qualified 12 13 14 15 Claimantdoesnot timely dispute the Datacontainedin the DataDisputeForm, the Datacontainedin the Data Dispute Form mailed to the Qualified Claimant shall govern the calculation of his or her entitlement under the Agreement 6. 6. 1 Defendant shall review and respond to each submitted Data Dispute Fonn within ten (10) calendar days of receipt, and shall transmit a copy of its response to the Settlement 17 Administrator. Defendant's response shall state whether Defendant agrees with or disputes the 18 infonnation provided in the Data Dispute Form. 19 (a) If Defendant agrees with all of the infonnation provided in the Data 20 Dispute Form, the information and documentationprovided by the QualifiedClaimant and attached 21 to the DataDispute Fonn shall govern the calculationofthe entitlement under the Agreement ofthe 22 personwhoseemployment informationis listed in the DataDisputeForm. ^3 ^ (b) If Defendant disagrees with any ofthe information provided in a Data Dispute Form, it shall follow theprocedure setforth in Section6. 6.2 ofthisAgreement. 6. 6. 2 In the event that Defendant disagrees with the infomiation provided in a Data 26 27 28 LITTL^R cME,N,DE^lN ; p-c' DisputeForm, Defendant'sCounselwill promptly adviseClass Counselin writingofthe disputeand provide Class Counsel with copies ofall information relevant to the dispute. Copies ofall DataDispute Forms and correspondence with the person(s) submitting the Data Dispute Form(s) shall be made FIRSTAMENDED JOINT IHL^',. STIPULA'tTONOF SETTLEMENT Slti Fit Los Angeles, CA 3CG67.3107 31G. 553. 03C8 AND RELEASE 21. CASE NO. 4:17-CV-07272-YGR DocuSign Envelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A 1 available to Class Counsel upon request. Defendant's Counsel andClass Counsel shall attempt in good 2 faith to resolve any such dispute within ten (10) calendar days of Class Counsel's receipt of 3 Defendant'sCounsel's notice ofa dispute as to the DataDispute Fonn. Class Counsel shallhavefull 4 discretion on behalfof the Qualified Claimants to resolve such disputes with Defendant'sCouiisel, 5 except that any and all payments relating to the disputed entitlement must be from the Net Settlement 6 Amount. 6. 6. 3 In the event the Parties are unable to resolve any dispute under this section, the 7 8 9 10 11 12 13 14 15 Courtshallreviewall mformation,materialsanddocumentsprovidedbytheQualifiedClaimant,Class Counsel, and/or Defendant's Counsel, and make a decision regarding the dispute. This decision shall be final and unappealable. 6. 7 Ap plication for Attome s' Fees and Ex enses. Class Counsel shall apply to the Court for an award of fees from the Gross Settlement Amount in an amount not to exceed One Million Eighty-Two Thousand Two-Hundred Fifty Dollars ($1, 082, 250. 00) (thirty three and one-third percent of the Gross Settlement Amount) and actual costs incurred up to Twenty Thousand Dollars ($20, 000. 00). Defendant agrees not to oppose Class Counsel's application for fees and expenses provided the application is made consistent with this section. To the extent the Court awards less than 16 this amount, the remainder shall be distributed to the Qualified Claimants. Failure of the Court to 17 award the requested attorneys' fees and costs is not a grounds to void this Agreement, however, 18 Plaintiff reserves the right to appeal any such decision. 19 6. 8 A lication for Enhancement Pa ent. Class Counsel, on behalf of Plaintiff, shall 20 apply to the Court for an Enhancement Payment from the Gross Settlement Amoimt, per the Court's 21 direction, or no later than the same day Plaintiff files his anticipated Motion for Final Approval of 22 ClassActionSettlement. To the extentthe Courtawardslessthantherequestedamount,theremainder ^3 shall be distributed to the Qualified Claimants. Failure of the Court to award the requested Enhancement Payment is not a grounds to void this Agreement. 6. 8. 1 Any request for an Enhancement Payment may be supported by a declaration 26 27 from the ClassRepresentativeseekingpaymentandoutliningthe burdensandobligationsassumedin connection with his role as a Class Representative. Defendant agrees not to oppose Class 28 LITTL^M.E,N,D^^.Nip-c' FIRSTAMENDEDJOINT ^ ^^!^L 51h Fl( Los Angeles. CA SOOB7. 31DT 310. 553. 0308 STIPULA'tTONOF SETTLEMENT AND RELEASE 22. CASENO. 4.-17-CV-07272-YGR DocuSign Envelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A 1 Representative's application for the Enhancemeut Payment provided the application is made 2 consistent with this Agreement. 3 6. 8.2 Plaintiff shall be solely and legally responsible to pay any and all applicable 4 taxes onhis Class Representative Enhancement Payment andhold harmless Defendant from anyclaim 5 or liability for taxes, penalties, or interest arising as a result ofthe Class Representative Enhancement 6 Payment. 7 8 9 10 11 6. 9 Final A roval and Fairness Hearin . On the date set forth in the Notice Packet, the Court shall hold the Final Approval and Fairness Hearing where objections, if any, may be heard. If the Court approves this Agreement at the Final Approval andFairness Hearing, the Parties request that the Court enter the Final Judgment. 6. 10 Tax Allocation ofthe Net Settlement Amount. To fairly allocate settlement funds based on Ae Qualified Claimant's dates of employment as a Class Member (excluding workweeks where 12 13 14 15 the Qualified Claimant was not performing driving duties) and any entitlement to waiting time penalties, the distribution amounts will be calculated as follows: The total Workweeks for all Class Members in the class period plus additional Workweeks allocated for separated employees shall be divided into the Net Settlement Amount to calculate the agreed upon payment per Workweek (the 16 "Workweek Rate"). EachQualified Claimant who separated from Defendant during the class period 17 at least once will receive an allotment of six additional Workweeks. Each Qualified Claimant will be 18 paid the Workweek Rate for each Workweek. 19 6. 10. 1 There will be no reversion of any of the Gross Settlement Amount or Net 20 Settlement Amount to Defendant. For any Class Member that requests exclusion from the Class, his 21 or her Claim Amount will be added to the Net Settlement Amount and distributed to Qualified 22 Claimantsona proportionalbasis.All QualifiedClaimantswill receivetheirClaimAmount, suchthat ^ 100%oftheNet Settlement Amount will bepaid. 6. 10. 2 The Parties recognize that the Claim Amounts to be paid to Class Members reflect settlement of a dispute over claimed wages, business expenses, interest, premiums and penalties. The parties agree that suchpayments are not, and are not intended to be made as a payment 27 28 with respect to, a penalty or a punishment ofany type or kind for purposes of Internal Revenue Service Code §162(f), except that the PAGA Payment is a civil penalty. L'TTL.E.RcM.E,N5^,M.Nip'c' FIRST AMENDED JOINT '^!^^ 51h F I BE Los Angeles. CA 90367.31CT 310. 553, 0308 STIPULAtTONOF SETTLEMENT AND RELEASE 23. CASENO. 4:17-CV-07272-YGR DocuSign Envelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A 1 6. 10. 3 With the exception ofthe PAGA Payment, no governmental entity is directly 2 or indirectly a recipient of any portion of the payments made pursuant to this Agreement, and no 3 governmental entity has any interest or involvement ofany type or kind in the litigation hereby settled. 4 The payments made herein are not made or received with the intention of avoiding or reducing any 5 liabilityto a governmental entity ofanytype or kind. 6. 10. 4 The Settlement Administrator will prepare and issue Fomis 1099 and W-2's as 6 7 8 9 10 11 part of this Agreement and calculate and deduct required withholdings from each Payroll Settlement Check, and file tax forms with the appropriate government agencies as required by law. Pursuant to its duties andundertakings,the SettlementAdministratorshallworkwithDefendantto ensurethat all monies and information needed to remit and report the applicable portions ofthe payroll tax payment to the appropriate taxing authorities are provided on a timely basis. Defendant agrees to reasonably cooperate with the Settlement Administrator to the extent necessary to determine the amount of the 12 13 14 payroll tax payment required under this section. Defendant and Defendant's Counsel will not be responsible for any errors or omissions in the Settlement Administrator's calculations of the » withholdings. 15 6. 10. 5 Qualified Claimants shall be solely responsible for the reporting and payment 16 oftheir share of any federal, state and/or municipal income or other taxes on payments made pursuant 17 to this Agreement. No Party has made any representation to any ofthe other Parties as to the taxability 18 ofanypayments pursuant to this Agreement, including the payments to Class Members, the payments 19 to Class Counsel, the payments to the Class Representative, the payroll tax liability of Defendant, or 20 the allocation of settlement proceeds to wage andnon-wage income as provided in Section 6. 10.4, or 21 otherwiseas to tax implications ofanyprovision ofthis Agreement. 22 6. 10. 6 Defendant will pay the employer's share of payroll taxes only attributable to 23 the portion ofthe Net Settlement Amount deemed to be wages. Defendant shall not be responsible for 24 payroll tax payments on any other portion of the Gross Settlement Amount or Net Settlement Amount. 25 6. 10. 7 Defendant and Defendant's Counsel will not be liable for any errors or » 26 27 28 LITTLER MENDELSON. P. O. 3C4SCBniur¥ Park East omissions in the Settlement Administrator's calculation of each Qualified Claimant's Claim Amount. Defendant and Defendant's Counsel will not be liable with respect to any claims relating to managementofthe QSFor distributionofthe fimds from the QSF, the payment oftaxes (other than FIRST AMENDED JOINT STIPULATION OF SETTLEMENT AND RELEASE 24. CASENO. 4:17-CV-07272-YGR DocuSignEnvelope ID:09A67551-6A8E-42B1-B680-ACDDCA54449A 1 the employer's share ofpayroll taxes), the withholding of taxes, or any obligations or losses incurred 2 by any person or any entity in coimection therewith. 3 4 6. 10. 8 The Settlement Administrator shall allocate all Claim Amounts to Qualified Claimants as follows: (a) 5 6 7 paymentofdisputedwagesto QualifiedClaimants. Forthis portion ofthe Claim Amounts, Qualified Claimants shall receive an IRS Form W-2 from the Settlement Administrator. (b) 8 9 10 Twenty percent (20%) of the Claim Amounts shall be allocated for Eighty percent (80%) of the Claim Amounts shall be allocated for disputed business expense reimbursement. Labor Code § 226, penalties, including the PAGA Payment, and interest. This portion of the Claim Amounts consists of other income, not wages, for " which the Qualified Claimants shall receive an IRS Form 1099 fi-om the Settlement Administrator as 11 12 13 14 15 and if required by law. 6. 10. 9 The Class Members receiving all or any portion ofany payment hereunder are presentor fanneremployees ofDefendant. 6. 11 DistributionofSettlementProceeds.Withinfourteen(14) calendardaysaflterthe Final Judgment is entered. Defendant shall electronically wire the entire Gross Settlement Amount and ^ employer's share ofpayroll taxes to the Settlement Administrator, who shall deposit it andhold it m 17 trust inthe QSF. The final andcomplete delivery byDefendantto the Settlement Administrator ofthe 18 Gross Settlement Amount and employer's share of payroll taxes shall constitute full and complete 19 dischargeof the entire obligation of Defendantunder this Agreement, except that Defendantis also 20 responsible for any retroactive tax increase assessed on the amounts allocated to wages, upon an 21 accoimting provided by the Settlement Administa-ator. No Released Party shall have any further . 22 obligation or liability to Class Counsel, Class Representative, or Qualified Claimants. ^ 6. 11. 1 Within seven (7) calendar days after the Final Approval Date, the Settlement Administrator shall promptly deduct andpay (and, if available, electronically wire) from the Gross Settlement Amount (1) all Court-awardedattorney's fees and costs; (2) the Enhancement Payment; (3) Settlement AdministrationCosts; and(4) the StateofCalifornia'sportion ofthe PAGA 26 Payment. Following deduction ofthe amounts of suchpayments, the Settlement Administrator shall 27 calculate andmakepayments to the QualifiedClaimants in accordancewiththis Agreement. 28 LITTL^, M.E,N51^1N, p'c- 21"..CSH1E,1, 5th Floor .. Angeles. CA 90C67. 3107 Los 110, 553. 0308 FIRSTAMENDED JOINT . STffULA'tTONOF SETTLEMENT AND RELEASE 25. CASENO. 4:17-CV-07272-YGR DocuSign Envelope ID:09A67551-6A8E-42B1-B680-ACDDCA54449A (a) 1 The Settlement Administrator shall wire the Court-approved attorneys' 2 fees and costs to Class Counsel. Class Counsel shall provide the Settlement Administrator with the 3 pertinent taxpayer identification number and wire instmctions. (b) 4 5 6 7 8 9 10 The Settlement Administrator shall send a check by mail for the Court- approved EnhancementPayment to the Class Representative, in care of Class Counsel. 6. 11. 2 Within fifteen (15) calendar days ofthe Final Approval Date, the Settlement Administrator shall issue Claim Amounts to QualifiedClaimants in the form of a check, which shall become null and void if not deposited within one hundred eighty (180) calendar days of issuance. After one hundred eighty (180) calendar days of issuance, funds from undeposited checks, plus any interest that has accmed on that sum after being deposited into the QSF, shall be deposited with the State of California pursuant to California's Unclaimed Property Law, Code of Civil Proc. (C. C.P.) 11 12 13 14 15 16 §1500 et seq., and specifically as imclaimed intangible property and/or wages within the meaning of C. C.P. §1513 (4)& (7) and subject to distribution pursuant to Court order pursuant to C. C.P. §1519. 5. 6. 11. 3 The failure by a Class Member to claim or deposit any check issued by the Settlement Administrator shall have no effect on that Class Member's release of all Released Claims as set forth herein. 6. 11.4 No person shall have any claim against the Settlement Administrator, 17 Defendant or any of the Released Parties, the Class Representative, the Class Members, or Class 18 Counsel based on distribution or payments made substantially in accordance with this Agreement, or 19 further orders of this Court. The Settlement Administrator, however, shall be licensed and bonded in 20 an amount sufficient to cover any claims against it. 21 6. 12 Release ofClaims. The Parties agree that it is their intent that the tenns set forth in this 22 Agreement will release any further attempt, by lawsuit, administrative claim or action, arbitration, demand, or other action of any kind by each and all of the Qualified Claimants as well as all Class Members for purposes ofPAGA relief, as explained in Section 1.25, includingparticipation to any 25 26 27 28 extentin anyclass or collective action, to obtaina recoverybasedon eachandall ofthe allegationsin the operative complaint in this matter, for harmsarisingduringthe ClassPeriod. 6. 12. 1 Upon full and final payment by Defendant ofthe Gross Settlement Amount consistent with Section 6. 11, the Class Representative and each Qualified Claimants as well as all LITTL^cME,N,DEl.s^,N.i p-c- FIRST AMENDED JOINT . .,21".3;H»E^',.. 5th Floor Los Angeles. CA 90067. 3107 310. 553. C306 STIPULA'tTONOF SETTLEMENT AND RELEASE 26. CASENO. 4:17-CV-07272-YGR DocuSignEnvelope ID:09A67551-6A8E-42B1-B680-ACDDCA54449A 1 Class Members for purposes ofPAGA relief, as explained in Section 1. 25, shall be deemed to have 2 fully, finally, and forever released the Released Parties from all Released Claims, as defined in 3 Sections 1.8, 1.34 and 1.35. The Agreement includes a release of all Released Claims by Qualified 4 Claimants, as well as all Class Members for purposes ofPAGA relief, as explained in Section 1.25. 5 As ofthe entry andfiling ofthe FinalJudgment,Plaintiff,the QualifiedClaimants,aswell as all Class 6 Members for purposes of PAGA relief, as explained in Section 1. 25, shall be permanently enjoined 7 and forever barred from prosecuting any and all Released Claims against the Released Parties. 6. 12. 2 8 9 10 In addition, upon full and final payment by Defendant of the Gross Settlement Amoimt, and conditioned upon the Court approving a Class Representative Enhancement Payment in any amount, the Class Representative shall be deemed to have fully, finally, and forever released the Released Parties from the Class Representative's Released Claims, and the Class 11 12 13 14 15 16 17 Representative shall be deemed to have expressly waived and relinquished, to the fullest extent permitted by the law, the provisions, rights, and benefits he may otherwise have had pursuant to Section 1542, as quoted in the preceding paragraph. 6. 13 Miscellaneous Provisions 6. 13. 1 The respective signatories to this Agreement represent that they are fully authorized to enter into this Agreement and bind the respective Parties to its tenns and conditions. 6. 13. 2 The Parties represent, covenant, and warrant that they have not directly or 18 indirectly assigned, transferred, encumbered, or purported to assign, transfer, or enciunber to any 19 person or entity anyportion ofany liability, claim, demand, action, causeofaction, or right released 20 and discharged in this Agreement. 21 6. 13. 3 Unless otherwise specifically provided herein, all notices, demands, orother 22 communications givenhereundershall be in writing andshall be deemedto havebeenduly given as 23 of the third business day after mailing by United States certified mail, return receipt requested, 24 25 26 27 28 LITTLERMENDELSON. P. O. 2049 Century Pa-it East 5th Floor Los Angeles. Cft 90087. 3107 313. 553, 0338 addressed as follows: To the Plaintiff and the Class: Shaun Setareh William Pao Alexandra Mclntosh Setareh LawGroup FIRST AMENDED JOWJ STIPULATIONOF SETTLEMENT AND RELEASE 27. CASENO. 4:17-CV-07272-YGR DocuSign Envelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A 1 315S. BeverlyDr. Ste. 315 Beverly Hills; CA 90212 2 To Defendant: 3 Keith A. Jacoby 4 5 6 7 8 9 10 Littler Mendelson, P. C. 2049 Century Park East, 5th Floor Los Angeles, CA 90067. 3107 Sophia Behnia Littler Mendelson, P.C. 333 Bush Street, 34th Floor SanFrancisco, CA 94104 LindaN. Bollinger Littler Mendelson, P.C. 50 W. SanFernanda, 7th Floor San Jose, CA 95113. 2303 Sandra C. Isam 11 FedExFreight, Inc. 12 Memphis, TN 38120 1715 Aaron Brenner Drive, Ste. 600 13 14 15 16 17 18 19 20 21 22 23 24 6. 13. 4 ThePartieshereto agreethattheterms andconditions ofthisAgreement are theresult oflengthy, intensive, ami's-lengthnegotiationsbetweenthe Partiesandthatthis Agreement shallnotbeconstmedm favorofor againstanyPartybyreasonofthe extentto whichanyPartyor its Counsel participated in the drafting ofthis Agreement. 6. 13. 5 The Class Representative, by signing this Agreement, is boimd by the tenns hereinand further agreesnot to request to be excludedfrom the Agreement andnot to object to any terms ofthis Agreement. Any such request for exclusion or objection shall therefore be void and ofno force or effect. Defendant, Class Counsel, andthe Class Representative waive their rights to file an appeal, writ, or any challenge whatsoever to the tenns of this Agreement. 6. 13. 6 The Parties agree that nothing contained in this Agreement shall be construed or deemed an admission of liability, culpability, negligence, or wrongdoing on the part of Defendant, and Defendant denies any liability therefore. Each Party has entered into this Agreement with the intention to avoid further disputes and litigation with the attendant inconvenience and 26 expenses. This Agreement is a settlement document and shall not be admissible in evidence in any 27 proceeding, except an action or proceeding to approve, interpret, or enforce its terms or in which 28 FIRST AMENDED JOINT L'TTL^R. oM.E,N,DE,^s?.N;pc ipc- FIRST AMENDEDJOINT ^Z^^l, , 5th FIDE Los Anfleles, CA 90C67. 31Q7 310. 553. 03S8 STIPULA'tTONOF SETTLEMENT AND RELEASE 28. CASENO. 4:17-CV-07272-YGR DocuSign Envelope ID:09A67551-6A8E-42B1-B680-ACDDCA54449A 1 Defendant is relying upon this Agreement in support of an affinnative defense. To the extent this 2 Agreement is deemed void or the Final Approval Date does not occur or for whatever reason does not 3 result in the final resolution ofthe Action, Defendant does not waive, and, instead, expressly reserves 4 its rights to challenge all claims and allegations in the Action upon all procedural, factual and legal 5 grounds, as well as assertinganyandall otherpotential defensesor privileges. 6 6. 13. 7 With the exception of the Excluded Claims, Plaintiff and Class Counsel 7 represent that they do not currently intend to pursue any claims against Defendant, including, but not g limited to, anyandall claims relating to or arising from Plaintiffs employaient with Defendant, and ^ thatClassCounselisnotcurrently awareofanyfactsorlegaltheoriesuponwhichanyclaimsorcauses ^0 of action could be brought against Defendant by Plaintiff, excepting those facts or legal theories ^^ allegedintheComplaint andtheExcludedClaims. TheParties furtheracknowledge, understand, and j^ agree that this representation is essential to the Agreement and that this Agreement would not have beenenteredinto were it not for this representation. ^4 6. 13. 8 Neither Class Counsel noranyother attorneys acting for, orpurporting to act ^ for, the Class, Class Members, or the Class Representative, may recover or seek to recover any ^ amounts for fees, costs, or disbursements from the Released Parties or the settlement except as expressly provided herein. ^g ^g 6. 13. 9 ThisAgreement, including exhibits, constitutes thefull, complete andentire understanding, agreement andarrangement between the Class Representative andQualified Claimants on the one hand and Defendant on the other hand with respect to the settlement of the Action and ^ Released Claims against Defendant. Except those set forth expressly in the Agreement, there are no other agreements, covenants, promises, representations or arrangements between the Parties with respect to the settlement of the Action and the Released Claims against Defendant. ^4 6. 13. 10 ThisAgreement maynotbechanged, altered, ormodified, except inwriting signedbythePartieshereto andapprovedbytheCourt. ThisAgreementmaynotbedischargedexcept by performance in accordance with its terms or by a writing used by the Parties hereto. No rights under this Agreement may be waived except in writing. 28 LITT1-^cME,N,°^.M.N;p'c- FIRST_AMENDED JOINT ?HLE^. STfPULAtTON OF SETTLEMENT AND RELEASE 51h Floe Lot AngBies, CA SSC67. 310T 310. 553. 03SB 29. CASENO. 4:17-CV-07272-YGR DocuSignEnvelope ID:09A67551-6A8E-42B1-B680-ACDDCA54449A 1 6. 13. 11 This Agreement shall be binding upon and inure to the benefit ofthe Parties ' 2 hereto and their respective heirs, tmstees, executors. Settlement Administrators, successors, and 3 assigns. 4 6. 13. 12 This Agreement and the exhibits hereto shall be considered to have been 5 negotiated, executed, and delivered, and to have been wholly performed, in the State of California, 6 and the rights and obligations of the Parties to the Agreement shall be construed and enforced in 7 accordancewith,andgovernedby, thesubstantivelawsofthe StateofCaliforniawithoutgivingeffect 8 to that State's choice of law principles. 9 6. 13. 13 This Agreement shall become effective upon its execution by the Parties. 10 The Class Representative, Class Counsel, Defendant and Defendant's Counsel may execute this 11 Agreementincounterpartsandbywayoffacsimilesignatureor scannedsignatureattachedto anemail, 12 andexecutionofcounterparts shallhavethe same force andeffect as if eachsignatoryhadsignedthe 13 same instmment. 14 6. 13. 14lnthe event that one ormore ofthe Parties to this Agreement institutes any 15 legal action, arbitration, or other proceeding to enforce the provisions of this Agreement or to declare 16 rights and/or obligations under this Agreement, the successful Party or Parties shall be entitled to 17 recover from the unsuccessful Partyor Parties reasonableattorneys' fees andcosts, including expert 18 witness feesincurredin connectionwith anyenforcement actions. Notwithstandingthe entryofFinal 19 Judgment, the Court shall retainjurisdiction ofthis matter for purposes ofinterpreting andenforcing 20 the terms of this Agreement and the Judgment. 21 6. 13. 15 Paragraph titles or captions contained in the Agreement are inserted as a 22 matter ofconvenienceandfor reference, andin no waydefine, limit, extend, or describethe scopeof 23 this Agreement, or any provision thereof. 24 6. 13. 16 Class Counsel will provide an opportunity for Defendant's Counsel to . 25 review the Motions for Preliminary and Final Approval prior to filing with the Court, including 26 furnishing any drafts at least seven (7) calendar days before filing. 27 6. 13. 17 With respect to all of the documents produced by Defendant in this 28 litigation. Plaintiffs attorneys acknowledge that they continue to be bound by the Parties' Stipulated LITTLJR,cME,N,DEp^?.N;p-c' FIRST AMENDED JOINT t....,. ^i°o».. 7,,., '3"'5"°3M STIPULATION OF SETTLEMENT AND RELEASE 30. CASEN0. 4:17-CV-07272-YGR DocuSign Envelope ID:09A67551-6A8E^2B1-B680-ACDDCA54449A 1 Protective Order and that these documents must be kept confidential and otherwise handled in 2 accordance with the tenns of the Protective Order. 3 6. 13. 18 IRSCircular 230Disclaimer. EachPartyto this Agreement (forpurposes of 4 this section, the "acknowledging party" and each Party to this Agreement other than the 5 acknowledging party, an "other party") acknowledges and agrees that: 6 (a) No provision of this Agreement, and no written communication or 7 disclosure between or among the Parties or their attorneys and other advisers, is or was intended to be, 8 nor shall any such communication or disclosure constitute or be constmed or be relied upon as, tax 9 advice within the meaning of United States Treasury Department circular 230 (31 CFR part 10, as 10 amended); 11 (b) The ackaowledging party (a) hasrelied exclusively upon his, heror its own, 12 independent legal and tax counsel for advice (including tax advice) in coimection wifh this Agreement; 13 (b) has not entered into this Agreement based upon the recommendation of any other Party or any 14 attorney or advisor to any other Party; (c) is not entitled to rely upon any communication or disclosure 15 by any attorney or adviser to any other Party to avoid any tax penalty that may be imposed on the 16 acknowledgingparty; and 17 (c) no attorney or adviser to any other Party has imposed any limitation that 18 protects the confidentiality of any such attorney's or adviser's tax strategies (regardless of whether 19 such limitation is legally binding) upon disclosure by the acknowledging party of the tax treatment or 20 tax structure of any transaction, including any fa-ansaction contemplated by this Agreement. 21 22 IN WITNESS WHEREOF, this Agreement is executed by the Parties and their duly authorizedattorneys, as ofthe day and year herein set forth. 23 DqcuSignedby: 24 Dated: 1/28/202° By: ^-?' L Theo ore 25 metoh Plaintiff 26 27 Dated: 28 LITTL^cME,ND^^.N,p'c' FIRST AMENDED JOINT . ..2°,",.C^H^1, ,, ^.. c. sTlPULA'tTONOF SETTLEMENT ^fQ RELEASE By: 31. CASENO. 4:17-CV-07272-YGR DocuSignEnvelope ID: 09A67551-6A8E-42B1-B680-ACDDCA54449A 1 FedEx Freight, Inc. Defendant 2 3 4 APPROVEDAS TO FORMAND CONTENT SETAREH LAW GROUP 5 6 7 Dated: By Shaun Setareh 8 Attorneys for Plaintiff 9 LITTLERMENDELSON,P.C. 10 11 12 Dated: By: Keith A. Jacoby Attorneys for Defendant FedEx Freight, Inc. 13 14 15 16 4834-3565-3539.5 057116.1023 17 18 19 20 21 22 23 24 25 26 27 28 1-'TTL^cME,N,DEp^?.N;p'c' FIRST AMENDED JOINT ..T,.C^H^", c, STIPULA'tTONOF SETTLEMENT Slh Floor Los A'ise;es, CA 9D067. 31C7 310. 553, 0308 AND RELEASE 32. CASENO. 4:17-CV-07272-YGR 1 2 By: Dated:January28, 2020 FedEx Freight, Inc. Defendant 3 4 5 APPROVEDAS TO FORMAND CONTENT. 6 SETAREH LAW GROUP 7 8 ; //2f/2^ Dated By: A^ Shaun Setareh 9 Attorneys for Plaintiff 10 11 LITTLERMENDELSON,P.C. 12 13 Dated:January28, 2020 By: KeithA. Jacoby SophiaBehnia Linda N. Bollinger Attorneys for Defendant FedExFreight, Inc. 14 15 16 17 18 19 4834-3565-3539.5 057116. 1023 20 21 22 23 24 25 26 27 28 LITT^ R '. FIRSTAMENDED JOINT J^3;IS^., 5th f es LnsA«rl... _u tW», )i|,| 310. 55i63W STIFULA^nO^OFSETTiEMENT AND RELEASE 32. CASENO. 4:17-CV-07272-YGR EXHIBITS TO SETTLEMENT AGREEMENT OMITTED EXHIBIT B Jeff Sell Ronnie Medina Norbert Muller Pascual Gonzalez

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