Mistras Viceral - Simpluris

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Plaintiffs’ Unopposed Motion for Final Approval of California Class Action Settlement

CASE NO. 3:15-cv-02198-EMC

MARLIN & SALTZMAN, LLP Stanley D. Saltzman, Esq. (SBN 090058) William A. Baird, Esq. (SBN 192675) 29229 Canwood Street, Suite 208 Agoura Hills, California 91301 Telephone: (818) 991-8080 Facsimile: (818) 991-8081 [email protected] [email protected] SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP Carolyn Hunt Cottrell, Esq. (SBN 166977) Nicole N. Coon, Esq. (SBN 286283) 2000 Powell Street, Suite 1400 Emeryville, California 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 [email protected] [email protected] UNITED EMPLOYEES LAW GROUP, P.C. Walter Haines, Esq. (SBN 71075) 5500 Bolsa Avenue, Suite 201 Huntington Beach, California 92649 Telephone: (888) 474-7242 Facsimile: (562) 256-1006 Attorneys for Plaintiffs and the Settlement California Class and FLSA Class

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

EDGAR VICERAL and DAVID KRUEGER, individually and on behalf of all others similarly situated,

Plaintiffs,

v.

MISTRAS GROUP, INC.; and DOES 1-50, inclusive,

Defendant.

)))))))))))))) )

CASE NO. 3:15-cv-02198-EMC (Assigned to Hon. Edward M. Chen) CLASS ACTION

PLAINTIFFS’ UNOPPOSED NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CALIFORNIA CLASS ACTION SETTLEMENT DATE: February 2, 2017 TIME: 1:30 p.m. CTRM: 5

Case 3:15-cv-02198-EMC Document 92 Filed 12/29/16 of 16

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i Plaintiffs’ Unopposed Motion for Final Approval of California Class Action Settlement


TO: ALL PARTIES HEREIN AND TO THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE that on February 2, 2017, at 1:30 p.m., or as soon thereafter as the

matter can be heard, in Courtroom No. 5 in the above entitled courthouse located at Phillip Burton

Federal Building & United States Courthouse, 450 Golden Gate Ave., San Francisco, CA 94102,

Plaintiffs Edgar Viceral and David Krueger (“Plaintiffs”) will and hereby do move the Court pursuant to

Federal Rule of Civil Procedure 23 for an order finally approving the California Class Action Settlement

Agreement as fair, adequate, and reasonable. Defendant Mistras Group, Inc. (“Defendant”) does not

oppose this Motion.

Said Motion shall be based upon this Notice of Motion, the accompanying Memorandum of

Points & Authorities filed herewith, supporting Declarations of Stanley D. Saltzman, Carolyn Hunt

Cottrell, and Stephen Gomez (of Simpluris, Inc.), the Settlement Agreement and Stipulation entered into

by the Parties and previously submitted at Docket No. 70-2, and upon such further evidence, both

documentary and oral, as may be presented at the hearing of said motion.

DATED: December 29, 2016 MARLIN & SALTZMAN, LLP SCHNEIDER WALLACE

COTTRELL KONECKY WOTKYNS LLP UNITED EMPLOYEES LAW GROUP, P.C.

By: /s/ William A. Baird

Attorneys for Plaintiffs and the Settlement California Class and FLSA Class


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ii Plaintiffs’ Unopposed Motion for Final Approval of California Class Action Settlement


TABLE OF CONTENTS

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

II. THE SETTLEMENT PROCESS HAS BEEN DUTIFULLY ADHERED TO AND SUCCESSFULLY CARRIED OUT. ..................................................................................... 3

A. Dissemination of Notice Packets .............................................................................. 3

B. Motion for Attorneys’ Fees, Costs and Expenses, and Enhancement Awards ......... 4

C. There Are No Filed Objections to the Settlement and Only Six (6) Valid Exclusion Requests Have Been Received ................................................................. 4

D. Challenges to Employment History/Information Requests....................................... 4

E. Potential Additional Class Members ......................................................................... 4

III. THE SETTLEMENT TERMS ............................................................................................... 5

A. Maximum Settlement Amount .................................................................................. 5

B. Net Settlement Amount ............................................................................................. 5

C. Payments From the Net Settlement Amount to California Class Members.............. 6

D. Distribution of Settlement Payments ........................................................................ 6

E. Attorney Fees and Expenses ..................................................................................... 6

F. Enhancement Awards for Plaintiffs .......................................................................... 6

G. PAGA Payment ......................................................................................................... 7

H. Settlement Administration Costs .............................................................................. 7

IV. THE SETTLEMENT MEETS, AND EXCEEDS, THE STANDARDS FOR FINAL APPROVAL ........................................................................................................................... 8

V. CONCLUSION .................................................................................................................... 11


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iii Plaintiffs’ Unopposed Motion for Final Approval of California Class Action Settlement


TABLE OF AUTHORITIES

CASES

Boyd v. Bechtel Corp., 485 F. Supp. 610 (N.D. Cal. 1979) ............................................................................. 9

Class Plaintiffs v. Seattle, 955 F.2d 1268 (9th Cir. 1992) .................................................................................... 8

Eddings v. Health Net, Inc., 2013 WL 3013867 (C.D. Cal. 2013) ........................................................................ 11

Eisen v. Porsche Cars North America, Inc., 2014 WL 439006 (C.D. Cal. 2014) .......................................................................... 11

H&R Block Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96 (2d Cir. 2005) .......................................................................................... 9

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

Holmes v. Continental Can Co., 706 F.2d 1144 1148 (11th Cir.1983) .......................................................................... 5

In re Am. Bank Note Holographics, Inc., 127 F.Supp.2d 418 (S.D.N.Y. 2001) ........................................................................... 4

In re AT & T Mobility Wireless Data Services Sales Tax Litigation, 789 F.Supp.2d 935 (N.D.Ill.2011) .............................................................................. 5

In re Heritage Bond Litig., 546 F. 3d 667 (9th Cir. 2008) ................................................................................... 2, 8

In re MRV Communs., Inc. Derivative Litig., 2013 WL 2897874 (C.D. Cal. 2013) ........................................................................ 10

In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prods. Liab. Litig., 2013 U.S. Dist. LEXIS 123298 (C.D. Cal. 2013) .................................................... 11

Joel A. v. Giuliani, 218 F.3d 132 (2d Cir. 2000) ........................................................................................ 8

Kirkorian v. Borelli, 695 F.Supp. 446 (N.D. Cal. 1988) .............................................................................. 9

Lane v. Facebook, Inc., 2010 WL 9013059 (N.D. Cal. 2010) ........................................................................ 11

Linney v. Cellular Alaska P’ship, 151 F.3d 1234 (9th Cir. 1998) .................................................................................... 8


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iv Plaintiffs’ Unopposed Motion for Final Approval of California Class Action Settlement


Mandujano v. Basic Vegetable Products, Inc. 541 F.2d 832 (9th Cir. 1976) ...................................................................................... 4

Morey v. Louis Vuitton N. Am., Inc., 2014 WL 109194 (S.D. Cal. 2014) .......................................................................... 10

Officers for Justice v. Civil Service Comm. of City and County of San Francisco, 688 F. 2d 615 (9th Cir. 1982) ..................................................................................... 8

Rodriguez v. West Publishing Corp., 563 F.3d 948 (9th Cir. 2009) ...................................................................................... 9

OTHER AUTHORITIES

4 Newberg § 11.41 p. 87 ...................................................................................................... 11


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1 Plaintiffs’ Unopposed Motion for Final Approval of California Class Action Settlement


I. INTRODUCTION

Plaintiffs Edgar Viceral and David Krueger (“Plaintiffs”) and Defendant Mistras Group, Inc.

(“Defendant”) (collectively, the “Parties”) present this proposed Settlement – achieved after an extensive

mediation and additional negotiations – for Final Approval with respect to the California Class. On

October 11, 2016, the Court granted preliminary approval of the Settlement as to the Rule 23 California

Class Action, and further granted Final Approval of the Settlement as to the Fair Labor Standards Act

(“FLSA”) Class. (Docket No. 83). The entirety of the Settlement involves a non-reversionary

$6,000,000 settlement (“Settlement”) for the benefit of the California Class and the nationwide FLSA

Class.

Plaintiffs and the Settlement Classes are pleased to inform the Court that as of this filing date,

which is a full week following the expiration of the objection and opt-out deadline, the following Notice

data has been compiled by the Settlement Administrator, which has filed the declaration of Stephen

Gomez herewith:

The Settlement Administrator has mailed 1,324 Notice Packets to the California Class Members;

Only 9 of these Notice Packets have to date been returned as undeliverable;1

No objections have been received to any portion of the Settlement, including the Enhancement

Awards for the Representative Plaintiffs and the Fee and Expense Award to Class Counsel;

The Settlement Administrator has received only 6 valid exclusion requests, and an additional 6

deficient requests have been received, which are being followed up on by the Settlement

Administrator.

This Settlement requires Defendant to pay $6,000,000 to a California Class and a FLSA Class,

which together consist of 5,150 Examiners, Technicians, and Inspectors. Importantly, the entire

$6,000,000 will be paid out and thus, absolutely no funds will revert to the Defendant. Furthermore,

each Class Member in both the California and FLSA Classes will receive his or her share without the

need to submit a claim form.

1 Only 9 notice packets came back as undeliverable. The Claims administrator intends to use additional searching methods in order to find good addresses for these nine class members.


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As stated above, the preliminary settlement approval motion sought two differing orders, both of

which were granted by the Court. The first order sought and granted was the preliminary approval of the

California Rule 23 Class Action Settlement, which in turn would then trigger the mailing of Notice to

the California Class Members; and the second order sought and granted was the Final Approval of the

FLSA collective action settlement. As of this time, and consistent with the Court’s order granting

preliminary approval of the California claims, the claims administrator has disseminated the required

Notice to the Rule 23 California Class Members. The success of the Notice program is amply set forth

herein and in the declaration of Stephen Gomez filed herewith.

No later than fourteen (14) calendar days following the Effective Date of the Settlement with

regard to the California Rule 23 Class Action Settlement, the Settlement Administrator will then be

empowered to mail the settlement checks to the California Class Members. Fifteen (15) calendar days

following the Effective Date of the Settlement, the Administrator will also be empowered to mail the

settlement checks to the FLSA collective action members, who will then have the opportunity to elect to

either cash the checks containing the appropriate “opt-in” and release language thereon, or to elect not to

do so and thus retain their FLSA rights. This all conforms to the Court’s dual approval orders issued in

Docket No. 83, and with the Court’s Supplemental Order on Preliminary Approval Regarding Notice

and Final Approval Hearing Dates and Deadlines. (Docket No. 85, dated October 19, 2016).

An objective evaluation of the Settlement confirms that the relief negotiated on behalf of the

California Class is fair, adequate, and reasonable. In re Heritage Bond Litig., 546 F. 3d 667, 674-75 (9th

Cir. 2008)(a class settlement may be approved if it is “fair, adequate, and reasonable.”). The Parties

negotiated the Settlement at arm’s length under the guidance of Mr. Mark Rudy, a well-regarded

mediator specializing in resolving wage and hour class actions. Mr. Rudy stewarded the Parties through

a mediation that lasted over ten (10) hours on one day and then through several additional weeks of

negotiations that involved substantial back and forth between the Parties until a settlement was

eventually reached. What’s more, as set forth in Plaintiffs’ Preliminary Approval Motion and Plaintiffs’

Fee Motion, the case was thoroughly investigated and litigated prior to the Parties delving into

settlement discussions. (Docket Nos. 70-1, Declaration of Stanley Saltzman in Support of Plaintiffs’

Motion for Preliminary Approval of Class Action and Collective Action Settlement (“Saltzman Decl.”


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¶¶ 7-11); and 86).2

The response of the California Settlement Class Members supports the Court’s finding at

Preliminary Approval that the Settlement is fair, adequate, and reasonable. No California Class Member

has objected to the Settlement after receiving the requisite Notice thereof. Further of the 1,324 persons

on the class list, of which all but 9 were successfully mailed the notice, only 6 valid exclusion requests

to the Settlement have been received, and an additional 6 deficient such requests have been received,

which are being followed up on by the Settlement Administrator. (Declaration of Stephen Gomez,

Project Manager, Simpluris, “Gomez Decl.” at ¶15).

In short, the Settlement meets the criteria for Final Approval as it is well within the range of what

would be fair, adequate, and reasonable. Thus, Plaintiffs now respectfully request that the Court take the

final step in the approval process by granting the requested Final Approval of the California Class

Action Settlement.

II. THE SETTLEMENT PROCESS HAS BEEN DUTIFULLY ADHERED TO AND

SUCCESSFULLY CARRIED OUT.

A. Dissemination of Notice Packets

As noted above, Preliminary Approval was granted on October 11, 2016. At that time, the Court

appointed Simpluris as the Settlement Administrator. The Settlement Administrator has complied with

this Court’s orders concerning dissemination of the Notice Packet by regular mail. (Gomez Decl. ¶¶ 5-

15). In addition, the Settlement Administrator operated a toll-free telephone number for Class Members

to call with inquiries concerning the Settlement and operated a website that contained the Settlement

details along with relevant documents. (Gomez Decl. ¶ 4). The Settlement Administrator has provided

the Court with a full report of its activities as set forth in the contemporaneously filed declaration of

Stephen Gomez.

/ / /

2 Consistent with the Northern District’s Procedural Guidance on Class Action Settlements, counsel have avoided re-stating in full matters previously dealt with in either the previously filed Motion for Approval of Attorneys’ Fees, Costs and Enhancement Awards, (Docket No. 86) and/or the prior Motion for Preliminary Approval (Docket No. 70).


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B. Motion for Attorneys’ Fees, Costs and Expenses, and Enhancement Awards

Pursuant to this Court’s order granting Preliminary Approval, Class Counsel were ordered to file

their motion for a Fee and Expense Award, and for Enhancement Awards for the representative

Plaintiffs, by no later than two weeks before the Objection/Exclusion Deadline of December 22, 2016.

That motion was timely filed on December 6, 2016. (Docket No. 86). Additionally, the motion was

posted to the Case website maintained by Simpluris, to enable all the Class Members to easily review

the same, should they so desire. (Gomez Decl. ¶ 4).

C. There Are No Filed Objections to the Settlement and Only Six (6) Valid Exclusion

Requests Have Been Received

The Ninth Circuit and other federal courts have made clear that the number or percentage of

class members who object to or opt out of the settlement is a factor of great significance. See Mandujano

v. Basic Vegetable Products, Inc. 541 F.2d 832, 837 (9th Cir. 1976); see also In re Am. Bank Note

Holographics, Inc., 127 F.Supp.2d 418, 425 (S.D.N.Y. 2001) (“It is well settled that the reaction of the

class to the settlement is perhaps the most significant factor to be weighed in considering its

adequacy.”).

Here, both the Objection Deadline and the Exclusion Deadline were December 22, 2016. As of

the date of this motion, a full one week thereafter, no objections have been filed with the Court.

Additionally, only the 6 previously alluded to Exclusion Requests have been received by the Settlement

Administrator. An additional 6 deficient exclusions have been received and are being followed up on.

Counsel will file a supplemental report with respect to these requests at least one week prior to the final

approval hearing date. (Gomez Decl. ¶¶ 15-17).

D. Challenges to Employment History/Information Requests

As of this date, Simpluris has received two (2) disputes of work weeks submitted by Class

Members through the California Class Form. After reviewing both disputes, it was determined that both

were invalid and that Defendant’s records remained correct. (Gomez Decl. ¶17).

E. Potential Additional Class Members

As of this date, Simpluris has been contacted by twenty-four (24) individuals who inquired

about being part of the California Class. Simpluris forwarded their information to Defense Counsel. As


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of the date of this declaration, Simpluris has been advised by Defendant’s counsel that Defendant has

concluded that while many of the twenty four individuals were properly excluded from the class, some

of them may have worked as either an examiner or a technician at some point during the class period.

This investigation is ongoing as of this date, and therefore this also will be further updated at the time of

the submission of the Supplemental Declaration one week prior to the Final Approval Hearing. ( Gomez

Decl. ¶14).

III. THE SETTLEMENT TERMS

As described in the motion for Preliminary Approval, the basic Settlement terms are as follows:

A. Maximum Settlement Amount

The Maximum Settlement Amount (“MSA”) that Defendant will pay is Six Million Dollars

($6,000,000). This sum includes payments made to Class Members, Enhancement Awards to Plaintiffs,

Administration Costs, a Fee and Expense Award, Employee Taxes, and a PAGA Payment. No portion

of the MSA will revert to Defendant under any circumstance. (Docket No. 70-1; Saltzman Decl. ¶ 17).

B. Net Settlement Amount

The Net Settlement Amount (“NSA”) is comprised of the funds remaining from the MSA,

following deductions of the Court-approved awards for the following items: (1) the Administration

Costs,3 ( 2) the Fee and Expense Award (not to exceed $2,000,000 and actual costs, which currently total

$44,575.02, respectively), (3) the Enhancement Awards to Plaintiffs (not to exceed $8,500.00 in total),

and (4) the PAGA Payment ($20,000.00). (Docket No. 70-1; Saltzman Decl. ¶ 24).

The NSA is estimated to be $3,892,924.98. (Gomez Decl. ¶ 19). 65% of the NSA will be

allocated to the California Class Fund and 35% will be allocated to the FLSA Class Fund. The funds

awarded will be distributed to Settlement Class Members on a proportional basis based on the amount of

weeks a Class Member worked (Docket No. 70-1; Saltzman Decl. ¶ 25).4 This allocation, including the

California Rule 23/FLSA division, was addressed in full in Plaintiffs’ Joint Supplemental Brief filed on

3 The Claims Administration costs totaled $39,000. (Gomez Decl. ¶ 22). 4 A class action settlement need not benefit all class members equally. Holmes v. Continental Can Co., 706 F.2d 1144, 1148 (11th Cir.1983); In re AT & T Mobility Wireless Data Services Sales Tax Litigation, 789 F.Supp.2d 935, 979–80, (N.D.Ill.2011). Unequal allocations can be based on legitimate considerations. Holmes, 706 F.2d at 1148; In re AT & T, 789 F.Supp.2d at 979–80.


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August 9, 2016, at pages 8 – 10 thereof, (Docket No. 72) and was approved in the Court’s Order dated

October 11, 2016, Docket No. 83, at pages 16 – 17 thereof.

C. Payments From the Net Settlement Amount to California Class Members

The average estimated payouts for the California Class Members is $1,921.21, and the highest

estimated payment is $6,101.17. For those persons receiving both a California payment and an FLSA

payment, the average estimated payment is $2,498.75, and the highest estimated payment is $6,889.62.

(Gomez Decl. ¶ 21).

D. Distribution of Settlement Payments

The California Class Members are not required under the Settlement to submit claim forms in

order to receive compensation. Rather, they will automatically receive their settlement payments after

the Effective Date of the Settlement. The only exception would be for the few California Class Members

who timely exclude themselves from the Settlement. As mentioned, only 6 such valid exclusion requests

have been submitted as of the date of the filing of this motion, which is a full week following the

expiration of the objection/exclusion deadline. (Gomez Decl. ¶¶ 15-17).

E. Attorney Fees and Expenses

As discussed in further detail in Plaintiffs’ Motion for Attorneys’ Fees, Costs, and Enhancement

Awards, timely filed on December 6, 2016 (Docket No.86), and subject to Court approval, the Parties

allocated thirty three and one-third percent (33.33%) of the MSA as the Fee Award to Plaintiffs’

Counsel and $44,575.02 as the Expense Award to reimburse Plaintiffs’ Counsel for the actual costs they

incurred in pursuing this Action.

F. Enhancement Awards for Plaintiffs

An Enhancement Award of Seven Thousand Five Hundred Dollars ($7,500.00) is requested for

Plaintiff Edgar Viceral, and a payment of One Thousand Dollars ($1,000.00) is requested for Plaintiff

David Krueger, subject to the approval of the Court. These Enhancement Awards are for their roles in

initiating this Action and acting as the Class Representatives, for services provided in furtherance of this

Action, for the risks undertaken for payment of costs in the event this Action was unsuccessful, for any

stigma they may suffer going forward due to the public information available via the internet of their

having filed a class action against an employer, and for their agreement to provide a release of claims.


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Counsel is requesting a larger amount for Mr. Viceral as the settlement provides for a full general

release of all of his claims, including a full 1542 waiver, while Mr. Krueger is requesting a lesser

amount and retaining his right to continue his previously filed separate lawsuit for other claims not

included in the class action. This is more fully addressed in the separately filed motion for Fees, Costs

and Enhancement Awards, at Docket No. 86, including the respective declarations of the two

Representative Plaintiffs, filed therewith, at Docket Nos. 89and 90.

G. PAGA Payment

The Settlement allocates Twenty Thousand Dollars ($20,000.00) to settle the portion of the

case brought under the California Labor Code’s Private Attorney General Act of 2004 (“PAGA”).

Seventy-Five percent (75%) of the total PAGA Payment, which amounts to Fifteen Thousand Dollars

($15,000.00), will be paid to the California Labor & Workforce Development Agency. The remainder of

the PAGA payment, twenty-five percent (25%) or Five Thousand Dollars ($5,000.00), shall be included

in the California Class Fund. (Docket No. 70-1; Saltzman Decl. ¶ 20). This element of the Settlement

Agreement was also the subject of full supplemental briefing before the Court, within the previously

alluded to Joint Supplemental Brief dated August 9, 2016, Docket No. 72, at pages 15 – 17 thereof, and

again in the entire Second Joint Supplemental Brief filed on August 30, 2016, Docket No. 82, at pages 1

– 7 thereof. Following this extensive briefing, the Court granted preliminary approval to the proposed

allocation of $20,000.00, in its Order Granting Preliminary Approval, Docket 83, filed on October 11,

2016, and specifically at pages 13 – 16 thereof.

Since the Approval Order issued by the Court, Notice has been disseminated to all the California

Class Members, plus to the Attorney General’s office in California in the context of the CAFA notice

mailings, (Exhibit C to the first Joint Supplemental Brief found at Docket 72-1), and no comments or

objections to this aspect of the settlement have been received.

H. Settlement Administration Costs

As discussed in Plaintiffs’ Preliminary Approval Motion, Plaintiffs sought and received “not to

exceed” bids for the Settlement Administration Costs, which Simpluris then agreed to undertake for the

sum of $50,000. (Docket No. 70-1; Saltzman Decl. ¶ 22). The actual costs of the settlement

administration turned out to be less and thus the Settlement Administrator has agreed to accept $39,000


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as compensation in full for the services provided. (Gomez Decl. ¶ 22).

IV. THE SETTLEMENT MEETS, AND EXCEEDS, THE STANDARDS FOR FINAL

APPROVAL

Federal Rule of Civil Procedure 23(e) provides that any compromise of a class action must

receive Court approval. The Court has broad discretion to grant such approval and should do so where

the proposed settlement is “fair, adequate, reasonable, and not a product of collusion.” Hanlon v.

Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998); Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir.

2000). In determining whether a proposed settlement should be approved, the Ninth Circuit has a

“strong judicial policy that favors settlement, particularly where complex class action litigation is

concerned.” In re Heritage Bond Litigation, 2005 WL 1594403 (C.D. Cal. 2005) (citing Class Plaintiffs

v. Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992)).

There is no single standard for determining whether any given settlement is fair. “Ultimately the

district court’s determination is . . . ‘an amalgam of delicate balancing, gross approximations and rough

justice.’” Officers for Justice v. Civil Service Comm. of City and County of San Francisco, 688 F. 2d

615, 625 (9th Cir. 1982). In making its determination, the Court should weigh the benefits that the

settlement will realize for the class against the uncertainty of litigation and the possibility that the class

members would obtain no relief in the absence of a settlement. See, Linney v. Cellular Alaska P’ship,

151 F.3d 1234, 1242 (9th Cir. 1998) (“...it is the very uncertainty of outcome in litigation and avoidance

of wasteful and expensive litigation that induce consensual settlements.”)

Here, Plaintiffs brought this class and collective action to secure important workplace protections

for the Examiners, Technicians, and Inspectors employed by the Defendant in California and across the

country, and have successfully secured a proposed Settlement that provides substantial benefits for them.

The fairness, reasonableness and adequacy of any class action settlement depends on “the relative

strength of the plaintiffs’ case; the risk, expense, complexity, and likely duration of further litigation; the

risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent

of discovery completed and the stage of the proceedings; the experience and views of counsel; ... and the

reaction of class members to the proposed settlement.” Hanlon v. Chrysler Corp., supra, at 1026. In this

case, all standards for approval are met, and the more complete discussion of the fairness of the


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Settlement presented in the Motion for Preliminary Approval applies equally here, and is respectfully

referred to herein. (Docket No. 70.)

Arms-Length Negotiation - The Ninth Circuit has shown longstanding support of settlements

reached through arm’s length negotiation by capable opponents. In Rodriguez v. West Publishing Corp.,

563 F.3d 948 (9th Cir. 2009), the Ninth Circuit expressly opined that courts should defer to the “private

consensual decision of the [settling] parties.” Id. at 965 (citing Hanlon, at 1027). The primary reason for

deferring to such settlements is the experience of counsel and the participation of a neutral, both of

which factors are present here. The Rodriguez court “put a good deal of stock in the product of an

arm’s-length, non-collusive, negotiated resolution, and have never prescribed a particular formula by

which that outcome must be tested.” Rodriguez, at 965 (citations omitted). As the Court explained, “In

reality, parties, counsel, mediators, and district judges naturally arrive at a reasonable range for

settlements by considering the likelihood of a plaintiffs’ or defense verdict, the potential recovery, and

the chances of obtaining it, discounted to present value.” “A presumption of fairness, adequacy, and

reasonableness may attach to a class settlement reached in arm’s length negotiations between

experienced, capable counsel after meaningful discovery.” H&R Block Stores, Inc. v. Visa U.S.A., Inc.,

396 F.3d 96, 116 (2d Cir. 2005); see also, Kirkorian v. Borelli, 695 F.Supp. 446, 451 (N.D. Cal. 1988)

(opinion of experienced counsel is entitled to considerable weight); Boyd v. Bechtel Corp., 485 F. Supp.

610, 622 (N.D. Cal. 1979) (recommendations of plaintiffs’ counsel should be given a presumption of

reasonableness).

The Settlement Has No Obvious Deficiencies - The proposed Settlement has no obvious

deficiencies. The fact that no objections have been filed and so few Exclusions have been requested

from Class Members is a testament to how favorably this Settlement has been received by the Class

Members. Furthermore, the proposed Settlement is the product of extensive discovery (both formal and

informal) and the involvement of an extremely experienced Mediator. (Docket No. 70-1 Saltzman Decl.

¶¶ 7-14). In short, full and complete arm's-length negotiations have occurred. Throughout this

litigation, the Parties have vigorously asserted their respective positions. Defendant has been

continuously represented by very capable counsel who have taken every opportunity to develop all

aspects of their defenses. With the benefit of the significant exploration of the facts and law during the


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pleading stage as well as the prosecution and discovery phase of the case, Class Counsel was able to

fully consider the strengths and weaknesses of the case. Accordingly, by the time the Settlement was

reached, both Parties were capable of being fully informed in regard to all aspects of the case. (Id.).

Based on the foregoing, Plaintiffs and Class Counsel submit that the Settlement set forth in the

Settlement Agreement is fair, adequate and reasonable, and is in the best interests of Plaintiffs and the

Class Members. Defendant has also expended substantial amounts of time, energy and resources in

connection with the litigation and the negotiation of the settlement now before the Court, and unless this

Settlement is approved, will be required to continue to incur further fees, plus ongoing time, energy and

resources. Defendant has, therefore, agreed to settle in the manner and upon the terms set forth in the

Settlement Agreement.

The Respective Risks of Continued Litigation - Throughout this litigation, Plaintiffs have

argued that Defendant should be liable for all claims raised in the Complaint. Defendant, on the other

hand, has steadfastly maintained that Class Members did not work off the clock, received all required

meal and rest breaks, and that they were properly compensated for all hours worked. In furtherance of

its defense, Defendant assembled over 500 declarations from class members to oppose this action.

Plaintiffs were cognizant of the significant hurdles they would have had to overcome in order to obtain

and maintain class status, not just in terms of the requirements of Federal Rule of Civil Procedure 23 but

also those applicable to collective actions under the FLSA. Even if Plaintiffs had been successful at

certification, successfully proving the merits of the underlying claims was not certain. This Settlement

represents a well-crafted compromise of the divergent positions of the Parties that provides substantial

benefits for the Class Members. Each side evaluated the strengths and weaknesses of their case and

independently came to the conclusion that this Settlement represents a responsible means of addressing

Plaintiffs’ claims and Defendant’s defenses.

The Complexity, Expense and Likely Duration of the Litigation - Another factor considered by

courts at the final approval phase is the complexity, expense and likely duration of the litigation. Morey

v. Louis Vuitton N. Am., Inc., 2014 WL 109194, *5 (S.D. Cal. 2014); In re MRV Communs., Inc.

Derivative Litig., 2013 WL 2897874, *2 (C.D. Cal. 2013). In applying this factor, the Court should

weigh the benefits of the settlement against the expense and delay involved in achieving an equivalent or


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even more favorable result at trial. Lane v. Facebook, Inc., 2010 WL 9013059, *5 (N.D. Cal. 2010).

“Settlement avoids the complexity, delay, risk and expense of continuing with the litigation and will

produce a prompt, certain, and substantial recovery for the Plaintiff class.” Eddings v. Health Net, Inc.,

No. CV 10-1744-JST RZX, 2013 WL 3013867, at *3 (C.D. Cal. 2013). Here, litigating the case through

to trial would have been expensive, involved substantial risk and equally substantial uncertainty, and

would not have been fully resolved for some time. In contrast, the proposed settlement provides

significant and certain compensation that is available now as opposed to potentially and hypothetically

sometime in the distance future.

Additionally, employment cases (including wage and hour cases) can be expensive and time-

consuming to prosecute. Given the uncertainty of certification, there was also the added risk that if class

and collective action status was not achieved and maintained, that the alternative – i.e., individual

litigation – would tax private and judicial resources over a period of years. As such, the Settlement in

this case is consistent with the “overriding public interest in settling and quieting litigation” that is

“particularly true in class action suits” and thus, provides another reason to approve the Settlement.

Eisen v. Porsche Cars North America, Inc., 2014 WL 439006, at *3 (C.D. Cal. 2014); In re Toyota

Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prods. Liab. Litig., 2013 U.S. Dist.

LEXIS 123298, *253-54 (C.D. Cal. 2013); 4 Newberg § 11.41 at 87-89.

V. CONCLUSION

The Parties have negotiated a fair and reasonable Settlement of a case that provides relief that

likely would never have been realized but for this class Action. The Parties have reached this Settlement

following extensive formal and informal discovery, litigation, ongoing case discussions and arm’s length

negotiations. Accordingly, Plaintiffs respectfully request that the Court enter the proposed Final

Approval Order and grant the relief requested in this Motion.

DATED: December 29, 2016 MARLIN & SALTZMAN, LLP SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP

UNITED EMPLOYEES LAW GROUP, P.C.

By: /s/ William A. Baird Attorneys for Plaintiffs, the California Settlement Class and FLSA Settlement Class


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1 [Proposed] Order Granting Plaintiffs’ Motion for Final Approval of California Class Action

Settlement; Motion for Attorneys’ Fees, Costs, Enhancement Awards; Directing Entry of JudgmentCASE NO. 3:15-cv-02198-EMC




Plaintiffs,

v.


Defendant.

)))))))))))))) ) ) ) ) ) )


[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CALIFORNIA CLASS ACTION SETTLEMENT; MOTION FOR ATTORNEYS’ FEES, COSTS, AND ENHANCEMENT AWARDS; AND DIRECTING ENTRY OF JUDGMENT DATE: February 2, 2017 TIME: 1:30 p.m. CTRM: 5

Plaintiffs’ Unopposed Motions for Final Approval of the California Class Action Settlement and

Attorneys’ Fees, Costs, and Enhancement Awards, filed by Plaintiffs Edgar Viceral and David Krueger

(“Plaintiffs”) in the matter of Viceral and Krueger, et al. v. Mistras Group, Inc., et al., Case No. 3:115-

cv-02198-EMC, came on for hearing regularly in Courtroom 5 of the above captioned court, the

Honorable Edward M. Chen presiding, on February 2, 2017 at 1:30 p.m. Appearing at the hearing was

counsel for Littler Mendelson, P.C. for Defendant and counsel for Schneider Wallace Cottrell Konecky

Case 3:15-cv-02198-EMC Document 92-1 Filed 12/29/16 Page 1 of 6

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Wotkyns LLP, and Marlin & Saltzman, LLP on behalf of Plaintiffs and the Classes.

Having reviewed the papers and documents presented, having heard the statements of counsel,

having considered the matter, the Court HEREBY ORDERS as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:

1. This Order incorporates by reference the definitions in the Settlement Agreement found

at Docket No. 70-2 (“Settlement” or “Settlement Agreement”) as though fully set forth herein, and all

terms defined therein shall have the same meaning as set forth in the Settlement Agreement.

2. This Court has jurisdiction over the claims of the California Settlement Class Members

asserted in this proceeding, personal jurisdiction over Plaintiffs and Defendant, and subject matter

jurisdiction to approve the Settlement.

3. The Court hereby approves the settlement terms set forth in the Settlement Agreement

and finds that the Settlement is, in all respects, fair, adequate and reasonable, and further finds that

Plaintiffs have satisfied the standards and applicable requirements for final approval of the California

Class Action Settlement under Rule 23 of the Federal Rules of Civil Procedure.

4. On October 11, 2016, the Court issued its Order Granting Plaintiffs’ Motion for

Preliminary Approval of a Class and Collective Action Settlement, and granting Final Approval therein

to settlement of the Fair Labor Standards Act (“FLSA”) Settlement Agreement requested therein. At that

time, the Court directed the Parties to file an updated proposed order setting forth all relevant dates and

deadlines following the Court’s Order. (Docket. No. 83). On October 19, 2016, the Court approved the

updated order that set forth all dates and deadlines triggered by the Court’s Order on October 11, 2016.

(Docket. No. 85).

5. In the Order on October 11, 2016, the Court conditionally certified the California Class

for Settlement purposes. The Court hereby grants final certification approval for settlement purposes, to

the California Class, as follows:

California Class: The California Class is defined as all current and former hourly, non-exempt Technicians, Inspectors, and Examiners employed by Defendant in California at any time between April 10, 2011 up through the date of Final Approval.


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6. As to the California Class, the Court hereby finds that: (1) the settlement amount is fair

and reasonable to the California Class Members when balanced against the probable outcome of further

litigation relating to class certification, liability and damages issues, and potential appeals; (2) significant

informal discovery, investigation, research, and litigation have been conducted such that counsel for the

Parties at this time are able to reasonably evaluate their respective positions; (3) settlement at this time

will avoid substantial costs, delay, and risks that would be presented by the further prosecution of the

litigation; and (4) the proposed Settlement has been reached as the result of intensive, serious, and non-

collusive negotiations between the Parties. Accordingly, the Court finds that the Stipulation of

Settlement was entered into in good faith.

7. Notice given to the California Class Members was reasonably calculated under the

circumstances to apprise the Class of the pendency of this class action, of all material elements of

the proposed Settlement, and of their opportunity to exclude themselves from, object to, or comment

on the Settlement and to appear at the Final Approval Hearing. The notice was reasonable and the

best notice practicable under the circumstances. A reasonable opportunity has been afforded to the

members of the Class to participate in this hearing. Accordingly, this Court hereby finds that notice

program described in the Settlement Agreement and completed by the Settlement Administrator

complied fully with the requirements of due process, the Federal Rules of Civil Procedure, and all other

applicable laws.

8. All California Settlement Class Members (i.e. those who have not exercised their right to

opt out of the Settlement) are bound by this Final Approval Order and Judgment and by the Settlement

embodied therein, including the releases provided for in the Settlement and this Final Approval Order

and Judgment. As of the Effective Date of Settlement, by operation of the entry of this Final Approval

Order and Judgment, each member of the Settlement Class, including Plaintiffs, shall be deemed to have

fully released, waived, relinquished and discharged, to the fullest extent permitted by law, all Released

Claims that he or she may have against the Releasees.

9. California Class Member Release: "California Class Released Claims" means all

claims, demands, rights, liabilities and causes of action that were or could have been asserted in the


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lawsuit (whether in tort, contract, or otherwise) for violation of the California Labor Code, the California

Business & Professions Code, the Labor Code Private Attorneys General Act of 2004, the applicable

Industrial Welfare Commission Wage Orders or any similar state or federal law, including but not

limited to those based in any part on the FLSA, whether for unpaid wages, economic damages, non-

economic damages, liquidated damages, punitive damages, restitution, penalties, other monies, or other

relief arising out of, relating to, or in connection with any facts and/or claims pled in the class action

complaints, filed by Edgar Viceral and/or David Krueger, and/or in the Consolidated First Amended

Class Action Complaint filed by Plaintiffs in the Lawsuit, which are or could be the basis of claims that

Defendant failed to provide all wages and overtime wages due, failed to pay the minimum wage, failed

to provide timely or accurate final paychecks, failed to timely pay compensation, engaged in

recordkeeping violations, failed to provide accurate itemized wage statements, failed to provide meal

breaks, failed to authorize and permit rest breaks, and/or engaged in unfair business practices based on

the foregoing violations, at any times during the California Class Period.

10. Neither this Settlement nor this Final Approval Order and Judgment is an admission

of liability, fault, or wrongdoing by Defendant, or any of the Releasees, nor a finding of the validity

of any claims in the Action or any violation of law. Neither this Final Approval Order and Judgment,

the Settlement, nor any document referred to herein, nor any action taken to carry out the Settlement

is, may be construed as, or may be used as, an admission or concession by or against Defendant, or

any of the Releasees, of any fault, wrongdoing, or liability whatsoever. Neither this Final Approval

Order and Judgment, any term or provision of the Settlement, nor any of the negotiations or proceedings

connected with it, shall be offered or received in evidence in any pending or future civil, criminal or

administrative action or proceeding, other than such proceedings that may be necessary to consummate

or enforce the Settlement; however, Defendant or any Releasee may use the Settlement and/or any

related document, in any action that may be brought against them in order to support a defense or

counterclaim based on principles of res judicata, collateral estoppel, release, good faith settlement,

judgment bar or reduction, accord and satisfaction, or any other theory of claim preclusion or issue

preclusion or similar defense or counterclaim.


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11. The Court hereby finds the Individual Settlement Payments provided for under the

Settlement to be fair and reasonable in light of all the circumstances. The Court, therefore, orders the

calculations and the payments to be made and administered in accordance with the terms of the

Settlement.

12. The request for settlement administration costs in the amount of $____________ is

hereby granted and shall be paid to the Settlement Administrator, Simpluris, pursuant to the terms of the


13. The Settlement allocates Twenty Thousand Dollars ($20,000.00) to settle the portion of

the case brought under the California Labor Code’s Private Attorney General Act of 2004 (“PAGA”).

Seventy-Five percent (75%) of the total PAGA Payment, Fifteen Thousand Dollars ($15,000.00) will be

paid to the California Labor & Workforce Development Agency. The remainder of the PAGA payment,

twenty-five percent (25%) or Five Thousand Dollars ($5,000.00), shall be included in the California

Class Fund. The Court hereby approves the above allocation and apportionment.

14. The Court further finally approves Class Counsel’s request for attorneys’ fees of one-

third of the Maximum Settlement Amount, or $2,000,000. This amount is justified under the common

fund doctrine, the range of awards ordered in this District and Circuit, the excellent results obtained,

substantial risk borne by Class Counsel in litigating this matter, the high degree of skill and quality of

work performed, financial burden imposed by the contingency basis of Class Counsel’ representation of

Plaintiff and the Class Members, and additional work required of them to bring this Settlement to

conclusion. The Court finds the fees award further supported by the lodestar crosscheck, whereby it

finds that Schneider Wallace Cottrell Konecky Wotkyns LLP, Marlin & Saltzman, LLP, and United

Employees Law Group’s hourly rates are reasonable, the estimated hours expended are reasonable. The

Court finally approves Class Counsel’s request for actual costs in the amount of $44,575.02.

15. Aside from the costs awarded herein or in said order on Fees, Costs and Enhancement

Awards, no other costs, fees or other relief shall be awarded, either against Defendant or related persons

or entities, as defined in the Settlement Agreement, or from the award to the Settlement Classes.

/ / /


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16. The Court hereby reaffirms its appointment of Schneider Wallace Cottrell Konecky

Wotkyns LLP, Marlin & Saltzman, LLP, and United Employees Law Group, as Counsel for the

California Class, and Plaintiffs Edgar Viceral and David Krueger, as Class Representatives for the

California Class.

17. The Court further orders that the timeline set forth for the administration of the settlement

at Docket No. 85 shall be followed.

18. Pursuant to the terms of the Settlement Agreement, and this Court’s prior Order Granting

Final Approval of the FLSA Settlement (Docket No. 83), the instant action is hereby dismissed, with

prejudice, subject to Paragraph 19 and 20 below.

19. Without affecting the finality of this Final Approval Order and Judgment, the Court

reserves continuing and exclusive jurisdiction over the parties to the Settlement, including Defendant

and Settlement Class Members, to administer, supervise, construe and enforce the Settlement in

accordance with its terms for the mutual benefit of the parties.

20. Judgment is entered in accordance with the findings in this Order, and the Order of Final

Approval as to the FLSA Settlement. This Judgment is the Final Judgment in the suit as to all Settlement

Class Members who have (1) not excluded himself/herself from the Settlement or (2) in the case of

FLSA Class Members, those who have elected not to opt into the settlement by cashing their settlement

check. The Court finds that there is no just reason for delay and expressly directs the Clerk of the Court

to enter Judgment immediately.

IT IS SO ORDERED.

DATED: ___________________ ___________________________________ Hon. Edward M. Chen United States District Judge


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- 1 - [Proposed] Judgment




EDGAR VICERAL and DAVID KRUEGER, individually and on behalf of all others similarly situated, Plaintiffs, v. MISTRAS GROUP, INC.; and DOES 1-50, inclusive, Defendants.

CASE NO. 13:15-CV-02198-EMC (Hon. Edward M. Chen)

CLASS ACTION

[PROPOSED] JUDGMENT


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- 2 - [Proposed] Judgment


On this ____ day of February, 2017, it is HEREBY ADJUDGED AND DECREED

PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 58 AS FOLLOWS:

(1) On February ___, 2017, this Court entered the Order Granting Final Approval of

California Class Action Settlement and Motion for Attorneys’ Fees, Costs, and

Enhancement Awards (the “Final Approval Order”).

(2) For the reasons stated in the above-referenced Final Approval Order, judgment is entered

accordingly in this case, and the case is hereby dismissed with prejudice.

(3) The Clerk shall file this Final Judgment on the docket of this case.

IT IS SO ORDERED.

DATED:___________________ Hon. Edward M. Chen

United States District Judge


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Declaration of Stan Saltzman ISO Plaintiffs’ Motion for Final ApprovalCase No. 3:15-Cv-02198-EMC

MARLIN & SALTZMAN, LLP Stanley D. Saltzman, Esq. (SBN 090058) William A. Baird, Esq. (SBN 192675) 29229 Canwood Street, Suite 208 Agoura Hills, California 91301 Telephone: (818) 991-8080 Facsimile: (818) 991-8081 [email protected] [email protected] SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP Carolyn Hunt Cottrell, Esq. (SBN 166977) Nicole N. Coon, Esq. (SBN 286283) 2000 Powell Street, Suite 1400 Emeryville, California 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 [email protected] [email protected] UNITED EMPLOYEES LAW GROUP, P.C. Walter Haines, Esq. (SBN 71075) 5500 Bolsa Avenue, Suite 201 Huntington Beach, California 92649 Telephone: (888) 474-7242 Facsimile: (562) 256-1006 Attorneys for Plaintiffs and the Settlement California Class and FLSA Class




Plaintiffs,

v.


Defendant.

)))))))))))))) ) )

CASE NO. 3:15-cv-02198-EMC (Assigned to Hon. Edward M. Chen)

CLASS ACTION

DECLARATION OF STAN SALTZMAN IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR FINAL APPROVAL OF CALIFORNIA CLASS ACTION SETTLEMENT

DATE: February 2, 2017 TIME: 1:30 p.m. CTRM: 5

Case 3:15-cv-02198-EMC Document 93 Filed 12/29/16 Page 1 of 3

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2


I, Stan Saltzman, Esq., declare as follows:

I am an attorney at law licensed to practice in the State of California and in this United States

District Court. I am a founding Partner of Marlin & Saltzman, LLP attorneys of record for Plaintiffs. I

make this declaration in support of Plaintiffs’ Unopposed Motion for Final Approval of California Class

Action Settlement (“Motion”). I testify to the foregoing facts of my own personal knowledge and, if

called as a witness, could and would testify competently thereto under oath.

THE SETTLEMENT IS FAIR, ADEQUATE, AND REASONABLE

1. In support of Plaintiffs’ Motion, Plaintiffs’ cite my declaration filed in support of Plaintiffs’

Motion for Preliminary Approval. (Docket No. 70-1). This declaration, along with the Declaration of

Co-Counsel Carolyn Hunt Cottrell filed in connection with this Motion, extensively lays out the terms of

the Settlement, the events leading up to it, and the events that occurred in this action thereafter. Further,

the declaration I filed in support of Plaintiffs’ Fee Motion lays out additional information including my

firm’s extensive experience and history related to class action litigation. (Docket No. 88). Rather than

repeat those facts here, I incorporate them by reference.

2. For the many reasons set forth at preliminary approval, the settlement was felt by class

counsel to represent a fair and equitable result for the case, bearing in mind both the risks and benefits of

potential further litigation. Indeed, the final Settlement is the product of extensive negotiations between

the Parties conducted at arms-length and is free from collusion. The Parties on both sides are represented

by experienced class action attorneys with specialized knowledge of both class action and employment

law. In order to reach the final Settlement, the Parties debated, discussed, and resolved many difficult

legal and factual issues. Moreover, during the process the Parties were both required to make reasonable

compromises in light of the facts, issues, and risks presented in this Action. In particular, in reaching the

Settlement, Class Counsel considered the uncertainty and risks of further litigation, and the difficulties

inherent in such litigation. Class Counsel also considered the burdens of proof necessary to achieve

certification of the case, and then to establish liability against Defendant and to defeat its defenses. All

of these factors indicated that the best interests of the Class Members would be served by a settlement of

this Action in the manner and upon the terms set forth in the Settlement Agreement.


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3


3. The average payout for a California class member is $1,921.21, and the highest estimated

payment is $6,101.17. For the FLSA Collective Action Members, the average estimated payment is

$270.37 and the highest estimated payment is $788.45. For those persons receiving both a California

payment and an FLSA payment, the average estimated payment is $2,498.75, and the highest estimated

payment is $6,889.62. As evidenced by lack of any objections to the settlement, and the extremely low

exclusion request rate (only 6 valid exclusions to date), the class members believe that these payouts are

real, tangible, and apparently appreciated.

I declare under penalty of perjury, pursuant to the laws of the United States and of the State of

California that the forgoing is true and correct and to the best of my personal knowledge. This

declaration is executed on December 29, 2016, at Agoura Hills, California.

s/ Stanley D. Saltzman

Stanley D. Saltzman


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DECLARATION OF CAROLYN HUNT COTTRELL IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR APPROVAL OF

CALIFORNIA CLASS ACTION SETTLEMENT


Stanley D. Saltzman, Esq. (SBN 090058) William A. Baird, Esq. (SBN 192675) MARLIN & SALTZMAN, LLP 29229 Canwood Street, Suite 208 Agoura Hills, California 91301 Telephone: (818) 991-8080 Facsimile: (818) 991-8081 [email protected] [email protected] Carolyn Hunt Cottrell (SBN 166977) Nicole N. Coon (SBN 286283) SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, California 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 [email protected] [email protected] Walter Haines, Esq. (SBN 71075) UNITED EMPLOYEES LAW GROUP, P.C. 5500 Bolsa Ave., Suite 201 Huntington Beach, California 92649 Telephone: (888) 474-7242 Facsimile: (562) 256-1006 Attorneys for Plaintiffs and the Settlement California Class and FLSA Class




Plaintiffs,

v.


Defendant.

)))))))))))))) ) ) ) ) ) )


DECLARATION OF CAROLYN HUNT COTTRELL IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR APPROVAL OF CALIFORNIA CLASS ACTION SETTLEMENT DATE: February 2, 2017

TIME: 1:30 p.m.

CTRM: 5


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1


CALIFORNIA CLASS ACTION SETTLEMENT CASE NO. 3:15-cv-02198-EMC

DECLARATION OF CAROLYN HUNT COTTRELL

I, Carolyn Hunt Cottrell, declare:

1. I have personal knowledge of the facts set forth in this Declaration and, if called upon as a

witness, I could and would testify competently as to these facts.

2. This Declaration is submitted in support of Plaintiffs’ Unopposed Motion for Approval of

California Class Action Settlement.

QUALIFICATIONS, EXPERIENCE, AND EXPERTISE

3. I am an attorney duly licensed to practice law in the State of California (No. 166977). I am a

member in good standing of the State Bar of California. I am admitted to the United States District

Courts for the Northern, Eastern, Central, and Southern Districts of California. I am a member of

the Bar of the United States Supreme Court.

4. I am a partner at Schneider Wallace Cottrell Konecky Wotkyns LLP (“SWCKW”). SWCKW

specializes in class action litigation in state and federal court.

5. SWCKW is regarded as one of the leading private plaintiff’s firms in wage and hour class

actions and employment class actions.

6. SWCKW has acted or is acting as class counsel in numerous cases. A partial list of cases

which have been certified and/or settled as class actions includes: Guilbaud, et al. v. Sprint Nextel

Corp. et al., (Case No. 3:13-cv-04357-VC) (Northern District of California) (final approval of class

and collective action settlement for failure to compensate for all hours worked, including overtime,

under federal and California law, failure to provide meal and rest breaks, failure to reimburse for

necessary business uniforms, failure to pay full wages upon termination to, and failure to provide

accurate itemized wage statements); Holmes, et al v. Xpress Global Systems, Inc., (Case No. 34-

2015-00180822 (Sacramento Superior Court) (final approval of class action settlement for failure to

provide meal and rest breaks and failure to provide accurate itemized wage statements); Jeter-Polk,

et al. v. Casual Male Store, LLC, et al., (Case No. 5:14-CV-00891) (Central District of California)

(final approval of class action settlement for failure to provide meal and rest periods, failure to

compensate for all hours worked, failure to pay overtime wages, unpaid wages and waiting time

penalties, and failure to provide itemized wage statements); Meza, et al. v. S.S. Skikos, Inc., et al.,

(Case No. 15-cv-01889-TEH) (Northern District of California) (final approval of class and


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collective action settlement for failure to compensate for all hours worked, including overtime,

under federal and California law, failure to provide meal and rest breaks, failure to reimburse for

necessary business uniforms, failure to pay full wages upon termination to, and failure to provide

accurate itemized wage statements); Molina, et al. v. Railworks Track Systems, Inc., (Case No.

BCV-15-10135) (Kern County Superior Court) (final approval of class action settlement for failure

to provide meal and rest breaks, unpaid wages, unpaid overtime, off-the-clocker work, failure to

pay full wages upon termination to, and failure to provide accurate itemized wage statements);

Allen, et al. v. County of Monterey, et al., (Case No. 5:13-cv-01659) (Northern District of

California) (settlement between FLSA Plaintiffs and Defendant to provide relief to affected

employees); Barrera v. Radix Cable Holdings, Inc., et al., (Case No. CIV 1100505) (Marin County

Superior Court) (final approval of class action settlement for failure to provide meal and rest breaks

to, off-the-clock work by, failure to provide overtime compensation to, failure to reimburse

business expenditures to, failure to pay full wages upon termination to, and failure to provide

accurate itemized wage statements to retention specialists working for cable companies); Glass

Dimensions, Inc., et al. v. State Street Corp. et al., (Case No. 1:10-cv-10588) (District of

Massachusetts) (final approval of class action settlement for claims of breach of fiduciary duty and

self-dealing in violation of ERISA); Friend, et al. v. The Hertz Corporation, (Case No. 3:07-

052222) (Northern District of California) (settlement of claims that rental car company

misclassified non-exempt employees, failed to pay wages, failed to pay premium pay, and failed to

provide meal periods and rest periods); Hollands v. Lincare, Inc., et al., (Case No. CGC-07-

465052) (San Francisco County Superior Court) (final approval of class action settlement for

overtime pay, off-the-clock work, unreimbursed expenses, and other wage and hour claims on

behalf of a class of center managers); Jantz, et al. v. Colvin, (Case No. 531-2006-00276X) (In the

Equal Employment Opportunity Commission Baltimore Field Office) (final approval of class action

settlement for the denial of promotions based on targeted disabilities); Shemaria v. County of

Marin, (Case No. CV 082718) (Marin County Superior Court) (final approval of class action

settlement on behalf of a class of individuals with mobility disabilities denied access to various

facilities owned, operated, and/or maintained by the County of Marin); Perez, et al. v. First

American Title Ins. Co., (Case No. 2:08-cv-01184) (District of Arizona) (final approval of class


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action settlement in action challenging unfair discrimination by title insurance company); Perez v.

Rue21, Inc., et al., (Case No. CISCV167815) (Santa Cruz County Superior Court) (final approval

of class action settlement for failure to provide meal and rest breaks to, and for off-the-clock work

performed by, a class of retail employees); Sosa, et al. v. Dreyer’s Grand Ice Cream, Inc., et al.,

(Case No. RG 08424366) (Alameda County Superior Court) (final approval of class action

settlement for failure to provide meal and rest breaks to, and for off-the-clock work performed by, a

class of ice cream manufacturing employees); Villalpando v. Exel Direct Inc., et al. (Case Nos.

3:12-cv-04137 and 4:13-cv-03091) (Northern District of California) (certified class action on behalf

of delivery drivers allegedly misclassified as independent contractors); Choul, et al. v. Nebraska

Beef, Ltd. (Case Nos. 8:08-cv-90, 8:08-cv-99) (District of Nebraska) (final approval of class action

settlement for off-the-clock work by, and failure to provide overtime compensation to, production-

line employees of meat-packing plant); Morales v. Farmland Foods, Inc. (Case No. 8:08-cv-504)

(District of Nebraska) (FLSA certification for off-the-clock work by, and failure to provide

overtime compensation to, production-line employees of meat-packing plant); Barlow, et al. v. PRN

Ambulance Inc. (Case No. BC396728) (Los Angeles County Superior Court) (final approval of

class action settlement for failure to provide meal and rest breaks to and for off-the-clock work by

certified emergency medical technicians); Espinosa, et al. v. National Beef, et al. (Case No.

ECU0467) (Imperial Superior Court) (final approval of class action settlement for off-the-clock

work by, and failure to provide overtime compensation to, production-line employees of meat-

packing plant); Wolfe, et al. v. California Check Cashing Stores, LLC, et al. (Case Nos. CGC-08-

479518 and CGC-09-489635) (San Francisco Superior Court) (final approval of class action

settlement for failure to provide meal and rest breaks to, and for off-the-clock work by, employees

at check cashing stores); Carlson v. eHarmony (Case No. BC371958) (Los Angeles County

Superior Court) (final approval of class action settlement on behalf of gays and lesbians who were

denied use of eHarmony); Salcido v. Cargill (Case Nos. 1:07-CV-01347-LJO-GSA,1:08-CV-

00605-LJO-GSA) (Eastern District of California) (final approval of class action settlement for off-

the-clock work by production-line employees of meat-packing plant); Elkin v. Six Flags (Case No.

BC342633) (Los Angeles County Superior Court) (final approval of class action settlement for

missed meal and rest periods on behalf of hourly workers at Six Flags amusement parks); Jimenez


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v. Perot Systems Corp. (Case No. RG07335321) (Alameda County Superior Court) (final approval

of class action settlement for misclassification of hospital clerical workers); Chau v. CVS RX

Services, Inc. (Case No. BC349224) (Los Angeles County Superior Court) (final approval of class

action settlement for failure to pay overtime to CVS pharmacists); Reed v. CALSTAR (Case No.

RG04155105) (Alameda County Superior Court) (certified class action on behalf of flight nurses);

National Federation of the Blind v. Target (Case No. C 06-01802 MHP) (N.D. Cal.) (certified class

action on behalf of all legally blind individuals in the United States who have tried to access

Target.com); Bates v. United Parcel Service, Inc. (2004 WL 2370633) (N.D. Cal.) (certified

national class action on behalf of deaf employees of UPS); Satchell v. FedEx Express, Inc. (Case

No. 03-02659 SI) (N.D. Cal.) (certified regional class action alleging widespread discrimination

within FedEx); Siddiqi v. Regents of the University of California (Case No. C-99-0790 SI) (N.D.

Cal.) (certified class action in favor of deaf plaintiffs alleging disability access violations at the

University of California); Lopez v. San Francisco Unified School District (Case No. C-99-03260

SI) (N.D. Cal.) (certified class action in favor of plaintiffs in class action against school district for

widespread disability access violations); Campos v. San Francisco State University (Case No. C-

97-02326 MCC) (N.D. Cal.) (certified class action in favor of disabled plaintiffs for widespread

disability access violations); Singleton v. Regents of the University of California (Case No. 807233-

1) (Alameda County Superior Court) (class settlement for women alleging gender discrimination at

Lawrence Livermore National Laboratory); McMaster v. BCI Coca-Cola Bottling Co. (Case No.

RG04173735) (Alameda County Superior Court) (final approval of class action settlement for

drive-time required of Coca-Cola account managers); Portugal v. Macy’s West, Inc. (Case No.

BC324247) (Los Angeles County Superior Court) (California statewide wage and hour

“misclassification” class action resulting in a class-wide $3.25 million settlement); Taormina v.

Siebel Systems, Inc. (Case No. RG05219031) (Alameda County Superior Court) (final approval of

class action settlement for misclassification of Siebel’s inside sales employees); Joseph v. The

Limited, Inc. (Case No. CGC-04-437118) (San Francisco County Superior Court) (final approval of

class action settlement for failure to provide meal and rest periods to employees of The Limited

stores); Rios v. Siemens Corp. (Case No. C05-04697 PJH) (N.D. Cal.) (final approval of class

action settlement for failure to pay accrued vacation pay upon end of employment); DeSoto v.


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Sears, Roebuck & Co. (Case No. RG0309669) (Alameda County Superior Court) and Lenahan v.

Sears, Roebuck & Co. (Case No. 3-02-CV-000045 (SRC) (TJB)) (final approval of class action

settlement for failure to pay Sears drivers for all hours worked); among many others.

7. I have been a member of this firm since 1995. Nearly my entire legal career has been

devoted to advocating for the rights of individuals who have been subjected to illegal pay policies,

discrimination, harassment and retaliation and representing employees in wage and hour and

discrimination class actions. I have litigated hundreds of wage and hour, employment

discrimination and civil-rights actions, and I manage many of the firm’s current cases in these

areas. I am a member of the State Bar of California, and have had memberships with Public

Justice, the National Employment Lawyers Association, the California Employment Lawyers

Association and the Consumer Attorneys of California. I served on the Board of Directors for the

San Francisco Trial Lawyers Association and co-chaired its Women’s Caucus. I was named one of

the “Top Women Litigators for 2010” by the Daily Journal. In 2012, I was nominated for Woman

Trial Lawyer of the Year by the Consumer Attorneys of California. I earned my Bachelor’s degree

from the University of California, and I am a graduate of the University of the Pacific, McGeorge

School of Law.

CLASS COUNSEL

8. Plaintiffs’ Counsel in this case is comprised of SWCKW, Marlin & Saltzman, LLP (“MS”),

and United Employees Law Group, P.C. (“United”). The firms are highly-regarded members of the

wage and hour and employment class and collective action bar, with extensive experience in this

highly-specialized type of litigation.

9. Declarations and supporting exhibits outlining Plaintiffs’ Counsel’s extensive work on this

matter, as well as fees and costs, have been submitted in support of Plaintiffs’ Unopposed Motion

for Attorneys’ Fees, Costs, and Enhancement Awards, filed on December 8, 2016 as ECF Dkt. Nos.

86-90, as well as our billing records that were submitted under seal on December 12, 2016 as ECF

Dkt. No. 91. I refer the Court to these additional documents, including supporting declarations, for

a detailed overview of Class Counsel’s work on the matter as well as our fees and costs.


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INTRODUCTION

10. The Parties are resolving numerous wage and hour claims that likely would not have been

prosecuted as individual actions, and in so doing are providing a substantial benefit to the members

of the California Class and the FLSA Class (collectively, the “Classes”). Specifically, the Parties

have resolved the claims of approximately 5,150 of Mistras’s employees for a total settlement

payment of $6,000,000.00. The Settlement represents a favorable result and is fair, reasonable, and

adequate in all respects.

FACTUAL BACKGROUND

11. Mistras provides standard and innovative non-destructive testing, inspection, and

engineering services. Mistras employs Examiners, Technicians, and Inspectors to carry out a wide

variety of inspection, maintenance, and repair services in the field setting. They work out of

Mistras’s local offices (also referred to as “labs”) typically on the worksite of Mistras customers.

Examiners, Technicians, and Inspectors are non-exempt, hourly positions. Travel is extensive, and

time away from home can span several weeks at a time. Often, Examiners, Technicians, and

Inspectors’ schedules are grueling, with no days off.

12. In particular, Plaintiffs allege that Mistras requires employees to work off-the-clock

(including before and after their scheduled shifts and during meal and rest breaks), all without

proper compensation including payment of straight time, overtime compensation, and premium

pay. It is Plaintiffs’ position that employees are compensated only for the time they are scheduled

to work by Mistras – not for their actual hours worked. With respect to Class Members working in

California, Mistras commits additional wage and hour violations under California law. By requiring

employees to work during their meal and rest breaks, Mistras fails to authorize, permit, and/or make

available meal and rest periods to which they are entitled by law. It further fails to pay premium

pay for these missed breaks. Plaintiffs also allege that Mistras also improperly purports to adopt and

implement alternative workweek schedules (“AWS”) to avoid properly compensating California

Class Members under California wage laws. In addition, Plaintiffs allege that Mistras engages in

illegal practices by failing to provide accurate, itemized wage statements and failing to pay all

wages owed at the end of employment.


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13. For additional factual details, see the preliminary approval motion filed on July 19, 2016 as

ECF Dkt. No. 70.

PROCEDURAL HISTORY

14. Plaintiffs allege nine causes of action under the federal Fair Labor Standards Act, 29 U.S.C.

§§ 201, et seq. (“FLSA”), the California Labor Code, applicable Industrial Welfare Commission

(“IWC”) Wage Order, Business and Professions Code §§ 17200, et seq. (“UCL”), and the

California Labor Code Private Attorneys General Act of 2004 (“PAGA”). In their first cause of

action, Plaintiffs allege, on behalf of an FLSA collective (the “FLSA Class”), that Defendant

violated the FLSA by knowingly failing to maintain records of all hours worked, knowingly failing

to compensate employees for all hours worked, including overtime and training hours. Plaintiffs’

remaining eight causes of action arise under California law: (1) failure to compensate for all hours

worked, including but not limited to attending pre-work meetings, completing required training

programs, traveling to and from Mistras’s offices to worksites, and engaging in other off-the-clock

work; (2) failure to pay overtime wages; (3) failure to authorize, permit, and/or make available

meal periods; (4) failure to authorize, permit, and/or make available rest periods; (5) failure to

provide accurate itemized wage statements; (6) failure to timely pay all earned wages at the end of

employment; (7) violation of the UCL for unlawful, unfair, and/or fraudulent business acts or

practices; and (8) penalties pursuant to § 2698, et seq. of the California Private Attorney General

Act (“PAGA”).

15. The Parties engaged in an investigation and discovery. Class Counsel conducted numerous

in-depth interviews of Class Members to validate the merits of the case. Plaintiffs prepared and

served extensive written discovery. The Parties conducted numerous meet and confer sessions

regarding the discovery. These efforts resulted in the production of additional documents and

supplemental interrogatory responses. Specifically, Defendant produced thousands of pages of

documents including: class lists, a list of Mistras offices, numerous handbooks and policies, payroll

and timekeeping data, training records, alternative workweek documentation, and the documents

for the Named Plaintiffs. Numerous depositions also took place. Plaintiffs deposed Defendant

pursuant to FRCP 30(b)(6), including taking the depositions of Julie Marini (Mistras Group Vice

President of Human Resources) and Dennis Bertolotti (Mistras President of Group Services/Interim


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CEO). Plaintiff Krueger was also deposed on March 10, 2016. Class Counsel have also made a

thorough study of the legal principles applicable to the claims asserted against Defendants.

16. Plaintiffs’ Counsel based their damages analysis and settlement negotiations on the formal

informal discovery described above. The approximate net amount being disbursed to Class

Members is $3,892,924.98.

17. The settlement amount is fair, reasonable, and adequate. The Settlement amount takes into

account the substantial risks inherent in any class and collective action wage-and-hour case, the

status of the litigation, and the specific defenses asserted by Defendant. Settlement awards will be

distributed to Settlement Class Members on a proportional basis based on the amount of weeks

each Class Member worked.

18. The Parties mediated this dispute on April 5, 2016 before Mark Rudy, a respected and

experienced wage and hour mediator. The Parties’ engaged in arm’s-length negotiations. After

over 10 hours of extensive negotiations, the mediation concluded without a settlement, but with

clear progress having been made. Thereafter, through Mr. Rudy’s ongoing efforts, the Parties

continued to discuss possible resolution of the Action. After over a month of such discussions, the

Parties eventually agreed to broad settlement terms. The Parties then began to work through the

drafting of a Settlement Agreement, which was finally executed by the Parties shortly before this

motion was filed.

19. On May 4, 2016, Class Counsel submitted a Joint Notice of Settlement, and Stipulation and

[Proposed] Order to Vacate All Pending Deadlines. The Court set a briefing schedule on May 6,

2016. The Court subsequently modified the briefing schedule upon subsequent stipulations.

20. Class Counsel drafted and prepared appropriate moving papers and filed them on July 19,

2016. Thereafter, on August 2, 2016, the Court issued an order, requesting supplemental briefing on

Plaintiffs’ preliminary approval motion. The Court requested that the Parties address ten topics: (1)

attorneys’ fees, including submitted ex parte and under seal their billing records with a detailed

description; (2) expected recovery per Class Member; (3) full verdict value of the case; (4)

distribution of the settlement fund; (5) risks of litigation; (6) FLSA affirmative opt-in; (7) notice to

FLSA Class Members; (8) response to objections from Class Members; (9) CAFA notice; and (10)


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Class notice for California Class. Class Counsel drafted a supplemental brief, revised Class notices

and accompanying documents, and corresponding declarations as well as briefing and

documentation supporting their fee request. These materials were filed with the Court on August 9,

2016. On August 23, 2016, the Court issued an order requesting further supplemental briefing

regarding the PAGA recovery in this action. Plaintiffs drafted and filed a supplemental brief on

August 30, 2016. On October 11, 2016, the Court issued an order granting Plaintiffs’ motion.

21. With respect to settlement administration, Simpluris is responsible for distributing the

Notice, calculating individual settlement payments, calculating all applicable payroll taxes,

withholdings and deductions, preparing and issuing all disbursements to be paid to Class Members,

the Class Representative, Class Counsel, the Labor and Workforce Development Agency

(“LWDA”), any applicable local, state, and federal tax authorities, and handling inquiries and/or

disputes from Class Members.

22. Simpluris is also responsible for the timely preparation and filing of all tax returns, and

making the timely and accurate payment of any and all necessary taxes and withholdings. Simpluris

also established a mailing address and toll-free telephone number to direct inquiries regarding the

Notices and determination of individual settlement payments as well as a website.

23. Following the Court’s preliminary approval order, Simpluris received Class Member data

from Defendant. Based on the records produced by Defendant to the Administrator, the total number

of Class Members is 5,150. Not all California Class Members are FLSA Class Members: 111 are

only California Class Members, 1,213 are both California and FLSA Class Members. 3,826 are only

FLSA Class Members.1

24. The Final Approval Hearing for the Court to approve the Settlement is currently scheduled

for February 2, 2017. With this Motion, Plaintiffs ask the Court to grant final approval of this

Settlement as to the California Class. Following an order by the Court on this Motion, the Parties

1 Note that these are the most recent totals provided by Simpluris.


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and the Settlement Administrator will execute the final steps of the settlement process, including

sending individual checks to all participating Class Members for their Settlement award.

THE SETTLEMENT

25. The Parties have resolved this matter in a Joint Stipulation of Settlement and Release

(“Stipulation of Settlement or “Settlement”) (previously filed as Exhibit 1 to ECF Dkt. No. 70-2).

26. Defendant has agreed to pay a total of $6,000,00.00, the “Maximum Settlement Amount,” to

settle all aspects of this case. The “Net Settlement Proceeds,” the amount that will be available to

pay settlement awards to the Classes, is defined as the Maximum Settlement Amount less the Fee

and Expense Award (Plaintiffs seek a fee award not to exceed 33 1/3% of the Maximum Settlement

Amount, and an expense award for total costs, currently which total $44,575.02), the Service

Payment (up to $7,500.00 for Plaintiff Viceral and $1,000.00 to Plaintiff Krueger), the PAGA

Payment to the LWDA based on the $20,000.00 allocated for the PAGA claims ($15,000.00)2, and

Administration Costs (which are not to exceed $50,000.00, but currently total $39,000.00). At this

time, the approximate Net Settlement Proceeds are estimated to be $3,892,924.98.3

27. The “California Class” is defined to mean “all current and former hourly, non-exempt

Technicians, Inspectors, and Examiners employed by Defendant in California at any time between

April 10, 2011 up through the date of Final Approval.”

28. The “FLSA Class” is defined as “all current and former hourly, non-exempt Technicians,

Inspectors, and Examiners who were employed by Defendant in the United States at any time

between April 10, 2012 through the date of Final Approval.”

29. 65% of the Net Settlement Proceeds will be allocated to the California Class Fund and 35%

will be allocated to the FLSA Class Fund, recognizing that the FLSA action alleged only one cause

of action for off-the-clock overtime. By contrast, even though the California Class was smaller than

the FLSA Class, it not only alleged a failure to pay off-the-clock overtime, but also alleged causes of

2 Plaintiffs provided the LWDA with notice of the Settlement as well as a copy of the Settlement

Agreement. The LWDA has provided no response.

3 Note that this is the most recent total in light of Simpluris’s updated costs for administration.


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action under the California Labor Code for failure to pay minimum wages, failure to provide and

pay for missed meal breaks, failure to provide and pay for missed rest breaks, failure to provide

proper wage statements, waiting time penalties for failing to pay all wages due at the termination of

employment, violation of Business and Professions Code § 17200, et seq., and asserted claims under

PAGA. Moreover, data analysis, as well as interviews with Class Members, indicated that the

amount of damage hours per week to be claimed were higher for the California Class Members as

compared to those who worked outside of California. The Parties further factored in the difficultly

in proving the FLSA claims both from a merits and certification standpoint and the unique defenses

asserted to that cause action by Defendant. With these factors in mind, and based on Class Counsels’

belief that the California Class Members’ damages were potentially twice the value of the FLSA

Class Members, the two-to-one allocation was arrived at as a reasonable reflection of the value of

the claims.

30. California Class Members who do not opt out of the Settlement will be eligible to receive

their share of the Net Settlement Proceeds allocated to the California Class. To recover a share of

the Net Settlement Proceeds allocated to the FLSA Class, a potential California FLSA Class

Member must opt in by timely cashing his or her settlement award.

31. Settlement awards will be distributed to Settlement Class Members on a proportional basis

based on the amount of weeks each Class Member worked. Pursuant to this formula, a California

Class Member will receive approximately $1,248.00 for each year worked (estimated $24.00 per

week multiplied by 52 work weeks per year) for each year worked. Thus, a California Class

Member that was employed the entire class period of 5.5 years stands to recover $6,864.00. An

FLSA Class Member will receive approximately $263.00 for each year worked (estimated $5.06 per

week multiplied by 52 work weeks per year) and if employed for the entire class period of 4.5 years

stands to receive $1,183.00. The average individual settlement payment for California Class

Members is estimated to be $1,921.21, and the highest is estimated to be $6,101.17. The average

individual settlement payment for FLSA Class Members is estimated to be $270.37, and the highest

is estimated to be $788.45. For those Class Members receiving both a California payment and a


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FLSA payment, the average estimated payment is $2,498.75, and the highest estimated payment is

$6,889.62.4

32. For tax purposes, one-third (1/3) of each Individual Settlement Payment shall be treated as

settlement for wage claims, which will be subject to required tax withholdings, and reported on an

IRS W¬2, one-third (1/3) shall be treated as settlement for penalties, and one-third (1/3) shall be

treated as interest, which will be paid without withholding any amount, and reported on a Form

1099.

33. Each Class Member will be notified of the number of weeks Defendants’ records show that

he or she worked and their estimated recovery assuming full participation. Should a Class Member

dispute Defendants’ records, that Class Member may submit evidence to the Settlement

Administrator establishing the dates he or she contends to have worked for Defendants. The

Settlement Administrator shall notify the Parties of any disputes, and shall finally resolve any

disputes. In this process, Defendants’ records will be presumed determinative.

34. The Stipulation of Settlement contains four releases: California Released Claims, FLSA

Released Claims, and the released claims of the Named Plaintiffs. Specifically, Mr. Viceral will

execute a full release of all claims, while Mr. Krueger will retain his right to continue with a separate

individual action ongoing against the Defendant, for claims not included in this class action.5 In all

of the releases, the “Released Parties” are “ Defendant Mistras Group, Inc., its past or present

successors and predecessors in interest, subsidiaries, affiliates, parents, officers, directors,

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

consultants, insurers and reinsurers, and their respective successors and predecessors in interest,

4 Note that these are the most recent totals provided by Simpluris.

5 Mr. Krueger settled his individual claims for violation of California Labor Code § 970, wrongful

discharge, and related claims in the separate case of Krueger v. Mistras Group, Inc., Case No. 1:15-

cv-00997-JLT (ED Cal. Oct. 21, 2016). The parties to that action filed a Notice of Settlement on

September 13, 2016 and a Stipulation of Dismissal on October 13, 2016. Thereafter, the Court

closed the case on October 21, 2016.


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subsidiaries, affiliates, parents and attorneys.” The releases impacting the Classes and Named

Plaintiffs are appropriately tailored to the claims in this case.

35. The Parties have agreed to use Simpluris as the Settlement Administrator. Simpluris has

estimated that its costs will be approximately $47,010.00. These costs are reasonable given the

estimated value of the average individual claims, as they are appropriate to ensure that Class

Members have a full opportunity to learn about the Settlement and to obtain their share of the

Settlement, if they desire to do so.

FINAL APPROVAL OF THE SETTLEMENT

36. In its October 11, 2016 Order, the Court already preliminarily approved the Settlement with

respect to the California Class and finally approved it as to the FLSA Class. Accordingly, the only

step that remains is final approval of the Settlement as to the California Class. Consistent with the

precedent of this Circuit and this Court’s own decisions, the Settlement should be finally approved.

37. The Court should find that the Settlement is fair, reasonable, and adequate, and finally

approve it as to the California Class.

38. Pursuant to the Court’s October 11, 2016 Order granting preliminary approval, Simpluris

sent the Court-approved Notice to the California Class in accordance with the terms of the


39. The Settlement Administrator followed all of the procedures set forth in the Court-approved

notice plan. Reasonable steps have been taken to ensure that all California Class Members receive

the Notice. Ultimately, of the 1,324 notices distributed to California Class Members, only 9 of these

Notice Packets have to date been returned as undeliverable. In addition, no objections6 have been

received to any portion of the Settlement, including the Enhancement Awards for the Representative

Plaintiffs and the Fee and Expense Award to Class Counsel. Accordingly, the notice process satisfies

the “best practicable notice” standard.

6 The objection/exclusion deadline was December 22, 2016.


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40. A review of the Settlement Agreement reveals the fairness, reasonableness, and adequacy of

its terms. The Net Settlement Amount of $3,892,924.98, derived from a Gross Settlement Amount of

$6,000,000.00, will result in fair and just relief to Class Members.

41. The total number of Class Members is 5,150. Not all California Class Members are FLSA

Class Members: 111 are only California Class Members, 1,213 are both California and FLSA Class

Members. 3,826 are only FLSA Class Members.

42. As of the date of this filing, the average individual settlement payment for California Class

Members is estimated to be $1,921.21, and the highest is estimated to be $6,101.17. The average

individual settlement payment for FLSA Class Members is estimated to be $270.37, and the highest

is estimated to be $788.45. For those Class Members receiving both a California payment and a

FLSA payment, the average estimated payment is $2,498.75, and the highest estimated payment is

$6,889.62.

43. These results are well within the reasonable standard when considering the difficulty and

risks presented by pursuing further litigation.

44. First, litigating this action would not only delay recovery, but also would be expensive, time-

consuming and involve substantial risk. If this case were to go to trial as a class and collective

action, Class Counsel estimate that fees and costs would well exceed $2,000,000.00. Litigating the

class and collective action claims would require substantial additional preparation and discovery. It

would require depositions of experts, the presentation of percipient and expert witnesses at trial, as

well as the consideration, preparation, and presentation of voluminous documentary evidence and

the preparation and analysis of expert reports. There is also the delay and duration of further

litigation. The litigation was filed in April 2015. The matter has been pending for nearly one and a

half years. Certification and dispositive motions have yet to be filed. The Court’s previous Case

Management and Pretrial Order for Jury Trial (ECF Dkt. No. 43) scheduled nearly a year between

class certification and trial. In light of the current posture of the case, Class Counsel would still need

to prepare and file a class certification motion. Thus, the litigation would likely remain pending for

nearly another year and a half, and potentially longer taking into consideration unforeseen delays

and scheduling issues.


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45. The risks of maintaining class action status in this case as well as demonstrating Defendant’s

ultimate liability at trial are also significant. Recovery of the damages and penalties would require

complete success and certification of all of Plaintiffs’ claims, a questionable feat in light of recent

developments in wage and hour and class and collective action law as well as the legal and factual

grounds that Mistras has asserted to defend this action. Specifically, Mistras has asserted numerous

complete liability defenses against Plaintiffs’ claims, many of which were supported by the

declarations gathered by Defendant. See generally Defendant’s Answer to Consolidated First

Amended Complaint (ECF Dkt. No. 42). For example, Mistras raised several defenses to Plaintiffs’

off-the-clock claims, including that (1) Class Members did not perform work off-the-clock; (2) any

off-the-clock work was de minimis; (3) Mistras properly paid Class Members for compensable

training time; (4) Mistras properly provided Class Members with legally compliant meal and rest

breaks ; (5) Mistras paid Class Members for all hours worked, including overtime; and (5) Mistras

properly implemented alternative workweek schedules in California, avoiding any overtime liability.

Mistras also intended to raise several defenses against class certification, including (1) that

individualized determinations regarding the type and amount of off-the-clock work, if any,

completed by Class Members would overwhelm common issues; (2) that individualized

determinations regarding the amount of wages owing, if any, would overwhelm common issues; and

(3) whether Class Members actually took meal and rest breaks would overwhelm any common

issues. If Mistras succeeded on any of these or other defenses to class certification, Mistras would

likely further argue that its success would necessarily impact Plaintiffs’ derivative claims. In the end,

Plaintiffs would then be left with only their individual claims and the Class and Collective would

potentially recover nothing.

46. Thus, the risks of litigation are significant. This is particularly true since Defendant has

represented to Class Counsel that the declarations it has collected support its defenses. In particular,

defense counsel has explained that the California Class Members and FLSA Class Members

generally and overwhelmingly stated in individualized and non-cookie-cutter declarations that they:

recorded all hours worked; were paid their standard and/or overtime rates for all hours recorded as

worked; never worked unrecorded hours; were never instructed to work “off-the-clock”; recorded all

mandatory online training; were paid for all such training; were paid overtime for all overtime


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recorded; that to the extent they attended voluntary trainings, they did so outside of their regularly

scheduled work hours, they did not perform any other work duties during such training, that

voluntary training involved topics related to new skills for a job other than their current job; and that

they attended such trainings of their own accord and not at the behest of any supervisor; were not

required to commute to work in any specific manner or vehicle; were allowed but not required to

carpool; and did not perform work before or during commute to/from worksites. In addition,

California Class Members also stated that they: were aware of Mistras’s meal and rest break policy;

were able to take meal periods according to the policy; were never prevented from taking breaks;

were able to take breaks throughout a workday as desired; never reported missing a meal period or

rest break; and regularly and personally reviewed their wage statements and found them correct.

47. Defendant further argues that an arbitration agreement distributed to employees in California

removes from the lawsuit approximately one half of the California Class and the corresponding

members of the FLSA Class, irrespective of other defenses related to certification or liability. This

further demonstrates the reasonableness of the total settlement value and the risks of further

litigation.

48. In an effort to further ensure fairness for the employees, the Parties have agreed to allocate

the settlement proceeds amongst Class Members to track each of the substantive violations and some

of the penalty claims, including the limitations period for each claims. The allocation was made

based on Class Counsel’s assessment of the risk of continued litigation and risk on certification and

merits. The Parties further agreed on distribution formulas specifically tailored to each claim, and

each claims limitations period, to further ensure that employees are compensated accordingly and in

the most equitable manner. Specifically, 65% of the NSA will be allocated to the California Class

Fund and 35% will be allocated to the FLSA Class Fund.

49. The Parties engaged in an extensive informal exchange of information to enable both sides to

assess the claims and potential defenses in this action. Through this informal cooperation, the

Parties were able to accurately assess the legal and factual issues that would arise if the case

proceeds to trial. In addition, in reaching this settlement, Class Counsel relied on their substantial

litigation experience in similar wage and hour class and collective actions. Class Counsel’s liability


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and damages evaluation was premised on a careful and extensive analysis of the effects of

Defendants’ compensation policies and practices on Class Members’ pay. Ultimately, in mediation

before Mr. Rudy, an experienced mediator, the Parties used this information to fairly resolve the

litigation.

50. Plaintiffs contend the common questions raised in this action predominate over any

individualized questions concerning the Class Members. Plaintiffs believe that the California Class

and FLSA Class are entirely cohesive because resolution of Plaintiffs’ claims all hinge on the

uniform policies and practices of Defendant, rather than any treatment the Class Members

experienced on an individual level. As a result, Plaintiffs contend that the resolution of these alleged

class and collective claims will be resolved through the use of common forms of proof, such as

Defendants’ uniform policies, and will not require inquiries specific to individual Class Members.

While Class Counsel is confident that Plaintiffs would succeed on liability, continued litigation

would be costly, time-consuming, and not certain in outcome.

51. Defendant has legal and factual grounds available to defend this action. In fact, Defendant

has continually taken the position that this case is not suitable for class treatment and that it fully

complied with its obligations regarding payment of wages as well as the provision of meal and rest

breaks, among the other wage and hour issues alleged in this action.

52. Defendants asserted numerous defenses against Plaintiff’s claims, as addressed above.

53. Class Counsel considered the substantial risks posed by these arguments in negotiating the

Settlement. Moreover, Class Counsel considered the risk that class certification would not be

granted and the risk that Plaintiff’s claims would be defeated on the merits. For all of these reasons,

the Settlement is fair and reasonable.

54. The monetary value of the Settlement represents a fair compromise given the litigation risks

and uncertainties posed by continued litigation. Recovery of the damages and penalties previously

referenced would also require complete success and certification of all of Plaintiffs’ claims, a

questionable feat in light of recent developments in wage and hour and class and collective action

law as well as the legal and factual grounds that Defendant has asserted to defend this action. In


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contrast, resolving this case by means of an early settlement will yield a prompt, certain, and very

substantial recovery for the Class Members. Such a result will benefit the Parties and the court

system.

55. Here, the Settlement was a product of non-collusive, arm’s length negotiations. The Parties

participated in a full-day mediation as well as subsequent settlement negotiation before Mr. Rudy,

who is a skilled mediator with many years of experience mediating employment matters, including

many wage and hour disputes. This Settlement is also supported by Plaintiffs’ Counsel, who have

extensive experience litigating these types of class and collective wage and hour claims and have

been qualified as counsel in numerous class actions.

56. Class Counsel are experienced and respected class action litigators. Based on Class

Counsel’s knowledge and expertise in this area of law, Class Counsel believes this Settlement will

provide a substantial benefit to the Class Members.

57. To date, no Class Member has submitted a written objection to the Settlement despite being

informed of the Settlement. The lack of any written objections underscores the reasonableness of the

Settlement. In addition, the Class Representatives support the terms of the Settlement. This shows

widespread support for the Settlement among Class Members, and gives rise to a presumption of

fairness.

PLAINTIFFS’ ENHANCEMENT AWARDS

58. Plaintiffs request Enhancement Awards in the amount of $7,500.00 to Named Plaintiff Edgar

Viceral and $1,000.00 to Named Plaintiff David Krueger for the critical roles they played in this

case and the time, effort, and risks undertaken in helping secure the result obtained on behalf of the

Classes. In agreeing to serve as the representatives of the Classes in this case, Plaintiffs formally

agreed to accept the responsibilities of representing the interests of all members of the California

Class and the FLSA Class. Defendant does not oppose payment of $7,500.00 to Named Plaintiff

Viceral and $1,000.00 to Named Plaintiff Krueger as a reasonable Enhancement Awards. Moreover,

the Enhancement Awards are fair when compared to the payments approved in similar cases.


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59. Declarations and supporting exhibits outlining Plaintiffs’ extensive work on this matter have

been submitted in support Plaintiff’s Unopposed Motion for Attorneys’ Fees, Costs, and

Enhancement Awards filed on December 8, 2016 (ECF Dkt. Nos. 86-90). I refer the Court to these

additional declarations for a detailed overview of Plaintiffs’ work on the matter.

REASONABLE ATTOREYS’ FEES AND COSTS

60. In Plaintiffs’ fee motion, Class Counsel request up to one-third (33 1/3%) of the Gross

Settlement Amount, for a total of $2,000,000.00, plus reimbursement of actual costs in the amount

of $44,575.02. In this case, given the results achieved, the effort expended litigating the case, and the

difficulties attendant to litigating this case, the fees and cost award is warranted. There was no

guarantee of compensation or reimbursement. Rather, counsel undertook all the risks of this

litigation on a completely contingent fee basis. These risks were front and center. Defendant’s

vigorous and skillful defense further confronted Class Counsel with the prospect of recovering

nothing or close to nothing for their commitment to and investment in the case. Nevertheless,

Plaintiffs and Class Counsel committed themselves to developing and pressing Plaintiffs’ legal

claims to enforce the employees’ rights and maximize the Class recovery. The challenges that Class

Counsel had to confront and the risks they had to fully absorb on behalf of the Class Members here

are precisely the reasons for multipliers in contingency fee cases.

61. Declarations and supporting exhibits outlining Plaintiffs’ Counsel’s extensive work on this

matter as well as fees and costs have been submitted in support of Plaintiff’s Unopposed Motion for

Attorneys’ Fees, Costs, and Enhancement Awards, filed on December 8, 2016 as ECF Dkt. Nos.

86-90, as well as our billing records that were submitted under seal on December 12, 2016 as ECF

Dkt. No. 91. I refer the Court to these additional documents, including supporting declarations, for

a detailed overview of Class Counsel’s work on the matter as well as our fees and costs.

//

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//

//


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I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct and is based upon my own personal knowledge. Executed in

Emeryville, California on December 29, 2016.

/s/ Carolyn Hunt Cottrell _____ CAROLYN HUNT COTTRELL


Mistras Viceral - Simpluris

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