Admitted Pro Hac Vice - Simplurisselbevpeak.simpluris.com/Documents/Memorandum in Support of Motion... · 26 27 28 firmwide:136370139.1 068943.1006 memorandum in support of motion

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Firmwide:136370139.1 068943.1006 MEMORANDUM IN SUPPORT OF MOTION

FOR PRELIMINARY APPROVAL (CASE NO.: 3:14-CV-3238-MMC)

ERIC B. KINGSLEY, Bar No. 185123 [email protected] LIANE KATZENSTEIN LY, Bar No. 259230 [email protected] KINGSLEY & KINGSLEY, APC 16133 Ventura Boulevard, Suite 1200 Encino, CA 91436 Telephone: (818) 990-8300 Facsimile: (818) 990-2903 JOSHUA M. DAVID (Admitted Pro Hac Vice) [email protected] NICHOLAS A. NUNES (Admitted Pro Hac Vice) [email protected] DAVID, KAMP & FRANK, L.L.C. 739 Thimble Shoals Boulevard, Suite 105 Newport News, VA 23606 Telephone: (757) 595-4500 Facsimile: (757) 595-6723

Attorneys for Plaintiffs NICHOLAS SELBE, DANIEL GHYCZY, MAKAELA O’CONNELL, and ANNIYA LOUIS, on behalf of themselves and all others similarly situated

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

NICHOLAS SELBE, DANIEL GHYCZY, MAKAELA O'CONNELL, and ANNIYA LOUIS on behalf of themselves and others similarly situated,

Plaintiffs,

v.

PEAK CAMPUS MANAGEMENT, LLC,

Defendant.

Case No. 3:14-cv-3238-MMC

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS AND COLLECTIVE ACTION SETTLEMENT

Date: December 18, 2015 Time: 9:00 a.m. Judge: Hon. Maxine M. Chesney Location: Courtroom 7 Complaint filed: July 17, 2014 Trial date: Not set

Case 3:14-cv-03238-MMC Document 103 Filed 11/20/15 Page 1 of 34

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TABLE OF CONTENTS

I. INTRODUCTION ............................................................................................................... 1 II. FACTUAL AND PROCEDURAL BACKGROUND ......................................................... 2 A. Complaint and Amended Complaint ........................................................................ 2 B. Conditional Certification of FLSA Collective Action ............................................. 3 C. Discovery ................................................................................................................. 3 D. Mediation and Settlement ........................................................................................ 4

E. The Plaintiffs' Claims………………………………………………………………4 1. The FLSA Claim………………………………………..…………..………4

2. The California Claims……………………………………………….……..6 III. SUMMARY OF SETTLEMENT TERMS………………………………………………...7 IV. CLASS ACTION SETTLEMENT APPROVAL PROCEDURE .......................................... 12 V. PRELIMINARY APPROVAL OF THIS SETTLEMENT IS APPROPRIATE ..................... 14

A. The Proposed Settlement Was Made after Significant Discovery and Was the

Product of Serious, Informed, Non-Collusive Negotiations……………………...14

B. The Proposed Settlement Has No Obvious Deficiencies. ...................................... 16 C. The Proposed Settlement Does Not Improperly Grant Preferential Treatment to the

Named Plaintiffs or Segments of the Class. ........................................................... 16 1. Enhancement Awards ........................................................................................ 16 2. Multiplier for California Class Members ......................................................... 18 D. The Proposed Settlement Falls within the Range of Possible Approval, and the

Substantial Amount Offered in Settlement and the Risk, Expense and Complexity of Further Litigation Weigh in Favor of Preliminary Approval.. .......................... 18

E. Class Action Fairness Act (CAFA)……………………………………………….20


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VI. CONDITIONAL CERTIFICATION OF THE CLASS IS APPROPRIATE ......................... 20 A. Numerosity ............................................................................................................. 21 B. Common Issues of Law and Fact ........................................................................... 21 C. Typicality ............................................................................................................... 22 D. Adequacy of Representation ........................................................................................ 22 E. Conditional Certification Pursuant to Federal Rule of Civil Procedure 23(B)(3) Is

Appropriate As Common Questions Predominate ................................................. 23 VII. THE PROPOSED NOTICES ARE APPROPRIATE AND SATISFY DUE PROCESS . 24 VIII. A FINAL APPROVAL HEARING SHOULD BE SCHEDULED ................................... 26 IX. CONCLUSION .................................................................................................................. 26


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TABLE OF AUTHORITIES

CASES

Alberto v. GMRI,Inc.,

252 F.R.D. 652 (E.D. Cal. 2008)………………………………………………………....13 Amchem Products, Inc. v. Windsor,

521 U.S. 591 (1997)………………………………………………………………………24 Arnold v. United Artists Theatre Circuit, Inc.

158 F.R.D. 439 (N.D. Cal. 1994)…………………………………………………………21 Bailey v. Pilots’ Asso. for Bay & River Delaware, 406 F. Supp. 1302 (E.D. Pa. 1976)………..……………………………………….............4 Class Plaintiffs v. City of Seattle,

955 F.2d 1268 (9th Cir. 1992)…………………..………………………………………...14 Classen v. Weller,

145 Cal. App. 3d 27 (1983)……………………………………………………………….22 Consolidated Rail Corp. v. Town of Hyde Park,

47 F.3d 473 (2d Cir. 1995)………….…………………………………………………….21 General Tel. Co. of Southwest v. Falton,

457 U.S. 147 (1982)………………………………………………………………………22 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998)………..………………………………...................14, 21-24 Ingram v. Coca-Cola Co.,

200 F.R.D. 685 (N.D. Ga. 2001)…………………………………………………………16 Jordan v. Los Angeles County,

699 F.2d 1311 (9th Cir. 1982)………………….…………………………………………21 Lerwill v. Inflight Motion Pictures, Inc.,

582 F. 2d 507 (9th Cir. 1978)…………..………………………………………………...21


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Linney v. Cellular Alaska P’ship,

151 F.3d 1234, 1239 (9th Cir. 1998)……………………………..……………………....14 Lynn’s Food Stores, Inc. v. United States

679 F2d 1350 (11th Cir. 1982)………………………………...………………………….13 Masters v. Maryland Management Co., 493 F.2d 1329 (4th Cir. 1974)…………….…………………………………………….…4 Matheson v. T-Bone Rest. LLC,

2011 U.S. Dist. LEXIS 143773 (S.D.N.Y. Dec. 13, 2011)……………………..………..18 McGhee v. Bank of Am.,

60 Cal. App. 3d 442 (1976)……………….……………………………….……………..22 Mentor v. Imperial Parking Sys., Inc.,

2010 U.S. Dist. LEXIS 132831 (S.D.N.Y. Dec. 15, 2010)………………..……………..18 Molski v. Gleich,

318 F.3d 937 (9th Cir. 2003)…………...…………………………………..…………13-14 Officers for Justice v. Civil Service Com’n of City and County of San Francisco

688 F.2d 615 (9th Cir. 1982)……...…………………………………………..………14, 19 Otey v. Crowdflower, Inc.

2015 U.S. Dist. LEXIS 86712 (N.D. Cal. July 2, 2015)……………...…………………..13 Radcliffe v. Experian Info. Solutions,

715 F.3d 1157 (9th Cir. 2013)……………………..………………….………………….18 Salazar-Martinez v. Fowler Bros.

781 F. Supp. 2d 183 (WD.N.Y. 2011)………........………………………………………..5 Soler v. G. & U., Inc. 833 F2d 1104 (2nd Cir. 1987), Cert. denied, 488 U.S. 832 (1988)…………………..……5 Southern Ohio Correctional Facility,

175 F.R.D. 270 (S.D. Ohio 1997)……………………………………….………………..16


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Tableware Antitrust Litig., 484 F.Supp. 2d 1078 (N.D. Cal. 2007)………..………………………….………13, 18-19 Van Bronkhorst v. Safeco Corp.,

529F.2d 943 (9th Cir. 1976)………..………………………………………….…………14

Van Vranken v. Atlantic Richfield Co.,

901 F. Supp. 294 (N.D. Cal. 1995)……………………………………………………….17

Villegas v. J.P. Morgan Chase & Co.,

2012 WL 5878390 (N.D. Cal. November 21, 2012)……………………………….……..13

West v. Circle K. Stores, Inc.

2006 WL 1652598 (E.D. Cal. June 13, 2006)………..…………………………….……..13

Weyner v. Syntex Corp.,

117 F.R.D. 641 (N.D. Cal. 1987)…………………………………………………………22


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STATUTES

29 U.S.C. § 203(m)………………………………………………………………………………...4

29 C.F.R. § 531.3(d)(1)…………………………………………………………………………….5

29 U.S.C. § 216(b)………………………………………………………………………...……...13

California Business and Professional Code § 17000, et seq.…..………….……………….……....7

California Business and Professional Code § 17200..…………………………………….……….2

California Labor Code § 201............……………………………………………………..…2, 7, 22

California Labor Code § 202...………….………………………………………………..…2, 7, 22

California Labor Code § 203...……………….…………………………………………..…2, 7, 22

California Labor Code § 226…...………………………………………………………..….2, 7, 22

California Labor Code § 1182.12……………………………………………………………….2, 7

California Labor Code § 1182.13……………………………………………………………….2, 7

California Labor Code § 1194………………………………………………………….……….2, 7

California Labor Code § 1194.2……………………………………………………………….......2

California Labor Code § 1194.5……………………………………………………..…………….2

California Labor Code § 1197.1…...…………………………………………………….…….7, 22

California Labor Code § 2698...………………………………………………….……………..2, 7

California Wage Order No. 5……………………………………………………………...2, 6-7, 22

RULES

Federal Rule of Civil Procedure 23……………………………...………………...12, 20-21, 23-26

OTHER AUTHORITIES

Manual for Complex Litigation § 21.632 (4th ed. 2004)……………………..………...……..12, 26


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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Plaintiffs Nicholas Selbe, Daniel Ghyczy, Makaela O'Connell, and Anniya Louis

(collectively “Plaintiffs” or “Named Plaintiffs”) submit this memorandum in support of their

Unopposed Motion for Preliminary Approval of Class Action Settlement. Plaintiffs and

Defendant, Peak Campus Management, LLC (“Defendant”) negotiated the proposed conditional

settlement at arms’ length. It is fair and reasonable and will dispose of the class action in its

entirety.

Subject to this Court’s approval, Plaintiffs, on behalf of themselves and the other proposed

Settlement Class Members, intend to settle their wage and hour claims against Defendant as

described in the Settlement Agreement. As defined in the Settlement Agreement, the proposed

Settlement Amount (the “Settlement Amount”) is Eight Hundred Thousand & 00/100 Dollars

($800,000.00), which includes: enhancement awards to Named Plaintiffs as the Class

Representatives; Settlement Class Members’ share of payroll taxes that Defendant is required to

withhold as a matter of law; Class Counsel’s attorneys’ fees and costs; and the payment to the

California Labor and Workforce Development Agency (“LWDA”) for its share of the settlement

of penalties.

The proposed settlement satisfies all of the criteria for preliminary settlement approval

and falls well within the range of permissible approval. Accordingly, Plaintiffs request that the

Court conditionally certify the proposed Settlement Class for settlement purposes only, grant

preliminary approval of the proposed Settlement, order the Claims Administrator to disseminate

the proposed Notices with the objection procedures described herein and, as applicable, opt-out

procedures and the proposed Claim Form and schedule a final approval hearing.


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II. FACTUAL AND PROCEDURAL BACKGROUND

A. Complaint and Amended Complaint

Named Plaintiffs filed the original Complaint in this matter on July 17, 2014. ECF No. 1.

The Complaint, as amended, alleged violations of the Fair Labor Standards Act (“FLSA”) as well

as California state wage and hour law. Id. More specifically, Plaintiffs asserted claims for:

(1) FLSA Minimum Wage; (2) California Minimum Wage and Wage Credits (Wage Order No. 5

and Labor Code §§ 1182.12-1182.13, 1194, 1194.2 & 1194.5); (3) California Waiting Time

Penalties (Labor Code §§ 201-203); (4) California Record Keeping (Wage Order No. 5 and Labor

Code § 226); and (5) California Unfair Competition Law (Business and Professions Code

§ 17200) (“UCL”). Id. On February 10, 2015, pursuant to a joint stipulation and Order of this

Court, Named Plaintiffs filed a First Amended Complaint to assert an additional count under

Labor Code § 2698, et seq., known as the California Private Attorney General Act of 2004

(“PAGA”), and make minor corrections to the original Complaint. ECF No. 47; see also

Exhibit “A,” Declaration of Joshua M. David (David Decl.) at ¶ 4.

Defendant manages apartments that are intended for and marketed as housing for college

and university students. The Plaintiffs were employed at these properties managed by the

Defendant in a position called an “All-Star.” All-Stars performed leasing and clerical work in the

leasing office and, more importantly, filled a role similar to that of a “resident advisor” at a

college or university. In this role, All-Stars were expected to establish a presence in their

communities, build and maintain relationships with current residents, market the property to

future residents, advise residents and answer their questions, plan and execute parties, events, and

competitions for residents, and perform other duties in furtherance of Defendant’s business

interests. Most All-Stars were required to live onsite in a unit managed by Defendant. Without

onsite residency, an All-Star would be unable to perform his or her duties that relate to the

“resident advisor” role. For a specified number of hours worked, as determined by the rent value,


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All-Stars were compensated through lodging under a “Work for Rent” arrangement. Defendant

asserts that its practice was that any hours worked beyond the Work for Rent arrangement were to

be compensated separately with biweekly checks. The Complaint and Amended Complaint

alleged that pursuant to the FLSA, Work for Rent lodging cannot be credited towards the

payment of minimum wages at all and that under California wage and hour law, if the lodging

may be credited at all, the permissible maximum is substantially less than the credit taken by the

Defendant. Defendant denied that its employment or pay practices violated either the FLSA or

California state wage and hour law and assert that the Work for Rent arrangement is a permissible

practice.

B. Conditional Certification of FLSA Collective Action

Pursuant to a joint motion of the parties, the Court, on January 21, 2015, conditionally

certified this action as an FLSA collective action (the “Consent Order”). ECF Nos. 32 and 34.

The Consent Order approved the notice plan agreed upon by the parties. Through the notice plan

and opt-in process, 165 people filed a Consent to Join Collective Action form to join the FLSA

portion of the lawsuit as opt-in plaintiffs. David Decl. ¶ 6. An additional number of people are

putative plaintiffs pursuant to the California state law portion of the lawsuit. Id.

C. Discovery

On October 28, 2014, the Named Plaintiffs served extensive written discovery on the

Defendant. David Decl. ¶ 7. Through a lengthy meet and confer process, Defendant agreed to

provide significant informal discovery to the Plaintiffs that would enable Plaintiffs to evaluate an

appropriate settlement of this case. Id. Over several months, Defendant provided answers to

Plaintiffs’ pertinent interrogatories informally and provided payroll, time record, and tenant-

related documents and information for the Named Plaintiffs and, with the exception of a few

putative plaintiffs to whose participation Defendant objected, class members who opted into the

FLSA collective action and the collective action putative Plaintiffs. Id. This information


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included, as applicable and available, pay stubs, payroll summaries, time sheets, Form W-2’s,

lease addendums and similar documents describing the “work-for-rent” arrangement, information

on lodging-related costs paid by class members, and other information such as various charts and

data analyses related to the liability and damages aspects of this case. Id. Over the course of this

informal discovery, process nearly 5,500 pages of documents were produced by Defendant and

carefully examined by Class Counsel. Id.

D. Mediation and Settlement

On July 30, 2015, the parties attended a full day private mediation session in Los Angeles,

California with experienced wage and hour mediator Michael E. Dickstein, Esq. David Decl.

¶ 11. In preparation for the mediation and accordance with Mr. Dickstein’s suggested procedure,

the parties worked, in advance of the mediation, on an estimate of potential damages. Id. At a

mediation that lasted in excess of fifteen hours, the parties agreed to a settlement of this case and

executed a “Memorandum of Understanding” outlining the vigorously negotiated terms of the

settlement. Id. The parties subsequently agreed to a more formal Settlement Agreement setting

forth the terms of their agreed settlement. Id. The Settlement Agreement requires that the parties

receive Court approval of their agreed settlement. Id.

E. The Plaintiffs’ Claims

1. The FLSA Claim

The FLSA defines wages as follows: “Wages paid to any employee includes the

reasonable cost, as determined by the Administrator, to the employer of furnishing such employee

with board, lodging, or other facilities, if such board, lodging or other facilities are customarily

furnished by such employer to his employees.” 29 U.S.C. § 203(m). However, “[t]he [FLSA]

regulations point out that facilities furnished primarily for the benefit or convenience of the

employer should not be included in computing wages . . .” Masters v. Maryland Management

Co., 493 F.2d 1329, 1334 (4th Cir. 1974). See also Bailey v. Pilots’ Asso. for Bay & River


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Delaware, 406 F. Supp. 1302, 1309 (E.D. Pa. 1976).

When determining whether the facility was furnished for the primary benefit or

convenience of the employer, courts have generally utilized a “balancing of the benefits test” that

is inferred under 29 C.F.R. § 531.3(d)(1). See, e.g., Soler v. G. & U., Inc., 833 F.2d 1104

(2nd Cir. 1987), cert. denied, 488 U.S. 832 (1988) and Salazar-Martinez v. Fowler Bros., 781 F.

Supp. 2d 183 (W.D.N.Y. 2011). “The balancing of benefits test in the regulation weighs the

relative benefit to the employer and the employee of any given item, using a case-by-case,

‘common sense and logical’ approach.” Salazar-Martinez, 781 F. Supp. 2d at 191, citing Soler,

833 F. 2d at 1109.

In this action, Plaintiffs asserted that the lodging was provided for Defendant’s primary

benefit and convenience. David Decl. ¶ 9. All-Stars were required to live on site, and the

All-Star position was regularly described as a “work-for-rent position.” Id. By living onsite, the

All-Stars were able to fulfill their “resident advisor” job duties, which included being available at

all times to respond to incidents and emergencies and being a role model in the community. Id.

In that sense, the requirement of residency and the provision of lodging was a necessary tool of

the job. Id. Because onsite residency was an All-Star job requirement, integral to the position,

and served the employer’s needs, Plaintiffs’ assertion is that Defendant was not allowed to take a

credit for the costs of the housing towards the applicable minimum and/or overtime wages due to

All-Stars. Id. As such, Plaintiffs asserted that Defendant: (1) failed to pay All-Stars the

applicable minimum wage; (2) failed to pay All-Stars the applicable overtime wage; (3) failed to

reimburse All-Stars for costs related to the residency requirement borne by the All-Stars that

caused wages to fall below the applicable minimum and/or overtime wage. Id. Plaintiffs also

asserted that off-the-clock work was routinely performed at Defendant’s direction by most All-

Stars, but went unrecorded and uncompensated. Id.

As a preliminary matter, Defendant asserted that class or collective treatment of All Stars


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is improper on account of highly fact specific individualized questions that defeat commonality

and manageability of this action as a class. David Decl. at ¶ 10. Additionally, Defendant asserted

that Plaintiffs will not be able to obtain class certification because damages cannot be proven with

common evidence and any kind of proposed solution would violate Defendant’s due process

rights. Id. As for the merits of the claims, Defendant asserted that the lodging provided was

furnished primarily for the benefit or convenience of the All-Stars such that Defendant was

entitled to a credit against wages for the costs of the lodging furnished. Id. Defendant asserted

that most All-Stars sought a position with Defendant after choosing to move into one of the units

as their preferred student lodging and sought employment because it provided an easy alternative

to rent with an easy job with flexible hours and duties that caused minimal interference with their

school schedules. Id. Defendant further denied that off-the-clock work ever occurred or was

required and, in any event, asserted that the claim was not suitable for collective action or class

treatment. Id.

2. The California Claims

Cal. Wage Order No. 5 specifically addresses the maximum credit that can be taken for

lodging provided to employees. If there is a voluntary written agreement between the employer

and the employee, which was in dispute in this case, Cal. Wage Order No. 5, allows a limited

credit for the provision of lodging. In the absence of a voluntary written agreement, no credit

may be taken. Effective from January 1, 2008 through June 30, 2014, the maximum credit for

lodging was $37.63 per week for a room occupied alone and $31.06 per week for a room that is

shared. Beginning on July 1, 2014 and continuing through December 31, 2015, the maximum

permissible credits increase to $42.33 and $34.94, respectively, and, beginning on January 1,

2016, to $47.03 and $38.82, respectively. Under all of these versions of Cal. Wage Order No. 5,

given that All-Stars were generally required to “work for rent” between fifteen and twenty-two

hours per week, the maximum credit allowed for lodging is vastly below the applicable California


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minimum wage.

Plaintiffs asserted that Defendant violated Cal. Wage Order No. 5, and thus violated or

were subject to action under Labor Code Sections 1182.12, 1182.13, and 1194, when Defendant

attempted to take a credit in excess of the amounts allowed by Cal. Wage Order No. 5, resulting

in the payment of regular wages and overtime wages below that required by California law. ECF

Nos. 1 and 47; David Decl. at ¶ 8(c). Defendant asserted that it was entitled to a credit under Cal

Wage Order No. 5 and that those credits, in addition with other credits for cash payments made,

resulted in little or no minimum wage and overtime violations. David Decl. at ¶ 8(c).

Incident to the California minimum wage and overtime violations described above,

Plaintiffs additionally asserted violations of and/or sought penalties and other remedies under

Cal. Labor Code §§ 201-203 for failure to timely pay class members upon conclusion of their

employment, Cal. Wage Order No. 5 and Cal. Labor Code § 226 for failing to keep and provide

to class members accurate wage statements, Cal. Bus. Prof. Code § 17000, et seq., and Cal. Labor

Code §§ 2698, et seq., as provided under Cal. Labor Code § 1197.1, through PAGA. ECF Nos. 1

and 47; David Decl. at ¶ 8(d). Defendant denied liability under these provisions and, in any

event, asserted that excessive penalties would violate Defendant’s due process rights and

liquidated damages were improper because Defendant acted in good faith. ECF Nos. 17 and 57;

David Decl. at ¶ 8(d).

III. SUMMARY OF SETTLEMENT TERMS

Attached to the Declaration of Joshua M. David as Exhibit “2” is a true and correct copy

of the parties’ fully executed Settlement Agreement. A summary of the settlement terms are

listed below:

• Plaintiffs and Defendant stipulate to certification of a class for settlement purposes only of

“All persons who have submitted a ‘Consent to Join Collective Action’ in the instant

Lawsuit prior to June 1, 2015 (‘Opt-In Class Members’) and all individuals employed in


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the State of California between January 1, 2011 and August 1, 2014 who were employed

in any of the following ‘Covered Positions’: All Star; Community Advisor; Community

Assistant; Leasing All-Star; Work for Rent Leasing All-Star; or any combination thereof

(‘California Class Members’) (collectively, ‘Class Members’).” This class is consistent

with the collective action class previously conditionally certified by the Court for the

FLSA portion of this lawsuit. Added to it are the California Class Members with respect

to the California class action portion of this lawsuit who have not opted into the FLSA

portion of this lawsuit (“California Non-FLSA Class Members”). That portion of the

class is consistent with the class for the California action proposed in the Complaint and

the Amended Complaint.

• The settlement contemplates a total class size of approximately 204 class members

(including the Named Plaintiffs).

• Defendant will pay Eight Hundred Thousand & 00/100 Dollars ($800,000.00)

(the “Settlement Amount”) to resolve the claims of the Class Members. The settlement

amount will include all payments to be made to Class Members, enhancement awards to

Named Plaintiffs as the Class Representatives; employees’ share of payroll taxes that

Defendant is required to withhold as a matter of law, Class Counsel’s attorneys’ fees and

costs; and the payment to LWDA for its share of the settlement of penalties.

• This settlement is an “all-in” common fund settlement with no reversion to Defendant of

any unclaimed funds.

• Defendant denies any liability or wrongdoing of any kind associated with the claims

alleged in this case.

• The parties agree to the designation of Joshua M. David of David, Kamp & Frank, L.L.C.

and Eric B. Kingsley of Kingsley & Kingsley, APC as counsel for the Settlement Class

Members for all purposes in this case (“Class Counsel”).


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• Plaintiffs Nicholas Selbe, Daniel Ghyczy, Makaela O’Connell, and Anniya Louis are the

“Class Representatives.”

• The parties agree that Simpluris will be the Claims Administrator. Defendant will incur

any administrative cost associated with administration. As the Defendant will bear the

cost of the Claims Administrator, the fees of the Claims Administrator will not affect the

funds available to the Settlement Class.

• The “Settlement Period” will include the time period from January 1, 2011 to

August 1, 2014.

• Class Representatives will collectively request an enhancement award of up to

$24,000.00, to be allocated $8,000.00, $8,000.00, $4,000.00, $4,000.00, respectively

(based upon the Class Representatives’ respective contribution to and participation in the

case).

• The parties agree that $5,000.00 of the Settlement Amount will be paid to LWDA.

• Class Counsel will petition the Court for attorneys’ fees not to exceed 33% of the

Settlement Amount, plus reasonable costs, all subject to approval by the court. The

requested amount is supported by Class Counsel’s Lodestar calculation. David Decl. at

¶ 25. To the extent any portion of the fees and costs are not approved, such excess would

go to the Settlement Class pro rata. A detailed request for approval of an award of

attorneys’ fees and costs will be filed in advance of the final approval hearing and no less

than fourteen (14) days before the deadline for objecting to the settlement.

• The Settlement Amount minus Class Counsel’s attorneys’ fees and costs approved by the

Court, the actual enhancement awards to Named Plaintiffs, and the PAGA payment shall

constitute the “Net Settlement Amount.”

• Subject to the adjusted multiplier and Minimum Share described below, the

Net Settlement Amount will be allocated on a pro rata basis to each participating


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Settlement Class Member based upon his or her share of the aggregate number of weeks

worked during the Settlement Period under the “work-for-rent” arrangement, as described

in the First Amended Complaint. Taking into account the longer statute of limitations,

higher minimum wage, available penalties, and limits on rent credits in California, the

participating Settlement Class Members will receive an adjusted multiplier of 1.1 for each

week worked within the state of California during the Settlement Period under the “work-

for-rent” arrangement. Participating Settlement Class Members employed at any time

during the Settlement Period shall receive a minimum of $100 (the “Minimum Share”).

This allocation is intended to represent each Settlement Class Member’s fair share of the

Settlement Amount, while providing a minimal benefit to all who chose to participate.

The parties submit that this allocation is entirely fair and reasonable.

• Defendant will pay the employer’s share of any payroll taxes. Otherwise, Settlement

Class Members shall be responsible for the proper payment of taxes on all amounts

received by Settlement Class Member except that all deductions (including taxes on any

payments attributable to wages) will be deducted from amounts paid to Settlement Class

Members as required by law. The Parties agree that the amount of monies attributable to

wages will be thirty percent (30%) of the pay-out of the Net Settlement Amount per

participating Settlement Class Member. The balance will be attributed forty percent

(40%) to liquidated damages, penalties, and interest, and thirty percent (30%) to a non-

taxable reimbursement of lodging expenses related to the “work-for-rent” arrangement.

• Settlement Class Members will release all claims against Defendant for work performed

during the Settlement Period in any Covered Position: (1) for statutory claims for unpaid

wages (including but not limited to overtime pay, minimum wage, and regular wages),

and claims for interest, penalties, or premiums in connection therewith; (2) for injunctive

relief, declaratory relief, restitution, fraudulent business practices or punitive damages


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alleged or which could have been alleged under the facts pleaded in this case; (3) under

PAGA arising out of the wage, hour and payroll practices alleged or could have been

alleged based upon the facts alleged in this case; the Lawsuit; and (4) for any and all other

claims under California common law, the California Labor Code, California Wage Orders,

the California Business and Professions Code, and the FLSA asserted in or that could have

been asserted based upon the facts alleged in this case. Given the expansive nature of the

wage claims set forth in the Complaint, involving both lodging and off-the-clock work,

this release is intended to cover all wage and hour claims. The Court may note that

overtime claims were not specifically referenced in the Amended Complaint as that issue

did not arise until documents were examined. The amount of the overtime claims are

relatively small, and Plaintiffs intended to further amend their Complaint to add them in

the event the case was not settled. Additionally, the Class Representatives have agreed to

provide a general release.

• The proposed Notices and Claim Form will be sent by the Claims Administrator to Class

Members via U.S. first-class mail and, where an electronic mail address is available, by

email. Class Members who wish to object to the Settlement, will have thirty (30) calendar

days from the mailing of the Notices to file with the Court their objection. California

Non-FLSA Class Members will have thirty (30) days as well to elect to opt-out of the

California state law portion of the class action.

• Class Members who previously opted into the FLSA collective action portion of this case

are not required to complete a Claim Form and cannot opt-out of the settlement.

Otherwise, California Non-FLSA Class Members, in order to participate in the settlement

and receive a settlement payment, must submit a valid and timely claim form to the

Claims Administrator within sixty (60) days from the mailing of the Notices and Claim

Form.


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• A Class Member may object to the settlement, or any portion thereof, by filing a written

objection. To be valid and effective, any objection to approval of the settlement must be

filed with the Clerk of the Court, postmarked no later than thirty (30) calendar days from

the mailing of the Notices.

• In order for a California Non-FLSA Class Member to opt-out of the California class

action portion of this settlement, the Class Member must submit a written, signed, and

dated request for exclusion to the Claims Administrator that is postmarked by, or

physically delivered, no later than, thirty (30) calendar days from the mailing of the

Notice. A Class Member who effectively opts-out of the settlement will not receive any

payment, shall have no right to object to the settlement, and shall not be bound by any

release provided for in the settlement.

IV. CLASS ACTION SETTLEMENT APPROVAL PROCEDURE

A class action may not be dismissed, compromised, or settled without the approval of the

Court. See Federal Rule of Civil Procedure 23(e). Judicial proceedings have led to a defined

procedure and specific criteria for settlement approval in class action settlements, described in the

Manual for Complex Litigation §21.632 (4th ed. 2004). The Manual’s settlement approval

procedure describes two distinct steps:

1. The Court first conducts a preliminary fairness evaluation. If the court preliminarily

approves the settlement as falling within the range of possible settlement approval, notice to the

class is then disseminated and a “fairness” or final approval hearing is scheduled.

2. A “formal fairness hearing,” or final settlement approval hearing will proceed at which

class members may be heard regarding the settlement and at which evidence and argument

concerning the fairness, adequacy, and reasonableness of the settlement is presented. Manual for

Complex Litigation §21.632 (4th ed. 2004); Federal Rule of Civil Procedure 23(e)(2).

In making a fairness determination, a Court must evaluate factors such as: (1) the strength


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of plaintiffs’ case; (2) the risk, expense, complexity, and likely duration of further litigation;

(3) the risk of maintaining class action status throughout the trial; (4) the amount offered in

settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the

experience and views of counsel; (7) the presence of a governmental participant; and (8) the

reaction of the class members to the proposed settlement. Molski v. Gleich, 318 F.3d 937, 953

(9th Cir. 2003).1

Given that some of the above referenced factors cannot be fully determined until the Court

conducts a final fairness hearing, “a full fairness analysis is unnecessary at this state.” Alberto v.

GMRI, Inc., 252 F.R.D. 652 (E.D. Cal. 2008); West v. Circle K Stores, Inc., 2006 WL 1652598,

*9 (E.D. Cal. June 13, 2006) (“Accordingly, the court will simply conduct a cursory review of the

terms of the parties’ settlement for the purpose of resolving any glaring deficiencies before

ordering the parties to send the proposal to class members.”)

“Rather, preliminary approval of a settlement and notice to the proposed class is

appropriate: if ‘[1] the proposed settlement appears to be the product of serious, informed,

noncollusive negotiations, [2] has no obvious deficiencies, [3] does not improperly grant

preferential treatment to class representatives or segments of the class, and [4] falls within the

range of possible approval.’” Villegas v. J.P. Morgan Chase & Co., 2012 WL 5878390 at *5

(N.D. Cal. November 21, 2012) quoting In re Tableware Antitrust Litig., 484 F.Supp. 2d 1078, 1 “The Ninth Circuit has not established the criteria that a district court must consider in determining whether an FLSA settlement warrants approval. Most courts in this circuit, however, first consider whether the named plaintiffs are ‘similarly situated’ to the putative class members within the meaning of 29 U.S.C. § 216(b). If the collective action members are similarly situated, most courts then evaluate the settlement under the standard established by the Eleventh Circuit, which requires the settlement to constitute ‘a fair and reasonable resolution of a bona fide dispute over FLSA provisions . . . . If a settlement in an employee FLSA suit does reflect a reasonable compromise over issues . . . that are actually in dispute,’ the district court may ‘approve the settlement in order to promote the policy of encouraging settlement of litigation.’” Otey v. Crowdflower, Inc., 2015 U.S. Dist. LEXIS 86712, at *11-12 (N.D. Cal. July 2, 2015) (citing Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350, 1354-55 (11th Cir. 1982)). Since this case involves both an FLSA collective action and a Rule 23 class action, this memorandum focuses on the more stringent Rule 23 analysis. Under that analysis, the requirements for an FLSA collective action settlement are also clearly met.


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1079 (N.D. Cal. 2007).

Accordingly, a Court’s decision to approve a class action settlement may be reversed only

upon a strong showing of “clear abuse of discretion.” See Hanlon v. Chrysler Corp. 150 F.3d

1011, 1026 (9th Cir. 1998); Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992)

(in context of class action settlement, appellate court cannot “substitute [its] notions of fairness

for those of the [trial] judge and the parties to the agreement,” and will reverse only upon strong

showing of abuse of discretion).

By this Motion, Plaintiffs request that the Court take the first step in the settlement

approval process, and grant preliminary approval of the settlement.

V. PRELIMINARY APPROVAL OF THIS SETTLEMENT IS APPROPRIATE

The law favors settlement, particularly in class actions and other complex cases where

substantial resources can be conserved by avoiding the time, cost, and rigors of formal litigation.

City of Seattle, 955 F.2d at 1276; Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th Cir.

1976). “Voluntary conciliation and settlement are the preferred means of dispute resolution. This

is especially true in complex class action litigation.” Officers for Justice v. Civil Service Com’n

of City and County of San Francisco, 688 F.2d 615, 625 (9th Cir. 1982). These concerns apply in

a case such as this, where this settlement involves over 200 Plaintiffs.

A. The Proposed Settlement Was Made after Significant Discovery and Was the Product of Serious, Informed, Non-Collusive Negotiations.

The proposed settlement in this case was reached after significant discovery and informed

arms-length negotiations. David Decl. at ¶¶ 3, 7, 11.

In making a fairness determination, the court looks to what discovery has been completed

and the procedural posture of the litigation. Molski, 318 F.3d 937, 953. When litigation has

proceeded to the point where “the parties have sufficient information to make an informed

decision about settlement,” this factor weighs in favor of approval. Linney v. Cellular Alaska

P’ship, 151 F.3d 1234, 1239 (9th Cir. 1998).


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In this case, both Plaintiffs and Defendant recognized that it was in their mutual interest to

work towards early exploration of whether a settlement could be reached. David Decl. at ¶ 7.

Defendant agreed, through an informal discovery process, to provide a significant amount of

information and documents to enable Plaintiffs to fully and fairly evaluate both the liability and

damages aspects of this case. Id. The approach of providing employee-specific information for a

sample of the Settlement Class was rejected in favor of providing information for all Opt-In Class

Members and for California Non-FLSA Class Members (other than those few to whose

participation Defendant objected either due to being subject to a mediation procedure). Id. Over

a period of months, Defendant provided information and documents to Plaintiffs and answered

questions to resolve issues and ambiguities. Id. Plaintiffs were given access to a significant

amount of information related to the alleged violations, including pay stubs, payroll summaries,

time sheets, Form W-2’s, lease addendums and similar documents describing the “work-for-rent”

arrangement, and information on lodging-related costs paid by class members. Id. Class Counsel

had access to all of the Opt-In Class Members from whom to receive additional documents and

information, particularly information related to off-the-clock work. Id.

The parties had more than enough information to allow for a sufficient analysis of the

likelihood of certification (and decertification), liability, and damages. David Decl. at ¶¶ 3, 8.

Prior to attending mediation, the parties were fully aware of the strengths and weaknesses of their

respective positions. Id.

Additionally, as described above, the proposed settlement was reached after arms’ length

negotiations after a lengthy session with experienced wage and hour class action mediator,

Michael E. Dickstein, Esq. David Decl. at ¶ 11. Prior to the mediation, Mr. Dickstein held a

telephonic conference with counsel for both parties during which the parties were given the

opportunity to discuss the merits of their claims and raise and discovery concerns. Id.

Mr. Dickstein offered to facilitate any pre-mediation disputes in order to maximize the flow of


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information. Id. Further, during the mediation, Defendant produced additional highly

confidential company documents and information, upon the parties signing a Protective Order

which was later submitted and approved by the Court. Id.; ECF No. 98

At all times during this litigation, Defendant was represented by extremely competent and

experienced counsel, who vigorously defended its position while seeking a cost-effective

resolution to this lawsuit. There certainly was no collusion in the negotiations. David Decl. at

¶ 12.

B. The Proposed Settlement Has No Obvious Deficiencies.

A summary of the settlement terms is described above, and shows that there are no

obvious deficiencies. The proposed settlement offers monetary benefits to participating class

members in exchange for a release of wage and hour claims. Class Members have the ability to

object to any of the terms of the proposed settlement. California Non-FLSA Class Members will

be required to submit a valid and timely claim form to participate in the California class action

portion of the proposed settlement and have the option to exclude themselves from participating

in such portion of the lawsuit. Furthermore, the proposed settlement is “all-in,” and no monies

will revert back to Defendant.

C. The Proposed Settlement Does Not Improperly Grant Preferential Treatment to the Named Plaintiffs or Segments of the Class.

1. Enhancement Awards

The combined proposed enhancement awards amount to $24,000.00, which is 3% of the

proposed settlement. The amounts proposed to go to the individual Named Plaintiffs are

$8,000.00, $8,000.00, $4,000, and $4,000.00. “Courts routinely approve incentive awards to

compensate named plaintiffs for the services they provide and the risks they incurred during the

course of the class action litigation.” Ingram v. Coca-Cola Co., 200 F.R.D. 685, 694 (N.D. Ga.

2001) (quoting In re Southern Ohio Correctional Facility, 175 F.R.D. 270, 272 (S.D. Ohio

1997)). In the Coca-Cola case, the Court approved significant incentive awards to each named


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plaintiff in recognition of the services he or she provided to the class by responding to discovery,

participating in the mediation process and taking the risk of stepping forward on behalf of the

class. See Coca-Cola, 200 F.R.D. at 694; see also Van Vranken v. Atlantic Richfield Co., 901 F.

Supp. 294 (N.D. Cal. 1995) (approving $50,000 participation award).

In this case, Named Plaintiffs are responsible for this case existing at all. David Decl. at

¶ 22. By being willing to step forward and take the risks of being a named plaintiff, 200 other

people have benefitted. Id. The Named Plaintiffs accepted ultimate responsibility for Plaintiffs’

costs as the ethical rules that govern Virginia Class Counsel require the client to bear the ultimate

responsibility for costs. Id. It is common knowledge that prospective employers are frequently

performing Internet searches on job applicants. See, e.g., Job Applicant, Beware: You’re Being

Googled at http://career-advice.monster.com/job-search/getting-started/hr-googling-job-

applicants/article.aspx. An Internet search using any of the Named Plaintiffs’ names, particularly

together with the word “lawsuit” will bring up information on this case, allowing any prospective

employer to learn that each Named Plaintiff was at the forefront of a lawsuit against a former

employer. Id. This is a tremendous potential risk and burden for recent college graduates seeking

their first permanent jobs. Id.

All of the Named Plaintiffs were engaged in the prosecution of this case and assisted Class

Counsel whenever requested. David Decl. at ¶ 23. A distinction is being made between the two

Named Plaintiffs who were available to participate in the preparation immediately before

mediation and at the mediation itself and the two Named Plaintiffs who were not. Id. Although it

was outside circumstances that made two of the Named Plaintiffs unable to participate in

mediation and not in any way an unwillingness to do so, the two Named Plaintiffs who did

participate in the mediation process were instrumental in securing the proposed settlement, and a

differentiation in enhancement awards is warranted on that basis. Id. Additionally, service

enhancements are warranted in this matter as the Named Plaintiffs have agreed to a much broader


http://career-advice.monster.com/job-search/getting-started/hr-googling-job-applicants/article.aspx�


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release than class members. Id. at ¶ 30.

Courts have approved enhancement awards of at least the amount requested by the Named

Plaintiffs in cases where the common fund was similar in size or even less than in this case. See

e.g., Matheson v. T-Bone Rest. LLC, 2011 U.S. Dist. LEXIS 143773, at *25-26 (S.D.N.Y. Dec.

13, 2011) (finding $50,000 in service awards reasonable, including a $45,000 service award to

one plaintiff, where the total settlement fund was only $495,000); Mentor v. Imperial Parking

Sys., Inc., 2010 U.S. Dist. LEXIS 132831, at *6-7 (S.D.N.Y. Dec. 15, 2010) (approving $55,000

in total service fees, including a $40,000 service award to one named plaintiff, in a case where the

settlement fund, including attorney’s fees, totaled only $790,000).

Named Plaintiffs submit that the size of these proposed enhancement awards in no way

undermines the adequacy of their representation of the class. David Decl. at ¶ 24. Further,

receipt of an enhancement award was not conditioned upon any Name Plaintiff’s support of the

settlement as was the case in Radcliffe v. Experian Info. Solutions, 715 F.3d 1157 (9th Cir. 2013),

nor was there any agreement in advance that tied the amount of the enhancement award to the

size of the settlement as discussed with disapproval in Radcliffe. Id.

2. Multiplier for California Class Members

A multiplier of 1.1 is proposed to be applied to the California Plaintiffs to take into

account the longer statute of limitations, higher minimum wage, available penalties, and limits on

rent credits in California. Plaintiffs submit that this multiplier is entirely appropriate given the

increased potential recovery of California Class Members. David Decl. at ¶ 26. Defendant does

not dispute the appropriateness of the multiplier. Id.

D. The Proposed Settlement Falls within the Range of Possible Approval, and the Substantial Amount Offered in Settlement and the Risk, Expense and Complexity of Further Litigation Weigh in Favor of Preliminary Approval.

In evaluating whether the proposed settlement is adequate, “courts primarily consider

plaintiffs’ expected recovery balanced against the value of the settlement offer.” In re Tableware


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Antitrust Litigation, 484 F.Supp.2d 1078, 1080 (N.D. Cal. 2007). “Of course, the very essence of

a settlement is compromise, ‘a yielding of absolutes and an abandoning of highest hopes.’”

Officers for Justice v. Civil Service Com’n of City and County of San Francisco, 688 F.2d 615,

624 (9th Cir. 1982). In this matter, the proposed settlement clearly falls within the range of

permissible approval.

The proposed settlement delivers immediate valuable benefits to the settlement class.

David Decl. at ¶ 3. Specifically, the proposed settlement calls for Defendant to pay Eight

Hundred Thousand Dollars ($800,000.00) to approximately 204 Class Members. Id. at ¶ 16.

Importantly, the proposed settlement requires Defendant to pay the entire gross settlement

amount, with no monies reverting back to Defendant. Id.

The proposed settlement will provide average net distributions to individual Class

Members in the range of $2,500.00. Id. This settlement will bring real money to class members.

Id.

The settlement amount represents a substantial portion of the total damages available in

this case. David Decl. at ¶ 16. The crux of the case was the failure to pay minimum wage as a

result of Defendant’s work-for-rent policy. Prior to mediation, in calculations provided to

Plaintiffs by Defendant, the damages for that central aspect of the case were estimated at

$416,287 for the collective action portion of the lawsuit within the FLSA’s two-year statute of

limitations plus $165,934 for the additional, non-overlapping California class action portion of

the lawsuit. Id. at ¶ 32. In order to recover that amount, Plaintiffs would first have to overcome

Defendant’s arguments that class and collective treatment is not appropriate. Id. Defendant

argued that the “off-the-clock” aspect of the case was entirely unsuited for class treatment and

that the primary aspect of the case also faced the risk of decertification based upon the potential

complexity of the damages issues. Id. If these issues could be overcome, Plaintiffs would then

need to prevail on the issue of for whose primary benefit the lodging at issue was provided.


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Plaintiffs would then need to litigate with Defendant to determine what credit, if any, Defendant

may be entitled to receive for the cost of the lodging provided. Id. In order to recover more,

Plaintiffs would need to prevail on at least these issues: (1) the availability of liquidated

damages; (2) the ability to show “willfulness” in order to extend the FLSA statute of limitations

from two years to three years; and (3) the availability of the various California penalties, given

the Defendant’s arguments that the penalties were duplicative, punitive, and unconstitutional and

the permissive nature of some or all of the penalties. Id. Defendant hotly contested each of these

issues. Id. Plaintiffs’ ability to actually collect a large judgment, if obtained, also became an

issue at the mediation. Id.

If the Plaintiffs were able to prevail on each and every issue in the case and collect the

resulting judgment, Class Members, on average, might stand to recover approximately twice the

amount that will result from this settlement. David Decl. at ¶ 33. Given the litigation risk of all

of the issues in the case, including decertification risk, together with the potential issues with

collecting a judgment, weighed against the certainty of the proposed settlement, this settlement is

more than a fair and reasonable resolution of this case. Id.

While Plaintiffs were confident in their ability to prevail on these issues, each of those

issues carries litigation risk, and the risk, expense, and complexity of continued litigation all

support preliminary approval of the proposed settlement. Id.

E. Class Action Fairness Act (CAFA).

The Parties have agreed that, following the filing of the instant motion, a CAFA notice

will be delivered within the time period required by CAFA with respect to the Rule 23 class

action portion of this case.

VI. CONDITIONAL CERTIFICATION OF THE CLASS IS APPROPRIATE

The parties have stipulated that the Court may, for settlement purposes only, certify a

settlement class. David Decl. at ¶ 40.


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A proposed class may be conditionally certified if it “satisfies the requirements of

Rule 23(a) of the Federal Rules of Civil Procedure applicable to all class actions, namely:

(1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.

Hanlon, 150 F.3d at 1019.

A. Numerosity

Federal Rule of Civil Procedure 23(a)(1) requires that the class is so numerous that joinder

of all members is impracticable. Numerosity does not require that joinder of all members be

impossible, but only that joinder be impracticable. Arnold v. United Artists Theatre Circuit, Inc.

158 F.R.D. 439, 440 (N.D. Cal. 1994). In this matter, the settlement class includes approximately

204 persons, approximately 60 of whom are part of the California class action portion of the case.

Courts generally find the numerosity requirement satisfied when a class includes at least 40

members. See Jordan v. Los Angeles County, 669 F.2d 1311, 1319 (9th Cir. 1982), vacated on

other grounds, 459 U.S. 810, 103 S. Ct. 35, 74 L. Ed. 2d 48 (1982); see also Consolidated Rail

Corp. v. Town of Hyde Park, 47 F.3d 473, 482 (2d Cir. 1995). The size of this class satisfies the

numerosity requirement.

Additionally, the proposed class must be ascertainable, and must identify, “a distinct

group of plaintiffs whose members can be identified with particularity.” Lerwill v. Inflight

Motion Pictures, Inc., 582 F. 2d 507, 512 (9th Cir. 1978). Here, the members of the proposed

class can easily be and, in fact, already have been identified through Defendant’s timekeeping and

payroll records. David Decl. at ¶ 41. Therefore, the Settlement Class is both sufficiently

numerous and ascertainable.

B. Common Issues of Law and Fact

The commonality requirement is met if there are questions of law and fact common to the

class. See Hanlon, 150 F.3d at 1019 (“The existence of shared legal issues with divergent legal

factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal


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remedies within the class”). Here, for purposes of the settlement only, the parties agree that

common factual and legal issues include, among other things: (1) whether Defendant engaged in a

common course of failing to pay minimum wage and overtime under the FLSA due to taking

credits for lodging; (2) whether Defendant engaged in a common course of failing to pay

minimum wage and overtime required by Cal Wage Order No. 5 and other California wage and

hour law due to taking credits for lodging; (3) whether these alleged violations resulted in

ancillary violations of Labor Code §§ 201-203 and 226, as well whether they justify penalties

under Labor Code § 1197.1 through PAGA and support the basis for relief under the UCL. David

Decl. at ¶ 34. Furthermore, all class members suffer from, and seek redress for, the same alleged

injuries. Id. Under these specific circumstances, the commonality requirement is satisfied.

C. Typicality

The typicality requirement is met if the claims of the named representatives are typical of

those of the class, though “they need not be substantially identical.” See Hanlon, 150 F.3d at

1020; Classen v. Weller, 145 Ca1. App. 3d 27, 46-47 (1983). Courts have held that typicality and

commonality requirements “tend to merge,” and a finding of commonality ordinarily will support

a finding of typicality. General Tel. Co. of Southwest v. Falcon, 457 U.S. 147 (1982); Weyner v.

Syntex Corp., 117 F.R.D. 641, 644 (N.D. Cal. 1987). In this case, Plaintiffs are clearly members

of the proposed Settlement Class and allege claims typical of other Class Members and seek

similar damages as other Class Members. David Decl. at ¶ 35. Therefore, typicality is met in this

matter.

D. Adequacy of Representation

The adequacy requirement is met if the class representatives and class counsel have no

interests adverse to the interests of the proposed class members and are committed to vigorously

prosecuting the case on behalf of the class. See Hanlon, 150 F.3d at 1020; McGhee v. Bank of

Am., 60 Cal. App. 3d 442, 450-51 (1976).


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Named Plaintiffs and Class Counsel have fairly and adequately represented the proposed

Settlement Class, and have vigorously prosecuted this action on behalf of the proposed Settlement

Class. David Decl. at ¶ 36. Named Plaintiffs and Class Counsel do not have any claims or

interests that conflict or are antagonistic to the Settlement Class. Id. The adequacy requirement

is met where, as here, the Class Representatives’ claims are sufficiently interrelated to and not

antagonistic to the claims of the class. Hanlon, 150 F.3d at 1020.

The proposed settlement contemplates enhancement awards of $8,000.00, $8,000.00,

$4,000.00, and $4,000.00, upon approval by this Court. Other than these payments, Class

Counsel’s attorneys’ fees and costs, and the payment to the LWDA for its share of the settlement

of penalties, all of the participating Class Members will be entitled to a portion of the balance of

the gross settlement amount based on the formula as provided for in the settlement agreement.

Thus, no “settlement allocation” questions are raised. See Hanlon, 150 F.3d at 1020. Finally, any

California Non-FLSA Class Member who wishes to “opt-out” of the settlement of the California

class action portion of this case may do so. There is, therefore, no conflict of interest between

Named Plaintiffs and the other Class Members.

Furthermore, Class Counsel includes not only experienced wage and hour class action

litigators, but also, counsel who has litigated and is continuing to litigate substantially identical

cases in this industry with similar employers and employees. David Decl. at ¶ 39. Class Counsel

has diligently prosecuted this action for its entire duration. Id. There is no antagonism between

the proposed Class Representatives, their attorneys, and the putative class. Id.

Therefore, the requirements of Federal Rule of Civil Procedure 23(a) are met in this

matter.

E. Conditional Certification Pursuant to Federal Rule of Civil Procedure 23(B)(3) Is Appropriate As Common Questions Predominate

Under Federal Rule of Civil Procedure 23(b)(3), a plaintiff must demonstrate that


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common questions “predominate over any questions affecting only individual members” and that

a class action is “superior to other available methods for the fair and efficient adjudication of the

controversy. Fed.R.Civ.P. 23(b)(3). This requirement is met in this matter. When assessing

predominance and superiority, the court may consider that the class will be certified for

settlement purposes only. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997).

The manageability of trying the case as a class action is not a factor for a settlement-only class.

Id. at 620.

Federal Rule of Civil Procedure 23(b)(3) focuses on the relationship between common

and individual issues, and “tests whether proposed classes are sufficiently cohesive to warrant

adjudication by representation. Hanlon, 150 F.3d 1011, 1022. In this matter, Plaintiffs allege that

due to Defendant’s uniform and consistent policies and practices, employees were compensated

in violation of law with lodging and required to work off the clock. The proposed class in this

case is sufficiently cohesive because, for purposes of the settlement, the parties agree that all class

members share a “common nucleus of facts and potential legal remedies,” as was present in

Hanlon, where the Ninth Circuit approved class certification under the standards set forth in

Amchem.

Plaintiffs on behalf of themselves and the other Class Members, seek among other things,

minimum wage for all hours worked overtime pay where applicable; have common questions

about the policies of Defendant, and the Class Members’ potential legal remedies are identical.

Thus, this class may be certified for settlement purposes. Furthermore, it would be preferable to

resolve all of the Class Members’ claims by means of the settlement than to require each Class

Member to litigate his or her individual claims. David Decl. at ¶ 42.

VII. THE PROPOSED NOTICES ARE APPROPRIATE AND SATISFY DUE PROCESS

Federal Rule of Civil Procedure 23(e)(1)(b) provides that “[t]he court must direct notice in

a reasonable manner to all class members who would be bound by the proposal.” “The best


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notice practicable under the circumstances, including individual notice to all members who can be

identified through reasonable effort,” is required. Fed.R.Civ.P. 23(c)(2)(b). The proposed Notices

are attached to the Settlement Agreement as Exhibits “C” and “D.”

In this case, the parties propose that the Notices will be mailed via U.S. first-class mail

and, where an electronic mail address is available, by email, to each Class Member’s last known

address. Because only California Non-FLSA Class Members will receive a Claim Form and an

opportunity to opt-out, the Parties have agreed that two different Notices should be sent to the two

groups to account for this difference. With input from Class Counsel as set forth in the

Settlement Agreement, Defendant agrees to provide the Claims Administrator, within fourteen

(14) days following preliminary approval by this Court, a database containing a Class List

containing the name and last known address and email address, as provided by the Parties, for

each Class Member, the social security number of all Class Members, and the start and end dates

for each period during the Class Period that Class Members were employed by Defendant. If a

Notice is returned because of an undeliverable address, the Claims Administrator will conduct a

skip trace in an attempt to locate a current address.

The proposed Notices provide information on the meaning and nature of the proposed

Settlement Class; the terms and provisions of the settlement; the relief the settlement will provide

to Class Members; the applications of Plaintiffs for their enhancement awards and of Class

Counsel for their attorneys’ fees and costs; the payment to the LWDA of its share of the

settlement of penalties; the date; the procedure and deadlines for submitting objections, and,

where applicable, the procedure and deadlines for submitting claims and opting out of the

settlement.

The Notices include: (1) contact information for Class Counsel to answer questions;

(2) the address for a website, maintained by the Claims Administrator or Class Counsel, that has

links to the Notices, motions for approval and for attorneys' fees and any other important


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documents in the case; (3) instructions on how to access the case docket via PACER or in person

at any of the Court’s locations. The Notices state the date of the final approval hearing and

clearly states that the date may change without further notice to the class. The Notices advise

Class Members to check the settlement website or the Court’s PACER site to confirm that the

date has not been changed.

The Notices also fulfill the requirement of neutrality in class notices. They summarize the

proceedings to date, and the terms and conditions of the settlement, in an informative and

coherent manner, in compliance with the Manual’s statement that “the notice should be accurate,

objective, and understandable to class members.” The Notices clearly state that the settlement

does not constitute an admission of liability by Defendant and recognizes that the Court has not

ruled on the merits of the action. They also state that the final settlement approval decision has

yet to be made. Accordingly, the Notice complies with the standards of fairness, completeness,

and neutrality required of a settlement class notice disseminated under authority of the Court.

See Fed.R.Civ.P. 23(c)(2); 23(e).

VIII. A FINAL APPROVAL HEARING SHOULD BE SCHEDULED

The last step in the settlement approval process is the formal final approval hearing, at

which the Court may hear all evidence and argument necessary to evaluate the proposed

settlement. At that hearing, proponents of the settlement may explain and describe its terms and

conditions and offer argument in support of settlement approval; members of the settlement class,

or their counsel, may be heard in support of or in opposition to the settlement agreement.

IX. CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that this Court grant preliminary

approval of the settlement.


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Dated: November 20, 2015

KINGSLEY & KINGSLEY

/s/ Eric B. Kingsley ERIC B. KINGSLEY LIANE KATZENSTEIN LY Attorneys for Plaintiffs NICHOLAS SELBE, DANIEL GHYCZY, MAKAELA O’CONNELL, AND ANNIYA LOUIS

Dated: November 20, 2015

DAVID, KAMP & FRANK, L.L.C.

/s/ Joshua M. David JOSHUA M. DAVID NICHOLAS A. NUNES Attorneys for Plaintiffs NICHOLAS SELBE, DANIEL GHYCZY, MAKAELA O’CONNELL, AND ANNIYA LOUIS

I, Joshua M. David, am the ECF User whose identification and password are being used to

file this Joint Stipulation and Case Status Report. In compliance with Local Rule 5-1(i)(3),

I hereby attest that all signatories hereto concurred in and authorized this filing.

By: /s/ Joshua M. David


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DECLARATION IN SUPPORT OF MOTION






SAN FRANCISCO DIVISION

NICHOLAS SELBE, DANIEL GHYCZY, MAKAELA O’CONNELL, and ANNIYA LOUIS on behalf of themselves and others similarly situated,

Plaintiffs,

v.


Defendant.


DECLARATION OF JOSHUA M. DAVID IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT

Date: December 18, 2015 Time: 9:00 a.m. Judge: Hon. Maxine M. Chesney Location: Courtroom 7 Complaint filed: July 17, 2014 Trial date: Not set

Case 3:14-cv-03238-MMC Document 103-1 Filed 11/20/15 Page 1 of 70

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1 DECLARATION IN SUPPORT OF MOTION


DECLARATION OF JOSHUA DAVID

I, JOSHUA DAVID, declare the following:

1. I am an attorney and partner in the law firm David, Kamp & Frank, L.L.C.,

counsel of record for Plaintiffs Nicholas Selbe, Daniel Ghyczy, Makaela O’Connell, and

Anniya Louis, on behalf of themselves and others similarly situated, in the above referenced

matter, Nicholas Selbe, et al. v. Peak Campus Management, LLC, Case No.: 3:14-CV-3238-

MMC, and am admitted to practice before the Supreme Court of Virginia and all inferior courts,

and admitted pro hac vice before the United States District Court, Northern District of California

by Order dated August 22, 2014. ECF No. 12. I have associated local co-counsel, namely

Eric B. Kingsley, who is admitted before the United States District Court, Northern District of

California and who maintains an office within the State of California.

2. This Declaration is made in support of Plaintiffs Nicholas Selbe, Daniel Ghyczy,

Makaela O’Connell, and Anniya Louis’ (collectively, “Named Plaintiffs”) Motion for Preliminary

Approval of Class and Collective Action Settlement.

3. This Settlement, which was negotiated between Plaintiffs and Defendant Peak

Campus Management, LLC (“Defendant”), is fair and reasonable because it provides substantial

and immediate benefits to the Class Members. The Settlement is the product of extensive arms’

length negotiations by experienced counsel on both sides after thorough discovery, litigation, and

recognition of the strengths and weaknesses of each side’s positions. In calculating the

appropriate settlement amount, the parties had sufficient information and had conducted an

adequate investigation to allow them to make educated and informed analyses and conclusions.

Accordingly, on behalf of Named Plaintiffs and on behalf of the Class, I submit that the

settlement that each participating class member will receive is fair, reasonable, and adequate

given the inherent risks and costs of litigation.

4. Named Plaintiffs filed the original Complaint in this matter on July 17, 2014. The

Complaint, as amended, alleged violations of the Fair Labor Standards Act (“FLSA”) as well as

California state wage and hour law (“California Claims”). More specifically, Plaintiffs asserted


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claims for: (1) FLSA Minimum Wage; (2) California Minimum Wage and Wage Credits (Wage

Order No. 5 and Labor Code §§ 1182.12-1182.13, 1194, 1194.2 & 1194.5); (3) California

Waiting Time Penalties (Labor Code §§ 201-203); (4) California Record Keeping (Wage Order

No. 5 and Labor Code § 226); and (5) California Unfair Competition Law (Business and

Professions Code § 17200) (“UCL”). On February 10, 2015, pursuant to a joint stipulation and

Order of this Court, Named Plaintiffs filed a First Amended Complaint to assert an additional

count under Labor Code § 2698, et seq., known as the California Private Attorney General Act of

2004 (“PAGA”), and make minor corrections to the original Complaint.

5. Before filing this action, Class Counsel investigated and researched the facts and

circumstances underlying the issues and applicable law, and engaged in extensive factual

investigation into the organization and operations of Defendant’s corporate structure and

facilities.

6. Pursuant to a joint motion of the parties, the Court, on January 21, 2015,

conditionally certified this action as an FLSA collective action (the “Consent Order”). The

Consent Order approved the notice plan agreed upon by the parties. Through the notice plan and

opt-in process, 165 people filed Consent to Join Collective Action forms to join the FLSA portion

of the lawsuit as opt-in plaintiffs. An additional number of people are putative plaintiffs pursuant

to the California class action portion of the lawsuit.

7. On October 28, 2014, the Named Plaintiffs served extensive written discovery on

the Defendant. Both Plaintiffs and Defendant recognized that it was in their mutual interest to

work towards early exploration of whether a settlement could be reached. Through a lengthy

meet and confer process, the Defendant agreed to provide significant informal discovery to the

Plaintiffs that would enable the Plaintiffs to evaluate an appropriate settlement of this case. Over

several months, Defendant provided answers to Plaintiffs’ pertinent interrogatories informally and

provided payroll, time record, and tenant-related documents and information for the Named

Plaintiffs and, with the exception of a few class members to whose participation the Defendant

objected, class members who opted into the FLSA collective action and the collective action

putative class members. This information included, as applicable and available, pay stubs,


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payroll summaries, time sheets, Form W-2’s, lease addenda and similar documents describing the

“work-for-rent” arrangement, information on lodging-related costs paid by class members, and

other information such as various charts and data analyses related to the liability and damages

aspects of this case. Over the course of this informal discovery process nearly 5,500 pages of

documents were produced by Defendant and carefully analyzed and examined by Class Counsel.

Class Counsel conducted a thorough review of Defendant’s practices related to methods and

practices of compensation to All-Stars. Class Counsel also had access to all of the Opt-In Class

Members from whom to receive additional documents and information, particularly information

related to off-the-clock work.

8. Plaintiffs’ Class Counsel analyzed Defendant’s potential liability in the instant

case for the following claims alleged in the Amended Complaint as well as any additional claims

that could be alleged to be as follows:

a. Plaintiffs analyzed Defendant’s liability for unpaid wages, including, but

not limited to, unpaid minimum wages pursuant to the Fair Labor Standards Act of 1938

(“FLSA”), 29 U.S.C. § 201, et seq., as well as related Department of Labor Wage and Hour

Division regulations.

b. Plaintiffs analyzed Defendant’s liability for unpaid wages, including but

not limited to minimum wage, overtime, and the taking of lodging credits from pay, including

violations of Labor Code §§ 1182.12, 1182.13, and 1194, as well as Cal. Wage Order No. 5.

c. Plaintiffs asserted that Defendant violated Cal. Wage Order No. 5, and thus

violated or were subject to action under Labor Code §§ 1182.12, 1182.13, and 1194, when

Defendant attempted to take a credit in excess of the amounts allowed by Cal. Wage Order No. 5,

resulting in the payment of regular wages and overtime wages below that required by California

law. Defendant asserted that it was entitled to a credit under Cal Wage Order No. 5 and that those

credits, in addition with other credits for cash payments made, resulted in little or no minimum

wage and overtime violations.

d. Plaintiffs also analyzed Defendant’s liability for and/or sought penalties


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and other remedies under Cal. Labor Code §§ 201-203 for failure to timely pay class members

upon conclusion of their employment, Cal. Wage Order No. 5 and Cal. Labor Code § 226 for

failing to keep and provide class members accurate wage statements, Cal. Bus. Prof. Code

§ 17000, et seq., and Cal. Labor Code § 1197.1, et seq., through PAGA. Defendant denied

liability under these provisions.

9. Plaintiffs asserted that the lodging was provided to employees of Defendant known

as “All-Stars” for Defendant’s primary benefit and convenience. All-Stars were required to live

on site, and the All-Star position was regularly described as a “work-for-rent position.” By living

onsite, the All-Stars were able to fulfill their “resident advisor” job duties, which included being

available at all times to respond to incidents and emergencies and being a role model in the

community. In that sense, the requirement of residency and the provision of lodging was a

necessary tool of the job. Because onsite residency was an All-Star job requirement, integral to

the position, and served the employer’s needs, Plaintiffs’ assertion is that Defendant was not

allowed to take a credit for the costs of the housing towards the applicable minimum and/or

overtime wages due to All-Stars. As such, Plaintiffs asserted that Defendant: (1) failed to pay

All-Stars the applicable minimum wage; (2) failed to pay All-Stars the applicable overtime wage;

(3) failed to reimburse All-Stars for costs related to the residency requirement borne by the

All-Stars that caused wages to fall below the applicable minimum and/or overtime wage.

Plaintiffs also asserted that off-the-clock work was routinely performed at Defendant’s direction

by most All-Stars, but went unrecorded and uncompensated.

10. Defendant asserted that class or collective treatment of All Stars is improper on

account of highly fact specific individualized questions that defeat commonality and

manageability of this action as a class. Additionally, Defendant asserted that Plaintiffs will not be

able to obtain class certification because damages cannot be proven with common evidence and

any kind of proposed solution would violate Defendant’s due process rights. As for the merits

of the claims, Defendant asserted that the lodging provided was furnished primarily for the

benefit or convenience of the All-Stars such that Defendant was entitled to a credit against wages


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for the costs of the lodging furnished. Defendant asserted that most All-Stars sought a position

with Defendant after choosing to move into one of the units as their preferred student lodging and

sought employment because it provided an easy alternative to rent with an easy job with flexible

hours and duties that caused minimal interference with their school schedules. Defendant

disputes that All-Stars were required to stay on the premises at all times. Defendant further

denied that off-the-clock work ever occurred or was required and, in any event, asserted that the

claim was not suitable for collective action or class treatment.

11. On July 30, 2015, the parties attended a full day private mediation session in

Los Angeles, California with experienced wage and hour mediator Michael E. Dickstein, Esq.

Prior to the mediation, Mr. Dickstein held a telephonic conference with counsel for both parties

during which the parties were given the opportunity to discuss the merits of their claims and raise

and discovery concerns. Mr. Dickstein offered to facilitate any pre-mediation disputes in order to

maximize the flow of information. In preparation for the mediation and accordance with

Mr. Dickstein’s suggested procedure, the parties worked, in advance of the mediation, on an

estimate of potential damages. At a mediation that lasted in excess of fifteen hours, the parties

agreed to a settlement of this case and executed a “Memorandum of Understanding” outlining the

terms of the settlement. During the mediation, Defendant produced additional highly confidential

company documents and information, upon the parties signing a Protective Order which was later

submitted and approved by the Court. The parties subsequently agreed to a more formal

Settlement Agreement setting forth the terms of their agreed settlement. The Settlement

Agreement requires that the parties receive Court approval of their agreed settlement.

12. At all times during this litigation, Defendant was represented by extremely

competent and experienced counsel, who vigorously defended its position while seeking a cost-

effective resolution to this lawsuit. There was no collusion in the negotiations.

13. I am aware of no obvious deficiencies in the proposed settlement. The proposed

settlement offers monetary benefits to participating class members in exchange for a release of

wage and hour claims. Class Members have the ability to object to any of the terms of the


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proposed settlement. Class Members who worked in California but did not opt-in to the lawsuit

(“California Non-FLSA Class Members”) will be required to submit a valid and timely claim

form to participate in the California class action portion of the proposed settlement and have the

option to exclude themselves from participating in such portion of the lawsuit. Furthermore, the

proposed settlement is “all-in”, and no monies will revert back to Defendant.

14. Plaintiffs and Defendant stipulate to certification of a class, for settlement

purposes only, as follows:

All persons who have submitted a “Consent to Join Collective Action” in the instant Lawsuit prior to June 1, 2015 (“Opt-In Class Members”) and all individuals employed in the State of California between January 1, 2011 and August 1, 2014 who were employed in any of the following “Covered Positions”: All-Star; Community Advisor; Community Assistant; Leasing All-Star; Work for Rent Leasing All-Star; or any combination thereof (“California Class Members”) (collectively, “Class Members”).

15. This class is consistent with the collective action class previously conditionally

certified by the Court for the FLSA portion of this lawsuit. Added to it are the California

Non-FLSA Class Members with respect to the California class action portion of this lawsuit.

That portion of the class is consistent with the class for the California action proposed in the

Complaint and the Amended Complaint.

16. The proposed settlement calls for Defendant to pay Eight Hundred Thousand

Dollars ($800,000.00) (the “Settlement Amount”) to approximately 204 Class Members

(including the Named Plaintiffs). No monies will revert back to Defendant. The proposed

settlement will provide average net distributions to individual Class Members of $2,500.00. This

settlement will bring real money to Class Members, and represents a substantial portion of the

total damages available in this case.

17. The Settlement Amount will include all payments to be made to Class Members,

enhancement awards to Named Plaintiffs as the Class Representatives, employees’ share of

payroll taxes that Defendant is required to withhold as a matter of law, Class Counsel’s attorneys’

fees and costs, and the payment to LWDA for its share of the settlement of penalties.

18. Defendant denies any liability of wrongdoing of any kind associated with the


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claims alleged in this case.

19. The parties have agreed that Simpluris will be the Claims Administrator.

Defendant will incur any administrative cost associated with administration. As the Defendant

will bear the costs of Claim Administration, the fees of the Claims Administrator will not affect

the funds available to the Settlement Class.

20. The parties agree that $5,000.00 of the Settlement Amount will be paid to LWDA.

21. The proposed settlement includes enhancement awards for the Named Plaintiffs

that are reasonable and do not improperly confer preferential treatment. The amounts proposed to

go to the individual Named Plaintiffs are $8,000.00, $8,000.00, $4,000.00, and $4,000.00,

respectively.

22. Named Plaintiffs are responsible for this case existing at all. Because of the

Named Plaintiffs’ willingness to step forward, hundreds of other people have benefitted. Named

Plaintiffs accepted ultimate responsibility for Plaintiffs’ costs as the ethical rules that govern

Virginia Class Counsel require the client to bear the ultimate responsibility for costs. It is

common knowledge that prospective employers are frequently performing Internet searches on

job applicants. See Ex. 1, Job Applicant, Beware: You’re Being Googled at http://career-

advice.monster.com/job-search/getting-started/hr-googling-job-applicants/article.aspx. An

Internet search using any of the Named Plaintiffs’ names, particularly together with the word

“lawsuit” will bring up information on this case, allowing any prospective employer to learn that

each Named Plaintiff was at the forefront of a lawsuit against a former employer. This is a

tremendous potential risk and burden for recent college graduates seeking their first permanent

jobs.

23. All of the Named Plaintiffs were engaged in the prosecution of this case and

assisted Class Counsel whenever requested. A distinction is being made between the two Named

Plaintiffs who were available to participate in the preparation immediately before mediation and

at the mediation itself and the two Named Plaintiffs who were not. Although it was outside

circumstances that made two of the Named Plaintiffs unable to participate in mediation and not in




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any way an unwillingness to do so, the two Named Plaintiffs who did participate in the mediation

process were instrumental in securing the proposed settlement, and a differentiation in

enhancement awards is warranted on that basis.

24. The size of these proposed enhancement awards in no way undermines the

adequacy of their representation of the class. Further, receipt of an enhancement award was not

conditioned upon any Named Plaintiff’s support of the settlement, nor was there any agreement in

advance that tied the amount of the enhancement award to the size of the settlement.

25. Class Counsel will Petition the Court for attorneys’ fees not to exceed 33% of the

Settlement Amount, plus reasonable costs, all subject to approval by the Court. The requested

amount is supported by Class Counsel’s Lodestar calculation. To the extent any portion of the

fees and costs are not approved, such excess would go to the Settlement Class pro rata. A

detailed request for approval of an award of attorneys’ fees and costs will be filed in advance of

the final approval hearing and no less than fourteen (14) days before the deadline for objecting to

the settlement.

26. Plaintiffs propose a multiplier of 1.1 to be applied to the California Plaintiffs to

take into account the longer statute of limitations, higher minimum wage, available penalties, and

limits on rent credits in California. This multiplier is entirely appropriate given the increased

potential recovery of California Class Members. Defendant does not dispute the appropriateness

of the multiplier.

27. The Settlement Amount minus Class Counsel’s attorneys’ fees and costs approved

by the Court, the actual enhancement awards to Named Plaintiffs, and the PAGA payment shall

constitute the “Net Settlement Amount.”

28. Subject to the adjusted multiplier and Minimum Share described below, the Net

Settlement Amount will be allocated on a pro rata basis to each participating Settlement Class

Member based upon his or her share of the aggregate number of weeks worked during the

Settlement Period under the “work-for-rent” arrangement, as described in the First Amended

Complaint. Taking into account the longer statute of limitations, higher minimum wage,


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available penalties, and limits on rent credits in California, the participating Settlement Class

Members will receive an adjusted multiplier of 1.1 for each week worked within the state of

California during the Settlement Period under the “work-for-rent” arrangement. Participating

Settlement Class Members employed at any time during the Settlement Period shall receive a

minimum of $100 (the “Minimum Share”). This allocation is intended to represent each

Settlement Class Member’s fair share of the Settlement Amount, while providing a minimal

benefit to all who chose to participate. The parties submit that this allocation is entirely fair and

reasonable.

29. Defendant will pay the employer’s share of any payroll taxes. Otherwise,

Settlement Class Members shall be responsible for the proper payment of taxes on all amounts

received by Settlement Class Member except that all deductions (including taxes on any

payments attributable to wages) will be deducted from amounts paid to Settlement Class

Members as required by law. The parties have agreed that the amount of monies attributable to

wages will be thirty percent (30%) of the pay-out of the Net Settlement Amount per participating

Settlement Class Member. The balance will be attributed forty percent (40%) to liquidated

damages, penalties, and interest, and thirty percent (30%) to a non-taxable reimbursement of

lodging expenses related to the “work-for-rent” arrangement.

30. Settlement Class Members will release all claims against Defendant for work

performed during the Settlement Period in any Covered Position: (1) for statutory claims for

unpaid wages (including but not limited to overtime pay, minimum wage, and regular wages), and

claims for interest, penalties, or premiums in connection therewith; (2) for injunctive relief,

declaratory relief, restitution, fraudulent business practices or punitive damages alleged or which

could have been alleged under the facts pleaded in this case; (3) under PAGA arising out of the

wage, hour and payroll practices alleged or could have been alleged based upon the facts alleged

in this case; the Lawsuit; and (4) for any and all other claims under California common law, the

California Labor Code, California Wage Orders, the California Business and Professions Code,

and the Fair Labor Standards Act asserted in or that could have been asserted based upon the facts


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alleged in this case. Given the expansive nature of the wage claims set forth in the Complaint,

involving both lodging and off-the-clock work, this release is intended to cover all wage and hour

claims. Additionally, the Class Representatives have agreed to provide a general release.

31. Overtime claims were not specifically referenced in the Amended Complaint as

that issue did not arise until documents were examined. The amount of the overtime claims are

relatively small, and Plaintiffs intended to further amend their Complaint to add them in the event

the case was not settled.

32. Prior to mediation, the damages for that central aspect of the case were estimated

at $416,287 for the collective action portion of the lawsuit within the FLSA’s two-year statute of

limitations plus $165,934 for the additional, non-overlapping California class action portion of

the lawsuit. In order to recover that amount, Plaintiffs would first have to overcome Defendant’s

arguments that class and collective treatment is not appropriate. Defendant argued that the “off

the-clock” aspect of the case was entirely unsuited for class treatment and that the primary aspect

of the case also faced the risk of decertification based upon the potential complexity of the

damages issues. If these issues could be overcome, Plaintiffs would then need to prevail on the

issue of for whose primary benefit the lodging at issue was provided. Plaintiffs would then need

to litigate with Defendant to determine what credit, if any, Defendant may be entitled to receive

for the cost of the lodging provided. In order to recover more, Plaintiffs would need to prevail on

at least these issues: (1) the availability of liquidated damages; (2) the ability to show

“willfulness” in order to extend the FLSA statute of limitations from two years to three years; and

(3) the availability of the various California penalties, given the Defendant’s arguments that the

penalties were duplicative, punitive, and unconstitutional and the permissive nature of some or all

of the penalties. Defendant hotly contested each of these issues. Plaintiffs’ ability to actually

collect a large judgment, if obtained, also became an issue at the mediation.

33. If the Plaintiffs were able to prevail on each and every issue in the case and collect

the resulting judgment, Class Members, on average, might stand to recover approximately twice

the amount that will result from this settlement. Given the litigation risk of all of the issues in the


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case, including decertification risk, together with the potential issues with collecting a judgment,

weighed against the certainty of the proposed settlement, this settlement is more than a fair and

reasonable resolution of this case. While Plaintiffs were confident in their ability to prevail on

these issues, each of those issues carries litigation risk, and the risk, expense, and complexity of

continued litigation all support preliminary approval of the proposed settlement.

34. For purposes of settlement only, the parties agree that common factual and legal

issues include, among other things: (1) whether Defendant engaged in a common course of failing

to pay minimum wage and overtime under the FLSA due to taking credits for lodging;

(2) whether Defendant engaged in a common course of failing to pay minimum wage and

overtime required by Cal Wage Order No. 5 and other California wage and hour law due to taking

credits for lodging; (3) whether these alleged violations resulted in ancillary violations of Labor

Code §§ 201-203 and 226, as well whether they justify penalties under Labor Code § 1197.1

through PAGA and support the basis for relief under the UCL. Furthermore, all Class Members

suffer from, and seek redress for, the same alleged injuries.

35. Plaintiffs are clearly members of the proposed Settlement Class and allege claims

typical of other Class Members and seek similar damages as other Class Members.

36. Named Plaintiffs and Class Counsel have fairly and adequately represented the

proposed Settlement Class, and have vigorously prosecuted this action on behalf of the proposed

Settlement Class. Named Plaintiffs and Class Counsel do not have any claims or interests that

conflict or are antagonistic to the Settlement Class.

37. The proposed settlement contemplates enhancement awards to each of the Named

Plaintiffs of $8,000.00, $8,000.00, $4,000.00, and $4,000.00, respectively, upon approval by this

Court. Other than these payments, Class Counsel’s attorneys’ fees and costs, and the payment to

the LWDA for its share of the settlement of penalties, all of the participating Class Members will

be entitled to a portion of the balance of the gross settlement amount based on the formula as

provided for in the Settlement Agreement.

38. Any California Non-FLSA Class Member who wishes to “opt out” of the


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settlement of the California class action portion of this case may do so.

39. Class Counsel includes not only experienced wage and hour class action litigators,

but also, counsel who has litigated and is continuing to litigate substantially identical cases in this

industry with similar employers and employees. Class Counsel has diligently prosecuted this

action for its entire duration. There is no antagonism between the proposed Class

Representatives, their attorneys, and the putative class.

40. The parties have stipulated that the Court may, for settlement purposes only,

certify a settlement class. For purposes of settlement only, the parties agree that all class

members share a common nucleus of facts and potential legal remedies.

41. The members of the proposed class can easily be and, in fact, already have been

identified through Defendant’s timekeeping and payroll records.

42. It would be preferable to resolve all of the Class Members’ claims by means of the

settlement than to require each Class Member to litigate his or her individual claims.

43. The parties propose that the notice of the settlement will be mailed via U.S. first-

class mail and, where an electronic mail address is available, by email, to each Class Member’s

last known address. With input from Class Counsel as set forth in the Settlement Agreement,

Defendant agrees to provide the Claims Administrator, within fourteen (14) days following

preliminary approval by this Court, a database containing a Class List containing the name and

last known address and email address, if any, for each Class Member, the social security number

of all Class Members, and the start and end dates for each period during the Class Period that

Class Members were employed by Defendant. If a notice is returned because of an undeliverable

address, the Claims Administrator will conduct a skip trace in an attempt to locate a current

address.

44. The proposed Notices provide information on the meaning and nature of the

proposed Settlement Class; the terms and provisions of the settlement; the relief the settlement

will provide to Class Members; the applications of Plaintiffs for their enhancement awards and of

Class Counsel for their attorneys’ fees and costs; the payment to the LWDA of its share of the


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settlement of penalties; the date; and the procedure and deadlines for submitting objections, and,

where applicable, the procedure and deadlines for submitting claims and opting out of the

settlement.

45. The Notices include: (1) contact information for Class Counsel to answer

questions; (2) the address for a website, maintained by the Claims Administrator or Class

Counsel, that has links to the Notices, motions for approval and for attorneys’ fees and any other

important documents in the case; (3) instructions on how to access the case docket via PACER or

in person at any of the Court’s locations. The Notices state the date of the final approval hearing

and clearly states that the date may change without further notice to the class. The Notices advise

Class Members to check the settlement website or the Court’s PACER site to confirm that the

date has not been changed.

46. The Notices also fulfill the requirement of neutrality in class notices. They

summarize the proceedings to date, and the terms and conditions of the settlement, in an

informative and coherent manner, in compliance with the Manual’s statement that “the notice

should be accurate, objective, and understandable to class members.” The Notices clearly state

that the settlement does not constitute an admission of liability by Defendant and recognizes that

the Court has not ruled on the merits of the action. It also states that the final settlement approval

decision has yet to be made.

47. Attached hereto as Exhibit 1 is a true and accurate copy of the Stipulated

Settlement Agreement executed by all parties. The proposed Notices and Claim Form are

attached to the Settlement Agreement.

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct.

Executed this 20th day of November, 2015 at Newport News, Virginia.

/s/ Joshua M. David__________ JOSHUA M. DAVID


Exhibit 1 To Declaration of Joshua M. David

Settlement Agreement


LITTLER MENDELSON, P.C. 633 West 5th Street

63rd Floor Los Angeles, CA 90071

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FLSA COLLECTIVE ACTION CLASS ACTION COMPLAINT (NO. 3:14-CV-3238-JSC)

ELIZABETH STAGGS WILSON, Bar No. 183160 [email protected] LITTLER MENDELSON, P.C. 633 West 5th Street 63rd Floor Los Angeles, California 90071 Telephone: 213.443.4300 Facsimile: 213.443.4299 SHANNON R. BOYCE, Bar No. 229041 [email protected] FATEMEH S. MASHOUF, Bar No. 288667 [email protected] LITTLER MENDELSON, P.C. 2049 Century Park East, 5th Floor Los Angeles, CA 90067.3107

Attorneys for Defendant PEAK CAMPUS MANAGEMENT, LLC [Additional attorneys appear on next page.]



NICHOLAS SELBE, DANIEL GHYCZY, MAKAELA O'CONNELL, and ANNIYA LOUIS on behalf of themselves and others similarly situated,

Plaintiffs,

v.


Defendant.


STIPULATED SETTLEMENT AGREEMENT OF CLASS ACTION CLAIMS




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2.






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3.

This Stipulation and Settlement Agreement of Class Action Claims

(“Settlement,” “Settlement Agreement,” “Agreement,” or “Stipulation”) is made

between named Plaintiffs NICHOLAS SELBE, DANIEL GHYCZY, MAKAELA

O'CONNELL, and ANNIYA LOUIS (“Named Plaintiffs”), on behalf of themselves

and each of the other “Settlement Class Members” as defined in this Agreement, on

the one hand, and Peak Campus Management, LLC (“Defendant”) on the other. All

Named Plaintiffs and Defendant are hereinafter referred to collectively as the

“Parties.” This Agreement is subject to the approval of the United States District

Court, Northern District of California.

I. INTRODUCTION AND NATURE OF ACTIONS

A. Nicholas Selbe, et al. v. Peak Campus Management LLC Case No. 3:14-cv-3238-MMC 1. Named Plaintiffs filed their complaint in the Northern District of

California on July 17, 2014 against Defendant on behalf of persons working in non-

exempt positions under a “work for rent” arrangement at all of Defendant’s locations

in the country. Named Plaintiffs assert claims for: (1) FLSA Minimum Wage; (2)

California Minimum Wage and Wage Credits (Wage Order No. 5 and Labor Code

sections 1182.12-1182.13, 1194, 1194.2 & 1194.5); (3) California Waiting Time

Penalties (Labor Code section 201-203); (4) California Record Keeping (Wage Order

No. 5 and Labor Code section 226); and (5) California Unfair Competition (Business

and Professions Code section 17200). On February 10, 2015, pursuant to a joint

stipulation and Court Order, Named Plaintiffs filed a First Amended Complaint

(“FAC”) to assert an additional count under the California Private Attorney General

Act of 2004 (“PAGA”) (Labor Code section 2698, et seq.) and make minor

corrections to the original Complaint.

2. Settlement Case: This action, as amended pursuant to the FAC,

shall be referred to as the “Settlement Case.”




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4.

B. Defendant Denial of Liability. 3. Defendant denies any liability or wrongdoing of any kind

associated with the claims alleged in the Settlement Case, and further denies that, for

any purpose other than settling these matters, these actions are appropriate for class

treatment. Defendant maintains, among other things, that it has complied with Federal

and California law in all aspects. Nothing in the Memorandum of Understanding or in

this Settlement shall be construed or deemed as an admission of liability, culpability,

negligence, or wrongdoing on the part of Defendant.

C. Settlement Discussions. 4. On July 30, 2015, the Parties attended a full day private mediation

session in Los Angeles, California with experienced wage and hour mediator Michael

E. Dickstein, Esq. After the conclusion of mediation, the parties entered into a

Memorandum of Understanding (“Memorandum of Understanding”) and reached the

following class litigation Settlement, which is subject to Court approval and intended

to be a full and final resolution of the Settlement Case, as well as each and all claims

asserted therein.

II. DEFINITIONS 5. Defendant: “Defendant,” as referenced herein, means Peak

Campus Management, LLC.

6. Named Plaintiffs: Named Plaintiffs, as referenced herein, means

Nicholas Selbe, Daniel Ghyczy, Makaela O'Connell, and Anniya Louis.

7. Parties. The “Parties,” as referenced herein, shall include

Defendant, as defined in Paragraph 5, and Named Plaintiffs, as defined in

Paragraph 6.

8. Released Parties: The Released Parties, as referenced herein and

as released in the Settlement, means Defendant, Peak Campus Development, LLC,

and Blue Vista Capital Management, LLC, their present and former parent companies,

present owners, former owners, subsidiaries, related or affiliated companies,




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5.

shareholders, officers, directors, employees, agents, attorneys, insurers, successors,

and assigns, and any individual or entity which could be jointly liable with Defendant,

or any of them (hereinafter referred to as the “Released Parties”).

9. Class Counsel: The Parties agree to the designation of Joshua M.

David of David, Kamp & Frank, L.L.C. and Eric B. Kingsley of Kingsley & Kingsley,

APC as counsel for the Settlement Class Members for all purposes in the Settlement

Case (“Class Counsel”). Class Counsel agrees that if any lawsuit is or has been filed

by Named Plaintiffs against any Released Party in any court prior to preliminary

approval that includes claims that in any way seek the same relief or rely in whole or

in part upon the same facts as the Settlement Case, Named Plaintiffs shall dismiss

with prejudice any such lawsuit.

10. Class Representatives. Named Plaintiffs, as defined in paragraph

6, shall be referred to as “Named Plaintiffs” or “Class Representatives,”

interchangeably.

11. The Class. Solely for purposes of this Settlement, the Parties

stipulate and agree to the certification of the claims asserted on behalf of putative class

members. Accordingly, the Parties stipulate and agree that in order for this Settlement

to occur, the Court must certify a class or classes (whether one or more than one, the

“Class”), which shall include:

All persons who have submitted a “Consent to Join Collective

Action” in the instant Lawsuit prior to June 1, 2015 (“Opt-In Class

Members”) and all individuals employed in the State of California

between January 1, 2011 and August 1, 2014 who were employed in

any of the following “Covered Positions”: All Star; Community

Advisor; Community Assistant; Leasing All-Star; Work for Rent

Leasing All-Star; or any combination thereof (“California Class

Members”) (collectively, “Class Members”).

12. Settlement Class Members. “Settlement Class Members,” as




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6.

referenced herein, shall include Named Plaintiffs, all Opt-In Class Members; and all

California Class Members who are not also Opt-In Class Members (“California Non-

FLSA Class Members”) who do not properly opt out within thirty (30) days following

the date of the initial mailing of the Notice. For purposes of clarity, only California

Non-FLSA Class Members shall have the option to opt out. California Non-FLSA

Class Members who do not opt out of the Settlement will be deemed to release

Defendant from the Released Claims, as that term is defined in Paragraph 26.

(a) Class Counsel and Defense Counsel have agreed upon a list of all Opt-in

Class Members, which is attached to this Agreement as Exhibit A. For

purposes of this Agreement only, Defendant does not contest the validity of the

written consents filed by the Opt-in Class Members, the eligibility of the Opt-in

Plaintiffs to participate in the Settlement Case, or the right of the Opt-in Class

Members to participate in the settlement in accordance with the terms of this

Agreement.

(b) While some of the Opt-in Class Members who worked in

California are also technically California Class Members, they shall be subject

to the provisions of this Agreement pertaining to the Opt-in Class Members, not

those pertaining to the California Non-FLSA Class (e.g., they will not have the

ability to request exclusion from the settlement). Class Counsel and Defense

Counsel have agreed upon a list of California Non-FLSA Class Members,

which is attached as Exhibit B.

13. Settlement Period. The term “Settlement Period,” as referenced

herein, shall include the time period from January 1, 2011 to August 1, 2014.

III. TERMS OF THE SETTLEMENT 14. All claims, damages, or causes of action arising out of the

Settlement Case (as described in Paragraph 26) will be settled and compromised under

the terms and conditions set forth in this Settlement, as approved by this Court.




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7.

15. Settlement Amount. The Settlement Amount is defined as

follows: Defendant agrees to pay eight hundred thousand dollars ($800,000) (the “Settlement Amount”) to resolve the claims of the Settlement Class Members. The Settlement Amount will include all payments to be made to Settlement Class Members, Attorneys’ Fees and Costs approved by the Court, employees’ share of payroll taxes that Defendant is required to withhold as a matter of law, the Enhancement Award to Named Plaintiffs as the Class Representatives, and the PAGA payment. Defendant shall select the claims administrator to manage and administrate the Settlement proceeds set forth herein (the “Claims Administrator”) and shall incur any administrative cost associated with administration. Except as to the Claims Administrator costs and as set forth in Paragraph 22 below, Defendant shall not be liable for the payment of any amounts exceeding the Settlement Amount regardless of the nature of the payment.

16. Enhancement Award. Named Plaintiffs are to receive an

Enhancement Award as the Class Representatives, subject to Court approval, of up to

twenty-four thousand dollars ($24,000.00) (“Enhancement Award”) collectively. The

Enhancement Award will be allocated eight thousand dollars ($8,000.00) each to

Nicholas Selbe and Daniel Ghyczy and four thousand dollars ($4,000.00) each to

Makaela O’Connell and Anniya Louis.

17. PAGA Payment. Defendant agrees to pay five thousand dollars

($5,000) of the Settlement Amount to the LWDA within twenty (20) calendar days

after expiration of the time to file appeals or the resolution of any appeals filed with

the LWDA or in the class settlement proceedings if there is a timely objection to the

Settlement that is sustained by the Court, whichever is later.

18. Class Counsel’s Attorneys’ Fees and Costs. Class Counsel may

petition the Court for attorneys’ fees not to exceed thirty-three percent (33%) of the

Settlement Amount, including any interest, plus reasonable costs, subject to approval

by the Court. Attorneys’ fees paid pursuant to this Stipulation shall be inclusive of all

fees in the Settlement Case. The Parties agree that any reduction by the Court of




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8.

Class Counsel’s claimed attorneys’ fees and/or reasonable costs shall not be sufficient

grounds to void the Settlement.

19. Net Settlement Amount. The Settlement Amount minus Class

Counsel’s Attorneys’ Fees and Costs approved by the Court, the actual Enhancement

Award to Named Plaintiffs, and the PAGA Payment shall constitute the “Net

Settlement Amount.”

20. Defendant agrees to make payments (the “Class Member Payouts”)

to (1) Named Plaintiffs; (2) the Opt-In Class Members; and (3) the California Non-

FLSA Class Members who properly complete a Claim Form and return it to the

Claims Administrator in a timely manner pursuant to this Agreement (the “Qualified

Claimants”). Collectively, Named Plaintiffs, Opt-In Class Members and the Qualified

Claimants shall be referred to as “Qualified Settlement Class Members.” Class

Member Payouts shall be calculated based on the number of weeks worked pursuant

to Paragraph 21.

21. Settlement Class Member Payouts. Defendant agrees to make

payments to all Qualified Settlement Class Members. Defendant agrees to distribute

100% of the Net Settlement Amount (subject to tax withholding as addressed in

Paragraph 22) on a pro rata basis to all Qualified Settlement Class Members.

Defendant will advise Class Counsel of any check not cashed within One-Hundred

and Twenty (120) days of being issued and will cooperate with Class Counsel,

including issuing replacement checks. The Parties agree as follows:

Subject to the Minimum Share described below, the Net Settlement

Amount will be allocated on a pro rata basis to each Qualified

Settlement Class Member based upon his or her share of the aggregate

number of weeks worked during the Settlement Period under the

“Work for Rent” arrangement, as described in the FAC. Taking into

account the higher minimum wage, penalties, and limits on rent

credits in California, the Qualified Settlement Class Members shall




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9.

receive an adjusted multiplier of 1.1 for each week worked within the

state of California during the Settlement Period under the “Work for

Rent” arrangement. Qualified Settlement Class Members employed at

any time during the Settlement Period shall receive a minimum of

$100 (the “Minimum Share”).

22. Taxes. Defendant shall pay the employer’s share of any payroll

taxes, including, but not limited to, Medicare taxes, Social Security taxes, federal

unemployment taxes, state unemployment insurance taxes, and employment training

taxes. Otherwise, Settlement Class Members shall be responsible for the proper

payment of taxes on all Settlement Class Member Payouts except that all deductions

(including taxes on any payments attributable to wages) shall be deducted from any

Settlement Class Members Payout hereunder as required by law and paid from the Net

Settlement Amount. The Parties agree that the amount of monies attributable to

wages shall be thirty (30) percent of the pay-out of the Net Settlement Amount per

Qualified Settlement Class Member (which shall be reported on IRS Form W-2). The

balance of the pay-out of the Net Settlement Amount per Qualified Settlement Class

Member shall be attributed forty (40) percent to liquidated damages, penalties, and

interest (which shall be reported on an IRS Form 1099) and thirty (30) percent to a

non-taxable reimbursement of lodging expenses related to the “Work for Rent”

arrangement (which shall not be reported for tax purposes).

23. Class Size. The Settlement Amount (as defined in paragraph 15)

specifically contemplates a total class size of two hundred and four (204) Class

Members (“Class Size”). The Parties agree that any inaccuracy in the Class Size shall

not be sufficient grounds to void the Settlement or otherwise affect the Settlement,

including the Settlement Amount.

24. Defendant’s Option to Void. If there are twenty (20) or more

California Non-FLSA Class Members who opt out, Defendant will have the option, in

its sole discretion, to void the Settlement, within ten (10) business days of the close of




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10.

the class Claims Period.

25. Class Certification. The Parties agree to stipulate to class

certification of the class claims, for purposes of settlement only, for the class defined

above and related to the Released Claims.

IV. RELEASES 26. Released Claims. Upon final approval of the settlement, the

claims released by the Settlement Class Members will be the following claims against

the Released Parties, for work performed during the Settlement Period in any Covered

Position:

a. Any statutory claims for unpaid wages (including but not limited to overtime pay, minimum wage, and regular wages), and claims for interest, penalties, or premiums in connection therewith, as well as any claims under the California Labor Code, California Wage Orders, or the Fair Labor Standards Act ;

b. Any claims for injunctive relief, declaratory relief, restitution, fraudulent business practices or punitive damages alleged or which could have been alleged under the facts pleaded in the Lawsuit;

c. Any claims under PAGA arising out of the wage, hour and payroll practices alleged or which could have been alleged based upon the facts alleged in the Lawsuit; and

d. Any and all other claims under California common law, the California Labor Code, California Wage Orders, the California Business and Professions Code, and the Fair Labor Standards Act asserted in or that could have been asserted based upon the facts alleged in the Lawsuit.

e. In addition, as to the claims of Nicholas Selbe, Daniel Ghyczy, Makaela

O’Connell, and Anniya Louis, the Released Claims further include, without limitation, any and all claims whatsoever regarding the Named Plaintiffs’ employment and/or the termination of their employment with Defendant and/or any of the Released Parties including, but not limited to, any claims for wages, bonuses, severance pay, employment benefits, stock options, violation of any personnel policy, any claims based on discrimination, harassment, unlawful retaliation, violation of public policy, or damages of any kind whatsoever, arising out of any common law torts, contracts,




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11.

express or implied, any covenant of good faith and fair dealing, any theory of wrongful discharge, any theory of negligence, any theory of retaliation, any legal restriction on Defendant’s right to terminate the employment relationship, or any federal, state, or other governmental statute, executive order, regulation or ordinance, or common law, or any other basis whatsoever, to the fullest extent provided by law.

The claims set forth in subparagraphs (a)-(e) hereinabove shall be collectively referred

to as the “Released Claims.”

As further consideration of the full release provided only by the Named

Plaintiffs, Defendant agrees that in response to any request for an employment

reference with respect to any Named Plaintiff, Defendant will only confirm that the

Named Plaintiff was employed by Defendant and, otherwise, will state words to the

effect that it is Defendant’s policy not to provide substantive employment references

or to provide information regarding the circumstances under which a former

employee’s employment was concluded.

27. NAMED PLAINTIFFS’ SECTION 1542 WAIVER. Named

Plaintiffs shall be deemed to have, and by operation of the Final Judgment shall have,

expressly waived and relinquished to the fullest extent permitted by law the

provisions, rights, and benefits of Section 1542 of the California Civil Code, or any

other similar provision under federal or state law that purports to limit the scope of a

general release. Named Plaintiffs, for themselves, have read Section 1542 of the Civil

Code of the State of California, which provides as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

Named Plaintiffs understand that Section 1542 gives Named Plaintiffs the right not to

release existing claims of which Named Plaintiffs are not now aware, unless Named

Plaintiffs voluntarily choose to waive this right. Having been so apprised, Named




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Plaintiffs nevertheless voluntarily waive the rights described in Section 1542, and

elect to assume all risks for claims that now exist in Named Plaintiffs’ favor, known

or unknown. Named Plaintiffs’ release of their claims as set forth in this paragraph is

a condition precedent to enforcement of this Settlement Agreement.

28. Settlement Class Members will be deemed to release the Released

Parties from the Released Claims, as that term is defined in the above Paragraph 26.

For purposes of clarity, Paragraph 26(e) shall apply only to the Named Plaintiffs.

29. The parties will request that the Court enjoin Settlement Class

Members from filing any DLSE/DOL claims, or from initiating other proceedings,

regarding Released Claims by this Settlement pending final approval of the Settlement

Agreement by the Court.

V. NOTICE TO THE CLASS MEMBERS AND THE CLAIMS PROCESS

FOR CALIFORNIA NON-FLSA CLASS MEMBERS

30. Notice and Claim Form. The notice (“Notice”) is agreed upon by

the Parties and attached hereto as Exhibit C for Opt-in Class Members and Exhibit D

for California Non-FLSA Class Members, and is to be approved by the Court. The

Notice clearly identifies the nature of the Settlement and the method of allocation of

Settlement Class Member Payouts and the specific terms of release agreed upon by

the Parties. The claim form (“Claim Form”), attached hereto as Exhibit E is agreed

upon by the Parties and is to be approved by the Court and sent to California Non-

FLSA Class Members.

The notice includes: (1) contact information for Class Counsel to answer

questions; (2) the address for a website, maintained by the Claims Administrator or

Class Counsel, that has links to the Notice, motions for approval and for attorneys'

fees and any other important documents in the case; (3) instructions on how to access

the case docket via PACER or in person at any of the Court’s locations. The Notice

states the date of the final approval hearing and clearly states that the date may change

without further notice to the class. The notice advises Class Members to check the




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settlement website or the Court’s PACER site to confirm that the date has not been

changed.

31. Claims Administrator. Defendant has the right to select the

claims administrator to manage and administrate the Settlement proceeds set forth

herein (the “Claims Administrator”) and shall incur any administrative cost associated

with administration. Solely for purposes of this Settlement, the Parties stipulate and

agree Simpluris shall be retained to serve as Claims Administrator.

32. The Claims Administrator shall be responsible for printing and

mailing the Notice to the Class Members and the printing and mailing of Claims

Forms to the California Non-FLSA Class Members; sending supplemental notices by

email for Class Members whose emails are provided to the Administrator collectively

by the Parties; making the payments in accordance with the terms and provisions of

this Agreement; calculating and paying any and all payroll tax deductions to be

withheld from gross Settlement Class Member Payouts as required under this

Agreement and applicable law; keeping track of and maintaining an accurate record of

requests for exclusion from the Class; providing weekly status reports to the Parties’

counsel; providing a due diligence declaration for submission to the Court prior to the

final approval hearing; mailing Settlement Class Member Payout checks to Qualified

Settlement Class Members; printing and providing Qualified Settlement Class

Members with W-2 and 1099 forms as required under this Agreement and applicable

law; providing a due diligence declaration for submission to the Court upon the

completion of the Settlement; and for such other tasks as the Parties mutually agree or

the Court orders the Claims Administrator to perform. The Parties each represent they

do not have any financial interest in the Claims Administrator or otherwise have a

relationship with the Claims Administrator that could create a conflict of interest.

33. Class List. Class Counsel will provide to counsel for the

Defendant the name and address of Named Plaintiffs and each of the Opt-In Class

Members. Defendant will use that information and add to it: (1) the name, and last




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known address of all California Non-FLSA Class Members; (2) the social security

number of all Class Members; and (3) the start and end dates for each period during

the Class Period that Class Members were employed by Defendant (“Class List”).

Defendant will provide the Class List to Class Counsel with Social Security Numbers

and the addresses for California Non-FLSA Class Members redacted. Class Counsel

and counsel for the Defendant will cooperate to resolve any discrepancies in the Class

List. Defendant will then provide the final Class List in the form of a database to the

Claims Administrator, within fourteen (14) calendar days of preliminary approval by

the Court of this Stipulation. The Claims Administrator will keep the Class List

confidential. Other than as set forth above, the Class List will not be released to Class

Counsel. The Claims Administrator will then send each Class Member a Notice, and

each California Non-FLSA Class Member a Claim Form, via first class, U.S. mail or

its equivalent, and, where an electronic mail address is available, by email.

34. If a Notice is returned because of an undeliverable address, the

Claims Administrator shall conduct a skip trace to locate a correct address. One

supplemental Notice will be mailed to each Class Member whose Notice is returned to

the Claims Administrator. California Non-FLSA Class Members who are issued a

second Notice because of an undeliverable address will be granted thirty (30) days

from the re-issuance of the Notice to respond, or until the end of the Claims Period, as

described in Paragraph 35, whichever is later. For purposes of clarity, Opt-In Class

Members shall not be required to provide any response to the Notice.

35. Claims Period. Except as described in Paragraph 34, California

Non-FLSA Class Members will have sixty (60) calendar days from the mailing of the

Notice and Claim Form to submit their claim (the “Claims Period”) and/or dispute the

number of weeks worked during the Class Period as an All-Star. Class Members who

wish to object to the Settlement, will have thirty (30) calendar days from the mailing

of the Notice to file with the Court their objection and, in the case of California Non-

FLSA Class Members, thirty (30) days as well to elect to opt out of the California




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state law portion of the class action. The Opt-In Class Members will be deemed to

have made a claim and do not need to submit a Claim Form. The Parties agree that if

any Class Member objects to the Settlement or disputes the basis for determining their

share of the Net Settlement Amount, absent clear evidence to establishing otherwise,

Defendant’s records shall presumptively control. The Parties further agree that any

dispute that cannot be resolved by Class Counsel and Defendant’s counsel may be

brought before the Court before final approval of the Settlement.

36. Objections. Any Class Member may object to the Settlement, or

any portion thereof, by filing a written objection, and supporting papers they wish to

have considered, if any, with the Clerk of the United States District Court, Northern

District, 450 Golden Gate Avenue, Box 36060, San Francisco, CA 94102-3489. To

be valid and effective, any objection to approval of the Settlement must be filed with

the Clerk of the Court, postmarked no later than thirty (30) calendar days from the

mailing of the Notice. A written objection must contain the objecting person’s full

name, and current address, and include all objections and the reasons therefor, and

include any and all supporting papers (including, without limitation, all briefs, written

evidence, and declarations) that the objecting person wishes to have considered. A

Class Member who desires to object but who fails to comply with the objection

procedure set forth herein shall be deemed to have not objected.

37. If a Class Member wishes to appear at the final approval hearing

and present his or her objection to the Court orally, the objector’s written objection

must include the objector’s statement of intent to appear at the final approval hearing.

Only Class Members who specify in their objections that they intend to present

objections orally at the final approval hearing shall have the right to present their

objections orally at the final approval hearing. Any Class Member who does not

timely submit a written objection shall not be permitted to present his or her

objections at the final approval hearing. Any California Non-FLSA Class Member

who files an objection remains eligible to submit a Claim Form, if applicable, and




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receive monetary compensation from the settlement.

38. Exclusions\Opt Outs. If a California Non-FLSA Class Member

first requests exclusion from, and opts out of, the Settlement and then objects, the

objection will not be considered valid. A California Non-FLSA Class Member who

objects and then requests exclusion from, and opts out of the Settlement, will be

deemed to have waived his or her objection.

Any California Non-FLSA Class Member who wishes to opt out of the

Settlement may request exclusion by submitting a signed request for exclusion to the

Claims Administrator. To be effective, such request for exclusion must include the

individual’s name and an unequivocal statement that the individual requests to be

excluded from the class, and it must be received by the Claims Administrator within

thirty (30) days following the date of the initial mailing of the Notice (this 30-day

period shall be referred to herein as the “Opt Out Period”). The Claims Administrator

shall deliver copies of each request for exclusion to Class Counsel and Defense

Counsel not later than five (5) business days after receipt thereof. Class Counsel shall,

within ten (10) business days of the end of the Opt Out Period, file with the Clerk of

Court copies of all requests for exclusion so received. All California Non-FLSA

Class Members who do not request exclusion shall be deemed Settlement Class

Members.

39. Deficiencies and Cure. Within three (3) business days of receipt

by the Claims Administrator of each deficient timely-submitted Claim Form from a

California Non-FLSA Class Member, the Claims Administrator will send a deficiency

notice to the California Non-FLSA Class Member to correct any irregularities in the

completed Claim Form or provide necessary clarification of intent. The deficiency

notice will provide the applicable California Non-FLSA Class Member no more than

ten (10) calendar days from the mailing of the deficiency notice to postmark a written

response to cure all deficiencies. The failure of a California Non-FLSA Class

Member to timely submit a Claim Form, or timely submit a response to any deficiency




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notice, shall invalidate a claim and will not be considered deficiencies subject to cure.

The failure of a California Non-FLSA Class Member to sign a Claim Form will be

considered a deficiency subject to cure.

40. Final Approval Hearing. The final approval hearing will be set

within thirty (30) calendar days of the closing of the Claims Period, or as soon as the

Court is available. Upon final approval, and the expiration of any appeal period or if

there is an appeal, the resolution of any appeal upholding the final approval, the

Defendant shall have twenty (20) calendar days to pay the Claims Administrator the

total funds required to fully fund the Settlement Amount (i.e., the total of all

Settlement Class Member Payouts, any Class Representative Enhancement Payment

awarded by the Court, Class Counsel’s Attorneys’ Fees and Costs awarded by the

Court, and the PAGA payment) to an escrow account set up by the Claims

Administrator and authorize the payments due to Named Plaintiffs, the Settlement

Class Members, Class Counsel, and the LWDA.

41. Discharge of Obligations: Defendant shall fully discharge its

obligations to the Class Members through the remittance of the Settlement Amount to

the Claims Administrator as set forth in Paragraphs 15 and 40 above, regardless of

whether checks representing individual settlement sums are actually received and/or

negotiated by Settlement Class Members. Once Defendant has complied with the

obligations set forth in Paragraphs 15 and 40, above, it will be deemed to have

satisfied all terms and conditions under this Settlement Agreement, shall be entitled to

all protections afforded to them under this Settlement Agreement, and shall have no

further obligations under the terms of the Settlement Agreement regardless of what

occurs with respect to those sums. The Claims Administrator will cooperate with

Class Counsel by advising Class Counsel of uncashed checks and will cancel and

reissue uncashed checks upon request by Class Counsel. Any check that is not

negotiated within one year of the original mailing to a Settlement Class Member will

be paid to the unclaimed property fund of the state in which such Settlement Class




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Member worked for Defendant.

VI. TERMINATION Subject to the obligation(s) of mutual full cooperation set forth in

Paragraphs 44 through 46, either Party may terminate this Settlement if any Court

declines to enter the preliminary approval Order, the final approval Order, or final

judgment in substantially the form submitted by the Parties, or if the Settlement as

agreed does not become final because of final appellate court action. The terminating

Party shall give to the other Party (through its counsel) written notice of its decision to

terminate no later than ten (10) calendar days after receiving notice that one of the

enumerated events has occurred. Termination shall have the following effects:

a. The Memorandum of Understanding and the Settlement Agreement shall be terminated and shall have no force or effect, and no Party shall be bound by any of its terms.

b. In the event the Settlement is terminated, Defendant shall have no obligation to make any payments to any party, class member or attorney.

c. The Preliminary Approval Order, Final Approval Order and final judgment, including any order of class certification, shall be vacated.

d. The Settlement and all negotiations, statements and proceedings relating thereto shall be without prejudice to the rights of any of the Parties, all of whom shall be restored to their respective positions prior to the Settlement.

e. Except as otherwise discoverable, neither the Memorandum of

Understanding not this Settlement Agreement, nor any ancillary documents, actions, statements or filings in furtherance of settlement (including all matters associated with the mediation) shall be admissible or offered into evidence in the Lawsuit or any other action for any purpose whatsoever.

VII. NO PUBLIC DISCLOSURE

Named Plaintiffs, Defendant, and Class Counsel will not make any public

disclosure of the Settlement until after the filing of the Application for Preliminary

Approval of the Settlement. Named Plaintiffs, Defendant, and Class Counsel

represent that they have not made any such disclosure. The foregoing shall not




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preclude Named Plaintiffs or Class Counsel from advising Class Members regarding

this Settlement. Notwithstanding the foregoing, the Parties agree that Defendant may

make such disclosures that in Defendant’s judgment are required in the ordinary

course of business, except that Defendant and its counsel shall not encourage Class

Members to opt out. Nor shall Named Plaintiffs and Class Counsel encourage Class

Members to opt out. Thereafter, Class Counsel and Named Plaintiffs agree not to

publicize the terms of this Settlement with the media, including but not limited to, any

newspaper, journal, magazine, website and/or on-line reporter of settlements.

VIII. DUTIES OF THE PARTIES PRIOR TO COURT APPROVAL

42. Named Plaintiffs will apply to the Court via a motion for

preliminary approval of Class action settlement for a determination of the fairness,

adequacy, and reasonableness of the proposed settlement. Named Plaintiffs shall

apply to the Court for the entry of a preliminary order substantially accomplishing the

following:

a. Scheduling a fairness hearing on the question of whether the Settlement,

including the amount of Class Counsel Attorneys’ Fees and Costs and the

Enhancement Awards, should be approved as fair, reasonable and adequate

as the Settlement Class Members;

b. Conditionally certifying a provisional Class in accordance with this

Stipulation (for the purposes of settlement only);

c. Approving as to form and content the proposed Notice;

d. Approving as to form and content the proposed Claim Form;

e. Directing the mailing of the appropriate Notice to all Class Members and

Claim Forms to California Non-FLSA Class Members by first class mail

and, where an electronic mail address is available, by email;

f. Preliminarily approving the Settlement subject only to the Objections of

Class Members and final review by the Court; and

g. Submission of a draft Order and Final Judgment for comment by the Court.




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IX. DUTIES OF THE PARTIES FOLLOWING FINAL COURT

APPROVAL

43. Following final approval by the Court of the settlement provided

for in this Stipulation, Class Counsel will submit a proposed Order and Final

Judgment:

a. Approving the Settlement, adjudging the terms thereof to be

fair, reasonable and adequate, and directing consummation

of its terms and provisions;

b. Approving the amount of Class Counsel Attorneys’ Fees and

Costs and the Enhancement Awards;

c. Entering the Court’s Order and Final Judgment, permanently

barring all Settlement Class Members from prosecuting any

of the Released Claims released in this Stipulation against

Defendant and the Released Parties; and

d. Upon entry of the Order and Final Judgment, the Court will

retain jurisdiction to enforce the Settlement.

X. MUTUAL FULL COOPERATION 44. The Parties agree to fully cooperate with each other to accomplish

the terms of this Stipulation, including but not limited to, execution of such documents

and to take such other action as may reasonably be necessary to implement the terms

of this Stipulation. The Parties to this Stipulation shall use their best efforts, including

all efforts contemplated by this Stipulation and any other efforts that may become

necessary by order of the Court, or otherwise, to effectuate this Stipulation and the

terms set forth herein. As soon as practicable after execution of this Stipulation, Class

Counsel shall, with the assistance and cooperation of Defendant and its counsel, take

all necessary steps to secure the final approval of this Stipulation from the Court.

45. Defendant agrees that its counsel shall be obligated to cooperate in

the drafting of all pleadings necessary to obtain preliminary and final approval of the




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settlement described in this Stipulation, and effectuation of the Settlement. Class

Counsel must review and approve all such documents.

46. Henceforth, the Parties agree that they will not attempt to

discourage Settlement Class Members from filing claims or encourage them to object

to or opt out of the settlement.

XI. NO PRIOR ASSIGNMENTS 47. The Parties hereto represent, covenant, and warrant that they have

not directly or indirectly, assigned, transferred, encumbered, or purported to assign,

transfer, or encumber to any person or entity any portion of any liability, claim,

demand, action, cause of action or rights herein released and discharged except as set

forth herein.

XII. ENFORCEMENT ACTIONS 48. In the event that one or more of the Parties to this Stipulation

institutes any legal action, arbitration, or other proceeding against any other Party or

Parties to enforce the provisions of this Stipulation or to declare rights and/or

obligations under this Stipulation, each party shall bear their own attorneys’ fees and

costs. In addition, prior to bringing any claim to enforce the provisions of this

Stipulation or to declare rights and/or obligations under this Stipulation, the dispute

must be mediated before Michael E. Dickstein, Esq. or a mediator agreed upon by the

Parties, provided that the absent of agreement as to a mediator shall not bar any Party

from pursuing legal action.

XIII. NOTICES 49. Unless otherwise specifically provided herein, all notices, demands

or other communications required by this Stipulation shall be in writing and shall be

deemed to have been duly given as of the third business day after mailing by United

States first class mail, addressed as follows:

a. To Settlement Class Members: To the last known address of

the Settlement Class Member(s) in question.




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b. To Defendant: Littler Mendelson, P.C. Elizabeth Stagg-Wilson 633 West Fifth Street 63rd Floor Los Angeles, CA 90071 (213) 443.4300

c. To Named Plaintiffs: David, Kamp & Frank, L.L.C. Joshua M. David 739 Thimble Shoals Boulevard, Suite 105 Newport News, VA 23606 (757) 595-4500

XIV. NO ADMISSION 50. Nothing contained herein nor the consummation of this Stipulation

is to be construed or deemed an admission of liability, culpability, negligence, or

wrongdoing on the part of Defendant or any of the Releasees. Each of the Parties

hereto has entered into this Stipulation with the intention to avoid further disputes and

litigation with the attendant inconvenience and expenses.

XV. NO ADMISSIBILITY. Except as otherwise discoverable, neither this Settlement Agreement nor

any ancillary documents, actions, statements or filings in furtherance of settlement

(including all matters associated with the mediation) shall be admissible or offered

into evidence in the Settlement Case or any other action for any purpose whatsoever.

XVI. CONSTRUCTION 51. The Parties hereto agree that the terms and conditions of this

Stipulation are the result of lengthy, intensive arm’s length negotiations between the

Parties and that this Stipulation shall not be construed in favor of or against any party

by reason of the extent to which any Party or his, her or its counsel participated in the




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drafting of this Stipulation.

XVII. CAPTIONS AND INTERPRETATIONS 52. Paragraph, titles or captions contained herein are inserted as a

matter of convenience and for reference, and in no way define, limit, extend, or

describe the scope of this Stipulation or any provision hereof. Each term of this

Stipulation is contractual and not merely a recital.

XVIII. MODIFICATION 53. This Stipulation may not be changed, altered, or modified, except

in writing and signed by the Parties hereto, and, if required, approved by the Court.

This Stipulation may not be discharged except by performance in accordance with its

terms or by a writing signed by the Parties hereto.

XIX. PARTIES’ AUTHORITY The signatories hereto hereby represent that they are fully authorized to

enter into this Stipulation and bind the Parties hereto to the terms and conditions

hereof.

XX. INTEGRATION CLAUSE 54. This Stipulation contains the entire agreement between the Parties

relating to the settlement and transaction contemplated hereby, and all prior or

contemporaneous agreements, understandings, representations, and statements,

whether oral or written and whether by a party or such party’s legal counsel, are

merged herein. No rights hereunder may be waived except in writing.

XXI. BINDING ON ASSIGNS 55. This Stipulation shall be binding upon and inure to the benefit of

the Parties hereto and their respective heirs, trustees, executors, administrators,

successors and assigns.

XXII. CLASS COUNSEL SIGNATORIES 56. It is agreed that because the Settlement Class Members are so

numerous, it is impossible or impractical to have each Settlement Class Member



LITTLER MENDELSON, P.C.633 West 5th Street

63rd FloorLos Angeles, CA 90071

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28FLSA COLLECTIVE ACTIONCLASS ACTION COMPLAINT (NO. 3:14-CV-3238-JSC)

24.

execute this Stipulation. The Notice will advise all Settlement Class Members of the

binding nature of the Release and such shall have the same force and effect as if this

Stipulation were executed by each Settlement Class Member.

XXIII. COUNTERPARTS57. This Stipulation may be executed in counterparts, and when each

party has signed and delivered at least one such counterpart, each counterpart shall be

deemed an original, and, when taken together with other signed counterparts, shall

constitute one Stipulation, which shall be binding upon and effective as to all Parties.

XXIV. CONTINUING JURISDICTION OF THE COURT 58. The Parties agree that upon final approval by the Court, this

Stipulation shall be enforceable by the Court, and the Court shall retain exclusive and

continuing equity jurisdiction of this action over all Parties and Settlement Class

Members to interpret and enforce the terms, conditions, and obligations set forth in

this Stipulation.

PARTIES:

Dated:Nicholas Selbe

Dated:Daniel Ghyczy

Dated:Makaela O’Connell


November 12, 2015



Exhibit A To Settlement Agreement

Opt-In Class Members


Firmwide:137072147.1 068943.1006

Exhibit A Opt-In Class Members

Id First Name Last Name

4874 Zachary Adams 4411 Alejandro Alaniz 4885 Joshua Allen 4082 Stephond Allmond 4654 Breanna Appling 3230 Ryan Arthur 4423 Thomas Ashman 2918 Rolando Aviles 6053 Myra Bamburg 4354 Cicero Beemon 4908 Travis Bennett 4182 Courtney Blunt 4204 Mariah Bones 6209 Lonicia Bowie 4072 Lauren Breeden 3989 Amber Brimfield 6176 Krysten Brooks 3160 Jonathan Brown 3861 Donearl Brown 4972 Alaysia Brown 4733 Kimbery Cano 4353 Ross Carpenter 3901 Kendall Caver 3725 Daniel Chambers 4805 Christine Chop 3916 Lameka Clayborn 5008 Celia Coats 3944 Stephanie Cole 3913 Patricia Cooper 4384 Jessica Cothron 3701 Kara Creed 3899 Tyler Damiano 3458 Tiara Davis 4255 Diana Dejesus 3369 Alexandria Demming 4457 Amanjot Dhillon 4168 Cameron Dobrinski 3527 Donto Dockett


Firmwide:137072147.1 068943.1006

4490 Deandre Dubuche 3838 Kimberly Eikenberg 4712 Emily Evans 4449 Elle Farrell 425437 Rodrigo Fernandez 5095 Andrew Fletcher 4797 Travon Foreman 3953 Branden Gaddis 3683 Matthew Garrigan 4643 Nora Germain 4638 Daniel Ghyczy 4547 Jeffrey Gibbons 4086 Catherine Gibson 4002 Scott Girdler 4487 Tyler Glenn 6083 Alejandro Gonzalez 3712 William Grandstaff 4003 Emily Grimes 4474 Aaron Grissom 4383 Martell Harris 6135 Danielle Harrolle 4435 Aigner Hart 4494 Kala Herbert 4424 Meagan Herring 4506 Renee Howard 3981 Alexis Huggins 4633 Joey Hughes 3893 Kari Irby 3822 Tiffany Jackson 4321 Jillian Jacob 3069 Lakendra Jefferson 4996 Kristan Jennings 3987 Amber Johnson 4484 Maleesha Johnson 4306 Alexandria Jones 425409 Athena Karfitsas 4968 Nicole Ketelaar 4275 Ryan Kline 3782 Jayme Kolbo 4512 Logan Kramer 4183 Raven Kyles


Firmwide:137072147.1 068943.1006

4672 Vincent Larry 4476 Ronald Larson 3460 Erica Leitner 3757 Lyndsi Lopez 6063 Jacob Lopez 4634 Anniya Louis 4155 Bryttani Luna 4295 Landis Lyons 4026 Ryan Manshack 6034 Karalyn Marlin 3857 Adrian Martinez 3874 Jennifer Martinez 4057 Jessica Martinez 4748 Andrea Martinez 6151 William Mayfield 4510 Devin Mcglothan 4924 Deana Mcmurray 4325 John Miyazono 3954 Danielle Moffitt 4064 Brittany Morris 8055 Kasono Mwanza 3985 Makayla Myers 6119 Sarina Natera 4846 Dawana Neal 4098 Kathryn Newman 4429 Alexis Newman 4300 Samuel Nzewi 4752 Makaela O'connell 425413 Michael Parler 4837 Shelby Pearson 3539 Christopher Pentz 3856 Heather Perry 4104 Audiesha Perry 6185 Megan Perry 3571 Issac Phillips 4223 Rachel Pond 4831 Qahir Popat 6339 Shaquille Prather 4636 Eric Reza 4401 Delano Richardson 4639 Heather Riley


Firmwide:137072147.1 068943.1006

3554 Deonte Ringer 3937 Michael Roberts 4339 Sean Roberts 3536 Jacqueline Rodriguez 4647 David Rodriguez 3734 Amanda Roel 3823 Courtney Ross 4212 Victoria Rowe 4706 Scarlett Royston 3755 Sierra Ruiz 4051 Marvin Sanchez 6038 Chelsea Sarikas 4499 Tyler Schramel 4293 Austin Schwenker 4402 Jarvis Scruggs 4603 Nicolette Seifert 4641 Nicholas Selbe 4635 Romeet Sen 4750 Amil Shah 4950 Taylor Shaw 4249 Rachel Shumpert 4678 Anna Skellenger 3862 Amanda Smith 4594 Alden Spooner 3936 Jordan Summons 6181 Vito Sunoto 6271 Anthony Tabanji 4646 Markessa Tadesse 3878 Thipkesorn Thepwannakul 3762 Quachae Thomas 4644 Omar Toubat 4239 Laurence Treadaway 3647 Brian Vanscoyk 3850 Erin Vierra 4123 Bailey Viestenz 3831 Megan Vliet 3955 Giana Waller 4640 Frances Wang 4751 Brett Ward 6050 Lewis Watson 2859 Brittany Wheeler


Firmwide:137072147.1 068943.1006

4666 Nelson Wheeler 3834 Allison Wills 3839 Tiffaney Wilson 3559 Rachael Wolfe 4153 Chase Yanzer 3952 Stacy Young 4991 Stephanie Zeidan 4211 Gabriella Zundt


Exhibit B To Settlement Agreement

California Non-FLSA Class Members


Firmwide:137072147.1 068943.1006

Exhibit B California Non-FLSA Class Members

Id First

Name Last Name 3851 Guillermo Arzu 4922 Chelsea Baer 4642 Bess Benhamou 4637 Lauren Bergold 4049 Michael Bowman 3891 Alfredo Carillo 4905 Wendy Chuong 4660 Brielle Fisher 4395 Ryan Friedman 4629 Timothy Hill 3827 Amanda Kuns 3173 Isaiah Lucas 4016 Channelle Mcnutt 4050 Tyre Miles 4854 Jon Morehouse 4957 Divya Nair 4866 Gautam Pandit 3892 Mauricio Ponce De Leon 3894 Misty Rogers 3828 Luis Rosales 4645 Jesse Sanchez 6193 Emily Tat 4907 Kaitlin Williamson 3638 Aunnalise Woods 4906 Courtnie Yun

3826 Antonio Figueroa Palomarez 6236 Matthew Deligio

4496 John Ghandour

5073 Marcela Hurtado

6190 Khatera Karzai

4881 Jin Woo Lim

5316 Storm Niusila

6368 Torin Ortiga

4859 Michael Rodriguez

6235 Isha Vaswani


Exhibit C To Settlement Agreement

Notice for Opt-In Class Members




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TO: All persons who have submitted a “Consent to Join Collective Action” in the Lawsuit named Nicholas Selbe v. Peak Campus Management, LLC prior to June 1, 2015 who were employed in any of the following positions: All-Star; Community Advisor; Community Assistant; Leasing All-Star; Work for Rent Leasing All-Star; or any combination thereof.

PLEASE READ THIS NOTICE CAREFULLY. Pursuant to the settlement of the parties and order of the United States District Court of the Northern District of California, entered [date court approved settlement], YOU ARE HEREBY NOTIFIED AS FOLLOWS: A settlement has been reached between the parties in the lawsuit pending in the United States District Court for the Northern District of California on behalf of the following class, which has been provisionally certified for purposes of this settlement: The settlement proposes the following class:

All persons who have submitted a “Consent to Join Collective Action” in the instant Lawsuit prior to June 1, 2015 (“Opt-In Class Members”) and all individuals employed in the State of California between January 1, 2011 and August 1, 2014 who were employed in any of the following positions: All-Star; Community Advisor; Community Assistant; Leasing All-Star; Work for Rent Leasing All-Star; or any combination thereof (“California Class Members”).

The class set forth above shall be referred to as the “Class Members.” All Class Members entitled to participate in the settlement shall be referred to herein as “Settlement Class Members.” You have received this notice because records indicate that you worked within the time period identified for Peak Campus Management, LLC and that you are an Opt-In Class Member. This notice is designed to advise you of this settlement and how to object to the settlement.

I. BACKGROUND OF THE CASE

Plaintiffs Nicholas Selbe, Daniel Ghyczy, Makaela O’Connell, and Anniya Louis (“Plaintiffs”) filed a Complaint against Peak Campus Management, LLC (“Defendant”) in the Northern District of California on July 17, 2014 on behalf of persons working in non-exempt positions under a “work for rent” arrangement at all of Defendant’s locations in the country. Plaintiffs filed an Amended Complaint on February 10, 2015. Plaintiffs allege on behalf of themselves and all non-exempt employees in the position of All-Star; Community Advisor; Community Assistant; Leasing All-Star; Work for Rent Leasing All-Star; or any combination thereof, claims under the Fair Labor Standards Act, the California Labor Code, the California Business and Professions Code and California Wage Orders for failure to pay minimum wage, failure to pay wages due at the time of termination and failure to provide accurate wage statements and maintain required records, violation of the Private Attorney General Act, as well as unlawful business practices.

Through this action, the named Plaintiffs, on behalf of themselves and all others similarly situated, seek damages, restitution, pre- and post-judgment interest,




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declaratory relief, penalties, costs, attorneys’ fees and any further relief deemed appropriate by the Court against Defendant.

Defendant contends that Plaintiffs and the putative class members were properly paid all wages and compensation owed and deny all alleged wrongdoing associated with these and all other claims. Defendant further contends that since the putative class members were properly compensated, the remainder of the claims are also without merit. Defendant, therefore, disputes all claims for damages and other relief made by Plaintiffs and also disputes that the lawsuit is appropriate for class action treatment. Further, the Court has not stated or determined that Defendant did anything wrong.

This Settlement will act as the full and final resolution this Lawsuit, Selbe, et al. v. Peak Campus Management, LLC Case No. 3:14-cv-3238-MMC as well as all claims asserted therein. This case will be referred to as the “Settlement Case” or the “Lawsuit.”

The Class Representatives will be Plaintiffs Nicholas Selbe, Daniel Ghyczy, Makaela O'Connell, and Anniya Louis. Law Firms David, Kamp & Frank, L.L.C. and Kingsley & Kingsley, APC, have been approved by the Court as “Class Counsel.” Class counsel can be contacted as follows to answer questions:

Joshua M. David [email protected] Nicholas A. Nunes [email protected] DAVID, KAMP & FRANK, L.L.C. 739 Thimble Shoals Blvd., Suite 105 Newport News, VA 23606 (757) 595-4500 (phone) (757) 595-6723 (facsimile)

Defendant is represented in this action by Elizabeth Staggs Wilson, Shannon Boyce, and Fatemeh Mashouf of Littler Mendelson, P.C., 633 West Fifth Street, 63rd Floor, Los Angeles, California 90071.

Class Counsel believes that further proceedings in this case, including a trial and probable appeals, would be very expensive and protracted. No one can confidently predict how the various legal questions at issue, including the amount of damages, would ultimately be resolved. Therefore, upon careful consideration of all of the facts and circumstances of this case, Class Counsel believes that the proposed settlement is fair, reasonable and adequate. II. SUMMARY OF THE PROPOSED SETTLEMENT

The Class Representatives and Class Counsel support this settlement. Among the reasons given for support includes the inherent risk of trial on the merits and the delays associated with litigation.

The settlement provides for the following:

A. Settlement Formula

Defendant agrees to pay eight hundred thousand dollars ($800,000.00) (the “Settlement Amount”) to resolve the claims of the Settlement Class Members. The Settlement Amount will include all payments to be made to Settlement Class




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Members, Attorneys’ Fees and Costs approved by the Court, employees’ share of payroll taxes that Defendant is required to withhold as a matter of law, the Enhancement Award to Plaintiff as the Class Representative and the PAGA payment.

The Settlement Amount minus Class Counsel’s Attorneys’ Fees and Costs approved by the Court, the actual Enhancement Award to Plaintiff, the PAGA Payment, and the employees’ share of payroll taxes that Defendant is required to withhold as a matter of law, shall constitute the “Net Settlement Amount.” Defendant agrees to distribute one-hundred percent (100%) of the Net Settlement Amount less any deductions required by law to all Class Members who do not opt-out on a pro rata basis based upon the number of weeks worked under the “Work for Rent” arrangement.

In allocating the Net Settlement Amount, the settlement takes into account the higher hourly rates, minimum wage, penalties and limits on rent credits for California Class Members.

For weeks in which a Settlement Class Member worked in California under the “Work for Rent” arrangement, the Settlement Class Member shall be allocated the equivalent of one and one tenth weeks for every such week worked. Settlement Class Members shall receive a minimum of $100.

B. Calculations

Defendant’s records will be determinative with respect to the number of weeks you worked in each position unless you dispute those records by making an objection as provided below.

C. Release

As described in detail below, this settlement releases Defendant and all related or affiliated entities from any and all claims that were brought, or could have been brought, relating to or arising out of the claims asserted in the Settlement Case as follows: (a) Any statutory claims for unpaid wages (including but not limited to overtime pay, minimum wage, and regular wages), and claims for interest, penalties, or premiums in connection therewith, as well as any claims under the California Labor Code, California Wage Orders, or the Fair Labor Standards Act alleged or which could have been alleged under the facts pleaded in the complaints filed as part of the Settlement Case; (b) Any claims for injunctive relief, declaratory relief, restitution, fraudulent business practices or punitive damages alleged or which could have been alleged under the facts pleaded in the complaints filed as part of the Settlement Case; (c) Any claims under the California Private General Attorney Act (“PAGA”) arising out of the wage, hour and payroll practices alleged or which could have been alleged under the facts pleaded in the complaints filed as part of the Lawsuit; and (d) Any and all other claims under California common law, the California Labor Code, California Wage Orders, the California Business and Professions Code, and the Fair Labor Standards Act asserted in or that could have been asserted under the facts pleaded in the complaints filed as part of the Settlement Case.

D. Class Representatives

The Class Representatives shall be Nicholas Selbe, Daniel Ghyczy, Makaela O’Connell, and Anniya Louis. The Class Representatives shall apply to the Court for enhancement payments in such amount as the Court determines to be fair and reasonable, at the time of the Final Approval Hearing. The parties’ preliminary agreement proposed a payment of $4,000.00-$8,000.00 for each Class Representative




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with all enhancement payments totaling $24,000.00. This amount is considered by the parties to be fair, reasonable and adequate given the time expended by the Class Representatives, the risks associated with being Class Representatives, the fear of retaliation suffered by the Class Representatives, and the Class Representatives’ agreement to waive all claims against Defendant.

E. Attorneys’ Fees

Class Counsel will petition the Court for attorneys' fees not to exceed 33%of the Net Settlement Amount (equating to $264,400.00), plus reasonable costs, all subject to approval by the Court.

F. PAGA Payment

Defendant agrees to pay $5,000 of the Settlement Amount to the State of California Labor & Workforce Development Agency for payments required under PAGA.

G. Cost of Claims Administration

Simpluris has been retained to serve as Claims Administrator. The Parties agree that the administration costs will be paid out by Defendant. You may access a link to the Notice, motions for approval, motions for attorneys’ fees, and any other important documents in the case at the following website through the Claims Administrator: [insert website] III. WHAT ARE YOUR RIGHTS AS A CLASS MEMBER?

Your interests as a Settlement Class Member are represented by the Class Representatives and Class Counsel. You are a part of the Settlement Class and you will be bound by the terms of the settlement and any final judgment that may be entered by the Court, and will be deemed to have released certain claims against Defendant as described below. As a member of the Class you will not be responsible for the payment of attorneys’ fees or reimbursement of litigation expenses unless you retain your own counsel, in which event you will be responsible for your own attorneys’ fees and costs.

A. Object to Settlement

You can object to the settlement before final approval. However, if the Court rejects your objection you will still be bound by the terms of the settlement. To object, you must file a written objection in person or by mail with the Class Action Clerk of the United States District Court Northern District of California, 450 Golden Gate Avenue, Box 36060, San Francisco, CA 94102-3489 within thirty (30) days after mailing of this notice.

Any written objection must contain your full name, current address, and include all objections and the reasons therefore, and include any and all supporting papers (including, without limitation, all briefs, written evidence, and declarations) you wish to have considered. If you fail to comply with the objection procedure set forth herein you will be deemed to have not objected. To be valid and effective, any objection to approval of the settlement must be filed with the Clerk of the United States District Court Northern District of California postmarked no later than thirty (30) days after mailing of this notice.




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You can ask the Court to deny approval by filing an objection. You cannot ask the Court to order a larger settlement; the Court can only approve or deny the settlement, not change the terms of the settlement. If the Court denies approval, no settlement payments will be sent out and the lawsuit will continue. If that is what you want to happen, you must object.

If you wish to appear at the Final Approval Hearing and present your objection to the Court orally, your written statement must include a statement of intent to appear at the Final Approval Hearing. Failure to do so will bar you from appearing at the Final Approval Hearing and presenting your objections to the court. If you fail to timely file written objections you will not be permitted to present your objections at the Final Approval Hearing. If you choose to file an objection to the terms of this settlement, you may enter an appearance in propria persona (meaning you choose to represent yourself) or through your own attorney. The Final Approval Hearing at which the Court will adjudicate any Objections, and be asked to approve the settlement will be held at the United States District Court Northern District of California, 450 Golden Gate Avenue, San Francisco, CA 94102-3489, on [date] at [time] in Courtroom 7 or such other, later date as the Court may authorize. The date is subject to change without further notice to the Class and Class Members may check the settlement website or the court docket via the PACER to confirm that the date has not changed.

If you file an objection you remain eligible receive monetary compensation from the settlement.

B. Do Nothing

You are not required to take any action by reason of receipt of this Notice. If you do nothing, you will receive your portion of the settlement and will be bound by the terms of the settlement and have released your claims as described in section IV. IV. EFFECT OF THE SETTLEMENT

A. Released Rights and Claims

The settlement is intended to settle and fully release and discharge any and all claims against Defendant, its present and former parent companies, present owners, former owners, subsidiaries, related or affiliated companies (including, but not limited to Blue Vista Capital Management, LLC and Peak Campus Development, LLC), shareholders, officers, directors, employees, agents, attorneys, insurers, successors, and assigns, and any individual or entity which could be jointly liable with Defendant, or any of them (the “Releasees”), for any and all claims that were or otherwise could have been brought under the facts pleaded in Settlement Case arising out of or relating to work performed during the Class Period as follows:

a. Any statutory claims for unpaid wages (including but not limited to overtime

pay, minimum wage, and regular wages), and claims for interest, penalties, or premiums in connection therewith, as well as any claims under the California Labor Code, California Wage Orders, or the Fair Labor Standards Act;





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c. Any claims under PAGA arising out of the wage, hour and payroll practices alleged or could have been alleged based upon the facts alleged in the Lawsuit; and


e. In addition, as to the claims of Nicholas Selbe, Daniel Ghyczy, Makaela O’Connell, and Anniya Louis, the Released Claims further include, without limitation, any and all claims whatsoever regarding the Plaintiffs’ employment and/or the termination of their employment with Defendant and/or any of the Released Parties including, but not limited to, any claims for wages, bonuses, severance pay, employment benefits, stock options, violation of any personnel policy, any claims based on discrimination, harassment, unlawful retaliation, violation of public policy, or damages of any kind whatsoever, arising out of any common law torts, contracts, express or implied, any covenant of good faith and fair dealing, any theory of wrongful discharge, any theory of negligence, any theory of retaliation, any legal restriction on Defendant’s right to terminate the employment relationship, or any federal, state, or other governmental statute, executive order, regulation or ordinance, or common law, or any other basis whatsoever, to the fullest extent provided by law.

Judgment in this matter subject to the terms and conditions set forth therein constitutes a binding judgment under principles of res judicata.

If the settlement is approved by the Court and becomes final, the settlement will be consummated. If the settlement is not approved by the Court or does not become final for some other reason, the litigation will continue.

B. Payment to Claimants

Your distribution of the Net Settlement Amount will be paid in one single payment. V. FINAL SETTLEMENT APPROVAL HEARING

The Court will hold a hearing at the United States District Court Northern District of California, 450 Golden Gate Ave, San Francisco, CA 94102, [date] at [time] in Courtroom 7 or such other, later date as the Court may authorize, to determine whether the settlement should be finally approved as fair, reasonable, and adequate. The Court will also be asked to approve Class Counsel’s request for attorneys’ fees and reimbursement of costs and expenses and the enhancement awards for the Class Representatives. Class Counsel's application for attorneys’ fees and reimbursement of costs will be on file with the Court no later than [date], and will be available for review after that date.

The hearing may be continued without further notice to the settlement class. It is not necessary for you to appear at this hearing unless you have timely filed an objection that you wish to present in person to the Court. The date is subject to change without further notice to the Class and Class Members may check the settlement website or the Court’s PACER site to confirm that the date has not changed.




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ADDITIONAL INFORMATION

The above is a summary of the basic terms of the settlement. For the precise terms and conditions of the settlement, you are referred to the detailed Stipulated Settlement Agreement (“Stipulation”) and Order thereon, which will be on file with the Clerk of the Court. The pleadings, date of hearing, and other records in this litigation including the Stipulation may be examined at any time during regular business hours (9:00 a.m. and 4:00 p.m.) at United States District Court, Northern District of California, Office of the Clerk, 450 Golden Gate Ave, San Francisco, CA 94102. Class Members may access in person or through the case docket via PACER at https://www. cand.uscourts.gov/cm-ecf .

PLEASE DO NOT TELEPHONE THE COURT OR THE OFFICE OF THE CLERK FOR INFORMATION REGARDING THIS SETTLEMENT OR THE CLAIM PROCESS.

BY ORDER OF THE UNITED STATES DISTRICT COURT


Exhibit D To Settlement Agreement

Notice for Non-FLSA Class Members




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TO: With respect to the Lawsuit named Nicholas Selbe v. Peak Campus Management, LLC, all persons employed by Peak Campus Management, LLC in the State of California between January 1, 2011 and August 1, 2014 who were employed in any of the following positions: All-Star; Community Advisor; Community Assistant; Leasing All-Star; Work for Rent Leasing All-Star; or any combination thereof.

PLEASE READ THIS NOTICE CAREFULLY. TO RECEIVE YOUR SHARE OF THE SETTLEMENT PROCEEDS YOU NEED TO RETURN THE ENCLOSED CLAIM FORM BY MAIL BY SIXTY (60) DAYS FROM THE MAILING OF THE NOTICE. Pursuant to the settlement of the parties and order of the United States District Court of the Northern District of California, entered [date court approved settlement], YOU ARE HEREBY NOTIFIED AS FOLLOWS: A settlement has been reached between the parties in the lawsuit pending in the United States District Court for the Northern District of California on behalf of the following class, which has been provisionally certified for purposes of this settlement: The settlement proposes the following class:

All persons who have submitted a “Consent to Join Collective Action” in the instant Lawsuit prior to June 1, 2015 (“Opt-In Class Members”) and all individuals employed in the State of California between January 1, 2011 and August 1, 2014 who were employed in any of the following positions: All-Star; Community Advisor; Community Assistant; Leasing All-Star; Work for Rent Leasing All-Star; or any combination thereof (“California Class Members”).

The class set forth above shall be referred to as the “Class Members.” California Class Members who are not also Opt-In Class Members are referred to as “California Non-FLSA Class Members.” California Non-FLSA Class Members who do not properly opt out and Opt-In Class Members shall be referred to herein as “Settlement Class Members.” You have received this notice because records indicate that you worked within the time period identified for Peak Campus Management, LLC and that you are a California Non-FLSA Class Member. This notice is designed to advise you of this settlement and how to be excluded from the settlement.

I. BACKGROUND OF THE CASE

Plaintiffs Nicholas Selbe, Daniel Ghyczy, Makaela O’Connell, and Anniya Louis (“Plaintiffs”) filed a Complaint against Peak Campus Management, LLC (“Defendant”) in the Northern District of California on July 17, 2014 on behalf of persons working in non-exempt positions under a “work for rent” arrangement at all of Defendant’s locations in the country. Plaintiffs filed an Amended Complaint on February 10, 2015. Plaintiffs allege on behalf of themselves and all non-exempt employees in the position of All-Star; Community Advisor; Community Assistant; Leasing All-Star; Work for Rent Leasing All-Star; or any combination thereof, claims under the Fair Labor Standards Act, the California Labor Code, the California Business and Professions Code and California Wage Orders for failure to pay minimum wage, failure to pay wages due at the time of termination and failure to




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provide accurate wage statements and maintain required records, violation of the Private Attorney General Act, as well as unlawful business practices.

Through this action, the named Plaintiffs, on behalf of themselves and all others similarly situated, seek damages, restitution, pre- and post-judgment interest, declaratory relief, penalties, costs, attorneys’ fees and any further relief deemed appropriate by the Court against Defendant.

Defendant contends that Plaintiffs and the putative class members were properly paid all wages and compensation owed and deny all alleged wrongdoing associated with these and all other claims. Defendant further contends that since the putative class members were properly compensated, the remainder of the claims are also without merit. Defendant, therefore, disputes all claims for damages and other relief made by Plaintiffs and also disputes that the lawsuit is appropriate for class action treatment. Further, the Court has not stated or determined that Defendant did anything wrong.

This Settlement will act as the full and final resolution this Lawsuit, Selbe, et al. v. Peak Campus Management, LLC Case No. 3:14-cv-3238-MMC as well as all claims asserted therein. This case will be referred to as the “Settlement Case” or the “Lawsuit.”

The Class Representatives will be Plaintiffs Nicholas Selbe, Daniel Ghyczy, Makaela O'Connell, and Anniya Louis. Law Firms David, Kamp & Frank, L.L.C. and Kingsley & Kingsley, APC, have been approved by the Court as “Class Counsel.” Class counsel can be contacted as follows to answer questions:

Joshua M. David [email protected] Nicholas A. Nunes [email protected] DAVID, KAMP & FRANK, L.L.C. 739 Thimble Shoals Blvd., Suite 105 Newport News, VA 23606 (757) 595-4500 (phone) (757) 595-6723 (facsimile)

Defendant is represented in this action by Elizabeth Staggs Wilson, Shannon Boyce, and Fatemeh Mashouf of Littler Mendelson, P.C., 633 West Fifth Street, 63rd Floor, Los Angeles, California 90071.

Class Counsel believes that further proceedings in this case, including a trial and probable appeals, would be very expensive and protracted. No one can confidently predict how the various legal questions at issue, including the amount of damages, would ultimately be resolved. Therefore, upon careful consideration of all of the facts and circumstances of this case, Class Counsel believes that the proposed settlement is fair, reasonable and adequate. II. SUMMARY OF THE PROPOSED SETTLEMENT

The Class Representatives and Class Counsel support this settlement. Among the reasons given for support includes the inherent risk of trial on the merits and the delays associated with litigation.

The settlement provides for the following:




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A. Settlement Formula

Defendant agrees to pay eight hundred thousand dollars ($800,000.00) (the “Settlement Amount”) to resolve the claims of the Settlement Class Members. The Settlement Amount will include all payments to be made to Settlement Class Members, Attorneys’ Fees and Costs approved by the Court, employees’ share of payroll taxes that Defendant is required to withhold as a matter of law, the Enhancement Award to Plaintiff as the Class Representative and the PAGA payment.

The Settlement Amount minus Class Counsel’s Attorneys’ Fees and Costs approved by the Court, the actual Enhancement Award to Plaintiff, the PAGA Payment, and the employees’ share of payroll taxes that Defendant is required to withhold as a matter of law, shall constitute the “Net Settlement Amount.” Defendant agrees to distribute one-hundred percent (100%) of the Net Settlement Amount less any deductions required by law to all Class Members who do not opt-out on a pro rata basis based upon the number of weeks worked under the “Work for Rent” arrangement.

In allocating the Net Settlement Amount, the settlement takes into account the higher hourly rates, minimum wage, penalties and limits on rent credits for California Class Members.

For weeks in which a Settlement Class Member worked in California under the “Work for Rent” arrangement, the Settlement Class Member shall be allocated the equivalent of one and one tenth weeks for every such week worked. Settlement Class Members shall receive a minimum of $100.

B. Calculations

Defendant’s records will be determinative with respect to the number of weeks you worked in each position unless you dispute those records as provided below.

C. Release

The claim form will contain a release (described in more detail below), which releases Defendant and all related or affiliated entities from any and all claims that were brought, or could have been brought, relating to or arising out of the claims asserted in the Settlement Case as follows: (a) Any statutory claims for unpaid wages (including but not limited to overtime pay, minimum wage, and regular wages), and claims for interest, penalties, or premiums in connection therewith, as well as any claims under the California Labor Code, California Wage Orders, or the Fair Labor Standards Act, alleged or which could have been alleged under the facts pleaded in the complaints filed as part of the Settlement Case; (b) Any claims for injunctive relief, declaratory relief, restitution, fraudulent business practices or punitive damages alleged or which could have been alleged under the facts pleaded in the complaints filed as part of the Settlement Case; (c) Any claims under the California Private General Attorney Act (“PAGA”) arising out of the wage, hour and payroll practices alleged or which could have been alleged under the facts pleaded in the complaints filed as part of the Lawsuit; and (d) Any and all other claims under California common law, the California Labor Code, California Wage Orders, the California Business and Professions Code, and the Fair Labor Standards Act asserted in or that could have been asserted under the facts pleaded in the complaints filed as part of the Settlement Case.

D. Class Representatives




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The Class Representatives shall be Nicholas Selbe, Daniel Ghyczy, Makaela O’Connell, and Anniya Louis. The Class Representatives shall apply to the Court for enhancement payments in such amount as the Court determines to be fair and reasonable, at the time of the Final Approval Hearing. The parties’ preliminary agreement proposed a payment of $4,000.00-$8,000.00 for each Class Representative, with all enhancement payments totaling $24,000.00. This amount is considered by the parties to be fair, reasonable and adequate given the time expended by the Class Representatives, the risks associated with being Class Representatives, the fear of retaliation suffered by the Class Representatives, and the Class Representatives’ agreement to waive all claims against Defendant.

E. Attorneys’ Fees

Class Counsel will petition the Court for attorneys' fees not to exceed 33% of the Net Settlement Amount (equating to $264,400.00), plus reasonable costs, all subject to approval by the Court.

F. PAGA Payment

Defendant agrees to pay $5,000 of the Settlement Amount to the State of California Labor & Workforce Development Agency for payments required under PAGA.

G. Cost of Claims Administration

Simpluris has been retained to serve as Claims Administrator. The Parties agree that the administration costs will be paid out by Defendant. You may access a link to the Notice, motions for approval, motions for attorneys’ fees, and any other important documents in the case at the following website through the Claims Administrator: [insert website] IV. WHAT ARE YOUR RIGHTS AS A CLASS MEMBER?

Your interests as a Settlement Class Member are represented by the Class Representatives and Class Counsel. Unless you opt out of the Class, you are a part of the Settlement Class and you will be bound by the terms of the settlement and any final judgment that may be entered by the Court, and will be deemed to have released certain claims against Defendant as described below. As a member of the Class you will not be responsible for the payment of attorneys’ fees or reimbursement of litigation expenses unless you retain your own counsel, in which event you will be responsible for your own attorneys’ fees and costs.

A. Submit a Claim to Receive Your Share or to Dispute the Amount of Your Share

In order to receive your share of the settlement or to dispute the amount of your share of the settlement, you must complete and sign the Claim Form and return it, no later than sixty (60) days after mailing of this notice via regular mail to Simpluris at the following address:

PEAK CAMPUS SETTLEMENT CLAIMS ADMINISTRATOR c/o [insert address]




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The Claim Form must be postmarked no later than sixty (60) days after mailing of this notice. If the Claim Form is sent from within the United States it must be sent through the United States Postal Service via regular mail. If you lost, misplaced, or need another Claim Form, in addition to contacting Class Counsel at the addresses identified in Section I of this Notice, you may also contact the Claims Administrator toll-free at 1-_[insert number]

B. Object to Settlement

You can object to the settlement before final approval. However, if the Court rejects your objection you will still be bound by the terms of the settlement. To object, you must file a written objection in person or by mail with the Class Action Clerk of the United States District Court Northern District of California, 450 Golden Gate Avenue, Box 36060, San Francisco, CA 94102-3489 within thirty (30) days after mailing of this notice.

Any written objection must contain your full name, current address, and include all objections and the reasons therefore, and include any and all supporting papers (including, without limitation, all briefs, written evidence, and declarations) you wish to have considered. If you fail to comply with the objection procedure set forth herein you will be deemed to have not objected. To be valid and effective, any objection to approval of the settlement must be filed with the Clerk of the United States District Court Northern District of California. Please be aware that the Court can only approve or deny the settlement, not change the terms of the settlement.

You can ask the Court to deny approval by filing an objection. You cannot ask the Court to order a larger settlement; the Court can only approve or deny the settlement, not change the terms of the settlement. If the Court denies approval, no settlement payments will be sent out and the lawsuit will continue. If that is what you want to happen, you must object.

If you wish to appear at the Final Approval Hearing and present your objection to the Court orally, your written statement must include a statement of intent to appear at the Final Approval Hearing. Failure to do so will bar you from appearing at the Final Approval Hearing and presenting your objections to the court. If you fail to timely file written objections you will not be permitted to present your objections at the Final Approval Hearing. If you choose to file an objection to the terms of this settlement, you may enter an appearance in propria persona (meaning you choose to represent yourself) or through your own attorney. The Final Approval Hearing at which the Court will adjudicate any Objections, and be asked to approve the settlement will be held at the United States District Court Northern District of California, 450 Golden Gate Avenue, San Francisco, CA 94102-3489, on [date] at [time] in Courtroom 7 or such other, later date as the Court may authorize. The date is subject to change without further notice to the Class and Class Members may check the settlement website or the court docket via the PACER to confirm that the date has not changed.

If you file an objection you remain eligible to submit a Claim Form and receive monetary compensation from the settlement.

IF YOU INTEND TO OBJECT TO THE SETTLEMENT, BUT WISH TO RECEIVE YOUR SHARE OF APPROVED SETTLEMENT FUNDS, YOU MUST TIMELY FILE YOUR CLAIM AS STATED ABOVE. IF THE COURT APPROVES THE SETTLEMENT DESPITE ANY OBJECTIONS, AND YOU DO NOT HAVE A




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CLAIM ON FILE, YOU WILL NOT RECEIVE ANY SETTLEMENT FUNDS.

C. Exclude Yourself from the Settlement

In order for you to validly and effectively request exclusion from, and opt out of, this Settlement, you must submit a written, signed, and dated request to the Claims Administrator. The Exclusion request must include the last four digits of your social security number to be valid or applicable work permit number if you have no social security number. The request for exclusion must be postmarked, or physically delivered to the Claims Administrator, no later than, thirty (30) days after mailing of this Notice.

If you desire to be excluded from, and opt out of, this Settlement but fail to comply with the Exclusion procedure set forth herein, you shall be deemed to have not been excluded or opted out and you will be bound by the Release as explained in Paragraph IV. Any person who files a complete and timely request for Exclusion shall, upon receipt, no longer be a member of the Settlement Class, shall be barred from participating in any portion of the settlement, may not object to the settlement, and shall receive no benefits from the settlement. Any such person will not release any claims he/she may have against Defendant. You may choose to proceed against the Defendant at your expense and cost.

If you first request exclusion from, and opt out of, the settlement and then object, the objections will not be considered valid. If you object and then request exclusion from, and opt out of the settlement, you will be deemed to have waived your objection. If you submit both a Claim Form and a request for exclusion, only the Claim Form will be valid and you will be included in the settlement.

D. Do Nothing

You are not required to take any action by reason of receipt of this Notice. As a California Non-FLSA Class Member, if you do nothing, then, you will not receive any portion of the settlement, but will remain a member of the Settlement Class and will be bound by the terms of the settlement and have released your claims as described below. IV. EFFECT OF THE SETTLEMENT

A. Released Rights and Claims

The settlement is intended to settle and fully release and discharge any and all claims against Defendant, its present and former parent companies, present owners, former owners, subsidiaries, related or affiliated companies (including, but not limited to Blue Vista Capital Management, LLC and Peak Campus Development, LLC), shareholders, officers, directors, employees, agents, attorneys, insurers, successors, and assigns, and any individual or entity which could be jointly liable with Defendant, or any of them (the “Releasees”), for any and all claims that were or otherwise could have been brought under the facts pleaded in Settlement Case arising out of or relating to work performed during the Class Period, as follows:

a. Any statutory claims for unpaid wages (including but not limited to overtime

pay, minimum wage, and regular wages), and claims for interest, penalties, or premiums in connection therewith, as well as any claims under the




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California Labor Code, California Wage Orders, or the Fair Labor Standards Act;




e. In addition, as to the claims of Nicholas Selbe, Daniel Ghyczy, Makaela O’Connell, and Anniya Louis, the Released Claims further include, without limitation, any and all claims whatsoever regarding the Plaintiffs’ employment and/or the termination of their employment with Defendant and/or any of the Released Parties including, but not limited to, any claims for wages, bonuses, severance pay, employment benefits, stock options, violation of any personnel policy, any claims based on discrimination, harassment, unlawful retaliation, violation of public policy, or damages of any kind whatsoever, arising out of any common law torts, contracts, express or implied, any covenant of good faith and fair dealing, any theory of wrongful discharge, any theory of negligence, any theory of retaliation, any legal restriction on Defendant’s right to terminate the employment relationship, or any federal, state, or other governmental statute, executive order, regulation or ordinance, or common law, or any other basis whatsoever, to the fullest extent provided by law.


If you do not elect to exclude yourself from the Settlement Class as set forth in III.C, you will be deemed to have entered into this release and to have released the above-described claims. If the settlement is approved by the Court and becomes final, the settlement will be consummated. If the settlement is not approved by the Court or does not become final for some other reason, the litigation will continue.

B. Payment to Claimants

Your distribution of the Net Settlement Amount will be paid in one single payment. V. FINAL SETTLEMENT APPROVAL HEARING

The Court will hold a hearing at the United States District Court Northern District of California, 450 Golden Gate Ave, San Francisco, CA 94102, [date] at [time] in Courtroom 7 or such other, later date as the Court may authorize, to determine whether the settlement should be finally approved as fair, reasonable, and adequate. The Court will also be asked to approve Class Counsel’s request for attorneys’ fees and reimbursement of costs and expenses and the enhancement awards for the Class Representatives. Class Counsel's application for attorneys’ fees and reimbursement of




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costs will be on file with the Court no later than [date], and will be available for review after that date.

The hearing may be continued without further notice to the settlement class. It is not necessary for you to appear at this hearing unless you have timely filed an objection that you wish to present in person to the Court. The date is subject to change without further notice to the Class and Class Members may check the settlement website or the Court’s PACER site to confirm that the date has not changed.

ADDITIONAL INFORMATION

The above is a summary of the basic terms of the settlement. For the precise terms and conditions of the settlement, you are referred to the detailed Stipulated Settlement Agreement (“Stipulation”) and Order thereon, which will be on file with the Clerk of the Court. The pleadings, date of hearing, and other records in this litigation including the Stipulation may be examined at any time during regular business hours (9:00 a.m. and 4:00 p.m.) at United States District Court, Northern District of California, Office of the Clerk, 450 Golden Gate Ave, San Francisco, CA 94102. Class Members may access in person or through the case docket via PACER at https://www. cand.uscourts.gov/cm-ecf .

PLEASE DO NOT TELEPHONE THE COURT OR THE OFFICE OF THE CLERK FOR INFORMATION REGARDING THIS SETTLEMENT OR THE CLAIM PROCESS.

BY ORDER OF THE UNITED STATES DISTRICT COURT


Exhibit E To Settlement Agreement

Claim Form




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CLAIM FORM – CALIFORNIA NON-FLSA CLASS MEMBERS

Nicholas Selbe, et al. v. Peak Campus Management LLC United States District Court, Northern District of California, Case No. 3:14-cv-3238-MMC

TO RECEIVE YOUR SHARE OF THE SETTLEMENT PROCEEDS YOU MUST RETURN THIS

CLAIM FORM BY MAIL POSTMARKED NO MORE THAN 60 DAYS AFTER THE DATE OF

MAILING OF THIS NOTICE.

I. CLAIMANT IDENTIFICATION:

0123456 [ID] [NAME] [ADDR1] [ADDR2] [CITY] [STATE] [ZIP

Name/Address Changes (if any) ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________

If your name or address is different from information shown above, print the corrections on the lines to the right.

Residence Telephone Number: [123-456-7890]

Telephone Number (if different): ( ____ ____ ____) ____ ____ ____ - ____ ____ ____ ____

Last 4 digits of Social Security Number: ___ ___ ___ ___

II. EMPLOYMENT INFORMATION:

Defendant’s personnel records state that the exact dates of your employment for Defendant’s in California during the Class Period as an All-Star, Community Advisor, Community Assistant, Leasing All-Star, Work for Rent Leasing All-Star were [## / ## / #### through ## / ## / ####].

Defendant’s records reflect that during your employment you worked ____ weeks as an All-Star in California.

Based on the stated information your estimated settlement share is $____________.

If you agree with the information stated above, please sign, date where indicated on the reverse, and return this Claim Form postmarked on or before 60 days of mailing, to receive your monetary recovery.

I disagree with the information stated above. I believe that my actual dates of employment during the Class Period were __ __ / __ __ / __ __ __ __ to __ __ / __ __ / __ __ __ __. I have attached payroll, tax and/or other documentation that supports this belief. I agree/disagree (circle one) with the number of weeks worked. I disagree, because I believe I worked ____ weeks as an All-Star in California.

III. FAILURE TO RESPOND




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Failure to complete this Claim Form does not preclude you from being bound to the Settlement Agreement and the terms and conditions of the Agreement, including the Release, as described in section IV. If you wish to be excluded from the Settlement Agreement and not be bound by the Release described in section IV, you must opt-out of the Settlement as described in the Notice.

IV. ACKNOWLEDGMENT OF RELEASE OF CERTAIN CLAIMS.

By completing this Claim Form and accepting the benefits under this settlement, I hereby agree that: I, and all persons purporting to act on my behalf or purporting to assert a claim under or through me, including, but not limited to, my dependents, heirs and assigns, beneficiaries, devisees, legatees, executors, administrators, trustees, conservators, guardians, personal representatives, and successors-in-interest, whether individual, class, representative, legal, equitable, direct or indirect, or any other type or in any other capacity hereby forever completely and irrevocably release and discharge Peak Campus Management, LLC (“Defendant”), its present and former parent companies, present owners, former owners, subsidiaries, related or affiliated companies, shareholders, officers, directors, employees, agents, attorneys, insurers, successors, and assigns, and any individual or entity which could be jointly liable with Defendant, or any of them (collectively, with Defendant, the “Released Parties”), for any and all claims that were or otherwise could have been brought under the facts pleaded in the civil action styled Nicholas Selbe, et al. v. Peak Campus Management LLC, United States District Court, Northern District of California, Case No. 3:14-cv-3238-MMC, arising out of or relating to work performed during the Class Period, as follows:

a. Any statutory claims for unpaid wages (including but not limited to overtime pay, minimum wage, and regular wages), and claims for interest, penalties, or premiums in connection therewith, as well as any claims under the California Labor Code, California Wage Orders, or the Fair Labor Standards Act;





V. MAILING INSTRUCTIONS. Please mail this completed Claim Form to the Claims Administrator at the address listed below.

Your completed Claim Form must be postmarked on or before 60 days from mailing of the Notice to you or else you will forfeit your benefits under this Settlement. The address of the Claims Administrator is:

PEAK CAMPUS SETTLEMENT CLAIMS ADMINISTRATOR c/o I declare, under penalty of perjury under the laws of the United States of America and the

State of California that all of the information contained in this Claim Form is true and correct, and that I signed this Claim Form

on ___________________________, at ______________________________________. Date City and State ______________________________ ____________________________________ Signature Print Name
