Memorandum in Support of Preliminary Approval of California Wage & Hour Class Action Against 8x8

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MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

BLUMENTHAL, NORDREHAUG & BHOWMIK Norman B. Blumenthal (State Bar #068687) Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066)2255 Calle ClaraLa Jolla, CA 92037Telephone: (858)551-1223Facsimile: (858) 551-1232

UNITED EMPLOYEES LAW GROUP Walter Haines (State Bar #71705)65 Pine Ave, #312Long Beach, CA 90802Telephone: (562) 256-1047Facsimile: (562) 256-1006

Attorneys for Plaintiffs

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SANTA CLARA

NIKKI MEIERDIERCKS, an individual;KARIN FLAVETTA, an individual; FRANKTORRES, an individual; on behalf ofthemselves, and on behalf of all personssimilarly situated,

Plaintiffs,

vs.

8X8, INC.; and Does 1 to 10,

Defendants.

CASE No. 110cv162413 (Class Action)

MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OF MOTIONFOR PRELIMINARY APPROVAL OFCLASS SETTLEMENT

Date: April 29, 2011Time: 9:00 a.m.

Dept.: 1Judge: Hon. James P. Kleinberg

[Complaint Filed: January 27, 2010]

E-FILEDApr 8, 2011 8:00 AM

David H. YamasakiChief Executive Officer/Clerk

Superior Court of CA, County of Santa ClaraCase #1-10-CV-162413 Filing #G-30947

By D. Kontorovsky, Deputy

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MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT-i-

TABLE OF CONTENTS

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

II. DESCRIPTION OF THE PROPOSED SETTLEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. NATURE OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IV. THE SETTLEMENT MEETS THE CRITERIA NECESSARY FOR THIS COURT TO GRANT PRELIMINARY APPROVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. The Role Of The Court In Preliminary Approval Of A Class Action Settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B. Factors To Be Considered In Granting Preliminarily Approval . . . . . . . . . . . . . . . . 7

1. The Settlement is the Product of Serious, Informed and Noncollusive Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2. The Settlement Has No "Obvious Deficiencies" and Falls Within the Range for Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

3. The Settlement Does Not Improperly Grant Preferential Treatment To Class Representatives or Segments Of The Settlement Class . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

4. The Stage Of The Proceedings Are Sufficiently Advanced To Permit Preliminary Approval Of The Settlement . . . . . . . . . . . . 13

V. THE CLASS IS PROPERLY CERTIFIED FOR SETTLEMENT PURPOSES . . . . . . . . . . 14

A. California Code of Civil Procedure §382 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

B. The Proposed Class Is Ascertainable and Numerous . . . . . . . . . . . . . . . . . . . . . . . 15

C. Common Issues of Law and Fact Predominate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

D. The Claims of the Plaintiffs Are Typical of the Class Claims . . . . . . . . . . . . . . . . . 16

E. The Class Representation Fairly and Adequately Protected the Class . . . . . . . . . . 16

F. The Superiority Requirement Is Met . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

VI. THE PROPOSED METHOD OF CLASS NOTICE IS APPROPRIATE . . . . . . . . . . . . . . 17

VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947

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MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT-ii-

TABLE OF AUTHORITIES

Cases: Page:

Ali v. U.S.A. Cab, Ltd., 176 Cal. App. 4th 1333 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Barcia v. Contain-A-Way, Inc., 2009 WL 587844 (S.D. Cal. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Boggs v. Divested Atomic Corp., 141 F.R.D. 58 (S.D. Ohio 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Bowles v. Superior Court, 44 Cal.2d 574 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Cook v. Niedert, 142 F.3d 1004 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Dunk v. Ford Motor Co., 48 Cal.App.4th 1794 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Dunbar v. Albertson's, Inc., 141 Cal. App. 4th 1422 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Dunleavy v. Nadler (In re Mego Fin. Corp. Sec. Litig.), 213 F.3d 454 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Frazier v. City of Richmond, 184 Cal.App.3d 1491 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Gautreaux v. Pierce, 690 F.2d 616 (7th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ghazaryan v. Diva Limousine, Ltd., 169 Cal. App. 4th 1524 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Glass v. UBS Fin. Servs., 2007 U.S. Dist. LEXIS 8476 (N.D.Cal. January 27, 2007) . . . . . . . . . . . . . . . . 10, 11, 12, 13

Green v. Obledo, 29 Cal.3d 126 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15, 16

Hogan v. Allstate Ins. Co., 361 F.3d 621 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Hopson v. Hanesbrands Inc., 2009 WL 928133 (N.D. Cal. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366 (6th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12


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MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT-iii-

In re Wash. Public Power Supply System Sec. Litig., 720 F. Supp. 1379 (D. Ariz. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

Kirkorian v. Borelli, 695 F. Supp. 446 (N.D. Cal. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Linder v. Thrifty Oil Co., 23 Cal. 4th 429 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Louie v. Kaiser Foundation Health Plan, Inc., 2008 WL 4473183 (S.D.Cal. Oct. 06, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Lyons v. Marrud, Inc., [1972-1973 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 93,525 (S.D.N.Y. 1972) . . . . . . . 7

Officers for Justice v. Civil Service Com'n, etc.,688 F.2d. 615 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Owen v. Macy's, Inc., 175 Cal. App. 4th 462 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp., 323 F. Supp. 364, 372 (E.D. Pa. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Rose v. City of Hayward, 126 Cal.App.3d 926 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Sequeira v. Rincon-Vitova Insectaries, 32 Cal. App. 4th 632 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Tate v. Weyerhaeuser Co., 723 F.2d 598 (8th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Valentino v. Carter-Wallace, Inc., 97 F.3d 1227 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Van Vranken v. Atlantic Richfield Co., 901 F.Supp. 294 (N.D. Cal. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Vasquez v. Superior Court, 4 Cal.3d 800 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Weinberger v. Kendrick, 698 F.2d 61 (2d Cir. 1982), cert. denied 464 U.S. 818 (1983) . . . . . . . . . . . . . . . . . . . . . . . 7

Wershba v. Apple Computer, Inc., 91 Cal.App.4th 224 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7


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MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT-iv-

Statutes, Rules and Regulations: California Business & Professions Code §17200 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

California Code of Civil Procedure §382 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

California Labor Code §226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

California Labor Code §226.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3



California Labor Code §2802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

California Labor Code §2698 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

California Rules of Court, rule 3.766 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

California Rules of Court, rule 3.769 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Secondary Sources:

2 H. Newberg & A. Conte, Newberg on Class Actions (3d ed. 1992) . . . . . . . . . . . . . . . . . . . . . 6, 15

Manual For Complex Litigation, (Second), §30.44, 41.43 (1993) . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

3B J. Moore, Moore's Federal Practice §§23.80 - 23.85 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7


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1 Assuming the Court signs the Preliminary Approval Order on April 29, 2011, the Plaintiffssuggest that the Final Fairness Hearing be set for a date that is 130 days out, which would meanSeptember 9, 2011 or as soon thereafter as the Court is available.

2 Capitalized terms have the same meaning as contained in the Agreement.

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT-1-

I. INTRODUCTION

Plaintiffs Nikki Meierdiercks, Karin Flavetta and Frank Torres (“Plaintiffs”) respectfully submit

this memorandum in support of the motion for preliminary approval of this proposed class action

settlement with Defendant 8X8, Inc. (“Defendant”), and seek entry of an order: (1) preliminarily

approving the proposed settlement of this class action with Defendant; (2) approving the form and

method for providing class-wide notice; (3) directing that notice of the proposed settlement be given

to members of the Settlement Class; and (4) scheduling a Final Fairness Hearing date to consider

Plaintiffs’ request for final approval of the proposed settlement, entry of the Final Judgment, and

Plaintiffs’ application for attorneys' fees and reimbursement of expenses.1

The Complaint alleges misclassification claims for unpaid overtime, meal and rest break

compensation, business expense reimbursement and related claims for penalties. Plaintiff and

Defendant have reached a full and final settlement of the above-captioned action, which is embodied

in the Class Action Settlement Agreement (“Agreement”) filed concurrently with the Court.2 A copy

of the Agreement is attached as Exhibit 1 to the Declaration of Kyle Nordrehaug, (“Decl. Nordrehaug”),

served and filed herewith.

As consideration for this Settlement, the Settlement Total that Defendant will pay under this

Settlement is a total of Six Hundred Twenty-five Thousand Dollars ($625,000). This payment will

settle all issues pending in the litigation between the Plaintiffs, on the one hand, and the Defendant, on

the other hand, including but not limited to, all payments to the Settlement Class, attorney’s fees,

litigation expenses, Service Payments to the Plaintiffs, the PAGA payment, and the expenses of the

Claims Administrator. All of the Settlement Total will be disbursed pursuant to this Agreement, and

no funds will revert to Defendant. See Decl. Nordrehaug at ¶3.

The Settlement is fair, reasonable and adequate, and should be preliminarily approved. The

Settlement represents 65% of the estimated overtime damages and 40% of the total of the total possible


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claims including the maximum penalties, assuming these amounts could be proven and obtained at trial.

Therefore, Plaintiffs respectfully request that this Court grant preliminary approval of the Agreement.

Decl. Nordrehaug at ¶6.

II. DESCRIPTION OF THE SETTLEMENT

Subject to the terms and conditions of this Agreement, the Settlement Total that Defendant will

pay under this Settlement is a total of Six Hundred Twenty-five Thousand Dollars ($625,000). This

amount constitutes Defendant’s entire financial obligation pursuant to this Agreement (provided that

if there is insufficient funds in the residual account to pay Defendant’s payroll tax burden, Defendant

shall pay the amount of the payroll tax burden which is not covered by the residual account). All of the

Settlement Total will be disbursed pursuant to this Agreement, and no funds will revert to Defendant.

(Agreement at §III(A).) The “Net Settlement Total” means the net amount of the Settlement Total

available for payment of claims to class members after deducting therefrom the expenses charged for

claims administration, attorneys’ fees, reimbursement of attorneys’ expenses, the LWDA share of the

PAGA payment and the service awards. (Agreement at §I(V).) Decl. Nordrehaug at ¶16.

Subject to the terms and conditions of the Agreement, the Claims Administrator will make the

following payments out of the Settlement Total as follows: (1) Settlement Shares to the Claimants; (2)

the reasonable fees and expenses of the Claims Administrator in an amount not to exceed $15,000; (3)

the payment to the California Labor and Workforce Development Agency in the amount of $3,750; (4)

an award of not more than $156,250 (25% of the Settlement Total) to Class Counsel for attorneys’ fees;

(5) an amount not more than $25,000 to Class Counsel as reimbursement for litigation expenses

incurred; and, (6) an award of not more than $5,000 to each Plaintiff as his or her Class Representative

Service Payment. (Agreement at §III(B)-(C).) Decl. Nordrehaug at ¶17.

All Unclaimed Settlement Shares or unclaimed funds allocated to Non-Participating Class

Members shall be allocated first to payment of the Defendant’s share of payroll taxes on those Wage

Portions of the Net Settlement Total, and thereafter, any remaining funds in the Net Settlement Total

shall be distributed to Claimants on a pro rata basis relative to their Settlement Shares. (Agreement at

§III(C)(5).) If there are not sufficient funds in the residual account to pay Defendant’s payroll tax


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burden, Defendant shall pay the amount of the payroll tax burden which is not covered by the residual

account. (Agreement at §III(A).) Decl. Nordrehaug at ¶17.

Under the Settlement, the Claims Administrator will pay a Settlement Share from the Net

Settlement Total to each Claimant who timely and properly submits a Claim Form. The Settlement

Share for each Claimant will be calculated by (a) dividing the Net Settlement Total by the total number

of work weeks in a covered position during the Class Period for all Class Members and (b) multiplying

the result by each individual Claimant’s work weeks in a covered position during the Class Period.

(Agreement at §III(C)(1).) One-half (50 %) of each Settlement Share shall be allocated to wages, and

one-half (50%) of each Settlement Share shall be allocated to interest and penalties allegedly due to

employees. Decl. Nordrehaug at ¶18.

Non-Participating Class Members will receive no Settlement Share, and their election not to

participate will reduce neither the Settlement Total nor the Net Settlement Total. Their respective

Settlement Shares will be retained in the Net Settlement Total for distribution. (Agreement at

§III(C)(3).) If a Participating Class Member does not submit a valid and timely Claim Form and

therefore does not qualify as a Claimant, the Settlement Share that would have been paid to him or her

if he or she had qualified as a Claimant (the “Unclaimed Settlement Share”) will be retained in the Net

Settlement Total for distribution (Agreement at §III(C)(4).) All Unclaimed Settlement Shares or

unclaimed funds allocated to Non-Participating Class Members shall be allocated first to payment of

the Defendant’s share of payroll taxes on those Wage Portions of the Net Settlement Total, and

thereafter, any remaining funds in the Net Settlement Total shall be distributed to Claimants on a pro

rata basis relative to their Settlement Shares. (Agreement at §III(C)(5).) Decl. Nordrehaug at ¶19.

III. NATURE OF THE CASE

On January 27, 2010, plaintiffs Nikki Meierdiercks, Karin Flavetta, and Frank Torres filed a

Complaint against 8x8, Inc. in the Superior Court for the County of Santa Clara. The Complaint alleged

the following causes of action: Unfair Competition (Bus. & Prof. Code §§ 17200, et seq.); Failure to

Pay Overtime Wages (Labor Code §§ 510, et seq.); Failure to Provide Meal and Rest Periods (Labor

Code §§ 226.7 and 512); Failure to Indemnify Business Expenses (Labor Code § 2802); and Failure


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to Provide Accurate Itemized Statements (Labor Code § 226). The Complaint was filed as a class

action. The Complaint alleges that Plaintiffs and other employees were misclassified as “exempt”

employees, and as a result, these employees failed to receive overtime compensation, off-duty meal

periods and other benefits. Plaintiffs sought to certify a class composed of themselves and similarly

situated individuals and to recover from Defendant wages, interest, penalties, and attorneys’ fees and

costs. Decl. Nordrehaug at ¶7.

On March 2, 2010, Defendant filed an Answer to the Complaint. In the Answer, Defendant

denied the allegations set forth in the Complaint and denied that Plaintiffs suffered any damages as a

result of its conduct. Defendant contended that Plaintiffs and Defendant’s other similarly situated

employees were properly classified as exempt from overtime. Decl. Nordrehaug at ¶8.

On April 29, 2010, Plaintiffs filed a First Amended Complaint which, inter alia, (I) revised

certain of the allegations while retaining the material allegations of their claims, and (II) added a claim

for civil penalties under the Labor Code Private Attorneys General Act (Cal. Labor Code § 2698, et

seq.) based upon the same material allegations. On May 21, 2010, Defendant filed an Answer to the

First Amended Complaint. Decl. Nordrehaug at ¶9.

Defendant answered each of Plaintiffs’ Complaints, denying the material allegations.

Specifically, Defendant contended (and continues to contend) that the Action could not properly be

maintained as a class action; that members of the class were properly classified as exempt from state

overtime requirements; that Defendant did not fail to pay to any members of the class who are former

employees any wages allegedly due at the time of their termination; that Defendant provided accurate,

itemized wage statements to members of the class; that Defendant provided meal and rest periods to

the members of the class; that Defendant did not fail to reimburse employees for business expenses

necessarily incurred in the performance of their duties; that Defendant did not violate California

Business and Professions Code section 17200 et seq; and that Defendant is not liable for any of the

penalties claimed or that could be claimed in the Complaints. Decl. Nordrehaug at ¶10.

On June 7, 8 and 9, 2010, the Defendant took the deposition of each of the named Plaintiffs. On

September 15, 2010, Plaintiffs deposed Defendant’s corporate designee Daniel Weirich, and on

September 16, 2010, Plaintiffs deposed Defendant’s second corporate designee Marc Cook. Plaintiffs


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also served and Defendant responded to three sets of Special Interrogatories, three sets of Requests for

Admissions, three sets of Requests for Production, and three sets of Form Interrogatories. Through the

Claims Administrator, Plaintiffs distributed the Belaire Notice to the putative class and thereafter

received the contact information for the employees who did not opt out. Plaintiffs conducted

interviews of putative class members. Plaintiffs also responded to Defendant’s written discovery.


On June 25, 2010, the Court conducted a case management conference in the Action. On

September 17, 2010, the Court conducted a continued case management conference in the Action, and

also held an informal conference to address a discovery dispute that was briefed by both parties. Decl.

Nordrehaug at ¶12.

Defendant produced the computer system information for each named Plaintiff in April 2010

which showed the dates and time of work performed by the Sales Representatives. and, in anticipation

of mediation, Defendant also produced this information for all 166 members of the putative class along

with the necessary payroll data for all 166 members of the putative class. Decl. Nordrehaug at ¶13.

On November 9, 2010, the parties engaged in mediation before David Rotman, a preeminent

mediator of wage and hour class actions. At the mediation, the parties, represented by its respective

counsel, recognized the substantial risk of an adverse result in the Action and successfully negotiated

a class action settlement of this action. The parties executed a Memorandum of Understanding setting

forth the basic terms of the Settlement. Decl. Nordrehaug at ¶14.

Class Counsel has conducted a thorough investigation into the facts of the class action. Class

Counsel has diligently evaluated the Class Members' claims against Defendant. Prior to the Parties

executing a “Memorandum of Understanding,” Class Counsel obtained all necessary information

concerning Defendant’s employment policies and practices and Class Member data, including relevant

salary and time record information for the employees at issue. Based on the foregoing data and their

own independent investigation and evaluation, Class Counsel believes that the settlement with

Defendant for the consideration and on the terms set forth in this Agreement is fair, reasonable, and

adequate and is in the best interest of the Class in light of all known facts and circumstances, including

the risk of significant delay, defenses asserted by Defendant, and numerous potential appellate issues.


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3 In the absence of California law on the subject, California courts look to federal authority. Vasquez v. Superior Court, 4 Cal.3d 800, 821 (1971). “It is well established that in the absence ofrelevant state precedents trial courts are urged to follow the procedures prescribed in Rule 23 of theFederal Rules of Civil Procedure for conducting class actions.” Frazier v. City of Richmond, 184Cal. App.3d 1491, 1499 (1986), citing Green v. Obledo, 29 Cal.3d 126, 145-146 (1981).



IV. THE SETTLEMENT MEETS THE CRITERIA NECESSARY FOR THIS COURT TOGRANT PRELIMINARY APPROVAL

When a proposed class-wide settlement is reached, the settlement must be submitted to the

court for approval. 2 H. Newberg & A. Conte, Newberg on Class Actions (3d ed. 1992) at §11.41, p.11-

87. Preliminary approval is the first of three steps that comprise the approval procedure for settlements

of class actions. The second step is the dissemination of notice of the settlement to all Class Members.

The third step is a final settlement approval hearing, at which evidence and argument concerning the

fairness, adequacy, and reasonableness of the settlement may be presented and class members may be

heard regarding the settlement. See Dunk v. Ford Motor Co., 48 Cal.App.4th 1794, 1801 (1996);

Manual for Complex Litigation, Second §30.44 (1993).

The question presented on an application for preliminary approval of a proposed class action

settlement is whether the proposed settlement is “within the range of possible approval.” Manual for

Complex Litigation, Second §30.44 at 229; Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982).3

Preliminary approval is merely the prerequisite to giving notice so that “the proposed settlement . .

. may be submitted to members of the prospective Class for their acceptance or rejection.” Philadelphia

Housing Authority v. American Radiator & Standard Sanitary Corp., 323 F. Supp. 364, 372 (E.D. Pa.

1970). There is an initial presumption of fairness when a proposed settlement, which was negotiated

at arm's length by counsel for the Class, is presented for court approval. Newberg, 3d Ed., §11.41, p.11-

88. However, the ultimate question of whether the proposed settlement is fair, reasonable and adequate

is made after notice of the settlement is given to the Settlement Class and a final settlement hearing is

held by the Court.


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A. The Role Of The Court In Preliminary Approval Of A Class Action Settlement

The approval of a proposed settlement of a class action suit is a matter within the broad

discretion of the trial court. Wershba v. Apple Computer, Inc., 91 Cal.App.4th 224, 234-235 (2001);

Dunk v. Ford Motor Co. 48 Cal.App.4th 1794 (1996). Preliminary approval does not require the trial

court to answer the ultimate question of whether a proposed settlement is fair, reasonable and adequate.

That determination is made only after notice of the settlement has been given to the class members and

after they have been given an opportunity to voice their views of the settlement or to be excluded from

the settlement. 3B J. Moore, Moore's Federal Practice §§23.80 - 23.85 (2003).

In considering a potential settlement for preliminary approval purposes, the trial court does not

have to reach any ultimate conclusions on the issues of fact and law which underlie the merits of the

dispute, and need not engage in a trial on the merits. Wershba, supra, 91 Cal.App.4th at 239-40; Dunk,

supra, 48 Cal.App. 4th at 1807. The question whether a proposed settlement is fair, reasonable and

adequate necessarily requires a judgment and evaluation by the attorneys for the parties based upon a

comparison of “‘the terms of the compromise with the likely rewards of litigation.’” Weinberger v.

Kendrick, 698 F.2d 61, 73 (2d Cir. 1982), cert. denied 464 U.S. 818 (1983) (quoting Protective Comm.

for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424-25 (1968)).

With regard to class action settlements, the opinions of counsel should be given considerable

weight both because of counsel’s familiarity with this litigation and previous experience with cases

such as these. Officers for Justice v. Civil Service Com'n of City and County of S.F., 688 F.2d 615, 625

(9th Cir. 1982); In re Wash. Public Power Supply System Sec. Litig., 720 F. Supp. 1379, 1392 (D. Ariz.

1989); Kirkorian v. Borelli, 695 F. Supp. 446, 451 (N.D. Cal. 1988); Weinberger, 698 F.2d at 74. For

example, in Lyons v. Marrud, Inc., [1972-1973 Transfer Binder] Fed. Sec. L. Rep. (CCH) Paragraph

93,525 (S.D.N.Y. 1972), the court noted that “[e]xperienced and competent counsel have assessed these

problems and the probability of success on the merits.... The parties’ decision regarding the respective

merits of their position has an important bearing.” Id. at ¶ 92,520.

B. Factors To Be Considered In Granting Preliminarily Approval

A number of factors are to be considered in evaluating a settlement for purposes of preliminary

approval. No one factor should be determinative, but rather all factors should be considered. These


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criteria have been summarized as follows:

If the proposed settlement appears to be the product of serious, informed, noncollusivenegotiations, has no obvious deficiencies, does not improperly grant preferentialtreatment to class representatives or segments of the class, and falls within the range ofpossible approval, then the court should direct that notice be given to the class membersof a formal fairness hearing, at which evidence may be presented in support of and inopposition to the settlement.

Manual of Complex Litigation, Second §30.44, at 229. Here, the settlement meets all of these criteria.

1. The Settlement is the Product of Serious, Informed and Noncollusive Negotiations

This settlement is the result of arms-length and hard-fought negotiations. Defendant has

expressly denied and continues to deny any wrongdoing or legal liability arising out of the conduct

alleged in the Lawsuit. Nonetheless, Defendant has concluded that it is desirable that this Lawsuit be

settled in the manner and upon the terms and conditions set forth in the Agreement in order to avoid

the expense, inconvenience, and burden of further legal proceedings, and the uncertainties of trial and

appeals. Defendant has determined that it is desirable and beneficial to put to rest the claims of the

Settlement Class.

Settlement negotiations took place before David Rotman, one of the preeminent mediators of

wage and hour class actions in California. In preparation for the mediation, Defendant provided Class

Counsel with all of the necessary data, including time records and payroll information for the members

of the Class. Plaintiffs analyzed the data with the assistant of their damages expert, Desmond, Marcello

& Amster ("DM&A"), prepared damage estimates, and submitted a mediation brief to Mr. Rotman.

The all-day mediation session held on November 9, 2010 was contentious and arm's length, and

ultimately resulted in a mediator's settlement proposal which the parties accepted. Decl. Nordrehaug

at ¶5. Plaintiff and Class Counsel believe that this settlement is fair, reasonable and adequate.

As consideration for this Settlement, Defendant has agreed to pay the amount of six hundred

and twenty-five thousand dollars ($625,000). This payment will settle all issues pending in the

litigation between the Plaintiffs, on the one hand, and the Defendant, on the other hand, including but

not limited to, all payments to the Settlement Class, attorney’s fees, litigation expenses, Service

Payments to the Plaintiffs, the PAGA payment, and the expenses of the Claims Administrator. Decl.

Nordrehaug at ¶3.


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Class Counsel has conducted a thorough investigation into the facts of the class action and has

diligently pursued an investigation and discovery as to the claims against Defendant. The amount to

be paid to each Settlement Class member will be based upon his or her workweeks during the Class

Period. Based on Defendant’s data and their own independent investigation and evaluation, Class

Counsel is of the opinion that the settlement with Defendant for the consideration and on the terms set

forth in the Agreement is fair, reasonable, and adequate and is in the best interest of the class in light

of all known facts and circumstances, including the risk of significant delay, defenses asserted by

Defendant, the possibility that little or no monetary relief could be awarded at trial, and numerous

potential appellate issues. Decl. Nordrehaug, ¶¶ 5 and 15.

Here, there can be dispute that the litigation has been hard-fought with aggressive and capable

advocacy on both sides. Accordingly, “[t]here is likewise every reason to conclude that settlement

negotiations were vigorously conducted at arms’ length and without any suggestion of undue

influence.” In re Wash. Public Power Supply System Sec. Litig., 720 F. Supp. at 1392.

2. The Settlement Has No "Obvious Deficiencies" and Falls Well Withinthe Range for Approval

The proposed Settlement herein has no "obvious deficiencies" and is well within the range of

possible approval. All Settlement Class members will receive an opportunity to participate in and

receive payment.

In October 2010, the damage estimates to compensate for the amount due for the unpaid

overtime was calculated by Desmond, Marcello & Amster (“DM&A”), Plaintiffs’ damage expert, based

upon the time record and payroll information obtained from Defendant. Decl. Nordrehaug at ¶6. For

the employees in the Settlement Class whose claims are at issue here, the compensation owed to the

members of the class for unpaid overtime equaled $947,328. Once estimates for meal break

compensation, wage statement penalties, waiting time penalties and other statutory penalties are

included, the total maximum damage estimates was $1.56 million. Decl. Nordrehaug at ¶6.

The settlement of $625,000.00 represents at least 65% of the total unpaid overtime, and 40%

of the maximum value of all claims and penalties, assuming these amounts could be proven at trial.

Clearly the goal of this litigation to obtain payment for the unpaid vacation has been met. Decl.


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4 See also Dunleavy v. Nadler (In re Mego Fin. Corp. Sec. Litig.), 213 F.3d 454, 459 (9th Cir.2000) approving settlement which represented “roughly one-sixth of the potential recovery”);Hopson v. Hanesbrands Inc., 2009 WL 928133 (N.D. Cal. 2009) (approving settlement where thepayment “represents approximately 30% of the maximum expected lost wages and penalties shouldPlaintiffs prevail.”); Barcia v. Contain-A-Way, Inc., 2009 WL 587844 , *3 (S.D. Cal. 2009)(approving settlement of overtime wage class action where the recovery was within the 25% to35% benchmark established in Glass).


Nordrehaug, ¶6.

In Glass v. UBS Fin. Servs., 2007 U.S. Dist. LEXIS 8476 (N.D. Cal. 2007) the federal district

court for the Northern District of California approved a settlement of an action claiming unpaid

overtime wages where the settlement amount constituted only approximately 25% to 35% of the

estimated actual loss to the class. Here the settlement consideration rises well above this range of

approved percentages based on the estimated actual loss to the class. Decl. Nordrehaug at ¶6. In Glass,

the federal court ruled that the settlement which represented approximately 25% to 35% of the loss

to the class was fair, reasonable, and adequate. Id. at 28.4 As a result, this settlement which represents

65% to 40% of the loss to the class is most certainly entitled to preliminary approval.

Where both sides face significant uncertainty, the attendant risks favor settlement. Hanlon v.

Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). Here, a number of defenses asserted by

Defendant presented threats to the claims of Plaintiffs and the other Class Members. Defendant likely

would assert that Defendant’s employment practices complied with all applicable Labor laws. For

example, Defendant contended that Class Members were barred from recovery by the "administrative

exemption" because they perform work consisting of representing the employer with the public,

negotiating on behalf of the company, advising and consulting with clients, and engage in sales

promotion. See, e.g., Hogan v. Allstate Ins. Co., 361 F.3d 621, 627 (11th Cir. 2004) (Court determined

that for insurance salespersons, promoting sales and advising customers regarding sales were

administrative rather than production tasks). Defendant also contended that many of the employees

were subject to the commissioned salesperson exemption. Defendant argued that, irrespective of the

exemption arguments, that the Defendant’s potential overtime liability was minimal because the

employees only worked during regular business hours. As to the expense reimbursement claim,

Defendant contended that none of the claimed expenses, which entirely consisted of home internet


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connection costs, were reasonably incurred since employees only worked during regular business hours

or were actually incurred for work. As to the meal and rest break claims, Defendant maintained written

policies permitting and encouraging employees to take meal and rest periods, and therefore could argue

that Defendant authorized, permitted and provided meal periods and rest breaks to its Sales

Representatives. Decl. Nordrehaug at ¶20.

Defendant could also contest class certification by arguing that the question of whether a

particular employee had unpaid overtime requires an individual case by case analysis, and the proof

of injury would require individualized evidence which would preclude class certification. See e.g. Ali

v. U.S.A. Cab, Ltd., 176 Cal. App. 4th 1333, 1350 (2009). There was a significant risk that, if the

Actions were not settled, Plaintiffs would be unable to obtain class certification and thereby not recover

on behalf of any employees other than themselves. In Dunbar v. Albertson's, Inc., 141 Cal. App. 4th

1422, 1431-32 (2006), the California Court of Appeal affirmed an order denying class certification to

a class of employees who claimed that they were denied overtime pay because whether the executive

exemption applied would have had to have been individually determined for each class member which

meant that common issues did not predominate. Similarly, here Defendant would have certainly argued

in opposing class certification that individual issues predominated because the applicability of the

administrative exemption would have to be separately determined for each Class Member based on

their individual experience. While other cases have approved class certification in overtime wage

claims, class certification in this action would have been hotly disputed and was by no means a

foregone conclusion. Accordingly, class-wide liability was far from certain. Decl. Nordrehaug at ¶21.

After vigorous negotiations, the parties agreed to the Agreement recognizing the potential risks,

both sides would face if litigation if this Action continued. As the federal court held in Glass, where

the parties faced uncertainties similar to those in this litigation:

In light of the above-referenced uncertainty in the law, the risk, expense, complexity,and likely duration of further litigation likewise favors the settlement. Regardless ofhow this Court might have ruled on the merits of the legal issues, the losing party likelywould have appealed, and the parties would have faced the expense and uncertainty oflitigating an appeal. "The expense and possible duration of the litigation should beconsidered in evaluating the reasonableness of [a] settlement." See In re Mego FinancialCorp. Securities Litigation, 213 F.3d 454, 458 (9th Cir. 2000). Here, the risk of furtherlitigation is substantial.


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Id. at *12.

3. The Settlement Does Not Improperly Grant Preferential Treatment To ClassRepresentatives or Segments Of The Settlement Class

The relief provided in the settlement will benefit all members of the Settlement Class equally.

The settlement does not grant preferential treatment to Plaintiffs or segments of the Settlement Class

in any way. All Settlement Class Members will receive the same opportunity to participate in and

receive payment. The Settlement Share for each Claimant will be calculated by (a) dividing the Net

Settlement Total by the total number of work weeks in a covered position during the Class Period for

all Class Members and (b) multiplying the result by each individual Claimant’s work weeks in a

covered position during the Class Period. (Agreement at §III(C)(1).) Decl. Nordrehaug at ¶4.

In addition, the Plaintiffs will apply to the Court for service awards in the gross amount of Five

Thousand Dollars and Zero Cents ($5,000.00) each, in consideration for the services rendered on behalf

of the Settlement Class. The $5,000 service award amount to be paid to each of the Plaintiffs is

reasonable and falls at the low end of service awards. The Plaintiffs performed their duties admirably

by working with Class Counsel, appearing for deposition, responding to discovery and assisting with

mediation. Decl. Nordrehaug at ¶25(d). The requested Plaintiff service awards are well within the

accepted range of awards. See e.g. Louie v. Kaiser Foundation Health Plan, Inc., 2008 WL 4473183,

*7 (S.D.Cal. Oct. 06, 2008) (awarding $25,000 service award to each of six plaintiffs in overtime class

action); Glass v. UBS Fin. Servs., 2007 WL 221862, *16-17 (N.D.Cal. Jan. 27 2007) (awarding

$25,000 service award in overtime class action and a pool of $100,000.00 in enhancements ); Van

Vranken v. Atlantic Richfield Co., 901 F.Supp. 294, 299-300 (N.D. Cal. 1995) (awarding incentive

award of $50,000); In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 373 (6th Cir.

2003); Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998). As explained in Glass, service awards

are routinely awarded to class representatives to compensate the employees for the time and effort

expended on the case, for the risk of litigation, for the fear of suing an employer and retaliation there

from, and to serve as an incentive to vindicate the statutory rights of all employees. 2007 WL 221862

at *16-17.

4. The Stage Of The Proceedings Are Sufficiently Advanced To Permit PreliminaryApproval Of The Settlement


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The stage of the proceedings at which this settlement was reached also militates in favor of

preliminary approval and ultimately, final approval of the settlement. Class Counsel has conducted a

thorough investigation into the facts of the class action. Class Counsel began investigating the Class

Members’ claims before this action was filed. Class Counsel conducted significant discovery,

including document requests including three (3) sets of Requests for Production, three (3) sets of

Requests for Admissions, three (3) sets of Special Interrogatories, and three (3) sets of Form

Interrogatories. Class Counsel conducted two (2) depositions of the corporate designated witnesses,

and all of the Plaintiffs were deposed. Class Counsel obtained production of all relevant business and

payroll records produced through both formal and informal discovery. Class Counsel engaged in an

extensive review and analysis of the relevant documents and data with the assistance of experts.

Accordingly, the agreement to settle did not occur until Class Counsel possessed sufficient information

to make an informed judgment regarding the likelihood of success on the merits and the results that

could be obtained through further litigation. Decl. Nordrehaug at ¶22.

Based on the foregoing data and their own independent investigation and evaluation, Class

Counsel is of the opinion that the settlement with Defendant for the consideration and on the terms set

forth in the Agreement is fair, reasonable, and adequate and is in the best interest of the class in light

of all known facts and circumstances, including the risk of significant delay, defenses asserted by

Defendant, and numerous potential appellate issues. There can be no doubt that Class Counsel

possessed sufficient information to make an informed judgment regarding the likelihood of success on

the merits and the results that could be obtained through further litigation. Decl. Nordrehaug ¶¶ 23-24.

In Glass, the Northern District of California granted final approval of an overtime and meal

wage action although in Glass no formal discovery had been conducted prior to the settlement:

Here, no formal discovery took place prior to settlement. As the Ninth Circuit hasobserved, however, "[i]n the context of class action settlements, 'formal discovery is nota necessary ticket to the bargaining table' where the parties have sufficient informationto make an informed decision about settlement." See In re Mego Financial Corp.Securities Litigation, 213 F.3d at 459.

Glass, 2007 U.S. Dist. LEXIS 8476 at *14.

Here, Class Counsel was in a significantly stronger position to evaluate the fairness of this


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settlement than in Glass because they conducted formal discovery and informal discovery, as well as

independent investigations and due diligence to confirm the accuracy of the information supplied by

Defendant.

V. THE CLASS IS PROPERLY CERTIFIED FOR SETTLEMENT PURPOSES

Plaintiffs contend, and Defendant does not dispute for settlement purposes only, that the

proposed settlements meet all of the requirements for class certification under California Code of Civil

Procedure §382 as demonstrated below, and therefore, the Court may appropriately approve the

Settlement Class as defined in the Agreement. (Agreement at §III(E).) This Court should conditionally

certify a settlement class for settlement purposes only that consists of “all persons who worked in

California for 8x8, Inc. for one or more weeks between January 27, 2006 and June 30, 2010 as Sales

Representatives, Account Managers and/or Account Executives and who were classified as “exempt”

from overtime.” (Agreement at §I(F).)

A. California Code of Civil Procedure §382

Plaintiffs seek certification of this Action for settlement purposes under California Code of Civil

Procedure § 382. The California Supreme Court has summarized the standard for determining whether

class certification is appropriate as follows:

Code of Civil Procedure Section 382 authorizes class actions “when thequestion is one of a common or general interest, of many persons, orwhen the parties are numerous, and it is impracticable to bring them allbefore the court....” The party seeking certification has the burden toestablish the existence of both an ascertainable class and a well-definedcommunity of interest among class members. (citations omitted). The“community of interest” requirement embodies three factors: (1)predominant common questions of law or fact; (2) class representativeswith claims or defenses typical of the class; and (3) class representativeswho can adequately represent the class.

Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319, 326 (2004).

While Defendant reserves all rights to dispute that the Plaintiffs can satisfy any of these

requirements, the Parties agree that Defendant will not dispute that these requirements may be satisfied

in this case for purposes of this agreed-upon settlement and therefore, the proposed Settlement Class

should be certified for purposes of settlement. (Agreement at §III(E).)


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B. The Proposed Class Is Ascertainable and Numerous

Plaintiff brings this action on behalf of current and former employees of Defendant. All of these

employees are ascertainable because the exact number of class members can readily be determined

through examination of Defendant’s employee and payroll files. Given that the class consists of more

than one hundred (100) members, numerosity is clearly satisfied. See Bowles v. Superior Court, 44

Cal.2d 574 (1955) (class with 10 members sufficiently numerous); Rose v. City of Hayward, 126

Cal.App.3d 926, 934 (1981) (class of 48 members satisfies numerosity requirement.)

Here, the approximately 166 current and former employees that comprise the class can be

identified and are sufficiently numerous for class certification. Decl. Nordrehaug at ¶25(a).

C. Common Issues of Law and Fact Predominate

Predominance of common issues of law or fact does not require that the common issues be

dispositive of the entire controversy or even that they be dispositive of all liability issues. 1 Newberg

on Class Actions, Section 4.25 at 4-82, 4-83 (1992). “Predominance is a comparative concept, and ‘the

necessity for class members to individually establish eligibility and damages does not mean individual

fact questions predominate.’” Sav-On, 34 Cal. 4th at 334 (citation omitted).

Commonality exists if there is a predominant common legal question regarding how an

employer’s policies impact its employees. Ghazaryan v. Diva Limousine, Ltd., 169 Cal. App. 4th

1524, 1536 (2008) (“[T]he common legal question remains the overall impact of Diva's policies on its

drivers, not whether any one driver, through the incidental convenience of having a home or gym

nearby to spend his or her gap time, successfully finds a way to utilize that time for his or her own

purposes.”) Whether Plaintiff is likely to prevail on their theory of recovery is irrelevant at the

certification stage since the question of certification is “essentially a procedural one that does not ask

whether an action is legally or factually meritorious.” Linder v. Thrifty Oil Co., 23 Cal. 4th 429, 439-

440 (2003).

Here, common questions of law and fact, as alleged by the Plaintiffs, are present, specifically

the question of whether the sales employees employed by Defendant were “exempt” from overtime

under California law. Plaintiffs contend that Defendant had engaged in a uniform course of conduct

with respect to the Settlement Class and the only question is whether Defendant’s conduct supports a


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meritorious claim for exemption misclassification. Such suits challenging the legality of a standardized

course of conduct are generally appropriate for resolution by means of a class action. Decl. Nordrehaug

at ¶ 25(b) and (e). Defendant does dispute that commonality actually exists, but will not oppose such

a finding for purposes of this settlement only.

D. The Claims of the Plaintiffs Are Typical of the Class Claims

The typicality requirement requires the Plaintiffs to demonstrate that the members of the class

have the same or similar claims as the named Plaintiffs. “The typicality requirement is met when the

claims of the named Plaintiff arise from the same event or are based on the same legal theories.” Tate

v. Weyerhaeuser Co., 723 F.2d 598, 608 (8th Cir. 1983). In Hanlon v. Chrysler Co., 150 F.3d 1011 (9th

Cir. 1998), the Ninth Circuit held that “[u]nder the rule's permissive standards, representative claims

are ‘typical’ if they are reasonably coextensive with those of absent class members; they need not be

substantially identical.” 50 F.3d at 1020.

In the instant case, there can be little doubt that the typicality requirement is fully satisfied. The

Plaintiffs, like every other member of the Class, were employed by Defendant and classified as

"exempt" by Defendant. The Plaintiffs performed the same type of sales and consulting work as the

other members of the Class. The Plaintiffs, like every other member of the Class, claim unpaid

overtime wages for work performed in the same job classification. Thus, the claims of both the

Plaintiffs and the Members of the Class arise from the same course of conduct by the Defendant,

involve the same work performed, and are based on the same legal theories. Decl. Nordrehaug at

¶25(c). The typicality requirement is met as to the common issues presented in this case. While

Defendant disputes that Plaintiffs have claims typical of the individuals they purports to represent,

Defendant does not oppose a finding of typicality for purposes of this settlement only.

E. The Class Representation Fairly and Adequately Protected the Class

Plaintiffs contend that the Class Members are adequately represented here because the named

Plaintiffs and representing counsel (a) do not have any conflicts of interest with other class members,

and (b) will prosecute the case vigorously on behalf of the class. Hanlon, 150 F.3d at 1020. This

requirement is met here. First, Plaintiffs are well aware of their duties as the representatives of the class

and actively participated in the prosecution of this case to date. They effectively communicated with


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counsel, providing documents to counsel and participated extensively in discovery, investigation and

negotiations in the Action. Second, the Plaintiffs retained competent counsel who have extensive

experience in employment class actions. Decl. Nordrehaug at ¶¶ 25(d) and 26. Blumenthal,

Nordrehaug & Bhowmik has extensive experience in class action litigation in California, and has been

involved as class counsel in over two hundred (200) class action matters, including many wage and

hour class actions. (See Resume, attached as Exhibit 2 to the Decl. Nordrehaug.) Defendant disputes

that the adequacy requirement is satisfied, but will not oppose such a finding for purposes of this

settlement only.

F. The Superiority Requirement Is Met

To certify a class, the Court must also determine that a class action is superior to other available

methods for the fair and efficient adjudication of the controversy. “Where classwide litigation of

common issues will reduce litigation costs and promote greater efficiency, a class action may be

superior to other methods of litigation.” Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.

1996). As courts have previously observed:

Absent class treatment, each individual plaintiff would present in separate, duplicativeproceedings the same or essentially the same arguments and evidence, including experttestimony. The result would be a multiplicity of trials conducted at enormous expenseto both the judicial system and the litigants. “It would be neither efficient nor fair toanyone, including defendants, to force multiple trials to hear the same evidence anddecide the same issues.”

Sav-On, 34 Cal. 4th at 340, citing Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 67 (S.D. Ohio 1991).

Here, a class action is the superior mechanism for adjudication of the claims as pled by the

Plaintiffs. While Defendant disputes that the superiority requirement may be satisfied, it does not

dispute such a finding for purposes of this settlement only.

VI. THE PROPOSED METHOD OF CLASS NOTICE IS APPROPRIATE

The Court has broad discretion in approving a practical notice program. The parties have agreed

upon procedures by which the Settlement Class will be provided with written notice of the Agreement

similar to that approved and utilized in hundreds of class action settlements. No later than 14 days after

the Court enters its order granting Preliminary Approval of the Settlement, Defendant will provide to


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the Claims Administrator an electronic database containing for each Class Member his or her Class

Data. (Agreement at §III(E)(2)(a).)

Using best efforts to mail the Notice Packets as soon as possible, and in no event later than 14

days after receiving the Class Data, the Claims Administrator will mail the Notice Packets to all Class

Members via first-class regular U.S. Mail using the mailing address information provided by

Defendant, unless modified by any updated address information that the Claims Administrator obtains

in the course of administration of the Settlement. Prior to mailing the Notice Packets, the Administrator

shall conduct a National Change of Address database search to verify and update addresses for Class

Members. (Agreement at §III(E)(2)(b).) If a Notice Packet is returned with forwarding address, the

Claims Administrator will promptly, and not longer than five (5) business days from receipt of the

returned Notice Packet, re-mail the Notice Packet to the forwarding address. If a Notice Packet is

returned with no forwarding address, the Claims Administrator will conduct a skip trace or computer

search to attempt to locate an updated address. If an updated address is located, the Claims

Administrator will re-mail the Notice Packet to the updated address within five (5) business days.

(Agreement at §III(E)(2)(c)-(d).)

The Class Members will have 60 days after the date on which the Claims Administrator mails

the Notice Packets to complete and submit to the Claims Administrator the Claim Form. The Claim

Form shall include instructions on how to submit the Claim Form, and shall notify Class Members that

the Claim Form must be completed, signed and postmarked no later than the deadline for a Class

Member to be eligible to receive any Settlement Share. (Agreement at §III(E)(3).)

The Notice documents, drafted jointly and agreed upon by the Parties through their respective

counsel and to be approved by the Court, includes all relevant information. The Notice documents will

include, among other information: (i) information regarding the lawsuit; (ii) the impact on the rights

of the Class if they do not opt out; (iii) information to the members of the Class regarding how to opt

out of the Class; (iv) the amount of the Settlement Total; (v) the amount of the Class Counsel Fees

Payment and the Class Counsel Litigation Expenses Payment; (vi) the amounts of the Class

Representatives’ Service Payment; (vii) the amounts being paid to the LWDA; and (vii) the

administration fees to be paid to the Claims Administrator.


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The Notice explains that Class Members who wish to participate in the settlement shall

complete and return the Claim Form pursuant to the instructions contained therein by first class mail

or equivalent, postage paid. The Notice also provides that any Class Member may choose to opt out

of the Class, and that any such person who chooses to opt out of the Class will not be entitled to any

recovery obtained by way of the settlement and will not be bound by the settlement or have any right

to object, appeal or comment thereon. The Notice states that all objections to the Settlement by anyone,

including members of the Settlement Class, must be filed in the Court and served upon all counsel of

record by no later than forty-five (45) days from the mailing of the Notice.

This notice program was designed to meaningfully reach the largest possible number of

potential Settlement Class Members and advises them of all pertinent information concerning the

settlement. The mailing and distribution of the Notice satisfies the requirements of due process, and

is the best notice practicable under the circumstances and constitutes due and sufficient notice to all

persons entitled thereto. The proposed Notice is accurate and informative. The Notice provides

information on the terms and provisions of the settlement; the benefits that settlement provides for

Settlement Class Members; the date, time and place of the final settlement approval hearing; and the

procedure and deadlines for submitting comments, objections and requests for exclusion and complies

with Rules of Court 3.766 and 3.769(f).

VII. CONCLUSION

Plaintiffs respectfully requests that the Court preliminarily approve the proposed settlement,

schedule the Final Fairness Hearing, and sign the proposed Preliminary Approval Order, which is

submitted herewith.

Dated: April 7, 2011 BLUMENTHAL, NORDREHAUG & BHOWMIK

By: /s/ Norman B. Blumenthal Norman B. BlumenthalKyle R. NordrehaugAttorneys for Plaintiffs


Memorandum in Support of Preliminary Approval of California Wage & Hour Class Action Against 8x8

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