ROTECTION AW ROUP - Violation Tracker · 410 West Arden Avenue, Suite 203 Glendale, California 91203 Tel: (818) 265-1020 / Fax: (818) 265-1021 Heather Davis (Cal. State Bar No. 239372)

DECLARATION OF HEATHER DAVIS ISO PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL

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Edwin Aiwazian (Cal. State Bar No. 232943)

[email protected]

Arby Aiwazian (Cal. State Bar No. 269827)

[email protected]

L A W Y E R S for J U S T I C E, PC

410 West Arden Avenue, Suite 203

Glendale, California 91203

Tel: (818) 265-1020 / Fax: (818) 265-1021

Heather Davis (Cal. State Bar No. 239372)

[email protected]

PROTECTION LAW GROUP LLP

136 Main Street, Suite A

El Segundo, California 90245

Tel: (424) 290-3095 / Fax: (866) 264-7880 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA DERRICK BYRD; RANDY MAUNAKEA, individually, and on behalf of other members of the general public similarly situated and on behalf of other aggrieved employees pursuant to the California Private Attorneys General Act, Plaintiff, vs. MASONITE CORPORATION, an unknown business entity; and DOES 1 through 100, inclusive, Defendants.

Case No.: 5:16-cv-00035-JGBKK DECLARATION OF HEATHER DAIVS ISO PLAINTIFFS’ MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT Judge: Hon. Jesus G. Bernal Date: December 11, 2017 Time: 9:00 a.m. Courtroom.: 1

Complaint Filed: November 17, 2015 FAC Filed: March 18, 2016

Case 5:16-cv-00035-JGB-KK Document 86-1 Filed 11/06/17 Page 1 of 67 Page ID #:1500

DECLARATION OF HEATHER DAVIS ISO PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL- 2

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DECLARATION OF HEATHER M. DAVIS, ESQ.

I, Heather M. Davis, declare as follows:

1. I am an attorney duly licensed to practice law before all courts of the

State of California and all United States District Courts in the State of California.

I am a partner of the Protection Law Group, LLP, attorneys of record for named

Plaintiffs Randy Maunakea and Derrick Byrd. I have personal knowledge of the

facts stated herein and if called as a witness I could and would competently testify

thereto.

2. I am a duly licensed attorney and have been a member of the Colorado

State Bar since 1998, the California State Bar since 2005 and the Arizona State

Bar since 2007. I graduated from the University of Denver School of Law in 1998

and I am licensed to practice before all courts of the State of California and

Colorado as well as the State of Arizona and District Courts throughout the

country.

CLASS COUNSEL’S BACKGROUND AND EXPERIENCE

3. Prior to opening my law firm, I developed particular experience in the

area of wage and hour litigation. For instance, between 2007 and 2013, I joined

the law firm of Littler Mendelson, P.C., the largest labor and employment law firm

in the United States

4. During my employment with Littler Mendelson, P.C., I continued my

practice of employment law and was responsible for and defended dozens of

complex class actions involving some of the largest representative and class

actions brought under the California Labor Code, including meal and rest break

violations, overtime, minimum wage claims, off the clock work and other related

wage claims. My practice included the management of dozens of class actions.

My management of these cases included taking and defending hundreds of

depositions, interviewing hundreds of putative class members, as well as extensive

state, federal and appellate briefing on hundreds of wage and hour issues involving

class actions.

5. During my employment at Littler Mendelson, I played a significant



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role in the class actions for which I was responsible. In particular, I was often in

charge of leading the strategy of the cases and drafting all of the briefs. I received

a wide-array of wage and hour class action experience performing the following

types of tasks: drafting demurrers; motions to strike and/or dismiss; removing

actions from state court to federal court; drafting and responding to written

discovery; drafting and opposing discovery related motions; arguing discovery

related motions; drafting motions to consolidate related matters; interviewing

putative class members and obtaining declarations in connection with class

certification; drafting oppositions to motions for class certification; drafting

motions for decertification following class certification; conducting exposure

analyses to assess the strengths and weaknesses of asserted claims, the likelihood

of prevailing at class certification and potential damages resulting from such

claims; drafting mediation briefs; serving as the primary contact to in-house

counsel; deposing named plaintiffs and putative class members; deposing retained

expert witnesses; and defending the depositions of corporate witnesses. In short,

I played an integral role in all aspects of litigation from the inception of a matter

through and beyond class certification.

6. During my practice in other jurisdictions and continuing today, I have

been primarily devoted to working in employment law and on complex class

action and representative litigation and multi-plaintiff work.

7. Protection Law Group LLP is a law firm specifically devoted to the

representation of employees against Employers in California involving claims

relating to violations of the California Labor Code, including claims for failure to

pay all wage s owed, failure to pay overtime premiums, failure to ay meal and rest

premiums and failure to provide accurate wage records. The practice of

employment law is a very specific, narrow field which requires diligence in an

ever-evolving field of substantive and procedural law.

8. Although not exhaustive, below is a representative list of several of

the wage and hour class actions that I performed substantial work on while I was

an attorney with Littler Mendelson, including, but not limited to: Villacres v. ABM



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Industries, Inc., 189 Cal.App.4th 562 (2010); Brizuela v. Copart, Inc.,

CIVRS11101592, (San Bernardino Superior Court class action settlement);

Augustus v. ABM Industries, Inc., BC336416, 233 Cal.App.4th 1065 (2014),

review granted; Tagaki v. United Airlines, 2:11-CV9191 (Central District class

action settlement), Babasa v. Comerica, Inc., 3:11-CV00595, Leyva v. Medline

Industries, Inc. 5:11-cv-00164 (Central District), Blue v. Coldwell Banker

Residential Brokerage Co., BC417335, (Los Angeles Superior Court, class action

settlement), and Acosta v. Texwood Industries, Inc., 2:07-cv-03237-DDP-PLA

(Central District class action settlement).

9. Since opening my firm, I have served as lead counsel or co-class

counsel in several wage and hour class and/or representative actions seeking wages

and penalties owed on behalf of employees including, but not limited to the

following:

a. Morera v. Continental Assets Mgmt., BC502003, (Los Angeles

Superior Court wage and hour Class action appointing

Protection Law Group, LLP as class counsel in settlement);

b. Fong et al. v. Regis Corporation, 3:13-cv-13-04497 VC,

(United States District Court, Northern District of California,

preliminarily approving 5.75 Million wage and hour class

action settlement and appointment Protection Law Group, LLP

as class counsel in settlement);

c. Espinoza v. Financial Partners Credit Union, BC502165 (Los

Angeles Superior Court wage and hour Class action appointing

Protection Law Group, LLP as class counsel in settlement);

d. Kesheshian, et al v. S. Cal. Logistics, BC557981 (Los Angeles

Superior Court wage and hour class action appointing

Protection Law Group as Class Counsel in settlement)

e. Sampson v. 24 HR Homecare LLC, BC586019 (Los Angeles

County Superior Court wage and hour class action appointing

Protection Law Group as Class Counsel in settlement).



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f. Kashanian v. Plus Labs Inc. 2016-1-cv-294231 (Santa Clara

Superior Court wage and hour class action appointing

Protection Law Group, LLP as class counsel in settlement)

g. Abdelaziz v. Auto Rescue, RIC1509900 (Riverside Superior

Court wage and hour class action appointing Protection Law

Group LLP as class counsel in settlement);

h. Eiden v. Olive & June LLC, BC654685 (Los Angeles Superior

Court wage and hour class action appointing Protection Law

Group LLP as class counsel in settlement)

i. Khan v. FPI Management, Inc., BC541747 (Los Angeles

Superior Court wage and hour class action)

j. Cadena v. Tetra Property Management, 257425 (Tulare County


k. Glenn v. Decron Properties Corp., BCC 578035 (Los Angeles

Superior Court wage and hour class action);

l. Holzer v. Wedbush Securities, Inc., BC 550462 (Los Angeles


m. Utterbach v. Daylight Transport LLC, BC600994 (Los Angeles


n. Hadrick v. Woodmont Real Estate, CIV530405 (San Mateo


10. In addition, LAWYERS for JUSTICE, P.C. also represented Plaintiffs

and the class in this case and devoted substantial time toward this litigation.

LAWYERS for JUSTICE, P.C is law firm devoted exclusively to the

representation of employees in class-wide employment disputes. There are no

conflicts of interest between class counsel and the settlement class members.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

11. Defendant Masonite Corp. (Defendant) is a manufacturer and

merchandiser of interior and exterior doors, door components, and entry systems.



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Among its customers are distributors, jobbers, home center chains, and wholesale

and building supply dealers in North, Central, and South America, Ireland, the

United Kingdom, Israel, Europe, and Asia. Defendant lauds itself as one of the

largest manufacturers of doors in the world, and operates four (4) plants in the

State of California and additional plants throughout the country.

12. Plaintiffs Derrick Byrd and Randy Maunakea are former Masonite

employees. Derrick Byrd worked for Masonite from approximately March 2013

to October 2014 as an hourly-paid Assembler. Randy Maunakea worked for

Masonite building doors from approximately November 2013 to May 2016. Both

Mr. Byrd and Mr. Maunakea worked at Masonite’s plant in Moreno Valley,

California.

13. On November 17, 2015, Plaintiff Byrd filed a Complaint in the

Superior Court of California, County of Riverside. The complaint alleged

violations of the following provisions of California law: (1) failure to pay overtime

pursuant to Labor Code sections 510 and 1198; (2) failure to provide meal period

premiums in violation of Labor Code sections 226.7 and 512(a); (3) failure to

provide rest period premiums in violation of Labor Code section 226.7; (4) failure

to pay minimum wages pursuant to Labor Code sections 1194, 1197, and 1197.1;

(5) failure to pay timely wages upon termination in violation of Labor Code

sections 201 and 202; (6) failure to provide accurate and itemized wage statements

in violation of Labor Code section 226(a); (7) failure to reimburse business

expenses in violation of Labor Code sections 2800 and 2802; (8) violations of

California Business and Professions Code §§17200 et seq.; and (9) violation of

section 2698, et seq., of the Labor Code (the Private Attorney General’s Act

(PAGA)); on behalf of all current and former hourly-paid or non-exempt

individuals employed by Defendant within the State of California at any time

during the period from November 17, 2011 to July 14, 2017.

14. On January 6, 2017, Defendant removed this action to United States

District Court for the Central District of California.

15. After several motions to dismiss by Defendant and the re-filing of



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amended complaints by Plaintiffs, Defendant filed its answer on August 12, 2016.

16. While litigating these disputes Plaintiff began to engage in discovery.

On March 29, 2016, Plaintiff served Defendant requests for admission, special

interrogatories, and requests for production. Defendant responded to this

discovery on May 11, 2016. Thereafter, the parties met and conferred extensively

and on July 7, 2016, Defendant provided a supplemental production of documents.

17. Multiple depositions were taken in this matter. On June 28, 2016,

Defendant took Plaintiff’s deposition. On July 14-15, 2016, I took the deposition

of Defendants Persons Most Qualified, Human Resources Director Anna

Kubickova and Payroll Supervisor Jamie Ziegler. Following these depositions, my

office served additional document demands in August 2016.

18. During initial discovery, Defendant attempted to limit the scope of

Plaintiff’s inquiry to a single location worked at by the named Plaintiff. Defendant

objected to providing any documents or evidence outside the Moreno Valley

location

19. On August 29, 2016, the Court ordered that discovery proceed on a

class-wide basis for all California locations.

20. In September and October 2016, Defendant produced an additional

7,000 pages of documents including a 20% sampling of time and payroll records

and class-wide policy documents. In January 2017, Defendant produced a 20%

sampling of earning statements for its Stockton location.

21. Also in September 2016, Plaintiff Randy Maunakea filed a letter with

the California Labor and Workforce Development Agency to bring claims under

the Private Attorney General’s Act after Defendant contended that Plaintiff Byrd’s

claim was outside the statute of limitations. The LWDA did not respond after 60

days and on November 28, 2016, Plaintiff filed a third amended complaint adding

Plaintiff Maunakea as a class and PAGA representative.

22. On January 17, 2017, the parties attended private mediation with Mark

Rudy. Defendant produced a class-wide sampling of payroll and timekeeping data

for approximately 20% of the putative class in addition to the data formally



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produced in discovery. However, the data was in a state of disarray and in order to

prepare for the mediation, Plaintiffs were required to hire an outside consultant to

assimilate all of the data in readable forms and determine the scope.

23. In conjunction with an outside consultant, my office analyzed the

class-wide time and payroll data in preparation for mediation and also reviewed

approximately 8,000 pages of policies, work schedules, time records and payroll

records formally produced by Defendant prior to mediation.

24. Prior to mediation my office attempted to contact approximately 200

members of the putative class.

25. While the parties were unable to resolve this matter at the January

mediation, on January 24, 2017, the parties agreed to stay formal discovery while

negotiations continued.

26. In March 2017, the parties resumed formal discovery. Plaintiffs served

deposition notices for approximately 25 employees who had provided declarations

in support of Defendant’s position, re-noticed the deposition of Defendant’s

Person Most Knowledgeable, and drafted a motion to compel further testimony

which Plaintiffs intended to file with the Court. Plaintiff also resumed the process

of meeting and conferring with Defendant regarding its responses to Plaintiffs’

third set of document requests and a motion to compel would likely have been

required as both parties were adamant in their positions.

27. On April 21, 2017, the parties agreed to attend another session of

mediation with Mark Rudy. At the conclusion of a second full day of meditation,

the parties were able to reach a settlement and executed a Memorandum of

Understanding. A long form settlement agreement was eventually signed on

August 2, 2017, and my office advised the Court of the agreed upon settlement on

August 11, 2017. The long form settlement agreement, was based on the

understanding that there were approximately 700 putative class members and

100,000 workweeks.

28. However, shortly thereafter, I was contacted by Defendant’s counsel

and informed that after reviewing the class data, Defendant had determined that as



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of May 14, 2017, there were approximately 119 more class members than

originally estimated and an additional 10,243 workweeks. After review, Defendant

discovered that there were in fact 836 putative class members and 114,209

workweeks in the class period.

29. Because of this increase in workweeks exceeded 100,000, pursuant to

the terms of the Joint Stipulation and Settlement Agreement, Plaintiffs had the

right to rescind the Agreement. However, the Agreement also required that the

parties meet and confer in good faith to determine whether an upward pro rata

Adjustment of the Gross Settlement Amount was warranted. Based upon my

review and analysis of supplemental data which confirmed that there were an

additional 10,243 workweeks, I met and conferred with Defendant’s counsel about

increasing the settlement amount. After serious negotiations the parties agreed that

a pro rata increase, as contemplated in the Joint Settlement Agreement, was

warranted. Therefore, based on the additional increase in workweeks, the parties

executed an addendum to the Joint Stipulation of Class Action Settlement and

PAGA Release to increase the Gross Settlement Amount by $100,000, from

$2,425,000.00 to $2,525,000.00

SUMMARY OF THE TERMS OF SETTLEMENT

30. Plaintiffs Derrick Byrd and Randy Maunakea (“Named Plaintiffs”)

seek preliminary approval of the proposed class action settlement. Attached hereto

as Exhibit A is a true and correct copy of the parties’ Joint Stipulation of

Settlement and Release (hereinafter “Settlement Agreement” or “Agreement”).

Attached hereto as Exhibit B is a true and correct copy of the proposed Addendum

to Joint Stipulation of Class Action and PAGA Settlement and Release (hereinafter

“Addendum”). Attached hereto as Exhibit C is a true and correct copy of the

proposed Notice of Class Action Settlement.

31. Named Plaintiffs seek to provisionally certify the following class for

settlement purposes, which consists of approximately 836 current and former non-

exempt employees employed by Defendant in the state of California from

November 17, 2011 to July 14, 2017. (Agreement ¶6; Addendum 3:13-14)



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32. Subject to Court approval, Named Plaintiffs and Defendant Masonite

(“Defendant”) have agreed to settle the class claims for the Gross Settlement

Amount of $2,525,000.00. (Agreement, ¶13 Addendum 3:19-23).

33. The Gross Settlement Amount allocations are as follows:

a. Attorneys’ Fees in an amount of thirty-five percent (35%) of the Class

Settlement Amount, amounting to $883,750.00 (Agreement. ¶3;

Addendum 3:19-23);

b. Attorneys’ Costs, according to proof, not more than $65,000.00 Id.;

c. The Settlement Administration Costs, for work to be performed by

Simpluris, estimated to be $15,000 (Agreement. ¶29);

d. The Class Representative Enhancement Payments to Named Plaintiffs

in the amount of $5,000.00 each (Agreement ¶36(b));

e. The PAGA Payment in the amount of $37,500.00 which is 75% of the

PAGA Settlement Amount of $50,000.00; the remaining 25% will be

distributed to the Settlement Class as part of the Net Settlement

Amount (Agreement ¶38(a)); and

f. Net Settlement Amount of $1,513,750.00 (See Agreement ¶15)

34. The Net Settlement Amount shall be distributed to the Settlement

Class Members on a pro-rata basis based on the number of Workweeks worked

during the Class Period. (Agreement ¶42). There are an estimated 114,209

workweeks for the Class Members included in the settlement, the estimated

average payment per work week is $13.25. (See Addendum 3:13-14) The

estimated average payment to each Settlement Class Member will vary based on

the number of workweeks the member worked, but assuming an equal number of

workweeks across the class would provide an average settlement payment of

$1,810.70.

35. This proposed Settlement resolves all of the Settlement Class

Members’ claims against Defendants arising from the same facts and claims

alleged in the complaint. (Agreement ¶23).

36. The proposed settlement will release all claims by the Named



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Plaintiffs against Defendant. (Agreement ¶36(b)). This expanded general release,

the work undertaken by Plaintiffs Byrd and Maunakea, and the exposure of serving

as class representatives support the granting incentive payments of $5,000 to each

Plaintiff. This payment does not bestow preferential treatment. These efforts will

be fully briefed in the motion for final approval.

THE SETTLEMENT IS REASONABLE

37. This proposed settlement resolves hotly disputed claims. Defendant

vehemently denied and opposed Plaintiffs’ allegations and maintained that at all

times it complied with California law. Regarding the unpaid overtime and

minimum wage claims Defendant argued that employees were alerted by a bell

system when they were supposed to clock-in and clock-out and that claims

involving unpaid workhouse would require an individualized inquiry. Defendant

also maintained nearly a dozen varying practices and procedures regarding its

rounding policy that increased the difficulty of establishing a uniform policy.

Defendant had ultimately changed the policy and practice for doing so on several

occasions at several different locations. Therefore, it argued that there was no

uniform policy or practice of its rounding practice. With respect to the meal period

claims, although there was a period when Defendant’s automatically deducted

employee meal periods, this ceased in April 2013, and in June 2015, Defendant

updated their employee handbook and implemented a facially compliant policy.

Similarly, Defendant updated its rest period policy in June 2015 and that even prior

to this it properly provided compliant rest breaks and that as they were not required

to maintain records Plaintiff would not be able to certify this claim. Further,

Defendant maintained that it properly reimbursed employees up to $60 per year

for safety shoes and provided other work-related equipment free of charge. These

potential defenses and changes in company policy limited the damages of these

claims and also limited the potential liability for the associated waiting time

penalties.

38. Limited participation by the class members also hindered the

prosecution of these claims. Although my office contacted more than 200 class



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members, many of the current employees at Masonite were unwilling to participate

in support of these claims for fear of retaliation. Defendant was also able to obtain

declarations from approximately 25 class members in support of its defenses

whom my office would have been forced to depose.

39. Additionally, although the parties had engaged in significant formal

and informal discovery and class-wide data analysis, significant costs and

expenses associated remained. Plaintiffs intended to depose each of the

approximately 25 class members from which Defendant obtained declarations.

Plaintiffs also had outstanding discovery issues with respect the deposition of

Defendant’s Person Most Qualified and the parties had already prepared a Joint

Stipulation Regarding Plaintiffs’ Motion to Compel Depositions. Moreover,

preparation for class certification and trial remained for the parties as well as the

prospect of appeals in the wake of a disputed class certification ruling for

Plaintiffs. As a result, the parties would incur considerably more attorneys' fees

and costs through trial.

40. This proposed class action settlement provides a significant monetary

recovery for the settlement class in the face of hotly disputed claims. Regarding

the overtime claim, Plaintiffs’ data analysis revealed that the putative class

members worked an average of 1 hour of overtime per week. According to

Plaintiffs calculations, the average hourly rate was $14.25. Defendants underpaid

overtime wages to the putative class by approximately $712,750, calculated as

follows: $14,25 hourly wage* 0.5 OT Premium* 100,000 OT hours= $712,750

underpaid OT Taking into account the risk involved with class certification, and

the defenses raised as to whether individual issues predominated, this amount was

reduced by 50% probability of prevailing on the merits and certification for a total

of $356,375

41. For Plaintiffs’ minimum wage claims, the same issues presented

themselves regarding whether Defendant’s rounding practices could be proven at

the certification stage and/or merits stage. Specifically, based on the records

presented, it appeared that Defendants had reduced the pay for employees based



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on time shaving for a period of time during the class period; however, the practice

varied from location to location and changed several times throughout the class

period. Nevertheless, Plaintiffs estimated if they had been able to fully recover

for their claims on failing to pay minimum wages the total recovery would be

approximately $900,000. Taking into account the same risks presented for the

overtime claim, this estimated recovery was reduced by 50% probability of

prevailing on the merits and certification for a total of $450,000.

42. With respect to the meal period claim, prior to March 2013, Defendant

engaged in an auto-deduct policy that automatically deducted lunch periods from

employees. Plaintiffs assumed a 95% violation rate during this period. After

ceasing this practice, Plaintiffs’ analysis revealed meal breaks were taken late or

not at all approximately 37% of the shifts. Based on this data, Plaintiffs estimate

there were approximately 47,541 missed or late meal periods. Based on an average

hourly rate of pay of $14.25 for non-exempt employees Plaintiffs calculated

Masonite’s maximum potential rest period exposure as follows: 47,541 meal

period violations* $14.25 meal period premium payment= $677,459.25. Taking

into account Masonite’s argument that meal periods were made available to non-

exempt employees, and that any missed meal periods were the result of individual

choices rather than a company-wide practice, Plaintiff’s discounted these potential

damages 50% for a risk of non-certification and by an additional 50% on the merits

for a risk of approximately $169,364.81in potential exposure.

43. With respect to the rest period claim, Defendant failed to produce a

compliant rest period policy until June 2015. Although the rest period policy

stated that employees were entitled to breaks, Plaintiffs assumed a mere 50%

compliance in accordance with legally required rest periods. Based on the shift

data provided by Defendant Plaintiffs estimated approximately 71,721

violations. Based on an average hourly rate of pay of $14.25 for non-exempt

employees Plaintiffs calculated Masonite’s maximum potential rest period

exposure as follows: 71,721 rest period violations* $14.25 rest period penalty

payment= $1,022,024. However, Defendant contended that Plaintiffs would face



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serious difficulty in both certifying this claim and in proving the attendant

damages, particularly given that it was not required to keep records of rest

periods. For these reasons and other risks in certifying the claim Plaintiffs

discounted the potential for this recovery by 50% and for an additional 50% for

risks related to proceeding on the merits. This led to a total value of $255,506.06.

44. With respect to the waiting time penalty claim, Masonite’s records

confirmed that there were 243 former non-exempt employees in the putative class

who separated their employment with Masonite within the three years

immediately preceding the filing of the Complaint. Based on an average hourly

rate of pay of $14.25, Plaintiffs estimated the average waiting time penalty per

employee to be approximately $3,420 ($14.25 * 8 hours* 30 days). Therefore,

Plaintiffs estimated Masonite’s potential waiting time penalty exposure as

follows 243 separated employees* $3,420 average waiting time penalty=

$831,060. However, based on Defendant’s potential defenses, Plaintiffs

discounted the value of the waiting time penalty claim by 75% to account for an

adverse merits ruling, to arrive at $205,265.00.

45. With respect to wage statement penalties, Masonite’s data also

reflected that there were approximately 653 non-exempt employees employed by

Masonite during the one-year statute of limitations period for the wage statement

claim. Although Plaintiffs presented claims about the failure to include proper

wage statements, Defendant presented exemplars showing the wage statements

may have properly included all items required under Labor Code section 226(a).

Thus, Plaintiffs estimated the wage statement penalties as follows: 653

employees * $4,000 (statutory maximum penalties) =$2,612,000 However, again

based Masonite’s defenses to certification and the merits Plaintiffs discounted

the value of the wage statement penalty claim by 50% for the risk of an adverse

certification ruling and an additional 75% to account for an adverse merits ruling

for a projected total of $326,500.

46. Finally, with respect to PAGA Penalties, Plaintiffs estimated a total

PAGA exposure of $12,777,741 for PAGA penalties for the entire class. Based



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on the defenses raised by Defendants that (1) Plaintiff Byrd had filed outside the

statute of limitations and that Plaintiff Maunakea was only within the period of

August 2015 forward, and (2) the potential defenses raised as to whether Plaintiff

would be able to proceed on behalf of all of the aggrieved employees, Plaintiffs

discounted that figure by 50% for a risk of losing on the beginning stages and

another 50% for the risk of the Court reducing penalties, to arrive at a projected

total of $638,887.05 The Parties allocated $50,000.00 of the settlement to the

parties PAGA claims, of which 75% ($37,500) will be paid to the LWDA. The

remaining 25% will be distributed to the class members. My office provided

Notice to the LWDA after execution of the addendum on November 6, 2017.

Fifty thousand dollars constitutes approximately 2% of the total settlement value,

a percentage within the range regularly approved in both state and federal courts.

See e.g.

• Davis v. Brown Shoe Co., 2015 U.S. Dist. LEXIS 149010 (E.D. Cal.

2015) (PAGA Payment of $5,000 in a $1.5 million class settlement)

• Zamora v. Ryder Integrated Logistics, Inc., 2014 U.S. Dist. LEXIS

184096 (S.D. Cal. 2014) ($7,500 payment to LWDA for PAGA on a

$1.5 million class settlement)

• Lusby v. Gamestop Inc., 2015 U.S. Dist. LEXIS 42637 (N.D. Cal.

2015) (PAGA Payment of $5,000 in a $500,000 class settlement)

• Cruz v. Sky Chefs, Inc., 2014 U.S. Dist Lexis 17693 (N.D. Cal. 2014)

(approving payment of $10,000 to the LWDA for PAGA out of

$1,750,000 class settlement)

• Chu v. Wells Fargo Investments, LLC, 2011 WL 672645, *1 (N.D.

Cal. 2011) (approving PAGA payment of $7,500 to the LWDA out of

$6.9 million common-fund settlement)

• Franco v. Ruiz Food Products, Inc., 2012 WL 5941801, *13 (E.D. Cal.

2012) (approving PAGA payment of $7,500 to the LWDA out of $2.5

million common-fund settlement)

• Hopson v. Hanesbrands Inc., 2009 WL 928133, *9 (N.D. Cal. 2009)

(approving PAGA allocation that was .49% of $408,420.32 gross

settlement)

• Garcia v. Gordon Trucking, Inc., 10-cv-00324-AWI-SKO, Dkt. 149-



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3, 165 (E.D. Cal.) (approving a class settlement of $3,700,000, with

$10,000 allocated to the PAGA claim)

• McKenzie v. Federal Express Corp., CV 10-02420 GAF (PLAx), Dkt.

139 & 141 (C.D. Cal.) (court approved a settlement in an amount of

$8.25 million, with $82,500 allotted to the PAGA claim)

• DeStefan v Frito-Lay, 8:10-cv-00112-DOC (C.D. Cal.) (court

approved a class settlement of $2 million, with $10,000 allocated to

PAGA)

• Martino v. Ecolab Inc., No. 3:14CV04358 (N.D. Cal. 2017) ($100,000

allotted as PAGA penalties or 0.48% of $21,000,000 settlement

amount).

• East v. Comprehensive Educational Services Inc., No. 11-CECG-

04226 (2015) ($10,000 allotted as PAGA penalties or 0.13% of

$7,595,846 settlement amount).

• Bararsani v. Coldwell Banker Residential Brokerage Company, No.

BC495767 (2016) ($10,000 allotted as PAGA penalties or 0.22% of


• Rico v. Cardinal Health 200 Inc. No. CIVRS-14-01451 (2017)

($5,000 allotted as PAGA penalties or 0.14% of $3,500,000 settlement

amount).

• Moppin v. Los Robles Medical Center, No. 5:15CV01551 (C.D. Cal.

2017) ($15,000 allotted as PAGA penalties or 0.40% of $3,775,000

settlement amount).

• Scott-George v. PVH Corporation. No., 2:13CV00441 (E.D. Cal.

2017) ($15,000 allotted as PAGA penalties or 0.46% of $3,250,000

settlement amount).

• Hart v. Parkview Community Hospital Medical Center,No. RIC-14-



• Nehrlich v. RPM Mortgage Inc., No. 30-2013-00666783-CU-OE-

CXC (2017) ($10,000 allotted as PAGA penalties or 0.40% of


• Kelley v. The Related Companies of California L.L.C. No. CIVDS-13-



• Castrejon v. O'Connell Landscape Maintenance Inc., No. RIC-12-





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47. Using these estimated figures, Plaintiffs predicted that their realistic

total recovery for the Classes would be approximately $2,401,897.92 after

discounting the claims for non-certification and/or outright dismissal as

explained above. The proposed settlement of $2,525,000.00 therefore represents

more than more than 105% of Plaintiffs’ reasonably forecasted recovery. Given

the litigation risks involved, I believe that that the proposed settlement is within

the realm of being fair, reasonable, and adequate, particularly given the

Defendant’s strong potential defenses. Given the delay, risk, and uncertainty

involved in prevailing on liability and obtaining class certification, there was a

significant risk that continuing in litigation in this matter could result in members

of the Settlement Class not receiving any monetary recovery.

48. In light of the potential defenses, risks associated with proceeding

with class certification and on the merits, continuing expense, and the value

obtained, it is my belief based on the extensive formal and informal discovery

completed and experience litigating wage and hour class action lawsuits that the

proposed settlement is fair, adequate, and reasonable.

THE PROPOSED NOTICE PROCESS

49. Subject to the Court’s approval, the parties have agreed to have the

settlement administered by Simpluris, Inc., an experienced class action

settlement administrator.

50. Simpluris will mail the proposed Class Notice (Attached hereto as

Exhibit C) to the Settlement Class.

51. The proposed Class Notice advises class members of the key terms

of the settlement and of the class members uniform 60-day deadline to file a

claim, opt-out, or file an objection to the settlement. The notice also provides a

summary of the alleged claims, explains the recovery formula and expected

recovery amount for each member of the Settlement Class, provides contact

information for Class Counsel, and notifies the class members of the date for the

final approval hearing



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52. The Response deadline will be extended by ten (10) calendar days for any putative class member who is re-mailed a notice packet by the claims

administrator

I declare under penalty of perjury under the laws of the State of California and

the United States of America that the foregoing is true and correct. Executed on

November 6, 2017 at El Segundo, California.

By:_____s/ Heather Davis_____Heather Davis, Esq. Attorneys for Plaintiff


Exhibit A

































21





Exhibit B





26


Exhibit C


NOTICE OF PROPOSED CLASS ACTION SETTLEMENT

Derrick Byrd, et al. v. Masonite Corporation

United States District Court, Central District of California, Case No. 5:16-cv-00035-JGB-KK

THIS IS A COURT-AUTHORIZED NOTICE. IT IS NOT A SOLICITATION.

PLEASE READ THIS NOTICE CAREFULLY.

YOUR LEGAL RIGHTS ARE AFFECTED WHETHER YOU ACT OR DO NOT ACT.

To: All current and former non-exempt employees who were employed by Masonite Corporation in California from November 17, 2011 through July 14, 2017.

YOU MAY BE ENTITLED TO RECEIVE MONEY FROM THIS PROPOSED SETTLEMENT.

TO RECEIVE YOUR SETTLEMENT SHARE, YOU MUST TAKE ACTION BY [DATE].

BASIC INFORMATION

11.. WWhhaatt iiss tthhiiss sseettttlleemmeenntt aabboouutt??

A lawsuit was commenced by a former employee of Masonite Corporation (“Masonite” or “Defendant”) on

November 17, 2015. The case is currently pending the United States District Court, Central District of California,

Case No. 5:16-cv-00035-JGB-KK.

The lawsuit claims that Masonite did not provide compliant meal and rest periods and associated premium pay, did

not properly pay all overtime and minimum wage compensation due and owing, did not provide accurate wage

statements, did not timely pay all overtime and minimum wage compensation due and owing, did not timely pay all

wages owed at termination of employment, did not maintain accurate records, and did not reimburse employees for

business expenses incurred on behalf of Masonite. The lawsuit also seeks associated penalties (including and not

limited to penalties pursuant to the California Private Attorneys General Act (“PAGA”)) and relief for unfair

business practices. The lawsuit claims that the Defendant violated the California Labor Code and the California

Business and Professions Code, entitling Class Members to, inter alia, damages, penalties and restitution. Defendant

denies all alleged violations, and denies that it owes Class Members any remedies. The Court has not made a ruling

on the merits of the case.

22.. WWhhyy iiss tthhiiss aa ccllaassss aaccttiioonn??

In a class action, one or more people called Class Representatives (in this case Derrick Byrd and Randy Maunakea,

also known as “Plaintiffs”), sue on behalf of people who appear to have similar claims (in this case all individuals

who have been employed by Masonite in the state of California as non-exempt employees at any time from

November 17, 2011 through July 14, 2017). All these people are referred to here as Class Members. One court

resolves the issues for all Class Members in one lawsuit, except for those who exclude themselves from the Class.

The United States District Court, Central District of California, is in charge of this class action.

33.. WWhhyy iiss tthheerree aa sseettttlleemmeenntt??

The Court has not decided in favor of the Plaintiffs, Class, or Defendant. Instead, both sides agreed to a

settlement which is memorialized in the Joint Stipulation of Class Action and PAGA Settlement and Release

and the Amended Joint Stipulation of Class Action and PAGA Settlement and Release (collectively “Settlement

Agreement” or “Settlement”).


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On _____, the Court granted preliminary approval of the Settlement and appointed Plaintiffs Derrick Byrd and

Randy Maunakea as Class Representatives and appointed their attorneys LAWYERS for JUSTICE, P.C. and

PROTECTION LAW GROUP, LLP as counsel for the Class (“Class Counsel”).

The Class Representatives and Class Counsel think the Settlement is best for the Class.

WHO IS IN THE SETTLEMENT?

44.. HHooww ddoo II kknnooww iiff II aamm ppaarrtt ooff tthhee sseettttlleemmeenntt??

You are part of the Settlement, and a Class Member, if you were employed by Masonite as a non-exempt employee in the state of California at any time from November 17, 2011 through July 14, 2017.

THE SETTLEMENT BENEFITS—WHAT YOU GET

55.. WWhhaatt ddooeess tthhee sseettttlleemmeenntt pprroovviiddee??

The Settlement provides that Defendant will have to pay a maximum of Two Million, Five Hundred Twenty-Five

Thousand Dollars and Zero Cents ($2,525,000.00.) (“Gross Settlement Amount”).

Net Settlement Amount: the portion of the Gross Settlement Amount that will be available for distribution to Class

Members who do not submit timely and valid Requests for Exclusion (“Class Members”), is the Gross Settlement

Amount less the following amounts (which are subject to Court approval):

A. Attorneys’ Fees to Class Counsel not to exceed 35% of the Gross Settlement Amount or Eight Hundred

Eighty-Three Thousand Seven Hundred Fifty Dollars and Zero Cents ($883,750.00);

B. Litigation Costs/Expenses to Class Counsel not to exceed Sixty-Five Thousand Dollars and Zero Cents

($65,000.00);

C. Enhancement Payments to the Class Representatives in an amount not to exceed Five Thousand Dollars

and Zero Cents ($5,000.00) for Derrick Byrd and Five Thousand Dollars and Zero Cents ($5,000.000) for

Randy Maunakea;

D. Settlement Administration Costs which are currently estimated to be $15,000.00.

E. Payment to California the Labor Workforce Development Agency (“LWDA”) in the amount of Thirty-

Seven Thousand Five Hundred Dollars and Zero Cents ($37,500.00) which represents the LWDA’s Seventy-

Five Percent (75%) portion of civil penalties in the amount of Fifty Thousand Dollars ($50,000) pursuant to

the Private Attorneys General Act (“PAGA Settlement Amount”). The remaining Twelve Thousand Five

Hundred Dollars ($12,500) will remain a part of the Net Settlement Amount for distribution to Class

Members.

The amount of money remaining after these payments, the Net Settlement Amount, is the amount that will be

distributed to Class Members if the Settlement is granted final approval by the Court.

The portion of the Net Settlement Amount that you are eligible to claim (“Estimated Settlement Share”) will be

determined on a pro rata basis, based on the number of weeks you worked in California as a non-exempt employee

of Masonite from November 17, 2011 through July 14, 2017 (“Workweeks”). Any Class Member with less than one

week of employment will be credited with one Workweek. Every former employee shall be allocated ten (10)

additional Workweeks to compensate that employee for releasing his or her claims for waiting time penalties under

sections 203 of the Labor Code.


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Your Estimated Settlement Share will be apportioned as one-third wages, one-third penalties, and one-third interest.

The wage portion of the Estimated Settlement Share will be subject to withholding for the employee’s share of taxes,

and will be reported on a W-2 Form (Defendant will pay the employer’s taxes and withholdings separately for, and

in addition to the Gross Settlement Amount). The penalties and interest portions will not be subject to any

withholdings and will be reported on an IRS Form 1099.

Your Estimated Settlement Share is $XXX.XX. The amount of the payment may change depending on the

number of timely and valid Requests for Exclusions submitted in the Settlement, if any.

HOW TO GET A PAYMENT FROM THE NET SETTLEMENT AMOUNT

66.. HHooww ccaann II ggeett aa ppaayymmeenntt??

You do not have to do anything to qualify for a payment of your portion of the Net Settlement Amount.

77.. WWhhaatt aamm II ggiivviinngg uupp iiff II ddoo nnoott oopptt--oouutt ooff tthhee SSeettttlleemmeenntt??

Upon the Effective Date, Class Members who do not timely submit a Request for Exclusion will be deemed to

have fully, finally and forever released, settled, compromised, relinquished, and discharged Masonite, and any of

its former and present parents, subsidiaries, and affiliates, divisions, corporations in common control,

predecessors, successors, and assigns, as well as all, and their past and present officers, directors, employees,

partners, shareholders, agents, attorneys, insurers, and any other successors, or assigns, or legal representatives , if

any (the “Released Parties”) of all claims, rights, demands, liabilities and causes of action, whether in law or equity,

arising from the same facts and/or claims alleged in the Original Complaint, First Amended Complaint, Second

Amended Complaint, and Third Amended Complaint or related to claims that were pled or could have been pled

based on the facts alleged in the Complaint and in pending PAGA Letters submitted to LWDA by Putative Class

Members and/or Class Counsel, including claims for wages, restitution, statutory and civil penalties, interest, fees,

and costs, and claims arising from California’s Private Attorneys General Act, based on the following categories of

claims and allegations: (1) all claims relating to the failure to provide meal periods; (2) all claims relating to the

failure to provide rest breaks; (3) all claims relating to the failure to pay for all time worked, including double time,

overtime, and minimum wage; (4) all claims relating to the failure to timely pay all wages during employment,

including overtime and minimum wage; (5) all claims relating to the failure to timely pay wages upon termination of

employment, including overtime; (6) all claims relating to defective and/or inaccurate wage statements; (7) all claims

relating to the failure to reimburse expenses; (8) all claims for failure to maintain accurate records; (9) incorporated

or related claims asserted through California Labor Code sections 2698 et seq.; and (10) incorporated or related

claims asserted through California Business and Professions Code sections 17200, et seq., including for violations of

California Labor Code sections 201, 202, 203, 204, 210, 226, 226.7, 510, 512, 551, 552, 1174, 1194, 1197, 1197.1,

1198, 2800 and 2802. The Released Claims do not include claims for workers’ compensation benefits or any of

claims that may not be released by law (“Released Claims”).

The release of Released Claims pertains to the time period of November 17, 2011 through July 14, 2017.

The Released Claims do not include claims for workers’ compensation benefits or any of claims that may not be

released by law.

All Class Members will be deemed to have fully, finally and forever released, settled, compromised, relinquished,

and discharged any and all Released Claims arising under the Private Attorney General Act (California Labor

Code sections 2698 et seq.), with respect to all of the Released Parties irrespective of whether a Class Member has

submitted a Request for Exclusion.


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EXCLUDING YOURSELF FROM THE RELEASE OF NON-PAGA RELEASED CLAIMS

If you want to keep the right to sue or continue to sue Defendant with respect to the Released Claims other than

those which arise under the Private Attorney General Act (California Labor Code sections 2698 et seq.), then you

must submit a Request for Exclusion in conformity with the requirements set forth herein. If you exclude

yourself, you will not receive payment of a portion of the Net Settlement Amount, however you may receive

payment in an amount equal to your estimated pro rata share of the PAGA Settlement Amount.

88.. HHooww ddoo II ggeett oouutt ooff tthhee rreelleeaassee ooff NNoonn--PPAAGGAA RReelleeaasseedd CCllaaiimmss??

To exclude yourself from the release of Released Claims (except for those which arise under the Private Attorney

General Act (California Labor Code sections 2698 et seq.), you must submit a written Request for Exclusion. You

must include your name, address, telephone number, last four digits of your Social Security Number, and your

signature. Your Request for Exclusion must also include the following statement, or something similar to: “I wish to

be excluded from the Settlement of Released Claims in Byrd, et al. v. Masonite Corporation, United States District

Court Case No. 5:16-cv-00035-JGB-KK. I understand that in asking to be excluded, I will not receive any portion of

the Net Settlement Amount approved by the Court in this case.”

The written for Exclusion must be mailed or faxed to the Settlement Administrator at the address listed below, post-

marked or fax-stamped by [DATE]. You cannot exclude yourself by phone.

[Claims Administrator]

[Address]

[Fax No.]

If you ask to be excluded, you will not receive payment of any portion of the Net Settlement Amount and you cannot

object to the Settlement. You will not be legally bound by the release of Released Claims (except for Released

Claims that arise under the Private Attorney General Act (California Labor Code sections 2698 et seq.)).

You may be able to sue Defendant and/or the Released Parties or continue any suit you have pending against

Defendant or the Released Parties, regarding the Released Claims (except for Released Claims that arise under the

Private Attorney General Act (California Labor Code sections 2698 et seq

99.. IIff II ddoonn’’tt eexxcclluuddee mmyysseellff,, ccaann II ssuuee DDeeffeennddaanntt ffoorr tthhee ssaammee tthhiinngg llaatteerr??

No. Unless you submit a Request for Exclusion, you give up the right to sue Defendant and Released Parties for

Released Claims. If you have a pending lawsuit involving Released Claims, speak to your lawyer in that lawsuit

immediately.

1100.. IIff II eexxcclluuddee mmyysseellff,, ccaann II ggeett mmoonneeyy ffrroomm tthhiiss sseettttlleemmeenntt??

No. But if you submit a timely and valid Request for Exclusion, you retain any right that you may have to sue,

continue to sue, or be part of a different lawsuit against Released Parties for Released Claims (except for Released

Claims that arise under the Private Attorney General Act (California Labor Code sections 2698 et seq.).

THE LAWYERS REPRESENTING YOU

1111.. DDoo II hhaavvee aa llaawwyyeerr iinn tthhiiss ccaassee??


-5-

The Court has approved LAWYERS for JUSTICE, P.C. and PROTECTION LAW GROUP, LLP as Class Counsel. The

firms’ contact information is:

LAWYERS for JUSTICE, PC

Edwin Aiwazian, Esq. 410 West Arden Avenue, Suite 203

Glendale, California 91203 Telephone: (818) 265-1020 Facsimile: (818) 265-1021

PROTECTION LAW GROUP LLP Heather Davis, Esq.

136 Main Street, Suite A El Segundo, California 90245 Telephone: (424) 290-3095 Facsimile: (866) 264-7880

1122.. HHooww wwiillll tthhee llaawwyyeerrss bbee ppaaiidd??

Class Counsel will ask the Court for attorneys’ fees of up to $883,750 and reimbursement of litigation cost/expenses

of up to $65,000.00. These amounts are subject to Court approval and the Court may award less than these amounts.

Class Counsel will file a Motion for Approval of their Attorney’s Fees and Costs no later than ______, 2018 for the

$883,750.00 in fees and up to $65,000.00 in costs and the Request for Approval of the Class Representative

Enhancement Payments in the amount of $5,000 each.

OBJECTING TO THE SETTLEMENT

You can object to the Settlement or some part of it.

1133.. HHooww ddoo II tteellll tthhee CCoouurrtt iiff II ddoonn’’tt lliikkee tthhee sseettttlleemmeenntt??

If you are a Class Member, you can object to the Settlement and you can give reasons for why you think the Court

should not approve it. The Court will consider your views. To object, you must file a written statement objecting to

the settlement with the Court and serve it on Class Counsel and Defense Counsel.

The written objection must include your full name, address, telephone number, your signature, all grounds for the

objection accompanied by any legal support for such objection, and copies of any papers, briefs, or other documents

upon which the objection is based.

To be effective, your objection must be filed with the United States District Court, Central District of California,

located at 3470 Twelfth Street Riverside, California 92501 on or before [date], and be mailed to Counsel for the

parties at the addresses below, postmarked no later than [DATE]

CLASS COUNSEL DEFENSE COUNSEL

LAWYERS for JUSTICE, PC Edwin Aiwazian, Esq. Arby Aiwazian, Esq. Joanna Ghosh, Esq.

410 West Arden Avenue, Suite 203 Glendale, California 91203

PROTECTION LAW GROUP LLP

Heather Davis, Esq. 136 Main Street, Suite A

El Segundo, California 90245

LITTLER MENDELSON

Carlos Jimenez, Esq. 633 West Fifth Street, 63rd Floor

Los Angeles, California 90071


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1144.. WWhhaatt iiss tthhee ddiiffffeerreennccee bbeettwweeeenn oobbjjeeccttiinngg aanndd eexxcclluuddiinngg??

Objecting is simply telling the Court that you do not like something about the Settlement. You can object only if

you stay in the Class. Excluding yourself is telling the Court that you do not want to be part of the Settlement. If

you exclude yourself, you have no basis to object because the case no longer affects you.

THE COURT’S FAIRNESS HEARING

The Court will hold a hearing to decide whether to grant final approval of the Settlement (“Final Approval

Hearing”). You may attend and you may ask to speak, but you do not have to attend.

1155.. WWhheenn aanndd wwhheerree wwiillll tthhee CCoouurrtt ddeecciiddee wwhheetthheerr ttoo aapppprroovvee tthhee sseettttlleemmeenntt??

The Court will hold the Final Approval Hearing at _______ p.m. on [______________, 2018], at the United States

District Court, Central District of California, 3470 Twelfth Street Riverside, California 92501, Courtroom 1.

At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate, and determine

whether to grant final approval of the Settlement. If there are objections, the Court will consider them.

1166.. DDoo II hhaavvee ttoo ccoommee ttoo tthhee hheeaarriinngg??

No. If you agree to the Settlement, or filed and served an objection in compliance with the requirements set forth

above, you do not have to come to Court to talk about it. However, you may attend and speak, or you may also

retain your own lawyer at your expense to attend on your behalf.

IF YOU DO NOTHING

1177.. WWhhaatt hhaappppeennss iiff II ddoo nnootthhiinngg aatt aallll??

If you do nothing, you receive your share of the Net Settlement Amount, and you will release the Released Claims.

You will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Defendant or

Released Parties about the Released Claims, ever again.

GETTING MORE INFORMATION

1188.. HHooww ddoo II ggeett mmoorree iinnffoorrmmaattiioonn??

This notice summarizes the proposed Settlement. More details are in the Settlement Agreement, which is attached as

Exhibit ___ to ____. You can get a copy of the Settlement Agreement by using Public Access to Court Electronic

Records System (PACER) (for a fee), by viewing the settlement located on the Claims Administrator’s website at

_______________ or by contacting the Settlement Administrator or Class Counsel.

19. WHAT IF MY INFORMATION CHANGES?


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It is your responsibility to inform the Settlement Administrator of your updated information to ensure receipt

of settlement payments or communications regarding this matter. You can change or update your contact

information by using the Claim Form and/or by contacting the Settlement Administrator.

DO NOT ADDRESS ANY QUESTIONS ABOUT THE SETTLEMENT OR THE LITIGATION TO THE

CLERK OF THE COURT OR THE JUDGE


Documents

ROTECTION AW ROUP - Violation Tracker · 410 West Arden Avenue, Suite 203 Glendale, California 91203 Tel: (818) 265-1020 / Fax: (818) 265-1021 Heather Davis (Cal. State Bar No. 239372)