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DECLARATION OF MATTHEW T. THERIAULT IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES AND EXPENSES
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Matthew T. Theriault (SBN 244037) [email protected] Ryan H. Wu (SBN 222323) [email protected] Arnab Banerjee (SBN 252618) [email protected] Capstone Law APC 1840 Century Park East, Suite 450 Los Angeles, California 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 Attorneys for Plaintiffs Summer York and KaTina Burns
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA—WESTERN DIVISION
SUMMER YORK, an individual, on behalf of other members of the general public similarly situated, Plaintiffs, vs. STARBUCKS CORPORATION, a Washington corporation, and STARBUCKS COFFEE COMPANY, a Washington corporation, Defendants.
Case No.: 2:08-cv-07919-GAF-PJW DECLARATION OF MATTHEW T. THERIAULT IN SUPPORT OF PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND EXPENSES Date: October 28, 2013 Time: 9:30 a.m. Place: Court Room 740 Complaint Filed: December 2, 2008 Trial Date: None
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DECLARATION OF MATTHEW T. THERIAULT
I, Matthew T. Theriault, declare as follows:
1. I am an attorney admitted to the State Bar of California and the
United States District Court for the Central District of California. I am a partner
with Capstone Law APC, counsel for Summer York (“York”) and KaTina Burns
(“Burns”). Unless the context indicates otherwise, I have personal knowledge of
the following facts, and if called as a witness, I could and would testify
competently to them. I make this declaration in support of Plaintiffs’ Motion for
Attorneys’ Fees and Expenses.
MY EXPERIENCE AS A CLASS ACTION LITIGATOR
2. I graduated from Western New England College, School of Law in
Springfield, Massachusetts, in January 2001, and was admitted to practice law in
the State of Connecticut in June 2001. From the time I graduated until
December 2005, I practiced law at Consumer Law Group, LLC, in Rocky Hill,
Connecticut. Consumer Law Group focused its practice primarily on class
actions. At Consumer Law Group, I focused on consumer litigation involving
auto dealership fraud, loan financing, and debt collection practices.
3. In January 2006, I moved to Los Angeles, California and transferred
to the firm of Garfield & Tepper in Los Angeles. I was admitted to practice law
in the State of California in September 2006. In January 2007, I joined Initiative
Legal Group LLC (Initiative), where I began working exclusively on wage and
hour class actions.
4. I was employed by Initiative when this lawsuit was brought by Ms.
York in December 2008. In October 2012, I left Initiative for Capstone Law
APC (“Capstone”). York thereafter retained Capstone to represent her in this
lawsuit. Since 2008, a number of attorneys from Capstone and Initiative have
worked on various aspects of this matter at various times, but I have consistently
been involved in all aspects of this litigation. The term “Plaintiffs’ Counsel,”
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used throughout, refers to Initiative and/or Capstone.
5. Since January 2007, I conservatively estimate that I have
contributed significant work in at least 50 putative or certified class actions.1 I
am Court-appointed lead class counsel in the ongoing certified class actions:
• Rodriguez v. Swissport North America, Inc. (L.A. Super. Ct. No.
BC441173) (Palazuelos, J.): I was specifically appointed lead
class counsel on behalf of a certified class consisting of over
4600 non-exempt, hourly employees alleging issuance of wage
statements that violate Labor Code section 226(a) and seeking
penalties pursuant to Labor Code section 226(e) and PAGA
penalties. This action was certified on April 12, 2013 after
multiple rounds of supplemental briefing.
• In re: Taco Bell Wage And Hour, No. CV 01314-LJO-DLB,
2013 U.S. Dist. LEXIS 380 (E.D. Cal. Jan. 2, 2013): In this wage
and hour class action, I was involved primarily with the class
certification efforts, specifically, supervising the certification
strategy and briefing, and conducting the oral argument on behalf
of the seven plaintiffs’ firms involved. The case was certified in
January 2013;
• In Re: AutoZone, Inc., Wage and Hour Employment Practices
Litigation, No.: 3:10-md-02159-CRB: In this wage and hour
class action, I was involved primarily with the class certification
efforts (granted Dec. 2012), including the briefing and oral
1 During my employment with Initiative (2007 through 2012), I gained
considerable experience from its litigation of numerous class actions, See, e.g., Memorandum & Order Regarding Motion for Class Certification and Motions to Strike (Dkt. No. 155), 49:23-27 (finding Initiative adequate class counsel based on “long list of class action cases that it has successfully certified over the years.”)
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argument;
6. I was substantially involved in the following class actions approved
for settlement:
• Zamora v. Countrywide Home Loans, Inc. (L.A. Super. Ct. Case
No. 360026) (Bendix & Buckley, JJ.): This wage and hour class
action was filed in October 2006. Shortly after the start of my
employment at Initiative in January 2007, I litigated all aspects
of this matter through class certification, defendants’ several
(unsuccessful) decertification attempts, negotiations of the
classwide settlement, trial preparation, and final settlement. The
case certified in June 2010, and the class settlement was
preliminarily approved in October 2012 and finally approved in
March 2013;
• Mansfield v. Brackenhoff Mgmt. Group, Inc. (L.A. Super. Ct. No.
BC356188): I litigated all aspects of this wage and hour class
action, through class certification (Nov. 2007), preliminary
approval (March 2008) and final approval (July 2008);
• Blair v. Jo-Ann Stores, Inc. (L.A. Super. Ct. No. BC394795): I
litigated all aspects of this wage and hour class action, through
certification (May 2009), preliminary approval (Dec. 2009), and
final approval (June 2010);
• Nevarez v. Trader Joe’s Co. (L.A. Super. Ct. No. BC373910): I
litigated all aspects of this wage and hour class action through
preliminary approval (Sept. 2009) and final approval (Jan. 2010);
• Mobley v. GlobeGround North Am. LLC (L.A. Super. Ct. No.
BC356051): I litigated all aspects of this wage and hour class
action through preliminary approval (Sept. 2008) and final
approval (Feb. 2009);
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• Kisliuk v. ADT Security Servs., Inc. (C.D. Cal. No. 08-03241): I
litigated all aspects of this wage and hour class action through
preliminary approval (Aug. 2010) and final approval (Jan. 2011);
• Gong-Chun v. Aetna Life Insurance Company (E.D. Cal. Case
No. 09-01995): I was substantially involved in the settlement of
this wage and hour class action (preliminary approval in Feb.
2012 and final approval in July 2012); and,
7. I am currently involved in other certified class actions:
• Cook v. United Ins. Co. of America (Contra Costa Super. Ct. No,
MSC10-00425: I was substantially involved in the certification
efforts, resulting in conditional certification in November 2012;
• Iskanian v. CLS Transportation Los Angeles LLC (Los Angeles
Superior Court Case No. BC356521): I litigated all aspects of
this matter through certification (Oct. 2009). This case is
currently pending before California Supreme Court;
8. I am the lead counsel for Plaintiffs in this case. I personally
participated in every strategic decision in this case. I personally participated in
every mediation and settlement conference with Starbucks, and I personally
argued before the Court on contested issues that directly affected the success of
the litigation.
OVERVIEW OF THE LITIGATION
9. Plaintiffs’ Counsel was contacted by York, a former employee of
Starbucks in connection with potential employment-related claims. Plaintiffs’
Counsel made an initial determination that York’s inquiries and complaints
about Starbucks were consistent with the type of claims that Plaintiffs’ Counsel
was experienced in handling. Once these initial interviews of York revealed
potential wage and hour claims, Plaintiffs’ Counsel conducted additional, in-
depth interviews of York and reviewed employment documents in York’s
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possession (mainly, wage statements and employee reviews), to assess the
strengths and weaknesses of the claims, including potential defenses.
10. In bringing an action, including a class action, Plaintiff’s Counsel
bears a risk based on the contingent nature of the fee agreement that Plaintiffs’
Counsel typically enters into with prospective clients, including with Plaintiffs
here. In other words, neither York nor Burns were required to pay any retainer
and Plaintiffs’ Counsel advanced all costs. Thus, Plaintiffs’ Counsel assumed
the full risk that its fees would not be paid in the event no recovery was obtained.
Moreover, the out-of-pocket costs required for the successful litigation of a class
action can be considerable, and this case was no exception.
11. Fortunately, here, Starbucks is and was a well-known and
financially secure company, which, in Plaintiffs’ Counsel’s view, minimized the
risk of non-payment due to potential insolvency. While risk of insolvency
seemed remote, Starbucks’ position as a Fortune 100 company brought with it
well-heeled and highly skilled defense counsel from the law firm of Akin Gump,
which has successfully represented Starbucks in several cases. See, e.g., Chau v.
Starbucks Corp., 174 Cal. App. 4th 688 (2009) (overturning $86 million dollar
award in tip-pooling class action); White v. Starbucks Corp., 497 F. Supp. 2d
1080 (N.D. Cal. 2007) (granting summary judgment in Starbucks’ favor in case
alleging off-the-clock violations); Delsing v. Starbucks Coffee Corp., 2009 U.S.
Dist. LEXIS 90962 (D. Minn. 2009) (denying class certification in tip-pooling
case due to intra-class conflicts); Cummings v. Starbucks Corp., Case No. 2:12-
cv-06345 (C.D. Cal. Dec. 22, 2011) (granting summary judgment in Starbucks’
favor on employees’ claims of improper time rounding); Gates v. Starbucks
Corp., 2:09-cv-09359-GAF-PJW (C.D. Cal. July 16, 2012) (order dismissing
claims for waiting time penalties).
12. Following the pre-litigation research and additional conversations
with York, Plaintiffs’ Counsel offered to represent her on a contingency fee
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basis. York also agreed to serve as a class representative in a class action
lawsuit. York understood her fiduciary role as a class representative, and, in
Plaintiffs’ Counsel’s opinion, her conduct in this litigation demonstrates her
commitment to that role.
13. During the case’s pendency, Plaintiffs’ Counsel was contacted by
Burns, a class member, who alleged, among other claims, on-duty meal period
claims resulting from Starbucks’ Two-Partner Rule. She also alleged having
worked overtime, meaning that her wage statement for those pay periods would
not have listed a numeric overtime rate, which Plaintiffs alleged violated
California’s wage statement statute, Labor Code section 226(a). Burns
expressed her interest in assisting with the lawsuit, and in 2013, in connection
with the parties’ settlement discussions and to effectuate the terms of the
settlement agreement, Starbucks consented to the addition of Burns as a
proposed class representative, and informally confirmed that Burns had worked
overtime during the relevant time period.
PLAINTIFFS’ CLAIMS
14. York worked for Starbucks from January 15, 2003 to August 20,
2008, first as a barista and then as a shift supervisor.2 During her employment,
York received periodic wage statements that were alleged to have violated
California’s wage statement statute, Labor Code section 226(a), because they did
not contain the applicable hourly rates, the name of the legal entity that
employed her, and the total hours worked. See, e.g., Memorandum & Order
Regarding Starbucks Corporation’s Motion for Partial Summary Judgment (Dkt.
No. 70) (concerning York’s off-the-clock and wage statement claims). For these
violations, York sought statutory remedies pursuant to Labor Code section
2 Declarations submitted by York throughout this litigation establish these
facts. (See, e.g., Dkt. Nos. 63, 88-7, and 170-4).
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226(e) and under the Labor Code Private Attorneys General Act, Labor Code
section 2698, et seq. (“PAGA”). These claims presented considerable risk
mainly due to the absence of case law addressing Labor Code section 226(a)’s
requirements and because of relatively mixed, if not conflicting case law
interpreting the “injury” requirement for statutory penalties under Labor Code
section 226(e).
15. York also alleged that she worked off-the-clock, both before and
after her shift, and during meal periods, and therefore she alleged minimum and
overtime wage violations pursuant to Labor Code section 1194 and California’s
Unfair Competition Law, Business & Professions Code sections 17200, et seq.
Off-the-clock claims are often the more difficult wage and hour claims to certify
and ultimately prove because of the lack of documentary evidence supporting the
claims and the presumption that the hours reflected in the time records are
accurate. York had little documentary evidence to support off-the-clock work,
which in itself is not surprising given the nature of the claims, but did testify in
detail about a few specific examples during which it occurred. Moreover, in
order to prevail, York would have also had to prove that Starbucks knew or
should have known that York was working off-the-clock. Thus, there was a
considerable risk that York would not prevail on these claims.
16. York also alleged violations of California’s meal period statutes,
Labor Code sections 226.7(a) and 512, specifically, that her meal periods were
late, interrupted, or missed due to work demands, and that Starbucks’ policies
prevented her from taking off-duty meal periods during a “Two-Partner”
situation (i.e., partners were required to remain on the premises during a meal
break when they were only one of two scheduled partners). York also alleged
that Starbucks’ time-keeping system (the Point of Service, or “POS”) did not
allow partners to log back-in from a meal period until 30 minutes had expired,
and thus, that the time records did not accurately reflect the violations that had
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occurred.
17. Therefore, like her off-the-clock claims, York compellingly testified
as to meal period violations, but had little by way of additional documentary
evidence to support the claims. Moreover, an analysis of her time records, which
were obtained through discovery, revealed the existence of missed and late meal
periods, though Starbucks argued that the record alone was insufficient to
establish a violation. In other words, Starbucks argued that even if the time
records revealed missed and late meal periods, that fact alone would not establish
liability because York could not reliably establish that the missed or late meal
breaks were attributable to Starbucks.
18. York also alleged violations of California’s rest period statute,
Labor Code section 226.7(a), in that she was not provided with timely and
compliant rest breaks. York’s rest period claims presented significant challenges
because Starbucks was not required to maintain rest break records. Thus, in the
absence of such records, York would have had to convincingly testify as to
violations.
19. York also alleged that she was not paid her final, undisputed wages
on her day of separation, in violation of Labor Code section 203. In addition to
her own testimony, York had documentary evidence (by way of wage
statements) indicating that she was not paid all wages on the day of her
separation. However, Labor Code section 203 imposes penalties only for
“willful” violations. Therefore, while there was documentary evidence tending
to establish the late payment itself, Starbucks argued that the evidence
convincingly established that the late payment was not “willful.” Thus, even on
an individual basis, there were unique challenges associated with each claim.
20. On September 11, 2008, Plaintiffs’ Counsel sent notice of York’s
claims to the Labor and Workforce Development Agency (“LWDA”) to satisfy
PAGA’s statutory prerequisite pursuant to Labor Code section 2699.3(a)(1). On
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October 24, 2008, the LWDA provided written notice that it would not
investigate the allegations, which authorized her to seek penalties on behalf of
aggrieved employees and the State of California.
SUMMARY OF ALL MOTION PRACTICE
21. The parties engaged in substantial motion practice. The following is
a list of major motions and briefing:
Filing Date Party Motion/Memo/Pleading
12/2/08 Plaintiff Complaint
2/05/09 Defendant Answer to Complaint
3/18/09 Plaintiff First Amended Complaint
4/06/09 Defendant Answer to Amended Complaint
6/05/09 Plaintiff Motion to Compel Discovery
6/18/09 Plaintiff Supplement, Motion to Compel Discovery
9/23/09 Defendant Motion to Deny Certification
10/05/09 Plaintiff Opposition, Motion to Deny Certification
10/06/09 Plaintiff Motion to Compel Discovery
10/15/09 Defendant Opposition, Motion to Compel Discovery
11/09/09 Defendant Motion for Summary Adjudication
11/16/09 Plaintiff Opposition, Summary Adjudication
11/23/09 Defendant Reply, Summary Adjudication
3/24/10 Defendant Motion to Exclude Declarations
3/31/10 Defendant Supplement, Motion to Exclude Declarations
7/08/10 Defendant Motion to Stay Case
7/19/10 Plaintiff Opposition, Motion to Stay
7/26/10 Defendant Reply, Motion to Stay
7/28/10 Plaintiff Motion to Certify Class
8/27/10 Defendant Motion to Strike Plaintiff’s Trial Plan
8/27/10 Defendant Motions to Strike Expert Testimony
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8/30/10 Defendant Opposition, Motion to Certify Class
9/03/10 Plaintiff Opposition, Motion to Strike Trial Plan
9/03/10 Plaintiff Opposition, Motions to Strike Expert Testimony
9/13/10 Defendant Reply, Motion to Strike Trial Plan
9/13/10 Plaintiff Reply, Motion to Certify Class
9/13/10 Defendant Reply, Motions to Strike Expert Testimony
9/17/10 Defendant Evidentiary Objections, Motion to Certify Class
2/07/11 Plaintiff (1st) Supplemental Memo, Motion to Certify Class
2/07/11 Defendant (1st) Supplemental Memo, Motion to Certify Class
7/05/11 Defendant Reconsideration, Summary Adjudication
7/18/11 Plaintiff Opposition, Reconsideration
7/25/11 Defendant Reply, Reconsideration
10/17/11 Plaintiff (2nd) Supplemental Memo, Motion to Certify Class
10/17/11 Defendant (2nd) Supplemental Memo, Motion to Certify Class
3/01/12 Defendant Memo re Class Notice
3/01/12 Plaintiff Memo re Class Notice
7/19/13 Plaintiff Ex Parte re Class Notice
7/20/12 Defendant Opposition, Ex Parte
7/30/12 Plaintiff Motion for Partial Summary Judgment
7/30/12 Plaintiff Reconsideration, Motion to Certify Class
8/6/12 Defendant Opposition, Reconsideration
8/13/12 Plaintiff Reply, Reconsideration
8/13/12 Defendant Summary Adjudication and Decertification
8/20/12 Defendant Opposition, Partial Summary Judgment
8/27/12 Plaintiff Reply, Summary Judgment
8/31/12 Defendant Partial Summary Judgment
8/31/12 Plaintiff Opposition, Summary Adjudication and Decertification
9/10/12 Defendant Reply, Summary Adjudication and Decertification
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9/10/12 Plaintiff Opposition, Partial Summary Judgment
9/17/12 Defendant Reply, Partial Summary Judgment
5/21/13 Plaintiff Motion for Preliminary Approval of Settlement
22. A total of 9 court hearings were held in this case, either for motions
or for status conferences.
SUMMARY OF WORK FOR NON-CERTIFICATION MOTION PRACTICE
23. From the outset of the litigation, York pursued her off-the-clock,
meal period, rest period, wage statement, and late final pay claims. Plaintiffs’
Counsel conducted substantial discovery relating to these claims and engaged in
substantial motion practice.
24. This section details the relevant motion practice and its impact on
Plaintiffs’ Counsel’s evaluation of the proposed class-wide settlement. Aside
from the Motion to Vacate Trial Dates (Dkt. No. 192), Plaintiffs prevailed on
every contested non-certification motion.
25. Motions to Compel Discovery. In June 5, 2009, York moved to
compel production of names and information. (Dkt. No. 25.) The Magistrate
Judge granted Plaintiffs’ motion on June 30, 2009. (Dkt. No. 33.) Then, on
October 6, 2009, York again moved to compel production of discovery, this time
for employee data from 6000 stores. (Dkt. No. 41.) Defendants ended up
partially compromising, but the Magistrate Judge issued a detailed discovery
order to prevent Starbucks from avoiding production. (Dkt. No. 59.)
26. Starbucks’ First Motion for Summary Judgment: On November 9,
2009, Starbucks filed a motion for summary adjudication as to York’s individual
off-the-clock, late final payment claims, and wage statement claims. (Dkt. No.
60.) This motion was the first of several related to California’s wage statement
statute, Labor Code section 226, which, in sum, resulted in a refinement of the
triable claims and more certainty with respect to Starbucks’ potential liability.
Moreover, the wage statement claims involved relatively novel issues of
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statutory interpretation, which continued to evolve during this lawsuit. In fact, in
response to the varying decisions issued during the pendency of this lawsuit, the
California Legislature amended Labor Code sections 226(a) and (e), effective
2013, to clarify the intent on the statute. Thus, the Court’s orders as to wage
statement liability, damages and class certification presented numerous appellate
issues for both parties, the risks of which were carefully considered by Plaintiffs’
Counsel in its evaluation of the reasonableness of the settlement.
27. Starbucks’ motion was predicated upon York receiving periodic
paychecks and wage statements during her employment. From December 2007,
the beginning of the statute of limitations period for claims for penalties under
Labor Code section 226(e) and PAGA, through August 2008, York received
wage statements from Starbucks that did not state a total number of hours
worked (one number, in the aggregate), the name of the legal entity that was her
actual employer, or the numeric overtime rate of pay, which she alleged violated
Labor Code section 226(a).
28. Starbucks’ motion, which was appropriate because the relevant facts
– the contents of the wage statements – were not in dispute, sought a legal
determination that none of the alleged defects violated Labor Code section
226(a), and, nonetheless, that York had not suffered a sufficient “injury” to
justify an award of penalties under Labor Code section 226(e).3
29. In December 2009, after a hearing on the matter, the Court partially
granted Starbucks’ motion, finding that Starbucks’ use of a fictitious name
(“Starbucks Coffee Company”) did not violate Labor Code section 226(a). (Dkt.
No. 70.) However, the Court also denied Starbucks’ motion, determining that
3 As noted above, Starbucks also moved for judgment as to York’s off-the-
clock claims and final pay claims. The Court denied Starbucks’ motion related to these claims. (Dkt. No. 70)
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Starbucks’ wage statement violated the statute because it failed to state the total
hours worked and the numeric overtime rate, and that York presented sufficient
evidence of an “injury” to justify statutory damages pursuant to Labor Code
section 226(e).
30. Motion to Stay Wage Statement Claims: In July 2010, Starbucks
moved to stay York’s wage statement claims arguing that, because Price v.
Starbucks had been appealed, the California Court of Appeal might make a
determination with respect to the substantive law that would ultimately resolve
the wage statement claims at issue here. After briefing, the Court denied
Starbucks’ motion to stay. (Dkt. No. 93.)
31. Starbucks’ Motion for Reconsideration re Wage Statements: During
the pendency of the class certification motion, Starbucks moved for
reconsideration of the Court’s order denying its motion for summary judgment as
to York’s wage statement claims, relying on two California appellate decisions
relating to wage statements, Morgan v. United Retail, Inc., 186 Cal. App. 4th
1136 (2010) and Price v. Starbucks Corp., 192 Cal. App. 4th 1136 (2011).
32. In Price, the court clarified the standard for recovery of statutory
damages under Labor Code section 226(e), specifically, the type or level of
“injury” that would and would not entitle the employee to statutory damages.
Applying this new standard, the Court granted reconsideration, holding that
York’s injuries did not entitle her to statutory damages under Labor Code section
226(e).
33. In Morgan, the court held the wage statement statute did not require
employers to separately state the total hours worked as an aggregate. Thus, the
Court granted reconsideration holding that Starbucks’ wage statements complied
with the statute in this respect.
34. Despite these adverse rulings, the Court’s previous finding, that the
wage statement violated Labor Code section 226(a) because it did not state a
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numeric overtime rate, remained the law of the case. This holding, coupled with
York’s standing as Labor Code Private Attorney General under PAGA, and
additional discovery by Plaintiffs’ Counsel, later provided the bases for York’s
motion for summary judgment on behalf of all aggrieved employees, infra.
35. York’s Motion for Summary Judgment re Wage Statements: In
March 2012, Plaintiffs’ Counsel deposed Starbucks’ designee, Jacqueline Gintz,
concerning Starbucks’ procedures relating to the preparation and contents of its
wage statements provided to all of its California employees. This testimony
established that Starbucks’ wage statements provided to all employees failed to
state a numeric overtime rate when overtime wages were paid.
36. In July 2012, York moved for summary judgment on her wage
statement claim, seeking specific findings that York had properly exhausted her
PAGA prerequisites and was therefore permitted to seek PAGA violations on
behalf of all aggrieved employees, and that Starbucks’ wage statements violated
Labor Code section 226(a). (Dkt. No. 170.)
37. Starbucks cross-moved for summary judgment on the same issue.
Starbucks asserted a plethora of legal challenges to PAGA, including an
elaborate constitutional challenge to the validity of PAGA. Starbucks also
argued that York was not entitled to a liability and damages finding as to all
aggrieved employees because she had not moved for certification of the PAGA
claims under Rule 23.
38. During class certification, York expressly reserved the right to
pursue PAGA as a private attorney general without certifying the claims under
Rule 23. The California Supreme Court provided the primary basis for this
position following its decision in Arias v. Super. Ct. (Angelo Dairy), 46 Cal. 4th
969 (2009), holding that PAGA was an enforcement action that was not subject
to class certification requirements. Despite this holding, its application in federal
courts with respect to Rule 23 had not been consistent. York’s argument was
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bolstered, however, by the Court’s holding in McKenzie v. Fed. Express
Corp.765 F. Supp. 2d 1222 (C.D. Cal. 2011), finding that Rule 23 need not be
satisified to obtain representative status under PAGA.
39. Ultimately, the Court granted York’s motion for summary judgment,
securing a favorable liability determination with respect to wage statement
liability. The Court denied York’s motion to the extent that she sought a finding
in advance of trial of the amount of PAGA damages per violation. The Court
also denied Starbucks’ cross-motion related to PAGA’s constitutionality.
WORK IN PREPARATION FOR CLASS CERTIFICATION
40. Plaintiff’s Counsel appropriately expended the most hours on class
certification, with over 35% of its total hours devoted to investigation of class
claims, discovery, and multiple rounds of certification briefing. Plaintiffs’
Counsel expended considerable hours investigating class claims, interviewing
class members and obtaining class discovery in advance of a motion for class
certification. Plaintiffs’ Counsel expended additional hours expended more
hours on class certification issues, including oppositions to Starbucks’ motions
denying certification or decertifying the class, than any other task. Absent this
investigation and briefing, Plaintiffs would not have been able to achieve this
class-wide settlement, and the following summarizes some of the key actions.
41. Written Discovery: Plaintiffs’ written discovery requests led to the
production of considerable evidence, including the policies directly at issue (i.e.,
the meal period, rest period, time-keeping, etc.), as well as those policies and
procedures that potentially affected Starbucks’ ability to comply with the Labor
Code. Plaintiffs’ Counsel analyzed over 12,000 pages of documents that were
produced by Starbucks. Plaintiffs’ Counsel identified and obtained the policies
and procedures that would ultimately form the backbone of the motion for class
certification, namely Starbucks’ on-duty meal period policy, the Two-Partner
Rule.
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42. Plaintiffs’ Counsel also sought the time and wage records for the
class members, which were produced only after York prevailed on her motion to
compel. Plaintiffs’ Counsel analyzed the records with the assistance of Dr.
Robert Fountain. The analysis of these records was used in connection with
York’s motion for class certification, and thereafter, in connection with
Plaintiffs’ Counsel’s evaluation of Starbucks’ potential liability for wage
statement violations.
43. Plaintiffs’ Counsel also sought the identities and addresses of the
putative class members, which were produced only after the Court order
following York’s motion to compel. Starbucks produced a list containing the
names and the purported last known addresses and phone numbers of
approximately 124,600 non-exempt employees. (Dkt. No. 33.) This list was
updated on several occasions thereafter.
44. Class Member Interviews and Declarations: Following the
production of the class members’ contact information, Plaintiffs’ Counsel
attempted to contact thousands of class members, ultimately securing
declarations from more than 500, which were submitted in connection with
York’s motion for class certification. The interviews helped Plaintiffs’ Counsel
understand how Starbucks’ policies interact with employees’ actual work duties
and aided counsel’s development of legal theories of certification. These efforts
also resulted in Plaintiffs’ Counsel’s initial contact with Burns, who would
ultimately join this suit as a class representative.
45. Expert Witnesses: Plaintiffs’ Counsel also made use of expert
testimony relating to survey methodology and time record analysis. Plaintiffs’
Counsel retained Dr. Becky Wu of Luth Research to conduct a survey to assess
the breadth of the potential violations across the class. Dr. Jon Krosnick
provided testimony concerning the viability of survey methodology to provide
reliable evidence of class-wide violations and damages. Dr. Robert Fountain
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analyzed the time and wage records to quantify the occurrence of certain events
as identified by the records. All three experts provided expert declarations and
were deposed prior to York’s certification efforts, though their analyses and
opinions, especially Fountain’s, were considered throughout the case and
especially during settlement negotiations. A fourth expert, Sean Chasworth, was
retained to analyze York’s time records (and the time records of those working
with her) to determine potential occurrences of on-duty meal periods during a
Two Partner situation. His declaration was submitted in opposition to Starbucks’
motion for summary judgment related to York’s on-duty meal period claims.
46. Depositions: The parties took approximately 44 depositions in this
matter. Starbucks deposed York, three of York’s expert witnesses, and
approximately 15 class members. Plaintiffs’ Counsel deposed York’s manager,
three corporate designees, Starbucks’ expert witness, and approximately 20 class
members. These depositions provided considerable evidence concerning, inter
alia, the strengths and weaknesses related to the wage statement, on-duty meal
period, and rest period claims. The following is a list of the depositions,
including the date and location:
Date Party Deponent Location
6/12/2009 Defendant Summer York Los Angeles, CA
7/16/2009 Plaintiff Jana Rutt Irvine, CA
9/23/2009 Plaintiff Carolyn Dach Los Angeles, CA
1/21/2010 Plaintiff Robert Decker Seattle, WA
8/9/2010 Plaintiff Becky Wu Los Angeles, CA
8/10/2010 Defendant Victoria Ainis Los Angeles, CA
8/10/2010 Defendant Jenny Le Los Angeles, CA
8/11/2010 Defendant Aaron Nyswonger Los Angeles, CA
8/11/2010 Defendant Diana Suncin Los Angeles, CA
8/12/2010 Defendant Daniel Alvillar Los Angeles, CA
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8/12/2010 Defendant Robert Fountain Los Angeles, CA
8/13/2010 Defendant Jamie Vasquez Los Angeles, CA
8/13/2010 Defendant Anouria Ashe Los Angeles, CA
8/16/2010 Defendant Gustavo Lopez Los Angeles, CA
8/17/2010 Defendant Darrell Harris Los Angeles, CA
8/17/2010 Defendant Vanessa Vazquez Los Angeles, CA
8/18/2010 Defendant Jon Krosnick Los Angeles, CA
8/19/2010 Defendant Noemi Cuevas Los Angeles, CA
8/19/2010 Defendant Jonathan Chambless Los Angeles, CA
8/11/2010 Defendant Christopher Carrasquillo Los Angeles, CA
8/23/2010 Defendant Kandis Snowball Los Angeles, CA
8/24/2010 Defendant Diane Ortiz Los Angeles, CA
9/7/2010 Plaintiff Adrienne Filley San Francisco, CA
9/7/2010 Plaintiff Haley Besthorn Sacramento, CA
9/7/2010 Plaintiff Matthew McCabe Sacramento, CA
9/7/2010 Plaintiff Morgan Murphy Sacramento, CA
9/7/2010 Plaintiff Hingking Su San Francisco, CA
9/8/2010 Plaintiff Brianne Cameron Los Angeles, CA
9/8/2010 Plaintiff Wendy Espinoza Los Angeles, CA
9/8/2010 Plaintiff Garrett Hager San Diego, CA
9/8/2010 Plaintiff Veronica Limon San Diego, CA
9/8/2010 Plaintiff Jourdan Reedus Los Angeles, CA
9/8/2010 Plaintiff Jason Stump San Diego, CA
9/9/2010 Plaintiff Jennifer Hart San Diego, CA
9/9/2010 Plaintiff Jacqueline Hartman San Diego, CA
9/9/2010 Plaintiff Mark Nord San Diego, CA
9/9/2010 Plaintiff Enrique Robledo San Diego, CA
9/10/2010 Plaintiff Brandon Alvarez San Diego, CA
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9/10/2010 Plaintiff Barbara Balaz San Diego, CA
9/10/2010 Plaintiff Eugene Kim San Diego, CA
9/10/2010 Plaintiff Kevin Lopez Los Angeles, CA
9/10/2010 Plaintiff Franchesca Ngyuen San Diego, CA
3/23/2012 Plaintiff Jacqueline Gintz Seattle, WA
8/22/2012 Plaintiff Nathan D. Woods Los Angeles, CA
MOTION PRACTICE RE: CERTIFICATION
47. Starbucks’ Motion to Deny Certification Is Denied: In September
2009, prior to the filing of York’s motion for class certification, Starbucks filed a
pre-emptive motion to deny class certification as to York’s meal and rest period
claims. (Dkt. No. 38.) Starbucks argued, among other things, that predominance
under Rule 23(b)(3) could not be satisfied, specifically by relying on federal
decisions interpreting California’s meal and rest break statutes in a manner that
imposes only the most minimal obligations upon the employer.
48. York opposed the motion on the merits, marshaling considerable
evidence and briefing in a matter of just several days. York relied on the meal
and rest period policies, including Starbucks’ Two-Partner Rule, deposition
testimony from Starbucks’ designees, expert testimony, and approximately 30
declarations from putative class members. York argued that class-wide liability
could be determined by reference to common policies aside from the meal and
rest period policies themselves. Therefore, liability could be determined by
analyzing the impact of Starbucks’ strict customer service standards and
management compensation structure on Labor Code compliance. Plaintiffs’
Counsel also argued that the motion was premature by demonstrating that the
parties had not even completed pre-certification discovery.
49. The Court denied Starbucks’ motion on October 7, 2009 because
discovery had not been completed. (Dkt. No. 48.) Notably, had the Court
granted Starbucks’ motion, the subsequent motion practice and discovery related
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to the meal and rest period claims would not have occurred, and the instant
settlement of on-duty meal period claims and agreement by Starbucks to amend
its meal and rest period policies would not have occurred.
50. Motion for Class Certification: Until the filing of the motion for
class certification, Plaintiffs’ Counsel had successfully rebuffed Starbucks’
challenges to end the litigation. Plaintiffs’ Counsel conducted considerable
discovery, infra, and moved for class certification in July 2010, with 500
supporting declarations from class members. (Dkt. Nos. 88-89.) Having the
benefit of the Ninth Circuit’s then recent, favorable decision in Dukes v. Wal-
Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010), Plaintiffs’ counsel moved for
certification of the wage statement, meal period, rest period and late final pay
claims.
51. Following full briefing by the parties, a hearing was held in January
2011. Notably, just before the class certification hearing, in December 2010, the
U.S. Supreme Court granted review of Dukes. The parties thereafter submitted
supplemental briefs in February 2011 concerning the class definitions, and the
matter stood submitted. (Dkt. Nos. 130-131.)
52. In June 2011, the U.S. Supreme Court reversed the Ninth Circuit’s
rulings in Dukes, and in doing so, dramatically affected Rule 23 jurisprudence.
The Court thereafter ordered additional briefing on the application of Dukes to
the pending class certification motion, which was completed in October, 2011.
(Dkt. Nos. 151-152.) In November 2011, the Court ruled on the pending motion
to certify, ultimately denying certification of the off-the-clock, rest period, late
final pay and wage statement claims. (Dkt. No. 155.)
53. With respect to the meal period claims, the Court certified the class
to the extent that the alleged meal period violations arose as a result of
Starbucks’ Two-Partner Rule. The Court certified the claims finding that
liability could be determined by reference to the policy itself, which York
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alleged violated Wage Order 4-2001(11)(A) (“Unless the employee is relieved of
all duty during a 30 minute meal period, the meal period shall be considered an
‘on duty’ meal period and counted as time worked. An ‘on duty’ meal period
shall be permitted only when the nature of the work prevents an employee from
being relieved of all duty and when by written agreement between the parties an
on-the-job paid meal period is agreed to.”).
54. Plaintiffs also prevailed in a contested motion to obtain the full class
list for the distribution of the class notice. (Dkt. No. 165.) Plaintiffs, however,
did not succeed in their motion to reconsider the order denying certification of
the other subclasses. (Dkt. No. 192) Starbucks also obtained an order
decertifying the class based on York’s lack of typicality. (Dkt. No. 206.)
However, that order was issued after the parties agreed in principle to settle the
action in mediation. And because Plaintiffs continued to pursue the other non-
certified claims in their PAGA action, they were not precluded from a substantial
recovery in civil penalties.
CASE MANAGEMENT
55. The case management billing is also fairly high due to the number
of day-to-day tasks involved, including noticing and scheduling depositions,
reviewing and propounding discovery, and coordinating massive telephone
campaigns, as well as working with experts. Due to contacts established
between Plaintiffs’ Counsel and class members as a result of the campaign,
Plaintiffs’ Counsel also fielded thousands of calls from class members inquiring
about the case.
TRIAL PREPARATION
56. Along with preparing briefs for the contested motions for summary
adjudication and class certification in the summer and fall of 2012, the parties
also engaged in substantial trial preparation due to the impending December 4,
2012 trial date. In preparing for trial of a class and representative action,
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Plaintiffs’ Counsel:
• Reviewed deposition records and declarations to find reliable and
appropriate witnesses for trial;
• Interviewed prospective witnesses;
• Developed ideas to introduce representative evidence at trial;
• Developed trial strategies and theories;
• Prepared time-intensive pre-trial documents, including jury
instructions;
• Planned for exhibits and evidentiary objections.
Plaintiffs’ Counsel drafted and ultimately filed pre-trial documents pursuant to
Local Rule 16, and was actively preparing trial documents and motions when the
action settled.
MEDIATION AND SETTLEMENT EVALUATION
57. The parties engaged in private mediation on November 9, 2010,
before Hon. Edward A. Panelli, but were unable to reach an agreement.
Nonetheless, the mediation and preceding preparations played a significant role
in the final settlement of this matter. Specifically, the parties, with Justice
Panelli’s assistance, analyzed the claims and evidence, and ultimately, provided
the parties with a framework for continued negotiations. On October 30, 2012,
the parties mediated before David A. Rotman of Gregorio, Haldeman & Rotman.
58. Mr. Rotman was chosen by the parties primarily because of his vast
experience successfully litigating and mediating wage and hour class actions.
The negotiations were at all times arms-length and non-collusive, evidenced by
Mr. Rotman’s participation as the mediator.
59. Notably, the non-collusive nature of the settlement is also evidenced
by the parties’ efforts in resolving the class relief only, leaving the issue of
Plaintiffs’ Counsel’s fees to continuing negotiations and/or a contested fee
motion before the Court. In this case, the parties have no agreement on
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Plaintiffs’ Counsel’s attorneys’ fees, and moreover, any award of fees will not
affect the class relief.
60. In preparation for the mediation, Plaintiffs’ Counsel calculated the
potential exposure of the wage statement and on-duty meal period claims based
on a reasonable assessment of the evidence, especially including the reports and
analyses of the time records by Dr. Robert Fountain (York’s expert) and Woods
(Starbucks’ expert), as well as anecdotal evidence obtained from class members
with whom Plaintiffs’ Counsel had been in contact.
61. Wage Statements: York had obtained a favorable ruling that
Starbucks’ wage statement violated Labor Code section 226(a) because it did not
contain a numeric overtime rate. The Court also found that, because York had
not provided sufficient evidence of an “injury” to obtain statutory damages under
Labor Code section 226(e), the claim could not be certified. Yet, Plaintiffs’
position on appeal was strengthened by the Legislature’s amendments to Labor
Code section 226(e)’s injury requirement. Moreover, York had properly
obtained standing under PAGA, providing her with an opportunity to recover
PAGA damages measured by reference to all aggrieved employees.
62. Based on Fountain’s analysis of a sampling of time records and
Plaintiffs’ Counsel’s interviews with class members, Plaintiffs’ Counsel
determined that approximately 30% of non-exempt employees who had worked
within the one year statute of limitations had at least one pay period in which
overtime was worked.
63. Additionally, Plaintiffs’ Counsel’s assessment of the settlement’s
fairness was influenced by a panoply of factors, among them, the following:
The parties’ respective positions regarding liability under Labor
Code section 226(a) vis-à-vis the developing case law and statutory
amendments, at both trial and appellate levels;
The parties’ respective positions concerning whether representative
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status under PAGA could be obtained without class certification
under Rule 23;
The parties’ respective positions concerning the constitutionality of
PAGA;
The parties’ respective positions concerning the required level of
“injury” under Labor Code section 226(e) and PAGA, especially in
light of the developing law and statutory amendments;
The difficulty of establishing the total number of wage statement
violations given Starbucks’ argument that representative evidence
was impermissible under PAGA;
The Court’s ability to reduce maximum PAGA penalties pursuant to
Labor Code section 2699 “based on the facts and circumstances of
the particular case;” and,
The costs and delay of relief associated with trial and appellate
review.
64. On-Duty Meal Periods: Plaintiffs’ Counsel considered a number of
factors when determining whether the settlement of the on-duty meal period
claims was fair and reasonable. Starbucks had maintained throughout this
litigation that the two-partner situation was rare, having occurred at the bottom
10% of its stores (in terms of staffing), thus reducing Starbucks’ exposure
considerably. Starbucks’ expert Woods testified that his analysis of the time
records for the 150-store sample revealed approximately 15,000 potential
instances of meal periods taken during a two-partner situation. Thus, assuming
that each was a violation (and Starbucks contended that such an analysis was
inconclusive), and assuming that the sample was in fact representative (also in
dispute), there would be no more than 170,000 violations.
65. Settlement: Ultimately, with these considerations and others in
mind, Plaintiffs’ Counsel negotiated a settlement of the wage statement and on-
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duty meal period claims for $3,000,000. Based on my experience litigating
employment related class actions (see infra), and my investigation and
evaluation of the evidence and law, I conclude that the monetary relief
negotiated on behalf of the class is fair, reasonable, and adequate.
66. The parties have also agreed to non-monetary relief, specifically,
that Starbucks will conform its wage statements so that they comply with the
Court’s substantive findings, utilize on-duty meal period agreements, and amend
its California rest break policy to conform with the holding in Brinker Rest.
Corp. v. Superior Court, 53 Cal. 4th 1004 (2012) related to the timing of such
breaks. Based on my experience litigating employment related class actions (see
infra), and my investigation and evaluation of the evidence and law, I conclude
that the non-monetary relief negotiated on behalf of the class is fair, reasonable,
and adequate.
67. The parties were unable to reach an amount to be allocated for
attorneys’ fees, but were able to agree to have the matter resolved through a
contested fee motion. The parties agreed that Plaintiffs may apply the Court for
their lodestar without a multiplier, and Starbucks’ has the option to oppose the
fee request.
68. After the principal terms were agreed to, Plaintiffs began preparing
the motion for preliminary approval of the settlement, as well continuing to
negotiate the exact language of the settlement stipulation. Given the length and
complexity of the case, Plaintiffs expended considerable effort drafting the
motion for preliminary approval. Additional work was needed to fine-tune the
mechanics of an effective claims procedure for claim submissions arising from
the “Two Partner” situation. The Court granted preliminary approval of the
settlement on June 10, 2013. (Dkt. No. 223.)
MOTION FOR ATTORNEYS FEES AND LOCAL RULE 7-3
69. Local Rule 7-3 Requirements Are Met. The parties stipulated to
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resolve the fee dispute through a contest motion, thereby establishing that the
parties could not agree to resolve the issue informally. Nonetheless, Plaintiffs’
Counsel met and conferred with Starbucks’ counsel after the hearing on
preliminary approval of the class settlement on June 10, 2013 in an effort to
resolve the matter informally. The parties discussed, but were unable to agree,
on a procedure to resolve the fee dispute. Starbucks’ counsel agreed that
Plaintiffs should file their motion for attorneys’ fees.
70. Because of the contested nature of this fee motion, Plaintiffs’
Counsel necessarily must devote a number of hours to careful research and
briefing. The hours expended on the fee application is thus reasonable and
justifiable.
71. Plaintiffs’ Counsel reserves the right to supplement their lodestar
with hours expended on the reply memorandum in support of Plaintiffs’ motion
for attorneys fees, which is expected to be substantial.
LODESTAR AND LITIGATION COST ANALYSIS
72. Plaintiffs’ Counsel seeks attorneys’ in the amount of their lodestar,
or $4,220,501. This lodestar figure represents the hours worked by attorneys at
Capstone and Initiative over the nearly five years of litigation.
73. Time records were provided to me by former counsel Initiative. In
reviewing the time records for both firms, my colleagues and I removed time for
any timekeeper who reported working on the case for less than 50 hours. This
was a significant write-off because Plaintiffs’ massive interview campaign—
interviewing thousands of Starbucks’ employees—entailed a significant time
commitment from a number of associates. And due to the dramatic shifts in
controlling law, Plaintiffs’ Counsel also called on attorneys with specific
expertise in the applicable area for research and analysis. In the end, Plaintiffs’
Counsel voluntarily wrote off nearly 10% of the actual total billable amount of
over $4,750,000. The submitted lodestar thus represents a discounted figure.
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74. The chart below4 is a detailed summary indicating the amount of
time spent by each partner and associate who was involved in the litigation, the
current hourly rate for each attorney, and the resulting lodestar, based on our
review of Plaintiffs’ Counsel’s billing records.
Lodestar Summary Lawyer Experience Rate5 Hours Lodestar
Joshua Carlon 5th Year $365.00 145.4 $53,071.00 Kai Hsiao 5th Year $365.00 124.9 $45,588.50
Nicole LeBlanc 5th Year $365.00 111.7 $40,770.50 Enoch Kim 5th Year $395.00 57.8 $22,831.00
Arnab Banerjee 6th Year $420.00 451.2 $189,504.00 Eduardo Santos 6th Year $420.00 557.3 $234,066.00 Megan Momeni 6th Year $420.00 111.9 $46,998.00
Olesya Mikhaylova 6th Year $420.00 205.2 $86,184.00
Dina Glucksman 7th Year $445.00 163.4 $72,713.00 Jennifer Grock 7th Year $445.00 1065.6 $474,192.00
Sara Adibisedeh 7th Year $445.00 85.5 $38,047.50 Nathan Lowery 8th Year $470.00 778.9 $366,083.00
Orlando Arellano 9th Year $490.00 81.6 $39,984.00 Neda Roshanian 11th Year $520.00 159.8 $83,096.00
Ryan Wu 11th Year $550.00 201.1 $110,605.00 Gene Williams 13th Year $590.00 392.9 $231,811.00
4 Although courts applying California law, whether federal or state, do not
require a review of detailed timesheets before approving attorneys’ fees. Upon request, Initiative and Capstone will submit its detailed, contemporaneously-entered timesheets for in camera review. See Winterrowd v. American General Annuity Ins. Co., 556 F.3d 815, 827 (9th Cir. 2009) (“In California, an attorney need not submit contemporaneous time records in order to recover attorneys’ fees.”); Dixon v. State Bar, 39 Cal. 3d 335, 344 (1985) (an attorney need not submit contemporaneous time records to recover attorney fees); Chavez v. Netflix, Inc., 162 Cal. App. 4th 43, 64 (2008) (“detailed timesheets are not required of class counsel to support fee awards in class action cases”)
5 The hourly rates for the attorneys listed above are the 2013 billing rates.
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Lodestar Summary Lawyer Experience Rate5 Hours Lodestar
Matthew Theriault 13th Year $610.00 2539 $1,548,790.00 Robert Byrnes 14th Year $610.00 699.6 $426,756.00
Valerie Kincaid 28th Year $670.00 163.3 $109,411.00
Total 8,096.1 $4,220,501.50
75. As shown above, the hourly rates for the associates above (i.e.,
attorneys with 5-7 years of experience) range from $365 to $445 per hour. These
rates are comparable to those charged by the Los Angeles office of Sheppard
Mullin Richter & Hampton (“Sheppard Mullin”), a prominent law firm with a
significant wage and hour class action defense practice. Sheppard Mullin’s
associate rates range from $275 to $635 an hour. See 2011 Nationwide Sampling
of Law Firm Billing Rates – The National Law Journal, December 19, 2011 (a
true and correct copy of which is attached as Exhibit A). Capstone’s associate
hourly rates are also comparable to those of Manatt, Phelps & Phillips (“Manatt
Phelps”), a well-known law firm based in Los Angeles. Manatt Phelps’ average
associate hourly rate is $464. Id. The average hourly rate for the associates
above is $410. The hourly rates for the senior counsel and partners listed above
(i.e., attorneys with over seven years of experience) range from $470 to $670.
These rates are comparable to those charged by the Los Angeles offices of
Sheppard Mullin ($505 to $860) and Manatt, Phelps ($540 to $850). Id.
76. Counsel’s rates are comparable to those judicially approved for
other plaintiff’s firms. See, e.g., Faigman v. AT&T Mobility LLC, 2011 U.S.
Dist. LEXIS 15825, * 2 (N.D. Cal. Feb. 15, 2011) (approving hourly rates of
$650 an hour for partner services and $500 an hour for associate attorney
services); Richard v. Ameri-Force Mgmt. Servs., Inc. (San Diego Super. Ct.,
August 27, 2010, No. 37-2008-00096019) ($695 to $750 an hour for partners;
$495 an hour for associates); Barrera v. Gamestop Corp. (C.D. Cal. Nov. 29,
Case 2:08-cv-07919-GAF-PJW Document 224-1 Filed 08/09/13 Page 29 of 37 Page ID #:9553
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2010, No. CV 09-1399) ($700 an hour for partners; $475 an hour for associates);
and Anderson v. Nextel Retail Stores, LLC (C.D. Cal. June 20, 2010, No. CV 07-
4480) ($655 to $750 an hour for partners; $300 to $515 an hour for associates).
77. Initiative and Capstone’s rates have steadily remained reasonable
and competitive, and have been consistently approved by Los Angeles-based
courts. The Los Angeles County Superior Court approved counsel’s rates in the
matter of Sheldon v. AHMC Monterey Park Hospital LP, Case No. BC440282
(L.A. Super. Ct. Feb. 22, 2013) (“The Court finds that the requested attorneys’
fees award is reasonable for a contingency fee in a class action such as this.
Moreover, Capstone [has] provided sufficient evidence to establish that the
award is appropriate by way of their lodestar/multiplier cross-check,
demonstrating to the Court’s satisfaction that the attorney rates and hours billed
to the litigation were reasonable.”) and Zamora v. Balboa Life & Casualty LLC,
Case No. BC360026 (L.A. Super. Ct. Feb. 13, 2013) (“Plaintiffs’ counsel have
provided sufficient evidence to establish that the award is less than the
reasonable lodestar expended on this case [i.e.] the reasonably hourly rates
multiplied by time spent. . . .”); see also Weisbarth v. Banc West Investment
Services Inc., Case No. BC422202 (L.A. Super. Ct. May 24, 2013); Glover v.
Petco Animal Supplies, Inc., Case No. BC463794 (L.A. Super. Ct. May 7, 2013);
Zelaya v. Destination Long Point, Inc., Case No. BC472286 (L.A. Super. Ct.
May 7, 2013). These rates were approved in other jurisdictions in California as
well. See Silva v. Jo-Ann Stores, Inc., Case No. 30-2011-000526396-CU-OE-
CXC (Orange County Super. Ct. July 18, 2013); Guerrero v. R.R. Donnelley &
Sons Co., Case No. RIC 10005196 (Riverside County Super. Ct. July 16, 2013);
Smith v. Incredible Entertainment, Inc., Case No. SCV0026038 (Placer County
Super. Ct. June 20, 2013).
78. The following chart that summarizes the hours worked by categories
of task based on our review of Plaintiffs’ Counsel’s billing records for this case:
Case 2:08-cv-07919-GAF-PJW Document 224-1 Filed 08/09/13 Page 30 of 37 Page ID #:9554
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Categories Hours Case Management 375.6Class Certification 2996.3Court Appearances (Including Prep.) 47.8Depositions 871.8Motion for Attorneys’ Fees 123.6Investigation & Legal Research 346.9Litigation Strategy 163Motion Practice/Legal Research 1747.6Settlement and Mediation 677.5Trial preparation 359.5Discovery 386.5
Total 8096.1
79. In addition to expending professional time, counsel has advanced
$246,511 in costs and expenses. The itemized breakdown of these expenses is
set forth in below and is based on Plaintiffs’ Counsel’s records containing the
cost and expense items.
Costs and Expenses Total Copying, Printing & Scanning $6,122.70 Court Fees, Filings & Service of Process $3,872.78 Court Reporters, Transcripts & Depositions $32,576.46 Delivery & Messenger (UPS, FedEx, messenger) $1,680.87 Expert & Consulting Services $4,760.49 Dr. Robert Fountain $10,966.53 Dr. Jon Krosnick $34,173.88 Legal Research Services (PACER, Lexis, etc.) $10,479.86 Mediation Fees $12,775.00 Postage & Mailings $28,245.58 Skip Trace Search to Update Contact Information $44,187.45 Telephone (Long distance, conference calls) $6,928.53 Travel (Airfare, Mileage, Parking, etc.) $10,987.14 Investigation & Research Services $910.00 Costs of Processing Discovery / Document Management & $18,562.51
Case 2:08-cv-07919-GAF-PJW Document 224-1 Filed 08/09/13 Page 31 of 37 Page ID #:9555
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Costs and Expenses Total Production
Case Informational Website Development $81.99 Class Survey and Polling Costs $19,200.00
Total $246,511.77
80. Although most of the expense items are self-evident (e.g., Court
Fees, Court Reporters), or their necessity was explained above (service payments
to Dr. Fountain and Dr. Krosnick), a few items require further elaboration. For
travel costs, the expenditures can be further broken down as follows:
Breakdown of Travel Total Depositions $8,701.13 Hearings $290.25 Mediations $1,932.26 Meetings with Client $63.50
Total $10,987.14
Additionally, for costs of processing discovery and document production, these
expenses consisted of payment to third-party companies to process and analyze
discovery, and to print out volumes of 13,000+ pages of discovery production
produced by Starbucks in CD form. Moreover, given the 160,000+ potential
class size, the management of class member contact information also required
substantial expense. These costs and expenses were necessary to efficiently
prosecute this matter through settlement.
I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct. Executed this 9th day of August
2013, at Los Angeles, California.
Matthew Theriault
Case 2:08-cv-07919-GAF-PJW Document 224-1 Filed 08/09/13 Page 32 of 37 Page ID #:9556
Exhibit A
Exhibit A to Declaration of Matthew T. Theriault Page 32
Case 2:08-cv-07919-GAF-PJW Document 224-1 Filed 08/09/13 Page 33 of 37 Page ID #:9557
A Nationwide Sampling of Law Firm Billing Rates – The National Law Journal
Page 1
Firm Name Principal or Largest Office
Average full-time
equivalent Attorneys*
Firmwide Average Billing Rate
Firmwide Median Billing Rate
Partner Billing Rate: High
Partner Billing Rate: Low
Partner Billing Rate:
Average
Partner Billing Rate:
Median
Associate Billing Rate: High
Associate Billing Rate: Low
Associate Billing Rate:
Average
Associate Billing Rate:
Median Baker, Donelson, Bearman, Caldwell & Berkowitz
Memphis, Tenn.
527 $311 $310 $595 $250 $357 $345 $315 $160 $228 $225
Best Best & Krieger
Riverside, Calif.
195 $358 $360 $575 $275 $417 $420 $375 $205 $265 $240
Briggs and Morgan
Minneapolis 185
$625 $325
$305 $230
Broad and Cassel
Orlando, Fla. 160 $377 $350 $575 $295 $435 $395 $350 $180 $265 $265
Bryan Cave St. Louis 908 $475 $460 $795 $375 $565 $553 $540 $200 $356 $360
Butzel Long Detroit 176 $700 $325 $440 $425 $225 $274
Carlton Fields
Tampa, Fla. 270 $397 $400 $815 $320 $470 $470 $380 $195 $262 $265
Cozen O'Connor
Philadelphia 504 $439 $410 $900 $305 $510 $490 $550 $225 $330 $330
Day Pitney Parsippany, N.J.
324 $447 $450 $960 $380 $537 $525 $470 $235 $317 $315
Dickinson Wright
Detroit 229
$600 $325
$320 $200
Dickstein Shapiro
Washington 335 $560 $550 $1,000 $540 $680 $670 $545 $225 $435 $465
Dinsmore & Shohl
Cincinnati 407 $308 $295 $630 $150 $373 $370 $310 $130 $217 $220
DLA Piper New York 3348 $585 $615 $1,120 $530 $747 $730 $730 $320 $508 $510
Dorsey & Whitney
Minneapolis 567 $426 $405 $810 $295 $526 $525 $465 $190 $294 $275
Duane Morris
Philadelphia 629 $503 $500 $875 $375 $575 $570 $530 $225 $365 $365
Dykema Gossett
Detroit 333 $406 $400 $665 $310 $482 $485 $395 $260 $309 $305
Epstein Becker & Green
New York 300 $428 $425 $850 $350 $519 $500 $550 $195 $341 $325
Exhibit A to Declaration of Matthew T. Theriault Page 33
Case 2:08-cv-07919-GAF-PJW Document 224-1 Filed 08/09/13 Page 34 of 37 Page ID #:9558
A Nationwide Sampling of Law Firm Billing Rates – The National Law Journal
Page 2
Firm Name Principal or Largest Office
Average full-time
equivalent Attorneys*
Firmwide Average Billing Rate
Firmwide Median Billing Rate
Partner Billing Rate: High
Partner Billing Rate: Low
Partner Billing Rate:
Average
Partner Billing Rate:
Median
Associate Billing Rate: High
Associate Billing Rate: Low
Associate Billing Rate:
Average
Associate Billing Rate:
Median Fitzpatrick, Cella, Harper & Scinto
New York 168
$730 $460
$525 $440 $275
$325
Fox Rothschild
Philadelphia 450 $413 $420 $725 $325 $486 $483 $455 $190 $297 $295
Frost Brown Todd
Cincinnati 401 $296 $295 $515 $205 $340 $340 $265 $150 $200 $200
Gardere Wynne Sewell
Dallas 265 $435 $450 $815 $380 $550 $550 $500 $225 $325 $320
Gibbons Newark, N.J. 199 $505 $450 $725 $400 $563 $505 $475 $285 $380 $320
Harris Beach
Rochester, N.Y.
176
$390 $275
$260 $160
Hiscock & Barclay
Syracuse, N.Y. 174 $269 $240 $750 $195 $304 $265 $350 $150 $207 $195
Hodgson Russ
Buffalo, N.Y. 199
$685 $240 $378 $360 $420 $180 $234 $225
Holland & Knight
Washington 910 $445 $455 $895 $300 $530 $520 $495 $175 $295 $290
Hughes Hubbard & Reed
New York 300 $633 $615 $990 $625 $828 $800 $695 $270 $533 $540
Husch Blackwell
St. Louis 551 $341 $340 $850 $225 $395 $390 $425 $175 $226 $210
Jackson Kelly
Charleston, W.Va.
170 $275 $275 $505 $255 $319 $325 $260 $155 $208 $205
Kaye Scholer
New York 425 $661 $665 $1,080 $685 $831 $835 $705 $310 $519 $525
Kelley Drye & Warren
New York 321 $474 $400 $925 $480 $634 $645 $595 $275 $425 $420
Knobbe, Martens, Olson & Bear
Irvine, Calif. 268 $439 $415 $735 $415 $525 $500 $495 $295 $346 $345
Lane Powell Seattle 180 $405 $425 $645 $340 $460 $450 $360 $225 $295 $285
Exhibit A to Declaration of Matthew T. Theriault Page 34
Case 2:08-cv-07919-GAF-PJW Document 224-1 Filed 08/09/13 Page 35 of 37 Page ID #:9559
A Nationwide Sampling of Law Firm Billing Rates – The National Law Journal
Page 3
Firm Name Principal or Largest Office
Average full-time
equivalent Attorneys*
Firmwide Average Billing Rate
Firmwide Median Billing Rate
Partner Billing Rate: High
Partner Billing Rate: Low
Partner Billing Rate:
Average
Partner Billing Rate:
Median
Associate Billing Rate: High
Associate Billing Rate: Low
Associate Billing Rate:
Average
Associate Billing Rate:
Median Lathrop & Gage
Kansas City, Mo.
281 $337 $340 $735 $275 $390 $390 $410 $205 $246 $245
Lewis, Rice & Fingersh
St. Louis 162 $275
$470 $270
$320 $150
Lowenstein Sandler
Roseland, N.J. 249 $478 $480 $895 $435 $613 $595 $660 $250 $400 $390
Manatt, Phelps & Phillips
Los Angeles 322 $602 $620 $850 $540 $676 $670 $550 $215 $464 $500
McElroy, Deutsch, Mulvaney & Carpenter
Morristown, N.J.
272 $245 $275 $575 $295 $350 $375 $325 $185 $250 $235
McKenna Long & Aldridge
Atlanta 425 $472 $455 $800 $405 $562 $540 $510 $215 $374 $375
Michael Best & Friedrich
Milwaukee 208 $321 $310 $650 $245 $413
$310 $205 $241
Miller & Martin
Chattanooga, Tenn.
184 $313 $325 $610 $240 $369 $375 $275 $185 $215 $215
Nelson Mullins Riley & Scarborough
Columbia, S.C. 399 $318 $310 $850 $220 $412 $400 $350 $170 $255 $250
Nexsen Pruet
Columbia, S.C. 178
$550 $235
$265 $170
Patton Boggs
Washington 512 $546 $540 $990 $410 $659 $645 $570 $240 $410 $415
Pepper Hamilton
Philadelphia 459
$825 $380 $557
$460 $235 $344
Perkins Coie Seattle 693 $462 $875 $285 $550 $545 $590 $215 $368
Phelps Dunbar
New Orleans 280 $236 $225 $465 $190 $281 $275 $245 $150 $189 $190
Polsinelli Shughart
Kansas City, Mo.
466
$630 $275
$335 $205
Saul Ewing Philadelphia 220 $431 $450 $750 $350 $502 $490 $495 $245 $326 $300
Exhibit A to Declaration of Matthew T. Theriault Page 35
Case 2:08-cv-07919-GAF-PJW Document 224-1 Filed 08/09/13 Page 36 of 37 Page ID #:9560
A Nationwide Sampling of Law Firm Billing Rates – The National Law Journal
Page 4
Firm Name Principal or Largest Office
Average full-time
equivalent Attorneys*
Firmwide Average Billing Rate
Firmwide Median Billing Rate
Partner Billing Rate: High
Partner Billing Rate: Low
Partner Billing Rate:
Average
Partner Billing Rate:
Median
Associate Billing Rate: High
Associate Billing Rate: Low
Associate Billing Rate:
Average
Associate Billing Rate:
Median Schulte Roth & Zabel
New York 406 $615 $630 $935 $770 $846 $840 $675 $285 $608 $580
Seyfarth Shaw
Chicago 702 $437 $425 $790 $355 $528 $525 $505 $225 $341 $340
Sheppard, Mullin, Richter & Hampton
Los Angeles 465
$860 $505
$635 $275
Shumaker, Loop & Kendrick
Toledo, Ohio 208 $345 $365 $555 $265 $364 $375 $320 $195 $252 $250
Stoel Rives Portland, Ore. 373 $385 $395 $625 $320 $451 $450 $500 $195 $292 $275
Strasburger & Price
Dallas 181 $363 $362 $630 $211 $395 $397 $332 $199 $250 $238
Thompson & Knight
Dallas 319 $520 $520 $875 $440 $594 $585 $460 $250 $358 $350
Thompson Coburn
St. Louis 325
$750 $315
$445 $195
Ulmer & Berne
Cleveland 179 $316
$585 $280 $405
$390 $200 $260
Vedder Price
Chicago 246 $445 $445 $735 $295 $500 $490 $520 $265 $345 $335
Winstead Dallas 265 $406 $680 $365 $477 $410 $215 $301
Winston & Strawn
Chicago 868 $557 $550 $1,130 $580 $713 $700 $600 $350 $434 $413
Wyatt, Tarrant & Combs
Louisville, Ky. 181 $312 $350 $500 $240 $325 $375 $275 $180 $220 $235
Exhibit A to Declaration of Matthew T. Theriault Page 36
Case 2:08-cv-07919-GAF-PJW Document 224-1 Filed 08/09/13 Page 37 of 37 Page ID #:9561