Henshaw v. Home Depot Declaration Norman Blumenthal Supporting Settlement

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BLUMENTHAL, NORDREHAUG & BHOWMIK Norman B. Blumenthal (State Bar #068687) Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) 2255 Calle Clara La Jolla, CA 92037 Telephone: (858)551-1223 Facsimile: (858) 551-1232 Attorneys for Plaintiffs ADDITIONAL COUNSEL LISTED ON SECOND PAGE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - SOUTHERN DIVISION MARTIN HENSHAW, VERN SOUZA, JENNIFER WALTON and DEBORAH MOULTON on behalf of themselves and all persons similarly situated, Plaintiffs, vs. HOME DEPOT U.S.A., INC., and DOES 1 through 50, Defendants. _______________________________ PAUL HEINZMAN, on behalf of himself and all others similarly situated, Plaintiff, vs. HOME DEPOT U.S.A., INC., a Delaware Corporation, and DOES 1 through 10, inclusive, Defendants. Case No. 8:10-cv-01392-DOC-RNB (Consolidated with Case No. 8:10-cv- 01827-CJC-RNB) DECLARATION OF NORMAN BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS FEES, COSTS AND EXPENSES Hearing Date: August 6, 2012 Hearing Time: 8:30 p.m. Judge: Hon. David O. Carter Court No.: 9D Action Filed: August 12, 2010 DECLARATION OF NORMAN BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS FEES, COSTS AND EXPENSES Case No. 8:10-cv-01392-DOC-RNB Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 1 of 94 Page ID #:1278 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES OF DARREN J. CAMPBELL, APC Darren J. Campbell (State Bar #223088) 2030 Main Street, Suite 1300 Irvine, CA 92614 Telephone: (949) 260-4901 Facsimile: (949) 271-4046 THE COOPER LAW FIRM, P.C. Scott B. Cooper (State Bar #174520) 2030 Main Street, Suite 1300 Irvine, CA 92614 Telephone: (949) 724-9200 Facsimile: (949) 724-9255 THE CARTER LAW FIRM Roger R. Carter (State Bar #140196) 2030 Main Street, 13th Floor Irvine, CA 92614 Telephone: (949) 260-4737 Facsimile: (949) 260-4754 Attorneys for Plaintiffs DECLARATION OF NORMAN BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS FEES, COSTS AND EXPENSES -1- Case No. 8:10-cv-01392-DOC-RNB Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 2 of 94 Page ID #:1279 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Norman B. Blumenthal, declare as follows: 1. I am a partner of the law firm of Blumenthal, Nordrehaug & Bhowmik, counsel of record for Plaintiffs and Class Counsel in this matter. As such, I am fully familiar with the facts, pleadings and history of this matter. I am submitting this declaration in support of Plaintiffs’ motion for an award of attorneys’ fees in connection with services rendered in the above-entitled action and the reimbursement of expenses incurred in the course of this litigation. The following facts are within my own personal knowledge, and if called as a witness, I could and would testify competently to the matters stated herein. 2. Over the course of the litigation during the year, a number of attorneys in my firm have worked on this matter. Their credentials are reflected in the Blumenthal, Nordrehaug & Bhowmik firm resume, a true and correct copy of which is attached hereto as Exhibit #1. Some of the major cases our firm has undertaken are also set forth in Exhibit #1. The bulk of the attorneys involved in this matter at Blumenthal, Nordrehaug & Bhowmik have had extensive litigation experience, much of it in the area of class actions, unfair business practices and other complex litigation. The attorneys at my firm also have experience in cases involving labor code violations and overtime claims. Class Counsel has litigated similar overtime cases against other employers. It is this level of experience which enabled the firm to undertake the instant matter and to successfully combat the resources of the defendants and their capable and experienced counsel. 3. Summary of the Proposed Settlement. A true and correct copy of the Settlement Agreement ("Agreement") is attached hereto as Exhibit #2. Class Counsel successfully negotiated a Settlement with Defendant Home Depot U.S.A., Inc. (“Home Depot” or “Defendant”) which provides for Defendant to the gross settlement amount of $1,600,000 (the "settlement fund"). (Settlement Agreement at §IV(D)(1).) This amount includes all amounts to be paid as DECLARATION OF NORMAN BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS FEES, COSTS AND EXPENSES -2- Case No. 8:10-cv-01392-DOC-RNB Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 3 of 94 Page ID #:1280 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 settlement payments, interest, costs, statutory and civil penalties, named plaintiff enhancements and attorneys' fees. (Settlement Agreement at § IV(D)(1).) This is a non-reversionary settlement, which means that once the Settlement Agreement is final and effective, no part of the settlement fund shall revert to Home Depot. Preliminary approval of the Settlement was granted on April 10, 2012. [Doc. No. 72]. 4. The outcome of this case would have been uncertain and fraught with risks. (a) The complexities and duration of further litigation cannot be overstated. Defendant asserted substantial and real defenses to this action. Even if Plaintiffs were successful on class certification and at trial, there is little doubt that Defendant would post a bond and appeal in the event of an adverse judgment. A post-judgment appeal by Defendant would have required many more years to resolve, assuming the judgment was affirmed. If the judgment was not affirmed in total, then the case could have dragged on for years after the appeal. The benefits of a guaranteed recovery today, of the very remedy that Plaintiffs would seek at trial, outweigh an uncertain result three or more years in the future. (b) Both the Plaintiffs and Class Counsel recognize the expense and length of a trial in this action against Defendant through possible appeals which could take at least another three years. Class Counsel also have taken into account the uncertain outcome and risk of litigation, especially in complex actions such as this Action. Class Counsel are also mindful of and recognize the inherent problems of proof under, and alleged defenses to, the claims asserted in the Action. Moreover, post trial motions and appeals would have been inevitable. Costs would have mounted and recovery would have been delayed if not denied, thereby reducing the benefits of an ultimate victory. Plaintiffs and Class Counsel believe that the settlement set forth in the Settlement Agreement confers substantial benefits upon the Settlement Class and each of the Settlement Class Members. Based upon their evaluation, Plaintiffs and Class Counsel have determined that the settlement set forth in the Settlement Agreement is in the best interest of the Class. DECLARATION OF NORMAN BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS FEES, COSTS AND EXPENSES -3- Case No. 8:10-cv-01392-DOC-RNB Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 4 of 94 Page ID #:1281 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Attorneys’ Fees Requested Are Fair and Reasonable and Should Be Approved 5. The Agreement For The Payment of Fees and Expenses Should Is Appropriate And Should Be Enforced (a) Here, as part of the Settlement, Defendant agreed to an award of $402,657.14 for attorneys’ fees, which is equivalent 25.2% the cash value of the common fund created by the Settlement. Such a fee is commensurate with what the market would provide for similar services and the Court therefore can most certainly enforce the agreement. (b) In the class action context, that means “attempting to award the fee that informed private bargaining, if it were truly possible, might have reached.” Here, informed arms-length bargaining between experienced counsel for the Class and Defendant resulted in Defendant bargaining Class Counsel’s award to an attorneys’ fee award that is equivalent to 25.2% of the settlement fund, which at the accepted benchmark for fees. The bargaining was clearly adversarial. Such bargaining is obviously the best measure of the market for fees. Moreover, fee awards in actions brought under the same or comparable statutes as this one have resulted in substantially higher fees than the sum sought by Class Counsel herein, further reflecting the accurate market value of the award requested. (c) The requested fee award, agreed to by the parties as part of the Settlement Agreement, should be approved. The requested fee award was bargained for during arms’ length adversarial bargaining by counsel for each of the parties as part of the Settlement, and is substantially less than sums awarded in litigation. 6. Class Counsel’s Fee is Appropriate Under the Percentage of the Fund Method (a) Here, as part of the Settlement, Defendant agreed to an fee award of equal to 25.2% of the settlement fund for attorneys’ fees. Such a fee is commensurate with what the market would provide for similar services and the Court therefore can most certainly enforce the agreement. This settlement confers a significant pecuniary benefit DECLARATION OF NORMAN BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS FEES, COSTS AND EXPENSES -4- Case No. 8:10-cv-01392-DOC-RNB Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 5 of 94 Page ID #:1282 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on a class of individuals consisting of more than 1,300 Class Members. Federal courts have long recognized that an appropriate method for determining the award of attorneys’ fees is based on a percentage of the total value of benefits afforded to class members by the settlement. (b) Fee determinations in both common fund and statutory fee situations are incapable of mathematical precision because of the intangible factors that must be resolved in the court's discretion based on the circumstances of each particular case. See, A. Conte, Attorney Fee Awards, 2nd Ed., § 207, at 44. In determining an appropriate fee in a common fund case, a court must decide, based on the unique posture of each case, what percentage of the common fund would most reasonably compensate Class Counsel given the nature of the litigation and the performance of counsel. For attorneys’ fees awards, the Ninth Circuit has “established 25% of the fund as the benchmark award that should be given.” Here, Class Counsel requests an attorneys’ fee award that is 25.2% of the common fund. Class Counsel’s therefore fee request represents an amount that is at the low end of the accepted benchmark and is therefore undoubtedly reasonable. (c) In defining a reasonable fee, the Court’s should mimic the marketplace. A review of class action settlements over the past 10 years shows that the courts have historically awarded fees in the range of 20% to 50%, depending upon the circumstances of the case. Class Counsels’ requested fees equate to 25.2% of the total value of the case, a percentage well within the range of reasonableness given the monetary results obtained for the Class, the risks undertaken, and the skill of the prosecution. As a result, a fee which is at the low end of the benchmark for common fund cases therefore mimics the marketplace because this was the amount negotiated in arms-length adversarial negotiations between opposing counsel who deal in the market place and subject themselves to market forces on a daily basis. More importantly, such a fees is within the common range of other fees in similar class settlements. (d) There is a substantial difference between the risk assumed by attorneys being paid by the hour and attorneys working on a contingent fee basis. The attorney being paid by the DECLARATION OF NORMAN BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS FEES, COSTS AND EXPENSES -5- Case No. 8:10-cv-01392-DOC-RNB Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 6 of 94 Page ID #:1283 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 hour can go to the bank with his fee. The attorney working on a contingent basis can only log hours while working without pay towards a result that will hopefully entitle him to a market place contingent fee taking into account the risk and other factors of the undertaking. Otherwise, the contingent fee attorney receives nothing. Class Counsel subjected themselves to this contingent fee market risk in this all or nothing contingent fee case wherein the necessity and financial burden of private enforcement makes the requested award appropriate. The contingent fee practices of Class Counsel do not accommodate the investment of unnecessary time in a case. This case was litigated on a contingent basis with all of the concomitant risk factors inherent in such an uncertain undertaking. On account of the concerted and dedicated effort this case demanded in order to properly handle and prosecute, Class Counsel were precluded from taking other cases, and in fact, had to turn away meritorious fee generating cases. (e) At the time this case was brought, the result was far from certain. Home Depot’s practice at issue here had been in place for years. Home Depot’s numerous defenses to the case created difficulties with proof and complex legal issues for Class Counsel to overcome. For example, Home Depot contended that many Class Members were overpaid their vacation wages at termination. Home Depot also argued that the calculation method for the vacation wages attributed to the partial month was lawful and complied with the Labor Code. Finally, Home Depot argued that any underpayment of vacation wages was inadvertent and therefore did not satisfy the “willful” requirement to recover waiting time penalties under Labor Code §203. There was also a significant risk that, if the Lawsuit was not settled, Plaintiffs would be unable to obtain class certification and thereby not recover on behalf of any Home Depot employees other than themselves. In Coughlin v. Sears Holdings Corp., 2010 U.S. Dist. LEXIS 120529 (C.D. Cal. 2010), Judge Carney denied class certification in an analogous claim for vacation wages, holding that individual issues predominated because there were “individual determinations that the finder of fact must make to DECLARATION OF NORMAN BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS FEES, COSTS AND EXPENSES -6- Case No. 8:10-cv-01392-DOC-RNB Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 7 of 94 Page ID #:1284 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 decide whether each potential class member received payment for all vested and unused vacation and personal time.” Id., at *25. Similarly, here Home Depot would have certainly argued in opposing class certification that individual issues predominated because the earned vacation would have to be individually determined and any miscalculation would have to be separately calculated for each Class Member based on their individual facts. All of these were very substantial risks any of which could have resulted in the Class receiving nothing if the claims were litigated. (f) The Settlement was possible only because Class Counsel was able to convince Home Depot that Class Counsel could potentially prevail on the legal issues regarding the unpaid vacation wages, achieve class certification for all the employees, and overcome difficulties in proof as to monetary relief. (g) In successfully navigating these hurdles so as to convince Defendant to settle, Class Counsel displayed skills consistent with those that might be expected of attorneys of comparable experience. Here, Class Counsel was pursuing a contingent and risky claim where previous actions had failed to obtain class certification and/or failed to obtain monetary recovery for the class. Class Counsel’s skill in presenting this case to overcome the difficulties that prevented recovery in many other overtime wage cases is also compelling given the exceptional and well recognized quality of Defendant’s Counsel from the prestigious, capable, and well-staffed law firm of Akin Gump. To represent the Class on a contingent fee basis, Class Counsel had to forego compensable hourly work on other cases to devote the necessary time and resources to this contingent case. In so doing, Class Counsel gave up the hourly work that a firm can bank on for the risky contingent fee work in this case which could have paid Class Counsel nothing. (h) Class Counsel were required to advance all costs in this litigation. Especially in this type of litigation where the corporate defendants and their attorneys are well funded, this can prove to be very expensive and risky. Accordingly, because the risk of advancing costs in this type of litigation can be significant, it is therefore cost prohibitive to many attorneys. DECLARATION OF NORMAN BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS FEES, COSTS AND EXPENSES -7- Case No. 8:10-cv-01392-DOC-RNB Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 8 of 94 Page ID #:1285 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 To date, Class Counsel incurred a total of $45,342.86 in costs which could not have been recovered if this case had been lost. 7. On March 21, 2011, in Sayaman v. Baxter Healthcare, (U.S.D.C. Central District of California), the Honorable Valerie Fairbanks awarded a 25% fee request in an overtime class action with a settlement fund of $2,600,000. On March 2, 2011, in Wietzke v. Costar, (U.S.D.C. Southern District of California), the Honorable Michael Anello awarded a 25% fee request in an overtime class action with a settlement fund of $800,000. On March 9, 2009, in Barcia v. Contain-a-Way, Inc., (U.S.D.C. Southern District of California), the Honorable Irma E. Gonzalez, Chief Judge, awarded a 25% fee request in an overtime class action with a settlement fund of $2.5 million. Barcia v. Contain-A-Way, Inc., 2009 U.S. Dist. LEXIS 17118, *15-18 (S.D. Cal. 2009). On February 2, 2009, in Louie v. Kaiser Foundation Health Plan, (U.S.D.C. Southern District of California), the Honorable Irma E. Gonzalez, Chief Judge, awarded a 25% fee request in an overtime class action. Louie v. Kaiser Found. Health Plan, Inc., 2008 U.S. Dist. LEXIS 78314 (S.D. Cal. 2009) (Holding that “[i]n wage and hour cases “[t]wenty-five percent is considered a benchmark for attorneys' fees in common fund cases.”) On March 24, 2008, in Karim v. Banc of America Investment Services (U.S.D.C. Central District of California, Case No. 06-cv-00167-AHS-MLG), the Honorable Alicemarie Stotler awarded a 25% fee request in an overtime class action. On July 9, 2008, in Langille v. EMC Corp. (U.S.D.C. Southern District of California, Case No. 07cv0651 H), the Honorable Marilyn Huff awarded a 25% fee request in an overtime class action. 8. The lodestar for Class Counsel further supports the reasonableness of the requested award. Attached hereto as Exhibit #3 is the Statement of Account for this litigation which evidences the contemporaneous billing of Blumenthal, Nordrehaug & Bhowmik for this litigation. A review of this billing evidences that to date, Blumenthal, Nordrehaug & Bhowmik has expended more than 531 hours and $254,361.255 in attorney lodestar time litigating this matter, which amount does not include the time required for final DECLARATION OF NORMAN BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS FEES, COSTS AND EXPENSES -8- Case No. 8:10-cv-01392-DOC-RNB Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 9 of 94 Page ID #:1286 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 approval and to complete the settlement. The Declarations of the other Class Counsel document the billing for this matter for their firms. See Declaration of Cooper at ¶¶ 22-23; Declaration of Carter at ¶13; and Declaration of Campbell at ¶¶ 17-18. A review of the all of the billing for Class Counsel evidences that to date, Class Counsel has expended more than 800 hours and have $464,796 in attorney lodestar time litigating this matter, which amount does not include the time required for final approval and to complete the settlement. When compared to the total lodestar, requested fee award is significantly less than the requested award, and is therefore undoubtedly reasonable. 9. As part of the Agreement, the parties agreed that Class Counsel shall be entitled to an award of their costs and expenses incurred in prosecuting the action as part of the award of 28% of the settlement fund. (Settlement Agreement at IV(D)(8).) Blumenthal, Nordrehaug & Bhowmik requests reimbursement for expenses and costs incurred, which to date are in the amount of $43,022.81. These expenses primarily involve the costs incurred for court filing fees, mediation fees, deposition charges and transcripts, expert witness fees, document copying fees, legal research charges, travel expenses and court delivery charges, all of which are costs normally billed to and paid by the client. These costs were reasonably incurred in the prosecution of this matter. Altogether, the litigation costs and expenses for all Class Counsel, as documented by the Declarations submitted by Class Counsel, total $45,342.86. 10. The named Plaintiffs should be awarded the agreed upon service awards as follows: named plaintiffs Martin Henshaw, Vern Souza, and Paul Heinzman will each receive $10,000 and plaintiffs Jennifer Walton and Deborah Moulton will each receive $5,000. The differences in the amount of the service awards were negotiated in recognition of the Plaintiffs’ relative involvement in the case. Plaintiffs Martin Henshaw, Vern Souza, and Paul Heinzman initiated the action and were involved from the start, and plaintiffs Jennifer Walton and Deborah Moulton became involved in the DECLARATION OF NORMAN BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS FEES, COSTS AND EXPENSES -9- Case No. 8:10-cv-01392-DOC-RNB Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 10 of 94 Page ID #:1287 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 litigation at a later stage. Defendant has agreed to the payment of these service awards to the named Plaintiffs. (Settlement Agreement at § IV(D)(4).) The Settlement Agreement acknowledges that the service awards are not only to compensate Plaintiffs for their service on behalf of the class and the financial and reputational risks incurred for their benefit, but also for the named Plaintiffs’ execution of a general release in favor of Home Depot. As the Representatives of the Class, the Plaintiffs performed their duties to the Class admirably and without exception. The Plaintiffs provided valuable information and document from their employment at Home Depot which were instrumental in Class Counsel’s understanding of the case. Plaintiffs also responded to numerous discovery requests and correspondence from Class Counsel. The Plaintiffs also assumed the personal financial risk, among other things, that they might possibly be liable for costs incurred in connection with this case, and the reputational risk that could impact future employment. Finally, Plaintiffs’ execution of a broad general release waives their potential claims against Defendant beyond the claims in this case. Without the Plaintiffs’ support, cooperation and information, no other fellow employees would be receiving any benefit. 10. As a result, Class Counsel respectfully request approval of the application for award of attorneys’ fees equal to $402,657.14, representing 25.2% of the value of the settlement fund, litigation expenses incurred in the total amount of $45,342.86, and the service awards, based upon the Settlement Agreement. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 10th day of May, 2012, at San Diego, California. /s/ Norman B. Blumenthal Norman B. Blumenthal DECLARATION OF NORMAN BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS FEES, COSTS AND EXPENSES -10- Case No. 8:10-cv-01392-DOC-RNB Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 11 of 94 Page ID #:1288 EXHIBIT #1 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 12 of 94 Page ID #:1289 Blumenthal, Nordrehaug & Bhowmik 2255 Calle Clara, La Jolla, California 92037 Tel: (858) 551-1223 Fax: (885) 551-1232 FIRM RESUME Areas of Practice: Consumer and Securities Class Action, Wage and Hour Class Action, Civil Litigation, Transactional Law, Business Litigation, Products Liability and Construction Defects. ATTORNEY BIOGRAPHIES Norman B. Blumenthal Partner Practice Areas: Consumer and Securities Class Action, Civil Litigation, Wage and Hour Class Actions, Transactional Law Admitted: 1973, Illinois; 1976, California Biography: Law Clerk to Justice Thomas J. Moran, Illinois Supreme Court, 1973-1975. Instructor, Oil and Gas Law: California Western School of Law, 1981; University of San Diego School of Law, 1983. President and Chairman of the Board, San Diego Petroleum Club Inc., 1985-1986. Chief Operating Officer and General Counsel, Brumark Corporation, 1980-1987. Member: San Diego County, Illinois State and American Bar Associations; State Bar of California. Educated: University of Wisconsin (B.A., 1970); Loyola University of Chicago (J.D., 1973) Born: Washington, D.C., 1948 Kyle R. Nordrehaug Partner Practice Areas: Consumer and Securities Class Actions, Wage and Hour Class Actions, Civil Litigation Admitted: 1999, California Member: State Bar of California, Ninth Circuit Court of Appeals, Third Circuit Court of Appeals Educated: University of California at Berkeley (B.A., 1994); University of San Diego School of Law (J.D. 1999) Born: San Diego, California, 1972 Aparajit Bhowmik Partner Practice Areas: Civil Litigation; Consumer Class Actions, Wage and Hour Class Actions Admitted: 2006, California Educated: University of California at San Diego (B.A., 2002); University of San Diego School of Law (J.D. 2006) Scott Macrae Contract Attorney Practice Areas: Consumer and Securities Class Actions; Wage and Hour Class Actions Admitted: 1982, California Educated: Bowdoin College (B.A., 1978); University of California at Berkeley, Boalt Hall School of Law (J.D., 1982) Born: Summit, New Jersey, 1956 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 13 of 94 Page ID #:1290 Piya Mukherjee Associate Attorney Practice Areas: Civil Litigation; Wage and Hour Class Actions Admitted: 2010, California Educated: University of California, San Diego (B.S. 2006); University of Southern California, Gould School of Law (J.D. 2010) REPORTED CASES In re Tobacco Cases II, 41 Cal. 4th 1257 (2007); Washington Mutual Bank v. Superior Court, 24 Cal. 4th 906 (2001); Rocker v. KPMG LLP, 148 P.3d 703; 122 Nev. 1185 (2006); PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP, 150 Cal. App. 4th 384 (2007); Hall v. County of Los Angeles, 148 Cal. App. 4th 318 (2007); Coshow v. City of Escondido, 132 Cal. App. 4th 687 (2005); Daniels v. Philip Morris, 18 F.Supp 2d 1110 (S.D. Cal.1998); Gibson v. World Savings & Loan Asso., 103 Cal. App. 4th 1291 (2003); Jordan v. Department of Motor Vehicles, 75 Cal. App. 4th 445 (1999); Jordan v. Department of Motor Vehicles, 100 Cal.App. 4th 431 (2002); Norwest Mortgage, Inc. v. Superior Court, 72 Cal.App.4th 214 (1999); Hildago v. Diversified Transp. Sya, 1998 U.S. App. LEXIS 3207 (9th Cir. 1998); Kensington Capital Mgal. v. Oakley, Inc., 1999 U.S. Dist LEXIS 385; Fed.Sec.L.Rep. (CCH) P90, 411 (1999 C.D. Cal.); Lister v. Oakley, Inc., 1999 U.S. Dist. LEXIS 384; Fed. Sec. L. Rep. (CCH) P90,409 (C.D Cal. 1999); Olszewski v. Scripps Health, 30 Cal. 4th 798 (2003); Steroid Hormone Product Cases, 181 Cal. App. 4th 145 (2010); Owen v. Macy's, Inc., 175 Cal. App. 4th 462 (2009); Taiheiyo Cement Corp. v. Superior Court, 117 Cal. App. 4th 380 (2004); Taiheiyo Cement Corp. v. Superior Court, 105 Cal.App. 4th 398 (2003); McMeans v. Scripps Health, Inc., 100 Cal. App. 4th 507 (2002); Ramos v. Countrywide Home Loans, 82 Cal.App. 4th 615 (2000); Tevssier v. City of San Diego, 81 Cal.App. 4th 685 (2000); Washington Mutual Bank v. Superior Court, 70 Cal. App. 4th 299 (1999); Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001 (9th Cir. 2008); Silvas v. E*Trade Mortg. Corp., 421 F. Supp. 2d 1315 (S.D. Cal. 2006); McPhail v. First Command Fin. Planning, Inc., 2009 U.S. Dist. LEXIS 26544 (S.D. Cal. 2009); McPhail v. First Command Fin. Planning, Inc., 251 F.R.D. 514 (S.D. Cal. 2008); McPhail v. First Command Fin. Planning, Inc., 247 F.R.D. 598 (S.D. Cal. 2007); Barcia v. Contain-A-Way, Inc., 2009 U.S. Dist. LEXIS 17118 (S.D. Cal. 2009); Barcia v. Contain-A-Way, Inc., 2008 U.S. Dist. LEXIS 27365 (S.D. Cal. 2008); Wise v. Cubic Def. Applications, Inc., 2009 U.S. Dist. LEXIS 11225 (S.D. Cal. 2009); Gabisan v. Pelican Prods., 2009 U.S. Dist. LEXIS 1391 (S.D. Cal. 2009); La Jolla Friends of the Seals v. Nat'l Oceanic & Atmospheric Admin. Nat'l Marine Fisheries Serv., 630 F. Supp. 2d 1222 (S.D. Cal. 2009); La Jolla Friends of the Seals v. Nat'l Oceanic & Atmospheric Admin. Nat'l Marine Fisheries Serv., 2008 U.S. Dist. LEXIS 102380 (S.D. Cal. 2008); Louie v. Kaiser Found. Health Plan, Inc., 2008 U.S. Dist. LEXIS 78314 (S.D. Cal. 2008); Weltman v. Ortho Mattress, Inc., 2010 U.S. Dist. LEXIS 20521 (S.D. Cal. 2010); Weltman v. Ortho Mattress, Inc., 2008 U.S. Dist. LEXIS 60344 (S.D. Cal. 2008); Curry v. CTB McGraw-Hill, LLC, 2006 U.S. Dist. LEXIS 5920; 97 A.F.T.R.2d (RIA) 1888; 37 Employee Benefits Cas. (BNA) 2390 (N.D. Cal. 2006); Reynov v. ADP Claims Servs. Group, 2006 U.S. Dist. LEXIS 94332 (N.D. Cal. 2006); Kennedy v. Natural Balance Pet Foods, Inc., 2010 U.S. App. LEXIS 248 (9th Cir. 2010); Kennedy v. Natural Balance Pet Foods, Inc., 2008 U.S. Dist. LEXIS 38889 (S.D. Cal. 2008); Kennedy v. Natural Balance Pet Foods, Inc., 2007 U.S. Dist. LEXIS 57766 (S.D. Cal. 2007); Sussex v. Turnberry/MGM Grand Towers, LLC, 2009 U.S. Dist. LEXIS 29503 (D. Nev. 2009); Picus v. Wal-Mart Stores, Inc., 256 F.R.D. 651 (D. Nev. 2009); Tull v. Stewart Title of Cal., Inc., 2009 U.S. Dist. LEXIS 14171 (S.D. Cal. 2009); Keshishzadeh v. Gallagher, 2010 U.S. Dist. LEXIS 46805 (S.D. Cal. 2010); Keshishzadeh v. Arthur J. Gallagher Serv. Co., 2010 U.S. Dist. Lexis 116380 (S.D. Cal. 2010); In re Pet Food Prods. Liab. Litig., MDL Docket No. 1850 (All Cases), 2008 U.S. Dist. Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 14 of 94 Page ID #:1291 LEXIS 94603 (D.N.J. 2008); In re Pet Food Prods. Liab. Litig., 629 F.3d 333 (3rd. Cir. 2010); Puentes v. Wells Fargo Home Mortgage, Inc., 160 Cal. App. 4th 638 (2008); Rezec v. Sony Pictures Entertainment, Inc., 116 Cal. App. 4th 135 (2004); Badillo v. Am. Tobacco Co., 202 F.R.D. 261 (D. Nev. 2001); La Jolla Friends of the Seals v. Nat’l Oceanic & Atmospheric Admin., 2010 U.S. App. Lexis 23025 (9th Cir. 2010); Dirienzo v. Dunbar Armored, Inc., 2011 U.S. Dist. Lexis 36650 (S.D. Cal. 2011); Rix v. Lockheed Martin Corp., 2011 U.S. Dist Lexis 25422 (S.D. Cal. 2011); Weitzke v. Costar Realty Info., Inc., 2011 U.S. Dist Lexis 20605 (S.D. Cal. 2011); Goodman v. Platinum Condo. Dev., LLC, 2011 U.S. Dist. LEXIS 36044 (D. Nev. 2011); Sussex v. Turnberry/MGM Grand Towers, LLC, 2011 U.S. Dist. LEXIS 14502 (D. Nev 2011); Smith v. Kaiser Foundation Hospitals, Inc., 2010 U.S. Dist. Lexis 117869 (S.D. Cal. 2010). LEAD COUNSEL - CLASS ACTION Aburto v. Verizon - In Litigation U.S. District Court, Southern District California, Case No. 11-cv-0088 Nature of Case: Employee Misclassification; Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal & Nordrehaug Adkins v. Washington Mutual Bank - Class Certification Granted, Settled San Diego County Superior Court, Case No. GIC819546 Nature of Case: Unfair Competition - Bank Interest Overcharges Plaintiff’s Counsel: Blumenthal & Nordrehaug Agah v. CompUSA - Settled U.S. District Court, Central District of California, Case No. SA CV05-1087 DOC (Anx) Nature of Case: Unfair Competition - Unfair Rebate Program Plaintiff’s Counsel: Blumenthal & Nordrehaug Akers v. The San Diego Union Tribune - Settled San Diego County Superior Court, Case No 37-2010-00088571 Nature of Case: Unfair Competition - Wage and Hour Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Allec v. Cross Country Bank - Settled Orange County Superior Court Nature of Case: Unfair Business Practices-Deceptive Advertising Plaintiff’s Counsel: Blumenthal & Nordrehaug Aquino v. Macy’s West Stores - In Litigation Orange County Superior Court, Case No. 30-2010-00395420 Nature of Case: Unfair Competition - Wage and Hour Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Barcia v. Contain-A-Way - Settled U.S. District Court, Southern District California, Case No. 07 cv 0938 Nature of Case: ERISA and Labor Code Violations Plaintiff’s Counsel: Blumenthal & Nordrehaug; United Employees Law Group Behar v. Union Bank - Settled Orange County Superior Court, Case No. 30-2009-00317275 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 15 of 94 Page ID #:1292 Nature of Case: Misclassification, Overtime and Labor Code Violations for Priority Banking Officers Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Bermant v. Bank of America, Investment Services, Inc. - Settled Los Angeles Superior Court, Civil Action No. BC342505 Nature of Case: Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal & Nordrehaug; Arias, Ozzello & Gignac; United Employees Law Group Bethley v. Raytheon Company - In Litigation United States District Court, Central District of California, Case No. SACV10-01741 Nature of Case: Employee Misclassification; Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Bolger v. Dr. Martens - Settled San Diego Superior Court Nature of Case: Unfair Business Practices-Deceptive Advertising Plaintiff’s Counsel: Blumenthal & Nordrehaug Bova v. Washington Mutual Bank / JP Morgan Chase - Settled U.S. District Court, Southern District California, Case No. 07-cv-2410 Nature of Case: Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Briseno v. American Savings Bank - Class Certification Granted, Settled Orange County Superior Court, Case No. 774773 Nature of Case: Unfair Competition - Force Ordered Insurance Overcharges Plaintiff’s Counsel: Blumenthal & Nordrehaug; Chavez & Gertler Brueske v. Welk Resorts - In Litigation San Diego Superior Court, Case No 37-2010-00086460 Nature of Case: Unfair Competition - Wage Hour Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Buonomo v. ValueVision - Settled Minnesota District Court Nature of Case: False Advertising, Breach of Warranty Plaintiff’s Counsel: Blumenthal & Nordrehaug; Mansfield, Tanick & Cohen, P.A. Cabral v. Creative Communication Tech. - Class Certification Granted, Settled Los Angeles Superior Court, Case No. BC402239 Nature of Case: Labor Code Violations and Expense Reimbursement under Labor Code 2802 Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Citizens for Fair Treatment v. Quest Communications - Settled San Diego Superior Court Nature of Case: Failure to Pay for Vacation Time Plaintiff’s Counsel: Blumenthal & Nordrehaug Cohen v. Bosch Tool - Settled Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 16 of 94 Page ID #:1293 San Diego Superior Court, Case No. GIC 853562 Nature of Case: Unfair Business Practices - Deceptive Advertising - Made in the USA violations Plaintiff’s Counsel: Blumenthal & Nordrehaug Comstock v. Washington Mutual Bank - Class Certification Granted, Settled San Diego County Superior Court, Case No. GIC820803 Nature of Case: Unfair Competition - Force Order Insurance Plaintiff's Counsel: Blumenthal & Nordrehaug Conley v. Norwest - Settled San Diego County Superior Court, Case No. N73741 Nature of Case: Unfair Business Practices-Force Ordered Insurance Overcharges Plaintiff's Counsel: Blumenthal & Nordrehaug Connell v. Sun Microsystems - Settled Alameda Superior Court, Case No. RG06252310 Nature of Case: Labor Code Violations Plaintiff’s Counsel: Blumenthal & Nordrehaug; United Employees Law Group; Chavez & Gertler Curry v. California Testing Bureau/McGraw Hill - Dismissal Affirmed on Appeal United States Court of Appeals for the Ninth Circuit U.S. District Court, Northern District of California, Case No. C-05-4003 JW Nature of Case: ERISA Claim Plaintiff’s Counsel: Blumenthal & Nordrehaug; Chavez & Gertler Danford v. Movo Media - Settled San Diego Superior Court Nature of Case: Unfair Business Practices-Unlawful Violation of Unruh Civil Rights Act Plaintiff’s Counsel: Blumenthal & Nordrehaug Daniels, et al. v. Philip Morris,(In Re Tobacco Cases II) – Class Certification Granted, Review before the California Supreme Court Affirmed Preemption San Diego Superior Court, Case No. JCCP 4042 Nature of Case: Unfair Business Practices-Unlawful, Deceptive and Unfair Marketing of Cigarettes to Children Plaintiff’s Counsel: Blumenthal & Nordrehaug; Thorsnes, Bartolotta & Mcguire; Chavez & Gertler Day v. WDC Exploration - In Litigation Orange County Superior Court, Case No. 30-2010-00433770 Nature of Case: Wage and Hour Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Delmare v. Sungard Higher Education - Settled U.S. District Court, Southern District of California, Case No. 07-cv-1801 Nature of Case: Misclassification, Overtime, Labor Code Violations, FLSA Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Dewane v. Prudential - Settled U.S. District Court, Central District of California, Case No. SA CV 05-1031 Nature of Case: Labor Code Violations Plaintiff’s Counsel: Blumenthal & Nordrehaug; Wynne Law Firm; Thierman Law Firm P.C. Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 17 of 94 Page ID #:1294 Diesel v. Wells Fargo Bank - In Litigation Orange County Superior Court, Case No. 30-2011-00441368 Nature of Case: Misclassification, Overtime, Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Dirienzo v. Dunbar Armored - Settled U.S. District Court, Southern District of California, Case No. 09-cv-2745 Nature of Case: Expense Reimbursement under Labor Code 2802, Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Downtown Inns v. Pac Bell - Settled California Public Utilities Commission Nature of Case: Illegal Charge Plaintiff's Counsel: Blumenthal & Nordrehaug; Sullivan Hill Drumheller v. Radioshack Corporation - In Litigation United States District Court, Central District of California, Case No. SACV11-355 Nature of Case: Wage and Hour Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Enger v. Kaiser Foundation Health Plan - Settled U.S. District Court, Southern District of California, Case No. 09-cv-1670 Nature of Case: Employee Misclassification, Overtime, Labor Code Violations, FLSA Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Fallah v. Cingular Wireless - Settled Orange County Superior Court / U.S. District Court, Central District of California Nature of Case: Unfair Competition - Unfair Rebate Program Plaintiff’s Counsel: Blumenthal & Nordrehaug Fierro v. Chase Manhattan - Class Certification Granted, Settled San Diego Superior Court, Case No. GIN033490 Nature of Case: Unfair Competition - Bank Interest Overcharges Plaintiff's Counsel: Blumenthal & Nordrehaug Finch v. Lamps Plus, (Lamps Plus Credit Transaction Cases) - Settled San Diego Superior Court, Case No. JCCP 4532 Nature of Case: Unfair Competition, Violation of Civil Code 1747.08 Plaintiff's Counsel: Blumenthal & Nordrehaug Fletcher v. Verizon - Settled U.S. District Court, Southern District of California, Case No. 09-cv-1736 Nature of Case: Employee Overtime, Labor Code Violations, FLSA Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Francisco v. Diebold- In Litigation U.S. District Court, Southern District of California, Case No. 09-cv-1889 Nature of Case: Employee Overtime, Labor Code Violations, FLSA Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Friend v. Wellpoint - Settled Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 18 of 94 Page ID #:1295 Los Angeles Superior Court, Case No. BC345147 Nature of Case: Labor Code Violations Plaintiff’s Counsel: Blumenthal & Nordrehaug; United Employees Law Group Frudakis v. Merck Sharp & Dohme - In Litigation U.S. District Court, Central District California, Case No. SACV 11-00146 Nature of Case: Pharmaceutical Sales Representative Misclassification, Overtime Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Gabisan v. Pelican Products - Settled U.S. District Court, Southern District California, Case No. 08 cv 1361 Nature of Case: Labor Code Violations Plaintiff’s Counsel: Blumenthal & Nordrehaug; United Employees Law Group Gibson v. World Savings - Judgment for Class after Appeal - Settled Orange County Superior Court, Case No. 762321 Nature of Case: Unfair Business Practices-Force Ordered Insurance Overcharges Plaintiff's Counsel: Blumenthal & Nordrehaug Gill v. Parabody, Inc. - Settled San Diego Superior Court Nature of Case: Product Defect Plaintiff's Counsel: Blumenthal & Nordrehaug Gomez v. Enterprise Rent-A-Car - In Litigation U.S. District Court, Southern District of California, Case No. 3:10-cv-02373 Nature of Case: Wage and Hour Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Gordon v. Wells Fargo Bank - In Litigation U.S. District Court, Southern District of California, Case No. 3:11-cv-00090 Nature of Case: Wage and Hour Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Goodman v. Platinum - In Litigation U.S. District Court, District of Nevada, Case No. 09-cv-00957 Nature of Case: Violation of Nevada and Federal law in the sale of Condo/Hotel units, ILSA Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; Gerard & Associates Grabowski v. CH Robinson - In Litigation U.S. District Court, Southern District of California, Case No. 10-cv-1658 Nature of Case: Employee Misclassification; Overtime, Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Greer v. Fleet Mortgage - Settled San Diego Superior Court Nature of Case: Unfair Business Practices-Bank Overcharges Plaintiff's Counsel: Blumenthal & Nordrehaug Gruender v. First American Title - Settled Orange County Superior Court, Case No. 06 CC 00197 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 19 of 94 Page ID #:1296 Nature of Case: Title Officer Misclassification, Overtime, Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group; Wagner & Jones; Cornwell & Sample Gujjar v. Consultancy Services Limited - In Litigation Orange County Superior Court, Case No. 30-2010-00365905 Nature of Case: IT Analyst Misclassification, Overtime, Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Hahn v. Circuit City – Settled San Diego Superior Court; U.S. District Court, Southern District of California Nature of Case: Unfair Business Practices, Failure to Pay Vacation Time Plaintiff’s Counsel: Blumenthal & Nordrehaug Handler v. Oppenheimer - Los Angeles Superior Court, Civil Action No. BC343542 Nature of Case: Labor Code Violations Plaintiff’s Counsel: Blumenthal & Nordrehaug; Perona, Langer, Beck, Lallande and Serbin Henshaw v. Home Depot U.S.A. - In Litigation United States District Court, Central District of California, Case No. SACV10-01392 Nature of Case: Failure to Pay Earned Vacation; Violation of Labor Code 227.3 Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Olayhon v. Hertz - In Litigation United States District Court, Northern District of California, Case No. 11-1662 Nature of Case: Wage and Hour Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Hibler v. Coca Cola Bottling - In Litigation U.S. District Court, Southern District of California, Case No. 11cv0298 Nature of Case: Employee Misclassification,Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Higgins v. Maryland Casualty - Settled San Diego County Superior Court Nature of Case: Unfair Business Practices-Deceptive Insurance Overcharges Plaintiff's Counsel: Blumenthal & Nordrehaug Hoffman v. National Warranty Insurance - Class Certification Granted, Settled District Court for the State of Nevada Nature of Case: Auto Warranty Fraud Plaintiff’s Counsel: Blumenthal & Nordrehaug; Greco, Traficante & Edwards; Gerard & Associates Jacobs v. Nu Horizons - In Litigation Santa Clara County Superior Court, Case No. 111cv194797 Nature of Case: Wage and Hour Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Jefferson v. Bottling Group LLC (Pepsi) - Class Certification Granted, In Litigation Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 20 of 94 Page ID #:1297 Orange County Superior Court, Case No. 30-2009-00180102 Nature of Case: Supervisor Misclassification, Overtime and Labor Code Violations Plaintiffs’ Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Jones v. E*Trade Mortgage - Settled U.S. District Court, Southern District California Case No. 02-CV-1123 L (JAH) Nature of Case: TILA Violations Plaintiff’s Counsel: Blumenthal & Nordrehaug; Robert C. Fellmeth, Esq. Kennedy v. Natural Balance - Dismissal Reversed on Appeal, In Litigation U.S. District Court, Southern District California, Remanded to San Diego Superior Court, Case No. 37-2007-00066201 Nature of Case: Unfair Competition, Deceptive Advertising, Made in the USA violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Keshishzadeh v. Arthur J. Gallagher Service Co. - Class Certification Granted, Settled U.S. District Court, Southern District of California, Case No. 09-cv-0168 Nature of Case: Claims Representative Misclassification, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group King v. Nordstrom - Settled San Diego Superior Court Nature of Case: Unfair Business Practices-Failure to Pay for Vacation Time Plaintiff's Counsel: Blumenthal & Nordrehaug Kinney v. AIG Domestic Claims / Chartis - In Litigation U.S. District Court, Central District of California, Case No. 8:10-cv-00399 Nature of Case: Claims Representative Misclassification, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Kove v. North American Title Co. - In Litigation Los Angeles Superior Court, Case No. BC426111 Nature of Case: Unfair Competition, Failure to Pay Commissions Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Kove v. Old Republic Title - In Litigation Alameda County Superior Court, Case No. RG09477437 Nature of Case: Unfair Competition, Failure to Pay Commissions Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Langille v. EMC - Settled U.S. District Court, Southern District of California, Case No. 09-cv-0168 Nature of Case: Software Engineer Misclassification, FLSA, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Levine v. Groeniger - Settled Alameda County Superior Court, Case No. RG09476193 Nature of Case: Employee Misclassification, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 21 of 94 Page ID #:1298 Linder v. OCWEN (In re Ocwen Federal Bank FSB Servicing Litig.) - Settled U.S. District Court, Central District California, Case No. 07cv501 U.S. District Court, Northern Dist. Illinois, Case No. MDL 1604 Nature of Case: Lender Placed Insurance Overcharges Plaintiff’s Counsel: Blumenthal & Nordrehaug; Nicholas & Butler Lopez v. K-Mart - “In Litigation” Ventura County Superior Court, Case No. BC351983 Nature of Case: Overtime - Unfair Business Practice Plaintiff’s Counsel: Blumenthal and Nordrehaug & Arias, Ozzello, & Gignac, LLP & United Employees Law Group Louie / Stringer v. Kaiser - Settled U.S. District Court, Southern District California, Case No. 08-cv-0795 Nature of Case: Employee Misclassification, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal & Nordrehaug, United Employees Law Group Maitland v. Marriott - In Litigation U.S. District Court, Central District California, Case No. SACV 10-00374 Nature of Case: Chef Misclassification, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Mandell v. Republic Bank - Settled Los Angeles County Superior Court Nature of Case: Breach of Fiduciary Duties to IRA Account Holders Plaintiff's Counsel: Blumenthal & Nordrehaug Mann v. NEC Electronics America - Settled Santa Clara County Superior Court, Case No. 109CV132089 Nature of Case: Meal and Rest Break Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group, Qualls & Workman Manzanarez v. Home Savings of America - Settled San Francisco Superior Court Nature of Case: Unfair Business Practices-Overcharge for Inspection Fees Plaintiff’s Counsel: Blumenthal & Nordrehaug Marchese v. Ty, Inc. - Settled San Diego Superior Court Nature of Case: Unfair Business Practices-Deceptive Advertising Plaintiff's Counsel: Blumenthal & Nordrehaug Martinez v. Yahoo, Inc. - Settled Nature of Case: Deceptive Advertising Plaintiff’s Counsel: Blumenthal & Nordrehaug Mathies v. Union Bank - In Litigation San Francisco County Superior Court, Case No. CGC-10-498077 Nature of Case: Employee Misclassification, Overtime and Labor Code Violations Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 22 of 94 Page ID #:1299 Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Matloubian v. Home Savings of America - Settled San Diego Superior Court Nature of Case: Unfair Business Practices-Force Ordered Insurance Overcharges Plaintiff’s Counsel: Blumenthal & Nordrehaug; Chavez & Gertler McMeans v. ScrippsHealth, - Settled San Diego Superior Court Nature of Case: Unfair Competition, Lien Overcharges Plaintiff’s Counsel: Blumenthal & Nordrehaug McPhail v. First Command - Settled United States District Court for the Southern District of California Case No.05CV0179 IEG (JMA) Nature of Case: Securities Fraud, 10(b)(5) violations Plaintiff’s Counsel: Blumenthal & Nordrehaug appointed Lead Counsel, Greco & Traficante & Whatley Drake LLC & Gray & White,& Brewer & Carlson, LLP & Franklin & Hance, PSC Meco v. International Medical Research (and related cases) - Judgment for Class After Trial Los Angeles Superior Court Nature of Case: Unfair Competition, Product Adulteration, Illegal Sale of Drugs Plaintiff’s Counsel: Blumenthal & Nordrehaug Meierdiercks v. 8x8, Inc. - Settled Santa Clara County Superior Court, Case No. 110CV162413 Nature of Case: Sales Employee Misclassification, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Morse v. Marie Callender Pie Shop - In Litigation U.S. District Court, Southern District California, Case No. 09-cv-1305 Nature of Case: Employee Misclassification, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Muntz v. Lowe’s HIW - Settled San Diego County Superior Court, Case No. GIC880932 Nature of Case: Unfair Competition, Violation of Civil Code 1747.08 Plaintiff's Counsel: Blumenthal & Nordrehaug Najarian v. Macy’s West Stores - In Litigation Orange County Superior Court, Case No. 30-2010-00418401 Nature of Case: Unfair Competition - Wage and Hour Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Nelson v. St. Paul Fire & Marine Insurance - Settled Brazoria County District Court, Texas Nature of Case: Deceptive Business Practices in sale of oil & gas reserve insurance Plaintiff’s Counsel: Blumenthal & Nordrehaug Nguyen v. Wells Fargo Home Mortgage - Settled Orange County Superior Court, Case No. 05 CC 00116 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 23 of 94 Page ID #:1300 Nature of Case: Unfair Business Practices - Force Ordered Insurance Overcharges Plaintiff’s Counsel: Blumenthal & Nordrehaug Ochoa v. Eisai, Inc. - In Litigation U.S. District Court, Northern District California, Case No. 3:11-cv-01349 Nature of Case: Pharmaceutical Sales Representative Misclassification, Overtime Plaintiff's Counsel: Blumenthal, Nordrehaug & Bhowmik Olszewski v. ScrippsHealth - Judgment for Plaintiff, Affirmed by Supreme Court California Supreme Court Decision in Favor of Plaintiff San Diego Superior Court Nature of Case: Unfair Competition, Lien Overcharges Plaintiff’s Counsel: Blumenthal & Nordrehaug Owen v. Robinsons May - Dismissed Los Angeles County Superior Court, Case No. BC355629 Nature of Case: Failure to Pay Earned Vacation, Violation of Labor Code 227.3 Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group; Clark & Markham Patelski v. The Boeing Company – Settled United States District Court, Southern District of New York; transferred to United States District Court, Eastern District of Missouri Nature of Case: Refund Action Plaintiffs’ Counsel: Blumenthal & Nordrehaug, Sigman, Lewis & Feinberg, P.C. Pearlman v. Bank of America - Settled San Diego Superior Court Nature of Case: Unfair Business Practices-Force Ordered Insurance Overcharges Plaintiff’s Counsel: Blumenthal & Nordrehaug; Chavez & Gertler Perry v. AT&T - In Litigation U.S. District Court, Northern District California, Case No. 11-cv 01488 Nature of Case: Employee Misclassification, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal & Nordrehaug, United Employees Law Group Picus v. Wal-Mart Stores - Settled U.S. District Court, District of Nevada Case No. 2:07-CV-00682 Nature of Case: Deceptive Advertising, Made in the USA violations Plaintiff’s Counsel: Blumenthal & Nordrehaug, Gerard & Associates Pittard v. Salus Homecare - Settled U.S. District Court, Southern District California, Case No. 08 cv 1398 Nature of Case: Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal & Nordrehaug, United Employees Law Group Port v. Southern California Permanente Medical Group - Settled San Diego County Superior Court, Case No. 37-2007-00067538 Nature of Case: Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal & Nordrehaug, United Employees Law Group Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 24 of 94 Page ID #:1301 Postema v. Lawyers Title Ins. Corp. - In Litigation Orange County Superior Court, Case No. 30-2010-00418901 Nature of Case: Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; Pettersen & Bark Pratt v. Verizon - In Litigation Orange County Superior Court, Case No. 30-2010-00430447 Nature of Case: Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Proctor v. Ameriquest - Settled Orange County Superior Court, Case No. 06CC00108 Nature of Case: Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal & Nordrehaug, United Employees Law Group, Clark & Markham Ralphs v. Blockbuster, Inc. – Settled San Diego Superior Court Nature of Case: Unlawful Late Fees Plaintiff’s Counsel: Blumenthal & Nordrehaug, Morris & Associates, Pettersen & Bark Ramos v. Countrywide - Settled San Diego Superior Court Nature of Case: Unfair Business Practices-Force Ordered Insurance Overcharges Plaintiffs’ Counsel: Blumenthal & Nordrehaug; Sullivan Hill; Chavez & Gertler Rangel v. Balboa Ambulance - Class Certification Granted, Settled San Diego County Superior Court, Case No. Nature of Case: Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; Pettersen & Bark Ray v. Lawyers Title, Fidelity National, Commonwealth Land Title, Chicago Title - In Litigation Orange County Superior Court, Case No. 30-2010-00359306 Nature of Case: Failure to Pay Severance Wages Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; Pettersen & Bark Redin v. Sterling Trust - Settled Los Angeles Superior Court Nature of Case: Breach of Fiduciary Duties of IRA Administrator Plaintiff’s Counsel: Blumenthal & Nordrehaug Reynolds v. Marlboro/Philip Morris U.S.A. - Reversed on Appeal United States Court of Appeals for the Ninth Circuit, Case No. 08-55114 U.S. District Court, Southern District of California, Case No. 05 CV 1876 JAH Nature of Case: Unfair Competition, Violation of Civil Code §1749.5 Plaintiff’s Counsel: Blumenthal & Nordrehaug Rezec v. Sony – Settled San Diego Superior Court Nature of Case: Fraudulent Advertising Plaintiffs’ Counsel: Blumenthal & Nordrehaug, Prongay & Borderud; The Cifarelli Law Firm Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 25 of 94 Page ID #:1302 Roeh v. JK Hill - In Litigation San Diego Superior Court, Case No. 37-2011-00089046 Nature of Case: Unfair Competition, Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Rocheford v. SC&E Administrative Service - Settled Orange County Superior Court Nature of Case: Auto Warranty Fraud Plaintiffs’ Counsel: Blumenthal & Nordrehaug; Greco, Traficante & Edwards; Gerard, Osuch & Cisneros, LLP Rix v. Lockheed Martin Corporation - In Litigation U.S. District Court, Southern District of California, Case No. 09-cv-2063 Nature of Case: Misclassification, Overtime, Labor Code Violations, FLSA Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Santone v. AT&T – Settled United states District Court, Southern District of Alabama Nature of Case: Unconscionable Business Practices Plaintiff’s Counsel: Blumenthal & Nordrehaug, Morris & Associates Santos v. Sleep Train (Sleep Train Wage and Hour Cases) - Settled Orange County Superior Court, Case No. 30-2008-00214586 San Francisco County Superior Court, Case No. JCCP 4553 Nature of Case: Commission Sales Employee Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Sayaman v. Baxter Healthcare - Settled U.S. District Court, Central District of California, Case No. CV 10-1040 Nature of Case: Lab Technician Misclassification, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Schuler v. Ecolab, Inc. - In Litigation U.S. District Court, Southern District of California, Case No. 3:10-cv-02255 Nature of Case: Overtime and Labor Code Violations, Expense Reimbursement Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Schulz v. Qualxserv, LLC / Worldwide Techservices - In Litigation U.S. District Court, Southern District of California, Case No. 09-cv-0017 Nature of Case: Overtime and Labor Code Violations, Expense Reimbursement Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; Krutcik& Georggin; United Employees Law Group Scott v. Blockbuster, Inc. – Settled Count of Appeals, Ninth District of Texas, Beaumont, Texas Nature of Case: Unlawful Late Fees Plaintiff’s Counsel: Blumenthal & Nordrehaug, Brothers & Thomas, LLP, Vaughan O. Stewart Shrivastara v. Fry’s Electonics - In Litigation Santa Clara County Superior Court, Case No. 111cv192189 Nature of Case: Failure to Pay Earned Vacation; Violation of Labor Code 227.3 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 26 of 94 Page ID #:1303 Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Sirota v. Swing-N-Slide - Settled Wisconsin District Court, County of Rock Wisconsin, Case No. 95CV726J Nature of Case: Fraudulent Stock Buy Back-Derivative Claim Plaintiff’s Counsel: Blumenthal & Nordrehaug; Sullivan Hill; Milberg, Weiss, Bershad, Hynes & Lerach; Nowlan & Mouat Smith v. Kaiser Foundation Hospitals - Settled U.S. District Court, Southern District of California, Case No. 08-cv-02353 Nature of Case: Kaiser Employee Misclassification, Overtime, Labor Code Violations, FLSA Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Sones v. World Savings / Wachovia - Settled U.S. District Court, Norther District of California, Case No. 3:08-cv-04811 Nature of Case: Kaiser Employee Misclassification, Overtime, Labor Code Violations, FLSA Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Spradlin v. Trump - In Litigation U.S. District Court, District of Nevada, Case No. 2:08-cv-01428 Nature of Case: Securities Violations and Fraud in the sale of Condo/Hotel Units, ILSA Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; Gerard & Associates; Burton Wiand, Esq.; Beck & Lee Steele v. Kaiser Foundation Health Plan - Settled U.S. District Court, Northern District of California, Case No. 07-5743 Nature of Case: Kaiser Employee Misclassification, Overtime, Labor Code Violations, FLSA Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Steroid Hormone Product Cases - Decision on Appeal in Favor of Plaintiff Los Angeles Superior Court, JCCP4363 Nature of Case: Unfair Competition - Sale of Illegal Products Plaintiff’s Counsel: Blumenthal & Nordrehaug; Clark & Markham; Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullis, P.A. Stevens v. Robinsons-May - Settled San Diego Superior Court Nature of Case: Unfair Business Practices-Failure to Pay for Vacation Time Plaintiff’s Counsel: Blumenthal & Nordrehaug Strauss v. Bayer Corporation – Settled United States District Court, District of Minnesota Nature of Case: Baycol Products Liaibility Litigation Plaintiffs’ Counsel: Blumenthal & Nordrehaug; Fleishman & Fisher Sussex v. Turnberry / MGM Grand Towers - In Litigation U.S. District Court, District of Nevada, Case No. 08-cv-00773 Nature of Case: Securities Violations, Fraud in the sale of Condo/Hotel Units Plaintiffs’ Counsel: Blumenthal, Nordrehaug & Bhowmik; Gerard & Associates Sustersic v. International Paper Co. - Settled Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 27 of 94 Page ID #:1304 Orange County Superior Court, Case No. 30-2009-00331538 Nature of Case: Failure to Pay Earned Vacation; Violation of Labor Code 227.3 Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; Law Offices of William H. Steiner Tan v. California State Automobile Assn. - Class Certification Granted, Settled U.S. District Court, Central District California, Case No. 07cv1011 Orange County Superior Court, Case No. 30-2008-00231219 Nature of Case: IT Employee Misclassification, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik, United Employees Law Group Tauber v. Alaska Airlines, et al. - Settled Los Angeles Superior Court Nature of Case: Unfair Business Practice - Employment Practices, Violation of Labor Code 450 Plaintiff’s Counsel: Blumenthal & Nordrehaug Trujillo v. LivHome - Settled Orange County Superior Court, Case No. 30-2008-00100372 San Diego County Superior Court, Case No. JCCP4570 Nature of Case: Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal Nordrehaug & Bhowmik; United Employees Law Group Tull v. Stewart Title - Settled U.S. District Court, Southern District California, Case No. 08-CV-1095 Nature of Case: Title Officer and Escrow Officer Misclassification, FLSA, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; Pettersen & Bark Valadez v. Schering-Plough - In Litigation U.S. District Court, Southern District California, Case No. 10-CV-2595 Nature of Case: Pharmaceutical Sales Representative Misclassification, Overtime Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Van Gorp v. Ameriquest Mortgage/Deutsche Bank - Settled U.S. District Court, Central District of California, Case No. SACV05-907 CJC (ANx) Nature of Case: Overtime Plaintiff’s Counsel: Blumenthal and Nordrehaug Wadhwa v. Escrow Plus - Settled Los Angeles Superior Court Nature of Case: Investment Fraud Plaintiff's Counsel: Blumenthal & Nordrehaug Walsh v. Apple, Inc. - Settled U.S. District Court, Northern District California, Case No. 08-04918 Nature of Case: Computer Employee Misclassification, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Weinman v. Midbar Condo Development (Las Vegas One) - In Litigation U.S. District Court, District of Nevada, Case No. 2:08-cv-00684 Nature of Case: Fraud in the sale of Condo/Hotel Units, ILSA Plaintiffs’ Counsel: Blumenthal, Nordrehaug & Bhowmik; Gerard & Associates Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 28 of 94 Page ID #:1305 Weltman v. Ortho Mattress - In Litigation U.S. District Court, Southern District California, Case No. 08-cv-0840 Orange County Superior Court, Case No. 30-2009-00327802 Nature of Case: Sales Employee Misclassification, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Wietzke v. Costar Realty - Settled U.S. District Court, Southern District California, Case No. 09-cv-2743 Nature of Case: Employee Misclassification, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik Williams v. Lockheed Martin Corporation - In Litigation U.S. District Court, Southern District California, Case No. 3:09-cv-01669 Nature of Case: Computer Employee Misclassification, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Wise v. Cubic - Settled U.S. District Court, Southern District California, Case No. 08-cv-2315 Nature of Case: Employee Misclassification, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Yam v. Kaiser Foundation Hospitals - Settled U.S. District Court, Northern District California, Case No. 10-cv-05225-SBA Nature of Case: Employee Misclassification, Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal, Nordrehaug & Bhowmik; United Employees Law Group Zugich v. Wells Fargo Bank - Settled San Francisco Superior Court Nature of Case: Unfair Business Practices-Force Ordered Insurance Overcharges Plaintiff’s Counsel: Blumenthal & Nordrehaug Zurlo v. Mission Linen - Settled U.S. District Court, Central District, Case No. 08cv1326 Nature of Case: Overtime and Labor Code Violations Plaintiff’s Counsel: Blumenthal & Nordrehaug CO-COUNSEL - Class Actions Baxt v. Scor U.S. - Settled Delaware Court of Chancery Nature of Case: Takeover Plaintiffs’ Counsel: Blumenthal & Nordrehaug; Sullivan Hill; Rosenthal, Monhait, Gross & Goddess, P.A. Bronson v. Blech Securities - Settled U.S. District Court, Southern District of New York Nature of Case: Securities Fraud Plaintiffs’ Counsel: Blumenthal & Nordrehaug; Milberg; Weiss, Bershad, Hynes & Lerach; Kaplan, Kilsheimer & Fox; Berstein, Liebhard & Lifshitz; Berstein & Ostraff; Law Office of Dennis J. Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 29 of 94 Page ID #:1306 Johnson; John T. Maher; Sullivan Hill; Weil, Gotshal & Manges; Paul, Hastings, Janofsky & Walker; Andrews & Kurth; Paul, Weiss, Rifkind, Wharton & Garrison; Wolff & Samson; Heller, Horowitz & Feit, P.C.; Shereff, Friedman, Hoffman & Goodman, LLP; Debevoise & Plimpton; Smith, Campbell, Paduano; Thelen, Marrin, Johnson & Bridges; The Offices of Robert Swetnick; Crummy Del Deo; Robinson, Silverman, Pearce, Aronsohn & Berman; Buchanan Ingersoll, P.C.; Morgan, Lewis & Bockius, Schwartz, Kelm, Warren & Ramirez; Porter & Hedges, L.L.P.; MicroProbe Corp.; NeoRX Corp.; Solomon, Zauderer, Ellenhorn, Frischer & Sharp; Caushon v. General Motors Corp. - In re Automobile Antitrust Cases San Diego Superior Court, coordinated in San Francisco Nature of Case: Unfair Competition; Antitrust Plaintiff's Co-Counsel: Blumenthal & Nordrehaug Dibella v. Olympic Financial - Settled U.S. District Court, District of Minnesota Nature of Case: Securities Fraud Plaintiff's Counsel: Blumenthal & Nordrehaug Ferrari v. Read-Rite - Settled U. S. District Court, Northern District of California Nature of Case: Securities Fraud Plaintiff’s Counsel: Blumenthal & Nordrehaug; Milberg, Weiss, Bershad, Hynes & Lerach Hart v. United States Tobacco Co. - Settled Los Angeles Superior Court Coordinated in Smokeless Tobacco Litigation Nature of Case: Unfair Competition; Antitrust Plaintiff’s Co-Counsel: Blumenthal & Nordrehaug; the Cuneo Law Group P.C.; Gordon Ball In re Bank of America Wage and Hour Employment Practices Litigation - In Litigation U.S. District Court, District of Kansas, Case No. MDL 2138 Nature of Case: Employment Claims under FLSA and California Labor Code Plaintiff’s Co-Counsel: Blumenthal, Nordrehaug & Bhowmik; Marlin & Saltzman; Stueve Siegel Hanson; United Employees Law Group Jordan/Ramos v. DMV - Judgment for Plaintiff, Affirmed on appeal Superior Court, Sacramento Nature of Case: Commerce Clause Violation - Tax declared unconstitutional - Plaintiffs’ Counsel: Blumenthal & Nordrehaug; Milberg, Weiss, Bershad, Hynes & Lerach; Weiss & Yourman; Sullivan Hill. Kensington Capital v. Oakley - Settled U. S. District Court, Southern District of California Nature of Case: Securities Fraud Plaintiffs’ Counsel: Blumenthal & Nordrehaug; Milberg, Weiss, Bershad, Hynes & Lerach Kensington Capital v. Vesta - Settled U. S. District Court, Northern District of Alabama Nature of Case: Securities Fraud Plaintiffs’ Counsel: Blumenthal & Nordrehaug; Milberg, Weiss, Bershad, Hynes & Lerach Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 30 of 94 Page ID #:1307 Manaster v. SureBeam - Settled United States District Court Nature of Case: Violation of Securities Act Plaintiffs’ Counsel: Blumenthal & Nordrehaug; Milberg Weiss Bershad Hynes & Lerach Ridgewood Capital Management v. Gensia - Settled U.S. District Court, Southern District of California, #CV-92-1500H Plaintiffs’ Counsel: Barrack, Rodos & Bacine; Kaplan, Kilsheimer & Fox; Wolf, Popper, Ross, Wolf & Jones; Law Offices of Joseph H. Weiss; Kaufman, Malchman, Kaufman & Kirby; Sullivan Hill; Blumenthal & Nordrehaug Shurman v. Scimed - Settled State of Minnesota District Court, Fourth District, #94-17640 Plaintiffs’ Counsel: Blumenthal & Nordrehaug; Milberg, Weiss, Bershad, Hynes & Lerach; Kaplan, Kilsheimer & Fox; Sullivan Hill; Law Offices of Lawrence G. Soicher. Sirota v. Swing-N-Slide - Settled Wisconsin District Court, County of Rock Wisconsin Nature of Case: Fraudulent Stock Buy-Back-Derivative Claim Plaintiff's Counsel: Blumenthal & Nordrehaug; Sullivan Hill; Milberg, Weiss, Bershad, Hynes & Lerach; Nowlan & Mouat Slatton v. G.E. Capital Mortgage Services - Settled Camden County Superior Court, New Jersey, #CAML0256198 Nature of Case: Forced order insurance Plaintiff’s Counsel: Blumenthal & Nordrehaug Somkin v. Molten Metal - Settled U.S. District Court, District of Massachusetts, #9710325PBS Nature of Case: Securities Fraud Plaintiff's Counsel: Blumenthal & Nordrehaug Sparks v AT&T - Settled Illinois District Court - Madison County Deceptive Practice claim - Leased consumer telephone equipment Plaintiff’s counsel - Carr Korein Tillery; Blumenthal & Nordrehaug; Whatley Drake Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 31 of 94 Page ID #:1308 EXHIBIT #2 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 32 of 94 Page ID #:1309 NORMAN B. BLUMENTHAL (SBN 068687) KYLE R. NORDREHAUG (SBN 205975) APARAJIT BHOWMIK (SBN 248066) BLUMENTHAL, NORDREHAUG & BHOWMIK 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551-1223 Facsimile: (858) 551-1232 Attorneys for Plaintiffs Martin Henshaw, Vern Souza, Jennifer Walton, and Deborah Moulton ADDITIONAL COUNSEL LISTED ON SECOND PAGE AANAND MEHTANI (SBN 254556) AKIN GUMP STRAUSS HAUER & FELD LLP 2029 Century Park East, Suite 2400 Los Angeles, California 90067-3012 Telephone: 310-229-1000 Facsimile: 310-229-1001 amehtani@akingump.com JOEL M. CORN (admitted pro hac vice) AKIN GUMP STRAUSS FIIAUER & FLD LLP 1333 New Hampshire Avenue, NW Washington, DC 20036-1564 Telephone: 202-887-4000 Facsimile: 202-887-4288 jcohn@akingump.com Attorneys for Defendant Home Depot U.S.A., Inc. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Case No. 8: 1 0-cv-0 13 92-CJC-RNB (Consolidated with Case No. 8:1 0-cv- 01827-CJC-RNB) [Assigned to the Honorable Cormac J. Carney] SETTLEMENT AGREEMENT 17 18 19 20 21 22 23 24 25 26 TIN HENSHAW, et al., Plaintiffs, VS. ME DEPOT U.S.A., INC., and ES 1 through 50, Defendant. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 27 28 SETTLEMENT AGREEMENT Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 33 of 94 Page ID #:1310 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DARREN J. CAMPBELL (SBN 223088) LAW OFFICES, OF DARRIEN J. CAIVIPI3ELL 2030 Main Street, Suite 1300 Irvine, CA 92614 Telephone: (949) 260-4901 Facsimile: (949) 271-4046 SCOTT B. COOPER (SBN 174520) THE COOPER LAW FIRM, P.C. 2030 Main Street, Suite 1300 Irvine, CA 92614 Telephone: (949) 724-9200 Facsimile: (949) 724-9255 ROGER R. CARTER (SBN 140196) THE CARTER LAW FIRM 2030 Main Street, 13th Floor Irvine, CA 92614 Telephone: (949) 260-4737 Facsimile: (949) 260-4754 Attorney for Plaintiff Paul Heinzman SETTLEMENT AGREEMENT Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 34 of 94 Page ID #:1311 1 Plaintiffs Martin Henshaw, Vern Souza, Jennifer Walton, Deborah Moulton, and 2 Paul Heinzman ("plaintiffs"), on behalf of themselves and all members of the putative 3 class as defined herein, and defendant Home Depot U.S.A., Inc. by and through their 4 I respective counsel, hereby agree and enter into this settlement agreement to resolve all 5 claims asserted by plaintiffs against Home Depot in the above referenced action as set 6 I forth herein (hereinafter "Agreement"). This action will be dismissed with prejudice as 7 I provided below. 8 I. THE LITIGATION 9 1. On August 12, 2010, plaintiffs Martin Henshaw and Vern Souza filed a 10 I complaint captioned Martin Henshaw and Vern Souza, on behalf of themselves and all 11 persons similarly situated v. Home Depot U.S.A., Inc. in the Orange County Superior 12 Court. Home Depot timely removed that action to this Court on September 15, 2010. 13 2. On August 25, 2010, plaintiff Paul Heinzman filed a complaint captioned 14 Paul Heinzman, on behalf of himself and all others similarly situated v. Home Depot 15 US.A., Inc. in the Orange County Superior Court. Home Depot timely removed that 16 1 action to this Court on December 1, 2010. 17 3. On July 19, 2011, this Court granted plaintiffs’ motion to consolidate 18 IHenshaw, et al. v. Home Depot US.A., Inc., Case No. 8:10-cv-01392-CJC-RNB, and 19 Heinzman v. Home Depot US.A., Inc., Case No. 8:10-cv-1827-CJC-RNB. 20 4. On July 22, 2011, plaintiffs filed a Consolidated Class Action Complaint 21 asserting claims pursuant to sections 201, 202, 203, and 227.3 of the California Labor 22 Code, section 17200 of the California Business & Professions Code, and the Private 23 Attorney General’s Act of 2004 ("PAGA"). 24 5. Plaintiffs’ claims in this litigation are based on the allegation that Home 25 Depot failed to pay salaried associates for all unused, earned vacation upon termination 26 of their employment. 27 28 1 SETTLEMENT AGREEMENT Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 35 of 94 Page ID #:1312 1 6. Plaintiffs allege class claims but have not yet moved for class certification 2 in the litigation. 3 7. The parties agreed to pursue mediation before Mark S. Rudy on October 4 112, 2011. As a result of the mediation and arms-length negotiations, the parties have 5 reached this Agreement. 6 8. In connection with their request for court approval of the Agreement, the 7 parties will request certification of the class as defined herein for settlement purposes 8 only. II. PLAINTIFFS’ CLAIMS AND BENEFITS OF SETTLEMENT 10 1. Plaintiffs believe that the claims asserted have merit under the California 11 Labor Code and the California Business and Professions Code, section 17200 et seq. 12 2. However, plaintiffs recognize and acknowledge the significant cost to 13 prosecute the litigation against defendants through trial and appeal. Plaintiffs also 14 recognize the uncertain outcome and the risk of loss in any litigation, especially in a 15 complex action such as this. Plaintiffs are also mindful of the inherent problems of 16 proof under, and possible defenses to, the causes of action asserted and that could be 17 asserted in the litigation. 18 3. Plaintiffs believe that this settlement confers substantial benefits on class 19 I members and, based on their evaluation, have determined that the settlement is in the 20 best interest of the named plaintiffs and the class. 21 III. HOME DEPOT’S DENTAL OF WRONGDOING AND LIABILITY 22 1. Home Depot denies each and all of the claims and contentions alleged by 23 plaintiffs. Home Depot expressly denies all charges of wrongdoing or liability arising 24 out of any of the acts, omissions, facts, matters, transactions, or occurrences alleged, or 25 that could have been alleged, in the litigation. 26 27 28 2 SETTLEMENT AGREEMENT Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 36 of 94 Page ID #:1313 2. Home Depot also denies that the litigation would have been appropriate for 2 class treatment, except for settlement purposes, because of the intractable management 3 problems that would have been associated with class-wide litigation. 4 3. Nevertheless, Home Depot has determined that further defense in these 5 consolidated actions would be protracted and expensive and that it is desirable that the 6 litigation be fully and finally settled upon the terms and conditions set forth herein. In 7 addition, Home Depot also has taken into account the uncertainty and risks inherent in 8 any litigation, especially in a complex action like this. 9 4. Nothing in the Agreement or any action taken in implementation thereof, or 10 any statements, discussions, or communications, materials prepared, exchanged, issued 11 or used during the course of settlement negotiations will be used in any fashion in any 12 other proceeding of any kind or be considered evidence of any violation of any federal, 13 state, or local law, statute, regulation, rule or executive order, or any obligation or duty 14 at law or in equity. Notwithstanding the foregoing, the Agreement may be used in any 15 proceeding that has as its purpose the interpretation or enforcement of the Agreement or 16 any orders or judgments of the Court entered in connection therewith. 17 IV. TERMS OF THE SETTLEMENT STIPULATION 18 The parties hereby stipulate and agree that, subject to the approval of the Court, 19 the litigation and the released claims shall be finally and fully compromised, released, 20 resolved, relinquished, discharged, and settled, and the litigation will be dismissed with 21 prejudice and without costs, as to the named plaintiffs and the putative class, upon and 22 subject to the terms and conditions of this Agreement. 23 A. CLASS CERTIFICATION 24 1. For settlement purposes only, the parties agree to the certification of the 25 settlement class, pursuant to Fed. R. Civ. P. 23(b)(3). The parties agree that such class 26 certification is solely for the purposes of settlement. Nothing in the Agreement will be 27 construed as an admission or acknowledgment by Home Depot that any class is proper 28 3 SETTLEMENT AGREEMENT Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 37 of 94 Page ID #:1314 I except as provided in this paragraph. Further, neither the Agreement nor approval of 2 the Agreement will be admissible in any court or other tribunal regarding the propriety 3 of class certification. In the event that the Agreement is not approved by the Court or 4 any appellate court, is terminated, or fails to be enforceable, Home Depot will not be 5 deemed to have waived or limited in any way any of its objections or defenses in the 6 I litigation. 7 2. For settlement purposes only, the class will include all salaried associates 8 employed by Home Depot in California whose employment was terminated between 9 August 12, 2006 and the date an order by the Court is entered preliminarily approving 10 the Agreement (the "settlement class"). 11 B. NOTICE TO CLASS MEMBERS 12 1. The parties agree to submit a motion for preliminary approval by February 13 129, 2012. 14 2. Home Depot will retain Gilardi & Co. LLC as the settlement administrator 15 to provide notice of the settlement to class members and to distribute settlement checks. 16 The parties agree to cooperate fully to resolve any issues identified by the settlement 17 administrator. The full cost of the settlement administrator including all mailings will 18 I be paid from the settlement fund. Nonetheless, settlement administrator costs will not 19 exceed $40,000. 20 3. Within 15 calendar days after preliminary approval by the Court, Home 21 Depot will provide the settlement administrator with the final list of class members 22 agreed upon by the parties. Such list will include for each class member their (i) name, 23 (ii) last known address, and (iii) social security number. 24 4. Within calendar 30 days after preliminary approval by the Court, the 25 settlement administrator will mail a notice of preliminary approval to each member of 26 the settlement class via first-class regular U.S. mail. The notice will be in the form 27 attached hereto as exhibit A or as otherwise approved by the Court. The notice will 28 El Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 38 of 94 Page ID #:1315 1 include a brief summary of the litigation; a summary of the key terms of Agreement, 2 I including Home Depot’s denial of liability; the definition of the settlement class; the 3 procedure and time period for objecting to the settlement and participating in the final 4 I approval hearing; a statement that the Court has preliminarily approved the settlement; 5 and information regarding the claims and opt-out procedure. 6 5. The mailing will also include a claim form, attached hereto as exhibit B, to 7 I each potential class member. The notice of settlement will instruct class members that 8 to participate in the settlement, they must complete the claim form and return it to the 9 settlement administrator no later than 60 calendar days after the date the notice was 10 mailed. The settlement administrator will be solely responsible for deciding whether 11 each completed claim form was timely returned. During the 60-day notice period, the 12 settlement administrator will report to the parties one time which class members have 13 failed to return a completed claim form and which notices have been returned as 14 undeliverable. The settlement administrator will use available databases in an effort to 15 locate class members whose notice was not delivered. However, the settlement 16 I administrator will conduct only a single re-mailing of the notice to class members 17 whose original notice was returned. Plaintiffs are free to provide updated address 18 information to the settlement administrator, but there will be no exceptions to the 60- 19 day period. Accordingly, any class member who fails to return a timely and complete 20 claim form within the 60-day period will be ineligible to receive any payment under this 21 Agreement. 22 6. The notice of settlement also will explain that any class member who 23 wishes to opt-out of the settlement class must file a written request to do so with the 24 settlement administrator within 45 days of the mailing date of the notice. The parties 25 agree that each individual settlement class member retains sole discretion to opt-out 26 under this provision. Accordingly, neither party will solicit or otherwise persuade or 27 28 5 SETTLEMENT AGREEMENT Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 39 of 94 Page ID #:1316 1 attempt to solicit or persuade any class member to participate in, opt out of, or object to 2 I the settlement. 3 7. All objections to the settlement must be filed in the Court and served upon 4 I all counsel of record no later than 45 days after the mailing of the notice of preliminary 5 approval. Objections must state the basis on which they are asserted and if any objector 6 intends to appear at the final approval hearing, either in person or through counsel, he or 7 she must include such fact and state the purpose for his or her appearance in his or her 8 objection. The parties will be permitted to respond in writing to such objections within 9 I the time period set by the Court. Members of the settlement class who fail to file and 10 serve timely written objections will be deemed to have waived any objections and will 11 be foreclosed from making any objection to the settlement. 12 8. If 35 or more class members properly opt out of the settlement or submit 13 timely written objections, Home Depot will have the right, in its sole discretion, and 14 notwithstanding any other provisions of the Agreement, to withdraw from, and cancel, 15 the Agreement in its entirety, whereupon the Agreement will be null and void for all 16 purposes. The right to withdraw from the settlement can be exercised only by a writing 17 stating that defendant is withdrawing from the Agreement, which is sent by counsel for 18 Home Depot to plaintiffs’ counsel, Blumenthal, Nordrehaug & Bhowmik, by facsimile 19 and by mail, no later than 20 business days after the expiration of the opt-out period. 20 C. WAIVER AND RELEASE 21 1. Plaintiffs, on behalf of themselves and all members of the settlement class 22 (except any class member who opts-out pursuant to paragraph B.6 above), on behalf of 23 their heirs, descendants, dependents, executors, administrators, assigns, and successors, 24 fully and finally release and discharge Home Depot, its prior and present subsidiaries 25 and affiliates, and their respective prior and present predecessors, successors, assigns, 26 representatives, officers, directors, agents, and employees ("collectively Home Depot") 27 from any and all claims and rights that they may have, whether now known or unknown, 28 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 40 of 94 Page ID #:1317 suspected or unsuspected, as of the date of preliminary approval for all claims of any I kind for unused, accrued vacation under the California Labor Code, California Business I and Professional Code, Wage Orders of the California Industrial Welfare Commission, Fair Labor Standards Act, Employee Retirement Income Security Act, and any other I local, state, and federal laws, including all wage and hour laws, common law, contract 1 and tort law, including, but not limited to, claims for fraud, and breach of the duty of I good faith and fair dealing, that were or could have been alleged based upon the facts and circumstances asserted in the consolidated complaint, including, but not limited to, all claims for penalties, interest, and attorneys’ fees (collectively "released claims"). Released claims will not include claims for retaliation, discrimination, disability, wage and hour claims unrelated to the alleged failure to pay for unused, accrued vacation on termination, and workers’ compensation. 2. Plaintiffs will seek dismissal of the litigation with prejudice within five calendar days of the effective date of the Agreement. The "effective date" is defined as the date after the appeal period from an order granting final approval of the Agreement has expired or, if an appeal is filed, the date after any such appeal is completed and the appeal has resulted in an affirmance of the order granting final approval. The waiver and release of claims set forth in paragraph C. 1 will be final and binding on plaintiffs and all members of the settlement class who have not exercised their right to opt-out of the settlement on the effective date. The parties intend that the judgment entered by the Court on final approval will have every preclusive effect permitted by law, and be final and binding, upon all class members. 3. With respect to any and all released claims, the parties stipulate and agree that, upon the effective date, plaintiffs and class members will be deemed expressly to have waived the provisions, rights, and benefits of California Civil Code section 1542, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of 7 SETTLEMENT AGREEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 41 of 94 Page ID #:1318 executing the release, which if known by him must have materially affected his settlement with the debtor. Plaintiffs, defendant, and each of the class members hereafter may discover facts in addition to or different from those which he, she, or it now knows or believes to be true with respect to any or all of the released claims (including unknown claims), but each plaintiff and class member will be deemed by operation of the judgment to have, fully, finally, and forever released, relinquished, resolved, discharged, and settled any and all of the released claims (including unknown claims), suspected or unsuspected, contingent or non-contingent, whether or not concealed or hidden, which now exist, or have existed upon any theory of law or equity now existing or coming into existence in the future, including but not limited to conduct which is negligent, intentional, with or without malice, or a breach of any duty, law, or rule, without regard to the subsequent discovery or existence of such different or additional facts. 4. The parties acknowledge that the above waiver and release was separately bargained for and is a material element of the Agreement. D. SETTLEMENT AMOUNTS 1. Home Depot, in exchange for the obligations and commitments made by plaintiffs herein, will pay the gross settlement amount of $1,600,000 (the "settlement fund"). This amount includes all amounts to be paid as attorneys’ fees, interest, costs, settlement payments, statutory and civil penalties, and named plaintiff enhancements. This is the maximum amount Home Depot is obligated to pay under the Agreement to members of the settlement class, their counsel, and the settlement administrator. Home Depot will separately pay the employer’s portion of applicable payroll taxes. 2. The settlement fund includes any and all interest accruals. 3. The parties agree to allocate $10,000.00 from the settlement fund to the settlement of plaintiffs’ claim brought pursuant to section 2699 of the California Labor Code. In compliance with section 2699(i) of the California Labor Code, 75 percent of that amount will be paid to the California Labor Workforce and Development Agency 8 SETTLEMENT AGREEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 42 of 94 Page ID #:1319 1 ("LWDA") within two weeks after the effective date. The remaining 25 percent will 2 remain part of the settlement fund. 3 4. Named plaintiffs Martin Henshaw, Vern Souza, and Paul Heinzman will 4 I each receive $10,000 and plaintiffs Jennifer Walton and Deborah Moulton will each 5 Ireceive $5,000 from the settlement fund as enhancements in consideration for their 6 execution of this Agreement and for their service as class representatives. The parties 7 agree that these payments will not be considered wages. Therefore, no payroll tax 8 deductions or income tax withholdings will be made from the above enhancements. 9 The settlement administrator will issue a Form 1099 to each plaintiff for the full amount 10 of the enhancement and plaintiffs will be solely responsible for paying any federal, 11 state, or local taxes owed on such amount. Each plaintiff agrees to indemnify and hold 12 Home Depot harmless from all liability, including all penalties, interest, and other costs, 13 that may be imposed by the Internal Revenue Service or other agency for any tax or 14 other obligations that may arise from payments made to each plaintiff under this 15 11 Agreement. 16 5. The parties agree not to treat the settlement fund as a "qualified settlement 17 fund" within the meaning of Treas. Reg. Section 1.468B- 1. 18 6. The settlement administrator will be responsible for preparing all necessary 19 W-2 and 1099 forms on behalf of Home Depot. The 1099 form will list Home Depot as 20 the payor and the W-2 forms will list Home Depot as the employer. 21 7. The plaintiffs and Home Depot and their counsel agree to cooperate with 22 the settlement administrator, each other and their tax attorneys and accountants to the 23 extent reasonably necessary to carry out the provisions of this sub-section. 24 8. Plaintiffs’ counsel will receive 28 percent of the gross settlement fund for 25 all past and future attorney’s fees, costs, and expenses necessary to prosecute and settle 26 this litigation and administer this Agreement. The settlement administrator will issue a 27 1099 form to each plaintiffs’ counsel for the full amount of attorney’s fees, costs, and 28 9 SETTLEMENT AGREEMENT Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 43 of 94 Page ID #:1320 1 expenses and each plaintiffs’ counsel will be solely responsible for paying any taxes 2 I owed on such amount. Plaintiffs’ counsel agrees to indemnify and hold Home Depot 3 I harmless from all liability, including all penalties, interest, and other costs, that may be 4 I imposed by the Internal Revenue Service or any other governmental agency regarding 5 I any tax or other obligations that may arise from payments made to plaintiffs’ counsel 6 pursuant to this Agreement. Within 10 calendar day after the effective date, plaintiffs’ 7 counsel will inform the settlement administrator of the amounts to be received by each counsel, which amounts will be paid 20 calendar days after the effective date. 9. Defendant will take no position on any request for a fee award pursuant to 10 I this Agreement. 11 10. To the extent the Court approves a lesser amount for the enhancements or 12 I attorney’s fees, the unapproved amount will be allocated back to the settlement fund. 13 E. PAYMENTS TO CLASS MEMBERS 14 1. The parties agree that the damages claims in this litigation are extremely 15 difficult to determine with any certainty, so the parties have agreed that the settlement 16 payments will be determined as follows. 17 2. The total vacation payments made to class members on tern -iination will be 18 determined using Home Depot payroll records. Home Depot will prepare a list showing 19 I the payments to individual class members as a percentage of the total payments. The 20 settlement fund, after deductions as described herein, will be allocated to class members 21 on the basis of these percentages. Thus, for example, a class member who received .05 22 percent of the total vacation payments to members of the class on termination will also 23 be allocated .05 percent of the settlement fund after the deductions as described herein. 24 I Notwithstanding the provisions of this paragraph, eligible class members who received 25 no vacation pay at termination will receive as a settlement payment the equivalent of 26 five hours of vacation pay at the same rate he or she would have received vacation pay 27 at termination. The amounts allocated to eligible class members who did not receive 28 10 SETTLEMENT AGREEMENT Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 44 of 94 Page ID #:1321 1 any vacation pay at termination will be subtracted from the settlement fund before it is 2 I determined the percentage amounts the other class members will receive. 3 3. Settlement payments made to individual class members will be divided in 4 all instances equally between wages and interest/penalties. 5 4. The appropriate withholding of federal, state, and local income taxes, and 6 I each class member’s share of FICA, FUTA, and Medicare taxes, will be made from the 7 payments to participating class members. The settlement administrator shall be solely 8 responsible for all tax withholding determinations. The settlement administrator will 9 issue Forms -W-2 to all class members at the times and in the manner required by the 10 Internal Revenue Code of 1986 and consistent with the Agreement for the portion of 11 each payment attributable to wages and a Form 1099 for the portion attributable to 12 penalties. If the Internal Revenue Code, the regulations promulgated thereunder, or 13 other applicable tax laws change after the effective date, the processes set forth in this 14 subsection may be modified in a manner to ensure compliance with any such changes. 15 The settlement administrator shall include appropriate withholding forms (e.g., Form 16 W-4 and W-9) in the claim form. — Each class member will be solely responsible for 17 paying any taxes (federal, state, or local) owed by the class member as a result of any 18 consideration received under this Agreement. Each class member agrees to indemnify 19 and hold Home Depot harmless from all liability regarding any tax or other obligations 20 owed by individual class members under this Agreement. 21 5. Home Depot will be responsible for paying the employer share of FICA, 22 FUTA, and Medicare taxes independent of the settlement fund, except as set forth in 23 paragraph E.9 below. 24 6. Within 15 calendar days after the effective date, Home Depot will send an 25 amount equal to the gross settlement fund to the settlement administrator. This amount 26 will be used to make settlement payments to eligible class members who are eligible to 27 28 11 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 45 of 94 Page ID #:1322 1 receive settlement payments (all class members who timely returned a completed claim 2 form and did not opt-out). 3 7. Within 30 calendar days after receipt of the settlement amount referred to 4 in paragraph E.6 by the settlement administrator, the settlement administrator will mail 5 by first-class mail to each eligible class member two checks: (1) a payroll check for the 6 amount of vacation pay due pursuant to the Agreement less all applicable withholding 7 and deductions, and (2) a check for the amount of penalties due under the Agreement. 8 In addition, the settlement administrator will issue a Form W-2 showing the amount of 9 wages in the year paid and a Form 1099 for each class member showing the amount of 10 interest/penalties paid. 11 8. The settlement administrator will take reasonable steps to re-mail checks 12 I that are returned as undeliverable. Plaintiffs may assist the settlement administrator in 13 I locating class members whose settlement checks were returned as undeliverable. All 14 settlement checks will be negotiable for 180 calendar days. 15 9. If a portion of the settlement fund is unclaimed because one or more class 16 I members fail to return a timely claim form, any such unclaimed amounts will be used to 17 pay Home Depot’s share of FICA, FUTA, and Medicare taxes. To the extent any such 18 unclaimed amounts exceed Home Depot’s share of taxes, the amounts will be allocated 19 pro rata to the remaining class members based upon a reformulation of the percentage 20 method described above in paragraph E.2. If a class member submits a timely claim 21 form, but fails to negotiate his or her settlement check within 180 calendar days after 22 receipt, the settlement administrator will forward the amount to the unclaimed property 23 division of the California Secretary of State in the name of the class member who timely 24 submitted the claim. 25 F. FINAL APPROVAL 26 1. This Agreement is contingent upon final approval, dismissal with prejudice 27 of the consolidated class action complaint, the non-withdrawal of Home Depot from the 28 12 SETTLEMENT AGREEMENT Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 46 of 94 Page ID #:1323 1 Agreement in accordance with paragraph B.8 above, and expiration of the appeal period 2 as provided in paragraphs C.2 and F.4. 3 2. Following the end of the notice period, the parties will file a joint motion 4 I for final approval of the settlement. The parties agree to take all necessary actions to 5 secure approval of the Agreement. 6 3. Plaintiffs will request dismissal of the litigation with prejudice as part of 7 I the motion for final approval. Such dismissal is a material term of this Agreement and 8 must be ordered as part of the order granting final approval. 9 4. In the event this Agreement is not approved by the Court or is disapproved 10 I on appeal, the Agreement will be null and void in its entirety, unless expressly agreed to 11 in writing by the parties. 12 G. MISCELLANEOUS 13 1. Stay of Litigation: The parties agree to the stay of all proceedings in the 14 I litigation, except such proceedings as may be necessary to complete and implement the 15 I Agreement, pending final approval of the Agreement. 16 2. Interpretation of the Agreement: The Agreement will be interpreted and 17 I enforced under the laws of the state of California without regard to its conflict of law 18 provisions. Any claim arising out of or relating to the Agreement, or the subject matter 19 hereof, will be resolved solely and exclusively in the United States District Court for the 20 Central District of California, and the parties hereby consent to the personal jurisdiction 21 of the Court over them solely in connection herewith. 22 3. Final Agreement: The terms and conditions of this Agreement constitute 23 the exclusive and final agreement between the parties with respect to the resolution of 24 the litigation. The Agreement is based solely on its terms and not in reliance upon any 25 I representations or promises other than those contained herein. The Agreement may be 26 modified only by a writing signed by the original signatories and approved by the Court. 27 28 13 SETTLEMENT AGREEMENT Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 47 of 94 Page ID #:1324 1 4. Enforcement: The United States District Court for the Central District of 2 I California will have jurisdiction to interpret and enforce this Agreement. 3 5. Counterparts: The Agreement may be executed in one or more actual or 4 telecopied counterparts, all of which will be considered one and the same instrument 5 and all of which will be considered duplicate originals. 6 6. Authority: Each individual signing below warrants that he or she has the 7 I authority to execute the Agreement on behalf of the party indicated. 8 7. No Prevailing Party: No party or member of the class will be considered a 9 I prevailing party for any purpose. Except as otherwise provided for in this Agreement, 10 each party will bear its own fees and costs. 11 8. No Unauthorized Public Comment: Named plaintiffs and their counsel 12 agree, both before and after approval of the settlement, not to disclose the terms of the 13 settlement, except in court papers or if required by legal process. Thus, named plaintiffs 14 and their counsel will not issue a press release, hold a press conference concerning the 15 settlement, or otherwise publicize the settlement. Notwithstanding this paragraph, the 16 named plaintiffs and their counsel may disclose that "this litigation has been resolved to 17 the satisfaction of all parties." Named plaintiffs and their counsel agree not to respond 18 to any press inquiries concerning the settlement, except to refer reporters to papers filed 19 with the Court. Notwithstanding the above, plaintiffs’ counsel may communicate with 20 class members for purposes of effectuating this Agreement, but in no event will counsel 21 solicit class members to opt out of the settlement. Nothing in this paragraph prohibits 22 plaintiffs’ counsel from posting court-filed documents on their websites for viewing by 23 class members. 24 In the event defendant believes that plaintiffs or their counsel have violated this 25 provision, counsel for the parties will meet and confer informally in an effort to resolve 26 the dispute. If any dispute cannot be resolved informally between the parties, it will be 27 submitted to the Court for resolution. The Court may enjoin named plaintiffs and their 14 SETTLEMENT AGREEMENT Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 48 of 94 Page ID #:1325 ja 25 12 010p Sears 1(707) 568-3243 p.2 ii counsel from making the statements and award reasonable attorney’s fees and costs associated with the bearing 9f the dispute. 9. Documents: Within 60 days after the effective date, pursuant to the parties’ stipulation regarding confid@ntial discovery material, the parties will return or confirm the destruction of any confidential information. IN WITNESS HEREOF, the parties have caused this Settlement Stipulation to be executed by their duly authorized attorneys: Dated: January L6, 2012 +Plaitiff Martin Nenshaw Dated: January 2012 Plaintiff Vernon Souza Dated: January , 2012 Plaintiff Paul Hemzman Dated: January , 2012 Plaintiff Jennifer Walton Dated: January, 2012 Plaintiff Deborah Moulton Dated: January , 2012 Derek Bottoms Senior Counsel - Employment Law 1. 2 3 4 5 6 7 8 91 10 It 12 13 14 15 16 11 • 18 19 20 21 22 23 24 25 26 Dated: January22012 28 15 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 49 of 94 Page ID #:1326 In.1q-?fl17 723 PM Intel 1Thrp.rt inn QTh-377•0XQ? I counsel from making the statements and award reasonable attorney’s fees and costs associated with tho hihig of the dispute. 3 9. Documents: Within 60 days after the effective date, pursuant to the 4. paric’ stipulation regarding confidential discovery material, the parties will return or S onnfirrn the destruction of any confidential information. 6 IN WITNESS HEREOF, the parties have caused this Settlement Stipulation to be 7 executed by their duly authorized attorneys: S 9 IDated: tuuy , 2012 10 11 12 --13 Dated: Januarya 2012 PIaixtiff Martin Henshaw lei a Plaintiff,Vernon ouza 14 15 16 17 19 Dated: January___, 2012 Dated: Tanuary_, 2012 Plaintiff Paul Helnzman Plaintiff Jennifer Walton 20 21 22 23 24 25 26 27 28 Dated: January _, 2012 Plaintiff Deborah Moulton Dated: January_, 2012 Derek Bottoms - Senior Counsel - Employment Law HOME DEPOT U.S.A INC. Dated: January ,2012 Norman B Blumenthal (N 06867) Kyle R. Nordrehaug (SBN 205975) Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 50 of 94 Page ID #:1327 23 24 25 26 27 28 counsel from making the statements and award reasonable attorney’s fees and costs 2 associated with the hearing of the dispute. 9. Documents: Within 60 days after the effective date, pursuant to the parties’ stipulation regarding confidential discovery material, the parties will return or confirm the destruction of any confidential information. [N WITNESS HEREOF, the parties have caused this Settlement Stipulation to be executed by their duly authorized attorneys: IDateci: February 2012 Plaintiff Martin Henshaw Plaintiff Vernon Souza -__ Plaintiff PauL inz ian Plaintiff Jennifer Walton P1 tiff Deborah Moulton cely Ier / Lice President and Associate General Counsel HOME DEPOT U.S.A., INC. Dated: February , 2012 Norman B. Blumenthal (SBN 068687) Kyle R. Nordrehaug (SBN 205975) 15 SETTLEMENT AGREEMENT 4 ’S 6 7 8 9 10 Ii 12 13 14 ’5 16 17 18 ’9 20 21 Dated: February , 2012 Dated: February ft,2012 Dated: February, 2012 Dated: February. 2012 Dated: February/, 2012 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 51 of 94 Page ID #:1328 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 52 of 94 Page ID #:1329 3 9. Documents: Within 60 days after the effective date, pursuant to the 8 9 Dated: January _,2012 10 11 12 Dated: January _,2012 13 14 Dated: January _,2012 15 16 17 Dated: January _,2012 18 19 20 Dated: January J3, 2012 21 22 Dated: January _,2012 23 24 25 26 27 Dated: January _,2012 28 1 counsel from making the statements and award reasonable attorney's fees and costs 2 associated with the hearing of the dispute. 4 parties' stipulation regarding confidential discovery material, the parties will return or 5 confirm the destruction of any confidential information. 6 IN WITNESS HEREOF, the parties have caused this Settlement Stipulation to be 7 executed by their duly authorized attorneys: Plaintiff Martin Henshaw Plaintiff Vernon Souza Plaintiff Paul Heinzman Plaintiff Jennifer Walton Plaintiff Deborah Moulton Derek Bottoms Senior Counsel - Employment Law HOME DEPOT U.S.A., INC. Norman B. Blumenthal (SBN 068687) Kyle R. Nordrehaug (SBN 205975) 15 SETTLEMENT AGREEMENT Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 53 of 94 Page ID #:1330 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 54 of 94 Page ID #:1331 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 55 of 94 Page ID #:1332 Settlement Agreement EXHIBIT “A” Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 56 of 94 Page ID #:1333 OHS West:261061348.1 IMPORTANT LEGAL NOTICE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MARTIN HENSHAW, et al., Plaintiffs, vs. HOME DEPOT U.S.A., INC., and DOES 1 through 50, Defendant. CASE NO. 8:10-cv-01392-CJC-RNB NOTICE OF CLASS ACTION SETTLEMENT AND SETTLEMENT HEARING TO: All salaried associates employed by Home Depot U.S.A, Inc. (“Home Depot”) in California whose employment was terminated between August 12, 2006 and ___________, 2012 [the date an order by the Court is entered preliminarily approving the Agreement]. THIS NOTICE AFFECTS YOUR RIGHTS. PLEASE READ IT CAREFULLY. 1. YOU ARE HEREBY NOTIFIED that a proposed settlement (the “settlement”) of the above-captioned class action (the “action”) pending in the United States District Court for the Central District of California has been reached by the parties and has been granted preliminary approval by the Court supervising the action. The proposed settlement will resolve all claims relating to vacation pay in this action (discussed further below). The Court has ordered that this notice be sent to you because you may be a class member. The purpose of this notice is to inform you of the settlement of this action and your legal rights under the settlement. You must file a claim form that is postmarked by __________, 2012 [60 days from mailing] to participate in the settlement. If you fail to file a timely claim form, you will receive nothing under the settlement, but you will be bound by its terms. SUMMARY OF LITIGATION 2. On August 12, 2010, plaintiffs Martin Henshaw and Vern Souza filed a complaint captioned Martin Henshaw and Vern Souza, on behalf of themselves and all persons similarly situated v. Home Depot U.S.A., Inc. in the Orange County Superior Court. Home Depot timely removed that action to federal court on September 15, 2010. On August 25, 2010, plaintiff Paul Heinzman filed a complaint captioned Paul Heinzman, on behalf of himself and all others similarly situated v. Home Depot U.S.A., Inc. in the Orange County Superior Court. Home Depot timely removed that action to federal court on December 1, 2010. On July 19, 2011, the District Court granted plaintiffs’ motion to consolidate Henshaw, et al. v. Home Depot U.S.A., Inc., Case No. 8:10-cv-01392-CJC-RNB, and Heinzman v. Home Depot U.S.A., Inc., Case No. Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 57 of 94 Page ID #:1334 OHS West:261061348.1 2 8:10-cv-1827-CJC-RNB. On July 22, 2011, plaintiffs filed a Consolidated Class Action Complaint. The claims in the action are based on the allegation that Home Depot failed to pay salaried associates for all unused, earned vacation upon termination of their employment. 3. The action claims pursuant to sections 201, 202, 203, and 227.3 of the California Labor Code, section 17200 of the California Business & Professions Code, and the Private Attorney General’s Act of 2004 (“PAGA”). The action seeks damages for unpaid vacation pay wages, interest, penalties, and attorneys’ fees and expenses. 4. After discovery and an exchange of relevant information, the parties agreed to enter into private mediation before mediator Mark S. Rudy on October 12, 2011 to try to resolve the claims. The parties thereafter worked with the mediator and were ultimately able to reach this settlement, whose terms are contained in the Settlement Agreement (“Agreement”) and are generally summarized in this notice. 5. You have received this notice because Home Depot’s records show you are a potential class member and your rights may be affected by this settlement. POSITIONS OF THE PARTIES 6. Home Depot denies each of the claims alleged by plaintiffs in the action. Home Depot contends that all of its employees have been compensated in compliance with the law, and that its conduct was not willful with respect to any alleged failure to pay any wages (including but not limited to vacation pay, final paychecks, or otherwise). Home Depot denies any wrongdoing or legal liability arising out of any of the facts or conduct alleged in the action and believes that it has valid defenses to plaintiffs’ claims. Neither the proposed settlement nor any action taken to carry out the proposed settlement should be construed or used as an admission against Home Depot of any fault, wrongdoing, or liability whatsoever. 7. Counsel for the plaintiffs (“class counsel”) have conducted significant investigation of the facts and law both before and after the action was filed. Such discovery and investigations have included the exchange of information pursuant to formal discovery, meetings and conferences, and interviews of potential witnesses and putative class members. Class counsel have further investigated the applicable law as applied to the facts discovered regarding the plaintiffs’ claims, Home Depot’s defenses, and the damages claimed by plaintiffs. 8. Plaintiffs have considered the expense and length of continued proceedings necessary to continue the action against Home Depot through trial and any possible appeals. Plaintiffs have also taken into account the uncertainty and risk of the outcome of further litigation, and the difficulties and delays inherent in such litigation, including those involved in class certification. Plaintiffs are also aware of the burdens of proof necessary to establish liability for the claims asserted in the action, Home Depot’s defenses, and the difficulties in establishing plaintiffs’ damages. Plaintiffs have also considered the settlement negotiations conducted by the parties and the recommendations of the mediator, who is highly experienced in employment litigation. Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 58 of 94 Page ID #:1335 OHS West:261061348.1 3 Based on the foregoing, plaintiffs have determined that the settlement is fair, adequate, and reasonable, and is in the best interests of the class. 9. Home Depot has also extensively investigated and researched the facts and circumstances underlying the issues raised in the action and the applicable law. Home Depot believes it has meritorious defenses to the action. However, Home Depot has concluded that further defense of this action would be lengthy and expensive for all parties. Therefore, Home Depot has agreed to settle this action in the manner and upon the terms set forth in the proposed Agreement to put to rest all claims that are or could have been asserted against it in the action. 10. The Court has made no ruling on the merits of the class members’ claims and has determined only that certification of the class for settlement purposes is appropriate under California law. PRELIMINARY APPROVAL OF THE SETTLEMENT 11. On [preliminary approval hearing date], the Court held a Preliminary Approval Hearing to consider the Agreement. On [date of preliminary approval order], the Court preliminarily certified the following class for settlement purposes consisting of all salaried associates employed by Home Depot in California whose employment was terminated between August 12, 2006 and ___________, 2012 [the date an order by the Court is entered preliminarily approving the Agreement] (“class period”). 12. At the Preliminary Approval Hearing, the Court appointed the following attorneys to represent the class in this action: Norman B. Blumenthal Kyle R. Nordrehaug Blumenthal, Nordrehaug & Bhowmik 2255 Calle Clara La Jolla, CA 92037 Telephone: (858)551-1223 13. If you are a member of the class, you will be bound by the settlement if it is approved, unless you make a written request for exclusion (“opt-out”) in the manner described below. SUMMARY OF SETTLEMENT TERMS 14. Settlement Amounts. The Agreement provides that Home Depot will pay $1,600,000.00 (“settlement fund”) to fully resolve the claims in the action. This amount includes all amounts to be paid as attorneys’ fees, interest, costs, settlement payments, statutory and civil penalties, and named plaintiff enhancements. This is the maximum amount Home Depot is obligated to pay under the Agreement to members of the settlement class, their counsel, and the settlement Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 59 of 94 Page ID #:1336 OHS West:261061348.1 4 administrator. Home Depot will separately pay the employer’s portion of applicable payroll taxes. After the following Court-approved deductions, the amount remaining will be distributed to class members who submit timely and valid claim forms to the settlement administrator pursuant to a Court-approved plan of allocation, as detailed below: (a) Deductions. The following deductions will be made from the settlement fund: (i) Settlement Administrator Costs. The Court has tentatively approved a payment to the settlement administrator, Gilardi & Co. LLC, currently estimated not to exceed $40,000, as costs to notify the class and process claims. (ii) Attorneys’ Fees and Expenses. The Court has appointed Blumenthal, Nordrehaug & Bhowmik as counsel for the class. Class counsel has been prosecuting the action on behalf of the class on a contingency fee basis (that is, without being paid to date) while advancing litigation costs and expenses. The Agreement provides that class counsel may request from the Court payment not to exceed 28 percent of the settlement fund (currently anticipated to be $448,000.00) for attorneys’ fees, costs and expenses, which amount will be allocated according to the Agreement between counsel in the action. The amount approved will constitute full compensation for all legal fees and expenses of counsel in the action, including any work they do in the future. Class members are not personally responsible for any fees or expenses. (iii) Incentive Award to Named Plaintiffs. Class counsel will also seek an enhancement payment award for each of the named plaintiffs for acting as the representatives on behalf of the class. Plaintiffs Martin Henshaw, Vern Souza, and Paul Heinzman will each receive $10,000 and plaintiffs Jennifer Walton and Deborah Moulton will each receive $5,000 from the settlement fund as enhancements in consideration for their execution of the waivers and releases and for their service as class representatives. (iv) PAGA Payment. The parties agree to allocate $10,000.00 from the settlement fund to the settlement of claims brought pursuant to section 2699 of the California Labor Code. In compliance with section 2699(i) of the California Labor Code, 75 percent of that amount will be paid to the California Labor Workforce and Development Agency within two weeks after the effective date. The remaining 25 percent will remain part of the settlement fund. (b) Payment to Class Members: Plan of Allocation. The parties agree that damages in this litigation are extremely difficult to determine with any certainty, so the parties have agreed that the settlement payments will be determined as follows: The total vacation payments made to class members on termination will be determined using Home Depot payroll records. Home Depot will prepare a list showing the payments to individual class members as a percentage of the total payments. The settlement fund, after deductions as described herein, will be allocated to class members on the basis of these percentages. Thus, for example, a class Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 60 of 94 Page ID #:1337 OHS West:261061348.1 5 member who received .05 percent of the total vacation payments to members of the class on termination will also be allocated .05 percent of the settlement fund after the deductions as described herein. Notwithstanding the provisions of this paragraph, eligible class members who received no vacation pay at termination will receive as a settlement payment the equivalent of five hours of vacation pay at the same rate he or she would have received vacation pay at termination. The amounts allocated to eligible class members who did not receive any vacation pay at termination will be subtracted from the settlement fund before it is determined the percentage amounts the other class members will receive (c) Tax Matters. The appropriate withholding of federal, state, and local income taxes, and each class member’s share of FICA, FUTA, and Medicare taxes, will be made from the payments to participating class members. The settlement administrator shall be solely responsible for all tax withholding determinations. The settlement administrator will issue Forms W-2 to all class members at the times and in the manner required by the Internal Revenue Code of 1986 and consistent with the Agreement for the portion of each payment attributable to wages and a Form 1099 for the portion attributable to penalties. Settlement payments made to individual class members will be divided in all instances equally between wages and interest/penalties. Home Depot will be responsible for paying the employer share of FICA, FUTA, and Medicare taxes independent of the settlement fund, except if a portion of the settlement fund is unclaimed because one or more class members fail to return a timely claim form, any such unclaimed amounts will be used to pay Home Depot’s share of FICA, FUTA, and Medicare taxes. To the extent any such unclaimed amounts exceed Home Depot’s share of taxes, the amounts will be allocated pro rata to the remaining class members based upon a reformulation of the percentage method described above in paragraph E.2. If a class member submits a timely claim form, but fails to negotiate his or her settlement check within 180 calendar days after receipt, the settlement administrator will forward the amount to the unclaimed property division of the California Secretary of State in the name of the class member who timely submitted the claim. 15. Release. If approved by the Court, the settlement will be binding on all members of the class and will bar any class member who does not timely opt out of the settlement from bringing certain claims against Home Depot described below. After final approval by the Court, the settlement fully and finally releases and discharges Home Depot, its prior and present subsidiaries and affiliates, and their respective prior and present predecessors, successors, assigns, representatives, officers, directors, agents, and employees (“collectively Home Depot”) from any and all claims and rights that they may have, whether now known or unknown, suspected or unsuspected, as of the date of preliminary approval for all claims of any kind for unused, accrued vacation under the California Labor Code, California Business and Professional Code, Wage Orders of the California Industrial Welfare Commission, Fair Labor Standards Act, Employee Retirement Income Security Act, and any other local, state, and federal laws, including all wage and hour laws, common law, contract and tort law, including, but not limited to, claims for fraud, and breach of the duty of good faith and fair dealing, that were or could have been alleged based upon the facts and circumstances asserted in the consolidated complaint, including, but not limited to, all claims for penalties, interest, and Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 61 of 94 Page ID #:1338 OHS West:261061348.1 6 attorneys’ fees (collectively “released claims”). Released claims will not include claims for retaliation, discrimination, disability, wage and hour claims unrelated to the alleged failure to pay for unused, accrued vacation on termination, and workers’ compensation. In addition, class members who do not opt out of the settlement will waive any and all rights and benefits under section 1542 of the California Civil Code with respect to the released claims, which states as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Thus, subject to and in accordance with the provisions of the Agreement, even if the settlement class members may hereafter discover facts in addition to or different from those which they now know or believe to be true with respect to any or all of the released claims (including unknown claims), but each plaintiff and class member will be deemed by operation of the judgment to have, fully, finally, and forever released, resolved, discharged, and settled any and all of the released claims (including unknown claims), suspected or unsuspected, contingent or non-contingent, whether or not concealed or hidden, which now exist, or have existed upon any theory of law or equity now existing or coming into existence in the future, including but not limited to conduct which is negligent, intentional, with or without malice, or a breach of any duty, law, or rule, without regard to the subsequent discovery or existence of such different or additional facts. 16. Condition of Settlement. This settlement is conditioned upon the Court entering an order at or following the final approval hearing approving the settlement as fair, reasonable, adequate, and in the best interests of the settlement class. PROCEDURE FOR SEEKING MONETARY RECOVERY 17. If you want to participate in the settlement and receive money under the settlement, you must sign and date the enclosed claim form and mail the completed claim form postmarked by [60 days from mailing] to the settlement administrator at the following address. Home Deport Vacation Pay Settlement c/o Gilardi & Co. LLC P.O. Box 1110 Corte Madera, CA 94976-1110 Telephone: (866) 295-1466 A copy of your claim form is enclosed. (If you need an extra copy, contact the settlement administrator at the address or telephone number above). If any information provided on the Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 62 of 94 Page ID #:1339 OHS West:261061348.1 7 claim form is incorrect, please make corrections. For example, if your address is incorrect, please indicate your correct address. Also, please provide your telephone number and any other requested information if it is not already filled in. If you wish to have confirmation that the settlement administrator has received your claim form, please send your claim form to the settlement administrator by certified U.S. Mail with a return-receipt request. 18. If you are a class member and you do not elect to exclude yourself from the settlement in the manner described in paragraph 20, below, you will be bound by all of the provisions of the settlement, including a full release of claims that will prevent you from separately suing Home Depot for the matters being settled in this action (see paragraph 15). 19. ANY CLASS MEMBER WHO DOES NOT SUBMIT A TIMELY CLAIM FORM WILL NOT RECEIVE A SHARE OF THE SETTLEMENT. IF YOU DO NOTHING ─ THAT IS, IF YOU DO NOT MAIL OR DELIVER A TIMELY CLAIM FORM ─ YOU WILL NOT BE ENTITLED TO A SHARE OF THE SETTLEMENT AWARD. HOWEVER, YOU WILL BE BOUND BY THE TERMS OF THE SETTLEMENT, INCLUDING THE RELEASE. PROCEDURE FOR EXCLUDING YOURSELF FROM THE SETTLEMENT 20. Class members may exclude themselves (“opt-out”) from the settlement by submitting a written exclusion request to the settlement administrator by certified mail at the address listed in paragraph 17, above, on or before [45 days from mailing]. To opt out, your written statement must include your name, address, telephone number, and last four digits of your social security number. Opt-out requests that do not include all required information, or that are not submitted timely, will be disregarded. Persons who submit valid and timely opt-out requests will not participate in the settlement and will not be bound by either the settlement or the judgment. PROCEDURE FOR OBJECTING TO THE SETTLEMENT 21. If you are a class member and believe that the settlement should not be finally approved by the Court for any reason, or if you object to the proposed enhancement payments to the named plaintiffs or attorneys’ fees and expenses award, and want the Court to consider your objection, then on or before [45 days from mailing], you must file a written objection, in which you state the basis of your objection, with the Court, located at 411 West Fourth Street, Santa Ana, CA 92701-4516. You must also at the same time mail copies of your objection to both class counsel and Home Depot’s counsel at the addresses below. Class Counsel Norman B. Blumenthal Kyle R. Nordrehaug Blumenthal, Nordrehaug & Bhowmik 2255 Calle Clara Home Depot’s Counsel Joel M. Cohn Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Ave., NW Washington DC, 20036-1564 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 63 of 94 Page ID #:1340 OHS West:261061348.1 8 La Jolla, CA 92037 22. You may also appear at the final approval hearing scheduled for ____________ a.m. on ______________, in Courtroom 9B of the United States District Court for the Central District of California, located at 411 West Fourth Street, Santa Ana, CA 92701-4516, to have your objection heard by the Court. Objections not previously filed in writing in a timely manner as described above will not be considered by the Court. If you object to the settlement, you will remain a member of the class, and if the Court approves the settlement, you will be bound by the terms of the settlement in the same way as class members who do not object, unless you have opted out of the settlement in the manner described in paragraph 20, above. 23. Any member of the class who does not object in the manner provided above shall have waived any objection to the settlement, whether by appeal or otherwise. HEARING ON THE SETTLEMENT 24. You are not required to attend the final approval hearing. 25. The final approval hearing on the adequacy, reasonableness, and fairness of the settlement will be held at for ____________ a.m. on ______________, in Courtroom 9B of the United States District Court for the Central District of California, located at 411 West Fourth Street, Santa Ana, CA 92701-4516. The hearing may be continued without further notice. 26. You may object, personally or through an attorney, to the settlement by mailing your objection and following the procedures outlined in paragraphs 21-22, above. 27. Any class member who does not object in the manner provided above shall be deemed to have approved the settlement and to have waived such objections and shall be foreclosed from making any objections (by appeal or otherwise) to the settlement. CHANGE OF ADDRESS 28. If you move after receiving this notice, if it was misaddressed or if for any reason you want your payment or future correspondence concerning this action and the settlement to be sent to a different address, you should send your current preferred address to the Settlement Administrator listed in paragraph 17. ADDITIONAL INFORMATION 29. This notice is only a summary of the action and the settlement. For a more detailed statement of the matters involved in the action and the settlement, you may refer to the pleadings, the Agreement, and other papers filed in the action, which may be inspected at the Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 64 of 94 Page ID #:1341 OHS West:261061348.1 9 Records Office of the Clerk of the United States District Court, located at 411 West Fourth Street, Santa Ana, CA 92701-4516, during regular business hours of each court day, or through the Court’s PACER website. In addition, the motion for attorneys’ fees and other court filed documents will be posted on class counsel’s website at http://www.bamlawca.com. 30. All inquiries by class members regarding this notice and/or the settlement should be directed to the settlement administrator or class counsel. PLEASE DO NOT CONTACT THE CLERK OF THE COURT, THE JUDGE, OR HOME DEPOT’S ATTORNEYS WITH INQUIRIES. Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 65 of 94 Page ID #:1342 Settlement Agreement EXHIBIT “B” Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 66 of 94 Page ID #:1343 OHS West:261061511.1 CLAIM FORM Henshaw, et. al. v. Home Depot U.S.A., Inc. United States District Court, Central District of California, Case No. 8:10-cv-01392-CJC-RNB THE DEADLINE FOR SUBMITTING THIS FORM IS [INSERT DATE 60 DAYS FROM MAILING OF NOTICE]. I. CLAIMANT IDENTIFICATION <> <> <> <> <> <> > Please make any name/address corrections below: ________________________________ _________ ________________________________ _________ ________________________________ _________ II. GENERAL INFORMATION If you were employed by Home Depot U.S.A., Inc. (“Home Depot”) as a salaried associate in California whose employment was terminated between August 12, 2006 and ___________, 2012 [the date an order by the Court is entered preliminarily approving the Agreement], you may be eligible to participate in the settlement of the class action, Henshaw et al. v. Home Depot U.S.A., Inc., Case No. 8:10-cv-01392-CJC-RNB, United States District Court for the Central District of California. Pursuant to the Order of the District Court, dated [preliminary approval date], in order to receive money from the settlement, you must sign this claim form and return it by first-class mail, postmarked no later than _____________, 2012 [ 60 days from mailing], to the following address: Home Depot Vacation Pay Settlement c/o Gilardi & Co. LLC P.O. Box 1110 Corte Madera, CA 94976-1110 Telephone: (866) 295-1466 If you fail to submit your claim form by that date, your claim will be rejected and you will not receive any money in connection with the settlement (although you will be bound by the other provisions of the Settlement Agreement approved by the Court). A claim form will be deemed submitted when sent by first class mail and postmarked. If you want proof that your submitted a claim form, please send the claim form by U.S. Certified Mail with a return receipt requested. III. YOUR CLAIM INFORMATION Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 67 of 94 Page ID #:1344 OHS West:261061511.1 According to payroll records maintained by Home Depot your total vacation payment at termination was ___. Based on information currently available, we estimate your share of the settlement will be approximately $___ if your claim form is accepted. Your share of the settlement may differ from this estimate depending on the number of claims submitted. IV. RELEASE OF CLAIMS I hereby fully and finally release and discharge Home Depot, its prior and present subsidiaries and affiliates, and their respective prior and present predecessors, successors, assigns, representatives, officers, directors, agents, and employees (“collectively Home Depot”) from any and all claims and rights that they may have, whether now known or unknown, suspected or unsuspected, as of the date of preliminary approval for all claims of any kind for unused, accrued vacation under the California Labor Code, California Business and Professions Code, Wage Orders of the California Industrial Welfare Commission, Fair Labor Standards Act, Employee Retirement Income Security Act, and any other local, state, and federal laws, including all wage and hour laws, common law, contract and tort law, including, but not limited to, claims for fraud, and breach of the duty of good faith and fair dealing, that were or could have been alleged based upon the facts and circumstances asserted in the consolidated complaint, including, but not limited to, all claims for penalties, interest, and attorneys’ fees (collectively “released claims”). Released claims will not include claims for retaliation, discrimination, disability, wage and hour claims unrelated to the alleged failure to pay for unused, accrued vacation on termination, and workers’ compensation. In addition, I waive any and all rights and benefits under section 1542 of the California Civil Code with respect to the released claims, which states as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Thus, subject to and in accordance with the provisions of the Agreement, even if I may hereafter discover facts in addition to or different from those which they now know or believe to be true with respect to any or all of the released claims (including unknown claims), I will be deemed by operation of the judgment to have, fully, finally, and forever released, relinquished, resolved, discharged, and settled any and all of the released claims (including unknown claims), suspected or unsuspected, contingent or non-contingent, whether or not concealed or hidden, which now exist, or have existed upon any theory of law or equity now existing or coming into existence in the future, including but not limited to conduct which is negligent, intentional, with or without malice, or a breach of any duty, law, or rule, without regard to the subsequent discovery or existence of such different or additional facts. I have received the class notice. I submit this claim form under the terms of the proposed Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 68 of 94 Page ID #:1345 OHS West:261061511.1 settlement described in the class notice. I also submit to the jurisdiction of the District Court with respect to my claim as a settlement class member and for purposes of enforcing the release of claims stated in the Agreement and class notice. The full and precise terms of the proposed settlement are contained in the Agreement filed with the Court. I further acknowledge that I am bound by the terms of any judgment that may be entered in this class action. I agree to furnish additional information to support this claim if required to do so. If I am the executor and/or heir of a settlement class member or a representative of a settlement class member, I have provided appropriate documentation about the capacity in which I am submitting this claim form on separate sheets attached. I declare under penalty of perjury under the laws of the State of California that the foregoing information is true and accurate, that I have read and understand the Class Notice that was mailed with this claim form, and agree to abide by the terms of the class notice and this claim form. Executed this ___day of , 2012. (Signature) Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 69 of 94 Page ID #:1346 EXHIBIT #3 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 70 of 94 Page ID #:1347 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 71 of 94 Page ID #:1348 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 72 of 94 Page ID #:1349 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 73 of 94 Page ID #:1350 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 74 of 94 Page ID #:1351 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 75 of 94 Page ID #:1352 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 76 of 94 Page ID #:1353 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 77 of 94 Page ID #:1354 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 78 of 94 Page ID #:1355 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 79 of 94 Page ID #:1356 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 80 of 94 Page ID #:1357 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 81 of 94 Page ID #:1358 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 82 of 94 Page ID #:1359 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 83 of 94 Page ID #:1360 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 84 of 94 Page ID #:1361 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 85 of 94 Page ID #:1362 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 86 of 94 Page ID #:1363 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 87 of 94 Page ID #:1364 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 88 of 94 Page ID #:1365 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 89 of 94 Page ID #:1366 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 90 of 94 Page ID #:1367 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 91 of 94 Page ID #:1368 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 92 of 94 Page ID #:1369 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 93 of 94 Page ID #:1370 Case 8:10-cv-01392-DOC-RNB Document 75-2 Filed 05/10/12 Page 94 of 94 Page ID #:1371