34-2013-00145259

Lamberto Montero vs. Empire Today, LLC

Nature of Proceeding: Motion for Preliminary Approval of Class Action Settlement

Filed By: Lee, Larry W.

Plaintiff Lamberto Montero’s unopposed motion for preliminary approval of class action
settlement in this wage and hour class action is granted. Code of Civil Procedure §
382, California Rules of Court, Rule 3.769.

Defendant Empire Today, LLC has filed a notice of non-opposition asking that the
Court grant the motion.

Newberg on Class Actions (4th Ed.), the most authoritative treatise on class actions,
discusses the process for approving the settiement of a class action. At § 11:24,
“Procedure for Submitting Class Settlement for Approval,” Newberg describes the
review at the preliminary stage as the submission by the parties of the essential terms
of the agreement for informal review of the settlement papers by the Court. In
reviewing a request for preliminary approval of a class action settlement, the Court’s
task is to determine whether the proposed settlement is within the “range of
reasonableness” that would warrant sending out a notice of the settlement and giving
the class members the opportunity to object. (Newberg on Class Actions, 3d Ed.
(1992) § 11.25). In making its fairness determination, the Court should consider the
relevant factors, such as the strength of the Plaintiffs’ case, the risk, expenses,
complexity and likely duration of further litigation, the risk of maintaining class action
status through trial, the amount offered in settlement, the extent of discovery
completed and the stage of the proceedings, and the experience and views of counsel.
(Dunk v. Ford Motor Co., (1996) 48 Cal. App. 4th 1794,1801.) Preliminary approval by
the trial court is simply a conditional finding that the settlement appears to be within the
range of acceptable settlements. (See, e.g. Kullar v. Footlocker Retail Inc. (2008) 168
Cal. App. 4th 116.) Generally, the Court will presume the absence of fraud or collusion
in negotiation of the settlement unless evidence to the contrary is offered. In short,
there is a presumption that the negotiations were conducted in good faith. (Newberg,
supra., at §11.51.)

The Court finds that the proposed settlement appears not to be the product of fraud or
overreaching and appears to be fair, reasonable, adequate and in the bests interest of
the members of the class and thereby meets the criteria for preliminary approval. (
th
Nordstrom Com. Cases (2010) 186 Cal.App.4 576, 581.) Pursuant to the proposed
settlement, Defendant has agreed to pay a amount of $1,400,000 into a settlement
fund pursuant to which class members (sales representatives alleged to have been
unlawfully classified as independent contractors) will receive payments based upon the
number of sales leads provided to each member. The settlement also includes a
$10,000 incentive payment to the named Plaintiff and also allows class counsel to
seek no more than $466,666,00 in fees and $75,000 in costs. The settlement also

provides for a $20,000 payment for Labor Code § 2698 penalties, 75% of which is
payable to the California Labor and Workforce Development Agency and 25% payable
to the settlement fund.

The Court therefore preliminarily approves the settlement. The Court also approves
the notice of settlement, provisionally certifies the class for purposes of settlement,
confirms Plaintiff as the class representative, Moving Counsel as Class Counsel, and
approves CPT Group, Inc. as the settlement administrator.

The Court will sign the proposed order.

The final approval hearing shall take place on Tuesday, May 27, 2014, at 2:00 p.m. in
this department.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by CRC Rule 3.1308 and Local Rule 1.06(D). Plaintiff’s counsel is ordered to
notify Defendant’s counsel immediately of the tentative ruling system and of the correct
department and time of the hearing and to be available at the hearing, in person, or by
telephone, in the event Defendant’s counsel appears without following the procedures
set forth in Local Rule 1.06(B).