2013-00147707-CU-OE

Kenneth West vs. Vivint, Inc.

Nature of Proceeding: Motion for Preliminary Approval of Class Settlement

Filed By: Nordrehaug, Kyle R.

Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement is GRANTED.
C.C.P., sec. 382, Calif. Rules of Court, Rule 3.769.

Plaintiff class counsel requests that the Court (1) grant preliminary approval of the proposed Settlement of this class action with Defendant, (2) approve the form and
method for providing class-wide notice, (3) directing that notice be given to the class
members set a hearing on final approval of class action settlement, (4) provisionally
certify the settlement class, and (5) Appoint Gilardi & Co., LLC as the settlement
administrator.

This Court is asked to preliminarily certify West as a putative class action, on behalf of
“all individuals who are or previously were employed by Defendant Vivint, Inc. in
California as non-exempt employees who were eligible to receive bonus compensation
payments during the same pay period in which they were eligible to receive overtime
compensation at any time during the Class Period. [Sept. 18, 20009 to Jan. 31, 2014.]”
Defendant has stipulated that the class may be certified for settlement purposes only.
(Agreement, III(12).) The class consists of more than 100 current and former
employees.

The complaint in West v. Vivint, Inc. was filed on July 5, 2013, as a wage and hour
class action, alleging failure to correctly pay overtime wages due to a miscalculation of
the regular rate and the alleged failure to provide all legally required meal periods for
the non-exempt employees. The complaint has been amended and the Second
Amended Complaint alleges unfair competition, Bus. & Prof. Code, sec.17200, failure
to pay overtime and regular wages, Labor Code, sec. 510, et seq., failure to provide
accurate itemized statements, Labor Code, sec. 226 and failure to provide wages
when due, Labor Code, sec. 201, et seq., and a Private Attorneys General violation,
Labor Code, sec. 2698, et seq.

Plaintiffs’ counsel has conducted a thorough investigation into the facts of the class
action, including defendant’s policies and practices and class member data, including
the weeks worked by the class members. Class counsel employed a damage expert
to prepare a valuation of the claims.

The settlement is the result of mediation with Judge William C. Pate (Ret.).

The key features of the Settlement are that:

As consideration for this Settlement, Defendant has agreed to pay Four Hundred
Ninety-Nine Thousand Dollars ($499,000.00) (“Gross Common Fund”). (Agreement at
§ 11(16).)

The Gross Common Fund shall be used: (1) to satisfy the claims of all Settlement
Class Members, specified herein; (2) to satisfy all Plaintiffs Litigation Expenses; (3) to
satisfy all claims for an award of Plaintiffs Attorney Fees; (4) to satisfy the Class
Representative Service Award; (5) to satisfy the PAGA Payment; and (6) to satisfy the
Claims Administration Expenses incurred in this action. (Agreement at § III(2).)
Importantly, this is an all-in settlement with no reversion to Defendant, such that the
entire Gross Common fund shall be paid out.

The Net Common Fund shall equal the net amount available for the settlement
payments to the Class Members who file valid and timely claims, after deducting from
the Gross Common Fund all of the following: the Class Representative Service Award,
Plaintiffs Attorney Fees, Plaintiffs Litigation Expenses, and Claims Administration
Expenses. (Agreement II(19).) The Class Representative Service Award is $7,500, Plaintiffs Attorney Fees are 25%
of the Gross Common Fund or $124,750, Plaintiffs’ Litigation Expenses are not to
exceed $15,000, the LWDA share of the PAGA Payment (is 75% of the PAGA
Payment of $20,000.00, the remaining 25% to the Settlement Class), and Claims
Administration Expenses are $15,000.

The trial court has broad powers to determine whether a proposed settlement in a
class action is fair. Rebney v. Wells Fargo Bank (1990) 220 Cal. App. 3″* 1117, 1138.

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.

The Court grants preliminary approval of the settlement.

The final settlement approval date shall be scheduled for Monday, August 25, 2014, at
2 p.m. in Dept. 53, or such later date as is necessary for the administrator and
counsel.

The Court will sign the formal order submitted.