Matthew T. Theriault (SBN 244037) …blogs.reuters.com › alison-frankel › files › 2013 › 09...

DECLARATION OF MATTHEW T. THERIAULT IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES AND EXPENSES

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Matthew T. Theriault (SBN 244037) [email protected] Ryan H. Wu (SBN 222323) [email protected] Arnab Banerjee (SBN 252618) [email protected] Capstone Law APC 1840 Century Park East, Suite 450 Los Angeles, California 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 Attorneys for Plaintiffs Summer York and KaTina Burns

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA—WESTERN DIVISION

SUMMER YORK, an individual, on behalf of other members of the general public similarly situated, Plaintiffs, vs. STARBUCKS CORPORATION, a Washington corporation, and STARBUCKS COFFEE COMPANY, a Washington corporation, Defendants.

Case No.: 2:08-cv-07919-GAF-PJW DECLARATION OF MATTHEW T. THERIAULT IN SUPPORT OF PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND EXPENSES Date: October 28, 2013 Time: 9:30 a.m. Place: Court Room 740 Complaint Filed: December 2, 2008 Trial Date: None

Case 2:08-cv-07919-GAF-PJW Document 224-1 Filed 08/09/13 of 37 Page ID #:9525


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DECLARATION OF MATTHEW T. THERIAULT

I, Matthew T. Theriault, declare as follows:

1. I am an attorney admitted to the State Bar of California and the

United States District Court for the Central District of California. I am a partner

with Capstone Law APC, counsel for Summer York (“York”) and KaTina Burns

(“Burns”). Unless the context indicates otherwise, I have personal knowledge of

the following facts, and if called as a witness, I could and would testify

competently to them. I make this declaration in support of Plaintiffs’ Motion for

Attorneys’ Fees and Expenses.

MY EXPERIENCE AS A CLASS ACTION LITIGATOR

2. I graduated from Western New England College, School of Law in

Springfield, Massachusetts, in January 2001, and was admitted to practice law in

the State of Connecticut in June 2001. From the time I graduated until

December 2005, I practiced law at Consumer Law Group, LLC, in Rocky Hill,

Connecticut. Consumer Law Group focused its practice primarily on class

actions. At Consumer Law Group, I focused on consumer litigation involving

auto dealership fraud, loan financing, and debt collection practices.

3. In January 2006, I moved to Los Angeles, California and transferred

to the firm of Garfield & Tepper in Los Angeles. I was admitted to practice law

in the State of California in September 2006. In January 2007, I joined Initiative

Legal Group LLC (Initiative), where I began working exclusively on wage and

hour class actions.

4. I was employed by Initiative when this lawsuit was brought by Ms.

York in December 2008. In October 2012, I left Initiative for Capstone Law

APC (“Capstone”). York thereafter retained Capstone to represent her in this

lawsuit. Since 2008, a number of attorneys from Capstone and Initiative have

worked on various aspects of this matter at various times, but I have consistently

been involved in all aspects of this litigation. The term “Plaintiffs’ Counsel,”



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used throughout, refers to Initiative and/or Capstone.

5. Since January 2007, I conservatively estimate that I have

contributed significant work in at least 50 putative or certified class actions.1 I

am Court-appointed lead class counsel in the ongoing certified class actions:

• Rodriguez v. Swissport North America, Inc. (L.A. Super. Ct. No.

BC441173) (Palazuelos, J.): I was specifically appointed lead

class counsel on behalf of a certified class consisting of over

4600 non-exempt, hourly employees alleging issuance of wage

statements that violate Labor Code section 226(a) and seeking

penalties pursuant to Labor Code section 226(e) and PAGA

penalties. This action was certified on April 12, 2013 after

multiple rounds of supplemental briefing.

• In re: Taco Bell Wage And Hour, No. CV 01314-LJO-DLB,

2013 U.S. Dist. LEXIS 380 (E.D. Cal. Jan. 2, 2013): In this wage

and hour class action, I was involved primarily with the class

certification efforts, specifically, supervising the certification

strategy and briefing, and conducting the oral argument on behalf

of the seven plaintiffs’ firms involved. The case was certified in

January 2013;

• In Re: AutoZone, Inc., Wage and Hour Employment Practices

Litigation, No.: 3:10-md-02159-CRB: In this wage and hour

class action, I was involved primarily with the class certification

efforts (granted Dec. 2012), including the briefing and oral

1 During my employment with Initiative (2007 through 2012), I gained

considerable experience from its litigation of numerous class actions, See, e.g., Memorandum & Order Regarding Motion for Class Certification and Motions to Strike (Dkt. No. 155), 49:23-27 (finding Initiative adequate class counsel based on “long list of class action cases that it has successfully certified over the years.”)



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argument;

6. I was substantially involved in the following class actions approved

for settlement:

• Zamora v. Countrywide Home Loans, Inc. (L.A. Super. Ct. Case

No. 360026) (Bendix & Buckley, JJ.): This wage and hour class

action was filed in October 2006. Shortly after the start of my

employment at Initiative in January 2007, I litigated all aspects

of this matter through class certification, defendants’ several

(unsuccessful) decertification attempts, negotiations of the

classwide settlement, trial preparation, and final settlement. The

case certified in June 2010, and the class settlement was

preliminarily approved in October 2012 and finally approved in

March 2013;

• Mansfield v. Brackenhoff Mgmt. Group, Inc. (L.A. Super. Ct. No.

BC356188): I litigated all aspects of this wage and hour class

action, through class certification (Nov. 2007), preliminary

approval (March 2008) and final approval (July 2008);

• Blair v. Jo-Ann Stores, Inc. (L.A. Super. Ct. No. BC394795): I

litigated all aspects of this wage and hour class action, through

certification (May 2009), preliminary approval (Dec. 2009), and

final approval (June 2010);

• Nevarez v. Trader Joe’s Co. (L.A. Super. Ct. No. BC373910): I

litigated all aspects of this wage and hour class action through

preliminary approval (Sept. 2009) and final approval (Jan. 2010);

• Mobley v. GlobeGround North Am. LLC (L.A. Super. Ct. No.

BC356051): I litigated all aspects of this wage and hour class

action through preliminary approval (Sept. 2008) and final

approval (Feb. 2009);



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• Kisliuk v. ADT Security Servs., Inc. (C.D. Cal. No. 08-03241): I

litigated all aspects of this wage and hour class action through

preliminary approval (Aug. 2010) and final approval (Jan. 2011);

• Gong-Chun v. Aetna Life Insurance Company (E.D. Cal. Case

No. 09-01995): I was substantially involved in the settlement of

this wage and hour class action (preliminary approval in Feb.

2012 and final approval in July 2012); and,

7. I am currently involved in other certified class actions:

• Cook v. United Ins. Co. of America (Contra Costa Super. Ct. No,

MSC10-00425: I was substantially involved in the certification

efforts, resulting in conditional certification in November 2012;

• Iskanian v. CLS Transportation Los Angeles LLC (Los Angeles

Superior Court Case No. BC356521): I litigated all aspects of

this matter through certification (Oct. 2009). This case is

currently pending before California Supreme Court;

8. I am the lead counsel for Plaintiffs in this case. I personally

participated in every strategic decision in this case. I personally participated in

every mediation and settlement conference with Starbucks, and I personally

argued before the Court on contested issues that directly affected the success of

the litigation.

OVERVIEW OF THE LITIGATION

9. Plaintiffs’ Counsel was contacted by York, a former employee of

Starbucks in connection with potential employment-related claims. Plaintiffs’

Counsel made an initial determination that York’s inquiries and complaints

about Starbucks were consistent with the type of claims that Plaintiffs’ Counsel

was experienced in handling. Once these initial interviews of York revealed

potential wage and hour claims, Plaintiffs’ Counsel conducted additional, in-

depth interviews of York and reviewed employment documents in York’s



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possession (mainly, wage statements and employee reviews), to assess the

strengths and weaknesses of the claims, including potential defenses.

10. In bringing an action, including a class action, Plaintiff’s Counsel

bears a risk based on the contingent nature of the fee agreement that Plaintiffs’

Counsel typically enters into with prospective clients, including with Plaintiffs

here. In other words, neither York nor Burns were required to pay any retainer

and Plaintiffs’ Counsel advanced all costs. Thus, Plaintiffs’ Counsel assumed

the full risk that its fees would not be paid in the event no recovery was obtained.

Moreover, the out-of-pocket costs required for the successful litigation of a class

action can be considerable, and this case was no exception.

11. Fortunately, here, Starbucks is and was a well-known and

financially secure company, which, in Plaintiffs’ Counsel’s view, minimized the

risk of non-payment due to potential insolvency. While risk of insolvency

seemed remote, Starbucks’ position as a Fortune 100 company brought with it

well-heeled and highly skilled defense counsel from the law firm of Akin Gump,

which has successfully represented Starbucks in several cases. See, e.g., Chau v.

Starbucks Corp., 174 Cal. App. 4th 688 (2009) (overturning $86 million dollar

award in tip-pooling class action); White v. Starbucks Corp., 497 F. Supp. 2d

1080 (N.D. Cal. 2007) (granting summary judgment in Starbucks’ favor in case

alleging off-the-clock violations); Delsing v. Starbucks Coffee Corp., 2009 U.S.

Dist. LEXIS 90962 (D. Minn. 2009) (denying class certification in tip-pooling

case due to intra-class conflicts); Cummings v. Starbucks Corp., Case No. 2:12-

cv-06345 (C.D. Cal. Dec. 22, 2011) (granting summary judgment in Starbucks’

favor on employees’ claims of improper time rounding); Gates v. Starbucks

Corp., 2:09-cv-09359-GAF-PJW (C.D. Cal. July 16, 2012) (order dismissing

claims for waiting time penalties).

12. Following the pre-litigation research and additional conversations

with York, Plaintiffs’ Counsel offered to represent her on a contingency fee



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basis. York also agreed to serve as a class representative in a class action

lawsuit. York understood her fiduciary role as a class representative, and, in

Plaintiffs’ Counsel’s opinion, her conduct in this litigation demonstrates her

commitment to that role.

13. During the case’s pendency, Plaintiffs’ Counsel was contacted by

Burns, a class member, who alleged, among other claims, on-duty meal period

claims resulting from Starbucks’ Two-Partner Rule. She also alleged having

worked overtime, meaning that her wage statement for those pay periods would

not have listed a numeric overtime rate, which Plaintiffs alleged violated

California’s wage statement statute, Labor Code section 226(a). Burns

expressed her interest in assisting with the lawsuit, and in 2013, in connection

with the parties’ settlement discussions and to effectuate the terms of the

settlement agreement, Starbucks consented to the addition of Burns as a

proposed class representative, and informally confirmed that Burns had worked

overtime during the relevant time period.

PLAINTIFFS’ CLAIMS

14. York worked for Starbucks from January 15, 2003 to August 20,

2008, first as a barista and then as a shift supervisor.2 During her employment,

York received periodic wage statements that were alleged to have violated

California’s wage statement statute, Labor Code section 226(a), because they did

not contain the applicable hourly rates, the name of the legal entity that

employed her, and the total hours worked. See, e.g., Memorandum & Order

Regarding Starbucks Corporation’s Motion for Partial Summary Judgment (Dkt.

No. 70) (concerning York’s off-the-clock and wage statement claims). For these

violations, York sought statutory remedies pursuant to Labor Code section

2 Declarations submitted by York throughout this litigation establish these

facts. (See, e.g., Dkt. Nos. 63, 88-7, and 170-4).



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226(e) and under the Labor Code Private Attorneys General Act, Labor Code

section 2698, et seq. (“PAGA”). These claims presented considerable risk

mainly due to the absence of case law addressing Labor Code section 226(a)’s

requirements and because of relatively mixed, if not conflicting case law

interpreting the “injury” requirement for statutory penalties under Labor Code

section 226(e).

15. York also alleged that she worked off-the-clock, both before and

after her shift, and during meal periods, and therefore she alleged minimum and

overtime wage violations pursuant to Labor Code section 1194 and California’s

Unfair Competition Law, Business & Professions Code sections 17200, et seq.

Off-the-clock claims are often the more difficult wage and hour claims to certify

and ultimately prove because of the lack of documentary evidence supporting the

claims and the presumption that the hours reflected in the time records are

accurate. York had little documentary evidence to support off-the-clock work,

which in itself is not surprising given the nature of the claims, but did testify in

detail about a few specific examples during which it occurred. Moreover, in

order to prevail, York would have also had to prove that Starbucks knew or

should have known that York was working off-the-clock. Thus, there was a

considerable risk that York would not prevail on these claims.

16. York also alleged violations of California’s meal period statutes,

Labor Code sections 226.7(a) and 512, specifically, that her meal periods were

late, interrupted, or missed due to work demands, and that Starbucks’ policies

prevented her from taking off-duty meal periods during a “Two-Partner”

situation (i.e., partners were required to remain on the premises during a meal

break when they were only one of two scheduled partners). York also alleged

that Starbucks’ time-keeping system (the Point of Service, or “POS”) did not

allow partners to log back-in from a meal period until 30 minutes had expired,

and thus, that the time records did not accurately reflect the violations that had



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occurred.

17. Therefore, like her off-the-clock claims, York compellingly testified

as to meal period violations, but had little by way of additional documentary

evidence to support the claims. Moreover, an analysis of her time records, which

were obtained through discovery, revealed the existence of missed and late meal

periods, though Starbucks argued that the record alone was insufficient to

establish a violation. In other words, Starbucks argued that even if the time

records revealed missed and late meal periods, that fact alone would not establish

liability because York could not reliably establish that the missed or late meal

breaks were attributable to Starbucks.

18. York also alleged violations of California’s rest period statute,

Labor Code section 226.7(a), in that she was not provided with timely and

compliant rest breaks. York’s rest period claims presented significant challenges

because Starbucks was not required to maintain rest break records. Thus, in the

absence of such records, York would have had to convincingly testify as to

violations.

19. York also alleged that she was not paid her final, undisputed wages

on her day of separation, in violation of Labor Code section 203. In addition to

her own testimony, York had documentary evidence (by way of wage

statements) indicating that she was not paid all wages on the day of her

separation. However, Labor Code section 203 imposes penalties only for

“willful” violations. Therefore, while there was documentary evidence tending

to establish the late payment itself, Starbucks argued that the evidence

convincingly established that the late payment was not “willful.” Thus, even on

an individual basis, there were unique challenges associated with each claim.

20. On September 11, 2008, Plaintiffs’ Counsel sent notice of York’s

claims to the Labor and Workforce Development Agency (“LWDA”) to satisfy

PAGA’s statutory prerequisite pursuant to Labor Code section 2699.3(a)(1). On



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October 24, 2008, the LWDA provided written notice that it would not

investigate the allegations, which authorized her to seek penalties on behalf of

aggrieved employees and the State of California.

SUMMARY OF ALL MOTION PRACTICE

21. The parties engaged in substantial motion practice. The following is

a list of major motions and briefing:

Filing Date Party Motion/Memo/Pleading

12/2/08 Plaintiff Complaint

2/05/09 Defendant Answer to Complaint

3/18/09 Plaintiff First Amended Complaint

4/06/09 Defendant Answer to Amended Complaint

6/05/09 Plaintiff Motion to Compel Discovery

6/18/09 Plaintiff Supplement, Motion to Compel Discovery

9/23/09 Defendant Motion to Deny Certification

10/05/09 Plaintiff Opposition, Motion to Deny Certification

10/06/09 Plaintiff Motion to Compel Discovery

10/15/09 Defendant Opposition, Motion to Compel Discovery

11/09/09 Defendant Motion for Summary Adjudication

11/16/09 Plaintiff Opposition, Summary Adjudication

11/23/09 Defendant Reply, Summary Adjudication

3/24/10 Defendant Motion to Exclude Declarations

3/31/10 Defendant Supplement, Motion to Exclude Declarations

7/08/10 Defendant Motion to Stay Case

7/19/10 Plaintiff Opposition, Motion to Stay

7/26/10 Defendant Reply, Motion to Stay

7/28/10 Plaintiff Motion to Certify Class

8/27/10 Defendant Motion to Strike Plaintiff’s Trial Plan

8/27/10 Defendant Motions to Strike Expert Testimony



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8/30/10 Defendant Opposition, Motion to Certify Class

9/03/10 Plaintiff Opposition, Motion to Strike Trial Plan

9/03/10 Plaintiff Opposition, Motions to Strike Expert Testimony

9/13/10 Defendant Reply, Motion to Strike Trial Plan

9/13/10 Plaintiff Reply, Motion to Certify Class

9/13/10 Defendant Reply, Motions to Strike Expert Testimony

9/17/10 Defendant Evidentiary Objections, Motion to Certify Class

2/07/11 Plaintiff (1st) Supplemental Memo, Motion to Certify Class

2/07/11 Defendant (1st) Supplemental Memo, Motion to Certify Class

7/05/11 Defendant Reconsideration, Summary Adjudication

7/18/11 Plaintiff Opposition, Reconsideration

7/25/11 Defendant Reply, Reconsideration

10/17/11 Plaintiff (2nd) Supplemental Memo, Motion to Certify Class

10/17/11 Defendant (2nd) Supplemental Memo, Motion to Certify Class

3/01/12 Defendant Memo re Class Notice

3/01/12 Plaintiff Memo re Class Notice

7/19/13 Plaintiff Ex Parte re Class Notice

7/20/12 Defendant Opposition, Ex Parte

7/30/12 Plaintiff Motion for Partial Summary Judgment

7/30/12 Plaintiff Reconsideration, Motion to Certify Class

8/6/12 Defendant Opposition, Reconsideration

8/13/12 Plaintiff Reply, Reconsideration

8/13/12 Defendant Summary Adjudication and Decertification

8/20/12 Defendant Opposition, Partial Summary Judgment

8/27/12 Plaintiff Reply, Summary Judgment

8/31/12 Defendant Partial Summary Judgment

8/31/12 Plaintiff Opposition, Summary Adjudication and Decertification

9/10/12 Defendant Reply, Summary Adjudication and Decertification



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9/10/12 Plaintiff Opposition, Partial Summary Judgment

9/17/12 Defendant Reply, Partial Summary Judgment

5/21/13 Plaintiff Motion for Preliminary Approval of Settlement

22. A total of 9 court hearings were held in this case, either for motions

or for status conferences.

SUMMARY OF WORK FOR NON-CERTIFICATION MOTION PRACTICE

23. From the outset of the litigation, York pursued her off-the-clock,

meal period, rest period, wage statement, and late final pay claims. Plaintiffs’

Counsel conducted substantial discovery relating to these claims and engaged in

substantial motion practice.

24. This section details the relevant motion practice and its impact on

Plaintiffs’ Counsel’s evaluation of the proposed class-wide settlement. Aside

from the Motion to Vacate Trial Dates (Dkt. No. 192), Plaintiffs prevailed on

every contested non-certification motion.

25. Motions to Compel Discovery. In June 5, 2009, York moved to

compel production of names and information. (Dkt. No. 25.) The Magistrate

Judge granted Plaintiffs’ motion on June 30, 2009. (Dkt. No. 33.) Then, on

October 6, 2009, York again moved to compel production of discovery, this time

for employee data from 6000 stores. (Dkt. No. 41.) Defendants ended up

partially compromising, but the Magistrate Judge issued a detailed discovery

order to prevent Starbucks from avoiding production. (Dkt. No. 59.)

26. Starbucks’ First Motion for Summary Judgment: On November 9,

2009, Starbucks filed a motion for summary adjudication as to York’s individual

off-the-clock, late final payment claims, and wage statement claims. (Dkt. No.

60.) This motion was the first of several related to California’s wage statement

statute, Labor Code section 226, which, in sum, resulted in a refinement of the

triable claims and more certainty with respect to Starbucks’ potential liability.

Moreover, the wage statement claims involved relatively novel issues of



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statutory interpretation, which continued to evolve during this lawsuit. In fact, in

response to the varying decisions issued during the pendency of this lawsuit, the

California Legislature amended Labor Code sections 226(a) and (e), effective

2013, to clarify the intent on the statute. Thus, the Court’s orders as to wage

statement liability, damages and class certification presented numerous appellate

issues for both parties, the risks of which were carefully considered by Plaintiffs’

Counsel in its evaluation of the reasonableness of the settlement.

27. Starbucks’ motion was predicated upon York receiving periodic

paychecks and wage statements during her employment. From December 2007,

the beginning of the statute of limitations period for claims for penalties under

Labor Code section 226(e) and PAGA, through August 2008, York received

wage statements from Starbucks that did not state a total number of hours

worked (one number, in the aggregate), the name of the legal entity that was her

actual employer, or the numeric overtime rate of pay, which she alleged violated

Labor Code section 226(a).

28. Starbucks’ motion, which was appropriate because the relevant facts

– the contents of the wage statements – were not in dispute, sought a legal

determination that none of the alleged defects violated Labor Code section

226(a), and, nonetheless, that York had not suffered a sufficient “injury” to

justify an award of penalties under Labor Code section 226(e).3

29. In December 2009, after a hearing on the matter, the Court partially

granted Starbucks’ motion, finding that Starbucks’ use of a fictitious name

(“Starbucks Coffee Company”) did not violate Labor Code section 226(a). (Dkt.

No. 70.) However, the Court also denied Starbucks’ motion, determining that

3 As noted above, Starbucks also moved for judgment as to York’s off-the-

clock claims and final pay claims. The Court denied Starbucks’ motion related to these claims. (Dkt. No. 70)



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Starbucks’ wage statement violated the statute because it failed to state the total

hours worked and the numeric overtime rate, and that York presented sufficient

evidence of an “injury” to justify statutory damages pursuant to Labor Code

section 226(e).

30. Motion to Stay Wage Statement Claims: In July 2010, Starbucks

moved to stay York’s wage statement claims arguing that, because Price v.

Starbucks had been appealed, the California Court of Appeal might make a

determination with respect to the substantive law that would ultimately resolve

the wage statement claims at issue here. After briefing, the Court denied

Starbucks’ motion to stay. (Dkt. No. 93.)

31. Starbucks’ Motion for Reconsideration re Wage Statements: During

the pendency of the class certification motion, Starbucks moved for

reconsideration of the Court’s order denying its motion for summary judgment as

to York’s wage statement claims, relying on two California appellate decisions

relating to wage statements, Morgan v. United Retail, Inc., 186 Cal. App. 4th

1136 (2010) and Price v. Starbucks Corp., 192 Cal. App. 4th 1136 (2011).

32. In Price, the court clarified the standard for recovery of statutory

damages under Labor Code section 226(e), specifically, the type or level of

“injury” that would and would not entitle the employee to statutory damages.

Applying this new standard, the Court granted reconsideration, holding that

York’s injuries did not entitle her to statutory damages under Labor Code section

226(e).

33. In Morgan, the court held the wage statement statute did not require

employers to separately state the total hours worked as an aggregate. Thus, the

Court granted reconsideration holding that Starbucks’ wage statements complied

with the statute in this respect.

34. Despite these adverse rulings, the Court’s previous finding, that the

wage statement violated Labor Code section 226(a) because it did not state a



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numeric overtime rate, remained the law of the case. This holding, coupled with

York’s standing as Labor Code Private Attorney General under PAGA, and

additional discovery by Plaintiffs’ Counsel, later provided the bases for York’s

motion for summary judgment on behalf of all aggrieved employees, infra.

35. York’s Motion for Summary Judgment re Wage Statements: In

March 2012, Plaintiffs’ Counsel deposed Starbucks’ designee, Jacqueline Gintz,

concerning Starbucks’ procedures relating to the preparation and contents of its

wage statements provided to all of its California employees. This testimony

established that Starbucks’ wage statements provided to all employees failed to

state a numeric overtime rate when overtime wages were paid.

36. In July 2012, York moved for summary judgment on her wage

statement claim, seeking specific findings that York had properly exhausted her

PAGA prerequisites and was therefore permitted to seek PAGA violations on

behalf of all aggrieved employees, and that Starbucks’ wage statements violated

Labor Code section 226(a). (Dkt. No. 170.)

37. Starbucks cross-moved for summary judgment on the same issue.

Starbucks asserted a plethora of legal challenges to PAGA, including an

elaborate constitutional challenge to the validity of PAGA. Starbucks also

argued that York was not entitled to a liability and damages finding as to all

aggrieved employees because she had not moved for certification of the PAGA

claims under Rule 23.

38. During class certification, York expressly reserved the right to

pursue PAGA as a private attorney general without certifying the claims under

Rule 23. The California Supreme Court provided the primary basis for this

position following its decision in Arias v. Super. Ct. (Angelo Dairy), 46 Cal. 4th

969 (2009), holding that PAGA was an enforcement action that was not subject

to class certification requirements. Despite this holding, its application in federal

courts with respect to Rule 23 had not been consistent. York’s argument was



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bolstered, however, by the Court’s holding in McKenzie v. Fed. Express

Corp.765 F. Supp. 2d 1222 (C.D. Cal. 2011), finding that Rule 23 need not be

satisified to obtain representative status under PAGA.

39. Ultimately, the Court granted York’s motion for summary judgment,

securing a favorable liability determination with respect to wage statement

liability. The Court denied York’s motion to the extent that she sought a finding

in advance of trial of the amount of PAGA damages per violation. The Court

also denied Starbucks’ cross-motion related to PAGA’s constitutionality.

WORK IN PREPARATION FOR CLASS CERTIFICATION

40. Plaintiff’s Counsel appropriately expended the most hours on class

certification, with over 35% of its total hours devoted to investigation of class

claims, discovery, and multiple rounds of certification briefing. Plaintiffs’

Counsel expended considerable hours investigating class claims, interviewing

class members and obtaining class discovery in advance of a motion for class

certification. Plaintiffs’ Counsel expended additional hours expended more

hours on class certification issues, including oppositions to Starbucks’ motions

denying certification or decertifying the class, than any other task. Absent this

investigation and briefing, Plaintiffs would not have been able to achieve this

class-wide settlement, and the following summarizes some of the key actions.

41. Written Discovery: Plaintiffs’ written discovery requests led to the

production of considerable evidence, including the policies directly at issue (i.e.,

the meal period, rest period, time-keeping, etc.), as well as those policies and

procedures that potentially affected Starbucks’ ability to comply with the Labor

Code. Plaintiffs’ Counsel analyzed over 12,000 pages of documents that were

produced by Starbucks. Plaintiffs’ Counsel identified and obtained the policies

and procedures that would ultimately form the backbone of the motion for class

certification, namely Starbucks’ on-duty meal period policy, the Two-Partner

Rule.



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42. Plaintiffs’ Counsel also sought the time and wage records for the

class members, which were produced only after York prevailed on her motion to

compel. Plaintiffs’ Counsel analyzed the records with the assistance of Dr.

Robert Fountain. The analysis of these records was used in connection with

York’s motion for class certification, and thereafter, in connection with

Plaintiffs’ Counsel’s evaluation of Starbucks’ potential liability for wage

statement violations.

43. Plaintiffs’ Counsel also sought the identities and addresses of the

putative class members, which were produced only after the Court order

following York’s motion to compel. Starbucks produced a list containing the

names and the purported last known addresses and phone numbers of

approximately 124,600 non-exempt employees. (Dkt. No. 33.) This list was

updated on several occasions thereafter.

44. Class Member Interviews and Declarations: Following the

production of the class members’ contact information, Plaintiffs’ Counsel

attempted to contact thousands of class members, ultimately securing

declarations from more than 500, which were submitted in connection with

York’s motion for class certification. The interviews helped Plaintiffs’ Counsel

understand how Starbucks’ policies interact with employees’ actual work duties

and aided counsel’s development of legal theories of certification. These efforts

also resulted in Plaintiffs’ Counsel’s initial contact with Burns, who would

ultimately join this suit as a class representative.

45. Expert Witnesses: Plaintiffs’ Counsel also made use of expert

testimony relating to survey methodology and time record analysis. Plaintiffs’

Counsel retained Dr. Becky Wu of Luth Research to conduct a survey to assess

the breadth of the potential violations across the class. Dr. Jon Krosnick

provided testimony concerning the viability of survey methodology to provide

reliable evidence of class-wide violations and damages. Dr. Robert Fountain



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analyzed the time and wage records to quantify the occurrence of certain events

as identified by the records. All three experts provided expert declarations and

were deposed prior to York’s certification efforts, though their analyses and

opinions, especially Fountain’s, were considered throughout the case and

especially during settlement negotiations. A fourth expert, Sean Chasworth, was

retained to analyze York’s time records (and the time records of those working

with her) to determine potential occurrences of on-duty meal periods during a

Two Partner situation. His declaration was submitted in opposition to Starbucks’

motion for summary judgment related to York’s on-duty meal period claims.

46. Depositions: The parties took approximately 44 depositions in this

matter. Starbucks deposed York, three of York’s expert witnesses, and

approximately 15 class members. Plaintiffs’ Counsel deposed York’s manager,

three corporate designees, Starbucks’ expert witness, and approximately 20 class

members. These depositions provided considerable evidence concerning, inter

alia, the strengths and weaknesses related to the wage statement, on-duty meal

period, and rest period claims. The following is a list of the depositions,

including the date and location:

Date Party Deponent Location

6/12/2009 Defendant Summer York Los Angeles, CA

7/16/2009 Plaintiff Jana Rutt Irvine, CA

9/23/2009 Plaintiff Carolyn Dach Los Angeles, CA

1/21/2010 Plaintiff Robert Decker Seattle, WA

8/9/2010 Plaintiff Becky Wu Los Angeles, CA

8/10/2010 Defendant Victoria Ainis Los Angeles, CA

8/10/2010 Defendant Jenny Le Los Angeles, CA

8/11/2010 Defendant Aaron Nyswonger Los Angeles, CA

8/11/2010 Defendant Diana Suncin Los Angeles, CA

8/12/2010 Defendant Daniel Alvillar Los Angeles, CA



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8/12/2010 Defendant Robert Fountain Los Angeles, CA

8/13/2010 Defendant Jamie Vasquez Los Angeles, CA

8/13/2010 Defendant Anouria Ashe Los Angeles, CA

8/16/2010 Defendant Gustavo Lopez Los Angeles, CA

8/17/2010 Defendant Darrell Harris Los Angeles, CA

8/17/2010 Defendant Vanessa Vazquez Los Angeles, CA

8/18/2010 Defendant Jon Krosnick Los Angeles, CA

8/19/2010 Defendant Noemi Cuevas Los Angeles, CA

8/19/2010 Defendant Jonathan Chambless Los Angeles, CA

8/11/2010 Defendant Christopher Carrasquillo Los Angeles, CA

8/23/2010 Defendant Kandis Snowball Los Angeles, CA

8/24/2010 Defendant Diane Ortiz Los Angeles, CA

9/7/2010 Plaintiff Adrienne Filley San Francisco, CA

9/7/2010 Plaintiff Haley Besthorn Sacramento, CA

9/7/2010 Plaintiff Matthew McCabe Sacramento, CA

9/7/2010 Plaintiff Morgan Murphy Sacramento, CA

9/7/2010 Plaintiff Hingking Su San Francisco, CA

9/8/2010 Plaintiff Brianne Cameron Los Angeles, CA

9/8/2010 Plaintiff Wendy Espinoza Los Angeles, CA

9/8/2010 Plaintiff Garrett Hager San Diego, CA

9/8/2010 Plaintiff Veronica Limon San Diego, CA

9/8/2010 Plaintiff Jourdan Reedus Los Angeles, CA

9/8/2010 Plaintiff Jason Stump San Diego, CA

9/9/2010 Plaintiff Jennifer Hart San Diego, CA

9/9/2010 Plaintiff Jacqueline Hartman San Diego, CA

9/9/2010 Plaintiff Mark Nord San Diego, CA

9/9/2010 Plaintiff Enrique Robledo San Diego, CA

9/10/2010 Plaintiff Brandon Alvarez San Diego, CA



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9/10/2010 Plaintiff Barbara Balaz San Diego, CA

9/10/2010 Plaintiff Eugene Kim San Diego, CA

9/10/2010 Plaintiff Kevin Lopez Los Angeles, CA

9/10/2010 Plaintiff Franchesca Ngyuen San Diego, CA

3/23/2012 Plaintiff Jacqueline Gintz Seattle, WA

8/22/2012 Plaintiff Nathan D. Woods Los Angeles, CA

MOTION PRACTICE RE: CERTIFICATION

47. Starbucks’ Motion to Deny Certification Is Denied: In September

2009, prior to the filing of York’s motion for class certification, Starbucks filed a

pre-emptive motion to deny class certification as to York’s meal and rest period

claims. (Dkt. No. 38.) Starbucks argued, among other things, that predominance

under Rule 23(b)(3) could not be satisfied, specifically by relying on federal

decisions interpreting California’s meal and rest break statutes in a manner that

imposes only the most minimal obligations upon the employer.

48. York opposed the motion on the merits, marshaling considerable

evidence and briefing in a matter of just several days. York relied on the meal

and rest period policies, including Starbucks’ Two-Partner Rule, deposition

testimony from Starbucks’ designees, expert testimony, and approximately 30

declarations from putative class members. York argued that class-wide liability

could be determined by reference to common policies aside from the meal and

rest period policies themselves. Therefore, liability could be determined by

analyzing the impact of Starbucks’ strict customer service standards and

management compensation structure on Labor Code compliance. Plaintiffs’

Counsel also argued that the motion was premature by demonstrating that the

parties had not even completed pre-certification discovery.

49. The Court denied Starbucks’ motion on October 7, 2009 because

discovery had not been completed. (Dkt. No. 48.) Notably, had the Court

granted Starbucks’ motion, the subsequent motion practice and discovery related



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to the meal and rest period claims would not have occurred, and the instant

settlement of on-duty meal period claims and agreement by Starbucks to amend

its meal and rest period policies would not have occurred.

50. Motion for Class Certification: Until the filing of the motion for

class certification, Plaintiffs’ Counsel had successfully rebuffed Starbucks’

challenges to end the litigation. Plaintiffs’ Counsel conducted considerable

discovery, infra, and moved for class certification in July 2010, with 500

supporting declarations from class members. (Dkt. Nos. 88-89.) Having the

benefit of the Ninth Circuit’s then recent, favorable decision in Dukes v. Wal-

Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010), Plaintiffs’ counsel moved for

certification of the wage statement, meal period, rest period and late final pay

claims.

51. Following full briefing by the parties, a hearing was held in January

2011. Notably, just before the class certification hearing, in December 2010, the

U.S. Supreme Court granted review of Dukes. The parties thereafter submitted

supplemental briefs in February 2011 concerning the class definitions, and the

matter stood submitted. (Dkt. Nos. 130-131.)

52. In June 2011, the U.S. Supreme Court reversed the Ninth Circuit’s

rulings in Dukes, and in doing so, dramatically affected Rule 23 jurisprudence.

The Court thereafter ordered additional briefing on the application of Dukes to

the pending class certification motion, which was completed in October, 2011.

(Dkt. Nos. 151-152.) In November 2011, the Court ruled on the pending motion

to certify, ultimately denying certification of the off-the-clock, rest period, late

final pay and wage statement claims. (Dkt. No. 155.)

53. With respect to the meal period claims, the Court certified the class

to the extent that the alleged meal period violations arose as a result of

Starbucks’ Two-Partner Rule. The Court certified the claims finding that

liability could be determined by reference to the policy itself, which York



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alleged violated Wage Order 4-2001(11)(A) (“Unless the employee is relieved of

all duty during a 30 minute meal period, the meal period shall be considered an

‘on duty’ meal period and counted as time worked. An ‘on duty’ meal period

shall be permitted only when the nature of the work prevents an employee from

being relieved of all duty and when by written agreement between the parties an

on-the-job paid meal period is agreed to.”).

54. Plaintiffs also prevailed in a contested motion to obtain the full class

list for the distribution of the class notice. (Dkt. No. 165.) Plaintiffs, however,

did not succeed in their motion to reconsider the order denying certification of

the other subclasses. (Dkt. No. 192) Starbucks also obtained an order

decertifying the class based on York’s lack of typicality. (Dkt. No. 206.)

However, that order was issued after the parties agreed in principle to settle the

action in mediation. And because Plaintiffs continued to pursue the other non-

certified claims in their PAGA action, they were not precluded from a substantial

recovery in civil penalties.

CASE MANAGEMENT

55. The case management billing is also fairly high due to the number

of day-to-day tasks involved, including noticing and scheduling depositions,

reviewing and propounding discovery, and coordinating massive telephone

campaigns, as well as working with experts. Due to contacts established

between Plaintiffs’ Counsel and class members as a result of the campaign,

Plaintiffs’ Counsel also fielded thousands of calls from class members inquiring

about the case.

TRIAL PREPARATION

56. Along with preparing briefs for the contested motions for summary

adjudication and class certification in the summer and fall of 2012, the parties

also engaged in substantial trial preparation due to the impending December 4,

2012 trial date. In preparing for trial of a class and representative action,



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Plaintiffs’ Counsel:

• Reviewed deposition records and declarations to find reliable and

appropriate witnesses for trial;

• Interviewed prospective witnesses;

• Developed ideas to introduce representative evidence at trial;

• Developed trial strategies and theories;

• Prepared time-intensive pre-trial documents, including jury

instructions;

• Planned for exhibits and evidentiary objections.

Plaintiffs’ Counsel drafted and ultimately filed pre-trial documents pursuant to

Local Rule 16, and was actively preparing trial documents and motions when the

action settled.

MEDIATION AND SETTLEMENT EVALUATION

57. The parties engaged in private mediation on November 9, 2010,

before Hon. Edward A. Panelli, but were unable to reach an agreement.

Nonetheless, the mediation and preceding preparations played a significant role

in the final settlement of this matter. Specifically, the parties, with Justice

Panelli’s assistance, analyzed the claims and evidence, and ultimately, provided

the parties with a framework for continued negotiations. On October 30, 2012,

the parties mediated before David A. Rotman of Gregorio, Haldeman & Rotman.

58. Mr. Rotman was chosen by the parties primarily because of his vast

experience successfully litigating and mediating wage and hour class actions.

The negotiations were at all times arms-length and non-collusive, evidenced by

Mr. Rotman’s participation as the mediator.

59. Notably, the non-collusive nature of the settlement is also evidenced

by the parties’ efforts in resolving the class relief only, leaving the issue of

Plaintiffs’ Counsel’s fees to continuing negotiations and/or a contested fee

motion before the Court. In this case, the parties have no agreement on



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Plaintiffs’ Counsel’s attorneys’ fees, and moreover, any award of fees will not

affect the class relief.

60. In preparation for the mediation, Plaintiffs’ Counsel calculated the

potential exposure of the wage statement and on-duty meal period claims based

on a reasonable assessment of the evidence, especially including the reports and

analyses of the time records by Dr. Robert Fountain (York’s expert) and Woods

(Starbucks’ expert), as well as anecdotal evidence obtained from class members

with whom Plaintiffs’ Counsel had been in contact.

61. Wage Statements: York had obtained a favorable ruling that

Starbucks’ wage statement violated Labor Code section 226(a) because it did not

contain a numeric overtime rate. The Court also found that, because York had

not provided sufficient evidence of an “injury” to obtain statutory damages under

Labor Code section 226(e), the claim could not be certified. Yet, Plaintiffs’

position on appeal was strengthened by the Legislature’s amendments to Labor

Code section 226(e)’s injury requirement. Moreover, York had properly

obtained standing under PAGA, providing her with an opportunity to recover

PAGA damages measured by reference to all aggrieved employees.

62. Based on Fountain’s analysis of a sampling of time records and

Plaintiffs’ Counsel’s interviews with class members, Plaintiffs’ Counsel

determined that approximately 30% of non-exempt employees who had worked

within the one year statute of limitations had at least one pay period in which

overtime was worked.

63. Additionally, Plaintiffs’ Counsel’s assessment of the settlement’s

fairness was influenced by a panoply of factors, among them, the following:

The parties’ respective positions regarding liability under Labor

Code section 226(a) vis-à-vis the developing case law and statutory

amendments, at both trial and appellate levels;

The parties’ respective positions concerning whether representative



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status under PAGA could be obtained without class certification

under Rule 23;

The parties’ respective positions concerning the constitutionality of

PAGA;

The parties’ respective positions concerning the required level of

“injury” under Labor Code section 226(e) and PAGA, especially in

light of the developing law and statutory amendments;

The difficulty of establishing the total number of wage statement

violations given Starbucks’ argument that representative evidence

was impermissible under PAGA;

The Court’s ability to reduce maximum PAGA penalties pursuant to

Labor Code section 2699 “based on the facts and circumstances of

the particular case;” and,

The costs and delay of relief associated with trial and appellate

review.

64. On-Duty Meal Periods: Plaintiffs’ Counsel considered a number of

factors when determining whether the settlement of the on-duty meal period

claims was fair and reasonable. Starbucks had maintained throughout this

litigation that the two-partner situation was rare, having occurred at the bottom

10% of its stores (in terms of staffing), thus reducing Starbucks’ exposure

considerably. Starbucks’ expert Woods testified that his analysis of the time

records for the 150-store sample revealed approximately 15,000 potential

instances of meal periods taken during a two-partner situation. Thus, assuming

that each was a violation (and Starbucks contended that such an analysis was

inconclusive), and assuming that the sample was in fact representative (also in

dispute), there would be no more than 170,000 violations.

65. Settlement: Ultimately, with these considerations and others in

mind, Plaintiffs’ Counsel negotiated a settlement of the wage statement and on-



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duty meal period claims for $3,000,000. Based on my experience litigating

employment related class actions (see infra), and my investigation and

evaluation of the evidence and law, I conclude that the monetary relief

negotiated on behalf of the class is fair, reasonable, and adequate.

66. The parties have also agreed to non-monetary relief, specifically,

that Starbucks will conform its wage statements so that they comply with the

Court’s substantive findings, utilize on-duty meal period agreements, and amend

its California rest break policy to conform with the holding in Brinker Rest.

Corp. v. Superior Court, 53 Cal. 4th 1004 (2012) related to the timing of such

breaks. Based on my experience litigating employment related class actions (see

infra), and my investigation and evaluation of the evidence and law, I conclude

that the non-monetary relief negotiated on behalf of the class is fair, reasonable,

and adequate.

67. The parties were unable to reach an amount to be allocated for

attorneys’ fees, but were able to agree to have the matter resolved through a

contested fee motion. The parties agreed that Plaintiffs may apply the Court for

their lodestar without a multiplier, and Starbucks’ has the option to oppose the

fee request.

68. After the principal terms were agreed to, Plaintiffs began preparing

the motion for preliminary approval of the settlement, as well continuing to

negotiate the exact language of the settlement stipulation. Given the length and

complexity of the case, Plaintiffs expended considerable effort drafting the

motion for preliminary approval. Additional work was needed to fine-tune the

mechanics of an effective claims procedure for claim submissions arising from

the “Two Partner” situation. The Court granted preliminary approval of the

settlement on June 10, 2013. (Dkt. No. 223.)

MOTION FOR ATTORNEYS FEES AND LOCAL RULE 7-3

69. Local Rule 7-3 Requirements Are Met. The parties stipulated to



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resolve the fee dispute through a contest motion, thereby establishing that the

parties could not agree to resolve the issue informally. Nonetheless, Plaintiffs’

Counsel met and conferred with Starbucks’ counsel after the hearing on

preliminary approval of the class settlement on June 10, 2013 in an effort to

resolve the matter informally. The parties discussed, but were unable to agree,

on a procedure to resolve the fee dispute. Starbucks’ counsel agreed that

Plaintiffs should file their motion for attorneys’ fees.

70. Because of the contested nature of this fee motion, Plaintiffs’

Counsel necessarily must devote a number of hours to careful research and

briefing. The hours expended on the fee application is thus reasonable and

justifiable.

71. Plaintiffs’ Counsel reserves the right to supplement their lodestar

with hours expended on the reply memorandum in support of Plaintiffs’ motion

for attorneys fees, which is expected to be substantial.

LODESTAR AND LITIGATION COST ANALYSIS

72. Plaintiffs’ Counsel seeks attorneys’ in the amount of their lodestar,

or $4,220,501. This lodestar figure represents the hours worked by attorneys at

Capstone and Initiative over the nearly five years of litigation.

73. Time records were provided to me by former counsel Initiative. In

reviewing the time records for both firms, my colleagues and I removed time for

any timekeeper who reported working on the case for less than 50 hours. This

was a significant write-off because Plaintiffs’ massive interview campaign—

interviewing thousands of Starbucks’ employees—entailed a significant time

commitment from a number of associates. And due to the dramatic shifts in

controlling law, Plaintiffs’ Counsel also called on attorneys with specific

expertise in the applicable area for research and analysis. In the end, Plaintiffs’

Counsel voluntarily wrote off nearly 10% of the actual total billable amount of

over $4,750,000. The submitted lodestar thus represents a discounted figure.



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74. The chart below4 is a detailed summary indicating the amount of

time spent by each partner and associate who was involved in the litigation, the

current hourly rate for each attorney, and the resulting lodestar, based on our

review of Plaintiffs’ Counsel’s billing records.

Lodestar Summary Lawyer Experience Rate5 Hours Lodestar

Joshua Carlon 5th Year $365.00 145.4 $53,071.00 Kai Hsiao 5th Year $365.00 124.9 $45,588.50

Nicole LeBlanc 5th Year $365.00 111.7 $40,770.50 Enoch Kim 5th Year $395.00 57.8 $22,831.00

Arnab Banerjee 6th Year $420.00 451.2 $189,504.00 Eduardo Santos 6th Year $420.00 557.3 $234,066.00 Megan Momeni 6th Year $420.00 111.9 $46,998.00

Olesya Mikhaylova 6th Year $420.00 205.2 $86,184.00

Dina Glucksman 7th Year $445.00 163.4 $72,713.00 Jennifer Grock 7th Year $445.00 1065.6 $474,192.00

Sara Adibisedeh 7th Year $445.00 85.5 $38,047.50 Nathan Lowery 8th Year $470.00 778.9 $366,083.00

Orlando Arellano 9th Year $490.00 81.6 $39,984.00 Neda Roshanian 11th Year $520.00 159.8 $83,096.00

Ryan Wu 11th Year $550.00 201.1 $110,605.00 Gene Williams 13th Year $590.00 392.9 $231,811.00

4 Although courts applying California law, whether federal or state, do not

require a review of detailed timesheets before approving attorneys’ fees. Upon request, Initiative and Capstone will submit its detailed, contemporaneously-entered timesheets for in camera review. See Winterrowd v. American General Annuity Ins. Co., 556 F.3d 815, 827 (9th Cir. 2009) (“In California, an attorney need not submit contemporaneous time records in order to recover attorneys’ fees.”); Dixon v. State Bar, 39 Cal. 3d 335, 344 (1985) (an attorney need not submit contemporaneous time records to recover attorney fees); Chavez v. Netflix, Inc., 162 Cal. App. 4th 43, 64 (2008) (“detailed timesheets are not required of class counsel to support fee awards in class action cases”)

5 The hourly rates for the attorneys listed above are the 2013 billing rates.



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Lodestar Summary Lawyer Experience Rate5 Hours Lodestar

Matthew Theriault 13th Year $610.00 2539 $1,548,790.00 Robert Byrnes 14th Year $610.00 699.6 $426,756.00

Valerie Kincaid 28th Year $670.00 163.3 $109,411.00

Total 8,096.1 $4,220,501.50

75. As shown above, the hourly rates for the associates above (i.e.,

attorneys with 5-7 years of experience) range from $365 to $445 per hour. These

rates are comparable to those charged by the Los Angeles office of Sheppard

Mullin Richter & Hampton (“Sheppard Mullin”), a prominent law firm with a

significant wage and hour class action defense practice. Sheppard Mullin’s

associate rates range from $275 to $635 an hour. See 2011 Nationwide Sampling

of Law Firm Billing Rates – The National Law Journal, December 19, 2011 (a

true and correct copy of which is attached as Exhibit A). Capstone’s associate

hourly rates are also comparable to those of Manatt, Phelps & Phillips (“Manatt

Phelps”), a well-known law firm based in Los Angeles. Manatt Phelps’ average

associate hourly rate is $464. Id. The average hourly rate for the associates

above is $410. The hourly rates for the senior counsel and partners listed above

(i.e., attorneys with over seven years of experience) range from $470 to $670.

These rates are comparable to those charged by the Los Angeles offices of

Sheppard Mullin ($505 to $860) and Manatt, Phelps ($540 to $850). Id.

76. Counsel’s rates are comparable to those judicially approved for

other plaintiff’s firms. See, e.g., Faigman v. AT&T Mobility LLC, 2011 U.S.

Dist. LEXIS 15825, * 2 (N.D. Cal. Feb. 15, 2011) (approving hourly rates of

$650 an hour for partner services and $500 an hour for associate attorney

services); Richard v. Ameri-Force Mgmt. Servs., Inc. (San Diego Super. Ct.,

August 27, 2010, No. 37-2008-00096019) ($695 to $750 an hour for partners;

$495 an hour for associates); Barrera v. Gamestop Corp. (C.D. Cal. Nov. 29,



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2010, No. CV 09-1399) ($700 an hour for partners; $475 an hour for associates);

and Anderson v. Nextel Retail Stores, LLC (C.D. Cal. June 20, 2010, No. CV 07-

4480) ($655 to $750 an hour for partners; $300 to $515 an hour for associates).

77. Initiative and Capstone’s rates have steadily remained reasonable

and competitive, and have been consistently approved by Los Angeles-based

courts. The Los Angeles County Superior Court approved counsel’s rates in the

matter of Sheldon v. AHMC Monterey Park Hospital LP, Case No. BC440282

(L.A. Super. Ct. Feb. 22, 2013) (“The Court finds that the requested attorneys’

fees award is reasonable for a contingency fee in a class action such as this.

Moreover, Capstone [has] provided sufficient evidence to establish that the

award is appropriate by way of their lodestar/multiplier cross-check,

demonstrating to the Court’s satisfaction that the attorney rates and hours billed

to the litigation were reasonable.”) and Zamora v. Balboa Life & Casualty LLC,

Case No. BC360026 (L.A. Super. Ct. Feb. 13, 2013) (“Plaintiffs’ counsel have

provided sufficient evidence to establish that the award is less than the

reasonable lodestar expended on this case [i.e.] the reasonably hourly rates

multiplied by time spent. . . .”); see also Weisbarth v. Banc West Investment

Services Inc., Case No. BC422202 (L.A. Super. Ct. May 24, 2013); Glover v.

Petco Animal Supplies, Inc., Case No. BC463794 (L.A. Super. Ct. May 7, 2013);

Zelaya v. Destination Long Point, Inc., Case No. BC472286 (L.A. Super. Ct.

May 7, 2013). These rates were approved in other jurisdictions in California as

well. See Silva v. Jo-Ann Stores, Inc., Case No. 30-2011-000526396-CU-OE-

CXC (Orange County Super. Ct. July 18, 2013); Guerrero v. R.R. Donnelley &

Sons Co., Case No. RIC 10005196 (Riverside County Super. Ct. July 16, 2013);

Smith v. Incredible Entertainment, Inc., Case No. SCV0026038 (Placer County

Super. Ct. June 20, 2013).

78. The following chart that summarizes the hours worked by categories

of task based on our review of Plaintiffs’ Counsel’s billing records for this case:



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Categories Hours Case Management 375.6Class Certification 2996.3Court Appearances (Including Prep.) 47.8Depositions 871.8Motion for Attorneys’ Fees 123.6Investigation & Legal Research 346.9Litigation Strategy 163Motion Practice/Legal Research 1747.6Settlement and Mediation 677.5Trial preparation 359.5Discovery 386.5

Total 8096.1

79. In addition to expending professional time, counsel has advanced

$246,511 in costs and expenses. The itemized breakdown of these expenses is

set forth in below and is based on Plaintiffs’ Counsel’s records containing the

cost and expense items.

Costs and Expenses Total Copying, Printing & Scanning $6,122.70 Court Fees, Filings & Service of Process $3,872.78 Court Reporters, Transcripts & Depositions $32,576.46 Delivery & Messenger (UPS, FedEx, messenger) $1,680.87 Expert & Consulting Services $4,760.49 Dr. Robert Fountain $10,966.53 Dr. Jon Krosnick $34,173.88 Legal Research Services (PACER, Lexis, etc.) $10,479.86 Mediation Fees $12,775.00 Postage & Mailings $28,245.58 Skip Trace Search to Update Contact Information $44,187.45 Telephone (Long distance, conference calls) $6,928.53 Travel (Airfare, Mileage, Parking, etc.) $10,987.14 Investigation & Research Services $910.00 Costs of Processing Discovery / Document Management & $18,562.51



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Costs and Expenses Total Production

Case Informational Website Development $81.99 Class Survey and Polling Costs $19,200.00

Total $246,511.77

80. Although most of the expense items are self-evident (e.g., Court

Fees, Court Reporters), or their necessity was explained above (service payments

to Dr. Fountain and Dr. Krosnick), a few items require further elaboration. For

travel costs, the expenditures can be further broken down as follows:

Breakdown of Travel Total Depositions $8,701.13 Hearings $290.25 Mediations $1,932.26 Meetings with Client $63.50

Total $10,987.14

Additionally, for costs of processing discovery and document production, these

expenses consisted of payment to third-party companies to process and analyze

discovery, and to print out volumes of 13,000+ pages of discovery production

produced by Starbucks in CD form. Moreover, given the 160,000+ potential

class size, the management of class member contact information also required

substantial expense. These costs and expenses were necessary to efficiently

prosecute this matter through settlement.

I declare under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct. Executed this 9th day of August

2013, at Los Angeles, California.

Matthew Theriault


Exhibit A

Exhibit A to Declaration of Matthew T. Theriault Page 32


A Nationwide Sampling of Law Firm Billing Rates – The National Law Journal

Page 1

Firm Name Principal or Largest Office

Average full-time

equivalent Attorneys*

Firmwide Average Billing Rate

Firmwide Median Billing Rate

Partner Billing Rate: High

Partner Billing Rate: Low

Partner Billing Rate:

Average


Median

Associate Billing Rate: High

Associate Billing Rate: Low

Associate Billing Rate:

Average


Median Baker, Donelson, Bearman, Caldwell & Berkowitz

Memphis, Tenn.

527 $311 $310 $595 $250 $357 $345 $315 $160 $228 $225

Best Best & Krieger

Riverside, Calif.

195 $358 $360 $575 $275 $417 $420 $375 $205 $265 $240

Briggs and Morgan

Minneapolis 185

$625 $325

$305 $230

Broad and Cassel

Orlando, Fla. 160 $377 $350 $575 $295 $435 $395 $350 $180 $265 $265

Bryan Cave St. Louis 908 $475 $460 $795 $375 $565 $553 $540 $200 $356 $360

Butzel Long Detroit 176 $700 $325 $440 $425 $225 $274

Carlton Fields

Tampa, Fla. 270 $397 $400 $815 $320 $470 $470 $380 $195 $262 $265

Cozen O'Connor

Philadelphia 504 $439 $410 $900 $305 $510 $490 $550 $225 $330 $330

Day Pitney Parsippany, N.J.

324 $447 $450 $960 $380 $537 $525 $470 $235 $317 $315

Dickinson Wright

Detroit 229

$600 $325

$320 $200

Dickstein Shapiro

Washington 335 $560 $550 $1,000 $540 $680 $670 $545 $225 $435 $465

Dinsmore & Shohl

Cincinnati 407 $308 $295 $630 $150 $373 $370 $310 $130 $217 $220

DLA Piper New York 3348 $585 $615 $1,120 $530 $747 $730 $730 $320 $508 $510

Dorsey & Whitney

Minneapolis 567 $426 $405 $810 $295 $526 $525 $465 $190 $294 $275

Duane Morris

Philadelphia 629 $503 $500 $875 $375 $575 $570 $530 $225 $365 $365

Dykema Gossett

Detroit 333 $406 $400 $665 $310 $482 $485 $395 $260 $309 $305

Epstein Becker & Green

New York 300 $428 $425 $850 $350 $519 $500 $550 $195 $341 $325




Page 2


Average full-time







Average


Median




Average


Median Fitzpatrick, Cella, Harper & Scinto

New York 168

$730 $460

$525 $440 $275

$325

Fox Rothschild

Philadelphia 450 $413 $420 $725 $325 $486 $483 $455 $190 $297 $295

Frost Brown Todd

Cincinnati 401 $296 $295 $515 $205 $340 $340 $265 $150 $200 $200

Gardere Wynne Sewell

Dallas 265 $435 $450 $815 $380 $550 $550 $500 $225 $325 $320

Gibbons Newark, N.J. 199 $505 $450 $725 $400 $563 $505 $475 $285 $380 $320

Harris Beach

Rochester, N.Y.

176

$390 $275

$260 $160

Hiscock & Barclay

Syracuse, N.Y. 174 $269 $240 $750 $195 $304 $265 $350 $150 $207 $195

Hodgson Russ

Buffalo, N.Y. 199

$685 $240 $378 $360 $420 $180 $234 $225

Holland & Knight

Washington 910 $445 $455 $895 $300 $530 $520 $495 $175 $295 $290

Hughes Hubbard & Reed

New York 300 $633 $615 $990 $625 $828 $800 $695 $270 $533 $540

Husch Blackwell

St. Louis 551 $341 $340 $850 $225 $395 $390 $425 $175 $226 $210

Jackson Kelly

Charleston, W.Va.

170 $275 $275 $505 $255 $319 $325 $260 $155 $208 $205

Kaye Scholer

New York 425 $661 $665 $1,080 $685 $831 $835 $705 $310 $519 $525

Kelley Drye & Warren

New York 321 $474 $400 $925 $480 $634 $645 $595 $275 $425 $420

Knobbe, Martens, Olson & Bear

Irvine, Calif. 268 $439 $415 $735 $415 $525 $500 $495 $295 $346 $345

Lane Powell Seattle 180 $405 $425 $645 $340 $460 $450 $360 $225 $295 $285




Page 3


Average full-time







Average


Median




Average


Median Lathrop & Gage

Kansas City, Mo.

281 $337 $340 $735 $275 $390 $390 $410 $205 $246 $245

Lewis, Rice & Fingersh

St. Louis 162 $275

$470 $270

$320 $150

Lowenstein Sandler

Roseland, N.J. 249 $478 $480 $895 $435 $613 $595 $660 $250 $400 $390

Manatt, Phelps & Phillips

Los Angeles 322 $602 $620 $850 $540 $676 $670 $550 $215 $464 $500

McElroy, Deutsch, Mulvaney & Carpenter

Morristown, N.J.

272 $245 $275 $575 $295 $350 $375 $325 $185 $250 $235

McKenna Long & Aldridge

Atlanta 425 $472 $455 $800 $405 $562 $540 $510 $215 $374 $375

Michael Best & Friedrich

Milwaukee 208 $321 $310 $650 $245 $413

$310 $205 $241

Miller & Martin

Chattanooga, Tenn.

184 $313 $325 $610 $240 $369 $375 $275 $185 $215 $215

Nelson Mullins Riley & Scarborough

Columbia, S.C. 399 $318 $310 $850 $220 $412 $400 $350 $170 $255 $250

Nexsen Pruet

Columbia, S.C. 178

$550 $235

$265 $170

Patton Boggs

Washington 512 $546 $540 $990 $410 $659 $645 $570 $240 $410 $415

Pepper Hamilton

Philadelphia 459

$825 $380 $557

$460 $235 $344

Perkins Coie Seattle 693 $462 $875 $285 $550 $545 $590 $215 $368

Phelps Dunbar

New Orleans 280 $236 $225 $465 $190 $281 $275 $245 $150 $189 $190

Polsinelli Shughart

Kansas City, Mo.

466

$630 $275

$335 $205

Saul Ewing Philadelphia 220 $431 $450 $750 $350 $502 $490 $495 $245 $326 $300




Page 4


Average full-time







Average


Median




Average


Median Schulte Roth & Zabel

New York 406 $615 $630 $935 $770 $846 $840 $675 $285 $608 $580

Seyfarth Shaw

Chicago 702 $437 $425 $790 $355 $528 $525 $505 $225 $341 $340

Sheppard, Mullin, Richter & Hampton

Los Angeles 465

$860 $505

$635 $275

Shumaker, Loop & Kendrick

Toledo, Ohio 208 $345 $365 $555 $265 $364 $375 $320 $195 $252 $250

Stoel Rives Portland, Ore. 373 $385 $395 $625 $320 $451 $450 $500 $195 $292 $275

Strasburger & Price

Dallas 181 $363 $362 $630 $211 $395 $397 $332 $199 $250 $238

Thompson & Knight

Dallas 319 $520 $520 $875 $440 $594 $585 $460 $250 $358 $350

Thompson Coburn

St. Louis 325

$750 $315

$445 $195

Ulmer & Berne

Cleveland 179 $316

$585 $280 $405

$390 $200 $260

Vedder Price

Chicago 246 $445 $445 $735 $295 $500 $490 $520 $265 $345 $335

Winstead Dallas 265 $406 $680 $365 $477 $410 $215 $301

Winston & Strawn

Chicago 868 $557 $550 $1,130 $580 $713 $700 $600 $350 $434 $413

Wyatt, Tarrant & Combs

Louisville, Ky. 181 $312 $350 $500 $240 $325 $375 $275 $180 $220 $235



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