Case 4:13-cv-02628-JSW Document 97-1 Filed 10/30/15 Page 1 ... · Arnab Banerjee (SBN 252618)...

DECLARATION OF RAUL PEREZ IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF THE CLASS ACTION SETTLEMENT

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

Raul Perez (SBN 174687) [email protected] Melissa Grant (SBN 205633) [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 Plaintiff David Berry and Lead Counsel Norman B. Blumenthal (SBN 68687) [email protected] Kyle R. Nordrehaug (SBN 205975) [email protected] Aparajit Bhowmik (SBN 248066) [email protected] Blumenthal Nordrehaug & Bhowmik 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551-1223 x127 Facsimile: (858) 551-1232 Attorneys for Plaintiff Jasmin Perez and Liaison Counsel

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DAVID BERRY, individually as an aggrieved employee, and on behalf of others similarly situated, Plaintiff, vs. URBAN OUTFITTERS WHOLESALE, INC., a Pennsylvania corporation; and DOES 1 through 100, inclusive, Defendants.

Lead Case No. 13-cv-02628-JSW Case No. 14-cv-00024-JSW Case No. 14-cv-01580-JSW Case No. 14-002601-JSW Assigned to the Hon. Jeffrey S. White DECLARATION OF RAUL PEREZ IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF THE CLASS ACTION SETTLEMENT Date: December 4, 2015 Time: 9:00 a.m. Place: Courtroom 5

Case 4:13-cv-02628-JSW Document 97-1 Filed 10/30/15 of 61


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

JASMIN PEREZ and KYLE MILLER, individuals, on behalf of themselves, on behalf of all persons similarly situated, and as the representative of the State of California, Plaintiff, vs. URBAN OUTFITTERS, INC., a Corporation, and DOES 1 through 50, inclusive, Defendants.

ZAYDA SANTIZO, individually, as an aggrieved employee, and on behalf of others similarly situated, Plaintiff, vs. URBAN OUTFITTERS WHOLESALE, INC., a Pennsylvania corporation; and DOES 1 through 100, inclusive, Defendants.

FLOR KHAN, individually, and on behalf of all others similarly situated, Plaintiff, vs. URBAN OUTFITTERS WEST, LLC, and DOES 1 through 100, inclusive, Defendants.



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

DECLARATION OF RAUL PEREZ

I, Raul Perez, declare as follows:

1. I am an attorney licensed to practice before all courts of the State of California. I am a

Partner at Capstone Law APC (“Capstone”), counsel of record for Plaintiff David Berry in the above-

captioned action. I make this declaration in support of the Motion for Preliminary Approval of Class

Action Settlement. Unless the context indicates otherwise, I have personal knowledge of the facts stated

in this declaration and if called as a witness, I could and would testify competently thereto.

OVERVIEW OF THE LITIGATION

2. This action arises from the consolidation (“Consolidated Action”) of four related cases:

(1) David Berry v. Urban Outfitters Wholesale, Inc., et al. N.D. Cal. Case No. CV 13-02628-JSW (the

“Berry Action”); (2) Jasmin Perez v. Urban Outfitters, Inc., N.D. Cal. Case No. CV 14-00024-JSW (the

“Perez Action”); (3) Zayda Santizo v. Urban Outfitters Wholesale, Inc., N.D. Cal. Case No. CV14-

01580-JSW (the “Santizo Action”); and (4) Khan v. Urban Outfitters West, LLC, N.D. Cal. Case No.

CV14-02601-JSW (the “Khan Action”). In consolidating these actions, the Court appointed Capstone

Law APC as lead counsel and Blumenthal, Nordrehaug & Bhowmik as liaison counsel.

3. The First Amended Consolidated Complaint alleges that Urban violated California’s

labor laws as a result of the following policies and practices:

Urban failed to pay its non-exempt employees the correct overtime rate. Specifically, Urban failed to include non-discretionary bonuses, service awards and other remunerations in an employee’s regular rate calculation as required under California and Federal law. Instead, Urban calculated overtime based on the employee’s hourly rate of pay—and no more.

Urban issued non-complaint wage statements that failed to include the inclusive pay periods, the legal name and address of the employer, and the applicable rates of pay.

Urban’s loss prevention policies required class members to clock-out and undergo mandatory off-the-clock security inspections before leaving the premises for meal periods or rest breaks, or before leaving at the end of a shift, resulting in unpaid hours worked.

Urban did not provide non-exempt employees with a timely first meal break for the first 5

hours worked, or a second meal break for 10 hours worked as required under California Law.

Urban maintained and implemented a facially unlawful rest break policy that did not provide employees with sufficient rest breaks as required under California law.

Urban implemented an illegal “use it or lose it” vacation policy, and treated all unused vest



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

vacation as forfeited at termination, thus failing to pay former employees all vacation pay owed.

Urban failed to reimburse employees for all business expenses that were necessary

incurred as a result of their employment in violation of Labor Code section 2802. Specifically, Urban did not maintain any policy that would reimburse employees for mileage expenses that were consistently incurred.

4. Plaintiffs seeks to represent a class of all persons who were employed at Urban

Outfitters retail stores in California in non-exempt positions at any time during the period from May 1,

2009 to the present, and all persons who were employed at Free People retail stores in California in non-

exempt positions at any time from October 29, 2009 to the present.

5. Plaintiffs have conducted significant investigation and discovery in the Berry Action and

the Consolidated Action. The investigation included the exchange of information pursuant to formal and

informal discovery methods, including document requests and interrogatories. In response to this

discovery, Plaintiffs received, among other things, the following information and evidence with which to

properly evaluate the claims: (1) Class Member demographic information (e.g., information bearing on

the class size); (2) Class Member contact information; (3) operating procedures and policy manuals

regarding, e.g., meal and rest period policies; and (4) a random 20% sample of Class Members’ time and

wage records. Using this information, Plaintiffs’ Counsel were able to determine (or estimate), inter alia,

the average hourly rate of pay for Class Members, the total approximate number of Class Members who

worked during the Class Period and applicable PAGA statute of limitations period, and the total number

of former employees during the Class Period and applicable PAGA statute of limitations period.

6. After Defendant produced Class Member contact information, Plaintiffs’ Counsel

interviewed numerous Class Members to determine the extent and frequency of Labor Code violations

and to learn more about their day-to-day circumstances giving rise to the alleged violations. Plaintiffs’

Counsel also took the depositions of Defendants’ corporate designees pursuant to Rule 30(b)(6) twice in

Philadelphia, Pennsylvania.

7. Overall, Plaintiffs’ Counsel performed an extensive investigation into the claims at issue,

which included: (1) determining the suitability of the putative class representatives, through interviews,

background investigations, and analyses of employment files and related records; (2) researching wage-

and-hour class actions involving similar claims; (3) engaging in the discovery process by (i) propounding



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

interrogatories and document requests, (ii) responding to Defendants’ interrogatories and document

requests, and (iii) reviewing documents produced by Defendants and analyzing a representative sample

of time and payroll records; (4) interviewing putative Class Members to acquire information about

potential claims, identify additional witnesses, obtain documents, solicit testimony in support of

Plaintiffs’ then upcoming Motion for Class Certification; (5) obtaining and analyzing Defendants’ wage-

and-hour policies and procedures; (6) deposing Defendants’ 30(b)(6) witnesses; (7) researching the latest

case law developments bearing on the theories of liability; (8) researching settlements in similar cases;

(9) conducting discounted valuation analyses of claims; (10) participating in three mandatory settlement

conferences and preparing related memoranda; (11) negotiating the terms of this Settlement; (12)

finalizing the Joint Stipulation of Class Action Settlement and Release; and (13) and drafting preliminary

and final approval papers. The sizeable document and data exchanges allowed Plaintiffs’ Counsel to

assess the strengths and weaknesses of the claims against Defendants and the benefits of the proposed

Settlement.

8. The Parties participated in three separate mandatory settlement conferences before the

Hon. Nandor J. Vadas . At the third mandatory settlement conference, Judge Vadas recommended the

principal terms of a class action settlement, which the Parties eventually accepted. The complete and

final terms of the settlement are now set forth in the Joint Stipulation of Class Action Settlement and

Release (attached as Exhibit 1). At all times, the Parties’ negotiations were adversarial and non-

collusive. The Settlement therefore constitutes a fair, adequate, and reasonable compromise of the

claims at issue.

QUALIFICATIONS AND EXPERIENCE

9. I received both my undergraduate degree and my law degree from Harvard University

and was admitted to the California Bar in December 1994. I have more than 20 years of litigation

experience representing clients in complex litigation in state and federal courts, and since 2011, I have

focused exclusively on wage and hour and consumer class actions.

10. Recently, I and other Capstone attorneys were honored with the California Lawyer’s

prestigious “Attorney of the Year” award in the employment law practice area for our work in the

landmark case of Iskanian v. CLS Transportation Los Angeles, 59 Cal. 4th 348 (2014) (holding that, as a



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

matter of state law, an employment agreement that compels a waiver of the employee’s statutory right to

bring representative claims under the PAGA is contrary to public policy and unenforceable).

11. Capstone was founded in 2012 and prosecutes class actions and other complex litigation

on behalf of employees, consumers, and members of the general public. Capstone employs seasoned

class action attorneys who, throughout their respective careers, have successfully certified (by contested

motion) numerous class actions, and have also been appointed Lead or Interim Lead Counsel in several

class actions, including:

a. Lopes v. Kohl’s Department Stores, Inc., Case No. RG08380189 (Alameda

County Super. Ct.) (Capstone attorneys, including myself, Melissa Grant and

other co-counsel certified a class of approximately 120,000 non-exempt

employees for wage and hour violations);

b. Tameifuna v. Sunrise Senior Living Managements, Inc., Case No. 13-CV-06294

(JAK) (C.D. Cal.) (Capstone attorneys, including myself, Ms. Grant, and other

co-counsel certified a class of over 10,000 hourly-paid employees for wage and

hour violations);

c. Trager v. Bebe Stores, Inc., Case No. CIVRS1011823 (San Bernardino County

Super. Ct.) (certified class of several thousand non-exempt employees for wage

and hour violations);

d. Berry v. Urban Outfitters Wholesale, Inc., Case No. 4:13-cv-02628-JSW (N.D.

Cal.) (Capstone attorneys, including myself, were appointed lead counsel in a

class action involving over 10,000 non-exempt employees);

e. Aldo Us Wage And Hour Cases, Case No. JCCP 4581 (Orange County Super.

Ct.) (certified class of over 6,000 non-exempt employees for wage and hour

violations);

f. Romo v. GMRI, Inc. d/b/a Olive Garden, Case No. EDCV-12-0715-JLQ (C.D.

Cal.) (certified class of over 10,000 non-exempt employees for rest period

violations);

g. Cook v. United Insurance Co. of America, Case No. MSC10-00425 (Contra



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

Costa County Super. Ct.) (certification of a class of over 600 sales

representatives based on United Insurance’s alleged failure to reimburse for

business related expenses);

h. In Re: AutoZone, Inc., Wage and Hour Employment Practices Litigation, Case

No. 3:10-md-02159-CRB, 2012 U.S. Dist. LEXIS 181597, *16-*26 (N.D. Cal.

Dec. 21, 2012) (certified class of over 30,000 former and current employees);

i. In re: Taco Bell Wage And Hour, Case No. CV 01314-LJO-DLB, 2013 U.S.

Dist. LEXIS 380 (E.D. Cal. Jan. 2, 2013) (certified class of over 37,000 former

and current employees);

j. Rodriguez v. Swissport North America, Case No. Case No. BC441173 (L.A.

County Super. Ct.) (certified class of over 4600 non-exempt employees alleging

issuance of wage statements that violate Labor Code section 226(a));

k. McKinney v. U.S. Telepacific Corp., Case No. BC497288 (L.A. County Super.

Ct.) (Capstone along with co-counsel certified a California class of employees

who were allegedly misclassified as exempt).

l. Chambless v. Islands Restaurants, L.P., Case No. BC458426 (L.A. County

Super. Ct.) (certified class of over 16,000 employees for the failure to provide

rest periods).

12. Similarly, since Capstone was launched in 2012, my colleagues and I have been directly

involved in settlements which were finally approved with Capstone named as Class Counsel. These

settlements totaled tens of millions of dollars on behalf of hundreds of thousands of class members, and

included the following cases:

a. Hightower et al v. Washington Mutual Bank, No. 2:11-cv-01802-PSG-PLA

(N.D. Cal.) (I, along with co-counsel, secured a gross settlement of $12 million

on behalf of approximately 150,000 personal bankers, tellers, sales associates,

and assistant branch manager trainees for wage and hour violations);

b. Hicks v. Toys ‘R’ Us-Delaware, Inc., Case No. 2:13-cv-01302-DSF-JCG (C.D.

Cal) (I secured a multi-million dollar wage and hour settlement on behalf of



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

over 37,000 class members, Capstone was appointed lead counsel, and the

Central District Court awarded a fee of 30% of the fund after no objections filed

at final approval);

c. Monjazeb v. Neiman Marcus, Case No. CGC-10-502877 (San Francisco

County Super. Ct.) (I secured a multi-million settlement on behalf of over 6,000

non-exempt employees, received final approval after no objections were filed in

response to the notice of settlement, and the Superior Court awarded a fee of

33.3% of the fund);

d. Thompson v. Smart & Final, Case No. BC497198 (L.A. County Super. Ct.) (I

negotiated a multi-million settlement on behalf of over 16,000 non-exempt

employees, received final approval after no objections filed, and the Superior

Court awarded a fee of 33.3% of the fund);

e. Bernal v. DaVita Inc., Case No. CV-12-03255-PSG (N.D. Cal.) (with co-

counsel, I helped negotiate a multi-million settlement of wage and hour claims

on behalf of thousands of non-exempt employees, and the Northern District

Court awarded a fee of 33.3% of the fund after no objections were filed at final

approval);

f. Guerrero v. R.R. Donnelley & Sons Co., Case No. RIC 10005196 (Riverside

County Super. Ct.) (I negotiated a seven-figure settlement of wage and hour

claims, and the Superior Court awarded a fee of 33.3% of the fund after no

objections were filed at final approval);

g. Zelaya v. Destination Long Point, Case No. BC472286 (L.A. County Super.

Ct.) (I negotiated a seven-figure settlement of wage and hour claims, and the

Superior Court awarded a fee of 33.3% of the fund after no objections were filed

at final approval);

h. Bender v. Sears Home Improvement Products, Inc., Case No. S-1500-CV-

273221 LHB (Kern County Super. Ct.) (I negotiated a settlement of wage and

hour claims, including the failure to reimburse for business expenses, and the



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

Superior Court awarded a fee of 33.3% of the fund after no objections were filed

at final approval);

i. Coleman v. Estes Express, Case No. BC429042 (L.A. County Super. Ct.) (I

negotiated a seven-figure settlement of wage and hour claims, including the

failure to provide compliant wage statements, and the Superior Court granted

final approval after no objections filed, awarding a fee of 33.3% of the fund);

j. Johnson v. Lane Bryant, Inc., Case No. BC478260 (L.A. County Super. Ct.) (I

negotiated a seven-figure settlement of wage and hour claims on behalf of

thousands of class members, and the Superior Court granted final approval after

no objections filed, awarding a fee of 33.3% of the fund);

k. Hoagland v. Brooks Brothers Group, Inc., Case No. BC511534 (L.A. County

Super. Ct.) (I negotiated a seven-figure non-reversionary settlement of wage and

hour claims on behalf of over 850 current and former employees);

l. Sheldon v. AHMC Monterey Park Hospital LP, Case No. BC440282 (L.A.

County Super. Ct.) (I helped obtain approval of a multi-million settlement of

wage and hour claims, and the Superior Court granted final approval after no

objections filed, awarding a fee of 33.3% of the fund);

m. Shaw v. American Automobile Association of Northern California, Nevada &

Utah Insurance Exchange, Case No. RG11595753 (Alameda County Super.

Ct.) (I negotiated settlement of wage and hour claims, and the Superior Court

granted final approval after no objections filed, awarding a fee of 33.3% of the

fund);

n. Garcia v. Vallarta Food Enterprises Inc., Case No. BC490630 (L.A. County

Super. Ct.) (I negotiated seven-figure settlement of wage and hour claims, and

Superior Court granted final approval after no objections filed, awarding a fee of

33.3% of the fund);

o. Stevenson v. Fossil Inc., Case No. RIC1214582 (Riverside County Super. Ct.) (I

negotiated seven-figure settlement of wage and hour claims, and the Superior



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

Court granted final approval after no objections filed, awarding a fee of 33.3%

of the fund);

p. Steele v. Zumiez, Inc., Case No. CGC-13-528786 (San Francisco County Super.

Ct.) (I secured a seven-figure settlement of wage and hour claims, and Superior

Court granted final approval after no objections filed, awarding a fee of 25% of

the fund plus a $60,000 premium);

q. Morasco v. InterAct PMTI, Inc., Case No. 56-2013-00439020-CU-OE-VTA

(Ventura County Super. Ct.) (I negotiated a settlement of wage and hour claims,

including the failure to pay minimum wages for all time spent under the

employer’s control, resulting in a recovery of approximately $11,500 per class

member. The Superior Court granted final approval after no objections filed,

awarding a fee of 33.3% of the fund);

r. Hammonds v. Hot Topic, Inc., Case No. 34-2013-00141893-CU-OE-GDS

(Sacramento County Super. Ct.) (I negotiated a settlement of wage and hour

claims, and the Superior Court granted final approval after no objections filed,

awarding a fee of 33.3% of the fund);

s. Cintron v. Automobile Club of Southern California, Case No. 07CC01421

(Orange County Super. Ct.) (I, along with co-counsel negotiated a seven-figure

settlement of certified wage and hour claims after trial had already commenced,

and the Superior Court granted final approval after no objections filed, awarding

$1,925,000 million in fees and costs to class counsel);

t. Hodge v. Zale, Case No. CIVVS1301632 (San Bernardino County Super. Ct.) (I

negotiated a seven figure settlement of wage and hour claims, and the Superior

Court granted final approval after no objections filed, awarding a fee of 33.3%

of the fund);

u. King v. Burke Williams, Case No. BC467906 (L.A. County Super. Ct.) (I

negotiated a settlement of wage and hour claims, and the Superior Court granted

final approval after no objections filed, awarding a fee of 33.3% of the fund);



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

v. Levy v. Keolis Transit America, Inc., Case No. BC535715 (L.A. County Super.

Ct.) (I negotiated a settlement of wage and hour claims, and the Superior Court


fund);

w. Reyes v. Jo-Ann Stores, Case No. 30-2012-00560070-CU-OE-CXC (Orange

County Super. Ct.) (I negotiated a settlement of wage and hour claims, and the

Superior Court granted final approval after no objections filed, awarding a fee of

33.3% of the fund);

x. Glover v. Petco Animal Supplies, Inc., Case No. BC463794 (L.A. County

Super. Ct.) (I negotiated a seven-figure settlement of wage and hour claims,

including failure to pay wages at the proper regular rate, and the Superior Court


fund);

y. Negrete v. PetSmart, Inc., Case No. CV 13-cv-04300-EJD (N.D. Cal.), related

to Moore et al. v. PetSmart, Inc., Case No. CV-12-03255-PSG (N.D. Cal.)

($10,000,000 gross settlement. Capstone appointed Class Counsel for the Pet

Stylist Settlement Class. Final approval was granted on August 4, 2015);

z. Valdez v. Kevin Jewelers, Case No. BC512253 (L.A. County Super. Ct.)

(settlement on behalf of sales associates for wage and hour violations);

aa. Zamora v. Balboa Life & Casualty LLC, Case No. BC360026 (L.A. County

Super. Ct.) (multi-million settlement of wage and hour claims, including the

failure to pay overtime);

bb. Weisbarth v. Banc West Investment Services Inc., Case No. BC422202 (L.A.

County Super. Ct.) (settlement of overtime, meal and rest break claims based on

misclassification);

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

Super. Ct.) (settlement of wage and hour claims, including the failure to

reimburse for necessary business expenses);



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

dd. Silva v. Jo-Ann Stores, Inc., Case No. 30-2011-00526396-CU-OE-CXC

(Orange County Super. Ct.) (settlement of wage and hour claims, including the

failure to pay meal and rest period premiums);

ee. Rodriguez v. Billabong USA Holding Pty Ltd., Case No. 30-2012-00549355-

CU-OE-CXC (Orange County Super. Ct.) (settlement of wage and hour claims,

including the failure to pay meal and rest period premiums);

ff. Hernandez v. Towne Park, Ltd., Case No. BC479653 (L.A. County Super. Ct.)

(settlement of wage and hour claims, including the failure to pay meal and rest

period premiums);

gg. Soto v. CVS, Case No. BC468650 (L.A. County Super. Ct.) (settlement of wage

and hour claims, including the failure to pay meal and rest period premiums);

hh. Forever 21 Wage and Hour Cases, Case No. JCCP4745 (San Diego County

Super. Ct.) (settlement of wage and hour claims, including the failure to pay

meal and rest period premiums);

ii. Islas v. Carniceria Vallarta Inc., Case No. BC477531 (L.A. County Super. Ct.)


period premiums);

jj. Jones v. ADT Security Services, Inc., Case No. BC466697 (L.A. County Super.

Ct.) (settlement of wage and hour claims, including the failure to pay meal and

rest period premiums);

kk. Marquez v. Shakey’s USA, Inc., Case No. BC424205 (L.A. County Super. Ct.)


period premiums);

ll. Washington v. Host International, Inc., Case No. CIVRS1205929 (San

Bernardino County Super. Ct.) (settlement of wage and hour claims, including

the failure to provide meal and rest periods); and

mm. Morales v. Daniel’s Jewelers, Case No. BC513353 (L.A. County Super. Ct.)

(settlement on behalf of class of allegedly misclassified Store Managers).



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

13. Numerous courts throughout the State of California have explicitly recognized

Capstone’s professionalism, experience, and fitness to litigate major complex class litigation.

Endorsements include:

a. King v. Burke Williams, Inc., Case No. BC467906 (L.A. County Super. Ct. Mar.

4, 2015) (“The Court finds that the attorneys at Capstone Law APC have the

requisite qualifications, experience, and skill to protect and advance the interests

of the Class.”)

b. Morales v. Daniel’s Jewelers, Case No. BC513353 (L.A. County Super. Ct.

Feb. 4, 2015) (“The Court [finds] that Capstone Law APC satisfies the

professional and ethical obligations attendant to the position of Class Counsel,

and hereby appoints Capstone Law APC counsel for the Settlement Class.”)

c. Stevenson v. Fossil, Case No. RIC 1214582 (Riverside County Super. Ct. Nov.

18, 2014) (“The Court finds that the attorneys at Capstone Law APC have the

requisite qualifications, experience, and skill to protect and advance the interests

of the Class.”)

d. Zamora v. Balboa Life & Casualty LLC, Case No. BC360026 (L.A. County

Super. Ct. Mar. 7, 2013) (Order Granting Final Approval of Class Action

Settlement: “Capstone Law APC and Goldstein, Borgen, Dardarian & Ho are

experienced in matters of this nature and the Court hereby appoints Capstone

Law APC and Goldstein, Borgen, Dardarian & Ho as Class Counsel”);

e. Glover v. Petco Animal Supplies, Inc., Case No. BC463794 (L.A. County

Super. Ct. May 7, 2013) (Order Granting Final Approval of Class Action

Settlement: “Based upon the evidence submitted, including a summary of class

actions that its attorneys have certified and/or settled, and in consideration of the

manner in which counsel have prosecuted and settled the instant action, the

Court finds that the attorneys at Capstone Law APC have the requisite

knowledge, experience, and skill to advance the interests of the Settlement

Class. The Court therefore confirms its original finding that Capstone Law APC



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

satisfies the professional and ethical obligations attendant to the position of Class

Counsel, and hereby appoints Capstone Law APC counsel for the Settlement

Class.”);

f. York v. Starbucks Corp., Case No. CV 08-7919 GAF (PJWx) (C.D. Cal. June

10, 2013) (Order Granting Preliminary Approval of Class Action Settlement: “In

the Ninth Circuit, courts look for any conflicts of interest that the representative

plaintiff and his or her counsel might have with the other class members, and

evaluate whether the representative plaintiff will prosecute the action vigorously

on behalf of the class. There is no standard to assess vigor, but considerations

include competency of counsel and, in the context of a settlement-only class, an

assessment of the rationale for not pursuing further litigation. Here, Plaintiffs’

counsel, Capstone Law APC, has regularly engaged in major complex litigation

and has extensive experience in consumer class action lawsuits that are similar

in size, scope, and complexity to the present case . . . The Court therefore

concludes that the adequacy of representation requirement of Rule 23(a)(4) is

satisfied.”) (internal quotations and citations omitted); and

g. Guerrero v. R.R. Donnelley & Sons Co., Case No. RIC 10005196 (Riverside

County Super. Ct. July 16, 2013) (Order Granting Final Approval of Class

Action Settlement: “[T]he Court finds that the attorneys at Capstone Law APC

have the . . . knowledge, experience, and skill to advance the interests of the

Settlement Class.”).

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

foregoing is true and correct. Executed this 30th day of October, 2015, at Los Angeles, California.

Raul Perez


Exhibit 1

Berry v. Urban Outfitters Wholesale, Inc. Exhibit 1 to Declaration of Raul Perez Page 13


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

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DAVID BERRY, individually as an aggrieved employee, and on oehalf of otliers similarly situated,

Plaintiff, vs.

URBAN OUTFITTERS WHOLESALE, INC., a Pennsylvania ~orpo~ation; and DOES 1 through 100, mciusiVe,

Defendants.

JASMIN PEREZ and KYLE MILLER, individuals, on behalf of themselves, on behalf of all persons similarly situated, and as the representative of the State of California,

Plaintiff, vs.

URBAN OUTFITTERS, INC., a ~OTIJ~ration, and DOES 1 through 50, mclus1ve,

Defendants.

Lead Case No. 13-cv-02628-JSW Case No. 14-cv-00024-JSW Case No. 14-cv-01580-JSW Case No. 14-002601-JSW

JOINT STIPULATION OF CLASS ACTION SETTLEMENT AND RELEASE

JOINT STIPULATION OF CLASS ACTION SETTLEMENT AND RELEASE Berry v. Urban Outfitters Wholesale, Inc. Exhibit 1 to Declaration of Raul Perez Page 14


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

ZA YDA SANTIZO, individually as an aggriev~d ~mployee, and on behaff of otliers smularly situated,

Plaintiff, vs.

URBAN OUTFITTERS WHOLESALE, INC., a Pennsylvania ~orpo~ation; and DOES 1 through 100, mcius1ve,

Defendants.

FLOR KHAN individually, and on behalf of all others similarly situated,

Plaintiff,

vs.

URBAN OUTFITTERS WEST, LLC, and DOES 1 through 100, inclusive,

Defendants.



1 JOINT STIPULATION OF CLASS ACTION SETTLEMENT AND RELEASE

2 This Joint Stipulation of Class Action Settlement and Release ("Settlement" or

3 "Settlement Agreement") is made and entered into by and between Plaintiffs David

4 Berry, Flor Khan, Kyle Miller, Jasmin Perez, and Zayda Santizo ("Plaintiffs" or "Class

5 Representatives"), as individuals and on behalf of all others similarly situated, and

6 Defendants Urban Outfitters Wholesale, Inc., Urban Outfitters, Inc., and Urban Outfitters

7 West, LLC (collectively "Defendants") (collectively with Plaintiffs, the "Parties").

8 DEFINITIONS

9 The following definitions are applicable to this Settlement Agreement. Definitions

10 contained elsewhere in this Settlement Agreement will also be effective:

11 1. "Actions" meansBerryv. Urban Outfitters Wholesale, Inc., No. 4:13-cv-

12 02628-JSW (N.D. Cal.); Perez v. Urban Outfitters, Inc., No. 4: 14-cv-00024-JSW (N.D.

13 Cal.); Santizo v. Urban Outfitters Wholesale, Inc., No. 4:14-cv-01580-JSW (N.D. Cal.);

14 Khan v. Urban Outfitters West, Inc., No. 4:14-cv-02601-JSW (N.D. Cal.).

15 2. "Attorneys' Fees and Costs" means attorneys' fees agreed upon by the

16 Parties and approved by the Court for Plaintiffs' Counsel's litigation and resolution of the

17 Actions, as well as all costs incurred and to be incurred by Plaintiffs' Counsel in the

18 Actions and approved by the Court, including but not limited to, costs associated with

19 documenting the Settlement, providing any notices required as part of the Settlement or

20 Court order, securing the Court's approval of the Settlement, administering the

21 Settlement, obtaining entry of the Judgment/Dismissal terminating the Actions, and

22 expenses for any experts. Plaintiffs' Counsel will request attorneys' fees not in excess of

23 one-third (113) of the Class Settlement Amount, or One Million Six Hundred Sixty Six

24 Thousand Six Hundred Sixty Seven Dollars ($1,666,667.00). The Attorneys' Fees and

25 Costs will also mean and include the additional reimbursement of any actual costs and

26 expenses associated with Plaintiffs' Counsel's litigation and settlement of the Actions, up

27 to Fifty Thousand Dollars ($50,000.00), subject to the Court's approval. Defendants have

28 agreed not to oppose Plaintiffs' Counsel's request for fees and reimbursement of costs as

Page 1



1 set forth above. A ruling by the Court to award Plaintiffs' Counsel amounts less than the

2 amounts stated above shall not be a basis for Plaintiffs or Plaintiffs' Counsel to void this

3 Settlement Agreement.

4 3. "Class Counsel" means Capstone Law APC; Blumenthal Nordrehaug &

5 Bhowmik; and the Law Offices of Ari Moss.

6 4. "Class List" means a complete list of all Class Members that Defendants

7 will diligently and in good faith compile from their records and provide to the Settlement

8 Administrator and to Class Counsel within twenty (20) calendar days after Preliminary

9 Approval of this Settlement. The Class List will be formatted in Microsoft Office Excel,

10 encrypted, and password protected and will include each Class Member's full name; last

11 known mailing address and telephone number; Social Security number; number of

12 calendar days during which the Class Member worked as an hourly employee; and the

13 respective number of Workweeks that each Class Member worked during the Class

14 Period. At no time during the Settlement process will any Class Member's address,

15 Social Security number, or telephone number be filed with the Court, except under seal as

16 may be ordered.

17 5. "Class Member(s)" or "Settlement Class" means all persons who are or

18 were employed at Urban Outfitters retail stores in California in non-exempt positions at

19 any time during the period from May 1, 2009 to the date on which the Court grants

20 Preliminary Approval ("Urban Employees"); and all persons who were employed at Free

21 People retail stores in California in non-exempt positions at any time from October 29,

22 2009 to the date on which the Court grants Preliminary Approval ("Free People

23 Employees").

24 6. "Class Period" means the period from May 1, 2009 to the date on which

25 the Court grants Preliminary Approval for Urban Employees; and October 29, 2009 to

26 the date on which the Court grants Preliminary Approval for Free People Employees.

27 7. "Class Representative Enhancement Payments" means the amounts to be

28 paid to Plaintiffs in recognition of their effort and work in prosecuting the Actions on

Page2



1 behalf of Class Members, and for their general release of claims. Subject to the Court

2 granting fmal approval of this Settlement Agreement and subject to the exhaustion of any

3 and all appeals, Plarntiffs will request Court approval of Class Representative

4 Enhancement Payments of: (i) Fifteen Thousand Dollars ($15,000.00) to David Berry;

5 and (ii) Ten Thousand Dollars ($10,000.00), each, to Flor Khan, Kyle Miller, Jasmin

6 Perez, and Zayda Santizo. A ruling by the Court to award Plaintiffs amounts less than the

7 amounts stated above shall not be a basis for Plaintiffs to void this Settlement Agreement.

8 8. "Class Settlement Amount" means the Class Settlement Amount of Five

9 Million Dollars ($5,000,000.00), to be paid by Defendants in full satisfaction of all claims

10 arising from the Actions, which includes all Individual Settlement Payments to

11 Participating Class Members; the Labor and Workforce Development Agency Payment;

12 the Class Representative Enhancement Payments to Plaintiffs; Attorneys' Fees and Costs

13 to Plaintiffs' Counsel; Settlement Administration Costs to the Settlement Administrator;

14 and the employer's share of payroll tax requirements, including any employer FICA,

15 FUTA, and SDI contributions. This Class Settlement Amount has been agreed to by

16 Plaintiffs and Defendants based on the aggregation of the agreed-upon settlement value of

17 individual claims. In no event will Defendants be responsible for paying the employer's

18 share of payroll taxes separately from, or in addition to, the Class Settlement Amount or

19 be liable for more than the Class Settlement Amount except as otherwise explicitly set

20 forth herein. There will be no reversion of the Class Settlement Amount to Defendants.

21 9. "Court" means the United States District Court, Northern District of

22 California, or any other court exercising jurisdiction of the Settlement.

23 10. "Defendants" means Urban Outfitters Wholesale, Inc., Urban Outfitters,

24 Inc., and Urban Outfitters West, LLC.

25 11. "Effective Date" means the date on which the Judgment becomes a Final

26 Judgment.

27 12. "Final Approval/Settlement Fairness Hearing" means the hearing at which

28 the Court considers whether to approve the Settlement and to enter the fmal judgment.

Page3



1 13. "Final Judgment" means the latest of(a) the date of final affirmance on an

2 appeal of the Judgment; (b) the date of fmal dismissal with prejudice of the last pending

3 appeal from the Judgment; or (c) if no appeal is filed, the expiration date of the time for

4 the filing or noticing of any form of valid appeal from the Judgment (i.e., 30 days after the

5 entry of judgment, pursuant to Federal Rule of Appellate Procedure 4(a)(1 )(A)). The

6 Parties intend that the fmal approval order will encompass an order entering Judgment.

7 14. "Individual Settlement Payment" means each Participating Class Member's

8 respective share of the Net Settlement Amount, less all employee and all employer

9 portions of any payroll tax requirements and any other applicable payroll deductions

10 required by law.

11 15. "Judgment" means the judgment to be rendered by the Court pursuant to

12 this Settlement Agreement.

13 16. "Lead Class Counsel" means Capstone Law APC.

14 17. "Liaison Counsel" means Blumenthal Nordrehaug & Bhowmik.

15 18. "Labor and Workforce Development Agency Payment" means the payment

16 ofThirty Seven Thousand Five Hundred Dollars ($37,500.00) to the California Labor

17 and Workforce Development Agency.

18 19. "Net Settlement Amount" means the portion of the Class Settlement

19 Amount remaining after deducting the Attorneys' Fees and Costs, Settlement

20 Administration Costs, Class Representative Enhancement Payments, and Labor and

21 Workforce Development Agency Payment. The Net Settlement Amount will be

22 distributed to Participating Class Members. There will be no reversion of the Net

23 Settlement Amount to Defendants.

24 20. "Notice of Objection" means a Class Member's valid and timely written

25 objection to the Settlement Agreement. For the Notice of Objection to be valid, it must

26 include: (i) the objector's full name, date ofbirth, signature, address, telephone number,

27 and the approximate dates of employment at Urban Outfitters and/or Free People stores in

28 California; (ii) a written statement of all grounds for the objection accompanied by any

Page4

JOINT STIPULATION OF CLASS ACTION SETILEMENT AND RELEASE Berry v. Urban Outfitters Wholesale, Inc. Exhibit 1 to Declaration of Raul Perez Page 19


1 legal support for such objection; (iii) copies of any papers, briefs, or other documents

2 upon which the objection is based; and (iv) a statement describing whether the objector

3 intends to appear at the Final ApprovaVSettlement Fairness Hearing. Any Class Member

4 who does not file a timely written objection to the Settlement, or who fails to otherwise

5 comply with the specific and technical requirements of this section, will be foreclosed

6 from objecting to the Settlement and from seeking any adjudication or review of the

7 Settlement, by appeal or otherwise. Class Members who file Notices of Objection must

8 make themselves available for deposition.

9 21. "Notice Packet" means the Notice of Class Action Settlement and Mailing

10 Envelope, substantially in the forms attached as Exhibits A and B.

11 22. "Parties" means Plaintiffs and Defendants collectively.

12 23. "Participating Class Members" means all Class Members who do not

13 submit timely and valid Requests for Exclusion.

14 24. "Plaintiffs" or "Class Representatives" means David Berry, Flor Khan,

15 Kyle Miller, Jasmin Perez, and Zayda Santizo.

16 25. "Plaintiffs' Counsel" means Capstone Law APC; Blumenthal Nordrehaug

17 & Bhowmik; the Law Offices of Ari Moss; and Scott Cole & Associates.

18 26. "Preliminary Approval" means the Court order granting preliminary

19 approval of the Settlement Agreement.

20 27. "Released Claims" means all wage and hour claims, rights, demands,

21 liabilities, and causes of action of every nature and description, which occurred during the

22 period from May 1, 2009 to the date on which the Court grants Preliminary Approval (for

23 Urban Employees) and from October 29, 2009 to the date on which the Court grants

24 Preliminary Approval (for Free People Employees), arising from or related to the facts or

25 claims litigated in the Actions against Defendants, whether known or unknown,

26 contingent or accrued, including without limitation statutory, constitutional, contractual,

27 or common law claims for wages, damages, unpaid costs, penalties, liquidated damages,

28 punitive damages, interest, attorneys' fees, litigation costs, restitution, equitable relief, or

PageS



1 any other relief, including claims based on the following categories of allegations: (i) all

2 claims for unpaid overtime; (ii) all claims for meal and rest break violations; (iii) all

3 claims for unpaid minimum wages; (iv) all claims for the failure to timely pay wages

4 upon termination; (v) all claims for the failure to timely pay wages during employment;

5 (vi) all claims for wage statement violations; (vii) all claims for unpaid vacation pay; (viii)

6 all claims asserted through California Business & Professions Code § § 17200, et seq.,

7 and/or California Labor Code §§ 2698, et seq. based on the preceding claims; (ix) all

8 claims under the provisions of the California Labor Code and/or arising under the Wage

9 Orders adopted by the California Industrial Welfare Commission that arise from or relate

10 to the factual allegations alleged in the Actions; and (x) all claims that were or could have

11 been asserted in the Actions that arise out of the same nucleus of operative facts (see

12 International Union of Operating Engineers-Employers Canst. Industry Pension, Welfare

13 and Training Trust Funds v. Karr, 994 F.2d 1426, 1430 (9th Cir. 1993) ("res judicata bars

14 not only all claims that were actually litigated, but also all claims that 'could have been

15 asserted' in the prior action"; noting that whether the claim "arises out of the same

16 transactional nucleus of facts [is] the criteria most stressed in our decisions") (emphasis

17 added) (citation and internal quotation marks omitted)). Except as to Plaintiffs, the

18 release expressly excludes claims that arise outside of the Class Period and unrelated

19 claims, including but not limited to, claims for unemployment, disability, Workers'

20 Compensation, retaliation, and discrimination.

21 28. "Released Parties" means Defendants and their respective successors and

22 predecessors in interest, subsidiaries, affiliates, trusts, brother-sister or otherwise related

23 companies, and parents; all of their past or present officers, directors, shareholders,

24 employees, agents, principals, heirs, representatives, accountants, auditors, consultants,

25 partners, joint venturers, trustees, insurers, and reinsurers; and any attorney or law firm

26 representing Defendants or the other Released Parties with regard to Plaintiffs' asserted

27 claims against Defendants.

28 29. "Request for Exclusion" means a timely letter submitted by a Class

Page6



1 Member indicating a request to be excluded from the Settlement. The Request for

2 Exclusion must: (i) set forth the full name, address, telephone number, and last four digits

3 of the Social Security number of the Class Member requesting exclusion; (ii) be signed

4 by the Class Member; (iii) be returned to the Settlement Administrator; (iv) state "I wish

5 to opt-out from this Settlement"; and (v) be faxed or postmarked on or before the

6 Response Deadline.

7 30. "Response Deadline" means the deadline by which Class Members must

8 postmark or fax to the Settlement Administrator Requests for Exclusion or file and serve

9 Notices of Objection to the Settlement. The Response Deadline will be thirty (30)

10 calendar days from the initial mailing of the Notice Packet by the Settlement

11 Administrator, unless the 30th day falls on a Sunday or Federal holiday, in which case the

12 Response Deadline will be extended to the next day on which the U.S. Postal Service is

13 open.

14 31. "Settlement Administration Costs" means the costs payable from the Class

15 Settlement Amount to the Settlement Administrator for administering this Settlement,

16 including, but not limited to, printing, distributing, and tracking documents for this

17 Settlement; tax reporting; distributing the Class Settlement Amount; and providing

18 necessary reports and declarations, as requested by the Parties. The Settlement

19 Administration Costs will be paid from the Class Settlement Amount, including, if

20 necessary, any such costs in excess of the amount represented by the Settlement

21 Administrator as being the maximum costs necessary to administer the Settlement.

22 Based on an estimated Settlement Class of approximately 11,000 members, the

23 Settlement Administration Costs are currently estimated to be Seventy Five Thousand

24 Dollars ($75,000.00). To the extent actual Settlement Administration Costs are greater

25 than $75,000.00, such excess amount will be taken out of the Class Settlement Amount.

26 32. "Settlement Administrator" means any third-party class action settlement

27 administrator agreed to by the Parties and approved by the Court for the purposes of

28 administering this Settlement. The Parties each represent that they do not have any

Page7



1 fmancial interest in the Settlement Administrator or otherwise have a relationship with the

2 Settlement Administrator that could create a conflict of interest.

3 33. "Workweeks" means the number of calendar days of employment as an

4 hourly employee for each Class Member during the Class Period, subtracting days on

5 leave of absence (if any), dividing by seven (7), and rounding up to the nearest whole

6 number. All Class Members will be credited with at least one Workweek.

7 LITIGATIONBACKGROUND

8 34. On May 1, 2013, PlaintiffDavid Berry filed a complaint in the Superior

9 Court of the State of California for the County of San Francisco (Case No. CGC-13-

10 531071).

11 3 5. On October 29, 2013, Plaintiff Jasmin Perez filed a complaint in the

12 Superior Court of California for the County of San Diego (Case No. 37-2013-00073549-

13 CU-OE-CTL).

14 36. On February 14,2014, PlaintiffZayda Santizo filed a complaint in the

15 Superior Court of California for the County of Los Angeles (Case No. BC536316).

16 37. On June 5, 2014, PlaintiffFlor Khan filed a complaint in the United States

17 District Court for the Northern District of California (Case No. 14-cv-2601 ).

18 38. Defendants timely removed the Berry, Perez, and Santizo actions to federal

19 court, where the actions were eventually consolidated with each other and with the Khan

20 action.

21 39. In their complaints, David Berry, Jasmin Perez, Zayda Santizo, and Flor

22 Khan sought relief for themselves individually and for a class of individuals who worked

23 as hourly employees at Urban Outfitters or Free People stores in California. Their

24 complaints collectively included claims for alleged unpaid overtime; unpaid minimum

25 wages; unpaid meal and rest period premiums; failure to timely pay wages during

26 employment and upon termination; non-compliant wage statements; failure to reimburse

27 business expenses; violation of California Business & Professions Code§§ J 7200, et

28 seq.; and violation of California Labor Code Private Attorneys General Act of2004

Page&



1 (California Labor Code § § 2698, et seq. ("P AGA") ).

2 40. On December 11, 2014, Plaintiffs filed a First Amended Consolidated Class

3 Action Complaint and Enforcement Action Under the Private Attorneys General Act,

4 California Labor Code §§ 2698 Et Seq. In the amended complaint, Plaintiffs added a

5 new named plaintiff, Kyle Miller; added a putative class claim for violation of California

6 Labor Code§ 227.3 (unpaid vested vacation wages); and amended allegations to clarify

7 Plaintiffs' overtime claim, among other things.

8 41. In their answers to each complaint, Defendants denied the claims. In

9 settling the Actions, Defendants maintain that position.

10 42. Since before the filing of the Actions and through Settlement, Plaintiffs'

11 Counsel have conducted a thorough investigation into the facts of the class actions,

12 including interviewing numerous witnesses. Plaintiffs' Counsel have also engaged in

13 extensive discovery, including propounding interrogatories and requests for production of

14 documents, reviewing and analyzing documents produced by Defendants, deposing

15 Defendants' Federal Rules of Civil Procedure, Rule 30(b )( 6) designees, and interviewing

16 several prospective Class Members. Plaintiffs' Counsel, on behalf of their clients, also

17 served Initial Disclosures; responded to written discovery propounded by Defendants,

18 including interrogatories and requests for production; produced documents in response to

19 Defendants' requests for production; defended the depositions of Plaintiffs; and met and

20 conferred with Defendants' counsel in writing and over the phone on numerous

21 occasiOns.

22 43. On September 4, 2014, April15, 2015, and July 31, 2015, the Parties

23 participated in settlement conferences before the Honorable Nandor J. Vadas, the

24 Magistrate Judge assigned to oversee settlement discussions. After a full day of arm's

25 length negotiations at the July 31, 2015 settlement conference, the Parties negotiated and

26 agreed to the terms of this Agreement.

27 TERMS OF AGREEMENT

28 The Plaintiffs, on behalf of themselves and the Settlement Class, and Defendants

Page9



1 agree as follows:

2 44. Funding of the Class Settlement Amount. Defendants will make a one-time

3 deposit of the Class Settlement Amount of Five Million Dollars ($5,000,000.00) into a

4 qualified settlement account to be established by the Settlement Administrator.

5 Defendants will deposit the Class Settlement Amount within ten (1 0) business days of the

6 Effective Date. After the Effective Date, the Class Settlement Amount will be used for:

7 (i) Individual Settlement Payments; (ii) the Labor and Workforce Development Agency

8 Payment; (iii) the Class Representative Enhancement Payments; (iv) Attorneys' Fees and

9 Costs; (v) Settlement Administration Costs; and (vi) the employer's share of payroll tax

10 requirements, including any employer FICA, FUTA, and SDI contributions.

11 45. Attorneys' Fees and Costs. Defendants agree not to oppose or impede any

12 application or motion for Attorneys' Fees and Costs of not more than One Million Six

13 Hundred Sixty Six Thousand Six Hundred Sixty Seven Dollars ($1,666,667.00), plus the

14 reimbursement of costs and expenses associated with Plaintiffs' Counsel's litigation and

15 settlement of the Actions, not to exceed Fifty Thousand Dollars ($50,000.00), both of

16 which will be paid from the Class Settlement Amount. Subject to Court approval, Lead

17 Class Counsel will decide the allocation of fees and costs among Plaintiffs' Counsel in

18 the Actions in accordance with any agreements as to the division of fees and costs.

19 46. Class Representative Enhancement Payments. In exchange for general

20 releases, and in recognition of their effort and work in prosecuting the Actions on behalf

21 of Class Members, Defendants agree not to oppose or impede any application or motion

22 for Class Representative Enhancement Payments of: (i) Fifteen Thousand Dollars

23 ($15,000.00) to David Berry; and (ii) Ten Thousand Dollars ($10,000.00), each, to Flor

24 Khan, Kyle Miller, Jasmin Perez, and Zayda Santizo. The Class Representative

25 Enhancement Payments will be paid from the Class Settlement Amount and will be in

26 addition to Plaintiffs' Individual Settlement Payments paid pursuant to the Settlement.

27 Plaintiffs will be solely and legally responsible to pay any and all applicable taxes on the

28 payments made pursuant to this paragraph, and will indemnify and hold Defendants

PagelO



1 harmless from any claim or liability for taxes, penalties, or interest arising as a result of

2 the payments.

3 47. Settlement Administration Costs. The Settlement Administrator will be

4 paid for the reasonable costs of administration of the Settlement and distribution of

5 payments from the Class Settlement Amount, which is currently estimated to be Seventy

6 Five Thousand Dollars ($75,000.00). These costs, which will be paid from the Class

7 Settlement Amount, will include, inter alia, the required tax reporting on the Individual

8 Settlement Payments, the issuing of 1099 and W-2 IRS Forms, distributing Notice

9 Packets, calculating and distributing the Class Settlement Amount, and providing

10 necessary reports and declarations.

11 48. P AGA Allocation. The Parties agree to allocate Fifty Thousand Dollars

12 ($50,000.00) from the Class Settlement Amount to the resolution of all Class Members'

13 claims arising under P AGA. Pursuant to P AGA, Seventy Five Percent (7 5%) of the

14 PAGA allocation, or Thirty Seven Thousand Five Hundred Dollars ($37,500.00), shall

15 be paid to the California Labor and Workforce Development Agency, and the remaining

16 Twenty Five Percent (25%) of the P AGA allocation, or Twelve Thousand Five Hundred

17 Dollars ($12,500.00) shall be allocated to the Net Settlement Amount.

18 49. Net Settlement Amount. The entire Net Settlement Amount will be

19 distributed to Participating Class Members. No portion of the Net Settlement Amount

20 will revert to or be retained by Defendants.

21 50. Acknowledgement ofPotential Administration Cost Increases. The Parties

22 hereby acknowledge that Settlement Administration Costs may increase above the

23 current estimate of Seventy Five Thousand Dollars ($75,000.00), and that any such

24 additional Settlement Administration Costs will be taken out of the Class Settlement

25 Amount. Any portion of the estimated or designated Class Administration Costs which

26 are not in fact required to fulfill the total Class Administration Costs will become part of

27 the Net Settlement Amount.

28 51. Individual Settlement Payment Calculations. Individual Settlement

Page 11



1 Payments will be calculated and apportioned from the Net Settlement Amount based on

2 the number of Workweeks a Class Member worked during the Class Period. Specific

3 calculations of Individual Settlement Payments will be made as follows:

4 5l(a) Defendants will calculate the total number ofWorkweeks

5 worked by each Class Member during the Class Period and the

6 aggregate total number of Workweeks worked by all Class

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

51(b)

51( c)

5l(d)

Members during the Class Period.

To determine each Class Member's estimated "Individual

Settlement Payment," the Settlement Administrator will use the

following formula: The Net Settlement Amount will be divided

by the aggregate total number of Workweeks, resulting in the

"Workweek Value." Each Class Member's "Individual

Settlement Payment" will be calculated by multiplying each

individual Class Member's total number of Workweeks by the

Workweek Value.

The Individual Settlement Payment will be reduced by any

required deductions for each Participating Class Members as

specifically set forth herein, including employer and employee

side tax withholdings or deductions.

The entire Net Settlement Amount will be disbursed to all Class

Members who do not submit timely and valid Requests for

Exclusion.

23 52. No Credit Toward Benefit Plans. The Individual Settlement Payments

24 made to Participating Class Members under this Settlement, as well as any other

25 payments made pursuant to this Settlement, will not be utilized to calculate any additional

26 benefits under any benefit plans to which any Class Members may be eligible, including,

27 but not limited to: profit-sharing plans, bonus plans, 401(k) plans, stock purchase plans,

28 vacation plans, sick leave plans, PTO plans, and any other benefit plan. Rather, it is the

Page 12



1 Parties' intention that this Settlement Agreement will not affect any rights, contributions,

2 or amounts to which any Class Members may be entitled under any benefit plans.

3 53. Administration Process. The Parties agree to cooperate in the

4 administration of the Settlement and to make all reasonable efforts to control and

5 minimize the costs and expenses incurred in administration of the Settlement.

6 54. Delivery of the Class List. Within twenty (20) calendar days ofPreliminary

7 Approval, Defendants will provide the Class List to the Settlement Administrator and to

8 Class Counsel.

9 55. Notice by First-Class U.S. Mail. Within ten (10) calendar days after

10 receiving the Class List from Defendants, the Settlement Administrator will mail a Notice

11 Packet to all Class Members via regular First-Class U.S. Mail, using the most current,

12 known mailing addresses identified in the Class List.

13 56. Confirmation of Contact Information in the Class Lists. Prior to mailing,

14 the Settlement Administrator will perform a search based on the National Change of

15 Address Database in order to update and correct any addresses that may have changed.

16 Any Notice Packets returned to the Settlement Administrator as non-deliverable on or

17 before the Response Deadline will be sent promptly via regular First-Class U.S. Mail to

18 the forwarding address affixed thereto and the Settlement Administrator will indicate the

19 date of such re-mailing on the Notice Packet. If no forwarding address is provided, the

20 Settlement Administrator will promptly attempt to determine the correct address using a

21 skip-trace, or other search using the name, address, and/or Social Security number of the

22 Class Member involved, and will then perform a single re-mailing. In the event the

23 procedures in this paragraph are followed and the intended recipient of a Notice Packet

24 still does not receive the Notice Packet, the Class Member shall be bound by all terms of

25 the Settlement and any Final Judgment entered by the Court if the Settlement is approved

26 by the Court. The Settlement Administrator shall at all times protect the privacy rights of

27 Class Members and, for that purpose, shall redact the private personal information of

28 Class Members prior to providing information to Class Counsel about the Class

Page 13



1 Members. Private personal information includes: birthdates, addresses, Social Security

2 numbers, and phone numbers.

3 57. Notice Packets. All Class Members will be mailed a Notice Packet. Each

4 Notice Packet will provide: (i) information regarding the nature of the Actions; (ii) a

5 summary of the Settlement's principal terms; (iii) the Settlement Class definition; (iv) the

6 total number of Workweeks the respective Class Member worked for Defendants during

7 the Class Period; (v) the Class Member's estimated Individual Settlement Payment and

8 the formula for calculating Individual Settlement Payments; (vi) the dates which comprise

9 the Class Period; (vii) instructions on how to submit Requests for Exclusion or file and

10 serve Notices of Objection; (viii) the deadlines by which the Class Member must

11 postmark Request for Exclusions or file and serve Notices of Objection to the Settlement;

12 and (ix) the claims to be released.

13 58. Disputed Information on Notice Packets. Class Members will have an

14 opportunity to dispute the information provided in their Notice Packets. To the extent

15 Class Members dispute their employment dates or the number of Workweeks with which

16 they have been credited, Class Members may produce--by no later than the Response

17 Deadline--evidence to the Settlement Administrator showing that such information is

18 inaccurate. The Settlement Administrator will decide the dispute. Defendants' records

19 will be presumed correct, but the Settlement Administrator will evaluate the evidence

20 submitted by the Class Member and will make the final decision as to the merits of the

21 dispute. All disputes will be decided within ten (10) business days of the Response

22 Deadline.

23 59. Defective Submissions. If a Class Member's Request for Exclusion is

24 defective as to the requirements listed herein, that Class Member will be given an

25 opportunity to cure the defect( s ). The Settlement Administrator will mail the Class

26 Member a cure letter within three (3) business days of receiving the defective submission

27 to advise the Class Member that his or her submission is defective and that the defect

28 must be cured to render the Request for Exclusion valid. The Class Member will have

Page 14

JOINT STIPULATION OF CLASS ACTION SEITLEMENT AND RELEASE Berry v. Urban Outfitters Wholesale, Inc. Exhibit 1 to Declaration of Raul Perez Page 29


1 until the later of (i) the Response Deadline or (ii) fifteen (15) calendar days from the date

2 of the cure letter to postmark or fax a revised Request for Exclusion. If the revised

3 Request for Exclusion is not postmarked or received by fax within that period, it will be

4 deemed untimely.

5 60. Request for Exclusion Procedures. Any Class Member wishing to opt-out

6 from the Settlement Agreement must sign and fax or postmark a written Request for

7 Exclusion to the Settlement Administrator within the Response Deadline. In the case of

8 Requests for Exclusion that are mailed to the Settlement Administrator, the postmark date

9 will be the exclusive means to determine whether a Request for Exclusion has been

10 timely submitted. At no time will any of the Parties or their counsel seek to solicit or

11 otherwise encourage Class Members to opt-out from the Settlement.

12 61. Settlement Class Size. The Class Settlement Amount was calculated based

13 on the understanding that there were approximately Ten Thousand Eight Hundred Forty

14 Four (10,844) Class Members as ofMarch 1, 2015. If the total number of Class

15 Members increases by more than Twenty Percent (20%), or Thirteen Thousand Twelve

16 (13,012) total Class Members, Plaintiffs reserve the right to withdraw from the

17 Settlement. If Plaintiffs wish to exercise their conditional right to withdraw, they must do

18 so by written communication to Defendants' counsel that is received by Defendants'

19 counsel within seven (7) calendar days of obtaining notice that the Settlement Class

20 exceeds 13,012 individuals. In the event that Plaintiffs exercise their conditional right to

21 withdraw, Plaintiffs will be responsible for all Settlement Administration Costs incurred

22 to the date of withdrawal and the Parties will be restored to their litigation positions as of

23 July 31, 2015, except that all deadlines and/or hearings pending as of July 31, 2015 will

24 be rescheduled to afford the Parties sufficient time to resume litigation.

25 62. Settlement Terms Bind All Class Members Who Do Not Opt-Out. Any

26 Class Member who does not affirmatively opt-out of the Settlement Agreement by

27 submitting a timely and valid Request for Exclusion will be bound by all of its terms,

28 including those pertaining to the Released Claims, as well as any Final Judgment that

Page 15



1 may be entered by the Court if it grants fmal approval to the Settlement.

2 63. Objection Procedures. To object to the Settlement Agreement, a Class

3 Member must file a valid Notice of Objection with the Court and serve copies of the

4 Notice of Objection on the Settlement Administrator before the Response Deadline. The

5 Notice of Objection must be signed by the Class Member and contain all information

6 required by this Settlement Agreement. The date of the filing and the postmark date of

7 the mailing will be deemed the exclusive means for determining that the Notice of

8 Objection is timely. Class Members who fail to object in the manner specified above will

9 be deemed to have waived all objections to the Settlement and will be foreclosed from

10 making any objections, whether by appeal or otherwise, to the Settlement Agreement.

11 Class Members who file and serve timely notices of objection will have a right to appear

12 at the Final Approval/Settlement Fairness Hearing in order to have their objections heard

13 by the Court. At no time will any of the Parties or their counsel seek to solicit or

14 otherwise encourage Class Members to submit written objections to the Settlement

15 Agreement or appeal from the Judgment. Only Class Members who do not submit valid

16 Requests for Exclusion may file objections. To the extent a timely objection is

17 withdrawn before fmal approval, such an objection shall be treated as though no objection

18 has been made.

19 64. Certification Reports Regarding Individual Settlement Payment

20 Calculations. The Settlement Administrator will provide Defendants' counsel and Class

21 Counsel a weekly report that (i) certifies the number of Class Members who have

22 submitted valid Requests for Exclusion and the number of objections to the Settlement

23 and (ii) states whether any Class Member has submitted a challenge to any information

24 contained in their Notice Packet. Additionally, the Settlement Administrator will provide

25 to counsel for both Parties any updated reports regarding the administration of the

26 Settlement Agreement as needed or requested.

27 65. Access to Information. The Settlement Administrator will maintain all

28 Requests for Exclusion received from Class Members. The Claims Administrator will

Page 16

JOINT STIPULATION OF CLASS ACTION SETfLEMENT AND RELEASE Berry v. Urban Outfitters Wholesale, Inc. Exhibit 1 to Declaration of Raul Perez Page 31


1 provide copies to the Parties of all documents, including, but not limited to the Requests

2 for Exclusion forms returned by any Class Member upon reasonable request. In order to

3 protect the privacy of the Class Members, the Claims Administrator shall redact the

4 private personal information of the Class Members prior to providing such copies.

5 Private personal information includes: birthdates, addresses, and phone numbers.

6 66. Distribution Timing of Individual Settlement Payments. Within thirty (30)

7 calendar days of the Effective Date, the Settlement Administrator will issue payments to:

8 (i) Participating Class Members; (ii) the Labor and Workforce Development Agency; (iii)

9 Plaintiffs; and (iv) Plaintiffs' Counsel. The Settlement Administrator will also issue a

10 payment to itself for Court-approved services performed in connection with the

11 Settlement. Also within thirty (30) calendar days ofthe Effective Date, the Settlement

12 Administrator shall provide to Defendants, for filing with the Court, a declaration

13 verifying, under oath, that it has mailed payments to each Participating Class Member.

14 67. Un-cashed Settlement Checks. Funds represented by Individual Settlement

15 Payment checks returned as undeliverable and Individual Settlement Payment checks

16 remaining un-cashed for more than one-hundred twenty (120) calendar days after

17 issuance will be tendered to the California Department of Industrial Relations Unpaid

18 Wage Fund (see Cal. Lab. Code§ 96.6).

19 68. Certification of Completion. No later than twenty (20) calendar days prior

20 to the Final ApprovaVSettlement Fairness Hearing, the Settlement Administrator will

21 provide a written declaration under oath to (i) certify completion of administration of the

22 Settlement to the Court and counsel for all Parties and (ii) provide all Settlement related

23 data, including the number of Class Members who have submitted valid Requests for

24 Exclusion and the number of objections to the Settlement.

25 69. Treatment of Individual Settlement Payments. All Individual Settlement

26 Payments will be allocated as follows: (i) twenty percent (20%) of each Individual

27 Settlement Payment will be allocated as wages for which IRS Forms W-2 will be issued,

28 (ii) forty percent ( 40%) will be allocated to alleged unpaid penalties for which IRS Forms

Page 17



1 1 099-MISC will be issued, and (iii) the remaining forty percent ( 40%) will be allocated as

2 interest for which IRS Forms 1 099-MISC will be issued.

3 70. Administration of Taxes by the Settlement Administrator. The Settlement

4 Administrator will be responsible for, inter alia, (i) calculating and deducting required

5 withholdings and payroll taxes from each Individual Settlement Payment prior to mailing

6 each Individual Settlement Payment check; (ii) issuing to Plaintiffs, Participating Class

7 Members, and Plaintiffs' Counsel any W -2, 1099, or other tax forms as may be required

8 by law for all amounts paid pursuant to this Settlement; and (iii) forwarding all payroll

9 taxes and penalties to the appropriate government authorities.

10 71. Tax Liability. Defendants make no representation as to the tax treatment or

11 legal effect of the payments called for hereunder, and Plaintiffs, Participating Class

12 Members, and Plaintiffs' Counsel are not relying on any statement, representation, or

13 calculation by Defendants or by the Settlement Administrator in this regard. Plaintiffs,

14 Participating Class Members, and Plaintiffs' Counsel understand and agree that they will

15 be solely responsible for the payment of any taxes and penalties assessed on the payments

16 described herein.

17 72. Circular 230 Disclaimer. EACH PARTY TO THIS AGREEMENT (FOR

18 PURPOSES OF THIS SECTION, 1HE "ACKNOWLEDGING PARTY" AND EACH

19 PARTY TO THIS AGREEMENT OTIIER THAN 1HE ACKNOWLEDGING

20 PARTY, AN "OTIIER PARTY'') ACKNOWLEDGES AND AGREES THAT (1) NO

21 PROVISION OF THIS AGREEMENT, AND NO WRITTEN COMMUNICATION

22 ORDISCLOSUREBETWEENORAMONGTIIEPARTIES OR THEIR

23 ATTORNEYS OR OTIIER ADVISERS, IS OR WAS INTENDED TO BE, NOR

24 WILL ANY SUCH COMMUNICATION OR DISCLOSURE CONSTITUTE OR BE

25 CONSTRUED OR BE RELIED UPON AS, TAX ADVICE WITHIN 1HE MEANING

26 OF UNITED STATES TREASURYDEPARTMENTCIRCULAR230 (31 CFRPART

27 10, AS AMENDED); (2) 1HE ACKNOWLEDGING PARTY (A) HAS RELIED

28 EXCLUSIVELY UPON HIS, HER, OR ITS OWN, INDEPENDENT LEGAL AND

Page 18



1 TAX COUNSEL FOR ADVICE (INCLUDING TAX ADVICE) IN CONNECTION

2 WITH THIS AGREEMENT, (B) HAS NOT ENTERED INTO THIS AGREEMENT

3 BASED UPON THE RECOMMENDATION OF ANY OTHER PARTY OR ANY

4 ATTORNEY OR ADVISOR TO ANY OTHERPARTY,AND (C) IS NOT

5 ENTITLED TO RELY UPON ANY COMMUNICATION OR DISCLOSURE BY

6 ANY ATTORNEYORADVISER TOANYOTHERPARTYTOAVOIDANYTAX

7 PENALTY THAT MAY BE IMPOSED ON THE ACKNOWLEDGING PARTY;

8 AND (3) NO ATTORNEY OR ADVISER TO ANY OTHER PARTY HAS IMPOSED

9 ANY LIMITATION THAT PROTECTS THE CONFIDENTIALITY OF ANY SUCH

10 ATTORNEY'S OR ADVISER'S TAX STRATEGIES (REGARDLESS OF

11 WHETHER SUCH LIMITATION IS LEGALLY BINDING) UPON DISCLOSURE

12 BY THE ACKNOWLEDGING PARTY OF THE TAX TREATMENT OR TAX

13 STRUCTURE OF ANY TRANSACTION, INCLUDING ANY TRANSACTION

14 CONTEMPLATED BY THIS AGREEMENT.

15 73. No Prior Assignments. The Parties and their counsel represent, covenant,

16 and warrant that they have not directly or indirectly assigned, transferred, encumbered, or

17 purported to assign, transfer, or encumber to any person or entity any portion of any

18 liability, claim, demand, action, cause of action or right herein released and discharged.

19 74. Nullification of Settlement Agreement. In the event that: (i) the Court does

20 not fmally approve the Settlement as provided herein; or (ii) the Settlement does not

21 become final for any other reason, then this Settlement Agreement, and any documents

22 generated to bring it into effect, will be null and void. Any order or Judgment entered by

23 the Court in furtherance of this Settlement Agreement will likewise be treated as void

24 from the beginning.

25 7 5. Preliminary Approval. No sooner than thirty (30) calendar days but no later

26 than forty-five ( 45) calendar days after execution of this Settlement Agreement by all

27 Parties, Class Counsel shall move the Court for an order (a) preliminarily approving this

28 Settlement; (b) concluding that the Settlement Class meets the prerequisites for class

Page 19



1 certification for settlement purposes only; (c) approving the Notice Packet to be provided

2 to the Settlement Class; (d) establishing a procedure for the Settlement Class to request

3 exclusion or object; (e) setting a date for a Final ApprovaVSettlement Fairness Hearing;

4 and (f) enjoining Class Members from filing, initiating, or continuing to prosecute any

5 actions, claims, complaints, or proceedings in Court, with the California Labor and

6 Workforce Development Agency or with any entity regarding the Released Claims. In

7 conjunction with the Preliminary Approval hearing, Plaintiffs will submit this Settlement

8 Agreement, which sets forth the terms of this Settlement, and will include the proposed

9 Notice Packet, which will include both the proposed Notice of Class Action Settlement

10 document and the proposed Mailing Envelope, attached as Exhibits A and B,

11 respectively. Prior to moving for Preliminary Approval, Class Counsel shall share the

12 draft motion with Defendants' counsel and provide Defendants five (5) business days to

13 review and propose revisions.

14 76. Defendants' Satisfaction ofCAF A Notice Obligations. Defendants shall

15 have completed service of notice obligations under 28 U.S.C.S. § 1715(b) no later than

16 ten (1 0) calendar days after Class Counsel moves for Preliminary Approval. Defendants

17 shall file a declaration with the Court attesting to having completed their obligations

18 under 28 U.S.C.S. § 1715(b) no later than fifteen (15) calendar days after Class Counsel

19 moves for Preliminary Approval.

20 77. Final Settlement Approval Hearing and Entry of Judgment. Upon

21 expiration of the deadlines to postmark Requests for Exclusion or objections to the

22 · Settlement Agreement, and with the Court's permission, a Final ApprovaVSettlement

23

24

25

Fairness Hearing will be conducted to determine the fmal approval of the Settlement

Agreement along with the amounts properly payable for: (i) Individual Settlement

Payments; (ii) the Labor and Workforce Development Agency Payment; (ii) the Class

26 Representative Enhancement Payments; (iii) Attorneys' Fees and Costs; and (iv) all

27 Settlement Administration Costs. The Final ApprovaVSettlement Fairness Hearing will

28 not be held any earlier than thirty (30) calendar days after the Response Deadline. Class

Page20



1 Counsel will be responsible for drafting all documents necessary to obtain fmal approval.

2 Class Counsel will also be responsible for drafting the attorneys' fees and costs

3 application to be heard at the final approval hearing.

4 78. Final Judgment and Continued Jurisdiction. At the Final

5 Approval/Settlement Fairness Hearing, Class Counsel shall petition the Court to enter an

6 order in the Actions, which shall include a dismissal of all Released Claims by Plaintiffs

7 and Participating Class Members, with prejudice, and declare that Plaintiffs and all

8 Participating Class Members are bound by the release of claims described in the Notice

9 Packet. Prior to petitioning the Court, Class Counsel shall share the draft order with

10 Defendants' counsel and provide Defendants five ( 5) business days to review and

11 propose revisions. After entry of the Final Judgment, the Court will have continuing

12 jurisdiction solely for purposes of addressing: (i) the interpretation and enforcement of

13 the terms of the Settlement, (ii) Settlement administration matters, and (iii) such post-

14 judgment matters as may be appropriate under court rules or as set forth in this Settlement

15 Agreement.

16 79. Release by Plaintiffs and Participating Class Members. Upon the Effective

17 Date, Plaintiffs and all Participating Class Members identified on the Class List will be

18 deemed to have expressly waived and relinquished, to the fullest extent permitted by law,

19 the provisions, rights, and benefits of Section 1542 of the California Civil Code as to the

20 Released Claims, which provides:

21 A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

22 WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO

23 EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING

24 THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST

25 HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT

26 WITH THE DEBTOR.

27 Plaintiffs and Participating Class Members agree not to sue or otherwise make a claim

28 against any of the Released Parties for the Released Claims. In addition, as to Plaintiffs,

Page21



1 the Released Claims shall also include all claims, known and unknown, under local, state,

2 or federal law, in tort, common law, or contract, whether pleaded in the Class Action

3 Complaint or not, except any pending Workers' Compensation claims. This release

4 excludes the release of claims not permitted by law.

5 80. Exhibits Incorporated by Reference. The terms of this Settlement

6 Agreement include the terms set forth in any attached Exhibits, which are incorporated by

7 this reference as though fully set forth herein. Any Exhibits to this Settlement Agreement

8 are an integral part ofthe Settlement.

9 81. Headings. The descriptive headings of any paragraphs or sections of the

10 Settlement Agreement are inserted for convenience of reference only and do not

11 constitute a part of this Agreement.

12 82. Entire Agreement. This Settlement Agreement and any attached Exhibits

13 constitute the entirety of the Parties' settlement terms. No other prior or

14 contemporaneous written or oral agreements may be deemed binding on the Parties. The

15 Parties expressly recognize California Civil Code Section 1625 and California Code of

16 Civil Procedure Section 1856(a), which provide that a written agreement is to be

17 construed according to its terms and may not be varied or contradicted by extrinsic

18 evidence, and the Parties agree that no such extrinsic oral or written representations or

19 terms will modifY, vary, or contradict the terms of this Settlement Agreement.

20 83. Amendment or Modification. No amendment, change, or modification to

21 this Settlement Agreement will be valid unless in writing and signed, either by the Parties

22 or their counsel.

23 84. Authorization to Enter Into Settlement Agreement. Counsel for all Parties

24 warrant and represent they are expressly authorized by the Parties whom they represent to

25 negotiate this Settlement Agreement and to take all appropriate action required or

26 permitted to be taken by such Parties pursuant to this Settlement Agreement to effectuate

27 its terms and to execute any other documents required to effectuate the terms of this

28 Settlement Agreement. The Parties and their counsel will cooperate with each other and

Page22

JOINT STIPULATION OF CLASS ACTION SETfLEMENT AND RELEASE Berry v. Urban Outfitters Wholesale, Inc. Exhibit 1 to Declaration of Raul Perez Page 37


1 use their best efforts to effect the implementation of the Settlement. If the Parties are

2 unable to reach agreement on the form or content of any document needed to implement

3 the Settlement, or on any supplemental provisions that may become necessary to

4 effectuate the terms of this Settlement, the Parties may seek the assistance of the Court to

5 resolve such disagreement.

6 85. Binding on Successors and Assigns. This Settlement Agreement will be

7 binding upon, and inure to the benefit of, the successors or assigns of the Parties hereto, as

8 previously defmed.

9 86. California Law Governs. All terms of this Settlement Agreement and

10 Exhibits hereto will be governed by and interpreted according to the laws of the State of

11 California.

12 87. Execution in Counterparts. This Settlement Agreement is subject only to

13 the execution of all Parties. However, the Settlement Agreement may be executed in one

14 or more counterparts. All executed counterparts and each of them, including facsimile

15 and scanned copies of the signature page, will be deemed to be one and the same

16 instrument. A facsimile copy shall be considered an original for all purposes.

17 88. Acknowledgement that the Settlement is Fair and Reasonable. The Parties

18 believe this Settlement Agreement is a fair, adequate, and reasonable settlement of the

19 Actions and have arrived at this Settlement after arm's-length negotiations and in the

20 context of adversariallitigation, taking into account all relevant factors, present and

21 potential. The Parties further acknowledge that they are each represented by competent

22 counsel and that they have had an opportunity to consult with their counsel regarding the

23 fairness and reasonableness of this Settlement.

24 89. Invalidity of Any Provision. Before declaring any provision of this

25 Settlement Agreement invalid, the Court will first attempt to construe the provision as

26 valid to the fullest extent possible consistent with applicable precedents so as to define all

27 provisions of this Settlement Agreement valid and enforceable.

28 90. Waiver of Certain Appeals. The Parties agree to waive appeals and to

Page23



1 stipulate to class certification for purposes of this Settlement only; except, however, that

2 Plaintiffs or Plaintiffs' Counsel may appeal any reduction to the Attorneys' Fees and

3 Costs below the amount they request from the Court, and either party may appeal any

4 court order that materially alters the Settlement Agreement's terms.

5 91. Class Action Certification for Settlement Purposes Only. The Parties agree

6 to stipulate to class action certification for purposes ofthe Settlement only. If, for any

7 reason, the Settlement is not approved, the stipulation to certification will be void, and the

8 Parties will be restored to their litigation positions as of July 31, 2015, except that all

9 deadlines and/or hearings pending as of July 31, 2015 will be rescheduled to afford the

10 Parties sufficient time to resume litigation. The Parties further agree that certification for

11 purposes of the Settlement is not an admission that class action certification is proper

12 under the standards applied to contested certification motions and that this Settlement

13 Agreement will not be admissible in this or any other proceeding as evidence that either

14 (i) a class action should be certified or (ii) Defendants are liable to Plaintiffs or any Class

15 Member, other than according to the Settlement's terms.

16 92. Interim Stay ofProceedings. The Parties agree that all proceedings in the

17 Actions shall be stayed, except such proceedings necessary to implement and complete

18 the Settlement, pending completion of the hearings referenced herein.

19 93. Notice To Counsel. All notices, requests, demands, and other

20 communications required or permitted to be given pursuant to this Settlement Agreement

21 shall be in writing and shall be delivered personally or mailed, postage prepaid, by first-

22 class mail, to the undersigned persons at their respective addresses as set forth herein:

23

24

25

26

27

28

Lead Counsel for Plaintiffs

Raul Perez, Esq. Melissa Grant, Esq. Arnab Banerjee, Esq. Suzy E. Lee, Esq. Capstone Law APC 1840 Century Park East, Suite 450

Counsel for Defendants

Cheryl D. Orr, Esq. Jaime D. Walter, Esq. Drinker Biddle & Reath LLP 50 Fremont Street, 20th Floor San Francisco, CA 94105-2235 Telephone: (415) 591-7500

Page24



1

2

3

Los Angeles, CA 90067 Telephone: (31 0) 556-4811 Facsimile: (310) 943-0396

Facsimile: (415) 591-7510

4 94. Non-Admission of Liability. The Parties enter into this Settlement to

5 resolve the dispute that has arisen between them and to avoid the burden, expense, and

6 risk of continued litigation. In entering into this Settlement, Defendants do not admit-

7 and in fact specifically deny-that they violated any federal, state, or local law; violated

8 any regulations or guidelines promulgated pursuant to any statute or any other applicable

9 laws, regulations, or legal requirements; breached any contract; violated or breached any

10 duty; engaged in any misrepresentation or deception; or engaged in any other unlawful

11 conduct with respect to their employees. Neither this Settlement Agreement, nor any of

12 its terms or provisions, nor any of the negotiations connected with it, will be construed as

13 an admission or concession by Defendants of any such violations or failures to comply

14 with any applicable law. Except as necessaty in a proceeding to enforce the terms of this

15 Settlement, this Settlement Agreement and its terms and provisions will not be offered or

16 received as evidence in any action or proceeding to establish any liability or admission on

17 the part of Defendants or to establish the existence of any condition constituting a

18 violation of, or non-compliance with, federal, state, local, or other applicable law.

19 95. Option to Rescind the Settlement Agreement. Defendants may elect to

20 rescind the Settlement if more than 10% of the Class Members submit timely Requests

21 for Exclusion and do not rescind them by the Response Deadline. If Defendants wish to

22 exercise their conditional right to rescind, they must do so by written communication to

23 Plaintiffs' Counsel that is received by Plaintiffs' Counsel within twenty-one (21) calendar

24 days of the Response Deadline. In the event that Defendants exercise their conditional

25 right to rescind, the Parties will be restored to their litigation positions as of July 31, 2015,

26 except that all deadlines and/ or hearings pending as of July 31, 2015 will be rescheduled

27 to afford the Parties sufficient time to resume litigation. Defendant will be responsible for

28 all Settlement Administration Costs incurred to the date of rescission.

Page25

JOINT STIPULATION OF CLASS ACTION SEITLEMENT AND RELEASE Berry v. Urban Outfitters Wholesale, Inc. Exhibit 1 to Declaration of Raul Perez Page 40


1 96. Excluded Class Members. Any Class Member who, through a settlement

2 agreement with Defendants or any of the Released Parties that was executed prior to the

3 date of Preliminary Approval, has released the claims at issue in the Actions for the entrre

4 Class Period will (i) not be included in the Settlement Agreement, (ii) be excluded from

5 the settlement payment calculations discussed herein, and (iii) not be entitled to notice as

6 provided herein. Any release that does not encompass the entire Class Period requires the

7 claims of such individuals be limited to the time which is unaffected by the prior

8 settlement. This provision is applicable to only one ( 1) individual and is contingent upon

9 confirmation by the Court. Counsel for Defendants shall submit copies of any settlement

10 agreements and any other supporting documentation to the Court under seal prior to the

11 Preliminary Approval hearing to allow the Court to determine whether the scope of the

12 release in the prior action in fact precludes or limits participation in the instant Actions.

13 97. Publicity/Non-Disclosure. Except as provided herein, the Parties and their

14 counsel agree that they will not issue any press releases, initiate any contact with the

15 press, respond to any press inquiry, or have any communication with the press about the

16 fact, amount, or terms of the Settlement. In addition, the Parties and their counsel agree

17 that they will not engage in any advertising or distribute any marketing materials relating

18 to the Settlement of the Actions. This Settlement Agreement does not preclude Class

19 Counsel from stating on their websites or any other marketing materials following

20 preliminary approval that they settled a wage-and-hour class action for $5 million or from

21 generally describing the claims at issue, provided they refer to Defendants only as

22 "prominent clothing retailers" and not by name or otherwise. Additionally, Class

23 Counsel may refer specifically to this case in any subsequently filed adequacy of counsel

24 declaration in later cases.

25 98. Waiver. No waiver of any condition or covenant contained in this

26 Settlement Agreement or failure to exercise a right or remedy by any of the Parties hereto

27 will be considered to imply or constitute a further waiver by such party of the same or any

28 other condition, covenant, right, or remedy.

Page26



1 99. Enforcement Actions. In the event that one or more of the Parties institutes

2 any legal action or other proceeding against any other Party or Parties to enforce the

3 provisions of this Settlement or to declare rights and/or obligations under this Settlement,

4 the successful Party or Parties will be entitled to recover from the unsuccessful Party or

5 Parties reasonable attorneys' fees and costs, including expert witness fees incurred in

6 connection with any enforcement actions.

7 100. Mutual Preparation. The Parties have had a full opportunity to negotiate the

8 terms and conditions of this Settlement Agreement. Accordingly, this Settlement

9 Agreement will not be construed more strictly against one party than another merely by

10 virtue of the fact that it may have been prepared by counsel for one of the Parties, it being

11 recognized that, because of the arms-length negotiations between the Parties, all Parties

12 have contributed to the preparation of this Settlement Agreement.

13 101. Representation By Counsel. The Parties acknowledge that they have been

14 represented by counsel throughout all negotiations that preceded the execution of this

15 Settlement Agreement, and that this Settlement Agreement has been executed with the

16 consent and advice of counsel. Further, Plaintiffs and Plaintiffs' Counsel warrant and

17 represent that there are no liens on the Settlement Agreement.

18 102. All Terms Subject to Final Court Approval. All amounts and procedures

19 described in this Settlement Agreement will be subject to fmal Court approval.

20 103. Cooperation and Execution ofNecessary Documents. All Parties will

21 cooperate in good faith and execute all documents to the extent reasonably necessary to

22 effectuate the terms of this Settlement Agreement.

23 104. Binding Agreement. The Parties warrant that they understand and have full

24 authority to enter into this Settlement Agreement, and further intend that this Settlement

25 Agreement will be fully enforceable and binding on all Parties, and agree that it will be

26 admissible and subject to disclosure in any proceeding to enforce its terms,

27 notwithstanding any mediation confidentiality provisions that otherwise might apply

28 under federal or state law. Plaintiffs agree that, by signing this Settlement Agreement,

Page27




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

they are bound by the terms herein stated and further agree not to request to be excluded

from the Settlement and further warrant and represent that they have no objection to any

of the terms of this Settlement. Any attempt to opt-out of the Settlement or otherwise

not comply with this Settlement Agreement shall be deemed void and of no force or

effect. Any such request for exclusion shall therefore be void and of no force or effect.

READ CAREFULLY BEFORE SIGNING

PLAINTIFF

Dated: _____________________ Plaintiff David Berry

PLAINTIFF

Dated: _____________________ Plaintiff Flor Khan

PLAINTIFF

Dated: _____________________ Plaintiff Kyle Miller

PLAINTIFF

Dated: _____________________ Plaintiff Jasmin Perez

PLAINTIFF

Dated: _____________________ Plaintiff Zayda Santizo

DocuSign Envelope ID: 4EFD5A97-20F9-412F-BD1A-8A67EB3DC4DC

10/21/2015



DocuSign Envelope 10: 2BEC7289-7E44-4181-8F4C-BCA49FB62A22

1 they are bound by the terms herein stated and further agree not to request to be excluded

2 from the Settlement and further warrant and represent that they have no objection to any

3 of the terms ofthis Settlement. Any attempt to opt-out of the Settlement or otherwise not

4 comply with this Settlement Agreement shall be deemed void and of no force or

5 effect. Any such request for exclusion shall therefore be void and of no force or effect.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Dated:

Dated:

Dated:

Dated:

Dated:


PLAINTIFF

-----------------Plaintiff David Berry

PLAINTIFF

~"kC -----------------10/25/2015

PLAINTIFF

-----------------PlaintiffKyle Miller

PLAINTIFF

------------------Plaintiff Jasmin Perez

PLAINTIFF

------------------Plaintiff Zayda Santizo

Page 28

JOINT STIPUlATION OF CLASS ACTION SEITlEMENT AND RELEASE



From; 10/13/2015 11 ;01 #025 P.001/001 "" "'""'···-~·-~, H--·-:···H-H0--·0-HOO" ...... ' ..•.... , ..... , ....... ,.,_,_,_._:---..:---.-~.,.,..,.,..--·.·· ................... ·:··> , ....... , .. . . . ·'-=-""""''""

__ _.1_1. _they_are_bnund_by_the_terms_herein.stated_and further agree not to requestto.be excluded


3 of the terms of this Settlement. Any attempt to opt-out of the Settlement or otherwise

4 not comply with this Settlement Agreement shall be deemed void and of no force or


6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22


PLAINTIFF

Dmed: -------------Plaintiff David Berry

PLAINTIFF

Dated: _________ _ PlaintiffFlor Khan

PLAINTIFF

Dated: /o /[J/t5 I

~~L Q..~ Plaill'fff)lie Miller

PLAINTIFF

23 Dated: _______ _

24

25

26

27

28

Dated: --------

Plaintiff Jasmin Perez

PLAINTIFF

Plaintiff Zayda Santizo

Pa e28

]OINT STIPULATION OF CLASS ACTION SElTLEMENT AND RELEASE Berry v. Urban Outfitters Wholesale, Inc. Exhibit 1 to Declaration of Raul Perez Page 45


they are bound by the tenns herein stated and further agree not to request to be excluded


3 of the tenns of this Settlement. Any attempt to opt-out of the Settlement or otherwise

4 not comply with this Settlement Agreement shall be deemed void and of no force or


6

7

8

9

10

ll

12

13

14

15

16

17

18

19

20

21

22

Dated:

Dated:

Dated:

23 Dated:

24

25

26 Dated:


PLAINTIFF

---------------- -----·- ---.. -· ----------Plainti ff;~:·:.h!d Berry

--------------PlaintiffFlor Khan

PLAINTIFF

-------------Plaintiff Kyle Miller

PLAINTIFF

-------------27 Plaintiff Zayda Santizo

28

Page28

JOINT SllPUlA TION OF CLAss ACfiON SETilEMINT AND RELEAsE



: rmrn tht \d!J.;,,~~,-,. .00 fW1hi.Tv.;amn: ... ~!hat lk) Me no ot,ccoon tO aft)

1 I ofth<; lmlb o''thh Sroioemt11L An) an<~ 'Ooplo()Ut of~ Scnlanmt occ.>tl'lerniW

_. , nol C<Jf1l(ll) "•llh th1~ &•uk-n'lem A~l'lttll )lull be: deemed \'Okl wld of no lb«e Of

; j <IT<X"L Any...,._,"'~"'"' ror e"'hmnn wlllh<n·ford:>< ,rud and ol no '"""' cc eiTeu

.:/1 ~. II

;: II ,. " ,. 17

1/

lhocd:

.. I 19 Oiled.----

::· I

KL\DCAIU.FLII' HHORESIG,I'l.

1•1.1\IVffFF

PloJinutTKyle Milk,.-

nl ~· 0.000 -----

Pl.11ntllt Jas.nun J>tn:.,

PLAINTIFF

Berry v. Urban Outfitters Wholesale, Inc.Exhibit 1 to Declaration of Raul Perez Page 47


1

2

3 Dated: 10 · :l l · t.)

4

5

6

7

8

9

10

11

12

13

14

,... Dated: /{) · '2- (. ( \

_£~~~---------

URBAN OUTFITTERS WHOLESALE, INC.

Frank Confo~= ChiefFinancial Officer

URBAN OUTFITTERS, INC.

URBAN OUTFITTERS WEST, LLC

15

16 APPROVED AS TO FORM

17

18

19

20

21

22

23

24

25

Dated:

Dated:

26 Dated:

27

28

-----------------

-----------------

-----------------

CAPSTONE LAW APC

By:. __________________________ ___ Raul Perez BLUMENTHAL NORDREHAUG & BHOWMIK

By:. __________________________ _ Norman B. Blumenthal

LAW OFFICES OF ARI MOSS

By:. __________________________ ___ AriMoss

Page29




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

URBAN OUTFITTERS WHOLESALE, INC.

Dated: _____________________ Frank Conforti Chief Financial Officer

URBAN OUTFITTERS, INC.

Dated: _____________________ Frank Conforti Chief Financial Officer URBAN OUTFITTERS WEST, LLC

Dated: _____________________ Frank Conforti Chief Financial Officer

APPROVED AS TO FORM

CAPSTONE LAW APC

Dated: _____________________ By: Raul Perez

BLUMENTHAL NORDREHAUG & BHOWMIK

Dated: _____________________ By: Norman B. Blumenthal

October 26, 2015



JOINT STIPUlATION OF CLASS ACTION SEITIEMENT AND RELEAsE



DocuSign Envelope ID: 2BEC7289-7E44-4181-8F4C-BCA49FB62A22

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

Dated: !o/?-? It)

Dated: -----------------

SCOTT COLE & ASSOCIATES

DRINKER BIDDLE & REATH LLP

By: ____________ _ Cheryl D. Orr

Page 30

JOINT STIPULATION OF CLASS ACTION SETilEMENT AND RELEASE



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

Dated: ----------------

Dated: ---+-~ 0=--t}--=--.;Ui=---j}'--'-\5",.____ __

SCOTT COLE & ASSOCIATES

By: __________________________ _

Scott Cole

DRINKER BIDDLE & REATH LLP

By: c~ t. LM ~~~~!J Cheryl D." I I

Page30




Exhibit A



Berry v. Urban Outfitters Wholesale, Inc., Case No. 4:13-cv-02628-JSW Perez v. Urban Outfitters, Inc., Case No. 4:14-cv-00024-JSW

Santizo v. Urban Outfitters Wholesale, Inc., Case No. 4:14-cv-01580-JSW Khan v. Urban Outfitters West, LLC, Case No. 4:14-cv-02601-JSW

UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA

NOTICE OF CLASS ACTION SETTLEMENT

You are not being sued. This is a court-authorized notice that affects your rights. Please read it carefully.

To: All persons who were employed at Urban Outfitters stores in California in hourly positions at any time between May 1, 2009 and [date of preliminary approval] and all persons who were employed at Free People stores in California in hourly positions at any time from October 29, 2009 to [date of preliminary approval] (collectively, “Class Members”).

On ________, the Honorable Jeffrey S. White of the United States District Court, Northern District of California, granted preliminary approval of this class action settlement and ordered the litigants to notify all Class Members of the settlement. You have received this notice because defendants Urban Outfitters Wholesale, Inc., Urban Outfitters, Inc., and Urban Outfitters West, LLC’s (collectively, “Defendants”) records indicate that you are a Class Member, and are therefore entitled to a payment from the settlement.

Unless you choose to opt out of the settlement by following the procedures described below, you will be deemed a Participating Class Member and, if the Court grants final approval of the settlement, will be mailed a check for your share of the settlement fund. The Final Approval/Settlement Fairness Hearing on the adequacy, reasonableness, and fairness of the settlement will be held at 9:00 a.m. on __________, 20__ in Courtroom 5 of the United States District Court, Northern District of California, located at 1301 Clay Street, Oakland, California 94612. You are not required to attend the hearing, but you are welcome to do so. Please note the hearing may be continued without further notice to the class.

Summary of the Litigation Plaintiffs David Berry, Flor Khan, Kyle Miller, Jasmin Perez, and Zayda Santizo (collectively, “Plaintiffs”), on their own behalf and on behalf of other current and former hourly employees, allege that Defendants violated California state labor laws as a result of their alleged failure to, among other things (1) pay minimum and overtime wages; (2) provide meal and rest periods; (3) timely pay wages during employment; (4) timely pay wages upon discharge or termination of employment; (5) pay unused vacation time; (6) provide accurate, itemized wage statements; and (7) reimburse business expenses. After the exchange of relevant information and evidence, the parties agreed to enter into settlement negotiations in an attempt to informally resolve the claims in the case. On July 31, 2015, the parties participated in a settlement conference with the Honorable Nandor J. Vadas of the United States District Court, Northern District of California. With Judge Vadas’s guidance, the parties were eventually able to negotiate a settlement of Plaintiffs’ claims. Counsel for Plaintiffs, and the attorneys appointed by the Court to represent the class, Capstone Law APC (“Lead Class Counsel”); Blumenthal Nordrehaug & Bhowmik (“Liaison Counsel”); and the Law Offices of Ari Moss (collectively, “Class Counsel”), have investigated and researched the facts and circumstances underlying the issues raised in the case and the law applicable. While Class Counsel believe that the claims alleged in this lawsuit have merit, Class Counsel also recognize that the risk and expense of continued litigation justify settlement. Based on the foregoing, Class Counsel believe the proposed settlement is fair, adequate, reasonable, and in the best interests of Class Members. Throughout the litigation, Defendants have denied—and continue to deny—the factual and legal allegations in the case and have maintained that they have valid defenses to Plaintiffs’ claims and that, for any purpose other than settlement, the action is not appropriate for class treatment. By agreeing to settle, Defendants are not admitting liability on any of the factual allegations or claims in the case or that the case can or should proceed as a class action. Defendants have agreed to settle the case as part of a compromise with Plaintiffs after taking into consideration the costs of continued litigation. The Court has not ruled with respect to Plaintiffs’ claims or Defendants’ defenses.



Questions? Contact the Settlement Administrator toll free at 1-***-***-****. Page 2

Summary of the Proposed Settlement Terms Plaintiffs and Defendants have agreed to settle the underlying class claims in exchange for a class settlement amount of $5,000,000. This amount is inclusive of (1) individual settlement payments to all Participating Class Members; (2) Class Representative Enhancement Payments of $15,000 to David Berry and $10,000, each, to Flor Khan, Kyle Miller, Jasmin Perez, and Zayda Santizo for their services on behalf of the class; (3) up to $1,666,667 in attorneys’ fees and up to $50,000 in litigation costs and expenses; (4) a $37,500 payment to the California Labor and Workforce Development Agency (“LWDA”) in connection and in accordance with California Labor Code §§ 2698, et seq.; (5) reasonable Settlement Administrator’s fees and expenses currently estimated at $75,000; and (6) the employee and employer’s share of payroll tax requirements. After deducting the Class Representative Enhancement Payments, attorneys’ fees and costs, payment to the LWDA, and the Settlement Administrator’s fees and expenses, a total of approximately $3,115,833 (before employer or employee taxes and any other payroll deductions required by law) will be allocated to Class Members who do not opt out of the settlement (“Net Settlement Amount”).

Each Class Member’s settlement payment will be based on the number of Workweeks each Participating Class Member worked as an hourly employee during the “Class Period,” which is defined as May 1, 2009 to [date of preliminary approval] for individuals employed at Urban Outfitters and as October 29, 2009 to [date of preliminary approval] for individuals employed at Free People.

(a) Defendants will calculate the total aggregate number of Workweeks that all Participating Class Members worked as hourly employees during the applicable Class Period (“Total Workweeks”).

(b) The value of each individual Workweek shall then be determined by dividing the proceeds of the Net Settlement Amount by the Total Workweeks amount, resulting in the “Workweek Value.”

(c) An “Individual Settlement Payment” amount for each Participating Class Member will then be determined by multiplying the individual Participating Class Member’s number of Workweeks by the Workweek Value.

(d) The Individual Settlement Payment will be reduced by any required deductions for each Participating Class Member, including all employer and employee-side tax withholding or deductions.

(e) The entire Net Settlement Amount will be disbursed to all Participating Class Members who do not submit timely and valid Requests for Exclusion.

According to Defendants’ records, during the Class Period, you worked in an hourly position for a total of ____ Workweeks. Accordingly, your estimated gross payment before any required deductions, including employer and employee-side tax withholdings, is approximately $_____. Your actual Individual Settlement Payment may be more or less depending on potential adjustments to the number of Total Workweeks.

If you believe the information provided above is incorrect, please contact the Settlement Administrator and provide documentation supporting your position. Any documentation you provide must be postmarked by no later than ________. The Settlement Administrator will decide the dispute. Defendants’ records will be presumed correct, but the Settlement Administrator will evaluate the evidence submitted by each Class Member and will make the final decision as to the merits of the dispute.

IRS Forms W-2 and 1099 will be distributed to Participating Class Members and the appropriate taxing authorities reflecting the payments Participating Class Members receive under the settlement. Participating Class Members should consult their tax advisors concerning the tax consequences of the payments they receive under the settlement. For purposes of this settlement, 20% of each Individual Settlement Payment shall be allocated as wages for which IRS Forms W-2 will be issued, 40% will be allocated to alleged unpaid penalties for which IRS Forms 1099-MISC will be issued, and the remaining 40% will be allocated as interest for which IRS Forms 1099-MISC will be issued. Individual Settlement Payment checks returned as undeliverable and checks remaining uncashed for more than 120 days after issuance will be tendered to the California Department of Industrial Relations Unpaid Wage Fund (see Cal. Lab. Code § 96.6).




Your Options Under the Settlement Option 1 – Automatically Receive a Payment from the Settlement If want to receive your payment from the settlement, then no further action is required on your part. You will automatically receive your settlement payment from the Settlement Administrator if and when the settlement receives final approval by the Court and after all appeals (if any) are resolved. Option 2 – Opt Out of the Settlement If you do not wish to participate in the settlement, you may exclude yourself from participating by submitting a written request to the Settlement Administrator expressly stating as follows: “I wish to opt-out from this Settlement.” The written request for exclusion must include your full name, signature, address, telephone number, and last four digits of your Social Security number. Sign, date, and fax or mail (by First Class U.S. Mail or equivalent) the request using the contact information shown below:

Settlement Administrator c/o _____________ ________________ Fax No. __________ The written request to be excluded must be postmarked or faxed no later than __________, 2015. If you submit a request for exclusion that is not postmarked or faxed by that date, it will be rejected, and you will be included in the settlement class. Option 3 – Object to the Settlement If you wish to object to the settlement because you find it unfair or unreasonable, you must file an objection with the Court stating why you object. In objecting, you can ask the Court to deny approval of the Settlement, but you cannot ask the Court to order a larger settlement; the Court can only approve or deny the settlement. Your objection must include the following: (1) your full name, date of birth, signature, address, telephone number, and your approximate dates of employment at Urban Outfitters and/or Free People stores in California; (2) a written statement of all grounds for the objection accompanied by any legal support for such objection; (3) copies of any papers, briefs, or other documents upon which you base the objection; and (4) a statement about whether you intend to appear at the Final Approval/Settlement Fairness Hearing. You must file the objection with the Court and also mail a copy to the [Settlement Administrator Address] by no later than ___________, 2015. Late objections, and objections not containing any of the information noted above, will not be considered. By filing an objection, you are not excluding yourself from the settlement. To exclude yourself, you must follow the directions described above, under “Option 2 – Opt Out of the Settlement.” Please note that you cannot both object to the settlement and exclude yourself. You must choose one option only. If you wish, you may also appear at the Final Approval/Settlement Fairness Hearing on __________________________ at _____ _.m. in Courtroom 5 of the United States District Court, Northern District of California, located at 1301 Clay Street, Oakland, California 94612, to discuss your objection with the Court and the parties at your own expense. You may also retain an attorney to represent you at the hearing at your own expense.

If you choose Option 1, and if the Court grants final approval of the settlement, you will be mailed a check for your share of the settlement funds. In addition, you will be deemed to have released or waived (meaning you cannot sue) Defendants and their respective successors and predecessors in interest, subsidiaries, affiliates, trusts, brother-sister or otherwise related companies, and parents; all of their past or present officers, directors, shareholders, employees, agents, principals, heirs, representatives, accountants, auditors, consultants, partners, joint venturers, trustees, insurers, and reinsurers; and any attorney or law firm representing Defendants or the other Released Parties with regard to Plaintiffs’ asserted claims against Defendants for the following claims (“Released Claims):

All wage and hour claims, rights, demands, liabilities, and causes of action of every nature and description, which occurred during the period from May 1, 2009 to the date on which the Court grants Preliminary Approval (for Urban Employees) and from October 29, 2009 to the date on which the Court grants Preliminary Approval (for Free People Employees), arising from or related to the facts or claims litigated in the Actions against Defendants, whether




known or unknown, contingent or accrued, including without limitation statutory, constitutional, contractual, or common law claims for wages, damages, unpaid costs, penalties, liquidated damages, punitive damages, interest, attorneys’ fees, litigation costs, restitution, equitable relief, or any other relief, including claims based on the following categories of allegations: (i) all claims for unpaid overtime; (ii) all claims for meal and rest break violations; (iii) all claims for unpaid minimum wages; (iv) all claims for the failure to timely pay wages upon termination; (v) all claims for the failure to timely pay wages during employment; (vi) all claims for wage statement violations; (vii) all claims for unpaid vacation pay; (viii) all claims asserted through California Business & Professions Code §§ 17200, et seq., and/or California Labor Code §§ 2698, et seq. based on the preceding claims; (ix) all claims under the provisions of the California Labor Code and/or arising under the Wage Orders adopted by the California Industrial Welfare Commission that arise from or relate to the factual allegations alleged in the Actions; and (x) all claims that were or could have been asserted in the Actions that arise out of the same nucleus of operative facts (see International Union of Operating Engineers-Employers Const. Industry Pension, Welfare and Training Trust Funds v. Karr, 994 F.2d 1426, 1430 (9th Cir. 1993) (“res judicata bars not only all claims that were actually litigated, but also all claims that ‘could have been asserted’ in the prior action”; noting that whether the claim “arises out of the same transactional nucleus of facts [is] the criteria most stressed in our decisions”). Except as to Plaintiffs, the release expressly excludes claims that arise outside of the Class Period and unrelated claims, including but not limited to, claims for unemployment, disability, Workers’ Compensation, retaliation, and discrimination.

You will also be deemed to have waived and relinquished, to the fullest extent permitted by law, the provisions, rights, and benefits of Section 1542 of the California Civil Code as to the Released Claims, which provides that “[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.” If you choose Option 2, you will no longer be a Class Member, and you will (1) be barred from participating in the settlement, but you will not be deemed to have released the Released Claims; (2) be barred from filing an objection to the settlement; and (3) not receive a payment from the settlement. If you choose Option 3, you will still be entitled to the money from the settlement. If the Court overrules your objection, you will be deemed to have released the Released Claims and the provisions, rights, and benefits of Section 1542 of the California Civil Code, as described above. Regardless of the option you choose, you will not be retaliated against for exercising your rights.

Additional Information This Notice of Class Action Settlement is only a summary of the case and the settlement. For a more detailed statement of the matters involved in the case and the settlement, you may refer to the pleadings, the settlement agreement (titled “Joint Stipulation of Class Action Settlement and Release”), and other papers filed in the case. You may access these documents by visiting the Court’s Public Access to Court Electronic Records system at https://ecf.cand.uscourts.gov or by visiting the office of the Clerk of the Court for the United States District Court for the Northern District of California, 1301 Clay Street, Suite 400 S, Oakland, California 94612, between 9:00 a.m. and 4:00 p.m., Monday through Friday, excluding Court holidays. If you have questions regarding this notice, the settlement, or the date of the Final Approval/Settlement Fairness Hearing, please contact either the Settlement Administrator or Class Counsel.

LEAD CLASS COUNSEL

Raul Perez Capstone Law APC

1840 Century Park E., Suite 450 Los Angeles, CA 90067 Phone: 1 (855) 737-8026

SETTLEMENT ADMINISTRATOR

[Enter Information]

PLEASE DO NOT CONTACT THE CLERK OF THE COURT, THE JUDGE, DEFENDANTS, OR DEFENDANTS’ ATTORNEYS WITH INQUIRIES.



https://ecf.cand.uscourts.gov/

Exhibit B



[Administrator] P.O. Box ____________ ____________, CA ____________ Berry v. Urban Outfitters Wholesale, Inc. United States District Court, Northern District of California Do Not Throw Away, You May Be Eligible for a Settlement Payment

John Smith Street Address

City, State Zip Code

IMPORTANT NOTICE



Case 4:13-cv-02628-JSW Document 97-1 Filed 10/30/15 Page 1 ... · Arnab Banerjee (SBN 252618)...

Documents

Transcript of Case 4:13-cv-02628-JSW Document 97-1 Filed 10/30/15 Page 1 ... · Arnab Banerjee (SBN 252618)...