1 JANETTE WIPPER (#275264) CONFORMED COPY

ORIGINAL FILED
Chief Counsel Superior Court 01 California
2 MARI MAYEDA (#110947) County of Los Angeles
Associate Chief Counsel
3 GRACE SHIM (#310692) JAN 08 2020
Senior Staff Counsel
Sherri R. Carter, Executive Otticer/Clerk of Court
4 IRINA TRASOVAN (#2903 72)
Staff Counsel By: Isaac Lovo, Deputy
5 KAITLIN TOYAMA (#318993)
Staff Counsel
6 DEPARTMENT OFFAIR EMPLOYMENT
AND HOUSING
7 2218 Kausen Drive, Suite 100
Elk Grove, CA 95758
8 Telephone: (9 16) 478-7251
Facsimile: (888) 382-5293
9
Attorneys for the DFEH
10 (Fee Exempt, Gov. Code,§ 6103)

11

12 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

13 IN AND FOR THE COUNTY OF LOS ANGELES

14
MELANIE MCCRACKEN, an individual; Case No. 18STCV03957
15 JESSICA NEGRON, an individual; and
GABRIELA DOWNIE, an individual, THE DEPARTMENT OF FAIR
16 EMPLOYMENT AND HOUSING'S
OBJECTION TO PLAINTIFFS'
17 Plaintiffs, MOTION FOR PRELIMINARY
vs. APPROVAL OF SETTLEMENT
18
RIOT GAMES , INC. , a Delaware Hearing Date: January 22, 2020
19 Corporation; and DOES 1 through 10, Time: 1:30 p.m.
inclusive, Dept.: SS-6
20 Judge: Hon. Elihu M. Berle

21 Defendants. Action Filed: November 6, 2018

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McCracken, et al. v. Riot Games, Inc.

DFEH's Objection to Plai ntiffs ' Motion for Preliminary Approval of Settlement
 1 TABLE OF CONTENTS

2 I. INTRODUCTION ................................. ...................... ............. ............................................. ......... l

3 II. BACKGROUND ........................... ........ ......................................................................................... 4

A. The Government has a Pre-Existing, Class Discrimination Investigation of Riot Games ........ .4
4
B. After the Government's Investigation Began, the Instant Lawsuit was Filed and Settled Quickly
5
before any Formal Discovery, Motion Practice or Class Certification ........................ ...................5
6
C. Riot Publicized the Proposed Pre-Certification Class Settlement and Declared No Systemic
7 Discrimination Exists at Riot, But Withheld the Agreement and its Terms from the
Government and Class for Over 3 Months, While the Parties Missed Court-Ordered
8 Deadlines ............................................ .............. .........................................................................6
D. Riot Asserts the Proposed Class Settlement Will "Moot" the Government Investigation ........ .6
9

10 III. ARGUMENT ................................ ................................................................................... ............... 7

11 A. Preliminary Approval Should be Denied Because Riot Seeks to Impede a Pre-existing

Government Investigation through the Proposed Settlement and It is Not Fair, Adequate or
12 Reasonable to the Class ...................................................... ........................................................ 7
13
1. The Proposed Settlement Severely Undervalues the Claims which, Using Plaintiffs'
14 Methodology and the Government's Data, Have a Potential Maximum Backpay Value
of Over $400 Million ............................ ...................................................... ........ .............. 8
15
a. The Lawsuit's Lack of Discovery Limits the Factual Record before the Court ......... 9
16
b. Plaintiffs' Analysis is Inadequate .......... ...................................... ... ........................... .9
17
c. Plaintiffs' Backpay Calculation is Erroneous ........................................................... 1O
18
2. The Settlement Contains No Injunctive Relief ............. ........... ....... .. ... ............ ............... 11
19
3. Possible Collusion or Self-Dealing and the Risk of a "Reverse Auction" Are Present.. 11
20
a. Side Deals are Present. ..................... ..... ................ .......................................... .......... 12
21
b. Evidence of a "Reverse Auction" is Present .................................. ... ................ ........ 12
22
c. The Class Recovery is Small and Inadequate ........................................................... 13
23
d. A "Clear Sailing" Provision is Present .. .. ....... ......................................... ............ ..... 13
24
e. Procedural Irregularities Raise Additional Red Flags .......................... .................... 14
25
4. The Objection of Government Participants and Prejudice to DFEH Weigh Against
26 Approval .......................................................... ..... ....... ......................... .......................... 14
27
5. Plaintiffs' Counsel's Lack of Experience with Class Pay Claims Weighs Against
28 Approval ....................... ...... ...................................................................... ...................... 15

McCracken, et al. v. Riot Games, Inc., et al.

DFEH's Objection to Plaintiffs' Motion for Preliminary Approval of Settlement
 1 B. The Settlement Class Should Not be Ce1iified ........................ ................................................ 16
2 1. The Proposed Class Representatives and Counsel Are Inadequate ............. ................... 17
3
2. The Proposed Representatives Claims Are Atypical ........................... ........................... I 8
4
C. The Court Should Fully Infmm the Class of the Government Actions and Objections, Clarify
5 that the Proposed Settlement Does Not Moot Them, and Permit Discovery ........................... 18

6 IV. CONCLUSION ........................................................................................................................... 19

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McCracken, et al. v. Riot Games, Inc., et al.
DFEH's Objection to Plaintiffs' Motion for Preliminaty Approval of Settlement
 1 TABLE OF AUTHORITIES

2 FEDERAL CASES

3 Alaniz v. California Processors, Inc.,

4 (N.D. Cal. 1976) 73 F.R.D. 269 ............. .................................................................................. ........... .. 1

S Amchem Products, Inc. v. Windsor,

6 (1997) 521 U.S. 591 .......................................................................................................................... 7, 1

7 California v. IntelliGender, LLC,

8 (9th Cir. 2014) 771 F.3d 1169 ..................................... ............ ............................................................. 1

9 Dept. ofFair Empl. and Haus. v. Law School Admission Council, Inc.,

10 (N.D. Cal. 2013) 941 F.Supp.2d 11 59 ............................................................................................ 15, 1

11 E.E. 0. C. v. Pemco Aeroplex, Inc.,

12 (11th Cir. 2004) 383 F.3d 1280 ............................................................................................................ 1

13 E.E. 0. C. v. Waffle,

14 House (2002) 534 U.S. 279 .................. ........................................................................................... 15, 1

15 Ellis v. Costco Wholesale C01p.,

16 (9th Cir. 2011) 657 F.3d 970 ...................... ... .......................... ............................................................. 11

17 Figueroa v. Sharper Image Corp.,

18 (S.D. Fla. 2007) 517 F.Supp.2d 1292 ................................................................................. 10, 13, 14, 1

19 General Tel. Co. of Southwest v. Falcon,

20 (1982)457U.S.147 ... ........................................................................................................................... 1

21 General Tel. Co. of the Northwest, Inc. v. E.E.O.C.,

22 ( 1980) 446 U .S. 3 18 .............................................................................................................................. 1

23 Gibson v. Local 40, Supercargoes and Checkers ofIntern. Longshoremen 's and Warehousemen's

24 Union,

25 (9th Cir. 1976) 543 F.2d 1259 .............................................................................................................. 1

26 Haralson v. US. Aviation Services Corp.,

27 (N.D. Cal. 2019) 383 F.Supp.3d 959 ............................. .... ................................................................. 8,

28
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McCracken, et al. v. Riot Games, Inc., et al.
DFEH's Objection to Plaintiffs' Motion for Preliminary Approval of Settlement
 1 Hojinann v. Dutch LLC,

2 (S.D. Cal. 2015) 317 F.R.D. 566 .................................... .................................................................. 7, 1

3 In re Literary Works,

4 (2d Cir. 2011) 654 F.3d 242 .................................... .............................................................................. 1

5 In re Volkswagen "Clean Diesel" Mldg., Sales Practices, and Prod's Liab. Litig.,

6 (N.D. Cal. 2017) 229 F.Supp.3d 1052 ........................................................................................ 7, 12, 1

7 Rodriguez v. West Publishing Corp.,

8 (9th Cir. 2009) 563 F.3d 948 ......................................................................................................... passi

9 Roes v. SFBSC Management,

10 (9th Cir. 2019) 944 F.3d 1035 .............................................................................................................. ..

11 True v. American Honda Motor Co.,

12 (C.D. Cal. 2010) 749 F.Supp.2d 1052 ............. .................................................................... .......... passi

13 STATE CASES

14 7-Eleven Owners for Fair Fran. v. Southland Corp.,

15 (2000) 85 Cal.App.4th 11 35 ..................... .................................................................................... 1, 9, 1

16 Clark, et. al. v. American Residential Services LLC,

17 (2009) 175 Cal.App.4th 785 ............................................................................. ............................. passi

18 Dunk v. Ford Motor Co.,

19 ( 1996) 48 Cal.App.4th ................. .... ....................................... ......... ................................................... 1,

20 Kullar v. Foot Locker Retail, Inc.,

21 (2008) 168 Cal.App.4th 116 .......................................................................................................... passi

22 People v. Pac. Land Research Co.,

23 (1977) 20 Cal.3d 10 ........................................................................................... ................................. .. 1

24 Reed v. United Teachers Los Angeles,

25 (2012) 208 Cal.App.4th 322 ..................................................................................................... 5, 7, 8, 1

26 State Personnel Ed. v. Fair Empl. & Haus. Com. ,

27 (1985) 39 Cal.3d 422 ................ ........................... ........................................................ .... ... ........ .......... ..

28

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McCracken, et al. v. Riot Games, Inc., et al.
DFEH's Objection to Plaintiffs' Motion for Prelimina1y Approval of Settlement
 1 Trujillo v. North County Transit Dept.,

2 (1998) 63 Cal.App.4th 280 ................................................................................................................... 1

3 Wilson v. Superior Court,

4 (1987) 194 Cal.App.3d 1259 ................................................................................................................ 11

5 STATUTES

6 Cal. Code Regs., tit. 2, § 11023, subd. (a) ................................................................................................ 1

7 Cal. Code Regs. , tit. 2, § 11023, subd. (a) ......................................................... ....................................... 1

8 Cal. Rules of Court, rule 3. 769 .................................................... ............................................................... 1

9 Code Civ. Proc., § 382 ..... ..................................... ....... ........................................................ ....................... 1

10 Gov. Code,§ 11180 ................................................................................................................................ 1,

11 Gov. Code, § 12900 ......................... ....................................... ................................................................ 1,

12 Gov. Code, § 12940 .................................................................................................................... .............. 1

13 Gov. Code,§ 12961 .................................................................................................................... .............. 1

14 Gov. Code, § 12965 ....................................................................................................... ........................... 1

15 Lab. Code,§ 1197.5 ....................................................................................................... ............................ .

16 Lab. Code, § 2698 ....................................................................................................................................... 1

17 OTHERAUTHORITIES

18 Manual for Complex Litigation, Fourth,§ 21.643 ..................................................................................... .

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McCracken, et al. v. Riot Games, Inc., et al.
DFEH's Objection to Plaintiffs' Motion for Preliminary Approval of Settlement
 1 I. INTRODUCTION
2 Like the Division of Labor Standards and Enforcement (DLSE), 1 the Department of Fair

3 Employment and Housing (DFEH) opposes the proposed class action settlement before the Court. It

4 contains an overly-broad release of all sex discrimination, harassment, and related claims of all women

5 who worked in any capacity at Riot Games, Inc. (Riot) during the last five years. In exchange, class

6 members will receive minimal benefits. A net total of only $6 million will be paid directly to the class;

7 based on Plaintiffs' own methodology, this amounts to less than 2% of the over $400 million potential

8 maximum backpay owed to female employees. 2 No enforceable changes to employment policies, at a

9 company alleged to be rife with sexism, are part of the settlement. Its signatories, Riot and two former

10 workers - one, a temporary contractor who worked only eight months, and the other, an hourly

11 employee who left the company nearly three years ago - nonetheless claim the settlement is w01ihy of

12 judicial approval. It is not. It falls far short of basic fairness and the class certification standards

13 designed to protect absent class members in the settlement approval process.3 The Cerni should deny

14 preliminary approval.

15 Before the proposed settlement was reached or even the underlying lawsuit was filed, the DFEH

16 opened an investigation of class sex discrimination, harassment and related violations by Riot. It

17 thereafter obtained, pursuant to its investigation and enforcement authorities,4 multiple years of

18 employee and tax records, among other information, from Riot, after filing an enforcement action to

19

20 1
See DLSE Mot. for Leave to Intervene at 2:11-3:18. The DLSE and the DFEH are the state entities
21 that enforce the labor and employment laws at issue in the proposed class action settlement, including
the Equal Pay Act, (Lab. Code, § 11 97 .5); the Private Attorney General Act (PAGA), (Lab. Code, §
22 2698 et seq.); and the Fair Employment and Housing Act (FEHA), (Gov. Code,§ 12900 et seq.).
2
This estimate is based upon Plaintiffs' methodology described in their preliminary approval motion
23 (Pis.' Mot. for Prelim. Approval at 9:5-13.), and the records Riot produced to DFEH in its investigation.
Specifically, it is the total wage differential between male and female employees based on Riot
24 employees' W-2 wage and tax records for 2015, 2016, 2017, and 201 8, plus interest. It does not accoun
for any compensatory, punitive or other damages exposure related to the class-wide harassment or
25 retaliation claims.
3
The procedure for approval of a class settlement is a two-step process, including preliminary approval
26 and a final fairness hearing. At the first stage, the Court makes a preliminary determination of whether
settlement certification is warranted and whether the proposed settlement is fair, adequate or reasonable.
27 (Cal. Rules of Cerni, rule 3.769; Code Civ. Proc., § 382; see also Dunk v. Ford Motor Co. (1996) 48
Cal.App.4th 1801; Kullar v. Foot Locker Retail, Inc. ("Kullar") (2008) 168 Cal.App.4th 116, 129; 7-
28 Eleven Owners for Fair Fran. v. Southland Corp. (''7-Eleven") (2000) 85 Cal.App.4th 11 35, 1151.)
4
See (Gov. Code,§ 12900 et seq); (Gov. Code,§ 11180 et seq.)
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McCracken, et al. v. Riot Games, Inc., et al.
DFEH's Obj ection to Plaintiffs' Motion for Preliminary Approval of Settlement
 1 compel their production. 5 Obtaining the most complete and accurate information to evaluate the

2 allegations of sex discrimination was paramount to the investigation. It also provides the DFEH with a

3 sound basis to relay an " informed evaluation of the fairness of the settlement" to the Court. 6

4 Even a cursory review of Plaintiffs' analyses and estimates underlying the settlement reveals a

5 staggering level of error. For example, when applying Plaintiffs ' methodology, as described in their

6 preliminary approval motion, to the total compensation and stock option information obtained by the

7 DFEH, 7 Riot's potential maximum exposure for the backpay claims is not $38.8 million as Plaintiffs

8 posit, but more than ten times that amount for female employees. Additionally, while gender disparities

9 against female salaried/exempt employees and in equity/stock compensation account for a significant

10 portion of the underpayment to female employees, the settlement does not analyze or value them. This

11 underestimates the pay disparities and backpay damages, particularly for female salaried/exempt

12 employees. Similarly, Plaintiffs set forth no analysis of potential liability exposure related to the class

13 sex harassment, retaliation, or failure to prevent discrimination claims, effectively valuing them at $0.

14 The class definition covers all women who worked at the company for any period and in any

15 capacity - whether as a temporary agency contractor (temp), hourly/nonexempt employee (hourly), or

16 salaried/exempt employee (salaried). 8 It is further divided into two subclasses but combines all female

17 hourly and salaried employees into one subclass. In effect, salaried employees, who comprise about

18 72% of the employee subclass and who suffered the most significant disparities, are afforded no tailored

19 relief, nor their own class counsel or representative. Neither proposed class representative held a

20 salaried employee position. Plaintiffs' counsel even acknowledges that the broader class was only

21 approximated;9 demonstrating that counsel either does not lmow or chose not to disclose the scope of th

22 class or subclasses despite purportedly analyzing their compensation and representing their interests.

23 5 D ept. ofFair Empl. & Haus. v. Riot Games, Inc., et al. (Super. Ct. L.A. County, 2019, No.
24 19STCP02363) DFEH Petition to Compel (June 12, 2019).
6 Clark, et. al. v. American Residential Services LLC ("Clarie') (2009) 175 Cal.App.4th 785, 790;

25 Kullar, supra, 168 Cal.App.4th at p. 120.)

7 See footnote 2; see also Tencent, Tencent Annual Report 2015 (March 17, 2016)

26 <http ://www.annualreports.com/HostedData/AnnualReportArchive/t/OTC TCEHY 2015 .pdf>.

8
Settlement Agreement at~ 29 ["' Settlement Class Members' or ' Settlement Class'means all current
27 and fonner female Riot employees and female individuals hired by a Temporary Agency Contractor to
work at Riot ... in California from November 6, 2014 through the date of Preliminary Approval .... "];
28 id at~~ 30-31.
9
According to the settlement agreement, Plaintiffs' counsel does not have access to the complete list of
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M cCracken, et al. v. Riot Games, Inc., et al.
DFEH's Objection to Plaintiffs ' Motion for Preliminmy Approval of Settlement
 1 Riot, the two proposed class representatives, and their proposed class counsel executed separate

2 settlements but failed to fully disclose their existence or terms to the Cmnt or the class. The original

3 plaintiff, Melanie McCracken, who withdrew as a class representative when the proposed class

4 settlement was publicly filed, chose to resolve her claims separately for an undisclosed amount, rather

5 than represent the class. (Pls.' Mot. for Prehm. Approval at ii, fn. l .) The DFEH only recently

6 uncovered that the remaining proposed class representatives, Negron and Downie, also executed side

7 agreements with Riot and their counsel, as have several other women represented by Plaintiffs' counsel.

8 Other than the existence of McCracken's separate agreement, these side deals were not disclosed to the

9 Court. These failures make the patties' representations, such as the proposed class representatives '

10 $10,000 enhancement and the proposed class counsel's $3.3 million in fees, potentially misleading. 10

11 Attempting to access complete information, the DFEH requested the side agreements after the proposed

12 settlement was filed but Plaintiffs and Riot refused to provide them.

13 The attorneys' fees raise further concerns. The settlement includes a $3.3 million "clear sailing"

14 attorneys' fee provision; yet, the patties entered mediation approximately eight months after filing the

15 case and then settled in principle one month thereafter. Only status and scheduling conferences and

16 informal discovery were undertaken. Because the victims' fund pays Riot 's portion of employer payroll

17 taxes, the available distribution to female employees is reduced to approximately $6 million - resulting

18 in a fee which is over 50% of the net class payment.

19 Together, these deficiencies point to a proposed settlement that potentially misleads the class,

20 attempts to evade a government investigation, and also caused the DLSE to seek intervention. While

21 delaying the DFEH investigation, 11 Riot pursued a sweeping settlement deal with Plaintiffs' counsel

22 who were negotiating from a position of wealrness, who were subject to class certification and

23 arbitration agreements unlike the government, and who were also negotiating a class settlement and side

24 agreements at a similar time with Riot. Riot then publicly announced the proposed settlement, withheld

25
class members. (See Settlement Agreement at 1 46; see also Pis.' Mot. for Prehm. Approval at 18 :26-27
26 ~"There are approximately l ,000 Class Members here. "].)
0
Rodriguez v. West Publishing Corp. (9th Cir. 2009) 563 F.3d 948, 959 [observing "that the parties'
27 failure to disclose their agreement to the comt, and to the class, violated the contracting representatives'
fiduciary duties to the class and duty of candor to the court."].
11
28 Dept. ofFair Empl. & Haus. v. Riot Games, Inc., et al. (Super. Ct. L.A. County, 2019, No.
19STCP02363) DFEH Petition to Compel (June 12, 2019).
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McCracken, et al. v. Riot Games, Inc., et al.
DFEH's Objection to Plaintiffs' M otion for Preliminary Approval of Settlement
 1 information from the class, and erroneously claimed the settlement would "effectively moot" in some

2 manner the pre-existing government investigation. Preliminary approval of such a settlement is not

3 warranted. Should the Court grant preliminary approval, the class notice should advise absent class

4 members about (i) the DFEH's pre-existing and pending investigation and objection, (ii) the DLSE's

5 motion to intervene and objection, and (iii) Riot's side agreements with the proposed class

6 representatives and proposed class counsel's other clients. The DFEH also requests that the Court

7 clarify for the pm1ies, absent class members, and the government that - contrary to statements by Riot's

8 counsel - the DFEH's investigation is not mooted in whole or in part by this private settlement.

9 II.BACKGROUND

10 A. The Government has a Pre-Existing, Class Discrimination Investigation of Riot Games

11 Before the instant case was filed, the DFEH opened an investigation of Riot and associated

12 entities concerning widespread discrimination against female applicants and employees. (Declaration o

13 Irina Trasovan ("Trasovan Dec."),~ 2.) Specifically, the DFEH issued a Director's Complaint on behal

14 of a group or class of victims for alleged violations of the Fair Employment and Housing Act,

15 Government Code section 12900 et. seq. (Ibid.) In contrast to Plaintiffs who conducted no formal

16 discovery, by June 12, 2019, the DFEH not only had already served numerous formal investigative

17 discovery requests but also petitioned to compel responses in court. 12 (Id. at~ 3.) Shortly thereafter, in

18 July 2019, Riot's and Plaintiffs' formal mediation began. Riot provided the DFEH with pay data on

19 August 2, 2019 and on the following day, reached a settlement in principle of the instant class claims.

20 (Ibid.; McCracken Request for Dismissal, Saba Dec., ~ 5.)

21 In September 2019, Riot began objecting to the DFEH's investigative discovery arguing that the

22 information sought in the investigation "will soon be effectively mooted by the pending class action

23 settlement in McCracken v. Riot Games." (Trasovan Dec.,~ 4, Ex. A.) Riot asse1ied that "the claims

24 brought by the DFEH on behalf of Riot employees . .. will be released by Riot employees as part of that

25 settlement." (Ibid.) Riot has also recently objected to the DFEH's requests as "unduly burdensome,

26 harassing, and duplicative in light of the pending putative class action of McCracken et al. v. Riot

27
12
28 As recognized by the Courts, DFEH has decades of expertise analyzing and investigating employmen
discrimination claims. (State Personnel Bd. v. Fair Empl. & Haus. Com. (1985) 39 Cal.3d 422, 431.)
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McCracken, et al. v. Riot Games, Inc., et al.
DFEH's Objection to Plaintiffs' Motion for Preliminaiy Approval of Settlement
 1 Games, Inc." (Id. at ,r 5; Reed v. United Teachers Los Angeles ("Reecf') (20 12) 208 Cal.App.4th 322,

2 330 [potentially prejudiced party has a right to detennination of its objections to class settlement].)

3 Upon receipt of the proposed settlement filed with the Court, the DFEH closely reviewed its

4 terms against the information uncovered in its investigation, and now files this objection to assist the

5 Comt and the proposed class. The DFEH is authorized by the legislature to " [p]resent information ...

6 developed from the investigation of unlawful activity to a comt ... in connection with any action or
7 proceeding." (Gov. Code,§ 111 81.) In connection with class action settlements in particular, such

8 government participation is strongly encouraged. (Barbara J. Rothstein and Thomas E. Willging,

9 Federal Judicial Center, Managing Class Action Litigation: A Pock.et Guide for Judges, 12, 17 (3d ed.

10 2010), citing Manual for Complex Litigation, Fomth, § 21.643 ("Fed. Jud. Ctr. Class Action Guide").) 13

11 B.
before any Formal Discovery, Motion Practice or Class Certification
12
13 The instant lawsuit was filed in November 201 8 on behalf of all women who worked at Riot,

14 alleging twelve causes of action under various laws including the FEHA, Unfair Competition Law, the

15 Labor Code, and the California Equal Pay Act. Thus far, this case has involved only status and

16 scheduling conferences with the court and stipulations; no fonnal discovery was conducted. (Trasovan

17 Dec., ,r 6.) Similarly, Gabriela Downie's individual civil complaint has only involved status conference

18 and a demurrer which was pending at the time of dismissal. (Id. at ,r 7.)

19 Having conducted no formal or verified discovery, these Plaintiffs are not in a position to fully

20 assess the broad and sweeping allegations of p ervasive discrimination by Riot - allegations which woul

21 take time and expertise to adequately evaluate. (Second Amended Complaint ("SAC").) Plaintiffs

22 allege, inter alia : 14

23 • "Riot Games is notorious for fostering a culture of sexism and mish·eatment towards women.
[Female employees] endured years of discrimination, harassment, and retaliation without any
24 corrective action by their employer." (SAC, ,r 9.)
• "Women were made fun of and sexually obj ectified. There is even an ongoing email chain of"Riot
25 Games Hottest Women Employees" which rates the "hotness" of each female on the list. (SAC, ,r 11.)

26 13
Available at <https://www.fjc.gov/sites/default/files/20 l 2/ClassGd3.pdf>.
14
27 See also Cecilia D ' Anastasio, Inside the Culture of Sexism at Riot Games (Aug. 7, 201 8), available at
https://kotaku.com/inside-the-culh1re-of-sexism-at-riot-games-1828165483; Sam Dean, Allegations of
28 sexism and harassment roil Riot Games, the developer of 'League ofLegends' (Oct. 14, 2018), available
at https://www.latimes.com/business/technology/la-fi-tn-riot-games-culhlfe-20181014-story.html.
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McCracken, et al. v. Riot Games, Inc., et al.
DFEH' s Objection to Plaintiffs' Motion for Preliminary Approval of Settlement
 1 • "Women are required to participate and tolerate crude male behavior which include [sic] jokes
about sex, defecation, masturbation, rape and tmiure . Women who do not join in these adolescent
2 humor jokes, are classified as 'snobby' and unwilling to fit in with the company." (SAC, ,r 11.)
• "A female employee discovered an email chain discussing what it would be like to 'penetrate
3 her,' in which a colleague added that she would be a good target to sleep with and not call again."
(SAC, ,r 15.)
4 • "A former male employee was allowed to remain in a position of leadership despite regularly
making sexual comments in the workplace and drugging and raping another Riot Games '
5 employee." (SAC, ,r 15.)

6 C. Riot Publicized the Proposed Pre-Certification Class Settlement and Declared No Systemic
Discrimination Exists at Riot, But Withheld the Agreement and its Terms from the
7 Government and Class for Over 3 Months, While the Parties Missed Court-Ordered
Deadlines
8

9 Less than nine months after this case was filed, " [o ]n August 3, 2019 the parties reached a

10 settlemeot agreement in principle as to the class action portion of Plaintiffs' lawsuit." (McCracken

11 Request for Dismissal, Saba Dec., ,r 5.) Later that month, Riot publicly announced the settlement and

12 proclaimed that "we can confidently state that gender discrimination (in pay or promotion), sexual

13 harassment, and retaliation are not systemic issues at Riot." (Trasovan Dec., ,r 8, Ex. D.) After Riot's

14 announcement, the DFEH requested a copy of the settlement. (Id. at ,r 9.) Riot did not provide a copy,

15 stating that it would not do so until the settlement was publicly filed. (Id. at ,r 10.) The DFEH

16 continued to request but did not receive a copy until three months after Riot's public announcement.

17 (Jd.at,rll.)

18 After Riot's public announcement, Plaintiffs obtained a preliminary approval hearing date of

19 November 6, 2019 but instead of timely filing papers, filed a stipulated request for an extension of time

20 which was granted by the Court with new deadlines set. (Id. at ,r 12, Ex. E.) Plaintiffs then missed the

21 stipulated deadline for filing the settlement papers and the parties m issed the deadline for filing a status

22 report even though both were dates ordered by the Comi. (Id. at ,r,r 13-14.) Plaintiffs incorrectly

23 represented facts regarding the filing of settlement papers necessitating an on-the-record correction by

24 judicial staff and then failed to file the Second Amended Complaint "concurrently with" the settlement

25 papers as required by the Agreement itself. (Id. at ,r 15, Ex. F; id. at ,r 16.)

26 D. Riot Asserts the Proposed Class Settlement Will "Moot" the Government Investigation

27 Shortly after publicly announcing the proposed class settlement, Riot revealed its intended use.

28 In a letter to the DFEH dated September 6, 2019, Riot relied on the undisclosed and unapproved class

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McCracken, et al. v. Riot Games, Inc., et al.
DFEH's Objection to Plai ntiffs' Motion for Preliminary Approval of Settlement
 1 settlement agreement to impede the government investigation, objecting to the DFEH's investigative

2 requests on the basis that they "will soon be effectively mooted by the pending class action settlement in

3 McCracken v. Riot Games." (Trasovan Dec.,~ 4, Ex. A) Without regard to the fact that the Court had

4 not yet certified a class, much less preliminarily approved the settlement, Riot infonned the government

5 that "the claims brought by the DFEH on behalf of Riot employees ... will be released by Riot

6 employees as part of that settlement." (Ibid.)

7 The Court should neither provisionally certify the class nor preliminarily approve the Settlement.
8 III.ARGUMENT

9 A. Preliminary Approval Should be Denied Because Riot Seeks to Impede a Pre-existing

Government Investi ation throu h the Pro osed Settlement and It is Not Fair Ade uate o
10 Reasonable to the Class

11 In reviewing a class settlement, the court has "a fiduciary responsibility" to guard the rights of

12 absent class members. (Kuller, supra, 168 Cal.App.4th at p. 129.) The settlement proponents bear the

13 burden of proving that it is "fair, reasonable and adequate to all concerned," and "not the product of

14 fraud, overreaching or collusion." (Reed, supra, 208 Cal.App.4th at p. 337.) "Motions for preliminary

15 approval of class settlements often fail on the first round." (Weil & Brown, Cal. Practice Guide: Civil

16 Procedure B efore Trial (The Rutter Group June 2019), ~ 14: 138.21a; Hofmann v. Dutch LLC (S.D. Cal.

17 2015) 317 F.R.D. 566, 579 [denying preliminary approval].)

18 Particularly careful scrutiny is applied where, as here, a court reviews a settlement before a class

19 has been certified. (Amchem Products, Inc. v. Windsor (1997) 521 U.S . 59 1,620 [review of settlement-

20 only certification requires "undiluted, even heightened, attention in the settlement context."]; In re

21 Volkswagen "Clean Diesel " Mktg., Sales Practices, and Prod's. Liab. Litig. ("Volkswagen") (N.D. Cal.

22 2017) 229 F.Supp.3d 1052, 1064 ["Pre-class certification settlements 'must withstand an even higher

23 level of scrutiny for evidence of collusion or other conflicts of interest than is ordinarily required .. . ."'].)

24 Whether settlement proponents have m et their burden is determined by several factors. Courts

25 generally consider the strength of the plaintiffs' case and the amount offered in settlement; the extent of

26 discovery completed and the stage of the proceedings; the experience of counsel; and the presence of a

27 governmental participant; among other factors. (Reed, supra, 208 Cal.App.4th at p. 336; see also

28 Kullar, supra, 168 Cal.App.4th at p. 128 [reversing trial court's approval of settlement where

-7-
McCracken, et al. v. Riot Games, Inc., et al.
DFEH' s Objection to Pla intiffs' Motion for Preliminary Approval of Settlement
 1 information to approve settlement was insufficient]; Clark v. American Residential Services LLC

2 ("Clarie') (2009) 175 Cal.App.4th 785 , 798 [same].) Prejudice to the DFEH's interests or rights is

3 therefore a factor here. (Reed, supra, 208 Cal.App.4th at pp. 328-329.) Because all factors weigh

4 heavily against approval of the settlement, Plaintiffs have not met their burden. 15

5 1. The Proposed Settlement Severely Undervalues the Claims which, Using Plaintiffs'
Methodology and the Government's Data, Have a Potential Maximum Backpay Value
6 of Over $400 Million
7 Undertaking the necessary "independent evaluation" of the settlement value requires a develope

8 factual record before the Court. Without such record, the court has no "information about the nature an

9 magnitude of the claims in question and the basis for concluding that the consideration being paid for

10 the release of those claims represents a reasonable compromise." (Kullar, supra, 168 Cal.App.4th at pp.

11 130, 133; Haralson v. U. S. Aviation Services Corp. (N.D. Cal. 2019) 383 F.Supp.3d 959,970 [rejecting

12 settlement where only "minimal information" was provided as to value of class claims].)

13 Here, Plaintiffs calculate "the possible maximum exposure" at $38.8 million and "minimum

14 exposure" at $780,000 based on "various factors" and minimal data. (Pis.' Mot. for Prelim. Approval at

15 2: 15, 9:4-24, 16:5.) No expert analysis is included in the preliminary approval motion for the Court.

16 Plaintiffs also provide no value or information about either compensatory or punitive damages exposure

17 related to class-wide sex harassment, retaliation, or failure to prevent discrimination claims. This falls

18 far short of the information necessary to conduct "an independent evaluation" of the settlement value.

19 By contrast, the DFEH's estimate is based on a more complete record and analysis from its

20 investigation. Applying Plaintiffs' methodology to calculate potential maximum exposure using the

21 total compensation and stock option information in tax and other records obtained by the DFEH , the

22
15
23 Plaintiffs are not entitled to the initial presumption that their pre-certification settlement is fair
because they cannot meet all relevant factors (e.g., arms-length bargaining; infmmation sufficient to
24 allow the court and counsel act intelligently; counsel experienced in similar litigation; and a small
percentage of objectors). (Reed, supra, 208 Cal.App.4th at p. 337 [reversing approval of a settlement
25 because trial court failed to independently assess objections]; Roes v. SFBSC Management (9th Cir.
2019) 944 F.3d 1035 [reversing district court approval of pre-certification settlement; "we not only have
26 never endorsed applying a broad presumption of fairness, but have actually required that courts do the
opposite-by employing extra caution and more rigorous scrutiny .. . prior to class certification."].)
27 Even if applicable, courts must independently and objectively analyze a settlement to determine whether
it is in the best interest of those whose claims will be extinguished or rights prejudiced. (Kullar, supra,
28 168 Cal.App.4th at pp. 129-130; Clark, supra, 175 Cal.App.4th at pp. 799-800; Reed, supra ,208
Cal.App.4th at p. 338.)
-8-
McCracken, et al. v. Riot Games, Inc., et al.
DFEH's Objection to Plaintiffs ' Motion for Preliminaiy Approval of Settlement
 1 potential "maximum exposure" in backpay owed to female employees alone exceeds $400 million.

2 (Trasovan Dec.,~ I 7.) This estimate relies on W-2 and other records from 2015, 2016, 2017, and 2018,

3 as well as 2019 projected values, and includes interest. (Ibid.)

4 a. The Lawsuit's Lack of Discovery Limits the Factual Record before the Court

5 No formal discovery occmrnd in the underlying lawsuit. (Pls.' Mot. for Prelim. Approval 2: 15,

6 16:5; Kullar, supra, 168 Cal.App.4th at p. 129 [overturning approval of settlement where no formal

7 discovery occurred].) Where plaintiffs have conducted no formal discovery and presented minimal

8 support for the settlement, a trial court should reject the settlement. (Kullar, supra, 168 Cal.App.4th at

9 pp. 121-122.) As one Court of Appeals noted, reversing a trial comt's approval of a settlement under

10 similar circumstances:

11 Whatever infonnation may have been exchanged during the mediation, there was nothing
before the court to establish the sufficiency of class counsel's investigation other than their
12 assurance that they had seen what they needed to see. The record fails to establish in any
meaningful way what investigation counsel conducted or what information they reviewed
13 on which they based their assessment of the strength of the class members ' claims, much
less does the record contain information sufficient for the court to intelligently evaluate the
14 adequacy of the settlement.
15 (Id. at p. 129; see also Clarie, supra, 175 Cal.App.4th at pp. 803-804 [overturning approval of class

16 settlement lacking sufficient information].)

17 Here, the factual record now before the Court also lacks substance. Only an "informal exchange

18 of discovery" occuned between the parties, and as a result, Plaintiffs made estimates for the settlement

19 value without much explanation or suppo1t. (Pls.' Mot. for Prehm. Approval at 2:15.) As also noted by

20 the DLSE, more infomrntion is necessary to withstand scrutiny under relevant standards. 16

21 b. Plaintiffs' Analysis is Inadequate

22 Plaintiffs claim to have conducted a pay analysis with the "assistance of experts." (Pls.' Mot. fo
23 Prelirn. Approval at 8:7.) No expert, however, is named in Plaintiffs' preliminary approval motion or
24 supporting declaration, and no expert analysis or declaration is attached. By claiming to have done a
25
16
26 Compare Kullar and Clarie with 7-Eleven, supra, 85 Cal.App.4th at p. 1149 ['"vigorous, aggressive
and exhaustive' discovery" over four and a half years oflitigation]; Dunk v. Ford Motor Company,
27 supra, 48 Cal.App.4th at pp. 1802-1803 [affirming approval of settlement post-ce1tification with
"extensive discovery" including litigation of demuner and summary judgment]; True v. American
28 Honda Motor Co. ("True") (C.D. Cal. 2010) 749 F.Supp.2d 1052, 1078 [held sufficient discovery but
not enough to overcome government participants' objections and other problems with settlement].)
-9-
McCracken, et al. v. Riot Games, Inc., et al.
DFEH' s Objection to Plaintiffs' Motion for Preliminary Approval of Settlement
 1 pay analysis, Plaintiffs imply that they obtained and assessed the data necessary to conduct such an

2 analysis. However, Plaintiffs do not mention complete compensation records, such as equity/stock

3 compensation; contemporaneous records, such as then-current job categories from the relevant period;

4 or verified records, such tax records, in their motion or declaration. Instead, when describing the data

5 "demanded" from Riot, Plaintiffs mention only an "infonnal exchange" and "salary and bonus

6 compensation information for all employees .... " (Id. at 2:16-17, 16:5-6.) Plaintiffs further explain

7 comparisons in terms of whether "female salaries should be compared to male salaries" and then

8 ultimately report to the Court a "total wage differential." (Id. at 9:4-11 .) Plaintiffs go on to downplay

9 pay disparities by relying on either analyses controlling for undisclosed "various factors," or analyses

10 "controlling for job families" and " running unique regressions for eachjobfamily." (Id. at 9:5-16.) But

11 job families were not used before 2018. 17 (Trasovan Dec., ~ 18, Ex. G.)

12 Simply, Plaintiffs appear to have used inaccurate or incomplete data to analyze the claims and

13 settlement value. "For Plaintiffs to have brokered a fair settlement, they must have been armed with

14 sufficient information about the case to have been able to reasonably assess its strengths and value."

15 (Figueroa v. Sharper Image Corp. ("Figueroa") (S.D. Fla. 2007) 517 F.Supp.2d 1292, 1322 [citation

16 omitted].) Plaintiffs here were apparently not so armed.

17 c. Plaintiffs' Backpay Calculation is Erroneous

18 The damages calculation also contains significant errors. (Clark, supra, 175 Cal.App.4th at p.

19 802 [reversing trial court's approval of the settlement, where, as here, plaintiffs allegedly made a

20 "staggering" mistake in calculating damages].) Even simple division is wrong. Plaintiffs assert that

21 "employees will recover nearly one-third of the possible maximum exposure." (Pis.' Mot. for Prelim.

22 Approval at 9:23-24.) However, using their own numbers (or $6.2 million and $38.8 million),

23 employees will recover about one-sixth of the possible maximum exposure calculated by Plaintiffs. 18

24 17
In mid-2019, Riot states that it would "Begin to roll out the results of our 'job architecture' review
25 that will help provide logic and consistency in job titles and expectations by role." (Riot Garnes, Our
Commitments on Arbitration and Next Steps for D&I (May 3, 2019)
26 <https://www.riotgames.com/en/news/commitments-on-arbitration-and-cultural-transf01mation>.)
18
Compare Pis' Mot. for Prelim. Approval at 4:7-9 ["The parties estimate the net settlement amount tha
27 will be paid to class members (inclusive of payroll taxes) is approximately $6.24 million .... "] to 9:4-7
9:23-24 ["With respect to Plaintiffs' Equal Pay Act claim, Plaintiffs' Counsel has estimated that total
28 wage differential between male and female employees in the class period could be up to $38.8 million
without controlling for job families , job titles, departments or time in a particular job title . . .. Under
-10-
McCracken, et al. v. Riot Games, Inc., et al.
DFEH's Objection to Plaintiffs ' Motion for Preliminary Approval of Settlement
 1 Using Plaintiffs' methodology to calculate the "total wage differential" but analyzing total

2 compensation in tax and other records, employees would receive less than 2% of the potential maximum

3 exposure in backpay owed (or about $6 million of $400 million). (Trasovan Dec., ,r 17.) Including

4 equity/stock compensation more accurately estimates the backpay owed to female employees; in one

5 year, for example, the difference in average equity compensation between men and women was

6 substantial. (Ibid.) These estimates do not account for exposure for the sex harassment, retaliation, or

7 failure to prevent claims which are sought to be released by the class settlement - another staggering

8 error in Plaintiffs' calculations.

9 2. The Settlement Contains No Injunctive Relief

10 Plaintiffs also claim "[t]he settlement achieves the goals of the litigation - ensuring Riot makes

11 lasting changes toward diversity, parity, and inclusion .... " (Pis.' Mot. for Prelim. Approval at 8: 19-

12 20.) Unfortunately for the class, this is inaccurate. The settlement contains no enforceable injunctive

13 relief aimed at remedying past and preventing future discriminatory conduct. 19 With only former

14 workers as class representatives who do not seek reinstatement, Plaintiffs lack standing to seek

15 injunctive relief. (See, e.g. Ellis v. Costco Wholesale Corp. (9th Cir. 2011) 657 F.3d 970, 986

16 ["Plaintiffs not employed by Costco throughout this case do not have standing to seek injunctive relief.

17 As former employees [they] would not share an interest with class members whose primary goal is to

18 obtain injunctive relief."]; Rodriguez v. West Publishing Corp., supra, 563 F.3d at p. 960 [differences

19 between plaintiffs and class "gave the contracting representatives an interest in a monetary settlement, a

20 distinguished from other remedies, that set them apart from other members of the class."].) And as ther

21 is no enforceable injunctive relief, the $3.3 million in attorneys' fees cannot be justified by future work.

22 3. Possible Collusion or Self-Dealing and the Risk of a "Reverse Auction" Are Present

23 "Hot button indicators" that settlement proponents are more interested in settling a case for their

24 own self-interests instead of actively pursuing and protecting class members' interests include: side

25
26 this settlement, employees will recover nearly one-third of the possible maximum exposure .. .'']
19
The only provision addressing future conduct provides that "Defendant commits to ongoing
27 improvements and initiatives to continue facilitating diversity and inclusion in the workplace."
(Settlement Agreement at 23.) This provides no meaningful relief as it is too vague to be enforceable by
28 contempt. ( Wilson v. Superior Court ( 1987) 194 Cal.App.3d 1259, 1273 [contempt "can only rest upon
clear, intentional violation of a specific, nan-owly drawn order."].)
-11-
McCracken, et al. v. Riot Games, Inc. , et al.
DFEH's Objection to Plaintiffs' Motion for Preliminary Approval of Settlement
 1 deals, a "reverse auction," a small class recovery(§ III(C)(3), infra), settlement-only certification (§ IV,

2 infra), and a substantial allocation of fees to class counsel(§ III(C)(4), infra). (Fed. Jud. Ctr. Class

3 Action Guide at 17.) Evidence need not rise to the level of explicit collusion or self-dealing; rather

4 "courts ... must be particularly vigilant not only for explicit collusion, but also for more subtle signs

5 that class counsel have allowed pursuit of their own self-interests and that of certain class members to

6 infect the negotiations." (Volkswagen, supra, 229 F.Supp.3d at p. 1064.)

7 a. Side Deals are Present

8 Side deals are one sign of potential collusion -particularly when hidden. (In Re RH Inc.

9 Securities Litigation (N.D. Cal. 2019, No. 4:17-cv-00554) Hearing (June 18, 2019) [not appropriate to

10 hide terms of side agreement; denying preliminary approval] (see attached, Trasovan Dec., 1 19, Ex.

11 H); 20 True, supra, 749 F.Supp.2d at p. 1071 (denying approval of settlement; relying in part on

12 examination of amount of other settlements with same defendant]; Rodriguez v. West Publishing Corp.,

13 supra, 563 F.3d at p. 959 [observing "that the parties' failure to disclose their agreement to the court,

14 and to the class, violated the contracting representatives' fiduciary duties to the class and duty of candor

15 to the court."].) Hidden side deals are present here.

16 Here, counsel for Riot and the proposed class representatives failed to notify the Court or the

17 class of numerous side settlements - including the terms of settlement reached by former proposed class

18 representative McCracken, and the existence of the settlements reached by current proposed class

19 representatives Negron and Downie, as well as others represented by Plaintiffs' counsel. 21 (Declaration

20 of Grace Shim ("Shim Dec."), 1 4.) This failure alone is grounds for rejecting the proposed settlement.

21 b. Evidence of a "Reverse Auction" is Present

22 There is also risk of a "reverse auction." Otherwise known as "a defendant's collusive selection

23
20
24 In Re RH Inc. Securities Litigation (N.D. Cal. 2019 4: 17-cv-00554) Hearing Transcript (June 18,
2019) at 5:6-25 [Judge: "How am I supposed to read your mind and know what' s in a supplemental
25 agreement where you've given me and the class absolutely zero indication as to what's in your side
agreement? ... I have advised the entire Northern District bench of what happened in this case. It is
26 entirely inappropriate. We should not have to find this out in the manner in which we found it."].
21
Plaintiffs and Riot also refused to produce the side deals in response to a DFEH request, despite the
27 prohibition against settlements resolving sexual harassment claims from being confidential. (Shim Dec.
112-3, 5-6; Code Civ. Proc.,§ 1001; Kullar, supra, 168 Cal.App.4th at pp. 132-133 [holding that
28 objectors' request for infonnation should not be denied simply because the requested information was
disclosed during mediation].)
-12-
McCracken, et al. v. Riot Games, Inc., et al.
DFEH's Objection to Plaintiffs ' Motion for Preliminary Approval of Settlement
 1 of the weakest attorney among a number of plaintiff attorneys who have filed lawsuits dealing with the

2 same subject matter," a reverse auction is "the 'sale' of a settlement to the lowest bidder among counsel

3 for competing or overlapping classes." (Fed. Jud. Ctr. Class Action Guide at p. 21.) Unlike the

4 government - which has experience in pay equity investigations and analysis, does not have to obtain

5 class certification, and is not bound by private arbitration agreements - counsel with whom Riot settled

6 is not similarly positioned. Counsel lacks class pay equity experience and is seeking certification of an

7 across-the-board class of temps to salaried employees for a wide range of class claims despite arbitratio

8 agreements with class waivers, named plaintiffs with atypical claims, potential conflicts among class

9 members, and numerous undisclosed side deals. (See Figueroa, supra, 517 F.Supp.2d at pp. 1321-1323

10 [rejecting proposed settlement where defendant "did play these Plaintiffs off' against other actions "to

11 structure a poor settlement with weak parties."].)

12 c. The Class Recovery is Small and Inadequate

13 "Another major indicator of a reverse auction is a difference between the apparent value of the

14 class claims on the merits and the value of the settlement to class members." (Fed. Jud. Ctr. Class

15 Action Guide at p. 21.) Here, each employee receives approximately $2,500 or $5,000 for five years of

16 wage inequality and no value for the remaining claims; this contrasts to Plaintiffs' own estimate of $38.

17 million for possible maximum backpay exposure as well as the DFEH's estimate, using Plaintiffs '

18 methodology and total compensation records plus interest, of over $400 million for potential maximum

19 backpay exposure. (Trasovan Dec. , ,i 17.)

20 d. A "Clear Sailing" Provision is Present

21 Further, " [a] typical element of a reverse auction is a promise to pay attorneys more than a

22 reasonable value for the time they invested in negotiating the settlement." (Fed. Jud. Ctr. Class Action

23 Guide at 21.) Here, under a "clear sailing" provision, over $3.3 million (an amount over 50% of the net

24 settlement payment to the class) is allocated to class counsel in a case where no litigation and only

25 inf01mal discovery occmTed, where settlement was reached in principle approximately nine months afte

26 the case was filed, and where there is no future monitoring work because Plaintiffs obtained no

27 injunctive relief. Courts are suspicious of such agreements. (See, e.g. , Hofmann v. Dutch, supra, 317

28 F.R.D. at p . 578.)

-13-
McCracken, et al. v. Riot Games, Inc., et al.
DFEH' s Objection to Plaintiffs' Motion for Preliminary Approval of Settlement
 1 e. Procedural Irregularities Raise Additional Red Flags
2 Procedural irregularities also abound: there is no administrative complaint for a group or class of

3 victims; the proponents announced the agreement to the press but did not file the settlement until over

4 three months later; parties requested a preliminary approval hearing in November but instead of filing

5 papers, filed a stipulated request for an extension of time, then missed the stipulated deadlines ordered

6 by the Court; and Plaintiffs represented facts incorrectly regarding the filing of settlement papers,

7 necessitating an on-the-record correction by judicial staff, and then failed to file the Second Amended

8 Complaint with the settlement papers as required by the agreement itself. (Trasovan Dec., ~~ 8, 12-16.)

9 Cotinsel for Riot entered mediation with plaintiffs in early July- after the DFEH moved to

10 compel pay data. When Riot finally provided critical pay data to the DFEH, it settled the class claims

11 the next day. (Id. at~ 3.) Recent settlements involving the law firm representing Riot have been

12 rejected by the Courts for concerns similar to those raised by the government here. (Id. at~ 20, Ex. I

13 [Rimler v. Postmates, Inc. (Super. Ct. San Francisco County, 2018, No. CGC-18-567868) Order re

14 Motion for Preliminary Approval (Nov. 26, 2019) at 2:10-12 (denying preliminary approval ordering

15 inter alia that "Plaintiffs must provide a full valuation of all released claims and provide the Court with

16 an explanation of how they calculated the value of these claims")); id. at~ 21, Ex. J [Pena et al. v.

17 Taylor Farms Pacific Inc. et al. (E.D. Cal. 2013, No. 2:13-cv-01282) Order (Aug. 23, 2019) at 7:15-23

18 (denying preliminary approval; plaintiffs made only a "sparse attempt" to explain "how class members'

19 shared employment status presents 'a common contention' that 'is capable of classwide resolution' and

20 will ' resolve an issue that is central to the validity of each one of the claims in one stroke.'")].)

21 4. The Objection of Government Participants and Prejudice to DFEH Weigh Against

Approval
22

23 Whether the government has elected to object to the settlement, agree to it, or not comment

24 thereon is a factor given considerable weight. (See, e.g., Figueroa, supra, 517 F.Supp.2d at p. 1328

25 [denying final approval and giving pmiicular weight to government objections, even when few class

26 members had objected]; True, supra, 749 F.Supp.2d at p. 1082 [denying final approval; governm ental

27 participants' objections outweighed views of large number of class members who thought settlement

28 was fair]; Volkswagen, supra, 229 F.Supp.3d at p. 1067 [lack of governmental objections to class
-14-
McCracken, et al. v. Riot Games, Inc., et al.
DFEH's Objection to Plaintiffs' Motion for Preliminary Approval of Settlement
 1 settlement was "paiiicularly notable"].) The benefit to the Court and class of government participation

2 was recognized in a case cited by Plaintiffs, Alaniz v. California Processors, Inc. (N.D. Cal. 1976) 73

3 F.R.D. 269, 278, where the court noted that "[t]he participation of the EEOC in the [settlement]

4 negotiations provided additional protection against a 'sellout'." The court's conclusion in True is

5 applicable here: "the differential treatment of class members, the low value of the settlement, and the

6 views of the governmental participants outweighs those factors that weigh in favor of approval." (True,

7 supra, 749 F.Supp.2d at p. 1082.)

8 Moreover, impeding a government investigation by simultaneously reaching an unfair settlement

9 clearly benefits Riot at the expense of absent class members. Many of the risks the Plaintiffs used to

10 justify the low settlement value to the class do not apply to the govenunent. Risks related to class

11 certification, for example, are inunaterial because the DFEH is not required to meet the certification

12 requirements. (Gov. Code,§§ 12961, 12965; D ept. ofFair Empl. and Haus. v: Law School Admission

13 Council, Inc. (N.D. Cal. 2013) 941 F.Supp.2d 1159, 1167.) Nor is the DFEH bound by private

14 arbitration agreements. (E.E.O.C. v. Wajjl,e House (2002) 534 U.S. 279, 291-292 [private arbitration

15 agreement does not prevent government from filing employment discrimination action in its own name

16 and recovering monetary damages].) Further, with respect to at least one cause of action in the instant

17 lawsuit, the underlying substantive law is more favorable when pursued by the DFEH. 22 Thus, prejudic

18 to the govermnent weighs against approval of the proposed settlement.

19 5. Plaintiffs' Counsel's Lack of Experience with Class Pay Claims Weighs Against
Approval
20

21 Unnamed class members must act through class counsel, and hence, adequacy ofrepresentation

22 turns in part on the competency of class counsel and in part on the absence of conflicts of interest.

23 (General Tel. Co. of Southwest v. Falcon (1982) 457 U.S. 147, 157 fn. 13.) Here, counsel for the class

24 lacks experience with one of the main claims in this case-the class pay claim. (Trasovan Dec.,~ 22.)

25
22
26 Unlike private plaintiffs, when the DFEH litigates a Government Code section 12940, subdivision (k)
claim for an employer's failure to prevent discrimination, the DFEH may prevail without having to
27 prove that any underlying discrimination occurred. (Trujillo v. North County Transit Dept. (1998) 63
Cal.App.4th 280, 288-289 [under subdivision (k), the DFEH may remedy an employer's inadequate
28 procedures even where there has been no finding that discrimination actually occurred]; Cal. Code
Regs., tit. 2, § 11023, subd. (a) [same].)
-15-
McCracken, et al. v. Riot Games, Inc. , et al.
DFEH' s Objection to Plaintiffs' Motion for Preliminary Approval of Settlement
 1 Proposed class counsel's website describes the firm's specialization as outside of class pay

2 discrimination claims: " The Firm's practice emphasizes and specializes in the litigation of high-damage

3 business and injury claims." (https://www.rosensaba.com/practice-areas/.) While counsel's website

4 lists the firm's important cases, they do not list any significant employment disc1imination class actions.

5 Additionally, the irregularities surrounding the filing of the preliminary approval motion and inaccurate

6 representations to the Court thereon, failures to file class administrative charges, failure to file a Private

7 Attorney General Act notice, and the failure to obtain and analyze complete compensation data, among

8 other deficiencies, raise concerns. (Trasovan Dec., ,i,i 8, 12-16, 23.) There are also inconsistencies in

9 the approval papers themselves; counsel states that Unfair Competition Law as well as unpled Ralph

10 Civil Rights Act claims (hate violence) are released (Pis.' Mot. for Prelim. Approval at 5: 11-12), yet the

11 recitation of released claims in the settlement itself does not list those claims (Settlement Agreement at 24)

12 B. The Settlement Class Should Not be Certified

13 Following the United States Supreme Court's ruling in Amchem, federal and state courts have

14 considered certifications in settlement-only class actions with caution. (See, generally, Amchem

15 Products, Inc. v. Windsor, supra, 521 U.S. 591 ].) They give "'undiluted, even heightened, attention' to

16 class certification requirements in a settlement context" in the interest of blocking unwarranted or

17 overbroad class definitions, and protecting absent class members. (7-Eleven, supra, 85 Cal.App.4th at

18 p. 1151 [quoting Amchem, supra, 521 U.S. at p. 620].)23 Most critically, a preliminary approval motion

19 must demonstrate a community of interest, and specifically that "class representatives whose claims or

20 defenses are typical of the class" and that "class representatives and class counsel ... can adequately

21 represent the class." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter

22 Group June 20 19), ,i 14:11.5)

23 The settlement proposes to bind an overly broad class to an across-the-board release of

24 employment claims. But, the proposed class representatives can neither bring all the claims themselves,

25 nor even cover the entire five-year class period. (True, supra, 749 F.Supp.2d at p. 1070 [weakness

26
23
27 For settlement-only certification, the same four criteria must be met: (1) numerosity, (2)
commonality, (3) typicality, and (4) adequacy of representation. (7-Eleven, supra, 85 Cal.App.4th at p.
28 1160, fn 3. [California courts look to "the class action provisions of the Federal Rules of Civil
Procedure [] in the absence of state authority"].)
-16-
McCracken, et al. v. Riot Games, Inc., el al.
DFEH's Objection to Plaintiffs' Motion for Prelirnina1y Approval of Settlement
 1 specific to these named plaintiffs "raise concerns about their adequacy as representative plaintiffs"];

2 Figueroa, supra, 517 F.Supp. at pp. 1321-1322 [rejecting settlement where plaintiff "negotiated from

3 position of weakness"].) Neither worked in the most impacted, salaried group at Riot. Both also

4 executed undisclosed side agreements with Riot, as recently uncovered.

5 1. The Proposed Class Representatives and Counsel Are Inadequate

6 About three years ago, named plaintiff Negron worked as an hourly employee at Riot. (Trasovai

7 Dec., ,i 24; SAC at ,i 6.) She now lives in Connecticut. (SAC, ,i 34.) She was originally named in the

8 class complaint over one year after her last day of employment at Riot. Negron did not properly exhaus

9 her administrative remedies under the FERA or PAGA. Her FEHA and PAGA claims, at the time of

10 filing, were untimely. (Trasovan Dec., ,i 23; DLSE Mot. for Leave to Intervene at 1:26-2:3.) Negron's

11 tenure covers only about one half of the class period, and she is further limited by her arbitration

12 agreement. (Trasovan Dec., ,i,i 24-25.)

13 Named plaintiff Downie was a temporary worker for eight months at Riot. (SAC., ,i 37.) She

14 was placed there to work as a production artist through a staffing agency, Target CW. (Ibid.) She was

15 first named in this case in the second amended complaint last month. Previously, she filed her own

16 separate lawsuit against Riot and did not join the class action that she now seeks to represent. Downie

17 also did not properly exhaust administrative remedies under PAGA. With the assistance of her current

18 counsel, her DFEH complaint was not filed on behalf of a class. (Trasovan Dec., ,i 23.) Downie is

19 further limited by her short eight-month tenure, and her temporary worker status. (SAC at ,i,i 5, 37.) In

20 her individual case, Riot challenged her employment status under the Labor Code and whether she

21 pleaded a pay claim. In fact, Riot filed a demmTer on these very issues which was pending at the time

22 of dismissal. (Id. at ,i 7, Ex. C.)

23 Finally, the proposed class representatives and class counsel entered side agreements which

24 they failed to disclose to the proposed class or the Court. (Shim Dec., ,i 4; Trasovan Dec., ,i 19, Ex. H

25 [In Re RH Inc. Securities Litigation (N.D. Cal. 2019, No. 4:1 7-cv-00554) Hearing (June 18, 2019) (not

26 appropriate to hide terms of side agreement; denying preliminary approval)].) This presents a conflict

27 of interest between the proposed class representatives and their counsel, and absent class members.

28 (Rodriguez v. West Publishing Corp., supra, 563 F.3d at p. 959 ["An absence of material conflicts of

-17-
McCracken, et al. v. Riot Games, Inc., et al.
DFEH's Objection to Plaintiffs' Motion for Preliminary Approval of Settlement
 1 interest between the named plaintiffs and their counsel with other class members is central to adequacy

2 and, in turn, to due process for absent members of the class."].) They are therefore inadequate.
3 2. The Proposed Representatives Claims Are Atypical
4 The claims of Negron (former hourly employee) and Downie (former temporary worker) are not

5 typical of the class. For example, one of the most significant gender disparities during the class period

6 resulted from Riot's unequal equity distribution to male and female salaried employees. Equity or

7 incentive compensation could account for a substantial portion of compensation, depending on the year.

8 (Trasovan Dec., ,i 17.) However, neither hourly employees nor temp contractors received compensation

9 similar to salaried employees and thus were not subject to similar hann. (Id. at ,i 24; Pis.' Mot. for

10 Prelim. Approval at 17: 13-15; see e.g., Gibson v. Local 40, Supercargoes and Checkers ofIntern.

11 Longshoremen 'sand Warehousemen's Union (9th Cir. 1976) 543 F.2d 1259, 1265 [claims of part-time

12 causal clerks not typical of permanent clerks].) Even with these known differences, the proposed

13 settlement treats salaried and hourly employees identically with flat rates regardless of differences in

14 exempt status, equity compensation and salary levels. (In re Literary Works (2d Cir. 2011) 654 F.3d

15 242, 254 [class members interests diverged as to the distribution ofrecovery because each category of

16 claim is of different strength and therefore commands a different settlement value.). This is improper.

17 Additionally, as former employees who are not seeking reinstatement, Negron and Downie lack

18 interest and standing to address Riot's policies and practices going forward. The settlement thus

19 contains no enforceable injunctive relief(§ III(B), supra.) This leaves ctment employees with no

20 enforceable changes to Riot's policies and practices, while waiving their rights to seek such relief.

21 C. The Court Should Fully Inform the Class of the Government Actions and Objections,
Clarify that the Proposed Settlement Does Not Moot Them, and Permit Discovery
22
23 Should the Court grant preliminary approval, the class notice should be corrected. Minimally, it

24 should advise absent class members about (i) the DFEH's pre-existing and pending investigation, and

25 objection, (ii) the DLSE's motion to intervene and objection, and (iii) Riot's side agreements with the

26 proposed class representatives and proposed class counsel's other clients. The DFEH also requests that

27 the Court clarify that DFEH's investigation is not mooted in whole or in part by this private settlement.

28 Contrary to Riot's assertions, this settlement does not moot or release claims from a government

-1 8-
McCracken, et al. v. Riot Games, Inc., et al.
DFEI-I's Obj ection to Plaintiffs ' Motion for Preliminary Approval of Settlement
 1 investigation. (Reed, supra, 208 Cal.App.4th at p. 322 ["[N]either a consent decree nor a trial court's

2 approval of a consent decree can abrogate a third party's rights."]; E.E.O. C. v. Pemco Aeroplex, Inc.
3 (11th Cir. 2004) 383 F.3d 1280, 1293 [government enforcement action not precluded by prior resolution

4 involving private parties].) Riot cannot foreclose DFEH's pre-existing investigation with its private

5 settlement. The government represents "the public interest."24

6 Tactical maneuvering here further underscores this principle. (E.E. 0. C. v. Pemco Aeroplex, Inc.

7 supra, 383 F.3d at p. 1288.) Here, indicators suggest that Riot sought to delay the DFEH's investigation
8 and withhold pay information until it was close to reaching a settlement and then delayed providing

9 copies of it to the government. (Trasovan Dec.,~ 3.) These delays apparently afforded the time to

10 quickly settle the case with Plaintiffs, then argue that the settlement precluded government relief.

11 Thus, should .the Court preliminarily approve the proposed settlement, the DFEH requests that

12 absent class members as well as the parties be notified that it does not bar relief by the government.

13 Finally, if preliminarily approved, the DFEH requests leave to conduct discovery regarding the

14 settlement. (Kullar, supra, 168 Cal.App.4th at pp. 132-133 [pennitting objectors to conduct discovery].

15 IV. CONCLUSION
16 The Court should neither provisionally certify the class nor preliminarily approve the settlement.

17
18 Dated: January 8, 2020 DEPARTMENT OF FAIR EMPLOYMENT
AND HOUSING
19

20 By:
21
Mari Mayeda 0
Associate Chief Counsel
22 Kaitlin Toyama
Staff Counsel
23
24
24 (Dept. ofFair Empl. & Haus. v. Law School Admission Council, Inc., supra, 941 F.Supp.2d at p. 1169
["In bringing enforcement actions, DFEH acts 'not merely [as] a proxy for the victims of
25 discrimination,' but also 'to vindicate the public interest in preventing [certain forms of]
discrimination."']; see also General Tel. Co. of the Northwest, Inc. v. E.E.O.C. (1980) 446 U.S. 3 18,
26 333; see also E.E.O.C. v. Waffle House, Inc., supra, 534 U.S. at pp. 291-292 [holding private party
arbitration agreement does not preclude EEOC from seeking relief]; People v. Pac. Land Research Co.
27 (1977) 20 Cal.3d 10, 18 [actions filed by government officials differ from private party class actions in
many ways]; California v. IntelliGender, LLC (9th Cir. 2014) 771 F.3d 1169, 1174 ["private suits do no
28 and caimot substitute for public enforcement actions, which serve as a far greater deterrent and thus a
greater protection."].)
-19-
McCracken, et al. v. Riot Games, Inc., et al.
DFEH's Objection to Plaintiffs' Motion for Preliminary Approval of Settlement
 1 JANETTE WIPPER (#275264)
Chief Counsel
2 MARI MAYEDA (#110947)
Associate Chief Counsel
3 GRACE SHIM (# 310692)
Senior Staff Counsel
4 IRINA TRASOVAN (#290372)
Staff Counsel
5 KAITLIN TOYAMA (#318993) CONFORMED COPY
ORIGINAL FILED
Staff Counsel Superior Court of California
County of Los Anoeles
6 DEPARTMENT OF FAIR EMPLOYMENT
AND HOUSING
7 2218 Kausen Drive, Suite 100 JAN 08 2020
Elk Grove, CA 95758 Sherri R. Carter, Executive Ut11cer1Clerk of Gou rt
8 Telephone: (916) 478-7251
Facsimile: (888) 382-5293 By: Isaac Lovo, Deputy
9
Attorneys for the DFEH
10 (Fee Exempt, Gov. Code,§ 6103)

11

12 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF LOS ANGELES
13

14
MELANIE MCCRACKEN, an individual; Case No. 18STCV03957
15 JESSICA NEGRON, an individual; and
GABRIELA DOWNIE, an individual, DECLARATION OF IRINA TRASOVAN IN
16 SUPPORT OF THE DEPARTMENT OF FAIR
EMPLOYMENT AND HOUSING'S
Plaintiffs, OBJECTION TO PLAINTIFFS' MOTION
17
vs. FOR PRELIMINARY APPROVAL OF
18 SETTLEMENT
RIOT GAMES, INC., a Delaware
19 Corporation; and DOES l through IO, Hearing Date: January 22, 2020
inclusive, Time: 1:30 p.m.
20 Dept.: SS-6
Judge: Hon. Elihu M. Berle
Defendants.
21
Action Filed: November 6, 2018
22
23
24
25

26
27
28

McCracken, et al. v. Riot Games, Inc., et al.

Declaration ofirina Trasovan ISO DFEH's Objection to Plaintiffs' Motion for Preliminary Approval of Settlemen
 1 DECLARATION OF IRINA TRASOVAN

2 I, Irina Trasovan, declare:

3 1. I am an attorney at law duly licensed to practice before all the comis of the State of

4 California and am employed as Staff Counsel with the Depmiment of Fair Employment and Housing

5 (DFEH). I have personal knowledge of the facts set forth in this declaration, and, if called as a witness,

6 I could testify competently as to the tmth of the matters asserted.

7 2. In October 2018, the Director of the DFEH, Kevin Kish, issued a group or class

8 complaint of discrimination against Riot Games, Inc. , Riot Games Direct, Inc., Riot Games

9 Merchandise, Inc., and Riot Games Productions, Inc. , and initiated a government investigation into

10 gender discrimination at Riot.

11 3. On June 12, 2019, the DFEH filed a petition to enforce Riot Games' compliance with

12 investigative discovery that the DFEH propounded on Febmary 15, 2019 regarding employment records

13 in snapshot data. Riot Games did not produce employment records in end-of-year snapshot data or

14 electronic employee wage and tax information from I.R.S. Form W-2 records (W-2) to the DFEH until

15 August 2, 2019, one day before it settled the class claims. By July 2019, the DFEH propounded 44

16 requests for production and 29 written interrogatories.

17 4. On September 6, 2019, Riot Games, Inc. (Riot) sent a letter to the DFEH, stating that its

18 proposed private class action settlement in McCracken v. Riot Games mooted the information the DFEH

19 was seeking in its investigation and that the claims brought by the DFEH on behalf of Riot Games

20 employees will be released as part of the McCracken settlement. A copy of the letter dated September 6

2.1 2019 is attached as "Exhibit A."

22 5. On December 6, 2019, Riot responded to all 29 interrogatories in the DFEH's Special

23 Interrogatories, Set Three, by stating that "Respondent objects to the Interrogatory as unduly

24 burdensome, harassing, and duplicative in light of the pending putative class action of McCracken et al.

25 v. Riot Games, Inc., LASC Case No. 18STCV03957."

26 6. So far, McCracken, et al. v. Riot Games, Inc., et al. (Los Angeles County Superior Court,

27 Case No. 18stcv03957) has involved only status or scheduling conferences with the comi. A copy ofth

28
-1-
McCracken, et al. v. Riot Games, Inc., et al.
Declaration of Irina Trasovan ISO DFEH 's Objection to Plaintiffs' Motion for Preliminary Approval of Settlemen
 1 Case Summary for McCracken, et. al. v. Riot Games, Inc., et al. as of January 7, 2020 is attached as

2 "Exhibit B."

3 7. So far, Downie v. Riot Games, Inc., et al. (Los Angeles County Superior Court, Case No.

4 18stcv09833) has involved only status or scheduling conferences with the court and a de1mmer which

5 was pending at the time of dismissal. In the demurrer, Riot challenged Downie's employment status

6 under the Labor Code and whether she pled a pay claim. A copy of the Case Summary for Downie v.

7 Riot Games, Inc., et al. as of January 7, 2020 is attached as "Exhibit C."

8 8. On August 23, 2019, Riot Games placed a "news" posting on its website, announcing "an

9 agreement in principle" between Riot Games and the Plaintiffs in McCracken, and included a press

10 release dated August 22, 2019. The website post states that no systemic discrimination occurred: "After

11 extensively reviewing these issues, we can confidently state that gender discrimination (in pay or

12 promotion), sexual harassment, and retaliation are not systemic issues at Riot." A copy of the website

13 post, dated August 23, 2019, is attached as "Exhibit D."

14 9. On September 10, 2019, the DFEH requested that Riot Games provide to the DFEH a

15 copy of the proposed settlement agreement in McCracken v. Riot Games.

16 10. On September 11 , 2019, Riot Games sent a letter to the DFEH, stating that it would not

17 provide a copy of the proposed settlement agreement until it was final and publicly filed on or before

18 October 7, 2019.

19 11. On October 11, 2019, October 21, 2019, and November 5, 2019, the DFEH again

20 requested a copy of the proposed settlement agreement. On October 17, 2019, October 28, 2019, and

21 November 7, 2019, Riot Games again stated that it would not provide the DFEH a copy of the proposed

22 settlement agreement until it was filed.

23 12. In early September 2019, Plaintiffs notified this Court of the proposed class action

24 settlement with Riot and this Court set the hearing on the Motion for Preliminary Approval of

25 Settlement for November 6, 2019. The parties were to submit a status report by no later than October

26 30, 2019. A copy of the Notice of Ruling Following Status Conference dated September 19, 2019 is

27 attached as "Exhibit E."

28 Ill

-2-
M cCracken, et al. v. Riot Games, Inc., et al.
Declaration oflrina Trasovan ISO DFEH's Objection to Plaintiffs' Motion for Preliminary Approval of Settlemen
 1 13. On October 17, 2019, Plaintiffs and Riot stipulated to continue the November 6, 2019

2 status conference and hearing on the Motion for Preliminary Approval. This Court continued the

3 hearing to December 4, 2019 and ordered Plaintiffs to submit the Motion for Preliminary Approval no

4 later than November 1, 2019. The Court also ordered Plaintiffs and Riot to submit a joint status repo1i

5 by no later than November 20, 2019.

6 14. Plaintiffs failed to file the Motion for Preliminary Approval of Class Settlement by the

7 Court's November 1, 2019 deadline. More than a month after the deadline, the Motion for Preliminary

8 Approval of Class Settlement was finally available on the court's website at around 12:00 p.m. on

9 December 3, 2019. Plaintiffs and Riot Games also failed to submit to the Comi a status update by the

10 November 20, 2019 deadline.

11 15. At the December 4, 2019 hearing, Plaintiffs' counsel represented to the Court that parties

12 filed a joint stipulation on November 27, 2019 requesting that the hearing on the motion for preliminary

13 approval be continued to January 10, 2020 or sometime thereafter. The Court clerk then corrected

14 Plaintiffs ' counsel, stating that Plaintiffs' filings were on December 2, 20 19, not November 27, 2019.

15 (McCracken v. Riot Games, Inc. et al (Case No. 18STCV03957) Hearing Transcript (December 4, 2019

16 at 2:12-19). A copy of the December 4, 2019 Hearing Transcript is attached as "Exhibit F."

17 16. Plaintiffs failed to file the Second Amended Complaint "concurrently with" the Motion

18 for Preliminary Approval as required by the Settlement Agreement. (Settlement Agreement at ,r 45).

19 The Motion for Preliminary Approval was filed on December 2, 2019. The Second Amended

20 Complaint was not filed until December 18, 2019.

21 17. Using Plaint(ffs' methodology as described in their preliminary approval motion, but

22 analyzing total compensation from wage, tax and other records and accounting for interest, the DFEH

23 estimates the total wage d(/Jerential between male and female employees in the class period to be over

24 $400 million. Thus, the approximately $6 million allocated to the class by the proposed settlement is

25 roughly less than 2% of the potential maximum exposure - using Plaintiffs' methodology but analyzing

26 total compensation - in backpay owed. Total compensation is based on Riot's employees' W-2

27 information and Riot's employee records in end-of-year snapshot data for 201 5, 201 6, 201 7, and 201 8

28 that Riot produced to the DFEH. The DFEH also included projected values for 2019- based on 2018.
-3-
McCracken, et al. v. Riot Games, Inc., et al.
De claration oflrina Trasovan ISO DFEH's Objection to Plaintiffs' Motion for Preliminary Approval of Settlemen
 1 The DFEH's estimate includes interest per California Labor Code section 218.6 and California Code of

2 Civil Procedure section 3289.

3 18. On January 11 , 2019, Riot produced to the DFEH the list of fields from its HRIS systems

4 during the relevant time period. "Job family" is not on the list of existing fields during the time when

5 most of the challenged pay or promotions decisions were made. A copy of the HRIS fields list produce

6 by Riot on January 11, 2019 is attached as "Exhibit G."

7 19. A copy of the Hearing Transcript from In Re RH Inc. Securities Litigation (N.D. Cal.

8 2019, No. 4: l 7-cv-005 54) Hearing (June 18, 2019) is attached as "Exhibit H."

9 20. A San Francisco Superior Court denied preliminary approval of a recent settlement

10 involving the firm representing ~ot, ordering that plaintiffs provide a full valuation of all released

11 claims and provide an explanation of how they calculated the value of the claims. A copy of the

12 November 26, 2019 Order re Motion for Preliminary Approval in Rimler v. Postmates, Inc. (Super. Ct.

13 San Francisco County, 2018, No. CGC-18-567868) is attached as "Exhibit I."

14 21. The U.S . District Court for the Eastern District of California denied preliminary approval

15 of a settlement involving the firm representing Riot because plaintiffs made only a "sparse attempt" to

16 explain the proposed class settlement was capable of providing class-wide relief. A copy of the August

17 23, 2019 Order re Motion for Preliminary Approval of Settlement in Pena et al. v. Taylor Farms Pacific

18 Inc. et al. (E.D. Cal. 2013 , No. 2:13-cv-01282) is attached as "Exhibit J."

19 22. Plaintiffs' counsel lacks experience w ith class equal pay claims. Proposed class counsel's

20 website describes the finn 's specialization as outside of class pay discrimination claims: "The Firm's

21 practice emphasizes and specializes in the litigation of high-damage business and injury claims." While

22 counsel's website lists the firm 's significant cases, they do not list any significant employment

23 discrimination class actions.

24 23. On November 5, 2018, Plaintiff Melanie McCracken filed a DFEH administrative

25 complaint against Riot Games, Inc. alleging individual gender discrimination claims, with no group or

26 class claims. On December 27, 2018, Plaintiff Gabriela Downie filed a DFEH administrative complaint

27 against Riot Game, Inc., alleging individual gender discrimination claims, with no group or class claims .

28 Plaintiff Jessica Negron did not file a DFEH administrative complaint against Riot Games, Inc.

-4-
M cCracken, et al. v. Riot Games, Inc., et al.
Declaration of Irina Trasovan ISO DFEH 's Objection to Plaintiffs' Motion for Preliminary Approval of Settlemen
 1 24. Plaintiff Negron worked at Riot as an hourly employee from April 2015 to April 2017.

2 Hourly employees did not receive compensation similar to salaried employees in the records.

3 25. Plaintiff Negron executed a mandatory arbitration agreement with Riot Games which

4 both provides that each individual employee must resolve grievances with Riot through arbitration and

5 prohibits employees from pursuing class arbitration.

6 I declare under penalty of perjury under the laws of the State of California that the foregoing is

7 trne and correct.

8 Executed on this 8th day of January 2020, at Los Angeles, California.

10
Irina Trasovan
11

12

13

14

15
16

17

18

19

20

21

22
23

24

25

26

27

28

-5-
McCracken, et al. v. Riot Games, Inc., et al.
Declaration ofJrina Trasovan ISO DFEH's Objection to Plaintiffs' Motion for Preliminary Approval of Settl ernen
EXHIBIT A
 Gibson, Dunn & Crutcher LLP
GIBSON DUNN 333 South Grand Avenue
Los Angeles, CA 90071-3197
Tel 21 3. 229.7000
www.gib sondunn.com

Katherine VA Smith
Direct +1 213229.7107
Fax: +1 213.229.6107
[email protected]

September 6, 2019

VIA E-MAIL ([email protected])

Grace Shim
Staff Cotmsel
Depattment of Fair Employment and Housing
2218 Kausen Drive
Elle Grove, CA 95758

Re: K;sl, v. R;ot Games

Counsel-

I write regarding the six subpoenas served by the DFEH at 4:55 pm on Friday, August 29,
2019. These subpoenas seek the testimony of
between September 16 and
20. Sho1tly after service, you stated by email that the Department will work with us to fmd
times that work for us and our client, Riot Games, Inc. ("Riot"). While Riot is not neces-
sarily opposed to producing one or more witnesses for testimony, we have several questions
and concerns about these subpoenas.

To stait, we would like to better understand the process regarding and scope of the requested
testimony. We presume that the subpoenas are seeking depositions pursuant to California
Government Code section 12963.3. Please confinn. Will the depositions be recorded by a
stenographer, and/or by audio or video recording? Could you provide an overview of the
topics about which you intend to question each of these witnesses so we can evaluate
whether their testimony is appropriate in this matter, and so we can properly prepare them to
speak with you?

Next, is no longer fill employee of Riot. However, she has con.fumed that
she would like Gibson Dunn to represent her for the purposes of this investigation. -
He too has confiimed that Gib-
son Dunn will represent him for the purposes of this investigation. As such, you may con-
tinue to send any fmther coITespondence or service directed to either
- to Gibson Dunn.

Beiji ng· Brussels · Century City• Dallas • Denver • Dubai • Frankfurt • Hong Kong • Houston • London • Los Angeles • Munich
New York• Orange County• Palo Alto • Paris • San Francisco • Sao Paulo• Singapore• Washington, O.C.
GIBSON DUNN

September 6, 2019
Page 2

Further, we be! ieve that each of the noticed depos itions is almost certain to elicit confidential
information regarding Riot, its employees, and its applicants, and it is highly likely that cer-
tain parts of the transcript and/or exhibits should be designated as confidential. We there-
fore encourage the Depaitment to recons ider its position against the e ntry of a protective or-
der. If the DFEH w ill not agree to such an order, these depositions should proceed after the
next conference before Judge Bowick, at which the Court will rule upon Riot's forthcoming
motion for a protective order.

Finally, we are concerned that much of the information the Department seeks through these
depositions w ill soon be effectively mooted by the pending c lass action settlement in
McCracken v. Riot Games. This is because the claims brought by the DFEH on behalf of
Riot employees substantially overlap w ith the claims brought by the named p laintiffs in that
case and will be released by Riot employees as part of that settlement. Given that the claims
brought on beha lf of Riot employees wil I soon be released on behalf of the putative
McCracken class, Riot should not be required to unde1take significantly burdensome discov-
ery to facilitate the Department's investigation of s uch claims. Moreover, we believe that a
number of these witnesses are like ly to testify to the same info rmation and that it would be
overly burdensome to produce all the w itnesses when a more limited number could provide
sufficient information to the DFEH. Accordingly, we invite the DFEH to meet and confer to
narrow the deposition discovery sought by the Depa1tment's subpoenas.

Please let us know when you a re available for a call to discuss.

Sincerely,

Katherine V.A. Sm ith

EXHIBIT B
1/7/2020 Case Summary - Online Services - LAC

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CASE INFORMATION
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Case Information I Register Of Actions I FUTURE HEARINGS I PARTY INFORMATION I Documents Filed I Proceedings Held

Case Number: 18STCV03957

M ELANIE MCCRACKEN, ET AL. VS RIOT GAMES, INC.

Flllng Courthouse: Spring Street Courthouse

Filing Date: 11/06/2018

Case Type: Other Employment Complaint Case (General Jurisdiction)
Status: Pending

Click here to access document images for this case

If this link fa ils, you may go to the Case Document Images site and search using the case number displayed on this page

FUTURE HEARINGS
Case Information I Register Of Actions I FUTURE HEARINGS I PARTY INFORMATION I Documents Filed I Proceedings Held

01/22/2020 at 13:30 PM in Department 6 at 312 North Spring Street, Los Angeles, CA 90012
Hearing on Motion for Preliminary Approval of Settlement

01/22/2020 at 13:30 PM in Department 6 at 312 North Spring Street, Los Angeles, CA 90012
Hearing on Motion for Leave to Intervene

01/22/2020 at 13:30 PM in Department 6 at 312 North Spring Street, Los Angeles, CA 90012
Status Conference

PARTY INFORMATION
Case Information I Register Of Actions I FUTURE HEARINGS I PARTY INFORMATION I Documents Filed I Proceedings Held

CONWAY CATHERINE ANNE - Attorney for Defendant

DIVISION OF LABOR STANDARDS ENFORCEMENT - Non-Party

DOWNIE GABRIELA - Plaintiff

MCCRACKEN MELANIE - Plaintiff

NEGRON JESSICA - Plaintiff

www.lacourt.org/casesummary/ui/casesummary.aspx?casetype=familylaw 1/7
 1/7/2020 Case Summary - Online Services - LAC
RIOT GAMES INC. - Defendant

SABA RYAN D -Attorney for Plaintiff

SMITH KATHERINE V-Attorney for Defendant

DOCUM ENTS FILED

I Register Of Actions I FUTURE HEARINGS I PARTY INFORMATION [ Documents Filed
Case Information [ Proceedings Held

Documents Filed (Filing dates listed in descending order)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
03/04/2019

12/30/2019 Plaintiffs' Amended Notice o f the Time of the Hearing Regarding t he M otion for Preliminary Approval of Settlement
Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

12/27/2019 Motion for Leave to Intervene

Filed by Division of Labor Standards Enforcement (Non-Party)

12/18/2019 Plaintiffs' Notice of Entry of Order Re: (1) Second Amended Complaint; and (2) Dismissal of Plaintiff Melanie McCracken
Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

12/11/2019 Order Re: Dismissal of Plaintiff Melanie McCracken

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

12/1 1/2019 Plaintifrs Melanie Mccracken's Request for Dismissal Pursuant to California Rules of Court. Rule 3.770; Declaration of Ryan D. Saba
Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

12/11/2019 Stipulation and Order (Re: Second Amended Complaint)

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

12/05/2019 Notice of Continuance (RE Motion and Motion for Preliminary Approva l of Settlement)
Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

12/04/2019 Minute O rder ( (Hearing on Motion for Preliminary Approval of Settlement; Sta ...))
Filed by Clerk

12/04/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore Uane Hong-Elsey, CSR 1111975)

12/04/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore Uane Hong-Elsey, CSR 11 11975)

12/02/2019 Motion for Preliminary Approval of Settlement

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

10/17/2019 Stipulation and Order (Re; Continuation of Hearing of Motion for Preliminary Approval of Class Settlement)
Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff); Riot Games, Inc. (Defendant)

09/19/2019 Plaintiffs' Notice of Ruling Following Status Conference

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

09/05/2019 Minute Order ( (Status Conference))

Filed by Clerk

09/05/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore (Linda Lee, CSR #13568)
Filed by Riot Games, Inc. (Defendant)

08/16/2019 Stipulation and Order (for Continuance of Status Conference)

Filed by Riot Games, Inc. {Defendant)

08/02/2019 Joint Status Stipulation for Continuance of Status Conference

Filed by Riot Games, Inc. (Defendant)

07/02/2019 Certificate of Mailing for (Minute Order (Nunc Pro Tune Order) of 07/02/2019)
Filed by Clerk

07/02/2019 Minute Order { (Nunc Pro Tune Order))

Filed by Clerk

06/28/2019 Certificate of Mailing for (Minute Order (Court Or der) of 06/28/2019)

Filed by Clerk

06/28/2019 Certificate of Mailing for (Minute Order (Court Order) o f 06/28/2019)

Filed by Clerk

06/28/2019 Minute Order ( (Court Order))

Filed by Clerk

06/25/2019 Certificate of Mailing for (Minute Order (Court Order) of 06/25/2019)

Filed by Clerk

www.lacourt.org/casesummary/ui/casesummary.aspx?casetype=familylaw 2/7
117/2020 Case Summary - Online Services - LA C
06/25/ 2019 Minute Order ( (Court Order))
Filed by Cler k

06/24/2019 Response (to Notice of Related Case)

Filed by Riot Games, Inc. (Defendant)

06/18/2019 Notice of Related Case

Filed by Department of Fair Employment and Housing (Non-Party)

03/20/2019 Order (to amend 02/19/19 minute order)

03/20/2019 Joint Stipulation [and Proposed Order] to amend February 19,2019 Minute Order
Filed by Riot Games, Inc. (Defendant)

03/15/2019 Proof of Service (not Summons and Complaint) (re Joint Stipulation to Amend February 19, 2019 Minute Order)
Filed by Riot Games, Inc. (Def endant)

03/08/2019 Notice (of Entry of Order Re: Electronic Service)

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

Click on any o f the below link(s) to see Register of Action Items on or before the date indicated:
TOP 03/04/2019

03/04/2019 Order (Order Au thorizing Electronic Service)

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff); Riot Games, Inc. (Defendant)

02/19/2019 Minute Order ( (Initial Status Conference))

Filed by Clerk

02/13/2019 Status Conference Statement UOINT INITIAL STATUS STATEMENT)

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

02/08/2019 Notice and Acknowledgment o f Receipt

Filed by Me lanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

01/22/2019 Notice (Notice of Entry of Order)

Filed by Melanie McCracke n (Plaintiff); Jessica Negron (Plaintiff)

01/16/2019 Amended Complaint (1st)

Filed by Melanie McCracken (Plaintiff); M elanie McCracken (Plaintiff); Jessica Negron (Plaintiff) et al.

01/08/2019 M inut e Order ((Court Order))

Filed by Clerk

01/08/2019 Init ial Status Conference Order

Filed by Clerk

01/08/2019 Certificate of Mailing for (Minute Order (Court Order) of01/08/2019 and Initial St atus Conference Order)
Filed by Clerk

12/27/2018 Notice of Case Reassignment

12/20/2018 Certificate of Mailing for (Minute Order (Court Order) of 12/20/2018)

Filed by Clerk

12/20/2018 Notice of Case Reassignment/Vacate Hearings

Filed by Clerk

12/20/2018 Minut e Order ((Court Order))

Filed by Clerk

11/06/2018 Second Amended Complaint for Damages

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

11/06/2018 Second Amended Complaint for Damages

Filed by M elanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

11/06/2018 Notice of Case Assignment - Unlimited Civil Case

Filed by Clerk

11/06/2018 Summons (on Complaint)

Filed by Clerk

11/ 06/2018 Complaint (1st)

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

11/06/2018 Civil Case Cover Sheet

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

11/06/2018 Complaint
Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 03/04/2019

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PROCEEDINGS HELD
Case Information [ Register Of Actions [ FUTURE HEARINGS I PARTY INFORMATION [ Documents Filed [ Proceedings Held

Proceedings Held (Proceeding dates listed in descending order)

12/04/2019 at 11 :00 AM i n Department 6, Elihu M. Berle, Presiding
Hearing on Motion for Preliminary Approval of Settlement - Held- Continued

12/04/2019 at 11 :00 AM in Department 6, Elihu M. Berle, Presiding

St atus Con ference - Held - Continued

11/06/2019 at 11:00 AM in Departm ent 6, Elihu M . Berle, Presiding

Status Conference - Not Held - Continued - Stipulation

11/06/2019 at 11 :00 AM in Department 6, Elihu M . Berle, Presiding

Hearing on M otion for Preliminary Approval o f Settlement - Not Held - Continued - Stipulation

09/05/2019 at 11:00 AM in Department 6, Elihu M. Berle, Presiding

Status Conference - Held

08/22/2019 at 11 :00 AM in Department 6, Elihu M. Berle, Presiding

Status Confere nce - Not Held - Continued - Stipulation

08/07/2019 at 11 :00 AM in Department 6, Elihu M. Berle, Presiding

Status Conference - Not Held - Continued - Stipulation

07/02/2019 at 2:00 PM in Department 6, Elihu M. Berle, Presiding

Nunc Pro Tune Order

06/28/2019 at 10:30 AM in Department 6, Elihu M. Berle, Presiding

Court Ord er

06/25/2019 at 3:00 PM in Department 6, Elihu M. Berle, Presid ing

Cou rt Order

05/15/2019 at 11 :00 AM in Department 6, Elihu M. Berle, Presiding

Status Conference - Not Held - Continued - Stipulation

02/19/2019 at 09:00 AM in Department 6, Elihu M. Berle, Presiding

Initial Status Conference - Held

01/08/2019 at 3:52 PM in Department 6, Elihu M. Berle, Presiding

Court Order

12/20/2018 at 08:27 AM in Department 12, Carolyn B. Kuhl, Presiding

Court Order

REGISTER OF ACTIONS
I Register Of Actions
Case Information [ FUTURE HEARINGS [ PARTY INFORMATION [ Documents Filed [ Proceedings Held

Regist er of Actions (Listed in descending order)

Click on any of the below link(s) to see Registe r of Action Items on or before the date indicated:
05/15/2019

12/30/2019 Plaintiffs' Amended Notice of the Time of the Hearing Regarding t he Motion for Preliminary Approval of Settlement
Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

12/27/2019 Motion for Leave to Intervene

Filed by Division of Labor Stand ards Enforcement (Non-Party)

12/18/2019 Plaintiffs' Notice of Entry of Order Re: (1) Second Amended Complaint; and (2) Dismissal of Plaintiff Melanie McCracken
Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

12/11/2019 Order Re: Dismissal of Plaintiff Melanie McCracken

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

12/11/2019 Stipulation and Order (Re: Second Amended Complaint)

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

12/11/2019 Plaintiff's Melanie Mccracken's Request for Dismissal Pursuant to California Rules of Court, Rule 3.770; Declaration of Ryan D. Saba
Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

12/05/2019 Notice of Continuance (RE Motion and Motion for Preliminary Approval of Settlement)
Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

12/04/2019 at 11 :OO AM in Department 6, Elihu M. Berle, Presiding

Status Conference - Held - Continued

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12/04/2019 at 11:DO AM in Department 6, Elihu M. Berle, Presiding
Hearing on Motion for Preliminary Approval of Settlement - Held - Continued

12/04/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore ijane Hong-Elsey, CSR# 11975)
12/04/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore ijane Hong-Elsey, CSR# 11975)
12/04/2019 Minute Order ( {Hearing on Motion for Preliminary Approval of Settlement; Sta ...))
Filed by Clerk

12/02/2019 Motion for Preliminary Approval of Settlement

Filed by Mela nie McCracken (Plaintiff); Jessica Negron (Plaintiff)

11/06/2019 at 11 :OD AM in Department 6, Elihu M. Berle, Presiding

Hearing on Motion for Preliminary Approval of Settlement- Not Held - Continued - Stipulation

11/06/2019 at 11:OD AM in Department 6, Elihu M. Berle, Presiding

Status Conference - Not Held - Continued - Stipulation

10/17/2019 Stipulation and Order (Re; Continuation of Hearing of Motion for Preliminary Approval of Class Settlement)
Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff); Riot Games, Inc. (Defendant)

09/19/2019 Plaintiffs' Notice of Ruling Following Status Conference

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

09/05/2019 at 11 :DO AM in Department 6, Elihu M. Berle, Presiding

Status Conference - Held

09/05/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore (Linda Lee, CSR # 13568)
Filed by Riot Games, Inc. (Defendant)

09/05/2019 Minute Order ( (Status Conference))

Filed by Clerk

08/22/2019 at 11 :DO AM in Department 6, Elihu M. Berle, Presiding

Status Conference - Not Held - Continued - Stipulation

08/16/2019 Stipulation and Order (for Cont inuance of Status Conference)

Filed by Riot Games, Inc. (Defendant)

08/07/2019 at 11:00 AM in Department 6, Elihu M. Berle, Presiding

Status Conference - Not Held - Continued - Stipulation

08/02/2019 Joint Status Stipulation for Continuance of Status Conference

Filed by Riot Games, Inc. (Defendant)

07/02/2019 at 2:00 PM in Department 6, Elihu M. Berle, Presiding

Nunc Pro Tune Order

07/02/2019 Certificate of Mailing for (Minute Order (Nunc Pro Tune Order) of 07/02/2019)
Filed by Clerk

07/02/2019 Minute Order ( (Nunc Pro Tune Order))

Filed by Clerk

06/28/2019 at 10:30 AM in Department 6, Elihu M. Berle, Presiding

Court Order

06/28/2019 Minute Order ( (Court Order))

Filed by Clerk

06/28/2019 Certificate of Mailing for (Minute Order (Court Order) of 06/28/2019)

Filed by Clerk

06/28/2019 Certificate of Mailing for (Minute Order (Court Order) of06/28/2019)

Filed by Clerk

06/25/2019 at 3:00 PM in Department 6, Elihu M. Berle, Presiding

Court Order

06/25/2019 Minute Order{ (Court Order))

Filed by Clerk

06/25/2019 Certificate of Mailing for (Minute Order (Court Order) of 06/25/2019)

Filed by Clerk

06/24/2019 Response (to Notice of Related Case)

Filed by Riot Games, Inc. (Defendant)

06/18/2019 Notice of Related Case

Filed by Department of Fair Employment and Housing (Non-Party)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 05/15/2019

05/15/2019 at 11 :00 AM in Department 6, Elihu M. Berle, Presiding

Status Conference - Not Held - Continued - Stipulation

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03/20/2019 Joint Stipulation [and Proposed Order] to amend February 19,2019 Minute Order
Filed by Riot Games, Inc. (Defendant)

03/20/2019 Order (to amend 02/19/19 minute order)

03/15/2019 Proof of Service (not Summons and Complaint) (re Joint Stipulation to Amend February 19, 2019 M inute O rder)
Filed by Riot Games, Inc. (Defendant)

03/08/2019 Notice (of Ent ry o f Order Re: Electronic Service)

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

03/04/2019 Order (Order Authorizing Electronic Service)

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff); Riot Games, Inc. (Defendant)

02/19/2019 at 09:00 AM in Department 6, Elihu M. Berle, Presiding

Initial Status Conference - Held

02/19/2019 Minute Order ( (Initial Status Conference))

Filed by Clerk

02/13/2019 Status Conference Statement UOINT INITIAL STATUS STATEMENT)

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

02/08/2019 Notice and Acknowledgment of Receipt

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaint iff)

01/22/2019 Notice (Notice of Entry of Order)

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

01/16/2019 Amended Complaint (1st)

Filed by Melanie McCracken (Plaintiff); Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff) et al.

01/08/2019 at 3:52 PM in Department 6, Elihu M. Berle, Presid ing

Court Order

01/08/2019 Certificate of Mailing for (Minute Order (Court Order) of 01/08/2019 and Init ial Status Conference Order)
Filed by Clerk

01/08/2019 M inute Order ((Court Order))

Filed by Clerk

01/08/2019 Initial Status Conference Order

Filed by Clerk

12/27/2018 Notice of Case Reassignment

12/20/2018 at 08:27 AM in Department 12, Carolyn 8. Kuhl, Presiding

Court Order

12/20/2018 Notice of Case ReassignmentNacate Hearings

Filed by Clerk

12/20/2018 Certificate of Mailing for (Minute Order (Court Order) of 12/20/2018)

Filed by Clerk

12/20/2018 Minute Order ((Court Order))

Filed by Clerk

11/06/2018 Complaint
Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

11/06/2018 Second Amended Complaint for Damages

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

11/06/2018 Second Amended Complaint for Damages

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

11/06/2018 Complaint (1st)

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaintiff)

11/06/2018 Civil Case Cover Sheet

Filed by Melanie McCracken (Plaintiff); Jessica Negron (Plaint iff)

11/06/2018 Summons (on Complaint)

Filed by Clerk

11/06/2018 Notice of Case Assignment - Unlimited Civil Case

Filed by Clerk

Click on any of the below link(s) to see Register of Act ion Items on o r before the date indicated:
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CASE INFORMATIO N
I II PRINT NEW SEARCH I
Case Information I Register Of Actions I FUTURE HEARINGS I PARTY INFORMATION I Documents Filed I Proceedings Held

Case Number: 18STCV09833

GABRIELA DOWNIE VS RIOT GAMES, INC.

FIiing Courthouse: Stanley Mask Courthouse

FIiing Date: 12/27/2018

Case Type: Wrongful Termination (General Jurisdiction)
Status: Request for Dismissal - Before Trial within 60 days o f ADR 12/20/2019

Click here to access document images for this case

If this link fails, you may go to the Case Document Images site and search using t he case number displayed on this page

FUTURE HEA RING S

Case Information I Register Of Actions I FUTURE HEARINGS I PARTY INFORMATION I Documents Filed I Proceedings Held

None

PA RTY INFORMATION
Case Information I Register Of Actions I FUTURE HEARINGS I PARTY INFORMATION I Documents Filed I Proceedings Held

DEPARTMENT OF FAIR EM PLOYMENT AND HOUSING - Non-Party

DOWN IE GABRIELA - Plaintiff

RIOT GAMES INC. - Defendant

SABA RYAN D. ESQ. - Attorney for Plaintiff

SESSIONS MATTHEW - Attorney for Defendant

DOCUMENTS FILED
Case Information I Regist er Of Actions I FUTURE HEARINGS I PARTY INFORMATION I Documents Filed I Proceedings Held

Documents Filed (Filing dates listed in descending order)

Click on any of the below link(s) to see Register of Action Items on or before t he date indicated:
0411 1/2019

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12/20/2019 Request for Dismissal
Filed by Gabriela Downie (Plaintiff)

12/09/2019 Notice (Plaintifrs Notice of Order to Show Cause re Dismissal.)

Filed by Gabriela Downie (Plaintiff)

12/03/2019 Certificate of Mailing for ((Court Order) of 12/03/2019)

Filed by Clerk

12/03/2019 Minut e Order ( (Court Order))

Filed by Clerk

12/03/2019 Notice of Settlement

Filed by Gabriela Downie (Plaintiff)

11/01/2019 Order (stipulation to continue hearing)

10/31/2019 Minute Order ( (Case Management Conference))
Filed by Clerk

08/14/2019 Stipulation and Order (Joint Stipulation to Continue Hearing on General Demurrers And Initial Status Conference)
Filed by Riot Games, Inc. (Defendant)

07/17/2019 Certificate of Mailing for ((Court Order) of 07/17/2019)

Filed by Cler k

07/17/2019 Minute Order ( (Cou rt Order))

Filed by Clerk

06/27/2019 Order (re Defendant's General Demurrers)

06/27/2019 Stipulation and Order to use Certified Shorthand Reporter
06/27/2019 Minute Order ( (Hearing on Demurrer - without Motion to Strike; Case Manageme... ))
Filed by Cler k

06/25/2019 Certificate of Mailing for (Minute Order (Court Order) of 06/25/2019)

Filed by Clerk

06/25/2019 Minute Order ((Court Order) of 06/25/2019)

Filed by Clerk

06/24/2019 Notice (of Filing Response to Notice of Related Case)

Filed by Riot Games, Inc. (Defendant)

06/20/2019 Proof of Service (not Summons and Complaint)

Filed by Riot Games, Inc. (Def endant)

06/20/2019 Reply (In Support of Its General Demurrers)

Filed by Riot Games, Inc. (Defendant)

06/19/ 2019 Notice of Related Case

Filed by Department of Fair Employment and Housing (Non-Party)

06/14/2019 Opposition ( to Defendant's Demurrer to Complaint)

Filed by Gabriela Downie (Plaintiff)

05/01/2019 Notice of Ruling

Filed by Gabriela Downie (Plaintiff)

04/29/2019 Order Appointing Cou rt Approved Reporter as Official Reporter Pro Tempore
Filed by Riot Games, Inc. (Defendant)

04/29/2019 Minute Order ( (Case Management Conference))

Filed by Clerk

04/25/2019 Proof of Service by Mail

Filed by Riot Games, Inc. (Defendant)

04/ 25/2019 Declaration (of Katherine V.A. Smith in Support of Defendant Riot Game lnc.'s General Demurrer s)
Filed by Riot Games, Inc. (Defendant)

04/25/ 2019 Demurrer - without Motion to Strike

Filed by Riot Games, Inc. (Defendant)

04/19/2019 Request for Dismissal

Filed by Gabriela Downie (Plaintiff)

04/ 17/2019 Request for Dismissal

Filed by Gabriela Downie (Plaintiff)

04/17/2019 Request for Dismissal (Causes of Action Nos. 8 & 9 (Rights of Publicity Violations))
Filed by Gabriela Downie (Plaintiff)

04/16/ 2019 Case Management Statement

Filed by Gabriela Downie (Plaintiff)

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04/12/2019 Case Management Stat ement
Filed by Riot Games, Inc. (Defendant)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 04/11/2019

04/11/2019 Stipulation and Order (FOR EXTENSION OF TIME TO RESPOND TO COMPLAINT)

Filed by Riot Games, Inc. (Defendant)

03/11/2019 Stipulation - No Order UOINT STIPULATION FOR EXTENSION OF TIME TO RESPOND TO COMPLAINT)
Filed by Riot Games. Inc. (Defendant)

02/13/2019 Notice and Acknowledgment of Receipt

Filed by Gabriela Downie (Plaintiff)

02/08/2019 Notice and Acknowledgment of Receipt

Filed by Gabriela Downie (Plaintiff)

01/10/2019 Notice of Case Management Conference

Filed by Clerk

12/27/2018 Notice of Case Assignment- Unlimited Civil Case

Filed by Clerk

12/27/2018 Summons (on Complaint)

Filed by Clerk

12/27/2018 Civil Case Cover Sheet

Filed by Gabriela Downie (Plaintiff)

12/27/2018 Complaint (for Damages)

Filed by Gabriela Downie (Plaintiff)

Click on any of the below link(s) to see Regist er of Action Items on o r before the date indicated:
TOP 04/11/2019

PROCEEDINGS HELD
Case Information I Register Of Actions I FUTURE HEARINGS I PARTY INFORMATION I Documents Filed I Proceedings Held

Proceedings Held (Proceeding dates listed in descending order)

12/1 1/2019 at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding
Case Management Conference - Not Held -Advanced and Vacated

12/03/2019 at 08:12 AM in Department 50, Teresa A. Beaudet, Presiding

Court O rder

10/31/2019 at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding

Case Management Conference - Not Held - Continued - Stipulation

08/15/ 2019 at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding

Case Management Conference - Not Held - Continued-Stipulation

08/15/2019 at 08:30 AM in Department 50, Teresa A. Beaudet. Presiding

Hearing on Demurrer - without Motion to Strike - Not Held - Taken Off Calendar by Party

07/ 26/2019 at 08:30 AM in Department 50, Teresa A. Beaudet. Presiding

Hearing on Demurrer - without Motion to Strike - Not Held -Advanced and Continued - by Court

07/17/2019 at 11 :27 AM in Department 50, Teresa A. Beaudet. Presiding

Court Order

06/27/2019 at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding

Case Management Conference - Held - Continued

06/27/2019 at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding

Hearing on Demurrer - without Motion to St rike - Held - Continued

06/25/2019 at 3:00 PM in Department

Court Order - Held

04/29/2019 at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding

Case Management Conference - Not Held - Advanced and Continued - by Court

REGISTER OF ACTIONS
Case Information I Register Of Actions I FUTURE HEARINGS I PARTY INFORMATION I Documents Filed I Proceedings Held

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Register of Actions (Listed in descending order)

Click on any of the below link(s) to see Register of Action Items on or before the date ind icated:
04/17/2019

12/20/2019 Request for Dismissal

Filed by Gabriela Downie (Plaintiff)

12/1112019 at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding

Case Management Conference• Not Held• Advanced and Vacated

12/09/2019 Notice (Plaintiffs Notice of Order to Show Cause re Dismissal.)

Filed by Gabriela Downie (Plaintiff)

12/03/2019 at08:12 AM in Department 50, Teresa A. Beaudet, Presiding

Court Order

12/03/2019 Notice of Settlement

Filed by Gabriela Downie (Plaintiff)

12/03/2019 Minute Order ( (Court Order))

Filed by Clerk

12/03/2019 Ce(tificate of Mailing for ((Court Order) of 12/03/2019)

Filed by Clerk

11/01/2019 Order (stipulation to continue hearing)

10/31/2019 at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding
Case Ma nagement Conference• Not Held• Continued-Stipulation

10/31/2019 Minute Order ( (Case Management Conference))

Filed by Clerk

08/15/2019 at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding

Hearing on Demur rer · without Motion to Strike - Not Held - Taken Off Calendar by Party

08/15/2019 at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding

Case Management Conference - Not Held - Continued - Stipulation

08/14/2019 Stipulation and Order Uoint Stipulation to Continue Hearing on General Demurrers And Initial Status Conference)
Filed by Riot Games, Inc. (Defendant)

07/26/2019 at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding

Hearing on Demurrer - without Motion to Strike - Not Held -Advanced and Continued - by Court

07/17/2019 at 11 :27 AM in Department 50, Teresa A. Beaudet, Presiding

Court Order

07/17/2019 Certificate of Mailing for ((Court Order) of 07/1712019)

Filed by Clerk

07/1 7/2019 Minute Order ( (Court Order))

Filed by Clerk

06/27/2019 at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding

Hearing on Demurrer - without Motion to Strike - Held - Continued

06/27/2019 at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding

Case Management Conference - Held - Continued ·
06/27/2019 Order (re Defendant's General Demurrers)
06/27/2019 Stipulation and Order to use Certified Shorthand Reporter

06/27/2019 Minute Order ( (Hearing on Demurrer -without M otion to Stri ke; Case Manageme ..))
Filed by Clerk

06/25/2019 at 3:00 PM in Department

Court Order - Held

06/25/2019 Certificate of Mailing for (Minute Order (Court Order) of 06/25/2019)

Filed by Clerk

06/25/2019 Minute Order ((Court Order) of 06/25/2019)

Filed by Clerk

06/24/2019 Notice (of Filing Response to Notice of Related Case)

Filed by Riot Games, Inc. (Defendant)

06/20/2019 Proof of Service (not Summons and Complaint)

Filed by Riot Games, Inc. (Defendant)

06/20/2019 Reply (In Support of Its General Demurrers)

Filed by Rio t Games, Inc. (Defendant)

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06/19/2019 Notice of Related Case
Filed by Department of Fair Employment and Housing (Non-Party)

06/14/2019 Opposition ( to Defendant's Demurrer to Complaint)

Filed by Gabriela Downie (Plaintiff)

05/01/2019 Notice of Ruling

Filed by Gabriela Downie (Plaintiff)

04/29/2019 at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding

Case Management Conference - Not Held - Advanced and Continued - by Court

04/29/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Riot Games, Inc. (Defendant)

04/29/2019 Minute Order ( (Case Management Conference))

Filed by Clerk

04/25/2019 Proof of Service by Mail

Filed by Rio t Games, Inc. (Defendant)

04/25/2019 Declaration (of Katherine VA Smith in Support of Defendant Riot Game lnc.'s General Demurrers)
Filed by Riot Games, Inc. (Defendant)

04/25/2019 Demurrer - without Motion to Strike

Filed by Riot Games, Inc. (Defendant)

04/19/201 9 Request for Dismissal

Filed by Gabriela Downie (Plaintiff)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 04/17/2019

04/17/2019 Request for Dismissal

Filed by Gabriela Downie (Plaintiff)

04/17/2019 Request for Dismissal (Causes of Action Nos. 8 & 9 (Rights of Publicity Violations))
Filed by Gabriela Downie (Plaintiff)

04/16/2019 Case Management Statement

Filed by Gabriela Downie (Plaintiff)

04/12/2019 Case Management Statement

Filed by Riot Games, Inc. (Defendant)

04/11/2019 Stipulation and Order (FOR EXTENSION OF TIME TO RESPOND TO COMPLAINTI

Flied by Riot Games, Inc. (Defendant)

03/11/2019 Stipulation - No Order UOINT STIPULATION FOR EXTENSION OF TIME TO RESPOND TO COMPLAINT)
Filed by Riot Games, Inc. (Defendant)

02/13/2019 Notice and Acknowledgment of Receipt

Filed by Gabriela Downie (Plaintiff)

02/08/2019 Notice and Acknowledgm ent of Receipt

Filed by Gabriela Downie (Plaintiff)

01/ 10/2019 Notice of Case Management Conference

Filed by Clerk

12/27/2018 Complaint (for Damages)

Filed by Gabriela Downie (Plaintiff)

12/27/2018 Civil Case Cover Sheet

Filed by Gabriela Downie (Plaintiff)

12/27/2018 Summons (on Complaint)

Filed by Clerk

12/27/2018 Notice of Case Assignment - Unlimited Civil Case

Filed by Cler k

Click on any of the below link(s) to see Register of Action Items on or be fore the date indicated:
TOP 04/17/2019

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Privacy Statement I D1scla1mer I Employment I ADA I Holidays I Comment on our Website Copyright© 2020 Superior Court of Cahfom1a, County of Los Angeles

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EXHIBIT D
 (

ih#ii □
The Path Forward: Class
Action Update
Aug 23, 2019

As many of you know, there have been a few lawsuits filed against Riot since last year,
including a proposed class action that alleged claims of gender discrimination in pay and
promotion, sexual harassment, and retaliation against women working at Riot offices in
California.
We've taken these claims very seriously and have been working on many fronts to
review and address the lawsuits and the concerns that were raised. We've done a deep
dive into our past, our culture, and our systems and processes. Last August, we
announced our First Steps Forward, and those steps continue today. We will continue
to strive to be a great company and one that cares about its employees and its players.

After extensively reviewing these issues, we can confidently state that gender
discrimination (in pay or promotion), sexual harassment, and retaliation are not systemic
issues at Riot.

But, what we also learned during this process was that some Rioters have had
experiences that did not live up to our values or culture. In addition, we've encountered
considerable fatigue among Rioters, who have been drained by constant engagement
with the internal and external dialogues emerging from these lawsuits and recurring
media cycles.

We made a commitment to Rioters that we would be willing to take the steps necessary
to build trust and to demonstrate that we're serious about Riot evolving into an excellent
place to work for all Rioters. Under these circumstances, we've had to look critically at
our litigation approach to the class action lawsuit. While we believed that we had a
strong position to litigate, we realized that in the long run , doing what is best for both Riot
and Rioters was our ideal outcome. Therefore, rather than entrench ourselves and
continue to litigate, we chose to pivot and try to take an approach that we believe best
demonstrates our commitment to owning our past, and to healing the company so that
we can move forward together.

As such, we're pleased to announce that we've come to an agreement in principle

to settle the class action lawsuit against Riot.

We realize that this is a path that many companies in our position may not have chosen ,
but we felt it was the strongest statement we could make to Rioters, and prospective
Rioters, that we're prepared to go over and above in order to move forward . Both sides
believe that this proposed settlement, once finalized, is fair for all parties involved. In
addition, we're hopeful that the settlement will allow us to continue our momentum (as
described here and here) in making Riot a leader in inclusive workplaces.

At this time, we're still early in the process and cannot share the details, but wanted to
keep our promise to be as transparent and timely as possible in communicating. We're
continuing to work with the class plaintiffs and their counsel to finalize the details. Most
importantly, we want to emphasize that any proposed settlement will be subject to the
Court's oversight, and the Court will need to review and approve all details of any
agreement. We want to be respectful of this ·process.

A joint press release from plaintiff's counsel and Riot is below:

Preliminary Settlement Agreement Reached in Lawsuit Filed by Women Against

Riot Games

August 22, 2019 - LOS ANGELES - All parties have reached an agreement in principle
today to resolve the class action case against Riot Games.

"This is a very strong settlement agreement that provides meaningful and fair value to
class members for their experiences at Riot Games," said Ryan Saba of Rosen Saba,
LLP, the attorney representing the plaintiffs. "This is a clear indication that Riot is
dedicated to making progress in evolving its culture and employment practices. A
number of significant changes to the corporate culture have been made, including
increase.d transparency and industry-leading diversity and inclusion programs. The many
Riot employees who spoke up, including the plaintiffs, significantly helped to change the
culture at Riot."

The parties will now move toward seeking court approval of the proposed settlement,
and we will provide additional details about its terms when that filing takes place.

"We are grateful for every Rioter who has come forward with their concerns and believe
this resolution is fair for everyone involved," said Nicolo Laurent, CEO of Riot Games.
"With this agreement, we are honoring our commitment to find the best and most
expeditious way for all Rioters, and Riot, to move forward and heal. Over the past year,
we've made substantial progress toward evolving our culture and will continue to pursue
this work as we strive to be the most inclusive company in gaming."

/ Learn about our work in diversity , inclusi0n , & Riot culture

EXHIBIT E /
 1 ROSEN ◊ SABA, LLP
RYAN D. SABA, ESQ. (State Bar No. 192370) S ert IFColl..ED
2 rsaba rosensaba.com u8
or ur1 Of Callfomla
TYLE C. VANDERPOOL, ESQ. (State Bar No. 279175) ountv nt Los Anaales
3
tvander ool rosensaba.com
9350 ilshire Boulevard, Suite 250
SEP 19 2019
4
Beverly Hills, California 90212 Sherri R. ~Executive Officer/Cte,x ~ Cooo
Telel)hone: (310) 285-1727 By >~~--::::Toputy
5 lsanc LOI!;)
Facsimile: (310) 285-1728
6
Attorneys for Plaintiffs,
MELANIE MCCRACKEN and JESSICA NEGRON
7

8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
N
N
0 10 COUNTY OF LOS ANGELES- CENTRAL DISTRICT
Cl)

<(
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a. MELANIE MCCRACKEN, an individual, Case No.: l 8STCV03957
..J &
..J I 12 and JESSICA NEGRON, an individual, Hon. Elihu M. Berle
-
4:
>,

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Dept. SS-6
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4: m Plaintiffs, CLASS ACTION
en c5
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◊ V. PLAlNTIFFS' NOTICE OF RULING
.l!!
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[/J
-e" RIOT GAMES, INC., a Delaware CONFERENCE
0 ro 16
>
~ Q) corporation; and DOES 1 through 10,
::i
0 17 inclusive, Date Filed: November 6, 2018
co
~ Trial Date: None Set
:E 18
!E. De endants.
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20

21

22

23

24

25

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27

28

PLAIN l'IFFS' NOTICE OF ROLING FOLLOWING STATUS CONFERENCE

 TO TIDS HONORABLE COURT AND ALL PARTIES AND THEIR

2 ATTORNEYS OF RECORD:
3 PLEASE TAKE NOTICE THAT on September 5, 2019, the parties appeared for a

4 status conference. Prior to the status conference and pursuant to California Rules of Court,

5 Rule 3.1 385, the Court was informed that Plaintiffs had reached a settlement with respect to

6 their class actio? claims against Defendant. Accordingly, the Court continued the status

7 conference and set the hearing of Plaintiffs' forthcoming Motion for Preliminary Approval of

8 Settlement until November 6, 2019, at 11 :00 a.m. in Department 6 of the above-named Court,

9 located at 312 N. Spring St., Los Angeles, CA 90012, the Honorable Elihu M. Berle presiding.
N
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The paities are to submit a status report by no later than October 30, 2019.
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. >,
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l{) 14 By: Isl Tyler Vanderpool
◊ N
RYAN D. SABA, ESQ.
2
z ·s 15 TYLER C. VANDERPOOL, ESQ.
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Ill 'E Attorneys for Plaintiffs

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2
PLAINTIFFS ' NOTICE OF ROLING FOLLOWING STA !'OS CONFERENCE
 PROOF OF SERVICE

2 STATE OF CALIFORNIA )
) ss
3 COUNTY OF LOS ANGELES )

4 I am employed in the County of Los Angeles, State of California. I am over the age
of 18 and not a party to the within action; my business address is: 9350 Wilshire Boulevard,
5 Suite 250, Beverly Hills, California 90212.
6
On September 19, 2019, I served the foregoing document described as:
7 PLAINTIFFS' NOTICE OF RULING FOLLOWING STATUS CONFERENCE, on
the interested parties in this action by placing a true copy thereof enclosed in sealed
8 envelopes addressed as follows:
N 9
N GIBSON, DUNN & CRUTCHER LLP Attorneys for Defendant RIOT GAMES,
0
m 10 Catherine A. Conway, Esq. INC.
<(
() Katherine V.A. Smith, Esq.
~ 11 333 S. Grand Ave. Tel: (213) 229-7000
a. i:
..J >, Los Angeles, CA 90071-3197 Fax: (213) 229-6822
..J 12
~ ~
<t > Cl)
DJ CD 13 [email protected]
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ksmith@i:,ibsondunn.com
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·s BY MAIL - As follows: I am "readily familiar" with the firm 's practice of collection
z (j)
15 and processing correspondence for mailing. Under that practice it would be deposited with
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> U.S. postal service on that same day with postage thereon fully prepaid at Beverly Hills,
D ~ 16 California in the ordinaty course of business. I am aware that on motion of the party served,
a:: :::,
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CD service is presumed invalid if postal cancellation date or postage meter date is more than one
~ 17 day after date of deposit for mailing in affidavit.
:c
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~ 18 BY E-MAIL OR ELECTRONIC TRANSMISSION
0
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(') 19 I declare under penalty of perjury under the laws of the State of California that the
m
above is true and correct
20
Executed on September 19, 2019, at Beverly Hills, California.
21

22 Isl Danielle Sanchez

23

24

1-......1
,:::::, 26

27

28

3
EXHIBIT F
 Atkinson-Ba ker, Inc.
www.depo.com

1 SUPERIOR COURT OF THE STATE OF CALIFORNIA

2 COUNTY OF LOS ANGELES
3 DEPT SSC - 6 HON . ELIHU M. BERLE , JUDGE

~
4
5 MELANIE MCCRACKEN, ET AL , [ CERTIFIED COPY]
6 PLAINTIFF , )
vs )CASE NO. : 18STCV03957
7 )
RIOT GAMES , INC ., ET AL , )
8 )
DEFENDANT . )
9 _ ________________ )
10
REPORTER'S TRANSCRIPT OF ORAL PROCEEDINGS
11 WEDNESDAY, DECEMBER 4TH , 2019
12 FOR THE PLAINTIFF:
13 ROSEN SABA, LLP
BY : RYAN SABA, ESQ .
14 9350 WILSHIRE BOULEVARD
SUITE 250
15 BEVERLY HILLS 1 CA 90212
16
FOR THE DEFENDANT : RIOT GAMES
17
GIBSON, DUNN & CRUTCHER
18 BY: CATHERINE ANNE CONWAY, ESQ .
333 SOUTH GRAND AVENUE
19 LOS ANGELES, CA 90071
20
FOR THE DEFENDANT :
21
DEPT . OF FAI R EMPLOYMENT & HOUSING
22 LEGAL UNIT
BY: MARI MAYEDA, ESQ.
23 IRINA TRASOVAN , ESQ .
320 WEST FOURTH STREET
24 SUITE 1000
LOS ANGELES, CA 90013
25
26 REPORTED BY
JANE HONG- ELSEY; CSR 11975
27 OFFICIAL COURT REPORTER PRO TEM
28

Transcript of Proceedings
December 4, 20 19
 Atkinson-Baker, Inc.
www.depo.com

1 MASTER INDEX
2 CHRONOLOGICAL WITNESS INDEX
3
PLAINTIFF ' S DIR CROSS REDIR RECROSS
4
5 (NONE)
6

8
ALPHABETICAL WITNESS INDEX
9
WITNESS DIR CROSS REDIR RECROSS
10
11 (NONE)
12
13
14 EXHIBITS INDEX
15
MARKED RECEIVED
16 NO. DESCRIPTION. FOR I.D. TO EVID .
17 ( NONE OFFERED . )
18
19
20
21
22
23
24
25
26
27
28

Transcript of Proceedings
December 4, 20 19
 Atkinson-Baker, Inc.
www.depo.com

1 CASE NO . 18STCV03957
2 CASE NAME : MCCRACKEN VS RIOT

3 LOS ANGELES, CALIFORNIA WEDNESDAY , DECEMBER 4, 2019

4 DEPARTMENT SSC - 4 HON . ELIHU M. BERLE, JUDGE

5 APPEARANCES : (AS HERETOFORE NOTED)

6 REPORTER : JANE HONG-ELSEY, CSR NO. 11975

7 TIME : A. M. SESSION

8
9 THE COURT: CALLING THE MCCRACKEN VERSUS RIOT
10 CASE .
11 MS. CONWAY: CATHERINE CONWAY FOR RI OT GAMES.
12 MR. SABA: GOOD MORNING , YOUR HONOR. RYAN SABA
13 FOR THE PLAINTIFF AND THE CLASS .
14 MS. MAYEDA : MARI MAYEDA FOR THE CALIFORN I A

15 DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING.

16 MS . TRASOVAN : IRINA TRASOVAN ALSO FOR THE
17 CALIFORN I A DEPARTMENT OF FAIR HOUSING AND EMPLOYMENT .
18 THE COURT: I HAVE RECEIVED AN ORDER FOR THE
19 APPOINTMENT OF MS. JANE HONG- ELSEY AS COURT REPORTER, PRO
20 TEM. ANY OBJ ECTIONS?

21 NOT HEARING ANY OBJECTION , MS. HONG - ELSEY IS

22 APPOINTED COURT REPORTER PRO TEM.
23 GOOD MORNING.
24 THE MATTER WAS SCHEDULED FOR A HEARING ON A MOTION
25 FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT.

26 DID YOU FILE A MOTION?

27 MR . SABA : WE DID, YES .
28 THE COURT : WHEN WAS IT FILED? .

1
Transcript of Proceedings
December 4, 2019
 Atkinson-Baker, Inc.
www.depo.com

1 MR. SABA : WEDNESDAY , LAST WEEK.

2 THE COURT: WHEN WAS THE DUE DATE?

3 MR . SABA: A LONG TIME BEFORE .

4 THE COURT : WHAT WAS THE REASON FOR THE DELAY?
5 MR. SABA : THERE WAS A COMPLICATED NEGOTIATION

6 WITH COUNSEL WORKING TOGETHER . ONCE WE ABLE TO GET THE

7 DOCUMENTS AGREED UPON, IT TOOK US TIME TO GET SIGNATURES.
8 IT WAS A HARD FOUGHT NEGOTIATION, YOUR HONOR, ON
9 BOTH SIDES.
10 THE COURT: DO YOU THINK IT WOULD HAVE BEEN NICE
11 TO NOTIFY THE COURT?
12 MR . SABA: YES , YOUR HONOR. WE DID FILE A
13 STIPULATION ASKING TO CONTINUE THIS HEARING TO JANUARY 10 .
14 THE COURT : WHEN DID YOU FILE THAT STIPULATION?
15 MR. SABA : WEDNESDAY .
16 THE CLERK : YOUR HONOR , THIS STILL REFLECTS
17 DECEMBER 2ND , THE MOTION FILED MONDAY , DECEMBER 2ND, AS WELL
18 AS THE STIPULATION TO CONTINUE , DECEMBER 2ND . WE STILL HAVE
19 NOT RE CEIVED THEM .
20 THE COURT: SET THIS FOR A HEARING FOR A MOTION
21 FOR PRELIMINARY APPROVAL JANUARY 22ND , AT 1: 30.
22 COUNSEL FOR PLAINTIFF , GIVE NOTICE .
23 MR. SABA: THANK YOU.
24 (ADJOURNED.)
25
26
27

28

2
Transcript of Proceedings
December 4, 2 019
 Atkinson-Baker, Jnc.
www.depo .com

1 SUPERIOR COURT OF THE STATE OF CALIFORNIA

2 COUNTY OF LOS ANGELES
3 DEPT SSC- 6 HON. ELIHU M. BERLE, JUDGE
4

5 MELANIE MC CRACKEN, ET AL , )
)
6 PLAINTIFF, )
vs )CASE NO. : 1 8STCV03957
7 )
RIOT GAMES , I NC . , ET AL , )
8 )
DEFENDANT . )
9 )

10
11 I, JANE HONG- ELSEY, C . S . R. NO . 11975, REPORTER OF THE
12 ABOVE- ENTITLED COURT, DO HEREBY CERT I FY:
13 THAT I AM A CERTIFIED SHORTHAND REPORTER OF THE STATE
14 OF CALIFORNIA, DULY LICENSED TO PRACTICE ; THAT I DID REPORT
15 IN STENOTYPE ORAL PROCEED I NGS , PAGES 1 TO 2 UPON HEARING OF
16 THE AFOREMENTIONED CAUSE AT THE TIME AND PLACE HEREIN BEFORE
17 SET FORTH; THAT THE FOREGO I NG CONSTITUTE TO THE BEST OF MY
18 KNOWLEDGE AND BELIEF , A FULL , TRUE , AND CORRECT
19 TRANSCRIPTION FROM MY SAID SHORTHAND NOTES SO TAKEN FOR THE
20 DATE : DECEMBER 4 , 2019 .
21 DATED AT RIVERSIDE , CALIFORNIA; DECEMBER 12, 2019.
22
23
24
25
HONG- ELSEY; C . S . R . , 11975
26
27

28

Tran script of Proceedings

Decembe r 4, 20 19
 Atkinson-Baker, Inc.
www.depo.com
p age

A DESCRIPTION 2:16 M 1:3,43:3 SET 2:20 3 :17 2ND 2 :17,1 7,18

DIR 2:3,9 MARI 1:22,14 SETTLEMENT 1:25
A.M 1:7
DOCUMENTS 2:7 MARKED 2:15 SHORTHAND 3:13,19 3
ABLE 2:6
DUE 2:2 MASTER 2:1 SIDES 2:9 320 1:23
ABOVE-ENTITLED 3:12
DULY 3:14 MATTER 1:24 SIGNATURES 2:7 333 1:18
ACTION 1:25
DUNN 1:17 MAYEDA 1:22,14 ,14 SOUTH 1:18
ADJOURNED 2:24
MC 1:5,2,9 3:5 SSC-4 1:4 4
AFOREMENTIONED
E MELANIE 1:5 3:5 SSC-6 1:3 3:3
3:16 4 1:3 3:20
ELIHU 1:3,4 3:3 MONDAY 2:17 STATE 1:1 3:1 ,13
AGREED 2:7 4TH 1:11
EMPLOYMENT 1 :21 ,15 MORNING 1:12,23 STENOTYPE 3:15
AL 1:5,7 3:5,7
1: 17 MOTION 1:24 ,26 2: 17,20 STIPULATION 2:13,14
ALPHABETICAL 2:8 5
ESQ 1:13, 18,22,23 2:18
ANGELES 1:2,19,24,3
ET 1:5,7 3:5,7 N STREET 1:23
3:2
EVID 2: 16 NAME 1:2 SUITE 1 :14,24 6
ANNE1 :18
EXHIBITS 2:14 NEGOTIATION 2:5,8 SUPERIOR 1:1 3: 1
APPEARANCES 1:5
APPOINTED 1:22 NICE 2: 10 7
APPOINTMENT 1:19 F NOTED 1:5 T
APPROVAL 1:25 2:21 FAIR 1:21 ,15,17 NOTES 3:19 TAKEN 3:19 8
ASKING 2:13 FILE 1:26 2:12,14 NOTICE 2:22 TEM 1 :27,20,22
AVENUE 1:18 FILED 1:28 2:17 NOTIFY 2:11 THANK 2:23
9
FOREGOING 3:17 THINK 2:10
0 TIME 1:7 2:3,7 3:1 6 90013 1:24
B FORTH 3:17 90071 1:19
FOUGHT 2:8 OBJECTION 1 :21 TRANSCRIPT 1:10
BELIEF 3:18 902121 :15
FOURTH 1:23 OBJECTIONS 1 :20 TRANSCRIPTION 3:19
BERLE 1:3,4 3:3 9350 1 :14
FULL 3:18 OFFERED 2:17 TRASOVAN 1:23,16,16
BEST 3:17
OFFICIAL 1 :27 TRUE 3:18
BEVERLY 1:15
BOULEVARD 1 :14 G ONCE 2:6
GAMES 1:7,16,11 3:7 ORAL 1:10 3:15 u
C GIBSON 1:17 ORDER1 :18 UNIT 1:22
C.S.R 3: 11,25 GIVE 2:22
GOOD 1:12,23 p V
CA 1: 15,19,24
CALIFORNIA 1:1,3,14,17 GRAND 1:18 PAGES 3:15 VERSUS 1:9
3:1 ,14,21 PLACE 3:16 VS 1:6,2 3:6
CALLING 1:9 H PLAINTIFF 1 :6, 12, 13
CASE 1 :6, 1,2,10 3:6 HARD 2:8 2:22 3:6 w____
CATHERINE 1:18,11 HEARING 1:21,24 2:13 PLAINTIFF'S 2:3 WEDNESDAY 1:11,3 2:1
CAUSE 3:16 2:20 3:15 PRACTICE 3:14 2:15
CERTIFIED 3:13 HERETOFORE 1 :5 PRELIMINARY 1:25 2:21 WEEK 2: 1
CERTIFY 3:12 HILLS 1:15 PRO 1:27, 19,22 WEST 1:23
CHRONOLOGICAL 2:2 HON 1 :3,4 3:3 PROCEEDINGS 1:10 WILSHIRE 1:14
CLASS 1:13,25 HONG-ELSEY 1 :26,6, 19 3:15 WITNESS 2:2,8,9
CLERK 2:16 1:21 3:11,25 WORKING2:6
COMPLICATED 2:5 HONOR 1:12 2:8,12,16 a
CONSTITUTE 3:1 7 HOUSING 1 :21, 15, 17 X
CONTINUE 2:13,18 R
CONWAY 1 :18,11, 11 I y
REASON 2:4
CORRECT 3:18
I.D 2:16 RECEIVED 2 :15 1:18
COUNSEL 2:6,22 INDEX 2:1 ,2,8,14 2: 19
COUNTY 1:2 3:2 z
!RINA 1 :23, 16 RECROSS 2:3,9
COURT 1:1,27,9,18,19
REDIR 2:3,9
1 :22,28 2:2,4, 10, 11, 14 0
J REFLECTS 2 :16
2:203:1 ,12 REPORT 3:14
CRACKEN 1:5,2,9 3:5 JANE 1:26,6, 19 3:11 ,25
JANUARY 2:13,21 REPORTED 1 :26 1
CROSS 2:3,9
JUDGE 1 :3,4 3:3 REPORTER 1:27,6,19 1 3: 15
CRUTCHER 1:17
1 :22 3: 11 ,13 1 :30 2:21
CSR 1:26,6
REPORTER'S 1:10 10 2:13
K
RIOT 1:7, 16,2,9, 11 3:7 1000 1:24
D KNOWLEDGE 3:18
RIVERSIDE 3:21 119751 :26,6 3:11 ,25
DATE 2 :2 3:20 ROSEN 1 :13 12 3:21
DATED 3:21 L RYAN 1:13,12 18STCV03957 1:6, 1 3:6
DECEMBER 1 :11,3 2:17 LEGAL 1:22
2 :17,18 3:20,21 LICENSED 3 :14 s 2
DEFENDANT 1:8,16,20 LLP 1:13
SABA 1:13,13,12,12,27 2 3:15
3:8 LONG 2:3
2: 1,3,5,12,15,23 2019 1 :11 ,3 3:20,21
DELAY 2:4 LOS 1:2,19,24,3 3:2 SCHEDULED 1:24
DEPARTMENT 1:4,15,17 22ND 2:21
SESSION 1:7 250 1:14
DEPT 1 :3,21 3:3 M

Transcript of Proceedings
December 4, 2019
Exhibit G
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4/4
EXHIBIT H
 Pages 1 - 14

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Before The Honorable Yvonne Gonzalez Rogers, Judge

IN RE RH, INC . SECURITIES

LITIGATION NO. CV 17 - 00554-YGR

Oakland, California
Tuesday, June 18, 2019

TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

For Plaintiffs:
BERNSTEIN, LITOWITZ, BERGER &
GROSSMANN, LLP
12481 High Bluff Drive - Suite 300
San Diego, CA 92130
BY: JONATHAN D. USLANER, ESQUIRE

BERNSTEIN, LITOWITZ, BERGER &

GROSSMANN, LLP
1251 Avenue of the Americas
New York, NY 10020
BY: DAVID L. DUNCAN, ESQUIRE

For Defendants:
MORRISON & FOERSTER, LLP
425 Market Street
San Francisco, CA 94105
BY: RYAN M. KEATS, ESQUIRE
MARK R.S. FOSTER, ESQUIRE

Reported By: Pame l a Batalo-Hebel, CSR No. 3593 , RMR, FCRR

Official Reporter
 2

1 Tuesday - June 18, 2019 2:03 p.m.

2 P R O C E E D I N G S

3 ---000---

4 THE CLERK: Calling CV 17-554, In Re RH, Inc.

5 Securities Litigation .

6 Counsel, please come forward and state your appearances.

7 MR. USLANER: Good afternoon, Your Honor . Jonathan

8 Uslaner on behalf of lead plaintiffs in the class from the law

9 firm of Bernstein, Litowitz, Berger & Grossmann. Along with me

10 is my colleague, David Duncan.

11 THE COURT: All right. Good afternoon.

12 MR. KEATS: Good afternoon, Your Honor. Ryan Keats on

13 behalf of defendants. With me today is my colleague, Mark

14 Foster .

15 THE COURT : Okay.

16 So the first thing I want to address is the fact of this

17 supplemental agreement. First of all, why wasn't I informed

18 about it in your papers?

19 MR. USLANER: Your Honor, it was included as

20 there's a reference to it in both the notice and the

21 stipulation of settlement.

22 THE COURT: Why wasn't it referenced to me in your

23 moving papers?

24 MR . USLANER: If it wasn't referenced, that was a

25 matter of mere oversight. There was no effort to not inform

 3

1 the Court of the agreement.

2 THE COURT: Can you find it?

3 MR. USLANER: I'm looking to see whether or not indeed

4 it was included in the papers. It was definitely included in

5 the attachments to the papers and the stipulation.

6 THE COURT: We found it buried in a settlement

7 agreement.

8 MR. USLANER: Okay.

9 THE COURT: And I have to tell you, I was not pleased

10 about that. We should not have to find something, which, in my

11 view, is significant, by combing in the underlying documents.

12 MR. USLANER: I would agree.

13 THE COURT: There is nothing in your memo that

14 suggests that you entered into a side agreement with the

15 defendants.

16 MR. USLANER: Your Honor, with respect -- if I may

17 respond?

18 And I do appreciate that, and it truly was an oversight on

19 our part if it was not included.

20 With respect to that, I would just respond that it --

21 there is a reference in the not ice. There is a reference in

22 the stipulation of settlement. This was -- this is a standard

23 provision to have an opt-out threshold.

24 THE COURT: I don't disagree with you that it is not

25 uncommon.
 4

1 MR. USLANER: Right.

2 THE COURT: What I disagree with is the fact that we

3 read your motion.

4 MR. USLANER: Sure.

5 THE COURT: There is no reference to a supplemental

6 and side agreement, and there is nothing in the moving papers

7 that tells me what that supplemental agreement even refers to.

8 MR. USLANER: Sure .

9 THE COURT: So even the notice -- even the notice

10 doesn't tell me what your side agreement relates to.

11 The reason that I ordered you to produce it is because I

12 didn't know what was in it.

13 MR. USLANER: Sure . So with respect to that, let

14 me -- let me respond.

15 THE COURT: In fact, to the contrary. Paragraph 41 of

16 the settlement agreement indicates that there this supplemental

17 agreement which "shall not be filed with the court."

18 MR. USLANER: Right.

19 THE COURT: "Shall not be filed."

20 MR. USLANER: Right . As well as _there's a reference

21 to it, Your Honor, in paragraph 43 of the notice which

22 indicates, Your Honor , that RH has the right to terminate the

23 settlement if valid requests for exclusion are receive d from

24 persons and entities entitled to be members of the class in an

25 amount that exceeds --

 5

1 THE COURT: And where does that paragraph 43 indicate

2 that the details of that have been put forth in a supplemental

3 agreement that the plaintiffs have not filed with the court?

4 Where does it say that?

5 MR. USLANER: It does not say that, Your Honor.

6 THE COURT: So how am I supposed to know that? How am

7 I supposed to read your mind and know what's in a supplemental

8 agreement where you've given me and the class absolutely zero

9 indication as to what's in your side agreement?

10 MR. USLANER: And then with respect to the reference

11 in the stipulation, Your Honor -- and I recognize, Your Honor,

12 we did a poor job in identifying this in the memo of law, and

13 that is our oversight.

14 THE COURT: A poor job -- you did no job; that is, you

15 totally missed it.

16 MR. USLANER: Then with respect to paragraph 41 of the

17 stipulation, which was attached to the memo -- in paragraph 41,

18 it states that there's -- "RH shall have the unilateral right

19 to terminate the settlement in the event that class members

20 timely and validly requesting exclusion from the class meet the

21 conditions set forth in a confidential supplemental agreement . "

22 THE COURT: Okay. I have advised the entire Northern

23 District bench of what happened in this case. It is entirely

24 inappropriate. We should not have to find this out in t he

25 manner in which we found it. And I expect more from Morrison &
 6

1 Foerster as well.

2 You have an opt-out threshold. If they have a lapse , you

3 need to advise them that they need to advise the Court. So

4 both of your law firms are now -- at least have been notified

5 to my colleagues that you have done this because I really don't

6 think it's appropriate, and perhaps it was an oversight.

7 MR. USLANER: It was, Your Honor.

8 THE COURT: But I don't think that, especially in this

9 case -- I mean, I have to say I found the defendants' conduct

10 in this case and not you in particular, that is, the

11 lawyers, you were just their lawyers -- to be egregious.

12 That's why I denied the motion to dismiss and that's why I

13 think the plaintiffs have achieved a good settlement for the

14 class. But then on top of that, to have this happen was not

15 was not appropriate.

16 So just know that it was not a small oversight, in my

17 view.

18 MR. USLANER: I understand, Your Honor.

19 THE COURT: Okay. Let's go through a number of

20 things.

21 In general, I think that the -- certainly the monetary

22 terms appear to be appropriate. The opt-out threshold I don't

23 have an objection to, now that I know the specifics.

24 In terms of your notice -- take out Document 135-1.

25 MR. USLANER: Yes , Your Honor.

 7

1 THE COURT: Do you have it?

2 MR. USLANER: Yeah.

3 THE COURT: All right. These are the changes that I

4 want you to make.

5 MR. USLANER: Okay .

6 THE COURT: Paragraph numbered 1 should be bolded.

7 Seven -- are you making a note?

8 MR. USLANER: I'm sorry, Your Honor. Just to be

9 clear, in the --

10 THE COURT: Paragraph 1, page 3.

11 MR . USLANER : I see. Ye s. Should be bolded.

12 THE COURT: Paragraph 7, bolded.

13 MR. USLANER: Bolded. Okay.

14 THE COURT: Paragraph 15 , bolded. Paragraph 18 , the

15 first two sentence s should be bolded.

16 Paragraph 35 --

17 MR. USLANER: Yes, Your Honor.

18 THE COURT: what I want you to do in Paragraph 35,

19 I want 35 bolded , but I wan t it to have so after the first

20 sentence, include "however," and then move the first sentence

21 of 36 there.

22 MR . USLANER: Up into 35?

23 THE COURT: Yes . And then put "see the plan of

24 allocation below." And there in 35, they have basically al l

25 the information they need, which is, one, that you don't -- you
 8

1 can't determine what their actual amount is, but it's

2 $50 million in a settlement, and then they can see the plan o f

3 allocation. Okay? And all of that should be balded.

4 MR. USLANER: Your Honor, I'm sorry to interrupt. So

5 with respect to Paragraph 35, would you like the remainder of

6 36 to be its own separate paragraph?

7 THE COURT: Yes . But not balded.

8 MR . USLANER: I understand.

9 THE COURT: Paragraph 39, the following portions

10 should be balded: "Lead counsel will apply to the Court for an

11 award of attorneys' fees in an amount of 15 percent of the

12 settlement fund."

13 MR. USLANER: Yes, Your Honor .

14 THE COURT: Paragraph 40, about six lines down, where

15 it says "each request for exclusion , " do you see that?

16 MR . USLANER: Yes.

17 THE COURT: Make that its own paragraph. It can still

18 be in paragraph 40, I don't care , but I want those separated .

19 MR. USLANER: Got it . We'll make that a new

20 paragraph. I think that will be cleanest.

21 THE COURT: I just didn't know if it threw off other

22 things. That's the only thing.

23 Paragraph 55, I suspect you are going t o have and you

24 should have a website; right?

25 MR. USLANER: We will. Yes, Your Honor.

 9

1 THE COURT: You need to include in there that if they

2 want to have any of this information, everything is going to be

3 on the website, so they don't have to come to us, which is

4 cumbersome.

5 MR. USLANER: Of course.

6 THE COURT: All they need to do is they can go to the

7 website and find everything that they need.

8 MR. USLANER: We'll make that clear.

9 THE COURT: Paragraph 56, the first sentence should be

10 bolded.

11 All right. With respect to the proposed form of order --

12 MR. USLANER: This is Exhibit 2, Your Honor?

13 THE COURT: 135-1. I want you to include in here a

14 paragraph that says that you are verifying regularly the

15 operation of the website. The reason that I'm saying that

16 and I want you, in fact, to do it

17 MR. USLANER: Of course.

18 THE COURT: -- is because I've had to postpone final

19 approvals because when we -- we had a situation where we went

20 to the website and it wasn't operational.

21 MR. USLANER: That won't happen.

22 THE COURT: Neither the defendants' nor the

23 plaintiffs' attorneys had bothered to check the website . So

24 make sure you have someone going on there once a week or

25 whatever to v erify that it's actually working.

 10

1 MR. USLANER : Absolutely.

2 THE COURT: The order should also be -- should be

3 comprehensive; that is , to the extent that and I believe you

4 do. You reference the stipulation of settlement. It needs to

5 be attached and cross-referenced as attached . I d on't think

6 any class member should have to go through the docket and

7 figure out the various things upon which the order is based.

8 So I'd like you to re -send us a document that has the

9 whole thing attached and that cleans up the notices as I've

10 indicated.

11 MR. USLANER: I'm sorry to interrupt, Your Honor . I

12 believe currently the proposed order contains the vari ous

13 documents referenced, so we will continue that when we submit

14 the revised version.

15 THE COURT: Okay .

16 When do you want to have your hearing ?

17 MR. USLANER: I think we will be prepared, Your Honor,

18 to have the hearing on October 15th. Defense counsel has

19 indicated to us they will be able to get us the transfer record

20 sooner than called f o r .

21 THE COURT: The 15th is not available. I can do it on

22 the 22 nd, though.

23 MR. USLANER: That wi ll be fine by plaintiffs.

24 MR . KEATS: That works for us, Your Honor.

25 THE COURT: The other t hing that I -- the other

 11

1 question that I have for you relates to your to the amount

2 of class participation that you've been able to achieve. It

3 seems to be 20, maybe 25 percent.

4 What is it that you can do to increase participation?

5 MR. USLANER: A couple points, Your Honor , and I think

6 it's important to advise the Court of this .

7 When it says 20 percent, that's 20 percent of people who

8 received the notice. That doesn't reflect 20 percent of

9 shares, damage shares.

10 Typically in securities actions, the amount of damage --

11 the beneficiaries of damage shares is in the neighborhood of 70

12 to upwards in terms of percentage.

13 THE COURT: Okay.

14 MR. USLANER: That said, I do believe that effective

15 notice through the means that we're proposing and actively

16 monitoring the website will ensure as high participation as

17 possible.

18 THE COURT: So with respect to Exhibit 4 and the

19 your success in reaching the class, what percentage would you

20 say those -- each of those cases has?

21 MR. USLANER: So with respect to the number of damaged

22 shares, my understanding, Your Honor, is that these are all in

23 the neighborhood of 70 percent of damaged shares submitted as

24 claims, but, you know, the number of claim forms that were

25 submitted were less than that. And that's partially a

 12

1 consequence of the fact that just because notice goes to

2 someone doesn't necessarily mean that they have a claim.

3 THE COURT: One of the things that I require and that

4 we are requiring now in this district are kind of -- post

5 audits

6 MR. USLANER: Absolutely.

7 THE COURT: So to speak. So we want this information

8 that you've provided on the front end and kind of a report for

9 closure on the back end. I think it's important even if I have

10 to move the date to get it on the calendar. And you should

11 then include, I would say to your benefit, another line , given

12 that it is a securities action, that indicates how many of the

13 damage shares you've been able to reach , because that's our --

14 that's our concern.

15 One of the reasons that we've changed our rules here in

16 the Northern District is we want to increase transparency,

17 which is why I was taken aback on that supplemental agreement;

18 and, two, we want to increase participation by class members .

19 So we want to make sure that people are focused on that topic ,

20 and we want to hold them accountable, which is why we ask for

21 the audit on the back end.

22 If you are reaching north of 70 percent in terms of damage

23 shares, that is a positive thing that you should identify .

24 MR. USLANER: I would agree with Your Honor.

25 And, Your Honor, we share the Court's desire for both a

 13

1 transparent process and to ensure that class members submit

2 claims. And we do apologize for not making it clear that we

3 engaged in a supplemental agreement, albeit standard in these

4 cases. We should have been clearer in the papers.

5 THE COURT: I will let my colleagues know.

6 MR. USLANER: Thank you, Your Honor.

7 THE COURT: So when can I anticipate everything being

8 wrapped up so that we have a final audit? And we'll inc l ude

9 that in the order as well.

10 MR. USLANER: Your Honor, my suggestion would be that

11 the distribution motion -- that the time for that be set seven

12 months after final approval. I know that in Your Honor's other

13 securities cases, sometimes that has been nine months, but I

14 suggest that we -- I think that we can get the distribution

15 done within seven months.

16 THE COURT: All right . Well, let's just -- if we have

17 to move it, we'll move it. For now we'll say May 26, 2020.

18 Okay?

19 Let's see. I'll just check my notes, see if I had

20 anything else.

21 Anything else you want to say for purposes of the record?

22 Mr. Uslaner?

23 MR. USLANER: No, Your Honor.

24 THE COURT: Okay . Mr. Keats?

25 MR. KEATS: No , Your Honor . Thank you.

 14

1 THE COURT: The 10,000 for the named plaintiff ,

2 that -- I'm assuming that comes out -- the way I read it, comes

3 out of litigation expenses?

4 MR. USLANER: Correct, Your Honor. That's included in

5 the 950,000, which is an estimate, and I frankly think by the

6 time we get to the fihal approval, it will be less than that.

7 THE COURT: Okay. Well, I'll be able to turn this

8 around pretty quickly once you get it back to me.

9 So when do you think you can have it back?

10 MR. USLANER: I think with these changes, we can make

11 them tomorrow, and I think we can get you the proposed revised

12 order tomorrow, if that works for Your Honor.

13 THE COURT: Okay. So just send it to our proposed

14 order box, and then we'll get it posted.

15 MR. USLANER: Thank you, Your Honor.

16 THE COURT: All right. Thank you, gentlemen.

17 MR. KEATS: Thank you, Your Honor.

18 (Proceedings adjourned at 2:23 p . m. )

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 1

3 CERTIFICATE OF REPORTER

4 I certify that the foregoing is a correct transcript

5 from the record of proceedings in the above-entitled matter.

7 DATE: Friday , December 13, 2019

10 Pamela Batala Hebel, CSR No. 3593, RMR, FCRR

U.S. Court Reporter
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EXHIBIT I
 1
FILE· D
San Francisco County S .
upenor Court

2
NOV ta 2019
3 BYC~~~
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA

8
COUNTY OF SAN FRANCISCO
9 DEPARTMENT304 .

10
JACOB RIMLER, GIOVANNI JONES, DORA Case No. CGC-18-567868
11 LEE, KELLYN TIMMERMAN, and JOSHUA
ALBERT, on behalf of themselves and others
similarly situated and in their capacities as Private
12 ORDER RE MOTION FOR PRELIMINARY
Attorney General Representatives,
APPROVAL OF CLASS SETTLEMENT
13 Plaintiff,
v.
14
POSTMATES, INC.

15 Defendant.

16 Plaintiffs' motion·for preliminary approval of class settlement was scheduled for hearing on

November 22, 2019 at 10:00 a.m. in Department 304. Prior to the hearing the Court issued a tentative
17
· ruling. Plaintiffs and defendant submitted on the tentative. Therefore, the Court continues the hearing to
18 January 31, 2020 at 1:30 p.m. and directs Plaintiffs to address the following in supplemental briefing to be

19 filed not later than January 15, 2020. Plaintiffs are directed to cross reference this order in their

supplemental filings to the Court.

20

21
- 1-

22 Rim/er v. Postmates, Inc., CGC-18-567868 Order re Motion for Preliminary Approval

 I. Class Certification for Settlement Purposes
1
Plaintiffs must provide their own declarations setting forth the basic material facts about their
2
employment to demonstrate their adequacy to represent a settlement class. Their declarations should also
3
set forth whether they have worked in each of the municipalities that impose civil penalties that are being

4 released, and if not, why it is proper to release class members' local-_ordinance claims that they do not
themselves possess. Plaintiffs should also disclose whether they received consideration of any kind,
5
directly or indirectly, for the release of their individual claims because that bears on their adequacy.
6
II. Reasonableness of the Settlement Consideration
7
A. Maximum Value of the Claims

8 In their valuation of the case, Plaintiffs have declined to advise the Court as to the maximum value

9 of all the class claims and PAGA claims or the bases for their valuation. Plaintiffs must do so. In
addition, due to the explicit release of additional claims in the Settlement Agreement not pleaded in the
10
First Amended Complaint or Proposed Second Amended Complaint, the Court believes Plaintiffs must
11 provide a full valuation of all released claims and provide the Court with an explanation of how they

12 calculated the value of these claims. If Plaintiffs do not believe that the valuation should extend to all
released claims, Plaintiffs must provide argument supported by citation to legal authority in support of
13
their position. All information should be set forth in a declaration except for the legal arguments, if any,
14 as to the valuation of all released claims.

15 B. The Settlement Discount

Plaintiffs have set forth several reasons to discount the settlement. However, the Court cannot
16
evaluate the reasonableness of the discount without knowing what the discount is, a value that in turn
17
depends on the maximum value of the claims. Plaintiffs' counsel's reliance on a settlement discount
18 provided in a previous class settlement her firm negotiated with Postmates, i.e., Singer v. Postmates, Inc.
(N.D. Cal. Sept. 1, 2017) 2017 WL 4842334, to guide her analysis here is not adequate. This federal
19
case was settled prior to the California Supreme Court decision in Dynamex that adopted the less
20
stringent ABC test, and the passage of Assembly Bill 5 (A.B. 5). Second, while a substantial discount for
21
-2 -

22 Rimler v. Postmates, Inc., CGC-18-567868 Order re Motion for Preliminary Approval

 1 PAGA penalties may be reasonable, counsel failed to provide any factual or legal basis to justify the near

100% discount. None of the cases Plaintiffs cited justify the 0.09% allocation.
2

In a supplemental filing, Plaintiffs must: (1) Justify the 0.09% allocation; (2) Discuss the
3
maximum civil penalty that could be imposed if Plaintiffs were to succeed on their PAGA claims; and (3)
4
Provide an evaluation of the factors the Court would be called on to consider in determining the ultimate

5 civil penalty amount.

C. Investigation and Discovery

6
Plaintiffs' counsel must disclose, in a declaration, the "substantial data" that was received in
7
advance of mediation and the discovery that was obtained in the Albert case before the case was stayed.
8 Generalized statements will be deemed insufficient.

9 D. Dispute Resolution Fund

10 Plaintiffs' counsel must justify the $250,000 set aside from the class and explain how

compensating for payments mistakenly excluded from the class should not be covered as part of the
11
$450,000 set aside for claims administration.
12
· ill. Notice
13 A. LWDA

14 Counsel must attest to compliance with Cal. Lab. Code § 2699(1)(2).

B. Process
15
The notice process as outlined in the present motion is very confusing and raises concerns about
16
the adequacy of the notice to the class. The questions and concerns about the notice process are
17 summarized in the following informal list.

18 • Why are the parties relying on e-mail notice and then mailed notice? Were alternatives such as notice

19 via the Postmates App considered? If so, why were they rejected? If not, why not?

• Exclusion/Objection deadline: This is defined as '60 days after the Mailed Notice Date.' (Proposed
20
Settlement Agreement, ,r 2.12.) It is unclear what the Mailed Notice Date purports to be. Compare ,i,i
21
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22 Rim/er v. Postmates, Inc., CGC-18-567868 Order re Motion for Preliminary Approval

 1 3 .1 and 6.2. Second, it's unclear if 'initial distribution' means distribution via electronic mail or

postal mail. To the extent the parties are referring to electronic mail, there is no extension for those
2
individuals to whom notice is accomplished via postal mail. Are the parties agreeable to expanding
3
the 'Mailed Notice Date' to include initial distribution when postal mail is utilized? If the parties are

4 opposed to extending the 60-day deadline, the settlement should contain clear terms requiring prompt

mailing of Notices by the Settlement Administrator if an email returns undeliverable. (See Id. at 1
5
6.5.)
6
• Non-wages and Form 1099: What is the justification to exclude all payments under the settlement

7 from the IRS reporting requirements? (See Id at 14.2.) A declaration from a tax expert will suffice

to provide the response on this issue.

8
• Opt outs: First, what interest do Plaintiffs have for preventing counsel to opt out on behalf of their
9
clients, either individually or on behalf of a group? What is the justification for preventing counsel

10 from even helping submit an opt out? Second, explain the email procedures for opting out? (See Id.

at 1 7.1.) For example, do class members have to download a form, complete it, print it, sign it, and
11
attach it to an email? Or may a class member simply opt out in the body of an email? To the extent
12
class members may submit claim forms through an online portal why are the procedures requesting

13 exclusion different? Third, the Court should ultimately decide whether a contested opt out is valid.

(Id. at 17.5.)
14
• Objections: First, to the extent the Settlement Agreement requires objectors to file objections with the
15
Court, this requirement should be excluded. (Id. at 118.1, 8.2, 8.4.) Second, no separate 'Notice' of

16 an intent to appear at the final approval hearing, of any kind, should be required. (See Id. at 18.4.)

Third, a legal basis for each objection should not be required. (Id. at 18.3.) Fourth, to the extent the
17
settlement doesn't provide an email procedure / online submission portal for Objections, the parties
18
should explain why. Fifth, what interest do Plaintiffs have for preventing counsel to object on behalf

19 of their clients, either individually or on behalf of a group? What is the justification for preventing

counsel from even helping submit an objection? (See Id. at 118.3, 8.5.) Sixth, explain the purpose
20
and the effect of18.7: "It shall be Settlement Class Counsel' s sole responsibility to respond" to any
21
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22 Rim/er v. Postmates, Inc., CGC-18-567868 Order re Motion for Preliminary Approval

 l objections made with respect to Counsel's award and Plaintiffs' service awards. Seventh, it's not

clear what "supporting papers" are contemplated in ,r 8.2.

2
• Exclusion of an Individual: What is a 'reasonable amount of time' in which an individual must notify
3
the Settlement Administrator that they have been excluded from the class list? (See Id. ,r 6.11.) How

4 does an individual notify the Settlement Administrator? What is the timeframe for them to submit a

Claim Form, an Objection, or an Opt out? Is the 60-day deadline tolled for these individuals? If there
5
is no further money left in the Dispute Resolution Fund after they have submitted a Claim Form will
6
that individual be able to opt out of the settlement?

7 • Claim Form: First, the deadline to submit the Claim Form - 'the Bar date'- is not defined in the

Settlement Agreement. (See Id. at ,r 5.3.) Second, the settlement provides that claim forms are
8
submitted through an online portal or by mail. The Notice provides a third option-by email. Was
9
this third option intended?

10 • Reminders: The Settlement Agreement calls for 'reminders' to be sent to Class Members following

the initial Notice. (Id. at ,r 6.7.) Who will receive these reminders? How will reminders be sent, via
11
email or postal mail? When will the two reminders be sent? What information will the reminders
12
contain?

13 • Settlement Share Disputes: The Settlement Agreement provides that the Notice will inform Class

Members of their right to dispute the information upon which their share of the Settlement will be
14
calculated. (Id. at ,r,r 6.3, 6.4.) However, there is no further information explaining the process by
15
which Class Members are required to dispute, e.g., through the claim form or by letter; by electronic

16 mail or postal mail; and what documentation is required and/or acceptable.

17 C. Substance

18 The questions and concerns about the notice substance are summarized in the following informal

list.
19
• Have the parties confirmed that English language notice is appropriate for Postmates's workforce-
20
i.e., is English language proficiency required for the job?
21
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22 Rim/er v. Postmates, Inc., CGC-18-567868 Order re Motion for Preliminary Approval
 1 • The summary paragraph should provide an estimated total of the $11,500,000 which will be available
for distribution to the class after.attorneys' fees and other costs (which appears to be approximately
2
$6,890,000 based on the present tenns of the settlement).
3
• Page 1-2: There should be a more thorough summary of the recipients options -(1) Participating in

4 the settlement by either (a) Submitting a claim, (b) Doing nothing, in which case they will receive no
payment and release claims they may have against Postmates, (c) Objecting to the settlement, (d)
5
Disputing the information provided as a basis for calculating their claim amount; or (2) Electing not to
6
participate in the settlement by opting out. The summary should succinctly set forth the options and

7 reference the specific sections in the notice where more infonnation is provided with respect to each

option.
8
• Page 2. § 2: This section should disclose and briefly discuss the federal actions of Lee and Albert.
9
• Page 3. third paragraph: The references to approval of the class representatives and class counsel

10 should include the word "preliminarily."

• Page 3, § III: The Notice should disclose that the settlement amount includes a Dispute Resolution
11
Fund of $250,000. The Notice should state that the Administration Costs are capped at $450,000, as
12
set forth in the Settlement Agreement, not "estimated" at $450,000.

13 • Page 4. § III: The Notice should explain what 'demonstrate in writing an interest in initiating an
arbitration demand against Postmates prior to October 17, 2019' means. (See first paragraph, line 4.)
14
The fifth, sixth, and seventh paragraphs discussing the rights and options of class members is
15
confusing. A reader could reasonably come away with the impression that only individuals who

16 submit a claim form, to the exclusion of individuals who object, are participating in the settlement
such that they will receive a payment if the settlement is approved. The Notice should be.clear that
17
both submitting a claim fonn and objecting are options that constitute participation in the settlement,
18
such that a payment will be received if the settlement is approved.
19 • Page 4-6. § IV: The Notice should state the effect of the release, and who it impacts, in plain and
concise language. For example: "If the Court grants final approval of the Settlement, the Court will
20
enter judgment, the Settlement will bind all Class Members who have not opted out, and the judgment
21
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22 Rim/er v. Postma/es, Inc., CGC-18-567868 Order re Motion for Preliminary Approval

 1 will bar all Class Members from bringing any claims released in the Settlement. The release is

described below." This section also should clearly disclose the following: (1) that only by submitting
2
a claim form, is the Class Member consenting to join as a party plaintiff to the FLSA claims and
3
releasing those claims; and (2) that even by excluding yourself from the settlement class members still

4 release the PAGA claims. The second paragraph on page 6 is confusing because it appears that by

~doing nothing' or not timely excluding yourself from the settlement, a person releases their FLSA
5
claims. Also, the third and fourth paragraphs cover distinctly different information. The fourth
6
paragraph should not start with "This means that . . ."

7 • Page 6, § V : The Notice discloses the formula used to calculate a class member's settlement share.

However, it does not disclose each class members' estimated Delivery Miles or estimated value of
8
each mile used to compute the settlement share. This makes it practically impossible for a class
9
member to dispute those figures or make a reasonable estimate of their payment. The following

10 information should be clearly disclosed in each individual notice: (1) The estimated net settlement

amount for distribution to class members; (2) The fact that employer-side payroll taxes will be
11
deducted from the settlement amount; (3) Any factors that may impact the estimate for the net
12
settlement amount (i.e., claims submitted, opt outs, reduced fee or incentive awards, successful

13 disputes, exclusions of class members, etc.); and (4) The data used to calculate that specific class

member's share of the net settlement amount, i.e., the estimated Delivery miles for that class member
14
and estimated recovery per mile, which the class member may contest, including whether he or she is
15
expected to have their points doubled.

16 • Page 7, § VI: This section should disclose the procedure and the means by which to notify the

Settlement Administrator of any change of address and how to request a replacement check if lost or
17
misplaced. This section should explain the procedure to dispute the estimated Delivery Miles and
18
what documentation is required and/or acceptable. Lastly, the last paragraph, line 3, states that

19 "payments will be mailed within a "couple months." The Settlement Agreement and the preceding

section state that payment will be distributed approximately 30 days after the settlement becomes
20
final. (Page 6, § V; see Proposed Settlement Agreement 1,r 5.1, 5.6.)
21
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22 Rim/er v. Postmates, Inc., CGC-18-567868 Order re Motion for Preliminary Approval

 1 • Page 7. § VII: The Notice does not provide the procedure to email an opt out. (See Proposed

Settlement Agreement 1 7 .1.) This section should disclose that opting out of the settlement will still
2
release the PAGA claims but that those who want to opt out may still object to the PAGA component
3
of the settlement.

4 • Page 8, §VIII: The first sentence of the first and third paragraphs is confusing because a class

member may opt out and still object to the PAGA portion of the settlement. Paragraph 8·.3 of the
5
Settlement Agreement and the Notice are inconsistent. The Notice contains an additional requirement
6
whereby objecting Class Members must include their dates of service with Postmates. (See first

7 paragraph, line 6.) All reference to the Court should be excluded. The Notice should be clear that

objections are submitted by mail to the Settlement Administrator. This section should also disclose
8
that Class Members may submit an objection, including to the settlement itself, the request for
9
attorney's fees, or Plaintiffs' awards, and also submit a claim form for payment. "In the manner

10 provided" in the last sentence of the third paragraph is vague.

• Page 8, § IX: The third sentence in lines 7-8 is vague: "The court will listen to people who have made
11
a timely written request to speak at the hearing." It is not clear what website line IO is referring to.
12
This section should disclose that at the final approval hearing the Court will consider Class Counsel's

13 application for attorney's fees and Plaintiffs' service awards, in addition to whether the settlement is

fair, reasonable, and adequate.

14
• · Page 8-9. § X : This section should also direct the reader to the website. The URL should be
15
displayed prominently at the end of the notice and the documents contained on the settlement website

16 should be listed, i.e., the operative complaint, the Lee complaint, Albert complaint and any other

complaint upon which a release of claims may be based, notice~ settlement agreement, preliminary
17
approval order, all papers filed in connection with preliminary approval motions (including all orders
18
and tentative rulings) to the class. In addition, the Notice should direct the reader to the Court's

19 website (https://www.sfsuperiorcourt.org/online-services), which provides access to the full docket in

this case free of charge. The Notice should contain instructions on how to use the website.
20
• Any and all revisions to settlement terms should be reflected in the notice.
21
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22 Rim/er v. Postmates, Inc., CGC- l 8-567868 Order re Motion for Preliminary Approval
 1
IV. Allocation and Distribution of Funds
2 The questions and concerns about the allocation and distribution of funds are summarized in the

3 following informal list.

4 • The Individual Settlement Amounts will be apportioned based on the estimated number of miles

driven while using the Postmates application as a courier. This approach may be justified on the basis
5
that computing specific damages for each Class Participant is impossible or infeasible. However, it is
6
not clear whether impossibility of infeasibility exists here for three reasons: First, Plaintiffs should be

7 in possession of records that elucidate variations in the (i) meal and rest break, (ii) overtime, (iii) and

sick pay violation rates experienced by putative class members. Second, waiting time penalties, in
8
particular, would only be available to individuals who no longer work for Defendant. Third, arguably
9
class members who worked for Postmates after Dynamex presumably have stronger claims than those

class members whose reimbursement claims may not be retroactive. Please explain the justification

for computing the Individual Settlement Amounts in the chosen manner.

11
• The settlement's proposal to double the points of class members ' who opt out of arbitration, initiate
12
arbitration, or demonstrate in writing an interest in initiating an arbitration demand against Postmates'

13 is vague. Additionally, the reasons for such an allocation should be set forth in more detail.

• To the extent that no class member·is capable of receiving a $100 settlement check the reminder
14
provision is futile. To the extent that no class member is capable of receiving a $50 settlement check,.
15
the redistribution process is similarly futile. Please provide, assuming a 100% claim rate, the number

16 of class members expected to receive an individual payment of at least $50 and the number expected

to receive at least $100.

17
V; Release of Claims
18
The questions and concerns regarding the Release are summarized in the following informal list.

19
• Please explain the justific_ation for the broad release of claims and the justification for Plaintiffs'

20 additional release of claims without proper ?ompensation. To the extent Plaintiffs claim the service

awards may be used as consideration for Plaintiffs' release of additional claims, Plaintiffs must
21
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22 Rim/er v. Postmates, Inc., CGC-18-567868 Order re Motion for Preliminary Approval

 1 provide argument supported by citation to legal authority in support of their position. All information

should be set forth in a declaration.

2
• Plaintiffs must reconcile ,r 2.29 which purports to limit the FLSA release to those who submit valid
3
claims, with ,r 9.2 and ,r 2.41 that effectuates a release unless a class member opts out.

4 • The Release encompasses "all claims that are based on [sic] reasonably related to the claims alleged

in or that could have been alleged in the Rimler SAC, including any allegations in Lee, Albert, and/or
5
Rim/er preceding said amended complaint, and all misclassification claims." (Id. at ,r 2.41.) flaintiffs
6
must explain the justification for including a release of claims encompassed in three additional

7 complaints, two of which are in a different jurisdiction.

8
VI. Miscellaneous Issues

9 • Class Definition ,r,r 2.36, 2.7: Why does the Class definition include couriers who have only been

'approved to use the Postmates platform' as opposed to those who have actually used the platform and
10
completed at least one delivery?
11
• Proposed Settlement ,r 2.31 : Plaintiffs seek to file a second amended complaint, but Plaintiffs have

12 not filed a motion or a stip/order to do so. A settlement based on the proposed Second Amended

Complaint will not be approved until it is the operative complaint. The parties must comply with Cal.
13
· Rules of Court, rule 3.1324 in filing any such amendment.
14
• Proposed Settlement ,r,r 3.6.3, 3 .8. 11, ,r9 .3: The Court will not order Settlement Class Members

15 preliminarily and permanently enjoined from initiating litigation against Postmates.

• Proposed Settlement ,r 3.8.15: This section purports to allow amendments, modifications, and
16
expansions of the agreement without further approval from the Court after final approval. The Court
17 should not be omitted from this process.

18 • Proposed Settlement ,r 4.5: Explain the parties' "6-rnonth grace period to come to an agreement

regarding terms applicable in the event any appeal of the settlement is file."
19
• Proposed Settlement ,r 6.10: The Settlement Administrator will have to provide receipt of valid Claim
20
Forms and Objections to the Court.

21
- 10 -

22 Rim/er v. Postma/es, Inc., CGC-18-567868 Order re Motion for Preliminary Approval

 1 • Proposed Settlement ,r 10.6: This seems to be a release concerning the administration of the

settlement. ,r 10.6 bars any action against Plaintiffs, Class Counsel, Settlement Administrator, or
2
Postmates based on distributions made under the agreement. Why is this proper?
3
• Plaintiffs must select a Settlement Administrator. The proposed administrator must submit a

4 declaration confirming how it will protect sensitive personal information and its ability to administer

the settlement.
5
• When will the website be accessible to Class Members? What does content-neutral mean? (Id. at ,r
6
6.9.)

7 • Explain whether an objection is valid and/or waives any rights if the objector does not include a

statement of whether they intend to appear at the final approval hearing, either individually or through
8
counsel? If so, what is the justification?
9

10
IT IS SO ORDERED.
11

Dated: November 25, 2019

12
Anne-Christine Massullo
13
Judge of the Superior Court

14

15

16

17

18

19

20

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22 Rim/er v. Postmates, Inc., CGC-18-567868 Order re Motion for Preliminary Approval

 CERTIFICATE OF ELECTRONIC SERVICE
(CCP 1010.6(6) & CRC 2.251)

I, Ericka Larnauti, a Deputy Clerk of the Superior Court of the County of San Francisco,
certify that I am not a party to the within action.
On November 26, 2019, I electronically served the attached document via File &
ServeXpress on the recipients designated on the Transaction Receipt located on the File &
ServeXpress website.

Dated: November 26, 2019

T. Michael Yuen, Clerk

By:
Ericka Larnauti, Deputy Clerk
EXHIBIT J /
 Case 2:13-cv-01282-KJM-AC Document 305 Filed 08/23/19 Page 1 of 9

7 UNITED STATES DISTRICT COURT

8 FOR THE EASTERN DISTRICT OF CALIFORNIA

10 MARIA DEL CARMEN PENA, et al., Case No. 2:l 3-cv-01282-KJM-AC

11 Plaintiffs,

12 V. ORDER
13 TAYLOR FARMS PACIFIC, INC., et al.,

14 Defendants.

15

16 Plaintiffs move for preliminary approval of a settlement reached with defendants in

17 this long-pending class action. Mot., ECF No. 287. The motion is unopposed. With leave from

18 the comt, plaintiffs filed a supplemental brief and declaration to address several issues the comt

19 raised at hearing on the motion. Supp. Br., ECF No. 301 ; Supp. Deel. , ECF No. 302; ECF Nos.

20 303, 304 (statements of non-opposition to supplemental filings). After reviewing plaintiffs '

21 supplemental brief in the context of the entire record on the pending motion, and as explained

22 below, the court DENIES the motion without prejudice to renewal.

23 I. BACKGROUND

24 Defendant Taylor Farms Pacific, Inc. operates two food production and processing

25 plants in Tracy, California. Mot. at 8. 1 Defendants Abel Mendoza, Inc., Manpower, Inc. and

26 Quality Farm Labor, Inc. provide agricultural or manufacturing workers to third parties and, as

27

28 1
The court cites to ECF page numbers, not the briefs' internal pagination.
1
 Case 2:13-cv-01282-KJM-AC Document 305 Filed 08/23/19 Page 2 of 9

1 relevant here, paid and acted as a joint or dual employer for employees who worked under Taylor' s

2 control. Seventh Am. Comp I., ECF No. 101 ~~ 9-11. Defendant Slingshot Connections LLC

3 recruits, interviews and hires persons to work at Taylor' s Tracy facilities on behalf of Quality Farm

4 Labor, Inc., and also acts as a joint or dual employer for those employees. Id. ~ 12.2

5 Plaintiffs Maria del Carmen Pena, Consuelo Hernandez, Leticia Suarez, Rosemary

6 Dail and Wendell T. Morris were hourly employees at the Tracey plants. Plaintiffs filed this action

7 seeking to represent a class of defendants' current and former employees arising from the following

8 core allegations: (1) defendants did not properly compensate plaintiffs for time spent "donning and

9 doffing" equipment; (2) defendants did not provide plaintiffs with rest breaks and meal breaks

10 required under California labor law; and (3) defendants did provide plaintiffs with paychecks in the

11 form and timely manner required under California labor law. See Certification Order, ECF No.

12 200, at 2- 3 (summarizing plaintiffs ' class claims).

13 On February 10, 2015, the cou11 granted in part and denied in part plaintiffs' motion

14 for class certification. Specifically, the court: (1) denied certification of all classes and subclasses

15 as to defendant SlingShot Connections, LLC; (2) denied certification of the donning and doffing

16 subclass; (3) granted certification of two meal break subclasses and approved Pena, Hernandez and

17 Morris as representatives of those subclasses, but denied certification of the rest break subclass;

18 (4) granted certification of the waiting time subclass, insofar as that subclass is entirely derivative

19 of the mixed hourly workers subclass, and appointed Pena and Hernandez as representatives of that

20 subclass; (5) denied certification of the wage statement subclass; and (6) appointed plaintiffs'

21 counsel as class counsel. Certification Order at 42-43. The court later clarified that its order on

22 class ce11ification did not certify any class as to defendant Manpower, but noted the court wou ld

23 entertain a renewed motion as to Manpower. ECF No. 210. No such motion was filed. Tyson and

24 Abel Mendoza, Inc. appealed the court's certification order, unsuccessfully. See ECF Nos. 217,

25 228 (notices of appeal), 243, 244 (memorandum disposition affirming order and mandate). The

26 coutt stayed the matter pending defendants' filing a petition for writ of certiorari, and then 1ifted

27
2
Because plaintiffs' motion did not address the non-Taylor defendants' roles in the suit or
28 settlement, the court draws on allegations in plaintiffs' operative complaint.
2
 Case 2:13-cv-01282-KJM -AC Document 305 Filed 08/23/19 Page 3 of 9

the stay when the petition was denied. ECF Nos. 254, 262. The parties then entered into settlement

2 negotiations. See 273, 277, 280 (minute orders resetting status conference pending parties'

3 settlement discussions).

4 The parties attended two separate full-day mediation sessions, months apart, w ith "a

5 highly experienced and respected class action mediator." Mot. at 7, 13. Following the parties'

6 "arm' s-length bargaining," the mediator "recommended the settlement amount as fair and

7 reasonable." Id. at 9, 13. The parties propose a $5,300,000 gross settlement amount. Mot. at 9.

8 From the gross settlement, plaintiffs seek: ( 1) attorneys' fees not to exceed 35 percent of the gross

9 settlement ($1 ,855,000), (2) costs not to exceed $250,000, (3) service awards of $7,500 for each

IO named plaintiff, including plaintiffs not certified as class representatives, not to exceed a total of

11 $37,500, and (4) settlement administrative costs not to exceed $23,000. Mot. at 9-10. Defendants

12 Quality Farm Labor, Inc. and Abel Mendoza, Inc. filed notices of non-opposition, requesting the

13 court grant the motion in its entirety. ECF No. 289 (Quality Farm Labor, Inc. statement of non-

I4 opposition); ECF No. 291 (Abel Mendoza, Inc. statement of non-opposition). While Taylor is the

15 only defendant that signed the settlement agreement, that agreement wou ld release all defendants

16 and plaintiffs represent that "if the settlement is finally approved it will result in this litigation being

17 dismissed in its entirety," presumably with all defendants' approval. Suppl. Br. at 2; see Fed. R.

18 Civ. P. 41 (a)(l)(A)(ii) (requiring, for plaintiffs dismissal without cou11 order, stipulation of

19 dismissal signed by all parties who have appeared).

20 II. LEGAL STANDARD

21 There is a "strong judicial policy" favoring settlement of class actions. Class

22 Plaintiffs v. City of Seattle, 955 F .2d 1268, 1276 (9th Cir. 1992). Nonetheless, to protect absent

23 class members' due process rights, Rule 23(e) of the Federal Rules of Civil Procedure permits the

24 claims of a ce11ified class to be "settled ... only with the cou1i's approval" and " only after a hearing

25 and only on a finding [that the agreement is] fair, reasonable, and adequate ...." Fed. R. Civ. P.

26 //Ill

27 //Ill

28 /////
3
 Case 2:13-cv-01282-KJM-AC Document 305 Filed 08/23/19 Page 4 of 9

23(e). To determine whether a proposed class action settlement is fair, reasonable and adequate,

2 courts consider several factors, as relevant, including:

3 (1) [T]he strength of the plaintiffs case; (2) the risk, expense,
complexity, and likely duration of further litigation; (3) the risk of
4 maintaining class action status throughout the trial; (4) the amount
offered in settlement; (5) the extent of discovery completed and the
5 stage of the proceed ings; (6) the experience and view of counsel ; (7)
the presence of a governmental pai1icipant; and (8) the reaction of
6 the class members of the proposed settlement.

7 In re Online DVD-Rental Antitrust Litig., 779 F .3d 934, 944 (9th Cir. 2015) (quoting Churchill

8 Vil/., LLC v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004)); In re Tableware Antitrust Litig., 484

9 F. Supp. 2d I 078, l 080 (N.D. Cal. 2007) (noting, at preliminary approval stage, courts consider

10 whether " the proposed settlement appears to be the product of serious, informed, non-collusive

11 negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class

12 representatives or segments of the class, and falls within the range of poss ible approval . ...").

13 These factors s ubstantive ly track those provided in 2018 amendments to Rule

14 23(e)(2), under which the com1 may approve a settlement only after considering whether:

15 (A) the class representatives and class counsel have adequately

represented the class;
16
(B) the proposal was negotiated at arm's length;
17
(C) the relief provided for the class is adequate, taking into account:
18
(i) the costs, risks, and delay of trial and appeal ;
19
(ii) the effectiveness of any proposed method of distributing
20 relief to the class, including the method of processing class-
member claims;
21
(iii) the terms of any proposed award of attorney' s fees,
22 including timing of payment; and
23 (iv) any agreement required to be identified under Rule
23(e)(3); and
24
(D) the proposal treats class members equitably re lative to each
25 other.

26 Fed. R. Civ. P. 23(e)(2)(A)-(D).3 The Rule 23(e)(2) factors took effect on December 1, 2018 and,

27
3
Plaintiffs did not acknowledge the Rule 23(e)(2) factors in their motion but c ited them in their
28 s upplemental brief. See Mot. at 10-11 ; Supp l. Br. at 5.
4
 Case 2:13-cv-01 282-KJM-AC Document 305 Filed 08/23/19 Page 5 of 9

as an advisory note to the Rule 23(e) amendment recogn izes, "each circuit has developed its own

2 vocabulary for expressing [] concerns" regarding whether a proposed settlement is fa ir, reasonable

3 and adequate. Fed. R. Civ. P. 23(e)(2) advisory committee's note to 2018 amendment.

4 Accord ingly, the newly codified factors are not intended "to displace any factor, but rather to focus

5 the court and the lawyers on the core concerns of procedure and substance that should guide the

6 decision whether to approve the proposal." Id.; see also 4 Newberg on Class Actions § 13: 14 (5th

7 ed.) (noting Rule 23(e) "essentially codified [federal courts' ] prior practice"). Moreover, the

8 Advisory Committee warned against allowing "[t]he sheer number of factors [to] distract both the

9 court and the parties from the central concerns that bear on review under Rule 23(e)(2)." Fed. R.

10 Civ. P. 23(e)(2) advisory committee's note to 2018 amendment. The court thus draws on

11 longstanding precedent in applying these newly amended rules.

12 As a functi onal matter, a " [r]eview of a proposed class action settlement generally

13 involves two hearings." Ann. Manual Complex Lit. ("MCL") § 21.632 (4th ed. 2004). First, the

14 cowt conducts a preliminary fairness analysis and, if necessary, a preliminary class certification

15 analys is. Id. Second, after all absent class members are notified of the certification and proposed

16 settlement, the cowt holds a final fairness hearing where it rev isits class ce1tification and

17 determines whether to approve the settlement. Id.§§ 2 1.632- 21.635. Here, the court undertakes

18 the first, preliminary step only.

19 Ill. DISCUSSION

20 Upon review of the plaintiffs' filing, the court concludes that although plaintiffs

21 have adequately addressed most outstanding issues the court identified at hearing, they sti ll have

22 not sufficiently exp lained the proposed c lass on whose beha lf they wish to settle or the terms of

23 their settlement, which precludes the court's ability to exercise its proper role here. Accordingly,

24 and as explained further below, the court is unable to grant the motion on the present record.

25 A. Plaintiffs Have Not Shown the Settlement Class Satisfies Ru le 23

26 "Even if the parties have agreed to settle a case on a class-wide basis, the court must

27 determine whether the proposed class satisfies all the requ irements of Rule 23(a) (numerosity,

28 typicality, commonality, and adequacy of representation) and either Rule 23(b)(1), (2), or (3)."
5
 Case 2:13-cv-01282-KJM-AC Document 305 Filed 08/23/19 Page 6 of 9

1 MCL § 22.921; see Fed. R. Civ. P. 23(e)(l)(B)(ii) (requiring court to direct notice of settlement " if

2 giving notice is justified by the parties' showing that the cowt wi ll likely be able to .. . certify the

3 class for purposes of judgment on the propos[ed] [settlement]"). "Settlement is relevant to a class

4 certification" and, thus, conducting a class ce1tification analysis in the settlement context, " a district

5 court need not inquire whether the case, if tried, would present intractable management problems,

6 ... for the proposal is that there be no trial." Amchem Products, Inc. v. Windsor, 521 U.S. 591 ,

7 619-20 (1997) (citing Fed. Ru le Civ. Proc. 23(b)(3)(D)). Even so, "other spec ifications of[] Rule

8 [23]-those designed to protect absentees by blocking unwarranted or overbroad class

9 definitions-demand undiluted, even heightened, attention in the settlement context." Id.; In re

10 Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539, 556- 57 (9th Cir. 2019) (noting "manageability is

11 not a concern in ce1tifying a settlement class where, by definition, there wil l be no trial. On the

12 other hand, in deciding whether to certify a settlement class, a district cou1t must give heightened

13 attention to the definition of the class or subclasses.").

14 While a previously certified class may be expanded for settlement purposes, the

15 expansion must comport w ith Rule 23 ' s requirements. See, e.g., In re Charles Schwab Corp. Sec.

16 Litig., No. C 08-01510 WHA, 2010 WL 4055594, at *2 (N.D. Cal. Oct. 14, 2010) ("[A] settlement

17 class can end more claims than were certified for litigation so long as a ll the Rule 23 requirements

18 are re-done . . . . "); Burnham v. Ruan Transportation, No. SACVl 20688AGANX, 20 15 WL

19 12646485, at *3 (C.D . Cal. Feb. 6, 2015) (denying preliminary approval motion where "the

20 settlement class exceeds the scope of the cettified class" but motion for preliminary approval "fai ls

21 to apply the Rule 23 factors to the additional claims").

22 Here, the court previously certified several subclasses but denied certification of

23 other subclasses. See Certification Order. The settlement agreement defines the "Settlement Class"

24 as:

25 [A]II former and current non-exempt hourly employees who worked

at Taylor Farms Pacific, Inc. 's Tracy, California facilities during the
26 relevant t ime period. (For purposes of this Settleme nt Agreement,
'non-exempt hourly employees' includes employees and direct hires
27 of Taylor Farms Pacific, Inc. as wel l as temporary workers who
provided services to Taylor Farms, Pacific, [nc.).
28
6
 Case 2:13-cv-01282-KJM-AC Document 305 Filed 08/23/19 Page 7 of 9

Settlement, Mot., Ex. 2, ECF No. 287-1, at 12-48, § 2.1. This "Settlement Class" is significantly

2 broader than the certified subc lasses and appears to include subclasses for which the court denied

3 certification, though plaintiffs neglected to acknowledge the expansion in their motion.

4 At hearing, plaintiffs' counsel explained the broader class was warranted because

5 the cowt had denied ce1tification as to certain proposed classes without prejudice, leaving open the

6 possibility offuture certification, and because Taylor required assurances "a settlement for a certain

7 amount is going to ultimately and finally reso lve all potential claims that were or cou ld be raised

8 by any other action." Tr., ECF No. 300, at 6: I 3-22. Plaintiffs' counsel further explained he "hadn't

9 thought about" whether the broadened class must satisfy Rule 23 's requirements, but the pa1ties

10 agreed to supplemental briefing to address the iss ue. See id. at 7: 1, 19:20-23. As noted above,

11 plaintiffs' supp lemental brief and declaration are now before the court. See ECF Nos. 301, 302.

12 While that brief addresses the Rule 23 factors, it does so in a cursory manner that prevents the cowt

I3 from conducting any meaningful Rule 23 analysis and thus prevents the court from approving this

14 settlement.

15 Plaintiffs' sparse attempt to address Rule 23(a)(2)'s commonality requirement

16 highlights the inadequacies of their supplemental brief. See Supp. Br. at 3. Plaintiffs appear to

17 suggest that, because the settlement class is defined to include all " individuals who are or were

18 employed as non-exempt hourly employees at Taylor Farms Pacific's Tracy California production

19 facilities during the relevant time[,]" class members "[b]y definition ... have in common the fact

20 that they worked in non-exempt positions at certain facilities." Supp. Br. at 3.

2I Plaintiffs do not explain how class members ' shared employment status presents "a

22 common contention" that " is capable of classwide resolution" and wi ll " resolve an issue that is

23 central to the validity of each one of the claims in one stroke." Wal-Mart Stores, Inc. v. Dukes, 564

24 U.S. 338, 350. This showing is what commonality requires. See id. Instead, perhaps tacitly

25 acknowledging the shortcoming in their briefing on this certification prerequisite, plaintiffs argue

26 " it is routine for courts to a lter or expand prev iously certified c lasses for purposes of ce1tifying a

27 settlement c lass" and "[i]n order for Taylor Farms to finally conclude the claims made in the

28 /////
7
 Case 2:13-cv-01282-KJM-AC Document 305 Filed 08/23/19 Page 8 of 9

operative complaint, any settlement must necessarily include a ll such claims even though not

2 covered by this Court's certification orde r." Id. (footnote om itted).

3 fn other words, plaintiffs do not make an argument for commonality, they make an

4 a rgument for the cou1t's forego ing a commonality analysis in favor of approving their settlement.

5 Thi s argument is not persuas ive, but it is emblematic of plaintiffs' approach to the Rule 23 analysis

6 here. See, e.g., id. at 4 (arguing w itho ut e laboration that Rule 23(b)(3)'s predominance and

7 superiority requirements are satisfied because "those working at the subj ect fac ilities, as a whole,

8 were not afforded legally compliant working conditions and payment" and this case " is better

9 adjudicated as a class action"); cf In re Hyundai & Kia Fuel Econ. Litig. , 926 F.3d at 558-60

10 (discuss ing predominance requirement in settlement context).

11 Moreover, the court has no way of knowing w hether the parties' proposed settlement

12 class may be comprised of unique groups of class members with unique interests, but w ithout

13 necessary subclasses to recognize those differences; plaintiffs' earlier class certification motion

14 c learly suggested as much. See Certification Order (granti ng in part and denyi ng in part motion to

15 certify four subclasses). Plaintiffs offer no clarification on this po int.

16 It is ce1tainly possible that the proposed settlement class satisfi es Rule 23 's

17 requirements, and this order should not be construed as finding otherwise. But plaintiffs provide

18 no concrete explanation of the re levant deta ils of the entire settlement class they seek to ce1tify and

19 they omit any cogent showi ng of how that c lass satisfies Rule 23. The court cannot approve their

20 motion on this record.

21 B. Rea sonab leness

22 While plaintiffs' motion provides some explanation of the facts and circumstances

23 that led them to believe the settlement amount reached is adequate, he re as well they provide little

24 detail. See Mot. at 12- 13. Counsel's su pplementa l declaration provides additional information,

25 but appears to address only meal break vio lations and not a ll claims t he expanded settlement c lass

26 w ill release. S upp. Dee l. at 3-4 (calculating class's potential meal break damages); but see Mot.

27 at 7 (arguing settlement is particularly strong outcome in light ofjury verd ict in donning and doffing

28 case); Settlement § 2.6 (settlement agreement' s proposed release language under w hich c lass
8
 Case 2:13-cv-01282-KJM-AC Document 305 Filed 08/23/19 Page 9 of 9

members will release multiple c laims arising under California Labor Code, "such as claims for off-

2 the-clock work, minimum wages and overtime, meal period or rest break violations of any kind,

3 unpaid wages, rounding of time entries, penalties for failure to provide accurate and itemized wage

4 statements, and penalties for failure to timely pay wages at the separation of employment, and any

5 other benefit claimed on account of the al legations asserted in the operative complaint"). Assuming

6 plaintiffs choose to renew their motion, they must more completely explain how those additional

7 claims are accounted for in the settlement, or, alternatively, why they need not be accounted for

8 despite being released under the pa,ties' agreement.

9 JV. CONCLUSION

10 While the cou1t acknowledges and strives to further the strong judicial policy

11 favoring settlement, it cannot simply rubber stamp a class action settlement because it promises

12 recovery and follows years of hard-fought litigation. The motion is DENIED without prejudice to

13 a renewed motion that adequately addresses the court's remaining concerns described above.

14 Assuming plaintiffs wish to renew the motion, they may do so by filing a notice of renewal and

15 reliance on prior briefing, w ith supplemental briefing focus ing on only the issues called out by this

16 order.

17 IT IS SO ORDERED.

18 DATED: August 22, 20 19.

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 1 JANETTE WIPPER (#275264)
Chief Counsel
2 MARI MAYEDA (#110947)
Associate Chief Counsel
3 GRACE SHIM (#310692)
Senior Staff Counsel
4 IRINA TRASOVAN (#290372)
Staff Counsel
5 KAITLIN TOYAMA (#318993) C ONFOfiMEO COPY
Staff Counsel ORIG INAL FILED
Superior Court 0t California
6 DEPARTMENT OF FAIR EMPLOYMENT County of Los Anoeles
AND HOUSING
7 2218 Kausen Drive, Suite 100 JAN 08 2020
Elk Grove, CA 95758
8 Telephone: (916) 478-725 1 Sherri R. Carter, Executive O!i1cer/Clerk of Coun ·
Facsimile: (888) 382-5293 By: Isaac Lovo, Deputy
9
Attorneys for the DFEH
10 (Fee Exempt, Gov. Code,§ 6103)
11

12 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF LOS ANGELES
13

14
MELANIE MCCRACKEN, an individual; Case No. 18STCV03957
15 JESSICA NEGRON, an individual; and
GABRIELA DOWNIE, an individual, DECLARATION OF GRACE SHIM IN
16 SUPPORT OF THE DEPARTMENT OF FAIR
EMPLOYMENT AND HOUSING'S
Plaintiffs, OBJECTION TO PLAINTIFFS' MOTION
17 vs. FOR PRELIMINARY APPROVAL OF
18 SETTLEMENT
RIOT GAMES, INC., a Delaware
19 Corporation; and DOES I through 10, Hearing Date: January 22, 2020
Time: 1:30 p.m.
inclusive,
20 Dept.: SS-6
Judge: Hon. Elihu M. Berle
Defendants. ·
21
Action Filed: November 6, 2018
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McCracken, et al. v. Riot Games, Inc., et al.

Declaration of Grace Shim ISO DFEH' s Objection to Plaintiffs' Motion for Preliminary Approval of Settlement
 1 DECLARATION OF GRACE SHIM

2 I, Grace Shim, declare:

3 1. I am an attorney at law duly licensed to practice before all the courts of the State of

4 California. I am employed as Senior Staff Counsel with the Department of Fair Employment and

5 Housing (DFEH). I have personal knowledge of the facts set forth in this declaration, and, if called as a

6 witness, I could testify competently as to the trnth of the matters asserted.

7 2. On December 6, 2019, the DFEH requested from Plaintiffs' counsel any separate

8 settlement agreements between the former proposed class representative Melanie McCracken and Riot

9 Games, Inc. (Riot), as well as a few others who are represented by Plaintiffs ' counsel.

10 3. Between December 6, 2019 to December 23, 2019, Plaintiffs' counsel and the DFEH

11 communicated via email and phone about the DFEH's request for the separate settlements with Riot.

12 Plaintiffs counsel informed the DFEH that his clients would not provide these separate settlement

13 agreements to the D FEH.

14 4. Proposed class representatives Gabriel Downie and Jessica Negron, former proposed

15 class representative Melanie McCracken, and others represented by Plaintiffs' counsel entered into

16 separate settlements with Riot. On December 20, 2019, Plaintiffs' counsel stated that proposed class

17 representatives Gabriela Downie and Jessica Negron signed limited releases ofliability, former

18 proposed class representative Melanie McCracken signed a general release of liability, and others signed

19 releases as well.

20 5. On December 20, 2019, the DFEH requested from Riot's counsel all separate settlement

21 agreements between former proposed class representative Melanie McCracken and Riot, proposed class

22 representative Jessica Negron and Riot, proposed class representative Gabriela Downie and Riot, as well

23 as a couple of others who are represented by Plaintiffs' counsel.

24 Ill

25 Ill

26 Ill

27 Ill

28 Ill
-1-
McCracken, et al. v. Riot Games, Inc., et al.
Declaration of Grace Shim ISO DFEH 's Objection to Plaintiffs' Motion for Preliminary Approval of Settlement
 1 6. On January 6, 2020, Riot's counsel informed the DFEH that Riot would not provide thes

2 separate settlement agreements with the DFEH.

3 I declare under penalty of perjury under the laws of the State of California that the foregoing is

4 true and correct.

5 Executed on this 8th day of January 2020, in Elk Grove, California.

7 ,.....
8
Grace Shim
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-2-
McCracken, et al. v. Riot Games, Inc., et al.
Declaration of Grace Shim ISO DFEH's Objection to Plaintiffs' Motion for Preliminary Approval of Settlement