Free Declaration in Support - District Court of California - California

Case 4:07-cv—O2828-CW Document 31 Filed O2/O7/2008 Page 1 of 4
1 James F. Clapp, Esq., SBN 145814
DOSTART CLAPP GORDON & COVENEY
2 4370 La Jolla Village Drive, Suite 970
San Diego, CA 92122
3 Telephone: (858) 623-4200
Facsimile: (858) 623-4299
4 jclapp @ sdlaw.corn
5 Kevin J. Mclnemey, Esq., SBN 46941
Kelly Mclnerney, Esq., SBN 200017
6 Charles A. Jones, Esq., SBN 224915
MCINERNEY & JoNEs
7 18124 Wedge Parkway #503
Reno, NV 89511 A
8 Telephone: (775) 849-3 811
Facsimile: (775) 849-3866
9 kevin @mcinerneylaw.net
[email protected]
10 caj @mcinemeylaw.net
1 1 Attorneys for Plaintgjiv
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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15 LINDA YOUNG, MIKE SAFAIE, and Case No. C 07:2828 CW
JANICE KEVARI, individually and on behalf
16 of all others similarly situated, DECLARATION OF KEVIN J,
_ _ McINERNEY IN SUPPORT OF
17 Plalnllm PRELIMINARY APPRovAL or
18 V. CLASS ACTION SETTLEMENT
19 CHARLES SCHWAB & CO., INC.
20 Defendant.
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DECLARATION OF KEVIN J. McINERNEY IN SUPPORT OF Case No.
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT C 07:2828 CW

Case 4:07-cv—O2828-CW Document 31 Filed O2/O7/2008 Page 2 of 4
1 I, Kevin J. Mclnerney, declare:
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3 1. I make this declaration in support of preliminary approval for the settlement which
; has been proposed to this Court. I have been serving as co-counsel in this action and am familiar
6 with the factual and legal aspects of the case. I make this declaration based upon personal
7 knowledge and could competently testify in court regarding its recitals.
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9 2. I am a 1967 graduate of Yale Law School. I was admitted to the New York State
10 Bar in 1968 and joined the United States Attorney’s Office in the Southern District of New York.
E Several years later I transferred to the United States Attorney’ s Office in San Diego and became a
13 member of the California Bar in 1970. I have tried over 300 cases and handled in excess of fifty
14 appeals in the Ninth and Second Circuits and in the California Courts of Appeal.
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16 3. I support preliminary approval of this proposed settlement based on my knowledge
17 of this case and my experience in this area. Since 1988 my practice has been limited almost
18 exclusively to class actions. I practice with my daughter and my son-in—law and their practice is
19 similarly limited to class actions.
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22 4. Initially I was involved in class actions involving consumer fraud; however, over
23 the past eight years the majority of cases that we have handled have been wage and hour class
24 actions brought on behalf of employees. My firm has been involved in excess of fifty class
25 actions in state and federal courts where it has been alleged that the employees were improperly
26 misclassified as exempt from the protection of the overtime laws. In the great majority of these
27 cases I have served as either lead or co—lead counsel.
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DECLARATION OF KEVIN J. McINERNEY IN SUPPORT OF Case N0.
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT C 07:2828 CW

Case 4:07-cv—O2828-CW Document 31 Filed O2/O7/2008 Page 3 of 4
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2 5. I am familiar not only with the discovery necessary in wage and hour class actions
3 but I have considerable experience in developing and utilizing methodologies for their tri al.
4 Approximately thirteen years ago I tried to judgment a national class action in the San Francisco
5 Superior Court before the Honorable Carlos Bea, now of the Ninth Circuit. That case was tried
6 utilizing random statistical sampling of the class and my firm thereafter adapted that methodology
7 to a number of wage and hour class actions.
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10 6. Approximately four years ago I arbitrated, along with my current co-counsel
U James Clapp, a large wage and hour case before the Honorable William F. McDonald, retired
12 judge of the Orange County Superior Court. That case, involving four categories of managers
13 and assistant managers from Pep Boys, resulted in an award of 31.5 million dollars. In that case
I4 class member surveys were utilized to allow statistical conclusions. More recently I was involved
15 in a case involving assistant managers from Office Depot in the Denver District Court. That case
1; literally settled on the morning of trial. There we had developed a trial methodology that again
18 used random statistical sampling. Most recently, an overtime action brought on behalf of
19 insurance adjusters at Fireman’s Fund settled for 18 million dollars after the plaintiffs prevailed
20 on liability in the first phase of the trial in the Marin Superior Court. My firm has demonstrated a
21 willingness to not only file class actions but to fully litigate them. We believe our litigation
22 experience enhances our ability to assess a settlement such as the one now proposed.
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25 7. The instant settlement is a $2,125,000 total payout to approximately 600
26 employees. The employees involved provided support to the Financial Advisors working in
27 Schwab’s branches nationwide.
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DECLARATION OF KEVIN J. McINERNEY IN SUPPORT OF Case N0.
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT C 07:2828 CW

Case 4:07-cv—O2828-CW Document 31 Filed O2/O7/2008 Page 4 of 4
I 8. My firm has, over the past two years, been involved in several class actions on
2 behalf of stockbrokers who have sought overtime pay and recoupment for deductions made from
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their wages. We served as lead counsel in one such case, Glass v. UBS Financial Services, Case
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No. C-06--4068 MMC, where a nationwide settlement was granted final approval on January 26,
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6 2007 by Judge Maxine M. Chesney of the Northern District of California. In addition to that case
7 I am familiar with the details of settlements and pending settlements with other security broker
8 houses including Merrill Lynch, Citigroup (Smith Barney), Morgan Stanley, and Banc of
9 America. In particular I know how much money a broker class member would receive from
10 every month worked at the respective brokerage house. Those other settlements involved
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mainline brokers who earned considerably more than the support specialists at Schwab. The
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earlier broker cases often involved the issue of wage deductions. The instant proposed settlement
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14 with Charles Schwab & Co. compares favorably with those other settlements. For example, the
15 class members employed in California will receive over $200 net per month for work performed
16 prior to their reclassification if the proposed allocation is granted approval. That assumes that all
17 eligible members submit claims; to the extent this does not occur the individual payouts will
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increase.
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21 I declare under penalty of perjury under the laws of the State of California and the United
22 States of America that the foregoing is true and correct. Executed this 7 day of February, 2008 in
23 Reno, Nevada.
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26 /s/ Kevin J. Mclnerney `
Kevin J. Mclnemey, Esq.
27 Attorney far Plaintyf
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DECLARATION OF KEVIN J. McINERNEY IN SUPPORT OF Case N0.
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT C 07:2828 CW

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