SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES — CENTRAL DISTRICT
DECLARATION OF DR. CATHERINE LINDSTROM IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
I, Dr. Catherine Lindstrom, declare as follows:
I. INTRODUCTION AND QUALIFICATIONS
1. I am an expert retained by defendant Aurelius Media Americas Inc. ("AMA") through its counsel, Calderwood & Harkness LLP, to provide economic and statistical analysis in connection with Plaintiffs' Motion for Class Certification filed in the above-captioned action. I make this declaration in opposition to Plaintiffs' Motion for Class Certification and in support of Defendant AMA's Opposition thereto. I have personal knowledge of the facts set forth herein and, if called as a witness, could and would competently testify thereto.
2. I am a Principal and Senior Economist at Hargrove Analytics Inc., located at 515 S. Figueroa Street, Suite 1100, Los Angeles, California 90071. I hold a Doctor of Philosophy (Ph.D.) degree in Economics from the University of California, Berkeley, where my doctoral dissertation focused on labor supply models and wage rigidity in contingent employment markets. I also hold a Master of Arts degree in Economics from the University of Michigan, Ann Arbor, and a Bachelor of Arts degree in Mathematics and Economics, summa cum laude, from Wellesley College. My areas of professional specialization include labor economics, wage-and-hour damages analysis, and statistical modeling in employment litigation. Over the past twenty years, I have been retained as an expert witness or consulting expert in more than seventy-five employment class action and collective action matters in California state courts, California federal courts, and federal courts in other jurisdictions. I have provided expert testimony—both at deposition and at trial or evidentiary hearing—in approximately forty of those matters. My testimony has addressed issues including damages modeling, statistical sampling, common proof methodologies, and the reliability of economic assumptions underlying class-wide damages estimates. My full curriculum vitae, including a list of publications, prior testimony, and retention history for the preceding four years, is attached to my expert report as Appendix A. A true and correct copy of my expert report, dated June 9, 2023, is attached hereto as Exhibit 1.
3. I was retained by Calderwood & Harkness LLP on or about March 1, 2023, pursuant to an expert retention letter executed on that date. My hourly rate for work performed in this engagement is $700 per hour. The hourly rate for senior analyst staff at Hargrove Analytics Inc. who have assisted me in connection with this engagement is $375 per hour. My compensation in this matter is in no way contingent upon the substance or outcome of my opinions, the outcome of this litigation, or any other result. I have been compensated solely for the time I have expended in connection with reviewing materials, conducting analysis, preparing my expert report, and preparing this declaration.
4. I was retained to perform the following tasks in connection with this matter: (a) analyze and evaluate the damages model presented in the expert report of Dr. Howard Rennick of Pinnacle Economic Consulting Group LLC, dated April 28, 2023 (the "Rennick Report"), which was submitted in support of Plaintiffs' Motion for Class Certification; (b) assess whether Dr. Rennick's model constitutes a reliable "common methodology" for measuring class-wide damages attributable to Plaintiffs' theories of liability; and (c) prepare an alternative damages calculation based on available data, including but not limited to timekeeping records, attestation data, payroll records, and deposition testimony. I completed my expert report on June 9, 2023, and a true and correct copy is attached hereto as Exhibit 1 and incorporated by reference into this declaration.
5. In forming the opinions set forth in this declaration and in my expert report, I reviewed and considered the following materials:
a. The expert report of Dr. Howard Rennick, Pinnacle Economic Consulting Group LLC, dated April 28, 2023, including all appendices and supporting exhibits thereto;
b. NovaPay Solutions TimeTrack Pro timekeeping data for all AMA California non-exempt employees for the class period of November 1, 2018 through the present, comprising approximately 612,000 individual shift records across seven production facilities;
c. NovaPay Solutions Missed Meal Attestation records, organized by facility, for the class period, totaling approximately 18,400 individual attestation entries;
d. System configuration records for the NovaPay Solutions TimeTrack Pro platform, including auto-deduction settings by facility, attestation feature activation and deactivation logs by facility, and system administrator change logs for the class period;
e. AMA payroll data and wage statements for all California non-exempt employees during the class period, as produced in discovery;
f. The AMA Employee Handbook, March 2021 revision (Bates Nos. AMA-00012501 through AMA-00012687);
g. The AMA Meal and Rest Break Policy, dated January 2019 (Bates Nos. AMA-00008842 through AMA-00008859);
h. Deposition transcripts of named plaintiffs Marisol Fuentes (taken March 14, 2023), Derek Halloran (taken March 21, 2023), and Yesenia Padilla (taken March 28, 2023);
i. Deposition transcripts of AMA corporate representatives and employees Lorraine Okafor (Director of Human Resources, taken April 4, 2023), Celine Arroyo (Director of Production Operations, taken April 11, 2023), Karen Fong (Payroll Manager, taken April 18, 2023), and Marcus Yee (IT Systems Administrator, taken April 6, 2023);
j. The expert report of Dr. Rajesh Makhija, Workforce Dynamics Consulting LLC, dated May 19, 2023, including all appendices and statistical analyses thereto;
k. Plaintiffs' Motion for Class Certification and all supporting declarations, memoranda, and exhibits filed in connection therewith;
l. AMA production schedules and call sheets for representative show units, including but not limited to "Kitchen Clash" (studio-based, Facility 1), "Summit Challenge" (field-based, Facility 4), "Metro Beat Live" (live events, Facility 4), and "Streamline" (digital content, Facility 7), as produced in discovery;
m. Industrial Welfare Commission Wage Order 12-2001, regulating wages, hours, and working conditions in the motion picture industry; and
n. Such other materials as are identified in Appendix B to my expert report.
II. SUMMARY OF OPINIONS
6. Based on my review of the materials described above, my education and training, my professional experience in labor economics and damages analysis in employment class actions, and the analysis set forth in detail in my expert report (Exhibit 1), I hold the following four primary opinions:
Opinion 1: Dr. Rennick's damages model is fundamentally flawed because it rests on the unsupported assumption that every auto-deducted meal period during the class period was a "missed" meal period for which a one-hour premium is owed under California Labor Code section 226.7. This assumption systematically overstates damages by treating a timekeeping mechanism—the NovaPay Solutions TimeTrack Pro automatic deduction of thirty minutes for a meal period—as affirmative proof of a substantive meal period violation. The auto-deduction is a data-recording tool; it is not evidence that the employee did not receive a compliant, duty-free, thirty-minute meal period. By equating the auto-deduction with a violation, Dr. Rennick conflates the measurement system with the conduct it is designed to measure.
Opinion 2: Dr. Rennick's model fails to account for significant variation across AMA's seven California production facilities and fourteen distinct show units, rendering it unreliable as a class-wide "common methodology" for measuring damages. Dr. Makhija's report demonstrates statistically significant differences in shift duration, overtime frequency, supervisory practices, and working conditions across these facilities and show units. A model that applies a uniform violation rate and a uniform damages assumption across all facilities and show units cannot reliably measure the damages actually attributable to any class-wide theory of liability.
Opinion 3: Dr. Rennick's rest period violation rate assumption of fifty percent (50%) is entirely unsupported by empirical data. The fifty percent figure is not derived from any statistical analysis, survey, time study, or systematic data source. It is based solely on anecdotal declarations from the three named plaintiffs—Marisol Fuentes, Derek Halloran, and Yesenia Padilla—each of whom worked in a different division, at a different facility, under different supervisors, during different time periods. The experiences of three individuals cannot reliably be extrapolated to a putative class of approximately 1,850 members across fourteen show units and seven facilities.
Opinion 4: An alternative damages calculation, using actual Missed Meal Attestation data, facility-level analysis, and conservative extrapolation for facilities where the attestation feature was not activated, yields aggregate damages of approximately $5.8 million. This figure is substantially less than Dr. Rennick's total figure of $38.6 million, which includes approximately $12.2 million in PAGA penalties. The difference of approximately $32.8 million—or roughly 85%—is almost entirely attributable to Dr. Rennick's unsupported assumption that every auto-deducted meal period constitutes a violation.
III. OVERVIEW OF DR. RENNICK'S DAMAGES MODEL
7. Dr. Rennick's expert report proposes an aggregate damages model that calculates total damages of approximately $38.6 million for the putative class. As I understand Dr. Rennick's methodology and the calculations set forth in his report, his aggregate figure is composed of the following principal categories of damages and penalties:
• First meal period premiums: approximately $16.3 million, based on the number of shifts where an auto-deduction was applied without a corresponding Missed Meal Attestation (treated by Rennick as missed meal periods);
• Rest period premiums: approximately $8.4 million, based on an assumed fifty percent (50%) rest period violation rate applied to all eligible shifts during the class period;
• Off-the-clock overtime damages: approximately $12.2 million (as adjusted from Rennick's gross calculation), representing alleged uncompensated pre-shift and post-shift work at overtime rates;
• Wage statement penalties: included in the total figure, calculated as derivative penalties arising from the underlying meal period, rest period, and off-the-clock violations;
• PAGA penalties: approximately $12.2 million, calculated at maximum statutory rates across all alleged violations and all aggrieved employees;
• Total: approximately $38.6 million, with certain overlap adjustments between categories to avoid double-counting where a single shift gives rise to multiple claims.
I note that the total figure of $38.6 million includes PAGA penalties of $12.2 million; the compensatory damages component (excluding PAGA) is therefore approximately $26.4 million. Even setting aside the PAGA penalties, Dr. Rennick's compensatory damages figure is substantially overstated for the reasons set forth below.
8. The core assumption underlying Dr. Rennick's meal period damages calculation is that every shift during the class period on which the NovaPay Solutions TimeTrack Pro system applied an automatic thirty-minute meal period deduction—and on which no Missed Meal Attestation was recorded—constitutes a shift on which the employee's meal period was "missed," "shortened," or otherwise non-compliant. According to the timekeeping data I reviewed, the TimeTrack Pro system applied the automatic deduction on approximately 612,000 shifts during the class period (November 1, 2018 through the present). Dr. Rennick subtracted from this figure only those shifts where a Missed Meal Attestation was recorded—approximately 18,400 shifts—on the ground that those shifts were already identified and remediated through AMA's attestation process. The resulting figure of approximately 593,600 shifts constitutes, in Dr. Rennick's model, the total number of "missed" meal periods for which premium pay is owed. I disagree fundamentally with this approach, as I explain in detail in Section IV below.
9. For rest period violations, Dr. Rennick assumed a fifty percent (50%) violation rate across the entire putative class. He applied this rate to the approximately 612,000 eligible shifts during the class period, yielding approximately 306,000 shifts on which a rest period violation allegedly occurred. He then multiplied this figure by an average one-hour premium at an average hourly rate of approximately $27.50 per hour (the weighted average regular rate of pay for putative class members during the class period), producing a rest period premium damages figure of approximately $8.4 million. I note that the fifty percent violation rate is not derived from any analysis of timekeeping data, because rest periods are not tracked in AMA's timekeeping system, as I discuss in Section V below.
10. For off-the-clock overtime damages, Dr. Rennick assumed that each class member performed an average of 37.5 minutes of uncompensated work per shift—the arithmetic midpoint of the 30-to-45-minute range alleged in Plaintiffs' class certification papers. Rennick applied this assumption broadly across the putative class, multiplying the assumed uncompensated time by 1.5 times the regular rate of pay (i.e., the overtime premium rate) on the theory that putative class members generally worked shifts exceeding eight hours in a workday, such that any additional unrecorded time would constitute overtime. This calculation yielded approximately $12.2 million in off-the-clock overtime damages before adjustments. As I explain in Section VI below, the 37.5-minute assumption has no empirical foundation and cannot serve as a reliable basis for class-wide damages.
IV. CRITIQUE OF DR. RENNICK'S MEAL PERIOD DAMAGES CALCULATION
11. The critical flaw in Dr. Rennick's meal period damages calculation is his treatment of the NovaPay Solutions TimeTrack Pro automatic meal deduction as evidence—indeed, as dispositive proof—that employees did not receive compliant meal periods. This treatment is fundamentally mistaken. The TimeTrack Pro auto-deduction is a timekeeping method, not evidence of a meal period violation. The system is designed to automatically deduct thirty minutes from an employee's recorded work time to reflect the thirty-minute, duty-free meal period that the employee is presumed to have taken. When an employee clocks in at the beginning of a shift, takes a compliant thirty-minute meal period during the shift, and clocks out at the end of the shift, the auto-deduction accurately captures the time the employee spent on a meal break. The auto-deduction, standing alone, does not establish that a meal period was missed, shortened, interrupted, or otherwise non-compliant. It merely reflects the system's default assumption—consistent with AMA's written policy—that the employee took the required break.
12. Dr. Rennick's model inverts the proper evidentiary inference that should be drawn from the auto-deduction data. The auto-deduction system operates on the assumption that the employee has taken a compliant meal period; the Missed Meal Attestation feature exists to capture the exception—that is, to identify shifts on which the employee did not take a compliant break. Under a proper analytical framework, the auto-deduction is neutral evidence that most employees took compliant breaks, which is the default assumption consistent with the system's design and purpose. An employee who did not receive a compliant break was expected to complete a Missed Meal Attestation, which would trigger both a premium payment and a corrective workflow. Rather than using the auto-deduction as neutral baseline evidence and the Missed Meal Attestation as the indicator of a violation, Dr. Rennick inverts this framework entirely. He treats the auto-deduction as proof that no compliant break was taken unless the absence of a break is affirmatively disproven by an attestation record. In other words, Dr. Rennick assumes that every employee on every shift failed to take a meal break unless that employee affirmatively reported having taken one—the precise opposite of the system's design. This inversion is analytically unsound and produces a massive overstatement of damages.
13. The Missed Meal Attestation data that is available in this case directly undermines Dr. Rennick's core assumption. The Missed Meal Attestation feature of the TimeTrack Pro system was activated at four of AMA's seven California production facilities during portions of the class period. At those four facilities—West Hollywood HQ (Facility 1), Sherman Oaks (Facility 3), Hollywood (Facility 5), and Santa Monica (Facility 6)—employees who missed or were denied a compliant meal period were prompted by the system to complete a Missed Meal Attestation at the end of their shift. The attestation data from these four facilities reveals the following meal period violation rates:
• West Hollywood HQ (Facility 1): Approximately 2.3% of eligible shifts resulted in a Missed Meal Attestation;
• Sherman Oaks (Facility 3): Approximately 4.1% of eligible shifts resulted in a Missed Meal Attestation;
• Hollywood (Facility 5): Approximately 1.8% of eligible shifts resulted in a Missed Meal Attestation;
• Santa Monica (Facility 6): Approximately 3.7% of eligible shifts resulted in a Missed Meal Attestation.
These attestation rates indicate that approximately 96% to 98% of employees at the four facilities with the attestation feature did not report a missed meal period on any given shift. The most natural and reasonable inference from this data is that those employees actually took compliant, thirty-minute, duty-free meal breaks. Dr. Rennick's model, by contrast, assumes that nearly 100% of those employees—the 96% to 98% who did not file attestations—were actually denied compliant breaks but simply did not report the violation. This assumption is implausible on its face and is not supported by any evidence in the record.
14. I recognize that the Missed Meal Attestation feature was not activated at three of AMA's seven California facilities during portions of the class period. Specifically, the feature was not activated at the Studio City facility (Facility 2), the Burbank facility (Facility 4), or the El Segundo facility (Facility 7). At these three facilities, employees who missed or were denied meal periods did not have the electronic attestation mechanism available to them, and their missed meals may not have been systematically captured in the timekeeping data. I agree that this data gap presents an analytical challenge. However, the proper approach to this challenge is not to assume—as Dr. Rennick does—a 100% meal period violation rate at these three facilities. A 100% violation rate would mean that no employee at any of these three facilities ever took a compliant meal period on any shift during the entire class period—an assumption that defies common sense and is contradicted by the deposition testimony in the record. Rather, the proper analytical approach is to use available data sources—including the attestation rates at comparable facilities, deposition testimony from employees and supervisors at the non-attestation facilities, HR complaint data, and other relevant evidence—to estimate a reasonable violation rate for these facilities. I have employed this approach in my alternative damages calculation, which I describe in Section VIII below.
15. The deposition testimony in this case supports a far more nuanced picture of meal period compliance than Dr. Rennick's model assumes. Derek Halloran, a named plaintiff who worked in post-production at the Hollywood facility (Facility 5), testified at his deposition that he was "usually" able to take his meal breaks, except during what he described as "crunch periods" of approximately two to three weeks before delivery deadlines. (Halloran Dep. Tr. at 84:12–85:3.) He further testified that during non-crunch periods—which he estimated comprised approximately 75% to 80% of his working time—he "pretty much always" took a full thirty-minute lunch break. (Halloran Dep. Tr. at 86:7–14.) This testimony is inconsistent with a 100% violation rate, or anything approaching it, even for Mr. Halloran individually. Celine Arroyo, AMA's Director of Production Operations, testified that meal period compliance varied significantly by show type and production format. Specifically, Ms. Arroyo testified that studio-based productions such as "Kitchen Clash"—which filmed on a fixed set at the West Hollywood HQ facility—had "very reliable" and "consistent" meal breaks that were built into the production schedule and announced by the first assistant director. (Arroyo Dep. Tr. at 127:5–128:9.) In contrast, she testified that field-based productions such as "Summit Challenge"—which filmed on location in remote areas—experienced "more difficulty" providing timely meal breaks because of logistical constraints, weather delays, and the absence of fixed production infrastructure. (Arroyo Dep. Tr. at 130:14–131:22.) This variation across show types is significant because it demonstrates that meal period compliance at AMA was not uniform but rather depended on factors specific to individual show units, production formats, and facility environments—precisely the kind of variation that Dr. Rennick's model ignores.
16. Dr. Rennick's model also fails to account for meal period premiums that AMA already paid during the class period. AMA's payroll records reflect that meal period premium payments were processed through the Missed Meal Attestation system for approximately 18,400 shifts during the class period. Dr. Rennick subtracts these 18,400 shifts from his total of approximately 612,000 auto-deducted shifts, producing a net figure of approximately 593,600 allegedly "missed" meal periods. However, Dr. Rennick does not investigate or account for the possibility that additional meal period premium payments were made outside the attestation system—for example, through manual supervisor adjustments to timekeeping records, through payroll corrections initiated by the Human Resources department, or through resolutions of individual employee complaints. Lorraine Okafor, AMA's Director of Human Resources, testified at her deposition that the HR department received approximately fourteen formal complaints related to meal periods during the class period and that nine of those fourteen complaints—approximately 64%—resulted in premium payments to the affected employees. (Okafor Dep. Tr. at 63:8–64:17.) While the total number of complaints and payments identified through Ms. Okafor's testimony is relatively small in absolute terms, it illustrates the existence of a remediation pathway that is not captured in the attestation data alone. A reliable damages model should account for all premium payments already made, regardless of the mechanism through which they were processed. Dr. Rennick's model does not do so.
V. CRITIQUE OF REST PERIOD DAMAGES CALCULATION
17. Dr. Rennick's assumption of a fifty percent (50%) rest period violation rate across the entire putative class is empirically unsupported. The 50% figure is not based on any statistical analysis of timekeeping data, any survey or sampling of class members, any time-and-motion study, any systematic review of supervisory records, or any other empirical data source. It is extrapolated solely and entirely from the declarations of the three named plaintiffs—Marisol Fuentes, Derek Halloran, and Yesenia Padilla—each of whom described her or his individual experience with rest period practices at a single facility, in a single division, under specific supervisors, during a specific time period. Even accepting the named plaintiffs' accounts at face value, their individual experiences provide no basis for inferring a class-wide violation rate applicable to approximately 1,850 putative class members across fourteen show units and seven facilities. A 50% violation rate is not a "finding" or an "estimate" in any meaningful analytical sense; it is a guess. It is, at best, a rough midpoint between zero and 100%, and it lacks any connection to the actual frequency of rest period violations at AMA during the class period.
18. There is a straightforward reason why Dr. Rennick was unable to conduct any empirical analysis of rest period compliance: rest periods are not tracked in the NovaPay Solutions TimeTrack Pro system. This is consistent with standard industry practice. Under California law, rest periods are paid time during which non-exempt employees are relieved of all duties. Because rest periods are paid time—unlike meal periods, which are typically unpaid and therefore must be recorded for timekeeping and payroll purposes—employers are generally not required to record rest period start and stop times, and most do not. AMA does not record rest period times in its timekeeping system, and there is no systematic data source from which to derive a class-wide rest period violation rate. Dr. Rennick acknowledges this limitation in his report (Rennick Report at p. 34, n.18) but proceeds to apply a 50% violation rate nonetheless, characterizing it as a "conservative estimate" based on the named plaintiffs' testimony. It is not conservative; it is speculative. An assumption that half of all rest periods during approximately 612,000 shifts were denied—representing approximately 306,000 alleged violations—requires far more rigorous support than the declarations of three individuals.
19. Beyond the absence of empirical data, the named plaintiffs' experiences are simply not generalizable to the putative class as a whole. Marisol Fuentes worked in the Unscripted Programming division at the Studio City facility (Facility 2), primarily on the show unit "Homefront Reno." Derek Halloran worked in the Post-Production division at the Hollywood facility (Facility 5), primarily on the show units "Kitchen Clash" and "Date Night Disaster." Yesenia Padilla worked in the Live Events division at the Burbank facility (Facility 4), primarily on the show unit "Metro Beat Live." Each of these individuals worked in a different division, at a different facility, under different supervisors, on different show units, with different production schedules and different working conditions. Dr. Rajesh Makhija's expert report, submitted on behalf of AMA and dated May 19, 2023, presents a comprehensive statistical analysis demonstrating that there are statistically significant differences in working conditions across AMA's fourteen show units and seven facilities. Dr. Makhija's analysis reveals significant variation in average shift length, overtime frequency, the ratio of studio-based to field-based work, supervisory span of control, and employee turnover rates—all factors that are reasonably expected to correlate with rest period compliance. Extrapolating a single, uniform rest period violation rate from the experiences of three individuals working under three distinct sets of conditions and applying it to a class of approximately 1,850 individuals working under fourteen distinct sets of conditions is methodologically unsound. It does not constitute a "common methodology" for measuring damages; it constitutes an assumption imposed upon data that it does not fit.
VI. CRITIQUE OF OFF-THE-CLOCK DAMAGES CALCULATION
20. Dr. Rennick's assumption that each putative class member performed an average of 37.5 minutes of uncompensated, off-the-clock work per shift lacks any empirical foundation. The 37.5-minute figure is the arithmetic midpoint of the thirty-to-forty-five-minute range alleged in Plaintiffs' class certification papers and in the declarations of certain named plaintiffs and class members. It is not derived from any analysis of timekeeping data, work logs, badge swipe records, surveillance footage, electronic communications metadata, or any other systematic measurement of actual employee work time. Dr. Rennick acknowledges in his report that there is no direct data source measuring off-the-clock work (Rennick Report at p. 41), and he characterizes the 37.5-minute figure as a "reasonable midpoint estimate" drawn from Plaintiffs' declarations. In my opinion, this is insufficient to support a class-wide damages calculation of $12.2 million. A "midpoint" of an alleged range drawn from lay declarations is not an analytical methodology; it is a simple averaging of allegations.
21. The nature and extent of alleged off-the-clock work is inherently individualized, varying along multiple dimensions that preclude uniform, class-wide measurement. The type and duration of pre-shift setup activities and post-shift wrap activities differ significantly by job function—a production coordinator's pre-shift duties (reviewing call sheets, coordinating crew logistics, confirming location permits) are qualitatively and quantitatively different from a post-production assistant's pre-shift duties (initializing editing workstations, loading project files, reviewing overnight render outputs), which in turn differ from a segment coordinator's pre-shift duties (preparing interview materials, coordinating talent schedules, staging props). These differences are compounded by variation across show units: studio-based productions such as "Kitchen Clash" operate on relatively fixed schedules with predictable setup and wrap times, while field-based productions such as "Summit Challenge" involve variable setup requirements that depend on location, weather, and terrain. Live events productions such as "Metro Beat Live" have their own distinct operational rhythms. Further, the extent of alleged off-the-clock work varies by individual supervisor's expectations and management style. Celine Arroyo testified at her deposition that some crew members arrive at the production facility early on a voluntary basis to "get ahead" on their tasks, organize their workspaces, or socialize with colleagues before the formal start of the work day. (Arroyo Dep. Tr. at 145:3–146:11.) Ms. Arroyo further testified that this early arrival was not required or expected by AMA and that employees who arrived at the scheduled call time were not subject to any adverse consequences. (Arroyo Dep. Tr. at 146:12–147:5.) To the extent that some employees voluntarily arrived early and performed tasks before the start of their scheduled shifts, this time may not constitute compensable "suffered or permitted" work under California law, and a reliable damages model must distinguish between compensable and non-compensable pre-shift activity—a distinction that Dr. Rennick's model does not attempt to draw.
22. For these reasons, a class-wide assumption of uniform off-the-clock work—37.5 minutes per shift for every employee on every shift across every facility and show unit—is not a reliable damages methodology. It does not account for the variation in pre-shift and post-shift activities by job function, show unit, facility, production phase, or individual circumstance. It does not distinguish between compensable and non-compensable pre-shift activity. It does not rely on any systematic measurement of actual off-the-clock work time. It is, in my opinion, not a "common methodology" within the meaning of the class certification framework because it cannot reliably measure damages attributable to any specific class-wide theory of liability. To the extent off-the-clock claims are pursued, the damages associated with those claims would need to be determined on an individualized basis, taking into account the specific circumstances of each employee, each shift, and each facility.
VII. PAGA PENALTIES CRITIQUE
23. Dr. Rennick's PAGA penalty calculation of approximately $12.2 million assumes the application of maximum statutory penalties under the Private Attorneys General Act of 2004, California Labor Code section 2698 et seq. Specifically, Dr. Rennick applies penalties at the rate of $100 per aggrieved employee per initial pay period in which a violation occurred and $200 per aggrieved employee per subsequent pay period in which a violation occurred. He applies these penalty rates across the full putative class at the assumed violation rates described above—i.e., a near-100% meal period violation rate, a 50% rest period violation rate, and a 37.5-minute off-the-clock overtime violation on every shift. At these assumed violation rates, the statutory penalties accumulate rapidly across approximately 1,850 putative class members over a class period spanning more than four years. However, Dr. Rennick's calculation does not account for the Court's broad statutory discretion under California Labor Code section 2699(e)(2) to reduce PAGA penalties where the application of the maximum statutory penalties would be "unjust, arbitrary and oppressive, or confiscatory." This discretion is an essential component of the PAGA penalty framework, and any damages model that purports to estimate PAGA penalties must account for it.
24. California courts have routinely exercised their discretion under section 2699(e)(2) to reduce PAGA penalties by seventy-five percent (75%) to ninety percent (90%) or more below the maximum statutory amount. Courts consider range factors in determining the appropriate reduction, including, among others: (a) whether the employer's violations were willful or inadvertent; (b) whether the employer maintained facially compliant written policies; (c) whether the employer took corrective action upon learning of the violations; (d) the employer's financial condition; and (e) the proportionality of the penalty to the harm caused. AMA's circumstances are relevant to each of these factors. AMA maintained written meal and rest break policies throughout the class period (the AMA Meal and Rest Break Policy, dated January 2019, and the AMA Employee Handbook, March 2021 revision). AMA implemented the Missed Meal Attestation feature in the TimeTrack Pro system at four of its seven California facilities, providing a mechanism for employees to report missed meals and receive premium payments. Upon identification of the gap in attestation feature coverage at the remaining three facilities—Studio City (Facility 2), Burbank (Facility 4), and El Segundo (Facility 7)—AMA took prompt corrective action to activate the feature at those facilities. These facts support a substantial reduction from the maximum statutory penalty. Dr. Rennick's failure to account for this well-established judicial practice renders his $12.2 million PAGA penalty figure unreliable and misleading.
VIII. ALTERNATIVE DAMAGES CALCULATION
25. I have prepared an alternative damages calculation that is based on actual data where available and conservative, analytically defensible assumptions where data gaps exist. The methodology I employed is as follows:
(1) Meal Period Premiums: For the four facilities where the Missed Meal Attestation feature was activated (West Hollywood HQ/Facility 1, Sherman Oaks/Facility 3, Hollywood/Facility 5, and Santa Monica/Facility 6), I used the actual attestation rates at those facilities—the weighted average of which is approximately 3.0%—as the baseline meal period violation rate. For the three facilities where the attestation feature was not activated (Studio City/Facility 2, Burbank/Facility 4, and El Segundo/Facility 7), I applied a conservative upward adjustment, doubling the average attestation rate from approximately 3.0% to approximately 6.0%, to account for the reasonable possibility that a higher proportion of employees at those facilities missed meal periods without a reporting mechanism available to them. I further applied an additional multiplier to account for potential underreporting, as described in paragraph 26 below.
(2) Rest Period Premiums: I excluded rest period premiums from my alternative damages calculation because there is no reliable common data source from which to derive a class-wide rest period violation rate. As discussed in Section V above, rest periods are not recorded in AMA's timekeeping system, and the 50% violation rate assumed by Dr. Rennick is speculative and unsupported. In my professional opinion, the absence of any systematic data on rest period compliance renders it impossible to construct a reliable, class-wide damages model for rest period claims using common proof. I note that this conclusion is consistent with the analytical principle that a damages model must be grounded in evidence, not assumption.
(3) Off-the-Clock Overtime: I excluded off-the-clock overtime damages from my alternative calculation because, as discussed in Section VI above, the nature and extent of alleged off-the-clock work is inherently individualized and cannot be reliably measured using a uniform class-wide assumption.
(4) Wage Statement Penalties: I calculated derivative wage statement penalties under California Labor Code section 226(e) based only on the meal period violations identified through my alternative methodology. Because wage statement penalties are derivative—they arise from the failure to accurately record meal period premiums owed on wage statements—the penalty calculation is limited to those shifts on which my analysis indicates a meal period violation actually occurred.
(5) PAGA Penalties: I applied a substantial reduction from the maximum statutory penalty amount, consistent with the judicial practice described in Section VII above. Based on my review of reported PAGA penalty reductions in comparable cases, I estimated PAGA penalties in the range of $500,000 to $1,000,000—reflecting a reduction of approximately 92% to 96% from Dr. Rennick's figure of $12.2 million.
26. The detailed calculation of meal period premium damages under my alternative methodology is as follows:
Facilities 1, 3, 5, and 6 (Attestation Feature Active): At these four facilities, the weighted average Missed Meal Attestation rate during the class period was approximately 3.0%. During the class period, approximately 385,000 shifts were worked at these four facilities by non-exempt employees who are members of the putative class. Applying the 3.0% attestation rate to 385,000 shifts yields approximately 11,550 shifts on which a meal period violation was reported through the attestation system. At the weighted average regular rate of pay of approximately $27.50 per hour, this translates to approximately $317,625 in meal period premiums. Critically, the vast majority of these premiums—approximately $317,625—were already paid to employees through the attestation-triggered premium payment process. The net amount of uncompensated meal period violations at these four facilities is therefore minimal and consists primarily of shifts where an attestation was filed but the premium was not correctly processed through payroll, which I estimate at less than $15,000 based on my review of payroll records.
Facilities 2, 4, and 7 (Attestation Feature Not Active): At these three facilities, the Missed Meal Attestation feature was not activated during portions of the class period, and employees did not have the electronic reporting mechanism available to them. During the class period, approximately 227,000 shifts were worked at these three facilities by non-exempt putative class members. Because I cannot directly observe attestation rates at these facilities, I applied a conservative assumed violation rate of approximately 6.0%—double the weighted average attestation rate at the four facilities where the feature was active. This upward adjustment accounts for the reasonable possibility that the absence of a convenient electronic reporting mechanism resulted in a higher actual violation rate or a lower rate of identification and remediation. Applying the 6.0% rate to 227,000 shifts yields approximately 13,620 shifts on which a meal period violation likely occurred. At the weighted average rate of approximately $27.50 per hour, this translates to approximately $374,550 in meal period premiums owed.
Underreporting Adjustment: I recognize that even at facilities where the Missed Meal Attestation feature was active, some employees may have failed to complete attestations for missed meal periods—whether due to time pressure, lack of awareness of the attestation process, cultural reluctance to report compliance concerns, or other factors. To account for this potential underreporting, I applied a 2× multiplier to the combined meal period premium figures for all seven facilities. This multiplier is conservative in that it assumes the true violation rate is twice as high as the observed or estimated rate—a substantial upward adjustment that, in my opinion, more than compensates for potential underreporting bias.
Total Meal Period Premiums: After applying the underreporting multiplier and accounting for premiums already paid, my alternative calculation yields total meal period premium damages in the range of approximately $2.8 million to $3.4 million. For purposes of the summary calculation below, I use the upper bound of this range: approximately $3.4 million.
27. Wage statement penalties under my alternative methodology are calculated as a derivative of the meal period violations identified through the analysis described above. Under California Labor Code section 226(e), an employee who suffers injury as a result of a knowing and intentional failure to comply with wage statement requirements is entitled to the greater of actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) for each subsequent violation, up to a maximum aggregate penalty of four thousand dollars ($4,000) per employee. Based on the number of pay periods affected by uncorrected meal period violations under my alternative methodology—and assuming that the failure to include meal period premiums on wage statements constitutes a "knowing and intentional" violation for purposes of section 226(e), which AMA does not concede—I estimate total wage statement penalties of approximately $800,000.
28. PAGA penalties under my alternative methodology are estimated in the range of $500,000 to $1,000,000. This range reflects a reduction of approximately 92% to 96% from Dr. Rennick's maximum statutory penalty calculation of $12.2 million. The magnitude of this reduction is consistent with reductions applied by California courts in comparable cases where the employer maintained written compliance policies, implemented correction mechanisms, and took remedial action upon identification of systemic issues. As noted above, AMA maintained a written Meal and Rest Break Policy throughout the class period, implemented the Missed Meal Attestation feature at four of seven facilities, and took prompt corrective action to activate the feature at the remaining three facilities upon identifying the gap. These mitigating factors, considered together, support a substantial reduction from the maximum statutory penalty.
29. My total alternative damages estimate is summarized as follows:
As reflected in the table above, my alternative damages calculation yields a total of approximately $5.8 million, excluding PAGA penalties above $1.0 million. This figure represents my best estimate of class-wide damages based on actual data and conservative analytical assumptions.
30. The comparison between Dr. Rennick's $38.6 million figure and my $5.8 million alternative figure is stark. Dr. Rennick's estimate is approximately 6.7 times larger than mine. The difference—approximately $32.8 million—is almost entirely attributable to Dr. Rennick's unsupported assumption that every shift on which the TimeTrack Pro auto-deduction was applied constitutes a "missed" meal period. If that single assumption is corrected—by using actual attestation data and reasonable estimates in lieu of a blanket 100% violation rate—the damages figure decreases by approximately 85%. This disparity underscores the degree to which Dr. Rennick's model depends on an assumption that is contradicted by the available data and cannot reliably measure class-wide damages.
IX. DR. RENNICK'S MODEL AS A "COMMON METHODOLOGY"
31. Under Granite Harbor Partners LLC v. Behrend (2013) 569 U.S. 27, and consistent with California class certification principles, a damages model offered in support of class certification must be capable of measuring damages attributable to the plaintiff's class-wide theory of liability using common proof. A model that relies on assumptions disconnected from the theory of liability, or that cannot distinguish between injured and uninjured class members, does not satisfy this requirement. In my opinion, Dr. Rennick's damages model fails the Northgate Enterprises test for the following reasons:
First, the model assumes a near-100% meal period violation rate across all seven facilities and all fourteen show units, regardless of individual circumstances, facility-level variation, or show-unit-level variation. This assumption does not match any plausible theory of liability. Even Plaintiffs' own class certification papers acknowledge that some employees received compliant meal breaks—the theory of liability is premised on AMA's policy of applying automatic deductions without adequate safeguards, not on the proposition that every employee on every shift was literally denied a meal period. By assuming a violation on every auto-deducted shift, Dr. Rennick's model measures damages that would flow from a theory of liability that no party has actually advanced.
Second, the model treats the auto-deduction as proof of a substantive violation rather than as a neutral timekeeping mechanism. As I have explained, this conflates the measurement system with the underlying conduct. A model that cannot distinguish between an auto-deduction that accurately reflects a compliant meal break and an auto-deduction that masks a missed meal break is fundamentally incapable of measuring damages attributable to actual violations.
Third, the model ignores facility-level and show-unit-level variation that has been demonstrated by Dr. Makhija's comprehensive statistical analysis. Dr. Makhija's report identifies statistically significant differences across AMA's fourteen show units and seven facilities in multiple dimensions, including average shift length, overtime frequency, the ratio of studio-based to field-based production days, supervisory span of control, and employee turnover rates. These differences are material to the question of meal period, rest period, and off-the-clock compliance, because working conditions that vary across facilities and show units are reasonably expected to produce varying rates of compliance. A model that applies uniform violation rates and uniform damages assumptions across all facilities and show units—without any adjustment for these demonstrated differences—cannot reliably measure damages on a class-wide basis.
Fourth, the rest period and off-the-clock components of Dr. Rennick's model rely entirely on anecdotal evidence from three named plaintiffs—Fuentes, Halloran, and Padilla. The declarations of three individuals, each of whom worked in a different division at a different facility under different supervisors, do not constitute "common proof" for a putative class of approximately 1,850 members spanning fourteen show units and seven production facilities. Common proof requires evidence that is applicable to and probative of the claims of the class as a whole—not evidence that is specific to the idiosyncratic experiences of a handful of class representatives.
32. Even if the Court were to certify the meal period auto-deduction claim as a common question subject to class-wide resolution—a conclusion that AMA opposes on the grounds set forth in its Opposition to Plaintiffs' Motion for Class Certification—Dr. Rennick's damages model cannot reliably measure the damages flowing from that claim. The auto-deduction is common evidence in the sense that the same timekeeping mechanism was applied across all facilities; but the question of whether any individual employee actually received a compliant meal break on any given shift is not answered by the auto-deduction data. To determine actual damages, one would need to determine, for each employee on each shift, whether the employee actually took a compliant thirty-minute break or was instead denied that break. This is an inherently individualized inquiry. Dr. Rennick's model avoids this inquiry by assuming the answer—missed meal—for every single shift. That assumption is not a "methodology" for measuring damages; it is a predetermined conclusion imposed upon the data. Individual damages calculations would be required to determine the actual extent of meal period violations and the actual damages owed to each class member.
X. CONCLUSION
33. In summary, my opinions are as follows:
(1) Dr. Rennick's damages model is unreliable because it assumes that every shift on which the NovaPay Solutions TimeTrack Pro auto-deduction was applied constitutes a "missed" meal period for which premium pay is owed. This assumption is contradicted by the actual Missed Meal Attestation data, which shows that at the four facilities where the attestation feature was activated, approximately 96% to 98% of employees did not report a missed meal period on any given shift. The most reasonable inference from this data is that those employees took compliant meal breaks.
(2) Dr. Rennick's rest period and off-the-clock damages assumptions are speculative, unsupported by any systematic data, and not generalizable across the putative class. The 50% rest period violation rate is drawn from the anecdotal declarations of three named plaintiffs and has no empirical basis. The 37.5-minute off-the-clock assumption is a simple midpoint of allegations, not an analytical finding.
(3) Dr. Rennick's PAGA penalty calculation of $12.2 million ignores the well-established judicial discretion to reduce PAGA penalties under California Labor Code section 2699(e)(2), particularly in circumstances—such as those present here—where the employer maintained written compliance policies and took corrective action.
(4) An alternative damages calculation, using actual attestation data, conservative facility-level estimates, and appropriate adjustments for underreporting, yields aggregate damages of approximately $5.8 million—substantially less than Dr. Rennick's $38.6 million figure.
(5) Dr. Rennick's model does not constitute a reliable "common methodology" for class-wide damages within the meaning of Granite Harbor Partners LLC v. Behrend (2013) 569 U.S. 27 and applicable California class certification principles. The model is built on unsupported assumptions, ignores demonstrated facility-level and show-unit-level variation, and cannot distinguish between employees who received compliant breaks and those who did not.
34. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
35. Executed this 14th day of June, 2023, in Los Angeles, California.
________________________________________
Dr. Catherine Lindstrom, Ph.D. Principal and Senior Economist Hargrove Analytics Inc. 515 S. Figueroa Street, Suite 1100 Los Angeles, California 90071
Exhibit 1: Expert Report of Dr. Catherine Lindstrom, dated June 9, 2023 (referenced herein; maintained in Compendium of Exhibits in Support of Defendant's Opposition to Plaintiffs' Motion for Class Certification, filed concurrently herewith as Document 87).
MARISOL FUENTES, DEREK HALLORAN, and YESENIA PADILLA, individually and on behalf of all others similarly situated,
(Consolidated with 22STCV39501)
Plaintiffs,
Hon. Raymond Escobedo, Dept. 34
v.
DECLARATION OF DR. CATHERINE LINDSTROM IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
AURELIUS MEDIA AMERICAS INC., a Delaware corporation; and DOES 1 through 50, inclusive,
Date: July 12, 2023
Defendants.
Dept.: 34
| Damages Category | Dr. Rennick's Estimate | Dr. Lindstrom's Alternative Estimate |
| Meal Period Premiums | ~$16.3 million | ~$3.4 million |
| Rest Period Premiums | ~$8.4 million | $0 (excluded — no reliable common data) |
| Off-the-Clock Overtime | ~$12.2 million | $0 (excluded — inherently individualized) |
| Wage Statement Penalties | Included in total | ~$0.8 million |
| PAGA Penalties | ~$12.2 million | ~$0.5–$1.0 million |
| Miscellaneous (waiting time, minimum wage derivative) | Included in total | ~$0.6 million |
| Total | ~$38.6 million | ~$5.8 million |