CALDERWOOD & HARKNESS LLP Attorneys at Law
777 South Flower Street, Suite 4200 Los Angeles, California 90017 Telephone: (213) 555-7200
March 1, 2023
VIA EMAIL AND OVERNIGHT DELIVERY
Dr. Rajesh Makhija Workforce Dynamics Consulting LLC 444 Castro Street, Suite 800 Mountain View, CA 94041
Re: Expert Retention — Fuentes v. Aurelius Media Americas Inc., Superior Court of the State of California, County of Los Angeles, Lead Case No. 22STCV38214 (Consolidated with 22STCV39501)
C&H Matter No.: 1017-00004
Dear Dr. Makhija:
1. Introduction and Purpose of Engagement
This letter confirms the retention of Workforce Dynamics Consulting LLC ("Workforce Dynamics") and you personally, Dr. Rajesh Makhija, as an expert witness on behalf of our client, Aurelius Media Americas Inc. ("AMA"), a Delaware corporation qualified to do business in California, with its principal office located at 8500 Sunset Boulevard, Suite 1400, West Hollywood, California 90069. AMA is a wholly owned subsidiary of Aurelius Global Media Group PLC, a public limited company organized under the laws of England and Wales. AMA is represented in the above-referenced litigation by the law firm of Calderwood & Harkness LLP ("C&H").
This engagement is in connection with the putative wage-and-hour class action referenced above, Fuentes v. Aurelius Media Americas Inc., Lead Case No. 22STCV38214, consolidated with Case No. 22STCV39501, currently pending in the Superior Court of the State of California, County of Los Angeles. In this action, approximately 1,850 current and former non-exempt, hourly employees of AMA allege meal-and-rest-break violations, off-the-clock work, and related violations of the California Labor Code, including claims under the Private Attorneys General Act ("PAGA"), Labor Code § 2698 et seq. The named plaintiffs in the consolidated action are Marisol Fuentes, Derek Halloran, and Yesenia Padilla (collectively, "Named Plaintiffs" or "Plaintiffs").
Plaintiffs are represented by Castellano Byrne & Salas LLP, serving as lead class counsel (lead attorneys: Marco Castellano and Diane Salas), and Veltrano Employment Law Group PC (Sandra Higuera), serving as PAGA co-counsel. The case is assigned to the Honorable Raymond Escobedo, Department 34, Los Angeles Superior Court — Central District.
We are retaining your services specifically because of your recognized expertise in industrial and organizational analysis, including workforce management practices, timekeeping systems, and the variability of working conditions across multi-site operations. Your expertise is sought principally for AMA's opposition to Plaintiffs' anticipated motion for class certification, which Plaintiffs are expected to file on or about April 14, 2023. The terms and conditions of this engagement are set forth below.
2. Scope of Engagement
Dr. Makhija is retained to analyze and opine on the following issues, each of which is critical to AMA's defense against class certification. We anticipate that your analysis and opinions will be presented in the form of a written expert report, a declaration suitable for filing with the Court, and potentially live testimony at the class certification hearing.
2(a). Variability of Working Conditions Across AMA's California Operations
You are asked to analyze the degree of variability in working conditions, scheduling practices, meal and rest break implementation, and supervisory discretion across AMA's seven California production facilities, which are identified as follows:
1. 8500 Sunset Boulevard, Suite 1400, West Hollywood, CA 90069 — Corporate Headquarters and Post-Production
2. 4024 Penmark Strategy Partners Avenue, Studio City, CA 91604 — Stage A & B, Unscripted Programming
3. 15301 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91403 — Digital Content Division
4. 3800 West Alameda Avenue, Burbank, CA 91505 — Live Events and Field Production
5. 1438 North Gower Street, Hollywood, CA 90028 — Scripted Development
6. 2120 Colorado Avenue, Santa Monica, CA 90404 — E-Commerce Studio
7. 888 North Sepulveda Boulevard, El Segundo, CA 90245 — Post-Production Annex
In addition, your analysis should encompass the variability across AMA's fourteen (14) distinct production units that have operated under IWC Wage Order 12 (Motion Picture Industry) during the class period, which runs from November 1, 2018 through the present. These fourteen production units span a range of production types, including studio-based shows, field-based shows, live events, post-production operations, and digital content creation. We ask that you assess the meaningful differences among these production types as they relate to the day-to-day implementation of meal and rest break policies and timekeeping practices.
As part of this analysis, we specifically ask you to evaluate the differences in supervisory structures across AMA's facilities and production units. This should include, without limitation, an assessment of the role of Unit Production Managers ("UPMs") and Line Producers in day-to-day break scheduling, the extent to which break scheduling decisions are made at the facility level versus the show-unit level, and the degree of supervisory discretion exercised by individual managers and supervisors with respect to meal and rest break timing, duration, and documentation.
2(b). Typicality Analysis
You are also asked to analyze whether the experiences of the three Named Plaintiffs are typical of the putative class of approximately 1,850 individuals. The relevant background information for each Named Plaintiff is as follows:
• Marisol Fuentes: Production Coordinator in AMA's Unscripted Programming Division. Ms. Fuentes was employed by AMA from March 14, 2019 through August 5, 2022, and worked primarily at the Studio City facility (Facility 2, identified above).
• Derek Halloran: Post-Production Assistant in AMA's Digital Content Division. Mr. Halloran was employed by AMA from June 1, 2020 through November 30, 2022, and worked primarily at the Hollywood facility (Facility 5, identified above).
• Yesenia Padilla: Segment Coordinator in AMA's Live Events Division. Ms. Padilla was employed by AMA from January 10, 2018 through May 17, 2022, and worked primarily at the Burbank facility (Facility 4, identified above).
As is evident from the foregoing, each Named Plaintiff worked in a different division, at a different facility, under different supervisors, and during partially overlapping but non-identical periods of employment. We ask that you assess whether the individual experiences of these three Named Plaintiffs can reasonably be generalized to the broader putative class, or whether the significant differences in their respective positions, divisions, facilities, supervisors, and employment periods render their experiences atypical of the class as a whole.
2(c). Commonality / Predominance Opinion
Finally, we ask that you opine on whether common questions of fact regarding AMA's meal and rest break practices predominate over individual questions, or whether individualized inquiry would be necessary to resolve the claims of putative class members. This opinion is central to the class certification analysis under California Code of Civil Procedure § 382 and the framework established in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 and its progeny.
Specifically, we ask that you assess whether the operation of AMA's NovaPay Solutions "TimeTrack Pro" timekeeping system — including the automatic thirty (30)-minute meal period deduction feature — creates a sufficiently common question to support class-wide adjudication, or whether the significant variation in how meal and rest break policies are implemented across AMA's facilities and show units renders individualized inquiry predominant. In conducting this analysis, please note that AMA's TimeTrack Pro system includes a "Missed Meal Attestation" feature that was activated at four (4) of the seven (7) facilities — specifically, Facilities 1 (West Hollywood HQ), 3 (Sherman Oaks), 5 (Hollywood), and 6 (Santa Monica) — but was not activated at three (3) facilities — specifically, Facilities 2 (Studio City), 4 (Burbank), and 7 (El Segundo). This disparity in system configuration across facilities is directly relevant to the commonality and predominance analysis and should be addressed in your opinion.
3. Compensation
Workforce Dynamics Consulting LLC will be compensated at the following hourly rates for work performed in connection with this engagement:
All invoices should be submitted on a monthly basis to Calderwood & Harkness LLP, addressed to the attention of Devon Archer, Senior Associate, at the address set forth above, with copies to Bernard Crawford, Partner (Billing Attorney). Each invoice must include a detailed description of the services performed during the billing period, the hours worked by each individual who performed services, and an itemization of all expenses incurred.
Based on our current understanding of the scope of work required, we estimate total fees for the engagement in the range of $140,000 to $180,000. This estimate covers the preparation of the expert report, the expert declaration in support of AMA's opposition to class certification, and preparation for and testimony at the class certification hearing before the Court. This estimate is, of course, subject to adjustment based on the actual scope of data analysis required, the volume of deposition testimony and other materials to be reviewed, and whether additional preparation for mediation, trial, or other proceedings becomes necessary during the course of the engagement. We will discuss any material changes to this estimate with you in advance to ensure mutual agreement on the scope and cost of additional work.
AMA will reimburse Workforce Dynamics for reasonable out-of-pocket expenses incurred in connection with this engagement, including but not limited to travel expenses, printing and materials costs, and data processing costs. Pre-approval from C&H is required for any individual expense item exceeding $2,500.00. Expense reimbursement requests should be documented with receipts and included in your monthly invoices.
4. Materials to Be Provided
C&H will provide the following materials for Dr. Makhija's review and analysis in connection with this engagement. These materials will be produced on a rolling basis as they become available, and all materials are subject to the Stipulated Protective Order entered by the Court in this matter on February 15, 2023 (discussed further in Section 7 below):
1. AMA organizational charts and staffing records for all seven California production facilities, covering the class period (November 1, 2018 through the present).
2. TimeTrack Pro timekeeping data for the class period (November 1, 2018 through the present), as extracted from NovaPay Solutions Inc. (2200 Powell Street, Suite 600, Emeryville, CA 94608). The key custodian for this data is Marcus Yee, Director of Client Data Services at NovaPay Solutions. This data set will include punch-in and punch-out records, meal period deduction records, and Missed Meal Attestation entries (where applicable) for all putative class members during the class period.
3. Production schedules, call sheets, and daily production logs for representative show units across all fourteen (14) active show units operating during the class period. C&H will work with AMA to identify a representative sample of production documents that capture the variability in scheduling practices and working conditions across production types and facilities.
4. AMA's written Meal and Rest Break Policy (revised January 2019) and the AMA Employee Handbook (revised March 2021). These documents set forth AMA's official policies regarding meal and rest break scheduling, duration, and documentation.
5. AMA training materials related to timekeeping and meal/rest break compliance, to the extent such materials exist. This may include supervisor training presentations, employee onboarding materials, and any written guidance distributed to UPMs and Line Producers regarding break scheduling.
6. Missed Meal Attestation feature activation and deactivation logs for each of the seven California facilities, as maintained in the TimeTrack Pro system. These logs will document when the Missed Meal Attestation feature was activated or deactivated at each facility and the reasons, if documented, for any configuration changes.
7. Deposition transcripts of the Named Plaintiffs and AMA witnesses, as they become available. Depositions in this matter are currently scheduled for the April–May 2023 timeframe. C&H will provide transcripts on a rolling basis as they are finalized.
8. Plaintiffs' class certification motion and all supporting declarations and exhibits, when filed. We anticipate that Plaintiffs will file their motion for class certification on or about April 14, 2023.
9. Plaintiffs' expert report authored by Dr. Howard Rennick of Pinnacle Economic Consulting Group LLC (3000 El Camino Real, Suite 500, Palo Alto, CA 94306), when produced. We anticipate that Dr. Rennick's report will be served on or about April 28, 2023.
10. AMA's Acceptable Use and Confidentiality Policy (March 2021 revision), which governs the handling and dissemination of company-confidential data and materials.
11. Any additional documents identified as relevant during the course of analysis. C&H will coordinate with you to identify any supplemental materials that may be needed as your analysis progresses.
We will endeavor to provide the initial tranche of materials — including organizational charts, timekeeping data, the Meal and Rest Break Policy, and the Employee Handbook — within ten (10) business days of your acceptance of this engagement. Subsequent materials will be produced as they become available, and we will keep you informed of anticipated production dates.
5. Deliverables and Timeline
The following table sets forth the key deliverables and associated due dates for this engagement:
The draft expert report will be submitted to C&H for review and comment. C&H will provide substantive feedback on the draft report within seven (7) business days of receipt. The final expert report should incorporate C&H's feedback and any additional data analysis identified during the review process. We understand that the scope of the final report may evolve as additional materials, including deposition transcripts and Plaintiffs' expert report, become available.
The expert declaration will be prepared in a format suitable for filing with the Superior Court of the State of California, consistent with the requirements of California Code of Civil Procedure § 2015.5. C&H will provide a template declaration for your review and will work with you to finalize the declaration prior to the filing deadline.
Please note that if the case proceeds to mediation (currently anticipated for August–September 2023) or to trial, additional preparation and testimony may be required. The fees and scope of any such additional work will be agreed upon separately at that time, and any supplemental engagement terms will be memorialized in writing.
6. Coordination with Other Defense Experts
You should be aware that C&H has also retained Dr. Catherine Lindstrom of Hargrove Analytics Inc. (515 South Figueroa Street, Suite 1100, Los Angeles, CA 90071) as an economics and damages expert in this matter. Dr. Lindstrom's engagement focuses on rebutting Plaintiffs' damages model and constructing an alternative damages calculation for AMA. Her analysis will address the quantum of damages, if any, attributable to the alleged meal-and-rest-break violations, as well as the appropriateness of Plaintiffs' proposed methodology for calculating class-wide damages.
Because your analysis and Dr. Lindstrom's analysis may draw upon overlapping data sets — in particular, the TimeTrack Pro timekeeping data — C&H may ask you and Dr. Lindstrom to coordinate on certain aspects of data analysis to ensure consistency in your respective analyses. For example, it will be important that both experts are working from the same underlying timekeeping data set and that any data cleaning or normalization decisions are applied consistently across both analyses.
To maintain the integrity and privilege of all communications, any communications between you and Dr. Lindstrom regarding this matter should be coordinated through Devon Archer at C&H. Please do not communicate directly with Dr. Lindstrom or her team regarding this matter without first consulting with Mr. Archer.
7. Confidentiality
All materials provided to Workforce Dynamics Consulting LLC in connection with this engagement are confidential and are subject to the Stipulated Protective Order entered by the Court in this matter on February 15, 2023 (the "Protective Order"). A copy of the Protective Order will be provided to you with the initial tranche of materials.
Materials designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" under the Protective Order must be treated in strict accordance with the terms and conditions of that order. You are responsible for ensuring that all Workforce Dynamics personnel who will have access to materials in this matter are made aware of and comply with the requirements of the Protective Order. C&H will provide a form of acknowledgment for execution by each Workforce Dynamics employee or contractor who will have access to protected materials.
Dr. Makhija and all Workforce Dynamics personnel working on this matter may not disclose any materials, data, analysis, work product, or other information relating to this engagement to any third party without the prior written consent of Calderwood & Harkness LLP. This prohibition extends to any disclosure in publications, presentations, academic papers, or marketing materials of Workforce Dynamics Consulting LLC.
Dr. Makhija agrees to store all materials received in connection with this engagement in a secure location, both physical and electronic, and to implement reasonable safeguards to prevent unauthorized access, disclosure, or loss. Upon completion of the engagement, or upon C&H's request at any time, all materials — including all copies, notes, working papers, and electronically stored information — must be returned to C&H or destroyed in accordance with C&H's instructions. Workforce Dynamics will provide written confirmation of the return or destruction of all materials upon request.
The confidentiality obligations set forth in this Section 7 survive the termination of this engagement, regardless of the reason for termination.
8. Independence and Disclosure
Dr. Makhija confirms that he has no prior professional or personal relationship with any party, counsel, or witness in this matter that would impair his independence or objectivity as an expert witness. Dr. Makhija further confirms that neither he nor Workforce Dynamics Consulting LLC has performed any work for Aurelius Global Media Group PLC, Aurelius Media Americas Inc., Castellano Byrne & Salas LLP, Veltrano Employment Law Group PC, or any Named Plaintiff (Marisol Fuentes, Derek Halloran, or Yesenia Padilla) within the past five (5) years.
Dr. Makhija understands that his credibility and the persuasiveness of his opinions depend, in significant part, on his independence and objectivity, and agrees to maintain that independence throughout the engagement. If at any time during the course of this engagement Dr. Makhija identifies any potential conflict of interest, prior relationship, or other circumstance that could call into question his independence or objectivity, he will immediately notify Devon Archer at C&H so that the situation can be evaluated and addressed.
9. Termination
Either party may terminate this engagement upon thirty (30) days' written notice to the other party. Written notice of termination should be directed to the contact persons identified in Section 10 below.
Upon termination, Workforce Dynamics Consulting LLC will be compensated for all work performed and expenses properly incurred through the effective date of termination, in accordance with the rates and terms set forth in Section 3 above. Final invoices for work performed through the date of termination should be submitted within thirty (30) days of the effective date of termination.
Upon termination, all materials received from C&H or AMA must be returned or destroyed in accordance with the provisions of Section 7 above.
10. Contact Information
The primary contacts at C&H for this engagement are as follows:
Primary Contact:
Devon Archer, Senior Associate Direct Telephone: (213) 555-7238
Email: darcher@calderwoodharkness.com
Secondary Contact:
Renata Vasquez, Partner (Responsible Attorney) Direct Telephone: (213) 555-7200
Email: rvasquez@calderwoodharkness.com
Billing Inquiries:
Bernard Crawford, Partner (Billing Attorney) Direct Telephone: (213) 555-7214
Email: bcrawford@calderwoodharkness.com
All substantive communications regarding the engagement, including questions about scope, materials, deliverables, and coordination with other experts, should be directed to Devon Archer in the first instance. Ms. Vasquez is available for escalation on strategic matters as needed. All billing inquiries, including questions about invoice processing and expense reimbursement, should be directed to Mr. Crawford.
11. Acceptance
If the foregoing accurately reflects our mutual understanding of the terms and conditions of this engagement, please sign and return a copy of this letter to my attention at the address above, or by email to darcher@calderwoodharkness.com. Upon receipt of your signed copy, we will begin the process of assembling and transmitting the initial tranche of materials for your review.
We look forward to working with you on this matter and are confident that your expertise will be invaluable to AMA's defense. Please do not hesitate to contact me if you have any questions or wish to discuss any aspect of this engagement.
Sincerely,
CALDERWOOD & HARKNESS LLP
By: ________
Devon Archer Senior Associate
ACCEPTANCE OF ENGAGEMENT
By signing below, the undersigned confirms acceptance of the terms and conditions of this Expert Retention Letter, dated March 1, 2023, and agrees to perform the services described herein in accordance with the terms set forth above.
ACCEPTED AND AGREED:
WORKFORCE DYNAMICS CONSULTING LLC
By: ________
Name: Dr. Rajesh Makhija
Title: Managing Principal
Date: ________
cc: Renata Vasquez, Partner, Calderwood & Harkness LLP Bernard Crawford, Partner, Calderwood & Harkness LLP Gregory Tanaka, VP Legal & Compliance, Aurelius Media Americas Inc. (per engagement protocol)
| Personnel | Hourly Rate |
| Dr. Rajesh Makhija (Expert) | $650.00 |
| Senior Research Analyst | $350.00 |
| Research Analyst | $225.00 |
| Deliverable | Due Date |
| Draft Expert Report | May 5, 2023 |
| Final Expert Report | May 19, 2023 |
| Expert Declaration in Support of AMA's Opposition to Class Certification | June 14, 2023 |
| Availability for Hearing Testimony | Week of July 28, 2023 (hearing before Hon. Raymond Escobedo, Dept. 34) |