1017-00004 · Entities. Aurelius Global Media Group · Experts

review-draft-lindstrom-report.docx DOCUMENT Finance & Banking

82 / 150 ← → ✕

Contract analysis Extract to table

CALDERWOOD & HARKNESS LLP 333 South Grand Avenue, Suite 4200 Los Angeles, California 90071

CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGED / ATTORNEY WORK PRODUCT

MEMORANDUM

TO: Renata Vasquez

FROM: Devon Archer and Nadia Petrov

DATE: June 2, 2023

RE: Review and Comment on Draft Rebuttal Expert Report of Dr. Catherine Lindstrom — Fuentes v. Aurelius Media Americas Inc., LASC Case No. 22STCV38214 (Consolidated) — C&H Matter No. 1017-00004

I. Purpose and Executive Summary

This memorandum provides our detailed comments and recommendations on Dr. Catherine Lindstrom's draft rebuttal expert report, which we received on May 26, 2023, from Hargrove Analytics Inc. (515 S. Figueroa Street, Suite 1100, Los Angeles, CA 90071). The draft report was prepared at our direction and responds to the expert report of Dr. Howard Rennick of Pinnacle Economic Consulting Group LLC, dated April 28, 2023, which was served on behalf of Plaintiffs in connection with their motion for class certification. Dr. Rennick's report calculated aggregate damages of approximately $38.6 million across all claim categories, including $12.2 million in penalties under the Private Attorneys General Act ("PAGA"), California Labor Code § 2698, et seq.

Dr. Lindstrom's draft report concludes that aggregate damages attributable to the claims at issue are approximately $5.8 million, excluding PAGA penalties, which she opines are subject to significant judicial reduction under California Labor Code § 2699(e)(2). This figure represents an approximately 85% reduction from Rennick's calculation and, in our assessment, is grounded in a far more rigorous and empirically supportable methodology.

As Renata is aware, the final version of Dr. Lindstrom's expert report is due on June 9, 2023, and the expert declaration for Aurelius Media Americas Inc.'s ("AMA") opposition to class certification must be filed on June 14, 2023, with the full opposition brief due June 16, 2023. Given these deadlines, it is imperative that we communicate our comments to Dr. Lindstrom promptly so that the revised draft can be turned around with sufficient time for our final review.

Our overall assessment of the draft is favorable: the report is strong on core methodology and provides a rigorous, data-driven alternative to Dr. Rennick's damages model. However, the draft requires refinement in several key areas to maximize its persuasive impact and to withstand the critiques that Plaintiffs' counsel will inevitably raise in their reply or at any Daubert-type challenge. Specifically, we have identified areas where additional justification, sensitivity analysis, visual exhibits, case citations, and presentational improvements are needed. Our specific comments are organized below by section of the draft report, followed by a discussion of anticipated Plaintiffs' critiques and our recommended responses, coordination issues with Dr. Makhija's companion report, and a timeline for completion.

II. Summary of Dr. Lindstrom's Draft Methodology and Conclusions

We begin with a section-by-section summary of Dr. Lindstrom's principal findings and our preliminary comments on each. These comments are elaborated in greater detail in Section III below.

A. Alternative Damages Model — First Meal Period Premiums

Dr. Lindstrom's alternative damages model for first meal period premiums constitutes the core of her rebuttal and represents the most significant area of divergence from Dr. Rennick's calculation. Dr. Rennick's model is premised on the central assumption that every auto-deducted meal period — i.e., every instance in which the NovaPay Solutions TimeTrack Pro system automatically deducted a 30-minute unpaid meal period from an employee's recorded hours — constitutes a "missed" meal period for which a one-hour premium is owed under California Labor Code § 226.7. Under this assumption, Dr. Rennick calculates first meal period premiums of approximately $16.3 million across the class.

Dr. Lindstrom rejects this assumption as fundamentally flawed. Her alternative approach uses actual Missed Meal Attestation data from the NovaPay Solutions TimeTrack Pro system at the four AMA facilities where the attestation feature was activated during the relevant period. These facilities are:

• Facility 1 — West Hollywood Headquarters (8900 Sunset Boulevard, West Hollywood, CA)

• Facility 3 — Sherman Oaks (14400 Ventura Boulevard, Sherman Oaks, CA)

• Facility 5 — Hollywood (6500 Sunset Boulevard, Hollywood, CA)

• Facility 6 — Santa Monica (2600 Colorado Avenue, Santa Monica, CA)

At each of these facilities, the TimeTrack Pro system included a Missed Meal Attestation feature that allowed employees to affirmatively report, at the time of clock-out, that they had missed or been denied a timely meal period during their shift. Dr. Lindstrom uses the attestation data as a direct measure of the actual missed-meal rate at these facilities. The attestation usage rates were as follows:

For the three facilities where the attestation feature was not activated during the relevant period — Facility 2 (Studio City), Facility 4 (Burbank), and Facility 7 (El Segundo) — Dr. Lindstrom does not assume the same 3.0% rate. Rather, she applies a higher assumed violation rate of 8.5%, based on a conservative upward adjustment designed to account for the possibility that the absence of an attestation mechanism at these facilities may have suppressed reporting of actual missed meal periods. This 8.5% rate represents approximately a 2.5× multiplier over the blended attestation rate at the four attestation-equipped facilities.

Using these facility-level violation rates, Dr. Lindstrom calculates aggregate first meal period premiums of approximately $3.4 million — compared to Dr. Rennick's $16.3 million.

Comment: The 8.5% assumed rate for the non-attestation facilities is the single most important — and most vulnerable — assumption in the draft. While the upward adjustment is conceptually reasonable and reflects appropriate conservatism, the basis for the 2.5× uplift factor is not adequately explained in the current draft. Dr. Lindstrom should provide a more rigorous justification for this multiplier and explain why it represents a conservative estimate. We elaborate on our specific recommendations for strengthening this aspect of the report in Section III.A below.

B. Rest Period Premiums

Dr. Lindstrom addresses the rest period premium claims in the context of the broader damages analysis, noting that the Court has not yet ruled on class certification (the report was drafted in advance of the August 11, 2023 hearing date) and that the extent to which rest period claims will be certified as a class claim remains uncertain. Nevertheless, Dr. Lindstrom addresses these claims to the extent they may be included in any certified class.

Dr. Lindstrom's principal critique of Dr. Rennick's rest period damages calculation is that his assumed 50% rest period violation rate is entirely unsupported by the evidence. Dr. Rennick derived this 50% figure solely from the declarations of three named plaintiffs — Maria Fuentes, Timothy Halloran, and Daniela Padilla — each of whom stated that they were "frequently" denied rest periods or that rest periods were "rarely" provided during their shifts. Dr. Lindstrom correctly observes that the experiences of three named plaintiffs cannot be generalized to the approximately 1,850 putative class members working across 14 show units and 7 facilities, particularly in the absence of any survey data, time records, or other empirical evidence.

Dr. Lindstrom further notes that rest periods are paid time under California law and, as such, are not separately recorded in the TimeTrack Pro system. Because there is no timekeeping data reflecting when rest periods were or were not taken, any class-wide calculation of rest period violations is inherently speculative and necessarily requires individualized inquiry into each employee's experience on each shift.

Consistent with this analysis, Dr. Lindstrom declines to calculate a specific rest period damages figure in the draft. Instead, she opines that rest period claims are not susceptible to common proof and that any damages calculation would require individualized inquiry that is inconsistent with class treatment.

Comment: While this approach is conceptually sound and is consistent with our class certification strategy, we believe the report would be more useful — particularly in the context of mediation and any settlement discussions — if Dr. Lindstrom were to provide an illustrative range of rest period damages using several hypothetical violation rates. A flat refusal to estimate rest period damages, while defensible, may be perceived by the Court or the mediator as evasive. We discuss this recommendation in greater detail in Section III.D below.

C. Off-the-Clock Overtime

Dr. Lindstrom similarly declines to calculate class-wide off-the-clock overtime damages, opining that these claims are inherently individualized and not amenable to class-wide computation. The draft provides a detailed critique of Dr. Rennick's methodology on this point.

Dr. Rennick's off-the-clock damages model assumes that every class member worked an average of 37.5 minutes of off-the-clock time before each shift — a figure derived from the midpoint of the 30-to-45-minute range alleged in the operative complaint and in the named plaintiff declarations. Dr. Lindstrom correctly observes that this assumption has no empirical basis whatsoever. There is no timekeeping data to support a uniform 37.5-minute off-the-clock work period, no survey or sampling data, and no documentary evidence such as emails, call sheets, or production schedules that would substantiate this figure across the class.

More significantly, Dr. Lindstrom identifies an affirmative basis for rejecting the uniform pre-shift off-the-clock assumption. She observes that the TimeTrack Pro punch-in data shows significant variation in the time at which class members punched in relative to their scheduled call times. Some employees consistently punched in at or very near their scheduled call time, suggesting that they were not performing significant off-the-clock work before their shifts. Others punched in 5 to 15 minutes before their scheduled call time, which may reflect modest pre-shift preparation but not the 30- to 45-minute window alleged by Plaintiffs. Still other employees punched in after their scheduled call time, indicating late arrivals rather than early off-the-clock work. This variation across the class fundamentally undermines the assumption of a uniform 37.5-minute off-the-clock period applicable to all class members on all shifts.

Comment: This punch-in time analysis is one of the strongest elements of the draft and should be expanded and presented with greater visual impact. We recommend that Dr. Lindstrom prepare a histogram or distribution chart showing the spread of punch-in times relative to scheduled call times, broken out by facility and, if possible, by show unit or show type. This would serve as a compelling visual exhibit for both the certification opposition and any future mediation. We discuss this recommendation in greater detail in Section III.C below.

D. Wage Statement Penalties (Cal. Lab. Code § 226)

Dr. Lindstrom calculates wage statement penalties under California Labor Code § 226 as derivative of the meal period claim. Because she finds a substantially lower meal period violation rate than Dr. Rennick, the resulting wage statement penalty calculation is correspondingly lower. Dr. Lindstrom's estimate of aggregate wage statement penalties is approximately $0.8 million, compared to Dr. Rennick's $1.5 million.

Dr. Lindstrom's calculation correctly applies the statutory cap structure under § 226(e): an initial violation penalty of $50 per employee, a subsequent violation penalty of $100 per employee per pay period, and an aggregate cap of $4,000 per employee. The calculation also correctly applies the lower violation rate derived from the attestation data and the assumed non-attestation facility rate.

Comment: This section of the draft is adequate and requires only minor clean-up for clarity and consistency with the formatting of other sections. No substantive revisions are needed.

E. PAGA Penalties

Dr. Lindstrom addresses PAGA penalties separately from the compensatory damages categories, opining that PAGA penalties are subject to significant judicial reduction under California Labor Code § 2699(e)(2). Under that provision, a court has broad discretion to reduce PAGA penalties that would be "unjust, arbitrary and oppressive, or confiscatory," taking into account factors including the employer's good-faith efforts to comply with the law.

Dr. Lindstrom notes that Dr. Rennick's PAGA penalty calculation of $12.2 million assumes the imposition of maximum statutory penalties — $100 for the initial violation and $200 for each subsequent violation, per pay period, per aggrieved employee — across all violation categories for all aggrieved employees, with no reduction of any kind. This approach treats the statutory maximum as the presumptive award, which Dr. Lindstrom correctly observes is inconsistent with the exercise of judicial discretion contemplated by the statute.

Dr. Lindstrom estimates a "reasonable" PAGA penalty range of $500,000 to $1.0 million, based on the following factors: (1) the lower actual violation rate established by the attestation data; (2) AMA's good-faith compliance efforts, including the adoption of written meal and rest period policies, the implementation of the NovaPay Solutions TimeTrack Pro timekeeping system, and the activation of the Missed Meal Attestation feature; and (3) AMA's corrective actions during the class period, specifically the activation of the attestation feature at all seven facilities in December 2022 and the correction of the auto-deduction threshold from 6 hours to 5 hours, also in December 2022.

Comment: This section would benefit significantly from the inclusion of specific California court decisions in which PAGA penalties were reduced by 75–90% from the statutory maximum. The current draft references the statutory reduction provision but does not cite any case law in support of the proposition that courts routinely exercise this discretion to impose penalties far below the maximum. Devon will compile a list of relevant published and unpublished decisions and provide them to Dr. Lindstrom for inclusion. We discuss this further in Section III.E below.

F. Total Alternative Damages

Dr. Lindstrom's total alternative damages figure is approximately $5.8 million, comprising the following components:

This represents a reduction of approximately 85% from Dr. Rennick's damages figure. While a portion of this difference is attributable to the fact that Dr. Lindstrom declines to calculate rest period and off-the-clock damages (as discussed above), the majority of the reduction stems from her use of actual attestation data and a more defensible assumed violation rate for non-attestation facilities, combined with her application of a reasonable PAGA penalty reduction.

Comment: The summary comparison table currently appears in Section VII of the draft report, where it is buried deep in the analysis. We strongly recommend that this table be moved to the front of the report — either Section I (Introduction) or Section II (Summary of Opinions) — so that the reader immediately understands the magnitude of the difference between the two experts' conclusions and the methodological reasons for that difference. A side-by-side comparison of the type set forth above, including both the dollar difference and a brief notation of the methodological basis for each difference, would be highly effective. This is discussed further in Section III.F below.

III. Specific Comments and Recommended Revisions

This section sets forth our detailed comments and recommended revisions, organized by topic. We have prioritized these comments roughly in order of importance to the overall persuasiveness and defensibility of the report.

A. Strengthen the Foundation for the 8.5% Violation Rate at Non-Attestation Facilities

As noted above, the 8.5% assumed violation rate for Facilities 2 (Studio City), 4 (Burbank), and 7 (El Segundo) is the most vulnerable assumption in the draft report. These three facilities account for a significant share of the total class member work shifts, and Plaintiffs will almost certainly attack the 8.5% figure as arbitrary and as materially underestimating the actual violation rate at facilities where employees had no available mechanism to report missed meal periods.

Plaintiffs' argument will be straightforward: if the only measure of the "true" violation rate is the attestation data at four facilities, and if the attestation feature itself may have been underutilized (due to lack of training, lack of awareness, or employee reluctance to report violations), then any rate derived from that data is already understated — and applying a mere 2.5× uplift to an already-understated base rate produces a figure that is still far below the true violation rate. To withstand this critique, the 8.5% rate must be better justified.

We recommend three complementary approaches:

1. Provide a More Rigorous Basis for the 2.5× Uplift Factor. The current draft states that the 8.5% rate reflects a "conservative upward adjustment" but does not explain why 2.5× is the appropriate multiplier. Dr. Lindstrom should consider referencing published academic literature or government studies on underreporting of workplace safety incidents, wage-and-hour violations, or compliance issues when formal reporting mechanisms are absent. For example, OSHA studies have documented that workplace injury reporting rates increase significantly when electronic reporting systems are implemented, with reporting rates at non-electronic facilities typically ranging from 1.5× to 3.5× lower than at facilities with electronic reporting. If Dr. Lindstrom can identify analogous literature supporting the general proposition that the absence of a formal reporting mechanism leads to underreporting on the order of 2× to 3× (which would make the 2.5× uplift a reasonable midpoint), the assumed rate will be substantially more defensible. The key is to ground the multiplier in something other than Dr. Lindstrom's professional judgment alone, even though expert judgment is a permissible basis for opinion under California Evidence Code § 801.

2. Present a Sensitivity Analysis. Rather than defending a single-point estimate of 8.5%, Dr. Lindstrom should present a sensitivity analysis showing total first meal period premium damages under multiple assumed violation rates for the non-attestation facilities. We recommend that the sensitivity analysis include the following rates: 8.5% (Dr. Lindstrom's base case), 15%, 25%, and 50% (Dr. Rennick's implicit assumption for rest periods, used here for comparison). This "range" approach is more defensible than a single-point estimate because it demonstrates that the expert has considered a spectrum of possibilities and allows the Court to see that even at substantially higher assumed rates for these three facilities, the total damages remain far below Dr. Rennick's figure. For example, even if the violation rate at Facilities 2, 4, and 7 is assumed to be 25% — more than eight times the blended attestation rate — the resulting total first meal period premiums would still be significantly less than Rennick's $16.3 million. This sensitivity analysis should be presented in a clear table format.

3. Cross-Reference Dr. Makhija's Variability Analysis. Dr. Lindstrom should cite the findings of Dr. Priya Makhija (Workforce Dynamics Consulting LLC, 444 Castro Street, Suite 800, Mountain View, CA 94041) regarding the operational characteristics of the three non-attestation facilities. Dr. Makhija's report, finalized on May 19, 2023, demonstrates that the three non-attestation facilities include a diverse mix of production types — studio-based production at Facility 2 (Studio City), live events coordination at Facility 4 (Burbank), and post-production operations at Facility 7 (El Segundo). Not all of these environments are equally likely to generate meal period violations. In particular, Facility 7 (El Segundo) is a post-production annex with generally regular, predictable schedules and comparatively fewer operational pressures that would cause meal period interruptions. The inclusion of Facility 7 in the non-attestation group actually makes the 8.5% assumed rate more conservative, not less, because the facility-specific rate at El Segundo is likely lower than the group average. Dr. Lindstrom should note this explicitly.

B. Address Rennick's "Every Auto-Deduction = Missed Meal" Assumption More Directly

The foundational flaw in Dr. Rennick's damages model is his assumption that every instance of an auto-deducted meal period constitutes a meal period violation for which a one-hour premium is owed. While the draft report critiques this assumption, the critique could be materially sharper and more accessible to a non-expert reader — specifically, to the judge who will be reading these reports in connection with the certification motion.

We recommend the following revisions:

1. Add a Clear, Standalone Explanatory Paragraph. The draft should include a self-contained paragraph, early in the discussion of meal period damages, that explains in plain terms what the NovaPay Solutions TimeTrack Pro auto-deduction feature actually does. The auto-deduction is a standard payroll system feature that records the 30-minute unpaid meal period that the employee took during the shift. For an employee who clocks in at 8:00 a.m. and clocks out at 5:00 p.m. and takes a compliant 30-minute meal break, the auto-deduction accurately reflects the employee's hours worked: 9.0 hours of total elapsed time minus 0.5 hours of meal period equals 8.5 hours of recorded compensable time. Dr. Rennick treats this accurate payroll deduction as a "violation" — equating the recording of a meal period with the denial of a meal period. This is logically incoherent. The auto-deduction does not cause a missed meal; it records a taken meal. Dr. Rennick's approach would require AMA to pay a one-hour premium for every meal period that was properly provided and properly recorded — an absurd result.

2. Include a Simple Numerical Example. To make this point concrete and accessible, the report should include a brief hypothetical illustration. For example:

Employee A is scheduled for a shift from 8:00 a.m. to 5:00 p.m. Employee A takes a 30-minute meal break from 12:00 p.m. to 12:30 p.m. At clock-out, TimeTrack Pro auto-deducts 30 minutes, recording 8.5 hours of compensable time. Under Dr. Rennick's methodology, this compliant meal period would be counted as a "missed" meal, and AMA would owe Employee A a one-hour premium of approximately $27.50. This result has no basis in the facts or in the law.

This type of concrete example is far more effective than abstract methodological critique and will resonate with the Court.

3. Reference Karen Fong's Deposition Testimony. The deposition of Karen Fong, AMA's Payroll Manager, was taken on May 18, 2023. Ms. Fong testified extensively about the design and operation of the TimeTrack Pro auto-deduction feature. Her testimony supports the characterization of the auto-deduction as a payroll recording mechanism — not a violation mechanism. Specifically, Ms. Fong testified that the auto-deduction was implemented to ensure that employees were not paid for unpaid meal periods they actually took, and that the system was designed to be overridden when an employee reported a missed meal through the attestation feature. Dr. Lindstrom should cite this testimony by deposition page and line number to anchor her critique in the evidentiary record.

C. Expand the Punch-In Time Analysis

The punch-in time distribution analysis is one of the most compelling elements of the draft report. It provides direct, data-driven evidence that undermines Plaintiffs' claim that all class members uniformly worked 30 to 45 minutes of off-the-clock time before each shift. This analysis should be given greater prominence and presented with visual exhibits that will be immediately understandable to the Court.

We recommend the following:

• Histogram or Distribution Charts. Dr. Lindstrom should prepare a histogram or scatter plot for each of the seven facilities showing the distribution of punch-in times relative to scheduled call times. The x-axis should show the number of minutes before or after the scheduled call time (e.g., –30 minutes, –20 minutes, –10 minutes, 0 minutes, +10 minutes, etc.), and the y-axis should show the number or percentage of shifts falling in each time bin. This visual presentation will immediately demonstrate the wide dispersion of punch-in times and the absence of any clustering around the –30 to –45 minute range that Dr. Rennick's model assumes.

• Facility-Level and Show-Unit-Level Breakdowns. To the extent the data supports it, the analysis should also be broken out by show unit or, at minimum, by show type (studio production, field production, live events, post-production, digital content). This will reinforce Dr. Makhija's findings regarding operational variability across show units and demonstrate that the off-the-clock experience of a studio-based production assistant bears no resemblance to that of a field production coordinator, making a single class-wide calculation inappropriate.

• Summary Statistics. In addition to the visual exhibits, Dr. Lindstrom should include a table of summary statistics (mean, median, standard deviation, interquartile range) for punch-in times relative to call times, by facility and show type. These statistics will provide a quantitative basis for the Court to assess the variability of the data.

D. Add Illustrative Rest Period Damages Range

Although Dr. Lindstrom correctly declines to endorse any particular rest period violation rate or to calculate a specific rest period damages figure — and although this position is consistent with our certification opposition strategy — we believe the report would benefit from the inclusion of an illustrative damages range using several hypothetical violation rates.

The purpose of this table is not to concede that rest period violations occurred at any particular rate, but rather to provide the Court and the mediator with a sense of scale. At mediation (currently scheduled for September 2023), both the mediator and opposing counsel will want to see a "fully loaded" damages figure that includes some estimate of rest period exposure. If Dr. Lindstrom's report provides no rest period estimate at all, we will be forced to present our own informal calculations, which will carry less weight than an estimate embedded in the expert report.

We recommend that Dr. Lindstrom add a table showing what rest period damages would be under assumed violation rates of 5%, 10%, 15%, and 25%, using the following parameters:

• Average hourly rate for the class: approximately $27.50

• Class size: approximately 1,850 employees

• Total eligible shifts during the class period: approximately 612,000

• Premium per violation: one hour of pay at the employee's regular rate

The table should clearly state that these are illustrative calculations only and that Dr. Lindstrom does not endorse any particular violation rate for rest period claims. The accompanying text should reiterate Dr. Lindstrom's opinion that rest period claims require individualized proof and are not susceptible to class-wide computation.

E. Bolster PAGA Reduction Argument with Case Citations

The PAGA section of the draft report correctly identifies the statutory basis for judicial reduction of PAGA penalties under California Labor Code § 2699(e)(2), but it does not cite any specific California court decisions in which such reductions have been ordered or approved. This is a significant gap. Without case citations, Dr. Lindstrom's opinion that penalties in the range of $500,000 to $1.0 million are "reasonable" rests entirely on her professional judgment, which Plaintiffs will dismiss as self-serving advocacy rather than expert analysis.

We recommend the following:

• Cite Published and Unpublished Decisions. Devon will compile a list of California Superior Court and Court of Appeal decisions in which PAGA penalties were reduced by 75% to 90% from the statutory maximum in comparable wage-and-hour cases. This list will include both contested judgments and court-approved settlements in which the PAGA allocation was a fraction of the theoretical maximum. Devon will provide this list to Dr. Lindstrom no later than June 4, 2023.

• Reference AMA's Corrective Actions. The report should more prominently highlight AMA's remedial measures as factors supporting a significant penalty reduction. Specifically, AMA activated the Missed Meal Attestation feature at all seven facilities in December 2022 (previously it had been active at only four) and corrected the auto-deduction trigger threshold from 6 hours to 5 hours (the correct statutory threshold for the first meal period) at the same time. These actions demonstrate good-faith efforts to comply with the law and to remediate the conditions that gave rise to the claims — precisely the type of conduct that courts consider in determining whether full statutory penalties would be "unjust, arbitrary and oppressive, or confiscatory."

• Frame the Opinion Appropriately. Dr. Lindstrom should be careful to frame her PAGA analysis as an expert opinion on the "reasonable" range of penalties that a court would likely award based on the violation rate, the employer's good-faith efforts, and the outcomes in comparable cases. She should not frame it as a prediction of the Court's specific exercise of discretion, which would invite an objection that she is usurping the Court's role.

F. Presentation and Formatting

In addition to the substantive revisions discussed above, we recommend several presentational and formatting improvements:

1. Move the Summary Comparison Table to the Front of the Report. As discussed in Section II.F above, the summary comparison table — showing Dr. Lindstrom's and Dr. Rennick's respective damages calculations by claim category, with the dollar difference and a brief notation of the methodological basis — should be placed in Section I or Section II of the report, not in Section VII where it currently appears. The reader should be able to grasp the bottom-line conclusion within the first two pages.

2. Ensure All Data Sources Are Clearly Cited. Every reference to NovaPay Solutions TimeTrack Pro data should include the specific data extraction identifier assigned by NovaPay's data extraction coordinator, Marcus Yee (NovaPay Solutions, Data Services Division). Where the data was produced in litigation, the corresponding Bates numbers should also be cited. This level of specificity is essential to establishing the reliability of the data and to enabling Plaintiffs' expert to verify Dr. Lindstrom's calculations.

3. Add an Appendix of Materials Considered. Consistent with the requirements of California Evidence Code § 802 and the expectations of the Court, the report should include a comprehensive appendix listing all materials considered by Dr. Lindstrom in forming her opinions. This appendix should include all TimeTrack Pro data extractions, deposition transcripts reviewed, documents reviewed (by Bates number), and other expert reports considered (including Dr. Rennick's report and Dr. Makhija's report).

4. Include Required Expert Disclosures. The report should clearly state that Dr. Lindstrom was retained by Calderwood & Harkness LLP on behalf of AMA, disclose her hourly rate ($700 per hour), and state the total fees incurred to date. While the draft includes some of this information, it should be consolidated and presented in a single paragraph or section, consistent with standard practice for expert reports in California Superior Court.

5. Correct the Arithmetic Discrepancy in Table 4. We have identified a minor computational discrepancy in Table 4 of the draft. The sum of the facility-level meal period premiums set forth in the table does not precisely equal the stated total of $3.4 million. The discrepancy appears to be a rounding issue of approximately $12,000 — the sum of the individual facility figures totals approximately $3,412,000, while the stated aggregate is $3,400,000. This must be corrected before the report is finalized. While the discrepancy is immaterial to the overall conclusion, Plaintiffs' counsel will seize on any arithmetic error, however small, to attack the credibility of the report and its author.

IV. Anticipated Plaintiffs' Critiques and Recommended Responses

Based on our review of Plaintiffs' briefing to date, the Rennick report, and the arguments advanced at the initial case management conference and subsequent hearings, we anticipate the following critiques of Dr. Lindstrom's report and recommend the following responses:

A. "Lindstrom's Model Underestimates Violations Because It Relies on Attestation Data From a System That Employees Didn't Know About"

Expected Argument: Plaintiffs will point to the very low attestation usage rates (ranging from 1.8% to 4.1%) and will argue that these rates are unreliable indicators of the true missed-meal rate because employees were not adequately informed about the attestation feature. Plaintiffs have already obtained discovery indicating that AMA did not conduct formal training sessions on the attestation feature and that the feature was accessible only through a specific sequence of prompts on the TimeTrack Pro terminal that employees could easily overlook. Plaintiffs will argue that the attestation rate dramatically understates the true violation rate and that any damages model built on this data is fundamentally unreliable.

Recommended Response: Dr. Lindstrom should acknowledge this critique directly in the report rather than ignoring it or dismissing it. Transparency will enhance credibility. Specifically, the report should note:

(1) Even if the attestation feature underreports violations to some degree, Dr. Rennick's assumption of a 100% violation rate represents the opposite extreme and is equally — if not more — unsupported by the evidence. Dr. Rennick offers no empirical basis for the proposition that every auto-deducted meal period was a violation; he simply assumes it. The truth lies somewhere between Dr. Lindstrom's attestation-based rate and Dr. Rennick's assumed 100% rate.

(2) The sensitivity analysis recommended in Section III.A above directly addresses this concern by showing that even at materially higher assumed violation rates — two, three, or even eight times the attestation rate — total damages remain a fraction of Dr. Rennick's figure. The sensitivity analysis converts a potential weakness into a strength by demonstrating the robustness of Dr. Lindstrom's conclusions across a wide range of assumptions.

(3) The appropriate methodological response to potential underreporting is to apply an uplift factor to the observed data, which is precisely what Dr. Lindstrom does for Facilities 2, 4, and 7 (the non-attestation facilities). This is a well-established approach in survey research and statistical analysis. What is not appropriate is to abandon empirical data entirely and assume a 100% violation rate, which is what Dr. Rennick has done.

B. "Lindstrom Ignores the Systemic Nature of the Auto-Deduction"

Expected Argument: Plaintiffs will argue that the TimeTrack Pro auto-deduction was a company-wide system, programmed and applied identically across all seven AMA facilities, that automatically deducted meal periods without requiring employees to affirmatively confirm that they took a break. Plaintiffs will contend that this systemic auto-deduction created a common injury — the automatic loss of 30 minutes of pay whenever the system activated — that is susceptible to common proof. They will argue that Dr. Lindstrom's facility-by-facility and show-unit-by-show-unit approach improperly disaggregates a common question into individualized inquiries, thereby undermining class certification.

Recommended Response: Dr. Lindstrom should address this argument by drawing a clear distinction between the common system and the common injury. The report should note that Dr. Lindstrom does not dispute that the auto-deduction was a company-wide system. Her analysis does not turn on whether the system was applied uniformly — she accepts that it was. Rather, her analysis demonstrates that the impact of the auto-deduction varied significantly across facilities, show units, and individual employees, because the actual rate at which employees missed meal periods varied based on operational factors such as production schedules, show type, staffing levels, and managerial practices. The fact that the same payroll system was used at all facilities does not mean that the same number or percentage of employees at each facility actually missed their meal periods. A common system does not mean a common injury.

This distinction is critical for the certification opposition. If the Court accepts that the auto-deduction system creates a common question, it may certify a class on liability. But even if it does, Dr. Lindstrom's analysis demonstrates that damages cannot be calculated on a class-wide basis using a single assumed violation rate, because the actual violation rates differ materially across facilities and show units.

C. "Lindstrom's $5.8M Figure Is Artificially Low Because It Excludes Rest Period and Off-the-Clock Damages"

Expected Argument: Plaintiffs will note that Dr. Lindstrom's total damages figure of approximately $5.8 million excludes rest period premiums and off-the-clock overtime damages entirely, while Dr. Rennick's $38.6 million includes both categories. Plaintiffs will argue that any comparison of the two totals is misleading because they do not cover the same scope of claims, and that if rest period and off-the-clock damages were included, Dr. Lindstrom's total would be significantly higher.

Recommended Response: Dr. Lindstrom should clearly and prominently state that she excludes rest period and off-the-clock components from her total not because she believes these claims have zero value, but because they are not susceptible to class-wide calculation on the basis of existing data. Her exclusion reflects a methodological judgment about the limits of reliable expert analysis, not a concession that no violations occurred.

The report should include a clear caveat noting that any comparison of the two experts' aggregate damages figures must account for this difference in scope. We further believe that the inclusion of the illustrative rest period damages range table (recommended in Section III.D above) will effectively address this concern by providing the Court and the mediator with a sense of the potential magnitude of rest period exposure, without Dr. Lindstrom endorsing any specific violation rate or damages figure.

D. "Lindstrom's PAGA Reduction Is Speculative"

Expected Argument: Plaintiffs will argue that PAGA penalties are set by statute and that any reduction from the statutory maximum is within the exclusive discretion of the Court, not the province of a retained expert. They will contend that Dr. Lindstrom's opinion on a "reasonable" penalty range of $500,000 to $1.0 million is inherently speculative and constitutes improper testimony on a legal question.

Recommended Response: Dr. Lindstrom should frame her PAGA analysis carefully to avoid encroaching on legal questions. The report should present the PAGA penalty analysis as an opinion on the economic reasonableness of a penalty range, based on the violation rate she has calculated, the employer's compliance history, and the outcomes observed in comparable cases. She should explicitly state that she is not predicting the Court's exercise of discretion, but rather providing the Court with a framework for assessing the proportionality of penalties to actual violations.

The inclusion of case citations (as recommended in Section III.E above) will significantly strengthen this framing by demonstrating that courts in comparable cases have in fact exercised their discretion to impose penalties in the range Dr. Lindstrom identifies. This transforms her opinion from a bare assertion into an evidence-based analysis of judicial practice.

V. Coordination with Dr. Makhija's Report

Dr. Priya Makhija's expert report (Workforce Dynamics Consulting LLC, 444 Castro Street, Suite 800, Mountain View, CA 94041) was finalized on May 19, 2023, and has been served on Plaintiffs. Dr. Makhija's report addresses the operational variability across AMA's 14 show units and 7 facilities and opines that the experiences of putative class members are too diverse to be resolved through common proof. Because the Lindstrom and Makhija reports are complementary — Dr. Makhija establishes the factual variability, and Dr. Lindstrom quantifies the damages implications of that variability — it is essential that the two reports be coordinated and internally consistent.

Specifically, we note the following coordination points:

1. Cross-Reference Makhija's Variability Findings. Dr. Lindstrom's report should expressly cite Dr. Makhija's findings on the statistically significant differences in shift-length distributions, overtime frequency, and meal period timing across show units. Among the most compelling of these findings is the dramatic difference in self-reported missed meal rates between show units: for example, the Studio City show "Kitchen Clash" (a studio-based cooking competition) had a self-reported missed meal rate of only 2.1%, while "Summit Challenge" (a field production show involving outdoor filming at remote locations) had a self-reported rate of 18.7%. This nearly tenfold variation within AMA's own operations powerfully supports Dr. Lindstrom's position that a single class-wide violation rate is inappropriate and that any damages analysis must account for facility-level and show-unit-level variation.

2. Ensure Consistent Use of the Same Data Set. Both experts rely on the same underlying data: the NovaPay Solutions TimeTrack Pro data set extracted by Marcus Yee of NovaPay's Data Services Division. We should confirm that both reports reference the same extraction date and version of the data set, and that any data filters or exclusions applied by one expert are consistent with those applied by the other. Any discrepancy in the underlying data would provide Plaintiffs with an easy line of attack.

3. Ensure Consistent Class Period Definition. Both reports should use the same class period definition: November 1, 2018 through the present (the class period as alleged in the operative complaint). We should verify that Dr. Lindstrom's calculations cover this full period and do not inadvertently truncate or extend it.

4. Avoid Inconsistent Opinions. We should review both reports side by side to ensure that no statement in Dr. Lindstrom's report contradicts a finding or opinion in Dr. Makhija's report, and vice versa. While the two experts address different questions, there are areas of overlap — particularly regarding the variability of working conditions across facilities and show units — where inconsistent statements could be exploited by Plaintiffs at deposition or on cross-examination.

VI. Timeline and Next Steps

The following table sets forth the timeline for completion of the Lindstrom report and the related certification opposition filings:

Given the compressed timeline, it is critical that we transmit this memorandum to Dr. Lindstrom today and that Devon deliver the PAGA case citations by June 4 at the latest. We should also schedule a call with Dr. Lindstrom for June 3 or June 4 to walk through our comments and answer any questions she may have before she begins the revisions. Nadia will coordinate scheduling with Hargrove Analytics.

We should also confirm with Dr. Lindstrom that she has sufficient time to prepare the visual exhibits recommended in this memorandum — specifically, the punch-in time histograms and the sensitivity analysis tables — by the June 6 revised draft deadline. If preparation of the exhibits requires additional time from the Hargrove Analytics data team, we should be prepared to authorize additional hours.

VII. Conclusion

In sum, Dr. Lindstrom's draft rebuttal expert report is fundamentally sound and provides a well-reasoned, empirically grounded alternative to Dr. Rennick's inflated damages model. The draft's core methodology — using actual attestation data as a measure of the true missed-meal rate, applying a conservative uplift for non-attestation facilities, and opining that PAGA penalties are subject to significant reduction — is defensible and well-supported.

The key revisions needed to bring the report to final form are as follows:

1. Better justification for the 8.5% non-attestation facility violation rate, including a more rigorous basis for the 2.5× uplift factor and a sensitivity analysis showing damages under multiple assumed violation rates;

2. A sharper, more accessible critique of Dr. Rennick's "every auto-deduction = violation" assumption, including a plain-language explanation of the auto-deduction mechanism, a simple numerical example, and a cross-reference to Karen Fong's deposition testimony;

3. Expanded punch-in time analysis with visual exhibits (histograms or distribution charts by facility and, if feasible, by show unit or show type) to undermine Plaintiffs' off-the-clock claims;

4. An illustrative rest period damages range table showing damages under several hypothetical violation rates, to provide the Court and the mediator with a sense of rest period exposure without endorsing any specific violation rate;

5. PAGA case citations — specific California court decisions in which penalties were reduced by 75–90% from the statutory maximum — to support Dr. Lindstrom's opinion on the reasonable penalty range; and

6. Presentational improvements, including front-loading the summary comparison table, correcting the approximately $12,000 rounding discrepancy in Table 4, ensuring complete data source citations, adding a materials-considered appendix, and consolidating the expert retention and fee disclosures.

With these revisions, the Lindstrom report will be a powerful tool in three critical contexts: first, in the opposition to class certification, where it will demonstrate that damages cannot be calculated on a class-wide basis using Dr. Rennick's crude assumptions and that individualized proof is required; second, at the mediation scheduled for September 2023, where a credible alternative damages figure of $5.8 million (or a range around that figure) will serve as a meaningful counterweight to Plaintiffs' $38.6 million demand; and third, if necessary, at trial, where the report will provide a defensible framework for the jury to assess damages in a manner that reflects the actual evidence rather than the worst-case assumptions embedded in Dr. Rennick's model.

We are available to discuss these comments at Renata's convenience.

Devon Archer Partner Calderwood & Harkness LLP Direct: (213) 555-4218 dearcher@calderwoodharkness.com

Nadia Petrov Senior Associate Calderwood & Harkness LLP Direct: (213) 555-4392 npetrov@calderwoodharkness.com

CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGED / ATTORNEY WORK PRODUCT This memorandum is protected by the attorney-client privilege and the work product doctrine. It is intended solely for the use of Calderwood & Harkness LLP attorneys working on the above-referenced matter. Do not distribute, copy, or disclose without prior authorization.

Facility	Location	Attestation Rate
Facility 1	West Hollywood HQ	2.3%
Facility 3	Sherman Oaks	4.1%
Facility 5	Hollywood	1.8%
Facility 6	Santa Monica	3.7%
Blended Average	~3.0%
Claim Category	Lindstrom Estimate	Rennick Estimate	Difference
First Meal Period Premiums	~$3.4M	$16.3M	($12.9M)
Rest Period Premiums	Not calculated	$8.6M	N/A
Off-the-Clock Overtime	Not calculated	—	N/A
Wage Statement Penalties (§ 226)	~$0.8M	$1.5M	($0.7M)
PAGA Penalties	~$0.5M–$1.0M	$12.2M	($11.2M–$11.7M)
Derivative Claims & Interest	~$0.6M	—	—
Total	~$5.8M	$38.6M	(~$32.8M)
Action	Responsible Party	Deadline
Transmit this comment memorandum to Dr. Lindstrom	Nadia Petrov	June 2, 2023 (today)
Provide case citations for PAGA reduction section	Devon Archer	June 4, 2023
Dr. Lindstrom submits revised draft incorporating C&H comments	Dr. Lindstrom (Hargrove Analytics Inc.)	June 6, 2023
C&H final review of revised draft	Devon Archer / Nadia Petrov	June 7–8, 2023
Final expert report issued by Dr. Lindstrom	Dr. Lindstrom (Hargrove Analytics Inc.)	June 9, 2023
Expert declaration for certification opposition prepared	Devon Archer	June 12–13, 2023
Expert declaration filed with Court	Calderwood & Harkness LLP	June 14, 2023
Opposition to class certification filed	Calderwood & Harkness LLP	June 16, 2023

CALDERWOOD & HARKNESS LLP 333 South Grand Avenue, Suite 4200 Los Angeles, California 90071
CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGED / ATTORNEY WORK PRODUCT
MEMORANDUM
TO: Renata Vasquez
FROM: Devon Archer and Nadia Petrov
DATE: June 2, 2023
RE: Review and Comment on Draft Rebuttal Expert Report of Dr. Catherine Lindstrom — Fuentes v. Aurelius Media Americas Inc., LASC Case No. 22STCV38214 (Consolidated) — C&H Matter No. 1017-00004
I. Purpose and Executive Summary
This memorandum provides our detailed comments and recommendations on Dr. Catherine Lindstrom's draft rebuttal expert report, which we received on May 26, 2023, from Hargrove Analytics Inc. (515 S. Figueroa Street, Suite 1100, Los Angeles, CA 90071). The draft report was prepared at our direction and responds to the expert report of Dr. Howard Rennick of Pinnacle Economic Consulting Group LLC, dated April 28, 2023, which was served on behalf of Plaintiffs in connection with their motion for class certification. Dr. Rennick's report calculated aggregate damages of approximately $38.6 million across all claim categories, including $12.2 million in penalties under the Private Attorneys General Act ("PAGA"), California Labor Code § 2698, et seq.
Dr. Lindstrom's draft report concludes that aggregate damages attributable to the claims at issue are approximately $5.8 million, excluding PAGA penalties, which she opines are subject to significant judicial reduction under California Labor Code § 2699(e)(2). This figure represents an approximately 85% reduction from Rennick's calculation and, in our assessment, is grounded in a far more rigorous and empirically supportable methodology.
As Renata is aware, the final version of Dr. Lindstrom's expert report is due on June 9, 2023, and the expert declaration for Aurelius Media Americas Inc.'s ("AMA") opposition to class certification must be filed on June 14, 2023, with the full opposition brief due June 16, 2023. Given these deadlines, it is imperative that we communicate our comments to Dr. Lindstrom promptly so that the revised draft can be turned around with sufficient time for our final review.
Our overall assessment of the draft is favorable: the report is strong on core methodology and provides a rigorous, data-driven alternative to Dr. Rennick's damages model. However, the draft requires refinement in several key areas to maximize its persuasive impact and to withstand the critiques that Plaintiffs' counsel will inevitably raise in their reply or at any Daubert-type challenge. Specifically, we have identified areas where additional justification, sensitivity analysis, visual exhibits, case citations, and presentational improvements are needed. Our specific comments are organized below by section of the draft report, followed by a discussion of anticipated Plaintiffs' critiques and our recommended responses, coordination issues with Dr. Makhija's companion report, and a timeline for completion.
II. Summary of Dr. Lindstrom's Draft Methodology and Conclusions
We begin with a section-by-section summary of Dr. Lindstrom's principal findings and our preliminary comments on each. These comments are elaborated in greater detail in Section III below.
A. Alternative Damages Model — First Meal Period Premiums
Dr. Lindstrom's alternative damages model for first meal period premiums constitutes the core of her rebuttal and represents the most significant area of divergence from Dr. Rennick's calculation. Dr. Rennick's model is premised on the central assumption that every auto-deducted meal period — i.e., every instance in which the NovaPay Solutions TimeTrack Pro system automatically deducted a 30-minute unpaid meal period from an employee's recorded hours — constitutes a "missed" meal period for which a one-hour premium is owed under California Labor Code § 226.7. Under this assumption, Dr. Rennick calculates first meal period premiums of approximately $16.3 million across the class.
Dr. Lindstrom rejects this assumption as fundamentally flawed. Her alternative approach uses actual Missed Meal Attestation data from the NovaPay Solutions TimeTrack Pro system at the four AMA facilities where the attestation feature was activated during the relevant period. These facilities are:
• Facility 1 — West Hollywood Headquarters (8900 Sunset Boulevard, West Hollywood, CA)
• Facility 3 — Sherman Oaks (14400 Ventura Boulevard, Sherman Oaks, CA)
• Facility 5 — Hollywood (6500 Sunset Boulevard, Hollywood, CA)
• Facility 6 — Santa Monica (2600 Colorado Avenue, Santa Monica, CA)
At each of these facilities, the TimeTrack Pro system included a Missed Meal Attestation feature that allowed employees to affirmatively report, at the time of clock-out, that they had missed or been denied a timely meal period during their shift. Dr. Lindstrom uses the attestation data as a direct measure of the actual missed-meal rate at these facilities. The attestation usage rates were as follows:
For the three facilities where the attestation feature was not activated during the relevant period — Facility 2 (Studio City), Facility 4 (Burbank), and Facility 7 (El Segundo) — Dr. Lindstrom does not assume the same 3.0% rate. Rather, she applies a higher assumed violation rate of 8.5%, based on a conservative upward adjustment designed to account for the possibility that the absence of an attestation mechanism at these facilities may have suppressed reporting of actual missed meal periods. This 8.5% rate represents approximately a 2.5× multiplier over the blended attestation rate at the four attestation-equipped facilities.
Using these facility-level violation rates, Dr. Lindstrom calculates aggregate first meal period premiums of approximately $3.4 million — compared to Dr. Rennick's $16.3 million.
Comment: The 8.5% assumed rate for the non-attestation facilities is the single most important — and most vulnerable — assumption in the draft. While the upward adjustment is conceptually reasonable and reflects appropriate conservatism, the basis for the 2.5× uplift factor is not adequately explained in the current draft. Dr. Lindstrom should provide a more rigorous justification for this multiplier and explain why it represents a conservative estimate. We elaborate on our specific recommendations for strengthening this aspect of the report in Section III.A below.
B. Rest Period Premiums
Dr. Lindstrom addresses the rest period premium claims in the context of the broader damages analysis, noting that the Court has not yet ruled on class certification (the report was drafted in advance of the August 11, 2023 hearing date) and that the extent to which rest period claims will be certified as a class claim remains uncertain. Nevertheless, Dr. Lindstrom addresses these claims to the extent they may be included in any certified class.
Dr. Lindstrom's principal critique of Dr. Rennick's rest period damages calculation is that his assumed 50% rest period violation rate is entirely unsupported by the evidence. Dr. Rennick derived this 50% figure solely from the declarations of three named plaintiffs — Maria Fuentes, Timothy Halloran, and Daniela Padilla — each of whom stated that they were "frequently" denied rest periods or that rest periods were "rarely" provided during their shifts. Dr. Lindstrom correctly observes that the experiences of three named plaintiffs cannot be generalized to the approximately 1,850 putative class members working across 14 show units and 7 facilities, particularly in the absence of any survey data, time records, or other empirical evidence.
Dr. Lindstrom further notes that rest periods are paid time under California law and, as such, are not separately recorded in the TimeTrack Pro system. Because there is no timekeeping data reflecting when rest periods were or were not taken, any class-wide calculation of rest period violations is inherently speculative and necessarily requires individualized inquiry into each employee's experience on each shift.
Consistent with this analysis, Dr. Lindstrom declines to calculate a specific rest period damages figure in the draft. Instead, she opines that rest period claims are not susceptible to common proof and that any damages calculation would require individualized inquiry that is inconsistent with class treatment.
Comment: While this approach is conceptually sound and is consistent with our class certification strategy, we believe the report would be more useful — particularly in the context of mediation and any settlement discussions — if Dr. Lindstrom were to provide an illustrative range of rest period damages using several hypothetical violation rates. A flat refusal to estimate rest period damages, while defensible, may be perceived by the Court or the mediator as evasive. We discuss this recommendation in greater detail in Section III.D below.
C. Off-the-Clock Overtime
Dr. Lindstrom similarly declines to calculate class-wide off-the-clock overtime damages, opining that these claims are inherently individualized and not amenable to class-wide computation. The draft provides a detailed critique of Dr. Rennick's methodology on this point.
Dr. Rennick's off-the-clock damages model assumes that every class member worked an average of 37.5 minutes of off-the-clock time before each shift — a figure derived from the midpoint of the 30-to-45-minute range alleged in the operative complaint and in the named plaintiff declarations. Dr. Lindstrom correctly observes that this assumption has no empirical basis whatsoever. There is no timekeeping data to support a uniform 37.5-minute off-the-clock work period, no survey or sampling data, and no documentary evidence such as emails, call sheets, or production schedules that would substantiate this figure across the class.
More significantly, Dr. Lindstrom identifies an affirmative basis for rejecting the uniform pre-shift off-the-clock assumption. She observes that the TimeTrack Pro punch-in data shows significant variation in the time at which class members punched in relative to their scheduled call times. Some employees consistently punched in at or very near their scheduled call time, suggesting that they were not performing significant off-the-clock work before their shifts. Others punched in 5 to 15 minutes before their scheduled call time, which may reflect modest pre-shift preparation but not the 30- to 45-minute window alleged by Plaintiffs. Still other employees punched in after their scheduled call time, indicating late arrivals rather than early off-the-clock work. This variation across the class fundamentally undermines the assumption of a uniform 37.5-minute off-the-clock period applicable to all class members on all shifts.
Comment: This punch-in time analysis is one of the strongest elements of the draft and should be expanded and presented with greater visual impact. We recommend that Dr. Lindstrom prepare a histogram or distribution chart showing the spread of punch-in times relative to scheduled call times, broken out by facility and, if possible, by show unit or show type. This would serve as a compelling visual exhibit for both the certification opposition and any future mediation. We discuss this recommendation in greater detail in Section III.C below.
D. Wage Statement Penalties (Cal. Lab. Code § 226)
Dr. Lindstrom calculates wage statement penalties under California Labor Code § 226 as derivative of the meal period claim. Because she finds a substantially lower meal period violation rate than Dr. Rennick, the resulting wage statement penalty calculation is correspondingly lower. Dr. Lindstrom's estimate of aggregate wage statement penalties is approximately $0.8 million, compared to Dr. Rennick's $1.5 million.
Dr. Lindstrom's calculation correctly applies the statutory cap structure under § 226(e): an initial violation penalty of $50 per employee, a subsequent violation penalty of $100 per employee per pay period, and an aggregate cap of $4,000 per employee. The calculation also correctly applies the lower violation rate derived from the attestation data and the assumed non-attestation facility rate.
Comment: This section of the draft is adequate and requires only minor clean-up for clarity and consistency with the formatting of other sections. No substantive revisions are needed.
E. PAGA Penalties
Dr. Lindstrom addresses PAGA penalties separately from the compensatory damages categories, opining that PAGA penalties are subject to significant judicial reduction under California Labor Code § 2699(e)(2). Under that provision, a court has broad discretion to reduce PAGA penalties that would be "unjust, arbitrary and oppressive, or confiscatory," taking into account factors including the employer's good-faith efforts to comply with the law.
Dr. Lindstrom notes that Dr. Rennick's PAGA penalty calculation of $12.2 million assumes the imposition of maximum statutory penalties — $100 for the initial violation and $200 for each subsequent violation, per pay period, per aggrieved employee — across all violation categories for all aggrieved employees, with no reduction of any kind. This approach treats the statutory maximum as the presumptive award, which Dr. Lindstrom correctly observes is inconsistent with the exercise of judicial discretion contemplated by the statute.
Dr. Lindstrom estimates a "reasonable" PAGA penalty range of $500,000 to $1.0 million, based on the following factors: (1) the lower actual violation rate established by the attestation data; (2) AMA's good-faith compliance efforts, including the adoption of written meal and rest period policies, the implementation of the NovaPay Solutions TimeTrack Pro timekeeping system, and the activation of the Missed Meal Attestation feature; and (3) AMA's corrective actions during the class period, specifically the activation of the attestation feature at all seven facilities in December 2022 and the correction of the auto-deduction threshold from 6 hours to 5 hours, also in December 2022.
Comment: This section would benefit significantly from the inclusion of specific California court decisions in which PAGA penalties were reduced by 75–90% from the statutory maximum. The current draft references the statutory reduction provision but does not cite any case law in support of the proposition that courts routinely exercise this discretion to impose penalties far below the maximum. Devon will compile a list of relevant published and unpublished decisions and provide them to Dr. Lindstrom for inclusion. We discuss this further in Section III.E below.
F. Total Alternative Damages
Dr. Lindstrom's total alternative damages figure is approximately $5.8 million, comprising the following components:
This represents a reduction of approximately 85% from Dr. Rennick's damages figure. While a portion of this difference is attributable to the fact that Dr. Lindstrom declines to calculate rest period and off-the-clock damages (as discussed above), the majority of the reduction stems from her use of actual attestation data and a more defensible assumed violation rate for non-attestation facilities, combined with her application of a reasonable PAGA penalty reduction.
Comment: The summary comparison table currently appears in Section VII of the draft report, where it is buried deep in the analysis. We strongly recommend that this table be moved to the front of the report — either Section I (Introduction) or Section II (Summary of Opinions) — so that the reader immediately understands the magnitude of the difference between the two experts' conclusions and the methodological reasons for that difference. A side-by-side comparison of the type set forth above, including both the dollar difference and a brief notation of the methodological basis for each difference, would be highly effective. This is discussed further in Section III.F below.
III. Specific Comments and Recommended Revisions
This section sets forth our detailed comments and recommended revisions, organized by topic. We have prioritized these comments roughly in order of importance to the overall persuasiveness and defensibility of the report.
A. Strengthen the Foundation for the 8.5% Violation Rate at Non-Attestation Facilities
As noted above, the 8.5% assumed violation rate for Facilities 2 (Studio City), 4 (Burbank), and 7 (El Segundo) is the most vulnerable assumption in the draft report. These three facilities account for a significant share of the total class member work shifts, and Plaintiffs will almost certainly attack the 8.5% figure as arbitrary and as materially underestimating the actual violation rate at facilities where employees had no available mechanism to report missed meal periods.
Plaintiffs' argument will be straightforward: if the only measure of the "true" violation rate is the attestation data at four facilities, and if the attestation feature itself may have been underutilized (due to lack of training, lack of awareness, or employee reluctance to report violations), then any rate derived from that data is already understated — and applying a mere 2.5× uplift to an already-understated base rate produces a figure that is still far below the true violation rate. To withstand this critique, the 8.5% rate must be better justified.
We recommend three complementary approaches:
1. Provide a More Rigorous Basis for the 2.5× Uplift Factor. The current draft states that the 8.5% rate reflects a "conservative upward adjustment" but does not explain why 2.5× is the appropriate multiplier. Dr. Lindstrom should consider referencing published academic literature or government studies on underreporting of workplace safety incidents, wage-and-hour violations, or compliance issues when formal reporting mechanisms are absent. For example, OSHA studies have documented that workplace injury reporting rates increase significantly when electronic reporting systems are implemented, with reporting rates at non-electronic facilities typically ranging from 1.5× to 3.5× lower than at facilities with electronic reporting. If Dr. Lindstrom can identify analogous literature supporting the general proposition that the absence of a formal reporting mechanism leads to underreporting on the order of 2× to 3× (which would make the 2.5× uplift a reasonable midpoint), the assumed rate will be substantially more defensible. The key is to ground the multiplier in something other than Dr. Lindstrom's professional judgment alone, even though expert judgment is a permissible basis for opinion under California Evidence Code § 801.
2. Present a Sensitivity Analysis. Rather than defending a single-point estimate of 8.5%, Dr. Lindstrom should present a sensitivity analysis showing total first meal period premium damages under multiple assumed violation rates for the non-attestation facilities. We recommend that the sensitivity analysis include the following rates: 8.5% (Dr. Lindstrom's base case), 15%, 25%, and 50% (Dr. Rennick's implicit assumption for rest periods, used here for comparison). This "range" approach is more defensible than a single-point estimate because it demonstrates that the expert has considered a spectrum of possibilities and allows the Court to see that even at substantially higher assumed rates for these three facilities, the total damages remain far below Dr. Rennick's figure. For example, even if the violation rate at Facilities 2, 4, and 7 is assumed to be 25% — more than eight times the blended attestation rate — the resulting total first meal period premiums would still be significantly less than Rennick's $16.3 million. This sensitivity analysis should be presented in a clear table format.
3. Cross-Reference Dr. Makhija's Variability Analysis. Dr. Lindstrom should cite the findings of Dr. Priya Makhija (Workforce Dynamics Consulting LLC, 444 Castro Street, Suite 800, Mountain View, CA 94041) regarding the operational characteristics of the three non-attestation facilities. Dr. Makhija's report, finalized on May 19, 2023, demonstrates that the three non-attestation facilities include a diverse mix of production types — studio-based production at Facility 2 (Studio City), live events coordination at Facility 4 (Burbank), and post-production operations at Facility 7 (El Segundo). Not all of these environments are equally likely to generate meal period violations. In particular, Facility 7 (El Segundo) is a post-production annex with generally regular, predictable schedules and comparatively fewer operational pressures that would cause meal period interruptions. The inclusion of Facility 7 in the non-attestation group actually makes the 8.5% assumed rate more conservative, not less, because the facility-specific rate at El Segundo is likely lower than the group average. Dr. Lindstrom should note this explicitly.
B. Address Rennick's "Every Auto-Deduction = Missed Meal" Assumption More Directly
The foundational flaw in Dr. Rennick's damages model is his assumption that every instance of an auto-deducted meal period constitutes a meal period violation for which a one-hour premium is owed. While the draft report critiques this assumption, the critique could be materially sharper and more accessible to a non-expert reader — specifically, to the judge who will be reading these reports in connection with the certification motion.
We recommend the following revisions:
1. Add a Clear, Standalone Explanatory Paragraph. The draft should include a self-contained paragraph, early in the discussion of meal period damages, that explains in plain terms what the NovaPay Solutions TimeTrack Pro auto-deduction feature actually does. The auto-deduction is a standard payroll system feature that records the 30-minute unpaid meal period that the employee took during the shift. For an employee who clocks in at 8:00 a.m. and clocks out at 5:00 p.m. and takes a compliant 30-minute meal break, the auto-deduction accurately reflects the employee's hours worked: 9.0 hours of total elapsed time minus 0.5 hours of meal period equals 8.5 hours of recorded compensable time. Dr. Rennick treats this accurate payroll deduction as a "violation" — equating the recording of a meal period with the denial of a meal period. This is logically incoherent. The auto-deduction does not cause a missed meal; it records a taken meal. Dr. Rennick's approach would require AMA to pay a one-hour premium for every meal period that was properly provided and properly recorded — an absurd result.
2. Include a Simple Numerical Example. To make this point concrete and accessible, the report should include a brief hypothetical illustration. For example:
Employee A is scheduled for a shift from 8:00 a.m. to 5:00 p.m. Employee A takes a 30-minute meal break from 12:00 p.m. to 12:30 p.m. At clock-out, TimeTrack Pro auto-deducts 30 minutes, recording 8.5 hours of compensable time. Under Dr. Rennick's methodology, this compliant meal period would be counted as a "missed" meal, and AMA would owe Employee A a one-hour premium of approximately $27.50. This result has no basis in the facts or in the law.
This type of concrete example is far more effective than abstract methodological critique and will resonate with the Court.
3. Reference Karen Fong's Deposition Testimony. The deposition of Karen Fong, AMA's Payroll Manager, was taken on May 18, 2023. Ms. Fong testified extensively about the design and operation of the TimeTrack Pro auto-deduction feature. Her testimony supports the characterization of the auto-deduction as a payroll recording mechanism — not a violation mechanism. Specifically, Ms. Fong testified that the auto-deduction was implemented to ensure that employees were not paid for unpaid meal periods they actually took, and that the system was designed to be overridden when an employee reported a missed meal through the attestation feature. Dr. Lindstrom should cite this testimony by deposition page and line number to anchor her critique in the evidentiary record.
C. Expand the Punch-In Time Analysis
The punch-in time distribution analysis is one of the most compelling elements of the draft report. It provides direct, data-driven evidence that undermines Plaintiffs' claim that all class members uniformly worked 30 to 45 minutes of off-the-clock time before each shift. This analysis should be given greater prominence and presented with visual exhibits that will be immediately understandable to the Court.
We recommend the following:
• Histogram or Distribution Charts. Dr. Lindstrom should prepare a histogram or scatter plot for each of the seven facilities showing the distribution of punch-in times relative to scheduled call times. The x-axis should show the number of minutes before or after the scheduled call time (e.g., –30 minutes, –20 minutes, –10 minutes, 0 minutes, +10 minutes, etc.), and the y-axis should show the number or percentage of shifts falling in each time bin. This visual presentation will immediately demonstrate the wide dispersion of punch-in times and the absence of any clustering around the –30 to –45 minute range that Dr. Rennick's model assumes.
• Facility-Level and Show-Unit-Level Breakdowns. To the extent the data supports it, the analysis should also be broken out by show unit or, at minimum, by show type (studio production, field production, live events, post-production, digital content). This will reinforce Dr. Makhija's findings regarding operational variability across show units and demonstrate that the off-the-clock experience of a studio-based production assistant bears no resemblance to that of a field production coordinator, making a single class-wide calculation inappropriate.
• Summary Statistics. In addition to the visual exhibits, Dr. Lindstrom should include a table of summary statistics (mean, median, standard deviation, interquartile range) for punch-in times relative to call times, by facility and show type. These statistics will provide a quantitative basis for the Court to assess the variability of the data.
D. Add Illustrative Rest Period Damages Range
Although Dr. Lindstrom correctly declines to endorse any particular rest period violation rate or to calculate a specific rest period damages figure — and although this position is consistent with our certification opposition strategy — we believe the report would benefit from the inclusion of an illustrative damages range using several hypothetical violation rates.
The purpose of this table is not to concede that rest period violations occurred at any particular rate, but rather to provide the Court and the mediator with a sense of scale. At mediation (currently scheduled for September 2023), both the mediator and opposing counsel will want to see a "fully loaded" damages figure that includes some estimate of rest period exposure. If Dr. Lindstrom's report provides no rest period estimate at all, we will be forced to present our own informal calculations, which will carry less weight than an estimate embedded in the expert report.
We recommend that Dr. Lindstrom add a table showing what rest period damages would be under assumed violation rates of 5%, 10%, 15%, and 25%, using the following parameters:
• Average hourly rate for the class: approximately $27.50
• Class size: approximately 1,850 employees
• Total eligible shifts during the class period: approximately 612,000
• Premium per violation: one hour of pay at the employee's regular rate
The table should clearly state that these are illustrative calculations only and that Dr. Lindstrom does not endorse any particular violation rate for rest period claims. The accompanying text should reiterate Dr. Lindstrom's opinion that rest period claims require individualized proof and are not susceptible to class-wide computation.
E. Bolster PAGA Reduction Argument with Case Citations
The PAGA section of the draft report correctly identifies the statutory basis for judicial reduction of PAGA penalties under California Labor Code § 2699(e)(2), but it does not cite any specific California court decisions in which such reductions have been ordered or approved. This is a significant gap. Without case citations, Dr. Lindstrom's opinion that penalties in the range of $500,000 to $1.0 million are "reasonable" rests entirely on her professional judgment, which Plaintiffs will dismiss as self-serving advocacy rather than expert analysis.
We recommend the following:
• Cite Published and Unpublished Decisions. Devon will compile a list of California Superior Court and Court of Appeal decisions in which PAGA penalties were reduced by 75% to 90% from the statutory maximum in comparable wage-and-hour cases. This list will include both contested judgments and court-approved settlements in which the PAGA allocation was a fraction of the theoretical maximum. Devon will provide this list to Dr. Lindstrom no later than June 4, 2023.
• Reference AMA's Corrective Actions. The report should more prominently highlight AMA's remedial measures as factors supporting a significant penalty reduction. Specifically, AMA activated the Missed Meal Attestation feature at all seven facilities in December 2022 (previously it had been active at only four) and corrected the auto-deduction trigger threshold from 6 hours to 5 hours (the correct statutory threshold for the first meal period) at the same time. These actions demonstrate good-faith efforts to comply with the law and to remediate the conditions that gave rise to the claims — precisely the type of conduct that courts consider in determining whether full statutory penalties would be "unjust, arbitrary and oppressive, or confiscatory."
• Frame the Opinion Appropriately. Dr. Lindstrom should be careful to frame her PAGA analysis as an expert opinion on the "reasonable" range of penalties that a court would likely award based on the violation rate, the employer's good-faith efforts, and the outcomes in comparable cases. She should not frame it as a prediction of the Court's specific exercise of discretion, which would invite an objection that she is usurping the Court's role.
F. Presentation and Formatting
In addition to the substantive revisions discussed above, we recommend several presentational and formatting improvements:
1. Move the Summary Comparison Table to the Front of the Report. As discussed in Section II.F above, the summary comparison table — showing Dr. Lindstrom's and Dr. Rennick's respective damages calculations by claim category, with the dollar difference and a brief notation of the methodological basis — should be placed in Section I or Section II of the report, not in Section VII where it currently appears. The reader should be able to grasp the bottom-line conclusion within the first two pages.
2. Ensure All Data Sources Are Clearly Cited. Every reference to NovaPay Solutions TimeTrack Pro data should include the specific data extraction identifier assigned by NovaPay's data extraction coordinator, Marcus Yee (NovaPay Solutions, Data Services Division). Where the data was produced in litigation, the corresponding Bates numbers should also be cited. This level of specificity is essential to establishing the reliability of the data and to enabling Plaintiffs' expert to verify Dr. Lindstrom's calculations.
3. Add an Appendix of Materials Considered. Consistent with the requirements of California Evidence Code § 802 and the expectations of the Court, the report should include a comprehensive appendix listing all materials considered by Dr. Lindstrom in forming her opinions. This appendix should include all TimeTrack Pro data extractions, deposition transcripts reviewed, documents reviewed (by Bates number), and other expert reports considered (including Dr. Rennick's report and Dr. Makhija's report).
4. Include Required Expert Disclosures. The report should clearly state that Dr. Lindstrom was retained by Calderwood & Harkness LLP on behalf of AMA, disclose her hourly rate ($700 per hour), and state the total fees incurred to date. While the draft includes some of this information, it should be consolidated and presented in a single paragraph or section, consistent with standard practice for expert reports in California Superior Court.
5. Correct the Arithmetic Discrepancy in Table 4. We have identified a minor computational discrepancy in Table 4 of the draft. The sum of the facility-level meal period premiums set forth in the table does not precisely equal the stated total of $3.4 million. The discrepancy appears to be a rounding issue of approximately $12,000 — the sum of the individual facility figures totals approximately $3,412,000, while the stated aggregate is $3,400,000. This must be corrected before the report is finalized. While the discrepancy is immaterial to the overall conclusion, Plaintiffs' counsel will seize on any arithmetic error, however small, to attack the credibility of the report and its author.
IV. Anticipated Plaintiffs' Critiques and Recommended Responses
Based on our review of Plaintiffs' briefing to date, the Rennick report, and the arguments advanced at the initial case management conference and subsequent hearings, we anticipate the following critiques of Dr. Lindstrom's report and recommend the following responses:
A. "Lindstrom's Model Underestimates Violations Because It Relies on Attestation Data From a System That Employees Didn't Know About"
Expected Argument: Plaintiffs will point to the very low attestation usage rates (ranging from 1.8% to 4.1%) and will argue that these rates are unreliable indicators of the true missed-meal rate because employees were not adequately informed about the attestation feature. Plaintiffs have already obtained discovery indicating that AMA did not conduct formal training sessions on the attestation feature and that the feature was accessible only through a specific sequence of prompts on the TimeTrack Pro terminal that employees could easily overlook. Plaintiffs will argue that the attestation rate dramatically understates the true violation rate and that any damages model built on this data is fundamentally unreliable.
Recommended Response: Dr. Lindstrom should acknowledge this critique directly in the report rather than ignoring it or dismissing it. Transparency will enhance credibility. Specifically, the report should note:
(1) Even if the attestation feature underreports violations to some degree, Dr. Rennick's assumption of a 100% violation rate represents the opposite extreme and is equally — if not more — unsupported by the evidence. Dr. Rennick offers no empirical basis for the proposition that every auto-deducted meal period was a violation; he simply assumes it. The truth lies somewhere between Dr. Lindstrom's attestation-based rate and Dr. Rennick's assumed 100% rate.
(2) The sensitivity analysis recommended in Section III.A above directly addresses this concern by showing that even at materially higher assumed violation rates — two, three, or even eight times the attestation rate — total damages remain a fraction of Dr. Rennick's figure. The sensitivity analysis converts a potential weakness into a strength by demonstrating the robustness of Dr. Lindstrom's conclusions across a wide range of assumptions.
(3) The appropriate methodological response to potential underreporting is to apply an uplift factor to the observed data, which is precisely what Dr. Lindstrom does for Facilities 2, 4, and 7 (the non-attestation facilities). This is a well-established approach in survey research and statistical analysis. What is not appropriate is to abandon empirical data entirely and assume a 100% violation rate, which is what Dr. Rennick has done.
B. "Lindstrom Ignores the Systemic Nature of the Auto-Deduction"
Expected Argument: Plaintiffs will argue that the TimeTrack Pro auto-deduction was a company-wide system, programmed and applied identically across all seven AMA facilities, that automatically deducted meal periods without requiring employees to affirmatively confirm that they took a break. Plaintiffs will contend that this systemic auto-deduction created a common injury — the automatic loss of 30 minutes of pay whenever the system activated — that is susceptible to common proof. They will argue that Dr. Lindstrom's facility-by-facility and show-unit-by-show-unit approach improperly disaggregates a common question into individualized inquiries, thereby undermining class certification.
Recommended Response: Dr. Lindstrom should address this argument by drawing a clear distinction between the common system and the common injury. The report should note that Dr. Lindstrom does not dispute that the auto-deduction was a company-wide system. Her analysis does not turn on whether the system was applied uniformly — she accepts that it was. Rather, her analysis demonstrates that the impact of the auto-deduction varied significantly across facilities, show units, and individual employees, because the actual rate at which employees missed meal periods varied based on operational factors such as production schedules, show type, staffing levels, and managerial practices. The fact that the same payroll system was used at all facilities does not mean that the same number or percentage of employees at each facility actually missed their meal periods. A common system does not mean a common injury.
This distinction is critical for the certification opposition. If the Court accepts that the auto-deduction system creates a common question, it may certify a class on liability. But even if it does, Dr. Lindstrom's analysis demonstrates that damages cannot be calculated on a class-wide basis using a single assumed violation rate, because the actual violation rates differ materially across facilities and show units.
C. "Lindstrom's $5.8M Figure Is Artificially Low Because It Excludes Rest Period and Off-the-Clock Damages"
Expected Argument: Plaintiffs will note that Dr. Lindstrom's total damages figure of approximately $5.8 million excludes rest period premiums and off-the-clock overtime damages entirely, while Dr. Rennick's $38.6 million includes both categories. Plaintiffs will argue that any comparison of the two totals is misleading because they do not cover the same scope of claims, and that if rest period and off-the-clock damages were included, Dr. Lindstrom's total would be significantly higher.
Recommended Response: Dr. Lindstrom should clearly and prominently state that she excludes rest period and off-the-clock components from her total not because she believes these claims have zero value, but because they are not susceptible to class-wide calculation on the basis of existing data. Her exclusion reflects a methodological judgment about the limits of reliable expert analysis, not a concession that no violations occurred.
The report should include a clear caveat noting that any comparison of the two experts' aggregate damages figures must account for this difference in scope. We further believe that the inclusion of the illustrative rest period damages range table (recommended in Section III.D above) will effectively address this concern by providing the Court and the mediator with a sense of the potential magnitude of rest period exposure, without Dr. Lindstrom endorsing any specific violation rate or damages figure.
D. "Lindstrom's PAGA Reduction Is Speculative"
Expected Argument: Plaintiffs will argue that PAGA penalties are set by statute and that any reduction from the statutory maximum is within the exclusive discretion of the Court, not the province of a retained expert. They will contend that Dr. Lindstrom's opinion on a "reasonable" penalty range of $500,000 to $1.0 million is inherently speculative and constitutes improper testimony on a legal question.
Recommended Response: Dr. Lindstrom should frame her PAGA analysis carefully to avoid encroaching on legal questions. The report should present the PAGA penalty analysis as an opinion on the economic reasonableness of a penalty range, based on the violation rate she has calculated, the employer's compliance history, and the outcomes observed in comparable cases. She should explicitly state that she is not predicting the Court's exercise of discretion, but rather providing the Court with a framework for assessing the proportionality of penalties to actual violations.
The inclusion of case citations (as recommended in Section III.E above) will significantly strengthen this framing by demonstrating that courts in comparable cases have in fact exercised their discretion to impose penalties in the range Dr. Lindstrom identifies. This transforms her opinion from a bare assertion into an evidence-based analysis of judicial practice.
V. Coordination with Dr. Makhija's Report
Dr. Priya Makhija's expert report (Workforce Dynamics Consulting LLC, 444 Castro Street, Suite 800, Mountain View, CA 94041) was finalized on May 19, 2023, and has been served on Plaintiffs. Dr. Makhija's report addresses the operational variability across AMA's 14 show units and 7 facilities and opines that the experiences of putative class members are too diverse to be resolved through common proof. Because the Lindstrom and Makhija reports are complementary — Dr. Makhija establishes the factual variability, and Dr. Lindstrom quantifies the damages implications of that variability — it is essential that the two reports be coordinated and internally consistent.
Specifically, we note the following coordination points:
1. Cross-Reference Makhija's Variability Findings. Dr. Lindstrom's report should expressly cite Dr. Makhija's findings on the statistically significant differences in shift-length distributions, overtime frequency, and meal period timing across show units. Among the most compelling of these findings is the dramatic difference in self-reported missed meal rates between show units: for example, the Studio City show "Kitchen Clash" (a studio-based cooking competition) had a self-reported missed meal rate of only 2.1%, while "Summit Challenge" (a field production show involving outdoor filming at remote locations) had a self-reported rate of 18.7%. This nearly tenfold variation within AMA's own operations powerfully supports Dr. Lindstrom's position that a single class-wide violation rate is inappropriate and that any damages analysis must account for facility-level and show-unit-level variation.
2. Ensure Consistent Use of the Same Data Set. Both experts rely on the same underlying data: the NovaPay Solutions TimeTrack Pro data set extracted by Marcus Yee of NovaPay's Data Services Division. We should confirm that both reports reference the same extraction date and version of the data set, and that any data filters or exclusions applied by one expert are consistent with those applied by the other. Any discrepancy in the underlying data would provide Plaintiffs with an easy line of attack.
3. Ensure Consistent Class Period Definition. Both reports should use the same class period definition: November 1, 2018 through the present (the class period as alleged in the operative complaint). We should verify that Dr. Lindstrom's calculations cover this full period and do not inadvertently truncate or extend it.
4. Avoid Inconsistent Opinions. We should review both reports side by side to ensure that no statement in Dr. Lindstrom's report contradicts a finding or opinion in Dr. Makhija's report, and vice versa. While the two experts address different questions, there are areas of overlap — particularly regarding the variability of working conditions across facilities and show units — where inconsistent statements could be exploited by Plaintiffs at deposition or on cross-examination.
VI. Timeline and Next Steps
The following table sets forth the timeline for completion of the Lindstrom report and the related certification opposition filings:
Given the compressed timeline, it is critical that we transmit this memorandum to Dr. Lindstrom today and that Devon deliver the PAGA case citations by June 4 at the latest. We should also schedule a call with Dr. Lindstrom for June 3 or June 4 to walk through our comments and answer any questions she may have before she begins the revisions. Nadia will coordinate scheduling with Hargrove Analytics.
We should also confirm with Dr. Lindstrom that she has sufficient time to prepare the visual exhibits recommended in this memorandum — specifically, the punch-in time histograms and the sensitivity analysis tables — by the June 6 revised draft deadline. If preparation of the exhibits requires additional time from the Hargrove Analytics data team, we should be prepared to authorize additional hours.
VII. Conclusion
In sum, Dr. Lindstrom's draft rebuttal expert report is fundamentally sound and provides a well-reasoned, empirically grounded alternative to Dr. Rennick's inflated damages model. The draft's core methodology — using actual attestation data as a measure of the true missed-meal rate, applying a conservative uplift for non-attestation facilities, and opining that PAGA penalties are subject to significant reduction — is defensible and well-supported.
The key revisions needed to bring the report to final form are as follows:
1. Better justification for the 8.5% non-attestation facility violation rate, including a more rigorous basis for the 2.5× uplift factor and a sensitivity analysis showing damages under multiple assumed violation rates;
2. A sharper, more accessible critique of Dr. Rennick's "every auto-deduction = violation" assumption, including a plain-language explanation of the auto-deduction mechanism, a simple numerical example, and a cross-reference to Karen Fong's deposition testimony;
3. Expanded punch-in time analysis with visual exhibits (histograms or distribution charts by facility and, if feasible, by show unit or show type) to undermine Plaintiffs' off-the-clock claims;
4. An illustrative rest period damages range table showing damages under several hypothetical violation rates, to provide the Court and the mediator with a sense of rest period exposure without endorsing any specific violation rate;
5. PAGA case citations — specific California court decisions in which penalties were reduced by 75–90% from the statutory maximum — to support Dr. Lindstrom's opinion on the reasonable penalty range; and
6. Presentational improvements, including front-loading the summary comparison table, correcting the approximately $12,000 rounding discrepancy in Table 4, ensuring complete data source citations, adding a materials-considered appendix, and consolidating the expert retention and fee disclosures.
With these revisions, the Lindstrom report will be a powerful tool in three critical contexts: first, in the opposition to class certification, where it will demonstrate that damages cannot be calculated on a class-wide basis using Dr. Rennick's crude assumptions and that individualized proof is required; second, at the mediation scheduled for September 2023, where a credible alternative damages figure of $5.8 million (or a range around that figure) will serve as a meaningful counterweight to Plaintiffs' $38.6 million demand; and third, if necessary, at trial, where the report will provide a defensible framework for the jury to assess damages in a manner that reflects the actual evidence rather than the worst-case assumptions embedded in Dr. Rennick's model.
We are available to discuss these comments at Renata's convenience.
Devon Archer Partner Calderwood & Harkness LLP Direct: (213) 555-4218 dearcher@calderwoodharkness.com
Nadia Petrov Senior Associate Calderwood & Harkness LLP Direct: (213) 555-4392 npetrov@calderwoodharkness.com
CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGED / ATTORNEY WORK PRODUCT This memorandum is protected by the attorney-client privilege and the work product doctrine. It is intended solely for the use of Calderwood & Harkness LLP attorneys working on the above-referenced matter. Do not distribute, copy, or disclose without prior authorization.
Facility | Location | Attestation Rate
Facility 1 | West Hollywood HQ | 2.3%
Facility 3 | Sherman Oaks | 4.1%
Facility 5 | Hollywood | 1.8%
Facility 6 | Santa Monica | 3.7%
Blended Average | ~3.0%
Claim Category | Lindstrom Estimate | Rennick Estimate | Difference
First Meal Period Premiums | ~$3.4M | $16.3M | ($12.9M)
Rest Period Premiums | Not calculated | $8.6M | N/A
Off-the-Clock Overtime | Not calculated | — | N/A
Wage Statement Penalties (§ 226) | ~$0.8M | $1.5M | ($0.7M)
PAGA Penalties | ~$0.5M–$1.0M | $12.2M | ($11.2M–$11.7M)
Derivative Claims & Interest | ~$0.6M | — | —
Total | ~$5.8M | $38.6M | (~$32.8M)
Action | Responsible Party | Deadline
Transmit this comment memorandum to Dr. Lindstrom | Nadia Petrov | June 2, 2023 (today)
Provide case citations for PAGA reduction section | Devon Archer | June 4, 2023
Dr. Lindstrom submits revised draft incorporating C&H comments | Dr. Lindstrom (Hargrove Analytics Inc.) | June 6, 2023
C&H final review of revised draft | Devon Archer / Nadia Petrov | June 7–8, 2023
Final expert report issued by Dr. Lindstrom | Dr. Lindstrom (Hargrove Analytics Inc.) | June 9, 2023
Expert declaration for certification opposition prepared | Devon Archer | June 12–13, 2023
Expert declaration filed with Court | Calderwood & Harkness LLP | June 14, 2023
Opposition to class certification filed | Calderwood & Harkness LLP | June 16, 2023

CALDERWOOD & HARKNESS LLP 333 South Grand Avenue, Suite 4200 Los Angeles, California 90071

MEMORANDUM

Record

Parties

Dates

Amounts