groves, et al. v. maplebear, inc. d/b/a instacart · taylor, sarah lozano, timothy hearl, and mimi...

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AMENDMENT NO. 1 TO CLASS ACTION SETTLEMENT AGREEMENT

WHEREAS Plaintiffs and Defendant Maplebear, Inc. dba Instacart (“Instacart” or

“Defendant”), entered into a Class Action Settlement Agreement, dated March 21, 2019, in the

action captioned: Groves, et al. v. Maplebear, Inc. d/b/a Instacart, currently pending in the

Superior Court for the State of California for the County of Los Angeles, Case No. BC695401;

WHEREAS, Plaintiffs filed a Motion for Preliminary Approval of a proposed Class

Action Settlement on March 22, 2019;

WHEREAS, Objector Paul Taylor, represented by the Graves Firm, and Objector Sarah

Lozano, represented by the Arns Law Firm, each filed papers opposing preliminary approval of

the Class Action Settlement in advance of the preliminary approval hearing;

WHEREAS, the Graves Firm and the Arns Law Firm (collectively “the Related Action

Counsel”) represent plaintiffs in several related actions (“the Related Action Plaintiffs”) against

Defendant, including Paul Taylor v Maplebear, Inc. dba Instacart, Los Angeles Superior Court

Case No. 18STCV04367, Paul Taylor v Maplebear, Inc. dba Instacart, Los Angeles Superior

Court Case No. BC707901, Sarah Lozano v Maplebear, Inc. dba Instacart, San Francisco

Superior Court Case No. CGC-19-573177, Timothy Hearl v Maplebear, Inc. dba Instacart, San

Francisco Superior Court Case No. CGC-19-575971, and Mimi Hayes v Maplebear, Inc. dba

Instacart, San Francisco Superior Court Case No. CGC-19-575959 (collectively “the Related

Actions” and each a “Related Action”); and

WHEREAS, Plaintiffs and Instacart (collectively “the Parties”), together with the Related

Action Plaintiffs, have reached an agreement to amend the Settlement Agreement pursuant to

Section VIII (“Modification”) of the Settlement Agreement, which would resolve the Objectors’

concerns with the settlement.

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NOW THEREFORE, the Parties, Objectors Taylor and Lozano, and the remaining

Related Action Plaintiffs, hereby stipulate and agree to, and request Court approval of, the

following amendment to the Settlement Agreement entered into by the Parties and previously

submitted for preliminary approval on March 22, 2019:

1. From the Gross Common Fund, the Claims Administrator shall set aside a gross

amount of $175,000 (“the Gross Subclass Fund”) to resolve the claims of the 82 Class Members

who elected not to participate in arbitration when entering into their independent contractor

agreements with Instacart (“the Subclass”). All Claims Administration Expenses, Class Counsel

Fees, Plaintiffs’ Litigation Expenses, the California Labor & Workforce Development Agency’s

(“LWDA”) share of the PAGA Payment, taxes, taxes arising from payments, and Class

Representative Service Awards, which are deducted from the Gross Common Fund pursuant to

the Settlement Agreement, shall also be deducted from the Gross Subclass Fund on a pro rata

basis. The remaining balance of the Gross Subclass Fund after this pro rata deduction shall be

referred to as the “Net Subclass Fund.” 1 Members of the Subclass shall not receive settlement

payments as set forth in the Plan of Allocation described in Section III, Paragraph 13(c) of the

Settlement Agreement, but shall instead participate in the settlement as follows: Members of the

Subclass who submit a claim pursuant to Section III, Paragraph 13(c) of the Settlement

Agreement and who do not opt out of the settlement pursuant to Section III, Paragraph 9(d) of

the Settlement Agreement shall receive a settlement payment solely from the Net Subclass Fund

1 By way of illustration only, if the total of Claims Administration Expenses, Class Counsel Fees, Plaintiffs’ Litigation Expenses, the California Labor & Workforce Development Agency’s (“LWDA”) share of the PAGA Payment, all taxes, all taxes arising from payments, and Class Representative Service Awards amounts to 40% of the total of the Gross Common Fund and the Gross Subclass Fund, then the Net Subclass Fund shall be 60% of the Gross Subclass Fund (i.e., $105,000).

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on an equal basis with all other participating members of the Subclass who submitted timely

claims and did not opt out of the settlement. By way of illustration only, if the Net Subclass

Fund is $100,000 and 60 Subclass Members submit authorized claims and do not opt out of the

settlement, each will receive a settlement payment of $1,666.66.

2. The distribution of the Net Subclass Fund shall be done in accordance with the

procedures described in Section III, Paragraph 14(b) of the Settlement Agreement.

3. The procedures set forth in Section III, Paragraph 14(i) shall not apply to the

payments to Subclass Members from the Net Subclass Fund. Instead, the procedures set forth in

this paragraph shall apply to the Subclass and the Net Subclass Fund. One hundred twenty (120)

days after the distribution of the Net Subclass Fund for the benefit of the Subclass, the Claim

Administrator will send a neutral reminder to any Authorized Claimants within the Subclass who

have not already cashed their checks to do so. The Claims Administrator will cooperate in

reissuing checks to any Subclass Members who need a new check; however, if a check remains

uncashed one hundred eighty (180) days after distribution of the Net Subclass Fund for the

benefit of the Subclass, the check shall be null and void, and shall not be reissued unless

mutually agreed upon by Class Counsel and Defendant’s Counsel. One hundred eighty (180)

days after the distribution of the Net Subclass Fund for the benefit of the Settlement Class,

should any amount remain in the Net Subclass Fund, such amount shall be added to the residue,

if any, of the Net Common Fund. The residue of the Net Common Fund shall then be distributed

to the Settlement Class, but not Subclass Members, in accordance with the procedures set forth

in Section III, Paragraph 14(i) of the Settlement Agreement. Members of the Subclass shall not

be entitled to a second distribution of residue funds under Section III, Paragraph 14(i) of the

Settlement Agreement.

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4. The Class Representative Service Awards, as defined in Section I, Paragraph 10

of the Settlement Agreement and subject to the Court’s approval, shall be $20,000 each for

Plaintiffs Kyra Groves and Catherine Hammons, as well as Related Action Plaintiffs Paul

Taylor, Sarah Lozano, Timothy Hearl, and Mimi Hayes; $5,000 each for Plaintiffs Timothy

Pierce and Javier Cortez; and $1,000 each for Plaintiffs Donna Burks and Seth Blackham.

Payment of such Class Representative Service Awards shall be made in accordance with the

procedures described in Section III, Paragraph 14(e) of the Settlement Agreement. The

foregoing Class Representative Service Awards shall be deducted pro rata from the Gross

Common Fund and the Gross Subclass Fund.

5. Class Counsel and counsel for the Related Action Plaintiffs have disclosed that

they have entered into a fee sharing agreement under which any attorneys’ fees recovered from

the settlement will be divided as follows: 83.5% of awarded fees to Lichten & Liss-Riordan P.C.;

8.25% of awarded fees to The Arns Law Firm; and 8.25% of awarded fees to The Graves Firm,

APC. Defendant agrees not to oppose the requested division of attorneys’ fees so long as the

total attorneys’ fees awarded does not exceed the amount requested in the Settlement Agreement

and is otherwise consistent with the Settlement Agreement terms and this amendment thereto. In

addition, Class Counsel and counsel for the Related Action Plaintiffs intend to request litigation

expenses which shall not exceed $30,000 for Class Counsel and $10,000 for each Related Action

Counsel (a total of $50,000). Defendant has agreed not to oppose requests up to these amounts.

The foregoing attorneys’ fees, costs and expenses shall be deducted pro rata from the Gross

Common Fund and the Gross Subclass Fund. Nothing in this Amendment shall increase the

amount that Defendant may be required to pay under the terms of the Settlement Agreement.

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6. Release of Claims by Related Action Plaintiffs.

(a) As of the Effective Date, for and in consideration of the mutual promises

contained herein, and contingent upon final approval of the Settlement Agreement and this

Amendment No. 1 thereto, the Related Action Plaintiffs, individually and on behalf of each of

his or her heirs, estates, trustees, executors, administrators, representatives, agents, successors

and assigns, and anyone claiming through him, her, or them, or acting or purporting to act on his,

her, or their behalf (collectively the “Related Action Plaintiff Releasors”), fully and finally

release, relinquish and discharge the Releasees (as defined in the Settlement Agreement) from

the “Related Action Plaintiffs’ Released Claims” (as defined below) based on claims arising on

or before May 9, 2019, including a California Civil Code 1542 waiver as to such Related Action

Plaintiffs’ Released Claims. The Related Action Plaintiffs’ Released Claims being released

pursuant to this Paragraph are defined as: any and all claims, suits, debts, liabilities, rights,

demands, obligations, guarantees, costs, expenses, attorneys’ fees and costs, damages, penalties,

prejudgment interest, actions, or causes of action of whatever kind, description or nature,

whether known or unknown, existing or potential, recognized now or hereafter, expected or

unexpected, which the Related Action Plaintiffs Releasors have ever had, or hereafter may claim

to have against the Releasees or any Releasee based on claims arising on or before May 9, 2019,

pursuant to any theory of recovery (including without limitation, any claims based in contract or

tort, common law or equity, federal, state or local law, statute, ordinance or regulation, any

claims for compensatory, consequential, punitive or exemplary damages, statutory damages,

penalties, interest, attorneys’ fees, costs or disbursements) and for any type of relief that can be

released as a matter of law, including without limitation, claims for unpaid compensation, wages

(including claims for minimum wage, regular wages, overtime, final wages, calculation of the

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correct overtime or regular rate, pay information, payment dates, and meal period and rest period

premiums), missed meal breaks, missed rest breaks, time-shaving, wage statements, business

expense reimbursement, erroneous recordkeeping or paperwork, misclassification, improper tip

pooling, unpaid costs, litigation costs, penalties (including civil and waiting time penalties),

damages, liquidated damages, punitive damages, restitution, equitable relief, interest, or

attorneys’ fees, with the exception of any claims which cannot be released as a matter of law.

The “Related Action Plaintiffs’ Released Claims” further include, but are not limited to, the

Settlement Class Members’ Released Claims, as well as any other claims under any provision of

the federal Fair Labor Standards Act, 29 U.S.C. section 2012, et seq., all as amended; any state,

county or city law, ordinance, rule or regulation regarding wages or compensation, all as

amended, including but not limited to the California Labor Code (including sections 132a, 200 et

seq., 500 et seq., 1174, 1194, 1194.2, 1197, 1198, 2753, 2802, 2804, 2699 et seq., 4553 et seq.),

any applicable California Industrial Welfare Commission Wage Orders; any claims for employee

benefits under any state or federal law, including without limitation, any claims under the

Employee Retirement Income Security Act of 1974, 29 U.S.C. section 1001 et seq., as amended;

any claims of discrimination on any basis under any state or federal law, including without

limitation, any claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000 et

seq.; the Civil Rights Act of 1866, 42 U.S.C. section 1981, the Civil Rights Act of 1991, the

Americans with Disabilities Act, 42 U.S.C. section 12101 et seq., the Family and Medical Leave

Act of 1993, the Age Discrimination in Employment Act of 1967, as amended; the California

Fair Employment and Housing Act, California Government Code section 12940 et seq., the

Unruh Civil Rights Act, California Civil Code section 51 et seq., the U.S. or California

Constitutions, or the Employee Retirement Income Security Act of 1974, 29 U.S.C. section 1001

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et seq., as amended; and all of their implementing regulations and interpretive guidelines, or any

other federal, state, county or city law or ordinance, all as amended. The “Related Action

Plaintiffs’ Released Claims” also include, but are not limited to, any and all claims for attorneys’

fees, costs, or disbursements incurred by Related Action Counsel or any other counsel

representing the Related Action Plaintiffs or Settlement Class Members, or by the Related Action

Plaintiffs Releasors or Settlement Class Members Releasors, or any of them, in connection with

or related in any manner to the Litigation, the Settlement of the Litigation, the administration of

such Settlement and/or the Released Claims, except to the extent otherwise specified in the

Settlement Agreement or this Amendment thereto.

(b) With respect to the above Related Action Plaintiffs’ Released Claims, the Related

Action Plaintiffs expressly waive any rights or benefits available to them or to the Related

Action Plaintiff Releasors under the provisions of Section 1542 of the California Civil Code and

all similar federal or state laws, rights, rules or legal principles of any other jurisdiction that may

be applicable herein with regard to any and all claims arising on or before May 9, 2019. The

Related Action Plaintiffs expressly acknowledge that they are familiar with Section 1542 of the

California Civil Code and understand fully the statutory language of California Civil Code

section 1542, which provides as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

The Related Action Plaintiffs expressly acknowledge that they may hereafter discover claims

presently unknown or unsuspected or discover facts in addition to or different from those which

they now know or believe to be true with respect to matters released herein. Nevertheless, the

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Related Action Plaintiffs acknowledge that a portion of the consideration received herein is for a

release with respect to unknown damages and complaints, whether resulting from known injuries

and known consequences or from unknown injuries or unknown consequences of known or

unknown injuries. With this understanding, the Related Action Plaintiffs state that they

nevertheless elect to, and do, assume all risks for claims that have arisen, whether known or

unknown, which they ever had, or hereafter may claim to have, on or before May 9, 2019 and

specifically, knowingly, and voluntarily waive and relinquish, to the fullest extent permitted by

law, all rights, benefits and provisions that they may otherwise may have under California Civil

Code section 1542.

(c) The Related Action Plaintiffs also expressly acknowledge that they are familiar

with and have sought advice with regard to principles of law such as California Civil Code

section 1542 and specifically, knowingly, and voluntarily waive and relinquish, to the fullest

extent permitted by law, all rights, benefits and provisions that they may otherwise may have

under all similar federal or state laws, rights, rules, or legal principles of any other jurisdiction

that are similar to California Civil Code section 1542 and may be applicable herein.

(d) Each Related Action Plaintiff further acknowledges, agrees and understands that:

a) he or she has read and understands the terms of this Agreement; b) he or she has been advised

in writing to consult with an attorney before executing this Agreement; c) he or she has obtained

and considered such legal counsel as he or she deems necessary; and d) he or she has been given

the opportunity to consider whether or not to enter into this Agreement.

(e) Each Related Action Plaintiff further acknowledges, agrees and understands that

he or she is expressly, knowingly, and voluntarily waiving and relinquishing, to the fullest extent

permitted by law, all rights or claims arising under the Age Discrimination in Employment Act

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of 1967 and all rights and claims arising under the Fair Labor Standards Act based on claims

arising on or before May 9, 2019.

(f) As of the Effective Date (as defined in the Settlement Agreement), the Related

Action Plaintiffs agree to hold harmless and covenant not to sue each and all of the Releasees

from each and all of the Related Action Plaintiffs’ Released Claims and Settlement Class

Members’ Released Claims based on claims arising on or before May 9, 2019. The Related

Action Plaintiffs further agree that they shall not now or hereafter initiate, maintain, or assert any

Related Action Plaintiffs’ Released Claims or Settlement Class Members’ Released Claims

based on claims arising on or before May 9, 2019 against the Releasees in any other court action

or before any administrative body, tribunal, arbitration panel or other adjudicating body.

(g) Within ten (10) days of the Effective Date, each Related Action Plaintiff shall

take all steps necessary to dismiss any and all actions that he or she has filed against Defendant

involving the Related Action Plaintiffs’ Released Claims and/or Settlement Class Members’

Released Claims, including all of the Related Actions, and the Related Action Plaintiffs and

Defendant shall cooperate to obtain such dismissals. The dismissals shall be with prejudice with

regard to any Related Action Plaintiffs’ Released Claims or Settlement Class Members’ Released

Claims and without prejudice with regard to any claims arising after May 9, 2019. Nothing in

this Amendment shall release claims based on Related Action Plaintiffs’ use of the Instacart

platform after May 9, 2019. In advance of the dismissals, Defendant and the Related Action

Plaintiffs shall cooperate to request stays of all pending litigation involving the Related Action

Plaintiffs’ Released Claims and Settlement Class Members’ Released Claims, including all

Related Actions.

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7. No Interference. Nothing in the Settlement Agreement or in this Amendment (a)

is intended to waive claims which cannot be waived by private agreement or which may arise

after any Named Plaintiff or Related Action Plaintiff signs this Amendment; or (b) prevents any

Named Plaintiff or Related Action Plaintiff from filing a charge or complaint with, or from

participating in, an investigation or proceeding conducted by a government agency. In

particular, nothing in the Settlement Agreement or in this Amendment (i) shall be construed to

prevent the disclosure of factual information related to any alleged acts of sexual assault, sexual

harassment, workplace harassment or discrimination based on sex, failure to prevent an act of

workplace harassment or discrimination based on sex, or act of retaliation against a person for

reporting harassment or discrimination, (ii) waives Named Plaintiffs or Related Action Plaintiffs

right to testify in an administrative, legislative, or judicial proceeding concerning any alleged

criminal conduct or alleged sexual harassment on the part of the Releasees, or on the part of the

agents or employees of any of the Releasees, when any Named Plaintiff or Related Action

Plaintiff has been required or requested to attend such a proceeding pursuant to a court order,

subpoena, or written request from an administrative agency or the legislature, (iii) prevents any

Named Plaintiff or Related Action Plaintiff from communicating with, filing a charge or

complaint with, or from participating in an investigation or proceeding conducted by the Equal

Employment Opportunity Commission, National Labor Relations Board, Securities and

Exchange Commission, or any other any federal, state, or local agency charged with the

enforcement of any laws, including providing documents or any other information, (iv) or limits

any Named Plaintiff or Related Action Plaintiff from exercising rights under Section 7 of the

NLRA to engage in protected, concerted activity with other employees, although Named

Plaintiffs and Related Action Plaintiffs are waiving rights to individual relief with regard to

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claims arising on or before May 9, 2019 (including backpay, frontpay, reinstatement or other

legal or equitable relief) in any charge, complaint, or lawsuit or other proceeding brought by

themselves or on their behalf by any third party, except for any right any Named Plaintiff or

Related Action Plaintiff may have to receive a payment or an award from a government agency

(and not from Defendant or any of the Releasees) for information provided to the government

agency or otherwise where prohibited.

8. Reasonableness of Settlement:

(a) The Parties believe that this is a voluntary, fair, reasonable and adequate

Settlement and that the Parties have arrived at this Settlement in good faith, through arms-length

negotiations, based upon adequate information, taking into account all relevant factors, present

and potential, and after consultation with experienced legal counsel.

(b) The Named Plaintiffs, Class Counsel, the Related Action Plaintiffs, and their

counsel acknowledge that an adequate factual basis exists to support the Settlement and that they

hereby waive any right to conduct further discovery to assess or confirm the Settlement.

(c) The Named Plaintiffs, Class Counsel, the Related Action Plaintiffs and Related

Action Counsel have concluded that the Settlement as amended constitutes a fair, reasonable and

adequate resolution of the claims that the Named Plaintiffs have asserted against Defendant,

including the claims on behalf of the Settlement Class and Subclass. The Named Plaintiffs,

Class Counsel, Related Action Plaintiffs and their counsel have also concluded that the

Settlement as amended promotes the best interests of the Settlement Class.

(d) Related Action Plaintiffs represent that they shall not themselves opt out of or

object to the settlement of the Litigation, and Related Action Plaintiffs and Related Action

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Counsel warrant and represent that they shall not encourage or take any action to cause others to

opt out of or object to the settlement of the Litigation.

9. Amended Class Notice: An amended Notice attached hereto as Exhibit A1 shall

be substituted for the proposed Notice attached to the Settlement Agreement as Exhibit A.

IT IS SO AGREED.

NAMED PLAINTIFFS

Dated: , 2019KYRA GROVES, Plaintiff

Dated: , 2019CATHERINE HAMMONS, Plaintiff

Dated: , 2019TIMOTHY PIERCE, Plaintiff

Dated: , 2019JAVIER CORTEZ, Plaintiff

Dated: , 2019DONNA BURKS, Plaintiff

Dated: , 2019SETH BLACKHAM, Plaintiff

MAPLEBEAR, INC. dba INSTACART

Dated: , 2019

By

Name:

Title:

August 15

8/15

August 15

August 15

AUGUST 15TH

August 16

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RELATED ACTION PLAINTIFFS

Dated: , 2019

PAUL TAYLOR, Related Action Plaintiff

Dated: , 2019

SARAH LOZANO, Related Action Plaintiff

Dated: , 2019

TIMOTHY HEARL, Related Action Plaintiff

Dated: , 2019

MIMI HAYES, Related Action Plaintiff

APPROVED AS TO FORM,

CLASS COUNSEL

Dated: , 2019 LICHTEN & LISS-RIORDAN, P.C.

By SHANNON LISS-RIORDAN ADELAIDE PAGANO

Attorneys for Plaintiffs

DEFENDANT’S COUNSEL

Dated: , 2019 KEKER, VAN NEST & PETERS LLP By

RACHAEL E. MENY BENJAMIN BERKOWITZ RYAN WONG ERIN E. MEYER JULIA L. ALLEN Attorneys for Defendant

DocuSign Envelope ID: FA2D838F-B023-4C34-ABB3-AD2BCD62ABF8

8/15/2019

13 1340391


Dated: , 2019


Dated: , 2019


Dated: , 2019


Dated: , 2019



CLASS COUNSEL







DocuSign Envelope ID: 0E7A9DE1-3C54-45C6-A69A-C358E5C2A8CA

8/15/2019

13 1340391


Dated: , 2019


Dated: , 2019


Dated: , 2019


Dated: , 2019



CLASS COUNSEL







DocuSign Envelope ID: AF834B2C-2BFA-4427-827D-71027042BEAE

8/15/2019


Dated:

Dated:

Dated:

Dated:


CLASS COUNSEL

2019

2019

2019

2019

Dated: 2019 ------�

DEFENDANT'S COUNSEL

Dated: August 15 2019 -------

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MIMI HA YES, Related Action Plaintiff

LICHTEN & LISS-RIORDAN, P.C.

By ____________ _ SHANNON LISS-RIORDAN ADELAIDE PAGANO


KEKER, VAN NEST & PETERS LLP

By ____________ _ RACHAEL E. MENY BENJAMIN BERKOWITZ RYAN WONG ERIN E. MEYER JULIA L. ALLEN Attorneys for Defendant

13

jselby

Ben Berkowitz

RELATED ACTION PLAINTIFFS'COLINSEL

ft tr/ / 0túotg The Graves Firm, P.C.

ALLEN S

Attorneys for Related Action Plaintiff Taylor

20t9 The Arns Law Firm, P.C.

ROBERT ARNSAttomeys for Related Action Plaintiffs Lozano,Hayes and Hearl

Dated

Dated:

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groves, et al. v. maplebear, inc. d/b/a instacart · taylor, sarah lozano, timothy hearl, and mimi...

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