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DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Shaun Setareh (SBN 204514)

shaun@setarehlaw.com

Thomas Segal (SBN 222791)

thomas@setarehlaw.com

SETAREH LAW GROUP

9454 Wilshire Boulevard, Ste. 907

Beverly Hills, California 90212

Tel: (310) 888-7771

Fax: (310) 888-0109

Attorneys for Plaintiff,

MARCUS CHISM

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MARCUS CHISM, an individual on behalf of 

himself, all others similarly situated,

Plaintiff,

v.

PEPSICO, INC, a North Carolina

Corporation; FRITO-LAY, INC a Delaware

Corporation; FIRST ADVANTAGE 

BACKGROUND SERVICES CORP, a Florida 

Corporation and DOES 1 to 100, inclusive,

 Defendants.

__________________________________

Case No. 3:17-cv-00152-VC

DECLARATION OF SHAUN SETAREH 

IN SUPPORT OF MOTION FOR 

PRELIMINARY APPROVAL OF CLASS 

ACTION SETTLEMENT 

Hearing Information

Date: April 26, 2018

Time: 10:00am.

Courtroom:

Judge:

4 17th Floor

Hon. Vince Chhabria

 

Case 3:17-cv-00152-VC Document 88-1 Filed 04/12/18 Page 1 of 6
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DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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DECLARATION OF SHAUN SETAREH

I, SHAUN SETAREH, declare as follows:

1. I am an attorney duly licensed to practice law in the State of California, and an 

attorney of record for Plaintiff Marcus Chism (“Plaintiff”) in his action against Frito-Lay, Inc.

(“Frito-Lay” or “Defendant”). Except for those matters stated on information and belief, which I 

am informed and believe to be true and correct, I have personal knowledge of all matters set 

forth herein. If called as a witness, I could and would competently testify thereto under oath.

Plaintiff’s Investigation and Discovery

2. On January 12, 2017, Plaintiff filed a putative class action lawsuit entitled Marcus

Chism v. Pepsico Inc, Case No. 3:17-cv-00152-VC, in the United States District Court for the 

Northern District of California. ECF No. 1. Plaintiff’s operative complaint alleges claims for 

violation of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq. and related 

California law claims. Plaintiff alleges that Frito-Lay used disclosure forms in connection with 

applications for employment that violated the FCRA by including extraneous information.

3. Data provided in connection with mediation indicates there are approximately 

38,588 settlement class members. However, once class members who released their claims in an 

earlier class action settlement are excluded the class size is estimated to be 38,174. 

4. The case has been prosecuted diligently for more than a year. Plaintiff’s 

counsel’s investigation included meeting with Plaintiff, conducting legal research and analysis 

of the applicable law as applied to the facts discovered regarding Plaintiff’s claims and the 

defenses thereto and analyzing Defendant’s potential liability exposure. 

5. As part of the investigation, Plaintiff’s counsel also has conducted a study and 

investigation of the law and facts relating to the claims that were asserted and that could have 

been asserted, as well as a study and investigation of the scope and identity of the settlement 

class, and has concluded, taking into account the benefits of this settlement, and the risks and 

delays of further litigation, as well as the strengths and weakness of Plaintiff’s claims and FritoLay’s defenses, that this settlement is fair, reasonable, and adequate, and in the best interests of 

the Plaintiff and all members of the classes affected by it.

6. Plaintiff’s counsel also reviewed Frito-Lay’s background check policies and the 

actual background check disclosure and authorization forms of those who applied for 

employment at Frito-Lay during the class period. The background check disclosure forms at 

issue are attached as Exhibit 1.

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DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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7. Plaintiff’s counsel thoroughly analyzed the evolving, and often conflicting case 

law governing FCRA class actions as well as other types of actions including the related Fair 

and Accurate Credit Transaction Act where “willfulness” and “proof of actual injury” are often 

disputed. All of this review and investigation allowed Plaintiff’s counsel to structure a 

settlement that provides benefits directly to the persons who were required to use the allegedly 

unlawful forms.

8. Plaintiff propounded Interrogatories and Requests for Production of Documents, 

to which Defendant responded. 

9. The first mediation session in this case occurred in San Francisco conducted by 

mediator Michael Dickstein on September 12, 2017. The case did not settle at that mediation.

10. On November 6, 2017, the parties participated in a second mediation session by 

video-conference. At both mediations, the parties extensively discussed their views of the 

strengths and weaknesses of the case including the merits and also the motion to compel 

arbitration and motion to transfer that were filed after the first mediation. After the second 

mediation, mediator Michael Dickstein made a mediator’s proposal which the parties accepted. 

11. Based on the information obtained through informal discovery, as well as the 

stage of the proceedings, Plaintiff and his counsel had sufficient information to intelligently 

evaluate Defendant’s potential exposure to the Class in view of the risks of continued litigation.

I believe that the proposed settlement is fair, reasonable and adequate.

The Parties Settled After Arm’s Length Discussions

12. The proposed Settlement was the culmination of discussions between the parties 

following a thorough analysis of the pertinent facts and law at issue. Plaintiff obtained formal 

and informal discovery including documents pertaining to background checks. Following these 

negotiations, the parties were able to reach an agreement on all material terms of the proposed 

relief to the class. Only after the parties had reached this agreement did they negotiate 

attorneys’ fees, costs and incentive awards. Ultimately, the parties reached an agreement on 

these terms as well, formalizing all terms in the Settlement Agreement. 

14. A true and correct copy of the Parties’ Settlement Agreement (“Settlement”) is 

attached hereto as Exhibit 2. 

15. A proposed Long Form Notice of Class Action Settlement is attached hereto as 

Exhibit 3.

16. A proposed Postcard Notice is attached hereto as Exhibit 4.

17. A proposed Request for Exclusion Form is attached hereto as Exhibit 5.

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DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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//

The Views of Experienced Counsel and Adequacy of Counsel

18. My firm and I, as a partner at Setareh Law Group, are well-experienced class 

action attorneys. I, along with the senior attorney assigned to this case, Thomas Segal, have 

considerable experience in class action litigation including employment and Fair Credit 

Reporting Act cases. I, along with my associates, do not have a conflict of interest with the 

class. Therefore, we are qualified to serve as class counsel for the settlement class.

19. I have been involved as lead or co-lead class counsel in numerous labor and 

employment cases. The following is a sampling of class actions in which I have been appointed 

as class counsel both for a settlement class and after a contested motion:

a. Fronda v. Staffmark, U.S. District Court, Northern District of California, Case No. 15-CV02315-MEJ (granted final approval in a case involving alleged uncompensated security 

checks for warehouse workers).

b. Ortiz v. Randstad., U.S. District Court, Nothernl District of California Case No. 13-CV05050-MMC (granted final approval in a case involving, among other things, failure to 

provide meal and rest periods).

c. Valencia v. SCIS Air Security Corp., Los Angeles Superior Court, Case No. BC421485 

(granted class certification through contested motion in case on behalf of former security 

workers based on late final wage payments in violation of Labor Code §§ 201–203).

d. Sandoval v. Rite Aid Corp., Los Angeles County Superior Court, Case No. BC431249 

(granted class certification through contested motion in case on behalf of former pharmacy 

employees based on late final wage payments in violation of Labor Code §§ 201–203; 

subsequently granted final approval of class action settlement).

e. Utne v. Home Depot, Northern District of California Case No. 3:16-cv-01854-RS (granted 

class certification through contested motion in case on behalf of retail store employees 

allegedly required to work off the clock).

f. Wilson v. TE Connectivity, Northern District of California Case No. 3:14-cv-04872-EDL 

(granted class certification through contested motion in case on behalf of manufacturing 

facility employees subject to auto-deduction of meal breaks).

20. The Setareh Law Group has been counsel in multiple actions alleging violation 

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of the standalone disclosure requirement of the FCRA. The litigation in these cases, and the 

varying results, provide Setareh Law Group with a good ability to assess the value of similar 

cases. The paragraphs below provide a non-exhaustive summary of that experience as relevant 

to the ability to assess the value of the settlement in this case.

21. Setareh Law Group is Class Counsel for the Settlement Class in the case of 

Burnthorne-Martinez v. Sephora USA, Inc., Northern District of California Case No. 4:16-cv02843. That case also involves allegations that the defendant in that case obtained background 

checks using disclosure forms that contained extraneous information. A motion for final 

approval is pending. The settlement was reached after a class certification motion and motion 

for summary judgment were fully briefed. The settlement consists of a non-reversionary 

settlement fund of $750,000 for 11,429 class members or $65.60 per class member.

22. Setareh Law Group is Class Counsel for the Settlement Class in the case of 

Garza v. Brinderson Constructors, Inc., Northern District of California Case No. 15-cv-05742-

EJD. That case also involves allegedly unlawful disclosure forms containing extraneous 

information. Preliminary approval has been granted in that case. The settlement was arrived at 

after a class certification motion was fully briefed. The settlement consists of a non-reversionary 

settlement fund of $1.5 million with approximately 12,818 class members of $117.02 per class 

member.

23. Setareh Law Group is putative class counsel for the proposed Settlement Class in 

a third FCRA standalone disclosure case in the Northern District of California which recently 

settled after a class certification motion was fully brief. Esomonu v. Omnicare, Inc., 4:15-cv02003-HSG. As the terms of that settlement have not been publically disclosed, they are not 

mentioned here. The case is mentioned as an example of Setareh Law Group’s experience in 

standalone disclosure cases.

24. The Brinderson and Sephora cases did not involve any arbitration agreements 

and in both cases some of the forms at issue contained unambiguous liability releases like the 

one in Syed v. M-I LLC, 853 F.3d 492 (9th Cir. 2017).

25. The Setareh Law Group has been involved as counsel in two standalone 

disclosure cases where summary judgment was granted in favour of the defendant. Those cases 

are Lewis v. Southwest Airlines, 2018 WL 400775 (N.D. Tex. January 11, 2018) and Gilberg v. 

California Check Cashing Stores, Inc., Eastern District of California Case No. 2:15-cv-02309-

JAM-AC (summary judgment granted June 13, 2017). Both are cases where the FCRA 

disclosure form contained extraneous information but not a Syed type liability release.

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DECLARATION OF SHAUN SETAREH IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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Settlement Class Period

26. The start date for the proposed settlement class is based on a two year statute of 

limitations. This is because of the impediment to class certification that a five year class would 

pose. Pursuant to 15 U.S.C. 1681p(2) a five year class applies when class members did not 

discover the alleged violation. A five year class would thus raise individualized inquiries into 

when class members realized a background check was pulled. The end dates of the proposed 

class correspond to when Defendant introduced new disclosure forms. After examining those 

forms, I concluded that Defendant had strong arguments that the forms are legally compliant.

Settlement Administration

27. The Setareh Law Group obtained bids from three settlement administrator. KCC 

LLC submitted the lowest bid. KCC is also an experienced and reputable settlement 

administrator.

I declare under the penalty of perjury of the laws of the United States that the foregoing 

is true and correct to the best of my knowledge. Executed April 12, 2018 at Beverly Hills, 

California.

___/s/ Shaun Setareh_______ 

SHAUN SETAREH

Declarant

Case 3:17-cv-00152-VC Document 88-1 Filed 04/12/18 Page 6 of 6