Judge: David S. Cunningham, Case: 21STCV35987, Date: 2022-09-15 Tentative Ruling
Case Number: 21STCV35987 Hearing Date: September 15, 2022 Dept: 11
LOS
ANGELES SUPERIOR COURT, COMPLEX CIVIL DEPARTMENT
CHECKLIST
FOR
PRELIMINARY
APPROVAL OF CLASS ACTION SETTLEMENT
Department:
SSC-11
RE:
Reyes v. Everytable, PBC, et al. (Case No. 21STCV35987)
In reviewing your motion
for preliminary approval of class action settlement, the Court orders further
briefing on the items checked below.
The additional briefing
shall be due by ____________________________________, 2022. Note: if briefing is not filed by said date
the hearing will be placed off calendar. Your hearing date set for ______________, is
continued to the first available date of
__________ at _____ in Department 11.
This checklist
provides direction on what information and argument the court requires to grant
a motion for preliminary approval of a class action settlement. All parties are urged to carefully review the
checklist and fully comply with each item that applies to the case in order
that the motion may be promptly ruled upon. The content of the motion should follow the
same order as this checklist, as that is how the judge and research attorney
review the motion.
You should also consider using the form wage and hour
settlement agreements now available on the court’s website at https://www.lacourt.org/forms/all – “Civil Forms” section.
With input and unanimous consensus from an Ad Hoc Wage and Hour
Committee (chaired by Judge Hogue and Judge Cunningham and comprised of 8
plaintiff’s attorneys and 8 defense attorneys), the court has posted: (1) a form class action settlement
agreement, (2) a form class action/PAGA settlement
agreement, (3) and a form PAGA settlement agreement. Using these
forms should cut down on attorney negotiation time and reduce the lag time
between a successful mediation and execution of a long form agreement. Filing a motion that is based on a form
agreement and includes a redlined copy identifying modifications will also
expedite the court’s review process and help reduce the current backlog on
hearings. These forms are encouraged but
entirely optional.
I.
MOVING PAPERS (Motion and Declarations)
All facts
submitted for the court to consider must be provided in the form of a
declaration or other admissible evidence. The court will not consider facts
stated only in the motion.
A. Introductory Information
¿ Summary
of the litigation, including identity of the parties, brief procedural history,
claims asserted, and general factual
basis for the claims.
B. Dunk/Kullar Analysis
¿ Summary
of the case, including the legal and factual basis for each claim. (Kullar
v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 133 (Kullar);
Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles (2010) 186
Cal.App.4th 399, 409.)
¿ Summary
of the investigation and discovery conducted, including the specific documents reviewed prior to agreeing
to settle the case. (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1802, as modified
Sept. 30, 1996 (Dunk).) If counsel’s analysis was informed by a data sample, show that the sample is
statistically reliable.
¿ Summary of settlement
negotiations, including when the settlement was reached, and
whether the
parties were assisted by a mediator. (Dunk, supra, 48 Cal.App.4th at p. 1802.)
¿ A
summary of the risks, expenses, complexity, and duration of further litigation
if the
settlement is not
approved.
¿ A
summary of the risks of achieving and maintaining class action status.
¿
Specific information sufficient for the court to make an independent
determination that the consideration being received for the release of class
members’ claims is reasonable in light of the strengths and weaknesses of the
claims and the risks of the particular litigation. (Kullar, supra, 168
Cal.App.4th at 129.) This discussion should specify the maximum realistic
recovery of each claim asserted in the operative complaint, defenses asserted
by Defendant, and any other relevant factors justifying the amount offered in
settlement. If the settlement is predicated on a payment plan or is predicated
on defendant’s financial situation, admissible evidence of Defendant’s
financial situation should be provided, including appropriate financial
documents such as a balance sheet, statement of cash flows, profit and loss
statement, and the like.
¿ If
approval of the settlement of class claims is requested together with approval
of non-class claims (such as claims under the Labor Code’s Private Attorney
General Act (PAGA)) discuss why the amount allocated to the non-class claims is
fair to those affected. See Moniz v. Adecco USA, Inc. (2021) 72
Cal.App.5th 56, 77 (Moniz).
C. Class
Certification
¿ Numerosity:
Total number of members in the settlement class and number of members in each
sub-class (if applicable).
¿ Ascertainability:
The manner by which members of the class will be identified and when. (Noel
v. Thrifty Payless (2019) 7 Cal.5th 955.)
¿ Community
of Interest: Discuss specific facts showing that the proposed class
representatives have claims or defenses typical of the class and can adequately
represent the class. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429,
435.)
¿
Adequacy:
Class Counsel: A summary of Class Counsels’ experience
and a listing of all prior cases in which each named Class Counsel has been
approved by a court to act as lead or co-counsel. (See Dunk, supra, 48
Cal.App.4th at p. 1802.)
Class Representative(s): Provide evidence
that each proposed class representative has agreed to act as same and
understands his or her responsibilities.
(See Soderstedt v. CBIZ Southern California, LLC (2011) 197
Cal.App.4th 133, 155-156; Jones v. Farmers Ins. Exchange (2013) 221
Cal.App.4th 986, 998-999).
·
Provide a competent declaration from Plaintiff by which
the Court can ascertain her adequacy as a class representative.
D. Claim
Requirement (if applicable)
¿ If
class members are required to submit a claim to receive compensation, explain
why a claim form is necessary and either 1) provide an estimate of the
anticipated claims rate or 2) provide an explanation why a claims rate cannot
be provided.
¿ Provide
a detailed explanation why a “claims made” settlement is appropriate in this
case.
¿ Indicate
what actions class counsel will take to encourage claim submission.
¿ Explain
why the claims process is not so burdensome that relief would be inaccessible
to class members (if applicable).
E. Miscellaneous
¿ If appropriate, explain
why the settlement includes terms that are outside the scope of the operative
complaint. (Trotsky v. Los Angeles Fed. Savings & Loan Assn. (1975)
48 Cal.App.3d 134, 148.) If approval of settlement of a PAGA claim is
requested provide a copy of Plaintiff’s notice letter to the LWDA.
¿ If
notice will be given in English only, explain why this is sufficient.
¿ A
statement of any affirmative obligations to be undertaken by the class member
or class counsel and the reason for such obligations.
¿ Provide
information regarding any fee splitting agreement and whether the client has
given written approval. (Mark v. Spencer (2008) 166 Cal.App.4th 219;
Rules Prof. Conduct, rule 1.5.1; Cal. Rules of Court, rule 3.769.)
¿ Any
agreement that has injunctive relief against a class representative generally is
not appropriate in a class action case. Provide the authority and factual
reasons why this case is an exception. See Moniz, supra, 72 Cal.App.5th
at 84. (“[T]he preclusive effect of a prior judgment is determined by the court
in which it is asserted, not the court that rendered it.” (Fireside Bank
Cases (2010) 187 Cal.App.4th 1120, 1131 [115 Cal. Rptr. 3d 80].) )
¿ Explanation
as to why any class representative enhancement is reasonable, including what
the class representative did beyond the expected services of any class
representative. (Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles (2010)
186 Cal.App.4th 399, 412; Radcliffe v. Experian Information Solutions Inc.
(9th Cir. 2013) 715 F.3d 1157, 1165.) In PAGA settlements explanation should be
provided as to why an incentive award is appropriate.
SETTLEMENT AGREEMENT
The settlement
agreement should address the following:
A. The
Basics
¿ Class
definition. If a PAGA representative action is settled with a proposed Class
Settlement consider whether there should be separate definitions for Class
Members and Aggrieved Employees.
¿ Class
and Release Period: If the class and release periods extend beyond the preliminary
approval explain why this is appropriate.
B. Release
of Claims
¿ Scope:
The scope of any release given by class members must be defined with precision
and clarity. Any released claims not presented directly in the operative
complaint should be based on the facts alleged in the operative complaint. (See
Amaro v. Anaheim Arena Mgmt. (2021) 69 Cal. App. 5th 521, 537 and FN. 5;
Uribe v. Crown Building Maintenance Co. 70 Cal. App. 5th 986, 1005.)
· Why would it be
proper for the releases to encompass claims “of every nature and description
whatsoever including without limitation statutory, constitutional, contractual
or common law claims”? (¶¶ 1.29, 1.30) Wouldn’t that exceed the scope of the
complaint/PAGA letter?
¿ Class
cases which include a PAGA claim should have a separate release for the PAGA
claim tied to the facts alleged in the notice given to the LWDA. Id.
¿ If PAGA and Class
Settlement: The
Release should provide an explanation that released claims include all PAGA
claims that could have been premised on the facts alleged in the Plaintiff’s
Notice and aggrieved employees will release PAGA claims even if class members
request exclusion from the class. See Robinson v. Southern Counties Oil Co.
(2020) 53 Cal.App.5th 476.
·
The Notice should specifically explain that PAGA claims
will be released, and PAGA employees will be entitled to their portion of the
PAGA penalty, regardless of whether or not the Class Member opts out.
¿ A Civil
Code section 1542 waiver is generally not appropriate in a class action case as
to the putative class members (if applicable). Provide the authority and
factual reasons why this case is an exception. (Israel-Curley v. California
Fair Plan (2005) 126 Cal.App.4th 123, 129; Salehi v. Surfside III
Condominium Owners’ Assn. (2011) 200 Cal.App.4th 1146, 1159–1161.)
¿ Release
Effective Date: Indicate the point in time at which the release will be deemed effective
as to the absent class members. If the release will be effective before
settlement funds are paid, explain why this is in the best interest of the
class.
· Modify the
effective date of the releases (¶¶ 3.5.1, 3.5.2) to be the date on which
Defendant fully funds the settlement.
¿ Class
Data: If there are confidentiality provisions, explain why they are in the best
interest of the Class and whether they will impede Class Counsel’s ability to
discharge fiduciary duties.
C. Monetary Terms of Settlement
¿ Settlement
Amount: Indicate the amount of the gross settlement, how and when the
settlement will be paid, and information regarding
payment plan, if any. If a class claim is being settled with a PAGA claim the
amounts allocated should be separated and paid only to the aggrieved employees.
¿ Deductions
from the settlement fund: Indicate the amounts to be deducted from the gross
settlement for attorneys’ fees and costs, plaintiff incentive awards,
administrative costs, PAGA payment and allocation of award to LWDA and the
parties, and any other existing deductions.
¿ If
there are subclasses, explain why the monetary distribution is fair to each
subclass. Ensure there is a class representative who fits the definition of
each subclass.
¿
Information about how attorney fees will be calculated. The percentage method,
with or without a lodestar cross-check, may be used in common fund cases. (Laffitte
v. Robert Half Internat., Inc. (2016) 1 Cal.5th 480, 503.) In other cases,
counsel should fully brief how the fees are calculated.
¿ If
wages are involved, explain how Defendant’s share of taxes will be paid.
¿
Whether, and under what circumstances, amounts may revert to Defendant, and a
justification for such reversion (if applicable). (Cundiff
v. Verizon California, Inc. (2008) 167 Cal.App.4th 718, 728–729.)
¿ Payment
Formula: Amount and manner of distribution of the compensation to each class member,
including the estimated amount each class member will receive and the timeline
on which payments will be issued.
¿ Tax
allocation of settlement payments.
¿ Nature
of injunctive relief (if any), and valuation of such relief.
D. Notice Administration
The following
issues regarding notice administration should be addressed in the settlement
agreement. A copy
of the proposed notice must be attached to the settlement agreement as an
exhibit.
¿ Indicate
the administrator for the settlement and why the bid for administration is
fair.
¿ Provide
the qualifications and experience of the Administrator, including evidence that
the settlement administrator has procedures in place to protect the security of
class data and adequate insurance in the event of a data breach or defalcation
of funds.
¿
Indicate how/when the administrator will receive the class list.
¿
Indicate whether the list will be updated by the administrator prior to the initial
mailing by use of National Change of Address Registry.
¿ Provide
the deadline for the initial issuance of notice to class members.
¿ Ensure the
content of the notice complies with California Rules of Court, rule 3.766(d). In
wage and hour cases the notice should indicate the specific amount the class
member will receive and how that amount was calculated. A separate breakdown
for PAGA payments should be provided. The terms of the release(s) should be
reflected in the Notice.
· Also, provide information
regarding the check-cashing deadline and fund to which uncashed checks will be
directed on the Notice.
¿ Ensure
the notice accurately reflects the Court’s current social distancing procedures
for attendance at hearings and review of court files. (Counsel should check the
Court website for most current information.)
¿ Indicate
how and when payments will be processed.
¿ Indicate
how notices returned to the administrator as undeliverable will be handled.
¿Explain
how re-mailed notices, if any, will be handled. Will class members who receive
re-mailed notices be given an extended deadline to respond (i.e., opt-out,
object, and dispute workweeks)?
¿ Explain
how notice of any change of the date or location of the will hearing be given.
¿ Indicate
whether there will be a settlement website. If so, provide the URL.
¿ If
publication notice will be given indicate the timing, locations, and manner by
which publication notice will be disseminated.
¿
Explain how notice of final judgment will be given to the class. (Cal. Rules of
Court, rule 3.771(b)) (e.g. Posted on claims administrator’s website.)
E. Responses to Notice
¿ Description
of the procedures for submitting written objections, requests for exclusion,
claim forms (if applicable) and disputes to estimated payments.
¿
Indicate the deadline to submit objections, requests for exclusion, claim forms
(if applicable), and/or disputes to workweeks. Confirm the deadline is reasonable
and that class members who receive re-mailed notices will be given an extension.
¿ The
objection procedure the same as the opt-out procedure, with the only
requirement being that objections be mailed to the settlement administrator and
not filed with the court.
¿ Do not
include language indicating that class members may only be heard at final
approval if they have complied with all objection procedures or that they must
use specific language to request exclusion, or, if a specific procedure is
sought, explain why it is necessary. In
general, the court will hear from any class member who attends the final
approval hearing and asks to speak regarding his or her objection.
F. Cy Pres Distribution
¿ Indicate
the length of time from issuance for which settlement checks will remain valid.
¿ Identify
the fund to which uncashed checks will be directed and detail the steps that
will be taken to ensure compliance with Code of Civil Procedure section 384.
The Court’s Omnibus Trailer Bill of 2018 replaced the language of the prior
statutory distribution scheme under Code of Civil Procedure, section 384 with a
requirement that the Court re-open judgments following the final distribution of
funds to include the cy pres in the judgment and to include the unclaimed
amount, plus an unspecified amount of interest. Such information should be
actively contemplated/provided for within the current terms of the settlement.
¿ Explain
why the cy pres distribution fills the purposes of the lawsuit or is otherwise
appropriate. (State of California v. Levi Strauss & Co. (1986) 41
Cal.3d 460, 472; In re Microsoft I-V Cases (2006) 135 Cal.App.4th 706,
722; Nachshin v. AOL, Inc. (9th Cir. 2011) 663 F.3d 1034, 1038–1041; Dennis
v. Kellogg Co. (9th Cir. 2012) 697 F.3d 858, 865; Code Civ. Proc., § 384.)
¿
Provide declarations disclosing the interest or involvement (or lack thereof)
by any counsel or party in the governance or work of the cy pres recipient.
G. MISCELLANEOUS
¿ Assure the Settlement Agreement and Notice are
consistent and that the Settlement Agreement has been signed by all parties and
counsel. Carefully proofread both.
¿ The
Settlement Agreement and paperwork derivative thereof should not suggest that
the end result of court approval will be dismissal of the Action with prejudice
or entry of a Final Judgment and Order dismissing with prejudice all claims.
See
California Rules of Court, rule 3.769(h).
III. EXHIBITS TO
THE MOTION
¿
Provide proof of submission of the proposed settlement agreement to the LWDA.
(Lab. Code, § 2699, subd. (l)(2).)
¿ Include
a proposed Judgment, which should not include a dismissal or any findings not
contained in the Final Approval Order. (Cal. Rules of Court, rule 3.769(h).)
¿ All
exhibits should be bookmarked, as set forth in the Presiding Judge’s First
Amended General Order of May 3, 2019 re: Electronic Filing, available on the
Court website.
If the Settlement Agreement is modified pursuant to this
checklist, please submit both a red-lined copy showing changes made as well as
a final version signed by all parties. Do not submit an addendum in lieu of a
full amended settlement agreement including all operative settlement terms.
Modify notice to match any alterations to the Settlement
Agreement.
Date: ___________, 2022
_____________________________
JUDICIAL
OFFICER
