Judge: Glenda Sanders, Case: 30-2021-01212035, Date: 2023-01-05 Tentative Ruling
The hearing on the Motion for Preliminary Approval is CONTINUED to February 23, 2023 at 2:00 p.m. in department CX101 to permit the parties to respond to the following issues. A supplemental briefing shall be filed at least 9 days before the continued hearing and respond where necessary to the points raised below. Redlined versions of the revised proposed Class Notice and proposed order are to be provided. If required, an amendment to the settlement agreement is directed, rather than “amended settlement agreement”, to avoid use of limited Court time and resources.
As to the Settlement
1. The Settlement indicates there are 185,519 Class Members but the Yanchunis Declaration indicates there are 243,160 Class Members. Compare Settlement, §III.1 and ROA 109, Yanchunis Decl., ¶27. How many total Class Members are estimated? How many total Subclass Members are estimated?
2. Why are Tier One Claims limited to the California Subclass? How did the parties determine that $1.25 million was an appropriate amount to fund the Tier One Claims?
3. How did the parties determine that a cap of $5,000 for out-of-pocket damages and $175 was reasonable and appropriate? How did the parties determine that $750,000 was an appropriate amount to fund the Tier Two Claims?
4. Is there a deadline when Defendant must have the injunctive relief requirements in place? How will Class Counsel ensure that Defendant meets the injunctive relief requirements?
5. The release is very broad and is not reasonably limited to claims arising from facts alleged in the complaint or the Data Breach because the release uses the terms “relating to or in connection with”. As a result, as currently drafted the Civil Code § 1542 is overly broad.
6. How would the payments be characterized for tax purposes?
7. The Court’s preferred response deadline for opt outs and objections is 60 days. Why should this time be shortened to 50 days?
8. Why must a request for exclusion be mailed to the Settlement Administrator when the Claim Form must be submitted online?
9. This procedure for objections must be revised. The objections should be provided to the Settlement Administrator, not filed with the Court and served on Counsel. The Settlement Administrator will then provide copies of the objections to Counsel and Counsel will submit the objections to the Court with the Final Approval papers. Additionally, objectors need only provide a concise statement for the reasons for the objection, not legal authority, or the name of counsel, agreements, documents or witnesses.
10. With the motion for final approval, Plaintiff must present a full report to the Court on all exclusions and objections received. The Court will consider any objections at the final approval hearing.
11. Why should the Plaintiff’s enhancement award be taken out of the Tier Two Fund? ROA 109, Yanchunis Decl., ¶53 fn. 3.
12. The Court will determine the appropriate amount of Plaintiff’s enhancement at final approval. At final approval, Plaintiff should submit a declaration addressing the factors set forth in Golba v. Dick’s Sporting Goods, Inc. (2015) 238 Cal.App.4th 1251, 1272 and Clark v. Am. Residential Servs. LLC (2009) 175 Cal.App.4th 785, 804, including an estimate of the hours spent on this litigation.
13. Although the Class Notice includes amounts requested for attorney fees, costs and the settlement administration (ROA 109, Yanchunis Decl., Ex. 2a, §6), the moving papers did not include information about these amounts. Information about these requested disbursements and why the amounts are reasonable and appropriate should be provided. The Court also notes that requested fee for the settlement administration is greater than the $200,000 to be funded by Defendant per the Settlement.
14. The Court has wide discretion on assessing the reasonableness of fees, including basing fees on the percentage of fund method, conducting a lodestar cross-check on a percentage fee, or foregoing a lodestar cross-check and using other means to evaluate the reasonableness of a requested percentage fee. (Laffitte v. Robert Half Intern. Inc. (2016) 1 Cal.5th 480, 506.)
15. At final approval Counsel should provide billing records in support of its fees and documentation of its costs. Further, Plaintiff’s counsel must disclose whether they have any fee-splitting arrangement with any other counsel, or confirm none exist. (Barnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler (2012) 212 Cal.App.4th 172, 184; Cal. R. Ct. 3.769(b).)
16. The Settlement Administrator’s website must include the operative Complaint, the Settlement and any amendments, the Class Notice and Forms, the Orders Granting Preliminary and Final Approval and the Final Judgment.
17. Along with the motion for final approval, the settlement administrator should provide an estimated high and low for individual settlement payments, along with Plaintiff’s individual payouts.
18. The Settlement provides that at Final Approval, the Court will “dismiss the action with prejudice”. Settlement, §VIII.2.d. This is prohibited under CRC Rule 3.769(h).
Issues re Class Notice and Forms
1. The short and long form Class Notices are to be revised consistent with the issues addressed above.
2. On page one of the long form Class Notice, it indicates that up to $125 for Attested Time is in addition to the $5,000 out-of-pocket expenses but in section 6.B it appears that the $125 is included in the $5,000 out-of-pocket expenses.
3. Sections 6.A and 6.B of the long form Class Notice are a little difficult to follow, particularly the explanation about when Tier One funds will fund Tier Two and when Tier Two funds will fund Tier One. The parties are to try to provide a simpler explanation.
4. The long form Class Notice indicates that an Exclusion Form can be downloaded from the Settlement website. The Exclusion Form should be submitted to the Court for approval.
5. The department should be updated in Section 19 of the long form Class Notice.
6. The long form Class Notice should also explain how to access documents from the court’s website.
7. The Claim Form implies that the up to $175 for Attested Time is in addition to the $5,000 out-of-pocket expenses but the Settlement indicates it is included in the $5,000 out-of-pocket expenses.
8. The Claim Form indicates payment will be made electronically, or by check if requested. How will the electronic payments be made? Paypal, Venmo, Zelle?
9. The Claim Form indicates the only way to return it is online. The Claim Form cannot be returned by mail?
10. The term “fairly traceable” is used numerous times in the Claim Form but that term is not defined.
Issues re Proposed Order
1. The proposed order is to be revised consistent with the issues addressed above.
2. The attorney information should be removed from the caption page.
3. The correct department should be updated on the caption page.
4. The Settlement, Class Notices, Claim Forms, and Exclusion Form should be attached to the proposed order as exhibits. Certified Spanish translations of the Class Notices, Claim Forms, and Exclusion Form should also be attached as Exhibits.
5. The preliminarily approved disbursement amounts should be included in the proposed Order.
6. The parties should propose a date for final approval. Final Approval hearings are held on Thursdays at 2:00 p.m. The moving papers should be submitted at least 16 court days prior to the hearing and any opposition and reply will be due per Code based on the hearing date.
Plaintiff is ordered to give notice.