Judge: Peter Wilson, Case: 2019-01117310, Date: 2022-08-18 Tentative Ruling

The hearing on the Motion for Preliminary Approval is CONTINUED to September 29, 2022 at 2:00 p.m. in department CX102 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.

Further, the parties are reminded to properly bookmark their filings.

As to the Settlement

1.    Defendant and its counsel need to submit a declaration that they do not have any interest in the cy pres recipient.

2.    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.)

3.    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; California Rules of Court, rule 3.769(b).) 

4.    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. 

5.    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.   

6.    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.

Issues re Class Notice 

7.    The Notice states that it is being provided in English and Spanish. The Spanish version needs to be provided to the court.

8.    The title of the Notice should also state it is a PAGA Settlement.

9.    The Notice advises that if a Request for Exclusion and a Dispute are submitted, the Request for Exclusion will be invalid. Class Notice, pp. 4-5. The Request for Exclusion should govern.

10. In the last paragraph on page 4, the statement explaining the effects of being excluded should include that no claims are released.

11. The requirement for legal or factual support for the objection is unnecessary. The objecting Class Member need only provide a concise statement of the reasons for the objection.

12. The Notice should more conspicuously state that if the settlement is approved, aggrieved employees are bound by the settlement, will receive their PAGA payment, and will be bound by the PAGA release, regardless whether they excluded themselves from the settlement.

13. The Notice as read with the Notice of Settlement Award is confusing regarding settlement payments. The “Calculation of Settlement Class Members Individual Settlement Payments” and “Individual Settlement Payments to Settlement Class Members” (on page 3 of the Notice), and the estimated “Individual Settlement Payment” referenced in the Notice of Settlement Award blur Class and PAGA payments. What is meant by “which is already included in the value of the Individual Settlement Payment”? Both documents need to more clearly distinguish payments to class members versus payments to aggrieved employees.

14.  

Issues re Proposed Order

15. The title of the proposed Order should indicate this is also a PAGA Settlement.

16. The proposed Order should include the definition for PAGA Members.

17. The implementation scheduled should include the deadline for re-mailed notice packets.

18. The proposed Order should include the preliminarily approved disbursements.

Plaintiff is ordered to give notice, including to the LWDA. Any supplemental brief and/or amendments made pursuant to this Order should also be filed with LWDA along with notice of the continued hearing date, with a proof of service submitted to the Court.

The status conference is off calendar as moot.