Judge: Peter Wilson, Case: 2021-01184589, Date: 2022-07-28 Tentative Ruling
The hearing on the Motion for Preliminary Approval is CONTINUED to August 25, 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.
The parties are reminded to properly bookmark their filings.
As to the Settlement
1. The Settlement identifies this action and the Lucero Action as two separate cases and there is no reference to any consolidated complaint. The Stipulation to file the operative Second Amended Complaint in this action requires dismissal of the Lucero Action (ROA 54, ¶8) but this requirement is not included in the Settlement. Further, the Class Notice does not explain that this Settlement was meant to include two separate lawsuits. This may be confusing if a Class Member seeks additional information or reviews documents regarding this case. The parties should consider whether to include reference to the Second Amended Complaint and dismissal of the Lucero Action in the Settlement.
2. The Release provisions should be redrafted so that there is a separate release of the PAGA claims. As drafted, a Class Member who opts out will not be able to distinguish what claims are still released or the time frame for the release. Additionally, this definition of Released Claims is overbroad because it is not limited to the factual allegations in the operative Complaints and/or PAGA Notices and because there is no modifier before “related to”. (Amaro v. Anaheim Arena Mgmt., LLC (2021) 69 Cal. App. 5th 521, 538 [release must have a “reasonable connection” to the allegations in the complaint and “release must be tied to the factual allegations, not the claims or theories of liability asserted”].)
3. There is no provision to extend the deadline for submitting disputes for re-mailed Notice Packets. Settlement, ¶¶7.2 and 8.9. Was this intentional?
4. Paragraphs 7.2 and 8.9 of the Settlement conflict regarding who makes the final decision on disputes. Paragraph 7.2 provides that the Settlement Administrator makes the final decision while paragraph 8.9 provides that the Court has the right to review the Settlement Administrator’s decision. The latter should prevail.
5. The Settlement should be revised so that the parties should file with the Court all disputes submitted by class members, the evidence submitted, and the resolution of those disputes. Although the Settlement Administrator may make the initial decision, the Settlement should be revised so that the Court shall have the right to review any decision made by the settlement administrator regarding a claim dispute.
6. When it comes to disputes regarding workweeks or the amount of the Individual Settlement Share, why should there be a presumption in favor of Defendants’ records? Settlement, ¶8.9.
7. 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.
8. 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.)
9. 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).)
10. 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.
Issues re Class Notice
1. The Class Notice is to be revised consistent with the issues addressed above.
2. Does notice need to be translated to any language other than English? The Settlement Administrator’s bid shows that a certified Spanish translation is not included. ROA 80, Melmed Decl., Ex. E, p. 1. But did the parties consider whether the Class Notice required any translations?
3. The caption of the Class Notice should also reflect that this is a PAGA settlement.
4. The Class Notice states that the Settlement Administrator will make the “final decision” on disputes. Class Notice, p. 6:26. The Class Notice also provides that if a Class Member is dissatisfied with the Settlement Administrator’s decision, the Class Member may submit an objection. These provisions are not consistent with the Settlement.
5. Section 5 “The Release of Claims” has the same issues regarding the Release as indicated above.
6. While the Class Notice advises that Class Members cannot opt out of the PAGA Notice, it does not explain that Class Members cannot opt out of the release of their PAGA Claims.
7. The Class Notice does not explain what will happen if a request for exclusion and a dispute are submitted, even though this is set forth in the Settlement. Settlement, 7.3.
8. The Class Notice does not make it clear that objections may be made by either (1) submitting written objections, or (2) by appearing in person or through an attorney at the Final Approval hearing.
9. The Class Notice should remove the reference to providing “legal support” for the objections. Class Notice, p. 9:24-25. The Settlement does not require objecting Class Members to provide “legal support”.
10. The Class Notice indicates the Settlement Administrator has a choice in posting the order and final judgment on its website. Class Notice, p. 11:3. But the Settlement requires the Settlement Administrator to post the order and final judgment. Settlement, ¶7.5
11. The Class Notice should advise when the settlement checks will become invalid.
12. The Class Action Settlement Share Form only provides the estimate for the Individual Settlement Share. Will the estimated individual PAGA Settlement Share be provided, and if so, where?
13. The Request for Exclusion Form states that if the Class Member submits the form, the Class Member “will not be bound by the release set forth in the Settlement Agreement”. The Request for Exclusion does not explain that if the Class Member is an aggrieved employee, that Class Member cannot exclude himself or herself from releasing the PAGA claim.
Issues re Proposed Order
1. The proposed order is to be revised consistent with the issues addressed above.
2. The attorney contact information should be removed from the caption page.
3. The caption should reflect that this is also a PAGA Settlement.
4. Paragraph 2 should make it clear that the Court is preliminarily finding the Class should be certified for settlement purposes only.
5. Paragraph 7 is redundant.
6. The Release in paragraph 10 needs to be revised for the reasons explained above.
7. The proposed Order should include a statement indicating that the procedure for disputes is approved and include the deadline for submitting disputes.
8. The proposed Order should include reference to the extended deadline for re-mailed notice packets.
9. The deadline for objections in paragraph 4 of the implementation schedule should state that it applies to written objections. The implementation schedule should also state that Class Members may also object by appearing at the Final Approval hearing in person or through counsel.
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.