Judge: Peter Wilson, Case: 2021-01222521, Date: 2023-08-24 Tentative Ruling
The hearing on the Motion for Preliminary Approval is CONTINUED to November 9, 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. Were the moving papers served on the LWDA? If so, the proof of service on the LWDA must be filed with the Court.
2. The Settlement provides that the PAGA Notice letter will be amended to add claims for PAGA penalties under Labor Code 1194.2 and 204(b). Settlement, ¶V. What is the status of the amended PAGA Notice letter? If it has been served on the LWDA, a copy of the amended PAGA Notice letter must be submitted to the Court.
3. Does the estimated class size and workweeks during the Settlement Period exclude those covered by the settlement and release in Benjamin v. Lux Bus America Co., OCSC Case No. 30-2016-00870583 (Benjamin Action)?
4. The Class release is overly broad and should be limited to the claims that “reasonably” could have been alleged in the operative complaint. The use of the term “Litigation” is imprecise and the reference to the LWDA letters, including “future amendments to the PAGA administrative notice letters”, fails to adequately identify what claims are actually being released.
5. The PAGA release initially refers to the claims arising during the PAGA Settlement Period but later refers to claims arising during the Settlement Period. Based on these definitions for these defined terms, the release for some PAGA claims would be shorter than the release for other PAGA claims. Was this intentional? The PAGA release should also be limited to the claims that “reasonably” could have been alleged.
6. Does the extended deadline for remailed notices apply to Disputes? Although the extended deadline is referenced in Section IX.A which discusses Disputes, the Settlement expressly states the extended deadline applies to exclusions or objections but does not include Disputes.
7. With regard to Disputes, Defendant’s records should control unless the Class member submits contrary evidence and that evidence should not be limited to just paycheck stubs. Although Settlement Administrator may make the initial decision, the parties must submit all Disputes and related documentation to the Court and the Court will have the right to review the Settlement Administrator’s decision.
8. The Settlement Administrator’s Quote includes a static website. The website should post key documents, including but not limited to, as the operative complaint, the PAGA notice letters to the LWDA, the settlement and any amendments, the Class Notice, the Workweek Dispute Form, the Orders for Preliminary and Final Approval and the Final Judgment.
9. Are there any currently pending related or overlapping matters?
10. Section XVIII.B provides that any claim arising out of the Agreement will be resolved “solely and exclusively in the Superior Court of the State of California for the County of Los Angeles.” Was this intentional?
11. Section XVIII.G provides there are no third-party beneficiaries. This should not include State of California, which is the real party in interest on the PAGA claims.
Issues re Class Notice
12. The Class Notice is to be revised consistent with the issues addressed above.
13. Does the Class Notice need to be translated to any other language?
14. The definition of the Class in the Class Notice is not consistent with the definition in the Settlement. There is no mention of Benjamin Action or any explanation of who, what time frame or what claims are excluded because of the Benjamin Action.
15. The box on page 2 indicates objections may be submitted by mail or fax, but the Settlement appears to only permit mail. Settlement, § IX.B. Additionally, the box on page 2 does not advise that Class Members are permitted to orally object in person or through counsel at the Final Approval hearing.
16. The Class Notice leaves the time frame in the definition of the Class Member and aggrieved employee open-ended. If Defendant has not selected the Negotiated Class End Date before the Class Notice is distributed, the Class Notice must explain that the end date may change and why.
17. The Class Notice permits workweek disputes and exclusions to be submitted by mail or fax. Class Notice, §9, p. 4 [disputes], §13, p. 6 [exclusions]. The Class Notice appears to require objections to be submitted by mail only. Class Notice, §15, pp. 6-7. The Workweek Dispute Form appears to permit submission by mail only. The Settlement permits exclusion requests and objections to be submitted by mail only (Settlement, §§ IX.A, B and C) and does not identify how disputes may be submitted. What do the parties intend as the acceptable method(s) of submission for disputes, objections and exclusions?
18. Section 8, p. 4 should explain the individual PAGA payment is based on the pay periods worked during the PAGA Settlement Period, i.e. September 18, 2020 to the Negotiated Class End Date. Settlement, §§I.O and XVI.B.
19. Section 9, p. 4 indicates that the payment is based on the number of workweeks and pay periods worked between September 20, 2017 to ____. This is inaccurate since the individual class settlement is based on the number of workweeks worked between September 20, 2017 and the Negotiated End Date and the number of pay periods worked between September 20, 2020 and the Negotiated End Date. Settlement, §§ X and XVI.B.
20. Section 15, p. 7 confusingly states that Class members who fail to timely submit a written objection “or in person objection at the Final Approval Hearing may still object and/or comment on the Settlement in person and/or through counsel at the Final Approval Hearing.”
21. Section 16, p. 7 advises Class members that they can only object or request to be excluded but not both. The Class Notice should advise what will happen if a Class member does both, i.e. which will govern? The Court favors giving effect to the exclusion request and disregarding the objection.
22. Section 18, p. 7 should update the department to CX101 and state that the hearing will be in the Complex building.
23. The Class Notice should advise Class members how to access documents from the court’s website. Additionally, any reference to specific documents should include the ROA number.
24. The case number is incorrect on the Workweek Dispute Form.
25. The name of Defendant is incorrect in the Workweek Dispute Form.
Issues re Proposed Order
1. The proposed order is to be revised consistent with the issues addressed above.
2. The Settlement, and any amendments thereto, Class Notice, and Workweek Dispute Form should be attached as exhibits to the proposed Order.
3. The attorney contact information should be deleted from the caption page.
4. The references to specific documents in the first paragraph should include ROA numbers.
5. The proposed Order should provide an explanation of who, what time frame and what claims are excluded because of the Benjamin Action.
6. Paragraph 12 should state the Parties and Settlement Administrator are ordered to carry out the Settlement according to the terms of the Agreement.
7. The proposed Order provides the "selection [for the Negotiated End Date] will be made at or near the time of Preliminary Approval". See ROA 78, Proposed Order, 5. This date should be determined before the Class Notice is mailed so that a specific date can be included in the Class Notice.
8. The proposed Order should state that the Court approves the procedures for exclusion requests, objections and disputes.
9. The Implementation Schedule should include the extended deadline for exclusions and objections.
10. The Implementation Schedule should identify the Response Deadline as the deadline for submitting exclusion requests, written objections and disputes.
11. The Implementation Schedule should indicate that oral objections can be made in person or through counsel at the Final Approval hearing whether or not a written objection has been submitted.
At Final Approval, the parties are ordered to include the following:
1. Plaintiff must present a full report to the Court on all exclusions, objections and disputes received. The Court will consider any objections at the final approval hearing.
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.) However, the parties must include sufficient information in the Motion for Final Approval to permit the Court to conduct a lodestar cross-check, such as billing records in support of fees and documentation of costs.
3. Plaintiff’s counsel must disclose whether they have any fee-splitting arrangement with any other counsel, including the exact percentages, or confirm none exist. (Barnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler (2012) 212 Cal.App.4th 172, 184; Cal. R. Ct. 3.769(b).)
4. In order for the Court to determine the appropriate amount of Plaintiff’s enhancement 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. 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.
Plaintiff is ordered to give notice, including to the LWDA. Any supplemental brief and/or amendments made pursuant to this Order should also be served on LWDA along with notice of the continued hearing date, and proof of service filed with the Court.