Judge: Peter Wilson, Case: 2022-01261966, Date: 2023-08-31 Tentative Ruling
The hearing on the Motion for Preliminary Approval is CONTINUED to October 12, 2023 at 2 PM in Department CX101 to permit the parties to respond to the following issues. All supplemental briefing shall be filed at least 10 Court days before the continued hearing and respond where necessary to the points raised below. Redlined versions of all revised papers are to be provided. All documents must be text-searchable and, where applicable, include electronic bookmarks per the California Rules of Court. If required, an amendment to the settlement agreement is directed, rather than ‘amended settlement agreement’, to avoid use of limited Court resources.
As to the Settlement
1. The settlement provides that after 180 days, uncashed checks will be transmitted to cy pres recipient “Public Counsel”. (Settlement ¶ 71.) However, part of the individual settlement payments is considered wages owed and is thus the property of the class members, so uncashed checks should be held in the State Controller’s Unclaimed Property Fund in the name of the class member rather than redirected to a cy pres.
2. Were all of the moving papers served on the LWDA? It appears only the Settlement was served.
3. The definition of Released Class Claims is overly broad. The inclusion of "related common law claims for conversion, other alleged tortious conduct, breach of contract [etc.]” renders the release vague and ambiguous. (See Amaro v. Anaheim Arena Management, LLC (2021) 69 Cal.App.5th 521, 537, 538 [“Releases must be appropriately tethered to the complaint’s factual allegations.”; “Requiring a reasonable connection prevents the release from extending to claims that are only remotely related to the allegations in the complaint.”])
4. The definition of Released Parties is vague and overly broad in including “other related companies.”
5. The Settlement should be revised to reflect that objecting Class Members may elect to appear in person and do not need to file a notice of intent to appear. The Court will consider all oral objections made in person or through counsel at the Final Approval Hearing regardless of whether a written objection has been submitted.
Relatedly, the Notice (§ 7 ¶ 2) should be revised as it is unclear as to the effect or a written and oral objection. It implies only a written objection will be considered as it states “the Court may not choose to consider your objection…” unless it is in written form. This is not correct.
6. The Settlement should be revised to provide that the parties will 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 Court shall have the right to review any decision made by the settlement administrator or the parties regarding a claim dispute.
The notice inappropriately provides that the Settlement Administrator’s decision is “final” and it cannot be appealed or otherwise challenged. (Notice § 4.) This language does not appear in the settlement. (Settlement ¶ 66.)
Issues re Class Notice
7. The Class Notice is to be revised consistent with the issues addressed above.
8. The Settlement Administrator’s website will have “various documents” (Notice § 9), but the Settlement Administrator should post all key documents, including the operative complaint, the PAGA Notice letters to the LWDA, the Settlement and any amendments, the Class Notice and any included forms, the Orders granting Preliminary and Final Approval, and the Judgment, and the Notice should so state. The Judgment should be posted for at least 180 days.
Issues re Proposed Order
9. The proposed order is to be revised consistent with the issues addressed above.
10. The attorney contact information on the caption page should be removed.
11. The Settlement and any amendments, the Class Notice, Request for Exclusion and Objection Forms, should be attached to the proposed order as exhibits.
12. A realistic date for the final approval hearing should be proposed. The Motion for Final Approval should be served on the LWDA with a proof of service filed with the Court.
13. The order should indicate that Class Members may orally object in person or through counsel at the Final Approval hearing whether or not they submit written objections.
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 it has any fee-splitting or referral arrangements 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 filed with LWDA along with notice of the continued hearing date, with a proof of service submitted to the Court.