Judge: Randall J. Sherman, Case: 2020-01163609, Date: 2022-12-16 Tentative Ruling
The tentative ruling is to continue the hearing on plaintiff’s Motion for Preliminary Approval of Class and Representative Action Settlement to March 10, 2023 at 10:00 a.m. Counsel must file supplemental papers addressing the court’s concerns (not fully revised papers that would have to be re-read) at least 16 days before the next hearing date. Counsel should submit an amendment to the settlement agreement rather than any amended settlement agreement. Counsel also should provide a red-lined version of any revised papers, including the class notice. Counsel also should provide the court with an explanation of how the pending issues were resolved, with references to any corrections to the settlement agreement and the class notice, rather than with just a supplemental declaration or brief that simply asserts the issues have been resolved.
The motion does not provide the court with the estimated high, low or average individual payments to the class members. The estimated average payment must be provided for preliminary approval, but if the high and low estimated payments are not available at this time, they must be provided in the motion for final approval.
The allocation of only 20% of the settlement payments for wages appears to be low. The estimated exposure analysis in the motion allocates more than 80% of the class members’ potential (non-PAGA) recovery to wages. Either an increase to 33 1/3% or an adequate explanation of why the figure is not at least 33 1/3% is required.
The provision in §8 of the settlement agreement that if the settlement administration costs exceed $9,000, the excess will be paid from the Gross Settlement Amount, is unacceptable, because the class notice on p. 3 informs class members that administration costs will be “up to $9,000”.
The settlement agreement provides in §9D that the settlement administrator will make the final decision on any workweek disputes. The settlement agreement should reflect instead that the Administrator and the parties will attempt to resolve any such dispute, but the court ultimately will decide any unresolved dispute. The description of the dispute handling procedure also must be set forth in the class notice.
The class notice suggests in the box at the top of p. 2 that only those class members who submit a timely objection may appear at the Final Approval Hearing to object, which is inconsistent with both §9B of the settlement agreement and p. 5 of the class notice. That language must be amended. In addition, the heading of Option 3 on p. 5 of the class notice must be changed from “File an Objection to the Settlement” to “Object to the Settlement”, and the next heading, “Final Fairness Hearing”, must be deleted, and the paragraph below it moved up to become part of the preceding paragraph, to help ensure that class members know they may orally object to the proposed settlement at the Final Approval Hearing.
Rather than having class members prepare their own opt-out requests, the class notice must include an exclusion form that class members can complete and submit. The form should be referenced in the class notice.
Counsel should propose a realistic Final Approval Hearing date, keeping in mind that all papers in support of the Final Approval Hearing, including detailed hourly breakdowns of plaintiff’s attorneys to support a lodestar cross-check, detailed plaintiff attorney cost breakdowns, an Administrator declaration and invoice, and plaintiff’s declaration to support the enhancement request, must be filed at least 16 calendar days before the Final Approval Hearing date, to provide enough time for court review, and must be served in compliance with CCP notice of motion requirements.
Plaintiff is ordered to give notice of the ruling to defense counsel unless such notice is waived.