Judge: Randall J. Sherman, Case: 2021-01177810, Date: 2023-08-24 Tentative Ruling
The tentative ruling is to continue the hearing on plaintiff’s Motion for Preliminary Approval of Class Action Settlement to October 27, 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.
Although the settlement agreement now defines “Aggrieved Employees” and the “PAGA Period”, and the settlement agreement and class notice now contain an explanation as to how the individual PAGA penalty payment for each aggrieved employee will be calculated, the parties still do not provide an estimated number of aggrieved employees, and plaintiff still fails to provide a total gross estimate for defendant’s potential exposure on the PAGA claims.
Plaintiff’s explanation of why only 10% of the settlement payments are for wages is inadequate. Plaintiff’s explanation that the wage claim was worth $6,331 after the risks of class certification and liability fails to account for the fact that the motion asserts that the meal period claims are worth $236,161 and the rest period claims are worth $15,088 after the risks of class certification and liability. Those figures explain why the court concluded last time that the estimated exposure analysis in the motion allocates over 70% of the class members’ potential (non-PAGA) recovery to wages. An increase to 33 1/3% of the settlement payments being allocated to wages is required.
Plaintiff has made the correction to the next to last line of Section 1 of the class notice to state “preliminarily” instead of “preliminary”. However, the amendment to the settlement agreement incorrectly references “preliminarily approval” instead of “preliminary approval” at 2:11, and the class notice incorrectly uses the term “preliminarily approval” in multiple instances.
On what is now p. 5 of the class notice, Department C18 still needs to be changed to Department CX105.
The new language in the class notice on pp. 2 and 3 is spaced differently from the rest of the class notice, and must be corrected to be formatted consistent with the rest of the class notice.
The new opt-out form fails to explain that an employee may not request exclusion from the settlement of a PAGA claim. Language similar to the following is required: “The proposed settlement includes the settlement of claims for civil penalties under PAGA. An employee may not request exclusion from the settlement of a PAGA claim. Thus, if the court approves this settlement, then even if you request exclusion from the settlement, you still will receive an individual settlement share for the PAGA claims and will be deemed to have released the PAGA claims. A request for exclusion will preserve your right to individually pursue only the remaining class claims.”
Plaintiff is ordered to give notice of the ruling to defense counsel unless notice is waived.