Judge: Randall J. Sherman, Case: 2021-01219806, Date: 2023-08-04 Tentative Ruling

The tentative ruling is to continue the hearing on plaintiff’s Motion for Preliminary Approval of Class Action Settlement to November 3, 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 Class Period is defined as September 3, 2017 through March 11, 2023.  If triggered, the escalator clause in §5(F) of the settlement agreement provides for defendant’s option of either an increase in the settlement amount or a change to the Class Period such that some of the class members receiving the class notice will no longer be included in the settlement.  However, this court will not approve a settlement that results in class members being told they are in the class but later being told they are not in the class.  Thus, defendant will have to either rely on or take another look at its workweek estimate as of almost five months ago, March 11, 2023.  If the parties want to leave in the option calling for a reduction of the class period, rather than just an increase in the settlement amount, they must determine before preliminary approval if the escalator clause applies.

Although the motion provides the estimated average payment to class members under the proposed settlement, it fails to provide the estimated high and low payments.  Those estimates are needed to assist the court in properly determining the fairness of the proposed settlement to the class.  If those figures are not available now, they must be provided in the motion for final approval.

The allocation of only 25% of the settlement payments for wages appears to be low.  The estimated exposure analysis in the motion allocates more than 70% 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.

Counsel should propose a realistic Final Approval Hearing date, bearing 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 to defense counsel unless notice is waived.