Judge: William D. Claster, Case: 20-01166599, Date: 2023-08-25 Tentative Ruling

Plaintiff Cristobal Flores-Ocampo's Motion for Preliminary Approval of Class Action Settlement  ROA 196

Plaintiff’s motion for preliminary approval of class action settlement is CONTINUED to October 27, 2023 at 9:00 a.m. in Department CX101 to permit the parties to respond to the following items of concern. (The Court is moving from Department CX104 to CX101 effective September 8, 2023.) Any supplemental briefing shall be filed on or before October 16, 2023.  If a revised settlement agreement and/or class notice is submitted, a redline showing all changes, deletions and additions must be submitted as well. 

As to the Settlement:

1.            What effect will this settlement have on the related Mendoza matter?

2.            Apart from Mendoza, are there any other matters (class, individual, or PAGA, including in the pre-suit LWDA stage) that may be affected by this settlement?

3.            The parties estimate there are 313 employees who worked 35,702 workweeks in the class period. If these figures are off, the parties have the option, but not the obligation, to void the settlement. The Court would prefer mandatory language. As written, if there are 600 employees who worked 70,000 workweeks, the parties could simply decide to proceed with the settlement as written, even though the GSA was based on half the employees and workweeks. Shouldn’t this language be replaced with a mandatory escalator?

4.            The class and aggrieved employees are defined not as employees of defendant Laguna Cookie Company (“LCC”), but as employees of the “Released Parties,” which includes not only LCC, but also its parents Stauffer and Meiji America, and numerous other parties (successors, assigns, attorneys, insurers, etc.). Do any of the Released Parties have employees of their own in California? For example, LCC’s counsel in this action are included in the definition of “Released Parties” because they are attorneys for LCC. The Court will not approve a settlement that purports to settle the claims of non-exempt California employees of LCC’s counsel.

5.            Relatedly, while the aggrieved employees are defined in terms of the Released Parties, the sole employer named in Plaintiff’s initial letter to the LWDA is LCC. Insofar as Plaintiff seeks to represent the aggrieved employees of all Released Parties, has Plaintiff exhausted his administrative remedies with respect to any employer except LCC?

6.            Is Plaintiff an adequate or typical representative of employees of Released Parties other than LCC?

7.            Did counsel conduct any investigation of Released Parties other than LCC?

8.            Did counsel interview any class members other than Plaintiff?

9.            Who was the expert Plaintiff retained? Please provide a CV.

10.         If counsel only interviewed Plaintiff, how is it possible to value the non-record claims, such as rest breaks or off-the-clock work?

11.         Based on counsel’s declaration, it appears Plaintiff contends there are nearly 60,000 unpaid hours of COVID-19 testing at issue, with half of this time owed at the minimum wage and half at the overtime wage. Please explain the evidence supporting this theory of recovery, and how counsel determined nearly 60,000 hours were at issue. For example, does this count only the time actively spent testing (i.e., with a swab in the employee’s nose), or the entire 10-15 minute processing time for the test? If the latter, were employees under LCC’s control during the entire processing time? Did LCC require COVID-19 testing throughout the entire class period? Etc.

12.         What expenses went unreimbursed? Paragraph 28 of counsel’s declaration does not specify, and it concludes by discussing meal and rest breaks instead of reimbursement.

13.         The class release at § 6.01 covers “any and all claims alleged or that could have been alleged in Named Plaintiff’s Operative Complaint during the Class Period.” It should be limited to claims that could have been alleged based on the facts pled in the FAC. Please make an identical change to the PAGA release at § 6.02.

14.         In addition, the PAGA release should be explicitly limited to PAGA claims. As drafted, it appears to cover all claims.

15.         Please provide a bid or estimate from the settlement administrator.

16.         At final approval, please submit contemporaneously made billing records for attorney’s fees and costs.  The Court will not be inclined to award an amount of fees and costs greater than the amount stated in the notice.

17.         At final approval, please submit billing records for administrative costs.  The Court will not be inclined to award administrative costs in an amount greater than the amount stated in the notice.

18.         Because Plaintiff has provided a declaration regarding his requested enhancement, no declaration is required at final approval.

19.         At final approval, the administrator is to provide a high, low, and average for individual settlement payments, along with Plaintiff’s individual payout.

As to the Notice:

1.            At § 5, the notice should say “After conducting an investigation,” not “After conducting substantial investigation.” A Court-approved notice should not appear to comment on the quality of the investigation.

2.            The description of the release at § 8 is confusingly written. Please amend it to be more comprehensible to a lay reader.

3.            Because the Court will move to Department CX101 before the final approval hearing, please make all necessary changes from CX104 to CX101 in the notice.

4.            Does notice need to be given in any languages other than English?

5.            If any changes are made to the settlement agreement, please make corresponding changes to the notice.

6.            The font size in the actual notice may not be smaller than the font size in the proposed notice provided to the Court.