Judge: William D. Claster, Case: JCCP5214, Date: 2022-07-26 Tentative Ruling
Plaintiff’s Motion for Preliminary Approval of Class Action Settlement
Plaintiffs’ motion for preliminary approval of class action settlement is CONTINUED to September 2, 2022 at 9:00 a.m. in Department CX104 to permit the parties to respond to the following items of concern. Any supplemental briefing shall be filed on or before August 24, 2022. If a revised settlement agreement and/or class notice is submitted, a redline showing all changes, deletions and additions must be submitted as well. In addition, Plaintiffs must provide proof of service of any revised settlement agreement and supporting papers on the LWDA.
As to the Settlement:
1. Apart from the included actions in this matter, are there any actions, whether individual, class, or PAGA (pending or in the pre-filing LWDA stage) that may be affected by this settlement?
2. Please provide copies of all class representatives’ pre-filing letters to the LWDA (and any amendments thereto).
3. The escalator is based on Shifts (as defined) worked between June 23, 2015 and January 10, 2022. How many Shifts were worked? Does the actual number of Shifts worked trigger the escalator?
4. As the Court understands the calculation of individual class and PAGA shares, employees will be given workweek credits for their entire tenure based on the position they last held. It appears this could drastically overpay class members who were recently promoted. For example, if a class member was hired by Defendants as a crew member in early 2015, promoted to shift lead in 2020, and promoted to business manager in June 2022, the Court understands that class member would be paid for the entire class period as a business manager despite having been a business manager for only a few weeks. Does this create intra-class conflicts between long-tenured, recently promoted class members and other class members?
5. Please provide for 60 days, rather than 45, for opt-outs, objections, and disputes.
6. Will individual PAGA payments be treated as non-wage income with 1099s issued? The Court assumes so, but this appears to be missing from the agreement.
7. How will employer-side payroll taxes be handled? This appears to be missing from the agreement.
8. The Court is satisfied that attorney Graves has foundation to testify about his, his firm’s, and his client’s connections (or lack thereof) to Public Counsel, the chosen cy pres. Counsel for all other parties must explain their, their firms’ connections, and their clients’ connections to Public Counsel in their own declarations.
9. Per § 6.6 of the agreement, Defendants offer to provide the Court with documents to support an installment-funded settlement. Please provide these documents. If Defendants wish the documents to remain under seal, they should follow CRC 2.550 et seq.
10. Why are class representatives’ proposed incentive payments paid entirely from the first distribution instead of being phased like class payments and attorneys’ fees?
11. The addition of the Eisenberg action to these coordinated proceedings changed the case from one involving employees of Carl’s Jr. franchises owned by Defendants to a case involving Carl’s Jr. and KFC employees. Are Carl’s Jr. and KFC employees properly considered part of the same class? As discussed in hearings in the underlying Abarca matter, franchisee operations are often closely supervised by franchisors. Do Carl’s Jr. and KFC corporate have sufficiently similar operating procedures to treat employees as part of a single class?
12. What investigation did counsel perform into working conditions at Defendants’ KFC locations, as opposed to Defendants’ Carl’s Jr. locations?
13. To ensure a complete record, attorneys Hawkins and Aiwazian should submit declarations that set forth their qualifications to serve as class counsel.
14. Please provide an estimate of litigation expenses incurred to date for which Plaintiffs will seek reimbursement.
15. At final approval, all counsel who will be paid from an award of fees and costs are to 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.
16. 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.
17. At final approval, all class representatives who request an incentive payment are to provide declarations addressing the enhancement factors set forth in Golba v. Dick’s Sporting Goods, Inc. (2015) 238 Cal.App.4th 1251 and Clark v. Am. Residential Servs. LLC (2009) 175 Cal.App.4th 785, including the amount of time and effort spent on the litigation. The Court understands that some representatives have already submitted declarations in a compendium; those declarations may be resubmitted alongside other representatives’ declarations in a new compendium.
18. 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. Please omit the objection form from the notice, but please include a workweek dispute form with the notice.
2. The description of the releases appears to be copied and pasted from the settlement agreement. The Court has no problem with this, but the section numbers/headings should be deleted to avoid confusion.
3. Please include remote appearance instructions for the final approval hearing.
4. Please provide some idea of when class members may expect to receive payments. (The Court understands this cannot be stated with precision.)
5. The administrators’ bids reflect Spanish translation. Does notice need to be given in any languages other than English and Spanish?
6. If any changes are made to the settlement agreement, please make corresponding changes to the notice.
7. The font size in the actual notice may not be smaller than the font size in the proposed notice provided to the Court.