JAMES CARTER ET AL VS UNITED PACIFIC SERVICES INC

Tentative Rulings

Case Number: ****1388    Hearing Date: January 13, 2020    Dept: 1

Preliminary Approval of Class Action Settlement

Department SSC-1

Hon. Daniel J. Buckley

James Carter, et al. v. United Pacific Services, Inc.

Case No.: ****1388

Hearing: January 13, 2020

TENTATIVE RULING

CONTINUE preliminary approval for the parties to address the following issues:

1. Kullar Analysis.

a. Did Class Counsel calculate the maximum value of the PAGA claim? If so, please provide this value. If not, explain why not.

b. What is the maximum exposure on the claims for wage statement violations and waiting time penalties if Plaintiffs had succeeded at trial?

2. Defendant’s Financial Condition. What documents and other information did Class Counsel review to lead him to the opinion that Defendant was at risk of bankruptcy? (See Donahoo Decl. ¶58.)

3. Provisional Class Certification. The motion does not include any discussion of the existence of a community of interest among class members (i.e., common facts/law predominate; Plaintiffs’ claims are typical of class; Plaintiff is adequate to represent the class). Please provide this analysis.

4. Class Definition. The class definition should be precise and objective. Please explain why the language beginning with “relating to any and all facts” and ending at the end of the paragraph is necessary. This appears to be language that is more appropriately stated in the release provision.

5. Distribution Formula. It appears that the Distribution Formula (¶XI.A) does not account for distribution of the entire net in the event of opt-outs? Will amounts allocated to opt-outs be redistributed pro rata among participating Settlement Class Members?

6. Scope of Release:

a. Modify the release by Settlement Class Members (¶VII.A) to become effective on the date the settlement becomes “Final,” rather than upon the Date of Final Approval. Class Members should not release claims prior to the resolution of appeals (if any).

b. It does not appear that the term “Action,” as referenced in ¶VII, is defined anywhere else in the Settlement Agreement. Either define this term, or modify ¶VII to indicate class members will release claims asserted in the operative complaint in the action.

7. Publicity. The publicity provision in ¶VII.D appears to be extremely restrictive. Why is this provision appropriate, and not in conflict with Class Counsel’s fiduciary duties to Class Members.

8. Handling of Unclaimed Funds. The State Bar of California is not an appropriate cy pres recipient. (see ¶XI.C) Select a different non-profit that meets the requirements listed in CCP ;384(b), and for which no counsel or party has any direct interest in or involvement with. Further, modify the provision to provide for the re-opening of the judgment following final distribution and the payment of accrued interest on the unclaimed amount.

9. Manner of Giving Notice. Will Class Members who receive re-mailed notices be given an extension to the deadlines to submit objections and/or workweek disputes (as well as opt-out requests)? (Compare ¶IX.B with ¶IX.C)

10. Content of the Notice:

a. The class definition provided in the Notice (see pg. 3) must be verbatim to the definition provided in the Settlement Agreement (¶I.R).

b. The release in the Notice (pg. 4) must be verbatim to the release in the Settlement Agreement (¶VII.A)

c. When filling in deadline and dates in the Notice, ensure that the year stated is 2020. The Notice currently includes references to a variety of years, including 2017 (see pg. 6)

d. Why does the notice reference a deadline that is 30 days after the re-mailing? (See pgs. 5 and 6). This seems likely to confuse Class Members. Could the administrator simply fill in the new deadline date for the class members who receive re-mailed notices?

e. Make clear on page 6 that Class Members may appear at the final approval hearing to object to the settlement, regardless of whether they have submitted written objections.

f. Disclose on page 6 that there are fees Class Members must pay to view case documents via the Court’s website.

11. How will notice of final judgment be given to the class? (Cal. Rules of Court, rule 3.771(b)) (e.g. posted on settlement administrator’s website)

12. Is English-only notice sufficient?

13. LWDA Submission. Provide proof of submission of the Settlement Agreement to the LWDA. (Labor Code ;2699(l)(2).) If the Settlement Agreement is modified pursuant to this checklist, please submit both a red-lined copy showing changes made, as well as a final version signed by all parties. Do not submit an addendum in lieu of a fully executed revised settlement agreement, containing all operative settlement terms. Modify notice to match any revisions to the Settlement Agreement