Motion by Plaintiff Manny Ponce for Preliminary Approval of Class Action Settlement:
This hearing is continued to 27 may 2016 at 10:30 AM in CX105 to give Plaintiff counsel time to address the following court concerns by brief supplemental declaration(s), amendment to the settlement agreement, revised proposed ?notice to class? and revised proposed Order ? at least 10 days in advance of that next hearing date.
The court does not invite, and prohibits, any re-filing of the motion and all motion papers in the interests of efficient use of court resources.
(a) No estimate of plaintiff attorney costs is provided, either in moving papers, the settlement agreement, or the proposed ?notice to class? (not ok ? a ?material term? not resolved at this point (since net settlement distribution to the Class is calculated based on the deduction of that unknown cost figure) ? for example, if plaintiff attorney costs are $1 million, then Class Members get nothing) ? the court cannot reach fair, adequate, and reasonable conclusion as to preliminary approval, in the absence of a specific plaintiff attorney cost number identified in an amendment to the settlement agreement, and in the proposed ?notice to class?.
(b) No identification of proposed Administrator or estimate of that Administrator?s costs is provided, either in moving papers, the settlement agreement, or the proposed ?notice to class? (not ok ? a ?material term? not resolved at this point (since net settlement distribution to the Class is calculated based on the deduction of that unknown cost figure) ? for example, if Administrator costs are $1 million, then Class Members get nothing). The court cannot reach fair, adequate, and reasonable conclusion as to preliminary approval, in the absence of an Administrator and a specific Administrator cost/fee number identified in an amendment to the settlement agreement, and in the proposed ?notice to class?.
(c) No identification of the proposed cy pres beneficiary(s) is provided, either in moving papers, the settlement agreement, or the proposed ?notice to class? (not ok ? a ?material term? not resolved at this point (since uncashed checks are proposed to go to that cy pres beneficiary(s)) ? in other words, Class Members have a right to ?notice? of all material terms of the subject settlement, to decide whether they wish to ?object? or opt-out? (lacking, here).
(d) Release language on page 7, line 15 of settlement agreement is not ok (too broad) ? albeit release language on ?proposed notice to class? looks ok
(e) Settlement agreement pages 18-19 provide that counsel shall make binding determination re any ?workweek? dispute, or counsel may request Administrator to so decide? ? should reflect that court will decide any such dispute in the event parties cannot reach a resolution of same.
(f) The Plaintiff attorney ?reservation of right to appeal any reduction in the plaintiff attorney fee?, is improper for a variety of reasons. It facially reflecting a conflict of interest approach in contrast to the fiduciary duty owed by plaintiff attorney to all Class Members ? i.e. since net settlement distribution to the Class is calculated based on the deduction of the plaintiff attorney fee award, any appeal will necessarily delay and impact any distribution to the Class. Such an approach impacts this court?s ability to reach a fair, adequate, and reasonable conclusion as to this preliminary approval request (see page 23 of settlement agreement).
(g) The settlement agreement and proposed ?notice to class? provide that a copy of any written objection must be served on both plaintiff and defense counsel. This is too burdensome; it should provide that such objections will be made to the Administrator who will provide it to Plaintiff and Defendant counsel.
(h) The requirement that any objection must be in writing and that a written ?notice of intention to appear? is required before any Class Member will be heard at the ?final fairness? hearing, is too chilling. There is no reason that a Class Member cannot appear at the final fairness hearing to object that plaintiff counsel are being overpaid for instance ? see page 20 of settlement agreement and proposed notice to class – needs to be modified, in that regard.
(i) Settlement agreement pages 3, 5, 6 all reference future dismissal of this action ? in direct violation of CRC ? 3.769 (h) (only Judgment can be entered ? no dismissal).
(j) Deadline dates, and blanks in proposed Order, and notice to class, must be ?filled in? (i.e. no proposed ?final approval? hearing date, as yet?) ? and all papers in support of that ?final approval? hearing (including detailed plaintiff attorney billing statements with hourly breakdowns to support lodestar cross-check, and any plaintiff declaration estimating the number of hours he has invested in this matter), must be filed no later than 14 calendar days before that date.
If the above concerns are adequately addressed, this motion for preliminary approval of class settlement is likely to be granted.
Plaintiff shall give Notice.