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Greer v. Pacific Gas And Electric Co.

United States District Court, E.D. California

May 24, 2018

BECKY GREER, TIMOTHY C. BUDNIK, ROSARIO SAENZ, IAN CARTY, HALEY MARKWITH, and MARCIA GARCIA PESINA, individually and as class representatives, Plaintiffs,
PACIFIC GAS AND ELECTRIC COMPANY, IBEW LOCAL 1245, and DOES 1 through 10, inclusive, Defendants.


         On May 14, 2018, Defendant IBEW Local 1245 (“IBEW”) filed a motion to certify order for interlocutory appeal under 28 U.S.C. § 1292(b) and to stay proceedings. (ECF No. 253.) IBEW argues that this Court should stay the case and permit an interlocutory appeal of the Court's order requiring that the notice to purported class members include the amounts that will be paid by each defendant-i.e., IBEW, who is the class members' own Union, and PG&E, who is the class members' employer that allegedly underpaid class members' wages. Neither PG&E nor Plaintiffs object to this disclosure. Moreover, IBEW concedes that it legally must disclose this allocation to class members. Nevertheless, IBEW argues that the Court was legally required to permit IBEW to withhold that information until after class members have made their decision to settle the case and thereby release their claim against IBEW for the breach of the duty of fair representation, among other claims.

         Defendant PG&E filed a response indicating it supports IBEW's motion to certify the question, although “PG&E maintains its neutral position regarding the disclosure of each Defendant's portion of the $6 million total settlement value.” (ECF No. 257 at 2.) Plaintiffs filed an opposition objecting to the certification and stay, and proposing compromises to satisfy IBEW without further litigation. (ECF No. 260.)

         For the following reasons, the Court DENIES IBEW's motion.


         Under federal law, a district court may certify for appeal an otherwise unappealable decision in certain exceptional circumstances. 28 U.S.C. § 1292(b). A party seeking an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) must demonstrate that: (1) there is a controlling question of law; (2) there are substantial grounds for difference of opinion regarding the issue; and (3) an immediate appeal may materially advance the ultimate termination of the litigation. In re Cement Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1981). Section 1292(b) should be “used only in extraordinary cases where decision of an interlocutory appeal might avoid protracted and expensive litigation.” See U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966).


         a. Controlling Question of Law

         Regarding whether the Court's order concerns a controlling question of law, IBEW argues that:

[T]he Court's Order requiring Defendants to disclose in the settlement notices the specific contributions that each Defendant will make toward the settlement fund involves “a controlling question of law as to which there is substantial ground for difference of opinion” insofar as the Order purports to grant preliminary approval to the settlement while ordering the parties to modify substantive and material terms of their agreement without their consent and over Local 1245's previously stated objection to the modifications required by the Court, notwithstanding that the Court's authority is limited to approving or denying the settlement as a whole; and therefore, ‘an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b).

(ECF No. 253 at 2.)

         In support of its argument, IBEW cites to case law indicating that the Court cannot modify the terms of the settlement. (ECF No. 253 at 12.) See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998) (“Neither the district court nor this court have the ability to delete, modify or substitute certain provisions. The settlement must stand or fall in its entirety.”) (internal citations and quotations omitted); Officers for Justice v. Civil Service Com'n of City and County of San Francisco, 688 F.2d 615, 630 (9th Cir. 1982) (“Neither the district court nor this court is empowered to rewrite the settlement agreed upon by the parties. We may not delete, modify, or substitute certain provisions of the consent decree.”).

         The Court agrees with this statement of law. The Court cannot modify the terms of the settlement agreement.

         It is equally clear, however, that the Court may modify the proposed Notice to the class members of the settlement terms. Rule 23(e)(1) of the Federal Rules of Civil Procedure states that “[t]he court must direct notice in a reasonable manner to all class members who would be bound by the proposal.” Fed.R.Civ.P. 23(e)(1). Indeed, IBEW's own cited cases hold that the Court has the authority to modify the notice of a class settlement. See Churchill Village, L.L.C. v. General Electric, 361 F.3d 566, 575 (9th Cir. 2004) (“The notice approved by the district court met this standard. . . . The district court ordered that this information be included in the notice . . . ”); Hanlon, 150 F.3d at 1025 (“. . . Rule 23(d) vests a district court with the authority and discretion to protect the interests and rights of class members and to ensure its control over the integrity of the settlement approval process. ‘[A] district court has both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and parties.'” . . . Adequate notice is critical to court approval of a class settlement under Rule 23(e).”); Officers for Justice, 688 F.2d at 623-624 (9th Cir. 1982) (“A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.”) (emphasis added).

         IBEW does not cite any cases to the contrary. Moreover, IBEW did not object to any other change to the ...

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