United States District Court, N.D. California
ORDER RE SUPPLEMENTAL BRIEFING FOR PLAINTIFFS'
MOTION FOR PRELIMINARY APPROVAL DOCKET NO. 149
M. CHEN UNITED STATES DISTRICT JUDGE.
have moved for preliminary approval of a class action
settlement. Having reviewed the motion and supporting
documents, the Court hereby orders that the parties provide a
joint supplemental brief addressing the following.
Maximum Value of Plaintiffs' Claims
claim that the maximum value of their § 2802 and §
17200 claims is $1, 275, 723.83. See Mot. at 6.
Plaintiffs shall explain how they arrived at this figure. To
the extent Plaintiffs arrived at this figure based on certain
assumptions (e.g., 1, 193, 694 bank days and 2, 338,
672.9 miles), they shall explain how they arrived at these
supporting assumptions. It will also be helpful for the Court
to be given information about how many California stores are
at issue and, in general, how close the relevant banks were
to the stores.
addition to the above, Plaintiffs shall identify what the
maximum value of their PAGA claim is and how they arrived at
Plaintiffs have identified litigation risks in their papers,
see Mot. at 3, 6, 14-15, they have not addressed how
they evaluated those risks - i.e., how significant
those risks were. For example, Plaintiffs take note of
OR's claim that “it would not know or have reason
to know that . . . expenses were being incurred, ” Mot.
at 3, but this defense is arguably of questionable merit
based on the evidence that was provided to the Court during
class certification proceedings. See Docket No. 98
(Order at 3) (taking note of testimony from OR's 30(b)(6)
witness that district managers (i.e., the managers
above the Store Managers) are aware that employees are
expected to make daily bank deposits). Plaintiffs also
represent that OR provided evidence showing that many class
members were reimbursed for mileage expenses but they have
not explained whether that is consistent with the evidence
that they acquired from class members (e.g., through
surveys). In addition, Plaintiffs indicate that some class
members could walk to banks but it is not clear how often
that was the case (e.g., on average, were banks
within walking distance from the stores?). To the extent OR
maintains that class members could use company vehicles to
make deposits, Plaintiffs have not addressed whether that
comports with the evidence that they acquired from class
parties shall address the significance of the litigation
risks identified in Plaintiffs' motion. The Court
underscores that the significance of the litigation risks is
an important factor in assessing whether it was reasonable
for Plaintiffs to settle the case for (allegedly) 30% of the
maximum value of the case.
parties shall address the adequacy of the settlement with
respect to the PAGA claim. See generally Viceral v.
Mistras Grp., Inc., No. 15-cv-02198-EMC, 2016 U.S. Dist.
LEXIS 140759, at *28 (N.D. Cal. Oct. 11, 2016) (stating that,
“in evaluating the adequacy of a settlement of a PAGA
claim, courts may employ a sliding scale, taking into account
the value of the settlement as a whole[;] [t]hus, where a
settlement for a Rule 23 class is robust, the statutory
purposes of PAGA may be fulfilled even with a relatively
small award on the PAGA claim itself, because such 'a
settlement not only vindicates the rights of the class
members as employees, but may have a deterrent effect upon
the defendant employer and other employers, an objective of
Plan of Distribution
plan of distribution gives greater weight to the interests of
the Store Managers over those of the Assistant Store Managers
and Retail Service Specialists in recognition of the fact
that Store Managers were usually the employees responsible
for doing bank deposits. However, as the Court noted in its
certification order, the status of a Store Manager is
somewhat complicated to the extent that his or her knowledge
of whether expenses were incurred could be imputed to OR.
shall address whether and how the potential conflict and risk
with respect to Store Managers were taken into account in the
plan of distribution.