Bykov v. DC Transportation Services, Inc.

Filing 18

ORDER signed by Magistrate Judge Deborah Barnes on 3/11/19 ORDERING that HEARING as to 16 Motion for Preliminary Approval of Class Action Settlement is continued to 3/29/2019 at 10:00 AM in Courtroom 27 (DB) before Magistrate Judge Deborah B arnes. On or before March 22, 2019, plaintiff may file a revised proposed Notice of Proposed Class Action Settlement and Hearing Date for Court Approval and a revised proposed Order Granting Preliminary Approval of Class Action Settlement and/or a supplemental brief, no longer than 10 pages. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VALERIY BYKOV,

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No. 2:18-cv-1691 DB

Plaintiff,
v.

ORDER

DC TRANSPORTATION SERVICES,
INC.,
Defendant.

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Each of the parties in the above-captioned case has consented to proceed before a United

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States Magistrate Judge. See U.S.C. § 636(c). Accordingly, this matter has been reassigned to

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the undersigned for all purposes. (ECF No. 12.) On February 11, 2019, plaintiff filed a motion

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for preliminary approval of a class action settlement. (ECF No. 16.) The motion is noticed for

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hearing before the Court on March 15, 2019. On February 25, 2019, defendant filed a statement

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of non-opposition. (ECF No. 17.)

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Rule 23(d) of the Federal Rules of Civil Procedure “vests a district court with the

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authority and discretion to protect the interests and rights of class members and to ensure its

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control over the integrity of the settlement approval process.” Hanlon v. Chrysler Corp., 150 F.3d

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1011, 1025 (9th Cir. 1998). “District courts have interpreted Rule 23(e) to require a two-step

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process for the approval of class action settlements: ‘the Court first determines whether a
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proposed class action settlement deserves preliminary approval and then, after notice is given to

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class members, whether final approval is warranted.’” In re High-Tech Emp. Antitrust Litig., No.

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11-cv-02509-LHK, 2014 WL 3917126, at *3 (N.D. Cal. Aug. 8, 2014) (quoting Nat’l Rural

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Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 525 (C.D. Cal. 2004)).

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Rule 23 “requires the district court to determine whether a proposed settlement is

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fundamentally fair, adequate, and reasonable.” Hanlon, 150 F.3d at 1026 (citing Class Plaintiffs

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v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992)). “It is the settlement taken as a whole,

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rather than the individual component parts, that must be examined for overall fairness.” Id.

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(citing Officers for Justice v. Civil Serv. Comm’n of San Francisco, 688 F.2d 615, 628 (9th Cir.

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1982)). “Where, as here, the parties reach a settlement before class certification, the district court

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must apply a ‘higher standard of fairness.’” Cotter v. Lyft, Inc., 176 F.Supp.3d 930, 935 (N.D.

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Cal. 2016) (quoting Hanlon, 150 F.3d at 1026). In evaluating a proposed settlement at the

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preliminary approval stage, “[s]ome district courts . . . have stated that the relevant inquiry is

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whether the settlement ‘falls within the range of possible approval’ or ‘within the range of

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reasonableness.’” In re High–Tech Emp. Antitrust Litig., 2014 WL 3917126, at *3 (quoting In re

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Tableware Antitrust Litig., 484 F.Supp.2d 1078, 1079 (N.D. Cal. 2007)).

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Here, the Court has some concerns with plaintiff’s proposed Notice of Proposed Class
Action Settlement and Hearing Date for Court Approval (“Notice”). Specifically:
1. The Notice erroneously lists the case number for this action as “No. 2:18-cv-1691

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TLN DB.” (ECF No. 16-3 at 2, 3, 8.) That was the case number in this action before

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the matter was reassigned to the undersigned for all purposes. The correct case

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number is No. 2:18-cv-1691 DB.

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2. Section VI.C. of the Notice states “Objections . . . must be mailed to the Settlement

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Administrator, [Insert ADDRESS], by no later than [Insert deadline] for your

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objection to be considered.” (ECF No. 16-3 at 8.) It seems to the Court that the

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Notice should direct class members who wish to object to mail such written objections

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to the Court. Those objections will be scanned, docketed, and made available to the

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parties and the Court.
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3. The Notice should explain that the Court can only approve or deny the settlement.

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The Court cannot change the terms of the settlement.
4. Section VI.C. of the Notice also states that “Objections must be in writing” and that

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objections that are not in writing may not be considered by the Court. (ECF No. 16-3

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at 8.) The Notice should reflect that, although objections should be submitted in

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writing, the Court will hear all objections to the settlement at the Final Approval

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hearing, regardless of whether those objections were previously submitted in writing.
5. The Notice should advise class members that they can view the Court’s calendar at

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http://www.caed.uscourts.gov/caednew/index.cfm/judges/daily-calendar/, to confirm

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the hearing date for the Final Approval hearing.
6. Section VI.D. of the Notice states that “Any attorney who intends to represent an

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individual objecting to the Settlement must file a notice of appearance with the Court

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and serve counsel for all parties” within 30 days of the mailing of the Notice. It is

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unclear to the Court why there is any need to set a deadline for the appearance of

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counsel representing a class member objecting to the Settlement, let alone a mere 30-

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day window allowing such an appearance.

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Finally, plaintiff has also submitted a proposed Order Granting Preliminary Approval of

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Class Action Settlement which provides certain dates and deadlines. (ECF No. 16-10.) One such

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proposed deadline is that plaintiff may file the motion for final approval of the settlement “Not

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less than 10 calendar days before the Final Approval hearing.” (Id. at 4.) The Court would prefer

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the standard 28-day briefing schedule set forth under Local Rule 230.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The March 15, 2019 hearing of plaintiff’s motion for preliminary approval of class

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action settlement is continued to March 29, 2019, at 10:00 a.m. in courtroom no. 27 before the

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undersigned; and

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////

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2. On or before March 22, 2019, plaintiff may file a revised proposed Notice of Proposed

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Class Action Settlement and Hearing Date for Court Approval (“Notice”), and a revised proposed

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Order Granting Preliminary Approval of Class Action Settlement addressing the issues noted

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above and/or a supplemental brief, no longer than 10 pages, addressing the issues noted above.

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Dated: March 11, 2019

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DLB:6
DB\orders\orders.consent\bykov1691.cont.hrg.cs.ord

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