Mas v. Cumulus Media Inc.

Filing 62

ORDER (Second) re Additional Briefing for October 23, 2011 Hearing. Signed by Judge Edward M. Chen on 10/20/2011. (emclc1, COURT STAFF) (Filed on 10/20/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BRIAN MAS,

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Plaintiff,

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v.

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For the Northern District of California

United States District Court

No. C-10-1396 EMC

CUMULUS MEDIA INC.,

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ORDER (SECOND) RE ADDITIONAL
BRIEFING FOR OCTOBER 28, 2011
HEARING

Defendant.
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Pursuant to Court order, the parties filed on October 19, 2011, supplemental briefing related

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to the motion for preliminary approval of the class action settlement. Having reviewed the

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supplemental briefing, the Court orders that further briefing be provided on the following.

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A.

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Claims Procedure and Claims Rate
The Court shall not require briefing but notes, consistent with its prior order, that the parties

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should still be prepared to discuss the necessity of having a claims procedure and the anticipated

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claims rate.

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B.

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Amount Offered in Settlement
If the parties could provide the underlying calculations for the damages itemized, that would

be helpful to the Court.
Also, it would be helpful to the Court to get information about the average number of weeks

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worked by a class member and the average hourly rate. (The Court understands based on prior

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briefing that the total number of weeks is about 6,500 for 89 class members. See Mot. at 6, 8. With

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approximately $660,000 net being set aside for the class (i.e., excluding attorney’s fees), it appears

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that a class member will get about $100 per work week.)

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In addition to the above, the parties should explain why, with respect to the damages

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calculated, it is fair to estimate overtime at half an hour per week and expenses at $50 per week,

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particularly when the calculation here is supposed to be maximum potential damages. In other

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words, disregarding problems with evidentiary proof, how many overtime hours did an average class

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member allegedly work per week and how much unreimbursed business expenses did an average

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class member allegedly incur?

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C.

The parties should explain whether they have a basis for believing that all class members,

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For the Northern District of California

United States District Court

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Strengths and Weaknesses in Plaintiff’s Case

and not just Plaintiff, Ms. Phillips, and/or Ms. Stanton, would have problems with evidentiary proof,

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both as to overtime and business expenses.

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In addition, the parties should explain what overtime exemption is potentially applicable
and/or why no exemption is applicable.

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Finally, Plaintiff should clarify whether there is any basis for believing that Defendant acted

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willfully or intentionally for purposes of California Labor Code §§ 203 and 226.

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D.

Incentive Awards

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There are no declarations to support the hours claimed by Plaintiff, Ms. Phillips, and/or Ms.

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Stanton. The Court notes that it is particularly troubled by the hours claimed by Plaintiff (in excess

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of 400 hours), especially given that the case was initiated in early 2010 and settled in a mediation

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that took place in April 2011. In addition, there are no declarations to support the claim that

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Plaintiff, Ms. Phillips, and/or Ms. Stanton have had difficulty obtaining employment, and there is no

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evidence indicating that any difficulty in obtaining employment is linked to their participation in this

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lawsuit. Finally, there is no evidence to support the claim that Plaintiff himself would be personally

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liable for costs if he were not to prevail (as opposed, e.g., to his attorneys agreeing to cover the

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costs).

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If Plaintiff wishes to submit declarations to address the above, he may do so. To the extent

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he claims that he has spent in excess of 400 hours, he must provide more specific information as to

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how that time was spent.

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Supplemental briefing shall be filed by noon on October 25, 2011.

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IT IS SO ORDERED.

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Dated: October 20, 2011

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_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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