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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 BRIAN MAS, 9 Plaintiff, 10 v. 11 For the Northern District of California United States District Court No. C-10-1396 EMC CUMULUS MEDIA INC., 12 ORDER (SECOND) RE ADDITIONAL BRIEFING FOR OCTOBER 28, 2011 HEARING Defendant. ___________________________________/ 13 14 15 Pursuant to Court order, the parties filed on October 19, 2011, supplemental briefing related 16 to the motion for preliminary approval of the class action settlement. Having reviewed the 17 supplemental briefing, the Court orders that further briefing be provided on the following. 18 A. 19 Claims Procedure and Claims Rate The Court shall not require briefing but notes, consistent with its prior order, that the parties 20 should still be prepared to discuss the necessity of having a claims procedure and the anticipated 21 claims rate. 22 B. 23 24 25 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 26 worked by a class member and the average hourly rate. (The Court understands based on prior 27 briefing that the total number of weeks is about 6,500 for 89 class members. See Mot. at 6, 8. With 28 1 approximately $660,000 net being set aside for the class (i.e., excluding attorney’s fees), it appears 2 that a class member will get about $100 per work week.) 3 In addition to the above, the parties should explain why, with respect to the damages 4 calculated, it is fair to estimate overtime at half an hour per week and expenses at $50 per week, 5 particularly when the calculation here is supposed to be maximum potential damages. In other 6 words, disregarding problems with evidentiary proof, how many overtime hours did an average class 7 member allegedly work per week and how much unreimbursed business expenses did an average 8 class member allegedly incur? 9 C. The parties should explain whether they have a basis for believing that all class members, 11 For the Northern District of California United States District Court 10 Strengths and Weaknesses in Plaintiff’s Case and not just Plaintiff, Ms. Phillips, and/or Ms. Stanton, would have problems with evidentiary proof, 12 both as to overtime and business expenses. 13 14 In addition, the parties should explain what overtime exemption is potentially applicable and/or why no exemption is applicable. 15 Finally, Plaintiff should clarify whether there is any basis for believing that Defendant acted 16 willfully or intentionally for purposes of California Labor Code §§ 203 and 226. 17 D. Incentive Awards 18 There are no declarations to support the hours claimed by Plaintiff, Ms. Phillips, and/or Ms. 19 Stanton. The Court notes that it is particularly troubled by the hours claimed by Plaintiff (in excess 20 of 400 hours), especially given that the case was initiated in early 2010 and settled in a mediation 21 that took place in April 2011. In addition, there are no declarations to support the claim that 22 Plaintiff, Ms. Phillips, and/or Ms. Stanton have had difficulty obtaining employment, and there is no 23 evidence indicating that any difficulty in obtaining employment is linked to their participation in this 24 lawsuit. Finally, there is no evidence to support the claim that Plaintiff himself would be personally 25 liable for costs if he were not to prevail (as opposed, e.g., to his attorneys agreeing to cover the 26 costs). 27 28 2 1 If Plaintiff wishes to submit declarations to address the above, he may do so. To the extent 2 he claims that he has spent in excess of 400 hours, he must provide more specific information as to 3 how that time was spent. 4 Supplemental briefing shall be filed by noon on October 25, 2011. 5 6 IT IS SO ORDERED. 7 8 Dated: October 20, 2011 9 _________________________ EDWARD M. CHEN United States District Judge 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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