Deaver v. BBVA Compass Consulting and Benefits, Inc. et al

Filing 88

ORDER RE: SUPPLEMENTAL BRIEFING ON MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT. Signed by Magistrate Judge Jacqueline Scott Corley on 7/27/2015. (ahm, COURT STAFF) (Filed on 7/27/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHERYL DEAVER,

Case No. 13-cv-00222-JSC

Plaintiff,
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v.
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COMPASS BANK, et al.,
Defendants.

United States District Court
Northern District of California

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ORDER RE: SUPPLEMENTAL
BRIEFING ON MOTION FOR
PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT
Re: Dkt. Nos. 75, 87

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Plaintiff Cheryl Deaver and Defendants Compass Bank, Inc. (“Compass”) and BBVA

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Compass Insurance Agency, Inc. (“BBVA”) seek preliminary approval of a class action settlement

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in this pre-certification wage and hour action. The Court heard oral argument regarding the

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motion for preliminary approval on June 4, 2015, and in response to questions raised by the Court,

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the parties submitted an Amended Stipulation Re: Class Action Settlement on July 13, 2015.

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(Dkt. No. 87.) The Court has reviewed the amended stipulation and attached documentation

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including the claim form and notice, and requests additional briefing regarding two matters.

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First, although Plaintiff withdrew her claim pursuant to the Private Attorneys General Act

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of 2004 (“PAGA”) in her Revised Second Amended Complaint, the proposed settlement includes

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a release of all PAGA claims. (Dkt. No. 61.) Further, despite the release, no civil penalties are to

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be paid under the settlement in accordance with PAGA. See Iskanian v. CLS Transp. Los Angeles,

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LLC, 59 Cal. 4th 348, 379-81 (2014) cert. denied, 135 S. Ct. 1155 (2015) (discussing civil

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penalties under PAGA); Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157, 1213

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(2008)(PAGA penalties are “mandatory, not discretionary”).

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Second, in In re Mercury Interactive Corp. Securities Litigation, 618 F.3d 988 (9th Cir.
2010), the Ninth Circuit held that the “plain text” of Rule 23(h) of the Federal Rules of Civil

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Procedure “requires that any class member be allowed an opportunity to object to the fee ‘motion’

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itself, not merely to the preliminary notice that such a motion will be filed.” Id. at 993-94. The

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notice here only advises class members of their rights to object to the settlement itself. (Dkt. No.

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87-1 at 5.) In accordance with Mercury Interactive, the notice must advise class members of their

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right to object to the fee motion either in combination with a general objection to the settlement or

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independently. The parties must also include a schedule for filing the motion for attorneys’ fees

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and costs which ensures adequate time for class members to review the motion prior to the

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deadline for submitting objections. See id. at 993-94 (“The plain text of the rule requires a district

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court to set the deadline for objections to counsel’s fee request on a date after the motion and
documents supporting it have been filed.”); Bellinghausen v. Tractor Supply Co., 303 F.R.D. 611,

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United States District Court
Northern District of California

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622 (N.D. Cal. 2014)(amending the schedule to allow adequate time for class members to review

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the motion and file an objection).

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The parties shall submit a second amended stipulation or other joint filing which addresses
these issues by August 17, 2015.
IT IS SO ORDERED.
Dated: July 27, 2015

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________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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