1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CIBELLI PACHECO, et al., Case No. 23-cv-01499-AMO
8 Plaintiffs, ORDER DENYING PRELIMINARY 9 v. APPROVAL OF CLASS SETTLEMENT
10 CULTURALINK, LLC, Re: Dkt. Nos. 38, 39 Defendant. 11
12 13 This is a proposed wage and hour class and representative action in which named Plaintiffs 14 Cibelli Pacheco, Hanna Ishchenko, and Alexander Pogorelov (“Named Plaintiffs”) seek 15 preliminary approval of a settlement under Federal Rule of Civil Procedure 23. ECF 38 (“Mot.”). 16 The motion for preliminary approval is fully briefed and suitable for decision without oral 17 argument. Accordingly, the hearing set for June 5, 2025, is VACATED. See Civil L.R. 7-1(b), 18 Fed. R. Civ. Pro. 78(b). The Court TERMINATES as moot Named Plaintiffs’ motion to appear 19 remotely at the hearing. ECF 39. The Court assumes familiarity with the facts and procedural 20 history of this case for purposes of this Order. Having read Named Plaintiffs’ papers and carefully 21 considered the arguments and the relevant legal authority, the Court hereby DENIES the motion 22 as insufficient for at least the following reasons. 23 I. DISCUSSION 24 The Court plainly states in its Civil Standing Order,
25 Any motion for preliminary or final approval of a class action settlement must address the respective guidelines in the Northern 26 District of California’s Procedural Guidance for Class Action Settlements, available at 27 https://www.cand.uscourts.gov/forms/procedural-guidance-for- 1 Martínez-Olguín Civil Standing Order § K. Named Plaintiffs failed completely to address the 2 Procedural Guidance, much less in the order presented on the website. The Court highlights 3 below several of the most glaring shortcomings in the Named Plaintiffs’ motion for preliminary 4 approval and the parties’ proposed settlement. This is not an exhaustive list of deficiencies. It is 5 Named Plaintiffs’ duty to meaningfully engage with the District’s Procedural Guidance for Class 6 Settlements (the “Guidance”). Any renewed motion for preliminary approval shall abide by the 7 Court’s instructions and fulfill the Guidance’s requirements or it too shall be denied. 8 A. Anticipated Class Recovery 9 The District’s Guidance asks parties seeking preliminary approval to specify “The class 10 recovery under the settlement (including details about and the value of injunctive relief), the 11 potential class recovery if plaintiffs had fully prevailed on each of their claims, claim by claim, 12 and a justification of the discount applied to the claims.” See Guidance § 1(c). 13 Here, Named Plaintiffs do not provide an estimated recovery or a range of potential 14 recovery for class members. They fail to include an estimated recovery had the proposed class 15 prevailed on each claim, and they fail to provide any estimate of the discount applied to the 16 claims. These shortcomings alone warrant denial of Named Plaintiffs’ motion for preliminary 17 approval because it prevents the Court from meaningfully assessing the fairness of the proposed 18 settlement. 19 B. Effect on Related Cases 20 The District’s Guidance recommends that parties identify
21 Any other cases that will be affected by the settlement, an explanation of what claims will be released in those cases if the settlement is 22 approved, the class definitions in those cases, their procedural posture, whether plaintiffs' counsel in those cases participated in the 23 settlement negotiations, a brief history of plaintiffs' counsel's discussions with counsel for plaintiffs in those other cases before and 24 during the settlement negotiations, an explanation of the level of coordination between the two groups of plaintiffs' counsel, and an 25 explanation of the significance of those factors on settlement approval. 26 27 See Guidance § 1(d). Here, Plaintiffs fail to clarify whether there exist any other related cases or 1 C. Comparable Outcomes 2 The District’s Guidance instructs counsel to provide information about comparable cases, 3 including settlements and litigation outcomes. Guidance § 11 (“Counsel should summarize this 4 information in easy-to-read charts that allow for quick comparisons with other cases, supported by 5 analysis in the text of the motion.”). There are no comparators provided in Named Plaintiffs’ 6 submission and thus no information against which the Court can assess this settlement. Any 7 renewed motion for preliminary approval shall include comparable outcomes. 8 D. Opt-Outs 9 The District’s Guidance instructs parties seeking approval to provide in their proposed 10 notice clear advice regarding “deadline, methods to opt out, and the consequences of opting out.” 11 Guidance § 4. 12 In this case, Named Plaintiffs state that, following preliminary approval, “The Settlement 13 Administrator will then disperse a packet to members of the Settlement Class giving them notice 14 of the Settlement and 60-days to opt in to the Settlement and 45-days to object to the Settlement or 15 to opt out of the Class by submitting a written request for exclusion.” Mot. at 6. Though this 16 action includes claims under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., Named 17 Plaintiffs’ motion provides no distinction between “opting in” and “opting out” or why there 18 would be distinct deadlines for such options. The proposed notice says nothing about opting in 19 and instead states that all class members who do not opt out will receive a check from the 20 settlement fund and will waive their wage and hour claims. See ECF 38-4 at 29; see also id. at 30 21 (“To receive a cash payment from the Settlement, you need not take any action. If you do nothing, 22 you will receive a cash payment from the Settlement and will give up your rights to be part of any 23 other lawsuit involving the same or similar legal claims as the ones in this case, and will release all 24 such claims.”). Any renewed motion must resolve this dichotomy to provide clear guidance for 25 putative class members. 26 E. Proposed Class Notice 27 The District’s Guidance instructs parties to ensure their proposed class notice is easily 1 about the case and the final approval process. Guidance § 3. 2 Named Plaintiffs’ proposed notice does not clearly identify the courthouses where class 3 members can access case materials, inconsistently referring only to the San Jose Clerk’s Office. 4 ECF 38-4 at 35. Further, the proposed notice states that the final approval hearing will take place 5 in Oakland. Id. These addresses must be revised to clearly state the availability of public access 6 to the case materials at all four courthouses, and the hearing location shall be updated to San 7 Francisco. Also, the notice should include a reminder “to advise class members to check the 8 settlement website or the Court’s PACER site to confirm that the date has not been changed.” 9 Guidance § 3. 10 F. PAGA Claim 11 Named Plaintiffs proceed in this action as representatives of a putative class and as 12 representatives under California’s Private Attorneys General Act (“PAGA”). See First Am. 13 Compl. (ECF 18). A plaintiff who brings a PAGA claim “does so as the proxy or agent of the 14 state’s labor law enforcement agencies,” including the Labor Workforce Development Agency 15 (“LWDA”). Arias v. Superior Ct., 46 Cal. 4th 969, 986 (2009). As such, settlement of PAGA 16 claims typically requires judicial approval to ensure that the settlement meets the standards of 17 being “fundamentally fair, reasonable, and adequate.” O’Connor v. Uber Techs., Inc., 201 F. 18 Supp. 3d 1110, 1133 (N.D. Cal. 2016). 19 Here, the parties agree to dismissal of the PAGA claim as a condition of their proposed 20 settlement.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CIBELLI PACHECO, et al., Case No. 23-cv-01499-AMO
8 Plaintiffs, ORDER DENYING PRELIMINARY 9 v. APPROVAL OF CLASS SETTLEMENT
10 CULTURALINK, LLC, Re: Dkt. Nos. 38, 39 Defendant. 11
12 13 This is a proposed wage and hour class and representative action in which named Plaintiffs 14 Cibelli Pacheco, Hanna Ishchenko, and Alexander Pogorelov (“Named Plaintiffs”) seek 15 preliminary approval of a settlement under Federal Rule of Civil Procedure 23. ECF 38 (“Mot.”). 16 The motion for preliminary approval is fully briefed and suitable for decision without oral 17 argument. Accordingly, the hearing set for June 5, 2025, is VACATED. See Civil L.R. 7-1(b), 18 Fed. R. Civ. Pro. 78(b). The Court TERMINATES as moot Named Plaintiffs’ motion to appear 19 remotely at the hearing. ECF 39. The Court assumes familiarity with the facts and procedural 20 history of this case for purposes of this Order. Having read Named Plaintiffs’ papers and carefully 21 considered the arguments and the relevant legal authority, the Court hereby DENIES the motion 22 as insufficient for at least the following reasons. 23 I. DISCUSSION 24 The Court plainly states in its Civil Standing Order,
25 Any motion for preliminary or final approval of a class action settlement must address the respective guidelines in the Northern 26 District of California’s Procedural Guidance for Class Action Settlements, available at 27 https://www.cand.uscourts.gov/forms/procedural-guidance-for- 1 Martínez-Olguín Civil Standing Order § K. Named Plaintiffs failed completely to address the 2 Procedural Guidance, much less in the order presented on the website. The Court highlights 3 below several of the most glaring shortcomings in the Named Plaintiffs’ motion for preliminary 4 approval and the parties’ proposed settlement. This is not an exhaustive list of deficiencies. It is 5 Named Plaintiffs’ duty to meaningfully engage with the District’s Procedural Guidance for Class 6 Settlements (the “Guidance”). Any renewed motion for preliminary approval shall abide by the 7 Court’s instructions and fulfill the Guidance’s requirements or it too shall be denied. 8 A. Anticipated Class Recovery 9 The District’s Guidance asks parties seeking preliminary approval to specify “The class 10 recovery under the settlement (including details about and the value of injunctive relief), the 11 potential class recovery if plaintiffs had fully prevailed on each of their claims, claim by claim, 12 and a justification of the discount applied to the claims.” See Guidance § 1(c). 13 Here, Named Plaintiffs do not provide an estimated recovery or a range of potential 14 recovery for class members. They fail to include an estimated recovery had the proposed class 15 prevailed on each claim, and they fail to provide any estimate of the discount applied to the 16 claims. These shortcomings alone warrant denial of Named Plaintiffs’ motion for preliminary 17 approval because it prevents the Court from meaningfully assessing the fairness of the proposed 18 settlement. 19 B. Effect on Related Cases 20 The District’s Guidance recommends that parties identify
21 Any other cases that will be affected by the settlement, an explanation of what claims will be released in those cases if the settlement is 22 approved, the class definitions in those cases, their procedural posture, whether plaintiffs' counsel in those cases participated in the 23 settlement negotiations, a brief history of plaintiffs' counsel's discussions with counsel for plaintiffs in those other cases before and 24 during the settlement negotiations, an explanation of the level of coordination between the two groups of plaintiffs' counsel, and an 25 explanation of the significance of those factors on settlement approval. 26 27 See Guidance § 1(d). Here, Plaintiffs fail to clarify whether there exist any other related cases or 1 C. Comparable Outcomes 2 The District’s Guidance instructs counsel to provide information about comparable cases, 3 including settlements and litigation outcomes. Guidance § 11 (“Counsel should summarize this 4 information in easy-to-read charts that allow for quick comparisons with other cases, supported by 5 analysis in the text of the motion.”). There are no comparators provided in Named Plaintiffs’ 6 submission and thus no information against which the Court can assess this settlement. Any 7 renewed motion for preliminary approval shall include comparable outcomes. 8 D. Opt-Outs 9 The District’s Guidance instructs parties seeking approval to provide in their proposed 10 notice clear advice regarding “deadline, methods to opt out, and the consequences of opting out.” 11 Guidance § 4. 12 In this case, Named Plaintiffs state that, following preliminary approval, “The Settlement 13 Administrator will then disperse a packet to members of the Settlement Class giving them notice 14 of the Settlement and 60-days to opt in to the Settlement and 45-days to object to the Settlement or 15 to opt out of the Class by submitting a written request for exclusion.” Mot. at 6. Though this 16 action includes claims under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., Named 17 Plaintiffs’ motion provides no distinction between “opting in” and “opting out” or why there 18 would be distinct deadlines for such options. The proposed notice says nothing about opting in 19 and instead states that all class members who do not opt out will receive a check from the 20 settlement fund and will waive their wage and hour claims. See ECF 38-4 at 29; see also id. at 30 21 (“To receive a cash payment from the Settlement, you need not take any action. If you do nothing, 22 you will receive a cash payment from the Settlement and will give up your rights to be part of any 23 other lawsuit involving the same or similar legal claims as the ones in this case, and will release all 24 such claims.”). Any renewed motion must resolve this dichotomy to provide clear guidance for 25 putative class members. 26 E. Proposed Class Notice 27 The District’s Guidance instructs parties to ensure their proposed class notice is easily 1 about the case and the final approval process. Guidance § 3. 2 Named Plaintiffs’ proposed notice does not clearly identify the courthouses where class 3 members can access case materials, inconsistently referring only to the San Jose Clerk’s Office. 4 ECF 38-4 at 35. Further, the proposed notice states that the final approval hearing will take place 5 in Oakland. Id. These addresses must be revised to clearly state the availability of public access 6 to the case materials at all four courthouses, and the hearing location shall be updated to San 7 Francisco. Also, the notice should include a reminder “to advise class members to check the 8 settlement website or the Court’s PACER site to confirm that the date has not been changed.” 9 Guidance § 3. 10 F. PAGA Claim 11 Named Plaintiffs proceed in this action as representatives of a putative class and as 12 representatives under California’s Private Attorneys General Act (“PAGA”). See First Am. 13 Compl. (ECF 18). A plaintiff who brings a PAGA claim “does so as the proxy or agent of the 14 state’s labor law enforcement agencies,” including the Labor Workforce Development Agency 15 (“LWDA”). Arias v. Superior Ct., 46 Cal. 4th 969, 986 (2009). As such, settlement of PAGA 16 claims typically requires judicial approval to ensure that the settlement meets the standards of 17 being “fundamentally fair, reasonable, and adequate.” O’Connor v. Uber Techs., Inc., 201 F. 18 Supp. 3d 1110, 1133 (N.D. Cal. 2016). 19 Here, the parties agree to dismissal of the PAGA claim as a condition of their proposed 20 settlement. See Settlement Agreement ¶ 27. The Named Plaintiffs do not acknowledge the 21 dismissal of this representative claim in their brief. Any renewed motion for preliminary approval 22 shall address whether dismissal of the PAGA claim without LWDA approval at this stage is 23 appropriate. 24 II. CONCLUSION 25 For the foregoing reasons, the Court DENIES Named Plaintiffs’ motion for preliminary 26 approval of the class settlement. If they can remedy the deficiencies outlined above, Named 27 Plaintiffs may file a renewed motion within 30 days of this order. In addition to addressing the 1 Procedural Guidance for Class Action Settlements. Moreover, the renewed motion must provide 2 || more fulsome discussion of the warning signs that courts must look for before concluding that the 3 settlement is non-collusive as identified by the Ninth Circuit in the matter of In re Bluetooth 4 Headset Prod. Liab. Litig., 654 F.3d 935, 938 (9th Cir. 2011). Finally, any renewed motion must 5 || be accompanied by signed versions of Named Plaintiffs’ declarations and any other supporting 6 || materials. 7 Should Named Plaintiffs elect to not file a renewed approval motion within 30 days, the 8 || parties must file a joint status report within 45 days, with a proposal for how this litigation should 9 || proceed. 10 11 IT IS SO ORDERED. a 12 Dated: May 30, 2025
13 □□ 7 S ARACELI MARTINEZ-OLGUIN 5 United States District Judge 16
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