Articles from July 2017

After the district court rejected their first deal in McKnight, et al. v. Uber Technologies, Inc., et al., No. 3:14-cv-05615-JST (N.D. Cal.), the plaintiffs and Uber have submitted an amended settlement for approval. See Plaintiffs’ Notice of Motion and Motion for Preliminary Approval of Class Action Settlement, available here. The $32.5 million settlement would resolve the plaintiffs’ claims that Uber misled consumers about the quality of the background checks on the drivers and whether all of the “safe rides” fees charged by Uber go toward safety measures. The revised deal adds $4 million to the fund. More importantly, the amended settlement now excludes consumers who did not pay the “safe rides” fee, reducing the class size by over 2 million, according to the plaintiffs in their motion for preliminary approval.

The restructured deal is aimed at fixing problems identified by District Judge Jon S. Tigar in denying preliminary approval of the parties’ initial settlement. See Order Denying Motion for Preliminary Approval, Philliben, et al. v. Uber Technologies, Inc., et al., No. 3:14-cv-05615-JST (N.D. Cal. Aug. 30, 2016) (slip op. available here). According to Judge Tigar, the initial settlement fell short of the standard for preliminary approval because it failed to distinguish between consumers who paid the “safe rides” fee from those who had not—all were paid under the same payment formula. For Judge Tigar, the settlement structure unfairly diluted the payments to consumers who were more deserving of payment. By excluding consumers who did not pay the “safe rides” fee from the class definition, the amended settlement eliminates the dilution problem. Those excluded consumers also would not be releasing any claims, so they retain the right to pursue claims on their own. Judge Tigar also asked for more extensive analysis of the value of the claims had the class prevailed at trial, which the plaintiffs provide in the renewed motion for preliminary approval.

Consumer and plaintiffs’ advocates should continue to monitor this settlement to get a further read on how courts are evaluating settlements involving the controversial ride-sharing company. To be sure, the prior version of the settlement illustrates the danger of a settlement that sweeps too broadly and fails to tailor the settlement structure to the allegations in the complaint. While the amended settlement appears to represent a strong victory for consumers, the court will surely scrutinize the settlement closely. The closely-watched preliminary approval hearing scheduled for July 6 was vacated on June 27, 2017; the court is expected to issue its order shortly.

Authored By:
Ryan Wu, Senior Counsel
CAPSTONE LAW APC

Following three rounds of briefing in support of Plaintiff Vardan Karapetyan’s motion for preliminary approval of his class action settlement, on June 12, 2017, U.S. District Judge George H. Wu granted preliminary approval of a $5 million wage-and-hour settlement on behalf of current and former employees of Defendants ABM Industries Incorporated and ABM Security Services, Inc. in Karapetyan v. ABM Industries Inc., et al., No. CV15-08313GW, Order Granting Preliminary Approval of Class Action Settlement (C.D. Cal. June 12, 2017) (slip op. available here).

The plaintiff alleged that ABM violated the California Labor Code by not providing class members with meal and rest breaks; failing to pay premium wages for missed meal and rest breaks, overtime wages, other unspecified unpaid wages, and wages upon termination; and by failing to provide accurate wage statements. Following the California Supreme Court’s decision in Augustus v. ABM Security Services, Inc. (2016) 2 Cal. 5th 257, which clarified that employers may not require employees to take on-duty and/or on-call rest periods (previously covered on ILJ here), the parties agreed to participate in mediation. With the mediator’s guidance, the parties settled the claims for a $5 million non-reversionary common fund, inclusive of class member payments (proportional to the number of weeks each class member worked during the class period), administrative costs, an incentive award, attorneys’ fees and costs, a payment to the Labor and Workforce Development Agency, and payroll taxes. The plaintiff moved for preliminary approval of the class action settlement on April 19, 2017.

On May 1, 2017, Judge Wu denied the motion on class certification grounds; namely, that Karapetyan had failed to demonstrate through sufficient evidence that the typicality and predominance elements of conditional class certification had been met. Karapetyan v. ABM Industries Inc., et al., No. CV15-08313GW, Order Denying Preliminary Approval of Class Action Settlement (C.D. Cal. May 1, 2017), at 2 (slip op. available here). Within a few weeks of the denial, the plaintiff renewed his motion for preliminary approval with an expanded typicality and predominance analysis. The renewed motion persuaded Judge Wu that conditional certification of the proposed settlement class was appropriate, but fell short of demonstrating to his satisfaction that the settlement was within the range of possible approval: “ . . . Plaintiff does not appear to provide the Court with any information of what amount he believes may have been recoverable if this case were litigated to completion. While the Court recognizes that settlement of complex actions such as the instant one are seen as favorable, . . . it may be difficult for the Court to determine whether the settlement figure is “within the range of possible approval” absent some information on the potential recovery. Plaintiff also does not indicate what the average recovery might be as a result of the settlement.” Karapetyan v. ABM Industries Inc., et al., No. CV15-08313GW, Order on Amended Motion for Preliminary Approval (C.D. Cal. June 5, 2017), at 4-5 (slip op. available here).

In the third and final round of briefing, the plaintiff argued that that the maximum possible award at trial would be between $12 and $16 million dollars, given which, the settlement was within the range of possible approval:

Augustus provides a benchmark [for evaluating the claims in this case], as it was litigated to completion under similar facts. Augustus was a $90 million judgment covering 10 years, almost 15,000 employees and certain undisputed evidence which led to a finding of liability, damages, interest and penalties. The case before this Court has about 4 years of exposure, 7,000 employees, the possibility of arbitration agreements impacting or limiting the litigation, less pre-judgment interest, and different testimony and documentation on liability. I believe the recovery in this case, had it proceeded, would reasonably be in the range of $12 million to $16 million.

Karapetyan v. ABM Industries Inc., et al., No. CV15-08313GW, Declaration of Michael B. Adreani in Support of Amended Motion for Preliminary Approval, at 6 (available here).

On the strength of these recitals, Judge Wu found that the settlement was within the range of possible approval, and, after having reviewed and approved the parties’ amendments to the settlement (the parties were asked to amend the settlement to address certain “nits”), granted preliminary approval of the $5 million settlement. Note that despite having to submit three rounds of briefing in support of the motion for preliminary approval, the concise analysis above was all that was needed to establish that the settlement was within the range of reasonableness. This is because at the preliminary approval stage, the moving party need only establish that the settlement is “’within the range of possible approval’ and whether or not notice should be sent to class members” rather than whether the settlement is in fact “fair, reasonable, and adequate,” pursuant to Fed. R. Civ. P. 23(e)(2), a determination which is made at the final approval stage. Karapetyan v. ABM Industries Inc., et al., No. CV15-08313GW, Order on Amended Motion for Preliminary Approval (C.D. Cal. June 5, 2017), at 2-3.

The final fairness hearing is set for September 7, 2017, at 8:30 a.m.

Authored by:
Eduardo Santos, Associate
CAPSTONE LAW APC