Jones v. TireHub, LLC, No. 2:2021cv00564 - Document 67 (E.D. Cal. 2023)
Court Description: STIPULATION and ORDER signed by Magistrate Judge Deborah Barnes on 6/2/2023 GRANTING 66 Stipulation MODIFYING Order Granting Preliminary Approval of Class Action Settlement. (Perdue, C.)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 SCOTT EDWARD COLE (S.B. #160744) LAURA VAN NOTE (S.B. #310160) CODY ALEXANDER BOLCE (S.B. #322725) COLEth& VAN NOTE 555 12 Street, Suite 1725 Oakland, California 94607 Telephone: (510) 891-9800 Facsimile: (510) 891-7030 Email: sec@colevannote.com Email: lvn@colevannote.com Email: cab@colevannote.com Attorneys for Plaintiff, DONSHEA JONES EUGENE RYU, Bar No. 209104 Gene.Ryu@klgates.com PENNY CHEN, Bar No. 280706 Penny.Chen@klgates.com ALISON HAMER, Bar No. 258281 Alison.Hamer@klgates.com PAUL SUH, Bar No. 321028 Paul.Suh@klgates.com K&L GATES LLP 10100 Santa Monica Blvd. 8th Floor Los Angeles, CA 90067 Telephone: 310.553.5000 Fax No.: 310.553.5001 Attorneys for Defendant, TIREHUB, LLC 17 UNITED STATES DISTRICT COURT 18 EASTERN DISTRICT OF CALIFORNIA 19 20 21 22 DONSHEA JONES, individually, and on behalf of all others similarly situated. Plaintiff, 23 24 25 v. TIREHUB, LLC, and DOES 1-100, inclusive, 26 Defendants. 27 28 315676855.1 No. 2:21-cv-0564 DB JOINT REQUEST TO MODIFY ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND ORDER 1 JOINT REQUEST TO MODIFY ORDER GRANTING PRELIMINARY 2 APPROVAL OF CLASS ACTION SETTLEMENT 3 Plaintiff Donshea Jones (“Plaintiff”), on behalf of himself individually and on 4 behalf of all members of the Plaintiff Class (“Plaintiffs”), and Defendant Tirehub LLC 5 (“Defendant”) (Plaintiffs and Defendant are collectively referred to as “the Parties”) 6 respectfully request that the Court modify the May 25, 2023 Order granting Plaintiff’s 7 Motion for Preliminary Approval of a Class Action Settlement (“Order”) (Doc. 65) to: 8 (1) correct the deadline for Defendant to provide the Settlement Administrator the class 9 list to be 10 business days, rather than 10 calendar days, from this Court’s Order; (2) 10 correct the deadline for Defendant to fund the gross settlement amount to be 21 calendar 11 days after the Effective Date of the Settlement rather than 21 calendar days after this 12 Court’s Order; and (3) approve the version of the Class Notice that the Parties jointly 13 approved prior to Plaintiff filing the Motion for Preliminary Approval of Class Action 14 Settlement rather than the Class Notice inadvertently attached to Plaintiff’s Motion for 15 Preliminary Approval of Class Action Settlement. BACKGROUND 16 17 WHEREAS, the Parties executed a Wage and Hour Class Action Settlement 18 Agreement and Release of Claims (“Settlement Agreement”) in which the Parties 19 agreed to various deadlines relating to the administration of the Settlement. (Doc. 55- 20 1, Ex. A.) 21 WHEREAS, Paragraph 54 of the Settlement Agreement provides: “Within ten 22 (10) business days of the entry of an Order granting preliminary approval of the 23 Settlement and Class Notice, Defendant will provide the Settlement Administrator a 24 ‘Plaintiff Class List,’ which shall include the first and last name, the last known 25 addresses, the social security number, the number of Compensable Workweeks that 26 each member of the Plaintiff Class worked for Defendant during the Settlement Period, 27 and the number of Compensable Pay Periods that each PAGA Employee worked during 28 the PAGA Period.” (Id. at ¶ 54) (Emphasis added.) 2. 315676855.1 1 WHEREAS, the Court’s Order set a Final Hearing Schedule requiring Defendant 2 to provide the Class List to the Settlement Administrator “[w]ithin 10 calendar days of 3 the date of this order. (Doc. 65 at p. 9:26-27.) (Emphasis added.) 4 WHEREAS, Paragraph 35 of the Settlement Agreement provides: “Within 5 twenty-one (21) calendar days after the Effective Date, Defendant shall transfer to 6 the Settlement Administrator an amount equal to the Gross Settlement Fund and the 7 employer’s share of payroll taxes.” (Doc. 55-1, Ex. A ¶ 35) (Emphasis added.) 8 WHEREAS, Paragraph 10 of the Settlement Agreement defines the Effective 9 Date to mean “61 days following the date on which the District Court’s Order granting 10 final approval of this Settlement Agreement (‘Final Approval Order’) becomes final. 11 The Superior (sic) Court’s Order ‘becomes final’ upon the last of the following to occur: 12 a. 13 14 15 b. c. 16 17 when the period for filing any appeal, writ, intervention, or other proceeding opposing Settlement has elapsed without any appeal, writ, intervention, or other proceeding having been filed; when any appeal, writ, intervention, or other proceeding opposing the Settlement has been dismissed finally and conclusively with no right to pursue further remedies or relief; or when any appeal, writ, intervention, or other proceeding has upheld the Court’s Final Order and Judgment with no right to pursue further remedies or relief. (Id. at ¶ 32.) 18 WHEREAS, the Court’s Order setting a Final Hearing Schedule ordered 19 “Defendant to make payment of the Gross Settlement Amount to the Settlement 20 Administrator” “[w]ithin 21 calendar days of the date of this order.” (Doc. 65 at p. 21 9:23-24.) (Emphasis added.) 22 WHEREAS, the Parties jointly approved submitting Exhibit A to this Joint 23 Request as the Class Notice to Plaintiff’s Motion for Preliminary Approval of Class 24 Action Settlement. 25 26 27 28 WHEREAS, Plaintiff’s counsel inadvertently submitted an erroneous version of the Class Notice. WHEREAS, the Court’s Order approved the erroneous version of the Class Notice. 3. 315676855.1 1 REASONS FOR MODIFYING THE ORDER 2 First, the Parties respectfully request that the Court modify its Order to correct 3 the deadline for Defendant to provide the Settlement Administrator the class list to be 4 10 business days, rather than 10 calendar days, from this Court’s Order. Given that the 5 Parties received notice of the Court’s Order on Friday May 26 before the Memorial Day 6 holiday, 10 business days would place this deadline on June 12, 2023, whereas 10 7 calendar days would place this deadline on June 5, 2023. Because the Settlement 8 Agreement provides Defendant a release through the date of the Court’s Order (Doc. 9 55-1, Ex. A ¶ 13), Defendant must prepare a settlement list with the number of 10 workweeks and pay periods the Plaintiff Class and PAGA Employees worked through 11 May 26, 2023. Defendant is unable to do so by June 5, 2023. 12 Second, the Parties respectfully request that the Court modify its Order to correct 13 the deadline for Defendant to fund the Gross Settlement Amount to be 21 calendar days 14 after the Effective Date of the Settlement rather than 21 calendar days after this Court’s 15 Order. It is unlikely that the Settlement Administrator will have set up an escrow 16 account within 21 calendar days of the Court’s Order. It is also unlikely that the 17 Settlement Administrator will have calculated the payroll taxes Defendant must provide 18 when funding the Gross Settlement Amount within 21 calendar days of the Court’s 19 Order. Moreover, the Parties’ Settlement Agreement provides that Defendant is only 20 obligated to fund the Gross Settlement Amount upon the Effective Date, which is 21 contingent upon this Court granting final approval of the class action settlement and the 22 exhaustion of any appeals (amongst other events) that may affect the finality of this 23 class action settlement. 24 Agreement reflects the Parties’ meeting of the minds with respect to timing of the 25 settlement payment, and conditions that must be satisfied before funding obligations are 26 triggered. 27 28 (Doc. 55-1, Ex. A ¶¶ 32, 35.) Further, the Settlement Last, the Parties respectfully request that the Court approve the Class Notice attached hereto as Exhibit A, which the Parties mutually approve. 4. 315676855.1 The Parties agree that modifying the Court’s Order to be consistent with the 1 2 terms of the Settlement Agreement and the requested modifications do not prejudice 3 any party, including the Plaintiff Class, and rather, doing so would alleviate the 4 prejudice resulting from additional burdens and shortened timeline not contemplated 5 by the Parties when the settlement was reached. 6 7 Dated: June 2, 2023 8 /s/ Penny Chen EUGENE RYU PENNY CHEN ALISON HAMER PAUL SUH K&L GATES, LLP Attorneys for Defendant TIREHUB, LLC 9 10 11 12 13 Dated: June 2, 2023 /s/ Laura Van Note SCOTT EDWARD COLE LAURA GRACE VAN NOTE COLE & VAN NOTE Attorneys for Plaintiff DONSHEA JONES 14 15 16 17 18 19 Pursuant to Local Rule 131, I attest that concurrence in the filing of this document has been obtained from each of the other signatories who are listed on the signature pages. 20 21 Dated: June 2, 2023 /s/ Penny Chen PENNY CHEN 22 23 24 25 26 27 28 5. 315676855.1 ORDER 1 2 FOR GOOD CAUSE SHOWN, and based on the Parties’ Joint Request to 3 Modify Order Granting Preliminary Approval of Class Settlement, it is hereby 4 ORDERED that the May 25, 2023 Order granting Plaintiff’s Motion for Preliminary 5 Approval of a Class Action Settlement (“Order”) is hereby modified as follows: 6 1. The timeline on page 9 of the Order shall hereby be modified to the 7 following: 8 9 Defendant to make payment of the Within 21 calendar days of the 10 Gross Settlement Amount to the Effective Date of the Settlement. 11 Settlement Administrator. 12 Defendant to provide Class List to Within 10 business days of the Court 13 the Settlement Administrator. Order on May 26, 2023. 14 15 16 17 2. The Court approves, as to form and content, the Class Action Notice attached to the Joint Request to Modify Order Granting Preliminary Approval of Class Settlement as Exhibit A. 18 19 Dated: June 2, 2023 20 21 22 23 24 25 26 27 providing notice of its May 25, 2023 DLB:6 DB\orders\orders.consent\jones0564.stip.mod.approv.ord 28 315676855.1
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