Wed, Aug 30, 2023

The Kroll Lens: Monitoring Class Action Settlements – 2023, Volume V

In Volume 5 of Kroll’s Class Action Lens, we examine recent court decisions from the Eastern District of California, the Southern District of Florida and the District of Delaware.
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Disclaimer: Please note that the content below is intended to report on class action decisions, and Kroll's Settlement Administration practice may not have been involved with these cases.

Almanzar v. Home Depot U.S.A., Inc.

No. 2:20-cv-0699, 2023 WL 4373979 (E.D. Cal. Jul 6, 2023) (Newman, Mag. J.)

A class of employees brought a Rule 23 and PAGA suit against their employer, Home Depot U.S.A., Inc., alleging wage and break law violations. After the Court denied an initial motion for preliminary approval, Plaintiffs filed an amended motion.

The Court granted the revised motions, reasoning first that the class had adequate representation and the settlement was negotiated at arms’ length. Turning then to whether relief was adequate and whether class members were treated equitably among each other, the Court found that the method of distribution of relief and the terms of fees and related agreements favored approval. The Court then considered the cost and risk of proceeding to trial. The Court found that the class settlement amount of $712,000 was about 6% of the maximum potential damages amount, which was within the range of approval in the light of potential weaknesses for each claim and a low likelihood of success on the merits.


Looking next at equitable treatment of class members, the Court noted that the distribution formula had been a subject of inquiry in its previous denial. The renewed motion provided additional information that had been requested by the Court as to hourly wage rates, which satisfied the Court despite the possibility that some variability may remain. The Court also found that the creation of a subclass to award "waiting time penalties" for those who had left their employment during the class period favored approval as well.

The Court reviewed the settlement of PAGA claims separately, questioning the low percentage amount (under 1% of the $10 million potential maximum). However, the Court found this was reasonable and "relatively substantial" given the weakness of claims. The Court also looked favorably upon the fact that the parties had added information to the notices regarding the PAGA release terms and payments. The Court further found that the notice was reasonable.

In granting approval of the motion, the Court also requested that the parties file a Second Amended Complaint with a modification striking five subclasses for which certification was never sought.

In Re: Google, Inc. Cookie Placement Consumer Privacy Litigation

No. 12-MD-2358, 2023 WL 4420431 (D. Del. Jul 10, 2023) (Robreno, J.)

A class of web browser users commenced an action against Google, Inc., alleging privacy settings issues related to use of the program. Plaintiffs filed a motion for final certification and final approval, but the Court denied the motion, finding it necessary for Plaintiffs to establish ascertainability as a prerequisite for certification, which counsel had conceded could not be met.

In support of its decision, the Court first looked at Rule 23(a). Numerosity was met by the parties' statements that it would be impossible to identify every affected individual. The Court also found that commonality and typicality both stemmed from the actions of the company regarding the class as a whole and whether these practices violated California law. Additionally, the Court found that counsel was experienced and that no conflicts existed that would undermine adequacy.

Turning next to Rule 23(b), the Court found that certification as a Rule 23(b)(2) injunctive class had been rejected by the Third Circuit, and that the parties now sought Rule 23(b)(3) certification but with the argument that the class should be certified under Rule 23(b)(2) anyway, and not the heightened requirements of subsection (b)(3). The Court rejected this standard and instead considered certification under Rule 23(b)(3) for predominance and superiority.


The Court began this review by noting the Third Circuit’s precedent requiring that the class be ascertainable for certification under 23(b)(3). Here, the parties had conceded that the class was not ascertainable but argued that the ascertainability prong concerning a feasible identification mechanism was unnecessary and irrelevant to such a class. The Court disagreed, finding that such a mechanism was necessary (among other reasons) to ensure the clear identification of those to be bound by a final judgment, as well as to protect the rights of absent class members.

As such, the Court did not complete the analysis of the settlement agreement for fairness.

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