(CONSENT) Bykov v. DC Transportation Services, Inc. ( 2020 )

1 ACKERMANN & TILAJEF, P.C. 2 Craig J. Ackermann (SBN 229832) cja@ackermanntilajef.com 3 1180 South Beverly Drive, Suite 610 4 Los Angeles, California 90035 Telephone: (310) 277-0614 5 Facsimile: (310) 277-0635 6 MELMED LAW GROUP P.C. 7 Jonathan Melmed (SBN 290218) 8 jm@melmedlaw.com 1180 South Beverly Drive, Suite 610 9 Los Angeles, California 90035 10 Telephone: (310) 824-3828 Facsimile: (310) 862-6851 11 Attorneys for Plaintiff and the Putative Class 12 13 [Additional Counsel on Next Page] 14 UNITED STATES DISTRICT COURT 15 EASTERN DISTRICT OF CALIFORNIA 16 17 VALERIY BYKOV, individually and on No. 2:18-cv-1691 DB 18 behalf of all others similarly situated, 19 Plaintiff, JOINT STIPULATION AND 20 v. ORDER TO AMEND FINAL 21 APPROVAL ORDER NUNC DC TRANSPORT, INC., a California PRO TUNC TO DIRECT FUNDS 22 Transport Company; DC TRANSPORT, ASSOCIATED WITH 23 INC., a Texas Corporation; DC UNCASHED SETTLEMENT TRANSPORTATION SERVICES, INC. CHECKS TO CY PRES 24 dba DC TRANSPORT state of RECIPIENT 25 corporation unknown; and DOES 1 to 10 inclusive, 26 27 Defendants. 28 1 MEDINA McKELVEY LLP 2 Brandon R. McKelvey (SBN 217002) Brandon@medinamckelvey.com 3 Timothy B. Nelson (SBN 235279) 4 tim@medinamckelvey.com 983 Reserve Drive 5 Roseville, California 95678 6 Telephone: (916) 960-2211 Facsimile: (916) 742-5488 7 Attorneys for Defendant DC TRANSPORTATION SERVICES, INC., dba DC 8 TRANSPORT (also erroneously sued as DC Transport, a California Transport Company and DC Transport, a Texas Corporation) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 JOINT STIPULATION TO AMEND FINAL APPROVAL ORDER 2 NUNC PRO TUNC TO DIRECT FUNDS ASOCIATED 3 WITH UNCASHED SETTLEMENT CHECKS TO CY PRES 4 1. The class action settlement of this matter was finally approved through an 5 order issued on March 3, 2020. Dkt. 29. Final judgment was entered March 3, 2020 6 (Dkt. 30). 7 2. The Settlement Agreement in this case provides, “Class Participants shall 8 have 180 days to cash their checks. Any funds associated with uncashed checks shall 9 be paid in accordance with California Code of Civil Procedure section 384. (See 10 Settlement Agreement, at par. 7 on p. 17, Ex. A to CJA Declaration in support of 11 Plaintiff’s Motion for Preliminary Approval, filed Feb. 11, 2020). 12 3. Section 384 of the California Code of Civil Procedure provides that funds 13 associated with uncashed checks in class actions shall be distributed inter alia to 14 “nonprofit organizations or foundations to support projects that will benefit the class or 15 similarly situated persons…” See C.C.P. Section 384(b). 16 4. The court-appointed Settlement Administrator here, CPT Group, through 17 Tarus Dancy, the case manager for this case, has reported to counsel for the parties that 18 more than 180 days have now elapsed since the class members’ settlement checks were 19 issued, and that approximately $19,577.66 remains in funds associated with uncashed 20 settlement checks. 21 5. The parties have met and conferred over an appropriate cy pres recipient 22 for these remaining funds associated with uncashed checks, pursuant to the settlement 23 agreement, and they have agreed that the Trucker Non-Profit Assistance Fund, which 24 is an IRC section 501(c)(3) nonprofit organization that assists truckers with various 25 financial needs, funeral expenses, and health care needs in emergencies, is an 26 appropriate cy pres recipient for the funds associated with uncashed settlement checks 27 in this case. See www.truckersassistancefund.com. Since the class members here were 28 truck drivers, the parties proposed cy pres recipient meets the requirements of C.C.P. 1 Section 384 and satisfies the Ninth Circuit’s test for an appropriate cy pres as well. See 2 Nachshin v. AOL, LLC, 663 F.3d 1034 (9th Cir. 2011) (cy pres recipient must have some 3 sort of nexus to class members and/or types of individuals or claims of the class 4 members). 5 6. Notably, neither the parties nor any of their counsel have any interest in 6 the Trucker Non-Profit Assistance Fund. 7 7. Significantly, the Trucker Non-Profit Assistance Fund has been approved 8 in other wage and hour class actions on behalf of truckers in California as an appropriate 9 cy pres recipient for funds associated with uncashed settlement checks. See, e.g., 10 Maldonado v. Heavy Weight Transport, Inc., Case No. 2:16-cv-08838-CVAS-RAOx 11 (Hon. Judge Cristina Snyder Order Directing Uncashed Checks to Cy Pres Recipient, 12 the Trucker Non-Profit Assistance Fund), Docket No. 44, entered April 30, 2020. 13 THEREFORE, IT IS HEREBY STIPULATED by and between the parties, 14 through their respective undersigned counsel, that all unclaimed funds associated with 15 uncashed settlement checks from the Settlement be directed by the court-appointed 16 settlement administrator to the Trucker Non-Profit Assistance Fund. 17 Respectfully submitted, 18 /s/ Timothy B. Nelson 19 Dated: Sept. 29, 2020 Brandon R. McKelvey, Esq. Timothy B. Nelson, Esq. 20 MEDINA MCKELVEY LLP Attorneys for Defendants 21 22 Dated: Sept. 29, 2020 /s/ Craig Ackermann 23 Craig J. Ackermann, Esq. ACKERMAN & TILAJEF, P.C. 24 Jonathan Melmed, Esq. MELMED LAW GROUP P.C. 25 Attorneys for Plaintiff 26 27 28 42.140 UV VILVYL Lb bMVVULLICIIt Vo PHM 2Vivercy Payee vvuliv 1 ORDER AMENDING FINAL APPROVAL ORDER NUNC PRO TUNC 2 3 Good cause appearing, and based on the parties’ Stipulation, the Court hereby 4 || amends its order granting final approval, dated March 3, 2020, nunc pro tunc, as 5 | follows: 6 . Paragraph 3 on page 17 of the Court’s Order is amended to state as follows: g “3. The parties are ordered to act in accordance with the settlement agreement, 9 | and the court further orders any funds associated with any uncashed settlement checks 10 after 180 days following their issuance to be distributed by the Settlement 12 | Administrator to the Trucker Non-Profit Assistance Fund as the non-profit cy pres 13 recipient.” 14 15 All other terms of the Final Approval Order and Final Judgment remain 16 || unchanged and in full force and effect. 17 | Dated: October 1, 2020 18 19 20 ORAH BARNES 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 || DLB:6 DB/orders/orders.consent/bykov 1691 .stip.am.judg.ord 26 27 28