United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

BONNIE SCOTT, an individual, on behalf

of herself and all others similarly situated,

Plaintiffs,

 v.

PRO’S CHOICE BEAUTY CARE, INC., a

Delaware corporation,

Defendant. /

No. C 08-04697 WHA

CLASS ACTION SETTLEMENT

ORDER REGARDING THE

RELEASE OF CLASS MEMBER

RIGHTS

At this morning’s oral argument for final approval of the settlement agreement, counsel

represented to the undersigned that the release language of the settlement agreement had been

properly revised and narrowed as ordered by the Court during the preliminary settlement approval

process. Having reviewed the revised language in both the settlement agreement and class notice

for the purposes of final approval, the undersigned has the following lingering concerns. 

First, the release language in the settlement agreement is inconsistent with the release

language in the class notice. The release language in the notice sent to class members specifically

limited the release to the time period of October 10, 2004, to September 17, 2009. However, the

revised settlement agreement extended the temporal scope of the release to the “date of final

settlement approval.” This amounts to over four months worth of potential damages. Counsel

must revise the release language in the settlement agreement to conform to the date range set forth

in the class notice.

Case 3:08-cv-04697-WHA Document 53 Filed 01/21/10 Page 1 of 2
United States District Court

For the Northern District of California

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Second, while the undersigned agreed with counsel during the preliminary approval

process that federal claims under the Fair Labor Standards Act — which were not asserted by

class representative Scott — could be waived by absent class members if they signed a release

and “opted-in” (in this case, by endorsing and cashing their settlement checks), the scope of

release for these federal claims is far too broad. Indeed, when the undersigned agreed at the

preliminary approval hearing that there could be two classes of releases — a “narrow” release for

class members who chose not to opt-out of the settlement, and a “broader” release for class

members who negotiated their settlement checks — this did not give counsel carte blanche to

immunize defendants from “all claims, rights, and liabilities under the FLSA” with no reference

to either the facts alleged in this action or the date range applicable to the settlement payout. The

language of the federal release must include the same types of reasonable limitations set forth in

the state-law release. In other words, the federal release should be tethered to the facts and claims

alleged in this action, and be limited to the same range of dates as the state-law release.

Third, the waiver of California Civil Code Section 1542 should not be included in the

settlement agreement for the simple reason that it is unnecessary. The undersigned has not

authorized a general release. By contrast, the Court’s primary concern is to ensure that the rights

of absent class members released by the settlement are fairly limited to those arising out of the

facts and claims asserted in this action. As such, since no general release has been approved by

the undersigned, it is unnecessary for class members to waive the protections of Section 1542.

Counsel are asked revise the release language in the settlement agreement to address the

above concerns, and file a response to this order — including a copy of the revised settlement

agreement — by NOON ON MONDAY, JANUARY 25, 2010. Final approval of the settlement

agreement will not be granted until and unless the undersigned determines that the scope of both

the state and federal releases is fair to absent class members.

IT IS SO ORDERED.

Dated: January 21, 2010. WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

Case 3:08-cv-04697-WHA Document 53 Filed 01/21/10 Page 2 of 2