Rebecca Swift v. Adknowledge, Inc., et al

Filing 5

Filed order MEDIATION (BS): The Mediation Program of the Ninth Circuit Court of Appeals facilitates settlement while appeals are pending. See Fed. R. App. P. 33 and Ninth Cir. R. 33-1. The court has scheduled a telephone settlement assessment conference, with counsel only, on October 11, 2011, at 10:30 a.m. Pacific Time (1:30 p.m. Eastern Time) to discuss whether this case is appropriate for participation in the Mediation Program. The Circuit Mediator will initiate the conference call by contacting each person on the attached list of participants at the telephone number listed. Please be available for the call at least five minutes before the scheduled time. Counsel should review the attached list and inform Mediation Assistant Beatriz Smith by email ([e-mail]) at least 72 hours in advance of the scheduled call of any of the following: (1) any attorneys on the list of counsel who will not be participating in the conference; (2) the direct dial phone number of any participant if it is not listed; and (3) any other corrections to the list. Please notify Circuit Mediator Margaret Corrigan immediately by email ([e-mail]) if the dispute is settled, the appeal is dismissed or if counsel has an unavoidable scheduling conflict. Please copy all counsel on any such communications. All discussions that take place in the context of the assessment conference are strictly confidential. For more detailed information about the assessment conference, confidentiality, the Mediation Program and its procedures generally, please see the attachment to this order and the Mediation Program web site: www.ca9.uscourts.gov/mediation. [7904178] (BJB)

FILED
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

REBECCA SWIFT, on behalf of herself &
all others similarly situated,
Plaintiff - Appellee,
v.
ZYNGA GAME NETWORK, INC.,

SEP 23 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

No. 11-16933
ORDER SETTING
ASSESSMENT CONFERENCE
Date: October 11, 2011
Time: 10:30 a.m. Pacific Time
1:30 p.m. Eastern Time

Defendant,
and
ADKNOWLEDGE, INC., DBA Super
Rewards and KITN MEDIA USA, INC.,
DBA Super Rewards,
Defendants - Appellants.

The Mediation Program of the Ninth Circuit Court of Appeals facilitates
settlement while appeals are pending. See Fed. R. App. P. 33 and Ninth Cir. R.
33-1.
The court has scheduled a telephone settlement assessment conference, with
counsel only, on October 11, 2011, at 10:30 a.m. Pacific Time (1:30 p.m. Eastern
Time) to discuss whether this case is appropriate for participation in the Mediation
Program. The Circuit Mediator will initiate the conference call by contacting each
person on the attached list of participants at the telephone number listed. Please be
available for the call at least five minutes before the scheduled time.

BS/Mediation_9/21/11

Counsel should review the attached list and inform Mediation Assistant
Beatriz Smith by email ([e-mail]) at least 72 hours in
advance of the scheduled call of any of the following: (1) any attorneys on the list
of counsel who will not be participating in the conference; (2) the direct dial phone
number of any participant if it is not listed; and (3) any other corrections to the list.
Please notify Circuit Mediator Margaret Corrigan immediately by email
([e-mail]) if the dispute is settled, the appeal is
dismissed or if counsel has an unavoidable scheduling conflict. Please copy all
counsel on any such communications.
All discussions that take place in the context of the assessment conference
are strictly confidential.
For more detailed information about the assessment conference,
confidentiality, the Mediation Program and its procedures generally, please see the
attachment to this order and the Mediation Program web site:
www.ca9.uscourts.gov/mediation.
FOR THE COURT:

By: Beatriz Smith
Deputy Clerk

BS/Mediation_9/21/11

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LIST OF CONFERENCE PARTICIPANTS

Rebecca Swift
Plaintiff - Appellee

Ian James Barlow, Esq.
Mark J. Tamblyn, Esq.
TEL: [phone]
FAX: [phone]
EMAIL: [e-mail]
EMAIL: [e-mail]
WEXLER WALLACE LLP
455 Capitol Mall, Suite 231
Sacramento, CA 95814
Curtis Brooks Cutter, Esq.
William A. Kershaw, Esq.
Stuart Talley
John R. Parker, Esq.
TEL: [phone]
FAX: [phone]
EMAIL: [e-mail]
EMAIL: [e-mail]
EMAIL: [e-mail]
KERSHAW, CUTTER &
RATINOFF, LLP
401 Watt Avenue
Sacramento, CA 95864
Benjamin Gordon Edelman, Esq.
TEL: [phone]
EMAIL: [e-mail]
ATTORNEY AT LAW
27A Linnaean St.
Cambridge, MA 02138

BS/Mediation_9/21/11

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Richard L. Seabolt, Esq.
TEL: [phone]
FAX: [phone]
EMAIL: [e-mail]
DUANE MORRIS, LLP
One Market Plaza, 20th Floor
San Francisco, CA 94105-1104
v.
Adknowledge, Inc.
Defendant - Appellant

Derek Alan Newman, Esq.
Derek Linke, Esq.
TEL: [phone]
FAX: [phone]
EMAIL: [e-mail]
EMAIL: [e-mail]
NEWMAN DU WORS LLP
1201 Third Avenue, Ste. 1600
Seattle, WA 98101

KITN Media USA, Inc.
Defendant - Appellant

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
CIRCUIT MEDIATION OFFICE
Email: [e-mail]
Phone: [phone]
Fax: [phone]
INFORMATION ABOUT ASSESSMENT CONFERENCES
Overview of Purpose and Participants
•
The purpose of the assessment conference is to provide an opportunity for
counsel and the Circuit Mediator to have a frank discussion about
settlement. The mediator will explore the parties’ interests in settlement
and, if appropriate, work with counsel to design a process to pursue
resolution of the dispute.
•

The conference will be conducted by one of the nine Circuit Mediators, all
of whom are court employees with extensive mediation and litigation
experience. Appeals are randomly assigned to the Circuit Mediators
irrespective of the subject matter or issues on appeal. The Circuit Mediators
are authorized to file orders on most procedural matters, including vacating
or moving the briefing schedule.

•

Counsel for all parties who intend to file briefs in the case should participate
in the assessment conference. The lawyer with the closest relationship to the
client should be on the call. Clients are neither expected nor required to
participate in the assessment conference.

•

In advance of the conference, counsel should have a discussion with their
clients about their goals in the litigation, its possible costs and outcomes
(good and bad), the potential for further legal proceedings, and what issues
beyond the litigation might be explored in mediation. (See the court’s
website for a list of questions for exploring the suitability of the dispute for
settlement.)

•

During the conference, counsel and the Circuit Mediator will discuss the
factual and legal background of the dispute, the legal issues involved in the
litigation and on appeal, any related legal proceedings, and any other
considerations that may affect the parties' willingness to engage in
settlement discussions. The scope of discussions is not limited to the issues
on appeal and can include related legal proceedings or any other issues
between the parties.

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Confidentiality
•
Settlement-related information disclosed to a Circuit Mediator will be kept
confidential and will not be disclosed to the judges deciding the appeal or to
any other person outside the Mediation Program participants. Ninth Cir. R.
33-1.
•

All participants in the assessment conference are required to abide by the
Mediation Program’s confidentiality rules. With limited exceptions, any
communication made by the Circuit Mediator or any participant during the
conference may not be used in any pending or future proceeding in this court
or any other forum and may not be disclosed to anyone who is not a
participant. Gen. Or. 7.4.

Likely Outcomes of Assessment Conference
•
At the conclusion of the assessment conference, the Circuit Mediator may
confirm in an order the agreements of the parties regarding the scope, process
and timing of any further settlement efforts. Typical settlement processes
include in-person mediation sessions, telephone settlement dialogues
facilitated by the Circuit Mediator, or direct discussions between counsel.
•

The parties may agree to defer briefing in order to focus on settlement efforts
or to provide an opportunity for circumstances to develop that might make
settlement more likely. In most cases, the deferral of briefing will not delay
disposition of the appeal, since the date of the filing of the notice of appeal
controls when an appeal is assigned to a three-judge panel for decision.

•

At any point that the parties choose not to pursue settlement efforts, the
Circuit Mediator will work with the parties to resolve any outstanding
procedural issues and will enter orders effectuating any procedural
agreements.

More information is available on the Mediation Circuit link on the Ninth
Circuit website www.ca9.uscourts.gov/mediation.

BS/Mediation_9/21/11

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