Lindell et al v. Synthes USA et al

Filing 261

STIPULATION and ORDER to Send Letter in Lieu of Class Notice for Non-Class Members: The Court has reviewed the parties stipulation outlined above and adopts the stipulation except that the 39 individuals identified as not part of the classes who were previously included on the class list shall have thirty (30) days to postmark a written challenge to the determination that they are not a class member. The attached Exhibit A shall be modified accordingly. The class notice approved on September 13, 2016, need not be sent to these individuals. signed by Magistrate Judge Barbara A. McAuliffe on 10/13/2016. (Herman, H)

1
2
3
4
5
6
7
8
9
10
11
12

Todd F. Jackson (SBN 202598)
Catha Worthman (SBN 230399)
Darin Ranahan (SBN 273532)
FEINBERG, JACKSON,
WORTHMAN & WASOW LLP
383 4th Street, Suite 201
Oakland, CA 94607
Telephone: [phone]
[e-mail]
[e-mail]
[e-mail]

Blank Rome LLP
Howard M. Knee (SBN 55048)
[e-mail]
2029 Century Park East, 6th Floor
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 424.239.3434
Blank Rome LLP
Anthony B. Haller (Pro Hac Vice)
[e-mail]
Larry R. Wood, Jr. (Pro Hac Vice)
[e-mail]
One Logan Square
130 North 18th Street
Philadelphia, PA 19103
Telephone: [phone]
Facsimile: 215.832.5690/5659

Charles Trudrung Taylor (SBN 127105)
Ana de Alba (SBN 253917)
LANG, RICHERT & PATCH
Fig Garden Financial Center
5200 North Palm Avenue, Fourth Floor
Fresno, CA 93704
Telephone: [phone]
[e-mail]
[e-mail]
Counsel for Plaintiff and the Certified
Classes

Wanger Jones Helsley PC
Oliver W. Wanger (SBN 40331)
265 E. River Park Circle, Ste 310
Fresno, CA 93720
Telephone: [phone]
Facsimile: 559.233.9330

13
14

Counsel for Defendants
Synthes USA, Synthes USA Sales LLC, and
Synthes Spine Company, LP

15
16
17

UNITED STATES DISTRICT COURT

18

FOR THE EASTERN DISTRICT OF CALIFORNIA

19
20

TROY M. LINDELL, ON BEHALF OF
HIMSELF AND ALL OTHERS
SIMILARLY SITUATED,
Plaintiff,

21
22
23
24

Case No. 1:11-CV-02053-LJO-BAM
STIPULATION AND ORDER TO SEND
LETTER IN LIEU OF CLASS NOTICE FOR
NON-CLASS MEMBERS

v.
SYNTHES USA, SYNTHES USA SALES
LLC, SYNTHES SPINE COMPANY LP,
Defendants.

25
26

WHEREAS, on September 13, 2016, the Court issued Findings and Recommendations

27

Granting Plaintiff’s Motion for Preliminary Approval of Class Action Settlement (ECF No. 257),

28

with an attached Class Notice (ECF No. 257-1);

1

WHEREAS, the Findings and Recommendations provided for Class Notice to include the

2

final data from which each member of the classes’ distribution would be calculated (ECF No. 257

3

¶ 8);

4
5
6

WHEREAS, the Findings and Recommendations provide a method for each member of
the classes to challenge this final data (ECF No. 257 ¶ 10);
WHEREAS, following the Court’s order, Defendants Synthes USA, Synthes USA Sales

7

LLC, and Synthes Spine Company LP (“Synthes”) collected the final data from which

8

distribution will be calculated;

9

WHEREAS, this final data indicates that 39 individuals previously identified on the class

10

list neither worked under the expense policies at issue during the class period (see ECF No. 257 ¶

11

3.a) nor had any deductions assessed against them during the class period (see id. ¶ 3.b), and thus

12

are not properly members of the classes;

13
14
15

WHEREAS, Defendants represent that they erred on the side of overinclusivity with the
class list in order to avoid potential class members slipping through the cracks;
WHEREAS, these 39 individuals were mailed class notice following class certification

16

indicating that they were members of one or both classes (see ECF No. 165-1) and thus may

17

believe themselves to be members of one or both classes;

18

WHEREAS, the Parties wish to avoid confusion on the part of these individuals and allow

19

them the opportunity to challenge the determination that they are not a class member in the event

20

that they believe they should properly be considered members of one or both classes, in a manner

21

substantially similar to the data challenge set forth supra and in the Findings and

22

Recommendations (ECF No. 257 ¶ 10);

23
24
25

WHEREAS, the Parties wish to clarify to these individuals that, as they are not members
of the classes, they are not releasing any claims as a result of this settlement;
IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned counsel

26

on behalf of the respective Parties, that the 39 individuals identified as not being a part of either

27

of the classes be sent a letter drawing attention to the fact that they are not a member of either

28

class and providing a method for them to challenge this determination if they believe it to be

1

incorrect. A proposed letter is attached hereto as Exhibit A. The Parties note that this change

2

reduces the total number of class members to 187 from 226, and therefore raises the anticipated

3

average distribution per class member from over $14,000 to over $17,000.1

4
5

Respectfully Submitted,
DATED:

October 11, 2016

6

By:

/s/ Darin Ranahan
Darin Ranahan
Attorneys for Plaintiff and the Certified
Classes

7
8
9

FEINBERG, JACKSON, WORTHMAN &
WASOW LLP

DATED:

October 11, 2016

10

BLANK ROME LLP
By:

/s/ Anthony B. Haller
Anthony B. Haller
Attorney for Defendants
SYNTHES USA, SYNTHES USA SALES
LLC, SYNTHES SPINE COMPANY, LP

11
12
13
14

ORDER

15

The Court has reviewed the parties’ stipulation outlined above and adopts the stipulation

16

except that the 39 individuals identified as not part of the classes who were previously included

17

on the class list shall have thirty (30) days to postmark a written challenge to the determination

18

that they are not a class member. The attached Exhibit A shall be modified accordingly. The

19

class notice approved on September 13, 2016, need not be sent to these individuals.

20

IT IS SO ORDERED.

21

Dated: October 13, 2016

22
23
24
25
26
27
28

/s/ Barbara

A. McAuliffe

UNITED STATES MAGISTRATE JUDGE