Melgar v. Zicam LLC, et al

Filing 139

STIPULATION AND ORDER REGARDING CLASS ACTION NOTICE PLAN signed by District Judge Morrison C. England, Jr. on 2/16/2017. (Michel, G.)

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ALAN J. LAZARUS (SBN 129767)
[e-mail]
WILLIAM A. HANSSEN (SBN 110613)
[e-mail]
ASHLEY K. CORKERY (SBN 301380)
[e-mail]
DRINKER BIDDLE & REATH LLP
50 Fremont Street, 20th Floor
San Francisco, CA 94105-2235
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendants
ZICAM LLC and MATRIXX
INITIATIVES, INC.
SCOTT A. BURSOR (SBN 276006)
[e-mail]
L. TIMOTHY FISHER (SBN 191626)
[e-mail]
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
YESENIA MELGAR

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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YESENIA MELGAR, on Behalf of Herself
and all Others Similarly Situated,

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Plaintiffs,

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v.

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ZICAM LLC and MATRIXX
INITIATIVES, INC.,

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Case No. 2:14-cv-00160-MCE-AC
JOINT STIPULATION REGARDING
CLASS ACTION NOTICE PLAN AND
ORDER
Hon. Morrison C. England, Jr.

Defendants.

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D R I N K E R B I D DL E &
R E A T H LLP
A TT ORNEYS AT LAW
SAN FRANCISCO

JOINT STIPULATION AND [PROPOSED] FOR
CONTINUANCE OF CASE MANAGEMENT
CONFERENCE
87634149.2

CASE NO. 5:11-CV-06584-LHK

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Plaintiff Yesenia Melgar, on behalf of herself and the certified class (“Plaintiff”), and

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Defendants Zicam LLC and Matrixx Initiatives, Inc. (collectively “Defendants”), by and through

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their respective attorneys, hereby submit an agreed plan to notify class members of the pendency of

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this action. The procedures described below include individual notice, publication notice, and the

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establishment of a class action website.

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A.

Direct Notice

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Plaintiff shall cause a notice of the pendency of this class action to be sent directly via

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electronic mail (“e-mail”) or U.S. mail to all persons reasonably believed to be part of the class

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and for whom Defendants already have contact information in their possession; i.e., persons who

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have voluntarily provided e-mail addresses to Defendants (either via call center and/or subscriber

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lists) and who are believed to reside in one of the ten jurisdictions at issue. Defendants have

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identified approximately 3,330 individuals to date who will be covered by this method of notice.

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A copy of the Notice is attached as Exhibit A. Plaintiff shall use best efforts to

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commence with dissemination of the Notice via electronic communication within twenty-one (21)

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days after approval of this Agreed Plan by the Court. Class members will have six weeks from

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the date the e-mail notice is sent to request exclusion from the class.

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B.

Publication Notice

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Plaintiff will supplement the direct notice by providing a published summary notice of the

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pendency of this class action in newspapers of general circulation throughout the ten jurisdictions

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at issue. Based on a review of print circulation figures, the Parties have preliminarily identified

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newspapers that are reasonably calculated to apprise interested persons of the pendency of the

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action and afford them an opportunity to opt-out. The following newspapers have wide

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circulation in the most populated counties in each state:

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California: Los Angeles Times; San Francisco Chronicle.

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Delaware: Wilmington News Journal.

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D.C.: The Washington Post.

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Kansas: The Wichita Eagle.

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Missouri: St. Louis Post-Dispatch; The Kansas City Star.

D R I N K E R B I D DL E &
R E A T H LLP
A TT ORNEYS AT LAW
SAN FRANCISCO

JOINT STIPULATION AND ORDER FOR
CONTINUANCE OF CASE MANAGEMENT
CONFERENCE
87634149.2

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New Jersey: Newark Star-Ledger.

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Ohio: The Plain Dealer.

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Utah: The Salt Lake Tribune.

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Virginia: The Virginian-Pilot.

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West Virginia: The Charleston Gazette-Mail.

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A copy of the Summary Notice is attached as Exhibit B. Plaintiff shall use best efforts to

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distribute the Summary Notice within thirty (30) days after approval of this Agreed Plan by the

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Court. Class members will have six weeks from the last date of publication to request exclusion

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from the class.

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C.

Class Action Website

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Plaintiff will also set up a class action website so that members who receive a summary

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notice can be directed to the website to read more information. This class action website will

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include the information circulated via direct notice.

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A copy of the Notice is attached as Exhibit A. Plaintiff shall use best efforts to set up this

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class website with the posted Notice within fourteen (14) days after approval of this Agreed Plan

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by the Court.

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D R I N K E R B I D DL E &
R E A T H LLP
A TT ORNEYS AT LAW
SAN FRANCISCO

JOINT STIPULATION AND ORDER FOR
CONTINUANCE OF CASE MANAGEMENT
CONFERENCE
87634149.2

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The Parties respectfully submit that this proposal for dissemination of notice is the best

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notice practicable under the circumstances and that it meets the requirements of due process and the

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Federal Rules of Civil Procedure.

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Respectfully submitted,

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Dated: February 10, 2017

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DRINKER BIDDLE & REATH LLP
By: /s/ Alan J. Lazarus
Alan J. Lazarus
William A. Hanssen
Ashley K. Corkery

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Attorneys for Defendants
ZICAM LLC and MATRIXX INITIATIVES, INC.

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BURSOR & FISHER, P.A.

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By: /s/ Scott A. Bursor
Scott A. Bursor
L. Timothy Fisher

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Attorneys for Plaintiffs
YESENIA MELGAR, and all Others Similarly
Situated

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ORDER

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IT IS SO ORDERED.
Dated: February 16, 2017

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D R I N K E R B I D DL E &
R E A T H LLP
A TT ORNEYS AT LAW
SAN FRANCISCO

JOINT STIPULATION AND ORDER FOR
CONTINUANCE OF CASE MANAGEMENT
CONFERENCE
87634149.2

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