Pokorny et al v. Quixtar Inc et al

Filing 258

Order by Hon. Samuel Conti granting 255 Plaintiffs' and Defendant Quixtar's Motion to Modify the Court's December 27, 2012 Order Appointing Special Master (sclc2, COURT STAFF) (Filed on 1/31/2013)

1
2
3
4
5
6
7
8
9
10

STUART H. SINGER (Pro Hac Vice)
CARLOS M. SIRES (Pro Hac Vice)
SIGRID S. MCCAWLEY (Pro Hac Vice)
BOIES, SCHILLER & FLEXNER LLP
401 East Las Olas Boulevard, Suite 1200
Fort Lauderdale, Florida 33301
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
E-mail: [e-mail]
E-mail: [e-mail]

CEDRIC C. CHAO (CA SBN 76045)
WILLIAM L. STERN (CA SBN 96105)
S. RAJ CHATTERJEE (CA SBN 177019)
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: 415.268.7522
E-mail: [e-mail]
E-mail: [e-mail]
E-mail: [e-mail]

WILLIE E. GARY (Pro Hac Vice)
GARY, WILLIAMS, LEWIS, &
WATSON, P.L.
221 East Osceola Street
Stuart, Florida 34994
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

JAMES R. SOBIERAJ (Pro Hac Vice)
BRINKS HOFER GILSON & LIONE
455 N. Cityfront Plaza Drive
Chicago, Illinois 60611
Telephone: [phone]
Facsimile: 312.321.4299
E-mail: [e-mail]

11
12

Attorneys for Plaintiffs
JEFF POKORNY, LARRY BLENN
and KENNETH BUSIERE

Attorneys for Defendant
QUIXTAR INC.

13
UNITED STATES DISTRICT COURT
14
NORTHERN DISTRICT OF CALIFORNIA
15
SAN FRANCISCO DIVISION
16
17
18

JEFF POKORNY, LARRY BLENN
and KENNETH BUSIERE on behalf of
themselves and those similarly situated,

19
Plaintiffs,
20
v.
21
QUIXTAR INC.,

Case No. C 07-00201 SC
[PROPOSED] ORDER
GRANTING PLAINTIFFS’ AND
DEFENDANT QUIXTAR’S JOINT
MOTION TO MODIFY THE
COURT’S DECEMBER 27, 2012
ORDER APPOINTING SPECIAL
MASTER

22
Defendant.
23
24
25
26
27
28
[PROPOSED] ORDER GRANTING JOINT MOTION TO MODIFY DEC. 27, 2012 ORDER
CASE NO. C 07-00201 SC
sf-3237619

1
2

Additional counsel for
Plaintiffs Jeff Pokorny, Larry Blenn and
Kenneth Busiere:

3
4
5
6

DAVID BOIES (Pro Hac Vice)
BOIES, SCHILLER & FLEXNER LLP
333 Main Street
Armonk, NY 10504
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

7
8
9
10

DAVID W. SHAPIRO (CA SBN 219265)
BOIES, SCHILLER & FLEXNER LLP
1999 Harrison Street, Suite 900
Oakland, California 94612
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[PROPOSED] ORDER GRANTING JOINT MOTION TO MODIFY DEC. 27, 2012 ORDER
CASE NO. C 07-00201 SC
sf-3237619

1
2

The Court, having considered Plaintiffs’ and Quixtar’s Joint Motion to Modify the Court’s
December 27, 2012 Order Appointing Special Master (“Joint Motion”), and

3

Good cause appearing therefor;

4

IT IS HEREBY ORDERED that:

5

The Joint Motion is GRANTED.

6

Paragraph 5 of the December 27, 2012 Order shall be and hereby is modified to read as

7

follows:

8

5.
Fairness Considerations. Pursuant to Rule 53(a)(3), the
Court has considered the fairness of paying the likely fees and
expenses of the Special Master from the Cash Fund. The Court
believes that the appointment and use of the Special Master will
materially advance the litigation, thereby achieving considerable
cost-savings to all parties. Moreover, the Court notes that the
parties’ ASA specifically contemplates appointment of a Special
Master, that the parties have consented to the Special Master’s
appointment, and that the ASA provides that the Special Master’s
costs shall be paid from the Cash Fund, as discussed in paragraph
13 herein. The Court will protect against unreasonable fees,
expenses, and delay through review and approval of the Special
Master’s work plan, fee proposal, budget, and invoices, and through
regular communication with the Special Master.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Paragraph 8 of the December 27, 2012 Order shall be and hereby is modified to read as
follows:
8.
Scope of Special Master’s Duties. Pursuant to Rule
53(b)(2)(A), the Special Master shall assist the Court with matters
such as: administering special hardship claims, including assessing
whether supporting documentation is sufficient and adjudicating the
appropriate dollar value of each claim, pursuant to section 6.1.2 of
the ASA; preparing a report with recommendations as to whether
the current limit on individual special hardship awards or the
current limit on aggregate special hardship payments should be
amended and with recommendations on how to effect the final
distribution of cash and products, consistent with the terms of the
ASA and the Court’s own powers; preparing reports with
recommendations on any motions that may later be filed;
determining any issue of law or fact necessary to discharging the
foregoing duties, subject to review as provided in paragraphs 15
through 19; and other matters in which the Court wishes to utilize
his services.
[PROPOSED] ORDER GRANTING JOINT MOTION TO MODIFY DEC. 27, 2012 ORDER
CASE NO. C 07-00201 SC
sf-3237619

1
2
3
4
5
6
7
8
9
10

Paragraph 13 of the December 27, 2012 Order shall be and hereby is modified to read as
follows:
13.
Compensation. Pursuant to Rules 53(b)(2)(E) and 53(g), the
parties shall confer with the Special Master to set his rates. The
Special Master may hire or employ, at a reasonable rate, other
personnel to assist in completion of the duties set forth in this
Order, and the Special Master shall be reimbursed for payments
made to such personnel as part of his expenses. The Special
Master, having initially conferred with the parties on these and
other issues on January 18, 2013, shall prepare a work plan, fee
proposal, and budget for the parties’ review and the Court’s
approval. The Special Master shall prepare a monthly invoice for
his fees and expenses, which shall be paid from the Cash Fund
established pursuant to the ASA. Upon approval by the Court, the
parties shall promptly direct the Escrow Agent to pay such invoices.

11
12
13
14
15

IT IS SO ORDERED.
January 31, 2013
Dated: __________________

_______________________________
HON. SAMUEL CONTI
United States District Court Judge

16
17
18
19
20
21
22
23
24
25
26
27
28
[PROPOSED] ORDER GRANTING JOINT MOTION TO MODIFY DEC. 27, 2012 ORDER
CASE NO. C 07-00201 SC
sf-3237619