Pokorny et al v. Quixtar Inc et al

Filing 288

ORDER DENYING 277 MOTION for Retraction of Exclusion and Reinstatement of Class Action Participant Status. Signed by Judge Samuel Conti on 7/2/2013. (sclc2, COURT STAFF) (Filed on 7/3/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court

For the Northern District of California

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

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Plaintiffs,

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v.

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QUIXTAR, INC., et al.,

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Defendants.

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Case No. 07-0201 SC
ORDER DENYING MOTION TO REQUEST
RETRACTION OF CLASS ACTION
EXCLUSION AND REINSTATEMENT OF
CLASS ACTION PARTICIPANT STATUS

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I.

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INTRODUCTION
On May 15, 2013, Mr. Dennis Obado (formerly a class plaintiff

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in the above-captioned case) filed a motion to be reinstated as a

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class action settlement objector.

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is fully briefed, ECF Nos. 280 ("Opp'n"), 282 ("Reply"), and

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appropriate for decision without oral argument, Civ. L.R. 7-1(b).

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For the reasons explained below, Mr. Obado's motion is DENIED.

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ECF No. 277 ("Mot.")

The motion

1 II.

BACKGROUND

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The Court draws facts from Mr. Obado's motion and from class

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counsel's clarifications.
Mr. Obado says that he is a former Quixtar independent

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business owner ("IBO") who submitted a claim to be included in this

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class action suit prior to the deadline date of August 12, 2012.

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Mot. at 2.

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claims: an online claim for products and cash benefits, and a later

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duplicate, paper claim.

Class counsel confirms that Mr. Obado filed two such

Opp'n at 1.

Mr. Obado later filed an

United States District Court

For the Northern District of California

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objection to the settlement on August 11, 2012, on the grounds that

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the settlement did not provide for treble damages under the New

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Jersey Consumer Fraud Act.

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filed an opt-out notice, stating that he had decided to pursue his

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own private civil action against Quixtar, based on the New Jersey

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Consumer Fraud Act.

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states that Mr. Obado reiterated his decision to opt out in two

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later emails, Opp'n at 1, and Mr. Obado does not appear to deny

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this, see generally Reply.

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Id.

On August 17, 2012, Mr. Obado

Id. Ex. A ("Obado Ltr.").

Class counsel

Later, in November 2012, the Court approved a second-round

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settlement notice concerning the distribution of excess cash and

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products from the class fund.

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Specifically, the November Order approved a plan to allow

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additional claims to be filed in this case and to make available

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increased payments of cash and product benefits, depending on the

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number and sufficiency of new claims.

See ECF No. 246 ("Nov. Order").

Id. at 7-9.

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The claims administrator for this case mailed the approved

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notice to Mr. Obado on January 11, 2013, using his correct address,

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and according to class counsel and the claims administrator, the

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Obado says that he does not recall receiving notice of the November

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2012 change in settlement terms.

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claims that he sent his opt-out letter in error, since he only

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meant to object to the settlement amount and would not have opted

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out of the class had he known (after November 2012) that the

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settlement benefits had been altered to make increased benefits

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available to some claimants.

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argument is essentially that he objected to and opted out of the

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United States District Court

mail was not returned as undeliverable.

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For the Northern District of California

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settlement because he thought its benefits were too low, and that

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after he learned of the settlement's alteration to account for

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excess cash and products, his concerns were alleviated and he

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wished to become part of the settlement class again.

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Opp'n at 1.

See Mot. at 2, 8.

Id. at 2-3, 8-9.

Even so, Mr.

Mr. Obado now

Mr. Obado's

On these grounds, Mr. Obado asks the Court to reinstate him as

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an objector to the settlement.

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this motion, arguing that no authority supports reinstating an

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opted-out class member on motion, absent settlement language

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permitting reinstatement by certain deadlines.

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class counsel rightly notes, neither any order nor the settlement

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agreement provides for the retraction of opt-outs, and the deadline

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for opting out of the class passed nearly a year ago.

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Id. at 9.

Class counsel opposes

Opp'n at 3.

As

Id.

Mr. Obado adds an array of new arguments to his reply brief.

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Normally the Court would not consider new arguments raised on

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reply, but since Mr. Obado is proceeding pro se, and since he loses

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this motion, the Court summarizes his reply brief's arguments here

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and addresses them below.

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did not provide him with adequate legal advice or effective

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assistance regarding opt-outs, retractions, or deadlines; (2) class

Mr. Obado claims that: (1) Class counsel

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counsel did not advise him on statutes of limitations concerning

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the New Jersey Consumer Fraud Act; (3) class counsel's objection to

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his motion for reinstatement and refusal to assist him in his

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motion were both actionable breaches of various duties; and (4)

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absence of legal support for the reinstatement requests suggests

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that the Court use its equitable powers to reinstate him as an

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objector.

Reply at 4-12.

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DISCUSSION

United States District Court

For the Northern District of California

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Class counsel is correct that no case law supports Mr. Obado's

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request to be reinstated as an objector long after he has opted out

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of the class and all relevant deadlines have passed.

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class action settlement agreements include clauses discussing how

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opt-out requests can be withdrawn -- normally by filing notice with

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class counsel and defendants' counsel within a time set by the

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agreement.

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2012 WL 3037275, at *3 (N.D. Cal. July 30, 201) (settlement

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approval order that includes a reinstatement clause).

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settlement agreement in this case includes no such clause.

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No. 162 Ex. 2 ("Am. Settlement Agreement").

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the settlement agreement includes no right to retract an opt-out

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notice, and that had he been notified of a retraction policy, he

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would have retracted his opt-out.

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apparently assumes that all class action settlements must include a

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right of retraction.

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Sometimes,

See, e.g., Turner v. Storm8, LLC, No. 09-cv-05234-CW,

The
See ECF

Mr. Obado states that

See Mot. at 9.

Mr. Obado

As noted above, this is not so.

Mr. Obado argues, apparently in the alternative, that he sent

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his opt-out letter in error, that he never received notice of the

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November Order's allowance of additional claims and benefits, and

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that class counsel was remiss in not informing him of either his

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opt-out retraction rights (which never existed) or various other

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legal issues.

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reinstated as an objector.

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For all these reasons, Mr. Obado claims he should be

First, no evidence on this Motion suggests that Mr. Obado sent

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his opt-out letter in error.

It was apparently a well considered

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response to a settlement that Mr. Obado found insufficient, as a

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result of which he decided to pursue his own suit.

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Letter at 2 ("After careful consideration, I have decided to opt

See Obado

United States District Court

For the Northern District of California

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out of the class action settlement, in order to pursue my own

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private civil action against Quixtar, based on [the] New Jersey

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Consumer Fraud Act.").

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that he never received notice under the November Order, class

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counsel notes that the claims administrator mailed the requisite

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notice to Mr. Obado in January 2013 and received no notice that it

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was undeliverable.

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Obado apparently uses the same address now as he did then.

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at 1-2.

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members have a heightened need to receive notices relevant to the

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class settlement is not based on law: class counsel and the claims

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administrator did everything that was required of them.

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at 5-6.

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Moreover, despite Mr. Obado's insistence

Compare Reply at 5 with Opp'n at 1-2.

Mr.
Opp'n

Further, Mr. Obado's insistence that opted-out class

See Reply

Second, the Court finds that class counsel breached no duties

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of any kind in not informing Mr. Obado of a retraction right,

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rejecting Mr. Obado's requests for legal advice pertaining to his

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separate civil suit, or doing anything else Mr. Obado claims to

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have been a derogation of class counsel's duties.

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acted appropriately in all instances.

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Class counsel

This leaves the Court to consider whether it should exercise

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if there were such a power, the Court declines to exercise it.

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This case and this settlement agreement have involved years of

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complex litigation, detailed fact-finding, and protracted

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negotiations.

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Court's orders and the parties' settlement agreement were similarly

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well considered, negotiated, and reviewed.

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deadlines -- even those for filing claims -- have passed, and to

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United States District Court

its equitable powers to reinstate Mr. Obado as an objector.

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For the Northern District of California

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Even

open the door again would risk a flood of late-coming claimants,

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delaying the claims administrator, the Special Master, class

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counsel, and the Court.

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action litigation process at this point.

The requirements and deadlines set forth in the

Moreover, all relevant

The Court will not upend the entire class

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CONCLUSION
As explained above, Mr. Obado's motion is DENIED.

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IT IS SO ORDERED.

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Dated: July 2, 2013

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UNITED STATES DISTRICT JUDGE

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