Wixon et al v. Wyndham Resort Development Corp., et al

Filing 1335

ORDER DENYING #1152 Request for Reconsideration. Signed by Judge Jeffrey S. White on August 3, 2011. (jswlc3, COURT STAFF) (Filed on 8/3/2011)

Case3:07-cv-02361-JSW Document1152

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LAW OFFICE OF STEPHAN WILLETT
Stephan Willett, Esq.
4503 Gilbertson Road
Fairfax, VA 22032
703-855-3724
703-323-5658 (fax)
[e-mail]
Attorneys for Objectors

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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Zoe Smith-Fallgren, Gregory Miller, Case No. C 07 2361 JSW
Honorable Jeffrey S. White
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Class Action
Objectors,
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and
Wixon, et al.

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Plaintiffs,
v.

RECONSIDERATION
REQUESTED OF ORDER
REGARDING ECF/CM
POSTING OF CLASS MEMBER
OPT-OUT LETTERS MAILED TO T
COURT AS MODIFIED
AND ORDER DENYING SAME

Wyndham Resort Development
Corp.,
Defendant.

Return Date: July 8, 2011
Hearing Date: August 5, 2011
Hearing Time: 9:00AM

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To each party and their attorney of record, Stephan Willett affirms:

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Case3:07-cv-02361-JSW Document1152

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1.

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Joint Counsel made an exparte request to change the rules that

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were requested in their motion, Doc. 661 after the fact as this court

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required in its order, Doc. 683. Specifically, Joint Counsel has now

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requested that filings NOT be scanned in the above captioned case in

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abrogation of this court’s order, Doc. 683, thus excluding attorneys of

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record from receiving timely relevant filings. No consultation was

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attempted with the attorneys of record in this case that have an obvious

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interest in your order, Doc. 1086 and rights secured thereby. The court has

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obliged Joint Counsel’s requested stipulation by its order, Doc. 683.

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2.

Joint Counsel has disregarded the interests of the parties

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represented herein and did not consult with the relevant parties of record

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before filing their request in Doc. 1085.

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3.

No motion was filed to change the rules established by your

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order, Doc. 1086 in an area with well established in pro forma class action

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procedure. Thus, interested parties have not had an opportunity to respond

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to Joint Counsel’s request and protect their interests.

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4.

Joint Counsel produced no facts to substantiate why their

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request to not scan relevant filings in this case was necessary. In

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contradiction, their request states that “a small group of Class members

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advised other Class members to mail copies of their opt-out letters to the
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Court in addition to Class Counsel”, Doc. 1085. However, that group of

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owners should hardly be characterized as a “small group”. WMOwners, Inc.

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has a registered membership of over 11,000 members that has been

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experiencing increasing numbers of guests (numbering in the thousands

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(1,000s)) visiting their site each day in the last month. WMOwners, Inc.

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posted opinions in support of opting out and provided means to facilitate

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opting out, but they should not be considered “a small group” or

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insignificant. For example, courts have observed “these associations

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represent the interests of thousands of retail pharmacists and class

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members”, In re Brand Name Prescription Drugs Antitrust Litig., 1996

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U.S. Dist. LEXIS 8817 (N.D. IL 1996). Similarly, “the Court allowed

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additional time for potential class members to respond or object.

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Thereafter, several more articles appeared in the Courier Journal,

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describing the proceedings and publishing the information telephone

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number in bold type. Counsel for the objectors held several informational

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meetings as well”, Bell v. Dupont Dow Elastomers, LLC, 2009 U.S. Dist.

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LEXIS 56636 (W.D. KY 2009). Actually, there were not many copies of opt-

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out letters filed. The vast majority of opt-out letters have been personally

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addressed to the court with individual reasons for opting out, yes many are

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copied reasons but there are many reasons that have not been copied. The
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letters filed go far beyond the standard required opt-out letter which need

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not provide any reasoning.

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5.

Joint Counsel provided no reason for their request to not scan

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relevant filings in this case. The above objecting parties have made specific

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and relevant reference to class members opting out in their objection, Doc.

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683, pg. 19, thus Joint Counsel’s reasons for requesting opt-out letters not

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be scanned should be questioned and scrutinized. Yet there is no justifiable

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reason for Joint Counsel to desire opt-out letters not be scanned. The

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apparent reason Joint Counsel desires opt-out letters not be scanned is self

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serving, similar to their desire for a short objection period and quick

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Fairness Hearing, and which serves only to confound justice.

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The tone of the opt-out letters are important to the parties in

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this case. The above objecting parties tone and choice of words in emails to

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counsel for the above named parties goes beyond what should be part of the

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formal public record, thus will not be repeated here.

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The relevance of General Order 45, specifically the uncited

portions of § VII could not be determined.
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The opt-out filings in this case have not and cannot reach the

level of that in Georgine v. Amchem Prods., 160 F.R.D. 478 (E.D. Penn.

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1995) where “a total of 236,323 timely exclusion requests were received”.

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There are only about 250,000 class members in this case.

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Due to defendants delays in timely providing the email

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addresses of class members, WorldMark v. Miller, Case No. 34-2008-

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00025130 (Supr Ct Sacramento Cty, CA October 22, 2008), affirmed No.

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S186940 (Sup Ct CA December 1, 2010); Miller v. Worldmark, Case No.

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34-2010-00083295 (Supr Ct. Sacramento Cty, CA July 22, 2010); and

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WorldMark v. Miller, Case No. 11-2-09031-1 (Supr Ct King Cty WA March

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7, 2011), the class could not be notified by fellow class members of relevant

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information regarding the Settlement until July 1, 2011, a mere 7 days

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before opt-out letters were required to be post marked.

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Class members were burdened with the requirements they mail

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three (3) separate copies of their opt-out letters to three separate addresses.

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The above requirements are still mandated in our electronic age to insure

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the no members’ voice is overlooked. Customarily, class action counsel has

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a duty to report on all the class members’ communications regarding a

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settlement. The report usually includes a cross-check with filings made with

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the court to insure no members’ filing is lost. This court’s order, Doc. 1086

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obfuscates the class counsel’s ability to insure all filings are considered.

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However, more important, the class’s ability to judge fellow class members
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temperament is severally undermined. As outlined above, the homogeneity

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of this class has resulted in three (3) State Cases involving rights of

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members to members list. This class’s objection and opt-out base due to

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the number of filings should have put this court on notice that limiting this

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class’s access to information is warranted only under aggravating

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circumstances which have not been presented in this case.

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Counsel for the above named parties should be provided copies

of all relevant filings, including specifically all opt-out letters by email.

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BASED ON THE FOREGOING, your honor is requested to reconsider

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whether order, Doc. 1086 meets the standards of justice and to correct the

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above order accordingly, and/or to order that all opt-out letters be timely

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sent by email to the above named parties’ counsel of record. A proposed

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order does not follow.

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Dated: July 15, 2011

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Respectfully submitted,

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By:

_/s/_Stephan Willett__
Stephan Willett

The Court does not find good cause to reconsider its decision. Accordingly, the request is
DENIED.
August 3, 2011

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