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

Filing 668

ORDER by Judge Jeffrey S. White GRANTING AS MODIFIED #661 Motion for Preliminary Approval of Class Action Settlement. (jswlc3, COURT STAFF) (Filed on 12/3/2010)

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

Doc. 668

Case3:07-cv-02361-JSW Document662

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Jonathan K. Levine (State Bar No. 220289) [e-mail] Elizabeth C. Pritzker (State Bar No. 146267) [e-mail] Todd I. Espinosa (State Bar No. 209591) [e-mail] GIRARD GIBBS LLP 601 California Street, 14th Floor San Francisco, California 94108 Telephone: [phone] Facsimile: [phone] Attorneys for Individual and Representative Plaintiffs Clarke and Rebecca Wixon, Norman and Barbara Wixon, Kandice Scattolon and the Class

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Clarke and Rebecca Wixon, Norman and Barbara Wixon, and Kandice Scattolon, on behalf of themselves and all others similarly situated, Plaintiffs, v. Wyndham Resort Development Corp. (f/k/a Trendwest Resorts, Inc.), Defendant. CLASS ACTION Date: December 3, 2010 Time: 9:00 a.m. Courtroom: Hon. Jeffrey S. White Case No. C 07 2361 JSW (BZ) [PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AS MODIFIED HEREIN

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. C 07 2361 JSW (BZ)
Dockets.Justia.com

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This matter came before the Court for hearing on December 3, 2010, on the joint application of Plaintiffs Clarke and Rebecca Wixon, Norman and Barbara Wixon and Kandice Scattolon ("Plaintiffs") and Defendant Wyndham Resort Development Corporation ("Wyndham") (Plaintiffs and Wyndham are referred to collectively as the "Parties") for preliminary approval of the proposed Settlement Agreement and Release ("Settlement"), resolving the class claims asserted in the litigation against Wyndham. In their joint application, the Parties further request (i) leave for Plaintiffs to file a Sixth Amended Complaint to conform the class definition set forth in the pleadings with that contained in the proposed Settlement, (ii) preliminary certification of a settlement class, and (iii) approval of the form of Summary Notice to be electronically published to the settlement class. The Court having considered all papers filed and proceedings had herein, and otherwise being fully informed in the premises and good cause appearing therefore, IT IS HEREBY ORDERED that: 1. Solely for purposes of the proposed Settlement, the Court grants Plaintiffs leave to file a

Sixth Amended Complaint to conform the class definition and class allegations to the proposed Settlement, which is attached as Exhibit 1 to the Parties' Joint Application. Wyndham is excused from filing an answer or any other responsive pleading with respect to the Sixth Amended Complaint, without prejudice to Wyndham and its right to deny allegations and otherwise respond under the Federal Rules of Civil Procedure, absent this Settlement becoming effective. 2. The Court previously entered an order certifying a litigation class pursuant to Fed. R.

Civ. P. 23. (See Dkt No. 420.) For the reasons stated in the Court's prior class certification order, the Court finds that the Parties' proposed settlement class satisfies the prerequisites of numerosity, commonality, typicality, and adequacy of representation, and further finds that common questions predominate over any questions affecting only individual members such that resolution on a class basis is superior to other available methods for a fair resolution of this controversy. Fed. R. Civ. P. 23(a), (b). Accordingly, the Court preliminarily certifies the following class for purposes of the proposed Settlement (the "Settlement Class"): All Current WorldMark, The Club members as of Preliminary Approval. Excluded from the Class are Defendants, any entity in which any Defendant has or had a controlling interest, any officers or directors of Wyndham, the legal representatives, heirs, successors, and assigns of Defendants, and any judge assigned to this action and his or her immediate family. 1
[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. C 07 2361 JSW (BZ)

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3.

Capitalized terms not otherwise defined herein shall have the same meaning as set forth

in the Settlement. 4. The Court preliminarily approves the proposed Settlement, finding that its terms appear

sufficiently fair, reasonable, and adequate to warrant dissemination of notice of the proposed Settlement to the Settlement Class. The Court finds that the proposed Settlement contains no obvious deficiencies and that the parties entered into the proposed Settlement in good faith, following arms-length negotiation between their respective counsel. With the modification noted, 5. The Court hereby approves the form and procedures for disseminating a Summary Notice of Class Action Settlement ("Summary Notice") to the Settlement Class set forth in the proposed Settlement. Within ten (10) business days after entry of this Order: (a) Wyndham shall cause the Summary Notice to be posted in a clear and prominent manner in a location accessible only to WorldMark members on the WorldMark by Wyndham website (www.worldmarktheclub.com); and (b) Plaintiffs' counsel shall cause the Summary Notice to be posted in a clear and prominent manner on the Girard Gibbs LLP firm website (www.girardgibbs.com). The Summary Notice shall remain on these websites until formal settlement notice is issued to the Settlement Class or until such other date as the The summary notice shall be modified to reflect that Plaintiffs may receive Court may order. incentive awards in the amount of $5,000, which are subject to Court approval. 6. Wyndham shall comply with the requirements of 28 U.S.C. § 1715(b) and timely serve notice of the proposed Settlement upon the appropriate federal official and the appropriate State official of each State in which a Settlement Class member resides. Wyndham shall also provide copies of its submissions to Plaintiffs' counsel. 7. On or before March 3 _____________, 2011, the Parties shall submit a report to the Court

advising of: (i) the WorldMark Board's consent to the Settlement; and (ii) the status of the Parties' efforts to obtain Regulatory Approval to implement the terms of the Settlement. If, at that time, Wyndham attests that Regulatory Approval is, in Wyndham's estimate, likely to be attained, the Parties may propose a timeline and procedure for providing formal settlement notice to the Settlement Class, and propose a hearing and schedule for final settlement approval by the Court. // // 2
[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. C 07 2361 JSW (BZ)

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8.

March 25 A further status conference shall be held on ______________________, 2011.at 1:30 p.m.

IT IS SO ORDERED.

December 3 Dated:__________________, 2010

____________________________________________ Honorable Jeffrey S. White United States District Judge

The Court also has received and considered letters from Matthew Shiner and Robin Miller, which will be made part of the record. The Court finds that those arguments are better addressed at the time this matter is submitted for final approval.

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CERTIFICATE OF SERVICE I, Elizabeth C. Pritzker, hereby certify that on October 21, 2010, I filed the following document(s):
1.

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

By ECF (Electronic Case Filing): I e-filed the above-detailed document utilizing the United States District Court, Northern District of California's mandated ECF service on October 21, 2010. Counsel of record are required by the Court to be registered e-filers, and as such are automatically eserved with a copy of the document(s) upon confirmation of e-filing. I declare under penalty of perjury that the foregoing is true and correct. Executed at San Francisco, CA on October 21, 2010. /S/ Elizabeth C. Pritzker

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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. C 07 2361 JSW (BZ)