Briggs v. United States of America et al

Filing 241

SECOND SUPPLEMENTAL ORDER RE PLAINTIFFS MOTION FOR ADDITIONAL ATTORNEY'S FEES AND/OR CY PRES DISTRIBUTION AND DEFENDANT'S MOTION FOR CY PRES DISTRIBUTION [re 240 MOTION to Amend/Correct 239 Order on Motion for Hearing,, Order on Motion to Amend/Correct, filed by Julius Briggs]. Signed by Judge William Alsup on 3/6/2012. (whasec, COURT STAFF) (Filed on 3/6/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JULIUS BRIGGS, on behalf of himself
and all others similarly situated,

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Plaintiff,

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No. C 07-05760 WHA
SECOND SUPPLEMENTAL ORDER
RE PLAINTIFF’S MOTION FOR
ADDITIONAL ATTORNEY’S FEES
AND/OR CY PRES DISTRIBUTION
AND DEFENDANT’S MOTION
FOR CY PRES DISTRIBUTION

v.
UNITED STATES OF AMERICA,
Defendant.
/

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On February 14, 2012, an order issued denying plaintiff’s motion for additional

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attorney’s fees and/or cy pres distribution and granting defendant’s motion for cy pres

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distribution. That order directed, among other things, that the class administrator (“KCC”)

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promptly transfer all funds constituting class fund residue to cy pres recipient AAFES

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(Dkt. No. 237 at 8). That order was amended on February 23 (Dkt. No. 239).

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Class counsel now advises the Court of a discrepancy in the accounting provided.

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KCC overstated the amount of uncashed check funds as $131,844.80 (Dkt. No. 235).

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The present value of uncashed check funds is, instead, $54,487.27. The latest stale date

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for uncashed checks is March 18, 2012. The balance of $77,357.53 reflects the amount

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due to 96 identified class members who, as it turns out, have not yet received checks at all.

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Additionally, two class members have come forward since the order dated February 14.

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These two members are owed refunds in the amount of $2,680.06 (Br. 2; Vishner Decl. ¶¶ 3–5).

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In light of these unfortunate developments, class counsel moves to amend the February

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14 order, as amended on February 23, to allow KCC to distribute funds to the identified class

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members before transferring class fund residue to AAFES. Class counsel also seeks a partial fee

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distribution of $70,000, reflecting half of the outstanding fees, minus interest. No early

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distribution of attorney’s fees shall be made. Because the Court agrees with the KCC part,

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the order dated February 14 as amended (Dkt. Nos. 237, 239) is hereby amended yet again as

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follows:

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1.

KCC, as soon as practicable, issue refund checks to the 98 persons

listed in Exhibit A of the Vishner Declaration (Dkt. No. 240-1, Exh. A);
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KCC cease re-issuance of distribution checks, other than the

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98 checks listed above in (1), and maintain custody of all funds constituting class

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fund residue and uncashed check funds;

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3.

KCC, within five business days of the last stale date of all

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uncashed checks, including those checks issued pursuant to this order, transfer all

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funds constituting class fund residue and uncashed check funds to the AAFES;

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KCC shall further provide AAFES with the identities of all class members whose

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checks were not cashed;

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4.

Upon transfer of the funds listed above in (3), KCC transfer

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$140,000 in awarded attorney’s fees and interest accrued on awarded fees

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according to the direction of class counsel.

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Upon completion of the above, KCC shall provide the Court with an accounting of all

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transfers made from the class fund and file a termination report.

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The additional delay required to hold funds awaiting clearance of all checks should be

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cost-free to the fund. This snafu is the making of either KCC or class counsel. Accordingly,

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either KCC or class counsel should absorb this cost. The two should let the court know how

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this cost will be addressed by NOON ON MARCH 12, 2012.

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IT IS SO ORDERED.

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Dated: March 6, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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