Labins v. The Charles Schwab Corporation et al

Filing 906

ORDER DENYING THE UNTIMELY REQUEST OF MARLENE DELOUISE TO OPT OUT. Signed by Judge Alsup on October 4, 2010. (whalc2, COURT STAFF) (Filed on 10/4/2010) (Additional attachment(s) added on 10/4/2010: # 1 Certificate of Service) (dt, COURT STAFF).

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In re Charles Schwab Corp. Securities Litigation Doc. 906 1 2 3 4 5 6 7 8 9 10 IN RE: CHARLES SCHWAB CORPORATION SECURITIES LITIGATION. This Document Relates To All Cases. / No. C 08-01510 WHA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DENYING THE UNTIMELY REQUEST OF MARLENE DELOUISE TO OPT OUT OF THE FEDERAL SECURITIES CLASS This order addresses the application of federal securities class member Marlene DeLouise seeking permission to opt out of the class after the deadline (see Dkt. No. 876). Counsel responded to the application on October 1 (Dkt. Nos. 889 and 890). The standard for determining whether a class member should be allowed to opt out of a class action after the applicable exclusion deadline has passed is whether the class member's failure to meet the deadline is the result of "excusable neglect." See Silber v. Mabon, 18 F.3d 1449, 1455 (9th Cir. 1994). This standard allows courts, "where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party's control." Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 388 (1993). When evaluating whether "excusable neglect" applies, the Ninth Circuit instructs courts to consider the "degree of compliance with the best practicable notice procedures; when notice was actually received and if not timely received, why not; what caused the delay, and whose responsibility was it; how quickly the belated opt out request was made once notice was received; 1 2 3 4 5 6 7 8 9 10 how many class members want to opt out; and whether allowing a belated opt out would affect either the settlement or finality of the judgment." Silber, 18 F.3d at 1455 (internal footnote omitted). Additionally, the court should consider the danger of prejudice to the opposing party, and whether the movant acted in good faith. Pioneer, 507 U.S. at 395. Having considered the factors set forth above, this order finds that the facts and circumstances underlying the request of Marlene DeLouise do not support a finding of excusable neglect under Ninth Circuit law. The only excuse provided by Ms. DeLouise is that she did not receive the opt-out notice sent to federal securities class members on October 12, 2009. While it may be true that she did not learn of her involvement in the instant case until recently, the class action notice was properly sent via first-class mail to the address associated with her Schwab account(s) and was not returned to the claims administrator as "undeliverable" (see Dkt. No. 751-1, listing all class members for whom notices were returned "undeliverable" and where new addresses could not be found). In other words, the notice provided to Ms. DeLouise was reasonably calculated to give her actual notice of this class action and was constitutionally sufficient. This weighs against a finding of excusable neglect. The instant motion provides no other reasons why excusable neglect should be found. Under the factors that govern the determination of excusable neglect, this order finds that the reasons set forth by class member Marlene DeLouise are legally insufficient to show excusable neglect. Furthermore, if such excuses were deemed sufficient to warrant exclusion at this time, defendants would be prejudiced, given their commitment to a settlement amount that was negotiated with a stable class membership in mind. For these reasons, even if brought in good faith, the request must be DENIED. The clerk shall serve this order on the applicant at the following address: Marlene DeLouise, 2715 Maynard Drive, Glenview, IL 60025. IT IS SO ORDERED. Dated: October 4, 2010. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 2

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