Harris v. Vector Marketing Corporation

Filing 510

ORDER Re Second Supplemental Briefing for Plaintiff's Motion for Final Approval. Signed by Judge Edward M. Chen on 1/5/2012. (emcsec, COURT STAFF) (Filed on 1/5/2012)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 ALICIA HARRIS, 9 Plaintiff, ORDER RE SECOND SUPPLEMENTAL BRIEFING FOR PLAINTIFF’S MOTION FOR FINAL APPROVAL v. 11 For the Northern District of California United States District Court 10 No. C-08-5198 EMC VECTOR MARKETING CORPORATION, 12 Defendant. ___________________________________/ 13 14 15 The Court has reviewed the parties’ joint supplemental brief of December 29, 2011. See 16 Docket No. 509 (joint supplemental brief). Although the parties have asserted that the additional 17 money made available through the new settlement is an “unclaimed fund,” Nachshin v. AOL, LLC, 18 No. 10-55129, 2011 U.S. App. LEXIS 23244, at *8 (9th Cir. Nov. 21, 2011) (noting that, “[i]n the 19 context of class action settlements, a court may employ the cy pres doctrine to ‘put the unclaimed 20 fund to its next best compensation use, e.g., for the aggregate, indirect, prospective benefit of the 21 class’”), it is not clear whether the proposed settlement here comports with Nachshin. The Court 22 therefore orders the parties to provide supplemental briefing on the following issues: 23 24 25 (1) Is the additional money made available through the new settlement properly characterized as an “unclaimed fund”? (2) What is the justification for not making the additional money available first to the 26 class (either the entire class or at least the members who originally made claims) before resorting to 27 the “next best” use of a cy pres account under Nachshin? See, e.g., 5-23 Moore’s Fed. Prac. – Civ. § 28 23.171 (noting that “[a]n important concern in evaluating the fairness of . . . a settlement is whether 1 all class members who submit claims are fully compensated before funds are used for other 2 purposes”); Howe v. Townsend, 588 F.3d 24, 35 (1st Cir. 2009) (indicating approval of an approach 3 where remaining settlement money is redistributed to class members first to ensure they recover 4 their losses); Hartless v. Clorox Co., 278 F.R.D. 630, 642 (S.D. Cal. 2011) (noting that “[t]he issue 5 of cy pres distribution . . . is premature until the claims process is concluded and it is determined that 6 there are unclaimed funds”). 7 The supplemental briefs shall be filed within a week of the date of this order. Supplemental 8 briefs shall be no longer than seven (7) pages. In lieu of separate supplemental briefs, the parties 9 may, if they wish, file a joint supplemental brief not to exceed ten (10) pages. 11 For the Northern District of California United States District Court 10 The parties should be prepared to address the above issues at the hearing on the motion for final approval on January 27, 2012. 12 13 IT IS SO ORDERED. 14 15 Dated: January 5, 2012 16 _________________________ EDWARD M. CHEN United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 2

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