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class (either the entire class or at least the members who originally made claims) before resorting to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