Kazemi v. Payless Shoesource, Inc. et al

Filing 86

ORDER Re Supplemental Briefing. Signed by Judge Edward M. Chen on 2/22/2012. (emcsec, COURT STAFF) (Filed on 2/22/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MOHAMMAD KAZEMI, individually and on
behalf of a class of similarly situated
individuals,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C-09-5142 EMC

ORDER RE SUPPLEMENTAL
BRIEFING

v.

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PAYLESS SHOESOURCE, INC., et al.,

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Defendants.
___________________________________/

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Plaintiff’s motion for final approval and related motion for attorney’s fees and costs are

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currently set for hearing on March 23, 2012. Having reviewed the motions, the Court finds that

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supplemental briefing on one specific issue is necessary.

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Under the parties’ settlement agreement, if the amount claimed by the class members is less

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than $5 million, then Payless shall make contributions to charities in an amount equal to the

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difference between the redemption amount and $5 million. The cy pres contributions shall be in the

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form of merchandise certificates, each with a face value of $15. The cy pres recipients shall be any

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tax-exempt charity designated by Payless in consultation with class counsel and approved by the

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Court. See Docket No. 53 (Sett. Agreement § 7). The Court gave this cy pres provision preliminary

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approval in September 2011. See Docket No. 76 (order).

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Two months later, the Ninth Circuit decided Nachshin v. AOL, LLC, 663 F.3d 1034 (9th Cir.

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2011). There, the court held that “[c]y pres distributions must account for the nature of the

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plaintiffs’ lawsuit, the objectives of the underlying statutes, and the interests of the silent class

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members, including their geographic diversity.” Id. at 1036. In light of Nachshin, the parties should

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provide supplemental briefing as to how the cy pres provision in their settlement agreement meets

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the standard articulated by the Ninth Circuit therein.

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The Court would prefer a joint supplemental brief from the parties, not to exceed ten (10)

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pages in length. If the parties are not able to agree upon a joint brief, then each party’s brief shall

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not exceed five (5) pages. The supplemental brief(s) shall be filed by March 9, 2012. To the extent

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a party believes that a modification of the cy pres provision may be necessary or at least advisable

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based on Nachshin, the parties should meet and confer to determine whether they can reach

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agreement on a modification prior to the supplemental briefing deadline.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: February 22, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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