Zeisel v. Diamond Foods, Inc.

Filing 232

NOTICE OF QUESTIONS FOR HEARING. Signed by Judge Jeffrey S. White on October 9, 2012. (jswlc3, COURT STAFF) (Filed on 10/9/2012)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 ELLIOT ZEISEL, 11 For the Northern District of California United States District Court 10 12 13 Plaintiff, No. C 10-01192 JSW v. NOTICE OF QUESTIONS FOR HEARING DIAMOND FOODS, INC., Defendant. / 14 15 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE 16 NOTICE OF THE FOLLOWING QUESTIONS FOR THE HEARING SCHEDULED ON 17 OCTOBER 12, 2012, AT 9:00 A.M.: 18 The Court has reviewed the parties’ papers and, thus, does not wish to hear the parties 19 reargue matters addressed in those pleadings. If the parties intend to rely on authorities not 20 cited in their briefs, they are ORDERED to notify the Court and opposing counsel of these 21 authorities reasonably in advance of the hearing and to make copies available at the hearing. If 22 the parties submit such additional authorities, they are ORDERED to submit the citations to the 23 authorities only, with reference to pin cites and without argument or additional briefing. Cf. 24 N.D. Civil Local Rule 7-3(d). The parties will be given the opportunity at oral argument to 25 explain their reliance on such authority. The Court suggests that associates or of counsel 26 attorneys who are 27 28 1 working on this case be permitted to address some or all of the Court’s questions contained 2 herein. 3 1. The parties distinguish Dennis v. Kellogg, – F.3d – , 2012 WL 3800230 (9th Cir. Sept. 4, 4 2012), in part on the basis that the court in that case evaluated a settlement that was 5 reached before the class was certified and, thus, was subject to a higher standard of 6 fairness and a more probing inquiry than might normally be required. Id., 2012 WL 7 3800230, at *4 (citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). 8 The court in the Dennis case also noted that the settlement agreement, which was “the 9 only legally-enforceable document” was silent on a number of key points, including the specific charities that would receive cy pres distributions and whether the donations 11 For the Northern District of California United States District Court 10 were donations to which the defendant had already obligated itself to give. Here, the 12 Settlement Agreement does identify that any donations would be at retail value, but it 13 remains silent on the issue of pre-existing obligations and the specific charities. 14 a. Given that the Settlement Agreement is the only legally enforceable document, 15 and in light of the fact that the Court cannot rewrite portions of the Settlement 16 Agreement, do the parties have any other authority or argument that the 17 provisions regarding the cy pres distribution meet the standards required by 18 Dennis and are fair, reasonable and adequate? 19 2. In Dennis, the court also concluded that the selected charities - food banks - did not have 20 the requisite nexus to the plaintiff’s claims under the UCL and the CLRA, because the 21 gravamen of the plaintiffs’ claims were about false advertising. Like the plaintiff in 22 Dennis, Zeisel brings claims under the UCL and the CLRA, as well as the FAL. The 23 gravamen of Zeisel’s claims focuses on the allegedly false and misleading content of the 24 Disputed Labels, as was the case in Dennis. See Dennis, 2012 WL 3800230, at *7 25 (finding that parties’ assertions that case was about the nutritional value of food “is 26 simply not true” and noting that gravamen of lawsuit was about false advertisements). 27 Although the parties state that the American Heart Association and the specific food 28 banks identified in the Sibert Declaration had educational programs about nutrition, is 2 1 there any evidence in the record that any of these organizations make any efforts to 2 protect consumers from or redress injuries caused by false advertising? See Dennis, 3 2012 WL 3800230, at *7. What is the parties’ best argument that this case is, unlike 4 Dennis, about the nutritional value of the food in question? 5 2. Do Plaintiffs have any authority to show that the Court should approve the incentive 6 award to Mr. Zeisel when he, himself, has not substantiated the amount of time spent on 7 this case? 8 IT IS SO ORDERED. 9 Dated: October 9, 2012 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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