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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ELLIOT ZEISEL,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C 10-01192 JSW

v.

NOTICE OF QUESTIONS FOR
HEARING

DIAMOND FOODS, INC.,
Defendant.
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE

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NOTICE OF THE FOLLOWING QUESTIONS FOR THE HEARING SCHEDULED ON

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OCTOBER 12, 2012, AT 9:00 A.M.:

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The Court has reviewed the parties’ papers and, thus, does not wish to hear the parties

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reargue matters addressed in those pleadings. If the parties intend to rely on authorities not

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cited in their briefs, they are ORDERED to notify the Court and opposing counsel of these

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authorities reasonably in advance of the hearing and to make copies available at the hearing. If

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the parties submit such additional authorities, they are ORDERED to submit the citations to the

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authorities only, with reference to pin cites and without argument or additional briefing. Cf.

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N.D. Civil Local Rule 7-3(d). The parties will be given the opportunity at oral argument to

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explain their reliance on such authority. The Court suggests that associates or of counsel

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attorneys who are

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working on this case be permitted to address some or all of the Court’s questions contained

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herein.

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1.

The parties distinguish Dennis v. Kellogg, – F.3d – , 2012 WL 3800230 (9th Cir. Sept. 4,

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2012), in part on the basis that the court in that case evaluated a settlement that was

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reached before the class was certified and, thus, was subject to a higher standard of

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fairness and a more probing inquiry than might normally be required. Id., 2012 WL

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3800230, at *4 (citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).

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The court in the Dennis case also noted that the settlement agreement, which was “the

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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

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For the Northern District of California

United States District Court

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were donations to which the defendant had already obligated itself to give. Here, the

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Settlement Agreement does identify that any donations would be at retail value, but it

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remains silent on the issue of pre-existing obligations and the specific charities.

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a.

Given that the Settlement Agreement is the only legally enforceable document,

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and in light of the fact that the Court cannot rewrite portions of the Settlement

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Agreement, do the parties have any other authority or argument that the

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provisions regarding the cy pres distribution meet the standards required by

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Dennis and are fair, reasonable and adequate?

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2.

In Dennis, the court also concluded that the selected charities - food banks - did not have

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the requisite nexus to the plaintiff’s claims under the UCL and the CLRA, because the

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gravamen of the plaintiffs’ claims were about false advertising. Like the plaintiff in

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Dennis, Zeisel brings claims under the UCL and the CLRA, as well as the FAL. The

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gravamen of Zeisel’s claims focuses on the allegedly false and misleading content of the

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Disputed Labels, as was the case in Dennis. See Dennis, 2012 WL 3800230, at *7

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(finding that parties’ assertions that case was about the nutritional value of food “is

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simply not true” and noting that gravamen of lawsuit was about false advertisements).

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Although the parties state that the American Heart Association and the specific food

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banks identified in the Sibert Declaration had educational programs about nutrition, is
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there any evidence in the record that any of these organizations make any efforts to

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protect consumers from or redress injuries caused by false advertising? See Dennis,

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2012 WL 3800230, at *7. What is the parties’ best argument that this case is, unlike

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Dennis, about the nutritional value of the food in question?

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2.

Do Plaintiffs have any authority to show that the Court should approve the incentive

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award to Mr. Zeisel when he, himself, has not substantiated the amount of time spent on

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this case?

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IT IS SO ORDERED.

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Dated: October 9, 2012
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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