Zeisel v. Diamond Foods, Inc.

Filing 243

ORDER GRANTING 242 STIPULATION REGARDING CY PRES DISTRIBUTION. Signed by Judge JEFFREY S. WHITE on 6/26/13. (jjoS, COURT STAFF) (Filed on 6/26/2013)

Case3:10-cv-01192-JSW Document242 Filed06/18/13 Page1 of 4

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Jeffrey J. Lederman (SBN: 104622)
[e-mail]
Jeffrey S. Bosley (SBN: 167629)
[e-mail]
Amanda L. Groves (SBN: 187216)
[e-mail]
WINSTON & STRAWN LLP
101 California Street
San Francisco, CA 94111-5802
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
DIAMOND FOODS, INC.

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101 California Street
San Francisco, CA 94111-5802

UNITED STATES DISTRICT COURT

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Winston & Strawn LLP

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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ELLIOT ZEISEL, on behalf of himself and all
others similarly situated,

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Plaintiff,
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Case No. 3:10-cv-01192 JSW (EDL)
STIPULATION AND [PROPOSED]
ORDER REGARDING CY PRES
DISTRIBUTION

v.
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DIAMOND FOODS, INC., a Delaware
corporation,

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Defendant.

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DIAMOND FOODS, INC.’S STIPULATION
AND [PROPOSED] ORDER REGARDING CY PRES DISTRIBUTION
CASE NO. 3:10-CV-01192 JSW (EDL)

Case3:10-cv-01192-JSW Document242 Filed06/18/13 Page2 of 4

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Plaintiff Elliott Zeisel and Defendant Diamond Foods, Inc. (collectively, the “Parties”),
through their undersigned counsel, hereby stipulate and agree as follows:
WHEREAS, in December 2011, the Parties entered into a Settlement Agreement providing

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that that “[o]nce all proper Class Member Claims are paid, any residual restitution will be considered

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cy pres which Diamond will donate to non-interested, national, geographically diverse, third party

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food bank(s) in the form of food products.” (Docket Entry (“DE”) 205-1 at 14-15.);

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WHEREAS, in 2012, employee(s) of the Greater Bay Area Division of the America Heart

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Association (“AHA”) agreed that the AHA would accept food donations distributed in connection

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with the Settlement Agreement (Segre Decl. ¶ 2.);

101 California Street
San Francisco, CA 94111-5802

Winston & Strawn LLP

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WHEREAS, on September 14, 2012, Diamond Foods filed a supplemental brief regarding

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the cy pres portion of the Settlement Agreement. Based on the assurances it had received from the

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AHA, Diamond Foods identified the AHA as a cy pres recipient. (DE 227.) Diamond Foods also

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identified a number of geographically-diverse food banks that have nutritional education programs

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as alternative cy pres recipients. (DE 228-1, attached hereto as Exhibit A.);

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WHEREAS, on October 16, 2012, this Court issued an order granting final approval of the

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Settlement Agreement. (DE 237.) This order approved the AHA as the cy pres recipient,

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explaining “[t]he AHA is a nationwide organization, which reflects the fact that the Court approved

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a nationwide class and thus enables t[he] Court to evaluate whether any Residual Restitution would

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benefit areas where the class members may live. [Citation.] According to the record, the AHA

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provides food education on issues relating to heart healthy food, including education about how to

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read food labels.” (DE 237 (internal quotation marks omitted.) This Court also noted that the

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Parties “identif[ied] a number of food banks across the nation that have an educational component to

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their programs as alternative choices.” (Id.)

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WHEREAS, consistent with its order re final approval, and also on October 16, 2012, this
Court entered Judgment in this case;

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DIAMOND FOODS, INC.’S STIPULATION
AND [PROPOSED] ORDER REGARDING CY PRES DISTRIBUTION
CASE NO. 3:10-CV-01192 JSW (EDL)

Case3:10-cv-01192-JSW Document242 Filed06/18/13 Page3 of 4

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WHEREAS, following the claims deadline of October 26, 2012, the settlement administrator

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sent 21,384 claimants checks totaling $369,325.75 – and accounting for the $23,306.00 in checks not

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cashed prior to the April 17, 2013 expiration deadline, the Residual Restitution totals $2,253,980.25;

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WHEREAS, despite the fact that the AHA previously agreed to receive food donations

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without indicating there might be future barriers to those donations, in March 2013, the AHA

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informed Diamond Foods that their national legal team had decided to not move forward with the

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donations. (Segre Decl. ¶ 2.)

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WHEREAS, Feeding America — the nation’s leading domestic hunger-relief charity, which

101 California Street
San Francisco, CA 94111-5802

regularly distributes large volume of food product through its network of over 200 food banks across

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Winston & Strawn LLP

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the country — has indicated its prepared to distribute the cy pres food donation to the geographically

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diverse food banks with nutrition-education programs that Diamond Foods previously submitted in

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connection with its supplemental brief regarding the cy pres portion of the Settlement Agreement

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(Hanner Decl. ¶¶ 1-3.);

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NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among the

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Parties and their counsel that, upon approval by this Court, Feeding America shall replace the AHA

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as the recipient of the retail value of the Residual Restitution of the Settlement Agreement in the

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form of food products and shall distribute the food products among the food banks with nutrition-

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education components previously submitted to the Court (DE 228-1, attached hereto as Exhibit A).

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Dated: June 18, 2013

Respectfully Submitted,

FEINSTEIN DOYLE
PAYNE & KRAVEC, LLC

WINSTON & STRAWN LLP

By: /s/ Joseph N. Kravec, Jr.
Joseph N. Kravec, Jr.
(Admitted Pro Hac Vice)

By: /s/ Amanda L. Groves.
Amanda L. Groves

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DIAMOND FOODS, INC.’S STIPULATION
AND [PROPOSED] ORDER REGARDING CY PRES DISTRIBUTION
CASE NO. 3:10-CV-01192 JSW (EDL)

Case3:10-cv-01192-JSW Document242 Filed06/18/13 Page4 of 4

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Ellen M. Doyle
Wyatt A. Lison
Allegheny Building, 17th Floor
429 Forbes Avenue
Pittsburgh, PA 15219
Telephone: [phone]
Facsimile: [phone]

Jeffrey J. Lederman
Jeffrey S. Bosley
Amanda L. Groves
101 California Street
San Francisco, CA 94111-5802
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant Diamond Foods, Inc.
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Janet Lindner Spielberg
LAW OFFICES OF JANET LINDNER
SPIELBERG
12400 Wilshire Boulevard, Suite 400
Los Angeles, CA 90025
Telephone: [phone]
Facsimile: [phone]
Michael D. Braun
BRAUN LAW GROUP, P.C.
10680 West Pico Boulevard, Suite 280
Los Angeles, CA 90064
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff and the Class

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101 California Street
San Francisco, CA 94111-5802

Winston & Strawn LLP

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: _________________
June 26, 2013
The Honorable Jeffrey S. White
United States District Judge
I, Amanda L. Groves, hereby attest, pursuant to rule 5-1(i) of the Civil Local Rules of the

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United States District Court, Northern District of California, that the concurrence to the filing of this

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document has been obtained from each signatory hereto.

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/s/Amanda L. Groves
Amanda L. Groves

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DIAMOND FOODS, INC.’S STIPULATION
AND [PROPOSED] ORDER REGARDING CY PRES DISTRIBUTION
CASE NO. 3:10-CV-01192 JSW (EDL)