Mas v. Cumulus Media Inc.

Filing 60

ORDER Re Additional Briefing for October 28, 2011 Hearing. Signed by Judge Edward M. Chen on 10/12/2011. (emcsec, COURT STAFF) (Filed on 10/12/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BRIAN MAS,

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Plaintiff,

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v.

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For the Northern District of California

United States District Court

No. C-10-1396 EMC

CUMULUS MEDIA INC.,

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ORDER RE ADDITIONAL BRIEFING
FOR OCTOBER 28, 2011 HEARING

Defendant.
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The parties’ joint motion for preliminary approval is currently set for hearing on October 28,

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2011. The Court has reviewed the papers submitted with respect to that motion. Having reviewed

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the papers, the Court hereby orders that the parties be prepared to discuss the following issues at the

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October 28 hearing. In addition, where additional briefing is requested, it is so noted below. Any

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additional briefing shall be filed by October 19, 2011.

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A.

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Claims Procedure and Claims Rate
The parties should be prepared to discuss the necessity of having a claims procedure. In

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addition, the parties should be prepared to discuss what they anticipate the claims rate will be.

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B.

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Time to Submit Claim, Object, and/or Opt Out
In the motion, the parties state that a class member may submit a claim or opt out by faxing

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or postmarking the claim or request for exclusion within 60 days of the date of the notice; however,

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a class member who objects must ensure that the objection is received within 60 days of the date of

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the notice. See Mot. at 12, 19. The notice is not consistent. It states that not only objectors but also

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opt-outs must ensure that their objections or requests for exclusion are received within 60 days. See

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Not. at 2. (In addition, the notice refers only to mailing as an option on page 2, and not faxing as an

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alternative. See Not. at 2.) The parties should be prepared to address this inconsistency at the

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hearing.

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In addition, the parties should address in supplemental briefing why, as a matter of fairness,

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objectors and/or opt-outs should not also be entitled to have their objections or requests for

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exclusion faxed or postmarked within 60 days.

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C.

Deficient Claim Form

class member who submits a deficient claim form is to be notified of such; however, he or she may

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correct the form only if the submission can be done within 60 days of the original class notice. See

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For the Northern District of California

In paragraph D.15.e.iv of the settlement agreement, deficient claim forms are addressed. A

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United States District Court

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Stip. ¶ D.15.e.iv. It is not clear why a class member who submits a deficient claim form on, e.g., the

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60th day should not be given a brief time period thereafter to correct the deficiency. The parties

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should address this issue in supplemental briefing.

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D.

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Reverter
In their motion, the parties state that any undisbursed funds (“residuum”) shall revert back to

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Defendant. However, the settlement agreement provides that undisbursed funds shall revert to a cy

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pres account. See Stip. ¶ D.14. Presumably, the settlement agreement governs. If not, then the

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parties should in supplemental briefing explain the discrepancy and why a reversion rather than cy

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press is provided.

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E.

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Amount Offered in Settlement
The motion identifies the amount of the settlement, but it is not clear from the papers what

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are the maximum damages that Plaintiff and/or the class could have obtained, assuming that they

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prevailed after a trial on the merits. Additional briefing on this issue is requested.

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F.

Strengths and Weaknesses of Plaintiff’s Case

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In the motion, the parties have not provided any specifics about the strengths and/or

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weaknesses of the various claims asserted in the class action complaint. Additional briefing on this

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issue is requested.

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G.

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Depositions
In their motion, the parties assert that numerous depositions were taken. In supplemental

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briefing, the parties shall provide a more detailed description as to the exact number of depositions,

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identity of the deponents, and the relevance of the witness.

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H.

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Incentive Awards
The settlement agreement provides that Mr. Mas may be awarded $20,000, Ms. Stanton

briefing why awards in these amounts are justified. As part of this supplemental briefing, the parties

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should specify the number of hours each individual has spent on the litigation and what specific

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claims are being given up by each individual that are different from those being given up by the

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For the Northern District of California

$15,000, and Ms. Phillips $10,000 as incentive awards. The parties should address in supplemental

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United States District Court

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class.

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I.

Class Notice

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1.

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On pages 1, 2, and 7 of the notice, it is not clear that a class member may both object and

Objecting and Submitting Claim

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submit a claim at the same time – and that, if a class member objects but fails to submit a claim, then

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he or she risks getting no settlement share if the Court approves the settlement. The Court

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acknowledges that these points are made in a subsequent part of the notice (pages 9 and 10) but,

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arguably, they should be made at the outset of the notice as well. In addition, on pages 9 and 10,

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these same points should arguably be highlighted by using bold and/or underlining.

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2.

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On page 7 of the notice, it is not clear why the summary of the release does not include a

Summary of Release

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statement that claims that could have been asserted area also being released. The summary should

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be enhanced.

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3.

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On pages 8 and 10 of the notice, the wrong courtroom is identified (Courtroom C instead of

Incorrect Courtroom

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Courtroom 5). In addition, for purposes of clarity, it may be useful to include the floor of the correct

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courtroom (i.e., 17th floor).

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4.

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On page 10 of the notice, the notice suggests that an objector must submit a notice of intent

Objectors

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to appear in order to object. See Not. at 10. However, the parties’ settlement agreement indicates

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that an objector may – but is not required to – appear. See Stip. ¶ 21. This inconsistency should be

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addressed in supplemental briefing or removed from the proposed notice.

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5.

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On page 11, the notice states that a class member may review the Court file from 9:00 a.m. to

Review of Court File

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1:00 p.m. See Not. at 11. However, a file may be reviewed up until only 12:45 p.m. in the Clerk’s

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Office.
J.

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For the Northern District of California

United States District Court

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Claim Form
At the top, the claim form states that “Incomplete and/or late Claim Forms will be

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rejected.” Arguably, the claim form should state: “Incomplete, unsigned, and/or late Claim

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Forms will be rejected.”

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At the end, the claim form notes: “[Note: You must complete, sign and timely submit this

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original Claim Form or your claim may be denied.]” Arguably, the claim form should state that

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the claim will be denied to be consistent with the above. In addition, this particular statement should

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arguably be broken out in a separate paragraph and put in ALL CAPS so that it will be highlighted

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to the class members.

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K.

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Rule 23(a) and (b) Requirements
The proposed order should include language about the Rule 23(a) and (b) requirements.

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IT IS SO ORDERED.

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Dated: October 12, 2011

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_________________________
EDWARD M. CHEN
United States District Judge

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