Parrish et al v. Manatt, Phelps & Phillips, LLP et al

Filing 116

ORDER CERTIFYING SETTLEMENT CLASS; SETTING FINAL FAIRNESS HEARING DATE; AUTHORIZING DISTRIBUTION OF NOTICE by Hon. William Alsup granting in part 112 Motion to Certify Class for Settlement Purposes.(whalc2, COURT STAFF) (Filed on 1/31/2013)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 8 9 11 For the Northern District of California United States District Court 10 BERNARD PARRISH, BOB GRANT, ROY LEE JEFFERSON, WALTER BEACH, DR. CLINTON JONES, WALTER ROBERTS, III, CLIFTON MCNEIL, MARVIN COBB, JOHN BRODIE, CHUCK BEDNARIK, AND PAUL HORNUNG on behalf of themselves and all others similarly situated, 12 13 14 15 16 Plaintiffs, No. C 10-03200 WHA ORDER CERTIFYING SETTLEMENT CLASS; SETTING FINAL FAIRNESS HEARING DATE; AUTHORIZING DISTRIBUTION OF NOTICE v. MANATT, PHELPS & PHILLIPS, LLP, and MCKOOL SMITH, PC, Defendants. / 17 INTRODUCTION 18 19 The Court has reviewed the proposed class settlement and counsel’s motion and exhibits 20 and hereby directs notice be given to class members, so that a final fairness hearing can be held 21 and a determination made as to whether to approve the proposed settlement and how much to 22 award class counsel for fees and costs. A fairness hearing will be held at 3:00 P.M. ON MAY 30, 23 2013, in Courtroom 8, on the 19th Floor, United States Courthouse, 450 Golden Gate Avenue, 24 San Francisco, California 94102. 25 STATEMENT 26 This action is a follow-on litigation to a prior class action, Adderley v. National Football 27 League Players Inc., No. 07-00943-WHA. Adderley was tried to a jury verdict and settled while 28 on appeal. The plaintiffs in the Adderley action filed this action on July 21, 2010, alleging that 1 defendant law firms Manatt, Phelps & Phillips, LLP and McKool Smith, P.C. had committed 2 malpractice in their representation of the plaintiffs in Adderley. 3 By order dated December 13, 2010, the complaint herein was dismissed (Dkt. No. 76). 4 Plaintiffs appealed to the United States Court of Appeals for the Ninth Circuit. While the action 5 was on appeal, the parties engaged in negotiations, assisted by Magistrate Judge Joseph Spero. 6 The parties have now filed a motion for preliminary approval of the settlement agreement. Key 7 provisions of the settlement agreement relevant to the proposed class are as follows: 8 9 11 For the Northern District of California United States District Court 10 First, defendants have deposited $3,500,000 into an escrow account to be used as the net settlement fund. All costs, fees, and expenses will be paid from this settlement fund, including any attorney’s fees and settlement administration costs. Second, after deducting attorney’s fees and costs and administration costs, the settlement 12 fund will be distributed based on a per-year basis (for each year between 2003–2006) in the same 13 percentage as ordered and approved in the Adderley settlement. 14 Third, Blecher & Collins, P.C. will seek reimbursement of costs and expenses in the 15 amount of approximately $100,000 and for attorney’s fees in an amount equal to 25% of the 16 remaining settlement fund after deduction of any costs and expenses awarded by the Court. 17 Fourth, the release would apply to each class member who does not timely opt out, and 18 will release defendants from “all claims and causes of action . . . that arise out of the facts, 19 occurrences, transactions, or other matters that were alleged in, are the subject of or relate to the 20 Present Action” as set forth in paragraph six of the settlement agreement. 21 Defendants have filed a joint statement of non-opposition to plaintiffs’ motion. 22 ANALYSIS 23 1. 24 Plaintiff seeks to certify a class under Rule 23(a) and (b)(3) for settlement purposes only, Certification of Settlement Class. 25 which defendant does not oppose. In determining whether the proposed class satisfies the 26 requirements of Rule 23, the proposed settlement may be considered as “a factor in the calculus.” 27 Amchem Products, Inc. v. Windsor, 521 U.S. 591, 622 (1997). The proposed class must satisfy 28 the requirements under Rule 23(a) of numerosity, commmonality, typicality, and adequacy of 2 1 representation. Next, plaintiffs must demonstrate that common questions of law or fact 2 predominate, and that a class action is superior to other available methods for fairly and 3 efficiently adjudicating the controversy. See Rule 23(b)(3). 4 The proposed settlement class is defined as: 5 9 All persons who were members of the certified class in the action styled Adderley v. National Football League Players Incorporated, et al., No. C 07-00943 WHA and who did not opt out of that class, including each of the named Plaintiffs. The proposed Settlement Class shall also include all persons who, by operation of law or otherwise, including, but not limited to, by assignment, rights of survivorship, marriage, domestic partnership, devise, agency, affiliation, or subrogation, own or have the right to enforce any portion of any of the claims brought in the present action by or on behalf of any person in the Settlement Class. 10 Plaintiffs state that the proposed class consists of 2,062 former National Football League players 11 who were previously certified as a class in the Adderley action. Common questions of law or fact 12 predominate, as plaintiffs assert claims for relief regarding defendants’ legal representation in the 13 Adderley action of essentially the same class of individuals for whom class certification is now 14 sought. Similarly, the claims of the named plaintiffs are typical of the claims or defenses of the 15 class, as they arise from claims based on defendants’ legal representation of the Adderley class. 6 7 For the Northern District of California United States District Court 8 16 Turning to the adequacy requirement, this prong is designed to protect the interests of 17 absentee class members based on two questions: “(1) Do the representative plaintiffs and their 18 counsel have any conflicts of interest with other class members, and (2) will the representative 19 plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Staton v. 20 Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003). As to the first question, the named plaintiffs 21 allege the same claims and seek the same relief for themselves and the proposed class. While the 22 Court has discretion to award a small incentive payment to the named plaintiffs to reasonably 23 compensate them for time spent litigating this action on behalf of the class, the settlement 24 agreement is not contingent on any such award. Regarding the second question, counsel from the 25 law firm Blecher & Collins, P.C. are experienced class action counsel (Blecher Decl. ¶¶ 2, 6). 26 Furthermore, counsel and the named plaintiffs have thus far doggedly prosecuted the action on 27 behalf of the class, including pursuing an appeal from an order dismissing the complaint. 28 3 1 As discussed above, common questions of law and fact predominate. Furthermore, 2 prosecuting this case as a class action is a superior method, where the claims of each individual 3 class member are the same, the potential value of each individual’s claim is not substantially 4 large, and there are over 2,000 potential class members. The class is defined to cover the same 5 individuals as the Adderley class, such that membership in the class can be readily determined. 6 This order notes that these findings are only in the context of class certification for 7 purposes of settlement, which defendants do not oppose. For the reasons discussed above, this 8 order finds that class certification for settlement purposes is appropriate. 9 Release. The release applies only to defendants (and their partners, associates, employees, agents, 11 For the Northern District of California United States District Court 10 2. insurers, attorneys, etc.). Class members who did not timely opt out would thus only release 12 claims against the law firm defendants related to the current action. This release is specifically 13 and narrowly directed at defendants and their actions in connection with representation of the 14 certified class in Adderley. 15 3. 16 Notice must be mailed to class members by FEBRUARY 15, 2013. The proposed notice 17 18 Form of Notice. form (Dkt. No. 112 Exh. 6) should be revised as follows: • 19 After the title “Notice of Proposed Class Action Settlement,” the following text should be added: 20 YOUR CLAIM FOR MALPRACTICE AGAINST THE LAW FIRMS MANATT, PHELPS & PHILLIPS, LLP AND MCKOOL SMITH, PC, WILL SOON BE EXTINGUISHED IN FAVOR OF A SETTLEMENT. 21 22 This notice has been authorized by the United States District Court to explain the situation to you and to explain your options to either accept the settlement (and give up your own right to sue) versus to opt out of the settlement (and retain your right to sue). You must act promptly if you wish to opt out of the settlement, as explained below. 23 24 25 26 27 • A sentence should be added at the end of the first paragraph under section “Status of the Litigation” to make clear that the plaintiffs’ appeal has not yet been decided. 28 4 1 • 2 3 In Section III, which recites the class definition, the notice should be revised to add the class definition of the class members bound by the Adderley settlement. • The section regarding the distribution plan should reference the proposed plan of 4 distribution, and the notice packets mailed to class members should include a copy 5 of the proposed plan. An acceptable revision would be along the lines of the 6 following (new language in italics): 7 The Proposed Plan of Distribution is attached to this notice as Exhibit A, and can also be found at Pursuant to the terms of the proposed Distribution Plan, the amount that you, as a Class Member, may receive depends upon factors including the number of years that you participated in the NFLPA’s GLA program, which years you participated, and the amount of fees, expenses, and costs approved by the Court. This is the same method of distribution that was ordered by the Court in the Adderley Action. The more years that a Class Member had a GLA in effect during the relevant time period, the more that the Class Member would receive under the proposed settlement and Distribution Plan. For example, the maximum amount a Class Member may receive under the Distribution Plan is approximately $1,785, assuming that the Class Member had a GLA in effect for each of the years 2003, 2004, 2005, and 2006 and the Court approves the proposed settlement and the award of attorneys fees and costs requested by Class Counsel. The minimum amount a Class Member may receive under the Distribution Plan is approximately $258, assuming that the Class Member had a GLA in effect only for 2003. The distribution will take place after the: (1) final approval of the settlement by the Court and the expiration of any period for further review or appeal of the Court’s order of approval or the resolution of any such review or appeal; and (2) approval by the Court of the Claims Administrator’s recommendations as to the amounts to be paid to Class members. 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 5. 23 Class members may object to any part of any settlement. All objections must be made in 24 writing and mailed to the address stated in the notice. The objections must be postmarked on or 25 before 11:59 P.M. ON APRIL 15, 2013. Class members who mail in written objections will also 26 have an opportunity to speak at the fairness hearing and raise their objection. If the parties seek 27 to file responses to any objections received, they must do so by APRIL 29, 2013. Deadline to Object. 28 5 1 6. Deadline to Opt-Out. 2 Class members who wish to exclude themselves from the settlement must do so in writing 3 by submitting a signed and dated opt-out request to the address set forth in the notice. The 4 opt-out statement must be postmarked on or before 11:59 P.M. ON APRIL 15, 2013. 5 7. Motion for Attorney’s Fees and Motion for Final Approval. 6 Counsel must file their motion for attorney’s fees and costs by MARCH 1, 2013. A copy 7 of the motion and exhibits should be made available on the 8 website. The motion for attorney’s fees will be heard at 3:00 P.M. ON MAY 30, the same day as 9 the final fairness hearing. The motion for final approval of the settlement must be filed by MAY 6, 2013. 11 For the Northern District of California United States District Court 10 12 13 IT IS SO ORDERED. 14 15 Dated: January 31, 2013. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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