C.F.C., a minor, by and through Christine F., his parent and guardian v. Power Balance, LLC

Filing 14

STIPULATION AND ORDER EXTENDING TIME re 13 Stipulation filed by Power Balance, LLC. Signed by Judge Edward M. Chen on 4/22/11. (bpfS, COURT STAFF) (Filed on 4/22/2011)

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EAGAN AVENATTI, LLP
Michael Q. Eagan, Bar No. 63479
Michael J. Avenatti, Bar No. 206929
450 Newport Center Drive, Second Floor
Newport Beach, CA 92660
Tel: [phone]
Fax: [phone]

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Attorneys for Defendant

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LEXINGTON LAW GROUP
Mark N. Todzo (State Bar No. 168389)
Howard Hirsch (State Bar No. 213209)
1627 Irving Street
San Francisco, CA 94122
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Christopher M. Burke (State Bar No. 214799)
SCOTT + SCOTT LLP
600 B Street, Suite 1500
San Diego, CA 92101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Plaintiff
C.F.C., a minor, by and through
Christine F., his parent and guardian

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA – SAN FRANCISCO DIVISION
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C.F.C., minor, by and through CHRISTINE F., his Case No. 11-cv-0487-EMC
parent and guardian, on behalf of himself and all
others similarly situated,

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Plaintiff,

CLASS ACTION

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vs.

SECOND JOINT STIPULATION TO
EXTEND TIME ; ORDER

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POWER BALANCE LLC, a Delaware Limited
Liability Company,

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Defendant.
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Complaint Filed:
Trial Date:

February, 1 2011
None set

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SECOND JOINT STIPULATION TO EXTEND TIME

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SECOND JOINT STIPULATION TO EXTEND DEADLINE TO ANSWER OR RESPOND
C.F.C., minor, by and through Christine F., his parent and guardian, (“Plaintiff”) and Power
Balance LLC (“Defendant”) stipulate as follows:

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WHEREAS, there are presently approximately twenty-one (21) separate actions pending in

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federal district courts in California, and elsewhere, raising similar claims regarding the marketing and

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sale of Power Balance products (“Power Balance Actions”).

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WHEREAS, on February 24, 2011 (Doc. No. 6), the parties previously agreed to stipulate to

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extend Defendant’s deadline to respond to the Complaint by motion or otherwise until fourteen (14)

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days after the Judicial Panel on Multidistrict Litigation’s (“JPML”) ruling on the motions to transfer

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and consolidate filed before the JPML.

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WHEREAS, on March 25, 2011, plaintiff Andre Batungbacal filed a Motion for Preliminary

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Approval of the nationwide class settlement reached between the plaintiff and Power Balance in the

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putative class action Batungbacal v. Power Balance LLC, No. SACV11-00018 (C.D. Cal. 2011)

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(“Batungbacal Action”). The Batungbacal Action is the first-filed of the Power Balance Actions and

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is pending before Judge Cormac J. Carney in the Central District of California.

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WHEREAS, the hearing on the Motion for Preliminary Approval is set currently for hearing
on April 25, 2011 before Judge Carney.

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WHEREAS, on April 8, 2011, the JPML issued a ruling denying the pending motions to

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transfer in part because of the pending settlement in the Batungbacal Action. In so doing, the JPML

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wrote that “[i]f Judge Carney preliminarily approves the settlement, these cases are likely on the path

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to resolution” and “[c]entralization at this time could delay the Batungbacal proceedings as well as

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entail additional expenses for the litigants and the courts to establish an MDL proceeding with little

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benefit.” A copy of the JPML’s April 8 ruling is attached to this stipulation.
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SECOND JOINT STIPULATION TO EXTEND TIME

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WHEREAS, the allegations and claims made in the Batungbacal Action are similar to certain

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allegations in this action and it is Defendant’s position that, if final approval of the settlement in the

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Batungbacal Action is granted, it will release and have preclusive effect over the putative class’

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allegations and claims in this action.

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WHEREAS, pursuant to the parties’ stipulation, Plaintiff has been granted leave to intervene
in the Batungbacal Action in order to be heard regarding the proposed settlement.

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WHEREAS, Defendant has not yet filed a responsive pleading, but in consideration of the

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foregoing and in the interest of judicial economy and the convenience of the parties, Plaintiff and

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Defendant have agreed to extend Defendant’s deadline to file a response to the Complaint in this

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action, by answer or motion, until fifteen (15) court days after the Court’s ruling on the motion for

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preliminary approval in the Batungbacal Action.

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Accordingly, it is hereby stipulated and agreed that Defendant shall have until fifteen (15)

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court days after the Court’s ruling on the motion for preliminary approval in the Batungbacal Action

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to file an answer or respond to the Complaint in this action by motion or otherwise. This stipulation is

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made without prejudice to seek further additional time or other relief if necessary.

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Dated: April 18, 2011

EAGAN AVENATTI, LLP

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By:
IT IS SO ORDERED:

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S DISTRICT
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C
A
________________T

LEXINGTON LAW GROUP

R NIA

By:

RT

d
Judge E

FO

. Chen

ward M

NO

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IT

LI

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Edward M. Chen
ED
U.S. Magistrate JudgeIS SO ORDER

/s/ Mark Todzo
Mark Todzo
Attorneys for Plaintiff
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H

E R SECOND JOINT STIPULATION TO EXTEND THE TIME
C
N
OF
D
A

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UNIT
ED

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RT
U
O

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/s/ Michael J. Avenatti
Michael J. Avenatti
Attorneys for Defendants