Davis v. Cole Haan, Inc.

Filing 33

ORDER by Judge Jeffrey S. White DENYING (21) Motion to Dismiss in case 3:11-cv-01826-JSW; DENYING (16) Motion to Dismiss in case 3:11-cv-02187-JSW. (jswlc3, COURT STAFF) (Filed on 9/27/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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TAMMIE DAVIS, an individual, on behalf of
herself and all others similarly situated,
No. C 11-01826 JSW

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v.
For the Northern District of California

United States District Court

Plaintiff,
ORDER DENYING MOTION TO
DISMISS

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COLE HAAN, INC., and DOES 1 through 50,
inclusive,

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Defendants.
/

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STEPHANIE CONCEPCION, an individual,
on behalf of herself and all others similarly
situated,

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No. C 11-02187 JSW

Plaintiff,
ORDER DENYING MOTION TO
DISMISS

v.
COLE HAAN, INC., and DOES 1 through 50,
inclusive,

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Defendants.
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/

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Now before the Court are the motions to dismiss filed by defendant Cole Haan,

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erroneously sued as Cole Haan, Inc. (“Defendant”). The Court determines that these matters are

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appropriate for disposition without oral argument and are deemed submitted. See Civ. L.R. 7-

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1(b). Accordingly, the hearing set for September 30, 2011 is HEREBY VACATED. Having

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carefully reviewed the parties’ papers and considering their arguments and the relevant

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authority, and good cause appearing, the Court hereby DENIES Defendant’s motions to dismiss

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for the reasons set forth below.

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Defendant moves to dismiss the “claims” by plaintiff Tammie Davis and Stephanie

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Concepcion (“Plaintiffs”) for cy pres recovery. Plaintiffs each bring a cause of action for

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violation of California Civil Code § 1747.08, the Song-Beverly Credit Card Act of 1971

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(“Song-Beverly Credit Card Act”). In their prayers for relief, Plaintiffs each seek an award for

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themselves and the purported class they seek to represent of the civil penalty pursuant to

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California Civil Code § 1747.08 and “for distribution of any moneys recovered on behalf of the

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Class of similarly situated consumers via fluid recovery or cy pres recovery where necessary to
prevent Defendant from retaining the benefits of their wrongful conduct.” Defendant argues

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For the Northern District of California

United States District Court

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that cy pres is considered a form of equitable relief and the Song-Beverly Credit Card Act only

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authorizes recovery of statutory damages by private plaintiffs.

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In Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1307 (9th Cir.

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1990), the Ninth Circuit held that cy pres or a fluid recovery may be considered by courts to

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distribute unclaimed funds after a valid judgment for statutory damages has been entered

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against a defendant. The court merely rejected the district court’s specific application of cy pres

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because the proposed distribution of funds was to a group too remote from the plaintiff class

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and there was no reasonable certainty that any class member would have benefitted. Id. at

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1308.1

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The Court need not determine at this time whether distribution of any unclaimed

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statutory damages to the purported class through cy pres would be appropriate. The issue of cy

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pres distribution is premature until a class is certified, damages are awarded, and there are

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funds that remain unclaimed. See Rodriguez v. West Publ’g Corp., 563 F.3d 948, 966 (9th Cir.

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2009) (finding cy pres distribution “becomes ripe only if entire settlement fund is not

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Defendant relies on Haug v. Petsmart, Inc., 2010 WL 2925096 (E.D. Cal. July 23,
2010). In Haug, the court characterized the plaintiff’s request for cy pres relief as damages,
and as such, struck the plaintiff’s request for “cy pres damages” as unauthorized by the
Song-Beverly Credit Card Act. The Court disagrees that cy pres funds are a form of
damages, and finds instead, that they are a form of distribution of damages. Therefore, the
Court finds the reasoning of Haug unpersuasive.
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distributed to class members” and declining to determine propriety of cy pres at that time).

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Accordingly, the Court DENIES Defendant’s motions to dismiss. This Order is without

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prejudice to Defendant challenging the use of cy pres distribution if and when this issue

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becomes ripe.

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IT IS SO ORDERED.

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Dated: September 27, 2011
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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