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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 TAMMIE DAVIS, an individual, on behalf of herself and all others similarly situated, No. C 11-01826 JSW 10 11 v. For the Northern District of California United States District Court Plaintiff, ORDER DENYING MOTION TO DISMISS 12 13 COLE HAAN, INC., and DOES 1 through 50, inclusive, 14 Defendants. / 15 16 17 STEPHANIE CONCEPCION, an individual, on behalf of herself and all others similarly situated, 18 19 20 No. C 11-02187 JSW Plaintiff, ORDER DENYING MOTION TO DISMISS v. COLE HAAN, INC., and DOES 1 through 50, inclusive, 21 Defendants. 22 / 23 24 Now before the Court are the motions to dismiss filed by defendant Cole Haan, 25 erroneously sued as Cole Haan, Inc. (“Defendant”). The Court determines that these matters are 26 appropriate for disposition without oral argument and are deemed submitted. See Civ. L.R. 7- 27 1(b). Accordingly, the hearing set for September 30, 2011 is HEREBY VACATED. Having 28 carefully reviewed the parties’ papers and considering their arguments and the relevant 1 authority, and good cause appearing, the Court hereby DENIES Defendant’s motions to dismiss 2 for the reasons set forth below. 3 Defendant moves to dismiss the “claims” by plaintiff Tammie Davis and Stephanie 4 Concepcion (“Plaintiffs”) for cy pres recovery. Plaintiffs each bring a cause of action for 5 violation of California Civil Code § 1747.08, the Song-Beverly Credit Card Act of 1971 6 (“Song-Beverly Credit Card Act”). In their prayers for relief, Plaintiffs each seek an award for 7 themselves and the purported class they seek to represent of the civil penalty pursuant to 8 California Civil Code § 1747.08 and “for distribution of any moneys recovered on behalf of the 9 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 11 For the Northern District of California United States District Court 10 that cy pres is considered a form of equitable relief and the Song-Beverly Credit Card Act only 12 authorizes recovery of statutory damages by private plaintiffs. 13 In Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1307 (9th Cir. 14 1990), the Ninth Circuit held that cy pres or a fluid recovery may be considered by courts to 15 distribute unclaimed funds after a valid judgment for statutory damages has been entered 16 against a defendant. The court merely rejected the district court’s specific application of cy pres 17 because the proposed distribution of funds was to a group too remote from the plaintiff class 18 and there was no reasonable certainty that any class member would have benefitted. Id. at 19 1308.1 20 The Court need not determine at this time whether distribution of any unclaimed 21 statutory damages to the purported class through cy pres would be appropriate. The issue of cy 22 pres distribution is premature until a class is certified, damages are awarded, and there are 23 funds that remain unclaimed. See Rodriguez v. West Publ’g Corp., 563 F.3d 948, 966 (9th Cir. 24 2009) (finding cy pres distribution “becomes ripe only if entire settlement fund is not 25 26 27 28 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. 1 2 1 distributed to class members” and declining to determine propriety of cy pres at that time). 2 Accordingly, the Court DENIES Defendant’s motions to dismiss. This Order is without 3 prejudice to Defendant challenging the use of cy pres distribution if and when this issue 4 becomes ripe. 5 IT IS SO ORDERED. 6 7 Dated: September 27, 2011 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 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 23 24 25 26 27 28 3

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