Tobin v. Conopco, Inc., et al.

Filing 39

NOTICE OF TENTATIVE RULING AND QUESTIONS FOR HEARING. Signed by Judge Jeffrey S. White on April 15, 2013. (jswlc3, COURT STAFF) (Filed on 4/15/2013)

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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 COLLEN TOBIN, 11 For the Northern District of California United States District Court 10 12 13 Plaintiff, No. C 12-05881 JSW v. NOTICE OF TENTATIVE RULING AND QUESTIONS FOR HEARING CONOPCO INC., et al., Defendants. / 14 15 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE 16 NOTICE OF THE FOLLOWING TENTATIVE RULING AND QUESTIONS FOR THE 17 HEARING SCHEDULED ON APRIL 12, 2013, AT 9:00 A.M.: 18 The Court has reviewed the parties’ memoranda of points and authorities and, thus, does 19 not wish to hear the parties reargue matters addressed in those pleadings. If the parties intend to 20 rely on legal authorities not cited in their briefs, they are ORDERED to notify the Court and 21 opposing counsel of these authorities reasonably in advance of the hearing and to make copies 22 available at the hearing. If the parties submit such additional authorities, they are ORDERED 23 to submit the citations to the authorities only, with pin cites and without argument or additional 24 briefing. Cf. N.D. Civil Local Rule 7-3(d). The parties will be given the opportunity at oral 25 argument to explain their reliance on such authority. The Court suggests that associates or of 26 counsel attorneys who are working on this case be permitted to address some or all of the 27 Court’s questions contained herein. 28 1 The Court tentatively denies the motion for preliminary approval, and tentatively 2 denies the motion to intervene. The Court shall hear argument on the motion for preliminary 3 approval solely from Plaintiff and Defendants. 4 Motion for Preliminary Approval. 5 1. In light of the fact that Judge Hamilton decided not to relate this case with the 6 Astiana case, what is the parties best argument that venue is proper in this 7 district. (See Proposed Final Approval Order at 1:12-13.) 8 2. In their answer, Defendants contend that Plaintiff lacks statutory standing to Affirmative Defense.) How can the Court conclude that Plaintiff’s claims are 11 For the Northern District of California bring her claims under the New Jersey Consumer Fraud Act. (Answer, Fifth 10 United States District Court 9 typical to those of the class in light of this defense? 12 3. The parties state that they will include all claims that were submitted as part of 13 the Astiana settlement. However, given the low response to publication notice, 14 what is the parties best argument that additional publication notice would not be 15 the best notice practicable under the circumstances? 16 3. 17 18 Do the parties have any evidence regarding the efficacy of their proposed Internet notice? 4. The Court disagrees with the parties’ view that there is no cy pres component 19 and the Court does not see the nexus between the proposed charities and the 20 nature of the claims. Although this term may be severable, the Court “cannot 21 delete, modify or substitute certain provisions. The settlement must stand or fall 22 in its entirety.” Dennis v. Kellogg, Co., 697 F.3d 858, 868 (9th Cir. 2012). What 23 is the parties’ best argument that this provision of the settlement shares the 24 requisite nexus with the nature of the claims? 25 5. Why should the Court not view this settlement with greater skepticism given that 26 it substantially reduces the funds available for settlement purposes from the 27 settlement proposed in Astiana, the fees and administrative costs are to be 28 deducted from that fund, Plaintiff intends to seek over 20% of the available 2 1 funds, and the revised settlement offer came shortly on the heels of Judge 2 Hamilton’s decision to deny final approval in Astiana? 3 4 Motion to Intervene 1. If the Court stands by its tentative ruling and denies the motion for preliminary 5 approval, does Ms. Astiana intend to maintain her request to intervene and be 6 appointed interim lead counsel? Why should the Court not view this as an end 7 run around Judge Hamilton’s decision that these cases are not related? 8 2. If the Court ultimately were to approve a settlement or a proposed class in this protected by the fact that she can choose to opt out of the class and pursue her 11 For the Northern District of California case, what is Ms. Astiana’s best argument that her interests are not adequately 10 United States District Court 9 legal claims on an individual basis? 12 13 3. If the Court were to approve the settlement, and Ms. Astiana chose to opt-out, would Defendants argue that the release provisions would be a bar to her claims? 14 15 16 IT IS SO ORDERED. Dated: April 15, 2013 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3

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