Embry v. ACER America Corporation

Filing 182

ORDER requesting further revised proposed order. Signed by Judge James Ware on September 9, 2011. (jwlc2, COURT STAFF) (Filed on 9/9/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION
NO. C 09-01808 JW

Kevin Embry,

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ORDER REQUESTING FURTHER
REVISED PROPOSED ORDER FOR
JOINT MOTION FOR PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT

Plaintiff,
v.

For the Northern District of California

United States District Court

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ACER America Corp.,
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Defendant.
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/
On September 7, 2011, the Court ordered the parties in this case to file a revised Proposed

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Order for Preliminary Approval of Class Action Settlement “which shall include the name of the

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settlement administrator,” as the Court found that the parties had failed to propose a settlement claim

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administrator in their Joint Motion for Preliminary Approval of Class Action Settlement and its

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supporting papers. (See Docket Item No. 178.) On September 8, 2011, Plaintiff filed a

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Supplemental Memorandum contending that the Settlement Agreement provides that “Claim

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Administrator” means “Defendant or a qualified third-party,” and that the parties “have

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subsequently confirmed that [Defendant] itself will be acting as Claim Administrator.”1 On

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September 8, 2011, the parties also filed a Revised Proposed Order. (hereafter, “Revised Proposed

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(Supplemental Memorandum of Points and Authorities in Support of Motion for
Preliminary Approval of Class Action Settlement at 1, Docket Item No. 179.) The parties contend
that Defendant is “well-placed to serve as claim administrator,” as it has done so in a prior “federal
class action settlement.” (Id.)

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Order,” Docket Item No. 180.) The Revised Proposed Order does not provide a date for the Final

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Fairness Hearing.2

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Upon review, the Court finds that Defendant is not a suitable claim administrator because

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there is a potential conflict of interest. Accordingly, on or before September 12, 2011, at 8 a.m.,

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the parties shall file a further revised Proposed Order for Preliminary Approval of Class Action

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Settlement which shall include the name of a qualified third-party claim administrator.3 The revised

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Proposed Order shall also provide a date for the Final Fairness Hearing which comports with the

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Court’s calendar, as well as other proposed dates which shall allow sufficient time, inter alia, for

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class members to exclude themselves from the settlement class or object to the settlement and any
proposed attorney fees.

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For the Northern District of California

United States District Court

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To the extent that the parties are unable to obtain a third-party claim administrator by

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September 12, 2011, the parties may file a Stipulation to continue the hearing on Preliminary

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Approval to September 19, 2011, so as to provide the parties with sufficient time to file a Revised

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Proposed Order consistent with the terms of this Order.

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Dated: September 9, 2011
JAMES WARE
United States District Chief Judge

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However, it states that a “Final Approval Hearing” shall be held “at least seventy-five (75)
days after the emailing of the Class Notice.” (Revised Proposed Order at 2.)
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In light of the fact that the hearing on the Joint Motion for Preliminary Approval of Class
Action Settlement is scheduled for September 12, 2011 at 9 a.m., it is imperative that the revised
Proposed Order be filed by this deadline.
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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO:

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Adam Gutride [e-mail]
Adam Joseph Bedel [e-mail]
Jeffery David McFarland [e-mail]
Seth Adam Safier [e-mail]
Stan Karas [e-mail]
Todd Michael Kennedy [e-mail]

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Dated: September 9, 2011

Richard W. Wieking, Clerk

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By:
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For the Northern District of California

United States District Court

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/s/ JW Chambers
Susan Imbriani
Courtroom Deputy