STIPULATION AND [PROPOSED]ORDER RE RELIEF FROM FINAL APPROVAL ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; GRANTING IN PART MOTION FOR ATTORNEYS' FEES, COSTS, AND CLASS REPRESANTATIVES' SERVICE PAYMENTS [77] TO EFFECTUATE NOTICE TO ATTORNEYS GENERAL UNDER 28 U.S.C. § 1715
JON S. TIGAR, District Judge.
Plaintiffs AL SMITH and JEFFREY HOURCADE, on behalf of themselves and those similarly situated, and Defendant AMERICAN GREETINGS CORPORATION (collectively "the Parties"), by and through their undersigned attorneys of record, hereby submit the following Stipulation:
WHEREAS, on March 31, 2015, Plaintiffs filed a Motion for Preliminary Approval of Class Settlement [Docket 35; see also 34, 36-38 (supporting papers)];
WHEREAS, on July 23, 2015, the Court filed its Order Granting Preliminary Approval of Class Action Settlement [Docket 56; see also 57 (amended Order to fix typographical error)];
WHEREAS, on October 14, 2015, Plaintiffs filed a Motion for Final Approval of Class Action Settlement [Docket 61; see also 62-73 (supporting papers and motions for attorneys' fees/costs and incentive payment)];
WHEREAS, on January 29, 2016, the Court filed its Order Granting Motion for Final Approval of Class Action Settlement; Granting In Part Motion for Attorneys' Fees, Costs, and Class Representatives' Service Payments ("Final Approval Order") [Docket 77];
WHEREAS, the Final Approval Order granted, inter alia, final approval of the proposed settlement, incentive awards to Plaintiffs Al Smith and Jeffrey Hourcade, attorneys' fees and litigation costs to Plaintiffs' counsel, settlement administration costs, payment to the California LWDA, and Judgment;
WHEREAS, the Court, in the Final Approval Order, expressly retained "continuing jurisdiction over this settlement solely for the purposes of enforcing this agreement, addressing settlement administration matters, and addressing such post-judgment matters as may be appropriate under Court rules and applicable law" [Docket 77, pages 18-19];
WHEREAS, 28 U.S.C. § 1715 requires notice to be given to Appropriate Federal and State Officials of certain specified information pertaining to the settlement of a class action, and further provides that "an order giving final approval of a proposed settlement may not be issued earlier than 90 days after the later of the dates on which the appropriate Federal official and the appropriate State official are served with the notice"; and
WHEREAS, counsel for the stipulating parties are informed and believe that the requirements of 28 U.S.C. § 1715 are applicable to the instant matter and, further, that said notice has not to date been properly provided as a result of mistake, inadvertence, excusable neglect and/or other reasons that justify relief.
NOW THEREFORE, through their respective attorneys of record and pursuant to Federal Rules of Civil Procedure, Rule 60(b)(1) and (6), Plaintiffs and Defendant jointly stipulate and request that the Court:
1. Vacate its January 29, 2016 Order Granting Motion for Final Approval of Class Action Settlement; Granting In Part Motion for Attorneys' Fees, Costs, and Class Representatives' Service Payments [Docket 77].
2. Permit Defendant to promptly comply with the notice requirements of 28 U.S.C. § 1715. See Adoma v. University of Phoenix, 913 F.Supp.2d 964, 972-75 (E.D. Cal. 2012)("even if defendants are late in serving notice to state and federal officials, class members may not exempt themselves from a settlement so long as at least 90 days elapse between service of the notice and entry of an order granting final approval of the settlement, as required by 28 U.S.C § 1715(d)"); see also In re Processed Egg Products Antitrust Litigation, 284 F.R.D. 249, 258 n.12 (E.D. Pa. 2012) ("although notice requirements under CAFA have not been fully met on a technical basis, the substance of the requirements have been satisfied insofar as giving federal and state officials sufficient notice and opportunity to be heard"); Kay Co. v. Equitable Prod. Co., 2010 WL 1734869 at *4, 2010 U.S. Dist. LEXIS 41892 at *14 (S.D.W.Va. 2010).
3. Set a Case Management Conference on a date convenient to the Court on or after May 25, 2016 to address: (i) comments, if any, from the Federal and State Officials who were given notice under 28 U.S.C. § 1715; (ii) issuance of an order granting final approval of the settlement, attorneys' fees, costs, and class representatives' service payments; and (iii) any other matters which may be relevant to this proceeding, final approval of the settlement, compliance with 28 U.S.C. § 1715, and/or other pertinent issues.
[PROPOSED] ORDER
GOOD CAUSE APPEARING THEREFORE, IT IS ORDERED AS FOLLOWS:
1. The Court's January 29, 2016 Order Granting Motion for Final Approval of Class Action Settlement; Granting In Part Motion for Attorneys' Fees, Costs, and Class Representatives' Service Payments [Docket 77] shall be and hereby is vacated.
2. Defendant is ordered to comply with the notice requirements of 28 U.S.C. § 1715(b) on or before February 15, 2016 or within three (3) court days of the date of this Order, whichever is later. A copy of this Stipulation and Order shall be included with the notice materials.
3. A Case Management Conference shall be held on May 25, 2016 [or the first available date thereafter which is more than 100 days after the date of this Order] at 2:00 p.m. to discuss: (i) comments, if any, from the Federal and State Officials who were given notice under 28 U.S.C. § 1715; (ii) issuance of an order granting final approval of the settlement, attorneys' fees, costs, and class representatives' service payments; and (iii) any other matters which may be relevant to this proceeding, final approval of the settlement, compliance with 28 U.S.C. § 1715, and/or other pertinent issues.
4. No notice to the Settlement Class of this Order or the Case Management Conference shall be required.
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