Schmidt v. Vision Service Plan

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA MICHAEL SCHMIDT, on behalf of Case No. 2:20-cv-2400-CSK himself and the Class and Collective members, 13 Plaintiffs, ORDER 14 v. VISION SERVICE PLAN, et al., 16 Defendants.

18 The Court has received and reviewed Plaintiff Michael Schmidt’s proposed briefing schedule and request for a status conference (ECF No. 80), which has not been opposed by Defendants Vision Service Plan, VSP Global Inc., Marchon Eyewear, Inc., VSP Optical Group, Inc., and Eyefinity, Inc. (collectively “Defendants”).

22 Plaintiff proposes submitting a renewed motion for final approval of the revised settlement agreement substituting the cy pres beneficiary with a new cy pres beneficiary without issuing supplemental notice to the class because the substitution of the cy pres beneficiary is a minor change to the agreement that “does not prejudice any class member or impair any class members’ rights, and has no material adverse effect on class members’ rights.” (ECF No. 80 at ¶ 6; see id. at ¶¶ 3-7.) The Court agrees with Plaintiff’s proposal as set forth below.

1 The Court agrees that the substitution of the cy pres beneficiary to identify a new beneficiary that has a sufficient nexus to the lawsuit and the interest of the class members is a de minimis change that does not require issuing supplemental or new notice to the class.1 See In re Groupon Marketing and Sales Practices Litigation, 593 5 Fed. Appx. 699, 701 (9th Cir. 2015) (new notice to class was not required for de minimis changes made to the settlement agreement). The Court previously determined that the original cy pres beneficiary, the Monarch School, a non-profit organization that cares for homeless children, was not an appropriate beneficiary because it does not have any ties to the lawsuit or the interests of the class members, and Plaintiff did not assert any such ties. July 29, 2024 Order at 1-3 (citing Dennis v. Kellogg Co., 697 F.3d 858, 865 (9th Cir. 2012); Koby v. ARS Nat'l Servs., Inc., 846 F.3d 1071, 1080 (9th Cir. 2017)) (ECF No. 79).

13 Therefore, Plaintiff may submit a renewed motion for final approval of the revised settlement agreement substituting the cy pres beneficiary without issuing a new or supplemental notice to the class. Plaintiff is ordered to post on the settlement website the revised settlement agreement identifying the new cy pres beneficiary and the new time and date for the final approval hearing, once re-scheduled. Plaintiff must submit a declaration confirming compliance with this order with Plaintiff’s renewed motion for final approval. Plaintiff may also submit a renewed motion for attorney’s fees, costs, and service award. The Court therefore withdraws the portion of its July 29, 2024 Order requiring Plaintiff to submit a renewed motion for preliminary approval of the revised settlement agreement.

23 In addition, Plaintiff’s renewed motion for final approval of the class and collective action settlement must be complete in itself without relying on prior filings. The parties are reminded to present fulsome information to the Court to enable the Court to make a determination as to whether the new proposed cy pres beneficiary is appropriate. In any The Court is not making a final determination as to whether the new proposed cy pres beneficiary is an appropriate one.

1 renewed motion, as the Court previously ordered, the parties are reminded that they must adequately address indicia of collusion, sufficiently developing the record to enable the Court to determine whether approval is appropriate, and sufficiently justify Plaintiff’s request for attorney fees, especially if the requested fees exceed the 25% benchmark.

5 See 1/26/2024 Order at 15-18, 21 (ECF No. 59); 7/11/2024 Minute Order (ECF No. 74); In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942, 946-47 (9th Cir. 2011); Kim v. Allison, 8 F.4th 1170, 1180 (9th Cir. 2021) (where indicia of collusion are present, the district court must examine them and develop the record).

9 The Court will permit the parties to submit a proposed schedule for filing a renewed motion for final approval of the revised settlement agreement; a renewed motion for attorney’s fees, costs, and service award; and for the final approval hearing.

12 Within 7 days of this Order, the parties may submit a proposed schedule. If the parties do not submit a proposed schedule within 7 days of this Order, the Court will set the schedule.

15 Accordingly, IT IS HEREBY ORDERED that: 16 1. Plaintiff may submit a renewed motion for final approval of the revised class and 17 collective action settlement, and a renewed motion for attorney’s fees, costs, and 18 service award; 19 2. Within 7 days of this Order, the parties may submit a proposed schedule for filing 20 a renewed motion for final approval of the revised settlement; a renewed motion 21 for attorney’s fees, costs, and service award; and the final approval hearing; 22 3. Plaintiff must post on the settlement website the revised settlement agreement 23 identifying the new cy pres beneficiary and the new time and date for the final 24 approval hearing; and 25 4. The parties are reminded that any renewed motion must be complete in itself 26 without reference to or reliance on prior filings (i.e., must include all exhibits, 27 supporting documentation, and argument), and must be in compliance with the 28 Local Rules (e.g., L.R. 230 governing motions) and Judge Kim’s Civil Standing 1 Orders.

3 | Dated: September 10, 2024 ~ . S 4 ap WL 5 UNITED STATES MAGISTRATE JUDGE || 4, schm2400.20