1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 DYLAN EACRET, et al., Case No. 18-cv-04374-JST (RMI)
9 Plaintiffs, ORDER 10 v. Re: Dkt. Nos. 76, 80 11 CRUNCH, LLC, 12 Defendant.
13 14 On January 29, 2021, in contravention of the relevant provision of the undersigned’s 15 General Standing Order, Plaintiffs unilaterally filed a discovery dispute letter brief (dkt. 76) rather 16 than filing a request for a telephone conference. See Gen. Standing Order ¶ 13(b). In light of 17 Plaintiffs’ failure to adhere to the strictures of that General Standing Order, the court ordered the 18 parties to meet and confer forthwith, and then to jointly file a conforming letter brief. See Order of 19 January 31, 2021 (dkt. 77). Thereafter, on February 5, 2021, the parties jointly filed their letter 20 brief, through which Plaintiffs now seek to compel Defendant to immediately send contact 21 information for putative class members to a third party administrator such that appropriate notices 22 can be mailed to those class members pursuant to Belaire-West Landscape, Inc. v. Superior Court, 23 149 Cal. App. 4th 554, 57 Cal. Rptr. 3d 197 (2007). See Ltr. Br. (dkt. 80) at 1-3. Defendant 24 opposes on grounds that all of the class action and representative action claims in this lawsuit have 25 been settled in a related case (Fox, et al. v. Crunch, LLC, et al., Sacramento Superior Court Case 26 No. 34-2020-00276101) (settlement was preliminarily approved on January 28, 2021) and that 27 allowing discovery to continue in this case would not only be duplicative, unnecessary, and 1 who would be receiving notices of a class action settlement in Fox while receiving conflicting 2 Belaiare-West notices in this case. See Ltr. Br. (dkt. 80) at 3-4. Further, Defendant points out that 3 Plaintiffs have been granted leave to intervene in the Fox case (see id. at 3); and, in light of the 4 settlement in Fox, which Plaintiffs admit would operate to dispose of the claims and parties in this 5 case as well, Defendant has filed a motion to stay these proceedings, which is currently pending 6 before Judge Tigar. See Def.’s Mot. (dkt. 78). For the reasons stated below, Plaintiffs’ request to 7 compel Defendant to immediately tender class members’ contact information to the administrator 8 for sending of Belair-West notices is DENIED, and the undersigned herewith STAYS the prior 9 discovery order to that effect (dkt. 66) until after the resolution of the motion to stay the case. 10 Several months ago, the court ordered the parties to comply with the Belaire-West notice 11 procedure in this case because Plaintiffs sought telephone numbers, as well as other outlets of 12 contact information, for putative class members under circumstances attended with a heightened 13 risk of an invasion of those persons’ privacy due to the likelihood of “a bombardment of phone 14 calls, letters, and emails from various plaintiffs’ counsel . . . in reference to various lawsuits 15 against Crunch.” See Ltr. Br. of October 26, 2020 (dkt. 4) at 3-4. It was Plaintiffs’ position that a 16 Belaire-West notice procedure was unnecessary because of Plaintiffs’ incorrect suggestion to the 17 effect that “[t]he predominant practice among courts in the Northern District is to allow pre- 18 certification discovery of putative class members (sic) contact information without requiring a 19 Belaire-West Notice.” Id. at 1. For this proposition, Defendant cited to Austin v. Foodliner, Inc., 20 No. 16-cv-07185-HSG (DMR), 2018 U.S. Dist. LEXIS 36685, at *8 (N.D. Cal. Mar. 6, 2018) 21 (“Accordingly, the court finds that a protective order will adequately address the privacy concerns 22 of the putative class members by limiting the distribution and usage of the contact information. A 23 Belaire-West notice is unnecessary under these circumstances.”). However, in this case, the 24 undersigned found that there were special privacy concerns involved due to the pendency of 25 multiple overlapping lawsuits that might give rise to an appreciable likelihood of class members 26 being bombarded by phone calls, letters, and emails from various Plaintiffs’ attorneys – and, as a 27 result of these ‘special’ privacy concerns, the undersigned was not persuaded by Plaintiffs’ 1 Sallie Mae, Inc., No. C 10-03602 LB, 2012 U.S. Dist. LEXIS 76451, 2012 WL 830434, at *3 2 (N.D. Cal. June 1, 2012) (ordering a Belaire-West notice given the “special privacy concerns 3 [involved] because the class members had defaulted on their loans.”). Primarily for this reason, but 4 also based on the fact that Plaintiffs also sought contact information for putative class members 5 tethered to their wage data such as overtime pay (see Ltr. Br. of October 26, 2020 (dkt. 63) at 1), 6 on October 30, 2021, the undersigned entered an order directing the use of a Belaire-West notice 7 process for the putative class members. See Order of October 30, 2020 (dkt. 66) at 1. 8 From that point forward, Plaintiffs chose to take two courses of action that were puzzling. 9 While Plaintiff elected to neither seek reconsideration from the undersigned, nor review of that 10 order before Judge Tigar, Plaintiffs have subsequently used every opportunity since the entry of 11 that order to characterize it as error. For example, in Plaintiffs’ unilaterally-filed and non- 12 compliant discovery Letter Brief of January 29, 2021 (dkt. 76), without making any reference to 13 the special privacy concerns that animated the court’s decision to impose the Belaire-West notice 14 procedure in this case, Plaintiffs again parroted the unhelpful and unpersuasive statement that 15 “Plaintiff (sic) reminded the court that the predominant practice among courts in the Northern 16 District is to allow pre-certification discovery of putative class members (sic) contact information 17 without requiring a Belaire-West Noice.” See Ltr. Br. of January 29, 2021 (dkt. 76) at 2 (emphasis 18 in original) (once again citing Austin v. Foodliner, Inc., 2018 U.S. Dist. LEXIS 36685, at *8 (N.D. 19 Cal. Mar. 6, 2018)). More recently, on February 18, 2021, in an opposition to Defendant’s motion 20 to stay this case, Plaintiffs repeated their displeasure with the Belaire-West ruling as such: 21 “Further, the magistrate judge in this case erroneously allowed Defendant to stall production until 22 a Belaire-West Notice is produced despite the majority of courts in the Norther (sic) District 23 stating that a Belaire-West notice is not required.” See Pl.’s Opp. (dkt. 82) at 2. 24 It should not go without mention that, in foreshadowing the real concern fueling Plaintiffs’ 25 agitation and the rush to push this case forward at any cost when all involved (including Plaintiffs’ 26 counsel) agree that the Fox settlement extends to the class and representative claims in this case, 27 Plaintiffs’ unilaterally-filed letter brief ended with a short, but candid, discussion about counsel’s 1 endangered to some degree if the settlement in Fox were to become the subject of a final approval 2 while this matter remains pending. See Ltr. Br. of January 29, 2021 (dkt. 76) at 3. Indeed, 3 Plaintiffs’ counsel reiterated these concerns during the hearing on this dispute that took place on 4 February 23, 2021. 5 Defendant established that the prejudice and harm associated with rushing out the Belaire- 6 West notices in this case now (in addition to the unnecessary and burdensome facet of doing so) 7 would be the wholesale confusion that would result from putative class members receiving dueling 8 notices that tend to contradict one another – that is, the notices of class action settlement that they 9 will receive forthwith in Fox would tend to be contradicted by the Belaire-West notices from this 10 case.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 DYLAN EACRET, et al., Case No. 18-cv-04374-JST (RMI)
9 Plaintiffs, ORDER 10 v. Re: Dkt. Nos. 76, 80 11 CRUNCH, LLC, 12 Defendant.
13 14 On January 29, 2021, in contravention of the relevant provision of the undersigned’s 15 General Standing Order, Plaintiffs unilaterally filed a discovery dispute letter brief (dkt. 76) rather 16 than filing a request for a telephone conference. See Gen. Standing Order ¶ 13(b). In light of 17 Plaintiffs’ failure to adhere to the strictures of that General Standing Order, the court ordered the 18 parties to meet and confer forthwith, and then to jointly file a conforming letter brief. See Order of 19 January 31, 2021 (dkt. 77). Thereafter, on February 5, 2021, the parties jointly filed their letter 20 brief, through which Plaintiffs now seek to compel Defendant to immediately send contact 21 information for putative class members to a third party administrator such that appropriate notices 22 can be mailed to those class members pursuant to Belaire-West Landscape, Inc. v. Superior Court, 23 149 Cal. App. 4th 554, 57 Cal. Rptr. 3d 197 (2007). See Ltr. Br. (dkt. 80) at 1-3. Defendant 24 opposes on grounds that all of the class action and representative action claims in this lawsuit have 25 been settled in a related case (Fox, et al. v. Crunch, LLC, et al., Sacramento Superior Court Case 26 No. 34-2020-00276101) (settlement was preliminarily approved on January 28, 2021) and that 27 allowing discovery to continue in this case would not only be duplicative, unnecessary, and 1 who would be receiving notices of a class action settlement in Fox while receiving conflicting 2 Belaiare-West notices in this case. See Ltr. Br. (dkt. 80) at 3-4. Further, Defendant points out that 3 Plaintiffs have been granted leave to intervene in the Fox case (see id. at 3); and, in light of the 4 settlement in Fox, which Plaintiffs admit would operate to dispose of the claims and parties in this 5 case as well, Defendant has filed a motion to stay these proceedings, which is currently pending 6 before Judge Tigar. See Def.’s Mot. (dkt. 78). For the reasons stated below, Plaintiffs’ request to 7 compel Defendant to immediately tender class members’ contact information to the administrator 8 for sending of Belair-West notices is DENIED, and the undersigned herewith STAYS the prior 9 discovery order to that effect (dkt. 66) until after the resolution of the motion to stay the case. 10 Several months ago, the court ordered the parties to comply with the Belaire-West notice 11 procedure in this case because Plaintiffs sought telephone numbers, as well as other outlets of 12 contact information, for putative class members under circumstances attended with a heightened 13 risk of an invasion of those persons’ privacy due to the likelihood of “a bombardment of phone 14 calls, letters, and emails from various plaintiffs’ counsel . . . in reference to various lawsuits 15 against Crunch.” See Ltr. Br. of October 26, 2020 (dkt. 4) at 3-4. It was Plaintiffs’ position that a 16 Belaire-West notice procedure was unnecessary because of Plaintiffs’ incorrect suggestion to the 17 effect that “[t]he predominant practice among courts in the Northern District is to allow pre- 18 certification discovery of putative class members (sic) contact information without requiring a 19 Belaire-West Notice.” Id. at 1. For this proposition, Defendant cited to Austin v. Foodliner, Inc., 20 No. 16-cv-07185-HSG (DMR), 2018 U.S. Dist. LEXIS 36685, at *8 (N.D. Cal. Mar. 6, 2018) 21 (“Accordingly, the court finds that a protective order will adequately address the privacy concerns 22 of the putative class members by limiting the distribution and usage of the contact information. A 23 Belaire-West notice is unnecessary under these circumstances.”). However, in this case, the 24 undersigned found that there were special privacy concerns involved due to the pendency of 25 multiple overlapping lawsuits that might give rise to an appreciable likelihood of class members 26 being bombarded by phone calls, letters, and emails from various Plaintiffs’ attorneys – and, as a 27 result of these ‘special’ privacy concerns, the undersigned was not persuaded by Plaintiffs’ 1 Sallie Mae, Inc., No. C 10-03602 LB, 2012 U.S. Dist. LEXIS 76451, 2012 WL 830434, at *3 2 (N.D. Cal. June 1, 2012) (ordering a Belaire-West notice given the “special privacy concerns 3 [involved] because the class members had defaulted on their loans.”). Primarily for this reason, but 4 also based on the fact that Plaintiffs also sought contact information for putative class members 5 tethered to their wage data such as overtime pay (see Ltr. Br. of October 26, 2020 (dkt. 63) at 1), 6 on October 30, 2021, the undersigned entered an order directing the use of a Belaire-West notice 7 process for the putative class members. See Order of October 30, 2020 (dkt. 66) at 1. 8 From that point forward, Plaintiffs chose to take two courses of action that were puzzling. 9 While Plaintiff elected to neither seek reconsideration from the undersigned, nor review of that 10 order before Judge Tigar, Plaintiffs have subsequently used every opportunity since the entry of 11 that order to characterize it as error. For example, in Plaintiffs’ unilaterally-filed and non- 12 compliant discovery Letter Brief of January 29, 2021 (dkt. 76), without making any reference to 13 the special privacy concerns that animated the court’s decision to impose the Belaire-West notice 14 procedure in this case, Plaintiffs again parroted the unhelpful and unpersuasive statement that 15 “Plaintiff (sic) reminded the court that the predominant practice among courts in the Northern 16 District is to allow pre-certification discovery of putative class members (sic) contact information 17 without requiring a Belaire-West Noice.” See Ltr. Br. of January 29, 2021 (dkt. 76) at 2 (emphasis 18 in original) (once again citing Austin v. Foodliner, Inc., 2018 U.S. Dist. LEXIS 36685, at *8 (N.D. 19 Cal. Mar. 6, 2018)). More recently, on February 18, 2021, in an opposition to Defendant’s motion 20 to stay this case, Plaintiffs repeated their displeasure with the Belaire-West ruling as such: 21 “Further, the magistrate judge in this case erroneously allowed Defendant to stall production until 22 a Belaire-West Notice is produced despite the majority of courts in the Norther (sic) District 23 stating that a Belaire-West notice is not required.” See Pl.’s Opp. (dkt. 82) at 2. 24 It should not go without mention that, in foreshadowing the real concern fueling Plaintiffs’ 25 agitation and the rush to push this case forward at any cost when all involved (including Plaintiffs’ 26 counsel) agree that the Fox settlement extends to the class and representative claims in this case, 27 Plaintiffs’ unilaterally-filed letter brief ended with a short, but candid, discussion about counsel’s 1 endangered to some degree if the settlement in Fox were to become the subject of a final approval 2 while this matter remains pending. See Ltr. Br. of January 29, 2021 (dkt. 76) at 3. Indeed, 3 Plaintiffs’ counsel reiterated these concerns during the hearing on this dispute that took place on 4 February 23, 2021. 5 Defendant established that the prejudice and harm associated with rushing out the Belaire- 6 West notices in this case now (in addition to the unnecessary and burdensome facet of doing so) 7 would be the wholesale confusion that would result from putative class members receiving dueling 8 notices that tend to contradict one another – that is, the notices of class action settlement that they 9 will receive forthwith in Fox would tend to be contradicted by the Belaire-West notices from this 10 case. As a result, at the hearing, the undersigned indicated that the better course of action would be 11 for the court to stay its prior discovery order approving the Belaire-West notice process until after 12 Judge Tigar’s resolution of the currently pending motion to stay the proceedings in this case. 13 Having made such a suggestion, the court then sought input from Plaintiffs’ counsel as to what 14 might be the harm or prejudice to Plaintiffs if discovery was paused pending resolution of the 15 motion to stay. Plaintiffs’ counsel candidly responded that within that span of time the case may 16 come to an end if the settlement in Fox were to become the subject of a final approval. While the 17 court appreciates Plaintiffs’ counsel’s frustration that even though this case was filed earlier, Fox 18 seems to have proceeded towards resolution more quickly; nevertheless, be that as it may, 19 counsel’s desire to rush this case forward in an effort to secure attorneys’ fees here is hardly a 20 suitable justification for the confusion that would assuredly flow from putative class members 21 receiving a notice of class action settlement in Fox at or near the same time as receiving Belaire- 22 West notices in this case informing them of a “new” class action case covering the same claims 23 and the same class and giving them the choice of opting out. 24 // 25 // 26 // 27 // 1 CONCLUSION 2 Accordingly, Plaintiffs’ request for the court to compel Defendant to send the list of 3 contact information for putative class members to the Belaire-West notice administrator within 2 4 || days is DENIED. For the reasons discussed above, the undersigned herewith STAYS the pertinent 5 portion of the prior discovery order to that effect (dkt. 66) until after the resolution of Defendant’s 6 || motion to stay the proceedings in this case (dkt. 78) currently pending before Judge Tigar. 7 IT IS SO ORDERED. 8 || Dated: February 24, 2021 9 10 ROBERT M. ILLMAN I United States Magistrate Judge ag 12
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