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White v. Experian Solutions Information Inc.

June 9, 2009


The opinion of the court was delivered by: David O. Carter United States District Judge

and Related actions


Before the Court is Plaintiffs Robert Radcliffe; Chester Carter; Maria Falcon; Clifton C. Seale, III; and Arnold E. Lovell's ("Objecting Plaintiffs") Motion for Reconsideration and to Vacate Orders Appointing Class Counsel and Conditionally Certifying Settlement Class (the "Motion"). The Court finds the Motion appropriate for decision without oral argument. Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set June 15, 2009 is removed from the Court's calendar. After considering the moving, opposing, and replying papers, the Court hereby DENIES the Motion.


These related cases involve class claims brought against consumer credit reporting agencies based on the procedures by which those agencies produce credit reports for individuals with debts discharged through Chapter 7 bankruptcy proceedings. On August 19, 2008, a settlement agreement between the parties as to Plaintiffs' claims for injunctive relief was approved (the "Settlement Agreement"). On March 9, 2009, the parties submitted a Stipulation and Proposed Order Establishing Schedule for Settlement, stating that, following a court-ordered mediation on February 5, 2009, the parties in the related cases were able to reach a settlement as to the damages claims in addition to the claims for injunctive relief. On April 24, 2009, attorneys for Plaintiffs filed a Motion for Preliminary Approval of Proposed Class Action Settlement, Conditional Certification of the Settlement Class, Approval of Class Notice, and Appointment of Class Counsel, which was granted by this Court on May 7, 2009. On May 21, 2009 objecting Plaintiffs filed the instant Motion, arguing that the May 7, 2009 Order be vacated under Fed. R. Civ. P. 23(c) and (d), Local Rule 7.18, and the Court's inherent power, as counsel for settling plaintiffs -- Lieff Cabraser Heimann & Bernstein, LLP, the National Consumer Law Center ("NCLC"), Caddell & Chapman, P.C., Mitchell Toups, and Leonard Bennett ("Counsel for Settling Plaintiffs") -- engaged in misconduct that disqualifies them from representing the class.


Federal Rule of Civil Procedure 60(b) "provides for reconsideration only upon a showing of (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) 'extraordinary circumstances' which would justify relief." School Dist. No. 1J, Multnomah County v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (quoting Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991)).

These grounds are further limited by the Local Rules. Local Rule 7-18 provides that a motion for reconsideration of a decision on any motion may be made only on the following grounds: "(a) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or (b) the emergence of new material facts or a change of law occurring after the time of such decision, or (c) a manifest showing of a failure to consider material facts presented to the Court before such decision." L.R. 7-18. Finally, the Local Rule states that "[n]o motion for reconsideration shall in any manner repeat any oral or written argument made in support of or in opposition to the original motion." Id.


Objecting Plaintiffs allege that the following eight independent acts of misconduct "automatically disqualif[y]" Counsel for Settling Plaintiffs from representing the class in the related cases:

* Lieff Cabraser Heimann & Bernstein, LLP ("Lief") and NCLC, both attorneys of record for the White Plaintiffs, disregarded the White Plaintiffs' five written instructions to stop negotiating and supporting the settlement or to withdraw.

* The Settling Plaintiff's Counsel advised the White Plaintiffs that the settlement was incomplete and was still being negotiated and instructed them not to oppose it until all the Settling Plaintiffs' counsel had consulted with them.

* The Settling Plaintiff's Counsel then failed to consult with any of the White Plaintiffs until April 16 -- one week before the settlement was filed and over two months after the February 5 mediation -- and never consulted with three of them.

* When they finally consulted with two of the White Plaintiffs, the Caddell team improperly instructed one of them that he would be eligible for $5000 in incentive payments only if he supported the settlement; and, in fact, the settlement makes incentive ...

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