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IL Fornaio Corporation v. Lazzari Fuel Company, LLC

United States District Court, N.D. California

May 20, 2015

IL FORNAIO (AMERICA) CORPORATION, OLIVETO PARTNERS, LTD. and THE FAMOUS ENTERPRISE FISH COMPANY OF SANTA MONICA, INC., on behalf of themselves and all others similarly situated, Plaintiffs,
v.
LAZZARI FUEL COMPANY, LLC, CALIFORNIA CHARCOAL AND FIREWOOD, INC., CHEF'S CHOICE MESQUITE CHARCOAL, RICHARD MORGEN, ROBERT COLBERT, MARVIN RING, and WILLIAM W. LORD, Defendants.

ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT AND AWARDING FEES AND EXPENSES

WILLIAM ALSUP, District Judge.

INTRODUCTION

In this civil antitrust class action involving direct purchasers of mesquite lump charcoal, plaintiffs move for final approval of a class settlement and class counsel move for attorney's fees and expenses. For the reasons stated herein, final approval is hereby GRANTED. Class counsel's fee petition is GRANTED IN PART AND DENIED IN PART.

STATEMENT

Prior orders summarized the history of this action so it will not be repeated herein (Dkt. Nos. 138, 159, 163). In brief, this is a civil antitrust class action following a guilty plea to a per se violation of Section 1 of the Sherman Antitrust Act. United States v. Lord, No. 12-cr-326 (N.D. Cal. 2012). After class certification and rejection of two prior iterations of proposed class settlements, a December 2014 order granted preliminary approval of the instant proposed claims-made class settlement. The class administrator mailed notice of the proposed class settlement and fee petition along with claim forms to class members and thrice published a banner-styled notice in an online trade website.

No one objected to the class settlement. No one opted out of the class settlement. Out of more than 1, 100 class members, 138 timely submitted claim forms. For notices returned as undeliverable, the class administrator searched the National Change of Address database and mailed new notices and claim forms. An April 2015 order, in turn, extended the deadline by one month so the class administrator could distribute a second class notice (with claim forms), reminding class members to submit claim forms by the extended deadline. The parties also searched for updated addresses, email addresses, and fax numbers so that further notice packets (with an additional two-week extension for claim forms) could be distributed.

To date, a total of 240 claim forms have been submitted. The claim forms account for 65 percent of class commerce. Now, the deadline to submit claim forms has elapsed. This order follows full briefing and oral argument. No one showed up to object to the class settlement or fee petition, despite notice of the hearing date.

ANALYSIS

1. NOTICE.

Rule 23(c)(2)(B) requires the "best notice [of class certification] that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Rule 23(e)(1) requires "notice [of a class settlement] in a reasonable manner to all class members who would be bound by the proposal." Our court of appeals has recognized that "[i]n a majority of class actions at least some unclaimed damages or unlocated class members remain." Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1306 (9th Cir. 1990).

Here, an October 2014 order certified a nationwide Rule 23(b)(3) class of "all persons and entities in the United States who, between January 1, 2000 and September 30, 2011, directly purchased mesquite lump charcoal from any defendant" (Dkt. No. 138). The class was mainly composed of restaurants and food distributors.

To assemble the class list of direct purchasers spanning the eleven-year class period, the class administrator combed through multiple records. When notices returned as undeliverable, the class administrator searched the National Change of Address database and the parties searched for updated addresses, email addresses, and fax numbers. The class administrator then disseminated notices and claim forms using the collected information. As a supplement to individual notice, the class administrator thrice published in an online trade journal a banner-styled advertisement with a hyperlink to the class website.

No current addresses could be found for 140 class members despite reasonable search efforts. Defendants suspect that these entities are "no longer in business" (Dkt. No. 174). Since the notices for these 140 class members were returned as undeliverable and no current addresses were found for them, this order hereby EXCLUDES from the class settlement the 140 class members listed in Attachment A appended to docket number 174 and Attachment A appended to docket number 177. These class members are not bound by the settlement release and will not receive a share of the settlement fund.

With that said, given the notice provided and the scope of this nationwide antitrust class action, this order finds that the class administrator gave the best notice practicable under the ...


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