United States District Court, N.D. California
ORDER DENYING MOTION FOR DISCLOSURE RE: DKT. NOS.
PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE.
member Theodore Frank's motions to intervene and for
disclosure came on for hearing before this court on April 25,
2018. Frank appeared on his own behalf. Todd Seaver appeared
on behalf of the plaintiff class. Defendant Wal-Mart Stores,
Inc. (“Wal-Mart”) appeared through its counsel,
Paula Render. Having read the papers filed by the parties and
carefully considered their arguments and the relevant legal
authority, and good cause appearing, the court hereby rules
motions concern an antitrust action filed in 2009 in which
the plaintiff class alleged that Netflix and Wal-Mart
violated antitrust laws by entering into an illegal agreement
in the online DVD rental market. Dkt. 22. On July 1, 2011,
the plaintiff class and Wal-Mart entered into a settlement
agreement that allowed class members to choose between a
Wal-Mart gift card with no expiration date or cash (of equal
amount). `Dkt. 454-1, Ex. B. Frank now seeks to intervene in
the action in order to request that the court order Wal-Mart
to compile and disclose statistics about how many class
members have used their gift cards.
is the founder and director of the Competitive Enterprise
Institute's Center for Class Action Fairness, which
litigates against what it sees as unfair class-action
procedures and settlements. Frank is also a member of the
settling class, and on February 14, 2012, he objected to the
settlement. Dkt. 581. Frank argued then that the settlement
was a coupon settlement subject to the heightened judicial
scrutiny and fee limitations of the Class Action Fairness Act
and that the attorneys' fees were based on an inflated
settlement fund that did not consider the number of e-gift
cards redeemed. Id.
March 29, 2012, this court approved the settlement (Dkt.
609), and on February 27, 2015, the Ninth Circuit affirmed
the court's approval of the settlement and attorneys'
fee award as fair, reasonable, and adequate. In re Online
DVD Rental Antitrust Litig., 779 F.3d 934 (9th Cir.
2015). In its final approval order, this court
“retain[ed] jurisdiction over (a) implementation of the
Settlement and the terms of the Agreement; (b) distribution
of the Class Settlement Amount, the Class Representative
Incentive Payments, the Attorneys' Fees and Costs Amount;
and (c) all other proceedings related to the implementation,
interpretation, administration, consummation, and enforcement
of the terms of the Agreement and the Settlement, and the
administration of Claims submitted by Class Members.”
Dkt. 609 ¶ 15.
states that on November 5, 2015, all e-gift cards were issued
to class members by email. Dkt. 671 at 5; Dkt. 672 at 3.
Class members could submit a request for the claims
administrator to reissue a check or e-gift card until
February 3, 2016. Id. Of the 439, 398 class members
that requested the cash option of the settlement, 119, 581
class members failed to cash checks worth a total of $1, 473,
237.92 by the March 31, 2016 check expiration date. Dkt. 659
at 3. In addition, the settlement administrator was unable to
distribute 76, 008 e-gift cards with a face value of $936,
418.56. Id. On August 31, 2016, the court ordered a
second round of distribution of e-gift cards of $3.62 each to
account for most of the undistributed funds. Dkt. 668; Dkt.
669. That order was later modified to require gift cards of
$3.66 each to issue to fewer class members, because fewer
class members had valid email addresses than originally
anticipated. Dkt. 670. Any remaining amounts available after
that distribution were to be distributed to two cy pres
recipients, the Corporation For Public Broadcasting and the
International Center for Law and Economics. Dkt. 668; Dkt.
December 14, 2017, Frank requested the current e-gift card
redemption rate from Wal-Mart. Wal-Mart declined to provide
the requested information, maintaining that it would be
meaningless and incomplete, and stated that Wal-Mart has
never itself inquired into the redemption rate. The parties
met and conferred, and Wal-Mart refused to provide Frank with
the information he seeks.
now moves for leave to intervene and moves the court to
require Wal-Mart to compile and disclose the redemption rate
for the Wal-Mart e-gift cards, i.e., how many, and what
percentage, of the e-gift cards distributed to class members
under the settlement agreement have been used by class
members, and whether Wal-Mart has realized any income from
unredeemed e-gift cards.
III of the United States Constitution limits the power of the
courts to the resolution of actual ‘Cases' and
‘Controversies.'” Ass'n of Pub.
Agency Customers v. Bonneville Power Admin., 733 F.3d
939, 969 (9th Cir. 2013) (quoting U.S. Const., art. III,
§ 2). The “irreducible constitutional minimum of
standing contains three elements. First, the plaintiff must
have suffered an injury in fact-an invasion of a legally
protected interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or hypothetical.
Second, there must be a causal connection between the injury
and the conduct complained of-the injury has to be fairly
traceable to the challenged action of the defendant, and not
the result of the independent action of some third party not
before the court. Third, it must be likely, as opposed to
merely speculative, that the injury will be redressed by a
favorable decision.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61 (1992) (citations and
internal quotation marks omitted).
plaintiff must demonstrate standing for each claim he seeks
to press” and “‘for each form of
relief'” that is sought. Davis v. Fed. Election
Comm'n, 554 U.S. 724, 734 (2008) (quoting
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352
(2006)); accord Washington Envtl. Council v. Bellon,
732 F.3d 1131, 1139 (9th Cir. 2013); Town of Chester,
N.Y. v. Laroe Estates, Inc., 137 S.Ct. 1645, 1651 (2017)
(“The same principle applies when there are multiple
plaintiffs”: intervenor or plaintiff “must
demonstrate Article III standing when it seeks additional
relief beyond that which the plaintiff requests”);
Oregon Prescription Drug Monitoring Program v. U.S. Drug
Enf't Admin., 860 F.3d 1228, 1234 (9th Cir. 2017)
(same). “Most standing cases consider whether a
plaintiff has satisfied the requirement when filing suit, but
Article III demands that an ‘actual controversy'
persist throughout all stages of litigation.”
Hollingsworth v. Perry, 570 U.S. 693, 705 (2013).
For example, a party must have Article III standing both to
initiate an action and to seek review on appeal.
Arizonans for Official English v. Arizona, 520 U.S.
43, 64 (1997).