ORDER REGARDING PROPOSED NOTICE AND SUMMARY JUDGMENT HEARING

Re: Dkt. Nos. 89, 90

LUCY H. KOH, District Judge.

On April 1, 2016, Defendants filed an administrative motion to continue the hearing on the parties' cross-motions for summary judgment, currently set for April 14, 2016, at 1:30 p.m. ECF No. 89. As Defendants note, on November 12, 2015, the Court certified a class action in the instant case pursuant to Federal Rule of Civil Procedure 23(b)(3). ECF No. 67. Under Federal Rule of Civil Procedure 23(c)(2), the parties were required to provide notice and an opportunity to opt out to potential Class Members. Fed. R. Civ. P. 23(c)(2)(B). The parties have not yet sent a notice to potential Class Members. Generally, dispositive motions in class actions, which include motions for summary judgment, should be decided after all potential Class Members receive notice. See, e.g., Schwarzchild v. Tse, 69 F.3d 293, 295 (9th Cir. 1995) ("The purpose of Rule 23(c)(2) is to ensure that the plaintiff class receives notice of the action well before the merits of the case are adjudicated."). Accordingly, Defendants request that the Court continue the hearing on the parties' cross-motions for summary judgment until after notice is sent.

On April 1, 2016, the parties filed a stipulation which included a proposed Notice and Opt Out Form. ECF No. 90. On April 4, 2016, Plaintiffs filed a response to Defendants' administrative motion. ECF No. 91. Plaintiffs contended that although "notice must be sent to the Plaintiff class before the summary judgment hearing, the class is not required to respond to the notice before the summary judgment motions are heard or decided." Id. at 4.

The Ninth Circuit has not applied a bright line rule regarding when notice must be sent, when class members must opt out, and when the Court may decide motions for summary judgment in the class action context. In Torrisi v. Tucson Electric Power Co., 8 F.3d 1370, 1374 (9th Cir. 1993), "notice was mailed to some shareholders as late as February 11, 1992," with the settlement hearing scheduled for February 20, 1992. However, after the Ninth Circuit determined that many notices had in fact been mailed in January 1992, the Ninth Circuit held that, considering all of the circumstances, "the timing of the notice was not inadequate." Id. at 1375. Similarly, in Marshall v. Holiday Magic, Inc., 550 F.2d 1173, 1178 (9th Cir. 1997), the Ninth Circuit upheld the district court's decision to approve the mailing of class notice where there "were 26 days between the mailing of the notice and the deadline for opting out."

In accordance with Torrisi and Holiday Magic, this Court suggests changing the opt out deadline on the proposed Notice from April 14, 2016 to May 5, 2016. In addition, in order to streamline the opt out process, the Court proposes that potential Class Members opt out by mailing the opt out form to the Court, rather than to Class Counsel and Defendants' Counsel. Finally, the Court has corrected errors and made other suggested edits. All of these changes have been incorporated into the attachments accompanying this Order. See ECF No. 92-1 (redline copy of Notice); ECF No. 92-2 (redline copy of Opt Out Form); ECF No. 92-3 (clean copy of Notice); ECF No. 92-4 (clean copy of Opt Out Form). The Court requests that the parties file a joint statement by April 6, 2016 indicating whether the parties agree with the proposed amendments. If so, the parties shall file a stipulation amending the proposed Notice and Opt Out Form to conform with these amendments.

The hearing on the parties' cross-motions for summary judgment, currently set for April 14, 2016, at 1:30 p.m., is hereby CONTINUED to May 12, 2016, at 1:30 p.m. A further case management conference is also set for May 12, 2016, at 1:30 p.m. The parties shall file their joint case management statement by May 5, 2016. The final pretrial conference, currently set for June 16, 2016, at 1:30 p.m., remains as set. A seven-day jury trial, currently set to begin on June 27, 2016, at 9:00 a.m., also remains as set.

CONCLUSION

The relevant deadlines set forth in this Order and the remaining dates in the case schedule are as follows:

IT IS SO ORDERED.